PURCHASE AGREEMENT FAIRWAY VILLAGE, ST. CHARLES
FAIRWAY
VILLAGE, ST. XXXXXXX
THIS
AGREEMENT, made this 4th day
of March, 2004, by and between ST. XXXXXXX COMMUNITY, LLC, a Delaware
limited liability company (hereinafter referred to as “Seller”) and U.S. HOME
CORPORATION, a Delaware corporation (hereinafter referred to a “U.S. HOME” or
“Purchaser”).
WITNESSETH,
that for and in
consideration of the sum of ten dollars ($10.00) paid by the Purchaser to the
Seller and other good and valuable consideration, the receipt of which is hereby
acknowledged and in further consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. PURCHASE
PROVISIONS
1.01. Property. Seller
hereby grants to U.S. HOME the right to purchase approximately 1,950 developed
single family detached and single family attached home lots on the parcel of
land in St. Xxxxxxx, Xxxxxxx County, Maryland (the “County”) as shown in Xxxxxx
X0, X0, Xxxxxxxxx Xxxxxxxxxxxx, Xxxxxxx Village, attached hereto as Exhibit
A,
and made a part hereof, (hereinafter referred to as the “Property”),
individually a “Lot” or “Lots” collectively. U.S. HOME may elect to
purchase so many of such Lots as it deems appropriate in accordance with the
schedules set forth in paragraph 1.03 below.
1.02 Purchase
Price. The
purchase price for the Lots to be acquired by the Purchaser from the Seller
shall be equal to thirty percent (30%) of the "selling price" of the homes
Purchaser intends to construct on the Lots being acquired at any given
Closing. For purposes of this paragraph, the “selling price” shall be
the gross sales price of any Lot and the residence and structure constructed
or
to be constructed thereon in accordance with the Purchaser's published retail
prices in effect at the time of the applicable Closing, and shall include the
Lot and any Lot premium charged by the Purchaser, the structure or structures
built or to be built on the Lot, all of the Purchaser’s standard features
for the model of the home in question, and unfinished basement, garage, porch
and all floor coverings and standard finishes for the model in question, but
shall not include charges for any upgrades or optional features selected by
the third party homebuyer which are not routinely included in or with
residences built by the Purchaser at the time of the closing in
question, including but not limited to sunrooms and finished
basements. Additionally, for purposes of this section, "upgrades or
optional features" shall only include those items or things which are
traditionally upgrades or optional features for new homes sold in the Xxxxxxx
County area as of the date of the closing in question.
Sales incentives, commissions, closing help and closing costs paid by the
Purchaser shall not be deducted. In the event Purchaser substitutes
house types on any Lot following Closing, then Purchaser shall so notify Seller,
and at the time of closing from the Purchaser to the home purchaser, Purchaser
shall pay to Seller, or Seller shall pay to Purchaser, as applicable, any
difference in price of the affected Lot which results from the substitution
of
house types. Purchaser shall keep the Seller informed of any price
adjustments made from time to time during the term of this Agreement in the
Purchaser's retail price of the homes to be constructed on the Lots by the
Purchaser.
1.03. U.S.
HOME's Pace. Subject to Paragraph 2.13 hereof, Seller may terminate the
rights granted to U.S. HOME herein if U.S. HOME fails to purchase two hundred
(200) Lots per calendar year (prorated for any partial calendar year) provided
that the Lots have been developed in accordance with the terms of this
Agreement. The first year will commence after U.S. HOME has received
certification from the Seller that the lots are fully subdivided and ready
for
issuance of building permits.
Lots
purchased in excess of the number
required by U.S. HOME during any period of time shall be carried over to and
credited against requirements applicable to subsequent periods of time, and
such
carrying over and crediting shall be cumulative.
1.04.
Right of Entry. From and after the date of execution and delivery hereof,
U. S. HOME and the agents and contractors of U. S. HOME, at the expense and
risk
of U. S. HOME, shall have the right to enter upon the Property for the purpose
of surveying, the conduct of engineering studies and related engineering work,
test borings and such other similar work as U. S. HOME shall consider reasonable
and appropriate in connection with the development of the Property; provided,
however, that from and after the date of this Agreement and until the date
of
settlement hereunder, neither of the parties hereto shall have any right to
commit waste upon the Property without the prior written consent of the other
party. U. S. HOME shall indemnify, defend and hold the Seller harmless from
any
and all costs, claims and liabilities arising out of the activities undertaken
by U. S. HOME, its employees, agents or invitees pursuant to this
Paragraph.
II. GENERAL
PROVISIONS
2.01.
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Exercise
of Rights. U. S. HOME's commitment to purchase specific lots shall
be
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made
by
giving at least five (5) days notice to Seller in the manner and at the place
prescribed hereinafter. Notices under this paragraph may be sent by
overnight courier service or regular first-class mail or be given by
telephone.
2.02. Place
of Settlement. Settlement shall be held at the place designated by U. S.
HOME in the Baltimore-Washington Metropolitan Area during normal business
hours.
2.03. Terms
at Settlement. At settlement, for any lot purchased hereunder, U. S. HOME
shall pay the full purchase price thereof in cash, by wire transfer or by a
U.
S. HOME check. All taxes, metropolitan, district charges, front foot or other
benefit charges or assessments charged on an annual or other periodic basis
by a
State, County, District, Commission or any agency or subdivision thereof shall
be adjusted and pro-rated to the date of settlement, except that "rezoning
transfer tax", "agricultural transfer tax" or assessments for improvements,
existing in or on the Property prior to the date of settlement, even if payable
thereafter, shall be paid by Seller. The cost of all documentary stamps,
transfer taxes, recordation taxes or other taxes on the act of transfer of
conveyance required to be paid in connection with the transfer of any lot shall
be divided paid in full by U. S. HOME. Recording costs, title
examination and title insurance premiums shall be paid by U. S. HOME. Seller
shall pay for the preparation of the Deed of Conveyance and any release fees
and
recording costs incurred to release liens paid at settlement.
2.04. Purchaser’s
Requirements.
(a) Purchaser
agrees that it will pay to Seller, at closing, in addition to the agreed
purchase price for the Lots, any charges then in effect for connection to the
sewer and/or water system including any charges per dwelling unit for the
purpose of providing a sewer connection to the Mattawoman Interceptor or other
interceptor, which charge is currently $6,543.00 per Lot. Seller and
Purchaser acknowledge and agree that all refunds, rebates and/or credits
resulting from such payments, and all rights to seek repayment and/or refund
of
or credit against such payments, are hereby assigned to and shall be the sole
property of the Seller and shall inure to the benefit of and be repaid directly
to the Seller. Seller and Purchaser further acknowledge and agree
that any difference between the sewer connection charge applicable to the
development outside of St. Xxxxxxx and the connection fee charged on each lot
within St. Xxxxxxx, which difference currently equals $1,608, shall be the
sole
and exclusive property of Seller. This fee will be due at the time of
each closing of the Lots.
(b) Purchaser
will pay to Seller a fee of $200.00 per dwelling unit for off-site construction
of interceptors, pumping or treatment facilities. This fee will be due at the
time of each closing of the Lots.
(c) Purchaser
agrees that it will pay to the Seller (if such fees have previously been paid
by
Seller) or appropriate government unit at closing, any applicable school
construction impact fees, any off-site road fees or the like then in effect
and
imposed by any appropriate governmental unit. Seller and Purchaser acknowledge
and agree that all refunds, rebates and/or credits resulting from such payments,
and all rights to seek repayment and/or refund of or credits against such
payments, are hereby assigned to and shall be the property of the Seller and
shall inure to the benefit of and be repaid directly to the Seller. The current
charge per single family dwelling unit for the school construction impact fee
is
approximately $9,700.00, which is paid by the homebuyer as an excise tax and
the
current charge per dwelling unit for the off-site road fee is $750.00, which
will be paid to Seller or appropriate governmental unit, as set forth above,
at
closing of each Lot.
2.05 Title.
(a) Lots
sold hereunder shall be conveyed by Seller with good and marketable, fee simple
title, insurable at standard rates, free and clear of all liens and encumbrances
of any kind, except:
(1) Zoning
regulations of the County or city in which the lots lie;
(2)
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Ad
valorem taxes and assessments not then due and
payable;
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(3) The
matters set forth in Schedule B-2 of that title policy issued to Seller for
the
Property, a copy of which is attached hereto as Exhibit B and incorporated
herein by reference;
(4) Covenants,
conditions, easements and restrictions of record ordinarily recorded in the
development of residential housing developments and uniformly applicable to
all
Lots in each group or section submitted to Purchaser, and typical and customary
utility agreements and subdivision agreements, provided such agreements shall
not prevent or materially affect Purchaser’s ability to construct, market and
sell Purchaser’s standard single family homes thereon.
(5) Sewer
and water facility charges (public and private).
(6) Zoning
indentures and orders for the St. Xxxxxxx PUD, being Docket 90 and all
amendments thereto, public and private utility, stormwater management and
drainage easements and agreements, and the covenants, conditions and
restrictions of the St. Xxxxxxx PUD, including, but not limited to the
architectural approval requirements of the Planning Design Review
Board.
(b) The
Lots purchased hereunder shall be conveyed by Seller subject to the Declaration
of Easements, Covenants, Conditions and Restrictions recorded for Fairway
Village and Sheffield Neighborhoods and Fairway Village Architectural Covenants,
as such Covenants may be amended from time to time. At Closing,
conveyance of the Property to the Purchaser shall be effected by a good and
sufficient special warranty deed.
(c) Should
Seller be unable to deliver title to any Lot in accordance with the provisions
of this Agreement or any extension of time agreed upon by the parties, it is
agreed that Purchaser's liability as to any such Lot shall terminate; provided,
however, that if the defects of title are of such nature that they can readily
be remedied by legal action, such action shall be promptly undertaken by Seller,
at its expense, and the time of Closing extended for a period not to exceed
sixty (60) days for such action.
2.06 Development
by Seller. Lots shall be deemed to be developed and available for closing
hereunder when the following improvements have been installed and the following
actions have been accomplished by Seller as to the Lot(s) to be
settled:
(a) Operational
public sanitary sewer with a sewer house connection installed from the sewer
main to one foot inside the Lot line, and any and all off-site sewer extensions
installed and operational and all fees paid in full. Seller will
install the sewer house connection at a depth of not more than eight feet (8’)
at the property line.
(b) All
storm drainage and storm drainage systems as required by the appropriate
governmental authority for the Lot(s) in question, including payment of all
off-site fees and charges in respect thereto.
(c) Public
water by way of governmentally approved system serving the Lot(s) in question,
with a water house connection installed one foot inside the Lot line, and any
and all off-site extensions installed and operational and all fees paid in
full. Seller will install the water house connection at a depth of
not more than eight feet (8’) at the property line.
(d) Clearing,
grubbing and grading of streets and rights of way, and the construction of
concrete curbs and gutters, sidewalks other than those located on the Lots
and
base course paved streets and roads, including paved access to a public
thoroughfare, as required by the appropriate governmental authority for the
Property. Bonds shall be posted by Seller, as required by appropriate County
authorities, to cover the cost of final paving, other roadway improvements
and
any other items which are required by the County to be bonded, and Seller shall
remain obligated for the completion of the final course of paving following
Closing. Construct public pathways required by the County, if any.
(e) Lots
will be
cleared, grubbed and graded to + or – 0.2’, based upon U. S. HOME’s grading
plans, and balanced such that house construction can occur on each individual
Lot without the need to import or export significant (i.e. in excess of six
standard dump truck loads per Lot) material. When part or all
of the foundation, at the design elevation of a house sited on a given Lot,
cannot be placed at natural grade, Seller will supply control-fill house pads
with the following dimensions: overall length and width of the
dwelling unit and garage, plus five (5) feet on all sides. Seller
will utilize clean, controlled fill and provide compaction certifications (95%
compaction) from a geotechnical engineer chosen by Seller and reasonably
acceptable to U. S. HOME for all such fill Lots. A copy of these
certifications and daily inspection reports shall be provided by Seller to
U. S.
HOME no less than ten (10) days prior to Lot Inspection of any Lot
hereunder.
(f) Such
underground electric, telephone and cable television lines, and gas lines,
as
shall be necessary to service residential units, installed as required by the
appropriate private or public utility, to each unit shown on the final approved
plans of the Lot(s) in question, with connection stubs located at the property
line of each Lot. Gas stubs have been provided to the lots by
Washington Gas Light with the intention to use natural gas for heating and
hot
water.
(g) Street
signs, and street trees, if any, as required by appropriate governmental
authority for the Property either paid for or bonded with bonds approved by
the
appropriate governmental authority.
(h) Sediment
and erosion control measures on the Lot(s) in question for street and
utility
construction and overlot grading as required by the appropriate governmental
authority. Seller shall establish and maintain those facilities as required
by
appropriate governmental authorities. Purchaser shall provide
sediment and erosion control for house construction.
(i) Seller
shall install all recreational areas, trees and shrubbery, if any, as shown
on
the public areas of Seller's final approved plans, as soon as practical, but
not
as a condition precedent to any closing hereunder; provided, however that such
recreation areas, trees and shrubbery shall be completed in a timely manner
so
as not to delay or impede Purchaser's ability to obtain building and/or
occupancy permits for the homes to be constructed on the Lots by
Purchaser.
(j) Delivery
by Seller to Purchaser of an engineer's certificate from Xxxxxxx, Xxxxxxxx
and
Associates, project engineer, certifying in writing that the improvements in
Subparagraphs 2.06 (a) through 2.06 (f) and 2.06(h) above have been
completed in compliance with the governmentally approved plans and local
subdivision and development standards as to the Lot(s) to be
settled.
(k) Purchaser
is able to obtain a building permit from appropriate County authorities, and
upon completion of construction in accordance with the approved plans, Purchaser
is able to obtain an occupancy permit, for a typical Purchaser single-family
home of the type which Purchaser wishes to build in the
subdivision.
(l) If
VA or FHA require a bond or letter of credit, the Seller shall bond any
improvements that are Seller's responsibility and Purchaser will bond any
improvements that are Purchaser's responsibility.
(m) Seller
shall have prepared and recorded appropriate documents to subject the Lots
to
the Declaration of Easements, Covenants, Conditions and Restrictions for Fairway
Village and Sheffield Neighborhoods, which will, upon submission, be approved
for FHA/VA financing.
(n) Provide
survey controls necessary for construction stakeout and any permanent monuments
required by law. The Seller shall install all property markers at the earliest
practical time in accordance with governmental regulations or post a bond as
required. The Seller will assign to Purchaser whatever warranties the Seller
obtains from its engineers.
(o) These
development obligations shall survive the settlement on any or all of the
Lots.
(p) Seller
represents and warrants that water and sewer services shall be furnished by
the
Xxxxxxx County Department of Utilities or such other legal entity
responsible for furnishing water and sewer services and such services shall
be
available to Purchaser for each dwelling unit, as and when required by
Purchaser, in accordance with the rates, rules and regulations then in
effect.
(q) (i) Seller
is including in the sale price of the Lots as set forth herein all amenities,
including but not limited to parks, playgrounds, school sites and neighborhood
centers with swimming pool. The Seller will keep the Purchaser
informed as to the projected start date of any such center. In the interim,
the
Seller will arrange for all of the Purchaser’s homebuyers to have access and
full use of a neighborhood facility until the Sheffield Neighborhood Center
is
completed. A fee for maintenance of community facilities and the use of the
interim facility will be applicable in accordance with any assessments applied
as specified herein, i.e. no more than 75 cents per hundred dollars of tax
valuation of property annually.
(ii) Seller
will sell, donate or dedicate to the appropriate County authority all school
sites, i.e. one elementary and one high school site required for Fairway
Village, as soon as practical, but not as a condition precedent to any Closing
hereunder; provided, however, that such school sites shall be sold, donated
or
dedicated in a timely manner so as not to delay or impede Purchaser's ability
to
obtain building and/or occupancy permits for the homes to be constructed on
the
Lots by Purchaser.
When
the
foregoing have been accomplished by Seller as to any Lot or group of Lots,
which
Seller intended to sell as a part of the Lots hereunder to the Purchaser, Seller
shall provide written notice thereof to Purchaser, and closing shall occur
in
the manner and time periods required by this Agreement.
2.07 Purchaser's
Responsibilities. Purchaser will be responsible for the
following:
(a) Construct
and pay all costs for water, sewer, gas, telephone, cable TV, and electric
installation from the Seller improvements, as shown on the final plans approved
by the County, required by Section 2.06(f) to the dwelling and all charges
of
tap-in connection to the sewer and water systems as described in Section 2.06(a)
and (c). Purchaser will use its best efforts to provide gas to each
house to the fullest extent possible.
(b) Perform
final grading for dwelling. Provide sediment control measures as may be required
by the County for home construction on the lots only.
(c) Construct
sidewalks (on lot only) as may be required by the County, adjacent to the
dwelling unit or as required by the final plans for the Property, including
those sidewalks within street rights-of way adjacent to the Lots.
(d) Provide
and install all mailboxes onto provided mailbox structures as required by local
Post Office and the Fairway Village Planning and Design Review
Board. Purchaser will contact St. Xxxxxxx Community, LLC, Land
Development Division, at least two weeks prior to a move-in where a mailbox
stand is needed. Provide a light fixture in the front yard of each
unit, such fixture as approved by the Design Review Board, or at the option
of
the Seller pay Two Hundred Dollars ($200.00) per unit towards a street light
program.
(e) Keep
the Lots clean of paper and construction debris on a continuing basis and do
not
store construction materials behind the curb in the road right of
way.
(f) Sediment
and erosion controls on individual building Lots as required for construction
of
a dwelling on that Lot. Sediment control measures must be installed on the
Lot
only and not within the road right of way.
(g) Enter
the Lots through the construction entrance only, provided a construction
entrance is maintained by Seller.
(h) Repair
any damage to the curb and gutter or street which results from Purchaser's
construction activity pursuant to Subparagraph (k) below and clean the street
of
dirt or other materials which results from Purchaser's activity.
(i) Purchaser
shall pay all fines imposed by Maryland Department of the Environment due to
failure of Purchaser to comply with Erosion and Sediment Control Ordinances
caused by Purchaser's construction activities, whether such fines are assessed
against Purchaser and/or Seller. Purchaser will defend and indemnify Seller
for
any and all costs and expenses (including reasonable legal fees and court costs)
in any action arising from actions taken by the Maryland Department of the
Environment due to failure of Purchaser to comply with Erosion and Sediment
Control Ordinances
(j) Purchaser
will preserve trees designated to be saved as shown on the Final Development
Plan.
(k) Prior
to each settlement hereunder, representatives of Seller and Purchaser shall
inspect the Seller's improvements relating to that Lot or Lots and agree on
a
list of damage deficiencies (Lot Inspection Report) a copy of which is attached
as Exhibit C, for correction or completion by Seller. Seller shall complete
or
correct all items listed on the Lot Inspection Report within 30 days following
the date thereof. Responsibility for any damage to said improvements
beyond the Lot Inspection Report, not caused by Purchaser's agents or employees,
that occurs after said inspection shall be borne by Seller. Any
damage caused by Purchaser’s agents or employees shall be repaired by Purchaser,
on terms as follows: Said responsibility shall include, but not be
limited to, repair or replacement of such damage to the satisfaction of the
appropriate governmental authority. Purchaser shall commence said repairs within
twenty (20) days of written request by Seller. Notwithstanding the above, Seller
shall remain responsible for faulty workmanship or defects in any of Seller’s
construction work, including but not limited to road subgrade, pavement and
utility construction. After Purchaser has obtained a final inspection for all
houses built on Lots purchased by Purchaser under this Agreement, at Purchaser's
request, representatives of Seller and Purchaser shall again inspect the total
improvements relating to those lots and agree on a list of repairs or
replacements (using the Lot Inspection Report attached hereto as Exhibit C)
to
be accomplished by Purchaser at its expense. Responsibility for any damage
to
said improvements beyond the Lot Inspection Report shall be borne by the party
causing such damage, upon a specific showing that said party, by its employees,
agents or contractors caused such damage. All repairs required of Purchaser
hereunder shall be to the reasonable satisfaction of the Seller, provided,
however that if Seller fails to notify Purchaser in writing of any deficiencies
in Purchaser’s repair work within thirty (30) days following Purchaser’s notice
to Seller that Purchaser has completed all such repairs, then Purchaser's
responsibility for repairs shall be deemed satisfied and Seller shall be
completely and solely responsible for satisfying the appropriate County
authorities and obtaining a release of Seller's bonds.
In
the event that Seller and Purchaser
are unable to agree as to the cause of and/or the responsibility for any such
damages, the dispute shall be submitted to an engineering firm mutually agreed
upon by both parties to act as arbitrator. The decision of the arbitrator shall
be binding upon both Seller and Purchaser and shall be enforceable by any
Maryland court having jurisdiction.
(l) Purchaser
will maintain a furnished model in the subdivision. The model will be
open at published hours to be determined by Purchaser. Purchaser has
the option to maintain additional models if desired.
(m) Purchaser
represents and warrants that its intention in acquiring the Property is for
the
purpose of building and selling single-family units.
(n) The
Seller advises Purchaser and Purchaser agrees to and shall advise all purchasers
of lots from the builder, that the County has the right and authority to subject
said lots to uniform front-foot benefit charges, in accordance with Xxxxxxx
County policies and regulations. In addition, Purchaser shall provide
all homebuyers with the Xxxxxxx County required notice of the now applicable
School Construction Excise Tax.
(o) Purchaser
agrees that any dwelling units constructed by it on the aforesaid Lots shall
be
in accord with the standards, specifications, rules and regulations of all
applicable governmental agencies.
(p) Architectural
Approval.
(i) Purchaser
shall submit to the Fairway Village Planning Design and Review Board for its
written approval, floor plans, elevations, plans for styles and exteriors,
for
all new dwelling units proposed to be constructed by the Purchaser on the Lots
and for any other structures from which sales of dwelling units will be made.
The Purchaser acknowledges that the Fairway Village Planning and Design Review
Board or other committee designated by that Board, has the absolute right to
approve or disapprove in its sole but reasonable discretion any and all site
plans and architectural plans for structures to be constructed in the Fairway
Village.
(ii) Written
approval or disapproval of plans, elevations and other materials submitted
by
the Purchaser to the Planning and Design Review Board shall be delivered to
the
Purchaser within thirty (30) days after submission of such plans by the
Purchaser. In the event that the Fairway Village Planning and Design Review
Board or any committee designated by that Board shall fail to deliver written
approval or disapproval of the Purchaser's plans within thirty (30) days after
submission of such plans to the Board, it shall be conclusively presumed that
the plans submitted have been approved.
(q) Purchaser
agrees that in its sales program, advertising, publicity and public relations
campaign, copy for newspapers, radio, television, billboard and other
advertising media and in brochures, circulars and the like, the name and logo
“St. Xxxxxxx” shall be publicized in a prominent manner, and that all
advertising copy shall be submitted to and approved by Seller prior to being
used by Purchaser. Provided, however, that Purchaser reserves the right to
place
advertisements which feature more than one Purchaser community and this
paragraph shall not apply to such type of advertising.
(i) Purchaser
agrees that any advertisement for the sale of housing constructed by it at
St.
Xxxxxxx will adhere to the following restrictions:
(ii) All
advertising in any communications medium or any printed matter made available
to
the public shall contain the equal housing opportunity logo, statement or slogan
of the Department of Housing and Urban Development (37 F.R. 6702, Table
II).
(iii)
Seller shall provide the necessary signs from the road to the model home
site.
(r) Purchaser
agrees that all of the Lots conveyed under this Agreement are subject to all
restrictive covenants referred to herein, as such covenants may be amended
from
time to time; provided that no such amendment shall have a material adverse
effect on Purchasr’s ability to construct, market and sell its proposed homes on
the Lots. The covenants will contain the power of assessment in the Sheffield
Neighborhood Association, Inc., its successors and assigns. Such assessment
shall be prorated between the Purchaser and Seller as of the date of settlement.
The assessment shall not be more than 75 cents per hundred dollars of tax
valuation of the Property annually.
(s) Purchaser
agrees that prior to and during the period in which a home or homes on the
Property are being constructed, Purchaser shall permit Comcast, or its purchaser
or assignee, and its agents, employees and contractors, to lay CATV cable in
the
same trenches opened for the running of electric lines and, at reasonable times
and upon reasonable notice, to enter the premises and pre-wire the premises
for
cable television service. The right of access granted hereby shall be for the
benefit of and exercisable by Comcast, or any successor or assignee thereto
succeeding to the ownership or operation of its cable television system in
St.
Xxxxxxx. Seller agrees to indemnify Purchaser for any claims filed against
Purchaser by Comcast.
(t) Purchaser
agrees that neither it nor anyone authorized to act for it will refuse to sell,
after the making of a bona fide offer, or refuse to negotiate for the sale
of or
to otherwise make unavailable or deny a Lot covered by this Agreement to any
person because of race, color, religion, sex, national origin, family status,
handicap, age, or other discriminatory basis.
(i) Seller
and Purchaser agree that any restrictive covenant on the Property relating
to
race, color, religion, sex, or national origin, or other discriminatory basis
is
recognized as being illegal and void and is specifically
disclaimed.
2.08 Removal
of Debris. Each party shall remove all of its equipment, material and all
debris resulting from their respective development.
2.09 Common
and Recreational Areas and Open Space. The parties hereto recognize that
provisions may have to be made for the maintenance and management of common
areas, open space, and recreation facilities and areas. It will be Seller's
responsibility to establish such provision through an overall community
association and such other appropriate means as Seller may elect. Purchaser
agrees to be a member of any such association while Purchaser owns Lots within
such association's jurisdiction, and to otherwise cooperate fully with the
establishment and observance of such provisions for the maintenance and
management of the common and recreational areas and open space. Purchaser also
agrees to make all sales subject to such approved provisions as may be
applicable thereto.
2.10 Seller's
Representations and Warranties. The Seller represents and warrants to
Purchaser that, as of the date of execution and delivery of the Agreement and
as
of the date of each closing:
(a) The
Seller (i) has the full right, power and authority to enter into this Agreement;
(ii) has the full power and authority to bind all persons having any interest
in
the Property (excluding any mortgagee of the Property and any party secured
by
any deed of trust encumbering the Property) to the obligations of the Seller
set
forth in this Agreement; (iii) has obtained all consents and approvals necessary
to make this Agreement binding upon the Seller and to permit performance by
the
Seller of the terms and provisions of this Agreement.
(b) This
Agreement does not violate the terms of any other agreement to which the Seller
is a party or by which the Seller or the Property is bound.
(c) The
Seller is not a "foreign person" within the meaning of the Internal Revenue
Code
and the transaction contemplated hereby does not constitute a disposition of
a
U.S. real property interest by a foreign person, and Seller will sign an
affidavit to this effect at each Closing.
(d) Seller
has good and marketable title to the Property subject only to the matters
described in Sections 2.05(a)(1)-(6).
(e) There
is no pending, nor, to the best of Seller’s knowledge, threatened condemnation
affecting the Property or any portion thereof.
(f) Seller
has not received notice of violation of any laws, ordinances, regulations,
statutes, rules or restrictions pertaining to and affecting the
Property.
(g) There
are no legal actions, suits or other legal or administrative proceedings,
pending, that affect the Property or any portion thereof.
(h) Except
as disclosed (i) elsewhere in this Agreement or (ii) in the public records
(including but not limited to zoning records), no written or verbal commitments
have been made to any governmental authority, utility company, school board,
church or other religious body, or any homeowners association, or to any other
organization, group, or individual, relating to the Property which would impose
an obligation upon Purchaser or their successors or assigns to make any
contribution or dedications of money or land or to construct, install, or
maintain any improvements of a public or private nature on or off the
Property.
(i) There
has been no excavation, dumping or burial of any refuse materials or debris
of
any nature whatsoever on the Property and to the best of Seller’s knowledge,
there are no Hazardous Materials (as defined below) on the Property that would
subject Purchaser to any liability under either Federal or state laws,
including, but not limited to, the disposal of any foreign objects or materials
upon or in the Property, lawful or otherwise, and without limiting the
generality of the foregoing, to the best of Seller’s knowledge: (1)
the Property is not now and has never been used to generate, manufacture,
refine, transport, treat, store, handle, dispose, transfer, produce, process
or
in any manner deal with Hazardous Materials (as that term is hereinafter
defined); (2) no Hazardous Materials have ever been installed,
placed, or in any manner dealt with on the Property; and (3) no owner of the
Property or any tenant, subtenant, occupant, prior tenant, prior subtenant,
prior occupant or person (collectively, “Occupant”) has received any notice or
advice from any governmental agency or any Occupant with regard to Hazardous
Materials on, from or affecting the Property. The term “Hazardous
Materials” as used herein includes, without limitation, gasoline, petroleum
products, explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, polychlorinated biphenyls or related
or
similar materials, asbestos or any material containing asbestos, or any other
substance or material as may be defined as a hazardous or toxic substance by
any
Federal, state or local environmental law, ordinance, rule, or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601,
et
seq.), the Hazardous Materials Transportation Act, as amended (42 U.S.C. Section
1801, et seq.) the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Section 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Section 7401,
et seq.) and in the regulations adopted and publications promulgated pursuant
thereto.
(j) To
the best of Seller’s
knowledge, no part of the Property has been designated as inhabited by any
endangered species by any governmental agency having jurisdiction.
(k) Seller
has not filed, voluntarily or involuntary, for bankruptcy relief within the
last
year under the laws of the United States Bankruptcy Code, nor has any petition
for bankruptcy or receivership been filed against Seller within the last
year.
(l) Purchaser
is the sole contract purchaser of the Property, including all surface and
mineral estates.
(m) Seller
has not received notice, either oral or written, and has no knowledge that
any
governmental or quasi-governmental agency or authority intends to commence
construction of any special or off-site improvements or impose any special
or
other assessment against the Property or any part thereof.
(n) There
are no oral or written service, maintenance, landscaping, security, management
or other similar contracts which affect the operation or maintenance of the
Property.
(o) There
are no leases, oral or written, affecting the Property or any part
thereof.
(p) To
the best of Seller’s knowledge, there is no annexation of the Property into any
city or town currently in process and contemplated.
(q) There
are no adverse or other parties in possession of the Property, or any part
thereof.
(r) The
mineral or other subsurface estates have not been severed from the surface
estate.
2.11 Purchaser's
Representations and Warranties. Purchaser represents and warrants
to the Seller that, as of the date of execution and delivery of this Agreement
and as of the date of each Closing:
(a) Purchaser
(i) has the full right, power and authority to enter into this Agreement; and
(ii) has obtained all consents and approvals necessary to make this Agreement
binding upon Purchaser and to permit performance by Purchaser of the terms
and
provisions of this Agreement.
(b) This
Agreement does not violate the terms of any other agreement to which
Purchaser is a party or by which Purchaser or its property is
bound.
(c) Purchaser
will promptly apply for and diligently pursue its application for building
and
other permits.
2.12 Real
Estate Commissions. Each party represents and warrants to the
other that it has not used the services of any real estate agent, broker or
finder with respect to the transaction contemplated herein, and each party
agrees to defend, indemnify and hold the other party harmless from any claims
for brokerage commissions resulting from any agreement between any broker and
the indemnifying party.
2.13. Default.
(a) U.
S. HOME's Default. If U. S. HOME is the defaulting party, after notice given
and
after a ten (10) day cure period, because of the difficulty in calculating
damages, the parties agree that Seller's sole and exclusive remedy at law if
the
Purchaser fails to meet the pace of take downs as described in Section 1.03,
or
any other default covered in this contract, the Seller shall have the right
to
terminate this Agreement and retain the Deposit as full liquidated damages
as
Seller’s sole remedy. Upon any such termination, neither party shall
have any further rights or obligations under this Agreement, except with respect
to Lots previously purchased by U.S. HOME hereunder. Without
limitation to the foregoing, upon such termination, Seller shall have the right
to sell and convey any one or more Lots not previously purchased by U.S. HOME
to
any third party home builder or developer of Seller’s selection.
(b) Upon
any default hereunder by Seller, after notice given and after a ten (10) day
cure period, if Seller fails to cure or correct the default, U.S. HOME shall
have available all remedies at law or in equity, including, without limitation,
the right to specific performance of this Agreement.
In
any action or proceeding brought to
enforce the provisions of this Agreement by either party, in addition to all
other rights and remedies set forth above, the prevailing party shall be
entitled to an award of its costs incurred in connection with such action or
proceeding, including, without limitation, all of its reasonable attorney’s
fees.
For
purposes of this Agreement, a default under this Agreement by Seller shall
also
constitute a default by Seller under that Development Agreement, dated March
4,
2004, between Seller, as "Developer" thereunder, and Purchaser, as "Builder"
thereunder (the "Development Agreement"), and a default under the Development
Agreement by either party shall also constitute a default under this Agreement
by that party; however, a default under this agreement by Purchaser shall not
constitute a default by Purchaser under the Development Agreement.
2.14 Notices.
All notices authorized or required herein shall be in writing and shall be
considered given when delivered if hand delivered, one (1) business day
following deposit with a national overnight courier service, or three (3)
business days following deposit, postage prepaid, with the U.S. Postal Service,
by registered or certified mail, return receipt requested, to Seller or U.
S.
HOME at their respective addresses as set forth below (or any substitute address
if notice of substitution is given in accordance with this
section):
SELLER:
St. Xxxxxxx Community, LLC
000 Xxxxxxxxx Xxxxxxx Xxxxxx
Xx.
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
With
copy
to:
Xxxxxxx, Bowling & Xxxxx, P.A.
X.X. Xxx 000
Xx
Xxxxx, XX 00000
Telecopy
No. 000-000-0000
Attention: Xxxxxxx
X. Xxxxx, Esq.
PURCHASER: U.
S. HOME CORPORATION
00000
Xxx
Xxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx
X. Xxxxxx, Division President
With
a copy
to:
U.S. Home Corporation
Legal
Department
00000
Xxxx Xxxx
Xxxxxxx,
XX 00000
Telecopy
No.: 000-000-0000
And
to: Walsh,
Colucci, Xxxxxxx, Xxxxxx & Xxxxxx, P.C.
00000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Telecopy
No.: 000-000-0000
Attention: Xxxxx
X. Xxxxxxxxxx, Esq.
2.15 Headings.
The headings of the paragraphs herein are for convenience only and shall not
affect the meanings or interpretations of the contents thereof.
2.16 Complete
Agreement. This Agreement represents the complete understanding between the
parties hereto and supersedes all prior negotiations, representations or
agreements, whether written or oral, as to the matters described herein. This
Agreement may be amended only by written instrument signed by both parties.
No
requirement, obligations, remedy or provision of this Agreement shall be deemed
to have been waived, unless so waived expressly in writing, and any such waiver
of any provision shall not be considered a waiver of any right to enforce such
provision thereafter. This Agreement may be executed simultaneously in one
or
more counterparts, each of which shall be deemed to be an original, but all
of
which together shall constitute one and the same instrument. This Agreement
shall be construed according to the laws of the State of Maryland and
uncertainties shall not be construed against the drafter.
2.17 Severabilitv.
If any provision of this Agreement shall be held violative of any applicable
law
or unenforceable for any reasons, the invalidity of unenforceability of any
such
provision shall not invalidate or render unenforceable any other provision
hereof, which shall remain in full force and effect.
2.18 Survival.
The covenants, agreements and conditions herein contained shall survive
recordation of the Deeds of Conveyance and shall inure to the benefit of and
bind the successors and assigns of the parties hereto.
2.19 Assignment
of Agreement. U. S. HOME and Seller shall not have the right to assign this
Agreement without the prior written consent of the other party, which shall
not
be unreasonably withheld. In considering an assignee, each party shall be
entitled to adequate assurances of the assignee's financial capability to
perform under this Agreement and the assignee's ability to physically perform
under this Agreement. And purported assignment of this Agreement in violation
hereof shall be voidable at the option of the other
party. Notwithstanding the above, Purchaser shall have the right to
assign this Agreement, without the Seller’s approval, to Lennar Corporation
(Purchaser’s corporate parent) or to any affiliate of Lennar Corporation or
Purchaser. Upon any such assignment, the assignee shall become the
Purchaser for all purposes of this Agreement.
2.20 Authority.
Each signer of this Agreement warrants to the other party that he or she has
full authority to execute this Agreement.
2.21 Time. Time
is of the essence with respect to each and every provision of this
Agreement.
(SIGNATURES
APPEAR ON FOLLOWING PAGE)
IN
WITNESS WHEREOF, the Parties by their respective duly authorized officers,
have
executed this agreement and affixed their respective corporate seals hereto,
the
day and year first above written.
PURCHASER:
U.
S. HOME
CORPORATION
By: /s/ Xxxxxx X.
Xxxxxx
Name:
Xxxxxx X.
Xxxxxx
Its:
Division
President
Date:
March 4, 2004
SELLER:
ST.
XXXXXXX
COMMUNITY, LLC
By: /s/ Xxxxx X. Xxxxx
Xxxxx
X. Xxxxx, Chairman of the
Management Committee
Date: March 4, 2004