resolutionresolutions.hamiltontn.gov/resolutions/2011/1011-26.pdf · october 19,2011 state of...

October 19,2011 STATE OF TENNESSEE DATE (Month, Day, Year)

Hamilton County

Hamilton County Board of Commissioners

RESOLUTION 1011-26

A RESOLUTION AUTHORIZING THE COUNTY MAYOR TO ENTER INTO AN AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE AND TO EXECUTE ALL DOCUMENTS NECESSARY TO PURCHASE IN THE NAME OF HAMILTON COUNTY, TENNESSEE, CERTAIN PROPERTY NEEDED TO CONSTRUCT A NEW ELEMENTARY SCHOOL TO REPLACE THE EXISTING OOL TEW AH ELEMENT ARY SCHOOL.

WHEREAS, the present Ooltewah Elementary School and property located at 9232 Lee Highway is no longer adequate to accommodate the existing needs and future growth of the Ooltewah area; and,

WHEREAS, negotiations between representatives of Hamilton County, the Hamilton County Department of Education, and the property owner, Fatherson Partnership Two, have resulted in an Agreement For Purchase and Sale of Real Estate being reached among said entities, as closely reflected by the attached copy, subject to the approval of the Hamilton County Board of Commissioners, for the purchase of a 33.97 acre (subject to survey) tract of land identified as part of State Tax Map No. 114-084 located near 8830 Green Gap Road, in the name of Hamilton County, Tennessee, for the purchase price of $875,000 ($25,758 per acre) plus costs of closing; and,

WHEREAS, the funding source for the property purchase shall be Commercial Paper; and,

WHEREAS, it is the desire of this county legislative body that the revenue from the eventual sale of the present Ooltewah Elementary School shall be tendered to Hamilton County, Tennessee, for holding in escrow for the benefit of the Hamilton County Department of Education and reserved for the purchase of future school sites, building of new schools, and/or renovation of existing schools, as may be approved by this county legislative body; and

WHEREAS, it is in the best interest of the citizens of Hamilton County to purchase said property for the construction and replacement of the existing Ooltewah Elementary School.

*Printed on recycled paper.

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Resolution No. 1011-26

NOW, THEREFORE, BE IT RESOLVED BY THIS COUNTY LEGISLATIVE BODY IN SESSION ASSEMBLED:

That the County Mayor is hereby authorized to enter into and execute an agreement For Purchase and Sale of Real Estate, as closely reflected by the attached copy, with Fatherson Partnership Two and sign all necessary closing documents for the purchase of property identified as a portion of State Tax Map No. 114-084 consisting of approximately 33.97 acres (subject to survey), in the name of Hamilton County, Tennessee, for the price of $875,000 ($25,758 per acre) plus costs of closing, for the replacement of the existing Ooltewah Elementary School.

Be it further resolved that the attached proposed Agreement between the Hamilton County Board of Education, Hamilton County, Tennessee, and Fatherson Partnership Two be amended to reflect that the proceeds from the eventual sale of the present Ooltewah Elementary School shall be tendered to Hamilton County, Tennessee, for holding in escrow for the benefit of the Hamilton County Department of Education and reserved for the purchase of future school sites, building of new schools, and/or renovation of existing schools, as may be approved by this county legislative body.

BE IT FURTHER RESOLVED THAT THIS RESOLUTION TAKE EFFECT FROM AND AFTER ITS PASSAGE, THE PUBLIC WELFARE REQUIRING IT.

0-t f\ ·'.\ Approved: s l"lrr''~ •

Rejected:

Approved:

Vetoed:

Printed on recycled paper

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October 19, 2011 STATE OF TENNESSEE DATE (Month. Day, Year)

Hamilton County

Hamilton County Board of Commissioners

RESOLUTION No. 1011-26

A RESOLUTION AUTHORIZING THE COUNTY MAYOR TO ENTE 0 AN AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE AND TO E CUTE ALL DOCUMENTS NECESSARY TO PURCHASE CERTAIN PROPERTY NEED TO CONSTRUCT A NEW ELEMENTARY SCHOOL TO REPLACE THE EXISTING OOL AH ELEMENTARY SCHOOL.

WHEREAS, the present Ooltewah Elementary School an property located at 9232 Lee Highway is no longer adequate to accommodate th existing needs and future growth of the Ooltewah area; and,

WHEREAS, negotiations between representatj es of Hamilton County, the Hamilton County Department of Education, and fl{e property owner, Fatherson Partnership Two, have resulted in an Agreement Fo base and Sale of Real Estate being reached among said entities, as closely re ed by the attached copy, subject to the approval of the Hamilton County Board Commissioners, for the purchase of a 33.97 acre (subject to survey) tract ofland id tified as part of State Tax Map No. 114-084 located near 8830 Green Gap Road fo e purchase price of $875,000 ($25,758 per acre) plus costs of closing; and,

WHEREAS, the funding so ce for the property purchase shall be Commercial Paper; and,

WHEREAS, it is in the est interest of the citizens of Hamilton County to purchase said property for the co ction and replacement of the existing Ooltewah Elementary School.

NOW, THEREFO , BE IT RESOLVED BY TIIIS COUNTY LEGISLATIVE BODY IN SESSION ASSEMBLED:

That the Cou Mayor is hereby authorized to enter into and execute an Agreement For Purchase and Sale of Real state, as closely reflected by the attached copy, with Fatherson Partnership Two and sign all necess closing documents for the purchase of property identified as a portion of State Tax Map No. 114-084 nsisting of approximately 33.97 acres (subject to survey) for the price of $875,000 ($25, 758 per acre plus costs of closing, for the replacement of the existing Ooltewah Elementary School.

BE FURTHER RESOLVED THAT TIIIS RESOLUTION TAKE EFFECT FROM AND AFTER ITS PA AGE, THE PUBLIC WELFARE REQUIRING IT.

Approved: :..J CERTIFICATION OF ACTION

Rejected: :..J U/~~ County Clerk ·

Approved: .J County Mayor

October 19, 2011 Vetoed: :..J

Date

DRAFT 10/11/11

AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE

THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE (this "Agreement") is made this __ day of October, 2011, (the "Effective Date") by and between FATHERSON PARTNERSHIP TWO, a Tennessee general partnership ("Seller"), and HAMILTON COUNTY BOARD OF EDUCATION, a political subdivision of the State of Tennessee and HAMILTON COUNTY, TENNESSEE, a political subdivision of the State of Tennessee (collectively, "Buyer").

RECITALS

Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, certain real property, consisting of (i) a tract consisting of approximately 30.6 acres, more particularly described on Exhibit A, attached to and incorporated in this Agreement, together with all improvements thereon and all rights, privileges, and easements appurtenant thereto (the "School Board Property"), located near 8830 Green Gap Road, Hamilton County, Tennessee; and (ii) a tract ofland consisting of approximately 3.37 acres from Ooltewah-Georgetown Road to Green Gap Road and then along Green Gap Road to the School Board Property, as more particularly described on Exhibit B (the "Roadway"); the School Board Property and the Roadway shall be collectively referred to in this Agreement as the "Property").

NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Purchase and Sale of Property. Seller hereby agrees to sell, convey and transfer to Buyer, and Buyer hereby agrees to purchase, fee simple title to the Property free and clear of all liens, claims, and encumbrances whatsoever, except as specifically approved by Buyer, subject to the terms and conditions of this Agreement.

2. Purchase Price. The purchase price of the Property shall be $875,000 (the "Purchase Price") which shall be paid in immediately available funds at the Closing (as defined in this Agreement).

3. Additional Agreements. At such time as the Buyer commences construction of the school on the School Board Property, Buyer agrees, at its sole cost and expense, to complete the following construction projects ("Construction Projects"):

(a) Buyer shall construct a sixty foot (60') wide access road ("New School Road") in the Roadway from Ooltewah-Georgetown Road to Green Gap Road and than along Green Gap Road to the School Board Property on Exhibit C, in accordance with the public road standards of Hamilton County, Tennessee and the New School Road shall be dedicated to Hamilton County, Tennessee as a public Road. In connection with the construction of the New School Road, Buyer shall install all necessary drainage culverts. Buyer shall grant to Seller a non-exclusive ingress

Seller --- Buyer __ _ Buyer ---

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and egress easement ("Access Road Easement") across the portion of the New School Road located on the Roadway until the New School Road has been dedicated and accepted as a public road.

(b) Along the entire length of the New School Road, Buyer shall construct and install ("Utility Insta11ation") an eight-inch (8") water line, and install or arrange for the installation of, telephone, gas, electricity, cable, internet, fiber optics and other utilities, all in accordance with Hamilton County, Tennessee building code standards.

The foregoing described Construction Projects shall be completed by Buyer no later than thirty-six (36) months from the date the Buyer acquires the Property ("Completion Deadline"). Buyer's obligation to complete the Construction Projects is subject to the availability of funding and Buyer covenant to use its best efforts obtain the necessary funding to complete the Construction Projects prior to the Completion Deadline. Seller and Buyer understand and agree that this Section 3 of the Agreement shall survive the Closing and shall continue in full force and effect until the Construction Projects are completed and ready for use.

4. Earnest Money. Buyer shall pay to Pioneer Title Agency, Inc., 513 Georgia Avenue, Chattanooga, Tennessee ("Title Agent") Ten Thousand Dol1ars ($10,000) earnest money ("Earnest Money"), which Title Agent shall hold in escrow. The Earnest Money and a11 interest thereon shall be applied at the Closing toward the Purchase Price of the Property. The Earnest Money and all interest earned thereon shall be returned to Buyer ifthe Closing does not take place because Buyer exercises Buyer's rights under Sections 8, 9, or l 0, or because any of the conditions set forth in Section 11 are not satisfied or if the Closing does not take place due to the fault of Seller. If the Closing does not take place due to the fault of Buyer (other than Buyer exercising Buyer's rights under Sections 8, 9, or 10 of this Agreement), the Earnest Money and all interest earned thereon shall be paid to Seller as liquidated damages and such payments shall be Seller's sole and exclusive remedy against Buyer.

5. Option Property. Buyer acknowledges that Seller has informed the Buyer that the Seller does not own, but has under option, approximately thirteen (13) acres of property located along Ooltewah-Georgetown Road designated as map parcel no. 114-017, 114-017.01 and 114-017.03 ("Option Property"). A portion of the Roadway is located in the Option Property. Seller agrees to use its best efforts to close on the Option Property simultaneously with the sale of the Property to Buyer. If Seller is unable to close on the Option Property on or before the proposed Closing, Seller shal1 notify the Buyer and the Title Agent shall return the $10,000 Earnest Money to Buyer, this Agreement shall terminate and neither party shal1 have any further rights, duties or obligations under this Agreement.

6. Closing. The closing of the purchase and sale of the Property shall take place at the offices of Title Agent on or before December 9, 2011, or at such other time and place as shall be mutually agreed upon by the parties (the "Closing").

Seller Buyer __ _ Buyer __ _ ---

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7. Warranty Deed. Seller shall convey good and marketable fee simple title to the Property, to Buyer by limited warranty deed, which shall warrant title to the Property to be free and clear of all liens, charges, easements, covenants, encumbrances, defects and restrictions, except (i) real estate taxes not yet due; (ii) covenants, conditions and restrictions, rights of way, and easements of record, if any, and (iii) encumbrances which do not materially or adversely affect Buyer's intended use of the Property ("Permitted Encumbrances").

8. Survey. Buyer may, at its sole cost and expense, retain a surveyor licensed in the State of Tennessee to prepare an ALTA-ASCM survey of the Property, which survey shall set forth the legal description of the Property to be incorporated into the limited warranty deed for the Property. If the survey shows easements, encroachments or other conditions, other than Permitted Encumbrances, Buyer shall advise Seller of the existence of such condition and, if Seller does not undertake to cure such violation, Buyer shall have the right at any time prior to the Closing to terminate this Agreement, in which event Seller shall return to Buyer all Earnest Money delivered by Buyer to Seller under this Agreement, with accrued interest thereon, if any, and the parties shall be under no further duty or obligation to each other under this Agreement. Buyer shall submit a copy of such survey to Seller upon receipt by Buyer.

9. Title Insurance. Within fifteen (15) days from the date of this Agreement, Buyer may obtain, at Buyer's sole cost and expense, from Title Agent, an owner's title insurance commitment to issue a title insurance policy from the title company insuring Buyer's fee simple title to the Property to the extent of the Purchase Price, without exception for filed or untiled liens or any adverse claims or encumbrances of any nature whatsoever other than the Permitted Encumbrances. If such title insurance commitment shows exceptions, easements, encroachments or other conditions, other than Permitted Encumbrances, Buyer shall advise Seller of the existence of such condition and, if Seller does not undertake to cure such violation, Buyer shall have the right at any time prior to the Closing to terminate this Agreement, in which event Seller shall return to Buyer all Earnest Money delivered by Buyer to Seller under this Agreement, with accrued interest thereon, if any, and the parties shall be under no further duty or obligation to each other under this Agreement.

10. Inspection. Buyer and its authorized representatives shall have the right to go upon the Property for thirty (30) days from the full execution of this Agreement ("Inspection Period") for the purpose of making a general inspection of the Property, which shall include taking soil and water samples by drilling or other means, and making such other examinations, tests and surveys which Buyer may deem necessary or appropriate including, but not limited to, an environmental survey and assessment. All expenses of any such inspection shall be borne by Buyer. In the event the general inspection or any environmental assessment report reveals the existence on the Property of any condition which, in Buyer's reasonable discretion prior to expiration of the Inspection Period, would materially impair Buyer's use of the Property for the construction of a school, Buyer shall have the right to advise Seller of the existence of such condition and, if Seller does not undertake to cure such violation, Buyer shall have the right at any time prior to the expiration of Inspection Period to terminate this Agreement, in which event Seller shall return to Buyer all Earnest Money delivered by Buyer to Seller under this


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Agreement, with accrued interest thereon, if any, and the parties shall be under no further duty or obligation to each other under this Agreement. Buyer agrees to restore any part of the Property inspected to its condition as it existed prior to the inspection and Buyer shall indemnify and hold the Seller harmless from any liability, claim or demand arising out of the acts or omissions of Buyer or its agents contractors, employees or other parties conducting activities on the Property on behalf of Buyer. This indemnity covenant shall survive the termination of this Agreement or the Closing, but only for a period of one (I) year after such termination or Closing.

11. Conditions to Closing.

(a) In addition to any other conditions provided in this Agreement, Buyer's obligations to close the purchase of the Property shall be expressly conditioned upon the following:

(i) There shall be no change in the status of title from that shown in the title insurance commitment approved by Buyer;

(ii) The representations and warranties of Seller set forth in this Agreement shall be true and correct on and as of the Closing; and

(iii) Seller shall have closed on the Option Property.

(b) Seller shall furnish any other documents or information in its possession relating to the Property, including soil reports, building permits, licenses, etc.

Seller

12. Representations and Warranties.

(a) Seller represents and warrants to Buyer that:

(i) Seller is a Tennessee general partnership, and has the full legal right, power and authority to execute and deliver this Agreement and to perform in accordance with its terms, without the consent or approval of any other person, firm, governmental agency or other entity;

(ii) This Agreement, when duly executed and delivered, will constitute the legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by equitable principles or bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors' rights generally; and

(iii) The execution and delivery of this Agreement by Seller does not contravene or conflict with, or cause a default under, any provision oflaw, rule or regulation of any applicable governmental authority, any applicable judgment or order of any court or governmental agency, or any agreement or instrument to which Seller is a party or by which Seller or the Property is bound or affected.

Buyer __ _ Buyer __ _ ---

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EXCEPT AS SET FORTH ABOVE, BUYER HEREBY EXPRESSLY ACKNOWLEDGES THAT IT HAS, OR WILL HA VE, PRIOR TO CLOSING, THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE PURCHASE OF THE PROPERTY. EACH BUYER REPRESENTS THAT IT IS KNOWLEDGEABLE ABOUT PROPERTIES SUCH AS THE PROPERTY AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S CONSULT ANTS, AND THAT BUYER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, INSPECTIONS OF THE PHYSICAL AND ENVIRONMENT AL CONDITIONS THEREOF, AND SHALL RELY UPON SAME, AND, UPON CLOSING, SHALL ASSUME THE RISK OF ANY ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENT AL CONDITIONS, THAT MAY NOT HA VE BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS ACQUIRING THE PROPERTY ON AN AS IS, WHERE IS AND WITH ALL FAULTS BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE.

Seller

(b) Each Buyer represents and warrants to Seller that:

(i) Each Buyer is a political subdivision of the State of Tennessee and has the full legal right, power and authority to execute and deliver this Agreement and to perform in accordance with its terms, without the consent or approval of any other person, firm, governmental agency or entity;

(ii) This Agreement, when duly executed and delivered, will constitute the legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by equitable principles or bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors' rights generally;

(iii) The execution and delivery of this Agreement by Buyer does not contravene or conflict with, or cause any default under, any provision oflaw, rule or regulation of any applicable governmental authority, any applicable judgment or order of any court or governmental agency, or any agreement or instrument to which Buyer is a party or by which Buyer is bound or affected; and

(iv) Buyer shall use the Property solely for the purpose of a public grade school or middle school, and for no other purpose, for a period of not less than twenty (20) years from the date of Closing. IT IS AGREED AND UNDERSTOOD THAT THE TERMS AND PROVISIONS OF THIS SECTION 12 b (iv) SHALL EXPRESSLY SURVIVE THE CLOSING AND SHALL NOT MERGE THEREIN AND SHALL BE

Buyer __ _ Buyer __ _ ---

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IN CORPORA TED INTO THE LIMITED WARRANTY DEED TO BE DELIVERED BY SELLER TO BUYER AT CLOSING.

13. Action to be Taken at Closing.

(a) At the Closing, Seller shall deliver to Buyer the following:

(i) A fully executed limited warranty deed in proper form for recording, which conveys to Buyer fee simple title to the Property; and

(ii) Such other documents or instruments as may be reasonably requested by Buyer or Title Agent to consummate the transactions contemplated by this Agreement, including the sale of the Property to Buyer.

(b) At the Closing, Buyer shall deliver to Seller the following:

(i) The Purchase Price for the Property, less Earnest Money and interest accrued thereon, if any, in cash or other immediately available funds; and

(ii) Such other documents or instruments as may be reasonably requested by Seller or Title Agent to consummate the transactions contemplated by this Agreement, including the sale of the Property to Buyer.

14. Expenses. The expenses of this transaction shall be paid as follows:

(a) Seller shall pay the cost of the preparation of the limited warranty deed;

(b) Buyer shall pay for the title insurance policy and examination;

(c) Buyer shall pay for the recordation of the limited warranty deed, including any transfer taxes;

( d) Buyer shall pay for the survey, if any;

(e) Real estate taxes, insurance expenses, utility expenses, and other similar expenses and charges shall be apportioned between the parties as of the date of Closing;

(f) Seller and Buyer shall divide equally all closing fees and out-of-pocket expenses charged by the Title Agent in connection with the Closing; and

(g) Except as set forth in this Section 14 and this Agreement, Seller and Buyer shall each pay the expenses incurred by them, respectively, in connection with the Closing and the transactions contemplated by this Agreement.


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15. Possession. Possession of the Property shall be delivered to Buyer at the Closing. All risk of loss or damage to the Property shall remain with Seller until the Closing. Seller shall remove from the Property all of Seller's personal property prior to the Closing, if any.

16. Reserved.

17. Remedies.

(a) If (i) Buyer shall fail to perform or comply with any of the terms, covenants or agreements required by this Agreement to be performed or complied with by Buyer including but not limited to completion of the Construction Projects in a timely manner, or if (ii) the purchase and sale of the Property are otherwise not consummated in accordance with the terms and provisions of this Agreement due to a default by Buyer under this Agreement, and in either of such events the Earnest Money shall be refunded to Seller immediately upon request, and Seller may at its option either (A) compel Buyer to acquire the Property from Seller and complete the Construction Projects by a suit for specific performance, and, if Seller prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, (B) sue Buyer for damages incurred by Seller resulting either directly or indirectly from Buyer's default under this Agreement as described in this Section 17(a), and, if Seller prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, or (C) declare this Agreement terminated, in which event the Earnest Money shall be distributed to Seller immediately upon request of Seller and all rights and obligations of the parties under this Agreement shall expire (except as otherwise expressly provided in this Agreement), and this Agreement shall become null and void.

(b) If (i) Seller shall fail to perform or comply with any of the terms, covenants or agreements required by this Agreement to be performed or complied with by Seller, or if (ii) the purchase and sale of the Property are otherwise not consummated in accordance with the terms and provisions of this Agreement due to a default by Seller under this Agreement, then and in either of such events the Earnest Money shall be refunded to Buyer immediately upon request, and Buyer may, as its sole and exclusive remedy, at law or in equity, at its option either (A) compel Seller to convey the Property to Buyer by a suit for specific performance, and, if Buyer prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, (B) sue Seller for damages to Buyer resulting either directly or indirectly from Seller's default under this Agreement as described in this Section 17(b), and, if Buyer prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, or (C) declare this Agreement terminated, in which event the Earnest Money shall be refunded to Buyer immediately upon request of Buyer, all rights and obligations of the parties under this Agreement shall expire (except as otherwise expressly provided in this Agreement), and this Agreement shall become null and void.


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18. Broker. The parties each warrant and represent to each other that no fee is due to any broker in connection with this Agreement and the transactions described in this Agreement. The parties agree to mutually hold each other harmless from and against all claims for brokerage commissions asserted by any party as a result of the sale and purchase of the Property.

19. Survival. The covenants, representations and warranties of the parties in this Agreement shall be effective on the date of this Agreement and as of the Closing and will survive the Closing.

20. Assignment. This Agreement and all rights and interests in this Agreement shall not be assignable by either party without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.

21. Notice. All notices, consents and other communications hereunder shall be in writing and shall be personally delivered or mailed by overnight courier service or by first class, registered or certified mail, return receipt requested, postage prepaid as follows:

(a) If to Seller, to the address stated below, or to such address as may have been furnished by Seller to Purchaser in writing:

Fatherson Partnership Two P.O. Box 4201 Chattanooga, Tennessee 37405 Attn: Julian B. Bell

WITH COPIES TO:

Richard T. Hudson Chambliss, Bahner & Stophel, P.C. 1000 Tallan Building Two Union Square Chattanooga, Tennessee 37402-2500 Facsimile Number: (423) 508-1230

(b) lfto Purchaser, to the address stated below, or to such other address as may have been furnished by Purchaser to Seller in writing:

Seller ---

To: Hamilton County Board of Education Auxilliary Services 2501 Dodds A venue Chattanooga, Tennessee 37407 Attn: Gary Waters

Buyer __ _

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WITH A COPY TO:

D. Scott Bennett, Attorney Third Floor, Pioneer Building 801 Broad Street Chattanooga, Tennessee 37402

To: Hamilton County, Tennessee Real Proferty Office 123 E. ?1 Street Chattanooga, Tennessee 37402 Attn: Real Property Manager

WITH A COPY TO:

County Attorney's Office 201 E. ?1h Street 204 Courthouse Chattanooga, Tennessee 37402 Attn: Rheubin Taylor

Any such notice, request, consent or other communications shall be deemed received and effective at such time as it is personally delivered by acknowledged hand or courier delivery or on the next business day after it is mailed, as the case may be.

22. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement, and their respective heirs, legal representatives, successors and assigns.

23. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement. No amendment, waiver or modification of this Agreement shall be binding upon either party unless in writing and signed by the parties hereto.

24. Payment on Demand. All payments required under this Agreement, unless otherwise specified, shall be due and payable on demand.

25. Controlling Law. This Agreement has been entered into and shall be governed by and construed in accordance with the laws of the State of Tennessee.

26. Time is of the Essence. Time is of the essence in this Agreement

[Signature Page(s) Attached]

Seller ---Buyer __ _ Buyer __ _

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DRAFT 10/11/11

IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and year first above written.

Seller ---

SELLER:

FATHERSON PARTNERSHIP TWO, a Tennessee general partnership

By: ~------------~ Julian B. Bell General Partner

BUYER:

HAMILTON COUNTY BOARD OF EDUCATION

By: ~------------~ Name: Title:

~-----------~

HAMIL TON COUNTY, TENNESSEE

By: ~------------~ Name: ~-----------~ Title:

~-----------~

Buyer __ _ Buyer __ _

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EXHIBIT A Property

School Board Property Legal Description

ALL THAT TRACT OR PARCEL OF LAND lying and being in Hamilton County, Tennessee and being more particularly described as follows:

BEGINNING at a point at the end of the proposed southerly right-of-way of Green Gap Road on the westerly property line of Morgan (Deed Book 6306, Page 478); thence along the property line of Morgan the following calls South 12 Degrees 00 Minutes 06 Seconds East a distance of 37.96 feet to a 1/2" rebar found; thence South 50 Degrees 57 Minutes 04 Seconds East a distance of 146.03 feet to a 1/2" rebar found; thence South 48 Degrees 44 Minutes 21 Seconds East a distance of 114.10 feet to a 1/2" rebar found; thence South 45 Degrees 18 Minutes 36 Seconds East a distance of 325.24 feet to a point; thence South 78 Degrees 28 Minutes 57 Seconds East a distance of 57.78 feet to a point; thence South 82 Degrees 50 Minutes 04 Seconds East a distance of 193.27 feet to a point in the centerline of Varnell Creek; thence following the centerline meanderings of said creek 1966± feet to the northerly right-of-way of U.S. Interstate Highway No. 75 (R/W Varies), said line having a survey tie line between the beginning and ending points of South 70 Degrees 28 Minutes 37 Seconds East a distance of 1691. 76 feet to a point; thence along said right-of-way the following calls North 87 Degrees 55 Minutes 54 Seconds West a distance of 771.68 feet to a Concrete R/W Marker; thence South 01 Degrees 09 Minutes 08 Seconds West a distance of 160.31 feet to a Concrete R/W Marker; thence North 84 Degrees 08 Minutes 59 Seconds West a distance of 368.83 feet to a Concrete R/W Marker; thence along a curve to the left having an arc length of l 005.91 feet with a radius of 4079.72 feet, said arc having a chord that bears South 81 Degrees 46 Minutes 46 Seconds West, having a chord length of 1003 .3 7 feet to a Concrete R/W Marker; thence South 15 Degrees 17 Minutes 03 Seconds East a distance of 60.00 feet to a Concrete R/W Marker; thence along a curve to the left having an arc length of 355.22 feet with a radius of 4019.72 feet, said arc having a chord that bears South 72 Degrees 11 Minutes 03 Seconds West, having a chord length of355.l l feet to a point; thence leaving said right-of-way onto the property ofFatherson Partnership Two (Deed Book 8950, Page 126) North 04 Degrees 20 Minutes 39 Seconds West a distance of 449.01 feet to a point; thence North 49 Degrees 12 Minutes 54 Seconds West a distance of 118.3 7 feet to a point; thence North 35 Degrees 33 Minutes 13 Seconds East a distance of 163 .92 feet to a point; thence North 20 Degrees 33 Minutes 31 Seconds East a distance of 179.90 feet to a point; thence North 00 Degrees 32 Minutes 11 Seconds West a distance of 130.00 feet to a point; thence North 10 Degrees 49 Minutes 41 Seconds West a distance of 375.54 feet to a point on the southerly rightof-way of proposed Green Gap Road; thence continuing along said right-of-way along a curve to the left having an arc length of 22.05 feet with a radius of 321.35 feet, said arc having a chord that bears North 63 Degrees 43 Minutes 04 Seconds East, having a chord length of 22.05 feet to a point; thence continuing along said right-of-way North 61 Degrees 45 Minutes 07 Seconds East a distance of 218.64 feet to the Point of Beginning.

Said Tract or Parcel having an area of 30.6± acres more or less.


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EXHIBIT B Roadway Legal Description


BEGINING at a point on the easterly right-of-way of Georgetown-Ooltewah Highway (R/W Varies) at a point 507.08 feet southerly of the southerly right-of-way of Green Gap Road (R/W Varies at this point); thence leaving said right-of-way onto the property of Fatherson Partnership Two the following calls South 87 Degrees 49 Minutes 42 Seconds East a distance of 356.42 feet to a point; thence along a curve to the right having an arc length of 81.09 feet with a radius of 230.00 feet, said arc having a chord that bears South 77 Degrees 43 Minutes 41 Seconds East, having a chord length of 80.67 feet to a point; thence South 67 Degrees 37 Minutes 41 Seconds East a distance of 400.21 feet to a point; thence along a curve to the left having an arc length of 64.89 feet with a radius of 170.00 feet, said arc having a chord that bears South 78 Degrees 33 Minutes 49 Seconds East, having a chord length of 64.50 feet to a point; thence South 89 Degrees 29 Minutes 57 Seconds East a distance of 169.96 feet to a point; thence along a curve to the left having an arc length of 181.64 feet with a radius of 170.00 feet, said arc having a chord that bears North 59 Degrees 53 Minutes 28 Seconds East, having a chord length of 173.12 feet to a point; thence with a reverse curve to the right having an arc length of 123.32 feet with a radius of 230.00 feet, said arc having a chord that bears North 44 Degrees 38 Minutes 27 Seconds East, having a chord length of 121.85 feet to a point; thence with a reverse curve to the left having an arc length of 35.33 feet with a radius of 25.00 feet, said arc having a chord that bears North 19 Degrees 30 Minutes 49 Seconds East, having a chord length of 32.46 feet to a point; thence North 20 Degrees 58 Minutes 27 Seconds West a distance of 10.83 feet to a point; thence along a curve to the left having an arc length of 66.76 feet with a radius of85.00 feet, said arc having a chord that bears North 43 Degrees 28 Minutes 27 Seconds West, having a chord length of 65.06 feet to a point on the southern right-of-way of Green Gap Road (30' R/W); thence along the southerly right-of-way of Green Gap Road the following calls South 65 Degrees 57 Minutes 31 Seconds East a distance of 142.85 feet to a point; thence South 65 Degrees 57 Minutes 54 Seconds East a distance of 114.51 feet to a point; thence along a curve to the right having an arc length of 79.97 feet with a radius of 585.00 feet, said arc having a chord that bears South 61 Degrees 47 Minutes 02 Seconds East, having a chord length of 79.91 feet to a point; thence South 56 Degrees IO Minutes IO Seconds East a distance of 28.66 feet; thence along a curve to the left having an arc length of249.34 feet with a radius of 615.00 feet, said arc having a chord that bears South 67 Degrees 47 Minutes 02 Seconds East, having a chord length of 247.63 feet to a point; thence with a reverse curve to the right having an arc length of 103.13 feet with a radius of 585.00 feet, said arc having a chord that bears South 74 Degrees 20 Minutes 54 Seconds East, having a chord length of 102.99 feet to a point; thence South 69 Degrees 17 Minutes 53 Seconds East a distance of 63.01 feet to a point at the end of Green Gap Road right-of-way; thence North 24 Degrees 02 Minutes 44 Seconds East a distance of 33.26 feet to a point at the end of Green Gap Road and the beginning of the proposed extension of Green Gap Road; thence along the proposed Right-of-way the following calls South 71 Degrees 07 Minutes 27 Seconds East a distance of 126. 73 feet to a point; thence along a curve to the left having an arc


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length of 214.95 feet with a radius of 261.35 feet, said arc having a chord that bears North 85 Degrees 18 Minutes 50 Seconds East, having a chord length of 208.94 feet to a point; thence North 61 Degrees 45 Minutes 07 Seconds East a distance of216.43 feet to a point at the end of the proposed Green Gap Road extension at the property line of Morgan (Deed Book 6306, Page 475); thence along the property line of Morgan South 4 7 Degrees 22 Minutes 04 Seconds East a distance of 1.83 feet to a point.; thence South 56 Degrees 42 Minutes 23 Seconds East a distance of25.38 feet to a point; thence South 12 Degrees 00 Minutes 06 Seconds East a distance of 37.46 feet to a point to the end of the proposed right-of-way of Green Gap Road; thence leaving the property line of Morgan onto the proposed southerly right-of-way of Green Gap Road the following calls South 61 Degrees 45 Minutes 07 Seconds West a distance of 218.64 feet to a point; thence along a curve to the right having an arc length of22.05 feet with a radius of 321.35 feet, said arc having a chord that bears South 63 Degrees 43 Minutes 04 Seconds West, having a chord length of 22.05 feet to a point; thence continuing along a curve to the right having an arc length of 234.81 feet with a radius of 321.35 feet, said arc having a chord that bears South 86 Degrees 36 Minutes 59 Seconds West, having a chord length of229.62 feet to a point; thence North 72 Degrees 27 Minutes 03 Seconds West a distance of 138.16 feet to a point; thence North 69 Degrees 17 Minutes 53 Seconds West a distance of 63.01 feet to a point; thence along a curve to the left having an arc length of 97.84 feet with a radius of 555.00 feet, said arc having a chord that bears North 74 Degrees 20 Minutes 54 Seconds West, having a chord length of97.71 feet to a point; thence with a reverse curve to the right having an arc length of 261.50 feet with a radius of 645.00 feet, said arc having a chord that bears North 67 Degrees 47 Minutes 02 Seconds West, having a chord length of 259.71 feet to a point; thence North 56 Degrees 08 Minutes 32 Seconds West a distance of 27.77 feet to a point; thence along a curve to the left having an arc length of75.87 feet with a radius of 555.00 feet, said arc having a chord that bears North 61 Degrees 47 Minutes 02 Seconds West, having a chord length of 75.81 feet to a point; thence along a curve to the left having an arc length of 252.26 feet with a radius of 170.00 feet, said arc having a chord that bears South 71 Degrees 47 Minutes 24 Seconds West, having a chord length of229.74 fee to a point; thence with a reverse curve to the right having an arc length of245.75 feet with a radius of230.00 feet, said arc having a chord that bears South 59 Degrees 53 Minutes 28 Seconds West, having a chord length of 234.23 feet to a point; thence North 89 Degrees 29 Minutes 57 Seconds West a distance of 169.96 feet to a point; thence along a curve to the right having an arc length of87.80 feet with a radius of 230.00 feet, said arc having a chord that bears North 78 Degrees 33 Minutes 49 Seconds West, having a chord length of 87.26 feet to a point; thence North 67 Degrees 37 Minutes 41 Seconds West a distance of 400.21 feet; thence along a curve to the left having an arc length of 59.93 feet with a radius of 170.00 feet, said arc having a chord that bears North 77 Degrees 43 Minutes 41 Seconds West, having a chord length of 59.62 feet to a point; thence North 87 Degrees 49 Minutes 42 Seconds West a distance of 358.01 feet to a point on the easterly right-of-way of Georgetown-Ooltewah Highway; thence along said highway along a curve to the right having an arc length of 60.03 feet with a radius of 1450.00 feet, said arc having a chord that bears North 03 Degrees 41 Minutes 32 Seconds East, having a chord length of 60.02 feet to a point to the POINT OF BEGINNING.

Said Tract or Parcel having an area of 3 .3 7 acres more or less.

Seller --- Buyer __ _ Buyer ---

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EXHIBIT C Drawing

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AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE

THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE (this "Agreement") is made this __ day of November, 2011, (the "Effective Date") by and between FATHERSON PARTNERSHIP TWO, a Tennessee general partnership ("Seller"), and HAMILTON COUNTY BOARD OF EDUCATION, a political subdivision of the State of Tennessee and HAMILTON COUNTY, TENNESSEE, a political subdivision of the State of Tennessee (collectively, "Buyer").

RECITALS

Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, certain real property, consisting of (i) a tract consisting of approximately 30.6 acres, more particularly described on Exhibit A, attached to and incorporated in this Agreement, together with all improvements thereon and all rights, privileges, and easements appurtenant thereto (the "School Board Property"), located near 8830 Green Gap Road, Hamilton County, Tennessee; and (ii) a tract ofland consisting of approximately 3 .3 7 acres from Ooltewah-Georgetown Road to Green Gap Road and then along Green Gap Road to the School Board Property, as more particularly described on Exhibit B (the "Roadway"); the School Board Property and the Roadway shall be collectively referred to in this Agreement as the 'Property").

NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Purchase and Sale of Property. Seller hereby agrees to sell, convey and transfer to Buyer, and Buyer hereby agrees to purchase, fee simple title to the Property free and clear of all liens, claims, and encumbrances whatsoever, except as specifically approved by Buyer, subject to the terms and conditions of this Agreement.

2. Purchase Price. The purchase price of the Property shall be $875,000 (the "Purchase Price") which shall be paid in immediately available funds at the Closing (as defined in this Agreement).

3. Additional Agreements. At such time as the Buyer commences construction of the school on the School Board Property, Buyer agrees, at its sole cost and expense, to complete the following construction projects ("Conslrnction Projects"):

(a) Buyer shall construct a sixty foot (60') wide access road ("New School Road") in the Roadway from Ooltewah-Georgetown Road to Green Gap Road and than along Green Gap Road to the School Board Property on Exhibit C, in accordance with the public road standards of Hamilton County, Tennessee and the New School Road shall be dedicated to Hamilton County, Tennessee as a public Road. In connection with the construction of the New School Road, Buyer shall install all necessary drainage culverts. Buyer shall grant to Seller a non-exclusive ingress

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and egress easement ("Access Road Easement") across the portion of the New School Road located on the Roadway until the New School Road has been dedicated and accepted as a public road.

(b) Along the entire length of the New School Road, Buyer shall construct and install ("Utility Installation") an eight-inch (8") water line, and install or arrange for the installation of, telephone, gas, electricity, cable, internet, fiber optics and other utilities, all in accordance with Hamilton County, Tennessee building code standards.

The foregoing described Construction Projects shall be completed by Buyer no later than thirty-six (36) months from the date the Buyer acquires the Property ("Completion Deadline"). Buyer's obligation to complete the Construction Projects is subject to the availability of funding and Buyer covenant to use its best efforts obtain the necessary funding to complete the Construction Projects prior to the Completion Deadline. Seller and Buyer understand and agree that this Section 3 of the Agreement shall survive the Closing and shall continue in full force and effect until the Construction Projects are completed and ready for use.

4. Earnest Money. Buyer shall pay to Pioneer Title Agency, Inc., 513 Georgia A venue, Chattanooga, Tennessee ("Title Agent") Ten Thousand Dollars ($10,000) earnest money ("Earnest Money"), which Title Agent shall hold in escrow. The Earnest Money and all interest thereon shall be applied at the Closing toward the Purchase Price of the Property. The Earnest Money and all interest earned thereon shall be returned to Buyer if the Closing does not take place because Buyer exercises Buyer's rights under Sections 8. 9, or 10, or because any of the conditions set forth in Section 11 are not satisfied or if the Closing does not take place due to the fault of Seller. If the Closing does not take place due to the fault of Buyer (other than Buyer exercising Buyer's rights under Sections 8, 9. or 10 of this Agreement), the Earnest Money and all interest earned thereon shall be paid to Seller as liquidated damages and such payments shall be Seller's sole and exclusive remedy against Buyer.

5. Option Property. Buyer acknowledges that Seller has informed the Buyer that the Seller does not own, but has under option, approximately thirteen (13) acres of property located along Ooltewah-Georgetown Road designated as map parcel no. 114-017, 114-017.01 and 114-017.03 ("Option Property"). A portion of the Roadway is located in the Option Property. Seller agrees to use its best efforts to close on the Option Property simultaneously with the sale of the Property to Buyer. If Seller is unable to close on the Option Property on or before the proposed Closing, Seller shall notify the Buyer and the Title Agent shall return the $10,000 Earnest Money to Buyer, this Agreement shall terminate and neither party shall have any further rights, duties or obligations under this Agreement.

6. Closing. The closing of the purchase and sale of the Property shall take place at the offices of Title Agent on or before December 9, 2011, or at such other time and place as shall be mutually agreed upon by the parties (the "Closing").

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7. Warranty Deed. Seller shall convey good and marketable fee simple title to the Property, to Hamilton County, Tennessee, a political subdivision of the State of Tennessee by limited warranty deed, which shall warrant title to the Property to be free and clear of all liens, charges, easements, covenants, encumbrances, defects and restrictions, except (i) real estate taxes not yet due; (ii) covenants, conditions and restrictions, rights of way, and easements ofrecord, if any, and (iii) encumbrances which do not materially or adversely affect Buyer's intended use of the Property ("Permitted Encumbrances").

8. Survey. Buyer may, at its sole cost and expense, retain a surveyor licensed in the State of Tennessee to prepare an ALTA-ASCM survey of the Property, which survey shall set forth the legal description of the Property to be incorporated into the limited warranty deed for the Property. If the survey shows easements, encroachments or other conditions, other than Permitted Encumbrances, Buyer shall advise Seller of the existence of such condition and, if Seller does not undertake to cure such violation, Buyer shall have the right at any time prior to the Closing to terminate this Agreement, in which event Seller shall return to Buyer all Earnest Money delivered by Buyer to Seller under this Agreement, with accrued interest thereon, if any, and the parties shall be under no further duty or obligation to each other under this Agreement. Buyer shall submit a copy of such survey to Seller upon receipt by Buyer.

9. Title Insurance. Within fifteen (15) days from the date of this Agreement, Buyer may obtain, at Buyer's sole cost and expense, from Title Agent, an owner's title insurance commitment to issue a title insurance policy from the title company insuring Buyer's fee simple title to the Property to the extent of the Purchase Price, without exception for filed or untiled liens or any adverse claims or encumbrances of any nature whatsoever other than the Permitted Encumbrances. If such title insurance commitment shows exceptions, easements, encroachments or other conditions, other than Permitted Encumbrances, Buyer shall advise Seller of the existence of such condition and, if Seller does not undertake to cure such violation, Buyer shall have the right at any time prior to the Closing to terminate this Agreement, in which event Seller shall return to Buyer all Earnest Money delivered by Buyer to Seller under this Agreement, with accrued interest thereon, if any, and the parties shall be under no further duty or obligation to each other under this Agreement.

10. Inspection. Buyer and its authorized representatives shall have the right to go upon the Prope1iy for thirty (30) days from the full execution of this Agreement ("Inspection Period") for the purpose of making a general inspection of the Property, which shall include taking soil and water samples by drilling or other means, and making such other examinations, tests and surveys which Buyer may deem necessary or appropriate including, but not limited to, an environmental survey and assessment. All expenses of any such inspection shall be borne by Buyer. In the event the general inspection or any environmental assessment report reveals the existence on the Property of any condition which, in Buyer's reasonable discretion prior to expiration of the Inspection Period, would materially impair Buyer's use of the Property for the construction of a school, Buyer shall have the right to advise Seller of the existence of such condition and, if Seller does not undertake to cure such violation, Buyer shall have the right at any time prior to the expiration of Inspection Period to terminate this Agreement, in which event

Seller --$ Buyer !i2f_ BuyerJtvvL-

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Seller shall return to Buyer all Earnest Money delivered by Buyer to Seller under this Agreement, with accrued interest thereon, if any, and the parties shall be under no further duty or obligation to each other under this Agreement. Buyer agrees to restore any part of the Property inspected to its condition as it existed prior to the inspection and Buyer shall indemnify and hold the Seller harmless from any liability, claim or demand arising out of the acts or omissions of Buyer or its agents contractors, employees or other parties conducting activities on the Property on behalf of Buyer. This indemnity covenant shall survive the termination of this Agreement or the Closing, but only for a period of one (1) year after such termination or Closing.

11. Conditions to Closing.

(a) In addition to any other conditions provided in this Agreement, Buyer's obligations to close the purchase of the Property shall be expressly conditioned upon the following:

(i) There shall be no change in the status of title from that shown in the title insurance commitment approved by Buyer;

(ii) The representations and warranties of Seller set forth in this Agreement shall be true and correct on and as of the Closing; and

(iii) Seller shall have closed on the Option Property.

(b) Seller shall furnish any other documents or information in its possession relating to the Property, including soil reports, building permits, licenses, etc.

12. Representations and Warranties.

(a) Seller represents and warrants to Buyer that:

(i) Seller is a Tennessee general partnership, and has the full legal right, power and authority to execute and deliver this Agreement and to perform in accordance with its terms, without the consent or approval of any other person, firm, governmental agency or other entity;

(ii) This Agreement, when duly executed and delivered, will constitute the legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by equitable principles or bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors' rights generally; and

(iii) The execution and delivery of this Agreement by Seller does not contravene or conflict with, or cause a default under, any provision oflaw, rule or regulation of any applicable governmental authority, any applicable judgment or order of

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any court or governmental agency, or any agreement or instrument to which Seller is a party or by which Seller or the Property is bound or affected.

EXCEPT AS SET FORTH ABOVE, BUYER HEREBY EXPRESSLY ACKNOWLEDGES THAT IT HAS, OR WILL HAVE, PRIOR TO CLOSING, THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE PURCHASE OF THE PROPERTY. EACH BUYER REPRESENTS THAT IT IS KNOWLEDGEABLE ABOUT PROPERTIES SUCH AS THE PROPERTY AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S CONSULTANTS, AND THAT BUYER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, INSPECTIONS OF THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON SAME, AND, UPON CLOSING, SHALL ASSUME THE RISK OF ANY ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, THAT MAY NOT HA VE BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS ACQUIRING THE PROPERTY ON AN AS IS, WHERE IS AND WITH ALL FAULTS BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE.

(b) Each Buyer represents and warrants to Seller that:

(i) Each Buyer is a political subdivision of the State of Tennessee and has the full legal right, power and authority to execute and deliver this Agreement and to perform in accordance with its terms, without the consent or approval of any other person, firm, governmental agency or entity;

(ii) This Agreement, when duly executed and delivered, will constitute the legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by equitable principles or bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors' rights generally;

(iii) The execution and delivery of this Agreement by Buyer does not contravene or conflict with, or cause any default under, any provision of law, rule or regulation of any applicable governmental authority, any applicable judgment or order of any court or governmental agency, or any agreement or instrument to which Buyer is a party or by which Buyer is bound or affected; and

(iv) Buyer shall use the Property solely for the purpose of a public grade school or middle school, and for no other purpose, for a period of not less than twenty (20) years from the date of Closing. IT IS AGREED AND UNDERSTOOD THAT THE

Seller -%----- Buyer~ 5

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TERMS AND PROVISIONS OF THIS SECTION 12 b (iv) SHALL EXPRESSLY SURVIVE THE CLOSING AND SHALL NOT MERGE THEREIN AND SHALL BE IN CORPORA TED INTO THE LIMITED WARRANTY DEED TO BE DELIVERED BY SELLER TO BUYER AT CLOSING.

13. Action to be Taken at Closing.

(a) At the Closing, Seller shall deliver to Buyer the following:

(i) A fully executed limited warranty deed in proper form for recording, which conveys to Buyer fee simple title to the Property; and

(ii) Such other documents or instruments as may be reasonably requested by Buyer or Title Agent to consummate the transactions contemplated by this Agreement, including the sale of the Property to Buyer.

(b) At the Closing, Buyer shall deliver to Seller the following:

(i) The Purchase Price for the Property, less Earnest Money and interest accrued thereon, if any, in cash or other immediately available funds; and

(ii) Such other documents or instruments as may be reasonably requested by Seller or Title Agent to consummate the transactions contemplated by this Agreement, including the sale of the Property to Buyer.

14. Expenses. The expenses of this transaction shall be paid as follows:

(a) Seller shall pay the cost of the preparation of the limited warranty deed;

(b) Buyer shall pay for the title insurance policy and examination;

( c) Buyer shall pay for the recordation of the limited warranty deed, including any transfer taxes;

( d) Buyer shall pay for the survey, if any;

(e) Real estate taxes, insurance expenses, utility expenses, and other similar expenses and charges shall be apportioned between the parties as of the date of Closing;

(f) Seller and Buyer shall divide equally all closing fees and out-of-pocket expenses charged by the Title Agent in connection with the Closing; and

Seller __.£_ - Buyer~ 6

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(g) Except as set forth in this Section 14 and this Agreement, Seller and Buyer shall each pay the expenses incurred by them, respectively, in connection with the Closing and the transactions contemplated by this Agreement.

15. Possession. Possession of the Property shall be delivered to Buyer at the Closing. All risk of loss or damage to the Property shall remain with Seller until the Closing. Seller shall remove from the Property all of Seller's personal property prior to the Closing, if any.

16. Reserved.

1 7. Remedies.

(a) If (i) Buyer shall fail to perform or comply with any of the terms, covenants or agreements required by this Agreement to be performed or complied with by Buyer including but not limited to completion of the Construction Projects in a timely manner, or if (ii) the purchase and sale of the Property are otherwise not consummated in accordance with the terms and provisions of this Agreement due to a default by Buyer under this Agreement, and in either of such events the Earnest Money shall be refunded to Seller immediately upon request, and Seller may at its option either (A) compel Buyer to acquire the Property from Seller and complete the Construction Projects by a suit for specific performance, and, if Seller prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, (B) sue Buyer for damages incurred by Seller resulting either directly or indirectly from Buyer's default under this Agreement as described in this Section 17(a), and, if Seller prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, or (C) declare this Agreement terminated, in which event the Earnest Money shall be distributed to Seller immediately upon request of Seller and all rights and obligations of the parties under this Agreement shall expire (except as otherwise expressly provided in this Agreement), and this Agreement shall become null and void.

(b) If (i) Seller shall fail to perform or comply with any of the terms, covenants or agreements required by this Agreement to be performed or complied with by Seller, or if (ii) the purchase and sale of the Property are otherwise not consummated in accordance with the terms and provisions of this Agreement due to a default by Seller under this Agreement, then and in either of such events the Earnest Money shall be refunded to Buyer immediately upon request, and Buyer may, as its sole and exclusive remedy, at law or in equity, at its option either (A) compel Seller to convey the Property to Buyer by a suit for specific performance, and, if Buyer prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, (B) sue Seller for damages to Buyer resulting either directly or indirectly from Seller's default under this Agreement as described in this Section 17(b), and, if Buyer prevails in such suit, to recover all costs incidental to such suit, including reasonable attorneys' fees, or (C) declare this Agreement terminated, in which event the Earnest Money shall be refunded to Buyer immediately upon request of Buyer, all rights and obligations of the parties under this Agreement shall expire (except as otherwise expressly provided in this Agreement), and this Agreement shall become null and void.

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18. Broker. The parties each warrant and represent to each other that no fee is due to any broker in connection with this Agreement and the transactions described in this Agreement. The parties agree to mutually hold each other haimless from and against all claims for brokerage commissions asserted by any party as a result of the sale and purchase of the Property.

19. Survival. The covenants, representations and warranties of the parties in this Agreement shall be effective on the date of this Agreement and as of the Closing and will survive the Closing.

20. Assignment. This Agreement and all rights and interests in this Agreement shall not be assignable by either party without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.

21. Notice. All notices, consents and other communications hereunder shall be in writing and shall be personally delivered or mailed by overnight courier service or by first class, registered or certified mail, return receipt requested, postage prepaid as follows:

(a) If to Seller, to the address stated below, or to such address as may have been furnished by Seller to Purchaser in writing:

Fatherson Partnership Two P.O. Box 4201 Chattanooga, Tennessee 37405 Attn: Julian B. Bell

WITH COPIES TO:

Richard T. Hudson Chambliss, Bahner & Stophel, P.C. 1000 Tallan Building Two Union Square Chattanooga, Tennessee 37402-2500 Facsimile Number: (423) 508-1230

(b) If to Purchaser, to the address stated below, or to such other address as may have been furnished by Purchaser to Seller in writing:

Seller~

To: Hamilton County Board of Education Auxilliary Services 2501 Dodds Avenue Chattanooga, Tennessee 37407 Attn: Gary Waters

Buyer.Z--

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WITH A COPY TO:

D. Scott Bennett, Attorney Third Floor, Pioneer Building 801 Broad Street Chattanooga, Tennessee 37402

To: Hamilton County, Tennessee Real Property Office 123 E. ;th Street Chattanooga, Tennessee 37402 Attn: Real Property Manager

WITH A COPY TO:

County Attorney's Office 201 E. ih Street 204 Courthouse Chattanooga, Tennessee 37402 Attn: Rheubin Taylor

Any such notice, request, consent or other communications shall be deemed received and effective at such time as it is personally delivered by acknowledged hand or courier delivery or on the next business day after it is mailed, as the case may be.

22. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement, and their respective heirs, legal representatives, successors and assigns.

23. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement. No amendment, waiver or modification of this Agreement shall be binding upon either party unless in writing and signed by the parties hereto.

24. Payment on Demand. All payments required under this Agreement, unless otherwise specified, shall be due and payable on demand.

25. Controlling Law. This Agreement has been entered into and shall be governed by and construed in accordance with the laws of the State of Tennessee.

26. Time is of the Essence. Time is of the essence in this Agreement

Seller ---rJ:5-[Signature Page(s) Attached]

Buyer~ 9

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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and year first above written.

Seller -..LJ4-.

SELLER:

FATHERSON PARTNERSHIP TWO, a Tennessee general partnership

By ~ rf~ Jt~ General Partner

BUYER:

HAMILTON COUNTY BOARD OF EDUCATION

By: Name:

HAMILTON COUNTY, TENNESSEE

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EXHIBIT A Property

School Board Property Legal Description


BEGINNING at a point at the end of the proposed southerly right-of-way of Green Gap Road on the westerly property line of Morgan (Deed Book 6306, Page 478); thence along the property line of Morgan the following calls South 12 Degrees 00 Minutes 06 Seconds East a distance of 37.96 feet to a 1/2" rebar found; thence South 50 Degrees 57 Minutes 04 Seconds East a distance of 146.03 feet to a 1/2" rebar found; thence South 48 Degrees 44 Minutes 21 Seconds East a distance of 114.10 feet to a 1/2" rebar found; thence South 45 Degrees 18 Minutes 36 Seconds East a distance of 325 .24 feet to a point; thence South 78 Degrees 28 Minutes 57 Seconds East a distance of 57. 78 feet to a point; thence South 82 Degrees 50 Minutes 04 Seconds East a distance of 193.27 feet to a point in the centerline of Varnell Creek; thence following the centerline meanderings of said creek 1966± feet to the northerly right-of-way of U.S. Interstate Highway No. 75 (R/W Varies), said line having a survey tie line between the beginning and ending points of South 70 Degrees 28 Minutes 37 Seconds East a distance of 1691.76 feet to a point; thence along said right-of-way the following calls North 87 Degrees 55 Minutes 54 Seconds West a distance of 771.68 feet to a Concrete R/W Marker; thence South 01 Degrees 09 Minutes 08 Seconds West a distance of 160.31 feet to a Concrete R/W Marker; thence North 84 Degrees 08 Minutes 59 Seconds West a distance of 368.83 feet to a Concrete R/W Marker; thence along a curve to the left having an arc length of 1005.91 feet with a radius of 4079.72 feet, said arc having a chord that bears South 81Degrees46 Minutes 46 Seconds West, having a chord length of 1003. 3 7 feet to a Concrete R/W Marker; thence South 15 Degrees 17 Minutes 03 Seconds East a distance of 60.00 feet to a Concrete R/W Marker; thence along a curve to the left having an arc length of 355.22 feet with a radius of 4019. 72 feet, said arc having a chord that bears South 72 Degrees 11 Minutes 03 Seconds West, having a chord length of 3 5 5 .11 feet to a point; thence leaving said right-of-way onto the property of Fatherson Partnership Two (Deed Book 8950, Page 126) North 04 Degrees 20 Minutes 39 Seconds West a distance of 449.01 feet to a point; thence North 49 Degrees 12 Minutes 54 Seconds West a distance of 118.37 feet to a point; thence North 35 Degrees 33 Minutes 13 Seconds East a distance of 163.92 feet to a point; thence North 20 Degrees 33 Minutes 31 Seconds East a distance of 179.90 feet to a point; thence North 00 Degrees 32 Minutes 11 Seconds West a distance of 130.00 feet to a point; thence North 10 Degrees 49 Minutes 41 Seconds West a distance of 375.54 feet to a point on the southerly rightof-way of proposed Green Gap Road; thence continuing along said right-of-way along a curve to the left having an arc length of22.05 feet with a radius of 321.35 feet, said arc having a chord that bears North 63 Degrees 43 Minutes 04 Secohds East, having a chord length of 22.05 feet to a point; thence continuing along said right-of-way North 61 Degrees 45 Minutes 07 Seconds East a distance of 218.64 feet to the Point of Beginning.

Said Tract or Parcel having an area of 30.6± acres more or less.

Seller ---¢..- Buyer_:i{,[_ Buyer~ 08730_01/0401/REE-1100028_ 12

EXHIBIT B Roadway Legal Description


BEGINING at a point on the easterly right-of-way of Georgetown-Ooltewah Highway (R/W Varies) at a point 507 .08 feet southerly of the southerly right-of-way of Green Gap Road (R/W Varies at this point); thence leaving said right-of-way onto the property ofFatherson Partnership Two the following calls South 87 Degrees 49 Minutes 42 Seconds East a distance of 356.42 feet to a point; thence along a curve to the right having an arc length of 81.09 feet with a radius of 230.00 feet, said arc having a chord that bears South 77 Degrees 43 Minutes 41 Seconds East, having a chord length of 80.67 feet to a point; thence South 67 Degrees 37 Minutes 41 Seconds East a distance of 400.21 feet to a point; thence along a curve to the left having an arc length of 64.89 feet with a radius of 170.00 feet, said arc having a chord that bears South 78 Degrees 33 Minutes 49 Seconds East, having a chord length of 64.50 feet to a point; thence South 89 Degrees 29 Minutes 57 Seconds East a distance of 169.96 feet to a point; thence along a curve to the left having an arc length of 181.64 feet with a radius of 170.00 feet, said arc having a chord that bears North 59 Degrees 53 Minutes 28 Seconds East, having a chord length of 173.12 feet to a point; thence with a reverse curve to the right having an arc length of 123.32 feet with a radius of 230.00 feet, said arc having a chord that bears North 44 Degrees 38 Minutes 27 Seconds East, having a chord length of 121.85 feet to a point; thence with a reverse curve to the left having an arc length of 35.33 feet with a radius of25.00 feet, said arc having a chord that bears North 19 Degrees 30 Minutes 49 Seconds East, having a chord length of 32.46 feet to a point; thence North 20 Degrees 58 Minutes 27 Seconds West a distance of 10.83 feet to a point; thence along a curve to the left having an arc length of 66.76 feet with a radius of 85.00 feet, said arc having a chord that bears North 43 Degrees 28 Minutes 27 Seconds West, having a chord length of 65.06 feet to a point on the southern right-of-way of Green Gap Road (30' R/W); thence along the southerly right-of-way of Green Gap Road the following calls South 65 Degrees 57 Minutes 31 Seconds East a distance of 142.85 feet to a point; thence South 65 Degrees 57 Minutes 54 Seconds East a distance of 114.51 feet to a point; thence along a curve to the right having an arc length of 79.97 feet with a radius of 585.00 feet, said arc having a chord that bears South 61 Degrees 47 Minutes 02 Seconds East, having a chord length of 79.91 feet to a point; thence South 56 Degrees 10 Minutes 10 Seconds East a distance of28.66 feet; thence along a curve to the left having an arc length of 249.34 feet with a radius of 615.00 feet, said arc having a chord that bears South 67 Degrees 47 Minutes 02 Seconds East, having a chord length of 247.63 feet to a point; thence with a reverse curve to the right having an arc length of 103.13 feet with a radius of 585.00 feet, said arc having a chord that bears South 74 Degrees 20 Minutes 54 Seconds East, having a chord length of 102.99 feet to a point; thence South 69 Degrees 17 Minutes 53 Seconds East a distance of 63.01 feet to a point at the end of Green Gap Road right-of-way; thence North 24 Degrees 02 Minutes 44 Seconds East a distance of 33.26 feet to a point at the end of Green Gap Road and the beginning of the proposed extension of Green Gap Road; thence along the proposed Right-of-way the following calls South 71 Degrees 07 Minutes 27 Seconds East a distance of 126.73 feet to a point; thence along a curve to the left having an arc

Seller#- Buyer~ Buye~ 08730_01/040lfREVil 00028_ 12

length of214.95 feet with a radius of261.35 feet, said arc having a chord that bears North 85 Degrees 18 Minutes 50 Seconds East, having a chord length of 208.94 feet to a point; thence North 61 Degrees 45 Minutes 07 Seconds East a distance of 216.43 feet to a point at the end of the proposed Green Gap Road extension at the property line of Morgan (Deed Book 6306, Page 475); thence along the property line of Morgan South 47 Degrees 22 Minutes 04 Seconds East a distance of 1.83 feet to a point.; thence South 56 Degrees 42 Minutes 23 Seconds East a distance of 25.38 feet to a point; thence South 12 Degrees 00 Minutes 06 Seconds East a distance of 37.46 feet to a point to the end of the proposed right-of-way of Green Gap Road; thence leaving the property line of Morgan onto the proposed southerly right-of-way of Green Gap Road the following calls South 61Degrees45 Minutes 07 Seconds West a distance of218.64 feet to a point; thence along a curve to the right having an arc length of22.05 feet with a radius of 321.35 feet, said arc having a chord that bears South 63 Degrees 43 Minutes 04 Seconds West, having a chord length of 22.05 feet to a point; thence continuing along a curve to the right having an arc length of 234.81 feet with a radius of 321.35 feet, said arc having a chord that bears South 86 Degrees 36 Minutes 59 Seconds West, having a chord length of 229.62 feet to a point; thence North 72 Degrees 27 Minutes 03 Seconds West a distance of 138.16 feet to a point; thence North 69 Degrees 17 Minutes 53 Seconds West a distance of 63.01 feet to a point; thence along a curve to the left having an arc length of 97.84 feet with a radius of 555.00 feet, said arc having a chord that bears North 74 Degrees 20 Minutes 54 Seconds West, having a chord length of 97.71 feet to a point; thence with a reverse curve to the right having an arc length of 261.50 feet with a radius of 645.00 feet, said arc having a chord that bears North 67 Degrees 47 Minutes 02 Seconds West, having a chord length of 259. 71 feet to a point; thence North 56 Degrees 08 Minutes 32 Seconds West a distance of 27. 77 feet to a point; thence along a curve to the left having an arc length of 75.87 feet with a radius of 555.00 feet, said arc having a chord that bears North 61 Degrees 47 Minutes 02 Seconds West, having a chord length of 7 5. 81 feet to a point; thence along a curve to the left having an arc length of 252.26 feet with a radius of 170.00 feet, said arc having a chord that bears South 71 Degrees 47 Minutes 24 Seconds West, having a chord length of 229. 7 4 fee to a point; thence with a reverse curve to the right having an arc length of 245.75 feet with a radius of 230.00 feet, said arc having a chord that bears South 59 Degrees 53 Minutes 28 Seconds West, having a chord length of 234.23 feet to a point; thence North 89 Degrees 29 Minutes 57 Seconds West a distance of 169.96 feet to a point; thence along a curve to the right having an arc length of 87.80 feet with a radius of 230.00 feet, said arc having a chord that bears North 78 Degrees 33 Minutes 49 Seconds West, having a chord length of 87.26 feet to a point; thence North 67 Degrees 37 Minutes 41 Seconds West a distance of 400.21 feet; thence along a curve to the left having an arc length of 59.93 feet with a radius of 170.00 feet, said arc having a chord that bears North 77 Degrees 43 Minutes 41 Seconds West, having a chord length of 59 .62 feet to a point; thence North 87 Degrees 49 Minutes 42 Seconds West a distance of 358.01 feet to a point on the easterly right-of-way of Georgetown-Ooltewah Highway; thence along said highway along a curve to the right having an arc length of 60.03 feet with a radius of 1450.00 feet, said arc having a chord that bears North 03 Degrees 41 Minutes 32 Seconds East, having a chord length of 60.02 feet to a point to the POINT OF BEGINNING.

Said Tract or Parcel having an area of 3 .3 7 acres more or less.

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resolutionresolutions.hamiltontn.gov/resolutions/2011/1011-26.pdf · october 19,2011 state of...

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