Exhibit 10.13
AGREEMENT FOR THE PURCHASE AND
SALE OF COMMERCIAL REAL ESTATE
THIS AGREEMENT FOR THE PURCHASE AND SALE OF COMMERCIAL REAL ESTATE
("Agreement") is entered into as of June 10, 1998 ("Effective Date") between
Xxxxxx Xxxxxx, Ltd., a Colorado limited partnership ("Seller") and Xxx Xxxxxxx
("Purchaser"), upon the basis of the following facts:
RECITALS
--------
Seller is developer of the commercial retail shopping center commonly known
as the "The Crossing at Xxxxxx Park Center", located in Colorado Springs, El
Paso County, Colorado, and legally described on Exhibit A attached hereto and
incorporated herein by reference. A portion of the Center has been subdivided
into five lots ("Phase I"). Purchaser desires to purchase from Seller an
unplatted portion of the Center. Attached hereto as Exhibit B is a Concept Plan
showing the approximate configuration and location of the Property (as
hereinafter defined). Purchaser proposes to use the Property (as hereinafter
defined) for a Country Kitchen restaurant ("Purchasers Intended Use"); and
intends to develop the Property substantially as shown on the Concept Plan.
Subject to the terms of this Agreement, Seller has agreed to sell the
Property (as hereinafter described), To Purchaser.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which the parties hereby acknowledge, the parties hereby agree as follows:
SECTION 1. SALE OF PROPERTY. Subject to the terms and conditions provided
in this Agreement, Seller agrees to sell and Purchaser agrees to purchase all of
Sellers right, title and interest in and to the real property approximately as
depicted in Exhibit B and incorporated herein by reference (the "Property"). The
legal description of the Property shall be included in the Survey described in
Section 3.21c). Prior to Closing, the Property will be platted in accordance
with Section 10, and will be conveyed to Purchaser by platted legal description.
SECTION 2. PURCHASE PRICE. The purchase price to be paid by Purchaser to
Seller for the Property is $400,000.00 (the "Purchase Price"), adjusted as
provided in Section 3.2(c). The Purchase Price will be paid by Purchaser in the
following manner:
2.1 Xxxxxxx Money Deposit. Purchaser has deposited the sum of $5,000.00
with Lawyers Title Insurance Company, 000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 (the "Title Company") as xxxxxxx money and as a deposit
towards payment of the Purchase Price (together with any additions to such
deposit, herein the "Xxxxxxx Money Deposit"). On or before July 10, 1998,
Purchaser shall deposit an additional $5,000.00 as xxxxxxx money with the Title
Company. The Xxxxxxx Money Deposit shall be credited against the Purchase Price
at Closing (as defined below). The Xxxxxxx Money Deposit shall earn interest at
the highest available rate, and any interest accrual shall belong to the party
entitled to the Xxxxxxx Money Deposit in accordance with this Agreement.
2.2 Funds at Closing. At Closing, Purchaser shall pay to Seller the balance
of the Purchase Price, which balance shall be paid in immediately available good
funds.
SECTION 3. TITLE MATTERS.
3.1 Permitted Exceptions. Seller shall transfer and convey its right, title
and interest in the Property to Purchaser, subject only to such matters as
Purchaser may waive or consent to pursuant to Section 3.3, the Amended CC&R's
referred to in Section 11 hereinafter, and the matters shown on the Plat
referred to in Section 10.6 (the "Permitted Exceptions").
3.2 Title Documents. On or before July 10, 1998, Seller shall deliver to
Purchaser at Sellers expense the following title evidence covering the Property
(collectively, the "Title Documents"):
(a) Title Commitment. A title insurance commitment (the "Title
Commitment") issued by the Title Company showing the status of record title to
the Property, together with copies of all recorded documents referred to in the
Title Commitment. The Title Commitment must commit to insure title to the
Property in Purchaser in the full amount of the Purchase Price, subject only to
the Permitted Exceptions. The Title Commitment shall further commit to delete
the standard printed exceptions. Seller shall, at its expense and promptly after
Closing, cause the owners policy of title insurance to be issued to Purchaser
pursuant to the Title Commitment.
(b) Tax Certificate. A certificate of taxes due covering the Property
prepared by the Treasurer of El Paso County, Colorado.
(c) Survey. A land survey plat (as defined in Section 00-00-000,
Colorado Revised Statutes) of the Property, prepared by a licensed Colorado
surveyor, which shall comply with ALTA 1992 Standards for an Urban Class survey
(the "Survey"). The Survey shall contain a legal description of the Property and
shall show the bearing and distances of all boundary lines of the Property, all
improvements to the Property, all easements and other title matters encumbering
or appurtenant to the Property, the location of all dedicated public
rights-of-way adjacent to the Property, any encroachments onto or off of the
Property, the Federal flood zone designation and any other matters that would be
disclosed by an accurate survey of the Property, - including - t1he square
footage of the Property. The Survey shall also contain the certification of the
surveyor sufficient for deletion of the standard survey exception from the Title
Commitment, and shall be certified to Purchaser and Purchaser's lender. If the
square footage of the Property as determined by the Survey is different than
43,580 square feet, then the Purchase Price shall be increased or decreased at
the rate of $9.18 per square foot for every square foot by which the area of the
Property exceeds or is less than 43,580 square feet.
3.3 Defects of Title. Purchaser shall have the right to object to any
defect of title which appears in the Title Documents and which renders title to
the Property unmerchantable or which makes the Property unsuitable for
Purchaser's Intended Use (a "defect of title"). Any objection to a defect of
title must be in writing and must be received by Seller no later than the
expiration of the Inspection Period (as defined in Section 4.2). Purchasers
failure to provide Seller with written notice of an objection to any title
matter appearing in the Title Documents within the Inspection Period shall be
deemed to be a waiver by Purchaser of any objection it might otherwise have; and
all such title matters shall become additional "Permitted Exceptions."
Notwithstanding the foregoing, if a defect of title is not revealed in the Title
Documents and is discovered by Purchaser after the close of the Inspection
Period, Purchaser shall have until five (5) days after the date of its discovery
of the defect of title or the date of Closing, whichever is earlier, to provide
Seller with notice of its objection to the defect of title, provided, however,
that Purchaser shall be deemed to have approved and accepted any matters that
are shown on the Plat as described in Section 10.6. If Seller receives timely
written notice from Purchaser of a defect of title, Seller shall have the right,
in its sole discretion, to (a) correct or cure the defect of title, (b) obtain
title insurance over the defect of title through title policy endorsement or
otherwise, or (c) notify Purchaser that Seller does not intend to cure or insure
over the defect of title. If Seller is unable or unwilling to cure or insure
over a defect of title, Purchaser shall have the right to either (a) terminate
this Agreement and its obligations hereunder, or (b) waive its objection to the
defect of title. If Purchaser elects to terminate this Agreement, the Title
Company shall return the Xxxxxxx Money Deposit to Purchaser and neither party
shall have any further obligation hereunder. If Purchaser elects to waive its
objection to the defect of title, the title matter objected to shall thereafter
be considered a "Permitted Exception." A defect of title, regardless of its
disposition under this Section, shall not result in a reduction of the Purchase
Price.
2
SECTION 4. INSPECTION OF PROPERTY.
4.1 Inspection Items. Seller has, prior to the Effective Date, delivered to
Purchaser an environmental assessment, dated December 12, 1996, and prepared by
E-Quest Corporation (the "Environmental Audit"), together with copies of all
other studies or reports in Seller's possession with respect to soils,
engineering and environmental matters.
4.2 Inspection Period. Purchaser shall have from the Effective Date through
August 10, 1998 (the "Inspection Period"), in which to determine whether or not
the Property is suitable for Purchaser's Intended Use, which determination shall
be in Purchaser's sole discretion. At anytime during the Inspection Period,
Purchaser shall have the right to terminate this Agreement and all of its
obligations hereunder by providing written notice to Seller of its election to
terminate. Upon receipt of such a notice of termination by Seller, this
Agreement shall be automatically terminated without further action by either
party. Upon termination, the Title Company shall immediately return the Xxxxxxx
Money Deposit to Purchaser. In the event Purchaser completes its inspection
prior to August 10, 1998, and is satisfied with the results thereof, Purchaser
may so notify Seller, and upon receipt of such notice by Seller, the Purchaser's
right of termination set forth in this Section 4.2 shall end and be of no
further force or effect.
4.3 Access to Property. During the Inspection Period, Purchaser and its
agents arid representatives shall have access to the Property to conduct a
physical inspection and to conduct such testing, including core drilling and
soils reports, as Purchaser deems appropriate. Until the Closing. Purchaser
shall not materially alter the existing condition of the Property. Purchaser
hereby indemnifies and holds Seller harmless from any and all losses, costs or
expenses (including lien and personal injury claims, settlement and reasonable
attorneys' fees) which arise from such entry and work, and which may be asserted
against either Seller or the Property.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
5.1 Seller's Representations and Warranties. As of the Effective Date and
as of the date of Closing, Seller hereby represents and warrants to Purchaser
that:
(a) Seller is the owner and has full right, power and authority to
sell, convey and transfer the Property to Buyer as provided in this Agreement
and to carry out Seller's obligations under this Agreement. This Agreement and
all documents executed by Seller that are to be delivered prior to or at Closing
have been duly authorized and have been (or, when executed and delivered, will
be) duly executed and delivered by Seller and are (or, when executed and
delivered will be) legal, valid and binding obligations of Seller.
(b) The execution, delivery and performance of this Agreement, and the
consummation of the transaction contemplated hereby, will not result in any
breach of or constitute any default under or result in the imposition of any
lien or encumbrance against any part of the Property under any agreement or
other instrument to which Seller is a party or by which Seller or any part of
the Property might be bound.
(c) Seller is aware of the provisions of the Deficit Reduction Act of
1984, 26 U.S.C. Section 1445, et seq., and the Internal Revenue Service
regulations implementing said Act referring to the withholding tax on the
disposition of United States real property interests by foreign persons and
foreign corporations, and Seller is not a foreign person or corporation as
defined by said Act and regulations.
(d) In the event any claim is made by any party for the payment of
sums due for the furnishing of labor, materials, equipment or fuel to Seller or
to the Property at the request of Seller prior to Closing, or in the event any
lien is filed against the Property subsequent to Closing as a result of the
furnishing of such materials, labor, equipment or fuel at the request of Seller,
Seller shall immediately cause said lien to be released of record or otherwise
satisfy Buyer, to Buyer's reasonable satisfaction, that such lien will be
immediately released.
3
5.2 Purchaser's Representations and Warranties. As of the Effective Date
and as of the date of Closing, Purchaser hereby represents and warrants to
Seller that:
(a) Neither the entering into of this Agreement nor the consummation
or the transaction contemplated hereby will constitute a violation or breach by
Purchaser of any contract or other instrument to which Purchaser is a party, or
to which it is subject or by which any of its assets or properties may be
affected, or of any judgment, order, writ, injunction or decree issued against
or imposed upon it, or will result in a violation of any applicable law, order,
rule or regulation of any governmental authority affecting Purchaser.
(b) To the best of Purchaser's knowledge, there is no action, suit or
proceeding pending or threatened against Purchaser which would affect
Purchaser's ability to enter into or consummate this Agreement.
SECTION 6. CONDITION OF PROPERTY; DISCLAIMER OF WARRANTIES.
6.1 As Is. Except as specifically set forth in Sections 5,10, 11 and 16 of
this Agreement:
(a) Purchaser acknowledges and agrees Seller has not made, does not
make and specifically negates and disclaims any representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning or with respect to (i) the value, nature, quality
or condition of the Property, including, without limitation, the water, soil and
geology; (ii) the income to be derived from the Property; (iii) the suitability
of the Property for any and all activities and uses which Purchaser may conduct
thereon; or, (iv) the habitability, merchantability, marketability,
profitability or fitness for a particular purpose of the Property; and Seller
specifically disclaims any representations regarding compliance with any
environmental protection, pollution or land use laws, rules, regulations, orders
or requirements, including solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Property, of asbestos or any hazardous substance, as
defined by the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, and regulations promulgated thereunder.
(b) Purchaser further acknowledges and agrees that having been given
the opportunity to inspect the Property, Purchaser is relying solely on its own
investigation of the Property and not on any information provided or to be
provided by Seller or Broker other than information referred to in this
Agreement.
(c) Purchaser further acknowledges and agrees that any information
provided or to be provided by or on behalf of Seller with respect to the
Property was obtained from a variety of sources and that Seller has not made any
independent investigation or verification of such information and makes no
representations as to the accuracy or completeness of such information.
(d) Seller is not liable or bound in any manner by any oral or written
statements, representations or information pertaining to the Property, or the
operation thereof, furnished by any real estate broker, agent, employee, servant
or other person.
(e) Purchaser further acknowledges and agrees that to the maximum
extent permitted by law, the sale of the Property as provided for herein is made
on an "AS IS" condition and basis with all faults.
4
It is understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that all of the Property is sold by Seller and purchased
by Purchaser subject to the foregoing.
6.2 Radon. The Colorado Department of Health and the United States
Environmental Protection Agency ("EPA") have detected elevated levels of
naturally occurring radon in structures in the Colorado Springs area. EPA has
raised concerns with respect to adverse effects on human health of longterm
exposure to high levels of radon. Purchaser may conduct radon tests to determine
the possible presence of radon in the Property and may conduct such other
investigations and consult such experts as Purchaser deems appropriate to
evaluate radon mitigation measures that can be employed in the design and
construction of improvements on the Property. Purchaser shall rely solely upon
such investigations and consultations and acknowledges that Seller has made no
representation, express or implied, concerning the presence or absence of radon
in the Property, the suitability of the Property for development or the design
or construction techniques, if any, that can be employed to reduce any radon
levels in improvements built on the Property; and Purchaser, for itself and its
successors and assigns, releases Seller from any liability whatsoever with
respect to the foregoing matters.
SECTION 7. CONDITIONS PRECEDENT TO PURCHASE AND SALE.
7.1 Conditions Precedent to Purchaser's Obligations. The following matters
shall constitute absolute conditions precedent to Purchaser's obligations to
purchase the Property:
(a) Seller's representations and warranties set forth in Section 5. ".
of this Agreement shall be true and correct as of the closing date.
(b) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(c) The Plat referenced in Section 10.6 has been recorded.
(d) Seller has provided Purchaser with a copy of the Letter of Credit
referenced in Section 10.3.
(e) Purchaser shall have obtained, on or before August 10, 1998, each
of the following: (i) financing for the purchase of the Property, the completion
of on-site development work and the construction of the improvements on the
Property, in such amounts and on such terms as Purchaser deems reasonable; (ii)
a franchise for the operation of a Country Kitchen restaurant on such terms as
Purchaser deems reasonable, and approval by the franchisor of the Property as a
site for a Country Kitchen; and (iii) bids satisfactory to Purchaser for the
completion of Purchaser's on-site development work. In the event Purchaser has
not obtained any of the foregoing, Purchaser may, at its option, terminate this
Agreement and all of its obligations hereunder by written notice to Seller given
on or before August 10, 1998, and upon termination the Title Company shall
immediately return the Xxxxxxx Money Deposit to Purchaser. In the event
Purchaser fails to give notice to Seller of its election to terminate on or
before August 10, 1998, the conditions set forth in this Section 7.1(e) shall be
deemed satisfied and waived by Purchaser. If the foregoing conditions are
satisfied on or before August 10, 1998, or Purchaser elects to waive such
conditions, Purchaser may so notify Seller in writing.
Insofar as Purchaser has direction and control over any of the foregoing,
Purchaser shall act with due diligence in completing the conditions of this
Agreement. In the event that the conditions set forth above are not met or
satisfied on or before the date specified, or if no date is specified, on or
before Closing, through no fault of Purchaser, then Purchaser may either obtain
a refund of the Xxxxxxx Money Deposit, following which neither party shall
thereafter have any further liability to the other hereunder, or Purchaser may
waive in writing the nonfulfillment of any portion of these conditions and
purchase the Property pursuant to the terms and provisions hereof without any
reduction in the Purchase Price.
5
7.2 Condition Precedent to Seller's Obligation. The following matters shall
constitute absolute conditions precedent to Seller's obligations to sell the
Property:
(a) Purchaser's representations and warranties set forth in Section
5.2 of this Agreement shall be true and correct as of the closing date.
(b) Seller has determined that the Development Budget referenced in
Section 10.1 does not reflect a total cost that exceeds $600,000.00.
(c) The Seller has received all approvals contemplated by Section 10
of this Agreement.
(d) The Plat referenced in Section 10.6 has been recorded.
Insofar as Seller has direction and control over any of the foregoing,
Seller shall act with due diligence in completing the conditions of this
Agreement. In the event the conditions set forth above is not met or satisfied
on or before Closing, through no fault of Seller, then Seller may terminate this
Agreement by giving written notice of termination to Purchaser in which event
the Xxxxxxx Money Deposit shall be refunded to Purchaser following which
neither, party shall thereafter have, any further liability to the other
hereunder, or Seller may waive in writing the nonfulfillment of the condition
and sell the Property to the Purchaser pursuant to the terms and provisions
hereof.
SECT110N 8, CLOSING.
8.1 Closing Date. The closing of the purchase and sale of the Property (the
"Closing") shall occur ten (10)business days following notice to Purchaser from
Seller that the City has approved the Plat (the "City Approvals"), provided that
the Plat has been recorded by Closing. The Closing shall occur at the offices of
the Title Company. In the event Closing has not occurred on or before September
10, 1998, then either party may (provided it is not in default hereunder), by
written notice to the other, elect to terminate this Agreement. Upon receipt of
such notice of termination by the party to whom it is directed, this Agreement
shall terminate, and upon such termination the Title Company shall return the
Xxxxxxx Money Deposit to Purchaser.
8.2 Purchaser's Obligations at Closing. In addition to delivery of the
balance of the Purchase Price as described in Section 2.2., Purchaser shall
execute and deliver the following to Seller at Closing:
(a) Such affidavits, instruments or agreements that may be required by
the Title Company in its issuance of the policy of title insurance pursuant to
the Title Commitment.
(b) A statement which reflects the settlements and prorations provided
for in Section 9.
(c) Such other documents that may be necessary to carry out the
purposes of this Agreement.
8.3 Seller's Obligations at Closing. Seller shall execute and deliver the
following to Purchaser at Closing:
(a) A Special Warranty Deed conveying the Property to Purchaser,
subject only to the Permitted Exceptions.
(b) A FIRPTA Affidavit.
6
(c) Such affidavits, instruments or agreements that may be required by
the Title Company in its issuance of the policy of title insurance pursuant to
the Title Commitment.
(d) A statement which reflects the settlements and prorations provided
for in Section 9.
(e) Such other documents that may be necessary to carry out the
purposes of this Agreement.
SECTION 9. SETTLEMENT AND PRORATIONS. The following items shall be prorated
or settled between Purchaser and Seller at Closing:
9.1 Taxes and Assessments. Prior to Closing, Seller shall pay the amount of
any unpaid real and personal property taxes allocable to the Property for tax
years prior to the year of Closing and any special assessments for improvements
installed prior to Closing. If Seller fails to pay the entire amount of such
taxes and assessments by Closing, Seller shall be debited on its settlement
sheets with the unpaid amount of such taxes and assessments and any resulting
penalties. Real property taxes and assessments for the Property for the year of
Closing, payable in the following calendar year, shall be apportioned between
Seller and Purchaser as of the date of Closing. Such apportionment shall be
computed on the basis of the most recent assessed valuation and mill levy
information, and shall be final.
9.2 Miscellaneous Closing Costs. -Seller shall pay the costs associated
with providing Purchaser with the title insurance policy described in Section
3.2. A real estate recording and documentary fees payable in connection with the
purchase and sale of the Property shall be paid by Purchaser. Any fee for
closing services which is charged by the Title Company shall be shared equally
by Seller and Purchaser. Except as otherwise expressly provided in this
Agreement, Purchaser and Seller .shall pay their own fees and expenses incurred
in the preparation, execution and performance of their respective obligations
under this Agreement.
SECTION 10. APPROVALS, PLANNING, PLATTING AND DEVELOPMENT.
10.1 Seller's Development Obligations - Generally. The Seller shall be
responsible for subdividing and platting the Property and for the Off Site and
On Site Development Work (as hereinafter defined). Prior to the Effective Date,
Seller has furnished Purchaser with a development budget (the "Development
Budget") for all On and Off Site Development Work necessary or required in
connection with the subdivision and platting of the Property (including both
"hard" and "soft" costs). The Development Budget was prepared using the most
accurate information available to Seller at the time of its preparation. In the
event that unforeseen events occur (such as, for example, City imposed
development obligations not currently anticipated in Seller's current
Development Budget) prior to Closing that cause the total amount of the
Development Budget to increase above $600,000.00, Seller may, at its option, so
notify Purchaser, and may elect to by such notice to terminate this Agreement
and all of its obligations hereunder. Upon receipt of such a notice of
termination by Purchaser, this Agreement shall be automatically terminated
without further action by either party. Upon termination, the Title Company
shall immediately return the Xxxxxxx Money Deposit to Purchaser.
10.2 Timing of Seller's Obligations. On or before the earlier to occur of
(i) 30 days following the date on which Seller has received notice that
Purchaser has ended its inspection rights pursuant to Section 4.2 and has
satisfied or waived the conditions pursuant to Section 7.1(e), or (ii) August
10, 1998 (the "Plat Submittal Deadline"), Seller shall complete and submit to
the City for its approval the Plat (as hereinafter defined) of the Property.
Seller shall use its reasonable efforts to obtain the City's approval of the
Plat. It is anticipated that none of the Development Work will be completed by
Closing. Should Closing occur, Seller shall substantially complete all On-Site
7
Development Work and all Off-Site Development Work (with the exclusion of any
required improvements to the Sand Creek Drainage channel, which Seller shall
complete as promptly as reasonably possible) within ninety (90) days following
Closing, provided, however, that if completion of the Work is delayed as a
result of any cause or causes which Seller is, despite it best commercial
efforts, unable to prevent or overcome, including but not limited to acts of
God, strikes, walkouts or other labor disputes, shortages of labor or materials,
riots, civil strife, war, or acts of a public enemy ("Force Majeure"), such
period to be extended by any periods of delay caused by the Force Majeure events
(the "Completion Date"). In the event Seller has not completed the foregoing
Work on or before the Completion Date, Seller shall be subject to a delay
penalty of $750 per day for each day beyond the Completion Date that the Work is
not substantially complete, provided, however, that such delay penalties shall
not exceed $10,000. Any delay penalties shall be paid to Purchaser within 10
days following Purchaser's written demand for such payment.
10.3 Off Site Development Work. For purposes of this Agreement, "Off Site
Development Work" shall mean all of the off site development work required by
the City to be completed as a condition of the City's approval of the Concept
Plan and the Plat, which the parties anticipate shall include construction of
drainage improvements in Sand Creek. In accordance with the City's procedures,
the parties acknowledge that the City, as a condition of the approval of the
Concept Plan and the Plat, will require Seller agree to complete the Off Site
Development Work, and to post with the City a letter of credit ("Letter of
Credit") to assure the City of the completion of the Off Site Development Work.
10.4 On Site Development Work. For purposes of this Agreement, "On Site
Development Work"; shall mean all of the on site development work, required to
be completed by the City as a Condition of the City's approval of the Concept
Plan and the Plat, and the following:
(a) Rough grading of the Property in accordance with the City approved
grading plan (the "Grading Plan").
(b) Construction of private road access to Property as shown on the
Concept Plan.
(c) Stubbing all utilities to the Property pursuant to City Utility
Department specifications.
10.5 Purchaser's Development Plan. Purchaser acknowledges that the City
will require a development plan or development plans ("Purchasers Development
Plan") for the Property to be approved in accordance with applicable zoning laws
and City subdivision ordinances prior to the issuance of any building permit for
construction of improvements on the Property. It shall be Purchaser's sole
responsibility to complete and submit to the City for its approval, Purchaser's
Development Plan for the Property. Purchaser acknowledges that in accordance
with the provisions of the Amended CC&R's (as hereinafter defined), Seller will
have certain approval rights, including the right to approve development plans
prior to their submission to the City. Before submitting any Purchaser's
Development Plan for the Property to the City, Purchaser shall submit
Purchaser's Development Plan to Seller for approval in accordance with the
CC&R's. Purchaser shall not permit any development plan to become final and
binding on the Property or Seller until after Closing. Purchaser shall be solely
responsible for obtaining the City's approval of Purchasers Development Plan,
and Seller will cooperate with Purchaser's efforts to obtain the City's approval
of Purchaser's Development Plan.
10.6 Concept Plan and Platting. Purchaser has received a copy of the
Concept Plan approved by the City, and hereby acknowledges it has approved the
same. Purchaser acknowledges that the Property must be platted and that
governmental authorities will require a plat ("Plat") of the Property, to be
approved in accordance with applicable zoning laws and City subdivision
ordinances. The Plat must be approved by the City and recorded, prior to the
8
issuance of any building permit for construction of improvements on the
Property. Purchaser acknowledges that the Plat will have to provide for
landscaping, utility and drainage easements as required by the City. Seller
shall be responsible for obtaining the City's approval of the Plat.
10.7 Seller's Plat Responsibilities. Contingent upon Closing, Seller shall
be responsible for all improvements, fees and agreements with the City
concerning either installation of improvements or provisions for public
facilities that are required pursuant to approval and recording of the Plat
affecting the Property. Purchaser shall be responsible for all fees and charges
payable in connection with building permits or otherwise payable with respect to
the Property, except for the specific obligations of Seller identified in this
Agreement.
10.8 Utility Service. Seller shall be responsible for extending water,
natural gas, electric and sewer utility lines from their current locations to
the boundary of the Property, for repairing streets damaged by such extensions.
Purchaser shall be responsible for extending such utility services to the
improvements it constructs on the Property and for paying all tap, line
extension and other City imposed charges and fees in connection with the
extension of such utility services to the improvements. Purchaser acknowledges
that the City installs all electric lines and that Purchaser will be solely
responsible for making arrangements with the City's Department of Utilities to
extend electric lines and to provide electrical service to meet the particular
needs of the improvements to be constructed or. the Property. Purchaser will
also be responsible for obtaining telephone and cable television lines and
service for the Property. Purchaser acknowledges that the Plat will have to
provide for utility easements as required by the City.
10.9 Streets. Access to the Property will be provided via public and
private streets. Seller shall be responsible for providing access to the
Property from the private roads in Phase I of the Center (the "Street
Easement"), as shown on Concept Plan. Purchaser shall be solely responsible for
constructing all driveways within the boundaries of the Property and all curbs
and sidewalks on or adjacent to the Property required by governmental
authorities.
10.10 Drainage. Seller shall be responsible for installing, or causing to
be installed, all drainage outside of the Property that relate to development on
the Property. Purchaser facilities required by the City will be solely
responsible for providing all drainage facilities required within the boundaries
of the Property in accordance with the Purchaser's Development Plan, the Plat
and any applicable drainage plans approved by the City. Purchaser acknowledges
the Plat will have to provide for drainage easements as required by the City.
10.11 Park and Drainage Fees. Seller will hold Purchaser harmless from all
requirements and obligations to the City for any fees with respect to the
Property that are required to be paid in conjunction with the filing and
approval of the Plat under ordinances in effect at the time of this Agreement,
including without limitation park and drainage fees.
10.12 Purchaser's Approval Rights. Seller shall, on or before fifteen (15)
days prior to the Plat Submittal Deadline described in paragraph 10.2, at its
expense, prepare and deliver to Purchaser the following:
(a) The Grading Plan;
(b) The proposed Plat;
(c) The Amended CC&R's (as defined in Section 11. 1).
9
Purchaser shall have five (5) days after it receives any of the foregoing to
approve or disapprove the same by giving written notice to Seller, and if it
disapproves (a "Disapproval"), stating specifically the reasons therefor. In the
event Purchaser does not give such notice within the time period allowed, it
shall conclusively be deemed to have given its approval. If Seller receives
timely written notice from Purchaser of a Disapproval, Seller shall have the
right, in its sole discretion, to (a) correct or cure the Disapproval, or (b)
notify Purchaser that Seller does not intend to cure the Disapproval. If Seller
is unable or unwilling to cure the Disapproval, Purchaser shall have the right
to either (a) terminate this Agreement and its obligations hereunder, or (b)
waive its Disapproval. If Purchaser elects to terminate this Agreement, the
Title Company shall return the Xxxxxxx Money Deposit to Purchaser and neither
party shall have any further obligation hereunder. If Purchaser elects to waive
its Disapproval, the matter objected to shall thereafter be considered approved.
10.13 Cooperation. The Seller and Purchaser shall cooperate with one
another in a reasonable manner to the end that the Closing occurs as
contemplated by this Agreement. All approvals required to be obtained by either
party pursuant to this Agreement shall be sought in a reasonable manner and
acted upon diligently and expeditiously. Whenever the provisions of this
Agreement require one party to obtain the other party's approval, such approval
shall not be unreasonably withheld or delayed. Each party shall use its good
faith efforts to satisfy all the conditions to its performance of this
Agreement.
10.14 Center Signs. Seller will seek City approval for "the construction of
a sign (in addition to the sign to be located at the Southern end of the Center)
to be located at 'the northern end of the Center (the "Center Sign - North"),
which may identify the Center and provide for additiona1 signage for property
owners within the Center. In the event Seller is able to obtain the City's
approval, Seller shall erect the Center Sign-North, and Purchaser shall be
entitled, if Purchaser so elects, to 16.67% of the total signage available on
the Center Sign-North for identification of the business operated from the
Property. Purchaser shall make its election to participate in the Center Sign -
North, within ten (10) days following notice from Seller that the City has
approved such sign. If Purchaser elects to participate, Purchaser shall be
responsible for reimbursing Seller for its pro-rata portion of the cost of
purchasing and erecting the Center Sign-North, and for Purchaser's pro-rata
portion of the continuing costs of lighting, maintenance and repair. For
purposes of the preceding sentence, "pro-rata portion" means the square footage
of Purchaser's signage on the Center Sign-North compared to the square footage
of all signage available on said sign for owners or tenants of property within
the Center.
SECTION 11. THE COVENANTS FOR THE CENTER.
11.1 Covenants. There is recorded, at Reception No. 097066132 of the
records of El Paso County, Colorado, a Declaration of Covenants, Conditions and
Restrictions for The Crossing at Xxxxxx Park Center ("the CC&R's"). On or before
the date set forth in Section 10.12, Seller shall deliver to Purchaser at
Seller's expense, an amendment (the "CC&R Amendment") to the CC&R's which Seller
intends to place on the Property. Purchaser acknowledges that the Property will
be conveyed subject to the CC&R's, as amended by the CC&R Amendment (the
"Amended CC&R's"). In addition to other matters, the Amended CC&R's shall:
(a) Incorporate, as part of the property covered thereunder, the
Property.
(b) Contain a prohibition that, for so long as the Property is
utilized primarily for a full service, family-style, sit-down, breakfast
restaurant, no other portion of the Center shall be used primarily for a
full-service, family-style, sit-down, breakfast restaurant, provided, however,
that such restriction shall not prevent other property in the Center from being
used primarily for the conduct of restaurant operations that are different than
those described above such as, by way of example and not limitation, restaurants
that offer liquor services, emphasize other than breakfast menus, or are open
10
primarily for dinner or evening meals. Examples of restaurant operations that
would be prohibited by the foregoing restriction are Dennys, Village Inn, IHOP,
COCO's, Xxxxxxx and Xxxxxxx Toody's. Examples of the types of restaurant not
falling within the above restriction are Texas Steakhouse, TGI Friday's,
Chicago's, Applebee's, Outback, Macaroni Grill and any "fast food" establishment
such as McDonald's , Wendy's, Burger King, and Taco Xxxx.
(c) Provide that any private roadways shall be governed by the CC&R's
and each property owner within the Center shall pay its proportionate share of
expenses (as set forth in the CC&R's) which shall be allocated among those
property owners owning platted lots within any phase of the development that has
been incorporated in the CC&R's currently being served by the roads and
services.
(d) Contain provisions allowing the Seller to "phase" the development
of the property within the Center.
(e) Contain provisions allowing the Seller to approve all plans and
specifications for any improvements to be constructed on any property within the
Center, and development plan for or plat of any property within the Center.
(f) Amend the provisions dealing with signage for the Center signs.
Purchaser shall have the right 'to approve the Amended CC&R's in accordance with
the procedures set forth in section 10.12.
11.2 Other Development. Purchaser acknowledges that Seller has made no
representations or warranties to Purchaser concerning the development of any
other property adjacent to or in the vicinity of the Property on which Purchaser
has relied.
SECTION 12. Reserved.
SECTION 13. NAME AND LOGO. Except for directional and location
identification purposes, neither the name "The Crossing at Xxxxxx Park Center,"
any derivatives thereof, nor the logos associated with such name may be used in
any way in connection with the Property or any promotion of it, unless Seller
has given its prior written approval to such use.
SECTION 14. CONDEMNATION. If, between the Effective Date and Closing, any
portion of the Property is taken in condemnation, Purchaser shall have the
option to terminate this Agreement and its obligations hereunder. The option to
terminate contained in this Section must be exercised by written notice to
Seller no later than ten (10) business days after Purchaser is notified by
Seller or others of the condemnation. If Purchaser exercises its option to
terminate in accordance with this Section, the Title Company shall return the
Xxxxxxx Money Deposit to Purchaser and neither party shall have any further
obligation hereunder. If Purchaser does not exercise its option to terminate as
provided in this Section, the Agreement shall continue in full force and effect.
In such event, the Purchase Price shall be paid by Purchaser at Closing without
reduction, but Seller shall remit to Purchaser all awards received by Seller as
a result of the condemnation.
SECTION 15. DEFAULT AND REMEDIES. In the event of default by either party
under this Agreement, Purchaser and Seller agree as follows:
15.1 Default by Purchaser. If Purchaser shall default in the performance of
its obligations hereunder, Seller shall have the right to either (a) terminate
this Agreement and retain the Xxxxxxx Money Deposit, or (b) enforce this
Agreement through an action for specific performance and damages.
11
Purchaser and Seller hereby agree that if Seller elects to recover damages from
Purchaser, Seller's damages shall not exceed $50,000, and Seller hereby waives
its right to recover damages from Purchaser in excess of such amount, including
without limitation any loss of profits, consequential damages, punitive damages
or any other damages or losses suffered by Seller in connection with this
Agreement.
15.2 Default by Seller. If Seller shall default in the performance of its
obligations hereunder, Purchaser shall have the right to either (a) terminate
this Agreement and to obtain the return of the Xxxxxxx Money Deposit, or (b)
enforce this Agreement through an action for specific performance and damages.
Purchaser and Seller hereby agree that if Purchaser elects to recover damages
from Seller, Purchaser's damages shall not exceed $50,000, and Purchaser hereby
waives its right to recover damages from Seller in excess of such amount,
including without limitation any loss of profits, consequential damages,
punitive damages or any other damages or losses suffered by Purchaser in
connection with this Agreement.
SECTION 16. BROKERS. Seller represents and warrants to Purchaser that,
other than Highland Commercial Group, LLC, and Coldwell Banker Commercial/Xxxxxx
& Co. (together, "Broker"), no broker or finder has been engaged by Seller in
connection with any of the transactions contemplated by this Agreement. Seller
further represents and warrants that no person or entity, other than Broker, now
claims or will claim any commission, finders fee or other amounts by, through,
under or as a result of any,relationship with Seller because of such
transactions. Seller agrees to pay Broker a commission equal to ten percent
(10%) of the Purchase Price, which commission shall not be earned or payable
until the current Of the Closing and Seller's receipt of the Purchase Price. In
the event of a termination of 'this Agreement, Broker. shall have no right to
share in the Xxxxxxx Money Deposit if retained by Seller. Purchaser represents
and warrants to Seller that no broker or finder has been engaged by Purchaser in
connection with any of the transactions contemplated by this Agreement.
Purchaser further represents that no person or entity, other than Broker, claims
or will claim any commission, finder's fee or other amounts by, through, under
or as a result of any relationship with Purchaser because of such transactions.
Each party agrees to hold the other party harmless from and against any and all
costs, expenses, claims, losses or damages, including reasonable attorneys'
fees, resulting from any breach of the representations and warranties contained
in this Section.
SECTION 17. ASSIGNMENT. Purchaser shall not have the right to assign all or
any part of its interest or rights under this Agreement without the prior
written consent of Seller, except for an assignment to an affiliate. For
purposes hereof, "affiliate" means any person or entity which controls, is
controlled by, or is under common control with, the Purchaser. A person or
entity shall be deemed to have control of another person or entity if such
person or entity directly or indirectly or acting in concert with one or more
persons and/or entities, or through one or more subsidiaries, owns, controls or
holds with power to vote more than 50 percent of the voting shares or rights of
such other entity, or controls in any manner the election or appointment of a
majority of the directors, trustees or managers of another entity, or is the
general partner in or has contributed more than 25 percent of the capital of
such other entity.
SECTION 18. MISCELLANEOUS.
18.1 Notices. All notices required or permitted under this Agreement shall
be given by nationally recognized overnight courier, for "next day" delivery,
with all delivery costs paid, or by hand delivery, directed as follows:
If intended for Seller, to:
12
Xxxxxx Powers, Ltd
c/x Xxxxxx Capital Corporation
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Phone: (000) 000-0000
If intended for Purchaser, to:
Xxx Xxxxxxx
0000 Xxx 00
Xxxxxxxx Xxxxxxx, XX 00000
with a copy in each case to:
Xxxxx XxXxxxx Xxxxxx & Xxxxx, 00x
Plaza of the Rockies, Suite 202
111 South Tejon
Xxxxxxxx Xxxxxxx, Xx 00000
Attn: R. Xxx XxXxxxx
and to:
Law, Offices of Xxxx X. Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Any notice delivered by overnight carrier in accordance with this paragraph
shall be deemed to have been duly given when delivered. Any notice which is hand
delivered shall be effective upon receipt by the party to whom it is addressed.
Either party, by notice given as above, may change the address to which future
notices should be sent.
18.2 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, personal representatives, successors and permitted assigns.
18.3 Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement between Seller and Purchaser, and may
not be modified in any manner except by an instrument in writing signed by both
parties.
18.4 Headings. The section and subsection headings contained in this
Agreement are inserted only for convenient reference and do not define, limit or
proscribe the scope of this Agreement or any exhibit attached hereto.
18.5 Counterparts, This Agreement, may be executed in any number of
counterparts together shall constitute one and the same instrument.
18.6 Unenforceable Provisions. If any provision of this Agreement, or the
application thereof to any person or situation shall be held invalid or
13
unenforceable, the remainder of this Agreement, and the application of such
provision to persons or situations other than those to which it shall have been
held invalid or unenforceable, shall continue to be valid and enforceable to the
fullest extent permitted by law.
18.7 Time of the Essence. Time is strictly of the essence with respect to
each and every term, condition, obligation and provision of this Agreement, and
the failure to timely perform any of the terms, conditions, obligations or
provisions hereunder by either party shall constitute a breach of and a default
under this Agreement by the party so failing to perform. In calculating any
period of time provided for in this Agreement, the number of days allowed shall
refer to calendar and not business days. If any day scheduled for performance of
any obligation hereunder shall occur on a weekend or holiday, the time period
allowed and day for performance shall be continued to the next business day.
18.8 Waivers. No waiver by either party of any provision hereof shall be
effective unless in writing or shall be deemed to be a waiver of any other
provision hereof or of any subsequent breach by either party of the same or any
other provision.
18.9 Attorneys' Fees and Costs. In the event of litigation between Seller
and Purchaser arising out of the enforcement of or a default under this
Agreement, the prevailing party shall be entitled to judgment for court costs
and reasonable attorneys' fees in an amount to be determined by the court.
18.10 Governing Law; Construction of Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado.
Seller and Purchaser and their respective counsel have reviewed,. revised and
approved this Agreement. Accordingly, the normal rule of construction that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or exhibits hereto.
18.11 Survival of Representations and Warranties. All covenants,
agreements, representations and warranties made hereunder or pursuant hereto or
in consideration of the transactions contemplated hereby shall survive Closing.
18.12 Duration of Offer. Purchaser has executed and submitted this
Agreement to Seller as an offer for acceptance by Seller to be evidenced by
Seller's execution of this Agreement. Purchaser's offer as represented by this
Agreement shall continue in effect only until June 15, 1998. If Purchaser has
not received a copy of this Agreement executed by Seller on or before that date,
Purchaser's offer and this Agreement shall immediately terminate and shall no
longer be of any force or effect.
This Agreement for the Purchase and Sale of Commercial Real Estate has been
executed as of the date first written above.
SELLER:
Xxxxxx Xxxxxx, Ltd.
By: Xxxxxx Capital Corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Its: President
----------------------------------------------
PURCHASER:
/s/ Xxx Xxxxxxx
---------------------------------------------------
Xxx Xxxxxxx
14
AGREEMENT OF BROKER
The undersigned, as Broker hereunder, acknowledges and agrees that Section 16
of the foregoing Agreement correctly sets forth the understanding and agreement
between Broker, Seller and Purchaser relating to the payment of a commission
resulting from the sale of the Property.
BROKER:
Highland Commercial Group, LLC
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Its:
----------------------------
Coldwell Banker Commercial/Xxxxxx & Co.
By: /s/ Xxxx Xxxxxx
-----------------------------
Its: Agent
-----------------------------
15
EXHIBITS
to
Agreement for the Purchase and
Sale of Commercial Real Estate
Exhibit A Legal Description of Center
Exhibit B Concept Plan
16
EXHIBIT A
to
Agreement for the Purchase and
Sale of commercial Real Estate
(Legal Description of Center Omitted)
17
EXHIBIT B
to
Agreement for the Purchase and
Sale of commercial Real Estate
(Concept Plan Omitted)
18
