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R03-093RESOLUTION NO. R03- Oq°~ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING THE ACQUISITION OF PROPERTY FOR THE HEART OF BOY'NTON BEACH PROJECT FROM GARY L. HOLLOWAY; AUTHORIZING THE CITY MANAGER TO EXECUTE ALL NECESSARY DOCUMENTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission, upon recommendation of staff, has deemed it to be the best interests of the citizens and residents of the City to acquire property located at 1100 1sT Street, owned by Gary L. Holloway, for the amount of $75,000.00, as part of the ttion of the Heart of Boynton Beach Project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as true and correct and are hereby made a specific part of this Resolution upon adoption .Section. 2. The City Commission of the City of Boynton Beach, Florida does hereby the acquisition of property from Gary L. Holloway, for the implementation of Heart >fBoynton Beach Project and authorizes the City Manager to execute all necessary documents. Section 2. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this ~} day of June, 2003. ,:\CA\RESO\Rcal Estate\Purchase of Holloway Property - Heart ofBoynton Projectdoc ICorporate Seal) Estate\Purchase of Holloway Property - Heart of Boynton Project doc AGRF~F~MENT FOR PITRCHASF~ AND S~,IJFJ OF RF~,IJ PROPERTY THIS AGREEMENT is made and entered into by and between CITY OF BOYNTON BEACH, FLORIDA, a FLORI~A municipal corporation (hereinafter referred to as "PURCHASER"), and GARY W. HOLLOWAY (hereinafter referred to as "SELLER"). WITNESSETH In consideration of the mutual agreements and upon and subject to the terms and conditions herein contained, the parties hereto agree as follows: 1. DEFINITIONS. The following terms when used in this Agreement for Purchase and Sale shall have the following meanings: 1.1 l.and. That certain parcel of Land located at 1100 N.W. 1st Street, Boynton Beach, Florida 33435, and consisting of a single family residence, which is described on Exhibit "A" ("Legal Description") attached hereto and made a part hereof. 1.2 Closing. The delivery of a Warranty Deed to PURCHASER concurrently with the delivery of the purchase price and other cash consideration to SELLER. 1.3 Closing Date, The date upon which the closing occurs. 1.4 Deed. A Warranty Deed, which shall convey the Land from SELLER to PURCHASER relative to the Land consisting of a single family residence. 1.5 Eamegt Money. The sum of Five Thousand and 00/100 ($5,000.00) Dollars has been delivered from PURCHASER to Escrow Agent pursuant to Section 2.1 set forth herein. 1.6 PlIRCHASER'S Address. City of Boynton Beach, 100 East Boynton Beach Boulevard, Boynton Beach, Florida 33425, attention: Octavia S. Sherrod. 1.7 SEIJlFR'~q Address. Gary W. Holloway, __3037 N_E_ 13th Ave_: Oakland Park Florida 33334 . Page 1 1.8 Other Definitions, The terms defined in any part of this Agreement shall have the defined meaning wherever capitalized herein. Wherever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of each gender shall be deemed to comprehend either or both of the other genders. As used in this Agreement, the terms "herein", "hereof' and the like refer to this Agreement in its entirety and not to any specific section or subsection. 2. PlIRCHASE AND SAI,F,. Subject to the provisions of this Agreement, the SELLER hereby agrees to sell to PURCHASER, and PURCHASER hereby agrees to purchase from SELLER, the Land previously identified on Exhibit "A" for the total purchase price of Seventy- Five Thousand and 00/100 ($75,000.00) Dollars and upon and subject to the terms and conditions hereinafter set forth. 2.1 ~. Concurrently with the execution of this Agreement by PURCHASER and SELLER, PURCHASER shall deposit and cause to be placed in an escrow account maintained by GOREN, CHEROF, DOODY AND EZROL, P.A. monies in the amount of Five Thousand and 00/100 ($5,000.00) Dollars. The Escrow Agent is located at: GOREN, CHEROF, DOODY AND EZROL, P.A., 3099 East Commercial Blvd., Suite 200, Fort Lauderdale, Florida, 33308. This Agreement is contingent upon the SELLER'S ability to deliver good and marketable title for the Land, in accordance herewith. Should the SELLER not be able to perform hereunder or fail to deliver good and marketable title for the Land, the PURCHASER shall be entitled to a refund of the entire sum of Five Thousand and 00/100 ($5,000.00) Dollars, held by the Escrow Agent. At closing, a copy of the closing statement signed by both parties hereto shall be conclusive evidence of the SELLER'S right to receive the deposit. Page 2 2.2 lqalance of Purcha~qe Price. PURCHASER shall pay the balance of the Purchase Price to SELLER at closing by readily negotiable funds drawn on a local financial institution pursuant to the terms of the Agreement for Purchase and Sale or by wire transfer to an account identified by SELLER. 2.3 The Purchase includes: (a) The single family residence and improvements located on the Land; (b) All right-of-ways, alleys, waters, privileges, easements and appurtenances which are on or benefit all the Land; (c) All right, title and interest, if any, of SELLER in any Land lying in the bed of any public or private street or highway, opened or proposed, in front any of the adjoining Property to the center line thereof. The sale also includes any fight of SELLER to any unpaid award to which SELLER may be entitled: (1) due to taking by condemnation of any right, title or interest of SELLER and (2) for any damage to the Land due to change of grade of any street or highway. SELLER will deliver to PURCHASER at closing, or thereafter on demand, proper instruments for the conveyance of title and the assignment and collection of award and damages; (d) All fixtures and articles of personal property attached to or used in connection with the Land as more particularly identified on Exhibit "B" ("Personal Property") as provided by SELLER, which is attached hereto and made a part hereof. SELLER represents that such fixtures and articles are paid for and are owned by SELLER free and clear of any lien or encumbrance. SELLER is to provide a list of Personal Property to PURCHASER within ten (10) days following the effective date of the Agreement; and (e) To the extent transferable, all licenses, permits, contracts and leases, if applicable, with respect to the property. Page 3 3. INSPECTIONS. PURCHASER shall have a twenty (20) calendar day period of time commencing as of the effective date to determine that the Land is satisfactory ("Inspection Period"). Additionally, that the Land has adequate services available and that all Federal, State, County and local laws, rules and regulations have been and are currently being complied with relative to the Land. During the Inspection Period, PURCHASER shall determine that utility services including, water, waste water, electric, telephone and all other utilities are available in the proper size and capacity to serve the existing facilities and installed to the property lines. At all times during the Investigation Period, PURCHASER and its agents shall be provided with reasonable access during normal business hours to the Land for purposes of on-site inspection, if deemed necessary by PURCHASER. The scope of the inspection contemplated herein shall be determined by the PURCHASER as deemed appropriate under the circumstances. In the event that any inspections conducted by the PURCHASER relative to the Land during this period prove unsatisfactory in any fashion, the PURCHASER, at its sole discretion, shall be entitled to terminate this Agreement prior to the twenty (20) day due diligence period. 4. SEI,I,ER'R REPRESENTATIONS. To induce PURCHASER to enter into this Agreement, SELLER makes the following representations, all of which, to the best of his knowledge, in all material respects and except as otherwise provided in this Agreement (i) are now true, and (ii) shall be true as of the date of the closing unless SELLER receives information to the contrary, and (iii) shall survive the closing. In that event, PURCHASER shall be provided immediate notice as to the change to the following representations: 4.1 At all times prior to closing, SELLER shall keep the Land (whether before or after the date of closing) free and clear of any mechanic's or materialmen's liens for work or materials Page 4 furnished to or contracted for, by or on behalf of SELLER prior to the closing, and SELLER shall indemnify, defend and hold PURCHASER harmless fi.om and against all expense and liability in connection herewith (including, without limitation, court costs and reasonable attorney's fees). 4.2 All laws, ordinances, rules, regulations and orders (including, without limitation, those relating to zoning, building, fire, health and safety and environmental control and protection) of any government or agency, body or subdivision thereof, and all standards and regulations of appropriate supervising boards of fire underwriters and similar agencies, bearing on construction, operation or use of the Land or any part thereof in effect on the date hereof, have to SELLER'S knowledge, been complied with by SELLER; that SELLER has received no notice or has no actual knowledge that any such government, agency, body or subdivision thereof, or any employee or official thereof considers the construction or completion of the Land or the operation or the use of the same to have violated any such law, ordinance, rule, regulation, order or standard, or that any investigation has been commenced or contemplated respecting any such possible violation. 4.3 SELLER has no actual knowledge of pending or contemplated condemnation proceedings affecting the Land or any part thereof. 4.4 SELLER has no actual knowledge nor has SELLER received any notice of any litigation, claim, action or proceeding, actual or threatened, against SELLER or the Land by any organization, person, individual or governmental agency which would affect (as to any threatened litigation, claim, action or proceeding, in a materially adverse fashion) the use, occupancy or value of the Land or any part thereof or which would otherwise relate to the Land. 4.5 SELLER represents that it has no actual knowledge nor has it received any notice that the Land has been, is presently or is contemplated to be utilized as a reservoir of hazardous material. As used herein, the term "Hazardous Material" shall mean any substance, water or Page 5 material which has been determined by any state, federal or local government authority to be capable of posing a risk of injury to health, safety and property, including, but not limited to, all of those materials, wastes and substances designated as hazardous or toxic by the U.S. Environmental Protection Agency, the U.S. Department of Labor, the U.S. Department of Transportation, and/or any other state or local governmental agency now or hereafter authorized to regulate materials and substances in the environment (collectively "Governmental Authority(ies)"). 4.6 SELLER has full power and authority to enter into this Agreement and to assume and perform his obligations hereunder; the execution and delivery of this Agreement. 4.7 The SELLER represents to the PURCHASER that the Land is not subject to any deed restrictions or declaration of restrictions running with the Land which would affect the use of the Land. 4.8 SELLER warrants that it will not, between the date of this Agreement and the closing, without PURCHASER'S prior written consent, create by his consent any encumbrances on the Land. For purposes of this provision the term "encumbrances" shall mean any liens, claims, options, or other encumbrances, encroachments, rights-of-way, leases (excluding, however, normal mini-warehouse leases made in the ordinary course of business), easements, covenants, conditions or restrictions. 4.9 SELLER shall not list or offer the property for sale or solicit or negotiate offers to purchase the property while this Agreement is in effect. 5. EVIDF~NCF, OF TITI ,F,. 5.1 Title tn the l,and. SELLER shall convey to PURCHASER at closing, by delivery of a Warranty Deed, regarding the subject Land, including all easements and restrictions of record with the exception of the encroachment(s), attached hereto. PURCHASER shall, during the Page 6 Inspection Period, secure a title insurance commitment issued by a title insurance underwriter approved and selected by PURCHASER for the subject property insuring PURCHASER'S title to the Land subject only to those exceptions set forth in the commitment. The costs and expenses relative to the issuance of a title commitment and an owner's title policy shall be borne by the PURCHASER. PURCHASER shall have five (5) days from the date of receiving said commitment to examine the title commitment. If PURCHASER objects to any exception to title as shown in the title commitment, PURCHASER shall within five (5) days of receipt of said commitment, notify SELLER in writing specifying the specific exception(s) to which it objects. Any objection(s) of which PURCHASER has so notified SELLER, and which SELLER chooses to cure, shall be cured by SELLER so as to enable the removal of said objection(s) from the title commitment within ten (10) days after PURCHASER has provided notice to SELLER. Within two (2) days after the expiration of SELLER'S time to cure any objection, SELLER shall send to PURCHASER a notice in writing (a "cure notice") stating either (1) that the objection has been cured and in such case enclosing evidence of such cure, or (ii) that SELLER is either unable to cure or has chosen not to cure such objection. If SELLER shall be unable or unwilling to cure all objections within the time period set forth in the preceding sentence, then PURCHASER may (a) terminate this Agreement by written notice to the SELLER within five (5) days at~er receipt of a cure notice specifying an uncured objection, in which event all instruments and monies held by the Escrow Agent shall be immediately returned to PURCHASER; or (b) subject to the provisions set forth below, proceed to close the transaction contemplated herein despite the uncured objection. 5.2 Survey and l,egal Description. During the Inspection Period, PURCHASER shall order: (i) a true, complete and reproducible tracing of a current survey map (current is defined to be Page 7 certified within fifteen (15) days of the date of the Agreement), prepared by a registered Land surveyor or engineer licensed in the State of Florida showing the boundaries of the Land, and the location of any easements thereon and certifying the number of acres (to the nearest one thousandth acre) of Land contained in the Land, all buildings, improvements and encroachments; and (ii) a correct legal description of the Land which, upon approval thereof by PURCHASER and SELLER (not to be unreasonably withheld), shall be the legal description used in the deed of conveyance. The survey and legal description shall be prepared and certified by a surveyor licensed and registered in the State of Florida and shall comply with the requirements of the survey map established in connection with the issuance of an owner's title insurance policy on the Land. The survey shall be certified to PURCHASER and the title insurance company issuing the title insurance. The costs relative to the survey shall be paid by the PURCHASER. In the event the survey shows any material encroachments, strips, gores, or any portion of the Land non-contiguous to any other portion of the Land or any other matter materially affecting the use or marketability of title to the Land (any such matter is herein called a "survey objection" and treated as a title defect), PURCHASER shall have a period of five (5) days after receipt of the survey by PURCHASER within which to approve or disapprove any survey objection and to give notice to SELLER of any disapproval thereof indicating in reasonable detail the nature and reasons for PURCHASER'S objection. PURCHASER agrees that it will not arbitrarily or um'easonably withhold its approval of any such survey objection and that PURCHASER will approve any such survey objection which does not affect the marketability of title or materially interfere with PURCHASER'S use of the Land. In the event PURCHASER provides a notice of disapproval of a survey objection to SELLER, the rights and obligations of the parties respecting such survey objections shall be governed by Section 5.1 hereof such that the parties shall have the same rights Page 8 and objections as though such survey objection objected to was a new exception to title which was discovered and objected to within the contemplation of Section 5.1. 6. RISK OF 1 6.1 Risk of loss or damage from fire, other casualty, or both, is assumed by SELLER until the deed described in Section 5.1 hereof is delivered by SELLER to PURCHASER. In the event any portion of the Land is destroyed or rendered unleaseable by fire or other casualty then the following shall apply: (a) If the damage, as determined by the insurance adjuster, is not more than $25,000.00: (i) PURCHASER shall complete settlement and all insurance proceeds relating to the improvements damaged by such casualty loss shall be paid to the PURCHASER, and (ii) SELLER shall pay to PURCHASER on the date of closing the full amount of any deductible under SELLER'S fire and extended coverage insurance policy applicable to said damage; (b) If the damage, as determined by the insurance adjuster, is more than Twenty- Five Thousand ($25,000.00) DOLLARS, PURCHASER shall have the option to (i) complete the settlement hereunder and collect all available insurance proceeds relating to the improvements damaged by such casualty loss, in which case SELLER shall pay to PURCHASER on the date of closing the full amount of any deductible under SELLER'S fire and extended coverage insurance policy, or (ii) terminate this Agreement and receive a refund of entire deposit and interest. SELLER warrants that it shall maintain until the date of the closing adequate "All Risk" property insurance; and: 7. TR AIq~qFF, R OF TITI,F, ,ql II~JF, CT TO, The Land shall be conveyed subject only to those exceptions as set forth in Sections 2.3, 5.1 and 5.2 and to: Page 9 (a) Water lines, sanitary sewer, drainage, gas distribution, electrical and telephone easements of record provided that they are used to service the Land and provided that the buildings and other improvements, including but not limited to the Facility, are not on the easements. (b) Unpaid assessments payable after the date of the transfer of title. 8. AD.II ISTMENTS AT CI,OSING. The following are to be apportioned pro-rata to the date of closing: All utilities, security deposits, rental payments, electric, non-delinquent taxes and assessments (Land and personal property) computed on a fiscal year basis, and water and sewer charges. SELLER shall submit evidence of payment of water, electric and sewer charges for the last month preceding the month of the closing and PURCHASER and SELLER agree that all said charges shall be pro-rated in accordance with the last billing submitted. In the event that, following the Closing, the actual amount of assessed real property tax on the Property for the current year is higher than any estimate of such tax used for purposes of the Closing, the parties shall re-prorate any amounts paid or credited based on such estimate as if paid in 2003. This shall survive the Closing. 9. CIJOSING DATE AND PI,ACE. The closing will take place at the office of legal counsel for the PURCHASER or by mail through the Escrow Agent on or before ten (10) days subsequent to the end of the Due Diligence Period. 10. DEFAIII,T. If the PURCHASER shall fail or refuse to consummate the transaction in accordance with the terms and provisions of this Agreement, all monies on deposit and interest earned on the deposit shall be immediately forfeited to SELLER as agreed upon liquidated damages and PURCHASER shall have no other responsibility or liability of any kind to SELLER by virtue of such default. In the event of a default by SELLER, PURCHASER shall be entitled to an Page 10 immediate refund of all monies tendered as earnest money or PURCHASER shall be entitled to equitable relief to enforce the terms and conditions of this Agreement either through a decree for specific performance or injunctive relief. 11. I~ROKFR. SELLER represents that it has not listed the property for sale or otherwise entered into any agreement for the payment of a real estate brokerage commission regarding the sale of the property with any broker or any other person entitled to be paid a brokerage commission in accordance with the listing agreement and Florida law. SELLER agrees to indemnify and hold the PURCHASER harmless fi.om any and all claims, demands, actions, judgments, or liability arising out of the Broker's participation in the transaction. 12. COSTS. Upon closing, PURCHASER shall be responsible for the costs and expenses related to obtainment of title insurance. Title to the property must be marketable as well as flee and clear of liens and encumbrances. The costs and expense related to the survey shall be paid by PURCHASER. All expenses incurred which shall include documentary stamps to be affixed to the Warranty Deed and the recording of the Warranty Deed shall be borne by SELLER. PURCHASER, at its own expense, may conduct and obtain an Environmental Phase I audit of the property. Should PURCHASER determine, in its sole discretion, that a Phase II environmental Inspection will be necessary, PURCHASER will be responsible for the cost. 13. CONTRACTS. Upon the execution of this Agreement, SELLER shall provide PURCHASER during the inspection period with copies of any and all existing contracts, licenses, and permits affecting the Property and in SELLER'S possession. 14. SEI,T,ER'$ WARRANT,S. SELLER hereby acknowledges and warrants to the best of its knowledge that all of the following are true and correct and all of which shall survive the closing only for a period of one (1) year fi.om the date of closing. Page 11 14.1 There are no known leases, letting or tenancies affecting any part of any of the Land. 14.2 SELLER has received no written notice on or prior to the date hereof fi.om any government, or any agency, body or subdivision thereof, that the buildings and tangible personal property (as such term is hereafter defined, including without limitation the roofs, the heating, the ventilating, air conditioning, and electrical systems, the foundations and the fixtures and equipment used in the general operation of the property) are not in good working order or otherwise in need of repair or replacement. 14.3 The insurance policies presently in effect with respect to the property are as set forth in Exhibit "C" (Insurance Policies) attached hereto and made a part hereof and such insurance or appropriate replacements thereof, shall be kept in effect by SELLER through the closing hereunder. SELLER has received no notice of outstanding requirements or recommendations with respect to the property by (1) insurance companies which issued the policies described on Exhibit "C" or (2) by any board of fire underwriters or other body exercising similar functions requiring or recommending any repairs or work to be done on the property. SELLER shall indemnify, hold harmless and defend PURCHASER against all claims, demands, losses, liabilities, costs and expenses, including attorney's fees, imposed upon or accruing against PURCHASER as a result of the representations contained in this Section. 15. PIIRCHA~qF.R'$ WARRANTIFS. PURCHASER hereby acknowledges and warrants to the best of its knowledge that all of the following are true and correct and all shall survive the closing: 15.1 PURCHASER has full power and authority to enter into this Agreement and to assume and perform all of its obligations hereunder. Page 12 15.2 The execution and delivery of this Agreement and the performance by PURCHASER of the obligations hereunder have been duly authorized by the PURCHASER as may be required, and no further action or approval is required in order to constitute this Agreement as a binding obligation of the PURCHASER. 16. ENFORCEAFIlI,ITY. If any provision in this Agreement shall be held to be excessively broad, it shall be construed, by limiting and reducing it, to be enforceable to the extent compatible with applicable law. If any provision in this Agreement shall, notwithstanding the preceding sentence, be held illegal or unenforceable, such illegality or unenforceability shall not affect any other provision of this Agreement. 17. NO MERGER. All warranties, representations, covenants, terms and conditions herein contained shall survive the delivery and recording of the deed for a period of one (1) year. 18. C©NTINGENCIFS. PURCHASER'S obligations under this Agreement are contingent upon the following: 18.1 That the PURCHASER is fully satisfied with its due diligence investigation conducted during the investigation period. 18.2 The conveyance of clear and marketable title to the property. 18.3 That the environmental audits (Phase I & II) are satisfactory and acceptable to PURCHASER. 18.4 A majority vote of the City Commission approving the transaction. 19. NO 1 JAlqll JTY. Unless this Agreement is properly executed by both parties within the specified time period, neither party shall be obligated to perform the covenants herein contained. Page 13 20. NOTICE. All written PURCHASER: With a Copy to: SELLER: notices shall be deemed effective if sent to the following places: CITY OF BOYNTON BEACH 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 JAMES A CHEROF, ESQ. Goren, Cherof, Doody and Ezrol, P.A. 3099 East Commercial Boulevard, #200 Fort Lauderdale, FL 33308 GARY W. HOLLOWAY With a Copy to: 21. EFFECTIVE DATE. Unless both SELLER and PURCHASER execute this Agreement by May __, 2003, this Agreement shall be null, void and ineffective. This Agreement shall be deemed effective as of the last date that the document is executed by either all of the parties and the Escrow Agent. 22. GOVFRNING lAW. This Agreement shall be governed by the laws of the State of Florida. 23. ENTIRE AGREEMENT. All prior understandings and agreements between SELLER and PURCHASER are merged in this Agreement. This Agreement completely expresses their full agreement. 24. NO OR Al, CHANGE. This Agreement may not be changed or amended orally. 25. S[ICCF, S~qORS. This Agreement shall apply to and bind the disthbutors, executors, administrators, successors and assigns of SELLER and PURCHASER. 26. COl INTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be and shall be taken to be an original and all collectively deemed one instrument. Page 14 27. The parties hereto agree that a facsimile copy hereof and any signatures hereon shall be considered for all purposes as originals. 28. RADON GAS Radon 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 health unit. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates indicated below: WITNESS: PURCHASER: Print Name: ,'~'/V ~,~A) ('© (. c / .,M~I~ Print Print mame~[~ THE CITY OF BOYNTON BEACH, a Florida municip ali c)rp, 7,~' °n KURT BRESSNER ~ Lk.t~,~~ CITY MANAGER By: . BOYNTON BEACH. FL DATE EXECUTED: /~.~',~/,a~9o~, ,2003 Page 15 Print Name: 'ff t-/3',4A/ C' c 6 t ! *Vi- ESCROW AGENT: GOREN, ~¢~-IE]~OODY .... J'.~)ODY DATE EXECUTED: & EZROL, P.A. ,2003 Page 16 EXHIBIT "A" LEGAL DESCRIPTION Page 17 EXHIBIT "B" PERSONAL PROPERTY Page 18 EXHIBIT "C" INSURANCE POLICY(IES) H52003\030228~Purchase Agreement boynton beach holloway.doc Page 19