Agreement Between the City of Washington
& Moss Property Partners, LLC, for the
Purchase and Sale of Real Property
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
THIS REVISED AGREEMENT, made and entered into this 28th day of November, 2005, by and between the CITY OF WASHINGTON, a North Carolina Municipal Corporation, organized and existing under the provisions of Chapter 160A of the North Carolina General Statutes, hereinafter referred to as “SELLER”, and MOSS PROPERTY PARTNERS, L.L.C., of 6870 Clarks Neck Road, Washington, NC 27889, hereinafter referred to as “BUYER”;
W I T N E S S E T H
WHEREAS, SELLER and BUYER have entered into a contract dated the 28th day of May, 2003, providing for the purchase and sale of real property; and,
WHEREAS, SELLER has conveyed said real property to BUYER, and BUYER has issued its Note and Deed of Trust, for said transaction; and,
WHEREAS, said contract dated May 28, 2003 contained agreements, rights and obligations which survive the closing; and
WHEREAS, the parties desire to modify the terms of said contract.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and the payment of the sum of Ten Dollars ($10.00) and other valuable considerations, paid by BUYER to SELLER, the receipt of which is hereby acknowledged, SELLER does hereby agree to sell and convey the property to BUYER and BUYER does hereby agree to purchase said property from the SELLER upon the following terms and conditions:
1. PURCHASE AND SALE OF PROPERTY: At the closing, SELLER shall sell and BUYER shall purchase all of SELLER’S right, title and interest to the property described in the attached Exhibit “A”, for the purchase price and subject to the terms and conditions hereinafter set forth and relying upon the representations and warranties made herein. Said right, title and interest shall include any easements or riparian rights associated with subject property and the created wetlands adjacent thereto, sufficient for BUYER to construct and maintain access along the created wetlands for the contemplated waterfront amenities along the shoreline of subject property. SELLER specifically retains all riparian rights not necessary to accomplish the improvements contemplated therein.
2. PURCHASE PRICE: The purchase price for the property shall be the sum of ONE MILLION, FIVE HUNDRED SIXTY-FIVE THOUSAND DOLLARS ($1,565,000.00), subject to the provisions of paragraph 17 below.
3. SURVEY: SELLER shall provide BUYER with any boundary, topo or other surveys made of the property within twelve months prior to the date of this contract. BUYER shall have the right, during the Inspection and Earnest money period below, to have the property surveyed by a surveyor of its own choice.
4. EARNEST MONEY: BUYER hereby agrees to deposit the sum of TEN THOUSAND DOLLARS ($10,000.00) as Earnest Money, upon the ratification and execution of this contract by SELLER. Said money shall be held in the Escrow Account of THE RICH COMPANY. In the event that BUYER fails to close within the allotted time periods set forth below, plus any extension thereto, unless pursuant to paragraph 8, then all of such earnest money shall be forfeited to SELLER as liquidated damages.
5. CLOSING: Closing shall occur no later than 45 days after execution of this Contract, subject to any extensions agreed to in writing between the parties.
6. TERMS, BALANCE AND PAYMENT OF PURCHASE PRICE: BUYER shall pay the sum of THREE HUNDRED AND SEVENTY-FIVE THOUSAND DOLLARS $375,000.00) as a down payment at the closing of this matter. SELLER shall finance the balance of ONE MILLION, ONE HUNDRED NINETY THOUSAND DOLLARS ($1,190,000.00). BUYER shall execute unto SELLER a Purchase Money Note and Deed of Trust, containing the following terms:
7. SUSPENSION OF PAYMENTS: In the event of an administrative appeal to an Administrative Law Judge under the provisions of the Administrative Procedure Act, or actual General Court of Justice litigation or litigation challenging the transaction contemplated herein, any certificate of appropriateness required for development of any of the property described herein (not including any appeal to the City of Washington Board of Adjustments), or any other development permits, including all Local, State or Federal permits, CAMA, Department of Health and Human Services, Sedimentation and Erosion Control, Division of Environmental Management, or otherwise, by a party or parties not executing this Agreement, then all interest accrual and principal payments under the Note will be suspended, until the final adjudication of such suit or administrative case, and BUYER shall not be required to make any such payments during that time period.
8. INSPECTION AND DUE DILIGENCE: BUYER and BUYER’S Agents and Contractors shall have the right to enter the property for a period of Thirty (30) days after the execution of this contract, to inspect the property, to perform such tests, inspections, physical area surveys, examinations, evaluations, feasibility studies, and appraisals, to perform environmental evaluations, to determine the status of utilities, and to conduct any and all such examinations, investigations, and other studies, to determine in BUYER’S sole discretion that the property is suitable for BUYER’S intended use of the property as a commercial development site. BUYER hereby agrees to indemnity and hold SELLER harmless against all losses, damages, costs, and expenses, including reasonable Attorney’s fees, suffered or incurred by SELLER as a result of such entries and/or tests upon the property by BUYER. BUYER shall have the right to notify SELLER at any time prior to the expiration of the inspection period that the property is not suitable for BUYER’S intended purposes (in BUYER’S sole discretion), to terminate this contract, and BUYER’S earnest money shall be forfeited as liquidated damages, unless BUYER is unable to proceed due to the Conservation Easement not being received or approved by BUYER, in which case the earnest money shall be refunded.
9. NOTICE OF INTENT: On or before the Thirty-first (31st) day after the execution of this Contract, BUYER shall give to SELLER its Notice of Intent to close, or Notice of Withdrawal. In the event BUYER gives written notice of intent to close, closing shall occur within fourteen (14) days thereafter. In the event BUYER gives notice of withdrawal, all of BUYER and SELLER’S obligations hereunder shall be immediately terminated, and SELLER shall be entitled to retain BUYER’S TEN THOUSAND DOLLARS ($10,000.00) in earnest money as liquidated damages.
10. BUYER’S OBLIGATIONS FOR MASTER PLANNING AND SUBDIVISION: Prior to beginning any development, BUYER agrees to prepare a Master Site Plan for the property conveyed herein. BUYER shall provide to SELLER said Master Site Plan as soon as BUYER has finalized the same.
11. PROVISION FOR URBAN DESIGN PLAN: SELLER agrees to commission and have completed within twelve (12) months from the closing date hereof, a market based Urban Design Plan (“UDP”) for the downtown riverfront and business district. Such UDP shall be inclusive of the property purchased hereunder, and generally be defined as:
BUYER agrees to pay the sum of FIFTEEN THOUSAND DOLLARS ($15,000.00) to the SELLER or SELLER’S designee as contribution for payment for the preparation of said UDP, as invoiced by SELLER.
12. EXCHANGE OF PROPERTY: SELLER and BUYER agree that BUYER shall deed to SELLER, by Easement Deed, that property necessary to install infrastructure improvements to Water Street under paragraph 14 hereunder, and SELLER agrees to convey to BUYER such portion of that 50’ x 213’ parcel located adjacent to the western line of the property conveyed herein, which is not occupied by SELLER’S pumping station, said property being more particularly shown on that map of survey by Russell Waters, dated April 23, 2003, for the purpose of SELLER’S use in the development of the boat slips pursuant to paragraph 16 hereunder. BUYER shall convey back to SELLER an easement across said lot for SELLER’S access and maintenance of its pumping station. This exchange of property shall be under N.C.G.S. § 160A-266(a)(5).
13. AGREEMENT FOR RELEASE OF PROPERTY FROM NOTE AND DEED OF TRUST: SELLER agrees to permit the release of any of the property being sold hereunder, from its Note and Deed of Trust, under the following terms:
14. SITE IMPROVEMENTS AND UTILITIES After closing BUYER will be allowed to construct infrastructure improvements to the property that will enhance its value and marketability, including the widening of Water Street, the provision of on-site streets, raising the ground elevations, or preparing the properties riparian areas for boat slips. All infrastructure improvements must meet the City’s regulations for development and conform to the approved Master Site Plan.
BUYER agrees to convey to SELLER such land areas as are necessary for the proposed improvements to the southside of Water Street, as well as to dedicate to the SELLER all rights of ways and easements necessary for utility improvements.
15. PAYMENT BY SELLER FOR PUBLIC INFRASTRUCTURE IMPROVEMENTS: SELLER agrees to pay the first ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000.00), and BUYER agrees to pay the remaining costs, for the following public infrastructure improvements:
16. BOAT SLIPS AND APPLICATION FOR PERMITS Prior to the expiration of the thirty (30) day due diligence period provided in paragraph 8 above, SELLER shall deliver to BUYER a copy of the final and executed easement between the City and the Clean Water Trust Fund relative to the created wetland storm water facility. BUYER shall have the right to examine the same and determine if access to and construction of the proposed waterfront amenities is permitted under the Conservation Easement. In the event BUYER determines, in its sole discretion, that such access and construction are not permissible, then BUYER shall have the option of proceeding to closing or terminating its Agreement with SELLER and receiving a full refund of its earnest money. In the event that the conservation easement is not received prior to the expiration of the thirty (30) day due diligence period, closing shall be continued until receipt thereof.
At closing, SELLER shall convey to BUYER any easements or riparian rights associated with subject property and the created wetlands adjacent thereto, sufficient for BUYER to construct and maintain access along the created wetlands for the contemplated waterfront amenities along the shoreline of subject property, with SELLER retaining all riparian rights not necessary to accomplish the improvements contemplated herein.
SELLER agrees, and at no cost to SELLER, to be a Co-Applicant with BUYER in the pursuit of State and Federal permits required for the proposed boat slips in accordance with the approved site plan. BUYER shall hold SELLER harmless from any action arising out of the permitting process, which shall include the duty to defend and hold SELLER harmless from any and all costs, Attorney’s fees or expenses therefrom.
17. REDUCTION IN PURCHASE PRICE BASED UPON NUMBER OF BOAT SLIPS: BUYER and SELLER agree that in the event that the joint effort between the SELLER and BUYER is unsuccessful in obtaining permits allowing the construction of boat slips and associated upland facilities, within Sixty (60) months of closing hereunder, SELLER will reduce the principal balance due on the Note and Deed of Trust to an amount equal to TEN THOUSAND DOLLARS ($10,000.00) for each permanent slip less than Fifty (50) not approved. In no case, however, shall such reduction of principal exceed a total of TWO HUNDRED FORTY THOUSAND DOLLARS ($240,000.00). Such reduction shall be made in said Note and Deed of Trust at the time BUYER and SELLER agree that BUYER has received permits for the maximum possible number of slips, however any reduction due hereunder shall be established and applied at the time of the final due date of the note.
18. BUYER’S USE OF CREATED WETLANDS: To the extent permitted by the Conservation Easement and Clean Water Trust Fund Agreements, SELLER will allow BUYER the use of its created wetlands to satisfy BUYER’S storm water runoff requirements for development on all development components, provided BUYER complies with the 70% impervious surface requirement.
19. SELLER’S OBLIGATIONS RELATING TO CLEAN WATER MANAGEMENT PROJECT: SELLER and BUYER both acknowledge the development of the Wetlands Component of the Clean Water Management Project between the property being transferred herein and the Pamlico River (hereinafter the “Wetlands Component Property”) is an amenity to the property which is being purchased, and is an important factor in justifying BUYER’S purchase price offered. Accordingly, in connection with that Wetlands Component Project, shall:
20. SELLER’S RESTRICTION ON EVANS SEAFOOD PROPERTY: If SELLER elects to sell that property known as the Evans Seafood Property, as more particularly shown on that map recorded in Deed Book 905, Page 155, Beaufort County Registry, SELLER agrees to the following restrictions upon said sale:
21. BROKERAGE COMMISSION: BUYER hereby acknowledges that it has entered into a Brokerage Commission Agreement with Thomp Litchfield, Jr. of The Rich Company, calling for the payment of commission to The Rich Company at closing if Fred Fletcher, Jr. is a principal in the purchasing entity. BUYER discloses that Fred Fletcher, Jr. is a principal in this transaction.
22. SELLER REPRESENTATIONS AND WARRANTIES: SELLER hereby represents and warrants to BUYER that:
23. ENVIRONMENTAL COMPLIANCE:
24. REPRESENTATIONS AND WARRANTIES OF BUYER:
BUYER, as of the date of this Agreement and as of the closing date, represents and warrants to SELLER that:
25. CONDUCT PRIOR TO CLOSING: Between the date of this Agreement and the closing date, the parties agree as follows:
27. RISK OF LOSS: SELLER shall assume or be responsible for all Risk of Loss as a result of the ownership of said property, other than BUYER’S responsibilities for its activities as provided herein, between the date of execution of this contract and closing.
28. EXPENSES: SELLER and BUYER each agree to pay their own engineering, legal, and any other expenses incurred by or in connection with this transaction, except as agreed in Paragraph 16 herein.
29. ASSIGNMENT: BUYER shall have the right to assign its interest in this contract to any successor organization to it, which is controlled by BUYER’S disclosed principals, without the approval of SELLER. BUYER shall have the right to assign its interest in this Agreement to any other party, with the approval of SELLER. SELLER’S approval shall not be unreasonably withheld.
30. AUTHORIZATION FOR NOTICES: Any notices required or permitted to be given hereunder shall be deemed as given when (1) delivered in person, or (2) sent by facsimile, upon receipt of acknowledgement of receipt thereof, or (3) deposited in the United States mail, by registered or certified mail, return receipt requested; postage prepaid and properly addressed to the respective party to whom such notice or letter was written at the following facsimile and addresses:
TO SELLER: The City of Washington
Copy To: Fred N. Holscher
TO BUYER: Moss Property Partners, L.L.C.
Copy To: Wayland J. Sermons, Jr.
31. GOVERNING LAW: This Agreement shall be deemed a contract made under and governed by the laws of the State of North Carolina.
32. ENTIRE AGREEMENT: This Agreement, the exhibits attached hereto, and the documents and instruments executed and delivered simultaneously herewith constitute the entire Agreement and understanding of the Parties with respect to the subject matter hereof and supercede all prior agreements or understandings relating to the subject matter herein, and there exist no agreements, understandings, warranties or representations between the parties hereto other than those set forth herein in such exhibits, documents and instruments.
33. REVISED AGREEMENT: Both parties agree that this is a revised agreement, and the terms, conditions and obligations contained herein replace and supersede those contained in the previous contract between the parties.
IN TESTIMONY WHEREOF, SELLER has caused this instrument to be executed by its Mayor, attested by its City Clerk, all by proper municipal authority duly given after proper public hearing, and the BUYER has hereunto caused this instrument to be executed by its Manager, who has the proper company authority and authorization, this the day and date first above written.
THE CITY OF WASHINGTON
MOSS PROPERTY PARTNERS, L.L.C.