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Exhibit 10(ggggg)
REAL ESTATE SALES CONTRACT
THIS CONTRACT, made as of this 20th day of December, 1996, by and
between American Family Homes, Inc. ("Seller") and Darby Station Limited
Partnership, Interstate Business Corporation, General Partner or assigns
("Purchaser").
WITNESSETH
NOW, THEREFORE, in consideration of the mutual covenants of Seller and
Purchaser and for other good and valuable consideration, the receipt and
sufficiency of which Seller acknowledges, Seller and Purchaser agree as
follows:
1. Agreement of Sale and Purchase. Seller agrees to sell and convey
to Purchaser and Purchaser agrees to purchase from Seller, in fee simple
absolute, under terms and conditions set forth below, all that parcel of
land containing 11.8915 acres located in the Dorchester Neighborhood of St.
Charles PUD, Charles County, Maryland and known as Parcel K, containing
ninety-four (94) townhome lots hereinafter collectively referred to as the
Property, more particularly described and shown as Exhibit A, attached
hereto and made a part hereof.
2. Purchase Price. The total purchase price for the Property shall
be Sixteen Thousand One Hundred Dollars ($16,100.00) per lot or One Million
Five Hundred Thirteen Thousand Four Hundred ($1,513,400) Dollars in cash.
3. Payment of Purchase Price. The total purchase price for the
property shall be paid as follows:
(a) Twenty percent (20%) of the total Purchase Price, Three Hundred
Twenty Thousand Four Hundred Seventy Eight Dollars and Forty Eight Cents
($32,000) shall be payable in cash at Closing.
(b) The remaining eighty percent (80%) of the Purchase Price, One
Million One Hundred Ninety Two Thousand, Nine Hundred Twenty One Dollars
and Fifty Two Cents ($1,192,921.52) shall be payable by Purchaser's
negotiable deferred purchase money promissory note (hereinafter referred to
as the "Note") substantially in the form of attached Exhibit B, which
shall be payable in the following manner:
(i) The Note shall accrue interest at the rate of eight percent
(8%) per annum from the date of Closing until maturity, at which time
the full principal amount of the Note plus accrued interest thereon
shall be due and payable.
(ii) In the event that Purchaser prepays a portion of the Total
Purchase Price, the prorate portion of the Purchase Price which is
prepaid shall be due and payable upon settlement of those Lots(s).
In the event the appraisal is more than or less than the Sixteen
Thousand One Hundred Dollars per lot, the Purchase price and the
corresponding note will be adjusted accordingly.
(iii) The outstanding principal balance and all accrued interest due
thereon shall be due and payable in full, unless sooner paid, on
December 15, 1997.
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The note shall be secured by a first deed of trust on the real property
(hereinafter called the "Deed of Trust") substantially in the form of
attached Exhibit C.
3a. Additional Consideration.
A. Purchaser in the name of and on behalf of the Seller, agrees
that it will pay to the Charles County Department of Public Works, or
such other legal entity providing sewer and/or water services to the
aforesaid lots, the charges in effect at the time of connection for
connection to the sewer and/or water system including such other
charges as may be imposed by such authority, the charge per dwelling
unit for the purpose of providing a sewer connection to the Mattawoman
Interceptor or similar interceptor serving the balance of the project.
All rebates and/or credits shall inure to the benefit of and be repaid
to the Seller.
B. Purchaser will pay to Seller a fee of $200.00 per dwelling
unit for off-site construction of interceptors, pumping or treatment
facilities.
C. Purchaser shall pay in a timely fashion, in the name of and
on behalf of the Seller, the applicable off-site road fee imposed by
the Charles County Department of Public Works and the applicable
school impact fee.
D. Purchaser shall provide and install all mailboxes onto
provided mailbox structures as required by local Post Office and the
St. Charles Planning and Design Review Board.
E. Purchaser agrees to comply with all of the requirements of
Docket 90 for Parcel K, as attached.
F. Purchaser agrees to comply with all requirements of the
Preliminary Plan, as approved.
G. Purchaser shall pay all fines imposed by Maryland Department
of the Environment due to failure of Purchaser's lot(s) to comply with
Erosion and Sediment Control Ordinances.
4. Title. The Lots purchased hereunder shall be conveyed by Seller
with good and marketable title of record and in fact, in fee simple, free
and clear of all liens and encumbrances of any kind, except covenants,
conditions, easements and restrictions of record ordinarily recorded in the
development of residential housing developments and uniformly applicable to
all other lots in each group or section purchased by Purchaser, including
but not limited to, the Declaration of Easements, Covenants, Conditions and
Restrictions recorded for Westlake Village and Dorchester Neighborhood and
Westlake Village Architectural Covenants. At Closing, conveyance of the
Property to the Purchaser shall be effected by a good and sufficient
special warranty deed.
5. Investigation. The Purchaser shall have the right within 30 days
from the acceptance date of this contract by the Seller to cause any one or
more of the following to be made: boring, engineering, market, economic,
topographic tests, studies, and or investigations as to the subject
property. In the event that any one or more of said tests, studies, and or
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investigations do not warrant the development of the Property, in the sole
discretion of the Purchaser, then and in such event, the purchaser shall
have the right within said 30 day period to terminate this contract and to
forthwith receive a full refund of his deposit paid hereunder.
6. Settlement. The Purchaser agrees to settle on the property
within 15 days after notification to Seller that all of the conditions of
approval placed on the project by the Charles County Planning Commission
are acceptable to the Purchaser, but in no event later than December 27,
1996. Settlement on the land shall take place at the law offices of the
Purchaser's choosing. TIME IS OF THE ESSENCE.
7. Failure to Deliver Title. Should Seller be unable to deliver
title in accordance with the provisions of this Agreement or any extension
of time agreed upon by the parties, it is agreed that Purchaser's liability
shall terminate; provided, however, that if the defects of title are of
such nature that they can readily be remedied by legal action, such action
shall be promptly undertaken by Seller, at its expense, and the time of
Closing extended for a period not to exceed sixty (60) days for such
action.
8. Use of Property. Purchaser represents and warrants that it is
acquiring the Property for the purpose of building and selling townhome
units.
9. Front-Foot Benefit Charges. The Seller advises the builder and
the builder agrees to and shall advise all purchasers of lots from the
builder, that said lots may be subject to uniform front-foot benefit
charges, in accordance with Charles County policies and regulations.
10. Water and Sewer Services. Seller represents and warrants that
water and sewer services shall be furnished by the Charles County
Department of Public Works or such other legal entity responsible for
furnishing water and sewer services and such services shall be available to
Purchaser for each dwelling unit, as and when required by Purchaser, in
accordance with the rates, rules and regulations then in effect.
The Purchaser agrees to notify the Builder(s) that at the time of any
application for a building permit for said lot or lots, he will agree in
writing that he understands that the Certificate of Use and Occupancy will
not be issued for said lot or lots until such time as the water and sewer
facilities are determined by the County to be substantially complete and
that he will include in any contract of sale which he executes for the sale
of said lot or lots a written notice to any subsequent purchaser that a
Certificate of Use and Occupancy will not be issued for said lot or lots
until the water and sewer facilities are determined by the County to be
substantially complete. The builder also understands that a Certificate of
Use and Occupancy will not be issued for any lot until it is determined by
the County that all roads serving the particular lot are substantially
complete. Satisfactory installation of the base coat constitutes
"substantially complete".
11. FHA and Other Governmental Rules and Regulations.
A. Purchaser agrees that any dwelling units constructed by it
on the aforesaid Lots shall be in accord with the standards,
specifications, rules and regulations of all applicable governmental
agencies.
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B. Seller is including in the sale price of the Lots as set
forth herein all amenities, including but not limited to parks,
playgrounds, school sites and neighborhood centers with swimming pool.
These amenities are part of Dorchester Neighborhood. A fee for maintenance
of community facilities will be applicable in accordance with any
assessments applied pursuant to Section 17 herein.
12. Architectural Approval.
A. Purchaser shall submit to Seller, for its written approval,
floor plans and elevations on all new dwelling units proposed to be
constructed by Purchaser on the aforesaid Lots and from which sales of
dwelling units will be made, plus plans for styles and exteriors of all
such buildings to be built. The Purchaser also agrees that the Seller,
through the St. Charles Planning and Design Review Board, or other
committee designated by Seller, has the absolute right to approve or
disapprove any and all site plans and architectural plans for structures to
be constructed in the St. Charles Communities. See Exhibit D, Fee
Schedule.
B. If Purchaser complies with reasonable standards of design
and FHA requirements, Seller guarantees approval of Purchaser's plans by
said Committee.
C. Written approval or disapproval of plans submitted by
Purchaser shall be delivered to Purchaser within thirty (30) days after
submission of such plans by Purchaser. In the event that the St. Charles
Planning and Design Review Board or any committee designated by Seller
shall fail to deliver written approval or disapproval of the Purchaser's
plans within thirty (30) days after submission of such plans, it shall be
conclusively presumed that the plans submitted have been approved.
13. Advertising.
A. Purchaser agrees that in its sales program, advertising,
publicity and public relations campaign, copy for newspapers, radio,
television, billboard and other advertising media and in brochures,
circulars and the like, the name and logo "St. Charles" shall be publicized
in a prominent manner, and that all advertising copy shall be submitted to
and approved by Seller prior to being used by Purchaser.
B. The Purchaser agrees that any advertisement for the sale of
housing or rental of housing constructed by it at St. Charles will adhere
to the following restrictions:
1. The Purchaser shall submit all news releases concerning St.
Charles to all publications and radio and TV stations on the list
maintained by the Developer for advertising purposes.
2. All advertising in any communications medium or any printed
matter made available to the public shall contain the equal housing
opportunity logo, statement or slogan of the Department of Housing and
Urban Development (37 F.R. 6702, Table II).
3. Seller shall provide the necessary signs from the road to
the model home site.
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14. Trees. Both Seller and Purchaser agree that they will use their
best efforts to preserve the trees on the finished sites.
15. Restrictive Covenants and Assessments. Purchaser agrees that all
of the Lots conveyed under this Agreement are subject to all restrictive
covenants that have been or will be recorded against the Property in form
as approved by the Seller, which covenants will contain the power of
assessment in an association or other entity. Such assessment shall be
prorated between the Purchaser and Seller as of the date of settlement.
Assessment shall not be more than 75 cents per hundred dollars of assessed
valuation of the Property.
16. Seller's Representations and Warranties.
A. Seller represents and warrants that (i) it is the owner of
record and in fact, legally and beneficially, of the Property, (ii) it has
the right to sell said Property without the agreement of any other person
and (iii) it has title that is good and marketable, and not subject to any
liens, encumbrances, leases, covenants, conditions, restrictions, rights of
way, easements or other matters affecting title which would interfere with
Purchaser's intended development of the Property.
17. Purchaser's Representations and Warranties.
A. Purchaser is a corporation duly organized and validly
existing under the laws of the State of Maryland and is qualified to do
business in the State of Maryland.
B. Purchaser and its officers have full right and authority to
execute this Purchase Agreement.
18. Adjustments and Costs. Taxes, metropolitan district charges,
front footage or other benefit charges or assessments charged on an annual
or other periodic basis by any State, County, District, Commission or any
agency or subdivision thereof shall be adjusted and prorated to the date of
Closing, except that assessments for improvements existing in or on the
Property prior to the date of Closing, whether or not levied or even if
payable thereafter, shall be paid by the Seller. The cost of all
documentary stamps, transfer taxes, or other taxes on the act of transfer
or conveyance required to be paid in full in connection with the transfer
of the Property shall be paid in full by Purchaser. Costs of recordation
and title examination shall be paid by Purchaser. Any special Farmland
Assessment, rezoning tax, recapture tax or successor tax shall be paid in
full by Seller.
19. Risk of Loss. The risk of loss or damage to the Property by fire
or other casualty until the deed of conveyance is recorded is assumed by
the Seller.
20. Cable Television. Purchaser agrees that prior to and during the
period in which a home or homes on the Property are being constructed,
Purchaser shall permit Jones Communications, a Colorado corporation, and
its agents, employees and contractors, to lay CATV cable in the same
trenches opened for the running of electric lines and, at reasonable times
and upon reasonable notice, to enter the premises and pre-wire the premises
for cable television service. The right of access granted hereby shall be
for the benefit of, and exercisable by, Jones Communications, Inc., or any
successor or assignee thereto succeeding to the ownership or operation of
its cable television system in St. Charles.
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21. Complaints. As the satisfaction and well being of all purchasers
of homes in St. Charles is of importance to Seller and Purchaser, the
parties agree that any homeowner complaints shall be treated by Purchaser
both courteously and expeditiously.
22. Nondiscrimination.
A. Purchaser agrees that neither it nor anyone authorized to
act for it will refuse to sell or rent, after the making of a bona fide
offer, or refuse to negotiate for the sale or rental of, or otherwise make
unavailable or deny a Lot covered by this Agreement to any person because
of race, color, religion, sex or national origin. This covenant shall also
be included in the final deed of conveyance, shall run with the land and
shall remain in effect without any limitations in time.
B. Seller and Purchaser agree that any restrictive covenant on
the Property relating to race, color, religion, sex, or national origin is
recognized as being illegal and void and is specifically disclaimed.
23. Sole Agreement. This Agreement represents the complete
understanding between the parties hereto and supersedes all prior
negotiations, representations or agreements, either written or oral, as to
the matters described herein. This Agreement may be amended only by a
written instrument signed by both parties. No requirements, obligations,
remedy or provision of this Agreement shall be deemed to have been waived,
unless so waived expressly in writing, and any such waiver of any provision
shall not be considered a waiver of any right to enforce such provision
thereafter.
24. Time of the Essence. Time shall be considered of the essence of
this Agreement.
25. Serveability. If any provision of this Agreement shall be held
violative of any applicable law or unenforceable for any reason, the
invalidity or unenforceability of any such provision shall not invalidate
or render unenforceable any other provision hereof which shall remain in
full force and effect.
26. Assignment. Purchaser shall not have the right to assign this
Agreement without the consent of Seller, which consent shall not be
unreasonably withheld.
27. Successors, Assigns and Survival. The covenants, agreements and
conditions herein contained shall inure to the benefits of and bind the
successors and acceptable assigns of the parties hereto. All
representation, warranties, covenants and agreements set forth herein shall
remain operative and shall survive the Closing on the Property and the
execution and delivery of the Deed and shall not be merged therein.
28. Competitors. Purchaser hereby understands Seller plans to sell
lots and acreage to other builders; however, Seller hereby warrants that no
other purchasers will receive price and price terms which would in any way
place Purchaser at a competitive disadvantage as to price, advertising
cooperation, purchase of additional properties, terms of payment, model
home lots, quality of construction demanded by the St. Charles Planning and
Design Review Board, or other consideration.
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29. Notice. All notices authorized or required herein shall be in
writing and shall be sent by registered or certified mail, return receipt
requested, to Seller or Purchaser at their respective address as set forth
below:
Seller: American Family Homes, Inc.
222 Smallwood Village Center
St. Charles, Maryland 20602
Attention: Edwin L. Kelly
Buyer: Darby Station Limited Partnership
Interstate Business Corporation, General Partner
222 Smallwood Village Center
Waldorf, Maryland 20602
Attention: J. Michael Wilson, President
30. Commissions. No real estate commissions are involved in respect
to the sale and purchase of the Property described herein.
31. Governing Law. This Agreement shall be governed by the laws of
the State of Maryland.
32. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under their respective seals as of the day and year first above written.
WITNESS: AMERICAN FAMILY HOMES, INC.
/s/ Lisa D. Sweeney By: /s/ Edwin L. Kelly
- ---------------------- -----------------------
Edwin L. Kelly
Its: Director, Vice Chairman
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WITNESS: DARBY STATION LIMITED PARTNERSHIP
INTERSTATE BUSINESS CORPORATION,
GENERAL PARTNER
/s/ Lisa D. Sweeney
- --------------------- By: /s/ J. Michael Wilson
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J. Michael Wilson
Its: President