R20-087 (Rescinded 11-4-2020) 1 RESOLUTION NO.R20-087
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO
5 SIGN THE PURCHASE AND SALE AGREEMENT BETWEEN THE
6 CITY OF BOYNTON BEACH AND PULTE HOME COMPANY,
7 LLC FOR THE CITY OWNED PROPERTY KNOWN AS NICKELS
8 PROPERTY; AND PROVIDING AN EFFECTIVE DATE.
9
10 WHEREAS,on November 5,2019,The City Commission approved the City Manager
11 and City Attorney to negotiate a Purchase and Sale agreement based on the conditions set
12 forth in a Letter of Intent from the PulteGroup to purchase approximately 14.7 acres on
13 Nickels Blvd.; and
14 WHEREAS, Staff has negotiated a Purchase and Sale Agreement that has been
15 executed by the Pulte Home Company, LLC.,and staff is recommending approval; and
16 WHEREAS,the City Commission has determined that it is in the best interests of the
17 residents of the City to approve a Purchase and Sale Agreement with Pulte Home Company,
18 LLC.,to convey ownership of the City owned property located on Nickels Boulevard.
19 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
20 THE CITY OF BOYNTON BEACH,FLORIDA,THAT:
21 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
22 being true and correct and are hereby made a specific part of this Resolution upon adoption
23 hereof.
24 Section 2. The City Commission does hereby approve and authorize the Mayor to
25 sign a Purchase and Sale Agreement with Pulte Home Company, LLC., for the City owned
26 property located on Nickels Boulevard,a copy of the Purchase and Sale Agreement is attached
27 hereto as Exhibit"A".
28 Section 3. This Resolution shall become effective immediately upon passage.
S:\CA\RESO\Agreements\Purchase and Sale Agreement with Puke Homes for Nickels Property-Reso.docx
29 -kV\
30 PASSED AND ADOPTED this q day of August,2020
31 CITY OF BOYNTON BEACH, FLORIDA
32 YES NO
33 /
34 Mayor—Steven B. Grant ✓
35
36 Vice-Mayor—Ty Penserga
37
38 Commissioner—Justin Katz (�
39
40 Commissioner—Woodrow L. Hay
41
42 Commissioner—Christina L. Romelus
43
44 VOTE 5 '�
45
46 ATTEST:
47
48
49 A..',.I_%iAur21_
50 C tal Gibson,MMC
51 City Clerk
52
53
54 (Corporate Seal)
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S.\CA\RESO\Agreements\Purchase and Sale Agreement with Pulte Homes for Nickels Property-Reso.docx
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT FOR PURCHASE AND SALE (this "Agreement") is dated as of
the Effective Date (as defined in Section 27) and entered into by the City of Boynton Beach,
Florida, a Florida municipal corporation ("Seller"), and Pulte Home Company, LLC, a Michigan
limited liability company,and/or its assigns("Buyer").
BACKGROUND:
A. Seller is currently the owner of certain parcels of real property containing
approximately 15 acres in the aggregate, located in unincorporated Palm Beach County
("County"),Florida, and which is more particularly described on Exhibit"A"attached hereto and
made a part hereof("Land"). The legal description of the Land shall be subject to verification by a
survey prior to the expiration of the Investigation Period,as defined in Section 4 herein.
B. The Land is being acquired with the primary intent of developing a residential
community containing a minimum of ninety-one (91) single-family residential units, together with
associated amenities,parking and other property features(the"Buyer's Intended Use").
C. The parties to this Agreement have agreed to the sale and purchase of the Property
on the terms and conditions which are set forth in this Agreement.
AGREEMENT:
1. Purchase and Sale. Subject to all of the terms and conditions of this Agreement,
Seller will sell to Buyer and Buyer will purchase from Seller the Land, together with all
appurtenances, rights, easements, and development rights of way incident thereto, including,
without limitation,the following(collectively, with the Land,the"Property"):
(a) All easements, rights of way, privileges, licenses, appurtenances and any other
rights, privileges and benefits belonging to the owner of, running with title to, or in any way
related to,the Land, if any;
(b) All land use rights or other consents, authorizations, variances, waivers, licenses,
permits, vested concurrency rights, approvals, development orders, or any other approvals issued
or granted by or from any governmental authority with respect to the Land, if any;
(c) All percolation, soil, topographical, traffic, engineering and environmental
reports, appraisals or studies in the possession or control of the Seller, and all riparian, littoral
rights,title to submerged lands and other water rights related to or benefiting the Land, if any;
(d) All existing rights to sewage treatment capacity, potable water capacity, utility
mains, service laterals,hydrants,connections,hood-ups and valves located on,or adjacent to,
and servicing or available to service the Land;
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(e) Any and all other agreements, contracts, covenants, variances and rights, benefits
and privileges, and all other intangible rights of Seller related to or benefiting the Land, if any,
including the prospective abandonment of unwanted easements or rights of way.
2. Purchase Price.
(a) Purchase Price. The total purchase price for the Property is TWO MILLION
TWO HUNDRED SEVENTY FIVE THOUSAND and No/100 Dollars ($2,275,000.00)
("Purchase Price").
(b) Initial Deposit. Buyer has previously delivered to Seller a cash deposit in the
amount of TEN THOUSAND DOLLARS ($10,000.00) ("Initial City Deposit") following the
execution of a Letter of Intent relating to the purchase of the Property.
(c) Additional Deposits. Within five (5) business days after the expiration of the
Investigation Period, Buyer shall (i) deliver directly to Seller an additional cash deposit in the
amount of TEN THOUSAND DOLLARS ($10,000.00) (the "Additional City Deposit" and,
together with the Initial City Deposit, the "City Deposits"), and (ii) deliver an additional cash
deposit to Goren, Cherof, Doody & Ezrol, P.A., as escrow agent ("Escrow Agent"), in the
amount of NINETY FOUR THOUSAND DOLLARS ($94,000.00) (the "Escrow Deposit", and
together with the Additional City Deposit, the"Additional Deposits"). Escrow Agent shall hold
the Escrow Deposit in a federally insured escrow account.
(d) Treatment of Deposits. The Initial City Deposit and the Additional Deposits,
together with all interest earned on them, are collectively referred to in this Agreement as the
"Deposit", as applicable, and the Deposit shall be fully applied to the Purchase Price at Closing.
Upon payment,the City Deposits shall be non-refundable to Buyer except in the event of a Seller
default under this Agreement or under the circumstances expressly set forth in Section 5(a).
(e) Payment of Purchase Price.At the time of Closing, the Buyer will pay to Seller
by wire transfer of funds the balance of the Purchase Price as adjusted for prorations and
adjustments as set forth in this Agreement.
3. Title Insurance; Survey.
(a) Title Commitment. Within fifteen (15) calendar days from the Effective Date,
Buyer shall,at its sole cost, obtain an ALTA title insurance commitment with respect to Property
("Title Commitment") (accompanied by electronic copies of all documents affecting the
Property and which are set forth as exceptions therein), issued by any major national title
insurance underwriter selected by Buyer(the"Title Company"). The ALTA Owner's Policy of
Title Insurance to be issued pursuant to the Title Commitment shall be referred to under this
Agreement as the"Title Policy".
(b) Title Objections. Buyer shall have fifteen (15)calendar days from the later to be
received of both the Title Commitment and the Survey(as defined in Section 3(e))to give Seller
written notice ("Objection Letter") of those matters shown in the Title Commitment or the
Survey to which Buyer objects ("Title Objections"). If the Buyer fails to provide the Objection
Letter to Seller within such time period,then, for all purposes of this Agreement, the Buyer shall
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be deemed to have accepted title in the condition described in the Title Commitment. Except for
Monetary Liens(which Seller shall be required to satisfy or otherwise cure whether or not timely
objected to by Buyer), any title exceptions which are not objected to within such time period
shall be deemed to be acceptable to Buyer and permitted exceptions("Permitted Exceptions").
(c) Cure Period. By no later than ten (10) business days after receipt of the Title
Notice (the "Cure Period"), Seller may, at Seller's sole discretion, attempt to eliminate or
modify all unacceptable matters to the satisfaction of Buyer, but Seller shall have no obligation
to do so, except that Seller shall be obligated to pay, discharge or bond off any monetary lien or
monetary encumbrance affecting all or any portion of the Property ("Monetary Liens") prior to
the Closing, provided such lien or encumbrance is not created by Buyer. Monetary Liens shall
specifically exclude taxes and/or assessments levied by any private or governmental agency and
attributable to a period of time on or after the Closing Date. If any Title Objections are not cured
(as determined by Buyer) within the Cure Period (other than Monetary Liens which Seller shall
release or satisfy prior to Closing), Buyer may elect to (i) terminate this Agreement and the
Escrow Deposit shall be returned by Escrow Agent to Buyer, and all parties hereto shall be
released from any and all obligations and liabilities hereunder or(ii)waive any Title Objections,
by written notice to the Seller, in which event such Title Objections (other than Monetary Liens)
shall be deemed Permitted Exceptions and the Closing shall take place pursuant to this
Agreement without any abatement in the Purchase Price. If Buyer fails to notify Seller of either
election under the preceding sentence within ten (10) business days subsequent to the end of the
Cure Period, then Buyer shall be deemed to have waived any such Title Objections (other than
Monetary Liens). Notwithstanding anything contained in this Agreement to the contrary, at or
prior to Closing, Seller shall deliver such documentation or take other action necessary for the
Title Company to delete the "standard exceptions" under Schedule B-II of the Title
Commitment relating to the "gap", survey matters (subject to Buyer's delivery of a current
Survey and any specific matters disclosed therein identified by the Title Company), unrecorded
easements, parties in possession,and construction liens.
(d) Updated Title Commitment. In the event that any matter shall be recorded
against the Property between the date of the Title Commitment and the Closing Date, which is
not contained in the Title Commitment ("New Matter"), then each such New Matter shall be
deemed to be objectionable to Buyer and shall be removed by Seller promptly upon Buyer's
request, but in all events, prior to the Closing Date. Prior to the Closing Date, Seller shall obtain
and deliver to Buyer an updated Title Commitment with an effective date no earlier than fifteen
(15)days prior to the Closing Date.
(e) Survey. Within fifteen (15) calendar days from the Effective Date, Seller shall
provide to Buyer (and its counsel) a prior survey with respect to the Property, if one exists,
("Existing Survey"), provided Seller has a survey in its possession. By no later than sixty(60)
calendar days after the Effective Date, Buyer, at its sole cost and expense, shall obtain an
accurate survey of the Property, showing all recorded easements on the Property, certified to the
Title Company, Escrow Agent, and Buyer, prepared by a registered surveyor in the State of
Florida in accordance with the minimum technical standards imposed under Florida
Administrative Code Chapter 5J-17.050-.052 or ALTA/ACSM(the"Survey"). Buyer may give
notice in its Objection Letter of any defects or matters unacceptable to Buyer, which shall be
treated as a Title Objection as provided in Section 3(b) above. Any matters reflected on the
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Survey to which Buyer does not expressly object in Buyer's Objection Letter shall be deemed
Permitted Exceptions.
4. Investigation Period.
(a) Property Documents. Within fifteen(15) calendar days after the Effective Date,
Seller shall provide Buyer with any and all relevant information relating to the Property which is
in Seller's possession, custody or control, including but not limited to all surveys, topographical
maps, soil borings reports, traffic studies, agreements, environmental reports, appraisals, site
planning concepts, permits, leases, contracts, project approvals, property tax bills, regulations
and or other governmental or quasi-governmental matters affecting the Property (the "Property
Documents"). In addition, Seller shall deliver to Buyer any additional information with respect
to the Property within ten (10) calendar days of the Seller's receipt thereof, which upon delivery
shall constitute Property Documents.
(b) Inspections. Buyer shall have a period commencing on the Effective Date and
expiring ninety (90) calendar days thereafter (the "Investigation Period"), to inspect the
Property in order to determine whether the Property is acceptable to Buyer for Buyer's Intended
Use, in its sole and absolute discretion. During the term of this Agreement, Buyer and Buyer's
contractors, consultants, employees, and other representatives shall have the right to conduct, at
their own expense, inspections of the Property in order to determine if the Property is acceptable
to Buyer in its sole discretion. Seller hereby grants to Buyer and its agents, servants, employees,
contractors and representatives, a right of entry upon every portion of the Property, and a right to
examine all records, documents, data or information of any kind or nature relating to or
concerning the Property in the possession or under the control of Seller or other matters
pertaining to the Property(and Seller hereby agrees to make any and all records, documents, data
or information of any kind or nature relating to or concerning the Property in the possession or
under the control of Seller available to Buyer) from time to time at all reasonable times for the
purpose of inspecting the Property. Such inspections may include, but shall not be limited to,
surveying, environmental studies, soil borings, wetlands assessments, and utilities and site
planning studies, zoning and land use analysis, the analysis of the anticipated construction costs
for development of the Property, and any other matters deemed appropriate by Buyer in its sole
discretion. Buyer may also contact all applicable agencies and governmental authorities having
jurisdiction over the Property to discuss and evaluate Buyer's Intended Use of the Property.
Seller confirms and acknowledges that such inspections and testing will be a necessary part of
the due diligence to be performed by the Buyer. During the Investigation Period, the Buyer will
prepare and submit to Seller's staff a more detailed site plan for the Buyer's Intended Use;
however, Seller shall have no right to approve, or otherwise require modifications to, the site
plan.
(c) Indemnification. The Buyer hereby indemnifies and holds the Seller harmless
from any loss, cost or expense, including, but not limited to reasonable attorney's fees and out-
of-pocket costs actually incurred by the Seller, as a result of the negligence or misconduct of any
of Buyer's agents who enter the Property prior to Closing. The indemnification provided herein
shall survive any termination or Closing under this Agreement. Buyer shall have no
indemnification obligation or other liability for, or in connection with any claims arising from
pre-existing conditions on or under the Property, or those arising from the presence, discovery,
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or disturbance of "Hazardous Substances" as such term is defined in the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.'9601 et seq. and the
regulations promulgated thereunder(as amended from time to time) and shall include oil and oil
waste as those terms are defined in the Clean Water Act, 33 U.S.C. '1251 et seq. and the
regulations promulgated thereunder(as amended from time to time), the Resource, Conservation
and Recovery Act, 42 U.S.C. '6901 et seq., and the Florida Resource Recovery and Management
Act, Florida Statutes `403.70-403.73, each as amended from time to time, and also shall include
any other elements or compounds contained in the list of hazardous substances adopted by the
United States Environmental Protection Agency(the"EPA"), or any other substance or material
defined or designated as a hazardous or toxic waste material or substance or other similar term
by an federal, state environmental statue, regulation or ordinance presently in effect, as such
statute, regulation or ordinance may be amended from time to time or any petroleum or
petroleum derivative products.
(d) Acceptance Notice. Notwithstanding anything to the contrary contained in this
Agreement, in the event that Buyer, in its sole and absolute discretion, is satisfied with the results
of its inspections, Buyer may elect to proceed with the transaction described herein by providing
written notice to Seller no later than the expiration of the Investigation Period ("Acceptance
Notice"). If(i) Buyer does not provide Seller with the Acceptance Notice before the expiration
of the Investigation Period or(ii) if Buyer provides written notice to Seller prior to the expiration
of the Investigation Period that Buyer disapproves of the feasibility of this transaction, then, in
either case, this Agreement shall be deemed terminated and shall be null and void without
recourse to either party hereto, except for those obligations which expressly survive the
termination of this Agreement. In the event Buyer timely sends the Acceptance Notice on or
before the expiration of the Investigation Period, then Buyer shall be deemed to have elected to
proceed with this Agreement and to be satisfied with its inspections.
(e) Right to Extend Investigation Period. Buyer shall have the right (provided
Buyer is not in default hereunder) to extend the Investigation Period for one thirty(30) calendar
day extension period ("Inspection Extension Period") by providing Seller with written notice
of such election by no later than three (3) calendar days prior to the expiration of the
Investigation Period. Buyer shall pay directly to Seller, within three (3) business days prior to
the end of the Investigation Period, a nonrefundable extension fee in the amount of Five
Thousand Dollars ($5,000.00) ("Extension Fee"), which shall be applied to the Purchase Price
due at the Closing.
5. Approvals Period.
(a) Approvals. During the Approvals Period as defined herein, the Buyer will, in
good faith, seek to obtain the following approvals for the purpose of enabling Buyer to develop
the Property for Buyer's Intended Use (the following items being hereafter collectively defined
as the "Approvals"). The "Approvals Period" shall mean the period from the date the
Investigation Period expires until that date which is three hundred sixty-five (365) calendar days
thereafter, provided that Buyer shall have the right, upon giving notice to Seller no later than
fifteen (15) days prior to the originally scheduled expiration date of the Approvals Period, to
extend the Approvals Period for an additional thirty(30) calendar days, so long as Buyer is still
seeking,and continues to seek, in good faith,to obtain the Approvals as set forth below:
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(i) Buyer shall have obtained in a final and non-appealable form, a DRO site
plan approval for the Property from Palm Beach County and all other required governmental
authorities whose approval, consent or permitting is necessary for the development of the
Property for Buyer's Intended Use("DRO Site Plan Approval").
(ii) Buyer shall have obtained from South Florida Water Management District
("SFWMD") an environmental resource permit, in a final and non-appealable form, for the
development of the Property for Buyer's Intended Use("ERP Approval").
(iii) Buyer shall have obtained an Environmental Resource Management Lake
Excavation Permit from Florida DEP, in a final and non-appealable form, for the development of
the Property for Buyer's Intended Use(the"ERM Permit").
(iv) The Future Land Use Plan designation for the Property shall be final and
non-appealable, if the designation has been changed, and shall allow the Property to be
developed for Buyer's Intended Use.
(v) Buyer shall have obtained from the Lake Worth Drainage District, in a
final and non-appealable form, a drainage permit for the development of the Property for Buyer's
Intended Use("LWDD Permit").
(vi) All deed restrictions and reversionary rights affecting the Property shall
have been terminated or released by all necessary parties, in a final and non-appealable form
recorded in the Public Records of Palm Beach County, Florida, sufficient to allow for Buyer's
Intended Use and issuance of the Title Policy without exception for such matters.
(vii) Buyer shall have obtained from Palm Beach County the Technical
Compliance of the preliminary plat and construction plans for Buyer's Intended Use, in a final
and non-appealable form ("Technical Compliance").
(viii) Buyer shall have obtained approval from all necessary governmental
authorities or other parties for the vacation and abandonment of the right of way(s) currently
affecting the Land, in a final and non-appealable form sufficient to allow for Buyer's Intended
Use and the issuance of the Title Policy without exception for such right of way(s).
(ix) Buyer shall have obtained such permanent easements for utilities over
neighboring properties as may be necessary for the development of the Property for Buyer's
Intended Use.
(x) Buyer and Seller shall enter into a Service Utility Agreement.
If Buyer does not receive written evidence that all of the Approvals have been obtained
by the expiration of the Approvals Period, then Buyer may terminate this Agreement by
delivering written notice to the Seller, whereupon the Escrow Deposit shall be immediately
returned by Escrow Agent to Buyer and the parties shall be relieved of any further liability or
obligation hereunder; provided,that, if the DRO Site Plan Approval has not been obtained by the
expiration of the Approvals Period, then the City Deposits shall also be immediately returned by
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Seller to Buyer. Buyer's notice of termination shall be effective upon delivery and shall be
delivered prior to the end of the Approvals Period.
(b) Duty to Cooperate. Seller shall cooperate with Buyer with respect to Buyer's
pursuit of the Approvals and shall execute such applications, requests for approvals, and
documents as Buyer reasonably requests or as may be necessary in connection with the
Approvals, including, without limitation, written consents to any applications for the Approvals
or documentation designating Buyer as Seller's agent with respect to any Approvals; provided,
that,Buyer shall be solely and absolutely responsible for all costs and expenses incurred by or on
behalf of Buyer and arising out of or related to Buyer's pursuit of and compliance with the
Approvals for the Property.
6. Closing Date. The closing(the "Closing") shall be held at the offices of Escrow
Agent, by"mail away"closing or such other location as may be mutually agreed to by the parties
upon the earlier to occur of thirty (30) days after (i)the expiration of the Approvals Period (as
defined below) as the same may be extended, or (ii) Buyer has obtained all Approvals (as
defined above) (the"Closing Date").
7. Seller's Closing Documents. At or prior to Closing, Seller shall deliver the
following items to the Escrow Agent:
(a) Special Warranty Deed. A Special Warranty Deed in the form attached hereto
as Exhibit "B" (the "Deed"), subject only to the Permitted Exceptions and with the legal
description provided in the Title Commitment as verified by the Survey.
(b) Affidavit. A "gap", no-lien and exclusive possession affidavit sufficient for the
title company to delete any exceptions for parties in possession, mechanic's or materialmen's
liens and"gap"from the Title Policy.
(c) FIRPTA Affidavit. In order to comply with the requirements of the Foreign
Investment Real Property Tax Act of 1980 ("FIRPTA"), Seller will deliver to Buyer at Closing
an affidavit under penalty of perjury stating the Seller is not a "foreign person," as defined in
Section 1445 of the Internal Revenue Code of 1986 and the U.S.Treasury Regulations
thereunder, setting forth Seller's taxpayer identification number, and that Seller intends to file a
United States income tax return with respect to the transfer. Seller represents and warrants to
Buyer that it has not made nor does Seller have any knowledge of any transfer of the Property or
any part thereof that is subject to any provisions of FIRPTA that has not been fully complied
with by either transferor or transferee. As required by law, if Seller fails to comply with the
requirement of this paragraph, Buyer shall withhold 15% of the Purchase Price in lieu of payment
thereof to Seller and pay it over instead to the Internal Revenue Service in such form and manner as
may be required by law.
(d) Seller Authorization. Evidence of Seller's authorization to consummate this
transaction, as required by the Title Company.
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(e) General Assignment. An assignment of any and all rights, licenses, development
rights, contracts and plans of Seller which pertain to the Property. Such assignment shall be in the
same form attached hereto as Exhibit"C"and made a part hereof.
(0 Marked Up Commitment. Seller shall cause the Title Company to issue a
"marked up" Title Commitment insuring fee simple marketable title to the Property, in the
insured amount of the Purchase Price, in accordance with the Title Commitment, and subject
only to the Permitted Exceptions.
(g) Additional Documents. Such additional documents as are customarily required
of seller's in transactions of this type in Palm Beach County, Florida or as may be reasonably
necessary to consummate the purchase and sale of the Property, together with any other
documents, instruments, or agreements call for under this Agreement that have not been
delivered previously, including, without limitation, Seller's counterpart to the approved closing
statement referenced under Section 8.
8. Buyer's Deliveries. At the Closing, and after the Seller has complied with all of
the terms and conditions of this Agreement and simultaneously with Seller's delivery of the
documents required in Section 7, the Buyer shall pay to the Seller by wire transfer of funds or
local cashier's check, the Purchase Price, adjusted for the credits, prorations, adjustments and
other payments provided for in this Agreement. Buyer shall prepare a closing statement which
must be approved by both Buyer and Seller.
9. Closing Costs,Prorations,and Impact Fees.
(a) Closing Costs. Buyer shall pay for the following items prior to or at the time of
Closing: (a) Costs associated to appraisals, survey, environmental reports (phase I and phase II);
(b) recording fees of the Deed, Mortgage, if any, and any other instrument as required to be
recorded in the Public Records; (c) documentary Stamps on the Deed as provided under Chapter
201, Florida Statutes; (d) all costs and expenses related to obtaining and updating the Title
Commitment;and(e)the premium for the Title Policy.
(b) Prorations. All real estate taxes and assessments for the Property attributable to
the year in which the Closing occurs shall be prorated and adjusted as of the Closing Date as an
adjustment at the Closing(regardless of whether such taxes and special assessments are then due
and payable or delinquent, and taking into consideration the maximum allowable discount). If
the tax statements for the year during which the Closing Date occurs are not finally determined,
then the assessed value for the year of closing and the millage rate for the immediately prior
fiscal year will be used for the purposes of prorating taxes on the Closing Date, with a further
adjustment to be made after the Closing Date with a reasonable period of time following such tax
figures being finalized. All special assessments which may be amortized over a number of years
will be prorated as of the Closing Date, with Seller responsible only for the period ending on the
day prior to the Closing Date. Such other items that are customarily prorated in transactions of
this nature shall be ratably prorated as of the Closing Date. The provisions of this Section shall
survive the Closing and delivery of the Deed.
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(c) Impact Fees. Seller shall not be responsible for any impact fees owing following
the Closing Date in connection with Buyer's ownership or development of the Property.
10. Seller's Warranties. Seller hereby represents and warrants to Buyer, as of the
Effective Date and again as of the Closing Date,as follows:
(a) There are no condemnation or eminent domain proceedings pending or, to the
best of Seller's knowledge, contemplated against the Property or any part thereof, and the Seller
has received no notice of the desire of any public authority to take or use the Property or any part
thereof.
(b) There are no legal actions, suits, or other legal or administrative proceedings
pending or, to the best of Seller's knowledge, threated against Seller or any part of the Property,
which do or could (i) affect title to the Property or any part thereof; (ii) prohibit or make
unlawful the consummation of the transaction contemplated by this Agreement, or render Seller
unable to consummate the same; or (iii) would have a material adverse effect on the Property,
Buyer's ability to develop the Property for Buyer's Intended Use, or Buyer's ability to sell any
residential units once constructed.
(c) The Seller has full power and authority, and all necessary governmental actions
on behalf of Seller have been taken, to execute and deliver this Agreement and all documents
now or hereafter to be delivered by it pursuant to this Agreement, to perform all obligations
arising under this Agreement, and to complete the transfer of the Property contemplated by this
Agreement. This Agreement has been duly executed and delivered by the Seller and constitutes
a valid, binding and enforceable obligation of the Seller, subject to bankruptcy and other debtor
relief laws and principals of equity.
(d) Seller is not, and will not be, a person or entity with whom Buyer is restricted
from doing business with under the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public
Law 107-56 (commonly known as the"USA Patriot Act") and Executive Order Number 13224
on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant
thereto (collectively, "Anti-Terrorism Laws"), including without limitation persons and entities
named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked
Persons List.
(e) Seller has no notice or actual knowledge of: (i)any pending improvement liens to
be made by any governmental authority with respect to the Property, (ii)any violations of zoning
ordinances or other governmental regulations with respect to the Property; (iii) any pending or
threatened condemnation proceedings with respect to the Property; or(iv) any suit, action, claim
or other proceeding which relates to or affects the Property
(0 No person or entity has any agreement, commitment, option, right of first refusal,
right of first offer, or any other right, option or agreement, whether oral or written, with respect
to the purchase of the Property or any portions thereof or any interest therein, other than Buyer,
pursuant to this Agreement. Prior to Closing, no portion of the Property or any interest therein
shall be alienated, encumbered, conveyed or otherwise transferred by Seller, nor shall Seller
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enter into any agreement, commitment, option, right of first refusal, or any other right, option or
agreement with respect to the purchase of all or any portion of the Property.
(g) Seller has not entered into any leases, options or other occupancy agreements,
either written or oral,affecting the Property and Seller has exclusive possession of the Property.
(h) There are no agreements or contracts entered into by Seller affecting the Property
that will be binding on Buyer after Closing.
(i) Seller has not made any written or verbal commitments to any governmental
authority, utility company, religious body, homeowners' association, or other organization,
group or individual,relating to the Property that would impose an obligation upon Buyer to make
any contribution or dedications of money or Property or to construct, install or maintain any
improvements of a public or private nature on or off the Property, except as may be disclosed in
this Agreement.
(j) To Seller's knowledge, there are no leases or other possessory rights, oral or
written, affecting the Property or any part thereof, and there are no adverse or other parties in
possession of the Property, or any part thereof. Between the Effective Date and the Closing
Date, Seller will not enter into any leases or other possessory rights, affecting or with respect to
the Property, without the prior written consent of Buyer.
(k) Seller is not a"foreign person" within the meaning of the United States tax laws,
to which reference is made in Internal Revenue Code Paragraph 1445(b)(2). At the Closing,
Seller shall deliver to Buyer an affidavit to such effect, which shall also state its tax identification
number.
(I) Seller has no actual knowledge that any of the Property Documents are inaccurate
or incomplete in any material way.
(m) Seller has not generated, recycled, reused, sold, stored, handled, transported or
disposed of any Hazardous Substance on the Property. Seller has not received nor is Seller
aware of any written notice from any governmental agency stating that the Property does not
comply with any applicable local, state, federal environmental law, regulation, ordinance or
administrative or judicial order relating to the generation, recycling, reuse, sale, storage,
handling,transport and/or disposal of any Hazardous Substance.
Seller makes and shall make no warranty regarding the title to the Property, except as
expressly provided in this Agreement and except as to any warranties which will be contained in the
instruments to be delivered by Seller at Closing in accordance with this Agreement. Further, Seller
makes and shall make no representation or warranty either expressed or implied (except as
specifically set forth in the Agreement)regarding condition, operability, safety, fitness for intended
purpose, use, governmental requirements, development potential, utility availability, legal access,
economic feasibility or any other matters whatsoever with respect to the Property. Buyer
specifically acknowledges and agrees that Seller shall sell and Buyer shall purchase the Property on
an "AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for the Seller's
representations and warranties specifically set forth in this Agreement or any of the instruments to
be delivered by Seller at Closing in accordance with this Agreement, Buyer is not relying on any
representations or warranties of any kind whatsoever, express or implied, from Seller, its agents,
WPBDOCS 10386778 6
{00391154.2 306-9905441) 10
officers,or employees,as to any matters concerning the Property including,without limitation, any
matters relating to (1) the quality, nature, adequacy, or physical condition of the Property, (2) the
quality nature, adequacy or physical condition of soils, fill, geology, or any groundwater, (3) the
existence, quality, nature, adequacy or physical condition of utilities serving the Property, (4) the
development potential, income potential, expenses of the Property, (5) the Property's value, use,
habitability, or merchantability, (6) the fitness, suitability,.or adequacy of the Property for any
particular use or purpose, (7)the zoning or other legal status of the Property, (8) the compliance of
the Property or its operation with any applicable codes, laws,rules,regulations, statutes,ordinances,
covenants, judgments, orders, directives, decisions, guidelines, conditions, or restrictions of any
governmental or quasi-governmental entity or of any other person or entity, including, without
limitation, environmental person or entity, including without limitation,environmental laws, (9)the
presence of Hazardous Substances or any other hazardous or toxic matter on, under, or about the
Property or adjoining or neighboring property, (10) the freedom of the Property from latent or
apparent vices or defects, (11)peaceable possession of the Property, (12)environmental matters of
any kind or nature whatsoever relating to the Property,(13)any development order or agreement,or
(14)any other matter or matters of any nature or kind whatsoever relating to the Property.
Each of the foregoing representations and warranties is true and correct as of the
Effective Date, and will be true and correct as of the Closing Date, and shall survive the Closing
for a period of six(6)months.
11. Covenants of Seller. Seller hereby covenants with the Buyer that between the
date of this Agreement and the Closing:
(a) Seller will not, without the Buyer's prior written consent, create by its consent
any encumbrances on the Property. For purposes of this provision the term "encumbrances"
shall mean any liens, claims, options, mortgages or other encumbrances, encroachments, rights-
of-way, leases, easements, covenants, conditions or restrictions. Furthermore, Seller shall not
market the Property or enter into any contracts, letters of intent, agreements, commitments,
options, rights of first refusal, rights of first offer, or any other rights, options or agreements to
sell the Property or any portion thereof.
(b) Seller will not file any application for any change of the present zoning
classification of the Property unless such change is requested by the Buyer in writing or called
for by this Agreement to allow the Property to be developed with the Project. Seller will
cooperate fully with the Buyer by executing consents, applications and other such documents
reasonably requested by the Buyer in connection with its efforts in developing the Property to a
condition such that building may commence.
(c) Upon Seller's receipt of actual knowledge thereof, Seller shall promptly notify
Buyer of any material change in any condition with respect to the Property or of any event or
circumstance which makes any representation or warranty of Seller under this Agreement
materially untrue or of any covenant of Seller under this Agreement which Seller will be
incapable of performing.
(d) Seller shall not enter into any Contracts or other agreement affecting the Property
or any portion thereof or the use thereof which will be binding on Buyer or the Property after
WPBDOCS 10386778 6
100391154.2 306-9905441) 11
Closing, without the prior written consent of the Buyer, which consent may be withheld in
Buyer's sole and absolute discretion.
(e) In the event that Seller receives or is served, prior to Closing, with any notices
from any governmental or quasi-governmental body or agency or from any person or entity with
respect thereto, Seller will promptly comply with them at Seller's expense.
(f) Seller shall comply with all laws, rules, regulations, and ordinances of all
governmental authorities having jurisdiction over the Property.
(g) Seller shall not enter into any lease, tenancy agreement or occupancy agreement
or other agreement affecting the Property or any portion thereof or the use thereof which will be
binding on Buyer or the Property after Closing, without the prior written consent of the Buyer,
which consent may be withheld in Buyer's sole and absolute discretion.
(h) Seller shall maintain the Property in at least the same general condition as the
Property is currently maintained by Seller and Seller shall maintain its current insurance
coverages for the Property.
(i) So long as Seller is not required to incur any cost or expense with regard thereto
(except as is otherwise required pursuant to the terms of this Agreement, including, without
limitation the requirements of Section 3 hereof), Seller shall cooperate with Buyer in performing
its due diligence with respect to the Property and in seeking any and all consents, permits or
approvals regarding the Property as Buyer may request, and Seller shall promptly join in all
applications for building permits, certificates or other agreements, and permits for sewer, water,
or other utility services, other instruments or other permits or approvals, the granting of or entry
into which, by any governmental or quasi governmental authority having jurisdiction over the
Property, is, in Buyer's reasonable opinion, necessary to permit the development, construction,
use or occupancy of the Property for the Buyer's Intended Use without violating applicable law.
12. Buyer's Representations. Buyer hereby represents and warrants to Seller, as of
the Effective Date and again as of the Closing Date,as follows:
(a) Buyer has full power and authority to enter into this Agreement and to assume
and perform all of its obligations hereunder.
(b) The execution and delivery of this Agreement and the consummation of the
transaction contemplated hereunder on the part of the Buyer do not and will not violate the
corporate or organizational documents of Buyer and will not conflict with or result in the breach of
any condition or provision, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the terms of any contract, mortgage, lien, lease,
agreement, indenture, instrument or judgment to which the Buyer is a party.
(c) No action by any federal, state, municipal or other governmental department, CRA,
board, bureau or instrumentality is necessary to make this Agreement a valid instrument binding
upon Buyer in accordance with its terms and conditions.
WPBDOCS 10386778 6
(00391154.2 306-9905441) 12
All of the representations, warranties and covenants of Buyer contained in this
Agreement shall be true and correct in all material respects and not in default at the time of
Closing,just as though they were made at such time.
13. Real Estate Commissions. Buyer and Seller represent and warrant to each other
that each has not dealt with any broker, agent or similar person in connection with this
transaction. Buyer and Seller do mutually agree to indemnify and hold harmless the other party
from and against and any all liability, loss, cost, damage and expense, including but not limited
to attorneys' fees and costs of litigation both prior to and on appeal,which either Buyer or Seller
shall ever suffer or incur because of any claim by any agent, broker or finder claiming by,
through,or under the indemnifying party, whether or not meritorious, for any fee,commission or
other compensation with respect to this Agreement or to the sale and purchase of the Property
contemplated herein. The terms of this Section shall survive Closing or the earlier termination of
this Agreement until the expiration of all statute of limitations periods applicable to any such
claims.
14. Risk of Loss and Condemnation. Serer shall bear risk of loss with respect to
the Property until the Closing has occurred. In the event of the institution against the record
owner of the Property of any proceedings, judicial, administrative or otherwise, relating to the
taking, or to a proposed taking of any portion of the Property by eminent domain, condemnation
or otherwise or if Seller shall receive any notice or knowledge that any agency or entity having
the power of eminent domain is contemplating or is seeking the taking or condemnation of the
Property, or any part thereof, or any interest therein (which in Buyer's sole opinion materially
impairs Buyer's ability to use the Property for Buyer's Intended Use), prior to Closing, or in the
event of the taking of any portion of the by eminent domain,condemnation or otherwise,prior to
Closing, then the Seller shall notify the Buyer promptly and the Buyer shall have the option, in
its sole and absolute discretion of either (a) terminating this Agreement and obtaining a full
refund of the Escrow Deposit and interest thereon; or(b) closing in accordance with the terms of
this Agreement, but at Closing the Seller shall assign to the Buyer all of its right,title and interest
in and to any net awards that have been or may be made with respect to such eminent domain
proceeding or condemnation, or give Buyer a credit against the Purchase Price equal to the
allocable portion of such award or settlement if it has previously been received by Seller. Such
election must be made by the Buyer within thirty (30) days of the notice furnished by Seller. If
Buyer fails to make an election in writing, it shall be deemed to have elected alternative(a).
15. Default.
(a) If Buyer fails to materially perform or observe any of the covenants, restrictions,
requirements and/or stipulations to be performed and/or observed by Buyer hereunder and such
failure to perform or observe is not cured within thirty(30)days after written notice thereof from
Seller to Buyer(or in the case of a default which cannot be cured in thirty (30) days, Buyer has
failed to commence curing the default within such thirty (30) day period), then, as Seller's sole
remedy, the Escrow Deposit shall be delivered by the Escrow Agent to the Seller (and Seller
shall retain all City Deposits)as liquidated and agreed upon damages;provided,that, Buyer shall
not be afforded any cure period if Buyer if fails to timely complete its purchase of the Property
on the Closing Date. The parties agree and stipulate that as of the Effective Date, the exact
amount of damages to Seller on account of Buyer's breach of this Agreement would be
WPBDOCS 10386778 6
(00391154.2 306-9905441) 13
extremely difficult to ascertain and that the Deposit constitutes a reasonable and fair
approximation of such damages and is not a penalty.
(b) If Seller fails to materially perform or observe any of the covenants, restrictions,
requirements and/or stipulations to be performed and/or observed by Seller hereunder, and such
failure to perform or observe is not cured within thirty(30)days after written notice thereof from
Buyer to Seller (except for Seller's failure to timely complete its sale of the Property on the
Closing Date, for which no notice or cure period shall be afforded and shall immediately
constitute a default), then Buyer's sole and exclusive remedy on account of Seller's default shall
be to terminate this Agreement and thereupon (a) receive a return of the Escrow Deposit
(together with all interest earned thereon) from the Escrow Agent and (b) receive a return of the
City Deposits from Seller, as well as receive from Seller payment of Buyer Costs (as defined
herein) not to exceed $100,000.00. "Buyer Costs" shall mean all actual out-of-pocket, third
party costs incurred by Buyer with regard to this transaction, including, without limitation, its
costs incurred in conducting its due diligence studies,examinations, surveys, environmental, and
other exams of the Property, consultant and engineering costs, attorneys' fees, and any and all
other expenses incurred by Buyer in pursuing the Entitlements and other development approvals
for the Property. Buyer's Costs shall be evidenced by statements submitted to Seller and Seller's
attorney and such other reasonable information requested by Seller and Seller's attorney.
Nothing contained herein shall limit any of Seller's indemnification obligations that are
specifically provided to survive termination of this Agreement and/or Closing.
16. Escrow. Any Escrow Agent receiving funds is authorized and agrees by
acceptance thereof to promptly deposit and to hold same in escrow and to disburse the same
subject to clearance thereof in accordance with terms and conditions of this Agreement but only
with the joint instructions of Buyer and Seller. Failure of clearance of funds shall not excuse
performance by the Buyer. In the event of doubt as to its duties or liabilities under the provisions
of this Agreement, the Escrow Agent may, in its sole discretion, continue to hold the monies
which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or
until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto,
or it may deposit all the monies then held pursuant to this Agreement with the Clerk of the Circuit
Court of Palm Beach County, Florida, and upon notifying all parties concerned of such action, all
liability on the part of the Escrow Agent shall fully terminate,except to the extent of accounting for
any monies theretofore delivered out of escrow. In the event of any suit between Buyer and Seller
wherein the Escrow Agent is made a party by virtue of acting as such Escrow Agent hereunder, or
in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, the
Escrow Agent shall be entitled to recover a reasonable attorney's fee and costs incurred, said fees
and costs to be charged and assessed as court cost in favor of the prevailing party. All parties agree
that the Escrow Agent shall not be liable to any party or person whomsoeverfor misdelivery to
Buyer or Seller of monies subject to this escrow, unless such misdelivery shall be due to willful
breach of this Agreement or gross negligence on the part of the Escrow Agent. Seller acknowledges
that Escrow Agent has been retained as counsel for the Buyer in this matter and other transactions
and agrees that Escrow Agent may continue to represent Buyer in this matter and any and all
present and future transactions.
WPBDOCS 10386778 6
(00391154 2 306.9905441) 14
17. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the transaction contemplated herein, and it supersedes all prior
understandings or agreements between the parties.
18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, devisees, personal representatives, successors and
permitted assigns.
19. Waiver; Modification. The failure by the Buyer or Seller to insist upon or
enforce any of their rights shall not constitute a waiver thereof, and nothing shall constitute a
waiver of the Buyer's right to insist upon strict compliance with the terms of this Agreement.
Either party may waive the benefit of any provision or condition for its benefit which is
contained in this Agreement. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach. No oral modification of this Agreement
shall be binding upon the parties and any modification must be in writing and signed by the
parties.
20. Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Florida. The venue of any litigation arising out of this Agreement
shall be Palm Beach County, Florida.
21. Headings. The paragraph headings as set forth in this Agreement are for
convenience or reference only and shall not be deemed to vary the content of this Agreement or
limit the provisions or scope of any paragraph herein.
22. Enforceability. If any provision in this Agreement shall be held to be excessively
broad, it shall be construed, by limiting and reducing it, to be enforceable to the extent
compatible with applicable law. If any provision in this Agreement shall, notwithstanding the
preceding sentence, be held illegal or unenforceable, such illegality or unenforceability shall not
affect any other provision of this Agreement.
23. Notices. Any notice, request, demand, instruction or other communication to be
given to either party, except where required by the terms of this Agreement to be delivered at the
Closing, shall be in writing and shall be sent as follows:
If to Buyer: Pulte Home Company, LLC
Attn: Brent Baker,Division President
4400 PGA Blvd, Suite 700
Palm Beach Gardens,Florida 33410
WPBDOCS 10386778 6
(03391154 2 306-9905441) 15
E-mail: brent.baker@PulteGroup.com
With a copy to: Steven R. Parson,Esq.
Shuns&Bowen, LLP
525 Okeechobee Blvd., Suite 1100
West Palm Beach,FL 33401
E-mail: sparson@shutts.com
If to Seller: City of Boynton Beach
Attn:Lori LaVerriere,City Manager
City of Boynton Beach
3301 Quantum Blvd., Suite 101
Boynton Beach,FL 33426
E-mail: LaVerriereL@bbfl.us
With a copy to: Goren,Cherof,Doody&Ezrol,P.A.
3099 East Commercial Blvd,Suite 200
Fort Lauderdale,Florida 33308
Telephone: 954-771-4500
Facsimile: 954-771-4923
Email: ddoody@gorencherof.com
Attn: Donald J.Doody,Esq.
If to Escrow Agent: Goren,Cherof,Doody&Ezrol,P.A.
3099 East Commercial Blvd,Suite 200
Fort Lauderdale,Florida 33308
Telephone: 954-771-4500
Facsimile: 954-771-4923
Email: ddoody@gorencherof.com
Attn: Donald J.Doody,Esq.
Any such notice shall be either (a) sent by overnight delivery using a nationally recognized
overnight courier, in which case notice shall be deemed delivered on the date such notice is
received by the party to whom it is addressed or such party's agent or representative, (b) sent by
personal delivery, in which case notice shall be deemed delivered upon receipt or refusal of
delivery of such notice, or (c) sent by electronic mail ("Email"), in which case notice shall be
deemed delivered upon confirmed transmission of such notice by Email. A party's address may
be changed by written notice to the other party; provided, however, that no notice of a change of
address shall be effective until actually received by the recipient thereof. Copies of notices are
for informational purposes only, and a failure to give or receive copies of any notice shall not be
deemed a failure to give notice. The attorney for a party has the authority to send and receive
notices on behalf of such party.
24. Assignment. Neither party shall assign this Agreement without the prior written
consent of the other party, which may be withheld in such party's reasonable discretion, except
that Buyer may assign its rights under this Agreement with respect to the Property, without
Seller's prior consent, to (a)an affiliated entity of Buyer in which Buyer directly or indirectly
WPBDOCS 10386778 6
{00391154.2 306-9905441) 16
has a majority ownership interest, or (b)a joint venture of Buyer with an unaffiliated
development partner, provided, however, a copy of the assignment and assumption agreement
shall be delivered to Seller prior to Closing Date, if applicable.
25. Attorneys' Fees. In the event that it becomes necessary for either party to bring
suit to enforce the terms of this Agreement, then the prevailing party shall be entitled to recover
all costs, including reasonable attorneys' fees, incurred in connection with such litigation
(including mediation, arbitration, appellate proceedings, and in post judgment collection
proceedings) against the non-prevailing party. The terms of this Section shall survive Closing or
the earlier termination of this Agreement.
26. Radon Disclosure. Pursuant to statute, Seller hereby notifies Buyer as follows:
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from your county
public health unit.
27. Effective Date. The "Effective Date" of this Agreement shall be the date upon
which the last party to sign this Agreement has executed this Agreement. Buyer and Seller shall
confirm to each other in writing the date of the Effective Date. Buyer recognizes that though it
has negotiated this Agreement with Seller's representatives and has signed it, Seller cannot
execute this Agreement until it has fully complied with the provisions of Section 2-56 of the
Seller's City Code. If the City Commission of Seller approves this Agreement in accordance
with Section 2-56 of the Seller's City Code, then the Effective Date shall be the date upon which
Seller executes this Agreement.
28. Time of the Essence. Time is of the essence with respect to each provision of
this Agreement. Provided however, if the date for performance is on a Saturday, Sunday or
federal holiday,the date for performance shall be extended to the next business day.
29 . No Third Party Beneficiaries. This Agreement is an agreement between Seller
and Buyer only and no third parties shall be entitled to assert any rights as third party
beneficiaries hereunder.
30. Counterpart Execution. This Agreement may be executed in two or more
counterparts, all of which together shall constitute but one and the same Agreement. To
facilitate the execution and delivery hereof, the parties may exchange executed counterparts
hereof, or of any amendment hereto, in Portable Document Format(PDF) exchanged via E-mail,
which transmission shall be deemed delivery of an original executed counterpart by such party.
31. Recordation. At the election of Buyer, and at Buyer's sole cost, this Agreement
or any memorandum, summary, or other evidence hereof may be recorded in any public records
prior to the consummation of the Closing.
32. Marketing the Property. Seller hereby agrees that as of the Effective Date and
provided that this Agreement has not terminated, the Seller may not continue marketing the
WPBDOCS 10386778 6
(00391154.2 306-9905441) 17
Property or the membership interest of the Seller and may not enter into contracts for the sale of
the Property or any contracts for the sale of the membership interest of the Seller.
33. Survival. Except as otherwise provided herein, the provisions of this Agreement
shall not survive the Closing and shall be merged into the conveyance documents executed and
delivered at Closing.
34. Further Assurances. The parties agree to cooperate in good faith to execute and
deliver such documents and instruments as are necessary, and/or reasonably requested by the
parties, in order to consummate the transactions contemplated by this Agreement. This Section
expressly survives the Closing.
35. JURY TRIAL WAIVER. SELLER AND BUYER EACH KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT WHICH EITHER OF
THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION OR
LEGAL PROCEEDING BASED UPON OR ARISING DIRECTLY, INDIRECTLY OR
OTHERWISE IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS
AGREEMENT INCLUDING, BY WAY OF EXAMPLE BUT NOT LIMITATION, ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, VERBAL OR WRITTEN
STATEMENTS OR ACTS OR OMISSIONS OF EITHER PARTY WHICH IN ANY WAY
RELATE TO THIS AGREEMENT. SELLER AND BUYER HAVE SPECIFICALLY
DISCUSSED AND NEGOTIATED FOR THIS WAIVER AND UNDERSTAND THE LEGAL
CONSEQUENCES OF IT.
36. Approval by Buyer's Asset Management Committee. The terms and
provisions of this Agreement are subject to the review and approval of Buyer's Asset
Management Committee (the"AMC"). Buyer will request that the approval by the AMC of the
terms and provisions of this Agreement be provided within the Investigation Period, but nothing
herein shall be construed as a requirement of Buyer to obtain such approval from the AMC. In
the event that the approval of the AMC is not obtained within the Investigation Period, then
Buyer shall promptly notify Seller and Escrow Agent of such event within the Investigation
Period, in which case this Agreement shall be terminated and both parties shall be released from
all further obligations under this Agreement, except for indemnification and other provisions that
survive termination.
37. No Moratoria. In addition to any other conditions to Closing contained in this
Agreement, Buyer's obligation to close this transaction shall be conditioned on there being no
sewer, water, building, or other moratoria in effect as of the Closing Date which would prevent
or interfere with the development of the Property for Buyer's Intended Use and the occupancy of
the any residential units by end-users.
[Signatures on Next Page]
WPBDOCS 10386778 6 O
1003911542306-9905441) 18
The parties have executed this Agreement as of the day and year last written below.
BUYER:
PULTE HOME COMPANY,LLC,a Michigan
limited liability company
By:
Name: R.EW/M/
Title: VP-L NN D AC-civtsvrt ON
Date: AoG,us r It ,2020
SELLER:
CITY OF BOYNTON BEACH, a Florida
municipal corporation
By:
Name:
Title:
Date: ,2020
APP T• M:
CITY ATTORNEY
WPBDOCS 10386778 6
(00391154.2 3069905111) 19
ACKNOWLEDGEMENT OF ESCROW AGENT
By signing below, the undersigned agrees to act as Escrow Agent in accordance with the
terms of this Agreement for the transaction contemplated by this Agreement.
ESCROW AGENT:
GOREN,CHEROF,DOODY&EZROL,P.A.,a
Florida professional associat lon
(7
11
By:
Name: /1414 A at1 OVA �r
Title: ch,4,10.144"
14Z✓
WPBDOCS 10386778 6
100391154.2 306-99054411 20
EXHIBIT"A"
Legal Description of the Land
(SUBJECT TO VERIFICATION BY SURVEY)
PARCEL CONTROL NUMBERS: 00-43-45-19-00-000-3010;00-43-45-19-03-006-0080; 00-43-
45-19-04-006-0260 and 00-43-45-19-040-008-0200
Lots 20-25 and 50-56, inclusive,Block 8 of West Boynton Plat 2-C,as recorded in Plat Book 15,
Page 14,of the Public Records of Palm Beach County,Florida.
Together with:
Lots 8 through 31, inclusive,Block 6,Lots 8-31,inclusive,Block 7,Lots 8-31, inclusive, Block 8,
Lots 8-31, inclusive,Block 9,Lots 8-31, inclusive,Block 10,all of West Boynton Plat 2-B,as
recorded in Plat Book 15,Page 13,of the Public Records of Palm Beach County,Florida.
Together with:
Lots 26-49, inclusive,Block 6,Lots 26-49, inclusive,Block 7,Lots 26-49,inclusive,Block 8,Lots
26-49, inclusive,Block 9,all of West Boynton Plat 2-C,as recorded in Plat Book 15,Page 14,of
the Public Records of Palm Beach County,Florida.
Together with:
A portion of Genevra Avenue, Harlowe Avenue,Ivanhoe Avenue,Kitely Avenue,Lothair Avenue
and Marlow Avenue lying West of Nickels Blvd.and adjacent to Block 6, 7, 8,9 and 10,of West
Boynton Plat 2-B recorded in Plat Book 15,Page 13,of the Public Records of Palm Beach County,
Florida.
WPBDOCS 10386778 6
(00391154.2 306-9905441) 21
EXHIBIT"B"
Form of Special Warranty Deed
This Instrument Prepared By:
Parcel Control Nos.:
00-43-45-19-00-000-3010;00-43-45-19-03-006-0080;
00-43-45-19-04-006-0260;and 00-43-45-19-040-008-0020
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, made and entered into as of the day of
, 202_, by the CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal
corporation, whose address is (hereinafter referred to as
"Grantor"), and PULTE HOME COMPANY, LLC, a Michigan limited liability company,
whose address is 4400 PGA Blvd, Suite 700, Palm Beach Gardens, Florida 33410 (hereinafter
referred to as"Grantee").
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and other good
and valuable consideration, to it in hand paid, the receipt whereof is hereby acknowledged, by
these presents does grant, bargain, sell, alien, remise, release, convey and confirm unto the
Grantee, its successors and assigns forever,all those certain parcels of land lying and being in the
County of Palm Beach, State of Florida, as more particularly described in the Exhibit"A"
attached hereto and by this reference made a part hereof(the"Property").
TOGETHER WITH all the improvements, tenements, hereditaments, and
appurtenances thereto belonging or in anywise appertaining and together with all rights and
easements of record.
SUBJECT TO taxes for the year 202 , and subsequent years, and applicable zoning
ordinances and those matters set forth on Exhibit "B" attached hereto and by this reference
made a part hereof; provided, however, that nothing herein shall be deemed to reimpose any of
such matters.
TO HAVE AND TO HOLD the same in fee simple forever.
And the Grantor hereby covenants with Grantee that Grantor, at the time of delivery of
this deed, is lawfully seized of the Property in fee simple,that Grantor has good right,full power,
and lawful authority to grant, bargain, sell, and convey the same, and that Grantor hereby
warrants the title to the Property and will defend the same against the lawful claims of all
persons whomsoever, claiming by,through or under the Grantor,but against no others.
WPRDOCS 10386778 6
(00391154.2 306.99054{1) 22
IN WITNESS WHEREOF, the Grantor has caused these presents to be duly executed in
its name,as of the date first set forth above.
Signed, sealed and delivered GRANTOR:
in the presence of:
CITY OF BOYNTON BEACH, FLORIDA, a
Florida municipal corporation,
By:
Printed Name: ,its
Printed Name:
STATE OF FLORIDA )
) ss:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me by means of O physical
presence or O online notarization, this day of , 202 , by
, as of CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, on behalf of said corporation. She/He is personally
known to me or has produced as identification.
Printed Name:
NOTARY PUBLIC
State of Florida at Large
(Notarial Seal) My Commission Expires:
WPBDOCS 10386778 4
(00391154.2 306-9905441) 23
EXHIBIT"C"
Form of General Assignment
THIS GENERAL ASSIGNMENT (the "Assignment") is made as of this _ day of
, 202_, by the CITY OF BOYNTON BEACH, FLORIDA, a Florida
municipal corporation ("Assignor"), in favor of PULTE HOME COMPANY, LLC, a
Michigan limited liability company("Assignee").
WITNESSETH:
WHEREAS, Assignor and Assignee are parties to that certain Agreement for Purchase
and Sale dated as of (the "Agreement"), which provides, among other
things, for the sale by Assignor to Assignee of that certain tract of Property located in Palm
Beach County,Florida, as more particularly described on Exhibit "A" attached hereto and made
part hereof(the "Property"); and
WHEREAS, the Agreement requires Assignor to assign to Assignee all of Assignor's
right, title and interest in all Intangible Rights, Development Rights, and Plans (as such terms are
defined below)owned by Assignor.
THEREFORE, in consideration of the foregoing and the agreements and covenants
herein set forth, together with the sum of Ten Dollars ($10.00) and other good and valuable
consideration this day paid and delivered by Assignee to Assignor, the receipt and sufficiency of
all of which are hereby acknowledged by Assignor, Assignor does hereby ASSIGN,
TRANSFER, CONVEY, SET OVER and DELIVER unto Assignee, to the extent assignable, all
of Assignor's right, title and interest in and to the following (collectively, the "Assigned
Properties"):
(a) any and all building, zoning and other certificates, licenses, certificates of
compliance,prepaid impact fees, impact fee credits or similar charges which service or pertain in
any manner to the Property,utility prepayments or reservation fees, consents, building inspection
approvals granted by any governmental entity running to the benefit of the Property, Assignor
and/or Assignor's predecessors in interest and any covenants, conditions and restrictions,
reciprocal easement agreements, access easement agreements and other common or planned
development agreements or documents necessary in connection with the Property, and all other
intangible right or property relating to the ownership or development of the Property
(collectively,the "Intangible Rights"); and
(b) all permits, governmental approvals,utility rights and utility capacity,traffic trips,
and all other development rights and similar rights related to the Property, whether granted by
governmental authorities or private persons, for the development of single-family
residential units on the Property (collectively,the"Development Rights"); and
(c) to the extent assignable, all plans, specifications, site plans, engineering plans,
architectural drawings, architectural renderings and similar items prepared for Assignor related
WPBDOCS 10386778 4
(00391154.2 306-9905441) 24
to structures, parking facilities, streets, drainage or utility facilities or other improvements that
are to be constructed on the Property (collectively, the"Plans").
TO HAVE AND TO HOLD all and singular the Assigned Properties unto Assignee, and
Assignee's successors, and assigns forever, and Assignor does hereby warrant and shall forever
defend all and singular the Assigned Properties unto Assignee, and Assignee's successors and
assigns, against every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by,through or under Assignor.
Assignor warrants to Assignee that it holds and has full right and authority to transfer the
Assigned Properties to Assignee without the consent of any third party, and that Assignor has not
previously assigned or pledged any of the Assigned Properties.
Assignor hereby agrees to indemnify and hold harmless Assignee from and against any
and all loss, liability, cost, claim, damage or expense incurred to enforce any rights and/or secure
any remedies under this Assignment resulting by reason of the failure of Assignor to perform its
obligations arising under the Assigned Properties prior to date hereof and/or Assignor's failure to
perform its obligations under this Assignment.
All of the covenants, terms and conditions set forth herein shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors and assigns. This
Assignment may only be modified, altered, amended, or terminated by the written agreement of
Assignor and Assignee. If any term,covenant or condition of this Assignment shall be held to be
invalid, illegal or unenforceable in any respect, this Assignment shall be construed without such
provision. This Assignment shall be governed by and construed under the laws of the state in
which the Property is located without regard to principles of conflicts of law.
[Signature Page Follows]
WPBDOCS 10386778 4 G
(003911542306-9905441) 25
IN WITNESS WHEREOF, Assignee has executed this Agreement as of the date below-
written.
WITNESSES: ASSIGNOR:
CITY OF BOYNTON BEACH, FLORIDA,
a Florida municipal corporation
Printed Name:
By:
Name:
Printed Name: Title:
Date: ,202
STATE OF FLORIDA )
) ss:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me by means of ❑ physical
presence or D online notarization, this day of , 202_ by
, the CITY OF BOYNTON BEACH, FLORIDA, a
Florida municipal corporation. She/He is personally known to me or produced
as identification.
Notary Public, State of Florida
Name:
My Commission Expires:
WPBDOCS 10386778 4
(003911542 306-9905441) 26