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HomeMy WebLinkAboutKingsbury, Laverne & June Purchase and Sale Agreement - 2001 11 16PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (hereinafter "Agreement") is entered into by and between CITY OF WINTER SPRINGS, a Florida municipal corporation, whose address is 1126 East State Road 434, Winter Springs, FL 32708, (hereinafter "Buyer"), and LAVERNE W. KINGSBURY and JUNE L. KINGSBURY, husband and wife, whose address is 150 Tuskawilla Rd. Winter Springs, FL (hereinafter "Seller"). WITNESSETH: WHEREAS, Seller is the owner of real property (hereinafter "Property") situate and being in Seminole County, Florida, and legally described as follows: SEE EXHIBIT "A" ATTACHED HERETO WHEREAS, Buyer desires to purchase the Properly from Seller; NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements herein contained, and in consideration of the sums to be deposited or paid as contemplated by this Agreement, Seller agrees to sell and Buyer agrees to buy the Property upon the following terms and conditions: 1. PROPERTY AND APPURTENANCES: The Properly, as more particularly described herein above, is vacant land with a fence, concrete apron, entry gate and mailbox on the Property. The Property will be sold to Buyer by Seller and Buyer, at Buyer's expense, will relocate Seller's concrete apron, entry gate and mailbox within 60 days of closing at a location designated by Seller. Within 60 days of closing, Buyer will relocate the fence to the Seller's new property line resulting from this transaction. Buyer acknowledges that animal remains may exist on the Property which Buyer may leave in place, remove or bury at its discretion. To the extent the same exist on the Effective Date and are transferable, the Property shall be deemed to include all licenses, permits, orders, authorizations and other governmental permissions of all governmental authorities having jurisdiction thereof (whether federal, state or local) owned or held by Seller which appertain or relate to the Property and which are transferrable or assignable. 2. PURCHASE PRICE AND METHOD OF PAYMENT: The purchase price of the Property (hereinafter "Purchase Price") shall be NINE THOUSAND TWO HUNDRED AND 00/100 ($9,200.00) Dollars. The Purchase Price shall be payable in cash, cashier's check, attorney's trust check drawn on a reputable financial institution, or by wire transfer through the Federal Reserve System, at Closing as hereinafter defined. 3. FEASIBILITY DETERMINATION: Buyer shall have thirty (30) days from the Effective Date herein to determine the feasibility of Buyer's purchase of the Property . During the thirty (30) day Feasibility Determination Period, Buyer may undertake, at Buyer's expense, such physical inspections, tests and other investigations as may be deemed necessary by the Buyer in order for Buyer to evaluate the feasibility of the Buyer's purchase of the Property . For purposes of undertaking physical inspections, tests or investigations of the Property ,Seller hereby grants to Buyer, their agents, and professionals engaged by Buyer, the right to enter upon the Property and any part thereof during the Feasibility Determination Period. Page i Said right of entry is conditioned upon (a) the Buyer giving Seller reasonable notice, (b) such entry being during normal business hours, and (c) such presence shall not disrupt normal business operations. The presence on the Property of such personnel shall only be for the purpose of conducting such inspections, tests or investigations, and no other personal activity shall be permitted. Any alterations or changes to the Property that are a direct result of the inspecting, testing and investigations will be repaired and replaced by Buyer if a closing does not occur. To the extent permitted by law, Buyer shall indemnify Seller against any loss or damages to the Property arising out, of or in connection with, any inspection, testing or investigation performed by Buyer on the Property. The Buyer's indemnification of the Seller will not include any loss or damage due to pre-existing conditions, problems or deficiencies of the Property that are discovered through the inspection, testing and investigation authorized herein. The decision as to whether it is feasible to purchase the Property shall be at the sole discretion of the Buyer. If the Buyer determines that it is not feasible to purchase the Property, then Buyer may terminate this Agreement without penalty. This provision shall not affect any other rights of the Buyer under this Agreement including, but not limited to the right to inspect the title of the Property. 4. TITLE EVIDENCE: Within five (5) days after the Effective Date, as hereinafter defined, Buyer shall, at Buyer's expense, obtain a Title Insurance Commitment (hereinafter "Commitment") issued by a company (hereinafter "Company") reasonably acceptable to Buyer and/or Buyer's Counsel, with the fee owner's title insurance policy premium to be paid by Buyer. The Commitment shall commit the Company to issue to Buyer, upon recording of the deed conveying title to the Property to Buyer, a fee owner's policy of title insurance, (ALTA Owner's Policy 10-17-92, Florida Modified), in the amount of the Purchase Price of the Property, subject only to those exceptions reasonably acceptable to Buyer's Counsel and the so called standard exceptions contained in the standard ALTA Form of owner's title insurance commitment. The Commitment shall provide that the applicable standard exceptions will be deleted by the Company upon the furnishing of an ownership and lien affidavit in form required by Company (and Seller agrees to furnish such Affidavit as part of the Closing). Buyer shall have five (5) days from the date of their receipt of the Commitment to examine the same and to notify Seller in writing specifying any defects or reasonable objections to Seller's title. Seller shall have twenty (20) days to remove such defects or reasonable objections, but without obligation to bring suits therefor, and if Seller is unsuccessful in removing same by Closing, Buyer shall have only the options of (a) waiving such defects or reasonable objections and accepting title as is, or (b) terminating this Agreement and obtaining a refund of the Deposit (together with any interest earned thereon). Seller agrees that it will, if title defects or objections are raised by Buyer, use diligent and best efforts to correct such defects or objections to title within the time period provided therefor. 5. RESTRICTIONS, EASEMENTS AND LIMITATIONS. The Buyer shall take title subject to: zoning, restrictions, prohibitions and other requirements imposed by governmental authority, restrictions and matters appearing on the plat or otherwise common to the subdivision, public utility easements of record, taxes for subsequent years; provided none of the same prevent use of the Property for Buyer's governmental purposes. 6. SURVEY: Buyer, at Buyer's expense, within the Feasibility Determination Period, may have the Property surveyed and certified by a registered Florida surveyor. If survey shows encroachment on the Property or that improvements located on the Property encroach on set back lines, easements, lands ofothers or violate any restrictions, covenants or applicable government regulation, the same shall constitute a title defect, and shall be handled in accordance with Paragraph 4 of this Agreement. I'agc 2 7. SELLER REPRESENTATIONS: Seller hereby represents to Buyer to the best of their knowledge and belief as follows: (a) That Seller has good, marketable, and indefeasible title to, and is in possession of, the Property, free and clear of all liens, security interests and encumbrances, excluding only those (i) which will be satisfied and released at Closing, (ii) to which the Buyer's title shall be subject as otherwise provided in this Agreement, (iii) liens for taxes not yet due and payable, and (iv) statutory liens not yet delinquent. (b) That there are no facts known to Seller materially affecting the value of the Property which are not readily observable by Buyer or which have not been disclosed to Buyer. (c) That there is no condemnation, eminent domain, zoning or other land use proceeding instituted, or to the best of Seller's knowledge, planned to be instituted, that could detrimentally affect the Property, any part thereof or the use thereof. (d) That there is ingress and egress to the Property sufficient for its current use. (e) That there is no litigation or proceeding pending or threatened against or relating to the Property arising by, through or under Seller, and Seller does not know or have reasonable grounds to know of any basis for such action, nor are there any special assessments of any nature with respect to the Property or any portion thereof, nor has Seller received any notice of any special assessment being contemplated. (f) That Seller has full power and authority to enter into and perform this Agreement in accordance with its terms, and the completion of this transaction will not violate any law, regulation or agreement affecting Seller. (g) That there are no: (i) pending litigation or disputes involving the location of the boundaries of any part of the Property; and/or (ii) physical interruptions or obstructions to physical access to any part of the Property. (h) That there are no hazardous materials located on the Property, as the term "hazardous materials" is defined by federal and state law. This paragraph shall survive closing. 8. POSSESSION: Seller shall deliver possession of the Properly to Buyer at the time of Closing. 9. CLOSING: (a) Closing Date: The closing of this Agreement, and the transfer of title and possession of the Property, shall occur within thirty (30) days ofthe Effective Date (hereinafter "Closing Date") unless otherwise extended by the terms herein. Closing shall be held in the county where the Property is located at the office of the attorney or other closing agent designated by Buyer. (b) Conveyance: Seller shall convey to Buyer marketable title to the Property by Statutory Warranty Deed; title to the tangible personal property by Bill of Sale; and transfer of licenses, permits, orders, authorizations and other governmental permissions by Assignment. Pagc 3 (c) Documents For Closine: Buyer shall furnish the Closing Documents including, but not limited to, the Deed, Bill of Sale, Assignments, Ownership and Lien Affidavit, Certificate ofNon- Foreign Status, satisfaction and release of liens or mortgages, and Closing Statement. (d) Allocation of Expenses: Buyer shall be responsible for atl closing costs unless except as otherwise provided for in the Agreement. (e) No Prorations: Real property taxes, special assessments and ad valorem taxes for the year of closing and for prior years shall be paid by Seller. This paragraph shall survive closing. (f) FIRPTA Acknowledgment: At Closing, the Seller shall execute and deliver to Buyer two (2) original counterparts of the Certification of Non-Foreign Status in form reasonably satisfactory to Buyer. In the event (a) Seller does not so execute and deliver to Buyer such Certification ofNon-Foreign Status, or (b) such Certification ofNon-Foreign Status in not fully and properly completed and executed as of the Closing Date, or (c) Buyer is not entitled to rely upon such Certification, then, in any of such events, Buyer shall withhold ten percent (10%) of the Purchase Price and pay the withheld amount to the Internal Revenue Service pursuant to Internal Revenue Code Section 1445. Any amount thus withheld by Buyers shall be deemed to have been paid by Buyer in cash at Closing as part of Buyer's obligation to pay the Purchase Price hereunder. (g) Ownership and Lien Affidavit: Seller shall furnish to Buyer at the time of closing an affidavit attesting to the absence, unless otherwise provided for herein, of any Notices to Owner or Claims of Lien of potential lienors known to Seller and further attesting to the unquestioned ownership by Seller of the Property and further attesting that there have been no improvements to the Property for 90 days immediately preceding the Closing Date for which payment has not been made in full, or for which payment has not been secured or provided for, all in form acceptable to Buyer and Company. If Property has been improved or repaired within 90 days immediately preceding the Closing Date, Seller shall deliver releases or waivers of construction liens executed by all general contractors, subcontractors, suppliers, and materialmen in addition to Seller's lien affidavit setting forth the names of all such general contractors, subcontractors, suppliers and materialmen and further affirming that all charges for improvements or repairs which could serve as a basis for a construction lien or a claim for damages have been paid or will be paid at closing of this Agreement. (h) Proceeds of Sale and Closing Procedure: Upon clearance of funds, the deed of conveyance and other closing documents (hereinafter "Closing Documents"), each duly executed, shall be delivered to the Company or authorized agent of Company. Following examination by the Company or its agent of the public records of Seminole County, Florida, from the effective date of the Commitment up to Closing Date (hereinafter "Gap Period") and delivery to Buyer of the Commitment marked in order to show compliance with all conditions of Closing and marked to insure the Gap Period, the net sales proceeds shall be promptly disbursed to Seller by Company or the authorized agent of Company. (i) Further Acts, etc.: At the closing and at all times thereafter, Seller and Buyer agree to execute and deliver such other and further instruments and to take such further actions as either of them or their counsel may reasonably request of the other in order to fully implement the terms of this Agreement and the closing thereof. This paragraph shall survive closing. Page 4 10. DEFAULTS: (a) Notice of Default: No default as to any provision of this Agreement shall be claimed or charged by either party hereto against the other until notice thereof has been given to the defaulting party in writing, and such default remains uncured for a period of five (5) days after the defaulting party's receipt of such notice. Notwithstanding the above, the Closing Date shall not be changed, delayed, postponed or extended by this requirement for notice of default. (b) Default by Buffer: If Buyer defaults on its obligations to purchase under this Agreement, without fault on the part of the Seller, Seller may terminate this Agreement in full and final settlement of all claims Seller may have against Buyer for breech of this Agreement or alternatively, Seller may seek specific performance. (c) Default b~: If Seller defaults on its obligations to purchase under this Agreement, without fault on the part of the Buyer, Buyer may terminate this Agreement in full and final settlement of all claims Buyer may have against Seller for breech of this Agreement or alternatively, Buyer may seek specific performance. 11. BROKER'S COMMISSION: Each party hereto represents and warrants unto the other party hereto that there are no brokers, real estate sales persons or agent involved with respect to the transaction contemplated herein and that there are no fees, or commissions due as a result of their respective execution of this Agreement or which will be due as a result of the closing as contemplated hereby by virtue of their respective acts, inactions, conduct or otherwise. Each party hereto does hereby agree to indemnify and hold the other harmless from any breach of their respective representations and warranties as set forth in this Paragraph. The provisions ofthis Paragraph shall survive the Closing. 12. RISK OF LOSS: If the Property is damaged by fire or other casualty before closing and cost of restoration does not exceed 3% of the assessed valuation of the Property so damaged, cost of restoration shall be an obligation of the Seller and closing shall proceed pursuant to the terms ofthis Contract with restoration costs escrowed at closing. If the cost of restoration exceeds 3% of the assessed valuation of the Property so damaged, Buyer shall have the option of either taking the Property as is, together with either the 3% or any insurance proceeds payable by virtue of such loss or damage, or of canceling this Contract and receiving return of the deposit(s). 13. TIME OF THE ESSENCE: Time, and timely performance, is of the essence of this Agreement and of the covenants and provisions hereunder. 14. TIME: Time periods herein of less than 6 days shall in the computation exclude Saturdays, Sundays and state or national legal holidays, and any time period provided for herein which shall end on Saturday, Sunday or a legal holiday shall extend to 5:00 p.m. of the next business day. 15. EFFECTIVE DATE AND TIME FOR ACCEPTANCE: The date ofthis Agreement ("Effective Date") shall be that date upon which the last one of the Buyer and Seller has signed this Agreement. 16. ASSIGNMENT: This Agreement may not be assigned except upon the prior written consent of Seller. -~~~~ s 17. MISCELLANEOUS: (a) Radon Gas: Pursuant to Fla. Stat. Sec. 404.056(8), 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 building in Florida. (b) Binding? Effect; Successors and Assigns: This Agreement shall be binding upon and inure to the benefit of Seller, Buyer and their permitted successors and assigns, if any. (c) Ca tions: The captions for each paragraph orsub-paragraph ofthis Agreement are for convenience and reference only and in no way define, describe, extend, or limit the scope or intent ofthis Agreement, or the intent of any provision hereof. (d) Severability: If any provision ofthis Agreement, the deletion of which would not materially adversely affect the material benefits receivable by any party hereunder or substantially increase the burden of any party hereto, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder ofthis Agreement. (e) Execution of Documents: Each party hereto covenants and agrees that they will at any time and from time to time do such acts and execute, acknowledge and deliver such documents, including corrective instruments, reasonably requested by the Buyer, the parties hereto, or their counsel, necessary to carry out fully and effectuate the purchase and sale herein contemplated and to convey good, marketable and insurable title to the Property and all parts thereof. (f) Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be, and shall be taken to be, an original, and all collectively deemed one instrument. (g) Facsimile: Telephonically transmitted facsimile copies of this Agreement, and any signatures thereon, shall be considered for all purposes as originals. (h) Litigation and Attorney's Fees: In the event it shall be necessary for either Party to this Agreement to bring suit to enforce any provision hereof (before or after Closing) or for damages on account of any breach of this Agreement, the prevailing party shall be entitled to recover from the other, in addition to any damages or other relief granted as a result of such litigation, all costs and expenses of such litigation and reasonable attorney's fees (including attorney's fees and costs of appeals) as fixed by a court of competent jurisdiction. (i) Entire Agreement; Amendments: This Agreement contains the entire and sole understanding between the parties hereto relative to the purchase and sale of the Property and it may only be amended or modified by an agreement in writing executed by Buyer and Seller with the same formalities as this Agreement. (j) Notices: All notices and correspondence shall be sent or delivered by registered or certified mail to the parties hereto, return receipt requested, with copies forwarded to their respective attorneys, at the addresses set forth below or at such other addresses as the parties hereto shall designate to each other in writing: Pagc 6 (i) if to Seller, to: Laverne W. Kingsbury and June L. Kingsbury 150 Tuskawilla Road Winter prangs, Phone: 407-327 -1916 Fax: 407- - (ii) if to Buyer, to: City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Phone: 407-327-5957 Fax: 407-327-6686 with copies to: Anthony A. Garganese, Esq., City Attorney Brown, Ward, Salzman & Weiss, P.A. P O Box 2873 Orlando, FL 32802-2873 Phone: 407-425-9566 Fax: 407-425-9596 Any notice or demand so given, delivered or made by United States Mail shall be deemed so given, delivered or made three (3) days after the same is deposited in the United State mail registered or certified, return receipt requested, addressed as above provided, with postage thereon prepaid. Any such notice, demand or document not given, delivered or made by registered or certified mail as aforesaid shall be deemed to be given, delivered or made upon receipt of the same by the party to whom the same is to be given, delivered or made. (k) Interpretation: This Agreement has been submitted to the scrutiny of each party hereto and each party has had opportunity to have it reviewed by legal counsel. This Agreement shall be given fair and reasonable interpretation in accordance with the words used herein without consideration or weight being given to its having been drafted by either party hereto or their respective counsel. (1) Applicable Law: This Agreement is to be construed according to the laws of the State of Florida. (m) Non-Waiver: No covenant, term, or condition, (or the breach thereof), shall be deemed waived, except by written consent of the party against whom the waiver is claimed. A waiver of any covenant, term, or condition (or breach thereof) shall not be deemed to be a waiver of any other covenant, term or condition (or breach thereof). (n) Terminology: Whenever used herein, the terms "Buyer" and "Seller" shall be construed in the singular or plural as the context may require or admit and shall be further construed to include the agents of the Buyer and Seller. (o) No Recording: Neither this Agreement, nor any notice of it, shall be recorded in any public records. ~~~~ ~ (p) Typewritten or Handwritten Provisions: Typewritten or handwritten provisions, either as additional terms and conditions or alterations to existing terms and conditions, shall control all printed provisions in conflict with them. 18. Condition Precedent. Approval ofthis Agreement by the City Commission of Winter Springs shall be a condition precedent to the parties obligations under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed on the dates accompanied by their respective executions. ~.~~ ~i , ~ LAVERNE W. KINGSBUR ,SEL Date: ~~~~. ~ i DUNE L. KINGSBURY, SEL ER Date: /f ~~ CITY OF WINTER SPRINGS, a Florida municipal corporation, BUYER By: Ronald W. McLemore City Manager Date: //// !o /c ~. ~---~ Page 8 ~aRCEL a (KINGSBUR r ACQi.`IS1ITON) ESCR1? 7'ON. That port of the Unnumbered Cot in Block B : D.R. A/ITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE ,IESSUP os recorded in Ptat Book 1, Page 5 0/ the Public Records of Seminole County, Florida, more particularly described os follows: Commence at fhe Southeast corner of Lot 30 Block 6 ; D.R. MJTCHELL'S SURVEY OF THE LEVY CRANT ON LAKE ,iESSUP sold point being the intersection of the West Right of Way line of Tuscowillo Rood (formuty Brantley Avenue) and the North Right of Way line of First Street (a 30 foot unopened Right of Woy); thence run S 3004'S5~ W a distance of 30.61 feet to the ~mtersection of the Nest Right o/ Woy line of Tuscawrlla Rood and the South Right o/ Wax line of F ~rst Street said intersection being the POINT OF BEGINN/NG; thence continue S 30'04 55" `V along the West Right of Woy tine of Tuscaw~lla Road a distance of 80.89 feet fo the point of cusp of a curve concave Northwesterly hov-ng o radius of 15.00. /eet and o chord bearing of N 1 J~4'34" E: thence run Northeasterly along the arc of soil curve fhrovgh o centr'vl angle of 3670'43" for on arc distance of 9.52 fee! to o point , of tangency, thence N 06'15'47" W a distance of 59.58 feet to the point of curvature of a curve concave Southwesterly having o radius of 15.00 feet a chord bearing of N 3379'40" W.• thence run Northwesterly long the arc oI said curve through o central angle of 5477'44" for on arc distance of 14.26 feet to o point of tangency, thence N 60 43'32" W o distance of 40.41 feet to fhe South Right of Way lire of the ~roremen.honed First Streef; thence S 7±'?4'05" E along said South Right of Way line for a ,ilstar,ce ~% 9~.Td feet: to the r~oint of Beginning. 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M F~ ° C~ 0 ° ~'~ ~~ ~ GANAGfj< J n4 y~-5 JOO~yy~ er sr' i ~~.G Jo , ~i . `y :~ ~. v ~S ~~ ~ r • z ~. i ~ ~~ ~ • C ^~J i cz ~ ~ . `~~ PARCEL 8 ~ s~ 3 i ~,~ ~ ~~ G G ~ g r ~ jL "~ - 7AY :0/ .6 •10-J?-SAF ^JPG::-:i;OC ~n•6sx r r C c / ~ O ~ ~ ' ~ 1 t t . l •.fwrr. .• ANp L/N ; ~ . ~?~ / 9 ~ ~ ,~ t ti~ ',' ~ ~ `S ~ I - ! t ~ ~ • 3 tf~ _ • ' ~ ~ . :.J r ," •a ~ ~~~~ r • ~ /: '~. r'. .,, ~~~~ :• i EXHIBIT "A" / -DESCRIPTION OF REAL PROPERTY n r r-~ n m~nr~ nn m~nr\ j >' ~ ~ ~ ~ ~ ,?i / ~_ MEMORANDUM TO: Anthony Gargan e, City Attorney FROM: Charles C. a ngton, Community Development Director DATE: November , 2001 RE: Kingbury Purchase & Sales Agreement Enclosed is the fully executed original contract for the Kingsbury 0.6471 acre tract. Please order and obtain a title insurance commitment. We have used First American Title in the past. Contact Jim Dyer (407) 740-7131. cc: Ronald McLemore, City Manager Kip Lockcuff, Public WorkslUtility Director