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Res 37-95 RESOLUTION NO. 37-95 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO ENTER INTO AN ASSIGNABLE CONTRACT FOR THE PURCHASE OF CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, LOCATED AT 306 NORTHEAST SECOND STREET, DELRAY BEACH, FLORIDA, AND AS MORE PARTICULARLY DESCRIBED HEREIN; AUTHORIZING THE ASSIGNMENT OF THE CONTRACT; AUTHORIZING THE CITY TO HOLD A MORTGAGE ON THE PROPERTY; INCORPORATING AND ACCEPTING THE CONTRACTS AND AGREEMENTS STATING THE TERMS AND CONDITIONS FOR THE ACQUISITION, TRANSFER AND MORTGAGE. WHEREAS, the City desires to enter into an assignable contract for the purchase of property owned by Donald C. McGraw, Jr., located at 306 Northeast Second Street, Delray Beach, Florida, as more particularly described in Section 1 of this Resolution; and, WHEREAS, the City desires to assign the contract for the aforementioned property to CRC Recovery Foundation, Inc.; and, WHEREAS, the City has determined it will hold a mortgage on the property, and; WHEREAS, the City recognizes that CRC Recovery Foundation, Inc. through the Crossroads! Club and Drug Abuse Foundation provides essential services and recovery programs for drug and alcohol abuse victims in the Delray Beach area; and, WHEREAS, the City recognizes that the impact of such programs serve a vital public purpose. 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 enter into an assignable contract to purchase land from Donald C. McGraw Jr., Seller, for good and valuable consideration, as more clearly set forth in the documents attached hereto as Composite Exhibit 1; said parcel being more particularly described as follows: The North 100 feet of Block 91, lying East of Florida East Coast Railway Company right-of-way in the City of Delray Beach (formerly Linton), Florida, according to the Plat thereof recorded in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, in Plat Book 1, at Page 3, which is the same property as shown on the Plat of the resudivision of Blocks 91 and 92, and the West Half of Block 99, Town of Linton, Dade County, Florida, filed May 9, 1912, and recorded in Plat Book 2, page 21, Palm Beach County, Florida, records, shown as being situate on the northerly side of the resubdivision of Block 91, being an area 100 feet from the north to south on the east, running west of the Florida East Coast Railway Company right-of-way, and designated "not included" and being the property in part conveyed by Calvin W. Garner and Eulalie M. Garner, his wife, to L.C. Vauglm, by deed dated April 26, 1954, recorded in the Public Records of Palm Beach County, Florida, in Deed Book 1054, at page 452. Section 2. That the City Commission of the City of Delray Beach, Florida, desires to assign its rights under the contract to the property to CRC Recovery Foundation, Inc. for good and valuable consideration as set forth in Composite Exhibit 1 hereto. Section 3. That the City Commission of the City of Delray Beach, Florida shall hold al mortgage on the property in favor of the City requiring CRC Recovery Foundation, Inc. (Mortgagor) to pay to the City the amount set forth in Composite Exhibit 1 and subject to the terms of the mortgage as contained in Composite Exhibit 1 hereto. Section 4. That the costs of closing the transactions, title insurance, document preparation and attorney's fees shall be as set forth in the contracts and agreements for sale and purchase and other documents attached as Composite Exhibit 1 hereto. Section 5. That the terms and conditions contained in the contract for sale and purchaseI thereto between the City of Delray Beach, Florida, and Donald C. McGraw, Jr., Seller, in, the assignmentI thereof to the CRC Recovery Foundation, Inc., Buyer, in, and all other notes, mortgages, and agreements and all other documents attached hereto as Composite Exhibit 1 are hereby incorporated herein. PASSED AND ADOPTED in regular session on the/~~d~ of~~~.,~, 1995. ATTEST: ~ '~ ~"~--~ City Clerk mcgraw, ord 2 RES. 37-95 Composite Exhibit 1 to Res.37-95 CONTRAC~ FOR SALE AND PURCHASE PAI~TIES: DONALD C. McGRAW, JR., ("Seller"), of 306 Northeast 2nd Street, Delray Beach, Florida 33483, (Phone ), and CITY OF DELRAY BEACH, a Florida municipal corporation,("Buyer"), of 100 Northwest 1at Avenue, Delray Beach, Florida 33444 (Phone .), hereby agree that the Seller shall sell and Buyer shall buy the following real property ("Real property") and personal property ("Personalty"} (collectively "Property") upon the following terms and conditions which INCLUDE the Standards for Real Estate Transactions attached ("Standard(s)") and any addendum to this instrument. DBSCR~PTIOH~ (a)Legal description of Real Property located in Palm Beach County, Floridat The North 100 feet of Block 91, lying East of Florida East Coast Railway Company right-of-way in the City of Delray Beach (formerly Linton), Florida, according to the Plat thereof recorded in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, in Plat Book 1, at Page 3, which is the same property as shown on the Plat of the resubdivision of Blocks 91 and 92, and the West Half of Block 99, Town of Llnton, Dads County, Florida, filed May 9, 1912, and recorded in Plat Book 2, Page 21, Palm Beach County, Florida, records, shown as being situate on the northerly side of the resubdivision of Block 91, being an area 100 feet from the north to south on the east, running west of the Florida East Coast Railway Company right-of-way, and designated "not included" and being the property in part conveyed by Calvin W. Garner and Eulalie M. Garner, his wife, to L.C. Vaughn, by deed dated April 26, 1954, recorded in the Public Records of Palm Beach County, Florida, in Deed Book 1054, et Page 452. (b} Street address, city, zip, of the Property ia 306 Northeast 2nd Street, Delray Beach, Florida 33444 (c) Personalty: ix. P~CHASE P~c~: ................................... $ 280r000.00 PAIg~NT~ (a) Deposit(s) to be held in escrow by Donald C. McGraw in the amount of $ lf000.00 (b) Additional escrow deposit (up to 10%) to be held by Robert W. Federspiel, Esq., within ten (10) days after Effective Date in the amount of $ 27,000.00 (C) Balance to close (U.S. cash, LOCALLY DRAWN certified Or cashier's check), subject to adjustments and prorations $ 252,000.00 III. TIM~ FOR ACCePTANCe; RFFECTI~ 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 April 30, 1995, the deposit(s) will, at Buyer's option, be returned to Buyer and this offer withdrawn. A facsimile copy of this Contract for Sale and Purchase ("Contract") and any signatures hereon shall be considered for all purposes as originals. The date of Contract ("Effective Date") will be the date when the last one of the Buyer and the Seller has signed this offer. IV. TITL~ rv-~DBNCE: At least ten (10) days before closing date, Buyer shall, at Buyer's expense, deliver to Buyer or Buyer's attorney, in accordance with Standard A, (CHECK (1) OR (2)): (1)Dabstract of title or (2)ltitle insurance commitment and, after closing, owner's policy of title insurance. V. CI~3~IN~ DATE~ This transaction shall be closed and the deed and other closing papers delivered by a cash purchase closing on September 1, 1995, unless extended by other provisions of Contract. VI. RRSTRI~TIOHS; BASEMENTS; LIMITATIONS: Buyer shall take title subject tot zoning, restrictions, prohibitions and other requirements imposed by governmental authority; restrictions and matters appearing on the plat or otherwise common to the subdivision; public utility easements of record (easements are to be located contiguous to Real Property lines and not more than 10 feet in width as to the rear or front lines and 7~ feet in width as to the side lines, unless otherwise stated herein); taxes for year of closing and subsequent years; assumed mortgages and purchase money mortgages, if any; other None; provided that there exists at closing no violation of the foregoing and none of them prevents use of Real Property for purpose(s). VII. O~CUPANCY: Seller warrants there are no parties in occupancy other than Seller; but if Property ie intended to be rented or occupied beyond closing, the fact and terms thereof shall be stated herein, and the tenant(s) or occupants disclosed pursuant to Standard F. Seller agrees to delivery occupancy of Property at time of closing unless otherwise stated herein. If occupancy is to be delivered before closing, Buyer assumes ell 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 es of time of taking occupancy unless otherwise stated herein or in a separate writing. VIII. TYPBW~X%'~EN OR ~ANDWRITTEN PROVISIONS: Typewritten or handwritten provisions shall control all printed provisions of Contract in conflict with them. IX. RIDEB~: (CHECK if any of the following Riders are applicable and are attached to this Contract): a)DCoastal Construction Control Line Rider b)DCondominium Rider c)~Foreign Investment in Real Property Tax Act Rider d)~Insulation Rider e)OFHA/VA Rider f)[]Other: X. ASSIGNABILITY: (CHECK (1) o, (2)): Buyer (1)lmay assign or (2}~ay not assign Contract. XI. SPECIA~C~USES: (CHECK (1) o~ (2}): Addendum (1)lis attached OR (2)~is not applicable. XZZ. TIME IS OF a-~g ESSENCE OF THIS (XH~fBACT. XIII. DI~: Buyer ~acknowledges or Ddoes not acknowledge receipt of the agency/radon/compensation and estimated closing costs disclosures. BUYER'S INITIALS Buyer Date Seller Date Social Security Social Security or Tax ID No. or Tax ID No. Buyer Date Seller Date Social Security Social Security or Tax ID No. or Tax ID No. Deposit(s) under Paragraph II received. IF OTHER THAN CASH, THEN SUBJECT TO CLEARANCE: Robert W. Federspielm (Escrow Aqent) Sy: Robert W. Federspiel SELLERt DONALD C. McGRAW, JR. BUYER= CITY OF DELRAY BEACH PROPERTY ADDRESS~ 306 Northeast 2nd Street, Delray Beach, Florida 33444 XIV. SPECIAL CLAUSES (Continued)~ A. RADON GAS* Radon gas is 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 unit. Paragraph N of the Standards for Real Estate Transactions attached to this contract is hereby deemed to include an inspection for radon gas. B. 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 rec/ulations 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 "Withholding Document") in proper form es 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 Section 1445 and to remit the amount so withheld and report such information as required under the Regulations to the Internal Revenue Service. C. The parties hereby agree that this Contract is assignable by the Buyer, without recourse, to The CRC Recovery Foundation, Inc. D. The soil, surface water, drainage requirements and runoff availability, geological and environmental conditions, and state of the property being purchased must be acceptable to Buyer in Buyers' discretion. This shall be determined by test boring and other soil, geological and engineering studies which may be conducted by Buyer at Buyers' expense within sixty (60) days from the effective date of this Contract. Notice of the results of such testing shall be furnished to Seller. During the term of this Contract, the Buyer, or Buyers' employees, agents, representatives, or assigns, shall have full and complete right to enter upon the property for the purpose of making any and all inspections, tests and studies of the property. E. This Contract is contingent upon (i)the simultaneous closing on the sale of the subject property by the City of Delray Beach to The CRC Recovery Foundation, Inc., or (ii)acceptance of an Assignment of this Contract from the City of Delray Beach to The CRC Recovery Foundation, Inc., in form acceptable to the city of Delray Beach. In the event either of the above-described events shall not have occurred on or before September 1, 1995, the City of Delray Beach shall have the right but not the obligation to cancel this Contract and receive a full refund of all deposits paid hereunder. Page 4 Contract. for Sale and Purchase Sellers Donald C. M~Graw, Buyers C£ty of Delray Beaoh F. Hotwithstanding any provisions of this Agreement to the contrary, the Buyer will obtain at Buyer's expense title insurance on the subject property and the Seller shall pay all Documentary Stamp Taxes. G. The parties warrant and agree that there is no broker involved in this transaction. B. The Seller has disclosed to the Buyer that there currently exists a certain encroachment of the subject building and driveway onto the Florida East Coast Railway Company Right-of-Way, which such encroachment is the subject of a lease between Seller and FEC. The Buyer shall have ninety days (90} from the date of this Contract to obtain a survey of the subject property showing such encroachment and reviewing all documentation relating to such encroachment including the above-referred to Lease with the FEC. This Contract is contingent upon the Buyer's determination that the status of such encroachment is acceptable to Buyer in Buyer's sole discretion and further subject to such Lease, FEC being duly assigned to the Buyer with the consent of the Landlord. SELLER'S INITIALS: BUYER'S INITIALS: , ,. HTANDARD$ FOR REA~ ESTATE TRANSACTIONS A. ~%~X~Or T~TL~: (1)An abstract of title prepared or brought current by a reputable and existing abstract firm (if not exi~tingthenc~rtifiedas cozrect by ~ ~xistin9 fl~} p~r~rtin9 to~ m~ mccurate synopsis of the l~str~e~ts mffecti~9 title to~ Pr~ ~ In the public records of the county wherein Real Property is l~ated, through Effective ~te and which shall c~ence with the earliest public records, or such later date as may be cust~a~ In the county. Upon closin9 of this tr~tl~the~tract shall bec~e the pro~rty of Buyer, subJ~t to the right of retention thereof by first mortgagee until fully paid. (2) A title insurance co~itment issued by a Florida licensed title insurer agreein9 to issue to Buyer, upon ~ng of t~ ~ to ~er, mn ~er's policy of title insurance iB the ~ount of the Ourchsse price, insuring Buyer's title to Real Property, subject only to liens, enc~rances, exceptions Or qualification set forth in this Contract and those which S~I ~ ~g~ by Seller ak or before closing. Seller shall convey a marketable ~ltle s~b~mc% only ~o ~iens, ~tl~s or~ifi~tl~s~t forth Am Contract. ~=ketable title shall be datelined accor~9 to a~plicable Title Standards ~t~ authority of The Florida Bar ~nd in accordance with law. Buyer shall have 30 days, ~f abstraGt, or 5 days, If title c~ltment, fr~ ~te of receivin9 evidence of title to ex.ina it. If title Is found defective, Buyer shall, within 3 days, ~tl~l~ln~lti~lfyl~g defect(s). If the defect(s) render title unmarketable, Seller will have 120 days fr~ receipt of ~otice within which to r~o~e the defect(s), failing which Buyer shall have the option of either accepting the title as t~ As orang a refund of de.sit(s) paid which shall l~ediately be returned to Buyer; thereupon Buyer a~d Seller shall release one another of all further obligations under the Co0tract. Seller will, l~ title is found u~arkekable, use diligent effort to corr~t defect(s} in title within the time provided therefor, including the bringimg of necessa~ suits. ~. ~~~; ~ ~ ~ S~.~: A purchase money mortgage and mortgage note to Seller shall provide ~or a 30 day grace period in the event of default If a first mortgage and a 15 day grace ~riod If second or le~e~ mortgage~ s~l prov~ for rigb~ of p~epa~ent In whole or ~n part without pe~a1~y~ shal1 not ~mik ~ccelerakion or interest adjustment In event of re~aie of Reai Pro~rty~ sha1I require all prior lie~ and enc~rances to be kept In g~d standing and forbid modifications of or future advances u~der prior mortgage(s)~ and the ~ortgage, note and s~curity agr~ment sha11 in fo~d~t~t required by Selier~ but Seller may only require clauses cust~ariiy found i~ mortgages, mortgage notes~ a~d ~l~ ~ks ~ly utilized by saving and loan institutions, or state or national ~ks I~ated In the county wherein ~~s ~. ~ Personalty a~d ~eases being conveyed or assigned wlli~ at Seller's option~ ~ subject to the l~en of a security agre~ent evidenced by recorded financ~g sta~ents. If a ~ll~n mortgage, the f~a~ pa~e~t will exceed the ~ri~c pa~ents thereon. i~tangible tax and recordih9 purchase mon~ mortgage to Seller, deed and financing stat~ents shall be ~aid by Buyer. prorat~t~gh~y~o~cl~i~g. Buyer shall have the option of taking OVer any existl,~ ~licles of ~nsura.ce, ~f sss~able, in which e~ent pr~l~s shall ~ prorated. Cash at closl~ shall ~ increased or decreased as may be reguir~ by ~roratio,s. (if r~red) or ~ an appropriately l~sed Florida comtractor. Buyer shall, prior to Buyer's ~cupah~ receivi.g retur~ of de~sit(s}. ,auch o. th~ mutually aoceptable escrow agent for a period of not longer than 5 days from and after closing data. If Seller's title l~ rendered unmarhetable, through no fault of Buyer, Buyer shall, wlthie the 5 day period, notify Seller in writing of the defect and Seller ahall have 30 days from date of receipt of such notification to cure the defect. If Seller falls to timely cure the defect, all depoalt(s) shall, upon written demand by Buyer and wlthin 5 days after demand, be returned to Buyer and as to any intervening defect except as may be available to Buyer by virtue of warranties contained In the deed. If a portion of the purchase price is to be derived from institutional financing or refinancing, requirements of the lending Institution as to in this Contract. Seller shall have the right to require from the lending institution a written commitment that it will ~ot withhold disbursement of mortgage proceeds as a result of any title defect attributable tO Buyer-mortgagor, The escrow and closing procedure required by this Standard may be waived if title agent insures adverse matters pursuant to Section 627.7841, F.S.(1989), as amended. Q. ~: Any escrc~ agent ("~qent") receiving funds or equlvale,t is authorized and agrees by acceptance of them to deposit Failure of clearance of funds shall not excuse Buyer's performance. If in doubt as to Agent's duties or liabilities under the mutually agree to its disbursement, or until a Judgment of a court of competent Jurisdiction shall determine the rights of the parties orA gent may deposit with the clerk of the circuit court haying Jurisdiction of the dispute. Upon notifying all ~artles concerned 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, incurred with the fees and costs to be paid from and out of the escrowed funds or equivalent and charged and swarded as court Costs in favor of the prevailing party. Parties agree that Agent shall not be liable to any party or person for mlsdellvery to Buyer or Seller of lt~ns subject to this escrow, unless such misdelivery is due to willful breach of Contract or gross negligence of Age,t. R. ATR~E~F~; ~OSTS: In any litigation arising out of this Contract, the prevailing party in such litigation which, for S. FAILO~ OF ~ffOP~%~: If Buyer falls to perform this Contract within the time specified (including payment of all ~%~osit(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 e~forceSeller's rights under this Contract. If, for any reason other than failure of Seller to make Seller's title marketable elect tole ce lYe the ret~r~of Buyer's depositts) without thereby walving any action for damages resulting fr~ Seller's breach. T. ~%~TNOT~O0~%~L~; ~.~S ~C~; ~OTIC~: Neither this Contract nor any notice of it shall be recorded in any public 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. guardian's deed, as appropriate to the status of Seller, subject only to matters contained in Paragraph VII and those otherwise in this Contract. No modification or change in this Contract shall be valid or binding upon the parties unless in writing and which are not readily observable by Buyer or which have not been disclosed to Buyer. d&y of _~ 1995, ~y and between C~TY OP DEL~AY BRACH, Florida Municipal Corporation, hereinafter referred ~o r~erred to as "~signee." WITNES~ETH ~ 'Contract")l and wl=hou= recourse ~o tho Assignor; and ~SR~ ~ho ~s~gneo ~s deoi=ous of acquiring ~ rights ~n tho sub~oc~ Contract. N~, T~FO~, in consideration of tho e~ of Ton and no/100 ~1l~s ($10.00) and o~her ~od and valuable congiderm~lon from one party to tho o~horr the ~colp= and mduquacy o~ w~lch lo herub~ 1. The Aasl~or hereby aEsignB ~11 of its right, title and in~eruHt in and ~o =hac certain Contract attached hereto ~signoe wl~hou~ recourse tu the ~oignor. 2. Tho ~e~ee hereby nuue~te such aM.~g~n~ and agrees ~e~s and =on~it~ons contained In I~ld Contract. 3. The AssiZes agreeu ~u lndemnl~y and hold the and conditions of the sub~ec~ Contract. 4. ~e ~signor hereby agr~s to loan =o the Assignee funds requ~d =o pay ~he pu~hasu price regulred under the sa~d Contract lncludln9 ~he de. sit ~nies in the total s~ of ~ llun~ed Thousand Dollars ($280~000.00) undor =hu turm~ and condl~lon~ ~ultanooum with tho 5. The A~signor agrees to provide and pay for the title of the environmental a~seesments. In conaideration of the A~aignor hiving eBsigned the A. Tho A~eignoo hereby grants to tho Assignor for a to~ purchose or any other manner of conveyance. ~he Assignee shall of such real property and the Assignor shall have a period of ~ove-d~crlb~d purch~ prlc~ by delivering wrlt~en notice ~h~reof th~ Assignor shall have exercised ~s r~gh= of ~urc~ase, =he closing shall take place wi=h~n thirty days (30) thereafter. One l~ndred Thousand Dollar~ ($100,000.00) durln9 1995 und 1996 tu Crossroads C1~, including ~ns~alling an ~l~vator as required by the applicable ~ver~entel code~. b~ r~oorded by th~ ~ity of D~lray B~u=h tn the Public Records of Palm Beach County~ Florida. Attest~ CITY OF DEL~Y ~EACH City Clerk M A Y 0 R Attea~ T~E C~C I~ECOVE~Y FOUNDATION, INC. Bye_ PREPARED BY AND RETURN TO: ROBERT W. FEDERSPIEL, ESQ. 501 EAST ATLANTIC AVENUE DELRAY BEACH, FL 33483 (407) 276-2900 MORTGAGE THIS~OP.T~GE, is hereby executed the __ day of , 1995, by THE CRC RECOVERY FOUNDATION, INC., whose post office address is 241 N.E. 2nd Avenue, Delray Beach, Florida 33444, called the "Mortgagor", to CITY OF DELRAY BEACB, a Florida municipal corporation, whose post office address is 100 N.W. 1st Avenue, Delray Beach, Florida 33444, hereinafter called the 'Mortgagee." WITNE$SETH~ That for good and valuable considerations, and also in consideration of the aggregate sum named in that certain promissory note of even date herewith, hereinafter described, the said Mortgagor does grant, bargain, sell, alien, remiss, release, convey and confirm unto the said Mortgagee, in fee simple, all that certain tract of land of which the said Mortgagor is now seized and possessed, and in actual possession, situate in Palm Beach County, State of Florida, described as follows: The North 100 feet of Block 91, lying East of Florida East Coast Railway Company right-of-way in the City of Delray Beach (formerly Linton), Florida, according to the Plat thereof recorded in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, in Plat Book 1, at Page 3, which is the same property as shown on the Plat of the resubdivision of Blocks 91 end 92, and the West Ball of Block 99, Town of Linton, Dads County, Florida, filed May 9, 1912, and recorded in Plat Book 2, Page 21, Palm Beach County, Florida, records, shown as being situate on the northerly side of the resubdivision of Block 91, being an area 100 feet from the north to south on the east, running west of the Florida East Coast Railway Company right-of-way, and designated "not included" and being the property in part conveyed by Calvin W. Garner and Eulalie M. Garner, his wife, to L.C. Vaughn, by deed dated April 26, 1954, recorded in the Public Records of Palm Beach County, Florida, in Deed Book 1054, at Page 452. TOGETHER WITH any and all buildings and improvements now or hereafter erected thereon; and TOGETHER WITH all and singular the tenements, hereditaments, and appurtenances belonging to the land or any part thereof, hereby mortgaged or intended so to be or in anyway appertaining thereto (including but not limited to all income, rents and profits arising therefrom), all streets, alleys, passages, ways, watercourses, all other rights, liberties, and privileges of whatsoever kind or character, the reversions and remainders, and all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well as law as in equity, of Mortgagor, in and to all of the foregoing or any or every part thereof (said land, buildings, improvements, tenements, and other property interests being hereinafter sometimes collectively referred to as the "property" or the "premises"); TO HAVE AND TO HOLD the same unto the said Mortgagee, and Mortgagee's successors and assigns forever. AND said Mortgagor does covenant with said Mortgagee that said Mortgagor is indefeasibly seized of said land in fee simple; that the said Mortgagor has full power and lawful right to convey said land in fee simple as aforesaid; that, other than has been specifically disclosed by Mortgagor to Mortgagee in writing, said land is free from all encumbrances; that said Mortgagor will make such further assurances to perfect the fee simple title to said land in said Mortgagee as may reasonably be' required; and that said Mortgagor does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever. PROVIDED ALWAYS, that if said mortgagor shall pay unto the said Mortgagee that certain promissory note, sometimes hereinafter referred to as the 'note", of which the following in words and figures is a true copy, to wits SEE COPY OF NOT~ ATTACHED HERETO and shall perform, comply with and abide by each and every the stipulations, agreements, conditions and covenants of said note and of this mortgage, then this mortgage and the estate hereby created shall cease and be null and void. AND the said Mortgagor hereby covenants and agrees: 1. This Mortgage is not assumable. In the event the subject property or any interest therein shall be sold, conveyed or in any other manner disposed of, including by Agreement for Deed, this Mortgage shall become due and payable in full. 2. To pay all and singular the principal and interest and other sums of money payable by virtue of said note and this deed, or either, promptly on the days respectively the same severally come due, and to promptly perform, comply with and abide by every stipulation, agreement, condition and covenant set forth herein and in said note, time being of the essence as to all such obligations except as otherwise specifically provided for herein or in said note. 3. To pay all and singular the taxes, assessments, levies, liabilities, obligations and encumbrances of every nature on said described property each and every. Specifically, Mortgagor shall pay all real estate taxes, water and sewer rents, other similar claims and liens assessed or which may be assessed against the premises or any part thereof, without any deduction, defalcation, or abatement within ten (10) days before the same become delinquent or commence to bear interest or penalties, whichever first occurs, and not later than such date, shall furnish to Mortgagee receipts for the payment in full of real estate taxes (and, upon the request of the Mortgagee, receipts for payment of any other charges ae above referred to), and shall pay every other tax, assessment, claim, lien, or encumbrance which may at any time be or become a lien upon the premises prior to the lien of this mortgage; provided, however, that if Mortgagor shall in good faith, and by proper legal action, contest any such taxes, claims, liens, encumbrances, or other charges, or the validity thereof, then Mortgagor shall not be required to pay the same, or to produce such receipts, as long as such contest operates to prevent collection or tax certificate sale, and is maintained and prosecuted with diligence, and shall not have been terminated or discontinued adversely to Mortgagor. 4. To pay all and singular the costs, charges and expenses, including lawyer's fees, reasonably incurred or paid at any time by said Mortgagee because of the failure on the part of the said Mortgagor to perform, comply with and abide by each and every the stipulations, agreements, conditions and covenants of said note and this mortgage or either. 5. To keep the buildings and improvements now or hereafter situate on said land and all personal property used in the operation thereof continuously insured against loss by fire, flood and such other hazards as may from time to time be requested by Mortgagee, in a company duly qualified and authorized to do business in Florida, in an amount not less than the full insurable value of such buildings and improvements; such insurance policy or policies shall contain the usual standard mortgagee clause making the loss under said policies payable, without contribution, to the Mortgagee as the Mortgagee's interest may appear, and a certificate and/or a copy of the policy, at Mortgagee's election, evidencing such insurance coverage shall be delivered to said Mortgagee; and not less than thirty (30) days in advance of the expiration of each policy, to deliver to said Mortgagee a renewal certificate thereof, together with a receipt for the premium of such renewal. Every policy of hazard insurance delivered to Mortgagee shall provide for at least thirty (30) days prior written notice to Mortgagee before such policy may be canceled, changed, altered, amended, or modified, or before any coverage therein may be reduced, deleted, amended, changed, or canceled by either the party named as the insured, or the insurance company issuing the policy. If the insurance, or any part thereof, shall expire, or be withdrawn, or become void or unsafe by Mortgagor's breach of any condition thereof or become void or unsafe by reason of the failure or impairment of the capital of any company in which the insurance may then be carried, Mortgagor shall immediately procure new insurance on the mortgaged property. In the event of any loss or damage, Mortgagor will give prompt notice thereof to Mortgagee. Any insurance proceeds, or any part thereof, shall be applied only to the indebtedness secured by mortgages on the property or to the restoration or repair of the property damaged. So long as any Owners Association maintains a "Master" or "Blanket" policy on the mortgaged property which provides insurance coverage against fire, hazards included within the terms "extended coverage", and such other hazards as Mortgagee may require, and in such amounts and for such periods as Mortgagee may require, then the foregoing provisions of section 4 hereof shall be superseded by the provisions of the declaration, articles of incorporation or agreement, bylaws or other constituent document of said association, or of applicable law, to the extent necessary to avoid a conflict between such provisions and said paragraph; for any period of time such insurance is not maintained, the preceding clause shall not apply. Mortgagor shall give Mortgagee prompt notice of any lapse in such hazard insurance coverage. In the event of a distribution of hazard insurance proceeds in lieu of restoration or repair following a loss to the aforesaid property, any proceeds payable to Mortgagor are hereby assigned and shall be paid to Mortgagee for application to the sums secured hereby. 6. To keep said lands and the buildings and improvements now or hereafter situate thereon in good condition and repair, to permit, commit or suffer no waste, impairment or deterioration of said property or any part 2 thereof, and to refrain from removing, demolishing or altering the structural character or integrity of any building at any time erected on the aforesaid lands without the prior written consent of Mortgagee, which consent will not be unreasonably withheld. Mortgagor shall not use, store, dispose of, or allow third parties to use, store or dispose of, in, upon, under, or about the property, or otherwise in any way allow the property to be contaminated by, any toxic, hazardous, or otherwise environmentally detrimental waste, substance or material, including, without limitation, as the same is defined, listed or contemplated in the Comprehensive Environmental Response, Cc~pensation and Liability Act of 1980 ("CERCLA") 42 U.S.C. S 9601, et seq., the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law 99-499, 100 Stat. 1613, the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. S 6901, et seq., the Florida Resource Recovery and Management Act, ~ 403.701, et seq., Florida Statutes, the Pollutant Spill Prevention and Control Act, S 376.011-376.17 and ~ 376.19-376.21, Florida Statutes and like laws, regulations, end ordinances, as amended to date (collectively, "Toxic Substance"), nor allow any asbestos or other Toxic Substance to be used in the construction or remodeling of any building or other improvements upon the Property. Mortgagee shall have the right to enter upon the property, including interiors of any building, at reasonable times and upon reasonable notice to Mortgagor, to inspect the order, condition, and repair of such property. 7. To comply, as far as they affect the mortgaged property, with all statutes, laws, ordinances, decrees and orders of the United States, the State of Florida and of any political subdivision thereof, and all restrictive covenants which apply to said property. 8. To keep in good standing any mortgage which ~mmy now be, as heretofore disclosed to Mortgagee, or subsequently become, prior in right, title and dignity to this mortgage, and to refrain from accepting modifications thereof or future advances thereunder. Mortgagor agrees that any default under such a prior mortgage shall be deemed to be a default hereunder. 9. This instrument creates a security interest in favor of Mortgagee as to any personal property sold by Mortgagee to Mortgagor within thirty (30) days of the date hereof and constitutes a security agreement under the Uniform Commercial Code. Mortgagor shall execute, file, and refile such financing statements or other security agreements as Mortgagee shall require from time to time with respect to said personal property. All obligations, rights and remedies stated herein to relate to real property shall also apply as to such personal property, where applicable. 10. If any part of the premises, but lees than all, is taken or acquired, either temporarily or permanently, by any conde~nation proceeding or by the right of eminent domain, any award or payment received by the Mortgagor shall be payable jointly to the parties hereto. Said payment or award shall be first utilized to restore or repair any damage to the premises occasioned by said taking. Thereafter, the Mortgagee shall receive that proportion of the award or payment that the award or payment shall bear to the sums then secured hereby. Said amount shall be applied to the then existing balance due the Mortgagee and the remaining portion of the award or payment shall be payable to the Mortgagor. If either the Mortgagor or Mortgagee shall feel that the sum of the award shall not represent the fair market value of the Premises immediately prior to the taking, that party may demand a determination of the fair market value of the premises. In such event, each party shall, within five (5) days from the delivery of said notice, appoint an appraiser to determine the fair market value of the premises. Thereafter, said appraisers shall appoint a third appraiser in accordance with the rules of the American Arbitration Association. Said third appraiser shall be appointed within ten (10) days after the appointment of the initial two appraisers. Within twenty (20) days after the appointment of the third appraiser, the appraisers shall by majority vote determine the fair market value of the premises. Said proceedings shall be conducted in accordance with the rules and regulations of the American Arbitration Association, and all proceedings shall be held in Palm Beach County, Florida. Thereupon, the Mortgagee shall receive that portion of the award or payment as the award or payment shall bear to the fair market value of the premises as determined by the foregoing proceedings and said amount shall be applied to the then unpaid balance of the obligation secured hereby. In the event that all of the aforesaid property Aa so taken or acquired by any condemnation proceedings or by the right of eminent domain, any award or payment received by the Mortgagor shall be paid to the Mortgagee for application against the then existing balance of the sums secured hereby and any remaining portion of the award or payment shall be retained by the Mortgagor. 11. In case Mortgagor shall fail to promptly discharge any obligation or covenant as provided herein, the Mortgagee shall have the option, without the same constituting a waiver of default, to foreclose or exercise any other remedy hereunder, or to perform on behalf of the Mortgagor any act to be performed by Mortgagor in discharging such obligation or covenant, and any ~mount which Mortgagee may expend in performing such act, or in connection therewith, with interest thereon at the maximum rate allowable under Florida law or Federal law (if same preempts Florida law), together with all expenses, including reasonable attorney's fees incurred by Mortgagee, shall be in~nediately payable by Mortgagor 3 and shall be secured by this mortgage~ and the Mortgagee shall be subrogated to any rights, e~uitiee and liens so discharged. 12. That if the principal or interest on the note herein described or any part of the indebtedness secured by this mortgage or interest thereon, be not promptly and fully paid within Fifteen (15) days next after the same become due and payable, or in the event of default being made in the full and prompt performance of any other covenants or agreement contained herein or in the note secured hereby continuing for fifteen (15} days from the date written notice thereof ie mailed to Mortgagor, or upon institution of foreclosure proceedings relative to any default under a prior mortgage, or if the Mortgagor shall make an assignment for the benefit of creditors, or if a receiver be appointed for the Mortgagor or any part of the mortgaged property, or if there is filed by or against Mortgagor e petition in bankruptcy, or if Mortgagor ia adjudicated a bankrupt or files any petition or institutes any proceedings in bankruptcy, then on the happening of any one or more of these events, this conveyance shall become absolute, and the whole indebtedness secured hereby shall immediately become due and payable, at the o~tion of the Mortgagee, and this Mortgage may thereupon be foreclosed for the whole of said money, interest in the maximum lawful rate permissible, and costs~ or, if then permitted by law, Mortgagee may foreclose only as to the eum~aat due, without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the property shall be sold subject to all remaining items of indebtedness~ and Mortgagee may again foreclosure, in the same manner, as often ae there may be any sum past due. 13. The Mortgagee may, at any time while a suit ia pending to foreclose or to reform this mortgage or to enforce any claims arising hereunder, apply to the court having Jurisdiction thereof for the appointment of a receiver, and such court shall forthwith appoint a receiver of the premises and all other property covered hereby, including all and singular the income, profits, rents, issues and revenues from whatever source derived, and such receiver shall have all the broad and effective functions and powers in anyway entrusted by a court to a receiver and such appointment shall be made by such court as an admitted equity and s matter of absolute right to said Mortgagee, and without reference to the adequacy or inadequacy of the value of the property mortgaged or to the solvency or insolvency of said Mortgagor or the defendants, and such income, profits, rents, issues and revenues shall be applied by such receiver according to the lien of this mortgage and the practice of such court. 14. Ae further security for payment of the indebtedness and performance of the obligations, covenants, and agreements secured hereby, Mortgagor hereby assigns to Mortgagee any leases already in existence and to be created in the future, together with all rents to become due under existing or future leases. This assignment, however, shall be o~erative only in the event of the occurrence of a default hereunder, or under the note or other instrument secured hereby, remaining uncured at the expiration of the grace period, if any, provided above in respect to such default; and in any such case Mortgagor hereby confers on Mortgagee the exclusive power, to be used or not in Mortgagee'a sole discretion, to act aa agent, or to appoint a third person to act as agent for Mortgagor, with ~ower to take possession of, and collect all rents arising from, the premises and apply such rents, at the option of Mortgagee, to the payment of the mortgage debt, taxes, costs of maintenance, repairs, expenses incident to managing, and other expenses, in such order of priority as Mortgagee may, in Mortgagee'a sole discretion determine, and to turn any balance remaining over to Mortgagor; but such collection of rents shall not operate as an affirmance of the tenant or lease in the event Mortgagor's title to the premises should be acquired by Mortgagee. Mortgagee shall be liable to account only for rents and profits actually received by Mortgagee. In exercising any of the powers contained in this paragraph Mortgagee may also take ~ossession of, and for these purposes use, any and all personal property contained in the premises and used by Mortgagor in the rental or leasing thereof or any part thereof. At no time prior to satisfaction of the obligations secured hereby shall Mortgagor collect or receive rents from any tenant in excess of three (3} months in advance. 15. Mortgagor hereby waives and releases all benefit that might accrue to Mortgagor by virtue of the homestead exemption or any other present or future laws exempting the property, or any part of the proceeds arising from any sale thereof, from attachments, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment. 16. The waiver by either party of a breach of any provision of this mortgage by the other shall not operate or be construed aes waiver of any subsequent breach. 17. Ail agreements between Mortgagor and Mortgagee are hereby expressly limited eo that in no contingency or event whatsoever shall the amount paid, or agreed to be paid, to Mortgagee for the use, forbearance, or detention of the money due under the note or other obligation secured hereby exceed the maximum amount permissible under applicable law. If, due to any circumstances whatsoever, fulfillment of any provision hereof, at the time ~erformance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then the obligation to be fulfilled shall be reduced to the limit of such 4 validity, and if fro~ any circumstances Mortgagee should ever receive as interest an amount that would exceed the highest lawful rate, such amount that would be exceeeive interest shall be applied to the reduction of the principal amount owing under the note or other obligation secured hereby and not to the payment of interest. 18. Notices to Mortgagor shall be deemed sufficient if mailed or delivered to the street address of the property, if improved, or if not or if Mortgagor designates another address, to such other address designated in writing by Mortgagor, or if none ia designated, to the address of the maker described in the copy of note attached hereto. Notices to Mortgagee shall be sent to Mortgagee's address identified herein, or such addrese hereafter specified in writing by Mortgagee, or if none is specified, to the address specified in the copy of note attached hereto. Any notices to be given hereunder by either party to the other maybe effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed co~unicated as of four (4} days after mailing. 19. This mortgage shall be construed under and in accordance with the laws of the State of Florida, and all obligations of the parties created hereunder are performable in Palm Beach County· Florida. 20. This mortgage shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors· and, where permitted by this mortgage, their assigns. 21. In case any one or more of the provisions contained in this mortgage shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this mortgage shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 22. The words "Mortgagor" and "Mortgagee" include singular or plural, individual or corporation, and the respective heirs, executors, administrators, successors, and assigns of Mortgagor and Mortgagee, as the context requires. The use of any gender applies to all genders. IN WITNESS ~REOF, Mortgagor has hereunto set Mortgagor's hand and seal the day and year first above written. Signed, sealed and delivered in our presences THE C~C RECOVERY FOUNDATION, INC. -(Print Name) By: -(Print Name) BTATE OF FLORIDA COUNTY OF PALM BEAC~ THE FOREGOING INSTRUMENT was acknowledged before me this __ day of · 1995, by , as of THE CRC RECOVERY FOUNDATION, INC., who is personally known to me or who has respectively produced as identification and did not take an oath. Notary Public [ SEAL ] Commission So., My commission expires.' PROMISSORY NOTE $280,000.00 Delray Beach, Florida , 1995 FOR VALUE RECEIVED, the undersigned, (jointly and severally, if more than one) promises to pay to CITY OF DELRA¥ BEACH, a Florida municipal corporation, or order, in the manner hereinafter specified, the principal sum of Two Hundred Eighty Thousand Dollars ($280,000.00) bearing no interest. The said principal shall be payable in lawful money of the United States of America at 100 N.W. 1st Avenue, Delray Beach, Florida 33444, or at such place as may hereafter be designated by written notice from the holder to the maker hereof, on the date and in the manner following: Commencing on the 1st day of September, 1997 and on the 1st day of September of each consecutive year thereafter up through and including the year 2001, The CRC Recovery Foundation, Inc., will pay to the City of Delray Beach the sum of Fifty Six Thousand Dollars ($56,000.00) each. If default be made in the payment of any of the sums herein or in the performance of any of the agreements contained herein, then the entire principal sum shall at the option of the holder hereof become at once due and collectible without notice, time being of the essence; and said principal sum shall bear interest from such time until paid at the highest rate allowable under the laws of the State of Florida. Failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. Each person liable hereon whether maker or endorser, hereby waives presentment, protest, notice, notice of protest and notice of dishonor and agrees to pay all costs, including a reasonable attorney's fee, whether suit be brought or not, if, after maturity of this note or default hereunder counsel shall be employed to collect this note. Whenever used herein the terms "holder," "maker" and "payee" shall be construed in the singular or plural as the context may require or admit. Maker's Address £1T¥ DF I)ELRR¥ BERgH CITY ATTORNEY'S OFFICE ?~oo ~w ~ ^~,~. ~.],^~ .~^~., ~o.~,, ~.~ FACSIMILE 407/278-4755 Writer's Direct Line: (407) 243-7091 DELRAY BEACH Ail. America City MEMORANDUM ~llll~llll' DATE: April 12, 1995 1993 TO: City Commission FROM: Susan A. Ruby, City Attorney SUBJECT: McGraw Property Acquisition and Assignment The Resolution and attached documents related to the acquisition of the McGraw property, provide that the City enter into a contract with Mr. McGraw assignable to CRC Recovery Foundation, Inc. (CRC) with the City holding a mortgage on the property for a seven year period. The transaction, which requires an assignment of the contract to CRC, will save the City and parties from duplicative closing costs. The Seller will pay documentary stamps, furnish the deed, bill of sale, mechanic's lien affidavit, etc. The City will pay for title insurance, real property survey and one-half of the cost of an environmental survey. CRC, as assignee, will pay the other half of the environmental survey at closing. Closing is set for September 1, 1995. The agreement contains a Right of First Refusal which permits the City to purchase the property for two hundred eighty thousand dollars ($280,000.00), if CRC decides to transfer the property during the mortgage term. By copy of this memorandum to David Harden, City Manger, our office requests the Resolution which incorporates the contract, the assignment agreement, mortgage and promissory note, be placed on the August 18, 1995 City Commission regular agenda for Commission approval. Please call if you have any questions. ~,~ ~///~/~ cc: David Harden, City Manager Alison MacGregor Harty, City Clerk mcgraw9, sar ~Pr/ntedonRecycledPaper