STANDARD FLORIDA LAND PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (“Agreement”) is made and entered into as of the Effective Date (as hereinafter defined in paragraph 7 (a)(i)) by and between HOUND LAND COMPANY, a Florida joint venture (the “Seller”), and PLATINUM CORPORATION, a Florida corporation, (the “Purchaser” or “Buyer”). In consideration of the mutual covenants and promises herein set forth, the parties agree as follows:
1. Purchase and Sale. Seller agrees to sell to Purchaser and Purchaser agrees to purchase from Seller that certain parcel of property located in Palm Beach County, Florida, described as Parcel 101(the Realty”) of Hound Properties Plat, according to the Plat thereof, as recorded in Plat Book 83, at Pages 65-67, inclusive, of the Public Records of Palm Beach County, Florida (the “Plat”), containing approximately 1.1155 +/- gross acres, together with Seller’s right, title and interest in the following property and rights in so far as they pertain to the Realty:
(a) All easements, privileges, rights-of-way, riparian and other water rights, lands underlying any adjacent streets or roads, and appurtenances pertaining to or accruing to the benefit of the Realty.
(b) All rights under those certain zoning approvals or permits enumerated on Exhibit “A” attached to this Agreement and made a part hereof and any other permits related to the Realty (the “Permits”).
(c) Any other licenses, permits, authorizations, approvals and contract rights pertaining to ownership and/or operation of the Realty;
The Realty and all of the other property and rights described in this paragraph 1 are hereinafter collectively called the “Property”.
2. Purchase Price. The purchase price to be paid by Purchaser to Seller for the Property is ——————————————- (the “Purchase Price”). This is an all cash purchase and the Buyer’s obligation to close is not subject to or contingent upon Buyer obtaining any financing.
(a) To secure the performance by Purchaser of its obligations under this Agreement: (1) within one (1) business day after the Effective Date, Purchaser shall deliver to Title Insurance ———————————, as Escrow Agent (the “Escrow Agent”), an initial cash deposit in the amount of Thirty Seven Thousand Five Hundred and No/100 Dollars ($37,500.00) (the “Initial Deposit”). The Deposit shall be placed in an interest bearing account, with interest to follow the Deposit. If the Buyer does not terminate the Agreement prior to the end of the ninety (90) day Inspection Period (as hereinafter defined), the Buyer shall be required to make a second deposit of Thirty Seven Thousand Five Hundred and No/100 Dollars ($37,500.00) (the “Second Deposit”). The Initial Deposit and Second Deposit are hereinafter sometimes jointly referred to as the “Deposit”. After expiration of the Inspection Period, the Deposit shall be non-refundable and “at risk”, except for a default of Seller not timely cured within ten (10) days after written notice from Buyer to Seller and the satisfaction of all conditions precedent to closing set forth in Paragraph 7 (b), (c), and (d) hereof. At Closing, the Deposit shall be credited against the Purchase Price.
(b) The Closing shall take place on or before July 17, 2000 as set forth in paragraph 14 hereof. Within three (3) business days prior to the date of closing, the Escrow Agent shall transfer the Deposit to ————————————–, in escrow, as successor Escrow Agent hereunder, who shall hold such funds under the same terms and conditions as set forth in the escrow agreement of the Fund, a copy of which is attached hereto (“Escrow Agreement), except that such funds shall be in a non-interest bearing account, but which will be applied toward the Purchase Price at Closing.
(c) The Escrow Agent shall invest the cash Deposit in an interest bearing account in a federally insured commercial bank or savings and loan association doing business in Palm Beach County or Broward, Florida. All interest accrued or earned thereon shall be paid or credited to Purchaser except in the event of a default by Purchaser, in which event the interest shall be disbursed to Seller, together with the Deposit, as mutually agreed to liquidated damages, in accordance with this Agreement, including paragraph 10 below.
4. Terms of Payment. The Purchase Price shall be paid by Purchaser to Seller at closing as follows:
$xx,500.00 being the Initial Deposit referred to in paragraph 3 of this Agreement; and
$xx,500.00 on or before the end of the ninety (90) day Inspection Period, being the Second Deposit referred to in paragraph 3 of this Agreement, and
$xxx, 000.00 approximately in current U.S. funds at time of Closing, subject to prorations and adjustments as hereinafter provided, to be paid by wire transfer of Federal Funds under written instructions to be given to Purchaser by Seller.
(a) Within thirty (30) days following the Effective Date, Seller shall deliver to Purchaser a commitment for an Owner’s Form B marketability title insurance policy issued by Seller’s attorney as agent for Attorneys’ Title Insurance Fund, Inc. (“Fund”), (the “Title Company”) naming Purchaser as the proposed insured and in the amount of the Purchase Price (the “Commitment”), together with legible copies of all matters reflected as exceptions therein. The Commitment shall show Seller to be vested with good, marketable and insurable fee simple title to the Realty, free and clear of all liens, encumbrances and other matters, except only the following (the “Permitted Exceptions”):
(1) Ad valorem real estate taxes for the year of closing and subsequent years ;
(2) Matters set forth herein and on Exhibit “B” attached hereto and made a part hereof; (Buyer has the right to object to any matter on Exhibit “B” within 30 days after delivery of the title commitment and survey and shall have the right to terminate this Agreement within the Inspection Period (as defined below), however, the Seller shall not be required to make any title changes with respect to any matters on Exhibit “B”); at or before closing, Seller shall bond off or discharge any liens or encumbrances of record (other than the Permitted Exceptions) which can be removed by the payment of a liquidated amount, and
(3) Such other matters as are not objected to in writing by Purchaser or are approved by Purchaser in writing.
(b) Seller agrees to provide Buyer with a boundary survey ( the “Survey”) of the Realty within thirty (30) days after the Effective Date, showing the location and legal description of the Realty, meeting the minimum technical standards of the Florida Board of Land Surveyors and the State of Florida Department of Professional regulation, certified to Purchaser, Seller and the Title Company, and prepared within 60 days of the Effective Date of this Agreement and with topo information showing the elevation. The Survey shall also show and certify: (i) the location of all improvements, if any, (ii) the location and centerline of all roadways adjacent to the Realty, (iii) the location of all matters reflected on the Commitment to the extent it is feasible to do so, and (iv) the amount of acreage contained within the Realty. The costs of the survey shall be borne by the Seller. If the Buyer terminates this Agreement within the Due Diligence Period, the cost to Seller of the survey to be provided to Buyer shall be deducted from the Deposits, notwithstanding anything herein to the contrary. In the event Buyer requires an ALTA survey, Buyer may either make arrangements to obtain such a survey from Seller’s surveyor at Buyer’s sole cost and expense and without any adjustment in the Purchase Price, or Buyer may make arrangements for such survey with any other surveyor at Buyer’s sole cost and without any adjustment in the Purchase Price.
(c) Title shall be deemed good, marketable and insurable if the Commitment will result in the issuance of a marketability policy at the minimum promulgated risk rate premium without any exceptions, standard or otherwise (subject to the parties executing and delivering appropriate affidavits to permit same), other than the Permitted Exceptions, provided that Buyer has the right to review and approve the Permitted Exceptions prior to expiration of 30 days following delivery of the Commitment and Survey, and further provided that Seller shall not be under any obligation to take any action to modify or remove any such items, except required by paragraph 5 (a) (2) hereof. If Purchaser finds title to be unmarketable and not in conformity with requirements of this Agreement, Purchaser shall, no later than ten (10) days after delivery of the Commitment and Survey, notify Seller in writing specifying the defect(s), if any, provided that if Purchaser fails to give seller written notice of defects within such time, the defects shown in the Commitment and/or Survey shall be deemed to be Permitted Exceptions. If Purchaser has given Seller timely written notice of defect(s) and the defect(s) render the title other than as required by this Agreement, Seller shall use commercially reasonable efforts to cause such defects to be cured within sixty (60) days after Seller’s receipt of Buyer’s written notice of title objections. In the event that Seller does not eliminate any title defects within the time specified herein for such purpose, Purchaser shall have the option of either: (i) closing and accepting the title “as is”, without reduction in the Purchase Price, or (ii) canceling this Agreement by written notice to the Seller and the Escrow Agent, in which event the Escrow Agent shall return the Deposit and all interest earned thereon to Purchaser, whereupon both parties shall be released from all further obligations under this Agreement, except those obligations set forth in any provisions of this Agreement stated herein to survive the Closing or termination of this Agreement, unless such defects were caused by Seller’s willful act or willful omission, in which event, Seller shall remain liable to Purchaser for damages caused thereby as provided for herein.
6. Property Owners Association. Seller has advised Purchaser that all the land
within the Plat is subject to a recorded Declaration of Covenants, Conditions and Restrictions (included as a Permitted Exception) and that such declaration is governed by a not for profit corporation, the directors of which are appointed by the Seller. The Realty is subject to annual assessments, which if not paid, may result in a lien placed on the Realty, with enforcement rights as set forth in the said declaration.
7. Definitions and Conditions Precedent.
(a) The terms defined below shall have the meanings ascribed to them in this paragraph when used in this Agreement:
(i) “Effective Date” shall mean the date that this Agreement has been signed by the last of both parties to sign or January ———–, whichever is sooner to occur.
(ii) “Inspection Period” shall mean the ninety (90) day period immediately following the Effective Date, during which Purchaser may examine the Property and any other matter which Purchaser may wish to investigate and decide, in its sole discretion, whether or not to purchase the Property. In the event Purchaser does not wish to purchase the Property for any reason whatsoever, or for no reason, the Purchaser shall have the right to give written notice of same to the Seller and Escrow Agent by 5:00 PM on or before the last day of the Inspection Period, in which event this Agreement shall be cancelled, the Purchaser shall receive a return of the Deposit and all interest thereon, and all the materials and information delivered to Purchaser by Seller relating to the Property shall be returned by Purchaser to Seller and neither party shall have any further rights or obligations to the other as a result of or relating to this Agreement, except for any provisions which are stated herein to survive termination of this Agreement or the Closing. If the Purchaser does not exercise its right to terminate the Agreement on or before expiration of the Inspection Period, the Deposit shall no longer be refundable and shall be “at risk”, non-refundable, except for a default by Seller not timely cured after written notice from Buyer and satisfaction of the conditions precedent in paragraph 7 (b)(c) and (d).
(b) Purchaser’s obligation to close this transaction is not subject to any conditions precedent except the following conditions precedent (i) delivery of title as required by this Agreement; (ii) the truth of Seller’s representations and warranties in this Agreement; (iii) that there shall be no suit, action, proceeding pending, or threatened, to the knowledge of Seller, which affects the Property or the Buyer’s ability to use the Property consistent with the permits and contracts; approvals set forth on Exhibit “A” hereof and Buyer’s contemplated Improvements as hereinafter defined; (iv) on the date of Closing, no moratorium or proceeding shall be pending affecting the development of the Realty or the availability at regular rates and connection fees of the ——————- for sewer, water, electric, telephone service for the Realty; (v) that the permits and approval set forth on Exhibit “A” hereof shall be in good standing; (vi) that traffic concurrency compliance for the Realty be in effect; and (vii) no violations of law exist in any material respect concerning the Property.
(c) That the Realty has been filled to grade 21’ MSL with suitable fill material, not containing muck, and compacted at 95% of modified Proctor maximum dry density, able to obtain an allowable bearing pressure of 3,000 psf, there shall be water and sewer service lines available at the boundary line to the Realty.
(d) From the Effective Date to the Closing Date, Seller shall not do, suffer or permit, or agree to do, any of the following that will adversely affect the Property as of the Closing Date:
(i) enter into any transaction in respect to or affecting the Property, or
(ii) sell, encumber or grant any interest in the Property, except if it pertains to other realty owned by Seller and does not diminish the right of Buyer to use the Property for the uses permitted in this Agreement.
8. Seller’s Representations. Seller represents and warrants the following to Purchaser, to the best of Seller’s knowledge, as of the Effective Date and as of Closing:
(a) That Parcel 101is zoned and has comp plan approval for construction of 4,000 square feet of commercial space, consistent with Exhibits “A” and “B” hereof and as limited by this Agreement to not more than one (1) fast food restaurant. The Realty shall not be used for or as: (i) a gas station, car wash, convenience store or food mart; or (ii) bank. Seller has all of the real property within the Plat approved for development of approximately 328,000 square feet of commercial space, of which Seller is allocating 4,000 square feet from its overall permitted development of commercial space to Parcel 9. Except for the sale of Parcels ———————- (which are closed) and as otherwise disclosed in this Agreement, Seller has not entered into any contracts, arrangement, license, concessions easements, or other agreements, including, without limitation, service arrangements and employment agreements, either recorded or unrecorded, written or oral, affecting the Property, or any portion thereof or the use thereof, other than as stated in this Agreement or on Exhibit “B” attached hereto and made a part hereof. Seller shall not make any adverse change in the Permits and Contracts which affect the approvals listed on Exhibit “A” hereof without obtaining written consent of Buyer, which consent shall not be unreasonably withheld, delayed or conditioned. For the purpose of this paragraph, the term “adverse” is defined as any change which would prohibit or unreasonably limit the use of the Property for the Intended Purpose, as defined in paragraph 9 hereof and/or which would materially increase the cost of development of the Realty. None of the foregoing restricts use of the Realty for use as hamburger fast food restaurant, in accordance with the Development Order and MUPD.
(b) Seller has no notice or knowledge of: (i) any pending improvement liens to be made by any governmental authority with respect to the Realty; (ii) any violations of zoning ordinances, environmental laws or statutes or other governmental regulations with respect to the Realty; (iii) any pending or threatened lawsuits with respect to the Seller or the Property; (iv) any pending or threatened condemnation or similar proceedings with respect to the Realty; or (v) any defects or inadequacies in the Realty which would adversely affect the insurability of the Realty or increase the cost of development the Realty for the Intended Purpose.
(c) Seller is vested with good, marketable and insurable fee simple title to the Realty.
(d) Seller shall comply, prior to Closing, with all laws, rules, regulations, and ordinances of all governmental authorities having jurisdiction over the Property. Seller shall be responsible for and shall promptly pay all amounts owed for labor, materials supplied, services rendered and/or other bills or amounts related to Seller and Seller’s ownership and/or operation of the Property at or prior to Closing.
(e) Seller is a joint venture duly organized, validly existing and in good standing under the laws of the State of Florida. The execution and delivery and performance of this Agreement by Seller have been duly authorized and no consent of any other person or entity to such execution, delivery and performance is required to render this document a valid and binding instrument enforceable against Seller in accordance with its terms. Neither the execution of this Agreement or the consummation of the transactions contemplated hereby will: (i) result in a breach or default under any agreement to which Seller is a party or by which the Property is bound, or (ii) violate any restrictions to which Seller is subject.
(f) Seller is not a “foreign person” within the meaning of the United States tax laws and to which reference is made in Internal Revenue Code Section 1445(b)(2). At Closing, Seller shall deliver to Purchaser an affidavit to such effect, and also stating Seller’s employer identification number and the state within the United States under which Seller was organized and exists. Seller acknowledges and agrees that Purchaser shall be entitled to fully comply with Internal Revenue Code Section 1445 and all related sections and regulations, as the same may be modified and amended from time to time, and Seller shall act in accordance with all reasonable requirements of Purchaser to effect such full compliance by Purchaser.
(g) There are no leases or other occupancy agreements, either written or oral, which affect the Property and Seller has exclusive possession of the Property.
(h) To the best of Seller’s knowledge, there has not been and there is not now: (i) any Hazardous Substance (as hereinafter defined) present on the Realty, (ii) any present or past generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance on the Realty in violation of any applicable law, rule or regulation, or (iii) any failure to comply with any applicable local, state or federal environmental laws, regulations, rules, ordinances, or administrative or judicial orders relating to the generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance on the Realty. Seller has not received any notice from any governmental authority or private party regarding the presence of any Hazardous Substance, any present or past generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance or any failure to comply with any applicable local, state or federal environmental laws, regulations, rules, ordinances or administrative or judicial orders relating to the generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance. As used herein, the term “Hazardous Substance” means any substance, material, waste, gas or particulate matter which is regulated by any local governmental authority, the State of Florida, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a contaminant,” “pollutant,” “hazardous waste,” or “restricted hazardous waste” under any provision of Florida law, (ii) petroleum, (iii) asbestos, (iv) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1317), (vii) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation & Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C., Section 6903), or (viii) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C., Section 9601).
(i) Seller shall not object to or take any action or urge any other person or entity to take any position in opposition to any future development activities of the Buyer or its buyers with respect to the Realty, provided such development activities are consistent with the current MUPD zoning.
The provisions of this paragraph shall survive the Closing for a period of one (1) year thereafter. Seller shall give written notice to Buyer if any of Seller’s representations and warranties are untrue at any time before closing and shall reaffirm the truth of same at Closing.
9. Purchaser’s Representations. Purchaser represents and warrants the following to Seller:
(a) Purchaser is a Florida corporation, duly organized, validly existing and in good standing under the laws of such state. The execution and delivery and performance of this Agreement by Purchaser has been duly authorized and no consent of any other person or entity to such execution, delivery and performance is required to render this document a valid and binding instrument enforceable against the Purchaser in accordance with its terms.
(b) Neither the execution of this Agreement or the consummation of the transactions contemplated hereby will: (i) result in a breach or default under any agreement to which Purchaser is a party, or (ii) violate any restrictions to which Purchaser is subject.
(c) That Buyer shall not object to or take any action or urge any other person or entity to take any position in opposition to any future development activities of the Seller or its buyers with respect to any other Parcels of land within the Plat, provided such development activities are consistent with the current MUPD zoning. Buyer hereby agrees that it will not take any position, directly or indirectly, in opposition to future development activities of any other Parcels of land within the Plat so long as such future development activities are consistent with the current Multiple Use Planned Development (“MUPD”) zoning for such property, as set forth on Exhibit “C” of the Settlement Agreement in case —————————- (DRC: zoning). The provisions of this paragraph include Buyer and its successors and permitted assigns not making any written or verbal objections to any governmental entity or subdivision thereof in any workshop or public forum relating to any application, request or petition or other matter being advanced by Seller or its buyers as to any other Parcels within the Plat.
(d) The Buyer and its successors and permitted assigns shall use the Realty only for the purposes permitted by the existing approvals and permits, and related facilities and as limited by this Agreement (the “Intended Purpose”). The Intended Purpose shall consist of a fast food hamburger restaurant or any other use now permitted by the existing “MUPD” and Development Order, the documents listed on Exhibit “A” hereof, but limited to the matters set forth on Exhibit “B” and as follows: (i) up to 4,000 square feet of commercial space; (ii) no financial institution; (iii) no gas stations, food marts or car washes; (iv) no banks; (v) no barbecue restaurant as a sit-down restaurant with visitor/waitress service and/or drive-thru window service.
(b) The Purchaser shall have the obligation to provide for the perpetual landscape and landscape irrigation maintenance of all buffer areas between the driving surfaces of any and all road rights of way, now existing or hereafter created, contiguous to the Realty, including landscape maintenance. The land to be maintained by Buyer under this provision is any land contiguous to the Realty within the adjacent right of way of Okeechobee Boulevard and Hound Trail Road South. This obligation to provide maintenance to land and landscaping on land off-site, but contiguous to the Realty, shall be a covenant running with the land and shall be documented in written form mutually acceptable to the parties in their reasonable judgment at Closing and be recorded among the Public Records of Palm Beach County, Florida and shall be part of the Permitted Exceptions.
(e) In the event not all of the 4,000 square feet of commercial space is used in connection with initial construction on the Realty when a C.O. is issued for improvements to be constructed on the Realty, any such unused allocation of commercial space shall automatically and without the need for separate documentation revert to Seller and be deemed to be owned by Seller, without any payment or compensation to Buyer. The Purchaser shall cooperate with Seller in connection with any documentation hereafter requested by Seller to confirm the provisions of this paragraph, without cost or expense to either party.
(f) Buyer acknowledges that it has been advised by the Seller that all signage and landscape matters in development of the Realty must be submitted to the Village of Royal Palm Beach (“Village”) for consent and approval by the Village prior to such construction and implementation.
All provisions of this paragraph 9 shall survive the Closing.
10. Default Provisions.
(a) Any breach by Purchaser of any of its duties and obligations hereunder prior to Closing, including, but not limited to the following, shall be a default by Purchaser hereunder: (i) the failure or refusal to make any payment of a Deposit as and when due (unless Buyer shall have previously terminated this Agreement in accordance with Buyer’s right hereunder), (ii) any failure or refusal to close this transaction in accordance with this Agreement, (iii) making an assignment prohibited under this Agreement, (iv) the filing for any relief by Purchaser under bankruptcy laws or the insolvency of Purchaser; and (v) failing to discharge or bond off any liens on the Realty or other land owned by Seller, caused by or arising from work performed by or other actions of Purchaser or its agents, in connection with the Realty; and any other failure of Purchaser to comply with its duties, obligations, covenants and representations and warranties in this Agreement.
(1) In the event of any such default by Purchaser, the parties agree that the Seller shall be entitled to terminate this Agreement by written notice to Purchaser and to liquidated damages as stated herein, in which event the Escrow Agent shall, upon demand in writing from Seller, pay to Seller, and Seller shall accept, the Deposit, plus interest on the Deposit. Except as provided herein for certain costs and expenses to be the responsibility of Purchaser over and above the Deposit (including, but not limited to costs related to Purchaser permitting any liens to be placed on the Realty as a result of Purchaser’s activities or those of its contractors or agents, and any damage caused to the Realty or claims made for brokers commissions or fees by persons claiming by or through the Purchaser), such payment of the Deposit to Seller shall be deemed to be agreed to and liquidated damages and not a penalty, for the breach by Purchaser and shall, except as stated in this Agreement, be Seller’s sole and exclusive remedy for default by Purchaser, as actual damages would be difficult or impossible to determine. The parties agree that such amount is fair and reasonable. Upon payment of such funds to Seller the parties shall be relieved of all further obligation hereunder, except those obligations stated herein to survive the Closing or termination of this Agreement.
(2) In connection with any default by Purchaser of any of its obligations after closing, the Seller shall be entitled to any and all remedies available at law or in equity.
(b) In the event of a default by Seller under this Agreement prior to closing, Purchaser, at its option and exclusive remedy, shall have the right to: (i) receive the return of its Deposit with all interest earned thereon, if any, whereupon the parties shall be released from all further obligations under this Agreement, except those provision set forth herein to survive Closing or termination or, (ii) seek specific performance of Seller’s obligations hereunder, but excluding monetary damages.
(1) In connection with any default by Seller of any of its obligations after closing, the Buyer shall be entitled to any and all remedies available at law or in equity.
(c) Notwithstanding the foregoing, in the event of a default by either party of any obligations after closing which specifically are stated herein to survive the Closing, the non-defaulting party shall be entitled to seek any redress permitted by this Agreement or available at law or in equity.
(d) The provisions of this paragraph 10 shall survive the Closing and any termination of this Agreement.
11. Prorations. Real estate taxes and assessments (whether or not actually collected) and all other proratable items shall be prorated as of the date of Closing, using the maximum discount permitted. The Purchaser shall have the day of closing for proration purposes. In the event the taxes for the year of Closing are unknown, the tax proration will be based on the taxes for the prior year with maximum discount, and at the request of either party, the taxes for the year of Closing shall be reprorated and adjusted when the tax bill for such year is received and the actual amount of taxes is known. The provisions of this paragraph shall survive the Closing.
12. Improvement Liens. Certified, confirmed or ratified liens for governmental improvements assessed and payable prior to Closing, if any, shall be paid in full by Seller, and pending liens for governmental improvements payable after the date of Closing shall be assumed and paid for by the Purchaser.
13. Closing Costs. The parties shall bear the following costs:
(a) The Purchaser shall be responsible for payment of the following closing costs: (i) the cost of recording the deed of conveyance; (ii) any and all costs and expenses of architectural, engineering and other inspection and feasibility studies and reports incident to Purchaser’s inspections, (iii) the costs of Purchaser’s attorneys fees; (iv) any costs or expenses related to any financing or related charges of Purchaser; (v) one-half of the documentary stamp taxes on the deed of conveyance; (vi) the incremental cost of having Seller’s surveyor provide ALTA information on the Survey, or if Purchaser elects to have the survey performed by a surveyor of its choice, the total cost of the Survey. If Purchaser terminates the Agreement during the Inspection Period, the Escrow Agent shall be entitled to deduct the cost of the boundary survey prepared by Seller’s surveyor and pay the Seller such amount, with the balance being paid to the Purchaser.
(b) The Seller shall be responsible for payment of the following: (i) the cost of one-half of the documentary stamps on the deed of conveyance and the cost of obtaining any title insurance commitment, update or report on the Realty, and the premiums and any other related fees and costs for any owner’s title insurance policy, update and/or report, (ii) the cost of recording any corrective instrument or document to deliver title as required by this Agreement; (iii) the costs of Seller’s attorneys fees; and (iv) the cost of the boundary Survey if performed by Seller’s surveyor, excluding the incremental cost of ALTA requirements.
14. Closing. Subject to the other provisions of this Agreement, the closing of this transaction (the “Closing”) shall take place on ———— (“Closing Date”). The Closing shall take place at 10:00 AM at the offices of the Seller, at ——————–, or via mail with wire transfer of funds, unless the parties mutually agree to close at some other location.
(a) At Closing, the Purchaser shall pay the Purchase Price to Seller (net of the Deposit) and the Escrow Agent shall disburse the Deposit to Seller and Seller shall pay for its closing costs and shall execute and deliver to Purchaser and/or to the closing agent, as is appropriate, the following closing documents:
(1) a good and sufficient special warranty deed to the Realty subject only to the Permitted Exceptions, matters provided for in this Agreement and other matters acceptable to Buyer;
(2) an appropriate construction lien and Seller’s affidavit;
(3) an affidavit of exclusive possession and a non-foreign affidavit or certificate;
(4) an appropriate affidavit and/or indemnity as required by the Title Company to delete the “gap”;
(5) a marked-up title Commitment (deleting all Schedule B-I requirements and standard exceptions, provided appropriate affidavits are given and with a survey permitting same), and, within thirty (30) days after recording the deed, an owner’s title policy issued pursuant to paragraph 5 above; and
(6) a certificate of corporate or partnership resolution and/or such other evidence of authority and good standing with respect to Seller as may be reasonably required by the Title Company.
(7) copies of all Permits to the extent that they are in the possession or control of Seller and pertain only to the Realty.
(8) assignments of all Seller’s rights in all Permits applicable to the Realty.
(b) At Closing, Seller and Purchaser shall each execute counterpart closing statements and such other documents as are reasonably necessary to consummate this transaction, including the following documents to be executed by Purchaser and delivered to Seller, in addition to Purchaser making payment of the balance of the Purchase Price:
(1) evidence of good standing and authority to enter into and perform the transaction by Secretary’s Certificate of corporate resolutions and Certificate of Incumbency;
(2) Buyer’s affidavit acceptable to the agent for the title insurer if there is to be any purchase money mortgage.
15. Brokers. The parties each represent and warrant to the other that they have not retained, dealt with or been in discussions with any real estate broker, salesperson or finder involved in this transaction. If a claim for brokerage commission in connection with this transaction is made by any broker, salesperson or finder claiming to have dealt through or on behalf of one of the parties hereto (the “Indemnitor”), the Indemnitor shall indemnify, defend and hold harmless the other party hereunder (“Indemnitee”), and Indemnitee’s officers, directors, agents, partners, and representatives, from all liabilities, damages, claims, costs, fees expenses, suits, and judgments whatsoever, including reasonable attorneys fees and court costs, at the trial and all appellate levels, with respect to said claim. The provisions of this paragraph shall survive the Closing and any cancellation or termination of this Agreement.
16. Assignability. Purchaser shall not be entitled to assign or transfer any or all of its rights hereunder without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned, or delayed. Seller will consent to an assignment of the entire interest in this Agreement by Buyer to an affiliated entity which is owned by, under common control of or where principals of Buyer own 51% or more of the assignee entity, if Buyer is not then in breach or default of any of its duties and obligations hereunder, within ten (10) days after written request therefor with an Buyer’s statement of the name, address, telephone number, principals of the assignee and the relationship to Buyer. The assignee shall be required to assume in writing all of the duties and obligations of Buyer in connection with Seller’s written consent. No consent to any assignment shall act to release the Purchaser from any and all of its obligations hereunder and the assignment document shall so state. In the event Seller consents to an assignment, the assignee shall be required to assume all of the duties and obligations of the Purchaser hereunder and the Deposit and any other funds paid to Seller hereunder by Purchaser shall continue to be held and retained by Seller or Escrow Agent under this Agreement.
17. Inspections and Inspection Period.
(a) Purchaser and Purchaser’s agents and contractors shall have the right, during the Inspection Period and prior to Closing to enter upon the Realty for the purpose of inspections, making tests and studies thereon. Seller agrees to make access to the Realty available to Purchaser, for Purchaser’s inspection during normal business hours. Upon completion of such tests and inspection the Purchaser shall restore the Realty to its condition prior to such tests being made, at Purchaser’s cost. Purchaser shall have the risk of loss and damage to person and property for any of its acts or those of its agents, employees or contractors while on or about the Realty. The Purchaser shall not damage the Realty or any other property in connection with any of its inspections and shall restore any damage caused by it or its agents relating thereto and shall not permit any lien to be filed or maintained against the Realty relating to such inspections. Throughout the term of this Agreement, the Seller and its agents and employees shall at all times reasonably cooperate with Purchaser, its agents and contractors in connection with their performance of inspections provided herein.
(b) If any lien is filed on the Realty as a result of Purchaser’s activities, including, but not limited to liens filed by any person or entity retained by Purchaser to make any inspections or reports, the Purchaser shall be required to remove such lien of record within twenty (20) days after written notice of same from the Seller by bonding or payment, at the sole cost and expense of Purchaser. If Purchaser has notice of any such lien(s) prior to the date that Seller gives notice of it to Purchaser, the twenty (20) day period to remove the lien shall commence with the date of Purchaser’s knowledge of same. In the event all such liens are not timely removed, the Seller shall have the right, but not the obligation, to cause such liens to be paid from the Deposit, transferred to security out of the Deposit or otherwise removed, at the expense of the Buyer. The Escrow Agent is directed to act accordingly upon written notice from Seller. If all or a portion of the Deposit is used to remove or bond off any such liens, the Buyer shall restore the amount of Deposit so used within five (5) days after written demand of Seller. Any failure or refusal of Buyer to timely remove the liens or to restore the Deposit shall be deemed to be a breach and default hereunder by Purchaser and Seller shall have any and all rights available, including, but not limited to: (i) the right to declare a default by Purchaser and to terminate this Agreement and retain the Deposit and interest thereon as liquidated damages; (ii) the right to direct the Escrow Agent to make payment from the Deposit or interest thereon in the amount required to fully pay or bond off such lien as an expense of the Buyer. Notwithstanding any other provision herein to the contrary, in the event the Seller terminates this Agreement due to one or more liens placed on the Realty as a result of Buyer’s inspections which are not timely removed by Purchaser, the Purchaser shall be responsible for the amount of such lien(s) over and above the Deposit and the amount of such liens and reasonable attorneys fees and cost shall be added to the amount to which Seller is entitled from Buyer over and above the amount of the Deposit. If the Deposit is used by Seller to satisfy such lien(s), the Purchaser’s liability for liquidated damages shall include the amount of the Deposit and the additional amount required to pay all liens placed on the Realty and all costs and expenses related thereto. If Seller uses a portion of the Deposit to remove such lien or liens without terminating the Agreement, the Purchaser shall, within five (5) business days of written notice from Seller, restore the amount of the Deposit used for such purpose, and failure to do so shall constitute a default by Purchaser hereunder.
(c) The provisions of this paragraph 17 shall survive termination of this Agreement or closing of this transaction.
18. Escrow Agent. The Escrow Agent, and successor Escrow Agent, shall not be liable for any actions taken in good faith, but only for its gross or willful negligence. The parties hereby agree to indemnify, hold harmless and defend the Escrow Agent from and against any loss, liability, claim or damage whatsoever (including reasonable attorneys’ fees and court costs at trial and all appellate levels) the Escrow Agent may incur or be exposed to in its capacity as Escrow Agent hereunder except for gross negligence or willful misconduct. If there be any dispute as to disposition of any proceeds held by the Escrow Agent pursuant to the terms of this Agreement, the Escrow Agent is hereby authorized to interplead said amount or the entire proceeds with the Clerk of the Circuit Court of Palm Beach County, Florida and thereby be released from all obligation hereunder. The Escrow Agent shall not be liable for any failure of the depository.
19. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, or given by facsimile and addressed or sent as follows:
If to the Purchaser at:
With copy to:
If to the Seller at:
If to Escrow Agent:
Successor Escrow Agent:
Notices personally delivered, faxed or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails.
20. Risk of Loss/Eminent Domain. The Property shall be conveyed to Purchaser in the same condition as on the Effective Date, free of all tenancies or occupancies. In the event that the Realty or any portion thereof is taken by eminent domain prior to Closing, Purchaser shall have the option of either: (i) canceling this Agreement within ten (10) days after written notice from Seller of eminent domain intent and receiving a refund of the Deposit paid and all interest earned thereon, whereupon both parties shall be relived of all further obligation under this Agreement, except those set forth herein which are stated to survive Closing or termination of this Agreement (including those in paragraphs 15 and 18 above or those pertaining to any liens placed on the Realty by or as a result of the Purchaser’s activities), or (ii) Purchaser may proceed with closing without any adjustment in the Purchase Price, in which case Purchaser shall be entitled to all condemnation awards and settlements upon completion of the Closing. If Purchaser does not give Seller written notice of termination of this Agreement within ten (10) days after Seller’s notice of intent relating to eminent domain, the option of Purchaser to terminate shall be deemed to be waived and of no further force or effect.
(a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida, without regard to its principles of conflicts of laws. All parties to this Agreement have participated fully in the negotiation and preparation hereof; and accordingly, this Agreement shall not be more strictly construed against any one of the parties by virtue of having been involved in its preparation.
(b) In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid or unenforceable, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect.
(c) In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and court costs at all trial and appellate levels. The provisions of this subparagraph shall survive the Closing coextensively with other surviving provisions of this Agreement.
(d) In construing this Agreement, the singular shall be held to include the plural, the plural shall include the singular, the use of any gender shall include every other and all genders, as the context indicates and captions and paragraph headings shall be disregarded in construing this Agreement.
(e) All of the exhibits attached to this Agreement are incorporated in and made a part of this Agreement.
(f) This Agreement may be executed in counterparts, each of which shall be deemed to be an original when all parties have signed a copy. Facsimiles shall be acceptable as originals of this Agreement and any exhibits and amendments.
(g) Time shall be of the essence in this Agreement.
(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and there are no other agreements, representations or warranties other than as set forth therein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by all parties. This Agreement is binding upon the parties hereto and their respective successor and assigns.
22. Offer and Acceptance. Execution of this Agreement by Purchaser shall constitute an offer to purchase the Property, subject to acceptance at Seller’s option, which acceptance shall be deemed to have occurred only if Seller shall have delivered to Purchaser at least one counterpart of this Agreement, properly executed by Seller on or before January 17, 2000.
23. Additional Provisions.
(a) Radon is a naturally occurring radioactive gas that when 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 or Radon testing may be obtained from your County Public Health Unit.
(b) Upon expiration of the Inspection Period without Buyer having exercised its right to terminate this Agreement, then and as long as Buyer is not in breach or default hereunder, Buyer shall have the right to place one sign on the Realty, subject to the following conditions: (i) that the signs be in conformity with the signage requirements of the Village of Royal Palm Beach; (ii) that it be not larger than 4’ X 8’ in size, and similar to the existing sign of Seller now at the Realty; (iii) that Buyer obtain any required permits or approvals for such work and have such work performed and signs installed at its sole cost and expense, without liability or expense to Seller; and (iv) that upon any termination of this Agreement, Buyer shall promptly remove the signs without cost or liability to Seller within 10 days after notice to do so from Seller. If Buyer fails to remove the sign after being requested to do so by Seller as permitted by this paragraph, the Seller shall have the right to remove the signs as an expense of Buyer.
(c) As long as this Agreement is in effect and the Purchaser is not in breach or default hereof, Purchaser shall have the right to apply for and commence to obtain all approvals necessary for Purchaser’’ proposed use of the Realty, including site plan approval. Seller agrees to be reasonable in agreeing to reasonable requests of Purchaser in connection with any necessary joinders or consents in order for Purchaser to pursue the approvals, provided Seller shall not be required to grant its consent to any request which would subject Seller or the Realty to any costs, expense, liability or detriment, in the event Purchaser does not close. The Purchaser shall have the right to inquire and make an investigation with governmental agencies related to this Agreement.
24. Waiver of Jury Trial; Permits, Approvals, Submissions and Work Product.
(a) Waiver of Trial by Jury. The parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Agreement and/or claim of injury or damage.
(b) Copies of Submissions and work product. After the Effective Date and continuing to the Date of Closing, Buyer shall promptly provide to Seller, within ten (10) days of when completed or obtained by Seller or its agents or consultants, copies of all work product of Seller and its agents and consultants relating to the Realty and development thereof. This shall include, but not be limited to, surveys, architectural elevations, architectural and engineering drawings, plans, specifications, data, and specs, soil tests, environmental tests and reports, and all other such work product which in any way relates to the Property, all of which shall be deemed to be assigned to Seller and may be used by Seller, without payment or other compensation from Seller, in the event the Buyer does not close this transaction. In addition, Buyer shall provide copies of all submissions of applications, reports, date, drawings and other material and information submitted and to be submitted by or on behalf of Buyer to any and all governmental agencies, including, but not limited to, the Village, and any other State, local, county or other governmental agency, such as South Florida Water Management District, all of which shall be deemed to be assigned to Seller and may be used by Seller, without payment or other compensation from Seller, in the event the Buyer does not close this transaction.
EXECUTED as of the date first above written in several counterparts, each of which shall be deemed an original, but all constituting only one document.
Signed in the presence of:
Permits and Contracts; Approvals
1. Zoning and comp plan approval as provided in Amended and Restated Development Order for the ——————– (Resolution No. ————-);
2. Permit No. ——————–; Corps of Engineers Permit No. —————– dated
3. Palm Beach County Land Use Amendment Petition No. ———————
4. Settlement Agreement Exhibit “C”, Case No. ——————————-;
5. PBC Resolution No. —————— Resolution No. —————- Rezoning (North Side of —————) conditions of approval, ——————-;
6. PBC Resolution No. —————–Petition —————-;
7. Village of ———————— Landscaping and Signage Code.
8. PBC Development Review Committee Certification Petition No.—————-;
9. PBC Development Review Committee Certification Petition No——————
10. Developers Agreement and other matters included on Exhibit “B” hereof.
11. POA Documents of ———————- Owners Association, Inc.
12. Documents restricting use of the Realty as provided in paragraph 9 (e) hereof.
Title Matters, which are part of Permitted Exceptions
1. Ad valorem real estate taxes for the year of closing and subsequent years;
2. Developers Agreement dated ————————————————————————————————————–;
3. Settlement Stipulation between ———————————————————————————————————————————-.
4. Notice and Disclosure of Taxing Authority by —————————————-
5. Notice of Administrative Proceeding recorded in —————————–.
6. Notice of Adoption of Development Order recorded in ———————————————————————————————————————————-.
7. Matter shown on the Plat of ———————————————————————————————————————————-.
8. Restrictive Covenant Agreement by ———————————————————————————————————————————-.
9. Declaration of Covenants recorded on ———————————————–
11. Non-Exclusive Signage Easement recorded————————————————-.
13. Declaration of Restrictive Covenants dated ————————————————
15. Easement to Telephone Company —————————————————————————–.
Receipt of Deposit by Escrow Agent
The undersigned Escrow Agent hereby acknowledges receipt of the initial deposit of $37,500.00 from Buyer under the foregoing Agreement, which Escrow Agent agrees to hold in escrow as a deposit under the Agreement and agrees to perform the duties and obligations of Escrow Agent as required by the Agreement. All subsequent deposits and interest earned, if any, on deposits paid under the Agreement shall be held as required by the Agreement.
Attorney Insurance Fund, LLC
Name: ———————–, Escrow Manager