HomeMy WebLinkAboutCity of Tamarac Resolution R-2008-028Temp. Reso. #11232
March 3, 2008
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2008-62 g
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE AN
AGREEMENT FOR PURCHASE AND SALE OF REAL
PROPERTY BETWEEN CHEVRON USA, INC.
(SELLER) AND THE CITY OF TAMARAC (BUYER) IN
THE AMOUNT OF TWO MILLION SIX HUNDRED
THIRTY SIX THOUSAND EIGHT HUNDRED AND
00/100 DOLLARS ($2,636,800) FOR OPEN SPACE
AND RECREATIONAL PURPOSES; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the 1.37*/- acre parcel known as, Lot 15, Block B, Lyons
Commercial Subdivision as recorded in Plat Book 69, Page 42, of the Public
Records of Broward County, Florida (hereinafter "Chevron Station") has been
identified by the City as a potential site for reclamation to provide additional open
space and recreational opportunities within the City of Tamarac; and
WHEREAS, the City of Tamarac desires to acquire additional land and
open space for the purpose of expanding the City's recreational open space and
to comply with the Broward County Land Use Plan as well as achieve public
recreation land goals; and
WHEREAS, the City Commission expressed interest in negotiating for the
acquisition of the Chevron Station; and
Temp. Reso. #11232
March 3, 2008
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WHEREAS, the purchase of the Chevron Station by the City of Tamarac
will be for the public purpose of providing recreational open space; and
WHEREAS, funds are available through the Broward County Land
Acquisition Program and the City of Tamarac will pre -acquire the parcel and seek
reimbursement from Broward County following the acquisition as appropriate;
and
WHEREAS, the City Manager recommends execution of the Agreement
between the City of Tamarac (Buyer) and Chevron USA, Inc. (Seller) for the sale
of the Chevron Station (hereto attached as Exhibit A) and authorization of the
purchase in the amount of TWO MILLION SIX HUNDRED THIRTY SIX
THOUSAND EIGHT HUNDRED AND 00/100 DOLLARS ($2,636,800); and
WHEREAS, the City Commission of the City of Tamarac, Florida, deems it
to be in the best interest of the citizens and residents of the City of Tamarac to
execute an Agreement for Purchase and Sale of Real Property ("Contract")
between Chevron USA, Inc. (Seller) and the City of Tamarac (Buyer) in the
amount of TWO MILLION SIX HUNDRED THIRTY SIX THOUSAND EIGHT
HUNDRED AND 00/100 ($2,636,800) for the City to purchase 1.37 +/- acres to
secure the property for park purposes.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF TAMARAC, FLORIDA:
Temp. Reso. #11232
March 3, 2008
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SECTION 1: The foregoing "WHEREAS" clauses are hereby
ratified and confirmed as being true and correct and are hereby made a specific
part of this Resolution.
SECTION 2: The City Commission hereby approves the
Agreement for Purchase and Sale of Real Property ("Contract") between
Chevron USA, Inc. Dated (Seller) and the City of Tamarac (Buyer), a copy of said
agreement is attached hereto as Exhibit "A".
SECTION 3: The appropriate officials of the City of Tamarac,
Florida
are
hereby authorized to execute
on behalf of the City
of Tamarac,
Florida
the
Agreement for Purchase and
Sale of Real Property
("Contract")
between Chevron USA Dated (Seller) and the City of Tamarac (Buyer), a copy of
which Contract is attached hereto as Exhibit "A".
SECTION 4: The appropriate officials of the City of Tamarac,
Florida pursuant to the terms of the Contract are hereby authorized to issue a
draft in the amount of ONE HUNDRED TWENTY EIGHT THOUSAND DOLLARS
($128,000) made payable to the order of "Attorneys' Title Insurance Fund, Inc."
and to deliver same to: Attorneys' Title Insurance fund, Inc, Attn: Escrow
Operations, 1770 NW 64th Street, Suite 600, Ft. Lauderdale, FI 33309; said
funds representing the Deposit pursuant to the terms of paragraph 2 of the
Contract.
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March 3, 2008
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SECTION 5: The appropriate officials of the City of Tamarac,
Florida and/or the City Attorney are hereby authorized: (a) to obtain two (2) real
estate appraisals for the subject property, (b) to obtain a Phase 2 Environmental
Audit of the subject property, and (c) to obtain a boundary survey of the subject
property, during the Inspection Period stated in Section 3 of the Contract, all at
City expense.
SECTION 6: The appropriate officials of the City of Tamarac,
Florida are hereby authorized to obtain title insurance on the subject property in
the amount of the purchase price and as outlined in Section 2.1 of the
agreement.
SECTION 7: The appropriate officials of the City of Tamarac,
Florida are hereby authorized to fund and to close the transaction contemplated
in the Contract upon the occurrence of all conditions precedent thereto and the
appropriate officials of the City of Tamarac, Florida are specifically authorized to
execute any and all documents required to complete the closing, including but
not limited to, closing statements, standard closing affidavits, and assignments.
SECTION 8: All resolutions or parts of resolutions in conflict
herewith are hereby repealed to the extent of such conflict.
SECTION 9: If any clause, section, other part or application of this
Resolution is held by any court of competent jurisdiction to be unconstitutional or
Temp. Reso. #11232
March 3, 2008
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invalid, in part or application, it shall not affect the validity of the remaining
portions or applications of this Resolution.
SECTION 10: This Resolution shall become effective
immediately upon its passage and adoption.
PASSED, ADOPTED AND APPROVED this V-A� day o4ft/ '2008.
f_1
ATTEST:
MARION SWENS N, CMC
CITY CLERK
I HEREBY CERTIFY that
I have approved this
RESOLUTION as to form.
AMUEL S. GOREN
CITY ATTORNEY
1
BETH FLANSBAUM-TALABISCO, MAYOR
RECORD OF COMMISSION VOTE:
MAYO LANSBAUM-TALABISCO�
DIST 1. ORTNER
DIST 2: C,ATKINS-G D
DIST 3: SULTANOF
DIST 4: COMM. DRESSLER
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
��r
AGREEMENT ("Agreement") is made and entered into on this ��ay of
2008 by and between the City of Tamarac, a Florida municipal corporation
(hereinafter referred to as "PURCHASER") and Chevron U.S.A. Inc., a Pennsylvania corporation
(hereinafter referred to as "SELLER").
WITNESSETH
In consideration of the mutual agreements and upon and subject to the terms and conditions
herein contained, the parties hereto agree as follows:
1. DEFINITIONS.
The following terms when used in this Agreement for Purchase and Sale shall have the
following meanings:
1.1 Property. That certain real property located at 5650 Pine Island Road, Tamarac,
Broward County, Florida, and any appurtenances thereto (collectively the "Property) which Property is
more particularly described with the legal description in Exhibit "A," attached hereto and made a part
hereof.
1.2 Closing. The delivery of the Deed (as hereinafter defined) to PURCHASER
concurrently with the delivery of the purchase price and other cash consideration to SELLER.
1.3 Closing Date. The Closing Date shall occur on or before June 30, 2008,
1.4 Deed. A Special Warranty Deed, in the form attached hereto as Exhibit "B", which
shall convey the Property from SELLER to PURCHASER.
1.5 Earnest Money. The sum of One Hundred Twenty Eight Thousand and 00/100
Dollars ($128,000.00) has been delivered from PURCHASER to Title Company pursuant to Section
2.1 set forth herein.
1.6 Effective Date. The Effective Date of this Agreement shall be the date upon its
execution by all parties to this Agreement: SELLER, PURCHASER and Title Agent (as hereinafter
defined).
1.7 SELLER'S Address. SELLER'S mailing address is c/o Jeanne G. Suminski, Senior
Counsel & Assistant Secretary, Chevron U.S.A. Inc. & Texaco Inc., 1600 Smith Street, 27t' Floor,
Houston, TX 77002.
1.8 PURCHASER'S Address. PURCHASER'S mailing address is 7525 NW 88th
Avenue, Tamarac, Florida, attn: Diane Phillips, Assistant City Manager, with copy to Goren, Cherof,
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Doody & Ezrol, P.A., Attn: Donald J. Doody, Esq., at 3099 East Commercial Boulevard, Suite 200,
Florida 33308.
1.9 Other Definitions. The terms defined in any part of this Agreement shall have the
defined meaning wherever capitalized herein. Wherever appropriate in this Agreement, the singular
shall be deemed to refer to the plural and the plural to the singular, and pronouns of each gender shall
be deemed to comprehend either or both of the other genders. As used in this Agreement, the terms
"herein", "hereof' and the like refer to this Agreement in its entirety and not to any specific section or
subsection.
2. PURCHASE PRICE.
Subject to the provisions of this Agreement, SELLER hereby agrees to sell to PURCHASER,
and PURCHASER hereby agrees to purchase from SELLER, the Property for the total Purchase Price
of TWO MILLION SIX HUNDRED THIRTY-SIX THOUSAND EIGHT HUNDRED AND 00/100
($2,636,800) DOLLARS and upon and subject to the terms and conditions hereinafter set forth.
2.1 Deposit of Earnest Money, Concurrently with the execution of this Agreement,
PURCHASER shall deposit, and cause to be placed in an interest bearing escrow account maintained
by Attorneys' Title Insurance Fund, Inc., whose address is 1770 NW 60 Street, Suite 600, Ft.
Lauderdale, Florida 33309 ("Title Company") the Earnest Money. Roger M. Pomerance, P.A.
("Title Agent") is an agent for Title Company and is a law firm that represents SELLER. The
Earnest Money shall be applied towards the Purchase Price at the Closing. Title Company and
Title Agent undertake to perform only such duties as are expressly set forth in this Agreement and
no implied duties or obligations shall be read into this Agreement against Title Company and Title
Agent. In the event of a dispute between PURCHASER and SELLER, then PURCHASER and
SELLER consent to Title Agent's continuing to represent SELLER, notwithstanding the fact that it
also shall have the duties provided for in this Agreement. Title Company, by acceptance of any
funds tendered pursuant hereto (and at all times subject to the General Conditions of Escrow
attached hereto as Exhibit "C"), agrees to properly deposit such funds, hold the same in escrow
and, subject to clearance, disburse them in accordance with the terms and conditions of this
Agreement. Failure of funds to clear shall not excuse PURCHASER'S performance. If in doubt as
to Title Company's duties and liabilities under the provisions of this Agreement, Title Company
may, at Title Company's option, continue to hold the subject matter of the escrow until
PURCHASER and SELLER agree to its disbursement or until a judgment of a court of competent
jurisdiction shall determine the rights of PURCHASER and SELLER, or Title Company may
deposit the same with the clerk of the circuit court having jurisdiction of the dispute. Upon
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notifying all parties concerned of such action, all liability on the part of Title Company with respect
to the subject matter of the escrow shall fully terminate, except to the extent of accounting for any
items previously delivered out of escrow. In the event the "Title Company" imposes a fee to hold the
Earnest Money, such fee shall be the sole responsibility of Seller.
PURCHASER'S obligation to close the transaction in accordance with provisions of this
Agreement is contingent upon the SELLER'S ability to deliver fee simple title to the Property free and
clear of all liens, easements, covenants, rights -of -way, reservations, restrictions, tenancies, mineral
interests and any other encumbrances of whatsoever nature (herein collectively called the
"Encumbrances") except the Encumbrances appearing in the Title Commitment (as hereinafter
defined) and/or the Survey (as hereinafter defined) that either are not objected to, or, if objected to,
are not cured and that are subsequently waived pursuant to Section 5.1 hereof (the "Permitted
Encumbrances").
2.2 Balance of Purchase Price. PURCHASER shall pay the balance of the Purchase Price
(that is, the Purchase Price less the Earnest Money) to SELLER at Closing pursuant to the terms of this
Agreement by wire transfer of readily negotiable funds to an account identified in writing by SELLER.
At the Closing, the Earnest Money shall be applied towards the Purchase Price, that is, the Title
Company shall disburse the Earnest Money to SELLER as a part of the Purchase Price.
3. INSPECTIONS.
PURCHASER shall have until June 27, 2008 at 5:00 pin in Tamarac, Florida to perform
inspections of the Property as PURCHASER deems necessary (the "Inspection Period"). During the
Inspection Period, PURCHASER shall, at its sole cost and expense, determine that utility services
including, water, waste water, electric, telephone and all other utilities are available in the proper size
and capacity to serve the existing facilities and installed to the property lines. At all times during the
Inspection Period, PURCHASER and its agents shall be provided with reasonable access ,during
normal business hours to the Property for purposes of on -site inspection, upon reasonable prior Notice
to SELLER. The scope of the inspection contemplated herein shall be determined by PURCHASER
as deemed appropriate under the circumstances. .
In the event that any inspections and any review of documents conducted by the
PURCHASER relative to the Property during the Inspection Period prove unsatisfactory in any
fashion, or the PURCHASER is unable to secure the funding from the Board of County
Commissioners for Broward County as referenced in Section 7 herein, the PURCHASER, at its sole
discretion, shall be entitled to terminate this Agreement by giving written notice of such termination to
SELLER prior to the end of the Inspection Period, and. PURCHASER also agrees to indemnify and
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hold. SELLER harmless from any losses, claims, costs, and expenses, including reasonable attorney's
fees, which may result from or be connected with any acts or omissions of PURCHASER during
inspections that are done pursuant hereto. PURCHASER will provide such written notice of
termination by mail or facsimile to SELLER and SELLER'S counsel. In the event PURCHASER so
terminates this Agreement pursuant to this Section 3, PURCHASER shall receive an immediate refund
of the Earnest Money and any accrued interest thereon. If PURCHASER does not terminate this
Agreement pursuant to this Section 3 prior to the end of the Inspection Period, PURCHASER shall be
deemed to be satisfied with respect to the Property and all inspections, and PURCHASER shall
proceed to Closing as set forth herein, and any right of termination under this Section 3 shall be
deemed to be waived.
4. SELLER'S REPRESENTATIONS.
To induce PURCHASER to enter into this Agreement, SELLER makes the following
representations, all of which, to the best of its knowledge, in all material respects and except as
otherwise provided in this Agreement (i) are now true, and (ii) shall be true as of the date of the
Closing unless SELLER receives information to the contrary, and (iii) shall survive the Closing.
PURCHASER'S sole remedy in the event of any breach by SELLER of any of the following
representations prior to Closing shall be the right to terminate this Agreement and receive a refund of
the Earnest Money and accrued interest thereon as liquidated damages. PURCHASER shall be
provided immediate notice as to the change to the following representations.
4.1 At all times from the Effective Date until the Closing, SELLER shall keep the
Property (whether before or after the date of Closing) free and clear of any mechanic's or
materialmen's liens for work or materials furnished to or contracted for, by or on behalf of SELLER
prior to the Closing, and SELLER shall indemnify, defend and hold PURCHASER harmless from and
against all expense and liability in connection therewith (including, without limitation, court costs and
reasonable attorney's fees).
4.2 SELLER has no actual knowledge nor has SELLER received any notice of any
litigation, claim, action or proceeding, actual or threatened, against SELLER or the Property by any
organization, person, individual or governmental agency which would affect (as to any threatened
litigation, claim, action or proceeding, in a materially adverse fashion) the use or occupancy of the
Property or any part thereof. For purposes hereof, PURCHASER shall not be deemed an
"organization, person, individual or governmental agency."
4.3 SELLER has full power and authority to enter into this Agreement and to assume and
perform its obligations hereunder in this Agreement. This Agreement has been duly executed and
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delivered by SELLER and assuming due authorization, execution and delivery by PURCHASER,
this Agreement constitutes the valid and binding obligations of SELLER.
4.4 SELLER represents that it will not, between the date of this Agreement and the
Closing Date, without PURCHASER'S prior written consent, which consent shall not be unreasonably
withheld or delayed, except in the ordinary course of business and except for any liens for taxes not yet
due and payable, create by its consent any Encumbrances on the Property.
4.5 SELLER shall not list or offer the Property for sale or solicit or negotiate offers to
purchase the Property while this Agreement is in effect.
5. EVIDENCE OF TITLE.
5.1 Title to the Property. SELLER shall convey to PURCHASER at Closing, by delivery
of the Deed, title to the subject Property, subject to the Permitted Encumbrances. SELLER shall,
within fifteen (15) days after the Effective Date, secure a title insurance commitment issued by Title
Agent, on behalf of Title Company for the Property proposing to insure PURCHASER'S title to the
Property (the "Title Commitment") subject only to those exceptions set forth in the Title Commitment,
together with copies of all recorded documents referred to in the Title Commitment.
If PURCHASER objects to any exception to title as shown in the Title Commitment or in the
survey referenced in Section 5.2 below, PURCHASER shall, on or before the expiration of thirty (30)
days after the Effective Date, notify SELLER in writing specifying the specific exception(s) to which
it objects. SELLER may, but is not obligated to, cure any such objections. Any objection(s) of which
PURCHASER has so notified. SELLER, and which SELLER chooses to cure, shall be cured by
SELLER so as to enable the removal of said objection(s) from the Title Commitment within ten (10)
days after the expiration of the foregoing thirty (30) —day period, and within the same said ten (10) —
day period, if SELLER so chooses to cure any of PURCHASER'S objections, SELLER shall send to
PURCHASER a notice in writing stating that the objection has been cured or will be cured within the
ten (10) day period and in such case enclosing evidence of such cure (a "cure notice"). If SELLER
does not send a cure notice and/or does not cure any such objection within said ten (10) — day period,
SELLER shall be deemed to have elected not to cure any of PURCHASER'S objections. If SELLER
shall be unable or unwilling to cure all objections within the time period set forth in the preceding
sentence or if SELLER is deemed to have elected not to cure any of PURCHASER'S objections, then
PURCHASER may (a) terminate this Agreement by giving written notice to SELLER on or before the
expiration of the Inspection Period, in which event all instruments and monies held by the Title
Company shall be immediately returned to PURCHASER; or (b) subject to the provisions set forth
below, proceed to close the transaction contemplated herein despite the uncured objection(s), in which
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event, any such uncured objection(s) shall be deemed to be Permitted Encumbrances. In addition,
if PURCHASER gives SELLER proper notice of its objections and if SELLER is unable, or
chooses not, to cure any such objections or is deemed to have elected not to cure any of
PURCHASER'S objections and if PURCHASER fails to give notice of termination pursuant to this
Section 5.1 on or before the expiration of the Inspection Period (based on SELLER'S inability or
unwillingness to cure any or all of PURCHASER'S objections or based on SELLER'S being
deemed to have elected not to cure any of PURCHASER'S objections), PURCHASER shall be
deemed to have waived any such uncured objection(s).
5.2 Survey and Legal_ Description. Within fifteen (15) days after the Effective Date,
PURCHASER at its own expense shall order: (i) a survey prepared by a registered land surveyor or
engineer licensed in the State of Florida showing the boundaries of the Property, and the location of
any easements thereon and certifying the number of acres (to the nearest one thousandth acre) of land.
contained in the Property, all buildings, improvements and encroachments; and (ii) a correct legal
description of the Property which, upon approval thereof by PURCHASER and SELLER (not to be
unreasonably withheld), shall be the legal description used in the deed of conveyance. The survey and
legal description shall be prepared and certified by a surveyor licensed and registered in the State of
Florida and shall comply with the requirements of the survey map established in connection with the
issuance of an owner's title insurance policy on the Property. The survey shall be certified to
PURCHASER and the title insurance company issuing the title insurance.
5.3 Owner Policy of Title Insurance. Following Closing and satisfaction of the
requirements set forth on Schedule B-I of the Title Commitment, at PURCHASER'S sole cost and
expense, Title Agent shall cause to be issued on behalf of Title Company an ALTA Form B
marketability policy in the name of PURCHASER for the full amount of the Purchase Price
insuring that, after the completion of the Closing, PURCHASER is the owner of good and
marketable fee simple title to the Property, subject to the standard printed exceptions, the lien of
current real property taxes and assessments not delinquent, the Permitted Encumbrances, matters
set forth or excepted in the Deed, and such other exceptions as may be approved by PURCHASER
(the "Title Policy"). It is understood and agreed that the Title Commitment and such Title Policy
shall be issued by Title Agent (and no other) and that under no circumstances will SELLER pay
any title premiums, examination fees, and/or abstracts, or any other expenses whatsoever in
connection with the issuance of the Title Commitment or the Title Policy. However, SELLER will
be responsible for any attorney's fees charged by Roger M. Pomerance, P.A. above and beyond the
promulgated rate for the title insurance premium charged in the State of Florida.
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6. PURCHASER'S REPRESENTATIONS.
PURCHASER hereby represents and warrants to the best of its knowledge that all of the
following are true and correct:
(a) PURCHASER has full power and authority to enter into this Agreement and to
assume and perform all of its obligations hereunder.
(b) The execution and delivery of this Agreement and the performance by PURCHASER
of the obligations hereunder have been duly authorized by the pertinent governmental authorities in
compliance with Chapter 166 of the Florida Statutes, the City of Tamarac Charter and Code of
Ordinances, as may be required, and no further action or approval is required in order to constitute this
Agreement as a binding obligation of the PURCHASER.
(c) The execution and delivery of this Agreement and the consummation of the
transaction contemplated hereunder on the part of the PURCHASER do not and will not violate the
corporate or organizational documents of PURCHASER and will not conflict with or result in the
breach of any condition or provision, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the terms of any contract, mortgage, lien,
lease, agreement, indenture, instrument or judgment to which the PURCHASER is a party.
(d) No action by any federal, state, municipal or other governmental department,
commission, board, bureau or instrumentality is necessary to make this Agreement a valid instrument
binding upon PURCHASER in accordance with its terms and conditions.
All of the representations, warranties and covenants of PURCHASER contained in this
Agreement or in any other document, delivered to SELLER in connection with the transaction
contemplated herein shall be true and correct in all material respects and not in default at the time of
Closing, just as though they were made at such time.
7. CONDITIONS PRECEDENT TO CLOSING.
Each of the following events or occurrences ("Conditions Precedents") shall be a condition
precedent to PURCHASER'S obligation to close this transaction:
(a) That PURCHASER has not timely notified SELLER that is not satisfied with the
Inspection Period investigation conducted on the Property during the Inspection Period.
(b) SELLER has performed all covenant, agreements and obligations, and complied with
all conditions required by this Agreement to convey fee simple title to the Property to PURCHASER
in accordance with this Agreement, subject to the Permitted Encumbrances, prior to Closing.
(c) Approval of this Agreement by the City Commission of the City of Tamarac on or
before March 12, 2008.
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(d) PURCHASER receives the Title Policy or reasonable assurances from the Title
Company that the Title Company will issue the Title Policy as described in Section 5.3 hereof.
(e) Board of County Commissioners for Broward County, Florida approval and
authorization to grant to the City of Tamarac an amount not less than two (2) million dollars for land
preservation.
8. DAMAGE OR DESTRUCTION OR TAKING PRIOR TO CLOSING.
Risk of loss or damage from fire, other casualty, or both, is assumed by SELLER until the
Closing occurs. In the event the Property, or any part thereof, is destroyed or damaged, or becomes
subject to a taking by virtue of eminent domain to any extent whatsoever prior to the Closing,
either SELLER or PURCHASER may elect to terminate this Agreement by giving written notice
thereof to the other party on or before the Closing Date, whereupon Title Company shall return the
Earnest Money and any accrued interest thereon to PURCHASER, and neither party hereto shall
have any further rights or obligations hereunder. If neither party elects to terminate this Agreement
on or before the Closing Date, and if the Closing proceeds and occurs in accordance with the terms
of this Agreement, there shall be no adjustment in the Purchase Price, and neither party shall have
any claims of any kind against the other party by reason of any such damage, destruction or taking
prior to the Closing; provided, however, in the event of a taking prior to Closing and provided that
the Closing occurs and neither party terminates this Agreement in accordance with the foregoing,
SELLER shall assign to PURCHASER all of SELLER'S right, title and interest in and to any
condemnation awards attributable to the loss of the land only, and SELLER shall retain any
condemnation awards attributable to the loss of any other items or matters other than the loss of the
land itself including, without limitation, condemnation awards attributable to the loss of any
Improvements.
9. CLOSING DOCUMENTS.
At Closing, SELLER shall deliver to PURCHASER the Deed, a Bill of Sale, if applicable, No
Lien/Gap Affidavit, Non -Foreign Certification in accordance with Section 1445 of the Internal
Revenue Code, 1099 Form and any other documents as listed as title requirements in Schedule B-I of
the Title Commitment to assure the conveyance of fee simple title of the Property to PURCHASER,
subject only to the Permitted Encumbrances. SELLER and PURCHASER each agree to provide
reasonable affidavits and documentation to enable Title Company to delete all Schedule B-I
requirements, the "gap" exception, and the construction lien and parties in possession exceptions
from the Title Commitment at Closing. SELLER and PURCHASER each shall be responsible for
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satisfying those Schedule B-I requirements applicable to each of them provided, however, neither
party shall be required to spend more than $1,000 in the aggregate to satisfy such Schedule B-I
requirements applicable to such party.
At Closing, PURCHASER shall deliver to SELLER a certified copy of the resolutions,
minutes or agenda actions of the pertinent meeting of the City Commission showing that
PURCHASER has been authorized to enter into and execute this Agreement and consummate the
transaction herein contemplated.
10. CLOSING COSTS, TAXES AND PRORATIONS.
10.1 Ad Valorem Taxes. PURCHASER and SELLER shall comply with Section 196.295,
Florida Statutes, with respect to the payment of prorated ad valorem taxes for the year of Closing into
escrow with the Broward County Revenue Collector.
10.2 SELLER'S Closing Costs. At the Closing, SELLER shall pay for any Documentary
Stamps on the Deed as provided under Chapter 201, Florida Statutes.
10.3 PURCHASER'S Closing Costs. PURCHASER shall pay for the following items
prior to or at the time of Closing:
(a) Costs associated with appraisals, survey, environmental reports (phase I and
phase II);
(b) Recording fees of the Deed, Interlocal Agreement with Broward County, and any
other instrument as required to be recorded in the Public Records;
(c) The Title insurance premium, issuance of the Title Commitment and the Title
Insurance Policy, but in any event, PURCHASER shall not be responsible for any
attorney's fees charged by Roger M. Pomerance, P.A. above and beyond the
promulgated rate of the title insurance premium; and
(d) The balance of the Purchase Price after subtracting the Earnest Money.
11. CLOSING DATE AND PLACE.
The Closing shall take place on the Closing Date at the offices of PURCHASER's counsel
located at 3099 E Commercial Boulevard, Suite 200, Fort Lauderdale, Florida 33308, or at the City
Hall as may be agreed upon by the parties.
12. DEFAULT.
Except as otherwise provided in Section 4 above, in the event of a default by SELLER under
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this Agreement, PURCHASER shall have the right, as its sole and exclusive remedy hereunder, to
either (a) terminate this Agreement and receive a refund of the Earnest Money and any accrued interest
thereon as liquidated damages, or (b) seek equitable relief to enforce the terms and conditions of this
Agreement either through a decree for specific performance or injunctive relief.
If PURCHASER shall fail or refuse to consummate the transaction in accordance with the
terms and provisions of this Agreement, the Earnest Money and any accrued interest thereon shall be
immediately forfeited to SELLER as agreed upon liquidated damages, and PURCHASER shall have
no other responsibility or liability of any kind to SELLER by virtue of such default. SELLER'S sole
and entire remedy shall be restricted to retention of the deposit plus all accrued interest thereon.
13. BROKER:
The parties each represent to the other that they have not dealt with any real estate broker,
real estate salesman or finder other than CB Richard Ellis ("CBRE") and Cenmark Realty Services,
Inc. ("Cenmark," CBRE and Cenmark being collectively referred to herein as "Agents") in
conjunction with this transaction who will be entitled to a fee or brokerage commission in
accordance with Florida law. If the Closing of the sale of the Property by SELLER to
PURCHASER pursuant to this Agreement is consummated and the Purchase Price funded, and not
otherwise, SELLER shall pay to Agents a fee for Agents' services as follows: $76,800.00 to
Cenmark and, as agreed between SELLER and CBRE, a percentage of the Purchase Price to
CBRE.
SELLER shall indemnify and hold PURCHASER harmless from any and all liability,
claims, actions, damages or suit brought by or on behalf of CBRE or Cenmark relative to a
commission or fee sought as a result of the contemplated transaction.
14. ENFORCEABILITY.
If any provision in this Agreement shall be held to be excessively broad, it shall be construed,
by limiting and reducing it, to be enforceable to the extent compatible with applicable law. If any
provision in this Agreement shall, notwithstanding the preceding sentence, be held illegal or
unenforceable, such illegality or unenforceability shall not affect any other provision of this
Agreement.
15. NOTICE.
All written notices shall be deemed effective if sent to the following places:
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PURCHASER: City of Tamarac
7525 NW 88`" Avenue, Room 202
Tamarac, Florida 33321
Attn: Diane Phillips, Assistant City Manager
With Copy to: Donald J. Doody, Esquire
GOREN, CHEROF, DOODY & EZROL, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Tel: (954) 771-4500
Fax: (954) 771-4923
Email: ddood cityatty.com
SELLER: Chevron U.S.A. Inc.
6001 Bollinger Canyon Road
Building T/Room 1088
San Ramon, CA 94583
Attention: Property Manager
With a Copy to: Jeanne G. Suminski
Senior Counsel & Assistant Secretary
Chevron U.S.A. Inc. & Texaco Inc.
1600 Smith Street, 27'h Floor
Houston, 'Texas 77002
TITLE AGENT: Roger M. Pomerance, P.A.
1900 N W Corporate Blvd., Suite 201 E
Boca Raton, Florida 33431
16. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Florida. Venue shall be in the
Federal or State Courts in Broward County, Florida.
17. ENTIRE AGREEMENT.
All prior understandings and agreements between SELLER and PURCHASER are merged in
this Agreement. This Agreement completely expresses their full agreement.
18. AMENDMENT.
No modification or amendment of this Agreement shall be of any force or effect unless in
writing and executed by both SELLER and PURCHASER.
Page 1 1
19. SUCCESSORS.
This Agreement shall apply to and bind the executors, administrators, successors and assigns
of SELLER and PURCHASER.
20. COUNTERPARTS:
This Agreement may be executed in two or more counterparts, each of which shall be taken to
be an original and all collectively deemed one instrument. The parties hereto agree that a facsimile
copy hereof and any signatures hereon shall be considered for all purposes as originals.
21. LITIGATION COSTS:
In connection with any litigation arising out of this Agreement, the prevailing party shall be
entitled to recover from the non -prevailing party all costs and expenses incurred, including its
reasonable attorney's fees at all trial and appellate levels and post judgment proceedings.
22. USE RESTRICTIONS:
The Property shall be subject to the Use Restrictions (as hereinafter defined). SELLER
owns that certain tract of real property located in Broward County, Florida, being more particularly
described by metes and bounds on Exhibit "A-2" attached hereto (the "Chevron Property"). The
Chevron Property is described and mentioned herein for purposes of identifying the property
owned by SELLER that will be benefited by the following Use Restrictions and for no other
purpose, and PURCHASER acknowledges and agrees that it is receiving no real property or other
interest in and to the Chevron Property. PURCHASER, on behalf of itself, its successors and
assigns and any subsequent owners of the Property or any part thereof, hereby agrees that the
Property shall not be developed or used for (nor shall any part thereof be developed or used for) a
retail motor fuel service station, car wash, and/or convenience store (as hereinafter defined) (the
"Use Restrictions"). The term "convenience store" shall mean any store containing less than five
thousand (7,000) square feet of merchandisable floor area primarily devoted to the sale of a variety
of food items including, without limitation, produce, sandwiches, coffee, soft drinks, milk, water,
other beverages, delicatessen -style food items, fresh, uncooked, cooked, canned, or frozen beef,
poultry, fish, or other meat, bakery items, notions, paper and cleaning products, and other items
commonly found in a grocery store including, without limitation, cigarettes, beer, wine, magazines,
books, newspapers, tapes, lottery tickets, and pharmaceutical items sold without prescription or
over the counter, all for off -premises use or consumption. The Use Restrictions shall be (i)
covenants encumbering and binding upon the Property and benefiting the Chevron Property; and.
Page 12
(ii) binding upon and enforceable against the parties hereto and their respective legal
representatives, successors, and assigns and all subsequent owners of the Property, or any part
thereof, whether by purchase, sale, descent, devise, gift, trade, or otherwise, and each and all
individuals and entities. The Use Restrictions shall remain in force and effect until the earlier of
(1) the effective date of an Interlocal Agreement (or other similar agreement) between
PURCHASER and Broward County restricting or prohibiting the use of the Property for any uses
other than land preservation or as a park (the "Interlocal Agreement"), and (2) fifteen (15) years
after the Deed is filed for record in the Official Public Records of Real Property of Broward
County, Florida. It is understood and agreed that, upon the effective date of the Interlocal
Agreement, the Interlocal Agreement shall supersede the Use Restrictions, and the Use Restrictions
shall be of no further force and effect thereafter.
23. ENVIRONMENTAL MATTERS:
(a) As used herein, "Covered Contamination" means environmental contamination
that must be remediated pursuant to applicable federal, state or local laws and regulations
(including, without limitation, any and all Environmental Laws, as hereinafter defined) in effect
and as enforced on the Closing Date and which either (i) is located on the Property on the Closing
Date (whether such Covered Contamination is discovered before, on or after the Closing Date), or
(ii) is now or hereafter located off the Property but which, in either case, originated from
SELLER'S operations on the Property, prior to the Closing Date. For purposes hereof,
"Environmental Law" means any federal, state or local statute, law, ordinance, code, and any
judicial and administrative rules, regulations, and orders relating to emissions, discharges or
releases of Hazardous Substances (as hereinafter defined) or otherwise relating to the treatment,
storage, disposal, transport or handling of Hazardous Substances. For purposes hereof, "Hazardous
Substances" means petroleum hydrocarbons and all substances defined as hazardous substances
under any Environmental Law in effect on the Closing Date.
(b) SELLER shall undertake or has undertaken or caused to be performed, at SELLER'S
expense, one or more environmental assessments and reviews of the Property to determine the
presence of Covered Contamination. Other environmental assessments, reviews and studies may
have been performed concerning the Property and may be available from governmental agencies or
are in the public domain. SELLER shall give PURCHASER a copy of the report or reports of the
assessments and reviews of the Property undertaken by SELLER or its consultants ("Environmental
Reports") within 10 days after entering into this Agreement or, if an environmental assessment and
Page 13
review has not yet been performed, within 10 days after Environmental Reports have been received
by SELLER. PURCHASER may, at PURCHASER'S expense, conduct .PURCHASER'S own
environmental review of the Property, and SELLER shall grant to PURCHASER a license to enter
the Property for such purpose. IF "PURCHASER" CONDUCTS "PURCHASER'S" OWN
ENVIRONMENTAL REVIEW OF THE "PROPERTY," PRIOR TO ENTERING THE
"PROPERTY" TO CONDUCT ANY SUCH TESTS, "PURCHASER" SHALL GIVE "SELLER"
WRITTEN NOTICE OF ITS INTENTION TO CONDUCT ITS OWN ENVIRONMENTAL
REVIEW OF THE "PROPERTY," PROVIDE "SELLER" WITH THE NAME AND
CREDENTIALS OF ANY SUCH ENVIRONMENTAL ENGINEER OR CONSULTANT,
OBTAIN "SELLER'S" APPROVAL OF SUCH ENGINEER OR CONSULTANT (WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD), AND COORDINATE ANY
SUCH ENTRY ONTO THE "PROPERTY" FOR SUCH PURPOSES WITH "SELLER" SO THAT
"SELLER" MAY HAVE A REPRESENTATIVE PRESENT AT ANY SUCH TESTING. THE
DATE AND THE TIME OF ANY SUCH TESTING. PURCHASER shall promptly deliver to
SELLER all data and information, including interpretative reports and conclusions, from any such
environmental review undertaken by PURCHASER ("PURCHASER'S Reports"). If
PURCHASER'S Reports indicate that Covered Contamination which is not identified in the
Environmental. Reports is present, then prior to the Closing Date, SELLER shall have the right and
option, at its discretion, to extend the Closing Date for 30 days for the purpose of reviewing
PURCHASER'S Reports and conducting such further environmental investigations of the Property as
it deems necessary or appropriate. In the event Covered Contamination is present, SELLER, in its
sole discretion, shall elect either (i) to correct or make arrangements for the correction of such
Covered Contamination as required by applicable statute, regulation or ordinance, or (ii) to terminate
this Agreement by written notice to PURCHASER, in which event PURCHASER'S Initial Deposit
together with any interest earned thereon shall be returned to PURCHASER. If PURCHASER closes
the transaction contemplated by this Agreement, PURCHASER represents to SELLER that
PURCHASER has reviewed and is familiar with the contents of the Environmental Reports, and/or
has had PURCHASER'S environmental consultant review and explain the contents of the
Environmental Reports, and agrees that the Environmental Reports fairly represent the known
condition of the Property on the Closing Date.
(c) SELLER, in accordance with the procedure set forth in Section 23(e) hereof, shall
assume responsibility for and shall comply with any government directive to the extent such directive
pertains to Covered Contamination. SELLER shall indemnify, defend and hold harmless
Page 14
PURCHASER from and against all claims, expenses (including reasonable attorneys' fees incurred
prior to acceptance by SELLER of a tender pursuant of Section 23(e)), loss or liability arising from
(i) any claims by third parties (other than subsequent owners or occupiers of the Property) to the
extent based on Covered Contamination, or (ii) any cleanup costs and related expenses actually and
reasonably incurred as a result of any cleanup of Covered Contamination, which may be directed
subsequent to the Closing Date by federal, state or local governmental authorities. The indemnity set
forth in this Section 23(c) shall also be deemed to run to any bank or other financial institution (and to
any purchaser at a foreclosure sale of the Property instituted by such financial institution) to which
PURCHASER may grant a purchase money security interest in the Property to secure a loan used by
PURCHASER to pay all or part of the Purchase Price. PURCHASER or any bank or other financial
institution holding a security interest in the Property, who may claim a right to be indemnified by
SELLER under this Agreement (or any purchaser at a foreclosure sale of the Property instituted by
such financial institution), shall not be entitled to such indemnification as it relates to third party
claims and suits unless, after receiving notice of any such third party claim or suit and within such
period of time as shall allow SELLER the benefit of any defense to the third party claim/suit or allow
SELLER the opportunity to respond in a timely fashion, such person shall provide SELLER with
written notice of the third party claim or suit and a demand that SELLER honor its obligation under
this Section 23(c).
(d) Except as provided in Section 23(c) or as expressly provided otherwise in this
Agreement, SELLER shall not be liable to PURCHASER for (i) any such third party claims
described in SELLER'S indemnity under Section 23(c) which are attributable to or arising from
construction on the Property following the Closing Date which involves subsurface excavation, soil
movement, and/or special handling, treatment or disposal of groundwater, or (ii) special, incidental or
consequential damages including, without limitation, construction delays, loss of business,
diminution in the value of the Property, or loss of goodwill by PURCHASER.
(e) If either party receives from a governmental entity a government directive, order or a
request to perform an investigation or remediation of the Property or a notice that a government
directive or order will be issued (the "Governmental Notice"), the following shall apply:
(i) The party receiving a Governmental Notice shall immediately, but in no
event later than the next business day such party is open for business after receipt of such
Governmental Notice, give notice, and a copy of, such Governmental Notice to the other
party.
Page 15
(ii) SELLER shall notify PURCHASER as to whether or not SELLER shall
assume responsibility for the government directive or order, not later than the earlier of (i)
15 days after SELLER'S receipt of the Governmental Notice, or (ii) the date that is 10 days
prior to the date stated in the Governmental Notice upon which PURCHASER must
initially respond. If SELLER fails to notify PURCHASER within the time period specified
above, SELLER shall be deemed to have elected not to assume responsibility for the
government directive, order or notice that a government entity will issue.
(iii) PURCHASER shall utilize all reasonable efforts to resist any government
clean up directive or order or third -party claim. SELLER shall have the right to participate
in any such proceedings, and PURCHASER shall cooperate fully with SELLER in order to
minimize the amount of any award to such third party or the scope of any such cleanup
directive or order. SELLER shall have the right to challenge any government directive or
order hereunder and not assume responsibility therefor if its challenge is based on a good
faith belief that the contamination which is the subject of the government directive or order
does not meet the definition of Covered Contamination for which SELLER would be liable
under this Agreement.
(iv) Except for any notice that SELLER may be required to give pursuant to
Section 23(e)(i) above, nothing in this Section 23(e) shall be deemed to (i) require
SELLER to undertake any action with respect to a government directive or order, or (ii)
expand SELLER'S liability under this Agreement.
(f) Except as expressly set forth in this Section 23, PURCHASER accepts the Property
"AS IS" and "WITH ALL FAULTS". Except with regard to Covered Contamination for which
SELLER has agreed to indemnify PURCHASER pursuant to Section 23(c) above, PURCHASER
hereby releases SELLER from, and shall indemnify, defend and hold harmless SELLER and its
affiliates from and against all claims, expenses (including reasonable attorneys' fees), loss and
liability arising from any environmental contamination present on the Property or originating from
operations on the Property or otherwise on account of the condition of the Property.
(g) Notwithstanding any provision herein to the contrary, should a material spill, leak
or other release of hydrocarbons or other contamination of whatever description or character occur
following the Closing Date at the Property while SELLER is engaged in corrective work relating to
Covered Contamination and commingle with such Covered Contamination that Seller is engaged in
Page 16
correcting, and such material spill, leak or release is unrelated to SELLER'S corrective work and is
not due to any negligence or other wrongful conduct by SELLER in conducting such corrective work
or in conducting the Removal Work (as hereinafter defined), then (i) SELLER shall have no further
responsibility to PURCHASER with regard to the correction of Covered Contamination at the
Property, (ii) any indemnity obligation of SELLER with regard to Covered Contamination which
may be present at the Property shall end, and (iii) PURCHASER thereafter shall release, indemnify
and hold harmless SELLER and its Affiliates from and against all claims, expenses (including
reasonable attorneys' fees), loss and liability arising from any contamination at the Property including
the costs of existing demands or orders or actions required by applicable government agencies. A
spill, leak or release shall be deemed material for purposes of this Section 23(g) if it makes any
corrective action relating to Covered Contamination significantly more costly or difficult or
significantly increases the time required to complete any corrective work which SELLER would
otherwise have been required to perform hereunder. Any cleanup work required with regard to any
such subsequent spill, leak, discharge or other release, whether or not considered material hereunder,
shall be the responsibility solely of PURCHASER. PURCHASER shall notify SELLER promptly of
any known or suspected spill, leak, discharge or other contamination, whether or not considered
material hereunder, occurring at the Property after the Closing Date. PURCHASER shall notify
SELLER promptly of any known or suspected spill, leak, discharge or other contamination, whether
or not considered material hereunder, occurring at the Property after the Closing Date.
(h) SELLER shall be deemed to have satisfied its obligations hereunder to correct any
Covered Contamination at such time as a closure letter, "no further action" letter, or similar evidence
of approval of the Florida Department of Environmental Protection (the "FDEP") is issued indicating
that corrective action has been completed to the satisfaction of the FDEP (a "Closure Letter"). Any
and all of SELLER'S indemnities set forth in Section 23 shall terminate seven (7) years after the
Closing Date.
(i) PURCHASER shall cooperate with SELLER'S reasonable corrective work, shall
grant SELLER reasonable access, without charge, to the Property for any such reasonable corrective
work that occurs subsequent to the Closing Date including, but not limited to, reasonable access to
SELLER'S Environmental Equipment (as hereinafter defined) which may exist at the Property on the
Closing Date, and shall cease or minimize any operations unreasonably interfering with such
reasonable corrective work until such reasonable corrective work is completed. SELLER shall
conduct all such reasonable corrective work in a manner which minimizes interference with normal
operations and activity at the Property. In addition, if PURCHASER sells, transfers or conveys the
Page 17
Property to any person or entity (a "Subsequent Owner"), PURCHASER shall disclose the right of
reasonable access set out in this Section 23 to the purchaser or transferee, and obtain the same right of
reasonable access to the Property from the Subsequent Owner. If PURCHASER is unable to obtain
the same right of reasonable access to the Property from the Subsequent Owner, PURCHASER shall
not sell, transfer or convey the Property to such Subsequent Owner. If PURCHASER sells the
Property to a Subsequent Owner without obtaining the same right of reasonable access to the
Property for SELLER as set forth in this Section 23(i), then (i) SELLER shall have no further
responsibility to PURCHASER with regard to the correction of Covered Contamination at the
Property, (ii) any indemnity obligation of SELLER with regard to Covered Contamination which
may be present at the Property shall end, and (iii) PURCHASER thereafter shall release, indemnify
and hold harmless SELLER and its Affiliates from and against all claims, expenses (including
reasonable attorneys' fees), loss and liability arising from any contamination at the Property including
the costs of existing demands or orders or actions required by applicable government agencies.
0) PURCHASER understands and agrees that PURCHASER shall be solely
responsible, at PURCHASER'S expense, for performing any due diligence reviews/surveys of the
Property that may be necessary, desirable or prudent prior to commencing any construction involving
subsurface excavation or soil disturbance. PURCHASER understands that such reviews/surveys may
determine the presence, nature and character of any environmental contamination or petroleum
impacted soils and groundwater. If PURCHASER performs any construction work on the Property,
PURCHASER shall be responsible for incorporating controls which minimize risks associated with
occupancy of building(s) on the Property, including but not limited to the installation of positive
pressure ventilation or negative pressure ventilation, as appropriate, and the installation of vapor
barriers under foundation structures. PURCHASER shall also implement such procedures and/or
special industrial hygiene precautions as may be encountered during construction. PURCHASER
shall hold SELLER harmless and indemnify SELLER from and against any and all claims which may
arise as a result of PURCHASER'S failure to take such measures and precautions as are required by
this Section 230).
(k) The Property transferred to PURCHASER hereunder does not include any ground
water monitoring wells or other environmental equipment now located on the Property or hereafter
installed on the Property by SELLER (collectively "SELLER'S Environmental Equipment").
SELLER shall at all times retain title to SELLER'S Environmental Equipment and shall have the
right at anytime subsequent to the Closing Date to add new monitoring wells at SELLER'S expense
at the Property at mutually agreeable locations, which new monitoring wells shall automatically be
Page 18
deemed to be a part of SELLER'S Environmental Equipment, and to remove SELLER'S
Environmental Equipment and/or to abandon SELLER'S Environmental Equipment in such manner
as may be permitted by applicable laws and regulations. PURCHASER understands that if
PURCHASER undertakes any construction on the Property, SELLER'S Environmental Equipment
may be disturbed. Accordingly, PURCHASER agrees that prior to any excavation that would
potentially disturb SELLER'S Environmental Equipment, PURCHASER shall notify SELLER in
advance and permit SELLER the full, timely and reasonable opportunity to change the location of
SELLER'S Environmental Equipment. SELLER shall, at PURCHASER'S sole expense, in a timely
fashion, close any affected monitoring wells in accordance with the requirements of applicable laws
and regulations. New monitoring wells may be installed by SELLER, at PURCHASER'S sole
expense, at locations on the Property mutually agreeable to the parties. if any of SELLLER'S
Environmental. Equipment becomes damaged creating a potentially unsafe or nuisance condition,
PURCHASER shall immediately notify SELLER of the existence of such condition and
PURCHASER shall compensate SELLER for the cost of proper abandonment, relocation and/or
repair of the damaged SELLER'S Environmental Equipment.
(1) PURCHASER agrees that SELLER, at its sole discretion, can elect from time to
time to participate in either a state administered restoration program or a state reimbursement
program or both, if and to the extent such program(s) exist in the state and the Property or the work to
be performed hereunder by SELLER qualifies under such program(s), and PURCHASER shall have
no recourse against SELLER with regard to any such election. PURCHASER agrees that SELLER'S
participation in or compliance with a state -administered restoration program or state reimbursement
program constitutes performance of SELLER'S obligations hereunder with respect to corrective
action of Covered Contamination. PURCHASER shall, as requested by SELLER and at no expense
to PURCHASER, reasonably cooperate with SELLER in satisfying requirements of the applicable
governmental agency with respect to participation in or compliance with such state administered
restoration program or state reimbursement program. SELLER shall be entitled to retain all
reimbursements received for work performed hereunder.
(m) Any failure of PURCHASER to operate the Property in conformity with the
obligations and requirements of federal, state or local laws and regulations, which if violated would
adversely affect, impact, or otherwise prejudice the SELLER'S undertakings, duties and
obligations or its rights and entitlements hereunder, shall, at SELLER'S sole election and without
in any way limiting other recourses and remedies to which SELLER is entitled under applicable
laws and regulations or otherwise, operate to release and relieve SELLER from all of its
Page 19
undertakings, duties and obligations set forth in this Section 23, and in such event, (i) SELLER
shall have no further responsibility to PURCHASER, any subsequent owner or occupier of the
Property, or any lender taking a purchase money security interest in the Property with regard to
Covered Contamination, (ii) any indemnity obligation of SELLER with regard to Covered
Contamination shall end, and (iii) PURCHASER (effective as of SELLER'S election) shall release,
indemnify and hold SELLER and its Affiliates harmless from and against all claims, necessary
expenses, loss, and liability arising from Covered Contamination. SELLER shall not be liable or
responsible for any penalties imposed by any applicable governmental authority due to
PURCHASER'S failure to conform with any federal, state and local laws and regulations.
PURCHASER agrees to indemnify SELLER for any expenses (including reasonable attorneys'
fees) incurred arising from such penalty.
(n) PURCHASER hereby agrees that, if the FDEP or any other goverramental agency
requires that the Property be restricted so as to prohibit use of the Property for a potable water well
for purposes of complying with the FDEP'S or any other such governmental agency's rules and
regulations for public water systems or for purposes of facilitating the issuance by the FDEP or any
other such governmental agency a closure letter, a "no further action" letter, or similar evidence of
approval from the FDEP or other such applicable governmental authority indicating that Covered
Contamination has been corrected to the satisfaction of such governmental authority, PURCHASER
shall so restrict the Property. Any such restriction of the use of the Property for a potable water well
shall be for the duration required by the FDEP or the such other governmental agency, as the case may
be, and such restriction shall be recorded in the Official Public Records for Real Property of the county
in which the Property is located. Except for the foregoing potable water well restrictions, any other
institutional or engineering controls proposed for the Property shall be approved by the PURCHASER.
(o) The terms and provisions of this Section 23 shall, to the extent applicable, survive
Closing.
24. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS "AGREEMENT",
"SELLER" MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS
OR IMPLIED, AS TO THE PHYSICAL CONDITION OF THE "PROPERTY." WITHOUT
LIMITATION ON THE FOREGOING, "SELLER" MAKES NO REPRESENTATION OR
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED OR ARISING BY OPERATION OF
LAW, CONCERNING THE "PROPERTY," TITLE TO THE "PROPERTY" (OTHER THAN
Page 20
THE WARRANTY OF TITLE TO THE "PROPERTY" SET FORTH IN THE "DEED"), THE
MAINENANCE, REPAIR, CONDITION, DESIGN, OR MARKETABILITY OF THE
"PROPERTY," THE HABITABILITY OR MERCHANTABILITY OF THE "PROPERTY,"
TOPOGRAPHY, WATER, WATER RIGHTS, UTILITIES, PRESENT OR FUTURE ZONING,
SOILS, SUBSOIL, DRAINAGE, PROPOSED ROUTES OF ROADS OR EXTENSIONS
THEREOF, THE PURPOSES FOR WHICH THE "PROPERTY" IS SUITED, COMPLIANCE
WITH THE AMERICANS WITH DISABILITIES ACT, OR OPERATIVE OR PROPOSED
GOVERNMENTAL. LAWS AND REGULATIONS (INCLUDING, BUT NOT LIMITED TO,
ENVIRONMENTAL AND LAND USE LAWS AND REGULATIONS) TO WHICH THE
"PROPERTY" MAY BE SUBJECT. EXCEPT AS OTHERWISE PROVIDED HEREIN, IT IS
THE EXPRESS INTENTION OF "SELLER" AND "PURCHASER" THAT THE "PROPERTY"
BE CONVEYED TO, AND ACCEPTED BY, "PURCHASER" 1N THE "PROPERTY'S"
PRESENT CONDITION AND STATE OF REPAIR. "PURCHASER" ACKNOWLEDGES
THAT THE "PROPERTY" IS SUBJECT TO THE ,AMERICANS WITH DISABILITIES ACT
("ADA"), A FEDERAL LAW CODIFIED AT 42 USC SECTION 12101 ET SEQ. AMONG
OTHER REQUIREMENTS OF THE "ADA" THAT COULD APPLY TO THE "PROPERTY,"
TITLE III OF THE "ADA" REQUIRES OWNERS AND 'TENANTS OF "PUBLIC
ACCOMMODATIONS" TO REMOVE BARRIERS TO ACCESS BY DISABLED PERSONS
AND PROVIDE AUXILIARY AIDS AND SERVICES FOR HEARING, VISION OR SPEECH
IMPAIRED PERSONS. THE REGULATIONS UNDER TITLE III OF THE "ADA" ARE
CODIFIED AT 28 CFR PART 36. "PURCHASER" ACKNOWLEDGES THAT "PURCHASER"
HAS ENTERED INTO THIS "AGREEMENT"' ON THE BASIS OF "PURCHASER'S" OWN
REVIEW AND INVESTIGATION OF THE APPLICABILITY AND EFFECT OF SUCH LAWS
AND REGULATIONS, AND "PURCHASER" ASSUMES THE RISK THAT ADVERSE
MATTERS MAY NOT HAVE BEEN REVEALED BY "PURCHASER'S" INVESTIGATION.
NO AGREEMENTS, WARRANTIES OR REPRESENTATIONS NOT EXPRESSLY
CONTAINED HEREIN SHALL BIND "SELLER."
25. REMOVAL OF FIXTURES BUILDINGS IMPROVEMENTS.
It is understood and agreed that SELLER, at SELLER'S sole cost and expense, shall remove
or cause to be removed any and all personal property owned by SELLER at the Property and any and
all fixtures, buildings, and improvements located on or under the Property including, without
limitation, the underground petroleum storage tanks and pipelines located on or under the Property
(collectively, the "Improvements") in a good and workmanlike manner and in accordance with all
Page 21
local, state or federal governmental requirements ("Governmental Requirements") on or before the
expiration of ninety (90) days after the Closing (the "Removal Work").
(a) Fifty Thousand and No/100 Dollars ($50,000) of the Purchase Price (the "Escrow
Deposit") shall be retained by Title Company until the Removal Work is completed in accordance
herewith to secure SELLER'S obligations to perform and complete the Removal Work.
(b) The Removal Work shall be deemed to have been completed upon written
certification (the "Completion Certificate") duly and properly executed (i) by SELLER and its
contractor ("Contractor"), and (ii) by PURCHASER. SELLER, promptly upon completion of the
Removal Work, shall prepare the Completion Certificate and deliver a copy of the Completion
Certificate executed by SELLER and Contractor, if applicable, to PURCHASER for PURCHASER'S
reasonable approval and agreement that the Removal Work has been completed in accordance with the
requirements in this Agreement. .PURCHASER shall give SELLER a written notice of dispute within
ten (10) days after PURCHASER'S receipt of the Completion Certificate if PURCHASER does not
agree that the Removal Work has been completed, specifying why PURCHASER does not believe that
the Removal Work has been completed (the "Notice of Dispute to SELLER"). If PURCHASER gives
such written Notice of Dispute to SELLER within said ten (10) day period, then SELLER shall not
deliver the Completion Certificate to Title Company until PURCHASER and SELLER have mutually
and reasonably agreed that the Removal Work has been completed. If PURCHASER does not give
such written Notice of Dispute to SELLER within said ten (10) day period, then PURCHASER shall
be deemed to have agreed that the Removal Work has been completed.
(c) Upon receipt by Title Company of the Completion Certificate from SELLER, Title
Company shall deliver a copy of the Completion Certificate to PURCHASER. Upon the expiration of
ten (10) days after PURCHASER'S receipt of the Completion Certificate from Title Company, and
provided that Title Company has not received a written notice from PURCHASER within said ten (10)
day period stating that PURCHASER disputes the completion of the Removal Work (the "Notice of
Dispute to Title Company"), then Title Company is hereby irrevocably instructed to disburse the
Escrow Deposit to SELLER. PURCHASER shall not give a Notice of Dispute to Title Company if (i)
PURCHASER has not given a Notice of Dispute to SELLER in a timely manner or (ii) PURCHASER
has been deemed to have agreed that the Removal Work has been completed in accordance with the
provisions of (b) above. If Title Company receives a Notice of Dispute to Title Company within ten
(10) days after PURCHASER'S receipt of the Completion Certificate, the Escrow Deposit shall not be
Page 22
disbursed to SELLER except upon the subsequent written direction of PURCHASER and SELLER.
(d) In the event the Removal Work is not completed in a timely manner in accordance
with the terms and provisions hereof, then PURCHASER shall have the right, at its sole discretion,
either to (i) retain title to any such improvements or (ii) undertake and complete, on or before the
expiration of One Hundred Twenty (120) days after the Closing, the Removal Work in a good and
workmanlike manner, in accordance with all applicable Governmental Requirements. If
PURCHASER elects to retain title to any such Improvements, PURCHASER shall promptly instruct
Title Company to disburse the Escrow Deposit to SELLER, and SELLER shall promptly execute a
conveyance document evidencing the conveyance of such title to PURCHASER. If PURCHASER
elects to undertake or complete the Removal Work, the Removal Work shall be deemed to have been
completed by PURCHASER upon the execution of a Completion Certificate by PURCHASER, which
Completion Certificate shall be delivered to the Title Company. PURCHASER shall simultaneously
with the delivery of such original Completion Certificate to Title Company, deliver a copy of the
executed Completion Certificate to SELLER. Upon receipt by Title Company of such Completion
Certificate from PURCHASER, Title Company is irrevocably instructed to disburse to PURCHASER
that portion of the Escrow Deposit equal to the amount of the actual costs incurred by PURCHASER
in removing the Improvements (the "Actual Costs"). In the event the Actual Costs exceed the Escrow
Deposit (the "Excess Costs"), then PURCHASER shall be responsible and liable for any such Excess
Costs. In the event the Actual Costs are less than the Escrow Deposit, then Title Company shall
disburse to PURCHASER that portion of the Escrow Deposit in an amount equal to the Actual Costs,
and Title Company shall disburse to SELLER the remaining amount of the Escrow Deposit in an
amount equal to the Escrow Deposit less the Actual Costs.
Page 23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates indicated
above:
ATTESTED BY:
CITY CLERK
IIIIINW.T"DQU1P
Accepted and Agreed to:
Roger M. Pomerance, P.A.
go
PURCHASER:
CITY OF TAMARAC, a Florida municipal corporation
By: �..
Title: G�ry�au Signedon: , $
SELLER:
CHEVRON U.S.A. INC.
y: .G. Su11 iNki
Title: Assisiant Cretary
Signed on: 7-nami2. J� loop
Signed on:
Page 24
EXHIBIT "A" TO
AGREEMENT FOR PURCHASE
AND SALE OF REAL PROPERTY
(Legal Description)
Lot 15, Block 8 of LYONS COMMERCIAL SUBDIVISION, according to the
Plat thereof, as recorded in Plat Book 69, Page 42 of the Public Records of
Broward County, Florida.
(SUBJECT'I'O VERIFICATION BY CURRENT SURVEY OF THE PROPERTY)
Page 25
EXHIBIT "B" TO
AGREEMENT FOR PURCHASE
AND SALE OF REAL PROPERTY
(Form of Special Warranty Deed)
Document Prepared by:
Jeanne G. Suminski
Senior Counsel
Chevron U.S.A. Inc.
1600 Smith Street, 27`h Floor
Houston, Texas 77002
PROPERTY APPRAISER'S PARCEL IDENTIFICATION NUMBER:
STATE OF FLORIDA
[4161111,k4lf111•li :: • , 0
SPECIAL WARRANTY DEED
FACILITY NO. 53555
5650 PINE ISLAND ROAD TAMARAC FL
This indenture (this "Deed"), made this _ day of , 200_ A.D., between
CHEVRON U.S.A. INC. a Pennsylvania corporation, with offices at 1600 Smith Street, 27h Floor,
Houston, Harris County, Texas 77002 (hereinafter called "Grantor"), and CITY OF TAMARAC, a
Florida municipal corporation with offices at , 'Tamarac,
Florida (hereinafter called "Grantee") witnesseth: That Grantor for and in
consideration of the sum of Two Million Five Hundred Sixty Thousand and No/100 Dollars
($2,560,000) to Grantor in hand paid by Grantee, receipt and sufficiency of which is hereby
acknowledged, has GRANTED, BARGAINED, and SOLD to Grantee and Grantee's successors,
and assigns forever, all that certain tract or parcel of land located in Broward County, Florida and
that is described in Exhibit "1" hereto, together with all appurtenances thereto ( the "Property").
Except for those representations or warranties expressly made in this Deed or in the
Purchase and Sale Agreement dated , 200_, between Grantor and Grantee for the
Property (the "Agreement"), "GRANTOR" MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE PHYSICAL
CONDITION OF THE "PROPERTY." WITHOUT LIMITATION ON THE FOREGOING,
"GRANTOR" MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS
OR IMPLIED OR ARISING BY OPERATION OF LAW, CONCERNING THE "PROPERTY,"
TITLE TO THE "PROPERTY" (OTHER THAN THE WARRANTY OF TITLE TO THE
"PROPERTY" SET FORTH HEREIN), THE MAINENANCE, REPAIR, CONDITION, DESIGN
OR MARKETABILITY OF THE "PROPERTY," THE HABITABILITY OR
MERCHANTABILITY OF THE "PROPERTY," TOPOGRAPHY, WATER, WATER RIGHTS,
UTILITIES, PRESENT OR FUTURE ZONING, SOILS, SUBSOIL, DRAINAGE, PROPOSED
Page 26
ROUTES OF ROADS OR EXTENSIONS THEREOF, THE PURPOSES FOR WHICH THE
"PROPERTY" 1S SUITED, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES
ACT, OR OPERATIVE OR PROPOSED GOVERNMENTAL LAWS AND REGULATIONS
(INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL AND LAND USE LAWS AND
REGULATIONS) TO WHICH THE "PROPERTY" MAY BE SUBJECT. EXCEPT AS
OTHERWISE PROVIDED HEREIN, IT IS THE EXPRESS INTENTION OF "GRANTOR" AND
"GRANTEE" THAT THE "PROPERTY" BE CONVEYED TO, AND ACCEPTED BY,
"GRANTEE" IN THE "PROPERTY'S" PRESENT CONDITION AND STATE OF REPAIR.
"GRANTEE" ACKNOWLEDGES THAT THE "PROPERTY" IS SUBJECT TO THE
AMERICANS WITH DISABILITIES ACT ("ADA"), A FEDERAL LAW CODIFIED AT 42
USC SECTION 12101 ET SEQ. AMONG OTHER REQUIREMENC'S OF THE "ADA" THAT
COULD APPLY TO THE "PROPERTY," TITLE III OF THE "ADA" REQUIRES OWNERS
AND TENANTS OF "PUBLIC ACCOMMODATIONS" TO REMOVE BARRIERS TO ACCESS
BY DISABLED PERSONS AND PROVIDE AUXILIARY AIDS AND SERVICES FOR
HEARING, VISION OR SPEECH IMPAIRED PERSONS. THE REGULATIONS UNDER
TITLE III OF THE "ADA" ARE CODIFIED AT 28 CFR PART 36. "GRANTEE"
ACKNOWLEDGES THAT "GRANTEE" HAS ENTERED INTO THIS "AGREEMENT" ON
THE BASIS OF "GRANTEE'S" OWN REVIEW AND INVESTIGATION OF THE
APPLICABILITY AND EFFECT OF SUCH LAWS AND REGULATIONS, AND "GRANTEE"
ASSUMES THE RISK THAT ADVERSE MATTERS MAY NOT HAVE BEEN REVEALED
BY "GRANTEE'S" INVESTIGATION. NO AGREEMENTS, WARRANTIES OR
REPRESENTATIONS NOT EXPRESSLY CONTAINED HEREIN SHALL BIND "GRANTOR."
"GRANTEE" EXPRESSLY WAIVES ANY RIGHTS OF RESCISSION AND ALL CLAIMS
FOR DAMAGES BY REASON OF ANY STATEMENT, REPRESENTATION, WARRANTY,
PROMISE OR AGREEMENT, IF ANY, NOT CONTAINED IN THIS "AGREEMENT,"
WHETHER OR NOT "GRANTOR AND ITS AFFILIATES" ARE, OR ARE CLAIMED TO BE,
SOLELY, CONTRIBUTORILY, OR CONCURRENTLY NEGLIGENT OR ARE, OR ARE
CLAIMED TO BE, RESPONSIBLE IN WHOLE OR IN PART, OR SOLELY OR JOINTLY,
FOR THE PRESENCE OF SUCH `COVERED CONTAMINATION. "
This conveyance is made subject to (a) liens for property taxes and assessments that are not
due and payable as of the date of execution of this instrument, (b) all matters shown in the public
records that affect or encumber the Property and that are listed and described on Exhibit "I" hereto,
and (c) all matters that can be ascertained by a reasonable inspection or survey of the Property.
(Items (a) through (c) hereinafter are referred to collectively as the Permitted Encumbrances.)
Grantor does hereby warrant the title to the Property subject to the Permitted
Encumbrances, and will defend the same against the lawful claims of all persons claiming by,
through, or under Grantor, but not otherwise.
This instrument may be executed in two counterparts, and it shall not be necessary that the
signatures of both parties hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, and both such counterparts shall constitute one and the same instrument.
Grantee, by Grantee's acceptance hereof, does hereby assume and agree to pay any and all
ad valorem standby fees, taxes, and assessments pertaining to the Property for the calendar year
200_ and subsequent years, there having been a proper proration of ad valorem taxes for the current
calendar year (200_) between Grantor and Grantee. Grantee, by Grantee's acceptance hereof, does
further assume and agree to pay any and all ad valorem taxes relating to a subsequent change in the
usage or ownership of the Property, whether by reason of this conveyance or hereafter.
Page 27
IN WITNESS WHEREOF, Grantor has caused the execution of this instrument as of
200, but to be effective as of , 200_ (the "Effective Date").
WITNESSES: GRANTOR:
CHEVRON U.S.A. INC.
By:
Name: Jeanne G. Suminski
Title: Assistant Secretary
STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on , 200, by Jeanne G.
Suminski, Assistant Secretary of CHEVRON U.S.A. INC., a Pennsylvania corporation, on behalf
of said corporation.
Notary Public in and for the
State of Texas
Notary's Printed Name
My Commission Expires:
Page 28
IN WITNESS 1NT ERFOF. Grantee has caused the execution of this instrument as of
. ?00 . b•ut to be effecti� e as of the Ef7ecti� e Date.
I'l'x'FSSES: GRA'\JTF.:
CITY OF TA\IARIC
B,,
STATF.OI FLORIDA F
C'OL�'x'T1' OF t
-game.
Tit ] e
T}Iis ir:strumcnt Xaas acUcNeicdacd l0of c me or : CAD - 1 \
_ for CITE' OF TA'\I,%RAC. a Fio.lda nut icipal
corporation. on bchalf of said municipal corpc•-ration.
'tintan Vuh!ic il- a:nc'- for IhO
State of F lor,cia
'�otar� s Primed \ar-ie
N1Co-r:rrIiss on E.).nires.
EXHIBIT "I" TO
SPECIAL WARRANTY DEED
(Legal Description of Property and List of Permitted Encumbrances)
FACILITYNO. 53555:
[TO BE PROVIDED]
PERMITTED ENCUMBRANCES:
[TO BE INSERTED]
Page 30
EXHIBIT "2" TO
SPECIAL WARRANTY DEED
(Legal Description of Chevron Property)
Page 31
EXHIBIT "C" TO
AGREEMENT FOR PURCHASE
AND SALE OF REAL PROPERTY
General Conditions of Escrow
Fund
ATTORNEYS' TITLE INSURANCE FUND, INC.
General Conditions of Escrow
Default: Notice of any default, dispute or disagreement among the parties to this agreement shall
be given to The Fund as soon as same arises. Such notice shall be in writing and as thoroughly as
possible describe the dispute, default or disagreement. The notice may be given by any party to this
agreement, and upon receipt of such notice, The Fund shall notify all parties to this agreement of
the dispute.
Subsequent to giving notice of default, dispute or disagreement among the parties, The Fund shall
not disburse funds or deliver documents or other items from escrow, or perform any other act
required by this agreement except upon the specific and mutual agreement, in writing, signed by
the parties to this agreement, or upon the order of a court of competent jurisdiction.
In the event of default, dispute or disagreement about the interpretation of this agreement or the
propriety of any action contemplated by The Fund hereunder, or about the rights and obligations of
any of the parties, The Fund may, in its sole discretion, file an action for interpleader or pursue
other appropriate legal proceedings to resolve the matter. Whether suit is filed or not, The Fund
may retain legal counsel for advice or representation in the event of default, dispute or
disagreement and the parties agree to indemnify The Fund for attorneys' fees, costs, and expenses
arising therefrom. The Fund shall otherwise not be liable for any mistakes of facts or error in
judgment, or any acts or omissions of any kind unless caused by its willful misconduct or gross
negligence, and the parties hereto agree to indemnify and hold The Fund harmless from any claims,
demands, causes of action, liability, damages and judgments, including the costs of defending any
Page 32
action against it, together with any reasonable attorneys' fees, costs, and legal expenses incurred in
connection with The Fund's undertaking pursuant to the terms and conditions of this agreement.
Limits of Liability: The parties agree that The Fund shall not be liable for any loss, costs,
damages or expenses arising out of this agreement, including, but not limited to the following: 1)
Compliance with any legal process, subpoena, writ, order, judgment, or decree of any court issued
with or without jurisdiction and whether or not consequently vacated, modified, set aside or
reversed, 2) The default, error, action, omission or misrepresentation of parties (other than The
Fund) to this agreement, 3) Any loss or impairment of funds that have been deposited in escrow
while those funds are in the process of being collected or while those funds are on deposit in a
financial institution if such loss or impairment results from the failure, insolvency or suspension of
a financial institution, 4) The consequences of any delay or expiration of any time limit caused by
any party to this agreement, other that any delay caused by the willful misconduct or gross
negligence of The Fund, 5) The legal effect, insufficiency, or undesirability of any document
deposited with The Fund, delivered to or by The Fund, or exchanged among the parties, 6) Effects
of the transaction underlying this agreement or of any element of that transaction, any failure or
delay in the surrender of possession of the property, the rights or obligations of any party in
possession of the property, the financial status or insolvency of any party or misrepresentation
made by any party, 7) Any defect in title to property subject to this agreement. With regard to title
to property, this Escrow Agreement is not, and shall not be construed as a warranty or guaranty of
title or any title insurance or commitment to insure. Although title insurance may be issued in the
form of a policy or commitment to insure in conjunction with an Escrow Agreement, the terms and
conditions of any such insurance are solely as stated in the policy or commitment. Such title
insurance is a separate agreement or undertaking from this agreement.
Deposit of Funds: All funds will be processed for collection in the normal course of business. No
disbursement will be made until the funds deposited have been irrevocably credited to The Fund's
account. The Fund may commingle funds received by it in escrow with escrow funds of others, and
may, without limitation, deposit such funds in its interest bearing custodial or escrow accounts with
any financial services entity. The parties agree that The Fund shall be under no obligation to invest
the funds deposited with it on behalf of any depositor, unless specifically directed to do so in
Article I. The Fund shall only be accountable for earnings actually received and shall not be
accountable for incidental benefits or loss of incidental benefits attributable to the funds received.
Page 33
Closing of Escrow: Signed approval of settlement statements or other statements of account by the
parties to this agreement shall constitute mutual instructions to The Fund and authority to disburse
funds as shown thereon. Upon completion of the disbursement of funds and delivery of
instruments, The Fund shall be released and discharged of its escrow obligations hereunder.
Electronic Execution: The parties agree that The Fund shall be entitled to rely upon approvals for
the closing of escrow and upon other communications by the parties hereto transmitted by
electronic means, including but not limited to, facsimile telephone transmission of data and
signatures. The Fund shall not be required to rely upon electronic data, which it determines, in its
sole discretion, to be unreliable.
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Page 34