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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 ". c_ �P Y � 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 America's Gateway to the Gulfstream