Item O10
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 19. 2004
Division: County Administrator
Bulk Item: Yes
No -L
Department: County Administrator
AGENDA ITEM WORDING: Approval of Second Amendment to Agreement for the purchase
of the D & J Industries building on Big Pine Key.
ITEM BACKGROUND: Additional time is necessary to complete due diligence activities
associated with this property. Staff is in the process of conducting a structural analysis
addressing concrete spalling; the Seller is in the process of freeing a frozen plumbing valve so
that the plumbing inspection can be completed; and the County's consultant is in the process
of completing a Phase 2 environmental site assessment.
PREVIOUS RELEVANT BOCC ACTION: On February 18, 2004 the Board entered into a
contract to purchase the property. On April 21, 2004 the Board approved extending the
contract 60 days.
CONTRACT I AGREEMENT CHANGES: Extension of due diligence period.
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: $ 0
COST TO COUNTY: ~
BUDGETED: Yes
No _X_
SOURCE OF FUNDS: Sale of Public Service Bldg.
REVENUE PRODUCING: Yes No AMOUNT PER MONTH YR
- - ~dr\f/~tv
APPROVED BY: County A~1 ~u~~ ,/k Management____
DIVISION DIRECTOR APPROVAL: _~~>:"..f- '_. _-----
James L. Roberts, County Administrator
DOCUMENTATION: Included X
To Follow_
_ Not Required
()/C
.
DISPOSITION:
AGENDA ITEM #
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Contract with:
CONTRACT SUMMARY
Contract #
Beal Bank, S.S.B.
Effective Date: 05 /20 / 04
Expiration Date: 07 /!!L/ 04
Contract Purpose/Description: Approval of Second Amendment to Agreement for the
purchase of the D & J Industries building on Big Pine Key. Additional staff
time is necessary to complete due diligence activities associated with this
property.
Contract Manager:
Mark Rosch
(Name)
5180
(Ext. )
Land Authority
(Department)
for BOCC meeting on 05 / 19 / 04
Agenda Deadline: 05 I 04 /04
CONTRACT COSTS
Total Dollar Value of Contract: $ 1,070,728.50 Current Year Portion: $
Budgeted? Yes No~ Account Codes:_
Grant: $
County Match: $
1,070,728.50
Estimated Ongoing Costs: $
(Not included in dollar value above)
ADDITIONAL COSTS
Iyr For:
(eg. maintenance, utilities, janitorial, salaries, etc.)
Division Director
CONTRACT REVIEW
Changes
Date In Needed Review
/ Yes No ...
/
~/.!...'J-, 0 l{ ( ) vf
Date Out
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Risk Management :> /K/~ (
O.M.B.lPurchasing -2-' lE-'C!:/ ( ) (
County Attorney ~/ml?f ( )
Comments:
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OMB Form Revised 8/30/95 MCP #2
SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this
"Amendment") is dated effective as of May 12, 2004 and is entered into by and between BEAL
BANK, S.S.B., a state savings bank organized under the laws of the State of Texas ("Seller"), as
seller, and Monroe County Board of County Commissioners of Monroe County, Florida, a
political subdivision of the state of Florida ("Buyer"), as buyer.
RECITALS
A. Buyer and Seller executed that certain Agreement of Purchase and Sale, dated
February 18, 2004 (the "Agreement"), concerning the purchase and sale of that certain real
property situated in Big Pine Key, Monroe County, Florida, as more particularly described in the
Agreement (the "Property").
B. The Buyer and Seller then entered into that certain First Amendment to
Agreement of Purchase and Sale, dated April 5, 2004.
C.
herein.
The parties wish to amend the Agreement in accordance with the terms contained
D. All capitalized terms used herein but not defined herein shall have the same
meaning as is set forth in the Agreement for such terms.
AGREEMENT
1. Conditions Period. Amending Section 2.1 of the Agreement, the Conditions
Period shall expire at 5:00 p.m. (Dallas, TX time) on July 19,2004.
2. Closine: Date. Amending Section 8.2 of the Agreement, Buyer and Seller agree
that the Closing Date shall be on or before August 19, 2004. Such date may
not be extended without the prior written approval of both Buyer and Seller.
3. Title Period. Amending Section 3.1 of the Agreement, Buyer agrees and
confirms that the Title Period has expired, and that the current condition of the
title is acceptable to Buyer. Buyer further agrees that the Buyer does not any
right to terminate the Agreement pursuant to Section 3.1.
4. Counterparts. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument.
Second Amendment to Agreement of Purchase and Sale
Big Pine Key
5. Facsimile Signatures. Facsimile signatures hereon shall be treated for all
purposes as original signatures.
6. Except as amended hereby, the Agreement shall be and continue in full force
and effect.
DATED as of the date first above written.
SELLER:
BEAL BANK, S.S.B.,
a state savings bank organized under the laws
of the State of Texas
By:
Name:
Title:
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BUYER:
MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Name:
Title:
",:-: '. ".\.ry Ai'IOh1';:;\
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Second Amendment to Agreement of Purchase and Sale
Big Pine Key
2
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this
"Amendment") is dated effective as of April S, 2004 and is entered into by and between BEAL
BANK, S.S.B., a state savings bank organized under the laws of the State of Texas ("Seller"), as
seller, and Monroe County Board of County Commissioners of Monroe County, Florida, a
political subdivision of the state of Florida ("Buyer"), as buyer.
RECIT ALS
A. Buyer and Seller executed that certain Agreement of Purchase and Sale, dated
February 18, 2004 (the "Agreement"), concerning the purchase and sale of that certain real
property situated in Big Pine Key, Monroe County, Florida, as more particularly described in the
Agreement (the "Property").
B.
herein.
The parties wish to amend the Agreement in accordance with the terms contained
C. All capitalized terms used herein but not defined herein shall have the same
meaning as is set forth in the Agreement for such terms.
AGREEMENT
1 . Conditions Period. Amending Section 2.1 of the Agreement, the Conditions
Period shall expire at 5:00 p.m. (Dallas, TX time) on May 20,2004.
2. Countetparts. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which when taken together shall constitute
one and the same instrument.
3. Facsimile SilZIlatures. Facsimile signatures hereon shall be treated for all
purposes as original signatures.
4. Except as amended hereby, the Agreement shall be and continue in full force and
effect.
(SIGNATURE PAGE FOLLOWS)
First Amendment to Agreement of Purchase and Sale
Dig Pine Key
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DATED as of the date first above written.
SELLER:
BEAL BANK, S.S.B.,
a state savings bank organized under the laws
of the State of Texas
By:
Name:
Title:
BUYER:
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MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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By:
Name: David P. Rice
Title: Mayor Pro Tem
.\,lQ'IROE C()UNr\' AHeRNE
I~PPROVED AS T
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First Amendment to Agreement of Purchase and Sale
Big Pine Key
2
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
BEAL BANK, S.S.B.
AND
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Agreement of Purchase and Sale
Big Pine Key
DALLAS4 649839v4 2on2-OO747
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") dated February ~, 2004
("Effective Date") is made and entered into by and between Beal Bank, S.S.B., a state savings bank organized under
the laws of the State of Texas ("Seller"), as seller, and the Monroe County Board of County Commissioners of
Monroe County, Florida, a political subdivision of the State of Florida ("Buyer"), as buyer.
RECIT AL
Seller desires to sell the Property (as dermed in Section 1.2 below) to Buyer, and Buyer desires to purchase
the Property from Seller, all on the tenns and conditions set forth in this Agreement.
NOW, THEREFORE, Seller and Buyer hereby agree as rolIows:
ARTICLE I
PURCHASE AND SALE OF PROPERTY
Section 1.1 Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, subject to
the tenns, covenants and conditions set forth herein, all of Seller's right, title and interest in and to those certain
tract(s) or parcel(s) of land, cormnonly known as the D & J Industries property situated on Big Pine Key, Monroe
County, Florida, as more particularly descnbed in Exhibit "A" attached hereto and made a part hereof for aU
purposes (the "Land"), together with all of Seller's right, title and interest, if any, in and to the following:
(a) all rights, privileges and easements appurtenant to Seller's interest in the Land, if any,
(collectively, the "Appurtenances");
(b) all improvements and fixtures located on the Land, if any, as well as all buildings and
structures presently located on the Land, including, without limitation, all apparatus, equipment and
appliances used in connection with the operation or occupancy of the Land or any of the foregoing
improvements, such as heating and air conditioning systems and facilities used to provide any utility,
refrigeration, ventilation, garbage disposal or other services, and all on-site parking, if any (collectively, the
"Improvements").
Section 1.2 The Prooerty. The Land and all of Seller's right, title and interest, if any, in and to the
items referred to in subparagraphs (a) through (b) above are collectively referred to herein as the "Property."
Section 1.3
Purchase Price and Deposit.
(a) The purchase price of the Property is One Million Fifty Thousand and No/tOO U.S.
DoHan (SI,050,OOO.OO) (the "Purchase Price") and shall be paid by Buyer to Seller by wire transfer in
inunediately available funds at the closing of the purchase and sale contemplated hereunder (the
"Closing").
Buyer has deposited in escrow with Kaufman Dickstein & Grunspan, P.A., Wachovia Financial Center, Suite 4650,
200 South Biscayne Boulevard, Miami, Florida 33131, Attention: Alan Grunspan, Esq. (escrow) (Telephone
No. 305-372-5200) (the "Escrow Agent"), a cash deposit in immediately available funds in the amount of Ten and
No/lOO U.S. Dollars (SIO.OO) (such deposit and any interest thereon and any additions thereto, the "Deposit"). The
Deposit shall be held in a non-interest bearing account. Except as otherwise provided in this Agreement, the
DepO';'(:( hocome oon-refuodabl. npon tho ",,""hon of tho Condihon. Pmod (oo do...,. "'low). CJI
Seller's initials Buyer's initials
Agreement of Purchase and Sale
Big Pine Key
DALLAS4 649839\-4 20722-00747
Section 1.4 Title to the Property. At the Closing, Seller shall convey, transfer and assign to Buyer
title to the Land and Improvements, subject to the Permitted Exceptions, as defined below, by a duly executed and
acknowledged Special Warranty Deed in the form attached hereto as Exhibit "B" and made a part hereof for all
purposes.
ARTICLE II
CONDITIONS
Section 2.1 Conditions Period. During the period (the "Conditions Period") from the Effective Date
until 5:00 p.rn. (Dallas, Texas time) on the day that is sixty (60) days after the Effective Date (the "Conditions
Period"), Buyer, or its consultants, shall have the right to conduct due diligence with respect to the Property.
During the Conditions Period, Seller shall make the Property available to Buyer and its agents, consultants and
engineers for such inspections and tests as Buyer deems appropriate. Prior to its entry onto the Property, Buyer shall
provide Seller certificates of insurance showing such coverages and amounts of insurance as Seller shall reasonably
require. In the event that Buyer deems it necessary to perform any drilling or soil tests on the Property prior to the
expiration of the Conditions Period, Buyer shall provide written notice to Seller requesting permission from Seller to
take soil samples from or drill soil borings into the Property and such notice shan state the location on the Property
where Buyer would like to drill soil borings or take soil samples. Seller may refuse to permit Buyer to take soil
samples or drill soil borings into the Property in its sole discretion and shall notify Buyer of such denial of
permission in writing. In the event Seller denies Buyer permission to take soil samples from or drill soil borings into
the Property at the location(s) requested, Buyer may terminate this Agreement by providing written notice to Seller
prior to the expiration of the Conditions Period and in such event neither party shall have any further rights or
obligations hereunder, except for the indemnification obligations provided for in this Section 2.1 and Section 6.1 and
Section 9.2 below, all of which shall survive the Closing or, if the purchase and sale is not consummated, any
termination of this Agreement. Prior to acquiring the Property, Buyer shall use and disclose information it obtains
about the Property solely in connection with its purchase evaluation, except as otherwise required by Florida law.
Buyer shaIl not disclose any such information to any third party, except as otherwise required by Florida law. Buyer
hereby agrees to (a) restore the Property to its previous condition promptly following the completion of each such
inspection and/or test, and (b) indemnify and hold Seller harmless from and against all loss, cost or damage to the
Property or actually incurred by Seller arising out of any inspection of or test relating to any of the Property
performed by Buyer or its agents. engineers Or consultants; however Buyer shall have no restoration nOr
indenmification obligations with respect to any conditions that existed prior to Buyer's inspection and/or testing
which were not caused by Buyer. If, during the course of Buyer's review of the condition and attributes of the
Property during the Conditions Period, Buyer in Buyer's sole discretion determines that the Property is not
acceptable for any reason, or no reason at aD, Buyer may terminate this Agreement by delivering written notice to
Seller prior to the expiration of the Conditions Period. In the event Buyer shall deliver to Seller on Or before the
expiration of the Conditions Period written notice of Buyer's election to terminate this Agreement pursuant to this
Section 2.1, neither party shall have any further rights or obligations hereunder, except for the indemnification
obligations provided for in this Section 2.1 and Section 6.1 and Section 9.2 below, al1 of which shall survive the
Closing or, if the purchase and sale is not consummated, any termination of this Agreement. The indemnity
obligations contained in this Section 2.1 shaD survive the Closing or any termination of this Agreement. Within five
(5) days after the Effective Date, Seller shall provide the following items to Buyer, if such items are in Seller's files:
(a> any survey of the Property that Seller has in its mes, if any;
(b) any environmental report relating to the Property, if any in Seller's files; and
( c) copies of any plans and specifications relating to the Property, if any in Seller's files.
DALlAS4 649839v4 20722-00747
2
Agreement of Purchase and Sale
Big Pine Key
ARTICLE III
TITLE
Section 3.1 Preliminarv Title Reoort. Buyer shall be solely responsible for obtaining a preliminary
title report ("Title Report") relating to the Property which is desired by Buyer and the cost of any such Title Report
shall be paid for by Buyer. Buyer shall provide a copy of the Title Report and any exception documents to Seller
upon Buyer's receipt of same. Any and all matters shown on the Title Report and any matters which would be
disclosed by a visual inspection and/or accurate survey of the Property are referred to herein as the "Permitted
Exceptions. "
Section 3.2 Owner's Title Insurance Policv for the PrODCrtv. Buyer shall be solely responsible for
obtaining any title insurance policy ("Title Policy") for the Property which is desired by Buyer and the cost of any
such Title Policy shall be paid for by Buyer.
Section 3.3 Seller's Disclosure. At the time of execution of this Agreement, Buyer acknowledges that
Seller has advised and hereby advises Buyer that Buyer should have the Title Report examined by an attorney of
Buyer's own selection.
Section 3.4 Survey. Buyer shall be solely responsible for obtaining any survey of the Land which is
desired by Buyer and the cost of any such survey shall be paid for by Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES,
COVENANTS, AND INDEMNIFICATION
Section 4.1 ReoresentatioDS and Warranties of Seller. Seller hereby makes the following
representations and warranties, which representations and warranties shall be true and correct as of the date of
execution of this Agreement and as of the Closing Date:
(a) Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed any
voluntary petition in bankruptcy or suffered the filing of an involuntary petition by Seller's creditors, (Hi)
suffered the appointment of a receiver to take possession of an. or substantially all, of Seller's assets, (iv)
suffered the attachment or other judicial seizure of all, or substantially all, of Seller's assets, (v) admitted in
writing its inability to pay its debts as they come due or (vi) made an offer of settlement, extension or
composition to its creditors generally.
(b) Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code
of 1986, as amended (the "Code") and any related regulations.
(c) This Agreement has been duly authorized, executed and delivered by Seller.
(d) Except as previously disclosed to Buyer, Seller has not received any written notices from
any governmental authority with jurisdiction over the Property that the Property is in violation of any
environmental laws applicable to the Property.
SELLER ACQUIRED THE PROPERTY THROUGH FORECLOSURE AND CONSEQUENTLY
SELLER HAS LlTILE, IF ANY, KNOWLEDGE OF THE PHYSICAL OR ECONOMIC CHARACTERISTICS
OF THE PROPERTY. ACCORDINGLY, SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE
ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED,
WITH RESPECT TO TIlE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, ZONING, A V AILABILITY OF WATER OR OTHER UTILITIES, SOIL CONDITIONS,
TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, OPERATING HISTORY OR
DALLAS4 6498J9v4 20722-00747
3
Agreement of Purchase and Sale
Big Pine Key
PROJECTIONS, V ALUA TION, GOVERNMENTAL APPROV ALS, GOVERNMENTAL REGULATIONS, THE
TRUTH, ACCURACY OR COMPLETENESS OF THE ITEMS OR ANY OTHER INFORMATION PROVIDED
BY OR ON BEHALF OF SELLER TO BUYER OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL
ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS." BUYER HAS NOT RELIED
UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR
WARRANTY OF SELLER WITH RESPECT TO THE PROPERTY. BUYER WILL CONDUCT SUCH
INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY TO SATISFY ITSELF AS
TO THE CONDmON OF lHE PROPERTY AND WILL REL Y SOLELY UPON SAME AND NOT UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER. UPON CLOSING, BUYER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS
AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED
BY BUYER'S INVESTIGATIONS. BUYER, UPON CLOSING, HEREBY WAIVES, RELINQUISHES AND
RELEASES SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT (I.E., NEGLIGENCE AND STRICT LIABILITY)), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT
HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT
OF ANY CONSTRUCTION DEFECfS, PHYSICAL AND ENVIRONMENTAL CONDITIONS, THE
VIOLATION OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER MA TIERS REGARDING THE
PROPERTY. BUYER, UPON CLOSING, SHALL AUTOMATICALLY INDEMNIFY AND HOLD SELLER
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT (I.E., NEGLIGENCE AND STRICT LIABILITY)), LOSS,
DAMAGE, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS)
OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, FIXED OR CONTINGENT,
ASSERTED AGAINST OR INCURRED BY SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF
THE VIOLATION OF ANY APPLICABLE LAWS PERTAINING TO ANY ADVERSE PHYSICAL OR
ENVIRONMENTAL CONDITION PLACED OR OCCURRING ON THE PROPERTY AFTER TIlE CLOSING
DATE. SHOULD ANY CLEAN-UP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR
OlliER ENVIRONMENTAL CONDITIONS ON TIlE PROPERTY BE REQUIRED AFTER THE CLOSING
DATE, IT IS HEREBY UNDERSTOOD AND AGREED THAT SUCH CLEAN-UP, REMOVAL OR
REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE
COST AND EXPENSE OF BUYER. THE TERMS, CONDITIONS, OBLIGATIONS AND INDEMNITIES OF
THIS SECTION 4.1 SHALL EXPRESSLY SURVIVE TIlE CLOSING AND NOT MERGE TIlEREIN.
AS USED HEREIN, THE TERM "HAZARDOUS SUBSTANCES" SHALL MEAN ANY SUBSTANCE
WHICH IS OR CONTAINS (I) ANY "HAZARDOUS SUBSTANCE" AS NOW OR HEREAFTER DEFINED IN
~101(I4) OF TIlE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
ACT OF 1980, AS AMENDED (42 U.S.C. ~9601 ETSEQ.) ("CERCLA") OR ANY REGULATIONS
PROMULGATED UNDER CERCLA; (11) ANY "HAZARDOUS WASTE" AS NOW OR HEREAFTER
DEFINED IN THE RESOURCE CONVERSATION AND RECOVERY ACT (42 U.S.C. ~6901 ETSEQ.)
("ReRA") OR REGULATIONS PROMULGATED UNDER RCRA; (III) ANY SUBSTANCE REGULATED BY
TOXIC SUBSTANCES CONTROL ACT (15 U.S.C. ~2601 ETSEQ.); (IV) GASOLINE, DIESEL FUEL, OR
OTHER PETROLEUM HYDROCARBONS; (V) ASBESTOS AND ASBESTOS CONTAINING MATERIALS
IN ANY FORM, WHETHER FRIABLE OR NON-FRIABLE; (VI) POL YCHLORINA TED BIPHENYLS; (VII)
RADON GAS AND MOLDS; AND (VIII) ANY ADDITIONAL SUBSTANCES OR MA TERlALS WHICH ARE
NOW OR HEREAFTER CLASSIFIED OR CONSIDERED TO BE HAZARDOUS OR TOXIC UNDER ANY
APPLICABLE FEDERAL OR STATE LA WS RELATING TO ANY OF THE PROPERTY. HAZARDOUS
SUBSTANCES SHALL INCLUDE, WITHOUT LIMITATION, ANY SUBSTANCE, THE PRESENCE OF
WHICH ON THE PROPERTY, (A) REQUIRES REPORTING, INVESTIGATION OR REMEDIATION UNDER
APPLICABLE LAW, (B) CAUSES OR TIlREATENS TO CAUSE A NUISANCE ON THE PROPERTY OR
ADJACENT PROPERTY OR POSES OR THREATENS TO POSE A HAZARD TO THE HEALTH OR SAFETY
OF PERSONS ON THE PROPERTY OR ADJACENT PROPERTY; OR (C) WHICH, IF IT EMANATED OR
MIGRA TED FROM THE PROPERTY, COULD CONSTITIJTE A TRESPASS.
4
Agreement of Purchase and Sale
Big Prne Key
DALLAS4 64<J839\'4 20722-00747
BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MAITERS THAT ENABLE BUYER TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. FURTHER,
BUYER ACKNOWLEDGES THAT IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO
SELLER WITH ~TO lHIS AGREEMENT. i 1
Buyer's initials
Seller's initials
Section 4.2 Reoresentations and Warranties of Buver. Buyer hereby makes the following
representations and warranties, which representations and warranties shall be true and correct as of the date of
execution of this Agreement and as of the Closing Date:
(a) lbis A~eement (i) has been duly executed and delivered by Buyer, (ii) is the legal, valid
and binding obligation of Buyer, and (Hi) does not violate any provision of any agreement or judicial order
to which Buyer is a party or to which Buyer is subject. All documents to be executed by Buyer which are
to be delivered to Seller at Closing (x) at the time of Closing will be duly executed and delivered by Buyer,
(y) at the time of Closing will be legal, valid and binding obligations of Buyer, and (z) at the time of
Closing will not violate any provision of any agreement or judicial order to which Buyer is a party or to
which Buyer is subject.
(b) Buyer has not (i) made a general assignment for the benefit of creditors, (ii) filed any
voluntary petition in bankruptcy or suffered the f1ling of an involuntary petition by Buyer's creditors, (iii)
suffered the appointment of a receiver to take possession of all, or substantially all, of Buyer's assets, (iv)
suffered the attachment or other judicial seizure of all, or substantially all, of Buyer's assets, (v) admitted in
writing its inability to pay its debts as they come due or (vi) made an offer of settlement, extension or
cOIq)Osition to its creditors generally.
Section 4.3 Survival of Representations and Warranties. The representations and warranties of Seller
and Buyer contained herein shall survive the Closing for a period of one (1) year after the Closing; provided, that if
a party notifies the other party during such one-year period that any representation or warranty of such other party
has been breached during such one-year period, then the notifying party shall have until the later of (a) a period of
six (6) months following the date of such notification of the notifying party and (b) the expiration of such one-year
period in which to initiate a lawsuit against the other party with respect to such a breach. Any claim that a party
may have at any time against the other party for breach of any such representation or warranty, whether known or
unknown, which is not asserted by written notice to the breaching party within such one-year period shall not be
valid or effective, and the breaching party shall have no liability with respect thereto.
ARTICLE V
IntentionaDy Deleted
ARTICLE VI
BROKERS AND EXPENSES
Section 6.1 Broker. The parties represent and warrant to each other that, with the exception of a
commission in the amount equal to six percent (6%) of the Purchase Price, to be paid by Seller to American
Caribbean Real Estate, Middle Keys (the "Broker"), such commission being due and payable only in the event the
sale of the Property pursuant to this Agreement actually closes in accordance with the terms hereof and the Purchase
Price is unconditionally paid to Seller, no broker or finder was instrumental in arranging or bringing about this
transaction and that there are no claims or rights for brokerage commissions or finder's fees in connection with the
transaction contemplated by this Agreement. If any person (other than Broker) brings a claim for a Commission or
tinder's fee based upon any contact, dealings or communication with Buyer or Seller, then the party through whom
Agreement of Purchase and Sale
Big Pine Key
5
DALLAS4 Cl49839v4 20722-00747
such person makes his claim shall defend the other party (the "Indemnified Party") from such claim, and shall
indemnify the Indemnified Party and hold the Indemnified Party harmless from any and all costs, damages, claims,
liabilities or expenses (including, without limitation, reasonable attorneys' fees and disbursements) incurred by the
Indemnified Party in defending against the claim. The provisions of this Section 6.1 shall survive the Closing or, if
the purchase and sale is not consununated, any termination of this Agreement.
Section 6.2 Expenses. Except as provided in Section 8.4(b) below or elsewhere in this Agreement,
each party hereto shall pay its own expenses incurred in conn~tion with this Agreement and the transactions
contemplated hereby.
ARTICLE VII
Intentionally Deleted
ARTICLE vm
CLOSING AND ESCROW
Section 8.1
Intentionallv Deleted.
Section 8.2 Closing. The Closing hereunder shall be held (either by mail or in person), and delivery
of all items to be made at the Closing under the terms of this Agreement shaD be made (either by mail or in person),
at the offices of the Escrow Agent or such other place mutually agreed to by the parties, prior to 5:00 p.m Dallas,
Texas time on or before the date that is ten (10) days after the date of expiration of the Conditions Period (the
"Closing Date"). Such date and time may not be extended without the written approval of both Seller and Buyer.
Section 8.3 Dq>osit of Documents.
(a) At or before the Closing, Seller shall deposit into escrow with the Escrow Agent the
following items:
(i) one (I) duly executed and acknowledged original of the Deed in the fonn of
Exhibit "B" attached hereto;
(ii) three (3) duly executed originals of a Quit-claim Bill of Sale ("Bill of Sale")
relating to any personal property being sold, if any, in the fonn of Exhibit "C"
attached hereto; and
(iii) an affidavit pursuant to Section 1445(bX2) of the Internal Revenue Code (the
"Code") in a fonn complying with the requirements of the Code, and on which
Buyer is entitled to rely, that Seller is not a "foreign person" within the meaning
of Section 1445(t)(3) of the Code.
(b) At or before aosing, Buyer shall deposit into escrow with the Escrow Agent and/or
cause the Escrow Agent to issue and deliver to Seller the following items:
(i) immediately available funds necessary to close this transaction, subject to any
adjustments to be made pursuant to the tenus and provisions of this Agreement;
(ii) three (3) duly executed originals of the Bill of Sale;
(iii) three (3) dUly executed originals of an As-Is Certificate in the fonn of Exhibit
.::IE attached hereto;
DAllAS4 649839v4 20722-00747
6
Agreement of Purchase and Sale
Big Pine Key
(iv) two (2) duly executed originals of a Taxpayer ID Certificate 10 a fonn as
required by Seller; and
(v) such evidence of Buyer's authority to acquire the Property as Seller shall
reasonably require.
(c) Buyer and Seller shall each deposit such other instruments as are reasonably required by
the Escrow Agent or otherwise required to close the purchase and sale of the Property in accordance with
the terms hereof, including, without limitation, excise tax affidavits, escrow instructions consistent with the
term; hereof and an agreement (the "DesIgnation Agreement") designating the Escrow Agent as the
"Reporting Person" for the transaction pursuant to Section 6045(e) of the Code and the regulations
promulgated thereunder, and executed by Seller, Buyer and the Escrow Agent. The Designation
Agreement shall comply with the requirements of Section 6045(e) of the Code and the regulations
promulgated thereunder.
Section 8.4
Prorations.
(a) The following shall all be prorated as of 12:01 a.m on the Closing Date, on the basis ofa
365-day year: (i) real property taxes and assessments for the year in which the Closing occurs, (ii) water,
sewer and utility charges, (iii) amounts payable under any service contracts for the month in which the
Closing occurs and prior months, (iv) aonual pennits and/or inspection fees (calculated on the basis of the
period covered), (v) rents due from tenants, if any, ofany part of the Property and (vi) any other expenses
relating to the operation and maintenance of the Property. Seller and Buyer hereby agree that if any of the
aforesaid prorations cannot be calculated accurately on the Closing Date, then the same shall be calculated
within thirty (30) days after the Closing Date, or as soon as sufficient information is available to pennit the
parties to accurately calculate such proration(s), and either party owing the other party a sum of money
based on such subsequent proration(s) shall pay said sum to the other party within ten (10) days after such
calculation is made; provided however, that the tax prorations and assessments referenced in (i) of this
Section 8.4(a) shall be final as of the Oosing. The provisions of this Section 8.4(a) shall survive the
Closing.
(b) Buyer shall pay the premium for the Tide Policy. Any additional endorsements to the
Title Policy or any other insurance coverages shall be paid for by Buyer; including, without limitation, any
payments for the deletion of the "survey exception" in the Title Policy. Buyer shall pay all expenses
associated with the performance of Buyer's due diligence pursuant to Section 2. I above. Escrow fees,
excise tax and recording charges and any other expenses of the escrow for the sale shall be paid for by
Buyer. Buyer shall pay the costs of the execution and filing of the Deed. Seller shall pay the costs for the
documentary stamps relating to the Deed, if any. Buyer shall pay all costs and expenses associated with
any third-party financing. All costs and charges descnbed in this paragraph shall be paid at Closing. Any
bills received after the Closing and not previously prorated in escrow shall be divided as provided herein,
and shall be paid promptly upon receipt of a bill therefor, and any and all other costs and expenses relating
to the purchase and sale transaction contemplated hereby shall be paid by the party incurring same. The
provisions of this Section 8.4(b) shall survive the Closing.
ARTICLE IX
PROVISIONS WITH RESPECT TO DEFAULT
Section 9.1 Default by Seller. In the event Seller fails to consununate the transactions contemplated
herein for any reason (except in the event of a breach or violation by Buyer of any representation or warranty of
Buyer set forth herein, a failure by Buyer to perform its obligations hereunder or to consummate the transactions
contemplated herein or the tennination hereof pursuant to a right granted to Buyer or Seller hereunder to do so) or if
Seller has breached a representation or warranty that prevents the consummation of the purchase and sale, Buyer
may either (i) terminate this Agreement by notifying Seller thereof, and thereupon shall be entitled to a return of the
Deposit, as its sole and exclusive remedy and relief hereunder, or (ii) enforce specific performance of this
Agreement of Purchase and Sale
Big Pine Key
7
DALLAS4 649839v4 20722-00141
Agreement, as its sole and exclusive remedy and relief hereunder. Seller shall not be liable to Buyer for any actual,
punitive, speculative, consequential or other damages. Buyer hereby waives any and all remedies and relief except
as provided in (i) and (ii) above.
Section 9.2 Default bv Buyer. IF THE SALE AND PURCHASE OF THE PROPERTY
CONTEMPLATED BY THIS AGREEMENT IS NOT CONSUMMATED BECAUSE OF BUYER'S
DEFAULT, SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL TERMINATE THIS
AGREEMENT BY NOTIFYING BUYER IN WRITING THEREOF, AND THEREUPON SHALL BE
ENTITLED TO THE DEPOSIT, AS ITS SOLE AND EXCLUSIVE REMEDY AND RELIEF HEREUNDER
AND AS LIQUIDATED DAMAGES FOR SUCH DEFAULT OF BUYER. IT IS HEREBY AGREED THAT
SELLER'S DAMAGES IN THE EVENT OF A DEFAULT BY BUYER HEREUNDER ARE UNCERTAIN
AND EXTREMELY DIFFICULT TO ASCERTAIN, AND THAT THE DEPOSIT CONSTITUTES A
REASONABLE PRE-ESTIMATE OF SUCH DAMAGES AND SELLER'S RETENTION THEREOF IS
INTENDED NOT AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES. TIlE RIGHT TO RETAIN
THE DEPOSIT AS FULL LIQUIDATED DAMAGES IS SELLER'S SOLE AND EXCLUSIVE REMEDY
IN THE EVENT OF DEFAULT HEREUNDER BY BUYER, EXCEPT, HOWEVER, FOR THE
INDEMNIFICATION OBLIGATIONS OF BUYER UNDER THIS AGREEMENT, FOR THE BREACH OF
WHICH SELLER MAY EXERCISE ANY AND At,L RIGHTS OR REMEDIES A V All..ABLE AT LAW OR
IN EQUITY. THE PROVISIONS OF THIS SECTION 9.2 SHALL SURVIVE THE CLOSING OR ANY
TERMJNATI~ TIllS AGREEMENT. -'-1
Buyer's initials
Seller's initials
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices. Any notices required or pennitted to be given hereunder shall be given in
writing and shall be delivered either (i) in person, including, without limitation, delivery by a courier that provides a
receipt. (ii) by certified mail, postage prepaid, return receipt requested. (ill) by a commercial overnight courier that
guarantees next day delivery and provides a receipt or (iv) by telefacsimile, provided such notice is also given in one
of the methods described in clauses (i)-(iii) above, and such notices shall be addressed as follows:
To Seller:
Beal Bank, S.S.B.
6000 Legacy Drive
Piano, Texas 75024
Attn: Mr. Mike Wyant
Fax No.: (469) 241-9563
Tel. No.: (469) 467-5512
With a copy to:
Melissa Mallery, Esq.
Jenkens & Gilchrist, a Professional Corporation
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
Fax No. (214) 855-4300
Tel. No.: (214) 855-4890
DALLAS4 649839v4 20722-00747
8
Agreement of Purchase and Sale
Big Pine Key
To Buyer:
Monroe County Land Authority
1200 Truman A venue
Suite 207
Key West, FL 33040
Attn: Mr. Mark J. Rosch
Fax No.: (305) 295-5181
Tel. No.: (305) 295-5180
With a copy to:
Suzanne Hutton, Esq.
P.O. Box 1026
Key West, FL 33041-1026
Fax No.: (305) 295-5181
Tel. No.: (305) 292-3470
or to such other address as either party may from time to time specify in writing to the other party. Any notice shall
be effective only upon delivery. Telefacsimile messages shall be effective on the date the party sending such
message receives electronic confirmation of the successful transmission of such message.
Section 10.2 Entire A2I'eement. This Agreement, together with the Exhibits hereto, contains all
representations, warranties and covenants made by Buyer and Seller and constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof. Any prior correspondence, memoranda, letters
of intent or agreements are replaced in total by this Agreement together with the Exhibits hereto. Neither this
Agreement nor any memorandum hereof may be recorded.
SeCtiOD 10.3 Time. Time is of the essence in the performance by each of the parties of their respective
obligations contained herein. In the event that a date for performance of any obligation under this Agreement or
expiration of any time period falls on a Saturday, Sunday or a holiday 011 which national banks are required to be
closed. the date for performance of such obligation or expiration of such time period shall be adjusted to be the next
occurring calendar day which is not a Saturday, Sunday or bank holiday.
Section 10.4 Attornevs' Fees. If either party hereto fails to perform any of its obligations under this
Agreement or if any dispute arises between the parties hereto concemiag the meaning or interpretation of any
provision of this Agreement, then the defaulting party or the party not prevailing in such dispute, as the case may be,
shall pay any and all costs and expenses incurred by the other party on account of such default and/or in enforcing or
establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and
disbursements. Any such attorneys' fees and other expenses incurred by either party in enforcing a judgmeot in its
favor under this Agreement shall be recoverable separately from and in addition to any other amount included in
such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this
Agreement and to survive and not be merged into any such judgment. The provisions of this Section shall control
over any conflicting provision contained in this Agreement.
Section J 0.5 Assienment. Buyer's rights and obligations hereunder shall not be assignable without the
prior written consent of Seller, which consent may be given or withheld in Seller's sole and absolute discretion. Any
assignment of this Agreement made without the express written consent of Seller shall be void and of no force or
effect.
Section 10.6 CountelJlarts and Facsimile Si2natures. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the
same instrument. Facsimile signatures hereon shall be treated for all purposes as original signatures.
Section 10.7 Governing Law. This Agreement shaU be governed by and construed in accordance with
the laws of the State of Florida. The venue for any litigation shall be in Monroe County, Florida.
Section 10.8 Amendments. This Agreement may be amended or modified only by a written
instrument signed by Buyer and Seller.
9
Agreement of Purchase and Sale
Big Pine Key
DAl.LAS4 649839v4 20722-00747
Section 10.9 Drafts Not an Offer to Enter into a Legally Binding Contract. The parties hereto agree
that the submission of a draft of this Agreement by one party to another is not intended by either party to be an offer
to enter into a legally binding contract with respect to the purchase and sale of the Property. The parties shall be
legally bound with respect to the purchase and sale of the Property pursuant to the terms of this Agreement only if
and when the parties have been able to negotiate all of the terms and provisions of this Agreement in a manner
acceptable to each of the parties in their respective sole discretions, including, without limitation, all of the Exhibits
hereto, and both Seller and Buyer have fully executed and delivered to each other a counterpart of this Agreement,
including, without limitation, all Exhibits hereto.
Section 10.10 No Partnership. The relationship of the parties hereto is solely that of seller and buyer
with respect to the Property and no joint venture or other partnership exists between the parties hereto. Neither party
has any fiduciary relationship hereunder to the other.
Section 10.11 Consideration. The parties acknowledge that sufficient consideration was given to make
this contract legally enforceable, including Buyer's obligation to conduct tests and evaluations of the Property, to
pay the Deposit and to indemnify Seller.
Section 10.12 Confidentiality. The parties hereto covenant and agree that they shall not communicate
the tenos, the results of any tests or inspections conducted pursuant hereto or any other aspects of this transaction
prior to the Closing with any person or entity other than the Title Company and the other party and their respective
agents, consultants, attorneys, financial advisors, accountants, and employees, and shall treat the terms of this
Agreement in a confidential manner, except as otherwise required by Florida law.
Section 10.13 Severability. If any provision of this Agreement is held to be invalid, illegal, or
unenforceable, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement,
and the remainder of this Agreement shall be construed and interpreted as if such invalid, illegal or unenforceable
provision had never been contained herein.
Section 10.14 Exlubits. The exlubits specified are attached to this Agreement and by this reference
made a part hereof and are subject to revision prior to Closing.
Section 10.15 W liver of JUly Trial. As part of the consideration for this Agreement, each of the parties
hereto waives the right to trial by jury in connection with any dispute or action under this Agreement.
Section 10.16 Ethics Clause. Seller warrants that it has not employed, retained or otherwise had act on
its behalf any former Monroe County officer or employee in violation of Section 2 or Ordinance No. 10-1990 or any
Monroe County officer or employee in violation of Section 3 of Ordinance No. 10-1990. For breach or violation of
this provision Buyer may, at its discretion terminate this Agreement without liability or may also, at its discretion,
deduct from the agreement or purchase price, or otherwise recover, the full amount of any fee, commission,
percentage, gift, or consideration paid to the fonner or present Monroe County officer or ~Ioyee.
Section 10.17 Public Entitv Crime Statement. A person or affiliate who has been placed on the
convicted vendor list following a conviction for public entity crime may not submit a bid on an agreement to provide
any goods or services to a public entity, may not submit a bid on a agreement with a public entity for the
construction or repair of a public building or public work, may not submit bids on leases of real property to public
entity, may not be awarded or perform work as a contractor, supplier, sub-contractor, or consultant under an
agreement with any public entity, and may not transact business with any public entity in excess of the threshold
amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months from the
date of being placed on the convicted vendor list.
Section 10.18 Anti-Kickback. Seller warrants that DO person, other than the Broker, has been employed
or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage,
brokerage or contingent fee, and that no employee or officer of Monroe County or the Monroe County Tourist
Development Council has any interest, financially or otherwise, in the said funded project, except for general
membership. For breach or violation of this warranty, Buyer shall have the right to annul this Agreement without
Agrument of Purchase and Sale
Big Pine Key
10
DALLAS4 649839v4 20722-00747
liability or, in its discretion, to deduct from the Agreement price or consideration, the full amount of such
commission, percentage, brokerage or contingent fee.
Section 10.19 Seller's Authority. Seller warrants that it is authorized by law to engage in the
performance of the activities encompassed by the project herein described. Each of the signatories for Seller below
certifies and warrants that Seller's name in this Agreement is the full name as designated in its charter; they are
empowered to act and contract for Seller, and this Agreement has been approved by the Board of Directors of Seller
or other appropriate authority.
Section 10.20 Buver's Authority. Buyer warrants that it is authorized by law to engage in the
performance of the activities encompassed by the project herein described Each of the signatories for Buyer below
certifies and warrants that Buyer's name in this Agreement is the full name as designated in its charter; they are
empowered to act and contract for Buyer, and this Agreement has been approved by the Board of Directors of Buyer
or other appropriate authority.
Section 10.21 Radon. Under the laws of the State of Florida, Seller hereby advises that 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. Seller has not conducted any testing for Radon in the Improvements,
and Seller makes no representation to Buyer concerning the presence or absence of Radon Gas in the Improvements
at any time or in any quantity. Buyer hereby expressly releases Seller from any loss, claim, liability or damage now
or hereafter arising from or related to the presence at any time of Radon Gas in the Improvements.
Section 10.22 Enerl!v Efficiencv Ratinl!. Pursuant to Florida Statutes Section 553.996, Buyer may have
the energy efficiency rating of the building being purchased determined. (Cbeck 1 or 2 below.)
[ ,/ ] 1. Buyer does not request that the energy efficiency rating of the building be determined.
] 2. Buyer requests that the rating be determined as follows: The inspection conducted to determine
the rating shall take place within fifteen (15) days from the effective date of this Agreement.
Buyer will select an inspector qualified under the rules of the Department of Community Affairs
to make the determination. The cost of obtaining the rating will be paid by Buyer. The
Agreement is not contingent on Buyer approving the rating. Buyer wants the rating determined
solely for Buyer's information.
(SIGNATURE PAGE FOLLOWSI
Agreement of Purchase and Sale
Big Pine Key
11
DALLAS4 64983?v4 20722-00747
The parties hereto have executed this Agreement as of the date first written above.
ATTEST:
~~:
DALLAS4 649839v4 20722-00747
SELLER:
BEAL BANK, S.S.B.,
a state savings bank organized under the laws of the State of
Texas
~~s~~~
-
BUYER:
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
BY'~(~
Name: Kurra Nels n
Title: CbairmanlMayor
/'-..)
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12
Agreement of Purchase and Sale
Big Pine Key
JOINDER OF THE BROKER
The Broker joins in the execution of this Agreement for the sole purpose of evidencing its agreement with
the provisions of Section 6.1 herein.
AMERICAN CARIBBEAN REAL ESTATE, MIDDLE
KEYS
~~~~~
T~
JOINDER OF THE ESCROW AGENT
The Escrow Agent joins in the execution of this Agreement for the pwpose of acknowledging the Escrow
Agent's receipt of an executed copy of this Agreement and the Deposit.
KAUFMAN DICKSTEIN & GRUNSPAN, P.A.
By:
Name:
Title:
13
Agreement of Purchase and Sale
Big Pine Key
DALLAS4 649839v4 20122-00747
EXHIBIT "A" TO PURCHASE AND SALE AGREEMENT
THE LAND
Parcel I
TRACT no. 3, as per unrecorded sketch of Tropic-Island Ranch~tts, Big Pine Key, Florida and now particularly
described by metes and bounds as foUows:
On the island of Big Pine Key, Monroe County, Florida, begin at the center of Section 26, Township 66 South,
Range 29 East; thence IUD due Westerly 548.75 feet to the POINT OF BEGINNING; thence continue due Westerly
299.375 feet; thence IUD due Southerly 160.0 feet; thence IUD due Easterly 299.375 feet; thence IUD due Northerly
160.0 feet to the POINT OF BEGINNING.
Parcel II
Easement for the purpose of vehicular and pedestrian ingress and egress as reserved in Special Warranty Deed from
Carnival Fruit Company, a Florida corporation, to Broce H. Seigal and Leda Grodsky Seigal, his wife, dated
August 27, 1990, recorded August 27, 1990 in Official Records Book 1142, at Page 1544, of the Public Records of
Monroe County, Florida.
DALLAS4 649839v4 20722-00747
Agreement of Purchase and Sale
Big Pine Key
THIS INSTRUMENT WAS PREPARED BY:
Melissa M. Mallery, Esq.
Jenkens & Gilchrist, a Professional Corporation
\445 Ross Avenue, Suite 3200
Dallas, Texas 75202
AFTER RECORDING RETURN TO:
Meyer & Erskine, P.A.
312\) Avenue A
Big Pine Key, Florida 33043
Attn:
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, made this _ day of , 2004, between BEAL
BANK, S.S.B.. a state savings bank organized under the laws of the State of Texas, whose mailing address is 6000
Legacy Drive, Suite 4E, PIano, Texas 75024, as "GRANTOR," and the MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, a political subdivision of the State of
Florida, whosemailingaddressis.as "GRANTEE."
(Whe~er used herein, the terms "GRANTOR" and "GRANTEE" shall include all the parties to
this instrument and the heirs, legal representatives and assigns of individuals, and the successors
and assigns of corporations.)
WITNESSETH:
That the GRANTOR, for and in consideration of the sum ofTEN AND NO/tOO U.S. DOLLARS ($10.00)
and other good and valuable consideration in hand paid to GRANTOR by said GRANTEE, receipt whereof is
hereby acknowledged, by these presents does grant, bargain, sell, remise, release, convey and confirm unto the
GRANTEE the following descnbed real property, and rights and interest in real property located and situated in the
County of Monroe and State of Florida (the "Property").
(FOR LEGAL DESCRIPTION, SEE EXHIBIT "A" AITACHED HERETO AND MADE A
PART HEREOF BY SPECIFIC REFERENCE.)
Property Tax Identification Nos.: RE #
THIS CONVEYANCE IS SUBJECT TO THE FOLLOWING:
1. Taxes and assessments for the year 2004, and all subsequent years;
2. Covenants, conditions, reservations, restrictions, limitations, dedications, easements and other
matters of record, without intending to reimpose the same;
3. Applicable zoning and other governmental restrictions and regulations; and
4. (Other Pennitted Exceptions to be inserted prior to Closing).
TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or in any way
appertaining.
TO HAVE AND TO HOLD the same in fee snq,le forever.
THE GRANTOR HEREBY SPECIALLY WARRANTS the title to the Property and will defend the
same against the lawful claims of all persons claiming by, through or under the said GRANTOR.
(SIGNATURE AND NOTARY PAGE FOLLOWSI
DALLAS4 6498J9v4 20n2-OO747
Agreement of Purchase and Sale
Big Pine Key
IN WITNESS WHEREOF, the GRANTOR has hereunto set its hand and sea) as of the day and year first
above written.
GRANTOR:
Signed, sealed and delivered
in our presence:
BEAL BANK, S.S.B.,
a state savings bank organized under the laws of the State of
Texas
By:
Name:
Title:
Witness:
Print Name:
Witness:
Print Name:
STATE OF TEXAS
~
~
~
COUNTY OF COLLIN
The foregoing instrument was acknowledged before me this _ day of
, as of , a
known to me ( ) or bas produced , as identification.
, 2004, by
He/She is personally
My Commission Expires:
Notary Public
(Name - Please Print)
Commission No.:
DALLAS4 6498J9v4 20722-00747
2
Agreement of Purchase and Sale
Big Pine Key
EXHmlT "A"
THE LAND
Parcel 1
TRACf no. 3, as per unrecorded sketch of Tropic-Island Ranchetts, Big Pine Key, Florida and now particularly
described by metes and bounds as follows:
On the island of Big Pine Key, Monroe County, Florida, begin at the center of Section 26, Township 66 South,
Range 29 East; thence run due Westerly 548.75 feet to the POINT OF BEGINNING; thence continue due Westerly
299.375 feet; thence run due Southerly 160.0 feet; thence run due Easterly 299.375 feet; thence nm due Northerly
160.0 feet to the POINT OF BEGINNING.
Parcel II
Easement for the purpose of vehicular and pedestrian ingress and egress as reserved in Special Warranty Deed from
Carnival Fruit Company, a Florida corporation, to Bruce H. Seigal and Leda Grodsky Seigal. his wife, dated
August 27, 1990, recorded August 27, 1990 in Official Records Book 1142, at Page 1544, of the Public Records of
Monroe County, Florida.
Agreement of Purchase and Sale
Big Pine Key
3
DALLAS4 6498J9v4 20722-00747
EXHIBIT "C" TO PURCHASE AND SALE AGREEMENT
QUIT -CLAIM BILL OF SALE
THIS QUIT-CLAIM BILL OF SALE (this "Bill of Sale") is made and entered into effective as of the _
day of ,2004, by and between BEAL BANK., S.S.B., a state savings bank organized
under the laws of the State of Texas ("Assignor"), and ~ONROE COUNTY BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY. FLORIDA, a political subdivision of the State of Florida (the
"Assignee").
WIT N E SSE T H:
A. Concurrently with the execution and delivery hereof, Assignor is conveying unto Assignee by
Special Warranty Deed, executed and delivered by Assignor, as grantor, unto Assignee, as grantee, dated of even
date herewith:
(a> That certain tract of land (the "Land") lying and being situated in the County of Monroe,
State of Florida, and being more particularly described on Exlubit "A" attached hereto and made a part
hereof for all purposes; and
(b) All rights, privileges and easements appurtenant to Assignor's interest in the Land, but
specifically excluding any property of any tenant under any lease (the "Appurtenances").
B. Assignee desires to purchase from Assignor, and Assignor desires to quit-claim and assign, to the
extent assignable, and transfer unto Assignee all of Assignor's right, title and interest, if any, in all fixtures,
appliances, equipment, names and other items of tangible and intangible personal property, if any, situated upon or
used exclusively in connection with the Land and the Appurtenances (such right, title and interest of Assignor, if
any, is herein referred to as the "Property").
NOW, THEREFORE, for and in consideration of the sum ofTEN AND NO/loo DOLLARS ($10.00) and
other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which
are hereby acknowledged and confessed by Assignor, Assignor does hereby QUlT-CLAIM unto Assignee, its
successors and assigns, all of the right, title and interest of Assignor, if any, in the Property. This Bill of Sale does
not affect the property of any tenant under any lease affecting the Land.
TIlE PROPERTY IS SOLD AND CONVEYED BY ASSIGNOR AND ACCEPTED BY ASSIGNEE" AS
IS," "WHERE IS" AND "WITH ALL FAULTS," AND WITHOUT REPRESENTATION OR WARRANTY OF
ANY KIND. ASSIGNOR MAKES NO WARRANlY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE IN RESPECf OF THE PROPERTY, AND TIffi SAME IS SOLD IN "AS IS WHERE
IS" CONDITION, WITH ALL FAULTS. BY EXECUTION OF THIS BILL OF SALE, ASSIGNEE AFFIRMS
THAT IT HAS NOT RELIED ON ASSIGNOR'S SKILL OR nIDGMENT TO SELECf OR FURNISH THE
PROPERTY FOR ANY PARTICULAR PURPOSE, AND mAT ASSIGNOR MAKES NO WARRANTY THAT
THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE, AND mAT THE PROPERTY IS BEING SOLD
TO ASSIGNEE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY.
TO HA VB AND TO HOLD the Property unto Assignee, its successors and assigns, forever. All of the
covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
DALLAS4 649839v4 20722-00747
Agreement of Purchase and Sale
Big Pine Key
IN WITNESS WHEREOF, Assignor and Assignee have caused this Bill of Sale to be executed effective as
of the day and year first above written.
ASSIGNOR:
ATTEST:
BEAL BANK, S.S.B.,
a state savings bank organized under the
laws of the State of Texas
Name:
By:
Name:
Title:
ASSIGNEE:
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
By:
Name:
Title:
ATTEST:
Agreement of Purchase and Sale
Big Pine Key
2
DALLAS4 649839v4 20722-00747
EXHIBIT A
Parcel I
TRACT no. 3, as per WU"ecorded sketch of Tropic-Island Ranchetts, Big Pine Key, Florida and now particularly
described by metes and bounds as follows:
On the island of Big Pine Key, Monroe County, Florida, begin at the center of Section 26, Township 66 South,
Range 29 East; thence run due Westerly 548.75 feet to the POINT OF BEGINNING; thence continue due Westerly
299.375 feet; thence run due Southerly 160.0 feet; thence run due Easterly 299.375 feet; thence run due Northerly
160.0 feet to the POINT OF BEGINNING.
Parcel II
Easement for the purpose ofv~hicular and pedestrian ingress and egress as reserved in Special Warranty Deed from
Carnival Fruit Company, a Florida corporation, to Bruce H. Seigal and Leda Grodsky Seigal, his wife, dated
August 27, 1990, recorded August 27, 1990 in Official Records Book 1142, at Page 1544, of the Public Records of
Monroe County, Florida.
Agreement of Purchase and Sale
Big Pine Key
3
L>ALLAS4 6498J9v4 20722-00747
EXHIBIT "D" TO PURCHASE AND SALE AGREEMENT
AS-IS CERTIFICATE
This As-Is Certificate (this "Certificate") dated this _ day of January, 2004, is executed and delivered
by the MONROE COUNTY BOARD <?F C,?UNTY ,~OMM]SSIONERS OF MONROE COUNTY, FLORID~, a
political subdivision of the State of F]onda ( Grantee ), unto BEAL BANK., S.S.B., a state savmgs bank orgarnzed
under the laws ofthe State of Texas ("Grantor").
RECIT ALS
Reference is hereby made to that certain Agreement of Purchase and Sale, dated as of January _' 2004,
made and entered into by and between Grantor and Grantee (as amended, the "Acreement"), in connection with the
real property described on Exhibit :'A" attached hereto ~d made ,a part hereo~ for all purposes. Capitalized terms
used but not otherwise dermed herem shall have the meanmgs ascnbed to them m the Agreement.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Grantee hereby certifies and confirms unto Grantor the following:
AGREEMENTS
GRANTOR ACQUIRED THE PROPERTY TIIROUGH FORECLOSURE AND CONSEQUENTLY
GRANTOR HAS LITTLE, IF ANY, KNOWLEDGE OF THE PHYSICAL OR ECONOMIC
CHARACTERISTICS OF THE PROPERTY. ACCORDINGLY, GRANTOR IS NOT MAKING AND HAS NOT
AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO TIlE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDmON, OPERATING HISTORY OR PROJECTIONS, VALUATION, OOVERNMENTAL APPROVALS,
GOVERNMENTAL REGULATIONS, THE TRUTH, ACCURACY OR COMPLETENESS OF THE ITEMS OR
ANY OrnER INFORMATION PROVIDED BY OR ON BEHALF OF GRANTOR TO GRANTEE OR ANY
OTHER MATIER OR TIDNG REGARDING THE PROPERTY. UPON CLOSING GRANTOR SHALL SELL
AND CONVEY TO GRANTEE AND GRANTEE SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS,
WITH ALL FAULTS." GRANTEE HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER
DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF GRANTOR WITH RESPECT
TO THE PROPERTY. GRANTEE HAS CONDUCTED SUCH INVESTIGATIONS OF THE PROPERTY,
INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF,
AS GRANTEE HAS DEEMED NECESSARY TO SATISFY ITSELF AS TO THE CONDmON OF THE
PROPERTY AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED
BY OR ON BEHALF OF GRANTOR. UPON CLOSING, GRANTEE SHALL ASSUME THE RISK THAT
ADVERSE MA TIERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HA VB BEEN REVEALED BY GRANTEE'S
INVESTIGATIONS. GRANTEE, UPON CLOSING, HEREBY WAIVES, RELINQUISHES AND RELEASES
GRANTOR FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACfION
(INCLUDING CAUSES OF ACflON IN TORT (I.E., NEGLIGENCE AND STRICT LIABILITY), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH GRANTEE
MIGHT HAVE ASSERTED OR ALLEGED AGAINST GRANTOR AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY CONSTRUCfION DEFECTS, PHYSICAL AND ENVIRONMENTAL CONDITIONS,
THE VIOLATION OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER MA TIERS REGARDING
THE PROPERTY. GRANTEE, UPON CLOSING, SHALL AUTOMATICALLY INDEMNIFY AND HOLD
GRANTOR HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF
ACTION (INCLUDING CAUSES OF ACfION IN TORT (I.E., NEGLIGENCE AND STRICT LIABILITY)),
LOSS, DAMAGE, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, FIXED OR
CONTINGENT, ASSERTED AGAINST OR INCURRED BY GRANTOR AT ANY TIME BY REASON OF OR
Agreement of Purchase and Sale
Big Pine Key
DALLAS4 649839v4 20722-00747
ARISING OUT OF THE VIOLATION OF ANY APPLICABLE LAWS PERTAINING TO ANY ADVERSE
PHYSICAL OR ENVIRONMENTAL CONDITION PLACED OR OCCURRING ON THE PROPERTY ON OR
AFTER THE CLOSING DATE. SHOULD ANY CLEAN-UP, REMEDIATION OR REMOVAL OF
HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE
REQUIRED, IT IS HEREBY UNDERSTOOD AND AGREED THAT SUCH CLEAN-UP, REMOVAL OR
REMEDIATION SHALL BE PERFORMED BY GRANTEE. THE TERMS, CONDITIONS, OBLIGATIONS
AND INDEMNITIES OF THIS CERTIFICATE SHALL EXPRESSLY SURVIVE THE CLOSING AND NOT
MERGE THEREIN.
GRANTEE REPRESENTS AND WARRANTS TO GRANTOR THAT GRANTEE HAS KNOWLEDGE
AND EXPERIENCE IN FINANCIAL AND BUSINESS MA TIERS THAT ENABLE GRANTEE TO
EV ALUA TE THE MERITS AND RISKS OF THE TRANSACfION CONTEMPLATED BY THIS
CERTIFICATE. FURTHER, GRANTEE ACKNOWLEDGES THAT IT IS NOT IN A DISPARATE
BARGAINING POSITION RELATIVE TO GRANTOR WITH RESPECf TO THIS CERTIFICATE.
AS USED HEREIN, THE TERM "HAZARDOUS SUBSTANCES" SHALL MEAN ANY SUBSTANCE
WHICH IS OR CONTAINS (I) ANY "HAZARDOUS SUBSTANCE" AS NOW OR HEREAFTER DEFINED IN
~101(14) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
ACT OF 1980, AS AMENDED (42 U.S.C. ~9601 ET SEQ.) ("CERCLA") OR ANY REGULATIONS
PROMULGATED UNDER CERCLA; (Il) ANY "HAZARDOUS WASTE" AS NOW OR HEREAFfER
DEFINED IN THE RESOURCE CONSERVATION AND RECOVERY ACf (42 U.S.C. ~6901 ET SEQ.)
("RCRA") OR REGULATIONS PROMULGATED UNDER RCRA; (III) ANY SUBSTANCE REGULATED BY
TOXIC SUBSTANCES CONTROL ACf (15 U.S.C. ~2601 ET SEQ.); (IV) GASOLINE, DIESEL FUEL, OR
OTHER PETROLEUM HYDROCARBONS; (V) ASBESTOS AND ASBESTOS CONTAINING MATERIALS,
IN ANY FORM, WHETHER FRIABLE OR NON-FRIABLE; (VI) POLYCHLORINATED BIPHENYLS; (VII)
RADON GAS; AND (VIII) ANY ADDITIONAL SUBSTANCES OR MATERIALS WHICH ARE NOW OR
HEREAFTER CLASSIFIED OR CONSIDERED TO BE HAZARDOUS OR TOXIC UNDER ANY
APPLICABLE FEDERAL OR STATE LAWS RELATING TO ANY OF THE PROPERTY. HAZARDOUS
SUBSTANCES SHALL INCLUDE, WITIlOUT LIMITATION, ANY SUBSTANCE, TIlE PRESENCE OF
WHICH ON THE PROPERTY, (A) REQUIRES REPORTING, INVESTIGATION OR REMEDIATION UNDER
APPLICABLE LAW, (B) CAUSES OR THREATENS TO CAUSE A NUISANCE ON THE PROPERTY OR
ADJACENT PROPERTY OR POSES OR TIIREATENS TO POSE A HAZARD TO TIlE HEALTII OR SAFETY
OF PERSONS ON TIIE PROPERTY OR ADJACENT PROPERTY; OR (C) WHICH, IF IT EMANATED OR
MIGRATED FROM THE PROPERTY, COULD CONSTITUTE A TRESPASS.
Facsimile signatures hereon shall be treated for all purposes as original signatures.
(SIGNATURE PAGE FOLLOWS)
Agreement of Purchase and Sale
Big Pine Key
2
DALLAS4 649839v4 20n2-00747
IN WITNESS WHEREOF, Grantee has executed and delivered this Certificate as of the date set forth
above.
GRANTEE:
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
By:
Name:
Title:
A TrEST:
Agreement of Purchase and Sale
Big Pine Key
3
D....LL....S4 649839v4 20722-00141
EXHIBIT" A"
LeI!" DescrlDtion
Parcell
TRACf no. 3, as per unrecorded sketch of Tropic-Island Ranchetts, Big Pine Key, Florida and now particularly
described by metes and bounds as follows: '
On the island of Big Pine Key, Monroe County, Florida, begin at the center of Section 26, Township 66 South,
Range 29 East; thence run due Westerly 548.75 feet to the POINT OF BEGINNING; thence continue due Westerly
299.375 feet; thence run due Southerly 160.0 feet; thence run due Easterly 299.375 feet; thence run due Northerly
160.0 feet to the POINT OF BEGINNING.
Parcel II
Easement for the purpose of vehicular and pedestrian ingress and egress as reserved in Special Warranty Deed from
Carnival Fruit Company, a Florida corporation, to Bruce H. Seigal and Leda Grodsky Seigal, his wife, dated
August 27, 1990, recorded August 27, 1990 in Official Records Book 1142, at Page 1544, of the Public Records of
Monroe County, Florida.
Agreement of Purchase and Sale
Big Pine Key
4
DALlAS4 649839v4 20722-00747