HomeMy WebLinkAbout1072-Sale & Purchase-Philip NessPHILIP J. NESS, Trustee of the Philip J. Ness Trust,
(AS TRUSTEE AND INDIVIDUALLY)
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CONTRACT FOR SALE AND PURCHASE WITH THE CITY OF s'
SANFORD
Ul
THIS CONTRACT is made and entered into by and between PHILIP J. NESS,
Trustee of the Philip J. Ness Trust, (as Trustee and Individually), whose address is
3207 Westridge Blvd., Orlando, Florida 32822 -4019, and THE CITY OF SANFORD,
FLORIDA, a Florida municipal corporation, whose address is 300 North Park Avenue,
Sanford, Florida 32771 (hereinafter referred to as the "Buyer").
RECITALS:
A. The Seller owns the real property hereinafter more particularly described
in the two (2) pages attached as Exhibit "A" to this Contract (Tax Parcel Identification
Number 35- 19 -30- 300 -03413-0000
B. The Buyer has exercised its option to purchase and desires to purchase
the real property described in Exhibit "A" owned by Seller in Seminole County, Florida
for One Million One Hundred Thousand and 00/100 Dollars ($1,100,000.00) on the
terms, and under the conditions, hereinafter set forth. Seller shall not be responsible for
any closing costs whatsoever, except Seller's Attorney's fees. Buyer is purchasing the
property "as is, where is, with all faults ".
C. The signatories to this Contract represent that they have the authority to
execute this Contract and bind the respective parties hereto as set forth in this Contract.
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WITNESSETH.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. RECITALS. The Recitals set forth above have been relied upon
by the parties, are incorporated herein by this reference thereto and are hereby made a
part of this Contract as fully as if set forth herein verbatim.
SECTION 2. PROPERTY TO BE SOLD AND PURCHASED. For the
consideration herein set forth, the Seller agrees to sell to the Buyer, and the Buyer
agrees to purchase from the Seller, the real and personal property hereinafter
described, to wit:
The real property situate in Seminole County, Florida, and described and
depicted in Exhibit "A ", as is, where is, with all faults, attached hereto and made a part
hereof, together with all rights, title and interests of the Seller in and to all easements,
rights -of -way, privileges, riparian and water rights, and appurtenances belonging or in
anyway appertaining to or accruing to the real property described in Exhibit "A ", all
adjacent strips and gores lying adjacent to the said real property which separate the
property from any street or road appearing to be contiguous to the real property, and
together with all right, title and interest of Seller in and to any land lying in the bed of any
street, road or avenue, opened or proposed in front of or adjoining said real property, to
the center line thereof (said real property and the rights, interest and estates
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appurtenant thereto as above - described are hereinafter collectively referred to as the
"Premises ").
SECTION 3. PURCHASE PRICE /DEPOSIT AND METHOD OF PAYMENT.
(a) The total price for the Premises is One Million One Hundred Thousand
and no /100ths Dollars ($1,100,000.00), payable at Closing by means of a cashier's
check or certified funds on the date of Closing subject to evidence of title to Buyer's
satisfaction. If Buyer is not satisfied with Title Evidence, Buyer and Seller shall be
relieved of all obligations under this Contract.
(b) All monies to be paid hereunder, whether the purchase price of the
Premises, or otherwise, shall be paid in cash, by cashier's check or by completed bank
wire transfer of Federal funds to an account designated by the recipient (U.S. funds
only).
SECTION 4. EVIDENCE OF TITLE /TITLE INSURANCE.
(a) The Buyer may, at its cost and expense, procure issuance of a title
insurance commitment issued through the law firm of Stenstrom, McIntosh, Colbert,
Whigham, Reischmann & Partlow, P.A., acting as issuing agent ( "Closing Agent ") for a
qualified title insurer agreeing to issue to the Buyer upon recording of the deed to the
Buyer, a fee owner's policy of title insurance (ALTA Form) in the amount of the
purchase price of the Premises, insuring the title of the Buyer to the Premises, subject
only to the Permitted Exceptions (as hereinafter defined) and the so- called "Standard
Exceptions" contained on the inside jacket cover of the standard ALTA Form of
commitment; said commitment shall provide that said Standard Exceptions will be
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deleted by the title insurance company upon furnishing to the issuing agent a Lien,
Possession and Encumbrance Affidavit in the customary form (and the Seller agrees to
furnish such Affidavit at and as a part of the Closing) and a current survey and
surveyor's report (on the prescribed company form; said survey and surveyor's report to
be furnished by the Buyer at the Buyer's expense).
(b) If Buyer, after reviewing the Title Commitment Buyer may choose to
procure, is unsatisfied with its review of title, Buyer may choose to terminate this
Contract with no further liability to Buyer or Seller, or Buyer may choose to close.
(c) The search fees or Title Commitment fees and premium for the Title
Insurance Policy shall be paid at the Closing by the Buyer.
SECTION 5. CONVEYANCE OF LAND AND IMPROVEMENTS AND
PERSONAL PROPERTY.
(a) Title to the Premises shall be conveyed to the Buyer by special warranty
deed free and clear of all liens, encumbrances and matters whatsoever, and containing
all common law covenants, to specifically include, but not be limited to, the covenant of
further assurances, except the following:
(1) Taxes for the year of Closing and subsequent years.
(2) Zoning, restrictions, prohibitions and other requirements imposed
by governmental authority or as shown on the face of a plat.
(3) Easements for utilities, drainage and ingress and egress.
(4) Any exception or cloud on title accepted by Buyer pursuant to 4(b).
(b) The matters stated in this Section are defined as "Permitted Exceptions ".
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SECTION 6. SURVEY AND TOPO. During the Inspection Period the Buyer may,
at its option and expense, obtain boundary surveys of the Premises ( "Survey "),
topographical surveys and other surveys deemed necessary to the Buyer.
Buyer may conduct such due diligence as it deems necessary or advisable with
respect to permits, approvals, licenses or site plans, etc.
SECTION 7. RIGHT OF ENTRY The Buyer or its agents shall be entitled to
continue to enter upon and use the Premises under the terms of the existing agreement
and to conduct any and all environmental audits, boundary surveys, topographical
survey, or other surveys and to conduct such tests, inspections, evaluations and studies
for its purposes.
SECTION 8. WARRANTIES
(a) The Seller hereby represents and warrants to the Buyer that:
(1) The Seller has good and merchantable fee simple title to the
Premises free and clear of all liens and leasehold interests (except Permitted
Exceptions and those liens which Seller can and shall remove at Closing) and that
Seller can convey the same without the joinder of any other persons or entities;
(2) The Seller has no actual notice or information of any litigation or
administrative proceeding threatened or pending against the Premises or
the Seller's interest in it;
(3) The Seller has no actual notice or information indicating the
presence of hydrocarbons, hazardous wastes, toxic materials, asbestos, environmental
contamination or environmental pollutants on the Premises and shall not cause or
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authorize any of the same to be introduced to the Premises while this Contract is in
force;
(4) While this Contract is in force, the Seller shall not, without the
Buyer's consent, execute any easements or restrictions or otherwise take or permit any
action that would constitute an exception under the Surveys, Title Commitment or Title
Policy, or any other matter.
(b) Should any representation by the Seller herein prove false as set forth in
this Section, the Buyer shall be entitled to terminate this Contract, in which event all
rights and obligations hereunder shall terminate. All representations contained in this
Section shall survive the Closing, but the Seller shall have no obligations relative to the
condition of the Premises.
SECTION 9. ATTORNEY'S FEES Each party agrees to pay its own attorney's
fees.
SECTION 10. OBLIGATION TO CLOSE
(a) The Buyer's obligation to close the sale contemplated hereby is expressly
conditioned upon:
(1) all of the Seller's covenants and obligations being fully performed or
performance waived by the Buyer; and
(2) all representations and warranties made by the Seller in this
Contract being true and correct as of the Closing.
(b) If the sale contemplated hereby is not consummated due to a default or
inability to perform on the part of the Seller, then neither party shall have any further
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liability to the other; provided, however, that, in the event of Seller's wrongful refusal or
wrongful failure to perform, the Buyer shall also be entitled to specific performance.
SECTION 11. SELLER'S REMEDY In the event:
(a) all of the Seller's representations and warranties are true at the Closing;
and
(b) the Seller is able to deliver fee simple title to the Buyer subject only to the
Permitted Exceptions; and
(c) all of the covenants and obligations which are required to be performed by
the Seller in this Contract are fully performed; and,
(d) performance of this Contract is tendered by the Seller and the Buyer fails
or refuses to consummate the sale through no fault of the Seller then the parties shall
be relieved of any obligations to one another.
SECTION 12. ASSIGNMENT The Buyer may not assign its rights, title and
interest in this Contract.
SECTION 13. CLOSING. At Closing:
(a) The Seller shall deliver a special warranty deed for the Premises to the
Buyer. The Buyer shall pay all transfer taxes and any other costs of recording the said
deed.
(b) Possession of, and title to, the Premises shall be delivered to the Buyer by
Seller subject only to the Permitted Exceptions as set forth herein.
(c) The Seller shall furnish such typical affidavits as shall be reasonably
required by the Title Company to remove from the Title Policy the standard printed
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exceptions, such affidavits to comply, among other things, with Section 1445 of the
Internal Revenue Code (certifying that the Seller is not a foreign person) and such other
typical documents reasonably required by the Buyer or the Title Company.
(d) Ad valorem taxes, if any, shall be paid by Buyer.
(e) If all requirements for Closing are met and the Seller is not in default
hereunder, the Buyer shall deliver the Purchase Price to the Seller.
SECTION 14. NOTICES
(a) All notices required or permitted hereunder shall be in writing and deemed
delivered:
(1) when actually received in person if hand - delivered, or
(2) on the next day after being deposited with a recognized overnight
courier. or
(3) on the third day after being deposited in the U.S. Mail, certified
letter, postage prepaid, return receipt requested.
To the Buyer: Sherman Yehl
City Manager
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
Copy to Attorney for Buyer: William L. Colbert, Esquire
City Attorney
1001 Heathrow Park Lane, Suite 4001
Lake Mary, Florida 32746
Facsimile: (407) 330 -2379
To the Seller: Philip J. Ness, Trustee
3207 Westridge Blvd.
Orlando, Florida 32822 -4019
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To Attorney for Seller:
or such other address as delivered in writing to the other party.
(b) The parties hereby designate the above -named persons as
representatives who shall be authorized to act on behalf of the parties with respect to
their communications with one another under the terms of this Contract. The parties
shall have the right to replace their representatives at any time without cause by
delivering written notice of such replacement to the other party.
(c) E -mails to a party shall not constitute valid notice under the provisions of
this Contract.
(d) Facsimile via confirmed facsimile shall constitute notice when transmitted.
SECTION 15. CONTRACT DATE /EFFECTIVE DATE The Contract Date or
"the date hereof' is the date of execution by the last party to execute this Contract; to
wit: the signature by the Buyer. The parties agree that signatures by facsimile
transmission shall be binding upon the parties.
SECTION 16. DEFAULT AND REMEDIES
Default by the Seller and Remedies of the Buyer In the event that the Seller
fails, neglects or refuses to timely perform any of its obligations under this Contract, the
Buyer shall have either of the following remedies:
(1) The Buyer shall have the right of action against the Seller for
only specific performance; or
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(2) In the alternative, the Buyer may elect to terminate this
Contract by written notice to the Seller whereupon the parties shall
be released from liability hereunder.
SECTION 17. BROKERS.
(a) The Buyer represents and warrants to the Seller that the Buyer has not
dealt with any realtor, broker, or finder concerning the Premises. The Seller represents
and warrants to the Buyer that the Seller has not engaged any realtor, broker, or finder
concerning the Premises. The parties agree to indemnify, defend and hold one another
harmless with respect to any loss, cost, damage or expense arising out of, or
attributable to, any claim to a finder's fee or brokerage commission by any person or
entity claiming a commission or finder's fee from the other party by reason of acts or
agreements of the party or predicated upon any alleged Contract between the party and
any such broker or finder.
(b) Each representation, warranty and agreement contained in this Section
shall survive Closing and delivery to the Buyer of the instruments transferring title to the
Premises.
SECTION 18. DATE AND PLACE OF CLOSING This Contract shall be
closed by the Closing Agent, Stenstrom, McIntosh, Colbert, Whigham, Reischmann & ((f
Partlow, P.A., at the Closing Agent's offices on or before unless thu
Closing Date is extended by the parties.
SECTION 19. EXPENSES. The Seller shall pay for the cost and recording of
any corrective title instruments. The Buyer shall pay the cost of any surveys, tests or
evaluations that it may commission, any environmental audit reports that it may
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commission, the cost to record the special warranty deed, as aforesaid, and the cost for
any inspections or testing, and any documentary stamps to be affixed to the special
warranty deed. The Buyer shall pay the cost of the premium for the owner's title
insurance policy.
SECTION 20. SPECIAL ASSESSMENT LIENS If at any time before the
Closing of title, the Premises, or any part thereof, shall be or shall have been the subject
of any assessment or assessments for improvements or facilities in existence and
installed on the Contract Date which are payable in annual installments, of which the
first installment is then a charge or lien, or has been paid, then for the purposes of this
Contract, all the unpaid installments of any such assessment which are then due and
payable, shall be paid by Seller at or prior to Closing, and all unpaid installments of any
such assessment which becomes due and payable on or after the Closing of title shall e
the responsibility of the Buyer.
SECTION 21. RADON /FLOOD ZONE.
(a) Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present a health risk 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 the Seminole County health unit.
(b) There may be flood zone issues relating to the subject property and matters
relating to flood zone insurance could be of importance to the Buyer. The Buyer
acknowledges those circumstances relative to this Contract. The Buyer understands
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that information is available the Buyer to ensure that the property is appropriately
located with regard to flooding conditions and shall make such determination on or
before Closing.
SECTION 22. PUBLIC RECORDS. The Seller acknowledges that the Buyer is
subject to the Florida Public Records Law and cannot prevent disclosure of this
Contract except as set forth in Section 166.045 and Section 119.07(3)(n), Florida
Statutes, and Article I, Section 24 of the Constitution of the State of Florida.
SECTION 23. POST - CLOSING COOPERATION /PROVISIONS SURVIVE
CLOSING. The Seller agrees that for a period of six (6) months, upon request of the
Buyer after the date of Closing, the Seller shall reasonably cooperate with the Buyer of
information concerning the Premises and relating to periods prior to the date of Closing
provided that the requested information is readily available to the Seller from the Seller's
books and records and provided further that the Buyer reimburses to the Seller, in
advance, the Seller's costs and expenses in procuring and furnishing such requested
information to the Buyer. The provisions of this Contract shall survive Closing and
delivery of the deed and other Closing documents and shall not be extinguished by
merger.
SECTION 24. GOVERNING /CONTROLLING LAW This Contract shall be
governed by, and construed and enforced in accordance with, the laws of the State of
Florida.
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SECTION 25. SECTION HEADINGS /CAPTIONS The section headings herein
contained are inserted for convenience of reference only and shall not be deemed to be
a part of this Contract; they shall be ignored in construing this Contract.
SECTION 26. CONSTRUCTION OR INTERPRETATION OF CONTRACT The
fact that one of the parties may be deemed to have drafted or structured any provision
hereof shall not effect the interpretation of this Contract and this Contract is the result of
bona fide arms length negotiations by and between the parties and, accordingly, the
fact that one or another party drafted this Contract, or any part of it, shall not be
considered in construing the particular provision either in favor of or against such party.
Both parties have contributed substantially and materially to the drafting of this Contract.
SECTION 27. COUNTERPARTS. This Contract may be executed by the parties
in any number of counterparts, each of which shall be deemed an original, and all such
counterparts shall be deemed one and the same Contract. In the event this Contract is
executed in counterparts, the Effective Date of this Contract shall be determined with
reference to the date of the last execution of any of the counterparts.
SECTION 28. VENUE. Venue for any dispute shall be in the Eighteenth Judicial
Circuit Court in and for Seminole County, Florida.
SECTION 29. TIME OF THE ESSENCE The parties agree that they shall
diligently and expeditiously pursue their respective obligations set forth in this Contract.
SECTION 30. ENTIRE CONTRACT /INTEGRATION OF
TERMS /MODIFICATION This Contract (and all exhibits thereto) constitutes the entire
understanding and Contract between the parties hereto with respect to the subject
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matter hereof. No modification or amendment of this Contract shall be valid and binding
upon the parties unless in writing and executed by the parties to be bound thereby.
Each person executing this Contract warrants and represents that persons' full
authorization to do so. This Contract constitutes the entire Contract between the parties
pertaining to the subject matter hereof and supersedes all prior and contemporaneous
Contracts and understandings of the parties. The parties may execute multiple
counterparts of this contract hereto. Each such executed counterpart shall have the full
force and effect of an original executed instrument. The parties, however, acknowledge
the existence of the existing agreement between the parties and the Buyer's obligation
to pay Ad Valorem Taxes thereunder.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
instrument on the days and year indicated below and the signatories below hereby
represent that they have full authority to execute this Contract and to bind the parties
set forth herein.
WITNESSES: r
/d �LSC
Signature
Signature
SELLER:
PHILIP J. NESS,
Trustee of the Philip J. Ness Trust,
as Trustee and Individually
Date
ATTEST:
anet R. Dougherty, C' Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
BY: /s/ William T - Cn1bPrr
William L. Colbert, City Attorney
Date
BUYER:
CITY OF SANFORD, FLORIDA
Linda Kuhn, Mavor
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DEC -28 -2005 WED 11:r7 AM STENSTROM,MCINTOSN,COLBE FAX NO, 407 330 2379 P. 02
EXHIBIT A
COMMGNCJ:: the South 1/4 Corner of Section 35, "township 19 South, Range 30
l.;ast; Ihcnce North 00 °01'22" West, a distance of 30.00 feet to a point 30.00 feet
perpendicular mcasnrumcni to the South line of the Southeast 1/4 of said Section 35
and the Nonh tight of way line (as monumented to the West and documented to the
Bast) of 25' Su,;ct also known as County Road 46, being the POINT OF 13EGINNING.
thence parallel with said South line, along said North right of way line, South
89"54'02" West, a distance.. of 196.14 feet to the East right of way line of the Old Line
of Atlantic Co; st Railroad (no longer in use) being a point on a non tangent curve
concave Southeast, having a radius of 2,291.83 feet, a central angle of 01 °04'29 ", a
chord of 42.99 feet which bears North 35 °23'45" Last; thence Northeasterly along the
are of said curve, a distance of 42.99 feet to tlx: point of tangency; thence continue
Mont) said I-aS( right of way line. North 35 0 56'00" East, a distance of 737.39 feet to a
point 140.00 fea perpendicular measurement to the South right of way line of Country
Club Road, theoee parallel with said South right of way line, North 89 ° 50'28" East, a
dismow of 165.97 feet to a lx»nt 215.00 feet perpendicular measurement to the West
tigltl of way lire of Hardy Avenue; thence parallel with said West right at way line,
North 00'12'53" Wcst, a distance. of 1500 feet to a point 125.00 feet perpendicular
Ineasunmelt to said South right at way line of Country Club Road; thence parallel with
said South rihh; of way lino. North 89 °50'28" East, a distance of 215.00 feet to said
West right of v:ay line of ]lardy Avenue; thence along said West right of way South
00 °12'53" I;:ISI, a distance of 647.31 feet to a point 30.00 feet perpendicular
measurement to the South line of the Southeast 1/4 of said Section 35 and said North
riliht of way line of 25' Sirect; thence parallel with said South line along said North
right of way litr;, South line along said North right of way line, South 89 West,
a distance of 6.11.83 feet to the POINT OE BEGINNING.