HomeMy WebLinkAboutItem #07 Agreement for Sale and Purchase w/ Centex Homes - Ocoee Crown Point
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ATTORNEYS AT LAW
111 NORTH ORANGE AVEI\UE, SUITE 1800
ORLANDO, Fl 32801.2386
POBOX 2193
ORLANDO, FL 32802.2193
407.423.7656
407.648.1743
WWW.FOLEY.COM
FOLEY & LARDNER LLP
407.244.3248
MEMORANDUM
CLlENT.MATTER NUMBER
020377.0781
TO:
The Honorable Mayor and City Commissioners of the City of Ocoee
FROM:
Paul E. Rosenthal, Esq., City Attorney
DATE:
February 13, 2007
RE:
Agreement for Sale and Purchase with Centex Homes / Ocoec Crown Point
Residential Land
On December ll, 2005, the City issued an RFP for the sale of the single family
residential lands within the Ocoee Crown Point PUD. Various proposers submitted responses to
the RFP. On June 6, 2006, the City Commission selected Centex Homes as the top ranked
respondent and directed staff to negotiate a binding purchase agreement. Since that time, staff
has held numerous meetings with Centex in furtherance of the goal of finalizing an agreement
for the sale of the residential land. From the beginning of the negotiations, the focus of Cent ex
was to assure its ability to development the Property in accordance with a conceptual master plan
to be approved as part of the contract. As such, initial meetings addressed this plan which has
gone through numerous revisions to meet the needs of the City and Centex and assure
compliance with the PUD requirements. The focus later shifted to the details of the Purchase
Agreement.
All of us are aware that the real estate market has experienced a significant
slowdown during the course of these contract negotiations. Many national and local builders
have terminated contracts and forfeited deposits. This has required greater flexibility on the part
of the City to order to reach an agreement consistent with market conditions. While the
proposed Purchase Agreement is generally consistent with the RFP as to the purchase price and
construction obligations of Centex, the Purchase Agreement does deviate from the timeline
originally proposed when the RFP was issued. It also provides Centex with the opportunity to
walk away from the deal with less money at risk than originally contemplated by the RFP. City
staff believes that these adjustments to the timeline and risk factors are consistent with current
market conditions.
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Pursuant to the provisions of the City Charter, the proposed Purchase Agreement
must be approved following an advertised public hearing to consider the sale. The public
hearing for consideration of the proposed Purchase Agreement as been advertised.
The following is a highlight of the key provisions of the Purchase Agreement:
1. Purchase Price: $45,000 per Lot as shown on the approved Final Subdivision
Plan, but in no event less than $l2,500,000. The Purchase Price is paid in phases (based on a
phased closing as outlined below) with the amount paid at the first closing being no less than
$6,250,000 and the balance being paid at the second closing. [The RFP contemplated payment
ofthe full purchase price at a single closing, with a post-closing adjustment ifthe final
subdivision plan resulted in more lots.]
2. Deposit: $1,250,000 paid as follows: (i) $110,000 previously paid ("First
Deposit"); (ii) $100,000 to be paid at thc time of execution of Purchase Agreement ("Second
Deposit"); and (iii) $1,040,000 to be paid at end of Feasibility Period (as discussed below)
("Third Deposit"). The First and Second Deposits delivered to the City are at risk and non-
refundable except for certain limited circumstances as set forth in the Agreement. The Third
Deposit is at risk, but is refundable if certain conditions precedent to closing are not satisfied.
[The RFP contemplated thc cntire deposit being at risk, non-refundable and paid at the time of
contract execution.]
3. Feasibility Period: Centex will have until September 28,2007 to investigate the
feasibility of purchasing the Property. They are not required to spend any funds during this
Feasibility Period. Centex may terminate for any rcason during the Feasibility Period. The
Feasibility Period may be extended under certain limited circumstances. For example, the
Feasibility Period can be extended for up to 90 days if the School Board docs not approve the
legal description of the elementary school site. If Cent ex terminates, then the City keeps the
$210,000 First and Second Deposits. If Centex does not terminate, then the Third Deposit must
be delivered to the City. [The RFP did not contemplate a Feasibility Period. Centex may seek to
negotiate further extensions of the Feasibility Period if market conditions have not improved by
September 2007; however, the City is not obligated to grant any such extensions.]
4. Closing: Closing will occur in 2 Phases. The "Phase 1 Closing" will be on the
later of (i) 290 days after the expiration of the Feasibility Period, or (ii) 45 days after City
Commission approval of the final subdivision plan, but in no event later than September 28,
2008. The "Phase 2 Closing" will be 1 year after the Phase I Closing. The closing dates can be
extended under certain circumstances. [The RFP contemplated a single closing no later than
December 1, 2006. Further, the RFP did not contemplate that there would be an approved final
subdivision plan at the time of the closing.]
5. Centex Conceptual Plan: The Centex Conceptual Plan is attached to the
Agreement as Exhibit G and is being approved as part of the Agreement. Centex is obligated to
develop the Property substantially in accordance with the Centex Conceptual Plan unless
otherwise agreed to by the City. [City staff has reviewed the Centex Conceptual Plan and
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recommends approval thereof. Approval ofthe Centex Conceptual Plan as part of the
Agrccment will control the subsequent City Commission's rcvicw ofthe Final Subdivision Plan.]
6. Centex Product Home Construction Plans. Details of the Homes which Centex
intends to construct are attached as Exhibit H and are being approved as part of the Agreement.
Cent ex is obligated to construct Homes on Lots consistent with the Centex Product Home
Construction Plans unless otherwise agreed to by the City. [City staff has reviewed the Centex
Product Home Construction Plans and recommends approval thereof. Approval of the Centex
Product Home Construction Plans as part of the Agreement will control the future staff review
thereof, subject to Centex meeting building code requirements.]
7. Conditions Precedent to Closing: The obligations of Cent ex to close are
conditioned upon (i) no moratorium, (ii) the City's representations being true and correct at each
closing, and (iii) no change in the environmental condition of the Property. If these conditions
are not satisfied at each closing, Centex can terminate and receive back $1,040,000 of its deposit
with respect to the first closing and $250,000 of its deposit with respect to the second closing.
[These conditions were not specifically addressed in the RFP, but are not unusual contract
provisions. ]
8. Community Park: Various options are addressed for Centex to design, permit and
develop, at the City's expense, a public community park on City land adjacent to the residential
property. The City is obligated, at a minimum, to grade, sod, landscape and irrigate the Park
within 3 years from the date of the Phase 2 Closing. Centex will build, at its expense, a public
community meeting room within the Park. [It is anticipated that funds for this purpose will be
set aside from the proceeds received at the Phase 2 Closing.]
9. City Right to Sell Other Lands to Centex: The City may negotiate the sale of
additional lands within the Ocoee Crown Point PUD to Centex without seeking further
competitive proposals. [This is contemplated by the RFP.]
10. Description of Property and Survey: The Property contains approximately 75
gross acres ofland (exclusive of wetlands). The final acreage and legal description of the
Property is subject to a survey. Centex will, at its expense, provide a survey ofthe Property and
other lands (including the elementary school site) within 60 days after the expiration of the
Feasibility Period.
11. Obligations of Centex: The Agreement imposes numcrous obligations on Centex
consistent with the RFP, including the obligations to construct a loop roadway ($2,293,455), bike
paths ($105,600), and community meeting room ($150,000). Dollar numbers are cost estimates
provided by Centex with its March 2006 response to the RFP. Additionally, Centex is
responsible for preparing a final subdivision plan and plat (which plat will includes lands owned
by the City), obtaining all approvals needed in connection therewith, and constructing all
improvements required by such approvals.
12. Subphasin,g of Development: While Centex is closing on the Property in 2
phases, the development will occur in a "single phase" which will include lands not yet
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purchased from the City. The single phase will include 2 subphases in order to allow Centex to
obtain a certificate of completion for Centex Development Phase I a and pull building permits tor
Homes at an earlier date than would be allowed without subphasing. No building permits will be
issued for more than 100 Homes until such timc as Cent ex has obtained a certificate of
completion for Centex Development Phase lb.
13. Restrictions on Development: Consistent with the RFP, the homeowner
association covenants will contain provisions restricting investor sales, rental, condominiums,
vacation/time shares and similar types of real property provisions to ensure a high quality, stable
living environment with year round permanent residents.
14. Impact Fees: Centex is responsible for the payment of all impact fees in
accordance with normal City procedures.
15. Default: In the event of a default by Centex, the sole remedy of the City is to
keep the Deposit provided by Centex. The City does not have the right to sue Centex for specific
performance. If the City fails to perform, Centex may sue the City for specific performance or
terminate and receive a refund of its Deposit. Each party must be given a notice of default and
opportunity to cure.
16. Brokers: There are no brokers in connection with this transaction.
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OCOEE CROWN POINT PUD RFP #06-001
AGREEMENT FOR SALE AND PURCHASE
BETWEEN
CITY OF OCOEE
("SELLER")
AND
CENTEX HOMES
("BUYER")
DATED FEBRUARY 20, 2007
FINAL
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TABLE OF CONTENTS
l. RECITALS. ............................... .......... ..............."...................... ................... ..................... 3
2. DEFINITIONS. ...... ......... ................................... '................. ........... ........ .................. ........ 3
3. AGREEMENT TO SELL AND PURCHASE; THE PROPERTY. ............................. 6
4. DEPOSIT. .... ..... ......... ............ .............................. ...................... ......... ......... ...................... 6
5. PURCHASE PRICE. ........ ................... .................. ........ ........................ ............................. 7
6. TITLE. ............... ............ ............. ................................. .................... ............................ ...... 7
7. SUR VE Y. ........................................................................................................................... 9
8. FEASIBILITY PERIOD; ACCESS TO PROPERTY. ............................................... 11
9. CONDITIONS PRECEDENT TO SETTLEMENT.................................................... 13
1 O. OBLIGATIONS OF BUyER.......... ....... ............ .................. ............................... ........... l4
ll. OBLIGATIONS OF SELLER. ...................................................................................... 17
l2. EXCESS FILL........... ....... ..... ................... ..................................................... .................. 18
13. COMMUNITY PARK.......... ......... .............. ....... ...................................... ...................... l8
14 . CLOSING. ....................................................................................................................... 2l
l5. CONVEYANCE; DEVELOPMENT RESTRICTIONS. ............................................ 22
l6. EXPENSES, ASSESSMENTS AND PRORATIONS.................................................. 22
17. DOCUMENTS TO BE DELIVERED AT CLOSING................................................. 23
18. REPRESENTATIONS. ............. .................. ................ ........................ .............. ............. 24
19. RISK OF LOSS. ..............................................................................................................26
20. CONNECTION FEES; IMPACT FEES. ..................................................................... 26
21. COMPLIANCE WITH GOVERNMENTAL REGULATIONS................................ 27
22. CONDITION OF REAL ESTATE............................ ...... ....... ..... ................ ...... ..... ....... 27
23. CONVEYANCE OF ADDITIONAL LANDS.............................................................. 27
24. DEFAULT AND REMEDIES. ...................................................................................... 27
25. BROKER'S COMMISSION. ........... ........................ ...... .............. ............... ............ ...... 28
26 . NOTICE S......................................................................................................................... 29
27. FURTHER DOCUMENTATION. .................. ............... ............... ...... ........ ...... ............ 30
28. TIME IS OF THE ESSENCE. ....................................................................................... 30
29. ASSIGNMENT.. ............ ...... ... .... ............ .... ...... ... ...... ............ ......... ........... ........ .............. 30
30. PROCEEDS OF SALE AND CLOSING PROCEDURE. .......................................... 30
3l. ATTORNEYS' FEES. .................................................................................................... 3l
32. NO AGENCY. ..... ................ ........................ ....................... ............................................. 31
33. ENTIRE AGREEMENT. ........................... ....................... ...................... ....................... 31
34. SURVIVING CLAUSES. .... .................. ................. ....... ............... .................................. 31
35. AGREEMENT NOT TO BE RECORDED................................................................. 3l
36. INTERPRETATION AND CONSTRUCTION. ..........................................................32
37. CONSTRUCTION 0 F AGREEMENT. ....... ....... ......... ...... ........ .......... ............ ............ 32
38. MISCELLANEOUS. ....... ......................... ....... ...... ...... ...... ............. ............ .................... 32
39. COUNTERPARTS; FACSIMILE COPIES. ............................................................... 32
40.. RADON, GAS. .............. ........ ........................................... ................................ .................. 33
4l. APPROVAL AT PUBLIC HEARING.......... ............................ ..... ............... ......... ....... 33
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AGREEMENT FOR SALE AND PURCHASE
(OCOEE CROWN POINT PUD RFP #06-001)
THIS AGREEMENT FOR SALE AND PURCHASE (this "Agreement"), is made and
entered into as of the 20th day of February, 2007 (the "Effective Date"), by and between CITY
OF OCOEE, a Florida municipal corporation (the "Seller") and CENTEX HOMES, a Nevada
general partnership (the "Buyer"):
RECITALS
WHEREAS, on or about December 11, 2005, Seller issued Ocoee Crown Point PUD
Request for Proposals #06-00l, which was subsequently amended by Addendum #l thereto
dated January 13, 2006, Addendum #2 thereto dated February 6,2006 and Addendum #3 thereto
dated February 15, 2006 (collectively, the "RFP"); and
WHEREAS, in connection with the RFP, the Seller provided Buyer with the "RFP
Packet", the "PUD Documents" and the "Due Diligence Materials" (as such terms are defined in
the RFP); and
WHEREAS, on January 12, 2006, Buyer attended a Mandatory Pre-Application
Conference held by the Seller and had the opportunity, at that time, to ask questions regarding
the RFP and to inspect the real property which is the subject of the RFP; and
WHEREAS, Buyer submitted a sealed response to the RFP dated March 7, 2006 (the
"Buyer's RFP Response"); and
WHEREAS, the City Manager reviewed the Buyer's RFP Response and the response
submitted by other proposers who responded to the RFP and based upon such review
recommended that the City Commission rank the Buyer as the top ranked respondent and
proceed to negotiate a binding purchase agreement with Buyer; and
WHEREAS, on June 6, 2006 the City Commission considered the recommendation of
the City Manager and selected the Buyer as the top ranked respondent to the RFP and directed
staff to negotiate a binding purchase agreement; and
WHEREAS, on June 9, 2006 the Seller delivered to the Buyer a Notice of Award in
connection with the RFP; and
WHEREAS, in accordance with the requirements of the City of Ocoee Charter, the City
Commission held an advertised public hearing on February 20, 2007 to consider the proposed
sale to Buyer pursuant to the RFP and, following such hearing, approved this Agreement.
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WIT N E SSE T H:
NOW, THEREFORE, in consideration of the premises, and in further consideration of
the covenants and benefits flowing between the parties as set forth hereinbelow, the Seller and
Buyer, each intending to be bound, hereby agree as follows:
l. RECIT ALS. The above Recitals are true and correct and are incorporated herein
and made a part of this Agreement.
2. DEFINITIONS. Capitalized terms that are not defined when first used in this
Agreement have the meanings set forth below.
(A) Amended pun Land Use Plan: The current PUD land use plan for the
Ocoee Crown Point PUD, as approved by the Ocoee City Commission on September 16, 2003
by the adoption of Ordinance No. 2003-34 and last amended on August 17, 2004 by the adoption
of Ordinance No. 2004-l6, the foregoing being incorporated herein and by this reference made a
part hereof.
(B) Authorities: All federal, state and local governmental and quasi-
governmental agencies, bodies, entities, boards and authorities that have jurisdiction over the
Property, the furnishing of utilities or other services to the Property, or the subdivision,
improvement, development, occupancy, sale or use of the Property, including without limitation,
the Federal Housing Administration and the Veterans Administration.
(C) Buyer: Centex Homes, a Nevada general partnership.
(D) Buver's RFP Response: The sealed response dated March 7, 2006
submitted by Buyer in response to the RFP, which is incorporated herein by this reference and
made a part hereof.
(E) Centex Conceptual Plan: That certain Conceptual Plan for the
development of the Property which has been prepared by the Buyer, including the "regulating
plan" for the development of the Property, said plan being attached hereto as Exhibit "G" and
by this reference made a part hereof.
(F) Centex Product Home Construction Plans: Those certain construction
plans for Homes which are proposed to be constructed by the Buyer on one or more Lots within
the Property, said plans being attached hereto as Exhibit "H" and by this reference made a part
hereof.
(G) City: The City of Ocoee, Florida.. Unless otherwise noted, all references
herein to the City shall be deemed to refer to the City of Ocoee in its governmental capacity and
not in its capacity as the owner of the Property and the seller under this Agreement.
(H) Closin2: The act of settlement of the purchase and sale of the Phase 1
Property or the Phase 2 Property, as the case may be, at which Seller conveys title to Buyer by
delivery of a deed and Buyer delivers the Phase 1 Purchase Price or the Phase 2 Purchase Price,
as the case may be, to Seller.
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(I) Closing Date: The date on which the Closing of the Phase 1 Property or
the Phase 2 Property, as the case may be, occurs.
(1) Crown Point Phase II Plat: The plat of the Property, the elementary
school tract (Tract #4), the community park site (Tracts #3 and 3B), the waterfront village (Tract
#1), the Park Road and the extension thereof through the Property, and the unplatted ponds
adjacent the Park Road and the Property, all of which shall be consistent with the approved Final
Subdivision Plan.
(K) County: Orange County, Florida.
(L) Deposit: $l ,250,000.00, paid and deposited in accordance with Paragraph
4 hereof.
(M) Due Diligence Materials: Those certain documents listed on Exhibit
"C" attached hereto and by this reference made a part hereof which were provided to Buyer in
connection with the RFP.
(N) Effective Date: The date on which this Agreement is approved by the
City Commission of the City Ocoee, such date being inserted on the first page of this Agreement.
(0) Final Subdivision Plan: The final subdivision plan for the Property to be
prepared by Buyer and submitted to the City for approval, as such final subdivision plan may be
approved by the City. In addition to the Property, the Final Subdivision Plan shall also show and
depict as Tracts those additional parcels of land which are to be included in the Crown Point
Phase II Plat.
(P) Homes: The residential structures and related improvements to be
constructed by Buyer on the Lots.
(Q) Interlocal A2reement: The Interlocal Agreement Regarding Coca-Cola
Property, dated June 13, 2000, between the City and the School Board, as amended August 5,
2003 by the First Amendment thereto and as further amended on September 20, 2005 by the
Second Amendment thereto.
(R) Lot: A plot of land within the Property occupied or intended to be
occupied by a Home and shown on the Crown Point Phase II Plat.
(S) Park Road: The public roadway to be constructed by Buyer from Ocoee
Crown Point Parkway, past the community park and existing ponds to the boundary of the
Property.
(T) Phase 1 Property: That portion of the Property proposed to include at
least 139 Lots as set forth and depicted on the Centex Conceptual Plan. The exact location and
configuration ofthe Phase 1 Property will be set forth on the approved Final Subdivision Plan.
(U) Phase 2 Property: The remaining portion of the Property not included
within the Phase 1 Property. The exact location and configuration of the Phase 2 Property will
be set forth on the approved Final Subdivision Plan.
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(V) Property: The real property contammg approximately 75 gross acres
(exclusive of wetlands and 100 year floodplain land) located in the City of Ocoee, Orange
County, Florida as more particularly described on !~xhibit "A" attached hereto, and all
easements, tenements, hereditaments and appurtenances belonging or in anywise appertaining to
the Property, including without limitation of the foregoing, all right, title and interest of the
Seller in and to 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 such portion of the Property to the center line thereof. The exact
acreage of the Property is subject to survey and may include more or less acres based on such
survey.
(W) PUD: The Ococe Crown Point Planned Unit Development as approved
and adopted by the City Commission of the City of Ocoel~.
(X) PUD Declaration: Declaration of Conditions of Approval (Ocoee Crown
Point PUD) dated September l6, 2003 and recorded SI~ptember 30, 2003 in Official Records
Book 7l27, Page 4804, as amended by First Amendment thereto recorded in Official Records
Book 08215, Page 4805, and by Second Amendment the:reto recorded in Official Records Book
08215, Page 4825, all of the Public Records of Orange County, Florida.
(Y) PUD Documents: Those certam documents listed on Exhibit "B"
attached hereto and by this reference made a part hereof which were provided to Buyer in
connection with the RFP.
(Z) pun Development Standards: The Ocoee Crown Point PUD
Development Standards dated September 2002, which are incorporated herein by this reference
and made a part hereof.
(AA) pun/PsP or pun Land Use Plan I Preliminary Subdivision Plan: The
Ocoee Crown Point PUD Land Use Plan/Preliminary Subdivision Plan as amended on June 15,
2004 and as date stamped received by the City on June 17, 2004 and approved by the Ocoee City
Commission on August 17,2004, which is incorporated herein by this reference and made a part
hereof.
(BB) Phase 1 Purchase Price: The Purchase Price Per Lot times the number of
Lots located within the Phase 1 Property as shown on the Final Subdivision Plan; provided,
however, that the Phase 1 Purchase Price will in no event be less than $6,250,000.00
(CC) Phase 2 Purchase Price: The Total Purchase Price less the Phase 1
Purchase Price.
(DD) Purchase Price Per Lot: Forty-Five Thousand and NollOO Dollars
($45,000.00).
(EE) RFP or Request for Proposals: The Ocoee Crown Point PUD Request
for Proposals #06-001, which was subsequently amended by Addendum # 1 thereto dated January
l3, 2006, Addendum #2 thereto dated February 6, 2006 and Addendum #3 thereto dated
February l5, 2006, which are incorporated herein by this reference and made a part hereof.
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(FF) RFP Packet: Those documents consisting of the RFP, the PUD
Documents and the Due Diligence Materials.
(GG) School Board: The School Board of Orange County, Florida.
(HH) Seller: The City of Ocoee, Florida. Unless otherwise noted, all references
herein to the Seller shall be deemed to refer to the City of Ocoee in its capacity as the owner of
the Property and the seller under this Agreement and not in its capacity as a governmental entity
having jurisdiction over the Property and the Subdivision.
(II) Subdivision: The proposed project to be developed by the Buyer on the
Property in accordance with the requirements of this Agreement and the Final Subdivision Plan.
(11) Total Purchase Price: The Purchase Price Per Lot times the number of
Lots located within the Phase 1 Property and the Phase 2 Property as shown on the Final
Subdivision Plan, but in no event shall the Total Purchase Price be less than $l2,500,000.00.
3. AGREEMENT TO SELL AND PURCHASE; THE PROPERTY. Seller
agrees to sell the Property to Buyer and Buyer agrees to purchase the Property from Seller for the
purchase price and on terms and conditions set forth in this Agreement hereinbelow.
4. DEPOSIT.
(A) Buyer shall deliver (or has heretofore delivered) to Seller (by check drawn
on Buyer or by cashier's check or certified funds or wire transfer) earnest money deposits in the
amounts set forth below and in accordance with the following schedule:
(i) Prior to the Effective Date, the sum of ONE HUNDRED TEN
THOUSAND AND NO/100 DOLLARS ($110,000.00), as provided for in the
RFP (the "Initial Deposit");
(ii) On or before the Effective Date, the sum of ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($100,000.00) (the "Second Deposit"),
for a total Deposit of $21 0,000.00; and
(iii) On or before 5:00 p.m. on the last day of the Feasibility Period, the
sum of ONE MILLION FORTY AND NOIlOO DOLLARS ($1,040,000.00)
(the "Third Deposit"), for a total Deposit of $l ,250,000.00.
The Initial Deposit, the Second Deposit and the Third Deposit are hereinafter cumulatively
referred to as the "Deposit".
(B) The Deposit when delivered by Buyer to Seller shall be "at risk" and
"non-refundable" except as follows: (i) except in the event of Seller's inability to deliver title as
herein required; (ii) except as provided in the paragraph hereof entitled Defaults and Remedies;
and (iii) except as otherwise expressly set forth in this Agreement.
(C) Notwithstanding any provision contained in this Agreement to the
contrary, in the event any portion of the Third Deposit is not paid to Seller on or before the date
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and time the same is due, then it is agreed between the parties hereto that this Agreement may
thereafter be terminated by Seller by written notice from Seller to Buyer. In such event the
Initial Deposit and Second Deposit paid by Buyer to Seller shall be retained by Seller as
liquidated damages in the same manner as if there had been a default by Buyer hereunder, and
the parties hereto shall thereafter be relieved of all further rights and obligations hereunder,
except for those rights and obligations which expressly survive the termination of this
Agreement.
(D) The following portion of the Deposit shall be credited against the Phase I
Purchase Price payable at the Phase 1 Closing: $l,OOO,OOO.OO. The remaining portion of the
Deposit in the amount of $250,000.00 shall be credited against the Phase 2 Purchase Price
payable at the Phase 2 Closing.
(E) The Seller may use the Deposit to pay for costs associated with the
development of the Ocoee Crown Point PUD, including the reduction of any loans obtained by
Seller in connection therewith. Buyer shall not be entitled to any interest which may be earned
by Seller on the Deposit.
5. PURCHASE PRICE.
(A) The Total Purchase Price for the Property shall be the Purchase Price Per
Lot times the number of Lots located within the Phase 1 Property and the Phase 2 Property as
shown on the Final Subdivision Plan, but in no event shall the Total Purchase Price be less than
$12,500,000.00.
(B) The applicable portion of the Total Purchase Price (or such greater or
lesser amount as may be necessary to complete payment of the applicable portion of the Total
Purchase Price after credits, adjustments, and prorations) shall be paid by Buyer to Foley &
Lardner, LLP, as closing agent (the "Closing Agent") upon each Closing by wire transfer. The
Closing Agent shall disburse such funds at each closing in accordance with the provisions of the
paragraph hereof entitled Proceeds of Closing and Closing Procedure.
6. TITLE.
(A) Within ten (10) days from the Eff{;~ctive Date, Seller's counsel shall obtain
and deliver to the Buyer or Buyer's counsel an owner's title insurance commitment (the "Title
Commitment") in the amount of the $12,500,000.00 for an owner's title insurance policy (the
"Title Policy") showing marketable fee simple title to the Property vested in Seller subject only
to (i) taxes and assessments for the current year of each Closing and thereafter, (ii)
comprehensive land use plans, zoning, restrictions, prohibitions and other requirements imposed
by governmental authority, (iii) restrictions and matters appearing on the plat, if any, or
otherwise common to the subdivision, (iv) public utility easement, (v) matters set forth in this
Agreement, (vi) matters appearing in the public records of Orange County, Florida, which affect
the Property, (vii) the rights of the School Board under Paragraphs 4 and 5 of the unrecorded
Second Amendment to the Interlocal Agreement, (viii) unrecorded Ocoee Crown Point PUD
Development Standards dated September 2003, and (ix) those matters which will be discharged
by Seller at or before each Closing (which will be listed in Schedule B-1 of the Commitment).
The Title Commitment shall be issued by First American Title Insurance Company or such other
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ORLA_ 407262.6
title company as may be mutually agreed upon by Seller and Buyer (the "Title Company"). The
Title Commitment shall include copies of all exceptions of record noted therein. The cost of the
Title Commitment, Title Policy and any title searches or status of title reports/certificates and
updates associated therewith shall be paid by Seller. The premium for the Title Commitment and
Title Policy shall be at the minimum promulgated rate.
(B) The Buyer shall have until 5 :00 p.m. on the 20th day after receipt of the
Title Commitment (the "Title Examination Period") to examine the Title Commitment and give
written notice to Seller specifying, within the Title Examination Period, any title matters which
render title to the Property unmarketable or which preclude development of the Property for
residential purposes or which are otherwise unacceptable to Buyer (collectively, the "Title
Objections"). Marketable title shall be determined according to the applicable Title Standards
adopted by the authority of the Florida Bar and in accordance with law. If the Title Objections
render title to the Property unmarketable or preclude development of the Property for residential
purposes or are otherwise unacceptable to Buyer, then Seller shall have a period of twenty (20)
days after receipt of such written notice to cure or remove any Title Objections of which notice
in writing has been given, or to cause the Title Company to remove the Title Objections as
exceptions to title in the Title Commitment, all so as to meet the requirements of this Agreement.
Notwithstanding any provision contained herein to the contrary, Seller shall not be obligated to
attempt to cure or remove any such Title Objections, but may, at Seller's sole option, elect to do
so. Further, Seller shall not be required to maintain any lawsuit to cure or remove any such Title
Objections. In the event an encumbrance or lien liquidated in amount appears of record, it will
be discharged by Seller at or prior to the applicable Closing and such encumbrance or lien will
not be considered to be a Title Objection. In the event Seller fails to respond to any notice of
Title Objections which may be delivered by Buyer, then Seller shall be deemed to have elected
not to cure such Title Objections.
(C) In the event Seller cures or removes any such Title Objections within said
twenty-day period, then the transaction shall be closed on the applicable Closing Dates provided
for herein. If Seller shall be unable or unwilling to cure or remove any such Title Objections or
otherwise elects not to cure such Title Objections, then Buyer shall have the option to terminate
this Agreement within ten (10) days after the expiration of such twenty (20) day period or to
waive such Title Objections and proceed to close on the Property in which case Buyer shall
accept title to the Property as it then is and without setoff or reduction in the Total Purchase
Price. In the event Buyer shall elect to terminate because of an uncured or uncurable Title
Objection, then the Initial Deposit shall be retained by Seller in consideration for Seller's
execution of this Agreement and for having kept the Property off the market, and Seller shall
promptly return to Buyer the Second Deposit paid by Buyer to Seller, and the parties hereto shall
thereafter be relieved of all rights and obligations hereunder, except for those rights and
obligations which expressly survive the termination of this Agreement. If Buyer fails to give
written notice of Title Objections within the Title Examination Period or fails to terminate this
Agreement within ten (10) days after the expiration of said 20-day period, then title as shown in
the Title Commitment and the matters set forth in Schedule B-2 thereof (except for the standard
exceptions) shall be deemed acceptable to Buyer.
(D) The parties hereto acknowledge that the Title Commitment will initially
include the Property and other lands owned by Seller due to the lack of an exact legal description
of the Property. Following receipt of the Survey and the agreement between the parties as to the
8
ORLA_ 407262.6
legal description of the Property, the Phase I Propelty and the Phase 2 Property, the Title
Commitment shall be endorsed to reflect the legal description of the Property, the Phase 1
Property and the Phase 2 Property as shown on the Survey and agreed to by the parties hereto
and such endorsement shall remove any Schedule B-2 exceptions which do not affect or
encumber the Property or any applicable portion thereof,
(E) The Title Commitment shall be endorsed or "marked up" at each Closing
so as to show title to the Phase 1 Property or the Phase 2 Property, as the case may be, in Buyer
as required herein and to reflect the Phase 1 Purchase Price and the Phase 2 Purchase Price,
respectively, as the insured amount for such portion of the Property being closed. At each
Closing, Seller shall provide the Title Company with such affidavit as is necessary to delete the
standard exceptions for parties in possession, unfiled mechanics' liens and unrecorded leases.
Seller's counsel will cause the Title Company to limit the survey exception to matters actually
shown on such Survey to be obtained by Buyer as provided in Paragraph 7 hereof. The Title
Policy to be issued by the Title Company shall be delivered to Buyer promptly after each
Closing, subject only to title exceptions or conditions of title accepted by Buyer in accordance
with the terms hereof, matters which would be revealed by an accurate survey of the Property,
matters set forth in the Title Commitment which are not objected to by Buyer or which are
deemed to be acceptable to Buyer, and other matters expressly set forth in this Agreement.
(F) If requested by Buyer at least fomteen (14) days prior to each Closing, the
Seller agrees to cause the Title Company to issue and deliver to Buyer, at Buyer's sole cost and
expense, a mortgagee title insurance commitment for a mortgagee title insurance policy on the
same terms and conditions as set forth in this Agreement for the issuance of the Title
Commitment and Title Policy, with such additional requirements as may be related to the
mortgage financing with respect to the Property. If said mortgagee title policy is issued on a
simultaneous basis with the Title Policy and the insun:d amount thereof does not exceed the
insured amount under the Title Policy, then the cost of such mortgagee title commitment and
mortgagee title policy shall be $500.00 plus the cost of any endorsements requested by Buyer,
unless a higher rate is required under Florida law. If the insured amount exceeds the applicable
portion of the Total Purchase Price, then the premium for such excess shall be at the minimum
promulgated rate which shall be in addition to the foregoing charges, unless a higher rate is
required under Florida law.
7. SURVEY.
(A) Within sixty (60) days from the expiration of the Feasibility Period (as
hereinafter defined), the Buyer shall, at Buyer's expense, obtain and deliver to Seller a current
boundary survey of (i) the Property, (ii) the elementary school site (Tract #4 of the PUD/PSP),
(iii) the community park site (Tracts #3 and 3B of the PUD/PSP), (iv) the waterfront village
(Tract #1) which will consist of no less than 10 acres of developable land, (v) the ponds (Tracts
#39 and 44 of the PUD/PSP), and (vi) the Park Road (hereinafter referred to as the "Survey").
The Survey will be prepared by a land surveyor duly licensed and registered in the State of
Florida (the "Surveyor") in accordance with the Minimum Technical Standards for Surveys in
the State of Florida (Chapter 61 G 17-6, Florida Administrative Code). The Surveyor selected by
Buyer shall be subject to the prior approval of Seller, which approval will not unreasonably be
withheld. The Survey shall be consistent with the PUD/PSP and Centex Conceptual Plan unless
otherwise agreed to by Seller in its sole and absolute discretion. The Survey will include a metes
9
ORLA_ 407262.6
and bounds legal description of (i) the Property, (ii) the elementary school site and (iii) the
community park site, (iv) the waterfront village, (v) the ponds, and (vi) the Park Road, along
with the certified acreage of each such tract, and shall certify that such tracts are contiguous to
each other without any gap or overlap. The Survey shall show any easements, Permitted
Exceptions and matters reflected in the Title Commitment which are capable of being shown on
the Survey, encroachments or overlaps on the Property. The Survey shall also show Ocoee
Crown Point Parkway. The Survey shall be certified to the Seller, the Buyer, Buyer's lender, if
any, the Title Company, Foley & Lardner, LLP, and the School Board.
(B) Within sixty (60) days prior to the Phase 1 Closing, the Buyer, at Buyer's
expense, shall have the Survey updated to show the Phase 1 Property and the Phase 2 Property
and the legal descriptions thereof; provided, however, that the Buyer may, at its option, include
such in the original submittal of the Survey.
(C) At least thirty (30) days prior to each Closing, the Buyer, at Buyer's
expense shall have the Survey updated and recertified with respect to the portion of the Property
being closed so that the Survey will be current within ninety (90) days of the Closing Date with
respect to such portion of the Property being closed; provided, however, that if the Survey is
current within 90 days of the Closing Date, then the foregoing requirement for an update and
recertification shall not be applicable.
(D) The parties hereto acknowledge that the exact boundaries of the Property,
the Phase 1 Property and the Phase 2 Property have not been finalized as of the Effective Date,
but will be based on the Centex Conceptual Plan. Accordingly, the Survey (and any updates
thereof) and legal descriptions set forth thereon shall be subject to the review and approval of the
Seller, which approval will not unreasonably be withheld unless they are inconsistent with the
Centex Conceptual Plan. To that end, the parties agree to work together in a cooperative manner
during the course of preparation of the Survey. In the event the Seller requires any revisions to
the Survey and/or legal descriptions set forth thereon, the Buyer shall, at Buyer's expense, cause
such revisions to be made.
(E) The Survey and legal descriptions set forth thereon shall also be subject to
the review and approval of the School Board as provided in Interlocal Agreement (the "School
Board Approval"). The parties hereto expressly acknowledge that it is necessary to obtain the
School Board Approval of the survey and legal description of the elementary school tract and
that such tract must accommodate the School Board prototype elementary school. In the event
the School Board requires any revisions to the Survey and/or legal descriptions set forth thereon,
the Buyer shall, at Buyer's expense, cause such revisions to be made in a timely manner. The
City agrees to be responsible for obtaining any approvals needed from the School Board.
(F) In order to facilitate the obtaining of the School Board Approval, the
Buyer, at Buyer's expense, shall, no later than May 1, 2007, provide the City with a sketch of
description and legal description of the elementary school site (Tract #4 of the PUD/PSP) (the
"Elementary School Site Sketch and Legal"). The Elementary School Site Sketch and Legal
shall be consistent with the Centex Conceptual Plan unless otherwise agreed to by the Seller and
must accommodate the School Board prototype elementary school. In the event the School
Board requires any revisions to the Elementary School Site Sketch and Legal, the Buyer shall, at
Buyer's expense, cause such revisions to be made in a timely manner. The City agrees to be
10
ORLA_ 407262.6
responsible for obtaining any approvals needed from the School Board with respect to the
Elementary School Site Sketch and Legal.
(G) The legal description of the Phase 1 Property and the Phase 2 Property as
set forth on the Survey shall be used on the applicable deed, Title Policy, and all other closing
documents.
8. FEASIBILITY PERIOD~ ACCESS TO PROPERTY.
(A) Buyer shall have until 5:00 p.m. on September 28, 2007 (the "Feasibility
Period") within which to investigate the physical and economic feasibility of developing the
Property for residential purposes in accordance with the Centex Conceptual Plan. Nothing
contained herein shall be construed to require that the Buyer expend any monies on further due
diligence, surveying or engineering prior to the expiration of the Feasibility Period. Further,
nothing contained herein shall be construed to require that the Buyer undertake any of the
Obligations of Buyer as set forth in Paragraph 10 hereof prior to the expiration of the Feasibility
Period.
(B) Buyer shall have the right from the Effective Date through the Phase 2
Closing Date, unless this Agreement is terminated at an earlier date, to personally or through
agents, employees, and independent contractors enter upon the Property, the Park Road, the
community park and other lands owned by Seller which are intended to be included within the
Crown Point Phase II Plat for the purposes of, at its own expense, inspecting the Property, the
Park Road, community park and other lands owned by Seller which are intended to be included
within the Crown Point Phase II Plat, making surveys, soil tests, environmental assessments, test
borings, topographical studies and conducting such other investigations of the Property, the Park
Road, the community park and other lands owned by Seller which are intended to be included
within the Crown Point Phase II Plat which Buyer deems appropriate.
(C) Buyer shall assume all risks invollved in entering upon the Property, the
Park Road, the Park (as hereinafter defined) and other lands owned by Seller which are intended
to be included within the Crown Point Phase II Plat for the performance of such activities and
shall indemnify, defend and hold Seller harmless from and against all loss, liability, costs,
claims, demands, damages, actions, causes of action, suits and expenses arising out of, related to
or caused by Buyer in the exercise of any of its rights under this paragraph, and Buyer shall hold
Seller and the Property, the Park Road, the Park tract and other lands owned by Seller which are
intended to be included within the Crown Point Phase II Plat harmless from any liens arising out
of such activities thereon. Upon request of Seller, the Buyer shall, at its sole cost and expense,
restore the Property, the Park Road, the Park tract and other lands owned by Seller which are
intended to be included within the Crown Point Phase II Plat to its original condition in the event
this Agreement fails to close; except that the foregoing shall not apply to any portion of the
Property which has been closed by Buyer. The provisions of this Subparagraph (D) shall survive
the termination of this Agreement and the Closings hereunder.
(D) In the event Buyer, in its sole discretion, is not satisfied the physical or
economic feasibility of developing the Property for residential purposes in accordance with the
Centex Conceptual Plan, then in such event Buyer may, in Buyer's sole discretion, elect to
terminate this Agreement by furnishing written notice thereof to Seller prior to the expiration of
II
ORLA_ 407262.6
the Feasibility Period and in such event the Initial Deposit and Second Deposit will be retained
by Seller as liquidated damages and in consideration for Seller having kept the Property off the
market and the parties hereto shall be relieved of all rights and obligations hereunder except for
those rights and obligations which expressly survive the termination of this Agreement.
(E) Notwithstanding any provision contained herein to the contrary, in the
event (i) Buyer terminates this Agreement pursuant to the terms hereof, or (ii) this Agreement is
terminated due to a default by Buyer under the terms hereof, or (iii) this Agreement is otherwise
terminated in accordance with the provisions hereof through no fault on the part of Seller, then in
any of such events all conceptual plans, final subdivision plans, site engineering, stormwater
plans, investigations, studies, reports, surveys, environmental assessments, and other evaluations
and plans regarding the Property which have been prepared by or on behal f of Buyer
(collectively, the "Studies") shall become the property of Seller, without warranty or
representation (provided that Seller shall not be entitled to the Centex Product Home
Construction Plans, architectural plans and drawings, market studies, economic models, and
internal studies and evaluations, which are expressly excluded from the definition of "Studies")
and in such event then, within ten (10) days of said termination of this Agreement: (i) Buyer
shall, if required by Seller, restore the Property at Buyer's expense to substantially the same state
and condition existing prior to Buyer's activities thereon, and shall provide Seller with a written
affidavit of this fact (the "Restoration Affidavit"); and (ii) Buyer shall provide Seller with a
written affidavit attesting to the fact that Buyer has paid in full all persons performing work for
Buyer with respect to the Property who will have the right to file a lien against the Property if not
paid (the "Payment Affidavit"). The provisions of this paragraph shall survive the termination of
this Agreement.
(F) Within thirty (30) days from Seller's receipt from Buyer of the Elementary
School Sketch and Legal, the Seller will submit the Elementary School Sketch and Legal to the
School Board for review and approval as they relate to the location and configuration of the
elementary school site as required in the Interlocal Agreement. It will be the responsibility of
Seller to obtain School Board approval of the Elementary School Site Sketch and Legal (the
"Preliminary School Board Approval"). In the event Seller has not obtained the Preliminary
School Board Approval prior to the expiration of the Feasibility Period and provided that the
Buyer has provided the Elementary School Sketch and Legal to the Seller on or before May 1,
2007, then the Buyer may elect, by written notice to Seller, to extend the Feasibility Period for
up to 90 days so that Seller may obtain the Preliminary School Board Approval. If Buyer fails to
deliver the Elementary School Sketch and Legal to Seller on or before May 1, 2007, then Buyer
shall not be entitled to extended the Feasibility Period based on the failure of Seller to obtain the
Preliminary School Board Approval.
(G) Prior to the Phase I Closing, Seller will submit the Centex Conceptual
Plan, the Survey and the legal description set forth thereon to the School Board for review and
School Board Approval as it relates the location and configuration of the elementary school site
as required in the Interlocal Agreement. It will be the responsibility of Seller to obtain the
School Board Approval. In the event Seller has not obtained the School Board Approval prior to
the Phase 1 Closing, then either party may elect, by written notice to the other party, to extend
the Phase 1 Closing Date for up to 90 days so that Seller may obtain the School Board Approval.
12
ORLA_ 407262.6
(H) The Buyer shall submit to the City for review an accurate survey of all
significant live oak trees located within the Property. The City will review any such tree survey
and identify healthy live oaks with a reasonable chance of survival based on the layout of the
Centex Conceptual Plan and the final expected topography. In connection with the Final
Subdivision Plan, Buyer will seek to preserve any such healthy live oak trees which are
identified by the City as aforesaid consistent with the Centex Conceptual Plan and the final
expected topography. The foregoing requirement to save live oak trees is not intended to
preclude the construction of a Home within a platted lot. The foregoing shall satisfy the
requirements of the City Land Development Code for a. tree survey and tree preservation plan.
Buyer, at its option, may submit the foregoing to the City prior to the expiration of the Feasibility
Period and prior to submission of the proposed Final Subdivision Plan.
9. CONDITIONS PRECEDENT TO SETTLEMENT. Buyer's obligation to
complete each Closing shall be conditioned upon the satisfaction (or Buyer's written waiver
thereof) of each of the conditions precedent set forth in this paragraph. The Conditions
Precedent to Closing to each are as follows:
(A) Moratorium. There shall exist no general moratorium imposed or
announced by any Authority or utility supplier that would result in any Authority restricting,
reducing, delaying or denying permits necessary for the development, construction, use or
occupancy of the portion of Property being used as a residential development.
(B) Representations. The representations of Seller set forth in Paragraph
l8(B) hereof shall be true and correct as of the applicable Closing Date as to the portion of the
Property being closed.
(C) Environmental. There shall exist no change in the environmental
condition of the portion of Property being closed from that set forth in the following Phase 1
Environmental Site Assessment report obtained by Buyer prior to the Effective Date: Report No.
497653, dated August, 2006 prepared by Universal Engineering Sciences.
With respect to the Phase 1 Closing, if the foregoing Conditions Precedent to Closing are not
true and correct on the Phase 1 Closing Date with respl~ct to the Phase 1 Property, then either
Seller or Buyer shall be entitled to extend the Phase 1 Closing Date until the Conditions
Precedent to Closing are satisfied, but in no event shall the Phase 1 Closing Date be extended
later than September 30, 2008. If following any such extension the Conditions Precedent to
Closing have not been satisfied with respect to the Phase 1 Closing, then Buyer shall,
notwithstanding the default provisions of the paragraph hereof entitled Default and Remedies,
elect as its sole remedy, to either (1) terminate this Agreement and in such event the Initial
Deposit and Second Deposit will be retained by Seller in consideration for having kept the
Property off the market, the Buyer shall receive a refund of the Third Deposit and thereafter the
parties hereto shall be relieved of all rights and obligations hereunder except for those rights and
obligations which expressly survive the termination of this Agreement, or (2) close this
transaction with no offset or reduction in the Phase 1 Purchase Price
With respect to the Phase 2 Closing, if the foregoing Conditions Precedent to Closing are not
true and correct on the Phase 2 Closing Date with respect to the Phase 2 Property, then either
Seller or Buyer shall be entitled to extend the Phase 2 Closing Date until the Conditions
13
ORLA_ 407262.6
Precedent to Closing are satisfied, but in no event shall the Phase 2 Closing Date be extended
later than two (2) years from the Phase 1 Closing Date. If following any such extension the
Conditions Precedent to Closing have not been satisfied with respect to the Phase 2 Closing, then
Buyer shaIl, notwithstanding the default provisions of the paragraph hereof entitled Default and
Remedies, elect as its sole remedy, to either (l) terminate this Agreement and in such event the
Buyer shaIl receive a refund of the remaining portion of the Deposit held by Seller in the amount
of $250,000 and thereafter the parties hereto shall be relieved of all rights and obligations
hereunder except for those rights and obligations which expressly survive the termination of this
Agreement or which survive the Phase 1 Closing, or (2) close this transaction with no offset or
reduction in the Phase 2 Purchase Price.
1 O. OBLIGATIONS OF BUYER.
(A) The Buyer shall, at Buyer's expense, prepare and apply for approval of the
Final Subdivision Plan by submitting said plan to the City for review within sixty (60) days
following the expiration of the Feasibility Period. The Buyer shall proceed in good faith and
with appropriate diligence to apply for and obtain approval of the Final Subdivision Plan. The
processing thereof will follow all normal development review and permitting procedures and all
application fees, review costs, building permit fees, and impact fees will be the responsibility of
the Buyer. Seller hereby grants Buyer a limited power of attorney for the purpose of executing
any documents which are reasonably required to apply for and obtain approval of the Final
Subdivision Plan. The Final Subdivision Plan shall (i) be substantially consistent with the
Centex Conceptual Plan, (ii) shall show the Phase 1 Property and the Phase 2 Property, (iii) shall
provide for the development of the infrastructure for the Phase 1 Property and the Phase 2
Property to take place as a single phase notwithstanding the division of the property into 2 phases
which is being done for conveyance purposes only, (iv) shall comply with the Development
Requirements set forth in Exhibit "E" attached hereto and by this reference made a part hereof,
(v) include the design and location of the community meeting room with the Park, and (vi)
include the 25' upland buffer as a separate tract which would then be conveyed to the City
subject to a conservation easement in favor of St. Johns River Water Management District.
(B) The Buyer shall, at Buyer's expense, prepare and apply for approval ofthe
Crown Point Phase II Plat and all other permits, approvals and other entitlements necessary for
development of the Property (collectively, the "Final Approvals & Permits"). The Buyer shall
proceed in good faith and with appropriate diligence to apply for and obtain approval of the Final
Approvals & Permits following approval of the Final Subdivision Plan. Notwithstanding the
foregoing, the Buyer shall submit the following applications within ninety (90) after the
expiration of the Feasibility Period: (i) environmental resource permit application to St. Johns
River Water Management District Permit, and (ii) sewer and water utility plans to Orange
County. To the extent that the City is the Authority responsible for reviewing and issuing
approvals of any of the Final Approvals & Permits, the processing thereof will follow all normal
development review and permitting procedures and all application fees, review costs, building
permit fees, and impact fees will be the responsibility of the Buyer. Seller hereby grants Buyer a
limited power of attorney for the purpose of executing any documents prior to Phase 2 Closing
which are reasonably required to obtain the Final Approvals & Permits for development of the
Property and any applications and documents reasonably required to obtain any other approvals
from any Authority desired by Buyer which would assist Buyer in being able to construct and
sell its Homes on the Property after each Closing. Buyer shall not execute any applications and
14
ORLA_ 407262.6
documents which commit Seller to any monetary obligations without Seller's express written
consent, which may be granted or withheld in Seller's sole discretion. Seller will promptly
execute any applications and documents reasonably n~quested by Buyer in connection with
obtaining such Final Approvals & Permits.
(C) Notwithstanding any provIsIOn contained herein to the contrary, the
"single phase" Final Subdivision Plan and the Crown Point Phase II Plat may, at Buyer's option,
provide for development in accordance with the Final Subdivision Plan and the recording of the
Crown Point Phase II Plat to occur in two subphases which are hereinafter referred to as "Centex
Development Phase 1 a" and "Centex Development Phase 1 b". In such event, (i) Centex
Development Phase 1 a and Centex Development Phase 1 b will be shown on the Final
Subdivision Plan and must be acceptable to the City, (ii) Centex Development Phase 1 a must be
capable of standing on its own and meeting all City subdivision requirements without any
reliance on Cent ex Development Phase 1 b, (iii) Buyer, at its option, may separately plat Centex
Development Phase 1 a and Centex Development Phase 1 b, subject to the requirements
hereinafter set forth and subject to the further requirement that the plats for Centex Development
Phase 1 a and Centex Development Phase 1 b shall be processed, approved and recorded on a
concurrent basis (so that together they constitute the Crown Point Phase II Plat), (iv) Buyer may
obtain a separate Certificate of Completion from the City for Centex Development Phase 1 a and
Centex Development Phase lb, (v) upon the recording of the plat for Centex Development Phase
la and the issuance of a Certificate of Completion for O~ntex Development Phase la, the Buyer
shall be entitled to receive building permits for the construction of Homes within Centex
Development Phase 1 a and certificates of occupancy D)r such Homes in accordance with the
requirements of the City applicable thereto, and (vi) the Final Subdivision Plan shall include as a
condition of approval the requirement that no building permits will be issued for more than 100
Homes within Centex Development Phase 1 a until such time as the Buyer has obtained a
certificate of completion for Centex Development Phase 1 b.
(D) Unless otherwise agreed to by Seller, the Buyer shall, at Buyer's expense,
develop the Property substantially in accordance with the Centex Conceptual Plan; provided,
however, the parties hereto acknowledge that the final subdivision plan has not been finalized as
of the Effective Date and that the Centex Conceptual Plcm is intended to be a flexible document
serving as the basis for the Final Subdivision Plan.
(E) Unless otherwise agreed to by Seller, the Buyer shall, at Buyer's expense,
construct Homes on the Lots consistent with the Centex Product Home Construction Plans.
Buyer agrees that it will not materially deviate from the Centex Product Home Construction
Plans without the prior written approval of the Seller which may be granted or withheld in
Seller's sole discretion.
(F) The Buyer shall, at Buyer's expc;:nse, develop the Property as a single
phase project in accordance with the development requirements set forth in Exhibit "E" attached
hereto and by this reference made a part hereof. Notwithstanding the foregoing, upon
completion of the development of the Phase 1 Propeliy, Seller shall issue a Certificate of
Completion therefore (i.e. the completion of development of the Phase 2 Property shall not be a
requirement for Seller to issue a Certificate of Completion for the Phase 1 Property nor for the
issuance of building permits and Certificates of Occupancy for homes constructed within the
l5
ORLA_ 407262.6
Phase 1 Property). Building permits for model homes in the Phase 1 Property will be issued by
Seller upon installation of rock base and operational water lines.
(G) The Buyer acknowledges that the County is the sewer and water service
provider for the Property. The Buyer shall, at Buyer's expense, apply to the County for approval
of its sewer and water plans, which plans shall be consistent with the Utility Master Plan. Such
utility plans shall also be subject to review and approval by the City in conjunction with the Final
Subdivision Plan.
(H) A conceptual master storm water system has been designed for the PUD as
set forth in the RFP Packet. The Buyer shall design the stormwater system for the Property to (i)
complement the master system, and (ii) accept stormwater from the future elementary school site
in accordance with requirements of the Second Amendment to the Interlocal Agreement. The
foregoing stormwater plan shall be prepared by Buyer as part of the Final Subdivision Plan.
(1) The Buyer shall, at Buyer's expense, form a homeowner association
("HOA") for the Subdivision to maintain all common areas and retention ponds within the
Property, including stormwater ponds serving the future elementary school. The School Board
shall not be required to make any contributions towards the construction, operation, repair and
maintenance of the Buyer's stormwater ponds. The Seller may also elect to establish a
stormwater utility to operate and maintain the Master Stormwater System.
(1) The covenants and restrictions for the Subdivision will contain provisions
restricting investor sales, rentals, condominiums, vacation/time shares or similar types of real
estate provisions to ensure a high quality, stable living environment with year-round permanent
residents. The form of covenants and restrictions will be subject to the review and approval of
the Seller. Buyer may, at its option, elect to submit the form of covenants and restrictions to
Seller for review at least twenty (20) days prior to the expiration of the Feasibility Period in
which case the Seller shall provide Buyer with its comments on such form of covenants and
restrictions at least five (5) days prior to the expiration of the Feasibility Period.
(K) Marketing brochures distributed on-site for the Subdivision will disclose
the currently approved future uses within the PUD such as school uses, athletic facilities,
commercial uses and anything that may cause future residents to claim adverse noise, traffic or
lighting effects due to such future uses. Specific disclosures of the foregoing will be included in
the covenants and restrictions and in all residential sales contracts. If requested by the Buyer, the
Seller will confirm the accuracy and sufficiency of any such disclosures.
(L) Buyer shall not change the members of the Project Team identified in the
Buyer's RFP Response without the prior approval of the Seller, which approval will not be
umeasonably withheld.
(M) The Buyer shall, at Buyer's expense, be responsible for the design and
installation of a permanent monument sign within the City's sign easement at the Ocoee Crown
Point Parkway/Ocoee-Apopka Road intersection. The design for such signage shall be included
within the Final Subdivision Plan and shall be subject to the review and approval of the Seller.
The design shall allow for use of the signage by the Seller and other developers with the PUD.
16
ORLA_ 407262.6
11. OBLIGATIONS OF SELLER.
(A) The Seller agrees to execute the Crown Point Phase II Plat as the owner of
certain lands which are included in the Crown Point Phase II Plat; provided, however, that the
Seller shall not be required to make any infrastructure improvements in connection therewith.
(B) The Seller hereby approves the development of the Property consistent
with the Centex Conceptual Plan; provided, however, that the foregoing shall not be construed to
in any way obligate the City to approve the Final Subdivision Plan.
(C) The Seller hereby approves the construction of Homes on the Lots
consistent with the Centex Product Home Construction Plans; provided, however, that the
foregoing shall not be construed as a City Building Department approval of the Centex Product
Home Construction Plans, it being recognized that the Buyer must separately apply for building
permit approval. The Seller agrees to approve any proposed Home designs which are
substantially consistent with the Centex Product Home Construction Plans. The Seller may, at
its option, hire an owner's representative to review the construction plans for all Homes in order
to assure consistency with the foregoing requirements. Nothing herein shall be construed as a
waiver of the regulatory authority of the City to review and approve construction plans for
compliance with the Florida Building Code and other applicable laws, statutes, ordinances, rules
and regulations.
(D) The Seller agrees that the homeowner's association for Property shall be
permitted to hold monthly meetings in the community meeting room to be constructed within the
Park, all at no cost or expense to the homeowner's association or the individual members thereof.
Further, residents within the Subdivision will have the opportunity to utilize the community
meeting room in accordance with such rules and procedures as may be adopted by the City with
respect thereto. The timing of the use of the community meeting room shall be subject to
scheduling with the City.
(E) At the Phase 1 Closing, the Seller will grant to the Buyer a non-exclusive
license to construct improvements on the Phase 2 Property and other lands owned by the Seller
in accordance with the requirements of the Final Subdivlsion Plans and the Final Approvals and
Permits, including but not limited to all grading and site work for the Property and other lands
owned by Seller. Buyer may, at its option, elect to submit a proposed form of such license
agreement to Seller for review at least twenty (20) days prior to the expiration of the Feasibility
Period in which case the Seller shall provide Buyer with its comments on such form of license
agreement at least five (5) days prior to the expiration of the Feasibility Period.
(F) At the Phase 1 Closing, the Seller will (i) assign to Buyer its rights under
the permit issued by the US Army Corps of Engineers (the "ACOE Permit") to perform work
required by this Agreement, and (ii) grant to Buyer a non-exclusive license to perform on lands
owned by the City any off-site work required by such permit. Buyer shall comply with all
requirements of such permit and shall provide the Seller with "as-builts" needed to comply with
the permit requirements. Buyer may, at its option, elt:ct to submit a proposed form of such
assignment and license agreement to Seller for review at least twenty (20) days prior to the
17
ORLA_ 407262.6
expiration of the Feasibility Period in which case the Seller shall provide Buyer with its
comments on such form of assignment and license agreement at least five (5) days prior to the
expiration of the Feasibility Period. The ACOE Permit currently requires the work described
therein to be completed by October 21,2007. During the Feasibility Period, Seller shall apply
for a modification of the ACOE Permit to extend the completion date consistent with the terms
of this Agreement. In the event Seller has not obtained such modification prior to the expiration
of the Feasibility Period, either party may elect to extend the Feasibility Period for up to 90 days
so that the Seller may obtain such modification. Further, Seller agrees that Seller is and shall
remain responsible for any mitigation required under the ACOE Permit.
(G) At the Phase 1 Closing, the Seller will (i) assign to Buyer its rights under
the permits issued by the St. Johns River Water Management District (the "St. Johns Permit") in
order for the Buyer to modify such permits in connection with the permitting and construction of
the Park Road, and (ii) grant to Buyer a non-exclusive license to perform on lands owned by the
City any off-site work required by such permit. Buyer shall comply with all requirements of
such permit and shall provide the Seller with "as-builts" needed to comply with the permit
requirements. Buyer may, at its option, elect to submit a proposed form of such assignment and
license agreement to Seller for review at least twenty (20) days prior to the expiration of the
Feasibility Period in which case the Seller shall provide Buyer with its comments on such form
of assignment and license agreement at least five (5) days prior to the expiration of the
Feasibility Period. Seller agrees that Seller is and shall remain responsible for any mitigation
required under the St. Johns Permit, except that the Buyer shall be responsible for any gopher
tortoise mitigation within the Phase I Property and the Phase 2 Property. During the Feasibility
Period, Seller shall obtain final approval from the St. Johns River Water Management District for
all drainage improvements completed by Seller under the St. Johns Permit and shall provide
Buyer with "as-builts" of said improvements.
(H) The City shall issues building permits for model homes within Centex
Development Phase 1 a and Centex Development Phase 1 b in accordance with the policies of the
City established with respect to the issuance of model home building permits.
l2. EXCESS FILL. To the extent available and subject to the provisions of Section
5 of the Second Amendment to the Interlocal Agreement, the Buyer may utilize any excess fill
located on the elementary school site at no additional cost to Buyer. Seller does not warrant or
represent that excess fill will be available.
13. COMMUNITY PARK.
(A) Subject to the terms and conditions set forth below, the Seller agrees to
design, permit and develop, at the Seller's expense, a public community park (the "Park") within
Tracts 3 and 3B of the Amended PUD Land Use Plan (the "Park Improvements). Seller and
Buyer agree to work together on a cooperative basis with respect the design of the improvements
to be developed within the Park. The Park shall be designed so as to integrate with the
surrounding development and shall comply with all requirements of the PUD Documents and the
PUD Development Standards. The design of the Park will provide the Seller with flexibility as
to the phasing of development of improvements contemplated by the design and may include
park concepts which are aspirational, but may not be ultimately constructed. To the extent
practical, the design of the Park will leave gopher tortoise areas in their undisturbed and natural
18
ORLA_ 407262.6
condition. The design of the Park will identify certain Park Improvements to be developed by
the Seller as part of the first phase of the Park Improvements (the "Phase I Park
Improvements"). For example, the Phase 1 Park Improvements may be limited to grading,
sodding, landscaping and irrigation of the Park; provided, however, that irrigation shall only be
required to the extent needed to support the maintenance of the landscaping. The design of the
Park will also identify certain Park Improvements proposed to be constructed in future phases
(the "Future Park Improvements"). Seller shall have the final decision as to the whether or not to
accept or reject any proposed Park Improvements and as to the phasing of development of any
such Park Improvements.
(B) Unless otherwise agreed to by Buyer, the Seller agrees to complete the
design of the Phase 1 Park Improvements and/or the Park Improvements within two (2) years
from the Phase 2 Closing Date. Further, unless otherwise agreed to by Buyer, the Seller agrees
to permit and develop the Phase 1 Park Improvements within three (3) years from the Phase 2
Closing Date; provided, however, that if Buyer fails to close on both the Phase 1 Property and
the Phase 2 Property, then the Seller will be relieved of the foregoing obligation to design, permit
and develop the Park, but may, at its sole option, elect to do so. Nothing contained herein shall
be construed as in any way obligating the Seller or others to permit and develop the Future Park
Improvements now or at any time in the future.
(C) The parties hereto recognize that certain design benefits and economies
may be achieved if the Buyer designs the Park Improvements. To this end, the Buyer shall,
within ninety (90) days following the expiration of the Feasibility Period, submit to the Seller a
proposal for the design of the Phase I Park Improvements and the Park Improvements
(collectively, the "Centex Park Improvements Design Proposal"). Prior to submitting such
proposal, the Seller and Buyer will engage in discussions regarding the scope of any such
improvements and the anticipated budget with respect thereto. The Seller will evaluate the
Centex Park Improvements Design Proposal and advise Buyer within sixty (60) days of receipt
thereof whether it desires to accept the proposal for the Phase I Park Improvements and/or the
Park Improvements. During such review period, the Seller may negotiate with Buyer as to the
final terms and scope of the Centex Park Improvements Design Proposal. In the event the Seller,
in its sole discretion, elects to accept either the proposal for the Phase I Park Improvements or
the Park Improvements, then the Buyer shall enter into one or more contracts for the design of
the Phase I Park Improvements or the Park Improvem~nts, as applicable, consistent with the
proposal accepted by the Seller and in accordance with the procedures set forth below. Any
design of the Park Improvements shall be subject to the criteria set forth in Paragraph (A) above
and shall provide for the phasing of such improvements. Notwithstanding any provision
contained herein to the contrary, it is agreed that the Seller shall have the final decision as to the
whether or not to accept or reject any proposed Park designs and that the Seller may set forth
certain parameters to be included and/or addressed in any such design; provided, however, that
the foregoing shall not be construed to allow Seller to require a design of the Phase 1 Park
Improvements that does not include grading, sodding, landscaping and irrigation of the Park, it
being the intent of the parties that the Phase 1 Park Improvements include grading, sodding,
landscaping and irrigation (as needed) of the Park.
(D) If the Seller has elected to have Buyer design the Park Improvements or
has had the design of the Park Improvements done by others, then, in connection with the
Buyer's development of the Subdivision infrastructure, the Buyer shall submit to the Seller a
19
ORLA_ 407262.6
proposal for the permitting and development of the Phase 1 Park Improvements in accordance
with the approved design for the Park Improvements (the "Centex Park Improvements
Development Proposal"). The Seller will evaluate the Centex Park Improvements Development
Proposal and advise Buyer within sixty (60) days of receipt thereof whether it desires to accept
such proposal. During such review period, the Seller may negotiate with Buyer as to the final
terms of the Centex Park Improvements Development Proposal. In the event the Seller, in its
sole discretion, elects to accept such proposal, then the Buyer shall enter into a contract for the
permitting and development of the Phase 1 Park Improvements consistent with the proposal
accepted by the Seller and in accordance with the procedures set forth below. Seller, at its sole
option, may also request that Buyer include all or a portion of the Future Park Improvements
within the Centex Park Improvements Development Proposal.
(E) Any such contracts referenced in Paragraphs (C) and (D) above shall be
conditioned upon the Seller agreeing to the final terms and conditions thereof, including the
payments to be made thereunder. The Buyer shall use its best efforts to enter into any such
contracts on the best price and terms available and shall assure that the costs associated with the
design of the Park Improvements and the permitting and development of the Phase 1 Park
Improvements, as the case may be, are accurately and fairly segregated from the costs incurred
by Buyer in connection with the development of the Subdivision. If the proposed cost under any
proposed contract is not acceptable to the Seller, then the Seller shall notify Buyer of such
circumstance whereupon the Buyer shall thereafter be relieved of its obligations to proceed
further unless the Seller and Buyer mutually agree upon a maximum dollar amount to be
reimbursed by the Seller to Buyer with respect to the work to be performed under any such
contract. If the Seller approves any such contracts for the design of the Park Improvements
and/or the permitting and development of the Phase 1 Park Improvements, as the case may be,
then the Seller shall be responsible for all costs thereunder unless otherwise agreed between
Seller and Buyer. Prior to Buyer proceeding with any work with respect to the Park
Improvements, the Seller and Buyer shall enter into a definitive agreement documenting the
work to be performed and their respective obligations. Any such agreement shall provide that
final payment under any such contract shall be condition upon (i) completion of the requirements
of such contract, (ii) submission to the City of proof of payment by the Buyer under the contract
and appropriate lien releases, (iii) acceptance of such work by the City, and (iv) conveyance of
such work product or improvements to the City by Bill of Sale or other appropriate
documentation. Any payments to be made by Seller pursuant to contracts entered into as set
forth above, shall be made in accordance with a schedule to be mutually agreed upon by the
parties, provided that such payments shall be no more frequent than monthly.
(F) Nothing contained herein shall be construed to release Buyer of its
obligation to construct, at its sole cost and expense, the community meeting room as a public
facility in accordance with the requirements of the RFP, the Buyer's RFP Response and this
Agreement. The design and location of the community meeting room shall be set forth in the
Final Subdivision Plan. However, the proposed community meeting room shall be incorporated
into the design of the Phase 1 Park Improvements. Further, Seller, at its option, may require that
Buyer upgrade and expand the community meeting with the Seller being responsible for any
additional costs incurred in connection therewith. Any decision regarding such upgrading or
expansion shall be made by Seller prior to approval of the Final Subdivision Plan unless
otherwise agreed to by the parties. Notwithstanding any provision contained herein to the
20
ORLA_ 407262.6
contrary, the City agrees that the community meeting room may be constructed as part of the
Centex Development Phase 1 b.
(G) The Seller acknowledges that the 10' wide asphalt bikeway, the boardwalk
and gazebo and the community meeting room satisfy the requirements for private recreational
amenities required by Section 6-9.c ofthe City's Land Development Code.
(H) The Seller will be responsible for any payments required pursuant to an
Incidental Take Permit with respect to gopher tortoises which may be located within the Park.
14. CLOSING.
(A) Subject to the provisions and conditions herein contained, this transaction
shall be closed and the deed and other closing papen: delivered with respect to the Phase 1
Property (the "Phase 1 Closing") at 10:00 a.m. on the later of (i) two hundred ninety (290) days
after the expiration of the Feasibility Period, or (ii) forty-five (45) days after the approval by the
Ocoee City Commission of the Final Subdivision Plan without an appeal having been filed by a
third party challenging the approval of the Final Subdivision Plan; provided, however, that if a
third party appeal is filed, then such closing date would be extended to forty-five (45) days after
the Ocoee City Commission approval of the Final Subdivision Plan becomes final and no further
appeals are allowed (the "Phase 1 Closing Date").
(B) Notwithstanding any provision contained herein the contrary, in the event
the Phase 1 Closing Date has not occurred by September 30, 2008, then in such event either
party may at anytime thereafter elect to terminate this Agreement by written notice to the other
party and in such event the Deposit will be retained by Sdler in consideration for having kept the
Property off the market and the parties hereto shall be relieved of all rights and obligations
hereunder except for those rights and obligations which expressly survive the termination of this
Agreement.
(C) Subject to the provisions and conditions herein contained, this transaction
shall be closed and the deed and other closing papers delivered with respect to the Phase 2
Property (the "Phase 2 Closing") at 10:00 a.m. on the date which is one (1) year from the date of
the Phase 1 Closing. Notwithstanding any provision contained herein the contrary, in the event
the Phase 2 Closing Date has not occurred by the date which is two (2) years from the date of the
Phase 1 Closing, then in such event either party may at anytime thereafter elect to terminate this
Agreement by written notice to the other party and in SUGh event the Deposit will be retained by
Seller in consideration for having kept the Property off the market and the parties hereto shall be
relieved of all rights and obligations hereunder except for those rights and obligations which
expressly survive the termination of this Agreement; provided, however, that the foregoing shall
not affect any of Buyer's obligations hereunder which survive the Phase 1 Closing.
(D) The Phase 1 Closing and the Phase 2 Closing (collectively, the "Closing")
shall take place at the offices of Foley & Lardner, LLP, 111 North Orange Avenue, Suite 1800,
Orlando, Florida 3280 l, unless otherwise agreed to by Seller and Buyer; provided, however, that
each Closing may, at the option of either party, be a "mail away closing".
2l
ORLA_ 407262.6
(E) Unless otherwise provided, all closing documents shall be prepared by
Seller's attorney. The parties hereto agree to proceed in good faith to finalize and agree upon all
closing documents at least ten (10) days prior to each Closing.
15. CONVEYANCE: DEVELOPMENT RESTRICTIONS.
(A) The Seller shall convey marketable fee simple title to the Phase 1 Property
and the Phase 2 Property, as the case may be, to the Buyer at each Closing by Special Warranty
Deed free and clear of all liens and encumbrances except for those matters set forth in Schedule
B-2 of the Title Commitment (other than the standard exceptions), any other title exceptions or
conditions of title accepted by Buyer in accordance with the terms hereof, matters which would
be revealed by an accurate survey of the Property and other matters expressly set forth in this
Agreement. The instrument of conveyance shall transfer all of the Seller's interest in and to all
easements, tenements, hereditaments and appurtenances belonging or in anywise appertaining to
the portion of the Property being conveyed, including without limitation of the foregoing, all
right, title and interest of the Seller in and to 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 such portion of the Property
to the center line thereof.
(B) The deed for the Phase 1 Property shall be subject to the Phase 1 Deed
Restrictions set forth in Exhibit "F" attached hereto and by this reference made a part hereof.
(C) The deed will convey title to the Phase 1 Property or the Phase 2 Property,
as the case may be, subject to the following restrictions in favor of Seller: (a) Rezoning is
prohibited without Seller's consent; (b) The Property may only be developed for single family
residential purposes; and (c) The Seller may amend the Amended PUD Land Use Plan and
conditions of approval set forth in the PSP/FSP without the consent or approval of the Buyer so
long as such amendments do not change the Amended PUD Land Use Plan and conditions of
approval set forth in the PSP/FSP as they relate to the Property or the Park. The foregoing
restrictions will run with the land and be enforceable by Seller.
16. EXPENSES, ASSESSMENTS AND PRORATIONS. The expenses and
prorations set forth below shall apply at Closing:
(A) Buyer shall pay for documentary stamps required to be affixed to the deed
and for the cost of recording the deed. The Seller shall pay the cost of recording any corrective
instruments.
(B) Real property taxes for the year of each closing and subsequent years shall
be paid by the Buyer. Real property taxes for years prior to 2006, if any, shall be paid by Seller.
It is expressly agreed that real property taxes, if any, for the year of each Closing will not be
prorated.
(C) The Property is currently exempt from ad valorem taxes. In the event the
Property, or any portion thereof, becomes subject to ad valorem taxes after the Effective Date,
then at each Closing the Buyer shall reimburse Seller for any such ad valorem taxes paid by
Seller with respect to the portion of the Property being conveyed.
22
ORLA_ 407262.6
l7. DOCUMENTS TO BE DELIVERED AT CLOSING.
(A) In addition to the other documents required to be executed by Seller at
each Closing, the Seller shall execute and acknowledge:, where necessary, and deliver to Buyer
the following documents at each Closing hereunder with respect to the portion of the Property
being conveyed:
(1) A Special Warranty Deed.
(2) A No-Lien Affidavit.
(3) An Affidavit stating that Sell,~r is not a "foreign person" pursuant to
Section 1445(b)(2) of the Internal Revenue Code.
(4) Stormwater Drainage Easement Agreement between Buyer, Seller and
School Board as provided in Section 4 of the Second Amendment to the Interlocal
Agreement. [Applies to Phase 1 Closing only.]
(5) A license agreement(s) to make improvements to the Phase 2 Property,
Park, Park Road and other lands owned by Seller as contemplated by this
Agreement. [Applies to Phase 1 Closing only.]
(6) A license agreement to make improvements to the Park, Park Road
and other lands owned by Seller as contemplated by this Agreement. [Applies to
Phase 2 Closing only.]
(7) Except as otherwise provided herein, an assignment and assumption of
all licenses, permits, approvals and development rights applicable to the portion
of the Property being closed.
(8) A Closing Statement.
(B) In addition to other documents required to be executed by Buyer at each
Closing, the Buyer shall execute and acknowledge, where necessary, and deliver to Seller (and, if
applicable, the School Board) the following documents at hereunder:
(1) Stormwater Drainage Easement Agreement between Buyer, Seller and
School Board as provided in Section 4 of the Second Amendment to the Interlocal
Agreement. [Applies to Phase 1 Closing only.]
(2) A license agreement(s) to make improvements to the Phase 2 Property,
Park, Park Road and other lands owned by Seller as contemplated by this
Agreement. [Applies to Phase 1 Closing only.]
(3) A license agreement to make improvements to the Park, Park Road
and other lands owned by Seller as contemplated by this Agreement. [Applies to
Phase 2 Closing only.]
23
ORLA_ 407262.6
(4) An assignment and assumption of all licenses, permits, approvals and
development rights applicable to the portion of the Property being closed.
(5) A Closing Statement.
18. REPRESENTATIONS.
(A) Mutual Representations. To induce each other to enter into this
Agreement, each party hereby represents and warrants to the other that (i) it has been duly
authorized and empowered to enter into this Agreement and to perform fully its obligations
hereunder, (ii) such obligations constitute the valid and binding obligations of such party,
enforceable in accordance with their terms, and (iii) that no further consents of any other person,
entity, public body or court are required in connection with this Agreement and the performance
of all obligations hereunder.
(B) Seller's Representations. Seller hereby represents to Buyer that, to the
best of Seller's knowledge and belief, the following statements are true and correct and will be
true and correct on the each Closing Date with respect to the portion of the Property being
conveyed:
(i) The Seller's execution, delivery and/or performance of this
Agreement is not prohibited by and will not cause a default under any other
agreement, covenant, document or instrument.
(ii) There are no parties in possession of all or any portion of the
Property, as the case may be, as lessees, tenants at sufferance, licensees or
trespassers; or if there are parties in possession, said parties will vacate the
Property at or prior to the applicable Closing.
(iii) There is no pending litigation affecting the Property or any part
thereof, nor has Seller received any written notice that any such litigation is
contemplated.
(iv) All work, labor, services and materials furnished prior to the
applicable Closing to or in connection with the Property not done at Buyer's
request and any improvements constructed thereon prior to the applicable Closing
will be discharged by Seller at or prior to the applicable Closing, so that no
mechanics, materialmen or other lien may constitute a claim against the Property
or such improvements; provided, however, that the foregoing shall not be
construed to require that Seller pay for any work, labor, services and materials
which are required to be paid for by Buyer under the terms of this Agreement,
including but not limited to any improvements made to the Phase 2 Property or
the Park pursuant to a license agreement.
(v) There is not now, any action, suit or proceeding pending, or
threatened against or affecting the Property or any portion thereof, or relating to
or arising out of the ownership of the Property, in any court or before any federal,
state, county or municipal department, commission, board, bureau or agency or
other governmental instrumentality.
24
ORLA_ 407262.6
ORLA_ 407262.6
(vi) Except for those matters set forth in this Agreement, Seller has not
granted any license, lease or other right relating to the use or possession of the
Property.
(vii) To the best of Seller's knowledge, there are no assessment liens
pending or proposed, certified, confirmed, ratified, special or otherwise affecting
the Property.
(viii) The Property is designated as Low Density Residential under the
City's Comprehensive Plan which allows up to 4.0 dwelling units per gross acre.
The Amended Land Use Plan allows for the Property to be developed with up to
4.5 dwelling units per net acre. The actual number of Lots to be permitted for
development will depend upon net acreage and the final design for development
of the Property as proposed by Buyer.
(ix) No school capacity enhancement agreements or other agreements
to address school capacity are required by the City or School Board based on
development of the Property in accordance with the Amended PUD Land Use
Plan; provided, however, that the Buyer shall be required to pay school impact
fees applicable to other residential projects. in the City.
(x) Sewer and water lines to se:rve the Property have been extended to
the end of the existing pavement on Ocoee Crown Point Parkway in accordance
with the Orange County Master Utility Plan. Reuse lines to serve the Property
have been extended to the end of the existing pavement on Ocoee Crown Point
Parkway.
(xi) The Seller has obtaim:d a final wetlands jurisdictional
detennination from appropriate Authorities. The wetlands will be made subject to
a conservation easement and title thereto will remain with the Seller.
(xii) Any public recreational facilities constructed by Buyer within the
Park shall count towards satisfying the recreational requirements for the Property
under the City's Land Development Code.
(xiii) Except as set forth in this Agreement and Section IV of the RFP,
the City has constructed all off-site roadway improvements required by the City
for the development of the Property.
(xiv) The Seller has completed all necessary traffic studies required by
the City for development of the Property. No further traffic studies will be
required by the City based on development in accordance with the approved
PUD/PSP.
(xv) The City has issued a Final Certificate of Concurrency for the
Crown Point PUD, including the Property, and such Final Certificate of
Concurrency is in good standing and full force and effect. Based on the Final
Certificate of Concurrency, the Property meets all concurrency requirements
established by the City.
25
(xvi) The City is not in violation of any permits issued to the City with
respect to the Property by the St. Johns River Water Management District or the
US Army Corps of Engineers.
(xvii) The Seller has completed construction of the stormwater
improvements for the Phase I development of the PUD as set forth in the RFP.
(C) Buyer's Representations. Buyer hereby represents to Seller, that to the
best of Buyer's knowledge and belief, the following statements are true and correct and will be
true and correct on the each Closing Date with respect to the portion of the Property being
conveyed:
(i) No one was paid a fee, commission, gift or other consideration by
Buyer contingent upon receipt of an award to Buyer pursuant to the RFP.
(D) Notice of Changes in Representations. In the event Seller or Buyer
become aware prior to each Closing that any of the representations set forth above are not true
and correct, then they shall given the other party written notice thereof.
19. RISK OF LOSS. Seller assumes all risks and liability for damage to or injury
occurring to the Property by fire, storm, accident, disease, or any other casualty or cause until
each Closing has been consummated (a "Casualty"). In the event of a Casualty, it is agreed that
Seller shall have no duty to repair any such damage or injury to the Property. If a Casualty
occurs prior to the applicable Closing and the damage or injury associated with such Casualty
does not materially affect ability of the Buyer to proceed with the development of the
Subdivision or materially impede access to the Property and the construction of Homes on the
Property, then in such event the Buyer shall consummate the applicable Closing and accept the
Phase 1 Property or the Phase 2 Property, as the case may be, in its then existing condition
without any set-off or reduction in the Total Purchase Price. In the event of a Casualty prior to
any Closing and the damage or injury associated with such Casualty does materially affect ability
of the Buyer to proceed with the development of the Subdivision and the construction of Homes
on the Property, then in such event the Buyer shall elect to either (i) terminate this Agreement, or
(ii) consummate the applicable Closing and accept the Phase 1 Property or the Phase 2 Property,
as the case may be, in its then existing condition without any set-off or reduction in the Total
Purchase Price. In the event Buyer shall elect to terminate due to a Casualty, then Seller shall
promptly return to Buyer the Deposit paid by Buyer to Seller and the parties hereto shall
thereafter be relieved of all rights and obligations hereunder, except for those rights and
obligations which expressly survive the tennination of this Agreement.
20. CONNECTION FEES~ IMPACT FEES. Buyer shall be solely responsible for
all tap-in charges, connection fees, service charges, road/transportation impact fees, recreational
park impact fees, police impact fees, fire impact fees, school impact fees, contributions in aid of
construction for sewer, water, gas, electric (including underground electric service connection
charges), and telephone service insofar as the aforesaid relate to the Property and the
development thereof. Buyer shall also be solely responsible for all other impact fees and
contributions in aid of construction insofar as the aforesaid relate to any future development of
the Property. The provisions of this paragraph shall survive the Closings.
26
ORLA_ 407262.6
21. COMPLIANCE WITH GOVERNMENTAL REGULATIONS. Buyer and
Seller, with regard to all their respective activities relating to the Property, agree to use their best
efforts to comply with all applicable, local, regional, state and federal laws, statutes, ordinances,
rules and regulations which may affect such activities.
22. CONDITION OF REAL EST A TE. Buyer acknowledges that the Due
Diligence Materials have been provided by the Seller without any warranty or guarantee and that
Seller has not warranted or guaranteed the accuracy of any information contained in the RFP
Packet. Buyer acknowledges that it has undertaken such investigations, inspections and inquiries
has it has deemed necessary or appropriate to verify the information contained in the Due
Diligence Materials and the RFP Packet and has been provided with additional opportunities to
investigate the Property during the Feasibility Period. BUYER ACKNOWLEDGES AND
AGREES THAT UPON EACH CLOSING, SELLER SHALL SELL AND CONVEY TO
BUYER AND BUYER SHALL ACCEPT THE APPLICABLE PORTION OF THE
PROPERTY, "AS IS, WHERE IS", AND THERE ARE NO ORAL AGREEMENTS,
WARRANTIES OR REPRESENT A TIONS COLLATERAL TO OR AFFECTING THE
PROPERTY BY SELLER OR ANY THIRD PARTY OTHER THAN THE WARRANTIES OF
TITLE SET FORTH IN THE SPECIAL WARRANTY DEED. THE TERMS AND
CONDITIONS OF THIS PARAGRAPH SHALL EXPRESSLY SURVIVE EACH CLOSING
AND NOT MERGE THEREIN.
23. CONVEYANCE OF ADDITIONAL LANDS. The Seller reserves the right, at
its sole option, to negotiate the sale of additional lands within the Ocoee Crown Point PUD to the
Buyer without seeking further competitive proposals; provided, however, that nothing contained
herein shall be construed to require Seller to negotiate the sale of such additional lands to Buyer
or created an expectancy by Buyer with respect to the future purchase of such additional lands,
and such negotiations may occur subsequent to the Closings on the sale of the Property. The
provisions of this paragraph shall survive the Closings.
24. DEFAULT AND REMEDIES.
(A) In the event of a default by Buyer then, unless otherwise provided in this
Agreement, Seller shall be entitled to retain the Deposit as full liquidated damages for such
default of Buyer, the parties hereto acknowledging that it is impossible more precisely to
estimate the damages to be suffered by Seller upon BUyt:r's default as aforesaid, and the parties
expressly acknowledging that retention of the Deposit is intended not as a penalty, but as fully
liquidated damages with respect to the Property. Seller's right to retain the Deposit as full
liquidated damages with respect to the Property is Seller's sole and exclusive remedy in the
event of such a default hereunder by Buyer, and, in consideration of its retention of the Deposit,
Seller hereby waives and releases any right to (and hereby covenants that it shall not) sue Buyer:
(i) for specific performance of this Agreement, or (ii) to prove that Seller's actual damages
exceed the Deposit which are hereby provided to Seller as full liquidated damages. In the event
the purchase and sale contemplated in this Agreement is not consummated because of Buyer's
default, Buyer hereby waives and releases any right to (and hereby covenants that it shall not)
sue Seller to recover the Deposit on the grounds that the Deposit is unreasonable in amount or
that retention of the Deposit by Seller is a penalty and not agreed upon and reasonable liquidated
damages. It shall be an event of default hereunder if Buyer is either adjudicated bankrupt under
state or Federal laws, or voluntarily declares bankruptcy.
27
ORLA_ 407262.6
(B) If the sale contemplated by this Agreement is not consummated through
default of Seller, then the Buyer shall elect as Buyer's sole remedy, either: (1) to terminate this
Agreement and demand and promptly receive from the Seller a refund of the Deposit paid by
Buyer to Seller and upon the refund of such monies, the parties shall have no further rights or
obligations hereunder, except for those rights and obligations which expressly survive the
termination of this Agreement, or (2) seek specific performance of this Agreement; provided,
however, that unless Buyer files with the clerk of a court of appropriate jurisdiction of Orange
County, Florida, the legal process necessary to seek and obtain specific performance of this
Agreement within thirty (30) days from the date of such default, then Buyer shall be deemed to
have forever waived its right to seek and obtain specific performance of this Agreement. IT IS
SPECIFICALLY AGREED BETWEEN THE PARTIES THAT BUYER SHALL HAVE
NO CLAIMS AGAINST SELLER FOR DAMAGES IN THE EVENT OF A DEFAULT
BY SELLER OR A BREACH BY SELLER OF ANY PROVISION OF THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO THOSE OBLIGATIONS,
RESPONSIBILITIES, LIABILITIES AND REPRESENT A TIONS OF SELLER, IF ANY,
UNDER THE TERMS OF THIS AGREEMENT WHICH SURVIVE THE CLOSINGS.
(C) Notwithstanding any provision contained herein to the contrary, neither
party shall be entitled to declare the other party in default hereunder unless the party seeking to
declare a default first gives the other party written notice thereof specifying the alleged default
and the corrective action required and such party receiving the notice fails to cure such default
with ten (l 0) days from the date of such notice; provided, however, that no notice of default shall
be required in connection with the following: (i) failure of Buyer to timely deliver any Deposit
due hereunder, or (ii) failure of Buyer to close and deliver the Phase 1 Purchase Price on the
Phase 1 Closing Date and the Phase 2 Purchase Price on the Phase 2 Closing Date, as the case
may be.
(D) Notwithstanding any prOVIsIOn contained in this Agreement to the
contrary, to the extent that the Phase 1 Closing has occurred, (i) all references herein and
elsewhere in this Agreement to the Deposit shall refer to the remaining portion of the Deposit
which was not applied to the Phase 1 Purchase Price, and (ii) all references herein and elsewhere
in this Agreement to the Buyer being relieved of any further obligations under this Agreement
upon termination of this Agreement shall not be construed to relieve Buyer of its obligations
under this Agreement which survive the Phase 1 Closing.
25. BROKER'S COMMISSION. Seller and Buyer each represents and warrants to
the other that they have not used the services of any real estate agent, broker or finder with
respect to the transactions contemplated hereby. Seller, to the extent permitted by law, and
Buyer agree to indemnifY, defend and hold the other harmless from and against all claims,
liabilities and expenses, including attorneys' fees, paralegal fees and costs incurred, at both the
trial and appellate levels, in connection with any claims for commission, compensation, finder's
fees or otherwise, for the bringing about of this transaction, or the consummation hereof, which
may be made against the other by any other person, firm or corporation as the result of any acts
of Seller or Seller's representatives or as the result of any acts of Buyer or Buyer's
representatives, as the case may be. This indemnification shall survive the delivery of the deed
and shall not merge therein.
28
ORLA_ 407262.6
26. NOTICES. All notices, consents, approvals, waivers and elections which any
party shall be requested or shall desire to make or give under this Agreement shall be in writing
and shall be given (i) by next day delivery service (such as Federal Express or UPS), (ii) by hand
delivery, or (iii) by facsimile transmission. Notices, including notice of a change of address or
FAX number, shall be addressed or transmitted to the addresses set forth below, or that a party
may otherwise designate in the manner prescribed herein:
AS TO SELLER:
City ofOcoee
Attention: City Manager
150 N. Lakeshore Drive
Ocoee, Florida 3476l
FAX: 407-656-6885
With a copy to:
Paul E. Rosenthal, Esq.
Foley & Lardner LLP
III North Orange Ave., Suite 1800
Orlando, Florida 32801
FAX: 407-648-l743
AND
Russell B. \Vaguer
Director of Community Development
City of Ocoee
l50 N. Lakeshore Drive
Ocoee, Flor:lda 3476l
FAX: 407-905-3158
29
ORLA_ 407262.6
AS TO BUYER:
Patrick J. Knight
Division President
Centex Homes
2301 Lucien Way, Suite 400
Maitland, Florida 32751
FAX: 407- 475-0361
With a copy to:
Karen Ward Procell, Esq.
Division General Counsel
Centex Homes
1064 Greenwood Blvd., Suite 124
Lake Mary, Florida 32746
FAX: 407-585-7502
Notices, consents, approvals, waivers and elections shall be deemed given when received by the
party for whom intended at such party's address first herein specified, or such address as such
party may have substituted therefore by notice to the other.
27. FURTHER DOCUMENTATION. The parties agree that at any time following
a request therefor by the other party, each shall execute and deliver to the other party such further
documents and instruments, in fonn and substance reasonably necessary to confinn and/or
effectuate the obligations of either party hereunder and the consummation of the transaction
contemplated hereby.
28. TIME IS OF THE ESSENCE. Time is of the essence with respect to all
matters set forth in this Agreement. Time periods herein of less than seven (7) days shall in
the computation thereof exclude Saturdays, Sundays and legal holidays and any time period
provided for herein which shall end on a Saturday, Sunday or legal holiday shall extend to 5 :00
p.m. of the next business day. All time references contained herein shall refer to the local time in
effect in Orange County, Florida.
29. ASSIGNMENT. Buyer may not assign this Agreement except to an entity at
least 50% owned or controlled by Buyer; provided, however, that any such assignment shall
require the approval of the Seller and cannot change the Project Team set forth in the Buyer's
RFP Response unless agreed to by the Seller. In the event Buyer desires to assign this
Agreement as aforesaid, notice thereof shall be given to Seller at least ten (10) days prior to the
applicable Closing Date and the Buyer and the assignee shall execute an assignment and
assumption of contract in a fonn acceptable to Seller.
30. PROCEEDS OF SALE AND CLOSING PROCEDURE. The attorney, title
agent or closing agent issuing title insurance to Buyer with respect to the Property shall insure
against adverse title matters pursuant to Section 627.7841, Florida Statutes, (i.e., the "gap" will
be insured). Buyer agrees that the proceeds payable to Seller will be disbursed to Seller at each
Closing if gap coverage is provided.
30
ORLA_ 407262.6
31. ATTORNEYS' FEES.
(A) In the event that either party finds it necessary to commence an action
against the other party to enforce any provision of this Agreement, or because of a breach by the
other party of any of the terms hereof, the prevailing party shall be entitled to recover from the
other party its reasonable attorneys' fees, paralegal fees, and costs incurred in connection
therewith, at both trial and appellate levels, including bankruptcy proceedings and the right to
such reasonable attorneys' fees, paralegal fees, and costs shall be deemed to have accrued from
the commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment.
(B) Each party shall bear its O\vn legal expenses in connection with the
negotiation of this Agreement and the closing pursuant to this Agreement.
32. NO AGENCY.
(A) The Seller is not, and shall not be for any purpose, the agent of the Buyer,
and shall have no power or authority to bind the Buyer in any manner whatsoever.
(B) The Buyer is not, and shall not be for any purpose, the agent of the Seller
(except as expressly set forth herein with respect to certain applications to Authorities), and shall
have no power or authority to bind the Seller in any manner whatsoever.
33. ENTIRE AGREEMENT. This Agreement (including the documents
incorporated herein by reference) embodies and constitutes the entire understandings of the
parties with respect to the transactions contemplated herein, and all prior or contemporaneous
agreements, understandings, representations, and statements, oral or written, are merged into this
Agreement. Neither this Agreement nor any provisions hereof may be waived, modified,
amended, discharged, or terminated except by an instrument in writing signed by the party
against whom the enforcement of such waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in such instrument.
34. SURVIVING CLAUSES. The provisions of this Agreement set forth in
Paragraphs 10 thru 13, inclusive, 20 thru 29, inclusive, and 31 thru 40, inclusive, of this
Agreemen! shall survive the Closings pursuant to this Agreement. The Buyer's indemnification
with respect to its entering upon the Property prior to eac.h Closing and agreement to restore the
Property to its original condition as set forth in Paragraph 8 hereof, and the provisions of the
paragraphs hereof entitled Default and Remedies and Attorneys' Fees, respectively, shall survive
any termination of this Agreement by either party as a matter of right hereunder or in breach of
this Agreement. Except as set forth in the preceding sentence or as otherwise expressly set forth
herein, no other provision of this Agreement shall survive the Closings of this transaction or any
termination hereofby either party as a matter ofright.
35. AGREEMENT NOT TO BE RECORDED. Neither this Agreement nor any
notice of it shall be placed of record in the Public Records in Orange County, Florida, or in any
other jurisdiction. Should this Agreement or any notice of it be placed of record in violation of
this provision, then this Agreement may, at the option of the non-defaulting party, be declared
null, void and of no legal effect.
3l
ORLA_ 407262.6
36. INTERPRETATION AND CONSTRUCTION. IT IS STIPULATED AND
AGREED BETWEEN THE PARTIES THAT THIS AGREEMENT SHALL BE
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LA WS OF THE
STATE OF FLORIDA AND ANY TRIAL OR OTHER PROCEEDING WITH RESPECT TO
THIS AGREEMENT SHALL TAKE PLACE IN THE ST ATE OF FLORIDA. In this
Agreement, single number includes the plural, and the words "person" and "party" include
corporation, partnership, trustee, joint venture, firm, association, public body or quasi-public
body wherever the context so requires. When this Agreement contemplates that one party or the
other must perform some task or provide some information, the parties acknowledge that such
task to be performed or information to be provided may and/or will be performed or provided by
agents, employees and/or consultants of such party. Captions of the paragraphs and
subparagraphs of this Agreement are for convenience and reference only, and the words
contained therein shall in no way be held to explain, modify, amplify, limit the scope or content
of or aid in the interpretation, construction or meaning of the provisions of this Agreement.
37. CONSTRUCTION OF AGREEMENT. This Agreement shall not be construed
more strictly against one party than against the other merely by virtue of the fact that it may have
been prepared by counsel for one of the parties, it being recognized that both the Seller and the
Buyer have contributed substantially and materially to the preparation hereof.
38. MISCELLANEOUS.
(A) If all or any portion of the provisions of this Agreement shall be declared
invalid by laws applicable thereto and if the intent of this Agreement is not thereby precluded,
then such invalid portion shall be ineffective and unenforceable without invalidating the
remaining provisions hereof.
(B) This Agreement shall bind and inure to the benefit and burden of the
parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
(C) Each writing or document referred to herein as being attached hereto as an
exhibit or otherwise designated herein as an exhibit is incorporated herein by reference and made
a part hereof. The following exhibits are attached hereto:
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "E"
Exhibit "F"
Exhibit "G"
Exhibit "H"
The Property
PUD Documents
Due Diligence Materials
Amended PUD Land Use Plan
Development Requirements
Phase 1 Deed Reservations
Centex Conceptual Plan
Centex Product Home Construction Plans
39. COUNTERPARTS~ FACSIMILE COPIES. This Agreement and any
amendments hereto may be executed in any number of counterparts, each of which shall be
deemed to be an original instrument, but all such counterparts together shall constitute one and
32
ORLA_ 407262.6
the same instrument. Facsimile copies of this Agreement and any amendments hereto and any
signatures thereon shall be considered for all purposes as originals, provided that each of the
parties hereto delivers an executed counterpart original of this Agreement and any amendments
hereto to the other party by overnight courier within two (2) business days after this Agreement
and any amendments hereto may be executed in any number of counterparts, each of which shall
be deemed to be an original instrument, but all such counterparts together shall constitute one
and the same instrument.
40. RADON GAS. Pursuant to the provisIOns of Section 404.056(8), Florida
Statutes, Seller hereby notifies Buyer as follows with respect to the Property: "Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county public health
unit. "
41. APPROVAL AT PUBLIC HEARING. Pursuant to Section C-8(B)(I) of the
City Charter, this Agreement has been approved by the City Commission of the City following
the holding of an advertised public hearing.
{BALANCE OF PAGE IS INTENTIONALLY BLANK. SIGNATURE PAGE FOLLOWS]
33
ORLA_ 407262.6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names, by their proper elected officials, officers, representatives, partners or
agents thereunto duly authorized, as of the day and year first above written.
SELLER:
ATTEST:
CITY OF OCOEE, FLORIDA
By:
Beth Eikenberry, City Clerk
S. Scott Vandergrift, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this day of
February, 2007.
APPROVED BY THE OCOEE CITY
COMMISSION AT A PUBLIC HEARING
HELD ON February 20, 2007
UNDER AGENDA ITEM NO.
FOLEY & LARDNER LLP
By:
City Attorney
34
ORLA_ 407262.6
BUYER:
CENTEX HOMES, a Nevada general partnership
By: CENTEX REAL ESTATE
CORPORATION, a Nevada corporation,
Managing general partner
By:
Name:
Title:
Date:
35
ORLA_ 407262.6
EXHIBIT" A"
THE PROPERTY
The Property shall consist of the following Tracts as depicted on the Amended Land Use Plan:
Tracts 2, 2A, 25, 36, 37,50 and 52. The Property shall also include the upland portion of Tract
42, inclusive of the 25' upland buffer, and the portion of Tract 542 labeled as "Proposed
Attenuation/Mitigation Area" which is no longer needed by the Seller to address Wetland
impacts. The Property shall also include the portion of Tract 44, if any, which has not been
incorporated into the "as-built" ponds constructed by the Seller a.'ld allowing for the Seller to
maintain ownership for a distance of 15 feet from the toe of the slope of such ponds. The metes
and bounds legal description for the Property will be determined in accordance with the
provisions of Paragraph 7 hereof entitled Survey.
36
ORLA_ 407262.6
EXHIBIT "B"
PUD DOCUMENTS
1. Ordinance No. 2003-34 establishing the zoning for the Ocoee Crown Point PUD and
approving the PUD Land Use Plan.
2. Ordinance No. 2004-16 adding the "Poer Propel1:y" to the Ocoee Crown Point PUD and
amending PUD Land Use Plan.
3. Declaration of Conditions of Approval (Ocoee Crown Point PUD) dated September 16,
2003 and recorded September 30, 2003 in Official Records Book 7127, Page 4804, as
amended by First Amendment thereto recorded in Official Records Book 08215, Page
4805, and by Second Amendment thereto recorded in Official Records Book 08215, Page
4825, all of the Public Records of Orange County, Florida.
4. Ocoee Crown Point PUD Development Standards dated September 2002.
5. Plat of Ocoee Crown Point Phase I as recorded in Plat Book 63, Page 24, Public Records
of Orange County, Florida.
6. City of Ocoee Single Family Residential Impact Fee Schedule (as of November 1,2005).
7. Ocoee Crown Point PUD Land Use Plan/Preliminary Subdivision Plan as amended June
19,2004.
37
ORLA_ 407262.6
EXHIBIT "c'
DUE DILIGENCE MATERIALS
1. Environmental Assessment Reports prepared by Law Engineering and Environmental
Services, Inc., (for Ocoee Crown Point PUD excluding Poer Property) as follows:
(a) Report of Environmental Consulting Services - Fullers
Crossing Site dated June 5, 2000. (Phase 1 ESA)
(b) Report of Limited Site Assessment Report - Fullers
Crossing Maintenance and Refueling Facility Site dated November 10, 2000.
(c)
dated January 11, 2001.
Response to Comments: Former Irrigation Well Site
(d)
dated February 8, 2002.
Report of Supplemental Limited Soils Assessment
2. Phase II Environmental Site Report prepared by Professional Service Industries, Inc.
dated September 8, 2000.
3. The EDR Radius Map for Poer Property dated June 5, 2003 as prepared by
Environmental Data Resources, Inc. (Phase 1 ESA)
4. Preliminary Ecological Constraints Assessment for Coca-Cola Property dated July 27,
2000 as prepared by VHB.
5. Preliminary Ecological Constraints Assessment - Poer Property dated June 13, 2003 as
prepared by VHB.
6. Coca-Cola Property Preliminary Vegetation & Land Use Map, including gopher tortoise
burrow locations, dated September 27, 2001, as prepared by VHB.
7. Gopher Tortoise Relocation Permit No. WR03332, dated August 8, 2003 issued by State
of Florida Fish and Wildlife Conservation Commission.
8. Gopher Tortoise Relocation Permit Application for Crown Point Phase 1 dated June 27,
2004 as prepared by VHB.
9. Orange County Utility Master Plan: Master Utility Plan, Revision/Addendum #4, dated
January 20,2004 as prepared by VHB.
10. SJRWMD Conceptual Environmental Resource Permit Application and Stormwater
Management Computations dated April 30, 2002 as prepared by VHB.
11. Proposed Mitigation Plan for Crown Point PUD dated April 30, 2002 as prepared by
VHB.
38
ORLA_ 407262.6
12. SJRWMD Conceptual Environmental Resource Permit Application - Addendum No.1
dated September 20,2002 as prepared by VHB.
13. SJRWMD Conceptual Environmental Resource Permit Technical Staff Report, dated
January 29,2003 (Application #4-095-83494-l).
l4. SJRWMD Environmental Resource Permit Number 40-095-83494-5, dated March 4,
2005 for Crown Point PUD Phase lB.
15. The following reports as prepared by Nodarse & Associates, Inc.:
(a) Report of Preliminary Geotechnical Engineering Evaluation - Coke
Property, dated September ll, 2001.
(b) Report of Subsurface Exploration and Geotechnical Engineering
Evaluation - Coke Property, dated February 7,2003.
(c) Additional Geotechnical for Dry Pond - Ocoee/Crown Point PUD, dated
February 2, 2004.
(d) Report of Preliminary Subsurface Exploration and Geotechnical
Engineering Evaluation - Poer Property, dated April 1, 2004.
(e) Report of Subsurface Exploration and Geotechnical Engineering
Evaluation - Crown Point Ponds lA, lB, 3, 4, 5 and 10, dated June 27,2004.
(f) Additional Report of Subsurface Exploration and Geotechnical
Engineering Evaluation - Crown Point Ponds 3, 5 and 8, dated November 4,2004.
16. Statement on storm water measures needed to handle the elementary school site including
the Lake Apopka Rule effects: Letter from Paul Yeargain of VHB dated August 24,
2005.
17. Clarification on storm water treatment needed for park road construction from the
residential area up to Ocoee Crown Point Parkway: Letter from Paul Yeargain of VHB
dated August 24, 2005.
18. Legal description of lands to be made subject to a conservation easement and which are
not part of the Property.
19. ASTM Phase I Environmental Site Assessment: 29.25-Acre Poer Property prepared by
VHB, June 2003.
20. Poer Property Conceptual Stormwater Analysis, prepared by VHB, April 2004.
21. U.S. Army Corps of Engineering Permit No. 2002..03007 (OP-EB).
39
ORLA_ 407262.6
See Attachment hereto.
ORLA_ 407262.6
EXHIBIT "D"
AMENDED PUD LAND USE PLAN
40
EXHIBIT "E"
DEVELOPMENT REQUIREMENTS FOR PROPERTY AND FINAL SUBDIVISION
PLAN
1. The Buyer will design, permit and construct the 1 0' wide asphalt bikeway as
shown on the Centex Conceptual Plan. Subject to obtaining all approvals, Buyer, as part of the
Centex Development Phase 1 b, shall construct the boardwalk and gazebo leading out into Lake
Apopka. The asphalt bikeway will have a 1.5" thick surface and an 8" thick limerock base with
a stabilized sub-base. Areas disturbed by the construction of the foregoing will be seeded and
mulched at least 5 feet on both sides of the bikeway. No other landscaping or irrigation will be
required in connection with the foregoing. This will be a public pathway dedicated to the City,
either on dedicated lands or over permanent easements. The location of the foregoing
improvements will be shown on the FSP. (See Sheet CI0l of the PUD/PSP.) The City may
require that any permits for such activities be obtained in the name of the City and that the work
to be performed by the Buyer be under the terms of a license agreement with the City.
Notwithstanding any provision contained herein to the contrary, all of the foregoing shall comply
with the requirements of the US Army Corps of Engineers and St. Johns River water
Management District which requirements shall controll over the foregoing provisions to the
extent of any conflict.
2. The Buyer will extend the loop roadway shown leading from Ocoee Crown Point
Parkway past the elementary school site through Tract 2 around the proposed park site to form a
second connection to Ocoee Crown Point Parkway with the Centex Development Phase 1 b. This
road will be constructed as a 24' wide curb and gutter section, and retention will be directed to
ponds to be built within the Property or to the pond to be built by the Seller within Tract 44. The
exact route of this roadway may be reconfigured by the Buyer with Seller approval.
3. As part of the Centex Development Phase 1 b, the Buyer will construct a minimum
1000 s.f. air-conditioned community room within the City community park (Tracts #3 and 3B).
This will satisfy the Buyer's requirement for such a facility within the Property based upon the
City Code. The minimum standards for this facility is an air conditioned open room with male I
female restrooms designed to meet standard building cod,es and be ADA compliant.
4. The internal layout of streets and lots within the Property as shown on the Centex
Conceptual Plan meets the requirements of the PUD Development Standards and Amended Land
Use Plan. Street layouts shown in the Amended Land Use Plan are representative only, and
stormwater ponds, lift stations, and recreational areas may change in the Final Subdivision Plan
with City approval. [NOTE: Notwithstanding the foregoing, the internal layout of streets and
lots as shown on the Final Subdivision Plan shall be substantially consistent with the Centex
Conceptual Plan.]
5. All roadways within the Subdivision will be public. No gates are permitted.
41
ORLA_ 407262.6
6. The Final Subdivision Plan will ensure a high degree of integration with the
future elementary school, community park and waterfront village and demonstrate design
techniques that will create synergy between these uses to enhance interconnectiveness within the
community. The Buyer may propose to reconfigure these sites in order to achieve these goals.
[NOTE: The Seller acknowledges and agrees that the Final Subdivision Plan shall comply with
the foregoing requirement ifit is substantially consistent with the Centex Conceptual Plan.]
7. The Buyer shall be responsible to modify the City's St. Johns River Water
Management District Conceptual Stormwater Master Plan with respect to the Property in order to
satisfy Lake Apopka regulations relative to phosphorus loading.
8. There are a limited number of gopher tortoises on Property which will need to be
mitigated by the Buyer, at Buyer's expense, prior to the start of construction.
9. The Buyer will be responsible for contracting, at Buyer's expense, with Orange
County, Sprint, Brighthouse Networks, Lake Apopka Natural Gas, and Progress Energy to
extend all utilities to and within the site. All of these utilities are currently stubbed out near the
high school site.
10. The Buyer, at Buyer's expense, will be responsible for the following utilities in
addition to all internal subdivision utilities: a 6" diameter force main from existing lift station #l
just north of the elementary school site to a new lift station within the Subdivision; a l2"
diameter water main and a l2" re-use main along Ocoee Crown Point Parkway from the vicinity
of lift station #1 to the West Orange Trail; and an 8" water main and re-use main extending along
the park loop road extension leading from the Subdivision back up to Ocoee Crown Point
Parkway.
11. The Buyer, at Buyer's expense, will design capacity within Ponds 1 a and 1 b
(Tracts 36 and 37) as part of the master stormwater system to accommodate the proposed
elementary school site (Tract 4) including construction of an interconnecting pipe leading from
the school site to Ponds 1 a and 1 b.
12. Except where cited in the Environmental Resource Permit, a 25' upland buffer
will be required to be platted within the portion of the Property adjoining the wetlands.
13. [INTENTIONALLY DELETED]
14. The parties agree that the Centex Conceptual Plan satisfies concerns of the City
relating to noise and lighting which may affect the Subdivision as a result of the neighboring
high school site and the future elementary and park sites.
15. Utilities for the Property shall be designed in accordance with the Orange County
Master Utility Plan.
42
ORLA_ 407262.6
EXHIBIT "F"
PHASE 1 DEED RESERVATIONS
THIS DEED AND CONVEYANCE IS EXPRESSLY MADE SUBJECT TO THE
FOLLOWING RESERVATION for the benefit of that certain real property located in Orange
County, Florida which is adjacent to all or a portion of the Property and is more particularly
described in Exhibit "B" attached hereto and by this reference made a part hereof (the "Phase 2
Property"): The Grantor hereby reserves for the benefit of the Phase 2 Property non-exclusive
easements over, across and under the Property for (i) ingress and egress, both vehicular and
pedestrian, between the Propelty and the Phase 2 Property, (ii) utilities, including but not limited
to electric, sewer, water, telephone and cable television, (iii) drainage, and (iv) construction of
streets, pavement, curb, stormwater, sewer and water lines and other infrastructure improvements
as may be necessary for the development of Phase 2 Property or as may be required by
governmental entities in order to develop Phase 2 Property (collectively, the "Reserved
Easements"). The Reserved Easements shall terminate at the earlier of: (a) as to such portion of
the Property as may be platted, at such time as such portion of the Property is platted and the
streets and easements shown on said plats are completed and dedicated to the perpetual use of the
public, or (b) the conveyance from Grantor to Grantee of fee title to Phase 2 Property. Upon
termination of the Reserved Easements, the Grantor 5:hall execute an appropriate notice of
termination thereof in recordable form; provided, however, if the Reserved Easements are
terminated in part, such notice shall apply only to the portion of the Reserved Easements which
are so terminated.
43
ORLA_ 407262.6
EXHIBIT "G"
CENTEX CONCEPTUAL PLAN
See Attachment hereto which includes:
1. Housing adjacent to Ocoee Crown Parkway
2. Housing adjacent to Internal Roadway
3. Internal Roadways
4. Alleyways
44
ORLA_ 407262.6
EXH\B\T "G"
U,KE Af'OPKA
CENTEX CONCEPTUAL PLAN
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OCOEE, FLORIDA
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GEOHREY MOl/EN
CONTINUOUS RETAINING WALL
LEAD WALK MAXIMUM SLOPE OF 2%
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STOOP SETBACK
IU",
FRONT FACADE SETBACK
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STOOP
FINISH FLOOR
GRAOEUNE 9
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STREET SECTION@INTERNAlROADWAY
SCALE: 3116":1'-0"
CROWN POINT
OCOEE. FLORIDA
.
GEOFfREY MOlJEN
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EXHIBIT "G"
CENTEX CONCEPTUAL PLAN
3. INTERNAL ROADWAYS
i .
6'
I LANDSCAPE
\ 2'
50' ROW
'" -:
5'. ,
Ur. UTY EASEM 'NT 5
___._.____ SIDEWALK
12' 12'
TRAVEL - - TRAVEL
2'
6'
I LANDSCAPE S'
I ,j SIDEWALK
r-
C r-
~ FOOT TYP F CuRB ~
. -~~T ,"ITER~ E ."
WATER METER / l~i ---- ~-~---- I --=:
(------\
y '\_____) 0\
L \ \.- SANITARY SEWER
\ PVC WATER MAIN ~ STORM SEWER
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ell
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------- AND GUTTER
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~- PVC FORCEMAIN
PVC WATER MAIN
C) ~~ADWAY TYPICAL SECTION - SUBDIVISION ROAD
I-.-........----...----..-----.----.-~~~-.----sr--....-----.--. 50' ROW---...-..--------...--.-...-......--...--.:::-----~:---------,
5' \ LANDSCAPE \ LANDSCAPE 5' l
SIDEWALK 'I ~ \ . 2' - 12' _d_ 12' _i 2.... I ._?~Q~~~._i
i- . TRAVEL TRAVEL [ :
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'r- FOOT TYPE F CURB
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: WATER METER -1
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- WATER MAIN STORM SEWER
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"- SANITARY SEWER
,-
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~ PVC FORCEMAIN
DIP WATER MAIN
C) ~~ADWAY TYPICAL SECTION - SUBDIVISION ROAD
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LANDSCAPE ~
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REUSE ~~---
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TRAVEL
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EXHIBIT "G"
CENTEX CONCEPTUAL PLAN
4. ALLEYWAYS
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i .y LANDSCAPE
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ROADWAY TYPICAL SECTION - ALLEY
EXHIBIT "II"
CENTEX PRODUCT HOME CONSTRUCTION PLANS
Product Type Mode} No.
Carriage 1084
Carriage 1187
Carriage 1325
Carriage 1360
Carriage 1460
Carriage 1469
-----..- ......_-
Cottage 1740
Cottage 1786
Cottage 1992
Cottage 2189
Cottage 2220
Cottage 2332
Cottage 2776
Village 1792
Village 2442
Village 2477 I
Village 3234
Actual plans for the housing products have been provided to the Seller and are attached hereto on
a CD as part of this Exhibit "H" and are labeled as "Centex Homes Ocoee Crown Point Product
Files" .
45
ORLA_ 407262.6
EXHIBIT "H"
CENTEX PRODUCT HOME CONSTRUCTION PLANS
Product Type Model No.
Carriage 1084
Carriage 1187
Carriage 1325
Carriage 1360
Carriage 1460
Carriage 1469
Cottage 1740
Cottage 1786
Cottage 1992
Cottage 2189
Cottage 2220
Cottage 2332
Cottage 2776
Village 1792
Village 2442
Village 2477
Village 3234
Actual plans for the housing products have been provided to the Seller and are attachcd hereto on
a CD as part of this Exhibit "H" and are labeled as "Centex Homes Ocoee Crown Point Product
Files".
45
ORLA_ 407262.6
01 " El
Copy of Public Hearing Advertisement
Date Published
\ 1~IlAr~da~ I hbyvtl!.(~ 8' 11. 0 0 1 CIH~if\( d see:hon C6~) I
NOTICf Of PUBLIC HEARINGS
: CflY Of OCOEE
The env jntends to sell the
t"~W~'h~~U~~p~rt:u~~
'lltIlIIl! pl'lteriof $12.500.000:
oOOP n i ,rog,
1 DEKRtPlilGN,uApproximatel v
75 5l,t:ass acres of land (ex-
1~<ve.::ofrMl,tlands and 100
9Y~ fji"lainl located
, tl.O' e,;Pcoee Crown
,,~~ ,pdjocent to ard
~1l';~1'".~~e Crown Pamt
~~~.JI~~'
'f,; COpy :of~the proposed
soles '\,.-vllh \old along- with a
'Sketch: showing the location
of 'the' at>ove referenced
. ~~gft~r~~vl:w a~ri~~~16~~~
of the Citv Clerk between
the hours of 8:00 0.01, and
5:00 p.m.. Mondav through
Fridav. Centex Homes pro-
rg~lfv t~e~i~~~t~~1 c;usJarJi:
sian within the real proper-
tv being purchased in ac-
cordance with a final subdi-
vision plan to be approved
at a later date bv the Ocoee
Citv Commission.
The Ocoee Citr- Commission
wiH,caDSlder,'.1he :Proposed
,.s.aII! tQ;:~"te)(,:HPm~gt a
~ul>lIc. hearmg to be. field on
Februarv 20l'<!8~ftNOl7: l.li
.-p~H~. o. -,~ ~lh.,th~eQf,ter
'a~ ractiqJLat,:
H Q:" '1..5.0.J\I". '. _~~.a a
Dr;! ,'Pco,ee:. J,(l d
~' "~~g~p~eard with
tionr.; T~~S!hJ'of1~~p~iv"ecn
pursuant to Section C-8l B l
of the City of Ocoee Char-
ter.,
NOTICE: Anv person who de-
~a':et'l,~p~~~risl~~C~ii~~
~f=.::J : s~~t ~~r~g ~ni
need a. record of the pro-
.ceedings, and for such pur.
'~fe:ril'aEW~ t~e[0r:.~u~1
J.be-p.r~ing is made.
which rllco'fd includes the '
testlmonv and evidence up'
0.'1OIffit:O,_:the appeal,s
. , s with disobil-
assistance to
Sh~~Yd o~om~~~
the City Clerk.
I shore Drive.
-C.c:~ll.i .34761. (407) 905.
.,3lllD~,48 ,hOW"s In advance of
the, _mEllltlng,
I ilteresfed .partles mav 01"
pear at the public hearing
to be 'heard regarding the
~foft,"e"e~r~:~~~~tl~~S~I~~~~
mav examined .at Ocoee
CiIY Hall. 150 N. Lakeshore
Drive. Ocoee. Florida be.
tween the hours of 8:00 a.m.
and 5:00 p.m.. Mondav
~I~~~Y~ .ftii~~~v y~~ t~~e C~lr.
viSed that if anv person de-
~~~et~W)~~s~~~tdfgi~~~
matter 'considered at such
pubHe hearing. he or she
wHl"need Ii record of the
PLllClle.dlnils and for such
purpose suc~ rh':itsgnve'):'~
f the proceed.
. at their own
which record
testimony and
~~~~~o~~e w~rh
eeding assist-
,ol1ceodtlfl'attlcipate In the
epulD1t1lc,1lI1\:sltUssion should
-oontadftth", iCitv Clerk's of-
.!lc.'.llhhcior:ll in advance of
the meetJl'lll at (407) 905-
,-3lpg.,1' ~ ~-I r;-~';'
',,~",'B~tht Eikenberrv.e-- '." Citv Clerk
OLS20~- ~07