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Contingent Contract for Sale of Real EstateCONTINGENT CONTRACT FOR SALE OF REAL ESTATE This Contingent Contract for Sale of Real Estate ("Agreement") is made and entered into this "day of July, 2012, by the CITY OF SALINA, KANSAS, a Kansas municipal corporation ("Seller"), and WOHLGEMUTH & DANIEL INVESTMENTS, LLP, a Kansas limited liability partnership ("Buyer"). Recitals A. Seller owns the remaining portions of full tracts of real estate near the intersection of North Ohio Street and York Street, acquired by Seller for construction of the North Ohio overpass project, depicted on Exhibit A attached hereto (the "Real Estate"). B. Buyer owns and operates an existing facility on the tract adjoining the Real Estate, located at 1027 York Street (the "Adjacent Real Estate" and, together with the Real Estate, collectively referred to as the "Properties"). C. The Real Estate is currently classified as an 1-2 zoning district; the Adjacent Real Estate is classified as an 1-3 zoning district; and the Properties are also included within, and subject to the requirements of, the North Ohio Street Gateway Overlay District. D. Buyer wishes to expand its existing business from the Adjacent Real Estate to the Real Estate, and Seller's governing body has determined that the public interest is best served by negotiating a sale to Buyer in order to facilitate the expansion of an existing and adjoining business, so long as the development of the Real Estate enhances the North Ohio corridor in a manner consistent with the North Ohio Street Gateway Overlay District. E. Buyer wishes to purchase the Real Estate contingent upon, among other things, obtaining approval of a final development plan for a Planned Development District and a replat of the Properties, which will satisfy Buyer's proposed uses for the Real Estate and comply with applicable law. FOR AND IN CONSIDERATION of the mutual and reciprocal promises and agreements set forth herein, the parties agree as follows: 1. Description. Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the Real Estate as preliminarily depicted on Exhibit A attached hereto, with the exact legal description of the Real Estate to be transferred to be established by the final Replat described in Section 3.2 below; together with the appurtenances thereto belonging, upon the terms, and subject to the conditions, contingencies, and requirements'set forth in this Agreement. 1 2. Purchase Price. The purchase price for the Real Estate shall be an amount equal to the sum of Thirty Thousand and No/Hundredths Dollars ($30,000.00), and shall be paid by Buyer to Seller at Closing by cashier's check, certified check, or immediately available wire transferred funds to the account of the Escrow Agent. 3. Government Approvals Contingencies. 3.1. Development Plan for the PDD. This Agreement and the Buyer's obligations hereunder are contingent upon the prior approval, under applicable law, of a final development plan for a planned development district ("PDD") covering the Properties, and containing such conditions and restrictions that will satisfactorily provide for Buyer's proposed use of the Properties. 3.2. Replat of the Properties. This Agreement and the Buyer's obligations hereunder are further contingent upon Buyer obtaining final approval of a replat ("Replat") covering the Properties (which final approval, together with final approval of the development plan for the PDD, shall collectively be referred to as "the Approvals") in accordance with applicable law, which Replat shall (1) satisfactorily provide for Buyer's proposed uses of the Properties, and (2) delineate the location of storm water detention structures which mutually satisfy Buyer's proposed uses and the stormwater drainage requirements under the City of Salina's subdivision regulations relating to stormwater drainage on the Properties. In addition, the Replat shall provide for a public easement on the Real Estate in favor of Seller, with the location and legal description of such public easement to be determined and mutually agreed upon by the parties. The retained public easement shall he for ingress and egress rights to Seller, its servants, officers, employees and contractors for the purpose of maintaining the landscaping located in the area of the retained easement and the area of Seller's existing right of way between the Real Estate and Ohio Street, in perpetuity. 3.3. Seller's Disclaimer Regarding Approvals. Buyer acknowledges and agrees that Buyer's application for the Approvals will be submitted to and reviewed by Seller's staff, planning commission, and governing body, and Buyer understands that all applications for the Approvals are subject to review and approval in accordance with applicable law, including but not limited to City Code Sec. 36-1, et seq., and City Code Sec. 42-401, et seq. Buyer understands that Seller makes no warranties or representations regarding the Approvals, and in the event that all or any part of Buyer's application for the Approvals is not approved by Seller's staff, planning commission, or governing body in a manner satisfactory to Buyer, or if Buyer's application is withdrawn or disapproved for any reason, then Buyer shall release and hold Seller harmless for all claims, costs, expenses, or damages, including reasonable attorneys' fees, design professional fees and surveying costs actually incurred, related to Buyer's application or Seller's failure to approve the same as contemplated herein. 3.4. Buyers' Actions. In connection with obtaining the Approvals, the parties agree as follows: 01 3.4.1. Within ninety (90) days from the effective date of this Agreement, Buyer shall initiate all procedures and file all applications necessary to obtain the Approvals; and Buyer must thereafter pursue the Approvals diligently and in good faith throughout the Approval process, including but not limited to preparing and executing all necessary application forms and providing testimony at all hearings in support of the applications. 3.4.2. All costs and expenses in connection with or related to Buyer's application for the Approvals, including but not limited to filing fees, surveying fees, engineering fees, design professional fees and Buyer's attorneys' fees, shall be paid by Buyer. Seller shall not be required to expend any funds to obtain the Approvals for Buyer's proposed use of the Properties. 3.5. Buyer's Right to Terminate Agreement. In the event Buyer determines that, notwithstanding its diligent and good faith pursuit of the Approvals, the contingencies contained in this Section 3 cannot be satisfied, then Buyer shall have the right to terminate this Agreement by written notice to Seller. 3.6. Buyer's Right to Waive Contingencies. The contingencies set forth in Subsections 3.1 and 3.2 are specifically for the benefit of Buyer and Buyer in its sole discretion can waive either or both contingencies, at any time. If Buyer acknowledges the waiver of a contingency by written notice to Seller, Buyer shall no longer have a right to terminate this Agreement under this Section because of such contingency. 4. Closing Date, Delivery of Deed, and Possession. Time is expressly declared to be of the essence of this Agreement. The consummation of the transactions contemplated by this Agreement shall occur at a closing ("Closing") to be held at the offices of the Escrow Agent, or at such other place as the parties may mutually agree in writing, on or before the thirtieth (3011) day after the contingencies in Section 3 have been satisfied or released by Buyer ("Closing Date"). If Buyer shall fully comply with the provisions of this Agreement, then this Agreement shall become binding and the Escrow Agent shall at Closing deliver the warranty deed and title insurance policy to the Real Estate to Buyer. No title shall pass hereunder to Buyer, but shall remain in Seller until the foregoing conditions have been fully complied with. Seller agrees that Buyer shall have possession of the Real Estate immediately following the Closing. 5. Payment of Expenses. 5.1. Seller's Expenses. Seller shall pay the following items: '5.1.1_ Cost of preparation of contract, deed, and real estate'sales validation questionnaire; 5.1.2. One-half of title insurance premium for title insurance covering the Real Estate in the amount of $30,000.00; 5.1.3. One-half of escrow fee; and 5.1.4. Seller's attorney fees. 5.2. Buyer's Expenses. Buyer shall pay the following items: 5.2.1. One-half of title insurance premium for title insurance covering the Real Estate in the amount of $30,000.00; 5.2.2. All of title insurance premium for title insurance covering the Real Estate in excess of $30,000.00; 5.2.3. One-half of escrow fee; 5.2.4. Cost of recording the deed; 5.2.5. All costs associated with satisfying the conditions set forth in Section 3; and 5.2.6. Buyer's attorney fees. Aside from those costs for which Seller is expressly responsible for under this Section 5, Buyer shall be responsible for any and all expenses it incurs in relation to its purchase of the Real Estate and shall indemnify and hold Seller harmless from any claims for payment of expenses incurred by Buyer. If this Agreement is terminated for any reason, Buyer shall remain responsible for all such expenses incurred. 6. Escrow Agent. Mid -Kansas Title Company, Inc., Salina, Kansas, is hereby designated as the Escrow Agent of the parties and shall hold this Agreement, deed, title insurance policy, and all other papers of transfer pending the complete fulfillment of this Agreement. The Escrow Agent shall receive and disburse all payments to be paid hereunder. 7. Evidence of Title. Within 20 days after Buyer obtains final approval of the Replat described in Section 3.2 above, Seller shall provide Buyer with a commitment for title insurance covering the Real Estate in the amount of at least $30,000.00, showing marketable title in and to the Real Estate to be in Seller, free and clear of all liens and encumbrances, except easements and restrictions of record, if any, and subject to the standard exceptions noted in Schedule B of the title insurance policy. Buyer shall have a reasonable time, not to exceed 10 business days, after receipt of the commitment for title insurance, to examine the same and notify Seller of any written objections relative to the marketability of title in compliance with this Agreement. Seller shall then have a reasonable time to remove defects to which valid objections have been made. If Seller, acting in good faith and with diligence cannot furnish marketable title to the Real Estate, then this Agreement shall, at the option of Buyer, be null and void. If a dispute arises between the parties about marketability of the title, the Title Standards adopted from time to time by the Bar Association of the State of Kansas, and the Kansas Marketable Title Act, as amended, shall control. Following Closing, the title insurance policy shall be issued showing title to the Real Estate vested in Buyer. 8. Taxes. The Real Estate is currently exempt from real property taxes. The parties acknowledge that the Saline County Appraiser shall assess real estate taxes against the Real Estate for 2012, prorated effective upon the recording of the deed from Seller to Buyer. Buyer acknowledges its responsibility for payment of any real estate taxes assessed against the Real Estate for 2012 and thereafter. 9. Inspection of Real Estate. Buyer acknowledges that (a) the Real Estate has been inspected and Buyer agrees to accept the Real Estate in its present condition and fitness for contemplated use, subject to the conditions set forth in Section 3; and (b) Seller has made no warranties as to fitness or condition not set forth in this Agreement. 10. Assignment. In consideration of the circumstances unique to Seller's interests in facilitating Buyer's expansion of its existing business, Buyer shall not have the right to assign or transfer this Agreement, or any interest hereunder. 11. No Warranties by Seller as to Condition of Real Estate. Seller makes no warranties of any kind regarding the condition of the Real Estate, and Buyer is not asking for any such warranty from Seller. Buyer warrants, therefore, that it has inspected the Real Estate and agrees to accept it "as is" and waive any and all claims against Seller, whether currently known or unknown, resulting from any condition related the Real Estate. 12. Environmental Hazard. 12.1. Seller has provided Buyer with Phase I Environmental Site Assessment Reports ("Reports") concerning the Real Estate, which contain certain environmental information relating to the Real Estate resulting from a site visit during April 2003. Buyer acknowledges having received the Reports. Seller does not warrant the accuracy of any information contained in the Reports. 12.2. In consideration of the Purchase Price and Seller's delivery of the Reports referenced in the preceding paragraph, Buyer, and its successors and assigns, shall, effective on the Closing Date, release and forever discharge Seller, its successors and assigns, from any and all claims, by any and all persons, arising out of or in relation to any hazardous materials occurring on or under the Real Estate after the Closing Date. Seller shall release and forever discharge Buyer, its successors and assigns, from any and all claims arising out of or in relation to any hazardous materials occurring on or under the Real Estate before or on the Closing Date. The term "hazardous materials" shall include, but not be limited to: 12.1.1. Any substance not naturally occurring on the Real Estate at the existing concentration of such substance on the Real Estate; 12.1.2. Any substance that may cause or contribute to an adverse effect on human health or welfare or on the environment; or 12.1.3. "Hazardous substance," "pollutant," or any other similar term now or hereinafter defined in, or regulated by, any federal, state, or local law or regulation. 5 13. Waiver. The failure of Seller to insist upon prompt performance of any condition or other provisions of this Agreement shall not constitute a waiver of the right of Seller to insist upon prompt and punctual performance at any other time hereunder. 14. No Commission. The parties hereby stipulate that they have not consulted with any real estate broker or salesman with respect to this sale, and no commissions arising from this sale are due and owing. 15. Authority and Consent to Transaction. The parties represent and warrant to each other that: 15.1. The execution and delivery of this Agreement have been duly and validly authorized by the governing bodies of each party; 15.2. The persons signing this Agreement on behalf of each party represent and warrant that they have the power and authority to enter into this Agreement in the names, titles, and capacities herein stated; 15.3. The Agreement constitutes the legal, valid, and binding agreement of each party to the other; and 15.4. The Agreement is enforceable in accordance with its terms, subject to the possibility that enforceability may be limited by bankruptcy, insolvency, and other similar laws now or hereafter in effect relating to creditors' rights, and principles of equity. 16. Real Estate Reporting Person. The parties agree that the Escrow Agent is the real estate reporting person as that term is defined under Internal Revenue Code Section 6045(e). Seller agrees to provide Escrow Agent with a written statement, certified under penalties of perjury, setting forth Seller's correct name, address, and taxpayer identification number. The parties further agree that Escrow Agent shall be required to file the informational return required by Internal Revenue Code Section 6045. 17. No Oral Agreements. This Agreement constitutes the entire agreement between the parties and there are no representations, warranties, conditions, or agreements other than those expressly set forth herein. No other agreement, statement, promise, warranty, or representation made by any party to this agreement that is not in writing and signed by all parties to this Agreement shall be binding. 18. Representation of Parties. Seller is represented herein by Greg A. Bengtson, of the law firm of Clark, Mize & Linville, Chartered, Salina, Kansas. Buyer is advised that it has the right to such independent legal counsel of its own choosing to represent it herein and to advise it with respect to this matter. By its signature on this document, Buyer acknowledges that it has either consulted separate counsel of its own choosing or has elected to proceed without separate counsel. 19. Survival of Covenants. Any agreement, promise, or covenant which by its terms is intended to extend beyond the closing of this Agreement shall endure beyond the closing in accordance with its terms. 20. Extent of Agreement. This Agreement shall be binding upon the successors of the respective parties hereto. {Signature Page Follows} 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by its duly authorized officers on the day and year fust above written. CITY OF SALINA, KANSAS m ATTEST: orb SFur (e.,l � Voce. Mcg{or By Liz c 5-W,dk I�icKs,CrrL, � rjC%bjCler>! Wohlgemuth & Daniel Investments, LLP By: i2L, J'l [Name] 44n-eJ [Title] EXHIBIT A DEPICTION OF REAL ESTATE (as described by the term "Surplus Land" below") RECEIPT BY ESCROW AGENT The undersigned hereby acknowledges receipt of the executed original of this Agreement, and agrees to act as Escrow Agent and Real Estate Reporting Person as defined under Internal Revenue Code Section 6045(e). Seller shall execute and deliver a general warranty deed conveying fee simple title upon execution of this Agreement to the Escrow Agent. Said deed shall be delivered to Buyer by the Escrow Agent upon the closing of this Agreement, pursuant to its terms. This receipt is executed this day of 2012. MID -KANSAS TITLE COMPANY, INC. By: Sandra Schmidt, President