EXHIBIT I
PURCHASE AND DEVELOPMENT AGREEMENT
(DRAFT-SUBJECT TO CHANGE)
Cover Page
Agreement (FMV) ver. 2-2018
Purchase and Development Agreement
between
Philadelphia Land Bank
and
[DEVELOPER NAME]
For the Development of [PROPERTY ADDRESS]
Philadelphia, Pennsylvania
NO LATER THAN TEN (10) BUSINESS DAYS AFTER RECEIPT OF THIS AGREEMENT FROM THE LAND BANK, THE DEVELOPER MUST DELIVER TO THE LAND BANK ONE (1) SIGNED COPY OF THIS AGREEMENT VIA EMAIL.
THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING ONLY UPON EXECUTION BY BOTH THE LAND BANK AND DEVELOPER.
Cover Page
Agreement (FMV) ver. 2-2018
TABLE OF CONTENTS
SECTION I - RECITALS AND DEFINITIONS
1.01Recitals.
1.02Defined Terms.
1.03Other Definitional Provisions.
SECTION II - SALE OF THE PREMISES AND LOSS/DAMAGE TO PREMISES
2.01Premises.
2.02Loss or Damage to Premises.
SECTION III - TITLE, PREPARATION OF DEED, AND RECORDING
3.01Title.
3.02Inability of Land Bank to Convey Title.
3.03Preparation of Deeds.
SECTION IV - SETTLEMENT
4.01Settlement.
4.02Proposed Settlement Date.
4.03Waiver of Formal Tender.
SECTION V - PURCHASE PRICE AND PRORATIONS
5.01Purchase Price.
5.02Taxes, Prorations, and Recording Fees.
SECTION VI - PERFORMANCE DEPOSIT
6.01Performance Deposit.
SECTION VII - REQUIRED APPROVALS AND CONDITIONS PRECEDENT
7.01Required Approvals.
7.02Conditions Precedent to Settlement.
7.03Incomplete Conditions Precedent.
SECTION VIII - CONSTRUCTION FINANCING
8.01Prohibition against Encumbrances.
8.02Notice of Financing, Removal of Encumbrances.
8.03Mortgagee’s Rights.
8.04Mortgagee's Option to Cure Defaults.
8.05Notices of Default to and from Approved Mortgagees.
SECTION IX - DEVELOPER’S OBLIGATIONS AND CERTIFICATE OF COMPLETION
9.01Obligation to Develop.
9.02Commencement of Construction.
9.03Changes to Plans.
9.04Inspection of the Premises.
9.05Insurance.
9.06Maintenance of the Premises.
9.07Indemnification.
9.08Certificate of Completion.
9.09Access to Premises.
SECTION X - DISCLAIMERS AND RELEASE
10.01Disclaimer of Warranties and Representations.
10.02Release.
10.03Responsibility for Condition of Premises.
SECTION XI - DISCRIMINATION AND ECONOMIC OPPORTUNITY PLAN
11.01Covenant Against Discrimination.
11.02Minority, Disadvantaged and Female Owned Business Enterprise Requirements.
SECTION XII - RESTRICTIONS AGAINST CERTAIN TRANSFERS
12.01Restrictions on Transfer and Assignment of Interest in Developer.
SECTION XIII - DEFAULT AND REMEDIES
13.01Event of Default.
13.02Notice of Event of Default.
13.03Condition Subsequent and Right of Re-Entry.
13.04Limitation of Developer’s Remedies.
13.05Irrevocable Power of Attorney.
13.06Distribution Upon Sale After Revestment of Title.
13.07Powers of Attorney.
13.08Force Majeure.
13.09Rights and Remedies Cumulative.
SECTION XIV - MISCELLANEOUS PROVISIONS
14.01Compliance with Applicable Law.
14.02Severability.
14.03Developer an Independent Contractor.
14.04Time is of the Essence.
14.05Notices.
14.06Binding Effect/Integration.
14.07Amendments.
14.08Successors and Assigns.
14.09Waiver.
14.10Exhibits.
14.11Merger/Survival.
14.12Captions.
14.13Counterparts.
14.14Computation of Time.
14.15No Third Party Beneficiary.
14.16Rules of Construction.
EXHIBITS
Exhibit A – Legal Description
Exhibit B –Cancellation Agreement
Exhibit C –Plans
Exhibit D –Economic Opportunity Plan
Table of Contents
Agreement (FMV) ver. 2-2018
THIS PURCHASE AND DEVELOPMENT AGREEMENTis entered into as of[MONTH, DAY, AND YEAR], effective as of the Effective Date, as defined in Section 1.02 of this Agreement, between the Philadelphia Land Bank and the Developer, as defined in Section 1.02 of this Agreement.
RECITALS
- Section 16-700, et seq. of the Philadelphia Code created the Philadelphia Land Bank, as permitted pursuant to Section 68 Pa.C.S.A. §2101, et seq.
- Section 16-707 of the Philadelphia Code authorizes the Philadelphia Land Bank to convey, exchange, sell, transfer, lease, grant, or mortgage interests in real property of the Philadelphia Land Bank, subject to approval of the Vacant Property Review Committee and resolution of Philadelphia City Council, among other things.
- In accordance with terms and conditions of this Agreement, the Philadelphia Land Bank desires to sell, transfer, and conveythe Premises, asdefined in Section 1.02, to the Developer, and the Developer desires to purchase and accept the Premises from the Philadelphia Land Bank.
NOW THEREFORE, in consideration of the mutual covenants set forth in this Agreementand intending to be legally bound hereby, Land Bank and Developer agree as follows:
SECTION I -RECITALS AND DEFINITIONS
1.01Recitals.
The above recitals are incorporated herein by reference as if set forth at length.
1.02Defined Terms.
As used in this Agreement, the following terms have the respective meanings assigned to them:
"Agreement " means this Purchase and Development Agreement.
"Approved Mortgagee"has the meaning given to it in Section8.03.
"Cancellation Agreement" means the Cancellation Agreement attached as Exhibit B.
"Certificate of Completion"has the meaning given to it in Section 9.08.
"City" means the City of Philadelphia in the Commonwealth of Pennsylvania.
"Commonwealth" means the Commonwealth of Pennsylvania.
"Conditions Precedent" has the meaning given to it in Section 7.02.
"Construction Start Date" means the date that is[VERBAL NUMBER (NUMERIC)]months after Settlement.
"Construction Deadline" means the date that is[VERBAL NUMBER (NUMERIC)]months after Settlement.
"Deed" has the meaning given to it in Section 3.01.
"Delivery Date" means the date the Land Bank mails or emails a fully executed originalor copy of this Agreement to Developer.
"Deposit" means the amount of [VERBAL DOLLARS] [($ NUMERIC DOLLARS)] Dollars.
"Deposit Due Date" means the date the Developer delivers a signed original or copy of this Agreement to the Land Bank.
"Developer"means [DEVELOPER ENTITY NAME], a [TYPE OF ENTITY AND STATE OF ORGANIZATION]having a mailing address of [DEVELOPER MAILING ADDRESS].
"Effective Date" means the date the last party has signed this Agreement as indicated on the notary acknowledgementto this Agreement.
"Encumbrance"has the meaning given to it in Section 8.01.
"Environmental Laws" means any and all applicable Federal, state, and local laws, rules, or regulations, and all applicable orders or decrees, in each case as now or hereafter in effect, relating to the regulation or protection of human health, safety, or the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or toxic or hazardous substances or wastes into the environment including ambient air, soil, surface water, ground water, wetlands, land or subsurface strata, or otherwise relating to the manufacture, processing, holding, existence, release, distribution, use, treatment, storage, disposal, transport, handling, generation, production, refining, control, management, abatement, removal, transfer, spilling, leaking, or dumpingof pollutants, contaminants, chemicals or toxic or hazardous substances, materials, or wastes.
"EOP"has the meaning given to it in Section 11.02.
"Event of Default"has the meaning given to it in Section 13.01.
"Hazardous Material" meansany material or substance, of any nature, which is now or hereafter prohibited, limited, or otherwise regulated in any way under any Environmental Laws.
"Improvements" means [DESCRTIPTION OF IMPROVEMENTS].
"Land Bank" means the Philadelphia Land Bank having a mailing address of 1234 Market St., 16th Floor, Philadelphia, PA 19107, Attn: Executive Director.
"Material Change"has the meaning given to it in Section9.03.
"Plans"has the meaning given to it in Section 9.01.
"Premises" means the real estate, and any portion thereof, situated at [PREMISES ADDRESS], Philadelphia, PA [PREMISES ZIP CODE]as more particularly described in Exhibit A.
"Proposed Settlement Date"has the meaning given to it in Section 4.02(a).
"Purchase Price" means the amount of [VERBAL NUMBER ($ NUMERIC.00)]and [CENTS]/100 Dollars.
"Required Approvals" has the meaning given to it in Section 7.01.
"Settlement" means the transfer of title to the Premises and payment of all funds owing to the Land Bank pursuant to this Agreement.
"Settlement Date" means the date Settlement is scheduled to occur pursuant to Section 4.02 and, once Settlement occurs, the actual date of Settlement.
"Settlement Deadline" meansthe date that is not later than [VERBAL NUMBER (NUMERIC)]months after the Delivery Date.
"Title Commitment" means a commitment for title insurance for the Premises issued by a title insurance company licensed to do business in the Commonwealth, obtained by the Developer, at its sole cost and expense, which indicates the status of the title and setting forth the requirements to be satisfied at or prior toSettlement.
1.03Other Definitional Provisions.
All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant to this Agreement unless otherwise definedtherein. All definitions are applicable to the singular as well as to the plural and to the masculine as well as the feminine and neuter genders. Whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms.
SECTION II -SALE OF THE PREMISES AND LOSS/DAMAGE TO PREMISES
2.01Premises.
Subject to the terms and conditions of this Agreement, Land Bank agrees to sell, transfer, and convey to Developer, and Developer agrees to purchase and accept from Land Bank, the Premises. The Premises includes (i) the land; (ii) any and all buildings, structures, and other improvements located thereon; (iii) trees, shrubbery, and plantings located thereon; and (iv) any and all easements, rights-of-way, agreements, privileges, riparian rights, licenses, and other rights, obligations, and benefits running with the Premises.
2.02Loss or Damage to Premises.
Any loss or damage to the Premises or to any improvements thereon occurring between the Effective Date and Settlement as a result of fire or other casualty shall not affect, void, or impair any provision of this Agreement.
SECTION III -TITLE, PREPARATION OF DEED, AND RECORDING
3.01Title.
The Land Bank has acquired or shall acquire title to the Premises. Subject to Section 7.02, the Land Bank shall convey to Developer good and marketable title to the Premises by special warranty deed (the "Deed"). The Deed shall be subject to the terms and conditions of this Agreement. This Agreement shall be recorded in the City Department of Records before recordation of the Deed.
3.02Inability of Land Bank to Convey Title.
(a)If the Land Bank provides notice to Developer that the Land Bank is unable to convey title as required by Section 3.01, the Land Bank, in its sole and absolute discretion, may
(i)extendthe Settlement Date or the Settlement Deadline;
(ii)allow the Developer, at the Developer’s option, to take such title as the Land Bank can give without abatement of the Purchase Price; or
(iii)terminate this Agreement.
(b)If the Land Bank elects to terminate this Agreement pursuant to this Section 3.02, the Developer shall execute the Cancellation Agreement attached as Exhibit B. Upon the Land Bank’s receipt of the Cancellation Agreement signed by the Developer and there being no Event of Default which is not cured by the expiration of the Cure Period,the Land Bank shall promptly return the Deposit (less the cost and fees to record the Cancellation Agreement) and, except as set forth in Section 14.11 of this Agreement, there shall be no further liability or obligation by either party hereunder and this Agreement shall become null and void.
3.03Preparation of Deeds.
The Land Bank shall prepare the Deedand any appurtenant easements at its own cost and expense.
SECTION IV -SETTLEMENT
4.01Settlement.
Developer shall take title to the Premises in accordance with this Agreement on the Settlement Date, but no later than the Settlement Deadline. Settlement will be held at the office of the Land Bank or such other place as the Land Bank may reasonably designate.
4.02Proposed SettlementDate.
(a)Developer shall propose a date for Settlement by notifying the Land Bank by both letter and email, which proposed date shall be no later than the Settlement Deadline (the "Proposed Settlement Date"). Developer’s notice of the Proposed Settlement Date must (i) contain a copy of the Title Commitmentand(ii) be delivered at least forty (45) days before the Proposed Settlement Date.
(b)The Land Bank shall notify the Developer if the Proposed Settlement Date is acceptable to the Land Bank. If the Proposed Settlement Date is not acceptable, the Land Bank shall provide the Developer with an alternative date for Settlement, which date may be after the Settlement Deadline, in the Land Bank's sole and absolute discretion, and Settlement shall occur on the dateindicated by the Land Bank.
4.03Waiver of Formal Tender.
The parties hereby waive tender of the Deed and the Purchase Price, but nothing herein contained shall be construed as a waiver of Land Bank's obligation to deliver the Deed or of the concurrent obligation of Developer to pay the Purchase Price at Settlement.
SECTION V -PURCHASE PRICE AND PRORATIONS
5.01Purchase Price.
At Settlement, the Developer shall pay the Land Bank the Purchase Price in cash, by certified check, or by wire transfer, subject to Section 5.02.
5.02Taxes, Prorations, and Recording Fees.
(a)All Commonwealth and City realty transfer taxes due in connection with this transaction shall be paid by Developer.
(b)Real estate taxes, water, sewer and stormwaterfees,andall other utility charges will be adjusted at Settlement pro-rata on a daily basis between the Land Bank and Developer. The Land Bank will be responsible for such items up to and including the date of Settlement and Developer will pay for all days following Settlement.
(c)Developer shall pay any and all fees and costs to record this Agreement,the Deed, and any and all other documents required to be recorded by the Land Bank.
SECTION VI -PERFORMANCE DEPOSIT
6.01Performance Deposit.
Within five (5) days after the Delivery Date, Developer will provide the Land Bank with the Deposit. The Deposit will secure performance of the Developer’s obligations under this Agreement. The Land Bank shall be under no obligation, but shall have the right, in its sole and absolute discretion, to place the Deposit in an interest bearing account. Any interest earned on the Deposit shall be retained by the Land Bank. After issuance of a Certificate of Completion, the Land Bank shall use the Deposit to record the Certificate of Completion, and promptly return the balance of the Deposit, without interest, to the Developer; provided, that there is no uncured Event of Default.
SECTION VII -REQUIRED APPROVALS AND CONDITIONS PRECEDENT
7.01Required Approvals.
(a)Promptly after Developer’s execution of this Agreement, Developer shall, at its sole cost and expense, file all applications, pay all fees, and submit all supporting documents necessary to obtain all approvals from the Zoning Board of Adjustment of the City, the City Department of Public Property, the Philadelphia Planning Commission, and any other governmental or quasi-governmental entity that are necessary to legally construct the Improvementsand otherwise develop the Premises (collectively, the "Required Approvals").
(b)The Land Bankshall reasonably cooperate with Developer in connection with applying for the Required Approvals includingproviding authorizations necessary for such applications, but in no event shall the Land Bank be required to expend any costs, sums, or expensesin connection with such cooperation. Developer shall diligently and with best efforts seek to secure the Required Approvals on or before the Settlement Deadline.
7.02Conditions Precedent to Settlement.
The following are conditions precedent (each "Condition Precedent") to the Land Bank’s obligation to convey title to the Premises:
(a)Developer has demonstrated to the satisfaction of the Land Bank the availability of the full amount of funds needed to complete construction of the Improvements;
(b)Developer has obtained all Required Approvals;
(c)There is no Event of Default which is uncured by the expiration of the Cure Period;
(d)If applicable, the Land Bank has acquired the Premises from the applicable governmental or quasi-governmental entity. The Developer acknowledges that the Premises may need to be conveyed from a governmental or quasi-governmental entity to the Land Bank and that this Agreement is made conditioned on such conveyance; and
(e)The unconditional approval of this Agreement by the Vacant Property Review Committee, Philadelphia City Council, and the Land Bank Board of Directors.
7.03Incomplete Conditions Precedent.
(a)If any Condition Precedentis not satisfied prior to the Settlement Deadline, the Land Bank may, in its sole and absolute discretion, elect to:(i) waive any ConditionPrecedent (except for Section 7.02(e)); (ii) extend the Settlement Date or the Settlement Deadline; or (iii) terminate this Agreement.
(b)If the Land Bank elects to terminate this Agreement pursuant to this Section 7.03, the Developer shall execute the Cancellation Agreement attached as Exhibit B. Upon the Land Bank’s receipt of the Cancellation Agreement signed by the Developerand there being no Event of Default which is not cured by the expiration of the Cure Period, the Land Bank shall promptly return the Deposit (less the cost and fees to record the Cancellation Agreement) and, except as set forth in Section 14.11 of this Agreement, there shall be no further liability or obligation by either party hereunder and this Agreement shall become null and void.
SECTION VIII -CONSTRUCTION FINANCING
8.01Prohibition against Encumbrances.
No mortgage, judgment, lien, encumbrance, security interest, attachment, levy, or any other adverse charge (collectively, "Encumbrance") shall be entered or filed against the Premises without the prior written consent of the Land Bank, which consent may be withheld, conditioned, or delayed in the Land Bank's sole and absolute discretion, except that the Land Bank's consent for any Encumbrance for financing the acquisition of the Premises or construction of the Improvements shall not be unreasonably withheld or delayed. Any approved Encumbrance may not be assigned except to a bank, savings institution, commercial credit company, real estate investment trust, or other nationally recognized investment company.
8.02Notice of Financing, Removal of Encumbrances.
If the Developer intends to obtain financing for the acquisition of the Premises or construction of the Improvements, which is to be secured by an Encumbrance upon the Premises, the Developer shall notify the Land Bank in writing at least thirty (30) days prior to closing on the financing. If any unapproved Encumbrance attaches to the Premises, the Developer shall notify the Land Bank in writing and promptly take all necessary action to, and shall, remove, satisfy, or discharge the Encumbrance no later than fifteen (15) days after the Encumbrance attached to the Premises.
8.03Mortgagee’s Rights.
If any mortgagee, lienor, secured party, or holder of any Encumbrance, which received prior approval by the Land Bank ("Approved Mortgagee"),obtains title to the Premisesas a result of foreclosure or other judicial proceedings or action in lieu thereof or otherwise, such Approved Mortgagee shall be exempted from those provisions of this Agreement which require construction and completion of the Improvements within a certain time period. This exemptions shall not run in favor of any purchaser at foreclosure or judicial sale other than an Approved Mortgagee nor in favor of any person or entity who subsequently obtains title to the Premises from an Approved Mortgagee; provided, however, that no person or entity, including an Approved Mortgagee, may devote the Premises to any use or construct any improvements thereon other than those uses and Improvements as permitted pursuant to this Agreement.