Purchase and Sale Agreement
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made between
HOMESALES, INC, A DELAWARE CORPORATION ("Seller") and COLLIER
COUNTY, a POLITICAL SUBDIVISION OF THE STATE OF FLORIDA non-profit
corporation, whose address is 3301 Tamiami Trail E, Naples, Florida 34112 ("Purchaser"),
(together, the "Parties" and individually, the "Party") and is effective as of
, 2009 (the "Effective Date").
Recitals:
Seller owns certain real property and improvements located at 5501 SW 17th Ave, City of
Naples, County of Collier, State of Florida, legally described on Exhibit A attached to this
Agreement ("Property") which it wishes to sell, and which Purchaser wishes to purchase; and
The sale and purchase of the Property shall also be subject to a number of conditions, as each is
described by this Agreement;
Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
Communitv Stabilization Prol!ram. The Parties acknowledge that the sale and purchase of the
Property is being made pursuant to the desire of the Parties to facilitate the stabilization of
neighborhoods impacted by the current crisis in the national housing market. Purchaser
acknowledges that Seller has previously entered into certain conveyances with buyers of other
properties which are intended to be consummated using federal funds distributed as part of the
emergency assistance for the redevelopment of abandoned and foreclosed homes under Section
2301 of Title 3 of Division B of the Housing and Economic Recovery Act of 2008 ("HERA") and
the National Stabilization Guidelines of the Department of Housing and Urban Development
("NSP Guidelines") and amendments thereto. The parties hereby acknowledge that such federal
funding [check applicable provision] IS 0 IS NOT t8J being used in this transaction. If such
federal funding is being used, the Parties agree that this transaction is intended to comply with
the provisions of HERA and the NSP Guidelines.
2. Sale of Prooerty and Descriotion. Subject to compliance with the terms and conditions
of this Agreement, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the
Property .
3. Purchase Price. The Purchase Price for the Property shall be Sixty Three Thousand
Nine Hundred and 00/100 Dollars ($63,900.00) (the "Purchase Price"). However, the amount
payable by Purchaser to Seller for the purposes of this transaction as the consideration to be paid
shall be Forty Two Thousand One Hundred Twenty Two and 00/100 Dollars ($42,122.00)
("Total Adiusted Sales Price"). The term Total Adjusted Sales Price shall be determined by the
Seller and Purchaser taking certain agreed upon sums and applying such sums to the following
formula: (a) Seller's Estimate of Fair Market Value (as described below) less (b) Seller
Adjustments (as described below) and plus the Earnest Money. Consequently the amount
payable by Purchaser to Seller shall be payable as follows:
(a) Zero and 00/100 Dollars ($0.00) ("Earnest Money") which shall be delivered to
the account of Title (defined below) within three working days after execution of this
Agreement, pursuant to the Earnest Money Addendum to Purchase Agreement attached to
this Agreement or as otherwise set forth at Paragraph 42 hereof; and
(b) Forty Two Thousand One Hundred Twenty Two and 00/100 Dollars
($42.122.00) representing the balance of the Total Adjusted Sales Price payable in
certified check, bank check or wire transfer on the Closing Date.
For the purposes of this Paragraph 3 the Total Adjusted Sales Price is an agreed upon sum
intended to be less than the Purchase Price. In addition, the Total Adjusted Sales Price will be
less than Seller's Estimate of Fair Market Value provided to Purchaser pursuant to negotiations
which have occurred prior to the Effective Date. The Seller Adjustments are those agreed upon
reductions to the Seller's Estimate of Fair Market Value derived through negotiations with the
Purchaser prior to the Effective Date. Such Seller Adjustments include a number of factors
which have been disclosed by Seller to Purchaser or by Purchaser's due diligence prior to the
Effective Date, including but not limited to (a) reduced sales and marketing costs, avoided
property rehabilitation and maintenance costs, avoided taxes and insurance expenses, and
any other holding costs avoided during an assumed holding period, (b) the benefit of an
expeditious sale in the specific local market recognizing changes in market value over time
during an assumed holding period, and (c) the impact on net present value of receiving
cash payments in advance of expected sale through traditional marketing methods.
4. Time of the Essence: Closinl! Date:
a) It is agreed that time is of the essence with respect to all dates specified in this
Agreement and any addenda, riders or amendments thereto. This means that all
deadlines are intended to be strict and absolute.
b) The closing shall take place on or before Mav 22. 2009 ("Closing Date"), unless
the Closing Date is extended in writing signed by Seller and Purchaser or
extended by Seller under the terms of this Agreement. The closing shall be held in
the offices of the title company of Purchaser's choice, Seller's attorney or
Purchaser's attorney, or at a place so designated and approved by Seller, unless
otherwise required by applicable law. If the closing does not occur by the date
specified in this Paragraph or in any extension, this Agreement is automatically
terminated.
c) In the event Seller agrees to Purchaser's request for a written extension of this
Agreement, Purchaser agrees to pay to Seller a per diem of $50 through and
including the date specified in the written extension ("Extended Closing Date").
If the sale does not close by the Extended Closing Date, Seller may retain any
Earnest Money deposit and the accrued per diem payment as liquidated damages.
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5. Inspections:
a) Before entering into this Agreement, the Purchaser has inspected the Property and
obtained for its own use, benefit and reliance, inspections and/or reports on the
condition of the Property, and has accepted the Property. The Purchaser shall
keep the Property free and clear of liens and indemnify and hold the Seller
harmless from all liability claims, demands, damages, and costs related to the
Purchaser's inspection and any inspection conducted by Purchaser after the date
of this Agreement, and the Purchaser shall repair all damages arising from or
caused by the inspections. The Purchaser shall not directly or indirectly cause any
inspections to be made by any government building or zoning inspectors or
government employees without the prior written consent of the Seller, unless
required by law, in which case, the Purchaser shall provide reasonable notice to
the Seller prior to any such inspection. If the Seller has winterized this Property
and the Purchaser desires to have the Property inspected, listing agent will have
the Property dewinterized prior to inspection and rewinterized after inspection.
The Purchaser agrees to pay this expense in advance to the listing agent. The
amount paid under this provision shall be nonrefundable.
In situations that are applicable, (a) structural, electrical, mechanical, plumbing,
termite inspection, zoning, code compliance or pending improvements reports
relating to the Property, (b) notices of any violations of laws or governmental
ordinances, regulations or laws relating to the Property, or (c) any pending or
threatened litigation relating to the Property may have been prepared for the
benefit of the Seller. Where such items are in the possession of the REO
department of the Seller or Seller's real estate agent, if engaged by Seller in
connection with this transaction, upon written request the Purchaser will be
allowed to review the notices and report(s) to obtain the same information and
knowledge the Seller has about the condition of the Property. The Purchaser
acknowledges that the inspection reports were prepared for the sole use and
benefit of the Seller. The Purchaser will not rely upon any such inspection reports
obtained by the Seller in making a decision to purchase the Property, provided
however, Purchaser shall have ten (10) business days after review of the said
reports and notices to terminate this Agreement, whereupon all Earnest Money
shall be immediately returned to the Purchaser and the Agreement shall be null
and void and neither party shall have any further rights or liabilities hereunder
except as provided in Section 21 of this Agreement..
6. Personal Property: Items of personal property, including but not limited to window
coverings, appliances, manufactured homes, mobile homes, vehicles, spas, antennas, satellite
dishes and garage door openers, now or hereafter located on the Property are not included in this
sale or the Purchase Price unless the personal property is specifically described and referenced
on Exhibit B attached to and made a part of this Agreement. Any personal property at or on the
Property may be subject to claims by third parties and, therefore, may be removed from the
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Property prior to the Closing Date. Seller makes no representation or warranty as to the
condition of any personal property, title thereto, or whether any personal property is encumbered
by any liens. Purchaser assumes responsibility for any personal property remaining on the
Property at the time of closing.
7. Closinl! Costs and Adiustments:
a) Purchaser and Seller agree to prorate the following expenses as of closing and
funding: municipal water and sewer charges, utility charges, real estate taxes and
assessments, common area charges, condominium or planned unit development or
similar community assessments, co-operative fees, maintenance fees, and rents, if
any. In determining prorations, the funding date shall be allocated to Purchaser.
Payment of special assessment district bonds and assessments, and payment of
homeowner's association or special assessments shall be paid current and prorated
between Purchaser and Seller as of Closing Date with payments not yet due and
owing to be assumed by Purchaser without credit toward Purchase Price. The
Property taxes shall be prorated based on an estimate or actual taxes from the
previous year on the Property. All prorations shall be based upon a 30-day month
and all such prorations shall be final. Seller shall not be responsible for any
amounts due, paid or to be paid after closing, including but not limited to, any
taxes, penalties or interest assessed or due as a result of retroactive, postponed or
additional taxes resulting from any change in use of, or construction on, or
improvement to the Property, or an adjustment in the appraised value of the
Property. In the event Seller has paid any taxes, special assessments or other fees
and there is a refund of any such taxes, assessments or fees after closing, and
Purchaser as current owner of the Property receives the payment, Purchaser will
immediately submit the refund to Seller. If the Property is heated by or has
storage tanks for fuel oil, liquefied petroleum gases or similar fuels, Purchaser
will buy the fuel in the tank at closing at the current price as calculated by the
supplier.
b) Purchaser shall pay all other costs and fees incurred in the transfer of the
Property, including cost of any inspection, home warranty, termite or insect
infestation, remediation, survey, title policy, escrow or closing fees, vacant
building boundary fee, or vacant building fee, except to the extent negotiated
between the Parties and as set forth in Paragraph 42.
c) If Fannie Mae is the owner and Seller hereunder, Purchaser acknowledges that
Fannie Mae is a congressionally chartered corporation and is exempt from realty
transfer taxes pursuant to 12 U.S.c. 1 723a(c)(2).
8. Deliverv of Funds: Regardless of local custom, requirements, or practice, upon delivery
of the deed by Seller to Purchaser, Purchaser shall deliver all funds due Seller from the sale in
the form of bank check, certified check or wire transfer. An attorney's trust fund check shall not
be sufficient to satisfy this provision unless the bank holding the account on which the trust fund
check is drawn certifies the trust fund check.
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9. Delivery of Possession of Property: Seller shall deliver possession of the Property to
Purchaser at closing and funding of sale. Seller warrants and covenants with Purchaser that
(a) the Property was vacant and unoccupied at the time of commencing discussions with
Purchaser for the purchase of the Property, is vacant and unoccupied as of the Effective
Date and will be delivered to Purchaser at the closing in a vacant and unoccupied
condition, (b) the availability or existence of the federal funds under HERA has not
induced the Lender's commencement of the foreclosure proceedings, any deed in lieu of
foreclosure or other enforcement procedures which has resulted in Seller's ownership of
the Property, and (c) all foreclosure proceedings and any eviction actions are completed
and any redemption periods of the prior foreclosed mortgagor/owner and all persons
claiming through such person(s) have expired. If Purchaser alters the Property or causes the
Property to be altered in any way and/or occupies the Property or allows any other person to
occupy the Property prior to closing and funding without the prior written consent of Seller, such
event shall constitute a breach by Purchaser under this Agreement and Seller may terminate this
Agreement and Purchaser shall be liable to Seller for damages caused by any such alteration or
occupation of the Property prior to the Closing Date and funding and Purchaser hereby waives
any and all claims for damages or compensation for improvements made by Purchaser to the
Property including, but not limited to, any claims for unjust enrichment.
10. Deed: The deed to be delivered at closing shall be a deed that covenants that grantor
grants only that title which grantor may have and that grantor will only defend title against
persons claiming by, through, or under the grantor, but not otherwise (which deed may be known
as a Special Warranty, Limited Warranty, Quit Claim or Bargain and Sale Deed). Any reference
to the term "Deed" or "Special Warranty Deed" herein shall be construed to refer to such form of
deed. It is the intent of Seller to deliver marketable title to the subject property through the
conveyance of the Special Warranty Deed or comparable instrument.
11. Title to be Delivered. At Closing, Seller agrees to deliver to Purchaser the Deed, which
conveys marketable fee simple title in the Property to Purchaser subject only to the Permitted
Exceptions set forth in Paragraph 42(a).
12. Title and Examination.
a) Within five (5) days from the Effective Date, Seller will order a commitment for a
title insurance policy (the "Title Commitment") issued by New House Title,
L.L.C, ("Title") and provide a copy to Purchaser. Purchaser shall have five (5)
days from the date of its receipt of the Title Commitment to examine title and
make any objections thereto, which shall be made in writing to Seller or deemed
waived. If any objections are so made, Seller shall be allowed 60 days to make
title marketable. Pending correction of title, payments hereunder required shall be
postponed, but upon correction of title and within ten (10) days after written
notice to Purchaser, the Parties shall perform this Agreement according to its
terms.
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13. Defects in Title:
Upon examination of the Title Commitment by Purchaser and notice to Seller of a title
objection, the Parties agree to proceed as follows:
a) If Purchaser raises an objection to Seller's title to the Property as provided in
Paragraph 12, which, if valid, would make title to the Property uninsurable and
not correctable within sixty (60) days, Seller shall have the right to terminate this
Agreement by giving written notice of the termination to Purchaser, provided
however, Purchaser shall have the right within 5 days of such notice to either
waive such defect or request Seller to proceed under Paragraph 13(c) below.
b) However, if Seller is able to correct the problem through reasonable efforts, as
Seller determines, at its sole and absolute discretion, within said sixty (60) day
period, including any written extensions, or if title insurance is available from a
reputable title insurance company at regular rates containing affirmative coverage
for the title objections, as provided below or Purchaser waives the defect, then
this Agreement shall remain in full force and Purchaser shall perform pursuant to
the terms set in this Agreement.
c) Seller will cooperate with any title insurance company and Purchaser on the title
corrections to remove any such exception or to make the title insurable, but any
attempt by Seller to remove such title exceptions shall not impose an obligation
upon Seller to remove those exceptions.
d) In the event Seller, within such sixty (60) day period is not able to (i) make the
title insurable or correct any problem or (ii) obtain title insurance from a reputable
title insurance company, all as provided herein, Purchaser may either waive the
objection or terminate this Agreement and any Earnest Money deposit will be
returned to Purchaser as Purchaser's sole remedy at law or equity.
14. Representations and Warranties:
Purchaser represents and warrants to Seller the following:
a) Purchaser is purchasing the Property solely in reliance on its own investigation
and inspection of the Property and not on any information, representation or
warranty provided or to be provided by Seller, its servicers, representatives,
brokers, employees, agents or assigns;
b) Neither Seller, nor its servicers, employees, representatives, brokers, agents or
assigns, has made any representations or warranties, implied or expressed,
relating to the condition of the Property or the contents thereof, except as
expressly set forth in Paragraph 5(a) of this Agreement;
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c) Purchaser has not relied on any representation or warranty from Seller regarding
the nature, quality or workmanship of any repairs made by Seller; and
d) Purchaser will not occupy or cause or permit others to occupy the Property prior
to closing and funding and, unless and until any necessary Certificate of
Occupancy has been obtained from the appropriate governmental entity.
15. Conditions to the Parties' Performance:
a) Seller shall have the right, at Seller's sole discretion, to extend the Closing Date or
to terminate this Agreement if:
1. full payment of any mortgage insurance claim related to the loan
previously secured by the Property is not confirmed prior to the Closing
Date or the mortgage insurance company exercises its right to acquire title
to the Property;
11. Seller determines that it is unable to convey good and marketable title to
the Property insurable by a reputable title insurance company at regular
rates;
111. Seller has requested that the servlcmg lender, or any other Party,
repurchase the loan previously secured by the Property;
IV. a third Party with rights related to the sale of the Property does not
approve the sale terms;
v. full payment of any property, fire or hazard msurance claim IS not
confirmed prior to the Closing Date;
VI. any third Party, whether homeowner's association, or otherwise, exercises
rights under a right of first refusal to purchase the Property;
V11. Purchaser is the former mortgagor of the Property whose interest was
foreclosed, or is related to or affiliated in any way with the former
mortgagor, and Purchaser has not disclosed this fact to Seller prior to
Seller's acceptance of this Agreement. Such failure to disclose shall
constitute default under this Agreement, entitling Seller to exercise any of
its rights and remedies; or
V111. Seller, at Seller's sole discretion, determines that the sale of the Property
to Purchaser or any related transactions are in any way associated with
illegal activity of any kind.
In the event Seller elects to terminate this Agreement as a result of subparagraph 15 (a)
(i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) above, Seller shall return Purchaser's Earnest Money
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deposit and the Parties shall have no further obligation under this Agreement except as to any
provision that survives termination pursuant to Paragraph 21 of this Agreement.
b) Purchaser's obligation to purchase the Property is subject to and conditioned upon
the fulfillment of the following conditions precedent:
(i) If Purchaser is using federal funds under HERA as described on page 1 of
this Agreement ("NSP Funds"), the receipt by Purchaser of an appraisal
consistent with the NSP Guidelines ("NSP Appraisal") in form and
appraised value acceptable to meet NSP Guidelines and support the Total
Adjusted Sales Price set forth above and in form and content acceptable to
Purchaser.
(ii) If Purchaser is using NSP Funds, the receipt by Purchaser of certain
required NSP Guidelines reports relating to environmental, historic district
conditions and other necessary NSP related due diligence reports ("NSP
Due Diligence Reports"), all in form and content acceptable to Purchaser.
In the event any of the foregoing conditions precedent to Purchaser's obligation to close
are not fulfilled on or before the Closing Date, Purchaser may either waive the objection or
terminate this Agreement and any Earnest Money deposit will be returned to Purchaser as
Purchaser's sole remedy at law or equity and the Parties shall have no further obligation under
this Agreement except as to any provision that survives termination pursuant to Paragraph 21 of
this Agreement. Unless otherwise agreed upon between the Parties and as reflected on the
closing statement for the transaction which is the subject of this Agreement, the cost of the
NSP Appraisal and the NSP Due Diligence Reports shall be at the sole cost and expense of
Purchaser.
16. Remedies for Default:
a) In the event of Purchaser's default, material breach or material misrepresentation
of any fact under the terms of this Agreement, Seller, at its option, may retain any
other funds then paid by Purchaser as liquidated damages and/or invoke any other
remedy expressly set out in this Agreement and Seller is automatically released
from the obligation to sell the Property to Purchaser and neither Seller nor its
representatives, agents, attorneys, successors, or assigns shall be liable to
Purchaser for any damages of any kind as a result of Seller's failure to sell and
convey the Property.
b) In the event of Seller's default or material breach under the terms of this
Agreement or if Seller terminates this Agreement as provided under the
provisions of this Agreement, Purchaser shall be entitled to the return of the
Earnest Money deposit as Purchaser's sole and exclusive remedy at law and/or
equity. Any reference to a return of Purchaser's Earnest Money deposit contained
in the Agreement shall mean a return of the Earnest Money deposit less any
escrow cancellation fees applicable to Purchaser under this Agreement and less
fees and costs payable for services and products provided during escrow at
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Purchaser's request. Purchaser waives any claims that the Property is unique and
Purchaser acknowledges that a return of its Earnest Money deposit can adequately
and fairly compensate Purchaser. Upon return of the Earnest Money deposit to
Purchaser, this Agreement shall be terminated, and Purchaser and Seller shall
have no further liability, no further obligation, and no further responsibility each
to the other and Purchaser and Seller shall be released from any further obligation
each to the other in connection with this Agreement.
c) Purchaser agrees that Seller shall not be liable to Purchaser for any special,
consequential or punitive damages whatsoever, whether in contract, tort
(including negligence and strict liability) or any other legal or equitable principle,
or any other such expense or cost arising from or related to this Agreement or a
breach of this Agreement.
d) Any consent by any Party to, or waiver of, a breach by the other, whether express
or implied, shall not constitute consent to, waiver of, or excuse for any different
or subsequent breach.
e) In the event either Party elects to exercise its remedies as described in this
Paragraph 16 of this Agreement, and this Agreement is terminated, the Parties
shall have no further obligation under this Agreement except as to any provision
that survives the termination of this Agreement pursuant to Paragraph 21 of this
Agreement.
17. Indemnification: Purchaser agrees to indemnify and fully protect, defend, and hold
Seller, its officers, directors, employees, shareholders, servicers, representatives, agents,
attorneys, tenants, brokers, successors or assigns harmless from and against any and all claims,
costs, liens, loss, damages, attorney's fees and expenses of every kind and nature that may be
sustained by or made against Seller, its officers, directors, employees, shareholders, servicers,
representatives, agents, attorneys, tenants, brokers, successors or assigns, resulting from or
arising out of:
a) inspections, repairs or improvements made by Purchaser or its agents, employees,
contractors, successors or assigns;
b) the imposition of any fine or penalty imposed by any municipal or governmental
entity resulting from Purchaser's failure to timely obtain any necessary Certificate
of Occupancy or to comply with equivalent laws and regulations; and
c) claims for amounts due and owed by Seller for taxes, homeowner association
dues or assessment or any other items prorated at closing under Paragraph 7 of
this Agreement, including any penalty or interest and other charges, arising from
the proration of such amounts for which Purchaser received a credit at closing
under Paragraph 7 of this Agreement.
18. Risk of Loss: Seller assumes all risk of loss related to damage to the Property prior to
the Closing Date. In the event of fire, destruction or other casualty loss to the Property after
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Seller's acceptance of this Agreement and prior to closing and funding, either Party may
terminate this Agreement and the Earnest Money deposit shall be returned to Purchaser and
neither Party shall have any further rights or liabilities hereunder except as provided in Paragraph
21 of this Agreement.
19. Eminent Domain: In the event that Seller's interest in the Property, or any part thereof,
shall have been taken by eminent domain or shall be in the process of being taken on or before
the Closing Date, either Party may terminate this Agreement and the Earnest Money deposit
shall be returned to Purchaser and neither Party shall have any further rights or liabilities
hereunder except as provided in Paragraph 21 of this Agreement.
20. Keys: Purchaser understands that if Seller is not in possession of keys, including but not
limited to, mailbox keys, recreation area keys, gate cards, or automatic garage remote controls,
then the cost of obtaining the same will be the responsibility of Purchaser. Purchaser also
understands that if the Property includes an alarm system, Seller cannot provide the access code
and/or key and that Purchaser is responsible for any costs associated with the alarm and/or
changing the access code or obtaining keys. If the Property is presently on a Master Key System,
Seller will re-key the exterior doors to the Property prior to closing and funding at Purchaser's
expense. Purchaser authorizes and instructs escrow holder to charge the account of Purchaser at
closing for the rekey.
21. Survival: Delivery of the deed to the Property to Purchaser by Seller shall be deemed to
be full performance and discharge of all of Seller's obligations under this Agreement.
Notwithstanding anything to the contrary in this Agreement, the provisions of Paragraph 17 of
this Agreement, as well as any other provision which contemplates performance or observance
subsequent to any termination or expiration of this Agreement, shall survive the closing, funding
and the delivery of the Deed and/or termination of this Agreement by any Party and continue in
full force and effect.
22. Severability: The invalidity, illegality or enforceability of any provlSlon of this
Agreement shall not affect the validity or enforceability of any other provlSlon of this
Agreement, all of which shall remain in full force and effect.
23. Assienment of Al!reement: Purchaser shall not assign this Agreement without the
express written consent of Seller. Seller may assign this Agreement at its sole discretion without
prior notice to, or consent of, Purchaser.
24. Entire Aereement: This Agreement, including the disclosure of information on lead
based paint and/or lead based paint hazards or Seller Disclosure and Release Addendum or other
disclosure forms or notices required by law, constitutes the entire agreement between Purchaser
and Seller concerning the subject matter hereof and supersedes all previous communications,
understandings, representations, warranties, covenants or agreements, either written or oral and
there are no oral or other written agreements between Purchaser and Seller. NO ORAL
PROMISES, REPRESENTATIONS (EXPRESSED OR IMPLIED), WARRANTIES OR
AGREEMENTS MADE BY SELLER AND/OR BROKERS OR ANY PERSON ACTING
ON BEHALF OF SELLER SHALL BE DEEMED VALID OR BINDING UPON SELLER
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UNLESS EXPRESSLY INCLUDED IN THIS AGREEMENT. All negotiations are merged
into this Agreement. Seller is not obligated by any other written or verbal statements made by
Seller, Seller's representatives, or any real estate licensee.
25. Modification: No provision, term or clause of this Agreement shall be revised, modified,
amended or waived except by an instrument in writing signed by Purchaser and Seller.
26. Riehts of Others: This Agreement does not create any rights, claims or benefits inuring
to any person or entity, other than Seller's successors and/or assigns, that is not a Party to this
Agreement, nor does it create or establish any third Party beneficiary to this Agreement.
27. Counterparts: This Agreement may be executed in any number of counterparts and
each such counterpart shall be deemed to be an original, but all of which, when taken together,
shall constitute one agreement.
28. Headines: The titles to the sections and headings of various paragraphs of this
Agreement are placed for convenience of reference only and in case of conflict, the text of this
Agreement, rather than such titles or headings shall control.
29. Gender: Unless the context otherwise requires, singular nouns and pronouns, when used
herein, shall be deemed to include the plural of such nouns or pronouns and pronouns of one
gender shall be deemed to include the equivalent pronoun of the other gender.
30. Force Maieure: Except as provided in Paragraph 18 to this Agreement, no Party shall be
responsible for delays or failure of performance resulting from acts of God, riots, acts of war,
epidemics, power failures, earthquakes or other disasters, providing such delay or failure of
performance could not have been prevented by reasonable precautions and cannot reasonably be
circumvented by such Party through use of alternate sources, workaround plans or other means.
31. Attorney Review: Purchaser acknowledges that Purchaser has had the opportunity to
consult with its legal counsel regarding this Agreement and that accordingly the terms of this
Agreement are not to be construed against any Party because that Party drafted this Agreement
or construed in favor of any Party because that Party failed to understand the legal effect of the
provisions of this Agreement.
32. Notices: Any notices required to be given under this Agreement shall be deemed to have
been delivered when actually received in the case of hand or overnight delivery, or five (5) days
after mailing by first class mail, postage paid. All notices to Seller will be deemed sent or
delivered to Seller when sent or delivered to Seller's listing broker or agent, at the address set
forth in Paragraph 1 or as otherwise provided in writing to the other Party. All notices to
Purchaser shall be deemed sent or delivered when sent or delivered to Purchaser or agent at the
address set forth in Paragraph I or as otherwise provided in writing to the other Party.
33. Successors and Assiens. This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of each of the Parties hereto.
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34. Invaliditv. If for any reason any portion or paragraph of this Agreement shall be
declared void and unenforceable by any court of law or equity it shall only affect such particular
portion or paragraph of this Agreement and the balance of this Agreement shall remain in full
force and effect and shall be binding upon the Parties hereto.
35. Attorneys' Fees. Each Party shall pay the fees and costs of its own counsel. In the event
a legal proceeding is commenced to enforce this Agreement, the prevailing Party shall be entitled
to reasonable attorneys' fees and costs from the other Party.
36. Cumulative Riehts. The rights, options, election and remedies contained in this
Agreement shall be cumulative; and no one such rights, options, elections and remedies shall be
construed as excluding any other of them or any right or remedy allowed or provided by law.
37. Governine Law. This Agreement shall be governed and construed in accordance with
the laws of the jurisdiction in which the Property is located.
38. [Paraeraph Intentionally Deleted].
39. Deliveries bv Seller. Within seven (7) days after the Effective Date, if not already
delivered to Purchaser, Seller shall deliver the following to Purchaser:
a) Copies of all licenses, permits, inspection reports, zonmg information and
Certificates of Occupancy in Seller's possession, if any.
b) All building plans, diagrams, architect drawings, surveys and construction or
architect contracts in Seller's possession, if any.
40. Closine Costs. The following costs and expenses shall be paid as follows in connection
with the closing.
a) Seller shall pay all fees required to obtain and record any documents necessary to
deliver clear title to the Property to Purchaser, including the amount of state deed
or transfer tax required to record the Deed.
b) Seller shall pay the following costs in connection with the closing:
(i) The cost of preparation of the Title Commitment;
(ii) All premiums and costs incurred in connection with the issuance of any
title insurance policy and endorsements.
41. Closine Documents. The following documents shall be executed and delivered at time
of closing:
a) Seller Documents:
(i) Deed;
12
(ii) Affidavit Regarding Seller;
(iii) FIRPT A Affidavit; and
(iv) Executed Settlement Statement.
b) Purchaser documents:
(i) Affidavit Regarding Purchaser;
(ii) Executed Settlement Statement; and
(iii) The balance of the Purchase Price due at Closing.
42. State and Local Specific Provisions
a) Permitted Exceptions. At Closing, Seller agrees to deliver to Purchaser the
Deed which conveys marketable fee simple title in the Property to Purchaser
subject only to the following ("Permitted Exceptions"):
(i) Zoning and subdivision laws and regulations, and landmark, historic or
wetlands designation, provided that they are not violated by the existing
buildings and improvements erected on the property or their use;
(ii) Real estate taxes that are a lien, but are not yet due and payable; and
(iii) Rights or claims of parties in possession not shown by the public records;
(iv) Easements, or claims of easements, not shown by the public records;
(v) Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate surveyor inspection of the premises;
(vi) Any lien, or right to a lien, for services, labor or material heretofore or
hereafter furnished, imposed by law and not shown by the public records;
(vii) Any adverse claim or any portion of said land which has been created by
artificial means or has accreted to any such portion so created and riparian
rights, if any;
(iii) Taxes or special assessments which are not shown as existing liens by the
public record
b) Condominium or Planned Unit Development. If the Property is a
condominium or planned unit development or co-operative, unless otherwise
required by law, Purchaser, at Purchaser's own expense, is responsible for
obtaining and reviewing the covenants, conditions and restrictions and bylaws of
the condominium, or planned unit development or cooperative within (IO) days of
13
execution of the Effective Date. Seller agrees to use reasonable efforts, as
determined at Seller's sole discretion, to assist Purchaser in obtaining a copy of
the covenants, conditions and restrictions and bylaws. Purchaser will be deemed
to have accepted the covenants, conditions and restrictions and by laws if
Purchaser does not notify Seller in writing, within 15 days of the Effective Date,
of Purchaser's objection to the covenants, conditions and restrictions and/or
bylaws.
c) Lead Paint Disclosure.
Seller represents that the dwelling was constructed on the real
property in 1978 or later.
l Seller represents that the dwelling was constructed on the real
property before 1978. (If such housing is located on the real
property, attached and made a part of this Agreement is the form,
LEAD PAINT ADDENDUM FOR HOUSING
CONSTRUCTED BEFORE 1978.)
d) Inspection. Notwithstanding the provisions of Paragraph 5 above relating to
inspections, the following shall govern the conduct of the Parties with respect to
such inspections: [NO FURTHER DISCLOSURE REQUIRED]
e) Seller Disclosure: (1) There are no facts known to Seller materially affecting the
value of the Property which are not readily observable by Buyer or which have
not been disclosed to Buyer: (2) Seller extends and intends no warranty and
makes no representation of any type, either express or implied, as to the
physical condition or history of the Property; and (3) Seller has received no
written or Verbal notice from any governmental entity or agency as to a
currently uncorrected building, environmental, or safety code violation.
f) Closing Costs and Adjustments. Notwithstanding the provisions of Paragraph
7 above relating to closing costs and adjustments, the following shall govern the
conduct of the Parties with respect to such closing costs and adjustments: [NO
FURTHER DISCLOSURE]
g) Title and Examination. Notwithstanding the provisions of Paragraph 12 above
relating to title and title examination, the following shall govern the conduct of
the Parties with respect to such title and title examination: [NO FURTHER
DISCLOSURE]
h) Closing Costs. In addition to the Closing Costs set forth at Paragraph 40 above,
the following closing costs shall be paid in the following manner: [NO
FURTHER DISCLOSURE]
14
i) BUYER WAIVER OF CLAIMS: Buyer waives any claims against Seller and to
the extent permitted by law, against any real estate licensee involved in the
negotiation of the Contract, for any defects or other damage that may exist at
Closing of the Contract and be subsequently discovered by the Buyer or anyone
claiming by, through, under or against the Buyer.
43. Seller Specific Provisions
a) Authorization to Title Company. The undersigned Purchaser and Seller hereby:
(i) authorize and direct Title or any title company or closing agent providing
services in connection with this transaction (the "Closing Agent") to furnish a
copy of any HUD-l Settlement Statement generated in connection with the
closing of this transaction, whether unsigned or signed by the Parties, showing
both the Purchaser's and Seller's sides of the transaction to the closing outsource
provider of the Seller; (ii) agree that the Closing Agent shall have no liability
under the Gramm-Leach-Bliley Act, any other statute or regulation relating to
privacy or information disclosure or otherwise as a result of its compliance with
the direction to release aforementioned HUD-l Settlement Statements to the
closing outsourcer; and (iii) agree that the closing outsourcer may furnish such
HUD-l Settlement Statements to any authorized agent of the Seller.
b) "AS IS" Sale. Purchaser is aware that Seller acquired the Property through either
a foreclosure or a deed-in-lieu of foreclosure, and that Seller is selling and
Purchaser is purchasing the Property in an "AS IS CONDITION WITHOUT
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
NATURE". Purchaser acknowledges, on behalf of itself, its opportunity to
inspect and investigate the Property and all improvements thereon, either
independently or through agents of Purchaser's choosing, and that in purchasing
the Property Purchaser is not relying on any statements or representations made
by Seller or Seller's agents as to the condition of the Property and/or any
improvements thereon, including BUT NOT LIMITED TO, heating, sewage,
roof, foundations, soils and geology, septic, lot size or suitability of the Property
and/or its improvements for particular purposes, or that any appliances, if any,
plumbing and/or utilities are in working order, and/or that the improvements are
structurally sound and/or in compliance with any local, city, county, state and/or
federal statutes, codes or ordinances. Purchaser(s) agrees to pay the fees for
inspections of his choice at the time of the physical inspection(s) including termite
inspection and report. If it is determined that there is mold in Property, Purchaser
shall not hold Seller liable for removal of, or exposure to, the mold. The closing
of this transaction shall constitute an acknowledgement by the Purchaser that
THE PREMISES WERE ACCEPTED WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND OR NA TURE AND IN AN "AS-IS"
CONDITION BASED SOLELY ON PURCHASER'S OWNER INSPECTION
AND THAT SELLER SHALL HAVE NO FURTHER OBLIGATIONS,
LIABILITIES OR RESPONSIBILITIES UNDER THE AGREEMENT OR ANY
15
ADDENDUM THERETO, ANYTHING TO THE CONTRARY
NOTWITHSTANDING.
c) Repairs. Purchaser(s) is purchasing the Property in its current "As Is" condition
subject only to such repairs as may be expressly required under the Agreement or
agreed to in writing by Seller and Purchaser(s) prior to closing. Should any
lender or any insuring entity or agency require that certain repairs to the Property
be made or that certain other conditions be met, the Seller, at its sole option, may
comply with such requirement or terminate the Agreement. Furthermore, should
any FHA Conditional Commitment or VA Certificate of Reasonable Value vary
from the agreed upon Purchase Price of the Property, then Seller, at its sole
option, may terminate the Agreement. Notwithstanding that repairs may be made
to the Property pursuant to the terms of this Agreement and prior to closing,
Purchaser(s) acknowledges that Seller has not made and shall not make any
representations or warranties of any character as to the necessity for any such
repairs, or the absence of any necessity therefore, or of the adequacy of any such
repairs upon completion thereof. Purchaser(s) agrees that it shall be solely the
responsibility of Purchaser(s) to inspect and verify, prior to closing, the
completion and adequacy of any and all such repair.
d) No Representation or Warranties. SELLER DOES NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL
CONDITION OF THE PROPERTY, THE APPLIANCES, UTILITY
FIXTURES, EQUIPMENT AND OTHER APPURTENANCES RELATING
THERETO; OR ANY OTHER MATTER AFFECTING OR RELATING TO
THE HEREIN DESCRIBED PROPERTY (OTHER THAN THE WARRANTY
OF TITLE ACCORDING TO THE SPECIAL WARRANTY DEED TO BE
DELIVERED AT CLOSING), AND THAT THE PURCHASER(S) HAS BEEN
AFFORDED AN ADEQUATE OPPORTUNITY TO INSPECT AND
EVALUATE THE CONDITION OF THE PROPERTY. PURCHASER(S)
HEREBY EXPRESSL Y ACKNOWLEDGES THAT NO SUCH
REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE, AND
PURCHASER(S) AGREES TO ACCEPT THE HEREIN DESCRIBED
PROPERTY "AS-IS" AND "WHERE-IS" AND WITHOUT WARRANTY,
EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OF THE
HEREIN DESCRIBED PROPERTY OR OF ITS FITNESS FOR ANY
PARTICULAR USE OR PURPOSE. NO REPRESENTATIONS, CLAIMS,
STATEMENT, ADVERTISING OR PROMOTIONAL ACTIVITIES MADE OR
CONDUCTED BY SELLER OR SELLER'S AGENTS OR
REPRESENT A TIVES SHALL BE BINDING UPON THE SELLER UNLESS
THE SAME ARE EXPRESSLY SET FORTH IN THE AGREEMENT, ITS
ADDENDA, OR A SUBSEQUENT WRITTEN AGREEMENT EXECUTED BY
THE SELLER AND PURCHASER(S).
e) Neither Purchaser nor any of its affiliates, and none of their respective employees,
officers, directors, representatives or agents is, nor will they become, a person or
16
entity with whom United States persons or entItles are restricted from doing
business under regulations of the Office of Foreign Asset Control ("OF AC") of
the Department of the Treasury (including those named on OF AC's Specially
Designated and Blocked Persons List, Specially Designated Terrorists or
Specially Designated Narcotics Traffickers Lists) or under any statute, executive
order (including the September 24, 2001 Executing Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism), or other governmental action and is not and will not engage
in any dealings or transactions or be otherwise associated with such persons or
entities.
*See attached Addendum to Purchase Agreement,
incorporated herein and made a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date and year first above written.
SELLER:
HOMESALES, INC
a Delaware corporation
By:
Its:
Date:
17
ATTEST:
DWIGHT E. BROCK, CLERK
"',. " .. De'P1:l~ Clerk
Atf4It. at ,to CII..... I
.~.'.... .."~. . 'i,":
.~ "',,'
-,1._ .... .. _ .. . .',
I . .;';~!.: ~ '
PURCHASER:
COLLIER COUNTY,
A POLITICAL S BDIVISION OF THE STATE
OF FLORIDA
By:
Its: Chairman
Date: 4-~ I ~J - ocr
Ap
18
& legal sufficiency
EXHIBIT "A"
Legal Description of Property
LOT 7, BLOCK 157, GOLDEN GATE, UNIT 5, ACCORDING TO THE PLAT THEREOF, AS
RECORDED IN PLAT BOOK 5, AT PAGES 117 THROUGH 123, INCLUSIVE, OF THE
PUBLIC RECORDS OF COLLIER COUNTY FLORIDA.
Tax Parcel No.
EXH-A
...-"'-<""
EXHIBIT "B"
Personal Property
Ifnone, state none: NONE
EXH-B
MEMORANDUM
Date:
Aprill5,2009
To:
Gary Bigelow,
Property Acquisition Specialist
From:
Ann Jennejohn, Deputy Clerk
Minutes & Records Department
Re:
Purchase & Sales Agreement for Property at
5501 SW 17th Avenue for the Neighborhood
Stabilization Program
Enclosed is the original sales contract referenced above (Agenda Item #1 OF)
approved by the Board of County Commissioners on Tuesday, March 24, 2009.
After processing please forward a fully executed copy to the Minutes & Records Office
for the Board's Official Record.
If you should have any questions, please contact me at 252-8406.
Thank you.
Enclosure