05/15/2013 AgreementRESOLUTION No. 151-2013
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY AUTHORIZING
THE SALE OF REAL PROPERTY LOCATED AT 103 KEY
HEIGHTS DRIVE, LEGALLY DESCRIBED AS LOTS 1,2, AND
24, BLOCK 11 OF KEY HEIGHTS, SECTION TWO
ACCORDING TO THE PLAT THEREOF, AS RECORDED IN
PLAT BOOK 3, PAGE 159 OF THE PUBLIC RECORDS OF
MONROE COUNTY, FLORIDA, TO ISLAMORADA, VILLAGE
OF ISLANDS; AUTHORIZING THE MAYOR AND MAYOR
PRO TEM, CHAIRMAN AND VICE — CHAIRMAN
RESPECTIVELY TO EXECUTE DOCUMENTS TO CONVEY
THE PROPERTY AND AUTHORIZING THE COUNTY
ADMINISTRATOR TO EXECUTE ANCILLARY CLOSING
DOCUMENTS
WHEREAS, Monroe County (County) owns real property within the municipal limits of
Islamorada, Village of Islands (Islamorada), located at 103 Key Heights Drive legally described
as:
Lots 1, 2, and 24, Block 11, of KEY HEIGHTS, SECTION TWO
according to the plat thereof, recorded in Plat Book 3, page 159,
of the Public records of Monroe County, Florida (Property)
having Parcel ID# 00417340-000000; and
WHEREAS, Islamorada, Village of Islands, is a Florida municipal corporation; and
WHEREAS, the County may convey the Property to a municipality with an accompanying
resolution pursuant to Florida Statute Sec. 125.38; and
WHEREAS, the Property is currently used by the County for equipment storage which would be
better located elsewhere for County use; and
WHEREAS, Islamorada has applied to purchase the Property for a pump station site for its
wastewater treatment system and the County is satisfied that the property is necessary for
such use; and
WHEREAS, the County no longer has a need for the Property; and
Final Approved Resolution
Sale 103 Key Heights Drive
WHEREAS, the price agreed to by the County and Islamorada is Four Hundred and Seventy
Seven Thousand and No/100 Dollars ($477,000.00);
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
1. The Board approves the sale of the Property to Islamorada, Village of Islands, for the
aforementioned sum pursuant to the Purchase and Sale Agreement attached hereto.
2. The Mayor/Chairman or Mayor pro tem/ Vice Chairman of the Board of County
Commissioners of Monroe County is authorized to execute those documents necessary
to convey the Property.
3. The County Administrator or his designee is authorized to execute ancillary documents
as necessary for, or at, the closing transaction to carry out the purpose of this
Resolution and facilitate the sale and closing of the Property including any personalty.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a
regular meeting held on the 15th day of May, 2013.
Mayor George Neugent No
Mayor pro tem Heather Carruthers Yes
Commissioner Danny L. Kolhage Yes
Commissioner David Rice Yes
Commissioner Sylvia Murphy No
MONROE COUNTY BOARD OF COUNTY CO ISSIONERS
By
Mayor George Neugent
S,;;O,!ROE COUN
APPROVE
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Final Approved Resolution
Sale 103 Key Heights Drive
EXHIBIT A
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of the 15th day of May , 2013, by and between MONROE
COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred
to as "Seller"), and ISLAMORADA, VILLAGE OF ISLANDS, a Florida municipal
corporation (hereinafter referred to as "Purchaser").
WHEREAS, Seller is the owner of certain improved real property consisting of
approximately 27,442 square feet or 0.63 acres located at 103 Key Heights Drive, in
Islamorada, Village of Islands ("Village"), Monroe County, Florida, and more specifically
described on Exhibit "A" attached hereto and made a part hereof, and
WHEREAS, Purchaser desires to purchase for the purpose of constructing and
operating a vacuum pump station on the Property (hereinafter defined) and related wastewater
uses in connection with Purchaser's centralized wastewater system, and Seller desires to sell
the Property, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and promises
contained herein and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser and Seller agree as follows:
SECTION 1: DEFINITIONS
For purposes of this Agreement, each of the following terms, when used herein with an
initial capital letter, shall have the following meaning:
1.1 Business Day. Monday through Friday excluding bank holidays on which
national banking associations are authorized to be closed.
1.2 Closin . The Closing and consummation of the purchase and sale of the
Property as contemplated by this Agreement.
1.3 Closing Date (or Date of Closing). The date upon which Closing occurs.
1.4 Condemnation Proceeding. Any proceeding or threatened proceeding in
condemnation, eminent domain or written request in lieu thereof.
1.5 Deed. The deed of conveyance of the Property from Seller to Purchaser.
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1.6 Effective Date. The date when the last one of Seller or Purchaser has signed
and initialed all changes to this Agreement.
1.7 Environmental Reports. The environmental assessment audits conducted on
behalf of Purchaser or by Purchaser's environmental engineers, at Purchaser's expense, with
respect to the Property, certified and delivered to Purchaser, including the Phase I
Environmental Site Assessment Report prepared by Arcadis, dated December 27, 2012 (as to
Lot 24 of the Property), Phase I Environmental Site Assessment Report prepared by Universal
Engineering Sciences, Inc., dated May 3, 2013 (as to Lots 1 and 2 of the Property), the Phase
II Environmental Site Assessment Report prepared by Universal Engineering Sciences, Inc.,
dated May 2, 2013, and the Asbestos Containing Building Material Survey prepared by
Universal Engineering Sciences, Inc., dated May 1, 2013.
1.8 Evidence of Authority. Evidence of authority for the execution and
performance of this Agreement by Seller including, without limitation, necessary resolutions,
authorizations, consents, orders or directions.
1.9 Governmental Authority. Any federal, state, county, municipal or other
entity, authority, commission, board, bureau, court, agency or any instrumentality of any of
them.
1.10 Hazardous Substances. Any material or substance that, whether by its nature
or use, is now or hereafter defined as hazardous waste, hazardous substance, pollutant or
contaminant under any Legal Requirement, or which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and which is regulated
under any Legal Requirement, or which is or contains petroleum, gasoline, diesel fuel or another
petroleum hydrocarbon product.
1.11 Improvements. All buildings, structures, fixtures, including, without
limitation, all utility systems and drainage facilities, if any, and other improvements and
facilities located on the Land, including an existing motel building currently in use by Seller as
County administrative offices, and for storage of equipment and vehicles.
1.12 Intangible Property. All intangible property owned by Seller and used in
connection with or relating to the ownership, use, development, operation, management,
occupancy or maintenance of the Land including, but not limited to, the Permits, development
rights, eight (8) transient motel units, and all public and private contract rights and
development or usage rights of Seller with respect to the Land.
1.13 Land. The improved real property consisting of approximately 27,442 square
feet or 0.63 acres, as more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference, and appurtenant easements thereto, together with all of
Seller's right, title and interest in and to all easements, rights of way, strips and gores of land,
tenements, hereditaments and appurtenances, reversions, remainders, privileges, licenses and
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other rights and benefits belonging to, running with or in any way relating thereto; together
with all right, title and interest of Seller (if any) in and to any land lying in the bed of any
street, road or highway, open or proposed, in front of, abutting or adjoining the Land.
1.14 Legal Requirement. All laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses, authorizations,
directions and requirements of all Governmental Authorities and quasi -governmental
authorities, officials, agencies, and officers, ordinary or extraordinary, including any and all
environmental laws, statutes, codes, acts, ordinances, orders, judgments, decrees, injunctions,
rules, regulations, permits, licenses, authorizations, directions and requirements relating to or
addressing the protection of the environment or human health, which now may be applicable
to the Property or any use, operation or condition thereof.
1.15 MonetaryLien. Any mortgage, deed of trust, security deed, lien, monetary
judgment, security interest, past due tax or assessment or other similar encumbrance of a
monetary nature against the Property or any portion of the Property.
1.16 Owner's Title Policy. An Owner's marketability policy of title insurance on
the most current ALTA Form for the Property in the amount of the Purchase Price, subject
only to the Permitted Exceptions, and containing such additional endorsements permitted
under Florida title insurance regulations as reasonably requested by Purchaser.
1.17 Permits. All consents, notices of completion, environmental and utility permits
and approvals authorizations, variances, waivers, licenses, permits, certificates and approvals
from any Governmental Authority or quasi -governmental authority issued or granted with
respect to the Property now or prior to Closing.
1.18 Permitted Exceptions. Those matters identified or referred to in Section 5.3
and such other title exceptions as may hereafter be approved in writing (or deemed to have
been approved by Purchaser) subject to and in accordance with the terms and provisions of
Section 5 herein.
1.19 Person. Any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, institution, entity, party or government
(whether national, federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department thereof).
1.20 Propedy. The following shall constitute the Property:
1.20.1 The Land;
1.20.2 The Improvements; and
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1.20.3 The Intangible Property and all interests of Seller therein.
1.21 Purchaser's Attorney. Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.,
Attention: Lillian M. Arango, Esq. Purchaser's Attorney's mailing address is 2525 Ponce de
Leon Blvd., Suite 700, Coral Gables, Florida 33134. Telephone: (305) 854-0800; Telecopier:
(305) 854-2323.
1.22 Seller's Attorney. Susan Grimsley, Esq, Monroe County Attorney's Office.
Seller's Attorney's mailing address is 1111 12th Street, Suite 408, Key West, Florida 33040.
Telephone: (305) 292-3470; Telecopier: (305) 292-3516.
1.23 Survey. A survey of the Property prepared on behalf of Purchaser by a
licensed surveyor in the State of Florida, certified as meeting the minimum standards for
survey in the State of Florida. The Survey shows (i) the square footage and acreage of the
Land, (ii) the location of all the improvements, utility and other lines and easements, either
visible or recorded, and the recording references of all the recorded easements shown on the
Title Commitment, (iii) the elevation and flood zone information, and (iv) contain such other
items as may be reasonably required by Purchaser.
1.24 Title Commitment. The commitment for title insurance obtained by Purchaser
pursuant to Section 5 below.
1.25 Title Company. Chicago Title Insurance Company or such other nationally
recognized title insurance company licensed to write title insurance in the State of Florida
approved by Purchaser.
SECTION 2: PURCHASE AND SALE
Purchaser shall purchase the Property from Seller, and Seller shall sell, convey,
transfer and assign the Property to Purchaser, subject to and in accordance with the terms and
conditions of this Agreement.
SECTION 3: EARNEST MONEY
Intentionally Deleted. No Earnest Money or Deposit shall be required from Purchaser.
SECTION 4: PURCHASE PRICE
The purchase price for the Property shall be Four Hundred and Seventy Seven Thousand
and No/100 Dollars ($477,000.00) (herein referred to as the "Purchase Price"). The entire
Purchase Price, subject to adjustments, prorations and credits as herein provided, shall be due
and payable by cashier's check or in immediately available funds by wire transfer, at Closing.
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SECTION 5: TITLE/SURVEY
Title to the Property shall be good and marketable and insurable fee simple title in an
amount of the Purchase Price at no more than the Title Company's ordinary or promulgated
rates for the Owner's Title Policy. Seller shall deliver such affidavits and agreements as may
be reasonably required by the Title Company in order to issue the Owner's Title Policy in
accordance with this Agreement.
5.1 Examination of Title. Purchaser has obtained, at Purchaser's expense, an
ALTA marketability title insurance commitment (the "Title Commitment") issued by the Title
Company with an effective date of March 31, 2013 covering the Land pursuant to which the
Title Company agrees to issue the Owner's Title Policy to Purchaser. The cost of the Title
Commitment and the Owner's Title Policy shall be paid by Purchaser.
5.2 Survey. Purchaser has obtained, at Purchaser's expense, a Survey of the
Property from CPH dated December 12, 2012, under Project No. 44300-00. The cost of the
survey shall be paid by Purchaser.
5.3 Permitted Exceptions. The sale of the Property shall be subject to the
permitted title exceptions as set forth herein below:
5.3.1. The lien of all ad valorem real estate taxes for the year in which
Closing occurs, to the extent applicable and should the property not
be exempt from taxation, subject to proration as herein provided;
5.3.2. Any items shown on the Title Commitment, including the Plat of
Key Heights, Section Two, as recorded in Plat Book 3, Page 159,
of the Public Records of Monroe County, Florida; (ii) Easement in
favor of Florida Keys Electric Cooperative Association, Inc.,
recorded January 31, 1980, in Official Records Book 805, Page
464, of the Public Records of Monroe County, Florida; and (iii)
Easement in favor of Florida Keys Electric Cooperative
Association, Inc., recorded October 1, 1981, in Official Records
Book 840, Page 1365, of the Public Records of Monroe County,
Florida
5.3.3 All laws, ordinances, and governmental regulations, including, but
not limited to, all applicable building, zoning, land use and
environmental ordinances and regulations; and
5.3.4 All matters shown on the Survey of the Property provided that the
foregoing exception shall not be deemed to limit the rights and
obligations of the Purchaser and Seller as set forth in Sections 5.4
and 5.5 below.
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The above items described in this Section 5.3 are herein collectively referred to as the
"Permitted Exceptions".
5.4 Objections to Title/Survey. If any title matter other than a matter disclosed in
the Title Commitment or the Survey arises or becomes known to Purchaser subsequent to the
date of the Title Commitment (a "New Title Matter") and such New Title Matter (a) is a
Monetary Lien or (b) was created or consented to by Seller, then Seller shall cure the New
Title Matter, at Seller's expense, on or before Closing. If the New Title Matter constitutes a
Monetary Lien, then Seller shall pay the amount due in satisfaction of each such Monetary
Lien as to the Property only (or, subject to Purchaser's reasonable approval, otherwise cause
the same to be removed as an exception in the Title Commitment) which amount, at the option
of Seller, may be paid from the proceeds of the Purchase Price at Closing. If one or more
Monetary Liens have not been satisfied before the Closing Date, then Purchaser is hereby
authorized to satisfy such Monetary Liens from the proceeds of the Purchase Price at Closing.
If the New Title Matter is not a Monetary Lien or was not created or consented to by Seller,
then Seller shall have until the earlier of (i) five (5) Business Days of Seller's receipt of
written notice thereof or (ii) the Closing Date, within which to cure the same, and if such New
Title Matter is not cured within such period, then Purchaser may, at its sole option, exercised
by written notice to Seller within five (5) Business Days following the expiration of the five
(5) Business Day cure period, either (i) terminate this Agreement or (ii) elect to close subject
to such New Title Matter. In the event of termination, neither party hereto shall have any
further rights, obligations nor liabilities hereunder except to the extent that any right,
obligation or liability set forth herein expressly survives termination of this Agreement.
5.5 Extension of Closing Date. The Closing Date shall be automatically extended
to allow all time periods specified in this Section 5 to expire.
SECTION 6: SELLER'S REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Purchaser and covenants and agrees with Purchaser,
on and as of the date hereof, to be certified to Purchaser on or as of the Closing, as follows:
6.1 Title. Seller is the fee simple owner of the Property free and clear of all
encumbrances except for the Permitted Exceptions. There are no parties with a right to
ownership, possession or use of the Property, including tenants, lessees, leaseholders, or other
occupants of the Property, and prior to Closing any such lease, tenancy, or other form of
interest or occupancy shall be terminated and the Property shall be free of such as it is free of
all other encumbrances except for the Permitted Exceptions.
6.2 Organization, Power and Authority. Seller is a political subdivision of the
State of Florida, duly formed, validly existing and in good standing under the laws of the State of
Florida. Seller has obtained all necessary authorizations and power to execute and deliver this
Agreement and perform all its obligations hereunder. The execution, delivery and
performance of this Agreement by Seller (i) has been duly and validly authorized by all
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necessary action on the part of Seller, including all required resolutions and authorizations
from the Board of County Commissioners of Monroe County, Florida, and (ii) does not
conflict with or constitute a breach of, or constitute a default under, any contract, agreement
or other instrument by which Seller or the Property is bound or to which Seller is a party.
6.3 No Conflict with Laws. The execution and delivery of this Agreement by
Seller and the performance by Seller of its obligations hereunder will not conflict with or
result in a breach of any order, judgment, writ, injunction or decree of any court or
Governmental Authority.
6.4 No Bankruptcy. Seller is not a party to any voluntary or involuntary
proceedings under any applicable laws relating to the insolvency, bankruptcy, moratorium or
other laws affecting creditors rights to the extent that such laws may be applicable to Seller or
the Property.
6.5 No Litigation. Seller is not a party to or affected by any litigation,
administrative action, investigation or other governmental proceeding which would or could
have an adverse effect upon the Property or upon the ability of Seller to fulfill its obligations
under this Agreement. There are no lawsuits, administrative actions, governmental
investigations or similar proceedings pending or threatened against or adversely affecting the
Property or any portion thereof or any interest therein.
6.6 Permits. All Permits and approvals required for the lawful operation, use and
development of the Property have been issued and paid for and are in full force and effect.
6.7 Legal Requirements. Except as set forth in the Environmental Reports, the
Property is in compliance with the zoning, subdivision and all other Legal Requirements.
6.8 Compliance. Except as set forth in the Environmental Reports, the Property is
not in violation of any Legal Requirements.
6.9 No Violations. There are no presently outstanding and uncured notices of any
violations of any Legal Requirements.
6.10 Utilities. All public utilities (including, without limitation, sanitary sewer,
storm sewer, electricity, gas, water and telephone) which have been installed in connection
with the Property or any part thereof, if any, are installed and operating and have been
accepted by such utility company or governmental authority. Except for the Phase I
Wastewater Assessments due the Village on the Property, all installation and connection fees,
"tie-in" charges, impact fees, tap -on, permit and other fees with respect to the utilities or
facilities now serving the Property, including, but not limited, to water, electric, telephone and
gas, have been fully paid, except for monthly utility service bills which will be paid prior to
delinquency. Seller has not received any complaint or claim with respect to storm water flow
from any owner of adjacent property or otherwise. All such public utilities either enter the
Land through adjoining public streets or, if they pass through adjoining private land, do so in
accordance with valid and recorded public easements or private easements which inure to the
benefit of Purchaser.
6.11 Condemnation. To Seller's actual knowledge, there are no proceedings
pending or threatened against or affecting the Property or any portion thereof or interest
therein in the nature of or in lieu of condemnation or eminent domain proceeding.
6.12 Assessments. Except with respect to the Phase I Wastewater Assessments
levied by the Village on the Property, Seller has no actual knowledge and Seller has not
received written notice of any assessments by a public body or state imposed, contemplated or
confirmed and ratified against any of the Property for public or private improvements which
are now or hereafter payable.
6.13 Contractors. All contractors, subcontractors, architects, materialmen,
laborers, suppliers and other parties who have performed or furnished work, labor, materials,
equipment or supplies or have labored on the Property to make improvements thereon or
otherwise to improve the Property are paid in full, and there are no unpaid claims related to
work that has been completed or is in progress.
6.14 Hazardous Substances on Property. Except as set forth in the Environmental
Reports, Seller has not caused Hazardous Substances to be discharged, disbursed, released,
stored, treated, generated, disposed of, or allowed to escape on, in, or under the Property in a
manner which violates any Legal Requirements regulating such substances and, other than as
specifically set forth herein, to the best of Seller's knowledge, no other Person has caused
Hazardous Substances to be discharged, disbursed, stored, treated, generated or allowed to
escape on, in or under the Property. Except as set forth in the Environmental Reports, no
asbestos or asbestos containing materials have been installed, used, incorporated into, or
disposed of on the Property by Seller, or, to the best of Seller's knowledge, by any other
Person. No PCBs have been located on or in the Property, whether in electrical transformers,
fluorescent light fixtures with ballasts, cooling oils, or otherwise, by Seller or, to the best of
Seller's knowledge, by any other Person. No underground storage tanks are currently located
on, at or under the Property. To best of Seller's knowledge, no investigation, administrative
order, consent order or agreement, litigation, or settlement with respect to Hazardous
Substances is proposed, threatened, anticipated or in existence with respect to the Property.
The Property has not previously been used as a landfill, a cemetery, or a dump for garbage or
refuse by Seller or, to the best of Seller's knowledge, by any other Person. Purchaser has
received Environmental Reports performed on the Property. Seller has agreed to adjust and
reduce the Purchase Price at Closing in the amount of Twenty Thousand and No/100 Dollars
($20,000.00) in connection with any costs for removal, remediation or cleanup of any
Hazardous Substances or other substances on the Property which may be incurred by
Purchaser, and any and all other costs for removal, remediation or cleanup of any Hazardous
Substances or other substances shall be the responsibility of Purchaser. Notwithstanding the
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foregoing adjustment or reduction in the Purchase Price, Purchaser shall not be required or
obligated to perform any removal, remediation or cleanup of Hazardous Substances or other
substances on the Property, and shall not be required or obligated to use such sum for such
purposes.
6.15 No Rights to Purchase. Except for this Agreement, Seller has not entered
into, and has no actual knowledge of any agreement, commitment, option, right of first refusal
or any other agreement, whether oral or written, with respect to the purchase, assignment or
transfer of all or any portion of the Property which is currently in effect.
6.16 No Latent Defects. To Seller's actual knowledge, the Property has no hidden
or latent defects.
6.17 Parties in Possession. Other than Seller, there are no parties in occupancy or
possession of any portion of the Property as lessees, tenants at sufferance or trespassers.
Seller agrees to clean up and remove all abandoned personal property, trailers, refuse,
garbage, trash and debris from the Property to the satisfaction of the Purchaser prior to the
Closing Date.
6.18 Entrances and Exits. All current curb cuts, entrances and exits to the Real
Property are lawful and permitted.
6.19 Access. There is permanent vehicular and pedestrian egress from and egress to
the Land over public roads that abut the Land.
6.20 No Commitments to Dedicate Property. No commitments or agreements have
been or will be made to any Governmental Authority, utility company or any other
organization, group or individual, relating to the Land which would impose an obligation upon
Purchaser to make any contributions or dedications of money or land to construct, install or
maintain any improvements of a public or private nature on or off the Land, or otherwise
impose liability on Purchaser.
6.21 Adverse Conditions. Seller has no actual knowledge of any adverse fact
relating to the physical condition of the Land which has not been specifically disclosed in
writing to Purchaser, including, without limitation, adverse soil conditions.
6.22 Unrecorded Agreements Restricting Use of the Property. Seller has not, nor
to Seller's actual knowledge has any predecessor in title, executed or caused to be executed
any document with or for the benefit of any Governmental Authority restricting the
development, use or occupancy of the Property that is not recorded in public records of
Monroe County or has not been specifically disclosed in writing to Purchaser.
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6.23 Survival. The foregoing representations, warranties, covenants and agreements
of Seller in this Section 6 shall survive the Closing or termination of this Agreement.
6.24 Actual Knowledge. As used in this Agreement or in any Exhibit attached
hereto, any reference to actual knowledge shall with respect to Seller mean the actual
knowledge of Seller and its agents, officers and employees who have any association with the
ownership, operation and use of the Property.
SECTION 7: PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to Seller that the following facts and conditions exist
and are true as of the date hereof and shall exist and be true as of the date of the Closing.
7.1 Purchaser is a validly formed municipal corporation in good standing organized
and existing under the laws of the State of Florida and has all requisite power and authority to
purchase the Property and to enter into and perform its obligations hereunder.
SECTION 8: SELLER'S COVENANTS
From and after the date hereof, through and including the Closing Date, Seller agrees
as follows (each of which covenants is a condition to Purchaser's obligations to close under
this Agreement and must be satisfied by Seller or waived by Purchaser in writing prior to
Closing):
8.1 Inspection of Property. Seller will allow Purchaser and its agents and
contractors to enter upon the Property for any purpose in connection with Purchaser's proposed
purchase, use and operation of the Property.
8.2 Management and Operation Prior to Closing. Between the date of this
Agreement and the Closing Date, Seller shall maintain the Property, committing or permitting
no waste thereto, such that at the time of the Closing, the Property shall be in substantially the
same physical condition as on the date of Seller's execution of this Agreement.
8.3 Notices. Seller shall, promptly upon Seller's obtaining knowledge thereof,
provide Purchaser with a written notice of any event which has an adverse effect on the
physical condition of the Property.
8.4 Notices of Violation. Promptly after Seller obtains actual knowledge or upon
receipt of written notice thereof, Seller has provided or shall provide Purchaser with written
notice of any violation of any Legal Requirements affecting the Property, or any matter which
affects Seller's ability to perform its obligations under this Agreement or any other
correspondence or notice received by Seller which has or has the potential to have an adverse
effect on the Property.
8.5 Seller's Cooperation. If requested by Purchaser, Seller will prior to the Date
of Closing promptly execute all petitions, applications, easements, site plans and other
documents which Purchaser may reasonably request and otherwise reasonably cooperate with
Purchaser in connection with Purchaser obtaining or granting any permit, site plan approval,
easement, right-of-way dedication, rezoning, right-of-way deed, variance or other
administrative authorization required for Purchaser's proposed development of the Property.
8.6 Survival. Any claim for breach of the covenants contained in this Agreement
including, without limitation, in this Section 8 shall survive the Closing.
SECTION 9: PURCHASER'S DUE DILIGENCE AND INSPECTION OF PROPERTY
9.1 Inspection of Property. Purchaser or its appointed agents or independent
contractors or consultants shall have, at all reasonable times prior to the Closing, the right of
going upon the Property, at Purchaser's sole cost and expense, to inspect, examine, test and
investigate the Property (including all improvements located thereon and the existing motel
structure), for the purposes of conducting any further environmental assessments, tests and
inspections as may be deemed necessary or appropriate by Purchaser. In exercising the
privileges granted pursuant to this subsection 9.1, Purchaser shall substantially restore the
Property to the condition existing prior to such activities on the Property. In consideration of
Purchaser's right to inspect the Property as described in this subsection 9.1, subject to the
provisions and monetary limitations of Section 768.28, Florida Statutes, Purchaser agrees to
indemnify, defend and hold Seller harmless from any actions, suits, liens, claims, damages,
expenses, losses and liability for damage to personal property or personal injury arising from
or attributable to any acts performed by Purchaser or its appointed agents or independent
contractors in exercising Purchaser's rights under this subsection 9.1 (including, without
limitation, any rights or claims of materialmen or mechanics to liens on the Property, but
excluding any matter to the extent arising out of the negligence or misconduct of Seller). This
agreement to indemnify Seller shall survive the Closing and any termination of this
Agreement.
9.2 Conditions Precedent/Termination Right. In addition to any other
termination right or other remedy specified herein and notwithstanding any provision of this
Agreement which may be interpreted to the contrary, if Purchaser is dissatisfied, for any
reason and in Purchaser's exclusive judgment, with the results of Purchaser's investigation and
study of the Property as set forth in Section 9.1 herein above, or the condition of the Property
is not acceptable to Purchaser for any reason whatsoever, then Purchaser may terminate this
Agreement by notifying Seller or Seller's Attorney of such termination on or before Date of
Closing, whereupon thereafter neither party hereto shall have any further rights, obligations,
or liabilities hereunder except to the extent that any right, obligation or liability set forth
herein expressly survives termination of this Agreement.
SECTION 10: PURCHASER'S ADDITIONAL CLOSING CONTINGENCY
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Purchaser's obligation to close the transaction contemplated by this Agreement and
purchase the Property is expressly subject and contingent upon obtaining on or before the
Closing Date all final, non -appealable governmental approvals and exercises of authority,
including, without limitation, (i) approval by the Council of Islamorada, Village of Islands, of
this Agreement and authorization and approval to purchase the Property, and (ii) approval by
the Board of County Commissioners of Monroe County, Florida authorizing and approving
this Agreement and the sale of the Property to Purchaser (collectively the "Governmental
Approvals").
Purchaser shall have up to and including the Closing Date to obtain the Governmental
Approvals. If the Governmental Approvals are not obtained on or before the Closing Date,
then Purchaser shall have the right to (i) terminate this Agreement by notifying Seller or
Seller's Attorney of such termination on or before the Closing Date or (ii) waive this
contingency. If this Agreement is terminated by Purchaser, thereafter neither party hereto
shall have any further rights, obligations, or liabilities hereunder except to the extent that any
right, obligation or liability set forth herein expressly survives termination of this Agreement.
The parties acknowledge and agree that Purchaser's right to terminate under this
Section 10 may be exercised upon the denial or any non -approval of any one of the
Governmental Approvals necessary to authorize the purchase the Property. By way of
example, if the Council of Islamorada, Village of Islands fails to approve the purchase of the
Property and this Agreement, Purchaser may exercise its right to terminate hereunder without
having to wait until the Closing Date to do so.
Seller consents to Purchaser processing the necessary Governmental Approvals and
agrees at Purchaser's request to execute any reasonable documentation necessary or
appropriate in connection with the attainment of the Governmental Approvals.
SECTION 11: CLOSING
Subject to the satisfaction of all conditions on or before Closing, the Closing Date shall
occur within thirty (30) days after the Governmental Approvals, unless the Closing Date is
otherwise extended pursuant to the provisions of this Agreement or by written agreement of
the parties. The Closing shall be held at the offices of Purchaser, at a time mutually
acceptable to both parties. If no such selection is timely made, the Closing shall be held at
10:30 a.m. local time on the Closing Date or at such other time or such other place as may be
mutually agreed in writing by the parties hereto.
11.1 Delivery: Possession. At Closing, Seller shall deliver to Purchaser the items
required of Seller under this Agreement, and Purchaser shall deliver to Seller the balance of
the Purchase Price (after making other adjustments, prorations and credits as provided herein)
and the other items required of Purchaser under this Agreement. Seller shall deliver
possession of the Property to Purchaser, subject only to the Permitted Exceptions at the time
of Closing. Risk of loss shall remain with Seller until Closing.
12 `v „_
11.2 Closing Costs.
11.2.1 Seller's Costs. Seller shall pay (i) any property transfer,
conveyance, sales and other taxes due on the transfer of the
Property, (ii) the fees and expenses of Seller's attorney, (iii) the
documentary stamps and surtaxes due on the Deed, if any, and
(iv) the cost of recording any corrective instruments.
11.2.2 Purchaser's Costs. Purchaser shall pay (i) any costs incurred by
Purchaser in preparing and performing its due diligence
investigations, (ii) the cost of the Title Commitment, (iii) the
premium for the Owner's Title Policy, (iv) the cost of recording
the Deed, (v) the cost of the Survey, and (vi) the fees and
expenses of Purchaser's Attorney.
11.2.3 Other Costs. Any other costs not specifically provided for in
subsection 11.2.1, subsection 11.2.2 or otherwise pursuant to the
terms of this Agreement shall be paid by the party who incurred
those costs, or if neither party is charged with incurring any such
costs, then by the party customarily assessed for such costs in the
place where the Property is located.
11.2.4 Survival. The provisions of this subsection 11.2 shall survive
the Closing and the delivery of the Deed.
11.3 Purchaser's Conditions to Closing. Purchaser's obligation to purchase the
Property or otherwise to perform any obligation provided in this Agreement is expressly
conditioned upon the fulfillment or satisfaction of each of the following conditions precedent
on or before the Closing Date (any of which may be waived only in writing by Purchaser in its
discretion):
11.3.1 The attainment of all Governmental Approvals necessary to
purchase the Property.
11.3.2 Seller shall have fully performed each undertaking and covenant
and agreement to be performed by Seller under this Agreement
including, but not limited to, delivery of all items and documents
required under Section 13 below;
11.3.3 Each representation and warranty made in this Agreement by Seller
shall be complete, true and accurate;
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11.3.4 The Owner's Title Policy shall be issued, or in lieu of issuance of
the foregoing at Closing, the Title Company shall have delivered a
"marked up" Title Commitment, subject only to the Permitted
Exceptions, with gap coverage, deleting all requirements and
deleting the standard exceptions;
11.3.5 Without additional cost or charge to Purchaser, the Intangible
Property shall be assigned to Purchaser;
11.3.6 Except as cured by Seller or otherwise approved or waived in
writing by Purchaser, no event shall have occurred which may
have an adverse effect on the physical condition of the Property;
11.3.7 No amendments, restatement, adoption or repeal of any Legal
Requirement of any Governmental Authority shall have occurred
which is applicable to the Property and has or could have an
adverse effect upon the value, use, operation, zoning,
development or condition thereof.
If any of the foregoing conditions are not satisfied at or before Closing, then in
addition to any remedy available to Purchaser under this Agreement, Purchaser may terminate
this Agreement by written notice to Seller, in which event the parties shall be released from all
obligations and liabilities under this Agreement except those that expressly survive termination
of this Agreement.
SECTION 12: ADJUSTMENTS, PRORATIONS AND CREDITS AT CLOSING
All adjustments, proration and credits provided to be made "as of the Closing Date"
shall each be made as of 11:59 p.m. local time on the date immediately preceding the Closing
Date. In each proration set forth below, the portion thereof allocable to periods beginning
with the Closing Date shall be credited to Purchaser, or charged to Purchaser, as applicable, at
Closing or, in the case of allocations made after Closing, upon receipt of such payments or
invoice as of the Closing Date. Except as may otherwise be specified herein, the following
items shall, as applicable, be prorated between Purchaser and Seller or credited to Purchaser
or Seller:
12.1 Property Taxes and Assessments.
12.1.1 Taxes. The parties acknowledge and agree that the Property is
being sold and purchased by exempt governmental entities and
that the parties will comply with, to the extent applicable, Section
196.295, Florida Statutes, regarding real estate taxes.
14 il
12.1.2 Special Assessments. Certified, confirmed and ratified special
assessments as of Date of Closing (and not as of the date of this
Agreement), shall be paid by Seller, including the Phase I
Wastewater Assessments due on the Property which shall be paid
by Seller at Closing. Pending liens and assessments as of Date of
Closing shall be assumed by Purchaser, including any Phase II
Wastewater Assessment imposed or levied by the Village on the
Property; provided, however, that where the improvement for
which the special assessment was levied, had been substantially
completed as of the date of this Agreement, such pending liens or
assessments shall be considered as certified, confirmed or ratified
and Seller shall, at Closing, be charged an amount equal to the
estimated assessment for the improvement.
12.2 Other Matters. Seller and Purchaser shall make such other adjustments and
apportionments as are expressly set forth in this Agreement and in Section 6.14. As set forth
in Section 6.14 herein above, Seller shall credit Purchaser as a reduction or adjustment in the
Purchase Price at Closing the sum of Twenty Thousand and No/100 Dollars ($20,000.00).
12.3 Survival. The provisions of this Section 12 shall survive the Closing and the
delivery of the Deed. In the event final figures have not been reached on any of the
adjustments, prorations or costs which are to be adjusted at or prior to Closing pursuant to this
Section 12, the parties shall close using adjustments and proration reasonably estimated by
Seller and Purchaser, subject to later readjustment when such final figures have been obtained.
The parties hereto agree that they shall seek to determine the amounts of all proration and
adjustments required hereunder on or before the Closing Date, if possible, and to the extent
not then obtainable within one (1) year of Closing.
SECTION 13: CONVEYANCES AND DELIVERIES AT CLOSING
13.1 Deed. At Closing, Seller shall convey the Property to Purchaser by a duly
executed and recordable deed in substantially the form attached hereto as Exhibit "B" (herein
referred to as "Deed"), subject only to the Permitted Exception.
13.2 Bill of Sale. At Closing, Seller shall also convey any personal property located
on the Property (as may be applicable and to the extent any personal property is located on the
Property and has been agreed to be conveyed by the parties) to Purchaser by a duly executed
Bill of Sale in substantially the form attached hereto as Exhibit "C" .
13.3 Affidavit of Title. At Closing, Seller shall execute and deliver to Purchaser
and to the Title Company a no -lien, possession and gap title affidavit in the form required by
the Title Company, together with such resolutions, affidavits, documents and certificates as the
Title Company may reasonably require to issue the Owner's Title Policy in accordance with
15
the terms of this Agreement, including a statement that Seller is not a "foreign person" as
defined in Section 1445 of the Internal Revenue Code and the regulations thereunder.
13.4 Closing_ Statement. At Closing, Seller and Purchaser shall execute and deliver
a Closing Statement which shall, among other items, set forth the Purchase Price, all credits
against the Purchase Price, the amounts of all prorations and other adjustments to the Purchase
Price and all disbursements made at Closing on behalf of Purchaser and Seller in accordance
with the terms of this Agreement.
13.5 Evidence of Authority. At Closing, Seller shall update Evidence of Authority
dated not more that five days before the Closing Date.
13.6 Physical Possession. At Closing, Seller shall deliver to Purchaser possession
of the Property free of any tenants, lessees, occupants, or other ownership or beneficial
interests in the Property.
13.7 Other Documents. At Closing, Seller and Purchaser shall deliver to each other
any other documents expressly required to be delivered or furnished pursuant to any other
provisions of this Agreement or reasonably required to carry out the purpose and intent of this
Agreement.
SECTION 14: NOTICES
All notices, consent, approvals and other communications which may be or are
required to be given by either Seller or Purchaser under this Agreement shall be properly
given only if made in writing and sent by (a) hand delivery, (b) electronic facsimile or other
transfer device with telephone or other confirmation of receipt, provided that a hard copy of
such notice is mailed by US first class mail, postage prepaid, on or before the next Business
Day following such telecopy delivery or (c) a nationally recognized overnight delivery service
(such as Federal Express, UPS Next Day Air or DHL Express), with all delivery charges paid
by the sender and addressed to the Purchaser or Seller, as applicable, as follows, or at such
other address as each may request in writing. Such notices shall be deemed received, (1) if
delivered by hand or overnight delivery service on the date of delivery and (2) if sent by
electronic transfer on the date transmission is confirmed by telephone or return electronic
transfer from the receiving party, provided that a hard copy of such notice is mailed by US
first class mail, postage prepaid, on or before the next Business Day following such telecopy
delivery. The refusal to accept delivery shall constitute acceptance and, in such event, the date
of delivery shall be the date on which delivery was refused. Said addresses for notices are to
be as follows:
IF TO SELLER:
Monroe County
Attention: Kevin Wilson
Monroe County Public Works & Engineering Division
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with a copy to:
Murray E. Nelson Government & Cultural Center
10250 Overseas Highway, Room 214
Key Largo, FL 33037
Telephone No.: (305) 292-4560 (Key West)
Telephone No.: (305) 453-8797 (Key Largo - direct)
Telecopy No. (305) 453-8798 (Key Largo)
Telecopy No. (305) 295-4321 (Key West)
Susan Grimsley, Esq.
Monroe County Attorney
1111 12th Street, Suite 408
Key West, Florida 33040.
Telephone No.: (305) 292-3470
Telecopy No.: (305) 292-3516
IF TO PURCHASER:
with a copy to:
Islamorada, Village of Islands
86800 Overseas Highway, Third Floor
Islamorada, Florida 33036
Attention: Village Manager
Telephone No.: (305) 664-6410
Telecopy No.: (305) 664-6464
Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
Attention: Lillian M. Arango, Esq.
Telephone No.: (305) 854-0800
Telecopy No.: (305) 854-2323
SECTION 15: CASUALTY AND CONDEMNATION
15.1 Casualty. Prior to the Closing Date, and notwithstanding the pendency of this
Agreement, the entire risk of loss or damage by fire or other casualty shall be borne and
assumed by Seller, except as otherwise provided in this subsection 15. Until the Closing has
occurred, Seller shall keep all insurance policies in effect with respect to the Property. If,
prior to the Closing Date, any part of the Property is damaged or destroyed by fire or other
casualty, Seller shall immediately notify Purchaser of such fact. If such damage or destruction
is material (as defined below), Purchaser shall have the option to terminate this Agreement
upon written notice to Seller given not later than thirty (30) days after receipt of Seller's
notice. For purposes hereof "material" shall be deemed to be any uninsured damage or
destruction to the Property (except that a casualty shall not be deemed uninsured solely
because all, or a portion of, the cost of the casualty is subjected to a deductible) or any insured
damage or destruction (i) where the cost of repair or replacement is estimated, in Purchaser's
good faith judgment, to be Fifty Thousand and No/100 Dollars ($50,000.00) or more for the
Improvements, or (ii) where the repair or replacement is estimated, in Purchaser's good faith
judgment, to require more than one hundred twenty (120) days to repair. If Purchaser does
not exercise this option to terminate this Agreement, or if the casualty is not material, neither
party shall have the right to terminate this Agreement, and the parties shall proceed to the
Closing pursuant to the terms hereof without modification of the terms of this Agreement and
without any reduction in the Purchase Price but, Seller, at Closing, shall assign to Purchaser,
and Purchaser shall be entitled to receive and keep, any and all insurance proceeds payable
with respect to such casualty, plus Seller shall pay over to Purchaser the sum of (a) any and all
insurance proceeds previously paid to Seller with respect to such casualty (other than amounts
expended by Seller for emergency repairs or for repairs which are approved in writing by
Purchaser) and (b) an amount equal to the deductible amount with respect to the insurance. In
such event, Seller shall not be obligated to repair or restore the Property. If Purchaser does
not elect to terminate this Agreement by reason of any casualty, Purchaser shall have the right
to participate in any adjustment of the insurance claim and, in such event, Purchaser and Seller
shall cooperate each with the other in good faith.
15.2 Condemnation. At Closing, Seller shall assign to Purchaser all of Seller's
right, title and interest in and to the beds of streets, roads, alleys, avenues and highways
abutting the Property and all of Seller's right, title and interest in and to all awards in
condemnation, or damages or any kind, to which Seller is entitled at the time of Closing, by
reason of any exercise of power of eminent domain with respect thereto or for the taking of
the Property or any part thereof or by reason of any other event affecting the Property which
gives rise to a damage claim against a third Party after the date hereof. Prior to the Closing
Date, if all or any portion of the Property is taken, or if access thereto is reduced or restricted
by eminent domain or otherwise (or if such taking, reduction or restriction is pending,
threatened or contemplated) (hereinafter a "Condemnation Proceeding"), Seller shall
immediately notify Purchaser of such fact. In the event that such notice related to the taking
of all or any portion of the Property, Purchaser shall have the option, in its sole and absolute
discretion, to terminate this Agreement upon written notice to Seller given not later than thirty
(30) days after receipt of Seller's notice; whereupon thereafter neither Party shall have any
rights, obligations or liabilities hereunder except with respect to those rights, obligations or
liabilities which expressly survive the termination of this Agreement. If Purchaser does not
elect to terminate this Agreement as herein provided, Seller shall pay to Purchaser any award
received by Seller prior to Closing and Purchaser shall have the right to participate with Seller
in any Condemnation Proceeding affecting the Property; provided, that in doing so Purchaser
shall cooperate with Seller in good faith.
SECTION 16: BROKERS
Each party represents to the other that such party has not incurred any obligation to any
broker, finder or real estate agent with respect to the purchase or sale of the Property. Each of
Seller and Purchaser warrants and represents to the other that such parry has not employed
(expressly or impliedly) any broker, agent or other such Person as to which a commission or
other such fee is or would become due or owing as a result of the purchase and sale
contemplated hereby and has made no agreement (express or implied) to pay any broker's
commission or other such fees in connection with the purchase and sale contemplated by this
Agreement. Each of Seller and Purchaser agrees to indemnify and defend the other against,
and to hold the other harmless of and from all claims, demands and liabilities (including
reasonable attorney's fees and expenses incurred in defense thereof) for any commission or
fees payable to, or claimed by, any broker, agent or other such Person arising out of the
employment or engagement of such Person employed (expressly or impliedly) by Seller of
Purchaser, as applicable, or with whom Seller or Purchaser, as applicable, has or is claimed to
have, made an agreement (express or implied) to pay a commission or other such fee;
provided, however, provided, however, that such indemnification obligations under this
Section 16 are subject to the provisions and monetary limitations of Section 768.28, Florida
Statutes. The representation, warranties, undertakings and indemnities of this Section 16 shall
survive the Closing hereunder and any termination of this Agreement.
SECTION 17: DEFAULT/REMEDIES
17.1 Seller's Default/Purchaser's Remedies. Notwithstanding any other remedy
provided for herein, if Seller defaults in the observance or performance of its covenants and
obligations hereunder, Purchaser may, at its option, terminate this Agreement or seek specific
performance of this Agreement.
17.2 Purchaser's Default/Seller's Remedies. If Purchaser defaults in the
observance or performance of its covenants and obligations hereunder, then Seller, as its sole
and exclusive remedy, shall (as an election of remedies) terminate this Agreement or seek
specific performance of this Agreement. Seller hereby waives, relinquishes and releases any
and all other rights and remedies, including but not limited to: (1) any right to sue Purchaser
for damages (2) any other right or remedy which Seller may otherwise have against Purchaser,
either at law, or equity or otherwise.
SECTION 18: ESCROW AGENT
18.1 Performance of Duties. The parties acknowledge and agree that no Earnest
Money or Deposit shall be required of Purchaser pursuant to this Agreement. Escrow Agent
undertakes to perform only such duties as may be expressly set forth in this Agreement and in
any amendment to this Agreement requiring Escrow Agent to perform any act or obligation.
Escrow Agent shall not be deemed to have any implied duties or obligations under or related
to this Agreement.
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18.2 Reliance. Escrow Agent may (i) act in reliance upon any writing or instrument
or signature which it, in good faith, believes to be genuine; (ii) assume the validity and
accuracy of any statement or assertion contained in such a writing or instrument; and (iii)
assume that any person purporting to give any writing, notice, advice or instructions in
connection with the provisions of this Agreement has been duly authorized to do so. Escrow
Agent shall not be liable in any manner for the sufficiency or corrections as to form, manner
of execution, or validity of any instrument deposited in escrow, nor as to the identity,
authority, or right of any person executing any instrument; Escrow Agent's duties under this
Agreement are and shall be limited to those duties specifically provided in this Agreement.
18.3 Right to Interplead. If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this Agreement, or about their respective rights and
obligations, or about the propriety of any action contemplated by Escrow Agent, Escrow
Agent may, but shall not be required to, file an action in interpleader to resolve the
disagreement; upon filing such action, Escrow Agent shall be released from all obligations
under this Agreement.
18.4 Attorney's Fees and Costs. In any suit between Purchaser and Seller wherein
Escrow Agent is made a party because of acting as Escrow Agent hereunder, or in any suit
wherein Escrow Agent interpleads the subject matter of the Escrow, Escrow Agent shall
recover reasonable attorney's fees and costs incurred with the fees and costs to be paid from
and out of the escrowed funds or equivalent and charged and awarded as court costs in favor
of the prevailing party. The parties hereby agree that Escrow Agent shall not be liable to any
party or person for misdelivery to Purchaser or Seller of items subject to this escrow, unless
such misdelivery is due to willful breach of this Agreement or gross negligence of Escrow
Agent.
18.5 Escrow Agent as Counsel for Purchaser. It is acknowledged that Escrow
Agent is counsel for Purchaser. It is agreed that Escrow Agent shall not be disabled or
disqualified from representing Purchaser, its council members, officers, directors or agents in
connection with any dispute or litigation which may arise out of or in connection with this
transaction or this Agreement as a result of Escrow Agent acting as the escrow agent under
this Agreement and the Seller, waives any claim or right to assert a conflict arising out of or in
connection with the foregoing.
SECTION 19: GENERAL PROVISIONS
19.1 Entire Agreement. This Agreement, and all the Exhibits referenced herein and
annexed hereto, contain the final, complete and entire agreement of the parties hereto with
respect to the matters contained herein, and no prior agreement or understanding pertaining to
any of the matters connected with this transaction shall be effective for any purpose. Except as
may be otherwise expressly provided herein, the agreements embodied herein may not be
amended except by an agreement in writing signed by the parties hereto.
20 p _
19.2 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Florida and venue shall be in Monroe County, Florida, Upper
Division.
19.3 Further Assurances. Seller and Purchaser each agrees to execute and deliver
to the other such further documents or instruments as may be reasonable and necessary in
furtherance of the performance of the terms, covenants and conditions of this Agreement.
This covenant shall survive the Closing.
19.4 Interpretation. The titles, captions and paragraph headings are inserted for
convenience only and are in no way intended to interpret, define, limit or expand the scope or
content of this Agreement or any provision hereto. If any party to this Agreement is made up
of more than one Person, then all such Persons shall be included jointly and severally, even
though the defined term for such party is used in the singular in this Agreement. This
Agreement shall be construed without regard to any presumption or other rule requiring
construction against the party causing this Agreement to be drafted. If any words or phrases
in this Agreement shall have been stricken out or otherwise eliminated, whether or not any
other words of phrases have been added, this Agreement shall be construed as if the words or
phrases so stricken out or otherwise eliminated were never included in this Agreement and no
implication or inference shall be drawn from the fact that said words or phrases were so
stricken out or otherwise eliminated.
19.5 Counterparts. This Agreement may be executed in separate counterparts. It
shall be fully executed when each party whose signature is required has signed at least one
counterpart even though no one counterpart contains the signatures of all of the parties of this
Agreement. Facsimile copies shall be deemed originals.
19.6 Non -waiver. No waiver by Seller or Purchaser of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by such party. No delay or
omission in the exercise of any right or remedy accruing to Seller or Purchaser upon any
breach under this Agreement shall impair such right to remedy or be construed as a waiver of
any such breach theretofore or thereafter occurring. The waiver by Seller or Purchaser of any
breach of any term, covenant or condition herein stated shall not be deemed to be a waiver of
any other breach, or of a subsequent breach of the same or any other term, covenant or
condition herein contained.
19.7 Severability. This Agreement is intended to be performed in accordance with
and only to the extent permitted by applicable law. If any provisions of this Agreement or the
application thereof to any Person or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the remainder of this
Agreement and the application of such provision to other Persons or circumstances shall not be
affected thereby, but rather shall be enforced to the greatest extent permitted by law.
21
19.8 Exhibits. The Exhibits referred in and attached to this Agreement are
incorporated herein in full by this reference.
19.9 Attorneys' Fees. In the event of any controversy, claim or dispute between the
parties arising from or relating to this Agreement (including, but not limited to, the
enforcement of any indemnity provisions), the prevailing party shall be entitled to recover
reasonable costs, expenses and attorneys' fees including, but not limited to, court costs and
other expenses through all appellate levels.
19.10 Business Days. If any date provided for in this Agreement shall fall on a day
which is not a Business Day, the date provided for shall be deemed to refer to the next
Business Day.
19.11 Time is of the Essence. Time is of the essence in this Agreement.
19.12 No Personal Liability of Council Members, Board Members,
Administrative Officials or Representatives of Parties. The parties acknowledge that this
Agreement is entered into by a municipal corporation as Purchaser and Monroe County as
Seller, and agree no individual council or board member, administrative official or
representative of either party shall have any personal liability under this Agreement or any
document executed in connection with the transactions contemplated by this Agreement.
19.13 Effective Date. For purposes of calculation of all time periods within which
Seller or Purchaser must act or respond as herein described, all phrases such as "the date of
this Agreement", "the date of execution of this Agreement" or any other like phrase referring
to the date of the Agreement, shall mean and refer to the "Effective Date" of this Agreement.
19.14 Radon Disclosure. Pursuant to Section 404.056(5), Florida Statutes, the
following disclosure is made. RADON GAS: "Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding radon
and radon testing may be obtained from your county public health unit. "
19.15 Waiver of Trial by Jury. SELLER AND PURCHASER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN
CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT
AND ANY OTHER DOCUMENT OR INSTRUMENT NOW OR HEREAFTER EXECUTED
AND DELIVERED IN CONNECTION THEREWITH.
22 dL�—
19.16 No Contract With Other Persons. Seller agrees not to enter into a contract for
the sale, lease, use or occupancy of the Property with any person or entity other than Purchaser
for so long as this Agreement is in effect.
19.17 Police/Regulatory Powers. Purchaser cannot, and hereby specifically does not,
waive or relinquish any of its regulatory approval or enforcement rights and obligations as it may
relate to regulations of general applicability which may govern the Property, any improvements
thereon, or any operations at the Property. Nothing in this Agreement shall be deemed to create
an affirmative duty of Purchaser to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other action in accordance with
its zoning and land use codes, administrative codes, ordinances, rules and regulations, federal
laws and regulations, state laws and regulations, and grant agreements. In addition, nothing
herein shall be considered zoning by Agreement.
19.18 Negotiated Agreement. The parties have substantially contributed to the
drafting and negotiation of this Agreement and this Agreement shall not, solely as a matter of
judicial construction, be construed more severely against one of the parties than any other. The
parties hereto acknowledge that they have thoroughly read this Agreement, including all exhibits
and attachments hereto, and have sought and received whatever competent advice and counsel
was necessary for them to form a full and complete understanding of all rights and obligations
herein.
19.19 No Recordation. Neither this Agreement nor any notice or memorandum of this
Agreement shall be recorded in any public records.
19.20 Merger. Unless expressly set forth herein, the terms and provisions of this
Agreement shall not survive the closing and such terms and provisions shall be deemed merged
into the Deed and extinguished at Closing.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
23
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed, as of the day and year set forth below their signatures.
ATTEST:
GGl4
Vill ge Clerk
Approved as to Form
and Legal Sufficiency:
Village Attorney
PURCHASER:
ISLAMORADA, VILLAGE OF ISLANDS, a
Florida municipal corporation
4,�Ok 6rJMA�
Edward Kocoms, Village Manager
Date Executed:
Attest: AmyMeavilin, Clerk of Circuit Court
Clerk of Court
Approved as to Form
rz�
County A ey
SELLER:
MONROE COUNTY, FLORIDA, a
political subdivision of the State of
Florida
By: MONROE COUNTY BOARD OF
COUNTY COM ISSIONERS
By:
Name/ George Netfgent
Title: Mayor / Chairman
Date Executed: May 15, 2013
COUNTY ATTORNEY
AppROVED AS To FORM'
�/►. GRIMSLEY
SUSA CQUNTY ATTORNEY
nsglaTAN��
1V
O
I ee
N
25
ESCROW AGENT:
Weiss Serota Helfman
Pastoriza Cole & Boniske, P.L.
By
Na
Tit
Date Executed: 5 —d Li
F:\400\436203\Purchase and Sale Agreement - Interesorts Investments\PSA 09-21-09 v2 (w Exh A Legal).doc
26
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Lots 1, 2 and 24, Block 11, of KEY HEIGHTS, SECTION TWO, according to the Plat
thereof, as recorded in Plat Book 3, Page 159, of the Public Records of Monroe County,
Florida
Parcel ID: 00417340-000000
27
*A ItI I1-49 U.%
FORM OF DEED
This Instrument Prepared By:
Susan Grimsley, Esq.
Monroe County, Assistant County Attorney
I I 1112`h Street, Fourth Floor
Key West, Florida 33040
After Recording Return to:
Lillian M. Arango, Esq.
Weiss Serota Helfinan Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
Parcel Identification Number: 00417340-000000
Alternate Key: 1513512
DEED
THIS DEED is made and executed this day of , 2013, by
MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida (the "Grantor"),
whose mailing address is 1100 Simonton Street, Key West, Florida 33040, and ISLAMORADA,
VILLAGE OF ISLANDS, a Florida municipal corporation (the "Grantee"), whose mailing
address is 86800 Overseas Highway, Islamorada, Florida 33036.
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby
grant, bargain, sell, alien, remise, release, convey and confirm unto Grantee the real property (the
"Property") located in Monroe County, Florida, and more particularly described as:
Lots 1, 2 and 24, Block 11, KEY HEIGHTS, SECTION TWO, according
to the Plat thereof, as recorded in Plat Book 3, Page 159, of the Public
Records of Monroe County, Florida.
SUBJECT TO:
All easements, conditions, covenants, restrictions and agreements of record,
provided that this instrument shall not reimpose same.
2. Real estate taxes for the year 2013 and all subsequent years, to the extent applicable
to the Property.
3. Existing applicable governmental building and zoning ordinances and other
28
3y'
governmental regulations.
TOGETHER with all the tenements, hereditaments and appurtenances belonging or in any
way appertaining to the Property, and all development rights belonging or appertaining to the
Property, including all transient motel units located on the Property.
TO HAVE AND TO HOLD the same in fee simple forever.
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed as of the day and
year first written above in its name by its Board of County Commissioners acting by the Chair or
Vice Chair of said Board.
Attest: Amy Heavilin, Clerk of Circuit Court
Monroe County, Florida
Deputy Clerk
Approved as to Form and
Legal Sufficiency:
County Attorney
GRANTOR:
MONROE COUNTY, FLORIDA, a
political subdivision of the State of Florida
By: MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
By: _
Name:
Title:
29
STATE OF FLORIDA )
SS.
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this day of
, 2013, by , as
of the BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, on
behalf of MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida, on
behalf of the County, who (check one) [ ] is personally known to me or [ ] has produced a Florida
driver's license as identification.
[SEAL]
Notary Public, State of Florida
Print, Type or Stamp Name of Notary Public
Commission No.
Commission Expires:
30
EXHIBIT "C"
FORM OF BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that MONROE COUNTY, FLORIDA
("Seller"), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) lawful money
of the United States, to it paid by the ISLAMORADA, VILLAGE OF ISLANDS, a Florida
municipal corporation ("Purchaser"), the receipt whereof is hereby acknowledged, has granted,
bargained, sold, transferred and delivered, and by these presents does grant, bargain, sell, transfer
and deliver unto the Purchaser, its successors and assigns, the following goods and chattels:
All of the tangible personal property of Seller used in connection with and located
in, on or at the real property located at 103 Key Heights Drive, Islamorada, Florida
(the "Property"), including, but not limited to, the personal property listed on
Exhibit "A" attached hereto (the "Personal Property").
TO HAVE AND TO HOLD the same unto the Purchaser, its successors and assigns
forever.
AND Seller does, for itself and its heirs, executors and administrators, covenant to and
with the Purchaser, its successors and assigns, that Seller is the lawful owner of the Personal
Property; that they are free from all encumbrances; that Seller has good right to sell the same
aforesaid.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the day of
2013.
SELLER:
MONROE COUNTY, FLORIDA, a political
Subdivision of the State of Florida
By: MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
By:
Name:
Title:
31
Attest: Amy Heavilin, Clerk of Circuit
Court
Monroe County, Florida
Deputy Clerk
Approved as to Form and
Legal Sufficiency:
County Attorney
STATE OF FLORIDA )
SS:
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this day of 2013
by , as of Board of County Commissioners
of Monroe County, Florida, on behalf of Monroe County, Florida, a political subdivision of the
State of Florida, who (check one) [ ] is personally known to me or [ ] has produced a
driver's license as identification.
My Commission Expires:
Notary Public
Print Name:
32
SELLER'S NO -LIEN. POSSESSION GAP AND FIRPTA AFFIDAVIT
STATE OF FLORIDA
SS:
COUNTY OF MONROE )
BEFORE ME, the undersigned authority, personally appeared
George R. Neugent (hereinafter referred to as "Affiant"), who by me being first duly
sworn, deposes and states that:
1. That Affiant is the Mayor/Chairman of the BOARD OF COUNTY
COMMISSIONERS, on behalf of MONROE COUNTY, FLORIDA, a political subdivision of the State of
Florida ("the County"), and has personal knowledge of the matters set forth herein and is authorized to
execute this Affidavit on behalf of the County.
2. That the County is the owner ("Owner) of fee simple title to the real property located in
Monroe County, Florida, more particularly described as:
Lots 1, 2 and 24, Block 11, KEY HEIGHTS, SECTION TWO, according to the plat thereof,
as recorded in Plat Book 3, Page 159, of the Public Records of Monroe County, Florida (the
"Property").
3. That there are no mechanic's liens under Chapter 713 of the Florida Statutes filed against the
Property or any portion thereof; that there have been no repairs, improvements or other work done to or labor,
materials or services performed upon the Property or any portion thereof for which any or all of the cost of
the same remains unpaid; and that no person, firm or corporation is entitled to a mechanic's lien against the
Property or any portion thereof under Chapter 713 of the Florida Statutes.
4. That County/Owner is in exclusive possession of the Property and no person, firm or
corporation has any interest, right or claim of possession, or contract right with respect to the Property or any
portion thereof which is not a matter of record in the Public Records of Monroe County, Florida, and there
are no facts known to Affiant which would give rise to such a claim being asserted against the Property or
any portion thereof.
5. That there are no unsatisfied judgments or any federal, state or county tax deficiencies,
which are alien against the Property or any portion thereof.
6. That the Property is free and clear of all mortgages, liens, taxes, assessments, fees, and
encumbrances whatsoever, except for: (a) real estate taxes for 2013 and subsequent years, to the extent
applicable to the Property; and (b) those matters appearing as exceptions to title in the title commitment
issued on March 31, 2013, by Chicago Title Insurance Company (the "Title Company").
7. That there are no actions or proceedings now pending in any state or federal court to which
the County is a party which would affect the title to the Property or any portion thereof.
8. That to Affiant's knowledge, there are no unrecorded easements or claims of easements
affecting the Property or any portion thereof.
9. Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of a U.S. real
property interest must withhold tax if the transferor (seller) is a foreign person. To inform the Buyer that
W:\103 Key Heights Drive\BOCC documents\35F589902-Seller's Affidavit - County Form (2) 05062013.doc
1
withholding of tax is not required upon the disposition of a U.S. real property interest by the County, Affiant
hereby certifies the following:
9.1. The County is not a foreign person, foreign corporation, foreign partnership, foreign
trust, or foreign estate for the purposes of U.S. income taxation (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations).
9.2. Affiant understands that this certification be disclosed to the Internal Revenue
Service by the transferee and that any false statement contained herein could be punished by fine,
imprisonment, or both.
10. That there are no matters pending against the County that could give rise to a lien that would
attach to the Property or any portion thereof between March 31, 2013, and the recording of the Deed from the
County to Islamorada, Village of Islands, a Florida municipal corporation ("Grantee'), and that the County
has not and will not execute any instrument that would adversely affect the title to or transfer of the Property
or any portion thereof from the County.
Affiant recognizes that Grantee and the Title Company, are materially relying on the veracity of the
contents of this Affidavit, and that this Affidavit is being given for the purpose of inducing (a) Grantee to part
with valuable consideration and consummate the purchase of the Property from the County, and (b) the Title
Company to issue a policy of title insurance to Grantee in connection with the conveyance of the Property
from the County to Grantee. In this regard, Affiant represents on behalf of the County that the statements
contained herein are true and correct in all respects.
FURTHER AFFIANT SAYETH NAUGHT.
` 'C_
ATTEST:` A»ny Heavilin, Clerk of Circuit Court
Deputy Cle
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
County Attorney
'--M 441 ZZ, 02�'(3
MONROE COUNTY, FLORIDA, a political
subdivision of the State of Florida
By: MONROE COUNTY BOARD OF
COUNTY CO MISSION a
By: '�e_ *e_ , )—N e: George R. Neugent
Title: Mayor/Chairman
W:\103 Key Heights Drive\BOCC documents\35F589902-Sellers Affidavit - County Form (2) 05062013.doc
2
STATE OF FLORIDA )
SS.
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this 7th day of June ,
2013, by George R. Neugent , as Mayor/Chairman of the BOARD OF COUNTY
COMMISSIONERS, of MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida, on
behalf of the County, who (check one) [ ] is personally known to me or [ ] has produced a Florida driver's
license as identification.
[SEAL]
Notary Public, We of Florida
Print, Type or Stamp Name of Notary Public
Commission No.
Commission Expires:
NPor).
MAYRA TEMOS
Notary Pubic - State of florid&
MyComm.EWmM&y19,201t1CommKsioo # EE 16IS90
Bonded Through Naioml Notxy Am
1 0 W IMP MP'l
W:\103 Key Heights Drive\BOCC documents\35F589902-Seller's Affidavit - County Form (2) 05062013.doc
3
This Instrument Prepared By:
Susan Grimsley, Esq.
Monroe County, Assistant County Attorney
I I 1112`h Street, Fourth Floor
Key West, Florida 33040
After Recording Return to:
Lillian M. Arango, Esq.
Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
Parcel Identification Number: 00417340-000000
Alternate Key: 1513512
DEED
THIS DEED is made and executed this 15th day of may , 2013, by
MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida (the "Grantor"),
whose mailing address is 1100 Simonton Street, Key West, Florida 33040, and ISLAMORADA,
VILLAGE OF ISLANDS, a Florida municipal corporation (the "Grantee"), whose mailing address
is 86800 Overseas Highway, Islamorada, Florida 33036.
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby
grant, bargain, sell, alien, remise, release, convey and confirm unto Grantee the real property (the
"Property") located in Monroe County, Florida, and more particularly described as:
Lots 1, 2 and 24, Block 11, KEY HEIGHTS, SECTION TWO, according
to the Plat thereof, as recorded in Plat Book 3, Page 159, of the Public
Records of Monroe County, Florida.
SUBJECT TO:
1. All easements, conditions, covenants, restrictions and agreements of record, provided that
this instrument shall not reimpose same.
2. Real estate taxes for the year 2013 and all subsequent years, to the extent applicable to the
Property.
3. Existing applicable governmental building and zoning ordinances and other governmental
regulations.
TOGETHER with all the tenements, hereditaments and appurtenances belonging or in any
way appertaining to the Property, and all development rights belonging or appertaining to the
Property, including all transient motel units located on the Property.
Pursuant to Rule 12B-4.013(5), Florida Administrative Code, this conveyance is not
subject to the payment of documentary stamp taxes, as both Grantor and Grantee are exempt
parties.
TO HAVE AND TO HOLD the same in fee simple forever.
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed as of the day and
year first written above in its name by its Board of County Commissioners acting by the Chair or
Vice Chair of said Board.
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v� r.�. � ° '�• W r� r
Atxest A�yHe
`�toe�o{tity
Deputy Clerk
Clerk of Circuit Court
, Florida
Approved as to Form and
Legal Sufficiency:
County Attorney
.s'-Z'Z -aal3
GRANTOR:
MONROE COUNTY, FLORIDA, a
political subdivision of the State of Florida
By: MONR E COUNTY BOARD OF
COUNTY OMMISSION
By:
N e: George R. Neugent
Title: Mayor/Chairman
STATE OF FLORIDA
SS.
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this 7th day of
June ,2013,by George R. Neugent gas Mayor/Chairman
of the BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, on
behalf of MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida, on behalf
of the County, who (check one) [ ] is personally known to me or [ ] has produced a Florida
driver's license as identification.
[SEAL]
]
Notary Publi State of Flon
Print, Type or Stamp Name of Notary Public
Commission No.
Commission Expires:
MAYRA TEZANOS
=� Notary Public - State M HaiOa
• My Comm. EXPW" May It, 2016
tT CommiaeiN i EE 1SS590
' '•`• Bonded Th►oughtatiw Noaryibex.