Purchase Agreement1997360 6110
% PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of L _ ,14 , 1997, by and
between the City of Kalispell, a municipal corporation, organized and existing under the laws
of the State of Montana, hereinafter CITY, and RSI, L.L.C., a Washington limited liability
company, being qualified to do business in Montana of which the sole initial Member is
Rosauers Supermarkets, Inc., with its principal place of business at W. 1815 Garland
Avenue, Spokane, WA 99205, hereinafter ROSAUERS.
WHEREAS, CITY is the owner of certain real property, described as follows:
1)'ALEY FIELD SUBDIVISION, NW 1/4, of Section 20,
Kalispell,
41
WHEREAS, CITY is authorized to dispose of the said property under the Montana
Urban Renewal Law for purposes consistent with the Kalispell City Airport/Athletic
Complex Redevelopment Plan for the City of Kalispell, and
WHEREAS, ROSAUERS desires to purchase from the CITY a portion of said
property for the construction of a grocery/pharmacy complex in accordance with the
Development Agreement, attached hereto and thereby made a part hereof.
NOW, THEREFORE, the parties agree as follows:
1. ROSAUERS agrees to purchase from CITY and CITY agrees to sell to
ROSAUERS certain real estate located in Kalispell, Flathead County,
Montana, described as follows:
LOT 2, DALEY FIELD SUBDIVISION, NW 1/4, Section 20, T28N
R21W, P.M.M., Kalispell, Flathead County, Montana.
2. PURCHASE PRICE. The purchase price to be paid by ROSAUERS to CITY
shall be the sum of Seven Hundred Forty Four Thousand Two Hundred Thirty
Four Dollars ($744,234.00).
3. PAYMENT OF PURCHASE PRICE. The purchase price shall be paid by
ROSAUERS to CITY in the following manner:
A. The sum of Thirty Seven Thousand One Hundred Sixty Six Dollars
($37,166.00) as an earnest money down payment, the receipt and
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December 22, 1997 1
sufficiency of which is hereby acknowledged by CITY.
B. The balance of the purchase price in the amount of Seven Hundred
Seven Thousand and Sixty Eight Five Dollars ($707,068,00) shall be
due and payable to the CITY at Closing.
4. CLOSING DATE. Subject to satisfaction of the conditions precedent to
Closing set forth in Section 4. 1, below, ROSAUERS and CITY mutually agree
to close said sale no later than December 23, 1997.
4.1. Conditions Precedent to Closing. Notwithstanding Section 4 to the
contrary, the parties shall not purchase and sell the property unless and
until they have satisfied, or waived, the following conditions precedent.
A. Development Agreement. The parties shall enter into or agreed
upon a Development Agreement, effective on Closing.
B. Restrictive Covenant. CITY shall have prepared, ROSAUERS
shall have consented to, and CITY shall file promptly upon
Closing, a restrictive covenant on the balance of the Daley Field
property that prohibits the sale, lease, development and/or
operation of a grocery store, and/or pharmacy, as defined in
such restrictive covenant, on the balance of the Daley Field
property. The restrictive covenant shall expire if Rosauers
Supermarkets, Inc. is not operating a grocery store on or from
the real property identified as Lot 2, Daley Field Subdivision,on
or before the later of (a) January 1, 2001; or (b) one (1) year
after the date on which the CITY completes the installation of
a stop light at Third Avenue East, and U.S. Highway 493.
C. Easements. ROSAUERS and CITY shall have entered into or
agreed upon a Reciprocal Easement and Maintenance
Agreement for the private road appurtenant to, and positioned
upon the boundary between, Lots 1 and 2, Daley Field
Subdivision and CITY shall promptly record such Reciprocal
Easement and Maintenance Agreement at or as a part of
Closing.
5. POSSESSION. Possession of the said property shall be given to ROSAUERS
by CITY at Closing.
6. TITLE INSURANCE. CITY agrees to provide to ROSAUERS, within ten
(10) days of execution of this Purchase Agreement and shall cause to be issued
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upon Closing, at CITY'S expense, an owner's commitment for title insurance
(on ALTA Form 1990-13) insuring said property purchased hereunder for the
sum of Seven Hundred Forty Four Thousand Two Hundred Thirty Four
Dollars ($744,234.00), insuring good and marketable title to be in the CITY'S
name; subject, however, to easements and right-of-way for utilities, highways
and storm sewers of record, none of which, in ROSAUERS' discretion, shall
interfere with ROSAUERS' intended use.
7. CITY'S REPRESENTATIONS AND WARRANTIES. As a further
inducement to ROSAUERS to enter into this Purchase Agreement and to
consummate the transaction contemplated by this Purchase Agreement, CITY
warrants to ROSAUERS, now and as of the date of Closing, as follows:
A. CITY has good and insurable title to the real estate to be transferred
hereunder. The title to be granted and conveyed shall be merchantable,
fee simple title free and clear of all matters except those exceptions
described in the Title commitment, if approved, or otherwise waived by
ROSAUERS or provided for herein. Real estate to be subject to the
"airport influence zone" or other land use restrictions set forth in the
special or subsequent influence zone regulations adopted by the Airport
Authority.
B. CITY has full right, power and authority and have taken all requisite
actions to enter into this Purchase Agreement and to grant, sell, and
convey said property to ROSAUERS as provided in this Purchase
Agreement and to carry out its obligation as set forth in this Purchase
Agreement.
C. CITY has not received notice from any governmental authority of any
violation affecting the property to be transferred hereunder except as
disclosed in writing to ROSAUERS prior to the execution of this
Purchase Agreement, if any.
D. There are no pending improvement liens or special assessments to be
against the premises by any governmental authority or third party,
except as otherwise disclosed in writing to ROSAUERS prior to the
execution of this Purchase Agreement and except special and annual
assessments applicable to all property within the City.
E. No work has been performed or is in progress by CITY or at the
direction of CITY, and no materials have been furnished to the
premises or any portion thereof, which might give rise to a mechanic's,
materialman's construction or other liens against said property.
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December 22, 1997 3
F. No consent or approval of any person, entity or governmental agency
or authority is required with respect to the execution and delivery of
this Purchase Agreement by CITE' and, as of the Closing date no
unobtained consent or approval will be required with respect to the
consummation by CITY of the transactions contemplated hereby or the
performance by CITY of its obligations hereunder.
G. CITY shall not grant, sell, convey, or encumber said property prior to
Closing date.
H. Said property is not subject to any leasehold interest and CITY further
agrees that CITY will not enter into any lease of said property, nor will
the CITY use said property for the storage of snow.
I. There is no indebtedness outstanding and no outstanding or unpaid bills
incurred for labor and material in connection with said property, or for
service of architects, surveyors, or engineers in connection with said
property.
J. Said property is served by a dedicated public highway and there are no
right-of-way adjustments pending that will materially affect said
property.
K. There are no taxes, assessments or liens against said property for any
present or past due taxes or for paving, sidewalk, curbing, sewer, or
other improvements of any kind, except for special and annual
assessments applicable to all property within the City, none of which
have any balance due.
L. As of the Closing date, there will be no outstanding, pending, or
threatened suits, judgments, executions, bankruptcies, condemnation
proceedings, changes, or any other proceedings pending or on record
in any court of any nature or before or by any governmental or
administrative agency which could in any manner now affect
ROSAUERS'S title to, possession of, or use of said property, or which
could now or hereafter constitute a lien upon said property or
materially or adversely affect or change said property, except zoning
changes occasioned by the adoption of an airport master plan
containing an airport influence area.
M. CITY is not surety on any bond or indebtedness wherein through the
default thereof, a lien against said property would be created without
further legal action.
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December 22, 1997 4
1997360
further legal action. 1,5110
N. As of the Closing date, there will be no recorded or unrecorded liens,
security interest, security agreements, or UCC financing statements
against said property.
O. Said property is not subject to any federal, state or local "Superfund"
lien proceedings, claim, liability or action, or the threat or likelihood
thereof, for the cleanup, removal or re -mediation of any "hazardous
substance" from said property, and CITY has not caused and will not
cause, and there never has occurred a release, leak, discharge, spill,
disposal, or emission of any "hazardous substance" as of the date
hereof. As between the CITY and ROSAUERS, CITY shall bear any
and all environmental liability, including attorney's fees, for any
hazardous substances on, in, or under the property, including any
groundwater contamination, as of the Closing Date, even if discovered
after the Closing Date, and ROSAUERS shall bear any and all
environmental liability, including attorney's fees, for any hazardous
substances, released, leaked, discharged, spilled, disposed of, emitted
or otherwise placed on, in, or under the property, including any
groundwater contamination after the Closing Date. As used in this
Purchase Agreement, "hazardous substance" means any substance that
is toxic, ignitable, reactive, or corrosive and that is regulated by any
local government, State of Montana, or the United States. "Hazardous
Substance" includes any and all material or substances that are defined
as "hazardous wastes", "extremely hazardous waste" or "Hazardous
Substance" pursuant to state, federal or local governmental law
including without limitation CERCL,, SARA, RCRA, the Clean Water
Act, the OSHA Act, or the Toxic Substance Control Act. "Hazardous
Substance" includes, but is not restricted to, asbestos, petroleum
products, nuclear fuel or materials, known carcinogens, urea
formaldehyde, foamed -in -place insulation, and polychlorinated
biphenyl (PCBs).
P. The warranties and representations set forth in this Section 7 shall
survive the Closing, and shall not be merged into the Deed described
in Section 9, below.
Q. In the event that any of the representations and warranties set forth in
this paragraph are not true in any material respect as of the Closing date
or if CITY otherwise defaults hereunder, in addition to any other
remedies available to ROSAUERS, ROSAUERS may terminate this
Purchase Agreement on or at any time prior to the Closing date and the
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December 22, 1997 5
earnest money shall be immediately returned to ROSAUERS.
8. ROSAUERS REPRESENTATIONS AND WARRANTIES. ROSAUERS
represents and warrants as follows:
A. That ROSAUERS has the right, power and authority to purchase said
property subject to the terms and conditions as provided under this
Agreement, and execute, deliver and perform its obligation under this
Agreement.
B. To ROSAUERS actual knowledge, there exists no action, suit,
litigation or proceeding which would limit ROSAUERS' ability to
purchase said property and to perform the terms and conditions of this
Agreement.
C. ROSAUERS shall allow the use of the property, subject to this
Agreement, to be used for baseball through the end of the 1998 Season
(approximately July 15, 1998), in exchange for paying the expenses
described in Section 10 below. CITY shall indemnify and hold
ROSAUERS harmless from and against any liability arising from the
use of or open access to such property during such period, except such
liability as arises due to the acts or omissions of ROSAUERS, its
agents or employees.
D. The warranties and representations set forth in the Section 8 shall
survive the Closing.
9. CLOSING DOCUMIENTATION. At the Closing, the CITY shall deliver to
ROSAUERS a standard form of Montana Grant Deed conveying title to said
property.
A. At the Closing, the CITY shall execute, and as part of Closing the
CITY shall record, the restrictive covenant described in Section 4.13,
above.
B. At the Closing, the CITY and ROSAUERS shall execute, and as a part
of Closing the CITY shall record, the Reciprocal Easement described
in Section 4. LC, above.
10. OPERATING EENSES, COSTS, CHARGES AND PROPERTY
TAXES. CITY shall be responsible and shall pay for all operating expenses
which have accrued or shall become due prior to the Closing date. All
operating expenses shall be read and finalized, if reasonably possible, as of the
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December 22, 1997
11
Closing date. The CITY shall also be liable for any operating expenses, costs,
and charges during the period that the property is used for baseball as
described in Section 8.C, above. ROSAL-ERS shall be responsible for taxes
on Lot 2, Daley Field Subdivision commencing January 1, 1998.
11. ZONING. The CITY represents that the property is properly zoned for all
uses outlined in the proposal of which the Purchase Agreement is part for the
City of Kalispell, Montana.
12. NOTICES. Notices shall be given under this Agreement upon delivery to the
address set forth below either by certified mail or by delivery from nationally -
recognized, overnight delivery service. Notices shall be delivered to the
following addresses:
To CITY: City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59903
To ROSAUERS: Rosauers Supermarkets, Inc.
c/o President
P.O. Box 9000
Spokane, WA 99209-9000
cc: Jerry Hagood
Kiemle & Hagood
W. 601 Main Avenue, Suite 400
Spokane, WA 99201
13. BINDING EFFECT: This Agreement shall be binding and inure to the
benefit of the parties hereto, their heirs, successors and assigns.
14. GUARANTY: By its signature below as the sole member of RSI, L.L.C.,
Rosauers Supermarkets, Inc. agrees to guaranty the obligation of RSI, L.L.C.
under this agreement.
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December 22, 1997 %
BY:v W sa�L—
Its: President
Attest:
40� Ica
Its: i m--,
In his capacity as President of
SAUE S SUPERMARKETS, INC.
a Washington, corporation
Y:
Attest:
6 �—'Q o"
Its: n
a:\purcagree.wpd.
December 22, 1997
BY:
Its: 01 1 U'\ el TI
.. x
` d �
Attest: CL ` �O
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.d 0
Its.,/;," �p
State of 199736015110
:ss
County of o�-A)
On this 2.q day of , 1997, before me, the undersigned, a Notary
Public for the State of personally appeared � b C ,
known to me to be the Presideof Rosauers Supermarket, Inc, a Washington corporation
which is the sole member of RSI, L.L.C., a Montana limited liability company, whose name
is subscribed to the foregoing instrument and acknowledged to me that such Corporation
executed the same.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
Notary Public, State of(�,
Residing at:
My Commission Expires: L1 ` t _ Z
State of�,E, )
:ss
County of 5p o � )
On this 2. 4 day of �' . , 1997, before me, the undersigned, a Notary
Public for the State of Uo D�1, , personally appeared S C-> ,
known to me to be the President of Rosauers Supermarket, Inc, a Washington corporation,
whose name is subscribed to the foregoing instrument and acknowledged to me that such
Corporation executed the same.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
6T� [(z —
Notary Public, State of W h c
Residing at:
My Commission Expires: It _ l -- 200 (
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December 22, 1997 9
STATE OF MONTANA ) 1997360 1 110
ss
County of Flathead )
On this ,Xj� day of 6,-,- , 1997, before me, a Notary Public in and
for the State of Montana, personally appeared Clarence W. Krepps, known to me to be the
City Manager of the City of Kalispell, a municipality, that executed the within instrument,
and acknowledged that such City Manager subscribed, sealed and delivered said instrument
as the free and voluntary act of said municipality, for the uses and purposes therein set forth,
and that he was duly authorized to execute the same on behalf of said municipality.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal,
the day and year first above written.
STATE OF MONTANA,
ss
County of Flathead
Recorded at the request of [_:. 1-6
this A0 day of � , 19
92)
the records of Flathead County, State of Montana.
Fee $ Pd.
RECEPTION NO. 15110
PITAURNBUO
otary P blic, State of Montana
Residing at Kalispell, Montana
My Commission Expires: f /�/
at : o'clockto M and recorded in
Trippet s Printing Jerk& - ec
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December 22, 1997 10