ORD NO 17-2023 CITY OF VAN BUREN,ARKANSAS
ORDINANCE NO. 11-2023
BE IT ENACTED BY THE CITY COUNCIL,FOR THE CITY OF VAN BUREN,ARKANSAS
AN ORDINANCE TO BE ENTITLED:
AN ORDINANCE AUTHORIZING THE MAYOR TO ENTER
INTO A PURCHASE OF BUSINESS AGREEMENT WITH
CEDARS COUNTRY CLUB, INC., AND TO PAY THE
PURCHASE PRICE, DECLARING AN EMERGENCY, AND FOR
OTHER PURPOSES.
WHEREAS, The Van Buren City Council has determined that it is in the best interest of the public to
enter into an agreement with Cedars Country Club,Inc.,and to pay the purchase price.
NOW,THEREFORE,BE IT ORDAINED AND ENACTED BY THE CITY COUNCIL OF
THE CITY OF VAN BUREN,ARKANSAS,THAT:
SECTION 1: The Van Buren City Council hereby authorizes the Mayor to enter into a purchase of
business agreement with Cedars Country Club,Inc.,and to pay the purchase price of
$190,000.00(One hundred ninety thousand dollars),as detailed in the attached agreement
(Exhibit"A").
SECTION 2: In order to preserve the public health, safety, and welfare in the City of Van Buren, an
emergency is declared to exist, and this ordinance shall take effect from and after its
passage and approval.
IN WITNESS WHERE ,the City of Van Buren,Arkansas,by its City Council,did pass,
approve,and adopt,by a vote of Mor and against,the foregoing Ordinance at its regular meeting
held on the 241 day of April 2023.
41 osep P.Hurst
Mayor
STED• APP O
YXYLQ�d
Shawnna Reyn1lidsV Jacob Howell
City Clerk/Treasurer City Attorney
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PURCHASE OF BUSINESS AGREEMENT
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THIS PURCHASE OF BUSINESS AGREEMENT(the"Agreement")made and entered into this
day of ,2023 (the"Execution Date"),
BETWEEN:
Cedars Country Club,Inc,of 1301 City Park Road,Van Buren,AR 72956
(the"Seller")
OF THE FIRST PART
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City of Van Buren,Arkansas of 1003 Broadway,Van Buren,AR 72956
(the"Purchaser")
OF THE SECOND PART
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BACKGROUND
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The Seller owns a golf course at 1301 City Park Road,Van Buren,AR 72956,
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The Seller owns and desires to sell certain assets of its business(the"Assets")to the Purchaser, '
subject to any exclusions in this Agreement,and the Purchaser desires to buy the Assets,
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IN CONSIDERATION of the provisions contained in this Agreement and for other good and j
valuable consideration,the receipt and sufficiency of which consideration is acknowledged,the I
Parties agree as follows:
Definitions
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The following definitions apply to the Agreement:
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The"Assets" to be included in this Agreement include all SeIler's assets.There are no excluded
assets.The Assets consist of the following:
all equipment used in carrying on the Seller,
all inventory and packaging;
all outstanding and confirmed sales orders;
all interests of the Seller under contracts or agreements relating to the Seller;
all books,records,and files relevant to carrying on the Seller;
title to registered or unregistered trademarks and trade navies;
the goodwill of the Seller,including the business name;
all leasehold interests.
"Closing"means the completion of the purchase and sale of the Assets as described in tlus
Agreement by the payment of agreed consideration and the transfer of title to the Assets;
"Envirorunental Law"means any and all statutes,regulations,common Iaws,or any other
directives having force of law pertaining to the protection of the environment,including but not
limited to all laws affecting the production,manufacture,storage,transport,and disposal of
Hazardous Materials.;
"Hazardous Material"means any material or substance of any description that could reasonably
be expected to cause harm or damage to the health of man or any other living organism.;and
"Parties"means both the Seller and the Purchaser,and"Party"means any of them.
Sale
Subject to the terms and conditions of this Agreement,and in reliance on the representations,
warranties,and conditions set out in this Agreement, the Seller agrees to sell the Assets to the
Purchaser,and the Purchaser agrees to purchase the Assets Kom the Seller.
Pin-chase Price
The Parties agree that the Purchase Price of one hundred ninety thousand dollars($190,000.00)
for the Assets will be allocated among the Assets as follows,subject to required adjustments that
are agreed upon by the Parties:
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The Parties agree to cooperate in the filing of elections under the Internal Revenue Code and any
other applicable taxation legislation to give the required or desired effect to the allocation of the
Purchase Price,
Closing
The Closing of the purchase and sale of the Assets will take place on the day of
(the"Closing Date")at the offices of the Seller or at such other
time and place as the Parties mutually agree.
At Closing and upon the Purchaser paying the Purchase Price in full to the Seller,the Seller will
deliver the Assets to the Purchaser.The Seller will deliver to the Purchaser possession of the
Assets,in the same condition as on the Execution Date,and free and clear of any liens,charges,
rights of third parties,or any other encumbrances,except those attached as a result of the
Purchaser's actions.
At Closing and upon the Purchaser paying the Purchase Price in full to the Seller,the Seller will
provide the Purchaser with duty executed forms and documents evidencing transfer of the Assets,
where required including,but not limited to, bills of sale,assigrunents,assurances,and consents.
The Seller will also cooperate with the Purchaser as needed in order to effect the required
registration,recording,and filing with public authorities of the transfer of ownership of the
Assets to the Purchaser.
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Payment
The Purchase Price for the Assets will be paid by the Purchaser in one lump sum payment to the
Seller in the form of a certified check,a TeIlees Check,or an electronic money or Rinds transfer:
In the case of an electronic money or funds transfer,the Seller will give notice to the Purchaser
of the bank account particulars at least S business days prior to the Closing Date.
The Purchaser is responsible for paying all applicable taxes,including federal sales tax,state
sales tax,duties,and any other taxes or charges payable pursuant to the transfer of the Assets
from the Seller to the Purchaser.
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Seller's Representations and Warranties
The Seller represents and warrants to the Purchaser that:
1. The Seller has full legal authority to enter into and exercise its obligations under this
Agreement;
2. The Seller is.a corporation duly incorporated or continued,validly existing,and in good
standing and has all requisite authority to carry on business as currently conducted; !I
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3. The corporate Seller,Cedars Country Club,Inc.has all necessary corporate power,
authority and capacity to enter into this Agreement and to carry out its obligations.The
execution and delivery of this Agreement,and this transaction has been duly authorized
by all necessary corporate action on the part of the Seller;
4, The Seller is the absolute beneficial owner of the Assets,with good and marketable title,
free and clear of any liens,charges,encumbrances or rights of others.The Seller is
exclusively entitled to possess and dispose of the Assets;
5. To the best knowledge of the the officers of the Seller there is no pending or anticipated
claim against the Assets or against the Seller's ownership or title in the Assets or against
the Seller's right to dispose of the Assets;
6. No third party contract is outstanding that could result in a claim against or affecting the
Assets in whole or in part either now or in the future;
7. The Seller does not have any outstanding contracts,agreements,or commitments of any I
kind,written or oral,with any third party regarding the Assets,except for any material
contracts described in,and/or attached to this Agreement.The Seller represents and
warrants that no material default or breach exists with regard to any presently outstanding
material contract;
8. Execution of this Agreement will not hinder or unfairly disadvantage any pre-existing
creditor; I
9. Except as otherwise provided in this Agreement,there has been no act or omission by the '
Seller that would give rise to any valid claim relating to a brokerage commission,finder's
fee or other similar payment;
10.The Seller is a resident of the United States for the purposes of the Internal Revenue
Code;
11,The Seller has withheld all amounts required to be withheld under income tax legislation
and has paid all amounts owing to the proper authorities;
12,The Seller is not bound by any written or oral pension plan or collective bargaining
agreement or obligated to make any contributions under any retirement income plan,
deferred profit sharing plan or similar plan;
13.The Seller will not dismiss any current employees or hire any new employees,or
substantially change the role or title of any existing employees,provide unscheduled or y
irregular increases in salary or benefits to employees,or institute any significant changes
to the terms of any employee's employment,after signing this Agreement,unless the
Purchaser provides written consent;
14.There are no claims threatened or pending against the Seller by any current or past
employee relating to any matter arising from or relating to the employment of the
employee;
15.All of the assets of Seller are on the Property and will remain on the Property in the
condition they are in,for the benefit of the Purchaser;
16.The Seller does not warranty the working order of the assets,but will provide Purchaser
an opportunity to inventory and evaluate the assets prior to closing; !
17.The Seller is operating in accordance with all applicable laws,rules,and regulations of
the jurisdictions in wlichr it is carried on.In compliance with such laws,the Seller has
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duly licensed,registered,or qualified the Seller with the appropriate authorities and
agencies;
18.The Seller has not produced,manufactured,stored,transported or disposed of any
Hazardous Materials of any kind and to the best knowledge of the Seller;no discharge,
leakage or release of Iazardous Materials, whether accidental or otherwise,has occurred
for which the Purchaser could ultimately become liable.There are no ongoing,pending,
threatened or anticipated civil or criminal actions,enquiries or investigations with regard
to the breach of any applicable Environmental Laws;
19.The Seller maintains insurance policies on the Assets and such policies are in fi1I1 farce
and effect and of an adequate value as would be reasonable in its industry.Tire Seller has
neither defaulted under these insurance policies,whether as a result of failure to pay
premiums or due to any other cause,nor has the Seller failed to give notice or make a
claim under these insurance policies.in a timely mariner;
20.The trademarks and trade names used in carrying on the business of the Seller are owned
exclusively and validly by the Seller.The trademarks and trade names are duly registered
with the appropriate public authorities in order that the rights associated with the
trademarks and trade names are protected.To the best knowledge of the officers of the
Seller;there are no claims of infringement existing against the patents,trademarks,
copyrights or any other trade names used by the Seller;
21.Any trademarks aid trade names used in whole or in part in or required for the proper j
operation of the business of the Seller are validly and beneficially owned by and for the
sole and exclusive use of the Seller;
22.To the best knowledge of the officers of the Seller,the conduct of the Seller does not
infringe on the patents,trademarks,trade names or copyrights,whether domestic or
foreign,of any other person,firm or corporation;
23.The Seller owns or is licensed to use all necessary software and it can continue to use any
and all computerized records,files and programs after the Closing Date in the same
manner as before the Closing Date;
24.The Seller has filed all tax reports and returns required in the operation of its business and
has paid all taxes owed to all taxing authorities,including foreign taxing authorities,
except amounts that are being properly contested by the Seller,the details of this contest
having been provided to the Purchaser;and
25.This Agreement has been duly executed and delivered by the Seller and constitutes a
legal and binding obligation of the Seller,enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy and insolvency,by other laws
affecting the rights of creditors generally,and by equitable remedies granted by a court of
competent jurisdiction.
The representations and warranties given in this Agreement are the only representations and
warranties.No other representation or warranty,either expressed or implied,has been given by
the Seller to the Purchaser,including,without limitation,any representations or warranties j
regarding tine merchantability of the Assets or their fitness for a particular purpose. !
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The Seller warrants to the Purchaser that each of the representations and warranties made by it is
accurate and not misleading at the Closing Date.The Seller acknowledges that the Purchaser is
entering into this Agreement in reliance on each representation and warranty.
The Seller's representations and warranties will survive the Closing Date of this Agreement.
Where the Purchaser has a claim against the Seller relating to one or more representations or
warranties made by the Seller,the Seller will have no liability to the Purchaser unless the
Purchaser provides notice in writing to the Seller containing full details of the claim on or before
the third anniversary of the Closing Date.
Where the Purchaser has a claim against the Seller relating to one or more representations or
warranties made by the Seller,and the Purchaser is entitled to recover damages from a third party
then the amount of the claim against the Seller will be reduced by the recovered or recoverable
amount less all reasonable costs incurred by the Purchaser in recovering the amount from the
third party.
Purchaser's Representations and Warranties
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The Purchaser represents and warrants to the Seller the following;
1. The Purchaser has full legal authority to enter into and exercise its obligations under this
Agreement, i
2. The corporate Purchaser has all necessary corporate power,authority and capacity to
enter into thus Agreement and to carry out its obligations tinder this Agreement.The '
execution and delivery of this Agreement,and this transaction has been duly authorized
by all necessary corporate action on the part of the corporate Purchaser;
3. The Purchaser has firnds available to pay the full Purchase Price and any expenses
accumulated by the Purchaser in connection with this Agreement and the Purchaser has
not incurred any obligation,commitment,restriction,or liability of any kind,absolute or f
contingent,present or fixture,which would adversely affect its ability to perform its
obligations under this Agreement;
4, The Purchaser has not conunitted any act or omission that would give rise to any valid
claim relating to a brokerage commission,finder's fee,or other similar payment;
5. The Purchaser is a resident of the United States for the purposes of the Internal Revenue
Code;
b. This Agreement has been duly executed by the Purchaser and constitutes a legal and
binding obligation of the Purchaser,enforceable in accordance with its terms,except as
enforcement may be limited by bankruptcy and insolvency,by other laws affecting the
rights of creditors generally,and by equitable remedies granted by a court of competent
jurisdiction;and
7. The Purchaser has no knowledge that any representation or warranty given by-the Seller i
in this Agr=nient is inaccurate or false.
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The representations and warranties given in this Agreement are the only representations and
warranties.The Purchaser has given no other representation or warranty,either expressed or
implied,to the Seller.
The Purchaser warrants to the Seller that each of the representations and warranties made by it is
accurate and not misleading at the date of Closing.The Purchaser aclunowledges that the Seller is
entering into this Agreement in reliance on each representation and warranty.
The Purchaser's representations and warranties will survive the Closing Date of this Agreement.
Where the Seller has a claim against the Purchaser relating to one or more representations and
warranties made by the Purchaser,the Purchaser will have no liability to the Seller unless the }
Seller provides notice in writing to the Purchaser containing full details of the claim on or before
the third anniversary of the Closing Date. i
Where the Seller has a claim against the Purchaser relating to one or more representations or
warranties made by the Purchaser,and the Seller is entitled to recover damages from a third party
then the amount of the claim against the Purchaser will be reduced by the recovered or
recoverable amount less all reasonable costs incurred by the Seller in recovering the amount
from the third party.
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Conditions Precedent to be Performed by the Purchaser i
The obligation of the Seller to complete the sale of the Assets under this Agreement is subject to I
the satisfaction of the following conditions precedent by the Purchaser,on or before the Closing
Date,each of which is acknowledged to be for the exclusive benefit of the Seller and may be }
waived by the Seller entirely or in part: {
all of the representations and warranties made by the Purchaser in this Agreement will be true
and accurate in all material respects on the Closing Date;
the Purchaser will obtain or complete all forms,documents,consents,approvals,registrations,
declarations,orders,and authorizations from any person or any governmental or public body,
required of the Purchaser in connection with the execution of this Agreement;and
This Agreement is contingent upon approval by the City Council of Van Buren,Arkansas.
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Conditions Precedent to be Performed by the Seller
The obligation of the Purchaser to complete the purchase of the Assets under this Agreement is i
subject to the satisfaction of the following conditions precedent by the Seller,on or before the
Closing Date,each of which is acknowledged to be for the exclusive benefit of the Purchaser and
may be waived by the Purchaser entirely or in part:
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All of the representations and warranties made by the Seller in this Agreement will be true and
accurate in all material respects on the Closing Date;
The Seller will obtain and complete any and all forms,documents,consents,approvals,
registrations,declarations,orders,and authorizations from any person or governmental or public
body that are required of the Seller for the proper execution of this Agreement and transfer of the
Assets to the Purchaser;
No substantial damage to or alteration of the Assets that would adversely affect their value will
occur between the date this Agreement is signed and the Closing Date;
The Seller will have obtained any necessary consents for assigning any leases to the Purchaser as
well as providing estoppel certificates from such owners or landlords that there are no arrears of
rent,no breaches under such leases and the amount of the security deposits held by such third
parties;
The Seller will execute and deliver bills of sale for the Assets in favor of the Purchaser;
The Seller will provide the Purchaser with complete information concerning the operation of the
Seller,in order to put the Purchaser in a position to carry on in the place of the Seller;and
Immediately following the Closing,the Seller will discontinue use of the name Cedars Country
Club,Inc.except in connection with the collection of the accounts receivable of the Seller and
the disposing of any inventory that were not part of the Assets sold to the Purchaser, 1
Conditions Precedent Not Satisfied
If either Party fails to satisfy any of its conditions precedent as set out in this Agreement on or
before the Closing Date and that condition precedent was not waived,then this Agreement will
be null and void and there will be no fiirther liability as between the Parties.
Diselosui•e
Upon the reasonable request of the Purchaser,the Seller will,from time to time,allow the
Purchaser and its agents,advisors,accountants,employees,or other representatives to have
reasonable access to the premises of the Seller and to all of the books,records,documents,and
accounts of the Seller,during normal business hours,between the date of this Agreement and the
Closing Date,in order for the Purchaser to confirm the representations and warranties given by
the Seller in this Agreement.
Employees
The Purchaser will not be offering employment to any existing officer or employee of the Seller
(the"Employees").All individuals who are officers or employees of the Seller up to and
including the Closing Date will remain the full responsibility of the Seller.Any individual hired
by the Seller after the Closing Date will become the responsibility of the Purchaser.
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t3'.�`�;�„r�a" _"• ",.h,.s `z;xe r s.., "'<urr ^'.`, ;''.c,::r..;..,r f.- �'t'�a': =- 'sr= .T ..r„�^€.g;;�.' -r
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The Seller will deliver to the Purchaser prior to the Closing Date,resignations of all Employees
of the Seller,each such resignation will be effective on the Closing Date.The Seller will pay all
Employee compensation incurred by it up to and including the Closing Date including all
salaries,benefits,bonuses including share bonuses and share options and any other compensation
owing to the Employees up to and including the Closing Date,The Seller will be responsible for
all severance benefits,vacation days,sick days,personal days and other compensated time off
accrued by all Employees tip to and including the Closing Date.
The Seller is in compliance with all applicable foreign and domestic statutory rules and
regulations respecting employment and employment practices and has withheld and reported all
amounts required by law with respect to wages and salaries and the Seller is not liable for any
accrued taxes or penalties and is not liable or in arrears to any government pension,social
security or unemployment insurance authority.The Seller indemnifies the Purchaser for any
future liabilities relating to employment and employment practices where the subject of the
liability occurred prior to or on the Closing Date.
Nan-Assuunntion of Liabilities €
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It is understood and agreed between the Parties that the Purchaser is not assuming and will not be
liable for any of the liabilities,debts or obligations of the Seller arising out of the ownership or
operation of the Seller prior to and including the Closing Date,
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The Seller will indemnify and save harniless the Purchaser,its officers,directors,employees,
agents and shareholders from and against all costs,expenses,losses,claims,and liabilities,
including reasonable legal fees and disbursements,or demands for income,sales,excise or other
taxes,suffered or incurred by the Purchaser or any of the above mentioned persons arising out of
the ownership or operation of the Seller prior to and including the Closing Date.
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Transfer of Third Party Contracts
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This Agreement is not to be construed as an assigrunent of any third party contract from the
Seller to the Purchaser if the assignment would be a breach of that third party contract.
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The Purchaser will be solely responsible for acquiring new contracts with third parties where the i
existing contracts are not legally assignable from the Seller to the Purchaser.
Notwithstanding any other provision in this Agreement to the contrary,the Seller will not be }
liable for any losses,costs or damages of any kind including toss of revenue or decrease in value
of the Seller resulting from the failure of the Purchaser to acquire any third party contracts,
Notices
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-s�';,' ill;, a";�"=:�':ea�,,,:3'.�5, �.a,, �; ..,.;�" ;:F.��F �3' .. F,��:��, •:: `ai-n.. .�cw...:_ '�.xt�".
��"� �`:a"e ::,v,., :..,tz." �a.'.�r,,,,< ,-�;;' ,,,,n' ;.���,� .,3a;; "a.. .=.3i,"�`'-", wr �- •a,..�..., � •.:
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Any notices or deliveries required in the performance of this Agreement will be deemed
completed when hand-delivered,delivered by agent,or seven(7)days after being placed in the
post,postage prepaid,to the Parties at the addresses contained in this Agreement or as the Parties
may later designate in writing,
Expenses/Costs
The Parties agree to pay all their own costs and expenses in connection with this Agreement,
Severability
The Parties acknowledge that tl-is Agreement is reasonable,valid,and enforceable;however,if
any part of this Agreement is held by a court of competent jurisdiction to be invalid,it is the
intent of the Parties that such provision be reduced in scope only to the extent deemed necessary
to render the provision reasonable and enforceable and the remainder of the provisions of this
Agreement will in no way be affected or invalidated as a result.
Where any provision in this Agreement is found to be unenforceable,the Purchaser and the
Seller will then make reasonable efforts to replace the invalid or unenforceable provision with a
valid and enforceable substitute provision,the effect of which is as close as possible to the
intended effect of the original invalid or unenforceable provision.
Governing Latin
This Agreement will be governed by and construed in accordance with the laws of the State of
Arkansas.
The courts of the State ofArkansas will have jurisdiction to settle any dispute arising out of or in
connection with this Agreement.
General Provisions
This Agreement contains all terns and conditions agreed to by the Parties. Statements or
representations which may have been made by any Party to this Agreement in the negotiation
stages of this Agreement may in some way be inconsistent with this final written Agreement.All �
such statements are declared to be of no value to either Party. Only the written terms of this
Agreement will bind the Parties.
This Agreement may only be amended or modified by a written instrument executed by all of the i
Parties.
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u rrna';c�. �.�; c�,,r�A :;'�'� k�- 333 ���"E��',�rfi•' °a ::>s:�,. �"r�°�;" �a a �.•� ,.,r�;��rt��.;%., �x„=..,
A waiver by one Party of any right or benefit provided in this Agreement does not infer or permit
a further waiver of that right or benefit,nor does it infer or permit a waiver of any other right or
benefit provided in this Agreement.
This Agreement will not be assigned either in whole or in part by any Party without the written
consent of the other Party,
This Agreement will pass to the benefit of and be binding upon the Parties'respective heirs,
executors,administrators,successors,and permitted assigns.
The clauses,paragraphs,and subparagraphs contained in this Agreement are intended to be read
and construed independently of each other.If any pact of this Agreement is held to be invalid,
this invalidity will not affect the operation of any other part of this Agreement.
All of the rights,remedies and benefits provided in this Agreement will be cumulative and will
not be exclusive of any other such rights,remedies and benefits allowed by law or equity.
Time is of the essence in this Agreement.
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This Agreement may be executed in counterpart.
Headings are inserted for the convenience of the Parties only and are not to be considered when
interpreting this Agreement.Words in the singular mean and include the plural and vice versa. I
Words in the masculine gender include the feminine gender and vice versa,Words in the neuter
gender include the masculine gender and the feminine gender and vice versa.
IN WITNE S WHEREOF he Parties have duly affixed their signatures under hand and seal on
this—� day of ,2023.
Cedars Country Club,Inc,
Signature-4-
Printed Names
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City of van Buren rkns a
Signature:
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Printed Name..
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