STATE OF FLORIDA COUNTY OF ESCAMBIA SETTLEMENT AGREEMENT BETWEEN GREG AND FARRIS FORD AND ESCAMBIA COUNTY

Transcription

1 STATE OF FLORIDA COUNTY OF ESCAMBIA SETTLEMENT AGREEMENT BETWEEN GREG AND FARRIS FORD AND ESCAMBIA COUNTY Whereas, Escambia County desires to continue pursuit of an Area-Wide Programmatic Habitat Conservation Plan (AHCP) and associated Incidental Take Permit (ITP) for endangered species on Perdido Key; and Whereas, the US Fish and Wildlife Service has not yet provided final approval of authority by issuance of the AHCP and ITP; and Whereas, in early 2011, Escambia County staff represented to Greg and Farris Ford that there would be no Perdido Key Beach Mouse (PKBM) issues related to development of a single-family home at 755 Destin Court on Perdido Key; and Whereas, Mr. and Mrs. Ford proceeded with the purchase of the property and took additional steps toward the construction of a single-family home on the site; and Whereas, on January 13, 2012, Escambia County issued both a land use approval and a building permit for construction of a single-family home at 755 Destin Court; for the and Whereas, the US Fish and Wildlife Service considers the lot to be suitable habitat PKBM; and Whereas, Escambia County issued a stop work order on February 27, 2012; and Whereas, the parties have reached a compromise position regarding the construction of the single-family home at 755 Destin Court and actions related thereto; and Whereas, the parties desire to resolve this dispute short of litigation and avoid the time and resources involved in litigation; and Whereas, this Agreement provides for an equitable solution for the parties. NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties to this Agreement set forth as follows: 1. Recitals. The above recitals are agreed to be true and incorporated into this Agreement.

2 2. Parties' Responsibilities. A. Escambia County agrees to purchase and the Fords agree to sell to Escambia County, the subject real property at 755 Destin Court on Perdido Key, Florida for the amount of $57, The parties shall close on the real property within sixty (60) days of the date of approval of this settlement agreement by the Board of County Commissioners. The convenyance shall be accomplished pursuant to the terms of the Sales Agreement, attached and incorporated with this Settlement Agreement as Exhibit A. B. The parties agree to provide and execute all documents and information necessary to proceed with closing as may reasonably be required to legally convey the real property. C. Escambia County additionally agrees to compensate the Fords for their losses related to construction in the amount of $57, D. Escambia County additionally agrees to compensate the Fords for interest paid on the construction loan in the amount of $ E. Escambia County agrees to pay reasonable attorney's fees on behalf of the Fords to Thomas Tomasello in the amount of $4, Release and Hold Harmless. By entering this Agreement, and in consideration for the provisions herein, Greg and Farris Ford hereby acquit, release, exonerate, discharge, and hold harmless, Escambia County, its successors, legal representatives, agents, and assigns, of and from any and all obligation, liability or responsibility the County may have arising out of or related to their purchase and development of the real property at 755 Destin Court on Perdido Key. This paragraph shall become effective only at such time as the County fully satisfies its obligations in Paragraph 2 A herein above. 4. No Admission. This Agreement is given and accepted for the purpose of compromising disputed claims and avoiding the expense, inconvenience, and uncertainty of litigation. Nothing contained in this Agreement, nor any consideration given pursuant to it, shall constitute, be deemed, or be treated by any Party for any purpose as an admission of an act, omission, liability, or damages. 5. Termination. This Agreement may be terminated by the parties only in the event of default of this Agreement. 6. Effective Date. This Agreement shall become effective when executed by both parties to the Agreement.

3 7. Liability. No Party shall at any time indemnify the other or be responsible for negligent or tortious acts of any Party. Nothing herein is intended to serve as a waiver of sovereign immunity by any Party to which state sovereign immunity applies and nothing herein shall be construed as consent by them to be sued by third parties in any matter arising out of this Agreement. 8. Public Records. The Parties acknowledge that this Agreement and any related plans, correspondence, and other documents related to the creation of this agreement may be subject to disclosure to any member of the public pursuant to Chapter 119, Florida Statutes, as amended. In the event a Party fails to abide by the provision of Chapter 119, Florida Statutes, the other Party may, without prejudice to any right or remedy and after giving that party, seven (7) days written notice, during which period the Party fails to allow access to such documents, terminate this Agreement. Nothing in this section shall be construed as a waiver of the Fords' attorney-client privilege. 9. All Prior Agreements Superseded. A. This document incorporates and includes expressly and by reference all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained herein, and the Parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained, referenced or incorporated into this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations of Agreements whether oral or written. B. It is further agreed that no modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 10. Headings. Headings and subtitles used throughout this Agreement are for the purpose of convenience only, and no heading or subtitle shall modify or be used to interpret the text of any section. 11. Survival. All other provisions, which by their inherent character, sense, and context are intended to survive termination of this Agreement, shall survive the termination of this Agreement. 12. Governing Law. This Agreement shall be governed by and constructed in accordance with the laws of the State of Florida and venue shall be in the County of Escambia, State of Florida. 13. Severabilitv. The invalidity or non-enforceability of any portion or provision of this Agreement shall not affect the validity or enforceability of any other portion or provision. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and the balance hereof shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable portion or provision.

4 14. Further Documents. The Parties shall execute and deliver all documents and perform further actions that may reasonably necessary to effectuate the provision of this Agreement. 15. No Waiver. The failure of a Party to insist upon the strict performance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of any other provision or of either Party's right to thereafter enforce the same in accordance with this Agreement. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature: Escambia County by and through its Board of County Commissioners, signing by the through its Chairman, authorized to execute same, and Greg and Farris Ford, duly authorized to execute same. COUNTY: BOARD OF COUNTY COMMISSIONERS ESCAMBIA COUNTY, FLORIDA ATTEST: ERNIE LEEMAGAHA Clerk to the Circuit Court BY: Wilson B. Robertson, Chairman BY: Deputy Clerk BCC Approved: as to form

5 FORD: Greg Ford STATE OF FLORIDA COUNTY OF ESCAMBIA The foregoing instrument was acknowledged before me this day of _, 2012, by Greg Ford. He (J is personally known to me, or (J produced current as identification. (SEAL) _ Signature of Notary Public Printed Name of Notary Public STATE OF FLORIDA COUNTY OF ESCAMBIA Farris Ford STATE OF FLORIDA COUNTY OF ESCAMBIA The foregoing instrument was acknowledged before me this day of _, 2012, by Farris Ford. She (_) is personally known to me, or (_) produced current as identification. (SEAL) Signature of Notary Public Printed Name of Notary Public

6 CONTRACT FOR SALE AND PURCHASE THIS IS A CONTRACT for Sale and Purchase (Contract), between GREGORY E. FORD and FARRIS D. FORD, husband and wife, whose address is 6167 Don Carlos Drive, Pensacola, Florida (Sellers), and Escambia County, a political subdivision of the State of Florida, acting by and through its duly authorized Board of County Commissioners, whose mailing address is 221 Palafox Place, Pensacola, Florida (Buyer). 1. AGREEMENT. Sellers agree to sell and Buyer agrees to buy the real properly and improvements described in Exhibit A (Property) upon the terms and conditions staled in this Contract. Approval authorizing this purchase was obtained during a duly advertised meeting of the Board of County Commissioners held on. 2. PURCHASE PRICE; PAYMENT. The purchase price is Fifty-Seven Thousand Dollars ($57,000.00) payable to Sellers at closing. 3. TIME FOR ACCEPTANCE; EFFECTIVE DATE; FACSIMILE. If the Contract is not executed by and delivered to all parties, or fact of execution communicated in writing between the parties, the Contract will be null and void. A facsimile copy of the Contract and any signatures on the Contract will be considered for all purposes as originals. The effective date (Effective Date) of the Contract is the date when the last parly signs the Contract. 4. TITLE EVIDENCE. Within 30 days from the Effective Date ofthe Contract, Buyer shall examine title to the Property. If title is found to be defective in Buyer's opinion, Buyer shall notify Sellers in writing and specify the defects. If the defects render title unmarketable, Sellers have 120 days from receipt of Buyer's notice to remove the defects. Sellers shall, if title is found to be unmarketable, use diligent effort to correct the defects in title within the time provided in the Contracl. If Sellers are unsuccessful in removing the defects within the time provided in the Contract, Buyer may accept title as it then stands or terminate the Contract. 5. SELLERS' AFFIDAVIT AS TO UNRECORDED MATTERS, POSSESSION AND MECHANIC'S LIENS. Subject to any provisions in the Contract to the contrary, Sellers must furnish to Buyer at closing an affidavit in a form acceptable to the Buyer and sufficient to remove standard printed exceptions to title in an owner's policy of title insurance regarding (i) unrecorded matters (except for taxes not yet due and payable and special assessments not shown by the public records), (ii) parties in possession, except for the rights of tenants, if any, as tenants only, in possession and occupancy of the Property underwritten leases which have been furnished to Buyer by Sellers and accepted by Buyer in writing, and (iii) mechanics liens exceptions. Sellers represent to Buyer that there are and at closing there will be no tenants or lessees occupying the Properly or any portion of the Property. The Sellers1 Affidavits must contain information required for completion of Internal Revenue Service 1099 Form and a FIRPTA disclosure. 6. DOCUMENTS FOR CLOSING. Buyer's attorney must prepare and furnish all documents for closing including, but not limited to, the Contract for Sale and Purchase, Satisfaction of Conditions Precedent to Closing, Sellers' Affidavit, Settlement Statement, and Warranty Deed. EXHIBIT A

7 7. COSTS AND EXPENSES. Sellers and Buyer will pay costs and expenses as follows: prorated ad valorem taxes and assessments (Sellers); Deed Documentary Stamp Tax (Buyer); Title Insurance (Buyer); Survey (Buyer); Recording of Deed (Buyer); Buyer's Attorneys' Fees (Buyer); Sellers' Attorneys' Fees (Sellers); costs to cure title defects and encumbrances (Sellers). 8. BROKERS. Neither Buyer nor Sellers have utilized the services of, or for any other reason owes compensation to, a licensed real estate broker. 9. TAXES AND ASSESSMENTS. All real estate taxes and assessments which are or which may become a lien against the Property must be satisfied by Sellers at closing. In the event the closing occurs between January 1 and November 1, Sellers must, in accordance with Section , Florida Statutes, place in escrow with the county tax collector an amount equal to the current taxes prorated to the date oftransfer, based upon the current assessment and millage rates on the Property. In the event the closing occurs on or after November 1, Sellers must pay to the tax collector an amount equal to the taxes that are determined to be legally due and payable. 10. CONVEYANCE AND TRANSFER OF TITLE. Sellers shall convey title to the Property by Warranty Deed, the form of which is attached as Exhibit B, on or before 60 days from the Effective Date. Time is of the essence. 11. CLOSING. This transaction will be closed and the Warranty Deed and other closing documents delivered to Buyer at the Office of the County Attorney, 221 Palafox Place, Suite 430, Pensacola, Florida CLOSING PROCEDURE; DISBURSEMENT OF PROCEEDS OF SALE. At closing, Sellers shall deliver the Warranty Deed and the proceeds of the sale will be disbursed to Sellers in accordance with a settlement statement signed by both parties. 13. FAILURE OF PERFORMANCE. If Buyer fails or refuses to perform the Contract and Sellers are not in default under this Contract, Sellers will receive the deposit/earnest money, if any, plus all interest accrued, paid by Buyer as liquidated damages, consideration for the execution of the Contract and in full settlement of any claims for damages and as Sellers' sole remedy under the Contract and Sellers have no right of specific performance. If Sellers fail or refuse to perform the Contract for any reason and Buyer is not in default under the Contract, (i) Buyer may proceed in law or in equity to enforce Buyer's rights under the Contract, or (ii) Buyer may elect to terminate the Contract and to receive the return of Buyer's deposit, plus interest earned, and reimbursement from Sellers for all costs and expenses Buyer incurred with regard to the Contract in full settlement ofany claims for damages. 14. ATTORNEY FEES; COSTS. In connection with any litigation arising out of the Contract, each party is responsible for its own attorneys' fees and costs. 15. SURVIVAL. It is understood and agreed that all representations and warranties contained in the Contract and any provision of the Contract which by their nature and effect are required to be observed, kept or performed after closing, (i) survive closing and the delivery of the Warranty Deed, and (ii) remain binding upon and for the benefit of the parties to the Contract, their

8 respective successors and assigns, until fully observed, kept or performed. 16. ASSIGNABILITY. Buyer and Sellers cannot assign the Contract or rights under the Contract without the express written consent of the other. closing. 17. RISK OF LOSS. The risk of loss to the Property is the responsibility of Sellers until 18. RADON GAS. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from the Escambia County public health unit. 19. OTHER AGREEMENTS. This Contract is being executed in conjunction with a settlement agreement between the parties dated No other prior or present agreements or representations are binding upon Buyer or Sellers unless included in the Contract. No modification or change in the Contract are valid or binding upon the parties unless in writing and executed by the parties to be bound. 20. NOTICES. Any notice or demand to be given or that may be given under this Contract must be in writing and delivered by hand or delivered through the United States mail to: TO BUYER: TO SELLERS: County Administrator or designee Gregory E. Ford and Escambia County, Florida Farris D. Ford 221 Palafox Place 6167 Don Carlos Drive Pensacola, Florida Pensacola, Florida WITH A COPY TO: Escambia County Attorney's Office 221 Palafox Place, Suite 430 Pensacola, Florida COUNTERPARTS. The Contract will be executed in duplicate counterparts, both of which taken together constitute one and the same instrument and any party or signatory may execute the Contact by signing a counterpart. 22. THIRD PARTY LEASES AND CONTRACTS. Seller shall at closing furnish to Buyer releases or subordination from any mortgage or existing leases. 23. SURVEY. Buyer may obtain a survey at its own expense. If Buyer prepares a survey and objectionable items are disclosed, objectionable matters will be viewed as title defects and the provisions of Paragraph 4 shall apply.

9 24. INSPECTION OF PROPERTY. Upon reasonable notice and without disruption of Seller's current use of the Property, Buyer may have subsurface investigations and environmental audits of the Property made by qualified geotechnical and environmental engineers sufficient in the judgment of the inspecting engineer to ascertain whether or not the Property meets the standards acceptable to Buyer. In the event that the report indicates that the Property does not meet Buyer's standards, Buyer, by notice to Seller on or before 10 days prior to closing, has the option of terminating the Contract and Seller agrees to return any deposit paid by Buyer. Seller warrants that there are no facts known to Seller materially affecting the value ofthe Property, which are not readily observable by Buyer or which have not been disclosed to Buyer. 25. ACCESS. Upon prior notice to Seller, Buyer and Buyer's agents and representatives have the right of access to the Property at any reasonable time prior to closing for the purpose of making the investigations, environmental audits, inspections and surveys authorized by the Contract, provided neither Buyer nor its agents interfere with the use ofthe Property by Seller or its employees or customers. 26. OCCUPANCY AND POSSESSION. Seller warrants delivery of possession of the Property to Buyer at closing. 27. CONDEMNATION. Seller conveys by sale the Property for public use and waives any right to compensation for the Property other than as provided for in the Contract. If at any time prior to closing, the Property or any portion of the Property is taken by the exercise of eminent domain by another entity possessing those powers or if any preliminary steps in any taking by eminent domain of all or any portion of the Property occurs prior to closing, either Seller or Buyer may, at Buyer's option, within 10 days after notice of this fact from Seller, rescind the Contract and Seller must return any deposit paid under the Contract to Buyer. Upon refund of the deposit, plus any interest earned, Buyer and Seller are released, as to one another, of all further obligations under the Contract. Seller shall notify Buyer of any taking by eminent domain and all steps preliminary to any taking immediately upon Seller's knowledge of the occurrence. If Buyer does not exercise Buyer's option to rescind under this Paragraph, the Contract remains in full force and effect. In this event Seller, (i) shall pay to Buyer at closing all proceeds previously received by Seller from the condemning authority, and (ii) shall assign to Buyer at closing all proceeds to be paid by the condemning authority after closing by an instrument of assignment in a form reasonably acceptable to Buyer. 28. FOREIGN INVESTMENT AND REAL PROPERTY TAX ACT (FIRPTA) AFFIDAVIT. Seller agree to furnish to Buyer at closing a transferor's certification disclosing under penalty of perjury Seller's foreign or non-foreign status and Seller's United States federal identification number. The certification must be, (i) in a form acceptable to Buyer, and (ii) if Buyer has non-foreign status, in a form meeting the requirements of Section 1445(a) of the Internal Revenue Code of 1986, as amended, and the Regulations under Section 1445(a). THIS CONTRACT IS INTENDED TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING.

10 THIS CONTRACT SHALL NOT BE EFFECTIVE UNLESS APPROVED BY THE ESCAMBIA COUNTY BOARD OF COUNTY COMMISSIONERS AT A DULY NOTICED PUBLIC MEETING. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: ATTEST: Ernie Lee Magaha Clerk of the Circuit Court ESCAMBIA COUNTY, FLORIDA by and through its duly authorized BOARD OF COUNTY COMMISSIONERS Wilson B. Robertson, Chairman Deputy Clerk BCC Approved: SELLERS: GREGORY E. FORD STATE OF FLORIDA COUNTY OF ESCAMBIA The foregoing instrument was acknowledged before me this day of,2012, by produced current _, who (_) is personally known to me, (_) as identification. Signature of Notary Public (Notary Seal) Printed Name of Notary Public

11 FARRIS D. FORD STATE OF FLORIDA COUNTY OF ESCAMBIA The foregoing instrument was acknowledged before me this day of, 2012, by, who (_) is personally known to me, (_) produced current as identification. Signature of Notary Public (Notary Seal) Printed Name of Notary Public

12 EXHIBIT A Lot 6, Reflections, a subdivision of a portion of Section 35, Township 3 South, Range 32 West, Escambia County, Florida, according to plat recorded in Plat Book 16, Page 15, of the Public Records of said County.

13 EXHIBIT B This Document Was Prepared by: Stephen G. West, Senior Assistant County Attorney Escambia County Attorney's Office 221 Palafox Place, Suite 430 Pensacola, Florida (850) STATE OF FLORIDA COUNTY OF ESCAMBIA WARRANTY DEED THIS DEED is made and entered into this day of, 2012, by and between GREGORY E. FORD and FARR1S D. FORD, husband and wife, whose address is 6167 Don Carlos Drive, Pensacola, Florida (Grantors), and Escambia County, a political subdivision of the State of Florida, acting by and through its duly authorized Board of County Commissioners, whose address is 221 Palafox Place, Pensacola, Florida (Grantee). WITNESSETH: GRANTORS, for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration in hand paid by Grantee, receipt of which is acknowledged, conveys to Grantee, its successors and assigns forever, the following described land situated in Escambia County, Florida: Lot 6, Reflections, a subdivision of a portion of Section 35, Township 3 South, Range 32 West, Escambia County, Florida, according to plat recorded in Plat Book 16, Page 15, of the Public Records of said County. Parcel Identification Number: 353S (Property). THIS CONVEYANCE IS SUBJECT TO taxes for the year 2012 and subsequent years; conditions, easements, and restrictions of record, if any, but this reference does not operate to reimpose any of them; and zoning ordinances and other restrictions and prohibitions imposed by applicable governmental authorities. GRANTORS covenant with Grantee that at the time of delivery of this deed, Grantors were well seized of the Property; Grantors have good right and title to convey; the property is free from all encumbrances to Grantee; Grantee shall have the peaceable and quiet possession ofthe Property; and Grantors fully warrant the title to the Property and will defend it against the lawful claims of all persons whomsoever. THIS PROPERTY IS NOT THE HOMESTEAD PROPERTY OF THE GRANTORS. IN WITNESS WHEREOF, Grantors have signed and sealed these presents on the day and year first above written.

14 GRANTORS: Gregory E. Ford STATE OF _ COUNTY OF The foregoing instrument was acknowledged before me this day of_ 2012, by Gregory E. Ford, who (_) is personally known to me, (_) produced current as identification. Signature of Notary Public (Notary Seal) Printed Name of Notary Public Farris D. Ford STATE OF _ COUNTY OF The foregoing instrument was acknowledged before me this day of 2012, by Farris D. Ford, who (_) is personally known to me, (_) produced current as identification. Signature of Notary Public (Notary Seal) Printed Name of Notary Public