HomeMy WebLinkAboutPre AgreementPURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered
into this day of , 2007 by and between the City of Miami, a municipal .
corporation of the State of Florida, with offices at 444 S.W. 2"a Avenue, Miami, Florida 33130
(the "Seller"), and Madison Housing, Ltd., a Florida limited partnership, with offices at c/o The
Gatehouse Group, Inc., Cabot Business Park, 120 Forbes Boulevard, Mansfield, MA 02048 (the
"Purchaser"). (The Seller and the Purchaser are hereinafter jointly referred to as the "Parties"
and individually may be referred to as a "Party".)
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1.. The Seller has agreed to convey the Property (as herein described) to the
Purchaser
pursuant to Resolution No., duly adopted by the Miami City Commission
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, 2007, for the development of affordable rental and/or homeownership units (the
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2. The Purchaser desires to acquire the Property from the Seller in accordance with
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s and conditions of this Agreement.
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Now, therefore, the Parties hereto hereby agree that Seller shall sell and the Purchaser
3urchase the following property upon the following terms and conditions:
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1. DESCRIPTION OF PROPERTY
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a) Legal Description
Tracts B and D, New Hope Overtown, according to the Plat
thereof, as recorded in Plat Book 157, at Page 14, of the
Public Records of Miami -Dade County, Florida,
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hereinafter referred to as the "Property".
The City agrees that, prior to the conveyance of the Property to Purchaser, it shall
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remove all buildings, clear the site and release all liens, to the extent permitted by
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Section 2-817(h) of the City Code, that currently encumber the Property.
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2. PURCHASE PRICE AND PAYMENT
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The Purchaser agrees to pay and the Seller agrees to accept the sum of Ten and
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No/100 Dollars ($10.00) (the Price") as the Purchase Price for the
Property. The Purchase Price shall be payable as follows. At the Closing, the
Purchase Price, increased or decreased by adjustments, credits, proration, and
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expenses as set forth in Section 13 and/or any other provision of this Agreement,
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shall be paid by the Purchaser to the Seller in the form of cashier's check,
certified check or wire transfer. Further, the Purchaser agrees to assume certain
existing debt in the approximate amount of $1,237,875.00, encumbering the
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Property, payable to the Seller, upon terms and conditions reasonably acceptable
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to both Purchaser and Seller, including the following: (1) that portion of the debt
allocate& to the rental units developed on the Property shall be non-interest
bearing and have no principal amortization. If the rental units in the Project are
kept affordable for a minimum of thirty (30) years in accordance with
requirements to be set forth in the Closing Documents, that portion of the debt
shall be forgiven, and, (2) that portion of the debt allocated to the homeownership
units developed on the Property shall be repaid to the Seller, pro rata, upon the
sale of each of the homeownership units to an affordable homebuyer. The debt
assumed by the Purchaser shall be subordinated to a third lien position to other
financing reasonably required by the Purchaser in developing its contemplated
improvements on the Property.
3. ENVIRONMENTAL MATTERS
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A. Definitions.
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For purposes of this Agreement:
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The term "Hazardous Materials" shall mean and include without limitation, any
"hazardous
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substance, which is or contains: (A) any substance" as now or
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hereafter defined in the Comprehensive Environmental Response, Compensation,
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and Liability Act of 1980, as amended (42 U.S.C., Section 9601 et seq.,
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"CERCLA") or any regulations promulgated under or pursuant to CERCLA; (B)
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any "hazardous waste" as now or hereafter defined in the Resource Conservation
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and Recovery Act (42 U.S.C., Section 6901 et seq.); (C) any substance regulated
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by the Toxic Substances Control Act (15 U.S.C., Section 2601 et. seq.); (D)
gasoline, diesel fuel, or other petroleum hydrocarbons; (E) asbestos and asbestos
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containing materials, in any form, whether friable or non -friable; (F)
polychlorinated biphenyls; and (G) any additional substance or material which: (i)
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is now or hereafter classified or considered to be hazardous or toxic under any of
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the Environmental Requirements as hereinafter defined; (ii) causes or threatens to
cause a nuisance on the Property or adjacent property or poses or threatens to pose
a hazard to the health or safety of persons on the Property or adjacent property; or
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(iii) would constitute a trespass if it emanated or migrated from the Property.
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The term "Environmental Requirements" shall mean all .laws, ordinances, statutes,
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codes, rules, regulations, agreements, judgments, orders and decrees, now or
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hereafter enacted, promulgated, or amended of the United States, the State of
Florida, Miami -Dade County, the City of Miami, or any other political
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subdivision, agency or instrumentality exercising jurisdiction over the Seller, the
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Purchaser, the Property, or the use of the Property, relating to pollution, the
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protection or regulation of human health, natural resources, or the environment, or
the emission, discharge, release or threatened release of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or waste or Hazardous
Materials into the environment (including, without limitation, ambient air, surface
water, groundwater, land or soil).
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B. Disclaimer As To Environmental Matters.
The Property is being sold in "AS IS" condition. The Purchaser acknowledges
and agrees that the Seller has not made, does not make and specifically negates
and disclaims any representations, warranties, promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied, oral
or written, (past, present, or future) of, as to, concerning or with respect to
environmental matters with reference to the Property, including, but not limited
to: (a) the value, nature, quality or condition of the Property, including, without
limitation, the water, minerals, soil and geology, (b) the compliance of or by the
Property or its operation with any Environmental Requirements, (c) compliance
of or by the Property or the Seller with any environmental protection, pollution,
land use, zoning or development of regional impact laws, rules, regulations,
orders or requirements, including the existence in or on the Property of Hazardous
Materials.
The Purchaser further acknowledges and agrees that as part of this Agreement it is
being given the opportunity to inspect the Property, all relevant documents and
records of the SeIIer as they relate to the Property, and any other documents that
may exist in the public records of the state, county and/or city relating to the
environmental condition of the Property, and that with regard to the matters that
are the subject of this Agreement, the Purchaser is not relying upon any
documents or representations made by or on behalf of the Seller, but that the
Purchaser is responsible to conduct its own investigation(s) of the Property.
The Purchaser further acknowledges and agrees that any information provided or
to be provided by the Seller with respect to the Property was obtained from a
variety of sources, and that the Seller has not made an independent investigation
or verification of such information and makes no representations as to the
accuracy or completeness of such information, provided, however, that the Seller
agrees that it will not intentionally withhold information and will not knowingly
provide any false or misleading information to the Purchaser.
C. Investigation Period.
The Purchaser, its employees, agents, consultants and contractors shall have a
period of forty-five (45) days from the Effective Date (the "Investigation Period")
in which to undertake, at the Purchaser's expense, such work, physical inspections
and other investigations of and concerning the Property including surveys, soil
borings, percolation, engineering studies, environmental tests and studies and
other tests as the Purchaser considers necessary for the Purchaser and its
consultants to review and evaluate the physical characteristics of the Property (the
`Environmental Inspection"), after giving the Seller reasonable notice of twenty-
four (24) hours prior to each test to be performed.. The Purchaser, at its option,
may extend the Investigation Period for an additional thirty (30) days if, based
upon the results of the testing, additional testing is warranted. For the purpose of
conducting the Environmental Inspection, the Seller hereby grants to the
Purchaser and its consultants and/or agents, full right of entry upon the Property
during the Investigation Period through the Closing Date. The right of access
herein granted shall be exercised and used by the Purchaser, its employees,
agents, representatives and contractors in such a manner as not to cause any
material damage or destruction of any nature whatsoever to the Property, or
interruption of the use of the Property by the Seller, its employees, officers, agents
and tenants.
D. Inspection Indemnity, Insurance and Releases.
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Notwithstanding anything contained in this Agreement to the contrary, as
consideration for the nominal purchase price for the Property and for the Seller
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granting a continuing right of entry to the Property prior to the Closing Date, the
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Purchaser hereby specifically agrees to: (i) immediately pay and/or cause to be
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removed any liens or encumbrances filed against the Property as a result of any
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actions taken by or on behalf of the Purchaser in connection with the inspection of
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the Property; (ii) immediately repair and restore the Property to its condition
existing immediately prior to the Investigation Period; and (iii) with respect to the
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inspection of the Property, indemnify, defend and hold harmless the Seller, its
employees, officers and agents, from and against all claims, damages or losses_
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incurred to the Property or otherwise as a result of the actions taken by the
Purchaser, any of its employees, agents, representatives or contractors, or anyone
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directly or indirectly empleyed- by any of them or anyone for whose acts they may
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be liable, , regardless of whether or not such claim, demand, cause of action,
damage, liability, loss or expense is caused in part by the Seller, and/or its
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employees, officers and agents, provided, however, the Purchaser shall not be
liable for the gross negligence or intentional misconduct of the Seller, or its
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employees, officers and agents. Nothing herein shall be deemed to abridge the
rights, if any, of the Seller to seek contribution where appropriate.
The provisions of this indemnity shall survive the Closing and/or the termination
of this Agreement.
Prior to the Purchaser entering upon the Property for purposes of commencement
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of the Environmental Inspection, the Purchaser shall furnish to the Seller the
policy or policies of insurance and/or certificates of insurance protecting the
Seller during the course of such testing against all claims for personal injury and
property damage arising out of or related to the activities undertaken by the
Purchaser, its agents, employees, consultants and contractors, or anyone directly
or indirectly employed by any of them or anyone for whose acts they may be
liable, upon the Property or in connection with the Environmental Inspection. All
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such policies and/or certificates of insurance shall be in such a form and in such
amounts as may be required by the SeIler's Risk Management Administrator.
The Purchaser hereby voluntarily, intentionally and knowingly waives any and all
claims against the Seller for personal injury or property damage sustained by the
Purchaser, and/or its employees, agents, contractors, or consultants arising out of
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or related to the activities undertaken by the Purchaser, its agents, employees,
consultants or contractors upon the Property or in connection with the
Environmental Inspection, and hereby releases the Seller and its employees,
officers and agents from any claims in connection therewith.
E. Remedies/Right of Termination.
If, prior to the end of the Investigation Period, the Purchaser discovers the
presence of Hazardous Materials on the Property in levels or concentrations
which exceed the standards set .forth by the Miami -Dade County Department of
Environmental Resources Management, the State of Florida Department of
Environmental Protection, the United States Environmental Protection Agency,
the Environmental Requirements or by any other federal, state or local regulatory
body with jurisdiction for environmental matters, the Purchaser shall notify the
Seller in writing and deliver to the Seller copies of all written reports concerning
such Hazardous Materials (the "Environmental Notice"). The Purchaser shall
have the option, within seven (7) business days from the date the Seller receives
the Environmental Notice, to cancel this Agreement by written notice to the
Seller, whereupon: (i) all property data and all studies, analysis, reports and plans
respecting the Property delivered by the Seller to the Purchaser or prepared by or
on behalf of the Purchaser shall be delivered by the Purchaser to the Seller; and
then (ii) except as otherwise provided in this Agreement, the Parties. hereto shall
thereupon be relieved of any and all further responsibility hereunder and neither
Party shall have any further obligation on behalf of the other; and (iii) the Seller
shall refund to the Purchaser any deposit(s) paid by the Purchaser to the Seller in
anticipation of the Closing (the "Deposit"), less any out of pocket expenditures
incurred by the Seller in connection therewith.
F. Waiver and Release.
In the event that the Purchaser does not elect to cancel this Agreement as
permitted by paragraph E of this Section 3, the Purchaser acknowledges and
agrees that to the maximum extent permitted by law, the sale of the Property as
provided for herein shall be made on an "AS IS" condition and basis with all
faults. The Purchaser on behalf of itself and its successors and assigns
voluntarily, knowingly and intentionally waives, releases, acquits, and forever
discharges the Seller, and its heirs and successors and the assigns of any of the
preceding, of and from any and all claims, actions, causes of action, demands,
rights, damages, costs, expenses or compensation whatsoever, direct or indirect,
known or unknown, foreseen or unforeseen, which the Purchaser or any of its
successors or assigns now has or which may arise in the future on account of or in
any way related to or in connection with any past, present, or future physical
characteristic or condition of the Property including, without limitation, any
Hazardous Materials in, at, on, under or related to the Property, or any violation or
potential violation or any Environmental Requirement applicable thereto. In
addition, the Purchaser thereafter specifically waives all current and future claims
and causes of action against the Seller arising under CERCLA, RCRA, Chapters
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376 and 402, Florida Statutes,. and any other federal or state law or county
regulation relating to Hazardous Materials in, on, under or affecting the Property
or other environmental protections. Notwithstanding anything to the contrary set
forth herein, this release. shall survive the Closing and/or the termination of this
Agreement. The conveyance of the Property for nominal value is acknowledged
by the Purchaser as being sufficient consideration for this waiver and release by
the Purchaser, which shall survive the Closing.
TITLE EVIDENCE
Within 30 days of the Effective Date, the Seller agrees to give Purchaser copies of
any title policies and exceptions to title pertaining to the Property in Seller's
possession. The Purchaser, at its sole cost and expense, shall be responsible for
obtaining a title commitment or other satisfactory evidence which the Purchaser
requires in order to ascertain the status of title. The Purchaser agrees to forward a
copy of the aforementioned title documents to the Seller within 7 calendar days of
the Purchaser's receipt thereof and no later than 7 calendar days prior to the
Closing. The Purchaser's title examination shall be completed within the
Investigation Period.
In the event the Purchaser's examination of title reflects any condition which
renders the title unmarketable or otherwise makes it impractical for the Purchaser
to develop the Improvements (as defined in Section 10, below) (the "Title
Defect"), the Purchaser shall have the option to terminate this Agreement within
seven (7) business days from the end of the Investigation Period. In such event,
the Purchaser shall notify the Seller in writing of the cancellation of this
Agreement, whereupon: (i) all property data and all studies, analysis, reports and
plans respecting the Property delivered by the Seller to the Purchaser or prepared
by or on behalf of the Purchaser shall be delivered by the Purchaser to the Seller;
and then (ii) except as otherwise provided in this Agreement, the Parties hereto
shall thereupon be relieved of any and all further responsibility hereunder and
neither Party shall have any further obligation on behalf of the other; and (iii) the
Seller shall refund to the Purchaser any deposit paid by the Purchaser to the Seller
in anticipation of the Closing, less any out of pocket expenditures incurred by the
Seller in connection therewith.
In the event that the Purchaser does not elect to cancel this Agreement as
permitted by this Section 4, the Purchaser acknowledges and agrees that the sale
of the Property as provided for herein shall be made on an "AS IS" condition and,
basis without any representations and warranties made by Seller.
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376 and 402, Florida Statutes,. and any other federal or state law or county
regulation relating to Hazardous Materials in, on, under or affecting the Property
or other environmental protections. Notwithstanding anything to the contrary set
forth herein, this release. shall survive the Closing and/or the termination of this
Agreement. The conveyance of the Property for nominal value is acknowledged
by the Purchaser as being sufficient consideration for this waiver and release by
the Purchaser, which shall survive the Closing.
TITLE EVIDENCE
Within 30 days of the Effective Date, the Seller agrees to give Purchaser copies of
any title policies and exceptions to title pertaining to the Property in Seller's
possession. The Purchaser, at its sole cost and expense, shall be responsible for
obtaining a title commitment or other satisfactory evidence which the Purchaser
requires in order to ascertain the status of title. The Purchaser agrees to forward a
copy of the aforementioned title documents to the Seller within 7 calendar days of
the Purchaser's receipt thereof and no later than 7 calendar days prior to the
Closing. The Purchaser's title examination shall be completed within the
Investigation Period.
In the event the Purchaser's examination of title reflects any condition which
renders the title unmarketable or otherwise makes it impractical for the Purchaser
to develop the Improvements (as defined in Section 10, below) (the "Title
Defect"), the Purchaser shall have the option to terminate this Agreement within
seven (7) business days from the end of the Investigation Period. In such event,
the Purchaser shall notify the Seller in writing of the cancellation of this
Agreement, whereupon: (i) all property data and all studies, analysis, reports and
plans respecting the Property delivered by the Seller to the Purchaser or prepared
by or on behalf of the Purchaser shall be delivered by the Purchaser to the Seller;
and then (ii) except as otherwise provided in this Agreement, the Parties hereto
shall thereupon be relieved of any and all further responsibility hereunder and
neither Party shall have any further obligation on behalf of the other; and (iii) the
Seller shall refund to the Purchaser any deposit paid by the Purchaser to the Seller
in anticipation of the Closing, less any out of pocket expenditures incurred by the
Seller in connection therewith.
In the event that the Purchaser does not elect to cancel this Agreement as
permitted by this Section 4, the Purchaser acknowledges and agrees that the sale
of the Property as provided for herein shall be made on an "AS IS" condition and,
basis without any representations and warranties made by Seller.
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5. TERMINATION BY PURCHASER.
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Notwithstanding any provision of this Agreement to the contrary, the Purchaser
shall have the option to terminate this Agreement for any reason not otherwise
provided for in this Agreement, within seven (7) business days from the end of
the Investigation Period. In such event, the Purchaser shall notify the Seller in
writing of the cancellation of this Agreement, whereupon: (i) all property data and
all studies, analysis, reports and plans respecting the Property delivered by the
Seller to the Purchaser or prepared by or on behalf of the Purchaser shall be
delivered by the Purchaser to the Seller; and then (ii) except as otherwise
provided in this Agreement, the Parties hereto shall thereupon be relieved of any
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and all further responsibility hereunder and neither Party shall have any further
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obligation on behalf of the other; and (iii) the Seller shall refund to the Purchaser
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any deposit paid by the Purchaser to the Seller in anticipation of the Closing, less
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any out of pocket expenditures incurred by the Seller in connection therewith.
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DISCLAIMER OF WARRANTIES AS TO PROPERTY; "AS IS"
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A. The Purchaser acknowledges and agrees that the Purchaser is purchasing
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Property in an. "AS IS" condition without. any warranties, representations or
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guaranties, either express or implied, of any kind, nature or type whatsoever from
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or on behalf of the Seller. Without in any way limiting the generality of the
immediately preceding, and in addition to the specific disclaimers set forth in
Section 3 of this Agreement with respect to Environmental Matters, the Purchaser
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and the Seller further acknowledge and agree that in entering into this Agreement
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and purchasing the Property:
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1. The Purchaser hereby acknowledges that the Seller has not made,
and will not and does not make, any warranties or representations,
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whether express or implied, with respect to the Property, its
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condition, and/or the value, profitability, or marketability thereof;
2. The Purchaser acknowledges that with respect to the Property, the
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Seller has not made, and will not and does not make, any
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warranties, whether -express or implied, of merchantability,
habitability or fitness for a particular use or suitability of the
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Property for any or all activities and uses which the Purchaser may
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conduct thereon;
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3. The Purchaser acknowledges that the Seller has not made, and will
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not and does not make, any representations, whether express or
implied, with respect to compliance with any land use, developer
impact fees or assessments, zoning or development of regional
impact laws, rules, regulations, orders or requirements;
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4. The Purchaser acknowledges that the Purchaser has made and/or
The Closing of the sale of the Property (the "Closing") shall take place no later
than December 29, 2008 (the "Closing Date"), at a mutually agreeable time at the
City of Miami, Office, of the City Attorney, at 444 SW 2 Avenue, Suite 945,
Miami, Florida. The Parties may, subject to mutual agreement, establish an
earlier date for the Closing. The parties agree that the Purchaser is applying for
various forms of subsidized financing which may include low income housing tax
credits (collectively, the "Financing"). The Purchaser's obligations to acquire the
Property hereunder are. subject to it successfully obtaining such Financing. At
such time as the Purchaser obtains the same it will notify the Seller of its intention
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shall be given an adequate opportunity to make such legal, factual
and other inquiries and investigations as the Purchaser deems
necessary, desirable or appropriate with respect to the Property,
and the value or marketability thereof and any appurtenances
thereto. Such inquiries and investigations by the Purchaser
include, but shall not be limited to, the condition of all portions of
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the Property and such state of facts as an accurate abstract of title
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5. The Purchaser acknowledges that the Purchaser has not relied, and
is not relying, upon any information, document, projection, pro
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forma, statement, representation, guaranty or warranty (whether
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or implied, or oral or written or material or immaterial)
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that may have been given or made by or on behalf of the Seller.
6. The Purchaser acknowledges that as to an personalty g Y P Y on the
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Property the Seller has not made, will not make and does not make,
any warranties or representations, whether express or implied, and
specifically disclaims any WARRANTY OF
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MERCHANTABILITY. As to personal property, if any, it shall be
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conveyed to the Seller on an "AS IS" condition and basis with all
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B. The provisions of this Section 6 shall survive the Closing.
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RESTRICTIONS, EASEMENTS AND. LIMITATIONS
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The Purchaser further agrees it shall take title subject to: zoning requirements,
restrictions, and prohibitions, and other requirements imposed by governmental
authority; restrictions and matters appearing on the public records, including, but
not limited to, deed restrictions and reversionary interests, and all recorded and
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unrecorded easements and any matters that would be disclosed on a survey of the
Property.
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CLOSING DATE
The Closing of the sale of the Property (the "Closing") shall take place no later
than December 29, 2008 (the "Closing Date"), at a mutually agreeable time at the
City of Miami, Office, of the City Attorney, at 444 SW 2 Avenue, Suite 945,
Miami, Florida. The Parties may, subject to mutual agreement, establish an
earlier date for the Closing. The parties agree that the Purchaser is applying for
various forms of subsidized financing which may include low income housing tax
credits (collectively, the "Financing"). The Purchaser's obligations to acquire the
Property hereunder are. subject to it successfully obtaining such Financing. At
such time as the Purchaser obtains the same it will notify the Seller of its intention
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to acquire the Property, provided, however, that the Closing of the sale of the
Property shall take place no later than the Closing Date.
DEED RESTRICTIONS
The Seller shall convey title to the Property by City Deed (which shall be a quit
claim deed), subject to certain deed restrictions pertaining to the use of the
Property imposed in accordance with the requirements of the City Charter and
Code, the City Commission, the funding source (the HOME Investment
Partnerships Program, 24 C.F.R. Part 92) for the Property and the following
agreements between the Purchaser and the Seller:
The Purchaser must have commenced construction of no less than 75 multifamily
apartment units, within 12 months of the date of the City Deed. Requirements for
subsequent phase(s) of the Project, if any, shall be mutually agreed upon by the
parties hereto and consistent with this Agreement.
Further, the Purchaser must complete the aforedescribed improvements, as
evidenced by the issuance of a Certificate of Occupancy by the appropriate
governmental body, by no later than two (2) years from the date of the City Deed.
Such dates may be extended in the Seller's reasonable discretion in the event
circumstances outside the control of the Purchaser, as reasonably determined by
Seller, make such dates impossible to be met.
In the event that the construction of the project is allocated funding by the City of
Miami Housing and Commercial Loan Committee, the time frames for
commencement and. completion -of _construction shall be the standard time frames
adopted by the Housing and Commercial Loan Committee.
AFFORDABLE HOUSING EXEMPTION
The Purchaser represents and warrants to the Seller that for a period of thirty (30)
years (the "Affordability Period"), the Property will be used exclusively for the
purpose of providing affordable housing for persons or households of low and
moderate income, based on criteria established by the City Commission of the
City of Miami in Resolution No. , a copy of which is attached hereto
as Exhibit A, subject to such "recapture" provisions (in accordance with 24 C.F.R.
§92.254) relating to the Project homeownership units as shall be provided in the
restrictive covenant, or modificationlrestatement of restrictive covenant, to be
executed by the Purchaser at the Closing. The Seller has relied on the Purchaser's
representations in entering into this Agreement pursuant to the provisions of
Section 29-B of the Charter of the City of Miami, which exempts from the
competitive bidding requirements established therein "conveying property to
implement housing programs or projects which are intended to benefit persons or
households with low and/or moderate income, the criteria of which to be provided
for by federal and/or state law or by the city commission". The Purchaser's
representations and warranties contained in this Section 10 shall constitute a
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to acquire the Property, provided, however, that the Closing of the sale of the
Property shall take place no later than the Closing Date.
DEED RESTRICTIONS
The Seller shall convey title to the Property by City Deed (which shall be a quit
claim deed), subject to certain deed restrictions pertaining to the use of the
Property imposed in accordance with the requirements of the City Charter and
Code, the City Commission, the funding source (the HOME Investment
Partnerships Program, 24 C.F.R. Part 92) for the Property and the following
agreements between the Purchaser and the Seller:
The Purchaser must have commenced construction of no less than 75 multifamily
apartment units, within 12 months of the date of the City Deed. Requirements for
subsequent phase(s) of the Project, if any, shall be mutually agreed upon by the
parties hereto and consistent with this Agreement.
Further, the Purchaser must complete the aforedescribed improvements, as
evidenced by the issuance of a Certificate of Occupancy by the appropriate
governmental body, by no later than two (2) years from the date of the City Deed.
Such dates may be extended in the Seller's reasonable discretion in the event
circumstances outside the control of the Purchaser, as reasonably determined by
Seller, make such dates impossible to be met.
In the event that the construction of the project is allocated funding by the City of
Miami Housing and Commercial Loan Committee, the time frames for
commencement and. completion -of _construction shall be the standard time frames
adopted by the Housing and Commercial Loan Committee.
AFFORDABLE HOUSING EXEMPTION
The Purchaser represents and warrants to the Seller that for a period of thirty (30)
years (the "Affordability Period"), the Property will be used exclusively for the
purpose of providing affordable housing for persons or households of low and
moderate income, based on criteria established by the City Commission of the
City of Miami in Resolution No. , a copy of which is attached hereto
as Exhibit A, subject to such "recapture" provisions (in accordance with 24 C.F.R.
§92.254) relating to the Project homeownership units as shall be provided in the
restrictive covenant, or modificationlrestatement of restrictive covenant, to be
executed by the Purchaser at the Closing. The Seller has relied on the Purchaser's
representations in entering into this Agreement pursuant to the provisions of
Section 29-B of the Charter of the City of Miami, which exempts from the
competitive bidding requirements established therein "conveying property to
implement housing programs or projects which are intended to benefit persons or
households with low and/or moderate income, the criteria of which to be provided
for by federal and/or state law or by the city commission". The Purchaser's
representations and warranties contained in this Section 10 shall constitute a
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covenant running with the land, which touches, covenants, and concerns the land
and will bind the Purchaser and its authorized assigns and heirs throughout the
"°� Affordability Period. The Purchaser's representations and warranties contained in
this Section 10 shall be enforceable by the Seller as a covenant running with the
JJ land.
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The Purchaser represents and warrants to the Seller that the Property will be
developed for the benefit of persons or households of low and moderate income
as set forth herein. The Purchaser further agrees to construct on the Property at
least 75 units consisting of the following; (i) multifamily rental apartments for
lease to persons earning no greater than 80% of the area median income for.
Miami -Dade County ("AMI") and/or (ii) homeownership units to be sold to
persons earning no more than 120% of the AMI (the "Improvements"), provided,
however, that no less than forty (40) of the Project units shall be rented or sold to
persons earning no greater than 80% of the area median income for Miami -Dade
County, and further provided, however, that the number of Project units to be
rented or sold to persons earning no greater than 80% of the area median income
for Miami -Dade County, shall be reduced by the number of units rented or sold
by Madison Housing II, Ltd., a Florida limited partnership, on Tracts A and C of
the Plat of New Hope Overtown to persons earning no greater than 80% of the
area median income for Miami -Dade County. Upon the conveyance of the
Property to Purchaser, the Purchaser shall continue diligently with the
construction of the improvements to completion.
The Purchaser's representations and warranties contained in this Section 10 shall
be embodied in a restrictive covenant which shall be recorded and mutually
- -agreed-=upon--by-the-parties-which is --intended to embody the provisions of this
Section 10.
1.
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ADDITIONAL AGREEMENTS/COVENANTS
A. The Purchaser agrees that in the event the Property is ever immune or exempt
from the payment of ad valorem taxes, the Purchaser, or any of the Purchaser's
assigns, heirs, or successors, shall pay to the Seller an annual payment which shall
be equal to what the Seller would have received as ad valorem taxes based on the
valuation method employed by the county property appraiser pursuant to F.S. Ch.
193, as amended.
B. The Purchaser shall, within thirty (30) calendar days from the date of the
Seller's written request for the same, provide to the Seller: (i) any document(s)
requested by the Seller, in its sole but reasonable judgment, pertaining to the
development of the proposed Project, including, but not limited to the financing of
the construction thereof, and, (ii) any other documents required by the Seller, in
its sole but reasonable judgment, relating to the Project, the Property and/or this
Agreement.
C. The Seller acknowledges that there will be a small retail/commercial
component of the Purchaser's development of the Property.
D. The provisions of this Section 1 I shall survive the Closing.
12. CLOSING DOCUMENTS
A. At the Closing, the Seller shall execute and/or deliver to the Purchaser the
following:
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City Deed, subject to conditions, restrictions, easements and
limitations
of record, any conditions and/or restrictions imposed by
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the funding source for the acquisition of the Property, and such
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other conditions as are described in this Agreement;
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Mortgage Assumption Agreement;
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Modification Agreement(s);
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A Closing Statement;
5.
A Seller's Affidavit and allon-Foreign Affidavit;
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_ Such documents as are necessary to fully authorize the sale of the
Property by the Seller and the execution of all Closing Documents;
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and
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Any ..other documents as may- be necessary_ .or advisable to
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consummate the transaction contemplated hereby.
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8. The Purchaser's Closing Documents: At the Closing, the Purchaser shall
execute
and/or deliver to the Seller the following:
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Mortgage Assumption Agreement;
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Modification Agreement;
3.
Declaration of Restrictive Covenants, or Modification/Restatement
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of Declaration of Restrictive Covenants;
4.
Closing Statement;
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Such documents as are necessary to fully authorize the purchase of
the Property by Purchaser and the execution of all Closing
Documents;
6. Documents reasonably requested by the Seller pertaining to the
development of the proposed Project; and
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7. Any other documents required by the Seller to consummate the
transaction contemplated hereby which documents must be
satisfactory to Seller in its sole but reasonable judgment.
13. CLOSING COSTS AND ADJUSTMENTS
At the Closing, the following items shall be borne, adjusted, prorated and/or
assumed by and between the Seller and the Purchaser as follows:
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A. Adjustments and Prorations
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Real Estate Taxes: All ad valorem taxes shall be pro -rated through
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the Closing Date based on the most current tax bill. The . Seller
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shall be responsible for all taxes prior to the Closing Date and
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Purchaser shall be responsible for all pro -rated taxes subsequent to
the Closing Date.
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Certified/Pending Liens: Certified, confirmed and ratified
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governmental liens, and pending liens, as of the Closing Date shall
be paid/assumed by the Purchaser. Notwithstanding the foregoing,
to the extent permitted by Section 2-817(h) of the City Code, the
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Seller agrees to release, or cause to be released, any liens created
or imposed, by the Seller that are currently encumbering the
Property.
3.
Other Taxes, Expenses, Interest, Etc: Taxes,. assessments, water
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and sewer charges, waste fee and fire protection charges, if
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applicable, shall be paid by the Purchaser.
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Usual and Customary: Such other items that are usually and
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customarily pro -rated between purchasers and sellers of properties
in Miami -Dade County as of the Closing Date shall be paid by the
Purchaser.
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B. Closing
Costs
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Each Party shall be responsible for its own attorney's fees incurred
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in connection with the Closing.
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2.
The Purchaser shall pay all other Closing and recording costs
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incurred in connection with the sale and purchase of the Property
described in this Agreement and the assumption of the existing
debt, including, but not limited to:
(i) all recording charges and filing fees payable in connection
with the transfer of the Property hereunder;
(ii) documentary stamps; and
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(iii) Project fees, including signage fees, advertising costs and
fees for Property security.
14. RISK OF LOSS
The Purchaser assumes all risk of loss or damage to the Property by fire or other
casualty, or acts of God, as of the Effective Date.
15. RELEASE AND INDEMNIFICATION
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The Purchaser and anyone claiming by, through or under the Purchaser hereby
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fully and irrevocably release the Seller, and its employees, officers, directors,
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representatives, agents, successors and assigns (collectively, the "Seller") from
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any and all claims that it may now have or hereafter acquire against the Seller for
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any cost, loss, liability, damage, expense, demand, action or cause of action
arising from or related to any defects, errors, omissions or other conditions,
including, but not limited to, environmental matters, title to the Property,
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condition of the Property, personal injury or property damage arising from the use
or occupancy of the Property, or any other matter affecting the Property, or any
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portion thereof. This release and indemnification shall survive the Closing.
16.
DEFAULT
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A. If this transaction does not Close as a result of default by the Seller, as and
for its sole and exclusive remedies, the Purchaser shall be entitled to: (i)
elect to terminate this Agreement and receive the return of the Deposit; or,
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(ii) elect to waive any such default and obtain the relief of specific
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performance against the Seller without any further claim against the
Seller.
B. If this transaction does not Close as a result of default by the Purchaser, as
and for its sole and exclusive remedy, the Seller shall retain the Deposit
and any interest earned thereon, as liquidated damages and not as a
forfeiture, damages being difficult impossible
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penalty or actual or to
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C. Neither Party shall be entitled to exercise any remedy for a default by the
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other Party until (i) such Party has delivered to the other notice of the
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default, and, (ii) a period of ten (10) calendar days from and after delivery
of such notice has expired with the other Party having failed to cure the
default. However, there shall be no cure period for the Purchaser's failure
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to close on or before the scheduled Closing Date. Upon such failure of the
Purchaser, this Agreement shall automatically and immediately terminate.
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17. DESIGNATION OF REPRESENTATIVES
The Purchaser and the Seller acknowledge that proper communication between
the Purchaser- and the Seller is important. Accordingly, to facilitate such
communication, the Purchaser and the Seller have appointed the following
persons on their respective behalves to be their representatives, to wit:
On behalf of the Seller,
City of Miami
Barbara Gomez, Director
Department of Community Development
444 SW 2nd Avenue, 2nd Floor
Miami, FL 33130
Telephone (305) 416-1978
On behalf of the Purchaser.:
Madison Housing, Ltd.
c/o The Gatehouse Group, Inc.
Cabot Business Park
120 Forbes Boulevard
Mansfield, MA 02048
Attention: Marc Plonskier
18. NOTICES AND OTHER COMMUNICATIONS
Notices given pursuant to this Agreement shall be in writing and shall be deemed
properly served if delivered by personal service or by certified mail addressed to the
Seller or the Purchaser at the addresses indicated below. Notice shall be deemed given
on the day on which personally served, or, if deliveredby certified mail, on the fifth day
after being posted or the ` date of actual receipt, whichever is earlier. Other
communications which may be given pursuant to this Agreement shall be in writing and
shall be deemed given upon hand delivery or five (5) business days after depositing the
same with the U.S. Postal Service to the addresses indicated below.
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Seller
City of Miami
Barbara Gomez, Director
Department of Community Development
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444 SW 2"d Avenue, 2"d Floor
Miami, FL 33130
Telephone (305) 416-1978
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Copy To
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Ilene Temchin, Esq.
Assistant City Attorney
City of Miami
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444 SW 2 Avenue, Suite 945
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Miami, FL 33130
it:Document 70498
Purchaser
Madison Housing, Ltd.
c/o The Gatehouse Group, Inc.
Cabot Business Park
120 Forbes Boulevard
Mansfield, MA 02048
Attention: Marc Plonskier
Copy To
Brian J. McDonough
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
Museum Tower
150 West Flagler Street
22"d Floor
Miami, FL 33130
14
19.
20.
21.
The Seller will endeavor to send copies of notices given to the Purchaser pursuant
to this Agreement to the Purchaser's legal counsel indicated above. However, the
failure by the Seller to send a copy of a notice properly sent to the Purchaser shall
not affect the valid delivery of such notice to the Purchaser.
CAPTIONS AND HEADINGS
The Section headings or captions appearing in this Agreement are for
convenience only, are not part of this Agreement, and are not to be considered in
interpreting this Agreement.
BINDING EFFECT
This Agreement shall bind and inure to the benefit of the Parties hereto and their
successors in interest.
GOVERNING LAW
This Agreement shall be governed according to the .laws of the State of Florida
and venue in any proceedings shall be in Miami -Dade County, Florida.
22. WAIVERS
23.
24.
25.
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No waiver by either Parry of any failure or refusal to comply with its obligations
shall be deemed a waiver of any other or subsequent failure or refusal to comply.
All remedies, rights, undertaking, obligations and agreement contained herein
shall be cumulative and not mutually exclusive.
SURVIVAL OF REPRESENTATIONS/WARRANTIES
Only those provisions this Agreement which are so designated shall survive the
Closing and be enforceable by the respective Parties until such time as
extinguished by law.
PARTIAL INVALIDITY
In the event that any provision of this Agreement shall be unenforceable in whole
or in part, such provision shall be limited to the extent necessary to render the
same valid, or shall be excised from this Agreement as the circumstances require,
and this Agreement shall be construed as if said provision had been incorporated
herein as so limited, or as if said provision had not been included herein, as the
case may be.
WAIVER OF TRIAL BY JURY, VENUE
The Parties hereby knowingly, voluntarily and intentionally waive any right they
may have to a trial by jury and/or to claim. attorneys fees from the other Party in
respect to any litigation arising out of, under or in connection with this
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20.
21.
The Seller will endeavor to send copies of notices given to the Purchaser pursuant
to this Agreement to the Purchaser's legal counsel indicated above. However, the
failure by the Seller to send a copy of a notice properly sent to the Purchaser shall
not affect the valid delivery of such notice to the Purchaser.
CAPTIONS AND HEADINGS
The Section headings or captions appearing in this Agreement are for
convenience only, are not part of this Agreement, and are not to be considered in
interpreting this Agreement.
BINDING EFFECT
This Agreement shall bind and inure to the benefit of the Parties hereto and their
successors in interest.
GOVERNING LAW
This Agreement shall be governed according to the .laws of the State of Florida
and venue in any proceedings shall be in Miami -Dade County, Florida.
22. WAIVERS
23.
24.
25.
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No waiver by either Parry of any failure or refusal to comply with its obligations
shall be deemed a waiver of any other or subsequent failure or refusal to comply.
All remedies, rights, undertaking, obligations and agreement contained herein
shall be cumulative and not mutually exclusive.
SURVIVAL OF REPRESENTATIONS/WARRANTIES
Only those provisions this Agreement which are so designated shall survive the
Closing and be enforceable by the respective Parties until such time as
extinguished by law.
PARTIAL INVALIDITY
In the event that any provision of this Agreement shall be unenforceable in whole
or in part, such provision shall be limited to the extent necessary to render the
same valid, or shall be excised from this Agreement as the circumstances require,
and this Agreement shall be construed as if said provision had been incorporated
herein as so limited, or as if said provision had not been included herein, as the
case may be.
WAIVER OF TRIAL BY JURY, VENUE
The Parties hereby knowingly, voluntarily and intentionally waive any right they
may have to a trial by jury and/or to claim. attorneys fees from the other Party in
respect to any litigation arising out of, under or in connection with this
15
Agreement, or any course of conduct, course of dealing, statements (whether oral
or written) or actions in connection with the transactions contemplated hereby.
This provision is a material inducement for the Purchaser and the Seller entering
into this Agreement. Venue in any litigation shall be in Miami -Dade County,
Florida.
26. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties. There are no
promises, agreements, undertakings, warranties or representations, oral or written,
express or implied, between the Parties other than as herein set forth. No
amendment or modification of this Agreement shall be valid unless the same is in
writing and signed by the City Manager on behalf of the Seller, and by the
Purchaser. The Purchase and Sale Agreement between the City of Miami and
Madison Housing, Ltd., dated August 1, 2006, is terminated.
27. TIME OF THE ESSENCE
Time is of the essence of this Agreement and in the performance of all conditions
and covenants to be performed or satisfied by either Party hereto. Whenever a
date specified herein shall fall on a Saturday, Sunday or legal holiday, the date
shall be extended to the next succeeding business day.
28. EFFECTIVE DATE/TIME OF ACCEPTANCE
The Effective Date of this Agreement shall be the date on which the attestation of
the City Clerk is affixed to this Agreement.
[Signatures appear on the following page]
THIS �� ° : :' ��rR�STIT�JTIOI TO
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BE
ORIGy m M Y 4';CAL CoIAN
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, as of
the day and year first above written.
ATTEST: MADISON HOUSING, LTD., a Florida
limited partnership
By: Madison Housing, LLC, a Florida
limited liability company, a general
partner
By: The Gatehouse Group, Inc., its
Witness manager
By:.
Marc Plonskier, President
Print Name
Date:
ATTEST: = - - CITY OF MIAMI, a municipal corporation of
the State of Florida
Priscilla A. Thompson, City Clerk
Date:
Approved As To Form And
Correctness:
Jorge L. Fernandez
City Attorney
Pedro G. Hernandez, City Manager
Date:
Approved As To Insurance
Requirements:
LeeAnn Brehm
Risk Management Administrator
GAw-bjm1348771094\Purchase Agreement-vldoe
THIS D0cUIV,� St�BSTOT�JT�C�N T
oR1G#NAL J- j l
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EIH—I—BIT_A
Resolution No. adopted by the City Commission on
-------------- 9
2007.
THIS, C�U`RTI UTI ON TO
1-11", r CAN BE
0R'IG'IPAJ1'-`IL
SEEN AT END 0'- 'HAS 1 --.1,AS DO-
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EXHIBIT W'
TRACTS B AND D; NEW HOPE VERTOWN, ACCORDING TO THE PLAT
THEREOF, AS RECORDED IN PLk ROOK 157 AT PAGE 14 OF THE PUBLIC
RECORDS OF MIAMI-DADE COUN FLORIDA
EXHIBIT A
Property to be conveyed to Madison Housing, Ltd.
Tracts B and D, New Hope Overtown, according to the Plat thereof, as
recorded in Plat Book 157, at Page 14, of the Public Records of Miami -
Dade County, Florida
S �a .` s � S BS
THIS DOCT1TUTiON TO
ORIGINAL ,3AC'Vx0' . ' {. CAN BE
SEEN AT END OF THIS DOCUMENT
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Property to be conveyed to Madison Housing 11, Ltd.
Tracts A and C, New Hope Overtown, according to the Plat thereof, as
recorded in Plat Book 157, at Page 14, of the Public Records of Miami -
Dade County, Florida
THIS DO
-MBSTITUTION TO
ORIGIINj3d-
SEEN A71 END OF 1NIS DOCUNIUENT
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