WPC COUNTY PSA FINAL CLEAN 7-17-20.DOCX
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City Block Purchase Agreement
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PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
C-78-20-010-3-01
This Purchase Agreement and Escrow Instructions (“Agreement”) is entered into by and between
MARICOPA COUNTY, a political subdivision of the State of Arizona (“Buyer”), and DOWNTOWN
PHX STORAGE LLC, a Delaware limited liability company (“DPS”), and DOWNTOWN PHX
STORAGE II, LLC, a Delaware limited liability company (“DPS II”, and together with DPS, “Seller”),
as of the last date executed below. Buyer and Seller may collectively be referred to herein as the Parties,
or individually as a Party.
WITNESSETH:
THAT, DPS is the owner of that certain real property known as Maricopa County Assessor Parcel
Number (“APN”) 112-19-022B, described and depicted on Exhibit A-1 attached hereto and made a part
hereof (the “South Block”); and
THAT, pursuant to that certain Purchase and Sale Agreement dated October 30, 2019 (the
“Underlying Agreement”) between Wisotsky Properties, LLC, an Arizona limited liability company
(“Underlying Seller”), as seller, and DPS II, as purchaser (the “Underlying Transaction”), Seller is under
contract to become the owner of that certain real property known as APN 112-19-976B, 112-19-119B, and
112-10-022C, described and depicted on Exhibit A-2 attached hereto and made a part hereof (the “North
Block”); and
THAT, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the North Block,
the South Block, and any improvements thereon (subject to Seller’s demolition obligations hereunder)
collectively the “Property”) via a duly executed Special Warranty Deed, the form of which is attached
hereto and made a part hereof as Exhibit B.
NOW THEREFORE, for the good and valuable consideration set forth herein, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree to the following:
TERMS AND CONDITIONS:
1. PURCHASE PRICE. The purchase price for the Property is Fourteen Million Dollars
($14,000,000.00) (“Purchase Price”) and shall be paid by Buyer to Seller on or before the Close of Escrow,
defined below. Within ten (10) business days following the Escrow Opening Date, defined below, Buyer
shall place an initial refundable earnest money deposit (the “Initial Earnest Money Deposit”) in the
amount of Two Million Dollars ($2,000,000.00) into a non-interest-bearing account with the Escrow Agent,
defined below. By no later than the expiration of the Inspection Period, as defined below, Buyer shall
deposit an additional earnest money deposit in the amount of One Million Dollars ($1,000,000.00) (the
“Additional Earnest Money Deposit”), and together with the Initial Earnest Money Deposit, the “Earnest
Money Deposit”) into the non-interest-bearing escrow account. The Earnest Money Deposit shall be: i)
credited to Buyer toward the Purchase Price at the Close of Escrow, ii) refunded to Buyer if Buyer cancels
this Agreement prior to the expiration of the Inspection Period, defined below; (iii) refunded to Buyer if
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Seller does not acquire title to, and possession of the North Block before Close of Escrow; and (iv) provided
that Buyer elects to proceed with the purchase described herein after the expiration of the Inspection Period,
non-refundable to Buyer following expiration of the Inspection Period for any reason other than termination
of this Agreement as a result of Seller's uncured default hereunder, or any other provision hereunder that
expressly provides for the return of the Earnest Money Deposit to Buyer, which includes, but is not limited
to, the provisions set forth in Section 6 below.
1.01.
Escrow Agent. The escrow agent (“Escrow Agent”) for this Agreement is:
Company:
Security Title Agency, Inc.
Address:
4722 N. 24th Street, Ste 200, Phoenix, AZ 85016
Agent:
Jason Bryant
Phone:
(602) 230-6297
Email:
jbryant@securitytitle.com
1.02.
Escrow Instructions. This Agreement also constitutes escrow instructions to Escrow
Agent.
1.03.
Escrow Opening Date. The Escrow Opening Date shall be the date that a fully
executed and/or conformed original or copy or counterpart original(s) or copy/ies of this
Agreement are delivered to the Escrow Agent.
1.04.
Close of Escrow.
a) The close of escrow (“Close of Escrow”) shall occur no earlier than the date that is
one hundred twenty (120) calendar days after the Escrow Opening Date and no later
than January 29, 2021.
b) Subject to Seller having acquired title to, and possession of, the North Block from
the Underlying Seller, then at the Close of Escrow, both title to, and possession of,
the North Block shall be transferred from Seller to Buyer. Seller’s acquisition of title
to, and possession of, the North Block from the Underlying Seller is a condition
precedent to the Close of Escrow.
c) At the Close of Escrow, title to the South Block shall be transferred from Seller to
Buyer; provided, however, that Buyer shall not accept possession of the South Block
until such time as the Seller has demolished and back-filled any and all improvements
on the South Block (the “Work”) in accordance with the Work Standards and
Requirements for Delivery of South Block attached hereto and made a part hereof as
Exhibit C (the “Work Standards”). Such Work shall be performed in two (2) phases
as follows:
1) Seller shall, at Seller’s sole cost and expense, demolish and back-fill the building
located on the Southwest corner of the South Block, aka 219 S. 5th Avenue (the
“5th Ave Building”), in accordance with the Work Standards (the “5th Ave
Building Demolition Work”) by no later than the date that is thirty (30) days
prior to the Close of Escrow. The completion of the 5th Ave Building Demolition
Work shall be conclusively evidenced by Seller’s delivery to Buyer of a
Certificate of Completion (or its equivalent) (a “C of C”) for the 5th Ave Building
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Demolition Work issued by the City of Phoenix. Seller’s completion of the 5th
Ave Building Demolition Work and delivery to Buyer of a Certificate of
Completion (or its equivalent) is a condition precedent to the Close of Escrow.
2) The remainder of the improvements on the South Block shall be demolished and
back-filled, and the entire site graded, dust-proofed, and fenced, in accordance
with the Work Standards (the “Post-Closing Work”) by no later than the date
that is six (6) months after the Close of Escrow (the “Post-Closing Work
Outside Date”), which Post-Closing Work Outside Date shall be, upon notice to
Buyer, extended day-for-day for each day that Seller is unable to, or delayed in,
completing the Post-Closing Work as a result of inability to procure materials,
governmental moratorium or other governmental action or inaction (including,
without limitation, failure, refusal or delay in issuing permits, approvals and/or
authorizations), local, regional or national epidemic or pandemic, natural disaster
or other reason of a like nature not the fault of Seller (collectively, “Force
Majeure Delays”). Buyer hereby grants to Seller and Seller’s contractors,
subcontractors and agents, a license to enter upon the South Block and that
certain real property known as APN 112-19-022C after the Close of Escrow as
necessary to perform the Post-Closing Work. Notwithstanding the foregoing, in
the event the Force Majeure Delays (other than COVID-19 Delays (as hereinafter
defined)) exceed thirty (30) days, then Buyer may elect to complete the Post-
Closing Work. If the Buyer elects to complete the Post-Closing Work, Escrow
Agent shall, upon written direction from Buyer, (A) deliver to Buyer from the
Escrow Holdback an amount equal to 1.5 times the amount required to complete
the Post-Closing Work as reasonably determined by Buyer’s Facilities
Management Department and (B) immediately thereafter deliver to Seller the
remaining amount of the Escrow Holdback, following which Seller shall be
released from all further liability with respect to the performance of the Post-
Closing Work. As used herein, “COVID-19 Delays” shall mean that a Party is
unable to perform its obligations hereunder or, in the case of Buyer only, conduct
the Buyer Investigations, directly as result of the COVID-19 pandemic.
3) At Close of Escrow, Escrow Agent shall retain Two Million Dollars
($2,000,000.00) of the Purchase Price in escrow (the “Escrow Holdback”) to
ensure full performance and timely completion of the Post-Closing Work in
accordance with the Work Standards. The completion of the Post-Closing Work
shall be conclusively evidenced by (a) Seller’s delivery to Buyer and Escrow
Agent of a C of C for the Post-Closing Work issued by the City of Phoenix, and
(b) Buyer’s delivery to Seller and Escrow Agent of written confirmation from
Buyer’s Facilities Management Department that the Post-Closing Work was
completed materially in accordance with the Work Standards (the “FMD
Confirmation”), which FMD Confirmation Buyer shall not unreasonably fail to
cause to be delivered.
Within five (5) business days following Seller’s determination that a Milestone
(as hereafter defined) has been achieved, Seller shall deliver written notice
thereof to Buyer (a “Milestone Notice”) and Buyer shall cause Buyer’s Facilities
Management Department to inspect the Post-Closing Work within five (5)
business days after Seller’s delivery of a Milestone Notice to confirm that the
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Milestone has been completed materially in accordance with the Work Standards
(a “FMD Inspection”). A “Milestone” shall mean a Post-Closing Work item
identified as a “Milestone” in the Work Standards.
In the event that Buyer disputes that a Milestone has been completed materially
in accordance with the Work Standards, Buyer shall, within five (5) business days
after the applicable FMD Inspection, deliver to Seller and Escrow Agent a
statement executed by an authorized representative of Buyer setting forth, in
reasonable detail, the reasons for which Buyer believes the Milestone was not
completed materially in accordance with the Work Standards (an “Objection
Notice”). In the event Buyer does not timely deliver an Objection Notice, Buyer
shall be deemed to have agreed the applicable Milestone was completed
materially in accordance with the Work Standards. In the event of delivery of an
Objection Notice, Seller and Buyer shall use their commercially reasonable
efforts to resolve such dispute within five (5) business days after delivery of the
Objection Notice. If Seller and Buyer are unable to resolve such dispute within
the five (5) business day period, the Parties shall submit the dispute to binding
arbitration in accordance with the Rules of Arbitration attached hereto as Exhibit
F.
By no later than five (5) business days after Buyer and Escrow Agent receipt of
a C of C for the Post-Closing Work issued by the City of Phoenix and the FMD
Confirmation, Escrow Agent shall release the Escrow Holdback to Seller.
In the event that Seller does not complete the Post-Closing Work by the Post-
Closing Work Outside Date (as the Post-Closing Work Outside Date may be
extended due to Force Majeure Delays), Escrow Agent shall, upon written
direction from Buyer, (A) deliver to Buyer from the Escrow Holdback an amount
equal to 1.5 times the amount required to complete the Post-Closing Work as
reasonably determined by Buyer’s Facilities Management Department and (B)
immediately thereafter deliver to Seller the remaining amount of the Escrow
Holdback, following which Seller shall be released from all further liability with
respect to the performance of the Post-Closing Work.
Escrow Agent may (i) act in reliance upon any writing or instrument or signature
which it, in good faith, believes to be genuine; (ii) assume the validity and
accuracy of any statement or assertion contained in such a writing or instrument;
and (iii) assume that any person purporting to give any writing, notice, advice or
instructions in connection with the provisions of this Agreement has been duly
authorized to do so. Except as provided below, Escrow Agent shall not be liable
in any manner for the sufficiency or correctness as to form, execution or validity
of any instrument or copy of any instrument deposited in escrow, nor as to the
identity, authority, or right of any person executing the same; and its duties shall
be limited to those provided in this Section. Unless Escrow Agent discharges
any of its duties under this Section in a grossly negligent manner or is guilty of
fraud or willful misconduct with regard to its duties under this Section, Buyer
and Seller shall indemnify Escrow Agent and hold it harmless from any and all
Claims, as defined below, which it may incur or with which it may be threatened
by reason of its acting as Escrow Agent under this Section. Notwithstanding the
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foregoing, Escrow Agent’s fee in connection with its duties under this Section
shall be paid by Seller.
d) Close of Escrow Date.
1) Seller’s (i) close of escrow on the Underlying Transaction; (ii) recordation of
conveyance deed for the Underlying Transaction; and (iii) execution of an
assignment of that certain April 1, 2019 unrecorded lease for use and occupancy
of the commercial building and a portion of the land within the North Block,
between Underlying Seller, as landlord, and The Pressroom, LLC, as tenant (if
and as amended, the “Lease”), from Underlying Seller to Seller are all conditions
precedent to the Close of Escrow contemplated in this Agreement. The
obligation of Seller to close the transaction contemplated by this Agreement is
subject to the condition that Seller shall have acquired the North Block from the
Underlying Seller. The Lease shall be assigned by Seller to Buyer, and assumed
by Buyer from Seller, at the Close of Escrow. The Underlying Transaction is
subject to an escrow (the “Underlying Escrow”) established at Chicago Title
Agency, Inc. (Escrow No. C1910536), with Susan Bush at 2425 E. Camelback
Rd., Ste 200, Phoenix, AZ 85016 (the “Underlying Escrow Agent”). The
Parties hereby acknowledge and agree that the Close of Escrow and the closing
of the Underlying Escrow shall occur on the same day. In connection therewith,
(A) Seller shall use its best efforts to ensure that the Escrow Agent and the
Underlying Escrow Agent reasonably cooperate with each other and the Parties
hereto and (B) Buyer shall deliver the Purchase Price to Escrow Agent no later
than the business day prior to the Close of Escrow.
2) Provided all conditions precedent to closing are met, including without limitation
those set forth directly above in Section 1.04(d)(1), Close of Escrow shall occur
on the date (the “Closing Date”) that is thirty (30) days from the date on which
the 5th Ave Building Demolition Work is completed in accordance with Section
1.04(c)(1); provided, however, in no event shall Close of Escrow occur prior to
December 1, 2020. In the event any of Buyer’s conditions precedent to closing
set forth in this Agreement are not fully and completely satisfied or waived,
Buyer shall have the option to: (A) waive any of such Buyer’s conditions
precedent and proceed with the Close of Escrow; or (B) terminate Buyer’s
obligation to purchase the Property by written notice to Seller and Escrow Agent
at or prior to the Close of Escrow, whereupon Seller’s obligation to sell and
Buyer’s obligation to purchase the Property shall be deemed to be automatically
null and void and of no force or effect, in which event neither Seller nor Buyer
shall have any further rights or obligations hereunder or relating hereto, except
pursuant to any obligations expressly surviving termination of this Agreement,
and Buyer shall be entitled to a refund of the Earnest Money Deposit.
1.05.
Title Insurance; Closing Costs and Prorations.
a) It shall be a condition precedent to Buyer’s obligation to purchase the Property that
Escrow Agent shall issue, or cause to be issued, a standard coverage owner’s policy of
title insurance in the amount of the Purchase Price naming Buyer as the insured. Seller
agrees that the cost of the standard coverage owner’s title policy shall be deducted
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from Seller’s proceeds, and/or Seller’s funds, at Close of Escrow prior to any
distributions to Seller.
b) All real estate taxes, charges and assessments affecting the Property (“Taxes”), all
charges for water, electricity, sewer rental, gas, telephone and all other utilities
(“Operating Expenses”), to the extent not paid directly by tenants, shall be prorated
on a per diem basis effective as of 11:59 p.m. on the day prior to the Closing Date.
Unless paid by Underlying Seller at the closing of the Underlying Transaction, Seller
shall pay all delinquent and then due and payable Taxes and any unpaid monetary
obligations of Seller with respect to any of the Contracts (as hereinafter defined).
Seller shall be entitled to receive the return of all utility deposits, bonds and other
security for or under the Contracts, defined below, or relating to the Property, which
shall not be prorated. Seller shall not be required to obtain readings of any meters
measuring electricity provided to tenants on a direct meter basis. If any Taxes have
not been finally assessed as of the date of the Close of Escrow for the current fiscal
year of the taxing authority, then the same shall be adjusted at the Close of Escrow
based upon the most recently issued bills therefor. If Seller is presently prosecuting
tax abatement proceedings, after the Close of Escrow, Seller shall continue to be
authorized to prosecute such proceedings, and shall be entitled to any abatement
proceeds obtained in connection therewith and attributable to any time period before
the Close of Escrow.
c) Except for delinquent rent as addressed below, all rent under the Lease shall be
prorated effective as of 11:59 p.m., MST, on the day prior to the Closing Date.
Delinquent rent due prior to the Close of Escrow shall not be prorated but shall
remain the property of Seller. Buyer shall receive a credit at the Close of Escrow
for all refundable security deposits paid under the Lease (unless properly applied by
Seller prior to the Close of Escrow in accordance with the applicable Lease), and
prepaid rent paid under the Lease. From and after the Close of Escrow, all such
security deposits so credited and turned over to Buyer shall thereafter be deemed
transferred to Buyer, and Buyer shall be solely responsible for the future disposition
of such security deposits (for which Buyer receives a credit at the Close of Escrow)
in accordance with the Lease and applicable law, and Buyer shall defend, indemnify
and hold harmless Seller from any Claims by tenants for security deposits transferred
or credited to Buyer at the Close of Escrow, which indemnification obligation shall
survive the Close of Escrow.
d) All of the above-referenced costs, if any, that are the responsibility of Buyer shall be
paid into escrow no later than the business day before the Close of Escrow in addition
to the Purchase Price. Seller shall pay all of the closing costs and escrow charges
except as previously stated herein. Any monetary encumbrances existing against the
Property at the Close of Escrow, and all costs that are the responsibility of the Seller
or Underlying Seller, shall, if not paid from the Underlying Seller’s proceeds, shall
be paid from the Seller’s proceeds, and/or Seller’s funds, prior to, or at Close of
Escrow as required by Escrow Agent and prior to any distributions to Seller. Each
Party agrees to pay its own expenses incurred in connection with this Agreement and
the transactions contemplated hereby, including without limitation attorney’s fees.
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1.06.
Real Estate Commission. Seller shall pay the entirety of the brokerage commission due
to JLL (Keith Lammersen) associated with this transaction. Seller hereby indemnifies
Buyer against, and agrees to hold Buyer harmless from, any claim, demand or suit for
any brokerage and/or real estate commission, finder’s fee, or similar charge in respect to
the execution of this Agreement or the purchase and sale transaction based on any act by
or agreement or contract with Seller, and for all losses, obligations, costs, expenses and
fees (including attorneys’ fees) incurred by Buyer due for or arising from any such claim,
demand or suit, including, but not limited to, any amounts payable to Seller’s listing
broker. Buyer represents to Seller that it has not dealt with any broker or agent in
connection with this transaction other than JLL (Keith Lammersen). Buyer hereby
indemnifies and holds harmless Seller from any claim, demand or suit for any brokerage
and/or real estate commission, finder’s fee, or similar charge arising out of a breach of
the foregoing representation. The provisions of this Section 1.06 shall survive the Close
of Escrow or the termination of this Agreement.
1.07.
Closing Documents and Deliverables. On or before the Close of Escrow, the Parties
shall deliver to Escrow Agent:
a) A Special Warranty Deed, duly executed and acknowledged on behalf of the Seller,
conveying the Property to the Buyer, the form of which is attached hereto and made
a part hereof as Exhibit B.
b) A Special Warranty Deed, duly executed and acknowledged on behalf of the Buyer,
accepting the conveyed Property, the form of which is attached hereto and made a
part hereof as Exhibit B.
c) An Assignment of Lease, duly executed and acknowledged on behalf of the Buyer
and Seller, the form of which is attached hereto and made a part hereof as Exhibit E.
d) Such other documents as shall be reasonably required by Escrow Agent as a
condition to insuring title to the Property.
e) It shall be a condition to Buyer’s obligation to purchase the Property that Buyer shall
have received an estoppel certificate, in substantial compliance with the tenant
estoppel form required under the Underlying Agreement (a "Tenant Estoppel"),
from the tenant under the Lease, dated no earlier than thirty (30) days prior to the
Closing Date, which shall not disclose any material defaults by Seller under the Lease
and shall not disclose any material economic or other discrepancies from the Lease.
Seller shall submit the draft Tenant Estoppel to Buyer for review by Buyer prior to
delivery to the tenant. Buyer shall review and/or provide comments on such form
of the Tenant Estoppel, acknowledging that any such comments must be consistent
with the terms of the form required under the Underlying Agreement and the terms
of the Lease, within five (5) business days after Buyer’s receipt thereof or otherwise
Buyer shall be deemed to have approved the form of the Tenant Estoppel not properly
and timely commented upon. After receipt of the executed Tenant Estoppel, Buyer
will have until the earlier of three (3) business days prior to the Closing Date or five
(5) business days after receipt thereof to communicate with Seller and the tenant as
to any unacceptable terms or conditions of the Tenant Estoppel. If Buyer fails to
disapprove the Tenant Estoppel within the time period specified in the prior sentence,
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then Buyer shall be deemed to have approved such Tenant Estoppel. Buyer may only
disapprove the Tenant Estoppel if it disclosed a true material default by Seller, or a
true material discrepancy between what is disclosed in the Tenant Estoppel and what
is disclosed in the Lease. If Buyer has timely disapproved the Tenant Estoppel as
permitted in this section, then Buyer shall be deemed to have elected to terminate
this Agreement, in which event the Earnest Money Deposit shall be returned to
Buyer, Buyer and Seller shall take the actions described in the last sentence of
Section 4.01(c) (i.e., delivery of Buyer Investigation documents), and neither Party
shall have any further rights or obligations hereunder except for those matters which
specifically survive the expiration or termination of this Agreement.
f)
In the event that the Underlying Seller proposes to execute a Bill of Sale to Seller for
(a) fixtures, equipment, furniture, furnishings, appliances, supplies, or any other
personal property owned by the Underlying Seller that is installed in, located at, or
situated on the Property, and/or (b) intangible property owned by the underlying
Seller and used in connection with the Property (“Personal Property”), then Seller
shall draft the form of a Bill of Sale, with an attached list of the Personal Property to
be sold from Seller to Buyer, consistent with the form of the Bill of Sale required
under the Underlying Agreement. Seller shall present the draft form of the Bill of
Sale and attached list of Personal Property to Buyer for review and approval no later
than the date that is sixty (60) days prior to the Close of Escrow. If applicable, Buyer
and Seller shall provide a duly executed version of the approved form of the Bill of
Sale to Escrow Agent.
g) Promptly following the Close of Escrow, Seller shall deliver to Buyer outside of
escrow all of the following: (i) keys or access codes to the improvements on the
North Block and the double gate on the South Block fence; and (ii) any other books
and records pertaining exclusively to the Property and required for the future
ownership and operation of the Property.
2. TITLE COMMITMENT.
2.01.
Preliminary Title Report. Buyer has obtained and reviewed a Commitment for Title
Insurance for the Property (the “Title Report”). Within ten (10) business days following
the Escrow Opening Date, Buyer shall provide a copy of the Title Report to Seller for
Seller’s review. Further, in the event that any updates, supplements or amendments to
the Title Report are subsequently prepared, copies of such documents shall be timely
delivered by Escrow Agent to both Buyer and Seller.
2.02.
Title Objections; No Obligation to Act. Except with respect to any title exception
intentionally and voluntarily created by Seller after the issuance of the Title Report,
nothing herein shall be deemed to impose on Seller any obligation to bring any action or
proceeding, or to expend any unreasonable sum or effort in order to fulfill any condition,
nor shall Buyer otherwise have any right or action against Seller in respect thereof.
Notwithstanding anything to the contrary in this Agreement, and without the need to
make any formal written title objections, Buyer objects to: (i) all deeds of trust and/or
mortgages; (ii) all assignments of leases, licenses, rents and UCC-1 financing statements
that are not contemplated or disclosed in this Agreement; (iii) all judgment liens,
mechanic’s liens, notices of lis pendens, tax liens, attachments, and any other matters
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evidencing monetary encumbrances (other than liens for non-delinquent property taxes);
(iv) any options or rights of purchase that are not disclosed in this Agreement; and (v)
notices of lease, possession, or occupancy rights to all or part of the Property not
disclosed in this Agreement (collectively, the “Non-approved Exceptions”).
At Buyer's option, but not as a condition precedent to Buyer’s obligation to close escrow,
Buyer may procure an extended coverage title insurance policy, if available, in which
event Buyer shall pay the amount of increased premium (including for any endorsements
requested by Buyer) and the cost of any survey necessary to obtain extended coverage
title insurance issued through the Escrow Agent in the form in use on the date of issue,
insuring Buyer in the amount of the Purchase Price of the Property.
2.03.
Title Clearing. Within sixty (60) business days following the Escrow Opening Date,
Escrow Agent shall contact Seller and all other necessary entities to obtain lien release,
consent to sale, and/or consent to assignment requirements from all existing mortgages,
liens, judgments, contracts, lessees, lessors, etc. as well as begin any and all document
preparation for title clearing. Seller, at Seller’s and/or Underlying Seller’s sole cost and
expense, will discharge and/or ensure release of any Non-approved Exceptions on or
before the Close of Escrow.
3. SELLER'S REPRESENTATIONS. As used in this Section 3, references to “Seller’s actual
knowledge” shall mean the actual knowledge of David Brown and David King, who are the
persons with most knowledge about the Property on behalf of Seller, without investigation or
inquiry of any other person or entity, and such individuals shall not have any personal liability
whatsoever in connection with this Agreement or the transactions contemplated herein. Seller
represents and warrants to Buyer that, as of the date Seller executes this Agreement, as follows:
3.01.
DPS owns the South Block in fee simple and has full power and authority to execute
this Agreement for the South Block and to consummate the transaction contemplated
herein.
3.02.
DPS II, as purchaser under the Underlying Transaction, is under contract to become the
owner of the North Block and has full power and authority to execute this Agreement
and to consummate the transaction contemplated herein.
3.03.
To Seller’s actual knowledge, Seller represents that there is no pending or threatened
condemnation proceeding affecting any part of the Property, and Seller has not received
any notice of any such proceeding and has no knowledge that any such proceeding is
contemplated.
3.04.
Other than the tenant under the Lease and/or as set forth in the Title Report, to Seller’s
actual knowledge, there are no parties in possession of the Property, and no other party
has been granted any license, lease, or other right relating to the use of possession of the
Property.
3.05.
To Seller’s actual knowledge, except as may be disclosed in the Due Diligence
Documents, as defined below, no hazardous substances or wastes or petroleum products
have been located on the Property, and Seller has received no notice of any violations
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of any local, state or federal statutes or laws governing the generation, treatment,
storage, disposal or clean-up of hazardous substances.
3.06.
Seller has not granted any rights of first refusal or options to purchase the Property to
any other third party.
3.07.
Upon full execution of this Agreement, Seller will not at any time prior to Close of
Escrow, grant any interest in the Property to any party, or voluntarily encumber the
Property.
3.08.
All representations and warranties of Seller contained in this Agreement are true on and
as of the Escrow Opening Date and will be true on and as of the Close of Escrow.
Notwithstanding the foregoing provisions of, (i) if Buyer learns of any actual or alleged
material inaccuracy in Seller’s representations or warranties after the date hereof and
prior to the Closing Date, Buyer shall promptly notify Seller thereof, and (ii) if Seller
learns of any actual or alleged material inaccuracy in such representations or warranties,
Seller shall promptly notify Buyer thereof. Seller shall have the right, but not the
obligation, on or before the earlier of the scheduled Closing Date or the date ten (10)
days after receiving such written notice from Buyer or of learning of such actual or
alleged material inaccuracy, without any obligation, unless stated otherwise in this
Agreement, on the part of Seller to incur any cost or expense, to cure such inaccuracy.
Failing such cure by Seller, Buyer’s exclusive remedy in such event shall be to elect, on
or before the earlier of the scheduled Closing Date or the date that is five (5) business
days after the expiration of the ten (10) day period referenced in the preceding sentence,
to either (y) waive such breach and proceed to consummate the transaction contemplated
by this Agreement without reduction in the Purchase Price or (z) terminate this
Agreement, whereupon Escrow Agent shall return the Earnest Money Deposit to Buyer,
Seller shall be liable for all customary escrow cancellation charges, and neither Party
will have any further rights or obligations regarding this Agreement or the Property
except for any obligations which are to expressly survive the termination of this
Agreement. Seller’s representations and warranties as contained herein shall survive
the Closing Date for a period of six (6) months, but not thereafter, it being the intention
of the parties that any suit or action for breach or for indemnity against liabilities
resulting from any such breach must be brought no later than six (6) months after the
Closing Date or they shall be forever barred. Seller shall have no liability whatsoever
to Buyer with respect to a breach of any of the representations and warranties contained
in this Section if Buyer obtains knowledge of a fact or circumstance the existence of
which would constitute a breach of Seller’s representations and warranties hereunder
prior to the Closing Date and Buyer proceeds to the Close of Escrow without exercising
the right of termination set forth above, in which event each representation or warranty
shall be deemed automatically amended to conform with the knowledge of Buyer as of
the Closing Date, and Seller shall have no liability whatsoever for such previously
inaccurate representation or warranty.
City Block Purchase Agreement
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4. ACCESS TO PROPERTY.
4.01.
Buyer Investigations; Right of Entry.
a) From the Escrow Opening Date until 5:00 p.m. (Phoenix, Arizona time) on the date
that is ninety (90) calendar days from the Escrow Opening Date (the “Inspection
Period”), Buyer, and its agents or assigns, shall, subject to Seller’s and Underlying
Seller’s rights under the Underlying Agreement, have the right to enter the Property,
at Buyer’s cost and expense, for the purposes of completing such tests, studies,
investigations, surveys, appraisals, and physical inspections of the Property that
Buyer deems necessary or appropriate, including but not limited to a Phase I
environmental site assessment, and if necessary, a Phase II environmental site
assessment (collectively, “Buyer Investigations”), as Buyer deems appropriate to
assure Buyer that the Property is suitable for Buyer’s intended purposes and that no
hazardous wastes or substances are located on or under the Property. In the event
that Buyer is unable to complete the Buyers Investigations by the expiration of the
Inspection Period as a result of COVID-19 Delays, Buyer may, upon written notice
delivered to Seller and Escrow Agent by no later than the expiration of the Inspection
Period, extend the Inspection Period by up to thirty (30) days. Seller, for security
purposes, shall have the right to have its agents present during any and all of the
Buyer Investigations. All of the Buyer Investigations shall be arranged at mutually
convenient times. Seller has obtained the Underlying Seller’s written consent to
Buyer’s testing or sampling of surface or subsurface soils, surface water,
groundwater, or any other materials on the North Block in connection with the Buyer
Investigations, and it is acknowledged by Seller that Buyer will perform asbestos
and lead based paint testing. If Seller or the Underlying Seller unreasonably delays,
or denies Buyer’s entry during the Inspection Period for any of the purposes set forth
above, Buyer shall have the right to (i) extend the Inspection Period one day for each
day of any such unreasonable delay; or (ii) in Buyer’s sole discretion, deliver written
notice terminating this Agreement to Seller and Escrow Agent on or before the end
of the Inspection Period. If Buyer elects to timely terminate this Agreement, the
Parties shall follow the procedures set forth below in Section 4.01(c).
b) Prior to the Escrow Opening Date, Seller has delivered to Buyer electronic copies
of any (i) surveys and site plans that pertain to the Property; (ii) tax notices and
correspondence; (iii) zoning reports and/or letters; (iv) existing soil reports; (v)
correspondence and/or reports from regulatory agencies; and (vi) similar records
relating to the Property, or the development thereof, that are in the possession of, or
are readily available to, Seller or its agents (collectively, the “Due Diligence
Documents”), if any. The Due Diligence Documents are provided simply as an
accommodation to Buyer, and Seller makes no representations or warranties of any
kind regarding the Due Diligence Documents, including, without limitation, as to
their accuracy or completeness. Buyer understands that some of the Due Diligence
Documents may have been provided by others to Seller and may not have been
prepared by or verified by Seller.
c) If the Buyer Investigations are not acceptable to Buyer, in Buyer’s sole discretion,
Buyer may deliver written notice terminating this Agreement to Seller and Escrow
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Agent on or before the end of the Inspection Period. If Buyer timely delivers a
written termination notice, this Agreement and the related escrow will be deemed
immediately cancelled, Buyer shall be refunded the Earnest Money Deposit, Buyer
and Seller shall each pay one-half of the customary escrow cancellation charges, and
neither Party will have any further rights or obligations regarding this Agreement or
the Property except for the obligations set forth in this paragraph below and any
obligations which are to expressly survive the termination of this Agreement. Seller
has no obligation to cure or remove any matter found as a result of the Buyer
Investigations pursuant to this Agreement. If Buyer timely exercises its right to
terminate this Agreement, Buyer shall, within ten (10) business days after such
termination, deliver to Seller, without charge, and without any representation or
warranty as to their use or accuracy, the surveys, inspections, boring, percolation,
geologic, environmental and soil tests, and other non-confidential studies of the
Property performed by or on behalf of Buyer, if any, during the Inspection Period.
4.02.
Appraisal. Buyer, at its own expense, obtained an appraisal of the Property.
4.03.
Insurance – Buyers Investigations. Seller acknowledges and agrees that Buyer is self-
insured. Buyer shall deliver proof of self-insurance to Seller prior to conducting any of
the Buyer Investigations.
4.04.
Insurance – Seller’s Post-Closing Work. In connection with the Post-Closing Work,
Seller, its contractors and subcontractors, at Seller’s or its contractors’ and
subcontractors’ own expense, shall purchase and maintain the herein stipulated
minimum insurance from a company or companies possessing a current A.M. Best,
Inc. rating of A6 or higher which are authorized to do business in the State of Arizona.
All insurance required herein shall be maintained in full force and effect until all Post-
Closing Work is completed and Escrow Agent has received the C of C and the FMD
Confirmation. Seller’s insurance shall be primary insurance for the Post-Closing Work,
and any self-insurance maintained by Buyer shall not contribute to it. Any failure to
comply with the claim reporting provisions of the insurance policies or any breach of
an insurance policy shall not affect the Buyer’s right to coverage afforded under the
insurance policies. The insurance policies may provide coverage that contains
deductibles or self-insurance retentions. Such deductible and/or self-insurance
retentions shall not be applicable with respect to the coverage provided to Buyer under
such policies. Seller, its contractors and subcontractors, shall be solely responsible for
the deductible and/or self-insurance retention. Seller shall provide, at least ten (10)
days prior to the Commencement of the Post-Closing Work, Certificates of Insurance
evidencing the herein required insurance policies and/or endorsements are in full force
and effect. Seller, and its contractors’ and subcontractors’ insurance policies required
for the Post-Closing Work, except Workers’ Compensation, shall name Buyer, its
agents, representatives, officers, director, official and employees as Additional
Insureds and shall contain a waiver of transfer of rights of recovery (subrogation)
against Buyer, its agents, representatives, officer, directors, officials and employees for
any claims arising out of the Post-Closing Work. In the event any insurance policies
required under this Agreement are written on a “claims made” basis, coverage shall
extend for one year following the Buyer’s Acceptance of the South Block. Seller, or its
contractors and subcontractors shall procure and maintain the following coverages:
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a) Commercial General Liability. Commercial General Liability insurance and, if
necessary, Commercial Umbrella insurance with a limit of not less than $2,000,000
for each occurrence, $4,000,000 Products/Completed Aggregate and $4,000,000
General Aggregate Limit. The policy shall include coverage for liability, bodily
injury, broad form property damage, fire legal liability, personal injury, products
and completed operations and blanket contractual coverage, and shall not contain
any provisions which would serve to limit third party action over claims. There
shall be no endorsement or modifications of the CGL limiting the scope of coverage
for liability arising from explosion, collapse or underground property damage.
b) Automobile Liability. Commercial/Business Automobile Liability insurance and,
if necessary, Commercial Umbrella insurance, with a combined single limit for
bodily injury and property damage of not less than $2,000,000 each occurrence
with respect to any of the owned, hired and non-owned vehicles assigned to, or
used in performance of, the Post-Closing Work.
c) Worker’s Compensation. Worker’s Compensation insurance to cover obligations
imposed by federal and state statutes having jurisdiction of employees engaged in
the performance of the Post-Closing Work; and Employer’s Liability insurance of
not less than $1,000,000 for each accident, $1,000,000 disease for each employee
and $1,000,000 disease policy limit. Seller, its contractors, and its subcontractors
waive all rights against Buyer and its agents, officers, directors and employees for
recovery of damages (subrogation) to the extent these damages are covered by the
Workers’ Compensation and Employer’s Liability or commercial umbrella liability
insurance obtained by Seller, its contractors and its subcontractors pursuant to this
Agreement.
d) Environmental/Pollution. Liability insurance in an amount of $2,000,000 per
occurrence and $4,000,000 aggregate.
4.05.
Environmental Stipulations. If Seller has knowledge or possession of any
environmental reports on the Property, Seller shall, within ten (10) business days of the
Escrow Opening Date, provide Buyer with a list and the date of any environmental
reports conducted on the Property that are known to the Seller, and provide a copy of
said reports that are in Seller’s possession to the Buyer. Buyer may, at its own expense,
have the environmental report(s) updated and certified or addressed to Buyer and/or
obtain new environmental report(s), all at Buyer’s expense. Environmental Reports.
Seller has knowledge or possession of environmental report(s) on the Property, or
portions thereof. Seller shall, within ten (10) business days of the Escrow Opening Date,
provide Buyer with a list and the date of any environmental report(s) conducted on the
Property, or portions thereof, that are known to the Seller, and provide a copy of said
report(s) that are in Seller’s possession to the Buyer. Buyer may, at its own expense,
have any environmental report(s) delivered to it by Seller updated and certified or
addressed to Buyer and/or obtain new environmental report(s), all at Buyer’s expense.
4.06.
Damages. Buyer shall be solely responsible for any damage Buyer causes to the
Property prior to the Close of Escrow. If any mechanic’s or materialman’s liens or claim
of lien or any other lien, claim, judgment or other encumbrance at any time shall be filed
against the Property or any part thereof or against Seller’s interest therein as a result of
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any labor performed or materials or services furnished or claimed to have been
performed or furnished to or on behalf of Buyer, Buyer shall, promptly after receipt of
notice of the filing thereof, cause the same to be released and discharged of record, by
payment, bond or otherwise, all of which shall be at Buyer’s sole cost and expense. The
foregoing shall survive the Close of Escrow or the termination of this Agreement.
4.07.
Claims Arising Out of Entry. To the extent not prohibited by law, Buyer, and its agents
or assigns, shall indemnify, defend, and hold harmless Seller, as indemnitee, from and
against any and all claims, losses, liability, costs, or expenses (including reasonable
attorney’s fees) (hereinafter collectively referred to as “Claims”) arising out of Buyer’s, or
its officers, officials, agents, employees, or contractors, entry onto the Property and/or the
Buyer investigations, surveys, and inspections contemplated above, but only to the extent
that such Claims are caused by the act, omission, negligence, misconduct, or other fault of
the Buyer and/or its officers, officials, agents, employees, or contractors. Notwithstanding
the foregoing, in no event shall Buyer have any liability under this Section arising out
of, resulting from or relating to the mere discovery by Buyer of a preexisting condition
at the Property. The foregoing shall survive the Close of Escrow or the termination of
this Agreement.
5. BUYER'S REPRESENTATIONS. Buyer represents that it has full power and authority to
enter into this Agreement and to consummate all of the transactions hereby contemplated.
6. RISK OF LOSS. For the North Block, except as otherwise provided in this Agreement, all risk
of loss related to ownership and possession of the Property, including liability to third persons, shall be the
responsibility of Seller until the title and possession of the North Block passes to Buyer at Close of Escrow.
For the South Block, except as otherwise provided in this Agreement, all risk of loss related to ownership
and possession of the South Block, including liability to third persons, shall be the responsibility of the
Seller until possession of the South Block passes to Buyer upon execution of Buyer’s Acceptance of South
Block as previously described herein. If any loss, damage, or taking occurs prior to Close of Escrow for
the North Block, or Buyer’s possession of the South Block (other than loss or damage caused by the Buyer)
that renders the Property unusable or ill-suited (as determined by Buyer in its sole, but reasonable,
discretion) for Buyer’s intended use, Buyer, at Buyer’s sole option and by written notice to Seller and
Escrow Agent, will be entitled to cancel this Agreement and the related escrow. Upon Buyer’s cancellation
of this Agreement under the preceding sentence, Buyer’s Earnest Money Deposit shall be returned to Buyer,
Buyer and Seller shall each pay one-half of the customary escrow cancellation charges, and neither Seller
nor Buyer will have any further obligation or responsibility to the other to perform under this Agreement,
except as otherwise provided in this Agreement.
7. CONTRACTS. By Close of Escrow, Seller or Underlying Seller shall terminate all service and
maintenance contracts affecting the Property other than service and maintenance contracts affecting the
Property entered into by tenant under the Lease (the “Contracts”).
8. ASSIGNABILITY. Neither Seller nor Buyer may assign any of its rights or obligations under
this Agreement without the other Party’s advance written consent, which consent shall not be unreasonably
withheld, conditioned or delayed. This Agreement shall be binding upon Seller and Buyer and their
respective successors and assigns.
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9. BREACH OF AGREEMENT, DAMAGES.
9.01.
In the event of: (i) the breach or non-performance of this Agreement by Seller; or (ii) a
default in the performance of any of its obligations hereunder by Seller, and if Seller
fails to cure the breach or default within thirty (30) business days after receipt of written
notice from Buyer specifying the breach or default, then the Buyer, in its sole discretion,
and, unless a remedy is already provided in this Agreement, as its sole and exclusive
remedy, may cancel this Agreement and the escrow by giving written notice to Seller
and Escrow Agent. If that occurs, Seller shall be liable for all customary escrow
cancellation charges, Escrow Agent shall refund the Earnest Money Deposit to Buyer,
and Seller shall reimburse Buyer for the actual out-of-pocket costs and expenses
(including without limitation attorneys’ and consultants’ fees) incurred by Buyer in
connection with this Agreement and/or the transaction contemplated hereby (in an
amount not to exceed $50,000.00). Thereafter, each of the Parties shall be relieved of
any further obligation to the other arising by virtue of this Agreement (except for
obligations that are expressly intended to survive the termination of this Agreement).
Buyer hereby acknowledges and agrees that a default by Underlying Seller under the
Underlying Agreement shall not be deemed a default by Seller under this Agreement.
Should Underlying Seller fail or threaten to fail to perform its obligations under the
Underlying Agreement, Seller shall give Buyer written notice of same. If Underlying
Seller (i) is legally excused from performing its obligation to sell the North Block to
Seller (whether by a voluntary agreement between Underlying Seller and Seller or a
result of a determination from legal action), or (ii) fails to perform its obligations to sell
the Property to Seller on or before the Closing Date, Buyer, in its sole discretion and as
its sole and exclusive right, may cancel this Agreement and the escrow by giving written
notice to Seller and Escrow Agent, in which event Seller shall be liable for all customary
escrow cancellation charges, Escrow Agent shall refund the Earnest Money Deposit to
Buyer, and Seller shall reimburse Buyer for the actual out-of-pocket costs and expenses
(including without limitation attorneys’ and consultants’ fees) incurred by Buyer in
connection with this Agreement and/or the transaction contemplated hereby (in an
amount not to exceed $50,000.00), and each of the Parties shall be relieved of any further
obligation to the other arising by virtue of this Agreement (except for obligations that
are expressly intended to survive the termination of this Agreement). Buyer hereby
waives and releases any right to, and hereby covenants that Buyer shall not, sue Seller
for (a) specific performance, or (b) damages. The provisions of this Section 9.01 shall
survive the termination of this Agreement.
9.02.
In the event of: (i) the breach or non-performance of this Agreement by Buyer; or (ii)
Buyer fails to close this transaction, other than due to the default of the Seller or Seller’s
failure to meet conditions precedent to closing, and if Buyer fails to cure the breach or
failure within thirty (30) business days after receipt of written notice from Seller
specifying the default (provided, however, that no such notice shall be required in
connection with Buyer’s failure to timely close escrow), the Buyer shall be liable for all
customary escrow cancellation charges and the Earnest Money Deposit shall be forfeited
to the Seller. Such payment of the escrow cancellation charges and Earnest Money
Deposit shall be the Seller’s sole and exclusive remedy in the event of default by Buyer.
The Parties agree that the amount of actual damages that Seller would suffer as a result
of Buyer’s default would be extremely difficult to determine and have agreed, after
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specific negotiation, that the amount of the escrow cancellation charges and the Earnest
Money Deposit is a reasonable estimate of Seller’s damages and is intended to constitute
a fixed amount of liquidated damages in lieu of other remedies available to Seller and
is not intended to constitute a penalty. Seller hereby waives and releases any right to,
and hereby covenants that Seller shall not, sue Buyer for (a) specific performance, or
(b) damages. The provisions of this Section 9.02 shall survive the termination of this
Agreement.
10. DISPUTES. Except for disputes for which the remedy is already provided in this Agreement,
disputes arising from this Agreement shall be subject to mandatory arbitration. A notice of a dispute must
be provided in writing to the other Party and provide a summary of the issue that is the subject of the dispute.
10.01. The Parties shall confer within thirty (30) calendar days of receipt of a notice of dispute
to resolve the dispute and/or decide, within ten (10) business days after conferring, on a
mutually acceptable arbiter. If a mutually acceptable arbiter cannot be agreed upon
within thirty (30) calendar days after conferring, the Parties agree that each Party shall
name one (1) arbiter and those two (2) arbiters shall select a third arbiter. Any decisions
made shall be made by a majority of the panel of three arbiters.
10.02. If the Parties mutually agree to proceed to arbitration in lieu of cancelling this
Agreement, arbitration shall be binding. The cost of any arbitration shall be shared
equally by the Parties.
11. “AS-IS, WHERE IS”. “AS-IS, WHERE IS”. EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT, BUYER ACKNOWLEDGES THAT BUYER IS PURCHASING THE PROPERTY
IN “AS IS” AND “WHERE IS” CONDITION, SUBJECT TO THE AGREED UPON POST-CLOSING
WORK, WITH ALL FAULTS, DEFECTS AND OTHER ADVERSE MATTERS, AND THAT SELLER
IS SELLING THE PROPERTY IN “AS IS” AND “WHERE IS” CONDITION WITH ALL FAULTS,
DEFECTS
AND
OTHER
ADVERSE
MATTERS.
EXCEPT
FOR
THE
EXPRESS
REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY SELLER IN THIS
AGREEMENT OR IN THE DOCUMENTS TO BE EXECUTED BY SELLER AT THE CLOSING,
BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS SET FORTH IN THIS
SECTION ARE AN INTEGRAL PART OF THIS AGREEMENT AND THAT SELLER WOULD NOT
HAVE AGREED TO COMPLETE THE SALE ON THE TERMS PROVIDED IN THIS AGREEMENT
WITHOUT THE DISCLAIMERS SET FORTH IN THIS SECTION. The provisions of this Section shall
survive the Close of Escrow or the earlier termination of this Agreement.
12. NOTICES. No notices, waiver, or other communication under this Agreement shall be effective
unless in writing and personally served, or sent by certified mail, return receipt requested, with postage
prepaid or by commercial express delivery service providing receipted delivery, or sent by electronic mail,
read receipt requested. All such notices shall be addressed to the Parties at the addresses noted below. If
personally served, or sent via commercial delivery service, any such notice shall be deemed given at the
time of such service or, if by mail, two (2) calendar days following the depositing of the same in a post
office box regularly maintained by the United States Postal Service.
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BUYER:
SELLER:
Maricopa County
Downtown PHX Storage, LLC
Attn: Director, Real Estate Department
Downtown PHX Storage II, LLC
2801 W. Durango Street
c/o James Wentworth
Phoenix, AZ 85009
802 N. 3rd Avenue
Michelle.colby@maricopa.gov
Phoenix, AZ 85003
jrwentworth@wentprop.com
With a copy to:
Mast Law Firm, P.C.
c/o Trevor Chait
2415 E. Camelback Road, Suite 455
Phoenix, AZ 85016
tchait@mastlawfirm.com
13. INDEMNITY. Seller shall defend, indemnify, and hold Buyer harmless for, from and against
any and all Claims arising out of or resulting from the Post-Closing Work by Seller or any of its contractors,
subcontractors or agents.
14. GENERAL PROVISIONS.
14.01. Date of Agreement. The date of this Agreement for all purposes where such date is
referenced herein shall be the date last signed on the signature pages that follow.
14.02. Section Headings. The section headings in this Agreement are inserted only as a matter
of convenience in reference and are not to be given any effect whatsoever in construing
any provision of this Agreement.
14.03. Authority to Execute. Seller and Buyer both acknowledge that the person(s) whose
signatures appear below have appropriate authority to execute this Agreement on behalf
of Seller and Buyer.
14.04. Counterparts. This Agreement may be signed in any number of counterparts with the
same effect as if the signatures thereto and hereto are upon the same instrument.
14.05. Survival and Expiration. All representations, indemnities and warranties made in the
Agreement shall survive the expiration of this Agreement.
14.06. Non-Foreign Affidavits. Seller agrees that, in order to comply with Internal Revenue
Code Section 1445, Seller will sign a Non-Foreign Affidavit in a form provided by
Escrow Agent and approved by Buyer. Said Affidavit to be delivered to Escrow Agent
on or before the Close of Escrow.
14.07. Severability. If any term, covenant, condition or provision of this Agreement, or the
application thereof to any person or circumstance shall, at any time or to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of such
terms or provision to persons or circumstances other than those as to which it is held
City Block Purchase Agreement
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invalid or unenforceable, shall not be affected thereby, and each term, covenant,
condition and provision of this Agreement shall be valid and be enforceable to the fullest
extent permitted by law.
14.08. Conflict of Interest. This Agreement is subject to A.R.S. § 38-511, the provisions of
which are incorporated herein by reference, and may be canceled pursuant thereto.
14.09. Waiver. Failure of any Party to exercise any term, condition, right , or option arising
out of a breach of this Agreement shall not be deemed a waiver of any other term,
condition or covenant herein, or of a subsequent breach of any term, right, option,
covenant or condition herein with respect to any subsequent or different breach, or the
continuance of any existing breach.
14.10. Ambiguity. This Agreement was drafted by Buyer with the assistance of attorneys.
Neither Party nor their attorneys have rendered legal or other advice to the other Party
regarding sale of the Property or the specific terms of this Agreement. The Parties are
aware of their right to obtain independent professional and/or legal assistance with this
Agreement and, upon signing of the Agreement, the Parties represent that they have
taken all steps deemed necessary (including but not limited to, seeking the advice of
professionals and/or attorneys) to assist them with this transaction. Consequently, any
ambiguity in this Agreement shall not be construed against either Party.
14.11. Venue, Governing Law. This Agreement shall be deemed to be made under, construed
in accordance with, as well as governed, interpreted and regulated by, the laws of the
State of Arizona, and arbitration proceedings, if applicable. Suit to enforce any
provision of this Agreement, or to obtain any remedy with respect hereto, may be
brought in the Superior Court of the State of Arizona, Maricopa County
14.12. Statutory Authority. The Property is being purchased by Buyer in compliance with
A.R.S. 11-251.
14.13. Time is of the Essence. Other than where this Agreement provides for a period of cure,
time is of the essence in the performance of all obligations under this Agreement. If the
time for performance of any obligation or for taking any action under the Agreement
expires on a Saturday, Sunday, or legal holiday, the time for performance or for taking
action will be extended to the next succeeding day which is not a Saturday, Sunday, or
legal holiday and during which Escrow Agent is open for business.
14.14. Amendment. This Agreement may only be amended by a written instrument executed
by Buyer and Seller expressly stating their intention to amend this Agreement.
14.15. Administration of Agreement. The Assistant County Manager for Maricopa County
and the Real Estate Director for Maricopa County shall administer this Agreement on
behalf of Buyer and are hereby authorized to sign in acceptance of the South Block and
release the Escrow Holdback in accordance with this Agreement.
14.16. No Recording. Each Party hereto covenants and agrees that it has no right to, and in
no event will such Party, record or cause to be recorded this Agreement or any
memorandum hereof or other document relating to this Agreement (other than the
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documents to be recorded in connection with the Close of Escrow under this Agreement)
and, if either Party breaches the provisions of this Section, the other Party shall have the
option of terminating this Agreement. The provisions of this Section shall survive the
Close of Escrow or any termination of this Agreement indefinitely.
14.17. Attorneys’ Fees. If any legal action or other proceeding is brought or if an attorney is
retained for the enforcement of this Agreement or any portion thereof, or because of any
alleged dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the prevailing Party shall be entitled to recover from the
other Party reimbursement for the reasonable fees of attorneys and other costs (including
court costs) incurred by the prevailing Party, in addition to any other relief to which it
may be entitled.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE(S) FOLLOW
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date written below.
SELLER:
BUYER:
MARICOPA COUNTY,
a political subdivision of the State of Arizona
By:_______________________________
Clint Hickman
Chairman of the Board of Supervisors
Date: _____________________________
ATTEST:
____________________________________
Clerk of the Board Date
DOWNTOWN PHX STORAGE, LLC, a
Delaware limited liability company
By: _________________________________
James R. Wentworth Date
Manager
By: _________________________________
Stephen L. Clark Date
Manager
SELLER:
DOWNTOWN PHX STORAGE II, LLC, a
Delaware limited liability company
By: _________________________________
James R. Wentworth Date
Manager
By: _________________________________
Stephen L. Clark Date
Manager
APPROVED AS TO FORM:
___________________________________
Deputy County Attorney Date
ACCEPTANCE BY ESCROW AGENT
The Purchase Agreement & Escrow Instructions are accepted on this _______ day of
__________________, 2020.
ESCROW AGENT:
Security Title Agency, Inc.
By: _____________________________________
Jason Bryant, Escrow Agent
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ACKNOWLEDGEMENT OF BUYER
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by ______________________, the Chairman of the Board of Supervisors, on behalf of Maricopa
County, Arizona.
Notary Public (signature)
My Commission Expires: ______________
ACKNOWLEDGEMENT OF SELLER
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by James R. Wentworth, Manager, on behalf of Downtown PHX Storage, LLC, a Delaware
limited liability company, and Downtown PHX Storage II, LLC, a Delaware limited liability company.
Notary Public (signature)
My Commission Expires: ______________
ACKNOWLEDGEMENT OF SELLER
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by Stephen L. Clark, Manager, on behalf of Downtown PHX Storage, LLC, a Delaware limited
liability company, and Downtown PHX Storage II, LLC, a Delaware limited liability company.
Notary Public (signature)
My Commission Expires: ______________
City Block Purchase Agreement
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EXHIBIT A-1
Attached to Purchase Agreement & Escrow Instructions
SOUTH BLOCK OF THE PROPERTY
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EXHIBIT A-2
Attached to Purchase Agreement & Escrow Instructions
NORTH BLOCK OF THE PROPERTY
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EXHIBIT A-2 Continued
Attached to Purchase Agreement & Escrow Instructions
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EXHIBIT B
Attached to Purchase Agreement & Escrow Instructions
Form of
SPECIAL WARRANTY DEED
WHEN RECORDED RETURN TO:
Maricopa County
Attention: Director, Real Estate Dept.
2801 W. Durango St.
Phoenix, AZ 85009
EXEMPT PURSUANT TO A.R.S. §11-1134(A)(3)
C-78-20-010-3-01
SPECIAL WARRANTY DEED
In exchange for Ten Dollars and other good and valuable consideration, receipt of which is
acknowledged, DOWNTOWN PHX STORAGE LLC, a Delaware limited liability company, and
DOWNTOWN PHX STORAGE II, LLC, a Delaware limited liability company (collectively
GRANTOR), hereby grants and conveys to MARICOPA COUNTY, a political subdivision of the State
of Arizona (GRANTEE) the following real property situated in Maricopa County, Arizona:.
SEE EXHIBIT “A”, ATTACHED HERETO
AND MADE A PART HEREOF
SUBJECT TO current real property taxes, assessments, reservations in patents, zoning and other
governmental restrictions, leases, and all covenants, conditions, restrictions, easements, rights-of-way, and
other matters of record or matters that could be disclosed by a visual inspection or accurate survey of the
real property.
GRANTOR hereby binds itself and its successors to warrant and defend the title to the real property
against all acts of the GRANTOR herein and no other subject to the matters set forth above. No other
covenants or warranties, express or implied, are given by this Special Warranty Deed.
IN WITNESS WHEREOF, GRANTOR has set its hand and seal the day and year first above written.
GRANTOR:
GRANTOR:
DOWNTOWN PHX STORAGE, LLC,
DOWNTOWN PHX STORAGE II, LLC,
a Delaware limited liability company
a Delaware limited liability company
By_________________________________
By_________________________________
James R. Wentworth, Manager Date
James R. Wentworth, Manager Date
City Block Purchase Agreement
Page 28 of 39
GRANTOR:
GRANTOR:
DOWNTOWN PHX STORAGE, LLC,
DOWNTOWN PHX STORAGE II, LLC,
a Delaware limited liability company
a Delaware limited liability company
By_________________________________
By_________________________________
Stephen L. Clark, Manager Date
Stephen L. Clark, Manager Date
ACKNOWLEDGEMENT OF GRANTOR
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by James R. Wentworth, Manager, on behalf of Downtown PHX Storage, LLC, a Delaware
limited liability company, and Downtown PHX Storage II, LLC, a Delaware limited liability company.
Notary Public (signature)
My Commission Expires: ______________
ACKNOWLEDGEMENT OF GRANTOR
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by Stephen L. Clark, Manager, on behalf of Downtown PHX Storage, LLC, a Delaware limited
liability company, Downtown PHX Storage II, LLC, a Delaware limited liability company.
Notary Public (signature)
My Commission Expires: ______________
City Block Purchase Agreement
Page 29 of 39
ACCEPTED BY:
GRANTEE:
MARICOPA COUNTY, a political subdivision of
the State of Arizona
By_________________________________
Chairman of the Board of Supervisors
ATTEST:
____________________________________
Clerk of the Board Date
APPROVED AS TO FORM:
By___________________________________
Deputy County Attorney Date
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by ______________________, the Chairman of the Board of Supervisors, on behalf of Maricopa
County, Arizona.
Notary Public (signature)
My Commission Expires: ______________
City Block Purchase Agreement
Page 30 of 39
EXHIBIT A
Attached to Special Warranty Deed
City Block Purchase Agreement
Page 31 of 39
City Block Purchase Agreement
Page 32 of 39
EXHIBIT A Continued
Attached to Special Warranty Deed
City Block Purchase Agreement
Page 33 of 39
EXHIBIT C
Attached to Purchase Agreement & Escrow Instructions
WORK STANDARDS AND REQUIREMENTS FOR DELIVERY OF SOUTH BLOCK
Seller shall obtain a demolition permit(s) from the City of Phoenix as well as demolish and backfill any
and all improvements on APN 112-19-022B. All Work on the site shall be completed in accordance with
the following (“Standards”):
1) Seller shall conduct the work in compliance with all relevant codes and regulations enforces by
authorities having jurisdiction.
2) Demolition shall include the removal of all buildings, basement(s), foundations, footings, and all
structures above or below the surface. This includes but is not limited to pavement, asphalt,
concrete, duct banks and unforeseen structures.
3) Seller shall protect improvements within the rights-of-way, including but not limited to sidewalks,
light poles, signage and roadways.
4) Seller shall correct/repair any damage to right-of-way improvements.
5) All backfill material to be provided by Seller.
6) All backfill soil to be suitable for future building construction. MILESTONE
7) Seller provided backfill material shall be free of environmental hazards and shall not contain any
rubble or material larger than 3-inches. MILESTONE
8) Seller to produce and turnover as-built records of demolition to Buyer. Example: Depth of
basement foundations, depth of backfill in specific areas, etc.
9) The site shall be rough graded and sloped to drain to mitigate any substantial ponding on site.
MILESTONE
10) All utilities are to be terminated at the property line and capped in a manner approved by the
utility provider. MILESTONE
11) Seller shall ensure the site is free of trash and any other debris.
12) Seller shall obtain a Certificate of Completion which documents approval and demolition permit
close-out from the City of Phoenix.
13) Following completion of the site work, the site shall be completely enclosed with a permanent,
screened, 6-foot chain-link fence with a 16-foot double gate.
14) Upon completion of site work, the Seller shall apply an approved soil stabilizer throughout the site
to mitigate dust. MILESTONE
15) Upon the completion of items 1-12 above for the 5th Ave Building, Seller shall contact Deborah
Fisher in the Maricopa County Real Estate Department at Deborah.Fisher@maricopa.gov or 602-
506-1054 to arrange a Buyer’s inspection of the site.
16) Upon the completion of items 1-14 above for the remainder of APN 112-19-022B, Seller shall
again contact Deborah Fisher to arrange a Buyer’s inspection of the site.
City Block Purchase Agreement
Page 34 of 39
EXHIBIT D
Attached to Purchase Agreement & Escrow Instructions
INTENTIONALLY NOT USED
City Block Purchase Agreement
Page 35 of 39
EXHIBIT E
Attached to Purchase Agreement & Escrow Instructions
Form of
ASSIGNMENT OF LEASE
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (“Assignment”) is entered into by and
between DOWNTOWN PHX STORAGE II, LLC, a Delaware limited liability company (“Assignor”) and
MARICOPA COUNTY, a political subdivision of the State of Arizona (“Assignee”).
RECITALS
A. WHEREAS, Assignor and Assignee have entered into that certain Purchase Agreement and Escrow
Instructions dated as of _________________, 2020 (the “Purchase Agreement”), wherein Assignor agreed
to sell and Assignee agreed to buy that certain real property known as Maricopa County Assessor’s Parcel
Numbers (APN) 112-19-976B, 112-19-119B, and 112-10-022C, and the improvements located thereon (the
“Property”), as well as APN 112-19-022B; and
B. WHEREAS, Assignee desires to assume and Assignor desires to assign to Assignee that certain
unrecorded Lease Agreement (the “Lease”) dated April 1, 2019, by and between Wisotsky Properties LLC
as Lessor, and The Pressroom, LLC, an Arizona limited liability company as Lessee. The Lease is attached
hereto as Exhibit “A”, and incorporated herein by this reference and the Estoppel certificate delivered by
Seller to Buyer under the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee agree as follows:
1.
Assignment. Assignor conveys and assigns to Assignee all of Assignor's right, title and interest in
and to the Lease and all security deposits and advance payments thereunder, together with the right to
receive any and all sums and proceeds arising out of said lease, from and after the date of conveyance of
the Property by Assignor to Assignee (the “Conveyance Date”), but reserving unto Assignor all uncollected
rent attributable to the period prior to the Conveyance Date pursuant to the provisions of the Purchase
Agreement.
2.
Assumption. Assignee assumes and agrees to be bound by all of Assignor's liabilities and
obligations arising under the Lease from and after the Conveyance Date and agrees to perform and observe
all of the covenants and conditions contained in the Lease from and after the Conveyance Date.
3.
Indemnification. Assignee covenants and agrees to indemnify and hold harmless Assignor for,
from and against any actions, liabilities, damages, suits, proceedings, or claims, and all costs and expenses
(including without limitation reasonable attorneys' fees) incurred in connection with any breach or alleged
breach by Assignee of the Lease occurring or alleged to have occurred on or after the Conveyance Date.
Assignor covenants and agrees to indemnify and hold harmless Assignee for, from and against any actions,
liabilities, damages, suits, proceedings, or claims, and all costs and expenses (including without limitation
reasonable attorneys' fees) incurred in connection with any breach or alleged breach by Assignor of the
Lease occurring or alleged to have occurred before the Conveyance Date.
4.
Binding Effect. This Assignment shall inure to the benefit of and shall be binding upon the parties
hereto and their respective successors and assigns.
City Block Purchase Agreement
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5.
Venue, Governing Law. This Assignment shall be deemed to be made under, construed in
accordance with, as well as governed, interpreted and regulated by, the laws of the State of Arizona, and
arbitration proceedings, if applicable. Suit to enforce any provision of this Assignment, or to obtain any
remedy with respect hereto, may be brought in the Superior Court of the State of Arizona, Maricopa County.
6.
Counterparts. This Assignment may be executed in counterparts, all of which together shall
constitute one complete Assignment.
7.
Liability. Assignee agrees that the liability of Assignor under this Assignment, the Purchase
Agreement and any other agreement, document, certificate or instrument executed in connection with the
transaction contemplated by the Purchase Agreement, or under any law applicable to the Property or this
transaction, shall be limited as provided in the Purchase Agreement.
ASSIGNOR:
DOWNTOWN PHX STORAGE II, LLC, a Delaware limited liability company
By: ________________________________
James R. Wentworth Date
Manager
By: ________________________________
Stephen L. Clark Date
Manager
ASSIGNEE:
MARICOPA COUNTY, a political subdivision of the
State of Arizona
By: ___________________________________
Title: Chairman, Board of Directors
ATTEST:
Clerk of the Board
Date
APPROVED AS TO FORM:
Deputy County Attorney
Date
City Block Purchase Agreement
Page 37 of 39
ACKNOWLEDGEMENT OF ASSIGNOR
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by James R. Wentworth, Manager, on behalf of Downtown PHX Storage II, LLC, a Delaware
limited liability company.
Notary Public (signature)
My Commission Expires: ______________
ACKNOWLEDGEMENT OF ASSIGNOR
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by Stephen L. Clark, Manager, on behalf of Downtown PHX Storage II, LLC, a Delaware limited
liability company.
Notary Public (signature)
My Commission Expires: ______________
ACKNOWLEDGEMENT OF ASSIGNEE
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of __________________,
20__, by ______________________, the Chairman of the Board of Supervisors, on behalf of Maricopa
County, Arizona.
Notary Public (signature)
My Commission Expires: ______________
City Block Purchase Agreement
Page 38 of 39
Exhibit A
Attached to Assignment of Lease
SEE NEXT PAGE
City Block Purchase Agreement
Page 39 of 39
EXHIBIT F
Attached to Purchase Agreement & Escrow Instructions
RULES OF ARBITRATION
1.
Arbitration.
(a)
General. Any dispute among Seller and Buyer as to whether a Milestone has been
completed materially in accordance with the Work Standards shall be resolved through binding arbitration
before a single arbitrator as hereinafter provided in Phoenix, Arizona.
(b)
Selection of Arbitrator. The arbitrator shall be a civil engineer reasonably approved
by the Parties. The Parties hereby agree that a civil engineer from any of Dibble Engineering, Hoskin Ryan,
and Psomas Engineering is hereby approved as the arbitrator.
(c)
Rules of Arbitration. The arbitrator selected pursuant to Section 1(b) above will
establish the rules for proceeding with the arbitration of the dispute, which will be binding upon all parties
to the arbitration proceeding. The arbitrator is encouraged to adopt the rules the arbitrator deems
appropriate to accomplish the arbitration in the quickest and least expensive manner possible. Accordingly,
the arbitrator may (1) dispense with any formal rules of evidence and allow hearsay testimony so as to limit
the number of witnesses required, (2) act upon his or her understanding or interpretation of the law on any
issue without the obligation to research the issue or accept or act upon briefs of the issue prepared by any
party, (3) limit the time for presentation of any party's case as well as the amount of information or number
of witnesses to be presented in connection with any hearing, and (4) impose any other rules which the
arbitrator believes appropriate to effect a resolution of the dispute as quickly and inexpensively as possible.
(d)
Costs of Arbitration. The cost of the arbitrator shall be split evenly between the
Parties (provided, however, that Buyer shall not be obligated to incur in excess of $5,000.00 for the cost of
the arbitrator).
(e)
Award of Arbitrator. Any award made by the arbitrator shall be binding on Seller,
Buyer and all parties to the arbitration and shall be enforceable to the fullest extent of the law.