OPTION AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made this 1st day of March 1999 between the Royal Palm Beach
Colony, L.P., a Delaware Limited Partnership, with an address at 0000 Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx, XX 00000, as "Seller" and The Nature Conservancy, a
non-profit District of Columbia corporation, whose address is 000 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000, and its successors
and assigns, as "Purchaser."
1. GRANT OF OPTION. Seller hereby grants to Purchaser and its successors and
assigns the exclusive option to purchase all of Seller's right, title and
interest in and to the real property located in Palm Beach County, Florida,
described in Exhibit "A", together with all improvements, easements and
appurtenances ("Property"), in accordance with the provisions of this Agreement.
This Agreement becomes legally binding upon execution by the parties but
exercise of the option is subject to approval by the Palm Beach County Board of
County Commissioners (the "Board"), whose address is Palm Beach County
Department of Environmental Resources Management, 0000 Xxxxxxxxx Xxxx, Xxxxxxxx
000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000. If this option is assigned to the Board,
Palm Beach County shall not have any obligations under this Agreement until it
gives written notice of exercise to Seller. If this option is assigned to the
Board, the Board's agents in all matters shall be the Department of
Environmental Resources Management ("ERM") and the County Attorney's Office.
2. OPTION TERMS. The option is One Hundred Dollars ($100) ("Option Payment"),
the receipt and sufficiency of which is hereby acknowledged by Seller. The
option may be exercised during the period beginning with Purchaser's execution
of this Agreement and ending 150 days after execution of this Agreement by
Seller, unless extended by other provisions of this Agreement ("Option
Expiration Date").
3.A. PURCHASE PRICE. The purchase price ("Purchase Price") for the Property is
One Million Three Hundred Eighty Five Thousand and no/100 Dollars $1,385,000.00,
which after reduction by the amount of the Option Payment, will be paid in cash
or certified funds, or, if assigned to the Board, by County check, to Seller at
closing.
3.B. ADJUSTMENT OF PURCHASE PRICE. The Purchase Price is $1,385,000.00. If the
final County approved survey required by paragraph 5 hereof shows that there are
less than 483 acres, then the Purchase Price will be decreased by $3,000.00 for
each acre less than 483 acres.
4.A. ENVIRONMENTAL AUDIT. Seller shall, at his sole cost and expense and at leas
45 days prior to the Option Expiration Date, furnish to Purchaser a Phase I
environmental audit of the Property which meets the standards and requirements
of the Division of State Lands of the Florida Department of Environmental
Protection ("DSL"). It is Seller's responsibility to ensure that the consultants
contact Purchaser regarding these standards and requirements. Seller shall use
the services of competent, professional consultants with expertise in the
environmental auditing process to determine the existence and extent, if any, of
"Hazardous Materials" shall mean any hazardous or toxic substance, material or
waste of any kind or any other substance which is regulated by any Environmental
Law ( as hereinafter defined in paragraph 4.B.). The audit shall be certified to
Purchaser and the date of certification shall be within 45 days before the date
of closing.
4.B. HAZARDOUS MATERIALS. In the event that the environmental audit provided for
in paragraph 4.A confirms the presence of Hazardous Materials on the Property,
Seller shall, at its sole cost and expense and prior to the exercise of the
option and closing, promptly commerce and diligently pursue any assessment,
clean up and monitoring of the Property into full compliance with any and all
applicable federal, state or local laws, statutes, ordinances, rules,
regulations or other governmental restrictions regulating, relating , or
imposing liability or standards of conduct concerning Hazardous Materials
("Environmental Law"), but shall not be required to spend more than $7,000.00.
If the estimated cost of clean up of Hazardous Materials exceed $13,000.00
either party may elect to terminate this Agreement and neither party shall have
any further obligations under this Agreement.
5. SURVEY. Seller shall no later than 45 days prior to the Option Expiration
Date obtain at its sole cost and expense and deliver to Purchaser a current
boundary survey of the Property prepared by a professional land surveyor
licensed by the State of Florida which meets the standards and requirements of
DSL. It is Seller's responsibility to ensure that the surveyor contacts the
Bureau of Survey and Mapping in DSL regarding these standards and requirements
prior to the commencement of the Survey. The Survey shall be certified to
Purchaser and the title insurer and the date of certification shall be within 90
days before the date of closing, unless this 90 day time period is waived by
Purchaser and by the title insurer for purposes of deleting the standard
exceptions for survey matters and easements or claims of easement not shown by
the public records from the owner's title policy. If the Survey shows any
encroachment on the Property or that improvements intended to be located on the
Property encroach on the land of others. The same shall be treated as a title
defect.
6. TITLE INSURANCE. Seller shall, at its sole cost and expense and at least 30
days prior to the Option Expiration Date, furnish to Purchaser a marketable
title insurance commitment, to be followed by an owner's marketable title
insurance policy (ALTA Form "B") from a title company approved by Purchaser,
insuring marketable title of Purchaser to the Property to the Property in the
amount of the purchase Price. At closing, Seller shall require that the title
insurer delete the standard exceptions of such policy referring to : (a) all
taxes, (b) unrecorded rights or claims of parties in possession, (c) survey
matters, (d) unrecorded easements or claims of easements, and (e) unrecorded
mechanics' liens.
7. DEFECTS IN TITLE. Seller shall, within 90 days after notice form Purchaser,
cure all defects in title. Seller agrees to use diligent effort to correct the
defects in title within the time provided therefor, but shall not be required to
bring any lawsuits. If Seller is unsuccessful in removing the title defects
within said time, Purchaser shall have option to either: (a) accept the title as
it then is with no reduction in the Purchase Price, (b) extend the amount of
time, not to exceed and additional 90 days, that Seller has to cure the defects
in title, or (c) terminate this Agreement, thereupon releasing Purchaser and
Seller form all further obligations under this Agreement.
8. INTEREST CONVEYED. At closing, Seller shall execute and deliver to
Purchaser a statutory warranty deed in accordance with Section 689.02, Florida
Statutes, conveying marketable title to the
Property in fee simple fee and clear of all liens, reservations, restrictions,
easements, leases, tenancies and other encumbrances accepted, in writing, by
Purchaser.
9. PREPARATION OF CLOSING DOCUMENTS. Upon execution of this Agreement, Seller
shall submit to Purchaser a properly completed and executed beneficial affidavit
and disclosure as required by Sections 286.23, and 380.08(2), Florida Statutes,
attached hereto as Addendum No. 1, and, at Closing Seller shall execute an
environmental affidavit, on the form attached hereto as Addendum No. 2 Seller
shall prepare the deed described in paragraph 8 of this Agreement, Purchaser's
and Seller's closing statements and the title, possession and lien affidavit
certified to Purchaser and title insurer in accordance with Section 627.7842,
Florida Statutes, on forms provided by Purchaser. All prepared documents shall
be submitted to Purchaser for review and approval at least 15 days prior to the
Closing Date.
10. PURCHASER REVIEW FOR CLOSING. Purchaser will approve or reject each item
required to be provided by Seller under this Agreement within 20 days after
receipt of all of the required items. Seller still have 15 days thereafter to
cure and resubmit any rejected item. In the event Seller fails to timely deliver
any item, or Purchaser rejects any item after delivery, Purchaser may in its
reasonable discretion extended the Option Expiration Date or Closing Date, as
applicable.
11. EXPENSES. Seller will pay the documentary revenue stamp tax and all other
taxes or costs associated with the conveyance, including the cost of recording
the deed described in paragraph 8. Of this Agreement and any other recordable
instruments which the title company deems necessary to assure good and
marketable title to the Property.
12. TAXES AND ASSESMENTS. If this option is not assigned to the Board , all
real estate taxes and assessments which are or which may become a lien against
the Property shall be prorated between the parties to the date of closing.
Notwithstanding any provision herein to the contrary , if this option is
assigned to the Board, all real estate taxes and assessments which are or which
may become a lien against the Property shall be satisfied of record by Seller at
closing. If this option is assigned to the Board and the Board acquires fee
title to the Property between January 1 and November 1, Seller shall, in
accordance with Section 196.295, Florida Statutes, place in escrow with the
county tax collector an amount equal to the current taxes prorated to the date
of transfer, based upon the current assessment and mileage rates on the
Property. In the event the Board acquires fee title to the Property on or after
November 1, Seller shall pay to the county tax collector an amount equal to the
taxes to be determined to be legally due and payable by the county tax
collector.
13. CLOSING PLACE AND DATE. The closing shall be on or before 30 days after
Purchaser exercises the option, but in no event sooner than June 1, 1999,
provided, however, that if a defect exists in the title to the Property , title
commitment, Survey, environmental audit, or any other documents required to be
provided or completed and executed by Seller, the closing shall occur on either
the original closing date or within 15 days after receipt of documentation
curing the defects, whichever is later. Notwithstanding anything herein before
to the contrary, Purchaser may, in its sole discretion, extend the closing up to
an additional 60 days. The place of closing shall be at the offices of Seller's
attorney in West Palm Beach, Florida, and the date and time shall be agreed to
by Purchaser and Seller.
14. RISK OF LOSS AND CONDITION OF REAL PROPERTY. Seller assumes all risk of
loss or damage to the Property prior to the date of closing and warrants that
the Property shall be transferred and conveyed to Purchaser in the same or
essentially the same condition as of the date of Seller's execution of this
Agreement. ordinary wear and tear excepted. However, in the event the condition
of the Property is altered by an act of God or other natural force beyond the
control of Seller, Purchaser may elect, at its sole option, to terminate this
Agreement and neither party shall have any further obligations under this
Agreement. Seller represents and warrants that there are no parties other than
Seller in occupancy or possession of any part of the Property.
15. RIGHT TO ENTER PROPERTY AND POSSESSION. Seller agrees that from the date
this Agreement is executed by Seller, Purchaser and its agents, upon reasonable
notice, shall have the right to enter the Property for all lawful purposes in
connection with this Agreement. With regard to any entry by Purchaser upon the
Property prior to closing, Purchaser shall be responsible for damage or injury
to persons or property resulting form Purchaser's liability to Seller or to any
third party shall be subject to the limitations and conditions specified in
Section 768.28, Florida Statutes, and nothing contained herein shall be
constructed as a waiver of sovereign immunity. Seller represents and warrants
that there are no parties other than Seller in occupancy or possession of any
part if the Property. Seller agrees to clean up an remove all abandoned personal
property, refuse, garbage, junk, rubbish, trash, and debris (collectively
referred to herein as the "garbage") from the Property prior to the closing, but
shall not be required to spend more than $1,000.00. If the cost to clean up the
garbage exceeds $1,000.00, then the Purchaser shall contribute up to $6,000.00
to clean up the garbage. If the cost to clean up the garbage exceeds $7,000.00,
either party may elect to terminate this Agreement and neither party shall have
any further obligations under this Agreement.
16. ACCESS. Seller warrants that there is direct legal and actual access to the
Property over public roads or valid , recorded easements that benefit the
Property
17. DEFAULT. If either party defaults under this Agreement, the non-defaulting
party may waive the default and proceed to closing, or may seek any other remedy
available at law or in equity against the defaulting party. In connection with
any dispute arising out of this Agreement, including without limitation
litigation and appeals, the prevailing party will be entitled to recover
reasonable attorney's fees and costs.
18. BROKERS. Seller and Purchaser warrant that no persons, firms, corporations
or other entities are entitled to a real estate commission or other fees as a
result of this Agreement or subsequent closing, except as accurately disclosed
on the disclosure statement required in paragraph 9. Seller and Purchaser shall
indemnify and hold each other harmless from any and all such claims, whether
disclosed for undisclosed . In the event this Agreement is assigned to the
County, any fees due any other third party for its services to the Board shall
be the sole responsibility of the County and The Nature Conservancy shall remain
liable for the indemnification set forth in this paragraph 18.
19. ASSIGNMENT. This Agreement may be assigned by Purchaser only to Palm Beach
County, without the consent of Seller, in which event Purchaser will provide
written notice of assignment to Seller.
20. TIME. Time is of essence with respect to all dates or times set forth in
this Agreement.
21. WETLAND DONATION. At Seller's request , the parties acknowledge that Seller
intends to donate the wetlands portion of the Property to Palm Beach County.
However, this acknowledgment does not represent any concurrence in Seller's
claimed fair market value of the wetlands. Seller acknowledges and agrees that
this wetland donation is an item of negotiated consideration unique to this
particular transaction and accordingly, this wetland donation shall no be used
as a precedent in any future real estate negotiations.
22. SEVERABILITY. In the event any of the provisions of this Agreement are
deemed to be unenforceable, the enforceability of the remaining provisions of
this Agreement shall not be affected.
23. SUCCESSORS IN INTEREST. Upon Seller's execution of this Agreement, Seller's
heirs legal representatives, successors and assigns will be bound by it. Upon
Purchaser's approval of this Agreement and Purchaser's exercise of the option,
Purchaser and Purchaser's successors and assigns will be bound by it. The
covenants, warranties, representations and indemnities made by Seller to
Purchaser hereunder shall incur to the benefit of Purchaser's successors and
assigns.
24. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties pertaining to the subject matter contained in it and supercedes all
prior and contemporaneous agreements, representations and understandings of the
parties. No supplement, modification or amendment to this Agreement shall be
binding unless executed in writing by the parties.
25. WAIVER. Failure of Purchaser to insist upon strict performance of any
covenant or condition of this Agreement, or to exercise any right herein
contained, shall not be constructed as a waiver or relinquishment for the future
of any such covenant, condition or right; but the same shall remain in full
force and effect.
26. AGREEMENT EFFECTIVE. This Agreement or any modification, amendment or
alteration thereto, shall not be effective or binding upon any of the parties
hereto until it ahs been executed by all of the parties.
27. ADDENDUM. Any addendum attached hereto that is signed by the parties shall
be deemed a part of this Agreement.
28. NOTICE. Whenever either party desires or is required to give notice unto
the other, it must be given by written notice, and either delivered personally
or mailed to the appropriate address indicated on the first page of this
Agreement, or such other address as is designated on writing by a party to this
Agreement.
THE EXERCISE OF THIS OPTION IS SUBJECT TO: (1) CONFIRMATION THAT THE FINAL
ADJUSTED PURCHASE PRICE IS NOT IN EXCESS OF THE COUNTY APPROVED VALUE OF THE
PROPERTY , AND (2) COUNTY APPROVAL OF ALL DOCUMENTS TO BE FURNISHED HEREUNDER BY
SELLER.
SELLER
ROYAL PALM BEACH COLONY, L.P.
a Delaware Limited Partnership
By: Xxxxx Management Co., Inc. a Florida
Corporation, its sole general partner
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx, Authorized Agent
00-0000-000
----------------------------------------
X.X.X.X. No.
3-1-99
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Date signed by Seller
Executed by the SELLER on 3-1-99
--------------
/s/ Xxx Hr PURCHASER
Xxx Hr THE NATURE CONSERVANCY
-----------------------
Witness as to Purchaser By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------------
/s/ Xxxx Xxxxxx Xxxxxx X. Xxxxxxx, Xx.
Xxxx Xxxxxx
---------------------- Its: Vice President
Witness as to Puchaser
Xxxxxx X. Xxxxxxx, Xx.
(Corporate Seal)
00-0000000
----------------------------------------
X.X.X.X. No.
3/18/99
----------------------------------------
Date signed by Purchaser
ADDNDUM No. 1
BENEFICIAL INTEREST AND DISCLOSURE
OTHER
STATE OF ) FLORIDA
)
COUNTY OF ) DADE
Before me, the undersigned authority, personally appeared Xxxxx Xxxxxx,
Authorized Agent. This 1st day of March, 1998 who, first being duly sworn,
deposes and says:
1) That Royal Palm Beach Colony a Delaware Limited Partnership, whose
address is 0000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, XX 00000, is the record owner of
the Property. The following is a list of every "person" (as defined in Section
1.03 (3), Florida Statutes) holding 5% or more of the beneficial interest in the
Property.
(if more space is needed, attach separate sheet)
Name Address Interest
---- ------- --------
Royal Palm Beach Colony, a Delaware Limited Partnership, is registered with the
Federal Securities Exchange Commission and is exempt from the requirements of s.
286.23 pursuant to ss. 286.23 (3) (a), Florida Statutes.
2) That to the best of the affiant's knowledge, all persons who have a
financial interest in this real estate transaction or who have received or who
will receive real estate commission, attorney's or consultant's fees or any
other benefits incident to the sale of the property are:
Name Address Reason for Payment Amount
---- ------- ------------------ ------
Xxxxx Xxxxxxxx 000 X. Xxxxxxx Xxxxx Xxxxxxxx Fees. Amount to
Xxxx Xxxx Xxxxx, XX 00000 be determined.
RTL Realty, Inc. 0000 Xxxxxx Xxxxx Real Estate Commission
Xxxxx Xxxxxx, XX 00000
EnviroDesign Associates, 000 Xxxxxxxxx Xxxxx Xxx Phase I Environmental site
Inc. Xxxxxx Xxxxx, XX 00000 assessment
3) That, to the best of the affiant's knowledge, the following is a true
history of all financial transactions (including any mortgages and amendments or
modifications thereto, or existing options or purchase agreements in favor of
affront) concerning the Property which have taken place or will take place
during the last five years prior to the conveyance of title to Palm Beach
County, Florida:
Name and Address Type of Amount of
of Parties Involved Date Transaction Transaction
------------------- ---- ----------- -----------
NONE
This affidavit is given with the provisions of Sections 286.23 , and 380.08 (2),
Florida
Statutes.
AND FURTHER AFFIANT SAYETH NOT.
/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx, Authorized Agent
SWORN TO and subscribed before me this 1st day of March 1999, by Authorized
Agent who is personally known to me or who has produced & drivers license as
identification and who did take an oath.
/s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxx
Notary Public
Xxxxxxx Sanamaria
---------------------------------
(Printed or Typed Name of Notary)
Commission No.: CC 799693
-----------------
My Commission Expires: 12/28/02
-----------
EXHIBIT "A"
TO
FISRT AMENDMENT TO
OPTION AGREEMENT FOR SALE AND PURCHASE
LEGAL DESCRIPTION
That portion of Sections 19 and 20, Township 41 South, Range 41 East, Palm Beach
County, Florida, lying south of the Seaboard A.L. Railroad.
