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A RESOLUTION AUTHORIZING THE REPURCHASE OF CERTAIN REAL PROPERTY BETWEEN BALDWIN COLD LOGISTICS LLC, AND THE CITY OF FOLEY
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WHEREAS, BCL is the owner of certain real property located in Baldwin County, Alabama and more specifically described on Exhibit A attached hereto and made a part hereof (the “Property”); and
WHEREAS, BCL acquired the Property from the City pursuant to the Deed between the parties dated December 27, 2024 and recorded as Document Number 2163765 in the records of the Judge of Probate of Baldwin County, Alabama; and
WHEREAS, in the 2024 Development Agreement referenced in the 2024 Deed, BCL was required to develop the Property in a certain manner by a certain deadline; and
WHEREAS, BCL has advised the City that it will not be able to develop the Property as required by the Development Agreement; and
WHEREAS, BCL desires to re-convey the Property back to the City, and the City desires to re-acquire the Property, pursuant to the Development Agreement’s terms which are set forth below;
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the premises, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
Section 1. Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller hereby agrees to sell and convey the Property to Purchaser, and Purchaser hereby agrees to purchase the Property from Seller.
Section 2. Purchase Price. The purchase price for the Property shall be SEVEN HUNDRED THIRTY-FOUR THOUSAND and No/100 Dollars ($734,000.00) (the “Purchase Price”). The Purchase Price shall be paid to Seller at Closing in immediately available funds satisfactory to Seller.
Section 3. Earnest Money. Within five (5) business days after the Effective Date, if not previously provided, Purchaser shall deposit in escrow with Gulf Shores Title Co. (the “Title Company”) cash or other immediately available funds in the amount of TEN and No/100 Dollars ($10.00) (the “Earnest Money”). If this offer is not accepted or the title is not marketable, the Earnest Money is to be refunded. In the event of default by Purchaser, the Earnest Money shall be forfeited as liquidated damages, and neither Seller nor Purchaser shall have any further obligation or liability to the other hereunder.
Section 4. Title Approval. Promptly following the Effective Date, Purchaser will obtain a commitment (“Title Commitment”) from the Title Company for an owner's title insurance policy (“Owner’s Policy”), along with copies of any items listed as title requirements or exceptions therein. Prior to expiration of the Due Diligence Period (as defined below), each party shall advise the other party in writing of any requirements or conditions of title which are not satisfactory to the objecting party (“Title Objections”). Any title exceptions which are set forth in the Title Commitment or survey of the Property to which the objecting party does not object prior to expiration of the Due Diligence Period shall be deemed to be permitted exceptions to the status of Sellers’ title (the “Permitted Exceptions”). The premiums for the Owner’s Policy and any search fees or Title Commitment fees shall be paid by Seller.
Section 5. Due Diligence Period. Subject to prior notice and scheduling with Seller, Purchaser or Purchaser's agents may inspect and evaluate the Property for a period of forty-five (45) days after the Effective Date (the “Due Diligence Period”) as needed to inspect, examine, survey, perform studies or assessments including surveying, environmental inspection, or otherwise do whatever Purchaser reasonably deems necessary to evaluate the Property; provided, however, none of the physical investigations so conducted will result in any material adverse change to the physical characteristics of the Property. In the event that there is a material adverse change to the Property during the Due Diligence Period Purchaser may cancel this Agreement by giving written notification of such cancellation to Seller prior to the expiration of the Due Diligence Period, in which event neither party hereto shall have any further obligations under this Agreement. In the event Purchaser does not give such notification to Seller in writing prior to the expiration of the Due Diligence Period, the said inspection or evaluation of the Property shall be deemed satisfactory to Purchaser in all respects, and Purchaser agrees to accept the Property and the improvements thereon “as is, where is;” in its present condition with all faults. During this Due Diligence Period, Purchaser has a duty in its inspection of the Property to be assured the Property is in a satisfactory condition for its purposes.
Section 6. City Council Approval Contingency. This Agreement and the Seller’s obligation to sell the Property as provided herein is contingent upon the issuance of all necessary and proper authorizations and approvals by the City Council of the City of Foley. This approval will be granted thirty (30) days from the Effective Date.
Section 7. Representations and Warranties of Seller. As a material inducement to Purchaser to execute this Agreement and to consummate the transaction made the subject hereof, Seller hereby makes the following representations and warranties to Purchaser (each of which are true and correct as of the date hereof and shall be true as of the Closing) (a) Seller has the full power, right and authority to enter into this Agreement, without joinder of any other person or entity. (b) Seller has not (i) granted any rights of first refusal, options to purchase or other similar agreements with respect to the Property which give anyone the right to purchase the Property or any part thereof, (ii) entered into any leases with respect to all or any part of the Property or any agreements which give anyone any right in the future to lease or occupy all or any part of the Property, or (iii) granted or conveyed any easement, mortgages, liens, encumbrances or other interest of any nature with respect to all or any part of the Property. (c) Neither the execution and delivery of this Agreement or any documents referred to herein, nor the consummation of the transaction herein contemplated, conflict with or will result in the breach of any terms, conditions or provisions of, or constitute a default under, any agreements or instruments to which Sellers are a party or which otherwise affect Sellers or the Property. (d) There are no judgments or pending legal or equitable actions or suits or administrative proceedings pending or, to the best of Seller’s knowledge, threatened against Sellers with respect to the Property, and Sellers are not aware of any facts which might result in such action, suit or proceeding. (e) Conveyance of the Property shall be by Statutory Warranty Deed. The Seller’s representations and warranties set forth in this Agreement shall survive the Closing.
Section 8. Closing. The closing of the purchase of the Property (“Closing”) shall take place at the office of the Title Company on or before the thirtieth (30 th ) day following the expiration of the Due Diligence Period, or on the following business day if such thirtieth (30 th ) day is a Saturday, Sunday or holiday on which national banks in Foley, Alabama are closed (the “Closing Date”); provided, however, that the Parties shall use commercially reasonable efforts to cause the Closing to occur through escrow without either party having to be physically present for theClosing. Purchaser may advance the Closing Date to an earlier date upon reasonable notice to Seller.
Section 9. Closing Deliverables. The purchase and sale of the Property pursuant to this Agreement shall be made by the execution and delivery at the Closing of the following instruments and documents by, from and between Seller and Purchaser, as applicable: (a) The Deed in Alabama standard form conveying the Property to Purchaser, subject only to the lien for current ad valorem taxes and the Permitted Exceptions;(b) Settlement Statement prepared in accordance with this Agreement; (c) The Owner’s Title Policy;(d) A Non-Foreign Status Affidavit and Certificate in customary form to be provided by the Title Company; and (e) Such authorizations, affidavits, organizational documents, proof of existence and good standing and other instruments as the Title Company shall require,including, without limitation, affidavits required by the Title Company to delete the standard exceptions to the Title Commitment concerning such matters as mechanic’s liens, parties in possession and the gap, and such other and additional documents or instruments as may be required of Seller or Purchaser, under the terms of this Agreement, to complete the sale and purchase of the Property.
Section 10. Closing Costs and Expenses. (a) Seller shall pay (i) all recording and transfer fees, documentary stamps, taxes or other charges or assessments in connection with the recording of the Deed andother closing documents, as applicable, (ii) the fees charged for issuance of the Title Commitment and the premium charged for the Owner’s Policy, (iii) the closing fee charged by the Title Company in connection with the Closing, and (iv Seller’s attorney’s fees in connection with this transaction and the Closing. (c) Real estate taxes and assessments, if any, with respect to the Property shall be prorated based upon the best estimate available to the closing agent.
Section 11. Default. Should a party breach this Agreement, or this transaction not be concluded because of the default of a party, then the other party shall have such rights or remedies as may be afforded to it by law, provided that neither party shall have the right or remedy of specific performance.
Section 12. Broker Commission. Seller and Purchaser hereby represent and warrant, each to the other, that there are no brokers, salesmen or other persons or entities entitled to any commission, finder’s fee or compensation of any nature or character whatsoever which is or might be due for bringing about this transaction, and each party hereto hereby agrees to indemnify and hold the other harmless from any claim or liability (including costs and attorney's fees) to agents or brokers with whom such party may have dealt.
Section 13. Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon each of the parties hereto, and their respective successors and permitted assigns.
Section 14. Notices. Any notices or other communications which may be required or desired to be given under the terms of this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, if sent by overnight courier service (e.g., Federal Express) or if mailed by United States certified mail, return receipt requested, postage prepaid, addressed to the respective party at the addresses set forth below:
Section 15. Appropriates $739,000 to account 400-1010-5107 LP-4.
Section 16. This Resolution shall become effective immediately upon its adoption as required by law.