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HomeMy WebLinkAbout2005-9-7019R ORDINANCE NO. 2005-9-7019 AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY, APPROVING THE SALE OF MUNICIPALLY OWNED REAL PROPERTY HELD FOR THE USE AND BENEFIT OF THE PADUCAH GOLF COMMISSION WHEREAS, the City of Paducah ("City") owns certain real property which comprises approximately 0.733 acres which is located off of U.S. Highway 62- U.S. Highway 45 and Jackson Street, Paducah, McCracken County, Kentucky, as shown on the Waiver of Subdivision for the City of Paducah, of record in Plat Section "L," page 836, in the McCracken County Court Clerk's Office, which property is owned by the City for the use and benefit of Paducah Golf Commission and is part of the same real property conveyed to the City by deed dated June 30, 1939, of record in Deed Book 201, page 561, in the aforesaid clerk's office (the "Property"); and WHEREAS, the Paducah Golf Commission has determined that the Property is no longer necessary, appropriate, or in the best interests of the operations of the Paducah Golf Commission and that the Property should be sold as surplus real estate, all as reflected in the minutes of the regularly scheduled meeting of the Paducah Golf Commission; and WHEREAS, Danesh, Inc., a Kentucky corporation, desires to purchase the Property and Danesh, Inc., and the Paducah Golf Commission have entered into a Real Estate Purchase Agreement dated August 24, 2005, attached hereto as Exhibit A, whereby Danesh, Inc., has agreed to purchase the Property for the price of One Hundred Ten Thousand Dollars ($110,000.00) (the "Agreement"); and WHEREAS, the Board of Commissioners of the City of Paducah concurs with the Paducah Golf Commissioners and finds that the sale of the Property for the price of One Hundred Ten Thousand Dollars ($110,000.00) is in the best interest of the City and the Paducah Golf Commission. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH, KENTUCKY: Section 1. Recitals and Authorization. The Board of Commissioners hereby declares the Property to be surplus property. That the sale of the Property to Danesh, Inc. pursuant to the terms and conditions contained in the Agreement is hereby approved, authorized and affirmed. That Corporate Counsel is hereby authorized to prepare a deed of conveyance for the Property to Danesh, Inc., and that the Mayor of the City is hereby authorized to enter into and execute said deed of conveyance and any and all other documentation necessary to effectuate the sale of the Property. Section 2. Distribution of Proceeds. All monies realized from the sale of the Property, including without limitation, the purchase price paid under the Agreement, shall be received by the City for the benefit of the Paducah Golf Commission and shall be remitted to the Paducah Golf Commission following receipt of same. 490 Section 3. Severability. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. Section 4. Compliance With Open Meetings Laws. The City Commission hereby finds and determines that all formal actions relative to the adoption of this Ordinance were taken in an open meeting of this City Commission, and that all deliberations of this City Commission and of its committees, if any, which resulted in formal action, were in meetings open to the public, in full compliance with applicable legal requirements. Section 5. Conflicts. All ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed and the provisions of this Ordinance shall prevail and be given effect. Section 6. Effective Date. This Ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. ATTEST: J&7YVM4AZ- BAJ64 Tammara S. Brock, City Clerk Introduced by the Board of Commissioners, September 13, 2005 Adopted by the Board of Commissioners, September 27, 2005 Recorded by City Clerk, September 27, 2005 Published by The Paducah Sun, October 4, 2005 \ord\property-Golf Commission J 491 69633/verl REAL ESTATE PURCHASE AGREEMENT THIS REAL ESTATE PURCHASE AGREEMENT (this "Agreement") is entered into on the day of , 2005, by and among CITY OF PADUCAH, KENTUCKY, ACTING BY AND THROUGH THE PADUCAH GOLF COMMISSION, a body politic and corporate duly organized under the laws of Kentucky as a second class municipal corporation, hereinafter referred to as the "Seller", and DANESH, INC., a Kentucky corporation, hereinafter referred to as the "Purchaser". WITNESETH WHEREASSeller is the owner of certain tracts of commercial real estate located in Paducah, , McCracken County, Kentucky, which are more particularly described in Exhibit A attached hereto, together with all of Seller's right, title and interest in all other property rights and interests connected with or ancillary to the real property, including but not limited to any interest in streets, alleys, easements, development rights, improvements, fixtures, and appurtenances thereto, and any strips or gores (collectively the "Property"); and WHEREAS, subject to the terms and conditions hereof, Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser, the Property; and NOW, THEREFORE, in order to consummate said purchase and sale and in consideration of the mutual agreements set forth herein, and for other valuable consideration, the legal adequacy and sufficiency of which is hereby acknowledged by the parties hereto, the parties do hereby covenant and agree as follows: SECTION 1. PURCHASE AND SALE OF THE PROPERTY 1.1 Sale of the Property. Subject to the provisions of this Agreement, Purchaser agrees to purchase from Seller and Seller agrees to grant, bargain, sell and convey to Purchaser, at the Closing (hereinafter defined in Section 7.1) the Property. SECTION 2 PURCHASE PRICE AND PAYMENT. 2.1 Purchase Price. The purchase price for the Property (the "Purchase Price") shall be ONE HUNDRED TEN THOUSAND AND 00/100 DOLLARS ($110,000.00). 2.2 Earnest Money. Within five (5) days of the execution of this Agreement by both parties, Purchaser shall deliver to Denton & Keuler a check in the amount of ONE THOUSAND AND 00/100 DOLLARS ($1,000.00) (the "Earnest Money"), as a deposit to bind this sale. Said amount shall be deposited by Denton & Keuler in a non-interest bearing account until the date of Closing. Subject to the prior satisfaction or waiver in writing of all conditions precedent to Closing, the Earnest Money shall be delivered to Seller at Closing to be applied against the Purchase Price. In the event of Purchaser's or Seller's default, or in the event the conditions precedent are not satisfied fully, the Earnest Money shall be disposed of as set forth in this Agreement. 2.3 Payment of Purchase Price. The Purchase Price, less credit for such credits, prorations and adjustments as are provided herein, shall be paid at Closing by wire transfer of immediately available funds to an account designated in writing by Seller. SECTION 3. TITLE AND SURVEY. 3.1 Title Commitment/Survey. Within twenty (20) days after the Effective Date of this Agreement, Purchaser, at Purchaser's expense, may obtain (i) a title commitment or a title examination and certification (the "Commitment"), with respect to the Property showing Seller as the record title owners of the Property in the amount of the Purchase Price insuring Purchaser's fee simple title to the ',. Property subject to the Permitted Exceptions as herein described; and (ii) a survey of the Property certified to Purchaser and to the title company (the "Survey"). A copy of the most recent boundary survey of the Property in Seller's possession is attached hereto as Exhibit 3.2 Title Defects. In the event the Commitment or the Survey reflects any matter which shall materially affect Purchaser's fee simple estate or materially affect Purchaser's ability to use and occupy the Property for its intended purpose, Purchaser may object to said matter by delivering written notice to Seller on or before the expiration of the Inspection Period (hereinafter defined in Section 4.1). Seller shall have the right, for a period of sixty (60) days after the Inspection Period and receipt of Purchaser's written notice of objection to such matters (the "Cure Period"), to remove or cure such matters in a manner reasonably acceptable to Purchaser. In the event Seller is unable or unwilling to remove or cure 492 such matters during the Cure Period to Purchaser's satisfaction, then Purchaser may elect to (i) waive its objections and proceed to the Closing, or (ii) terminate this Agreement and thereafter neither party shall have any further liabilities or obligations to the other hereunder. As used in this Agreement, the term "Permitted Exceptions" shall mean all matters listed in the Commitment and shown by the Survey which Purchaser does not deliver an objection to on or before the expiration of the Inspection Period and any intervening liens and matters that are suffered or created after the date of the Commitment or Survey, but before the date of Closing that are approved by Purchaser. SECTION 4. PROPERTY INSPECTION. 4.1 Inspections. Purchaser shall have an inspection period which shall commence on the Effective Date and continue until thirty (30) days after the Effective Date (the "Inspection Period") to review the Survey, Commitment and the other materials; to complete a physical inspection of the Property, to conduct soil tests and engineering studies; to test for the presence of hazardous substances and wastes and investigate other environmental issues; to ascertain the availability and sufficiency of utilities to the Property; to study drainage; to review zoning; to determine whether there is or will be adequate access to the Property; to determine whether there is or will be adequate parking for the Property and its intended commercial use; to review deed restrictions and any other limitations or covenants, conditions and restrictions on land use; to examine the Property; to review and investigate taxes, assessments and any other matter affecting the Property; to exam and ascertain state and local building code compliance of the Property; to examine ADA compliance of the Property; and to obtain all internal approvals that Purchaser may require for it to acquire the Property in accordance with the terms set forth in this Agreement. Seller shall cooperate with Purchaser in the making of the foregoing investigations. If Purchaser determines, in its sole and absolute discretion, to proceed with the transaction set forth in this Agreement, Purchaser shall so notify Seller on or before the expiration of the Inspection Period. If Purchaser fails to deliver the above notice to Seller on or before the expiration of the Inspection Period, Purchaser shall be deemed to have notified Seller on the last day of the Inspection Period that Purchaser is consummating this Agreement. 4.2 Access to the Property. Seller hereby grants to Purchaser and Purchaser's agents and representatives the right to enter upon the Property at Purchaser's expense from the Effective Date until Closing or until the termination of this Agreement for the purpose of making inspections, measurements, surveys and conducting such tests and examinations as Purchaser deems necessary, including but not limited to engineering studies, core borings, drillings, environmental studies and hazardous waste studies. (, Purchaser shall indemnify and save Seller harmless against and from any and all liability, loss, cost damage and expense (including, without limitation, reasonable attorneys' fees, costs and disbursements incurred in enforcement of this indemnity) arising from Purchaser's or Purchaser's agents' or representatives' activities set forth in this Section. Seller acknowledges, and Purchaser agrees, that during the foregoing period, Seller will have complete control of the Property and Purchaser will have only the rights with respect thereto specifically set forth in this Agreement. SECTION 5. REPRESENTATIONS WARRANTIES AND COVENANTS OF THE SELLER. 5.1 Making of Representations Warranties and Covenants. As a material inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated hereby, the Seller hereby makes to Purchaser the representations, warranties and covenants contained in this Section: (a) The Seller has good, clear, marketable, valid and enforceable title in the Property, free and clear of all other prior or subordinate interests, including, without limitation, mortgages, deeds of trust, ground leases, leases, subleases, assessments, tenancies, claims, covenants, conditions or other encumbrances or other adverse matters affecting title, except for Permitted Exceptions as defined herein. There is no pending, nor to the best knowledge of Seller, any threatened condemnation or similar proceeding affecting the Property or any portion of the Property. (b) The Seller has not received a notice from any governmental authority of any violation of any law, ordinance, regulation, license, permit or authorization issued with respect to any of the Property that has not been corrected heretofore and, to the best knowledge of the Seller, no such violation now exists which could have an adverse effect on the operation of any of the Property. To the io, best knowledge of Seller, all improvements constituting a part of the Property are in compliance in all material respects with all applicable state laws, ordinances, regulations, licenses, permits and authorizations and there is at least the minimum access required by applicable subdivision or similar law to the Property. (c) Seller shall not enter into any contract of sale of the Property and no other party has been previously granted by Seller a right of first refusal or first option to purchase the Property to be transferred hereunder. 493 (d) There is no litigation or governmental or administrative proceeding or investigation pending or, to the knowledge of the Seller, threatened against the Seller which may have any adverse effect on the Seller's properties, assets, prospects, financial condition or business or which would prevent or prohibit the consummation of the transactions contemplated by this Agreement. (e) Seller represents that it has no knowledge of a violation of any Applicable Laws, including without limitation, CERCLA, RCRA, TSCA and all of the regulations promulgated thereunder to date, governing or creating liability for the existence or contamination in, on or under the Property of any Toxic Substance, or for the treatment, storage, disposal or release of Hazardous Materials or for the arranging for any such treatment, storage, disposal or release (collectively, the "Hazardous Materials Release(s)"). Seller has no knowledge of any disposal or release of Hazardous Materials on the Property during any its use or ownership of the Property. The term "Hazardous Materials" shall refer to (i) all materials and substances which are defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act, any so called "superfund" or "superlien" law, the Toxic Substance Control Act, or any federal, state or local statute, ordinance, code, rule, regulations, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereinafter in effect; (ii) asbestos; and (iii) any other hazardous, toxic or dangerous waste, substance or material. (f) To Seller's best knowledge, the Property is in full compliance with applicable building codes, environmental, zoning and land use laws, and other applicable local, state and federal laws and regulations. (g) At the time of the Closing, there will be no outstanding contracts executed by Seller for any improvements to the Property, and Seller shall cause to be discharged prior to the Closing all mechanics' or materialmen's liens arising from any labor or materials furnished to the Property or arising from contracts executed by Seller prior to the Closing (whether or not such contracts have been fully performed), and Seller shall terminate all such contracts at Closing at Seller's sole cost. (h) At the time of the Closing, there will be no indebtedness encumbering the Property. (i) Seller has received no notice that the Property violates any applicable law, regulation, ordinance, code, or insurance requirement. Seller shall continue to maintain and enforce its existing insurance with regard to the Property. All risk of loss of Property shall remain with Seller until Closing hereon. 5.2 Survival of Representations Warranties, and Covenants. In the event any of Seller's representations, warranties or covenants hereunder are determined to be false or misleading prior to Closing, Purchaser shall have the option of (i) waiving such failure and proceeding to the Closing subject thereto; or (ii) declaring this Agreement to be in default and exercising the remedies available to Purchaser under Section 9.2, including but not limited to the right to terminate this Agreement. SECTION 6. CONDITIONS PRECEDENT TO CLOSING. 6.1 Conditions to Closing. Seller and Purchaser acknowledge that the following conditions precedent to Closing must be satisfied or waived by Purchaser prior to Closing: (a) The representations and warranties of Seller shall be true and correct as of the date of Closing; (b) Purchaser, at the end of the Inspection Period shall have determined to proceed with the transaction set forth in this Agreement; and (c) The terms of this Agreement are approved by duly adopted ordinance of the Paducah City Commission. In the event any of the conditions precedent to Closing are not satisfied or waived by Purchaser, except condition (c) cannot be waived, prior to Closing, this Agreement shall terminate and thereafter neither party shall have any further liabilities or obligations to the other hereunder. SECTION 7. CLOSING ACTIVITIES. 7.1 Time and Place of Closing. Subject to the full performance or waiver of performance of all parties of their respective duties set forth in this Agreement and the satisfaction or waiver of all of the conditions to Closing set forth in this Agreement, the "Closing" of the sale contemplated hereby shall be 494 held via mail through the offices of Denton & Keuler within sixty (60) days of the Effective Date, provided Purchaser has not elected to terminate this Agreement in accordance with Section 4. 1, unless the parties agree in writing to extend the Closing to a date mutually agreeable to the parties. 7.2 Payment of the Purchase Price. At the Closing, Purchaser shall pay to Escrow Agent the Purchase Price, adjusted pursuant to this Agreement. Such payment shall be made by federal funds wire transfer to a commercial bank account designated by the Seller in funds able to be collected prior to the close of business on the date of Closing. 7.3 Documents to be Provided Prior to Closing. The documents to be signed at Closing will be prepared and provided to both parties before Closing. All documents executed and delivered at Closing shall be dated as of the date of Closing. Recordation of the conveyance documents shall occur on the date of Closing, or the day after Closing (to allow time for delivery of documents to the Office of the McCracken County Court Clerk). 7.4 Documents to be Delivered by Seller. At the Closing, Seller, at its expense, shall deliver to Purchaser: (i) a duly executed and acknowledged general warranty deed in proper statutory form conveying the Property, free and clear of all encumbrances except Permitted Exceptions and such intervening liens, if any, as Purchaser has approved in writing ("Deed"); (ii) evidence satisfactory to Purchaser that any encumbrances or liens theretofore affecting the Property have been paid and discharged of record; and (iii) vacant possession of the Property. 7.5 Closing Statement. Seller and Purchaser shall prepare a "Closing Statement" which reflects adjustments which will be made to the Purchase Price for transfer taxes; the balance of any mortgage or lien encumbering the Property; any title defect that can be cured by expending money; and any additional amounts owed by Purchaser or credits due to Purchaser. Purchaser and Seller shall execute the Closing Statement at Closing. 7.6 Transfer Taxes. Any and all deed transfer taxes shall be paid by Seller at Closing. Any and all deed recording fees shall be paid by the Purchaser at Closing. 7.7 Title and Survey Ex enses. The expense of examination of title and all title insurance premiums to issue the Commitment and Title Policy shall be paid by Purchaser. The cost of the Survey shall be paid by Purchaser. SECTION 8. BROKERS. 8.1 Real Estate Commission. Seller and Purchaser represent and warrant to each other that no real estate broker is entitled to any commission as listing agent, Purchaser's or Seller's agent or as the procuring cause of this transaction resulting from any actions or words by or on behalf of either party, and Purchaser and Seller agree to indemnify and hold each other harmless from any claim or demand made by any brokers. SECTION 9. DEFAULT AND REMEDIES. 9.1 Default by Purchaser; Remedies of Seller. If Purchaser defaults under this Agreement, and if Seller is not in default and all conditions precedent to Purchaser's obligations either have been satisfied or waived in writing by Purchaser, then Seller may terminate this Agreement and receive the Earnest Money as liquidated damages and not as a penalty, which sum shall be Seller's sole remedy in full satisfaction and settlement of all damages for Purchaser's default. 9.2 Default by Seller; Remedies of Purchaser. If Seller fails to comply with any or all of the obligations, covenants, representations, warranties or agreements to be performed, honored or observed by Seller under and pursuant to the terms and provisions of this Agreement, and such default is not cured within the Cure Period, then Purchaser may terminate this Agreement, and receive a refund of the Earnest Money as liquidated damages and not as a penalty, which sum shall be Purchaser's sole remedy in full satisfaction and settlement of all damages for Seller's default. SECTION 10. RISK OF LOSS. 10.1 Risk of Loss. Subject to the provisions hereof, Seller shall have all risk of loss to the Property by fire or other casualty until Closing and conveyance to Purchaser. Purchaser shall assume all risk of loss to the Property after the Closing. SECTION 11. MISCELLANEOUS. 11.1 Execution by Both Parties. This Agreement shall not become effective and binding until fully executed and delivered by Purchaser and Seller (the "Effective Date"). OWN 495 11.2 Captions. The captions employed in this Agreement are for convenience only and are not intended to in any way limit or amplify the terms and provisions of this Agreement. 11.3. Entire Agreement. This Agreement contains the complete agreement between the parties and cannot be varied or waived except by the written agreement of the parties. The parties agree that this Agreement constitutes the entire agreement between the parties and no other oral agreements, understandings, representations or warranties prior to or contemporaneous with this Agreement shall be effective, except as expressly set forth or incorporated herein. 11.4 Successors and Assigns. This Agreement shall apply to, inure to the benefit of and be binding upon and enforceable against the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives to the same extent as if specified at length throughout this Agreement. This Agreement may not be assigned by Purchaser, except with the written consent of Seller which shall not be unreasonably withheld. 11.5 Gender and Number. The plural shall include the singular and the singular, the plural, wherever the context so permits. The masculine shall include the feminine and the neuter; the feminine, the masculine and the neuter, and the neuter, the masculine and the feminine. 11.6 Attorneys' Fees and Other Costs. The parties to this Agreement shall bear their own attorneys' fees in relation to negotiating and drafting this Agreement. Should Purchaser or Seller engage in litigation to enforce their respective rights pursuant to this Agreement, the prevailing party shall have the right to indemnity by the non -prevailing party for an amount equal to the prevailing party's reasonable attorneys' fees, court costs and expenses arising therefrom. 11.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state in which the Property is located, without giving effect to any conflicts of laws. 11.8 Notice. All notices required, permitted, or given pursuant to the provisions of this Agreement shall be in writing, and either (i) hand delivered, (ii) delivered by certified mail, postage prepaid, return receipt requested, (iii) delivered by an overnight delivery service, or (iv) delivered by facsimile machine or email, followed within twenty-four (24) hours by delivery under options (i), (ii) or (iii) addressed as follows: If to Seller: - Paducah Golf Commission c/o Paxton Park Golf Course 841 Berger Road Paducah, Kentucky 42003 Attention: Danny Mullen With copies to: If to Purchaser: Denton & Keuler, LLP 555 Jefferson, Suite 301 Post Office Box 929 Paducah, Kentucky 42002-0929 Attention: Lisa H. Emmons, Esq. Danesh, Inc. 12252 Hwy. 41 N Evansville, IN 47725 Attention: Reza Danesh Notices shall be deemed delivered upon receipt. The addresses given above may be changed by any party by notice given in the manner provided herein. 11.9 Periods of Time. Whenever any determination is to be made or action is to be taken on a date specified in this Agreement, if such date shall fall on a Saturday, Sunday or legal holiday under the laws of the state in which the Property is located, then in such event said date shall be extended to the next day which is not a Saturday, Sunday or legal holiday. 11.10 Pr paration of Agreement. This Agreement shall not be construed more strongly against either party regardless of who is responsible for its preparation. 1 L I Lub>WYeIE �' —� :L^^ISEuWmma 11.11 Exhibits. All exhibits attached hereto are incorporated herein by reference and made a part hereof as if fully rewritten or reproduced herein. 11.12 Further Apreements. Seller and Purchaser agree to execute, acknowledge, and deliver, or cause to be delivered, any and all such conveyances, assignments, confirmations, satisfactions, releases, instruments of further assurance, approvals, consents and such other instruments and documents as may be reasonably necessary to carry out the intent and purpose of this Agreement and the transactions contemplated hereby. 11.13 No Personal Liability. Except as expressly provided in this Agreement, the shareholders, officers, directors, agents and employees of the parties shall not be personally or individually liable under this Agreement. 11.14 Agreement to Cooperate. Seller agrees prior to Closing to fully cooperate with Purchaser in the investigation and review of the Property. 11.15 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original. 11.16 Business Day. The term 'Business Day" shall mean every day other than Saturday, Sunday and legal holidays recognized by the Commonwealth of Kentucky upon which Hardin County government offices are closed. 11.17 Time of Essence. Time will be of the essence with respect to the performance of the terms and conditions of this Agreement. 11.18 Expiration Date. This offer expires on August 23, 2005, at 5:00 p.m. Central Time unless Purchaser accept the same by executing and delivering a counterpart to Seller. 11.21 Acceptance. Seller hereby accepts this offer to purchase and the terms and conditions of this Agreement on the date listed below Seller's signature. IN WITNESS WHEREOF, the parties have respectively caused this Agreement to be executed as of the respective dates shown below. [For signatures see next page.] SELLER: CITY OF PADUCAH, KENTUCKY, ACTING BY AND THROUGH THE PADUCAH GOLF COMMISSION. By: Its: Dated: PURCHASER: DANESH, INC., By: Reza Danesh, President Dated: 497 498 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Being a 0.733 acre tract of land located off of U.S. Highway 62- U.S. Highway 45 and Jackson Street, near 31St Street in Paducah, McCracken County, Kentucky, as shown on the Waiver of Subdivision for the City of Paducah, of record in Plat Section "L," page 836, in the McCracken County Court Clerk's office. Being part of the same real property conveyed to the City of Paducah, Kentucky, by deed dated June 30, 1939, of record in Deed Book 201, page 561, McCracken County Clerk's office. IN EXHIBIT B CURRENT SURVEY PLAT OF PROPERTY See Attachment 499