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HomeMy WebLinkAboutPZ24-0113 PZAPP for PRR c+Tv OV CITY OF TWIN FALLS TIV tN t•a1"1,S COMMUNITY DEVELOPMENT SERVICES RECEIVED P.O.Box1907 324 Hansen Street E 8 2024 Twin Falls,ID 83303 CITY OF TWIN FALLS I PH: 208-735-7267 tfplanning@tfid.org ENGINEERING DEPT. ZONING DISTRICT CHANGE AND ZONING MAP AMENDMENT(REZONE-10-14-1 thru 7)I Date of the Application: /0 y Z'7< Application No.: PZ24-0113 1000`.l) A. APPLICANT INFORMATION: Fee: $ a i d 1. Name of applicant: Ci m 2w*.C� t_.( P(,e-AI l2 1 4 Id `1�t 112-,j w Mailing Address: %. ` EZ J, Jre nAI-ve- City: I-A t&Wt, State: U t Zip: 04-1 Phone: C I Phone: E-mail: yj morie sen(off IM W rC4•ti a rn Applicant Signature: IWO 2. Name of Applicant's Representative Iif other than abd*: r N�A enr,, �>lnG• V a AVt�, I�tebcw I Mailing Address: cpy 0. (r�,', rrzr ,�1-e-, too City: Wilt 4 1Ir State: iA Zip: 93301 Phone: Cell Phone: Email Address: c_-�' 4,'h,Jo 6W L�60 ��vm� tr�t�• � �'� B. REQUEST INFORMATION: 1. The following is a request that the Real Property Located at(street address): and LEGALLY DESCRIBED as - e S U, NV-'I vtr ASrt �:/e i�, �•`'� �• be REZONED from I L� ZONING DESIGNATION to `4 ZONING DESIGNATION 2. Present use of property: �)k1G�Q��wu('� i_�➢Y ,la�i� t ®. !�� n `T' ' �w�� � t 3. Proposed Use of the Property: (t oYhVYW CAa,\ �1A�qn , , Off l Gt 1 Ivl�l �►' F w►��� C"1 4. Size of Land Area proposed for Rezone: /IV-12.=1c NOTE:A request for a Comprehensive Plan Amendment is required prior to a request that is NOT in conformance with the Comprehensive Plan. Cost of publication of an ordinance which implements this request is not included in the fee. The publication cost is the responsibility of the applicant. After ordinance approval by the City Council,the Times News will call the applicant with the cost and will publish only after receipt of payment.Your request is not final until publication of the implementing ordinance. Pursuant to State law,the implementing ordinance must be published within one month of passage to become effective. C. PRIOR TO ACCEPTANCE/SCHEDULING OF THE APPLICATION THE APPLICANT MUST PROVIDE ALL OF THE FOLLOWING INFORMATION: ZONINGDISTRICT CHANGE&ZONING GAPAMEND(REZDNQ)uAa1Ed 112-2024 V.)ilx CITY OF CITY OF TWIN FALLS TAV IN Bari" COMMUNITY DEVELOPMENT SERVICES P.O. Box 1907 324 Hansen Street E Twin Falls, ID 83303 PH: 208-735-7267 tfplanning@tfid.org ZONING DISTRICT CHANGE AND ZONING MAP AMENDMENT(REZONE-10-14-1 thru 7)) Date of the Application: /0 Application No.: Fee: $1000.00 A. APPLICANT INFORMATION: 1. Name of applicant: 61 aS f,W0.4 , I_L(, ('i�-/� I k)� `j�>12q h, Mailing Address: f. f;- C — -m �. sre— tlave- City: State: U T Zip: O Phone: Cell Phone: E-mail: j morie*lSe.n( C4 Applicant Signature: `2. Name of Applicant's Representative kdgik : FEW Enox,yyj,t­�,. �r1c . �' uGiVjd fist, Mailing Address: (.p21 0. 0,o1�. K. �S�e., /00 City: ��Win a��l i State: ',_Zip: U50 p Phone: Cell Phone: Email Address: d g,✓ ��(� 41vk-iin co I,-� B. REQUEST INFORMATION: 1. The following is a request that the Real Property Located at(street address): I v 12_, z ; 2 2 8 1,E 4a kc,s 0,tv a- t� and LEGALLY DESCRIBED as: j_e V-� `?}3 LS tp Sk.1 cA hi Sti,& -, C!U' D. be REZONED from �-U• ID ZONING DESIGNATION to ly ZONING DESIGNATION 2. Present use of property: unAey d"DI m uo JAsjo_ Own 3. Proposed Use of the Property: 00MVYuY (A(A, ?))_Van O0l Lk �6 — F�W11 (.r� 4. Size of Land Area proposed for Rezone: hVf2Y "C, 11 I — . NOTE:A request for a Comprehensive Plan Amendment is required prior to a request that is NOT in conformance with the Comprehensive Plan. Cost of publication of an ordinance which implements this request is not included in the fee. The publication cost is the responsibility of the applicant. After ordinance approval by the City Council,the Times News will call the applicant with the cost and will publish only after receipt of payment.Your request is not final until publication of the implementing ordinance. Pursuant to State law,the implementing ordinance must be published within one month of passage to become effective. C. PRIOR TO ACCEPTANCE/SCHEDULING OF THE APPLICATION THE APPLICANT MUST PROVIDE ALL OF THE FOLLOWING INFORMATION: ZONING DISTRICT CHANGE&ZONING MAP AMEND(REZONE)(updated 02.2024 ke).doc -i 1. The applicant must prove control of the property for which the request is being made by providing thefollowing: a. Copy of Warranty Deed, �►ti+►� 416Copy of Earnest Money Agreement of Contract of Sale, duly acknowledged by BOTH Buyer and Seller. 2. Property Owner Notification The applicant must provide a consolidated list of names and addresses of all property owners within the specified distance from the subject property perimeter as listed below. The Director of Planning and Zoning may require notification to additional areas which may be impacted by the proposed change. Zoning District of Subject Property Notification Distance G, SU I, R-1 VAR, R2, R4, RM, OS 500 Feet R-6, MHO-1, AP, CB, C1, CM, OT, RB, CSI 750 Feet M-1, M-2 1000 Feet The property owner mailing list may be obtained from either of the following: a) Twin Falls County Assessor's Office:630 Addison Avenue West,Twin Falls,ID83301OR b) ATitle Company of your choosing. The completed list of names, addresses,and parcel numbers must be submitted back to the Zoning& Development Department in order for your request to be scheduled for a public hearing. 3. A vicinity/area map to SCALE on an 8 V x 11" paper, of the subject property showing the following: a. Property lines b. Streets c. Existing zoning of subject property; d. Proposed zoning of subject property; e. Zoning district of the adjacent properties of subject property 4. Provide a Detailed Written Statement On A Separate Sheet Of Paper Containing: a. The reason for the request; b. A statement on: i. How the proposed zoning change relates to the Comprehensive Plan;and ii. Compatibility with the surrounding area, and iii. An explanation of the intended use/development of the property 5. Provide a legal metes and bounds description prepared and stamped by a Professional Land Surveyor for the property to be rezoned. Note:this is required in order for the application to be scheduled for a public hearing Planning and Zoning Application Refund Policies and Procedures A refund for a portion of the application fee may be granted, provided a written request is made by the applicant, requesting the withdrawal of the application, and is subject to the guidelines listed below: • 85%of application fee may be refunded if no staff application review has been completed. • 50%of application fee may be refunded once staff review has been completed. (within 35 days of Public Hearing) • No refund for permit applications withdrawn after Public Hearing Agenda has been posted. (within 48 hours of Public Hearing ZONING DISTRICT CHANGE&ZONING MAP AMEND(REZONE)(updated 02-2024 ke).doc -2 Application Process: 1. Contact the Planning&Zoning Department,735-7267 or 203 Main Avenue East,to determine basic zoning regulations and application procedures. 2. Submit the application with the required attachments and fees. (see application) (Milestone 1) 3. Staff reviews the completion of the application and the need for additional information if necessary. 4. Once staff has determined the application is complete and ready the request is scheduled for a public hearing. (Milestone 2) 5. Once scheduled staff submits the public hearing information to the Times News for publication. 6. A Public Notice Packet will be emailed to the applicant with instructions for mailing and signage posting deadlines. 7. The applicant is required to mail a copy of the public notice letter provided by the City of Twin Falls to each property owner within a specified perimeter of the property under review,and any additional area that may be impacted by the proposed change as determined by the Zoning Administrator. 8. The applicant is required to submit a signed Affidavit of Mailing and Posting to the Planning & Zoning Department as proof that the letters were mailed and the public notice sign was posted within the specified time(Note: If the mailing and posting requirements have not been met the request will be withdrawn from the agenda.) 9. A staff report regarding the applicants request, including staff analysis and recommendations,will be emailed to the applicant prior to the public hearing. (Milestone 3) 10. The public meeting is held at Twin Falls City Council Chambers, 203 Main Avenue East, beginning at 6:00 p.m.on the scheduled date. 11. At the public meeting,staff will present their analysis of the request and make recommendations as necessary for the Planning& Zoning Commission to consider. 12, The applicant, or applicant's representative,shall present the request to the commission.This person should be prepared to answer any questions the Planning&Zoning Commission may have,and address any concerns presented by the public at the time of the hearing. 13. The Planning&Zoning Commission will then deliberate and make a recommendation for approval to City Council, based on the evidence presented, and the recommendations made by the staff regarding the request. 14. The Public Notice process steps repeat for City Council. 15. City Council will hold a Public Hearing and make a decision based on the evidence presented at the hearing, staff recommendations and the recommendation from the Planning and Zoning Commission. 16. The applicant or any affected person(s)who appeared in person or in writing before the Commission may appeal the decision of the Commission to City Council, provided a completed Appeal application,with payment, is submitted to the Planning and Zoning Department within fifteen(15)days from the Commission's action. 17. Upon receipt of an appeal request due to the actions of the Commission, the City Council shall set a public hearing date, under the same provisions as the Commission hearing, to consider all information,testimony and the Commission's minutes of the public hearing to reach a decision to uphold,conditionally uphold,or overrule the decision of the Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ZONING DISTRICT CHANGE&ZONING MAP AMEND(REZONE)(updated 02-2024 ke).doc EHM Engineers, Inc. BUILDING THE FUTURE ON A FOUNDATION OF E%CELLE`:I_L REASON FOR REQUEST OF ZONING DESIGNATION CHANGE EHM Engineers, Inc. has been retained by Chasewood, LLC to prepare a rezone application package for submittal to the City of Twin Falls. The subject property is presently platted and identified as the "ASH STREET P.U.D." as described by Instrument #2003-010081. This planned unit development originated as part of Albertson's plans to develop and construct a new grocery store more than 20 years ago. Since that time, Albertson's ownership has sold from a strictly Idaho ownership entity to a larger conglomerate ownership based out-of-state. Any plans for new investment and development of a new grocery store have been postponed and ultimately have not come to fruition for this site. Therefore, we do not anticipate that a new, large sized, grocery store will be developed upon the subject property as originally intended by the P.U.D. as written in 2003. Therefore, as Albertson's considers sale of the property, the applicant has requested that the subject property be rezoned to the underlying base zone of C-1 according to the zoning maps and the future land use maps. The Comprehensive Plan supports this request in that this area has been identified for neighborhood commercial use and mixed use potential. Blue Lakes Blvd. is the primary north/south thoroughfare through the City of Twin Falls and provides for many C-1 land uses and property uses along its length. The consistent implementation of zoning that utilizes the centralized compact and more dense uses satisfies the Land Use Policy 2.3 as described on pg. 20 of the Comprehensive Plan. This rezone will provide that opportunity to the subject property. The surrounding properties have developed into retail business establishments provide service and sales to the residents of Twin Falls. Neighbors to the east include the Twin Falls Housing Authority which is a multi-family development that buffers the commercial uses along Blue Lakes Blvd. and Addison Ave. from the single family uses located even further to the ease and tn the north. The applicant proposes to use the subject property to continue to develop both retail and office building structures along the Blue Lakes Blvd. frontage. The property located east of the Ash Street (private drive) and Elm Street (public roadway) will consider retail, office, service, government, multi-family residential (5 units or more) uses described within the C-1 use descriptions. Chasewood, LLC has been involved with the development of the Jimmy Johns, Carl's Jr., Boot Barn, UPS Store and others within the immediate vicinity and intends to continue to attract such business operators to the Twin Falls market. Access is gained to and from the subject property via existing 621 North College Rd.,Suite 100 .Twin Falls, Idaho 83301 •[208]734-4888 •Fax(2081 734-6049 3501 W.Elder St.,Suite 100 •Boise,Idaho 93705 •T2081 386-9170 •Fax[2081 386-9076 IN THE FIELDS OF: PLANNING.SURVEYING.HIGHWAYS.WATER. SEWAGE. STRUCTURAL. SUBDIVISIONS. BRIDGES. ENVIRONMENTAL. QUALITY CONTROL. CONSTRUCTION MGMT_ Legal Description Twin Falls County, Idaho Being Lots 1 through 6, Block 1 as shown on that certain Map entitled "Ash Street, P.U.D.", recorded April 21, 2001 as Instrument No. 2001-010081 in the office of the County Recorder of Twin Falls County, Idaho, more particularly described as follows: Beginning at the Southwest Corner of said Lot 1 and being the REAL POINT OF BEGINNING; Thence, along the West Boundary of said Lot 1, Lot 2 and Lot 4, North 00°10'49" West 504.45 feet to the Northwest Corner of said Lot 4; Thence, along the Boundary of said Map, South 89°47'30" East 341.20 feet; Thence, continuing along said Boundary, North 00'10'54" West 191.30 feet; Thence, continuing along said Boundary, South 89'46'46" East 242.50 feet; Thence, continuing along said Boundary, South 00°11'00" East 584.17 feet; Thence, continuing along said Boundary, North 89°49'20" West 131.31 feet; Thence, continuing along said Boundary, South 00°10'54" East 175.00 feet; Thence, continuing along said Boundary, North 89°49'20" West 201.20 feet; Thence, continuing along said Boundary, North 00°10'54" West 28.00 feet; Thence, continuing along said Boundary, North 89°49'20" West 113.93 feet; Thence, continuing along said Boundary, North 00°05'52" West 35.79 feet; Thence, continuing along said Boundary, North 89°49'39" West 137.34 feet to said REAL POINT OF BEGINNING. Containing approximately 7.88 acres. End of Description 371-23 /Doc/Legal Descriptions/Property 1 of 1 Envelope ID:43EF60D2-B26A-40F6-8DFC-58A6E43C2DE2 AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of this 4th. day of October, 2024 ("Effective Date"), by and between Albertson's Stores Sub LLC, a Delaware limited liability company ("Seller"), and Chasewood, LLC, a Utah limited liability company or assigns ("Buyer"). RECITALS A. Seller owns that certain real property situated in the City of Twin Falls, County of Twin Fall, State of Idaho, more particularly described on Exhibit A attached hereto, including all appurtenances thereto ("Property"). The Property consists of approximately plus or minus Two Hundred Seventy Thousand Seventy-Two (±270,072) square feet of undeveloped land. The foregoing information is not a representation or warranty; Buyer shall have the opportunity to verify the exact size of the Property as part of Buyer's responsibilities during the Inspection Period set forth in Section 5.1 hereof. B. Seller desires to sell and Buyer desires to purchase the Property on the terms contained in this Agreement. AGREEMENT NOW,THEREFORE, in consideration of the above Recitals and for other good and valuable consideration, the receipt and sufficiency of that are hereby acknowledged, Seller and Buyer agree as follows: 1. Agreement; Escrow. 1.1 Purchase and Sale. Subject to and on the terms and conditions herein set forth, Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase and acquire from Seller, the Property. Buyer acknowledges and agrees that the Property shall not include any fixtures or equipment presently on the Property, which shall be removed by the Closing Date (defined later). 1.2 Escrow. The purchase and sale of the Property shall be accomplished through an escrow ("Escrow") that Seller has established or will establish with Fidelity National Title, 485 East Riverside Drive, Suite 200, Eagle ID 83761, Attention: Erin Quenzer, Commercial Escrow Officer, Direct: 208.377.3190, erin.guenzer@fnf.com, ("Escrow Agent" or "Title Company"). -4— PSA 7304Twin Falls,ID (Final) tvctupc 4LJ.•rjL-t vuv4-DLUM-gUr0-OUrL,-00N0t4Jl.6UtL 2. Consideration; Payment. b 2.1 Purchase Price. The purchase price that Buyer shall pay to Seller for the Property shall ("Purchase Price"). Buyer shall pay Seller the Purchase Price for the Property through Escrow at the Closing (defined later). The consideration from Buyer to Seller for the purchase of the Property includes the execution of the Use Restriction by Buyer and Seller (defined later). 2.2 Deposit. Within three (3) business days after the Effective Date of this Agreement,(i) Seller shall open an Escrow with the Escrow Agent covering the purchase and sale of the Property with Escrow Agent, and (ii) Seller shall deposit with Escrow Agent an executed copy of this Agreement. Escrow Agent may prepare and the parties shall promptly execute and return such reasonable and customary Escrow instructions consistent herewith, as Escrow Agent may require in order to clarify or restrict Escrow Agent's duties or liability hereunder. Such Escrow instructions shall not amend any portion of this Agreement. Within three (3) business days after the Effective Date of this Agreement, Buyer shall deposit with the Escrow Agent by wire transfer the amount of Twenty Thousand and no/100 Dollars ($20,000) ("Deposit"). The Escrow Agent shall forthwith deposit the Deposit in a federally-insured financial institution reasonably satisfactory to Buyer and Seller in an account in the name of Buyer. All interest earned on the Deposit shall be and become a part of the Deposit and shall be handled in the same manner as the Deposit as provided for herein. The balance of the Purchase Price shall be deposited by Buyer in Escrow strictly as and when required under Section 11.1 herein. In the event Buyer fails to deposit the Deposit, or any additional deposit or consideration required by this Agreement, in Escrow strictly as and when contemplated under this Section 2.2 or other provisions of this Agreement, Seller-shall give written notice of such failure to Buyer and Buyer shall have 2 business days to make such deposit. If Buyer fails to do so, Seller shall have the right at any time thereafter to terminate this Agreement and all further rights and obligations hereunder by giving written notice to Buyer. 2.3 Use Restriction. At Closing, the Property shall be encumbered by a use restriction executed by Buyer and Seller in the form attached hereto as Exhibit B ("Use Restriction"). Buyer acknowledges and agrees that Seller would not sell the Property to Buyer without the Use Restriction against the Property, and that the Use Restriction is a material portion of the consideration to Seller for the transaction described in this Agreement. - 5— PSA 73011 Twin Falls,ID (Final) uocusign Envelope ID:43EF60D2-B26A-40F6-8DFC-58A6E43C2DE2 3. Escrow; Title; Possession. 3.1 Escrow. Within three (3) business days after the date of Seller's acceptance of this Agreement, Seller shall open an escrow covering the purchase and sale of the Property with Escrow Agent, and Seller shall deposit with Escrow Agent an executed copy of this Agreement. Escrow Agent may prepare and the parties shall promptly execute and return such reasonable and customary Escrow instructions consistent herewith, as Escrow Agent may require in order to clarify or restrict Escrow Agent's duties or liability hereunder. Such Escrow instructions shall not amend any portion of this Agreement. 3.2 Title Commitment. Seller has caused Title Company to deliver a current commitment for an extended owner's coverage owner's policy of title insurance, Fidelity National Title Insurance Company, Commitment Number 24507931, dated May 20, 2024 at 7:30 AM ("Title Commitment") on the Property to Buyer and Seller. The Title Commitment is incorporated into this Agreement by reference. The Title Commitment shows the status of title to the Property as of the date of the Title Commitment and was accompanied by legible copies of all documents referred to in the Title Commitment. 3.3 Title Review. Buyer shall review the `title Cornmitrnent and notify Seller in writing of Buyer's disapproval of any Schedule B exceptions shown thereon (the "Disapproved Exceptions") within thirty (30) days following the Effective Date. Buyer's failure to notify Seiler in writing of any disapproval of any exception within such time period shall be deemed approval of such exception. The Disapproved Exceptions shall in no event include any of the Permitted Exceptions set forth in Section 3.8. 3.4 Amendments to Title Commitment. If on or before Closing, Title Insurer amends the Title Commitment to add any Schedule B exception (other than those matters previously approved or waived by Buyer and other than the Permitted Exceptions listed in Section 3.8, in addition to the Schedule B exceptions shown in the Title Commitment (an "Additional Exception"), Title Insurer shall give both Buyer and Seller written notice thereof, and Buyer shall notify Seller in writing within fifteen (15) days after Buyer's receipt of such notice of Additional Exceptions of Buyer's disapproval of any Additional Exception, which Additional Exceptions shall become Disapproved Exceptions. Any Additional Exception which has been disapproved by Buyer as provided in this Section 3.4 shell be considered a Disapproved Exception. Buyer's failure to notify Seller of its disapproval of any Additional Exception within such 15-day period shall be deemed approval of such Additional Exception. - 6— PSA 7304 Twin Falls,ID (Final) -- a _..._.�r,.•••.�••-• v..�.�-ucurrhurU-oUrt,-otSHeL-43GZDE2 3.5 Seller's Cure. Seller shall have forty-five (45) days from the date that Seller receives written notification of the Disapproved Exceptions to cause the Disapproved Exceptions to be removed from the Title Commitment. Seller shall have forty-five (45) days from the date that Seller receives any subsequent notification of Disapproved Exceptions to cause such Disapproved Exceptions to be removed from the 'Fitle Commitment. However, Seller shall have no obligation to cause any such Disapproved Exceptions to be removed from the Title Commitment. 3.6 Buyer's Waiver. Unless Seller notifies Buyer on or before the expiration of the respective forty-five (45) day periods provided for in Section 3.5 above that Seller has caused or will cause such Disapproved Exceptions to be removed from the Title Commitment, Seller will conclusively be deemed to have elected not to cause such Disapproved Exceptions to be removed from the Title Commitment. In such event, Buyer shall notify Seller within twenty (20) days after a Notice Event (defined later) whether Buyer shall elect to (i) waive the Disapproved Exceptions and complete the acquisition of the Property in accordance with this Agreement, or (ii) terminate this Agreement, and if Buyer fails to give such notice within such time period, it shall conclusively be deemed that Buyer has elected the option in subsection (i) above. For purposes of this Section 3.6, "Notice Event" shall be that date which is the earlier to occur of (a) expiration of the 45-day cure periods, as the case may be, provided in Section 3.S above, and (b) the date Seller notifies Buyer that Seller does not intend to cause such Disapproved Exceptions to be removed from the Title Commitment. 3.7 Buyer's Termination. If Buyer elects to terminate this Agreement as provided in Section 3.6, then the Deposit shall be returned to Buyer and Buyer and Seller shall have no further rights, obligations or liability hereunder, except as may be otherwise expressly provided herein. 3.6 Title. Seller shall convey to Buyer marketable and insurable fee simple title to the Property. Title shall be evidenced by the issuance by the Title Company of its standard (or at Buyer's election, extended) ALTA Owner's Policy of Title Insurance ("Title Policy") in the full amount of the Purchase Price. The Title Policy shall insure in Buyer fee simple title to the Property subject only to (a) the lien to secure payment of real estate taxes and assessments not delinquent for the calendar year 2024; (b) the exceptions to title approved by Buyer pursuant to this Article 3; (c) all matters that would be disclosed by a physical inspection or survey of the Property or that are actually known to Buyer; (d) any additional exceptions or matters created by Buyer, its agents, employees or authorized representatives; (e) the printed conditions, restrictions, exceptions, stipulations and other provisions contained in the Title Policy; and (f) such other exceptions as Buyer, in its - 7— PSA 7304 Twin Falls,ID (Final) .��waiyn L:nveiupe iu:43tF-Ei0U2-B26A-40F6-SUFC-58A(3E43C2DE2 reasonable discretion, may approve in writing, collectively, the "Permitted Exceptions". Notwithstanding anything else in this Agreement to the contrary, Seller shall cause any and all any mortgages, mechanic's liens or any similar monetary encumbrance, created by Seller, to be removed at or prior,to Closing. 3.9 Closing. Provided the terms and conditions set forth in this Agreement have been fulfilled, the consummation of the transaction contemplated by this Agreement, ("Closing") shall occur and delivery of all items to be rnade at the close of Escrow under-the terms of this Agreement shall be made on or before that date ("Closing Date") that is thirty (30) days after the date of the expiration of the Inspection Period (defined later), as such Inspection Period may be extended as provided herein. 3.10 Prorations. All revenues, income, receivables, costs, expenses and payables of the Property shall be apportioned equitably between Buyer-and Seller as of Closing on the basis of a 30-day month. Real property taxes, bonds and any special assessments shall be prorated as of the Closing Date. Personal property taxes shall be prorated as of the Closing Date based upon the latest previous tax levies. The amount of any bond or assessment that is a lien on the date title is transferred shall be assumed by Buyer, but Seller shall pay the amount of any delinquency existing on such date. Buyer shall be responsible for payment of any assessment levied after the date title is transferred. 3.11 Closing Costs. Each of Seller and Buyer shall pay for one-half(1/2) of the Escrow fee. Seller shall pay for the Title Policy. Buyer shall pay the premium for any extended coverage endorsement to the Title Policy and for coverage in excess of the Purchase Price of the Property. Seller shall pay the transfer taxes and the premium for the Title Policy with coverage in the amount of the Purchase Price of the Property. Buyer shall transfer all utility services to its name and account immediately upon Closing. 3.12 Possession. Possession of the Property shall be delivered to Buyer on the Closing Date. 3.13 Risk of Loss. The risk of loss or damage to the Property, or any part thereof, by fire or any other casualty from the Effective Date of this Agreement, up to the completion of Closing Shall be Seller's and, thereafter, shall be Buyer's. - 8— PSA 7304 Twin Falls,ID (Final) „u"wYn r:nvUiUNe iU:war-ruUUZ-bet)A-4UFti-8UFG58A6E43C2DE2 4. Property Condition. 4.1 Physical Condition of Property. Seller makes no representation or warranty, except for those set forth in Article 6, with respect to the physical condition of the Property. Buyer acknowledges that: (a) Buyer has entered into this Agreement and if Buyer purchases the Property hereunder, Buyer will do so on the basis of its own investigation of the physical condition of the Property, including the building and other improvements and the soils and ground water conditions of the Property and its immediate environs; and (b) Buyer will acquire the Property in an "AS IS” condition (except that Seller shall be responsible for delivering the Property with its fixtures and equipment removed). 4.2 Compliance with Law. Seller makes no representation or warranty, except for those set forth in Article 6 and set forth at the end of this Section 4.2, as to existing or proposed governmental laws or regulations applicable to the Property, including without limitation laws or regulations concerning the Americans with Disabilities Act ("ADA"), zoning or land use or Hazardous Materials (defined later). Buyer acknowledges that it has entered into this Agreement and if Buyer purchases the Property hereunder, Buyer will do so on the basis of its own review and investigation of the applicability and effect of such laws and regulations, and Buyer assumes the risks that adverse matters may not have been revealed by its investigation. "Hazardous Materials" means any and all hazardous, toxic or radioactive substance, waste, or material, including without limitation petroleum oil and its fractions, listed or defined by applicable Environmental Laws (defined later). "Environmental Laws" means any and all applicable federal, state and local statutes, regulations, ordinances and rules as presently existing or as may be amended or adopted in the future, pertaining to the protection of human health and/or the environment. 4.3 Waiver. Effective as of the Closing Date, subject to the provisions set forth in Article 6, Buyer hereby waives, releases, acquits and forever discharges Seller and its officers, directors, partners, employees, agents, attorneys, and any other person acting on behalf of Seller, from and against any and all claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseeable or unforeseeable, which Buyer now has or which may arise in the future on account of or in any way growing out of or connected with the ADA, zoning or land use regulations or laws and with the presence in or on the Property, or any building or other improvement thereon, or under the surface of the Property, of underground storage tanks, asbestos-containing materials, transformers or other equipment containing polychlorinated biphenyls, or any Hazardous Materials. Buyer hereby agrees to protect, - 9— PSA 7304 Twin Falls,ID (Final) uocusign envelope ID;43EF60D2-B26A-40F6-8DFG-5BA6E43C2DE2 defend, indemnify and hold Seller and its officers, directors, partners, employees, agents, and any other person acting on behalf of Seller,free and harmless, except to the extent caused by Seller's gross negligence or willful misconduct, from and against any and all losses, actual or consequential damages whether foreseeable or not, punitive damages, fines, liabilities, costs (including costs of clean-up or other remediation and required studies), interest, attorneys' fees (including such fees and expenses incurred in enforcing this indemnity), suits, causes of action, legal or administrative proceedings, demands, or claims (including, without limitation, claims for personal injury) made, threatened or asserted by any person, party or governmental entity or agency by reason of or in any way connected with the presence in or on the Property, or any building or other improvement thereon, or under the surface of the Property, of Hazardous Materials. The foregoing covenants of Buyer shall survive and be enforceable in accordance with their terms following the consummation of this transaction and shall not be merged with or into the deed delivered by Seller to Buyer through Escrow at the Closing. Buyer acknowledges and agrees that Buyer is acquiring the Property in an "As Is" condition and solely in reliance on Buyer's own inspection; and that other than as set forth in this Agreement, neither Seller nor any agents, representatives or employees of Seller (together "Agents") have made any representations or warranties, express or implied, verbal or written, with respect to any aspect of the Property (including without limitation the physical and environmental condition of the Property and the subsurface conditions of the soil and water) or its fitness for any particular use. Buyer further acknowledges that Buyer has investigated and is aware of all governmental requirements and other matters of a similar nature affecting the use and condition of the Property and the physical condition of the Property (including, but not limited to subsurface soil and water conditions), and agrees to Purchase the Property, subject to the provisions contained herein, in the condition that it is in at the close of Escrow. Effective the Closing Date, Buyer hereby waives, releases and forever discharges Seller and its Agents from any and all claims, actions, liabilities, judgments, demands, rights, damages and expenses whatsoever, direct or indirect, that Buyer now has or that may arise in the future on account of or in any way connected with the Property; including without limitation, the environmental condition of the Property, the value, condition, status, or quality of the Property, and any law or regulation applicable thereto. Buyer further waives any and all claims it may have against Seller and its Agents under any and all federal, state, county, or municipal statutes or laws now or at any time hereafter in effect, including but not limited to, any Environmental Laws, as these laws have been amended or supplemented. The provisions of this Section 4.3 shall survive the close of Escrow and the conveyance of the Property to Buyer. IN THIS REGARD, SELLER HEREBY REPRESENTS THAT THERE MAY BE ON THE PROPERTY UNDERGROUND STORAGE TANKS, ASBESTOS-CONTAINING MATERIALS, AND/OR TRANSFORMERS OR OTHER EQUIPMENT CONTAINING POLYCHLORINATED BIPHENYLS (PCB's), AND/OR OTHER HAZARDOUS MATERIALS, ANY OF WHICH MAY EXIST IN CONJUNCTION WITH ATTENDANT SOIL OR GROUND WATER CONTAMINATION. - 10— PSA 7304 Twin Falls,ID (Final) --- -•,•• -...,.,Na �.-rucrovut-atoll-4ur-b-dUFG-58A6E43C2DE2 5. INSPECTION PERIOD. 5.1 Buyer Condition— Inspection Period. The obligation of Buyer to purchase the Property is subject to the condition that Buyer determines in Buyer's sole discretion that the Property is suitable for its needs. If Buyer determines in Buyer's sole discretion for any reason that the Property is unsuitable for Buyer's needs, then Buyer shall notify Seller and Escrow Agent in writing (the "Termination Notice") no later than 5:00 PM Mountain Standard Time on the date that is two hundred ten (210) days after the Effective Date (the "Inspection Period"). If Buyer fails to provide Seller with a Termination Notice prior to the expiration of the Inspection Period, or extended Inspection Period, as may be the case, then the transaction contemplated by this Agreement shall proceed to Closing, subject to Buyer's other rights to terminate this Agreement set forth herein. Notwithstanding anything herein to the contrary, if Seller is in default hereunder then Buyer may terminate this Agreement, in Buyer's sole discretion, at any time prior to, or at Closing. If Buyer terminates this Agreement, as set forth in this Section 5 then the Escrow Agent shall return the Deposit and any option consideration paid to Escrow Agent to Buyer within ten (10) business days of Buyer's Termination Notice. 5.2 First Extension of Inspection Period. If, prior to the expiration of the Inspection Period, Buyer has been unable to satisfy itself that the Property is suitable for its needs, Buyer shall have the option to extend the Inspection Period for ninety (90) days ("First Extended inspection Period"). Buyer may exercise such option only by completing of each of the following: (a) notifying Seller and Escrow Agent in writing of such election to extend prior to expiration of the Inspection Period; and (b) paying to Escrow Agent, as option consideration and in addition to the initial Deposit paid to Escrow Agent, the sum of twenty thousand dollars ($20,000) ("First Extension Consideration"). Except as provided in the last paragraph of Article 9, the First Extension Consideration paid to Escrow Agent shall be nonrefundable to Buyer in any event, shall be deemed immediately earned by Seller, but shall be applicable to the Purchase Price upon Closing, if, and only if, such Closing shall occur. 5.3 Second Extension of Inspection Period. If, prior to the expiration of the First Extended Inspection Period, Buyer has been unable to satisfy itself that the Property is suitable for its needs, Buyer shall have the option to extend the First Extended Inspection Period for ninety (90) days ("Second Extended Inspection Period"). Buyer may exercise such option only by completing of each of the following: (a) notifying Seller and Escrow Agent in writing of such election to extend prior to expiration of the First Extended Inspection Period; and (b) paying to Escrow Agent, as option consideration and in addition to the initial Deposit paid to Escrow Agent and the First Extension Consideration paid to Escrow Agent, the sum of twenty thousand dollars ($20,000) ("Second Extension Consideration"). Except as provided in the last paragraph - 11 — PSA 7304 Twin Falls,ID (Final) -Ua U'I cnvetope iu:4JtI-EiUD2-B26A-4OF6-8DFC-58A6E43C2DF-2 of Article 9, the Second Extension Consideration paid to Escrow Agent shall be nonrefundable, shall be deemed immediately earned by Seller, and shall be applicable to the Purchase Price upon Closing, if, and only if, such Closing shall occur. 5.4 Third, Fourth, Fifth, Sixth and Seventh Extension of Inspection Periods. If, prior to the expiration of the Second Extended Inspection Period or the then current Extended Inspection Period, Buyer has been unable to satisfy itself that the Property is suitable for its needs, Buyer shall have the option to extend the then current Extended Inspection Period for five (5) periods of ninety (90) days each (collectively, the "Additional Extended Inspection Periods"). Buyer- may exercise such option only by completing of each of the following: (a) notifying Seller and Escrow Agent in writing of such election to extend prior to expiration of the then current Extended Inspection Period; and (b) paying to Escrow Agent, as option consideration and in addition to the initial Deposit paid to Escrow Agent and any other consideration paid to Escrow Agent for extensions, the sum of twenty thousand dollars ($20,000) for each such ninety (90) day Additional Extended Inspection Period (each an "Additional Extension Consideration"). Except as provided in the last paragraph of Article 9, all Additional Extension Consideration paid to Escrow Agent shall be nonrefundable, nonapplicable to the Purchase Price and shall be deemed immediately earned by and payable to Seller. 5.5 Access. Buyer and its agents may enter onto the Property to make such inspections, audits, studies, tests and surveys thereof (together, "Inspections") as Buyer deems necessary to bring about Buyer's satisfaction of the condition of the Property; provided, however, that Buyer shall not conduct any invasive or destructive Inspections, including without limitation, drilling or installing any wells, without Seller's prior written consent that may be withheld by Seller in its sole discretion. Buyer shall keep in strict confidence the results of any such Inspections, and shall disclose the results thereof only if and as required by law or legal process. Buyer shall keep the Property free and clear of any liens resulting from any such entry onto the Property; Buyer shall repair any damage to the Property resulting from such entry; and Buyer shall defend Seller with counsel reasonably satisfactory to Seller and defend, protect, hold harmless and indemnify Seller from and against any and all claims, actions, proceedings, causes of action, demands, damages, liabilities, losses, expenses, or costs of any kind whatsoever (including attorneys' fees) arising out of or connected with any such entry onto the Property or the disclosure of the results of any such Inspections, in contravention of Buyer's confidentiality obligations contained in this Section 5.5. If Buyer terminates this Agreement pursuant Section 5.1, Buyer shall not deliver a copy of its Inspections and the results of any and all physical inspections of the Property to Seller unless so requested by Seller in writing, in which event Buyer shall then deliver a copy of such inspections and results of such inspections as a condition precedent to Buyer's right to obtain disbursement of Buyer's Deposit and Seller shall reimburse Buyer for the time and expense to provide Seller with copies of the - 12— PSA 7304Twin Falls,ID (Final) uocusign Envelope ID:43EF6oD2-B26A-4oF6-8DFC-58A6E43C2DE2 Inspections within three (3) business days after Buyer's delivery of the Inspections to Seller. The foregoing covenants of Buyer shall survive and be enforceable following consummation or termination of this Agreement. 5.6 Affidavit of Proprietary Interest. Within thirty (30) days of the Effective Date, Seller shall provide to Buyer a signed and notarized Affidavit of Proprietary Interest regarding the Property such as to allow Buyer to get such land use and other governmental approvals as may be needed to make the property acceptable to Buyer at Closing. 6. Representations and Warranties of Seller. Seller makes the following representations and warranties each of which (i) shall survive the Closing for one (1) year regardless of what investigations Buyer shall have made with respect thereto prior to the Closing, (ii) is true in all respects as of the date hereof, and (iii) shall be true as of the Closing except to the extent that Seller obtains knowledge or notice of any fact or facts that would make any representation or warranty untrue or misleading in any material respect and discloses such fact or facts to Buyer in writing prior to the Closing: 6.1 Corporate Existence. Seller is duly organized, validly existing and in good standing under the laws of the State of Delaware. 6.2 Valid and Binding Obligation. This Agreement has been duly executed and delivered by Seller and is a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. 6.3 Authority. Seller has the full right, power and authority to sell and convey Property to Buyer as provided in this Agreement and to carry out such Seller's obligations hereunder. All requisite action necessary to authorize Seller to enter into this Agreement and perform its obligations hereunder has been taken. The joinder of no person or entity other than the Seller will be necessary to convey the Property fully and completely to Buyer upon Closing. The individual executing this Agreement on Seller's behalf has been duly authorized and empowered to bind Seller to this Agreement. 6.4 No Other Agreements. Seller has not entered into any agreement other than this Agreement that gives any person, firm or entity any right to acquire the Property or any rights or estates in or to the Property or any portion thereof; and to the best of Seller's knowledge, no person, firm or entity has any right to acquire the Property or any rights or estates in and to the Property or any portion thereof. - 13 -- PSA7304Twin Falls,ID (Final) uocusign Lnvelupc ID:43EF60D2-B26A-40F6-8DFC-58A6E43C2DE2 6.5 No Condemnation. To the best of Seller's knowledge, there is no condemnation or eminent domain proceeding pending or threatened against the Property. 6.6 No Litigation. To the best of Seller's knowledge, there is no litigation pending or threatened that affects the Property or that would or might affect the transaction contemplated hereby or the ability of Seller to satisfy all of its obligations hereunder. 6.7 No Notice. Seller has not received any written notification from any insurance company, Board of Insurance Underwriters, or any governmental authority specifying any non-compliance of the Property or any portion thereof with applicable codes, statutes, ordinances or regulations that remains uncured. 6.8 No Off-Record Title Matters. Seller is not a party to any contract or agreement affecting or pertaining to the Property other than those, if any, shown in the Title Commitment, that will not be terminable on giving notice of termination by Buyer to the other party or parties thereto following the Closing. From the Effective Date of this Agreement through the expiration of the Inspection Period, Seller shall not enter into contract(s) or agreement(s) affecting or pertaining to the Property that will remain in effect after the Closing without Buyer's prior written approval. 6.9 No Liens. To the best of Seller's knowledge, there is no lien or special assessment, other than ad valorem taxes, pending or threatened against the Property by any governmental authority. 6.10 Not a Foreign Person. Seller is not a "foreign person" as defined in Internal Revenue Code Section 1445(f)(3). 6.11 Hazardous Materials. To Seller's knowledge, there are no Hazardous Materials in, on, under, or adjacent to the Property except as may be disclosed in those certain reports relating to the environmental condition of the Property attached hereto as Exhibit C and made a part hereof(together, "Reports"). 6.12 Reports. Seller represents and warrants that Seller has delivered to Buyer true, correct and complete copies of the Reports. Although Seller does not make any representation as to - 14— PSA 7304 Twin Falls,ID (Final) uuL-uz iU1 CnveluPe lu:4Jtzl-fjUUL-B26A.40F6-81)FC-58A6L43C2L)L-2 the accuracy or completeness of any one or more of the Reports, Seller represents and warrants that, as to each of the Reports, (a) Seller has no knowledge that the contents thereof are inaccurate, and (b) Seller has no knowledge that conflicts with any of the information contained therein. 6.13 Occupancy Agreements. Seller has not executed any leases affecting the Property and moreover, Seller shall not enter into leases affecting the Property that will remain in effect after the Closing from the Effective Date of this Agreement through the expiration of the Inspection Period without Buyer's prior written approval. 6.14 "Knowledge". For the purpose of the foregoing representations and warranties, "knowledge" of Seller shall refer to and mean actual knowledge of Eric Holzer and Adam Luu without any obligation imposed on Seller or such individual to make any inquiry, inspection or investigation; and "notice" shall mean and refer to actual written notice received by Eric Holzer and Adam Luu prior to the date hereof and prior to the Closing. In the event of a breach of any of the foregoing representations and warranties, Buyer may elect to compel Seller to take such action at Seller's expense as may be necessary to cure the breach or Buyer may terminate this transaction and the Deposit, First Extension Consideration, Second Extension Consideration and any Additional Extension Consideration deposited with the Escrow Agent shall be returned to Buyer. In no event may Buyer seek or recover consequential damages for any such breach. The right of Buyer (and the concomitant obligation of Seller) following any such breach of representation or warranty shall survive the consummation of this Agreement. 7. Representations and Warranties of Buyer. Buyer hereby makes the following representations and warranties, each of which (i) shall survive the Closing for one (1) year regardless of what investigations Seller shall have made with respect thereto prior to the Closing, (ii) is true in all respects as of the date hereof, and (iii) shall be true as of the Closing except to the extent that Buyer obtains knowledge or notice of any fact or facts which would make any representation and warranty untrue or misleading in any material respect and discloses such fact or facts to Seller in writing prior to the Closing: 7.1 Corporate Existence. Buyer is duly organized, validly existing and in good standing under the laws of the State of Utah, 7.2 Valid and Binding Obligation. The persons executing this Agreement on behalf of Buyer are authorized to do so and, - 15 — PSA 7304 Twin Falls,ID (Final) v 'UOiJii L_nvcwNe w:'+-Irr-uuu2-b26A-4OF6-8DFG58A6E43C2DE2 upon execution by such parties, this Agreement shall be a valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms. 8. Buyer's Title Insurance Policy. Buyer's title to the Property at Closing shall be evidenced by the issuance of the Title Policy at the Closing in favor of Buyer in an amount equal to the Purchase Price of the Property insuring that fee simple title in the name of Buyer, subject only to the Permitted Exceptions. All matters concerning title to the Property shall merge in the deed to be delivered by Seller to Buyer at the Closing. Seller's obligation with respect to the condition of title to the Property at the Closing shall be completely satisfied and fulfilled upon the issuance by the Escrow Agent of Buyer's Title Policy. Absent fraud on the part of Seller, in the event of any defect in or other matter adversely affecting title to the Property that appears following the Closing, Buyer shall look solely to Buyer's Title Policy to obtain any redress or relief for any damages incurred by Buyer as a result of such defect or matter and Buyer hereby releases Seller from any and all cost, damage, claim or liability arising out of any such defect or matter. 9. CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE. Buyer's obligation under this Agreement to purchase the Property is subject to the fulfillment of each of the following conditions (any or all of which may be waived by Buyer). 9.1 Seller Representations. The representations and warranties of Seller contained herein shall be true, accurate and correct in all material respects as of the Closing Date. 9.2 Seller Document Delivery. Seller shall have delivered all the documents and other iterns required pursuant to Article 10, and shall have performed, in all material respects, all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Seller at or prior to the Closing, in connection with the sale of the Property. 9.3 Title Policy. Buyer shall have received a pro-forma ALTA Owner's Policy of Title Insurance, and the Title Company shall be prepared to issue the Title Policy, in the amount of the Purchase Price for the Property issued by the Title Company insuring that Buyer is the owner of the Property subject only to the Permitted Exceptions, and otherwise in the form approved by Buyer prior to the expiration of the Inspection Period. 9.4 Approval of Consent Agreement. Seller- shall have provided the Consent Agreement substantially in the form attached - 16— PSA 7304 Twin Falls,ID (Final) -•-r--• --vtA"Lro-tlur-c-0bAUL:43C2DE2 hereto as Exhibit E executed by Seller or executed by C & S Wholesale Grocers ("C&S") and/or the entity that holds Albertsons' leasehold interest in the Property described in the Declaration referenced in Exhibit E as of the Closing Date. Seller agrees to use best efforts to obtain C&S approval of the Consent Agreement as soon as possible after the Effective Date. 9.5 Disapproved Exceptions. Seller and Buyer, individually or together shall have complied with Section 3.3 hereof. If any of the conditions described in this Article 9 are not satisfied prior to the Closing Date, then Buyer shall be entitled to terminate this Agreement, in which case the Deposit, First Extension Consideration, Second Extension Consideration, and Additional Extension Consideration shall be returned to Buyer; provided, however, that Buyer shall not terminate this Agreement without giving Seller notice of the failure of such condition and a period of five (5) business days after delivery of such notice for Seller to cause such condition to be satisfied. 10. Seller's Closing Documents. On or before the Closing Date, Seller shall deliver to Escrow Agent the following, duly executed and acknowledged as required: 10.1 Deed: A special warranty deed in the form attached hereto as Exhibit D; 10.2 Affidavit of Title: An affidavit of title in Seller's customary form executed as of the Closing Date and acceptable to the Title Company such that Title Company may issue an extended ALTA Policy of Owner's Title Insurance to Buyer at Closing; 10.3 FIRPTA: A Non-Foreign Affidavit for purposes of compliance with Section 1445 (b)(2) of the Internal Revenue Code of 1986, as amended, and the regulations adopted thereunder; 10.4 Consent: A Consent Agreement in substantially the form as attached hereto as Exhibit "E" subject to Seller obtaining the approval from C & S as provided herein; and 10.5 Other: Any other instruments or documents reasonably required by Escrow Agent and/or Title Company, if any, to close the transactions described in this Agreement. - 17 — PSA 7304 Twin Falls,ID (Final) ,......,....Jig iivvwljv lu.w)Lrovu—'-bztJ/-\-4vrb-bUFG-58A6E43C2DE2 11. Buyer's Closing Documents. On or before the Closing Date, Buyer shall deliver or cause to be delivered to the Escrow Agent the following, duly executed and acknowledged as required: 11.1 Purchase Price. The balance of the Purchase Price of the Property, adjusted for Buyer's share of closing costs and prorations; and 11.2 Other. Any other instruments or documents reasonably required by Escrow Agent and/or Title Company, if any, to close the transaction described in this Agreement. 12. Condemnation. If any of the land and/or the building comprising the Property is taken or is under threat of taking by eminent domain or condemnation or any transfer in lieu thereof, or if any portion of the building on the Property is destroyed or damaged prior to the transfer of title, Buyer may (i) terminate this Agreement, or (ii) complete the purchase of the Property, in that case there shall be no reduction in the Purchase Price of the Property and all condemnation and insurance proceeds shall be assigned and paid to Buyer. In the event Buyer terminates this Agreement, the Escrow shall be canceled, the Deposit, t irst extension Consideration and Second Extension Consideration shall be returned to Buyer, less the amount of all title and escrow cancellation fees, if any, and all documents and any funds in Escrow shall be returned immediately to the party having deposited the same. 13. Notices. Notices and communications ("notices") required or permitted to be given in connection with this Agreement shall be mailed, by certified or registered United States mail, postage prepaid, or delivered (either personal delivery or delivery by private express courier service such as Federal Express). Notices may also be given by fax or email, provided that (i) confirmation of completed transmission is obtained, and (ii) concurrent notice is given by deposit in the regular mail a copy of said Notice or delivery to the courier to be made no later than the next business day following the email or fax transmission. Buyer's and Seller's addresses for notices are: If to Seller: Albertson's Stores Sub LLC, P.O. Box 20, Boise, Idaho 83726 (mailing address) 250 Parkcenter Blvd. Boise, Idaho 83726 (street address) Attn: Legal Dept. (47706) Adam,Luu@albertsons.com - 18— PSA 7304 Twin Falls,ID (Final) —""Y"envulOP0 iu:43tr-tiUU2-B26A-4OF6-8DFG58A6E43G2DE2 Joe.Lan field@aI bertsons.com With copy to: Albertson's Stores Sub LLC, 250 Parkcenter Blvd, Boise, ID. 80726 Attn: Adam LULL Adam-LULI@albertsons.com Joe.Langfield@albertsons.com If to Buyer: Chasewood, LLC Attn: Kevin Mortensen PO Box 1063 Centerville, Utah 84014 kmortensen@mwred.com With copy to: Givens Pursley LLP Attn: L. Edward Miller and Charlie S. Baser 601 W. Bannock St. Boise, Idaho 83702 edmiller@givenspursley.com charliebaser@givenspursley.com The person and the place to that notices are to be mailed or delivered may be changed by Buyer or Seller by written notice to the other party given in accordance with the provisions of this Section. Notices sent in accordance with this Article 13 shall be effective upon receipt or on the date of refusal to accept delivery of such notice. 14. Liquidated Damages. SELLER AND BUYER ACKNOWLEDGE THAT SELLER IS VERY DESIROUS OF CLOSING THE TRANSACTION CONTEMPLATED HEREBY WITHIN THE TIME FRAME ESTABLISHED BY THIS AGREEMENT, AND THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT THE PURCHASE AND SALE OF THE PROPERTY PROVIDED FOR IN THIS AGREEMENT DOES NOT CLOSE WITHIN SUCH TIME FRAME DUE TO BUYER'S DEFAULT UNDER THIS AGREEMENT. SELLER AND BUYER FURTHER ACKNOWLEDGE THAT SELLER WILL BE ENTITLED TO COMPENSATION IF THE PURCHASE AND SALE OF THE PROPERTY DOES NOT CLOSE DUE TO BUYER'S DEFAULT. WITH THE FLUCTUATION IN LAND VALUES, THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS THAT DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, BUYER AND SELLER REALIZE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, AS OF THE SIGNING OF THIS AGREEMENT, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY THE EXTENT OF DAMAGES TO - 19— PSA 7304 Twin Falls,ID (Final) -�— u'vn-111-1-aurt.-otfAtit43G2DE2 SELLER IN THE EVENT OF BUYER'S DEFAULT WHICH REMAINS UNCURED FOR FIVE (5) BUSINESS DAYS AFTER BUYER'S RECEIPT OF SELLER'S NOTICE OF SUCH DEFAULT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE IN THE EVENT THATTHE PURCHASE AND SALE OF THE PROPERTY PROVIDED IN THIS AGREEMENT DOES NOT CLOSE DUE TO BUYER'S DEFAULT. ACCORDINGLY, BUYER AND SELLER HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES OR SUCH COMPENSATION, AS THE CASE MAY BE, IS THE AMOUNT OF THE DEPOSIT, NAMELY, TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00), AND ANY INTEREST EARNED THEREON. BUYER AND SELLER HEREBY AGREE THAT IF BUYER DEFAULTS UNDER THIS AGREEMENT AND SUCH DEFAULT REMAINS UNCURED FOR FIVE (5) BUSINESS DAYS AFTER BUYER'S RECEIPT OF SELLER'S NOTICE OF SUCH DEFAULT,THEN SELLER SHALL BE ENTITLED TO RECOVER FROM BUYER THE AMOUNT OF THE DEPOSIT, NAMELY THE SUM OF TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00) WITH ALL INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES OR COMPENSATION, AS THE CASE MAY BE, UNDER THIS AGREEMENT AND SUCH RECOVERY OF TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00) WITH ALL INTEREST EARNED THEREON SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF OR COMPENSATION TO SELLER, AS THE CASE MAY BE, AS A RESULT OF BUYER'S DEFAULT UNDER THIS AGREEMENT; EXCEPT, NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL LIMIT THE REMEDIES SELLER MAY HAVE TO ENFORCE ANY RIGHTS IT HAS AGAINST BUYER UNDER THE INDEMNITY PROVISIONS OF SECTION 4.3, SECTION 5.5 AND UNDER SECTION 16.1 AND SECTION 16.18(b) OF THIS AGREEMENT. If Buyer breaches this Agreement by refusing to purchase the Property in accordance with this Agreement when legally required to do so under the terms of this Agreement (a "Wrongful Failure to Purchase") and Buyer does not cure the Wrongful Failure to Purchase within five (5) business days after Seller notifies Buyer of the same in writing, then Seller, as its sole and exclusive remedy, may terminate this Agreement, in which case Seller shall be entitled to receive the entire Deposit and neither Buyer nor Seller shall have any further obligations hereunder. 15. Default by Seller. If Seller refuses or fails to consummate the Closing under this Agreement then Seller shall be in default under this Agreement and Buyer may, at Buyer's option, at any time prior- to, or at Closing, either(i) terminate this Purchase Agreement in which event neither party shall have any further rights, duties or obligations hereunder except with respect to the provisions of this Purchase Agreement which expressly survive the termination hereof, or (ii) treat this Purchase Agreement as being in full force and effect and seek specific performance. Notwithstanding anything else in this Agreement to the contrary, if Buyer terminates this Agreement, as set forth in this Article 15, then the Escrow Agent shall return the Deposit, First Extension Consideration, Second Extension Consideration, and all Additional Extension Consideration to Buyer within ten - 20— PSA 7304 Twin Falls,ID (Final) iu.Yocrvvu4-❑4UTA-4ul-b-?JUt-G56MEQC2DE2 (10) business days of the date that Buyer's notice to terminate is delivered to Seller and Escrow Agent. 16. General Provisions. 16.1 Broker's Commissions. Seller represents that it has not entered into any contracts with any brokers or finders nor has Seller obligated itself to pay any real estate commissions or finders' fees on account of the execution of this Agreement or the close of the transaction contemplated hereby. Buyer represents that it has not entered into any contracts with any brokers or finders nor has Buyer obligated itself to pay any real estate commissions or finders' fees on account of the execution of this Agreement or the close of the transaction contemplated hereby. Based on such representations, Buyer and Seller hereby agree to indemnify, defend and hold each other harmless from any claims, damages, expenses, liabilities, liens or judgments (including costs, expenses and attorneys' fees in defending the same) which arise on account of any claim made by any person or entity, other than those set forth above (if any), for commissions or finders' fees with respect to the transaction contemplated hereby due to the breach of any of the representations and warranties made by the indemnifying Party in this Section 16.1. This indemnification shall survive the Closing or the cancellation and termination of this Agreement. Buyer and Seller acknowledge that Seller shall be responsible only for commission due to any broker hired or otherwise utilized by Seller and Buyer shall be responsible only for commission due to any broker hired or otherwise utilized by Buyer. 16.2 Interpretation. Whenever used herein, the term "including" shall be deemed to be followed by the words "without limitation," and "hereof", "herein", "hereunder" and similar terms shall refer to this Agreement as a whole and not to only an article, section or sub-section of this Agreement. Words used in the singular number shall include the plural, and vice-versa, and any gender shall be deemed to include each other gender. 16.3 Execution and Change. It is understood and agreed that until this Agreement is fully executed and delivered by the authorized partners, corporate officers or other individuals, as applicable, of Buyer and Seller, there is not and shall not be an agreement of any kind between Buyer and Seller upon which any commitment, undertaking or obligation can be founded. It is further agreed that once this Agreement is fully executed and delivered that it contains the entire agreement between Buyer and Seller and that, in executing it, Buyer and Seller do not rely upon any statement, promise, or representation not herein expressed and this Agreement once executed and delivered shall not be modified, changed or altered in any respect except by a writing executed and delivered in the same manner as required for this Agreement. - 21 — PSA 7304 Twin Falls,ID (Final) y..•_,,. r�.u.TJLrVUU o�nN 4Ur-U-OUI G-58AM43CAJE2 16.4 Time of the Essence. Time is of the essence of this Agreement and each and every term, condition and provision hereof. If the final date of any period of time set forth herein occurs on a Saturday, Sunday or legal holiday, then in such event, the expiration of such period of time shall be postponed to the next day that is not a Saturday, Sunday or legal holiday ("business day"), 16.5 No Joint Venture. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership,joint venture or other joint or equity type agreement between Buyer and Seller. 16.6 Further Acts. Buyer and Seller shall, at the request of the other, execute, acknowledge (if appropriate) and deliver whatever additional documents, and do such other acts, as may be reasonably required in order to accomplish the intent and purposes of this Agreement. 16.7 Assignment. Except as expressly provided in Section 16.18, Buyer may not assign its rights nor delegate its duties hereunder to a person or entity not wholly owned or controlled by Kevin Mortensen without the prior written consent of Seller, which consent may be withheld in Seller's absolute discretion. Notwithstanding the foregoing, Buyer may, without the prior written consent of Seller, assign its rights and delegate its duties under this Agreement, to an affiliate of Buyer's formed solely for acquiring the Property. Buyer shall remain liable to Seller for any breach, default or indemnity obligation of assignee arising under this Agreement. 16.8 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, Buyer and Seller and their respective successors, heirs, administrators and assigns. 16.9 Attorneys' Fees. If either Buyer or Seller brings an action at law or in equity to enforce or to interpret or to seek redress for breach of this Agreement, the prevailing party in such action shall be entitled to its litigation expenses and reasonable attorneys' and witness fees in addition to all other appropriate relief. 16,10 Waivers. Except as herein expressly provided, all waivers hereunder shall be in writing and no waiver by Buyer or Seller of (i) any breach of this Agreement by the other party or (ii) a condition precedent shall be deemed to be a waiver of any other breach by such other - 22— PSA 7304 Twin Falls,ID (Final) �oE:r-vVUZ-b2bA-40F6-8DFC-58A6E43C2DE2 party or of a condition precedent (whether preceding or succeeding and whether or not of the same or similar nature). 16.1.1 Governing Law. This Agreement shall be construed and interpreted and the rights of Buyer and Seller determined in accordance with the laws of the State of Idaho (without reference to the choice of law provisions of Idaho law) and provided further that with respect to matters of law concerning the internal corporate affairs of any corporate entity which is a party to or the subject of this Agreement, and as to those matters, the law of the jurisdiction under which such entity derives its powers shall govern; provided, however, that tittle matters and the effectiveness of any conveyance to be made pursuant hereto shall be controlled by the law of the State of Idaho. 16.12 Pleadings and Captions. The headings and captions of the sections of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement: or any provision hereof. 16.13 Severability. If any paragraph, section, sentence, clause or phrase contained in this Agreement becomes or is held by any court of competent jurisdiction to be illegal, null or void or against public policy, tliat provision shall be deleted from this Agreement, and the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement shall not be affected thereby. 16.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via email or facsimile transmission and shall be deemed originals except for if a document provided for under this Agreement must be recorded than real original signatures shall be required. 16.15 Joint and Several Obligations. If more than one person or entity is included within the designated hereinabove as Seller, each and all of the obligations imposed upon such party under this Agreement shall be the joint and several obligations of each of such persons or entities. 16.16 No Third Party Beneficiaries Intended. No terrn or provision of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization, or corporation not a Party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder - 2.3— PSA 7304Twin Falls,ID (Final) uocusign tnveiope M:43EF6OD2-B26A.40F6-8DFC-58A6E43C2DE2 16.17 Survival. In addition to the obligations which expressly by their terms survive this Agreement, Buyer's and Seller's respective remedies for a prior breach of this Agreement and the provisions of Section 16.9 shall survive the Closing or earlier termination of this Agreement. 16.18 Exchange Provision. (a) Seller-and Buyer (each a "Cooperator") may each cooperate in a simultaneous or deferred exchange by permitting the other party ("Exchanger")to assign its interest in this Agreement to a third party ("Exchange Facilitator") pursuant to an Assignment and Assumption of Real Property Purchase and Sale Agreement and Supplemental Escrow Instructions in form and content reasonably acceptable to Buyer and Seller. The assignment of such interest may take effect only simultaneously with the Closing under this Agreement, and in no event shall the Exchanger be relieved of any liability under this Agreement by reason of such assignment. The Cooperator shall not be required to bear any escrow, title or other expense in excess of those the Cooperator would bear if there were no exchange. The Cooperator shall not be required to execute any document creating personal liability or to assume or be exposed to any liability in connection with the exchange, nor shall the Closing Date be delayed to consummate any such exchange without the written consent of both Parties. In no event shall the Cooperator be required to take title to any property and in no event shall the Cooperator be responsible for any tax consequences to Exchanger or any other party in connection with any such exchange. (b) Exchanger agrees and covenants to defend, indemnify, protect and hold harmless Cooperator from any liability, damage, loss, cost and expense (including reasonable attorneys' fees) of whatever kind and nature arising out of any such assignment or exchange, including, without limitation, any claims by or on behalf of the Exchange Facilitator. Cooperator shall have the right to approve in its reasonable judgment any documentation Cooperator will be requested to execute in connection with the exchange transaction. 16.19 Exhibits. The following exhibits are attached hereto and incorporated herein by this reference: Exhibit A Legal Description of Property Exhibit B Use Restriction Exhibit C Reports Exhibit D Deed Exhibit E Consent Agreement - 24— PSA 7304 Twin Falls,ID (Final) y 1nva1vpC iv.<totrnuuZ-dZbA-40F6-8DFC-58A6E43C2DE2 IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement effective as of as of the Effective Date first set forth above. SELLER: BUYER. Albertson's Stores Sub I.I.C. Chasewood, LLC, a Delaware limited liability company. a Utah limited liability company. BY: Cbires, Inc. Its Manager By. 6938687DD0844E5— B c y: Bradley R. Beckstrom cTPI I< vin sen Authorized Signatory resj n - 25— P5A7304Twin Falls,ID (Final) uuuusiyn cnveiope IU:43tF6pD2-82GA-4OF6-8DFC-58A6E43C2DE2 EXHIBIT A THE PROPERTY (To be Confirmed by Title or Survey) Lots 1, 2, 3, and 5 in Block 1 of ASH STREET P.U.D., a Resubdivision & Renumbering of Lots 11 & 12, Block 1, and portions of Lots 3, 4, 5, 6, 7, 10 and 13, Block 1 of Ashton Addition in SW1/4 SWIM, Section 10 T. 10 S., R. 17 E., B.M. Twin Falls County, Idaho, according to the official plat thereof, filed in Book 18 of Plats at Page 36, records of Twin Falls County, Idaho. - 1— PSA 73C4 Twin Falls,ID (Final) Located In SW4 SW4, Section 10 Township 10 South, Range 17 East, Boise Meridian Twin Falls County, Idaho 2024 Canyon Springs —"— Golf Course \\ '----- 1 \ u_ HOLE LINE RD. z 0 � N. COLLEGE RD. h —�' olleg NPic tof E outof he FFQaer U a 4n FALL AVE. High School fill F Pro ect Lo n NOT TO SCALE o ADDISON AVE. E m �. Thomsen„ Park Municipal b Golf Course .� Hormo Park KIMBERLY RD, Cemetery vi (A p \ PARK AVE. 0 1\ d a U 3 ORCHAR OR. E. 0 z W TWIN FALLS, Y IDAHO WATER TANK O 3600 N. R0, Vicinity Sketch: n.t.s. Vicinity Map �^ EHM Engineers,Inc. I BU%DINO ME FUTURE ON A F)UNDAaON 016%CELLbNCE i N Chasewood LLC �7 Engineers/Surveyors/Planners TWIN FALLS COUNTY,IDAHO 6 p(Noah College fax 34-Twin web: c Idaho 83301 SL al I I 208 734-4888 fax 208 734-6049 web:ehminc.com TLR PROPERTIES LLC RUTH RAHE VISTA VIEW LLC 2178 E 3840 N 3090 E 3300 N 818 WENDY ST FILER,ID 83328 TWIN FALLS, ID 83301 POCATELLO,ID 83202 CITY OF TWIN FALLS SHOSHONE MOUNTAIN JANE GEORGE PARTNERS LLC TH PO BOX 1907 1121 10 AVE E TWIN FALLS,ID 83303 PO BOX 728 TWIN FALLS,ID 83301 MIDVALE,UT 84047 I(HINH TSE PANDORA LENARDI ROBERT MEYERS 1967 MOOSE ST 240 LOCUST ST N 3921 N 3300 E TWIN FALLS,ID 83301 TWIN FALLS,ID 83301 TWIN FALLS,ID 83301 JESUS RODRIGUEZ JACK SHERRILL LIVING TRUST MICHAEL HOGAN 256 LOCUST ST N 415 ADDISON AVE,STE 3 1509 SHOUP AVE E TWIN FALLS,ID 83301 TWIN FALLS,ID 83301 TWIN FALLS,ID 83301 FIRST SECURITY BANK ALBERTSON'S STORE SUB LLC OF IDAHO LIMBERAKIS FAMILY LP COMPREHENSIVE PROPERTY WELLS FARGO BANK 6303 S RIVER BLUFFS RD TAX SERVICE THOMPSON 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