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Home My WebLink About1995-09-27 95-416 ORDERCOUNCIL ACTION 95-416 Item No. Date Sentember 27. 1995 Item/Subject: Authorizing City Manager to Execute and Assign Purchase aM Sale Agreement for Acquisition of Property at 373 Main Street, Tax Map 35, Lot 134A (Perry's Restaurant) Responsible Department: Legal This Order would approve execution and assignment of a purchase and sale agreement for acquisition of the Perry's Restaurant property at 373 Main Street. The Perry's Restaurant property would form part of the project redevelopment site for the proposed Shaw's supermarket project at the former gasworks site. The agreement would also resolve pending litigation arising out of the City's proposed eminent domain acquisition of the Perry's Restaurant property. ju4 Department Head gu Nana //s `C'emyymenta: / /pr/rPr,�'✓a/pnpmf !'apnfdirar�rv�mjpsra»f ,� t�� 7i Prr�w�aaAMi,tirf- + ( �/iLIS /�.1. City Manager Associated Information: Order, Agreement Legal Approval: Finance Director City Sol'c"tar Introduced For NEW BUSINESS Passage First Reading Referral Page 1 of 13 95-616 Anig ed to Cooacdot Woodcock September 27, 1995 CITY OF BANGOR (nn, (DI1bCTt „Authorizing City Manager to Execute and ,Assign Purchase and Sale Agreement for Acquisition of Property at 373 Hain Street,_ T„ .Map 35, Lot 134A (Perry'q.Reataurartt) By Me MY Cwsplt Of Gtih of Deeper ORDRP s TMAT the City Manager is hereby authorised, on behalf of the City of Bangor, to execute a -Agreement for the Purchase and Sale of Real Estate", a copy of which is attached hereto, for the acquisition of land and buildings located at 373 Main Street, Bangor, Maine, known as "Perry's Restaurant." The City Manager is further authorized, on behalf of the City of Bangor, to assign said agreement to The Boulos Company, Inc. or its designee, pursuant to a certain Development Agreement between the City of Bangor and Penobscot Development Limited Liability Company, to be approved concurrently with this Council Order. IN CITY COUNCIL September 27, 1995 Passed .Ip Y CLERK 95-416 ORDER Title, Authorizing City Manger tO Execute and Assign Purchase and Sale Agreement for Acquisition of Property 134A3'3i9(Perry's Restaurant) .......................... E.p..'n.s...'t.d.t... Aeeipud to .................. Councilman 95-616 AGREEMENT FOR SALE OF REAL ESTATE THIS AGREEMENT, made and entered into by and between PAUL NELLIGAN d/b/a PERRY'S RESTAURANT of Hampden, County of Penobscot; JACQUELINE RAWCLIFFE, for herself and as Personal Representative of the Estate of Joseph Perry, Sr., of Hampden, County of Penobscot; CATHERINE FEARON of Hampden, County of Penobscot; JEANNE BARRY of Carmel, County of Penobscot; JOANN EOGECOMBE of Hampden, County of Penobscot; HARPER OOYON of Hampden, County of Penobscot; JOSEPH PERRY, JR., of Brewer, County of Penobscot; and PAMELA J. CRATE Of Gardiner, County of Kennebec and State of Maine (hereinafter called "SELLER") and the CITY OF BANGOR of Bangor, County of Penobscot and State of Maine (hereinafter called 'BUYER'). 211 T N§ 6 P 19: TMAT, WHEREAS, upon the terms and conditions hereinafter set forth, the SELLER is desirous of selling certain real estate with buildings thereon owned by the SELLER situated in the City of Bangor, County of Penobscot and State of Maine, and the BUYER is desirous of purchasing the same upon such terms and conditions. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows: 1. Subiect Matter of Sale. SELLER hereby agrees to sell and convey to the BUYER, and BUYER hereby agrees to buy from the SELLER, for the price and upon the terms and conditions hereinafter set forth, certain real estate with buildings thereon located at 95-416 -2- 373 Main Street, in the City of Bangor, County of Penobscot and State of Maine, depicted as Lot 134A on City of Bangor Tax Map 35 and known as Perry's Restaurant and all fixtures and personal property located therein at the time possession IS surrendered (hereinafter referred to as the "Premises"). The real estate and buildings described herein being all of the real estate and buildings owned by the SELLER located at 373 Main Street, Bangor, Maine, and being the same property described in the Warranty Deed from Charles Perry Enterprises, Inc. to Charles E. Perry and Martha C. Perry dated February 21, 1968 and recorded in Bock 2126, Page 351, Penobscot County Registry of Deeds. 2. Purchase Price. BUYER agrees to pay the purchase price of ONE HUNDRED SIXTY THOUSAND DOLLARS ($160,000.00) for the premises, to be paid as follows, a. A non-refundable deposit of Fifteen Thousand Dollars ($15,000.00) at the time of the execution of this Agreement; and b. One Hundred Forty -Five Thousand Dollars ($145,000.00) at closing. c. All payments to the SELLER shall be by check made payable to "Dyer end Goodall, Trust Fund" and the SELLERS, by signing this Agreement, each for themselves, their personal representatives, heirs and assigns waive any liability or claims against the BUYER concerning the distribution of the 95-416 -3 - proceeds of the sale between the SELLERS. At the closing the BUYER may pay directly any mortgagees, lien holders, property taxes, utilities, and closing costs directly with credit against the purchase price. 3. Closing Date and Good and Marketable Title. SELLER agrees that the premises are to be conveyed no later than January 31, 1996, or at such earlier time as the partiesmay,agree, by a good and sufficient Warranty Deed of the SELLER conveying a good and clear record and marketable title to the same, free of all encumbrances except any restrictions of record now in force applicable thereto, and provisions of the ordinances and laws of the City of Bangor and/or State of Maine. Such title, including any restrictions of record now in force, must be reasonably acceptable to BUYER and the BUYER's assignee. SELLER shall grant to BUYER an extension of up to sixty (60) days for the closing in the event any delay is caused by the SELLER or by any third party which delay is beyond the control of the BUYER and is not caused by the BUYER. Such delays may include delays in obtaining required permit approvals, regulatory approvals, or financing approvals necessary to permit the BUYER or BUYER's assignee to go forward with an intended supermarket development project to be constructed on the Premises and other adjacent land (the "Shaw's Project"). SELLER agrees to execute and deliver to BUYER or BUYER's assignee at closing such affidavits and certificates as are reasonably necessary for BUYER's or BUYER'S 95-416 _4_ assignee's acquaition end financing of the Premises and the Shaw's Project, including, without limitation, a "Certificate of Won -Foreign Status", a title insurance "owner's Affidavit" regarding mechanics liens and persons in possession, and "REW" forms required by the State of Maine. 3A. Destruction or LosePrenises Prior to ClOgina. All risk of lees to the Premises prior to the closing shall be on the SELLER, and the SELLER shall keep the same fully insured against fire and other extended coverage risks until the closing. in the event SELLER 1s permitted to remain in possession of the Premises after the closing as provided in paragraph 5 below, all such insurance shall be extended through and including the actual date of possession by the BUYER or BUYER's assignee, and the BUYER or BUYER's assignee shall be named as a beneficiary of all such insurance policies. Notwithstanding any damage to, loss or destruction of all or a portion of the improvements, fixtures or personal property located on the Premises due to fire or ether casualty prior to the closing,. BUYER or BUYER's assignee shall have the right to require SELLER to sell the Premises to the BUYER or BUYER'S assignee for the consideration and under the remaining terms and conditions set out in this Agreement, and in such event BUYER OR BUYER's assignee shall be entitled to receive from the SELLER the net proceeds of any such insurance policy or policies. 4. Title Defects. SELLER will have ninety (90) days after notice of any title defect to correct said defect. SELLER shall be 95-416 -5- entitled to apply all or any portion of the sale proceeds at closing for this purpose. In the event SELLER is unable to cure any such title defect prior to the closing, the BUYER or BUYER's assignee shall be entitled to rescind this Agreement and to recover all same paid to the SELLER hereunder. Alternatively, the BUYER or BUYER's assignee shall be entitled to cure such defect and to deduct the cost of curing such defect from the purchase price. In the event a title defect is discovered after closing, SELLER shall cure the defect within thirty (30) days after written notice from the BUYER or BUYER's assignee. Any such notice shall be given, if at all, within forty-five (45) days after the closing. in the event BUYER is unable to cure any such title defect within thirty (30) days of such notice, the BUYER or BUYER's assignee shall be entitled to rescind this Agreement and to recover all sums paid to the SELLER hereunder. Alternatively, the BUYER or BUYER's assignee shall be entitled to cure such defect and to recover the full cost of curing such defect from the SELLER. 5. Transfer of Possession. The SELLERS shall remain in possession with the right to operate the restaurant until closing or until a later date if the operation of the restaurant will not interfere with the proposed construction plans of the Shaw's Supermarket. SELLER's possession of the Premises after the closing shall be in the sole discretion of the BUYER or BUYER's assignee, and shall be terminable upon thirty (30) days' written notice. SELL8R's possession of the Premises after the closing shall be without payment of rent, but during such time the SELLER shall 95-416 -6- defend, hold harmnless and indemnify the BUYER or BUYER's assignee from and against any claims, demands, actions, judgments or liabilities that may occur as a result of injuries to any third party caused by the SELLER and operators of the restaurant. The SELLER will carry liability insurance which will provide this protection to the BUYER and BUYER'S assignee, with the face value of the insurance coverage being $300,000.00 for each occurrence. During this period of possession, the City of Bangor, its representatives, agents, consultants and those of Shaw's Supermarkets, Inc., Boulos Company, Inc. and Penobscot Associates Limited Liability Company will have a right of access to the building for the purposes of inspecting, making studies necessary ,for their proposed development activities. This section five of this Agreement shall survive the closing and shall not merge with the conveyance. 6. Proration. The real estate taxes shall be prorated as of the date of closing in accordance with the fiscal year for the City of Bangor, imine. ]. Fixtures. Personal Property and Assets. Included within the sale are all fixtures and all personal property remaining at the time of surrendering of possession of the premises. Prior to surrendering possession, the SELLERS may remove any Personal property and the following fixtures: One 4' x 8' stainless steel top work table with lower and upper shelving 30 + foot of Formica covered bar 95-416 -]- Two bathroom flushes and wash basins Three large plate glass windows One 4 barrel beer cooler One 15 case bottled beer cooler One 4'x 10' walk-in cooler Various light fixtures The furnace or parts Seventeen metal bar stools Various tables and booths Excluded from the sale is the business known as Perry's Restaurant, its name, good will, and all licenses and franchises, if any. The SELLERS shall have the right to collect and keep all accounts receivable. The BUYER shall net be liable for any debts or liabilities of the SELLER relating to Perry's Restaurant, the premises, fixtures and/or personal property. SELLER shall discharge and hold harmless and indemnify the BUYER for mechanics liens or other liens or attachments to the premises perfected after the closing. 8. Transfer Tax and Fees. SELLER and BUYER are to pay one-half (1/2) each of the transfer tax to the extent they are liable. SELLER and BUYER shall each pay for their own attorney's fees. SELLER and BUYER acknowledge and represent to the other that no real estate broker or agent has been involved in this Agreement or sale, and no commission or finder's fee is due to any person as a result of this Agreement or sale. 95-416 9. Hazardous Wastes. BUYER or BUYER's assignee shall have forty-five (45) days after closing in which to perform an environmental assessment of the Premises. In the event such environmental assessment shall confirm the presence of regulated hazardous materials or toxic or hazardous wastes upon the Premises of a type or in quantities which the BUYER or BUYER's assignee shall deem to be unacceptable, the BUYER or BUYER'S assignee shall have the right to rescind this Agreement and to recover all sums paid to the SELLER hereunder. 10. Default. In the event the SELLER fails to close hereunder for a reason other than the default of the BUYER shall have all other remedies available at law and equity, including the right of specific performance. In the event that BUYER fails to close hereunder for a reason other than the default of the SELLER, the SELLER shall retain the earnest money deposit as full and complete liquidated damages in lieu of any other legal or equitable remedy, in which case this Agreement will terminate and neither party will be of any further obligation hereunder. It is agreed by the BUYER and the SELLER that the $15,000.00 deposit constitutes a reasonable estimate of damages to be sustained by the SELLER In the event of a default of the BUYER'S purchase obligations under this Agreement. 11. Settlement and Waiver of Certain Claims. It is hereby agreed that SELLER's acceptance of the purchase price as set out in paragraph 2 of this Agreement shall constitute a full and final accord, settlement, release and waiver of all claims of the SELLER, 95-416 SE or any of them, and of their respective successors, heirs and assigns against the City of Bangor, its successors and assigns and all other parties for payment of damages, relocation expenses, business interruption losses or other compensation of any kind or in any form from the City of Bangor, its successors and assigns arising out of the City of Bangor's, its successors or assigns acquisition of the Premises. Upon execution of this Agreement and upon SELLER's receipt of the $15,000.00 deposit, SELLER agrees to dismiss with prejudice its lawsuit against the City of Bangor and others, now pending in the Penobscot County Superior Court as docket no. Cv-95-118, arising out of a proposed eminent domain acquisition of the Premises by the City of Bangor. It is agreed that the settlement and waiver provisions of this paragraph shall survive the closing, and that the making or filing of any future claim, demand, or suit by which the SELLER or any of the SELLERS individually shall seek to obtain additional compensation or other relief arising out of the BUYER's acquisition of the Premises shall entitle the City of Bangor, its successors or assigns to recover as damages for the making or filing of any such claim, demand or suit all sums paid to the SELLER hereunder. It is the intention of the parties that this Agreement shall operate to the fullest extent permitted by law as a final accord and settlement of all claims, demands, suits and actions, of any kind, known or unknown, now pending or hereafter asserted by the SELLER, arising in any manner out of the City of Bangor's, its successors' or assigns' 95-416 -10- acquisition of the Premises. A demand or suit by the SELLERS or any of them to enforce this Agreement shall not be deemed a breach of this paragraph 11. 12. Miscellaneous. This agreement is assignable to The Poulos Company, Inc., and/or Penobscot Associates Limited Liability Company and/or Shaw's Supermarkets, Inc. and may not be modified except by a writing signed by all the parties and any assignee hereto. This agreement shall be binding on and inure to the benefit of the assignees; successors, personal representatives, heirs and devisees of the parties hereto. This Agreement is a contract and shall survive the closing and shall not merge with the deed delivery. IN WITNESS WHEREOF, the parties hereto have set their hands and seals this day of September, 1995. Paul Nelligan d/b/a Perry's Restaurant Jacqueline Rawcliffe, for herself and as Personal Representative of the Estate of Joseph Perry, Sr. Witness Catherine Fearon 95-416 -11- Jeanne Barry Joann edgecombe Witness Martha Doyron Joseph Perry, Jr. Pamela J. Crate CITY OF BANGOR (By) (Title)