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Agenda 01-24-08 J f any pen;on decides to appeal any decision made by the Board with respect to any matter considered at this meeting, he or she will need a record of the proceedings, and that, for such purpose, he or she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Special Meeting of the eRA Board Thursday, January 24, 2008 City Commission Chambers 4:00 P.M. I. Call to Order - Chairman Jerry Taylor II. Pledge to the Flag and Invocation III. Roll Call IV. Approval of Two Separate Purchase and Sale Agreements and Memorandum of Understanding Relative to Ocean Breeze V. Adjournment ~~~'tY~T2~IC RA iI East Side-West Side-Seaside Renaissance I f any person decides to appeal any decision made by the Board with respect to any matter considered at this meeting, he or she will need a record of the proceedings, and that, for such purpose, he or she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Special Meeting of the eRA Board Thursday, January 24, 2008 City Commission Chambers 4:00 P.M. I. Call to Order - Chairman Jerry Taylor II. Pledge to the Flag and Invocation III. Roll Call IV. Approval of Two Separate Purchase and Sale Agreements and Memorandum of Understanding Relative to Ocean Breeze V. Adjournment SCANNED City Clerk's Office ~~Y~T2~ C [V~ , East Side-West S",de-Seas",de Rena",ssance CRA SPECIAL BOARD MEETING OF: January24,2008 I Consent Agenda I X I Old Business I I New Business Public Hearing Other SUBJECT: Approval of Two Separate Purchase and Sales Agreements and Memorandum of Understanding Relative to Ocean Breeze SUMMARY: At the October 9, 2007 Board Meeting, American Realty was selected to be the developer of the Ocean Breeze Project in the Heart of Boynton District. For the past several months, CRA staff and legal have worked to craft purchase agreements for this project. Some of the challenges have been that the land is not contiguous. The properties are physically across the street from one another. In addition, one side ofthe street is a "for rental" product and the other side is a "for sale" product, requiring different financing mechanisms and deadlines. These finalized agreements represent the CRA and American Realty's partnership in applying for the Community Workforce Housing Initiative Program (CWHIP) deadline of January 29, 2008. Securing this funding will advance and expedite future development of the project. The Memorandum of Understanding identifies and outlines the terms of the relationship and agreements between the CRA and American Realty. FISCAL IMPACT: nla RECOMMENDATIONS: 1. Staff recommends the approval of the Apartment Purchase Agreement and the corresponding Resolution 2. Staff recommends the approval of the Townhouse Purchase Agreement and corresponding Resolution 3. Staff recommends the approval of the Memorandum of Understanding c1~(~ Lisa Bright Executive Director T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2007 - 2008 Board Meetings\0801 24 SPECIAL MEETING OB\Ocean Breeze Cover Sheet.doc PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is entered into as of the ~ day of _ 2008, between the Boynton Beach Community Redevelopment Agency, a public agency created pursuant to Chapter 163, Part Ill, of the Florida Statutes (the "Seller") and Oceanbreeze, LLC, a Florida limited liability company (the "Purchaser"). WIT N E SSE T H: In consideration of the mutual covenants set forth herein and the earnest money deposit herein called for, the parties hereto mutually agree as follows: Section 1. Sale and Purchase, Seller hereby agrees to sell, convey, and assign to Purchaser and Purchaser hereby agrees to purchase and accept from Seller, for the Purchase Price (hereinafter defined) and on and subject to the terms and conditions herein set forth, the following: a. A portion of land containing a approximately of 4.39 acres of land situated in Boynton Beach, Florida, described in Exhibit "A" and depicted on Exhibit A-I attached hereto ("Land"); and all right, title, and interest appurtenant or related to the Land, including, but not limited to, all rights to underlying roads adjacent thereto, access easements and rights-of-way relating thereto or benefiting the Land, impact fees, utility mains, service laterals, hydrants and valves servicing or available to service the Land, now or in the future on or appurtenant thereto; b. to the extent they are assignable, are owned and/or held by Seller, are in Seller's possession or control, and relate to the design, construction, ownership, development, maintenance or operation of the Land, any and all: (i) contracts or agreements, such as maintenance, service, or utility contracts; (ii) licenses, permits, approvals, or similar documents; (iii) all rights of Seller thereunder are hereinafter collectively called the "Intangible Personal Property." The Land is herein collectively called the "Property." All of the Property shall be conveyed, assigned and transferred to Purchaser at Closing (hereinafter defmed) free and clear of all liens, claims, and encumbrances except for taxes for the year of closing and easements and restrictions of record, provide such easements and restrictions do not adversely affect Purchaser's ability to develop and construct a multi-family affordable housing project, a clubhouse and attendant facilities (the "Project"). Said attendant facilities shall be more particularly set forth and developed in accordance with the requirements of the Federal Low Income Housing Tax Credits (LIHTC) program, and/or the Florida Housing Finance Corporation. Section 2, Purchase Price. The price ("Purchase Price") for which Seller agrees to sell and convey the Property to Purchaser, and which the Purchaser agrees to pay to Seller is TWO MILLION FIVE HUNDRED TWENTY THOUSAND AND NO/IOO Dollars ($2,520,000.00), The failure to tender the deposit by the referenced date shall constitute a default under the terms of this Agreement. a. Within ten days of final rankings of the 2008 Cycle Universal Applications by the Florida Housing Finance Corporation, or October 31, 2008 whichever occurs first, Purchaser shall pay to Seller a deposit in the amount of TWO HUNDRED TEN THOUSAND AND NOll 00 Dollars ($210,000.00). C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK6l \Apts _ Contract_FinaI.doc 1 b. u.s. Cash, locally drawn cashier's check or wire transfer on the date of Closing and delivery of Deed (or such greater or lesser amounts as may be necessary to complete payment of the Purchase Price after all credits, adjustments and pro-rations required herein). c. The Deposit shall be held by Seller's attorney, Goren, Cherof, Doody and Ezrol, P.A. ("Escrow Agent"), in Escrow Agent's trust account with a local bank. The Deposit shall, if this transaction closes, become a credit in favor of Purchaser toward payment of the Purchase Price at closing. If this transaction shall fail to close, the disposition of the Deposit shall be as hereinafter provided. d. All funds payable hereunder shall be tendered in lawful money of the United States of America. The Deposit and sum payable on the date of closing shall be paid by either wire transfer of immediately available U.S. federal funds or by cashier's check drawn upon a bank located in Palm Beach County, Florida. Section 3, Escrow Aeent. Escrow Agent has agreed to act as escrow agent for the convenience of the parties without fee or compensation for its services. Escrow Agent shall hold the Deposit, and, if applicable, invest same as provided for, and any other documents required herein, and to deliver same to the parties herein in accordance with the provisions of this Agreement. Escrow Agent, as escrow agent, is acting in the capacity of a depository only, and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall be caused by the gross negligence or willful misconduct of Escrow Agent. Escrow Agent may rely upon the written notices, communications, orders or instructions given by Seller or Purchaser or believed by it to be genuine. Seller and Purchaser will indemnify and hold Escrow Agent harmless against any matters directly or indirectly related to the Deposit and any other funds held by Escrow Agent under this Agreement, including, without limitation, attorneys' fees. In the event of any disagreement among any of the parties to this Agreement resulting in adverse claims and demands being made in connection with the Property, Escrow Agent shall be entitled to refuse to comply with any such claims or demands as long as such disagreement may continue, and in so refusing, shall make no delivery or other disposition of the Deposit then held by it under this Agreement, and in doing so, Escrow Agent shall not become liable in any way for such refusal, and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of adverse claimants shall have been finally settled by binding arbitration or fmally adjudicated in a court assuming and having jurisdiction of the Property, or (b) all differences shall have been adjusted by agreement and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Further, Escrow Agent shall have the right at any time after a dispute between Seller and Purchaser has arisen, to pay the Deposit held by it into any court of competent jurisdiction for payment to the appropriate party, whereupon Escrow Agent's obligations hereunder shall terminate. Seller and Purchaser agree that the status of Seller's counsel as Escrow Agent under this Agreement does not disqualify such law firm from representing Seller in this transaction and in any disputes that may arise between Seller and Purchaser concerning this transaction, including any dispute or controversy with respect to the Deposit. C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK6l \Apts_ Contract_Final.doc 2 Section 4. Inspection Period. a. Purchaser shall have until seventy five (75) calendar days from the Effective Date of this Agreement (the "Inspection Review Period") from the Effective Date of this Agreement (the "Inspection Period") within which to conduct a general investigation of the Property (the "Property Inspection") and determine the feasibility of the Project. If Purchaser is not satisfied with the results of the Property Inspection and determines that it does not wish to purchase the Property, Purchaser may elect to cancel and terminate this Agreement by delivering notice to Seller within the Inspection Period, whereupon Escrow Agent shall return to Purchaser all deposits paid hereunder and this Agreement shall be terminated and the parties shall be relieved of any further obligations hereunder. b. Purchaser, during the Inspection Period, may enter upon the Property to perform such reasonable acts as are necessary in order to conduct the Property Inspection. During the Inspection Period, Seller will make available for inspection by Purchaser all of Seller's documents regarding the Property and the Intangible Personal Property, including, but not limited to, surveys, appraisals, environmental reports, soil reports, service contracts, leases and title reports in Seller's possession or control which such documents Seller shall deliver to Purchaser within ten (10) days of the Effective Date of this Agreement. Purchaser may make copies of the foregoing documents provided that Purchaser shall not disclose the contents of them to anyone other than Purchaser's advisors and consultants, and provided further that all such copies shall be returned to Seller if this Agreement is terminated. Purchaser may continue to enter upon the Property after the expiration of the Inspection Period provided this Agreement remains in full force and effect. Purchaser, its agents, representatives or contractors shall enter the Property at their own risk, all such entries and studies shall be at Purchaser's cost, and Seller shall have no liability for any injuries or cost sustained by Purchaser, its agents, employees, officers, representatives or contractors, unless caused by Seller's negligence or willful misconduct. Purchaser agrees the Property shall not be unnecessarily disturbed during the Property Inspection and prior to closing and agrees to promptly repair or restore any damage to the Property caused by such entry or entries onto the Property. Purchaser shall indemnify and hold harmless Seller (and its legal representatives, successors and assigns) from and against any and all claims, liens, demands, personal injury, property damage, or liability of any nature whatsoever arising from or incident to Purchaser's (or its agents, representatives' or contractors') entry or entries onto the Property or activities upon the Property, unless caused by Seller's negligence or willful misconduct. This indemnification shall include payment of court costs and attorneys' fees including those incurred in appellate proceedings. c. Purchaser's indemnification obligations contained above shall survlVe any assignment, cancellation and termination of this Agreement. d. If this Agreement is terminated, Purchaser, at no cost to Seller, and upon Seller's written request, shall furnish Seller with copies of all tests and studies prepared by third party contractors, consultants and vendors engaged by Purchaser relating to the Property Inspection that are in Purchaser's possession, and, if not in Purchaser's possession, then within five (5) business days after Purchaser's receipt of same. e. REAL PROPERTY SOLD AS IS, WHERE IS RELEASE: Seller makes and shall make no warranty regarding the title to the Property except as to any warranties which will be contained in the instruments to be delivered by Seller at Closing in accordance with this Agreement, and Seller makes and shall make no representation or warranty either expressed or implied (except as specifically set forth in the Agreement) regarding condition, operability, safety, fitness for intended purpose, use, governmental requirements, development potential, utility availability, legal access, economic feasibility or any other matters whatsoever with respect C:\Documents and Sertings\buckleya\Local Sertings\Temporary Internet Files\OLK61\Apts_Contract_Final.doc 3 to the Property. The Purchaser specifically acknowledges and agrees that Seller shall sell and Purchaser shall purchase the Property on an "AS IS WHERE IS AND WITH ALL FAULTS" basis and that, except for the Seller's representations and warranties specifically set forth in this Agreement, Purchaser is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, its agents, officers, or employees, as to any matters concerning the Property including, without limitation, any matters relating to (1) the quality, nature, adequacy, or physical condition of the Property, (2) the quality, nature, adequacy, or physical condition of soils, fill, geology, or any groundwater, (3) the existence, quality, nature, adequacy or physical condition of utilities serving the Property, (4) the development potential, income potential, expenses of the Property, (5) the Property's value, use habitability, or merchantability, (6) the fitness, suitability, or adequacy of the Property for any particular use or purpose, (7) the zoning or other legal status of the Property, (8) the compliance of the Property or its operation with any applicable codes, laws, rules, regulations, statutes, ordinances, covenants, judgments, orders, directives, decisions, guidelines, conditions, or restrictions of any governmental or quasi- governmental entity or any other person or entity, including , without limitation, environmental person or entity, including without limitation, environmental laws, (9) the presence of Hazardous Materials (as defined herein) or any other hazardous or toxic matter on, under, or about the Property or adjoining or neighborhood property, (10) the freedom of the Property from the latent or apparent vices or defects, (11) peaceable possession of the Property, (12) environmental matters of any kind or nature whatsoever relating to the Property, (13) any development order or agreement, or (14) any other matter or matters of any nature or kind whatsoever relating to the Property. As used herein, the term "Hazardous Materials" means (i) those substance included within the defmitions of "hazardous substances", "hazardous materials", "toxic substances" or "solid waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 V.S.C. S960 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. S6901 et seq., the Hazardous Materials Transportation Act, 49 V.S.C. Sl801 et seq., or the Clean Water Act, 33 V.S.C. S1321 et seq., as amended, and in the regulations promulgated pursuant thereto; (ii) those substances listed in the Vnited States Department of Transportation Table (49 CFR S 172.1 01) or by the Environmental Protection Agency as "hazardous substances", "hazardous materials", "toxic substances" or "solid waste", (iii) such other substances, materials and wastes which are regulated, or classified as hazardous or toxic, under applicable local, state or federal laws, ordinances or regulations; and any material, waste or substance which is petroleum, asbestos, polychlorinated biphenyls, flammable explosives or radioactive materials Section 5. Contin2encies. Purchaser's and Seller's obligations under this Agreement are contingent on the following occurring: a. Purchaser's ability to obtain a tax credit allocation from the Florida Housing Finance Corporation no later than October 31, 2008; and/or b. Purchaser obtaining construction fmancing for the construction of the Project. Purchaser shall file all necessary applications for such tax credit allocation with the Florida Housing Finance Corporation on or before the anticipated cycle closing date of March 26, 2008. In the event Purchaser is unable to obtain the tax credit allocation from The Florida Housing Finance Corporation, Purchaser shall give Seller written notice within five (5) days of such determination, in which event the Escrow Agent shall return the Deposit to Purchaser and the parties shall be released and discharged of and from all obligations hereunder. C:\Doeuments and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61\Apts_Contract_Final.doc 4 Section 6. Permits. Approvals and Zoning: Conting:encv. Upon the execution hereof, Purchaser, at the Purchaser's expense and option, shall engage the appropriate professionals, in order to prepare all of the plans, specifications and documents necessary for the Purchaser to obtain preliminary site plan approval from Boynton Beach, Florida, and all other appropriate regulatory agencies for the preliminary site plan approval for the Project and Purchaser's obligation to acquire the Property is contingent upon obtaining such approvals. Purchaser shall apply and diligently and in good faith pursue the approvals for the Project from all appropriate governmental and quasi-governmental agencies. The Purchaser shall be responsible for paying for all professional fees, and governmental approval fees and applications associated with the approvals which Purchaser has incurred. Purchaser agrees that Purchaser will not submit any final executed documents that would bind either the Property or the Seller to Purchaser's site plan without the express written consent of Seller, which will not be unreasonably withheld. Seller and Purchaser hereby agree to fully cooperate with each other in connection with obtaining the preliminary site plan approval for the Property. In the event Purchaser is unable to obtain the preliminary site plan approval of the Property on or before the anticipated cycle closing date of 1 March 2008, Purchaser may extend, with Seller's written approval, the time to obtain the re-zoning or Purchaser may terminate this Agreement and receive the return of Purchaser's Deposits hereunder. All remaining permits and approvals shall be obtained within 12 months of the execution date of this agreement. Section 7. Closinl!. a. The closing ("Closing") of the sale of the Property by Seller to Purchaser shall occur at a time and place designated by Purchaser on or before December 31, 2008 (the "Closing Date"), unless an earlier date is agreed to between Seller and Purchaser. The Purchaser may elect to extend the Closing date 30 days with the written approval of the Seller and the payment of $50,000 (the "Extension Payment); Purchaser may elect this option up to three consecutive instances for a total extension of 90 days. The Extension Payment shall be non-refundable but applied to the purchase price. b. At the Closing, the following shall occur: (i) Purchaser, at its sole cost and expense, shall deliver or cause to be delivered at Closing the following: 1. The balance of the Purchase Price as set forth in Section 2 hereof, subject to prorations, adjustments and credits as described in this Agreement; and 2. Execute and deliver or obtain for delivery any instruments reasonably necessary to close this transaction, including, by way of example but not limitation, [corporate] [limited partnership certificates] and resolutions, closing statements, corporate resolutions or affidavits and delivery of instruments reasonably required by the title agent. (ii) Seller, at its sole cost and expense, shall deliver or cause to be delivered to Purchaser the following: 1. General Warranty Deed fully executed and acknowledged by Seller, conveying, to Purchaser the Property, subject only to (a) real estate taxes for the year of closing, which are not yet due and payable, and subsequent years; (b) zoning and use restrictions in effect or which may hereafter come into existence due to governmental action; and (c) easements and restrictions of record which have been approved by Purchaser; C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK6l \Apts _ Contract_Final.doe 5 2. Assignment of all sewer and water taps, impact fee credits, licenses, permits, plans and approvals, if any; 3. Affidavit attesting to the absence, of any financing statements, claims of lien or potential lienors known to Seller and further attesting that there have been no improvements or repairs to the Property which remain unpaid for ninety (90) days immediately preceding the date of Closing; 4. A certificate meeting the requirements of Section 1445 of the Internal Revenue Code executed and sworn to by Seller; 5. Evidence reasonably satisfactory to Purchaser and the title agent that the person or persons executing the closing documents on behalf of Seller have full right, power and authority to do so; 6. Execute and deliver or obtain for delivery any other instruments reasonably necessary to close this transaction, including, by way of example but not limitation, closing statements, releases, affidavits and delivery of instruments reasonably required by the title agent; 7. Deliver all Intangible Personal Property, if any, m Seller's posseSSIOn. c. The following items shall be prorated or adjusted at the closing: (i) Real estate taxes and assessments, shall be prorated as of the Closing Date. Real estate taxes and assessments shall be prorated based on actual taxes and assessments for the year of Closing, or, if same are not available, on taxes and assessments for the preceding year, subject to reproration between the parties upon receipt of fmal tax bill for the year of the closing. d. Upon completion of the Closing, (i) Seller shall deliver to Purchaser possession of the Property; and (ii) Escrow Agent shall promptly record the deed of conveyance, the mortgage and any other applicable closing documents upon confirmation of clearance of all funds. e. Purchaser, at closing, shall pay the recording fee for the deed and documentary stamp tax on the deed of conveyance f. Seller, at closing shall pay the premium for the Owner's Title Insurance Policy based on the minimum promulgated rate. g. Certified, confirmed and ratified special assessment liens as of the date hereof shall be paid by Seller and pending liens as of the date hereof shall be assumed by Purchaser. Section 8. Evidence of Title and Title Insurance. a. On or before ninety (90) days after the Effective Date, Purchaser, or its counsel, shall obtain, at Seller's expense not to exceed the minimum promulgated rate set forth by the Insurance Commissioner of the State of Florida a title insurance commitment for an ALTA Form B marketability policy issued by Commonwealth Land Title Insurance Company (the "Title Company") in the full amount of the Purchase Price (the "Commitment"), together with legible copies of any encumbrances listed thereon. Purchaser will provide seller either with a credit in the amount of the title agent's earned title premium at closing or will cause the title agent to remit C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK6l \Apts _ Contract_Final.doc 6 such amount directly to the Seller at closing. The Commitment shall have an effective date that is after the Effective Date of the Agreement and that is within 10 days of the date of its issuance. At the Closing, Title Company shall deliver an endorsement to, or "mark-up" of, the Commitment deleting all Schedule B-1 requirements, all standard exceptions except taxes for the current year not then due and payable, and the "gap" exceptions. b. If the Commitment contains any exceptions which render title unmarketable or adversely affect the value of the Property or Purchaser's intended use of the Property as set forth in Purchaser's proposal to the Seller's Request for Proposal issued on August 1, 2007 shown as Exhibit "B". Purchaser shall deliver written notice to Seller specifying the additional exceptions that render title unmarketable or objectionable to Purchaser. Such notice shall be given not later than fifteen (15) days after receipt of the Commitment by Purchaser. Upon receipt of the notice, Seller shall have thirty (30) days in which to remove the additional exceptions with reasonable effort and reasonable expenditures. c. Seller may, but is not obligated, to cure any objections. If Seller fails to remove any such objections within thirty (30) days after notice to Seller, Purchaser may elect by giving written notice to Seller, which notice must be received by Seller before the date that is five (5) business days after the end of such thirty (30) day period, either to (i) reject title as it then exists and terminate this Agreement and thereupon be entitled to a return of the Deposit, or (ii) waive such objections and proceed with the Closing and accept the Property subject to such exceptions without reduction of the Purchase Price. Upon return of the Deposit to Purchaser pursuant to subparagraph (i) above, this Agreement shall cease and terminate and the parties shall have no further rights, duties, or obligations under this Agreement, except for those rights, duties and obligations that specifically survive termination of this Agreement. If Purchaser fails to send any notice by the required date, Purchaser shall be deemed to have waived the objections to such exceptions and shall proceed to the Closing as provided by this Agreement. d. If any subsequent endorsement to the Commitment reveals any additional exceptions not permitted by this Agreement, Seller shall have fifteen (15) days in which to remove such additional exceptions, subject to the limitations set forth above. If Seller is unable to remove such additional exceptions, Purchaser shall have the same rights and remedies as provided above, except that the Closing shall not be extended more than thirty (30) days to permit Seller to cure any such additional exceptions. e. Seller and Purchaser each agree to provide reasonable affidavits and documentation to enable the Title Company to delete all Schedule B-1 requirements, the "gap" exception, and the construction lien and parties in possession exceptions from the Commitment at Closing. Seller and Purchaser each shall be responsible for satisfying those Schedule B-1 requirements applicable to each of them. Section 9. Survey. Purchaser may obtain, at Purchaser's expense, a survey of the Property. If the survey shows any encroachment on the Property, the same shall be treated as a title defect and the notice and cure provisions hereof shall control. The legal descriptions prepared by the surveyor shall be utilized as the legal descriptions for the Warranty Deed given by Seller to Purchaser. Section 10. Representations of Purchaser and Seller. Seller and Purchaser respectively hereby make the following representations. Such representations shall also be deemed made as of the Closing Date and the remedies for breach thereof shall survive Closing: C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61 \Apts_ Contract_Final.doc 7 a. Purchaser'Representations. To induce Seller to enter into this Agreement and to sell the Property, Purchaser represents and warrants to Seller: (i) Except for this Agreement, Purchaser has entered into no other purchase or commission agreement with respect to the Property. (ii) Purchaser shall pay prior to Closing or arrange for payment after Closing of all claims, liabilities or expenses associated with its inspection, permitting and development of the Property, except as otherwise provided herein. (iii) Purchaser has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition or suffered the filing of an involuntary petition by Purchaser's creditors, (c) suffered the appointment of a receiver to take all, or substantially all, of Purchaser's assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser's assets, or ( e) admitted in writing its inability to pay its debts as they fall due, and no such action is threatened or contemplated. If any of such actions have been taken or brought against Purchaser, then prior to the date hereof the same have been fully disclosed and Purchaser discharged therefrom so that there are no prohibitions or conditions upon Purchaser's acquisition of the Property. (iv) Neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated by this Agreement will result (either immediately or after the passage of time and/or the giving of notice) in breach or default by Purchaser under any agreement or understanding to which Purchaser is a party or by which Purchaser may be bound or which would have an effect upon Purchaser's ability to fully perform its obligations under this Agreement. (v) That Purchaser has the right, power and authority to execute, deliver and perform this Agreement without obtaining any consents or approvals from or the taking of any action with respect to, any third parties. This Agreement, when executed and delivered by Purchaser and Seller, will constitute the valid and binding Agreement of Purchaser. (vi) The execution and delivery of this Agreement and the performance by Purchaser of the obligations hereunder have been duly authorized by the Purchaser as may be required, and no further action or approval is required in order to constitute this agreement as a binding obligation of the Purchaser. (vii) The execution and delivery of the Agreement and the consummation of the transaction contemplated hereunder on the part of the Purchaser do not and will not violate the organizational documents of Purchaser or any shareholders agreement of the Purchaser, do not and will not conflict with or result in the breach of any condition or provision, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the terms of any contract, mortgage, lien, lease, agreement, indenture, instrument or judgment to which the Purchaser is a party. (viii) All of the representations, warranties and covenants of Purchaser contained in this agreement or in any other document delivered to Seller in connection with the transaction contemplated herein, shall be true and correct in all material respects and not in the default at the time of closing, just as though they were made at such time. (ix) Purchaser shall indemnify, hold harmless and defend Seller and its agents against all claims, demands, losses, liabilities, costs and expenses, including attorney's C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Apts _ Contract_Final. doc 8 fees, imposed upon or accruing against Seller as a result of the representations contained in this paragraph. b. Seller's Representations. To induce Purchaser to enter into this Agreement and to purchase the Property, Seller represents and warrants to Purchaser that: (i) That Seller owns the entire fee simple title to the Property, legal and equitable, subject only to the Permitted Exceptions (which are title exceptions disclosed by the Title Commitment or survey and which do not adversely affect Purchaser's ability to construct the Project in the Purchaser's reasonable discretion); (ii) That Seller has no knowledge regarding, and has received no written notice of, violations of any law, ordinance, order or regulation affecting the Property issued by any governmental or quasi-governmental authority having jurisdiction over the Property that has not been corrected; and that before the Closing, Seller shall promptly disclose to Purchaser any knowledge regarding, and furnish to Purchaser copies of any and all written notices of, violations that Seller receives between the Effective Date and the Closing Date from any governmental or quasi-governmental authorities having jurisdiction over the Property; (iii) That there are no (i) existing or pending improvement liens affecting the Property; (ii) existing, pending, or threatened lawsuits or appeals of prior lawsuits affecting the Property or Seller; (iii) existing, pending, or threatened condemnation proceedings affecting the Property; (iv) except as disclosed to Purchaser by Seller, any existing, pending, or threatened zoning, building, or other moratoria, down zoning petitions, proceedings, restrictive allocations, or similar matters that could affect Purchaser's use of the Property, the value of the Property or the issuance of building permits or certificates of occupancy with respect to the Property; (v) existing, pending, or threatened water or sewer hookup, water extraction, electrical or other utility moratoria; or (vi) pending real estate tax appeals or protests with respect to the Property before any applicable governmental authority; (iv) That the Property is not to Seller's knowledge subject to any declaration of protective covenants, use restrictions or any homeowners' associations by Seller, or its successors and assigns; (v) That there are no other purchase and sale agreements, nor options or rights of first refusal in effect as of the Effective Date relating to the Property nor will any such interest be in effect as of the time of Closing; (vi) That there are no judgments, encumbrances or liens against the Property or Seller that will remain unsatisfied at the time of Closing; (vii) Seller has no knowledge of any impact fees currently due and payable which are attributable to the Property. That all impact fees, use fees, and assessments (including those of any homeowners, property owners, or similar associations) related to the Property have been paid or will be paid in full by Seller before Closing, and the benefits of them are assignable to Purchaser without additional cost to Purchaser; (viii) That Seller has not received a written summons, citation, directive, notice, complaint, or letter from the United States Environmental Protection Agency, the State of Florida Department of Environmental Protection, or other federal, state, or local governmental C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK6 I \Apts _ Contract_Final.doc 9 agency or authority specifying any alleged violation of any environmental law, rule, regulation, or order at or on the Property and, to the best of Seller's knowledge, the Property is not currently under investigation for any such violation; (ix) That there are no environmental mitigation areas on the Property and there are no environmental mitigation requirements for the Property; (x) During the term of this Agreement, Seller shall not, without in each instance first obtaining Purchaser's written consent, which may be withheld in Purchaser's reasonable discretion, consent to or permit (i) any modification, termination or alteration to existing easements, dedications, covenants, conditions, restrictions, or rights of way adversely affecting Purchaser's intended use for the Property, (ii) any new easements, covenants, dedications, conditions, restrictions, or rights of way affecting Purchaser's intended use for the Property, (iii) any zoning changes or other changes of governmental approvals; (xi) That Seller is not a "foreign person" within the meaning of the Foreign Investment in Real Property Tax Act (FIRPT A), as amended; (xii) That Seller is solvent, and no receivership, bankruptcy, or reorganization proceedings are pending or, to Seller's knowledge, contemplated against Seller in any court; (xiii) Seller has the right, power, and authority to execute, deliver, and perform this Agreement without obtaining any consents or approvals from, or the taking of any other actions with respect to, any third parties, and this Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding Agreement of Seller; (xiv) That, at all times during the term of this Agreement and as of the Closing, all of Seller's representations, warranties, and covenants in this Agreement shall be true and correct; (xv) That no representation or warranty by Seller contained in this Agreement and no statement delivered or information supplied to Purchaser pursuant to this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements or information contained in them or in this Agreement not misleading; and No inquiry, examination, or analysis made by Purchaser (or the results of same) shall reduce, limit or otherwise affect the representations and warranties made by Seller in this Agreement. Section 11. Remedies. In the event of a breach by Purchaser of its obligations under this Agreement, Seller may terminate this Agreement by written notice to Purchaser specifying the breach, and Purchaser shall have five (5) business days opportunity to cure the same (provided that no such cure period shall apply for a breach of the obligation to close by the Closing Date. Purchaser shall fail to close for reasons not caused by Seller, the Deposit made by Purchaser shall be retained by Seller as agreed and liquidated damages for withholding the Property from the market and for expenses incurred and the parties shall thereupon be relieved of any further liability hereunder. In the event Seller shall fail to close for reasons not caused by Purchaser or due to Seller's inability to convey marketable title according to Section 10 hereof, Purchaser shall have the right to demand return of the Deposit paid hereunder, upon which return of Deposit the parties shall have no further liability hereunder, or, in the alternative, Purchaser shall have the right to seek specific performance and/or damages. C:\Documents and Settings\buckleya\Local Settings\Temporary Intemet Files\OLK61 \Apts _ Contract_Final.doct 10 Section 12. Destruction. Dama2e or Takin2 Prior to Closin2. If, prior to Closing, the Property is destroyed, damaged or becomes subject to condemnation or eminent domain proceedings, the Purchaser shall have the option, which must be exercised within ten (10) days after its receipt of written notice from Seller advising of such destruction, damage or taking (which Seller hereby agrees to give), to terminate this Agreement or to proceed with the Closing, without reduction in the Purchase Price. If Purchaser elects to terminate this Agreement, the Deposit shall be returned to Purchaser and neither party shall have any further rights, duties or obligations hereunder, except as otherwise provided herein. If Purchaser elects to proceed with the Closing, Purchaser shall be entitled to the insurance proceeds or condemnation proceeds payable as a result of such damage, destruction or taking up to the amount of the Purchase Price and, to the extent the same may be necessary or appropriate, Seller shall assign to Purchaser, at Closing, Seller's rights to such proceeds up to the amount of the Purchase Price, and Seller will not settle or adjust any insurance claims without Purchaser's prior consent. All insurance proceeds or condemnation proceeds in excess of the Purchase Price shall belong to and be retained by Seller. Section 13. Real Estate Commission. The parties each represent and warrant that there are no real estate agents or brokers or transactional brokers involved in this transaction. Each party agrees to indemnify and hold harmless the other from all claims or demands of any other real estate agent or broker or transactional broker claiming by, through or under said party. This indemnification shall also include payment of court costs and attorneys fees, including those incurred in appellate proceedings. This indemnification shall survive Closing and/or termination of this Agreement~ Section 14. Prohibition A2ainst Recordin2. Neither this Agreement nor any part hereof, shall be recorded among the Public Records of any County in the State of Florida. Section 15. Confidentiality . At all times before the Closing Date of the Property, Purchaser agrees to hold in strict confidence and not to disclose to any other party without the prior written consent of Seller, all information regarding the Property, as expressed in this Agreement, except as may be required by applicable law or as otherwise contemplated in this Agreement, or to Purchaser's legal and financial advisors, lending institutions, and Purchaser's investors. Section 16. Notices. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested; by delivering the same in person to such party; by prepaid telegram or telex; by facsimile copy or by express mail. Notice given in accordance herewith shall be effective upon receipt at the address of the party to be served. For purposes of notice, the addresses of the parties shall be as follows: C:\Documents and Settings\buckIeya\Local Settings\Temporary Internet Files\OLK61 \Apts_ Contract_Final.doc 11 If to Seller, to: Boynton Beach Community Redevelopment Agency 915 S. Federal Highway Boynton Beach, FL 33435 Attn: Lisa A. Bright, Executive Director Telephone: 561-737-3256 Fax: 561-737-32588 If to Purchaser, to: Oceanbreeze, LLC 615 Crescent Executive Court, Suite 120 Lake Mary, Florida 32746 Attn: Todd Borck Telephone: (407) 333-1440 Facsimile: (407) 333-1340 with a copy to: David W. Craft, P.A. 3418 Poinsettia Ave. West Palm Beach, FL 33407-4891 Attn: David W. Craft, Esquire Telephone: (561) 844-3131 Facsimile: (561) 844-6267 with a copy to: Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A. 201 E. Pine, Suite 500 Orlando, Florida 32801 Attn: N. Dwayne Gray, Jr., Esquire Telephone: (407) 425-6559 Facsimile: (407) 422-6583 If to Escrow Agent, to: Goren, Cherof, Doody & Ezrol, P.A. 3099 E. Commercial Blvd., Suite 200 Ft. Lauderdale, FL 33308 Attn: Donald J. Doody, Esquire Telephone: (954) 771-4500 Facsimile: (954) 771-4923 C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK6l \Apts _ Contract_Final.doc 12 Section 17. Assi2ns. This Agreement shall bind and insure to the benefit of Purchaser and Seller and their respective heirs, executors, administrators, personal and legal representatives, successors and assigns. Purchaser may not assign Purchaser's rights under this Agreement without the prior written consent of Seller. Section 18. Entire A2reement. This Agreement and all exhibits, when accepted by Seller, shall constitute the entire agreement between Seller and Purchaser concerning the sale of the Property and supersedes all prior agreements, representations or understandings, whether oral or written, between the parties and no modification hereof or subsequent agreement relative to the subject matter hereof shall be binding on either party unless reduced to writing and signed by the party to be bound. This Agreement, when accepted by Seller, shall be binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns. Section 19. Counterparts. This Agreement may be executed in multiple counterparts, all of which together shall constitute one agreement. A facsimile signature shall be deemed to be an original. Offer and acceptance of this Agreement by facsimile is binding. Section 20. Time of Essence. Time is important to both Seller and Purchaser in the performance of this Agreement, and they have agreed that strict compliance is required as to any date or time period set out or described herein. All references to days herein (unless otherwise specified) shall include Saturdays, Sundays and legal holidays. If the final date of any period which is set out in any section of this Agreement falls upon a Saturday, Sunday or legal holiday under the laws of the United States or the State of Florida, then, in such event, the time of such period shall be extended to the next day which is not a Saturday, Sunday or legal holiday. Section 21. Effective Date. Whenever the term or phrase "effective date" or "date hereof" or other similar phrases describing the date this Agreement becomes binding on Seller and Purchaser are used in this Agreement, such terms or phrases shall mean and refer to the date on which a counterpart or counterparts of this Agreement executed by Seller and Purchaser, together with the Initial Deposit, are deposited with the Escrow Agent. Section 22. Time for Acceptance. Delivery of this document to Purchaser shall not be deemed nor taken to be an offer to sell by Seller. Only when executed by Purchaser or Seller and delivered to the other party hereto shall this Agreement constitute an offer to buy or sell the Property, as the case may be, on the terms herein set forth, acceptable by the party receiving such executed Agreement within seven (7) business days after such receipt, by executing this Agreement and delivering the original hereof to the Escrow Agent and an originally signed copy hereof to the other party hereto. Failure to accept in the manner and within the time specified shall constitute a rejection and termination of such offer. No acceptance shall be valid and binding upon Seller unless in writing and signed by an authorized officer of Seller. C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61 \Apts_ Contract_Final.doe 13 Section 23. Attorney's Fees. In the event either party deems it necessary to cause litigation to enforce, interpret or construe the terms of this Agreement, court costs and attorneys fees, including those incurred in appellate proceedings, shall be awarded to the prevailing party. In the event of enforcement of this Agreement, or any dispute as to interpretation or construction hereof the laws of the State of Florida shall apply, and this Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that this Agreement may have been prepared by counsel for one of the parties, it being recognized that both Seller and Purchaser have contributed substantially and materially to the preparation of this Agreement. In the event of litigation, the parties hereto agree that all suits shall be instituted and maintained in the Circuit Court in and for Palm Beach County, Florida, the jurisdiction of which Court the parties hereby consent to. Purchaser and Seller mutually agree that they waive all rights to a trial by jury in the event of any dispute or court action arising from or related to this Agreement. The parties acknowledge that this waiver is a significant consideration to, and a material inducement for, Purchaser and Seller to enter into this Agreement. Section 24. Severability . If anyone or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision hereof. Section 25. Headine:s. The headings of the sections, paragraphs and subdivisions of this Agreement are for convenience and reference only, and shall not limit or otherwise affect any of the terms hereof. C:\Documents and Settings\buckleya\Loeal Settings\Temporary Internet Files\OLK6l \Apts _ Contract_Final.doc 14 EXECUTED as of the date and year written below. SELLER: Boynton Beach Community Redevelopment Agency, a public agency created pursuant to Chapter 163, Part Ill, of the Florida Statutes By: Title: Dated: ,2008 PURCHASER: OCEANBREEZE, LLC, a Florida limited liability company By: Title: Dated: ,2008 C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61\Apts_Contract_Final.doc 15 ESCROW AGENT We acknowledge receipt of the Initial Deposit in the amount of TWO HUNDRED TEN THOUSAND and No/tOO Dollars ($210,000.00) subject to clearance and agree to be bound by the terms and conditions of this Agreement. GOREN, CHEROF, DOODY, & EZROL P.A. By: Printed Name: Dated: ,2008 C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61 \Apts_ Contract_Final. doc 16 EXHffiIT "A" Le2al Description LOTS 1 THROUGH 12, INCLUSIVE, BLOCK 1, PALM BEACH COUNTRY CLUB ESTATES, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 11, PAGE 43, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, AND THE SOUTH HALF (S.1/2) OF THE EAST HALF (E. 1/2) OF LOT 2, SUBDIVISION OF THE WEST HALF (W.1!2) OF THE SOUTHEAST QUARTER (S.E.1/4) OF SECTION 21, TOWNSHIP 45 SOUTH, RANGE 43 EAST, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 4, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 125 FEET, THEREOF AND LESS THE RIGHT OF WAY FOR SEACREST BOULEVARD AS SHOWN ON ROAD PLAT BOOK 5, PAGE 182, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61 \Apts _ Contract_Final.doc 17 EXECUTED as of the date and year written below. SELLER: Boynton Beach Community Redevelopment Agency, a public agency created pursuant to Chapter 163, Part ill, of the Florida Statutes By: Title: Dated: ,2008 PURCHASER: OCEANBREEZE, LLC, a Florida limited liability company , MI;9- /l1#I'TJ,~r tJt i ' 2008 ~, C:\Documents and Settings\tborck\Local Settings\Temporary Internet Files\OLK8C\Apts_Contract]ina\.doc 15 PURCHASE AND SALE AGREEMENT TIDS PURCHASE AND SALE AGREEMENT (the "Agreement") is entered into as of the _ day of _ 2008, between the Boynton Beach Community Redevelopment Agency, a public agency created pursuant to Chapter 163, Part ill, of the Florida Statutes (the "Seller") and Oceanbreeze, LLC, a Florida limited liability company (the "Purchaser"). WIT N E SSE T H: In consideration of the mutual covenants set forth herein and the earnest money deposit herein called for, the parties hereto mutually agree as follows: Section 1. Sale and Purchase. Seller hereby agrees to sell, convey, and assign to Purchaser and Purchaser hereby agrees to purchase and accept from Seller, for the Purchase Price (hereinafter defined) and on and subject to the terms and conditions herein set forth, the following: a. A portion of land containing a approximately of 4.006 acres of land situated in Boynton Beach, Florida, described in Exhibit "A" and depicted on Exhibit A-I attached hereto ("Land"); and all right, title, and interest appurtenant or related to the Land, including, but not limited to, all rights to underlying roads adjacent thereto, access easements and rights-of-way relating thereto or benefiting the Land, impact fees, utility mains, service laterals, hydrants and valves servicing or available to service the Land, now or in the future on or appurtenant thereto; b. to the extent they are assignable, are owned and/or held by Seller, are in Seller's possession or control, and relate to the design, construction, ownership, development, maintenance or operation of the Land, any and all: (i) contracts or agreements, such as maintenance, service, or utility contracts; (ii) licenses, permits, approvals, or similar documents; (iii) all rights of Seller thereunder are hereinafter collectively called the "Intangible Personal Property. " The Land is herein collectively called the "Property." All of the Property shall be conveyed, assigned and transferred to Purchaser at Closing (hereinafter defined) free and clear of all liens, claims, and encumbrances except for taxes for the year of closing and easements and restrictions of record, provide such easements and restrictions do not adversely affect Purchaser's ability to develop and construct an affordable townhouse project and attendant facilities (the "Project"). Said attendant facilities shall be more particularly set forth and developed in accordance with the requirements of the Florida Housing Finance Corporation. Section 2. Purchase Price. The price ("Purchase Price") for which Seller agrees to sell and convey the Property to Purchaser, and which the Purchaser agrees to pay to Seller is ONE MILLION SIX HUNDRED EIGHTY THOUSAND AND NO/lOO Dollars ($1,680,000.00). a. Within ten days of the receipt of a notice by the Florida Housing Finance Corporation of the award of funding, or October 31, 2008 whichever occurs first, Purchaser shall pay to Seller a deposit in the amount of ONE HUNDRED FORTY THOUSAND AND NOIIOO Dollars ($140,000). The failure to tender the deposit by the referenced date shall constitute a default under the terms of this Agreement C:\Documents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61\Twnhse_ Contract _Final.doc b. U.S. Cash, locally drawn cashier's check or wire transfer on the date of Closing and delivery of Deed (or such greater or lesser amounts as may be necessary to complete payment of the Purchase Price after all credits, adjustments and pro-rations required herein). c. The Deposit shall be held by Seller's attorney, Goren, CherQf, Doody and Ezrol, P.A. ("Escrow Agent"), in Escrow Agent's trust account with a local bank. The Deposit shall, if this transaction closes, become a credit in favor of Purchaser toward payment of the Purchase Price at closing. If this transaction shall fail to close, the disposition of the Deposit shall be as hereinafter provided. d. All funds payable hereunder shall be tendered in lawful money of the United States of America. The Deposit and sum payable on the date of closing shall be paid by either wire transfer of immediately available U.S. federal funds or by cashier's check drawn upon a bank located in Palm Beach County, Florida. Section 3. Escrow A2ent. Escrow Agent has agreed to act as escrow agent for the convenience of the parties without fee or compensation for its services. Escrow Agent shall hold the Deposit, and, if applicable, invest same as provided for, and any other documents required herein, and to deliver same to the parties herein in accordance with the provisions of this Agreement. Escrow Agent, as escrow agent, is acting in the capacity of a depository only, and shall not be liable or responsible to anyone for any damages, losses or expenses unless same shall be caused by the gross negligence or willful misconduct of Escrow Agent. Escrow Agent may rely upon the written notices, communications, orders or instructions given by Seller or Purchaser or believed by it to be genuine. Seller and Purchaser will indemnify and hold Escrow Agent harmless against any matters directly or indirectly related to the Deposit and any other funds held by Escrow Agent under this Agreement, including, without limitation, attorneys' fees. In the event of any disagreement among any of the parties to this Agreement resulting in adverse claims and demands being made in connection with the Property, Escrow Agent shall be entitled to refuse to comply with any such claims or demands as long as such disagreement may continue, and in so refusing, shall make no delivery or other disposition of the Deposit then held by it under this Agreement, and in doing so, Escrow Agent shall not become liable in any way for such refusal, and Escrow Agent shall be entitled to continue to refrain from acting until (a) the rights of adverse claimants shall have been fmally settled by binding arbitration or fmally adjudicated in a court assuming and having jurisdiction of the Property, or (b) all differences shall have been adjusted by agreement and Escrow Agent shall have been notified in writing of such agreement signed by the parties hereto. Further, Escrow Agent shall have the right at any time after a dispute between Seller and Purchaser has arisen, to pay the Deposit held by it into any court of competent jurisdiction for payment to the appropriate party, whereupon Escrow Agent's obligations hereunder shall terminate. Seller and Purchaser agree that the status of Seller's counsel as Escrow Agent under this Agreement does not disqualify such law firm from representing Seller in this transaction and in any disputes that may arise between Seller and Purchaser concerning this transaction, including any dispute or controversy with respect to the Deposit. C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract_Final. doc 2 Section 4. Inspection Period. a. Purchaser shall have until seventy five (75) calendar days from the Effective Date of this Agreement (the "Inspection Review Period") from the Effective Date of this Agreement (the "Inspection Period") within which to conduct a general investigation of the Property (the "Property Inspection") and determine the feasibility of the Project. If Purchaser is not satisfied with the results of the Property Inspection and determines that it does not wish to purchase the Property, Purchaser may elect to cancel and terminate this Agreement by delivering notice to Seller within the Inspection Period, whereupon Escrow Agent shall return to Purchaser all deposits paid hereunder and this Agreement shall be terminated and the parties shall be relieved of any further obligations hereunder. b. Purchaser, during the Inspection Period, may enter upon the Property to perform such reasonable acts as are necessary in order to conduct the Property Inspection. During the Inspection Period, Seller will make available for inspection by Purchaser all of Seller's documents regarding the Property and the Intangible Personal Property, including, but not limited to, surveys, appraisals, environmental reports, soil reports, service contracts, leases and title reports in Seller's possession or control which such documents Seller shall deliver to Purchaser within ten (10) days of the Effective Date of this Agreement. Purchaser may make copies of the foregoing documents provided that Purchaser shall not disclose the contents of them to anyone other than Purchaser's advisors and consultants, and provided further that all such copies shall be returned to Seller if this Agreement is terminated. Purchaser may continue to enter upon the Property after the expiration of the Inspection Period provided this Agreement remains in full force and effect. Purchaser, its agents, representatives or contractors shall enter the Property at their own risk, all such entries and studies shall be at Purchaser's cost, and Seller shall have no liability for any injuries or cost sustained by Purchaser, its agents, employees, officers, representatives or contractors, unless caused by Seller's negligence or willful misconduct. Purchaser agrees the Property shall not be unnecessarily disturbed during the Property Inspection and prior to closing and agrees to promptly repair or restore any damage to the Property caused by such entry or entries onto the Property. Purchaser shall indemnify and hold harmless Seller (and its legal representatives, successors and assigns) from and against any and all claims, liens, demands, personal injury, property damage, or liability of any nature whatsoever arising from or incident to Purchaser's (or its agents, representatives' or contractors') entry or entries onto the Property or activities upon the Property, unless caused by Seller's negligence or willful misconduct. This indemnification shall include payment of court costs and attorneys' fees including those incurred in appellate proceedings. c. Purchaser's indemnification obligations contained above shall survIVe any assignment, cancellation and termination of this Agreement. d. If this Agreement is terminated, Purchaser, at no cost to Seller, and upon Seller's written request, shall furnish Seller with copies of all tests and studies prepared by third party contractors, consultants and vendors engaged by Purchaser relating to the Property Inspection that are in Purchaser's possession, and, if not in Purchaser's possession, then within five (5) business days after Purchaser's receipt of same. e. REAL PROPERTY SOLD AS IS, WHERE IS RELEASE: Seller makes and shall make no warranty regarding the title to the Property except as to any warranties which will be contained in the instruments to be delivered by Seller at Closing in accordance with this Agreement, and Seller makes and shall make no representation or warranty either expressed or implied (except as specifically set forth in the Agreement) regarding condition, operability, safety, fitness for intended purpose, use, governmental requirements, development potential, utility availability, legal access, economic feasibility or any other matters whatsoever with respect C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract_Final.doc 3 to the Property. The Purchaser specifically acknowledges and agrees that Seller shall sell and Purchaser shall purchase the Property on an "AS IS WHERE IS AND WITH ALL FAULTS" basis and that, except for the Seller's representations and warranties specifically set forth in this Agreement, Purchaser is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, its agents, officers, or employees, as to any matters concerning the Property including, without limitation, any matters relating to (1) the quality, nature, adequacy, or physical condition of the Property, (2) the quality, nature, adequacy, or physical condition of soils, fill, geology, or any groundwater, (3) the existence, quality, nature, adequacy or physical condition of utilities serving the Property, (4) the development potential, income potential, expenses of the Property, (5) the Property's value, use habitability, or merchantability, (6) the fitness, suitability, or adequacy of the Property for any particular use or purpose, (7) the zoning or other legal status of the Property, (8) the compliance of the Property or its operation with any applicable codes, laws, rules, regulations, statutes, ordinances, covenants, judgments, orders, directives, decisions, guidelines, conditions, or restrictions of any governmental or quasi- governmental entity or any other person or entity, including , without limitation, environmental person or entity, including without limitation, environmental laws, (9) the presence of Hazardous Materials (as defined herein) or any other hazardous or toxic matter on, under, or about the Property or adjoining or neighborhood property, .00) the freedom of the Property from the latent or apparent vices or defects, (11) peaceable possession of the Property, (12) environmental matters of any kind or nature whatsoever relating to the Property, (13) any development order or agreement, or (14) any other matter or matters of any nature or kind whatsoever relating to the Property . As used herein, the term "Hazardous Materials" means (i) those substance included within the defmitions of "hazardous substances", "hazardous materials", "toxic substances" or "solid waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. S960 et seq., the Resource Conservation and Recovery Act of 1976,42 U.S.C. S6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sl801 et seq., or the Clean Water Act, 33 U.S.C. S1321 et seq., as amended, and in the regulations promulgated pursuant thereto; (ii) those substances listed in the United States Department of Transportation Table (49 CFR Sl72.101) or by the Environmental Protection Agency as "hazardous substances", "hazardous materials", "toxic substances" or "solid waste", (iii) such other substances, materials and wastes which are regulated, or classified as hazardous or toxic, under applicable local, state or federal laws, ordinances or regulations; and any material, waste or substance which is petroleum, asbestos, polychlorinated biphenyls, flammable explosives or radioactive materials. Section 5. Contin2encies. Purchaser's and Seller's obligations under this Agreement are contingent on the following occurring: a. Purchaser's ability to obtain a funding commitment from the Community Workforce Housing Innovation Pilot Program ("CWHIP") or other program or programs which would provide adequate subsidy to develop the proposed project which shall be obtained by December 31,2008; and/or Project. b. Purchaser obtaining construction financing for the construction of the Purchaser shall file all necessary applications for CWHIP and/or other funding sources with the Florida Housing Finance Corporation or other agencies by the required due dates of the respective funding cycles.. In the event Purchaser is unable to obtain the required funding ,Purchaser shall give Seller written notice within five (5) days of such determination, in which event the Escrow Agent shall return the Deposit to Purchaser and the parties shall be released and discharged of and from all obligations hereunder. C:\Documents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61\Twnhse_Contract_Final.doc 4 Section 6. Permits. Approvals and Zoning: Conting:ency. Upon the execution hereof, Purchaser, at the Purchaser's expense and option, shall engage the appropriate professionals, in order to prepare all of the plans, specifications and documents necessary for the Purchaser to obtain preliminary site plan approval from Boynton Beach, Florida, and all other appropriate regulatory agencies for the preliminary site plan approval for the Project and Purchaser's obligation to acquire the Property is contingent upon obtaining such approvals. Purchaser shall apply and diligently and in good faith pursue the approvals for the Project from all appropriate governmental and quasi-governmental agencies. The Purchaser shall be responsible for paying for all professional fees, and governmental approval fees and applications associated with the approvals which Purchaser has incurred. Purchaser agrees that Purchaser will not submit any final executed documents that would bind either the Property or the Seller to Purchaser's site plan without the express written consent of Seller, which will not be unreasonably withheld. Seller and Purchaser hereby agree to fully cooperate with each other in connection with obtaining the preliminary site plan approval for the Property. In the event Purchaser is unable to obtain the preliminary site plan approval of the Property on or before the closing date, Purchaser may extend, with Seller's written approval the time to obtain the re-zoning or Purchaser may terminate this Agreement and receive the return of Purchaser's Deposits hereunder. All remaining permits and approvals shall be obtained within 12 months of the execution date of this agreement. Section 7. Closing:. a. The closing ("Closing") of the sale of the Property by Seller to Purchaser shall occur at a time and place designated by Purchaser on or before December 31,2008 (the "Closing Date"), unless an earlier date is agreed to between Seller and Purchaser. The Purchaser may elect to extend the Closing date 30 days with the written approval of the Seller and the payment of $50,000 (the "Extension Payment); Purchaser may elect this option up to three consecutive instances for a total extension of 90 days. The Extension Payment shall be non-refundable but applied to the purchase price. b. At the Closing, the following shall occur: (i) Purchaser, at its sole cost and expense, shall deliver or cause to be delivered at Closing the following: 1. The balance of the Purchase Price as set forth in Section 2 hereof, subject to prorations, adjustments and credits as described in this Agreement; and 2. Execute and deliver or obtain for delivery any instruments reasonably necessary to close this transaction, including, by way of example but not limitation, [corporate] [limited partnership certificates] and resolutions, closing statements, corporate resolutions or affidavits and delivery of instruments reasonably required by the title agent. (ii) Seller, at its sole cost and expense, shall deliver or cause to be delivered to Purchaser the following: I. General Warranty Deed fully executed and acknowledged by Seller, conveying, to Purchaser the Property, subject only to (a) real estate taxes for the year of closing, if any, which are not yet due and payable, and subsequent years; (b) zoning and use restrictions in effect or which may hereafter come into existence due to governmental action; and (c) easements and restrictions of record which have been approved by Purchaser; C:\Docurnents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61\Twnhse_ Contract_Final.doc 5 2. Assignment of all sewer and water taps, impact fee credits, licenses, permits, plans and approvals, if any; 3. Affidavit attesting to the absence, of any financing statements, claims of lien or potential lienors known to Seller and further attesting that there have been no improvements or repairs to the Property which remain unpaid for ninety (90) days immediately preceding the date of Closing; 4. A certificate meeting the requirements of Section 1445 of the Internal Revenue Code executed and sworn to by Seller; 5. Evidence reasonably satisfactory to Purchaser and the title agent that the person or persons executing the closing documents on behalf of Seller have full right, power and authority to do so; 6. Execute and deliver or obtain for delivery any other instruments reasonably necessary to close this transaction, including, by way of example but not limitation, closing statements, releases, affidavits and delivery of instruments reasonably required by the title agent; 7. Deliver all Intangible Personal Property, if any, III Seller's possessIOn. c. The following items shall be prorated or adjusted at the closing: (i) Real estate taxes and assessments, shall be prorated as of the Closing Date. Real estate taxes and assessments shall be prorated based on actual taxes and assessments for the year of Closing, or, if same are not available, on taxes and assessments for the preceding year, subject to reproration between the parties upon receipt of fmal tax bill for the year of the closing. d. Upon completion of the Closing, (i) Seller shall deliver to Purchaser possession of the Property; and (ii) Escrow Agent shall promptly record the deed of conveyance, the mortgage and any other applicable closing documents upon confmnation of clearance of all funds. e. Purchaser, at closing, shall pay the recording fee for the deed and documentary stamp tax on the deed of conveyance . f. Seller, at closing shall pay the premium for the Owner's Title Insurance Policy based on the minimum promulgated rate. g. Certified, confmned and ratified special assessment liens as of the date hereof shall be paid by Seller and pending liens as of the date hereof shall be assumed by Purchaser. Section 8. Evidence of Title and Title Insurance. a. On or before ninety (90) days after the Effective Date, Purchaser, or its counsel, shall obtain, at Seller's expense not to exceed the minimum promulgated rate set forth by the Insurance Commissioner of the State of Florida a title insurance commitment for an AL T A Form B marketability policy issued by Commonwealth Land Title Insurance Company (the "Title Company") in the full amount of the Purchase Price (the "Commitment"), together with legible copies of any encumbrances listed thereon. Purchaser will provide Seller either with a credit in the amount of the title agent's earned title premium at closing or will cause the title agent to remit C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK6I \Twnhse_Contract_Final.doc 6 such amount directly to the Seller at closing. The Commitment shall have an effective date that is after the Effective Date of the Agreement and that is within 10 days of the date of its issuance. At the Closing, Title Company shall deliver an endorsement to, or "mark-up" of, the Commitment deleting all Schedule B-1 requirements, all standard exceptions except taxes for the current year not then due and payable, and the "gap" exceptions. b. If the Commitment contains any exceptions which render title unmarketable or adversely affect the value of the Property or Purchaser's intended use of the Property as set forth in Purchaser's proposal to the Seller's Request for Proposal issued on August 1,2007 shown as Exhibit "B". Purchaser shall deliver written notice to Seller specifying the additional exceptions that render title unmarketable or objectionable to Purchaser. Such notice shall be given not later than fifteen (15) days after receipt of the Commitment by Purchaser. Upon receipt of the notice, Seller shall have thirty (30) days in which to remove the additional exceptions with reasonable effort and reasonable expenditures. c. Seller may, but is not obligated, to cure any objections . If Seller fails to remove any such objections within thirty (30) days after notice to Seller, Purchaser may elect by giving written notice to Seller, which notice must be received by Seller before the date that is five (5) business days after the end of such thirty (3.0) day period, either to (i) reject title as it then exists and terminate this Agreement and thereupon be entitled to a return of the Deposit, or (ii) waive such objections and proceed with the Closing and accept the Property subject to such exceptions without reduction of the Purchase Price. Upon return of the Deposit to Purchaser pursuant to subparagraph (i) above, this Agreement shall cease and terminate and the parties shall have no further rights, duties, or obligations under this Agreement, except for those rights, duties and obligations that specifically survive termination of this Agreement. If Purchaser fails to send any notice by the required date, Purchaser shall be deemed to have waived the objections to such exceptions and shall proceed to the Closing as provided by this Agreement. d. If any subsequent endorsement to the Commitment reveals any additional exceptions not permitted by this Agreement, Seller shall have fifteen (15) days in which to remove such additional exceptions, subject to the limitations set forth above. If Seller is unable to remove such additional exceptions, Purchaser shall have the same rights and remedies as provided above, except that the Closing shall not be extended more than thirty (30) days to permit Seller to cure any such additional exceptions. e. Seller and Purchaser each agree to provide reasonable affidavits and documentation to enable the Title Company to delete all Schedule B-1 requirements, the "gap" exception, and the construction lien and parties in possession exceptions from the Commitment at Closing. Seller and Purchaser each shall be responsible for satisfying those Schedule B-1 requirements applicable to each of them. Section 9. Survey. Purchaser may obtain, at Purchaser's expense, a survey of the Property. If the survey shows any encroachment on the Property, the same shall be treated as a title defect and the notice and cure provisions hereof shall control. The legal descriptions prepared by the surveyor shall be utilized as the legal descriptions for the Warranty Deed given by Seller to Purchaser. Section 10. Representations of Purchaser and Seller. Seller and Purchaser respectively hereby make the following representations. Such representations shall also be deemed made as of the Closing Date and the remedies for breach thereof shall survive Closing: C:\Documents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61 \Twnhse _ Contract]inal.doc 7 a. Purchaser'Representations. To induce Seller to enter into this Agreement and to sell the Property, Purchaser represents and warrants to Seller: (i) Except for this Agreement, Purchaser has entered into no other purchase or commission agreement with respect to the Property. (ii) Purchaser shall pay prior to Closing or arrange for payment after Closing of all claims, liabilities or expenses associated with its inspection, permitting and development of the Property, except as otherwise provided herein. (iii) Purchaser has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition or suffered the fuing of an involuntary petition by Purchaser's creditors, (c) suffered the appointment of a receiver to take all, or substantially all, of Purchaser's assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser's assets, or ( e) admitted in writing its inability to pay its debts as they fall due, and no such action is threatened or contemplated. If any of such actions have been taken or brought against Purchaser, then prior to the date hereof the same have been fully disclosed and Purchaser discharged therefrom so that there are no prohibitions or conditions upon Purchaser's acquisition of the Property. (iv) Neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated by this Agreement will result (either immediately or after the passage of time and/or the giving of notice) in breach or default by Purchaser under any agreement or understanding to which Purchaser is a party or by which Purchaser may be bound or which would have an effect upon Purchaser's ability to fully perform its obligations under this Agreement. (v) That Purchaser has the right, power and authority to execute, deliver and perform this Agreement without obtaining any consents or approvals from or the taking of any action with respect to, any third parties. This Agreement, when executed and delivered by Purchaser and Seller, will constitute the valid and binding Agreement of Purchaser. (vi) The execution and delivery of this Agreement and the performance by Purchaser of the obligations hereunder have been duly authorized by the Purchaser as may be required, and no further action or approval is required in order to constitute this agreement as a binding obligation of the Purchaser. (vii) The execution and delivery of the Agreement and the consummation of the transaction contemplated hereunder on the part of the Purchaser do not and will not violate the organizational documents of Purchaser or any shareholders agreement of the Purchaser, do not and will not conflict with or result in the breach of any condition or provision, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the terms of any contract, mortgage, lien, lease, agreement, indenture, instrument or judgment to which the Purchaser is a party. (viii) All of the representations, warranties and covenants of Purchaser contained in this agreement or in any other document delivered to Seller in connection with the transaction contemplated herein, shall be true and correct in all material respects and not in the default at the time of closing, just as though they were made at such time. (ix) Purchaser shall indemnify, hold harmless and defend Seller and its agents against all claims, demands, losses, liabilities, costs and expenses, including attorney's C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse_ Contract_Final. doc 8 fees, imposed upon or accruing against Seller as a result of the representations contained in this paragraph. b. Seller's Representations. To induce Purchaser to enter into this Agreement and to purchase the Property, Seller represents and warrants to Purchaser that: (i) That Seller owns the entire fee simple title to the Property, legal and equitable, subject only to the Permitted Exceptions (which are title exceptions disclosed by the Title Commitment or survey and which do not adversely affect Purchaser's ability to construct the Project in the Purchaser's reasonable discretion); (ii) That Seller has no knowledge regarding, and has received no written notice of, violations of any law, ordinance, order or regulation affecting the Property issued by any governmental or quasi-governmental authority having jurisdiction over the Property that has not been corrected; and that before the Closing, Seller shall promptly disclose to Purchaser any knowledge regarding, and furnish to Purchaser copies of any and all written notices of, violations that Seller receives between the Effective Date and the Closing Date from any governmental or quasi-governmental authorities having jurisdiction over the Property; (iii) That there are no (i) existing or pending improvement liens affecting the Property; (ii) existing, pending, or threatened lawsuits or appeals of prior lawsuits affecting the Property or Seller; (iii) existing, pending, or threatened condemnation proceedings affecting the Property; (iv) except as disclosed to Purchaser by Seller, any existing, pending, or threatened zoning, building, or other moratoria, down zoning petitions, proceedings, restrictive allocations, or similar matters that could affect Purchaser's use of the Property, the value of the Property or the issuance of building permits or certificates of occupancy with respect to the Property; (v) existing, pending, or threatened water or sewer hookup, water extraction, electrical or other utility moratoria; or (vi) pending real estate tax appeals or protests with respect to the Property before any applicable governmental authority; (iv) That the Property is not to Seller's knowledge subject to any declaration of protective covenants, use restrictions or any homeowners' associations by Seller, or its successors and assigns; (v) That there are no other purchase and sale agreements, nor options or rights of first refusal in effect as of the Effective Date relating to the Property nor will any such interest be in effect as of the time of Closing; (vi) That there are no judgments, encumbrances or liens against the Property or Seller that will remain unsatisfied at the time of Closing; (vii) Seller has no knowledge of any impact fees currently due and payable which are attributable to the Property. That all impact fees, use fees, and assessments (including those of any homeowners, property owners, or similar associations) related to the Property have been paid or will be paid in full by Seller before Closing, and the benefits of them are assignable to Purchaser without additional cost to Purchaser; (viii) That Seller has not received a written summons, citation, directive, notice, complaint, or letter from the United States Environmental Protection Agency, the State of Florida Department of Environmental Protection, or other federal, state, or local governmental agency or authority specifying any alleged violation of any environmental law, rule, regulation, or C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract_Final.doc 9 order at or on the Property and, to the best of Seller's knowledge, the Property is not currently under investigation for any such violation; (ix) That there are no environmental mitigation areas on the Property and there are no environmental mitigation requirements for the Property; (x) During the term of this Agreement, Seller shall not, without in each instance first obtaining Purchaser's written consent, which may be withheld in Purchaser's reasonable discretion, consent to or permit (i) any modification, termination or alteration to existing easements, dedications, covenants, conditions, restrictions, or rights of way adversely affecting Purchaser's intended use for the Property, (ii) any new easements, covenants, dedications, conditions, restrictions, or rights of way affecting Purchaser's intended use for the Property, (iii) any zoning changes or other changes of governmental approvals; (xi) (xii) That Seller is not a "foreign person" within the meaning of the Foreign Investment in Real Property Tax Act (FIRPT A), as amended; (xiii) That Seller is solvent, and no receivership, bankruptcy, or reorganization proceedings are pending or, to Seller's knowledge, contemplated against Seller in any court; (xiv) Seller has the right, power, and authority to execute, deliver, and perform this Agreement without obtaining any consents or approvals from, or the taking of any other actions with respect to, any third parties, and this Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding Agreement of Seller; (xv) That, at all times during the term of this Agreement and as of the Closing, all of Seller's representations, warranties, and covenants in this Agreement shall be true and correct; (xvi) That no representation or warranty by Seller contained in this Agreement and no statement delivered or information supplied to Purchaser pursuant to this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements or information contained in them or in this Agreement not misleading; and No inquiry, examination, or analysis made by Purchaser (or the results of same) shall reduce, limit or otherwise affect the representations and warranties made by Seller in this Agreement. Section 11. Remedies. In the event of a breach by Purchaser of its obligations under this Agreement, Seller may terminate this Agreement by written notice to Purchaser specifying the breach, and Purchaser shall have five (5) business days opportunity to cure the same (provided that no such cure period shall apply for a breach of the obligation to close by the Closing Date. Purchaser shall fail to close for reasons not caused by Seller, the Deposit made by Purchaser shall be retained by Seller as agreed and liquidated damages for withholding the Property from the market and for expenses incurred and the parties shall thereupon be relieved of any further liability hereunder. In the event Seller shall fail to close for reasons not caused by Purchaser or due to Seller's inability to convey marketable title according to Section 10 hereof, Purchaser shall have the right to demand return of the Deposit paid hereunder, upon which return of Deposit the parties shall have no further liability hereunder, or, in the alternative, Purchaser shall have the right to seek specific performance and/or damages. C:\Docurnents and Settings\buckleya\Local Settings\Temporary Internet Files\OLK61 \Twnhse _ Contract_Final.doc 10 Section 12. Destruction. Damag:e or Taking: Prior to Closin2. If, prior to Closing, the Property is destroyed, damaged or becomes subject to condemnation or eminent domain proceedings, the Purchaser shall have the option, which must be exercised within ten (10) days after its receipt of written notice from SeUer advising of such destruction, damage or taking (which Seller hereby agrees to give), to terminate this Agreement or to proceed with the Closing, without reduction in the Purchase Price. If Purchaser elects to terminate this Agreement, the Deposit shall be returned to Purchaser and neither party shall have any further rights, duties or obligations hereunder, except as otherwise provided herein. If Purchaser elects to proceed with the Closing, Purchaser shall be entitled to the insurance proceeds or condemnation proceeds payable as a result of such damage, destruction or taking up to the amount of the Purchase Price and, to the extent the same may be necessary or appropriate, Seller shall assign to Purchaser, at Closing, Seller's rights to such proceeds up to the amount of the Purchase Price, and Seller will not settle or adjust any insurance claims without Purchaser's prior consent. All insurance proceeds or condemnation proceeds in excess of the Purchase Price shall belong to and be retained by Seller. Section 13. Real Estate Commission. The parties each represent and warrant that there are no real estate agents or brokers or transactional brokers involved in this transaction. Each party agrees to indemnify and hold harmless the other from all claims or demands of any other real estate agent or broker or transactional broker claiming by, through or under said party. This indemnification shall also include payment of court costs and attorneys fees, including those incurred in appellate proceedings. This indemnification shall survive Closinll and/or termination of this Allfeement. Section 14. Prohibition Ag:ainst Recordin2. Neither this Agreement nor any part hereof, shall be recorded among the Public Records of any County in the State of Florida. Section 15. Confidentiality. At all times before the Closing Date of the Property, Purchaser agrees to hold in strict confidence and not to disclose to any other party without the prior written consent of Seller, all information regarding the Property, as expressed in this Agreement, except as may be required by applicable law or as otherwise contemplated in this Agreement, or to Purchaser's legal and financial advisors, lending institutions, and Purchaser's investors. Section 16. Notices. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested; by delivering the same in person to such party; by prepaid telegram or telex; by facsimile copy or by express mail. Notice given in accordance herewith shall be effective upon receipt at the address of the party to be served. For purposes of notice, the addresses of the parties shall be as follows: C:\Documents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract]inal.doc 11 If to Seller, to: Boynton Beach Community Redevelopment Agency 915 S. Federal Highway Boynton Beach, FL 33435 Attn: Lisa A. Bright, Executive Director Telephone: 561-737-3256 Fax: 561-737-32588 If to Purchaser, to: Oceanbreeze, LLC 615 Crescent Executive Court, Suite 120 Lake Mary, Florida 32746 Attn: Todd Borck Telephone: (407) 333-1440 Facsimile: (407) 333-1340 with a copy to: David W. Craft, P.A. 3418 Poinsettia Ave. West Palm Beach, FL 33407-4891 Attn: David W. Craft, Esquire Telephone: (561) 844-3131 Facsimile: (561) 844-6267 with a copy to: Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A. 20 I E. Pine, Suite 500 Orlando, Florida 32801 Attn: N. Dwayne Gray, Jr., Esquire Telephone: (407) 425-6559 Facsimile: (407) 422-6583 If to Escrow Agent, to: Goren, Cherof, Doody & Ezrol, P.A. 3099 E. Commercial Blvd., Suite 200 Ft. Lauderdale, FL 33308 Attn: Donald J. Doody, Esquire Telephone: (954) 771-4500 Facsimile: (954) 771-4923 Section 17. Assi2ns. This Agreement shall bind and insure to the benefit of Purchaser and Seller and their respective heirs, executors, administrators, personal and legal representatives, successors and assigns. Purchaser may not assign Purchaser's rights under this Agreement without the prior written consent of Seller. C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract_Final.doc 12 Section 18. Entire A2reement. This Agreement and all exhibits, when accepted by Seller, shall constitute the entire agreement between Seller and Purchaser concerning the sale of the Property and supersedes all prior agreements, representations or understandings, whether oral or written, between the parties and no modification hereof or subsequent agreement relative to the subject matter hereof shall be binding on either party unless reduced to writing and signed by the party to be bound. This Agreement, when accepted by Seller, shall be binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns. Section 19. Counterparts. This Agreement may be executed in multiple counterparts, all of which together shall constitute one agreement. A facsimile signature shall be deemed to be an original. Offer and acceptance of this Agreement by facsimile is binding. Section 20. Time of Essence. Time is important to both Seller and Purchaser in the performance of this Agreement, and they have agreed that strict compliance is required as to any date or time period set out or described herein. All references to days herein (unless otherwise specified) shall include Saturdays, Sundays and legal holidays. If the final date of any period which is set out in any section of this Agreement falls upon a Saturday, Sunday or legal holiday under the laws of the United States or the State of Florida, then, in such event, the time of such period shall be extended to the next day which is not a Saturday, Sunday or legal holiday. Section 21. Effective Date. Whenever the term or phrase "effective date" or "date hereof' or other similar phrases describing the date this Agreement becomes binding on Seller and Purchaser are used in this Agreement, such terms or phrases shall mean and refer to the date on which a counterpart or counterparts of this Agreement executed by Seller and Purchaser, together with the Initial Deposit, are deposited with the Escrow Agent. Section 22. Time for Acceptance. Delivery of this document to Purchaser shall not be deemed nor taken to be an offer to sell by Seller. Only when executed by Purchaser or Seller and delivered to the other party hereto shall this Agreement constitute an offer to buy or sell the Property, as the case may be, on the terms herein set forth, acceptable by the party receiving such executed Agreement within seven (7) business days after such receipt, by executing this Agreement and delivering the original hereof to the Escrow Agent and an originally signed copy hereof to the other party hereto. Failure to accept in the manner and within the time specified shall constitute a rejection and termination of such offer. No acceptance shall be valid and binding upon Seller unless in writing and signed by an authorized officer of Seller. Section 23. Attorney's Fees. In the event either party deems it necessary to cause litigation to enforce, interpret or construe the terms of this Agreement, court costs and attorneys fees, including those incurred in appellate proceedings, shall be awarded to the prevailing party. In the event of enforcement of this Agreement, or any dispute as to interpretation or construction hereof the laws of the State of Florida shall apply, and this Agreement shall not be construed more strictly against one party than C:\Documents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract_Fina1.doc 13 against the other merely by virtue of the fact that this Agreement may have been prepared by counsel for one of the parties, it being recognized that both Seller and Purchaser have contributed substantially and materially to the preparation of this Agreement. In the event of litigation, the parties hereto agree that all suits shall be instituted and maintained in the Circuit Court in and for Palm Beach County, Florida, the jurisdiction of which Court the parties. hereby consent to. Purchaser and Seller mutually agree that they waive all rights to a trial by jury in the event of any dispute or court action arising from or related to this Agreement. The parties acknowledge that this waiver is a significant consideration to, and a material inducement for, Purchaser and Seller to enter into this Agreement. Section 24. Severability . If anyone or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceabi}ity shall not affect any other provision hereof. Section 25. Headin2s. The headings of the sections, paragraphs and subdivisions of this Agreement are for convenience and reference only, and shall not limit or otherwise affect any of the terms hereof. C:\Documents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse_ Contract_Final.doc 14 EXECUTED as of the date and year written below. SELLER: Boynton Beach Community Redevelopment Agency, a public agency created pursuant to Chapter 163, Part ill, of the Florida Statutes By: Title: Dated: ,2008 PURCHASER: Oceanbreeze, LLC, a Florida limited liability company By: Title: Dated: ,2008 C:\Docurnents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract_Final.doc 15 ESCROW AGENT We acknowledge receipt of the Initial Deposit in the amount of ONE HUNDRED FORTY THOUSAND and NollOO Dollars ($140,000.00) subject to clearance and agree to be bound by the terms and conditions of this Agreement. GOREN, CHEROF, DOODY, & EZROL P.A. By: Printed Name: Dated: ,2008 C:\Documents and Settings\buckleya\Local Settings\Ternporary Internet Files\OLK61 \Twnhse _ Contract_Final.doc 16 EXHIBIT "A" Le2al Description Parcell A PORTION OF BLOCK C OF THE PLAT OF BOYNTON HILLS, BOYNTON BEACH, PALM BEACH COUNTY. FLORIDA, ACCORDING TO THE PLAT THEREOF As RECORDED IN PLAT BOOK 4, PAGE 51 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHEAST CORNER OF LOT 147 OF SAID BLOCK C; THENCE SOUTH (ASSUMED), ALONG THE EAST LINE OF SAID LOT 147, A DISTANCE OF 20.00 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE SOUTH, ALONG THE EAST LINE OF SAID BLOCK C, 228.36 FEET TO THE SOUTHEAST CORNER OF LOT 134 OF SAID BLOCK C; THENCE WEST, ALONG THE SOUTH LINE OF SAID LOT 134, A DISTANCE OF 100 FEET TO THE EAST LINE OF LOTS 135 AND 136 OF SAID BLOCK C; THENCE SOUTH, ALONG SAID EAST LINE AND THE SOUTHERLY PROLONGATION THEREOF, 189.19 FEET TO THE CENTERLINE OF GRAND CIRCLE "N", BEING A CURVE CONCA VE SOUTHWESTERLY HAVING A RADIUS OF 591.65 FEET, (A LINE RADIAL TO SAID CURVE BEARS N.41 :04'57"E.); THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE 5.02 FEET THROUGH A CENTRAL ANGLE OF 0:29'11" TO THE INTERSECTION WITH THE NORTHERLY PROLONGATION OF THE EAST LINE OF LOT 129 OF SAID BLOCK C, (a line radial to said curve at the said point of intersection bears North 40 degrees, 35' 46" East); THENCE SOUTH, ALONG THE SAID NORTHERLY PROLONGATION OF THE EAST LINE OF LOT 129, A DISTANCE OF 57.60 FEET TO THE SOUTHEAST CORNER OF SAID LOT 129; THENCE WEST, ALONG THE SOUTH LINE OF SAID LOT 129 AND THE SOUTH LINE OF LOT 128, A DISTANCE OF 150.00 FEET TO THE WEST LINE OF SAID LOT 128; THENCE NORTH, ALONG SAID WEST LINE, 15.00 FEET TO THE SOUTH LINE OF LOTS 127 AND 126 OF SAID BLOCK C; THENCE WEST, ALONG THE SAID SOUTH LINE OF LOTS 127 AND 126, A DISTANCE OF 100.00 FEET TO THE WEST LINE OF SAID LOT 126; THENCE NORTH, ALONG SAID WEST LINE, 45.00 FEET TO THE SOUTH LINE OF LOTS 124 AND 12j OF SAID BLOCK C; THENCE WEST, ALONG SAID SOUTH LINE, 100.00 FEET TO THE WEST LINE OF SAID LOT 123; THENCE NORTH, ALONG SAID WEST LINE AND THE NORTHERLY PROLONGATION THEREOF, 193.23 FEET TO THE INTERSECTION WITH THE WESTERLY PROLONGATION OF THE SOUTH LINE OF LOT 141 OF SAID BLOCK C; THENCE N.76:46'35"E., ALONG SAID WESTERLY PROLONGATION, 157.99 FEET TO THE WEST LINE OF SAID LOT 141; THENCE NORTH, ALONG SAID WEST LINE, 101.25 FEET TO THE NORTH LINE OF SAID LOT 141; THENCE N.83:17'55"E., ALONG THE NORTH LINE OF SAID LOTS 141 AND 142 OF SAID BLOCK C, A DISTANCE OF 75.51 FEET TO A LINE 25 FEET WEST OF AND PARALLEL WITH THE EAST LINE OF LOT 150 OF SAID BLOCK C; THENCE NORTH, ALONG SAID PARALLEL LINE, 92.44 FEET TO THE NORTH LINE OF LOTS 150, 149, 148 AND 147 OF SAID BLOCK C; THENCE EAST, ALONG SAID NORTH LINE, 205.00 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 20.00 FEET AND A CENTRAL ANGLE OF 90:00'00"; THENCE SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, 31.42 FEET TO THE POINT OF BEGINNING AFOREDESCRIBED. Parcel 3 Lots 130, 131, 132, and 133, Block "c" "Boynton Hills", according to the plat thereof, as recorded in Plat Book 4, Page 51, of the Public Records of Palm Beach County, Florida together with vacated portion of N. W. 7th Court, lying adjacent to and southerly of Lot 130, Block "c" recorded in Plat Book 4, Page 51. C:\Documents and Settings\bucldeya\Local Settings\Ternporary Internet Files\OLK6] \Twnhse _ ContractJinal.doc 17 EXECUTED as of the date and year written below. SELLER: Boynton Beach Community Redevelopment Agency, a public agency created pursuant to Chapter 163, Part ill, of the Florida Statutes By: Title: Dated: ,2008 PURCHASER: Oceanbreeze, LLC, a Florida limited liability company . 2008 C:\Documents and Settings\tborck\Local Settings\Tcrnporary Internet Files\OLKBC\Twnhse _ Contract]inal.doc 15 Memorandum of Understanding CWHIP Community Workforce Housing Innovation Pilot Program Boynton Beach Community Redevelopment Agency (the "CRA"), a public agency created pursuant to Chapter 163, Part ill, of the Florida Statutes entered into an agreement with Oceanbreeze, LLC on October 9, 2007 regarding the development of Oceanbreeze, a mixed-use project located in Boynton Beach Beach, FL. In connection with the Oceanbreeze development, Oceanbreeze, LLC is submitting an application to the Florida Housing Finance Corporation for CWHIP funding. As part of that application, the undersigned hereby evidence their understanding with respect to their participation in and contributions to the project. This memorandum is executed by the parties for the purpose of facilitating the CWHlP application and it is agreed to and acknowledged by both parties that this Memorandum is not nor is it intended to be a contract creating any legal obligations upon either party. By executing this Memorandum of Understanding, the parties set forth their understanding of the general components listed below for the project and agree to comply with the requirements of the CWHIP program: 1. Oceanbreeze will have 80 percent of the units in the Project for Workforce Housing and 50 percent of the units for Essential Services Personnel; 2. Ocean breeze will have units that are to be made available to first-time homebuyers earning up to 80% of the Area Median Income Guideline established by the U.S. Department of Housing and Urban Development; 3. The CRA will make a contribution to Oceanbreeze, LLC which shall consist of the sale of the site at a price which is less than that paid by the CRA. The sales price of the site to Oceanbreeze, LLC is evidenced by a purchase contract which is separate from this agreement; 4. Oceanbreeze, LLC will be responsible for managing the development of Oceanbreeze in its entirety, procuring all other needed financing, marketing of the units, qualifying the buyers, and managing unit closings; 5. Both parties will provide in a timely manner any additional information that may be required by the Florida Housing Finance Corporation in connection with the CWHIP program; 6. Both parties will comply with any and all program requirements contained in or policies implemented as a result of House Bill 1375 (Section 420.5095, F.S.). ...., .;: The parties of this Memorandum of Understanding will work together for the purpose of providing Community Workforce Housing to individuals employed/working in Palm Beach County. Dated as of January 23, 2008 Agreeing Parties: Signature Signature ~~~ Print Name Print Name -t:Jd L. 60 vck Title ~ ~ Oceanbreeze, LL Title Boynton Beach Community Redevelopment . Agency I RESOLUTION NO. Ofro, 2 3 A RESOLUTION OF THE BOYNTON BEACH COMMUNITY 4 REDEVELOPMENT AGENCY, APPROVING AND 5 AUTHORIZING THE CHAIRMAN OF THE BOARD OR IT'S 6 VICE CHAIR TO EXECUTE TWO (2) SEPARATE PURCHASE 7 AND SALE AGREEMENTS BETWEEN THE BOYNTON BEACH 8 COMMUNITY REDEVELOPMENT AGENCY ("CRA") AND 9 OCEANBREEZE, LLC; PROVIDING FOR REPEAL IN THE 10 EVENT OF CONFLICTS; PROVIDING FOR SEVERABILITY; 11 PROVIDING FOR AN EFFECTIVE DATE. 12 13 WHEREAS, the BOYNTON BEACH COMMUNITY REDEVELOPMENT 14 AGENCY ("CRA") deems it to be in the best interests of the CRA to approve and 15 authorize the Chairman of the Board or it's Vice Chair to execute two (2) separate 16 Purchase and Sale Agreements between the Boynton Beach Community 17 Redevelopment Agency ("CRA") and Oceanbreeze, LLC. 18 19 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF 20 COMMISSIONERS OF THE BOYNTON BEACH COMMUNITY 21 REDEVELOPMENT AGENCY: 22 23 SECTION 1. The foregoing "Whereas" clauses are true and correct and hereby 24 ratified and confirmed by the City Commission. All exhibits attached hereto are hereby 25 incorporated herein. 26 27 SECTION 2. The Boynton Beach Community Redevelopment Agency hereby 28 approves and authorizes Chairman of the Board or it's Vice Chair to execute two (2) 29 separate Purchase and Sale Agreements between the Boynton Beach Community 30 Redevelopment Agency and Oceanbreeze, LLC; a copy of the Agreements for Purchase 31 and Sale are attached hereto as Exhibit "A". 32 33 SECTION 3. The Boynton Beach Community Redevelopment Agency hereby 34 delegates the appropriate Board officials the authority to consummate the transaction 35 contemplated by each of the Agreements. 36 37 SECTION 4. If any clause, section, other part or application of this Resolution 38 is held by any court of competent jurisdiction to be unconstitutional or invalid, in part 39 or application, it shall not affect the validity of the remaining portions or applications 40 of this Resolution. 41 42 SECTION 5. All resolutions or parts of resolutions in conflict herewith are 43 hereby repealed to the extent of such conflict. 44 45 Page 1 of2 1 2 3 SECTION 6. EFFECTIVE DATE 4 5 This resolution shall become effective immediately upon its passage and 6 adoption. 7 8 ADOPTED by the Boynton Beach Community Redevelopment Agency this 9 _day of January 2008. 10 11 BOYNTON BEACH COMMUNITY 12 REDEVELOPMENT AGENCY 13 BOYNTON BEACH COMMUNITY 14 REDEVELOPMENT AGENCY 15 16 17 18 JERRY TAYLOR, CHAIR 19 20 21 J. TAYLOR 22 23 J. RODRIGUEZ 24 25 W. HAY 26 27 M. ROSS 28 29 R.WEILAND 30 31 H:\2007\070473 BBCRA\Reso 2007\Resolution 2008 OceanBreeze, LLC.doc Page 2 of2 1 RESOLUTION NO. Of-(9 2 3 A RESOLUTION OF THE BOYNTON BEACH COMMUNITY 4 REDEVELOPMENT AGENCY, APPROVING THE 5 MEMORANDUM OF UNDERSTANDING RELATIVE TO THE 6 COMMUNITY WORKFORCE HOUSING INNOVATION PILOT 7 PROGRAM; PROVIDING FOR REPEAL IN THE EVENT OF 8 CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING 9 FOR AN EFFECTIVE DATE. 10 11 WHEREAS, the BOYNTON BEACH COMMUNITY REDEVELOPMENT 12 AGENCY ("CRA") deems it to be in the best interests of the CRA to approve the 13 Memorandum of Understanding relative to the Community Workforce Housing 14 Innovation Pilot Program. 15 16 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF 17 COMMISSIONERS OF THE BOYNTON BEACH COMMUNITY 18 REDEVELOPMENT AGENCY: 19 20 SECTION 1. The foregoing "Whereas" clauses are true and correct and hereby 21 ratified and confirmed by the City Commission. All exhibits attached hereto are hereby 22 incorporated herein. 23 24 SECTION 2. The Boynton Beach Community Redevelopment Agency hereby 25 approves the Memorandum of Understanding relative to the Community Workforce 26 Housing Innovation Pilot Program; a copy of the Memorandum is attached hereto as 27 Exhibit "A". 28 29 SECTION 3. The Boynton Beach Community Redevelopment Agency hereby 30 delegates the appropriate Board officials the authority to consummate the transaction 31 contemplated by the Agreement. 32 33 SECTION 4. If any clause, section, other part or application of this Resolution 34 is held by any court of competent jurisdiction to be unconstitutional or invalid, in part 35 or application, it shall not affect the validity of the remaining portions or applications 36 of this Resolution. 37 38 SECTION 5. All resolutions or parts of resolutions in conflict herewith are 39 hereby repealed to the extent of such conflict. 40 41 42 43 44 45 Page 1 of2 1 SECTION 6. EFFECTIVE DATE 2 3 This resolution shall become effective immediately upon its passage and 4 adoption. 5 6 ADOPTED by the Boynton Beach Community Redevelopment Agency this 7 _day of January 2008. 8 9 BOYNTON BEACH COMMUNITY 10 REDEVELOPMENT AGENCY 11 12 13 14 JERRY TAYLOR, CHAIR 15 16 17 J. TAYLOR 18 19 J. RODRIGUEZ 20 21 W.HAY 22 23 M. ROSS 24 25 R.WEILAND 26 27 28 H:\2007\070473 BBCRA\Reso 2007\Resolution 2008 MOU.doc 29 30 Page 2 of2