08-11-2004 Packet REQUEST FOR A SPECIAL MEETING
OF THE BOARD OF SUPERVISORS OF CHESTERFIELD COUNTY
TO: LISA H. ELKO, CLERK TO THE BOARD OF SUPERVISORS
We, ~'F , of ~/~,C~/~//~,~ Magisterial
District, and
Y/~~ , of ~_?~ j Magisterial
District, pursuant to Section 15.2-1417 and 15.2-1418 of the Code of Virginia,
1950, as amended, hereby request a special meeting of the Board of Supervisors be
held at the Public Meeting Room in the Chesterfield Administration Building
located at 100311ronbridge ~oad on Wednesday, August 11, 2004 at 1:00 p.m. This
is a special meeting for the purpose of considering the purchase of Cloverleaf
Mall.
TAKE NOTICE
TAKE NOTICE that pursuant to Section 15.2-1418 of the Code of
Virginia, 1950, as amended, two members of the Board of Supervisors have
requested that a special meeting of the Board of Supervisors be held at the
Public Meeting Room in the Chesterfield Administration Building located at
100311ronbridge Road on Wednesday, August 11, 2004 at 1:00 p.m.. This is a
special meeting for the purpose of considering the purchase of Cloverleaf
Mall.
Teste'
Lisa Elko, Clerk to the Board
of Supervisors
I, ~-u~)c~,~ ~'~-kkt'~ ,~f~ertify that I have received a copy
of this notice this th day of August 2004, and waive any and all
further notice requirements of Section 15.2-1418 of the Code of
Virginia.
Supervisor, ~k~--~c& District
TAKE NOTICE
TAKE NOTICE that pursuant to Section 15.2-1418 of the Code of
Virginia, 1950, as amended, two members of the Board of Supervisors have
requested that a special meeting of the Board of Supervisors be held at the
Public Meeting Room in the Chesterfield Administration Building located at
100311ronbridge Road on Wednesday, August 11, 2004 at 1:00 p.m.. This is a
special meeting for the purpose of considering the purchase of Cloverleaf
Mall.
Teste:
Lisa Elko, Clerk to the Board
of Supervisors
· ' ~ certify that I have received a copy
of this notice this (o th day of August 2004, and waive any and all
further notice requirements of Section 15.2-1418 of the Code of
Virginia. ~.~. ~~~ ~
Supervisor,~ .~, Distri ct
TAKE NOTICE
TAKE NOTICE that pursuant to Section 15.2-1418 of the Code of
Virginia, 1950, as amended, two members of the Board of Supervisors have
requested that a special meeting of the Board of Supervisors be held at the
Public Meeting Room in the Chesterfield Administration Building located at
100311ronbridge Road on Wednesday, August 11, 2004 at 1:00 p.m.. This is a
special meeting for the purpose of considering the purchase of Cloverleaf
Mall.
Teste:
Lisa Elko, C~ler~ to the Board
of Supervisors
I, ~-~Zz~ ~2 f~ , certify that I have received a copy
of this notice this ~ th day of August 2004, and waive any and all
further notice requirements of Section 15.2-1418 of the Code of
Virginia.
Supervisor, /~/~z~z~-, District
TAKE NOTICE
TAKE NOTICE that pursuant to Section 15.2-1418 of the Code of
Virginia, 1950, as amended, two members of the Board of Supervisors have
requested that a special meeting of the Board of Supervisors be held at the
Public Meeting Room in the Chesterfield Administration Building located at
100311ronbridge Road on Wednesday, August 11, 2004 at 1:00 p.m.. This is a
special meeting for the purpose of considering the purchase of Cloverleaf
Mall.
Teste:
Lisa Elko, Clerk to the Board
of Supervisors
certify that I have received a copy
~ '
of this notice this ~ th day of August 2004, and waive any and all
further notice requirements of Section 15.2-1418 of the Code of
Virginia. -~~'~District
TAKE NOTICE
TAKE NOTICE that pursuant to Section 15.2-1418 of the Code of
~irginia, 1950, as amended, two members of the Board of Supervisors have
requested that a special meeting of the Board of Supervisors be held at the
Public Meeting Room in the Chesterfield Administration Building located at
100311ronbridge Road on Wednesday, August 11, 2004 at 1:00 p.m.. This is a
special meeting for the purpose of considering the purchase of Cloverleaf
Mall.
Teste'
Lisa Elko, Clerk to the Board
of Supervisors
of this notice this~h day of August 2004, and waive any and all
further notice requirements of Section 15.2-1418 of the Code of
Virginia.
Supervisor, ~-~~ District
TAKE NOTICE
TAKE NOTICE that pursuant to Section 15.2-1418 of the Code of Virginia,
1950, as amended, two members of the Board of Supervisors have requested that a
special meeting of the Board of Supervisors be held at the Public Meeting Room in
the Chesterfield Administration Building located at 10031 Ironbridge Road on
Wednesday, August 11, 2004 at l:00 p.m. This is a special meeting for the
purpose of considering the purchase of Cloverleaf Mall.
Teste'
Lisa Elko, Clerk to the Board
of Supervisors
Ue ,~ L.. ~X.~ , certify that I have received a copy of this
notice this 10 th day of August 2004, and waive any and all further notice
requirements of Section 15.2-1418 of the Code of Virginia.
Steven L. Micas, County Attorney
CHESTERFIELD COUNTY
BOARD OF SUPERVISORS
AGENDA
Page I of 1
Meetin~l Date: August 11, 2004
Item Number: 1.
Subiect:
Closed Session
County Administrator's Comments:
County Administrator:
Board Action Requested:
Summary of Information:
Closed session pursuant to § 2.2-3711(A) (3), Code of Virqinia, 1950, as
amended, to discuss the acquisition of real estate for a public purpose where
discussion in an open meeting would adversely affect the bargaining position
of the public body.
Preparer:
Steven L. Micas
Title: County Attorney
2700(05) :66362.1
Attachments:
~-] Yes
No
CHESTERFIELD COUNTY
BOARD OF SUPERVISORS
AGENDA
Page I of 2
Meetin~l Date: August 11, 2004
Item Number:
Subject:
Purchase of Cloverleaf Mall and Related Parcels by the Chesterfield County
Industrial Development Authority
County Administrator's Comments:
County Administrator:
Board Action Requested:
(1) Approve the terms of the real estate contract for the purchase of a
portion of the property at Cloverleaf Mall by the Chesterfield County
Industrial Development Authority.
(2) Transfer $250,000 from the Reserve for Future Capital Projects account
to the Industrial Development Authority of Chesterfield County to finance
payment of a nonrefundable deposit to accompany the real estate purchase
contract for the acquisition of a portion of the property at Cloverleaf Mall.
Summary of Information:
The property, which is the subject of the purchase contract is the mall
buildings (with the exception of Sears and Tire America) and approximately 25
acres of real property at or near the mall. The purchase will not include
the Sears and Tire America buildings or approximately 15 acres of land under
and adjacent to those buildings. The real estate under the mall is owned by
a family trust and is not being acquired through this purchase.
The property identified in the contract is subject to a ground lease, which
requires an annual payment to the landowners of approximately $330,000. Some
of the mall buildings are rented and the purchase is subject to the rights of
the tenants in their leases, the majority of which are believed to be short
Preparer: Steven L. Micas
Attachments:
Yes [---] No
Title: County Attorney
2705(23) :66361.1
CHESTERFIELD COUNTY
BOARD OF SUPERVISORS
AGENDA
Page 2 of 2
term. Currently, there is a management company handling the rents and
tenants for the mall.
Once the purchase contract is accepted by the Seller, the nonrefundable
deposit will be paid. Thereafter, Staff will engage in a comprehensive
review of documents, data and environmental conditions at the site to
determine if it is appropriate to purchase it and if it meets all of the
standards of the County site analysis team. If the purchase of the property
is consummated, the deposit will be credited toward the payment price.
Payment of the remainder of the purchase price is contingent on the Board's
appropriation of the funds, which would be considered after the Staff's
review and analysis. If, for any reason, the Board does not later
appropriate sufficient funds permitting the Industrial Development Authority
to purchase the property, then the $250,000 deposit will be forfeited.
The terms of the real estate contract have been reviewed by the County
Attorney's office and counsel for the seller. Payment of the $250,000
deposit is subject to the seller's accepting the purchase offer and signing
the contract.
The purchase of this property is being considered for economic development
and revitalization of the Cloverleaf Mall area.
2705(23):66361.1
CONTRACT OF SALE
THIS CONTRACT OF SALE (hereinafter referred to as "Contract") is hereby entered into as
of this 10th day of August, 2004 (the "Effective Date"), by and between the Industrial Development
Authority for the County of Chesterfield, Virginia, a political subdivision of the Commonwealth of
Virginia (hereinafter referred to as the "Buyer") and Cloverleaf Properties, Inc.. a Delaware
corporation (hereinafter referred to as the "Seller").
RECITALS:
R-1. Apollo Zamias Limited Partnership ("Apollo") was the successor in interest and
tenant under that certain Ground Lease Agreement originally entered into betxveen Millmar
Partnership, L.P., as ground lessor, and Leonard L. Farber Company, Inc., as tenant, dated January
18, 1966 (as amended, the "Lease") for the lease of certain real property consisting of approximately
43.11 acres of land and was the fee simple owner of approximately 21.245 acres of land, all in
Chesterfield County, Virginia (such leasehold and fee simple interests are hereinafter collectively,
the "Property") upon which certain improvements are constructed consisting of a regional shopping
mall known as Cloverleaf Mall, excluding, however, that portion of the mall fbrmerly owned by
Sears (the "Improvements"). The Property and Improvements are further identified and described in
the Seller's title insurance policy fbr the Property which must be provided by Seller and attached
hereto prior to execution of this Contract.
R-2. On May 11, 2001, Apollo and certain related entities filed voluntary petitions for
relief in the United States Bankruptcy Court for the Western District of Pennsylvania (the "Court")
pursuant to the provisions of Chapter 11 of Title 11 of the U.S. Code (11 U.S.C. Section 101, et seq)
whereupon Apollo's interest in the Lease, the Property and the Improvements became vested in the
Bankruptcy Estate of Apollo.
R-3. By a certain Amended Stipulation and Order Authorizing Post-Petition Financing
entered into between CIBC, Inc., an affiliate of Seller, and Apollo and approved by the Court on July
12, 2001, the parties agreed, inter a/ia, that Apollo would, as the essence of its Plan of
Reorganization, assume and assign its interest in the Lease and sell the Improvements thereon to a
party approved and confirmed by the Court.
R-4. Pursuant to Paragraph 37 of that certain Order of Court dated and executed August 1,
2002, as amended by Clarifying Order (collectively, the "Order"), the Court authorized, approved
and confirmed the assignment of Apollo's interest in the Lease and sale of the Property and
Improvements to CIBC, Inc. or its assignee.
R-5. By Assignment of Rights dated as of October 30, 2002, CIBC, Inc. transferred and
assigned to Seller its rights under and pursuant to the Order.
R-6. Seller acquired the Property and the Improvements by Special Warranty Deed from
Apollo and Assignment and Assumption of Ground Lease between Apollo and Seller, each dated as
of October 30, 2002.
R-7. Seller desires to sell, assign, transfer and convey all of its leasehold and fee interest
in and to the Property and Improvements to Buyer, together with all of Seller's rights, easements and
appurtenances thereto, and Buyer desires to purchase and assume such rights from Seller in
accordance with the terms and conditions hereinafter set tbrth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual rights and obligations hereunder, Buyer
hereby agrees to buy and assume and Seller hereby agrees to transfer, convey, assign and sell its
rights in and to the Property and Improvements thereon (hereinafter collectively, the ;~Mall Assets")
upon the terms and conditions hereinafter set forth.
1. Deposit. Upon acceptance of this Contract by Seller, Buyer shall deliver to Lawyers
Title Insurance Corporation, Richmond, Virginia ("Escrow Agent") a non-refundable deposit (the
"Deposit") in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) in the form of
Buyer's certified or cashiers' check or wire transfer of funds. All interest earned on the Deposit shall
be added to and become part of the Deposit. BUYER AND SELLER HEREBY ACKNOWLEDGE
AND AGREE THAT THE AMOUNT OF THE DEPOSIT IS THE PARTIES' BEST AND MOST
ACCURATE ESTIMATE OF THE COSTS SELLER WOULD SUFFER 1N THE EVENT BUYER
FAILS TO PURCHASE THE PROPERTY PURSUANT TO THIS CONTRACT, AND THAT
SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE
DATE OF THIS CONTRACT. BUYER AND SELLER AGREE THAT SELLER'S RIGHT TO
RETAIN THE DEPOSIT SHALL BE THE SOLE REMEDY OF SELLER FOR BUYER'S
FAILURE TO PURCHASE THE PROPERTY.
2. Purchase Price; Payment. The purchase price fbr the Mall Assets (the "Purchase
Price") shall be Six Million One Hundred Thousand One Dollars ($6,100,001.00). The entire
Purchase Price shall be payable by Buyer in cash or by certified or bank cashier's check or wire
transfer of funds at closing. The Deposit shall be applied to the Purchase Price at closing. The
Purchase Price will be allocated among land, buildings, equipment or other categories, as applicable,
as designated by Buyer, subject to Seller's reasonable reviexv and approval of the allocation prior to
closing.
3. Closing. Closing under the terms of this Contract shall be held on a date mutually
agreed by the parties but in all events on or betbre the date which is sixty (60) days after the
Effective Date. Deposit with the Escrow Agent of the cash required at closing, and such other papers
as are required to consummate closing hereunder shall be considered good and sufficient tender of
performance of the terms of this Contract.
4. Information. Seller agrees that it shall cooperate and shall cause its agents to
cooperate in providing copies of all documents and information in its possession with respect to the
Mall Assets requested by Buyer, provided that all such information shall be provided on an AS IS,
WITH ALL FAULTS, WITHOUT REPRESENTATIONS OR WARRANTIES basis.
5. Conveyance.
a. The Mall Assets will be conveyed by Special Warranty Deed and by Assignment and
Assumption of Ground Lease and such other documents reasonably requested by Buyer's title
company including but not limited to the Standard Virginia Owner's and Mechanic's Lien Affidavit
and other such tax affidavits and other documents customarily provided by sellers in the
Commonwealth of Virginia. Except as expressly set tbrth in this Contract, the sale is and will be
of tenants.
6.
applicable
made on an AS IS BAS[S, WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR OTHERWISE,
including, but not limited to, any representation or warranty concerning the physical condition of the
Improvements, the compliance of the Mall Assets with applicable laws and regulations (including,
but not limited to, zoning and building codes or the status of development or use rights respecting the
Property), the financial condition of the Mall Assets or any other representation or warranty
respecting any income, expenses, charges, liens or encumbrances, rights or claims on, affecting or
pertaining to the Property, the Improvements or any part thereof.
Possession of the Mall Assets will be given to Buyer at Closing, subject to the rights
Expenses. The Seller's attorneys' fees will be paid by Seller, and Buyer shall pay all
expenses of examination of title, survey (if any), all reasonable fees, charges, and
expenses of the Escrow Agent, the title insurance premium, if any, Buyer's attorneys' fees, all
recording fees other than the grantor's tax, which shall be paid by Seller, and other closing expenses.
Real estate taxes, rents and utilities will be prorated to the date of closing and paid by Buyer
thereafter. 'Fo the extent necessary, such pro rations will be calculated or reconciled on a post-
closing basis, and Buyer and Seller agree to make appropriate adjustments based upon the actual
charges, once known.
7. Title. Seller must provide and incorporate into this Contract by reference a copy of
Seller's title insurance policy for the Property (the "Title Policy"), together with a copy of the
Amendment to Operating Agreement ("Amendment") recorded after issuance of the Title Policy.
8. Seller's Warranties. Seller has not received notice of and is not aware of any pending
or threatened actions, suits or proceedings against or affecting the Mall Assets or any portion thereo/
or relating to or arising out of the ownership, operation, management, use or maintenance of the Mall
Assets. In addition, the Seller is not aware of any environmental or title constraints that would limit
or render infeasible the Buyer's anticipated use of the Mall Assets.
9. Default; Remedies. In the event that Buyer fails to close pursuant to the temps hereof,
Seller shall be entitled to terminate this Contract by delivery of written notice to Buyer and Escrow
Agent and thereupon the Deposit shall be disbursed by Escrow Agent to Seller as Seller's sole and
exclusive remedy hereunder, the parties agreeing that the Deposit constitutes agreed-upon liquidated
damages and not a penalty. In the event that Seller fails to close pursuant to the terms hereof in
breach of the terms or' this Contract, Buyer shall be entitled to a return of the Deposit or enforce
specific performance as its sole and exclusive remedy hereunder.
10. Parties Bound. Subject to Paragraph 16 below, this Contract shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and assigns.
11. Commission. Seller and Buyer warrant to each other that they have no obligation to
any agent or broker with respect to the transaction contemplated by this Contract. In the event that
any claim for commission or finder's fee is brought by any person or entity whatsoever as a
consequence of the transaction contemplated hereby and as a result of any action or omission of
Buyer or Seller, then the party against whom such claim is made, shall indemnify, defend and hold
harmless the other party against any loss, cost, or expense of any nature, including, but not limited to,
court costs and reasonable attorneys' fees, arising as a consequence of such claim for the commission
or fee.
12. Applicable Law. This Contract shall be construed in accordance with the laws of the
Commonwealth of Virginia, without reference to its conflicts of laws principles.
13. Total Agreement. This Contract (including all Exhibits hereto) contains the full and
final agreement between the parties hereto with respect to the sale and purchase of the Mall Assets.
Buyer and Seller shall not be bound by any terms, conditions, statements, warranties, or
representations, oral or written, not contained herein. No change or modification of this Contract
shall be valid unless the same is in writing and is signed by the parties hereto. No waiver of any of
the provisions of this Contract shall be valid unless the same is in writing and is signed by the party
against which it is sought to be enforced.
14. Buyer's Obligation. The Buyer's Obligation to pay the costs of performing its
obligation to purchase in accordance with this Contract shall be contingent upon the Board of
Supervisors of the County of Chesterfield, Virginia appropriating the necessary funds. The Board of
Supervisors may decline to make such appropriations for any reason or no reason.
15. Notices. All notices, demands, or other communications that may be necessary or
proper hereunder shall be deemed duly given if personally delivered upon delivery (or at such time as
delivery is not accepted by the intended recipient), when deposited with Federal Express or other
reputable overnight delivery service, when deposited in the United States mail, postage prepaid, first
class, registered or certified, return receipt requested, or when sent by facsimile with a confirmation
of receipt, addressed respectively as follows:
with a copy to:
and a copy to:
Buyer:
Chairman
Chesterfield IDA
c/o Chesterfield County Department of
Economic Development
P. O. Box 760
Chesterfield, Virginia 23832
Fax Number: (804) 796-3638
County of Chesterfield
Attention: Lane B. Ramsey
P. O. Box 40
Chesterfield, Virginia 23832
Fax Number: (804) 71%6297
Director of Economic Development
P. O. Box 760
Chesterfield, Virginia 23832
Fax Number: (804) 796-3638
Seller:
with a copy to:
and a copy to:
Escrow Agent:
Cloverleaf Properties, Inc.
425 Lexington Avenue, 8th Floor
New York, New York 10017
Attention: Jacqueline Stewart
Fax Number: 212 856-4135
CIBC World Markets Corp.
200 West Madison Street
Suite 2610
Chicago, Illinois 60606
Attention: Keith Oglesbee
Fax Number: 312 855-3235
Reed Smith
3110 Fairview Park Drive, Suite 1400
Falls Church, Virginia 22042
Attention: Carol C. Honigberg
Fax Number: 703 641-4340
Lawyers Title Insurance Corporation
707 East Main Street, Suite 400
Richmond, Virginia 23219
Attention: James L. Polley
Brian L. Carr
Fax Number: 804 649-3735
Any party hereto may change its address for notice purposes hereunder by delivering
written notice thereof to the other parties in accordance with the foregoing provisions.
16. Assignment. Buyer may not assign this Contract in whole or in part without the
prior written consent of Seller, which consent shall not be unreasonably withheld or delayed,
provided, however, that Buyer may assign its interest hereunder to the County of Chesterfield,
Virginia without needing Seller's consent.
17. Time. Time is of the essence with respect to all matters set forth in this Contract.
18. Risk of Loss. The risk of loss for damage to the Mall Assets remains with Seller as
owner until the closing hereunder, provided, however, that in the event of any condemnation or
casualty Buyer shall have the option to take an assignment of Seller's condemnation or insurance
proceeds and proceed to closing with no reduction in the Purchase Price or to terminate this Contract
and in the event of any such termination the Deposit shall be returned to the Buyer and the parties
will have no further rights or obligations hereunder.
19. Authority. The parties signing this Contract on behalf of Buyer and Seller are
duly authorized to sign this Contract and this Contract, upon execution by the parties, shall be
fully binding and enforceable against the Buyer and Seller according to its terms.
20. Consent to Jurisdiction and Venue. Buyer and Seller agree and consent to have
any issue relating to this Contract brought in the United States District Court for the Eastern
District of Virginia, Richmond Division.
21. Headings. The paragraph headings contained in this Contract are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Contract.
22. Weekends and Holidays. Any date specified in this Contract for the performance
of an obligation or expiration of a time period which is a Saturday, Sunday or a legal holiday
shall be extended to the first regular business day after such date which is not a Saturday, Sunday
or a legal holiday.
23. Counterpart Originals. This Contract may be executed in multiple original
counterparts, each of which shall be an original, but all of which shall constitute one and the
same Contract.
24. Escrow Agent. The parties acknowledge that Escrow Agent will join in this
Contract for the limited purpose of acknowledging and agreeing to the provisions applicable to
its role as Escrow Agent. The Escrow Agent may from time to time invest the Deposit in a Bank
of America Money Market Account for the benefit of the Buyer or such other account as Buyer
may direct in writing. The Escrow Agent shall not be responsible for any loss, diminution in
value or failure to achieve a greater profit as a result of such investments. The Seller and Buyer
shall indemnify, save, defend, keep and hold harmless the Escrow Agent from any and all loss,
damage, cost, charge, liability, cost of litigation, or other expense, including without limitation
attorney's fees and court costs, arising out of its obligations and duties, including but not limited
to (i) disputes arising or concerning amounts of money to be paid, (ii) funds available for such
payments, (iii) persons to whom payments should be made or (iv) any delay in the electronic wire
transfer of funds, as Escrow Agent, unless Escroxv Agent's actions constitute gross negligence or
willful misconduct.
25. Recitals Incorporated. The recitals to this Contract are hereby incorporated and
made a part hereof, as if set forth in full.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have executed this Contract or caused this
Contract to be executed effective as of the date inserted on page 1 of this Contract.
INDUSTRIAL DEVELOPMENT AUTHORITY
By:.
Date
James A. Spencer
Chairman
Approved as to Form:
Tara A. McGee
Assistant County Attorney
SELLER:
Cloverleaf Properties, Inc.
Date
By:
Title: Jacqueline Stewart, President
ESCROW AGENT:
Lawyers Title Insurance Corporation
By:
Date Title:
Exhibit A
Seller's Title Insurance Policy issued by Commonwealth Land Title Insurance Company,
dated November 7, 2002, together with a copy of the recorded Amendment to Operating
Agreement
CHESTERFIELD COUNTY
BOARD OF SUPERVISORS Page I of 1
AGENDA
Meetin~l Date: August 11, 2004 Item Number: 2.
Subject:
Adjournment and Notice of Next Scheduled Meeting of the Board
of Supervisors
County Administrator's Comments:
County Administrator: ~
Board Action Requested:
Summary of Information:
Motion of adjournment and notice of a regularly scheduled meeting to be
held on August 25, 2004 at 3:00 p.m.
Preparer: Lisa H. Elko Title: Clerkto the Board
Attachments: --1 Yes l No #