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HomeMy WebLinkAboutExhibit SUBEXHIBIT 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 THIS DOCJA:1,,,,,Thil ,„•.'1,,,3STITUTION TO ORIGINAL BACKUP. SEEN AT END OF THIS DOCUMENT it:Document 70549 3 EXHIBIT B Property to be conveyed to Madison Housing II, Ltd. "IMMO THIS rick,r,1 '1/4." ORIGIN"--\; . 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 SEEN AT END it:Document 70549 9STITUT1ON TO CAN BE "ChS DOCUMENT 4 PURCHASE 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"d 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") Recitals 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 on , 2007, for the development of affordable rental and/or homeownership units (the t" c ) m 23 1 2. The Purchaser desires to acquire the Property from the Seller in accordance with s and conditions of this Agreement. Now, therefore, the Parties hereto hereby agree that Seller shall sell and the Purchaser s .urchase the following property upon the following terms and conditions: ,.2,,,,„ 1. DESCRIPTION OF PROPERTY 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 t cPublic Records of Miami -Dade County, Florida, . � 'x hereinafter referred to as the "Property". CD q to The City agrees that, prior to the conveyance of the Property to Purchaser, it shall I remove all buildings, clear the site and release all liens, to the extent permitted by .ii. Section 2-817(h) of the City Code, that currently encumber the Property. 2 PURCHASE PRICE AND PAYMENT aiff The Purchaser agrees to pay and the Seller agrees to accept the sum of Ten and ys.�.. t No/100 Dollars ($10.00) (the "Purchase Price") as the Purchase Price for the Property. The Purchase Price shall be payable as follows. At the Closing, the —1 > 5'. Purchase Price, increased or decreased by adjustments, credits, prorations, and expenses as set forth in Section 13 and/or any other provision of this Agreement, Z z 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 cri "-1 existing debt in the approximate amount of $1,237,875.00, encumbering the M ® Property, payable to the Seller, upon terms and conditions reasonably acceptable it:Document 70498 T o1-Sods` 1 to both Purchaser and Seller, including the following: (1) that portion of the debt allocated 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 A. Definitions. For purposes of this Agreement: H > 5 r.N%-, co cr) Z m 0 The term "Hazardous Materials" shall mean and include without limitation, any substance, which is or contains: (A) any "hazardous substance" as now or hereafter defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C., Section 9601 et seq., "CERCLA") or any regulations promulgated under or pursuant to CERCLA; (B) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C., Section 6901 et seq.); (C) any substance regulated 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 containing materials, in any form, whether friable or non -friable; (F) polychlorinated biphenyls; and (G) any additional substance or material which: (i) is now or hereafter classified or considered to be hazardous or toxic under any of 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 (iii) would constitute a trespass if it emanated or migrated from the Property. The term "Environmental Requirements" shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees, now or hereafter enacted, promulgated, or amended of the United States, the State of Florida, Miami -Dade County, the City of Miami, or any other political subdivision, agency or instrumentality exercising jurisdiction over the Seller, the Purchaser, the Property, or the use of the Property, relating to pollution, the 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). it:Document 70498 2 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 Seller 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 it:Document 70498 3 CD —11 , cri rn 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. Notwithstanding anything contained in this Agreement to the contrary, as consideration for the nominal purchase price for the Property and for the Seller granting a continuing right of entry to the Property prior to the Closing Date, the Purchaser hereby specifically agrees to: (i) immediately pay and/or cause to be removed any liens or encumbrances filed against the Property as a result of any actions taken by or on behalf of the Purchaser in connection with the inspection of 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 inspection of the Property, indemnify, defend and hold harmless the Seller, its employees, officers and agents, from and against all claims, damages or losses 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 directly or indirectly employed by any of them or anyone for whose acts they may 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 employees, officers and agents, provided, however, the Purchaser shall not be liable for the gross negligence or intentional misconduct of the Seller, or its 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 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 such policies and/or certificates of insurance shall be in such a form and in such amounts as may be required by the Seller'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 it:Document 70498 4 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 it:Document 70498 5 376 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. 4. 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. it:Document 70498 5. TERMINATION BY PURCHASER. 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 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. DISCLAIMER OF WARRANTIES AS TO PROPERTY; "AS IS" CONVEYANCE. A. The Purchaser acknowledges and agrees that the Purchaser is purchasing the Property in an "AS IS" condition without any warranties, representations or guaranties, either express or implied, of any kind, nature or type whatsoever from 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 and the Seller further acknowledge and agree that in entering into this Agreement and purchasing the Property: 1. The Purchaser hereby acknowledges that the Seller has not made, and will not and does not make, any warranties or representations, whether express or implied, with respect to the Property, its condition, and/or the value, profitability, or marketability thereof; 2. The Purchaser acknowledges that with respect to the Property, the Seller has not made, and will not and does not make, any warranties, whether express or implied, of merchantability, habitability or fitness for a particular use or suitability of the Property for any or all activities and uses which the Purchaser may conduct thereon; 3. The Purchaser acknowledges that the Seller has not made, and will 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; it:Document 70498 7 4. The Purchaser acknowledges that the Purchaser has made and/or 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 the Property and such state of facts as an accurate abstract of title would show; 5. The Purchaser acknowledges that the Purchaser has not relied, and is not relying, upon any information, document, projection, pro forma, statement, representation, guaranty or warranty (whether express or implied, or oral or written or material or immaterial) that may have been given or made by or on behalf of the Seller. 6. The Purchaser acknowledges that as to any personalty on the 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 MERCHANTABILITY. As to personal property, if any, it shall be conveyed to the Seller on an "AS IS" condition and basis with all faults. B. The provisions of this Section 6 shall survive the Closing. . RESTRICTIONS,_ EASEMENTS AND LIMITATIONS 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 unrecorded easements and any matters that would be disclosed on a survey of the Property. . 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 it:Document 70498 8 41.13.2 im z 0 o z a) --I m O to acquire the Property, provided, however, that the Closing of the sale of the Property shall take place no later than the Closing Date. 9. 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. 10. 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 modification/restatement 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 it:Document 70498 9 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 land. 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. 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. it:Document 70498 10 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 11 shall survive the Closing. 12. CLOSING DOCUMENTS Ve • .�i 1173 F rn z 03 -I m o 3 A. At the Closing, the Seller shall execute and/or deliver to the Purchaser the following: 1. City Deed, subject to conditions, restrictions, easements and limitations of record, any conditions and/or restrictions imposed by the funding source for the acquisition of the Property, and such other conditions as are described in this Agreement; 2. Mortgage Assumption Agreement; 3. Modification Agreement(s); 4. A Closing Statement; 5. A Seller's Affidavit and a Non -Foreign Affidavit; 6. Such documents as are necessary to fully authorize the sale of the Property by the Seller and the execution of all Closing Documents; and 7. Any _ other documents as may be necessary_ .or advisable to consummate the transaction contemplated hereby. B. The Purchaser's Closing Documents: At the Closing, the Purchaser shall execute and/or deliver to the Seller the following: 1. Mortgage Assumption Agreement; 2. Modification Agreement; 3. Declaration of Restrictive Covenants, or Modification/Restatement of Declaration of Restrictive Covenants; 4. Closing Statement; 5. 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 it:Document 70498 11 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: A. Adjustments and Prorations 1. Real Estate Taxes: All ad valorem taxes shall be pro -rated through the Closing Date based on the most current tax bill. The Seller shall be responsible for all taxes prior to the Closing Date and Purchaser shall be responsible for all pro -rated taxes subsequent to the Closing Date. 2. Certified/Pending Liens: Certified, confirmed and ratified 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 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 and sewer charges, waste fee and fire protection charges, if applicable, shall be paid by the Purchaser. 4. Usual and Customary: Such other items that are usually and customarily pro -rated between purchasers and sellers of properties in Miami -Dade County as of the Closing Date shall be paid by the Purchaser. B. Closing Costs 1. Each Party shall be responsible for its own attorney's fees incurred in connection with the Closing. 2. The Purchaser shall pay all other Closing and recording costs 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; documentary stamps; and it:Document 70498 12 (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 The Purchaser and anyone claiming by, through or under the Purchaser hereby fully and irrevocably release the Seller, and its employees, officers, directors, representatives, agents, successors and assigns (collectively, the "Seller") from any and all claims that it may now have or hereafter acquire against the Seller for 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, 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 portion thereof. This release and indemnification shall survive the Closing. 16. DEFAULT 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, (ii) elect to waive any such default and obtain the relief of specific 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 penalty or forfeiture, actual damages being difficult or impossible to measure. C. Neither Party shall be entitled to exercise any remedy for a default by the other Party until (i) such Party has delivered to the other notice of the 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 to close on or before the scheduled Closing Date. Upon such failure of the Purchaser, this Agreement shall automatically and immediately terminate. it:Document 70498 13 17. DESIGNATION OF REPRESENTATIVES The Purchaser and the Seller acknowledge that proper communication between the Purchaserand 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 2"d Avenue, 2"d 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 delivered by 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. Seller City of Miami Barbara Gomez, Director Department of Community Development 444 SW 2"d Avenue, 2"d Floor Miami, FL 33130 Telephone (305) 416-1978 Copy To Ilene Temchin, Esq. Assistant City Attorney City of Miami 444 SW 2 Avenue, Suite 945 Miami, FL 33130 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 22nd Floor Miami, FL 33130 it:Document 70498 14 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. 19. 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. 20. BINDING EFFECT This Agreement shall bind and inure to the benefit of the Parties hereto and their successors in interest. 21. 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 No waiver by either Party 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. 23. 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. 24. 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. 25. 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 it:Document 70498 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] ,iFISTITUTION TO :. CAN BE it:Document 70498 16 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 Print Name By: Marc Plonskier, President Date: ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla A. Thompson, City Clerk Date: By: Pedro G. Hernandez, City Manager Date: Approved As To Form And Approved As To Insurance Correctness: Requirements: LeeAnn Brehm Jorge L. Fernandez Risk Management Administrator City Attorney G: w-bjm 048771094Turchase Agreement-v2.doc it:Document 70498 THIS DOCUMFNT IS A SUBSTITUTION TO ORIGINAL ORIGINAL CAN BE SEEN AT END OF mils DOCUMENT Resolution No. , 2007. EXHIBIT A adopted by the City Commission on ---weirmommas-o,nren.. TH A u ir"N N !,,?` .7.2, TO 0 l"") r;1 . „ C/J' NI BE SEEN AT ENO DOCUMENT it:Document 70498 1 8 EXHIBIT 'A" TRACTS B AND D; NEW HOPE VERTOWN, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PL BOOK 157 AT PAGE 14 OF THE PUBLIC RECORDS OF MIAMI-DADE COUN FLORIDA