RIGHTS OF FIRST AND SECOND REFUSAL AGREEMENT THIS RIGHTS OF FIRST AND SECOND REFUSAL AGREEMENT (the “Agreement”) is made by and between The Board of Education of the City of Albuquerque, New Mexico, Governing Board of, for and on behalf of the Albuquerque Municipal School District No. 12, Counties of Bernalillo and Sandoval, State of New Mexico, a political subdivision of the State of New Mexico, (hereinafter referred to as “APS”), CENTRAL NEW MEXICO COMMUNITY COLLEGE, an educational institution created pursuant to Chapter 21, Article 16, NMSA 1978 (hereinafter referred to as “CNM”), and CITY OF ALBUQUERQUE, a New Mexico Municipal Corporation, (hereinafter referred to as “City”). RECITALS WHEREAS, APS is the owner of that certain parcel of land located in Bernalillo County, New Mexico, and more particularly described in Exhibit A, attached hereto and incorporated herein, (the “Subject Property”); WHEREAS, APS acquired the Subject Property from CNM pursuant to that certain exchange agreement executed by and between the parties, effective _______ (“the “Exchange Agreement”); WHEREAS, in connection with the Exchange Agreement, and as part of the consideration thereof, CNM desires to obtain a right of first refusal (“Right of First Refusal”) to purchase the Subject Property, and APS is willing to grant such Right of First Refusal to CNM on the terms and conditions described herein; WHEREAS, City has, or will have, a leasehold interest in the Subject Property; WHEREAS, in consideration of the improvements made, or to be made, to the leasehold estate, City desires to obtain a right of second refusal (“Right of Second Refusal”) to purchase the Subject Property, and APS is willing to grant such Right of Second Refusal to City on the terms and conditions described herein. NOW THEREFORE, in consideration of the mutual promises hereinafter set forth, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The recitals are incorporated by reference and are so restated.
2. GRANT OF RIGHT OF FIRST AND SECOND REFUSAL: APS hereby grants: (a) to CNM, the Right of First Refusal to purchase the Subject Property, or any applicable portion thereof, in accordance with the terms of this Agreement; and (b) to City, the Right of Second Refusal to purchase the Subject Property, or any applicable portion thereof, in accordance with the terms of this Agreement only in the event the Right of First Refusal of CNM is terminated. In the event APS elects to sell, or change -1–
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the use of, the Subject Property, APS shall obtain a written appraisal (“Appraisal”), which establishes the fair market value (“Fair Market Value”) of the Subject Property and is prepared by a licensed and certified commercial appraiser who is a Member of the Appraisal Institute (“MAI”). APS shall deliver written notice of its intent to sell or change the use of the Subject Property (“Intent Notice”), together with a certified copy of the Appraisal, concurrently to CNM and to City. 3. EXERCISE OF RIGHT OF FIRST REFUSAL; TERMINATION: The Right of First Refusal shall be exercised by CNM by the delivery of its written notice of intent to purchase (“CNM Purchase Notice”) to APS within sixty (60) days after the delivery of the Intent Notice and Appraisal (“CNM Acceptance Period”). In addition to the CNM Purchase Notice, CNM shall submit to APS a purchase and sale agreement (“CNM Purchase Agreement”) pursuant to which CNM will purchase and APS will sell to CNM, the Subject Property, or applicable portion thereof, at a price established by the Fair Market Value. The form of the purchase and sale agreement must be acceptable to APS and (i) shall not include any warranties or representations by APS except relating to authorization, (ii) provide for cash or collected funds at closing and (iii) provide for conveyance by quit claim deed. The Right of First Refusal shall terminate, automatically, if it is not exercised as provided herein within the CNM Acceptance Period and may be terminated earlier by the delivery of a written notice of waiver (“CNM Waiver”) by CNM to APS and to City. 4. EXERCISE OF RIGHT OF SECOND REFUSAL; TERMINATION: If the Right of First Refusal is terminated, the Right of Second Refusal shall be exercised by City by the delivery of its written notice of intent to purchase (“City Purchase Notice”) to APS within ninety (90) days after the delivery of the Intent Notice and Appraisal (“City Acceptance Period”). In addition to the City Purchase Notice, City shall submit to APS a purchase and sale agreement (“City Purchase Agreement”) pursuant to which City will purchase and APS will sell to City, the Subject Property, or applicable portion thereof, at a price established by the Fair Market Value. The form of the purchase and sale agreement must be acceptable to APS and (i) shall not include any warranties or representations by APS except relating to authorization, (ii) provide for cash or collected funds at closing and (iii) provide for conveyance by quit claim deed. The Right of Second Refusal shall terminate, automatically, if it is not exercised as provided herein within the City Acceptance Period and may be terminated earlier by the delivery of a written notice of waiver (“City Waiver”) by City to APS. 5. CLOSING COSTS: In the event the Right of First Refusal or the Right of Second Refusal is exercised, APS shall pay the premium for an ALTA Owner’s Policy of Title Insurance (the “Title Policy”) at closing but shall not pay the cost of any endorsements to the Title Policy. The coverage afforded by the Title Policy shall be equal to the Fair Market Value of the Subject Property. The Purchaser shall reimburse APS for one-half the cost of the appraisal. Each party shall pay its respective attorneys’ fees. All other closing costs shall be divided equally between the parties.
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6. RIGHT TO SELL OR CHANGE USE AFTER TERMINATION: In the event the Right of First Refusal and the Right of Second Refusal are terminated, APS may change the use of the Subject Property or place the Subject Property on the market to sell and may enter into a purchase agreement with any party and thereafter convey the Subject Property, or applicable portion thereof, free and clear of the Right of First Refusal and Right of Second Refusal; provided, however, if APS does not convey the Subject Property or applicable portion thereof within three (3) years after the delivery of the Intent Notice, then the Right of First Refusal and Right of Second Refusal shall be reinstated and APS must re-offer the Subject Property or applicable portion thereof to CNM and City prior to sale. 7. NOTICES. All notices which may be or are required to be given by APS, CNM or the City under this Agreement shall be properly given only if made in writing and sent by (a) hand delivery, or (b) certified mail, return receipt requested, or (c) a nationally recognized overnight delivery service (such as Federal Express, UPS Next Day Air or Airborne Express), or (d) by facsimile to the facsimile number listed below (provided that a copy of such notice is also delivered within 24 hours to the party by one of the other methods listed herein), with all postage and delivery charges paid by the sender and addressed to APS, CNM or the City, as applicable as set forth below, or at such other address (or telecopy number) as each may request in writing. Such notices delivered by hand, by telecopy, or overnight delivery service shall be deemed received on the date of delivery and, if mailed, shall be deemed received upon the earlier of actual receipt or two days after mailing. If there is a question about whether or not delivery was effected, sender shall be responsible for providing proof of delivery. Said notice addresses are as follows: If to APS: Executive Director Facilities and Support Operations Albuquerque Public Schools P.O. Box 25704 Albuquerque, NM 87125 6400 Uptown Boulevard NE Albuquerque, NM 87110 Telephone: Facsimile: With a copy to: (505) 764-9726 (505) 247-3773
Superintendent Albuquerque Public Schools P.O. Box 25704 Albuquerque, NM 87125 6400 Uptown Boulevard NE Suite 600 East Albuquerque, NM 87110
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and to:
Director of Real Estate Albuquerque Public Schools P.O. Box 25704 Albuquerque, NM 87125-0704 915 Locust Street SE Albuquerque, NM 87106-4309
and to:
Modrall Sperling Law Firm P.O. Box 2168 Albuquerque, NM 87103 500 Fourth Street NW, Suite 1000 Albuquerque, NM 87102 Telephone: Facsimile: (505) 848-1820 (505) 848-1891
If to CNM:
Vice President for Administrative Services Central New Mexico Community College 525 Buena Vista SE Albuquerque, NM 87106 Telephone: Facsimile: (505) 224-4433 (505) 224-4430
and to:
Director, Purchasing Materials Management Central New Mexico Community College 525 Buena Vista SE Albuquerque, NM 87106 Telephone: Facsimile: (505) 224-4546 (505) 224-4548
With a copy to:
Rodey, Dickason, Sloan, Akin & Robb, P.A. P.O. Box 1888 Albuquerque, NM 87103-1888 Chief Administrative Officer Mayor’s Office City of Albuquerque P.O. Box 1293 Albuquerque, NM 87103 One Civic Plaza Room 11103 Albuquerque, NM 87102 -4–
If to City:
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Telephone: Facsimile: With a copy to:
(505) 768-3000 (505) 768-3019
Assistant City Attorney Municipal Affairs – Real Estate & Land Use Division City of Albuquerque P.O. Box 2248 Albuquerque, NM 87103 One Civic Plaza NW Albuquerque, NM 87102 Telephone: Facsimile: (505) 768-4666 (505) 768-4525
8. ATTORNEYS’ FEES; COSTS: In connection with any litigation arising out of this Agreement, the prevailing party shall, subject to the availability of funds, be entitled to recover reasonable attorneys’ fees and costs at both the trial and appellate levels. 9. ENTIRE AGREEMENT: This Agreement shall constitute the entire agreement between the parties with regard to the Rights of First and Second Refusal Agreement, and no prior verbal or written agreement of understanding shall survive the execution of this Agreement. In the event of any amendment or modification of this Agreement, the amendment or modification shall be in writing signed by all the parties, or their agents, in order to be binding upon the parties. 10. APPLICABLE LAW: This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Mexico. 11. TIME OF THE ESSENCE: All times, wherever specified herein for the performance by APS, CNM or City of their respective obligations hereunder, are of the essence of this Agreement. Notwithstanding the foregoing, any time period provided for herein which shall end on a Saturday, Sunday, or legal holiday shall extend to the next Business Day. The term “Business Day” shall mean those days of the week which are not a Saturday, Sunday or any other federal or state holiday in which the banks in New Mexico are not open for business. 12. COUNTERPARTS: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement binding on the parties hereto. Facsimile signatures on any document other than a document which is acknowledged and intended to be recorded in the real property records of Bernalillo County, New Mexico, shall be binding on the respective party as if the original signature had been delivered. -5–
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IN WITNESS WHEREOF, APS, CNM and City have executed this Agreement through their duly authorized signatories on the date indicated next to the respective signatures, and, where appropriate, have affixed their respective seals hereto, with the effective date of this Agreement to be the date of the last signature affixed hereto. THE BOARD OF EDUCATION OF THE CITY OF ALBUQUERQUE, NEW MEXICO, GOVERNING BOARD OF, FOR AND ON BEHALF OF THE ALBUQUERQUE MUNICIPAL SCHOOL DISTRICT NO. 12, COUNTIES OF BERNALILLO AND SANDOVAL, STATE OF NEW MEXICO, a political subdivision of the State of New Mexico
By:______________________________________________ Paula Maes Date President
ACKNOWLEDGEMENT STATE OF NEW MEXICO COUNTY OF BERNALILLO ) ) )
This instrument was acknowledged before me on ___________________, 2007, by Paula Maes, President of The Board of Education of the City Of Albuquerque, New Mexico, Governing Board of, for and on Behalf of the Albuquerque Municipal School District No. 12, Counties of Bernalillo and Sandoval, State of New Mexico, a political subdivision of the State of New Mexico.
______________________________________ Notary Public My commission expires: _________________________
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CENTRAL NEW MEXICO COMMUNITY COLLEGE an educational institution created pursuant to Chapter 21, Article 16, NMSA 1978
By:______________________________________________ Robert Brown Date Vice President of Administrative Services
By:______________________________________________ Martin Serna Date Controller
By:______________________________________________ Tom Weeks Date Director, Purchasing and Materials Management
ACKNOWLEDGEMENT
STATE OF NEW MEXICO COUNTY OF BERNALILLO
) ) )
This instrument was acknowledged before me on ___________________, 2007, by Robert Brown, Vice President of Administrative Services of Central New Mexico Community College, an educational institution created pursuant to Chapter 21, Article 16, NMSA 1978. ______________________________________ Notary Public My commission expires: ________________________
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STATE OF NEW MEXICO COUNTY OF BERNALILLO
) ) )
This instrument was acknowledged before me on the ___ day of __________, 2007 by Martin Serna, Controller, Vice President of Administrative Services of Central New Mexico Community College, an educational institution created pursuant to Chapter 21, Article 16, NMSA 1978.
______________________________________ Notary Public My commission expires: _________________________
STATE OF NEW MEXICO COUNTY OF BERNALILLO
) ) )
This instrument was acknowledged before me on the ___ day of __________, 2007 by Tom Weeks, Director of Purchasing and Materials Management of Central New Mexico Community College, an educational institution created pursuant to Chapter 21, Article 16, NMSA 1978.
______________________________________ Notary Public My commission expires: _________________________
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CITY OF ALBUQUERQUE a New Mexico municipal corporation
By:______________________________________________ Bruce J. Perlman, Ph.D. Date Chief Administrative Officer
ACKNOWLEDGEMENT STATE OF NEW MEXICO COUNTY OF BERNALILLO ) ) )
This instrument was acknowledged before me on the ___ day of __________, 2007 by Bruce J. Perlman, Ph.D., Chief Administrative Officer of the City of Albuquerque, a New Mexico municipal corporation.
______________________________________ Notary Public My commission expires: _________________________
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EXHIBIT A