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HomeMy WebLinkAboutFOXFIELD PURCHASE SALE OF REAL ESTATE STATE OF GEORGIA ) ) COUNTY OF RICHMOND ) AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE THIS A9~~~NT FOR THE PURCHASE AND SALE OF REAL ESTATE is dated this ~~ October, 2006, and is made among Augusta, Georgia, a political subdivision of the State of Georgia, hereinafter referred to as the uCity", the Downtown Development Authority of the City of Augusta, a public body corporate created and organized pursuant to the Downtown Development Authorities Law (O.C.G.A. ~36-42-1, et seq.), herein referred to as the uSeller" and The Foxfield Company, a Florida corporation, herein referred to as the uPurchaser." RECITALS: A. Seller is currently or as of the date of closing (the uClosing") by virtue of its impending purchase from the City will be the owner of all of the fee simple interest in and to a certain tract or parcel of land located in the State of Georgia, County of Richmond and City of Augusta, as more particularly described on uExhibit A" attached hereto and by reference made a part of hereof, together with all road, utility and other easements, rights-of-way and appurtenances thereto (the uProPerty"). The Seller and the City have also agreed regarding certain post-closing matters benefiting the ProPerty. B. Seller has agreed to sell the Property to Purchaser arid' Purchaser has agreed to purchase the same, subject to and upbn the terms and conditions set forth in this Agreement. The Seller and the City have agreed to Perform or to cause to be Performed, as the case may be, the post-closing matters described herein for the Purchaser, and the Purchaser desires that they do so as a part of the consideration for the purchase of the ProPerty. AGREEMENT: NOW, THEREFORE, in consideration of the mutual covenants of the parties herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, Seller and Purchaser agree as follows: 1 1. Property: Seller agrees to sell and convey the ProPerty to the Purchaser and Purchaser agrees to purchase the same from the Seller pursuant to the terms and conditions of this Agreement. Such conveyance shall include all rights, privileges, easements and appurtenances appertaining to the Property, incl uding but not lirni ted to all of Seller's right, ti tle and interests in any adjacent streets, roads, alleys, rights of way, condemnation awards, utility allocations, beneficial agreements with the City and any governmental permits or approvals. 2. Purchase Price and Deposi t: The purchase price to be paid by the Purchaser to the Seller for the Property is the sum of $1,850,000.00. The purchase price shall be paid as follows: (a) Upon execution of this Agreement by Seller, Purchaser shall deposit the sum of Five Thousand and no/l00 Dollars ($5,000.00) (the uEscrow Deposit") to be held in escrow by Sherman & Hemstreet, LLC, Realtors, of Augusta, Georgia (the uEscrow Agent") in escrow until Closing, subject to the provisions relating to Escrow Agent in this Agreement. The Escrow Deposit shall be applied to the purchase price at Closing. (b) The balance of the purchase price shall be paid in cash or other immediately available funds at Closing. 3. Purchaser's Due Diligence: The Due Diligence period described herein is to allow the Purchaser to investigate the Property in all respects to enable the Purchaser to determine wi thin its sole and absolute discretion that the Property is suitable for the development plans of the Purchaser. (a)Delivery of Documents: Seller shall deliver to Purchaser within ten business (10) days after the effective date (as herein defined) of this Agreement, copies of the following documents, if any, which Seller has in its possession relating to the Property: Seller's most current title insurance policies; any boundary surveys and any topographic maps; the most recent real estate tax bills and any subsequent proPerty reassessment; copies of any and all governmental restrictions, regulations, easements or requirements in the hands of the Seller which, to Seller's knowledge, may affect the Property or its development. (b) Physical Inspection: Seller hereby grants Purchaser and its agents a license to enter the Property for the purpose of 2 conducting surveys, physical inspections, soil, environmental and other tests and examinations Purchaser may deem appropriate. Within reasonable time after such entries, Purchaser shall restore the Property to as nearly as possible its prior condition, subject, however, to any disturbances, etc. to the ProPerty caused by Historic Augusta in its archeological investigation, as described herein. (c) Due Diligence: The uDue Diligence Period" shall be a 90 day period commencing on the effective date of this Agreement. During the Due Diligence Period, Purchaser may conduct studies and incur expenses to confirm the feasibili ty of the Property for Purchaser's intended use. These studies may include, but not limited to: title examination, boundary survey, topographic mapping, soil and engineering test analyses, environmental examinations and reports and schematic building design studies as may be deemed necessary or desirable by Purchaser. Purchaser acknowledges that Historic Augusta, Inc. will, with the permission of the Seller, conduct or cause to be conducted an archaeological investigation of the Property. Such investigation shall take place concurrently with the Due Diligence Period and shall not unreasonably interfere with the investigation of the Property by the Purchaser. Seller shall cause Historic Augusta to complete its archeological investigation and to vacate the Property prior to the end of the Due Diligence Period. Purchaser shall make all surveys, inspection reports, market analysis, and other tests obtained available to the Seller upon request. (d) Indemnification: Purchaser indemnifies and holds Seller harmless from and against loss or damage which Seller may incur and any and all liens that may arise as a resul t of Purchaser's activities or the activities of Purchaser's agents, representatives or designees on the Property and against any and all claims for death or injury to persons or prOPerties arising out of or connected with Purchaser's (or its agents, representatives or designees) going upon the Property pursuant to provisions of this paragraph 3 or otherwise, and against all costs and expenses and liabili ties occurring in, or in connection wi th, any such claim or proceeding brought thereon, including, without limitation, court costs and reasonable attorney's fees. This indemni ty shall survi ve the Closing or any termination of this Agreement. 4. Purchaser Termina tion : If during the Due Diligence Period the should determine, in the exercise of its sole and 3 absolute discretion, that the Property is unsatisfactory or unacceptable to it for any reason whatsoever or that the Property is unsuitable for Purchaser's intended use, the Purchaser shall have the right by written notice to Seller to terminate this Agreement prior to the expiration of the Due Diligence Period in which event this Agreement, with the exception of the indemni ty contained in paragraph 3 (d), shall become null and void and of no further force and effect at law or in equity. Except as otherwise provided herein, in the event the Purchaser fails to give Seller written notice of termination wi thin the Due Diligence Period, the Purchaser shall be deemed to have waived its right to terminate this Agreement for any reason other than a default by Seller. 5. Seller's Cooperation: Prior to Closing the Seller agrees to cooperate reasonably with the Purchaser for any necessary rezoning of the Property and for Purchaser's land use permi t applications or other Permits or permissions. 6. Closing: Closing shall be held on the earlier of thirty days following the expiration of the Due Diligence Period on a date SPecified by the Purchaser, with prior notice to Seller of not less than ten (10)days. Provided, however, in the event that the Purchaser's investigation of the Property reveals environmental contamination or other matters that require remediation under applicable law or regulation, Closing will be delayed until such time as such remediation is complete. The Closing shall take place at the offices of Purchaser's counsel in Augusta, Georgia or in such other place as the parties may agree to. At Closing the Escrow Agent shall pay over the Escrow Deposit to the Seller and the Purchaser shall pay to Seller the balance of the Purchase Price for the Property as set forth in paragraph 2 above. Upon payment of the Purchase Price, the Seller shall execute and deli ver to the Purchaser a limi ted warranty deed for the Property. The title so conveyed shall be a fee simple, free of all liens and encumbrances except those specifically accepted or consented to by Purchaser pursuant to paragraph 7 hereof. Ti tIe shall be such as will be insurable both as to fee and marketability by a licensed title insurance company selected by Purchaser at its standard rates. If the Closing Date falls on a Saturday, Sunday or holiday, it shall be deemed extended until the next business day. 7 . Ti tIe Report and PIa t of Survey: Diligence Period the Purchaser may obtain, at owner's title insurance commitment covering the Wi thin the Due its expense, an Property from a 4 licensed title insurance company selected by the Purchaser (the uTi tIe Company") and a current plat of survey. The Purchaser shall give written notice to the Seller within the Due Diligence Period listing those title exceptions and matters revealed by the plat of survey which are not acceptable to the Purchaser. In the event of such notification, Seller shall have thirty (30) days from the date of such notification to remove or correct such objections prior to Closing. No subsequent actions affecting the ti tIe by encumbrances after the Due Diligence Period shall be undertaken without prior written approval by the Purchaser, which shall not be unreasonably withheld. If Seller fails to remove or correct such objections, or to remove or correct the objection prior to Closing, Purchaser shall have the right, at its option, either to accept title subject to such objections or to terminate this Agreement, in which event Seller shall cause the Escrow Agent to return to Purchaser any and all amounts paid by Purchaser and in such event neither party shall have any further liability or responsibili ty unto the other arising out of this Agreement. 8. Risk of Loss: The ProPerty shall be held at the risk of the Seller until legal title has passed and possession has been given exclusively to the Purchaser. If prior to Closing any part of the Property is destroyed by any cause or taken by eminent domain, Purchaser may terminate this Agreement and receive an immediate refund of the Escrow Deposit, or obtain a mutually agreeable proportionate reduction in the purchase price. 9. Documentary Stamps and Transfer Taxes: All documentary stamps and transfer taxes relating to the conveyance of the Property to the Purchaser shall be paid by the Seller. 10. Real Estate Taxes: Real estate taxes and similar public charges against the Property, which are payable on an annual basis shall be adjusted between the parties as of the date of Closing and assumed and paid thereafter by the Purchaser. 11. Possession: Possession of the Property shall be given to the Purchaser at Closing free of any tenancies. 12. Real Estate Commissions and other fees: (a) Sherman & Hemstreet, LLC and Cora Bett Thomas Real ty are the Brokers of record and shall be paid a commission at Closing by the Seller from the sales proceeds of 8.00 percent of 5 the purchase price, to be split equally between them. (b) The Purchaser shall pay the Seller a development fee of $37,000.00 at Closing. 13. Notices: All notices required or provided in this Agreement if hand delivered or transmitted by commercial overnight courier or other nationwide air courier, shall be deemed to have been received on the date actually received if by hand delivery and on the date delivered to the courier if by courier. If the United States mails are used, notices shall be sent certified or registered mail, return receipt requested, postage prepaid and shall be deemed to have been received on the date deposited in the United States mails and addressed as follows: TO: PURCHASER The Foxfield Company 108 Traders Cross Suite 102 Bluff ton, SC 29910 COpy TO: James E. Blanchard 237 Davis Road Augusta, GA 30907 To Seller: Downtown Development Authority 416 Eighth Street Augusta, GA 30901 COPY TO: Wm. Byrd Warlick Warlick, Tritt, Stebbins & Hall, LLP 699 Broad Street - Suite 1500 Post Office Box 1495 Augusta, GA 30903-1495 Each party shall have the right to designate a different address for the receipt of notices other than that set forth above, provided the new party's new address is contained in a written notice given to the other party. 6 14. Seller's Representations and Warranties: As a material inducement to Purchaser's execution and performance of this Agreement, Seller makes the following representations and warranties all of which are true and complete as of the date of this Agreement, shall be true and complete as of the date of Closing, and shall survive the Closing: (a) Authorization: Seller has the authority to enter into, perform and consummate under this Agreement, without any qualification, necessity of the consent of any party. full right and its obligations and without the (b) Non-contravention: The obligations and undertakings of Seller under this Agreement do not and will not violate or conflict with any agreement to which Seller is a party or by which Seller or the Property is bound. (c) Judicial Actions: There are no bankruptcies, actions or proceedings pending, Seller's knowledge and belief, threatened affecting any portion of the Property development. suits, judgments, or to the best of or contemplated, or its use and (d) Notice of Violation: Seller has not received any notice of any violation of any ordinance, regulation, law or statute of any governmental agency pertaining to the Property or any part thereof. (e) Public Proceedings: No actions or proceedings are pending for the condemnation of any part of the Property, or of any adjacent property owned by Seller, or for any acquisition in lieu thereof and, to the best of Seller's knowledge and belief, no such actions or proceedings are threatened or contemplated. (f) Assessments: There are no encumbrances or special assessments, either pending or confirmed, for sidewalks, paving, water, sewer or other improvements on or adjoining the Property. (g) Environmental Matters: To the best knowledge of the Seller the Property (including land, surface water, ground water and improvements) is now and will at Closing be free of all Hazardous Substances, which term shall include contamination, without limitation, other than for matters caused by Purchaser or its agents, (i) any U hazardous was te , underground storage tanks, petroleum, regulated substance or used oil", as defined 7 by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. S 6901, et seq.) As amended, or by any regulations promulgated thereunder; (ii) any uhazardous substance" as defined by the Comprehensive Environmental Response Compensation and Liability act of 1980 41 U.S.C. S 9601 et seq.,) as amended, or by any regulations promulgated thereunder (including, but not limited to asbestos and radon); (iii) any uoil or other hazardous substances" as defined by the Oil and Hazardous Substances Control Act of 1976: (iv) the presence of any substance on, in or under the Property, is prohibited by any law similar to those set forth above; and (v) any other substance which by law, regulation, ordinance or guidance (whether published or unpublished) requires sPecial handling in its collection, storage, treatment, or disposal thereof. (h) Boundary Disputes: There is no dispute concerning the location of property lines or corners for the Property. (i) Latent Conditions: Seller is unaware of any latent defects regarding the Property or other condi tions which would make Purchaser's proposed use and development impractical, extraordinarily expensive, or subject to material delays. (j) Liens, Encumbrances and Restrictions: There are no liens, reservations, restrictions, easements (except easements for the installation and maintenance of utili ties), or other encumbrances on the Property which in any way limi t or impair the use of the Property for the purposes contemplated by Purchaser. (k) Non-Foreign Status: Seller is not a foreign person as defined in the Federal Foreign Investment in Real Estate Act of 1980 and the Tax Reform Act of 1984, as amended. If requested by Purchaser, Seller shall execute a uNon-Foreign Affidavit" at Closing certifying the foregoing. 15. Rights and Remedies: (a) Default by Seller: In the event that Seller shall fail or refuse to consummate the transactions contemplated under this Agreement for any reason except Purchaser's default, Purchaser shall have all rights and remedies available at law or in equity including without limitation the right to enforce specific performance of the Agreement, and in any such action shall also have the right to recover damages suffered by reason of the delay in the acquisition of the Property or to terminate this 8 Agreement, reserving all claims for money damages, in which event the Escrow Deposit shall be immediately returned to Purchaser. No delay or omission in the exercise of any right or remedy of Purchaser upon any breach by Seller shall impair any right or remedy or be construed as a waiver. (b) Default by Purchaser: In the event that Purchaser should fail to perform its obligations to close, except as permitted under this Agreement, the Seller, at its sole and exclusive remedy, shall receive the Escrow Deposit, as full liquidated damages, and not as a penalty. It is agreed that Seller's damage would be difficult to ascertain and the Earnest Money then on deposit with Escrow Agent constitutes the fair and reasonable forecast thereof. Seller waives and releases any right to, and covenants that it shall not, sue Purchaser for specific performance or for damages. (c) Enforcement Costs: Should either party employ an attorney or attorneys to enforce any of the provisions of the Agreement, or to recover damages for the breach of this Agreement, then the non-prevailing party in any final judgment agrees to pay all reasonable costs, charges and expenses, including attorneys' fees, expended or incurred in connection therewith. 16. Miscellaneous Provisions (a) Execution of Agreement: The effective date (Effective Date) of this Agreement shall be the date when this Agreement has been executed by all parties. To facilitate execution, this Agreement may be executed in as many counterparts as may be required. It shall not be necessary that the signatures on behalf of all parties appear on each counterpart hereof. All such counterparts shall consti tute collectively a single agreement. (b) Construction of Agreement: This written Agreement constitutes the entire and complete agreement among the parties wi th respect to the Property, and supersedes any prior oral or wri tten communication between them. This Agreement shall be governed by and construed in accordance with the laws of the State where the Property is located. If any provision of the Agreement shall be in violation of any applicable law, or unenforceable for any reason, the invalidity or unenforceability of such provision shall not invalidate or render unenforceable any other provision hereof. Descriptive headings included 9 herein are included for convenience only, and shall not control or affect the meaning or construction of provisions of the Agreement. Each Exhibit or Addendum referred to in this Agreement, and attached hereto, is incorporated herein as if set out fully in the body of this Agreement. The parties acknowledge that each party and its counsel have participated in the negotiation and preparation of this Agreement. This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing the Agreement to be drafted. (c) Time for Performance: Time is of the essence with respect to every provision of this Agreement. If the date of Closing, the last day under any notice, or the last day to perform any obligation hereunder falls on a Saturday, Sunday or legal holiday, or any day on which the Banks are not open for business, in such event the time for performance shall be extended to the next business day that does not fall on one of the aforementioned days. (d) Modification or Waiver: No modification, waiver or amendment of any provision of this Agreement shall be implied from any course of conduct or shall not be effective unless set forth in a written agreement executed by the party against whom such modification, waiver or amendment is sought to be enforced. (e) Binding Effect: This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and assigns. (f) Survival: All of the representations, warranties and indemnifications provided in this Agreement shall survive Closing. However, with specific reference to environmental representations and warranties, said representations and warranties shall expire upon the one year anniversary of Closing. (g) Further Assurances: The parties agree to sign, execute and deliver, or cause to be signed, executed and delivered, and or make, or cause to be done and made, upon the written request of the other party, any and all agreements, instruments, papers, deeds, acts or things, supplemental, confirming or otherwise, as may be reasonably required to effect the purpose and intent of the Agreement. (h) Memorandum of Agreement: Each party agrees that this 10 Agreement shall not be recorded in the public records. However, upon the request of a party, each party shall execute a Memorandum of the Agreement in recordable form which Memorandum may be recorded in the public records by either party. (i) Purchaser may at its option assign its rights and obligations under this Agreement prior to Closing to any entity in which Purchaser owns a controlling interest or is under the common control with or is controlled by Purchaser. Prior to Closing, Purchaser may assign its rights and obligations under this Agreement to any third party wi th the prior approval of Seller, which Seller will not unreasonably withhold. Provided that the Property is subject to the post-Closing obligations set forth herein, Purchaser may at its option sell and convey the Property subsequent to Closing without restriction, provided ei ther (a) the Purchaser demonstrates to the reasonable satisfaction of the Seller that the proposed purchaser has financial and developmental ability equal to or greater than that of the Purchaser or (b) the Purchaser owns an interest, regardless of the nature, amount or extent of such interest, in the proposed purchaser. In the event that the Purchaser elects to sell and convey the Property pursuant to subpart (a) hereof and provides the Seller with such evidence of the financial and developmental ability of the proposed purchaser as set forth herein, the Seller shall approve such proposed purchaser by wri tten and recordable instrument wi thin 30 days following the receipt of such evidence or shall within such time frame provide the Purchaser in writing with its reasons for failure so to approve and any and all evidence that it has to support such failure to approve. In the event that the Purchaser elects to sell and convey the Property pursuant to subpart (b) hereof, it shall evidence its ownership of an interest in the proposed purchaser by affidavit in recordable form attesting to such ownership, which affidavit shall be deemed conclusive evidence of its compliance with the terms of this paragraph. The terms and provisions of subparts (a) and (b) hereof shall only apply in the event of a sale and conveyance of the Property subsequent to Closing but prior to the issuance of a certificate of occupancy on the improvements to be constructed on the Property. Upon the issuance of such certificate, any and all restrictions regarding sale of the Property shall be deemed null and void, and of no further effect. Regardless of any provision hereof to the contrary, the terms and provisions of this paragraph shall be deemed automatically subordinated to the interest of any bona fide lender for value which may be granted an interest in the Property as collateral for a loan. 11 (j) The following post-Closing obligations or agreements shall survive the Closing: i) The Purchaser intends to develop the Property into up to 182 condominium units and/or retail and commercial rental property. Such development shall be substantially consistent with the market analysis prepared by Delta Associates dated March 24, 2006, as the same may be amended from time to time to accommodate changes that may be necessary or desirable as the Purchaser proceeds wi th development. Purchaser will commence construction on the Property wi thin the twenty-four (24) months following Closing. ii) The City of Augusta shall provide utilities to the Property of a kind and character generally provided by municipalities for similar developments. The City shall provide street improvements to and at the ProPerty similar to those by it at Tenth, Ninth and Seventh Streets adjacent to the Riverwalk Park. The provision of such utili ties and improvements by the Ci ty are a material inducement to the Purchaser for its entering into this Agreement, and in the event the City fails to do so, the Purchaser may treat such failure as a breach of this Agreement. The failure of the City to provide such utilities and improvements in a timely fashion resulting in a delay of the planned development by the Purchaser shall, among other remedies available to the Purchaser, be deemed an automatic extension of the time periods set forth in the construction schedule as outlined on Exhibit UB" attached hereto and the resulting ability of the Seller to notify the City of its purchase rights as described in subparagraph (iv) hereof. iii) The City shall provide for water and sewer tap fees for each condominium unit or other facility to be cons tructed by the Purchaser at its usual and customary fee of $250/uni t or $45,500 in the aggregate. The City shall provide two compound meters wi th bypass for a fee of $4,528.00. The provision of such taps are a material inducement to the Purchaser for its entering into this Agreement. 12 iv) The City shall have the right for thirty days following the receipt of written notice from the Seller to purchase the Property from the Purchaser if the Seller deems in its reasonable discretion that the Purchaser has not diligently pursued its construction schedule as outlined on Exhibit "B" attached hereto, subject to any extensions as set forth in subpart (ii) hereof. Such right to purchase shall expire if it is not exercised by the City by the end of such thirty day period. If the City exercises such right, the purchase price to be paid to the Purchaser shall be the sum of $1,702,000, provided, however, if the City has breached any of its obligations, then the purchase price shall be increased by such expenses tha t the Purchaser has incurred in reliance upon the inducements offered by the City, which the City failed to provide through no fault of the Purchaser. v) Purchaser shall use its best efforts to preserve the Depot, loca ted upon the Property. The parties acknowledge that the Purchaser must have proper and adequate access to the balance of the Property for purposes of development, and that the need for such may necessitate the demolition or the relocation of some parts of the Depot improvements. vi) Purchaser shall cause an advisory committee to be formed for giving it advice as to the design and the construction of the development upon the Property by the Purchaser. The composition of such advisory committee shall be in the discretion of the Purchaser. However, it shall have among its members Dr. James Carter of the Seller and Mr. Erick Montgomery of Historic Augusta, Inc., and shall also include a representative of the City and of Augusta Tomorrow to be selected by the Purchaser. In the event that such members are unwilling to serve or unable to continue such service, the Purchaser may appoint substitute members with the consent of the Seller, not to be unreasonably withheld. 13 vi) The above post-closing obligations have been agreed to between the Ci ty and the Seller for the benefi t of the Property and/or the Purchaser. To the extent allowed by law or otherwise, the City and the Seller, as the case may be, agree that the benefits to be deri ved from such obligations will be assigned to the Purchaser by ei ther or both of them as the case may be, and that the Purchaser may enforce the performance thereof against them or either of them as assignee of and/or as a third-party beneficiary of such agreements. vii) Regardless of any provision of this Agreement to the contrary, the terms and provisions of the POst- closing obligations of the Purchaser set forth in this Paragraph 16(j) shall be deemed automatically subordinated to the interest of any bona fide lender for value which may be granted an interest in the Property as collateral for a loan. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Sale and affixed their seals hereto on the day and year first above written. PURCHASER: The Fox.:if-d By: ~a Harry E. As its Presi ent DATE OF EXECUTION: /t!Jj;~/~~ Company, Inc. E 0. Jr. 14 SELLER: DOWNTOWN DEVELOPMENT AUTHORITY OF AUGUSTA BY:- ~~~ AS ITS: c.. AA BY: AS ITS: DATE OF EXECUTION: :~d'~~~~ 2cc~ AS ;?Jill . BY: 0u1t&/ ~ AS ITS: -. 61,2- CeJ~6D2tPJ - h5 J-v DATE OF EXECUTION: 16 /-z.-r/o f:, ~ lo \'\<5[aG 15 EXHIBIT UA" All that tract or parcel of land, situate, lying and being in the State of Georgia, County of Richmond and City of Augusta, containing 6.30 acres, and being more particularly shown on a certain plat thereof prepared for Watermark Condominiums by Crans ton, Robertson & Whi tehurs t , P. C . da ted Augus t 9 , 2006 , incorporated herein by reference for a more particular description. 16