HomeMy WebLinkAboutItem 01 Approval of Purchase and Sale Agreement - Chevron Property
City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
STAFF REPORT
Meeting Date: May 18, 2023
Item #: 1
Contact Name: Michael Rumer Department Director: Michael Rumer
Contact Number: Ext. 1018 City Manager: Robert Frank
Subject: Approval of Purchase and Sale Agreement - Chevron Property. (City Attorney
Cookson)
Background Summary:
At the December 6, 2022 City Commission Meeting the City Commission approved and entered into a
Memorandum of Understanding (the “Memorandum of Understanding”) with Montierre Development, LLC
(“Montierre”) relating to the development of the Ocoee Regional Sports Complex (the “Project”). The
Memorandum of Understanding outlined the basic terms whereby (i) the City would enter into a contract with
Chevron Land and Development Company (“Chevron”) to purchase Chevron’s approximately 95 acre property
located along Ocoee Apopka Road (the “Chevron Property”) for $4,200,000.00 (the “Chevron Contract”); (ii)
the City would assign the City’s rights and obligations as the purchaser under the Chevron Contract to
Montierre so that Montierre, and not the City, purchases the Chevron Property from Chevron; (iii) at the
closing on Montierre’s purchase of the Chevron Property from Chevron pursuant to the Chevron Contract, the
City would convey to Montierre the City’s approximately 37 acre property adjacent to the Chevron Property,
commonly known as the “Rodgers Property”; and (iv) enter into a development agreement with Montierre that
addresses the future development of the Project and the terms by which the City would be compensated for
the assignment to Montierre of the Chevron Contract and for the conveyance of the Rodgers Property to
Montierre.
The basic terms of the Chevron Contract are as follows:
Purchaser: City of Ocoee (with the right to assign the City’s rights and obligation to Montierre)
Seller: Chevron Land and Development Company
Effective Date: The date the Chevron Contract is executed by the City and Chevron
Purchase Price: $4,200,000.00
Initial Deposit: $100,000.00 (due within 5 business days from the Effective Date)
Additional Deposit: $25,000.00 (due within 5 business days following the expiration of the Due Diligence
Period)
Due Diligence Period: 120 days following the Effective Date
Closing Date: 60 days following the expiration of the Due Diligence Period
The intent of the transaction is for the City to execute the Chevron Contract and then immediately assign the
Chevron Contract to Montierre. Thus, Montierre would then become the purchaser and be responsible for
posting the deposits and conducting the due diligence during the Due Diligence Period. In addition,
Montierre, not the City, would eventually close under the Chevron Contract and purchase the Chevron
Property.
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City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
The Chevron Property has some historical environmental contamination. The history of such contamination
and the steps taken and being taken are detailed in reports provided by Chevron. In addition, Montierre will
engage their own environmental consultants to examine the environmental condition of the Chevron
Property. A condition to the sale of the Chevron Property by Chevron is that the purchaser (the City and
Montierre) release and provide indemnification to Chevron relating to certain future claims that could arise
relating to the environmental condition of the Chevron Property. The City has taken the following steps to
address any liability of the City:
1. The City will assign the Chevron Contract to Montierre and not take title to the Chevron Property;
2. The City will process an application to designate the Chevron Property as a Brownfield Area which
provides certain safe harbors with respect to environmental claims; and
3. As set forth in the Development Agreement between the City and Montierre, Montierre will obtain
environmental liability insurance on the Chevron Property naming the City as an additional insured.
Issue:
Should the Honorable Mayor and the Board of City Commissioners approve the Chevron Contract?
Recommendations:
Staff respectfully recommends that the Honorable Mayor and Board of City Commissioners approve the
Chevron Contract.
Attachments:
1. Purchase and Sale Agreement
Financial Impacts:
Detailed in the Development Agreement
Type of Item: Consent
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PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
BETWEEN
CHEVRON LAND AND DEVELOPMENT COMPANY
AND
CITY OF OCOEE, FLORIDA
ORANGE COUNTY, FLORIDA
Effective Date: _____________, 2023
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PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
TABLE OF CONTENTS
SECTION PAGE
RECITALS ................................................................................................................................................... 1
AGREEMENT .............................................................................................................................................. 1
1. DEFINITIONS, INTERPRETATION, AND EXHIBITS ............................................................... 1
2. SALE AND PURCHASE OF ASSETS, PURCHASE PRICE AND PAYMENTS ..................... 10
3. INSPECTIONS AND APPROVALS ............................................................................................ 12
4. SELLER’S AND PURCHASER’S OBLIGATIONS PRIOR TO CLOSING .............................. 18
5. REPRESENTATIONS AND WARRANTIES .............................................................................. 19
6. PROPERTY CONDITION ............................................................................................................ 21
7. PURCHASER’S RELEASE AND INDEMNIFICATION ........................................................... 24
8. CONDITIONS PRECEDENT TO CLOSING .............................................................................. 27
9. CLOSING COSTS AND PRORATIONS ..................................................................................... 28
10. CLOSING AND ESCROW ........................................................................................................... 30
11. POST-CLOSING DEVELOPMENT OF THE PROPERTY ........................................................ 31
12. DAMAGE, DESTRUCTION AND CONDEMNATION ............................................................. 32
13. DEFAULT AND REMEDIES ....................................................................................................... 33
14. NOTICES ....................................................................................................................................... 36
15. GOVERNING LAW AND RESOLUTION OF DISPUTES ........................................................ 36
16. MISCELLANEOUS ...................................................................................................................... 38
17. ESCROW AGREEMENT ............................................................................................................. 39
18. ADDITIONAL OBLIGATIONS ................................................................................................... 40
19. GENERAL PROVISIONS ............................................................................................................ 40
EXHIBIT B – DEED .................................................................................................................................. 47
EXHIBIT C – ACCESS AGREEMENT .................................................................................................... 50
EXHIBIT D –DISCLOSURE NOTICE ..................................................................................................... 56
EXHIBIT E – RELEASE AND INDEMNITY AGREEMENT ................................................................. 58
EXHIBIT F – TERMINATION AGREEMENT ........................................................................................ 67
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PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (
“Agreement”) dated as of ______________ 2023 (“Execution Date”) is between CHEVRON LAND
AND DEVELOPMENT COMPANY, a Delaware corporation (“Seller”) and CITY OF OCOEE,
FLORIDA, a Florida municipal corporation (“Purchaser”).
RECITALS
A. Seller desires to sell certain real property located in the City of Ocoee of Orange County, State of
Florida, and Purchaser desires to purchase the real property, on the terms and conditions set out in
this Agreement.
B. In consideration of the mutual promises set out in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the Parties agree to be bound
by this Agreement.
AGREEMENT
1. DEFINITIONS, INTERPRETATION, AND EXHIBITS
1.1 Definitions. In this Agreement, these capitalized words or expressions have the following
meanings:
“Access Agreement” means an agreement in substantially the form of Exhibit C to this
Agreement, providing Seller and its Affiliates access to the Property after Closing to
abandon the Monitoring Wells.
“Additional Deposit” has the meaning given in Section 2.5(B).
Adjusted Purchase Price” means the balance of the Purchase Price required to be paid
after application of the Deposit and all prorations, adjustments, and credits required to be
made under the Agreement, including those set forth in Section 9.
“Affiliate” means any legal entity which, directly or indirectly, controls, is controlled by,
or is under common control with, another legal entity. An entity is deemed to control
another if it owns directly or indirectly at least 50% of the shares or interests entitled to
vote.
“Agreement” is defined in the introductory paragraph, including all exhibits and schedules
(if applicable) which are part of this Agreement.
“Applicable Law(s)” means any law, regulation, rule, statute, order, policy, license,
registration, and any other standard or requirements having the effect of law that applies to
the Agreement or the Parties, or interpretations imposed by any Government Entity that
apply to this Agreement.
“Appurtenant Rights” means all easements, hereditaments, appurtenances, development
rights, and other benefits, if any, pertaining to or affecting the Property.
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“Brownfield Area” shall have the meaning set forth in Section 376.79(5), Florida Statutes.
“BSRA” will have the meaning set forth in Section 4.2 of this Agreement.
“Business Day” means all days except for a Saturday, Sunday, or Legal Holiday.
“City” means the City of Ocoee, Orange County, Florida as set forth in the Recitals.
“Claim” means any claim, suits, proceeding, action, liability, loss, demand, damage,
encumbrance, cause of action of any kind, order, subpoena, obligation, cost, royalty, fee,
assessment, duty, requirement, charge, penalty, fine, judgment, interest, and award
(including recoverable legal counsel fees and cost of litigation of the Person asserting the
claim), whether arising by law, contract, tort, voluntary settlement, or in any other manner
resulting from or in any way associated with:
(A) Acts or omissions of Purchaser or Purchaser Group with respect to, or occurring
on, the Property;
(B) The ownership, control, use, possession, or operation of the Property;
(C) The performance or non-performance of any obligation under this Agreement; or
(D) Any condition existing or occurring in, on, under or within the Property after the
Date of Closing, including but not limited to:
(1) The death or injury of any Person, including without limitation, any
member of Purchaser Group;
(2) The damage or destruction of the Property;
(E) The violation or alleged violation of any federal, state, local, or municipal law,
rule, regulation, order, judgment, decree, or other requirement, including without
limitation, requirements under permits, licenses, consents, and approvals;
(F) The existence, assessment, or remediation of Contamination upon, under, in or
emanating from, the Property;
(G) Emissions, discharges, releases or threatened releases, or the presence, generation,
manufacturing, processing, distribution, use, treatment, storage, disposal,
transport, labeling, advertising, sale, display, or handling, of Contamination;
(H) Any special, indirect, or consequential damages, including, but not limited to,
claims for loss of use, rents, anticipated profit or business opportunity, or business
interruption, diminution in value, or mental or emotional distress or fear of injury,
disease or illness, or trespass, nuisance or otherwise;
(I) Any response costs any member of Seller Group or Purchaser Group may incur
with respect to the Property under any Environmental Law; or
(J) Any cause of action or theory of any kind as a result of, in connection with, or in
any way related to, the ownership and operation of the Property.
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Claims do not include matters determined by final non-appealable judgment to have been
caused by the gross negligence or willful misconduct of a member of Seller Group.
“Closing” means the consummation of the purchase and sale and purchase of the Property.
“Closing Date” or “Date of Closing” means the date on which Closing occurs, which is
sixty (60) days after the expiration of the Due Diligence Period, or any other date as agreed
to by the Parties.
“Closing Documents” means all the documents and instruments described in Section 10.2
and Section 10.3.
“Closing Instructions” means the respective letters of escrow closing instructions
executed by Purchaser and Seller (or their respective counsel on behalf of Purchaser and
Seller) containing such terms as described in this Agreement, which will supplement the
instructions provided to the Escrow Agent in this Agreement.
“Conditions Precedent” has the meaning given in Section 8.1.
“Contamination” means any Hazardous Material or toxic material, substance, chemical
or waste, contaminant, emission, discharge or pollutant or comparable material listed,
identified or regulated pursuant to any federal, state or local law, ordinance or regulation
which has as a purpose the protection of health, safety or the Environment, including
petroleum or petroleum products or wastes, or PFAS resulting from any cause, release, or
source during Seller’s ownership of the Property or from Seller’s use of the Property. As
used in this Agreement, Contamination shall include the presence of arsenic in soils and/or
groundwater on or underlying the Property at concentrations in excess of cleanup target
levels set forth in Chapter 62-777, Florida Administrative Code.
“County” means the County of Orange, Florida as set forth in the Recitals.
“Deed” means a special warranty deed conveying title of the Property to Purchaser subject
only to the Permitted Exceptions, in substantially the form of Exhibit B – Deed.
“CTLs” means Florida Department of Environmental Protection Cleanup Target Levels as
defined in the Florida Administrative Code, Chapter 62-777.
“Deposit” means the Initial Deposit and any Additional Deposit as described in
Section 2.5.
“Development Agreement’ means that certain Development Agreement (Eagle Creek of
Ocoee) dated October 21, 2008, by and between Seller and Purchaser, recorded at Doc #
20080729283, Book 9798, Page 0257 of the Public Records of Ocoee County, Florida.
“Dispute” means any claim, disagreement or controversy arising out of this Agreement,
including a Claim under this Agreement and any dispute or controversy regarding the
existence, construction, validity, interpretation, enforceability, termination, or breach of
this Agreement, whether based in contract, tort, or in any other manner.
“Disputed Claim” means any liability, loss, demand, damage, lien, cause of action of any
kind, order, subpoena, obligation, cost, royalty, fee, assessment, duty, requirement, charge,
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penalty, fine, judgment, interest, and award (including recoverable legal counsel fees and
cost of litigation of the Person asserting the claim), whether arising by law, contract, tort,
voluntary settlement, or in any other manner.
“Due Diligence Period” means a period of time commencing on the Effective Date and
expiring at 5:00 p.m. Local Time on the one hundred twentieth (120th) day following the
Effective Date.
“Effective Date” means the 1st day on which both Purchaser and Seller have signed this
Agreement, and a fully executed counterpart of the Agreement, or a PDF copy of the fully
executed Agreement, has been delivered to the Escrow Agent.
“Environment” means all forms of fauna, flora, soil, natural resources; surface,
subsurface, or ground waters; land, ground, surface, or subsurface strata; ambient air; or
any other environmental medium, including the indoor environment, contained within or
affected by the Property or operations thereon.
“Environmental Condition” means Contamination at, on, under or emanating to or from
the Property or a condition or circumstance relating to the Property or operation of the
Property which is or is alleged to be not in compliance with Environmental Law.
“Environmental Law” means any Applicable Law relating to pollution; the protection of
the Environment; the release, emission, discharge, or disposal of any material or chemical
substance; human health or safety; Hazardous Materials; natural resource damage; product
registration; hazard communication, each as from time to time has been or may be amended
or adopted before or after the Effective Date, including any of the following:
(A) The Occupational Safety and Health Act, 29 U.S.C.A. §651, et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C.A. §6901, et seq.; the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. §9601, et
seq.; the Clean Water Act, 33 U.S.C.A. §1251 et seq.; the Clean Air Act, 42
U.S.C.A. §7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §3001, et seq.;
the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq.; the Oil Pollution
Act of 1990, 33 U.S.C.A. §2701 et seq.
(B) Chapters 376 and 403, Florida Statutes as amended, and in or under the regulations
adopted or promulgated pursuant to such laws, including Chapter 62, Florida
Administrative Code.
“Environmental Obligation(s)” means and includes all of the following, regardless of the
sole, joint or concurrent negligence, breach of contract, breach of warranty, strict liability,
regulatory liability, statutory liability, or other fault or responsibility of any Person and
including expenses associated with claims investigation, testing and assessment, and
monitoring: Claims and Losses incurred relating to any Environmental Condition; Claims
and Losses incurred relating to Remediation; Claims and Losses incurred resulting from
injury or death to natural Persons caused by the exposure or alleged exposure to Hazardous
Materials; Claims and Losses incurred relating to the presence, release, emission or
discharge of Hazardous Materials, pollution, contaminant or other regulated substances in
or into the Environment, and Claims and Losses incurred resulting from compliance with
Condition 56 set forth in Exhibit “B” to the Development Agreement, or any subsequent
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development agreement entered into between Purchaser and a third party with respect to
development of the Property.
“Escrow Agent” means Baker & Hostetler, L.L.P., SunTrust Center, Suite 2300, 200
Orange Avenue, Orlando, Florida 32801-3432.
“Exceptions” means, collectively, conditions, easements, encumbrances, restrictions,
exceptions, rights-of-way, title defects, deeds of trust, mortgages, liens, taxes, assessments,
charges, leases, and other matters of record.
“Execution Date” means the date in the introductory paragraph.
“FBRA” means the Florida Brownfield Redevelopment Act (FS 376.77-376.83).
“FDEP” means the Florida Department of Environmental Protection.
“Government Entity” means any department, court, tribunal, exchange, authority,
commission, board, instrumentality, or agency of any municipal, local, state, federal or
other governmental authority (including regulatory authorities and administrative bodies)
and any subdivision of the foregoing or any Person owned or controlled by the government.
“Hazardous Materials” means any chemical substance, product, waste, or other material
which is, or becomes identified, listed, published, regulated, or defined as, or which shows
the characteristics of, a hazardous substance, hazardous waste, hazardous material, toxic
substance, or other regulatory term, including oil, oil waste, by-products and components,
NORM, hydrocarbons, and hydrocarbons waste, produced water, by-products and
components, polychlorinated biphenyls, and asbestos, or which is otherwise regulated or
restricted under any Environmental Law or by any Government Entity, or which may
otherwise cause, contribute to, or result in an Environmental Condition , or Environmental
Obligation, including without limitation, hazardous materials as defined in Chapters 376
and 403, Florida Statutes as amended, and in or under the regulations adopted or
promulgated pursuant to such laws, including Chapter 62, Florida Administrative Code.
As used in this Agreement, Hazardous Materials shall include the presence of arsenic in
soils and/or groundwater on or underlying the Property at concentrations in excess of
cleanup target levels set forth in Chapter 62-777, Florida Administrative Code.
“IDW” has the meaning given in Section 3.2(B).
“Improvements” means any and all improvements located on the Land, including without
limitation, buildings and other structures, any fixtures attached thereto, fencing and
Monitoring Wells.
“Independent Contract Consideration” has the meaning given in Section 2.6.
“Initial Deposit” has the meaning given in Section 2.5(A).
“Inspections” means physical and environmental inspections of the Property.
“Invasive Testing” will have the meaning set forth in Section 3.2 (D) of this Agreement.
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“Land” means that certain parcel of land containing approximately 95.1 acres located in
the City of Ocoee, Orange County, Florida, bearing Orange County Property Appraiser
Parcel ID No. 07-22-28-0000-00-001, as more specifically described on Exhibit “A”
attached hereto.
“Legal Holiday” means any local or federal holiday on which post offices are closed in
the City.
“Liquidated Damages Amount” means all of Purchaser’s out of pocket costs paid to
unrelated entities for performing due diligence of the Property, not to exceed the sum of
US$100,000.00.
“Local Time” means the local time in Ocoee, Orange County, Florida.
“Loss” means all claims, suits, proceedings, actions, demands, liabilities, obligations,
damages, penalties, fines, costs, and expenses, including fees and disbursements, incurred
in connection with any Claim, by and for attorneys, experts, and consultants.
“Monitoring Wells” will have the meaning set forth in Section 6.1 (B) of this Agreement.
“Montierre” means Montierre Development, PLLC, a Florida professional liability
company, having its offices at 5669 SE Crooked Oak Ave, Hobe Sound, Florida 33455.
“New Exceptions” will have the meaning set forth in Section 3.9 of this
Agreement.
“New Exceptions Cure Date” will have the meaning set forth in Section 3.9 of this
Agreement.
“New Objection Letter” will have the meaning set forth in in Section 3.9 of this
Agreement.
“Notice to Proceed” will have the meaning set forth in Section 3.3 (A) of this
Agreement.
“Objection Letter” means the Survey Objection Letter and the Title Objection Letter, or
both.
“Owner’s Policy of Title Insurance” means an ALTA owner’s policy of title insurance
in the amount of the Purchase Price, issued by Title insurer to Purchaser at the Closing
pursuant to the Title Commitment. The Owner’s Policy of Title Insurance will be dated no
earlier than the date of recordation of the Deed from Seller to Purchaser, will name
Purchaser as the insured, and will insure Purchaser’s fee simple title to the Property, subject
only to standard printed exceptions and the Permitted Exceptions. However, in no event
will the Owner’s Policy of Title Insurance include survey modification coverage unless
Purchaser obtains the Survey and delivers a copy to Seller and Title insurer before the
deadline by which Purchaser must deliver the Objection Letter. At its expense, Purchaser
may obtain such endorsements to the Owner’s Policy of Title Insurance as Purchaser deems
appropriate, but in no event will the receipt of any such endorsements be deemed to be a
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Condition of Closing for Purchaser’s benefit and/or part of the Owner’s Policy of Title
Insurance for such purposes.
“Party” means each of Seller and Purchaser and “Parties” means both.
“Permitted Exceptions” means each of the enumerated exceptions to Purchaser’s title to
the Property set forth in Section 3.9 or any other exceptions explicitly stated as such
elsewhere the Agreement.
“Person” means an individual, corporation, company, association, partnership, state,
statutory corporation, Government Entity, or any other legal entity.
“PFAS” means any per- and polyfluoroalkyl substances, whether or not currently regulated
by any Government Entity.
“Prior Survey” means the most recent survey of the Property in Seller’s possession, if any.
“Property” means, collectively, the Land, all Improvements located on the Land and
Appurtenant Rights to such Land.
“Property Documents” means the information materials relating to the Property that to
Seller’s Knowledge are in the possession of Seller.
“Property Taxes” means all real property, personal property, ad valorem taxes and any
other similar taxes imposed on the Property.
“Proposed Contract” has the meaning given in Section 13.5 (B).
“Purchase Price” means the amount payable by Purchaser to Escrow Agent for
disbursement to Seller under Section 2.4.
“Purchaser Group” means Purchaser and its parent, subsidiaries, and affiliated companies
and corporations, and their respective directors, officers, managers, members, elected
officials, employees, representatives, independent contractors, consultants, servants and
agents, and their respective predecessors and successors in interest and assigns, excluding
Seller Group.
“Release and Indemnity Agreement” means the agreement regarding the release and
indemnity by Purchaser and future owners of the Property in substantially the form of
Exhibit E attached hereto and made a part hereof for all purposes.
“Released Matters” has the meaning given in Section 7.1.
“ROFR Acceptance Notice” has the meaning given in Section 13.5 (B).
“ROFR Notice” has the meaning given in Section 13.5 (B).
“ROFR Period” has the meaning given in Section 13.5 (A).
“ROFR Purchase Agreement” has the meaning given in Section 13.5 (D).
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“Seller Group” means Seller, its parent, and Affiliates, whether wholly owned, parti ally
owned, directly or indirectly, together with their respective directors, officers, managers,
members, employees, contractors, representatives and agents, and their respective
predecessors and successors in interest and assigns, excluding Purchaser Group.
“Seller’s Broker” means Jones Land LaSalle IP, Inc., doing business as JLL, whose
principal office is located at 3344 Peachtree Road NE, Suite 1200, Atlanta, Georgia 30326.
“Seller’s Knowledge” means to the current actual knowledge of Seller’s Representative,
without further investigation or inquiry. There will be no personal liability on the part of
Seller’s Representative.
“Seller’s Representative” means Rainier Viera.
“Seller’s Retained Liabilities” means (a) any Claims and other liabilities arising from or
related to Environmental Conditions at the Property which were knowingly and
intentionally concealed from Purchaser by Seller with the intention of inducing Purchaser
to purchase the Property and of which Purchaser had no other knowledge prior to the Date
of Closing; (b) fines or penalties or other relief imposed against Seller or levied against the
Property by governmental agencies relating to Seller’s non-compliance with
Environmental Laws or regulations which occurred prior to the Date of Closing; (c) Claims
or liabilities for personal injury, including death and disability, occurring prior to the Date
of Closing caused to employees, contractors, invitees or guests or any other persons at or
from the Property, but excluding liabilities for personal injury, including death and
disability to the extent caused, in whole or in part, by acts or omissions of Purchaser; (d)
Claims arising from or relating to any contractual liabilities or obligations of Seller to third
parties other than those specifically assumed by Purchaser in this Agreement or at the Date
of Closing; or (e) all of Seller’s representations, warranties, covenants and obligations
under this Agreement and any other document, instrument or agreement executed by Seller
in connection with this Agreement limited to the Survival Period or such other period as
set forth in this Agreement or such other document, instrument or agreement.
“Settlement Statement” means a closing statement prepared by the Escrow Agent.
“Survey” means (A) a Prior Survey, if any, which may be updated by Purchaser, or (B) a
new ALTA survey obtained by Purchaser and made by a licensed surveyor, bearing a legal
description, showing the area, dimensions and location of the Property to the nearest
monuments, streets, alleys on all sides, the topography, the location of all available utilities
in adjoining streets, alleys or property, the location of all improvements and
encroachments, and the location of all recorded easements against or appurtenant to the
Property, and certified to Purchaser and Title insurer.
“Survey Cure Date” means 5:00 p.m. Local Time on the date which is five (5) Business
Days after Seller’s receipt of Purchaser’s Survey Objection Letter.
“Survey Objection Letter” has the meaning given in Section 3.7(A).
“Survival Period” means the period of time from Closing to and until 5:00 p.m. Local
Time on the date which is six (6) months after the Date of Closing, during which the
representations and warranties in Section 5 will survive.
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“Tax Authority” means any revenue, customs or fiscal governmental, state, community,
municipal or regional authority, body or Person authorized to assess, levy, impose,
administer, or collect any Taxes.
“Taxes” means all income, capital, corporate, franchise, gross receipts, margins, turnover,
transfer, occupation, and other excise taxes, severance taxes, Property Taxes, transaction
taxes, customs and other import or export duties, stamp duties, fees, assessments,
withholdings, or charges imposed by any Tax Authority and any penalties, interest and
fines or additions attributable to or imposed on or with respect to any such assessments, all
to the extent related to the Property.
“Termination Agreement” means the agreement regarding the termination of the
Development Agreement in substantially the form of Exhibit F attached hereto and made
a part hereof for all purposes.
“Title Commitment” means a commitment for title insurance describing the status of title
to the Property and all exceptions which would appear in an Owner’s Policy of Title
Insurance.
“Title Company” means First American Title Insurance Company, with Baker &
Hostetler, L.L.P. as its agent.
“Title Cure Date” means 5:00 p.m. Local Time on the date which is five (5) Business
Days after receipt of the Title Objection Letter.
“Title Objection Letter” has the meaning given in Section 3.8(A).
“US$” means United States Dollars.
“Vesting Deed” means that certain Special Warranty Deed dated December 21, 2005, from
Chevron U.S.A. Inc. to Seller conveying the Property, as recorded in Book 8386, Page
3045 of the Public Records of Orange County, Florida.
1.2 Interpretation. Unless the context expressly requires an interpretation to the contrary, all
of the following apply to the interpretation of this Agreement:
(A) The plural and singular words each include the other.
(B) The masculine, feminine and neutral genders each include the others.
(C) The word “or” is not exclusive, and the words “includes” and “including” are
illustrative, not limiting.
(D) References to the Parties include their respective successors and permitted
assignees.
(E) References to matters “arising” (or which “arise” or “arises”) “out of this
Agreement” include matters which arise in connection with this Agreement or have
a causal connection with or which flow from this Agreement or which would not
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have arisen or occurred but for the entering into this Agreement or the performance
of or failure to perform obligations under this Agreement.
(F) The headings in this Agreement are included for convenience and do not affect the
construction or interpretation of any provision of, or the rights or obligations of a
Party under, this Agreement.
(G) A capitalized derivative or other variation of a defined term has a corresponding
meaning and must be construed accordingly.
(H) If a conflict exists between any provisions of this Agreement as they apply to a
Party, the provision that imposes the more stringent obligation on that Party
prevails to the extent of the conflict.
(I) Where provision is made for agreement or the giving of notice, approval, or
consent by any Party, unless otherwise specified, the agreement, notice, approval,
or consent must be in writing.
1.3 Exhibits.
(A) All exhibits and schedules that are attached to the body of this Agreement are an
integral part of, and are incorporated by reference into, this Agreement, and consist
of:
(1) Error! Reference source not found.
(2) Exhibit B – Deed
(3) Exhibit C –
(4) Exhibit D-
(5) Exhibit E –
(6) Exhibit F – Termination Agreement
(B) If a conflict exists between the body of this Agreement and the Exhibits or
schedules, the body prevails to the extent of the conflict.
2. SALE AND PURCHASE OF ASSETS, PURCHASE PRICE AND PAYMENTS
2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, and for the
consideration required in this Agreement, Seller agrees to sell, assign, and convey, and
Purchaser agrees to purchase and acquire, all of Seller’s right, title, and interest, if any, in
and to the Property.
2.2 Agreement to Convey. Seller agrees to sell and convey, and Purchaser agrees to purchase
and accept, on the Closing Date, a fee simple title to the Property by way of a Deed, to be
executed and delivered by Seller, and which will be subject to the Permitted Exceptions
affecting or encumbering the Property.
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2.3 Use Restrictions and Environmental Covenants. Purchaser is aware that there are
existing use restrictions with respect to the Property created in the Vesting Deed and that
as a result thereof, the Property may not be used for educational or hospital purposes nor
will the groundwater within the Property be used for any potable purposes whatsoever. In
addition, the Property to be sold from Seller to Purchaser will have the use restrictions and
environmental covenants as set forth in the Deed. Such use restrictions and environmental
covenants limit the use of the Property for mixed use development consisting of
recreational fields (including ancillary uses such as dugouts, locker rooms, batting cages,
restrooms, concession stands, bleachers, etc.), commercial (including restaurants and retail
stores), parking, office and hotel (including hotel amenities and conference centers) uses.
Such use restrictions will specifically prohibit use of the Property for residential purposes
as well as prohibit the use of groundwater from the Property for any purpose.
2.4 Purchase Price. The Purchase Price for the Property (the “Purchase Price”) is the sum of
US$4,200,000.00 cash.
2.5 Deposit.
(A) Initial Deposit. Within five (5) Business Days of the Effective Date, upon the
execution and delivery of this Agreement by both Seller and Purchaser, Purchaser
shall, by federal wire transfer, deposit the sum One Hundred Thousand Dollars
(US$100,000.00) (the “Initial Deposit”) into the escrow account of Escrow Agent.
If Purchaser fails to make the Initial Deposit in accordance with the foregoing, by
3:00 p.m. Local Time on or before the 3rd Business Day after the Effective Date,
this Agreement will automatically terminate and after that point neither Party will
have any further rights, obligations, or liability, except as otherwise expressly
described in this Agreement.
(B) Additional Deposit. Within five (5) Business Day of the delivery of the Notice to
Proceed to Seller, Purchaser shall, by federal wire transfer, deposit the sum of
Twenty-Five Thousand Dollars (US$25,000.00) (the “Additional Deposit”) into
the escrow account of Escrow Agent. If Purchaser will fail to make the Additional
Deposit in accordance with the foregoing, by 5:00 p.m. Local Time on or before
the 1st Business Day after the delivery of the Notice to Proceed to Seller, this
Agreement will automatically terminate and after that point neither Party will have
any further rights, obligations, or liability under this Agreement, except as
otherwise expressly set forth in this Agreement.]
(C) Maintenance of Deposit. The Initial Deposit will be held by the Escrow Agent in
a non-interest-bearing account which is insured by the Federal Deposit Insurance
Corporation. Provided that Purchaser has not terminated this Agreement pursuant
to Sections 3.4, 3.7(B), or 3.8(B), the Deposit(s) will become non-refundable,
subject only to the provisions of Sections 12, 13.1 and 13.2.
2.6 Independent Contract Consideration. Contemporaneously with the delivery of the Initial
Deposit to the Escrow Agent, Purchaser will deliver to Seller the sum of US$100.00 (the
“Independent Contract Consideration”), which Independent Contract Consideration
will be retained by Seller in all instances, whether or not Closing occurs. If Closing does
occur, the Independent Contract Consideration will be applied against the Purchase Price.
The amount of the Independent Contract Consideration has been bargained for and agreed
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to as consideration for Seller’s execution and delivery of this Agreement and for the rights
and privileges granted to Purchaser in this Agreement, including all rights granted to
Purchaser to terminate this Agreement during certain periods set out in this Agreement.
2.7 Payment. Purchaser will pay to the Escrow Agent the Adjusted Purchase Price, on or
before 3:00 p.m., Local Time, at least 1 Business Day prior to the Date of Closing. Escrow
Agent will then wire the Adjusted Purchase Price in immediately available funds to the
bank account(s) as Seller may designate. The Deposit will be paid by the Escrow Agent to
Seller at Closing and credited against the Purchase Price. The Purchase Price will also be
subject to further adjustments for prorations and credits required to be made in accordance
with this Agreement.
3. INSPECTIONS AND APPROVALS
3.1 Inspections. Purchaser may conduct the inspections and studies described in this Section 3
during the Due Diligence Period. The City, as Purchaser, intends that Montierre will take
title directly from Seller at Closing and Montierre will subsequently develop the Property
for the intended use pursuant to a separate agreement between the City and Montierre. The
City, as Purchaser, intends to assign this Agreement to Montierre at or prior to the
expiration of the Due Diligence Period. As a result thereof, the City, as Purchaser, does
not intend to enter upon the Property prior to Closing to conduct any inspections of the
Property; instead, the City and Montierre intend that Montierre will conduct the inspections
on the Property. All inspections done by Montierre prior to the assignment to Montierre
will be deemed to be performed by Montierre as the agent of the City, as Purchaser.
3.2 Access to the Property and Indemnification by Purchaser.
(A) During the Due Diligence Period, Seller will permit Purchaser and Purchaser’s
agents and representatives access to the Property for the purpose of conducting
Inspections as Purchaser will deem necessary to determine the feasibility of the
Property for Purchaser’s intended use; provided however, that if Purchaser intends
to conduct Invasive Testing, Purchaser will abide by all requirements set forth in
Section 3.2(D). Before Purchaser enters the Property to perform Inspections,
Purchaser will give Seller five (5) Business Days’ notice and, at Seller’s option, a
representative of Seller may accompany Purchaser and/or Purchaser’s
representative. Purchaser will be solely responsible for the conduct of Purchaser’s
representatives on and adjacent to the Property and will assume and pay for all
expenses incurred in connection with the Inspections.
(B) Purchaser will return the Property to substantially the same condition existing
before entry by Purchaser’s representatives, including proper abandonment of any
wells installed by Purchaser or other similar subsurface investigations. Purchaser
will be deemed the generator of and solely responsible for the proper management,
removal and prompt disposal of waste generated during its Inspections (“IDW”)
all in accordance with Applicable Law. All IDW will be removed within sixty (60)
days of the generation thereof and manifests for IDW will identify Purchaser as
the generator, and Purchaser will indemnify Seller against any Claim associated
with Purchaser having disposed of such IDW. Purchaser agrees to select a licensed
disposal facility that meets federal, state, and local laws and requirements with
respect to the disposal of IDW.
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(C) Except as otherwise prohibited by laws governing disclosure of public documents,
including, but not limited to, Chapter 119, Florida Statutes, to the extent applicable
to any “public record,” Purchaser will keep confidential the information resulting
from the Inspections and will deliver to Seller copies of all reports, surveys, and
studies generated by the Inspections promptly after receipt. Purchaser may disclose
this confidential information to Purchaser’s representatives to the extent each
needs to know the confidential information for the sole purpose of evaluating the
Property, provided Purchaser takes all reasonable measures to assure that
Purchaser’s representatives keep such information confidential. Purchaser will not
contact any Government Entity regarding the results of any testing performed on
the Property unless required by Applicable Law and only after Purchaser has given
Seller not less than seven (7) Business Days written notice prior to any such
contact. At Seller’s sole option and to the extent allowed by Environmental Law,
if Purchaser does not purchase the Property in accordance with the terms and
conditions in this Agreement, Purchaser will either destroy all reports, surveys, and
studies generated by the Inspections, or deliver the results to Seller.
(D) Neither Purchaser nor Purchaser’s representatives will conduct any intrusive,
destructive, or invasive sampling or chemical analysis of the Property or any
portion of the Property as part of its Due Diligence investigation, including any (1)
invasive or intrusive geotechnical, environmental or other inspections with respect
to the Property or any portion thereof (including any drilling, boring, cutting,
disassembling, or removing of the Property or any portion thereof) and (2)
biological sampling or analysis, whether of air quality, soil, water samples, or
otherwise (collectively “Invasive Testing”) without first obtaining Seller’s written
consent, which may be granted or withheld in Seller’s sole and absolute discretion.
To seek Seller’s written consent for any Invasive Testing, Purchaser must submit
to Seller a scope of work including a description of the proposed physically
invasive testing, the constituents included in any sampling and analysis, the
analytical methodology to be used, the handling of any wastes potentially
generated or derived from the Invasive Testing, and the location of such Invasive
Testing. Purchaser’s proposed scope of work will be provided to Seller at least ten
(10) Business Days prior to the proposed date of commencement of the Invasive
Testing. If applicable, Purchaser shall utilize sampling procedures, analytical
methodologies, and data protocols in performing analyses that meet the standards
of the State of Florida and use laboratories that are certified to complete the
analyses. Purchaser must give Seller the opportunity to conduct split sampling for
any Invasive Testing, which Seller may conduct at Seller’s sole discretion. All tests
and investigations will take place during Seller’s business hours whenever
feasible, unless otherwise requested by Seller. Any Invasive Testing consented to
by Seller will be performed in accordance with all Applicable Laws (including all
permit requirements of local, state and/or federal agencies) and all terms and
conditions of Section 3.2. In the event Purchaser conducts any Invasive Testing,
Purchaser must give Seller the opportunity to conduct split sampling for such
Invasive Testing, which Seller may do at Seller’s sole discretion. In the event
Purchaser conducts any Invasive Testing, Purchaser will provide Seller with a true
and correct copy of any Invasive Testing reports or data as well as any amendments
or modifications, promptly upon receipt by Purchaser at no cost to the Seller and
without representation, warranty, or liability on the part of Purchaser.
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(E) Purchaser will indemnify, defend, and hold Seller harmless from any loss,
injury, liability, damage, or expense, including reasonable attorneys’ fees and
costs which Seller may incur as a result of (1) any act or omission of Purchaser
or its agents or representatives arising in connection with any tests or
inspections conducted by Purchaser or its agents or representatives or (2) the
failure of Purchaser to restore the Property in accordance with this Section.
(F) During the Due Diligence Period and before entering the Property for any purpose,
Purchaser, or Purchaser’s consultant performing any Invasive Testing or any other
act authorized in this Section 3, will procure and maintain, at its own expense,
during the performance of the Inspections, policies of insurance provided by
insurance companies admitted to do business in the State of Florida with A.M. Best
& Company ratings of at least A- / VIII and which are reasonably acceptable to
Seller, which policies are primary as to any other existing, valid, and collectible
insurance insuring Purchaser against loss or liability caused by or with the
performance of this Agreement by Purchaser, or its agents, consultants,
contractors, or subcontractors, in amounts not less than:
(1) Commercial General Liability Insurance with a minimum combined single
limit of liability of at least US$1,000,000 and a general aggregate limit of
at least US$2,000,000.
(2) Comprehensive Automobile Liability Insurance or Business Auto Policy
covering all owned, hired or otherwise operated non-owned vehicles, with
a minimum combined single limit of at least US$1,000,000 each
occurrence for Bodily Injury and Property Damage.
(3) Workers’ Compensation Insurance as required by Applicable Law, and
Employers’ Liability Insurance with a minimum limit of at least
US$1,000,000 per employee and at least US$1,000,000 each occurrence.
(4) Where Purchaser or a Purchaser’s agent or representative is acting as an
environmental consultant or otherwise performing professional
environmental services, a policy of environmental professional liability
insurance, having minimum limits of US$2,000,000 per occurrence with
a US$5,000,000 annual aggregate with no exclusion for pollution and/or
environmental claims.
(G) The insurance coverage required may be provided by one or more policies of
insurance issued to Purchaser or its agents, consultants, contractors, or
subcontractors, provided, however, that in order for such insurance to be
acceptable, Purchaser will contractually require such agents, consultants,
contractors, or subcontractors to indemnify, defend, and hold harmless Seller
from and against Claims and Losses to the extent of Purchaser’s obligations
provided for in this Agreement, with Seller Group named as an additional
insured to such agreements, and such insurance policies will meet the requirements
of this Section.
(H) The policies of insurance will name Seller Group as an additional insured and will
not exclude or restrict coverage based upon alleged or actual negligence of an
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additional insured. Such insurance will provide coverage for Claims and Losses
arising out of the actions of Purchaser or its agents, consultants, contractors, or
subcontractors on or about the Property while the policy is in force, regardless of
whether the Claim or Loss arises after the policy is expired. Prior to entry on the
Property during the Due Diligence Period, Purchaser will deliver to Seller a
certificate of insurance and additional insured endorsements evidencing the
existence of the policies and further evidencing that coverage will not be canceled
or materially changed prior to 30 days’ advance written notice to Seller.
Subrogation against Seller and Seller Group will be waived as respects all of the
insurance policies required above (including policies of any subcontractor). The
insurance required in no way limits or restricts any indemnity by Purchaser or its
agents, consultants, contractors, or subcontractors under this Agreement nor by
any limitation placed on the indemnity as a matter of Applicable Law.
(I) Seller, in its sole discretion, has the right to suspend or terminate Purchaser’s or
Purchaser Group member’s access at any time for any violation of Section 3.2 or
any action or omission by Purchaser personnel that may create a risk of harm of
any type.
3.3 Purchaser’s Acceptance or Rejection prior to the Expiration of the Due Diligence
Period.
(A) If Purchaser gives Seller a notice to continue on or before the expiration of the Due
Diligence Period (the “Notice to Proceed”), then Purchaser will be deemed to have
elected to proceed under this Agreement. If the Due Diligence Period expires
without Purchaser timely delivering the Notice to Proceed to Seller for any reason,
then this Agreement will automatically terminate, subject to (1) the immediate
return of all copies of all Property Documents to Seller, and (2) delivery of the
Deposit to Purchaser (subject to the provisions of Section 13.3), at which point
neither Party will have any further obligation or liability to the other Party under
this Agreement, except as otherwise expressly provided in this Agreement.
(B) By delivery of the Notice to Proceed to Seller, Purchaser will be deemed to have
approved and accepted the Property and to have agreed to complete the transaction
contemplated by this Agreement, and the Deposit will be nonrefundable, subject
only to the provisions of Sections 11 and 13.3.
3.4 Seller’s Termination Right. Seller will be entitled to terminate this Agreement also based
on the results of any findings from the Due Diligence undertaken by Purchaser if for any
reason such findings cause Seller in its sole and absolute discretion to have any concerns
about the environmental condition of the Property or this Agreement. If that occurs, Seller
will be entitled to terminate this Agreement by providing notice of such termination to
Purchaser by the later to occur of (A) the last day of the Due Diligence Period or (B) thirty
(30) Business Days after Seller’s receipt of the applicable Due Diligence findings. In the
event Seller fails to terminate this Agreement timely in accordance with this Section after
Seller’s receipt of a Due Diligence finding, Seller will be irrevocably deemed to have
waived its right to terminate this Agreement based on the Due Diligence finding, but no
such waiver will apply to any subsequent Due Diligence findings received by Seller. Upon
termination of this Agreement in accordance with the provisions of this Section 3.4, and
notwithstanding any provision in this Agreement to the contrary, the Deposit will be
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promptly released or returned to Purchaser and Seller will pay to Purchaser an amount
equal to Purchaser’s out of pocket costs paid to unrelated entities for performing Due
Diligence of the Property, not to exceed $50,000, upon presentation to Seller of receipts
for such out of pocket costs, whereupon neither Party will have any further duty or
obligation under this Agreement except for those obligations which are expressly stated to
survive such termination.
3.5 Survival. The provisions of Sections 3.2, 3.3 and 3.4 will survive termination of this
Agreement or the Closing, as applicable.
3.6 Inspection of Property Documents. The Parties acknowledge that Seller has provided
Purchaser with access to the Data Room which contains the Property Documents. Within
five (5) Business Days after the Effective Date, to the extent not already in the Data Room,
Seller will include in the Data Room all of Property Documents in the possession of Seller
to Seller’s Knowledge for Purchaser’s review and inspection. Purchaser acknowledges,
understands, and agrees that the Property Documents may have been prepared by parties
other than Seller and that Seller makes no representation or warranty whatsoever, express
or implied, as to the completeness, content, or accuracy of the Property Documents. The
provisions of this Section will survive Closing, or the early termination of this Agreement.
All Property Documents will be kept confidential in accordance with Section 16.10.
3.7 Survey.
(A) In connection with Purchaser’s access to the Data Room, Seller has made available
to Purchaser for its inspection and review a copy of a Prior Survey. Purchaser will
have the option of updating the Prior Survey, if any, or obtaining a new survey of
the Property. On or before the date that is ten (10) Business Days after the date that
Purchaser receives the Survey, but in no event later than fifteen (15) Business Days
before the end of the Due Diligence Period, should Purchaser have objections to
any matters shown on the Survey, Purchaser will deliver to Seller, in writing, a
letter (the “Survey Objection Letter”) explaining the objections to any matters
shown on the Survey. Purchaser’s failure to timely object to any such matters will
be deemed to constitute Purchaser’s approval.
(B) If Purchaser timely objects to any matters shown on the Survey, then Seller will
have the right, but not the obligation, to agree in writing to cure before Closing
such objections, or to decline to cure such objections. Seller will have until the
Survey Cure Date to agree in writing to cure before Closing, or decline to cure,
Purchaser’s objections to the Survey in a manner acceptable to Purchaser. If Seller
elects not to cure, or fails to timely respond to the Survey Objection Letter, Seller
will be deemed to have elected not to cure, in which event, Purchaser will, on or
before five (5) Business Days after the Survey Cure Date, either (1) terminate this
Agreement by delivery of written notice to Seller and Escrow Agent, and Escrow
Agent will release and return the Deposit to Purchaser or (2) waive in writing to
Seller its objections to the Survey. Purchaser’s failure to timely deliver to Seller
and Escrow Agent a written notice of termination or waive its objection to the
Survey will be deemed to constitute Purchaser’s waiver of such objections.
3.8 Title Commitment.
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(A) Seller has ordered a Title Commitment from Escrow Agent, specifying Purchaser
as the named insured and showing the Purchase Price as the policy amount. If
Purchaser has objections to any matter in the Title Commitment, Purchaser will,
within ten (10) Business Days after receiving the Title Commitment, but in no
event later than fifteen (15) Business Days before the end of the Due Diligence
Period, deliver to Seller in writing a letter (the “Title Objection Letter”)
explaining the objections to matters shown in the Title Commitment. Purchaser’s
failure to object to any such matters timely will constitute Purchaser’s approval of
them, and such matters will then become Permitted Exceptions.
(B) If Purchaser timely objects to any item in the Title Commitment, then Seller will
have the right, but not the obligation, to attempt to cure or cause to be cured before
Closing an objected item. Seller will have until the Title Cure Date to agree in
writing to cure before Closing an objected item. If Seller elects not to cure, or fails
to respond timely to Purchaser’s objections, Seller will be deemed to have elected
not to cure, in which event Purchaser will, on or before five (5) Business Days
after the Title Cure Date, either (1) terminate this Agreement by delivering to
Seller and Escrow Agent a written notice of termination, and Escrow Agent will
return the Deposit to Purchaser or (2) waive in writing to Seller its objections to
the objected items, which will then become Permitted Exceptions. Purchaser’s
failure to deliver timely to Seller and Escrow Agent a written notice of termination
or waiver of its objection to the objected items will constitute Purchaser’s waiver
of its objection to said items and such items will become Permitted Exceptions.
3.9 Title/Survey Updates. If any update to the Title Commitment issued subsequent to the
date of the Title Commitment or any update to the Survey contains exceptions, which are
not Permitted Exceptions, first appearing of record after the effective date of the Title
Commitment or after the initial date of the applicable Survey (or after updates thereto), as
applicable (“New Exceptions”), then Purchaser may object to one or more New Exceptions
by delivering an objection letter (“New Objection Letter”) to Seller within five (5) days
following Purchaser’s receipt of such update. If Purchaser fails to deliver to Seller such
New Objection Letter on or before such date, Purchaser will be deemed to have waived
any objection to the New Exceptions, and the New Exceptions will be included as
Permitted Exceptions. Seller will have until 5:00 p.m. on the date which is five (5) days
after receipt of such Purchaser’s Objection Letter (“New Exception Cure Date”) (and, if
necessary, Seller may extend the Closing Date to provide for such five (5) day period and
for an additional five (5) days following such period for Purchaser’s response), to agree in
writing to cure before Closing, or decline to cure, Purchaser’s objections to such
disapproved item. If Seller elects not to cure, or fails to timely respond to Purchaser’s New
Objection Letter, Seller will be deemed to have elected not to cure, in which event
Purchaser shall, on or before five (5) days after the New Exception Cure Date, either (i)
terminate this Agreement by delivering to Seller and Escrow Agent a written notice of
termination, whereupon Escrow Agent will release and return the Deposit (subject to the
provisions of Section 13.3 below) to Purchaser and thereupon neither Party will have any
further obligation or liability to the other Party hereunder, except as otherwise expressly
provided herein, or (ii) waive in writing its objection to the disapproved items, which will
then become Permitted Exceptions. Purchaser’s failure to timely deliver to Seller and
Escrow Agent a written notice of termination or waiver of its objection to the disapproved
items will be deemed to constitute Purchaser’s waiver of its objection to said items and
such items will become Permitted Exceptions.
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3.10 Permitted Exceptions. Purchaser will accept title to the Property at Closing, subject to the
following Permitted Exceptions:
(A) Those matters affecting or relating to the title to, or the survey of, the Property
(1) which are of record on the date of the Title Commitment or as shown on the
Survey, and which were not included in an Objection Letter timely delivered by
Purchaser; (2) which were included in an Objection Letter, but for which (a) Seller
has completed the cure, or (b) Purchaser has waived or been deemed to have
waived the cure, or (c) Seller has elected to cure and will be cured by the payment
of money at Closing; or (3) which Purchaser has otherwise approved in writing.
(B) The restrictions set forth in the Vesting Deed and the restrictions to be included in
the Deed.
(C) All matters apparent from an inspection of the Property, or which a current,
accurate survey of the Property would disclose.
(D) All dedicated roads, streets and highways;
(E) The lien of non-delinquent taxes, assessments, and other usual and customary
charges assessed against the owners of real property in the state in which the
Property is located.
(F) All matters disclosed by the Property Documents made available to Purchaser.
(G) All building and zoning laws, codes, and regulations affecting the Property,
including all proffers, special exceptions, conditions, site plan approvals, and other
similar matters, if any, relating to the zoning of the Property.
4. SELLER’S AND PURCHASER’S OBLIGATIONS PRIOR TO CLOSING
4.1 Seller’s Obligations. Until Closing, Seller or Seller’s agents or representatives will:
(A) Maintain the Property in its present condition, reasonable wear and tear, and
damage from casualty or other events beyond the control of Seller or actions by
the owner, occupant, or operator of the subsurface rights to the Property, excepted.
(B) Provide to Purchaser, promptly upon receipt, copies of any written notices relating
to the Property received by Seller or its agents or representatives from any
Government Entity or quasi-governmental instrumentality, insurance company, or
vendor, which notices are of a type not normally received in the ordinary course
of Seller’s business, or which may have a material effect upon the Property or
result in a material change in a representation or warranty made by Seller in this
Agreement.
4.2 Purchaser’s Obligations. During the Due Diligence Period, the City will designate the
Property as a Brownfield Area pursuant to the FBRA. Prior to the Date of Closing, Seller
and Purchaser will enter into a Brownfield Site Rehabilitation Agreement (“BSRA”) with
FDEP. Seller agrees to cooperate with Purchaser in its efforts to designate the Property as
a Brownfield Area and to obtain FDEP’s agreement on the terms and conditions of a BSRA.
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The Parties agree to use their best efforts to obtain FDEP’s timely approval of the BSRA
in substantial form as the Model BSRA provided in FDEP’s public website for the Florida
Brownfields Program at https://floridadep.gov/waste/waste-cleanup/content/brownfields-
program prior to Closing and that the BSRA will not become effective until Purchaser
acquires title to the Property.
5. REPRESENTATIONS AND WARRANTIES
5.1 Survival Period for Representations and Warranties. All representations and
warranties of Seller and Purchaser set forth in this Section 5 are made as of the Effective
Date through the Closing Date and will survive after the Closing Date for the Survival
Period.
5.2 Seller Representations and Warranties. Seller represents and warrants to Purchaser that
as of the Effective Date and continuing through Closing, the following statements are
accurate:
(A) Formation. Seller is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its organization and is duly qualified
to carry out its business in Delaware. Seller is qualified to do business in Florida.
(B) Authorization. Seller has (1) full corporate authority to enter into and perform
this Agreement and to consummate the transaction contemplated by this
Agreement and (2) taken all actions necessary to authorize execution, delivery, and
performance of this Agreement and the transaction contemplated by this
Agreement.
(C) Valid and Binding Obligation. This Agreement constitutes Seller’s legal, valid,
and binding obligation enforceable in accordance with its terms and conditions.
(D) No Conflict with Articles of Incorporation and Other Governing Documents
of Seller. Neither this Agreement nor the performance of this Agreement
constitutes a default, violation, or conflict with the articles of incorporation, by-
laws, or governing documents of Seller.
(E) No Litigation or Arbitration Proceedings. Seller is not a party to any litigation,
arbitration, or administrative proceedings in relation to the Property that might
reasonably be expected to delay, prevent, or materially hinder the consummation
of the transaction contemplated by this Agreement or materially adversely affect
the title to or value of any of the Property.
(F) FIRPTA. Seller is not an entity named on the List of Specially Designated
Nationals and Blocked Persons maintained by the U.S. Department of Treasury, as
last updated prior to (or as amended after) the date of this Agreement. Seller is in
compliance with the terms of the USA Patriot Act of 2001, as amended, the
regulations promulgated under the foregoing law, Executive Order No. 13224 on
Terrorist Financing, all sanctions programs administrated by the U.S. Department
of Treasury’s Office of Foreign Asset Control or Financial Crimes Enforcement
Network, and all other laws, regulations, executive orders, or government
programs designed to combat terrorism or money laundering, or the effect of any
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of the foregoing laws, regulations, orders, or programs, if applicable, on the
transaction contemplated by this Agreement.
(G) Non-Foreign Status. Seller is not a “foreign person” within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended.
(H) Knowledge. For purposes of Section 5.2, Seller will be deemed to be aware of
matters only within Seller’s Knowledge.
5.3 Purchaser Representations and Warranties. Purchaser represents, warrants, and
covenants to Seller that, as of the Effective Date and continuing through Closing, the
following statements are accurate:
(A) Formation. Purchaser is a corporation, limited liability company or municipality
duly organized, validly existing, and in good standing under the laws of the State
of Florida.
(B) Authorization. Purchaser (1) has full power and authority to enter into and
perform this Agreement and (2) has taken all actions necessary to authorize
execution, delivery, and performance of this Agreement and the transaction
contemplated by this Agreement.
(C) Valid and Binding Obligation. This Agreement constitutes Purchaser’s legal,
valid, and binding obligation enforceable in accordance with its terms and
conditions.
(D) No Conflict with Governing Documents of Purchaser. Neither this Agreement
nor the performance of this Agreement constitutes a default, violation, or conflict
with the articles of incorporation, by-laws, governing documents or Applicable
Law governing Purchaser, or any license, permit, or consent granted to or by
Purchaser, or any material provision of any agreement or instrument to which
Purchaser is a party and will not violate or be in conflict with any judgment, decree,
order, statute, rule, or regulation.
(E) No Litigation or Arbitration Proceedings. Purchaser is not a party to any
litigation, arbitration, or administrative proceedings that might reasonably be
expected to delay, prevent, or materially hinder the consummation of the
transaction contemplated by this Agreement.
(F) Consents. Purchaser has taken all requisite action and obtained all requisite
consents, releases, and permissions required for entering into this Agreement, and
the instruments and documents referenced in this Agreement or required under any
covenant, agreement, encumbrance, law, or regulation with respect to the
obligations required under this Agreement, and no consent of any other party is
required for the performance by Purchaser of its obligations under this Agreement.
(G) Breach. Neither the execution of this Agreement nor the consummation of the
transactions contemplated by this Agreement does now constitute or will result in
a breach of, or a default under, any agreement, document, instrument, or other
obligation to which Purchaser is a party or by which Purchaser may be bound, or
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any law, statute, ordinance, rule, governmental regulation, or any writ, injunction,
order, or decree of any court or governmental body, applicable to Purchaser or to
the Property.
(H) Bankruptcy. No petition in bankruptcy (voluntary or otherwise), assignment for
the benefit of creditors, or petition seeking reorganization or arrangement or other
action under Federal or state bankruptcy law, is pending against or, to the best of
Purchaser’s knowledge, contemplated by Purchaser.
(I) FIRPTA. Purchaser is not an entity named on the List of Specially Designated
Nationals and Blocked Persons maintained by the U.S. Department of Treasury, as
last updated prior to (or as amended after) the date of this Agreement. Purchaser is
in compliance with the terms of the USA Patriot Act of 2001, as amended, the
regulations promulgated under the foregoing law, Executive Order No. 13224 on
Terrorist Financing, all sanctions programs administrated by the U.S. Department
of Treasury’s Office of Foreign Asset Control or Financial Crimes Enforcement
Network, and all other laws, regulations, executive orders or government programs
designed to combat terrorism or money laundering, or the effect of any of the
foregoing laws, regulations, orders or programs, if applicable, on the transactions
contemplated by this Agreement.
(J) Non-Foreign Status. Purchaser is not a “foreign person” within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended.
(K) Pre-Agreement Violations and Reporting. Purchaser represents and warrants
that no event has occurred prior to the Effective Date, which if it had occurred after
the Effective Date, would be a violation of Section 18.1. Purchaser will
immediately notify Seller of any violation of Sections 18.1 of the occurrence of
any event prior to the Effective Date which, if it had occurred after the Effective
Date, would constitute a violation of Section 18.1.
(L) Evidence of Capacity. Purchaser is not undergoing any insolvency or receivership
proceedings.
5.4 Broker. Seller and Purchaser each represents to the other that there has been no dealings,
negotiations, or consultations with any broker, representative, employee, agent, or other
intermediary in connection with the sale of the Property, except that Seller has retained the
services of Seller’s Broker. Seller will be solely responsible for paying the fees and
commissions owed to Seller’s Broker pursuant to a separate written agreement. Seller and
Purchaser mutually agree to indemnify, defend, and hold the other free and harmless from
the claims of any other broker(s), representative(s), employee(s), agent(s), or other
intermediary(ies) claiming to have represented Seller or Purchaser, respectively, or
otherwise to be entitled to compensation in connection with this Agreement or in
connection with the sale of the Property. This mutual indemnity will survive Closing and
any termination of this Agreement.
6. PROPERTY CONDITION
6.1 EXISTING CONDITIONS.
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(A) The Property has been used for agricultural farming operations. Agricultural
research activities also previously occurred on portions of the Property, including
field testing of agricultural chemicals through their application to test plots on the
Property and to container-grown plants in onsite greenhouses on the Property.
Purchaser expressly acknowledges the presence of arsenic and other chemicals
consistent with such use are present, or have been present in the past, in soils and/or
groundwater on the Property in concentrations exceeding CTLs. Purchaser further
acknowledges that it has been provided access to a data room that includes
information relating to the presence of soil and/or groundwater conditions
including in concentrations exceeding CTLs and that Purchaser has reviewed said
information. Purchaser acknowledges that at Closing, Seller will cause to be filed
of record in the Public Records of Orange County, Florida the Disclosure Notice
to put third parties on notice of the presence of arsenic and such other chemicals
in the soils and/or groundwater on the Property in concentrations exceeding CTLs.
(B) Purchaser acknowledges that it has been informed by Seller that the Improvements
may contain asbestos and, or, lead based paint.
(C) Purchaser acknowledges that located on the Property are wells historically used
for sampling groundwater and a water production well (collectively the
“Monitoring Wells”). Seller will be responsible at its cost for abandoning such
Monitoring Wells. To the extent that all Monitoring Wells have not been properly
abandoned prior to Closing, Seller and Purchaser will enter into the Access
Agreement at Closing to provide Seller’s affiliate, Chevron Environmental
Management Company, with access to the Property after Closing for the purpose
of abandoning such Monitoring Wells.
(D) Purchaser is aware that any development of the Property is presently subject to the
terms and provisions of the Development Agreement by and between Seller and
Purchaser. At Closing, Seller and Purchaser will enter into a Termination
Agreement terminating the Development Agreement, which termination will
provide that Seller has no further obligations with respect to the Development
Agreement.
6.2 DISCLAIMER. PURCHASER ACKNOWLEDGES AND AGREES THAT,
OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN
ANY DOCUMENT EXECUTED BY SELLER AT CLOSING, THE PROPERTY IS
TO BE SOLD TO AND ACCEPTED BY PURCHASER “AS IS” AND “WHERE IS,”
WITH ALL FAULTS, IF ANY, INCLUDING THE ENVIRONMENTAL
CONDITION OF THE PROPERTY, AND, OTHER THAN AS SPECIFICALLY
SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT EXECUTED BY
SELLER AT CLOSING, SELLER DISCLAIMS ANY AND ALL WARRANTIES,
AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, OF ANY KIND TO PURCHASER INCLUDING WARRANTIES
RELATING TO: (A) THE PHYSICAL CONDITION OF THE PROPERTY, AND
IMPROVEMENTS, IF ANY, AND ANY PERSONAL PROPERTY; (B) THE
HABITABILITY OF THE PROPERTY, OR IMPROVEMENTS; (C) THE
SUITABILITY, MERCHANTABILITY, OR DESIGN OF THE PROPERTY FOR
A PARTICULAR PURPOSE; (D) THE PRESENCE OR ABSENCE OF OR
CONTAMINATION BY HAZARDOUS MATERIALS AT, ON, UNDER, OR
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EMANATING TO OR FROM THE PROPERTY; (E) THE COMPLIANCE OF
THE PROPERTY WITH LAWS AND REGULATIONS, INCLUDING
ENVIRONMENTAL LAW AND (F) THE SOIL CONDITIONS, DRAINAGE,
FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS
EXISTING IN, ON, OR UNDER THE PROPERTY. PURCHASER
ACKNOWLEDGES THAT, OTHER THAN AS SPECIFICALLY SET FORTH IN
THIS AGREEMENT OR IN ANY DOCUMENT EXECUTED BY SELLER AT
CLOSING, SELLER MAKES NO, AND EXPRESSLY DISCLAIMS ANY,
WARRANTIES OR REPRESENTATIONS CONCERNING THE ACCURACY OR
COMPLETENESS OF ANY OF THE PROPERTY DOCUMENTS.
6.3 ACKNOWLEDGMENT OF INSPECTION. PURCHASER COVENANTS,
REPRESENTS AND WARRANTS TO SELLER THAT: (A) PURCHASER HAS
INSPECTED OR WILL INSPECT THE PROPERTY, INCLUDING THE
IMPROVEMENTS ON THE PROPERTY AND THE PERSONAL PROPERTY, IF
ANY, AND ALL MATTERS RELATING TO THE PROPERTY WHICH
PURCHASER DESIRES; (B) NEITHER SELLER NOR ANYONE ON SELLER’S
BEHALF HAS MADE, OR IS MAKING, ANY WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO THE PROPERTY OTHER THAN
THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY
DOCUMENT EXECUTED BY SELLER AT CLOSING; (C) PURCHASER IS
RELYING SOLELY ON PURCHASER’S OWN INVESTIGATION OF THE
PROPERTY AND ALL MATTERS PERTAINING TO ITS INVESTIGATION,
INCLUDING THE ENVIRONMENTAL CONDITION OF THE PROPERTY; AND
(D) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
PURCHASER IS PURCHASING THE PROPERTY “AS IS.”
6.4 THIRD PARTY CLAIMS. PURCHASER ACKNOWLEDGES AND AGREES
THAT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT WILL SELLER BE LIABLE FOR ANY CLAIMS BY
PURCHASER OR ANY THIRD PARTY ATTRIBUTABLE TO OR ARISING
FROM CONSTRUCTION ON THE PROPERTY FOLLOWING THE CLOSING
DATE THAT INVOLVES SUBSURFACE EXCAVATION, SOIL MOVEMENT,
OR HANDLING, TREATMENT, OR DISPOSAL OF SOIL OR GROUNDWATER.
6.5 INSPECTIONS. Purchaser covenants, represents, and warrants that: (A) Purchaser
has inspected or will inspect the Property and all matters relating to the Property
which Purchaser desires; (B) neither Seller nor anyone on Seller’s behalf has made,
or is making, any warranties or representations respecting the Property other than
those expressly identified in this Agreement, if any; and (C) in evaluating the
transaction contemplated by this Agreement, Purchaser is relying solely on
Purchaser’s own investigation of the Property and all matters pertaining to it,
including the Environmental Condition of the Property.
6.6 OBLIGATION TO MAKE REPAIRS. Purchaser acknowledges and agrees that:
(a) any reports, repairs or work required by Purchaser are the sole responsibility of
Purchaser; (b) Seller has no obligation to make any changes, alterations, or repairs
to the Property, or to cure any violations of Applicable Law or to comply with the
requirements of any insurer; and (c) Purchaser is solely responsible for obtaining any
certificate of occupancy or any other approval or permit necessary for transfer or
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occupancy of the Property, and for any repairs or alterations necessary to obtain such
certificate, approval, or permit, all at Purchaser’s sole cost and expense.
6.7 RADON GAS. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT
QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL
AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING
MAY BE OBTAINED FROM THE COUNTY PUBLIC HEALTH DEPARTMENT.
6.8 RESPONSIBILITY. Purchaser acknowledges that it is purchasing the Property
without any environmental indemnity of any kind from Seller for any Environmental
Condition or Environmental Obligation at or relating to the Property except for
Seller’s Retained Liabilities. Purchaser further acknowledges and agrees that
Purchaser will be solely responsible for the Environmental Condition of the Property,
and for the Environmental Obligations, upon the Close of Escrow, as further detailed
in this Agreement.
6.9 SURVIVAL. The acknowledgements and agreements of Purchaser in Section 6 will
survive the Closing and will not be deemed merged into any instrument or conveyance
delivered at the Closing.
7. PURCHASER’S RELEASE AND INDEMNIFICATION
7.1 INTENT OF INDEMNITY AND RELEASE PROVISIONS. The Parties have
allocated between them certain risks and responsibility for Claims related to the
Property and this Agreement as set out below. Upon Closing, the indemnities set out
below are the exclusive remedy for any Claim based upon or relating to this
Agreement, regardless of the manner in which any Claim is characterized or pleaded;
provided, however, this does not affect a Party’s rights to non-monetary equitable
relief under Section 14 of this Agreement.
7.2 PURCHASER’S RELEASE. Subject to the Seller’s Retained Liabilities for which
Purchaser will have no liability and subject to Seller’s representations and warranties
under Section 5, Purchaser, for itself and Purchaser Group members release Seller
Group members from any Claim or Loss (including reasonable outside attorneys’
fees), whether known or unknown, liquidated or contingent, asserted against or
incurred by any Purchaser Group member, and that arises from, is in connection
with, or is related in any manner to the following (collectively, the “Released
Matters”):
(A) Acts or omissions of Purchaser or Purchaser Group with respect to, or
occurring on, the Property whether before or after the Closing Date.
(B) The ownership, control, use, possession, or operation of the Property.
(C) Any condition existing or occurring in, on, under, or within the Property,
including the following:
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(1) The death or injury of any Person, including, any Purchaser Group
member.
(2) The damage or destruction of the Property or any personal property
on the Property.
(3) The violation or alleged violation of any federal, state, local, or
municipal law, rule, regulation, order, judgment, decree, or other
requirement, including, requirements under permits, licenses,
consents, and approvals.
(4) The existence, assessment, or remediation of Contamination upon,
under, in, or emanating to or from the Property.
(5) Emissions, discharges, releases, or threatened releases, or the
presence, generation, manufacturing, processing, distribution, use,
treatment, storage, disposal, transport, labeling, advertising, sale,
display, or handling, of Contamination.
(6) Any response costs any Seller Group or Purchaser Group members
may incur with respect to the Property under any Environmental
Law.
(7) Any cause of action or theory of any kind because of, in connection
with, or related to, the ownership and operation of the Property.
(8) Environmental Conditions, whether the Environmental Conditions
existed before or after the Closing.
(D) Seller Group’s former operations on the Property or any adjacent property.
(E) Any special, indirect, or consequential damages by Purchaser, Purchaser
Group, or any third party, including Claims or Losses for loss of use, rents,
anticipated profit, or business opportunity, or business interruption,
construction delays, diminution in value, loss of goodwill by Purchaser, or
mental or emotional distress, or fear of injury, disease or illness, or trespass,
nuisance, or otherwise.
(F) Purchaser’s or its agent’s, contractor’s, or employee’s activities and
inspections regarding the Property.
(G) Purchaser’s or Purchaser Group’s construction or development activities on
the Property.
(H) Purchaser’s performance or failure to perform any due diligence reviews and
surveys of the Property, including human health risk assessments or similar
studies.
(I) Any environmental investigations, environmental claims, cleanup costs, or
any Claims or action attributable or arising from subsurface excavation, soil
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movement, or special handling, treatment, or disposal of soil or groundwater,
vapor intrusion protections, or engineered controls.
(J) Any information contained in, or that should have been contained in, the
Property Documents.
7.3 Released Matters do not extend to matters determined by final non-appealable
judgment to have been caused by the gross negligence or willful misconduct of a Seller
Group member, except that negligence of any type occurring prior to Closing with
respect to matters described in Sections 7.2(D) 7.2(E) is not excluded from the
definition of Released Matters.
7.4 Purchaser recognizes that there is a risk that, after Closing, Purchaser may suffer a
Loss or Claim that is in some way caused by the Released Matters, and Purchaser
agrees that other than Seller’s Retained Liabilities, Purchaser Group members
assume this risk and that this release will apply to all the unknown or unanticipated
Losses or Claims. If this release is judicially determined to exceed that permitted by
Applicable Law, then the release will be construed so as to preserve the maximum
release permitted by Applicable Law.
7.5 NO ACTIONS OR PROCEEDINGS. In no event will Purchaser or any Person that
is part of Purchaser Group file or pursue any legal action, proceeding, or arbitration
against Seller or any other Seller Group member with respect to any of the Released
Matters.
7.6 PURCHASER’S INDEMNITY. PURCHASER AND, WITH RESPECT TO ANY
ASSIGNEE OF THE CITY OF OCOEE, PURCHASER GROUP WILL
INDEMNIFY, DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO
SELLER), SAVE AND HOLD HARMLESS SELLER GROUP MEMBERS FROM
ANY CLAIM OR ANY LOSS, INCLUDING, ALL RELEASED MATTERS
EXCEPT SELLER’S RETAINED LIABILITIES. A CLAIM OR LOSS WILL
INCLUDE ANY CLAIMS OR ANY LOSSES AS TO STRICT LIABILITY
CLAIMS, INCLUDING THOSE UNDER THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
(“CERCLA”); AND ANY REGULATORY OBLIGATIONS THAT WOULD
REQUIRE REMEDIATION ACTIVITIES WITHOUT REGARD TO THE POINT
IN TIME THAT THE CONTAMINATION OCCURRED. IF THIS INDEMNITY IS
JUDICIALLY DETERMINED TO EXCEED THAT PERMITTED BY
APPLICABLE LAW, THEN THE INDEMNITY WILL BE CONSTRUED AS TO
PRESERVE THE MAXIMUM INDEMNITY PERMITTED BY APPLICABLE
LAW. IF ANY REGULATORY OBLIGATIONS REQUIRE REMEDIATION
ACTIVITIES IN CONNECTION WITH THE PROPERTY. NOTHING IN THIS
AGREEMENT PRECLUDES PURCHASER FROM RECOVERING COSTS
FROM PARTIES THAT ARE NOT SELLER GROUP MEMBERS.
7.7 COVENANTS RUNNING WITH THE LAND. The release and indemnity provisions
set forth under Section 7 will, to the extent legally permissible, be covenants running
with the land and will be binding on all future owners of the Property. Any
conveyance, transfer, or assignment of all or part of the Property by Purchaser, its
successors or assigns, in which the grantee, transferee, or assignee fails to expressly
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assume the obligations of Purchaser under Section 7 will be deemed null and void, ab
initio. Purchaser further agrees to cause the provisions of this Section to be included
in all subsequent sales or transfers of any interest in the Property, and to cause all
purchasers or transferees of the Property to expressly acknowledge and assume all of
Purchaser’s obligations.
7.8 NO LIMITATION ON PURCHASER’S INDEMNITY AND DEFENSE
OBLIGATIONS. Nothing set forth in Section 7 will be construed to limit or narrow
in any manner any indemnity and defense obligations or covenants of Purchaser
which are set forth elsewhere in this Agreement.
7.9 SURVIVAL. The obligations of Purchaser under Section 7 will survive the Closing.
At Closing, the Parties will enter into the Release and Indemnity Agreement to be
recorded in the Public Records of Orange County, Florida.
8. CONDITIONS PRECEDENT TO CLOSING
8.1 Conditions Precedent to Seller’s Obligation to Sell. The following are the Conditions
Precedent to Seller’s obligation to sell the Property to Purchaser pursuant to this
Agreement, any of which may be waived (in whole or in part) by Seller (collectively,
“Conditions Precedent”):
(A) Purchaser has performed and complied in all material respects with the terms and
conditions of this Agreement required to be performed or complied with by
Purchaser at or prior to Closing, including without limitation, designating the
Property as a Brownfield Site pursuant to the FBRA and securing the BSRA.
(B) No action or proceeding by or before any Government Entity has been instituted
or threatened (and not subsequently dismissed, settled, or otherwise terminated)
which might restrain, prohibit, or invalidate the transaction contemplated by this
Agreement, other than an action or proceeding instituted or threatened by Seller or
any of its Affiliates.
(C) Purchaser representations and warranties in Section 5.3 are true and correct in all
material respects on the Effective Date and Closing Date.
(D) The receipt of all material approvals or the execution of any necessary agreement
or document (on terms reasonably satisfactory and agreed to by the Parties) which
are required under Applicable Law or by a Government Entity prior to the transfer
of the Property to Purchaser.
8.2 Conditions Precedent to Purchaser’s Obligation to Purchase. The following are the
Conditions Precedent to Purchaser’s obligation to purchase the Property from Seller
pursuant to this Agreement, unless waived by Purchaser:
(A) Seller has performed and complied in all material respects with the terms and
conditions of this Agreement required to be performed or complied with by Seller
at or prior to Closing, including without limitation, cooperating with Purchaser in
designating the Property as a Brownfield Site pursuant to the FBRA and securing
the BSRA.
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(B) No action or proceeding by or before any Government Entity has been instituted
or threatened (and not subsequently dismissed, settled, or otherwise terminated)
which might restrain, prohibit, or invalidate the transaction contemplated by this
Agreement, other than an action or proceeding instituted or threatened by
Purchaser or any of its Affiliates.
(C) Seller’s representations and warranties in Section 5.2 are true and correct in all
material respects on the Closing Date.
8.3 Fulfillment of Conditions Precedent.
(A) Each Party (including each Parties’ Affiliates) will use reasonable efforts to satisfy
the Conditions Precedent to each Parties’ obligation to consummate the Closing,
including the execution of all documents, acts, and things as may be reasonably
required to satisfy the Conditions Precedent.
(B) Each Party will promptly provide to the other Party all information and
documentation concerning a Party as may be necessary to enable the other Party
to prepare and submit all necessary filings required by any Government Entity in
connection with the transaction contemplated by this Agreement and otherwise to
satisfy the Conditions Precedent.
8.4 Right to Terminate for Failure to Satisfy Conditions Precedent.
(A) If the Conditions Precedent in Section 8.2 have not been satisfied by the Closing
Date, and Seller has not waived any unsatisfied Conditions Precedent, then Seller
may terminate this Agreement.
(B) If the Conditions Precedent in Section 8.1 have not been satisfied by the Closing
Date, and Purchaser has not waived any unsatisfied Conditions Precedent, and
Purchaser has not breached any representation, warranty, covenant, or agreement
under this Agreement, then Purchaser may terminate this Agreement.
(C) A Party may terminate this Agreement under this Section 8.4 by giving notice to
the other Party.
9. CLOSING COSTS AND PRORATIONS
9.1 Purchaser’s Costs. Purchaser will pay the following Closing costs in connection with this
Agreement:
(A) All premiums, fees, and costs associated with the issuance of any mortgagee title
insurance policy, any costs of the Owner’s Policy of Title Insurance above the base
premium (including any premium or charge for deletion of the “areas and
boundaries” exception or parties in possession exception on the Owner’s Policy of
Title Insurance, or other extended coverage or endorsements for the Owner’s
Policy of Title Insurance), and 50% of the settlement fees and other charges of the
Escrow Agent (including escrow charges) due in connection with the closing of
this transaction.
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(B) The fees and disbursements of Purchaser’s counsel and any other expense(s)
incurred by Purchaser or its representative(s) in inspecting or eva luating the
Property or closing this transaction.
(C) All costs and expenses in connection with obtaining financing for the purchase of
the Property, including any recordation or transfer taxes required to be paid upon
the recordation of any deed of trust, mortgage, or other security agreement
executed and recorded in connection with Purchaser’s financing.
(D) Any sales taxes payable with respect to any personal property included within the
Property.
(E) All costs related to any financing of the purchase of the Property by Purchaser,
including without limitation, the cost of any state documentary stamps related to
any mortgage recorded in connection with such financing.
(F) Any costs related to a Survey.
9.2 Seller’s Costs. Seller will pay the following Closing costs in connection with this
Agreement:
(A) The cost of the Title Commitment and any related title search fees and the base
premium only for an Owner’s Policy of Title Insurance in the amount of the
Purchase Price, and 50% of the settlement fees and charges of the Escrow Agent
(including escrow charges) due in connection with the closing of this transaction.
(B) The cost of the transfer taxes (e.g., state documentary stamps) which are due upon
recording of the Deed.
(C) The fees and disbursements of Seller’s counsel.
(D) The fees of Seller’s Broker.
(E) All release fees and other charges required to be paid to release from the Property
the lien of any mortgage or other security interest which Seller is obligated to
remove pursuant to the terms of this Agreement.
9.3 Taxes. Property Taxes and special assessments relating to the Property payable during the
year in which Closing occurs will be prorated with respect to the Property as of the Date
of Closing, with Seller being responsible for Property Taxes accruing prior to Closing and
Purchaser being responsible for Property Taxes accrued on and after the Date of Closing.
In no event will Seller be responsible for any Property Taxes relating to any period in which
Seller did not own the Property. If Closing will occur before the actual Property Taxes and
special assessments payable during the year are known, the apportionment of Property
Taxes will be upon the basis of Property Taxes for the Property payable during the
immediately preceding year. If, as the result of an appeal of the assessed valuation of the
Property for any Property Tax year prior to (or including) the Closing, there is issued after
Closing an administrative ruling, judicial decision, or settlement by which the assessed
value of the Property for such Property Tax year is reduced, and a Property Tax refund or
credit issued, Seller will be entitled to these Property Tax refunds relating to the period
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prior to Closing. No post-Closing re-prorations will occur. Notwithstanding any contrary
provision of this Agreement, Purchaser will pay when due all assessments or Property
Taxes for the change in the use of the Property, regardless of the period for which they
were assessed, and will further indemnify, defend, and hold harmless Seller from any
Claim made or any Loss incurred relating to or arising out of any change in use of
the Property. The provisions of this Section will expressly survive the Closing.
9.4 In General. Any other costs or charges of Closing this transaction not specifically
mentioned in this Agreement will be paid and adjusted in accordance with local custom or
ordinance in the jurisdiction in which the Property is located.
10. CLOSING AND ESCROW
10.1 Closing. The purchase and sale of the Property will be consummated through an escrow
with Escrow Agent. Closing will occur on the Date of Closing, on or before 10:00 a.m.
Local Time or as soon after as possible on the Date of Closing, by mail or as otherwise
agreed to by the Parties (as further described in Section 10.5) at the offices of the Escrow
Agent, or at such other time and place as may be agreed to in writing by the Parties.
10.2 Seller’s Deliverables. Seller will deliver at the Closing the following original documents,
each executed and, if required, acknowledged:
(A) The Deed.
(B) The Disclosure Notice.
(C) The Release and Indemnity Agreement.
(D) The Termination Agreement.
(E) An affidavit pursuant to the Foreign Investment and Real Property Tax Act.
(F) Appropriate evidence of authority, capacity, and status of Seller as reasonably
required by Escrow Agent.
(G) An “owner’s affidavit”, in a form reasonably acceptable to Seller and the Escrow
Agent and sufficient for the Escrow Agent to delete any exceptions for
(1) mechanics’ or materialmen’s liens arising from work at the Property which is
the responsibility of Seller, (2) parties in possession, other than tenants as tenants
only, and (3) matters not shown in the public records.
(H) The Settlement Statement.
(I) Any other documents, certificates, and other instruments as may be reasonably
required to consummate the transaction contemplated by this Agreement.
10.3 Purchaser’s Deliverables. At the Closing, Purchaser will (A) pay the Escrow Agent the
Adjusted Purchase Price as required by, and in the manner described in, Section 2.7 and
(B) execute and deliver the following original documents, each executed and, if required,
acknowledged:
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(A) The Deed.
(B) The Release and Indemnity Agreement.
(C) The Termination Agreement.
(D) Evidence of Purchaser’s authority, and the authority of the Person executing any
documents at Closing on behalf of Purchaser, acceptable to Seller and the Escrow
Agent, to enter into the transactions contemplated by this Agreement.
(E) The Settlement Statement.
(F) Any other documents, certificates, and other instruments as may be reasonably
required to consummate the transaction contemplated by this Agreement.
10.4 Possession. Purchaser will be entitled to possession of the Property at the conclusion of
the Closing.
10.5 Closing Procedure.
(A) At least five (5) days before the scheduled Date of Closing, Escrow Agent will
provide Purchaser and Seller with a preliminary Settlement Statement for approval
by each of each of Seller and Purchaser. Seller and Purchaser in good faith will
finalize with Escrow Agent the Settlement Statement in accordance with the terms
and provisions of this Agreement.
(B) At least one (1) Business Day before the scheduled Date of Closing, counsel for
each of Seller and Purchaser will deliver to Escrow Agent its Closing Instructions
to complete Closing.
(C) At least one (1) Business Day prior to the scheduled Date of Closing: (a) Seller
will deposit Seller’s Deliverables with the Escrow Agent; (b) Purchaser will
deposit Purchaser’s Deliverables with the Escrow Agent and (c) Purchaser will
deposit with the Escrow Agent the Adjusted Purchase Price which will be set forth
on, and mutually agreeable pursuant to, the Settlement Statement agreed to by
Seller and Purchaser.
11. POST-CLOSING DEVELOPMENT OF THE PROPERTY
11.1 Purchaser will be solely responsible, at Purchaser’s expense, for performing any due
diligence reviews and surveys of the Property that may be necessary, desirable or prudent
before commencing any construction involving subsurface excavation soil disturbance or
dewatering. Purchaser understands that such reviews and surveys may determine the
presence, nature and character of any Hazardous Materials on or underlying the Property.
11.2 Purchaser acknowledges that the presence of arsenic or other Hazardous Materials
disclosed by the reviews and surveys referenced in Section 11.1 above may pose an
unacceptable risk to human health or the Environment during future construction or
redevelopment activities, such as onsite or offsite excavations, dewatering events, etc.
Purchaser further acknowledges that all responsible parties, landowners, and contractors
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performing subsurface activities at the Property should be prepared to encounter arsenic or
such other Hazardous Materials, and that appropriate health and safety equipment and
protocols as required by Applicable Law should be used and any encountered or such other
Hazardous Materials should be managed properly to avoid threats to human health and the
environment.
11.3 Before commencing any construction activities involving soil or groundwater disturbance
or dewatering, Purchaser will be solely responsible, at Purchaser’s expense, for performing
any due diligence reviews and surveys of the Property that may be necessary, desirable or
prudent, including a human health risk assessment, and for incorporating institutional
controls which minimize risks associated with occupancy of a structure on the Property.
Purchaser understands that such reviews and surveys may determine the presence, nature
and character of any Hazardous Materials in soils and groundwater, if any. Purchaser must
also implement such institutional controls, procedures and/or special industrial hygiene
precautions as may be necessary, desirable or prudent based on Environmental Conditions
encountered during construction and as required by Applicable Laws. Purchaser
understands and acknowledges that any institutional controls, procedures and/or special
industrial hygiene precautions will be Purchaser’s sole responsibility and will be
implemented at its sole cost and expense. Purchaser and its representatives will handle all
permitting required for Purchaser’s development of the Property, including all
environmental permitting and documentation required by any regulatory agency.
Purchaser will hold Seller harmless and indemnify Seller from and against any and all
Claims which may arise as a result of Purchaser’s failure to take such measures and
precautions as are required by this Section 11.3.
11.4 Purchaser agrees that any and all soil and groundwater removal work performed by or on
behalf of Purchaser at the Property will be performed by a licensed contractor or contractors
under contract with Purchaser, at Purchaser’s sole cost and expense. Any and all cos ts
incurred by Purchaser to remove contaminated soil and/or groundwater from the Property
will be borne by Purchaser, including costs associated with compaction and/or importing
clean fill. All manifests for contaminated soil and/or contaminated groundwater removed
from the Property will identify Purchaser as the generator, and Purchaser will indemnify
Seller against any Claim associated with Purchaser’s disposal of such contaminated
material. Purchaser agrees to select a licensed disposal facility that meets federal, state and
local laws and requirements.
11.5 Purchaser represents and warrants to Seller that, upon the effective date of the BSRA,
Purchaser will comply with Purchaser’s obligations under the BSRA and at no time will
Purchaser withdraw as a party to the BSRA.
11.6 The provisions of this Section 11 will survive Closing and will be covenants running with
the land binding on all future owners of the Property, or any portion thereof.
12. DAMAGE, DESTRUCTION AND CONDEMNATION
12.1 Casualty. Except as provided in this Agreement, Seller assumes all risk of loss or damage
to the Property by fire or other casualty until Closing has occurred. If at any time on or
prior to the conclusion of Closing any portion of the Property is destroyed or damaged as
a result of fire or any other cause, Seller will promptly give written notice to Purchaser. If
the estimated cost to repair the damage or destruction exceeds US$50,000.00 as reasonably
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estimated by Seller, Purchaser and Seller will each have the right to terminate this
Agreement by written notice to the other within ten (10) days following the date upon
which Purchaser receives Seller’s written notice of the destruction or damage. If neither
Purchaser nor Seller elects to terminate this Agreement within the ten (10) -day period, or
if the cost of repair is equal to or less than US$50,000.00, this Agreement will remain in
full force and effect and the Parties will proceed to Closing with a reduction or adjustment
in the Purchase Price equal to the estimated cost to repair the damage as determined by
Seller’s insurance adjuster, and Seller will be entitled to retain all insurance proceeds which
are compensable under its insurance policies in connection with the damage.
12.2 Condemnation. If, at any time on or prior to the Date of Closing, any action or proceeding
is filed, under which the Property, or any portion of the Property, may be taken pursuant to
any Applicable Law, ordinance or regulation, or by condemnation or the right of eminent
domain, Seller will promptly give written notice to Purchaser (which notice will describe
the type of action being taken against the Property and which portions of the Property will
be affected). Purchaser will have the right to terminate this Agreement by written notice to
Seller within ten (10) days following the date upon which Purchaser receives Seller’s
written notice of the action or proceeding. If Purchaser does not elect to terminate this
Agreement within the 10-day period, this Agreement will remain in full force and effect
and the Parties will proceed to Closing without any reduction or adjustment in the Purchase
Price, except that all condemnation proceeds will be assigned to Purchaser.
13. DEFAULT AND REMEDIES
13.1 Purchaser Default.
(A) If Purchaser is in default of one or more of Purchaser’s obligations under this
Agreement other than a failure to timely close (for which there will be no notice
and cure period), then Seller may give notice to Purchaser (with a copy to Escrow
Agent) specifying the nature of the default. Purchaser will have five (5) days after
receiving that notice, but in no event beyond the Closing Date, within which to
cure that default. If Purchaser fails to cure that default within that period, then
Seller’s sole remedy for that default will be to terminate this Agreement by giving
notice of that termination to Purchaser (with a copy to Escrow Agent) and receive
the Deposit as liquidated damages. If Seller terminates this Agreement due to a
Purchaser default, then Escrow Agent will immediately release and pay the
Deposit to Seller.
(B) Purchaser and Seller agree that the release and payment of the Deposit to
Seller represents a reasonable estimation as of the effective date of Seller’s
damages in the event of Purchaser default under this Agreement, that actual
damages would be impracticable or extremely difficult to ascertain, and that
the provision for liquidated damages under this Agreement does not
constitute a forfeiture or penalty. The Parties acknowledge that these
damages have been specifically negotiated between themselves and are
intended, among other things, to compensate Seller for taking the Property
off the market, for Seller’s costs and expenses associated with this Agreement
and for Seller’s lost opportunity costs. Purchaser waives the rights and
benefits of any law, rule, regulation, or order now (or in future) existing that
would allow Purchaser to Claim a refund of the Deposit as unearned earnest
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money, a penalty, or for any other reason. If a court determines that Seller is
not entitled to receive the Deposit as a result of Purchaser’s default, Seller will
be entitled to seek all damages provided by Applicable Law.
(C) By placing their initials below, each Party specifically confirms the accuracy
of the statements made above and their full understanding of those
statements. Notwithstanding anything to the contrary in this Agreement, the
Parties agree that, in no event, will this liquidated damages provision limit
Seller’s rights or recourse with respect to (1) any indemnity provisions of this
Agreement; (2) any default by Purchaser following the Closing Date of
escrow; and (3) any attorneys’ fees incurred by Seller in enforcing this
Agreement or any other agreements. The parties further agree that in the
event Seller makes a Claim for any of the matters described in
Section 13.1(C)(1) through (3), all of Seller’s rights, options and remedies will
be cumulative, and not one of them will be exclusive of the other. Seller will
have, with respect to the matters described in Section 13.1(C)(1) through (3),
the right to pursue any of these remedies or to seek damages in connection
with the matters described in Section 13.1(C)(1) through (3) as in the event of
any breach of the terms and conditions of this Agreement by Purchaser or to
pursue any other remedy or relief which may be provided by law or in equity,
whether or not stated in this Agreement.
Seller Initials: Purchaser Initials:
13.2 Seller Default.
(A) If Seller does any of the following: (1) fails to sell, transfer, and assign the Property
to Purchaser in violation of the terms and conditions of this Agreement, (2) fails to
perform any other material obligation of Seller under this Agreement after Seller
has been given five (5) days’ notice and opportunity to cure, (3) intentionally
breaches any warranty made or granted by Seller under this Agreement, and this
breach is not cured by the Closing Date, or (4) intentionally misrepresents any fact,
or if any of the representations of Seller in this Agreement are not true, accurate,
or complete in any material respect, Purchaser will as its sole and exclusive
remedy, be entitled to (a) declare this Agreement to be null and void and demand
and receive the return of the Deposit, at which point, neither Party will have any
further rights, duties, or obligations under this Agreement except as otherwise
provided in this Agreement and (b) to receive from Seller as liquidated damages
the Liquidated Damages Amount.
(B) Purchaser agrees that the Liquidated Damages Amount represents a
reasonable estimation as of the effective date of Purchaser’s damages in the
event of Seller’s default under this Agreement, that actual damages would be
impracticable or extremely difficult to ascertain, and that the provision for
liquidated damages under this Agreement does not constitute a forfeiture or
penalty. The Parties acknowledge that these damages have been specifically
negotiated between themselves and are intended, among other things, to
compensate Purchaser for its costs and expenses associated with this
Agreement. Purchaser specifically waives all rights (1) to file or record any
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lien or encumbrance against the Property, (2) to direct, incidental,
consequential, or punitive damages, or (3) to seek specific performance of this
Agreement and to record any lis pendens.
(C) Waiver of Default. If Purchaser does not notify Seller of Seller’s default or does
not give Seller a notice of termination under Section 12, then (1) the default will
be treated as waived by Purchaser and (2) at Closing, Purchaser will accept the
Property subject to the default without any reduction in the Purchase Price and
without any Claims against Seller on account of the default.
13.3 Termination. Upon any termination of this Agreement pursuant to any right of a Party to
terminate under this Agreement, (A) the Deposit will be paid to the Party entitled to it,
(B) 50% of the settlement fees and charges of the Escrow Agent (including escrow charges)
due in connection with the transaction will be paid by each Party, (C) all documents
deposited by Purchaser and Seller into escrow will be returned by the escrow agent to the
Party depositing them, and (D) copies of all Property Documents provided to Purchaser by
Seller and all third party reports relating to the Inspections and studies obtained by
Purchaser will be delivered to Seller, and the Parties will have no continuing liability to
each other unless otherwise expressly stated in this Agreement.
13.4 Attorneys’ Fees. If any legal action or proceeding, including arbitration, is brought for the
enforcement or a declaration of any rights and duties under this Agreement, or because of
an alleged dispute, breach, or default of any provisions of this Agreement, all arbitration
fees and court costs will be paid equally, regardless of which Party prevails, and each Party
will bear its own costs of legal representation and witness expenses.
13.5 Right of First Refusal.
(A) If this Agreement is terminated by Purchaser pursuant to Section 13.2 (A), then in
in such event Seller grants to Purchaser a right of first offer to purchase the
Property for a period of three (3) years from the date of such termination (the
“ROFR Period”).
(B) If within the ROFR Period Seller accepts a bona fide offer to purchase the Property
or receives a bona fide purchase offer for the Property that Seller is willing to
accept, to or from any third party purchaser other than an Affiliate of Seller, Seller
shall notify Purchaser in writing of the same (the “ROFR Notice ”), enclosing a
copy of the proposed contract, letter of intent or other written offer for sale of the
Property (any such contract, letter of intent, or other written offer is known as a
“Proposed Contract ”). Purchaser shall have until 5:00 pm Local Time on the
date that is ten (10) Business Days following receipt of the ROFR Notice to
Purchaser to notify Seller in writing that Purchaser elects to purchase the Property
on the terms set forth in subsection (D) below (the “ROFR Acceptance Notice ”).
(C) If Purchaser fails to give Seller a ROFR Acceptance Notice prior to the expiration
of such 10-Business Day period, Seller shall be entitled to enter into the Proposed
Contract with such third party and to sell the Property to such third party.
Notwithstanding the foregoing, if Purchaser fails to timely deliver the ROFR
Acceptance Notice, and following such failure, Seller offers the Property for
purchase on economic terms and conditions that are more favorable than the
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economic terms and conditions set forth in the ROFR Notice provided to
Purchaser, then Seller shall deliver another ROFR to Purchaser including the new
Proposed Contract. Purchaser shall deliver the ROFR Acceptance Notice within
10 Business Days of delivery of such subsequent ROFR Notice, which procedure
will be repeated until Seller enters into an agreement for the sale of the Property
which does not require Seller to deliver another ROFR Notice to Purchaser
pursuant to the terms of this Section or Purchaser delivers the ROFR Acceptance
Notice, as applicable.
(D) If Purchaser gives Seller a ROFR Acceptance Notice prior to the expiration of the
above described 10-Business Day period, then Seller and Purchaser shall enter into
a purchase and sale agreement (the “ROFR Purchase Agreement ”) for the sale
and purchase of the Property on the same terms and conditions as set forth in this
Agreement, except that the Due Diligence Period will be limited to thirty (30) days
from the date of execution of such ROFR Purchase Agreement and the Closing
Date will be five (5) Business Days after expiration of the Due Diligence Period.
Failure of Purchaser to enter into such ROFR Purchase Agreement on the terms
and conditions set forth above within fifteen (15) days of Purchaser’s delivery of
the ROFR Acceptance Notice will terminate the first refusal rights of Purchaser
set forth in this Section 13.5.
(E) During the ROFR Period, Seller shall not offer for sale or solicit or accept any
offers for sale of less than all of the Property.
(F) This Section 13.5 will survive the termination or expiration of this Agreement.
14. NOTICES
14.1 All notices must be in writing and delivered by mail (postage prepaid), email, or by a
recognized courier service under this Agreement and may be served by a Party or its
attorney to the appropriate Party’s address set out in the signature page of this Agreement
or in each case to such other address as either Party may from time to time designate by
giving notice in writing pursuant to Section 14 to the other Party. Email notices must clearly
state that it is a notice given under the Agreement. Notice given under Section 15 must be
delivered by mail or by a recognized courier service, not by email. Notices are effective
when received by the Parties during the recipient’s regular business hours.
14.2 Each Party may change its representative or contact information by giving notice to the
other Party. The new representative or contact information set out in the notice replaces the
representative or contact information in the signature page of this Agreement.
14.3 Notices which do not comply with the requirements of this Agreement are ineffective and
do not impart actual or any other kind of notice.
15. GOVERNING LAW AND RESOLUTION OF DISPUTES
15.1 GOVERNING LAW. THE AGREEMENT AND ITS SUBJECT MATTER, AND
THE CONTRACTUAL AND NON-CONTRACTUAL RIGHTS AND
OBLIGATIONS OF THE PARTIES ARISING OUT OF OR IN CONNECTION
WITH THE FOREGOING, ARE GOVERNED BY AND INTERPRETED UNDER
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THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO ITS
CHOICE OF LAW RULES, EXCEPT THAT THE RULES OF THE FEDERAL
ARBITRATION ACT, 9 U.S.C. §§ 1-16 GOVERN (THE “ACT”) THIS SECTION.
THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS, 1980 (KNOWN AS “THE VIENNA SALES
CONVENTION”) DOES NOT APPLY TO THE AGREEMENT.
15.2 RESOLUTION OF DISPUTES. THE PARTIES WILL EXCLUSIVELY AND
FINALLY RESOLVE ANY DISPUTE BETWEEN THEM USING DIRECT
NEGOTIATIONS, MEDIATION, AND THEN ARBITRATION AS SET OUT IN
SECTION 15.4. IF ANY DISPUTE ARISES OUT OF OR IN CONNECTION WITH
THE AGREEMENT, INCLUDING ANY QUESTION REGARDING ITS
EXISTENCE, VALIDITY, OR TERMINATION, EITHER PARTY MAY
INITIATE THE DISPUTE RESOLUTION PROCESS BY GIVING NOTICE TO
THE OTHER PARTY SETTING OUT, IN WRITING AND IN DETAIL, THE
ISSUES IN DISPUTE AND THE VALUE OF THE CLAIM.
15.3 MEDIATION. IF THE DISPUTE CANNOT BE RESOLVED BY DIRECT
NEGOTIATIONS WITHIN 30 DAYS FROM THE DATE OF WRITTEN NOTICE
INITIATING THE DISPUTE RESOLUTION PROCESS, EITHER PARTY MAY
INITIATE MEDIATION BY GIVING NOTICE TO THE OTHER PARTY.
MEDIATION MUST BE ATTENDED BY A REPRESENTATIVE FROM EACH
PARTY WITH DECISION-MAKING AUTHORITY. THE PLACE OF
MEDIATION WILL BE IN ORLANDO, FLORIDA.
15.4 ARBITRATION OF DISPUTES. IF THE PARTIES FAIL TO RESOLVE THE
DISPUTE WITHIN 60 DAYS FROM THE DATE OF THE NOTICE OF
MEDIATION, THEN THE DISPUTE MUST BE FINALLY RESOLVED BY
BINDING ARBITRATION AND EITHER PARTY MAY INITIATE
ARBITRATION BY GIVING NOTICE TO THE OTHER PARTY. ONE
ARBITRATOR (OR THREE ARBITRATORS IF THE MONETARY VALUE OF
THE DISPUTE IS MORE THAN US$5,000,000) WILL CONDUCT THE
PROCEEDINGS IN ACCORDANCE WITH THE INTERNATIONAL INSTITUTE
FOR CONFLICT PREVENTION AND RESOLUTION (“CPR”) RULES FOR
ADMINISTERED ARBITRATION WHICH ARE DEEMED TO BE
INCORPORATED BY REFERENCE INTO THIS SECTION. TO THE EXTENT
OF ANY CONFLICTS BETWEEN THE ACT OR CPR RULES AND THE
PROVISIONS OF THIS CONTRACT, THE PROVISIONS OF THIS CONTRACT
PREVAIL. THE CPR IS THE APPOINTING AUTHORITY FOR THE
ARBITRATOR(S). THE SEAT OF ARBITRATION WILL BE IN ORLANDO,
FLORIDA. ALL ARBITRATION FEES AND COSTS WILL BE PAID EQUALLY,
REGARDLESS OF WHICH PARTY PREVAILS. THE ARBITRATION AWARD
IS FINAL AND BINDING, AND THE ARBITRATORS SHOULD USE THEIR
BEST EFFORTS TO ISSUE THE AWARD WITHIN 90 DAYS FROM
COMPLETION OF THE ARBITRATION HEARING. ANY COMMUNICATIONS
AND DOCUMENTS RELATED TO THE DISPUTE WILL BE CONFIDENTIAL
AND MAY NOT BE DISCLOSED TO ANY THIRD PARTY OR USED FOR ANY
OTHER PURPOSES, EXCEPT TO THE EXTENT THAT DISCLOSURE IS
NECESSARY TO FULFILL A LEGAL OBLIGATION OR TO PROTECT A
LEGAL RIGHT. REGARDLESS OF THE REQUIREMENT TO ARBITRATE,
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THE FOLLOWING PROCEEDINGS MAY BE BROUGHT IN ANY COURT
HAVING JURISDICTION OVER THE PERSON OR ASSETS OF THE NON-
PREVAILING PARTY: PROCEEDINGS TO (A) PRESERVE PROPERTY
PENDING DETERMINATION BY THE ARBITRATOR(S), (B) ENFORCE THE
CONFIDENTIALITY OR DATA PROTECTION OBLIGATIONS UNDER THE
CONTRACT, THE FAILURE OF WHICH TO ENFORCE THE PARTIES AGREE
WOULD CAUSE IRREPARABLE HARM, OR (C) ENFORCE A JUDGMENT
ENTERED ON AN ARBITRATION AWARD.
PURCHASER’S INITIALS: SELLER’S INITIALS
16. MISCELLANEOUS
16.1 Successors Bound. This Agreement will be binding upon and inure to the benefit of
Purchaser and Seller and their respective successors and permitted assigns.
16.2 Public Announcements.
(A) Purchaser will not make any use of Seller Group’s names, images, logos, or
trademarks without obtaining Seller’s prior written consent.
(B) Each Party will submit proposed notices, announcements, or press releases
regarding the execution of this Agreement or the consummation of the Transaction
to the other Party for prior review and approval, not to be unreasonably withheld,
conditioned or delayed. Except as required by any mandatory notice or
announcement, the release of reserve estimates in any announcement is expressly
prohibited. The foregoing will not apply to any notices required as part of
Purchaser obtaining permits and approvals.
(C) If a Party is required to make any mandatory notice or announcement required
under Applicable Law, by the stock exchange upon which a Party’s or Affiliate of
such Party’s shares are quoted or any similar regulatory body of any other
jurisdiction, then prior approval by the other Party is not required, but the Party
will use its reasonable efforts to allow the other Party reasonable time to comment
on such notice or announcement in advance of its issuance.
16.3 Captions. The captions in this Agreement are inserted only as a matter of convenience and
for reference and in no way define, limit, or describe the scope of this Agreement or the
scope or content of any of its provisions. Unless the context expressly indicates otherwise,
all references to “Section” are to sections of this Agreement.
16.4 No Partnership. Nothing contained in this Agreement will be construed to create a
partnership or joint venture between the Parties or their successors in interest or permitted
assigns.
16.5 Time of Essence. Time is of the essence with respect to each and every term, condition,
obligation, and provision of this Agreement. Failure to timely perform any of the terms,
conditions, obligations, or provisions by either Party will constitute a breach of and a
default under this Agreement by the Party failing to perform. In calculating any period
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provided for in this Agreement, the number of days allowed will refer to calendar and not
Business Days, unless otherwise specified.
16.6 Business Days. If any date for the performance of any obligations by Seller or Purchaser
or for the delivery of any instrument or notice should fall on a Saturday, Sunday, or Legal
Holiday, then compliance with such obligations or delivery will be deemed acceptable on
the next Business Day following a Saturday, Sunday, or Legal Holiday.
16.7 Recordation. Purchaser and Seller agree not to record this Agreement or any memorandum
of this Agreement.
16.8 Proper Authority and Execution. Each of the Parties and their officers represent and
warrant that they are authorized to enter into this Agreement and execute the same without
further authority. This Agreement will have no binding force and effect on either Party
unless and until both Purchaser and Seller will have executed and delivered this
Agreement.
16.9 Waiver. No waiver by either Party of this Agreement’s terms, provisions, or conditions is
effective unless specifically evidenced in writing and signed by or on behalf of the Party
granting such waiver. A Party’s failure to pursue remedies for breach of this Agreement
does not constitute a waiver by a Party of any breach of this Agreement or raise any defense
against Claims against a Party for breach of this Agreement. The waiver or failure to require
the performance of any covenant or obligation contained in this Agreement or to pursue
remedies for breach of this Agreement does not waive a later breach of that covenant or
obligation.
16.10 Confidentiality. Except as otherwise prohibited by laws governing disclosure of public
documents, including, but not limited to, Chapter 119, Florida Statutes, to the extent
applicable to any “public record,” until Closing, Purchaser and its partners, attorneys,
agents, employees, and consultants will treat the information disclosed to it by Seller as
confidential, giving it the same care as Purchaser’s own confidential information, and make
no use of any Seller-disclosed information not independently known to Purchaser except
with the transactions contemplated by this Agreement. If this Agreement is terminated,
Purchaser will promptly return copies of all Seller’s confidential information to Seller]
17. ESCROW AGREEMENT
By its acknowledgment below, Escrow Agent agrees to deposit the Deposit in a non-interest-
bearing account, subject to the receipt from Purchaser of a form W-9 for the purposes of investing
Deposit funds and to hold and disburse Deposit funds, as described in this Section, and to otherwise
be bound by and perform the terms of this Agreement as and to the extent the Agreement terms
apply to Escrow Agent. Upon written notification from Seller or Purchaser in accordance with the
terms of this Agreement, Escrow Agent will release the funds in accordance with the written
instructions. In the event of a Dispute between any of the Parties sufficient in the sole discretion of
Escrow Agent to justify its doing so, Escrow Agent will be entitled to tender unto the registry or
custody of any court of competent jurisdiction all money or property in its hands held under the
terms of this Agreement, together with such legal pleading as it deems appropriate, and at that point
be discharged. For purposes of complying with Internal Revenue Code Section 6045(e), as
amended effective January 1, 1991, Escrow Agent is hereby designated as the “person
responsible for closing the transaction” and also as the “reporting person,” for purposes of filing
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any information returns with the Internal Revenue Service concerning this transaction, as
required by Applicable Law.
18. ADDITIONAL OBLIGATIONS
18.1 Conflict of Interest. No Purchaser Group will in connection with the Agreement: (A) enter
into any business arrangement with any director, employee, or agent of Seller, or any of its
Affiliates (other than as a representative of Seller or any Affiliate of Seller) without Seller’s
prior written consent or (B) give to or receive from any director, employee, or agent of
Seller or any of its Affiliates anything that is more than a nominal cost or value. Purchaser
will ensure that Purchaser Group members comply with this Section.
18.2 Termination. Prior to Closing, Seller may, in its sole option, terminate this Agreement
with immediate effect for any violation of Section 18.1 or Section Error! Reference
source not found. or breach of the warranty set out in Section 5.3.
18.3 Records and Inspection. For 24 months from the end of the calendar year or the Closing
Date in which the Agreement is completed or terminated, (A) Purchaser will ensure that
Purchaser Group members retain all records related to the Agreement (or until expiry of
the statute of limitations for taxes) and (B) Seller (or its representative) may inspect, at no
cost to Seller and at any time, all records to confirm compliance with the Agreement.
19. GENERAL PROVISIONS
19.1 Prior Agreements. This Agreement supersedes all prior or contemporaneous
representations, agreements, understandings, and commitments between the Parties
concerning the subject matter and comprises the complete and exclusive agreement
between the Parties. Seller and Purchaser each acknowledge that they have read this
Agreement in its entirety and agree to be bound by the terms and provisions of this
Agreement, and that each have had the opportunity to be represented by legal counsel of
their choice in the negotiation of this Agreement.
19.2 Amendment. No amendment to this Agreement is effective unless made in writing and
signed by authorized representatives of both of the relevant Parties, expressly identified as
an amendment to this Agreement and delivered to both Parties.
19.3 Assignments. This Agreement is binding on and inures for the benefit of the rightful
successors and permitted assigns of the Parties, but the rights, duties, and obligations of
Purchaser under this Agreement may not be assigned, in whole or in part, without Seller’s
prior consent to the assignment, which consent, in the event of an assignment by Purchaser
to an Affiliate, will not be unreasonably delayed or withheld provided that if an Affiliate
ceases to be an Affiliate of Purchaser, it will promptly assign this Agreement back to
Purchaser. The City may assign its rights and obligations to Montierre without the consent
of Seller provided the City gives Seller not less than three (3) Business Days’ notice of
such assignment and Montierre assumes the rights, obligations, indemnities and liabilities
of Purchaser under this Agreement. Notwithstanding any contrary provision of this
Agreement, in the event of assignment by the City of its rights and obligations under this
Agreement (including without limitation, an assignment to Montierre), the City will remain
responsible to Seller for all obligations, indemnities, and liabilities due to Seller under this
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Agreement, unless and until expressly released in writing by Seller, in Seller’s sole
discretion.
19.4 Third Party Rights. Except as otherwise stated in this Agreement, no third party has any
rights under this Agreement or may enforce any provision in this Agreement.
19.5 Severability. Each provision of this Agreement is severable and if any provision is
determined to be invalid, unenforceable, or illegal under any existing or future law by a
court or arbitrator of competent jurisdiction or by operation of any Applicable Law, this
invalidity, unenforceability, or illegality does not impair the operation of or affect those
portions of this Agreement that are valid, enforceable, and legal so long as the economic
or legal substance of the transaction contemplated by this Agreement is not affected in any
manner adverse to any Party. Upon a determination that any term or other provision or part
of this Agreement is invalid, illegal, or unenforceable, the Parties will negotiate in good
faith to modify this Agreement as to effect the original intent of the Parties as closely as
possible in an acceptable manner to the end that the transaction contemplated by this
Agreement is fulfilled to the extent possible.
19.6 Survival of Certain Obligations. Despite termination of this Agreement for any reason,
all provisions in this Agreement containing waivers, disclaimers, releases, defense
obligations, and indemnities, and all provisions relating to remedies, audit, records
retention, confidentiality, taxes, conflicts of interest, improper payment, insurance,
limitations of liability, ownership or use, or return of information subject to confidentiality
obligations under this Agreement, Dispute resolution and governing law, and all causes of
action, survive indefinitely until, by their respective terms, they are no longer operative, or
are otherwise limited by an applicable statute of limitations. Each of the obligations and
undertakings set out in this Agreement which are not fully performed at Closing continue
in force after Closing.
19.7 Drafting. Each Party has participated in the preparation of this Agreement and has had the
opportunity to consult with legal counsel and any other advisors of its choice to its
satisfaction regarding the terms and conditions of this Agreement. As a result, the rule of
construction that an agreement be construed against the drafter will not be asserted or
applied to this Agreement.
19.8 Costs and Expenses. Each Party will pay its own costs and expenses in relation to the
preparation, negotiation, and execution of this Agreement and the documents contemplated
or executed pursuant to this Agreement.
19.9 Counterparts; Methods of Exchange. The exchange of counterpart signature pages
between the Parties constitutes execution and delivery of this Agreement. No Party will be
bound to this Agreement unless and until all Parties have executed and delivered a
counterpart. Execution may be accomplished using an electronically verifiable method.
Executed signature pages sent by email scan or otherwise by photocopy are valid means of
delivery. For purposes of assembling all counterparts into one document, Seller is
authorized to detach the signature page from one or more counterparts and, after signature
by the respective Party, attach each signed signature page to a counterpart.
19.10 PDF Signatures. In order to expedite the transaction contemplated by this Agreement,
PDF signatures may be used in place of original signatures on this Agreement. Seller and
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Purchaser intend to be bound by the signatures on the PDF document, are aware that the
other Party will rely on the PDF signatures, and each waive any defenses to the enforcement
of the terms of this Agreement based on the form of signature.
The remainder of this page is intentionally left blank.
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IMPORTANT NOTICE: THIS AGREEMENT CONTAINS PROVISIONS REGARDING
INDEMNITIES AND WARRANTIES THAT EXPRESS THE AGREEMENT OF THE PARTIES
CONCERNING CLAIMS ARISING OUT OF THIS AGREEMENT.
The Parties have executed this Agreement as evidenced by the following signatures of authorized
representatives of the Parties:
SELLER:
CHEVRON LAND AND DEVELOPMENT
COMPANY
PURCHASER:
CITY OF OCOEE
Signature: Signature:
Name: [Insert Authorized Signatory Name] Name: Rusty Johnson
Title: [Insert Authorized Signatory Title] Title: Mayor
Attest: ______________________________
Melanie Sibbitt
City Clerk
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON ____________, 2023, UNDER
AGENDA ITEM NO. _______.
FOR USE AND RELIANCE ONLY BY THE
CITY OF OCOEE, FLORIDA;
APROVED AS TO FORM AND
LEGALITY this __ day of _______,
2023.
SHUFFIELD LOWMAN & WILSON, P.A.
By: _________________________________
City Attorney
ADDRESS FOR NOTICES (SELLER) ADDRESS FOR NOTICES (PURCHASER)
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Seller Address:
Chevron Land and Development Company
1500 Louisiana St., 38th Floor
Houston, Texas 77002
Attn: Rainier Viera
Email:RViera@chevron.com
Purchaser’s Address:
City of Ocoee, Florida
1 N. Bluford Ave.
Ocoee, Florida 34761
Attn: Robert D. Frank, City Manager
Email: rfrank@ocoee.org
With Copy To:
Shuffield, Lowman & Wilson, P.A.
1000 Legion Place, Suite 1700
Orlando, Florida 32801
Attn: Scott A. Cookson, City Attorney
email: scookson@shuffield.com
Phone: 407-581-9715
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ACKNOWLEDGMENT OF ESCROW AGENT
The undersigned acknowledges receipt of the Deposit referred to in this Agreement and agrees to perform
the obligations of the Escrow Agent with respect to the Deposit as provided.
Signature:
Date: BAKER & HOSTETLER, L.L.P.
By:
Name:
Title:
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END OF EXHIBIT A
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EXHIBIT B – DEED
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Prepared by:
Baker & Hostetler, LLP
SunTrust Center, Suite 2300
200 South Orange Avenue
Orlando, FL 32801-3432
(407) 649-4000
RETURN TO:
_______________________
_______________________
_______________________
_______________________
_______________________
SPECIAL WARRANTY DEED
THE STATE OF FLORIDA §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ORANGE §
THAT THE UNDERSIGNED, CHEVRON LAND AND DEVELOPMENT COMPANY, a
Delaware corporation (“Grantor”), whose address is 6001 Bollinger Canyon Road, V1356B, San Ramon,
California 94583-2324, for and in consideration of the sum of TEN DOLLARS ($10.00) cash, and other
good and valuable consideration paid to Grantor by , a
(“Grantee”), the receipt and sufficiency of which are hereby fully acknowledged
and confessed, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does
hereby GRANT, BARGAIN, SELL and CONVEY unto Grantee, whose address is
, all that certain real property in Orange County, Florida being more
particularly described in Exhibit “A” attached hereto and made part hereof for all purposes (the “Land”),
together with any and all improvements located on the Land, including without limitation, any and all
buildings or other structures and the fixtures attached thereto, fencing and groundwater monitoring wells
(the “Improvements”) and all of Grantor’s right, title and interest in and to (i) all easements, tenem ents,
hereditaments, appurtenances, development rights, and other benefits, if any, pertaining to or affecting the
Land; (ii) any land lying in the bed of any dedicated street, alley, road or avenue (before or after vacation
thereof and whether previously abandoned or vacated or hereafter abandoned or vacated) in front of or
adjoining the Land to the center line thereof; (iii) any strip, hiatus, gore, gap or boundary adjustment area
adjoining or affecting the Land; (iv) all minerals, oil, gas and other hydr ocarbon substances in, under, or
that may be produced therefrom; and (v) all riparian and other water rights relating to the Land and all right,
title or interest of Seller in any body of water situated on, under or adjacent to the Land (collectively, the
“Property”).
This conveyance is made and accepted subject to those certain matters set forth on Exhibit “B”
attached hereto and made a part hereof for all purposes (the “Permitted Exceptions”).
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TO HAVE AND TO HOLD the Property, together with all and singular the rights and
appurtenances thereto in anywise belonging unto the said Grantee, its successors and assigns, forever; and
Grantor does hereby bind Grantor and Grantor’s successors and assigns to WARRANT AND FOREVER
DEFEND all and singular the Land unto Grantee, and Grantee’s successors and assigns, against every
person whomsoever claiming or to claim the same or any part thereof, by, through or under Grantor, but
not otherwise, subject only to the Permitted Exceptions.
Grantor hereby adopts, establishes, and imposes upon the Property the following restrictions and
covenants (the “Protective Covenants”) and declares the Protective Covenants applicable to the Property,
including any and all portions thereof:
1. No use shall be made of Property groundwater, either on or off the Property, except for the
purposes of investigating or remediating Property groundwater.
2. The Property shall be used only for the following purposes: mixed use development
consisting of recreational fields (including ancillary uses such as dugouts, locker rooms,
batting cages, restrooms, concession stands, bleachers, etc.), commercial (including
restaurants and retail stores), parking, office and hotel (including hotel amenities and
conference centers) uses. Specifically, the Property shall not be used for residential uses,
day care centers, children’s homes, nursing homes, schools (including preschools,
elementary schools, and secondary schools), hospitals and other similar uses.
The foregoing Protective Covenants shall run with the title to the Property and shall be binding
upon all persons having or acquiring any right, title, or interest therein, or any part thereof, and shall inure
to the benefit of and be enforceable by Grantor, its successors and assigns, excluding Grantee and any future
record fee title owner of the Property and its/their successors and assigns as the owner or owners of all or
any portion of the Property, whether acquired by sale, assignment, inheritance, operation of law, trustee’s
sale, foreclosure, or otherwise (a “Property Owner”). The Protective Covenants may be terminated or
amended by the written consent of Grantor.
Property Owner, by Property Owner’s acceptance of a deed or conveyance of the Property or any
portion thereof, covenants and agrees, as a covenant running with the title to the Property binding upon
Property Owner, and Property Owner’s heirs, successors and assigns as owners of any portion of the
Property and inuring to the benefit of Grantor, that neither Property Owner nor any of Prop erty Owner’s
heirs, successors, assigns, tenants, lessees, occupants, licensees, or invitees or any other person holding or
using the Property or any portion thereof will use or be permitted to use any portion of the Property or
conduct or be permitted to conduct any operation on any portion of the Property in a manner that violates
the foregoing Protective Covenants.
Ad valorem taxes and special assessments, if any, against the Property for the year 20__ have been
prorated between Grantor and Grantee as of the date of this Special Warranty Deed and Grantee expressly
assumes liability for payment of taxes and assessments for the current year and subsequent years.
[Signature Pages Follow]
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SIGNATURE PAGE OF GRANTOR
EXECUTED to be effective the ___ day of , 20__ (the “Effective Date”).
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
GRANTOR:
By_________________________________
Name:______________________________
Title:
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF __________ )
On _____________________________, before me, ____________________________, Notary Public, personally
appeared _______________________________________________, who proved to me on the basis of satisfactory
evidence, to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
(SEAL)
Notary Public Signature
Exhibit “A” – Legal Description (to be attached)
Exhibit “B” – Permitted Exceptions (to be attached)
END OF EXHIBIT B
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EXHIBIT C – ACCESS AGREEMENT
SITE ACCESS AGREEMENT
(Outdoor)
This SITE ACCESS AGREEMENT (this “Agreement”) is between CHEVRON ENVIRONMENTAL
MANAGEMENT COMPANY, a California corporation (“EMC”), and __________________, a
______________ (“Grantor”), hereinafter referred to individually as a “Party” and collectively as
“Parties.”
RECITALS
A, Grantor holds record title to the property commonly known as Eagle Creek at Ocoee, as depicted
on Exhibit A (the “Property”).
B. EMC’s Affiliate, Chevron Land and Development Company, operated an agricultural research
facility on the Property.
C. EMC seeks Grantor’s authorization to access the Property to conduct the Work and Grantor is
willing to grant EMC access to the Property to conduct the Work, all pursuant to the terms of this
Agreement.
TERMS AND CONDITIONS
20. DEFINITIONS, INTERPRETATION, AND EXHIBITS
20.1 Definitions. In this Agreement, these capitalized words or expressions have the following
meanings:
“Affiliate” means any legal entity that controls, is controlled by, or is under common
control with, another legal entity. An entity is deemed to “control” another if it owns
directly or indirectly at least 50% of the shares or interests entitled to vote.
“Agency” means the Florida Department of Environmental Protection or other
governmental agencies having jurisdiction over environmental matters at the Property.
“Agreement” has the meaning set out in the introductory paragraph and includes all
exhibits listed in Section 1.2 (Interpretation and Exhibits).
“Applicable Law” means any law, regulation, statute, code, rule, order, guidelines,
memoranda, permit, policy, license, certification, decree, or standard having the effect of
law or similar legally effective measure that applies to this Agreement.
“EMC” has the meaning set out in the introductory paragraph.
“EMC Group” means EMC, its Affiliates, its joint interest owners, contractors, and
suppliers of any tier, and the shareholders, directors, officers, employees, and agents of all
of them.
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“Effective Date” means the latest date on the signature page when all Parties have signed
this Agreement.
“Grantor” has the meaning set out in the introductory paragraph.
“Party” and “Parties” has the meaning set out in the introductory paragraph.
“Property” has the meaning set out in the Recitals.
“Work” means all the activities necessary to abandon existing monitoring wells located on
the Property.
20.2 Interpretation and Exhibits. The words “includes” and “including” are illustrative, not
limiting, and the word “or” is not exclusive. Any exhibit attached to this Agreement or
made available via a hyperlink is part of this Agreement. If a conflict exists between the
terms of an exhibit and this Agreement, the Agreement prevails. The following exhibit(s)
are attached and made part of this Agreement:
(A) Exhibit A – Property Description.
21. SCOPE AND PURPOSE
21.1 Rights Granted and Purpose. Grantor grants to any EMC Group member a license over,
under, and across the Property for the purpose of performing the Work. Grantor shall
cooperate with EMC Group to effect the terms of this Agreement, including, if necessary,
the execution of additional documents to obtain Agency permits or approvals to install,
abandon, or remove EMC’s equipment.
21.2 Performance of the Work.
(A) EMC shall conduct and perform the Work in a prompt, safe, efficient, and
workmanlike manner, and in compliance with all Applicable Law.
(B) EMC shall give Grantor advance notice before the first entry to the Property to
conduct the Work, specifying the date and approximate time when Work at the
Property will commence.
(C) EMC shall perform all Work conducted under this Agreement at its sole cost and
expense.
21.3 Restoration. If entry onto the Property by any member of EMC Group or exercise by EMC
of any of its rights or obligations under this Agreement results in any physical damage to
the Property (ordinary wear and tear and legal abandonment of subsurface equipment
excepted), EMC shall promptly repair and restore the portions of the Property damaged to
substantially the same condition as existed prior to the damage.
21.4 Agency Communications. EMC shall promptly provide Grantor with copies of all final
reports and other communications submitted to the Agency regarding the Work. Further,
Grantor shall provide EMC with copies of any communications to the Agency regarding
the Work.
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21.5 Notice to EMC Prior to Construction. During the term of this Agreement, Grantor shall
give EMC at least 90 days advance written notice prior to any change in the intended use
of the Property or construction which could impact or damage EMC’s equipment on the
Property.
22. TERM
22.1 Term. This Agreement is effective from the Effective Date and terminates when EMC has
completed the Work and any restoration obligation under Section 21.3 (Restoration).
23. LIABILITY AND INDEMNITY
23.1 NO ADMISSION OF LIABILITY. The Parties acknowledge and agree that this
Agreement, the act of entering into it, and any act or omission pursuant to this
Agreement will not be construed as an admission of any nature.
23.2 INDEMNITY. Subject to Section 23.4 (Limitation on Classes of Damages), EMC shall
indemnify, defend, and hold harmless Grantor and its employees, successors, and
assigns from and against any claims brought against Grantor or any of its employees,
successors, and assigns within 24 months after termination of this Agreement for
personal injury or for physical damage to real or personal property arising out of the
performance of the Work on the Property by EMC Group, to the extent caused by
the negligence, breach of any obligation, fault, or liability of EMC Group, except to
the extent that such damages or claims are due to the reckless, negligent, or
intentional acts or omissions of Grantor or any of its employees, successors, and assigns.
23.3 LIENS. EMC shall discharge at once, or bond, or otherwise secure against all liens
and attachments that are filed in connection with the Work, and within 24 months
after termination of this Agreement shall indemnify, defend, and hold Grantor and
the Property harmless from and against any and all loss, damage, injury, liability,
and claims thereof resulting directly from such liens and attachments.
23.4 LIMITATION ON CLASSES OF DAMAGES. As to claims arising from this
Agreement or the performance of the Work on the Property by EMC Group, no Party
is liable to any other Party for any of the following: (A) indirect or consequential loss;
(B) loss of profits, loss of prospective economic advantage or benefit, or loss of
business opportunity, whether direct or indirect; or (C) punitive or exemplary
damages.
24. INSURANCE
24.1 EMC will require contractors who perform the Work under this Agreement to maintain all
insurance required by law and liability insurance coverage in accordance with the
contractors’ service agreements.
25. GOVERNING LAW AND RESOLUTION OF DISPUTES
25.1 Governing Law. This Agreement is governed by and interpreted in accordance with the
law of the State of Florida, without regard to its choice of law rules, except that the
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substantive and procedural rules of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 govern
Section 25.2 (Resolution of Disputes).
25.2 Resolution of Disputes. If a dispute arises between the Parties relating to this Agreement,
the Parties agree to resolve the dispute first by negotiation in good faith. If the dispute
cannot be resolved by direct negotiation, the Parties agree to mediate the dispute before
initiating litigation or arbitration. All mediation and arbitration fees and costs must be paid
equally and each Party shall bear its own attorneys’ fees and costs in connection with such
mediation and arbitration.
26. GENERAL PROVISIONS
26.1 Records and Inspection. Up until 24 months from the end of the calendar year in which
this Agreement is terminated, (A) Grantor shall retain all records related to this Agreement
and, (B) EMC may inspect at any time all records to confirm that the requirements of this
Agreement are met.
26.2 Prior Agreements. This Agreement supersedes all prior and contemporaneous
representations, agreements, understandings, and commitments between the Parties
concerning the subject matter of this Agreement.
26.3 Amendments. No amendment to this Agreement is effective unless made in writing and
signed by authorized representatives of all Parties.
26.4 Notices. All notices must be in writing and delivered by mail (postage prepaid), email, or
by a recognized courier service to the appropriate Party’s address set out in this Agreement.
Email notices must clearly state that it is a notice given under this Agreement. Notices are
effective when received by the recipient during the recipient’s regular business hours.
26.5 Counterparts. The exchange of counterpart signature pages between the Parties
constitutes execution and delivery of this Agreement. Executed signature pages sent by
email scan or otherwise by photocopy are valid means of delivery.
26.6 Severability and Savings. Each provision of this Agreement is severable and any
determination of invalidity does not affect any other provision.
26.7 Binding Effect. This Agreement will be binding on and inure for the benefit of the rightful
successors and permitted assigns of the Parties.
26.8 Assignment and Transfer. Each Party may, at any time without the other Party’s consent,
assign or transfer this Agreement to any party who either owns the Property or will perform
the Work. Further, Grantor shall provide EMC with 30 days prior written notice of any
such assignment or transfer and shall provide a copy of this Agreement to any and all
transferees.
The remainder of the page intentionally left blank.
1.
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IMPORTANT NOTICE: THIS AGREEMENT CONTAINS PROVISIONS REGARDING
INDEMNITIES THAT EXPRESS THE AGREEMENT OF THE PARTIES CONCERNING
CLAIMS ARISING OUT OF THIS AGREEMENT.
The Parties have executed this Agreement as evidenced by the following signatures of authorized
representatives of the Parties:
EMC:
CHEVRON ENVIRONMENTAL
MANAGEMENT COMPANY
GRANTOR:
_________________________________________
Signature: Signature:
Name: ______________________________ Name: _________________________________
Title: ______________________________ Title: _________________________________
Date: ______________________________ Date: _________________________________
AGREEMENT NOTICES AGREEMENT NOTICES
Attention: [Insert Name], Claims &
Agreements Specialist, Terminal
No. ______
Attention: [Insert Name]
Email: [Insert Notices Email] Email: [Insert Notices Email]
Phone: [Insert Phone] Phone: [Insert Phone]
Address: Chevron Environmental
Management Company
1500 Louisiana Street,
Floor 38135
Houston, Texas 77002
Address: [Insert Notices Address]
[Insert City, State Zip]
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END OF EXHIBIT C
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EXHIBIT D-DISCLOSURE NOTICE
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Baker & Hostetler, LLP
200 South Orange Avenue
Suite 2300
Orlando, FL 32801-3432
(407) 649-4000
Attn: David L. Evans, Jr.
DISCLOSURE NOTICE
KNOW ALL MEN BY THESE PRESENTS:
CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation
(“Chevron”), whose address is 6001 Bollinger Canyon Road, V1356B, San Ramon, California
94583-2324, is the owner of that certain tract of land, together with all improvements thereon,
located in Orange County, Florida and more fully described on Exhibit “A’ attached hereto and
made a part hereof for all purposes (the “Property”).
Chevron hereby declares and puts third parties on notice, including any and all future
owners of the Property, that consistent with the prior use of the Property for agricultural farming
operations and agricultural research activities, the presence of arsenic and other chemicals
consistent with such use are present, or have been present in the past, in soils and/or groundwater
on the Property in concentrations exceeding the Florida Department of Environmental Protection
Soil Cleanup Target Levels as defined in the Florida Administrative Code, Chapter 62-777
(“CTLs”).
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SIGNATURE PAGE OF CHEVRON
EXECUTED to be effective the ___ day of , 20__ (the “Effective Date”).
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
CHEVRON LAND AND
DEVELOPMENT COMPANY,
a Delaware corporation
By_________________________________
Name:______________________________
Title:
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF __________ )
On _____________________________, before me, ____________________________, Notary Public, personally
appeared _______________________________________________, who proved to me on the basis of satisfactory
evidence, to be the person(s) whose name(s) is/are subscribed to the within instrument and ackno wledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
(SEAL)
________________________________________
Notary Public Signature
Exhibit “A” – Legal Description (to be attached)
END OF EXHIBIT D
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EXHIBIT E – RELEASE AND INDEMNITY AGREEMENT
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Baker & Hostetler, LLP
200 South Orange Avenue
Suite 2300
Orlando, FL 32801-3432
(407) 649-4000
RELEASE AND INDEMNITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation
(“Chevron”), whose address is 6001 Bollinger Canyon Road, V1356B, San Ramon, California
94583-2324, has this day conveyed to_________________________________ , a ____________
(“Purchaser”), whose address is _______________________________________, that certain
tract of land, together with all improvements thereon, located in Orange County, Florida and more
fully described on Exhibit “A’ attached hereto and made a part hereof for all purposes (the
“Property”) pursuant to that certain Purchase and Sale Agreement (the “PSA”) dated ________,
2023, by and between Chevron, as seller and The City of Ocoee, as purchaser. As part of the
consideration for the conveyance by Chevron to Purchaser of the Property, Purchaser, on behalf
of itself and all future owners of the Property, has agreed as follows:
1. PURCHASER ACKNOWLEDGES AND AGREES THAT, OTHER
THAN AS SPECIFICALLY SET FORTH IN THE PSA OR IN ANY DOCUMENT
EXECUTED BY CHEVRON IN CONNECTION WITH ITS CONVEYANCE OF THE
PROPERTY TO PURCHASER (SUCH DOCUMENTS BEING REFERRED TO
HEREIN AS THE “SELLER CLOSING DOCUMENTS”), THE PROPERTY IS TO BE
SOLD TO AND ACCEPTED BY PURCHASER “AS IS” AND “WHERE IS,” WITH
ALL FAULTS, IF ANY, INCLUDING THE ENVIRONMENTAL CONDITION OF THE
PROPERTY, AND, OTHER THAN AS SPECIFICALLY SET FORTH IN THE PSA OR
IN ANY OF THE SELLER CLOSING DOCUMENTS, CHEVRON DISCLAIMS ANY
AND ALL WARRANTIES, AND MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND TO PURCHASER
INCLUDING WARRANTIES RELATING TO: (A) THE PHYSICAL CONDITION OF
THE PROPERTY, AND IMPROVEMENTS, IF ANY, AND ANY PERSONAL
PROPERTY; (B) THE HABITABILITY OF THE PROPERTY, OR IMPROVEMENTS;
(C) THE SUITABILITY, MERCHANTABILITY, OR DESIGN OF THE PROPERTY
FOR A PARTICULAR PURPOSE; (D) THE PRESENCE OR ABSENCE OF OR
CONTAMINATION BY HAZARDOUS MATERIALS AT, ON, UNDER, OR
EMANATING TO OR FROM THE PROPERTY; (E) THE COMPLIANCE OF THE
PROPERTY WITH LAWS AND REGULATIONS, INCLUDING ENVIRONMENTAL
LAW AND (F) THE SOIL CONDITIONS, DRAINAGE, FLOODING
CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS EXISTING IN, ON, OR
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UNDER THE PROPERTY. PURCHASER ACKNOWLEDGES THAT, , OTHER THAN
AS SPECIFICALLY SET FORTH IN THE PSA OR IN ANY OF THE SELLER
CLOSING DOCUMENTS, CHEVRON MAKES NO, AND EXPRESSLY DISCLAIMS
ANY, WARRANTIES OR REPRESENTATIONS CONCERNING THE ACCURACY
OR COMPLETENESS OF ANY OF THE PROPERTY DOCUMENTS.
2. SUBJECT TO THE SELLER’S RETAINED LIABILITIES (AS DEFINED
IN THE PSA) FOR WHICH PURCHASER WILL HAVE NO LIABILITY AND
SUBJECT TO CHEVRON’S REPRESENTATIONS AND WARRANTIES
CONTAINED IN SECTION 5 OF THE PSA, PURCHASER, FOR ITSELF AND
PURCHASER GROUP MEMBERS RELEASE CHEVRON GROUP MEMBERS FROM
ANY CLAIM OR LOSS (INCLUDING REASONABLE OUTSIDE ATTORNEYS’
FEES), WHETHER KNOWN OR UNKNOWN, LIQUIDATED OR CONTINGENT,
ASSERTED AGAINST OR INCURRED BY ANY PURCHASER GROUP MEMBER,
AND THAT ARISES FROM, IS IN CONNECTION WITH, OR IS RELATED IN ANY
MANNER TO THE FOLLOWING (COLLECTIVELY, THE “RELEASED
MATTERS”):
(A) ACTS OR OMISSIONS OF PURCHASER OR PURCHASER GROUP
WITH RESPECT TO, OR OCCURRING ON, THE PROPERTY
WHETHER BEFORE OR AFTER THE CLOSING DATE.
(B) THE OWNERSHIP, CONTROL, USE, POSSESSION, OR OPERATION
OF THE PROPERTY.
(C) ANY CONDITION EXISTING OR OCCURRING IN, ON, UNDER, OR
WITHIN THE PROPERTY, INCLUDING THE FOLLOWING:
(1) THE DEATH OR INJURY OF ANY PERSON, INCLUDING,
ANY PURCHASER GROUP MEMBER.
(2) THE DAMAGE OR DESTRUCTION OF THE PROPERTY OR
ANY PERSONAL PROPERTY ON THE PROPERTY.
(3) THE VIOLATION OR ALLEGED VIOLATION OF ANY
FEDERAL, STATE, LOCAL, OR MUNICIPAL LAW, RULE,
REGULATION, ORDER, JUDGMENT, DECREE, OR OTHER
REQUIREMENT, INCLUDING, REQUIREMENTS UNDER
PERMITS, LICENSES, CONSENTS, AND APPROVALS.
(4) THE EXISTENCE, ASSESSMENT, OR REMEDIATION OF
CONTAMINATION UPON, UNDER, IN, OR EMANATING TO
OR FROM THE PROPERTY.
(5) EMISSIONS, DISCHARGES, RELEASES, OR THREATENED
RELEASES, OR THE PRESENCE, GENERATION,
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MANUFACTURING, PROCESSING, DISTRIBUTION, USE,
TREATMENT, STORAGE, DISPOSAL, TRANSPORT,
LABELING, ADVERTISING, SALE, DISPLAY, OR
HANDLING, OF CONTAMINATION.
(6) ANY RESPONSE COSTS ANY CHEVRON GROUP OR
PURCHASER GROUP MEMBERS MAY INCUR WITH
RESPECT TO THE PROPERTY UNDER ANY
ENVIRONMENTAL LAW.
(7) ANY CAUSE OF ACTION OR THEORY OF ANY KIND
BECAUSE OF, IN CONNECTION WITH, OR RELATED TO,
THE OWNERSHIP AND OPERATION OF THE PROPERTY.
(8) ENVIRONMENTAL CONDITIONS, WHETHER THE
ENVIRONMENTAL CONDITIONS EXISTED BEFORE OR
AFTER THE CLOSING.
(D) CHEVRON GROUP’S FORMER OPERATIONS ON THE PROPERTY
OR ANY ADJACENT PROPERTY.
(E) ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES BY
PURCHASER, PURCHASER GROUP, OR ANY THIRD PARTY,
INCLUDING CLAIMS OR LOSSES FOR LOSS OF USE, RENTS,
ANTICIPATED PROFIT, OR BUSINESS OPPORTUNITY, OR
BUSINESS INTERRUPTION, CONSTRUCTION DELAYS,
DIMINUTION IN VALUE, LOSS OF GOODWILL BY PURCHASER,
OR MENTAL OR EMOTIONAL DISTRESS, OR FEAR OF INJURY,
DISEASE OR ILLNESS, OR TRESPASS, NUISANCE, OR
OTHERWISE.
(F) PURCHASER’S OR ITS AGENT’S, CONTRACTOR’S, OR
EMPLOYEE’S ACTIVITIES AND INSPECTIONS REGARDING THE
PROPERTY.
(G) PURCHASER’S OR PURCHASER GROUP’S CONSTRUCTION OR
DEVELOPMENT ACTIVITIES ON THE PROPERTY.
(H) PURCHASER’S PERFORMANCE OR FAILURE TO PERFORM ANY
DUE DILIGENCE REVIEWS AND SURVEYS OF THE PROPERTY,
INCLUDING HUMAN HEALTH RISK ASSESSMENTS OR SIMILAR
STUDIES.
(I) ANY ENVIRONMENTAL INVESTIGATIONS, ENVIRONMENTAL
CLAIMS, CLEANUP COSTS, OR ANY CLAIMS OR ACTION
ATTRIBUTABLE OR ARISING FROM SUBSURFACE
EXCAVATION, SOIL MOVEMENT, OR SPECIAL HANDLING,
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TREATMENT, OR DISPOSAL OF SOIL OR GROUNDWATER,
VAPOR INTRUSION PROTECTIONS, OR ENGINEERED
CONTROLS.
(J) ANY INFORMATION CONTAINED IN, OR THAT SHOULD HAVE
BEEN CONTAINED IN, THE PROPERTY DOCUMENTS.
RELEASED MATTERS DO NOT EXTEND TO MATTERS DETERMINED BY FINAL
NON-APPEALABLE JUDGMENT TO HAVE BEEN CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF A CHEVRON GROUP MEMBER,
EXCEPT THAT NEGLIGENCE OF ANY TYPE OCCURRING PRIOR TO CLOSING
WITH RESPECT TO MATTERS DESCRIBED IN SECTIONS 2(D) and 2(E) ABOVE
IS NOT EXCLUDED FROM THE DEFINITION OF RELEASED MATTERS.
PURCHASER RECOGNIZES THAT THERE IS A RISK THAT PURCHASER MAY
SUFFER A LOSS OR CLAIM THAT IS IN SOME WAY CAUSED BY THE
RELEASED MATTERS, AND PURCHASER AGREES THAT PURCHASER GROUP
MEMBERS ASSUME THIS RISK AND THAT THIS RELEASE WILL APPLY TO ALL
THE UNKNOWN OR UNANTICIPATED LOSSES OR CLAIMS. IF THIS RELEASE
IS JUDICIALLY DETERMINED TO EXCEED THAT PERMITTED BY APPLICABLE
LAW, THEN THE RELEASE WILL BE CONSTRUED SO AS TO PRESERVE THE
MAXIMUM RELEASE PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL PURCHASER OR ANY PERSON THAT IS PART OF
PURCHASER GROUP FILE OR PURSUE ANY LEGAL ACTION, PROCEEDING, OR
ARBITRATION AGAINST CHEVRON OR ANY OTHER CHEVRON GROUP
MEMBER WITH RESPECT TO ANY OF THE RELEASED MATTERS.
2. PURCHASER, [AND WITH RESPECT TO ANY ASSIGNEE OF THE
CITY OF OCOEE, THE PURCHASER GROUP], WILL INDEMNIFY, DEFEND (WITH
COUNSEL REASONABLY ACCEPTABLE TO CHEVRON), SAVE AND HOLD
HARMLESS CHEVRON GROUP MEMBERS FROM ANY CLAIM OR ANY LOSS,
INCLUDING, ALL RELEASED MATTERS EXCEPT SELLER’S RETAINED
LIABILITIES. A CLAIM OR LOSS WILL INCLUDE ANY CLAIMS OR ANY LOSSES
AS TO STRICT LIABILITY CLAIMS, INCLUDING THOSE UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY ACT (“CERCLA”) AND SIMILAR FLORIDA LAWS INCLUDING, BUT
NOT LIMITED TO, CHAPTERS 376 AND 403, FLORIDA STATUTES; AS WELL AS
ANY REGULATORY OBLIGATIONS THAT WOULD REQUIRE REMEDIATION
ACTIVITIES WITHOUT REGARD TO THE POINT IN TIME THAT THE
CONTAMINATION OCCURRED. IF THIS INDEMNITY IS JUDICIALLY
DETERMINED TO EXCEED THAT PERMITTED BY APPLICABLE LAW, THEN
THE INDEMNITY WILL BE CONSTRUED AS TO PRESERVE THE MAXIMUM
INDEMNITY PERMITTED BY APPLICABLE LAW. IF ANY REGULATORY
OBLIGATIONS REQUIRE REMEDIATION ACTIVITIES IN CONNECTION WITH
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THE PROPERTY. NOTHING IN THIS AGREEMENT PRECLUDES PURCHASER
FROM RECOVERING COSTS FROM PARTIES THAT ARE NOT CHEVRON GROUP
MEMBERS.
3. THE RELEASE AND INDEMNITY PROVISIONS SET FORTH IN THIS
AGREEMENT WILL, TO THE EXTENT LEGALLY PERMISSIBLE, BE
COVENANTS RUNNING WITH THE LAND AND WILL BE BINDING ON ALL
FUTURE OWNERS OF THE PROPERTY. ANY CONVEYANCE, TRANSFER, OR
ASSIGNMENT OF ALL OR PART OF THE PROPERTY BY PURCHASER, ITS
SUCCESSORS OR ASSIGNS, IN WHICH THE GRANTEE, TRANSFEREE, OR
ASSIGNEE FAILS TO EXPRESSLY ASSUME THE OBLIGATIONS OF PURCHASER
UNDER THIS AGREEMENT WILL BE DEEMED NULL AND VOID, AB INITIO.
PURCHASER FURTHER AGREES TO CAUSE THE PROVISIONS OF THIS
AGREEMENT TO BE INCLUDED IN ALL SUBSEQUENT SALES OR TRANSFERS
OF ANY INTEREST IN THE PROPERTY, AND TO CAUSE ALL PURCHASERS OR
TRANSFEREES OF THE PROPERTY TO EXPRESSLY ACKNOWLEDGE AND
ASSUME ALL OF PURCHASER’S OBLIGATIONS.
4. IN CONNECTION WITH ANY CLAIM BY A MEMBER OF THE
CHEVRON GROUP FOR INDEMNITY BY PURCHASER PURSUANT TO THIS
RELEASE AND INDEMNITY AGREEMENT, PURCHASER WAIVES AND
RELEASES ANY AND ALL DEFENSES THAT PURCHASER MAY OTHERWISE
HAVE TO SUCH CLAIM PURSUANT TO SECTION 376.82(2), FLORIDA
STATUTES.
As used in this Agreement, the following words or expressions have the meanings specified
below:
“Agreement” means this Release and Indemnity Agreement.
“Applicable Law(s)” means any law, regulation, rule, statute, order, policy, license,
registration, and any other standard or requirements having the effect of law that applies to the
Agreement or the parties hereto, or interpretations imposed by any Government Entity that apply
to this Agreement.
“Chevron Group” means Chevron Land and Development Company, its parent and
affiliates, whether wholly owned, partially owned, direct or indirect, together with their respective
directors, officers, managers, members, employees, contractors, representatives and agents.
“Contamination” means any Hazardous Material or toxic material, substance, chemical or
waste, contaminant, emission, discharge or pollutant or comparable material listed, identified or
regulated pursuant to any federal, state or local law, ordinance or regulation which has as a purpose
the protection of health, safety or the Environment, including petroleum or petroleum products or
wastes, per- and polyfluoroalkyl substances (whether or not currently regulated by any
Government Entity) or resulting from any cause, release, or source during Chevron’s ownership
of the Property or from Chevron’s use of the Property. As used in this Agreement, Contamination
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shall include the presence of arsenic in soils and/or groundwater on or underlying the Property at
concentrations in excess of cleanup target levels set forth in Chapter 62-777, Florida
Administrative Code.
“Environment” means all forms of fauna, flora, soil, natural resources; surface, subsurface,
or ground waters; land, ground, surface, or subsurface strata; ambient air; or any other
environmental medium, including the indoor environment, contained within or affected by the
Property or operations thereon.
“Environmental Condition” means Contamination at, on, under or emanating to or from
the Property or a condition or circumstance relating to the Property or operation of the Property
which is or is alleged to be not in compliance with Environmental Law.
“Environmental Law” means any Applicable Law relating to pollution; the protection of
the Environment; the release, emission, discharge, or disposal of any material or chemical
substance; human health or safety; Hazardous Materials; natural resource damage; product
registration; hazard communication, each as from time to time has been or may be amended or
adopted before or after the Effective Date, including: (A) the Occupational Safety and Health Act,
29 U.S.C.A. §651, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.A. §6901, et
seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A.
§9601, et seq.; the Clean Water Act, 33 U.S.C.A. §1251 et seq.; the Clean Air Act, 42 U.S.C.A.
§7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §3001, et seq.; the Toxic Substances
Control Act, 15 U.S.C.A. §2601 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.A. §2701 et seq.
and (B) Chapters 376 and 403, Florida Statutes as amended, and in or under the regulations adopted
or promulgated pursuant to such laws, including Chapter 62, Florida Administrative Code.
“Government Entity” means any department, court, tribunal, exchange, authority,
commission, board, instrumentality, or agency of any municipal, local, state, federal or other
governmental authority (including regulatory authorities and administrative bodies) and any
subdivision of the foregoing or any Person owned or controlled by the government.
“Hazardous Materials” means any chemical substance, product, waste, or other material
which is, or becomes identified, listed, published, regulated, or defined as, or which shows the
characteristics of, a hazardous substance, hazardous waste, hazardous material, toxic substance, or
other regulatory term, including oil, oil waste, by-products and components, naturally occurring
radioactive materials, hydrocarbons, and hydrocarbons waste, produced water, by-products and
components, polychlorinated biphenyls, and asbestos, or which is otherwise regulated or restricted
under any Environmental Law or by any Government Entity, or which may otherwise cause,
contribute to, or result in an Environmental Condition , or Environmental Obligation, including
without limitation, hazardous materials as defined in Chapters 376 and 403, Florida Statutes as
amended, and in or under the regulations adopted or promulgated pursuant to such laws, including
Chapter 62, Florida Administrative Code. As used in this Agreement, Hazardous Materials shall
include the presence of arsenic in soils and/or groundwater on or underlying the Property at
concentrations in excess of cleanup target levels set forth in Chapter 62-777, Florida
Administrative Code.
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“Person” means an individual, corporation, company, association, partnership, state,
statutory corporation, Government Entity, or any other legal entity.
“Property Documents” means the information materials relating to the Property that
Chevron has made available to Purchaser.
“Purchaser Group” means___________________, its parent, subsidiaries, and affiliated
companies, and their respective employees, officers, directors, elected officials, managers,
members, representatives, independent contractors, consultants, servants and agents, and their
respective predecessors and successors in interest and assigns, excluding Chevron.
Under no circumstances shall any individual who is a member of the Purchaser Group
(including but limited to officers, directors, elected officials, employees, managers, members,
representatives, independent contractors, consultants, agents, and their respective predecessors and
successors in interest and assigns) be subjected to any claims or losses incurred by the Purchaser
Group arising out of this Agreement. In the event of any conflict between this provision and any
other provision of this Agreement, this provision shall control.
[Signature Pages Follow]
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SIGNATURE PAGE OF CHEVRON
EXECUTED to be effective the ___ day of , 20__ (the “Effective Date”).
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
CHEVRON:
CHEVRON LAND AND DEVELOPMENT
COMPANY
By_________________________________
Name:______________________________
Title:
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF __________ )
On _____________________________, before me, ____________________________, Notary Public,
personally appeared _______________________________________________, who proved to me on the
basis of satisfactory evidence, to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
Notary Public Signature
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SIGNATURE PAGE OF PURCHASER
EXECUTED to be effective as of the Effective Date.
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
PURCHASER:
___________________________________
By_________________________________
Name:______________________________
Title:
STATE OF FLORIDA
COUNTY OF _____________
The foregoing instrument was acknowledged before me by means of [ ] physical presence or [ ]
online notarization, this _____ day of _________, 20 , by _________________, as
________________ of ________________________________, a _______________, on behalf of
said__________________________. He/she [__] is personally known to me or [__] has produced
a valid driver’s license as identification.
Signature of Notary Public (Print Notary Name)
AFFIX NOTARY STAMP
My Commission Expires:
Commission No.:
Personally known, or Produced Identification
Type of Identification Produced: _______________
Exhibit “A” – Legal Description (to be attached)
END OF EXHIBIT E
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EXHIBIT F – TERMINATION AGREEMENT
TERMINATION OF DEVELOPMENT AGREEMENT
This Termination of Development Agreement (this “Termination”) is made as of
the _____ day of_______________, by and between CHEVRON LAND AND
DEVELOPMENT COMPANY, a Delaware corporation (“Chevron”) and THE CITY OF
OCOEE, a Florida municipal corporation (the “City”). Chevron and the City are referred to herein
as the “Parties” and individually as a “Party”.
W I T N E S S E T H
WHEREAS, Chevron and the City entered into that certain Development Agreement dated
October 21, 2008, between Chevron and the City of Ocoee, recorded at Doc. # 20080729283, Book
9798, Page 0257 of the Public Records of Orange County, Florida (as amended, modified or
replaced being referred to herein as the “Development Agreement”) related to the development of
the Property described on Exhibit A attached hereto and made a part hereof for all purposes (the
“Property”); and
WHEREAS, Chevron has this day conveyed the Property to the City or the City’s
assignee and in connection therewith the Parties have agreed to terminate the Development
Agreement and evidence such termination;
NOW, THEREFORE, in consideration the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Chevron and the City agree to as follows:
1. Defined Terms. All capitalized terms used but not defined herein shall have
the respective meanings ascribed to them in the Development Agreement.
2. Termination. Effective as of the date hereof (the “Termination Date”), the
Development Agreement is hereby terminated and neither Party hereto shall have any
further rights, duties, liabilities or obligations thereunder.
3. Mutual Release. As of the Termination Date, the obligations, duties and
liabilities of Chevron and the City, respectively, under the Development Agreement shall
terminate and be of no further force or effect. In connection therewith, the City hereby fully
releases and forever discharges Chevron from all obligations, duties and liabilities arising
out of, related to or in connection with the Development Agreement. Likewise, Chevron
hereby fully releases and forever discharges the City from all obligations, duties and
liabilities arising out of, related to or in connection with the Development Agreement.
4. Successors and Assigns. This Termination shall be binding upon and inure
to the benefit of the Parties hereto and their respective successors and assigns.
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5. Governing Law. This Termination shall be governed by and construed and
interpreted in accordance with the laws of the State of Florida.
6. Captions. The captions of this Termination are solely for convenience of
reference and shall not affect its interpretation.
7. Counterparts. This Termination may be executed and delivered in any
number of counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument. Counterparts may
be delivered via electronic mail (including pdf or any electronic signature complying with
the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other t ransmission
method and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
[Signature Pages Follow]
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SIGNATURE PAGE OF CHEVRON TO
TERMINATION OF DEVELOPMENT AGREEMENT
IN WITNESS WHEREOF, Chevron has caused this Termination to be executed
by its duly authorized representatives as of the day and year first above written.
CHEVRON LAND AND DEVELOPMENT
COMPANY
By: ___________________________________
Name:_________________________________
Title:__________________________________
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SIGNATURE PAGE OF THE CITY TO
TERMINATION OF DEVELOPMENT AGREEMENT
IN WITNESS WHEREOF, The City has caused this Termination to be executed
as of the day and year first above written.
THE CITY OF OCOEE
By: ___________________________________
Rusty Johnson, Mayor
Title: Mayor
Attest: ______________________________
Melanie Sibbitt
City Clerk
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD ON
____________, 2023, UNDER AGENDA ITEM
NO. _______.
FOR USE AND RELIANCE ONLY BY THE CITY
OF OCOEE, FLORIDA; APROVED AS TO FORM
AND LEGALITY this __ day of _______, 2023.
SHUFFIELD LOWMAN & WILSON, P.A.
By: _________________________________
City Attorney
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END OF EXHIBIT F
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