LAND DISPOSITION AND DEVELOPMENT AGREEMENT
BETWEEN
YONKERS COMMUNITY DEVELOPMENT AGENCY
AND
HOMES FOR AMERICA HOLDINGS, INC.
Dated December 21, 2001
THIS LAND DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement") is dated
as of the 21st day of December, 2001 by and between the YONKERS COMMUNITY
DEVELOPMENT AGENCY, a public benefit corporation having its principal office at
00 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx (the "Agency") and HOMES FOR AMERICA
HOLDINGS, INC., a corporation organized and existing under the laws of the State
of Nevada, having its principal office at Xxx Xxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000 (the "Developer").
W I T N E S S E T H:
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WHEREAS, in furtherance of the objectives of Articles 15 and 15-A of the
General Municipal Law of the State of New York, as amended, the Agency has
undertaken a program for the acquisition, clearance, replanning, reconstruction
and neighborhood rehabilitation of slum and blighted areas in the City, and in
this connection, it has been engaged in carrying out a neighborhood development
program known as the "Yonkers Neighborhood Development Program, No. N.Y. A-4"
(hereinafter called the "Urban Renewal Project") in certain areas located in the
City, including an area known as X.X.X. Xxxx 0 (hereinafter called the "Urban
Renewal Project Area"); and
WHEREAS, in accordance with Section 504 of Article 15 of the General
Municipal Law of the State of New York, as amended ("Article 15"), the City
Council of the City of Yonkers (hereinafter called "City Council"), by
resolutions adopted November 12, 1968 and December 16, 1980, has found that the
Urban Renewal Project Area is appropriate for urban renewal, as defined in
Section 502(3) of Article 15, and has designated said Urban Renewal Project Area
as an urban renewal area; and;
WHEREAS, the Agency has prepared an urban renewal plan for the Urban
Renewal Area, which urban renewal plan was submitted to the Planning Board of
the City of Yonkers (hereinafter called the "Planning Board"), which, by
resolution adopted December 18, 1968 unqualifiedly approved the urban renewal
plan and certified that such urban renewal plan conforms to the comprehensive
community plan for the development of the municipality as a whole, is consistent
with local objectives, complies with the provisions of Section 502(7) of Article
15 and conforms to the finding made pursuant to Section 504 of Article 15; and
WHEREAS, the City Council approved the aforesaid urban renewal plan by
resolution adopted January 28, 1969 and made the necessary statutory findings in
accordance with subdivision 4 of Section 505 of Article 15; and
WHEREAS, the Agency has duly modified the aforesaid urban renewal plan for
the Urban Renewal Project Area on eleven occasions, the eleventh such
modification having been submitted to the Planning Board which held a public
hearing after due notice on February 17, 1999 and by resolution adopted on such
date unqualifiedly approved such modified urban renewal plan and certified that
such modified urban renewal plan conforms to the comprehensive community plan
for the development of the municipality as a whole, is consistent with local
objectives, complies with the provisions of Section 502(7) of Article 15 of the
General Municipal Law and conforms to the finding made pursuant to Section 504
of said Article 15; and
WHEREAS, after a hearing held on April 14, 1999 the City Council approved
the aforesaid modified urban renewal plan by Resolution No. 65-1999 adopted on
such date and in connection with such approval made the necessary statutory
findings in accordance with subdivision 4 of Section 505 of Article 15; and
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WHEREAS, a copy of the aforesaid modified urban renewal plan, together with
all the aforesaid modifications thereof (which modified urban renewal plan, as
so modified, and as it may hereafter be further modified, revised and/or amended
from time to time pursuant to law, and as so constituted from time to time, is,
unless otherwise indicated by the context, hereinafter called the "Urban Renewal
Plan"), has been filed in the office of the Yonkers City Clerk; and
WHEREAS, the Developer has submitted to the Agency a proposal for the
redevelopment of an approximately ten thousand (10,000) - square-foot site
within the Urban Renewal Project Area, situated along the southerly side of Main
Street in the block bounded by Xxxx Xxxxxx, Xxxxx Xxxxx Xxxxxx, Xxxxxx Xxxxxx
and Hawthorne Avenue, which site is described by metes and bounds in Exhibit "A"
annexed to this Agreement, and is hereinbelow referred to as the "Building
Site"; and
WHEREAS, in connection with its proposal to become the redeveloper of the
Building Site the Developer has submitted to the Agency a Redeveloper's
Statement for Public Disclosure and Redeveloper's Statement of Qualifications
and Financial Responsibility (form HUD-6004) describing the Developer and its
qualifications, and describing the proposed redevelopment, and such statements
were approved by the Agency by Resolution No. 16-1998 adopted by the Agency on
April 29, 1998; and
WHEREAS, pursuant to subdivision 2 of Section 507 of Article 15, by
Resolution No. 01-01 adopted by the Agency on December 21, 2001, the Developer
was duly designated as a qualified and eligible sponsor for redevelopment of the
Building Site, after due notice of the identity of the Developer as the proposed
sponsor and of the Developer's proposed use of the Building Site; and
WHEREAS, in accordance with the State Environmental Quality Review Act of
the State of New York a Final Generic Environmental Impact Statement
(hereinafter called the "FGEIS") for the Master Plan and for the proposed
development of the Master Plan area, including the Building Site, in accordance
therewith was submitted to the Agency, and by Resolution No. 23-1998 adopted on
November 23, 1998 the Agency authorized the circulation of a notice of
completion of the FGEIS in accordance with such State Environmental Quality
Review Act and the implementing regulations issued thereunder by the Department
of Environmental Conservation of the State of New York; and
WHEREAS, by Resolution No. 26-1998, adopted on December 16, 1998, the
Agency approved a Statement of Environmental Findings regarding the Master Plan,
in accordance with the State Environmental Quality Review Act and such
implementing regulations; and
WHEREAS, by Resolution No. 27, adopted on December 16, 1998, the Agency
approved the Master Plan and authorized the communication of such approval to
the City Council; and
WHEREAS, by Resolution No. 56-1999, adopted on April 14,1999, the City
Council as an involved agency under the State Environmental Quality Review Act
approved its own Statement of Environmental Findings for the Master Plan; and
WHEREAS, by Resolution No. 57-1999, adopted on April 14,1999, the City
Council approved the Master Plan; and WHEREAS, the redevelopment of the Building
Site proposed by the Developer is consistent with the purposes of the Master
Plan; and
WHEREAS, on August 28, 2000, in accordance with the Zoning Ordinance of the
City, the City Council enacted General Ordinance No. 3-2000 approving a
conceptual plan ("Conceptual Plan") for the Building Site as a Planned
Development or Redevelopment Zone, which Conceptual Plan is consistent with the
statements of environmental findings theretofore approved by the Agency and the
City Council; and
WHEREAS, pursuant to subdivision 2 of Section 507 of Article 15 the Agency
by Resolution No. 01-02 adopted on December 21, 2001, approved this Agreement
and authorized the Agency to execute and deliver it, subject to approval of this
Agreement by the City Council; and
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WHEREAS, pursuant to subdivision 2 of Section 507 of Article 15, the City
Council after due notice held a public hearing on ____________, 2001, and
subsequent thereto, by Resolution No. ____-2001 adopted on ___________, 2002,
duly approved the designation of the Developer as a qualified and eligible
sponsor, and duly approved this Agreement; and
WHEREAS, the Agency has determined that the redevelopment of the Building
Site as contemplated in this Agreement, and the fulfillment generally of the
terms of this Agreement, are in the vital and best interests of the City and the
health, safety, morals, and welfare of its residents, and in accord with the
public purposes and provisions of the applicable Federal, State and local laws
and requirements under which the Urban Renewal Project has been undertaken and
is being assisted;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Agency and the Developer
hereby agree as follows:
ARTICLE I. DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Affiliate" or "Affiliates" means (a) in the case of any Person, a Person
which, directly or indirectly, controls, is controlled by or is under common
control with such Person, or (b) any individual who is a member of the immediate
family (whether by birth or marriage) of an individual who is an Affiliate under
clause (a) above. For purposes of this definition the phrase "member of the
immediate family" includes a spouse; a brother or sister of the whole or half
blood of such individual or his spouse; a lineal descendant or ancestor
(including an individual related by or through legal adoption) of any of the
foregoing or a trust for the benefit of any of the foregoing. For purposes of
the foregoing definition, "control" (including "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of the entity in
question, whether through the ownership of voting securities, partnership
interests, or by Agreement or otherwise.
"Affirmative Action Document" shall have the meaning provided in Exhibit J
attached hereto and made part hereof.
"Agency" means the Yonkers Community Agency, a public benefit corporation
of the State of New York and a corporate governmental agency of the City of
Yonkers.
"Agreement" means this Agreement and all exhibits hereto and all
amendments, modifications and supplements hereof.
"Architectural Materials" shall have the meaning provided in Section 5.8
herein.
"Article 15" shall have the meaning set forth in the second "WHEREAS"
clause of the preamble to this Agreement.
"Authorized Mortgage" shall have the meaning provided in Section 13.7
herein.
"Buildable Condition" shall have the meaning provided in Section 7.2
herein.
"Building" means the commercial office and retail building to be
constructed by the Developer as part of the Private Improvements, as described
in Section 2.1 herein.
"Building Architect" means Grad Associates, PA or other licensed architect
or architectural firm selected by the Developer and reasonably approved by the
Agency to design the Private Improvements.
"Building Construction Plans" means the list of drawings, specifications,
construction schedule and material samples set forth in Exhibit "B" annexed to
this Agreement.
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"Building Site" means the parcel of land described in Exhibit "A" annexed
to this Agreement.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Certificate of Completion" shall have the meaning provided in Section 6.8
herein.
"City" means The City of Yonkers, a municipal corporation and political
subdivision of the State of New York.
"City Construction Work" shall have the meaning as provided for in Section
6.3 herein.
"City Council" shall have the meaning set forth in the second "WHEREAS"
clause of the preamble to this Agreement.
"City Engineer" shall mean the engineer for the City of Yonkers.
"City's Office of Economic Development" shall mean the Office of Economic
Development of the City of Yonkers.
"Closing" means, collectively, the occurrence of all of the transactions
and deliveries described in Section 4.5 of this Agreement.
"Closing Date" means the date on which the Closing occurs, as defined in
Section 4.1 herein.
"Common Boundary" the boundary running in an easterly-westerly direction
between the Building Site and the Garage Site, along the northerly-southerly
center axis of the Shared Footings.
"Completion" with respect to the Private Improvements, means that (a) the
Director of the Office of Downtown and Waterfront Development of the City,
acting reasonably, has determined that the Private Improvements have been
completed in full compliance with this Agreement, and with the Building
Construction Plans as the same may have been modified in accordance with this
Agreement, and that (b) the Department of Housing and Buildings of the City has
issued a Certificate of Occupancy for the Private Improvements, covering the
building "shell," core, structure, exterior, corridors and common areas,
foundations, roof, utilities, mechanical and electrical systems.
"Conceptual Plan" means the Conceptual Plan approved by the City Council,
for an area inclusive of the Building Site, through the enactment on August 28,
2000 of General Ordinance No. 3-2000, pursuant to Section 43-41 of the Zoning
Ordinance pertaining to the Planned Development or Redevelopment ("PDR") zoning
district classification. If the City Council hereafter approves any modification
of the provisions of the Conceptual Plan pertaining to the Building Site, then,
from and after the date of such approval the term "Conceptual Plan" shall be
deemed to mean the original Conceptual Plan, as so modified. "Construction
Agreements" means the construction agreements or contracts, together with all
amendments, modifications and supplements thereof, for the construction of the
Private Improvements, Garage and other construction under this Agreement,
including, without limitation, general agreements or contracts and agreements or
contracts for project management, construction management, architectural
services, and subcontracts.
"Contractor" means any party (other than the Developer) to a Construction
Agreement.
"DEC" means the New York State Department of Environmental Conservation.
"Deed" shall mean the Deed to the Building Site in the form attached hereto
as Exhibit F.
"Delayed Party" shall have the meaning provided for in the definition of
Unavoidable Delay set forth below.
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"Developer" means Homes for America Holdings, Inc., a business corporation
organized and existing under the laws of the State of Nevada, qualified to do
business in the State of New York.
"DHUD" shall have the meaning set forth in Section 7.4 herein.
"XXX Xxxxx" shall mean the Economic Development Initiative Grant from the
City of Yonkers.
"Environmental Laws" shall mean all federal, state, local and foreign laws
and regulations relating to pollution or protection of human health or the
environment (including without limitation ambient air, surface water, ground
water, land surface or subsurface strata), including without limitation laws and
regulations relating to emissions, discharges, Releases or threatened Releases
of Hazardous Materials or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances. Environmental Laws include but are not limited to CERCLA,
FIFRA, RCRA, XXXX and TSCA.
"Escrow", "Escrow Agent" shall have the meanings set forth in Section 7.6
herein.
"Escrow Agreement" means the escrow agreement described in Section 7.6
herein, to be executed at the Closing substantially in the form set forth in
Exhibit "H" attached to this Agreement.
"Escrow Release Date" shall have the meaning set forth in Section 7.6
herein. "Escrowed Documents" shall have the meaning set forth in Sections 7.6
and 4.5 (a), (b) and (c) herein.
"Event of Default" has the meaning provided in Section 12.1 herein with
respect to the Developer and in Section 12.3 with respect to the Agency.
"FGEIS" means the Final Generic Environmental Impact Statement for the
Yonkers Downtown Waterfront Development Project accepted as complete by the
Agency, in accordance with SEQRA, on November 23, 1998 by Resolution No.
23-1998. "Final Completion" shall mean the date on which the Private
Improvements shall be certified as complete pursuant to Section 6.8 herein.
"Final Date" shall have the meaning set forth in Section 4.6 of this
Agreement.
"Financing Commitments" shall have the meaning set forth in Section 4.4(f)
of this Agreement.
"Financing Entity" shall mean and refer to the Developer's Institutional
Lender(s), or to investors admitted in compliance with any applicable
requirements for Article XI below.
"Findings Statement" means the Statement of Environmental Findings approved
by the Agency with respect to the Yonkers Downtown Waterfront Development
Project on December 16, 1998 by Agency Resolution No. 26-1998, in accordance
with SEQRA as well as the related negative declaration approved by the Yonkers
City Council on May 23, 2000 by City Council Resolution No. 120-2000, in
accordance with SEQRA.
"FIFRA" shall mean the Federal Insecticide, Fungicide and Rodenticide Act,
as amended.
"Garage" means the approximately 600-space public parking garage to be
constructed by the City of Yonkers on the Garage Site.
"Garage Plans" means the architectural and engineering drawings and
specifications prepared by the City's consultants for the Garage listed in
Exhibit "C" annexed to this Agreement.
"Garage Site" means the area of City Tax Block 513 lying generally to the
south of the Building Site and contiguous therewith, as more fully described in
Exhibit "D" attached to this Agreement.
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"Governmental Agency(ies)" means the United States, the State of New York,
the County of Westchester, the City or any political subdivision of any thereof,
and any agency, bureau, department, commission, board, court, public official or
instrumentality of any thereof.
"Governmental Approvals" has the meaning provided in Section 7.1 herein
"Grant Agreement" shall mean the agreement containing the terms of the
Economic Development Initiative Grant from the City of Yonkers.
"Hazardous Substance" means any hazardous, dangerous, toxic or restricted
material, waste, product or substance which is defined or identified as such in
any Environmental Law and also includes asbestos and any petroleum products,
industrial waste or other chemical contamination.
"Institutional Lender" means (a) a savings bank, a savings and loan
association, a commercial bank, trust company, an insurance company (whether
acting individually or in a fiduciary capacity) G.E. Capital, GMAC or comparable
credit corporation organized and existing under the laws of the United States or
any State, (b) a religious, educational or eleemosynary institution, an
employee's welfare, benefit, pension or retirement fund, (c) a real estate
investment trust, or investment bank, (d) any governmental agency or entity
insured by a governmental agency, (e) established hedge fund having experience
in financing construction projects of similar size and scope as the Private
Improvements, or any combination of two or more of the foregoing types of
entities, provided, that in order to qualify as an Institutional Lender for the
purposes of this Agreement, the entity in question (1) must be subject, or
submit itself, to the jurisdiction of the courts of New York State in any
actions arising out of this Agreement, and (2) respecting only those entities
set forth in clause (a) above, are subject to the supervision of the Comptroller
of the Currency of the United States or the Insurance Department or Banking
Department of the State of New York.
"Master Plan" means the document titled Yonkers Downtown Waterfront Master
Plan and Design Guidelines" approved by the Agency on December 16, 1998 by
Agency Resolution No. 27-1998, and approved by the City Council on April 14,
1999 by City Council Resolution No. 57-1999. Copies of the Master Plan have been
filed in the offices of the Agency and the Yonkers City Clerk.
"Mortgagee" shall have the meaning set forth in Section 13.7 herein.
"Note" shall have the meaning set forth in Section 3.2(a) herein.
"Notice" shall have the meaning set forth in Section 16.13 herein.
"PDR Approvals" collectively, the Conceptual Plan approved by the City
Council, and the PDR Site Plan approved by the City of Yonkers Planning Board.
"PDR Site Plan" means the site plan and related materials hereafter
approved by the Planning Board with respect to the Building Site, in accordance
with Section 43-41 of the Zoning Ordinance pertaining to site plan approval for
properties within the Planned Development or Redevelopment ("PDR") zoning
district classification.
"Permitted Exceptions" means the matters set forth in Section 14.1(a)
through 14.1(e) of this Agreement.
"Person" means an individual, corporation, partnership, limited
partnership, joint venture, limited liability company, limited liability
partnership, estate, trust or unincorporated association, any Governmental
Agency, any fiduciary acting in such capacity on behalf of any of the foregoing,
or any other legal or business entity.
"Planning Board" shall have the meaning set forth in the third "WHEREAS"
clause of the preamble to this Agreement.
"Preliminary Construction Schedule" shall have the meaning set forth in
Exhibit "B" annexed to this Agreement.
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"Preliminary Agency Work" shall have the meaning provided in Section 6.1
herein.
"Private Construction Work" shall have the meaning provided in Section 6.5
herein.
"Private Improvements" means the buildings and other improvements to be
constructed by the Developer on the Building Site as described in Section 2.1 of
this Agreement, in accordance with the Building Construction Plans, as the same
may have been modified in accordance with this Agreement.
"Project" shall mean the construction and development of the Building
pursuant to the Building Construction Plans, together with the construction and
development of the Garage pursuant to the Garage Plans.
"Public Construction Work" shall mean the construction and development of
the Garage pursuant to the Garage Plans.
"Purchase Money Mortgage" shall have the meaning set forth in Section
3.2(a) herein.
"QEZE" shall have the meaning set forth in Section 7.5.
"RCRA" shall mean the Resource Conservation and Recovery Act, as amended.
"Release(s)" shall mean any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing, or
dumping into the environment as defined in CERCLA or in any Environmental Law.
"Requirements" means any and all laws, rules, regulations, orders,
ordinances, statutes, codes, executive orders and requirements of all
Governmental Agencies applicable to the Building Site and the Private
Improvements, and shall include, without limitation of the foregoing, the
Findings Statement, the PDR Approvals, the Conceptual Plan, and the Urban
Renewal Plan.
"Resumption Date" shall have the meaning provided in Section 6.5 herein.
"XXXX" shall mean the Superfund Amendments and Reauthorization Act of 1986,
as amended.
"Section 108 Loan" shall have the meaning provided in Section 7.4(a)
herein.
"Section 108 Loan Guarantee Program" shall mean a loan guarantee program
established and administered by the United States Department of Housing and
Urban Development (HUD), whereby the full faith and credit of HUD is used to
secure a loan between the private sector and an eligible applicant (the
"Agency").
"SEQRA" means Article 8 (State Environmental Quality Review Act) of the
Environmental Conservation Law of the State of New York, and the implementing
regulations set forth in 6 NYCRR Part 617.
"Shared Footings" shall have the meaning set forth in Section 6.4 of this
Agreement.
"Staging Period" shall have the meaning set forth in Section 6.2 herein.
"Stairwell Deed" shall have the meaning set forth in Section 7.10 herein.
"Title Company" shall mean First American Title Insurance Company of New
York.
"Title Objections" has the meaning set forth in Section 14.2 of this
Agreement.
"TSCA" shall mean the Toxic Substances Control Act, as amended.
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"Unavoidable Delays" means delays incurred by the Agency, the City, a
Contractor, the Developer or any Affiliate of the Developer (as the case may be,
the "Delayed Party") due to strikes, lockouts, work stoppages, labor
jurisdictional disputes, acts of God, inability to obtain labor or materials,
governmental preemptions or restrictions, enemy action, riot or other civil
commotion, fire, casualty or other causes beyond the reasonable control of the
Delayed Party, including, without limitation, if the Delayed Party is a
Contractor, the Developer, or an Affiliate of the Developer, the breach, default
or delay by the Agency in the payment or performance of its obligations under
this Agreement or any agreement referred to in this Agreement, including,
without limitation, the failure of the Agency to coordinate or complete
construction of the Garage and the Private Improvements as required under
Section 6.2 so that it delays construction of the Private Improvements, the
wrongful failure of the Agency or the City to grant, or any delay in granting,
any consent or approval or the Agency's delay or failure to pay or reimburse the
Developer for any construction work or any other cost required to be reimbursed
by the Agency; in each case provided the Delayed Party shall have notified the
other party to this Agreement pursuant to the provisions of Section 16.13 herein
not later than fourteen (14) days after the Delayed Party knows or should have
known of the occurrence of same and if such notice is given after the expiration
of such fourteen (14) day period, then the period of Unavoidable Delay shall not
be deemed to have commenced until the Delayed Party shall have notified the
other party of the occurrence of same as set forth above. In addition, if any
party to this Agreement in good faith reasonably determines that it would be
prudent to delay taking any further action in furtherance of the Project or any
part thereof because of the commencement and pendency of any action, suit or
court or administrative proceeding (including all appeals in connection
therewith) contesting the Project or any portion thereof, the legality or
validity of any action taken by any Governmental Agency in connection therewith,
or the financing by any Governmental Agency of the Project or any portion
thereof (in each instance, whether or not such party is enjoined or otherwise
restrained from taking any action with respect to all or any part of the
Project), then such party shall notify the other party of such determination
pursuant to the provisions of Section 16.13 herein, stating, in reasonable
detail, its reasons therefor, and any attendant or resultant delay shall be an
Unavoidable Delay, provided such party (if such party is a party defendant or
respondent) shall have commenced contesting or defending, and shall be
diligently contesting or prosecuting the defense of, such action, suit,
proceeding or appeal, and provided further that the period of Unavoidable Delay
shall not be deemed to have commenced until such party shall have so notified
the other party of such determination.
"Urban Renewal Plans" shall have the meaning set forth in the seventh
"WHEREAS" clause of the preamble to this Agreement.
"Urban Renewal Project" shall have the meaning set forth in the first
"WHEREAS" clause of the preamble to this Agreement.
"Urban Renewal Project Area" shall have the meaning set forth in the first
"WHEREAS" clause of the preamble to this Agreement.
"Zoning Ordinance" means the Zoning Ordinance of the City of Yonkers.
ARTICLE II. THE PRIVATE IMPROVEMENTS
Section 2.1 Private Improvements. The Private Improvements shall consist
principally of a commercial office and retail building (the "Building") that
will occupy substantially the entire area of the Building Site, and will contain
the following principal elements:
(a) On the ground floor of the Building, retail facilities containing
approximately nine thousand (9,000) square feet of gross floor area;
(b) On the second, third, fourth, fifth and sixth floors of the Building,
commercial office facilities containing, in the aggregate for all five
floors combined, approximately sixty thousand (60,000) square feet of gross
floor area; and
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(c) Uses and improvements appurtenant and accessory to the foregoing uses.
(d) Nothing contained in this Section 2.1 shall be deemed to relieve the
Developer from compliance with any requirements or restrictions of the
Zoning Ordinance or of the PDR Approvals, or any requirements or
restrictions set forth in the FGEIS or in the Statement of Findings (as
modified by the Negative Declaration), with respect to the redevelopment or
use of the Building Site.
ARTICLE III. SALE OF BUILDING SITE
Section 3.1 Terms of Sale. The Agency agrees to sell the Building Site to the
Developer and the Developer agrees to purchase and take the Building Site from
the Agency, on the Closing Date (as defined in Section 4.2 below), subject to
the terms and conditions of this Agreement.
Section 3.2 Purchase Price. The purchase price is FIVE HUNDRED THOUSAND AND
00/100 ($500,000.00) DOLLARS, payable by the Developer to the Agency as follows:
(a) FIVE HUNDRED THOUSAND AND 00/100 ($500,000.00) DOLLARS, less a credit in
the amount of TWENTY FIVE THOUSAND AND 00/100 ($25,000.00) DOLLARS for
parking permits pursuant to Section 7.9 herein, as evidenced by a Purchase
Money Mortgage and Note executed by the Developer in favor of the Agency
substantially in the from thereof attached hereto as Exhibit K. The
interest rate on the Purchase Money Mortgage shall be at the same rate as
the Section 108 Loan. Interest and principal payments due under the
Purchase Money Mortgage shall be deferred until the earlier of Eighty (80%)
Percent lease-up of the Building (excluding owner occupancy) or two (2)
years from the Closing Date. The Purchase Money Mortgage shall fully
amortize over a five (5) year period commencing on the date of the first
payment.
(b) The Purchase Money Mortgage shall be subject and subordinate to the
mortgages in connection with the Financing Commitment and the Section 108
Loan.
ARTICLE IV. CLOSING; CONDITIONS OF CLOSING
Section 4.1 Time and Place of Closing. The closing (the "Closing") shall take
place at the offices of the Agency, 00 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, or
at the offices of the Developer's mortgage lender or of said lender's attorneys,
at 10:00 A.M. on a date determined in accordance with Section 4.2 below.
Section 4.2 Date of Closing. The date on which the Closing shall occur (such
date, as the same may be adjourned in accordance with the provisions of this
Agreement, being herein referred to as the "Closing Date") shall be on or about
November 15, 2001, or as soon thereafter as possible at a time mutually
satisfactory to the Developer and the Agency.
Section 4.3 Conditions of the Developer's Obligation to Close. The obligation of
the Developer to close hereunder is expressly conditioned upon the fulfillment
by and as of the Closing Date of each of the conditions listed below, provided,
however, that the Developer at its election, evidenced by notice delivered to
the Agency prior to or at the Closing, may waive any or all of the following
conditions:
(a) All representations, warranties, acknowledgments and covenants made by the
Agency in this Agreement shall be true and correct in all material respects
and shall continue to be true and correct in all material respects at the
date of Closing.
(b) All Governmental Approvals that are required to be obtained by the Agency
hereunder and that are required for the construction, occupancy and
financing of the Private Improvements shall have been granted and shall be
in full force and effect beyond all applicable appeal periods.
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(c) There shall not be any lawsuits or legal proceedings pending which, if
successful, would prevent or materially interfere with the use and
development of the Private Improvements, or prevent or materially interfere
with the development of the Garage, or prevent or prohibit the Section 108
Loan or the XXX Xxxxx in accordance with this Agreement or would adversely
affect the validity of this Agreement or any Governmental Approvals. If any
lawsuit or legal proceedings continues for over two years after the date of
commencement thereof, the Developer or the Agency may elect to terminate
this Agreement, unless it is reasonable to anticipate that a final
non-appealable decision or determination will be rendered within a single
additional ninety day period, in which case, if (a) such decision or
determination is not rendered within such single ninety-day period, or (b)
any such decision or determination rendered within such single ninety-day
period prevents or materially interferes with the development of the
Private Improvements or the Garage in accordance with this Agreement or
prohibits or prevents the Section 108 Loan or the XXX Xxxxx, then either
party may elect to terminate this Agreement. This termination right is in
addition rather than in place of any other rights to terminate.
(d) No laws, statutes, ordinances, governmental orders, regulations, rules or
requirements shall have been enacted, adopted, issued or otherwise
promulgated by any Governmental Agency, and/or shall be in force, that
would prevent or materially interfere with the use and development of the
Building Site in accordance with this Agreement, the Conceptual Plan, the
Building Construction Plans, as may have been modified in accordance with
this Agreement, or the Governmental Approvals or would prevent or prohibit
the Section 108 Loan or the XXX Xxxxx; and of which impediment the
Developer has informed the Agency with reasonable promptness.
(e) The Agency shall own good, marketable and insurable (by First American
Title Insurance Company of New York or other title insurance company
licensed in the State of New York) fee simple title to the Building Site,
and shall be able to convey the Building Site to the Developer pursuant to
this Agreement, subject only to the Permitted Exceptions.
(f) The Construction Plans shall have been approved as provided in Article V
below.
(g) The Developer shall have obtained and accepted the Financing Commitments
and shall have provided to the Agency evidence thereof as required in this
Agreement.
(h) The City's Office of Economic Development shall have (i) issued its
commitment to provide the Section 108 Loan to the Developer, (ii) provided
to the Developer a copy of DHUD's written approval of the Section 108 Loan,
and (iii) notified the Developer that the City is ready to proceed to
closing of the Section 108 Loan.
(i) DHUD shall have approved the XXX Xxxxx, the Grant Agreement shall have been
executed and delivered, and all conditions of the advance of grant proceeds
set forth in such Grant Agreement shall either have been satisfied, or
will, upon the occurrence of the Closing, be satisfied.
(j) The City shall have placed the Building Site in Buildable Condition, shall
have entered into Construction Agreements for the construction of the
Garage, and shall have provided to the Developer either (i) a copy of the
notice to proceed with the construction of the Garage issued to the
appropriate Contractors by the City Engineer, or (ii) written confirmation
signed by the City Engineer stating the City Engineer is prepared to issue
a notice to proceed with the construction of the Garage promptly following,
and subject only to, the Closing hereunder.
(k) The Agency shall have assisted Developer to the extent legally possible
with respect to obtaining available Parking Spaces pursuant to Section 7.9
herein.
Section 4.4 Conditions of Agency's Obligation to Close. The obligation of the
Agency to close hereunder is expressly conditioned upon the fulfillment by and
as of the Closing Date of each of the conditions listed below, provided,
however, that the Agency at its election, evidenced by written notice delivered
to the Developer prior to or at the Closing, may waive any or all of the
following conditions:
- EX-10.32 Page 10 -
(a) All representations, warranties, acknowledgments and covenants made by the
Developer in this Agreement shall be true and correct in all material
respects, and shall continue to be true and correct in all material
respects as of the date of Closing.
(b) All Governmental Approvals that are required to be obtained by the Agency
or the City hereunder and that are required for the construction of the
Private Improvements shall have been granted and shall be in full force and
effect beyond all applicable appeal periods.
(c) There shall not be any lawsuits or legal proceedings pending which, if
successful, would prevent or materially interfere with the use and
development of the Private Improvements, or prevent or materially interfere
with the development of the Garage, prevent or prohibit the Section 108
Loan or the XXX Xxxxx, in accordance with this Agreement or would adversely
affect the validity of this Agreement or any Governmental Approvals. If any
lawsuit or legal proceedings continues for over two years after the date of
commencement thereof, the Developer or the Agency may elect to terminate
this Agreement, unless it is reasonable to anticipate that a final
non-appealable decision or determination will be rendered within a single
additional ninety day period, in which case, if (a) such decision or
determination is not rendered within such single ninety-day period, or (b)
any such decision or determination rendered within such single ninety-day
period prevents or materially interferes with the development of the
Private Improvements or the Garage in accordance with this Agreement or
prohibits or prevents the Section 108 Loan or the XXX Xxxxx, then either
party may elect to terminate this Agreement. This termination right is in
addition rather than in place of any other rights to terminate.
(d) All Governmental Approvals that are required to be obtained by the
Developer and that are required for the construction, occupancy and
financing of the Private Improvements shall have been granted and shall be
in full force and effect beyond all applicable appeal periods.
(e) No laws, statutes, ordinances, governmental orders, regulations, rules or
requirements shall have been enacted, adopted, issued or otherwise
promulgated by any Governmental Agency, and/or shall be in force, that
would prevent or materially interfere the use and development of the
Building Site or the Garage Site in accordance with this Agreement, the
Conceptual Plan, or the Governmental Approvals or would prevent or prohibit
the Section 108 Loan or the XXX Xxxxx; and of which impediment the Agency
has informed the Developer with reasonable promptness.
(f) The Developer shall have obtained and shall have accepted Financing
Commitments from its equity investor(s) and Institutional Lender(s) in the
standard forms of such commitments typically issued by such investor(s) and
lender(s), and, not less than ten (10) days prior to the applicable Closing
Date hereunder, shall have provided copies thereof, showing signatures, to
the Agency, and the Agency, acting reasonably, shall have approved such
Financing Commitments, it being agreed that such Financing Commitments
shall be approved unless the Agency, acting reasonably, determines within
five (5) days of receipt of the Financing Commitments, that (i) the
aggregate amount of the Financing Commitments is not sufficient for
completion of the Private Improvements, or (ii) the conditions of or
limitations on advances of funds after the closing thereunder are
inconsistent with the orderly and (except as contemplated herein)
uninterrupted progress of the Developer's construction work in accordance
with the construction schedule referred to in Sections 5.2 and 5.3 below;
or (iii) the terms and conditions of such Financing Commitments are
inconsistent with the terms and conditions of this Agreement or of the
Section 108 Loan Commitment. In the case of the Financing Commitment from
the Developer's Institutional Lender, the Developer shall have paid all
loan commitment fees and other pre-loan-closing expenses (e.g., appraisal,
environmental, engineer's review) required in the commitment.
(g) The Building Construction Plans shall have been approved in accordance with
Article V below.
- EX-10.32 Page 11 -
(h) The Developer shall have delivered to the City a copy of a fully executed
Construction Agreement for the Private Improvements, and the performance
and payment bonds required to be provided by the Contractor for the Private
Improvements in accordance with this Agreement.
(i) The City's Office of Economic Development shall have (i) issued its
commitment to provide the Section 108 Loan to the Developer, (ii) provided
to the Developer a copy of DHUD's written approval of the Section 108 Loan,
and (iii) notified the Developer that the City is ready to proceed to
closing of the Section 108 Loan.
(j) DHUD shall have approved the XXX Xxxxx, the Grant Agreement shall have been
executed and delivered, and all conditions of the advance of grant proceeds
set forth in such Grant Agreement shall either have been satisfied, or
will, upon the occurrence of the Closing, be satisfied.
(k) Immediately following the execution of this Agreement, Developer shall
obtain an appraisal of the Building Site on an as-built basis.
Section 4.5 Closing Transactions. The following transactions and deliveries
shall occur at the Closing:
(a) The Agency shall execute, acknowledge and deliver to the Escrow Agent, in
escrow pursuant to Section 7.6 hereinbelow:
(i) the Deed, in the form attached to this Agreement as Exhibit "F",
acknowledged and ready for recordation in the Office of the
Westchester County Clerk, Land Records Division; and
(ii) The executed Purchase Money Mortgage and Note in accordance with the
Escrow Agreement and Section 7.6 below.
(b) Each of the parties shall execute and deliver to the Escrow Agent such New
York State and City of Yonkers Real Property Transfer Tax Returns and Real
Property Transfer Reports and other documents as shall be necessary to
enable the Escrow Agent to record the Deed upon the termination of the
Escrow.
(c) The Developer and the Agency shall execute and deliver the Escrow deliver
the Escrow Agreement with the Escrow Agent.
(d) The Agency shall deliver to the Developer the written opinion of the
Corporation Counsel of the City in form reasonably satisfactory to the
Developer (assuming that all signatures are genuine, and further assuming
that all documents presented to such counsel as copies conform with the
originals) or other evidence confirming: (1) the due and valid issuance and
effectiveness of any Governmental Approvals over which the Agency, or the
City, the City Council or any City Board, Department, Office or other City
agency has jurisdiction; (2) the due authorization by the Agency and the
City of this Agreement and all other agreements pertaining to the
transactions contemplated by this Agreement to which the Agency or the City
is a party; (3) the power and authority of the Agency and City signatories
to execute all such agreements or instruments on behalf of the Agency and
the City respectively; and (4) that these agreements or instruments
constitute binding obligations of the Agency and the City, enforceable in
accordance with their terms.
(e) the Developer shall deliver to the Agency a current certificate of good
standing of the Developer and a copy the Certificate of Incorporation of
the Developer.
(f) the Developer shall deliver to the Agency the written opinion of counsel to
the Developer, in form reasonably satisfactory to the Agency (assuming that
all signatures are genuine, and further assuming that all documents
presented to such counsel as copies conform with the originals), stating
(1) that the Developer is a corporation duly organized and validly existing
under the laws of the State of Nevada and qualified to do business in the
State of New York; (2) the Developer has the power to enter into the
transactions contemplated by this Agreement, including, without limitation,
- EX-10.32 Page 12 -
entry into this Agreement; (3) all actions by the Developer required to be
authorized in the transactions contemplated by this Agreement, including,
without limitation, entry into this Agreement have been duly authorized;
(4) this Agreement and all documents required to effectuate the
transactions contemplated hereby which are to be executed by the Developer
(including, without limitation, all agreements and instruments to be
executed by the Developer at the Closing) have been duly executed and
delivered by the Developer, and constitute binding obligations of the
Developer, enforceable in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganizations, moratoriums or similar laws affecting the enforcement of
creditors' rights generally and by legal and equitable limitation on the
enforceability of specific remedies; and
(g) [Reserved]
(h) The Developer shall deliver to the Agency copies of resolutions adopted by
the Developer, authorizing the execution and delivery of this Agreement and
the performance of the Developer's obligations hereunder, accompanied by a
certificate signed by the Secretary of the Developer, certifying as to the
due adoption and current effectiveness of such resolutions.
(i) The initial advance of proceeds of the Section 108 Loan obtained by
the Developer for the construction of the Private Improvements shall
be made by the City, at the same rate of interest as the Section 108
Loan plus 150 basis points, in an amount not less than Fifty Thousand
($50,000.00) Dollars, and future advances of such loan shall not be
subject to any conditions that remain unsatisfied as of the Closing
Date, other than customary conditions pertaining to the lender's
procedure for processing and approving advances, and conditions
reflecting the non-availability of the Building Site for Private
Construction Work during the Staging Period. It is the intent of the
Developer to request advances under the Section 108 Loan in tandem
with the construction financing for the Project in order to rate lock
in the year 2002.
(j) One or more of the equity investors whose Financing Commitments have been
submitted and approved by the Agency, prior to the Closing, under Section
4.4 (f) above, shall or shall have contributed not less than $100,000.00 in
funds for the payment of costs of construction of the Private Improvements
and related architectural, engineering, legal, accounting, planning and
other development costs.
(k) If the City or Agency is exempt from paying real property transfer taxes,
the Developer shall pay all such taxes as may be required by law in
connection with the conveyance of the Building Site to the Developer.
(l) All monies payable under this Agreement, unless otherwise specified, shall
be either:
(i) Cash, but not over $1,000.00;
(ii) Good, current check of the Developer up to the amount of $2,000.00;
and
(iii)Good certified check of the Developer, or official check of any bank,
savings bank or trust company, if more than $2,000.00.
(m) Money payable to the Agency at the Closing, other than the purchase price,
may be by check of the Developer up to the amount of $2,000.00; or
(n) The following shall be adjusted as of the date of the Closing: (i) real
estate taxes and any other state, county or municipal charges; (ii) any
special assessments; (iii) water, gas, electric and sewer charges, it being
agreed that the Agency shall obtain prior to Closing final readings of all
metered accounts; and if the Closing shall occur before a new tax rate is
fixed, the apportionment of taxes shall be upon the basis of the old tax
rate for the preceding period applied to the latest assessed valuation. Any
errors or omissions in computing apportionments at Closing shall be
corrected. This provision shall survive the Closing for a period of six
months.
- EX-10.32 Page 13 -
(o) All real property transfer taxes payable as of the date of the Closing by
reason of the conveyance provided for in this Agreement and any costs
related to the recordation of the Deed or any instruments to be recorded as
contemplated in this Agreement shall be paid by the Developer. The
Developer shall pay the costs of any title insurance or surveys obtained by
the Developer. All other closing costs not specifically allocated by this
Agreement shall be adjusted in accordance with local custom in Westchester
County, as determined by the Title Company.
(p) The Agency has the option to credit the Developer as an adjustment of the
purchase price with the amount of any unpaid taxes, assessments, water
charges and sewer charges, together with any interest and penalties
thereon, to a date not less than five (5) business days after the Closing.
If there is anything else affecting the sale, which the Agency is obligated
to pay and discharge at Closing, the Agency may use any portion of the
purchase price to discharge it. The Agency may deposit money with the Title
Company to assure discharge of any unpaid taxes, assessments, water charges
and sewer charges, together with any interest and penalties thereon, to a
date not less than five (5) business days after the Closing, but only if
the Title Company will insure the Developer's title clear of the matter or
insure against its enforcement out of the Building Site.
Section 4.6 Failure to Close. In the event that on March 30, 2002, (the "Final
Date") the transaction contemplated herein has not closed, as determined under
Section 4.2 above, or on any adjourned Closing Date determined in accordance
with this Section 4.6, and the Agency or the Developer, as the case may be (the
"performing party") has fulfilled all conditions of said performing party's
obligation to close hereunder, and such other party (the "non-performing party")
has not, for any reason, other than Unavoidable Delay as provided below in this
subsection, satisfied all conditions of the non-performing party's obligation to
close hereunder as set forth in Section 4.3 or 4.4 above, whichever is
applicable, then such performing party shall have the right to terminate this
Agreement upon thirty (30) days written notice to such non-performing party, and
unless, during such thirty (30) day period, either (a) the performing party
entitled to terminate shall waive such conditions as provided above and agree to
proceed to Closing as hereinafter provided, or (b) such conditions shall be
satisfied in which event the parties will proceed to Closing as hereinafter
provided, then this Agreement shall immediately terminate and become null and
void, and neither party shall have any further rights hereunder or obligations
to the other of any nature hereunder or by reason hereof, except that with
respect to a failure to satisfy any conditions of the Closing that results from
a non-performing party's default under this Agreement, the provisions of this
Agreement pertaining to such default, and to the parties' respective rights,
remedies and obligations in connection with such default, shall be applicable in
addition to, or (in the performing party's discretion) as an alternative to the
performing party's aforesaid right of termination. If within such thirty (30)
day notice period (1) the performing party shall waive the unsatisfied
conditions as described in clause (a) above, or (2) the remaining unsatisfied
conditions are satisfied, then the Closing shall occur within thirty (30) days
following such waiver or satisfaction, as the case may be. In addition to
adjournments provided for above in the case of Unavoidable Delay, either party
to this Agreement may, at the request of the other party, elect to grant to such
requesting party an adjournment for the purpose of affording such requesting
party additional time to perform its pre-closing obligations, it being agreed
that: i) the party of whom such request is made may, in its sole and absolute
discretion, elect to refuse such adjournment, for any reason or for no reason,
and any such refusal shall have no effect on the rights and obligations of the
parties under the other provisions of this Agreement; and ii) if an adjournment
is granted under this sentence, the Final Date, shall be adjusted to reflect
such adjournment.
ARTICLE V. ARCHITECTURAL PLANS
Section 5.1 Employment of Architects. The Developer has selected and employed
Grad Associates, PA as the Building Architect. The Developer shall continue to
retain Grad Associates, PA, or another licensed architect or architectural firm
that has comparable experience and reputation for design quality and is
reasonably acceptable to the Agency, to design the Private Improvements.
- EX-10.32 Page 14 -
Section 5.2 Building Construction Plans. Attached to this Agreement as Exhibit
"B" is a list of drawings, prepared by the Building Architect and a Preliminary
Construction Schedule. The Agency hereby approves such drawings as the approved
"Building Construction Plans" for all purposes under this Agreement. The
Developer hereby confirms that it is has not relied and is not relying upon any
architectural materials of any kind pertaining to the Private Improvements,
heretofore provided by the City to the Developer or the Building Architect; and
that neither the Agency nor the City has made any representations to the
Developer or the Building Architect as to the completeness, accuracy, economy or
buildability of such architectural materials or the development depicted
therein, with respect to all of which the City and the Agency hereby disclaim
any and all responsibility; and that the Developer is relying solely on its own
judgment and on the work product and advice provided by the Building Architect
and Developer's other professional consultants, for all analysis and conclusions
concerning the completeness, accuracy, economy or buildability of the Building
Construction Plans.
Section 5.3 Construction Schedule Updates. At the Closing, and thereafter from
time to time at the request of the Agency, the Developer will provide updated
and more detailed construction schedules.
Section 5.4 Modifications of Plans by the Developer. If the Developer wishes to
make material modifications to the approved Building Construction Plans, either
directly to the Building Construction Plans or through subsequent more detailed
plans, which material modifications are not necessitated by Agency modifications
to the Garage Plans, the Developer shall submit the proposed modifications to
the Agency for review and approval. Any such submission shall clearly identify
all changes, omissions and additions as compared to the approved Building
Construction Plans. If the Agency determines, in its reasonable judgment, that
the proposed modifications conform to the requirements of this Agreement and are
substantially consistent with the approved Building Construction Plans, the
Agency shall so notify the Developer and the Developer shall perform its
construction obligations under this Agreement in accordance with such plans as
so modified. If the Agency determines, in its reasonable judgment, that the
proposed modifications are not acceptable, the Agency shall so notify the
Developer in writing, specifying in reasonable detail in what respects they are
not acceptable, and the Developer shall either (a) withdraw the proposed
modifications, in which case, construction of the Private Improvements shall
proceed on the basis of the plans previously approved by the Agency, or (b)
revise the proposed modifications in response to the Agency's objections, and
resubmit such modifications to the Agency for review and approval within thirty
(30) days after such notification from the Agency. Each review by the Agency
under this Section 5.4 shall be carried out within thirty (30) days following
the date of submission by the Developer of the proposed change and such
modification shall be deemed approved if not rejected in whole or in part in
writing within such period.
Section 5.5 Plan Submission for Building Permit. The Developer will submit
Construction Plans to the Agency no later than it submits Construction Plans to
the Building Department in connection with its building permit application. The
Construction Plans shall be subject to review and approval by the Agency, with
respect to any material modifications from the Building Construction Plans in
accordance with Section 5.4.
Section 5.6 Compliance with Requirements. The Building Construction Plans shall
comply with the Requirements. The responsibility to assure such compliance shall
rest with the Developer. The Agency's approval of any plans under this Article V
shall not be, nor shall it be construed to be or relied upon as, a determination
that such plans comply with the Requirements.
Section 5.7 Garage Plans. On or before the date of this Agreement, the Agency
shall have delivered to the Developer the Garage Plans. The Developer hereby
acknowledges receipt of the Garage Plans, and confirms the consistency and
compatibility of the Garage Plans with the Building Construction Plans. If after
the date of this Agreement the Garage Plans are modified, the Agency shall
furnish such modification to the Developer, it being agreed that prior to making
any material modification the City shall coordinate and consult with the
Developer concerning the same.
- EX-10.32 Page 15 -
Section 5.8 Ownership of Drawings, Specifications and Documents. All
architectural and engineering drawings, specifications and documents
("Architectural Materials") prepared in connection with the design, development
and construction of the Garage shall be the property of the City. All
Architectural Materials prepared in connection with the design, development or
construction of the Private Improvements shall be the property of the Developer,
subject, however, to the rights of the architect pursuant to the agreement for
architectural services between the Developer and the architect which rights will
not prevent the City from using these Architectural Materials for review
purposes and for purposes of allowing coordination with the development and
construction of the Garage, and for dealing with other Governmental Agencies
from which approvals are required in connection with the Garage; or to
facilitate compliance by the Agency or City with legal requirements pertinent to
the Building Site. Moreover, in the event that this Agreement is terminated
under Section 12.2 below by reason of a default by the Developer, the Agency
shall have the right, subject to the agreement for architectural services
between the Developer and the Building Architect, to use the Architectural
Materials to enable a successor developer to construct the Private Improvements,
provided, that such successor shall indemnify and hold harmless the Developer
with respect to any damages, loss or liability incurred by the Developer in
connection with or arising from such use of the Architectural Materials. In the
event that this Agreement is terminated by either party under any other
provision of this Agreement, then the provisions of the preceding sentence shall
be applicable but, in addition, the Agency shall require any successor developer
that make use of the Architectural Materials to reimburse the Developer for any
expense, properly documented by paid bills and invoices, incurred by the
Developer to third parties in connection with the preparation, completion or
modification of the Architectural Materials .
ARTICLE VI. CONSTRUCTION OF PUBLIC AND PRIVATE IMPROVEMENTS
Section 6.1 Preliminary Agency Work. Not later than thirty (30) days following
the date of this Agreement, or as soon thereafter as possible, the Agency shall
commence or cause to be commenced the construction on the Building Site of the
shared footings, the wall separating the Garage and the Building,
architecturally attractive sidewalks, street lights, benches and other on-site
utilities included in and necessary to prepare the Building Site for the Private
Improvements (collectively, the "Preliminary Agency Work"). The Preliminary
Agency Work shall be performed with all reasonable diligence and without
interruption, subject to Unavoidable Delays. The Preliminary Agency Work shall
be completed (as determined by the Building Architect after consultations with
the City Engineer and the Director of Downtown and Waterfront Development) in a
good and workmanlike manner in accordance with the Building Construction Plans,
the Requirements and this Agreement, subject to Unavoidable Delays.
Section 6.2 Garage Construction Staging. For a period not to extend past
December 31, 2001 or as soon thereafter as possible but, in any event, no later
than March 30, 2002, following the completion of the Preliminary Agency Work,
the City and its contractors shall have the right to enter upon the Building
Site in order to (a) construct or complete the northerly half of the Shared
Footings, (b) construct the wall between the Garage and the Building and (c)
utilize the Building Site as a staging area in support of the construction of
the Garage. During such period (the "Staging Period") the Developer and its
contractors shall suspend all work on the Building Site, except as may be
expressly agreed in writing by the Developer and the City Engineer. To the
extent possible, the Agency's Contractor and the Developer's Contractor shall
meet and coordinate the building of both foundations simultaneously, during the
Staging Period. Upon the expiration of the Staging Period the City shall end all
construction staging activities on the Building Site, and within ten (10) days
following the expiration of the Staging Period, the City and its contractors
shall remove all tools, equipment, construction debris and materials from the
Building Site.
Section 6.3 Construction of the Garage. Not later than thirty (30) days
following the execution of this Agreement or as soon thereafter as possible, but
in any event, not later than March 30, 2002, the construction of the Garage (the
"City Construction Work") shall commence, it being agreed that such construction
shall be coordinated with the Preliminary Agency Work and with the Private
Construction Work (as hereinbelow defined) and shall be performed diligently and
without interruption, subject to Unavoidable Delays. The Garage shall be opened
for use by the public no later than December 31, 2002 or as soon thereafter as
possible.
- EX-10.32 Page 16 -
Section 6.4 Shared Footings. The parties acknowledge that certain of the
subsurface footings and piers to be constructed astride the common property line
of the Building Site and the Garage Site (the "Common Boundary"), and in
accordance with the Garage Plans, are intended and designed to provide support
for the Building as well as for the Garage (such shared footings being herein
referred to as the "Shared Footings"). Except as provided in Section 7.6 below
in this Agreement, the Shared Footings shall be constructed by the City at its
expense during the period in which the Agency is performing the Preliminary
Agency Work, and shall be completed not later than December 31, 2001, or as soon
thereafter as possible.
Section 6.5 Resumption, Completion of the Private Improvements. On the tenth
(10th) day following the completion by the City of the removal of all
construction materials, construction debris, tools and equipment from the
Building Site in accordance with the final sentence of Section 6.2 above such
tenth (10th) day being referred to herein as the "Resumption Date", the
Developer will resume or cause to be resumed the construction of the Private
Improvements (the "Private Construction Work"). Following such resumption the
Private Construction Work shall be performed diligently and without
interruption, subject to Unavoidable Delay. All Private Construction Work,
whether occurring before or after the Resumption Date, shall be coordinated with
the Public Construction Work. The Private Improvements shall, subject to
Unavoidable Delay, be Completed no later than either (a) one (1) year following
the date on which a Certificate of Occupancy or Certificate of Completion is
issued for the Garage (excluding interior finishing of the Parking Authority
offices to the provided therein) by the Department of Housing and Buildings, or
(b) two (2) years following the Closing Date, whichever of (a) or (b) shall
first occur.
Section 6.6 Coordination. Prior to the Closing and thereafter during the
construction of the Private Improvements and the Garage, the parties shall
cooperate to coordinate the Developer's construction schedule with that of the
City, and for such purpose the representatives and consultants of the parties
shall meet regularly to assure such coordination. The Agency shall be
responsible for arranging to have the City Engineer and other City Officials
participate in such coordination activities.
Section 6.7 Construction Agreements. Contracts for the Private Construction Work
must be with reputable and qualified contractors considering industry standards
for the area and the requirements in this Agreement. Prior to the Closing the
Developer shall enter into a Construction Agreement with a construction
Contractor to perform the Private Improvements. The Developer shall require that
such Contractor shall, throughout the entire period of construction of the
Private Improvements for which it is responsible, maintain in full force and
effect performance and payment bonds, issued by a surety company licensed to do
business in the State of New York, for the full value of the Private
Improvements for which it is responsible.
Section 6.8 Certificate of Completion.
(a) Promptly after Final Completion of the Private Improvements, in accordance
with those provisions of this Agreement relating solely to the obligations
of the Developer to construct said Private Improvements (including the
dates for commencing construction and for Final Completion set forth in
Article VI in this Agreement), the City will furnish the Developer with an
appropriate instrument so certifying (a "Certificate of Completion"). Such
certification by the City shall be (and it shall be so provided in the Deed
with respect to the Building Site), a conclusive determination of
satisfaction and termination of the agreements and covenants in this
Agreement and in said Deed with respect to the obligations of the
Developer, and its successors and assigns, to construct the Private
Improvements on said Building Site and the dates for the commencement and
Final Completion as aforesaid. Such certificate shall not be unreasonably
denied by the City.
(b) The certification provided for in this Section 6.8 shall be in such form as
will enable it to be recorded in the Office of the Clerk of the County of
Westchester, Division of Land Records. If the City shall refuse or fail to
provide any certification in accordance with the provisions of this
Section, then the City shall, within twenty (20) days after written request
- EX-10.32 Page 17 -
by the Developer, provide the Developer with a written statement,
indicating in detail in what respects the Developer has failed to
materially complete the Private Improvements on the Building Site in
accordance with the provisions of this Agreement and what measures or acts
will be necessary, in the reasonable opinion of the City, for the Developer
to take or perform in order to obtain such certification. If the City fails
to provide the Developer with such written statement within the aforesaid
twenty (20) day time period, then the Developer shall furnish the City with
notice in writing of such failure and if the City fails within fifteen (15)
days after its receipt of such notice to provide the Developer with such
written statement, the Private Improvements shall be deemed to have been
completed as if the Certificate of Completion had been issued therefor.
ARTICLE VII. ADDITIONAL AGREEMENTS BETWEEN THE PARTIES
Section 7.1 Governmental Approvals.
(a) The Agency and the Developer shall each apply for, as soon as practicable
after the date hereof, and shall pursue with due diligence, all
Governmental Approvals for which each party is responsible, as set forth
below:
(i) The Agency is responsible for applying for and obtaining, or causing
the City to apply for and obtain, all governmental permits,
certificates and approvals necessary for the construction, use and
operation of the Garage, including the Shared Footings; all DHUD
approvals necessary for the Section 108 Loan and the XXX Xxxxx; and
all municipal approvals necessary for the designation of the Building
Site and the Garage Site as separate Tax Lots.
(ii) The Developer is responsible for applying for and obtaining all
governmental permits, certificates and approvals, including, but not
limited to environmental approvals under SEQRA and zoning variances
necessary for the construction, use and operation of the Private
Improvements; all municipal approvals necessary for the issuance of
the Section 108 Loan Commitment; and the real property tax incentives
referred to in Section 7.5 below.
(b) In the event that either party to this Agreement shall determine that
additional Governmental Approvals are required, such party shall promptly
notify the other party of such fact, including a projected date for the
obtaining of such Governmental Approvals.
(c) The costs of obtaining the Governmental Approvals, which shall include,
without limitation, filing fees and fees of attorneys and consultants,
shall be paid by the party responsible for obtaining such permit or
approval as described in Paragraph (a) above.
(d) The failure of a party to obtain the Governmental Approvals required to be
obtained by such party shall constitute an Event of Default hereunder
unless, despite such party's commercially reasonable efforts, circumstances
beyond the control of such party preclude it from obtaining such
Governmental Approvals.
Section 7.2 Action to Achieve Buildable Condition. (a) The Agency shall place
the Building Site in "Buildable Condition" prior to the Closing, except as noted
below, or arrange with the City of Yonkers for the City to do so, at the
Agency's or the City's expense. The Building Site shall be deemed to be in
Buildable Condition at such time as each of the following have been
accomplished:
(i) Underground storage tanks, if any, shall have been removed from the
Building Site in accordance with applicable law and any contamination
resulting therefrom remediated as required under all applicable laws.
(ii) All underground utilities have been removed from the Building Site,
or, if not likely to constitute a significant or unusually costly
obstacle to construction as reasonably determined by the Developer,
have been closed off and abandoned in place;
- EX-10.32 Page 18 -
(iii)All excavations made for any of the foregoing purposes have been
backfilled with clean fill containing no Hazardous Substances as
evidenced by the Phase I environmental reportss, and such fill has
been leveled and rolled.
Section 7.3 Hazardous Substances. The Agency or City shall reimburse the
Developer for the cost of excavating and removing any soil containing Hazardous
Substances encountered after the Closing in the course of construction of the
Private Improvements, if and to the extent that excavation and/or removal shall
be necessary in order to comply with applicable laws, rules and regulations,
provided that the Developer has given the Agency written notice thereof and a
reasonable time to respond to such notice. The Developer shall comply with all
applicable laws, rules and regulations in excavating, temporary storage within
the Urban Renewal Project Area, transporting or disposing of any Hazardous
Substances from the Building Site. The City will reimburse the Developer for one
hundred (100%) of the total amount of all out-of-pocket costs incurred by the
Developer to complete this work, including but not limited to costs related to
excavation and removal, transportation, disposal and related requirements, such
as monitoring, and preparation of worker health and safety plans. The City will
pay this amount to the Developer within thirty (30) days following the first
City budget approved after this work is performed, or one year after this work
is performed, whichever is earlier. Regardless of any contrary provisions
contained herein, the time for completion of the Private Improvements set forth
in Section 6.1 shall be extended to reflect the time reasonably required by the
Developer to complete any work required under this Section 7.3. Also, to help
avoid delays in construction of the Private Improvements the City shall provide
an off-site location within the Urban Renewal Project Area to store any soil the
Developer reasonably believes to contain Hazardous Substances, and that cannot
be stored on the Building Site without interrupting construction.
Section 7.4 Financial Assistance.
(a) The City of Yonkers has been informed by the Federal Department of
Housing and Urban Development ("DHUD") that the redevelopment of the
Building Site contemplated in this Agreement is eligible for up to
Three Million ($3,000,000.00) Dollars of financial assistance through
a loan (the "Section 108 Loan") made by the City to the Developer
under the City of Yonkers Section 108 Loan Guarantee Program. The
City's Office of Economic Development has informed the Developer that
under the City's program the City would be willing to subordinate such
a Section 108 Loan and the mortgage securing it to the construction
mortgage loan financing and the permanent loan financing obtained by
the Developer from an Institutional Lender. The specific terms and
conditions of the Section 108 Loan must be negotiated with the City's
Office of Economic Development and set forth in a loan commitment
issued to the Developer. Such commitment is subject to approval by the
City Council of the City, and the terms and conditions of the Section
108 Loan are also subject to final approval by DHUD.
(b) City Council and DHUD approval of the Section 108 Loan will qualify
the Developer to receive from DHUD additional financial assistance of
up to One Million ($1,000,000.00) Dollars for the proposed
redevelopment of the Building Site, through an Economic Development
Initiative ("EDI") Grant.
(c) The Developer agrees to use its prompt and diligent efforts to assist
the City in completing the City and DHUD application and approval
procedures for obtaining the Section 108 Loan and the XXX Xxxxx and,
in furtherance of this objective, to promptly provide the City with
any and all information needed to complete the application process.
Attached to this Agreement as Exhibit "G" is a letter from the
Director of the Office of Economic Development of the City confirming
to the Developer the City's intention to use its best efforts to
conclude all application and commitment procedures as quickly as
possible. The Agency, as owner of the Building Site, agrees to use its
good relations with the City and DHUD to support and expedite these
procedures.
Section 7.5 Real Property Tax Incentives. The Developer shall, upon making a
timely application obtain certification as a Qualified Empire Zone Enterprise
("QEZE"), and shall be entitled to obtain the tax benefits afforded to a QEZE
under the New York State Empire Zone Program.
- EX-10.32 Page 19 -
Section 7.6 Closing Escrow. At the Closing hereunder the Developer and the
Agency shall execute and deliver an escrow agreement, in the form annexed to
this Agreement as Exhibit "H" (the "Escrow Agreement"), to be executed also at
such time by a third party acceptable to the Developer and the Agency to serve
as the "Escrow Agent" thereunder, it being hereby agreed by the Developer and
the Agency that the Title Company is an acceptable entity to serve as the Escrow
Agent. At the Closing, the Escrow Agent shall receive in escrow the documents
and check(s) identified to be so delivered in Section 4.5 (a), (b) and (c) of
this Agreement (such documents and the funds deposited in accordance with the
Escrow Agreement being referred to herein collectively as the "Escrowed
Documents"). The Escrow Agent shall hold the Escrowed Documents until a date
(the "Escrow Release Date") which shall be the earlier of (a) or (b) below: (a)
the date on which the following shall have occurred:
(i) the closing of the Developer's construction loan provided by an
institutional lender and the initial advance of proceeds of such loan
in an amount not less than $100,000;
(ii) completion of the Preliminary Agency Work, as determined by the
Building Architect; and
(iii)completion of the Shared Footings, as determined by the Building
Architect and the City Engineer; or (b) the date determined under
Section 7.7 below.
Section 7.7 Developer's Right to Proceed. If for any reason pertaining to the
Garage or the construction thereof, including Unavoidable Delay, the Agency
shall fail to proceed to Closing hereunder at a time when the Developer shall
have satisfied all conditions of Closing for which the Developer is responsible
under Section 4.4 of this Agreement, and such failure by the Agency continues to
a date at least six (6) months from the date of this Agreement, then in addition
to all other rights and remedies of the Developer (other than termination of
this Agreement) under Section 12.4 below, the Developer shall have the right to
deliver to the Agency a notice specifying a date for Closing which shall be
thirty (30) days from the date of delivery of such notice, and on such thirtieth
(30th) day (if a business day, and if not then on the first business day
thereafter) the Agency shall promptly proceed to Closing hereunder, unless the
Agency is then legally prohibited from doing so by any judicial or
administrative order, judgment, injunction or decree. If the Closing shall occur
as provided in this Paragraph (a), then the Developer shall promptly thereafter
proceed with the construction of the Private Improvements as set forth in
Article VI, including the times for commencement and completion set forth
therein; and shall construct the Shared Footings in accordance with the Garage
Plans as part of the initial phase of such construction. If the Closing shall
occur as provided in this Paragraph (a), the escrow provisions of Section 7.6 of
this Agreement shall not be applicable, and at the Closing the Developer shall
receive a credit against the portion of the purchase price then payable
hereunder.
Section 7.8 XXX Xxxxx. In the event that the XXX Xxxxx is payable to the Agency,
or in the event that the approval or permission of the Agency is necessary
before payment of the XXX Xxxxx to the Developer, the Agency agrees to pay over
to the Developer or to grant its approval or permission to have paid to the
Developer, as soon as practical after said XXX Xxxxx proceeds become available,
so much of the XXX Xxxxx as is applicable to the payment or reimbursement of the
soft costs incurred or to be incurred by the Developer in connection with
obtaining the Governmental Approvals required by this Agreement to be obtained
by the Developer, pre-construction costs and other costs incurred in developing
the building and/or construction plans in connection with the Private
Improvements and/or any other appropriate soft costs incurred by the Developer
in connection with the Project. The agreement by the Agency set forth in this
Section 7.8 with regard to the XXX Xxxxx shall not be conditioned upon or
subject to the fulfillment or completion of the obligations of the Developer as
set forth in this Agreement. The only condition with regard to the agreement by
the Agency as set forth in this Section 7.8, shall be that no Event of Default
by the Developer shall have occurred and be continuing beyond applicable notice
and grace periods herein.
- EX-10.32 Page 20 -
Section 7.9 Parking Spaces. To the extent possible, the Agency agrees to obtain
for the beneficial use of the Developer, its successors, assigns, employees,
tenants, guests, contractors and/or invitees, at Developer's option, seventy
five (75) reserved parking spaces or as many reserved parking spaces in the
Garage as are available, at a rate of approximately Forty and 00/100 Dollars
($40.00) per month per parking space with rate increases as imposed on all other
permit holders. Said parking spaces shall be renewable on a monthly basis
provided that they are paid current. Developer acknowledges that the Agency can
not guaranty seniority and/or a definite number of spaces due to the nature of
the funding provided for the construction of the Garage.
Section 7.10 Emergency Stairwells and Pedestrian Access to Garage. The Agency
agrees to convey to the Developer the notch in the northwest corner of the
Garage for the construction and maintenance, at Developer's expense, of a
stairway and stairwell for use as emergency egress from the Building. Exclusive
access to each such stairwell shall be from each and every floor of the Building
including the basement. The Agency shall convey the notch to the Developer at
the Closing by Bargain and Sale with Covenants Against Grantor's Acts (the
"Stairwell Deed"). The Stairwell Deed shall contain appropriate obligation on
the part of the Developer, its successors, tenants, licenses, invitees and/or
assigns, to maintain the Stairwell Deed area, and to indemnify, defend and hold
the Agency, the City, Yonkers Parking Authority, and/or their respective
successors and/or assigns harmless from any and all costs, expense or liability
in connection with maintenance of and/or use of the Stairwell Deed area.
ARTICLE VIII. USES AND RELATED COVENANTS
Section 8.1 Use of the Building Site. The Developer hereby affirms by covenant
that for a period of twenty (20) years following the Closing Date the principal
use on the ground floor of the Building shall be commercial retail, and that the
principal use of all floors above the ground floor shall be commercial office
use, substantially as described in Section 2.1 above.
Section 8.2 Covenants Binding Upon Successors In Interest; Period of Duration.
The Deed shall expressly provide that the covenants set forth in this Article
VIII hereof shall be covenants running with the land and that they shall, in any
event and without regard to technical classification or designation, legal or
otherwise, and except only as otherwise specifically provided in this Agreement,
be binding, to the fullest extent permitted by law and equity, for the benefit
and in favor of, and enforceable by, the Agency, its successors and assigns,
against the Developer, its successors and assigns and every successor in
interest to the Building Site or any interest therein, and any party in
possession or occupancy of the Building Site.
Section 8.3 Other Requirements. Nothing contained in this Article VIII shall be
deemed to relieve the Developer from compliance with any requirements or
restrictions of the Zoning Ordinance or of the Conceptual Plan or any other
Governmental Approvals, or any requirements or restrictions set forth in the
FGEIS or in the Statement of Findings or in the Agreement, or the PDR rezoning,
site plan approval and related environmental findings made pursuant to the SEQRA
Regulations, with respect to the redevelopment or use of the Building Site.
Section 8.4 Compliance with Laws. The Developer, its successors and assigns,
shall obey, perform and comply with any and all Requirements of Governmental
Authority in any way affecting the Building Site, or the use or condition of the
Building Site, including the construction, operation, alteration or demolition
of the Private Improvements. The Developer, its successors and assigns, shall
have the right to contest in good faith the validity of any such Requirement of
Governmental Authority by appropriate legal proceedings, unless such proceedings
shall operate to cause the sale of the Building Site or any part thereof, or the
placing of any lien thereon or the imposition of fines or other civil or
criminal liability prior to the final determination of such proceedings. The
Developer shall at its own expense obtain or cause to be obtained any and all
licenses and permits necessary for its use of the Building Site, subject to the
provisions of this Agreement allocating between the Agency or City and the
Developer certain responsibilities for obtaining Governmental Approvals. The
Agency or City shall join in the applications for any such licenses and permits
and otherwise cooperate, as necessary, to comply with the Requirements of
Governmental Authority where the signature of the Agency as owner of the
Building Site is required.
- EX-10.32 Page 21 -
Section 8.5 Maintenance. The Developer shall maintain the Building Site, the
Private Improvements and the equipment in good, sound and safe condition and
repair and sightly in appearance. Necessary repairs, maintenance and upkeep will
be performed by the Developer so as to preserve the attractive appearance, the
physical integrity and the sanitary and safe condition of the building. The
Agency or City shall not have any responsibility for the maintenance or repair
of the Building Site, the Private Improvements or the equipment. However, upon
default in such repairs, maintenance or upkeep, the Developer, its successors
and assigns, agree that the necessary repairs, maintenance and upkeep may be
done by the Agency or the City at the expense of the Developer, its successors
and assigns, from time to time and in keeping with this covenant.
Section 8.6 Landscaped Areas. The area of the Building Site not occupied by
structures, vehicular driveways or pedestrian walks, shall be kept planted with
grass, trees, plants or shrubbery and maintained in a healthy condition and neat
appearance. Upon default in such planting or in its maintenance, the Developer,
its successors and assigns, agree that the necessary planting and work may be
done by the Agency or the City at the expense of the Developer, its successors
and assigns, from time to time and in keeping with this covenant.
ARTICLE IX. PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER
Section 9.1 Representations as to Redevelopment. The Developer represents and
agrees that its purchase of the Building Site and its other undertakings
pursuant to this Agreement are for the purpose of redevelopment and not for
speculation. The Developer further recognizes that in view of:
(a) The importance of the redevelopment of the Building Site as a whole to the
general welfare of the City of Yonkers, and
(b) The substantial expenditures and other public commitments made and to be
made by the Agency and the City for the purpose of making such
redevelopment possible, the qualifications and identity of the Developer
are of particular concern to the community, the Agency and the City. The
Developer further recognizes that it is because of such qualifications and
identity that the Agency is entering into this Agreement with the
Developer, and in so doing, is further willing to accept and rely upon the
obligations of the Developer for the faithful performance of all
undertakings and covenants by it to be performed hereunder.
Section 9.2 Prohibition Against Assignment of Agreement. For the foregoing
reasons the Developer agrees for itself and its successors and assigns, that,
except as provided in this Agreement, without written approval of the Agency:
(a) Prior to Completion of the Private Improvements, the Developer will not
make (and heretofore has not made) any total or partial assignment, pledge,
encumbrance or other disposition or any trust or power, or transfer in any
other mode or form of (i) this Agreement in its entirety, or any rights
therein, or (ii) the Building Site or any part thereof (nor will the
Developer make, and heretofore has not made, any contract or agreement to
do any of the same), except (A) with respect to an Affiliate of the
Developer, and (B) an Institutional Lender to obtain financing to construct
the Private Improvements, subject to compliance with the General Municipal
Law Article 15 requirements for designating a qualified and eligible
sponsor, and (C) the City of Yonkers to obtain the Section 108 Loan.
(b) The foregoing restriction shall also apply during the period of the
restriction set forth above, to any sale, transfer, assignment, pledge, or
other disposition or the making of any trust or power in a single
transaction or in the aggregate, of Homes for America Yonkers Waterfront,
Inc., a wholly owned subsidiary of Homes for America Holdings, Inc.
Section 9.3 Conditions of Agency Approval. The Agency shall be entitled to
require, except as otherwise provided in this Agreement, as conditions to any
required approval by the Agency pursuant to Section 9.2 that:
(a) Any proposed assignee or transferee shall have the qualifications,
experience and financial responsibility, as reasonably determined by the
Agency, necessary and adequate to fulfill the obligations undertaken in
this Agreement by the Developer with respect to this Agreement and the
Private Improvements.
- EX-10.32 Page 22 -
(b) A duplicate original of the instrument of sale, transfer or assignment,
duly executed and acknowledged by all parties to the transaction, and
containing the assumption provisions required under Paragraph (c) below,
shall have been submitted to the Agency for review and approval promptly
following the execution thereof, and in any event not less than thirty (30)
days prior to the date of the Closing, and there shall have been submitted
to the Agency for review and approval, together with such instrument, (1) a
statement containing information concerning the purchaser, transferee or
assignee substantially equivalent to the information required by
Redeveloper's Statement for Public Disclosure and Redeveloper's Statement
of Qualifications and Financial Responsibility (form HUD-6004) and required
attachments thereto, and (2) evidence reasonably satisfactory to the Agency
of the power and authority of the purchaser, transferee or assignee to
enter into such assignment and assumption agreement.
(c) Any proposed purchaser, transferee or assignee, by an agreement in writing
satisfactory to the Agency, shall for itself and its successors and
assigns, and expressly for the benefit of the Agency, have expressly
assumed all of the obligations of the Developer under this Agreement and
shall have agreed to be subject to all the conditions and restrictions to
which the Developer is subject with respect to this Agreement, the Building
Site and/or the Private Improvements, as the case may be, provided, that
the fact that any assignee or transferee of, or any other successor in
interest whatsoever to, this Agreement shall, whatever the reason, not have
assumed such obligations or so agreed, shall not (unless and only to the
extent otherwise specifically provided in this Agreement or agreed to in
writing by the Agency) relieve or except such assignee, transferee or
successor of or from such obligations, conditions, or restrictions, or
deprive or limit the Agency of or with respect to any rights or remedies or
controls pertaining to this Agreement or said Building Site or said
Improvements as the case may be; it being the intent of this Section 9.3,
together with other provisions of this Agreement, that (to the fullest
extent permitted by law and equity and excepting only in the manner and to
the extent specifically provided otherwise in this Agreement) no assignment
or transfer of, or change with respect to, the Developer's rights under
this Agreement or rights pertaining to the Building Site, or any interest
in such Building Site, or in the Developer, however consummated or
occurring, and whether voluntary or involuntary shall operate, legally or
practically, to deprive or limit the Agency of or with respect to any
rights or remedies or controls provided in or resulting from this Agreement
with respect to this Agreement or said Building Site or the construction of
the Private Improvements thereon, as the case may be, that the Agency would
have had, had there been no such transfer or change.
Section 9.4 Anti-Speculation Provisions. Neither this Agreement nor the
Developer's interest in this Agreement nor any part thereof, nor any ownership
or member's interest in the Developer (or in any successor-in-interest to the
Developer), may be sold, transferred or assigned by the Developer or by any such
successor if the consideration payable by the transferee or assignee or on its
behalf shall exceed the aggregate amount of all expenditures actually made by
the Developer for or in connection with the Private Improvements prior to such
transfer or assignment, unless such excess shall be used for payment of the
costs of design, development or construction of the Private Improvements in
accordance with this Agreement, it being the purpose and intention of this
Section 9-4 that the Developer (or any such successor) shall not make any profit
through such sale, transfer or assignment prior to Completion of the Private
Improvements. In the event any such sale, transfer or assignment is made (and is
not canceled) the Agency shall be entitled to increase the Purchase Price
payable or paid by the Developer hereunder by the amount that the consideration
for the sale, transfer or assignment is, as reasonably determined by the Agency,
in excess of the amount that may be authorized pursuant to this Section 9.4 For
the purpose of determining whether there is any such excess, the costs taken
into account by the Agency shall be: out-of-pocket costs (paid to non-Affiliates
of the Developer) of purchasing and developing the Building Site, including the
costs of negotiating this Agreement, architectural, engineering, title,
subsurface investigation, legal, market analysis and other technical services,
and, if after the Closing, construction costs and construction loan interest.
- EX-10.32 Page 23 -
Section 9.5 Effect of Transfer or Approval. In the absence of specific written
agreement by the Agency to the contrary, no such assignment or transfer, or
approval thereof by the Agency, shall be deemed to (a) relieve the Developer or
any other person bound in any way by this Agreement from any of its obligations
hereunder, or (b) impair or reduce the effective, day-to-day control of Xxxxxx
X. XxxXxxxxxx over the development and construction activities for which the
Developer is responsible under this Agreement.
ARTICLE X. EQUAL EMPLOYMENT OPPORTUNITY
Section 10.1 State and Federal Requirements. During Construction of the Private
Improvements:
(a) The Developer will not discriminate against any employee or applicant for
employment because of race, religion, creed, color, national origin, age,
sex, marital status or disability, and will take affirmative action to
insure that they are afforded equal employment opportunities without
discrimination because of race, religion, creed, color, national origin,
age, sex, marital status or disability. Such action shall be taken with
reference, but not be limited to: recruitment, employment, job assignment,
promotion, upgrading, demotion, transfer, layoff or termination, rates of
pay or other forms of compensation and selection for training or
retraining, including apprenticeship and on-the-job training.
(b) The Developer will post and keep posted in conspicuous places, available to
employees and applicants for employment, notices to be provided by the
State Division of Human Rights setting forth the substance of the
provisions of Subsection (a) of this Section 10.1 and such provisions of
the State of New York's laws against discrimination as the Division of
Human Rights shall determine.
(c) The Developer will state in all solicitations or advertisements for
employees placed by or on behalf of the Developer, that all qualified
applicants will be afforded equal employment opportunities without
discrimination because of race, religion, creed, color, national origin,
age, sex, marital status or disability.
(d) The Developer will comply with the provisions of Sections 291-299 of the
Executive Law and the Civil Rights Law of the State of New York, will
furnish all information and reports deemed necessary by the State Division
of Human Rights under these non-discrimination clauses and such sections of
the Executive Law, and will permit access to its books, records and
accounts by the State Division of Human Rights, the State Attorney General,
City, Agency, the State Commissioner of Housing and Community Renewal and
the Industrial Commissioner, for purposes of investigation to ascertain
compliance with these non-discrimination clauses and such sections of the
Executive Law and Civil Rights Law.
(e) The Developer will include the provisions of clauses (a) through (d) in
every subcontract or purchase order, and the Developer shall be required
and caused to do so, in such a manner that such provisions will be binding
upon each subcontractor or vendor as to operations to be performed within
the State of New York. The Developer will take such action in enforcing
such subcontract or purchase order as the Agency may direct, including
sanctions or remedies for non-compliance. If the Developer becomes involved
in or is threatened with litigation with a subcontractor or vendor as a
result of such direction by the Agency, the Developer shall promptly so
notify the Attorney General, requesting him to intervene and protect the
interests of the State of New York.
(f) As required by Section 220-e of the New York State Labor Law, the Developer
agrees that in the hiring of employees for the performance of work under
this Contract or any subcontract hereunder, (1) no Contractor,
subcontractor, nor any person acting on behalf of such Contractor, or
subcontractor shall by reasons of race, religion, creed, color, disability,
sex or national origin, discriminate against any citizen of the State of
New York who is qualified and available to perform to work to which the
employment relates; and (2) that no Contractor, subcontractor, nor any
- EX-10.32 Page 24 -
person on his behalf shall, in any manner, discriminate against or
intimidate any employee hired for the performance of work under this
Contract on account of race, religion, creed, color, disability, sex or
national origin.
(g) The Developer will comply with all provisions of Executive Order 11246 of
September 24, 1965, as amended by Executive Order 11375 of October 13,
1967, and of the rules and regulations and relevant orders of the Secretary
of Labor, as required by law.
(h) The Developer will furnish all information and reports required by
Executive Order 11246 of September 24, 1965, as amended by Executive order
11375 of October 13, 1967, and by the rules, regulations and orders of the
Secretary of Housing and Urban Development pursuant thereto, and will
permit access to the Developer's books, records, and accounts by the
Agency, the Secretary of Housing and Urban Development, and the Secretary
of Labor for purposes of investigations to ascertain compliance with such
rules, regulations and orders, as required by law.
Section 10.2 Advertising. During construction and thereafter, the Developer
agrees to include in all advertising for the sale of or rental of residential
dwelling units or commercial space in the Private Improvements a statement to
the effect: (a) that the Private Improvements are open to all persons without
discrimination on the basis of race, religion, creed, color, national origin,
sex, age, disability, marital status or sexual orientation, and (b) that there
shall be no discrimination in public access and use of the Private Improvements.
Section 10.3 City Requirements. In addition to the foregoing requirements of
this Article, the Developer, its successors and assigns shall, in performing its
responsibilities as redeveloper under this Agreement, comply with the
requirements set forth in the Affirmative Action Document attached to this
Agreement as Exhibit "I". Notwithstanding anything to the contrary in such
Affirmative Action Document, the Developer's outreach thereunder to individuals
and businesses shall not be limited to those situated in the target area or the
City of Yonkers.
Section 10.4 Remedies. If the Developer fails to comply with its obligations
under this Article X, the Agency's sole remedy shall be to apply to a court of
competent jurisdiction for such equitable relief as may be available to secure
the performance by the Developer or to take such other actions as may be
provided by law.
ARTICLE XI. REPRESENTATIONS
Section 11.1 Representations of the Developer. In order to induce the Agency to
enter into this Agreement, the Developer hereby represents and warrants, with
full knowledge that the Agency shall rely on such representations and
warranties, that
(a) the Developer is a duly formed and validly existing Nevada corporation
qualified to do business in the State of New York and has full power and
Agency to consummate the transactions contemplated hereby;
(b) neither the Developer, nor any person or entity having an shareholder or
other ownership interest in the Developer or its assets, nor any officer or
director of the Developer, is a party to any agreement (including, without
limitation, any shareholder agreement, voting trust agreement, operating
agreement of or pertaining to the Developer or its ownership or
management), not heretofore disclosed to and approved by the Agency,
containing terms or conditions in any way restricting or subjecting to
conditions subsequent or precedent, or subjecting to approval, consent or
control by any person who or which is not a shareholder, owner or officer
(including without limitation any creditor of or investor in the
Developer), limiting directly or indirectly the ability of the above-named
Officers of the Developer to exercise management discretion and control
over the affairs and business of the Developer in connection with this
Agreement, the Financing Commitments, the Construction Agreements, or any
matter or transaction related to any of the foregoing or agreements or
documents or to the performance or implementation thereof;
- EX-10.32 Page 25 -
(c) this Agreement has been duly authorized by all necessary action on the part
of the Developer and has been duly exercised and delivered by the Developer
and neither the execution and delivery hereof, nor compliance with the
terms and provisions hereof (1) requires the approval and consent of any
Governmental Agency or any other entity or person, except such as have been
duly obtained; (2) contravenes any existing law, judgment, governmental
rule, regulation or other law applicable to or binding on the Developer
(except, and to the extent, that any of the same are to be modified through
Governmental Approvals as herein contemplated), or (3) contravenes or
results in any breach of or, except as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the
Developer under any indenture, mortgage, deed of trust, bank loan or credit
agreement, applicable ordinances, resolutions or, on the date of this
Agreement, any other Agreement or instrument to which the Developer is a
party, specifically including any covenants of any bonds, notes, or other
forms of indebtedness of the Developer outstanding on the date hereof; and
(d) this Agreement constitutes a legal, valid and binding obligation of the
Developer enforceable against the Developer in accordance with the terms
thereof except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratoriums or similar laws affecting the
enforcement of creditors' rights generally and by legal and equitable
limitations on the enforceability of specific remedies.
Section 11.2 Representations the Agency. In order to induce the Developer to
enter into this Agreement, the Agency hereby represents and warrants, with full
knowledge that the Developer shall rely on such representations and warranties,
that
(a) the Agency and the City have full power and agency to consummate the
transactions contemplated hereby;
(b) this Agreement has been duly authorized by all necessary action on the part
of the Agency and the City, as the case may be, and have been duly executed
and delivered by the Agency and the City, as the case may be, neither the
execution and delivery thereof, nor compliance with the terms and
provisions thereof (1) requires the approval and consent of any
Governmental Agency or any other entity or person, except such as have been
duly obtained or such as are Governmental Approvals to be obtained; (2)
contravenes any existing law, judgment, governmental rule, regulation or
order applicable to or binding on the Agency or the City (except, and to
the extent, that any of the same are to be modified through Governmental
Approvals as contemplated herein), or (3) contravenes or results in any
breach of or, except as contemplated by this Agreement, results in the
creation of any lien or encumbrance upon any property of the Agency under
any indenture, mortgage, deed of trust, bank loan or credit agreement,
applicable ordinances, resolutions or, on the date of this Agreement, any
other Agreement or instrument to which the Agency or the City is a party,
specifically including any covenants of any bonds, notes or other forms of
indebtedness of the Agency or the City outstanding on the date hereof; and
(c) this Agreement constitutes a legal, valid and binding obligation of the
Agency, enforceable against the Agency in accordance with the terms
thereof.
Section 11.3 No Other Representations. Each of the parties to this Agreement
acknowledges to the other that, except as otherwise specifically provided
herein, (a) no representations, statement or warranties, express or implied,
have been made by, or on behalf of, any such party with respect to such party or
with respect to the Building Site, or with respect to the transactions
contemplated by this Agreement, and (b) it has not relied on such
representations, statements or warranties.
ARTICLE XII. DEFAULT AND REMEDIES: TERMINATION
Section 12.1 Events of Default by the Developer. The occurrence of any of the
following shall be an "Event of Default" by the Developer under this Agreement:
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(a) The failure of the Developer to pay any sum to the Agency required to be
paid by the Developer hereunder when the same shall become due and payable
and such failure shall continue for sixty (60) days after notice from the
Agency to the Developer;
(b) Failure to proceed to Closing when and in the manner required to do so
under the terms and conditions of this Agreement for reasons other than
Unavoidable Delay;
(c) If the Developer shall admit, in writing, that it is unable to pay its
debts as they become due;
(d) If the Developer shall make an assignment for the benefit of creditors;
(e) If the Developer shall file a voluntary petition under Title 11 of the
United States Code, or if such petition shall be filed against the
Developer and an order for relief shall be entered, or if the Developer
shall file a petition or an answer seeking, consenting to or acquiescing
in, any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
Federal bankruptcy code, or any other present or future applicable Federal,
State or other bankruptcy or insolvency statute or law, or shall seek, or
consent to, or acquiesce in the appointment of, any trustee, receiver,
custodian, assignee, sequestrator, liquidator or other similar official of
the Developer, or of all or any substantial part of its properties;
(f) If within ninety (90) days after the commencement of a proceeding against
the Developer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present
or any future Federal bankruptcy code or any other present or future
applicable Federal, State or other bankruptcy or insolvency statute or law,
such proceeding shall not be dismissed, or if, within ninety (90) days
after the appointment, without the consent or acquiescence of the
Developer, of any trustee, receiver, custodian, assignee, sequestrator,
liquidator or other similar official of the Developer, over all or any
substantial part of its properties, such appointment shall not be vacated
or stayed on appeal or otherwise, or if, within ninety (90) days after the
expiration of any such stay, such appointment shall not be vacated;
(g) If any of the representations made by the Developer in Section 11.1 of this
Agreement shall be false or incorrect, in any material respect, and the
Developer shall fail to cause, within sixty (60) days following notice of
such misrepresentation to the Developer by the Agency, such
misrepresentation to become true and correct as of a date within such sixty
(60) day period; or
(h) If the Developer shall fail to observe or perform one or more of the other
terms, conditions, covenants or agreements contained in this Agreement and
such failure shall continue for a period of sixty (60) days after notice
thereof by the Agency to the Developer specifying such failure, unless such
failure requires work to be performed, acts to be done, or conditions to be
removed which cannot by their nature or because of Unavoidable Delays
reasonably be performed, done or removed, as the case may be, within such
sixty (60) day period, in which case no Event of Default shall be deemed to
exist as long as the Developer shall have commenced curing the same within
such sixty (60) day period and shall, subject to Unavoidable Delays,
diligently and continuously prosecute the same to completion.
Section 12.2 Remedies of the Agency. If an Event of Default by the Developer
shall have occurred and shall not have been remedied within any applicable grace
period provided in Section 12.1 hereof, the Agency shall have the right, at its
option, and in addition to those rights contained in Section 12.7 and 12.8 and
all other rights and remedies available to the Agency at law or in equity, to
terminate this Agreement by giving thirty (30) days notice thereof to the
Developer, and upon the expiration of such notice period this Agreement shall be
deemed terminated. In the event this Agreement shall be terminated by the Agency
as hereinabove provided, (a) the Agency shall be entitled to recover from the
Developer, and the Developer shall pay to the Agency, on demand, all sums then
due and owing by the Developer hereunder and (b) the Developer shall pay to the
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Agency the reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, incurred by the Agency in
terminating this Agreement. Upon the occurrence of the payments required under
clauses (a) and (b) above, and the delivery to the Agency of Architectural
Materials as provided in Section 5.8 above, neither party shall have any further
obligation under this Agreement.
Section 12.3 Events of Default by the Agency. The occurrence of any of the
following shall be an "Event of Default" by the Agency under this Agreement:
(a) The failure of the Agency to pay any sum to the Developer required to be
paid by the Agency hereunder when the same shall became due and payable and
such failure shall continue for sixty (60) days after notice from the
Developer to the Agency;
(b) Failure to proceed to Closing when and in the manner required to do so
under the terms and conditions of this Agreement;
(c) Failure or inability to deliver fee title to the Building Site subject only
to the Permitted Exceptions as provided in Article XIII of this Agreement.
(d) Subject to Unavoidable Delays, the failure of the Agency, on or before the
Closing Date determined under Section 4.2 or (if applicable) 4.6 of this
Agreement, to deliver the Building Site in Buildable Condition excepting
the work identified in Section 7.3 to occur post-Closing, and, prior to
such date, to have commenced and diligently pursued all applications, work
and actions necessary for such purpose, in accordance with this Agreement,
which failure is not cured within sixty (60) days following notice to the
Agency of such failure;
(e) The City or Agency shall have failed to complete installation of all
required municipal water, sanitary sewer, and storm drainage utilities for
the Building Site in readiness for connection, by the Developer, to the
Private Improvements;
(f) If any of the representations made by the Agency in Section 11.2 of this
Agreement shall be false or incorrect in any material respect, and the
Agency shall fail to cause, within sixty (60) days following notice of such
misrepresentation to the Agency by the Developer, such representation to
become true and correct as of a date within such sixty (60) day period; or
(g) If the Agency shall fail to observe or perform one or more of the other
terms, conditions, covenants or agreements contained in this Agreement and
such failure shall continue for a period of sixty (60) days after notice
thereof by the Developer to the Agency specifying such failure, unless such
failure requires work to be performed, acts to be done, or conditions to be
removed which cannot by their nature or because of Unavoidable Delays
reasonably be performed, done or removed, as the case may be, within such
sixty (60) day period, in which case no Event of Default shall be deemed to
exist as long as the Agency shall have commenced curing the same within
such sixty (60) day period, and shall, subject to Unavoidable Delays,
diligently and continuously prosecute the same to completion.
Section 12.4 Remedies of the Developer. If an Event of Default by the Agency
shall have occurred and shall not have been remedied within any applicable grace
period provided in Section 12.3 hereof, the Developer shall have the right, in
addition to those rights contained in Sections 12.7 and 12.8, at its option to
(a) terminate this Agreement by giving thirty (30) days notice thereof to the
Agency, and upon the expiration of such notice period this Agreement shall be
deemed terminated and neither party shall have any further obligations
hereunder, or (b) seek specific performance of all of the Agency's obligations
hereunder; or (c) pursue all other remedies available to the Developer at law or
in equity. If this Agreement shall be terminated by the Developer as hereinabove
provided, then, in addition to all other remedies of the Developer now or
hereafter existing at law or in equity, (1) the Developer shall be entitled to
receive from the Agency, and the Agency shall pay to the Developer on demand all
sums due and owing to the Developer hereunder, and (2) the Agency shall pay to
the Developer the reasonable costs and expenses, including without limitation,
reasonable attorneys' fees and disbursements incurred by the Developer in
terminating this Agreement.
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Section 12.5 Strict Performance. No failure by the Agency or the Developer to
insist upon the other party's strict performance of any covenant, agreement,
term or condition of this Agreement, or to exercise any right or remedy
available to such party, and no payment or acceptance of full or partial
performance during the continuance of any Event of Default, shall constitute a
waiver of any such Event of Default. No covenant, agreement, term or condition
of this Agreement to be performed or complied with by either party, and no
default by either party, shall be waived, altered or modified, except by a
written instrument executed by the other party. No waiver of any default shall
affect or alter this Agreement, but each and every covenant, agreement, term and
condition of this Agreement shall continue in full force and effect with respect
to any other then existing or subsequent default.
Section 12.6 Rights of the Parties. In the event of a default or threatened
default by either party to this Agreement, the other party shall be entitled to
seek injunctive relief to prevent the occurrence or continuation of such default
or threatened default. Except as expressly limited in this Agreement, each right
and remedy of the Agency and the Developer provided for in this Agreement with
respect to default hereunder shall be cumulative, and shall be in addition to
every other such right or remedy provided for in this Agreement. The exercise or
beginning of the exercise by either party to this Agreement of any one or more
of its respective rights or remedies shall not preclude the simultaneous or
later exercise by such party of any or all of its other rights or remedies
hereunder.
Section 12.7 Payment of Expenses. In any action or proceedings seeking to
enforce any of the terms and provisions of this Agreement in which a party
obtains a judgment or decision for substantially the relief requested, the other
party shall pay all of the prevailing party's reasonable costs and expenses
(including, without limitation, attorneys' fees and disbursements) actually
incurred by the prevailing party in respect of such action or proceeding.
Section 12.8 Limitation of Liability of Agency. Notwithstanding anything to the
contrary set forth above, except for such rights of specific performance as
shall be available to the Developer under the terms of this Agreement or at law
or in equity, the Developer agrees that it shall look solely to the interest
owned by the Agency in the Building Site for the enforcement of any remedy or
the satisfaction of any obligation or liability of the Agency under or in
connection with this Agreement or any other agreement or instrument to be
executed pursuant to this Agreement, and the Developer shall not enforce any
remedy or execute or collect any judgment out of or against any other assets or
properties of the Agency. In addition, the Developer agrees that none of the
members, officials, employees or agents of the Agency, and none of the City
Council members, City commissioners or members of City boards, or officials,
employees or agents of the City, shall have any personal obligations or
liability hereunder or under any other agreement or instrument to be executed
pursuant to this Agreement, and that the Developer shall not to seek to assert
any claim or enforce any rights hereunder against any of them.
ARTICLE XIII. MORTGAGE FINANCING; RIGHTS OF MORTGAGEES
Section 13.1 Limitation Upon Encumbrance of the Building Site. Prior to
Completion of the Private Improvements neither the Developer nor any successor
in interest to the Building Site or any part thereof shall engage in any
financing or any other transaction creating any mortgage or other encumbrance or
lien upon the Building Site or part thereof, whether by express agreement or
operation of law, or suffer any encumbrance or lien to be made on or attach the
Building Site, except for the purposes of obtaining, from an Institutional
Lender:
13.1.1 funds to be used or applied only in connection with the development
and construction of Private Improvements on the Building Site or part
thereof including without limitation, interest and soft costs, and
13.1.2 such additional funds, if any, in an amount not to exceed the total
of the purchase price paid by the Developer to the Agency for the Building
Site.
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The Developer (or successor in interest) shall notify the Agency in advance of
any financing, secured by a mortgage or other similar lien instrument, it
proposes to enter into with respect to the Building Site or any part thereof
prior to Completion with respect thereto, and in any event, it shall promptly
notify the Agency of any encumbrance or lien that has been created on or
attached to the Building Site, whether by voluntary act of the Developer or
otherwise.
Section 13.2 Mortgagee Not Obligated to Construct. Notwithstanding any of the
provisions of this Agreement, including but not limited to those which are or
are intended to be covenants running with the land, a Mortgagee shall in no way
be obligated by the provisions of this Agreement to construct or complete the
Private Improvements thereon or to guarantee such construction or completion or
to perform any of the Developer's other agreements, obligations or covenants
under this Agreement with respect to the Building Site (other than those
limiting the uses permitted to be developed on the Building Site, and other
requirements of this Agreement applicable to any improvements which the
Mortgagee undertakes to construct on the Building Site), nor shall any covenant
or any other provision in the Deed with respect to the Building Site be
construed to so obligate such Mortgagee; it is further provided that nothing in
this Section or any other Section or provision of this Agreement shall be deemed
or construed to permit or authorize any such holder to devote the Building Site
or any part thereof to any uses, or to construct any improvements thereon, other
than those uses or Private Improvements provided or permitted in this Agreement.
Section 13.3 Copy of Notice of Default to Mortgagee. Whenever the Agency shall
deliver any notice or demand to the Developer with respect to any breach or
default by the Developer in its obligations or covenants under this Agreement,
such notice or demand shall not be effective unless the Agency shall at the same
time forward a copy of such notice or demand to the Mortgagee, at the last
address of such Mortgagee shown in the records of the Agency.
Section 13.4 Mortgagee's Option to Cure Defaults. After any breach or default
referred to in Section 12.1 above, each such Mortgagee shall (insofar as the
rights of the Agency are concerned) have the right, at its option, to cure or
remedy such breach or default and to add the cost thereof to the mortgage debt
and the lien of its mortgage. Any rights and remedies of the Agency resulting
from any such breach or default shall be suspended for such period of time as
shall be reasonably necessary after notice to allow a Mortgagee to cure or
remedy such breach or default (including any time reasonably necessary to obtain
possession of the Building Site if possession is necessary to enable a Mortgagee
to cure or remedy such breach or default), provided that the Mortgagee proceeds
with all due diligence to cure or remedy such breach or default and/or obtain
possession. If such breach or default is so cured or remedied the Agency shall
not have any rights or remedies with regard thereto, and if such breach or
default, by its nature, cannot be cured or remedied by Mortgagee, then such
breach or default shall be waived by the Agency if Mortgagee shall promptly,
after notice, take steps necessary to obtain possession as aforesaid, provided,
that no material breach or default consisting of departure from Building
Construction Plans approved by the Agency for the Private Improvements shall be
considered incurable or irremediable for purposes of this Section, and provided,
further, that if the breach or default is with respect to construction of
Private Improvements, nothing contained in this Section 13.4 or any other
provision of this Agreement shall be deemed to permit or authorize such
Mortgagee, either before or after foreclosure or action in lieu thereof, to
undertake or continue the construction or completion of Private Improvements
(beyond the extent necessary to conserve or protect improvements or construction
already made) without first having expressly assumed the obligation to the
Agency, by written agreement satisfactory to the Agency, to complete, in the
manner provided in the Agreement, the Private Improvements on the Building Site.
Any such Mortgagee who shall properly complete the Private Improvements on the
Building Site shall be entitled, upon written request made to the Agency, to a
Certificate of Completion for the Building Site, to such effect in the manner
provided in Article VI of this Agreement, and any such certification shall, if
so requested by such Mortgagee, mean and provide that any remedies or rights
with respect to recapture of or reversion or revesting of title of the Building
Site that the Agency shall have or be entitled to because of failure of the
Developer or any successor in interest to the Building Site or any part thereof,
to cure or remedy any default with respect to the construction of the Private
Improvements on other parts of the Building Site, or because of any other
default in or breach of the Agreement by the Developer or such successor, shall
not apply to the Building Site.
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Section 13.5 Agency's Option to Pay Mortgage Debt or Purchase Property. In any
case, where, subsequent to default or breach by the Developer (or successor in
interest) under this Agreement prior to issuance of a Certificate of Completion,
the Mortgagee:
13.5.1 has, but does not exercise, the option to construct or complete the
Private Improvements on the Building Site, and such failure to exercise
such rights continues for a period of sixty (60) days after the Mortgagee
has been notified or informed of the default or breach, or such longer
period as may be reasonably necessary to enable the Mortgagee to obtain
possession, if necessary, in order to cure the default or breach, provided
the Mortgagee proceeds promptly and thereafter diligently prosecutes its
efforts to obtain such entry or possession, or
13.5.2 undertakes construction or completion of the Private Improvements
but does not Complete such construction within the period as agreed upon by
the Agency and such Mortgagee (which period shall in any event be at least
as long as the period prescribed for such construction or Completion in
this Agreement), and such default shall not have been cured within sixty
(60) days after written demand by the Agency so to do or such longer period
as may be necessary provided the Mortgagee proceeds promptly and thereafter
prosecutes the curing of such default or breach with all due diligence,
provided, that such longer period shall not exceed six (6) months in
duration (it being agreed by the parties hereto that the rights of the
Developer under this Agreement with respect to Unavoidable Delay shall
inure to the Mortgagee, either as successor to the Developer by reason of
foreclosure or deed in lieu thereof, or as Mortgagee in possession, to the
same extent as if the Mortgagee were the Developer).
The Agency shall (and every mortgage instrument made prior to Completion of the
Private Improvements with respect to the Building Site by the Developer or
successor in interest shall so provide) have the option of paying to the
Mortgagee the amount of the mortgage debt, including interest thereon, and all
other sums advanced by the Mortgagee to the Developer or others with respect to
the Building Site, and securing an assignment of the mortgage and the debt
secured thereby. In the event ownership of the Building Site has vested in such
Mortgagee by way of foreclosure or action in lieu thereof, the Agency shall be
entitled at its option, to a conveyance to it of the Building Site or part
thereof (as the case may be) upon payment to such Mortgagee of an amount equal
to the sum of (i) the mortgage debt at the time of foreclosure or action in lieu
thereof (less all appropriate credits, including those resulting from collection
and application of rentals and other income during foreclosure proceedings);
(ii) all expenses with respect to the foreclosure; (iii) the net expense, if any
(exclusive of general overhead) incurred by such Mortgagee in and as a direct
result of the subsequent management of the Building Site; (iv) the costs of any
Private Improvements made by such Mortgagee; and (v) an amount equivalent to the
interest that would have accrued on the aggregate of such amounts had all such
amounts become part of the mortgage debt and such debt had continued in
existence, provided, notwithstanding any contrary provision of this sentence,
the Agency shall exercise its option to receive conveyance under the provisions
of this sentence by notice given to the Mortgagee not later than (a) ten (10)
days following the date of the foreclosure sale conducted by the Mortgagee, or
(b) the expiration of a period of thirty (30) days following the date on which
the Agency is notified of the conveyance of the Building Site by the Mortgagee
to any successor, in lieu of a foreclosure sale. The closing of the conveyance
pursuant to any such notice given by the Agency shall occur within ninety (90)
days following the delivery of such notice.
Section 13.6 Other Provisions. If as an inducement to provide any mortgage
financing contemplated in this Article XIII, any prospective Mortgagee requests
that the Agency agree to additional provisions intended to protect such
prospective Mortgagee's interest, the Agency shall not unreasonably withhold or
delay its agreement to such provisions, provided that the same are consistent
with the intent and purposes of this Agreement as well as any other conditions
attached to any other governmental approvals.
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Section 13.7 "Mortgagee" shall mean any Institutional Lender that holds a
mortgage authorized by this Agreement on the Building Site (an "Authorized
Mortgage"), and shall include also an insurer or guarantor (other than the
Developer or an Affiliate thereof) of any obligations secured by an Authorized
Mortgage held by an Institutional Lender, or an entity which acquires title
thereto through foreclosure or action in lieu thereof, including any other party
who thereafter obtains title to the Building Site or any part thereof through
such entity or through the Developer at a foreclosure sale or any other grantee
under a deed in lieu of foreclosure.
ARTICLE XIV. PERMITTED EXCEPTIONS, OBJECTIONS TO TITLE
Section 14.1 Permitted Exceptions. Except as provided herein below, the Building
Site shall be subject at the time of the Closing only to the matters (the
"Permitted Exceptions") set forth below:
(a) Such controls and restrictions, including land use restrictions, as are set
forth in the Urban Renewal Plan and in this Agreement, it being agreed that
such controls and restrictions shall survive the closing and shall be
incorporated in the Deed.
(b) The provisions of the Zoning Ordinance and any and all other provisions of
municipal ordinances, regulations and public laws, provided that such
ordinances, regulations and public laws do not prevent the use of the
Building Site as set forth in the Deed.
(c) Rights of the public for pedestrian passage between the Garage and Main
Street, as set forth in the Deed.
(d) Licenses and easements for public utilities and the rights of any utility
company to maintain and operate lines, conduits, cables and distribution
boxes in, upon or over the Building Site, provided that the same do not
prevent the construction of the Private Improvements in accordance with the
Building Construction Plans.
(e) Any state of facts or conditions revealed by the survey dated
________________, prepared by Xxxxx Engineering, P.C. (the "Building Site
Survey").
Section 14.2 Title Report. The Developer has obtained a title report for the
Building Site and has arranged for copies of the title report to be delivered to
the Agency. Encumbrances and other matters affecting title set forth in this
title report, which the Title Company shall omit as exceptions or with respect
to which the Title Company shall agree to insure the Developer against loss,
shall constitute Permitted Exceptions for the purposes of this Agreement. In the
event that any update of such title report or of the Building Site Survey is
received after the date hereof, the Developer agrees that within thirty (30)
days after it receives such updated title report, it will furnish the Agency's
attorneys with a specific list in writing of any exceptions to title set forth
in the updated title report and which are additional exceptions to title not
included in the Permitted Exceptions which the Developer believes it is not
required to take subject to (but failure to deliver such list will not be deemed
a default on the part of the Developer). All title and survey objections, of
which the Developer shall have given the Agency proper notice, with respect to
the Building Site pursuant to the foregoing provisions of this Article, which
would render the title to all or any portion of such Building Site unmarketable,
and which are not included in the Permitted Exceptions, are sometimes
hereinafter referred to, collectively, as "Title Objections". Any matters
affecting title not included in a notice delivered to the Agency within the
applicable time period set forth above shall be deemed accepted by the
Developer, and the right to object thereto, as provided in this Article, shall
be deemed to have been waived. For the purposes of this Article XIV, Purchaser's
title company shall be First American Title Insurance Company or any other title
insurance company licensed in the State of New York.
Section 14.3 Clearing of Title Objections. If the Developer's notice(s) to the
Agency given pursuant to Section 14.2 above shall indicate the existence of any
Title Objections, then the Agency agrees to endeavor with reasonable diligence
- EX-10.32 Page 32 -
to remove or discharge such Title Objections. Without limiting the foregoing,
the Agency shall remove all Title Objections which are capable of being removed
by the payment of a liquidated sum. If the Agency shall have been notified that
a title report or survey contains title exceptions which the Developer believes
it is not required to take the Building Site subject to, and if the Agency shall
be unable to deliver to the Developer such clear title to the Building Site in
accordance with the provisions of this Agreement on the Closing Date determined
under Section 4.2 of this Agreement, the Agency shall be entitled to one or more
adjournments of the Closing to a date not later than the Final Date. The Agency
shall have the right (but shall not be obligated) to use any and all monies
payable to the Agency by the Developer at the Closing to satisfy or cause the
removal of any liens or encumbrances (including interest and penalties thereon)
affecting the Building Site, together with the cost of recording or filing any
instruments necessary to effect such removal or discharge. Upon request by the
Agency at least ten (10) days prior to the Closing, the Developer shall provide
at the Closing separate checks for the foregoing payable to the holder(s) of the
lien(s) or encumbrance(s) or to the Developer's title insurer, as the Agency
directs.
ARTICLE XV. ACCESS TO BUILDING SITE BEFORE CLOSING
Section 15.1 Right of Entry. The Agency hereby grants the Developer, its
Affiliates, Contractors, architects, agents and prospective mortgagees, the
right to enter the Building Site together with workers and materials at any time
for the following purposes provided such entry does not unreasonably interfere
with existing uses of such Building Site and with prior notice to the Agency:
(a) To make physical inspections of the Building Site, including subsurface
tests, soil test borings, water survey, topographical surveys, sewage
disposal survey and drainage determination;
(b) To make any and all inspections, tests, surveys and appraisals; and
(c) To conduct and to carry out any and all engineering studies and operations
that are necessary to carry out the intent of this Agreement.
Section 15.2 Indemnification. The Developer shall indemnify, defend and save the
Agency and the City, their respective employees, agents and representatives,
harmless from any and all loss, costs, damages, expenses and attorneys' fees
resulting from personal injury or property damage which the Agency, the City or
any third party may suffer or incur as a result of any entry or activities of
the Developer, its affiliates, contractors, architects, agents and prospective
mortgagees pursuant to this Article.
ARTICLE XVI. MISCELLANEOUS
Section 16.1 Discharge of Liens.
(a) Subject to the provisions of the last sentence of Paragraph (b) of this
Section 16.1, neither the Developer nor the Agency nor the City shall
create or permit to be created or allow to continue any lien, encumbrance
or charge upon the Building Site or any part thereof, nor suffer any other
matter or thing whereby the estate, right and interest of the Developer or
the Agency, as the case may be, in the Building Site or any part thereof
might be impaired.
(b) If any lien at any time shall be filed in violation of the obligation of
the Developer or the Agency, as the case may be, pursuant to Paragraph (a)
hereof, then within ninety (90) days after notice of the filing thereof,
that party shall cause the same to be discharged of record by payment,
deposit, bond, order of a court of competent jurisdiction or otherwise. If
such party shall fail to cause such lien to be discharged of record within
the period aforesaid, and if such lien shall continue for an additional
thirty (30) days after notice by the Developer or the Agency, as the case
may be, to the party so failing, then, in addition to any other right or
remedy, the party giving such notice may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be due or by
- EX-10.32 Page 33 -
procuring the discharge of such lien by deposit or by bonding proceedings,
and in any such event, the Developer or the Agency, as the case may be,
shall be entitled, if such party so elects, to compel the prosecution of an
action for the foreclosure of such lien by the lienor and to pay the amount
of judgment in favor of the lienor with interest, cost and allowances. Any
amount so paid by the Developer or the Agency, as the case may be,
including all reasonable costs and expenses incurred by it in connection
therewith, including reasonable attorneys' fees, together with interest
thereon at the maximum legal rate permitted by State law, from the
respective dates of the making of such payment or incurring of such costs
and expenses, shall be paid within ten (10) days after demand by the party
that was responsible for causing the lien to be discharged but failed to do
so. Notwithstanding the provisions of this Paragraph (b), neither the
Developer nor the Agency shall be required to discharge any such lien if it
is in good faith contesting the same and has furnished a cash deposit or a
surety bond or other security reasonably satisfactory to the other in an
amount sufficient to pay such lien with interest and penalties.
Section 16.2 Conflict of Interest. No member, official or employee of the Agency
or the City shall have any personal interest, direct or indirect, in this
Agreement, nor shall any such member, official, or employee participate in any
decision relating to this Agreement which affects his personal interests or the
interests of any corporation, partnership or other entity in which he is,
directly or indirectly, interested.
Section 16.3 Indemnification.
(a) The Developer shall indemnify, defend and hold the Agency and the City, and
their respective agents, representatives, officers and employees harmless
from any and all liabilities, losses, damages, penalties, judgments,
awards, claims, demands, costs, expenses, actions, lawsuits or other
proceedings arising, directly or indirectly, in whole or in part, out of
the negligence or willful act or omission of the Developer, any
Contractors, and subcontractors performing the Private Construction Work,
or their respective agents, officers or employees in connection with this
Agreement, or any occurrence arising in connection with the design and
construction of the Private Improvements, under this Agreement, unless
caused by the negligence or willful act or omission of the Agency or the
City or their respective representatives, officers and employees.
(b) The Agency shall indemnify, defend and hold the Developer and its agents,
representatives, officers, managers, members, partners and employees
harmless from any and all liabilities, losses, damages, penalties,
judgments, awards, claims, demands, costs, expenses, actions, lawsuits or
other proceedings arising, directly or indirectly, in whole or in part, out
of the negligence or willful act or omission of the Agency or the City or
their respective contractors, agents, officers or employees in connection
with this Agreement, or any occurrence arising in connection with the
design or construction of the Garage or preliminary Agency work under this
Agreement, unless caused by the negligence or willful act or omission of
the Developer or their respective representatives, officers and employees.
Section 16.4 Assignment by the Agency. The Agency shall not assign this
Agreement or any right, title or interest hereunder. The Agency may at any time
by written instrument delegate to the City or any City agency, any or all of the
Agency's rights, title and interests or obligations under this Agreement
provided that the Agency shall not thereby be released from its unperformed
obligations hereunder. All references to the Agency in this Agreement shall be
deemed to include, respectively, any delegate of the Agency.
Section 16.5 [Reserved]
Section 16.6 [Reserved]
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Section 16.7 Consents and Approvals. All consents and approvals which may be
given under this Agreement shall, as a condition of their effectiveness, be in
writing. The granting of any consent or approval by a party to perform any act
requiring consent or approval under the terms of this Agreement or the failure
on the part of a party to object to any such action taken without the required
consent or approval shall not be deemed a waiver by the party whose consent was
required of its right to require such consent or approval for any further
similar act.
Section 16.8 Agency's Project Representative. The Agency hereby appoints J.
Xxxxxxx Xxxxxxxxx as its project representative who will be responsible for
coordinating the Agency's activities hereunder, with the Developer, all
architects, Contractors and Governmental Authorities. The Agency will notify the
Developer prior to appointing any substitute representative.
Section 16.9 Exclusive Negotiations. So long as this Agreement shall not have
been terminated, the Agency shall not designate any person, firm or entity other
than the Developer as a qualified and eligible sponsor for the redevelopment of
the Building Site.
Section 16.10 No Broker. The Developer and the Agency each represent and warrant
that no broker to whom a commission, fee or other compensation is payable is or
has been involved in or brought about the transactions contemplated by this
Agreement. Each of said parties shall indemnify and hold the others harmless
from any and all claims, obligations, liabilities, costs or expense (including
reasonable attorneys' fees) incurred as a result of any claim for brokerage
commissions, fees or other compensation by any person or entity which alleges
having acted or dealt with the indemnifying party in connection with the
Building Site or the transactions contemplated by this Agreement. The parties'
obligations under this Section shall survive the Closing and any termination of
this Agreement.
Section 16.11 Recording. Except as provided below, no party shall cause this
Agreement or a memorandum hereof to be recorded without the prior written
consent of the other.
Section 16.12 Relationship of Parties. This Agreement is not be construed to
create a partnership or joint venture between any or all of the parties hereto.
Section 16.13 All Notices, Communications, Etc. in Writing. Whenever it is
provided herein that notice, demand, request, consent, approval or other
communication (a "Notice") shall or may be given to, or served upon, any of the
parties by any other(s), or whenever any of the parties desires to give or serve
upon the other(s) any Notice, each such Notice shall be in writing and shall be
effective for any purpose only if given or served by personal delivery, with
acknowledgment of receipt or by certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to the Agency:
Yonkers Community Development Agency
00 Xxxxxxxxx Xxxxxx - xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxxxx
With copies to:
Xxxxxxx Xxxxxx, Esq.
Corporation Counsel
Xxxx Xxxx - Xxxxx
Xxxxxxx, Xxx Xxxx 00000
- EX-10.32 Page 35 -
If to the Developer:
Homes for America Holdings, Inc.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxxXxxxxxx, President
With a copy to:
XxxXxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxx & Xxxxxxxxxx, LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxxXxxxx, Esq.
Any party may by Notice to the others change the address to which Notices to
such party shall thereafter be given.
Section 16.14 Negotiated Document. The parties acknowledge that the provisions
and language of this Agreement have been negotiated, and agree that no provision
of this Agreement shall be construed against any party by reason of such party
having drafted such provision of this Agreement.
Section 16.16 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Section 16.16 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument, and any of the parties or
signatories hereto may execute this Agreement by signing any such counterpart.
Section 16.17 Captions. The captions of this Agreement are for the purpose of
convenience of reference only, and in no way define, limit or describe the scope
or intent of this Agreement or in any way affect this Agreement.
Section 16.18 Gender, Etc. As used in this Agreement, the masculine shall
include the feminine and neuter, the singular shall include the plural, and the
plural shall include the singular as the context may require.
Section 16.19 No Third Party Beneficiaries. Except as may be expressly provided
to the contrary in this Agreement, nothing contained in this Agreement shall be
construed to confer upon any person other than the parties hereto, any rights,
remedies, privileges, benefits or causes of action to any extent whatsoever.
Section 16.20 Successors and Assigns. The agreements, terms, covenants and
conditions of this Agreement shall be binding upon and inure to the benefit of
the Agency and the Developer and, except as otherwise provided herein, their
respective successors and permitted assigns.
Section 16.21 Further Assurances. Each party hereto shall do all acts and things
and make, execute and deliver such written instruments as shall from time to
time be reasonably required to carry out the terms and provisions of this
Agreement.
Section 16.22 No Amendment. Neither this Agreement nor any provisions hereof may
be changed, modified, amended, supplemented, altered, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against who enforcement of the change, modification, amendment, supplement,
alteration, waiver, discharge or termination is sought, and, if required by any
mortgage document, the applicable lender has consented thereto.
Section 16.23 Separability. Unenforceability for any reason of any provision of
this Agreement shall not limit or impair the operation or validity of any other
provision of this Agreement and if any term or provision of this Agreement or
the application thereof to any person or circumstance shall for any reason and
to any extent be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances to which
it is valid or enforceable, shall not be limited, impaired or otherwise affected
thereby, and each term and provision of this Agreement shall be valid and
enforced to the extent permitted by law.
- EX-10.32 Page 36 -
Section 16.24 Survival of Closing. The following provisions shall survive the
Closing hereunder: All articles except Article 4 will survive until the escrow
re`lease date.
Section 16.25 Entire Agreement. This Agreement, together with the Exhibits
hereto, contains all of the promises, agreements, conditions, inducements and
understandings between the Agency and the Developer concerning the Building
Site, Garage Site, Private Improvements or the Garage, and there are no
promises, agreements, conditions, inducements or understandings, oral or
written, expressed or implied, between them other than as expressly set forth
herein and therein.
Section 16.26 Effectiveness. This Agreement shall not be binding or effective
until executed and delivered by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
YONKERS COMMUNITY DEVELOPMENT AGENCY
/s/ Xxxx X. Xxxxxxx
By: --------------------------------
Xxxx X. Xxxxxxx, Chairman
HOMES FOR AMERICA HOLDINGS, INC.
/s/ Xxxxxx X. XxxXxxxxxx
By: ---------------------------------
Xxxxxx X. XxxXxxxxxx, President
- EX-10.32 Page 37 -
