Item F6BOARD OF COUNTY COMMISSIONERS
County of Monroe A
Mayor Heather Carruthers, District 3
( T$ne Florida Keys (, Mayor Pro Tem George Neugent, District 2
t� ) ��` ��
�' Danny L. Kolhage, District 1
David Rice, District 4
Sylvia J. Murphy, District 5
County Commission Meeting
May 18, 2016
Agenda Item Number: F.6
Agenda Item Summary #1672
BULK ITEM: No DEPARTMENT: Land Authority Governing Board
TIME APPROXIMATE: STAFF CONTACT: Charles Pattison (305) 295-5185
9:15 AM Land Authority
AGENDA ITEM WORDING: Approval of a resolution authorizing the purchase of an interest in
real property in the form of affordable housing deed restrictions on all existing and future units for
the purpose of preserving and providing affordable workforce housing at 541 White Street in Key
West, commonly referred to as Peary Court (Pending favorable consideration by the Key West City
Commission on May 3, 2016 and the Land Authority Advisory Committee on May 11, 2016).
ITEM BACKGROUND: A private party has entered into a contract to purchase Peary
Court. On May 3, 2016 the Key West City Commission will consider nominating the
property to receive Land Authority funding in exchange for an affordable workforce housing
deed restriction. See the attached draft City nominating resolution. Revised and additional
backup materials will be provided pending approval by the Key West City Commission and
the Land Authority Advisory Committee.
ADVISORY COMMITTEE ACTION: To be determined on May 11, 2016.
PREVIOUS RELEVANT BOCC ACTION: On February 10, 2016 the Board approved
adding Peary Court to the Acquisition List. At the time the City was planning to purchase
the property but the voters did not approve the required referendum on March 15, 2016.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: To be determined
DOCUMENTATION:
PearyCourt
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
Charles Pattison
Kathy Peters
Board of County Commissioners
If yes, amount:
Completed
Completed
Pending
05/03/2016 4:57 PM
05/03/2016 5:21 PM
05/18/2016 9:00 AM
Aerial Photograph of Subject Property
Peary Court
Key Wes
RESOLUTION NO.
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF KEY WEST, FLORIDA, NOMINATING THE
PROPERTY LOCATED AT 541 WHITE STREET, COMMONLY
REFERRED TO AS PEARY COURT, TO THE MONROE
COUNTY LAND AUTHORITY FOR FUNDING FOR THE
PURPOSE OF ACQUIRING AN INTEREST IN THE
PROPERTY IN THE FORM OF AFFORDABLE HOUSING
DEED RESTRICTIONS ON ALL EXISTING AND FUTURE
UNITS ON THE PROPERTY IN PERPETUITY FOR THE
PURPOSE OF PRESERVING AND PROVIDING AFFORDABLE
WORKFORCE HOUSING; PROVIDING FOR AN EFFECTIVE
DATE
WHEREAS, the City Commission has determined that there exists
a shortage of workforce housing available in the City of Key West;
and
WHEREAS, the City was unsuccessful in purchasing 157 dwelling
units at Peary Court for workforce housing based upon a 2016 voter
referendum; and
WHEREAS, the City has continued to evaluate methods to retain
affordable housing; and
WHEREAS, the Monroe County Land Authority holds approximately
12.5 million dollars of funds generated in the city of Key West
available for use to acquire affordable housing; and
WHEREAS, a private party has entered into a contract to
acquire the Peary Court property; and
Page 1 of 3
I'
WHEREAS, the potential purchaser has agreed to restrict the
157 units, and any other units constructed on the 24 plus acre
property, for use for affordable workforce housing in perpetuity
in exchange for $12.5 million dollars of Monroe County Land
Authority funds; and
WHEREAS, the acquisition of deed restrictions for affordable
housing is a sufficient interest in land justifying the use of
Land Authority funds; and
WHEREAS, the City Commission believes deed restricting the
24 plus acre parcel in perpetuity serves an immense public purpose
which preserves current housing and provides an avenue for
additional affordable workforce housing in the future;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF KEY WEST, FLORIDA, AS FOLLOWS:
Section 1: That the property located at 541 White Street,
commonly referred to as Peary Court, and containing approximately
24.1835 acres, is hereby nominated to the Monroe County Land
Authority for funding in the amount of $12,500,000.00 for the
purpose of providing affordable workforce housing by acquiring
restrictions so all existing and any future units constructed will
be restricted to affordable workforce housing in perpetuity
Page 2 of 3
I'
Section 2: That this Resolution shall go into effect
immediately upon its passage and adoption and authentication by
the signature of the presiding officer and the Clerk of the
Commission.
Passed and adopted by the City Commission at a meeting held
this day of
, 2016.
Authenticated by the Presiding officer and Clerk of the
Commission on dav of
Filed with the Clerk on
Mayor Craig Cates
Vice Mayor Clayton Lopez
Commissioner Sam Kaufman
Commissioner Richard Payne
Commissioner Margaret Romero
2016.
, 2016.
R,
Commissioner Billy Wardlow m. o
Commissioner Jimmy Weekley
CL
CRAIG�CATES, MAYOR
ATTEST:
CHERYL SMITH, CITY CLERK
Page 3 of 3
«- y4
i �t►� BOARD OF COUNTY COMMISSIONERS
County of Monroe", a Mayor Heather Carruthers, District 3
Mayor Pro Tern George Neugent, District 2
The Florida Keys Danny L. Kolhage, District I
�v4 David Rice, District
Sylvia J. Murphy, District 5
County Commission Meeting
May 18, 2016
Agenda Item Number: F.6
Agenda Item Summary #1672
BULK ITEM: No DEPARTMENT: Land Authority Governing Board
TIME APPROXIMATE: STAFF CONTACT: Charles Pattison (305) 295-5185
9:15 AM Land Authority
AGENDA ITEM WORDING: Approval of a resolution authorizing the purchase of an interest in
real property in the form of affordable housing deed restrictions on all existing and future units for
the purpose of preserving and providing affordable workforce housing at 541 White Street in Key
West, commonly referred to as Peary Court (Pending favorable consideration by the Key West City
Commission on May 3, 2016 and the Land Authority Advisory Committee on May 11, 2016).
ITEM BACKGROUND: A private party has entered into a contract to purchase Peary
Court. On May 3, 2016 the Key West City Commission will consider nominating the
property to receive Land Authority funding in exchange for an affordable workforce housing
deed restriction. See the attached draft City nominating resolution. Revised and additional
backup materials will be provided pending approval by the Key West City Commission and
the Land Authority Advisory Committee.
ADVISORY COMMITTEE ACTION: To be determined on May 11, 2016.
PREVIOUS RELEVANT BOCC ACTION: On February 10, 2016 the Board approved
adding Peary Court to the Acquisition List. At the time the City was planning to purchase
the property but the voters did not approve the required referendum on March 15, 2016.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: To be determined
DOCUMENTATION:
PearyCourt
F. 6. Revised Backup
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
Charles Pattison
Kathy Peters
Board of County Commissioners
If yes, amount:
Completed
Completed
Pending
05/03/2016 4:57 PM
05/03/2016 5:21 PM
05/18/2016 9:00 AM
C
RESOLUTION NO.
A RESOLUTION OF THE MONROE COUNTY
COMPREHENSIVE PLAN LAND AUTHORITY AUTHORIZING
THE PURCHASE OF AN INTEREST IN REAL PROPERTY IN
THE FORM OF AFFORDABLE HOUSING DEED
RESTRICTIONS ON ALL EXISTING AND FUTURE
DEVELOPMENT FOR THE PURPOSE OF PRESERVING AND
PROVIDING AFFORDABLE WORKFORCE HOUSING AT 541
WHITE STREET IN KEY WEST, COMMONLY REFERRED TO
AS PEARY COURT.
WHEREAS, section 380.0666(3), Florida Statutes, and section 2-398(6), Monroe County Code.
empower the Monroe County Comprehensive Plan Land Authority (hereinafter "Land Authority")
to acquire an interest in real property for the purpose of providing affordable housing to families
whose income does not exceed 160 percent of median family income of the area, and
WHEREAS, the residential development at 541 White Street, commonly known as Peary Court
(hereinafter "Subject Property") is currently owned by Peary Court Holdings LP and consists of
208 approved units, of which 157 units are currently existing, 3 units were existing but were
destroyed by fire and may be rebuilt as a matter of right, and 48 affordable building permit
allocations that have been awarded but are not yet built; and
WHEREAS, American Federated Title Corporation, as Trustee under Land Trust #2016PC
(hereinafter "Buyer") has a contract to purchase fee simple title to the Subject Property for a
price of $60 million and said transaction is scheduled to close prior to July 1, 2016; and
WHEREAS, Buyer has agreed to restrict all of the Subject Property, including all existing and
future units, in perpetuity to affordable housing in consideration for $12.5 million; and
WHEREAS, Key West City Commission Resolution 16-159 nominates the Subject Property as
an affordable housing site and requests the Land Authority to expend $12.5 million of tourist
impact tax revenue reserved for use in the Key West Area of Critical State Concern toward the
purchase of affordable housing deed restrictions so all existing and any future units constructed
will be restricted to affordable workforce housing in perpetuity; and
WHEREAS, the Land Authority Advisory Committee considered this resolution at meetings held
April 27, 2016 and May 11, 2016, and voted 4/0 to recommend approval with authorization for
staff to make minor revisions; NOW, THEREFORE,
BE IT RESOLVED BY THE MONROE COUNTY COMPREHENSIVE PLAN LAND
AUTHORITY -
Section 1. The Land Authority Executive Director and Legal Counsel are authorized to disburse
$12.5 million for the benefit of Buyer as consideration for the deed restrictions in the form of the
Declaration of Affordable Housing Restrictions shown in Attachment A, which shall be
evidenced by the execution and delivery of same prior to release of said funds. Said deed
restrictions shall be superior to all mortgages and shall not be subordinated.
Page 1 of 2
Section 2. Of the funds to be disbursed, $12.2 million shall be disbursed at the closing of
Buyer's purchase of the Subject Property. The $300,000 balance of the funding shall be
disbursed after October 1, 2016.
PASSED AND ADOPTED by the Monroe County Comprehensive Plan Land Authority at a
regular meeting on this day of 2016.
(Seal)
ATTEST:
Charles G. Pattison
Executive Director
Approved as to form and legality:
Adele V. Stones, Esquire
MONROE COUNTY COMPREHENSIVE
PLAN LAND AUTHORITY
David Rice
Chairman
Page 2of2
ATTACHMENT A
Prepared by and Return to:
Adele V. Stones, Esq.
221 Simonton Street
Key West, FL 33042
(305)294-0252
DECLARATION OF AFFORDABLE RENTAL HOUSING RESTRICTIONS
This Declaration of Affordable Rental Housing Restrictions (hereinafter
Declaration") is made and entered into this day of , 2016, by
American Federated Title Corporation, as Trustee under Land Trust #2016PC, a
Florida land trust (hereinafter "Declarant"), whose mailing address is 3850
Hollywood Boulevard, Suite 400, Hollywood, FL 33021 and the Monroe County
Comprehensive Plan Land Authority (hereinafter "Land Authority"), whose address
is 1200 Truman Avenue, Suite 207, Key West FL 33040 and the Housing Authority
of the City of Key West, Florida (hereinafter "Housing Authority"), whose address is
1400 Kennedy Drive, Key West, FL 33040, individually and collectively identified
as the Grantees and Beneficiaries of this Declaration.
This Declaration applies to all of the real property commonly known as Peary
Court in Key West, Florida, which includes the street addresses of 400 White Street
and 541 White Street, and which is more fully described in the Legal Description
attached hereto and incorporated herein as Exhibit A (hereinafter "Property").
WHEREAS, Declarant is the fee simple owner of the Property and deems it
desirable, in the public interest, and in the best interest of present owner, assigns
and successors -in -interest that the Property shall be used for affordable workforce
rental housing purposes, subject to the covenants and restrictions set forth herein.
WHEREAS, the Land Authority and the Housing Authority have
participated in the acquisition of the Property by the Declarant through the
contribution of funding in the amount of $12,500,000.00 for which the Land
Authority and the Housing Authority are receiving an interest in the Property
through this Declaration.
WHEREAS, it is the intention of the Declarant that the restrictions
contained herein shall be perpetual, run with the land and bind the Declarant, its
successors and assigns, and shall inure to the benefit of the Land Authority and the
Housing Authority.
NOW, THEREFORE, Declarant agrees that the Property shall be held and
conveyed subject to the following affordable workforce housing restrictions,
covenants and conditions, which shall run with the Property and be binding on all
parties having any right, title or interest in the Property or any part thereof, their
heirs, successors and assigns in perpetuity.
Page 1 of 6
I. DEFINITIONS
A. "Declarant" shall mean the owner of the Property and any subsequent
purchaser, mortgagee, devisee, transferee, grantee or holder of title in the Property
or any portion of the Property.
B. "Transfer" means any sale, assignment or transfer, voluntary,
involuntary or by operation of law (whether by deed, contract of sale, gift, devise,
bequest, trustee's sale, deed in lieu of foreclosure, or otherwise) of any interest in
the Property, including but not limited to, a fee simple interest, a joint tenancy
interest, a life estate, a leasehold interest, or an interest evidenced by a land
contract by which possession of the Property is transferred and Declarant retains
title.
C. "Transferee" shall mean an individual, or individuals, who receive a
Transfer of the Property from the Declarant.
All other terms shall have the same meaning given to them in the Key West
Work Force Housing Ordinance.
II. TERM AND ENFORCEABILITY
A. This Declaration shall run with the Property and bind the Declarant, its,
his or her heirs, legal representatives, executors, successors in interest and assigns
in perpetuity.
B. The Property is held and hereafter shall be held, conveyed, encumbered,
developed or redeveloped, used, rented, leased and occupied as affordable work force
rental housing subject to these covenants, conditions, restrictions and limitations.
All of the herein -stated covenants, conditions, restrictions and limitations are
intended to constitute both equitable servitudes and covenants running with the
land.
C. Any transferee, mortgagee, or purchaser of the Property, or of any
portion of or interest in the Property, by the acceptance of a deed therefore, whether
from Declarant or from any subsequent purchaser of the Property, or by the signing
of a contract or agreement to purchase the same, shall, by the acceptance of such
deed, mortgage, or transfer of interest by the signing of such contract or agreement,
be deemed to have consented to and accepted the covenants, conditions, restrictions
and limitations set forth herein. Any written instrument attempting or purporting
to sell, convey, grant, transfer, exchange, assign, or mortgage any legal or equitable
rights or interests to the Property shall be deemed null and void, where such
instrument purports or evidences an attempt to sell, convey, grant, transfer,
exchange or assign any right or interest to the Property where such instrument is
inconsistent with or contrary to the conditions or covenants contained herein. Any
deed, mortgage, or instrument of conveyance executed by or on behalf of Declarant
Page 2 of 6
or any subsequent grantee, devisee, heir, assignee or other transferee shall
expressly set forth verbatim this and the foregoing reservations, restrictions and
covenants or, in lieu thereof, incorporate them by specific reference to this
Declaration by Book and Page number(s) where recorded in the Public Records of
Monroe County, Florida.
D. In order to preserve through this Declaration the affordability of the
Property for persons with incomes within a specified range, the Land Authority and
Housing Authority or their assigns shall have the right to monitor and enforce
compliance with this Declaration. Declarant otherwise reserves the rights
necessary to implement the provisions of this Declaration.
III. IDENTIFICATION OF THE PROPERTY AFFECTED
A. Upon execution of this Declaration, the entire Property as described in
Exhibit A shall be subject to this Declaration and the City of Key West Land
Development Regulations, Chapter 122, Article V, Division 10, Section 122-1465
through 122-1500 (Work Force Housing Ordinance), as it currently exists, a copy of
which is attached as Exhibit B.
B. Pursuant to Section 122-1467(c) of the Work Force Housing Ordinance,
the total rental for all the units shall be based on each unit being affordable
housing (moderate income). The rental may be mixed among affordable housing
(low income), (median income), (moderate income) and (middle income) in order that
the total value of rental does not exceed ten percent of the rental of all the units as
affordable housing (moderate income).
C. The terms contained herein are the minimum standards imposed by
this Declaration. Nothing herein shall be construed to limit the City of Key West
from adopting standards or imposing conditions on future development that would
make future units at the Property (any units in excess of the existing 208 approved
units) more affordable than currently provided for by this Declaration.
IV. OCCUPANCY, LEASING AND USE OF THE PROPERTY
A. Subject to Paragraph C below, the Property shall be operated,
managed, developed or redeveloped and otherwise administered as affordable work
force rental housing pursuant to Section 122-1469 of the Work Force Housing
Ordinance and such other uses customarily accessory to residential use as may be
permitted by local zoning and land use regulations, except that as required by
Section 380.0666(3), Florida Statutes, under no circumstances shall the household's
income be allowed to exceed 160% of the median household income for Monroe
County adjusted for family size. Notwithstanding anything contained herein to the
contrary, in any year the U.S. Department of Housing and Urban Development
Page 3 of 6
(HUD) promulgated median household income for Monroe County increases and the
corresponding promulgated rental rate(s) decrease, Declarant shall not be obligated
to decrease the rental amount charged below the amount charged in the prior year.
B. Any unit that is vacant or becomes available for rental following the
date of execution of this Declaration shall be immediately subject to this
Declaration.
C. Any tenant or tenants occupying a unit under lease at the Property on
the date of execution of this Declaration may be entitled to enjoy the full term of
their existing lease plus one additional twelve (12) month lease term (said twelve
(12) month period shall be referred to as the ` Iransition Period"), provided said
tenant or tenants are in good standing under the terms of their lease(s) at lease
renewal. If said tenant(s) income qualify under the terms of this Declaration, the
rental rates described in Paragraph A above shall apply during the Transition
Period. If said tenants do not income qualify under the terms of this Declaration,
the rental rate charged during the Transition Period shall not exceed that
permitted otherwise for middle income tenants.
D. At a date not later than twenty-four (24) months from execution of this
Declaration the Transition Period described in Paragraph C above shall terminate
and all units on the Property shall be subject to this Declaration.
V. DEFAULTS AND REMEDIES: ASSIGNMENT OF RENTS
A. Upon any violation of the provisions of this Declaration the Housing
Authority or its assigns may declare a default under this Declaration by delivering
written notice thereof to the Declarant. After providing written notice of default,
the Housing Authority or assigns may apply to a court of competent jurisdiction for
specific performance of the Declaration, for an injunction prohibiting a proposed
sale, transfer, or lease in violation of this Declaration, for a declaration that a
prohibited transfer or lease is void, or for any such other relief as may be
appropriate.
B. Assignment of rents: Declarant hereby assigns to the Housing
Authority or its assigns the right to receive the rents due or collected from any units
identified to be in violation of this Declaration during the entire period those units
are occupied in violation of any of the terms of this Declaration provided the
Housing Authority, or its assigns, provides Declarant and any mortgagee holding a
first mortgage on the Property (at the address provided in such mortgage) with
written notice of default and thirty (30) days to cure. If Declarant is prevented from
curing said default within the prescribed thirty (30) day period due to causes
beyond the reasonable control of Declarant, the curative period shall be extended
for such time as Declarant is prevented from achieving the cure. Once such cause is
removed, the prescribed period shall continue to run.
Page 4 of 6
C. The remedies stated herein shall not be exclusive, but shall be
cumulative to all other remedies and rights the parties may lawfully. exercise.
VI. REQLIREMENTS FOR WRITTEN REPORTS FROM DECLARANT
Declarant shall provide a written report to the Housing Authority each year
on January 1, or on such other date as specified by the Housing Authority in
writing, which contains the information necessary to ensure continued compliance
with affordability criteria, including sworn tenant household verification
information, a statement that Declarant has complied with all provisions of this
Declaration, and, if applicable Declarant's explanation of any violation of any
provision of this Declaration. The report shall be submitted within thirty (30) days
of the specified date to the Housing Authority. Failure to provide a report in a
timely manner, or any misrepresentations on the report, shall constitute a default
under this Declaration.
VII. GENERAL PROVISIONS
A. The Land Authority and Housing Authority may assign their rights
and delegate their duties hereunder in writing without the consent of Declarant.
Upon such assignment the parties shall so notify each other.
B. Declarant shall be required to include in each lease for any unit
located on the Property the condition that each tenant acknowledge that tenant's
occupancy of the unit is subject to this Declaration and the City of Key West Work
Force Housing Ordinance.
C. If any action is brought to enforce the terms of this Declaration, the
prevailing party shall be entitled to reasonable attorneys' fees and costs.
D. If any one or more of the provisions contained in this Declaration shall
for any reason be held to be invalid, illegal or unenforceable in any respect, then
such provision or provisions shall be deemed severable from the remaining
provisions contained in this Declaration, and this Declaration shall be construed as
if such invalid, illegal, or unenforceable provision had never been contained herein.
E. The terms of this Declaration shall be interpreted under the laws of
the State of Florida and venue shall lie in Monroe County, Florida.
F. All notices to the Declarant, Land Authority, or Housing Authority
required herein shall be sent by certified mail, return receipt requested, to the
addresses stated above, or such other addresses that the parties may subsequently
provide in writing.
G. This Declaration may not be terminated, amended, or modified except
by written agreement executed by the parties.
Page 5 of 6
VIII. SUBORDINATION AND TRANSFER OF DEVELOPMENT RIGHTS
PROHIBITED
A. This Declaration shall be superior to all mortgages and shall not be
subordinated. This Declaration shall be recorded in the Public Records immediately
following the Warranty Deed conveying the Property to Declarant and before the
filing of any mortgages, liens, or interests in the Property.
B. The consideration provided to Declarant is contingent upon the
Property having the development rights to the 208 units referenced in Paragraph
III C. above as of the date this Declaration is signed. No existing or future
development rights, including but not limited to the 208 units referenced in
Paragraph III C. above, may be transferred from the Property.
IN WITNESS WHEREOF, the Declarant has executed this Declaration as
of the date written below.
Signed, sealed and delivered in the presence of
Witness #1 Signature
Witness #1 Printed Name
Witness #2 Signature
Witness #2 Printed Name
STATE OF FLORIDA
COUNTY OF
DECLARANT: AMERICAN
FEDERATED TITLE
CORPORATION AS TRUSTEE
UNDER LAND TRUST
#2016PC, a Florida land trust
By:
Jeffrey D. Cornfeld, its Vice
President
The foregoing instrument was acknowledged before me this _ day of , 2016 by
Jeffrey D. Cornfeld, Vice President of American Federated Title Corporation as Trustee Under Land
Trust #2016PC, a Florida land trust, who (—) is personally known to me or (_) has produced
as identification.
NOTARY SEAL: NOTARY PUBLIC
Page 6 of 6
EXHIBIT A
A paroal of isnd ratvated in the City cd Key VJe,4t, Munroe County, Florida and being
more particularly iescribed as follvwsz CC►I►MNCSNCT tit the interaec 4on of the
Northwesterly Right•of-Way Line of Nowton $twat and the Northea4tertly Right -of -Way
Line of White Stmt (k lurlda State Plane Cx)or mote Fagt Zone NM 83190, No t -a ng
82591,01, EwLii2g = 392639.41). therm N 341,08'80" W along the &aid Nortleuterly
Right-cf-Way sine of White Street far 916-39 feet; thertw N 66,51130" W for a distance
of O-V) feet w the back o4e (Nurt.heast aide) of a catterete sidewalk and the Point of
Beginrjog; thonce N 3400TOO" W., and along the Northeast edge of a concrete sidewalk
a distance of 289.66 feat; theAoe. S 5b'51'" W f)r a di -eta of 0,10 feet to the
Northesaaterly Right•ofWay Line of WMW Street; thence N 84'08'3w W akrng th4 said
Northeasterly Right -of Wvy Girl of White Strict for a di4taince of 81.83 feet; thence N
s,Pi''51'90" E for a distance of 010 feet. to Qw &a<id back of the aid@walk of Whig Street",
therice Iti 3490W00" W along the said Northaasterly edge of a gidew alk for a distmcs of
863,03 feet to an existing fence; thence l`i.56°MU' R., and sklvng the $aid fence, 'Wh"
lies on Retain Stunt a distan43e of 194.19 feet to a point lying 0.5 feet (0 inched
Northeast of a fencer oasn,er; thence S 79a06'43" E., and akng as line lying 0.6 feet (6
:aches) Northeasterly of n existing fence find wall n distance of 1206.74 feet; tbh nce N
10*44'48' E for a distanw of 8.75 feet to the Southearskorly Right-ef-Way Line of Palm
Avenuc theue S 79'15'12" E along the said S(jui heasi2rly Fig1t•oPWay Lida of ?Film.
Avenue for a distance of 55,00 feet; thence S lor,44'W W for a distance of 8,88 fact tr.;
the ext M-ion of a line lying 0.5 feet (6 ir_chi!g) Nort:heaeterly cf than exid'i g fence arrd
wall; thence S 7990643' E and alona a ]iris lying 0.5 feet (6 inc> W Northeaat+erl~v of the
existing fAf4np anti gall fcc a &R-U ce of 326.66 feet, to a point lying 0,5 feet (6') from the
sonar of the fence on Risonhower Drive; thence S 41)P2,1V0 * E along the fence an
Eisonhewer for n djstsnon of 20-90 feet; thence S 14°V44" X and being partially along a
fence line fox 167,37 faet to Angela Street; thence S 6iY24'44i" W-, azd alc= a line lying
0.5 feet (6 iraehap) Soutlreaaterly of the fence line of Anpla Sheet a distance of 1CM22
feet; theme N 1' 1%143M., end alor4 the odge of an cxieting fenct. a dista"e rf 72.01
feet; Theiacff S 69'44'44' W,, grtd along the edge of an existing fence a distanca of 20425
feot to the Northeast aide of a ovncrete tidswalk and the Point of Beginning,
IMU
DIVISION 10. - WORK FORCE HOUSINGU
Footnotes:
--- (22) ---
Editor's note —Section 1 of Ord. No. 05-27. adopted Oct. 18. 2005. amended the title of Div. 10,
Affordable Housing to read as herein set out.
Cross reference— Fair housing, § 38-26 et seq.
Sec. 122-1465. - Intent.
It is the intent of this division to create affordable housing categories to facilitate the development of
housing designed and priced to meet the needs of people employed by the local economy in a manner
that reflects the percentage of the workforce at each income level and mixes people of all incomes
together and does not create high and low-income enclaves.
(Ord. No. 05-27, § 2, 10-18-2005)
Sec. 122-1466. - Definitions.
The following words, terms and phrases, when used in this division, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Affordable housing shall be defined as provided in the following classifications:
Affordable housing (low income) for a rental dwelling unit shall mean a dwelling unit whose
monthly rent, not including utilities, does not exceed 30 percent of that amount which represents 80
percent of the monthly median household income (adjusted for family size). For an owner -occupied
dwelling unit, affordable housing (low income) shall mean a dwelling unit whose sales price shall not
exceed two and one-half times the annual median household income (adjusted for family size) for
Monroe County, in accordance with section 122-1472.
Affordable housing (median income) for a rental dwelling unit shall mean a dwelling unit whose
monthly rent, not including utilities, does not exceed 30 percent of that amount which represents 100
percent of the monthly median household income (adjusted for family size) for Monroe County. For
an owner -occupied dwelling unit, affordable housing (median income) shall mean a dwelling unit
whose sales price shall not exceed three and one-half times the annual median household income
(adjusted for family size) for Monroe County, in accordance with section 122-1472, The definition of
"affordable housing (median income)" applies to and encompasses all affordable housing under
construction or built pursuant to this ordinance prior to July 1, 2005, for which deed restrictions are
required.
Affordable housing (middle income) for a rental dwelling unit shall mean a dwelling unit whose
monthly rent, not including utilities, does not exceed 30 percent of that amount which represents 140
percent of the monthly median household income (adjusted for family size) for Monroe County. For
an owner -occupied dwelling unit, affordable housing (middle income) shall mean a dwelling unit
whose sales price shall not exceed six and one-half times the annual median household income
(adjusted for family size) for Monroe County, in accordance with section 122-1472.
Affordable housing (moderate income) for a rental dwelling unit shall mean a dwelling unit
whose monthly rent, not including utilities, does not exceed 30 percent of that amount which
Page 1
represents 120 percent of the monthly median household income (adjusted for family size) for
Monroe County. For an owner -occupied dwelling unit, affordable housing (moderate income) shall
mean a dwelling unit whose sales price shall not exceed five times the annual median household
income (adjusted for family size) for Monroe County, in accordance with section 122-1472.
Affordable work force housing shall include low income, median income, moderate income and
middle income housing.
Affordable work force housing trust fund shall mean the trust fund established and maintained by the
city for revenues from fees in lieu of constructing affordable work force housing, and revenues from any
other source earmarked for the trust fund by land development regulation, ordinance or donation.
Median household income shall mean the median household income published for Monroe County
on an annual basis by the U.S. Department of Housing and Urban Development.
(Ord. No. 98-18, § 1, 6-3-1998; Ord. No. 02-08, § 1, 2-20-2002; Ord. No. 05-27, § 3, 10-18-
2005)
Cross reference— Definitions generally, § 1-2.
Sec. 122-1467. - Requirements of affordable work force housing; ratio of new construction.
(a) New market -rate multifamily residential housing. At least ten percent of all new multifamily residential
units constructed each year shall be low income affordable housing of at least 400 square feet each,
as defined herein and 20 percent shall be affordable housing (median income) housing of at least
400 square feet each, as defined herein. Residential or mixed use projects of less than ten
residential or mixed use units shall be required to develop at least 30 percent of units of at least 400
square feet each as affordable (median income), but may contribute a fee in lieu for each unit to the
affordable work force housing trust fund, if approved by the city commission. The per unit fee shall
be $200,000.00 (representing construction cost, less land cost, of a 400 square foot unit). The 30
percent affordability requirement shall be determined on a project by project basis and not on a city-
wide basis. Vested units shall be subject to this subsection if not otherwise governed by law or
agreement. For every required affordable housing (median income) unit, a developer may increase
the sales or rental rates to affordable housing (middle income) so long as another unit's sales or
rental rate is decreased to affordable housing (low income).
(b) Linkage of projects. Two development projects may link to allow the affordable housing requirement
of one development project to be built at the site of another project, so long as the affordable
housing requirement of the latter development is fulfilled as well. Written proof of the project linkage
shall be supplied by the developer to the city commission at the time of the first site plan approval.
The project containing the affordable units must be built either before or simultaneously with the
project without, or with fewer than, the required affordable units. In addition, if a developer builds
more than the required number of affordable units at a development site, this development project
may be linked with a subsequent development project to allow compliance with the subsequent
development's affordable unit requirement. Written proof of the linkage must be supplied by the
developer to the city commission at the time of the subsequent development's site plan approval.
Linkage shall not be available if either development is entirely or in part to be constructed by public
funds. Finally, all linkages under this subsection may occur within the city or on a site within the city
and on a site on Stock Island in the unincorporated part of the county.
(c) New affordable work force housing. The maximum total rental and/or sales price for all new
affordable work force housing units in a single development shall be based on each unit being
affordable housing (moderate income). The rental and/or sales price may be mixed among
affordable housing (low income), (median income), (middle income) and (moderate income) in order
that the total value of rental and/or sales does not exceed ten percent of the rental and/or sales of all
the units at affordable housing (moderate income).
Page 2
(d) Demonstration of continuing affordability. Demonstration of continuing affordability shall be by deed
restriction or any other mutually acceptable method that effectively runs with the land and is binding
on owners, successors in ownership, or assigns. The deed restriction shall be in a form provided by
the city and shall be for a period of at least 50 years. It shall be recorded in the county records.
During the final year of the deed restriction, the city commission may act by Resolution to renew the
affordability restriction for an additional 50-year term.
(e) Reporting requirements. Owners of affordable work force housing projects or units shall furnish the
city manager or his designee with annual information necessary to ensure continued compliance with
affordability criteria, beginning one year after the date of building permit issuance and on each
anniversary date thereafter. Reporting requirements shall include sworn tenant household
verification information. Property owners subject to this subsection may contract with the Key West
Housing Authority to perform annual tenant eligibility verification.
(f) Compliance with antidiscrimination policy. All property owners offering housing under this division
shall comply with the antidiscrimination policy of article II of chapter 38.
(Ord. No. 98-18, § 1, 6-3-1998; Ord. No. 02-08, § 1, 2-20-2002; Ord. No. 05-27, § 4, 10-18-
2005)
Sec. 122-1468. - Affordable work force housing trust fund.
(a) The affordable work force housing trust fund (referred to as the "trust fund") is established. The trust
fund shall be maintained with funds earmarked for the trust fund for the purpose of promoting
affordable work force housing in the city and its immediate environs. Monies received by the trust
fund shall not be commingled with general operating funds of the city. The trust fund shall be in a
separate dedicated fund used only for the following:
(1) Financial aid to developers as project grants for affordable housing (low income) to (moderate
income) construction;
(2) Financial aid to eligible homebuyers of affordable housing (low income) to (moderate income)
as mortgage assistance;
(3) Financial incentive for the conversion of transient units to affordable housing (low income) to
(moderate income) residential units,
(4) Direct investment in or leverage to housing affordability through site acquisition, housing
development and housing conservation; or
(5) Other affordable work force housing purposes from time to time established by resolution of the
city commission.
(b) Except as provided in section 122-1471, the city commission shall determine all expenditures from
the trust fund upon the advice of the city manager.
(Ord. No. 98-18, § 1, 6-3-1998; Ord. No. 02-08, § 1, 2-20-2002; Ord. No. 05-27, § 5, 10-18-
2005)
Sec. 122-1469. - Applicant eligibility requirements.
The following eligibility requirements shall be required of households or persons to qualify for
affordable work force housing units to the extent lawful:
(1) The household or person shall derive at least 70 percent of its or his/her total income from
gainful employment in the county.
Page 3
(2) At the time of sale or lease of an affordable housing (low income) unit, the total income of
eligible household or persons shall not exceed 80 percent of the median household income for
the county (adjusted for family size).
(3) During occupancy of any an affordable housing (low income) rental unit, a household's income
may increase to an amount not to exceed 120 percent of the median household income for the
county (adjusted for family size). In such event, the tenant's occupancy shall terminate at the
end of the existing lease term.
(4) At the time of sale or lease of an affordable housing (median income) unit, the total income of
eligible households or persons shall not exceed 100 percent of the median household income
for the county (adjusted for family size).
(5) During occupancy of any affordable housing (median income) rental unit, a household's annual
income may increase to an amount not to exceed 140 percent of median household income for
the county (adjusted for family size). In such event, the tenant's occupancy shall terminate at
the end of the existing lease term.
(6) At the time of sale or lease of an affordable housing (moderate income) unit, the total income of
eligible households or persons shall not exceed 120 percent of the median household income
for the county (adjusted for family size).
(7) During occupancy of an affordable housing (moderate income) rental unit, a household's annual
income may increase to an amount not to exceed 160 percent of median household income for
the county (adjusted for family size). In such event, the tenant's occupancy shall terminate at
the end of the existing lease term.
(8) At the time of sale or lease of an affordable housing (middle income) unit, the total income of
eligible households or persons shall not exceed 140 percent of the median household income
for the county (adjusted for family size).
(9) During occupancy of an affordable housing (middle income) rental unit, a household's annual
income may increase to an amount not to exceed 180 percent of median household income for
the county (adjusted for family size). In such event, the tenant's occupancy shall terminate at
the end of the existing lease term.
(10) Eligibility is based on proof of legal residence in the county for at least one consecutive year.
(11) Priority shall be given to families of four or more members for larger sized affordable work force
housing units.
(12) The applicant shall execute a sworn affidavit stating the applicant's intention to occupy the
dwelling unit.
(13) The income of eligible households shall be determined by counting only the first and highest
paid 40 hours of employment per week of each unrelated adult. For a household containing
adults related by marriage or a domestic partnership registered with the city, only the highest 60
hours of the combined employment shall be counted. The income of dependents regardless of
age shall not be counted in calculating a household's income.
(14) In the event that a tenant's income shall exceed the maximum allowable income under this
section and such shall occur for the first time during the last three months of a tenancy, then the
landlord and tenant may extend a lease for a period of one year at the affordable rental rate.
(15) The planning board may review a household's income and unique circumstances to determine
eligibility and conformance with the intent of this ordinance to assure that people in need are not
excluded and people without need are not included.
(Ord. No. 98-18, § 1, 6-3-1998; Ord. No. 02-08, § 1, 2-20-2002; Ord. No. 05-27, § 6, 10-18-
2005; Ord. No. 08-04, § 29, 5-20-2008)
Page 4
Sec. 122-1470. - Accessory unit infill.
(a) In all mixed use zoning districts of the city, the city shall encourage the addition of affordable work
force housing on the same site as commercial properties and institutions to promote employee
housing. Such development shall be known as accessory unit infill. Tenants shall be eligible persons
under section 122-1469. Applicants under this section may provide two bicycle or scooter parking
spaces per unit as an alternative to applying to the planning board for parking variances. Provided
that units of 600 square feet or less are treated as an 0.78 equivalent unit and all units provided must
be made available through the city's building permit allocation system.
(b) The maximum total rental and/or sales price for accessory unit infill in a single development shall be
based on each unit being affordable housing (moderate income). The rental and/or sales price may
be mixed among affordable housing (low income), (median income), (middle income) and (moderate
income) in order that the total value in rental and/or sales does not exceed ten percent of the rental
and/or sales of all the units at affordable housing (moderate income).
(Ord. No. 98-18, § 1, 6-3-1998; Ord. No. 02-08, § 1, 2-20-2002; Ord. No. 05-27, § 9, 10-18-
2005; Ord. No. 08-04, § 30, 5-20-2008; Ord. No. 13-11, § 3, 11-6-2013)
Sec. 122-1471. - Community housing development organization.
The city commission may promote the establishment of a nonprofit community housing development
organization (CHDO), pursuant to federal regulations governing such organizations, to serve as
developer of affordable workforce housing units on city -owned property located in both the city and in the
community redevelopment areas, including excessed U.S. Navy property, or located in Key Haven and
Stock Island in the unincorporated part of the county, upon interlocal agreement. In such event, the city
may delegate to the community housing development organization all or partial administration of the
affordable housing trust fund.
(Ord. No. 98-18, § 1, 6-3-1998; Ord. No. 02-08, § 1, 2-20-2002; Ord. No. 05-27, § 10, 10-18-
2005)
Sec. 122-1472. - Family size.
When establishing a rental or sales amount, one shall assume family size as indicated in the table
below. This section shall not be used to establish the maximum number of individuals who actually live in
the unit.
Size of Unit
—
Assumed
Family Size
Minimum
Occupancy
Efficiency (no separate bedroom)
1
1
� One bedroom
2
1
-- --
Two bedroom
i
--
3
2
Three bedroom
4
3
Page 5
i 1 per
Four or more bedrooms 5 I
ibedroom
(Ord. No. 02-08, § 1, 2-20-2002; Ord. No. 05-27, § 11, 10-18-2005)
Sec. 122-1473. - Reserved.
Editor's note— Section 12 of Ord. No. 05-27, adopted Oct. 18, 2005, repealed § 144-1473,
which pertained to sunset provisions, and derived from Ord. No. 98-18, adopted June 3, 1998;
and Ord. No. 02-08, adopted Feb. 20, 2002.
Secs. 122-1474-122-1500. - Reserved.
Page 6
RESOLUTION NO. 10-159
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF KEY WEST, FLORIDA, NOMINATING THE
PROPERTY LOCATED AT 541 WHITE STREET, COMMONLY
REFERRED TO AS PEARY COURT, TO THE MONROE
COUNTY LAND AUTHORITY FOR FUNDING FOR THE
PURPOSE OF ACQUIRING AN INTEREST IN THE
PROPERTY IN THE FORM OF AFFORDABLE HOUSING
DEED RESTRICTIONS ON ALL EXISTING AND FUTURE
UNITS ON THE PROPERTY IN PERPETUITY FOR THE
PURPOSE OF PRESERVING AND PROVIDING AFFORDABLE
WORKFORCE HOUSING; PROVIDING FOR AN EFFECTIVE
DATE
WHEREAS, the City Commission has determined that there exists
a shortage of workforce housing available in the City of Key West;
and
WHEREAS, the City was unsuccessful in purchasing 157 dwelling
units at Peary Court for workforce housing based upon a 2016 voter
referendum; and
WHEREAS, the City has continued to evaluate methods to retain
affordable housing; and
WHEREAS, the Monroe County Land Authority holds approximately
12 , 5 million dollars of funds generated in the city of Key West
available for use to acquire affordable housing; and
WHEREAS, a private party has entered into a contract to
acquire the Peary Court property; and
WHEREAS, the potential purchaser has agreed to restrict the
157 units, and any other units constructed on the 24 plus acre
Page 1 of 4
property, for use for affordable workforce housing in perpetuity
in exchange for $12.5 million dollars of Monroe County Land
Authority funds; and
WHEREAS, the acquisition of deed restrictions for affordable
housing is a sufficient interest in land justifying the use of
Land Authority funds; and
WHEREAS, the City Commission believes deed restricting the
24 plus acre parcel in perpetuity serves an immense public purpose
which preserves current housing and provides an avenue for
additional affordable workforce housing in the future;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF KEY WEST, FLORIDA, AS FOLLOWS:
Section 1: That the property located at 541 White Street,
commonly referred to as Peary Court, and containing approximately
24.1835 acres, is hereby nominated to the Monroe County Land
Authority for funding in the amount of $12,500,000.00 for the
purpose of providing affordable workforce housing by acquiring
restrictions so all existing and any future units constructed will
be restricted tc affordable workforce housing in perpetuity.
Page 2 of 4
Section 2: That the Commission recognizes there is slightly
less than the $12.5 million requested, and desires that the amount
of existing funds available be allocated and the remainder be
provided in the next fiscal year.
Section 3: That the Commission requests the Key West Housing
Authority partner with the Monroe County Land Authority with
respect to any restrictive covenants in order to review compliance
with permissible rental rates as specified ir, the City's affordable
workforce housing restrictions as may be amended from time to time.
Section 4: That this request is specific to the Peary Court
property and the pending contract between seller Peary Court
Holdings, L.P., a Delaware limited partnership and buyer American
Federated Title Corp., a Florida corporation, as Trustee under
Land Trust Agreement ##2016PC dated April 20, 2016.
Section 5: That this Resolution shall go into effect
immediately upon its passage and adoption and authentication by
the signature of the presiding officer and the Clerk of the
Commission.
Passed and adopted by the City Commission at a meeting held
this 3 day of _ May 2016.
Authenticated by the Presiding Officer and Clerk of the
Commission on 10 day of `IaY f 2016.
Page 3 of 4
Filed with the Clerk on May 10 , 2016.
Mayor Craig Cates Yes
Vice Mayor Clayton Lopez Yes
Commissioner Sam Kaufman No
Commissioner Richard Payne Yes
Commissioner Margaret Romero Nn
Commissioner Billy Wardlow No
Commissioner Jimmy Weekley Yes
/64,� Z�t4z,
CRA G CA S, MAYOR
CHERYL SMITI4.1 CITY CLERK
Page 4 of 4
THE CORNFELD GROUP
May 7, 2016
RE: Peary Court, Key West,
A Proposed Key West Work Force Multifamily Community
Mr. Mark Rosch, Sr. Property Acquisition Specialist
Monroe County Land Authority
1200 Truman Avenue
Suite 207
Key West, FL 33040
Dear Mr. Rosch:
F+obert M. Comfeld. D.M.C)
Jeffrev D. Cornfeld
Stever D. Hu"owitz
Agnes Arose
Edda Arenoib ie
Lourdes Cepote
Manna Cerabauo
Robert 1. Cozzi
Steven Homer
Leslie J. Loring
Marc Metz
Paul Swenson
Doug Thompean
VIA Email:
rosch-I nark�monroccounty-fl.Qov
I would like to introduce myself to you and the remainder of the Monroe County land Authority
Advisory Committee. I have attached a brief Professional Biography which summarizes my
background and experience. The purpose of this letter is to further explain our proposal
concerning the acquisition of Peary Court in Key West.
The shortage of Work Force Housing in Key West has reached extreme levels, and businesses
at every level suffer with the consequences of rapid employee turnover due to lack of housing.
Peary Court currently provides housing for 157 families. 48 units out of the 157 are currently
deed restricted as Work Force Housing. The remaining 109 units are free market units with no
limitations on residency, income or rental rates. The rental rates on these 109 units have
increased by over 50% over the past 2 years and are continuing to rise rapidly. Peary Court has
an approved Development Plan for construction of another 51 high -end unrestricted free market
units (the 51 unit total includes the recently approved 48 unit development plus the rights to
rebuild 3 units which burned down), bringing the total number of potential units to 208 units.
Peary Court sits on over 24 acres of prime Old Town Key West real estate. Even at 208 units,
the housing density of Peary Court is only 8 6 Housing Units/Acre The surrounding
neighborhood is currently calculated at 16 Housing Units/Acre The City has expressed an
interest in raising the density of Peary Court to 16 units/acre to match the surrounding
neighborhood, if all new development was restricted to Work Force Housing. This would allow
for the possible expansion to 384 housing units at Peary Court. We feel that the Peary Court
community can be increased to 384 units without negatively effecting the look and feel of this
unique community.
Peary Court Is currently on the market for $60,000,000 f he seller's marketing plan for the
property includes plans for upgrading all units (other than the 48 deed restricted WFH units) into
high end apartments or vacation homes. This sales price exceeds the recent referendum price
because it includes all vacant land and the entitlement rights to future development The City's
option to purchase Peary Court under the referendum did not include the majority of the vacant
land or the additional entitlement rights to the 48 unit development. We have been able to
negotiate a purchase contract with the Sellers that includes only a short period of due -diligence
which ends on May 24", 2016.
Jk:itbU HULLYWO00 BOULEVARD • SUITE 400 • HOLLYWOOD, FLORIDA 33021
(954] 989-2200 • FAX (954) 962-6260
WWW.CORNFELOGROUP COM
Our plan and proposal is as follows:
1. We will purchase the entirety of Peary Court from the existing owners. All land,
buildings, rights, development rights, real property, personal property and intellectual
property owned by the current owners is included in the current Purchase and Sale
Contract.
2. In return for the Land Authority's support of $1,r:,500,000, we will deed restrict the entire
property to the t►enefit of the Land Authority in a manner which will restrict all current and
future development on the property to Work Force Housing.
3. The Work Force Housing guidelines in the deed restriction shall be based on the current
City of Key West guidelines, and as such, shall include Low Income (80% AMI), Median
Income (100% .AMI), Moderate Income (120% AMI) and Middle Income (140% AMI).
Work Force Housing applicants must abide by guidelines concerning: (i) Residency in
Monroe County; (ii) income qualifications; and (iii) rental limits.
4. We recommend that the deed restriction be enforced by the Key 'Nest Housing
Authority.
5. The deed restriction shall be in perpetuity and shall survive any potential mortgage
foreclosure of the property.
6. Our intention is to present a modified development plan to the City which will include
more units than the preapproved 48 unit development. This will require a modification of
the allowable density currently on the property. We understand -:hat this new
development plan will require all applicable City approvals and permits.
7. Our intention is also to quickly attempt to subdivide some of the large 1300SF 2
bedroom/1.5 bath apartments into twice the number of less expensive 1 bedroom/1 bath
units. This will offer some immediate housing relief by creating additional less expensive
1 bedroom units. One bedroom units in Key West are currently in the shortest supply
and the highest demand. The Key West Housing Authority currently sho'Ns over 1,100
people waitlisted for one bedroom units
8. To reiterate, all existing and future development will be subjected to the same deed
restricted Work Force Housing guidelines.
9. We understand the budget constraints of the Land Authority and we will agree to accept
$12.2M at the purchase closing (approximately June 24"', 2016) simultaneous with the
recording of the deed restriction, and the remainder paid during the next fiscal year.
I would also like to mention that my family owns a home here in Key West and we live here part
time. I am involved in the community with other commercial real estate projects including the
recent redevelopment of 725 Caroline Street. Our Caroline Street project transformed the old
West Marine warehouse building at the entrance to the historic waterfront into a beautiful new
retail and restaurant center while still keeping the original character of the old building. The
project has received praise from both HARC and City Planners.
I would like to thank. the Monroe County Land Authority and the Board of County
Commissioners for their time, cooperation and consideration of this project. The urgency and
short duration of time given to us to complete this project was not set by us. The Sellers feel
that they have been delayed In their plans to sell or redevelop the property themselves for too
long. They have other offers on the table and have given us only a 30 day window to commit to
this contract. Our plans for the property would only be feasible with the support of the Land
Authority funds. Although we agree the property is worth $60M as it sits un-restricted today, our
company is not interested in taking the property to its' highest and best use as upscale housing.
Our company philosophy is to provide real estate leasing options to "Middle America" and "Work
Force" type tenants. We feel that we can creatively and effectively make Peary Court work as a
Work Force Housing multifamily community, hcwever, the deed restriction which we have
proposed will affect the income potential and the value of the property, and therefore, the
support of the Land Authority is required.
I appreciate your consideration of this project. Please feel free to contact me if ycu would like to
discuss any of these details further.
PROFESSIONAL BIOGRAPHY
Jeffrey D. Comfeld
3850 Hollywood Boulevard, Suite 400
Hollywood, Florida 33021
jeff@ComfeldGroup.com
Office: 954-989-2200
EDUCATION: Tufts University, Bachelor of Science in Engineering 1982
Tufts University, Master of :science in Engineering Design 1985
ENGINEERING
EMPLOYMENT: Employed as a Software Engineer from 1982 - 1988.
REAL ESTATE: Jeffrey Cornfeld began full-time involvement in real estate management
and investments in 1988. The Comfeld Group was formed in 1989 to act
as managers and asset managers of a growing portfolio of commercial
income producing properties owned by the Comfeld Family. Today,
Jeffrey Comfeld's involvement includes acquisitions, management,
operations, financing and capital project administration. The Comfeld
Group portfolio consists of over 50 major commercial properties. They
are a family owned real estate investment and management company
that invests primarily in multi-user commercial real estate properties. The
company is a long term "buy -and -hold" investor of multi -tenant
commercial properties which are concentrated in South Florida and
extends throughout the Southeastern United States.
The Comfeld Group's portfolio includes:
• Hotels and Resorts
• Community Shopping Centers
• Neighborhood Retail Centers
• Office Buildings
• Warehouses
• Industrial
• Self -Storage Facilities
• Multi -Family Housing
• Vacant land in emerging market areas
PERSONAL: The Comfeld family lives in Hollywood and Key West, Florida.
WEB SITE: More information about the Comfeld Group and their commercial
property portfolio can be found online at wwwv.ComfeldGroui).com
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REAL ESTATE. INVESTMENTS & FINANCE
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IV
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the25th day of
April 2016, by and between PEARY COURT HOLDINGS, L.P., a Delaware limited partnership
("Se be— ), and AMERICAN FEDERATED TITLE CORP., as Trustee under land Trust
Agreement #2016PC dated April 20, 2016, and/or assigns ("Purchaser"). In consideration of the
mutual covenants and promises set forth in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the parties to this
Agreement, the parties agree to the following terms and conditions.
1. PURCHASE AND SALE. Subject to the terms of this Agreement, Seller agrees
to sell to Purchaser and Purchaser agrees to purchase from Seller the following property
(collectively, the "Property"):
1.1 That certain parcel of property located in Monroe County, Florida
commonly known as "Peary Court" as more particularly described in Exhibit "L l" (the
"Realty");
1.2 The land and all buildings, structures and other improvements situated on
the Realty (the "Improvements");
1.3 All fixtures, equipment, furnishings and other items of property
whatsoever used or useful in the operation, repair and maintenance of the Realty, situated on the
Realty, and owned by Seller (the "Personalty");
1.4 All of Seller's interest in and to tenant leases for space in the Improve-
ments or on the Realty;
LS All of Seller's interest in and to any deposits, licenses, permits, and
contract rights pertaining to ownership and/or operation of the Realty, Improvements or
Personalty;
1.6 All of Seller's rights in and to the name and all logos, trademarks and
other rights in connection with the name, and general intangible rights pertaining to the owner-
ship and/or operation of the Realty; and
1.7 All of the Seller's interest, if any, in and to any strips, gores, easements,
Privileges, rights -of -way, riparian and other water rights, rights to lands underlying any adjacent
streets or roads, other tenements, hereditaments and appurtenances, if any, and development
rights pertaining to or accruing to the benefit of the Realty and Improvements, including without
limitation, Seller's interest in any applicable entitlements for an additional 48 affordably
restricted residential units and entitlements to one market rate tri-plex as more particularly
described in the Site Plan attached hereto as Exhibit "1.7".
2. EFFECTIVF, DATE. Execution and delivery of this Agreement shall be defined
as the receipt of the fully executed Agreement by the parties by delivery by a nationally
recognized overnight delivery service, hand delivery or electronic transmission in portable
=I
t
document format. The date of this Agreement, for purposes of performance, shall be the date
when the last one of Seller or Purchaser has signed this Agreement, as stated on the signature
page and a copy of the Agreement delivered to the other party as described above; provided,
however, that if either party fails to date the Agreement, then such party shall be deemed to have
signed the Agreement on the date such party transmits the Agreement to the other party (the
"Effective Date").
3. CLOSING DATE. Subject to other provisions of this Agreement for extension or
termination, closing on the transaction described in this Agreement (the "Closing") shall be held
by mail in escrow through the Escrow Agent on the date that is thirty (30) days following the
expiration of the Investigation Period (the "Closing Date"). Purchaser shall have the option of
extending the Closing Date for thirty (30) days by written notice to Seller not less than three (3)
business days before the originally scheduled Closing Date and provided Purchaser deposits an
additional Deposit with the Escrow Agent on the date of the delivery of such notice in the
amount of Five Hundred Thousand Dollars ($500,000.00) (the "Extension Deposit").
DEPOSIT
4.1 To secure the performance by Purchaser of Purchaser's obligations under
this Agreement, within three (3) business days after the Effective Date, Purchaser shall deliver to
Chicago Title Insurance Company, as escrow agent ("Escrow Agent"), the sum of Two Hundred
Fifty Thousand Dollars ($250,000.00) by wire transfer to a depository designated by Escrow
Agent, the proceeds of which shall be held in trust as an earnest money deposit (the "Initial
De osit') by Escrow Agent, and disbursed only in accordance with the terms of this Agreement.
If Purchaser elects not to cancel this Agreement during the Investigation Period, as more
particularly described in Section 11.2 of this Agreement, then within two (2) business days
following the expiration of said Investigation Period, Purchaser shall deliver to Escrow Agent a
wire transfer in the sum of Two Million Seven Hundred Fifty Thousand and No/100 Dollars
($2,750,000.00) (the "Additional Deposit') to be held together with, and on the same terms and
conditions as, the Initial Deposit. Once the Additional Deposit and, if applicable, the Extension
Deposit is paid to Escrow Agent, the term "Deposit" shall mean the Initial Deposit plus the
Additional Deposit and; if applicable, the Extension Deposit; prior to such payments, whenever
used in this Agreement, the term "Deposit" shall mean only the Initial Deposit. For avoidance of
doubt, if Purchaser fails to make the Initial Deposit as and when required pursuant to this
Agreement, this Agreement shall automatically terminate and be of no further force and effect.
4.2 Escrow Agent shall use its reasonable efforts to invest the Deposit in an
interest bearing account or certificate of deposit maintained with or issued by a federally insured
commercial bank. All interest accrued or earned on the Deposit shall be paid or credited to
Purchaser except in the event of a default by Purchaser, without any default of Seller, in which
event the interest shall be disbursed to Seller, together with the Deposit, as liquidated damages in
accordance with Section 16.
I
5. PURCHASE PRICE.
5.1 The total purchase price (the "Purchase Price") to be paid by Purchaser to
Seller for the Property is Sixty Million Dollars ($60,000,000.00).
5.2 The Purchase Price shall be paid to Seller as follows:
$1,750,000.00, the Deposit described in Section 4 of this Agreement, as it may be
increased by the Extension Deposit, which shall be paid to Seller at
Closing;
$58,250,000.00, approximately, in cash at Closing, subject to prorations and
adjustments as provided in this Agreement, to be paid by wire
transfer;
$60,000,000.00. Total Purchase Price.
6. INTENTIONALLY DELETED.
7. TITLE EVIDENCE. Within twenty (2U) days following the Effective Date,
Purchaser shall, at Purchaser's expense, obtain an ALTA marketability title insurance
commitment (the "Commitment"), with fee owner's title policy premium to be paid as provided
in Section 19 hereof at Closing, issued by Chicago Title Insurance Company, or other national
title insurer reasonably acceptable to Purchaser ("Title Insurer"), with hard copies of all
exceptions. The Commitment shall show Seller to be vested with insurable fee simple title to the
Realty (insurable in an amount equal to the Purchase Price, at standard rates), free and clear of
all liens, encumbrances, leases, tenancies, covenants, conditions, restrictions, rights -of -way,
easements and other matters affecting title, except the following which, if not objected to by
Purchaser pursuant to the terms of Article 9, below, shall be deemed the "Permitted Exceptions":
7.1 Ad valorem real estate taxes for 2016 and subsequent years;
7.2 All applicable zoning ordinances and regulations;
7.3 Any matters disclosed on Schedule B-2 of the Commitment, including
without limitation, those matters described in Exhibit "7.3" attached
hereto and made a part hereof; and
7.4 Tenants in possession under the Leases (defined below).
8. SURVEY.
8.1 Within twenty (20) days following the Effective Date, Purchaser may
order, at Purchaser's expense, an ALTA survey (the "Survey") of the Realty and Improvements.
8.2 If the Survey shall reflect any encroachments, overlaps, unrecorded ease-
ments or similar rights in third parties, or any other adverse matters not specifically provided for
in this Agreement, then Purchaser may provide an Objection therefor as set forth in Section 9.
9. TITLE DEFECTS.
9.1 Purchaser shall have until the earlier of (i) ten (10) days from receipt of
the Commitment and the Survey, respectively, or GO five (5) days prior to the expiration of the
Investigation Period (defined below) (as applicable, the "Title Review Period") within which to
examine each of them. If Purchaser finds title to be objectionable, Purchaser shall, no later than
the end of the Title Review Period, notify Seller in writing specifying the title objection(s) (the
"Objections"). 1f Purchaser fails to give Seller written notice of any Objection(s) before the
expiration of the Title Review Period, then any and all matters shown in the Commitment and/or
Survey shall be deemed waived as title objections to closing this transaction and shall be deemed
Permitted Exceptions.
9.2 If Purchaser has given Seller timely written notice of Objection(s) or if
any new matters appear from the date of the Commitment through the Closing Date, then within
three (3) days after Seller's receipt of Purchaser's notice of Objections, Seller shall advise
Purchaser in writing that: (i) Seller shall cause the Objections to be removed or remedied at
Seller's sole expense; or (ii) Seller shall not cause the Objections to be removed or remedied
(except for Monetary Exceptions which Seller is required to remove or remedy as provided
below). Notwithstanding the foregoing, all mortgages, mechanic's liens, or other liens created
by instruments executed by Seller ("Monetary Exceptions") shall not constitute Permitted
Exceptions and Seller shall cause such Monetary Exceptions to be paid from the closing
proceeds, removed of record or bonded off on or prior to the Closing.
9.3 If Seller does not notify Purchaser in writing of Seller's election within the
above referenced three (3) day period, Seller shall be deemed to have elected not to cause any
Objections to be removed or remedied (i.e., option (ii) in Section 9.2 above). If Seller elects (or
is deemed to have elected) not to cause all or any of the Objections to be removed or remedied
(i.e., option (ii) in Section 9.2 above), Purchaser shall have until the expiration of the
Investigation Period to elect in writing, as Purchaser's sole remedy, to:
9.3.1 Close and accept the title "as is," without reduction in the Purchase
Price and without claim against Seller for such Objections; or
9.3.2 Cancel this Agreement, in which event Escrow Agent shall return
the Deposit together with all interest earned on it to Purchaser; upon such return of the Deposit,
both parties shall be released from all further obligations under this Agreement, unless such
objections were caused by Seller's willful act or willful omission, in which event Seller shall
remain liable to Purchaser for damages caused by the defects.
Seller shall reasonably cooperate with Purchaser to obtain such estoppel letters or
"comfort" letters as Purchaser may request relating to any Permitted Exceptions.
10. EXISTiNG LEASES. Seller represents and warrants to Purchaser that attached to
this Agreement as Exhibit "10" is a rent roll of all leases, tenancies, and other occupancies,
whether written or oral, affecting all or any portion of the Property (the "Leases"), setting forth
the names of the tenants (the "Tenan "), the spaces affected, the rents, the terms (including any
options to renew), identification of all units encumbered as affordable workforce units, the
security deposits as required by the Leases, if any, delinquencies, and any special concessions,
prepaid rent, options to purchase or rights of first refusal. Within five (5) business days after the
Effective Date, Seller shall deliver to Purchaser true, correct and complete copies of all the
Leases (including any amendments or modifications thereof). Seller further represents and
warrants to Purchaser that:
10.1 No other parties have any rights of occupancy or possession of all or any
portion of the Property except as set forth in the rent roll which is a part of Exhibit "I r,
10.2 Except as reflected in Exhibit "10' , to the' Seller's knowledge, all of the
Leases are, as of the date of this Agreement, in good standing, without default on the part of
Seller, and shall remain without default on the part of Seller through the date of Closing; Seller
has not received any written notice of any default under any Leases;
10.3 Seller has not received any prepaid rent under any of the Leases except as
shown in Exhibit "10'; and
10.4 Seller shall not accept payment of any rent under any Lease for more than
one (1) month in advance, and Seller shall not modify any existing Lease or enter into any new
lease or agreement affecting all or any portion of the Property except in accordance with Seller's
usual business practices and on Seller's standard lease form and provided that no new lease or
modification shall extend the applicable lease term for more than twelve (12) months without the
prior written consent of Purchaser, in Purchaser's sole discretion.
11. INVESTIGATION PERIOD.
11.1 During the Investigation Period, as defined below, subject to the limitation
contained in this Agreement, Purchaser shall have the right to conduct, at Purchaser's expense,
whatever reasonable investigations, analyses and studies of the Property that Purchaser may
deem appropriate to satisfy Purchaser, including, without limitation, with regard to:
11.1.1 the physical condition of the building(s) and other improvements
included in the Property, including their structure, roofs, air conditioning, heating, electrical,
plumbing and other mechanical systems;
11.1.2 the physical condition of all fixtures, equipment, furnishings and
other items of property referred to in Subsection 1.3 above;
11.1.3 .the permitted uses of and improvements to the Property under
applicable building and zoning ordinances and the present compliance or non-compliance with
the same;
11.1.4 evidence of any hazardous waste or similar materials, and of
Radon, in, on, under or about the Property;
11.1.5 all existing contracts, agreements, Leases and tenancies affecting
the Property, if any; and
11.1.6 Seller's operating statements for the Property for the period of
Seller's ownership, which statements and related books and records Seller shall make available
to Purchaser at all reasonable times at the Property.
11.2 Upon execution of this Agreement, Seller shall provide copies of and shall
make available to Purchaser, for review by Purchaser, at all times during business hours during
the Investigation Period, and after the Investigation Period until the Closing Date, those
documents and electronic and computer data described in Exhibit "11.2" attached hereto relating
to the Property, and in Seller's possession or control (the "Due Diligence Documents"). If
Purchaser is satisfied with its investigation, then Purchaser may elect to deliver a written notice
to Seller stating that Purchaser has elected to proceed with this transaction (a `Notice to
Proceed') on or before 5:00 p.m., Eastern time, on the date which is thirty (30) days after the
Effective Date (the "Investigation Period"); provided, however, in the event that Purchaser elects
not to deliver a Notice to Proceed for any or no reason in Purchaser's sole discretion and does
not timely deliver a Notice to Proceed to Seller, Escrow Agent shall return the Deposit together
with all interest earned on it to Purchaser and both parties shall be released from all further
obligations under this Agreement except for those matters that expressly survive the termination
of this Agreement. Except as otherwise provided in this Agreement, no inquiry, examination. or
analysis rnade by Purchaser (or the results of them) shall reduce, limit or otherwise affect the
representations and warranties made by Seller in this Agreement.
11.3 If Purchaser cancels this Agreement, Purchaser shall deliver to Seller all of
the Due Diligence Documents.
11.4 Upon Purchaser's waiver of or failure to duly exercise its right to termi-
nate described in this Section 11, Purchaser shall have accepted the Property "as is" as of that
date, with no representations or warranties regarding the Property other than any which may be
specifically stated in this Agreement. The Purchaser shall make such investigations and
inspections of the Property and the Due Diligence Documents to satisfy itself as to all matters
relating to its purchase of the Property and shall purchase the Property "AS IS" "WHERE IS", at
the date hereof, subject to normal wear and tear until Closing and subject to casualty damage and
condemnation as herein provided. 'Mis Agreement and the exhibits and schedules attached
hereto contain all the terms of the agreement entered into between the parties, and Purchaser
acknowledges that neither Seller nor any representatives of Seller has made any representations
or held out any inducements to Purchaser, other than those expressly set forth in this Agreement.
Without limiting the generality of the foregoing, Purchaser has not relied on any representations
or warranties except for those expressly set forth in this Agreement (and neither Seller nor its
representatives made any representations or warranties), in either case express or implied, as to
any matters, including, without limitation, as to (i) the current or future real estate tax liability,
assessment or valuation of the Property; (ii) the potential qualification of the Property for any
and all benefits conferred by federal, state or municipal laws, whether for subsidies, special real
estate tax treatment, insurance, mortgages, or any other benefits, whether similar or dissimilar to
those enumerated; (iii) the compliance of the Property, in its current or any future state, with
applicable zoning ordinances and the ability to obtain a change in the zoning or a variance in
respect to the Property's non-compliance, if any, with said zoning ordinances; (iv) the
availability of any financing for the purchase, alteration, rehabilitation or operation of the
Property from any source, including but not limited to, state, city, or federal government or any
institutional lender; (v) the current or future use of the Property; (vi) the physical condition of the
Property including, without limitation, any environmental conditions (including the presence of
asbestos or other hazardous materials) which may exist; or (vii) the accuracy of any due
diligence materials. Without limiting the provisions of this Section 11.4, Purchaser on behalf of
itself and its successors and assigns waives and releases Seller and Seller's affiliates and agents
and their respective successors and assigns from any and all demands, claims, legal or
administrative proceedings, losses, liabilities, damages, penalties, fines, liens, judgments, costs
or expenses whatsoever (including, without limitation, attorneys' fees and costs), whether direct
or indirect, known or unknown, foreseen or unforeseen, arising from or relating to the physical
condition of the Property or any law or regulation applicable thereto, including the presence or
alleged presence of asbestos or hanrtful or toxic substances in, on, under or about the Property,
including, without limitation, any claims under or on account of (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as the same may have been
or may be amended from time to time, and similar state statutes, and any rules and regulations
promulgated thereunder, (ii) any other federal, state or local law, ordinance, rules or regulation,
now or hereafter in effect, that deals with or otherwise in any manner relates to, environmental or
health and safety matters of any kind, or (iii) this Agreement or the common law (collectively
"Environmental Conditions'). In furtherance of the releases set forth in this Section 11.4 of this
Agreement, Purchaser hereby expressly waives to the maximum extent legally permissible any
and all rights or benefits conferred by any law that is inconsistent with the waiver and release
contained in this Section and expressly consents that each such waiver and release shall be given
full force and effect according to each and all of its express terms and conditions, including those
relating to unknown and unsuspected Claims, if any, as well as those relating to any other Claims
set forth herein. As used in this Agreement, "Claims" mean any claim, demand, lien, agreement,
contract, covenant, action, suit, cause of action (whether based on statutory or common law
theories), obligation, loss, cost, expense (including, without limitation, reasonable attorneys' fees
(whether or not litigation is commenced)), penalty, damages, order or other liability, of any kind
whatsoever relating to the releases solely set forth in this Section 11.4, wbether at law or in
equity, fixed or contingent, known or unknown, and whether accruing now or in the future. The
documents delivered by Seller at the Closing, shall be subject to the provisions and limitations
contained in this Agreement and/or in such documents. The provisions of this Section 11.4 shall
survive the Closing and conveyance of title to the Property.
11.5 Notwithstanding any provisions in this Agreement to the contrary, Pur-
chaser does and shall indemnify and hold harmless Seller, its agents, employees, successors and
assigns against all losses, claims, damages, liability, attorneys' and accountants' fees and costs of
litigation and all other expenses related to, growing out of, or arising from the investigation of or
entry upon the Property, or other acts undertaken by Purchaser, its agents, employees or assigns,
under this Agreement, The foregoing indemnity shall not include any claims, demands, causes
of action, Iosses, damages, Iiabilities, costs or expenses (including, without limitation, attorneys'
fees and disbursements) that result solely from the mere discovery by Purchaser or Purchaser's
representatives of existing conditions on the Property during investigations conducted pursuant
to, and in accordance with, the terms of this Agreement. Purchaser shall return the Property to
the condition in which it existed prior to any investigations undertaken by Purchaser, its agents,
employees and assigns pursuant to this Agreement. The provisions of this paragraph shall
survive the termination of this Agreement. In the course of its investigations Purchaser may
make inquiries to third parties, including, without limitation, lenders, contractors, adjacent
landowners, tenants, and municipal, local and other government officials and representatives,
and Seller consents to such inquiries.
11.6 In connection with Purchaser's investigation and/or inspection of the
Property, Purchaser (i) shall fully comply with all laws, ordinances, rules and regulations in
connection with such inspections; (ii) shall permit a representative of Seller to accompany
Purchaser on any inspections and Purchaser shall not unreasonably disrupt the use, occupancy
and operation of the Property; (iii) shall not permit any inspections, investigations or other due
diligence activities to result in any liens, judgments or other encumbrances being filed against
the Property and shall, at its sole cost and expense, promptly discharge of record any such liens
or encumbrances that are so filed or recorded; (iv) shall not permit any invasive testing, borings,
drillings or samplings to be done on or at the Property without the prior written consent of Seller,
which shall be in Seller's reasonable discretion; and (v) shall maintain, with insurance companies
reasonably satisfactory to Seller, a policy of commercial general public liability insurance, with a
broad form contractual liability endorsement covering Purchaser's indemnification obligations
hereunder, and with a combined single limit of not less than $1,000,000 per occurrence for
bodily injury and property damage, insuring Seller and its affiliates as additional insureds
(certificates of which shall be given to Seller prior to the first entry by Purchaser on the
Property), all of which insurance shall be written on an "occurrence form". The provisions of
this paragraph shall survive the termination of this Agreement. In the course of its investigations
Purchaser may make inquiries to third parties, including, without limitation, lenders, contractors,
adjacent landowners, tenants, and municipal, local and other government officials and
representatives, and Seller consents to such inquiries.
12. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Seller
represents and warrants to Purchaser and covenants and agrees with Purchaser as follows:
12.1 Seller has not entered into any and there are no contracts, subcontracts,
arrangements, licenses, concessions, easements, or other agreements, either recorded or
unrecorded, written or oral, affecting all or any portion of the Property, or the use of it, other than
the Leases set forth in Exhibit *'10" (as updated by Seller from time to time as additional Leases
are executed or terminated, as permitted by this Agreement, and/or as Tenants vacate their
respective premises) and those agreements set forth in Exhibit "12.1" (as updated by Seller from
time to time consistent with the terms of this Agreement); unless otherwise noted on Exhibit
"12.1", each instrument in Exhibit "12.1" may be cancelled by Purchaser upon not more than
thirty (30) days' notice and without payment of premium or penalty for such cancellation and
Seller shall not modify any existing instrument nor enter into any new contract or other
agreement affecting all or any portion of the Property, or the use of it, without the prior written
consent of Purchaser, which consent will not be unreasonably withheld, delayed or conditioned;
12.2 Seller has (i) received no written notice of existing or pending
improvement liens affecting the Property; (ii) received no written notice of uncured violations
of building codes and/or zoning ordinances or other governmental or regulatory laws,
ordinances, regulations, orders or requirements affecting the Property; (iii) has not been served
with any lawsuits now pending and there are no appeals of prior lawsuits affecting the Property
and has no knowledge of threatened lawsuits affecting the Property; (iii) received no written
notice of existing or pending condemnation proceedings affecting the Property and has no
knowledge of any threatened proceedings; and (iv) received no written notice of existing or
pending zoning, building or other moratoria, downzoning petitions, proceedings, restrictive
allocations or similar matters that could affect Purchaser's use of the Property and has no
knowledge of any such matters now being threatened;
12.3 Seller shall maintain the Property in substantially the same manner as it
has been maintained prior to the Effective Date until the Closing Date;
12.4 To Seller's knowledge, Seller has not done nor allowed anything which
could cause toxic or hazardous materials or waste to be present in, on or about the Property in
violation of applicable law, and except as provided in any environmental reports delivered to
Purchaser prior to or during the Investigation Period, has no knowledge of any such materials or
waste being or ever having been in, on, or about the Property or adjacent properties;
12.5 Seller shall provide, and keep in force through the Closing, any policies of
fire, flood, windstorm, hazard and other casualty insurance which Seller may currently maintain
with respect to the improvements portion of the Realty and all items of other property referred to
in Section 1 above; Seller shall deliver copies of said policies to Purchaser within the time period
for delivery of the Commitment;
12.6 Except to the extent provided in any Permitted Exceptions, there are no
agreements currently in effect which restrict the sale of the Property;
12.7 Seller has the right, power and authority to execute and deliver this Agree-
ment and to consummate the transactions contemplated by it; neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated by it nor the fulf l-
ment of nor the compliance with the terms, conditions and provisions of this Agreement will
conflict with or result in a violation or breach of any relevant law, or any other instrument or
agreement of any nature to which Seller is a party or by which it is bound or may be affected, or
constitute (with or without the giving of notice or the passage of time) a default under such an
instrument or agreement; no consent, approval, authorization or order of any person is required
with respect to the consummation of the transactions contemplated by this Agreement;
12.8 Seller is in compliance with the requirements of Executive Order No.
13224, 66 Fed. Reg. 49079 (September 23, 2001) (the "Order") and other similar requirements
contained in the rules and regulations of the Office of Foreign Assets Control, Department of the
Treasury ("OFAC") and in any enabling legislation or other Executive Orders or regulations in
respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively
called the "Orders'). Neither Seller nor any beneficial owner of Seller is: (i) listed on the
Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the
Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any
of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are
collectively referred to as the " fists'); (ii) a person who has been determined by competent
authority to be subject to the prohibitions contained in the Orders; or (iii) owned or controlled
by, or acts for or on behalf of, any person on the Lists or any other person who has been
determined by competent authority to be subject to the prohibitions contained in the Orders; and
12.9 Except for those brokers referenced in Section 21 hereof, which shall be
paid at Closing, Seller is not obligated to pay any real estate brokerage commissions or similar
9
fees for which a lien has been or which may be filed pursuant to Chapter 475, Part III of the
Florida Statutes.
12.10 At all times during the term of this Agreement and as of Closing, all of
Seller's representations, warranties and covenants in this Agreement shall be true and correct; 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 in order to make the statements or infor-
mation contained in them or in this Agreement not misleading; and Seller shall notify Purchaser,
promptly after acquiring knowledge thereof, of any event or circumstances that would make any
representation or warranty of Seller to Purchaser under this Agreement to be materially untrue.
12.11 If any of the foregoing representations and/or warranties is not correct on
the Closing Date then Purchaser shall have the option to (i) waive such representation and/or
warranty and proceed to Closing without adjustment to the Purchase Price or claim against
Seller, or (ii) terminate this Agreement by written notice to Seller and Escrow Agent. If
Purchaser terminates this Agreement pursuant to this paragraph then the Deposit shall be
returned to Purchaser and thereafter the parties shall be relieved of any further obligations under
this Agreement. Although the accuracy of all warranties shall be a condition to closing, if
Purchaser has actual knowledge that any warranty is not correct as of closing but elects to
acquire the Property notwithstanding such knowledge, then Purchaser shall not be entitled to rely
on such warranty, to the extent that it is not accurate, and shall not be entitled to commence any
action to recover damages from Seller due to the incorrectness of such warranty. For purposes of
this Agreement (including, without limitation, Section 12 hereof) the words "to Seller's
knowledge" and any words of like import shall be interpreted to mean the current actual (as
opposed to implied or constructive) knowledge of Everett Atwell and/or Alex Peters, without
Seller or Everett Atwell and/or Alex Peters having the obligation to make any independent
investigation and without attribution to Seller or such individuals of facts and/or matters
otherwise within the personal knowledge of any other current or previous officers, employees,
managers, representatives, or agents of Seller or any other Seller Related Parties or any third
parties and shall not include the knowledge of any past or current officer, director, employee,
agent or representative of Seller or any other Seller Related Parties other than Everett Atwell
and/or Alex Peters. Notwithstanding anything to the contrary contained in this Agreement,
Everett Atwell and/or Alex Peters shall have no personal liability whatsoever in connection with
this Agreement or any document or matter related thereto. Seller represents that Everett Atwell
and/or Alex Peters are the persons most knowledgeable as to the accuracy of the representations
of Seller in this Agreement.
12.12 The representations and warranties set forth in this Section 12 are made as
of the date of this Agreement and are remade as of the Closing Date and shall not be deemed to
be merged into or waived by the instruments of Closing, but shall survive the Closing for a
period of six (6) months. Seller and Purchaser shall have the right to bring an action thereon
only if Purchaser has given Seller written notice of the circumstances giving rise to the alleged
breach within such six (6) month period. Notwithstanding anything to the contrary cortained
herein, if prior to Closing Purchaser has knowledge that any representation or warranty of Seller
set forth in this Agreement including, without limitation, in Section 12, is not true, and
nevertheless Purchaser proceeds to close the transaction, then Purchaser shall be deemed to have
10
irrevocably and unconditionally waived its rights to assert any claim against Seller after the
Closing with respect to any misrepresentation of which it had knowledge prior to the Closing.
For purposes of this Section 12, Purchaser shall be deemed to have actual knowledge of all
information set forth in this Agreement (and all exhibits and/or schedules thereto) and all Due
Diligence Documents. Notwithstanding anything to the contrary contained in this Agreement,
the maximum liability of Seller following the Closing that survives the Closing (for the period
set forth in Section 12), under this Agreement, any documents executed and delivered by Seller
at the Closing shall not exceed the aggregate sum of Five Hundred Thousand and No/100 Dollars
($500,000.00). The provisions of this Section 12 shall survive the Closing or a termination of
this Agreement.
13, PURCHASER'S REPRESENTATIONS AND WARRANTIES. As a material
inducement to Seller to execute this Agreement and consummate this transaction, Purchaser
represents and warrants to Seller that:
(a) Organization and Authority. Purchaser has been duly organized and is validly
existing as a Florida corporation, in good standing in Florida. Purchaser has the full right and
authority and has obtained any and all consents required therefor to enter into this Agreement,
and, subject only to obtaining certain internal approvals on or before the expiration of the Due
Diligence Period, to consummate or cause to be consummated the Closing. This Agreement and
all of the documents to be delivered by Purchaser at the Closing have been and will be
authorized and properly executed and will constitute the valid and binding obligations of
Purchaser, enforceable in accordance with their terms.
(b) Conflicts and Pending Action. "There is no agreement to which Purchaser is a
party or to Purchaser's knowledge binding on Purchaser which is in conflict with this
Agreement. There is no action or proceeding pending or to Purchaser's knowledge, threatened.
against Purchaser which challenges or impairs Purchaser's ability to execute or perform its
obligations under this Agreement.
(c) Purchaser is in compliance with the requirements of Executive Order No.
13224, 66 Fed. Reg. 49079 (September 23, 2001) (the "Order') and other similar requirements
contained in the rules and regulations of the Office of Foreign Assets Control, Department of the
Treasury ("OFAC") and in any enabling legislation or other Executive Orders or regulations in
respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively
called the "Orders'). Neither Purchaser nor any beneficial owner of Purchaser is: (i) listed on
the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to
the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to
any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists
are collectively referred to as the "Lists"); (ii) a person who has been determined by competent
authority to be subject to the prohibitions contained in the Orders; or (iii) owned or controlled
by, or acts for or on behalf of, any person on the Lists or any other person who has been
determined by competent authority to be subject to the prohibitions contained in the Orders.
K CONDITIONS PRECEDENT. An express condition precedent to Purchaser's
obligation to close this transaction is the truth and correctness, in all material respects, of all of
Seller's representations and warranties and the fulfillment of all of Seller's covenants at all times
during the term of this Agreement and as of Closing.
15. DEFAULT BY SELLER if any of Seller's representations and warranties are
not true and correct in any material respect or Seller's covenants are not fulfilled as of Closing
(or earlier specified date, if any), or Seiler fails to perform any of the terms and conditions of this
Agreement or is otherwise in default under this Agreement, in any event without fault on
Purchaser's part, then Purchaser, at Purchaser's sole option, may elect to:
15.1 Waive the default or failure and close "as is" without adjustment to the
Purchase Price or claim against Seller; or
15.2 Cancel this Agreement by written notice to Seller given on or before the
Closing Date, in which event Escrow Agent shall return the Deposit together with all interest
tamed on it to Purchaser, Purchaser shall receive reimbursement from Seller of all actual,
documented, out-of-pocket fees, costs and expenses paid by Purchaser to unaffiliated third
parties in performing under this Agreement not to exceed the total and aggregate amount of
Three Hundred Thousand and No/100 Dollars ($300,000.00) (the "Reimbursement Damatzes"),
and thereafter the Parties shall be released from all terms, provisions, obligations and liabilities
of this Agreement, except from those that expressly survive its termination; or
15.3 Seek specific performance of Seller's obligations under this Agreement;
provided, however, that Purchaser shall not have the right to seek specific performance or to
record a [is pendens in connection therewith, unless Purchaser files its action for specific
performance within thirty (30) days after the Closing Date and in connection therewith,
Purchaser files a verified complaint which alleges that Purchaser has the financial ability to
perform under this Agreement and attaches to the complaint evidence of Purchaser's financial
ability to perform as of the Closing Date. Notwithstanding the foregoing, in the event that Seller
renders the remedy of specific performance unavailable because Seller has conveyed the
Property to a third party purchaser prior to the Closing Date, then Purchaser may terminate this
Agreement, receive a refund of the Deposit and seek damages against Seller in an amount equal
to the greater of (i) the Reimbursement Damages or (ii) the difference between (A) the net
proceeds that Seller receives from such sale of the Property and (B) the net proceeds that Seller
would have received had the sale to Purchaser been consummated pursuant to this Agreement;
provided, however, that in order to seek damages pursuant to this Section 15.3, Purchaser shall
be required to file such action within thirty (30) days after the Closing Date.
16. ,DEFAULT BY PURCHASER. In the event of the failure or refusal of Purchaser
to close this transaction, without fault on Seller's part and without failure of title or any condi-
tions precedent to Purchaser's obligations under this Agreement, Seller shall receive the Deposit
together with all interest earned on it as agreed and liquidated damages for said breach, and as
Seller's sole and exclusive remedy for default of Purchaser, whereupon the parties shall be
relieved of all further obligations under this Agreement. THE PARTIES HAVE AGREED
THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO
CONSUMMATE THIS SALE DUE TO PURCHASER'S DEFAULT, WOULD BE
EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER
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NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE
CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT
OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER
WOULD INCUR IN SUCH EVENT; EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH
PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS
AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES
PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT ANY
INDEMNIFICATIONS GIVEN BY PURCHASER IN THIS AGREEMENT.
17. PROBATIONS.
17.1 Real estate and personal property taxes shall be prorated as of the Closing
Date. In the event the taxes for the year of Closing are unknown, the tax proration will be based
upon such taxes for the prior year and, at the request of either party, such taxes for the year of
Closing shall be reprorated and adjusted when the tax bill for the year of Closing is received and
the actual amount of taxes is known.
17.2 Utility bills or charges, where applicable, shall be prorated as of the
Closing Date. The parties shall, to the extent reasonably possible, have utility meters read the day
preceding the Closing Date and Seller shall be responsible for paying all utility bills or charges
which accrued against the Property prior to the Closing Date and Purchaser shall be required to
pay all utility bills or charges accruing against the Property on or subsequent to the Closing Date,
with any charge for which a reading could not be made as of the day preceding the Closing Date
being prorated as of the Closing Date using an estimate based on the most recent reading for
such utility. Purchaser shall, as of the day prior to the Closing Date, post with each utility com-
pany such deposit as each such utility company shall require, to the end that Seller's utility
deposits shall be refunded to Seller following the Closing, after appropriate charge for Seller's
utility bills. Purchaser shall secure its own insurance on the Property as of the Closing Date, and
Seller shall cancel all existing insurance policies as of the Closing Date. Purchaser and Seller
shall, before and after Closing, reasonably cooperate with each other in connection with this
Section 16.2.
17.3 The parties agree that, except as otherwise specifically stated elsewhere in
this Agreement, all income and expenses of the Property are intended to be prorated as of mid-
night of the day before the Closing Date. Purchaser shall be deemed the owner of the Property,
for the purpose of such calculation, for the entire Closing Date. Income shall include all revenue
of Seller derived from the operation of the Property. Expenses shall include a] 1 expenses from the
operation of the Property. Income actually received by Seller prior to Closing in payment for a
period subsequent to Closing shall appear on the closing statement as a credit to Purchaser.
Expenses actually paid by Seller prior to Closing in payment for a period subsequent to Closing
shall appear on the closing statement as a credit to Seller.
17.4 Notwithstanding anything to the contrary in Section 17.3 above, rents
under the Leases (collectively, "Rents"), shall be addressed in the manner set forth in this
Section. All collected Rents for the month in which Closing occurs shall be prorated as of
midnight the day before the Closing Date. All uncollected Rents for the months prior to the
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month in which the Closing occurs and all uncollected Rents for the month of Closing (the
"Delinquent Rents"), shall remain Seller's property, and Seller shall receive no proration credit
therefor at Closing. Purchaser, however, shall receive a proration credit for its prorated portion of
all collected Rents for the month of Closing. All prepaid Rents (for the months following
Closing) paid to or in possession of Seller shall be credited to Purchaser at Closing. Purchaser
agrees to use good faith and commercially reasonable efforts, for a period of six (6) calendar
months after Closing, to collect Delinquent Rents from each tenant ("Tenant or Tenants")
remaining in possession of its space under a ].ease. if any Tenant identifies in writing at the time
of payment what its payment is for or how such payment should be applied, such payment shall
be used or applied in such manner. Any and all other amounts received by Purchaser from any
party owing the Delinquent Rents which are received by Purchaser after the Closing Date shall
first be applied to the Rent due for the then current month, then to Purchaser's reasonable
collection costs (including reasonable attorneys' fees and costs), then to accrued obligations of
such Tenant due after Closing (in the order of accrual), then to the month of Closing, and then to
accrued obligations due to prior Closing. Purchaser shall promptly deliver to Seller any funds to
be applied to Delinquent Rents in accordance with the preceding sentence. No portion of
Delinquent Rents attributable to a particular Tenant shall be applied against the Rents or
Delinquent Rents attributable to another Tenant, or the expenses incurred by Purchaser in
collecting such Rents or Delinquent Rents from other Tenants. Purchaser shall not be obligated
to file suit to collect the Delinquent Rents, After Closing, Seller not shall be entitled to
commence and/or continue any collection efforts against any Tenants owing Delinquent Rents.
Additionally, certain leases identified on Exhibit "10" have been entered into with members of
the United States military (the "Military Leases") and, pursuant to terms of such leases, rent
thereunder is payable in arrears rather than in advance. Accordingly, at such time as Purchaser
collects, in the month following Closing, the applicable rent for the Military Leases with respect
to the month of Closing, Purchaser shall remit to Seller an amount equal to Seller's pro-rata
share of such rent for the month in which the Closing occurred
17.5 All security deposits or prepaid Rent held by or under the control of Seller
and as required by the Leases as set forth on Exhibit "10" (less any offsets indicated thereon as
hereinafter defined, if applicable) shall be paid or credited to Purchaser as of the Closing Date,
and Purchaser shall, with respect to all matters arising or accruing after Closing, assume all
liability therefor. Seller shall not, after the Effective Date and prior to Closing, further offset all
or any portion of such security deposits or prepaid Rent without the prior written consent of
Purchaser.
17.6 Except as otherwise provided in this Agreement, any lease commissions or
tenant improvement costs which have been incurred by Seller in connection with any existing
Leases as of the Effective Date shall be Seller's responsibility. Any such commissions and costs
relating to new leases approved by Purchaser in writing after the Effective Date or associated
with currently existing renewal, expansion or refusal rights of Tenants under the Leases
exercised alter the Effective Date but prior to Closing shall be Purchaser's responsibility. Any
other lease commissions or tenant improvement costs incurred by Seller in connection with the
Leases shall be the responsibility of Seller; provided, however, that Purchaser shall bear the cost
of any lease commissions or tenant improvement costs associated with currently existing
renewal, extension, expansion or refusal rights of Tenants under the Leases exercised after
Closing.
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17.7 To the extent required by applicable law, Seller agrees to pay to the
appropriate taxing authority sales tax collected by Seller in connection with Rent received by
Seller under the Leases for the month in which Closing occurs promptly after Closing. In the
event sales taxes were due to be paid on any Leases prior to Closing, not later than one hundred
twenty (120) days after the Closing Date, Seller shall deliver to Purchaser the receipt or
certificate from the Florida Department of Revenue (such as a "letter of good standing"),
evidencing that the sales taxes for such month and for previous months have been paid in full
and that no interest or penalties are due in connection with same.
17.8 The provisions of this Section 17 shall survive Closing or, to the extent
applicable, the termination of this Agreement.
18. IMPROVEMENT LIENS. Certified, confirmed or ratified liens for governmental
improvements or special assessments as of the Closing Date, if any, shall be paid in full by
Seller, and pending liens for governmental improvements or special assessments as of the Clos-
ing Date shall be assumed by Purchaser, provided that where the improvement has been substan-
tially completed as of the Closing Date, such pending lien shall be considered certified,
19. CLOSING COSTS. At the Closing, Seller shall pay the documentary stamps and
surtax, if any, due on the deed of conveyance and one-half (1 /2) of the cost of the title insurance
premium, including endorsements, for the owner's title insurance policy. Purchaser shall pay,
the cost of the survey, its due diligence expenses and one-half (1/2) of the cost of the title
insurance premium. Each party shall bear the recording costs of any instruments received by that
party, except that Seller shall pay the recording costs on documents necessary to clear title.
20, CLOSING.
20.1 Seller shall convey title to the Property by Special Warranty Deed subject
only to the Permitted Exceptions (which, if Purchaser requests, shall not be specifically
enumerated). The form of Special Warranty Deed is attached hereto as Exhibit "20.1 ". Seller
shall also deliver to Purchaser at the Closing:
20.1.1 a mechanic's lien affidavit, to the title insurer and Purchaser, in
form acceptable to Purchaser's Title Insurer to delete the standard exception relating to such
liens in Purchaser's owner's title insurance policy;
20.1.2 an affidavit (in a customary form), to the Title Insurer and
Purchaser, that there are no unrecorded easements and that Seller has exclusive possession of the
Property, except for the rights of tenants shown on Ex j'bit "10" or hereafter permitted by this
Agreement in form reasonably acceptable to Purchaser's Title Insurer to delete the standard
exceptions relating to such matters in Purchaser's owner's title insurance policy;
20.1.3 a customary gap affidavit reasonably acceptable to Title Insurer for
purposes of deleting the "gap" from Purchaser's title commitment and policy;
15
20.1 A a customary bill of sale with warranty of title for the Personalty;
20.1.5 a customary assignment of all leases, deposits, licenses, easements,
Tights -of -way, contract rights, intangible rights, and other property and rights included in this
transaction containing reciprocal indemnities for matters arising before and slier the Closing;
20.1.6 a restatements of Seller's covenants, representations and
warranties;
20.1.7 reasonable evidence of Seller's existence and authority to sell and
convey the Property;
20.1.8 to the extent in Seller's possession, any and all guarantees and
warranties on all property conveyed pursuant to this Agreement, with assignment of all rights
under the guaranties and warranties;
20.1.9 a non -foreign certificate and other documentation as may be
appropriate and satisfactory to Purchaser to meet the non -withholding requirements under
FIRPTA and any other federal statute or regulations (or, in the alternative, Seller shall cooperate
with Purchaser in the withholding of funds pursuant to FIRPTA regulations);
20.1.10 Tenant notice letter regarding payment of rent; and
20.1.11 an affidavit appropriate in form to satisfy the requirements
of Section 475.709(2)(a) of the Florida Statutes.
20.2 Purchaser shall provide Seller with analogous proof of existence and
authority. Seller and Purchaser shall each execute such other documents as are reasonably nec-
essary to consummate this transaction.
21. BROKERS. The parties each represent and warrant to the other that the only
real estate brokers, salesmen or finders involved in this transaction are Berkshire Hathaway
Knight & Gardner Realty, to whom Purchaser shall pay all real estate brokerage commissions
which may be owing pursuant to separate agreement, and Purchaser shall indemnify, defend and
hold Seller harmless from claims for such payments, and Century 21 All Keys, to whom Seller
shall pay all real estate brokerage commissions which may be owing pursuant to separate
agreement, and Seller shall indemnify, defend and hold Purchaser harmless from claims for such
payment. If a claim for brokerage or similar fees in connection with this transaction is made by
any broker, salesman or finder other than the above -named brokers claiming to have dealt
through or on behalf of one of the parties to this Agreement, then that party shall indemnify,
defend and hold the other party under this Agreement harmless from all liabilities, damages,
claims, costs, fees and expenses whatsoever (including reasonable attorneys' fees and court
costs, including those for appellate matters and post judgment proceedings) with respect to said
claim for brokerage. The provisions of this section shall survive the Closing or the termination
or cancellation of this Agreement.
16
0�
22. ASSIGNABILITY. Purchaser shall be entitled to assign Purchaser's rights and
obligations under this Agreement to any entity that Controls (as defined below) Purchaser, which
is owned and Controlled by Purchaser, and/or to any Affiliate of Purchaser. For purposes of this
Section 21, the term "Affiliate" means any Person (i) that directly or indirectly through one or
more intermediaries controls, is controlled by, or is under common control with the Person in
question, and (ii) in which Purchaser maintains a minimum beneficial ownership interest of
20%. For purposes of this definition, "Control" means the power to direct the day-to-day
management and policies of a Person, directly or indirectly, whether through the ownership of
voting securities, status as a general partner or managing member, by contract or otherwise, and
"Person" means an individual, or a general partnership, limited partnership, corporation,
professional corporation, limited liability company, limited liability partnership, joint venture,
trust, business trust, cooperative or association or any other legally -recognized entity.
23. INSPECTIONS. Subject to the terms, conditions and/or limitations contained in
this Agreement, Purchaser, and Purchaser's agents and contractors, shall have the continuing
right during the term of this Agreement to enter upon the Property at all reasonable times for
purposes of inspection and making tests and studies. Purchaser hereby agrees to and does
indemnify, defend and hold Seller harmless from all liabilities, damages, claims, costs, or
expenses whatsoever (including reasonable attorneys' fees and court costs) for bodily injury,
death, or property damage resulting from any such inspection, test or study. The provisions of
this Section shall survive the Closing or the termination or cancellation of this Agreement.
24. ESCROW AGENT,
24.1 Escrow Agent undertakes to perform only such duties as are expressly set
forth in this Agreement. Escrow Agent shall not be deemed to have any implied duties or obli-
gations under or related to this Agreement.
24.2 Escrow Agent may (a) act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine; (b) assume the validity and accuracy of
any statement or assertion contained in such a writing or instrument; and (c) assume that any per-
son purporting to give any writing, notice, advice or instructions in connection with the provi-
sions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable in
any manner for the sufficiency or correctness as to form, manner of execution, or validity of any
instrument deposited in escrow, nor as to the identity, authority, or right of any person executing
any instrument; Escrow Agent's duties under this Agreement are and shall be limited to those
duties specifically provided in this Agreement.
24.3 The parties to this Agreement do and shall indemnify Escrow Agent and
hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or
in equity, or other expenses, fees, or charges of any character or nature, including attorneys' fees
and costs, which it may incur or with which it may be threatened by reason of its action as
Escrow Agent under this Agreement, except for such matters which are the result of Escrow
Agent's gross negligence or willful malfeasance.
17
24.4 If the parties (including Escrow Agent) shall be in disagreement about the
interpretation of this Agreement, or about their respective rights and obligations, or about the
propriety of any action contemplated by Escrow Agent, Escrow Agent may, but shall not be
required to, file an action in interpleader to resolve the disagreement; upon filing such action,
Escrow Agent shall be released from all obligations under this Agreement. Escrow Agent shall
be indemnified for all costs and reasonable attorneys' fees, including those for appellate and post
judgment matters, incurred in its capacity as escrow agent in connection with any such
interpleader action and the court shall award such attorneys' fees, including those for appellate
and post judgment matters, to Escrow Agent from the losing party. Escrow Agent shall be fully
protected in suspending all or part of its activities under this Agreement until a final judgment in
the interpleader action is received.
24.5 Escrow Agent may consult with counsel of its own choice and shall have
full and complete authorization and protection in accordance with the opinion of such counsel.
Escrow Agent shall otherwise not be liable for any mistakes of fact or errors of judgment, or for
any acts or omissions of any kind unless caused by its gross negligence or willful misconduct.
24.6 Escrow Agent may resign upon five (5) days' written notice to Seller and
Purchaser. If a successor escrow agent is not appointed jointly by Seller and Purchaser within
the five (5) day period, Escrow Agent may petition a court of competent jurisdiction to name a
successor.
25. NOTICES. Any notices required or permitted to be given under this Agreement
shall be delivered by hand, by electronic transmission or by a nationally recognized overnight
delivery service, and addressed as described below; notices shall be deemed effective only upon
receipt or refusal of delivery.
Notices to Purchaser:
American Federated Title Corp., as trustee under Land Trust Agreement
#2016PC, dated April 20, 2016
c/o The Cornfeld Group
3850 Hollywood BLVD, Suite 400
Hollywood, FL 33021
Attn: Jeffrey D. Comfeld
Email: jeff@comfeldgroup.com
With a copy to:
Jack Spottswood, Esq.
500 Fleming St.
Key West, Florida 33040-6882
Email: jack@spottswood.com
18
Notices to Seller.
Peary Court Holdings, LP.
411 West Putnam Avenue, Suite 125
Greenwich, CT, 06830
Attn: Philip Braunstein
Email: 1a>wexford.com
With a copy to:
Peter D. Lopez, Esq.
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Email• P10 earnsweaver.co i
Notices to Escrow Agent:
Earline Woods
Fidelity National Title Group
13800 NW 14" Street
Suite 190
Sunrise, Florida 33323
Email: earline.woods@ctt.com
26. RISK OF LOSS.
26.1 The Property shall be conveyed to Purchaser in the same condition as on
the date of this Agreement, ordinary wear and tear excepted, free of all tenancies or occupancies
except (i) those set forth in Exhibit "10' , (ii) those hereafter permitted pursuant to this
Agreement and/or (iii) those approved by Purchaser in writing. Except in the ordinary course of
Seller's business and to the extent permitted under this Agreement, Seller shall not remove
anything from the Property between the date of this Agreement and Closing_
26.2 Upon receipt of an offer or any notice or communication from any govern-
mental or quasi -governmental body seeking to take under its power of eminent domain all or any
portion of the Property, Seller shall promptly notify Purchaser of the receipt of same and shall
send such communication, or a copy of it, to Purchaser. Upon receipt of such notice, Purchaser
shall have the right to rescind this Agreement by delivery of written notice to Seller within
twenty (20) days of Purchaser's receipt of the communication from Seller and Closing shall be
19
extended, if necessary, to give Purchaser said twenty (20) day period, In the event Purchaser
elects to rescind, then Purchaser shall receive a refund of the Deposit together with all interest
earned on it, in which case both parties shall be relieved of all further obligations under this
Agreement. In the event Purchaser elects not to rescind, then Purchaser shall be entitled to all
condemnation awards and settlements. Seller and Purchaser agree to cooperate with each other to
obtain the highest and best price for the condemned property.
26.3 In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, Seller shall repair and restore the Property to the same condition as
before the fire or casualty, and, provided Purchaser's financing commitment can he extended to
permit a later Closing, the Closing shall be deferred for up to one hundred twenty (120) days to
permit such repair and restoration. If Seller is unable to repair and restore within such one
hundred twenty (120) day period or if Purchaser's financing commitment cannot be extended,
(ben Purchaser shall have the option of canceling this Agreement and receiving a refund of the
Deposit, in which case both parties shall be released from all further obligations under this
Agreement, or proceeding with the Closing, in which case Purchaser shall be entitled to all
insurance proceeds and to credits equal to the insurance deductibles. Notwithstanding the
foregoing, unless the fire or casualty results in damage, the cost of which would exceed
$250,000.00, then Purchaser shall not have the right to terminate this Agreement and the parties
shall proceed to Closing provided that Seller shall assign its right, title and interest in and to the
casualty claim to Purchaser, and Purchaser shall receive a credit at Closing equal to the
deductible amount under Seller's insurance policy.
27. INDEMNITY. Seller shall and does indemnify and hold Purchaser harmless from
any and all liability, including costs and attorneys' fees, including those for appellate proceed-
ings:
27.1 to the State of Florida for sales tax due on any rentals or sales during
Seller's ownership of the Property, under Florida Statutes Chapter 212;
27.2 for services rendered during Seller's ownership of the Property, under any
contracts for services to the Property existing now or at any time prior to Closing;
27.3 for any security deposits of tenants received by Seller prior to Closing and
not credited to Purchaser at Closing;
27.4 for any personal property taxes remaining unpaid during Seller's
ownership of the Property.
28. RADON GAS NOTICL. Pursuant to Florida Statutes Section 404.056(5), Seller
hereby makes, and Purchaser hereby acknowledges, the following notification:
RADON GAS: Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county public
health unit.
29. MISCELLANEOUS.
29.1 This Agreement has been negotiated and executed in Florida; it shall be
construed and governed in accordance with the laws of the State of Florida, without application
of conflicts of laws principles.
29.2 In the event any term or provision of this Agreement is determined by
appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its
nearest legal meaning or be construed as deleted as such authority determines, and the remainder
of this Agreement shall be construed to be in full force and effect.
29.3 In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees. Wherever provision is made in
this Agreement for "attorneys' fees," such term shall be deemed to include accountants' and
attorneys' fees and court costs, whether or not litigation is commenced, including those for
appellate and post judgment proceedings and for paralegals and similar persons.
29.4 Each party has participated fully in the negotiation and preparation of this
Agreement with full benefit of counsel. Accordingly, this Agreement shall not be more strictly
construed against either party.
29.5 Whenever used in this Agreement, the singular shall include the plural, the
plural shall include the singular, any gender shall include every other and all genders, and cap-
tions and paragraph headings shall be disregarded.
29.6 The captions in this Agreement are for the convenience of reference only
and shall not be deemed to alter any provision of this Agreement.
29.7 Time is of the essence with respect to the performance and payment of all
obligations of Seller and Purchaser under this Agreement, and the exercise of all rights of Seller
and Purchaser under this Agreement. Any reference in this Agreement to time periods less than
six (6) days shall, in the computation thereof, exclude Saturdays, Sundays, and legal holidays;
any time period provided for in this Agreement which shall end on a Saturday, Sunday or legal
holiday shall extend to 5:00 p.m. of the next full business day.
29.8 This Agreement constitutes the entire agreement between the parties and
may not be changed, altered or modified except by an instrument in writing signed by the party
against whom enforcement of such change would be sought.
29.9 In the event Purchaser is unable to procure adequate insurance coverage
for the Property to be bound or effective as of the Date of Closing due to an impending hurricane
or tropical storm watch or warning, Purchaser shall have the right to extend the Date of Closing
until such time as the hurricane or tropical storm watch or warning is removed and adequate
insurance coverage is again generally available for the Property, The Date of Closing shall occur
not more than three (3) business days after insurance coverage is again available. Any such
extension of the Date of Closing shall be at no expense to Purchaser.
29.10 All references in this Agreement to exhibits, schedules, paragraphs,
subparagraphs and sections refer to the respective subdivisions of this Agreement, unless the
reference expressly identifies another document.
29.11 All of the terms of this Agreement, including but not limited to the
representations, warranties and covenants of Seller, shall be binding upon and shall inure to the
benefit of the parties to this Agreement and their respective successors and assigns.
29.12 Typewritten or handwritten provisions which are inserted in or attached to
this Agreement as addenda or riders shall control all printed or pretyped provisions of this
Agreement with which they may be in conflict.
29,13 All covenants, representations, agreements and warranties of Seller in this
Agreement, all remedies related to them, and the provisions of this section shall survive the
closing or the termination or cancellation of this Agreement.
29.14 This Agreement may not be amended or modified in any manner nor may
any of its provisions be waived except by written amendment executed by the parties. A waiver,
modification or amendment by a party shall only be effective if (a) it is in writing and signed by
the parties (with respect to a waiver, only the party waiving its right needs to sign), (b) it
specifically refers to this Agreement and (c) it specifically states that the party, as the case may
be, is waiving, modifying or amending its rights hereunder. Any such amendment, modification
or waiver shall be effective only in the specific instance and for the specific purpose for which it
was given.
29.15 Notwithstanding anything contained in this Agreement to the contrary,
certain exhibits and/or schedules to this Agreement have not been completed as of the Effective
Date. Accordingly, Purchaser and Seller hereby acknowledge and agree that: (i) Seller and
Purchaser shall cooperate in good faith and with commercially reasonable diligence in order to
prepare and otherwise finalize any such exhibits and/or schedules within three (3) business days
after the Effective Date, (ii) any representation or warranty contained in this Agreement which
references any exhibit or schedule which may be pending as of the Effective Date shall not be
effective as of the Effective Date, but rather shall be deemed to have been made effective as of
the date upon which Seller and Purchaser enter into an amendment to this Agreement pursuant to
which the various pending exhibits and/or schedules are attached, and (iii) in the event that Seller
and Purchaser are unable to agree upon any or all such exhibits and/or schedules, as evidenced
by a written amendment to this Agreement, then either party shall have the right to terminate this
Agreement by providing written notice to the other party. Upon termination of this Agreement
pursuant to this Section 29.15, the Initial Deposit (and the Additional Deposit, to the extent such
deposit has been paid) shall be refunded to Purchaser and thereafter the parties shall be released
from any obligations or liabilities under this Agreement.
29.16 Waiver of Trial by Jury. SELLER AND PURCHASER HEREBY
KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM BASED ON THIS AGREEMENT, OR ARISING OUT
OF, IJNDF..R OR IN CONNFCTTON WITH T}ITS AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR SELLER AND PURCHASER ENTERING INTO THIS AGREEMENT.
SIGNATURE PAGE FOLLOWS
EXECUTED as of the date first written above in several counterparts, each of which shall
be deemed an original, but all of which constitute only one agreement.
Signed, sealed and delivered
in the presence of: SELLER:
Peary Court HoldinAI ,P.
By: Peary Cj6ur/ AdvisAts LLC, j) *Iaware limited
is
By:
Title:
(As to Seller)
Dated: April _, 2016
PURCHASER:
American Federated
corporatio as Trusti
Agreem 16
- By -
Name: ef#ie rnfeld
Title: Wi6e President
(As to Purchaser) u
Dated: April'1.3, 2016
24
a
Trust
L�
RECEIPT
The undersigned Escrow Agent acknowledges receipt of a wire transfer in the amount of
Two Hundred Fifty Thousand ($250,000.00) Dollars to be held as the Deposit pursuant to the
foregoing Agreement and agrees to hold it and any additional deposits it may receive in
accordance with the terms of said Agreement.
ESCROW AGENT:
Chicago Title Insurance Company
By: _
Name:
Title:
25
Exhibit 1.1
(the "Realty")
A parcel of land situated in the City of Key West, Monroe County, Florida and being
more particularly described as follows: COMMENCING at the intersection of the
Northwesterly Right-of-way Line of Newton Street and the Northeasterly Right -of -Way
Line of White Street (Florida State Plane Coordinates Fast Zone NAD 83/90, Northing
82591.01, Easting = 392639.41): thence N 34008'30" W along the said Northeasterly
Right -of -Way Line of White Street for 310.39 feet; thence N 550,51'30" W for a distance
of 0.05 feet to the back edge (Northeast side) of a concrete sidewalk and the Point of
Beginning; thence N 34008'00" W., and along the Northeast edge of a concrete sidewalk
a distance of 289.66 feet; thence S 55°51'30" W for a distance of 0.10 feet to the
Northeasterly Right -of -Way Lane of White Street; thence N 34"08'30" W along the said
Northeasterly Right-of-way Line of White Street for a distance of 31.83 feet; thence N
55'5110" E for a distance of 0.10 feet to the said hack of the sidewalk of White Street;
thence N 34°08'00" W along the said Northeasterly edge of a sidewalk for a distance of
853.03 feet to an existing fence; thence N.55'36'56"E., and along the said fence, which
ties on Eaton Street a distance of 194.19 feet to a point lying 0.5 feet (6 inches)
Northeast o a fence corner; thence S 79006'43" E., and along a line lying 0,5 feet (6
inches) Northeasterly of a existing fence and wall a distance of 1206.74 feet; thence N
10044'48" E for a distance of 8,75 feet. to the Southeasterly Right -of -Way Line of Palm
Avenue; thence S 79"15'12" E along the said Southeasterly Right-of-way Line of Palm
Avenue for a distance of 55.00 feet; thence S 10-44'48" W for a distance of 8.88 feet to
the extension of a line lying 0.5 feet (6 inches) Northeasterly of the existing fence and
wall; thence S 79006'43" E and along a line lying 0.6 feet (6 inches) Northeasterly of the
existing fence and wall for a distance of 325.66 feet to a point lying 0.5 feet (W) from the
corner of the fence on Eisenhower Drive; thence S 40o&08" E along the fence on
Eisenhower for a distance of 20.90 feet; thence S 1400T44" E and being partially along a
fence line for 167.37 feet to Angela Street; thence S 56'24'46" W., ind along a line lying
0.5 feet (6 inches) Southeasterly of the fence line of Angela Street a distance of 1080.22
feet; thence N 19°36'43"W., and along the edge of an existing fence a distance of 72.01
feet; thence S 68'44'44" W., and along the edge of an existing fence a distance of 204.28
feet to the Northeast side of a concrete sidewalk and the Point of Beginning.
26
Exhibit 1.7
Site Plan
(To be provided by Seller within three (3 )business days after the Effective Date)
27
Exhibit 7.3
Permitted Exceptions
(To be provided by Seller within three (3 )business days after the Effective Date)
28
Exhibit 10
Rent Roll
(To be provided by Seller within three (3 )business days after the Effective Date)
29
Exhibit 11.2
Due Diligence Documents
(To be agreed upon between Seller and Purehaser within three (3 )business days q fter the
Effective Date)
30
Exbibit 12.1
Contracts, Subcontracts, Arrangements, Licenses, Concessions, Easements, Agreements
(Tip be provided by Seller within three (3)business days after the Effective Date)
31
Exhibit 12.19
The Approved Forty -Eight (48) Unit Development
(7'o be provided by Seller wlthJn three (3 )business days after the E, fjedive Date)
0471059 0
32
�f t�
Sam Kaufman
City Comuissioner THE CITY OF KEY WEST
District 2 P.O. BOX 1409
KEY WEST, FL 33041-1409
Mr. Mark Rosch, Sr. Property Acquisition Specialist
Monroe county Land Authority
1200 Truman Ave., Suite #207
Key West, FL 33040
Via E-mail:.osch-mark@moaroecounty-fl.gov
Re: Peary Court Project May 16, 2016
Dear Mr. Rosch,
3126 Hagler Avenue
(305)809-3844
skaufman@cityoflceywest-fl.gov
I am writing this letter to ask you and the Monroe County Land Authority to consider
one request pertaining to the 109 market rate land units associated with the Peary Court
Project. I was one of the three City of Key West Commissioners who voted against this
project. 1, however, fully accept the will of the majority of the City Commissioner and I am
not asking you to in any way to disregard the recommendation of the City of Key West.
I feel that it is important to raise the issue of these 109 market rate units which was
not addressed by the City Commission. The proposed purchasers represented by Mr. Jeffrey
Cornfeld stated in his letter to you dated May 7, 2016, on page two, "Our plans for the
property would only be feasible with the support of the Land Authority funds. Although we
agree the property is worth $60M as it sits un-restricted today, our company is not interested
in taking the property to its' highest and best use as upscale housing." This raises the
question of the potential for transfer of these market rate units.
My request to you is to consider the following: in the event that the purchaser
chooses to sell or transfer the market rate land units, the proceeds or a portion thereof should
revert back to the Land Authority to benefit affordable housing in Key West. This is a
reasonable request given the understanding that this purchase would not be possible without
the funds from the Monroe County Land Authority. It is my understanding that the sale
and/or transfer of these 109 market rate units can be worth millions of dollars which could
help fund affordable housing for lower -wage earners and families. The sale or transfer of
these market rate units benefitting the purchaser alone was never contemplated or discussed
by the Key West City Commission.
Thank you for your consideration.
Sincerely,
cc Board of County Commissioners
Charles G. Pattison, Executive Director, Land Authority
Key to the Caribbean — Average yearly temperature 77° F.