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R95-143RESOLUTION NO. R95-/~ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY BETWEEN THE CITY OF BOYNTON BEACH AND MARINA MARKETPLACE, INC., AND OCEAN BREEZE FESTIVAL PARK, INC., REGARDING THE REAL PROPERTY DESCRIBED HEREIN AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City is desirous of entering into an Agreement with Marina Marketplace, Inc., and Ocean Breeze Festival Park, Inc., regarding the development of the property more particularly described herein as Exhibit "A"; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida does hereby authorize and direct the Mayor and City Clerk to enter into an Agreement between the City of Boynton Beach, Marine Marketplace, Inc,. and Ocean Breeze Festival Park, Inc., regarding the property more particularly described herein as Exhibit "A". Section 2. That this Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this --~ day of September, 1995. CITY OF BOYNTON BEACH, FLORIDA ATTEST: Ci~ Clerk Mayor Vice Mayor Co~ission~r (Corporate Seal) Authsig.doc 9/5/95 Ma~inaProject AGREEMENT FOR PURCHASE AND SAT.~. OF REAL PROPERTY THIS AGREEMENT is made and entered into on September , 1995, by and between CITY OF BOYNTON BEACH, FLORIDA, a Municipal corporation, (hereinafter referred to as "PURCHASER"), MARINA MARKETPLACE, INC. a Florida corporation, (hereinafter referred to as "SELLER"), OCEAN BREEZE FESTIVAL PARK, INC. (hereinafter referred to ;als "MORTGAGEE"). WHE-D~EAS, the PURCHASER'~ is desirous of entering into an Agreement for the purchase of the subject real property, and WHEREAS, the PURCHASER has been advised that the real property is subject to- a foreclosure action presently pending in the Fifteenth Judicial Circuit, in 'and for Palm Beach County, Florida, and WHEREAS, the PURCHASER has been advised that the MORTGAGEE and the SELLER do jointly and collectively enter into this Agreement for the purpose of insuring that any and all interests held or acquired through the foreclosure action are conveyed to the PURCHASER under the terms and provisions of this Agreement. WITNESSETH In consideration of the mutual agreements and upon and subject to the terms and conditions herein contained, the partie~ hereto agree as follows: 1. F~. The following terms when used in this Agreement for Purchase and Sale shall have the following meanings: 1.1 Land. That certain real property, together with all submerged property, buildings and other improvements thereon and OJ~ln~ Page 1 of 31 appurtenances thereunto belonging, situate, lying and being in Palm Beach County, Florida, more particularly described in the Exhibit attached hereto (hereinafter referred to as the "Marina Property"), 1.2 Closinq. The delivery of a General 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 which as agreed upon by PURCHASER and SE?.~.~- shall be January 15, 199~~ 1.4 ~. A General Warranty Deed, which shall convey the real property from SELLER to PURCHASER relative to the marina property, together with all buildings and improvements thereon. 1.5 ~arne~t Money. The sum of ONE HUNDRED AND 00/00 ($100.00) DOLLARS has been delivered from PURCHASER to SELLER . 1.6 Prorations. A written statement setting forth the amounts to be credited or debited to PURCHASER and SELLER with respect to each item to be prorated pursuant to Paragraph 8 showing the net amount owing from PURCHASER to SELLER or from SELLER to PURCHASER, as the case may be. 1.7 SF~'.S A~dress. MARINA MARKETP~CE, INC. a Florida corporation, 1120 Laskin Road, Virginia Beach, Virginia 23451, with copy to Jay F. Wilks, Esq., Wilks & Atper, PC, 700 town Point Center, 150 Boush Street, Norfolk, VA, 23510. 1.8 PURCHASER'S Address. CITY OF BOYNTON BEACH, 100 East Boynton Beach Blvd., P. O. Box 310, Boynton Beach, FL 33425, with copy to James A. Cherof, Esquire, Josias & Goren, P.A., 3099 9/1195 :ms Page 2 of 31 East Commercial ~oulevard, ~ite 200, Fort Lauderdale, Florida 33308. 1.9 MO~TGAGEE'S Add~ess. OCEAN BP..~:EZE FESTIVAL PARK, INC., 1120 Laskin Road, Virginia Beach, Virginia 254§1. 1.10 Other Definitions. The terms defined in any part of this Agreement shall have the defined meaning wherever capitalized herein. Wherever appropriate in thisAgreement, the singular $hall be deeme~ to refer to the plural and the ~lural to the singular, and pronouns of each gender shaft be deemed to comprehend either or both of the other genders. A~ u~ed ~n th~ Agreement, the ~erm~ "herein", "hereof" and the like refer to this Agreement in entirety and not to any ~pecific section or subsection. 2. PURCHASE AND SALE. Subject =o the provi~ion~ of thisAgreement, ~/%e SELLER hereby agree~ to sell to PURCHASE~, and PURCHASER hereby agrees to purchase from SELLER, the real property previously identified on Exhibit "A" for the total purchase price of TWO MILLION AND NO/100 ($2,000,000.00) DOLlaRS and u~on and subject to the terms and conditions hereinafter set forth. 2.1 ~arn~t Money. Conourre~tly with the. execution of this Agreement by PURCHASER and SELLER, PURCHASER shall deposit withSE~R, monies ~ the amount of ONE HUNDRED ($100.00) and ~o/100 Dollars. Th~s ¢on.~ract is contingent uponthe SEL~'S ability to deliver good and ma=ketable title for ~he real property in accordance herewith. Should the SELLER not be able to perform ~/'22~95~:tcc 9/1/95:es Page 3 of 31 (a) The buildings, property and appurtenances thereto. hereunder or fail to deliver gOOd and marketable title for the Land, the PURCHASER shall De entitled to an immediate refund of the sum of ONE HUNDRED and 00/00 ($100.00) DOLLARS. 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. 2.2 Balance of Purchas9 price. PURCHASER shall pay the balance of the purchase price to SELLER at closing by certified check or wire transfer to SELLER'S bank account. 2.3 The Purchase includes: Marina Property, together with all all other improvements thereon and (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 submerged property and land lying in the bed of any public or private street or highway, opened or proposed, to the center line thereof. The sale also includes any right 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 ~amage 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/marina propertx as OJO/ms Page 4 of 31 more particularly identified on £xhibit "B" as provided by SELLER to PURCHASER within five (5) days after the execution of this Agreement by both parties. SEL?.RR represents that such fixtures and articles are paid for and are owned by SELLER free and clear of any lien or encumbrance; and (e) All licenses, permits, contracts and leases, if applicable to the property, including off site land leases or other agreements related to parking, copies of which the SELLER shall provide to PURCHASER within five (5) days after'execution of this Agreement by both parties. 3. INSPECTIONS. 3.1. PURCHASER shall have a one hundred twenty calendar (120) day period of time commencing as of the date of this Agreement to determine that the improved Land is satisfactory for its intended use (inspection period), including, without limitation, valuation appraisals, environmental studies, engineering studies, and the examination of any financial records pertaining to the operation of the Property. Additionally, that the subject property has adequate services available and that all Federal, State, County and local laws, r~!es and regulation.s have been and are currently being complied with relative to the real property. 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 D JO/ms 8/22/95\~: 9.,'1.,9~ Page 5 of 31 property lines. FurthermoP~, P~C~SER shall determine that the existing zoning classification on all the property subject to this Agreement will permit PURCHASER to utilize the Land for its intended use. This agreement is contingent upon PURCFu%SER obtainingand accepting asatisfactory Phase I Environmental Audit. At all times during the investigation period, PURCHASER and its agents shall be provided with reasonable access during normal business hours to the Land, In addition, S~LLER shalX provide to PURCHASER no later than ten (10) days following the effective date of this Agreement, copies of all documents which SELLER may have in its possession pertaining to the Marina Property incIuding, but not limited to, ail available building plans, architectural plans, engineer's structural inspections, building permits, impact assessments, notices of special assessments, notice of sewer fees and water fees, restrictive covenants, variances, special exceptions engineering plans, developer agreements, foreclosure documentation and any other such documents SELLER has in its possession or control. 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 and any review of documents conducted by the PURCHASER relative to the Marina Property, including financial records, during this period prove unsatisfactory in any fashion, the PURCHASER, at its sole discretion, shall be entitled to terminate this Agreement by providing written notice to SELLER prior to the expiration of the 120-day due diligence period and receive an immediate refund of the Page 6 of 31 deposit paid hereto or proceed to CloSing as set forth herein. If, during the Inspection Period, PURCHASER shall determine that the environmental problem~ presently existing on the property have not been properly identified and/or that the remedial action required to remedy the environmental problem has not been identified, PURCHASER shall be afforded the opportunity to extend the Inspection Period and the closing date for an additional sixty (60) days. 3.2 .INDEMNIFICATION. PURCHASER shall defend, indemnify, save and hold SELLER harmless £rom and against any and all loss, damage, claim, suit, liability, action, cost or expense (including reasonable attorneys' fees) arising from or any way connected with the exercise of such right of entry by the Purchaser, or its engineers, architects, or other agents or consultants. The grant of such a license to enter the Property is made subject to the rights of each of the tenants on the property to the undisturbed and peaceable possession of their leased space. PURCHASER shall give the SELLER reasonable notice of each such inspection, and in performing such inspections shall not interfere in any material way with the operation of the property and shall not in any way damage the property. 4. SELLER'S REPRESENTATIONS. To induce PURCHASER to enter into this Agreement, SELLER makes the following representations, to the Dest of its ~nowledge, and 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 Page 7 of 31 '~in~ormation to the contrary, ih ~hat event, Purchaser shall be provided timely notice as to the change to the following representations: 4.1 At all times prior to closing, SELLER shall keep the Marina Property (whether before or after the date of closing) free and clear of any mechanic's or materialmen's liens for work or materials furnished to or contracted for, by or on behalf of SELLER prior to the closing, and SELLER shall indemnify, defend and hold PURCHASER harmless from and against all expense and liability in connection herewith (including, without limitation, court costs and reasonable attorney's fees). 4.2 All laws, ordinances, rule~, 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 pa~t thereof in effect on the date hereof, have to SELleR'S knowledge, been complied with by SELLRR; that SELL_RR has received no notice or has no actual knowledge that any such government, agency, bo~y 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. D JO/ms 95031~m~rir~ Page 8 of 31 4.3 SELLER has no actual knowledge of pending or contemplated condemnation proceedings affecting the Land or any part thereof. 4.4 SELLER represents that all pending tax reduction proceedings, if any, and brief descriptions thereof are listed on Exhibit "C" annexed hereto and made a part hereof. 4.5 SELLER has no actual knowledge nor has SELLRR received any notice of any litigation, claim, action or proceeding, actual or threatened, against SELLER or the Marina Property 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 Marina Property. 4.6 SELLER represents that it has no actual knowledge nor has it received any notice that the Marina Property has been, is presently or i~ contemplated to be utilized as a reservoir of hazardous material. As used herein, the term "Hazardous Material" shall mean any s~bstance, 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 Page 9 of 31 ~be in writing and shall inClUd~ an express assumption of the assignee of all obligation of PURCHASER under this Agreement. lZ. BROKER. The parties hereto represent and warrant to each other that there has been no Broker, Sales Representative or Agent, involved in this transaction who would be entitled to a commission or other compensation, and each agrees to indemnify and hold the other harmless of and from any and all claims, demands, actions or suits (including all court costs and attorney fees)arising out of or relating to any alleged agreement by either party hereto-to pay a commission or other compensation to any broker, sales representative or agent in connection with this transaction. SELLER agrees to and does hereby indemnify and hold PURCHASER harmless of and from any and all claims, damages, actions or suits (including ail court costs and attorney's fees) arising out of or relating to any agreement by SELLER to pay a commission or other compensation to any broker, sales representative or agent in connection with this transaction. Conversely, PURCHASER agrees to and does hereby indemnify and hold SELLER harmless of and from any and all claims, damages, actions or suits (including all court costs and attorney's feeS) arising out of or relating to any agreement Dy PURCHASERto pay a commission or other compensation to any broker, sales representative or agent in connection with this transaction. 13. expenses related SELLER shall be responsible for the costs and to all documentary stamp tax and recording expenses incurred relating to the recording of the General Warranty OJO/ms 9~O]lZ~t~r;na Page 19 of 31 Deed. PURCHASER shall be responsible for all costs relative to the preparation of the survey and the costs and expenses relating to the issuance of an owner's title insurance policy. SELLER shall be solely responsible for the payment of any prepayment penalty associated with the existing mortgage, if any, on the property. Additionally, SELLER and/or MORTGAGEE. shall be responsible for all costs and expenses incurred in testing for identification purposes and eliminating for remedial purposes all issues associated with the contamination of the real property. 14. LEASES AND SECURITY DEPOSITS.. Upon the execution of this Agreement, SELLER shall allow PURCHASER acce~ to- all written leases. SELLER shall furnish PURCHASER with valid and complete accounts receivable schedules and occupancy status reports for the most recent month of operation which shall be attached as Composite Exhibit "D", which shaII be deIivered to PURCHASER within five days after the execution of this Agreement by both parties. The accounts receivable roll and occupancy status reports shall contain names, addresses, terms, unit number, unit size and amount of rent each tenant currently pays SELLER. At the closing, SELLER shall turn over to PURCHASER all keys, security deposits and all original lease documents. Immediately after closing, PURCHASER shall notify each and. every tenant in writing that the new owner of the Land is PURCHASER and that the tenant must. attorn to PURCHASER and forthwith deliver all rent to PURCHASER. PURCHASER and $~LLER agree and acknowledge that PURCHASER wit1 make a good faith effort to recover all past due rentals subsequent to closing. To the DJDZm~ Page 20 of 31 'extent that PURCHASER is successful in collecting any past due rentals in the thirty (30) day period subsequent to closing, all past due rental payments collected shall be paid to SELLER at the end of the thirty (30) day period. All past due rental payments collected subsequent to this thirty (30) day period ~hall be retained by PURCHASP~R. PURCHASER and SELLER agree that as of the date of closing an accounting will be made as to-the amount of prepaid rents held by SELLER. Upon expiration of the thirty (30) day period referred to above, SELLER shall tender to PURCHASER all prepaid rents held. 15. CONTRACTS. Upon the execution of thi; Agreement, SELLER shall provide PURCHASER with a copy of any and' all existing contracts, licenses and permits affecting the Property and in SELLER'S possession. At closing, SELLER ;haII deliver to PURCHASER, an Assignment of any unexpired warranties and guarantees in effect as of the Settlement Date with respect to the Marina Property and/or any mechanical equipment comprising a part thereof. At closing, SELLER shall deliver to PURCHASER, an appropriate instrument of assignment, assigning to PURCHASER, all of SELLER'S right, title and interest in and to any and all permits heretofore issued to SELLER for the development of the Marina property. 16. SESLER ' S WARRANTIES. SELLER hereby acknowledges and warrants to the best of its knowledge that all of the following are ~O$12\mrin~ Page 21 of 3! 'true and correct and all of WhiCh ~hall survive the closing for a period of nine (9) months from the date of closing. (a) There are no leases, letting or tenancies affecting any part of any of the Land except tenant lea~es and billboard leases and there are no written or oral promises, understandings, agreements or commitments between SELLER (or any predecessor of SELLER) and any tenant or other person affecting the Marina Property. (b) Except as may be stated in the lease agreement(s), and as represented on the account receivable schedules, no tenant has prepaid rent for more than the current rental period, has received or is entitled to receive a rent concession in connection with its tenancy, or is entitled to any alterations, installations, decorations or othe~ similar work (not yet performed) for consideration (not yet given) in connection with its tenancy. All alterations and installations, decorations and other work required to be performed by SELLER (or SELLER'S predecessors in title) under any lease existing on the date hereof or other agreement affecting theLandha~been (or will be prior to closing) completed and paid for in full. Prior to closing, SELLER shall not give any rent concessions or otherwise in the normal course of business agree to do any work for, or give any considerations other than possession to, any tenant except with PURCHASER'S prior written consent. (c) SELLER has received no written notice on or prior to the date hereof from any government, or any agency, body O~lr~ ;B/22/9S \o'e.: tee 9f ~A :m Page 22 of 31 .or subdivision thereof, that ~h~ 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. (d) SELLER is not in default in any of SELLER'S obligations to any supplier of any materials or services obtained or to be used in connection with the property". (e) The insurance policies presently in effect with respect to the property are as set forth in Exhibit "F" to be provided by SELLER within five (5) days after execution of this Agreement by both parties 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 polieie~ described on Exhibit "F" or (2) by any board of fire underwriters or other body exercising ~imilar functions requiring or recommending any repairs or work to be done on. the property. (f) If PURCHASER determines that any of the representations or warranties containe~ herein are not true and correct in a material way, it shall promptly notify SEbLER in writing specifying that which is untrue or inaccurate-, upon receipt of the written notice, SELLER shall use its best efforts to DJi)/m $/22/95%flw,: tcc 911/95:ms Page 23 of 31 'cure or correct such inaccuracy within a thirty (30) day calendar period and, if unsuccessful, then this Agreement shall, at PURCHASER'S option and in PURCHASER'S sole and absolute discretion, be deemed to be terminated and neither party shall have any further obligations or liability to the other arising from this Agreement. 17. RADON GAS DISCLOSURE. Seller hereby notifies PURCHASER, in accordance with applicable law, and by execution of this Agreement, PURCHASER acknowledges receipt of the following notification: "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. Additionally information regarding radon and radon testing maybe obtained from your county public health 18. NON-FOREIGN PERSON AFFIDAVIT. SELLER shall deliver to the PURCHASER at or prior to closing, an affidavit ("Affidavit") which states the SELLER'S employer identification number and office address, and that SELLER is not a "foreign person" within the meaning of the United States tax laws and to which reference is made in the Internal Revenue Code Section-1445 (b)(2), and which states the state within the United States under which the SELLER was organized and exists. 19._ ENFORCEABILITY. If any provision in this Agreement shall be held to. be excessively broad, it shall be ¢onstrue~, by limiting and reducing it, to be enforceable to the extent compatible with applicable law. If any provision in this Agreement 'shall, DJO~ Page 24 of 31 · notwithstanding the preceding sentence, be held illegal or unenforceable, such illegality or unenforceability shall not affect any other provision of this agreement. 20. NO MF~RGER. All warranties, representations, covenants, te~ and conditions herein contained shall survive the delivery and recording of the deed for a period of nine months. 21. CONTINGENCIES. PURCHASER'S obligations under Agreement is contingent upon the following: ia) this That the PURCHASER is fully satisfied with its due diligence investigation conducted during the investigation period. (b) That the environmental audit(s) conducted by PURCHASER is satisfactory and acceptable to PURCMASER. (c] That the title is clear and marketable. (d) That the PURCHASER'S appraisals disclose a value acceptable to the City commission. (e) That the PURCHASER can prepare and publish an RFP relative tot he development of the property and the CITY'S acceptance and award of an agreement to a successful RFP proposal. Furthermore, the PURCHASER shall have the right to reject any and all proposals submitted in response to the RFP in its sole discretion. 22. Notwithstanding any other provision of this agreement, the CITY, in its sole discretion, can declare this Agreement null Page 25 of 31 " ~a~d void provided it makes such declaration no later than one hundred twenty (120) days from the date of execution of this Agreement by both parties. 23. NO LIABILITY. Unless this Agreement is properly executed Dy bo~ parties within the specified time period, neither party shall be obligated to perform the covenants herein contained. 24. ~. Ail written notices shall be deemed effective if ~ent to the following places: PURCHASER: CITY OF BOYNTON BEACH a municipal corporation 100 Boynton Beach Blvd. Boynton Beach, Florida ATTN: Carrie Parker, City Manager With a Copy to: JAMES A. CHEROF, ESQUIRE Joslas & Goren, P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33308 SELLER: HARINA~PLACE, INC. a Florida corporation 1120 Laskin Road Virginia Beach, VA 23451 Attn: MS. Andrea M. Kilmer With a Copy to: Jay F. Wilks, Esq. Wilks & Alper, P.C. 700 Town Point Center 150 Boush Street Norfolk, VA 23510 MORTGAGEE: OCEAN BREEZE FESTIVAL PARK, INC, a Virginia corporation, 25. EFFECTIVE DATE. Unless both SELLER and PURCHASER execute thi~ Agreement by September 6, 1995, this Agreement shall be null, Page 26 of 31 v~id and ineffective. This Agreement shall be deemed effective as of the last date that the document is executed by either PURCHASF~R or SELLER. 26. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Florida. 27. ENTIRE AGREEMENT. Ail prior understandings and agreements between SELLER and PURCHASER are merged in this Agreement. This Agreement completely expresses their rut1 agreement. 28. NO ORAL CHANGE. This Agreement may not be changed or amended orally. 29. SUCCESSORS. This Agreement shall apply to and bind the distributes, executors, a4ministrators, successors and assigns of SELLER and PURCHASER. 30. TIME. TIME IS OF THE ESSENCE OF THIS AGR~EMENTand in the performance of all conditions, covenants or requirements and obligations by the parties hereto. Waiver of performance of satisfaction or timely performance or satisfaction of any condition, covenants, requirement or obligation by one party shall not be deemed to be a waiver of the performance of satisfaction of any other condition, covenant, requirement or obligation unless specifically consent to in writing. Whenever dates specified herein shall fall on a weekend or legal holiday, the date shall be extended to the next succeeding business day which shall not be a weekend or legal holiday. D~/~ ~l~.rin. 8,,"F~ 95 ~s; tcc Page 27 of 31 31. LITIgATIQN AND ATTORNEYS' FEES. In the event it shall be necessary for either party of this Agreement to bring suit or enforce any provision hereof or for damages on account of any breach of this Agreement, the prevailing party shall be entitled to recover from the other in addition to any damages or other relief granted as a result of such litigation, all costs and expenses of such litigation and reasonable attorney's fees as fixed by the court. 32. This constitute the Agreement, when executed by all parties, will Agreement between the. PURCHASER, S~LL~R and MORTGAGEE, and represents a good faith effort toward the sale and purchase of the real property contemplated within the terms- and provisions of this Agreement. Upon execution of thi~ Agreement by the SELLRR and MORTGAGEE, SELLER and ~ORTGAGEE agree to take the property off the market and' not offer it for sale or lease to any third party until such time that the PURCHASER either terminates this Agreement or closes under the terms of this Agreement. Furthermore. SELLER and MORTGAGEE agree and warrant that they shall not, individually or collectivel¥~ solicit or accept any offers nor engage in any discussion(s) concerning the sale of the property other than the transaction contemplated by this Agreement until such time as the PURCHASER determines not to conclude the 9!1195 =ms Page 28 of 31 'transaction in accordance with ~e time frame set forth in this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates indicated below: WITNESS: PURCHASER: CITY OF BOYNTON BEACH a municipal corporation Mayor City Manager Attest: City Clerk SELLER: MARINA MARKETPLACE, INC. a Florida corporation President MORTGAGEE: OCEAN BREEZE FESTIVAL PARK, Inc., a corporation STATE OF FIX)RI[IA ) ) COUNTY OF BROWARD ) Pre~ident Page 29 of 31 L THE FOREGOING INSTRUMENT was acknowledged before me this day of , 1995, by · and as Mayor, City Manager and City Clerk, respectively, of the CITY OF BOYNTON BKACH, a municipal corporation. NOTARY PUBLIC Type or Print Name Commission No. My Commission Expires: Personally Known OR Produced Identification Type of Identification Produced STATE OF VIRGINIA COUNTY o~ THE FOREGOING INSTRUMENT was acknowledged before me this day of , 1995, by President of MARINA MARKETPLACE, INC., a Florida corporation NOTARY PUBLIC' Type or Print Name Commission No. My Commission Expires: Personally Known OR Produced Identification Type of Identification Produced OJO/~ 950~12%earirm ~/2Z/95\e~: tcc 9/1/95:m Page 30 of 31 STATE OF ) ) COUNTY OF ) THE FOREGOING INSTRUMENT was acknowledged before me this day of , 1995, by , President of OCEAN BREEZE FESTIVAL PARK, INC., a Virginia corporation. NOTARY PUBLIC Type or Print Name Co~ission No. My Commission Expires: Personally Known OR Produced Identification Type of Identification Produced 9/1/95;ms Page 31 of 31 ~materials and substances in the environment (collectively "Governmental Authority(ies)"). Notwithstanding the provisions set forth above, SELLER and MORTGAGEE represents they have collective knowledge as to the existence of an environmental problem(s) adversely affecting the real property which is subject to this Agreement. Specifically, the real property has been identified by the Palm Beach County Department of Resource Management as having contaminate~wells and soil which will require remedial action the extent of which has not yet been determined as of the date of this Agreement. SELLER AND MORTGAGEE jointly and severally represent and warrant that they shall be jointly and severally responsible for all costs and expenses related to any and all studies required by any governmental agency to determine the exWcent of the contamination and for ail costs and expenses relative to any and all remedial action required to correct and eliminate the contamination. Furthermore, the SELLER and MORTGAGEE severally and jointly agree to indemnify and hold PURCHASER harmless from any and all liability, causes of action, claims, damages and injunctions which may be imposed or brought as a result of the contamination problem that exists on the property. 4.7 SELLER has full power and authority to enter into this Agreement and to assume and performits obligations hereunder: the execution and delivery of this Agreement and theperformanceby the SELLER of its obligations hereunder have been duly authorized by such partnership action, if the SELLER is a partnership, cr by such corporate action, if the SELLER is a corporation (including, Page 10 of 31 without limitation, approval of the board of directors and shareholders thereof) as may be required, and no further action or approval is required in order to constitute this Agreement as a binding a~denforceabte obligation of theSE?J~R; the execution and delivery of this Agreement and the consummation of the transaction contemplated hereunder on the part of the SELLER do not and will not violate the partnership agreement of the SELLER, if SELLF/~ is a partnership, or the certificate of incorporation and by-laws of SELLER, if SELLER is a corporation, do not and will not conflict with or result in the breach of any condition or provision, or constitute a default under, or result iht he creation or imposition of any lien, charge, or encumbran=e upon any of the Land or assets of the SELLER by reason of the terms of any contract, mortgage, lien, lease, agreement, indenture, instrument or Judgment to which the SELLER is a paz~cy of which is or purports to be binding upon the SELLER or which affects the SELLER; no action by any federal, state or municipal or other governmental department, commission, board, bureau or instrumentality is necessary to make this Agreement a valid instrument binding upon the SELLER in accordance with its terms. 4.8 The SELLER represents to the PURCHASER that the Marina Proper~y is not subject to any deed restrictions or declaration of restrictions running with the property which would have a material adverse affect on the use of the property for its intended use. OJOl~ Page 11 of 31 4.9 SELLER warrants that it will not, between the date of this Agreement and the closing, without PURCHASER'S prior written consent, create by its 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, easements, covenants, conditions or restrictions. Additionally, the SELLER warrants that it will not, between the date of this agreement, and the closing take any action to terminate, amend or anyway alter any existing leases-presently in existence except iht he ord-inary course of business. 4.10 Between the date of this Agreement and the date of closing, SELLER wi11 not file any application for a change of the present zoning classification of the Land. 4.II SELLER shall not list or offer the property for sale or solicit or negotiate offers to purchase the property whiIe this Agreement is in effect. 5. EVIDENCE OF TITLE. 5.1 Title to the Real Property. SELLER shall convey to PURCHASER at closing, by .delivery of a Florida General warranty Deed, regarding the subject real property subject to all easements and. restrictions of record and interests as identified in Paragraph 2.3(¢). PURCHASER shall, within ten calendar (10) days after the execution of this Agreement by both parties, secure a title insurance commitment issued by a reputable title insuranoe company acceptable to the PURCHASER for the subject property committing to insure PURCHASER'S title to the real property subject only to those Page 12 of 31 exception set forth in the c0~itment. All costs and expenses relative to the issuance of a title commitment and an owner's title policy shall be borne by the PURCHASER. P~RCHASER shall have fifteen (15) days from the date of obtaining said title commitment to examine said commitment. If PURCHASER objects to any exception to title as shown in said commitment, PURCHASER shall within twenty (20) days of receipt of said commitment, notify SELLER in writing specifying the specific exception(~) to which it objects. Any objection(s) of which PURCHASER has so' notified $~IJ~ER, and which SF.'LLER chooses to cure, shall be cured by SELLER so as to enable the removal of said objection(s) from the title commitment within fifteen ('15) days after PURCHASER has provided notice to SELLER. Within five (5) 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 SE~ 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 ten (10) days after receipt of a cure notice specifying an uncured objection, in which event all instruments and monies held by the F. scrow 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 Page 13 of 31 Uncured objection without reduction of purchase price and free from any claim for damages. 5.2. Survey and Legal .DescriDtton. Within twenty (20) calendar days after execution of this Agreement by both parties, PURCFa%S~ shall order: (i) a true, complete and reproduoible tracing of a current survey map (current is defined to be certified within fifteen (15) days of the date of the Agreement), prepared by a registere~ 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 hundredth acre) of real property contained in the land, all buildings, improvements and encroachments; and (ii) a correct Iegal 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 requirement~ of an ALTA standards survey e~tablished, in the State of Florida and in connection with the issuance of an owner's title insurance policy on. the land. The survey shall be certified to SELLER, PURCHASER and the title insurance company issuing the title insurance. 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 intended use as a marina facility or Page 14 of 31 '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 ten (10) days after receipt of the survey by PURCHASER within which to approve or disapprove any survey objection and to give notic~ to SELI~R of any disapproval thereof indicating in reasonable detail the ~atureand reasons for PURC~__ASER'S objection. PURCHASER agrees that it will not arbitrarily or unreasonably 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 as a marina. In the event PuRcHAsERprovides a notice of disapproval of a survey objection to SELLER, the rights and obllgations of the parties respecting such survey objections shall be governed by Section 5.1 hereof such that the parties shall have the same rights and objections as though such survey objection objected to was a new exception to title which was discovered and objected to withinthe contemplation of Section 5.1. 6.0 RISK OF LOSS. 6.1 Risk of loss or damage from fire, other casualty, or both, is assumed by SELLER until the deed described in Paragraph 5.1 hereof is delivered, by SELLER to PURCHASER. In the event any portion of the Land is destroyed, rendered unleaseable or dysfunctional by fire or other casualty then the following shall apply: 8/221~J~J~: tcc Page 13 of 31 (a) If the damage, as determined by the insurance adjuster, is not more than S50,000.00: (i) PURCHASER shall complete settlement and all insurance proceeds shall be paid to the PURCHASER, and (ii) SELLER shall pay to PURCHASER on the date of closing the full amount of any deductibleunder SELLER'S fire and extended coverage insurance policy; (b) If the damage., as determined by the insurance adjuster, is more than $50,000.00, PURCHASER shall have the option to (i) complete the settlement hereunder an~ collect all available insurance proceeds, in which case. SET~.~R shall pay to PURCHASER on the date of closing the full amount of any deductible under S~L~ER'$~ fire and extended coverage insurance policy, or (ii) terminate this Agreement by written notice to SELLER on or' before the closing date 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 (c} In the event the Land, or any portion thereof, is condemned by any governmental authority under its power of eminent domain or becomes the subject of a notice of condemnation, PURCHASER may elect to terminate this Agreement by written notice to SELLER within fifteen (15) days after notice to PURCHASER of such condemnation, in which event the entire deposit and interest shall be returned to PURCHASER and neither party shall have any further claim against the other, or PURCHASER may elect to complete settlement hereunder, in which event SELLF~ shall assign to ~031;~%Mri~ Page 16 of 31 PURCHASER all of SELLER'S right~ title and interest in and to any condemnation awards, whether pending or already paid. 6.2 DEDICATIONS. SELLER agrees and acknowledges that it will not dedicate any portion of the real property identi£iedon Exhibit A to any governmental agency or private entity during the pendency of this Agreement without first obtaining the written approval of PURCHASER. 7. conveyed TRANSFER OF TITLESUBJE~TO. The real property shall be subject only to those exceptions as set forth in paragraphs 2.3, 5..1, 5.2 Exhibits C, D, E and F, and to: (a) Water lines, sanitary sewer, drainage, gas distribution, electrical and telephone-easements of record provided that they are used to service the L~nd 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. ADJUSTMENTS AT CLOSING. The following are to be apportioned pro-rata as of the date of closing. Ail rental payments electric, non-delinquent taxes and assessments (real property and personal property) computed on a fiscal year basis, water and sewer charges and leases. SELLER shall submit evidence of payment of water, electric and ~ewer 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. ~50512~.rin. Page 17 of 31 Tin the event that the actual cost for the month of closing as determined subsequent to closing are higher or lower than the pro-rated figure, then PURCHASER and SELLER agree to adjust the pro-rations accordingly. 9. CLOSING DATE AND PLACE- The closing will take place at such location in Palm Beach County, Florida designated byPURCHASER at a time mutually agreed upon on or before fifteen (15) days subsequent to the expiration of the Inspection Period or the extension of the Inspection Period as referenced herein. 10. DEFAULT. If the PURCHASER shall fail or refuse to consummate the transaction in accordance with the terms and provisions of this agreement, the deposit and interest shall be paid to SELLER as agreed upon liquidated damages. In the event of such default by PURCHASER, SELLER'S sole and entire remedy shall be restricted to retention of the deposit plus all accrued interest, if any, and PURCHASER shall have no other responsibility or liability of any kind to SELLER by virtue of such de£ault. In addition to the other remedies which PURCHASER may have specifically set forth in this Agreement in the event of SELLER'S default, PURCHASER shall beentitled to equitable relief to enforce the terms and conditions of this Agreement either through a decree for specific performance or injunctive relief. 11. A~,SIGNMENT. This Agreement shall be fully and freely assignable by PURCHASER, but subject to paragraph 2.2. PURCHASER shall deliver to SELLER a copy of any such assignment which ~halt Dd~/m 8/22/95%ms: ~cc 9/lygs:z~ Page 18 of 31 ~n the event that the actual cost for the month of closing as determined subsequent to closing are higher or lower than the pro-rated figure, then PURCHASER and SELLER agree to adjust the pro-rations accord/ngly. 9. CLOSING DATE AND P~CE- The closing will take place at such location in PatmBeach County, Florida de~ignatedbyPURCHASER at a time mutually agree~ upon on- or before fifteen (15) days subsequent to the expiration of the Inspection Period or the extension of the Inspection Period as referenced herein. 10. DEFAULT. If the PURCHASER s'hall fail or refuse to consummate the transaction in accordance with the term~ and provisions of this agreement, the deposit and interest shall be paid to SELLER as agreed upon liquidated damages. In the event of such default by PURCHASER, SELLER'S sole and entire remedy shall be restricted to retention of the deposit plus all accrued interest, if any, and PURCHASER shall have no other responsibility or liability of any kind to SELLER by virtue of such default. In addition to the other remedie~ which PURCHASER may have specifically set forth in this Agreement iht he event of SELLER'S default, PURCHASER shall be entitled to equitable relief to enforce the termsand conditions of thisAgreement either through a ~ecree for specific performance or injunctive relief. 11. ASSIGNMENT. This Agreement shall be fully and freely assignable by PURCHASER, but subject to paragraph 2.2. PURCHASER shall deliver to SELLER a copy of any such assignment which, shat1 Page 18 of 31 be in writing and shall include an express assumption of the assignee of all obligation of PURCHASER under this Agreement. 12. ~. The parties hereto represent and warrant to each other that there has been no Broker, Sales Representative or Agent, involved in this transaction who would be entitled to a commission or other compensation, and each agrees to indemnify and hold the other harmless of and from any and all claims, demands, actions or suits (including all court costs and attorney fees) arising out of or relating to any alleged agreement by either party hereto to pay a co~_~ission or other compensation to any broker, sales representative or agent in connection with this transaction. SELLER agrees ~o and does hereby indemnify and hold PURCHASER harmless of and from any and all claims, d~mages, actions or'suits (including all court costs and attorney's fees) arising out of or relating to any agreement by SELLER to pay a commission or other compensation to any broker, sales representative or agent in connection with this transaction. Conversely, PURCHASER agrees to and does hereby indemnify and hold SELLER harmless of and from any and all claims, damages, actions or suits (including all court costs and attorney's fees} arising out of or relating to any agreement by PURCHASER to pay a commission or other compensation to any broker, sales representative or agent in connection with this transaction. 13. COSTS. SELLER shall be responsible for the costs and expenses related to all documentary stamp tax and recording expenses incurred relating to the recording of the General Warranty D JO/ms Page 19 of 31 '~LDeed. PURCHASER shall be responsible for all costs relative to the __ preparation of the survey and the costs and expenses relating to the issuance of an owner's title insurance policy. SELLER shall be solely responsible for the payment of any prepayment penalty associated with the existing mortgage, if any, on the property. Additionally, SELLER and/or MORTGAGEE shall be responsible for all costs and expenses incurred in testing for identification purposes and ellmlnating for remedial purposes issues associated with the contamination of the real property. 14. L~ASE$ AND SECURITY DEPOSITS. Upo~the execution of this Agreement, SELLER shall allow PURCHASER access to all written leases. SELLER shall furnish PURCHASER with valid and complete accounts receivable schedules and occupancy status reports for the most recent month of operation which shall be attached as Composite Exhibit "D", which shall be delivered to PURCHASER within five (5) days after the execution of this Agreement by both parties. The accounts receivable roll and occupancy status reports shall contain names, addresses, terms, unit number, unit size and amount of rent each tenant currently pays SELLER. At the closing, SELLER shall turn over to PURC~ASER all keys, security deposits and all original lease documents. Immediately after closing, PURCHASER shall notify each and every tenant in writing that the new owner of the Land is PURCHASER and that the tenant must attorn to PURCHASER and forthwith deliver all rent to PURCHASER. PURCHASER and $~LLER agree and acknowledge that PURCHASER will make a good faith effort to recover all past due rentals subsequent to closing. To the Page 20 of 31 'extent that PURCHASER is successful in collecting any past due rentals in the thirty (30) day period subsequent to closing, all past due rental payments collected shall be paid to SELLER at the end of the thirty (30) day period. All past due rental payments collected subsequent to this thirty (30) day period shall be retained by PURCHASER. PURCHASER and SELLERagree that as of thedate of closing an accounting wil! be made as to the amount of prepaid rents held by SELLER. Upon expiration of the thirty (30} day period referred to above, SELIF. R shall tender to PURCHASER all prepaid rents held. I5. i~. UPon the execution of this Agreement, SELLER shaII provide PURCHASER with a copy of any and aZ1 existing contracts, licenses and permits affecting the Property and in SELLER'S possession. At closing, SELLER shall deliver to PURCHASER, an Assignment of any unexpired warranties and guarantees in effect as of the Settlement Date with respect to the Marina Property and/or any mechanical equipment comprising a part thereof. At closing, SELLER shall deliver to PURCHASER, an appropriate instrument of assignment, assigning to PURCHASER, all of SELLER'S right, title and interest in and to any and all permits heretofore issued to SELLER for the development of the Marina property. 16. SELLER'S WARRANTIES. SELLER hereby acknowledges and warrants to the best of its knowledge that all of the following are DJl~;m Page 21 of 31 ~tr~e and correct and all of which Shall survive the closing for a period of nine (9) months from the date of closing. (a) There are no leases, letting or tenancies affecting any part of any of the Land except tenant leases and billboard leases and. there are no written or oral Dromises, u~derstandings, agreements or commitments between SELLER (or any predecessor of SELLER) and any tenant or other person affecting the Marina Proper~y. (b) Except as may be stated in the lease agreement(s), and as represented on the account receivable schedules, no tenant has prepaid rent for more than the current- rental period, has received or is entitled to receive a rent concession in connection with its tenancy, or is entitled to any alterations, installations, decorations or othe~ similar work (not yet performed) for consideration (not yet given) in connection with its tenancy. All alterations and installations, decorations and other work required to be performed by SELLER (or SELLER'S predecessors in title) under any lease existing on the date hereof or other agreement affecting the Land has been (or will be prior to closing) completed and paid for in full. Prior to closing, SELLER shall not give any rent concessions or otherwise in the normal course of business agree to do any work for, or give any considerations other than possession to, any tenant except with PURCHASER'S prior written consent. (c) SELLER has received no written notice on or prior to the date hereof from any govern~en-t, or any agency, body 950312~rmr ~ nm Page 22 of 31 br subdivision thereof, that the buildingm and tangible personal property (as such term is hereafter defined, including without limitation the roofs, the heating, the ventilating, air conditioning, and electrical system~, the foundations and the fixture~ and equipment used in the general o~ration of the property), are not in good working order or otherwise in need of repair or replacement. (d) SELLF~ is not in default in any of SE?~.mR,S obligations to any supplier of any materials or ~ervices obtained or to be used An connection with the property. (e) The insurance policies presently in effect with respect to the property are as set forth in Exhibit "F" to be provided by SELLER within five (5) days after execution of this Agreement by both parties and such insurance or appropriate replacements thereof, shall be kept in effect by SEL~,RRthroughthe closing hereunder. SE[J,~R 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 "F" 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. (f) If PURCHASER determines that any of the representations or warranties contained herein are not true and correct in a material way, it shall promptly notify SELLER in writing specifying that which is untrue or inaccurate. Upon recelptof the written notice, SELLER shall use its best efforts to DJD/ms a/22/95%,,,s: t:¢ WI~ :ms Page 23 of 31 in accordance with applicable law, Agreement, ~/RCFa%SER acknowledges notification: cure or correct such inaccuracy within a thirty (30) day calendar period and, if unsuccessful, then this Agreement shall, at PURCHASF/~'S option and in PURCHASER'S sole and absolute discretion, be dee~ed to beterminated and neither party shall have any further obligations or liability to the other arising from thisAgreement. 17. RADON GAS DISCLOSURE. Seller hereby notifies I~JRCHASER, and by execution of this receipt of the following "RADON GA~-' Radon is a naturally occurring radioactiYe 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. Additionally information regarding radon and radon testing maybe obtained from your county public health unit-. 18. NON-FOREIGN PERSON AFFIOAVIT. SELLER shall deliver to the PURCHASER at or prior to closing, an affidavit ("Affidavit") which states the SELLER'S employer identification number and office address, and that SELLER is not a "foreign person" within, the meaning of the United States tax laws and to which reference is made in the Internal Revenue Code Section 1445. (b)(2), and which states the state within the United States under which the SELLER was organized and exists. 19. ENFORCEABILITY. If any provision in thlsAgreement 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 ~'~)~t l~ I ~ law. If any provision in this Agreement shall, Page 24 of 31 n~twithstanding the preceding sentence, be held illegal or unenforceable, such illegality or unenforceabilityshall not affect any other provision of thi~ agreement. 20. NO M~RG~. Ail warranties, representations, covenants, ter~s and condition~ herein contained shall survive the delivery and recording of the deed for a perio~ of nine months. 21. CONTINGeNCIeS. PURCHASER'S obligations under this Agreement is contingent upon the following: (a) That the PURCHASER is fully satisfied with its due diligence investigation conducted during the investigation period. (b) That the environmental audit(s] conducted by PURCHASER i~ satisfactory and acceptable to PURCHASER. (c) That the title is clear and marketable. (d) That the PURCHASER'S appraisals disclose a value acceptable to the City Commission. (e) That the PURCHASER can prepare and publish an RFP relative to the development of the property and the CITY'S acceptance and award of an agreement to a successful RFP proposal. F~rthermore, the PURCHASER shall have the right to reject any and all proposals submitted in response to the RFP in its sole discretion. 22. Notwithstanding any other provision of this agreement, the CITY, in its sole discretion, can declare this Agreement .null DJD/~16 911195 Page 25 of 31 ~a~d void provided it makes such declaration no later than one hundred twenty (120) days from the date of execution of this Agreement by both parties. 23. P0 LIABILITY. Unless thi~Agreement is properlyexecuted by bo~/~ parties within the specified time Period, neither party shall be obligated to perform the covenants herein contained. 24. NOTICE. All written notices shall be deemed effective if sent to the following places: PURCHASER: CITY OF BOYNTON BEACH a municipal corporation 100 Boynton Beach Blvd. Boynton Beach, Florida ATTN: Carrie Parker, City Manager With a Copy to: SELLER: JA~ES A. CHEROF, ESQUIRE Josias & Goren, P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33308 MARINA MARKETPLACE, INC. a Florida corporation llZ0 Laskin Road Virginia Beach, VA 23451 Attn: Ms. Andrea M. Kilmer With a Copy MORTGAG~: Jay F. Wilks, Esq. Wilks & Alper, P.C. 700 Town Point Center 150 Boush Street Norfolk, VA 23210 OCEAN BREEZE FESTIVAL PARK, INC, a Virginia corpora=ion, 25. SFF~CTIV~ DhTE. Unless both SELLER and~JRCHASER execute this Agreement by september 6, 1995, this Agreement shall be null, Page~2$ of 31 ~oid and ineffective. This Agreement shall be deemed effective as of the last date that the document is executed byeitherPURCHASER or SELLER. 26. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Florida. 27. ENTIRE AGREEMENT. Ail prior understandings and agreements between SELLER and PURCHASER are merged in this Agreement. This Agreement completely expresses their full agreement. 28. NO ORAL CHANGE. This Agreement may not be changed or amended orally. 29. SUCCESSORS. This Agreement shall apply to and bind the distributes, executors, administrators, successors and assigns of SELLER and PURCHASER. 30. TIME. TIME IS OF THEESSENCE OF THIS AG~EEMENTand in the performance of all conditions, covenants or requirements and obligations by the parties hereto. Waiver of performance of satisfaction or timely performance or satisfaction of any condition, covenants, .requirement or obligation by one party~hall not be deemed to be a waiver of the performance of satisfaction of any other condition, covenant, requirement or obligation unless specifically consent to in writing. Whenever dates specified herein shall fall on a weekend or legal holiday, the date shall be extende~ to the next succeeding business day which shall not be a weekend or legal holiday. Page 27 of 31 31. LITIGATION AND ATTORNE¥S'..FEES. In the event it shall be necessary for either party of this Agreement to bring suit or enforce any provision hereof or for damages on account of any breach of thisAgreement, the prevailing party shall be entitled to recover from the other in addition to any damages or other relief granted as a result of such litigation, all costs and expenses of such litigation and reasonable attorney,s fees as fixed by the court. 32. This Agreement, when executed by all parties, constitute the AgreemeNt between the PURCHASER, SELLER and MORTGAGEE, and represents a goo~ faith effort toward the sale and purchase of the real property contemplated within the terms and provisions oft his Agreement. Upon execution of this Agreement by the SELLER and MORTGAGEE, SELLER and MORTGAGEE agree to take the property off the market and not offer it for sale or lease to any third party until such time that the PURCHASER either terminates this Agreement or closes under the terms of this Agreement. Furthermore, SELLER and MORTGAGEE agree and warrant that they shall not, individually or collectively, solicit or accept any offers nor engage in any discussion(s) concerning the sale of the property other than the transaction contemplated by this Agreement until such time as the PURCHASER determines not to conclude the 9! 1/95 :m~ , Page 28 of 31 transaction in accordance with the time frame set forth in this Agreement. IN WITNESS WHEREOF, the partie~ have executed thi~ Agreement as of the dates indicated below: WITNESS: PURCHASER: CITY OF BOYNTON BEACH a municipal corporation Attest: City Clerk By: Mayor a Florida c¢ N -~ ~- Presi0ent MORTGAGEE: President STATE OF FLORIDA ) ) COUNTY OF BROWARD ) Page 29 of 31 THE FOREGOING INSTRUMENT was acknowledged before me this day of , 199§, by , and as Mayor, City Manager and City Clerk, respectively, of the CITY OF BOYNTON BEACH, a municipal corporation. NOTARY PUBLIC My Commission Expires Type or Print Name Commission No. Personally Known OR Produced Identification Type of Identification Produced ) THE FOREGOIN~ INST~UME~Twas acknowledged ~efore ~ this day of ~6~ , 1995, by President of ~INA~P~CE, INC.~ ~ Florid~ ~urporation ~pe or Print Name co~ission No. My co~mission Expires: Z{~i}q~ Personally Known X OR Produced Identification Type of Identification Produced ~O]12\.arir~ Page 30 of 31 STATE OF cou e ) THE FOR~.GOING INSTRUMENT was acknowledged before me this Presider of OCE~ B~EZE FESTIVAL P~, INC., a Vi~inia co--ration. Ty~ or ~rlnt Name Co~is~ion No. Personally ~o~ ~ OR Produced Identifi~tion Type of Identification Produced Page 31 of 31 O © Marina Propert_~ ~ Lots 37 and 38 in Dewey's Subdivision, Plat Book 1, page 37 of the Public Records of Palm Beach County, Florida, Less the right-of-way of Casa Loma Boulevard and Less. the right-of-way of orange Grove Boulevard, Toge.ther with the reversionar~ interest, if any, of mortgagor in the-rights-of-w.a¥ of Casa Loma 'Boulevard and Orange Grove Boulevard. ~. The East half of Lot 39 and ~he Eas~ half of Lot 42 in Dewey's Subdivision, Pla= Book 1, page 37, of the Public Records of Palm Beach County, Florida (Les~ the South 30 feet of said Lot 42 a~ show~ in Deed Book 341, page 188), T~ether With uhe reversionary interest, if any, of mortgagor in the right-of-way of Ocean. Avenue. -. PARCEL ~:. That par~ of Section 27, Township 45 South, Range 43 East, Palm Beach County, Flor£da descrlbe~ as follows: Commence at the Southeast corner of .L0? 37, Dewey's Subdivision, acco_rd,.'..g to the plat thereof rec~_.rae? Ln Plat Book 1 at page 37 of =~e Public Records of Palm Beach Cotuaty, Florida; thence N. ?o 14' 10" E., along the East line of said Lot 37 and along the west right-of-way line of the I~tracoascal Waterway. 2~.20 feet to a line 25.0 feet North of an4 parallel with the South line of said Lo~ 37 an4 the Point of Beginning; thence East, along said parallel ll~e, 33.85 feet; thence N. 5o 47" 36" E., 162.02 feet; ~hence N. 820 45' 50" W., 30~0 feet to the sai~ East line of Lot 37; thence S. 7o 14' 10" W., along said East line, 146.24 feet to the said Point of Beginning. EXHIBIT "A" SCHEDULE B LIST OF PERSONAL PROPERTY NONE (EXCLUDES STORE INVENTORY AND REMOVABLE FIXTURES, I.E., COUNTERS AND' CASH REGISTER)