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Res 39-07 RESOLUTION NO. 39-07 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO PURCHASE FROM SELLER CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, AS DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE SELLER AND THE CITY OF DELRAY BEACH, FLORIDA. WHEREAS, the Seller hereinafter named desires to sell the property hereinafter described to the City of Delray Beach Florida, for community facility or park purposes; and WHEREAS, it is in the best interest of the City of Delray Beach, Florida, to purchase said property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City Commission of the City of Delray Beach, Florida, as Buyer, hereby agrees to purchase from Cannery Row, LLC, as Seller, fora purchase price not to exceed Five Hundred Thirty Thousand and 00/100 Dollars ($530,000.00), and other good and valuable consideration; said parcel with structure being more particularly described as follows: Lot 12, CANNERY ROW, according to the Plat thereof recorded in Plat Book 109, Page 133, Public Records of Palm Beach County Florida or the City Commission of the City of Delray Beach, Florida, as Buyer, hereby agrees to purchase from Cannery Row, LLC, as Seller, fora purchase price of Two Hundred Thousand and 00/100 Dollars ($200,000.00), and other good and valuable consideration; said parcel, without a structure, being more particularly described as follows: Lot 12, CANNERY ROW, according to the Plat thereof recorded in Plat Book 109, Page 133, Public Records of Palm Beach County Florida or the City Commission of the City of Delray Beach, Florida may terminate the purchase and sale agreement without purchasing any property. f \ Section 2. 'T'hat the terms and conditions contained in the contract for sale and purchase and addenda thereto between the City of Delray Beach, Florida, and the Seller as hereinabove named are incorporated herein as Exhibit "A". PASSED AND ADOPTED in regular session on this 24~ day of ~, 2007. ATTEST: ~• ~~~~„~ City Clerk ~~ ~~a,~ MAYOR 2 RES. NO. 39-07 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: R. BRIAN SHUTT, ASST. CITY ATTORNEY THROUGH: CITY ATTORNEY DATE: JULY 12, 2007 SUBJECT: AGENDA ITEM #' Q ~ -REGULAR MEETING OF JULY 24, 2007 PURCHASE AND SALE AGREEMENT WITH CANNERY ROW RESOLUTION 39-07 ITEM BEFORE COMMISSION The attached purchase and sale agreement with Cannery Row LLC is before the City Commission for its consideration. The agreement provides the City may purchase the community facility shell unit in the Cannery Row Project for $530,000.00; purchase just the land without any structure for $200,000.00 or not purchase anything. The City will not be required to make a decision on which option to select until it has received notice from Cannery Row, at that time the City will have 60 days in which to decide. We are not anticipating receiving such notice until the developer is ready to construct the town homes along N.E. 2"d Avenue. It should be noted that we are required to execute the purchase and sale agreement within 120 days of the execution of the developer's agreement, which is no later than August 29, 200?. If the Commission fails to execute the purchase and sale agreement, the developer's agreement shall be null and void, which if the developer's agreement is no longer in existence, the parties would either need to come to terms on a new developer's agreement or the developer would be required to construct commercial or retail uses fronting the west side of N.E. 2"d Avenue. Once the Commission approves this purchase and sale agreement, the requirements set forth in the Ordinance and Developer's Agreement would be satisfied, therefore, the City may not require the developer to construct any commercial or retail use on the property. BACKGROUND On October 3, 2006 the Commission approved Ordinance No. 47-06 which provided that the developer of the Cannery Row Project has the option to not provide non-residential uses fronting the west side of N.E. 2"d Avenue between N.E. 3`d Street and N.E. 4`~ Street provided that the developer enters into a developers agreement acceptable to the City. At its May 1, 2007 meeting the Commission approved a Developer's Agreement with Cannery Row LLC that provided retail space would not be required on the first floor of the development adjacent to N.E. 2nd Avenue if the developer dedicated park land to the City at the north east corner of the project in exchange for the City waiving its recreation impact fees for the project; and developer and City enter into a purchase and sale agreement that provides the City may purchase the community facility shell unit in the Cannery Row Project for $530,000.00; purchase just the land without any structure for $200,000.00 or not purchase anything. If the City purchases the shell unit, the developer has agreed finish the unit at cost. RECOMMENDATION Commission discretion RESOLUTION NO. 39-07 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO PURCHASE FROM SELLER CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, AS DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE SELLER AND THE CITY OF DELRAY BEACH, FLORIDA. WHEREAS, the Seller hereinafter named desires to sell the property hereinafter described to the City of Delray Beach Florida, for community facility or park purposes; and WHEREAS, it is in the best interest of the City of Delray Beach, Florida, to purchase said property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City Commission of the City of Delray Beach, Florida, as Buyer, hereby agrees to purchase from Cannery Row, LLC, as Seller, fora purchase price not to exceed Five Hundred Thirty Thousand and 00/100 Dollars ($530,000.00), and other good and valuable consideration; said parcel with structure being more particularly described as follows: Lot 12, CANNERY ROW, according to the Plat thereof recorded in Plat Book 109, Page 133, Public Records of Palm Beach County Florida or the City Commission of the City of Delray Beach, Florida, as Buyer, hereby agrees to purchase from Cannery Row, LLC, as Seller, fora purchase price of Two Hundred Thousand and 00/100 Dollars ($200,000.00), and other good and valuable consideration; said parcel, without a structure, being more particularly described as follows: Lot 12, CANNERY ROW, according to the Plat thereof recorded in Plat Book 109, Page 133, Public Records of Palm Beach County Florida or the City Commission of the City of Delray Beach, Florida may terminate the purchase and sale agreement without purchasing any property. Section 2. That the terms and conditions contained in the contract for sale and purchase and addenda thereto between the City of Delray Beach, Florida, and the Seller as hereinabove named are incorporated herein as Exhibit "A". PASSED AND ADOPTED in regular session on the day of , 2007. MAYOR Attest: City Clerk RES. NO. 11-07 CANNERY ROW PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into as of this day of , 2007, by and between CANNERY ROW LLC LLC, a Florida limited liability company ("Seller"), and the CITY OF DELRAY BEACH, FLORIDA ("Buyer"). IN CONSIDERATION of the respective agreements hereinafter set forth, Buyer and Seller agree as follows: 1. PURCHASE AND SALE. Subject to the provisions of Section 42 herein, the Cannery Row development consists, generally, of eighty-two (82) Townhomes and common area and recreational amenities related thereto, acity-owned corner park, and acity-owned community facility ("Cannery Row" and/or the "Project"). Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, for the Total Purchase Price set forth below, and on the terms and conditions contained in this Agreement, Lot 12 ("Lot"), as shown on the proposed Plat of Cannery Row ("Plat"), attached hereto as Exhibit "A", together with the community facility ("Community Facility") to be constructed on the Lot pursuant to the floor plans ("Floor Plans") and building elevations ("Elevations"), and related construction specifications ("Construction Specifications") attached hereto as Exhibit "B" and Exhibit "C",respectively. The Lot and Community Facility are sometimes collectively referred to herein as the "Property"; however, the sale of the Lot and Community Facility will be considered a single sale -the Community Facility not being separate from the Lot. The Property address is: To Be Determined. 2. PURCHASE PRICE: Base Purchase Price: $ NOT TO EXCEED $530,000.00 Change Orders, if any: $ N/A Total Purchase Price: (exclusive of Closing Costs, prorations, and any Change Orders not included here): $ 530,000.00 TOTAL PURCHASE PRICE TO BE PAID AS FOLLOWS: Deposit $ 10.00 1St Deposit (10% of the Base Purchase Price): $ N/A 2na Deposit (10% of the Base Purchase Price): $ N/A Upgrade Payment, if any (see Upgrade Addendum): $ N/A Balance of the Total Purchase Price (Due at Closing in local bank cashiers check or received wire transferred funds): $ 529,990.00 3. COST TO BUYER: The Base Purchase Price stated above is intended to be the guaranteed maximum price Buyer shall pay for the Property, as constructed pursuant to the Construction Specifications, as defined herein. Buyer may, at any time until one year from the Closing Date ("Cost Review Period"), and upon reasonable notice to Seller, have access to Seller's financial records relative to the Project in order to determine the true and actual cost to complete the Property in accordance with the Construction Specifications ("Cost"). Cost shall be defined as all costs necessarily incurred by Seller in connection with the acquisition, financing, ownership and construction of the Project and the Property; provided, however, that recreational amenities, and sales and marketing expenses for the Project shall be specifically excluded from any calculation of Cost. In the event Seller determines that Cost shall be less than stated above on or before the Closing Date, Seller shall adjust the Base Purchase to reflect any such reduction in Cost. 4. Deleted. 5. SELLER'S FINANCING. Buyer understands that Seller has obtained, or will obtain, acquisition, construction and other financing with respect to the Project. Buyer agrees that this Agreement, and all modifications and additions thereto, will be subordinate in all respects to the lien and priority of any mortgage (and related security interests) now or hereafter placed on the Property securing such Seller's financing, including all loan renewals, future advances, extensions and modifications. The parties intend that this subordination shall be effective automatically without any further notice to, or action by, Buyer. Buyer acknowledges that, as additional security for any of Seller's financing, Seller may assign all of its rights under this Agreement to its lender(s), including all rights Seller may have to Buyer's Deposit, subject to requirements of applicable laws. 6. CONSTRUCTION SPECIFICATIONS. The Community Facility will be constructed in substantial accordance with the plans, retained in Seller's sales office, and the specifications, attached hereto and made a part hereof as Exhibit "C", as such plans and specifications are amended from time to time. Such plans and specifications, as they are so amended from time to time by Seller, are referred to in this Agreement as the "Construction Specifications". Although Seller will complete construction of the Property substantially in accordance with the Floor Plans, Elevations, and Construction Specifications, Buyer acknowledges that during the planning, design, engineering, and construction for the Project, certain modifications, substitutions, deviations and/or omissions in and to the Property, Project, Floor Plans, Elevations, and Construction Specifications (collectively referred to herein as "Construction Modifications") may occur due to governmental required changes, construction and field conditions, labor or product availability, construction scheduling, and design and specification changes made by Seller in Seller's sole discretion. These changes and adjustments are essential in order to permit all components of the Property to be integrated into a well-functioning and aesthetically pleasing product in an expeditious, cost-efficient, and profitable 2 manner. Accordingly, Seller expressly reserves the right to make Construction Modifications during construction of the Property, and Buyer hereby authorizes Seller to make any such Construction Modifications deemed necessary in Seller's sole discretion without prior notice to Buyer. Buyer further understands and agrees that: (i) exterior finishes, such as paint color, roof color/material, shutter placement/color, window/door placement and designs, light fixtures, railings, and other exterior finishes installed by Seller pursuant to the Construction Specifications, are subject to shadings in color gradations, die lots, etc., and may vary from any samples or illustrations shown to Buyer without prior notice to Buyer; (ii) all representations ofdimensions, materials, equipment, and finishes are approximations of size, materials, equipment, appearances, and finishes, and are all subject to change by Seller in its reasonable discretion without prior notice to Buyer; (iii) changes in the dimensions of rooms, patios and balconies, and the location of utility (including, without limitation, electrical, television and telephone) lead-ins and outlets, doors, windows, air conditioning equipment, ducts and components, lighting fixtures, electric panel boxes and meters, fencing and gates, and the general layout of the Community Facility and any exterior improvements on the Lot are subject to change by Seller in its reasonable discretion without prior notice to Buyer; (iv) many items, finishes, materials, fixtures, equipment, furnishings, window treatments, accessories, upgrades, changes, and other improvements which maybe displayed in any sales model or sales office, or in any marketing or promotional materials, are for display, design and marketing purposes only, and to the extent such items are not included in the Construction Specifications, such items are not included in the Property; (v) if circumstances arise which warrant changes of suppliers, manufacturers, brand names or other items, Seller may substitute materials, finishes, equipment, fixtures, appliances, etc., which are of substantially equivalent quality in Seller's sole opinion, without prior notice to Buyer; (vi) Seller will have complete discretion in landscaping of the Property and the Project; (vii) Seller will have complete discretion with all improvements and amenities situated within the Common Property (as defined in the Homeowner Documents); (viii) the plans and specifications for the Community Facility now or hereafter on file with the applicable governmental authorities may not be identical in detail to the final Floor Plans and the Construction Specifications, and (ix) because of the day-to-day nature of the changes described in this Section 6, the plans and specifications on file with applicable governmental authorities may not include some or any of these changes (there being no legal requirement to file every change with such authorities). The provisions of this section 6 will survive (continue to be effective after) closing. 7. CHANGE ORDERS. BUYER ACKNOWLEDGES THAT SELLER IS NOT OBLIGATED TO PROVIDE UPGRADES, EXTRAS, OPTIONS, OR CHANGE ORDERS OF ANY KIND. If Buyer requests changes to the Construction Specifications that are not included as part of the Construction Specifications ("Change Orders"),Seller may, in its sole and absolute discretion, either: (i) accommodate Buyer's change order request in the manner provided below, or (ii) deny any or all of Buyer's Change Order requests, and Buyer will accept Seller's decision on all change order requests as final. Buyer further understands that in the event Buyer's Change Order request is denied by Seller, the Community Facility will be completed substantially in conformity to the Construction 3 Specifications, and any Approved Upgrades or Approved Change Orders, as defined herein. No Change Orders shall be implemented unless an approved Change Order Addendum ("Change Order Addendum") for any such Change Orders is signed by Buyer and Seller and full payment for such Change Orders, as specified in the Change Order Addendum, is received by Seller ("Approved Change Order"). Buyer acknowledges and agrees that all payments made to Seller in connection with any Approved Change Order shall be not be considered as part of any deposit toward the Total Purchase Price, and any and all such payments are completely non-refundable in all respects; provided, however, if Seller shall fail to include any Approved Change Order in the Property, Buyer's sole remedy and Seller's sole liability shall be to deduct the amount paid by Buyer for any such omitted Approved Change Order from the Total Purchase Price at Closing, provided Buyer has paid Seller for same. Buyer further acknowledges and agrees that Seller's failure to include any Approved Change Order, or non-approved change order request made by Buyer shall not be grounds for: (i) Buyer to delay or postpone the Closing, or Buyer's obligation to close and pay the balance of the Total Purchase Price to Seller, (ii) any reduction of or credit against the Total Purchase Price, or (iii) placing any portion of the Total Purchase Price in escrow. If applicable, Buyer shall have thirty (30) days from the date of Seller's notice to Buyer that the time period for Buyer to make any required finish selections for the Community Facility has started ("Selection Period"). The Selection Period which maybe extended from time-to-time in writing by Seller in Seller's sole discretion. Buyer understands that in the event Buyer fails to provide Seller with any required finish selections within the Selection Period, Seller may complete the Property using such finish selections that Seller shall determine, in its sole discretion without prior notice to Buyer, provided such finishes are consistent with the Construction Specifications. 8. CONSTRUCTION OF THE PROPERTY. Subject to other terms of this Agreement, Seller shall commence construction of the Property as soon as it is reasonablypossible following the issuance of all required building permits, and shall proceed with reasonable diligence throughout the term of construction. Seller agrees that all construction shall utilize new materials (or equivalent quality) and that all such materials shall be in accordance with applicable governmental rules, regulations and building codes, and that all work shall be done in a good and workmanlike manner. Seller shall be responsible for all building permits, impact fees, water and sewer hook-up fees, excluding deposits for utility services which shall be reimbursed by Buyer at Closing. 9. INSPECTION PRIOR TO CLOSING. Prior to Closing, and upon notice to Buyer, Buyer shall be given a reasonable opportunity to inspect the Property with Seller's representative. At that time, Buyer shall present to Seller an inspection statement ("Punch List") signed by Buyer, setting forth any defects in workmanship or materials in the Property which are truly defects in workmanship and materials (the standards for which shall be the construction standards generally prevalent in Palm Beach County, Florida for similar property, which is a commercial shell). Buyer understands and acknowledges that Buyer's setting forth any such perceived defects in workmanship or materials on a Punch List does NOT obligate Seller to repair or warranty any such item(s). Those items on any Punch List that are not equal to the then prevailing construction standards generally 4 prevalent in Palm Beach County, Florida for similar commercial properties, and only those items that are not equal to such standards, as Seller shall determine in Seller's reasonable discretion, shall be considered by Seller as part of the Punch List for which Seller has an obligation for repair and warranty. Seller's failure to perform Seller's obligations hereunder shall not delay, postpone, or otherwise interfere with the Closing. Subject to the construction standards stated above, Seller shall correct and/or complete all work required under the Punch List within sixty (60) days after Closing, at Seller's expense and in a workmanlike manner, subject to the availability of labor and materials, access to the Property after Closing, or events which constitute force majeure. Buyer hereby authorizes Seller to determine the means and methods for making any and all Punch List and warranty related repairs. Buyer further recognizes that although the Property, at Closing, will have received a final certificate of occupancy, Seller may still be in the process of completing certain improvements in the Community Facility, on the Lot, and within the Project. NO ESCROWS OR HOLDBACKS OF CLOSING FUNDS WILL BE PERMITTED. The fact that Seller has to complete work set forth in the Punch List after Closing shall not delay or postpone the Closing, or Buyer's obligation to close and pay the balance of the Total Purchase Price, or be grounds for a reduction of or credit against the Total Purchase Price, or be grounds for deferring or imposing any conditions on Closing, or be grounds for placing a portion of the Total Purchase Price in escrow pending completion of the Punch List items. 10. CLOSING. The term "Closing" refers to the time when Seller delivers the special warranty deed for the Property to Buyer and Buyer delivers to Seller the balance of the Total Purchase Price and any additional amounts owed by Buyer to Seller under this Agreement and for any Approved Upgrades and Approved Change Orders, asset forth herein, or therein, and ownership of Property is transferred from Seller to Buyer (the "Closing"). At Closing, the parties will execute and deliver all documents Seller's closing agent deems necessary or appropriate. Buyer shall not move any personal property onto or take occupancy of the Property until a certificate of occupancy for the Property has been issued by the appropriate governmental agency, and Seller has received the Total Purchase Price in accordance with the terms of this Agreement. Legal and physical possession of the Property shall be delivered to Buyer at Closing. The Closing will occur after issuance of a Certificate of Occupancy for the Community Facility by the City of Delray Beach. Buyer understands that Seller has the right to schedule the date, time and place for the Closing ("Closing Date"); provided, however, that before the Closing Date, Seller must obtain a final certificate of occupancy for the Property. Buyer acknowledges that the common property, any improvements thereon, and all improvements related to the Project need not be completed or have such certificates of completion or occupancy prior to the Closing Date. Buyer will be given at least thirty (30) days' notice of the date, time and place of Closing. Seller is authorized to postpone the Closing for any reason and Buyer will close on the new date, time and place Seller specifies in its notice of postponement (as long as at least 2 days' notice of the new date, time and place are provided to Buyer). A change of time or place of Closing only (that is, one not involving a change of date) will not require any additional notice period. Any formal notice of Closing, and any postponement or rescheduling of the Closing may be given orally, by telephone, facsimile, electronic mail, regular mail or other reasonable means of communication at Seller's option. All such notices 5 to Buyer shall be sent or directed to the address, facsimile, electronic mail address or telephone number (as appropriate), specified on Page 1 of this Agreement unless Seller has received written notice from Buyer of any address change prior to the date Seller's notice is sent, transmitted or given to Buyer. These notices (other than a change of address) will be effective on the date given, transmitted or mailed. An affidavit of one of Seller's employees or agents stating that this notice was given or mailed to Buyer will be conclusive in this regard. If Buyer fails to receive any of these notices or the confirmation because Buyer failed to advise Seller of any change of address, telephone or facsimile number, or electronic mail address, or because Buyer has failed to pick up a letter when Buyer has been advised of an attempted delivery or because of any other reason, Buyer will not be relieved of Buyer's obligation to close on the scheduled date unless Seller agrees in writing to postpone the scheduled date. If Seller agrees in writing to reschedule the Closing at Buyer's request, or if Buyer is a corporation (or other business entity) and Buyer fails to produce the necessary documents establishing proof of the organization, good standing and authorization of representatives, as requested by Seller, and, as a result, Closing is delayed, or if Closing is delayed for any other reason (except for a delay desired, requested or caused by Seller), Buyer agrees to pay at Closing a late funding charge equal to interest, at the then highest applicable lawful rate, on that portion of the Total Purchase Price not then paid to Seller (and cleared), from the date Seller originally scheduled the Closing to the date of actual Closing. Additional late funding charges also may be imposed as stated in this Agreement. All prorations will be made as of the originally scheduled date. BUYER UNDERSTANDS THAT SELLER IS NOT REQUIRED TO RESCHEDULE OR TO PERMIT A DELAY IN CLOSING AND THAT IF BUYER FAILS TO TIMELY CLOSE AS REQUIRED BY THIS SECTION 10, BUYER WILL BE IN DEFAULT UNDER SECTION 16 OF THIS AGREEMENT. 11. TITLE. At Closing, Buyer will receive good and marketable title to the Property, subj ect to the permitted exceptions listed below ("Permitted Exceptions"). At Closing, Buyer will receive the following documents, which Buyer agrees to accept as proof that title is as represented above: A. Title Commitment. A written title commitment from a title insurance company licensed in Florida agreeing to issue Buyer a title insurance policy for the Property (ALTA Owner's Policy with Florida modifications) ("Title Policy"). The title commitment will list the following Permitted Exceptions (exceptions subj ect to which Buyer agrees to take title to the Property): 1. Real property taxes and assessments affecting the Property for the year of Closing, and subsequent years, including any applicable special assessment, community redevelopment or improvement districts; 2. All laws, and all restrictions, covenants, conditions, limitations, agreements, reservations and easements recorded in the public records, or otherwise established with respect to the Project, for example, zoning restrictions, property use limitations and obligations, governmental permits, easements, rights-of--way, plat restrictions and dedications, and agreements relating to utilities, drainage and conservation areas; 6 3. The restrictions, covenants, conditions, easements, liens, terms and other provisions imposed by the documents contained or referred to in the Homeowner Documents, as defined herein, and any amendments thereto (and any other documents which Seller, in its sole discretion, believes to be necessary or appropriate) which will be recorded by Seller now or at any time after the date of this Agreement in the Public Records of Palm Beach County, Florida, and all amendments to any of such documents; 4. Easements in favor of the Association, as defined herein, and public utility providers for general access over and across the Property and the Project, and for the installation, service, repair, and maintenance of all water retention areas, drainage improvements, roads, and all other improvements and utilities serving the Property and the Project; 5. Minor encroachments, if any, into easement areas serving public utilities by Property-related improvements such as air conditioner pads and equipment, roof and balcony overhangs, which are hereby deemed permitted; 6. The mortgage, and any other security instruments, in favor of Buyer's lender, if any; 7. Deleted 8. All other standard title exceptions contained in an ALTA owner's title policy customarily issued in Palm Beach County, Florida for similarly situated properties, and all other title exceptions for items common to the Proj ect; provided that no limitation on Buyer's title may prohibit construction of the Community Facility, nor the use of it as a Community Facility, subject to the Homeowner Documents. B. Closing Documents. At Closing, Buyer will receive: (i) a special warranty deed to the Property which will be subj ect to (that is, contain exceptions for) all of the matters described above, (ii) Seller's form of owners (no-lien) affidavit, FIRPTA ("non-foreign") affidavit, and gap affidavit, (iii) Bill of Sale for anypersonal property contained in the CommunityFacility, (iv) final as-built survey of the Property, (v) Soil treatment certificate, (vi) Insulation certificate, (vii) Certificate of Occupancy for the Property, and (viii) the Limited Warranty Registration, which shall require Buyer's execution at Closing. Buyer and Seller shall each execute and deliver to the other such additional documents as reasonably required by the closing agent to close the transaction contemplated in this Agreement. The documents (the title commitment, as aforesaid, and the documents listed in this Section 11.B. are collectively referred to herein as the "Closing Documents"). If Buyer finds title not to be in the condition required by this Agreement, then within thirty (30) days of receipt from Seller of the title commitment described above, Buyer shall notify Seller in writing of the specific nature of the claimed title defect and the specific 7 actions needed to correct the alleged title defect, failing which any claimed title defect shown in the title commitment shall be deemed waived by Buyer. In the event Seller cannot provide the quality of title described above, Seller will have a reasonable period of time (at least ninety (90) days after Buyer gives Seller written notice of an objection to title) to correct any defects in title, but Seller is not obligated to do so. If Seller cannot, or at any time elects not to, correct the claimed title defects, then within five (5) days of notice from Seller, Buyer shall elect to either (i) accept title in the condition Seller offers it (with any such defects) and pay the Total Purchase Price for the Property (without reduction or offset), and Buyer shall not make any claims against Seller because of the alleged defects which will also be excepted from the special warranty deed; or (ii) cancel this Agreement and receive a full refund of the Deposit, whereupon Seller will be relieved of all obligations under this Agreement upon delivery to Buyer of the Deposit. If Buyer does not give written notice of such election to Seller within said five (5) day period, Buyer will be deemed to have elected option (i) of the preceding sentence. 12. CLOSING COSTS. Buyer understands that, in addition to the Total Purchase Price (which shall include all Approved Upgrades and Change Orders), Buyer shall pay at Closing the following fees and costs ("Closing Costs"): A. Deleted- B. The actual costs of: (i) officially recording the special warranty deed in the Public Records of Palm Beach County, Florida; (ii); deleted (iii) title search fees, title examination fees, settlement fees, and closing administration fees; and (iv) the premium for the Title Policy. Notwithstanding the forgoing, in the event Buyer elects to use Seller's designated closing agent for the Closing (which Buyer has no obligation to do), all of the foregoing costs listed in this Section 12.B. shall be paid by Seller at Closing. In the event Buyer does not so designate, in writing, another closing agent at the time of execution of this Agreement, Buyer agrees that Seller shall designate its closing agent to complete the Closing. C. Buyer's prorated share of the quarterly maintenance assessment charged by the Association for the quarterly assessment period in which the Closing occurs; provided, however, if the Closing shall occur in the last month of any quarter, Buyer will be charged for the next quarter's assessment at Closing in addition to the aforementioned proration for the current quarter; D Deleted E. Reimbursement to Seller for the cost of providing Buyer with: (i) a final as-built survey of the Property, the cost of which shall not exceed $300, and (ii) a F.E.M.A. elevation certificate, if required, the cost of which shall not exceed $200; F. Reimbursement to Seller for any utility deposits or hook-up fees for the Property which Seller may have advanced prior to Closing; 8 G. deleted H. Any unpaid charges for any Approved Change Orders; I. deleted J. All fees, costs, points, and charges imposed by Buyer's mortgage lender, if any, shall be paid by Buyer at Closing. Buyer acknowledges the Closing Costs referred to in Section 12.A. and 12.B. above do not include any mortgage loan closing costs of any kind, including, without limitation, the cost of title insurance required by Buyer's lender. In the event Buyer elects to use Seller's designated closing agent for the Closing, as aforesaid, Seller agrees to cause the closing agent to provide title insurance to Buyer's lender for the lowest amount permitted by law, and to coordinate the closing of Buyer's mortgage; K. Real property taxes will be prorated through the day before Closing on the current year's tax amount for the Property. If Closing occurs on a date when the current year's tax assessment is not available, taxes will be prorated on the prior year's tax, as allocated to the Property by Seller, and will be later adjusted by Buyer and Seller based on the exact amount of taxes, with allowance for the maximum applicable discount amount; provided, however, that any request for adjustment and/or re-proration of real estate taxes must be made in writing and delivered by the party requesting the adjustment to the other party within ninety (90) days of the date the notice of the current year's real estate tax assessment is published by the applicable taxing authority. Buyer understands and agrees that if no written request for adjustment or re-proration is made and delivered to Seller within such ninety-dayperiod, any entitlement to adjustment or re-proration of real estate taxes that may exist shall be deemed waived. L. Certified Special Assessments as of the scheduled Closing Date shall be paid by Seller. Pending Special Assessments assessed by governmental agencies as of the scheduled Closing Date shall be assumed by Buyer. If any such Certified Special Assessments are payable in installments, the installment due in the year of Closing shall be prorated and Buyer shall assume the balance of any such installments. 13. HOMEOWNERS' ASSOCIATION. Buyer acknowledges that (i) the Cannery Row Homeowners' Association, Inc., a Florida corporation not-for-profit ("Association") has been established for the purpose of maintaining certain aspects of the Property and the Project. Buyer understands that Seller, due to its present ownership of Lots and properties comprising the Project, currently controls the Association and has the right to appoint officers and directors thereof in accordance with the following documents governing the Property: (i) the Articles of Incorporation of the Association ("Articles"), (ii) the By-Laws of the Association ("By-Laws"), and (iii) the Declaration of Covenants and Restrictions ("Declaration"), all as amended from time to time (the Articles, By-Laws and Declaration are collectively referred to herein as the "Homeowner Documents"). Buyer further acknowledges that upon Closing, Buyer shall automatically become a 9 member of the Association and shall be required to comply with all of the terms and provisions of the Homeowner Documents, and Buyer further acknowledges that Buyer shall be liable for the payment of any and all regular and special maintenance assessments levied against the Property pursuant to the Declaration, and that Buyer's failure to pay any such assessments may result in penalties. After Closing, and in accordance with the Declaration, Buyer shall be responsible for the maintenance of the Property. In the event Buyer fails to properly maintain the Property in accordance with the Declaration, the Association shall have the right, but not the obligation, to perform such maintenance required of Buyer pursuant to the Declaration, in which event Buyer shall pay all cost incurred by the Association, including all collection costs. The Association shall have the right to assess the Property for all maintenance costs incurred by the Association. Buyer acknowledges receipt of the proposed Homeowner Documents, which Buyer agrees to adhere to and be bound by the terms thereof, and any future changes provided that Buyer has consented to such changes as provided in the Homeowners Association documents. The provisions of this Section 13 shall survive the Closing. 14. HOMEOWNER ASSOCIATION FEES. Buyer understands that any estimated operating budget provided to Buyer (the "Budget") provides only an estimate of what it will cost to run the Association during the period of time stated in the Budget. The Budget is not guaranteed to be an accurate prediction of the expenditures required of the Association, and, as such, are subject to change at any time and from time to time to reflect actual and projected expenditures or changes in assumptions. These changes may occur before or after Closing, but will not affect any of Buyer's obligations under this Agreement or the Homeowner Documents, except as to resulting changes in closing prorations. Buyer recognizes and agrees that Buyer's assessments may include expenses attributable to Common Property which are not complete or usable by Buyer at any given time. The provisions of this Section 14 shall survive the Closing. 15. ADJUSTMENTS WITH THE ASSOCIATION. Buyer acknowledges that Seller may advance money to the Association, or on behalf of the Association, to pay for certain Association expenses, including, without limitation, insurance premiums, Common Property maintenance and repairs, utility charges and deposits, permit and license fees, charges for service and maintenance contracts, salaries of Association employees, and other similar expenses. Seller is entitled to be reimbursed by the Association to the fullest extent permitted bylaw for all such sums advanced or paid by Seller on behalf of the Association. 16. DEFAULT. If Buyer fails, refuses or neglects to perform Buyer's obligations under this Agreement, Buyer shall be deemed in "default". If Buyer remains in default thirty (30) days after Seller sends notice of any such default, Seller shall be entitled to the remedies provided herein. Seller has agreed to construct the Community Facility in connection with obtaining certain development approvals from the City of Dekay Beach for the Project. In that regard, Seller would not construct the Community Facility except for the requirement by the City of Delray Beach to do so in order to grant Seller the required development approvals for the Project. Buyer and Seller agree 10 that as inclusion of the Community Facility in the Project as a condition of receiving development approvals for the Project, it would have no value to Seller in the event Buyer does not close on the purchase of the Community Facility, as such event may jeopardize the underlying approvals for the Project. In the event Buyer's default is failing to close on the scheduled Closing Date, then Seller may seek specific performance to compel it to close on the purchase and sale contemplated by this Agreement. If Seller fails, refuses or neglects to perform Seller's obligations under this Agreement, Seller shall be deemed in "default." If Seller defaults under this Agreement, Buyer shall give Seller written notice specifying any such default. If Seller has not cured the default within ten (10) days following Seller's receipt of Buyer's default notice, or, where the nature of the specified default cannot reasonably be cured within such ten-day period, Seller has not commenced a course of action and thereafter diligently pursued such course of action as reasonably required to promptly cure such default within ninety (90) days, Buyer may either (1) receive a refund of all monies paid by Buyer under this Agreement or (2) seek specific performance, without thereby waiving an action to recover Buyer's actual and direct damages (out-of-pocket amounts actually paid by Buyer to third parties). Acceptance of a special warranty deed at Closing shall be Buyer's acknowledgment of full performance by Seller of all of its agreements, duties and obligations under this Agreement and no agreement, duty or obligation of Seller shall survive the Closing except the obligation of Seller to complete the Punch List, the Limited Warranty provided in Section 19 below, and the warranties contained in the special warranty deed. The provisions of this Section 16 will survive Closing. 17. Deleted. 18. ONGOING ACTIVITIES. Buyer understands that as long as Seller owns property within the Project, it may retain offices and model homes within the Project (including on or within Common Property, and any improvements thereon). Seller's sales representatives may show homes, erect advertising signs and conduct any and all activities whatsoever as is necessary and appropriate for the sales, leasing or management of the Project. In addition to the foregoing, Seller, and its affiliates, assignees, contractors, subcontractors, licensees and designees may conduct such construction, marketing and other activities in or around the Project as are deemed necessary or appropriate in the sole discretion of Seller or the party conducting such activities on Seller's behalf, or with Seller's consent .Without limiting the generality of the foregoing, and as a material inducement to Seller to enter into this Agreement, Buyer acknowledges and agrees that SELLER AND/OR OTHER PARTIES MAYBE CONDUCTING CONSTRUCTION, SALES, LEASING, AND OTHER ACTIVITIES WITHIN OR AROUND THE PROPERTY AND THE PROJECT, BOTH BEFORE AND AFTER The CLOSING. BUYER RECOGNIZES THE RIGHTS OF SELLER, OR OTHERS PERMITTED BY SELLER, TO CONDUCT SUCH ACTIVITIES AND HEREBY AGREES NOT TO: (i) DEEM ANY OF THESE ACTIVITIES TO BE NUISANCES OR NOXIOUS OR OFFENSIVE ACTIVITIES, (ii) ENTER, OR ALLOW ANY OTHERS UNDER BUYER'S CONTROL TO ENTER, ANY AREAS WHERE SUCH ACTIVITIES ARE BEING CONDUCTED (EVEN WHEN THEY HAVE TEMPORARILY CEASED, SUCH AS DURING NON-WORKING HOURS), OR (iii) INTERFERE WITH, RESTRICT OR IMPEDE THE WORK 11 OF SELLER OR OTHERS WITHIN THE PROJECT, AND BUYER HEREBY GRANTS SELLER ACCESS TO THE LOT AND ALL PORTIONS THEREOF, SUBSEQUENT TO CLOSING IN ORDER TO COMPLETE ANY WORK WITHIN THE PROJECT. 19. SELLER'S LIMITED WARRANTY. DISCLAIMER OF IMPLIED WARRANTIES . Seller agrees to repair, at Seller's expense, for a period of one (1) year from Closing, all materials that may prove to be defective within one (1) year from the Closing Date ("Limited Warranty"). It is expressly understood that this obligation shall be void if the need for such repairs arises from an act or failure to act by Buyer or Buyer's agents, servants, lessees, employees, or invitees, or if such need arises by virtue of an act of God, or if Buyer shall have attempted to repair same without first giving Seller thirty (30) days prior written notice thereof. This Limited Warranty shall be the only warranty that Seller shall make or be obligated to make regarding the Property or Project. BUYER UNDERSTANDS THAT THE ABOVE-DESCRIBED LIMITED WARRANTY TO BE DELIVERED TO BUYER AT CLOSING IS THE ONLY WARRANTY MADE BY SELLER WITH REGARD TO THE PROPERTY OR THE PROJECT, AND, TO THE MAXIMUM LAWFUL EXTENT AND UNLESS CLEARLY AND ABSOLUTELY PROHIBITED BY LAW, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND HABITABILITY, ANY WARRANTIES IMPOSED BY STATUTE, AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES OF ANY KIND OR CHARACTER ARE SPECIFICALLY DISCLAIMED, AND SELLER HAS NOT GIVEN AND BUYER HAS NOT RELIED ON OR BARGAINED FOR ANY SUCH WARRANTIES. AS TO ANY IMPLIED WARRANTY THAT CANNOT BE DISCLAIMED ENTIRELY, ALL SECONDARY, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARE SPECIFICALLY EXCLUDED, WAIVED AND DISCLAIMED (CLAIMS FOR SUCH SECONDARY, INCIDENTAL AND CONSEQUENTIAL DAMAGES BEING CLEARLY UNAVAILABLE IN THE CASE OF IMPLIED WARRANTIES WHICH ARE DISCLAIMED ENTIRELY ABOVE). BUYER UNDERSTANDS AND HEREBY AGREES TO THE TERMS AND CONDITIONS OF THE LIMITED WARRANTY. Without limiting the generality of the foregoing, if, but only if, Seller is prohibited from disclaiming entirely certain implied warranties by reason of the provisions of the "Magnuson-Moss Warranty Act" (15 U.S.C. §§2301-2312) (the "Warranty Act"), if applicable, Seller HEREBY LIMITS THOSE IMPLIED WARRANTIES, IF ANY, AS FOLLOWS: (i) IN SCOPE TO THOSE, IF ANY, GIVEN ON "CONSUMER PRODUCTS," IF ANY, AS DEFINED IN THE WARRANTY ACT, IF APPLICABLE) WHICH ARE ACTUALLY COVERED BY THE LIMITED WARRANTY, AND (ii) IN DURATION TO THE ONE YEAR PERIOD OF SELLER'S LIMITED WARRANTY, AND ALL THOSE IMPLIED WARRANTIES, IF ANY, ARE HEREBY DISCLAIMED ABSOLUTELY THEREAFTER. Buyer understands and agrees that Seller is authorized to utilize a 3rd party warranty management service in connection with the administration of any warranty provided to Buyer for the Community Facility, and that Buyer agrees to execute any registration forms or agreements in connection with such warranty administration. Seller will deliver to Buyer, at Closing, any and all manufacturers' warranties, which will be passed through to Buyer at Closing, none of which manufacturers' warranties are expressly warranted in any way by Seller. The provisions of this Section 19 will 12 survive Closing. 21. NOTICES. Unless this Agreement states other methods of giving notices, whenever either party is required or desires to give notice to the other party, the notice must be in writing and sent either: (i) by first class mail, postage prepaid (unless sent outside of the United States, in which event written notices to Buyer may be sent by regular air mail); (ii) by facsimile transmission or electronic mail if Buyer has indicated a facsimile number or electronic mail address on Page 1 of this Agreement; or (iii) by a national overnight courier service, to the address for Buyer set forth on Page 1 of the Agreement. A change of address notice is effective when it is received. All other written notices are effective on the day they are properly mailed, transmitted, or delivered, as the case may be, whether or not received (and all permitted non-written notices to Buyer are effective on the date given by Seller) unless receipt is required as specifically set forth in portions of this Agreement. 22. TRANSFER OR ASSIGNMENT. Buyer may transfer or assign Buyer's interest in this Agreement to the Delray Beach Community Redevelopment Agency or the Delray Beach Community Land Trust, Inc. without the approval of Seller, if Buyer wishes to assign this Agreement to another entity it must first obtain consent of Seller, which shall not be unreasonably withheld. Seller may assign or transfer freely all of its rights and obligations under this Agreement. 23. Deleted. 24. FLORIDA LAW; SEVERABILITY. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Florida, and any disputes in connection with this Agreement will be settled according to Florida law. If any part of this Agreement violates a provision of Florida or federal law, such law will control. In such case, however, the remainder of the Agreement (not in violation) will remain in force and effect. Without limiting the generality of the foregoing, it is Buyer's and Seller's mutual desire and intention that all provisions of this Agreement be given full effect and be enforceable strictly in accordance with their terms. If, however, any part of this Agreement is not enforceable in accordance with its terms or would render other parts of this Agreement or this Agreement, in its entirety, unenforceable, the unenforceable part or parts are to be judicially modified, if at all possible, to come as close as possible to the expressed intent of such part or parts (and still be enforceable without jeopardy to other parts of this Agreement, or this Agreement in its entirety), and then are to be enforced as so modified. If the unenforceable part or parts cannot be so modified, such part or parts will be stricken and considered null and void, and the remainder of this Agreement shall continue in full force and effect, in order that the mutual paramount goal (that this Agreement is to be enforced to the maximum extent possible strictly in accordance with its terms) can be achieved. Without limiting the generality of the foregoing, if the mere inclusion in this Agreement of terms granting to Seller certain rights and powers, or waiving or limiting any of Buyers rights or powers or Seller's obligations (which otherwise would be applicable in the absence of such terms), results in a final conclusion (after giving effect to the above judicial modification, if possible) that Buyer has the right to cancel this Agreement and receive a refund of Buyer's Deposit, such offending 13 rights, powers, limitations and/or waivers shall be stricken, cancelled, rendered unenforceable, ineffective and null and void. Under no circumstances shall either Buyer or Seller have the right to cancel this Agreement solely by reason of the inclusion of certain language in this Agreement (other than language which is intended specifically to create such a cancellation right). THE FOLLOWING SENTENCE WILL SUPERSEDE AND TAKE PRECEDENCE OVER ANYTHING IN THIS AGREEMENT THAT IS IN CONFLICT WITH IT: IF ANY PROVISIONS SERVE TO LIMIT OR QUALIFY SELLER'S SUBSTANTIAL COMPLETION OBLIGATION HEREIN, AND SUCH LIMITATIONS OR QUALIFICATIONS ARE NOT PERMITTED IF THE EXEMPTION OF THIS SALE FROM THE INTERSTATE LAND SALES FULL DISCLOSURE ACT PURSUANT TO 15 U.S.C. § 1702(a)(2) IS TO APPLY OR THIS AGREEMENT IS TO OTHERWISE BE FULLY ENFORCEABLE, THEN ALL THOSE PROVISIONS ARE HEREBY STRICKEN AND MADE NULL AND VOID AS IF NEVER A PART OF THIS AGREEMENT. FOR PURPOSES OF THIS PARAGRAPH ONLY, THE WORDS "THIS AGREEMENT" INCLUDE IN THEIR MEANING THE HOMEOWNER DOCUMENTS. 25. TIME OF THE ESSENCE. The performance of all obligations on the precise times stated in this Agreement is of absolute importance, and failure to perform any such obligations on time is an event of default, time being of the essence with respect to each provision of this Agreement which requires performance by Buyer within a specified time period or upon a specified date. If the deadline for the performance of any obligation under this Agreement, or the expiration of any time period under this Agreement, falls on a Saturday, Sunday or legal holiday, then the applicable time period shall be extended to the next succeeding business day. 26. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between the parties, and may not be amended except by written agreement executed by all parties hereto. Any current or prior agreements, understandings, verbal and visual representations and statements, including, without limitation, artist's rendering, sales and advertising materials, or oral statements and representations of Seller's sales representatives, if not expressed in this Agreement or in the Homeowner Documents, are hereby merged into the terms of this Agreement and are void and have no effect, and Buyer acknowledges that Buyer has not relied on any such information or materials. 27. LITIGATION. The venue of any litigation or other dispute resolution arising out of this Agreement shall be Palm Beach County, Florida. This provision shall survive the Closing or earlier termination hereof. 28. Deleted 29. SURVIVAL. The provisions and disclaimers in this Agreement which are expressly set forth herein to have effect after Closing (but only those provisions and disclaimers) will continue to be effective after Closing and delivery of the deed. All other provisions of the Agreement shall be deemed performed or waived at Closing, and shall be merged into the deed. 30. INCORPORATION BY REFERENCE. Every exhibit, schedule, modification, rider, and 14 other addendum and appendix attached to this Agreement or referred to herein is hereby incorporated in this Agreement. 31. Deleted. 32. Deleted. 33. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. 34. CONSTRUCTION. Every covenant, term, provision of this Agreement shall be construed simply according to its fair meaning, and shall not be more strictly construed against any one of the parties hereto. Further, notwithstanding the fact that the form of this Agreement has been drafted, initially, by Seller, all parties to this Agreement have participated fully in the negotiation and preparation hereof, and as this Agreement has been fully negotiated between the parties hereto, the principle of contract interpretation which would result in any ambiguity being construed against the draftsman shall not, and is not intended, to apply. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and the use of any gender shall be held to include every other gender. The titles and captions contained herein are for convenience only and shall not be deemed a part of the context of this Agreement. 35. NEGOTIATIONS. Buyer acknowledges that the negotiation of this Agreement and all discussions with Seller and its agents regarding the sale of the Property were conducted in the English language. Buyer also acknowledges that (a) Buyer has had ample opportunity to inspect the documents provided to Buyer pursuant to this Agreement, and pursuant to any request of Buyer, and (b) that although Seller's sales agents are not authorized to change the form of this Agreement, they have strict instructions from Seller to communicate any of Buyer's requests for changes to this Agreement to Seller's management, which has given Buyer the opportunity to discuss and negotiate any such changes to the Agreement. In light of the foregoing, Buyer's decision to sign this Agreement now is totally free and voluntary and Buyer acknowledges and accepts all of the provisions of the Agreement as fair, reasonable, negotiated, discussed and explained to Buyer's complete satisfaction. 36. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, and shall be binding upon the party or parties who executed same, but all of such counterparts shall constitute one and the same Agreement. 37. EFFECTIVE DATE. The effective date ("Effective Date") of this Agreement shall be the date stated on Page 1 of this Agreement, and shall be the date from which all time periods under this Agreement are computed. 38. Deleted 15 39. OTHER STATUTORY DISCLOSURES. A. Chapter 558 Notice of Claim. CHAPTER 558, FLORIDA STATUTES CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR COMMUNITY FACILITY. SIXTY DAYS BEFORE YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS CONTRACT A WRITTEN NOTICE REFERRING TO CHAPTER 558 OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS. B. Florida Homeowners' Construction Recovery Fund. FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND: PAYMENT MAY BE AVAILABLE FROM THE FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A LICENSED CONTRACTOR. FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE NUMBER AND ADDRESS: FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD 1940 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-1039 (850) 487-1395. C. Real Estate Taxes. BUYERS SHOULD NOT RELY ON THE SELLER'S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT THE BUYER MAY BE OBLIGATED TO PAY IN THE YEARS SUBSEQUENT TO PURCHASE. A CHANGE IN OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES. IF YOU HAVE ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER'S OFFICE FOR INFORMATION. D. Homeowner's Association Disclosure Summary. ATTACHED HERETO AS EXHIBIT "D" IS A HOMEOWNER ASSOCIATION DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401, FLORIDA STATUTES WHICH IS HEREBY INCORPORATED IN AND MADE A PART OF THIS AGREEMENT. IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401, FLORIDA STATUTES, HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY 16 BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT OR REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 3 DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S RIGHT TO VOID THIS CONTRACT SHALL TERMINATE AT CLOSING. E. Insulation Disclosure. Seller has disclosed to Buyer, as required by the applicable rules of the Federal Trade Commission that the type, thickness, R-value and location of the insulation Seller intends to install in the Community Facility, are as follows: None, as no insulation shall be installed by Seller. Buyer understands that the above information is based solely on the information provided by the manufacturers of such insulation products, and Buyer agrees that Seller is not responsible for any manufacturers' errors or discrepancies. All of the foregoing information is subject to Seller's rights, under this Agreement to make changes in the Construction Specifications, and to any applicable limitations of Seller's liability to Buyer. Pursuant to F.S., Chapter 553.996, Buyer acknowledges receipt of the Energy-Efficiency Standards published by the Florida Dept. of Community Affairs, which among other things, notifies Buyer of the option of obtaining, at Buyer's expense, anenergy- efficiencyrating on the Community Facility. F. Radon Gas. Seller does not conduct radon testing with respect to the Property, and specifically disclaims any and all representations or warranties as to the absence of radon gas or radon producing conditions in connection with the Property. THE FOLLOWING PARAGRAPH IS PROVIDED FOR INFORMATIONAL PURPOSES PURSUANT TO FLORIDA STATUTES 404.056(8): RADON GAS IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH DEPARTEMENT. 40. ADDITIONAL DISCLOSURES AND DISCLAIMERS. Seller hereby discloses the following information to Buyer which Buyer should carefully evaluate in its decision to purchase the Property: (a) Buyer acknowledges that certain aspects of the Common Property may, in some cases, be unfinished as of the date of Closing, and that Buyer will accept such improvements and facilities in their "AS IS" condition as of the Closing Date. (b) Although the glass and windows in the Community Facility are impact-resistant, according to the manufacturer, Seller makes no representations as to the resistance qualities or capabilities of the glass windows or doors in the case of a major weather event. 17 (c) Buyer acknowledges Seller may obtain FNMA or FHLMC project approval; however, Seller is not required to obtain the approval. (e) Buyer acknowledges that any proposed Association budget provided to Buyer reflects estimated expenses, and, as an estimate, such expenses are subj ect to change between the time of Buyer's receipt of any proposed Association budget and the time such expenses are to be paid by the Association. The provisions of this Section 40 will survive Closing. 41. BUYER OPTIONS. In addition to Buyer's rights herein to purchase the Community Facility at Seller's cost, not to exceed $530,000.00, and as more particularly described in that Developer Agreement, of even date herewith, between Buyer and Seller, Buyer shall have to option, upon notice to Seller as described below, to: a) not proceed with the purchase of the Community Facility, but, instead, purchase Lot 12, only, to be used for park purposes only, with appropriate deed restrictions allowing only use as a park, and without any improvements thereto other than water service (using Buyer's water meter and Buyer bearing all water usage charges), landscaping and irrigation for the Lot 12, whereby Lot 12 shall be owned by Buyer (or the public for park purposes if so dedicated by Buyer or by Seller through an amendment of the Plat); or b) terminate this Agreement without penalty to Buyer if Buyer determines, in its sole discretion, that the purchase of Lot 12 for purposes of a Community Facility or a park is not in the best interests of Buyer. In the event Buyer elects to terminate this Agreement, Buyer shall not thereafter impose upon Seller, or any successor in interest, a requirement to construct any commercial improvements within the Project. Notwithstanding any other notice requirements herein, Seller shall notify Buyer in writing, at least sixty (60) days prior to applying for building permits for the building in which the Community Facility unit is to be constructed, that Seller intends to proceed with construction of such building ("Seller's Notice to Proceed"). Buyer shall notify Seller in writing within sixty (60) days of receipt of Seller's Notice to Proceed that Buyer has elected to: a) purchase the Community Facility unit at Seller's cost, not to exceed $530,000.00, as aforesaid; or b) purchase Lot 12, only, at Seller's cost of $200,000.00 for park purposes, as aforesaid; or c) terminate this Agreement without penalty to Buyer. In the event Seller does not receive notice of Buyer's election under this section within sixty (60) days of receipt of Seller's Notice to Proceed, Seller shall deem such failure to notify Seller as Buyer's election to terminate this Agreement, whereupon Seller may proceed with development of the Project without any requirement of commercial improvements. BY SIGNING BELOW, BUYER AND SELLER AGREE TO BE BOUND BY ALL TERMS AND PROVISIONS OF THIS AGREEMENT. ACCORDINGLY, BUYER IS HEREBY ADVISED TO CAREFULLY REVIEW THIS AGREEMENT AND THE HOMEOWNER DOCUMENTS, AND TO CONSULT WITH AN ATTORNEY OF BUYER'S CHOICE. If, after the execution of this Agreement, Buyer or any attorney on Buyer's behalf, informs Seller that Buyer desires or intends to terminate this Agreement, or that 18 Buyer is or maybe unable or unwilling to comply with any of the terms of this Agreement, then, at the option of Seller, same will constitute a default by Buyer. IN WITNESS WHEREOF, the parties hereto have sworn to and executed this Agreement as of the date first above written. SELLER: CANNERY ROW LLC, a Florida limited liability company By: Ironwood Development, Inc., a Florida corporation, its Managing Member By: Cary Glickstein, as President BUYER: CITY OF DELRAY BEACH By: Mayor, Rita Ellis Attest: City Clerk 19 EXHIBIT "A" PLAT 20 . ~ ~ ~ I .. _..._- -- - ~~ ~ ~ _ .~ . ~ I . O aZi ~ . ' ~' ~ : +¢sc7uTrn.rwmrxr.. ~'' J a :.1. ~ ~. 1 °~ d 3 ~I :: >~ ~ ti r: QI ^~~ ...~ b~ ~- w. on ~ v Ja[s rI Jab! l[W II _ 1. - o : `o I o o `. ~-F I, auoromms ~ 1 ~ `1~F 1 . _ I~ • X a .. o o. o. µ . .7 1 air Jail I I J asr.~ S w ` • o n F m', I , O. o~, .. I '~ .. 3.. .~. . ~ ~ ~.. z' 6 ~ ~. on .,, • . g. r;^ ~ ~ ~ ~ ~ .:D~ ~ e . Lnf M ImoI~..'',. p ~ ~ ~' ~ 11I '~~ ~. ~ ~ J 1~ q ~ '~hy~ +~~~~W ~ ~ NL1 1' ~ M9vmm ~ ~ Y T Q.:L R ~ G ~ ~.IR,, ~ . h a ,~ ~ • Q ~.r ~ v8 e' ~~ . ~ ~' L rJ u tim ~ o I J~ ~ ,~,, g I.. ' m Q~U p~~ . . ~ '. •I I oN. toa $ o ~ q ati ~ Q ~ ~oM~.' ~ I g .. on `i I ~ g oe ~ ~ ffi wh ~' Q .~ _ _ I m ~ .~ .. ~ a, a •~ ~ ~ I ~ Ot~y . 11YCAhE t~ ~ W ~ g On ~. ~~~ i ~Q~. i 5N . e ~_ ~~ ... ~ _ I «~ a ."~. :. ~ j.I ~•. ~atiDmE ~ti ~ I I Ma _ I I ON e ~ . S I SI , Il ~ ~ -~~ ~ .~? o . o u ~ ~. o. ~x ID 9Jd 3fD I I J4P - 9JC q ' ..~j ~ I l . ~ ,~ a J 3 ~` o ~ o ~. 0 = I.. rf Otaw rI4lEM I 1 ti ~ Ob e'. & gam. ~.. ~ ~ ~ ob ~. _' W ~. O~ •3 ~. a. , .oa J Vd O_ . _ .. f I ~ _ X ~ ~ tvso K~ . - h ~ Qaa •a}p La4aFNr ~ ~ ~ L . ~. O M t ~ am . r ~ ~. ~ R oQ. M -~ = ti o. . - = O .. = O $ `o = o = c o u ~ s!rvu~~ - ?8[8 ~ gr~rnr ~~ ~ --- - - - -~ - ~~r~r„~ ~JlWr O."_ 4 - ~ - Mr6~ocIMQJ - &Q7C 7<, S,.V C~ ~OC9i 7S (PAT B0.'YC R PAC{ P1 EXHIBIT "B" FLOOR PLANS AND ELEVATIONS 21 Fzx F~~ ~~£~ ~_~ o ~~~ ~~~ Fj~ F;Z at hj~ =~o ~ ~ c ~• w m R o a v =2^ i ~- • , a I 1 \ 1 1 ~- C - i ~ ~ ... 1 ~, 1 ~~~~~~~ I h I ~ N ~ :~:• 1 ~ ~.'\ i 9 i I I ~ i--~ I I 1 I 1 1 `• ~• ~ ~ d 1 ~~ h. I _I ~N 1 c c - 11 .~ -__ .Q .81 ~ -' o ,8-.£Z 2H-L W U 2 ~ g 4. ('3 Z O ® m /~~ O s~• ~ 1e~ ^/ e~~ V Z `F N W C~ Q ®.. O C~ w U ~_ ~_ Z 3 a c7 z 0 m O O J LL Z `~ !W V Q LL1 U ~_ Q _~ Z 5 a c~ Z 0 s m a 0 J LL (L~ W Q O O J LL T ~~bm "~H-Z ~~ V S N W Q Q O O J L1. T3 C N "~!H-Z ~ `~'_ C~ (~ -~ W Q J LL e7 ~~~rrn '~H - Z ~- !~ V Q ® W ® ~ I!J e Q F- ®® LLJ ~ ®® ~ ~ ®~ J U~ LL~ ooa ~ ~ o©o 0 ooa ~ ~ u ~ 000 ~ ao^ ~ °° ~ O - ~ z U d W O ~ ~ ~ o0 ~ a 0 u _ ~(y ~.e- g ~ F- ~ ^ ~ _ ~ I OD Z M ~~ ~ ~ ~~ d Z ~ ~ ttl ~ F ~ •e- X00 m D Z 0 a J W W ~~ EXHIBIT "C" CONSTRUCTION SPECIFICATIONS 22 ~ ~ e EXtQrior FiniShSS: - Smooth stucco finish on exterior walls, covered entry and porch ceilings, and soffits with stucco soffit crown molding. - Decorative, pre-finished aluminum (non-operative) shutters as per Elevations. - Painted, wood-wrapped steel and fiberglass columns at selected balconies, as per Elevations. - Pre-finished decorative balcony railing, as per Elevations. - Brick paver entry walkway. - Sherwin-Williams {or equal) exterior flat latex paint on all stucco. - Sherwin-Williams (or equal) exterior semi-gloss enamel paint non-pre- fnished doors and decorative columns. - Decorative Awnings at selected locations, as per Elevations. interior Finishes: None. The Community Facility will be delivered as a shell structure, such that the interior will consist of exposed cmu (block walls), floor and roof trusses, plywood sheathing, and temporary stair system. VNindows and Exterior Doors: - PGT (or equal) pre-finished white aluminum, single-hung windows ~vith impact-resistant tinted glass, and screens. - PGT (or equal) 8' pre-finished white aluminum storefront doors with impact-resistant tinted glass at 1St floor, with French doors at upper floors, as per Elevations. - Therms-Tru (or equal) 8' insulated, paintedlstained fiberglass, raised panel rear door. Air Cond'ationing and ~ieatiing: None Plumbing and Fixtures: 1" water service stub-out to interior wall, sewer line connection to first floor drain. Electrical and Fixtures: Single-phase 200 amp service to meter box and stub out to interior wall. Fire Sprinkler: Water line stub out to interior wall. Landscaping and Vt/alllcways: - Landscaping pursuant to Jerry Turner & Associates landscape plan. - Zoned sprinkler system utilizing city water on HOA meter. - Brick paver sidewalks; ADA compliant front entry. insulation: None 2 Exterior Finishes: - Smooth stucco finish on exterior walls, covered entry and porch ceilings, and soffits with stucco soffit crown molding. - Decorative, pre-finished aluminum (non-operative) shutters as per Elevations. - Painted, wood-wrapped steel and fiberglass columns at selected balconies, as per Elevations. - Pre-finished decorative balcony railing, as per Elevations. - Brick paver entry walkway. - Sherwin-Williams (or equal) exterior flat latex paint on all stucco. - Sherwin-Williams (or equal) exterior semi-gloss enamel paint non-pre- finished doors and decorative columns. - Decorative Awnings at selected locations, as per Elevations. Interior Finishes: None. The Community Facility will be delivered as a shell structure, such that the interior will consist of exposed cmu (block walls), floor and roof trusses, plywood sheathing, and temporary stair system. 1Nindovvs and Exterior ®oors: - PGT (or equal) pre-finished white aluminum, single-hung windows with impact-resistant tinted glass, and screens. - PGT (or equal} 8' pre-finished white aluminum storefront doors with impact-resistant tinted glass at 1St floor, with French doors at upper floors, as per Elevations. - Therma-Tru (or equal) 8' insulated, painted/stained fiberglass, raised panel rear door. Air Conditioning and Heating: None Plumbing and Fixtures: 1" water service stub-out to interior wall, sewer line connection to first floor drain. Electrical and Fixtures: Single-phase 200 amp service to meter box and stub out to interior wall. Fire Sprinkler: Water line stub out to interior wall. Landscaping and VYalkways: - Landscaping pursuant to Jerry Turner & Associates landscape plan. - Zoned sprinkler system utilizing city water on NOA meter. - Brick paver sidewalks; ADA compliant front entry. insulation: None SPECIFlCATIOIV DISCI_OSLlRES BUYER UIVDERSTARlDS AND AGREES THAT: Ail dimensions and floor plans are approximate, and all specifications, materials, features, finishes, equipmen#, and product selections are subject to change by Se11er without prior notice pursuant to the Purchase and Sale Agreement. Certain materials, features, finishes, equipment and products may appear on the +=loor Plans or Elevations for one #ownhome model type but not on other townhome model types; thus, these Construction Specifications are intended to include all such materials, finishes, equipment and products that Seller presently intends to use with the Project, but not necessarily on the Community Facility. Exterior paint color combinations will be determined by Seller, it its discretion based on appropriateness to the Elevations and location of the Community Facility in relation to adjacent townhomes and/or townhome .buildings. Exterior features, such as landscaping materials, walls, trellises, amenities, fencing, gates, railings, light fixtures, and the colors, finishes and textures of such items, shown on any promotional materials may not be accurate representations ofi the improvements to be installed or constructed by Seller, and Seller is not bound by any such representations. Certain design features shown in the Floor Plans and/or Elevations are based on architectural software, such that certain design features, including, without limitation, exterior doors, windows, entry gates, balcony posts and railings, decorative shutters, garage doors, brick and stucco facades, light fixtures, fencing, and roof materials may not be accurate representations of the items or materials to be installed by Seiler pursuant to these Specifications, and Seller is not bound by any such representations in the Floor Plans or Elevations. Only those items stated in these Specifications will be included in the Community Facility, subject to the provisions of the Purchase and Sale Agreement. The glass in the windows and doors are impact-resistant, according to the manufacturer. Seller makes no representation as to the resistance qual'sties or capabilities of the glass windows or doors in the case of a major weather event. EXHIBIT "D" DISCLOSURE SUMMARY FOR CANNERY ROW HOMEOWNERS ASSOCIATION IF THE DISCLOSURE SUMMARY REQUIRED BY CHAPTER 720, FLORIDA STATUTES, HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT OR REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 3 DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S RIGHT TO VOID THIS CONTRACT SHALL TERMINATE AT CLOSING. BUYER SHOULD NOT EXECUTE THIS CONTRACT UNTIL BUYER HAS RECEIVED AND READ THIS DISCLOSURE. AS A BUYER OF PROPERTY IN THIS COMMUNITY, YOU WILL BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION ("ASSOCIATION"). THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE COVENANTS ("COVENANTS") GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS COMMUNITY. YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS $330.00 PER MONTH. YOU WILL ALSO BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE. IFAPPLICABLE, THE CURRENT AMOUNT IS $0.00. YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE. YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION COULD RESULT IN A LIEN ON YOUR PROPERTY. THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS' ASSOCIATION. IF APPLICABLE, THE CURRENT AMOUNT IS $ 0.00. 23 THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS. THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE ONLY SLJMIVIARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY. THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE PROPERTY IS LOCATED. OR ARE NOT RECORDED AND CAN BE OBTAINED FROM THE DEVELOPER. BUYER DATE 24 GC : ~ a-at el~~ ~~~-J Boca Raton/Delray Beach News -Tuesday-Wednesday, July 17-18, 2007 • wmnv.bocanews.com ~~ NO71CE OF INTENT TO ACQUIRE REAL PROPERTY NOTICE IS HEREBY GIVEN, that the City of Delray Beach, Florida, has de- termined it to be in the best interest of the City to purchase certain real prop- erty for municipal purposes, more par- ticu)arly descdbed as follows: Lot 12, CANNERY ROW, according to the Plat thereof recorded in Plat Book 109, Page 133, Public Records of i Palm Beams County Forida If the City purchases the properly with I the structure the purchase will be the actual cast of construction, but not to exceed Five Hundred Thirty Thousantl Dollars (US $530,000.00); the City may just purchase the property de-i scribed above with no structure in the amount of Two Hundred Thousand Dollars (US $200,000.00);-or the City may terminate this purchase and sale agreement without purchasing any property. A Resolution of the City Commission of the City of Delray Beach, Florida, authorizing the pur- chase of properfy antl incorporating the terms and conditions of such pur- chase will be considered for adoption by the City Commission at a regular' meeting to be held on Tuesday, July 24, 2007 (or at any continuation of such meeting which is set by the Commission) al 7:00 p.m. in the Com- mission Chambers at Cily Hall, 100 N-W. 1st Avenue, Delray Beach, Flor-I ida. CIT`!CF DELRAY BEACH, FLORIDA ~ Chevetle D. Nubir., CMC City CIerA Publish: July t0 & 17, 2007 I Boca RatonJDelray Beach News