APN10101017B_FINALPSA_TOAVONDALE.PDF
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PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
C-78-___-___-__-00
This Agreement is entered into by and between MARICOPA COUNTY, a political subdivision of
the State of Arizona (hereinafter Seller), and the CITY OF AVONDALE, an Arizona municipal
corporation (hereinafter Buyer).
Agreement means, when fully executed by Seller and Buyer, this Purchase Agreement and Escrow
Instructions.
WITNESSED
THAT Seller agrees to sell to Buyer and the Buyer agrees to purchase from Seller, the property
described and depicted on Exhibits A and B (hereinafter Property).
Seller will convey the Property to Buyer via a duly executed Special Warranty Deed, the form of
which is attached hereto and made a part hereof as Exhibit C.
Buyer’s obligation to purchase the Property is conditioned on Buyer obtaining approval from the
Buyer’s City Council to proceed with the contemplated purchase of the Property. Seller obligation to the
sell the Property is conditioned on Seller obtaining approval form the Seller’s Board of Supervisors to
proceed with the contemplated sale of the Property.
1. PURCHASE PRICE. The purchase price for the Property is two million, four hundred and five
thousand dollars ($2,405,000.00) and shall be paid by the Buyer to the Seller on or before the close of
escrow.
1.01. Escrow Agent.
a) The escrow agent (hereinafter Escrow Agent) referred to in this Agreement is listed
below:
Company: Security Title Agency, Inc
Address: 4722 N. 24th St. Ste. 200, Phoenix AZ 85016
Agent: Jason Bryant
Phone: (602) 230-6297
Fax: (602) 926-0452
Email: jbryant@securitytitle.com
b) This Agreement will also constitute escrow instructions to Escrow Agent.
1.02.
Escrow Opening Date. The Escrow Opening Date shall be the date of delivery to
Escrow Agent of a fully executed and conformed original or counterpart original of this
Agreement.
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1.03. Close of Escrow. Close of Escrow shall occur no later than sixty (60) business days
after the Escrow Opening Date, which date shall be hereinafter referred to as the Close
of Escrow or Closing or Closing Date. At the Close of Escrow, both the title to and
possession of the Property shall be transferred from the Seller to the Buyer. Any
monetary encumbrances existing against the Property at the Close of Escrow shall be
satisfied from the Seller’s proceeds at Close of Escrow.
1.04. Title Insurance; Closing Costs and Prorations.
a) 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 and naming Buyer as the insured.
Seller agrees that the cost of the standard coverage owner’s title policy, including but
not limited to any real property taxes and assessments due (if any) on the Property,
shall be deducted from Seller’s proceeds at Close of Escrow. Buyer and Seller each
agree to pay one-half (1/2) of the Closing costs and escrow charges except as
previously stated herein. The Buyer shall be responsible for all taxes and assessments
levied against the Property after the Closing Date. Each party agrees to pay its own
attorney fees.
b) All of the above-referenced costs that are the responsibility of the Buyer shall be paid
into escrow on or before the Close of Escrow in addition to the purchase price. All
costs that are the responsibility of the Seller as referenced above shall be paid from
the Seller’s proceeds at Close of Escrow.
1.05. Brokerage Commission. The Buyer and Seller hereby agree that they have represented
themselves in this transaction and no real estate broker, agent, or agency was contacted
to market and/or sell the Property, nor was any real estate broker, agent, or agency
responsible for negotiating the terms of this Agreement. If any real estate broker, agent,
or agency should make a claim for commission(s), the party whose action led to such
claim shall be solely responsible for the resolution of such issue, including the obligation
to indemnify, hold harmless, and defend all other parties hereto. This indemnity shall
survive termination of this Agreement and the Close of Escrow.
1.06. Closing Documents. On or before the Close of Escrow, Seller shall deliver to Escrow
Agent:
a) A Special Warranty Deed, duly executed and acknowledged on by of the Board of
Supervisors of the Seller, conveying the Property to the Buyer, the form attached hereto
and made a part hereof as Exhibit C.
b) Such other documents as shall be reasonably required by Buyer and/or Escrow Agent
as a condition to insuring title to the Property.
2. TITLE COMMITMENT.
2.01. Preliminary Title Report. The Seller has provided to Buyer, at Seller’s expense, a
current preliminary title report or commitment for title insurance to be issued concerning
the Property (hereinafter Title Report). Further, in the event that any updates,
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supplements or amendments to the Title Report are subsequently prepared copies of such
documents shall be delivered to Buyer.
If Buyer objects to any matters in the Title Report and any amendments thereto that
Buyer receives before the expiration of the Inspection Period, Buyer may deliver to
Seller and Escrow Agent, before the expiration of the Inspection Period, a written notice
objecting to such matter(s), and if Seller elects not to cure such matters within five (5)
days of receiving Buyer’s objections, then Buyer may cancel this Agreement by notice
to Seller and Escrow Agent, whereupon this Agreement shall automatically terminate.
If Buyer receives an amended Title Report on or after the expiration of the Inspection
Period, then Buyer shall have until two (2) business days after the receipt within which
to object in writing to Seller and Escrow Agent to any new matters affecting title therein.
If Seller elects not to cure such matters within five (5) days of receiving Buyer’s
objections, then Buyer may cancel this Agreement by notice to Seller and Escrow Agent,
whereupon this Agreement shall automatically terminate. The Closing Date shall be
automatically extended, if necessary, to accommodate the time periods referenced in this
Section 2.01.
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 (in Seller's sole and absolute discretion) sum
or effort in order to fulfill any condition, nor shall Buyer otherwise have any right or
action against Seller in respect thereof.
At the Buyer's option, the Buyer may procure an extended coverage title insurance
policy, if available, in which event the Buyer shall pay the amount of increased premium
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 the Buyer in
the amount of the Purchase Price of the Property.
3. SELLER'S REPRESENTATIONS.
3.01.
Seller owns the Property in fee simple and has full power and authority to execute this
Agreement and to consummate the transaction contemplated herein.
3.02.
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.
3.03.
Seller represents that there are no parties in adverse possession of the Property; there
are no parties in possession of the Property except Seller; and no party has been granted
any license, lease, or other right relating to the use or possession of the Property. Seller
has not granted any rights of first refusal or options to purchase the Property to any third
party.
3.04.
Seller makes no representations whatsoever regarding conditions or features of the
subject property.
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3.05.
Seller further makes no representation as to zoning, access, availability of utilities, or
development potential of the site.
3.06.
Seller is a political subdivision of the State of Arizona, and therefore is exempt from
paying real property taxes. Upon completion of the recording of the conveyance deed to
the Buyer, Buyer shall become responsible for real property taxes and assessments (if
any) as required by law.
3.07.
Upon full execution of this Agreement, Seller agrees that it will not at any time prior to
Close of Escrow, grant to any party any interest in the Property or voluntarily encumber
the Property.
3.08.
After this Agreement is fully executed, Seller agrees to continue to maintain the Property
through Close of Escrow in the same condition the Property exists at the execution of
this Agreement, general wear and tear excepted.
All representations and warranties 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.
4. ACCESS TO PROPERTY.
4.01.
Buyer’s Investigations; Right of Entry.
Upon full execution of this Agreement, and ending at 5 p.m. on the thirtieth (30th) day
following the Escrow Opening Date (hereinafter Inspection Period), Buyer, and its
agents or assigns, shall have the right to enter the Property, via a separate right of entry,
at their sole cost and expense, for the purposes of completing such investigations,
surveys and physical inspections of the Property, including but not limited to a Phase I
environmental site assessment, and if necessary, a Phase II environmental site
assessment (hereinafter Buyer Investigations), as Buyer deems necessary 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. 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 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. Seller has no obligation
to cure or remove any matter found as a result of the Buyer Investigations.
4.02.
Appraisal. Seller will deliver to Buyer a copy of the existing appraisal relating to the
Property. The appraisal: (1) has been provided by others to Seller; (2) has not been
prepared by or verified by Seller; (3) is provided simply as an accommodation to Buyer;
and (4) Seller makes no representations or warranties as to its accuracy or completeness.
4.03.
Insurance. The parties acknowledge and agree that both Buyer and Seller are self-
insured. If Buyer chooses to enter the Property for the purposes of conducting the Buyer
Investigations contemplated above, Buyer and/or Buyer’s contractors shall obtain and
keep in force during the term of the entry, a commercial general liability insurance
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policy with a combined single limit of not less than $2,000,000 covering single limit
coverage per occurrence for bodily injury, personal injury and property damage and
workers’ compensation with limits not less than $2,000,000 for each accident,
$2,000,000 disease for each employee, and $2,000,000 disease policy limit. All policies
of insurance required to be provided hereunder by Buyer shall be issued by insurer(s)
licensed and qualified to do business in the State of Arizona, with a current A.M. Best
Company rating of at least B++VII. Prior to entry, Buyer shall deliver to Seller
certificates of insurance, evidencing the existence and amounts of the policies of
insurance required pursuant to this section, as well as the deductibles.
4.04.
Reports. Seller shall be named as a party authorized to view and rely on the results of
any reports(s) produced by or on behalf of Buyer as a result of Buyer Investigations
contemplated above and shall be provided with a copy of any such reports at Buyer’s
expense.
4.05.
Damages. Buyer shall be solely responsible for any damage Buyer causes to the
Property prior to the Close of Escrow.
4.06.
Claims arising out of entry. To the extent not prohibited by law, Buyer, and its agents or
assigns, agree to indemnify, defend, and hold harmless the 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 on to the Property for the
purposes of conducting the 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 its officers, officials, agents, employees, or
contractors.
5. BUYER'S REPRESENTATIONS.
5.01.
Buyer represents that it has full power and authority to enter into this Agreement and to
consummate all of the transactions hereby contemplated and agrees that simultaneous
with execution of this Agreement, Buyer shall provide proof that the person who
executed this Agreement on behalf of Buyer has the legal authority to bind Buyer.
5.02.
Buyer represents that neither the execution of this Agreement nor the performance by
Buyer of its obligations under this Agreement will result in any breach or violation of
the terms of any law, rule, ordinance or regulation. There are no consents, waivers,
authorizations or approvals from any third party necessary to be obtained by Buyer in
order to carry out the transactions contemplated by this Agreement.
6. RISK OF LOSS. 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
the Seller until the title and possession of the Property passes to the Buyer at Close of Escrow. Seller shall
indemnify and hold Buyer harmless for all such loss, damage, liability, fees or costs of any kind whatsoever,
except those caused by the Buyer. This indemnity shall survive termination of this Agreement. If any loss,
damage, or taking occurs prior to Close of Escrow of the Property (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,
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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, the cancellation will be immediate 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. ENVIRONMENTAL LIABILITY. To the best of Seller’s knowledge no hazardous
substances or wastes or petroleum products have been located on the Property, and Seller has received no
notice of any violations of any local, state or federal statutes or laws governing the generation, treatment,
storage, disposal or clean-up of hazardous substances. To the best of Seller’s knowledge, there are no
underground storage tanks on the Property.
8. ASSIGNABILITY. Neither the Seller nor the Buyer may assign any of its rights or obligations
under this Agreement without the other party’s advance written consent. This Agreement shall be binding
upon Seller and Buyer and their respective successors and assigns.
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 Seller shall be liable for all
customary escrow cancellation charges. Such payment will be the Buyer's sole and
exclusive remedy in the event of default by Seller. Buyer hereby waives and releases
any right to (and hereby covenants that Buyer shall not) sue the Seller for (a) specific
performance, or (b) damages.
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, 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, the Buyer shall be liable for all
customary escrow cancellation charges. Such payment will be the Seller’s sole and
exclusive remedy in the event of default by Buyer. Seller hereby waives and releases
any right to (and hereby covenants that Seller shall not) sue the Buyer for (a) specific
performance, or (b) damages.
10. “AS-IS, WHERE IS”. At Close of Escrow, the Property will be conveyed to the Buyer by
Seller in a strict “as is, where is” condition. Seller has made no representations or warranties regarding the
condition of the Property other than as set forth in this document and Buyer does not and may not rely upon
any representation or warranty that is not set forth in writing in this Agreement or in the Special Warranty
Deed.
11. 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. 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) days
following the depositing of the same in a post office box regularly maintained by the United States Postal
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Service.
SELLER:
BUYER:
Maricopa County
City of Avondale
Attn: Director, Real Estate Department
City Manager
2801 W. Durango Street
11465 W. Civic Center Drive
Phoenix, AZ 85009
Avondale, AZ 85323
12. GENERAL PROVISIONS.
12.01. 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.
12.02. 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.
12.03. Authority to Execute. The Seller and Buyer both acknowledge that the persons whose
signatures appear below have appropriate authority to execute this Agreement on behalf
of the Seller and Buyer.
12.04. 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.
12.05. Attorney Fees. If there is any litigation or arbitration between Seller and Buyer to
enforce or interpret any provisions or rights of this Agreement, the unsuccessful party
in the litigation or arbitration, as determined by the court or arbitrator, agrees to pay the
successful party, as determined by the court or arbitrator, all costs, reasonable legal fees,
and expenses (through trial and appeal), including, but not limited to, reasonable
attorney fees incurred by the successful party in a reasonable amount.
12.06. 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
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.
12.07. Conflict of Interest. This Agreement is subject to A.R.S. 38-511 and may be canceled
pursuant thereto.
12.08. Waiver. Failure of either party to exercise any right or option arising out of a breach of
this Agreement shall not be deemed a waiver of any right or option with respect to any
subsequent or different breach, or the continuance of any existing breach.
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12.09. Ambiguity. This Agreement was drafted by the Seller with the assistance of their
attorneys. Neither the Seller nor its attorneys have rendered legal or other advice to the
Buyer regarding sale of the Property or the specific terms of this Agreement. Buyer is
aware of its right to obtain independent professional and/or legal assistance with this
Agreement and, upon signing of the Agreement, represents that they have taken all steps
they deem 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.
12.10. Governing Law. This Agreement shall be deemed to be made under, and shall be
construed in accordance with and shall be governed, interpreted and regulated by, the
laws of the State of Arizona, and arbitration proceedings, if applicable, or 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 or in the United
States District Court for the District of Arizona, and for this purpose each party hereby
expressly and irrevocably consents to the jurisdiction of said Courts.
12.11. Statutory Authority. The Property is being sold to Buyer in compliance with A.R.S.
11-251(9) with unanimous consent of Seller’s Board of Supervisors.
12.12. 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.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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Accepted and executed this _____ day of ____________, 2021.
BUYER:
SELLER:
CITY OF AVONDALE,
an Arizona municipal corporation
By: _________________________________
Charles A. Montoya,
Avondale City Manager
Date: ____________________________
MARICOPA COUNTY,
a political subdivision of the State of Arizona
By:_______________________________
Jack Sellers
Chairman of the Board of Supervisors
Date: _____________________________
_____________________________________
City Clerk
ATTEST:
____________________________________
Clerk of the Board Date
APPROVED AS TO FORM:
__________________________________
Nicholle Harris Date
City Attorney
APPROVED AS TO FORM:
___________________________________
Deputy County Attorney Date
ACCEPTANCE BY ESCROW AGENT
The Purchase Agreement & Escrow Instructions are accepted on this _______ day of
__________________, 2021.
ESCROW AGENT: SECURITY TITLE AGENCY
By: _____________________________________
Jason Bryant, Escrow Agent
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EXHIBIT A
Attached to Purchase Agreement & Escrow Instructions
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EXHIBIT B
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EXHIBIT C
SPECIAL WARRANTY DEED