HomeMy WebLinkAboutVI(A1) Approval Of Purchase Agreement With Coca Cola Company Agenda 6-06-2000
Item VI A 1
I
FOLEY & LARDNER
MEMORANDUM
CLIENT-MATTER NUMBER
020377-0524
TO: The Honorable Mayor and City Commissioners of the City of Ocoee
FROM: Paul E. Rosenthal, Esq., City Attorney
DATE: May 30, 2000
RE: Contract for Sale and Purchase with The Coca-Cola Company for the Purchase
of Certain Lands Adjacent to and east of Lake Apopka in the
Vicinity of Fullers Cross Road and Ocoee-Apopka Roads
QUESTION:
Should the Honorable Mayor and City Commissioners approve, following a public
hearing, the proposed Contract for Purchase and Sale between The Coca-Cola Company,
as Seller, and the City of Ocoee, as Buyer, for the purchase of approximately 318 acres of
land located adjacent to and east of Lake Apopka in the vicinity of Fullers Cross Road and
Ocoee-Apopka Road?
DISCUSSION:
In consultation with Mayor Vandergrift and representatives of the Orange County School
Board, the City staff has negotiated a proposed Purchase Contract with The Coca-Cola Company
("Seller") for the acquisition of approximately 318 acres owned by The Coca-Cola Company (the
"Coke Property"). The primary purpose of the City in pursuing,the proposed Purchase Contract
has been to facilitate the location of a new high school on the Coke Property and to further
facilitate the location of an elementary school on the Coke Property or in the general vicinity
thereof. To this end, the City staff, in consultation with Mayor Vandergrift, has also negotiated
with the School Board staff a proposed Interlocal Agreement which will be considered by the City
Commission following approval of the Purchase Contact. As discussed in that Agenda Item, the
Interlocal Agreement provides for the School Board to acquire 115 acres of the Coke Property at
a price of $1,816,206.50 and further provides for participation by the School Board in certain
specifically defined expenses relating to the Due Diligence Investigation, land acquisition and
master planning.
The provisions of Section C-8(B)(1) of the Ocoee City Charter requires that the acquisition
of any real property at a price in excess of$1,000,000 must be approved by the City Commission
following an advertised public hearing regarding any such acquisition. The Charter also requires
6u
006.182856.1
that any such property be acquired for the fair market value thereof unless determined otherwise
by the City Commission for good cause shown. Since the proposed purchase price of the Coke
Property is $3,750,000 (and the City portion thereof, after taking into account the participation by
the School Board, is $1,933,793.50) the foregoing provisions of the Charter are applicable and a
public hearing has been duly noticed to consider the proposed Purchase Contract.
The City and the School Board jointly obtained two (2) appraisals of the Coke Property.
The first appraisal was prepared by Clayton, Roper & Marshall and found that the fair market
value of the Coke Property to be $3,700,000.00. The second appraisal was prepared by
DeRango, Best & Associates and found that the fair market value of the Coke Property to be
$3,800,000.00. Copies of these appraisals were provided to the Seller and are available for
review in the City Clerk's office. The negotiated purchase price for the Coke Property is the
average of the two (2) appraisals. School Board policy prohibits the School Board from paying a
purchase price in excess of the average of the two (2) appraisals. The appraisals assumed that the
Coke Property contains approximately 318 acres consisting of 232 acres of usable land and 86
acres of jurisdictional wetlands. It should be noted that there is not a current legal description of
the Coke Property and that a final verification of the acreage will be made during the Inspection
Period (as discussed below) and, if necessary, the appraisals will be updated based upon final
legal descriptions and acreage certifications.
Highlights of the proposed Purchase Contract are as follows:
(1) The purchase price is $3,750,000 for the lands depicted on a sketch attached as
Exhibit "B" to the Contract.
(2) The City will pay a deposit of$100.00 which will be at risk and non-refundable.
(3) The City will have 120 days from the Effective Date of the Contract (the
"Inspection Period") to undertake a due diligence investigation of the Coke
Property. The City has the right to terminate the Purchase Contract at any time
during the Inspection Period. A report on the results of the Due Diligence
Investigation will be presented to the City Commission prior to the expiration of
the Inspection Period so that the City Commission may make a final decision to
proceed in light of such reports.
(4) The City, at the City's expense, is responsible for all recording fees, survey costs,
title policy costs, financing costs, and costs associated with the City's due diligence
investigation. The Seller is responsible for the costs of documentary stamp taxes
on the Deed and the cost of recertification of a Phase I Environmental Assessment
of Coke Property. To the extent additional environmental assessments are
required, they would be at the City's expense.
(5) The City may raise title and/or survey objections based upon the title commitment
and survey, respectively. However, the Seller has no obligation to cure or
otherwise address any such objections. If title and survey are unacceptable and the
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Seller is unable to cure such objections, or elects not to attempt to cure, then
termination of the Purchase Contract would be the only remedy of the City.
(6) The Coke Property is being sold in "as is" condition with no representations or
warranties whatsoever being made by the Seller as to the condition or any other
matter concerning the Coke Property, except for very limited representations set
forth in the Purchase Contract. The City will be relying solely on its own
investigation and the review of information provided by the Seller.
(7) The closing will be 127 days from the Effective Date of the Contract, unless earlier
terminated by the City (i.e., on or about October 20, 2000).
(8) No brokers are involved in the transaction.
(9) If the City defaults, then the City would be liable for up to $25,000 in damages.
payable to Seller. Termination during the Inspection Period is not a default. The
Purchase Contract would not be enforceable against the City by specific
performance.
(10) If the Seller defaults, the City may elect to either seek specific performance of the
Purchase Contract or recover damages not to exceed $25,000.
(11) The City has the right to pursue certain Development Activities prior to closing,
including annexation, joint planning area agreement amendments, comprehensive
plan amendments, and rezonings; provided, however, that any such activities
cannot be binding on the Seller if the City fails to close.
A complete copy of the Purchase Contract is attached to this memorandum.
In considering approval of the proposed Purchase Contract the City Commission should
take into account the following:
(1) It will be necessary for the City to undertake and complete a due diligence
investigation prior to the expiration of the above-described Inspection Period. The
Due Diligence Investigation may include the following: (a) survey, (b)
environmental assessment; (c) soil studies; (d) wetlands analysis; (e) stormwater
analysis; (f) preliminary master planning; (g) analysis of development costs; (h)
marketing studies; and (i) transportation impact analysis.
It is estimated that the cost of this investigation could approach $100,000. The
proposed Interlocal Agreement calls for the School Board to participate in funding
up to $50,000. In the event either the City or School Board decides not to proceed
with the acquisition, these costs will not be recoverable.
(2) During the Inspection Period it will be necessary for the City to finalize financing
for its portion of the Purchase Price, Due Diligence Investigation and master plan
-3-006.182856.1
development. Prior to the expiration of the Inspection Period, an advertised public
hearing will be required to approve any such financing.
(3) The financial feasibility of the City's participation is premised upon the ability to
annex, rezone and sell for private development a portion of the Property and to
recoup from such sales substantially all of the costs incurred by the City. This is
the anticipated method of repaying the loan discussed above. At this time, other
funding sources have not been identified. A market analysis will be done during
the course of the Inspection Period in order to evaluate the feasibility of this
approach. Following closing, there is no assurance that the City will be able to
recover substantially all of its costs through such sales or that sales will generate
sufficient cash to pay any loans when they become due and payable.
(4) Approval of the Interlocal Agreement by the City and School Board will be
necessary in order for the City to proceed to enter into the Contract. During the
Inspection Period it is anticipated that the City will obtain information regarding
the estimated post-closing cost of master planning and developing the property for
use by the City and School Board and, where appropriate, resale to third parties.
This will require further negotiations with the School Board and may require an
amendment to the Interlocal Agreement. While the City and School Board are
proceeding in good faith, there is no assurance that an acceptable agreement will be
reached regarding the funding of these post-closing costs.
(5) It is anticipated that an amendment to the Joint Planning Area Agreement Future
Land Use Map will be required in order for the City to annex and zone the Coke
Property consistent with the master plan. There is no assurance that the County
will support such an amendment to the JPA Agreement.
(6) The County owns a contiguous piece of property which has certain environmental
issues. In order to maximize the development of the Coke Property it will be
desirable for the City to obtain an access road through this County property. It is
anticipated that this will be pursued during the Inspection Period.
After consideration of all of the factors discussed above, the City Manager and the City staff
recommend approval of the proposed Purchase Contract.
RECOMMENDATION:
It respectfully is recommended that the Honorable Mayor and City Commissioners (i)
approve the proposed Contract for Sale and Purchase with The Coca-Cola Company at a purchase
price of $3,750,000, subject to the execution of an Interlocal Agreement with The School Board
of Orange County, Florida to provide $1,816,206.50 towards the purchase price thereof, and
authorize the Mayor and City Clerk to execute the Purchase Contract and all other documents
necessary or desirable to consummate the transaction, and (ii) authorize and direct the City staff
to bring back to the City Commission such agreements as may be necessary to undertake a due
diligence investigation of the Coke Property.
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Lewis, Judie
From: Henning, Judith L. [JHenning@foleylaw.com]
Sent: Wednesday, May 31, 2000 3:08 PM
To: 'Judie Lewis'
Subject: FW: The Coca- Cola Company-City of Ocoee
CokeCity of Ocoee-
Contract f...
> This e-mail and the Purchase Contract attached hereto should be
attached
> to my memorandum to the City Commission on the Coca-Cola Property
> purchase. We are faxing Exhibit "B" to the Purchase Contract which
should
> also be attached.
> Judy
Original Message
> From: Kern, Joseph [SMTP:Joe.Kern@lowndes-law.com]
> Sent: Wednesday, May 31, 2000 12 :55 PM
> To: Paul E. Rosenthal (E-mail)
> Cc: 0' Brien, Susan
> Subject: The Coca- Cola Company - City of Ocoee
> Paul:
> Attached is the revised Contract which reflects your letter of 5/30
and
> our
> discussion this morning. I am sending the enclosed to you to assist
you
> with completing your Commissioner packages for the City's meeting next
> week.
> However, the attached draft is still subject to review and approval by
the
> Company's representative. I will try to obtain that approval as
quickly
> as
> possible and to determine whether we will be able to execute the
Contract
> prior to the June 6 meeting.
>
> You indicated you will provide me with a courtesy copy of the package
> which
> is going to the Commissioners. Please also let me know about the
286.23
> Notice as it appears no disclosure will be necessary due to the
exemption
> under the statute for publicly traded companies.
> I will be back in touch with you on the firebreak issue and the
matters
> described above.
> Joseph G. Kern
> Lowndes, Drosdick, Doster,
1
> Kantor & Reed, P.A.
> CNL Center at City Commons
> 450 South Orange Avenue, 8th Floor
> Orlando, Florida 32801
> Bus: (407) 843-4600
> Direct: (407) 418-6358
> Bus Fax: (407) 843-4444
> E-mail: joe.kern@lowndes-law.com
> Firm Website: http://www.lowndes-law.com <http://www.lowndes-law.com/>
• This message and any attachments are intended only for the use
of
> the addressee and may contain information that is privileged and
> confidential. If the reader of the message is not the intended
recipient
> or
> an authorized representative of the intended recipient, you are hereby
> notified that any dissemination of this communication is strictly
> prohibited. If you have received this communication in error, please
> notify
> us immediately by replying to this e-mail message or by telephone at
> 407-843-4600 and delete the message and any attachments from your
system.
> Thank you.
> «CokeCity of Ocoee - Contract for Purchase & Sale.DOC»
2
CONTRACT FOR PURCHASE AND SALE
THIS CONTRACT FOR PURCHASE AND SALE (the "Contract") is made and
entered into this day of , 2000 by and between THE COCA-COLA
COMPANY, a Delaware corporation, whose mailing address is Post Office Drawer 1734,
Atlanta, Georgia 30301 ("Seller"), and the CITY OF OCOEE, a municipal corporation and
political subdivision of the State of Florida whose mailing address is 150 North Lakeshore Drive,
Ocoee, Florida 34761 ("Buyer").
WITNESSETH:
1, Contract. Subject to the terms and conditions contained in this Contract, Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, that parcel of land situate in
Orange County, Florida, more particularly described on Exhibit "A" attached hereto and as
generally depicted on Exhibit "B" attached hereto (the "Property"), together with (i) all of
Seller's right, title and interest in, on, and to all easements, rights-of-way, licenses, privileges,
tenements, hereditaments, reversions and appurtenances belonging or appertaining to the
Property, if any; (ii) all right, title and interest of Seller, if any, in and to any street, road, alley,
avenue, right of way, or the like adjoining the Property to the center thereof (before or after
vacation thereof, and whether previously abandoned or vacated or hereafter abandoned or
vacated); (iii) all soil, dirt, fill, gravel, oil, gas, minerals and the like located on or in the
Property; (iv) all structures, fixtures and other improvements, if any, located, constructed or
installed upon the Property; and (v) all licenses, permits, authorizations, consents, variances,
waivers, approvals, certificates and the like, from any federal, state, county, municipal or other
governmental or quasi-governmental body, agency, department, board, commission, bureau or
other entity or instrumentality affecting the Property, its development, or use together with all
rights and entitlements of Seller pertaining to the Property or any portion thereof including
without limitation, any development rights and other similar rights which are for the use and
benefit of the present and future development of the Property, and drainage rights, curb cuts, and
access rights granted by or approved by any governmental body, agency, or authority.
2. Purchase Price. The Purchase Price shall be THREE MILLION SEVEN-
HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($3,750,000.00). The Purchase
Price shall be paid as follows:
14476/74269/348998-2
A. Buyer shall, within three (3) days following execution of this Contract by both
parties, deliver to Lowndes, Drosdick, Doster, Kantor & Reed, P. A. ("Escrow
Agent") as an earnest money deposit hereunder, a check in the amount of ONE
HUNDRED AND NO/100 DOLLARS ($100.00) (the "Earnest Money Deposit").
The. Earnest Money Deposit shall be deposited by Escrow Agent immediately
after receipt in a non-interest bearing account at a federally insured bank, subject
to disbursement in accordance with the terms and provisions of this Contract. The
Earnest Money Deposit shall be the property' of Seller and non-refundable to
Buyer as consideration for this Contract and the Inspection Period described
hereinbelow. The Earnest Money Deposit shall be applicable to the Purchase
Price in the event of the closing hereunder.
B. The balance of the Purchase Price, THREE MILLION SEVEN HUNDRED
FORTY-NINE THOUSAND NINE HUNDRED AND NO/100 DOLLARS
($3,749,900.00), or such greater or lesser amount as may be necessary to complete
the payment of the Purchase Price after credits, adjustments and prorations
provided for herein, shall be paid to Foley & Lardner, as closing agent (the
"Closing Agent") at the Closing by wire transfer or by Buyer's check for which
funds are immediately available. The Escrow Agent shall, at.Closing, deliver the
Deposit to the Closing Agent by trust account check or wire transfer. The Closing
Agent shall disburse such funds in accordance with the provisions of this Contract
and the closing statement to be executed by the parties at closing. The net
proceeds payable to the Seller (after credits, adjustments and prorations) shall be
disbursed by wire transfer or trust account check (as determined by Seller) in
accordance with the written instructions of the Seller to Buyer and the Closing
Agent.
3. Evidence of Title.
A. Within twenty (20) days from the receipt of the Survey (as defined herein), Buyer
shall obtain, at Buyer's sole cost and expense, a commitment for an owner's title
insurance policy (the "Commitment") written on First American Title Insurance
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Company ("FATIC"), Lawyers' Title Insurance Corporation ("LTIC"), Chicago
Title Insurance Corporation ("CTIC") or another nationally recognized title
insurance company evidencing that Seller is vested with good and marketable fee
simple title to the Property and agreeing to issue to Buyer, upon recording of the
special warranty deed to Buyer, an owner's title insurance policy in the amount of
the purchase price of the Property at Buyer's sole cost and expense. Within five
(5) days of Buyer's receipt of the Commitment, Buyer shall provide a copy of the
Commitment and all title documents identified therein to Seller. The effective
date of such policy shall be the date the special warranty deed conveying the
Property is recorded among the Public Records of Orange County, Florida. Buyer
shall have thirty (30) days from the date the Commitment is obtained to review
and examine the Commitment (the "Title Review Period"). In the event any title
defects or exceptions that render title unmarketable or are otherwise unacceptable
to Buyer appear in the Commitment, Buyer shall, within the Title Review Period,
notify Seller in writing of such fact (the "Correction Notice"). All other
encumbrances, instruments, documents, exceptions or qualifications to title to the
Property as reflected in the Commitment, unless timely objected to by Buyer in
writing, shall be deemed "Permitted Exceptions," and all such matters for which
an objection has been timely raised shall be deemed title defects ("Title Defects").
Without limiting Buyer's rights contained herein, in case of a lien or encumbrance
on any portion of the Property, which at the time of the Closing is a liquidated
amount other than liens arising from Buyer's due diligence activities on the
Property, Seller covenants and agrees to remove such lien or encumbrance at the
Closing so that the Property will be conveyed to Buyer free and clear of same and
in such event said liens and encumbrances shall not constitute a Title Defect.
Within five (5) days of its receipt of Buyer's notice of the Title Defects, Seller
shall notify Buyer of those Title Defects which Seller, in its sole and absolute
discretion, shall and shall-not correct or otherwise cause the Title Company to
have deleted as title exceptions on the Commitment (the "Correction Notice").
Seller shall have no obligation to cure any Title Defects. All Title Defects which
Seller notifies Buyer it shall not correct in the Correction Notice shall be deemed
Permitted Exceptions.
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B. In the event Buyer determines that any Title Defects noted by Buyer which Seller
chooses not to correct so as to become Permitted Exceptions are unacceptable,
Buyer shall have the right to terminate this Contract during the Inspection Period
(as hereinafter defined) by written notice to Seller. In the event Seller is unable to
eliminate from the Commitment the Title Defects or survey matters which Seller
agreed to correct within sixty (60) days following Seller's delivery of the
Correction Notice or the Survey Correction Notice (as hereinbelow defined), as
the case may be, Buyer may terminate this Contract by written notice to Seller, or
Buyer may accept such title as Seller can then deliver with no further liability of
Seller under this Contract with regard to the curing of any such Title Defects.
C. Seller agrees to execute at closing an owner's affidavit in form reasonably
satisfactory to Seller and the title agent, which shall enable the title agent to delete
the standard possessory and lien exceptions from the Commitment.
D. The Commitment shall be endorsed or"marked-up" at the Closing as to show title
to the Property in Buyer as required herein. The title insurer shall provide gap
coverage insuring against adverse title matters pursuant to Section 627.7841,
Florida Statutes. Upon the closing and recording of the deed to Buyer, the Title
Policy shall be issued pursuant to the Commitment and delivered to Buyer so as to
show title in Buyer as required herein. Upon execution by Seller, at Closing, of
the Owner's Affidavit described above and completion of the Survey, the
"standard exceptions" to the Title Policy shall be deleted, except for matters
actually shown on the Survey.
E. Buyer must raise any objections it may have regarding matters depicted on the
Survey it is to obtain pursuant to Paragraph 6 of this Contract by delivering
written notice of such objections to Seller within the Title Review Period. Upon
receipt of such written notice, Seller shall have a period of five (5) days to notify
Buyer of those survey objections which Seller, in its sole and absolute discretion,
shall or shall not correct or cause to be deleted as title exceptions on the
Commitment (the "Survey Correction Notice"). All matters Seller chooses not to
correct or is unable to correct shall be deemed "Permitted Exceptions." In the
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event Buyer determines that any survey matters objected to by Buyer which Seller
chooses not to correct so as to become Permitted Exceptions are unacceptable,
Buyer shall have the right to terminate this Contract within the Inspection Period.
4. Representations and Warranties; As-Is Condition.
A. Buyer acknowledges and agrees that the Property is being sold and conveyed by
Seller and purchased by Buyer hereunder in its present condition AS-IS, and that
Seller makes absolutely no representations or warranties whatsoever with respect
to the condition of or any other matter concerning the Property except as
specifically set forth in this Contract. Except as specifically set forth in this
Contract, Buyer hereby agrees and acknowledges that neither Seller nor any
principal, agent, attorney, employee or representative of Seller has made, nor is
Buyer relying upon, any representation, warranty or covenant, express or implied,
to Buyer or any agent of Buyer with respect to the Property, including, without
limiting the generality of the foregoing, representations as to (i) the physical
nature or condition of the Property or the capabilities thereof or the absence of any
hazardous waste or materials therein or thereon, (ii) the nature of any
governmental approvals of any kind whatsoever obtained or necessary to be
obtained in connection with the construction, use, occupancy, sale, development
or subdivision of the Property or any portion thereof, (iii) the suitability thereof
for any purpose for which Buyer may desire to develop or use the same, (iv) the
condition of title to the Property (except as specifically set forth in the special
warranty deed to be delivered by Seller to Buyer), (v) the availability of utility
services to the Property, including, but not limited to, sanitary sewer and water
service, or(vi) compliance with any laws, codes or ordinances (including, without
limitation, land use or environmental laws). Buyer acknowledges that it is a
material part of the consideration to Seller hereunder that Buyer hereby waives
any claim that any such representation, warranty or covenant has been made.
B. Seller represents and warrants to Buyer that the following statements are true and
correct, and Buyer's obligation to close shall be conditioned on the same being
true and correct as of the Closing Date:
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(i) Seller has full power and authority to enter into and perform this
Contract in accordance with its terms and has taken or will take all
necessary action or its equivalent to authorize the execution,
delivery and performance of the terms and conditions of this
Contract.
(ii) Seller's execution, delivery and/or performance of this Contract is
not prohibited by and will not cause a default under any other
contract, covenant, document or instrument.
(iii) There is no pending litigation or dispute involving or concerning
the location of the boundaries of the Property or in any way
affecting the title to or ownership of the Property.
(iv) Except for this Contract or as evidenced by instruments recorded in
the Public Records of Orange County, Florida, Seller has not
entered into any leases, licenses, contracts or other agreements
relating to any portion of the Property which will, survive the
Closing.
(v) To the best of Seller's knowledge, no member of the City
Commission, no agent or employee of Buyer, and no person
related by blood or marriage to any of the aforesaid has or will
benefit in any way, either directly or indirectly, from, or receive
any portion of the payments to be made to Seller under the
provisions of this Contract.
(vi) To the best of Seller's knowledge, there are no persons or entities
in possession of, or entitled to possession of, all or any portion of
the Property, as the case may be, as lessees, tenants at sufferance,
licensees or trespassers.
(vii) Seller is not a "foreign person" as such term is defined in Section
1445(f) of the Internal Revenue Code.
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(viii) There are no pending or certified, confirmed and ratified special
assessment liens against the Property provided; however, Seller
shall make no representations or warranties as to any special
assessment liens arising out of the Development Activities (as
described herein).
Seller shall take, or cause to be taken, all actions necessary to cause the representations of
the Seller as contained in this Contract to remain materially true and correct in all respects from
the Effective Date through the Closing Date. The representations and warranties set forth in this
Paragraph 4 shall not survive the Closing hereunder. Whenever in this Contract reference is
made to the "knowledge" or "actual knowledge" of Seller, such term shall mean only the
knowledge or actual knowledge of Lynne O'Brien, Esquire of the Seller.
5. Inspection Period.
A. Buyer shall have the right to . carry out and conduct all such inspections,
investigations, soil and subsurface tests, environmental investigations,
jurisdictional determinations, and other analyses with respect to the Property as
Buyer deems necessary for a period of one hundred twenty (120) days from the
Effective Date of this Contract (the "Inspection Period"). If Buyer determines, in
Buyer's sole opinion and within Buyer's sole discretion, that the Property is
unacceptable to Buyer for any reason whatsoever or that the results of any such
inspections, investigations and analyses are unacceptable to Buyer for any reason
whatsoever and Buyer so notifies Seller of that fact on or before 5:01 p.m. EST on
the last day of the Inspection Period, then, at Buyer's option, Buyer may terminate
this Contract by notifying Seller of the same in writing. Buyer has disclosed to
Seller that during the Inspection Period, Buyer will need to finalize an Interlocal
Agreement with The School Board of Orange County, Florida to participate in
funding the acquisition of the Property and that Buyer intends to terminate the
Contract during the Inspection Period in the event Buyer does not reach such an
agreement on terms acceptable to Buyer in its sole and absolute discretion. In the
event Buyer does not timely give such written notice for any reason this Contract
shall remain in full force and effect, and such lack of timely notice shall
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irrevocably constitute a waiver by Buyer of such right to terminate the Contract
pursuant to this Paragraph 5. Time is of the essence hereof. In the event this
Contract is terminated pursuant to the provisions of this Paragraph 5, Buyer shall
promptly deliver to Seller copies of all reports, tests results, studies and any other
information relating to the Property gathered or generated by Buyer or its agents
during the Inspection Period, which information shall be fully paid for by Buyer,
except as otherwise set forth herein.
B. Commencing upon delivery of the Earnest Money Deposit to Escrow Agent and
continuing for so long as this Contract remains in full force and effect, Seller
hereby grants to Buyer, its agents, employees, consultants, contractors and
designees a non-exclusive license and right to enter upon the Property during
normal business hours for the purpose of conducting inspections, evaluations,
tests and studies of the Property, all of which shall be at Buyer's sole cost and
expense. Buyer agrees to promptly provide Seller with copies of all inspections
results, tests and studies as they are obtained by Buyer, except that the foregoing
shall not apply to market studies, financial feasibility studies and preliminary
master plans. Buyer shall promptly repair and restore any portion of the Property
damaged or affected by any such inspections, analyses, tests and studies. Buyer
shall obtain all necessary approvals, if any, from all governmental agencies prior
to such entry and the commencement of the work necessary to carry out the
inspections, analyses, tests and studies. To the extent permitted by law, Buyer
hereby indemnifies and agrees to defend, protect and hold harmless Seller from
and against any cost, liability, damage and/or expense (including, without
limitation, environmental liability, remedial costs, removal costs, and reasonable
attorneys' fees and expenses) incurred by Seller as a result of or in connection
with the above-described entry and/or work upon the Property. Said
indemnification shall survive any termination of this Contract.
C. Within ten (10) days from the Effective Date, Seller shall deliver to Buyer a true,
correct and legible copy of all surveys, title policies, soils reports, wetland reports,
biological investigations, environmental reports, land use plans, and similar
documents and reports obtained by, generated by or at the request of Seller, or its
8
consultants, agents and representatives, with respect to the Property which are
either readily available in the files of Seller or its counsel or have been provided
to Seller or its counsel within the past two (2) years as a result of the
condemnation for the Western Beltway of certain property contiguous to the
Property. During the Inspection Period, Seller shall cause its consultants who
may have prepared any such documents and reports for Seller to be available,
after reasonable notice to Seller and said consultants, to meet with Buyer and its
agents, employees, consultants and designees by telephone or at the offices of
such consultants provided; however, such consultants shall only be required to
respond to reasonable requests for explanation of such documents and reports and
shall not be required to provide additional analysis or to update such reports or
documents. At Closing, Seller shall assign all such documents and reports to
Buyer without any warranty or representation whatsoever.
6. Survey. Buyer shall obtain, within sixty (60) days of the Effective Date, a survey
of the Property prepared by a registered land surveyor licensed in the State of Florida and
acceptable to Seller(the "Survey"). The cost of the Survey shall be paid by Buyer. If the Survey
indicates overlaps, encroachments or other matters on the Property other than those described in
the Permitted Exceptions, Buyer's and Seller's obligations regarding the same shall be governed
by Paragraph 3 hereof. Buyer acknowledges the Property legal description set forth on Exhibit
"A" attached hereto reflects various conveyances as a result of the condemnation for the Western
Beltway. The survey shall include a legal description reflecting the vesting deed legal
description less any subsequent conveyances or property not otherwise intended to be included
within the Property and shall include appropriate certifications by the Surveyor to Buyer, Seller
and the title agent. The legal description (or descriptions) of the Property as set forth on the
Survey shall be utilized in the Commitment, Title Policy, Special Warranty Deed and all other
closing documents provided the surveyor certifies that such legal descriptions describe the same
land as described in the instruments by which Seller acquired title to the Property as aforesaid.
7. Closing. The closing hereunder shall occur seven (7) days after the expiration of
the Inspection Period (the"Closing"). The closing shall be held at the offices of Seller's counsel,
215 North Eola Drive, Orlando, Florida, 32801 at a time mutually convenient to Buyer and
Seller, or shall be coordinated by Federal Express or other comparable express mail service
9
through the offices of Escrow Agent so that all documents and transfers of funds are fully
completed and executed on or before such closing date.
8. Obligations at or Prior to Closing.
A. Prior to Closing. Contemporaneous with or prior to the execution of this
Contract, and provided Seller is not exempt, Seller shall deliver to Buyer a public
disclosure of its beneficial ownership which shall comply with the requirements
set forth in Section 286.23, Florida Statutes, as from time to time amended. This
Contract constitutes a written notice from Buyer to Seller requesting the foregoing
disclosure and informing Seller that such disclosure must be made under oath,
subject to the penalties prescribed for perjury.
B. Seller shall prepare and deliver to Buyer at closing:
(i) A duly executed special warranty deed in recordable form
conveying marketable fee simple title to the Property free and clear
of all liens and encumbrances other than the Permitted Exceptions
and any other exceptions acceptable to Buyer; and
(ii) A duly executed owner's affidavit in a form satisfactory to Seller
and the title company and sufficient to delete the standard
mechanic's lien exception and the standard possessory rights
exception from the title policy to be issued pursuant to the
Commitment; and
(iii) A duly executed closing statement; and
(iv) Such other duly executed documents in recordable form, as are
contemplated herein or reasonably required by Buyer or the Title
Company to consummate the transaction contemplated herein.
C. Buyer shall prepare and/or deliver to Seller at closing:
(i) The balance of the Purchase Price in accordance with Paragraph 2
hereof; and
10
(ii) A duly executed closing statement; and
(iii) Such other documents duly executed in recordable form as are
contemplated herein or reasonable required by Seller or the Title
Company to consummate the transaction contemplated herein.
9. Broker.
A. The Seller represents and warrants to the Buyer that Seller is not aware of any
person or entity which would be entitled to a commission, compensation or
brokerage fee for the bringing about of this transaction or the consummation
hereof as the result of the acts of Seller or Seller's representatives. Seller agrees
to indemnify, defend and hold Buyer harmless from any such commission, fees or
compensation which may be claimed to be due through the Seller or pursuant to
the acts of Seller or Seller's representatives. Seller further covenants and agrees
to indemnify Buyer for damages, court costs and reasonable attorneys' fees and
paralegal fees, at both the trial and appellate levels, incurred as a result of any
such claim.
B. The Buyer represents and warrants to Seller that it is not aware of any person or
entity which would be entitled to a commission, compensation or brokerage fee
for the bringing about this transaction or the consummation hereof as the result of
the acts of Buyer or Buyer's representatives. To the extent permitted by law,
Buyer agrees to indemnify, defend and hold Seller harmless from any
commission, fees or compensation which may be claimed to be due through the
Buyer or pursuant to the acts of Buyer or Buyer's representatives. Seller further
covenants and agrees, to the extent permitted by law, to indemnify Buyer for
damages, court costs and reasonable attorneys' fees and paralegal fees, at both the
trail and appellate levels, incurred as a result of any such claim.
C. The provisions of this Paragraph 9 shall survive the closing and the termination of
this Contract.
11
10. Prorations - Closing Expenses.
A. Seller shall pay for the cost of(a) all documentary stamp taxes or other transfer
taxes required to be paid with respect to the special warranty deed and (b) the cost
of the recertification and reliance letter for the Phase I environmental assessment
described in Paragraph 31.
B. Buyer shall pay for (a) all recording fees with respect to all closing documents
which are to be recorded, (b) the survey, (c) all costs associated with Buyer's
inspection of the Property (d) all costs associated with Buyer financing the
purchase of the Property, if any, and (e) the fee for the title search, Commitment
and the premium for the owner's title insurance policy to be issued pursuant
thereto.
C. Each party hereto shall bear the costs of its own attorney's fees.
D. In accordance with Section 196.295(1), Florida Statutes, the Seller, at the Closing,
shall deliver to the Closing Agent, an amount equal to the current ad valorem
taxes on the Property prorated to the date of transfer of title, based upon the
current assessment and millage rates on the Property (the "Tax Escrow Money").
Within ten (10) days after the Closing Date, the Closing Agent shall forward the
Tax Escrow Money to the Orange County Tax Collector by certified mail, return
receipt requested, with a copy of the transmittal letter and check being sent to the
Buyer and Seller. The letter of transmittal shall include a copy of the deed of
conveyance from Seller to Buyer and shall instruct the Orange County Tax
Collector to place in escrow the Tax Escrow Money in accordance with Section
196.295(1), Florida Statutes. At least three (3) days prior to the Closing, Seller
shall obtain from the Orange County Property Appraiser a written estimate of the
ad valorem assessment for the Property (i.e., a tax cut-out). Notwithstanding the
foregoing, if the Closing occurs between November 1 and December 31, then
Seller shall pay all ad valorem taxes for the entire year of the Closing.
Notwithstanding any provision contained in this Contract to the contrary, Buyer
shall not be required to credit Seller or pay at the Closing (or thereafter) any ad
12
valorem taxes on the Property, except for those real property taxes, if any,
accruing subsequent to December 31 st of the year of the Closing.
E. Seller shall pay for all certified, confirmed and ratified special assessment liens, if
any, existing as of the Closing Date except for such liens arising out of or as put
in place due to the Development Activities (as defined herein).
11. Tax Deferred Exchange. Upon the request of Seller and provided it does not
require a delay in the closing date, Buyer agrees to cooperate with Seller in good faith to effect a
tax deferred exchange of real property for the benefit of Seller in accordance with the provisions
of Section 1031 of the Internal Revenue Code of 1986, as amended from time to time; provided,
however, that Buyer shall not incur nor shall Buyer be obligated to incur any cost, expense or
liability of any nature or kind as a result of or arising out of Buyer's cooperation or participation
with Seller in effecting the tax deferred exchange contemplated herein.
12. Default. The following provisions shall govern the rights of the parties hereto in
the event that this Contract fails to close:
A. If Seller defaults or otherwise fails to consummate this Contract in accordance
with its terms for any reason, except for Buyer's default or its termination of the
Contract as herein provided, Buyer's sole recourse shall be (i) an action at law for
actual damages for Buyer's fees and costs associated with the negotiation of this
Contract and its due diligence and planning activities for the Property during the
pendency of this Contract, which damages shall be limited to the amount of
$25,000.00, or(ii) specific performance, but not both. Buyer hereby waives for all
purposes any other legal or equitable remedy, and waives any right to recover or
claim compensatory, consequential, special, punitive or any other type of
damages. The foregoing limitation of remedies and waiver constitute material
consideration for Seller's entry into this Contract. -
B. In the event Buyer defaults or otherwise fails to consummate this Contract in
accordance with its terms for any reason, except for Seller's default or Buyer's
right of termination as herein provided, Seller's sole recourse shall be an action at
law for Seller's actual damages associated with the negotiation of this Contract
13
and its fees and costs in assisting Buyer with Buyer's due diligence activities
during the pendency of this Contract, which damages shall be limited to the
amount of$25,000.00. Seller hereby waives for all purposes any other legal or
equitable remedy, and waives any right to recover or claim compensatory,
consequential, special, punitive or any other type of damages. The foregoing
limitation of remedies and waiver constitutes material consideration for Buyer's
entry into this Contract.
C. Both Seller and Buyer expressly acknowledge that the above provisions are
reasonable in light of the intent of the parties hereto, the circumstances
surrounding the execution of this Contract, and the difficulty in determining
damages resulting from a breach hereof, and that their respective rights and
remedies shall be limited as set forth above. Prior to either party declaring the
other party in default hereunder, it is agreed that the non-defaulting party shall
give written notice to the defaulting party setting forth with specificity the alleged
default and the defaulting party shall thereafter have ten (10) days to cure any
such default; provided, however, that no notice shall be required to declare a
default based upon the failure to close on the Closing Date.
13. Notices. All notices required or referenced by this Contract shall be sent by either
U.S. certified mail, return receipt requested, or by Federal Express or other overnight next day
delivery service, to the following addresses:
To Seller: Lynne R. O'Brien, Attorney-at-Law
THE COCA-COLA COMPANY
Post Office Drawer 1734
Atlanta, Georgia 30301
With a copy to: Joseph G. Kern, Esquire
Lowndes, Drosdick, Doster, Kantor&Reed, P.A.
215 North Eola Drive
Orlando,Florida 32801
To Buyer: City of Ocoee
Attention: City Manager
150 N. Lakeshore Drive
Orlando, Florida 32801
14
With a copy to: Paul E. Rosenthal, Esquire
Foley &Lardner
111 N. Orange Avenue, Suite 1800
Orlando, Florida 32801
All notices sent certified mail shall be deemed delivered upon the earlier of the date the
receiving party signs an acknowledgment of receipt or five (5) days after the notice is
postmarked. All notices sent via Federal Express or other overnight next day delivery service
shall be deemed delivered one (1)business day after deposited with such service.
14. Successors and Assigns. This Contract shall be not be assignable by Buyer
without the prior written consent of Seller.
15. Attorneys' Fees. In the event that it shall be necessary for either party to this
Contract to seek to enforce this Contract or to bring any legal action to enforce any provisions
hereof or for damages expressly provided for herein on account of any breach of this Contract,
the prevailing party in any such legal action, including, suits and appeals therefrom and including
bankruptcy proceedings, shall be entitled to recover from the other party, in addition to any
damages expressly provided herein, or other relief granted as a result of such legal action, and
expressly provided for herein, all costs and expenses of such action, including reasonable
attorneys' fees and paralegals' fees, whether such expenses were incurred before or after suit was
brought.
16. Governing Law and Binding Effect. This Contract and the interpretation and
enforcement of the same shall be governed by and construed in accordance with the laws of the
State of Florida and shall be binding upon, inure to the benefit of, and be enforceable by the
parties hereto as well as their respective successors and assigns. The normal rules of
construction requiring that an agreement be construed most strictly against the drafter are hereby
waived by the parties, as each party has been represented by counsel and the parties and their
respective counsel have each participated in the negotiation and drafting of this Contract. In the
event of any disagreement, conflict or litigation under this Contract, exclusive venue for the suit
brought to resolve such dispute shall lie in Orange County, Florida.
15
17. Time is of the Essence. It is expressly agreed by the parties hereto that time is of
the essence of this Contract and in the performance of all conditions, covenants, requirements,
obligations and warranties to be performed or satisfied by either party hereto. Whenever a date
specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to
the next succeeding business day.
18. Negotiated Price to be Without Prejudice. The Purchase Price specified herein
was negotiated by the parties on the basis of a total price for the Property and shall be without
prejudice to any party, and inadmissible in any court proceedings which might hereinafter be
brought if the Buyer for any reason does not acquire the Property pursuant to the terms herein
contained. The provisions this paragraph shall survive the termination of this Contract.
19. Non-Waiver of Sovereign Immunity. Nothing contained in this Contract or in any
instruments pursuant to the terms of this Contract shall be construed as a waiver or attempted
waiver by the Buyer of its sovereign immunity under the Constitution and laws of the State of
Florida; provided, however, that this paragraph shall not be.construed as an attempt by the Buyer
to negate any partial waiver of sovereign immunity made by the Legislature under the provisions
of The Tort Claims Act, Section 768.28, Florida Statutes or any further statute or Act adopted by
the Florida Legislature.
20. Counterparts. This Contract and any amendments hereto may be executed in any
number of counterparts, each of which shall be deemed to be an original instrument, but all such
counterparts together shall constitute one and the same instrument.
21. Further Documentation. The parties agree that at any time following a request
therefor by the other party, each shall execute and deliver to the other party such further
documents and instruments, in form and substance reasonably necessary to confirm and/or
effectuate the obligations of either party hereunder and the consummation of the transactions
contemplated hereby. The provisions of this paragraph shall survive the Closing.
22. Waiver. Waiver of performance or satisfaction of timely performance or
satisfaction of any condition, covenant, requirement, obligation or warranty by one party shall
not be deemed to be a waiver of the performance or satisfaction of any other condition, covenant,
requirement, obligation or warranty unless specifically consented to in writing by both parties.
16
23. Possession and Risk of Loss. Possession of the Property shall be delivered by
Seller to Buyer at the time of closing hereunder. Prior to the delivery of possession as aforesaid,
Seller shall bear all risk of loss of whatever nature except for claims or losses incurred as a result
of Buyer's entry upon and inspection of the Property as provided for in Paragraph 5 hereof, and
subsequent to the delivery of possession Buyer shall bear all risk of loss of whatever nature.
24. Entire Agreement. This Contract embodies the complete and entire
understanding and agreement between the parties hereto with respect to all matters contemplated
in this transaction and supersedes any and all prior or contemporaneous agreements, whether
written or oral. No agreements or other provisions, unless incorporated herein, shall be binding
on either party hereto. This Contract may not be modified or amended nor may any covenant,
agreement, condition, requirement, provision, warranty or obligation contained herein be
released unless specifically consented to in writing by both parties hereto.
25. Effective Date of Contract. This Contract shall first be executed by the Seller and
shall be irrevocable by Seller until June 16, 2000. The effective date of this Contract (the
"Effective Date") shall be the date on which it is executed by Buyer and a fully executed original
thereof is delivered to Seller or Seller's counsel and such date shall be inserted on the first page
of this Contract. If the Buyer does not execute this Contract by June 16, 2000 and promptly
deliver written notice thereof to Seller or Seller's counsel as aforesaid, then this Contract shall be
null and void and of no further force and effect.
26. Contract Not Recordable. Neither this Contract nor any notice of it or any of its
terms shall be recorded in the Public Records of Orange County, Florida. If Buyer shall attempt
to record this Contract or a notice hereof, in whatever fashion, Seller shall have the option, to be
exercised in Seller's sole discretion, to render this Contract null and void and of no further force
or effect.
27. Captions and Paragraph Headings. Captions and paragraph headings contained in
this Contract are for convenience and reference only and in no way define, describe, extend or
limit the scope or content of this Contract nor the intent of any particular provisions hereof
28. Number and Gender. Whenever used herein, a singular number shall include the
plural, the plural shall include the singular, and the use of any gender shall include all genders, as
17
the context requires.
29. Severability. If any provision of this Contract is held to be illegal or invalid, all
other provisions shall remain in full force and effect, unless holding a particular provision or
provisions illegal or invalid shall serve to frustrate the purpose of this Contract.
30. Radon Gas Notification. In accordance with the requirements of the Florida
Statutes, Section 404.056(8), the following notice is hereby given: Radon is a naturally
occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may
present health risk 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. •
31. Environmental Matters. Seller makes no representations or warranties whatsoever
to Buyer as to the environmental condition of the Property. During the first twenty-five (25)
days of the Inspection Period, Seller shall, at its sole cost and expense, provide Buyer with an
original of a previously prepared Phase I environmental assessment of the Property, along with a
secondary reliance letter from the maker of the assessment authorizing Buyer's and The School
Board of Orange County, Florida's reliance on the same, to Buyer for Buyer's review. The Seller
understands and acknowledges that all environmental reports received by Buyer from Seller or
otherwise obtained by Buyer are public records under the Florida Public Records Law and are
subject to public disclosure pursuant thereto. In the event that a demand is made upon Buyer for
any disclosure pursuant to any legal process, Buyer shall immediately notify Seller.
Notwithstanding anything contained herein to the contrary, Buyer is in no way restricted or
prohibited from complying with any and all laws, statutes, ordinances, rules, regulations, or any
judicial or administrative interpretations thereof, including, without limitation, any obligation or
duty to report environmental conditions to appropriate authorities or agencies.
32. Authority.
A. Buyer hereby warrants and represents to Seller that this Contract and the purchase
of the Property has been approved by Buyer at a public hearing pursuant to
Section 8B(l) of the Ocoee City Charter.
18
B. Each person executing this Contract, by his or her execution hereof, represents
and warrants that they are fully authorized to do so, and that no further action or
consent on the part of the party for whom they are acting is required for the
effectiveness and enforceability of this Contract against such party following
execution.
3 3. Development Approvals.
A. During the Inspection Period, Buyer may, at its option, undertake the following
development activities with respect to the future development of the Property: (a)
annexation of the Property into the City of Ocoee; (b) amendment to the City of
Ocoee/Orange County Joint Planning Area Agreement so as to allow for the
development of the Property as a mixed size development which may include
residential, multi-family, office, commercial, industrial, school, governmental,
institutional,park and/or recreation uses; (c) comprehensive plan amendments and
rezonings consistent with the foregoing mixed uses which may increase the
density and intensity of development on the Property; and (d) development
permits and development orders consistent with the foregoing mixed uses,
including but not limited to subdivision and site plan approvals (collectively,
"Development Activities"); provided, however, that none of the foregoing
Development Activities shall be effective or binding on the Property unless Buyer
closes on the purchase of the Property pursuant to this Contract. Seller consents
to Buyer filing with the appropriate governmental entities such applications and
plans as Buyer may deem necessary in order to pursue the Development
Activities. Seller agrees in good faith to cooperate with Buyer in attempting to
obtain approval of such applications and plans for Development Activities on the
Property. Such cooperation shall be without expense to Seller, but Seller
expressly agrees to join in any applications or petitions that are necessary to
obtain such approvals for the Development Activities provided Seller is provided
with a complete copy of any such application or petition at least five (5) business
days prior to the time it is to be filed and any such application or petition which is
joined in by Seller is filed without any material changes from that which has been
reviewed by Seller.
19
B. Seller agrees that it will not object to, protest, or oppose any of the Development
Activities on the Property which are pursued by the Buyer or The School Board of
Orange County, Florida or their respective express designees. The provisions of
this subparagraph shall survive the Closing and shall be enforceable by Buyer by
specific performance.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed in
manner and form sufficient to bind them on the dates set forth below.
Signed, sealed and delivered THE COCA-COLA COMPANY, a
in the presence of: Delaware corporation
Witness: By:
Printed Name: Name:
Title:
Witness: Date:
Printed Name:
(Corporate Seal)
"SELLER"
ATTEST: CITY OF OCOEE,FLORIDA
By:
Jean Grafton, City Clerk(Seal) S. Scott Vandergrift, Mayor
FOR USE AND RELIANCE ONLY BY THE Executed on , 2000
CITY OF OCOEE, FLORIDA; APPROVED
AS TO FORM AND LEGALITY this
day of _ , 2000 APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
FOLEY &LARDNER HELD ON , 2000
UNDER AGENDA ITEM NO.
By:
City Attorney
"BUYER"
20
The Escrow Agent hereby acknowledges the receipt of Buyer's check in the amount of
ONE HUNDRED AND NO/100 DOLLARS ($100.00) subject to collection and negotiation in
accordance with the terms hereof, and agrees to act as Escrow Agent hereunder.
LOWNDES, DROSDICK, DOSTER,
KANTOR&REED, P.A.
By:
Joseph G. Kern
"ESCROW AGENT"
21
EXHIBIT "A"
LEGAL DESCRIPTION
To be agreed upon by Seller and Buyer prior to the end of the
Inspection Period. The legal description shall be consistent with
the sketches attached to this Contract as Exhibit`B" and shall
include the Parcels labeled on said Exhibit`B" as:
NW Parcel 1
NW Parcel 2
NE Parcel 1
NE Parcel 2
S Parcel 1
S Parcel 2
S Parcel 3
It shall also include the areas labeledon the Exhibit as
"Wetlands/Conservation Area"
EXHIBIT "B"
SKETCH
EXHIBIT "B"
AcE � to Purchase Contract
TOTAL AREA +354.0
AREA OF TAKING _+3530
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