R12-062 II
RESOLUTION NO. R12 -062
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, AUTHORIZING THE PURCHASE OF
PROPERTY OWNED BY ANDREW LUCHEY AND GAIL
LUCHEY, IN THE AMOUNT OF 565,000 PLUS ALL
fi COSTS ASSOCIATED WITH THE PURCHASE;
9 AUTHORIZES THE MAYOR TO EXECUTE ALL
Its NECESSARY DOCUMENTS AND PROVIDING AN
I I EFFECTIVE DATE.
WHEREAS, the Cit) Commission. upon recommendation of stafil has deemed it to be
l-t in the best interests of the citizens and residents of the City to accept the contract to purchase
property located at 128 N.W 10' Ak enue. Boynton Beach, ova ned by \ndrev1/4 Luchey and Gail,
18 Lucite). for the amount of 565,000.00, plus all costs associated «,ith the purchase. as part of the
tt overall plan to expand Sara Sims Memorial Gardens.
�$ NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF,
1 4 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
7( ) Section 1. Fhe foregoing "Whereas" clauses are hereby ratified and confirmed as;
211 being true and correct and are hereby made a specific part of this Resolution upon adoption
1 hereof.
i
Section. 2.
the City Commission of the City of Boynton Beach, Honda does hereby
24 authorize the purchase of propert) at 128 N.W. 10 Avenue from Andre\ 1 ucheti and Gail
Luche) in the amount of $65.000 plus all costs associated with the purchase
Section 3. The Mayor is authorized to execute all necessary documents associated,
211 kti ith the purchase of the propert).
Section 4. This Resolution shall become effective immediatel\ upon passage.
I �
U. +ui n. r A mdo In«rnel 1 1plo,cr
1�
PASSED AND ADOPTED this 17 day ofJuly, 2012.
Y OF BOYNTON BEAM FLORIDA
/
- - 74 1 0 41d0 1
Mayor - Wo )drow L.
, -- Mack McCraN
13
:14
16 Comm ione
7
1 8
1 9 - AMPI/41M
Co es ission- - even Holz man
r4-) di /
ommissioner - Marlene Ross
h6 Attest
t M. Prainito, MMC
31-) Clerk
■ Y 0 '
5 • a e 0 • a
R ia -OON
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter "Agreement") is made and entered into as of the
Effective Date (hereinafter defined), by and between CITY OF BOYNTON BEACH, a Florida
municipal corporation, of the Florida Statutes (hereinafter "CITY") and GAIL LUCHEY AND
ANDREW LUCHEY, husband and wife (hereinafter "SELLER ").
In consideration of the mutual covenants and agreements herein set forth, the Parties hereto agree
as follows:
1. PURCHASE AND SALE/PROPERTY. SELLER agrees to sell and convey to
CITY and CITY agrees to purchase and acquire from SELLER, on the terms and
conditions hereinafter set forth, the Properties located at 128 -130 NW 10
Avenue, Boynton Beach, Florida in Palm Beach County, Florida (the
"Properties ") and more particularly described as follows:
Lot 4 Less E 22.5' and E 37.5' of Lot 5, Hilltop Village,
According to the map or plat thereof, as recorded in Plat Book
24, Page 70, Public Records of Palm Beach County, Florida
2. PURCHASE PRICE AND PAYMENT. The Purchase Price to be paid for the
Property shall be Sixty Five Thousand and 00 /100 ($65,000.00) Dollars, payable in cash, by wire
transfer of United States Dollars at the Closing.
3. DEPOSIT.
3.1 Earnest Money Deposit. Within five (5) Business Days after the execution
of the Purchase Agreement by both Purchaser and Seller CITY shall deliver to Goren, Cherof,
Doody & Ezrol, P.A. ( "Escrow Agent ") a deposit in the amount of One Thousand Dollars
($1,000.00) Dollars (the "Deposit").
3.2 Application/Disbursement of Deposit. The Deposit shall be applied and
disbursed as follows:
The Deposit shall be delivered to SELLER at Closing and the CITY shall receive credit for such
amount against the Purchase Price. If this Agreement is terminated during the Feasibility Period
(hereinafter defined) for any reason, the Deposit shall be immediately refunded to the CITY. If
this Agreement is terminated due to a default, pursuant to Section 12, the Deposit shall be
delivered to (or retained by, as applicable) the non - defaulting Party, and the non - defaulting Party
shall have such additional rights, if any, as are provided in Section 12.
3.3 Escrow Agent. CITY and SELLER authorize Escrow Agent to receive,
deposit and hold funds in escrow and, subject to clearance, disburse them upon proper
authorization and in accordance with Florida law and the terms of this Agreement. The parties
agree that Escrow Agent will not be liable to any person for misdelivery of escrowed items to
CITY and SELLER, unless the misdelivery is due to Escrow Agent's willful breach of this
Agreement or gross negligence. If Escrow Agent interpleads the subject matter of the escrow,
Escrow Agent will pay the filing fees and costs from the deposit and will recover reasonable
attorney's fees and costs to be paid from the escrowed funds which are charged and awarded as
court costs in favor of the prevailing party. All claims against Escrow Agent will be arbitrated,
so long as Escrow Agent consents to arbitrate.
4. EFFECTIVE DATE. The effective date of the Purchase Agreement is the date
that the Escrow Agent receives the Escrow Deposit and Escrow Agent executes the Agreement.
5. CLOSING. The purchase and sale transaction contemplated herein shall close
thirty (30) days after the SELLER receives Short Sale Approval, as provided herein, (the
"Closing "), unless extended by other provisions of this Agreement or by written agreement,
signed by both parties.
6. TITLE TO BE CONVEYED. At Closing, SELLER shall convey to CITY, by
General Warranty Deed complying with the requirements of the Title Commitment (hereinafter
defined), valid, good, marketable and insurable title in fee simple to the Property, free and clear
of any and all liens, encumbrances, conditions, easements, assessments, restrictions and other
conditions except only the following (collectively, the "Permitted Exceptions "): (a) general real
estate taxes and special assessments for the year of Closing and subsequent years not yet due and
payable; (b) covenants, conditions, easements, dedications, rights -of -way and matters of record
included on the Title Commitment or shown on the Survey (defined in Section 7), to which
CITY fails to object, or which CITY agrees to accept, pursuant to Section 7.1 and Section 7.2
hereof.
7. FEASIBILITY PERIOD. The CITY, and its designees shall have sixty (60) days
from the Effective Date of this Agreement ( "Feasibility Period "), at CITY's expense, to make
inquiries to determine if the Property is suitable for its intended use and to enter upon the
Property, at any time and from time to time with reasonable notice to SELLER and so long as
said investigations do not result in a business interruption, to perform any and all physical tests,
inspections, valuation appraisals and investigations of the Property, including but not limited to
Phase I and Phase II investigations, which CITY may deem necessary. During this Feasibility
Period, CITY may elect, in CITY's sole and absolute discretion, to terminate this contract and
receive back all Deposits hereunder. If CITY elects to terminate this Agreement in accordance
with this Section, CITY shall: (i) leave the Property in substantially the condition existing on the
Effective Date, subject to such disturbance as was reasonably necessary or convenient in the
testing and investigation of the Property; (ii) to the extent practicable, shall repair and restore any
damage caused to the Property by CITY's testing and investigation; and (iii) release to SELLER,
at no cost, all reports and other work generated as a result of the CITY's testing and
investigation. CITY hereby agrees to indemnify and hold SELLER harmless from and against
all claims, losses, expenses, demands and liabilities, including, but not limited to, attorney's fees,
for nonpayment for services rendered to CITY (including, without limitation, any construction
liens resulting therefrom) or for damage to persons or property (subject to the limitation on
practicability provided above) arising out of CITY's investigation of the Property. However,
CITY's indemnification obligations shall not exceed its statutory limits as provided within
Section 768.28, Florida Statutes, and CITY does not waive its sovereign immunity rights.
Page 2 of 14
SELLER hereby agrees to indemnify and hold CITY harmless from and against all claims,
losses, expenses, demands and liabilities, including, but not limited to, attomey's fees, for
nonpayment for services rendered to SELLER or for damage to persons or property (subject to
the limitation on practicability provided above) arising out of CITY's investigation of the
Property. SELLERS' obligations under this Section shall survive the termination, expiration or
Closing of this Agreement.
7.1 Title Review. Within twenty (20) days of the Effective Date, CITY shall
obtain, at the CITY's expense, from a Title Company chosen by CITY (hereinafter "Title
Company "), a Title Commitment covering the Property and proposing to insure CITY in the
amount of the Purchase Price subject only to the Permitted Exceptions, together with complete
and legible copies of all instruments identified as conditions or exceptions in Schedule B of the
Title Commitment. CITY shall examine the Title Commitment and deliver written notice to
SELLER no later than thirty (30) days after the Effective Date notifying SELLER of any
objections CITY has to the condition of title (hereinafter "CITY Title Objections "). If CITY fails
to deliver the CITY Title Objections to SELLER within the aforesaid review period, title shall be
deemed accepted subject to the conditions set forth in the Title Commitment. If CITY timely
delivers the CITY Title Objections, then SELLER shall have thirty (30) days to diligently and in
good faith undertake all necessary activities to cure and remove the CITY Title Objections
(hereinafter "Cure Period "). In the event that SELLER is unable to cure and remove, or cause to
be cured and removed, the CITY Title Objections within the Cure Period, to the satisfaction of
CITY, then CITY, in CITY' s sole and absolute discretion, shall have the option of (i) extending
the Cure Period and the Closing for one additional thirty (30) day period, or (ii) accepting the
Title to the Property as of the time of Closing or (iii) canceling and terminating this Agreement,
in which case, the Deposit shall be returned to CITY and the Parties shall have no further
obligations or liability hereunder, except for those expressly provided herein to survive
termination of this Agreement.
Prior to the Closing, CITY shall have the right to cause the Title Company to
issue an updated Title Commitment ( "Title Update ") covering the Property. If any Title Update
contains any conditions which did not appear in the Title Commitment, and such items render
title unmarketable, CITY shall have the right to object to such new or different conditions in
writing prior to Closing. All rights and objections of the Parties with respect to objections
arising from the Title Update shall be the same as objections to items appearing in the Title
Commitment, subject to the provisions of this Section.
7.2. Survey Review. CITY, at CITY's expense, shall obtain a current
boundary survey (the "Survey") of the Property, indicating the number of acres comprising the
Property to the nearest 1 /100th of an acre. If the Survey discloses encroachments on the
Property or that improvements located thereon encroach on setback lines, easements, lands of
others or violate any restrictions, covenants of this Agreement, or applicable governmental
regulations, the same shall constitute a title defect and shall be governed by the provisions of
Section 7.1 concerning title objections.
Page 3 of 14
7.3 SELLER Deliveries.
SELLER shall deliver to CITY the following documents and instruments within ten
(10) days of the Effective Date of this Agreement, except as specifically indicated:
7.3.1 Copies of any reports or studies (including engineering, environmental, soil
borings, and other physical inspection reports), in SELLER' possession or control with respect to
the physical condition or operation of the Property, if any.
7.3.2 Copies of all licenses, variances, waivers, permits (including but not
limited to all surface water management permits, wetland resource permits, consumptive use
permits and environmental resource permits), authorizations, and approvals required by law or
by any governmental or private authority having jurisdiction over the Property, or any portion
thereof (the "Governmental Approvals "), which are material to the use or operation of the
Property, if any.
7.3.3 Prior to the Closing Date, SELLER shall execute and deliver to CITY any
and all documents and instruments required by CITY, in CITY's sole and absolute discretion,
which: (i) effectuate the transfer to CITY of those Governmental Approvals, or portions thereof
which are applicable to the Property, that CITY desires to have assigned to it, and/or (ii) cause
the Property to be withdrawn from any Governmental Approvals. No later than thirty (30) days
prior to the Closing Date, SELLER shall remedy, restore, and rectify any and all violations of the
Governmental Approvals (including but not limited to any and all portions of the surface water
management system, mitigation areas or other items which do not comply with the
Governmental Approvals or applicable rules), if any. SELLER warrants that there will not be, at
the time of Closing, any unrecorded instruments affecting the title to the Property, including, but
not limited to any conveyances, easements, licenses or leases.
8. CONDITIONS TO CLOSING. CITY shall not be obligated to close on the
purchase of the Property unless each of the following conditions (collectively, the "Conditions to
Closing ") are either fulfilled or waived by CITY in writing:
8.1. Representations and Warranties. All of the representations and warranties
of SELLER contained in this Agreement shall be true and correct as of Closing.
8.2. Condition of Property. The physical condition of the Property shall be the
same on the date of Closing as on the Effective Date, reasonable wear and tear excepted.
8.3. Pending Proceedings. At Closing, there shall be no litigation or
administrative agency or other governmental proceeding of any kind whatsoever, pending or
threatened, which has not been disclosed, prior to closing, and accepted by CITY.
8.4. Compliance with Laws and Regulations. The Property shall be in
compliance with all applicable federal, state and local laws, ordinances, rules, regulations, codes,
requirements, licenses, permits and authorizations as of the date of Closing.
8.5. Occupancy. The property shall be conveyed to the CITY at time of
Page 4 of 14
closing unoccupied. The SELLER hereby warrants that the current tenants are on a month -to-
month basis, were given proper notice to vacate and there are no leases on the property.
8.6 Short Sale Contingency. This Agreement is contingent upon: (a)
SELLER's lender(s) and all other lien holder(s) (collectively "Seller's Lender") approving the
Purchase Price terms of this Agreement and the HUD -1 settlement statement; (b) Seller's
Lender's agreement to accept a payoff which is less than the balance due on the loan or other
indebtedness; and (c) Seller's Lender's agreement to release and provide a satisfaction of the
mortgage(s) and/or other lien(s) encumbering the Property (the "Mortgage(s) ") upon receipt of
reduced payoff amount(s).
Approval of, or agreement to, items (a) through (c) by Seller's Lender is referred to as "Short
Sale Approval ". However, an approval by Seller's Lender which does not provide a waiver and
complete release of any claim(s) for a deficiency against Seller for sums due Seller's Lender
under the Mortgage(s) as of the payoff date, or which requires additional terms or obligations
affecting either party shall not be deemed "Short Sale Approval" unless the party affected
accepts those additional terms or obligations in writing. A copy of a Short Sale Approval
accepted by Seller shall be delivered by Seller to CITY and Closing Agent within 3 days of
Seller's receipt of such Short Sale Approval.
8.6.1 Application for Approval of Short Sale. Seller shall, within ten (10)
days after Effective Date, obtain from Seller's Lender their application forms for
a "short sale ", and Seller will diligently complete and return such forms to
Seller's Lender within 5 days thereafter and promptly provide such additional
documents as may be requested by Seller's Lender.
8.6.2 Status of Short Sale Approval Application. Seller hereby authorizes
Seller's Lender to provide CITY and CITY's Closing Agent with information
stating the status of Seller's application for approval of a Short Sale and notice of
the approval(s) or denial(s) of such application(s). Seller shall promptly notify
CITY when Seller obtains Short Sale Approval as provided herein, or denial of
such approval from Seller's Lender.
8.6.3 Short Sale Approval Deadline; Termination. If seller does not deliver
written notice to CITY that Seller has obtained Short Sale Approval within sixty
(60) days from Effective Date ( "Short Sale Approval Deadline "), then either party
may thereafter terminate this Agreement by delivering written notice to the other
party, and the Deposit will be refunded to CITY, thereby releasing CITY and
Seller from all further obligations under this Agreement.
8.6.4 Back -up Offers. During the term of this Agreement, Seller shall not
accept or enter into any back-up offers, contracts, options, or other agreements
concerning the sale of the Property.
8.6.5 Acknowledgement by Seller. If Seller is advised of Seller's Lander's
refusal to participate in any short sale, Seller agrees to immediately communicate
Page 5 of 14
this to CITY.
9. CLOSING DOCUMENTS. The CITY shall prepare, or cause to be prepared, the
Closing Documents set forth in this Section, except for documents prepared by the SELLER'S
Title Company. At Closing, SELLER shall execute and deliver, or cause to be executed and
delivered to CITY the following documents and instruments:
9.1. Deed. A Warranty Deed (the "Deed ") conveying to CITY valid, good,
marketable and insurable fee simple title to the Property free and clear of all liens, encumbrances
and other conditions of title other than the Permitted Exceptions.
9.2 Seller's Affidavits. SELLER shall furnish to CITY an owner's affidavit
attesting that, to the best of its knowledge, no individual or entity has any claim against the
Property under the applicable construction lien law; and that there are no parties in possession of
the Property other than SELLER. SELLER shall also famish to CITY a non - foreign affidavit
with respect to the Property. In the event SELLER is unable to deliver its affidavits referenced
above, the same shall be deemed an uncured title objection.
9.3. Closing Statement. A closing statement setting forth the Purchase Price,
the Deposit, all credits, adjustments and prorations between CITY and SELLER, all costs and
expenses to be paid at Closing, and the net proceeds due SELLER, which CITY shall also
execute and deliver at Closing.
9.4. Corrective Documents. Documentation required to clear title to the
Property of all liens, encumbrances and exceptions, if any, other than Permitted Exceptions.
9.5. Additional Documents. Such other documents as CITY or the Title
Company may reasonably request that SELLER execute and deliver, and any other documents
required by this Agreement or reasonably necessary in order to close this transaction and
effectuate the terms of this Agreement.
10. PRORATIONS, CLOSING COSTS AND CLOSING PROCEDURES.
10.1. Proration. Assessments, rents, interest, insurance and other
expenses of the Property shall be prorated through the day before Closing. CITY shall have the
option of taking over existing policies of insurance, if assumable, in which event premiums shall
be prorated. Cash at Closing shall be increased or decreased as may be required by prorations to
be made through the day prior to Closing. Advance rent and security deposits, if any, will be
credited to CITY. Taxes shall be prorated based upon the current year's tax with due allowance
made for maximum allowable discount.
10.2 Ad Valorem Taxes. CITY and SELLER shall comply with Section
196.295, Florida Statutes, with respect to the payment of prorated ad valorem taxes for the year of
closing into escrow with the Palm Beach County Tax Collector's Office. In the event that following
the Closing, the actual amount of assessed real property tax on the Property for the current year is
higher than any estimate of such tax used for purposes of the Closing, the parties shall re- prorate
Page 6 of 14
any amounts paid or credited based on such estimate as if paid in November. This shall survive the
Closing.
10.3. Special Assessment Liens. Certified, confirmed and ratified special
assessment liens imposed by public bodies as of Closing are to be paid by SELLER. Pending
liens as of Closing shall be assumed by CITY. If the improvement has been substantially
completed as of the Effective Date, any pending lien shall be considered certified, confirmed or
ratified and SELLER shall, at Closing, be charged an amount equal to the last estimate or
assessment for the improvement by the public body.
10.4. Closing Costs. CITY shall be responsible for all documentary stamps on
the deed, recording the deed and half of all general closing expenses (settlement fee, courier fees,
overnight package, etc.). SELLER is responsible for their own legal fees. All other costs of
closing shall be borne by CITY.
10.5 Closing Procedure. CITY shall fund the Purchase Price subject to
the credits, offsets and prorations set forth herein. SELLER and CITY (as applicable) shall
execute and deliver to Closing Agent the Closing Documents. The Closing Agent shall, at
Closing: (i) disburse the sale proceeds to SELLER; (ii) deliver the Closing Documents and a
"marked -up" Title Commitment to CITY, and promptly thereafter, record the Deed and other
recordable Closing Documents in the appropriate public records.
10.6 Existing Mortgages and Other Liens. At Closing, SELLER shall
obtain, or cause to be obtained, satisfaction or release of record of all mortgages, liens and
judgments applicable to and encumbering the Property.
11. REPRESENTATIONS, COVENANTS AND WARRANTIES.
Seller's Representations and Warranties. To induce CITY to enter into this Agreement,
SELLER makes the following representations, all of which, to the best of it's knowledge, in all
material respects and except as otherwise provided in this Agreement (i) are now true, and (ii)
shall be true as of the date of the Closing unless SELLER receives information to the contrary,
and (iii) shall survive the Closing. In that event, CITY shall be provided immediate notice as to
the change to the following representations:
11.1 At all times from the Effective Date until prior to Closing, SELLER shall
keep the Property (whether before or after the date of Closing) free and clear of any mechanic's or
materialmen's liens for work or materials furnished to or contracted for, by or on behalf of SELLER
prior to the Closing, and SELLER shall indemnify, defend and hold CITY harmless from and
against all expense and liability in connection therewith ( including, without limitation, court costs
and reasonable attorney's fees).
11.2 SELLER has no actual knowledge nor has SELLER received any notice of
any litigation, claim, action or proceeding, actual or threatened, against SELLER or the Property by
any organization, person, individual or governmental agency which would affect (as to any
threatened litigation, claim, action or proceeding, in a materially adverse fashion) the use,
occupancy or value of the Property or any part thereof or which would otherwise relate to the Land.
Page 7 of 14
1 L3 SELLER has full power and authority to enter into this Agreement and to
assume and perform its obligations hereunder in this Agreement. SELLER does not and will not
conflict with or result in the breach of any condition or provision, or constitute a default under, or
result in the creation or imposition of any lien, charge, or encumbrance upon any of the Property or
assets of the SELLER by reason of the terms of any contract, mortgage, lien, lease, agreement,
indenture, instrument or judgment to which the SELLER is a party of which is or purports to be
binding upon the SELLER or which affects the SELLER; no action by any federal, state or
municipal or other governmental department, commission, board, bureau or instrumentality is
necessary to make this Agreement a valid instrument binding upon the SELLER in accordance with
its terms.
11.4 SELLER represents that SELLER will not, between the date of this
Agreement and the Closing, without CITY'S prior written consent, which consent shall not be
unreasonably withheld or delayed, except in the ordinary course of business, create any
encumbrances on the Property. For purposes of this provision the term "encumbrances" shall mean
any liens, claims, options, or other encumbrances, encroachments, rights -of -way, leases, easements,
covenants, conditions or restrictions. Additionally, SELLER represents that SELLER will not,
between the date of this Agreement, and the Closing take any action to terminate or materially,
amend or alter any existing leases presently in existence, without the prior consent of CITY, which
consent shall not be unreasonably withheld or delayed.
11.5 SELLER represents that there are no parties other than SELLER in
possession of the Property or any portion of the Property as a lessee.
11.6 SELLER shall not list or offer the Property for sale or solicit or negotiate
offers to purchase the Property while this Agreement is in effect. SELLER shall use its best efforts
to maintain the Property in its present condition so as to ensure that it shall remain substantially in
the same condition from the conclusion of the forty-five (45) day Inspection Period to the Closing
Date.
11.7 SELLER has no actual knowledge nor has SELLER received any notice of
any litigation, claim, action or proceeding, actual or threatened, against SELLER or the Land by
any organization, person, individual or governmental agency which would affect (as to any
threatened litigation, claim, action or proceeding, in a materially adverse fashion) the use,
occupancy or value of the Land or any part thereof or which would otherwise relate to the Land.
11.8 SELLER represents that it has no actual knowledge nor has it received any
notice that the Land has been, is presently or is contemplated to be utilized as a reservoir of
hazardous material. As used herein, the term "Hazardous Material" shall mean any substance,
water or material which has been determined by any state, federal or Local government authority
to be capable of posing a risk of injury to health, safety and property, including, but not limited
to, all of those materials, wastes and substances designated as hazardous or toxic by the U.S.
Environmental Protection Agency, the U.S. Department of Labor, the U.S. Department of
Transportation, and/or any other state or local governmental agency now or hereafter authorized
to regulate materials and substances in the environment (collectively "Governmental
Authority(ies) ").
Page 8of14
11.9 SELLER represents to CITY that the Land is not subject to any deed
restrictions or declaration of restrictions running with the Land which would affect the use of the
Land and all title matters to which SELLER's property is subject to is set forth on Exhibit " ."
11.10 Between the date of this Agreement and the date of closing, SELLER will
not file any application for a change of the present zoning classification of the Land.
11.11 Authority. The execution and delivery of this Agreement by SELLER
and the consummation by SELLER of the transaction contemplated by this Agreement are within
SELLER'S capacity and all requisite action has been taken to make this Agreement valid and
binding on SELLER in accordance with its terms. The person executing this Agreement on
behalf of SELLER has been duly authorized to act on behalf of and to bind SELLER, and this
Agreement represents a valid and binding obligation of SELLER.
11.12 Title. SELLER is and will be on the Closing Date, the owner of valid,
good, marketable and insurable fee simple title to the Property, free and clear of all liens,
encumbrances and restrictions of any kind, except the Permitted Exceptions (and encumbrances
of record which will be discharged at Closing).
11.13 Additional Warranties and Representations of SELLER. As a material
inducement to CITY entering into this Agreement, SELLER, to the best of SELLER' information
and belief, hereby represents and warrants the following:
11.13.1 There are no pending applications, permits, petitions, contracts,
approvals, or other proceedings with any governmental or quasi- governmental authority, including
but not limited to, CITY, municipalities, counties, districts, utilities, and/or federal or state
agencies, concerning the use or operation of, or title to the Property or any portion thereof and
SELLER has not granted or is not obligated to grant any interest in the Property to any of the
foregoing entities.
11.13.2 There are no facts believed by SELLER to be material to the use,
condition and operation of the Property in the manner that it has been used or operated, which it
has not disclosed to CITY herein, including but not limited to unrecorded instruments or defects in
the condition of the Property which will impair the use or operation of the Property in any manner.
11.13.3 To the best of SELLER' knowledge, the Property and the use and
operation thereof are in compliance with all applicable county and governmental laws, ordinances,
regulations, licenses, permits and authorizations, including, without limitation, applicable zoning
and environmental laws and regulations.
12. DEFAULT.
12.1. CITY's Default. In the event that this transaction fails to close due to a
wrongful refusal to close or default on the part of CITY, subject to the provisions of Paragraph
12.3 below, the Deposit actually then being held by the Escrow Agent shall be paid by Escrow
Agent to SELLER as agreed liquidated damages and, thereafter, neither CITY nor SELLER shall
have any further obligation or liabilities under this Agreement, except for those expressly
Page 9of14
provided to survive the termination of this Agreement; provided, however, that CITY shall also
be responsible for the removal of any liens asserted against the Property by persons claiming by,
through or under CITY, but not otherwise. CITY and SELLER acknowledge that if CITY
defaults, SELLER will suffer damages in an amount which cannot be ascertained with
reasonable certainty on the Effective Date and that the amount of the Deposit being held by
Escrow Agent most closely approximates the amount necessary to compensate SELLER. CITY
and SELLER agree that this is a bona fide liquidated damages provision and not a penalty or
forfeiture provision.
12.2. Seller's Default. In the event that SELLER shall fail to fully and timely
perform any of its obligations or covenants hereunder or if any of SELLER'S representations are
untrue or inaccurate, then, notwithstanding anything to the contrary contained in this Agreement,
CITY may, at its option: (1) declare SELLER' in default under this Agreement by notice
delivered to SELLER, in which event CITY may terminate this Agreement and demand that the
Deposit be returned, including all interest thereon if any, in accordance with Section 3 and
neither Party shall have any further rights hereunder or (2) seek specific performance of this
Agreement, without waiving any action for damages.
12.3. Notice of Default. Prior to declaring a default and exercising the remedies
described herein, the non - defaulting Party shall issue a notice of default to the defaulting Party
describing the event or condition of default in sufficient detail to enable a reasonable person to
determine the action necessary to cure the default. The defaulting Party shall have fifteen (15)
days from delivery of the notice during which to cure the default, provided, however, that as to a
failure to close, the cure period shall only be three (3) Business Days from the delivery of notice.
Both parties agree that if an extension is requested, such extension shall not be unreasonably
withheld. If the default has not been cured within the aforesaid period, the non - defaulting Party
may exercise the remedies described above.
12.4. Survival. The provisions of this Section 12 shall survive the termination
of this Agreement.
13. NOTICES. All notices required in this Agreement must be in writing and shall be
considered delivered when received by certified mail, return receipt requested, or personal
delivery to the following addresses:
If to Seller: Andrew Luchey
8517 Estate Drive
West Palrn Beach, FL 33411
If to CITY: Lori LaVerriere, Interim City Manager
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33435
Page l0 of 14
With a copy to: James Cherof
City Attorney
3099 E. Commercial Blvd., #200
Fort Lauderdale, FL 33308
13. BINDING OBLIGATION /ASSIGNMENT. The terms and conditions of this
Agreement are hereby made binding on, and shall inure to the benefit of, the successors and
permitted assigns of the Parties hereto. SELLER may not assign its interest in this Agreement
without the prior written consent of CITY, which shall not be unreasonably withheld. CITY
shall have the right to assign this Agreement to the City of Boynton Beach (the "City ") without
the prior consent of SELLER and the CITY shall be released from any further obligations and
liabilities under this Agreement. The CITY may not assign this Agreement to any other party
without the prior written approval of SELLER, which shall not unreasonably withheld. If CITY
has been dissolved as an entity while this Agreement and/or the attached Lease Agreement are in
effect, the provisions of section 163.357(1), Florida Statutes, (as it may be amended from time to
time), shall apply.
14. BROKER FEES. The SELLER and CITY hereby state that they have not dealt
with a real estate broker in connection with the transaction contemplated by this Agreement and
are not liable for a sales commission. SELLER shall indemnify, defend and hold harmless the
CITY from and against any and all claims, losses, damages, costs or expenses (including,
without limitation, attorney's fees) of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by SELLER on its behalf
with any broker or finder in connection with this Agreement. The provisions of this Section
shall survive Closing or termination of this Agreement.
15. Environmental Conditions.
15.1. For purposes of this Agreement, pollutant ( "Pollutant ") shall mean any
hazardous or toxic substance, material, or waste of any kind or any contaminant, pollutant,
petroleum, petroleum product or petroleum by- product as defined or regulated by environmental
laws. Disposal ( "Disposal ") shall mean the release, storage, use, handling, discharge, or disposal of
such Pollutants. Environmental laws ( "Environmental Laws ") shall mean any applicable federal,
state, or local laws, statutes, ordinances, rules, regulations or other governmental restrictions.
15.1.1 As a material inducement to CITY entering into this Agreement, SELLER
hereby warrants and represents the following, as applicable:
(1) That SELLER and occupants of the Property have obtained and are
in full compliance with any and all permits regarding the Disposal of Pollutants on the Property or
contiguous property owned by SELLER, to the best of SELLER' knowledge.
(2) SELLER is not aware nor does it have any notice of any past,
present or future events, conditions, activities or practices which may give rise to any liability or
form a basis for any claim, demand, cost or action relating to the Disposal of any Pollutant on the
Property. SELLER is not aware nor does it have any notice of any past, present or future events,
Page 11 of 14
conditions, activities or practices on contiguous property that is owned by SELLER which may
give rise to any liability or form a basis for any claim, demand, cost or action relating to the
Disposal of any Pollutant affecting the SELLER property.
(3) There is no civil, criminal or administrative action, suit, claim,
demand, investigation or notice of violation pending or, to the best of that entity's knowledge,
threatened against SELLER or the Property relating in any way to the Disposal of Pollutants on the
Property, any portion thereof, or on any contiguous property owned by SELLER.
16. MISCELLANEOUS.
16.1. General. This Agreement, and any amendment hereto, may be executed in
any number of counterparts, each of which shall be deemed to be an original and all of which
shall, together, constitute one and the same instrument. The section and paragraph headings
herein contained are for the purposes of identification only and shall not be considered in
construing this Agreement. Reference to a Section shall be deemed to be a reference to the entire
Section, unless otherwise specified. No modification or amendment of this Agreement shall be
of any force or effect unless in writing executed by Parties. This Agreement sets forth the entire
agreement between the Parties relating to the Property and all subject matter herein and
supersedes all prior and contemporaneous negotiations, understandings and agreements, written
or oral, between the Parties. This Agreement shall be interpreted in accordance with the laws of
the State of Florida. The Parties hereby agree that jurisdiction of any litigation brought arising
out of this Agreement shall be in the Fifteenth Judicial Circuit in and for Palm Beach County,
Florida, or, should any cause of action be limited to federal jurisdiction only, in the United States
District Court for the Southern District Court of Florida.
16.2. Computation of Time. Any reference herein to time periods which are not
measured in Business Days and which are less than six (6) days, shall exclude Saturdays,
Sundays and legal holidays in the computation thereof. Any time period provided for in this
Agreement which ends on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. on the
next full Business Day. Time is of the essence in the performance of all obligations under this
Agreement. Time periods commencing with the Effective Date shall not include the Effective
Date in the calculation thereof.
16.3. Waiver. Neither the failure of a party to insist upon a strict performance
of any of the terms, provisions, covenants, agreements and conditions hereof, nor the acceptance
of any item by a party with knowledge of a breach of this Agreement by the other party in the
performance of their respective obligations hereunder, shall be deemed a waiver of any rights or
remedies that a party may have or a waiver of any subsequent breach or default in any of such
terms, provisions, covenants, agreements or conditions. This paragraph shall survive termination
of this Agreement and the Closing.
16.4. Construction of Agreement. The Parties to this Agreement, through
counsel, have participated freely in the negotiation and preparation hereof. Neither this
Agreement nor any amendment hereto shall be more strictly construed against any of the Parties.
As used in this Agreement, or any amendment hereto, the masculine shall include the feminine,
the singular shall include the plural, and the plural shall include the singular, as the context may
Page 12 of 14
require. Provisions of this Agreement that expressly provide that they survive the Closing shall
not merge into the Deed.
16.5. Severability. If any provision of this Agreement or the application thereof
shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this
Agreement nor the application of the provision to other persons, entities or circumstances shall
be affected thereby, but instead shall be enforced to the maximum extent permitted by law. The
provisions of this Section shall apply to any amendment of this Agreement.
16.6 Handwritten Provisions. Handwritten provisions inserted in this Agreement
and initialed by CITY and SELLER shall control all printed provisions in conflict therewith.
16.7 Waiver of Jury Trial. As an inducement to CITY agreeing to enter into this
Agreement, CITY and SELLER hereby waive trial by jury in any action or proceeding brought by
either party against the other party pertaining to any matter whatsoever arising out of or in any way
connected with this Agreement.
16.8. Attorney's Fees and Costs. Should it be necessary to bring an action to
enforce any of the provisions of this Agreement, reasonable attorney's fees and costs, including
those at the appellate level, shall be awarded to the prevailing party.
16.9 Binding Authority. Each party hereby represents and warrants to the other
that each person executing this Agreement on behalf of the CITY and SELLER has full right and
lawful authority to execute this Agreement and to bind and obligate the party for whom or on
whose behalf he or she is signing with respect to all provisions contained in this Agreement.
16.10 Recording. This Agreement may be recorded in the Public Records of
Palm Beach County, Florida.
16.11 Survival. The covenants, warranties, representations, indemnities and
undertakings of SELLER set forth in this Agreement, shall survive the Closing, the delivery and
recording of the SELLER Property Deed and CITY's possession of the Property.
16.12 SELLER Attorney's Fees and Costs. SELLER acknowledges and agrees
that SELLER shall be responsible for its own attorney's fees and all costs, if any, incurred by
SELLER in connection with the transaction contemplated by this Agreement.
Page 13of14
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
date.
Date: - 7 - /9 - II
SELLER
Gail Luc hey
Date:
M M =�=�
L M 10 A 1=0 4 Ma wl$ 9 V ".
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� O O4
CITY CLERK'S OFFICE
= MEMORANDUM
1
�rO
TO: James Cherof
City Attorney
FROM: Janet M. Prainito, MMC
City Clerk
DATE: July 18, 2012
RE: Agreements Approved by City Commission July 17, 2012
Attached is the agreement that was approved by the City Commission at their regular meeting
held on July 17, 2012. Please review, sign and return to me for further processing. Thank you.
RESOLUTION NO. OF DESCRIPTION
# DOCUMENTS
R12 - 059 1 Ground Lease Agreement with MetroPCS to
allow for ground equipment and co- location on
the existing Telecommunications tower at Hester
Park
R12 - 060 1 Broker Agreement for the Renewal of the current
insurance programs
R12 - 061 1 Agreement with Health Career Institute, Inc. (HCI)
for a cooperative relationship to use Boynton Beach
as a clinical training site.
R12 - 062 1 Purchase Agreement for the purchase of property
owned by Andrew Luchey and Gail Luchey.
R12 - 064 1 Accepting the Edward Byrne Memorial Justice
Assistance Grant Program (JAG) for the holiday
deployment operation and purchase of tasers.
Attachments
S' \CC \WP \AFTER COMMISSION \City Attorney Transmittals \Year 2012 \07-17- 12.doc
The City • Boynton Beach
UI,, ", .........................................................................................
City Clerk's Office
LOO E BOYNTON BEACH BLVD
BOYNTON BEACH FL 33435
(561) 742-6060
FAX: (561) 742-6090
e-mail: prainitoj@bbfl.us
www.boynton-beach.org
TO: Debbie Reamsnyder
FROM: Janet M. Prainito, MM
City Clerk
DATE: July 24, 2012
Attached for your handling is the original agreement mentioned above and a copy of
the Resolution. Once the document has been executed, please return the original to
the City Clerk's Office for further processing.
I I I 1�11111:; 1 1 1 11111 liff
lip 11, 1 1 l ; �
l IIII&I, ;� , r, •
Attachments
(Agreement & Resolution)
C: Central File
S:\CC\WP\AFTER COMMISSION\Departmental Transmittals\2012\Debbie Rearnsnyder R12-062 Luchey Purchase
Agreement.doc
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