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HomeMy WebLinkAboutSETTLEMENT AGREEMENT AND RELEASE BUYER ALONZO P BOARDMAN JRDate "). REAL ESTATE PURCHASE AGREEMENT This Agreement entered into as of the. 2nd day of October , 2012( "Reference I. PARTIES Seller, AUGUSTA, GEORGIA, a political subdivision of the State of Georgia and Buyer, Alonzo P. Boardman Jr. , wish to enter this, a mutual Real Estate Agreement ( "Agreement ") Seller owns and agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all that real property, described in Exhibit "A" attached to hereto, together with all improvements now located on or in such real property and all rights, privileges, and easements appurtenant to such real property (collectively the "Property "), subject only to the permitted title exceptions as defined in this Agreement. II. PRICE Subject to and pursuant to the following terms and conditions, Seller shall sell, convey, and transfer the Property to Buyer and Buyer shall purchase the Property from Seller and pay to Seller the sum of on ° e Riungei anduon and No /100 U.S. Dollars ($ 200,101 .00), by the delivery of immediately available and collectible funds payable at Closing, less the deposit as defined below and subject to adjustment as provided in this agreement. III. INSPECTION At the time of the Acceptance Date, the Bid Bond in the amount of $10,005.05 and No/U.S. Dollars submitted by Buyer to Sherman & Hemstreet Real Estate Company shall thereafter be held by Sherman & Hemstreet Real Estate Company, "the Escrow Agent ", as earnest money for this contract (the "Deposit ") which shall entitle Buyer, for a period of sixty (60) days from the date of acceptance by Seller or Buyer who last executes and causes the Agreement to be binding (the "Acceptance Date "), the right to inspect and make tests of the Property, review the title to the Property, survey the Property, obtain applicable approvals and (with Seller's cooperation as required, at Buyer's expense) obtain all third party approvals and consents, all as Buyer may deem appropriate, in order that Buyer may determine whether, in Buyer's sole discretion, the Property is suitable for Buyer's development, during this "Inspection Period ". The Buyer may extend the Inspection Period for one (1) additional thirty (30) day periods by making an additional deposit of five (5 %) percent of the contract price ( "Additional Deposit "), which sum shall be non - refundable, but apply toward the Purchase Price. The Deposit shall remain refundable and applied to the Purchase Price during the Inspection Period and any extension to the Inspection Period. The retention by Seller of the Additional Deposit is in addition to any remedies Seller may have in the event that Buyer defaults under this Agreement. IV. PURCHASE NOTICE In the event that Buyer shall have determined that the Property is suitable for the Buyer's intended use and gives Seller written notice of its intent to purchase the Property on or before the expiration of the Inspection Period (the "Purchase Notice "), the Deposits shall be applied to the Purchase Price. In the event that Buyer shall elect not to purchase the Property, the Seller herein grants to Buyer the option to rescind this Agreement. To exercise the Option to Rescind Buyer shall give Seller written notice of rescission during the Inspection Period. Upon exercise of rescission, Escrow Agent shall return the Deposit to Buyer and thereafter the Parties shall have no further obligations or liability hereunder. If the -32- Buyer does not rescind this Agreement and fails to consummate the purchase, then in such event, Seller shall retain the Earnest Money as provided in XVII (J), herein. V. CLOSING The closing of the purchase of the Property shall occur on or before fifteen (15) days after Buyer delivers the Purchase Notice, to Seller and Escrow Agent which shall specify the date of Closing. VI. TITLE Seller shall not sell, encumber, or transfer title or any interest to the Property while this Agreement remains in effect. Seller shall convey fee simple title to the Property to the Buyer at Closing pursuant to a recordable general warranty deed. The title to the Property to be conveyed by Seller to Buyer will be insurable by Lawyers Title Insurance Corporation ( "Title Company ") under its standard ALTA Owner's Policy of Title Insurance at standard rates, free and clear of all liens, encumbrances, and other exceptions to title, except the Permitted Title Exceptions (as hereinafter defined). The legal description to be incorporated into the aforesaid general warranty deed shall be prepared pursuant to the Buyer's Survey. Seller warrants and shall deliver to Buyer at Closing an affidavit acceptable to Buyer and to the Title Company stating that Seller has sole and exclusive possession of the Property subject to the Permitted Title Exceptions and stating that either (A) there have been no improvements, additions, alterations, repairs or any changes of any kind whatsoever made to the Property during the last one hundred twenty days immediately preceding Closing, or (B) if there have been any such improvements or repairs, that all lienors or potential lienors in connection with such improvements or repairs have been paid in full. Seller shall also supply to Buyer at Closing such other documentation reasonably required by Buyer, including, a non - foreign affidavit, and evidence of authority to consummate the sale, all in a form and substance acceptable to Buyer. Buyer may notify Seller of any objectionable matter or defect which affects the marketability or insurability of the title to the Property or which adversely affects the use of the Property for the Project. In the event Seller is notified of any such objectionable matters, Seller agrees to promptly cure objections. In the event, however, Seller is unable through the exercise of its good faith best efforts (which shall include the payment of money with respect to any existing deeds to secure debt, mortgages, deeds of trust, liens or other matters that can be removed by the payment of money) to cure any objectionable matter prior to Closing, then at Buyer's option, Buyer may either (i) take title to the Property despite the existence of such matter, or (ii) require Seller to cure said title defects through "specific performance ", or (iii) terminate this Agreement in which event, notwithstanding anything to the contrary contained herein, all Deposits paid by Buyer shall be immediately refunded by Escrow Agent to Buyer except One Hundred U.S. Dollars which shall be paid to Seller in consideration of entering into this Agreement, and neither Buyer 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. Any title exceptions or survey matters to the Property to which Buyer does not object, or to which Buyer waives its objection, are referred to herein as "Permitted Title Exceptions ". In the event that any title exceptions or survey matters exist that affect the marketability or insurability of the title to the Property or which adversely affect the use of the Property for the Project, Buyer may after the discovery thereof notify Seller, in which event Seller shall promptly employ its good faith best efforts to procure a cure for same, as required above, and upon the failure of Seller to effectuate a cure, then Buyer may elect any of the options set forth above. Seller shall deliver to Buyer vacant and exclusive possession of the property at closing. VII. SITE INSPECTION After the Acceptance Date of this Agreement, Buyer and its designated agents or representatives shall at all times before the Closing have the privilege, opportunity, and the right to enter the Property in order to inspect and examine the Property, and perform engineering studies such as, but not limited to, topographical surveys, soil tests, borings, percolation tests and other tests needed to determine surface, subsurface, topographic and other physical conditions for the purpose of performing inspections, provided that such inspections are at Buyer's sole expense and do not damage the Property. VIII. SURVEY Buyer, at its expense prior to Closing, may procure a current survey of the Property prepared by a Registered Surveyor. IX. CONTINGENCIES If the following items have not been satisfied in favor of and to Buyer's satisfaction, as determined by Buyer prior to Closing, Buyer shall be entitled to terminate this Agreement, in which event the Deposits shall be returned to Buyer: (i) Appropriate zoning for Buyer's intended use and all other governmental approvals for the Project; (ii) Availability and adequacy of all utilities; (iii) Approval from applicable governmental authorities of entitlements and access to Property and other roads; (iv) Absence of wetlands, hazardous wastes, or other adverse environmental conditions; (v) Buyer's review of and acceptance of any leases and/or rent rolls currently on the property; (vi) Buyer's obtaining all third party consents and approvals required to develop the Project (vii) Buyer's sole discretion as to whether the proposed project on the property is feasible or not. Seller agrees to cooperate with Buyer in any efforts to satisfy the contingencies described above, including the execution of related documentation, petitions for rezoning or subdivision of the Property and further Seller agrees not to cancel or withdraw said documents, except upon the express written consent of Buyer. X. BUYER COSTS Buyer shall be responsible for all document recording fees, the payment of Buyer's attorney's fees, entitlement fees, permit fees and all loan related costs, the cost of the survey and the cost of all inspections, tests, and studies and any of Buyer's obligations under this Agreement. XI. SELLER COSTS Seller shall pay all real estate taxes and assessments, which are now due or become due prior to the Closing Date. Taxes not yet due and payable at the Closing Date shall be prorated on a per diem basis as of 11:59 p.m. of the same day preceding the Closing Date on the basis of the calendar year for which the same are levied or assessed. If the rate of any such taxes or assessments shall not be fixed before the Closing Date, the adjustment thereof at Closing shall be upon the basis of one hundred percent of the taxes for the preceding calendar year, and there shall be no later re- proration. Any other adjustment, including adjustments for rents, profits, and the like, shall be allowed and apportioned as of the Closing Date. Seller shall be responsible for any rollback taxes, transfer taxes or other assessments due and all accrued water, se r, and other utility charges, if an}; as of the Closing Date XII. BROKER The Seller shall pay Sherman & Hemstreet Real Estate Company and Blanchard & Calhoun Commercial Corporation a combined brokerage fee of ten (10 %) percent of the gross sales price herein at Closing. The Broker in this transaction represents the Buyer and not the Seller. Broker has rendered a valuable service and will be paid a commission only in the event that the Property is sold. XIII. MODIFICATION This Agreement constitutes the entire agreement between the parties with respect to the transaction contemplated herein and no amendment or modification shall be effective unless it is in writing and signed by Seller and Buyer. Buyer may assign this Agreement. XIV. LAWS This Agreement shall be governed by and construed in accordance with the laws of the State Georgia, which is where the Property is located. Venue shall be in Richmond County, Georgia. XV. TIME The parties hereto agree that time is of the essence with respect to this Agreement. XVI. ESCROW Escrow Agent shall be required only to retain and deliver the Earnest Money as herein provided and shall incur no liability so long as Escrow Agent has acted without negligence and in good faith. XVII. MISCELLANEOUS A. SEVERABILITY If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provisions hereof. B. CAPTIONS Paragraph heading throughout this Agreement are solely for the convenience of the parties and are intended to have no legal meaning in and of themselves. Where the context requires, the masculine, feminine and neuter genders may be substituted for one another, as may be the singular for the plural number, and vice versa. C. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and shall inure to the benefit of the parties and their heirs, successors and assigns. D. PREVAILING PARTY If any litigation is initiated or defended by any party to this Agreement relating to this Agreement or the subject matter hereof, the party prevailing in such litigation shall be entitled to recover all costs and reasonable attorneys' fees actually incurred at customary hourly rates in connection therewith. The provisions of this Subparagraph shall survive the Closing coextensively with all other surviving provisions of this Agreement. E. COUNTERPARTS This Agreement may be executed in counterparts, each of which shall be deemed an original. F. WAIVER Any waiver of a default or provision under this Agreement must be in writing. No such waiver constitutes a waiver of any other default or provision concerning the same or any other provision of this Agreement. No delay or omission by a party in the exercise of any of its rights or remedies constitutes a waiver of (or otherwise impairs) such right or remedy. A consent to or approval of an act does not waive or render unnecessary the consent to or approval of any other subsequent act. G. THIRD PARTY BENFICIARIES Nothing in this Agreement is intended to confer any rights or remedies on any person or entity other than the parties to this Agreement and their respective permitted assignees. H. 1031 TAX DEFERRED EXCHANGE Buyer and Seller agree to cooperate with one another in the event that either party elects to perform a 1031 exchange, including execution of such documents as may be reasonably necessary to effectuate the same, provided that the accommodating party does not incur any additional expense or liability and the Closing is not delayed. I. DEADLINES If the time period by which any acts or payments required hereunder must be performed or paid expires on a Saturday, Sunday or legal holiday, then such time period shall be automatically extended to 5:00 p.m. of the next business day. J. REMEDIES 1. If Seller has failed to perform any of its undertakings hereunder by the date designated herein for such performance, Buyer may extend the required date of performance, or pursue any or all equitable remedies of law including but not limited to specific performance. If Seller breaches any of its covenants, agreements, representations or warranties contained in this Agreement, or if said representations and warranties are not true and correct on the date hereof and on the Closing Date, or if Seller fails to perform any affirmative obligation or consummate the sale contemplated herein for any reason other than Buyer's default, and Buyer has given Seller ten (10) days written notice specifying the exact nature of such breach or failure, and if such breach or failure has not been cured within ten (10) days after the date such notice was delivered, Buyer may in addition to pursuing all remedies available to Buyer elsewhere in this Agreement: (i) declare this Agreement terminated, in which event all Deposits shall be returned to Buyer and thereafter all rights and obligations of the parties hereunder shall be terminated; or (ii) enforce specific performance of Seller's obligations under this Agreement including full legal and equitable remedies, or (iii) close on the purchase with the defect. 2. If the sale contemplated hereby is not consummated by reason of the default of Buyer, the Deposits shall be paid to and retained by Seller as Seller's full, complete, and final liquidated damages, and as the sole and exclusive legal and equitable remedy or any other remedy rights for such default by Buyer. Further it is acknowledged and agreed that the damages of Seller in such event would be difficult or impossible to determine and that the amount of the Deposit is a fair and reasonable estimate of such damages and is not a penalty. The payment of said liquidated damages, therefore, shall constitute Seller's sole remedy against Buyer and shall be in lieu of the exercise by Seller of any other legal or equitable right or remedy which Seller may have against Buyer as a result of Buyer's default. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall be entitled to written notice of and a reasonable opportunity to cure any default under this Agreement; provided, however, that a reasonable time for the curing of any default which can be cured solely by the payment of money and /or by the execution and delivery of any document shall be at least ten (10) business days after receipt of notice of such default, and that in no event shall the latest permitted date for Closing hereunder be extended by reason of the operation of this provision. 3. The exercise (or failure to exercise) of any one of Buyer's rights or remedies under this Agreement shall not be deemed to be in lieu of, or a waiver of, any other right or remedy contained herein. K. CONDEMNATION If condemnation proceedings are commenced against the Property or any portion thereof, Buyer shall have the right to (i) negotiate and sell the condemned property to the appropriating authority and Buyer shall be entitled to all proceeds so long as Buyer closes on subject property and Seller shall convey subject to such proceedings and receive the Purchase Price, or (ii) Buyer may cancel this Agreement, in which event Buyer shall be entitled to recover the Deposits and each party shall be released from all further obligations and liability hereunder. L. CONSTRUCTION OF AGREEMENT The parties hereto hereby acknowledge and agree that (i) each party hereto is of equal bargaining strength, (ii) each such party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with its own independent legal counsel, and such other professional advisors as it has deemed appropriate, relating to any and all matters contemplated under this Agreement, (iv) each such party and its counsel and advisors have reviewed this Agreement, (v) each such party has agreed to enter into this Agreement following such review and the rendering of such advice and (vi) any rule of construction to the effect that ambiguities are to be resolved against the drafting parties shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. M. SURVIVAL This Agreement includes all representations and warranties shall be deemed remade at the Closing and shall survive the Closing. N. SPECIAL STIPULATIONS Special Stipulations, when in conflict with this Agreement, shall control. Any additions are incorporated as an addendum and made a part hereof. XVIII. NOTICE IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate on the day and year written below with all notices to be in writing and delivered U.S. Mail or overnight carrier or fax or scanned & emailed to the following address below. AM As to Seller: Name: Company: Address: 0 /State /Zip: Phone: Fax No.: Cell: E -mail: Mayor Deke Copenhaver Augusta, Georgia 530 Greene Street Augusta, GA 30901 706 - 821 -1833 706 -821 -1835 knixon @augustaga.gov As to Buyer: Name: Company: Address: 1< City /State /Zip: Phone: Fax No.: Cell: E -mail: Alonzo P Boardman Jr. 15 8th Street P. O. Box 850 Augusta, GA 30903 706 - 722 -5561 706 - 724 -2582 706 - 825 -4230 mebcop @aol.com WITNESS OR ATTEST: WITNESS OR ATTEST: By: Its: SELLER: BUYER: BROKER: Its: Licensee 64 2 6,4 9 Member ) 44 t ir az 10/02/1 Date o xecution Date of Execution k■ o 2 SPECIAL STIPULATIONS Limited warranty • : - d or other instrument shall contain a ri . • . ugusta, Georgia to purchase the Property, • he same consideratio - .aid at closing, if Buyer or its successor, does not begin cons on o . - - property within three (3) years of closing. For purposes of the right to - o . c as- • struction shall be defined as the start of installation of found. • Incorporated ' em by reference are all contract provision 104 e Augusta Code, revised 2012 uired by Section 1 -10- EXHIBIT A Description of Property All that tract or parcel of land, with improvements thereon situate, lying and being in the 1269 District, G.M., Richmond County, Georgia, about four miles from the City of Augusta, containing eight (8) acres, more or less, on the North side of Washington Road, fronting on said Washington Road a distance of two hundred (200) feet and extending back between parallel lines, approximately at right angles to said road, a distance of one thousand seven hundred seventy -four (1774) feet, more or less, BOUNDED: On the North by an old fence separating it from property now or formerly of Cadden; on the East by property now or formerly of Morton; on the South by Washington Road; and on the West by property now or formerly of Cadden. RESERVED AND EXPRESSLY EXCLUDED herefrom the following described property, to wit; All that lot or parcel of land, with improvements thereon, situate, lying and being in the 1269 District, Richmond County, Georgia, being the Southeastern portion of the property hereinabove described, and more particularly described as follows; Beginning at a point on the North side of Washington Road, which point is five hundred seventy -five (575) feet West of the intersection of Washington Road and Azalea Avenue, from that point extending North 35° East for a distance of four hundred twenty -six and sixty -four one - hundredths (426.64) feet, more or less, along an old fence and hedgerow, to the old Warren Cemetery Reservation; thence turning and extending North 32 West for a distance of seventy - two and seventy -one one - hundredths (72.71) feet to an iron, thence turning and extending South 35 West for a distance of one hundred eighty -nine and nine one - hundredths (189.09) feet to an iron, thence turning and extending South 3 38' West for a distance of seventy -one and one one - hundredths (71.01) feet to an iron, thence turning and extending South 35 West for a distance of two hundred four (204) feet to an iron on the North side of Washington Road, thence turning and extending South 52 28' East along the North side of Washington Road to the point of beginning. BOUNDED: On the North by the Warren Cemetery Reservation; on the East by property now or formerly of Morton; on the South by Washington Road; and on the West by the property hereinabove described. Subject to a right -of -way and easement described as follows: Beginning at an iron stake on the North side of the Washington Road, which iron stake is at a point five hundred seventy -five (575) feet West of the Northwest corner of the intersection of Washington Road and Azalea Avenue, and running thence in a Northerly direction North 35 0' East four hundred twenty - six and sixty -four one - hundredths (426.64) feet along an old fence and hedgerow to an iron stake at a corner of the old Warren Cemetery, thence turning and running in a Northerly direction 32 0' West seventy -two and seventy -one one - hundredths (72.71) feet to an iron stake, thence turning and running in a Southerly direction South 35 0' West fifty -two and five one - hundredths (52.05) feet, thence turning at an inside angle of 90 and running in an Easterly direction thirty -seven (37) feet to a point, thence turning at an outside angle of 90 and running in a Southerly direction South 35 0' West four hundred one and sixty -seven one - hundredths (401.67) feet to an iron stake on the North side of the Washington Road, thence turning and running in an Easterly direction along the North side of the Washington Road South 52° 28' East thirty (30) feet to the point of beginning. The property reserved from this conveyance and the easement hereinabove described are shown and designated on a plat made by Hall -Grow, Inc., dated September 8, 1956, and attached to the original deed and recorded in said Clerk's Office in Realty Book 23 -X, Page 338. Map & Parcel No. 013 -3- 094 -00 -0 (2625 Washington Road)