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HomeMy WebLinkAbout05-14-25 WS - ContinuedATT#1 05-14-25 AGREEMENT OF PURCHASE AND SALE between CITY OF DUNN, NC, as the Purchaser and JERRY RAY BAYLES, SR. AND WIFE, FAYE P. BAYLES as the Seller Dated May 14, 2025 AGREEMENT OF PURCHASE AND SALE THIS -AGREEMENT OF PURCHASE AND SALE (L6Agreement") is made and entered into this 14'' day of May, 2025 (the "Effective Date") by and between Jerry Ray Bayles, Sr. and. wife, Faye P. Bayles, citizens and residents of North Carolina ("Seller"), and City of Dunn, North Carolina, a North Carolina municipal corporation ("Purchaser"). WITNESSETH: WHEREAS, Seller is the fee simple owner of the Property (as defined in Section 1 below); and WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller, all of Seller's fee interest in and to the Property, upon the terms and conditions hereinafter stated. NOW, THEREFORE, for and in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto do hereby mutually covenant and agree as follows: Section 1. Agreement to Purchase and Sell. Purchaser agrees to purchase and Seller agrees to sell, subject to and upon the terms and conditions of this Agreement, the following -described property (the "Property"): (a) All of Harnett County Parcel Identification Numbers 0597-06-7188.000 (containing 71.67 acres more or less), 0597-04-7430.000 (containing 36.06 acres more or less), 0597- 34-3652.000 (containing 25.50 acres more or less), 0597-44-1442.000 (containing 14.43 acres more or less), 0597-45-0069.000 (containing 11.99 acres more or less), 0597-25- 8811.000 (containing 16.00 acres more or less) and 0597-26-0222.000 (containing 11.44 acres more or less). During the Due Diligence and Inspection Period, Purchaser, at its expense, shall cause to be prepared a survey of the Property . (the "Survey") and the parties agree to use the Survey description for the Property for all deeds or other conveyance documents required by this Agreement; (b) All (i) strips, gores, easements, rights of way, reservations, privileges, licenses, appurtenances and other rights and benefits, if any, pertaining to or accruing to the benefit of such land; (ii) all riparian and other water rights, if any, in and to such properties; (iii) rights to lands underlying any adjacent roads, and other tenements, hereditaments and appurtenances, and (iv) all of Seller's rights in and to all general intangible rights pertaining to the ownership and/or operation of the land (collectively, the "Land"); and (c) All improvements located on the Land, if any, together with all fixtures, facilities, systems and installations owned by Seller therein (collectively, the "Improvements") subject to the Permitted Exceptions (as defined herein). Section 2. Purchase Price and Earnest Money Deposit. The purchase price (the "Purchase Price") for the Property is FIVE MILLION AND No/100ths DOLLARS ($5,000,000.00). Within five (5) business days after the full execution of this Agreement, Purchaser shall deposit the sum of FIVE THOUSAND and No/ 100ths DOLLARS ($5,000.00) (the G6Earnest Money") with Pope Law Group, P.A. (the L6Escrow Agent"). Within five (5) business days after the full execution of this Agreement, Purchaser, shall pay directly to the Seller the sum of TEN THOUSAND AND No/100ths DOLLARS ($10,000.00) (the "Due Diligence Fee"). Both the Earnest Money and Due Diligence Fee shall be applied to the Purchase Price at Closing. On or before the Closing Date (as defined herein), the balance 0 of the Purchase Price shall be deposited by Purchaser by bank wire of same -day funds with the Escrow Agent, subject to all prorations and adjustments as set forth in this Agreement and paid to Seller at Closing (as defined herein). The Earnest Money shall be held and dispersed by Escrow Agent according to the provisions of Section 3. Section 3. Due Diligence and Inspection Period. (a) Within five (S) business days following the Effective Date, Seller shall deliver to Purchaser the following: (i) Copies of any . ALTA or other surveys (prepared by a duly licensed surveyor), site plans or site assessments of the Property, in the possession of, or developed by, Seller; (ii) Copies of any leases, license agreements, services agreements, or occupancy agreements, if any, affecting the Property (the "Other Agreements"); (iii) Permits, warranties and other certificates; (iv) Copies of any documents relating to any litigation or other disputes affecting, or which may affect, the Property; (v) Any notices of violations of any law, governmental regulation or order of any governmental agency; (vi) Copies of any licenses, permits, and pending applications to governmental entities with respect to the Property, including, but not limited to utility plans; (vii) All studies of geotechnical and soil conditions, compaction and environmental conditions of the Property, including without limitation, environmental reports and reports regarding the condition of any buildings or structures on the Property; and (viii) Copies of any title insurance policies or title opinions in the possession of Seller. (b) Upon the Effective Date Purchaser shall have the right to obtain a Phase I environmental site assessment for the Property and at the Purchaser's discretion, it may obtain a Phase II environmental site assessment of the Property. (c) The materials referred to in subsections Sections 3(a) and 3(b) are hereinafter collectively referred to as the G6Due Diligence Materials." (d) From and after the Effective Date until the Closing, and upon reasonable notice, Purchaser and Purchaser's representatives, architects, engineers, consultants and agents shall be permitted. to conduct reasonable inspections of the Property, at Purchaser's sole cost and expense, including but not limited to tests, borings 3 surveys, studies, inspections, investigations and interviews of persons familiar with the Property and to evaluate the Property and to obtain any necessary zoning variances and/or zoning approvals and/or special use or other permits needed or desired by the Purchaser for its intended use of the Property from applicable municipal authorities (to the extent applicable. Seller shall cooperate, at no expense to Seller with any rezoning, special use or other permit requests submitted by Purchaser. (e) Notwithstanding the foregoing, Purchaser shall have a period of time commencing on the Effective Date and continuing until 5:00 p.m. (Eastern Time) on the date that is one hundred eighty (180) days after the Effective Date (the 'GDue Diligence and Inspection Period") within which to determine (i) whether the zoning of the Property is in compliance with Purchaser's intended use of the Property; (ii) whether the results of reports from engineers, geologists, hydrologists ore other professionals are acceptable to Purchaser, including, but not limited to Geotechnical reports; (iii) to determine by title examination and survey review, whether title to the Property is acceptable to Purchaser; (iv) to obtain a binding commitment or financing of the purchase of the Property on terms and conditions acceptable to Purchaser; (v) to obtain all necessary permits or other approvals from appropriate government authorities for Purchaser's intended development of the property as a municipal water plant, including, but not limited to, driveway permits, stormwater permits and building permits, as determined in the sole and absolute discretion of the Purchaser; and (vi) determining if the transaction contemplated by this Agreement is acceptable to Purchaser. (f) Purchaser shall have two (2) thirty (30) day options to extend the Due Diligence and Inspection Period (each an "Extension Option"). In order to exercise each Extension Option, Purchaser shall give written notice to Seller on or before the last day of the Due Diligence and Inspection Period as the same may be extended. If the Purchaser exercises the first extension or second extension of the Due Diligence and Inspection Period within five (5) business days of exercising each such respective option, Purchaser shall deposit TEN THOUSAND AND No/100ths DOLLARS ($10,000.00) with the Escrow Agent, which shall become a part of the Earnest Money. (g) Upon expiration of the Due Diligence and Inspection Period and the satisfaction of all contingencies (as described herein), the Earnest Money shall be deemed non-refundable, provided however, in the event that Closing occurs, the Earnest Money shall be applied against the Purchase Price at Closing. (h) If Purchaser's investigations of the Property and review of the Due Diligence Materials reveals any matters which would make the Property or the transaction contemplated by this Agreement unacceptable to Purchaser then, in Purchaser's sole and absolute discretion, Purchaser may terminate this Agreement by delivering written notice of such termination to Seller prior to the expiration of the Due Diligence and Inspection Period or any extension thereof. In the event of a termination pursuant to this Section 3(h), the Escrow Agent shall release the Earnest Money to Purchaser and Purchaser and Seller shall be relieved and discharged of any further liability or obligation under this Agreement except for obligations which expressly survive termination. M (i) In the event this Agreement is terminated and Closing does not occur, Purchaser shall, at its sole cost and expense, promptly restore any physical damage or alteration of the physical condition of the Property that results from any inspections conducted by or on behalf of Purchaser to substantially the same conditions existing prior to such inspections. The provisions of this Section 3(i) shall survive the termination of this Agreement. (j) The Due Diligence Fee is a negotiated amount paid by Purchaser to Seller with this Agreement for Purchaser's right to terminate the Agreement for any reason or no reason during the Due Diligence and Inspection Period. It shall be the property of Seller upon the Effective Date and shall be a credit to Purchaser at Closing. The Due Diligence Fee shall be non-refundable except in the event of a material breach of this Agreement by Seller. Purchaser and Seller each expressly waive any right that they may have to deny the right to conduct Due Diligence or to assert any defense as to the enforceability of this Agreement based on the absence or alleged insufficiency of the Due Diligence Fee, it being the intent of the parties to create a legally binding contract for the purchase and sale of the Property without regard to the amount of the Due Diligence Fee. Section 4. Deed and Title Exceptions. Seller covenants that it is the owner in fee simple of the Property and that, at the Closing, it will convey to Purchaser, marketable, fee simple title to the Property by General Warranty Deed, subject only to (i) rights -of -way and easements of record, (ii) current zoning ordinances; (iii) any applicable statute, ordinance or regulations of the United States, the State of North Carolina, or any other governmental or quasi-judicial entity having jurisdiction over the Property ("Governmental Entity" or "Governmental Entities") or any part thereof, and includes all development approvals or agreements (and conditions thereof) given by all Governmental Entities having jurisdiction over the Property (collectively the "Legal Requirements"), and (iv) ad valorem property taxes for the year in which closing occurs (to be pro -rated as provided herein). All of the foregoing are deemed to be "Permitted Title Exceptions79 under this Agreement. Prior to the expiration of the Due Diligence and Inspection Period, Purchaser shall cause a duly licensed North Carolina title company of Purchaser's choosing (the "Title Company") to issue a title commitment naming Purchaser as- the proposed insured (the "Title Commitment"). Title to the Property shall be conveyed in fee simple, marketable, indefeasible, and good of record and in fact, and insurable as such in an amount equal to the Purchase Price by the Title Company, at regular rates, on an ALTA Form Owner's Policy acceptable to Purchaser, free and clear of any and all liens, defects, encumbrances, occupancies, leases, easements, covenants, restrictions, or other matters whatsoever, whether recorded or unrecorded, expressly excepting Permitted Title Exceptions. Purchaser shall notify Seller, in writing, of its title objections, if any, on or before the expiration of the Due Diligence and Inspection Period and Seller shall have the right, within ten (10) days from receiving such notice, to elect: (i) to cure the defect(s) at Seller's cost and expense, or (ii) not to cure such defect. Seller's failure to notify Purchaser within the stated time frame that it intends to cure shall be deemed to be Seller's notice to Purchaser that it elects not to cure Purchaser's objections to title. If Seller elects not to cure any defect, Purchaser, by delivering notice to Seller within five (5) business days following Seller's actual or deemed notice to Purchaser that it elects not to cure the defect, may either: (1) waive the defect without a reduction in the Purchase Price; or (ii) terminate this Agreement, whereupon the Earnest Money shall be returned to Purchaser and the parties hereto shall not have any further obligation or liability to the other with respect to the transactions contemplated by this Agreement except for those matters that expressly survive any termination hereof. If Seller elects to cure, Seller shall do so within thirty (30) days after electing to cure. 5 Purchaser shall not be required to object to monetary liens or governmental assessments encumbering the Property and the parties agree that such items will be released at Seller's expense as of the Closing. In addition, Seller shall be required to satisfy the requirements applicable to Seller set forth in Schedule B-I of the Title Commitment, including, without limitation, the release, at or prior to the Closing, of all monetary liens encumbering the Property and may apply sale proceeds therefor. If the Title Commitment is amended or updated to reflect new or, additional items, then Purchaser shall have ten (10) business days after its receipt of the amended or updated Title Commitment to deliver to Seller Purchaser's objections to any new matter(s). If Purchaser fails to deliver objections to any amended or updated Title Commitment within the time period provided herein, then Purchaser shall be deemed to have waived any objection to any new exceptions or requirements contained therein, provided however, that any new matter consisting of a lien, encumbrance or encroachment shall be deemed automatically objected to by Purchaser and Purchaser shall not be -deemed to have waived any objections to such matter(s). Section 5. Closing. Subject to the provisions of this Agreement, the closing of the purchase and sale transaction contemplated by this Agreement (the "Closing") shall occur on the date (the 66Closing Date") which is sixty (60) days following the later of (i) the expiration of the Due Diligence and Inspection Period (or any extension thereof), or (ii) satisfaction or waiver of the conditions to Closing set forth in Section 7 below, in the offices of the Purchaser's attorney, unless another time or place of Closing is mutually agreed to by the parties in writing. Seller shall deliver possession of the Property to Purchaser at Closing. In the event Purchaser completes its inspection and evaluation prior to the expiration of the Due Diligence and Inspection Period (or any extension thereof), Purchaser may schedule Closing at any time by providing at least seventy-two (72) hours prior written notice to Seller and the Escrow Agent. In the event any institutional equity investor or debt lender of Purchaser is unable to close and fund within the sixty (60) day period, the Closing shall be extended on a day by day until such time as they can close and fund, not to exceed an additional thirty (30) days. Section 6. Closing Documents. (a) At Closing, Seller shall execute, acknowledge (if applicable) and deliver the following documents to the Purchaser's attorney Agent (collectively, the "Seller Closing Documents"): (i) A general warranty deed (the "Deed"), conveying marketable title in fee simple to the Property to Purchaser free and clear of liens and encumbrances, but subject to the Permitted Exceptions; (ii) A "non -foreign" affidavit reasonable acceptable to Purchaser; (iii) An owner's affidavit in the form reasonably acceptable to Purchaser; (iv) Any real estate transfer declaration required by the state, county and municipality in which the Property is located; (v) Evidence of -Seller's capacity and authority for the Closing of this transaction; 0 (vi) A closing statement showing the Purchase Price and any adjustments thereto; (vii) An Affidavit of Understanding and Indemnity Agreement and Hold Harmless Agreement Regarding Computer Data Migration (VCAP to E- Court Odyssey Portal); and (viii) All other documents necessary to close this transaction in accordance with the terms of this Agreement and such other documents as are required by the Title Commitment or the Purchaser's attorney to be furnished by Seller. (b) At Closing, Purchaser shall deliver the Purchase Price, less applicable credits, and shall execute, acknowledge (if applicable) and deliver the following documents to the Purchaser's attorney, for delivery to Seller (collectively, the "Purchaser Closing Documents"): (i) A closing statement showing the Purchase Price and any adjustments thereto; (ii) Evidence of Purchaser's capacity and authority for the Closing of this transaction; (iii) An Affidavit of Understanding and Indemnity Agreement and Hold Harmless Agreement Regarding Computer Data Migration (VCAP to E- Court Odyssey Portal); and (iv) All other documents necessary to close this transaction in accordance with the terms of this Agreement and such other documents to be furnished by Purchaser as are required by the Title Commitment. Section 7. Conditions to the Closing. (a) Purchaser shall not be obligated to close the purchase and sale transaction contemplated by this Agreement until all of the following conditions have been satisfied or waived: (i) Seller shall have executed, acknowledged and delivered the Seller Closing Documents to the Purchaser's attorney; (ii) The Purchaser shall have received an irrevocable commitment or pro forma policy (the "Final Commitment") for the issuance of an owner's policy of title insurance for the Property (the "Title Policy", insuring title to the Property in the name of Purchaser in an amount equal to the Purchase Price and containing only Permitted Exceptions and otherwise consistent with the Title Commitment); 7 (iii) All representations, warranties and covenants of Seller set forth herein shall have been true and correct in all material respects when made and as of the Closing Date; (iv) Purchaser shall have received evidence, which is reasonably satisfactory to Purchaser, authorizing the sale.of the Property by Seller; (v) The Survey shall have been completed and recorded; (vi) Seller, at its sole cost and expense, has removed or has obtained written releases of all easements, right of ways, encroachments, and other similar restrictions, as noted by Purchaser during the Due Diligence and Inspection Period that Purchaser deems, in its sole and absolute discretion, as limiting Purchaser from perpetually conducting its business operations on the Property; (vii) Any Other Agreements, if any, which encumber the Property, shall have been terminated by Seller prior to the Closing Date, unless included in the Permitted Exceptions; (viii) Purchaser shall have obtained appropriate zoning and/or special use or other permits necessary from any Governmental Entity for its intended use of the Property; and (ix) All conditions and contingencies to Purchaser's obligations to close have been satisfied or waived by Purchaser. (b) Seller, shall not be obligated to close until all of the following conditions have been waived by Seller or satisfied: (i) Purchaser shall have delivered the Purchase Price to the Purchaser's attorney for Closing for the purchase of the Property; (ii) Purchaser shall have executed,. acknowledged and delivered Purchaser's Closing Documents to the Purchaser's attorney; and (iii) All representations, warranties and covenants of Purchaser set forth herein shall have been true and correct in all material respects when made and as of the Closing Date. (c) The purchase of the Property by Purchaser is expressly contingent on the following: (i) Purchaser's satisfaction with all inspections, investigations and other matters identified in Section 3 and Purchaser having obtained all development or other permits necessary for Purchaser's development of the Property for its intended use during the Due Diligence and Inspection Period;and n (ii) Seller being able to deliver fee simple title to the Property free from any and all liens and lawsuits. Section 8. Proration. Except as otherwise provided herein, all obligations with respect to the Property attributable to days preceding the Closing Date shall be allocated to Seller and all obligations with respect to the Property which are attributable to days from and after the Closing Date (including the Closing Date) shall be allocated to Purchaser. Without limitation upon the foregoing, the following items shall be adjusted or prorated between Seller and Purchaser as follows: (i) any taxes which become due or which are levied as a result of a change in the use of the Property in implementing Purchaser's plan for the development of the Property shall be paid by Seller, whether accrued before or after Closing; (ii) all assessments for improvements completed prior to Closing, if any, which have been assessed prior to Closing, shall be paid by Seller prior to the Closing Date and all other assessments shall be paid by Purchaser; and (iii) any public infrastructure or improvements required by authorities having jurisdiction as a result of Purchaser's proposed development of the Property, and any assessments related thereto, either general or special, shall be the sole responsibility of Purchaser, whether required, levied or assessed before or after Closing, except for Seller responsibilities expressly set forth in this Agreement, including, but not limited to those matters set forth in Section 7. Real estate taxes shall be apportioned pro rata on a per diem basis as of the date of Closing. Section 9. Condemnation. Seller agrees to give Purchaser prompt notice of any actual or threatened taking or condemnation of all or any portion of the Property. If, prior to the Closing, there shall occur a taking or condemnation of all or any portion of the Property, Purchaser shall have the right to terminate this Agreement by written notice delivered to Seller within ten (10) days after Purchaser has received notice from Seller of that event, in which event (i) the Earnest Money shall be released to Purchaser and neither party shall have any further rights or obligations under this Agreement except for obligations which expressly survive termination. If Purchaser does not so timely elect to terminate this Agreement, then the Closing shall take place as provided herein; provided, Seller shall assign to Purchaser at the Closing all interest of Seller in and to any condemnation awards which may be payable to Seller on account of that event. Section 10. Representations of Seller. Seller represents and warrants to and covenants with Purchaser as follows: (a) Seller has authorized the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Seller is the sole legal and equitable owner of record and holds indefeasible, fee simple title to the Property and Seller has the right to convey the same to Purchaser at Closing. (b) There are no other contracts for the sale of the Property, or options to purchase, rights of first offer, rights of first refusal or other instruments, which affect or relate to the Property and which would require Seller to convey all or a portion of the Property. (c) Seller has received no written notice of, and to Seller's actual knowledge there are no actions or proceedings pending with respect to the Property and no actions or proceedings pending against Seller, which in any way materially and adversely affects the Property, or Seller's ability to perform under this Agreement, as the case may be. 9 (d) Seller has received no written notice from any Governmental Authority of any proposed condemnation of any portion of the Property. (e) Seller has received no written notice of, and to Seller's actual knowledge, there are no liens for governmental or private improvements or special assessments, which are either pending levy or are currently levied against the Property or any portion thereof. (f) Seller has received no notice of, and to Seller's actual knowledge, there are no mechanic's, materialmen's or other liens currently filed against the Property or any portion thereof. (g) To Seller's actual knowledge, except as disclosed in writing by the Seller to the Purchaser, the Property is in material compliance with Environmental Law (as hereinafter defined), and Seller has not received any written notice of violation issued pursuant to any -Environmental Law with respect to the Property or any use or condition thereof. For purposes of this Agreement, the term "Environmental Law" means the Comprehensive Environmental Response, Compensation and Liability Act of -1980, 42 U.S.C. Section 9601 et seq., the Resource Conversation and Recovery Act of 1976, 42 U.S.C. Section 6901, et seq., the Clean Water Act, 33 U.S.C. Section 1251 et seq., The Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq., The Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251., et seq., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal, presence, cleanup, transportation or release or threatened release into the environment of any Hazardous Substance. The term "Hazardous Substance" means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, (ii) petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, (viii) toxic mold, or (ix) radioactive materials. (h) Seller has not, to its actual knowledge, engaged in any Environmental Activity (as hereinafter defined) respecting the Property in material violation of any applicable Environmental _ Law. For purposes of this Agreement, "Environmental Activity" means any actual, proposed or threatened storage, holding, existence, release, emission, discharge, generation, processing, abatement, removal, disposition, handling or transportation of any Hazardous Substance from, under, into or on the Property or otherwise relating to the Property or the use of the Property, or any other activity or occurrence that causes or would cause any such event to exist-. (i) Seller is not a "foreign person" as that term is defined in Section 1445 of the Internal Revenue Code and Seller shall execute an affidavit to such effect in the form provided by Purchaser. 10 (j) To Seller's knowledge, there exists no violation of any law, regulation, orders, or requirements issued by any governmental agency or authority, or action in any court on account thereof, against or affecting the Property. Seller has received no written notice and has no actual knowledge that the Property or its use or operation is not in compliance with applicable building codes, zoning, subdivision and land -use laws and any local, state or federal laws, regulations, codes or ordinances. (k) To Seller's knowledge, the Property has not been used as a dumpsite or landfill for trash or organic materials and no construction debris or other debris (including, without limitation, rocks, stumps, or concrete) are buried on the Property. (1) To Seller's knowledge, there are no buried fuel tanks within the Property. (m) To the best of Seller's knowledge, and except as expressly communicated to Purchaser in writing on or before the Effective Date, no grave sites are located upon the Property; no portion of the Property has been designated by any governmental body or private organization as having historic or archeological significance or deserving .of historic landmark status; and the Property has not been identified by any governmental body or private organization as a habitat for any endangered or rare species of wildlife or vegetation worthy of special protection. (o) There are no bankruptcy, insolvency, rearrangement or similar actions or proceedings, whether voluntary or involuntary, pending or, to the best of Seller's knowledge, threatened against Seller. (p) Seller is not in default under the provisions of any contract, deed of trust or other encumbrance, lien or restriction related to the Property. (q) Seller has delivered to Purchaser all Due Diligence Materials pursuant to Section 3 above and such delivered Due Diligence Materials are complete and unaltered copies of the Due Diligence Materials. Seller agrees to reimburse, indemnify, defend and hold harmless the Purchaser and its successor and assigns, from and against all liability, damages and losses whatsoever, including reasonable attorneys' fees resulting from any misrepresentation made by Seller herein or in any document, certificate or exhibit given or delivered in connection herewith. This obligation is in addition to any remedies of Purchaser set forth in Section 15 of this Agreement. The foregoing representations, warranties and obligations shall survive Closing and shall not merge with the deed of conveyance. Section 11. Representations of Purchaser. Purchaser represents and warrants to and covenants with Seller as follows: (a) There are no actions, proceedings or investigations pending involving Purchaser which question the validity of this Agreement or adversely affect Purchaser's 11 ability to consummate the transactions contemplated by this Agreement. (b) The execution, delivery and performance by Purchaser of this Agreement will not violate, or constitute a default under, any provision of any agreement or instrument to which Purchaser is a party or by which Purchaser or any of its property is bound. Section 12. Notices. All notices given or delivered under this Agreement shall be in writing and shall be validly given when (i) hand -delivered by sender; (ii) sent by courier or express service guaranteeing overnight delivery; (iii) sent by certified mail or registered mail, return receipt requested; or (iv) by electronic mail, with original being sent the same day as otherwise provided above, addressed as follows: If to Seller: Jerry Ray Bayles, Sr. and wife, Faye P. Bayles Post Office Box 343 Erwin, North Carolina 28339 Email: If to Purchaser: City of Dunn Attn: Billy R. Godwin, Jr. 401 E. Broad Street Dunn, North Carolina 28334 Email: bgodwin@dunn-ne.org With a copy to: (Which shall not constitute notice) Pope Law Group, P.A. Attn: P. Tilghman Pope 403 W. Broad Street Dunn, North Carolina 28334 Email: tilghman@plgpa.com If to Escrow Agent: Pope Law Group, P.A. Attn: P. Tilghman Pope 403 W. Broad Street Dunn, North Carolina 28334 Email: tilghman@plgpa.com Or such other person or address which Seller or -Purchaser shall have. given upon notice as herein provided. Notices given as described herein shall be deemed delivered on the day immediately following the date such notices are sent. Section 13. Assignment. No party shall assign this Agreement or any , of its rights and obligations hereunder without the prior written consent of the other parties; provided however, that Purchaser may, upon notice to Seller, assign this Agreement to an affiliate or wholly owned subsidiary of Purchaser. No assignment shall release a party from the obligation to fully perform all provisions of the Agreement. 12 Section 14. 1031 Exchange. Either Seller or Purchaser, through the use of a qualified intermediary, may transfer or acquire the Property, or a portion of interest therein, through a tax free exchange, deferred exchange or reverse exchange of real property pursuant to Section 1031 of the Internal Revenue Code; provided, however, (i) in no event shall any such exchange, or the exchanging party's inability to complete any such exchange, impair or otherwise affect the Closing, (ii) the non -exchanging party shall have no obligation or liability to the exchanging party or any other person or entity in any respect for any matters in connection with any such exchange other than payment of the Purchase Price as set forth herein in exchange for the conveyance to Purchaser fee simple title to the Property by warranty deed as required herein subject only to those matters permitted under this Agreement, (iii) Purchaser shall not be required to be vested in title to any property other than the Property, (iv) the exchanging party shall provide the non -exchanging party with at least three (3) days' notice prior to Closing of its intentions to close this transaction as an exchange; and (v) the exchanging party shall indemnify and hold the non - exchanging party harmless from and against any claims, actions, liability and expense in connection with each such exchange. This Section shall survive Closing. Section 15. Default and Remedies. (a) If Purchaser defaults under this Agreement and fails to cure such default within thirty (30). days of receipt of written notice of default from Seller, Seller may terminate this Agreement, whereupon the Earnest Money shall be promptly distributed to Seller as it sole remedy and liquidated damages for such default, the parties hereby acknowledging and agreeing that the amount of Seller's actual damages in such circumstance would be difficult, if not impossible, to determine, that the foregoing is a fair and reasonable estimate of such damages and not a penalty for such default. (b) If Seller defaults under this Agreement and fails to cure such default within thirty (30) days of receipt of written notice from Purchaser, Purchaser may either (i) seek specific performance of Seller's obligations under this Agreement, or (ii) by written notice to Seller, terminate this Agreement, whereupon the Earnest Money shall be promptly refunded to Purchaser and Seller shall pay to Purchaser all costs and expenses incurred by Purchaser in _its investigation of the Property and obtaining financing for the purchase of the Property. In addition, Purchaser may have and exercise any or all rights and remedies available for such breach including, without limitation, specific performance, curing such default and obtaining from Seller all costs thereof, including reasonable attorneys' fees or other damages. Section 16. Brokerage Commission. The parties acknowledge that no real estate agent, broker or company has been used in this transaction. Each party shall indemnify, defend and hold harmless the other party from and against any and all claims, loss, costs and expenses, including reasonable counsel fees, resulting from any claims that may be made against such party by any broker claiming a commission by, through or under the other party. This Section 16 shall survive Closing. Section 17. Transaction Costs. (a) Purchaser shall pay the following costs of this transaction: 13 (i) The cost of the Title Policy and all endorsements thereto, subject to 17(b)(ii) below; (ii) Recording fees for general warranty deed; (iii) The cost of the Survey; and (iv) Purchaser's attorney's fees and any other Purchaser expenses. (b) Seller.shall pay the following costs of this transaction: (i) Recording fee for any mortgage releases; (ii) Cost of endorsements required to remove encumbrances from title to which Purchaser objects; (iii) All property transfer taxes, deed stamp taxes and recording charges; (iv) Seller's attorney's fees and any other Seller expenses. Section 18. As Is Condition; Risk of Loss. The sale of the Property as provided for herein is made, except as otherwise expressly provided in this Agreement, on an "As Is, Where Is and With All Faults" basis, and Purchaser expressly acknowledges that, in consideration of the agreements of Seller herein, and except as otherwise expressly provided herein or in any documents delivered by Seller at Closing, Seller makes no warranty or representation, express or implied, or arising by operation of law, including, but not limited to, any warranty of condition, habitability, merchantability or fitness for a particular use or purpose in respect of the Property, except for the representations and warranties contained in this Agreement. Seller shall bear the risk of all loss or damage to the Property occurring on or before the Closing Date. Section 19. Seller's Obligations Pending the Closing. Seller shall, between the Effective Date and the Closing Date (or earlier termination hereof): (a) Maintain the Property in substantially the same manner as it is presently maintained, except for any obligations for improvements to the Property of Seller as set forth in this Agreement; (b) Maintain (or cause to be maintained) existing insurance coverage or its equivalent in force with respect to the Property; and (c) Not enter into any lease, mortgage, easement or any other encumbrance of the Property without the Purchaser's prior written consent, which consent may be withheld in the sole and absolute discretion of the Purchaser. 14 Section 20. Miscellaneous. (a) The provisions of this Agreement shall not be amended, waived or modified except by an instrument, in writing, signed by the parties hereto to be charged. In construing this Agreement, the singular shall include the plural, the plural shall include the singular and the use of any gender shall include every other and all genders. (b) All sections and descriptive headings of this Agreement are inserted for convenience only and shall not affect the construction or interpretation hereof. (c) This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but all counterparts shall together constitute one and the same instrument. (d) This Agreement, the preambles to this Agreement and the Exhibits thereto constitute the entire understanding between the parties with respect to the Property. (e) The waiver of any party of any breach or default by any other party under any of the terms of this Agreement shall not be deemed to be, nor shall the same constitute, a waiver of any subsequent breach or default on the part of any other Ply• (f) This Agreement shall be construed and enforced pursuant to the laws of the State of North Carolina. (g) If any provision hereof is for any reason unenforceable or inapplicable, the other provisions hereof will remain in full force and effect in the same manner as if such unenforceable or inapplicable provision had never been contained herein, unless such unenforceable provision materially affects any material covenants set forth herein. (h) In the event any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party will be entitled to recover reasonable attorneys' fees, court costs and expenses incurred in that action or proceeding, in addition any other relief to which such party or parties may be entitled. (i) Unless otherwise expressly provided herein, all periods for delivery or review and the like will be determined on a "calendar" day basis. If any date for performance, approval, delivery or Closing falls on a Saturday, Sunday or legal holiday (state or federal) in the state in which the Property is located, the time therefor will be extended to the next day which is not a Saturday, Sunday or legal holiday (a "business day"). 15 �) be y provision an contained herein by its nature and effect is requiredtoand it shall survive t g observed, kept or performed after a Closing, and for the benefit of the parties until fully observed, kept remain binding upon or performed. (k) From the Effective Date of this Agreement through Closing, or earlier will not permit it recpecttly . termination hereof,. Seller will not ('and representatives to) directly soli.cxt�ilinit ate, any of its affiliates lorthea ale of the Property to a directly or indirectly, encourage, negotiate or pursue, than. Purchaser. This restriction shall immediately cease upon .third party other the termination of this Agreement by Purchaser. (m) ofthis party Each art has participated fully in the negotiation and preparationAccordingly, of its own choosing. Agreement with full benefit if legal counsel not be more strictly construed again P arty this Agreement shall (n) but not limited to the All of the terms of this Agreement,s oelle including, shall be binding upon and coven representations., warranties and to the benefit of the parties to this Agr Bement and their successors, shall insure assigns, personal representatives, heirs and estate. (o) e Law scrow Agent is the attorney for the Purchaser. The fact that Pop all not The E g as Escrow Agent sinvolvingthis Group,- P.A. is holding the Earnest Money and acting P in matters preclude it from acting as Purchaser's attorney any Agreement or the Closing. (P) Purchaser, at its expense may prepare a Memorandum of Agreement andHabotht recordingwith theonly Seller and Purchaser shall execute the same Deeds. Such Memorandum greflect such County Register of to provide adequate notice of the existencereflect this information as necessary ot including the time period for Closing and shall n Agreement, Purchase Price. �. WITNESS WHERE+ OY) the parties hereto have caused this Agreement to be executed and delivered as of the date first set forth above. 6 4P It RCHSEW 9 By: Ahhe t: U1Q- wwt-/ Melissa Matti City Clerk 9019 050 \ ,( ©I� Cj 16 "Iffifggs�Q§9i X�tn (Z) Jdry Ray Befles, Sr. J i I •ye P. RECEIPT The undersigned Escrow Agent acknowledges receipt of the Earnest Money to be held as earnest money pursuant to the foregoing Agreement. as ESCROW AGENT: Pope Law Group, P.A. P. Tilghman Pope President 17