HomeMy WebLinkAboutA002 - Letter from ESSEX Corporation to Ames Jewish Congregation, execution of agreements 12, 1997 11 :4 2 IM Gk0 S a. WELGH No , 0038 P. 2i'1''
ESSEX CORPORATION
11606 Nicholas Street
Suite 100
Omaha,Nebraska 68154
(402) 431-0500
August 12, 1997
Ames Jewish Congregation
c/o Barry Nadler,Esquire
600 Fifth Street
Suite 301
Ames,Iowa 50010
Dear Barry: RE: Ames Senior Living
We had previously caused to be forwarded to you the following documents:
1. Cancellation Agreement;
2. Option Agreement; and
3. Easement Agreement.
Each of these documents calls for the execution by the Ames Jewish Congregation and the
Episcopal Parish of Ames ("Parish") of these agreements. Copies of those Agreements are
attached hereto as Exhibits A,B and C ("Agreements").
The Agreements contemplated signing prior to the closing of the sale of the property to Essex
Corporation as Trustee. It is our understanding that it is not possible to have the Parish execute
the Agreements today;therefore,Essex Corporation,as Trustee or its designee,hereby agrees to
execute the Agreements immediately upon receiving title to the property. You may rely upon the
contents of this letter.
Very t y yo
ESSEX CORPORATION
Bartholomew Votava
XAA '
12. 1997 11 :421Y Gkii0V 4�JEI GH I`di) 0038 P. 3/1?�
EXHIBIT A
CANCELLATION AGREEMENT
This Cancellation Agreement("Agreement"), made as of this day of
1997 between the Episcopal Parish of Ames ("Episcopal Parish") and the
Ames Jewish Congregation, Ames, Iowa ("Jewish Congregation").
RECITALS
On the 14th Day of November, 1977, the Episcopal Parish and the Jewish
Congregation entered into a certain easement agreement ("Easement Agreement")
which was filed of record with the Story County Recorder on November 21, 1977, at
Book 137, at Pages 657-662, a copy of which Easement Agreement is attached hereto
as Exhibit"A"and incorporated herein by this reference;
On the 3rd Day of September, 1993, the Episcopal Parish and the Jewish
Congregation entered into an Amendment to Easement Agreement ('Amendment")
which was filed of record with the Story County Recorder on September 13, 1993 as
Instrument No. 18811 and 18812 at Book 54,15, pages 191-200A, a copy of which
Amendment is attached hereto as Exhibit "B" and incorporated herein by this reference;
and
The Episcopal Parish and the Jewish Congregation desire to cancel the
Easement Agreement and the Amendment effective as of the date of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the Episcopal Parish and the Jewish Congregation agree as follows:
1. The Episcopal Parish and the Jewish Congregation agree that as of the
date of this Agreement, the Easement Agreement and the Amendment are hereby
cancelled, and the respective duties of the Episcopal Parish and the Jewish
Congregation are completely and entirely discharged. The Easement Agreement and
the Amendment are hereby null and void and of no further force and effect.
2. This Cancellation Agreement shill be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors, administrators,
successors and, except as herein provided, assigns. It is understood and agreed that
all understandings and agreements heretofore had between the parties are merged into
this Cancellation Agreement, which alone fully and completely expresses their
understanding.
3. This Cancellation Agreement shall be governed by and construed under
the laws of the State of Iowa.
AU�J. 12. 1997 11 :42AM GEM & WELCHPdi�, 0038 -P. 4/1'y`
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
upon the day and year first above written,
Episcopal Parish of Ames
By:
Ames Jewish Congregation, Ames,
Iowa
By:
075-0147-974113319
2
.aUG, 12. 19u7 11 :4211lvI GROSS & WELGH 110, 00v0 P. 5f 1''
EXHIBIT 6
OPTION AGREEMENT
This Option Agreement is made and entered into this ay of
1997, ("Agreement ) between the Episcopal Parish of Ames
("Owner") and the—Ames Jewish Congregation, Ames, Iowa ("Optionee").
INTRODUCTION
Owner is the owner of the real estate described on Exhibit A to this Agreement,
which real estate, together with any improvements now located thereon or to be located
thereon in the future and all rights, privileges and easements appurtenant thereto, is
referred to in this Agreement as the "Property-,, Optionee desires to acquire an option to
Purchase the Property upon the terms set forth in this Agreement ("Option"as described
in paragraph 1), and Owner is willing to grant such an Option to Optionee.
In consideration of the provisions of this Agreement, Owner and Optionee agree
as follows:
1. -QLal7 . Owner hereby grants to Optionee the sole, irrevocable
and exclusive Option to purchase the Property from Owner, upon and subject to the
conditions contained in this Agreement.
2. Term of Qo ion, The term of the Option shall commence twelve (12)
months from the date of this Agreement and shall continue until a date which is forty-
eight(48) months from the date of this Agreement,
dated
3- PayMent for Option. Optionee shall execute the Easement Agreement
,, 1997 by and between Owner and Optionee in consideration for
the term of the Option set forth in Paragraph 2. A copy of such Easement Agreement is
attached hereto at Exhibit 13 and incorporated herein by this reference.
4. E=Jd$& f Option. Optionee may exercise the Option by giving written
notice of such exercise to Owner at any time during the term of the Option. Such written
notice shall be deerned to have been given during the term of the Option if it is received
by Owner during the term of the Option or if it is sent to Owner by prepaid United States
certified mail, return receipt requested, during the term of the Option as evidenced by a
United States Postal Service postmark or receipt for certified mail. If such written notice
is sent to Owner by United States certified mail, it shall be sent to Owner's address set
forth in Paragraph 18.
b• .EX!?irat! . If the Option is not exercised pursuant to Paragraph
4, then the Option automatically shall expire at the end of the end of the term specified in
Paragraph 2-
RJf' 12, 1997 11 :431,M GEOSU & WELGH 110, 0038—P. 6/131
6. RUrchase Price, If Optionee exercises the Option,
for the Property shall be fifteen thousand dollars $15 then the Purchase Price
at the Closing. ( 000) payable by Optionee in cash
7. Survey. Optionee may conduct, at Optionee's expense, a current and
accurate survey of the Property, prepared and certified by a registered land surveyor. If
such survey discloses (a) any right-of-way, easement, or building set-back requirement
on or applicable to the Property which in Optionee's reasonable business judgment will
interfere with the development and use of the Property by Optionee; (b) any visible or
known encroachment or projection on the Property by structures, facilities, or
improvements on adjoining property; (c) any violation on the Property
p rty of building set-
back requirements or of use or other restriction contained in prior conveyances or in any
zoning ordinances, permits, authorizations, or regulations applicable to the Property; or
(d) any visible or known encroachment or projection on adjoining property by structures,
facilities, or improvements located on the Property, then, at the exclusive election of
Optionee, exercisable in its discretion, Optionee either (i) may complete the purchase of
the Property in its existing condition or(ii) at any time prior to the Closing, while any
condition referred to in clauses (a) through (d) of this sentence still exists, may declare its
exercise of the Option null and void. The performance of a survey as provided herein is
optional, and may be waived by Optionee.
8. Ii g. If Optionee exercises the Option, then within ten (10) days after the
date of such exercise Owner, at Optionee's expense, shall furnish to Optionee an
abstract of title ("Abstract") which shows marketable fee simple title to the Property in
Owner, free and clear of all liens, assessments, charges, claims, actions, encumbrances,
easements, rights-of-way, restrictions, and title exceptions of any kind whatsoever except
general ad valorem, real estate taxes not yet delinquent. Optionee shall have ten (10)
days to have the Abstract examined by its counsel, and if such Abstract discloses title
defects not expressly consented to by Optionee in this agreement, then Owner at its
expense promptly shall use its best efforts to remedy such title defects_ If Owner does
not so remedy such title defects within sixty (60) days after the date of such abstract
commitment, then, at the exclusive election of Optionee, exercisable in its absolute
discretion, Optionee either. (i) may complete the purchase of the Property and accept
such title thereto as Owner is able to convey without reduction of the purchase price
(unless such title defects are encumbrances or liens for an ascertainable amount, in
which case that amount may be deducted from the purchase price); (ii) may grant Owner
one or more extensions of the time within which Owner must remedy such title defects;
or(iii) whether or not any such extensions were granted by Optionee, at any time prior to
the Closing may declare its exercise of the Option null and void. Owner shall furnish to
Optionee its abstract or abstracts of title for bearing upon the Property for the purpose of
Optionee's construction of the Abstract, and Optionee shall return the abstracts to Owner
when the construction of the Abstract is complete,
Option Agreement
Page 2
UG. 12. 1997 11 :43nM {skGSu & WELCH NO, 00'?8`P. 7,'1';------
9 SlQtM If Optionee exercises the Option, then, unless Optionee has
exercised its right to declare the exercise of the Option null and void under the provisions
of any other paragraph of this Agreement, Owner shall sell the Property to Optionee,
Optionee shall purchase the Property from Owner, and the Closing of the purchase of
the Property (referred to in this Agreement as the "Closing"), shall take place within 30
days after the exercise of the Option, provided that if the Closing has not occurred within
six months after the exercise of the Option because one or more of such conditions
precedent has not been satisfied, then at the exclusive election of Optionee, exercisable
in its absolute discretion, Optionee either(i) may grant one or more extsi Closing or (0) whether or not any such extension were granted by 0ons of the
ptinee,ext en si at any time
prior to the Closing may declare its exercise of the Option null and void.
10. Deed. At the Closing, Owner shall execute and deliver to Optionee a
good and sufficient warranty deed, in recordable form, conveying to Optionee marketable
fee simple title to the Property free and clear of all liens, assessments, charges, claims,
actions, encumbrances, easements, rights-of-way, restrictions and title exceptions of any
kind whatsoever except general ad valorem real estate taxes not yet delinquent and
except any such title defects or other matters, if any, to which Optionee may have
consented to in writing.
11- LQS Msion. Optionee shall be entitled to exclusive possession of the
Property at the Closing.
12. Prora gmo General ad valorem real estate taxes on the Property shall be
prorated as of the Closing in accordance with local proration practices.
13. T;x'tamo1. The amount of any deed tax or revenue stamps (and any
other but similar fee or tax other than normal recording fees) which may become payable
in connection with the sale of the Property or the recording of the deed to the Property
shall be paid by Owner.
14. AaaLgOmQnt. Optionee shall have the right to assign this entire Agreement
and all of Optionee's right hereunder to anyone or other business entity. In the event of
such an assignment„ all references to "Optionee" in this Agreement thereafter shall mean
such assignee, and, upon the assumption by such assignee of Optionee's obligations (if
any) under this Agreement, Optionee shall have no further liability under this Agreement.
15. Sl2eqific Peiformanc?, Although Optionee has the right under various
circumstances to declare this Agreement or Optionee's exercise of the Option null and
void, such right shall not be Optionee'exclusive remedy in the event of a breach by
Option Agreement
Page 3
Us. 12. 1997 11 :4'-n1l {CROSS & WELGH No . 003)8:P. 8!1'~
Owner of any of Owner's obligations under this Agreement, and Optionee also shall have
available to it the remedy, among others, of an action for specific performance.
16. M]Ilftle Conies. Owner and Optionee may execute multiple copies of this
Agreement, each of which shall be an original for all purposes.
17• pding Ag m �f. This Agreement and the Option shall run with the
land covered hereby and shall be binding upon and inure to the benefit of Owner and
Optionee and their respective heirs, personal representatives, successors and assigns.
18. Notices. All notices required or permitted to be given under this Agreement
shall be in writing and either personally delivered or sent by prepaid United States
certified mail, return receipt requested, addressed as follows:
If to Optionee:
Copy to:
If to Owner_
Copy to:
Either party may change its address shown above by giving notice of such change to the
other party.
19- Brskff'-age, Optionee has not engaged or contracted with any broker or
salesman in connection with this Agreement or the Property. Owner shall pay all
brokerage fees or commissions which may become payable by reason of the execution
of this Agreement or the sale of the Property pursuant to this Agreement and shall hold
Optionee harmless from any such fee or commission.
Option Agreement
Page 4
BUG. 12. 1997 11 :40n GROSS & WELCH
20. Ri.5k of Loss_ Risk of loss with respect to the Property shall be on Owner
until the Closing_ In the event of any damage to or destruction of the Property after
election, exercisable in its absolute discretion, either(i) may compl Optionee's exercise of the Option but prior to the Closing, Optionee at its exclusivse of
ete the purcha the Property in its; existing condition and receive from Owner at the Closing any
insurance proceeds relating to such damage or destruction which have been received by
Owner and not expended to repair or restore the Property (of an assignment of the right
to receive such proceeds from the insurance company if they have not yet been paid) or
(ii) at any time prior to the Closing may declare its exercise of the Option null and void.
21. Szoverning Law. This Agreement shall be governed by the laws of the state
of Iowa.
22. Paraara h Titles. The paragraph titles in this Agreement are solely for
convenient reference and shall not be considered in the interpretation or application of
this Agreement.
2 3. Number and Gender. Where the context requires, all singular words in this
Agreement shall be construed to include their plural and all words of neuter gender shall
be construed to include the masculine and feminine forms of such words.
24. Ent-- 9r rr+Ant This document contains the entire Agreement between
Owner and Optionee with respect to the subject matter of this Agreement; and there are
no agreements, promises, assurances, representations, warranties, undertakings or
understandings, either written or oral, between Owner and Optionee concerning the
Property other than those set forth in this Agreement. No amendment of this Agreement
shall be effective or binding unless it is in writing and has been signed by both Owner
and Optionee.
IN WITNESS WHEREOF, Owner and Optionee have executed this Option Agreement
the day and year first above written.
Episcopal Parish of Ames
by
Its
Ames Jewish Congregation, Ames, Iowa
by
Option Agreement
Page 5
JUs, 1 , 1997 l I :44nivI �JkJSU WELCH I1iJ, 0038 F', 10i I3
Its
STATE OF IOWA )
) ss.
COUNTY OF STORY )
On this_ day of , 1997, before me a Notary Public in and for the
State and County aforesaid, personally appeared , who is personally
known to me and acknowledged that his signature on this Option is his voluntary act and
deed.
forth. Subscribed and sworn to before me on the day, month and year first above set
Notary Public
Commission Expires:
(Notarial Seal)
STATE OF IOWA )
) ss.
COUNTY OF STORY }
On this day of , 1997, before me a Notary Public in and for the
State and County aforesaid, personally appeared who is personally
known to me and acknowledged that his signature on this Option,is his voluntary act and
deed.
forth. Subscribed and sworn to before me on the day, month and year first above set
Notary Public
Commission Expires:
(Notarial Seal)
075-0147-97/#113339.07
Option Agreement
Page 6
4U�s, 12, 1997 11 :401 GROSS & WEL(,H NO. 00'3 s P. 11!13
EXHIBIT C
EASEMENT AGREEMENT
This Easement Agreement ("Agreement") made and entered into as of this
day of , 1997, by and between the Episcopal Parish of Ames
("Episcopal Parish") and the Ames Jewish Congregation, Ames, Iowa ("Jewish
Congregation"),
RECITALS
The Episcopal Parish owns and has title to the real property situated in Ames,
Story County, Iowa described on Exhibit A hereto, which exhibit is incorporated by
reference herein and made a part hereof("Lot 1 ),
The Jewish Congregation owns and has title to the real property situated in
Ames, Story County, Iowa described on Exhibit B hereto, which exhibit is incorporated
by reference herein and made a part hereof("Lot 2");
The Episcopal Parish desires to obtain the easements set forth in this Agreement
("Easements"), upon and over Lot 2, for the benefit of Lot 1, and the Jewish
Congregation desires to obtain the Easements upon and over Lot 1, for the benefit of
Lot 2.
AGREEMENT
THEREFORE, in consideration of the mutual promises of the Episcopal Parish
and the Jewish Congregation, each agrees as follows:
1. The Jewish Congregation, its assigns and successors, shall have access
to, and the right to use in common with the Episcopal Parish, its assigns and
successors, any parking lot now existing or at any time hereafter constructed on Lot 1
for the purpose of vehicular ingress and egress and parking thereon.
2. The Episcopal Parish, its assigns and successors, shall have access to,
and the right to use in common with the Jewish Congregation, its assigns and
successors, any parking lot now existing or at any time hereafter constructed on Lot 2
for the purpose of vehicular ingress and egress and parking thereon,
3. The Easements set forth in Paragraphs 1 and 2 shall be effective as of
the date of this Agreement and shall continue until such time that either party gives
twelve (12) months written notice of cancellation of such Easements to the other party,
Provided that such notice is given on or after a date thirty six (36) months after the
effective date hereof.
zUJ, 1�' 1997 11 :44n1 Gk+ S� & v`EL��H NO.
4. The Jewish Congregation does hereby establish and create in, upon and
over a parcel of land described on Exhibit C hereto, which exhibit is incorporated by
reference herein and made a part hereof("Parcel C") for the benefit of Lot 1 a non-
exclusive easement, right and privilege of use in common with the Episcopal Parish as
a joint driveway for vehicular ingress and egress thereon.
5. The Jewish Congregation and the Episcopal Parish agree to maintain any
parking lots now or hereafter existing on Lots 1 and 2 and Parcel C in a useable and
neat manner. The costs and expenses of maintaining such parking lots and Parcel C
shall be shared equally by the parties, except for any damage due to the negligence of
any person who has used any such Parcel pursuant to the authority of either party
hereto, in which case the party granting such use shall be liable for such damages.
6. Both the Episcopal Parish and the Jewish Congregation recognize that
utilities and appurtenants thereto ("Utilities") have been installed under Lots 1 and 2,
and each gives the other rights of ingress and egress for construction, maintenance,
operation or repair of the Utilities over Lot 1 and Lot 2 respectively as owned by them.
7. The Jewish Congregation, its assigns and successors, confirms that is
well seized in fee of Lot 2, and that it has the right to grant and convey these
Easements in the manner and form aforesaid, and that the Jewish Congregation, its
assigns and successors, shall warrant and defend said Easements against the lawful
claims and demands of all persons.
8. The Episcopal Parish, its assigns and successors, confirms that is well
seized in fee of Lot 1, and that it has the right to grant and convey these Easements in
the manner and form aforesaid, and that the Episcopal Parish, its assigns and
successors, shall warrant and defend said Easements against the lawful claims and
demands of all persons.
9. The Easements granted herein shall not be construed to vest any right,
title, or interest in any individual tenant or occupant now or hereafter leasing any portion
of Lots 1 and 2.
10. Invalidation of any provision of this Agreement by any judgment, court
order, or otherwise shall in no way affect any of the provisions hereof which shall
remain in full force and effect.
11. This Agreement shall be construed in accordance with the laws of the
State of Iowa.
Easement Agreement
Page 2
nUG. 12. 19y7 11 ;45n14 GTs'USQ. & WVELCH I10, 0038—P, 13/13
land,
12. Except as provided herein, the Easements are perpetual and run with the
IN WITNESS WHEREOF, The parties hereto have executed this agreement this
day of , 1997.
Episcopal Parish of Ames Ames Jewish Congregation,
Ames, Iowa
By By
Its President Its President
STATE OF IOWA )
)ss.
COUNTY OF STORY )
On this day of , 1997 before me personally came
who is personally known to me to be the identical person whose
name is affixed to the above instrument and acknowledged the instrument to be his
voluntary act and deed for the purpose therein stated.
My Commission Expires Notary Public
STATE OF IOWA )
)ss.
COUNTY OF STORY )
On this day of , 1997 before me personally came
who is personally known to me to be the identical person whose
name is affixed to the above instrument and acknowledged the instrument to be his
voluntary act and deed for the purpose therein stated.
Notary Public
My Commission Expires
075-0147-97*11344&09
Easement Agreement
Page 3