HomeMy WebLinkAboutVII (C) Discussion/ Action re: Purchase Agreement with Base Operations Agenda 6-2-9E
Item VII C
FOLEY & LARDNER
ATTORNEYS AT LAW
CHICAGO POST OFFICE BOX 2193 SACRAMENTO
JACKSONVILLE ORLANDO, FLORIDA 32802-2193 SAN DIEGO
LOS ANGELES 111 NORTH ORANGE AVENUE,SUITE 1600 SAN FRANCISCO
MADISON ORLANDO, FLORIDA 32801-2386 TALLAHASSEE
MILWAUKEE TELEPHONE(407)423-7656 TAMPA
ORLANDO FACSIMILE(407)648-1743 WASHINGTON D.C.
WEST PALM BEACH
MEMORANDUM
TO: The Honorable Mayor and City Commissioners of
the City of Ocoee
FROM: Paul E. Rosenthal, Esq. , City Attorney,
DATE: May 28, 1998
RE: Proposed Purchase Agreement between Base Operations Mgmt .
Services, Inc. , as Seller and City of Ocoee, as Buyer
ISSUE:
Should the City Commission (a) approve a proposed Purchase
Agreement with Base Operations Mgmt . Services, Inc. to purchase 12
platted lots located east of Bluford Avenue between McKey Street
and Oakland Street as depicted on the sketch attached hereto, and
(b) in connection with such purchase lease 10 of the 12 platted
lots back to Base Mgmt . for a three year term?
DISCUSSION:
Base Operations Mgmt . Services, Inc. ("Seller") has proposed
to sell to the City 12 platted lots located east of Bluford Avenue
between McKey Street and Oakland Street as depicted on the attached
sketch. The proposed purchase price is $300, 000 which is $30, 000
over the appraised value as set forth in several appraisals
prepared by Charles W. Efurd, State Certified Residential
Appraiser, which were submitted to the City by the Seller. A
summary of the appraisals is attached. Mr. Shapiro included in the
recent budget amendments, as approved by the City Commission, the
sum of $100, 000 to be applied towards the purchase of these lots.
Based upon the appropriation of these funds, we have prepared a
proposed Purchase Agreement which is attached hereto and has been
executed by the Seller. Also attached is a Disclosure of
Beneficial Interest form.
ESTABLISHED 1 8 4 2
A MEMBER OF GLOBALEX WITH MEMBER OFFICES IN BERLIN,BRUSSELS,DRESDEN, FRANKFURT,LONDON,SINGAPORE,STOCKHOLM AND STUTTGART
As indicated above, the proposed Purchase Price exceeds the
appraised value by $30, 000, or approximately 11%. The Seller' s
justification for being paid an amount in excess of the appraisal
is its belief that there is additional value in the land based upon
the ability to assemble Lots 7 and 23 with the adjacent Lots 1
through 6 and develop the assembled lots for commercial purposes .
The appraisals of Lots 7 and 23 are based upon the existing
residential zoning and do not take into account any assemblage
value or potential of rezoning for commercial purposes . In
evaluating the proposed Purchase Price the City staff took into
account this argument regarding value, the assemblage benefit to be
derived by the City, and the willingness of the Seller to accept an
unsecured promissory note for 2/3rds of the Purchase Price.
Further, the actual cost to the City to acquire the property
through a condemnation proceeding would likely be greater than the
total cost of acquiring the property on a voluntary sale basis . On
balance, the City staff concluded that the proposed Purchase Price
was reasonable under the circumstances .
Additional highlights of the proposed Purchase Agreement are
as follows :
(1) $100, 000 of the Purchase Price is to be paid in cash at
closing. The balance is to be paid by execution of an unsecured
promissory note in the amount of $200, 000 which would be payable in
three equal annual principal payments . Accrued interest would be
payable on an annual basis. The interest rate would be 8% . Under
the terms of the Charter, any borrowing in an amount in excess of
$100, 000 must be approved at an advertised public hearing.
Accordingly, the Purchase Agreement calls for a public hearing to
be held on June 16, 1998 .
(2) The City would have the right to terminate the Purchase
Agreement under the following circumstances : (i) title cannot be
delivered as required by the Purchase Agreement; (ii) title and
survey objections cannot be cured; (iii) active termite infestation
is found; (iv) the City receives an unacceptable environmental
report; or (v) the City obtains a review appraisal which values the
property at an amount below $270, 000 . Since the appraisals will be
certified to the City, we do not currently anticipate obtaining a
review appraisal .
(3) Title insurance would be provided by the Seller at the
Seller' s expense. A survey would be obtained by the City at the
City' s expense .
(4) Closing would occur on June 17, 1998, unless extended by
other provisions of the Purchase Agreement .
(5) The Seller will pay all closing costs except for
recording fees which would be paid by the City. The City would
also be responsible for the preparation of all closing documents .
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(6) No brokers are involved in this transaction.
It is the recommendation of the City Manager that the property be
purchased as proposed in the Purchase Agreement .
As part of our negotiations, the Seller has agreed to lease
back from the City for a 3-year term all of the property except for
Lots 16 and 17 which are adjacent to the Women' s Club. Rental
payments to the City would be $800 per month and would total
$28, 800 during the term of the lease. The Seller would have the
responsibility to maintain the leased property during the term of
the lease. The City would have a limited right to utilize the
leased property, except for buildings and structures, for public
parking and other activities related to events and programs being
held at the Ocoee Municipal Complex. A formal lease agreement
would be executed at closing. The lease is cancelable on 90-days
notice from the City should there be an earlier need for the
property.
No public hearing on the lease is required since it is for a
term of less than 5 years . The City Charter prohibits the lease of
real property for a rental below the City' s estimate of the fair
rental value except in cases where specific good cause is shown.
The City has not retained an appraiser to estimate the fair rental
values and it is possible that $800 per month could be below the
fair rental value. The staff believes this rental amount is
reasonable in light of the specific lease terms, the uncertainty of
finding a tenant should the City seek competitive bids, the
leaseback to the Seller, and the agreement of the Seller to
continue to maintain the leased property during the term of the
lease. The City Commission may find the foregoing constitutes
specific good cause for the rental amount .
RECOMMENDATION:
It respectfully is recommended that the City Commission (1)
approve the Purchase Agreement between Base Operations Mgmt .
Services, Inc. , as Seller, and the City of Ocoee, as Buyer, and
authorize execution thereof by the Mayor and City Clerk and further
authorize the Mayor and City Clerk to execute all documents
necessary to close the transaction pursuant to the Purchase
Agreement; and (2) find that there is specific good cause shown to
lease back the property, except for Lots 16 and 17, to Base
Operations Mgmt Services, Inc . at the rate of $800 per month for
the reasons set forth in the staff report and authorize the Mayor
and City Clerk to execute all documents necessary to consummate a
lease.
PER/ww
enclosures
A:\BASEOP.MEM I 5r18/981 DISK I PER:jed
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SUMMARY OF APPRAISAL REPORTS
PREPARED BY CHARLES W. EFURD, SCRA
Estimated Fair
Lot Size Zoning Market Value
1-6 30, 000 SF C-2 $ 158, 000
7 7, 650 SF R1A 15, 000
9&10 15, 300 SF R1A 57, 000
16&17 11, 897 SF R1A 25, 000
23 7, 650 SF R1A 15, 000
TOTALS 72 , 497 SF $ 270, 000
NOTE: All parcels are improved except for Lots 16 and 17 .
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made and entered into
this day of , 1998, by and between BASE OPERATIONS MGMT.
SERVICES, INC., a Florida corporation, whose mailing address is 2. East McKey Street,
Ocoee, Florida 34761, Attention: Ben Griffin("Seller") and THE CITY OF OCOEE, a Florida
municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida
34761, Attention: City Manager ("Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of fee simple title to certain platted lots situated
in the City of Ocoee, Orange County, Florida, as more particularly described in Exhibit "A"
attached hereto and by this reference made a part hereof, together with all improvements,
easements, rights-of-way, appurtenances, licenses, and all other estates, rights, titles, interests,
privileges, and liberties in any way belonging, relating or appertaining thereto (the "Property");
and
WHEREAS, Buyer desires to purchase the Property from Seller and Seller desires
to sell the Property to Buyer pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto warrant and agree as follows:
1. '1'HE PURCHASE. Seller agrees to sell and Buyer agrees to purchase the
Property. Seller shall convey to Buyer marketable, fee simple title to the Property by Warranty
Deed free and clear of all liens, encumbrances, exceptions or qualifications whatsoever; save
and except only for(a) local zoning ordinances and regulations; and(b) the Permitted Exceptions
(as defined in Paragraph 3 of this Agreement).
2. PURCHASE PRICE. The purchase price for the Property shall be
THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) (the "Purchase
Price"). The Purchase Price shall be payable as follows;
(i) the sum of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) by City of Ocoee or attorney's trust
account check at closing; and
(ii) an unsecured promissory note in accordance with Paragraph 11
hereof with a original principal amount equal to the remaining
amount of the Purchase Price after credits, adjustments and
prorations as provided in this Agreement.
3. APPRAISAL. Seller has obtained appraisals of the Property (the
"Appraisals") prepared by Charles W. Efurd, State Certified Residential Appraiser (the
"Appraiser"). Prior to the Closing the Seller shall deliver to Buyer, at no cost to Buyer, a letter
from the Appraiser addressed to the City to effect that: (i) the City is authorized to utilize and
rely upon the Appraisals: and (ii) the Appraisals have been independently prepared without any
direction or special instruction from the Seller. The Buyer, at its option, may elect to obtain
a review appraisal of the Appraisals. In the event any such review appraisal indicates a fair
market value of the Property less than that set forth in the Appraisals (i.e., less than
$270,000.00), then Buyer, at its option, may terminate this Agreement at any time prior to
Closing.
4. TITLE MATTERS.
A. Seller shall, at Seller's sole expense, deliver to Buyer, within
fourteen (14) days from the Effective Date, a current standard Florida form of commitment for
an owner's policy of title insurance (the "Title Commitment"), issued through a title insurance
company acceptable to Buyer (the "Title Company"), describing the Property, listing Buyer as
the prospective named insured showing Seller as the fee simple title holder of the Property, and
showing the Purchase Price as the policy amount. At such time as Seller causes the Title
Commitment to be furnished to Buyer, Seller shall cause to be furnished to Buyer legible true
copies of all instruments referred to in the Title Commitment as conditions or exceptions to title
to the Property.
B. Buyer shall have a period(the "Review Period")ending twenty (20)
days after the date on which Buyer receives the Title Commitment and all instruments referred
to therein, in which to notify Seller of any objections Buyer has to any matters shown or
referred to in the Title Commitment. Any title encumbrance or exception which is set forth in
the Title Commitment and to which Buyer does not object within the Review Period shall be
deemed to be permitted exceptions to the status of Seller's title (the "Permitted Exceptions").
With regard to title matters which Buyer objects within the Review Period, Seller shall have a
period of thirty (30) days from the date of Buyer's notice in which to cure objections (the "Title
Curative Period") and shall use reasonable diligence to cure such objections during that period.
If Seller is unable to cure the title objections within that Title Curative Period, then Buyer may,
at its option, waive the objections not cured and proceed to Closing or terminate this Agreement
by written notice to Seller, or elected to extend the Title Curative Period for up to an additional
thirty (30) days.
C. The Title Commitment shall be endorsed or "marked up" at Closing
to delete the "gap" and show title in Buyer as required herein. At Closing, Seller shall provide
the Title Company with such affidavit as is necessary to delete standard exceptions for parties
in possession, unfiled mechanics' liens and unrecorded leases. In the event the exception for
parties in possession cannot be deleted, then the Title Commitment shall be marked-up to limit
the exception to specific parties in possession without written leases whose right to continued
occupancy may be terminated on 30-days notice. Seller will cause the Title Company to limit
the survey exception to matters actually shown on the Survey described herein. The Title Policy
to be issued by the Title Company shall be delivered to Buyer promptly after Closing, subject
only to the Permitted Exceptions and any other title exceptions or conditions of title accepted
by Buyer in accordance with the terms hereof and other matters expressly set forth in this
Agreement. Notwithstanding any provision contained herein to the contrary, the Title Policy
shall not have any exceptions for liens against the Property.
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5. SURVEY. Within thirty (30) days from the Effective Date of this
Agreement, Buyer may obtain, at Buyer's sole cost and expense, a boundary survey of the
Property (the "Survey") showing the location of all the boundaries, encroachments, easements,
and improvements thereon. The Survey shall be prepared by a land surveyor duly licensed and
registered as such in the State of Florida, and shall be certified by such surveyor to Buyer, Seller
and the Title Company issuing title insurance. Buyer shall notify Seller in writing within ten
(10) days of the date of its receipt of the Survey and Title Commitment specifying those matters
shown on the Survey which adversely affect the Property and the same shall thereupon be
deemed to be title defects under Section 4 of this Agreement. Seller shall have a period of thirty
(30) days from the date of Buyer's notice, in which to cure such survey objections (the "Survey
Curative Period") and shall use reasonable diligence to cure such objections during that period.
If Seller is unable to cure such objections within the Survey Curative Period, Buyer may, at its
option, waive the objections not cured and proceed to Closing, or terminate this Agreement by
written notice to Seller, or elect to extend the Survey Curative Period for up to an additional
thirty (30) days.
6. LIENS. At Closing, Seller shall furnish to Buyer an affidavit attesting to
the absence of any financing statements, pending litigation, claims of liens, tax liens, liens,
judgments or potential lienors which may affect the Property and further attesting that there have
been no improvements or repairs to the Property for ninety (90) days immediately preceding the
date of the Closing. If the Property has been improved, or repaired within that time period,
Seller shall deliver releases or waivers of construction liens executed by all general contractors,
subcontractors, suppliers, and materialmen that performed services or provided supplies to
and/or for the Property. Seller's lien affidavit shall also set forth the names of all such general
contractors, subcontractors, suppliers and materialmen and shall affirm that all charges for
improvements or repairs which could serve as a basis for mechanic's lien or a claim for damages
have been paid, or will be paid at or prior to Closing.
7. ENVIRONMENTAL SITE ASSESSMENT. Buyer may elect to obtain,
at its sole cost and expense, an environmental site assessment of the Property. If Buyer so
elects, it shall use the services of a competent, professional consultant with expertise in the
environmental site assessment process to determine the existence, if any, of Hazardous Materials
on the Property, or if there are any violations of Environmental Laws on the Property. For
purposes of this Agreement "Hazardous Materials" shall mean any hazardous or toxic substance,
material, compound, or waste of any kind or any other substance which is regulated by any
Environmental Law (as defined in Paragraph 8 of this Agreement). If Buyer, in its sole
discretion, is not satisfied with the results of any such environmental site assessment then Buyer
may elect to terminate this Agreement by written notice to Seller delivered prior to Closing or
may pursue its remedies under Paragraph 8 below.
8. HAZARDOUS MATERIALS.
A. In the event that the environmental site assessment provided for in
Paragraph 7 above confirms the presence of Hazardous Materials on the Property, Buyer, at its
sole option, may elect to terminate this Agreement by providing written notice of such
termination to Seller prior to the Closing and no party shall thereafter have any further
obligations under this Agreement. Should Buyer elect not to terminate this Agreement, then
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Seller shall, at Seller's sole cost and expense, and prior to the Closing, promptly commence and
diligently pursue any assessment, clean up, remediation, removal, repair and monitoring of the
Property necessary to bring the Property into full compliance with any and all applicable federal,
state or local laws, statutes, ordinances, rules, regulations or other governmental restrictions
regulating, relating to, or imposing liability or standards of conduct concerning Hazardous
Materials ("Environmental Laws"). However, should the estimated cost of clean up of the
Hazardous Materials exceed a sum which is equal to $10,000.00, then Seller may elect to
terminate this Agreement by providing written notice of such termination to Buyer and thereafter
no party shall have any further obligations under this Agreement. In the event that Hazardous
Materials placed on the Property prior to Closing are discovered after Closing, Seller shall
remain obligated hereunder, with such obligation to survive the Closing, delivery and recording
of the deed and Seller shall diligently pursue and accomplish the clean up of the Hazardous
Materials in a manner consistent with all applicable Environmental Laws, and at Seller's sole
cost and expense.
B. Further, in the event that no party elects to terminate this
Agreement as provided above, Seller shall indemnify and save harmless and defend Buyer, its
officers, elected officials, servants, agents and employees from and against any and all claims,
suits, actions, damages, liabilities, expenditures or causes of action of any kind arising from the
Hazardous Materials placed on the Property prior to Closing whether the Hazardous Materials
are discovered prior to or after Closing. The foregoing indemnification shall include, without
limitation, Seller's full payment of the costs and expenses incurred in the defense of Buyer
against any legal action, claim or proceeding instituted by any person against Buyer as a result
of any claim, suit, or cause of action for injuries to body, life, limb or property for which the
Hazardous Materials placed on'the Property prior to Closing are alleged to be a contributing
legal cause (including, without limitation, reasonable attorneys' fees and paralegal fees). Seller
shall save Buyer harmless from and against all judgments, orders, decrees, attorney's fees, costs,
expenses and liabilities in and about any such claim, suit, investigation or defense thereof, which
may be entered, incurred or assessed as a result of the foregoing. The provisions of this
subparagraph shall survive the Closing.
9. ACCESS. Seller hereby grants to Buyer and its consultants, agents and
assigns, full right of entry upon the Property from the Effective Date through the Closing Date
to obtain the environmental site assessment referenced in Paragraph 7 hereof, to obtain the
Survey referenced in Paragraph 5 hereof, and for such other purposes as determined by Buyer.
Buyer, as a condition precedent to its exercise of such right of entry, specifically agrees, to the
extent permitted by law, to defend, indemnify and save and hold Seller harmless from and
against any loss, damage, liability, suit, claim, cost or expense (including reasonable attorney's
fees and paralegal fees) arising from the exercise by the Buyer or its consultants, agents or
assigns of such right of entry and inspection. Buyer also agrees that it shall cause any physical
damage to the Property occasioned as a result of such right of entry to be repaired to the original
condition thereof promptly upon the completion of any such tests or examination.
10. REPRESENTATION. Seller hereby represents to Buyer the following
statements are true and correct, and the Buyer's obligation to close shall be conditioned on the
same being true and correct, as of the Closing Date:
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A. Ownership. Seller owns marketable fee simple to the Property
subject only to the Permitted Exceptions and those matters which will be discharged by Seller
at or prior to Closing and the Seller's execution, delivery and/or performance of this Agreement
is not prohibited by or will not cause a default under any agreement, covenant, document or
instrument.
B. Possession. Seller is in sole possession of the Property and there
are no parties in possession of all or any portion of the Property as lessees, tenants, licensees,
trespassers or otherwise, except for persons occupy the Property, or a portion thereof, without
written leases on a month-to-month basis who may be terminated on thirty (30) days notice. At
Closing, Seller shall provide the Buyer and Title Company with estoppel letters from all persons
occupying the Property confirming the foregoing representation and sufficient to limit the
exception for parties in possession as provided in Section 4C hereof.
C. Labor. All work, labor, services and material furnished prior to
Closing will be discharged by Seller at or prior to Closing so that no construction, mechanic's,
materialmen or other liens may constitute a claim against the Property or the improvements
thereon.
D. Authority. Seller is a Florida corporation, duly formed and validly
existing under the laws of the State of Florida and has full power and authority to execute and
deliver this Agreement and to perform the obligations of Seller hereunder. The person executing
this Agreement on behalf of Seller has been authorized to execute and deliver this Agreement
on behalf of Seller and this Agreement and has been approved by all requisite corporate action
of Seller. The execution and delivery by Seller of, and the performance and compliance by
Seller with the terms and provision of this Agreement do not violate any term, condition or
provision of(i) Seller's organizational or governing documents, or(ii) any agreement or contract
to which Seller is bound.
E. Assessments. There are no assessment liens pending or proposed,
certified, confirmed, ratified, special or otherwise affecting the Property.
F. Hazardous Materials. No Hazardous Materials are located on the
Property and Seller has not violated, and is currently not in violation of any Environmental Laws
applicable to the Property. Seller has not caused any Hazardous Materials to be stored at,
disposed of, or located in, on or about the Property. Seller has no knowledge of any claim and
has not received any notice of any claim against Seller or the Property alleging any damage to
the environment or violation of any Environmental Laws. Seller has no knowledge of any facts
which could give rise to any claim, public or private, of violation of any Environmental Law
by Seller, or a violation of any Environmental Law or damage to the environment emanating
from, occurring on, or in any way related to the Property or its use.
G. Termites. There is no visible active termite infestation or visible
damage from termite infestation in the Property. "Termites" shall be deemed to include all
wood destroying organisms required to be reported under the Florida Pest Control Act, as
amended.
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H. Undisclosed Facts. There are no facts known to Seller or its
officers, shareholders or agents materially affecting the value of the Property which are not
readily observable by Buyer or which have not been disclosed in writing by Seller to Buyer.
The foregoing representations shall survive the Closing. If any of the foregoing representations
are not true and correct at the Closing with respect to the Property, then Buyer shall elect as its
sole remedy to either (1) terminate this Agreement and the parties shall have no further rights
or obligations hereunder, or (2) close the transaction contemplated by this Agreement with an
appropriate offset or reduction in the Purchase Price as mutually agreed to by Seller and Buyer.
11. UNSECURED PROMISSORY NOTE. At Closing, Buyer shall execute
and deliver to Seller an unsecured promissory note (the "Note") in a principal amount equal to
the remainder of the Purchase Price as set forth in Paragraph 2(B) hereof. The Promissory Note
shall be based on an amortization schedule of three (3) years and shall be payable in full three
(3) years from the date of Closing. The Note shall bear simple interest at a rate equal to EIGHT
PERCENT (8.0%) per annum. The Note shall be unsecured and no mortgage, financing
statement, or other document shall be recorded to secure the Note. The Note shall provide for
three equal annual payments of principal and interest, with the remaining principal and all
accrued but unpaid interest due in full on the maturity of the Note. The Note shall provide for
the right of prepayment without penalty and shall provide for a grace period of thirty (30) days
for payment of any amounts due thereunder. The Note shall provide that Buyer may setoff
against the Note any unpaid monies owed to Buyer by Seller pursuant to the Lease as described
in Paragraph 18 hereof or pursuant to any indemnities set forth in this Agreement or any of the
closing documents.
12. CLOSING. The closing of title for the Property shall take place at the
offices of Foley & Lardner, 111 North Orange Avenue, Suite 1800, Orlando, Florida at 10:00
a.m. on June 30, 1998, unless extended pursuant to other terms or provisions of this Agreement
(the "Closing").
13. CLOSING COSTS AND PRORATIONS.
A. Closing Costs. Seller shall pay for the cost of all state documentary
stamps which are required to be affixed to the Warranty Deed, costs of any corrective
instruments, the cost of all lien releases, all state documentary stamp tax due on the Note and
all costs associated with the title insurance. Buyer shall pay for the cost of all recording fees,
the survey, the environmental site assessment, and any termite inspection.
B. Real Estate Taxes. All real estate taxes and assessments which are
or which may become a lien against the Property shall be satisfied of record by Seller at
Closing. In the event Buyer acquires fee title to the Property between January 1 and November
1, Seller shall, in accordance with Section 196.295, Florida Statutes, place in escrow with the
Orange County Tax Collector an amount equal to the current taxes prorated to the date of
transfer, based upon the current assessment and millage rates on the Property. In the event
Buyer acquires fee title to the Property on or after November 1 but prior to January 1 of the
next calendar year, Seller shall pay to the Orange County Tax Collector an amount equal to the
taxes that are determined to be legally due and payable by the Orange County tax collector.
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14. RISK OF LOSS AND CONDITION OF REAL PROPERTY. Seller
assumes all risk of loss or damage to the Property prior to the date of Closing and warrants that
the Property shall be transferred and conveyed to Buyer in the same or essentially the same
condition as of the date of Seller's execution of this Agreement, ordinary wear and tear
excepted. In the event that between the date this Agreement is executed by Seller and the
Closing the condition of the Property, as it existed on the Effective Date, is altered by an act
of God or other natural force beyond the control of Seller, Buyer may elect, at its sole option,
to terminate this Agreement and no party shall have any further obligations under this
Agreement. Seller agrees to clean up and remove all abandoned personal property, refuse,
garbage, junk, rubbish, trash and debris from the Property to the reasonable satisfaction of
Buyer prior to Closing.
15. DOCUMENTS TO BE DELIVERED AT CLOSING.
A. Seller's Documents. In addition to the other documents required
hereunder to be executed by Seller at Closing, the Seller shall execute and acknowledge where
necessary, and deliver to Buyer the following documents at the Closing:
(1) A Warranty Deed conveying to Buyer marketable fee simple
title to the Property, free and clear of all encumbrances other than the
Permitted Exceptions, and any other title exceptions or conditions of title
accepted by the Buyer in accordance with the terms hereof.
(2) A No-Lien Affidavit, which complies with the requirements
of this Agreement.
(3) An Affidavit stating that Seller is not a "foreign person"
pursuant to Section 1445(b)(2) of the Internal Revenue Code.
(4) A Closing Statement.
(5) A Florida Transfer of Interest in Real Property (DR219)
form.
(6) A Further Assurance Agreement providing that the parties
will correct any errors or omissions in any of the closing documents if the
same are discovered subsequent to the Closing.
(7) A Lease Agreement in accordance with Paragraph 18 of this
Agreement.
B. Buyer's Documents. Buyer will execute and acknowledge where
necessary, and deliver to Seller the following documents at the Closing:
(1) A Closing Statement.
7
(2) An unsecured Promissory Note in accordance with
Paragraph 10 hereof.
(3) A Lease Agreement in accordance with Paragraph 18 of this
Agreement.
C. Buyer's counsel shall be responsible for the preparation of all
Closing documents at Buyer's expense.
16. DEFAULT. If Seller defaults under this Agreement, Buyer may waive
the default and proceed to Closing, seek specific performance, or any other remedy permitted
by law or in equity resulting from Seller's default.
17. BROKER.
A. Sellers Representation. Seller represents and warrants to Buyer
that it has not engaged a real estate broker with respect to the Property or this Agreement.
Seller agrees to indemnify and hold Buyer harmless from any real estate commissions or fees
which may be claimed to be due through Seller or pursuant to the acts of Seller. Seller further
covenants and agrees to indemnify Buyer for damages, court costs and attorneys and paralegals
fees incurred as a result of any such claim.
B. Buyer's Representation. Buyer represents and warrants to Seller
that it has not engaged a real estate broker with respect to the Property or this Agreement. To
the extent permitted by law, Buyer agrees to hold Seller harmless from any real estate
commission or fees which may be claimed to be due through the Buyer pursuant to the acts of
Buyer. Buyer further covenants and agrees, to the extent permitted by law, to indemnify Seller
for damages, court costs and attorneys and paralegals fees incurred as a result of any such claim.
18. OCCUPANCY LEASE AGREEMENT. Seller shall retain possession
of that portion of the Property described in Exhibit "B" attached hereto and by this reference
made a part hereof (the "Leased Premises") after the Closing in accordance with the terms and
conditions of a Lease Agreement mutually acceptable to Buyer and Seller in their reasonable
discretion (the "Lease"). The Lease shall be executed at Closing and shall include, without
limitation, the following provisions: (i) Seller, as lessee, shall pay to Buyer, as lessor, a rental
payment equal to EIGHT HUNDRED AND NO/100 Dollars ($800.00) which shall be due and
payable on the 10th day of each month of the term of the Lease; (ii) Seller, shall be responsible
to pay all taxes, insurance, maintenance and repair costs and expenses associated with the Leased
Premises; (iii) Seller shall, at Seller's expense, maintain the Leased Premises in its existing
condition and in compliance with all laws, statutes and ordinances; (iv) the Lease shall terminate
three (3) years from the Closing Date at which time Seller, shall deliver the Leased Premises
to Buyer, in substantially the same condition as existing on the Closing Date; (v) Buyer, shall
be permitted to terminate the Lease Agreement with ninety (90) days prior written notice to
Seller, with the parties having no further obligations and/or liabilities associated with the Lease;
(vi) upon twenty (20) days prior notice to Seller, the Buyer, shall have the right to utilize the
Leased Premises, except for buildings and structures located thereon, for public parking and
other activities related to events and programs being held at the Ocoee Municipal Complex; (vii)
8
assignment of the Lease shall be prohibited; and (viii) those additional provision listed in Exhibit
"C" attached hereto and incorporated herein by reference. The Lease Agreement shall be
drafted Buyer's counsel and shall be mutually agreed upon within thirty (30) days from the
Effective Date. In the event the parties have not agreed on the form of Lease by the aforesaid
deadline, then either party may thereafter terminate this Agreement by written notice to the other
party; provided, however, that any such termination shall not be based on an objection to the
provisions contained in this Section and Exhibit "C" hereto. The Lease is given in mutual
consideration for this Agreement.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties, and there are no understandings dealing with the subject matter of this
Agreement other than those contained herein. This Agreement may not be modified, changed
or amended, except by a writing signed by the parties hereto or their authorized agents.
20. FURTHER ASSURANCES. At any time and from time to time, upon
a written request therefore by the other party, a party shall execute and deliver the requesting
party such further documents and instruments and/or take such other actions as are reasonably
necessary to confirm and/or effectuate this Agreement and the consummation of the transactions
contemplated hereby.
21. TIME OF ESSENCE. Time is of the essence for this Agreement and in
the performance of all conditions, covenants, requirements, obligations and warranties to be
performed or satisfied by the parties hereto. Whenever a date specified herein shall fall on the
weekend or legal holiday, the date shall be extended to the next business day. All time frames
in the Agreement that are less than six (6) days shall count only business days. All time frames
in the Agreement greater than six (6) days shall include weekends and holidays.
22. ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the other party.
23. SEVERABILITY. In the event any of the provisions of this Agreement
are deemed to be unenforceable, the enforceability of the remaining provisions of this Agreement
shall not be affected.
24. SUCCESSORS IN INTEREST. The terms and conditions of this
Agreement shall apply to and bind Seller, its heirs, successors and assigns upon signing by Seller
and shall be binding upon Buyer and Buyer's successors and assigns upon signing by Buyer.
Whenever used, the singular shall include the plural and one gender shall include the plural and
one gender shall include all genders.
25. WAIVER. Failure of Buyer to insist upon strict performance of any
covenant or condition of this Agreement, or to exercise any right herein contained, shall not be
construed as a waiver or relinquishment for the future of any such covenant, condition or right;
but the same shall remain in full force and effect.
9
26. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, but all such counterparts, when duly executed, shall constitute one and the same
Agreement.
27. NOTICE. Whenever a party desires or is required to give notice unto the
other, it must be given in writing, and either delivered personally or sent by certified mail,
return receipt requested to the appropriate address indicated on the first page of this Agreement,
or such other address as is designated in writing by a party to this Agreement to the other party,
which notice is provided as required by this paragraph.
28. APPLICABLE LAW. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Florida.
29. DISCLOSURE OF BENEFICIAL INTEREST. Seller warrants and
represents to Buyer that no member of Buyer's City Commission, no agent or employee of the
Buyer, and no person related by blood or marriage of the any aforesaid has or will benefit in
any way, either directly or indirectly from the sale of the Property by Seller to Buyer under the
provisions of this Agreement. Seller shall submit to Buyer contemporaneous with the execution
of this Purchase Agreement, a Disclosure of Beneficial Interest as required pursuant to Section
286.23, Florida Statutes.
30. RECORDING. Neither this Agreement, nor any memorandum, summary
or portion thereof shall be recorded in the Public Records and any such recording shall be null
and void and have no force and effect.
31. RADON GAS. Pursuant to the provisions of Section 404.056(8) Florida
Statutes, Seller hereby notifies Buyer as follows with respect to the Property: "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 your county public health
unit."
32. OFFER AND ACCEPTANCE. This Agreement shall first be executed
in duplicate by Seller and submitted to Buyer. In the event this Agreement is not executed by
Buyer and delivered to Seller OR THE FACT OF EXECUTION by Buyer communicated in
writing to Seller on or before May 21, 1998, then this Agreement shall be null and void and of
no further force and effect.
33. EF'F'ECTIVE DATE. This Agreement shall become effective as of the
date it is executed by the last party hereto, and such date shall be filled in on the first page
hereof (the "Effective Date").
10
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, on the date specified below.
Signed, sealed and delivered "SELLER"
in the presence of:
BASE OPERATIONS MGMT.
SERVICES, INC., a Florida corporation
aAc/ ,L vc� /'/
Signature Name: Ben Griffin
Title: President
Marian Green
'nt/Type Name Executed on: May 99 , 1998
Si$ ature
Jean Graf ton
Print/Type Name
"BUYER"
CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
By:
Signature S. SCOTT VANDERGRIFT, Mayor
Print/Type Name Attest:
JEAN GRAFTON, City Clerk
Signature Executed on: , 1998
Print/Type Name
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING
APPROVED AS TO FORM AND LEGALITY HELD ON , 1998
this day of , 1998. UNDER AGENDA ITEM NO.
FOLEY & LARDNER
By:
City Attorney
11
EXHIBIT "A"
LEGAL DESCRIPTION = THE PROPERTY
Lots 1 through 6, 7, 9, 10, 16, 17, and 23, Marion Park, Plat Book "D", Page 48, Public
Records of Orange County, Florida.
•
12
EXHIBIT "B"
LEASED PREMISES
Lots 1 through 6, 7, 9, 10 and 23, Marion Park, Plat Book "D", Page 48, Public Records of
Orange County, Florida.
A:\BASEOPER.NEW(S/IJ981OCOEE BASE OPERATIONS(DISK)!PER:dP
13
EXHIBIT "C"
ADDITIONAL LEASE TERMS, CONDITIONS AND LIMITATIONS
1. Purpose. Seller shall use the Leased Premises
solely for Seller' s current uses, subject to the terms, conditions
and limitations set forth in the Lease .
2 . Covenants and Obligations . Seller shall comply, at
Seller' s sole cost and expense, with the following covenants and
obligations during the Lease Term:
A. Seller shall maintain the Leased Premises in
substantially the same condition of repair, sightliness,
healthfulness, and cleanliness that existed on the Closing Date .
Seller shall not commit or suffer any waste, impairment or
deterioration of the Leased Premises or any improvements located
thereon.
B. Seller shall pay all debts incurred by Seller
with respect to the Leased Premises and shall satisfy all liens of
contractors, sub-contractors, mechanics, laborers, and materialmen
in respect to any construction, alterations and repair in and on
the Leased Premises, and any improvements thereon authorized by
Seller, its agents or employees, and shall indemnify Buyer against
all legal costs and charges, including attorneys' fees reasonably
incurred, in any suit involving any claims, liens, judgments or
encumbrances suffered by Buyer as a result of the use or occupancy
of the Leased Premises or any part thereof by Seller, its agents,
employees or tenants. Furthermore, Seller shall have no authority
to create any liens for labor or material on or against Seller' s
interest in the Leased Premises and all persons contracting with
the Seller shall be notified by Seller that they must look
exclusively to Seller for the payment of any bill or account for
work done or material furnished during the Lease Term. Seller
shall and hereby does indemnify and agree to hold Buyer harmless
against all claims, losses, damages, expenses, demands, causes of
action, suits and judgments, including expenses incurred in
connection therewith, for death or injuries to persons or for loss
of or damage to the Leased Premises arising out of or in connection
with the use and occupancy of the Leased Premises by Seller, its
agents, employees, invitees, tenants, or subtenants . In the event
of any such claims made or suits filed, Buyer shall give Seller
prompt written notice thereof and Seller shall defend or settle to
the extent of its interest under the Lease .
C. Seller shall take possession of the Leased
Premises with full knowledge of the existing condition thereof and
all existing restrictions on the use thereof . Seller acknowledges
that the Leased Premises is delivered to Seller in "AS IS" , "WHERE
IS" condition as originally conveyed by Seller to Buyer at the
Closing.
D. If Seller' s Leasehold interest in the Leased
Premises shall be sold under execution or other legal process
without the prior written consent of Buyer, or if Seller shall fail
to keep any of the other covenants of the Lease and such default is
not cured within the period of notice and grace referred to in
Paragraph 3 (C) below, it shall be lawful for Buyer, at Buyer' s
option, to reenter the Leased Premises, and the same to have again,
repossess and enjoy, as in its first and former estate; and
thereupon the Lease Term shall terminate and all of Buyer' s
obligations with respect to the Lease shall cease, terminate, and
be null and void; without prejudice, however, to the right of the
Buyer to recover from Seller any sums due under the Lease .
E. All personal property placed upon, or moved in
or upon the Leased Premises shall be at the sole risk of the Seller
and its tenants and subtenants . Buyer shall not under any
circumstances be liable for any damage to or loss of said personal
property. All such personal property shall be removed from the
Leased Premises at the termination of the Lease Term.
F. Seller shall at all times during the Lease
Term pay any and all taxes, fees, charges and special assessments
which may be levied or assessed against the Leased Premises or the
Seller' s Leasehold interest .
G. Seller shall at all times during the Lease Term
maintain the following insurance, all at Seller' s expense : (i)
general liability insurance in an amount not less than $500 , 000 . 00 ;
and (ii) fire and casualty insurance with respect to the buildings
and other structures located on the Leased Premises in an amount
not less than their full insurable value. The foregoing insurance
shall be placed with a company or companies reasonably acceptable
to Buyer. Buyer shall be named as an additional insured under such
general liability insurance. The insurance on the building shall
be issued in the name of and for the benefit of Buyer. All such
insurance policies shall provide that they cannot be canceled
except after 30 days written notice to Buyer. Reasonable proof of
such insurance shall be provided to Buyer at the Closing and from
time to time upon request of Buyer. In the event any sum of money
becomes payable by virtue of such insurance on the building and
other structures, all such sums shall be payable to Buyer and Buyer
shall be under no duty or obligation to utilize such monies to
rebuild or repair the damaged buildings or other structures .
H. Seller shall not use the Leased Premises nor
allow the Leased Premises to be used for any illegal, unsafe, or
immoral purposes during the Lease Term.
I . Seller, or its tenants and subtenants, shall
pay for all utilities and services to be provided to, or which
shall be necessary for Seller' s, or its tenants or subtenants, use
of the Leased Premises, including but not limited to, electric,
-2-
sewer, water, natural gas, stormwater utility fees, telephone,
garbage collection and other similar services .
3 . Default.
A. Without in any way limiting the right of either
party to sue for damages, either party shall .to the extent
permitted by law, be entitled to enforce the terms of the Lease by
action for specific performance in the event of a default by the
other party.
B . In the event either party commences an action
against the other party to enforce any of the terms of the Lease or
because of a breach by the other party of any of the terms of the
Lease or for the recovery of any sums due hereunder or for the
unlawful detainer of the Leased Premises, the prevailing party
shall, to the extent permitted by law, be entitled to recover costs
and reasonable attorneys' fees and paralegal fees from the other
party, at both the trial and appellate levels, and the right to
such costs and reasonably attorneys' fees and paralegal fees shall
be deemed to have accrued from the commencement of such action and
shall be enforceable whether or not such action is prosecuted to
judgment .
C. In the event either party considers that the
other party has failed or refuse to perform an obligation relating
to the Lease, such party shall give written notice of such fact to
the other party (a "Default Notice" ) . The party receiving a
Default Notice shall be in default under the terms of the Lease if
(i) such failure or refusal is not cured within ten (10) business
days following receipt of a Default Notice, or (ii) if such failure
or refusal is not susceptible of cure within such ten (10) day
period and the party receiving a Default Notice fails to commence,
within said ten (10) day period, and diligently and continuously
prosecute to completion all actions reasonably calculated to effect
cure of such failure or refusal .
4 . Risk of Loss . If the Leased Premises or any part
thereof shall be damaged or destroyed by fire, flood or other
casualty so that the buildings located on the Leased Premises
become uninhabitable ( "Damage" ) , then Seller may, at Seller' s
option, terminate the Lease Term upon thirty (30) days notice to
Buyer. In the event of any such Damage, the Buyer shall be under
no obligation to repair any such Damage or to expend any monies to
repair any such Damage; provided, however, that Buyer may at its
option elect to use any insurance proceeds to repair any such
Damage .
5 . Alterations and Improvements . Seller shall not make
any alterations or improvements to the Leased Premises without the
prior written consent of Buyer, which consent may be granted or
withheld in Buyer' s sole discretion.
-3-
6. Subleases. Seller shall not enter into a lease or
sublease of the Leased Premises, on any portion thereof, for a term
which exceeds three (3) months or extends beyond the Lease Term
hereunder; otherwise, Seller shall be permitted to lease or
sublease the Leased Premises, or any portion thereof, without the
consent or approval of Buyer. Seller shall promptly provide Buyer
with a copy of any written leases or subleases of the Leased
Premises or any portion thereof .
7 . Offset Against Promissory Note. The Buyer shall be
entitled to offset against monies due on the Note from Buyer to
Seller executed at closing any unpaid monies owed by Seller to
Buyer pursuant to the terms of the Lease .
A:\EXHIBIT.C;5/12.98;000EE BASE OPERATION(DISK);PER:dp
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DISCLOSURE OF BENEFICIAL INTERESTS IN REAL PROPERTY
TO: S . Scott Vandergrift, Mayor, CITY OF OCOEE, a Florida
municipal corporation ( "Buyer" )
FROM: BASE OPERATIONS MGMT. SERVICES, INC. , a Florida
corporation ( "Seller" )
SUBJECT: Proposed Sale from Seller to Buyer of real property
described in Exhibit "A" attached hereto (the "Property" )
Please be advised that the undersigned, after diligent
search and inquiry, hereby states under oath, and subject to the
penalties prescribed for perjury: (i) that the Seller is the owner
of fee simple title to the Property, (ii) that the Seller' s address
is /2 East McKev Street, Ocoee, Florida 34761, (iii) that the
undersigned has been authorized by Seller to execute this disclosure
on behalf of Seller, and (iv) that the name and address of each
person having a legal or beneficial interest in the Property is as
follows :
Name Address
Base Operation Mgmt. Services, Inc. 12 E. McKev Street
Ocoee, FL 34761
I swear and affirm that the information furnished herein is
accurate as of the date hereof, and I agree to promptly disclose any
changes in the information contained herein, or any errors in such
information between the date hereof and the date of the sale of the
Property from Seller to Buyer.
This disclosure is made under oath and I understand I am
subject to penalties for perjury for any false information contained
herein.
This disclosure is made pursuant to Section 286 .23 , Florida
Statutes, in connection with a conveyance of the Property to the
Buyer.
'
Print Name: Ben Griffin
Title : President
Address : / 2 East McKev Street
Ocoee, Florida 34761