Combs Purchase Agreement
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made and entered into this L day of /YJyJtv{ ~
2004, by and between ELHANON COMBS, Individually and as Trustee (hereinafter
referred to as "Seller"), and COLLIER COUNTY, a political subdivision of the State of
Florida, (hereinafter referred to as "Purchaser").
WITNESSETH
WHEREAS, Seller is the owner of those certain parcels of real property described as
Golden Gate Estates Unit 1, Tract 105, according to the plat thereof recorded in Plat
Book 4, Page 73, of the public records of Collier County, Florida (Folio # 36617200005)
and Golden Gate Estates Unit 2, Tract 120, according to the plat thereof recorded in
Plat Book 4, Page 75, of the public records of Collier County, Florida (Folio #
36667320003) (hereinafter collectively referred to as the "Property"), located in Collier
County, State of Florida.
WHEREAS, Purchaser is desirous of purchasing the Property, subject to the conditions
and other agreements hereinafter set forth, and Seller is agreeable to such sale and to
such conditions and agreements.
NOW, THEREFORE, and for and in consideration of the premises and the respective
undertakings of the parties hereinafter set forth and the sum of Ten Dollars ($10.00), the
receipt and sufficiency of which is hereby acknowledged, it is agreed that the above
recitals are true and correct and incorporated herein by reference, and further agreed as
follows:
I. AGREEMENT
1.01 In consideration of the purchase price and upon the terms and conditions
hereinafter set forth, Seller shall sell to Purchaser and Purchaser shall
purchase from Seller the Property.
II. PAYMENT OF PURCHASE PRICE
2.01 The purchase price (the "Purchase Price") for the Property shall be ONE
MILLION, FORTY-FIVE THOUSAND DOLLARS ($1,045,000) (U.S. Currency)
payable at time of Closing.
III. CLOSING
3.01 The Closing (THE "CLOSING DATE", "DATE OF CLOSING", OR
"CLOSING") of the transaction shall be held within forty five (45) days following
execution of this Agreement by the Purchaser, unless extended by mutual
written agreement of the parties hereto. The Closing shall be held at the
Collier County Attorney's Office, Administration Building, 3301 Tamiami Trail
East, Naples, Florida. The pmcedure to be followed by the parties in
connection witt1 the Closing shall be as follows:
3.011 Seller shall convey a marketable title of the Property to Purchaser free of
any liens, encumbrances, exceptions, or qualifications. Marketable title shall be
determined according to applicable title standards adopted by the Florida Bar
and in accordance with law. At the Closing, the Seller shall cause to be
delivered to the Purchaser the items specified herein and the following
documents and instruments duly executed and acknowledged, in recordable
form:
3.0111 Warranty Deed in favor of Purchaser conveying title to the
Property, free and clear of all liens and encumbrances other than:
Agreement For Sale And Purchase
Page NO.1
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
3.0112 Combined Purchaser-Seller closing statement.
3.0113 A "Gap," Tax Proration, Owner's and Non-Foreign Affidavit,"
as required by Section 1445 of the Internal Revenue Code and as
required by the title insurance underwriter in order to insure the "gap"
and issue the policy contemplated by the title insurance commitment.
3.0114 A W-9 Form, "Request for Taxpayer Identification and
Certification" as required by the Internal Revenue Service.
3.0115 Such evidence of authority and capacity of Seller and its
representatives to execute and deliver this Agreement and all other
documents required to consummate this transaction, as reasonably
determined by Purchaser's counsel and/or Title Company and/or
Agent.
3.012 At the Closing, the Purchaser, or its assignee, shall cause to be delivered to
the Seller the following:
3.0121 A negotiable instrument (County Warrant) in an amount equal to the
Net Cash to Seller as shown on the Closing Statement. No funds shall be
disbursed to Seller until the Title Company and/or Agent verifies that the state
of the title to the Property has not changed adversely since the date of the last
endorsement to the Commitment, referenced in Section 4.011 (below), and the
Title Company is irrevocably committed to pay the Purchase Price to Seller
and to issue the Owner's title policy to Purchaser in accordance with the
Commitment immediately after the recording of the deed.
3.0122 Funds payable to the Seller representing the cash payment due at
Closing in accordance with Article III hereof, shall be subject to adjustment as
hereinafter set forth.
3.02 Each party shall be responsible for payment of its own attorney's fees.
Seller, at its sole cost and expense, shall pay at Closing all documentary
stamp taxes due relating to the recording of the Warranty Deed, in accordance
with Chapter 201.01, Florida Statutes, and the cost of recording any
instruments necessary to clear Seller's title to the Property. Purchaser shall
pay the cost of a title search and the minimum promulgated rate premium for
the Owner's Form B Title Policy, issued pursuant to the Commitment provided
for in Section 4.011 below.
3.03 Purchaser shall pay for the cost of recording the Warranty Deed. Real
Property taxes shall be prorated based on the current year's tax with due
allowance made for maximum allowable discount, homestead and any other
applicable exemptions and shall be paid by Seller through date of closing. If
Closing occurs at a date which the current year's millage is not fixed, taxes will
be prorated based upon the prior year's millage.
IV. REQUIREMENTS AND CONDITIONS
4.01 Upon execution of this Agreement by both parties or at such other time as
specified within this Article, Purchaser and/or Seller, as the case may be, shall
perform the following within the times stated, which shall be conditions
precedent to the Closing:
Agreement For Sale And Purchase
Page NO.2
4.011 Within fifteen (15) days after the date hereof, Purchaser shall obtain an
AL TA Commitment for an Owner's Title Insurance Policy (AL TA Form B-1970)
covering the Property. Purchaser shall have thirty (30) days, following receipt
of the title insurance commitment, to notify Seller in writing of any objection to
title other than liens evidencing monetary obligations, if any, which obligations
shall be paid at Closing. If the title commitment contains exceptions that make
the title unmarketable, Purchaser shall deliver to the Seller written notice of its
intention to waive the applicable contingencies or to terminate this Agreement.
If Purchaser shall fail to advise the Seller in writing of any such title objections
in Seller's title in the manner herein required by this Agreement within said 30-
day period, the title shall be deemed acceptable.
4.012 Upon notification of Purchaser's objection to Title Objections, Seller shall
have thirty (30) days to remedy, at its sole expense and using diligent, good
faith efforts, any such Title Objections in order to convey good and marketable
title. In the event Seller is unable to cure said Title Objections within said time
period, Purchaser, by providing written notice to Seller within seven (7) days
after expiration of said thirty (30) day period, may accept title as it then is,
waiving such Title Objections, or Purchaser may terminate the Agreement.
Purchaser's failure to terminate the Agreement as provided herein shall be
deemed a waiver by Purchaser of the Title Objections.
4.013 Seller agrees to furnish any existing surveys of the Property in Seller's
possession to Purchaser within Ten (10) days of execution of this Agreement.
Purchaser shall have the option, at its own expense, to obtain a current survey
of the Property prepared by a surveyor licensed by the State of Florida. If the
survey obtained by Purchaser, as certified by a registered Florida surveyor,
shows: (a) an encroachment onto the Property; or (b) that an improvement
located on the Property projects onto lands of others, or (c) lack of legal
access, the Purchaser shall, before expiration of the Inspection Period, notify
the Seller in writing of the encroachment, projection or lack of legal access,
and Seller shall treat it/them as Title Objections. Purchaser must raise any
objections arising from matters revealed by Purchaser's survey within the
Inspection Period set forth in Paragraph 5.01 of this Agreement or such
objections are waived. These objections will be treated as title objections and
paragraph 4.012 will apply.
V. INSPECTION PERIOD
5.01 Purchaser shall have thirty (30) days from the date of this Agreement
("Inspection Period") to determine through appropriate investigation that:
1. Soil tests and engineering studies indicate that the Property can be developed
without any abnormal demucking, soil stabilization or foundations.
2. There are no abnormal drainage or environmental requirements to the
development of the Property.
3. The Property is in compliance with all applicable State and Federal
environmental laws and the Property is free from any pollution or
contamination.
4. The Property can be utilized for its intended purpose.
5.02 Purchaser may terminate this Agreement by written notice to Seller before
expiration of the Inspection Period, in Purchaser's sole discretion. If Purchaser
fails to properly terminate this Agreement before expiration of the Inspection
Period, it shall be deemed that the Purchaser is satisfied with the results of its
investigations and the contingencies of this Article V shall be deemed waived. In
the event Purchaser elects to terminate this Agreement because of the right of
inspection, Purchaser shall deliver to Seller copies of all due diligence and
inspection documents obtained by Purchaser with respect to the Property during
Agreement For Sale And Purchase
Page NO.3
the Inspection Period (the "Diligence Documents"), including without limitation all
engineering reports and environmental and soil testing.
5.03 Purchaser and its agents, employees and servants shall, at their own risk and
expense, have the right to go upon the Property for the purpose of surveying and
conducting site analyses, soil borings and all other necessary investigation.
Purchaser shall, in performing such tests, use due care. Purchaser shall notify
seller no less than twenty four (24) hours prior to said inspection of the Property.
VI. POSSESSION
6.01 Purchaser shall be entitled to full possession of the Property at Closing.
VII. DEFAULT, TERMINATION AND REMEDIES
7.01 If Seller shall have failed to perform any of the covenants and/or agreements
contained herein which are to be performed by Seller, within ten (10) days of
written notification of such failure, Purchaser may, at its option, terminate this
Agreement by giving written notice of termination to Seller, or Purchaser may seek
and enforce all rights and remedies available at law or in equity to a contract
vendee, including the right to seek specific performance of this Agreement.
7.02 If the Purchaser has not terminated this Agreement pursuant to any of the
provisions authorizing such termination, and Purchaser fails to close the
transaction contemplated hereby or otherwise fails to perform any of the terms,
covenants and conditions of this Agreement following ten (10) days notice and
opportunity to cure, and, provided Seller is not in default, then as Seller's sole and
exclusive remedy, Seller shall have the right to terminate this Agreement for such
default by giving written notice thereof to Purchaser, whereupon half a percent
(0.5%) of the purchase price shall be paid to Seller as agreed-upon liquidated
damages, and neither party shall have any further liability or obligation to the other
except as set forth in paragraph 10.01 (Real Estate Brokers) below.
7.03 The parties acknowledge and agree that Seller's actual damages in the event
of Purchaser's default are uncertain in amount and difficult to ascertain, and that
said amount of liquidated damages was reasonably determined by mutual
agreement between the parties, and said sum was not intended to be a penalty.
The parties acknowledge that the remedies described herein and in the other
provisions of this Agreement provide mutually satisfactory and sufficient remedies
to each of the parties, and take into account the peculiar risks and expenses of
each of the parties.
VIII. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
8.01 Seller and Purchaser represent and warrant the following:
8.011 Seller and Purchaser have full right and authority to enter into and to
execute this Agreement and to undertake all actions and to perform all tasks
required of each hereunder. Seller is not presently the subject of a pending,
threatened or contemplated bankruptcy proceeding.
8.012 Seller has full right, power, and authority to execute, deliver, and perform
its obligations under this Agreement and the instruments executed in
connection herewith, and to consummate the transaction contemplated hereby.
All necessary authorizations and approvals have been obtained authorizing
Seller and Purchaser to execute and consummate the transaction
contemplated hereby. At Closing, certified copies of such approvals shall be
delivered to Purchaser and/or Seller, if necessary.
Agreement For Sale And Purchase
Page NO.4
8.013 The warranties set forth in this paragraph shall be true on the date of this
Agreement and as of the date of Closing. Purchaser's acceptance of the deed
to the said Property shall be deemed to be full performance and discharge of
every agreement and obligation on the part of the Seller to be performed
pursuant to the provisions of this Agreement.
8.014 Seller represents that it has no knowledge of any actions, suits, claims,
proceedings, litigation or investigations pending or threatened against Seller, at
law, equity or in arbitration before or by any federal, state, municipal or other
governmental instrumentality that relate to this Agreement or any other
property that could, if continued, adversely affect Seller's ability to sell the
Property to Purchaser according to the terms of this Agreement.
8.015 No party or person other than Purchaser has any right or option to
acquire the Property or any portion thereof.
8.016 Until the date fixed for Closing, so long as this Agreement remains in
force and effect, Seller shall not encumber or convey any portion of the
Property or any rights therein, nor enter into any agreements granting any
person or entity any rights with respect to the Property or any part thereof,
without first obtaining the written consent of Purchaser to such conveyance,
encumbrance, or agreement which consent may be withheld by Purchaser for
any reason whatsoever.
8.017 Seller represents that there are no incinerators, septic tanks or
cesspools on the Property; no waste is being discharged from the Property into
any disposal system or receptacle other than a public sanitary sewer system;
Seller represents that they have (it has) no knowledge that any pollutants are
or have been discharged from the Property, directly or indirectly into any body
of water; the Property has not been used for the production, handling, storage,
transportation, manufacture or disposal of hazardous or toxic substances or
wastes, as such terms are defined in applicable laws and regulations, or any
other activity that would have toxic results, and no such hazardous or toxic
substances are currently used in connection with the operation of the Property,
and there is no proceeding or inquiry by any authority with respect thereto.
Seller represents that they have (it has) no knowledge that there are any
ground water contamination on the Property or potential of ground water
contamination from neighboring properties. Seller represents no storage tanks
for gasoline or any other substances are presently or were previously located
on or under the Property at any time during or prior to Seller's ownership
thereof. Seller represents none of the Property has been used as a sanitary
landfill.
8.018 Seller has no knowledge that the Property and Seller's operations
concerning the Property are in violation of any applicable Federal, State or
local statute, law or regulation, or of any notice from any governmental body
has been served upon Seller claiming any violation of any law, ordinance, code
or regulation or requiring or calling attention to the need for any work, repairs,
construction, alterations or installation on or in connection with the Property in
order to comply with any laws, ordinances, codes or regulation with which
Seller has not complied.
8.019 There are no unrecorded restrictions, easements or rights of way (other
than existing zoning regulations) that restrict or affect the use of the Property,
and there are no maintenance, construction, advertising, management,
leasing, employment, service or other contracts affecting the Property.
8.020 Seller has no knowledge that there are any suits, actions or arbitration,
bond issuances or proposals therefore, proposals for public improvement
assessments, pay-back agreements, paving agreements, road expansion or
Agreement For Sale And Purchase
Page No.5
improvement agreements, utility moratoriums, use moratoriums, improvement
moratoriums, administrative or other proceedings or governmental
investigations or requirements, formal or informal, existing or pending or
threatened which affects the Property or which adversely affects Seller's ability
to perform hereunder; nor is there any other charge or expense upon or related
to the Property which has not been disclosed to Purchaser in writing prior to
the effective date of this Agreement.
8.021 Seller acknowledges and agrees that Purchaser is entering into this
Agreement based upon Seller's representations stated above and on the
understanding that Seller will not cause the zoning or physical condition of the
Property to change from its existing state on the effective date of this
Agreement up to and including the Date of Closing. Therefore, Seller agrees
not to enter into any contracts or agreements pertaining to or affecting the
Property and not to do any act or omit to perform any act which would change
the zoning or physical condition of the Property or the governmental
ordinances or laws governing same. Seller also agrees to notify Purchaser
promptly of any change in the facts contained in the foregoing representations
and of any notice or proposed change in the zoning, or any other action or
notice, that may be proposed or promulgated by any third parties or any
governmental authorities having jurisdiction of the development of the Property
which may restrict or change any other condition of the Property.
8.022 Seller represents, warrants and agrees to indemnify, reimburse, defend
and hold Purchaser harmless from any and all costs (including attorney's fees)
asserted against, imposed on or incurred by Purchaser, directly or indirectly,
pursuant to or in connection with the application of any federal, state, local or
common law relating to pollution or protection of the environment which shall
be in accordance with, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601,
et seq., ("CERCLA" or "Superfund"), which was amended and upgraded by the
Superfund Amendment and Reauthorization Act of 1986 ("SARA"), including
any amendments or successor in function to these acts. This provision and
the rights of Purchaser, hereunder, shall survive Closing and are not deemed
satisfied by conveyance of title.
8.023 Any loss and/or damage to the Property between the date of this
Agreement and the date of Closing shall be Seller's sole risk and expense.
IX. NOTICES
9.01 Any notice, request, demand, instruction or other communication to be given
to either party hereunder shall be in writing, sent by facsimile with confirmation of
transmission or by registered, or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to Purchaser: Transportation Eilgineering & Construction Management
Attention: Right-of-Way Acquisition Section Manager
2885 South Horseshoe Drive
Naples, Florida 34104
Fax Number: (239) 213-5885
With a copy to: Ellen T. Chadwell
Assistant County Attorney
Office of the County Attorney
Harmon Turner Building
3301 Tamiami Trail East
Naples, Florida 34112
Agreement For Sale And Purchase Page NO.6
If to Seller:
Elhanon Combs, Trustee
2145 Coach House Lane
Naples, Florida 34105
With a copy to:
Peter T. Flood, Attorney
125 North Airport Road
Suite 202
Naples, Florida 34104
9.02 The numbers, addressees and addresses for the purpose of this Article may
be changed by either party by giving written notice of such change to the other
party in the manner provided herein. For the purpose of changing such numbers,
addresses or addressees only, unless and until such written notice is received, the
last addressee and respective address and number stated herein shall be deemed
to continue in effect for all purposes.
X. REAL ESTATE BROKERS
10.01 Any and all brokerage commissions or fees shall be the sole responsibility
of the Seller. Seller shall indemnify Purchaser and hold Purchaser harmless from
and against any claim or liability for commission or fees to any broker or any other
person or party claiming to have been engaged by Seller as a real estate broker,
salesman or representative, in connection with this Agreement. Seller agrees to
pay any and all commissions or fees at closing pursuant to the terms of a separate
agreement, if any.
XI. MISCELLANEOUS
11.01 This Agreement may be executed in any manner of counterparts which
together shall constitute the agreement of the parties.
11.02 This Agreement and the terms and provisions hereof shall be effective as of
the date this Agreement is executed by both parties and shall be binding on and
inure to the benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, successors, successor trustee, and
assignees whenever the context so requires or admits.
11.03 Any amendment to this Agreement shall not bind any of the parties hereof
unless such amendment is in writing and executed and dated by Purchaser and
Seller. Any amendment to this Agreement shall be binding upon Purchaser and
Seller as soon as it has been fully eXGcuted by both parties.
11 .04 Captions and section headings contained in this Agreement are for
convenience and reference only; in no way do they define, describe, extend or
limit the scope or intent of this Agreement or any provisions hereof.
11.05 All terms and words used in this Agreement, regardless of the number and
gender in which used, shall be deemed to include any other gender or number as
the context or the use thereof may require.
11.06 No waiver of any provision of this Agreement shall be effective unless it is in
writing signed by the party against whom it is asserted, and any waiver of any
provision of this Agreement shall be applicable only to the specific instance to
Agreement For Sale And Purchase
Page No. 7
which it is related and shall not be deemed to be a continuing or future waiver as
to such provision or a waiver as to any other provision.
11.07 If any date specified in this Agreement falls on a Saturday, Sunday or legal
holiday, then the date to which such reference is made shall be extended to the
next succeeding business day.
11.08 Seller is aware of and understands that the "offer" to purchase represented
by this Agreement is subject to acceptance and approval by the Board of County
Commissioners of Collier County, Florida.
11.09 If the Seller holds the Property in the form of a partnership, limited
partnership, corporation, trust or any form of representative capacity whatsoever
for others, Seller shall make a written public disclosure, according to Chapter 286,
Florida Statutes, under oath, of the name and address of every person having a
beneficial interest in the Property before Property held in such capacity is
conveyed to Collier County. (If the corporation is registered with the Federal
Securities Exchange Commission or registered pursuant to Chapter 517, Florida
Statutes, whose stock is for sale to the general public, it is hereby exempt from the
provisions of Chapter 286, Florida Statutes.)
11 .10 This Agreement is governed and construed in accordance with the laws of
the State of Florida.
11 .11 If any term or provision of this Agreement or the application thereof to any
person or circumstances shall, to any extent, be declared invalid or unenforceable
by a court of competent jurisdiction, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, such term or provision shall be modified to the minimum extent
necessary to make it or its application valid and enforceable, and the validity and
enforceability of all other provisions of this Agreement and all other applications of
any such term or provision shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
XII. ENTIRE AGREEMENT
12.01 This Agreement and the exhibits attached hereto contain the entire
agreement between the parties, and no promise, representation, warranty or
covenant not included in this Agreement or any such referenced agreements has
been or is being relied upon by either party. No modification or amendment of this
Agreement shall be of any force or effect unless made in writing and executed and
dated by both Purchaser and Seller.
IN WITNESS WHEREOF, the parties hereto set forth their hands and seals.
AS TO PURCHASER:
DATED: --.A -I Z ..05
, BO/l/.',·
.,¿\'>J........~,,>.f'.i t..;."
ATTEST.r.;, .·'·r .... " .' .
. . ";;'-iJ . ~ ~.:' ~""',y .~~,._^ :~J. ", t;.i_,. '.
'H~~j . ,/.
DW I G ~-r:~·..ÅI;1!tØ¡Ip:~~'C'lèt~(
~:~..... ~'!f l·,o/..~ ~ '<l,j· "." ~-.j ..
~ ~i~. (~:~?...,:;!,!?~. ):~ j
. "",}.'. . a'il: . ',': .
, '. - " \". . ,'~" I·
. .
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY: ~w. ~
Fred W. Coyle, Chairman
Agreement For Sale And Purchase
Page No.8
AS TO SELLER:
r--
/)-/'- -0 \
DATED: -S U
WITNESSES:
~~
- f:b- <---11 :/ u \:)'-
(Printed Name)
~;;u~ eh~
,-if /!/Ú..L-'l?/' ¿ /. &6 v ç
(Printed Name)
Approved as to form and
:&iciency:
.,;J~
..../ Ellen T. Chadwell
Assistant County Attorney
Agreement For Sale And Purchase
ELHANON COMBS, Individually and as
Trustee..,-"..., .~ /77>.
~ / &
BY" / ~,. . ~
Page NO.9