HomeMy WebLinkAbout2007-28ORDINANCE 2007-28
APPROVING THE SALES CONTRACT FOR MAPLE SHADE SHOPPING CENTER
WHEREAS, the Town Council of the Town of Pulaski finds that the sale of the Maple
Shade Shopping Center to Pulaski County is consistent with the health, safety and
welfare of the citizens of the Town of Pulaski,
NOW THEREFORE be it ORDAINED by the Town Council of the Town of Pulaski,
Virginia that the proposed sales contract for the Maple Shade Shopping Center,
attached as "Exhibit A", is hereby adopted.
FURTHER, the Town Manager is hereby authorized to execute any and all documents
to close this transaction involving the Maple Shade Shopping Center.
This ordinance is effective upon adoption and is hereby .adopted this 4th day of
December 2007 by the duly recorded vote of the Town Council of the Town of Pulaski,
Virginia as follows:
Jeffrey S. Worrell -Aye Joel B. Burchett, Jr -Aye
Dan Talbert, Jr. -Aye David L. Clark -Aye
Lane R. Penn -Aye Larry G. Clevinger, II -Aye
THE TOWN OF PULASKI, VIRGINIA
By:
harles L. ade, ayor
ATTEST:
Patricia Cruise, Clerk of Council
1 This contract is made this December , 2007, by and between the TOWN OF PLILASKI,
2 VIRGINIA, herein called Seller; and the COUNTY OF PULASKI, VIRGINIA, herein called Purchaser.
3 For the consideration stated below, and subject to the terms and conditions herein, Seller hereby
4 agrees to sell to Purchaser, and Purchaser hereby agrees to purchase from Seller:
5 Real Estate. All parcels of land, together with all improvements thereon and appurtenances thereto,
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located in the Town of Pulaski, Pulaski County, Virginia, currently bearing tax map ## 72-20-1 and 72-
140-160B, locally known as the Pulaski Business Plaza. and former Maple Shade Shopping Center
property, as described in a deed to Seller from New River Properties, Inc. and Earl W. Greene, dated
January 14, 1999, recorded in the Pulaski County Circuit Court Clerk's Office as land instrument # 1999-
275 (herein referred to as "the Real Estate"). The Real Estate does not include a 0.5 acre parcel of land as
depicted on Exhibit 1 hereto ("Seller's Retained Parcel"); Seller is retaining this parcel, however, use of
Seller's Retained Parcel will be restricted as provided below.
13 Third Party Tenancies. Seller represents and warrants that Schedule A hereto contains a
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complete and accurate "roster" of the identity of all current tenants/third parties who are presently in
actual possession of some portion of the Real Estate, and for each such tenant, correctly identifies (1)
each tenant, (2) the premises presently occupied, (3) the date of the lease with Seller, (4) the term of that
lease, (5) the rental amounts and payment periods, (6) whether Seller has obtained a security deposit, and
(7) whether that tenant is presently in default/breach of his/her/its lease, and if so, how and why. Seller
further represents and warrants that there are no oral leases, agreements, understandings, or the like
between Seller and any third party(-ies) pertaining to any part of the Real Estate and that complete,
executed originals of all leases identified in Schedule A, together with any and all modifications, addenda,
amendments, extensions, or other changes thereto, are being delivered to Purchaser contemporaneously
with the execution of this contract.
Provided that such tenants accept modification of their respective leases (as provided below),
Purchaser agrees to assume only the existing leases of only the tenants identified in Schedule B hereto,
which tenants are referred to herein as "Retained Tenants." However, even if a tenant is identified in
Schedule B as a Retained Tenant, Purchaser will riot assume the lease of, take subject to or accept the
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28 continuing tenancy of, or take subject to possession by, any tenant who/which is in default/breach far any
29 reason as of the time of closing or wholwhich rehires to accept the County's Novation Lease. Purchaser
30 will not assume the lease of, take subject to or accept the continuing tenancy of, or take subject to
31 possession by, any tenant who/which is not referred to in Schedule B, which tenants are referred to herein
32 as "Rejected Tenants."
33 Condition of Real Estate. Purchaser agrees to accept the Real Estate, which includes the structures
34 presently located thereon, in its present condition, "as is." This acceptance applies only to the physical
35 condition of the Real Estate.
36 Consideration. The Purchase Price for the Real Estate is $600,000.00, payable in full at the time
37 of closing.
38 Conditions. Purchaser's obligation to purchase the Property is expressly conditioned on the
39 following:
40 Pre-closing Removal of Rejected Tenants by Seller. Seller, at Seller's sole expense, must
41 take any and all action necessary to fully and finally remove (evict) from the Real Estate prior to the time
42 for closing all Rejected Tenants and any and all Retained Tenants who have defaulted breached under
43 their leases prior to the time for closing or who do not (for whatever reason) execute the County's
44 Novation Lease (so as to become Rejected Tenants). `Full and final removal (eviction)' includes removal
45 from the Real Estate of all Rejected Tenants, including their employees, agents, sub-tenants, and any and
46 all other persons or entities in possession, and all contents (e.g., equipment, furniture, inventory) of such
47 tenants.
48 Acceptance by Retained Tenants of County's Novation Lease and Attornment. Prior to
49 the time for closing, Seller, at Seller's sole expense, must obtain from each and every Retained Tenant a
50 new lease to replace the tenant's existing lease, which new lease is in form and content as provided by the
51 Purchaser ("County's Novation Lease"), by which the tenant, if a tenant for a term of years, (1) waives
52 and. releases all renewal-extension rights under the tenant's existing lease, (2) accepts a clear and
53 unequivocal definition the existing terns of the lease, t3) agrees that the lessor (al niay decline to renew or
54 extend the lease at the end of the present teen and (b) terminate the tenant's tenancy at any time during
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55 the present term and any rene«ral terms on 90 days prior written notice to the tenant, (4) attorns to
56 Purchaser (i.e., accepts Purchaser) as lessor effective as of the date of closing, and (5) affirms that
57 he/she/it has no claims pending or accrued against Seller, as landlord, as of the date of closing. The
58 County's Novation Lease shall be in form and content as provided by Purchaser's attorney. Rental
59 amounts for each Retained Tenant under the County's Novation Lease will remain the same as in such
60 tenant's respective. existing leases; hawever, each tenant will 'be solely responsible for his/herlits utilities,
61 interior maintenance, contents insurance, and taxes. If any Retained Tenant is a tenant from month to
62 month, then Seller must obtain from such tenant a written acknowledgment that the then owner of the
63 Real Estate may terminate such tenant's tenancy at any time on 30 days prior written notice to the tenant,
64 by the end of which time the tenant must fully vacate his/herlits premises or be liable for all expenses
65 and/or losses incurred by the owner due to holdover, damage to the premises, and/or litigation (including
66 owner's reasonable attorney's fees so incuned).
67 No Encnmbrances, Restrictions, or Adverse Zoning. The Real Estate must not be subject to
68 any (1) encroachments or encumbrances, including, but not limited to, easements of any nature for third
69 parties or other properties (other than underground lines for public utilities serving the Real Estate) which,
70 in Purchaser's sole determination may adversely impact Purchaser's use of the Real Estate, leases,
71 covenants, and/or third parties in possession, (2) private restrictions of any kind, or (3) zoning restrictions
72 or conditions which will or may, in Purchaser's sole determination, inhibit, prohibit, or otherwise
73 adversely affect Purchaser's intended use of the Property. Purchaser recognizes and accepts and will take
74 the Real Estate subject to the existing access easement over and through the western portion of the Real
75 Estate for access to/from Bowling Court from/to Commerce Street and Washington Avenue.
76 Release of Liens. Prior to the time for closing, Seller shall cause any and all liens for real
77 estate taxes (both county and town), utilities, and any other taxes, fees, or charges owed to Seller,
78 Purchaser, or any third party by any present or prior tenant and pertaining to the Real Estate to be paid,
79 satisfied, released, or exonerated through the end of the calendar year in which closing actually occurs.
80 Sub-division Approval. Prior to the time for closing, Seller shall obtain final,
81 unconditional approval of/from all applicable governmental authorities of the sub-division which will be
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82 effected by Seller's reservation of Seller's Retained Parcel, and Seller shall submit an approved sub-
83 division survey plat therefor to Purchaser's attorney, which plat will be recorded. with the deed of
84 conveyance.
85 Confirmation. Purchaser's attorney must have con .finned to his satisfaction the validity of all
86 representations and pre-closing obligations of Seller as stated herein prior to the date set for closing.
87 Survey. Prior to the time for closing, Purchaser may, at its sole option and expense, have
88 a survey performed of all or any part of the Real Estate. Should the survey reveal any matters (e.g.,
89 encroachments, undisclosed easements) which Purchaser deems objectionable, then Purchaser shall
90 promptly notify Seller of all objectionable matters revealed by the survey and request Seller to effect a
91 prompt remedy of same. However, if Seller is unable or unwilling to remedy all of the objectionable
92 matters to Purchaser's satisfaction, then Seller may terminate this contract, in which event this contract
93 shall then become null and void, neither party shall have any rights or recourses against the other.
94 Termination of Contract. If any condition to Purchaser's obligation to purchase the Property as
95 stated herein is not or cannot be satisfied, then Purchaser, at its sole discretion, may terminate this
96 contract, in which event this contract shall then become null and void, neither party shall have any rights
97 or recourses against the other.
98 Use Restrictions on Seller's Retained Parcel. Use of Seller's Retained Parcel shall be permanently
99 restricted to the uses permitted in subsections 411.2-1, -2, -3, -4, -5, -6 ; 411..3-3, -5, 6, 7, 8;
100 and 411.4- l , -2, -3, -4, -5, only, of the Pulaski Town Zoning Ordinance as adopted on March 4, 2003. All
101 other uses of Seller's Retained Parcel are prohibited. Subsequent amendments to that ordinance shall be
102 ineffective to alter the uses permitted and prohibited as stated herein. The then title owner(s) of all or any
103 part of the Real Estate shall have standing to enforce specifically this provision. Covenants to this effect
104 shall be included in the deed of conveyance and shall run with Seller's Retained Parcel for the benefit of
105 the Real Estate.
106 Title. Seller shall convey the Real Estate to Purchaser by deed with general warranty and English
107 covenants of title, free and clear of any and all liens, claims, adverse encumbrances and easements, and
108 title defects. Purchaser's attorney shall prepare the deed of conveyance for the Real Estate. Seller may
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109 have the deed reviewed by Seder's attorney; however, the deed as executed and tendered by Seller must
110 be in every aspect acceptable to Purchaser's attorney before Purchaser will be obligated to accept it.
111 Any and all liens, encumbrances, and/or title defects on or affect the Real Estate must, and shall
112 be, removed/satisfied by Seller, at Seller's sole expense, prior to or as of closing.
113 Transaction Costs and Ezpenses. Seller shall be safely responsible for (1) the fee of its attorney,
114 (2) all costs, expenses, fees, and charges related to Seller's Retained Parcel, including, but not limited to
115 survey, plat approval, and plat recordation costs, and (3) all costs, etc. necessary to satisfy all conditions
116 and perform all obligations of the Seller stated herein in order to consummate this transaction. Purchaser
117 shall pay the cost of recording the deed of conveyance and the fee of Purchaser's attorney incurred in this
118 transaction.
119 Closing and Possession. Closing may occur on or before December 20, 2007, provided that all
120 conditions for closing this transaction have been satisfied, and Seller accepts, executes, and delivers to
121 Purchaser this contract no later than December 5, 2007. Otherwise, closing will be postponed by one
122 business day for each day that any condition for closing remains unsatisfied or Seller does not deliver this
123 contract, executed and unchanged, to Purchaser, up to no more than 15 consecutive business days.
124 Closing will be in the law office of Purchaser's attorney, Samuel D. Campbell, at 233 East Main Street,
125 Pulaski, Virginia. Seller shall put Purchaser in full possession of the Real Estate as of the time of closing.
126 Risk of Loss; Intervening Casaalty Loss. Risk of damage or lass to the Real Estate shall remain on
127 Seller until the time of closing. Seller shall maintain hazard (fire and extended coverage) insurance on the
128 Real Estate continuously until the time of closing in an amount sufficient to fully restore the Real Estate
129 in the event of a casualty loss. if all or any portion of the Real Estate is damaged or destroyed due to any
130 cause at any time prior to closing, then Purchaser, at its sole option, may (1) terminate this contract, (2)
131 honor this contract, provided that (a) Seller promptly and unconditionally assigns all insurance proceeds
132 to Purchaser, (b) the amount of the insurance proceeds will be sufficient to effect repairs/replacements,
133 and (c) the insurance proceeds are or will be promptly and fully paid by the insurer(s), all within 60
134 consecutive calendar days after the casualty loss occurred, and the time for closing shall be extended
135 accordingly, or (3) accept the Real Estate in it then condition, after a downward adjustment of the
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136 Purchase Price as the parties then agree to; however, if the parties cannot agree on a new Purchase Price,
137 then Purchaser may still terminate this contract.
138 Seller's Representations. Seller affirmatively represent and affirm to Purchaser that { 1) Seller is
139 the sole, fee simple owner of the Real Estate and has the complete right and ability to sell and convey the
140 Real Estate without the consent or joinder of, or any release from, any third party; (2) Seller has no
141 knowledge of (a) hazardous, toxic, or noxious substances, (b) underground storage tanks or pipelines, (c)
142 dump/waste disposal sites (active or inactive), (d) cemeteries, (e) pending or threatened claims (including
143 mechanic's liens and eminent domain actions) or litigation of any nature, or (f) pending or threatened
144 boundary line disputes, on, in, under, or concerning the Real Estate; (3) Seller, as a municipality, has held
145 or will hold timely and properly noticed and conducted public hearings on the disposition of the subject
146 property, in compliance with Virginia Code §§15.2-1800.B & -1813; and (4) the Pulaski Town Council
147 has adopted or will adopt an ordinance or resolution authorizing this sale, the conveyance of the Real
148 Estate, and the manager of the Town of Pulaski to execute all documents associated with this sale and
149 conveyance on behalf of Seller.
150 Default/Breach. In the event that either party defaults breaches this contract, the defaulting party
151 shall be liable to the other party for any damages, litigation expenses, and reasonable attorney's fees
152 incurred by the other party due to such default/breach. Either party may compel specific performance,
153 provided that all conditions of this contract have been met.
154 Binding, Complete Agreement. This contract shall be binding on and inure to the benefit of the
155 parties, jointly and severally, and the parties' respective heirs, assigns, and successors in interest. This
156 contract shall be governed by the laws of the Commonwealth of Virginia and deemed accepted in
157 Virginia (no matter where actually signed). This document contains the entire agreement between the
158 parties hereto. No modification, extension, revocation/rescission, or assignment of this contract shall be
159 effective unless in writing referring to this contract and signed by all parties hereto. Any and all prior
160 agreements, representations, negotiations, discussions, other communications, and/or contracts, whether
161 oral or written, of whatever nature, at whatever time such occurred, and between or involving whomever,
162 pertaining to matters addressed in this document shall be conclusively deemed merged into and
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163 superseded by the provisions of this contract. The date of this contract stated at the top of the first page
164 shall be deemed the date on which this contract is accepted and thus made. The provisions of this
165 contract shall not merge into the deed of conveyance or the assignments and shall survive closing.
166 Representation by Legal Counsel. Both parties acknowledge that prior to and through the execution
167 of this contract each has been represented by separate legal counsel of each party's choosing.
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169 Seller: TOWN OF PULASKI, VIRGINIA
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173 by
174 John J. Hawley, manager
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177 Purchaser: COUNTY OF PULASKI, VIRGINIA
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181 by
182 Peter M. Huber, administrator
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SCHEUDLE B
RETAINED TENANTS
Virginia's Southwest Blue Ridge Highlands, Inc. d/ls/a Blue Ridge Travel Associates
Cavalier Supply
Dollar General Stores
Pam Whitesell, Bright Eyes, Inc., d,~`b/~! Hope City Cafe
Medical Transport Management, Inc.
Yolanda. Hunter, Lady's and Sis's Productions and Gifts, Inc., d/b/a Lis de la Valee
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SCHEUDLE B
RETAINED TENANTS
Virginia's Southwest Blue Ridge Highlands, Inc. d/bia Blue Ridge Tra~rel Associates
Ca~.~alier Supply
Dollar General Stores
Pam Whitesell, Bright Eyes, lnc., d/blal Hope City Cafe
Medical Transport Management, Inc.
~'olanda Hunter, Lady's and Sis's Productions and Gifts, Inc., d/b/a Lis de la Valee