RESOLUTION NO. R2003-18
A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF THE TOWN OF CAVE CREEK, MARICOPA COUNTY, ARIZONA AUTHORIZING THE MAYOR, TOWN MANAGER, TOWN CLERK, AND TOWN ATTORNEY TO DO ALL ACTS, SIGN ALL DOCUMENTS, AND PAY ALL SUMS NECESSARY FOR THE ACQUISITION OF A CERTAIN FIVE (5) ACRE PARCEL THAT WILL BE KNOWN AS TRACT C AT THE TIME OF RECORDATION OF THE FINAL PLAT FOR LAS VENTANAS.
NOW THEREFORE BE IT RESOLVED, by the Mayor and Town Council of the Town of Cave Creek, Arizona, as follows:
Section 1. That the Town of Cave Creek wishes to acquire a certain five (5) acre parcel of real property that will become known as Tract C of the Las Ventanas subdivision at the time that the subdivision is recorded in the office of the county recorder of Maricopa county. Section 2. That the Town of Cave Creek and the Owner have agreed that the
compensation to be paid for the real property will be fee credits in the amount of $46,000.00 to be used in connection with the development of Las Ventanas at the discretion of the Owner and that the credits may be assigned.
Section 3. That the Mayor, the Town Manager, Town Clerk and Town Attorney are hereby authorized and directed to do all acts, sign all documents and pay any fees necessary for the transfer of the real property from its present owner. to the Town after the recordation of the final plat of Las Ventanas and subject only to the terms and conditions set forth in a Purchase and Sale Agreement and Escrow Instructions by and between the parties.
ADOPTED AND APPRO D by the Mayor and Town Council of the Town of Cave Creek thisdo day of 2003.
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Carrie A . Dyrek , Town Clerk APPROVED AS TO FORM:
Mariscal , Weeks, McIntyre & Friedlander, P.A. Town Attorneys
PURCHASE AND SALE AGREEMENT AND
ESCROW INSTRUCTIONS
between
INCA CAPITAL MANAGEMENT, LLC, an Arizona limited liability company
and
TOWN OF CAVE CREEK, ARIZONA, a municipal corporation
in the State of Arizona
TABLE OF CONTENTS
Page
1. Purchase and Sale ... 1
2. Opening Escrow ... 1
3. Purchase Price ... 1
4. Title Commitment and Survey ... I (a) Delivery of Title Report ... 1
(b) Reports ... 1
(c) Review and Objection by Purchaser ... 1
(d) ... 1
5. Closing Date ... 2
6. Close of Escrow ... 2
(a) Deliveries to Be Made by Seller ... 2
(b) Deliveries to Be Made by Purchaser ... 3
(c) Prorations ... 3
(d) Closing Costs ... 3
7. Remedies ... 3
(a) Purchaser's Remedies ... 3
(b) Seller ' s Remedies ... 3 (c) Cancellation ... 4 (d) Broker ' s Commission ... 4 (e) Notices ... 4 8. Attorneys ' Fees ... 5 9. Interpretation ... 5
10. Successors and Assigns ... 6
11. Further Instruments and Documents ... 6
12. Integration Clause; No Oral Modification ... 6
13. Governing Law ... 6
14. Severability ... 6
15. Waiver ... 6
16. Counterparts ... 6
17. Time of Essence ... 6
18. Computation of Time Periods ... 6
19. Escrow Instructions ... 7
This Purchase and Sale Agreement and Escrow Instructions (this "Agreement") is made and entered into and is effective as of the day of , 2003, by and between Inca Capital Management, LLC, an Arizona limited liability company, as seller ("Seller"), and the Town of Cave Creek, Arizona, a municipal corporation in the State of Arizona, as purchaser
("Purchaser").
1. Purchase and Sale . Upon and subject to the terms and conditions set forth in this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller the real property located in the County of Maricopa, State of Arizona which is approximately five (5) acres and is to be known as Tract C of the subdivision known as Las Ventanas which is more particularly described and depicted on Exhibit "A" attached hereto and by this reference made a part hereof, together with all improvements thereon and all rights, privileges, easements, and appurtenances thereto (the "Property"). As a condition of approval of the final plat of Las Ventanas, Seller has agreed to convey the Property to Purchaser. Purchaser anticipates that the Property shall be used for the location of a waste water treatment plant to serve the public; however, Seller makes no representation as to the possibility of such use.
2. Opening Escrow. The parties shall cause an Escrow (the "Escrow") to be established with Fidelity National Title Insurance Company, Gerry Ring Waltz ("Escrow Agent"), and such escrow shall be deemed open (the "Opening of Escrow") when a copy of this Agreement has been executed by Purchaser, Seller, and Escrow Agent.
3. Purchase Price . The purchase price for the Property shall be FORTY-SIX THOUSAND AND NO/100 U.S. DOLLARS ($46,000.00) (the "Purchase Price"), which shall be paid by Purchaser in the form of credits granted by Purchaser to Seller (the "Credits") against the cost of development and building permits in connection with the development of the Property in the amount of the Purchase Price. The Credits shall be transferable by Seller to any developer or builder acquiring the Property or any portion thereof
4. Title Commitment and Survey.
(a) Delivery of Title Report . As soon as practical following the Opening of Escrow, Seller shall deliver or cause to be delivered to Purchaser a Commitment (the "Title Commitment") for an ALTA Standard Coverage Owner's Title Insurance Policy for the Property (the "Title Policy") from Fidelity National Title Insurance Company, and copies of all documents referenced as exceptions therein.
(b) Reports . Seller shall deliver to Purchaser copies any existing environmental survey and any existing archeological report in Seller's possession. Buyer, at Buyer's sole cost and its discretion, shall obtain a new or updated phase 1 environmental survey of the Property, (the "Environmental Survey").
(c) Review and Objection by Purchaser.
(i) Seller covenants and agrees that Purchaser shall have the right to examine the Title Commitment and the Environmental Survey and to notify Seller of any objectionable matter or defect that affects the marketability or insurability of the title to the Property or the identification of any environmental condition that adversely affects the use of the
Property by delivering written notice (a "Title Notice") of such objection to Seller and Escrow Agent within thirty (30) days of receipt of both the Title Commitment and the Environmental Survey but in no event later than October 15, 2003 (the "Inspection Period"). Any Title Notice delivered by Purchaser shall specify in reasonable detail any matter to which Purchaser objects (the "Disapproved Exception(s)"). If Escrow Agent subsequently issues any amendments to the Title Commitment, or the environmental surveyor subsequently issues any amendment to the Survey, then Purchaser shall be entitled to review such amendments and notify Seller of any objectionable matter or defect by delivering a Title Notice within five (5) days after Purchaser's receipt of such amendment, and the Inspection Period shall be so extended. If Purchaser fails to deliver a Title Notice, Purchaser shall be deemed to have approved of the same. In no event shall the delivery of any such amendment extend the date of Closing.
If Purchaser timely delivers a Title Notice, then Seller shall notify Purchaser within five (5) days following the date of receipt of the Title Notice that Seller is either (A) unwilling or unable to have the Disapproved Exception(s) removed, or (B) willing to use reasonable efforts to cause the Disapproved Exception(s) to be removed or cured, in which case the removal or cure of the Disapproved Exception(s) shall be a condition to the Closing. Purchaser shall have until the end of the Inspection Period to terminate this Agreement, in which event neither Purchaser nor Seller shall have any further liabilities, obligations, or rights with regard to this Agreement, which shall then become null and void and of no further force or effect.
(ii) At the end of the Inspection Period , any and all matters set forth in the Title Commitment or any amendment thereto, except for such matters that Seller has agreed to use reasonable efforts to have removed or cured pursuant to Section 4(c)4(d)( ii), shall be deemed "Permitted Exceptions."
5. Closing Date . Subject to the provisions of this Agreement, the Closing, as evidenced by recording of the Deed (the "Closing" or "Close of Escrow"), shall take place at the office of Escrow Agent on or before five (5) days after the recording of the Final Plat of Las Ventanas.
6. Close of Escrow.
(a) Deliveries to Be Made by Seller . On or before the Close of Escrow, Seller shall deliver to Escrow Agent for filing, recordation, or delivery to Purchaser, as appropriate, upon the Close of Escrow, the following:
(i) A special warranty deed with respect to the Property in form and substance identical to Exhibit "B" attached hereto (the "Deed");
(ii) A non-foreign affidavit in form and substance provided by Escrow Agent (the "Affidavit"); and
(iii) Any additional instruments, duly executed and appropriately acknowledged by Seller and any other applicable party, as may be reasonably required by Purchaser and/or Escrow Agent and/or necessary for Seller to have complied with the terms of this Agreement.
(b) Deliveries to Be Made by Purchaser . On or before the Close of Escrow, Purchaser shall deliver to Escrow Agent for filing, recordation, or delivery to Seller, as appropriate, upon the Close of Escrow, the following:
(i) The Purchase Price and such additional amounts as may be
required to allow Purchaser to satisfy its obligations under this Agreement; and
(ii) Any additional instruments, duly executed and appropriately acknowledged by Purchaser, as may be reasonably required by Seller and/or Escrow Agent and/or necessary for Purchaser to have complied with the terms of this Agreement.
(c) Prorations . All real property taxes shall be prorated (employing a 365-day year) between Purchaser and Seller as of the date of Closing based upon the latest available information.
(d) Closing Costs. Seller's attorneys' fees, all recording or transfer taxes and tax collection fees, and all recording fees on recordable documents shall be paid by Seller. The cost of the standard coverage owner's title policy shall be paid by Seller. Purchaser shall pay the additional cost for extended coverage and any endorsements requested by Purchaser. Purchaser shall be responsible for payment of its own attorneys' fees and the costs of the Environmental Survey. The escrow fee payable to Escrow Agent in connection with the Escrow and all other fees and expenses incidental to the sale and transfer of the Property to Purchaser shall be split equally between the parties. Purchaser shall deposit in Escrow, on or before the Close of Escrow, sufficient amounts to cover its share of closing costs and all other items prorated in accordance with this Agreement, to the extent applicable. Seller's share of closing costs and all other items prorated in accordance with this Agreement, to the extent applicable, shall be paid from the proceeds otherwise payable to Seller.
7. Remedies.
(a) Purchaser ' s Remedies . If Seller fails to perform any of Seller's obligations under this Agreement and if such failure continues for five (5) days after Purchaser provides Seller with written notice thereof, Purchaser may, as Purchaser's sole remedies for such failure, but without limiting Purchaser's right to recover attorneys' fees pursuant to Section 8 below: (a) waive the effect of such matter and proceed to consummate this transaction; (b) cancel this Agreement and recover from Seller the reasonable out-of-pocket expenses incurred by Purchaser related to the Property and this transaction.
(b) Seller' s Remedies . If Purchaser shall breach any of the terms or provisions of this Agreement or otherwise default at or prior to the Close of Escrow and if such failure continues for five (5) days after Seller provides Purchaser with written notice thereof, Seller may waive such breach and close the Escrow in accordance with the terms hereof, or Seller may, as its sole remedies, but without limiting Seller's right to recover attorneys' fees pursuant to Section 8 below: (a) waive the effect of such matter and proceed to consummate this transaction; (b) cancel this Agreement and recover from Purchaser the reasonable out-of-pocket expenses incurred by Seller related to the Property and this transaction. Nothing contained in
this Section shall limit or prevent Seller from enforcing Purchaser's obligations and liabilities that survive a termination of this Agreement.
(c) Cancellation . If Purchaser or Seller elects to cancel this Agreement or if it is otherwise deemed cancelled pursuant to its terms, such cancellation shall be effected by the canceling party giving written notice of the cancellation to the other party and Escrow Agent. Upon such cancellation, all documents deposited in Escrow shall be returned to the party who supplied the documents and this Agreement and the Escrow shall be deemed cancelled and terminated, and except as expressly provided in this Agreement, neither party shall have any further obligations hereunder.
(d) Broker' s Commission . Each of Purchaser and Seller represents and warrants to the other than no real estate broker or agent has been instrumental in the procurement of this Agreement and no real estate commission or compensation is or shall be payable by such party in connection with the procurement and execution of this Agreement or the sale of the Property contemplated hereby. Each party shall indemnify and save the other party wholly harmless against any loss, cost, or other expense, including attorney's fees, that may be incurred by such other party by reason of any breach of the foregoing warranties.
(e) Notices All notices or other communications required or provided to be sent by either party or Escrow Agent shall be in writing and shall be sent (i) by United States Postal Service, postage prepaid, certified, return receipt requested, or (ii ) by any nationally known overnight delivery service, or (iii) by courier, or (iv) by facsimile transmission , or (v) in person. All notices shall be deemed to have been given three days following deposit in the United States Postal Service, or upon receipt if sent by overnight delivery service , courier, or facsimile transmission or if personally delivered. All notices shall be addressed to the party at the address below:
To Seller: INCA CAPITAL MANAGEMENT, LLC
an Arizona limited liability company 8501 N. Scottsdale Road, Suite 165 Scottsdale, Arizona 85253
Attn: Gregg Wolin Fax: (480) 947-5335 Phone : (480) 947-5900 With a copy to: Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 700 Phoenix, Arizona 85016-9000 Attn: C. Timothy White, Esq. Fax: (602) 445-8602
Phone: (602) 445-8249
To Purchaser: TOWN OF CAVE CREEK 37622 North Cave Creek Road Cave Creek, Arizona 85331 Attn: Town Manager Fax: (480) 488-2263 Phone: (480) 488-6611 With a copy to: William E. Farrell
Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 North Central Avenue
Suite 200
Phoenix, Arizona 85012-2705 Telephone: (602) 285-5000 Fax: (602) 285-5100
To Escrow Agent: Fidelity National Title Insurance Company 2415 E. Camelback Road, Suite 100 Phoenix , AZ 85016
Attn: Gerry Ring Waltz Fax: (480) 344-6423 Phone : (480) 344-6400
Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with this paragraph. The inability to deliver because of a changed address of which no notice was given or rejection or other refusal to accept any notice shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party.
8. Attorneys' Fees. If either party hereto breaches any provisions of this Agreement, the breaching party shall pay to the non-breaching party all attorneys' fees and other costs and expenses incurred by the non-breaching party in enforcing this Agreement or preparing for legal or other proceedings, regardless of whether suit is instituted. If it becomes necessary for either party to employ legal counsel or to bring an action at law or other proceeding to enforce any of the terms, covenants, or conditions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its costs and expenses incurred in such action from the other party, including, without limitation, reasonable attorneys' fees, set by the court and not a jury, at both trial and appellate levels, and if any judgment is obtained by the prevailing party, all such costs, expenses, and fees shall be included in the judgment.
9. Interpretation . The captions in this Agreement are for convenience of reference only, do not constitute a part of this Agreement, and are not to be considered in construing or interpreting this Agreement. All section, preamble, recital, clause, exhibit, schedule, and party references are to this Agreement unless otherwise stated. This Agreement is the result of arms-length negotiations between parties of roughly equivalent bargaining power and expresses the complete, actual, and intended agreement of the parties. No party, nor its counsel, shall be deemed the drafter of this Agreement for construing the provisions of this Agreement and all
provisions of this Agreement shall be construed in accordance with their fair meaning, and not strictly for or against any party.
10. Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors in interest and permitted assigns. Purchaser may not assign or otherwise transfer this Agreement without the express written consent of Seller, which may be granted or withheld in Seller's sole and absolute discretion.
11. Further Instruments and Documents . Each party hereto shall promptly, upon the request of the other party or Escrow Agent, acknowledge and deliver to the other party or Escrow Agent any and all further instruments and assurances reasonably requested or appropriate to evidence or to give effect to the provisions of this Agreement or to satisfy Escrow Agent's requirements.
12. Integration Clause; No Oral Modification . This Agreement represents the entire agreement of the parties with respect to its subject matter, and all agreements, oral or written, entered into prior to this Agreement are revoked and superseded by this Agreement. No representations, warranties, inducements, or oral agreements have been made by any of the parties except as expressly set forth herein or in other contemporaneous written agreements. This Agreement may not be changed, modified, or rescinded, except in a writing, signed by all parties hereto, and any attempt at oral modification of this Agreement shall be void and of no effect.
13. Governing Law. This Agreement shall be deemed to be made under, shall be construed in accordance with, and shall be governed by the laws of the State of Arizona, including, A.R.S. 38-511.
14. Severability. If any provision of this Agreement is declared void or unenforceable, such provision shall be deemed severed from this Agreement, and this Agreement shall otherwise remain in full force and effect.
15. Waiver. Failure of any party to exercise any right, remedy, or option arising out of a breach of this Agreement shall not be deemed a waiver of any right, remedy, or option with respect to any subsequent or different breach or the continuance of any existing breach.
16. Counterparts . This Agreement may be executed in any number of counterparts. Any set of identical counterparts containing the signatures of all parties shall be deemed to constitute one instrument, and each such set of counterparts shall be deemed an original.
17. Time of Essence . Time is hereby declared to be of the essence for the performance of all conditions and obligations under this Agreement.
18. Computation of Time Periods . In computing any period of time prescribed or allowed by this Agreement, the day of the act or event (including the day of posting notices) from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or an Arizona legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a
Sunday, or an Arizona legal holiday. Any deadline that falls on a Saturday, Sunday, or Arizona legal holiday shall be extended to 5:00 p.m. on the next business day.
19. Escrow Instructions . This Agreement shall constitute joint escrow instructions by Purchaser and Seller to Escrow Agent and the parties need not execute any separate escrow instructions.
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the date first written above.
PURCHASER:
THE TOWN OF CAVE CREEK, ARIZONA,
SELLER:
INCA CAPITAL MANAGEMENT, LLC, a munic. l corporatio an Arizona limited liability company By: ✓ By : INCA CAPITAL, LLC,
an Arizona limited liability company ` t / /
Name: U i' i 4A t 4- Fraf^ [a ck. Its: Manager Its: Cllr
By: William W. Cleverly Its: Managing Member
ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the Purchase and Sale Agreement and Joint Escrow Instructions and agrees to act in strict accordance with the terms thereof.
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
Name: Gerry Ring Waltz Its: Authorized agent
Date: , 2003
EXHIBITS EXHIBIT " A" Description of Real Property
EXHIBIT " B" Special Warranty Deed
EXHIBIT "A"
DESCRIPTION OF REAL PROPERTY
EXHIBIT "B"
SPECIAL WARRANTY DEED (attached)
WHEN RECORDED, RETURN TO: C. Timothy White, Esq.
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 700 Phoenix, Arizona 85016
SPECIAL WARRANTY DEED
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned, , a(n)
(the "Grantor"), hereby grants to , a(n)
(the "Grantee"), that certain real property described on Exhibit "A" attached hereto (the "Property");
SUBJECT TO: All general and special real property taxes and other assessments, reservations in patents , water rights , claims or title to water and all easements , rights of way, covenants, conditions , restrictions and other non-financial matters as may appear of record, any matter shown on the subdivision plat referenced above , any matters arising in connection with any action of Grantee or its employees , contractors , agents or representatives , any other matter not caused by the act or authorization of Grantor.
AND GRANTOR hereby binds itself and its successors to warrant and defend the title against all of the acts of Grantor and no other , subject to the matters set forth above.
IN WITNESS WHEREOF, the undersigned has executed this Special Warranty Deed as of this day of ,
GRANTOR:
By
Its
STATE OF ARIZONA County of Maricopa
) ) ss. )
The foregoing instrument was acknowledged before me this day of
200_, by
, as of
a(n) , on behalf of the
My commission expires:
Notary Public
