Agenda Special 02-24-03 CITY COMMISSION
CITY OF DELRAY BEACH~ FLORIDA
SPECIAL/PUBLIC HEARING - MONDAYs FEBRUARY 24~ 2003
8:00 A.M. COMMISSION CHAMBERS
DELRAY BEACH
'1993
2001
The City will furnish appropriate auxiliary aids and services where necessary to afford an inchvidual w~th a
disability an equal opportunity to participate in and enjoy the benefits of a service, program or activity
conducted by the City. Contact Doug Randolph at 243-7127 (voice), 24 hours prior to the program or
activity in order for the City to reasonably accommodate your request. Adaptive listening devices are
available for meetings in the Commission Chambers.
SPECIAL MEETING AGENDA
Pursuant to Section 3.12 of the Charter of the City of Delray Beach, Mayor David W. Schmidt has
instructed me to announce a Special Meeting of the City Commission to be held for the following
purposes:
(;ONTRACT FOR SALE AND PURCHASE OF PROPERTY: Consider approval of contract
to sell 54 acres of City owned properties located between Barwick Road and Military Trail and
Contract for Sale and Purchase between the City and D.R. Horton, Inc. in the amount of
$7,321,000.00. (Public Heating)
2. Commission Comments.
POSTED: FEBRUARY 20, 2003
Please be advised that if a person decides to appeal any decision made by the City Commission with
respect to any matter considered at this meeting, such person will need to ensure that a verbatim record
includes the testimony and evidence upon which the appeal is based. The City neither provides nor
prepares such record.
[ITY OF DELA;lY BE;ICH
CITY ATTORNEY'S OFFICE
N~~DATE:
1993
FROM:
200 NW 1st AVENUE · DELRAY BEACH, FLORIDA 33444
TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755
MEMORANDUM
February 7, 2003
City Commission
David Harden, City Manager
Susan A. Ruby, City Attorney
SUBJECT: Contract for Sale and Purchase Between the City and D.R. Horton,
Inc.
The attached contract has been advertised per Section 36.35 of the Code of
Ordinances for a Public hearing on February 18, 2003.
The contract's essential terms are as follows:
1. The City will receive $7,321,000.00 (which will be adjusted upward by 1%
each month the closing extends past the 12 month time limit for closing).
2. The closing shall be 15 days after all approvals are received, but no later than
12 months from the date of execution of the contract.
3. The buyer shall construct no fewer then 82 townhouses, 101 single family
homes and 81 triplex units at cost ranges set forth in the RFP.
4. The City has the right to review the architectural design of the project and the
right of reasonable approval of homeowner association documents.
5. The City has the right to repurchase after closing, if 51 structures (including 20
single-family) structures are not commenced within 120 days after closing.
The City shall have the right to terminate the contract if the buyer does not file
for site plan and plat approval within 90 days of the effective date of the
contract or if closing does not occur within 12 months or if the City does not
receive certification of a financing commitment within 90 days after the
effective date of the contract.
7. The Buyer is buying "As-Is". The Buyer has 30 days from the date of the
contract to inspect and to cancel if not satisfied with the property.
Please place the cp.~tract on the February 18, 2003 City Commission agenda for
appr°v~z~--~ '~)
SAR:ci (~) ~ '~
Cc: Barbara G~rito, City Clerk
Paul Romanowski
Tony Palumbo
CONTRACT FOR SALE AND PURCHASE
PARTIES: CITY OF DELRAY BEACH, a Florida municipal corporation, ("Seller"), of
100 N.W. 1st Avenue, Delray Beach, Florida 33444 and D.R. HORTON, INC., a
Delaware corporation, successor by merger to Continental Homes of Florida, Inc., a
Florida corporation, ("Buyer"), of 1192 East Newport Center Drive, Suite 150, Deerfield
Beach, FL 33442, hereby agree that the Seller shall sell and Buyer shall buy the
following described Real Property and Personal Property (collectively "Property") upon
the following terms and conditions, which INCLUDE the Standards for Real Estate
Transactions ("Standard(s)") on the reverse side hereof or attached hereto and riders
and any addenda to this Contract for Sale and Purchase ("Contract"):
I. DESCRIPTION: See Exhibit "A"
II.
PURCHASE PRICE PAID TO CITY ....................... $7,321,000.00'
*Subject to increase as provided in the Addendum attached
hereto, Section XI (L)(2)
PAYMENT:
(a)
Deposit to be paid within five (5) business days
following the "Effective Date" to be held in escrow by
Robert W. Federspiel, P.A. Trust Account in the
in the amount of ................................. $
350,000.00
(b)
Balance to close (U.S. cash, LOCALLY DRAWN
certified or cashier's check), subject to adjustments
and prorations .................................. $6,971,000.00
II1. TITLE EVIDENCE: Within thirty (30) business days after the execution of this
Contract, Seller shall, at Seller's expense, deliver to Buyer or Buyer's attorney, in
accordance with Standard A, (CHECK (1) or (2)): (1) ~ abstract of title or (2) X
title insurance commitment and, after closing, owner's policy of title insurance.
IV. CLOSING DATE:p,a~,JE ADDENDUM TO CONTRACT FOR SALE AND
PURCHASE CLAUSE~A'T'I~HED HERETO.
V. TIME FOR ACCEPTANCE; EFFECTIVE DATE; FACSIMILE: If this offer is not
executed by and delivered to all parties OR FACT OF EXECUTION communicated in
writing between the parties on or before the deposit(s) will,
at Buyer's option, be retumed to Buyer and the offer withdrawn. The date of this
Contract ("Effective Date") will be {he date when the last one of the Buyer and the
Seller has signed this offer. A facsimile copy of this Contract and any signatures
thereon shall be considered for all purposes as originals.
VI. RESTRICTIONS; EASEMENTS; LIMITATIONS: Buyer shall take title subject to:
the following permitted exceptions:
A. Zoning, restrictions, prohibitions and other requirements imposed by
governmental authority;
B. Restrictions and matters appearing on the plat or otherwise common to
the subdivision;
C. Taxes for year of closing and subsequent years;
D. Those matters provided for in this Contract for Sale and Purchase which
are intended to be included in the instrument of conveyance or to survive the closing.
VII. OCCUPANCY: The property shall be unoccupied as of the date of closing.
Seller agrees to deliver occupancy of Property at time of closing unless otherwise
stated herein. If occupancy is to be delivered before closing, Buyer assumes all risk of
loss to Property from date of occupancy, shall be responsible and liable for
maintenance from that date, and shall be deemed to have accepted Property in their
existing condition as of time of taking occupancy unless otherwise stated herein or in a
separate writing.
VIII. TYPEWRITTEN OR HANDWRITTEN PROVISIONS: Typewritten or handwritten
provisions shall control all printed provisions of Contract in conflict with them.
IX. RIDERS: (CHECK if any of the following Riders are applicable and are attached
to this Contract):
b)
c)~
e)
Coastal Construction Control Line Rider
Condominium Rider
Foreign Investment in Real Property Tax Act Rider
Insulation Rider
FHA/VA Rider
Other:
X. ASSIGNABILITY: (CHECK (1) or (2)): Buyer (1) may assign or (2)
X may not assign Contract unless the assignment is to DR Horton, Inc., the
parent company of Buyer, and DR Horton, Inc. shows it has the financial ability to
complete the project.
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XI.
SPECIAL CLAUSES: (CHECK (1) or (2)): Addendum (1) ~ is attached OR (2)
is not applicable.
XII. TIME IS OF THE ESSENCE OF THIS CONTRACT.
XIII. DISCLOSURES: Buyer~ acknowledges or X does not acknowledge
receipt of the agency/radon/compensation and estimated closing costs disclosures.
BUYER'S INITIALS
D.R. Horton, Inc., a Delaware corporation,
Successor by merger to Continental
Homes of Florida, Inc., a Florida corporation
Print Name~~V..:
Title:
Date:
By: ~
Print~J~rn.e~~,
T~tle:
Date:
CITY OF DELRAY BEACH, FLORIDA
By:
David W. Schmidt, Mayor
Date:
ADDENDUM TO CONTRACT FOR SALE AND PURCHASE
SELLER:
CITY OF DELRAY BEACH, a Flodda municipal corporation
BUYER:
D.R. Horton, Inc., a Delaware corporation, successor by merger to
Continental Homes of Flodda, Inc., a Florida corporation
XI. SPECIAL CLAUSES; ADDENDA (Continued):
A. FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT ("FIRPTA"):
Except as otherwise provided herein, Buyer, pursuant to Section 1445 of the Internal
Revenue Code of 1986, as amended ("Section 1445") and the regulations promulgated
thereunder ("Regulations"), shall be required to withhold such amount as is necessary
to comply with the Regulations and shall timely remit to the Internal Revenue Service
the amount so withheld along with properly completed remittance forms. If, however, on
or before closing, Seller provides Buyer with (1) an Affidavit of Non-Foreign Status
regarding Seller, (2) a Notice of Non-Recognition Treatment, or (3) a Withholding
Certificate establishing that no, or a reduced, amount of federal income tax is required
to be withheld under Section 1445 (collectively '~Nithholding Document")in proper form
as required by the Regulations, and Buyer has no knowledge or notice that the
Withholding Document furnished by Seller is false, as determined in accordance with
the Regulations, then Buyer shall not be required to withhold any portion of the amount
payable to Seller or shall be allowed to withhold such lesser amount as is required by
the applicable Withholding Document, as the case may be, and shall submit the
amount so withheld to the Internal Revenue Service along with properly completed
remittance forms.
In addition, if Seller, prior to closing, satisfies those Regulations which
concern the filing of an application for a Withholding Document with the Internal
Revenue Service and gives notice of such pursuant to the Regulations to Buyer and
said application is still pending as of the date of closing, then Buyer shall cooperate with
Seller's reasonable request to escrow any amount withheld at closing pursuant to the
Regulations, at Seller's expense, until a final determination is made regarding said
application at which time said amount shall be disbursed in accordance with said final
determination.
In the event insufficient cash is paid by Buyer at closing to fund the
Buyer's withholding obligation, Seller shall deliver to Buyer at closing the amount of
additional cash necessary to satisfy the withholding obligation. In the event Buyer
determines after the closing that the Withholding Document provided by Seller to Buyer
relieving Buyer entirely of Buyer's duty to withhold or reducing the amount required to
be withheld by Buyer was false, Buyer shall have the authority to withhold from any
additional amounts due to Seller in accordance with the Regulations, all or such portion
of said additional amount due to Seller as Buyer deems necessary to comply with
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Section 1445 and to remit the amount so withheld and report such information as
required under the Regulations to the Internal Revenue Service.
B. RADON GAS: Radon gas is naturally occurring radioactive gas that,
when it is accumulated in a building in sufficient quantities, may present health dsks to
persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Flodda. Additional information regarding
radon and radon testing may be obtained from your county public health unit. The due
diligence inspections provided for in Section (C) below are hereby deemed to include
an inspection for radon gas.
C. DUE DILIGENCE/BUYER'S RIGHT TO CANCEL: The parties
acknowledge and agree that the Property is being sold in its "as-is" condition and, in
lieu of the provisions set forth in Standards D and M, the Buyer shall have the right to
make a full and complete inspection of the subject premises and improvements thereon
within thirty (30) days from the effective date of this Contract. In the event the Buyer
determines within said inspection period that the property shall be in a condition
unacceptable to Buyer, the Buyer shall have the right to cancel this Contract by
delivering written notice thereof within said inspection period to Seller and receive a full
refund of his deposit paid under this Contract. In the event the Buyer does not cancel
this Contract as aforesaid, the Buyer expressly waives any and all claims against Seller
with respect to the condition of the subject property and the Buyer accepts the subject
property in its "as is" condition. Notwithstanding the foregoing, Seller represents that to
the best of Seller's knowledge there are no latent defects known to Seller, the existence
of which are not readily discoverable by standard due diligence undertakings.
D. Subject to the provisions of Section L.2 of this Addendum, the Closing of
the transaction herein contemplated shall occur on the first business day falling on the
fifteenth (15th) day following the satisfaction of the last of the conditions precedent to
Closing hereinafter numbered as items I and 2, the satisfaction of each of which Buyer
shall exert diligent effort to obtain:
1. Buyer having certified to Seller, within ninety (90) days from the
effective date of this Contract, Buyer's receipt of a financing commitment for the lending
of funds to be utilized to acquire the Property and to construct and develop the Project
(as hereinafter defined), as generally described in Buyer's response to the Request for
Proposals ("RFP") issued by the Seller, which response was accepted by Seller. Buyer
shall deliver to Seller a true copy of the financing commitment evidencing Buyer's
lender's or lenders' acknowledgment and agreement to comply with the requirement of
this Contract together with the release of the Property from the lien of the lender's or
lenders' mortgage and other collateralizing instruments on the Project, in the event
Seller shall elect to exercise its buy-back rights, as provided in Paragraph G herein, In
the event the Buyer shall not have obtained such financing commitment as above
described within said time, after Buyer having utilized reasonable efforts, either party
may elect to terminate this Contact by providing written notice to the other by delivering
such notice within five (5) days thereafter and Buyer shall be entitled to a refund of the
deposit. Additionally, if, through no fault or omission of the Buyer, circumstances of the
project or the loan shall change subsequent to the end of such 90-day period, such that
Buyer's lender(s) will be unwilling or unable to close the loan pursuant to the terms of
the financing commitment, then Buyer may terminate this Contract and receive a refund
of the deposit.
2. Buyer having obtained (or, at Buyer's sole discretion, having
received satisfactory confirmation of Buyer's ability to obtain) all approvals, consents
and permits necessary for the development and construction of the Project, including
but not limited to, site plan acceptance, approval of the plat, together with confirmation
of the availability of issuance of all permits and licenses, as applicable from Seller, the
City of Delray Beach ("City"), the County of Palm Beach and such other governmental
authorities and/or agencies for the construction and operation of the Project as may be
required by law, rule or ordinance and as defined in this Contract upon the conveyance
of the Property on the closing of this Contract. Seller does not warrant that any
approvals will be granted nor that such approvals shall be comprehensive as to Buyer's
needs for the development of this Project and Buyer shall assume full responsibility of
securing the approvals and determining the acceptability of such approvals.
E. The development of the Project shall be made subject to the following
minimum mandates and qualifications:
units.
Buyer shall construct and develop not fewer than 82 townhouse
units.
Buyer shall construct and develop not less than 101 single family
81 units.
Buyer shall construct and develop 27 triplex's containing a total of
the RFP.
Buyer shall offer the above products in the cost ranges set forth in
In the event Buyer shall not obtain the required approvals for the development of such
project after the exercise of reasonable diligence, either party may terminate this
Contract by delivering written notice to the other party, in accordance with the
timeframes for same set forth in Paragraph K hereinafter and Buyer shall receive a
refund of the deposit.
F. Buyer agrees to grant to Seller authority to approve the initial architectural
design of the Project, in addition to its governmental approval authority.
G. SELLER'S RIGHT TO REPURCHASE PROPERTY. Seller expressly
reserves the right at its sole option and election, to repurchase the Property for the
same purchase Price as paid by Buyer to Seller hereunder, plus reimbursement of
costs for improvements to the Property relating solely to the site work for the Project
and for the construction of structures in the event the Buyer shall fail to commence
construction of the Project; subject, however, to extensions for delays attributable to
force majeure as hereinafter provided. For purposes of this Section, the term
"commence construction" shall mean: (i) the initiation and continuance by Buyer of site
preparation work for the Project which shall, for purposes of this Section F, include
excavation, fencing of the site, installation of a construction trailer, clearing and
relocation of utilities on the Project, within the initial thirty (30) days following the later to
occur of (a) the Closing or (b) the issuance of the building permit(s) requisite to
performing site work; and (ii) the commencement of the installation of the concrete
foundation for at least fifty-one (51) of the structures to be constructed within the
Project, with a minimum of twenty (20) of the structures being single family structures,
within one hundred twenty (120) days of the Closing and the issuance of the building
permits for the construction of the structures. Notwithstanding the provisions of the
immediately preceding sentence, the commencement dates provided above may be
extended on a day-for-day basis for delays occasioned by acts of God, catastrophe and
inclement weather which is in excess of those days normally forecasted by the National
Weather Service for the given month in South Florida which interfere with construction,
unforeseen physical conditions on the site, unavailability or shortages of material or
labor, labor disputes, govemmental approvals or restrictions or other matters beyond
the reasonable control of Buyer (collectively ~Force Majeure"). The Seller's right to re-
purchase will terminate upon the buyer complying with the provisions in Paragraph
G(i)(ii) above. By the tenth (10) business day of each month, Buyer shall deliver or
cause to be delivered to Seller a list of the days during each proceeding month as to
which Buyer believes the Force Majeure provisions apply and the reasons therefore.
Seller shall, within ten (10) business days after receipt of any such list provide notice to
Buyer as to whether Seller disputes that any of the days set forth on that list would give
rise to an extension of time for Buyer's performance based on Force Majeure. Any
days claimed to be subject to the foregoing Force Majeure provision by Buyer which are
not so disputed by Seller within said time period shall be deemed approved by Seller.
In the event of a dispute between Seller and Buyer as to whether there has been a
commencement of construction as provided in this Section F or whether a claim for
delay is valid or otherwise in connection with this Contract and the transactions
contemplated thereby shall be endeavored to be resolved and settled by mediation
using a mutually acceptable third-party mediator. Such mediator shall be appointed
upon the written demand of either party and agreed upon within ten(10) days after
demand. Upon such appointment, the mediation shall be held within fifteen (15) days
at a mutually agreeable site in Palm Beach County, Florida. The fees and expenses of
such mediator shall be borne equally by the parties hereto. In the event of the failure of
the parties to settle the dispute by mediation or agree upon a mediator, either party may
bdng the dispute for legal redress before the Circuit Court in and for Palm Beach
County, Florida.
H. $1GNAGE. Buyer shall be entitled to place signage announcing the
project on the site prior to closing at Buyer's sole dsk and expense, subject to Buyer
indemnifying and holding Seller harmless for all liability resulting from such signage,
subject to the requirements of the City of Delray each and other applicable
governmental authority.
I. Buyer is responsible for the demolition of the existing structures on the
premises, remove the debris and vegetation (except trees to be preserved) therefrom,
and to fill the site as required at existing grade, at Buyer's expense.
J. Buyer further acknowledges that Buyer shall be required to provide, at
Buyer's expense, such utility easements or replacement easements for the relocated
utilities together with temporary easements to the utilities and facilities on the property
conveyed hereunder which temporary easements shall be terminated on the relocation
of said utilities and the City of Delray Beach's receipt of the permanent easements
thereby as the City of Delray Beach and applicable utilities may reasonably require.
Buyer shall be responsible for all costs of relocating and substituting any required
utilities.
K. The parties each warrant and agree that there is no broker involved in this
transaction nor any finder or other party entitled to a commission or fee.
L. The Seller shall have the right to terminate this Contract in the event the
Buyer shall have failed to have accomplished the following milestones within the times
prescribed:
1. The filing of the complete applications for obtaining site plan
approval and plat approval with the applicable governmental entities within ninety (90)
days from the effective date of this Contract. In the event such event fails to occur and
the Seller elects to cancel such Contract, the Seller shall notify the Buyer of their
election to do so in writing and absent a default of any other terms of this Contract
entitling Seller to retain the deposit of Buyer, the Seller shall return the deposit to Buyer.
2. In the event the Closing of the transaction contemplated under the
Contract shall not have occurred within twelve (12) months from the date of the
execution of this Contract and all Exhibits hereto by the last of the party's signing, either
party may terminate this Contract upon ten (10) days prior written notice to the other,
and in the event Buyer shall not have been in breach or default of its obligations under
this Contract, all deposit monies paid by or on behalf of Buyer shall be returned to
Buyer. Notwithstanding the foregoing, Buyer shall have the right to close at any time
prior to such closing deadline, even in the event that the closing condition described in
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Paragraph D(2) hereinabove has not been satisfied in Buyer's sole discretion, by
providing ten-day prior written notice to Seller. In addition, Buyer shall be required to
have paid all of Buyer's consultants and advisors who have performed services for
Buyer pursuant to this Contract who have any lien dghts as to the Property as
evidenced by obtaining paid receipts therefor and presenting same to Seller. In
addition to the rights herein provided, the purchase price shall be adjusted upward by
1% each month on a compounded basis for each month the closing extends past the
12-month time limit for closing unless the contract has been otherwise terminated.
M. The instrument of conveyance shall reserve unto the Seller the right of a
reasonable approval of all homeowner association documents and developer imposed
restrictions to be prepared and recorded in the Public Records relative to the subject
Project. Such approval or rejection shall be given by Seller within twenty-one (21) days
following submission to Seller by Buyer of all required information and submittals for
such requested approval. In the event the request is rejected, the Seller shall state the
reasons therefor and Buyer shall be permitted to re-submit such documentation for
approval until such time as it is approved. Buyer acknowledges that such homeowner
association documents must require adequate provisions for a capital reserve fund for
the repair and maintenance of the Project.
N. The instrument of conveyance shall further restrict the conveyance or use
of the subject property by any entity whose use or ownership would cause the removal
of the subject property and improvements constructed thereon from the ad valorem tax
rolls.
O. Except as expressly set forth herein, the buyer must comply with its
response to the RFP and the requirements of the RFP that are attached and
incorporated as Exhibit D.
P. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, NEITHER THIS CONTRACT NOR ANY AMENDMENT HERETO SHALL
BE A VALID AND ENFORCEABLE OBLIGATION OF BUYER UNLESS THE
CONTRACT OR AMENDMENT IS EXECUTED BY EITHER ONE OF DONALD J.
TOMNITZ, SAMUEL R. FULLER, OR GORDON D. JONES, EACH AN OFFICER OF
THE BUYER, WITHIN THIRTY (30) DAYS OF THE EXECUTION OF THIS
CONTRACT OR AMENDMENT BY SELLER AND BUYER'S REPRESENTATIVES.
this
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
day of ., 2003.
Signed, sealed and delivered in
the presence of:
ATTEST:
SELLER:
CITY OF DELRAY BEACH, FLORIDA
By:.
City Clerk
David W. Schmidt, Mayor
Approved as to Form:
Date:
City Attomey
WITNESSES:
ESCROW AGENT
Robert W. Federspiel, P.A.
By:.
Robert W. Federspiel
BUYER:
D.R. Horton, Inc., a Delaware
corporation, successor by merger to
Continental Homes of Florida, Inc., a
Florida oration
Paul Romanowski
By: ~
~rG_0rd. on ,D~/5,Jon. e,s'
Regional President
BUYER'S ADDRESS:
1192 East Newport Center Drive, #150
Deerfield Beach, FL 33442
Telephone: (954)428-4854
Facsimile: (954) 428-8330
CORPORATE APPROVAL:
Title: ~/~-
STANDARDS FOR REAL ESTATE TRANSACTIONS
A. Evidence of Title: (1) An abstract of title prepared or brought current by a
reputable and existing abstract firm (if not existing then certified as correct by an existing firm) purporting
to be an accurate synopsis of the instruments affecting title to Real Property recorded in the public records
of the county wherein Real Property is located, through Effective Date and which shall commence with the
eadiest public records, or such later date as may be customary in the county. Upon closing of this
transaction the abstract shall become the property of Buyer, subject to the right of retention thereof by first
mortgagee until fully paid. (2) ^ title insurance commitment issued by a Florida licensed title insurer
agreeing to issue to Buyer, upon recording of the Warranty Deed to Buyer, an owner's policy of title
insurance in the amount of the purchase price, insuring Buyer's title to real property, subject only to liens,
encumbrances, exceptions or qualification set forth in this Contract and those which shall be discharged
by Seller at or before closing. Seller shall convey a marketable title subject only to liens, encumbrances,
exceptions or qualifications set forth in this Contract. Marketable title shall be determined according to
applicable title standards adopted by authority of The Florida Bar and in accordance with law. Buyer shall
have 30 days, if abstract, or 5 days, if title commitment, from date of receiving evidence of title to examine
it. If title is found defective, Buyer shall, within 3 days, notify Seller in writing specifying defect(s). If the
defect(s) render title unmarketable, Seller will have 120 days from receipt of notice within which o remove
the defect(s), failing which Buyer shall have the option of either accepting the title as it then it is or
demanding a refund of deposit(s) paid which shall immediately be returned to Buyer; thereupon Buyer and
Seller shall release one another of ail further obligations under the Contract. Seller will, if title is found
unmarketable, use diligent effort to correct defect(s) in title within the time provided therefor, including the
bringing of necessary suits.
B. Purchase Money Morteacm; Security A~reement to Seller: A purchase money
mortgage and mortgage note to Seller shall provide for a 30 day grace period in the event of default if a
first mortgage and a 15 day grace period if second or lesser mortgage; shall provide for right of
prepayment in whole or in part without penalty will not permit acceleration or interest adjustment in event
of resale of Real Property; shall require all prior lien and encumbrances to be kept in good standing and
forbid modifications of or future advances under prior mortgage(s); and the mortgage note and secudty
agreement shall be otherwise in form and content required by Seller; but Seller may only require clauses
customarily found in mortgages, mortgage notes, and security agreements generally utilized by saving and
loan institutions, or state or national banks located in the county wherein Real Property is located. All
Personalty and leases being conveyed or assigned will, at Seller's option, be subject to the line of a
security agreement evidenced by recorded financing statements. If a balloon mortgage, the final payment
will exceed the periodic payments thereon.
C. Survey: Buyer, at Buyer's expense, within time allowed to deliver evidence of
title and to examine same, may have Real Property surveyed and certified by a registered Florida
surveyor. If survey shows encroachment on Real Property or that improvements located on Real Property
encroach on setback lines, easements, lands of others, or violate any restrictions, Contract covenants or
applicable governmental regulation, the same shall constitute a title defect.
1!
E. Ingress and Egress: Seller warrants and represents that there is ingress and
egress to the Real Property sufficient for the intended use as described in Paragraph VII hereof, title to
which is in accordance with Standard A.
F. Liens: Seller shall furnish to Buyer at time of closing an affidavit attesting to the
absence, unless otherwise provided for herein, of any financing statements, claims of lien or potential
lienors known to Seller and further attesting that there have been no improvements or repairs to property
for ninety (90) days immediately preceding date of closing. If property has been improved, or repaired
within that time, Seller shall deliver releases or waivers of mechanics' liens executed by all general
contractors, subcontractors, suppliers, and materialmen in addition to Seller's lien affidavit setting forth the
names of all such general contractors, subcontractors, suppliers and materialmen and further affirming
that all charges for improvements or repairs which could serve as a basis for a mechanic's lien or a claim
for damages have been paid or will be paid at closing.
G. Place of Closing: Closing shall be held in the county where Real Property is
located, at the office of the attorney or other closing agent designated by Seller.
H. Time: Time periods herein of less than six (6) days shall in the computation
exclude Saturdays, Sundays and state or national legal holidays, and any time period provided for herein
which shall end on Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the next business day.
I. Documents for Closing: Seller shall fumish warranty deed, bill of sale,
mechanic's lien affidavit, assignments of leases, tenant and mortgage estoppel letters, and corrective
instruments. Buyer shall furnish closing document, mortgage, mortgage note, security agreement, and
financing statements.
J. Expenses: Documentary stamps on the warranty deed and recording corrective
instruments shall be paid by'Buyer. Documentary stamps, intangible tax and recording purchase money
mortgage to Seller, warranty deed and financing statements shall be paid by Buyer.
K. Prorations; credits: Taxes, assessments, rent, interest, insurance and other
expenses and revenue of property shall be prorated through day before closing. Buyer shall have the
option of taking over any existing policies of insurance, if assumable, in which event premiums shall be
prorated. Cash at closing shall be increased or decreased as may be required by prorations. Prorations
will be made through day prior to occupancy if occupancy occurs before closing. Advance rent and
security deposits will be credited to Buyer and escrow deposits held by mortgagee will be credited to
Seller. Taxes shall be prorated based on the current year's tax with due allowance made for maximum
allowable discount, homestead and other exemptions. If closing occurs at a date when the current year's
milage is not fixed, and current year's assessment is available, taxes will be prorated based upon such
assessment and the prior year's milage. If current year's assessment is not available, then taxes will be
prorated on the prior year's tax. If there are completed improvements on Real Property by January 1st of
year of closing which improvements were not in existence on January 1st of the prior year then taxes shall
be prorated based upon the prior year's milage and at an equitable assessment to be agreed upon
between the parties, failing which, request will be made to the County Property Appraiser for an informal
assessment taking into consideration available exemptions. Any tax proration based on an estimate may,
at request of either Buyer or Seller, be subsequently re-adjusted upon receipt of tax bill on condition that a
statement to that effect is in the closing statement.
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L. Special Assessment Liens: Certified, confirmed and ratified special
assessment liens as of date of closing (and not as of Effective Date) are to be paid by Seller. Pending
liens as of date of closing shall be assumed by Buyer. If the improvement has been substantially
completed as of Effective Date, such pending lien shall be considered as certified, confirmed or ratified
and Seller shall, at closing, be charged an amount equal to the last estimate of assessment for the
improvement by the public body.
N. Risk of Loss: If the property is damaged by fire or other casualty before closing
and cost of restoration does not exceed three percent (3%) of the assessed valuation of the property, cost
of restoration shall be an obligation of the Seller and closing shall proceed pursuant to the terms of
contract with restoration costs escrowed at closing. If the cost of the restoration exceeds three percent
(3%) of the assessed valuation of the improvements so damaged, Buyer shall have the option of either
taking property as is, together with either the three percent (3%) or any insurance proceeds payable by
virtue of such loss or damage, or of canceling the Contract and receiving return of deposit(s).
O. Proceeds of Sale; Closing Procedure: The Warranty Deed shall be recorded
upon clearance of funds. If abstract evidence of title shall be continued at Buyer's expense to show title in
Buyer without any encumbrances or charge which would render Seller's title unmarketable from the date
of the last evidence. Proceeds of the sale shall be held in escrow by Seller's attorney or by such other
mutually acceptable escrow agent for a period of not longer than 5 days from and after closing date. If
Seller's title is rendered unmarketable, through no fault of Buyer, Buyer shall, within the five day period,
notify Seller in writing of any of the defect and Seller shall have 30 days from the date of receipt of such
notification to cure the defect. If Seller fails to timely cure the defect, all deposit(s), upon written demand
by Buyer and within 5 days after demand, shall be returned to Buyer and simultaneously with such
repayment, Buyer shall return Personalty and vacant Real Property and convey it to Seller by warranty
deed. If Buyer fails to make timely demand for refund, Buyer shall take title as is, waiving all rights against
Seller as to any intervening defect except as may be available by Buyer by virtue of warranties contained
in the warranty deed. If a portion of the purchase price is to be derived from institutional financing or
refinancing, requirements of the lending institution as to place, time of day and procedures for closing, and
for disbursement for mortgage proceeds shall control over contrary provision in this Contract. Seller shall
have the right to require from the lending institution a written commitment that it will not withhold
disbursement of mortgage proceeds as a result of any title defect attributable to Buyer-mortgagor. The
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escrow and closing procedure required by the standard may be waived if title agent insures adverse
matters pursuant to Section 627.7841, F.S. 1989, as amended.
P. Escrow: Any escrow agent ("Agent") receiving funds or equivalent is authorized
and agrees by acceptance of them to deposit them promptly, hold same in escrow and, subject to
clearance, disburse them in accordance with terms and conditions of Contract. Failure of clearance of
funds shall not excuse Buyer's performance. If in doubt as to Agent's duties or liabilities under the
provisions of Contract, Agent may, at Agent's option, continue to hold the subject matter of the escrow
until the parties mutually agree to its disbursement, or until a judgment of a court of competent jurisdiction
shall determine the rights of the parties or Agent may deposit with the clerk of the circuit court having
jurisdiction of the dispute. Upon notifying all parties concemed of such action, all liability on the part of
Agent shall fully terminate, except to the extent of accounting for any items previously delivered out of
escrow. If a licensed real estate broker, Agent will comply with provisions of Chapter 475, F.S. (1989), as
amended. Any suit between Buyer and Seller where Agent is made a party because of acting as Agent
hereunder, or in any suit wherein Agent interpleads the subject matter of the escrow, Agent shall recover
reasonable attomey's fees and costs incurred by the fees and costs to be paid from and out of the
escrowed funds or equivalent and charged and awarded as court costs in favor of the prevailing party.
Parties agree that Agent shall not be liable to any party or person for misdelivery to Buyer or Seller of
items subject to this escrow, unless such misdelivery is due to willful breach of contract or gross
negligence of Agent.
Q. Attorney's Fees; Costs: In any litigation arising out of this contract, the
prevailing party in such litigation which for the purposes of this standard, shall include Seller, Buyer, listing
broker, Buyer's broker and any sub-agents to the listing broker or Buyer's broker, shall be entitled to
recover reasonable attorney's fees and costs.
R. Failure of Performance: If Buyer fails to perform this Contract within the time
specified (including payment of all deposit(s)), the deposit(s) paid by Buyer and deposit(s) agreed to be
paid, may be retained by or for the account of Seller as agreed upon liquidated damages, consideration
for the execution of this Contract and in full settlement of any claims; whereupon, Buyer and Seller shall
be relieved of all obligations under Contract. If, for any reason other than failure of Seller to make Seller's
title marketable after diligent effort, Seller fails, neglects or refuses to perform this Contract, the Buyer
shall elect to receive the return of Buyer's deposit(s) or Buyer may elect to seek specific performance.
S. Contract Not Recordable; Persons Bound; Notice: Neither this Contract nor
any notice of it shall be recorded in any public records. This Contract shall bind and inure to the benefit of
the parties and their successors in interest. Whenever the context permits, singular shall include plural
and one gender shall include all. Notice given by or to the attorney for any party shall be as effective as if
given by or to that party.
T. Conveyance: Seller shall convey title to Real Property by statutory Warranty,
trustees, personal representative's or guardian's deed, as appropriate to the status of Seller, subject only
to matters contained in Paragraph VII and those otherwise accepted by Buyer. Personalty shall, at
request of Buyer, be transferred by an absolute bill of sale with warranty of title subject only to such
matters as may be otherwise provided for herein.
U. Other A,qreements: No prior or present agreements or representations shall be
binding upon Buyer or Seller unless included in this Contract. No modification or change of this Contract
shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to
be bound by it.
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V. Warranties: Seller warrants that there are no facts known to Seller materially
affecting the value of the Real Property which are not readily observable by Buyer or which have not been
disclosed to Buyer.
EXHIBIT "A"
LAND DESCRIPTION
PROPERTY CONTROL NO. 00-42-46-12-00-000-3020 (PARCEL 2)
The West % of the Southeast ¼ of the Southwest ¼ of the Northwest ¼ of Section 12,
Township 46 South, Range 42 East, Palm Beach County, Florida.
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3210 (PARCEL 3)
The East % of the Southeast ¼ of the Southwest ¼ of the Northwest ¼ of Section 12,
Township 46 South, Range 42 East, Palm Beach County, Florida
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3201 (PARCEL 4)
The westerly three and one third (3 1/3) acres of the following described property:
The Southwest quarter of the Southeast quarter of the Northwest quarter of Section 12,
Township 46 South, Range 42 East, Palm Beach County, Florida.
LESS the South 40 feet thereof as conveyed to Lake Worth Drainage District in O.R.
Book 1933, Page 1301, Public Records of Palm Beach County, Flodda, subject to an
easement for road and utility type purposes over and across the north 20 feet of said
property.
Also described as:
The westerly 232.13 feet of the Southwest quarter of the Southeast quarter of the
Northwest quarter of Section 12, Township 46 South, Range 42 East, Palm Beach
County, Flodda.
LESS the South 40 feet thereof as conveyed to Lake Worth Drainage Distdct in O.R.
Book 1933, Page 1301, Public Records of Palm Beach County, Florida, subject to an
easement for road and utility type purposes over and across the north 20 feet of said
property.
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3025 (PARCEL 8)
East half of the Northeast quarter of the Southwest quarter of the Northwest quarter,
Section 12, Township 46 south, Range 42 East, Palm Beach County, Florida.
Together with perpetual easements for ingress and egress, recorded in Official Records
Book 1709, Page 700 of the Public Records of Palm Beach County, Florida.
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3220 (PARCEL 9)
West % of the Northwest ¼ of the Southeast ¼ of the Northwest ¼ of Section 12,
Township 46 South, Range 42 East, Palm Beach County, Florida.
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3023 (PARCEL 10)
The West % of the Southwest ¼ of the Northeast ¼ of the Northwest ¼ of Section 12,
Township 46 South, Range 42 East, LESS the East 25 feet right-of-way.
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3021 (PARCEL 11)
The East % of the Northwest ¼ of the Southeast ¼ of the Northwest ¼ of Section 12,
Township 46 South, Range 42 East, Palm Beach County, Florida.
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3026 (PARCEL 17)
The Northwest ¼ of the Northeast ¼ of the Northwest ¼ of Section 12, Township 46
South, Range 42 East.
Together With:
The East 25 feet of the West ½ of the Southwest ¼ of the Northeast ¼ of the Northwest
¼ of Section 12, Township 46 South, Range 42 East, Palm Beach County, Florida.
TOGETHER WITH:
PROPERTY CONTROL NO. 00-42-46-12-00-000-3180 (PARCEL 18)
The Northeast ¼ of the Northeast ¼ of the Northwest ¼ of Section 12, Township 46
South, Range 42 East, LESS the East 40 feet thereof for the county road right-of-way
purposes, LESS the north 140 feet thereof, and also LESS the north 299 feet of the east
249 feet of the Northeast ¼ of the Northeast ¼ of the Northwest ¼ of said Section 12,
Township 46 South, Range 42 East, Palm Beach County, Florida.
Said lands situate in Palm Beach County, Florida and containing 2,110,942 square feet
(48.46 acres ) more or less.
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