CONTRACT OF SALE (Frederick, Maryland)
Exhibit 10.15
(Frederick,
Maryland)
THIS
CONTRACT OF SALE (this "Contract") is entered into as of the
20th day of July, 2016, by and between SeD Maryland Development,
LLC, a Delaware limited liability company qualified to conduct and
transact business in the State of Maryland ("Seller"), and ORCHARD DEVELOPMENT
CORPORATION, a Maryland corporation, or its permitted assignee as
provided for herein ("Buyer").
RECITALS:
R-1.
Seller is the owner of certain real property cons1stmg of
approximately 13 acres of land, located in Frederick, Maryland
generally described and identified on the attached Illustrative
Aerial Plan for the Xxxxxxxxx Run PUD as "Future Multifamily", as
EXHIBIT A attached hereto
(the "Property"), together
with all rights, easements and appurtenances pertaining thereto,
trees, bushes, landscaping and foliage thereon, free and clear of
any existing improvements except as otherwise shown on EXHIBIT
A (i.e., storm
water management facilities and portion of hiker/biker trail shown
thereon), and to be delivered at Closing with the following
utilities stubbed to the Property lines: sewer, water, stormdrain,
electric and cable. Verizon service will not be provided by
Seller.
R-2.
Seller desires to sell and Buyer desires to purchase, upon the
terms and conditions hereinafter set forth, the Property, intended
to be developed by Buyer with approximately Two Hundred and Ten
(210) multi-family residential dwelling units, in accordance with
the terms and conditions of this Contract.
NOW,
THEREFORE, in consideration of the mutual covenants of Seller and
Buyer and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which the parties hereby mutually
acknowledge, Seller and Buyer hereby agree as follows:
1.
Agreement to Sell and
Purchase. Buyer agrees to buy from Seller and Seller agrees
to sell and convey to Buyer, in fee simple, under the terms and
conditions hereinafter set forth, the Property.
2.
Deposit.
A. Posting
of Deposit. Not later than the Effective Date (as defined
below in the last paragraph of this Contract), Buyer shall deliver
to Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxx &
Xxxxxx, LLP, as Escrow Agent ("Escrow Agent"), in cash or
immediately available funds, a deposit in the amount of One Hundred
Thousand Dollars ($100,000.00) (the "Initial Deposit"). In the event that
Buyer fails to terminate this Contract prior to the expiration of
Feasibility Study Period, as defined in Para. 4, Buyer shall,
within two (2) business days following the expiration of the
Feasibility Study Period deposit an additional One Hundred Fifty
Thousand and No/100 Dollars ($150,000 .00) with the Escrow Agent as
an additional Deposit (the "Additional Deposit"). The Initial
Deposit and the First Additional Deposit, and all subsequent
deposits, if any shall collectively be referred to as the Deposit
("Deposit"). The Deposit shall be held by Escrow Agent in a
federally insured, interest-bearing account in a national bank or
savings and loan institution reasonably acceptable to Buyer and
Seller (and any interest and other amounts accruing
on the
Deposit shall be deemed part of the Deposit for all purposes
hereunder) and disbursed in accordance with the provisions of this
Contract.
B.
Termination. If, prior to the end of the Feasibility
Study Period, Buyer, in its sole discretion as described in Para.4,
elects to terminate the Agreement by written notice described
therein, Escrow Agent shall promptly return the full Deposit to the
Buyer and neither party shall have any further obligation to the
other party.
C. Deposit
Non-Refundable after Feasibility Study Period. Following the
expiration of the Feasibility Study Period, the Deposit shall be
non-refundable to Buyer except in the event of termination of this
Contract as a result of an uncured default by Seller, or as
otherwise provided for herein.
D. Dispute
as to Deposit. In the event of any dispute between Seller
and Buyer with respect to the Deposit, Escrow Agent, Buyer and
Seller agree to the terms and conditions of the Escrow Agreement
("Escrow Agreement") as shown in EXHIBIT
B. Seller
and Buyer each acknowledge that Escrow Agent shall have no
liability to either or to any other party on account of Escrow
Agent's disbursement of the Deposit or failure to disburse the
Deposit if a dispute shall have arisen with respect to the Deposit,
and each agrees to indemnify Escrow Agent against any loss, damage
or liability (including specifically attorneys' fees and litigation
expenses) arising from Escrow Agent's role as escrow agent
hereunder except in the event of Escrow Agent's negligence or
willful misconduct.
3.
Purchase
Price and Intended Use. The purchase price for the Property
is Five Million Two Hundred Fifty Thousand Dollars ($5,250,000)
(the "Purchase Price"). Buyer shall pay fully all of the costs of
obtaining all state, local and federal approvals applicable
exclusively to the Property.
4.
Feasibility Tests and Studies;
Access.
A. Beginning
on the Effective Date and continuing until 5:00 p.m. EST on the One
Hundred Twentieth (1201h) calendar
day thereafter (the "Feasibility Study Period) Buyer shall have the
right, at its own expense, to go upon the Property to complete all
necessary due diligence efforts, including but not limited to:
completion of a Phase I Environmental Survey and Engineering
Survey; appraisal report; property inspections; title report;
initiation of financing process, and; initiate preliminary design
and investigate final site engineering and site plan approval
issues, and to cause boring tests and architectural, engineering,
subdivision, access and other tests and studies, including market
analyses and development and economic feasibility studies, to be
made upon any portion of the Property. In the event that one or
more of the investigations conducted by Buyer during the
Feasibility Study Period is unsatisfactory to Buyer, as determined
by Buyer in its sole discretion, Buyer shall have the right, by
written notice sent to Seller and Escrow Agent prior to the
expiration of the Feasibility Study Period, to terminate this
Contract, in which event the Deposit shall promptly be returned to
Buyer by Escrow Agent and upon written notice to all parties shall
thereupon be relieved of further liability and obligations
hereunder, except that Buyer agrees to (i) indemnify and save
harmless Seller from any costs (including reasonable attorney's
fees), expenses, loss or liability arising out of any study or
analysis, whether on-site or off-site, performed by or at the
request of Buyer, and (ii) repair any damage caused by
any such study or analysis and restore the Property, as near as
reasonably practical, to its condition before such study or
analysis.
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B. Seller
shall grant Buyer and Buyer's employees, agents, representatives
and consultants the right to enter upon the Property at any time
before Closing hereunder for purposes of surveying, engineering,
testing and all other work which Buyer may deem necessary, provided
Buyer (i) shall not materially alter the present condition of the
Property and shall repair any damage caused by any such entry and
restore the Property, as near as reasonably practical, to its
condition before such entry, and (ii) shall indemnify and save
harmless Seller from any costs (including reasonable attorney's
fees), expenses, loss or liability arising out of any such entry.
Seller shall allow reasonable access to the Property through the
date of Settlement subject to the rights of existing tenants if
applicable. Seller shall further allow Buyer to inspect and review
the Xxxxxxxxx Run Development Rights and Responsibilities
Agreement ("DRRA")
as well as any tax bills, title
policies, leases, contracts, service agreements, insurance loss
history, environmental or engineering surveys and certifications,
building plans specifications, surveys & plats, site plans, licenses & permits, code violations or other material
pertaining to the ownership of the Property (a complete checklist
will be included as an addendum to this Contract as
EXHIBIT C) which are in Sellers' possession and readily
accessible. Buyer acknowledges and agrees that it will be
responsible for ongoing repair and maintenance of the storm water
management facilities to be located on the Property (to be
constructed by Seller) and that it shall grant the Seller and/or a
future homeowners association an easement to construct and maintain
(at no expense to Buyer) the hiker/biker trail to be located on the
Property as shown on EXHIBIT
A.
C. Upon
the Effective Date, Buyer shall have in place a comprehensive
general liability insurance policy insuring that Buyer's and
Buyer's employees, agents, representatives and consultants
activities hereunder at the Property are covered under said policy
with a combined single limit of no less than One Million Dollars
($1,000,000.00) and naming the Seller as an additional insured.
Buyer will deliver a certificate of insurance to Seller evidencing
this coverage prior to entry onto the Property.
D. The
repair and indemnification provisions of this Section 4 shall
survive any termination of this Contract.
E. If
this Contract is terminated or expires for any reason other than
consummation of Closing, then, within fifteen (15) days after such
termination or expiration Buyer shall deliver or cause to be
delivered to Seller (at no cost to Seller), if available and,
except with respect to architectural and engineering, owned by
Buyer, all drawings, plats, surveys, tests, reports, investigations
and studies and all plans, specifications, architectural and
engineering work product, and governmental applications and
approvals prepared by third parties in connection with the Property
(each a "Study" and
collectively "Studies") prepared by
or for Buyer in connection with this Contract or Buyer's intended
acquisition, ownership or development of the Property, but
excluding: any Studies that involve analyses regarding the
financial viability of Buyer's intended use of the Property;
anything that would require the Buyer to incur additional costs
beyond those already committed; or any information, data, reports
or studies that the Buyer, in its sole discretion, considers
proprietary. The Studies are delivered without any representation
or warranty by Buyer as to the validity or correctness of any of
the Studies. This Section 4.E shall survive termination of this
Contract.
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F. It
is the Buyer's intent to include 107 LIHTC units as part of the 210
total units in order to meet Xxxxxxxxx County, Maryland's
Moderately Priced Dwelling Units ("MPDUs") requirement
for the Xxxxxxxxx Run project. In order to accomplish this, the
Seller must obtain the approval from Xxxxxxxxx County (the
"County") to amend the DRRA to allow Low Income Housing Tax Credits
("LIHTC")
units to satisfy this requirement. Further, Buyer's project
requires the County's participation in development incentive
programs for affordable housing in order to accomplish this. The
DRRA amendment and a commitment, in form and substance reasonably
acceptable to Buyer, of the cooperation of the County such the
development incentives must be accomplished by the Seller prior to
the end of the Feasibility Study Period. In the event the Seller
has not obtained the approval by the County to amend the DRRA as
provided for in in this Paragraph 4.F., by the end of the
Feasibility Study Period, Seller and Buyer shall mutually determine
whether to extend the Feasibility Study Period. Failure by the
Seller to have amended the DRRA prior to completion of the
Feasibility Study Period shall not be deemed a default by Seller of
this Contract, but Buyer shall be permitted to terminate the
Contract pursuant to Paragraph 4.A. if the parties cannot agree to
extend the Feasibility Study Period, and the Deposit shall be
promptly returned to the Buyer. Notwithstanding the aforegoing,
once Seller has amended the DRRA as provided in this Paragraph
4.F., it shall be a default by Buyer under this Contract to not
construct the MPDUs as provided herein; this provision of the
Contract shall survive Closing and shall not merge with the deed of
conveyance. In order to satisfy this requirement of Buyer, Buyer
shall be required to record the LIHTC covenants required under
§l -6A-5.2(B) and (C) of the Xxxxxxxxx County Code prior to
Closing, which shall run with and bind the Property.
G. During
the Feasibility Study Period, Buyer shall provide Seller with
initial architectural drawings for the intended multi-family
project. Seller shall have ten (10) business days to review and
approve these drawings, such approval not to be unreasonably
withheld, conditioned or delayed. Failure by the Seller to respond
within this period shall be deemed approval. Any further revisions
to said drawings prior to Closing other than non-material red-line
changes which do not change the layout or unit mix of the buildings
or materially alter the road circulation or amenities on the
Property as approved by the Seller shall require Seller's further
review and approval in accordance with this Paragraph 4.G., such
approval again shall not to be unreasonably withheld, conditioned
or delayed.
5.
Title.
A. .Buyer
shall order, at Buyer's expense, from a reputable title insurance
company of Buyer's choice (the "Title Company")
a report on title (the
"Title
Report") for the Property and
a survey (the "Survey") of the Property, which Survey shall reflect
the actual dimensions of, and the gross area within, the Property,
the location of any easements, rights-of- way, setback lines,
encroachments, or overlaps thereon or thereover, and the outside
boundary lines of any improvements. Not later than fifteen days
prior to the expiration of the Feasibility Study Period, Buyer
shall give notice to Seller of any objections to or defects of
title disclosed by the Title Report or Survey. If such notice is
not given, Buyer shall be deemed to accept title to the Property in
its condition existing as of the Effective Date. Within ten ( 10)
days after receiving notification of any objectionable title items
from Buyer, Seller shall give notice to Buyer as to whether Seller
shall cure or cause the cure of such objections to title. In the
event that Seller elects to remove or cause the removal of such
noted exceptions, Seller shall exercise diligent, good faith
efforts to do so. If such notice is not given or in the event that
Seller declines to cure or cause the cure of all items or if Seller
(despite Seller's diligent, good faith efforts) is unable within
the permitted time period to
cure all items Seller has elected to cure, then Buyer shall have
the option, to be exercised by written notice to Seller within five
(5) days after receipt of Seller's notice of Seller's unwillingness
or inability to cure the objectionable title items or the date
Seller was to have provided notice to Buyer as provided for herein,
to (i) accept title as shown by the Title Report and proceed to
Closing hereunder, OR (ii) terminate this Contract by giving notice
of Buyer's intention to terminate, in which event the Deposit shall
be returned to Buyer, and thereafter neither party shall have any
further liability hereunder except for those obligations which
specifically survive such termination. If Buyer fails to make an
election within such five (5)
day period, then Buyer shall be deemed to have elected item
(ii).
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B. Fee
simple title to the Property is to be conveyed at the time of
Closing to Buyer or its designees, subject to any liens,
encumbrances, judgments, tenancies, covenants, restrictions,
easements and rights-of-way, recorded or unrecorded, or such other
items that Buyer has accepted as title defects or are expressly
permitted by this Contract (the "Permitted
Exceptions") except for those items that Seller is required
to or has agreed to cure. Title is to be marketable, good of record
and in fact, and insurable at regular rates by the Title Company,
subject only to the Permitted Exceptions.
C.
During the term of this Contract, Seller shall not execute nor
approve the execution of any easements, covenants, conditions or
restrictions with respect to the Property except as expressly
permitted by the terms of this Contract or, if not expressly
permitted, without first obtaining the written approval of Buyer,
which approval shall not be unreasonably withheld, conditioned nor
delayed.
6. Representations
and Warranties of Seller. Seller hereby represents and
warrants that each of the following is true and correct on the
Effective Date and shall be true and correct in all material
respects on, and restated as of, the date of Closing:
A. Seller
is a limited liability company, duly organized and validly existing
and in good standing under the laws of the State of Delaware and
qualified to conduct and transact business in the State of
Maryland, (ii) has the full and unrestricted power and authority to
execute and deliver this Contract and all other documents required
or contemplated by the terms of this Contract (collectively, the
"Seller
Documents") and to consummate the transactions contemplated
herein, and (iii) has taken all requisite company action required
to authorize the execution and delivery of the Seller
Documents.
B. The
execution and delivery of the Seller Documents by Seller and
compliance with the provisions of such documents by Seller will not
violate the provisions of the constitutive documents of Seller or
any other such similar document or rule regarding Seller or any
agreement to which Seller is bound.
C. The
execution, delivery and performance of the Seller Documents by
Seller will not violate any provision of any applicable statute,
regulation, rule, court order or judgment or other legal
requirements applicable to Seller.
D. To
the best of Seller's knowledge, there are no lawsuits or legal
proceedings pending or threatened regarding or resulting from
encumbrances on, or the ownership, use or possession of, the
Property.
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E. To
the best of Seller's knowledge, there are no notices, suits or
judgments pending or threatened relating to violations of any
governmental regulations, ordinances or requirements affecting or
which may affect the Property. In the event Seller receives such a
notice of violation, Seller shall immediately take all actions
reasonably required to comply with the terms thereof, and the
Property shall be free and clear of all such violations prior to
Closing.
F. Except
for this Contract, Seller has not entered into any contracts of
sale, options to purchase, reversionary rights, rights of first
refusal or similar rights of any kind which are or shall be binding
upon the Property or any part thereof or which shall become binding
upon Buyer upon Closing.
G. Except
as otherwise disclosed in EXHIBIT C to this
Contract, Seller has not made and has no knowledge of (and to
Seller's knowledge, Seller's predecessors in title have not made
and have no knowledge of) any commitments to any governmental or
quasi-governmental authority, school board, church or other
religious body, or to any other organization, group or individual
relating to the Property which would impose any obligations upon
Buyer to make any contributions of money or land or to install or
maintain any improvements, or which would interfere with Buyer's
ability to use, develop or improve the Property as herein
contemplated (including any agreements or understandings to annex
the Property or any portion thereof to any homeowners' association
governing any project or subdivision adjacent to or in the vicinity
of the Property), and there are no special understandings or
agreements, whether oral or written, between Seller and any
jurisdictional authority whether contained in ordinances,
agreements or otherwise, limiting or defining the use and
development of the Property, the construction of improvements
thereon, the availability to the Property of public improvements
and municipal services, any requirement to share in the cost
thereof by recapture, contribution, special assessment or
otherwise, or any requirement to contribute in land or cash to any
school, library, park or other sort of county, municipal or
governmental district or body in connection with the development of
the Property. Buyer shall be responsible for any "proffers" to be
paid to the County with respect solely to the Property, including
but not limited to payment of County Impact Fees and School
Construction Fees for all approved Units, construction of public
and/or private roads within the Property, and installation of all
utilities within the Property ..
H. To
the best of Seller's knowledge, there is no actual, pending or
threatened designation of any portion of the Property or
improvements thereon, as a historic landmark or archeological
district, site or structure. To the best of Seller's knowledge,
there is no graveyard lying within the Property. Notwithstanding
the aforegoing to the contrary, within the Xxxxxxxxx Run PUD there
are improvements which the Maryland Historical Trust ("MHT") has
investigated for historic status. Any such improvements located on
the Property will be removed by Seller in accordance with MHT
requirements prior to Closing. Seller shall notify Buyer
immediately in the event such MHT requirements change. In the event
Seller cannot satisfy or reasonably anticipates not being able to
satisfy any such changed MHT requirements which affect the Property
by Closing, Seller shall notify Buyer within sixty (60) days prior
to the expiration of the Site Plan Approval Period. Buyer may elect
to extend Closing by written notice to the Seller for an additional
period of time to allow Seller time to comply with MHT requirements
applicable to the Property. Such extension shall only be for such
amount of time as is necessary for Seller to comply with MHT
requirements, not to exceed one (1) year.
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I. Except
as otherwise set forth in environmental studies previously
performed on behalf of Seller, by GTA dated June, 2014 copies of
which have been provided to Buyer, and including any remediation
efforts performed by Seller in accordance with such reports,
including the removal of underground storage tanks on the Property,
for which the Maryland Department of the Environment has issued a
closure report, all which have been performed in order to remove
any Contamination as required by any state, local or federal agency
having jurisdiction thereunder, to the best of Seller's knowledge,
the Property, including the land, surface water, ground water and
any improvements, is free of "contamination" from (i) any
"hazardous waste," any "hazardous substance," and any "oil,
petroleum products, and their by-products," as such terms are
defined by any federal, state, county or local law, ordinance,
regulation or requirement applicable to any portion of the
Property, as the same may be amended from time to time, and
including any regulations promulgated thereunder, and (ii) any
substance the presence of which on the Property is regulated or
prohibited by any law (collectively, "Hazardous
Substances"). "Contamination" means the presence of
Hazardous Substances at the Property or arising from the Property
that may require remediation or cleanup under any applicable law.
Seller has not used any Hazardous Substances on, from or affecting
the Property in any manner that violates any applicable law, and to
Seller's knowledge, no prior owner or user of the Property has used
such substances on, from or affecting the Property in any manner
which violates any applicable law. To Seller's knowledge, there are
not now, nor have there ever been on or in the Property underground
storage tanks or surface impoundments, asbestos-containing
materials or any material spills of polychlorinated biphenyls,
including those used in hydraulic oils, electric transformers or
other equipment, except as may be disclosed in the Environmental
Reports. Without limiting in any respect the generality of the
foregoing, to Seller's knowledge, there are no actual, alleged or
perceived health issues applicable to any portion of the Property.
To the best of Seller's knowledge, without independent
investigation, no landfill has occurred on the Property, and no
debris has been buried or placed on the Property.
J. Seller
will make available at Seller's offices (or Seller's engineer's
offices) all documents relating to or affecting the Property in
Seller's possession or available to Seller and required by this
Contract (including, but not limited to, all plats, plans, and
wetlands reports and permits).
K. All
bills and claims for labor performed and materials furnished to or
for the benefit of the Property by or on behalf of Seller for all
periods prior to Closing have been paid in full or adjustment
therefor shall be made at Closing on the settlement
sheet.
L.
Seller is not a "foreign person" as defined in the Internal Revenue
Code of 1986, and the regulations issued pursuant thereto, and
Seller shall deliver to Buyer at Closing an affidavit to such
effect containing Seller's taxpayer identification
number.
M. No
insolvency proceeding or petition in bankruptcy or for the
appointment of a receiver has been filed by or against Seller,
Seller has not made an assignment for the benefit of creditors or
filed a petition for, or entered into an arrangement with,
creditors, and Seller has not failed generally to pay its debts as
they become due.
N. There
are no leases or occupancy agreements currently affecting any
portion of the Property. Buyer acknowledges and agrees that Seller
may enter into agreements with respect to the lease, license or
rental of the Property for surface parking provided that any such
agreement shall terminate not
later than Closing. Exclusive possession of the Property shall be
delivered by Seller to Buyer at Closing free of the rights or
claims of any tenants, occupants or other parties in possession of
or having or claiming any right to possession or use of the
Property under, by or through the rights of Seller whether such
rights or claims are through lease, easement, license or
otherwise.
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7,
Representations and
Warranties of Buyer. Buyer hereby represents and warrants as
follows, which representations and warranties shall be true and
correct as of the date of Closing:
A. Buyer
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland, and has the full
and unrestricted power and authority to execute and deliver this
Contract and all other documents required or contemplated by the
terms of this Contract (collectively, the "Buyer Documents") and
to consummate the transactions contemplated herein. Buyer has taken
all requisite corporate action required to authorize the
appropriate officer(s) of Buyer to execute and deliver the Buyer
Documents.
B. The
execution and delivery of the Buyer Documents by Buyer and
compliance with the provisions of such documents by Buyer will not
violate the provisions of the Articles of Incorporation, Bylaws or
any other such similar document or rule regarding Buyer, or any
agreement to which Buyer is subject or by which Buyer is
bound.
C. The
execution, delivery and performance of the Buyer Documents by Buyer
will not violate any provision of any applicable statute,
regulation, rule, court order or judgment or other legal
requirements applicable to Buyer.
D. No
insolvency proceeding or petition in bankruptcy or for the
appointment of a receiver has been filed by or against Buyer, Buyer
has not made an assignment for the benefit of creditors or filed a
petition for, or entered into an arrangement with, creditors, and
Buyer has not failed generally to pay its debts as they become
due.
8.
Conditions
Precedent.
A.
The obligation of Buyer to proceed with Closing is contingent upon
all of the following conditions being satisfied as of the date of
Closing:
(i) Seller's
representations and warranties in this Contract shall be true and
correct as of the date of Closing, and Seller shall execute a
certificate of reconfirmation of such representations and
warranties at Closing. Although certain of Seller's representations
and warranties are limited to the extent of Seller's knowledge,
this condition precedent is not so limited. Therefore, the
condition shall be deemed satisfied as the date of Closing if the
facts stated in all such representations and warranties are
accurate without reference to Seller's knowledge.
(ii)
The condition of title to the Property shall be as required by this
Contract.
(iii) Buyer
shall have received all Approvals (as defined in Section 9),
including Building Permits, and the approved record plat
subdividing the Property from the balance of the Seller's property,
and such approvals shall be final and all appeal periods in
connection therewith shall have expired, with no appeal having been
filed, or if an appeal is filed, same shall have been dismissed and
the approvals upheld.
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(iv) All
offsite (not located within the Project) easements necessary for
the development and use of the Property including, without
limitation, access and utility easements for water, sanitary sewer,
stormwater management and drainage, electric and cable shall have
been obtained and (except for storm water management and drainage)
all such utilities have been installed and stubbed at the property
line, and Seller has completed base course paving from existing
public roads to the Property along with any other required
improvements to allow Buyer to obtain Building Permits and to
provide full vehicular and pedestrian access to the Property from
such public roadways.
(v) No
lawsuit, appeal or other action shall have been filed by any party,
directly or indirectly, involving the Property or Buyer's
development of the Property as a multifamily apartment
complex.
(vi) There
shall exist no moratorium or other action or directive by any
governmental authority which would prohibit or enjoin Buyer from
constructing a multifamily apartment complex as contemplated
herein. If, from the date of
this Contract until the Closing, any state, county, city, public
school district or governmental agency declares or effects any
moratorium, which moratorium is applicable to the Property or any
portion thereof, then, in such event, Buyer's obligations under
this Contract and all time frames required under this Contract
shall be suspended until such time as the moratorium is lifted;
provided, however that if such moratorium lasts or is declared by
any such authority to last for a duration in excess of twelve (12)
months from the date of the onset of such moratorium, then Buyer
may, at its sole option by written notice to the Seller, declare
this Contract to be null and void, the Deposit shall be returned to
the Buyer, and the parties shall thereafter have no further
obligation to one another.
(vii) Any
other conditions precedent to Closing set forth in other provisions
of this Contract shall have been satisfied, and Seller shall not be
in default of any of Seller's obligations under this
Contract.
B.
Failure of any
Conditions Precedent:
(i) If,
after written notice to Seller and the expiration of any applicable
cure period, the conditions set forth in Section 8A except for 8A
(iii) or (iv) hereof are not met at the time of Closing, then Buyer
shall have the option, to be exercised in its sole discretion
either to (i) waive the requirement for satisfaction of the
unsatisfied conditions and proceed to Closing without reduction in
the Purchase Price, or (ii) declare this Contract terminated in its
entirety, in which event. the Deposit shall be released to and
retained by Buyer, and thereafter neither party shall have any
further liability hereunder, except for those obligations which
specifically survive such termination, or (iii) exercise its
remedies under Section 14 below in the event the failure of the
condition(s) precedent to be satisfied is due to Seller's default;
or
(ii) If,
after written notice to Seller and the expiration of any applicable
cure period, the conditions set forth in Section 8A(iii) hereof are
not met at the time of Closing, then Buyer shall have the option,
to be exercised in its sole discretion either to (i) waive the
requirement for satisfaction of the unsatisfied conditions and
proceed to Closing without reduction in the Purchase Price, or (ii)
declare this Contract terminated in its entirety, in which event.
the Deposit shall be released to Seller, and thereafter neither
party shall have any further liability hereunder, except for those
obligations which specifically survive such termination;
or
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(iii)
If, after
written notice to Seller and the expiration of any applicable cure
period, the conditions set forth in Section 8A(iv) hereof are not
met at the time of Closing, then Buyer shall have the option, to be
exercised in its sole discretion either to (i) waive the
requirement for satisfaction of the unsatisfied conditions and
proceed to Closing without reduction in the Purchase Price, (ii)
elect to extend Closing by written notice to the Seller for an
additional period of time to allow Seller time to comply with
Section 8A(iv) requirements, not to exceed one ( 1) year, or (iii)
declare this Contract terminated in its entirety, in which event.
the Deposit shall be released to Seller, and thereafter neither
party shall have any further liability hereunder, except for those
obligations which specifically survive such
termination.
C. The
obligation of Seller to proceed with Closing is contingent upon all
of the following conditions being satisfied as of the date of
Closing:
(i) The
representations and warranties of Buyer made in this Contract shall
be true and correct as of the date of Closing with the same force
and effect as though such representations and warranties had been
made on and as of such date.
(ii) Buyer
shall have performed in all material respects all covenants and
obligations and complied in all material respects with all
conditions required by this Contract to be performed or completed
with by it on or before the date of Closing, and Buyer shall have
executed and delivered to Seller a certificate, dated as of the
date of Closing, to the foregoing effect.
9. Development
and Permitting Approvals.
A. Site
Plan. Buyer shall submit upon the conclusion of the
Feasibility Study Period (and shall thereafter use reasonable
commercial efforts, proceeding diligently and in good faith to
obtain in as expeditious a manner as reasonably possible) its
application for Site Plan and subdivision plat approval for all
necessary municipal, state and federal approvals for the
construction of the multifamily apartment project on the Property
(collectively, "Site Plan Approval").
Buyer, proceeding diligently shall have one (1) year from the
expiration of the Feasibility Study Period to obtain Site Plan
Approval (the "Site Plan Approval
Period"). During the Site Plan Approval Period and prior to
any official submission of a Site Plan to the County, Buyer shall
provide Seller with an initial Site Plan for the intended
multi-family project. Seller shall have ten (10) business days to
review and approve the Site Plan, such approval not to be
unreasonably withheld, conditioned or delayed. Failure by the
Seller to respond within this period shall be deemed approval. Any
further revisions to said Site Plan prior to Closing other than
non material red-line changes which do not change the layout
or unit mix of the buildings or materially alter the road
circulation or amenities on the Property as approved by the Seller
shall require Seller's further review and approval in accordance
with this Paragraph 9.A., such approval again not to be
unreasonably withheld, conditioned or delayed.
B. Building
Permit. . Promptly upon Site
Plan Approval, Buyer shall pursue, at its sole cost and expense,
and take all actions required to be taken to obtain building
permits ("Building Permit
Approval"), to construct the
Buyer's proposed improvements to the Property. Not later than
thirty (30) days following the expiration of the Site Plan Approval
Period, Buyer shall obtain the Building Permits (the
"Building Permit Approval
Period").
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- 10 -
C. Extensions
to Site Plan Approval Period and/or Building Permit Approval
Period. If the
governing authorities having jurisdiction thereunder have not
granted all required approvals for the Buyer to construct its
multifamily project within the Site Plan Approval Period or the
Building Permit Approval Period, respectively, despite the
diligent, good faith, and commercially reasonable efforts of the
Buyer to obtain the required Site Plan Approval or the Building
Permit Approval, the Buyer may, upon written notice delivered to
the Seller before the expiration of the Site Plan Approval Period
or Building Permit Approval Period, extend the Site Plan Approval
Period or Building Permit Approval Period for up to a combined
extension period not to exceed ninety (90) days (the "90 Day Extension
Period"). The 90 Day Extension Period can be used to extend
either the Site Plan Approval Period or the Building Permit
Approval Period but in no event shall it exceed 90 days in total.
The Buyer can use the 90 Day Extension Period in 30 day increments,
and it can be divided between the Site Plan Approval Period and the
Building Permit Approval Period (i.e., by way of example, it can be
used for a 30 day extension to the Site Plan Approval Period and
for a 60 day extension to the Building Permit Approval Period) so
long as the combined extensions do not exceed 90 days in
total.
D. Cooperation
in Development of the Project. Buyer covenants to use
reasonable commercial efforts and due diligence and good faith in
pursuit of the Site Plan Approval, preparation and recordation of
the record plat subdividing the Property from the balance of the
Seller's property and obtaining the Building Permit Approval
(collectively, the "Approvals") during
the Site Plan Approval Period and agrees to keep Seller currently
apprised (but not less often than monthly) of its efforts in
respect of the Approvals. Buyer and Seller shall in all events
promptly advise the other party of any on-going communications with
governmental authorities, and each of Buyer and Seller agree to
provide the other party at least five (5) days prior notice of any
meetings with any neighborhood groups, civic associations,
governmental authorities or other "stakeholders" and afford the
other party the opportunity to attend all such meetings. Buyer
shall advise Seller of the matters discussed at any meetings with
neighborhood groups, civic associations, governmental authorities
or other "stakeholders" or other public hearings at which the
Property is discussed which Seller does not attend.
10.
Time of Closing.
A. Closing
(each a "Closing"), subject to
satisfaction or written waiver of all conditions precedent
contained herein, shall occur no later than twenty (20) days
following the completion of the Building Permit Approval Period;
provided however that in no event shall Closing occur later than
March 31, 2018 (the "Outside Closing Date").
B. Closing
shall be held at the offices of Escrow Agent or another title
company designated by Buyer, which offices shall be located in the
Baltimore/Washington, D.C., metropolitan area. Notwithstanding the
foregoing, however, the parties acknowledge that Closing may occur
through delivery of the Closing documents by reputable overnight
delivery and delivery of the payment by wire transfer or title
company check (at Seller's option) so that either or both parties
will not need to attend Closing. Buyer shall give Seller at least
five (5) business days' prior notice of the time and place of
Closing.
C. Any
general real estate taxes and rents and usual water and sewer
charges shall be pro-rated for the portion of the Property conveyed
at such Closing as of the date of Closing. Applicable special
assessments for public improvements that are substantially
completed prior to Closing
and any "roll-back" taxes applicable to the portion of the Property
conveyed at such Closing shall be paid by Seller. Transfer and
recordation taxes and any other recording charges shall be divided
equally between the parties, provided that the Buyer will pay any
recording tax attributable solely to any financing in excess of the
Purchase Price. Seller shall pay for the preparation of the deed
and the preparation of and the recording fees for the release of
any monetary encumbrances against the portion of the Property
conveyed at such Closing. Each party shall pay its own attorneys'
fees. Seller is aware that the Escrow Agent will be required to
collect from the proceeds of the sale a Maryland non-resident
withholding tax as prescribed by the Tax Property Article of
the Maryland Annotated Code unless it can provide the required
Certification as set forth in (E)(c), below.
- 11 -
D. At
Closing, Buyer shall pay the applicable portion of the Purchase
Price as adjusted in accordance with the provisions of this
Contract; and Buyer shall execute and deliver to Seller the
following:
(a) an
update of Buyer's representations executed by Buyer;
(b) evidence
of Buyer's (and its members) organizational authority, incumbency
and good standing as may be required by the Title Company;
and
(c)
such other instruments as Seller or Title Company may reasonably
desire in connection with or to consummate the transactions
contemplated by this Contract.
E.
At Closing, Seller shall deliver to Buyer the
following:
(a)
a F.l.R.P.T.A. affidavit;
(b)
an update of Seller's representations executed
by Seller;
(c) a
Certification of Exemption from Withholding Upon Disposition of
Maryland Real Estate executed by Seller if applicable;
(d)
an owner's affidavit in form reasonably required by the Title
Company;
(e) a
Gap Indemnity reasonably acceptable to Seller, if required by the
Title Company for payment of the Purchase Price to Seller prior to
recording.
(f) evidence
of Seller's (and its members) organizational authority, incumbency
and good standing as may be required by the Title
Company.
(g)
written instructions regarding delivery of the net proceeds to
Seller at Closing;
and
(h)
such other instruments as Seller or Title Company may reasonably
desire in connection with or to consummate the transact
contemplated by this Contract
11. Special
Warranty Deed; Delivery of Possession. At Closing, Seller shall
convey the Property to Buyer in fee simple by special warranty
deed, containing covenants against encumbrances and
with further assurances. Possession of the Property shall be
delivered to Buyer at the time of Closing, free and clear of any
licensees, occupants or tenants.
- 12 -
12. Risk
of Loss. Until execution, delivery and delivery of the deed
described in Section 10, the risk of loss or damage to the
Property, or any applicable portion thereof, by any cause, is
assumed by Seller.
13. Condemnation.
If, prior to
Closing, any material portion of the Property is condemned or taken
under the power of eminent domain (or is the subject of a pending
taking that has not yet been consummated), then Seller shall so
notify Buyer and Buyer shall have the right either to (i) terminate
this Contract, in which event the Deposit shall be returned to the
Buyer in accordance with Paragraph 2.C. of this Contract, and
thereafter neither party shall have any further liability hereunder
except for those obligations which specifically survive such
termination, or (ii) proceed to Closing hereunder, in which case
Seller shall pay over or assign, as applicable, at Closing all
awards and proceeds of such condemnation or taking with respect to
the Property, and there shall be no adjustment of the Purchase
Price. If, prior
to Closing hereunder, less than a material portion of the Property
is condemned or taken under the power of eminent domain (or is the
subject of a pending taking that has not yet been consummated),
then Buyer and Seller shall proceed to Closing hereunder and all
proceeds received by Seller with respect to such condemnation will
be credited against the Purchase Price (or applicable portion
thereof) at Closing and Seller shall assign shall assign, transfer,
and set over to Buyer at Closing all of Seller's rights, title and
interest in such condemnation proceeding with respect to the
Property and any awards that may be made with respect thereto. As
used in this Section 13, "material portion of the Property" shall
apply to a condemnation or taking resulting in the loss of more
than ten percent (10%) of the area of the Property.
14.
Default.
A. If
Buyer defaults under this Contract and Seller is not in default
under this Contract, has satisfied all of Seller's conditions
precedent under this Contract and is willing and able to proceed,
Seller shall be entitled to terminate this Contract, in which event
the Deposit shall be retained by Seller as liquidated damages and
as Seller's sole and exclusive remedy, and the parties hereto shall
thereafter have no further liability hereunder to each other
hereunder, except for those obligations which specifically survive
such termination.
B. If
Seller defaults hereunder and Buyer is not in default under this
Contract and is willing and able to proceed, then Buyer shall be
entitled, as its sole and exclusive remedy, to either: (i)
terminate this Contract, in which event the Deposit shall be
returned to Buyer, and thereafter neither party shall have any
further liability hereunder except for those obligations which
specifically survive such termination, or (ii) enforce all of the
terms of this Contract by specific performance.
C. Notwithstanding
the provisions of Sections 14A and 14B to the contrary, neither
party shall be considered in default under such sections unless
such party has received written notice of the claimed default from
the non-defaulting party and failed to cure the default within
thirty (30) days of receiving notice for any non-monetary default
other than failure to close, and five (5) days of receiving notice
for any monetary default.
- 13 -
15. Commission.
Other than a three percent (3%) sales commission payable solely by
the Seller under a separate agreement to Mackenzie Commercial Real
Estate Services, LLC, Seller and Buyer each represents to the other
that there is no real estate agent or real estate broker
responsible for bringing about this transaction. Each of Seller and
Buyer shall indemnify and hold harmless the other from any claims
for fees or commissions or any damage as a result of any such claim
(including reasonable attorneys' fees charged to defend such claim)
that arises from any breach of such party's representations in this
Section 15. This Section 15 shall survive Closing and any earlier
termination of this Contract.
16. Waiver
of Jury Trial. SELLER AND BUYER JOINTLY WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO WHICH SELLER AND BUYER MAY BE
PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS CONTRACT.
This waiver is knowingly, willingly and voluntarily made by Seller
and Buyer, each of whom hereby acknowledges that no representations
of fact or opinion have been made by any individual to induce this
waiver of trial by jury or to in any way modify or nullify its
effect. Seller and Buyer each further represents that it has been
represented in the signing of this Contract and in the making of
this waiver by independent legal counsel, selected of its own free
will, and that it has had the opportunity to discuss this waiver
with counsel.
17.
Miscellaneous.
A. Waiver
of Conditions. Each party reserves the right to waive any of the
terms, conditions and contingencies of this Contract that are for
the benefit of such party and to consummate the transactions
contemplated by this Contract in accordance with the terms and
conditions of this Contract which have not been so waived. Failure
to take any action reserved to a party pursuant to this Contract
shall not be deemed a waiver by such party of such action, and all
waivers must be in writing. A waiver in one or more instances of
any term, covenant or contingency of this Contract shall apply to
the particular instance or instances and at the particular time or
times only, and no such waiver shall be deemed a continuing waiver,
but every term, covenant or contingency shall survive and continue
to remain in full force and effect.
B. Notices.
All Notices, demands, requests and other communications required
pursuant to the provisions of this Contract shall be in writing and
shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or any other nationally
recognized overnight carrier for next Business Day delivery, on the
first Business Day following deposit of such Notice with such
carrier, or (ii) if personally delivered, on the actual date of
delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, or electronic mail (email), read-receipt
requested) on the third (3rd) Business Day following the date of
mailing addressed as follows:
If to
Buyer:
Orchard
Development Corporation
0000 Xxxxxx Xxxx
Xxxxx
Xxxxxxxx Xxxx,
Xxxxxxxx 00000
Attn: L. Xxxxx
Xxxxxxx, President
Telephone:
000-000-0000; Fax: 000-000-0000
Email
Address:xxxxx@xxxxxxxxxxxxxxxxxx.xxx
- 14 -
with a copy
to:
Carney, Kelehan,
Xxxxxxx, Xxxxxxx &
Scherr, LLP
00000 Xxxxxxx
Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx
00000
Attn: Xxxxx X.
Xxxxxxx, Esq.
Telephone:
000-000-0000; Fax: 000-000-0000
Email Address:
xxx@xxxxxxxxxxxxx.xxx
Ifto
Seller:
c/o SeD Development
USA, Inc.
Hampden
Square
0000 Xxxxxxxxxx
Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx
000000
Attn: Xxxxxxx
XxxXxxxxx
Conn
Xxxxxxxx
Xxxxxxx
Xxxxx
Telephone: (000)
000-0000; Fax:
_______________
Email
Addresses: xxxxxxx@xxx.xxx.xx
xxxx@xxx.xxx.xx
xxxx
@xxx.xxx.xx
And To:
SeD Xxxxxxxxx,
LLC
c/o Singapore
Development Limited
00 Xxxxxxxx Xxxx
#00-00
Xxxxxxxxx
000000
Attn: Xxx
Xxxx
Telephone:
; Fax: ____________
Email Address :
xxx@xxx.xxx.xx
With a copy
to:
Linowes and
Xxxxxxx LLP
00 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx
00000
Attn : Xxxxx X.
Xxxx, Esq.
Telephone:
000-000-0000; Fax: 000-000-0000
Email Address
:xxxxx@xxxxxxx-xxx.xxx
If to Escrow
Agent:
Carney, Kelehan,
Xxxxxxx, Xxxxxxx &
Xxxxxx, LLP
00000 Xxxxxxx
Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx
00000
Attn: Xxxxxxxx
XxXxxxxx, Esq.
Telephone:
000-000-0000; Fax : 000-000-0000
Email Address:
xxx@xxxxxxxxxxxxx.xxx
C. Entire
Agreement and Interpretation. This Contract contains the entire
agreement between Seller and Buyer. There are no promises or other
agreements, oral or written, express or implied, between Seller and
Buyer other than as herein set forth. This Contract may not
be
amended or modified except by written instrument signed by the
party to be charged with such amendment or modification. The
section and paragraph headings in this Contract are inserted for
convenience only and in no manner expand, limit or otherwise define
the terms hereof. Whenever in this Contract a time period shall end
on a day that is a Saturday, Sunday or legal holiday, the time
period shall be extended automatically to the next date that is not
a Saturday, Sunday or legal holiday. Both Seller and Buyer have
participated in the preparation of this Contract and no
construction of the terms hereof shall be taken against either as
the one drafting the Contract.
- 15 -
D.
Partial Invalidity. If any term, covenant or
condition of this Contract shall be invalid or unenforceable, the
remainder of this Contract shall not be affected and shall remain
in full force and effect.
E.
Governing Law. It is the intention of the
parties that all questions with respect to this Contract and the
rights and liabilities of the parties hereunder shall be determined
in accordance with the laws of the State of Maryland.
F.
Binding Effect; Assignment. All of the covenants, conditions and
obligations contained herein shall be binding upon and inure to the
benefit of the respective successors and assigns of Seller and
Buyer. Buyer shall not have the right to assign this Contract or
its rights under this Contract without obtaining in each instance
Seller's prior written consent. Notwithstanding the foregoing,
Buyer shall have the right, without Seller's consent, to assign its
entire right, title and interest in and to this Contract, expressly
including the Deposit, to any entity controlling, controlled by, or
under common control with Buyer; provided that, not less than three
(3) business days prior to Closing, Seller receives an executed
assignment and assumption agreement, in a form reasonably
acceptable to Seller, which expressly assigns the Deposit and in
which such assignee expressly assumes performance of this Contract
for the benefit of Seller. No such assignment or designation shall
relieve or release Buyer from any obligations under this Contract
(whether arising pre- or post-closing), and Buyer shall remain
jointly and severally liable for all of same together with such
assignee.
G.
Survival. Except as otherwise provided herein, the prov1s1ons of
this Contract shall survive Closing and delivery of the deed(s) for
a period of six (6) months and shall not be deemed merged
therein.
H.
Memorandum of Contract. This Contract shall not be recorded or
otherwise filed or made a matter of public record or lien records
and any attempt to record or file same by Buyer shall be deemed a
default by Buyer hereunder.
I. Time
of the Essence. Time is of the essence with respect to this
Contract.
J.
Exhibits. Each of the exhibits attached to this Contract is
incorporated herein by reference. Any exhibit not available at the
time this Contract is executed shall be agreed upon, initialed and
attached by the parties as soon after execution as it is
practicable, but failure to attach any exhibit shall not affect the
validity of this Contract unless the parties are in material
disagreement as to the contents of such exhibit.
K.
Counterparts. This Contract may be executed in one or more
counterparts, all of which shall be but one Contract and all of
which shall have the same force and effect as if all parties hereto
had executed a single copy.
- 16 -
L. Attorneys'
Fees. In the event of any legal action or arbitration proceeding
between the parties regarding this Contract or the Property, the
prevailing party shall be entitled to payment by the non-prevailing
party of the prevailing party's reasonable attorneys' fees and
litigation or arbitration expenses as determined in the course of
the proceeding.
M.
No Third Party Beneficiaries. The parties do not intend to confer
any benefit hereunder on any person, firm or corporation other than
the parties hereto and their respective successors or
assigns.
[Signatures
commence on following page]
- 17 -
IN
WITNESS WHEREOF, the parties hereto have signed, sealed and
delivered these presents as their own free act and deed, intending
that this Contract be effective as of the later of the dates set
forth beneath the signatures of the parties below (the "Effective Date").
WITNESS/ATTEST:
SELLER:
SeD Maryland Development, LLC, a
Delaware
limited liability company
By: SeD Development Management,
LLC, Manager
___________________________________________
(SEAL)
Name: Xxxxxxx X.X. XxxXxxxxx,
Manager
Date: ______________________________________
BUYER:
ORCHARD DEVELOPMENT CORPORATION ,
a
- 18 -
ACKNOWLEDGMENT AND CONSENT OF ESCROW AGENT:
Escrow
Agent hereby: (i) acknowledges receipt of the Deposit, and (ii)
agrees to be bound by the provisions and perform the obligations
hereof applicable to Escrow Agent.
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Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxxx &
Xxxxxx, LLP
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name: Xxxxxxxx
XxXxxxxx
|
|
|
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Title:
Partner
|
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- 19 -
EXHIBIT A
LEGAL
DESCRIPTION
|
|
- 20 -
EXHIBIT
B
ESCROW
AGREEMENT
- 21 -
EXHIBIT C
LIST OF XXXXXXXXX RUN PROPERTY APPROVALS
|
APPROVALS:
|
DATE
|
LIBER/FOLIO
|
|
Rezoning
(Ordinance No.
13-20-648)
|
10/13/2013
|
NIA
|
|
Combined
Preliminary/Site Development Plan
|
10/8/2014
|
NIA
|
|
(S-1143, SP-14-18 & AP#14623)
|
|
|
|
Improvement
Plans
|
5/5/2016
|
NIA
|
AGREEMENTS:
|
Development Rights
and Responsibilities Agreement (Xxxxxxxxx County)
|
10/17/2013
|
9814112
|
|
Adequate Public
Facilities Letter of Understanding (Xxxxxxxxx County)
|
10/17/2013
|
9814/51
|
|
Memorandum of
Understanding (Board of Education)
|
10/8/2014
|
10241/351
|
- 22 -
|
EASEMENTS:
|
DATE
|
LIBER/FOLIO
|
|
Forest Resource
Easement
|
111 112016
|
109491470
|
|
2 Year
Forest Improvement Agreement
|
111 112016
|
NIA
|
|
Irrevocable Letter
of Credit for Forestation Issued by Bank of Hampton Roads
($201,322.99)
|
|
NIA
|
|
Stormwater
Management Pond Easement (Ponds 3-7)
|
31412016
|
110191225
|
|
Private Storm Drain Easements (#1, 2, 3
& 4)
|
2129/2016
|
11019/245
|
|
Public Storm Drain Easements (#1,
2, 3, 4, 5, 6, 7, 8, 9, 10 & 11)
|
2129/2016
|
11019/257
|
**L&B 583034 l v l/
12869.0002
- 23 -
