Parcel 185FEE Novation Agmt.
PROJECT: 60040
PARCEL: 185FEE
FOLIO NO.: 37228720009
NOVATION PURCHASE AGREEMENT
(For Stormwater Retention Pond Sites)
THIS PURCHASE AGREEMENT is made and entered into on this 17 day of
7u 1-1 ' 2008, by and between HERBERT E. HENDERSON, whose mailing
address is 31 8th Street SE, Naples, FL 34117 - 9350, (hereinafter referred to as "Seller"), and
COLLIER COUNTY, a political subdivision of the State of Florida, whose mailing address is
3301 Tamiami Trail East, Naples, Florida 34112, (hereinafter referred to as "Purchaser").
WHEREAS, Seller owns that certain property more particularly described as the East
200 feet of Tract 130, Golden Gate Estates Unit No. 13, according to the plat thereof, as
recorded in Plat Book 7, Pages 71 through 72, of the public records of Collier County, Florida,
(Folio No. 37228720009) together with all structures and improvements, (hereinafter referred to
as "Property"); and
WHEREAS, Purchaser requires the Property for stormwater retention purposes as part of
the Golden Gate Boulevard Project; and
WHEREAS, the Purchase Agreement dated April 10, 2008, is voidable due to insufficient
authority, and the parties wish to replace that agreement with this Novation Purchase
Agreement at a new purchase price of $187,100.00; and
WHEREAS, Resolution No. 2007-306 authorizes the Chairman of the Board of County
Commissioners (Board) to execute this Agreement without further Board action; and
WHEREAS, Seller has agreed to sell and Purchaser has agreed to buy the Property
subject to the terms and conditions that follow.
NOW THEREFORE, in consideration of these premises, the sum of Ten Dollars ($10.00),
and other good and valuable consideration, the receipt and sufficiency of which is hereby
mutually acknowledged, it is agreed by and between the parties as follows:
1. AGREEMENT
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, as
described above.
2. PURCHASE PRICE
The purchase price (the "Purchase Price") for the Property shall be $187,100.00 (U.S.
Currency) payable at time of closing to the Bella Y. Patel Trust Account. Purchaser shall also
pay Seller's attorney fees and costs in the amount of $6,560.00 payable to the Bella Y. Patel
Trust Account. The Purchase Price shall be subject to the apportionment and distribution of
proceeds pursuant to Paragraph 3D of this Agreement. The total payment of $193,660.00 shall
be full compensation for the Property conveyed, including all landscaping, trees, shrubs,
improvements, and fixtures located thereon, and shall be in full and final settlement of any and
all claims against the Purchaser, including all attorneys' fees, expert witness fees and costs as
provided for in Chapter 73, Florida Statutes. None of this Purchase Price is attributed to any
personal property.
3. CLOSING
A. TIME IS OF THE ESSENCE to this Agreement. Therefore, the Closing (THE
"CLOSING DATE", "DATE OF CLOSING", OR "CLOSING") of the transaction shall be
held on or before one hundred twenty (120) 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. Purchaser shall be entitled to possession as of
Closing, unless otherwise provided herein.
B. Seller shall convey a marketable title 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 or before 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:
1. Warranty Deed in favor of Purchaser conveying title to the Property, free and
clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
2. Combined Purchaser-Seller closing statement.
3. A "Grantor's Non-Foreign, Taxpayer Identification & "Gap" 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.
4. A W-9 Form, "Request for Taxpayer Identification and Certification" as required
by the Internal Revenue Service.
5. 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.
C. At the Closing, the Purchaser, or its assignee, shall cause to be delivered to the
Seller the following:
1. A negotiable instrument in an amount equal to Net Cash to Seller on the Closing
Statement. No funds shall be disbursed to Seller until the Title Company 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 6
"Requirements and Conditions for Closing" 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.
2. Funds payable to the Seller representing the Purchase Price shall be subject to
adjustments and pro-rations as hereinafter set forth.
D. Purchaser shall pay all fees to record any curative instruments required to clear title,
all Warranty Deed recording fees, and any and all costs and/or fees associated with
securing and recording a Release or Subordination of any mortgage, lien or other
encumbrance recorded against the Property; provided, however, that any apportionment
and distribution of the full compensation amount in Section 2 which may be required by
any mortgagee, lien-holder or other encumbrance-holder for the protection of its security
interest or as consideration for the execution of any release, subordination or satisfaction,
shall be the responsibility of the Owner, and shall be deducted on the Closing Statement
from the compensation payable to the Owner per Section 2. Seller, at its sole cost and
expense, shall pay at Closing all documentary stamp taxes due upon the recording of the
Warranty Deed, in accordance with Chapter 201.01, Florida Statutes, unless this
purchase is being acquired under threat of condemnation. The cost of the Owner's Form
B Title Policy, issued pursuant to the Commitment provided for in Section 6 below, shall
be paid by Purchaser. The cost of the title commitment shall also be paid by Purchaser.
E. Real Property taxes shall be prorated based on the current year's tax and
paid by Seller. If Closing occurs at a date which the current year's millage is not
fixed, taxes will be prorated based upon such prior year's millage.
4. INSPECTIONS
A. Inspection Period. Purchaser shall have 60 days from the Effective Date (Inspection
Period) to determine through appropriate investigation and inspection that the Property is
in compliance with all applicable State and Federal environmental laws and free of any
Hazardous Materials. Upon reasonable notice, Seller will provide Purchaser, and its
agents, with access to the Property for purposes of surveying, soil borings, site inspection
and analysis.
B. Election and Response. If Purchaser is not satisfied, for any reason, with the results
of this investigation, Purchaser may elect to terminate this Agreement, without penalty, by
giving written notice of its intent to terminate prior to expiration of the Inspection Period.
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Purchaser may elect to suspend its Notice of Termination if Seller notifies Purchaser in
writing within ten (10) days thereafter that Seller agrees to promptly carry out, at its sole
expense, all further investigations and remediation of the Property as necessary to make
the Property acceptable to Purchaser (hereinafter "Remedial Action") within a time period
acceptable to Purchaser. As a condition precedent for suspension of the Notice of
Termination, the parties shall agree to the specific term of such suspension and what will
render the Property acceptable to Purchaser.
C. "Hazardous Materials" means any substance: (1) the presence of which requires
investigation, remediation, or is, or becomes regulated under any federal. state, or local
law, regulation, order or policy; or (2) which is or becomes defined as a hazardous
substance, pollutant or contaminant under federal, state or local law or regulation; or (3)
which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous, or threatens the health or safety of persons on or
about the Property, and is being regulated by any governmental authority in the state of
Florida.
D. If Purchaser does not have the Property inspected, or fails to do so within the
Inspection Period, or fails to notify Seller of its intent to terminate, Purchaser shall be
deemed to have accepted the Property in the condition in which it existed on the Effective
Date.
5. RISK OF LOSS
Seller shall maintain the Property in the condition existing on the Effective Date until Closing or
date of Purchaser's possession, whichever is later, except for any Remedial Action agreed to
by Seller under Section 4B above. Any future loss and/or damage to the Property between the
Effective Date and the Closing or date of Purchaser's possession, whichever is earlier, shall be
at Seller's sole risk and expense.
6. REQUIREMENTS AND CONDITIONS FOR CLOSING
Upon execution of this Agreement by both parties or at such other time as specified within this
Section, 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:
A. Within fifteen (15) days after the date hereof, Purchaser shall obtain as evidence of
title an AL TA Commitment for an Owner's Title Insurance Policy (AL TA Form B-1970)
covering the Property, together with hard copies of all exceptions shown thereon.
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.
B. If Purchaser shall fail to advise the Seller in writing of any such objections in Seller's
title in the manner herein required by this Agreement, the title shall be deemed
acceptable. Upon notification of Purchaser's objection to title, Seller shall have thirty (30)
days to remedy any defects in order to convey good and marketable title, except for liens
or monetary obligations which will be satisfied at Closing. Seller, at its sole expense, shall
use its best efforts to make such title good and marketable. In the event Seller is unable
to cure said 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 any objection, or may terminate the Agreement.
C. Seller agrees to furnish any existing surveys of the Property in Seller's possession to
Purchaser within 10 (ten) days of the Effective Date of this Agreement. Purchaser shall
have the option, at its own expense, to cbtain a current survey of the Property prepared
by a surveyor licensed by the State of Florida. No adjustments to the Purchase Price
shall be made based upon any change to the total acreage referenced in the Property,
unless the difference in acreage revealed by survey exceeds 5% of the overall acreage. If
the survey provided by Seller or 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 to a public
roadway, the Purchaser shall notify the Seller in writing of such encroachment, projection,
or lack of legal access, and Seller shall have the option of curing said encroachment or
projection, or obtaining legal access to the Property from a public roadway. Purchaser
shall have sixty (60) days from the Effective Date of this Agreement to notify Seller in
writing of any such objections. Should Seller elect not to or be unable to remove the
encroachment, projection, or provide legal access to the property within sixty (60) days,
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Purchaser, by providing written notice to Seller within seven (7) days after expiration of
said sixty (60) day period, may accept the Property as it then is, waiving any objection to
the encroachment, or projection, or lack of legal access, or Purchaser may terminate the
Agreement. A failure by Purchaser to give such written notice of termination within the
time period provided herein shall be deemed an election by Purchaser to accept the
Property with the encroachment, or projection, or lack of legal access.
7. TERMINATION AND REMEDIES
A. If Seller shall have failed to perform any of the covenants and promises contained
herein, which are to be performed by Seller, within fifteen (15) days of written notification
of such failure, Purchaser may, at its option, terminate this Agreement by giving written
notice of termination to Seller. Purchaser shall have the right to 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.
B. 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 as required on the part of Purchaser to be performed, provided Seller is not in
default, then as Seller's sole remedy, Seller shall have the right to terminate and cancel
this Agreement by giving written notice thereof to Purchaser, whereupon $500.00 of the
Purchase Price shall be paid to Seller as liquidated damages which shall be Seller's sole
and exclusive remedy, and neither party shall have any further liability or obligation to the
other except as set forth in Section 10, Real Estate Brokers, hereof. 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 in nature.
C. 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.
8. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
Seller intends for Purchaser to rely on the representations contained in this Section in entering
into this Agreement and warrants the following:
A. Seller has 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.
B. Seller has full right, power, and authority to own and operate the Property, and 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
requested.
C. The warranties set forth in this Article are true on the Effective Date of this
Agreement and as of the date of Closing. Purchaser's acceptance of a deed to the said
Property shall not 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.
D. Owner and Purchaser agree to do al! things which may be required to give effect to
this Agreement immediately as such requirement is made known to them or they are
requested to do so, whichever is the earlier.
E. 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.
F. No party or person other than Purchaser has any right or option to acquire the
Property or any portion thereof.
Page NO.4
G. Until the date fixed for Closing or as 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.
H. 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.
Seller represents the Property has not been used for the production, handling, storage,
transportation, manufacture or disposal of Hazardous Materials as defined herein, or any
other activity that would have toxic results, and no such Hazardous Materials 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 is 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 Hazardous Materials are or were located on 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.
I. Seller has no knowledge that the Property, and/or that 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.
J. 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.
K. 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 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.
L. Seller acknowledges and agrees that Purchaser is entering into this Agreement
based upon Seller's representations stated herein 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.
M. 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.
9. NOTICES
Any notice, request, demand, instruction or other communication to be given to either party
Page No.5
hereunder shall be in writing sent by facsimile with automated confirmation of receipt, or
registered or certified mail, return receipt requested, postage prepaid or personal delivery
addressed as follows:
If to Purchaser:
With a copy to:
If to Seller:
With a copy to:
Transportation Engineering & Construction Management
Attn: Kevin Hendricks
Right-of-Way Acquisition Manager
2885 South Horseshoe Drive
Naples, Florida 34104
Telephone 239-252-8192
Fax 239-213-5885
Jennifer A. Belpedio
Assistant County Attorney
Office of the County Attorney
Harmon Turner Building
3301 Tamiami Trail East
Naples, Florida 34112
Telephone 239-252-8400
Fax 239-252-0225
Herbert E. Henderson
131 8th Street SE
Naples, FL 34117 - 9350
Telephone:
Fax
Bella Y. Patel, Esquire
Law Office of Bella Patel
13026 Waterford Run Drive
Riverview, FL 33569
Telephone 813-643-2762
Fax 813-643-2612
The addressees, addresses and numbers for the purpose of this Section 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 addressees, addresses and numbers only, unless
and until such written notice is received, the last addressee and respective address stated
herein shall be deemed to continue in effect for all purposes. Notice shall be deemed given in
compliance with this Section upon receipt of automated fax confirmation or upon on the fifth day
after the certified or registered mail has been postmarked, or physical receipt by hand delivery.
10. REAL ESTATE BROKERS
Any and all brokerage commissions or fees shall be the sole responsibility of the Seller and
shall be paid at Closing. Seller shall indemnify Purchaser from and against any claim or liability
for commission or fees to any broker or any other person or party claiming to have been a
procuring clause or engaged by Seller as a real estate broker, salesman or representative, in
connection with this Agreement.
11. MISCELLANEOUS
A. This Agreement may be executed in any manner of counterparts which together
shall constitute the agreement of the parties.
B. This Agreement and the terms and provisions hereof shall be effective as of the
Effective Date and shall 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.
C. 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 executed by both parties.
D. 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.
E. 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
Page No.6
use thereof may require.
F. 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 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.
G. 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.
H. 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 s. 286.23, Fla. Stat., 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.)
I. This Agreement is governed and construed in accordance with the laws of the State
of Florida.
J. The Effective Date of this Agreement will be the date of execution of this Agreement
by the last signing party.
K. This Agreement and the exhibits attached hereto contain the entire agreement
between the parties, and there are no promises, representations, warranties or covenants
by or between the parties not included in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first
above written.
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UNTrjfC MMISSIONERS
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NING, Chairman
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AS TO SELLER:
DATED: J4LL( n wo'l,
WITNESSES:
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(Pri ted Name) I
h~vL/
(Printed Name)
Approved as to form and
legal sufficiency:
Jen~~~
Assistant County Attorney
Page No.7