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1072-Sale & Purchase-Philip NessPHILIP J. NESS, Trustee of the Philip J. Ness Trust, (AS TRUSTEE AND INDIVIDUALLY) r 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. Page 1 of 15 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 Page 2 of 15 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 Page 3 of 15 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 ". Page 4 of 15 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 Page 5 of 15 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 Page 6 of 15 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 Page 7 of 15 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 Page 8 of 15 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 Page 9 of 15 (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 Page 10 of 15 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 Pagel 1 of 15 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. Page 12 of 15 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 Page 13 of 15 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. Page 14 of 15 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 I:\MarylReal EstaletWLC\SanfordWesslsa18 and purchase agreement.wpd is �w rri L C: c Page 15 of 15 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.