R05-142
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1
2 RESOLUTION NO. R05-1'-I.f..-
3
4 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
5 FLORIDA, AUTHORIZING THE ACQUISITION OF
6 PROPERTY FOR THE HEART OF BOYNTON
7 PROJECT FROM EDDIE DURHAM AND THELMA
8 DURHAM AND AUTHORIZES THE MAYOR TO
9 EXECUTE ALL NECESSARY DOCUMENTS; AND
10 PROVIDING AN EFFECTIVE DATE.
11
12 WHEREAS, the City Commission, upon recommendation of staff, has deemed it to
13 be in the best interests of the citizens and residents of the City to accept the contract to acquire
14 property located at 234 N.W. 10th Avenue, Boynton Beach, owned by Eddie Durham and
15 Thelma Durham, for the amount of $75,000.00, as part of the development of the Heart of
16 Boynton.
17 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
18 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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Section 1.
The foregoing "Whereas" clauses are hereby ratified and confirmed as
20 being true and correct and are hereby made a specific part of this Resolution upon adoption
21 hereof.
22
Section. 2.
The City Commission of the City of Boynton Beach, Florida does
23 hereby authorize the acquisition of property from Eddie Durham and Thelma Durham in the
24 amount of $75,000.00, for the development of the Heart of Boynton Project and authorizes
25 the Mayor to execute all necessary documents.
26
Section 2.
This Resolution shall become effective immediately upon passage.
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S:\CA\RESO\ReaJ Estate\Purchase from Durham - HOB Project.doc
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PASSED AND ADOPTED this ~ day of September, 2005.
CITY OF BOYNTON BEACH, FLORIDA
Jmmiss~on
~G
Commissioner
(Corporate Seal)
S:\CA\RESO\Real Estate\Purchase from Durham· HOB Project,doc
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
This Agreement for Purchase and Sale of Real Property (hereinafter the
"Agreement "), is made and entered into as of the day of 5aq•, 2005, by and between
the City of Boynton Beach, a Florida municipal corporation (hereinafter the "Buyer") and
Eddie W. Durham and Thelma Durham, husband and wife (hereinafter the "Seller ").
In consideration of the mutual agreements set forth below, the parties agree as
follows:
1.0 Definitions. The following terms when used in this Agreement shall have the
following meanings:
1.1 Buyer. City of Boynton Beach, a Florida municipal corporation with a
mailing address of 100 E Boynton Beach Boulevard, Boynton Beach, Florida 33425.
1.2 Closing. The delivery of the General Warranty Deed to Buyer
concurrently with the delivery of the Purchase Price to Seller.
1.3 Closing Date. The date of the Closing as determined in accordance
with Paragraph 10 below.
1.4 Effective Date. The date that this Agreement is executed by the last
party to sign it.
1.5 Governmental Authority. Any federal, state, county, municipal or
other governmental department, entity, authority, commission, board, bureau, court, agency
or any instrumentality of any of them which has jurisdiction over the Property.
1.6 Governmental Requirement. Any law, enactment, statute, code,
ordinance, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate,
license, authorization, agreement, or other direction or requirement of any Governmental
Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued
applicable to the Property, or to any appurtenances, structure, use or facility, on or adjacent
to, the Property.
1.7 Property. That certain real property located at 234 NW 10 Avenue,
Boynton Beach, Florida 33435, and more particularly described on Exhibit "A" attached
hereto and made a part hereof, together with all improvements, property rights, easements,
privileges and appurtenances thereto.
1.8 Purchase Price. The price the Buyer shall pay the Seller for the
Property as more fully set forth in Paragraph 3 below.
1.9 Seller. Eddie W. Durham and Thelma Durham, his wife, with a
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mailing address of 101 Ocean Parkway, Boynton Beach, Florida 33435.
1.10 Title Commitment. A title insurance commitment issued by or written
on the Title Company, agreeing to issue the Title Policy to Buyer upon payment of the
Purchase Price and recording of the Deed and execution and/or recording of other closing
documents.
1.11 Title Company. The title insurance company, licensed and authorized
to conduct business in the State of Florida as selected by Buyer.
1.12 Title Policy. An ALTA Owner's Title Insurance Policy in the
amount of the Purchase Price, insuring Buyer's title to the Property, subject only to the
Permitted Exceptions.
2.0 Purchase Price. The total Purchase Price for the Property to be purchased by
the Buyer, from the Seller, is the sum of Seventy Five Thousand and 00 /100 ($75,000.00)
Dollars and the Buyer's obligations to close shall be contingent on the satisfaction of the
following conditions:
2.1 Approval of this Agreement by the City Commissioner of the City of
Boynton Beach, on or before September 16, 2005.
2.2 Buyer's receipt of an acceptable appraisal for the Property.
3.0 Inspections Buyer shall have 30 days to make any inspections it deems
necessary (the "Inspection Period "). During the Inspection Period, Buyer may determine that
the Property 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
Property. This Agreement is contingent upon Buyer, at its sole cost and expense, obtaining
and accepting a satisfactory Phase I Environmental Audit, at it's discretion, a Phase II
Environmental Audit for which it will be granted an additional sixty (60) days for
inspections. In the event that any inspections and any review of documents conducted by the
Buyer relative to the Property during the period prior to the Closing Date prove unsatisfactory
in any fashion, the Buyer, at its sole discretion, shall be entitled to terminate this Agreement
by providing written notice to Seller and receive an immediate refund of all deposits plus
interest paid hereto or proceed to closing as set forth herein and the Property will be
purchased from Seller in "as is" condition.
4.0 Evidence of Title.
4.1 Delivery of Title Commitment. Within twenty (20) calendar days
subsequent to the Effective Date, Buyer shall obtain a Title Commitment, at Buyer's cost, and
shall deliver a copy of the Title Commitment to Seller's attorney within ten (10) days of
receipt of the title commitment.
4.2 Marketable Title. Seller shall convey marketable title to the Property,
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subject to the Permitted Exceptions. Marketable Title shall be determined according to the
Title Standards adopted by authority of The Florida Bar and in accordance with law. Buyer
shall have ten (10) days from the date of receiving the Title Commitment to examine the
commitment. If title is found defective, Buyer shall within ten (10) days of receiving the title
commitment notify Seller in writing of the specific title defects. If Seller has not received
written notice from Buyer of a title defect, Buyer shall waive any title objections, and accept
the title in its existing condition. The Buyer's notice of the title defects shall include a
statement of how the defects should be cured. If said defects render title unmarketable (other
than encumbrances that would otherwise be paid at closing), Seller shall have fifteen (15)
days from receipt of notice within which to remove said defects, providing that Seller shall
not be obligated to spend more than $10,000.00 or initiate litigation in order to cure or correct
any noticed title defect; and if Seller is unsuccessful in removing such defects within said
time, Buyer shall have the option of either accepting the title in its existing condition without
a reduction of the Purchase Price, or of terminating this Agreement by sending written notice
of termination to Seller within ten (10) days after being notified by Seller that Seller was
unsuccessful in removing such defect(s). Upon the termination of this Agreement, neither
Buyer nor Seller shall have any further rights or obligations hereunder except as provided in
this Agreement. Seller agrees that if title is found to be unmarketable, Seller will use diligent
efforts to correct all defects in title, within the time provided therefore, and subject to the
limitations stated above.
5.0 Survey. Within thirty (30) days of the Effective Date, Buyer may obtain at its
expense a survey (the "Survey ") of the Property showing all improvements thereon prepared
by a land surveyor or engineer registered and licensed in the State of Florida. The Survey
shall show the legal description of the Property to be the same as Exhibit "A" attached hereto.
The Buyer may require any reasonable revision to the legal description so long as any such
revision does not result in Seller being required to convey any lands or rights other than those
described to be within the Property described on Exhibit "A" attached hereto. Any objections
must be delivered to Seller's attorney within the Inspection Period.
6.0 Seller's Representation. Seller hereby represents and warrants to Buyer as of
the Effective Date and as of the Closing Date as follows:
6.1 Seller's Authority. Seller has legal right and ability to sell the Property
pursuant to this Agreement. The execution and delivery of this Agreement by Seller and the
consummation by Seller of the transaction contemplated by this Agreement is within Seller's
capacity and all requisite action has been taken to make this Agreement valid and binding on
Seller in accordance with its terms.
6.2 No Levi Bar. The execution by Seller of this Agreement and the
consummation by Seller of the transaction hereby contemplated does not, and on the Closing
Date will not, result in a breach of, or default under, any indenture, agreement, lease,
instrument, pending guardianship, obligation or the agreement of limited partnership, limited
partnership certificate or related instruments affecting the Seller, to which Seller is a party
and which affects all or any portion of the Property, or to Seller's knowledge, constitutes a
violation of any Governmental Requirement.
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6.3 No Default. Seller is not in default under any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement to which Seller is a party and which
affects any portion of the Property.
6.4 Title. Seller is the owner of marketable title to the Property, free and
clear of all liens, encumbrances and restrictions of any kind, except the Permitted Exceptions
and encumbrances of records which will be paid at Closing.
6.5 Litigation. gation. There are no actions, suits, proceedings or investigations
pending or, to the knowledge of Seller, threatened against Seller or the Property affecting any
portion of the Property.
6.6 Parties in Possession. There are no parties other than Seller in
possession of any portion of the Property as a lessee.
6.7 Seller shall not amend or modify in any way any lease presently in
effect relative to the Property. Seller shall not enter into any new leases or encumber the
Property in any way without first obtaining the written consent of Buyer.
6.8 Buyer's Remedies for Seller's Misrepresentations. In the event that
Buyer becomes aware prior to Closing that any of Seller's warranties or representations set
forth in this Agreement are not true on the Effective Date or any time thereafter but prior to
Closing, and in the event Seller is unable to render any such representation or warranty true
and correct as of the Closing Date, Buyer may either: (a) terminate this Agreement by written
notice thereof to Seller, in which event the parties will be relieved of all further obligations
hereunder; or (b) elect to close under this Agreement notwithstanding the failure of such
representation and warranty, in which event the Closing shall be deemed a waiver by Buyer
of the failure of such representation and warranty.
7.0 Bayer's Representations. The Buyer hereby represents and warrants to the
Seller as of the Effective Date and as of the Closing Date that Buyer has full and complete
authority subject to compliance with Chapter 166, Florida Statutes, the City of Boynton
Beach Charter and Code of Ordinances, to purchase the Property and to comply with the
terms of this Agreement, and the execution and delivery of this Agreement by Buyer and the
consummation by Buyer of the transaction hereby contemplated are within Buyer's capacity
and all requisite action has been taken to make this Agreement valid and binding on Buyer in
accordance with its terms.
8.0 Conditions Precedent to Closing. Each of the following events or
occurrences (the "Conditions Precedent ") shall be a Condition Precedent to Buyer's obligation
to close this transaction. If the Conditions Precedent have not been satisfied on or before the
Closing Date, Seller shall have ten (10) days within which to satisfy the unsatisfactory
condition and should Seller not have done so within said ten (10) day period, Buyer shall
have the right to either (a) terminate this Agreement by giving notice thereof to Seller,
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whereupon Buyer and Seller shall be relieved of all further obligations under this Agreement;
or (b) waive the condition and close.
8.1 Representations. The material representations and warranties made by
Seller in this Agreement shall be true and correct on the Closing Date subject to the ten (10)
day extension provided in Paragraph 9 above.
8.2 Seller's Obligations. Seller shall have performed all covenants,
agreements, and obligations and complied with all conditions required by this Agreement to
be performed or complied with by Seller prior to the Closing Date.
8.3 Seller shall make available to Buyer no later than twenty (20) days
following the Effective Date of this Agreement, copies of all documents not previously
delivered to Buyer which Seller may have in its possession pertaining to the Property
including, but not limited to, building plans, architectural plans, building permits, impact fee
assessments, notices of special assessments, notices of sewer fees and water fees, unrecorded
restrictive covenants, variance applications /approvals, special exception
application/approvals, engineering plans, unrecorded developer agreements, environmental
reports, surveys and prior title insurance policies, title commitments, and title exceptions
pertaining thereto.
8.4 Seller has no actual knowledge nor has it received any written notice
that there has been any discharge of hazardous material at the Property. As used herein, the
term "Hazardous Material" shall mean any substance, water or 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) ").
Buyer must rely on its Environmental reports and assessments as Seller is not aware of
Property's environmental condition.
9.0 Closing. The Closing shall occur at a mutually agreed time on or before the
expiration of forty-five (45) days from the Effective Date and shall take place at the office of
legal counsel representing the Buyer, which such office must be in Broward County, Florida.
10.0 Seller's Closing Doeuments. At closing, Seller shall deliver the following
documents ( "Seller's Closing Documents ") to Buyer:
10.1 General Warranty Deed. The Statutory General Warranty Deed shall
be duly executed and acknowledged by Seller so as to convey to Buyer good and marketable
fee simple title to the Property free and clear of all liens, encumbrances and other conditions
of title, other than the Permitted Exceptions and exceptions not duly objected to by Buyer.
10.2 Mechanic's Tien Affidavit. A mechanic's lien affidavit in the
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customary form, attesting that (a) no individual, entity or Governmental Authority has any
claim against the Property under the applicable mechanic's lien law, (b) no individual, entity
or Governmental Authority is either in possession of the Property or has a possessory interest
or claim in the Property, and (c) no improvements to the Property have been made for which
payment has not been made.
10.3 Gap Affidavit. An affidavit in form and content reasonably
satisfactory to the Title Company to facilitate the insuring of the "gap ", i.e., the deleting as an
exception to the Title Commitment any matters appearing between the effective date of the
Title Commitment and the effective date of the Title Policy.
10.4 FIRPTA. A FIRPTA Non - Foreign Entity Transferor Certificate or
Exemption Certificate or document evidencing withholdings, in accordance with Section
1445 of the Internal Revenue Code.
10.5 DR as required for recording.
11.0 Buyer's Closing Documents. At closing, Buyer shall deliver to Seller a
certified copy of the Resolutions, Minutes or Agenda Actions of the pertinent meeting of the
City Commissioner showing that Buyer has been authorized to enter into and execute this
Agreement and consummate the transaction herein contemplated.
12.0 Closing Procedure. The Closing shall proceed in the following manner:
12.1 Transfer of Funds. Buyer shall pay the balance of the Purchase
Price to the Seller by wire transfer to the account of Seller.
12.2 Delivery of Documents. Seller shall deliver Seller's Closing
Documents to the Buyer consisting of a statutory General Warranty Deed, Bill of Sale, No-
Lien Affidavit, FIRPTA Affidavit and any documents required to insure Seller conveys
marketable title.
13.0 Closing Costs, Taxes, Prorations and Impact Fees.
13.1 Ad Valorem Taxes. Seller shall comply with Section 196.295, Florida
Statutes, with respect to the payment of prorated ad valorem taxes for the year of closing into
escrow with the Palm Beach County Revenue Collector.
13.2 Seller's Closing Costs. Seller shall pay for the following items prior to
or at the time of Closing:
Cost of providing marketable title as provided herein; documentary
stamps on the Deed.
13.3 Buyer's Closing Costs. Buyer shall pay for the following items prior
to or at the time of Closing:
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Recording fees of Deed; title insurance premium; survey costs,
appraisal costs, Phase I or Phase II Environmental Assessment Report
costs and related expenses.
14.0 Possession. Buyer shall be granted full possession of the Property at
Closing.
15.0 Condemnation. In the event of the institution of any proceedings by any
Governmental Authority which shall relate to the proposed taking of any portion of the
Property by eminent domain prior to Closing, or in the event of the taking of any portion of
the Property by eminent domain prior to Closing, Seller shall promptly notify Buyer and
Buyer shall thereafter within fifteen (15) days after receipt by Buyer of the notice from Seller
either (1) terminate this Agreement, whereupon Seller and Buyer shall be released of all
further responsibility and obligations hereunder; or (2) proceed to close this transaction.
Seller hereby agrees to furnish Buyer with written notice of a proposed condemnation within
five (5) business days after Seller's receipt of notification. Should Buyer terminate this
Agreement, the parties hereto shall be released from their respective obligations and liabilities
hereunder. Should Buyer elect not to terminate, the parties hereto shall proceed to Closing
and Seller shall assign all of its right, title and interest in all awards in connection with such
taking to Buyer.
16.0 Notice. Notices shall be in writing delivered by hand, or by certified mail,
return receipt requested, or overnight delivery by nationally recognized service, to the
addressee at the address set forth herein, or by facsimile transfer, and shall be deemed to have
been delivered on the date of receipt of such notice, if hand- delivered, or, if mailed, on the
date the receipt for which the certified mail is signed or refused, by the addressee or its
authorized agent or employee, or if by facsimile transfer, by confirmation of transmission.
Either party may change the address for notice to that party by delivering written notice of
such change in the manner provided above, such change to be effective not sooner than ten
(10) days after the date of notice of change. If either party relies upon a hand delivery as
described herein, then the party using this medium shall maintain an appropriate receipt of
delivery, in the normal course of business.
BUYER: City of Boynton Beach
100 E. Boynton Beach Boulevard
Boynton Beach, Florida 33425
Attn:
With a copy to: Goren, Cherof, Doody and Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Attention: Donald J. Doody, Esq.
Telephone: (954) 771 -4500
Fax: (954) 771 -4923
Email: ddoodyycityatty_com
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SELLER: Eddie W. Durham and Thelma Durham
101 Ocean Parkway
Boynton Beach, Florida 33435
17.0 Default. If the Buyer shall fail or refuse to consummate the transaction in
accordance with the terms and provisions of this Agreement, the deposit and interest shall be
forfeited to Seller as agreed upon liquidated damages. In the event of such default by Buyer,
Seller's sole and entire remedy shall be restricted to retention of the deposit plus all accrued
interest, if any, and Buyer shall have no other responsibility or liability of any kind to Seller
by virtue of such default. In addition to the other remedies which Buyer may have
specifically set forth in this Agreement in the event of Seller's default, Buyer 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 and damages which shall be the lessor of
actual damages or $25,000.00.
18.0 Miscellaneous.
18.1 Counterparts. This Agreement may be executed in any number of
counterparts, any one and all of which shall constitute the contract of the parties. The
paragraph headings herein contained are for the purposes of identification only and shall not
be considered in construing this Agreement.
18.2 Amendment. No modification or amendment of this Agreement shall
be of any force or effect unless in writing executed by both Seller and Buyer.
18.3 Attorneys' Fees. If any party obtains a judgment against any other
party by reason of breach of this Agreement, attorneys' fees and costs shall be included in
such judgment if and as awarded by the Court.
18.4 Governing Law. This Agreement shall be interpreted in accordance
with the laws of the State of Florida, both substantive and remedial.
18.5 Entire Agreement. This Agreement set forth the entire agreement
between Seller and Buyer relating to the Property and all subject matter herein and supersedes
all prior and contemporaneous negotiations, understandings and agreements, written or oral,
between the parties.
18.6 Computation of Dates. If any date computed in the manner herein set
forth falls on a legal holiday or non - business day or non - banking day, then such date shall be
extended to the first business day following said legal holiday or non - business day or non-
banking day. All time references to "days" shall mean and refer to calendar days.
18.7 Time is of the Essence. Time is of the essence and failure of the
Buyer to exercise the option granted hereby on or before the Option Expiration Date shall
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cause this Agreement to terminate and be of no further force or effect. The provisions herein
contained shall be strictly construed for the reason that both parties intend that all time
periods provided for in this Agreement shall be strictly adhered to.
18.8 No Recording. This Agreement or any notice or memorandum hereof
may not be recorded in the public records of any county in the State of Florida.
18.9 No Rrokers. Seller and Buyer each represent to the other that it has
not dealt with any broker, salesperson or agent in connection with the execution and delivery
of this Agreement Seller agrees and acknowledges that it shall indemnify and hold Buyer
harmless with respect to any and all claims, demands, awards or judgments arising out of the
Seller's failure to pay the aforementioned Brokers the commission due as a result of the sale
of the Property. This provision shall survive the closing of the contemplated transaction.
18.10 Acceptance of Teed. The acceptance of the Deed by Buyer shall be
deemed full performance and discharge of every agreement and obligation on the part of
Seller to be performed pursuant to this Agreement, except those which are specifically stated
to survive delivery of the Deeds and closing.
18.11 Tnterpretation. Should any term or provision of this Agreement be
subject to judicial interpretation, it is agreed by Seller and Buyer that the court interpreting or
construing the same shall not apply a presumption that the term or provision shall be more
strictly construed against the party who itself or through its agents and attorneys of each party
have participated in the preparation of the terms and provisions of this Agreement and that all
terms and provisions have been negotiated.
18.12 Captions, Headings, Etc. Captions, headings, section and subsection
numbers in this Agreement are for convenience and reference only, and shall have no effect
upon the meaning of any of the terms or provision herein.
18.13 Waiver. Failure of either party to insist upon compliance with any
term or provision hereof shall not constitute a waiver thereof, and no waiver of any term or
provision of this Agreement shall be effective unless it is in writing and signed by the party
against whom it is asserted. Any waiver of any term or provision of this Agreement shall
only be applicable to the specific term or provision and instance to which it is related, and
shall not be deemed to be a continuing or future waiver as to such term or provision or as to
any other term or provision.
18.14 No Third Party Beneficiary . The terms and provisions of this
Agreement are for the exclusive benefit of Seller and Buyer, and not for the benefit of any
third party, and this Agreement shall not be deemed to have conferred any rights, express or
implied, upon any third party.
18.15 Radon Gag 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
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EXHIBIT "A"
LEGAL DESCRIPTION
The West 12 feet of Lot 14 and all of Lot 15 of HILLTOP VILLAGE, according to the Plat
thereof recorded in Plat Book 24, Page 70 of the Public Records of Palm Beach County,
Florida.
H \2005 \050076 \05 -07 -15 Contract of Purchase and Sale.doc
11
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 date
indicated below.
SELLER:
WITNESSES:
,E DD E W u R N ft-1 -ir.‘ -�
Print Name Eddie W. Durham
l > ,wA .1.)t1t HAM
Print Name Thelma Durham
Date Executed: 9 1 Q
J
BUYER:
CITY OF BOYNTON BEACH,
a Flonda municipal corporation
ATTEST 4 2411 1 2 ^
By: KURT BRESSNER
�� Date Executed: B MANAGER
_� - BOYNTON BEACH, FL
, a
ITY CLERK ,/
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