ALF SITE - 8/26/96
Xxxxxx Bay
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DEPOSIT RECEIPT AND SALES AGREEMENT
THIS AGREEMENT, made and entered into this 5th day of September, 1996, by
and between XXXXXX BAY PROPERTIES, INC., a Florida Corporation, 0000 Xxxxxx Xxx
Xxxxxxxxx, X.X., Xxxxx 000, Xxxxxx Xxxxxxx, Xxxxxxx 00000, hereinafter "Seller",
and CAREMATRIX OF MASSACHUSETTS, INC., (f/k/a CAREMATRIX CORPORATION), a
Delaware corporation, whose address is 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, hereinafter "Purchaser".
W I T N E S S E T H:
That for and in consideration of the mutual covenants contained in this
Agreement, other good and valuable considerations, and subject to all the
conditions and restrictions, contained in this Agreement, Seller agrees to sell
to Purchaser and Purchaser agrees to purchase from Seller the land described on
Exhibit A attached hereto, and all easements and rights of way appurtenant to
such land, (collectively, the "Land");
Seller understands and acknowledges that Purchaser intends to develop and
use the Land as a senior housing facility offering personal care with a minimum
of 148 and a maximum of 175 independent and/or assisted living units (provided,
however, that Purchaser at its sole election may elect to construct less than
175 such units), together with related improvements, parking and landscaping
(the "Intended Use").
Seller acknowledges and agrees that Purchaser shall have the right to
designate a nominee to take title to the Land by notice to
Seller given not later than the Closing Date (as defined below), provided that
such nominee owns or controls or is owned or controlled by (i) Purchaser, any
affiliate of Purchaser, (ii) PhyMatrix Corporation, any affiliate of PhyMatrix
Corporation, or (iii) any entity owned or controlled by or under common control
with Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx or Xxxxxx Xxxxxx, or any combination of
them.
1. PURCHASE PRICE AND CLOSING. The overall purchase price for the Land
shall be One Million Three Hundred Sixty Thousand Dollars ($1,360,000.00),
payable as follows:
A. Purchaser has paid Twenty-Five Thousand Dollars ($25,000.00) upon
execution of a letter of intent, which deposit is held by Attorneys for
Purchaser, Gunster, Yoakley, Xxxxxx-Xxxxx and Xxxxxxx, P.A., Xxxxxxxx
Point, Suite 500 East, 000 Xxxxx Xxxxxxx Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx
00000-0000, ("Escrow Agent").
B. An additional deposit of Fifty Thousand Dollars ($50,000) will be
paid by Purchaser to the Escrow Agent upon execution of this Agreement and
will also be held in escrow by the Escrow Agent.
C. The last date upon which both parties execute this Agreement, shall
be the "Effective Date." All monies paid pursuant to this Paragraph shall
be referred to as "Deposits" and upon receipt of a duly executed I.R.S.
form W-9 from Purchaser, shall be deposited in an interest bearing money
market account in a Federally
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insured depository institution. All interest shall be paid to Purchaser at
the time said Deposits are disbursed pursuant to this Agreement, unless
such Deposits are forfeited to Seller as a result of Purchaser's default.
If Purchaser is entitled to and in fact exercises any of Purchaser's
options to terminate this Agreement as provided herein, then the Deposits
and all other payments made to Escrow Agent or Seller by Purchaser
hereunder shall be promptly refunded in full by Escrow Agent and/or Seller,
as appropriate, to Purchaser in accordance with the terms of this
Agreement, but in no event later than ten (10) calendar days after such
notice of termination is given. If Seller fails to authorize the Escrow
Agent to make said refund when due, Seller shall be responsible to pay
Purchaser interest on such funds at a rate per annum equal to the prime
rate or base rate of The First National Bank of Boston plus ten percent
(10%) per annum, commencing upon the date notice of termination is given
and continuing until said refund has been made in full.
D. Purchaser shall pay One Million Three Hundred Sixty Thousand
Dollars ($1,360,000.00) cash at closing on the Land, subject to the
adjustments set forth in paragraph 1.G below of which the deposits referred
to in Sub-Paragraphs A and B shall be a part.
E. All monies due shall be U.S. funds in the form of cash, cashier's
check drawn on a local bank or wire
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transfer completed before noon on the date due. Any prorations shall be
added to or deducted from cash at closing.
F. The closing hereunder shall take place at the office of Seller's
attorney. Closing on the Land shall occur at 12:00 E.S.T. on March 3, 1997,
unless extended as provided herein (the "Closing Date"). If Purchaser is
diligently pursuing the financing and Permits (as defined below) necessary
to construct its proposed development as specified in paragraph 2.B. below,
but has not obtained the same by February 21, 1997, Purchaser may extend
the Closing Date for up to two thirty (30) day periods to no later than May
2, 1997, by giving Seller written notices of each thirty (30) day extension
a minimum of ten (10) days prior to the closing date, each notice being
accompanied by Seven Thousand Five Hundred Dollars ($7,500). Each payment
for an extension shall be paid for each thirty (30) day period or any
fraction thereof. Extension payments are non-refundable if the closing does
not occur, except in the event of Seller's default or Buyer's failure to
obtain permits. The extension payments shall be credited against the
purchase price at closing.
G. The purchase price referred to in Paragraph 1.A. above (the
"Purchase Price") shall be adjusted to reflect the following:
(i) Assessments due under the recorded declarations affecting the
Land shall be apportioned as of the Closing
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Date, and the net amount shall be added to or deducted from the
Purchase Price, as the case may be;
(ii) Ad valorem real estate taxes shall be adjusted in the manner
set forth in Paragraph 12.C. below;
(iii) If at any time following the making of any of the
adjustments to the Purchase Price, the amount thereof shall prove to
be incorrect, or it should be discovered that some adjustment which
should have been made was inadvertently omitted altogether, the party
in whose favor the error was made shall pay the sum necessary to
correct such error to the other party promptly following receipt of
notice of such error from such other party. The provisions of this
Paragraph 1.G. shall survive the closing of the transaction
contemplated by this Agreement.
2. INSPECTION OF LAND; PERMITS
A. Purchaser shall have ninety (90) days from the Effective Date
("Inspection Period") to inspect the Land and conduct any tests and studies
necessary to satisfy Purchaser that the Land is suitable for the Intended
Use. Seller hereby acknowledges granting Purchaser and its agents and
employees the right to enter on to the Land commencing on the Effective
Date, through the Closing Date, unless this Agreement is canceled pursuant
to terms herein, for the purpose of performing inspections, appraisals,
environmental tests, including but not limited to soil borings, and all
other
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relevant investigation required by Purchaser. Seller acknowledges and
agrees that Purchaser and its representatives shall have access to the Land
at any time during normal business hours and from time to time, at
Purchaser's sole cost and expense:
(i) to show the Land to third parties (including, without
limitation, contractors, engineers, architects, attorneys, insurers,
banks and other lenders or investors, and prospective tenants,
occupants or buyers) and
(ii) to perform any and all tests, borings, inspections,
environmental site assessments and measurements which Purchaser
reasonably deems necessary or appropriate hereunder, including without
limitation, for purposes of locating all utility conduits serving the
Land, making soil borings, performing soil compaction tests,
performing mechanical or structural inspections, and making such
surveys and other topographical and engineering studies, and other
tests and studies as Purchaser or Purchaser's lender may deem
necessary or appropriate. Seller further acknowledges and agrees that
Purchaser may discuss the Land and/or the Intended Use with any
federal, county, state or local officials or authorities concerning
variances, permits, certificates, consents, approvals and other
governmental regulations for the use, operation, and/or leasing of the
Land.
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Seller shall not be liable to Purchaser for any damage suffered by
Purchaser as a result of any delays or accidents resulting from such
inspections or tests performed by or for Purchaser.
B. Purchaser shall have until February 21, 1997, to
(i) obtain all permits, consents, licenses, technical deviations
and approvals, including all building permits (collectively "Permits")
necessary for the Intended Use of the Property in accordance with, and
as contemplated by, the Final plans and specifications approved by the
parties hereunder (the "Development"), and the relevant appeal periods
for such Permits, if any, shall have expired without any appeals
having been taken, and (ii) to obtain financing for the Development
upon such terms and conditions which are satisfactory to Purchaser in
its sole discretion (the "Approval Period"). Purchaser shall be
obligated to diligently pursue obtaining such Permits and financing.
Seller agrees to reasonably cooperate with Purchaser in obtaining such
Permits and financing, including the execution of any necessary
documents or approvals. If either the financing or all Permits have
not been obtained (including the expiration of applicable appeal
periods without any appeals being filed) by February 21, 1997,
Purchaser shall have the right to extend the Approval
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Period for up to two additional thirty (30) day periods by providing a
notice in the manner described in Paragraph 1.F above. Each extension
shall be for the sole purpose of obtaining financing and completing
the required regulatory approval process as set forth herein. However,
Purchaser may not commence any work or construction whatsoever,
including clearing, except as is necessary to conduct Inspection
Period investigations on any portion of the Land until Purchaser has
closed on the Land.
C. Purchaser agrees to indemnify, defend and hold harmless Seller from
and against any and all loss, cost, damage or expense (including without
limitation reasonable attorneys' fees and expenses, including on appeal)
resulting from Purchaser's (or its agents', employees' and contractors')
entry on the Land and/or the performance by them of any inspections, tests
or other actions, except where any such loss, cost, damage or expense is
the result of Seller's negligence, and in all events such agreement shall
survive the termination of, and any closing under, this Agreement for a
period equal to the applicable statutes of limitations for any claim made
against Seller for which Purchaser's indemnity applies.
D. Purchaser may, for any reason or no reason, cancel this Agreement
on or before the expiration of the Inspection
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Period. After the expiration of the Inspection Period, Purchaser may only
cancel this Agreement if it fails to obtain all Permits (or determines that
the same will not be forthcoming) or if it fails to obtain financing for
the Development upon such terms and conditions as are satisfactory to the
Purchaser in its sole discretion. The cancellation must be by written
notice sent to Seller on or before 5:00 p.m. E.S.T. at the expiration of
the Inspection Period or Approval Period (which ever is applicable),
whereupon all Deposits, together with interest earned thereon, shall be
returned to Purchaser, and each party shall be relieved of any obligations
hereunder except Purchaser's indemnifications provided in Sub-Paragraph C
above and Paragraph 19 below.
E. If Purchaser has not notified Seller that it is canceling this
Agreement as specified herein, it shall be conclusively presumed that
Purchaser has elected to close hereunder.
F. Seller covenants that between the date of this Agreement and the
closing:
(i) Promptly upon its execution hereof and in any event within
five (5) days following its execution hereof, Seller will furnish to
Purchaser for Purchaser's review, inspection and approval complete and
accurate copies of all records and documentation and all information
in its possession (or in the possession of Seller's attorneys or
representatives) as Purchaser may
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reasonably request concerning the ownership and condition of the Land
or are the subject of the declarations referred to herein (for
informational purposes, without warranty or representation regarding
its accuracy), including, without limitation, any available plans and
surveys, engineering reports, recorded title documents, soil tests,
environmental site assessments, permits, approvals, and such other
available items as requested by Purchaser. Except as necessary in
connection with the permitting and approval process for the Project,
Purchaser will hold all such documents, data and information obtained
solely from Seller confidential. Upon termination of this Agreement as
provided herein, and provided that such termination is not a result of
Seller's default hereunder, Purchaser will promptly return to Seller
all such information obtained from Seller;
(ii) Seller shall not permit any new occupancy of or enter into
any new lease for, space in or on the Land, or any portion thereof, or
enter into a renew any management, maintenance, service or other
agreement affecting the Land, or enter into a renew any management,
maintenance, service or other agreement affecting the Land, unless
Purchaser has previously approved such agreement in writing;
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(iii) Seller shall not prosecute, and shall not withdraw, settle
or otherwise compromise, any protest or reduction proceeding affecting
real estate taxes assessed against the Land for the year in which the
closing occurs or any prior or subsequent year without the prior
written consent of Purchaser; and
(iv) Seller shall not encumber, modify or alter the Land in any
respect.
3. USE OF LAND. Seller represents that the Land may be used by Purchaser to
develop the Land for the Intended Use, together with adequate parking of no less
than one hundred forty two (142) spaces, driveways, and landscaping, consistent
with the "Site Restrictions" to be delivered by Seller as described in Sub
Paragraph 4.B. below. The Preliminary Site Plans attached as Exhibit B are
approved by Seller.
4. PRE-CLOSING DEVELOPMENT ACTIONS. In addition to the other pre-closing
actions set forth herein, the parties agree to take the following actions after
the Effective Date and by the deadlines herein established:
A. Within forty-five (45) days after the Effective Date, Purchaser
shall at its sole expense cause to be prepared and submit to Seller a PUD
site plan of the Development, which site plan shall be in conformance with
one of the Preliminary Site Plans (the "PUD Site Plan"). Within five (5)
business days after receipt of the PUD Site Plan, Seller shall submit the
same to Xxx County and
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diligently attempt to obtain written approval for the PUD Site Plan from
the appropriate governmental officials of Xxx County, Florida. The date on
which such approval is granted, if at all, is hereinafter referred to as
the "PUD Approval Date." If Seller fails to obtain such approval within
thirty (30) days after submission, then Purchaser shall be entitled to
terminate this Agreement in accordance with Paragraph 2.D above.
B. Within fifteen (15) days after the PUD Approval Date, Seller shall
cause to be prepared and shall submit to Purchaser "Site Restrictions" for
the Land, consistent with the terms of Paragraph 3 above.
C. Within forty-five (45) days after the PUD Approval Date, but in any
event prior to submission to Xxx County, purchaser will cause to be
prepared and shall submit to Seller final site development plans ("Final
Site Development Plans") meaning the final plans and specifications for the
site development work ("Site Development Work") proposed to be submitted by
Purchaser to Xxx County, Florida ("Xxx County") with applications for a
final development order ("FDO") permitting construction of infrastructure
on the Land. The Final Site Development Plans will be prepared at
Purchaser's expense and shall be in substantial conformance with one of the
proposed Preliminary Site Plans.
D. Within forty-five (45) days after the PUD Approval Date, Purchaser
shall cause to be prepared and
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submit to Seller elevations and related design proposals (including without
limitation proposals showing exterior materials and colors) for the
building and related improvements Purchaser intends to build upon the Land
(the "Building Plans") reasonably sufficient in detail to allow Seller to
confirm consistency of the building and related improvements with the other
development existing and contemplated within the Xxxxxx Bay development and
to otherwise approve the building and related improvements. The Building
Plans shall be prepared at Purchaser's expense. The final plans and
specifications for the building and related improvements, shall be a true
extension of and consistent with the Building Plans.
E. Within forty-five (45) days after the PUD Approval Date, Purchaser
shall cause to be prepared and submit to Seller signage and landscaping
plans (the "Signage Plan" and "Landscaping Plan", respectively) for the
signage and landscaping that Purchaser plans to install on the Land. The
Signage Plan and Landscaping Plan shall be prepared at Purchaser's expense.
F. Seller acknowledges that it has appointed Xxxx Xxxxxxx and Xxxxxx
Xxxxxx and X. Xxxxxxx (the "Appointees") as members of the New Construction
Committee which has been formed pursuant to the Declaration of Covenants,
Conditions and Restrictions for Xxxxxx Bay Merchants' Association recorded
August 1, 1994
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in official Records Book 2523, Page 3148, Public Records of Xxx County,
Florida. Seller shall cause all Appointees (and such other members of the
New Construction Committee which Seller may appoint after the Effective
Date, or which are affiliated with or under the control of Seller) to
approve any plans submitted by Purchaser so long as such plans are in
substantial conformance with the proposed Site Plans, Building Plans,
signage Plan or Landscaping Plan, as the case may be.
G. All other permits or approvals required from any governmental
authority to construct and operate Purchaser's Development shall be
Purchaser's sole obligation.
H. The party receiving documents pursuant to SubParagraphs 4.A - D
above shall review and provide written comments (in reasonable detail) or
approval to the other party within fifteen (15) days of receipt. Failure to
timely provide such written comments shall mean that the documents are
acceptable as submitted. Purchaser understands and agrees that Seller has
the right to reject any proposed site plans, plans and specifications for
aesthetic reasons including, without limitation, the architectural
components and theme and colors so long as any denial is supported in
writing with constructive resolutions. It is the parties' intent hereunder
that all such documents shall be approved prior
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to the expiration of the Inspection Period. It the parties are unable to
reach agreement on all such documents, Purchaser or Seller may cancel this
Agreement during the forty-five (45) day period following the PUD Approval
Date by giving written notice to the other party, whereupon all Deposits
shall be returned to Purchaser, and each party shall be relieved of any
obligations hereunder except Purchaser's indemnifications provided in
Sub-Paragraph 2.C. herein and the provisions of Paragraph 19 below. If
Purchaser cancels the Agreement, the provisions of Sub-Paragraph 2.D. shall
apply.
5. INTENTIONALLY OMITTED.
6. INTENTIONALLY OMITTED.
7. COMPLETION OF CONSTRUCTION.
A. Purchaser agrees to commence construction of the Development
(defined as completion of the foundation footers) within twelve (12) months
after Closing. If Purchaser fails to timely commence construction, Seller
shall have a right to repurchase the Land upon written notice to Purchaser.
Seller shall have three (3) months within which to exercise its right and
closing shall occur thirty (30) days thereafter. The Seller's repurchase
price shall be the Purchaser's price on the original sale, deducting from
that price the Seller's costs from both the original and repurchase sales.
If Purchaser has commenced construction after the deadline for
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commencement but prior to Seller's exercise of its right of repurchase,
then Seller shall not have a right of repurchase. However, Purchaser's
deadline for completion of construction (as defined below) shall be thirty
(30) months after Closing. If Seller fails to exercise its repurchase right
in accordance with this Paragraph 7, then such repurchase right shall
automatically be terminated and of no further force or effect.
Notwithstanding the foregoing, in no event shall Purchaser be obligated to
develop or construct anything upon the Land, whether as contemplated by the
Preliminary Site Plans or otherwise.
B. In the event that the Purchaser has commenced construction of the
Development but fails to complete construction (defined as securing a
temporary or permanent certificate of occupancy from the appropriate
authorities of Xxx County) within eighteen (18) months after commencement,
Seller shall be entitled to enforce Purchaser's obligation to complete by
suit for specific performance. Provided, however that the time period to
complete all construction on the Land shall be extended for delays caused
by Seller or by events constituting Force Majeure. For purposes of this
Agreement, the term Force Majeure shall be defined as any "Acts of God" or
other acts outside of the reasonable control of the Purchaser.
8. TITLE EVIDENCE.
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A. Purchaser may, at its option, obtain a title insurance commitment
(and an owner's policy of title insurance after closing) for the Land. In
any event, without limiting Purchaser's right to terminate under Paragraph
2.D., Seller shall convey fee simple marketable and insurable title to the
Land by Warranty Deed, subject only to the following "Permitted
Encumbrances":
(1) Real property taxes for the current and subsequent years which
are not yet due or payable
(2) Covenants, conditions, restrictions, easements, terms, notices,
and other matters as reflected on the Plats of Xxxxxx Bay Unit 28
recorded in Plat Book 55, Page 91,
(3) Zoning, subdivision, building and other ordinances and
regulations of Xxx County, Florida;
(4) The Commercial Restrictions recorded in O.R. Book 2523, Page 3148
of the Public Records of Xxx County, Florida, which restrictions
shall impose assessments for maintenance of Common Areas;
(5) The Site Restrictions;
(6) Declaration of Protective Covenants and Restrictions recorded in
O.R. Book 2523, page 3262, Public Records of Xxx County, Florida.
B. In addition to the other conditions to be satisfied hereunder,
Purchaser's obligations to close hereunder are expressly contingent upon
Purchaser obtaining a commitment from a title insurance company selected by
Purchaser pursuant to which such company agrees to issue to Purchaser an
ALTA Form B owners' policy of title insurance in the amount of the Purchase
Price insuring Purchaser's title to the Land and its
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mortgagee's interest thereto, subject only the Permitted Encumbrances, and
provided the same do not interfere (in Purchaser's reasonable discretion)
with the development, use, operation, leasing and/or sale of the Land for
the Intended Use and containing such endorsements as Purchaser may require
and as may be available under applicable Florida law. Within thirty (30)
days after the Effective Date, Purchaser shall obtain the title insurance
commitment and notify Seller in writing specifying its objection to any
matters therein which are not Permitted Encumbrances. Seller shall cure
such objections within sixty (60) days following receipt of such notice,
failing which Purchaser shall have the option of either accepting title as
it then exists or terminating this Agreement, in which event the Deposits
together with all interest thereon shall be immediately refunded to
Purchaser, where upon all obligations of the parties hereto shall cease and
this Agreement shall be void and without recourse to the parties hereto. At
closing, the title insurance commitment shall be endorsed to delete any and
all requirements or preconditions to the issuance of the title insurance
policy (and Seller shall execute and deliver such documents and instruments
and undertake such actions and activities as may be required to delete such
requirements or preconditions) and to delete any exception for matters
arising or
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attaching subsequent to the effective date of the commitment and before
acquisition of record of fee simple title to the Land by Purchaser and any
standard exception. If such endorsements cannot be obtained by Purchaser,
Purchaser shall notify Seller in writing of such fact. Seller shall obtain
such endorsements between ninety (90) days following receipt of such
notice, failing which Purchaser shall have the option of either accepting
title as it then exists or terminating this Agreement, in which event the
Deposits together with all interest thereon shall be immediately refunded
to Purchaser, whereupon all obligations of the parties hereto shall cease
and this Agreement shall be void and without recourse as to the parties
hereto.
9. OTHER CONDITIONS AND RESTRICTIONS. Without limiting Purchaser's rights
under Paragraph 2.D. above, Purchaser understands and agrees that:
A. Use of the Land is subject to the permitted zoning and other
conditions and restraints imposed by PUD Ordinance 81-55 (the "Ordinance")
enacted by the Board of County Commissioners of Xxx County, Florida, and by
Development Order 81-55 (the "DO") also issued by the Board, and by any
amendments to the PUD Ordinance and Development Order. The Ordinance and
the DO have been delivered to Purchaser upon execution hereof.
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B. Surface water drainage and management for the Land conform to the
Xxxxxx Bay Master Development Plan.
C. The Land will be conveyed subject to the Commercial Restrictions
recorded in O.R. Book 2523, Page 3148, et. seq., of the Public Records of
Xxx County, Florida, which created a property owners association for the
Commercial Development and other commercially zoned property within Xxxxxx
Bay. Purchaser understands and agrees that ownership of the Land shall not
confer upon Purchaser, or its successors, assigns or any of its customers,
any right of access to or use of any of the amenities within the Xxxxxx Bay
development intended for the use of its residential owners, including but
not limited to, parks, bike paths, the golf or tennis club, or the beach
park.
10. REPRESENTATIONS AND WARRANTIES. As part of the consideration of this
Agreement, Seller hereby makes the following representations and warranties
which Seller shall reaffirm as of the closing date:
A. Seller has not and will not make any arrangements concerning the
use of the Land without the approval of Purchaser, except such agreements
that are actually terminable upon closing on the Land and do not physically
alter the Land. No changes to the covenants, restrictions and association
documents which affect the Land shall be made by Seller without prior
written notification to Purchaser.
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B. All ad valorem property taxes for the Land have been fully paid for
the year 1995, and all prior years, and except for assessments which may be
levied pursuant to the Commercial Restrictions, there are no special or
other assessments levied against the Land which are not yet a lien on the
Land, and the Land is not benefitted by existing or contemplated
improvements which may result in special taxes or assessments to be paid
subsequent to the date hereof.
C. No representation, covenant or warranty by Seller nor any statement
or certification given or to be given to Purchaser hereunder, or with
respect to the transaction contemplated hereby, contains or will contain,
on the dates as of which they are given or made, any untrue statement of a
material fact necessary to make the statements contained therein not
misleading.
D. Except for this Agreement, the Land is currently not subject to nor
shall Seller enter into any purchase contracts or options or the like.
E. There are currently no applications, ordinances, petitions,
resolutions or other matters pending before any governmental agency which
would adversely affect the development of the Land for the Intended Use in
accordance with this Agreement and Seller shall not take any affirmative
action during the term of this Agreement which could so affect the Land.
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F. The Land is zoned C-1, which permits the construction of the
Development for the Intended Use as described in Paragraph 3.
G. To the best of Seller's knowledge and belief, there are currently
no condemnation proceedings threatened or pending which would affect any or
all of the Land or the Commercial Development. There are no matters
threatened or pending before any governmental agency in regard to access
routes, curb cuts, median strips, or other contemplated actions of public
agencies which, in the exercise of Seller's reasonable judgment, might tend
to diminish or curtail the full flow of traffic by the Land and access
thereto.
H. To the best of Seller's knowledge: the Land is free of all
hazardous materials or substances; the Land has been operated and
maintained in compliance with all applicable environmental laws, statutes,
ordinances, rules, and regulations; no release of any hazardous substance
or discharge of any solid or hazardous waste has taken place on the Land;
no migration of hazardous waste or hazardous substances has taken place
from the Land which would cause the release of any hazardous substance or
discharge of any solid or hazardous waste on any adjoining lands or any
other lands in the vicinity of the Land, there are no bulk or underground
storage tanks on, in or adjacent to the Land, and there are no threatened
or endangered species of wildlife on the Land as such terms are defined by
applicable Federal or State law.
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I. Seller is duly organized, validly existing and in good standing
under the laws of Florida, and has the legal right, power and authority to
enter into this Agreement and to perform all of its obligations hereunder,
and this Agreement constitutes the legal, valid and binding obligation of
Seller, enforceable in accordance with its terms. The execution by the
undersigned officer of Seller on behalf of Seller and delivery of this
Agreement, and the performance by Seller of its obligations hereunder, have
been duly authorized by all necessary action by and on behalf of Seller and
will not conflict with, or result in a breach of, any of the terms,
covenants and provisions of any agreement or instrument to which Seller is
a party or by which it is bound, or, to the best of Seller's knowledge, any
permit, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority.
J. No consent, approval or other authorization of, or registration,
declaration or filing with, any court or governmental agency or commission
is required for the due execution, delivery and performance of this
Agreement by Seller or for the validity or enforceability thereof against
Seller.
K. There are no uncured notices, suits, orders, decrees or judgments
relative to violations of, nor to the best of Seller's knowledge, any other
violations of, (A) any easement, restrictive covenant or other matter of
record affecting the
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Land or any part thereof, or (B) any laws, statutes, ordinances, codes,
regulations, rules, orders, or other requirements of any local, state or
federal authority or any other governmental entity or agency having
jurisdiction over the Land or any part thereof, including, without
limitation, any of the foregoing affecting zoning, subdivision, building,
health, traffic, environmental, hazardous waste or flood control matters.
L. There are no other suits, actions or proceedings pending or, to the
best of Seller's knowledge, threatened, against or affecting the Land or
any of the transactions provided for herein before any court or
administrative agency or officer, and Seller is not in default with
respect to any judgment, order, writ, injunction, rule or regulation of any
court or governmental agency or office to which Seller is subject in any
way affecting the Land or any of the transactions provided for herein.
M. There are no leases, subleases, licenses or other rental agreements
or occupancy agreements (written or oral) which grant any possessory
interest in and to any portion of the Land or that otherwise give rights
with regard to the use of any portion of the Land. There are no service,
maintenance, management or similar contracts relating to or affecting the
Land.
N. Seller is familiar with the provisions of Sections 897 and 1445 of
the Internal Revenue Code (the "Code"), and
-24-
Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Code.
O. The Land has adequate, direct, indefeasible legal and practical
access of record for ingress from and egress to a paved public road.
P. The Land is in full compliance with all applicable building,
zoning, land use classification, platting and subdivision laws, rules and
regulations.
Q. Purchaser's development of the Property for the Intended Use will
not (i) require the filing of a Notice of Proposed Change pursuant to
Section 380.06, Florida Statutes, or (ii) constitute a Substantial
Deviation from the DO pursuant to Section 380.06, Florida Statutes. Seller
acknowledges and agrees that, if for any reason whatsoever, a Notice of
Proposed change is required to be filed with the Florida Department of
Community Affairs1 then (a) Seller shall be obligated, at its sole cost and
expense, to make such filing, (b) Seller shall indemnify, defend and hold
Purchaser harmless from and against any and all claims, losses,
liabilities, damages, expenses and fees, including without limitation,
reasonable attorneys' fees and expenses, incurred by Purchaser in
connection with the need for such filing, and (c) if the need for such
filing postpones the Closing Date (as the same may be extended by purchaser
under Paragraph 1.F above) for a period of more than sixty (60) days, then,
Purchaser shall have the option of terminating this Agreement,
-25-
in which event the Deposits together with all interest thereon shall be
immediately refunded to Purchaser. If the need for such filing postpones
the Closing Date (as the same may be extended by Purchaser under Paragraph
1.F. above) for a period for more than sixty (60) days, and Purchaser
elects not to terminate this Agreement in accordance with this Paragraph
10.Q, then time period in which Purchaser is obligated to commence and
complete construction of the Development under Paragraph 7 above shall be
extended for the period of time commencing on the Closing Date and
terminating on the date upon which such filing is unconditionally approved
by the Florida Department of Community Affairs.
R. There are sufficient unallocated dwelling units and sufficient
unallocated vehicle trips under the Ordinance and the DO, so that Purchaser
will have the requisite number of dwelling units and vehicle trips under
applicable law to develop the Property for Intended Use. Seller further
represents and warrants that (i) there will not be any conditions precedent
under the Ordinance or the DO to Purchaser's use of such dwelling units and
vehicle trips, and (ii) Purchaser's development of the Property for the
Intended Use will not require Purchaser to construct any off-site
infrastructure improvements under the Ordinance or the DO.
S. Purchaser represents and warrants that Purchaser is duly organized,
validly existing and in good standing under the laws of Delaware, and has
the legal right, power and
-26-
authority to enter into this Agreement and to perform all of its
obligations hereunder, and the execution and delivery of this Agreement and
the performance by Purchaser of its obligations hereunder, have been or
will be duly authorized by all necessary corporate action at the Closing
Date; and this Agreement and Purchaser's performance hereunder will not
conflict with, or result in a breach of, any of the terms, covenants and
provisions of the articles of organization or by-laws of Purchaser, as same
may have been amended or, to the best of Purchaser's knowledge, or order,
judgment, writ, injunction or decree of any court or any agreement or
instrument to which Purchaser is a party or by which it is bound.
T. Seller agrees to indemnify, defend and hold Purchaser harmless from
and against any and all claims, losses, liabilities, damages, expenses and
fees, including without limitation, reasonable attorneys' fees and
expenses1 incurred by Purchaser as the result of the failure of any of
Seller's warranties and representations contained in this Paragraph 10 or
elsewhere in this Agreement. Conversely, Purchaser agrees to indemnify and
hold Seller harmless from and against any and all claims, losses,
liabilities, damages, expenses and fees, including without limitation,
reasonable attorneys' fees and expenses, incurred by Seller as the result
of the failure of any of Purchaser's warranties and representations
contained in this Paragraph 10 or elsewhere in
-27-
this Agreement. The provisions of this Paragraph 10 shall survive the
closing of the transaction contemplated by the Agreement.
11. OTHER INFRASTRUCTURE. Purchaser understands and agrees that:
A. Xxxxxx Springs Utilities, Inc., is the supplier of potable water
and sewer to the Land. Purchaser agrees to abide by the rules, regulations
and fees of Xxxxxx Springs Utilities, Inc. In all events, Purchaser shall
be solely responsible for all water, sewer and irrigation tap-in and
connection fees, capacity reservation fees, and meter fees and will pay
same as and when due such that Purchaser (and Seller) may comply with its
obligations hereunder. Purchaser shall be responsible for all impact fees
(ANC fees).
B. Irrigation water will be provided by Resource Conservation Systems,
Inc. through a system separate and distinct from potable water and there
will be meter fees, connection fees and other charges associated therewith
(which shall be paid by Purchaser). Further, Purchaser understands and
agrees that no xxxxx may be drilled on the Land.
C. Seller represents to Purchaser that it has obtained a surface water
management permit for the stormwater management system for the Xxxxxx Bay
development. Purchaser must comply with said permit and additional
filtration and purification of stormwater
-28-
prior to such stormwater entering retention areas may be required to comply
with said permit.
12. CLOSING COSTS. Seller and Purchaser agree to the Closing costs and
recording expenses as follows:
A. Seller agrees to pay.
(1) Preparation of statutory warranty deed and recording costs
associated therewith;
(2) Special taxes or assessments for which a xxxx has been rendered
by governmental authority prior to closing of this Agreement.
Seller represents that it will not take or cause to be taken any
action to delay until after closing the assessment of any special
tax or assessment;
(3) State documentary stamps to be affixed to the warranty deed;
(4) Seller's attorney's fees; and
(5) Costs of preparing all closing documents as described in
paragraph 13 herein.
B. Purchaser agrees to pay:
(1) Cost of any Owner's or Mortgagee's Title Insurance Policy;
(2) Cost of any survey, if obtained.
(3) State documentary stamps and intangible tax on any note and
mortgage and all recording fees for any note and mortgage;
(4) Special taxes or assessments for which no xxxx has been rendered
by governmental authority prior to closing of this Agreement.
Purchaser represents that it will not take or cause to be taken
any action to delay closing until after the rendering of any xxxx
for special taxes or assessments;
(5) Purchaser's attorney's fees;
(6) A current environmental site assessment for the Property.
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C. At the closing, ad valorem real estate taxes shall be prorated
between the parties through the day of closing. Taxes shall be prorated
based on the taxes for the current year. If the closing occurs on a date
when the current year's millage is not fixed and current year's assessment
is available, taxes will be prorated based upon such assessment and the
prior year's millage. If the current year's assessment is not available,
then taxes will be prorated based on the prior year's tax. If taxes are
being adjusted on a portion of the Land which is included in a tax xxxx
covering additional lands, taxes shall be estimated based on the acreage of
the Land as compared to the acreage of all property covered by the tax
xxxx, unless such method would lead to an unjust result, in which event a
substitute just method shall be used. A tax proration based upon an
estimate shall, at the request of either party, be subsequently readjusted
upon receipt of the actual tax xxxx.
D. Any items of cost or expense not specifically allocated above shall
be paid by the party to the transaction who customarily bears such cost or
expense within the jurisdiction where the Property is located.
13. CLOSING DOCUMENTS. Conveyance shall be by warranty deeds (statutory
form) at closing and Seller shall convey good, insurable and marketable title to
the Land subject only to the Permitted Encumbrances and any other matters
expressly excepted herein. At
-30-
the closing hereunder, Seller shall deliver or cause to be delivered to
purchaser:
A. Seller's Affidavit in customary form sufficient to allow a Title
Company to delete the standard printed Schedule B exceptions, except for
taxes for the current year which are not due or payable; and
B. Certificate of Non-Foreign Status evidencing that Seller is not a
foreign person (in compliance with I.R.C. 1445 and applicable regulations);
and
C. Warranty Deed.
D. An Assignment of Seller's entire interest in any permits, licenses
or approvals affecting the Land (provided, however, in the absence of an
express assignment, delivery of the Deed will conclusively be deemed to
constitute the assignment of all of such permits, licenses and approvals to
Purchaser).
E. A certificate by Seller to the effect that all of the
representations and warranties set forth in this Agreement remain true and
correct as of the Closing Date.
F. A 1099-B Form.
G. A W-9 Form stating that no backup withholding is necessary to
disburse Seller's share, if any, of the interest earned on the Deposits.
H. A DR-219 Form.
I. An opinion of Seller's counsel addressed to Purchaser, Purchaser's
lender, and if required, Purchaser's
-31-
title insurance company and/or counsel, in form and substance reasonably
satisfactory to Purchaser's counsel, confirming Seller's capacity, right
and authority to convey the Property and to otherwise consummate the
transactions contemplated by this Agreement, and that all persons signing
on behalf of Seller have been duly authorized and directed to execute,
acknowledge and deliver all documents necessary or convenient to so convey
and consummate such transactions.
J. Such documents, certificates and instruments reasonably deemed
necessary or appropriate by Purchaser's counsel to effectuate the
transactions which are the subject of this Agreement.
The parties shall each execute and deliver all customary documents or
documents referenced herein in order to effect the closing.
14. DEFAULT, TERMINATION
A. Default by Purchaser, Termination and Remedies.
If Purchaser shall fail to fulfill its agreements herein on the
Closing Date, Seller's sole and exclusive remedy shall be to retain the
Deposits and any interest thereon as full and complete liquidated damages,
both at law and in equity, whereupon this Agreement shall terminate without
further recourse to either party; provided, however, that if Purchaser
closes and then fails to construct the Project in substantial accordance
with the plans approved pursuant to Paragraph 4,
-32-
then Seller shall have the right to seek specific performance in accordance
with such plans.
B. Default by Seller. If for any reason other than failure of Seller
to cure defects in title after diligent effort within the time periods
provided in Paragraph 8.B above, Seller fails, neglects, or refuses to
perform under this Agreement, the Purchaser may seek specific performance
or elect to receive the return of Purchaser's deposits without waiving its
right to pursue any remedies permitted by law.
15. ATTORNEY'S FEES. Seller and Purchaser agree that in the event it
becomes necessary for either party to litigate or to enforce its rights under
the terms of this Agreement, then, in that event, the successful party shall be
entitled to recover reasonable attorney's fees and the cost of such litigation,
which fees and costs shall include those incurred by reason of any appellate
proceedings.
16. RECORDING. Seller and Purchaser agree this Agreement shall not be
recorded among the public records of any county in the State of Florida.
17. SURVIVAL. All terms; conditions, covenants, and agreements contained in
this Agreement which are not fully performed at or by the Closing Date,
including, but not limited to, those contained in Paragraphs 2.C., 6, 7, 10, 11
and 19 shall survive the closing and be binding on Seller and Purchaser and any
subsequent purchaser or owner of all or a portion of the Land.
-33-
18. NOTICE. Notice shall be deemed properly given hereunder when made in
writing and hand-delivered by courier or messenger, sent by certified mail,
return receipt requested, or by Federal Express (or other nationally known
overnight courier), with sufficient postage costs prepaid thereon to carry it to
its addressed destination; and the said notices shall be addressed as follows:
For the Seller:
Xxxxxxx Xxxxxxx, President
Xxxxxx Bay Properties, Inc.
Xxxxxx Bay Executive Center
0000 Xxxxxx Xxx Xxxxxxxxx, X.X., Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxx, Esq.
Young, van Assenderp & Xxxxxxxx, P.A.
000 Xxxxxx Xxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
For the Purchaser:
Xxxxxxx X. Xxxxxx
Carematrix of Massachusetts, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxx
Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
Xxxxxxxx Pointe, Suite 500 East
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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Nothing herein contained shall be construed as prohibiting the parties
respectively from changing the place at which notice is henceforth to be given,
but no such change shall be effective unless and until it has been accomplished
by written notice given in the manner set forth in this paragraph.
19. REAL ESTATE BROKERS. Each party represents and warrants to the other
that it has not consulted, dealt or negotiated with any real estate broker,
finder, salesperson or agent in connection with the sale of the property by the
Seller to the Purchaser or any other matter associated with this Agreement other
than Xxxx X. Xxxx, Inc., and Xxxx X. Xxxxxxxx, P.A., Realtor. Xxxx X. Xxxx, Inc.
is the agent of Seller and Xxxx X. Xxxxxxxx, P.A., Realtor is the agent of
Purchaser. All brokerage fees due in connection with this transaction will be
paid by Seller pursuant to a separate agreement with such Brokers. Each party
hereby agrees to otherwise indemnify and hold harmless the other from any
losses, damages, costs, liabilities or expenses, including reasonable costs and
attorneys tees (incurred in trial, appellate or post-judgment proceedings)
related to or arising out of any breach of this representation and warranty.
20. CONDEMNATION. In the event that all or any part of the Land shall be
acquired or condemned for any public or quasi-public use or purpose, or if any
acquisition or condemnation proceedings shall be threatened or begun prior to
the closing of this transaction, Purchaser shall have the option to either
-35-
(a) terminate this Agreement, in which event the Escrow Agent shall
return to Purchaser the Deposits, together with accrued interest thereon,
and the obligations of all parties hereunder shall cease, or
(b) proceed, subject to all other terms, covenants, conditions,
representations and warranties of this Agreement, to the closing of the
transaction contemplated hereby and receive title to the Property,
receiving, however, any and all damages, awards or other compensation
arising from or attributable to such acquisition or condemnation
proceedings. Purchaser shall have the right to participate in any such
proceedings.
21. MISCELLANEOUS.
A. Purchaser shall not place or allow to be placed any lien on the
Land, prior to closing on the Land, in its endeavor to comply with the
applicable conditions of this Agreement.
B. Except as provided above, this Agreement shall not be assignable by
Purchaser without Seller's prior written consent, which may be withheld by
Seller in its sole discretion, except that this Agreement may be assigned
to an entity which controls or is controlled by Purchaser without Seller's
consent.
C. Time is of the essence of this Agreement.
-36-
D. In order for this Agreement to create binding obligations on either
party, it must be duly executed by Seller and Purchaser no later than
August 30, 1996.
E.
(i) The account in which the Deposits are held shall be
maintained by Escrow Agent until the Deposits and the interest thereon
have been delivered to Purchaser, Seller, or a court of competent
jurisdiction in accordance with this Agreement, and shall terminate on
the date of such delivery;
(ii) Escrow Agent shall account for the Deposits in accordance
with this Agreement, or in such other manner as may be directed in a
joint written notice from Seller and Purchaser directing some other
disbursement of the Deposits. If Escrow Agent receives written notice
from either Purchaser or Seller that the other party has defaulted in
the performance of its obligations under this Agreement or that any
condition to the performance of its obligations under this Agreement
or that any condition to the performance of obligations under this
Agreement has not been fulfilled within the time period stipulated,
which notice shall describe in reasonable detail such default or
non-performance, then Escrow Agent shall (A) promptly give notice to
the party alleged to have defaulted or to have failed to fulfill its
obligation of Escrow Agent's receipt of such notice from
-37-
the other party and shall enclose a copy of such notice from the other
party, and (B) subject to the provisions of Paragraph 20.E (iii) below
which shall apply if a conflict arises, on the tenth (10th) calendar
day after the giving of the notice referred to in the clause (A)
above, deliver the Deposits (or the appropriate portion thereof) and
the interest thereon to the party claiming the right to receive it.
(iii) If Escrow Agent is uncertain as to its duties or actions
hereunder, or receives instructions or a notice from Purchaser or
Seller which are in conflict with instructions or a notice from the
other party or which in the reasonable opinion of Escrow Agent, are in
conflict with any of the provisions of this Agreement, it shall be
entitled to take any of the following courses of action; (A) hold the
Deposits as provided above in this Paragraph 20.E. and decline to take
any further action until Escrow Agent receives a joint written
direction from Purchaser and Seller or an order of a court of
Competent jurisdiction directing the disbursement of the Deposits, in
which case Escrow Agent shall then disburse the Deposits in accordance
with such direction; (B) in the event of litigation between Purchaser
and Seller, deliver the Deposits and all interest thereon to the clerk
of any court in which such litigation is pending; or (C) deliver the
Deposits and all interest thereon to
-38-
a court of competent jurisdiction and commence an action for
interpleader in such court, whereupon Escrow Agent shall have no
further duty with respect to the Deposits.
(iv) Escrow Agent shall not be liable for any action taken or
omitted in good faith and may rely, and shall be protected in acting
or refraining from acting in reliance, upon an opinion of counsel and
upon any directions, instructions, notices, certificates, instruments,
requests, papers or other documents believed by it to be genuine and
to have been made, sent, signed or presented by the proper party or
parties.
(v) Seller acknowledges that Escrow Agent is counsel for
Purchaser and may continue to act as such counsel notwithstanding its
duties as Escrow Agent hereunder or any dispute or litigation arising
as to its duties as Escrow Agent.
(vi) Escrow Agent shall have no liability with regard to any duty
under this Agreement nor be responsible for the loss of any moneys
held by it except in the event of willful and intentional misconduct
on the part of Escrow Agent. Notwithstanding any other provisions of
this Agreement, Purchaser and Seller jointly indemnify and hold
harmless Escrow Agent against any losses, costs, liabilities, claims
and expenses incurred by Escrow Agent arising out of or in connection
with its services under the terms of this Agreement,
-39-
including attorneys' fees and expenses and the costs and expenses of
any interpleader action involving the Deposits or of defending itself
against any claim or liability. However, Escrow Agent will not charge
any fee for its normal services hereunder as Escrow Agent.
(vii) The terms of this Paragraph 20.E. shall survive any
termination of this Agreement or the closing of the transactions
contemplated by this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto placed their hands and
seals on the date first set forth above.
Signed, sealed and delivered
in the presence of:
Witnesses: SELLER:
XXXXXX BAY PROPERTIES, INC.
/s/ Xxxxxxxx Xxxxxxx By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------- -------------------------------
XXXXXXX X. XXXXXXX
Its: President
Xxxxxxxx Xxxxxxx Date: 9/5/96
----------------------------- -------------------------------
Witnesses: PURCHASER:
CAREMATRIX
OF MASSACHUSETTS, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxx
----------------------------- -------------------------------
Its: Vice President
-------------------------------
Xxxx X. Xxxxx Date: August 30, 1996
----------------------------- -------------------------------
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Acknowledgement by Escrow Agent: By its execution below, Escrow Agent
acknowledges receipt of the Deposits described in Paragraphs 1.A and B herein
and agrees to comply with the terms of this Agreement applicable to Escrow
Agent.
Gunster, Yoakley, Xxxxxx-
Xxxxx & Xxxxxxx, P.A.
By: /s/ [Illegible]
----------------------------
Its: Vice President
----------------------------
Enclosure. (1)
-41-
EXHIBIT "1"
Letterhead of
WILSON, MILLER, XXXXXX & PEEK, INC.
[Logo] -----------------------------------------------
XXXXXX BAY UNIT TWENTY EIGHT
(Plat Book 55, pages 9l and 92)
Xxx County, Florida
All that part of Tract "D" of XXXXXX BAY UNIT TWENTY EIGHT" according to the
plat thereof as recorded in Plat Book 55, pages 91 and 92, Public Records of Xxx
County, Florida, being more particularly described as follows:
Commencing at the southwest corner of said Tract "D";
thence along the boundary of said Tract "D"; northerly 67.12 feet along the arc
of a circular curve concave to the west, having a radius of 1812.78 feet through
a central angle of 02 (degrees) 07'18" and being subtended by a chord which
bears North 13 (degrees) 13'05" West 67.12 feet to a point on said curve end the
Point of Beginning of the parcel herein described;
thence continue along said boundary of Tract "D" in the following two (2)
described courses:
1) continuing along said curve northwesterly 133.55 feet along the arc of a
tangential circular curve concave to the west, through a central angle of
04 (degrees) 13'16" and being subtended by a chord which bears North
l6(degrees) 23'22" West 133.52 feet;
2) North 18(degrees) 30'00" West 228.61 feet; thence leaving said boundary
or Tract "D", North 89(degrees) 08'36' East 356.12 feet; thence North
00(degrees) 40'00" West 140.55 feet to said boundary of Tract "D"; thence
along said boundary of Tract "D" in the following four (4) described
courses:
1) North 89(degrees) 20'00" East 73.70 feet;
2) South 60(degrees) 57'20" East 387.95 feet;
3) southwesterly and southerly 163.61 feet along the arc of a
non-tangential circular curve concave to the southeast having a radius of
125.00 feet through a central angle of 74(degrees) 59'4l" and being
subtended by a chord which bears South 27(degrees) 3'10" West 152.18 feet;
4) Xxxxx 00(xxxxxxx) 00'0x" Xxxx 74.64 feet; thence leaving said boundary
of Tract "D", South 67(degrees) 35'19' West 59.54 feet; thence South
33(degrees) 22'32" West 49.90 feet; thence southwesterly, westerly and
northwesterly 97.30 feet along the arc of a tangential circular curve
concave to the northwest, having a radius of 65.00 feet through a central
angle of 85(degrees) 45'59" and being subtended by a chord which bears
South 76(degrees) l5'31" West 88.47 feet; thence North 60(degrees) 5l'29"
West 40.66 feet; thence North 78(degrees) 50'59" West 98.55 feet; thence
westerly 18.90 feet along the arc of a tangential circular curve concave to
the south, having a radius of 74.00 feet through a central angle of
14(degrees) 38'03" and being subtended by a chord which bears North
86(degrees)l0'00" West 18.85 feet; thence South 86(degrees) 30'58" West
82.77 feet; thence South 77(degrees) 19'13" West 202.66 feet to the Point
of Beginning of the parcel herein described
Subject to easements and restrictions of record.
Containing 5.43 acres more or less.
Bearings are based on the north line of said Tract "D" as being North'89
(degrees) 20'00" East.
WILSON, MILLER, XXXXXX & PEEK, INC.
Registered Engineers and Land Surveyors
By: /s/ Xxxxxx X. Xxxxxx Date June 11, 1996
------------------------------------
Xxxxxx X. Xxxxxx,P.S.M. #5l87
Not valid unless embossed with the Professional's seal.
Ref. 4K-401
W.O. 37l2l
EXHIBIT "B" Sheet 1 of 2
[Drawing of plan]
Sheet 2 of 2
Tract F
[Drawing of plan]
