Legislation # 06-0120 Enactment Number none
Type Acquisitions Effective Date none
Introduction Date 2/22/2006
Title Resolution authorizing the execution of an agreement of sale between the City of Hampton (the “Purchaser”) and MAGYAR CSALAD, L.L.C. (the “Seller”).
 
Legislation History 06-0120
DateNotice Of ActionDescription
2/22/2006 Adopted
2/13/2006 Received By Clerk's Office
 
View Attachments 06-0120
FileTypeSizeDescription
Old Post Office 2.9.06 FINAL AGREEMENT.rtf Contract 32K Post Office Agreement
Valet Parking Exhibit.pdf Map 672K Proposed Valet Parking spaces
JDR Parking Exhibit.pdf Map 2611K Proposed Parking Former JDR Building
 
Legislation Text 06-0120
[This Agreement is subject to the formal approval of the City Council of the City of Hampton by a duly adopted resolution authorizing the acquisition of the subject property

[This Agreement is subject to the formal approval of the City Council of the City of Hampton by a duly adopted resolution authorizing the acquisition of the subject property.]

 

AGREEMENT OF SALE

 

THIS AGREEMENT OF SALE (the Agreement) is made by and between Magyar Csalad, L.L.C., a Virginia limited liability company (the Seller), and The City of Hampton, a municipal corporation of the Commonwealth of Virginia (the Purchaser).

 

Purchaser agrees to buy and Seller agrees to sell the hereinafter real estate, and all improvements thereon, and appurtenances thereto, on the terms and conditions as set forth herein

 

NOW THEREFORE, in consideration of the purchase price and the mutual promises contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. REAL PROPERTY. Purchaser agrees to buy and Seller agrees to sell the following real estate and all improvements thereon, and appurtenances thereto on the terms and conditions set forth herein:

 

Street Address: 132 East Queen Street

Hampton, Virginia (City)

 

Legal Description: Parcel B, Boundary Line Survey of Parcel B

containing 0.5326 acres, more or less

City of Hampton, Virginia

 

Together with all right, title and interest of Seller, if any, on and to any and all easements, rights of way, private roads and other rights of access, ingress and/or egress adjacent to in any way benefiting the above described property. The above described real property is referred to as the "Property. Purchaser acknowledges that the Property and all appurtenances and improvements thereon are being sold AS-IS. The Seller makes no representations regarding any environmental issues. The Property is sold in its present physical condition AS-IS.

 

2. PURCHASE PRICE. The total consideration is as follows: One Million Six Hundred Thousand and 00/100 Dollars ($1,600,000.00), (the Purchase Price) in full for the Property. The Purchase Price represents the value of all estates of interests in such Property. The Purchase Price is based upon the total parcel and is not based on a per acre basis. The Purchase Price shall be paid to Seller as follows:

 

a. Thirty Thousand and 00/100 Dollars ($30,000.00) ("Earnest Money Deposit") payable upon the full execution of this Agreement by all parties by wire transfer of funds or certified check to the Seller and held in escrow pursuant to the terms of this Agreement by Spirn, Tarley, Robinson & Tarley, PLLC ("Escrow Agent") subject to paragraph 3a below.

 

b. Ten Thousand and 00/100 Dollars ($10,000.00) earnest money deposit ("Additional Earnest Money Deposit") payable on the 61st day from February 27, 2006, payable by wire transfer of funds or certified check to the Seller and held in escrow pursuant to the terms of this Agreement by the Escrow Agent and which shall be applied to the Purchase Price and shall be payable to the Seller at Settlement.

 

c. On June 15, 2006, the Additional Earnest Money Deposit shall be paid to the Seller and shall become a nonrefundable deposit to be applied towards the Purchase Price, subject to paragraphs 8 and 11 below.

 

d. The sum of One Million Three Hundred Twenty Thousand and 00/100 Dollars ($1,320,000.00) shall be paid by the Purchaser to the Seller at Settlement in lawful money of the United States of America in cash, wire transfer funds, or certified funds.

 

e. The balance of the purchase price of the Property in the sum of Two Hundred Forty Thousand and 00/100 Dollars ($240,000.00) shall be donated to the City of Hampton as a charitable contribution by the Seller. Both the Purchaser and the Seller agree that the City of Hampton is providing no consideration of any amount for this $240,000.00 charitable contribution and that the Seller is making this contribution with donative intent and has no expectation of receiving any economic benefit from the City of Hampton in exchange.

 

3. RIGHT OF ENTRY/DUE DILIGENCE/CONTINGENCIES.

 

a. The Purchaser, its agents, or its parties may exercise the right to enter upon the Property for such purposes as may be necessary for the performance of any due diligence, structural inspections, surveys, environmental or any other studies upon reasonable notice to the Seller. The Purchaser is hereby granted sixty (60) days from February 27, 2006 (the Due Diligence Period) to inspect the Property in order to determine the structural soundness of the building located on the Property and the suitability of the said building for the proposed use by the Purchaser, and the existence of any adverse environmental matters or conditions in, on, under, about or migrating from or onto the Property. If the Purchaser determines during the Due Diligence Period that the soundness or condition of the building on the Property is not suitable for its intended use, or determines the existence of any adverse environmental matters or conditions in, on, under, about or migrating from or onto the Property, the Purchaser reserves the right to terminate this Agreement by giving Seller written notice of termination not later than 5:00 p.m. on the last day of the Due Diligence Period. Upon receipt of such notification, the Earnest Money Deposit shall be returned to the Purchaser within fourteen (14) business days and thereafter, neither party shall have any further rights against or obligations or liability to the other hereunder. If no written notice under this section is provided to the Seller within the 60-day period, these conditions shall be considered satisfied, and Thirty Thousand and 00/100 Dollars ($30,000.00) of the Earnest Money Deposit shall be paid to the Seller and shall become a nonrefundable deposit to be applied towards the Purchase Price, subject to paragraph 8 and 11 below. If Purchaser fails to purchase the Property for any reason, Purchaser shall (a) restore the Property disturbed to substantially the same condition existing immediately before any damage was caused by Purchaser, reasonable wear and tear excepted, to the extent such change in the condition is caused by any act or omission of Purchaser or its agents, employees and/or contractors; and (b) deliver to Seller, without cost to Seller and without any representation or warranty, all third party studies and reports the Property and performed or caused to be performed by Purchaser. To the extent permitted by law and without waiving its sovereign immunity, Purchaser shall be responsible for any losses, costs or expenses arising out of any claims of damage to persons or the Property caused by the Purchaser, its employees, agents or consultants during the performance of any activities in furtherance of its due diligence. Notwithstanding any provisions in this Agreement to the contrary, Purchasers obligation under this paragraph shall survive the termination of this Agreement.

 

b. The Purchasers obligation to purchase the Property is subject to (i) the approval of interior and exterior site plans and specifications by the City of Hampton Departments of Planning and Economic Development and; (ii) a determination that the Property is in compliance with the Downtown Master Plan. If either one of the foregoing contingencies is not satisfactorily completed on or before June 23, 2006, then the Purchaser shall have the right to terminate this Agreement by giving Seller written notice of termination not later than 5:00 p.m. on June 23, 2006. This Agreement is further subject to an executed agreement of sale for the resale of the Property approved by the City Council of the City of Hampton on or before February 22, 2006., If this contingency is not satisfactorily completed on or before February 22, 2006, then the Purchaser shall have the right to terminate this Agreement by giving Seller written notice of termination not later than 5:00 p.m. on February 23, 2006. Upon receipt of such notification of termination, neither party shall have any further rights against or obligations or liability to the other hereunder, other than as set forth in paragraph 2c and 3a.

 

4. TENANCIES/INDEMNITY. The Seller will compensate the tenant and/or tenants of said Property, if applicable, for any damages said tenant or tenants may suffer and sustain by reason of the conveyance agreed to hereunder and will save harmless the Purchaser from any and all claims that may be made by said tenant or tenants by reasons of such conveyance.

 

5. SETTLEMENT. Settlement (Settlement) shall occur at the Office of the Department of Economic Development, One Franklin Street, Suite 600, Hampton, Virginia 23669, on or before June 30, 2006. Time is of the essence. Possession of the Property shall be given to the Purchaser at Settlement.

 

6. PRORATIONS. All rents, interest, taxes, utilities and other appropriate items shall be prorated and apportioned on a per diem basis from the date of Settlement. Assessments, general and special in nature, pending or confirmed shall be paid or satisfied in full by the Seller at Settlement.

 

7. SETTLEMENT COSTS AND EXPENSES/TAX CONSEQUENCES OF TRANSACTION. The Purchaser shall bear the cost of performing any studies required by the Purchaser under due diligence, preparing the deed, obtaining a title report for the Property, the appraisal for the Property and all other closing costs associated with Settlement including all recording costs, except for grantors tax and transfer taxes, and its own attorneys fees. The Seller shall pay its own attorneys fees and costs. If Purchasers intended use changes the character or use of the Property to require the payment of rollback taxes, Purchaser shall be responsible for the payment of such taxes.

 

The Purchaser acknowledges the Sellers intention to donate the sum of $240,000.00 of the Purchase Price to the City of Hampton. The Seller acknowledges and agrees that the Seller has made its own independent investigation and has consulted with such attorneys, accountants and others to advise the Seller with respect to all tax considerations related to the transaction contemplated hereby. The Seller certifies that the Seller has not looked to or relied upon the Purchaser or any of its officials, agents or employees, with respect to any of such matters. The Purchaser, its agents, employees, officials and attorneys shall not be held responsible or liable in any manner whatsoever for any adverse tax consequences, including any claims, lawsuits, administrative proceedings, penalties, interest, criminal or civil charges, incurred or suffered by the Seller with respect to the sale of the Property and the Sellers contemplated donation of a portion of the Purchase Price.

 

8. CONVEYANCE/TITLE. The Seller agrees to convey the Property to the Purchaser at Settlement by a properly executed and delivered Special Warranty Deed, free of all mortgages, security interests, parties in possession, encumbrances, tenancies, and liens (for taxes or otherwise), but subject to all easements, restrictions, rights-of-way and encroachments of record, which do not render the title unmarketable. If the examination reveals a title defect of a character that can be remedied by legal action or otherwise within a reasonable period of time, the Seller, at the Sellers sole cost and expense, shall promptly take such action as is necessary to cure such defect. If the defect is not cured within forty-five (45) days after the Seller receives notice of defect, then either party may terminate this Agreement at the expiration of such forty-five (45) day period. Upon written notice of termination of this Agreement, said Agreement shall be terminated, the Earnest Money Deposit and the Additional Earnest Money Deposit shall be returned to the Purchaser within fourteen (14) business days and neither party shall have any further rights against or obligations or liability to the other hereunder. Purchaser shall report any objections to title and/or title defects to the Seller within forty-five (45) days from February 27, 2006.

 

The Seller shall supply, at Settlement, all affidavits and any other documents required by the Purchasers title insurance company for the issuance of policy of insurance, including, but not limited to, an affidavit in a form acceptable to the Purchaser, and signed by the Seller that no labor or materials have been furnished to the Property within the statutory period for the filing of mechanics or materialmens liens against the Property. If labor or materials have been furnished during the statutory period, the Seller shall deliver to the Purchaser, at Settlement, an affidavit signed by the Seller and the person(s) furnishing the labor or materials that the costs thereof have been paid.

9. ENVIRONMENTAL. The Seller makes no representations regarding any environmental issues. The property is sold in its present physical condition as is.

 

10. RISK OF LOSS. Risk of loss or damage to the Property by fire, wind, storm, or other casualty, or other cause shall remain upon the Seller until transfer of legal title at Settlement. In the event of substantial loss or damage to the Property before Settlement, the Purchaser shall have the option of either (i) terminating this Agreement, or (ii) affirming this Agreement, in which event the Seller shall assign to the Purchaser all of the Sellers rights under any policy or policies of insurance applicable to the Property.

 

11. LEGAL AND EQUITABLE ENFORCEMENT OF AGREEMENT.

 

a. In the event the consummation of the transactions contemplated herein fail to occur by reason of any default by the Seller, the Purchaser shall have the right (i) to receive return of its Earnest Money Deposit and its Additional Earnest Money Deposit, or (ii) to seek all remedies available by law or in equity.

 

b. In the event the consummation of the transactions contemplated herein fail to occur by reason of any default of the Purchaser, except as specified in Paragraphs 3 and 8, the Seller shall have the right (i) to seek all remedies available by law or in equity, or (ii) retain the Purchaser's Earnest Money Deposit and Additional Earnest Money Deposit as liquidated damages.

 

12. ENTIRE AGREEMENT/MODIFICATION/CITY COUNCIL APPROVAL. There have been no other oral promises, considerations, warranties or representations made between the Parties which are not set forth in this Agreement. There may be no modification of this Agreement, except in writing, executed by the authorized representatives of the Seller and the Purchaser. This Agreement is subject to the formal approval of the City Council by a duly adopted resolution authorizing the acquisition of the Property pursuant to the terms contained herein.

 

13. MISCELLANEOUS. The terms and provisions of this Agreement are binding upon and will inure to the benefit of the parties and their respective successors. To the extent any handwritten or typewritten terms herein conflict with, or are inconsistent with the printed terms hereof, the handwritten or typewritten terms shall control. Nothing contained in this Agreement shall be construed to confer upon any other party the rights of a third party beneficiary. The captions and headings of the sections contained herein are for the convenience of reference only and shall not be considered in any interpretation of the provisions of this Agreement. If any term, covenant, condition or provision of this Agreement, or the application to any person or circumstances shall, at any time or to any extent be held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall (except to the extent such result is clearly unreasonable) not be affected thereby, and under such circumstances each term, covenant, condition and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law, insofar as such enforcement is not clearly unreasonable. This Agreement does not and shall not be construed to create a partnership, joint venture, or any other relationship between the parties hereto except the relationship of seller and purchaser specifically established hereby. No official, representative or employee of the City of Hampton shall be personally liable to the Seller or any successor in interest in the event of any default or breach by the Purchaser for any amount which may become due to the Seller or successor or on any obligations under the terms of this Agreement.

 

14. GOVERNING LAW/VENUE. This Agreement shall be deemed to be a Virginia contract and shall be governed by the laws of the Commonwealth of Virginia, and the parties hereto designate the Circuit Court of the City of Hampton, or the United States District Court for the Eastern District of Virginia, Newport News Division, as the case may be, as the proper venue for all litigation of issues relating to this Agreement.

 

15. IRS REQUIREMENTS. In accordance with instructions by the Department of the Treasury, Internal Revenue Service, for Form 1099-S, the Seller is required by law to provide the City Attorney, 22 Lincoln Street, Hampton, Virginia 23669, with its correct taxpayer identification number. If the Seller does not provide the City Attorneys Office with the Sellers correct taxpayer identification number, the Seller may be subject to civil or criminal penalties imposed by law. The Seller will also provide the Purchaser with other documents necessary for the Purchaser to comply with State reporting requirements. The Seller shall provide the Purchaser with any documents that are necessary for the Purchaser in its tax filings relative to the Property.

 

Under the penalties of perjury, as the Seller, I/we certify that the number(s) shown on this Agreement is/are my/our correct taxpayer identification number(s).

 

16. BROKER. The Purchaser and the Seller each warrant and represent to the other that no brokers were used to consummate this Agreement. Each party further agrees that it shall indemnify and save the other harmless against such claim by any such person arising from each partys own activities in this regard.

 

17. SIGNATURE OF PARTIES. The following information must be provided on the signature lines below:

 

a. Where the Seller is an individual or individuals, each person shall sign and print his/her name and include his/her taxpayer identification number.

 

b. Where the Seller is a business, the authorized agent of the Seller shall sign and print his/her name, provide his/her title, the taxpayer identification number of the business and, where necessary, a resolution authorizing the sale of the property.

 

c. Where any person holds a Power of Attorney for a Seller, a copy of the Power of Attorney shall be attached and the person shall sign for the Seller as his/her Attorney-in-fact.

 

18. ANCILLARY DOCUMENTS. The Purchasers authorized representative is hereby authorized, on behalf of the Purchaser, to execute any and all other documents necessary or appropriate to effectuate the transactions contemplated by this Agreement.

 

19. NO WAIVER. The Sellers failure to insist upon strict compliance with any of the terms, covenants or conditions contained herein shall not be deemed a waiver of the terms, covenants or conditions nor shall any waiver or relinquishment of any right or power at any time by the Seller be deemed a waiver or relinquishment of the Sellers right or power at any other time.

 

20. ASSIGNMENT. This Agreement shall not be assignable by the Purchaser.

 

WITNESS the following signatures:

 

THE CITY OF HAMPTON MAGYAR CSALAD, L.L.C.

 

By:________________________________ By: ________________________________

City Manager/Authorized Designee John Chohany

Its ______________________________

 

Tax ID Number:______________________

 

Date: ____________________ Date: ____________________

 

Mailing Address:

102 Millstone Court

Yorktown, Virginia 23693

Approved as to form:

 

______________________________________

Deputy City Attorney