2025-0430 - Purchase Sale Agreement w-Exhs (clean).pdf
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PURCHASE AND SALE AGREEMENT
(WITH ESCROW INSTRUCTIONS)
THIS PURCHASE AND SALE AGREEMENT (WITH ESCROW INSTRUCTIONS)
(this “Agreement”) is made as of the 15th day of April, 2025 (“Effective Date”), by and
between Win Oil Company, Inc., an Arizona corporation (“Seller”) and the CITY OF
BUCKEYE, ARIZONA, an Arizona municipal corporation (“Buyer” or “City”).
In consideration of the obligations and undertakings hereinafter set forth, and in
consideration of the sums to be paid by Buyer, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Seller and
Buyer agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE PROPERTY
Section 1.1. Purchase. Subject to the terms, provisions, covenants and
conditions contained herein, Seller hereby agrees to sell and convey to Buyer, and Buyer
agrees to purchase from Seller, all of Seller’s right, title and interest in and to the following
property (“Property”):
(a)
That certain land comprised of approximately 3.94+ acres, bearing
Maricopa County Assessor’s Parcel Numbers 400-75-105J, -105K, and -106, and located
in Maricopa County, Arizona, more particularly described and generally depicted on
Exhibit “1”, attached hereto and incorporated herein by this reference (the “Land”),
together with all rights, easements and privileges appurtenant thereto including, but not
limited to, all of Seller’s right, title and interest in and to any adjacent streets, roads, strips,
gores, alleys and right–of-way and any subsurface use of the Land; and
(b)
All air rights, development rights, water rights (groundwater or surface),
minerals and mineral rights, sand and gravel, oil and gas, wells, well sites, stock ponds,
well equipment and well rights, appurtenant to the Land.
Section 1.2. Purchase Price. Subject to the Sale Option set forth in Section 2.1
herein, the purchase price for the Property shall be One Million Five Hundred Thousand
and 00/100 Dollars ($1,500,000.00) (“Purchase Price”). Buyer agrees to pay the
Purchase Price to Seller, subject to the prorations and adjustments set forth herein:
(a)
Earnest Money Deposit. Upon the Opening of Escrow (as hereinafter
defined), Buyer shall deposit with Escrow Agent by Buyer’s warrant the sum of Twenty
Five Thousand and 00/100 Dollars ($25,000.00) (the “Earnest Money Deposit”). The
Earnest Money Deposit shall become nonrefundable to Buyer following the expiration of
the Feasibility Period (unless Buyer shall have, prior to said date, exercised its right to
terminate this Agreement in accordance with the provisions of Article II below), except in
the event of a Seller default hereunder, or as otherwise expressly provided herein. The
Earnest Money Deposit shall be applied (and Buyer shall receive a credit in the amount
of the Earnest Money Deposit) toward the payment of the Purchase Price.
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(b)
Cash Due at Closing. The balance of the Purchase Price, One Million Four
Hundred Seventy-Five Thousand and 00/100 Dollars ($1,475,000.00), plus or minus
prorations and other adjustments as provided in this Agreement, shall be due at Closing
and shall be paid by Buyer to Escrow Agent, for and on behalf of Seller, at Closing (as
hereinafter defined).
(c)
Acreage. The Purchase Price is based on $380,710.66 per Gross Acre (as
defined below) of the Property and 3.94 Gross Acres. If the Survey of the Property
pursuant to Section 2.1(f) below reveals that the Property contains more or less than
3.94+ Gross Acres, then the Purchase Price shall be increased or decreased, as the case
may be, so that the Purchase Price shall be an amount equal to the product obtained by
multiplying $380,710.66 per Gross Acre by the actual number of Gross Acres of the
Property. Gross acres (the “Gross Acres”) shall mean all land located within the
boundaries of the Property.
Section 1.3 Escrow Agent; Title Company; Escrow Provisions.
(a)
Seller and Buyer hereby appoint Kensington Vanguard National Land
Services, 2415 E Camelback Rd, Suite 450, Phoenix, Arizona, 85016 (“Escrow Agent”),
as the escrow agent for the transaction contemplated by this Agreement, with escrow to
be opened as of the date of delivery of a fully executed original of this Agreement to
Escrow Agent, together with the Earnest Money Deposit (the “Opening of Escrow”).
Upon Opening of Escrow, the Escrow Agent shall cause the Title Company to issue an
insured closing protection letter to each of Seller and Buyer.
(b)
Escrow Agent, as the party designated as the person responsible for closing
the transaction contemplated hereby within the meaning of Section 6045(a)(2)(A) of the
Internal Revenue Code, shall file all necessary information, reports, returns and
statements regarding this transaction as required by the Code, including, without
limitation, any tax reports required pursuant to Section 6045 of the Code.
(c)
If Closing fails to occur because of Seller’s default, Seller shall be liable for
any expenses, fees or cancellation charges of Escrow Agent. If Closing fails to occur
because of Buyer’s default, Buyer shall be liable for any expenses, fees or cancellation
charges of Escrow Agent. If Closing fails to occur for any other reason, including a
termination by Buyer as allowed hereunder, Seller and Buyer shall each be liable for one-
half of any expenses, fees or cancellation charges of Escrow Agent. Any such expenses,
fees or cancellation charges of Escrow Agent shall be reasonable and customary.
Section 1.4 Title Insurance. Seller shall cause First American Title Insurance
Company (“FATCO” or “Title Company”) to issue at Closing, or to unconditionally commit
at Closing to issue an ALTA extended owner’s title insurance policy (“Owner’s Policy”)
insuring Buyer’s title to the Property in the amount of the Purchase Price. Seller shall pay
the premium charge for a standard owner’s title policy and, if further coverage or
endorsements are desired by Buyer, Buyer shall order same from Title Company and pay
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all additional premiums and all other costs. Seller shall deliver to FATCO the Title
Company’s standard form of owner’s affidavit to provide Buyer with extended coverage
rights under the Owner’s Policy.
ARTICLE II
INVESTIGATION OF THE PROPERTY
Section 2.1 Appraisal and Sale Option; Title Report and Objections; Survey;
Environmental Report.
(a)
Kurt Kleinman Appraisal. Promptly upon Escrow opening, the Parties
shall mutually instruct Kurt Kleinman (“Appraiser” or “Kleinman”) to complete an
appraisal of the Property. The Parties agree to share Mr. Kleinman’s fee equally, with
each party to bear 50% of the total cost of the Appraiser’s fee.
(i)
Market Value.
Mr. Kleinman will appraise the Market Value of
the Property as defined in the then-current edition of the Uniform Standards
of Professional Appraisal Practice, Appraisal Foundation using, to the
extent applicable, all three standard appraisal methods of valuation (the
Sales Comparison Approach, the Cost Approach, and the Income
Approach). The date of valuation will be April 15, 2025.
(ii)
Cooperation; Extension of Appraisal Time.
Seller
must
cooperate with Mr. Kleinman and with City by providing any information
requested by the appraiser or by City, if such information is readily available
and in Seller’s immediate possession and control; and by cooperating in all
other aspects of the appraisal process. If Seller does not cooperate by
providing information and access, then the time for appraisal and the time
for exercise of City's rights under Article II hereof are extended by the time
of delay or non-cooperation plus an extra ten (10) days per event; and Mr.
Kleinman may make assumptions in place of the denied information and
access.
(iii)
Exercise of Option. Mr. Kleinman’s appraisal report shall be
provided contemporaneously to Seller, City, and the Escrow Agent. If the
Market Value of the Land is less than the Purchase Price, the date when
the Escrow Agent, Seller, and City have received Mr. Kleinman’s appraisal
report (“Appraisal Report”), shall start an Option Exercise Period in which
Seller may exercise the option to sell the Property at the Market Value by
giving written notice to the City within ten (10) business days (“Sale
Option”). If Seller exercises the Sale Option at any time during the Option
Exercise Period, then Seller is obligated to sell the Property to City, and City
will be obligated to purchase the Property, at the Appraised Market Value,
which will then be the modified purchase price. By way of example only, if
the Appraised Market Value is $1,450,000.00, and Seller exercises the Sale
Option, the Purchase Price under Section 1.2 will be $1,450,000.00, and
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Cash Due at Closing, Acreage, and Escrow closing costs will be calculated
accordingly. Should Seller not exercise the Sale Option, then this
Agreement will terminate upon the expiration of the Option Exercise Period,
and Section 1.3(c), “any other reason” and Section 2.4, “termination,” shall
apply.
(b)
Within ten (10) business days following the Opening of Escrow, Escrow
Agent shall cause FATCO to issue and deliver to Buyer and Seller a preliminary
commitment for title insurance concerning the Property together with complete and legible
copies of all instruments referred to therein (collectively, the “Title Report”). The Title
Report is to be preliminary to the Owner’s Policy to be issued by Title Company. The
Title Report shall show the ownership of any rights-of-way abutting the Property to the
centerline thereof whether or not such roadway is owned by Seller. Buyer shall have ten
(10) days after receipt of the Title Report in which to advise Seller, in writing, either (i)
that the condition of title to the Land as evidenced by the Title Report is acceptable; or (ii)
to object to any easements, liens, encumbrances or other items, exceptions or
requirements
in
the
Title
Report
(collectively
“Buyer’s
Title
Objections”).
Notwithstanding anything herein contained to the contrary, Seller shall be under an
affirmative obligation to eliminate the following title matters on or before the Close of
Escrow, and Buyer shall have no obligation to object to the same for such removal: (i) any
voluntary financing liens against the Property that may be satisfied by a cash payment,
and (ii) any judgment liens, mechanics’ or materialmen’s liens, tax liens or other
non-consensual monetary liens that may be satisfied by a cash payment, other than liens
for non-delinquent real estate taxes and permitted assessments. Seller is permitted to
(a) bond or insure over any mechanics’ or materialmen’s liens and other liens in
accordance with applicable law and (b) satisfy any of the matters set forth in the
immediately preceding sentence at the Closing by utilizing the proceeds of the sale
contemplated hereby. If Buyer shall not have notified Seller of Buyer’s Title Objections
within such time specified above, Buyer shall be deemed to have approved the condition
of title of the Land as shown by the Title Report and elected to proceed toward Closing.
(i)
Seller shall have five (5) business days after Seller’s receipt of
Buyer’s Title Objections (if any) within which to advise Buyer, in writing,
whether Seller will attempt to cure any or all of Buyer’s Title Objections by
Closing (“Seller’s Title Notice”). If Seller does not so notify Buyer within
the time specified, Seller shall be deemed to have delivered Seller’s Title
Notice to Buyer on the fifth (5th) business day after receiving Buyer’s Title
Objections stating that Seller is unwilling to cure Buyer’s Title Objections.
(ii)
On or before the fifth (5th) day after Buyer’s receipt (or deemed
receipt) of Seller’s Title Notice, if Seller shall not have agreed to cure or
attempt to cure all of Buyer’s Title Objections, Buyer shall either (i) waive,
in writing, the curing of such Buyer’s Title Objections as Seller shall have
been unwilling to cure and proceed toward Closing; or (ii) elect to terminate
this Agreement by giving written notice to Seller, in which event the Earnest
Money Deposit shall be returned to Buyer and this Agreement shall
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terminate as provided in Section 2.4 hereof. Notwithstanding the foregoing,
if Buyer fails to so provide such notice, Buyer shall be deemed to have
elected to cancel this Agreement, in which event the Earnest Money Deposit
shall be returned to Buyer and this Agreement shall terminate as provided
in Section 2.4 hereof. If Seller shall elect to attempt to cure Buyer’s Title
Objections and should Seller thereupon fail to cure Buyer’s Title Objections
by the Closing, Buyer shall either (A) waive, in writing, the curing of such
Buyer’s Title Objections and proceed toward Closing; or (B) elect to
terminate this Agreement by giving written notice to Seller, in which event
the Earnest Money Deposit shall be returned to Buyer and this Agreement
shall terminate as provided in Section 2.4 hereof. Notwithstanding the
foregoing, if Buyer fails to so provide such notice, Buyer shall be deemed
to have elected to cancel this Agreement, in which event the Earnest Money
Deposit shall be returned to Buyer and this Agreement shall terminate as
provided in Section 2.4 hereof.
(iii)
If at any time prior to Closing, Title Company shall issue a
supplemental title report that discloses additional matters (other than
matters created by or with the written consent of Buyer or arising as a result
of any work performed by or other activities of Buyer regarding the
Property), the provisions set forth above in this Section 2.1 shall govern the
review, objection, and resolution obligations of the parties with respect to
such additional matters; provided that Buyer shall have only five (5) days to
deliver any objection to Seller following Buyer’s receipt of such
supplemental report and copies of any additional documents disclosed
therein. If Buyer fails to deliver any objection, Buyer shall be deemed to
have elected to proceed toward Closing.
All matters that are either approved or deemed approved pursuant to this Section 2.1(b),
together with the standard printed exceptions in the Title Report, shall be referred to as
the “Permitted Exceptions.”
(c)
Surveys of Land.
Buyer hereby acknowledges that Seller does not have
any surveys of the Land (or any portion thereof)available to provide to Buyer. Buyer may,
at its option, obtain, at Buyer’s own cost and expense, a survey of the Property, prepared
by a licensed Arizona land surveyor, certified to Buyer, Seller and the Title Company (the
“Survey”). Buyer shall have the right to review and approve the Survey in connection
with the Title Report referenced above. Buyer shall have the same amount of time as set
forth in Section 2.1(b) (i.e., ten (10) business days after receipt of the Title Report) above,
in which to object to matters set forth in the Survey and Seller shall have the same amount
of time set forth in Section 2.1(b)(ii) (i.e., five (5) business days) above to respond to
Buyer’s objections. In addition, if Buyer finds anything in the Survey objectionable to
Buyer in its sole and absolute discretion, Buyer shall have the same rights to terminate
this Agreement as set forth in Section 2.1(c) above, including, without limitation, the right
to the return of the Earnest Money Deposit.
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(d)
Environmental Assessment.
Buyer, at Buyer’s cost, may obtain a
Phase I Environmental Report (“Phase I”), or proceed directly to a Phase II Environmental
Report (the “Phase II”) for the Property. In the event the Phase I recommends further
site investigation, or if Buyer elects to proceed directly to a Phase II, Buyer shall have the
right to conduct a Phase II environmental investigation pursuant to a work plan approved
in advance by Seller, which may include but is not necessarily limited to a geographical
survey and soil sampling of the Land. Subject to the following provisions of this Section
2.1(d), Buyer may elect at its sole cost and expense to perform all remedial action
recommended in said Phase II investigation prior to Closing. If the cost of the
recommended remedial action exceeds $50,000, Buyer shall have the option to elect to
terminate this Agreement by giving written notice to Seller, in which event the Earnest
Money Deposit shall be returned to Buyer and this Agreement shall terminate as provided
in Section 2.4 hereof. If the cost of the recommended remedial action exceeds the
Purchase Price, either Seller or Buyer shall have the option to elect to terminate this
Agreement by giving written notice to the non-terminating party, in which event the
Earnest Money Deposit shall be returned to Buyer and this Agreement shall terminate as
provided in Section 2.4 hereof.
Section 2.2. Inspection of Property during Feasibility Period.
(a)
Buyer shall have until the date (the “Feasibility Date”) which is Sixty (60)
days from the date of the later of the (i) receipt of the Appraisal Report, and (ii) expiration
of the Option Exercise Period (Section 2.1(a)(iii)) (the “Feasibility Period”) to investigate
the Property and all matters relevant to its acquisition, development, usage, occupancy,
operation or marketability; such right of investigation shall include, without limitation, the
right to have made any surveys, architectural and engineering studies, environmental
studies, soil borings and similar examinations, tests, studies and inspections of the
Property as Buyer may deem necessary or appropriate (collectively, the “Inspections”).
Said period shall be tolled for each day the Seller's deliveries are delinquent. Thereafter,
Buyer shall continue to have a right of entry onto the Property for general review
purposes, subject to the terms and provisions of this Agreement. Buyer shall and does
hereby agree to repair any damage to the Property resulting from the Inspections and, to
the extent permitted by law, to indemnify, defend, protect and hold harmless Seller from
any and all liabilities, claims, losses, damages and expenses, including but not limited to
court costs and reasonable attorneys’ fees and any liens placed upon the Property, which
may be incurred by Seller because of the Inspections, other than claims for diminution in
value or other economic effects resulting from Buyer’s discovery of existing hazardous
materials or pollutants or other negative information regarding the Property or Buyer’s
election to terminate this Agreement. Any provision of this Agreement to the contrary
notwithstanding, the indemnity by Buyer set forth in this Section shall survive Closing or
any termination of this Agreement.
(b) On or before the expiration of the Feasibility Period, Buyer may terminate this
Agreement for any reason whatsoever by submitting to Seller written notice of Buyer’s
desire to terminate this Agreement. Buyer shall not be obligated to explain its reasons for
terminating this Agreement in such written notice to Seller. If Buyer elects to terminate
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this Agreement, the Earnest Money Deposit shall be returned to Buyer and this Agreement
shall terminate as provided in Section 2.4. In the alternative, no later than ten (10) days
prior to the Feasibility Date, Buyer may elect to provide Seller written notice setting forth
Buyer’s dissatisfaction with the condition of the Property, citing specific items Buyer
disapproves of (“Buyer’s Inspection Objections”), and providing Seller an opportunity to
correct such disapproved items. Seller shall have until 5:00 p.m. on the day preceding the
Feasibility Date within which to advise Buyer, in writing, whether Seller will cure any or all
of Buyer’s Inspection Objections by Closing (“Seller’s Inspection Notice”). If Seller does
not so notify Buyer within the time specified, Seller shall be deemed to have declined to
cure Buyer’s Inspection Objections. On or before the expiration of the Feasibility Period,
if Seller shall not have agreed to cure all of Buyer’s Inspection Objections, Buyer shall
either (i) waive, in writing, the curing of such Buyer’s Inspection Objections as Seller shall
have been unwilling to cure and proceed toward Closing; or (ii) elect to terminate this
Agreement by giving written notice to Seller, in which event the Earnest Money Deposit
shall be returned to Buyer and this Agreement shall terminate as provided in Section 2.4
hereof. Notwithstanding the foregoing, if Buyer fails to so provide such notice, Buyer shall
be deemed to have elected to cancel this Agreement as of the Feasibility Date, in which
event the Earnest Money Deposit shall be returned to Buyer and this Agreement shall
terminate as provided in Section 2.4 hereof. If Seller shall elect to cure Buyer’s Inspection
Objections and should Seller thereupon fail to cure Buyer’s Inspection Objections on or
prior to the Closing Date, Buyer shall either (A) waive, in writing, the curing of such Buyer’s
Inspection Objections as Seller shall have been unable to cure and proceed toward
Closing; or (B) elect to terminate this Agreement by giving written notice to Seller, in which
event the Earnest Money Deposit shall be returned to Buyer and this Agreement shall
terminate as provided in Section 2.4 hereof.
(c)
No later than the expiration of the Feasibility Period, and upon Buyer’s
request, Seller will cooperate with the annexation of any portion of the Property situated
in unincorporated territory (i.e., Maricopa County), into the City of Buckeye, pursuant to
Ariz. Rev. Stat. § 9-471, et. seq. Buyer acknowledges that any and all costs associated
with the annexation shall be borne by Buyer, and Seller’s approval of the final application
and petition for annexation as further detailed in the “Development Code of the City of
Buckeye, Arizona” Article 8.16.2 shall be required, but not unreasonably withheld. Seller’s
approval is required to ensure that Seller is fully aware of any obligations which may be
imposed upon the owner of the Property by the Development Services Staff and Project
Coordinator in conjunction with the annexation application and petition, prior to any
ordinance being adopted. Seller cooperation shall include, but is not necessarily limited to,
signing an annexation petition and a sworn verification that the territory described in the
annexation petition is not already subject to an earlier filing for annexation, as required by
the county recorder.
Section 2.3 Water. Seller’s actual knowledge of water pertaining to the Property
is limited to the information included in the twenty-two page PDF document titled Well
Registry – 55-539022 (“Well Registry PDF”). Seller shall not modify any Property water
and water rights without the prior written consent of Buyer. All of Seller’s rights in such
water shall be conveyed to Buyer at the Closing either by the Deed (as defined below) or
other applicable instrument.
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Section 2.4 Termination. Upon any termination by either of the parties hereto
as expressly allowed under this Agreement, (a) Buyer shall promptly return to Seller any
materials concerning the Property previously delivered by Seller or Seller’s
representatives to Buyer (“Property Information”); (b) any funds held by Escrow Agent
shall be immediately delivered by Escrow Agent to the party which this Agreement
specifies is entitled thereto; and (c) the parties shall thereafter be relieved from further
liability hereunder, except with respect to any obligations which expressly survive the
termination of this Agreement. A copy of any notice of termination allowed under this
Agreement shall also be sent to Escrow Agent by the party electing to terminate.
Section 2.5 Acts Affecting the Property. From and after the date hereof, Seller,
unless otherwise agreed to in writing by Buyer, will refrain from (a) performing any
construction upon or about the Property; (b) creating or incurring, or suffering to exist any
private sewer or water agreement, improvement district, community facilities district,
lease, occupancy right, mortgage, lien, pledge or other encumbrances in any way
affecting the Property, other than those released on or before Closing; (c) forming any
association or district; (d) amending any Permitted Exception; or (e) except as may arise
or result from the activities of Buyer on or relating to the Property, Seller will observe all
laws, ordinances, regulations and restrictions materially affecting the Property and its use,
and will pay taxes on the Property not later than the Closing for the period preceding the
Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Seller’s Covenants, Representations and Warranties. Seller
covenants, represents and warrants to the actual present knowledge of (qualified as
described below), to Buyer as follows:
(a)
Engineering Plans and Studies. Within five (5) days of the Opening Date,
Seller shall furnish to Buyer the Well Registry PDF, an ADEQ Closure Letter from 2012,
and an AAR Vacant Land/Lot Seller’s Property Disclosure Statement. Buyer
acknowledges that Seller does not have any property information to share beyond these
items (the “Property Information”) and all such information may be used by Buyer in
such manner as it desires. Buyer understands and acknowledges that Seller is providing
any Property Information to Buyer merely as an accommodation, and, except as
otherwise expressly stated in this Agreement, Seller is not in any way representing or
warranting the accuracy, sufficiency or completeness of any documentation or information
provided to Buyer, Seller having recommended to Buyer that it conduct its own
examination, inspection and investigation of the Property and the Development during the
Investigation Period, including the subsurface thereof and all soil, engineering and other
conditions and requirements pertaining to the Property and in any way pertaining to the
ownership and development of the Property. Seller shall use good faith efforts to cause
to be provided to Buyer, at Buyer’s request and expense, reliance letters from the
consultants or others responsible for preparation of the environmental, biological,
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geotechnical, cultural resource, archeological and similar reports and/or studies
comprising a portion of the Property Information.
(b)
Seller has the full right and authority to enter into this Agreement and
consummate the transaction contemplated by this Agreement. All requisite action has
been and will be taken by and on behalf of Seller in connection with the entering into of
this Agreement, the instruments referenced herein and consummating the transaction
contemplated hereby. The person(s) and/or entity(ies) signing this Agreement on behalf
of Seller are authorized to do so. Seller shall furnish to the Title Company such
documentation to evidence such authority as the Title Company shall reasonably request.
(c)
Any third-party approvals or consents which may be required for Seller to
enter into this Agreement or to consummate the transaction contemplated hereby have
been, or will prior to Closing be, obtained by Seller. This Agreement and all documents
required hereby to be executed by Seller are and shall be valid, legally binding obligations
of Seller, enforceable against Seller in accordance with their terms.
(d)
To the best of Seller’s knowledge: (i) neither the execution of this
Agreement nor the performance hereof by Seller will result in any breach or violation of
the terms of any law, rule, ordinance, or regulation or of any decree, judgment or order to
which Seller is a party now in effect from any court or governmental body; (ii) there are
no consents, waivers, authorizations or approvals from any third party necessary to be
obtained by Seller in order to carry out the transactions contemplated by this Agreement;
and (iii) the execution and delivery of this Agreement and performance hereof by Seller
will not conflict with, or result in a breach of, any of the terms, conditions or provisions of,
or constitute a default under or result in the creation of any new, or the acceleration of
any existing, lien, charge, or encumbrance upon the Property, or any indenture,
mortgage, lease, agreement, or other instrument to which Seller is a party and which is
binding on the Property or would prevent Seller from consummating the transactions
contemplated herein.
(e)
Seller has no knowledge of any pending or threatened condemnation or
similar proceeding by any person or entity other than Buyer affecting the Property or any
portion thereof.
(f)
Seller has not: (i) made a general assignment for the benefit of creditors;
(ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition
by Seller’s creditors; (iii) suffered the appointment of a receiver to take possession of all
or substantially all of Seller’s assets; (iv) suffered the attachment or other judicial seizure
of all, or substantially all, of Seller’s assets; (v) admitted in writing Seller’s inability to pay
its debts as they come due; or (vi) made an offer of settlement, extension or composition
to its creditors generally.
(g)
At the Close of Escrow there will be no pending actions, suits, arbitrations,
claims or proceedings, at law or in equity, affecting all or any portion of the Property or in
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which Seller is a party by reason of Seller’s ownership of the Property, which are not
properly bonded over.
(h)
Seller has no knowledge, and Seller has received no notice to the contrary,
of any plan, study or effort of regulatory authorities which would materially affect the use
of the Property, or any portion thereof, for its intended uses or any intended public
improvements which will result in any charge being levied against, or any lien assessed
upon, or any special assessment lien on the Property or any portion thereof.
(i)
Other than this Agreement, Seller has not entered, and shall not enter, into
any contracts, options or other obligations or rights for the purchase or sale of the
Property. Seller has not entered into any leases, rights of occupancy or first refusals or
options to purchase the Property.
(j)
No notices of violation of any governmental regulations relating to the
Property have been received by Seller and, to Seller’s actual knowledge, no such
violations exist.
(k)
Except as set forth in the Title Report, Seller has no actual knowledge of
any special assessments or charges which have been levied against the Property or any
existing water, sewer or building moratoria affecting the Property.
(l)
There are no mechanics’ or materialmen’s liens perfected against the
Property by parties claiming through Seller. Seller shall cause to be released and
discharged promptly, and shall indemnify, defend and hold Buyer harmless for, from and
against any liens filed against the Property through parties claiming through Seller prior
to or after the Close of Escrow in violation of this warranty.
(m)
To Seller’s knowledge, there has been no production, disposal, or storage
on the Property of any hazardous waste or other toxic or radioactive substance or matter
by Seller, nor has Seller received any actual notices of any violation of hazardous waste
statutes or regulations. To Seller’s actual knowledge, there is no proceeding or inquiry
by any authority with respect thereto, nor has Seller received any notice of any violation
of the above-mentioned statutes or regulations or any information which would constitute
or lead to a violation thereof.
(n)
There are no licenses, agreements, leases, options, contracts or rights of
purchase or first refusal, recorded or unrecorded, whatsoever affecting the Property.
Seller will not, without the prior written consent of Buyer, consent to or convey any interest
in the Property, and Seller will not consent to or subject the Property to any additional
liens, encumbrances, covenants, conditions, easements, rights-of-way or similar matters
after the date of this Agreement, which will not be eliminated on or prior to the Closing
Date. Seller shall not, without the prior written consent of Buyer, request or consent to or
cause to be issued a subdivision public report for all or any portion of the Property. Seller
shall not, without the prior written consent of Buyer, consent to or cause to be executed
any zoning or other entitlement applications for all or any portion of the Property.
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(o)
To Seller’s actual knowledge, there are no habitat, wetlands, jurisdictional
waters or archaeological sites located on the Property.
(p)
To Seller’s actual knowledge, no portion of the Property is now being or has
ever been used for the discharge or disposal of a pollutant or waste, for the treatment or
disposal of refuse or sewage or for the operation of any underground storage tanks.
(q)
To Seller’s actual knowledge, unless addressed in the Well Registry PDF
or ADEQ Closure Letter, there are no wells, well sites, tanks (underground storage or
otherwise), or buried trash pits on the Premises. There are no well, water rights or water
or drainage agreements or obligations respecting the Property.
(r)
To Seller’s actual knowledge, there are no boundary line disputes.
The “actual knowledge” of Seller, as used in this Section 3.1, means the actual,
present knowledge of C. James Pugliano, President/CEO, as of the date of this
Agreement, without inquiry, duty of inquiry or duty to review any records or other
documents, and without imputation to C. James Pugliano of any knowledge held by any
other person. As to any of the representations or warranties in this Section 3.1 that are
based on Seller’s knowledge, if after the date of this Agreement and prior to the Closing,
Seller obtains actual knowledge (as defined in the first sentence of this paragraph) that
any of such representations or warranties have become incorrect or inaccurate in any
material respect, then Seller shall give notice thereof to Buyer by 5:00 p.m., Phoenix time,
on the date that is three (3) business days immediately following the date on which Seller
obtains knowledge of such incorrectness or inaccuracy. Upon giving such notice, Seller’s
representations and warranties in this Section 3.1 shall be deemed modified to the extent
described in the notice. Notwithstanding the foregoing, If Seller gives Buyer notice under
this paragraph of the modification of any of Seller’s representations or warranties, Buyer
shall have until 5:00 p.m., Phoenix time, on the date that is seven (7) business days
immediately following the date on which Buyer receives Seller’s notice to give Seller
notice of Buyer’s objection to such modifications if Buyer reasonably determines that the
new facts or conditions disclosed by such modifications reasonably could have a negative
impact on Buyer’s proposed development or use of the Property. If Buyer delivers the
objection notice within the time provided, Seller and Buyer shall proceed to negotiate in
good faith to resolve such objections; however, Seller shall have no obligation to pay any
monies or incur any liabilities or obligations to accomplish such resolution. If Buyer’s
objections are not resolved by the earlier of: (a) 5:00 p.m., Phoenix time, on that date that
is ten (10) days immediately following the date on which Seller receives notice of Buyer’s
objections; or (b) 12:00 noon, Phoenix time, on the Closing Date (the “Resolution
Deadline”), then Buyer shall either: (i) terminate this Agreement by giving notice of such
termination to Seller and to Escrow Agent by the Resolution Deadline, in which event the
Earnest Money Deposit shall be returned to Buyer and this Agreement shall terminate as
provided in Section 2.4 hereof; or (ii) waive such objections and proceed with Closing. If
Buyer does not give notice of termination by the Resolution Deadline, Buyer shall be
deemed to have waived its termination right.
Page 12 of 23
Notwithstanding anything to the contrary contained in this Agreement, it is
understood and agreed that all representations and warranties of the Seller set forth in
this Agreement shall survive the Closing of this Agreement for a period of one (1) year
following the Closing Date, and neither party shall have any liability of any kind
whatsoever for any breach thereof except to the extent a claim is asserted by the filing of
a legal proceeding against such party by such date, and in such event the survival period
for the representations and warranties in question shall be tolled while such action is
pending both at trial and on appeal and while any judgment arising from such action
remains unsatisfied.
Section 3.2. Buyer’s Covenants, Representations and Warranties. Buyer
covenants, represents and warrants to Seller as follows:
(a)
Buyer has the full right and authority to enter into this Agreement and
consummate the transaction contemplated by this Agreement. All requisite action has
been and will be taken by and on behalf of Buyer in connection with the entering into of
this Agreement, the instruments referenced herein and consummating the transaction
contemplated hereby provided, however, that this Agreement and any amendments
thereto are subject to the approval of the Buckeye City Council The persons and/or
entities signing this Agreement on behalf of Buyer are authorized to do so. Buyer shall
furnish to Seller such documentation to evidence such authority as Seller shall reasonably
request.
(b)
This Agreement and all documents required to be executed by Buyer are
and shall be valid, legally binding obligations of Buyer, enforceable against Buyer in
accordance with their terms.
Notwithstanding anything to the contrary contained in this Agreement, it is
understood and agreed that all representations and warranties of the Buyer set forth in
this Agreement shall survive the Closing of this Agreement for a period of one (1) year
following the Closing Date, and neither party shall have any liability of any kind
whatsoever for any breach thereof except to the extent a claim is asserted by the filing of
a legal proceeding against such party by such date, and in such event the survival period
for the representations and warranties in question shall be tolled while such action is
pending both at trial and on appeal and while any judgment arising from such action
remains unsatisfied.
Section 3.3. [Reserved]
Section 3.4. Survivability. All representations and warranties in this Article III
shall be true and correct as of the date hereof and shall be deemed reaffirmed by the
parties hereto as true and correct as of the Closing. All representations and warranties
of the parties set forth in this Article III shall survive the Closing for the periods described
above.
Page 13 of 23
ARTICLE IV
CLOSING
Section 4.1. Closing; Time of Closing. Buyer and Seller acknowledge and
agree that the “Closing Date” or “Closing” shall occur on or before the twenty-first
(21st) day following the Feasibility Date, or upon such earlier date upon which Buyer and
Seller shall agree.
Section 4.2. Buyer’s Obligation to Close. Buyer shall not be obligated to close
hereunder unless each of the following conditions shall exist on the Closing Date:
(a)
The Title Company shall be prepared to issue (or be prepared to
unconditionally commit to issue) the Title Policy, subject to (i) matters created by Buyer,
if any, and (ii) the Permitted Exceptions.
(b)
Seller shall have provided to Title Company evidence that Seller is
authorized to sell the Property to Buyer in accordance with the terms of this Agreement
(as amended, if applicable) and to enter into, execute, deliver and perform this
Agreement.
(c)
Seller’s representations and warranties made by Seller are true and correct
in all material respects on and as of the Closing Date with the same force and effect as if
made on and as of the Closing Date.
(d)
Seller shall have performed all covenants and obligations and satisfied all
conditions required by this Agreement to be performed or satisfied by Seller on or before
the Closing Date.
(e)
There shall have been no material adverse change in the physical condition
of the Property.
(f)
Unless waived in writing by Buyer, the Property shall be inside the city
boundaries of the City of Buckeye.
The provisions of this Section 4.2 are for the sole benefit of Buyer and may be waived by
Buyer in its discretion.
Section 4.3. Seller’s Obligation to Close. Seller shall not be obligated to close
hereunder unless each of the following conditions shall exist on the Closing Date: (a)
Buyer’s representations and warranties made by Buyer are true and correct in all material
respects on and as of the Closing Date with the same force and effect as if made on and
as of the Closing Date; and (b) Buyer shall have performed all covenants and obligations
and satisfied all conditions required by this Agreement to be performed or satisfied by
Buyer on or before the Closing Date. The provisions of this Section 4.3 are for the sole
benefit of Seller and may be waived by Seller in its discretion.
Section 4.4. Closing Deliveries. By the Closing, the following shall occur:
Page 14 of 23
(a)
Seller shall deliver to Buyer:
(i)
a duly executed and acknowledged special warranty deed (the
“Deed”) conveying fee title to the Property to Buyer subject only to (a) current (non-
delinquent) ad valorem real property taxes, assessments of record with the Maricopa
County Recorder, improvement liens of record with the Maricopa County Recorder, and
similar matters to be prorated between the parties at Closing pursuant to Section 4.5(a);
and (b) the Permitted Exceptions. The form of the Deed is attached hereto and
incorporated herein as Exhibit “2”;
(ii)
an Affidavit of Property Value (“AOV”), to the extent required by
applicable law, duly executed and appropriately acknowledged by Seller or its agent;
(iii)
such documents and instruments as required in Buyer’s reasonable
discretion to assign, transfer, convey and set over unto Buyer all of the irrigation
grandfathered groundwater rights appurtenant to the Property, if any, and all water wells
located on the Property, if any;
(b)
Buyer shall pay to Seller the Purchase Price as provided in Section 1.2,
subject to the adjustments described in Section 4.5.
(c)
Seller shall execute and deliver to Buyer and the Escrow Agent an affidavit
that evidences that Seller is exempt from the withholding requirements of Section 1445
of the Internal Revenue Code.
(d)
Seller and Buyer shall each deliver to the other such instruments,
documents, or certificates (including certificates of public officials to the extent the same
are reasonably available) as the other party or its counsel may reasonably request in
order to attest to the organization and existence of such party, its authority to execute and
deliver this Agreement, and to effect the transactions herein contemplated, and attesting
to the taking of all necessary action to authorize the herein contemplated transactions.
(e)
Seller shall execute and deliver to Buyer such other documents,
instruments, or agreements which Seller may be required to deliver to Buyer pursuant to
the provisions of this Agreement or which may be necessary to consummate the
transactions contemplated by this Agreement.
(f)
Buyer shall execute and deliver to Seller: (i) an Affidavit of Property Value,
to the extent required by applicable law, duly executed and appropriately acknowledged
by Buyer or its agent; and (ii) such other documents, instruments, or agreements which
Buyer may be required to deliver to Seller pursuant to the provisions of this Agreement
or which may be necessary to consummate the transactions contemplated by this
Agreement.
(g)
The due diligence documents of Seller shall be released to Buyer at Closing
at no cost to Buyer.
Page 15 of 23
Section 4.5. Closing Adjustments. The funds due at Closing pursuant to
Section 1.2 shall be subject to adjustment as of the Closing Date in accordance with the
following provisions:
(a)
Taxes and Assessments. All real property taxes and assessments
(collectively, “Real Estate Taxes”) for the Property shall be prorated as of 12:01 a.m.
Phoenix time on the Closing Date.
(b)
Closing Costs. Seller shall pay the premium for a Standard Owner’s
Policy, the fees and expenses of Seller’s attorneys, and one-half of the escrow fees.
Buyer shall pay the costs of recording the Deed, the entire cost of any extended coverage
or special endorsements requested from the Title Company by Buyer, and one-half of the
escrow fees. Seller shall pay the cost of recording any instruments required to discharge
any liens or encumbrances against the Property which Seller is obligated hereunder to
discharge.
Section 4.6 Settlement Statement. At the Closing, Seller and Buyer shall
execute a closing settlement statement to reflect the credits, prorations and adjustments
contemplated by or specifically provided for in this Agreement.
Section 4.7 Eminent Domain. If, prior to the Closing, any material portion
thereof shall be threatened or taken by any governmental authority under a power of
eminent domain, or if a suit relating thereto shall be filed or threatened, then Buyer shall
elect, by written notice to Seller not later than five (5) days following Buyer’s receipt of
notice from Seller of such taking or pending action, either to (i) proceed to Closing,
whereupon Seller shall assign Seller’s rights to any condemnation award to Buyer, and
Buyer shall not then be able to seek any other damages or compensation from Seller; or
(ii) terminate this Agreement, in which event the Earnest Money Deposit shall be returned
to Buyer and this Agreement shall terminate as provided in Section 2.4. If Buyer fails to
so provide such notice, Buyer shall conclusively be deemed to have elected to proceed
to Closing rather than terminate. If other than all or a material portion of the Property shall
be taken, the parties shall proceed to Closing, whereupon Seller shall assign Seller’s
rights to any condemnation award to Buyer, and Buyer shall not be able to seek any other
damages or compensation from Seller.
Section 4.8. Possession of Property. Possession of the Property shall be
delivered to Buyer upon the Close of Escrow.
Section 4.9 Risk of Loss. Except as provided in Sections 2.2(a) and 4.7 of this
Agreement, the risk of loss or damage to the Property and all liability to third persons until
the Close of Escrow shall be borne by Seller.
ARTICLE V
BREACH; REMEDIES
Section 5.1 Seller’s Failure to Close. If Seller fails to Close, and provided that
Buyer is not then in breach or default of its obligations hereunder, then Buyer, at Buyer’s
Page 16 of 23
option, shall be entitled to (i) seek specific performance of Seller’s obligations hereunder;
(ii) terminate this Agreement by written notice to Seller and Escrow Agent, in which event
the Earnest Money Deposit, accrued interest and all other sums previously deposited by
Buyer with Escrow Agent or which were paid to Seller on account of this Agreement shall
be returned to Buyer, and Buyer may pursue any claim for its actual damages and
reasonable attorneys’ fees and costs as provided by law; or (iii) waive such breach and
proceed to Closing. Notwithstanding any such termination, Buyer shall have the
continuing right to enforce any surviving obligations provided for in this Agreement.
Section 5.2 Buyer’s Failure to Close. If Buyer fails to complete the acquisition
of the Property as herein provided, and provided that Seller is not then in breach or default
hereunder, Seller as its remedy for Buyer’s failure to close this transaction shall be entitled
to terminate this Agreement by written notice to Buyer, in which event Seller shall be
entitled to receive the Earnest Money Deposit as liquidated damages for Buyer’s failure
to close this transaction, and this Agreement shall terminate as provided in Section 2.4.
Payment to Seller of the Earnest Money Deposit shall terminate all of Seller’s rights and
remedies at law or in equity against Buyer with respect to this transaction for Buyer’s
failure to close this transaction. The parties hereby agree that the amount of the Earnest
Money Deposit shall be and constitutes liquidated damages for Buyer’s failure to close
this transaction, Buyer and Seller acknowledging and agreeing that it is difficult or
impossible to determine the actual damages Seller would suffer from Buyer’s failure to
close this transaction and that the agreed upon liquidated damages are not punitive or
penalties and are just, fair and reasonable. Notwithstanding any such termination for
Buyer’s failure to close this transaction, Seller shall have the continuing right to enforce
any surviving obligations provided for in this Agreement.
Section 5.3 Notice and Cure. Notwithstanding anything in this Agreement to the
contrary, no party shall ever be in default hereunder unless such breaching party first
receives written notice of default from the non-defaulting party hereunder, stating with
specificity the purported default or events of default, and thereafter the defaulting party
fails to cure such breach to the reasonable satisfaction of the non-defaulting party within
five (5) business days of the defaulting party’s receipt of such written notice of default.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Notices. All notices, demands, requests, consents, approvals, or
other instruments required or permitted to be given pursuant hereto shall be in writing and
shall be deemed to have been given and received upon (i) receipt, if hand delivered; (ii)
transmission, if delivered by email or facsimile transmission so long as the party sending
such transmission receives written evidence of the successful transmission to the
recipient(s); (iii) the next business day, if delivered by express delivery service or
overnight courier service; or (iv) the third business day following the day of deposit of
such notice in registered or certified mail, return receipt requested. Notices shall be
provided to the addresses (or facsimile numbers, as applicable) specified below:
Page 17 of 23
If to Seller:
Win Oil Company, Inc.
Rogert T. Bollard CPA, Statutory Agent
Stephens & Assoc.
612 N Beaver St
Flagstaff AZ 86001
With a copy to:
Win Oil Company, Inc.
989 South Main Street Suite 616
Cottonwood AZ 85326
Courtesy copy:
Email address:
If to Buyer:
City of Buckeye
Attention: City Manager
530 East Monroe Avenue
Buckeye, Arizona 85326
Courtesy copy:
Email address:
With a copy to:
City Attorney’s Office
Attention: City Attorney
530 East Monroe Avenue
Buckeye, Arizona 85326
Courtesy copy:
Email address: smccoy@buckeyeaz.gov
Seller or buyer may at any time change its address for such notices by delivering to the
other, as aforesaid, a notice of such change.
Section 6.2. Further Assurances. Each of the parties hereto undertakes and
agrees to execute and deliver such documents, writings and further assurances as may
reasonably be required to carry out the intent and purpose of this Agreement, which
obligation shall survive the Closing.
Section 6.3. Amendment; Waiver; Entire Agreement. No change or
modification of this Agreement shall be valid unless the same is in writing and signed by
the parties hereto. No waiver of any of the provisions of this Agreement shall be binding
unless in writing and signed by the party against who it is sought to be enforced. This
Agreement contains the entire agreement between the parties relating to the purchase
and sale of the Property. All prior negotiations between the parties are merged in this
Agreement, and there are no promises, agreements, conditions, undertakings,
warranties, or representations, oral or written, express or implied, between the parties
other than as herein set forth.
Page 18 of 23
Section 6.4. Dates and Times. Time is of the essence of this Agreement. Unless
expressly stated otherwise, all time periods shall be measured in business days. For
purposes of this Agreement, “business days” shall mean Monday through Friday,
excluding federal and state holidays. If any date set forth in this Agreement for the
delivery of any document or notice or the happening of any event (such as, for example,
the expiration of the Feasibility Period or the Closing Date) should, under the terms
hereof, fall on a weekend or holiday, then such date shall be automatically extended to
the next succeeding business day. Deliveries or events occurring subsequent to 5:00 PM
on a business day in the location of occurrence shall be deemed to have occurred on the
next business day (e.g., notices due on a certain date must be received by 5:00 PM
Phoenix time on such date).
Section 6.5 Governing Law; Jurisdiction. This Agreement shall be construed
and enforced in accordance with the laws of the State of Arizona. Any action or
proceeding arising out of or relating to this Agreement or any transaction contemplated
hereby shall be brought in the courts of the State of Arizona and/or the United States
District Court for the District of Arizona, County of Maricopa.
Section 6.6. Headings. The paragraph headings, which appear in some of the
Sections of this Agreement, are for purposes of convenience and reference and are not
in any sense to be construed as modifying the Sections in which they appear.
Section 6.7. Successors and Assigns. The provisions of this Agreement are
binding upon and shall inure to the benefit of the parties and their respective heirs,
personal representatives, successors and assigns. Notwithstanding the foregoing, this
Agreement is executed under threat of condemnation by Buyer, and Buyer may not
assign any or all of its right, title and interest in and to this Agreement without the prior
written consent of Seller.
Section 6.8. Survivability. All covenants and agreements of the parties,
including, but not limited to, all indemnity obligations, which, by the context of this
Agreement, are to be performed after or are to survive the termination of this Agreement
or the Closing, shall, as the case may be, survive the Closing or the termination of this
Agreement, as set forth in Section 3.1 above.
Section 6.9. Counterparts/Facsimile Signatures. This Agreement may be
executed in several counterparts, each of which shall be deemed an original, but all of
which shall constitute only one agreement. Pending exchange and receipt of original
signatures, facsimile signatures shall be fully effective as original signatures.
Section 6.10.
Attorneys’ Fees. In the event of any action at law or in equity
between Seller and Buyer to enforce any of the provisions and/or rights under this
Agreement or on account of a breach of any term or provision hereof, the unsuccessful
party to such litigation agrees to pay to the prevailing party all costs and expenses,
including reasonable attorneys’ fees, incurred therein by such prevailing party, including
Page 19 of 23
any such costs and expenses incurred in any appeal, and if such prevailing party shall
recover judgment in any action or proceeding, such costs, expenses and fees shall be
included in and as a part of such judgment. As used herein, the term “prevailing party”
shall be the party to such litigation which receives, whether by settlement or judgment,
substantially the relief prayed for in such litigation. This provision shall survive Closing or
any termination of this Agreement.
Section 6.11.
Construction. The terms and provisions of this Agreement
represent the results of negotiations between Seller and Buyer, each of which are
financially sophisticated parties and each of which has been represented or been given
the opportunity to be represented by counsel of its own choosing, and neither of which
has acted under any duress or compulsion, whether legal, economic or otherwise.
Consequently, the terms and provisions of this Agreement shall be interpreted and
construed in accordance with their usual and customary meanings, and Seller and Buyer
each hereby waive the application of any rule of law which would otherwise be applicable
in connection with the interpretation and construction of this Agreement that ambiguous
or conflicting terms or provisions contained in this Agreement shall be interpreted or
construed against the party whose attorney prepared the executed Agreement or any
earlier draft of the same. The parties agree that, regardless of which party provided the
initial form of this Agreement, drafted or modified one or more provisions hereof, or
compiled, printed or copied this Agreement, this Agreement shall be construed solely as
an offer to purchase from Buyer, executed by Buyer and provided to Seller for acceptance
on the terms set forth herein, which acceptance and the existence of a binding agreement
between Buyer and Seller shall be evidenced by the execution hereof by Seller.
Section 6.12.
Exculpation. Each party agrees that there shall be absolutely
no personal liability on the part of the other party or any employee or agent of such other
party with respect to any of the terms, covenants and conditions of this Agreement.
Section 6.13.
Liabilities Not Assumed. Except as specifically set forth
herein to the contrary, Buyer shall not, and shall not by virtue of the transactions set forth,
be deemed to have assumed or agreed to pay, perform, or discharge any liabilities of the
Seller, whether or not the same relate to the Property or were incurred in connection with
the ownership, use, management, or operation thereof by Seller, or by any person acting
through, or on behalf of, Seller.
Section 6.14. Severability. If any term, covenant, condition or provision of this
Agreement, or the application thereof to any person or circumstance, shall to any extent
be held by a Court of competent jurisdiction, or rendered by the adoption of a statute
invalid, void or unenforceable, the remainder of the terms, covenants, conditions or
provisions of this Agreement, or the application thereof to any person or circumstance,
shall remain in full force and effect and shall in no way be affected, impaired or invalidated
thereby.
Section 6.15.
Waiver of Covenants, Conditions or Remedies. The
waiver by one party of the performance of any covenant, condition or promise, or of the
time for performing any act, under this Agreement shall not invalidate this Agreement nor
Page 20 of 23
shall it be considered a waiver by such party of any other covenant, condition or promise,
or of the time for performing any other act required under this Agreement. The exercise
of any remedy provided in this Agreement shall not be a waiver of any consistent remedy
provided by law, and the provisions of this Agreement for any remedy shall not exclude
any other consistent remedies unless they are expressly excluded.
Section 6.16.
Legal
Representation.
Each
party
has
received
independent legal advice from its attorneys with respect to the advisability of executing
this Agreement and the meaning of the provisions hereof. The provisions of this
Agreement shall be construed as to the fair meaning and not for or against any party
based upon any attribution of such party as the sole source of the language in question,
it being expressly understood and agreed that the parties hereto participated equally or
had equal opportunity to participate in the drafting thereof.
Section 6.17.
Relationship of Parties. The parties agree that their
relationship is that of Seller and Buyer, and that nothing contained herein shall constitute
either party as being the agent or legal representative of the other for any purpose
whatsoever, nor shall this Agreement be deemed to create any form of business
organization between the parties hereto, nor is either party granted the right or authority
to assume or create any obligation or responsibility on behalf of the other party, nor shall
either party be in any way liable for any debt of the other.
Section 6.18.
Commission.
To the extent that Seller has entered into
a sales commission agreement, Seller shall be solely responsible for any compensation
due under or required by such agreement, and Seller will indemnify, defend and hold
harmless against any claim for commission arising from or related to the transaction set
forth in this Agreement. This indemnity shall survive termination of this Agreement. To
the extent that Buyer has entered into a sales commission agreement, Buyer shall be
solely responsible for any compensation due under or required by such agreement, and
Buyer will indemnify, defend and hold harmless against any claim for commission arising
from or related to the transaction set forth in this Agreement. This indemnity shall survive
termination of this Agreement.
Section 6.19.
Cancellation. Buyer gives notice to Seller that A.R.S. § 38-
511 provides that Buyer may, within three (3) years after its execution, cancel any contract
without penalty or further obligation made by Buyer if any person significantly involved in
initiating, negotiating, securing, drafting or creating the contract on behalf of Buyer is at
any time while the contract or any extension of the contract is in effect, an employee or
agent of any other party to the contract in any capacity or a consultant to any other party
to the contract with respect to the subject matter of the contract. In addition to the
foregoing right to cancel a contract, Buyer may recoup any fee or commission paid or due
to any person significantly involved in initiating, negotiating, securing, drafting or creating
the contract on behalf of Buyer from any other party to the contract arising as a result of
the contract.
Section 6.20.
Agreement Binding Only Upon Execution. The delivery of
this Agreement in unexecuted form by Buyer or Seller does not constitute either an
Page 21 of 23
agreement or an offer. This Agreement shall become the binding agreement of the parties
only upon the execution by both parties of this Agreement or a counterpart thereof.
Section 6.21.
Authority to Execute.
Seller
and
Buyer
both
acknowledge that the persons whose signatures appear below have appropriate authority
to execute this Contract on behalf of Seller and Buyer.
EXECUTION PAGE(S) FOLLOW
Page 22 of 23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
WIN OIL COMPANY, INC,
an Arizona corporation
By:
C. James Pugliano, President, CEO
Date:
BUYER:
THE CITY OF BUCKEYE, ARIZONA,
an Arizona municipal corporation
By:
Eric W. Orsborn, Mayor
Date:
ATTEST:
Lucinda J. Aja, City Clerk
APPROVED AS TO FORM:
K. Scott McCoy, City Attorney
Page 23 of 23
ACCEPTANCE OF ESCROW AGENT:
Escrow Agent hereby: (i) acknowledges receipt of the Earnest Money Deposit,
(ii) agrees to be bound by the provisions hereof applicable to Escrow Agent, (iii) agrees
to perform its obligations as set forth herein, and (iv) declares that the Opening Date
occurred on the
day of
, 2025.
KENSINGTON VANGUARD NATIONAL
LAND SERVICES:
By: ____________________________
Its: ____________________________
EXHIBIT “1”
TO
PURCHASE AND SALE AGREEMENT
(WITH ESCROW INSTRUCTIONS)
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With a reputed street address of
620 W Highway 85
Buckeye, Arizona 85326
D
EXHIBIT “2”
TO
PURCHASE AND SALE AGREEMENT
(WITH ESCROW INSTRUCTIONS)
FORM OF SPECIAL WARRANTY DEED
WHEN RECORDED, RETURN TO:
City of Buckeye
ATTN: City Clerk, Lucinda J. Aja
530 East Monroe Avenue
Buckeye, Arizona 85326
Exempt from Affidavit of Property Value
pursuant to A.R.S. §11-1134(A)(3)
_____________________________________________________________________
SPECIAL WARRANTY DEED
For good and valuable consideration, Win Oil Company, an Arizona corporation
(collectively, “Grantor”), do hereby convey to THE CITY OF BUCKEYE, ARIZONA, an
Arizona municipal corporation (“Grantee”), that certain real property situated in Maricopa
County, Arizona, and legally described on Exhibit A attached hereto and made a part
hereof, together with all rights, privileges, easements and appurtenant benefits relating
thereto and all improvements located thereon (the “Property”):
SUBJECT TO: the matters set forth on Exhibit B attached hereto and made a part
hereof.
AND THE GRANTOR hereby binds itself and its successors to warrant and defend
the title against the acts of the Grantor and no other, subject to the matters set forth above.
[SIGNATURES APPEAR ON NEXT PAGE]
IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed as of
the _________ day of _________________, 202
.
GRANTOR:
BY:
ITS:
STATE OF _____________
)
) ss.
County of ______________
)
The foregoing instrument was acknowledged before me this ___ day of
_________________, 202
, by _______________________.
WITNESS my hand and official seal.
_________________________________
Notary Public
(Affix Notary Seal Here)
Jllcnmot'
SpedlllWunmy1Dleed
EXHIBIT A
to
Special Warranty Deed
Legal Description of Property
[to-come item]
EXHIBIT B
to
Special Warranty Deed
Permitted Exceptions
[to-come item]