[2023-94 Contract Sale Weber Exhibit 1.pdf]
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into as of
the __ day of , 2023 (the “Effective Date”), by and between the City of North
Olmsted, Ohio, an Ohio Municipal Corporation (“Seller”), and BDW Properties, LLC, an Ohio
Limited Liability Corporation (“Purchaser”).
RECITALS
WHEREAS, pursuant to the terms of this Agreement, Seller will sell and convey to
Purchaser and Purchaser will purchase and pay for the Property (as defined herein).
NOW, THEREFORE, for valuable consideration, including the purchase ptice and the
mutual covenants of Purchaser and Seller set forth herein, the parties agree as follows:
1. DESCRIPTION OF PROPERTY
1.1 Property. Seller shall sell and convey, and Purchaser shall purchase and pay for,
upon the terms and subject to the conditions hereinafter set forth, land containing approximately
.6615 acres or 28,816 square feet, and more fully described in Exhibit A, attached hereto and
incorporated herein by reference, including the improvements and other buildings situated
thereon with all fixtures and improvements associated therewith (collectively, the “Property”).
2. PURCHASE PRICE
2.1 Purchase Price. Purchaser shall pay to Seller on Closing (as hereinafter defined)
a purchase price (the “Purchase Price”) for the Property which shall be the sum of Twenty Five
Thousand Eight Hundred Fifty Five Dollars ($25,855.00) for the Property; which Purchase Price
shali be payable as follows:
(a) An amount equal to Five Thousand Dollars ($5,000.00) (the “Eamest Money”)
shall be deposited in an escrow account (the “Escrow Account”) with Nova Title
(“Escrow Agent” or “Title Company”) by wire transfer within five (5) days
following the Effective Date.
(b) The balance of the Purchase Price, subject to the prorations and adjustments
described in this Agreement, shall be deposited into the Escrow Account by wire
transfer of Federal funds or official bank or cashier’s check drawn on an
institutional commercial bank or savings and loan association payable to the order
of Escrow Agent at least one business day preceding the Closing Date (as
hereinafter defined).
(c) Purchaser's failure to timely deposit the Earnest Money or make any other
payments required by the terms of this Agreement shall constitute an immediate
Default by Purchaser of this Agreement, which, if not remedied within two (2)
business days from receipt of notice by Seller of the Default, shall entitle Seller, at
its option, to terminate this Agreement by written notice to Purchaser and to
pursue immediate remedies against Purchaser pursuant to terms of this
Agreement.
3. CONVEYANCE OF TITLE AND OTHER DOCUMENTS
3.1 Property. Seller shall convey, or cause to be conveyed, fee simple insurable title
to the Property to Purchaser by a good and sufficient limited warranty deed (the “Deed”),
reasonably acceptable to Purchaser and Seller, conveying title thereto to Purchaser, free and clear
of liens and encumbrances, except zoning and building ordinances, real estate and all ad valorem
taxes and assessments both general and special not currently due and payable, liens and
encumbrances caused by Purchaser, those liens, claims and encumbrances and matters of record
not objected to by Purchaser within the Inspection Period (as hereinafter defined) or objected to
but subsequently waived by Purchaser, and matters disclosed on the Survey (as hereinafter
defined), ail of the foregoing collectively referred to herein as the “Permitted Encumbrances.”
4, TITLE INSURANCE AND SURVEY
4.1 Title Insurance. Within thirty (30) days after the date hereof, Purchaser may
cause the Title Company to examine title to the Property and prepare a written commitment (the
“Title Commitment”) for an owner’s policy of title insurance in standard form insuring title to
the Property to Purchaser in the amount of the Purchase Price (the ‘‘Title Policy”).
4.2 Survey. Prior to the Closing Date, Purchaser may cause, at its expense, a survey
of the Property (the “Survey’’) to be prepared.
5. CLOSING AND ADJUSTMENTS
5.1 Escrow Agent; Closing Date. The closing of the transaction contemplated hereby
(the “Closing”) shall be effected through an escrow established with the Title Company. All
documents necessary for the completion of this transaction shall be deposited with the Escrow
Agent on or before or such later date as mutually agreeable to the parties
(the “Closing Date”). All funds necessary for completion of the Closing shall be deposited with
the Escrow Agent so as to permit the Closing to occur, and funds to be disbursed from the
escrow to Seller, on the Closing Date. This Agreement, together with the Escrow Agent’s usual
conditions of acceptance, shall serve as escrow instructions; provided, however, that in the event
of any conflict between the provisions of this Agreement and the Escrow Agent’s usual
conditions of acceptance, the provisions of this Agreement shall govern.
5.2 Closing Deliveries.
(a) Seller shall deposit into escrow the following documents and instruments on or
prior to the Closing Date, duly executed and acknowledged where appropriate:
(1) the Deed; (2) evidence of compliance by Seller to the provisions of Section
1445 of the Internal Revenue Code of 1986, as amended; (3) such documentation
as is reasonably and customarily required by the Title Company to issue the Title
(b)
5.3
Policy in the form required by this Agreement; and (4) such other documents as
may be reasonably required to consummate the transaction contemplated hereby.
On or prior to the Closing Date, Purchaser shall deposit into escrow the following,
duly executed and acknowledged where appropriate: (1) the sum required
pursuant to Section 2.1(b), (2) the conveyance fee and transfer tax or declaration
forms required by law, (3) evidence satisfactory to Seller and the Title Company
of Purchaser’s authority with respect to Purchaser’s execution, delivery and
performance of the terms, covenants and conditions of this Agreement, (4) such
documentation as is reasonably and customarily required by the Title Company to
issue the Title Policy in the form required by this Agreement; and (5) such other
documents as may be reasonably required to consummate the transaction
contemplated hereby.
Prorations/Expenses. Provided all documents and funds have been deposited in
escrow with the Escrow Agent or delivered at Closing as required by this Agreement and the
Title Company is in a position upon the filing of the Deed for record to issue the Title Policy as
may be provided for in Section 4.1, the Closing shall be completed as follows after making the
adjustments and prorations required by this Section 5.3:
(a)
(b)
(d)
Seller shall pay:
(i) any costs, expenses and/or prorations specifically to be paid by Seller as
provided herein.
Purchaser shall pay:
(i) the escrow fee, if any;
(ii) the cost of recording the Deed;
(iii) the title commitment, premium for the issuance of the Title Policy and any
endorsements thereto, and the cost of all charges and expenses associated
with the issuance of title insurance to any lender to Purchaser; and
(iv) all costs associated with Purchaser’s Inspections (as hereinafter defined)
of the Property; and
(v) any other costs, expenses and/or prorations to be paid by Purchaser as
provided herein.
All real estate taxes and assessments both general and special shall be prorated
between the parties as of the Closing based on the current bil] (or, if not available,
the last available tax duplicate) and reflected on a settlement statement prepared
by the Escrow Agent. Such proration shall be final.
The Escrow Agent shall record the Deed in the real estate records of the Fiscal
Officer’s office.
5.4 Possession. Seller shall deliver possession of the Property in its present condition,
subject to normal wear and tea.
5.5 Title Defects. During the Inspection Period (as defined herein), Purchaser shall
have the right to object to any matters set forth in the Title Commitment and the Survey.
Purchaser shall give Seller written notice (the “Objection Notice”) of any such matter set forth in
the Title Commitment or Survey to which Purchaser objects (each a “Title Defect’’) prior to the
expiration of the Inspection Period. Any matter not objected to by Purchaser within such
Inspection Period (or which Purchaser waives following the Objection Notice) shall be deemed
to be approved by Purchaser and included as a Permitted Encumbrance. If Purchaser delivers to
Seller an Objection Notice specifying a Title Defect within the Inspection Period, Seller shall,
within ten (10) days after the receipt of the Objection Notice, notify Purchaser in writing (the
“Seller’s Notice”) which of such Title Defects shall be cured by Seller prior to or at Closing;
provided, however that Seller shall only be obligated to cure any such Title Defect which either
was caused by Seller’s actions after execution of this Agreement or is a lien or encumbrance that
can be removed by the payment of a sum certain (unless caused by Purchaser). Within five (5)
days after receipt of the Seller’s Notice, Purchaser, as its sole and exclusive remedy, shall notify
Seller in writing of Purchaser’s election to either (i) accept title to the Property subject to the
Title Defects Seller is not obligated (or has not otherwise elected) to cure, without an abatement
or reduction of the Purchase Price in accordance with the terms of this Agreement, or (ii)
terminate this Agreement. If Purchaser elects to terminate this Agreement, all documents
deposited into escrow shall be returned to the party who delivered or deposited the same, the
Earnest Money shall be paid to Purchaser, and thereupon the parties shall be released from any
further obligations hereunder each to the other, except that Purchaser shall pay all the expenses
of the Escrow Agent and the Title Company, if any. If Purchaser does not elect to terminate, or
fails to make a written election, within the five (5) day period following Seller’s Notice,
Purchaser shall be deemed to have elected to accept title to the Property, subject to all Title
Defects which shall thereafter be deemed Permitted Encumbrances, without an abatement or
reduction of the Purchase Price and the Earnest Money shall become nonrefundable.
6. RISK OF LOSS
6.1 Risk of Loss. Risk of loss to the Property or any part thereof shall remain on
Seller until the Closing.
7. REPRESENTATIONS AND WARRANTIES
7.1 Seller’s Representations. Seller represents, warrants and agrees as follows:
(a) The Property is subject to no options or agreements regarding the transfer of title
to the Property and Seller has received no written notice of any legal or
governmental action, litigation, or pending or threatened claim that would impair
the Property or Seller’s ability to perform the transactions contemplated by this
Agreement.
(b) Seller has received no notice of taking, condemnation, betterment or assessment,
actual or proposed, with respect to the Property.
7.2 Purchaser’s Representations. Purchaser represents, warrants and agrees as
(a)
(b)
follows:
Purchaser has the lawful right, power, authority and capacity to purchase the
Property in accordance with the terms, provisions and conditions of. this
Agreement.
There are no actions, suits or proceedings pending against, by or affecting
Purchaser which question the validity or enforceability of this Agreement or of
any action taken by Purchaser under this Agreement, in any court or before any
governmental authority, domestic or foreign.
Section 7.3. Disclaimer. OTHER THAN TO THE EXTENT OF THE
EXPRESS REPRESENTATIONS SET FORTH IN THIS AGREEMENT OR IN
THE DOCUMENTS EXECUTED AND DELIVERED TO PURCHASER BY
SELLER AT CLOSING (HEREIN CALLED THE “EXPRESS
REPRESENTATIONS”), SELLER DOES NOT, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, AND SELLER SHALL NOT, BY THE
EXECUTION AND DELIVERY OF ANY DOCUMENT OR INSTRUMENT
EXECUTED AND DELIVERED IN CONNECTION WITH CLOSING, MAKE
ANY REPRESENTATION OR WARRANTY, EXPRESS OR (IMPLIED, OF
ANY KIND OR NATURE WHATSOEVER, WITH RESPECT TO THE
PROPERTY, AND ALL SUCH REPRESENTATIONS AND WARRANTIES
ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, OTHER THAN TO THE EXTENT OF THE EXPRESS
REPRESENTATIONS, SELLER MAKES, AND SHALL MAKE, NO
EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AS TO
MATTERS OF TITLE, ZONING, TAX CONSEQUENCES, PHYSICAL OR
ENVIRONMENTAL CONDITION (INCLUDING, WITHOUT LIMITATION,
LAWS, RULES, REGULATIONS, ORDERS AND REQUIREMENTS
PERTAINING TO THE USE, HANDLING, GENERATION, TREATMENT,
STORAGE OR DISPOSAL OF ANY TOXIC OR HAZARDOUS WASTE OR
TOXIC, HAZARDOUS OR REGULATED SUBSTANCE), VALUATION,
GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR
ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE
PROPERTY (HEREINAFTER COLLECTIVELY CALLED ~~ THE
“DISCLAIMED MATTERS”). PURCHASER AGREES THAT, OTHER THAN
TO THE EXTENT OF THE EXPRESS REPRESENTATIONS, WITH
RESPECT TO THE PROPERTY, (A) PURCHASER HAS NOT RELIED UPON
AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF SELLER, (B) WILL CONDUCT
SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY
(INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITION THEREOF) AND RELY UPON SAME
AND, (C) UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMED
MATTERS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S
8.1
(a)
(b)
INSPECTIONS AND INVESTIGATIONS. SUBJECT TO THE EXPRESS
REPRESENTATIONS, SELLER SHALL SELL AND CONVEY TO
PURCHASER, AND PURCHASER SHALL ACCEPT, THE PROPERTY “AS
IS”, “WHERE IS”, AND WITH ALL FAULTS, AND, OTHER THAN THE
EXPRESS REPRESENTATIONS, THERE ARE NO ORAL AGREEMENTS,
WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR
AFFECTING THE PROPERTY BY SELLER OR ANY THIRD PARTY. THE
TERMS AND CONDITIONS OF THIS SECTION SHALL EXPRESSLY
SURVIVE THE CONSUMMATION OF THE PURCHASE AND SALE OF
THE PROPERTY ON THE CLOSING DATE, THE DELIVERY OF THE
DEED AND THE PAYMENT OF THE PURCHASE PRICE, WITHOUT
REGARD TO ANY LIMITATIONS UPON SURVIVAL SET FORTH IN THIS
AGREEMENT.
8. INSPECTION OF PROPERTY
Purchaser’s Inspection.
During the ten (10) day period following the Effective Date (the “Inspection
Period”), Purchaser shall have the right, at Purchaser’s sole cost and expense, to
inspect the Property and to ascertain the condition of title and the physical and
environmental condition of the Property, which may include a Survey, soil
borings or other tests, appraisals, engineering reports, environmental studies and
zoning inspections (“Inspections”). Purchaser agrees that it shall treat all
information and written materials obtained or generated in connection with the
performance of all inspections, tests and environmental studies conducted of the
Property (the “Reports”) as confidential materials and shall not disclose any
portion thereof except to the extent required by law (and if so required, Purchaser
shall simultaneously provide to Seller a copy of any disclosed information), and
only to Purchaser’s attorneys, mortgage lender(s), officers, members and
environmental consultants, and otherwise as permitted by the written consent of
Seller. Purchaser shall give Seller twenty four (24) hour notice prior to
performing any such tests. Any tests shall be conducted in a manner so as not to
damage the Property or disrupt or disturb Seller’s business as conducted on the
Property.
In the event Purchaser determines the Property is not suitable for Purchaser’s
intended use thereof, Purchaser may, by written notice to Seller not later than 5:00
p.m. on the expiration date of the Inspection Period, terminate this Agreement,
whereupon the Earnest Money shall be returned to Purchaser and the parties shall
be released from any further obligations hereunder each to the other, except that
Purchaser shall promptly provide Seller with copies of the Reports, Purchaser
shall pay all the expenses of the Escrow Agent and the Title Company. In the
event that Purchaser fails to deliver to Seller such termination notice prior to the
expiration of the Inspection Period, Purchaser shall be deemed to have waived its
right to terminate based on the condition of the Property or the results of its
Reports, and the parties shall proceed to Closing upon the terms contained herein
without reduction in the Purchase Price and the Earnest Money shall become
nonrefundable.
9. PERMITS AND ZONING
At any time after the Effective Date, Purchaser shall seek and pursue the Permits and
Zoning (both as defined herein).
(A) Using due diligence and best efforts, and at its sole expense, Purchaser
shall seek to secure all permits, authorizations and approvals from federal, state, local or other
governmental agency, authority, entity or otherwise, which has or claims to have jurisdiction
over the Premises and Purchaser’s intended uses thereof which are required or may be desired
for Purchaser’s intended uses (collectively, the “Permits”). Purchaser’s intended uses are the
development of the Property with construction and site improvements, including a new structure,
to facilitate the on-site operations of Weber Automotive, presently located on the adjacent
property known as PPN 233-26-006. See Exhibit B, Proposed Site Development.
(B) If the Premises is not presently zoned, platted, subdivided or split to
permit the transfer, improvement and use of the Premises for Purchaser’s intended uses, separate
from any other property of Seller or any other tax parcel, Purchaser may take all necessary and
proper steps and proceedings to obtain a change of existing zoning, platting, variance in zoning,
subdivision, lot split, consolidation plat, or other order appropriate under the applicable federal,
state and local statutes and ordinances, and all amendments thereto, desired for Purchaser’s
intended uses and improvements for the Premises and the sale of the Premises as a separate and
legal tax parcel (collectively, the “Zoning”).
10. CLOSING CONDITIONS
Section 10.1 Purchaser’s Conditions. Purchaser’s obligations under this Agreement
are conditioned upon the satisfaction of each of the following conditions:
(A) Seller is able and willing to convey title to the Premises to Purchaser as
required by this Agreement, and after the Effective Date, there is no material adverse change to
the Premises.
(B) Seller shall have delivered all items required to be delivered by it under
this Agreement and shall have performed all of its obligations under this Agreement.
(D) The Permits and Zoning are approved by Purchaser, in its sole discretion.
Section 10.2 Seller’s Conditions. Seller’s obligations under this Agreement are
conditioned upon the satisfaction of each of the following conditions: (1) Purchaser applying for
and receiving approval from the City of North Olmsted and Cuyahoga County for a lot split and
consolidation of the portion of property presently located on PPN 233-26-063 (owned by Seller)
and further identified as 28,816 square feet, or .6615 acres of land, to a parcel of land known as
PPN 233-26-006 (owned by Purchaser) (See Exhibit A, Lot Split and Consolidation Plat); (2) the
approval of legislation by the City of North Olmsted changing the zoning classification of that
portion of land now located on PPN 233-26-063 (owned by Seller) and further identified as
28,816 square feet, or .6615 acres of land from “B One Family Residence” to “B-3 General
Business”; (3) Purchaser’s submission of a completed application to the City of North Olmsted
seeking approval of site improvements and development plan on the portion of property
presently located on PPN 233-26-063 (owned by Seller) and further identified as 28,816 square
feet, or .6615 acres of land; (4) Purchaser obtaining from the City of North Olmsted Building and
Zoning Board of Appeals final approval of any and all zoning code variances necessary to
undertake the site improvements and development plan identified in the application to the City of
North Olmsted; (5) final approval by the City of North Olmsted City Council of the development
plan submitted by Purchaser; (6) Final approval by the City of North Olmsted of all required
engineering and building plans; and (7) Purchaser’s application for, and issuance of, all required
building permits.
Section 10.3 Failure of Conditions. In the event any of the conditions set forth in
Sections 10.1 or 10.2 are not met, either party may, at its option, waive the condition, or
terminate this Agreement, by written notice to the other party thereupon the parties shall be
released from any further obligations hereunder each to the other. Upon termination of this
Agreement, all funds (including the Earnest Money) deposited by Purchaser shall be promptly
returned to Purchaser. Each party shall pay its own legal, experts’ and consultants’ fees and
expenses.
11, DEFAULT
11.1 Purchaser’s Default. In the event that Seller is ready, willing and able to convey
the Property in accordance with the terms and conditions of this Agreement, and Purchaser has
not terminated this Agreement in accordance with the provisions herein, but Purchaser fails to
consummate this Agreement and take title to the Property (a “Default” by Purchaser), the parties
recognize and agree that the damages Seller will sustain will be difficult if not impossible to
ascertain. Therefore, the parties agree that, in the event of Purchaser’s default, Seller shall be
entitled to the Earnest Money and any interest earned thereon as a genuine pre-estimate of
liquidated damages and not as a penalty for Purchaser’s failure to close. In addition to the
foregoing, Seller shall also be entitled to all other rights and remedies against Purchaser. Upon
any Default by Purchaser, within ten (10) days from written demand by Seller, Purchaser shall, at
its sole cost and expense, return all documents that Seller has provided to Purchaser.
11.2 Seller’s Default. If the purchase and sale of the Property contemplated hereby is
not consummated in accordance with the terms and provisions of this Agreement due to
circumstances or conditions which constitute a default by Seller under this Agreement (a
“Default” by Seller), the Earnest Money shall be refunded to Purchaser promptly upon request,
and Purchaser, as its sole and exclusive remedies, may either exercise the right to: (i) terminate
this Agreement, in which event all rights and obligations of the parties under this Agreement
shall expire, and this Agreement shall become null and void; or (11) sue Seller to collect actual
monetary damages; provided, however, that Purchaser shall be precluded from, and hereby
waives all rights to pursue specific performance of this Agreement and in the event that
Purchaser elects to seek to recover damages from Seller on account of any default by Seller
under this Agreement, Seller’s liability to Purchaser for all damages, of any nature whatsoever,
shall not exceed the amount of Earnest Money deposited by Purchaser as of the date Seller
receives notice from Purchaser of a default by Seller, and Purchaser shall not claim, sue for or
accept an award for more than the maximum amount of damages hereinabove set forth on
account of or in connection with this Agreement or any default by Seller under this Agreement.
In no event shall Purchaser have the right to recover from Seller any special or consequential
damages.
11.3 Effect of Termination. Upon any termination under Section |1.1 or 11.2 the
parties shall have no further rights and obligations under this Agreement other than those tights
and/or obligations that are expressly stated to survive expiration or termination of this
Agreement. The terms of Sections 11.1 and 11.2 of this Agreement shall survive the Closing or
termination of this Agreement.
12. MISCELLANEOUS
12.1 Binding Effect. Upon execution, this Agreement shal] be binding upon, and shall
inure to the benefit of, the parties hereto and the respective successors and assigns of each.
12.2 Brokers. The parties agree and acknowledge that is
acting as Seller’s broker for this transaction and will be compensated by Seller pursuant to a
separate agreement, and is acting as Purchaser’s broker for this
transaction and will be compensated by Purchaser pursuant to a Separate agreement. Seller and
Purchaser hereby agree to indemnify the other from and against all loss, cost, damage or expense
arising out of or resulting from the claim of any brokers or agents in connection with this
transaction which claim is based on an action or failure to act on the part of the indemnifying
party.
12.3. Further Assurances. Each party agrees to cooperate with the other, and to execute
and deliver, or cause to be executed and delivered, all such other instruments, and to take all such
other actions as he or it may be reasonably requested to take, from time to time, in order to effect
the provisions and purposes hereof.
12.4 Notice. Any notice or demand required or permitted to be given by or to either of
the parties hereto and every alleged breach of a warranty or representation contained in this
Agreement shall be made in writing and shall be deemed to have been given or delivered, as the
case may be, when delivered by: (a) hand delivery; (b) facsimile; (c) express overnight delivery
service; or (d) certified or registered mail, return receipt requested, and shall be deemed to have
been delivered upon: (1) receipt, if hand delivered or faxed; (ii) the next business day, if delivered
by express overnight delivery service; or (iii) the third business day following the day of deposit
of such notice with the United States Postal Service, if sent by certified or registered mail, return
receipt requested. Notices shall be provided to the parties and addresses (or facsimile numbers,
as applicable) specified below:
(a) Communications concerning Seller shall be addressed to:
Michael R. Gareau, Jr., Director of Law, City of North Olmsted, Ohio;
(b) Communications concerning Purchaser shall be addressed to:
12.5 Conflict of Laws. This Agreement shall be governed by the laws of the State of
Ohio.
12.6 No Waiver. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any
other agreement or provision herein contained. No extension of time for performance of any
obligations or acts shall be deemed an extension of the time for performance or any other
obligations or acts. No failure or delay of either party in the exercise of any right given to such
party hereunder shall constitute a waiver hereof unless the time specified herein for exercise of
such right has expired, nor shall any single or partial exercise of any right preclude others or
further exercise thereof or of any other right. The waiver of any breach hereunder shall not be
deemed to be a waiver of any other or any subsequent breach hereof.
12.7. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which, together, shall constitute one and the
same instrument. As used in this Agreement “execution of this Agreement” or “full execution of
this Agreement” means the execution and delivery of this Agreement by Seller and Purchaser.
12.8 Assignment. This Agreement shall not be assigned by Purchaser to any person
entity without the advance written consent of Seller, which consent may be withheld in Seller’s
discretion. At the time of Closing, Purchaser may, with the consent of Seller, request that a
nominee take title to the Property. No consent to any assignment or to a conveyance to a
nominee shall relieve Purchaser of an obligations arising under this Agreement.
12.9 Construing Language. The parties hereby acknowledge that each is a
sophisticated Purchaser or Seller of properties and each is represented by counsel and has had the
opportunity to review this Agreement. The covenants and agreements of the parties contained in
this Agreement shall not be construed in favor of or against either party, but shall be construed as
if both parties drafted this Agreement.
12.10 Severability. If any term, covenant, condition or provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Agreement or the application of
such term, covenant, condition or provision to any other person or any other circumstance (other
than those as to which it shall be invalid or unenforceable) shall not be thereby affected, and each
term, covenant, condition and provision hereof shall remain valid and enforceable to the fullest
extent permitted by law.
12.11 Time of the Essence. Time is of the essence of this Agreement. Anywhere a day
certain is stated for payment or for performance of any obligation, the day certain so stated enters
into and becomes a part of the consideration for this Agreement. If any date set forth in this
Agreement shall fall on, or any time period set forth in this Agreement shall expire on, a day
which is a Saturday, Sunday, federal or state holiday, or other non-business day, such date shall
automatically be extended to, and the expiration of such time period shall automatically be
extended to, the next day which is not a Saturday, Sunday, federal or state holiday or other non-
business day. The final day of any time period under this Agreement or any deadline under this
Agreement shall be the specified day or date, and shall include the period of time through and
including such specified day or date.
12.12 Recitals and Section Headings. The recitals first set forth on page | of this
Agreement are incorporated herein as substantive terms of the Agreement. The headings to
sections of this Agreement are set forth only for convenience and are not substantive to the
Agreement.
12.13 Entire Agreement. This Agreement, together with each Exhibit and Schedule
attached hereto and referenced herein, represents the entire Agreement between Seller and
Purchaser with respect to the subject matter hereof and may be amended, modified or changed
only pursuant to a written instrument executed on behalf of both Purchaser and Seller. This
Agreement shall not be recorded by either party.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the
Effective Date.
SELLER:
By:
Name:
Title:
PURCHASER:
By:
Name:
Title:
woe
Camo)
Te]
3TWVIS SIHd¥VAD
YANNI UID
DeGuts “T ARat
0 40
‘pia
HEBDH JO AUD Fe JO BIINONT INS 1A OWDddY MEILYOMOSNOD ONY IITs 1OT JO dy Sail
Siq1 OO ‘GUSMO a
BOIDHO HT
Pimer ae ME
“SLR ot SIM) OID ‘G3ISFNO HIZON
40 AID PHL 40 YOLIZeIO MYT THs 4B ORADddY NOUNCHOSNOD ONY Wigs 107 40 dyn SIL
NOLIINIG JIMATS
AGNEYTA_ NATH
£207 * 30 30 SHR) GHD ‘GatSNTO HIWON
40 AIS JHE JO WOL9RI0 IOMNIS FHL LA O3AOddY NOUWENOSNOD ONY INS 101 40 dv SINL
WoRNGD 40. wNITS
Por iee ey
arme 94%
Tteer-rte tas
tl0e 0 ag SH OD “CRISMID
MOISSINDD SIHINAYYd JO HOSHIGHMAD
ANAQH TFG Ayr
e207 * 40 4¥0 SIMI OtHO ‘THSYND HIYON 5
AND DHL 30 NOSSINAQD INNIS IML 48 CAOddY ROBYINOSHOD ONY IGS 107 40 cYM SIRE
SWOT
“—— SdatexT MOSSAD an
MBN AVION
OO
2 TS MIA ONY ONYH AM 29S QINMSHIH 3AVH | JORUIHIK SSIMHM MT {ZOE
3 NO SIKE ‘O30 Cy 2I¥ J3Hs WML SYM IAS
2H1 JH CNV MAPRTARSH] SNIOTDS JH) NOS 0 FA IMAL JOCTORDON DK “CRA 3AORY ——__—_
JH) OBaddY ATINOSHId ‘UIVIS ONY ALNNDD CNS HOY CWY MI “OMEN ANION ¥ “IM 3090 '
t GO JO 2¥sS.
( 40 alMnag
TUU/ Ie IMs UNOS
JIMS AME 40 IVE 14S IO) SIAL 2d392" ABIWIM OY 0330 ONY 1I¥ 33H) 4ND
38 OL tWNg SIHY JOUTWONN IY ARGH 'NORIIH MMOKS SONY) JHE JO YINMO GINDISUICMN 344
TIRVIAIIOVY
SP-02ax ALieey obour Ay je cog—ge-FozH
DIGS YO "EC OP) 95IDe DAPP SE gRQQGOZOFOLCO FNYy | OADsODA,
BD Dut IC WIOG Sss9T ZIG; Oo Rwaa ‘saIsILG ser Is fY3
FeO] O8ADeUSS SO BLO Bulag “Oo ory GIOVE "H) OM OT LON,
IDT DWVSLRC PAISu.G ObuG .c yu0d Buisg sc ywMoUM DUD Sue IS
ayes suc pbounra io fsunes losiswmig aon wt fe ae BRIEUS
ewNASG vy
oleate
LOS (OFLSATG HLSON 4G...
ry yO™ 32887
G1 S23. dicdde MGA 04
LVId NOILVQIIOSNOOD % LidS LO7
ae cape er ee nm ee
ive | gue sanite
dad SUSE dew
AiSeNE “5 90
veneer if? dae
brs ON So
ANDIMS 4 OOO
“22078 OW “WOLNMMOINI “JOE WOW WHOSSZA AM JD 1538 TL O1 1938402 38 OL sglNe3D |
HOW £0 THe LING STIOKY JIVOVON' GL 02S HY ONY WHORL SHA FOOD Hl OL SUM AR LOK BDZ HLWON “AIS
MYMOHOOD INV 3I¥15 OHO IAL OHS OFINGONESY ONY OIIVINTWD Se FMVS SHE OSI OMY GRNOS IDUYINZANNOT
AB C3INFOAR S¥ WHOHS QyOy HivUO? X INMHELWED 3H} S¥ SAFES SI ONRIE 30 SVE YOISHE Siuvd TWMIDID OMY
132d NI GASSIHeeI Fey NOTIN MMOHS SHONSNMO TY “OSIVAIONE SINIOd 2¥ 135 ¥O ONTOS 3U3M S3dkd YO SNid NOR
TAL UIVATIOW ONY EIIHNOD SS GH! IHL ONY NOIW3H NAOHS SONY) GH) O3Q2AN9S Jar | iv) LxtS ARTHIK |
SSAVTO S.YOASANNS
SOMOIR 529M Adan
NADHS SY Std OMY 50330
StmodaY TAR 8 ANNO? roDeNAD
Bieot ttc]
(eres St WOWS “7:
275 tg VEE OFT
FSOIIS AMY HOS JUL LRRD ONY
BNONTIV MY IME SIONS AGH aie BD ZINIOR? Fi as eIKNO
TUNWNIADD INLOOISY “SIOMABIMNONT “GNOIRY 40 SINGMIS?
802 KRWGS INIGNTAPOM 8D MOUIYOUSTAN OV Sv JURH?
a!
GS - $dt=
25 roy syUfON ~ Wag 2D ID +
payou £0 pirnoy FOR jusWAVER sOPODIEW ©
O210U 6 Puna, 301g 10 wid YON SUNS =
paunsoapy +
abog = by
Dwnian «10h
punng «pug
oan = psn/n
Pann
9193109 =
2Ur7 Arron ©
pyeotues ©
3709/9
WEBER AUTOMOTIVE
PROPERTY TRANSFER
0 125 250 pee
Feet ; wd
1 inch = 125 feet
CITY OF NORTH
PPN 23326063... OLMSTED
BERKSHIRE DR
CITY OF NORTH.OLMSTED ..
<= 28963 TUTOR RD... :
PPN 23326064
OQ
ul
—
=
a3
os
zs
Pa
QO:
2 =
oo
rai
©
>
md
©
29000-29016
LEGEND
City of North Olmsted
Current Property Boundary
© WeberAutomotive (BDW —
"Property Boundary reports
[ Parcels
.06615 Acre
Transfer to Weber i a ae
Automotive 28867-28923
PARK RIDGE DR
---
[2023-94 Contract Sale Weber.pdf]
1
CITY OF NORTH OLMSTED
ORDINANCE NO. 2023 - 94
BY:
Mayor Jones
AN ORDINANCE DIRECTING THAT THE REAL PROPERTY OWNED BY
THE CITY OF NORTH OLMSTED AND KNOWN AS .6615 ACRES, OR
28,816 SQUARE FEET, OF PERMANENT PARCEL NUMBER 233-26-063
WHICH IS PRESENTLY UNDEVELOPED PROPERTY BUT IS NO
LONGER NEEDED FOR MUNICIPAL PURPOSES BE SOLD TO BDW
PROPERTIES, LLC. FURTHER AUTHORIZING THE MAYOR TO
EXECUTE A PURCHASE AND SALE AGREEMENT AND ALL OTHER
DOCUMENTS REQUIRED TO EFFECTUATE SAID SALE.
WHEREAS, the City in 2023 acquired, among other parcels, Permanent Parcel Number
233-26-063 from the North Olmsted Board of Education as part of the sale of the former Forest
School site to the City; and
WHEREAS, the properties acquired by the City from the Board of Education including
PPN 233-26-063 were intended to be redeveloped into tax producing property; and
WHEREAS, Weber Automotive has presented to the City a proposed expansion of its
operations that can utilize the property known as .6615 acres, or 28,816 feet, of PPN 233-26-063
(“Property”) for a tax producing use; and
WHEREAS, the Property is not needed for any municipal purpose; and
WHEREAS, the proposed purchase price for the Property is $25,855.02; and
WHEREAS, it is the desire of this Council to sell the real property known as .6615 acres,
or 28,816 square feet, of PPN 233-26-063 to BDW Properties, LLC upon the terms and
conditions negotiated by the Mayor.
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
NORTH OLMSTED, CUYAHOGA COUNTY, AND STATE OF OHIO:
SECTION 1: That the Mayor be and she is authorized to execute a Purchase and Sale
Agreement with BDW Properties LLC for the sale of real property known as .6615 acres, or
28,816 square feet, of PPN 233-26-063 to BDW Properties, LLC, with such contract in
substantially the form and substance as evidenced in the Agreement attached to this Ordinance as
"Exhibit 1,” with only such changes to said Agreement to be hereinafter made as are not
substantially adverse to the City and which are approved by the Director of Law. The character
of any such changes as not being substantially adverse to the City shall be evidenced
conclusively by the execution of the agreement by the Mayor and the approval of the agreement
by the Director of Law.
2
SECTION 2: That this Ordinance shall take effect and be in force from and after
the earliest period allowed by law as specified in the Charter of the City of North Olmsted.
PASSED: ________________________
First Reading: _______________
Second Reading: _______________
Third Reading: _______________
Committee: __________________
ATTEST:
_____________________________
__________________________
BEATRICE TAYLOR
LOUIS J. BROSSARD
Clerk of Council
President of Council
APPROVED: _____________________
APPROVED AS TO LEGAL FORM:
_______________________________
/s/ Michael R. Gareau, Jr._________
MAYOR NICOLE DAILEY JONES
MICHAEL R. GAREAU, JR.
Director of Law
---
[2023-94 Contract Sale Weber Amended Exhibit 1.pdf]
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into as of
the day of , 2023 (the “Effective Date”), by and between the City of North
Olmsted, Ohio, an Ohio Municipal Corporation (“Seller”), and BDW Properties, LLC, an Ohio
Limited Liability Corporation (“Purchaser”).
RECITALS
WHEREAS, pursuant to the terms of this Agreement, Seller will sell and convey to
Purchaser and Purchaser will purchase and pay for the Property (as defined herein).
NOW, THEREFORE, for valuable consideration, including the purchase price and the
mutual covenants of Purchaser and Seller set forth herein, the parties agree as follows:
1. DESCRIPTION OF PROPERTY
11 Property. Seller shall sell and convey, and Purchaser shall purchase and pay for,
upon the terms and subject to the conditions hereinafter set forth, land containing approximately
6615 .6629 acres or 28,846 28,876 square feet, and more fully described in Exhibit A, attached
hereto and incorporated herein by reference, including the improvements and other buildings
situated thereon with all fixtures and improvements associated therewith (collectively, the
Property”).
2. PURCHASE PRICE
2.1 Purchase Price. Purchaser shall pay to Seller on Closing (as hereinafter defined)
a purchase price (the “Purchase Price”) for the Property which shall be the sum of Twenty Five
Thousand Eight Hundred Fifty Five Dollars ($25,855.00) for the Property; which Purchase Price
shall be payable as follows:
(a) An amount equal to Five Thousand Dollars ($5,000.00) (the “Earnest Money”)
shall be deposited in an escrow account (the “Escrow Account”) with Nova Title
(“Escrow Agent” or “Title Company”) by wire transfer within five (5) days
following the Effective Date.
(b) The balance of the Purchase Price, subject to the prorations and adjustments
described in this Agreement, shall be deposited into the Escrow Account by wire
transfer of Federal funds or official bank or cashier’s check drawn on an
institutional commercial bank or savings and loan association payable to the order
of Escrow Agent at least one business day preceding the Closing Date (as
hereinafter defined).
(c) Purchaser’s failure to timely deposit the Earnest Money or make any other
payments required by the terms of this Agreement shall constitute an immediate
Default by Purchaser of this Agreement, which, if not remedied within two (2)
business days from receipt of notice by Seller of the Default, shall entitle Seller, at
its option, to terminate this Agreement by written notice to Purchaser and to
pursue immediate remedies against Purchaser pursuant to terms of this
Agreement.
3. CONVEYANCE OF TITLE AND OTHER DOCUMENTS
3.1 Property. Seller shall convey, or cause to be conveyed, fee simple insurable title
to the Property to Purchaser by a good and sufficient limited warranty deed (the “Deed”),
reasonably acceptable to Purchaser and Seller, conveying title thereto to Purchaser, free and clear
of liens and encumbrances, except zoning and building ordinances, real estate and all ad valorem
taxes and assessments both general and special not currently due and payable, liens and
encumbrances caused by Purchaser, those liens, claims and encumbrances and matters of record
not objected to by Purchaser within the Inspection Period (as hereinafter defined) or objected to
but subsequently waived by Purchaser, and matters disclosed on the Survey (as hereinafter
defined), all of the foregoing collectively referred to herein as the “Permitted Encumbrances.”
4, TITLE INSURANCE AND SURVEY
4.1 Title Insurance. Within thirty (30) days after the date hereof, Purchaser may
cause the Title Company to examine title to the Property and prepare a written commitment (the
“Title Commitment”) for an owner’s policy of title insurance in standard form insuring title to
the Property to Purchaser in the amount of the Purchase Price (the “Title Policy”).
4.2 Survey. Prior to the Closing Date, Purchaser may cause, at its expense, a survey
of the Property (the “Survey”) to be prepared.
5. CLOSING AND ADJUSTMENTS
5.1 Escrow Agent: Closing Date. The closing of the transaction contemplated hereby
(the “Closing”) shall be effected through an escrow established with the Title Company. All
documents necessary for the completion of this transaction shall be deposited with the Escrow
Agent on or before or such later date as mutually agreeable to the parties
(the “Closing Date”). All funds necessary for completion of the Closing shall be deposited with
the Escrow Agent so as to permit the Closing to occur, and funds to be disbursed from the
escrow to Seller, on the Closing Date. This Agreement, together with the Escrow Agent’s usual
conditions of acceptance, shall serve as escrow instructions; provided, however, that in the event
of any conflict between the provisions of this Agreement and the Escrow Agent’s usual
conditions of acceptance, the provisions of this Agreement shall govern.
5.2 Closing Deliveries.
(a) Seller shall deposit into escrow the following documents and instruments on or
prior to the Closing Date, duly executed and acknowledged where appropriate:
(1) the Deed; (2) evidence of compliance by Seller to the provisions of Section
(b)
5.3
1445 of the Internal Revenue Code of 1986, as amended; (3) such documentation
as is reasonably and customarily required by the Title Company to issue the Title
Policy in the form required by this Agreement; and (4) such other documents as
may be reasonably required to consummate the transaction contemplated hereby.
On or prior to the Closing Date, Purchaser shall deposit into escrow the following,
duly executed and acknowledged where appropriate: (1) the sum required
pursuant to Section 2.1(b), (2) the conveyance fee and transfer tax or declaration
forms required by law, (3) evidence satisfactory to Seller and the Title Company
of Purchaser’s authority with respect to Purchaser’s execution, delivery and
performance of the terms, covenants and conditions of this Agreement, (4) such
documentation as is reasonably and customarily required by the Title Company to
issue the Title Policy in the form required by this Agreement; and (5) such other
documents as may be reasonably required to consummate the transaction
contemplated hereby.
Prorations/Expenses. Provided all documents and funds have been deposited in
escrow with the Escrow Agent or delivered at Closing as required by this Agreement and the
Title Company is in a position upon the filing of the Deed for record to issue the Title Policy as
may be provided for in Section 4.1, the Closing shall be completed as follows after making the
adjustments and prorations required by this Section 5.3:
(a)
(b)
(c)
Seller shall pay:
(4) any costs, expenses and/or prorations specifically to be paid by Seller as
provided herein.
Purchaser shall pay:
(1) the escrow fee, if any;
(11) the cost of recording the Deed;
(iii) the title commitment, premium for the issuance of the Title Policy and any
endorsements thereto, and the cost of all charges and expenses associated
with the issuance of title insurance to any lender to Purchaser; and
(iv) all costs associated with Purchaser’s Inspections (as hereinafter defined)
of the Property; and
(v) any other costs, expenses and/or prorations to be paid by Purchaser as
provided herein.
All real estate taxes and assessments both general and special shall be prorated
between the parties as of the Closing based on the current bill (or, if not available,
the last available tax duplicate) and reflected on a settlement statement prepared
by the Escrow Agent. Such proration shall be final.
(d) The Escrow Agent shall record the Deed in the real estate records of the Fiscal
Officer’s office.
5.4 Possession. Seller shall deliver possession of the Property in its present condition,
subject to normal wear and tea.
5.5 Title Defects. During the Inspection Period (as defined herein), Purchaser shall
have the right to object to any matters set forth in the Title Commitment and the Survey.
Purchaser shall give Seller written notice (the “Objection Notice”) of any such matter set forth in
the Title Commitment or Survey to which Purchaser objects (each a “Title Defect’) prior to the
expiration of the Inspection Period. Any matter not objected to by Purchaser within such
Inspection Period (or which Purchaser waives following the Objection Notice) shall be deemed
to be approved by Purchaser and included as a Permitted Encumbrance. If Purchaser delivers to
Seller an Objection Notice specifying a Title Defect within the Inspection Period, Seller shall,
within ten (10) days after the receipt of the Objection Notice, notify Purchaser in writing (the
“Seller’s Notice”) which of such Title Defects shall be cured by Seller prior to or at Closing;
provided, however that Seller shall only be obligated to cure any such Title Defect which either
was caused by Seller’s actions after execution of this Agreement or is a lien or encumbrance that
can be removed by the payment of a sum certain (unless caused by Purchaser). Within five (5)
days after receipt of the Seller’s Notice, Purchaser, as its sole and exclusive remedy, shall notify
Seller in writing of Purchaser’s election to either (4) accept title to the Property subject to the
Title Defects Seller is not obligated (or has not otherwise elected) to cure, without an abatement
or reduction of the Purchase Price in accordance with the terms of this Agreement, or (ii)
terminate this Agreement. If Purchaser elects to terminate this Agreement, all documents
deposited into escrow shall be returned to the party who delivered or deposited the same, the
Earnest Money shall be paid to Purchaser, and thereupon the parties shall be released from any
further obligations hereunder each to the other, except that Purchaser shall pay all the expenses
of the Escrow Agent and the Title Company, if any. If Purchaser does not elect to terminate, or
fails to make a written election, within the five (5) day period following Seller’s Notice,
Purchaser shall be deemed to have elected to accept title to the Property, subject to all Title
Defects which shall thereafter be deemed Permitted Encumbrances, without an abatement or
reduction of the Purchase Price and the Earnest Money shall become nonrefundable.
6. RISK OF LOSS
6.1 Risk of Loss. Risk of loss to the Property or any part thereof shall remain on
Seller until the Closing.
7. REPRESENTATIONS AND WARRANTIES
7.1 Seller’s Representations. Seller represents, warrants and agrees as follows:
(a) The Property is subject to no options or agreements regarding the transfer of title
to the Property and Seller has received no written notice of any legal or
governmental action, litigation, or pending or threatened claim that would impair
the Property or Seller’s ability to perform the transactions contemplated by this
Agreement.
(b)
7.2
(a)
(b)
Seller has received no notice of taking, condemnation, betterment or assessment,
actual or proposed, with respect to the Property.
Purchaser’s Representations. Purchaser represents, warrants and agrees as
follows:
Purchaser has the lawful right, power, authority and capacity to purchase the
Property in accordance with the terms, provisions and conditions of this
Agreement.
There are no actions, suits or proceedings pending against, by or affecting
Purchaser which question the validity or enforceability of this Agreement or of
any action taken by Purchaser under this Agreement, in any court or before any
governmental authority, domestic or foreign.
Section 7.3. Disclaimer. OTHER THAN TO THE EXTENT OF THE
EXPRESS REPRESENTATIONS SET FORTH IN THIS AGREEMENT OR IN
THE DOCUMENTS EXECUTED AND DELIVERED TO PURCHASER BY
SELLER AT CLOSING (HEREIN CALLED THE “EXPRESS
REPRESENTATIONS”), SELLER DOES NOT, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, AND SELLER SHALL NOT, BY THE
EXECUTION AND DELIVERY OF ANY DOCUMENT OR INSTRUMENT
EXECUTED AND DELIVERED IN CONNECTION WITH CLOSING, MAKE
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF
ANY KIND OR NATURE WHATSOEVER, WITH RESPECT TO THE
PROPERTY, AND ALL SUCH REPRESENTATIONS AND WARRANTIES
ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, OTHER THAN TO THE EXTENT OF THE EXPRESS
REPRESENTATIONS, SELLER MAKES, AND SHALL MAKE, NO
EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AS TO
MATTERS OF TITLE, ZONING, TAX CONSEQUENCES, PHYSICAL OR
ENVIRONMENTAL CONDITION (INCLUDING, WITHOUT LIMITATION,
LAWS, RULES, REGULATIONS, ORDERS AND REQUIREMENTS
PERTAINING TO THE USE, HANDLING, GENERATION, TREATMENT,
STORAGE OR DISPOSAL OF ANY TOXIC OR HAZARDOUS WASTE OR
TOXIC, HAZARDOUS OR REGULATED SUBSTANCE), VALUATION,
GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR
ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE
PROPERTY (HEREINAFTER = COLLECTIVELY CALLED THE
“DISCLAIMED MATTERS”). PURCHASER AGREES THAT, OTHER THAN
TO THE EXTENT OF THE EXPRESS REPRESENTATIONS, WITH
RESPECT TO THE PROPERTY, (A) PURCHASER HAS NOT RELIED UPON
AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF SELLER, (B) WILL CONDUCT
SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY
(INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITION THEREOF) AND RELY UPON SAME
8.1
(a)
(b)
AND, (C) UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMED
MATTERS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S
INSPECTIONS AND INVESTIGATIONS. SUBJECT TO THE EXPRESS
REPRESENTATIONS, SELLER SHALL SELL AND CONVEY TO
PURCHASER, AND PURCHASER SHALL ACCEPT, THE PROPERTY “AS
IS”, “WHERE IS”, AND WITH ALL FAULTS, AND, OTHER THAN THE
EXPRESS REPRESENTATIONS, THERE ARE NO ORAL AGREEMENTS,
WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR
AFFECTING THE PROPERTY BY SELLER OR ANY THIRD PARTY. THE
TERMS AND CONDITIONS OF THIS SECTION SHALL EXPRESSLY
SURVIVE THE CONSUMMATION OF THE PURCHASE AND SALE OF
THE PROPERTY ON THE CLOSING DATE, THE DELIVERY OF THE
DEED AND THE PAYMENT OF THE PURCHASE PRICE, WITHOUT
REGARD TO ANY LIMITATIONS UPON SURVIVAL SET FORTH IN THIS
AGREEMENT.
8. INSPECTION OF PROPERTY
Purchaser’s Inspection.
During the ten (10) day period following the Effective Date (the “Inspection
Period”), Purchaser shall have the right, at Purchaser’s sole cost and expense, to
inspect the Property and to ascertain the condition of title and the physical and
environmental condition of the Property, which may include a Survey, soil
borings or other tests, appraisals, engineering reports, environmental studies and
zoning inspections (“Inspections”). Purchaser agrees that it shall treat all
information and written materials obtained or generated in connection with the
performance of all inspections, tests and environmental studies conducted of the
Property (the “Reports”) as confidential materials and shall not disclose any
portion thereof except to the extent required by law (and if so required, Purchaser
shall simultaneously provide to Seller a copy of any disclosed information), and
only to Purchaser’s attorneys, mortgage lender(s), officers, members and
environmental consultants, and otherwise as permitted by the written consent of
Seller. Purchaser shall give Seller twenty four (24) hour notice prior to
performing any such tests. Any tests shall be conducted in a manner so as not to
damage the Property or disrupt or disturb Seller’s business as conducted on the
Property.
In the event Purchaser determines the Property is not suitable for Purchaser’s
intended use thereof, Purchaser may, by written notice to Seller not later than 5:00
p.m. on the expiration date of the Inspection Period, terminate this Agreement,
whereupon the Earnest Money shall be returned to Purchaser and the parties shall
be released from any further obligations hereunder each to the other, except that
Purchaser shall promptly provide Seller with copies of the Reports, Purchaser
shall pay all the expenses of the Escrow Agent and the Title Company. In the
event that Purchaser fails to deliver to Seller such termination notice prior to the
expiration of the Inspection Period, Purchaser shall be deemed to have waived its
right to terminate based on the condition of the Property or the results of its
Reports, and the parties shall proceed to Closing upon the terms contained herein
without reduction in the Purchase Price and the Earnest Money shall become
nonrefundable.
9. PERMITS AND ZONING
At any time after the Effective Date, Purchaser shall seek and pursue the Permits and
Zoning (both as defined herein).
(A) Using due diligence and best efforts, and at its sole expense, Purchaser
shall seek to secure all permits, authorizations and approvals from federal, state, local or other
governmental agency, authority, entity or otherwise, which has or claims to have jurisdiction
over the Premises and Purchaser’s intended uses thereof which are required or may be desired
for Purchaser’s intended uses (collectively, the “Permits”). Purchaser’s intended uses are the
development of the Property with construction and site improvements, including a new structure,
to facilitate the on-site operations of Weber Automotive, presently located on the adjacent
property known as PPN 233-26-006. See Exhibit B, Proposed Site Development.
(B) If the Premises is not presently zoned, platted, subdivided or split to
permit the transfer, improvement and use of the Premises for Purchaser’s intended uses, separate
from any other property of Seller or any other tax parcel, Purchaser may take all necessary and
proper steps and proceedings to obtain a change of existing zoning, platting, variance in zoning,
subdivision, lot split, consolidation plat, or other order appropriate under the applicable federal,
state and local statutes and ordinances, and all amendments thereto, desired for Purchaser’s
intended uses and improvements for the Premises and the sale of the Premises as a separate and
legal tax parcel (collectively, the “Zoning”).
10. CLOSING CONDITIONS
Section 10.1 Purchaser’s Conditions. Purchaser’s obligations under this Agreement
are conditioned upon the satisfaction of each of the following conditions:
(A) Seller is able and willing to convey title to the Premises to Purchaser as
required by this Agreement, and after the Effective Date, there is no material adverse change to
the Premises.
(B) Seller shall have delivered all items required to be delivered by it under
this Agreement and shall have performed all of its obligations under this Agreement.
(D) The Permits and Zoning are approved by Purchaser, in its sole discretion.
Section 10.2 Seller’s Conditions. Seller’s obligations under this Agreement are
conditioned upon the satisfaction of each of the following conditions: (1) Purchaser applying for
and receiving approval from the City of North Olmsted and Cuyahoga County for a lot split and
consolidation of the portion of property presently located on PPN 233-26-063 (owned by Seller)
and further identified as 28,816- 28,876 square feet, or 6645 .6629 acres of land, to a parcel of
land known as PPN 233-26-006 (owned by Purchaser) (See Exhibit A, Lot Split and
Consolidation Plat); (2) the approval of legislation by the City of North Olmsted changing the
zoning classification of that portion of land now located on PPN 233-26-063 (owned by Seller)
and further identified as 28,846 28,876 square feet, or 6645 .6629 acres of land from “B One
Family Residence” to “B-3 General Business”; (3) Purchaser’s submission of a completed
application to the City of North Olmsted seeking approval of site improvements and
development plan on the portion of property presently located on PPN 233-26-063 (owned by
Seller) and further identified as 28,846 28,876 square feet, or 6645 .6629 acres of land; (4)
Purchaser obtaining from the City of North Olmsted Building and Zoning Board of Appeals final
approval of any and all zoning code variances necessary to undertake the site improvements and
development plan identified in the application to the City of North Olmsted; (5) final approval by
the City of North Olmsted City Council of the development plan submitted by Purchaser; (6)
Final approval by the City of North Olmsted of all required engineering and building plans; and
(7) Purchaser’s application for, and issuance of, all required building permits.
Section 10.3 Failure of Conditions. In the event any of the conditions set forth in
Sections 10.1 or 10.2 are not met, either party may, at its option, waive the condition, or
terminate this Agreement, by written notice to the other party thereupon the parties shall be
released from any further obligations hereunder each to the other. Upon termination of this
Agreement, all funds (including the Earnest Money) deposited by Purchaser shall be promptly
returned to Purchaser. Each party shall pay its own legal, experts’ and consultants’ fees and
expenses.
11. DEFAULT
11.1 Purchaser’s Default. In the event that Seller is ready, willing and able to convey
the Property in accordance with the terms and conditions of this Agreement, and Purchaser has
not terminated this Agreement in accordance with the provisions herein, but Purchaser fails to
consummate this Agreement and take title to the Property (a “Default” by Purchaser), the parties
recognize and agree that the damages Seller will sustain will be difficult if not impossible to
ascertain. Therefore, the parties agree that, in the event of Purchaser’s default, Seller shall be
entitled to the Earnest Money and any interest earned thereon as a genuine pre-estimate of
liquidated damages and not as a penalty for Purchaser’s failure to close. In addition to the
foregoing, Seller shall also be entitled to all other rights and remedies against Purchaser. Upon
any Default by Purchaser, within ten (10) days from written demand by Seller, Purchaser shall, at
its sole cost and expense, return all documents that Seller has provided to Purchaser.
11.2 Seller’s Default. If the purchase and sale of the Property contemplated hereby is
not consummated in accordance with the terms and provisions of this Agreement due to
circumstances or conditions which constitute a default by Seller under this Agreement (a
“Default” by Seiler), the Earnest Money shall be refunded to Purchaser promptly upon request,
and Purchaser, as its sole and exclusive remedies, may either exercise the right to: (i) terminate
this Agreement, in which event all rights and obligations of the parties under this Agreement
shall expire, and this Agreement shall become null and void; or (ii) sue Seller to collect actual
monetary damages; provided, however, that Purchaser shall be precluded from, and hereby
waives all rights to pursue specific performance of this Agreement and in the event that
Purchaser elects to seek to recover damages from Seller on account of any default by Seller
under this Agreement, Seller’s liability to Purchaser for all damages, of any nature whatsoever,
shall not exceed the amount of Earnest Money deposited by Purchaser as of the date Seller
receives notice from Purchaser of a default by Seller, and Purchaser shal! not claim, sue for or
accept an award for more than the maximum amount of damages hereinabove set forth on
account of or in connection with this Agreement or any default by Seller under this Agreement.
In no event shall Purchaser have the right to recover from Seller any special or consequential
damages.
11.3 Effect of Termination. Upon any termination under Section 11.1 or 11.2 the
parties shall have no further rights and obligations under this Agreement other than those rights
and/or obligations that are expressly stated to survive expiration or termination of this
Agreement. The terms of Sections 11.1 and 11.2 of this Agreement shall survive the Closing or
termination of this Agreement.
12. MISCELLANEOUS
12.1 Binding Effect. Upon execution, this Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and the respective successors and assigns of each.
12.2 Brokers. The parties agree and acknowledge that is
acting as Seller’s broker for this transaction and will be compensated by Seller pursuant to a
separate agreement, and is acting as Purchaser’s broker for this
transaction and will be compensated by Purchaser pursuant to a separate agreement. Seller and
Purchaser hereby agree to indemnify the other from and against all loss, cost, damage or expense
arising out of or resulting from the claim of any brokers or agents in connection with this
transaction which claim is based on an action or failure to act on the part of the indemnifying
party.
12.3. Further Assurances. Each party agrees to cooperate with the other, and to execute
and deliver, or cause to be executed and delivered, all such other instruments, and to take all such
other actions as he or it may be reasonably requested to take, from time to time, in order to effect
the provisions and purposes hereof.
12.4 Notice. Any notice or demand required or permitted to be given by or to either of
the parties hereto and every alleged breach of a warranty or representation contained in this
Agreement shall be made in writing and shall be deemed to have been given or delivered, as the
case may be, when delivered by: (a) hand delivery; (b) facsimile; (c) express overnight delivery
service; or (d) certified or registered mail, return receipt requested, and shall be deemed to have
been delivered upon: (i) receipt, if hand delivered or faxed; (11) the next business day, if delivered
by express overnight delivery service; or (ii) the third business day following the day of deposit
of such notice with the United States Postal Service, if sent by certified or registered mail, return
receipt requested. Notices shall be provided to the parties and addresses (or facsimile numbers,
as applicable) specified below:
(a) Communications concerning Seller shall be addressed to:
Michael R. Gareau, Jr., Director of Law, City of North Olmsted, Ohio;
(b) Communications concerning Purchaser shall be addressed to:
12.5 Conflict of Laws. This Agreement shall be governed by the laws of the State of
Ohio.
12.6 No Waiver. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any
other agreement or provision herein contained. No extension of time for performance of any
obligations or acts shall be deemed an extension of the time for performance or any other
obligations or acts. No failure or delay of either party in the exercise of any right given to such
party hereunder shall constitute a waiver hereof unless the time specified herein for exercise of
such right has expired, nor shall any single or partial exercise of any right preclude others or
further exercise thereof or of any other right. The waiver of any breach hereunder shall not be
deemed to be a waiver of any other or any subsequent breach hereof.
12.7. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which, together, shall constitute one and the
same instrument. As used in this Agreement “execution of this Agreement” or “full execution of
this Agreement” means the execution and delivery of this Agreement by Seller and Purchaser.
12.8 Assignment. This Agreement shall not be assigned by Purchaser to any person
entity without the advance written consent of Seller, which consent may be withheld in Seller’s
discretion. At the time of Closing, Purchaser may, with the consent of Seller, request that a
nominee take title to the Property. No consent to any assignment or to a conveyance to a
nominee shall relieve Purchaser of an obligations arising under this Agreement.
12.9 Construing Language. The parties hereby acknowledge that each is a
sophisticated Purchaser or Seller of properties and each is represented by counsel and has had the
opportunity to review this Agreement. The covenants and agreements of the parties contained in
this Agreement shall not be construed in favor of or against either party, but shall be construed as
if both parties drafted this Agreement.
12.10 Severability. If any term, covenant, condition or provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Agreement or the application of
such term, covenant, condition or provision to any other person or any other circumstance (other
than those as to which it shall be invalid or unenforceable) shall not be thereby affected, and each
term, covenant, condition and provision hereof shall remain valid and enforceable to the fullest
extent permitted by law.
12.11 Time of the Essence. Time is of the essence of this Agreement. Anywhere a day
certain is stated for payment or for performance of any obligation, the day certain so stated enters
into and becomes a part of the consideration for this Agreement. If any date set forth in this
Agreement shall fall on, or any time period set forth in this Agreement shall expire on, a day
which is a Saturday, Sunday, federal or state holiday, or other non-business day, such date shall
automatically be extended to, and the expiration of such time period shall automatically be
extended to, the next day which is not a Saturday, Sunday, federal or state holiday or other non-
business day. The final day of any time period under this Agreement or any deadline under this
Agreement shall be the specified day or date, and shall include the period of time through and
including such specified day or date.
12.12 Recitals and Section Headings. The recitals first set forth on page 1 of this
Agreement are incorporated herein as substantive terms of the Agreement. The headings to
sections of this Agreement are set forth only for convenience and are not substantive to the
Agreement.
12.13. Entire Agreement. This Agreement, together with each Exhibit and Schedule
attached hereto and referenced herein, represents the entire Agreement between Seller and
Purchaser with respect to the subject matter hereof and may be amended, modified or changed
only pursuant to a written instrument executed on behalf of both Purchaser and Seller. This
Agreement shall not be recorded by either party.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the
Effective Date.
SELLER:
By:
Name:
Title:
PURCHASER:
By:
Name:
Title:
EXHIBIT A
Description Of Property
22999 Forbes Road, Suite B
Creative Engineers. Intelligent Solutio
CHAGRIN VALL
ENGINEERING, L
Phone 440.439.1999
Cleveland, Ohio 44146-5667
Fax 440.439.1969
www.cvelimited.com
EXHIBIT A
5420
28867-28923
5650
28800
28880
28900
28700
29000-29016
5462
5448
5434
28755
5528
5496
5512
5476
28711
28787
28813-21
LORAIN RD
BERKSHIRE DR
PARK RIDGE DR
WEBER AUTOMOTIVE
28820 LORAIN RD
PPN 23326006
CITY OF NORTH OLMSTED
28963 TUTOR RD
PPN 23326064
NORTH OLMSTED CITY SCHOOL DISTRICT
PPN 23326063
CITY OF NORTH OLMSTED
PPN 23326065
250'
O
0
125
250
Feet
1 inch = 125 feet
WEBER AUTOMOTIVE
PROPERTY AQUISITION
PropertyAquisition
North Olmsted City School District
Property Boundary
Weber Automotive
Property Boundary
0.6629 Acre
(28,876 S.F.) Transfer
Parcels
LEGEND
&'-o"
| | '_0"
PREFIN. RIBBED
METAL SIDING BY
P.E.M.B. MANUF.
PREFIN. EAVE
RAKE TRIM BY
P.E.MB. MANUF.
FUTURE
CEILING
EAVE HT.
|
ALUM. STORE-
FRONT WINDOW
SYSTEM
MEZZ. FLR.
CLEAR HT.
“kK
CEILING
8'-8"
4"H. SMOOTH-
FACE C.MU.
FIN. FLR.
*
8"H. SPLIT-
FACE C.MU.
ALUM. STOREFRONT
ENTRANCE SYSTEM
J
PRELIMINARY SOUTH ELEVATION
SCALE: 1/8" = |'-O"
PREFIN. ALUM.
COMPOSITE METAL
PANEL SYSTEM
FULL VIEW ALUM.
OVERHEAD DOOR
PREFIN. RIBBED
METAL SIDING BY
P.E.M.B. MANUF.
18'-O"
2\'-4"
EXHIBIT B
401 FRONT STREET
BEREA, OHIO 44017
PHONE: 440.835.3957
mail@dscarchitects.com
DATE:
DSCA PROJECT NO.
---
[2023-94 Contract Sale Weber Amended.pdf]
1
CITY OF NORTH OLMSTED
ORDINANCE NO. 2023 - 94
BY:
Mayor Jones
AN ORDINANCE DIRECTING THAT THE REAL PROPERTY OWNED BY
THE CITY OF NORTH OLMSTED AND KNOWN AS .6615 .6629 ACRES,
OR 28,816 28,876 SQUARE FEET, OF PERMANENT PARCEL NUMBER
233-26-063 WHICH IS PRESENTLY UNDEVELOPED PROPERTY BUT IS
NO LONGER NEEDED FOR MUNICIPAL PURPOSES BE SOLD TO BDW
PROPERTIES, LLC. FURTHER AUTHORIZING THE MAYOR TO
EXECUTE A PURCHASE AND SALE AGREEMENT AND ALL OTHER
DOCUMENTS REQUIRED TO EFFECTUATE SAID SALE, AS AMENDED.
WHEREAS, the City in 2023 acquired, among other parcels, Permanent Parcel Number
233-26-063 from the North Olmsted Board of Education as part of the sale of the former Forest
School site to the City; and
WHEREAS, the properties acquired by the City from the Board of Education including
PPN 233-26-063 were intended to be redeveloped into tax producing property; and
WHEREAS, Weber Automotive has presented to the City a proposed expansion of its
operations that can utilize the property known as .6615 .6629 acres, or 28,816 28,876 square
feet, of PPN 233-26-063 (“Property”) for a tax producing use; and
WHEREAS, the Property is not needed for any municipal purpose; and
WHEREAS, the proposed purchase price for the Property is $25,855.02; and
WHEREAS, it is the desire of this Council to sell the real property known as .6615 .6629
acres, or 28,816 28,876 square feet, of PPN 233-26-063 to BDW Properties, LLC upon the terms
and conditions negotiated by the Mayor.
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
NORTH OLMSTED, CUYAHOGA COUNTY, AND STATE OF OHIO:
SECTION 1: That the Mayor be and she is authorized to execute a Purchase and Sale
Agreement with BDW Properties LLC for the sale of real property known as .6615 .6629 acres,
or 28,816 28,876 square feet, of PPN 233-26-063 to BDW Properties, LLC, with such contract in
substantially the form and substance as evidenced in the Agreement attached to this Ordinance as
"Exhibit 1,” with only such changes to said Agreement to be hereinafter made as are not
substantially adverse to the City and which are approved by the Director of Law. The character
of any such changes as not being substantially adverse to the City shall be evidenced
conclusively by the execution of the agreement by the Mayor and the approval of the agreement
by the Director of Law.
2
SECTION 2: That this Ordinance shall take effect and be in force from and after
the earliest period allowed by law as specified in the Charter of the City of North Olmsted.
PASSED: ________________________
First Reading: _______________
Second Reading: _______________
Third Reading: _______________
Committee: __________________
ATTEST:
_____________________________
__________________________
BEATRICE TAYLOR
LOUIS J. BROSSARD
Clerk of Council
President of Council
APPROVED: _____________________
APPROVED AS TO LEGAL FORM:
_______________________________
/s/ Michael R. Gareau, Jr._________
MAYOR NICOLE DAILEY JONES
MICHAEL R. GAREAU, JR.
Director of Law