Item #10 Sale of Property Located in Northeast Quadrant of Clarke Road and AD Mims Road to Charter Schools Development Group, LLC //r
ocoee
florida
AGENDA ITEM COVER SHEET
Meeting Date: September 1, 2015
Item #
Reviewed By:
Scott A. Cookson,
Contact Name: City Attorney Department Director: �`� �� '
Contact Number: 407-581-9715 City Manager: Ro•� ��/ '
Subject: Sale of Property located in northeast quadrant of Clarke Road and AD Mims Road
to Charter Schools Development Group, LLC
Background Summary:
Charter Schools Development Group, LLC (Buyer), wishes to purchase 12 acres from the City of
Ocoee (Seller) for the purpose of building a K-8 charter school and adjacent commercial
development. The Property is located within the northeast quadrant of Clarke Road and AD Mims
Road intersection. The proposed Agreement of Sale (Agreement) has been executed by the Buyer
and is attached. Pursuant to Section C-8(B)(1) of the City Charter, the City Commission must
approve the sale at an advertised public hearing. The Agreement does not become effective until
approved by the City Commission and executed by the Mayor.
A summary of the Agreement of Sale is:
Buyer: Charter Schools Development Group, LLC
Purchase Price: $2,613,000
Deposit: $5,000.00 Initial Deposit, non-refundable unless Agreement terminates due to
default by Seller.
$195,975.00 Second Deposit, paid within 10 days of the Inspection Period. Of
the second deposit, entire deposit is non-refundable if Buyer defaults; $5,000 of
the Second Deposit is non-refundable to Buyer except if Agreement terminates
due to a default by Seller.
Inspection Period: Forty-five (45) days from the Effective Date (the date the City Commission
approves the Agreement). Buyer may terminate the Agreement for any reason
at any time prior to the expiration of the Inspection Period but will not receive a
return of the Initial Deposit unless the Agreement terminates due to default by
Seller.
Closing: Thirty (30) days after the later of: 1. satisfaction or Buyer's waiver of condition
precedent relating to approvals; and 2. satisfaction of all obligations of Seller as
set forth in the contract. Closing will occur no later than March 15, 2016.
Closing Costs: Standard costs. Seller pays documentary stamp or transfer taxes, title search
fee, title insurance premium, and cost of curing any title defects. Buyer pays for
recording of the Deed, title insurance premium for any loan title policy, the cost
of Survey, and all other Closing fees.
Issue:
Should the City Commission approve the sale of the Property to Charter Schools Development
Group, LLC, and cause the Agreement of Sale to be executed and become effective?
Recommendations
City Staff recommends that the City Commission approve the sale of the Property to Charter
Schools Development Group, LLC, and authorize the execution of the Agreement of Sale.
Attachment:
Agreement of Sale
Financial Impact:
Subject to deduction for normal and customary closing costs, the sale pursuant to the Agreement
for Sale and Purchase will result in the City receiving $2,613,000 for the sale of the Property.
Type of Item:
[x] Public Hearing For Clerk's Dept Use:
❑ Ordinance First Reading ❑ Consent Agenda
❑ Ordinance First Reading [x] Public Hearing
❑ Resolution ❑ Regular Agenda
[x] Commission Approval
❑ Discussion&Direction
[x] Original Document/Contract Attached for Execution by City Clerk
❑ Original Document/Contract Held by Department for Execution
Reviewed by City Attorney Scott A. Cookson h Esq. ❑ N/A
Reviewed by Finance Dept. /J'Xl ❑ N/A
Reviewed by ( ) 111 N/A
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is made this day of
, 2015 by and between THE CITY OF OCOEE, a Florida municipal corporation
established under the laws of the State of Florida, with an address of 150 N. Lakeshore Drive,
Ocoee, Florida 34761 (the "Seller"), and CHARTER SCHOOLS DEVELOPMENT GROUP,
LLC, a Florida limited liability company, with an office at 421 South Summerlin Avenue,
Orlando, Florida 32801, or its nominee or assignee (the "Buyer"). For purposes of this
Agreement, unless otherwise specifically stated, Seller shall be deemed to be acting only in its
capacity as the owner of the Property (as defined below) and not in its capacity as a
governmental entity with jurisdiction over the Property.
BACKGROUND
A. Seller is the legal and equitable owner of approximately twelve (12) acres
of real property located within the northeast quadrant of Clarke Road and AD Mims Road,
Ocoee, Florida, as is generally depicted on the sketch plan attached hereto as Exhibit A (the
"Land"), and as will be more particularly described in the metes and bounds legal description to
be agreed upon pursuant to Section 4(b)below.
B. Seller desires to sell, and Buyer desires to acquire, all of Seller's right, title
and interest in the Property (as hereinafter defined), on the terms and conditions hereinafter set
forth.
AGREEMENTS
In consideration of the mutual promises hereinafter set forth and of other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
1. Acquisition of the Property. At the Closing (as hereinafter defined), and
subject to the terms and conditions set forth in this Agreement, Seller shall sell to Buyer and
Buyer shall purchase from Seller the following(collectively,the "Property"):
(a) the Land, together with any improvements located thereon (the
"Improvements");
(b) intentionally deleted; and
(c) all easements, covenants and other rights appurtenant to, and all
the estate and rights of Seller in and to, the Land and Improvements; and
(d) all surveys, plans, specifications, reports and other engineering
information to which Seller has access, or obtains prior to Closing, relating to the Property
(together, "Seller's Plans"); and
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(e) all right, title and interest of Seller in, to and under any licenses,
permits, approvals and warranties relating to or affecting the Land or Improvements
(collectively,the"Licenses and Approvals") as may be obtained by or on behalf of Seller prior to
Closing.
Buyer acknowledges that Seller is a municipality and the parties agree that
notwithstanding the definition of the Property set forth above, such definition shall not include
any rights the Seller has in the Property by virtue of it being a municipality as opposed to a
property owner.
2. Purchase Price.
(a) The aggregate purchase price (the "Purchase Price") of the
Property shall be Two Million Six Hundred Thirteen Thousand Dollars ($2,613,000.00) payable
as follows:
(i) Five Thousand Dollars ($5,000.00) within ten(10)business
days after receipt by Buyer of a fully-executed copy of this Agreement (which amount, together
with any interest earned thereon, shall hereafter be referred to as the "Initial Deposit");
Notwithstanding anything contained herein to the contrary, the Initial Deposit shall be non-
refundable to Buyer except in the event this Agreement terminates due to a default by Seller;
(ii) provided Buyer has not previously terminated this
Agreement in accordance with its terms, One Hundred Ninety-Five Thousand Nine Hundred
Seventy-Five Dollars ($195,975.00) within ten (10) business days after the end of the Inspection
Period (as hereinafter defined) (the "Second Deposit", together with the Initial Deposit and any
interested earned thereon shall hereafter be referred to as the "Deposit"); Notwithstanding
anything contained herein to the contrary, $5,000 of the Second Deposit shall be non-refundable
to Buyer following the expiration of the Inspection Period except in the event this Agreement
terminates due to a default by Seller; and
(iii) the balance of the Purchase Price, as adjusted by the
prorations set forth in Section 5, at Closing,by wire transfer of immediately available funds.
(b) The Deposit shall be held by Shuffield, Lowman & Wilson, P.A.
("Escrow Agent"), who shall retain such funds in an interest bearing account in accordance with
all applicable laws and regulations (as same may be amended) and the provisions of Article 18 of
this Agreement, with interest to be paid to Buyer at time of Closing if Closing takes place;
otherwise, interest shall accrue to the benefit of and be payable to the party entitled to receive the
Deposit pursuant to the terms and conditions of this Agreement.
3. Closing Documents.
(a) At the time and place of Closing, possession is to be given free of
all leases and other occupancy by special warranty deed (the "Deed").
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(b) At Closing, Seller will also assign all of its right, title, and interest
in, to and under the Licenses and Approvals and Buyer will assume the same, by an assignment
and assumption in the form attached hereto as Exhibit B (hereinafter referred to as the
"Assignment and Assumption of Licenses and Approvals") and signed by both Seller and Buyer,
and Seller will deliver the originals in Seller's possession of all such Licenses and Approvals to
Buyer.
(c) At Closing, Seller shall deliver to Buyer all maps, plans, surveys,
equipment operating manuals and all equipment warranties and equipment guarantees in Seller's
possession relating to the Property. In delivering the same, Seller makes no representation or
warranty as to the completeness or accuracy of any such items.
(d) At Closing, Seller shall provide Buyer with a Certificate of Non-
Foreign Status as provided in Section 7(a)(2)below.
(e) At Closing, Seller and Buyer shall provide the Title Company (as
defined below) with documents evidencing their authority to enter into and consummate the
transaction contemplated by this Agreement.
(f) At Closing, Seller shall execute and deliver to Buyer an IRS Form-
1099, and Seller shall be responsible for the timely filing of same.
(g) At Closing, Seller and Buyer shall each execute and deliver such
documents as may be reasonably requested by the Title Company.
(h) At Closing, Seller and Buyer shall each execute a closing
statement approved by both parties.
4. Title.
(a) Within twenty (20) days after the Effective Date, Seller shall, at
Seller's expense, obtain and provide a copy to Buyer of an ALTA Form B title insurance
commitment in the amount of the Purchase Price for an Owner's Title Insurance Policy for the
Land, together with copies of all instruments referred to in both Schedule A and Schedule B
thereof (the "Commitment") issued by Fidelity National Title Insurance Company (the "Title
Company") through its issuing agent Shuffield, Lowman & Wilson, P.A. (the "Title Agent").
Seller shall convey good, marketable and insurable fee simple title to the Land and the
Improvements to Buyer, free and clear of all liens, encumbrances, restrictions, covenants and
easements, subject only to any matters reflected on the Commitment. Buyer shall have fifteen
(15) days from receipt of the Commitment to examine title to the Property and give written
notice to Seller of any objections which Buyer may have. If Buyer fails to give Seller notice of
its objection(s)by such time, it shall be deemed to have approved the condition of the title of the
Property as shown in the Commitment, excepting any matter(s) accruing and due and payable
prior to Closing and susceptible of satisfaction and removal at or prior to Closing by the payment
of money, including without limitation unpaid mortgages, judgments, taxes, sewer and water
charges, and assessments (collectively, the "Liquidated Liens"), which Liquidated Liens Seller
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shall satisfy at or prior to Closing. Within five (5) business days after receipt of any notice of
objection from Buyer, Seller shall advise Buyer if it will cure or satisfy any such objection by
Closing; provided, however, that Seller shall be obligated to pay or satisfy all Liquidated Liens at
Closing. If Seller fails to advise Buyer within such five (5) business day period that it will not
cure or satisfy any such objections, Seller will be deemed to have elected not to remove or satisfy
such objection. If Seller timely notifies Buyer that Seller has elected not to cure such
objection(s) or is deemed to have elected not to cure such objection(s), then Buyer may, at any
time prior to the expiration of the Inspection Period, elect by written notice to Seller, either to (a)
terminate this Agreement, in which case the Initial Deposit shall be released to Seller and the
parties shall have no further rights or obligations hereunder, except for those which expressly
survive any such termination, or (b) waive its objections hereunder and proceed with the
transaction pursuant to the remaining terms and conditions of this Agreement, provided that
Seller shall pay or satisfy all Liquidated Liens at Closing. In the event Buyer fails to terminate
this Agreement prior to the expiration of the Inspection Period, Buyer shall be deemed to have
elected option (b) above. Seller agrees not to further encumber in any way Seller's title to the
Property after the date hereof without Buyer's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. Buyer shall have the right to object to any
change in title occurring after the date hereof and prior to the Closing, and if Seller cannot or will
not cure or satisfy any such objections (or any objections which Seller has previously undertaken
to cure or satisfy) by the Closing, in addition to any other rights and remedies Buyer may have
under this Agreement, Buyer may exercise the option set forth in clause(a) or(b) above.
(b) Within twenty (20) days of the date of this Agreement, Buyer
shall, at Buyer's expense, deliver to Seller, Title Company and Title Agent an ALTA survey of
the Property (the "Survey"), dated on or after the date hereof, certified to Buyer, Seller, Title
Company and Title Agent and any other party designated by Buyer, in both physical and digital
format. The Survey shall be prepared in accordance with the "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established and adopted by ALTA and ACSM in
2011 and shall include a certification that the information contained therein is, of the date
thereof, true and complete. The Survey shall include a metes and bounds description of the
Property which, upon approval by Buyer, Seller and the Title Company, shall be deemed to
constitute the legal description of the Property. If the Survey shows encroachments on the
Property or that improvements located on the Property encroach on setback lines, easements,
land of others or violate any restrictions, contract covenants or applicable governmental
regulation, the same shall constitute a title defect, to which Buyer may object to and treat like a
title objection pursuant to Section 4(a) above.
5. Expenses, Prorations and Closing Costs. All matters involving prorations
or adjustments to be made in connection with Closing and not specifically provided for in some
other provision of this Agreement shall be adjusted as follows:
(a) All items to be prorated pursuant to this Section shall be prorated
as of midnight of the day immediately preceding the date of Closing, with Buyer to be treated as
the owner of the Property, for purposes of prorations of income and expenses, on the date of
Closing.
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(b) The Property is currently exempt from ad valorem taxes and non-
ad valorem real property taxes. Buyer shall be responsible for all ad valorem and non-ad
valorem real property taxes for the current year of Closing applicable to the Property. No
proration or re-proration of taxes shall occur.
(c) Seller shall pay the documentary stamp or transfer taxes on the
Deed, the title search fee and title insurance premium for the owner's title insurance policy in the
amount of the Purchase Price, the cost of curing any title defects and Seller's attorney fees and
costs.
(d) Buyer shall pay for recording of the Deed, the title insurance
premium for any loan title policy and endorsements thereto, the cost of the Survey, and Buyer's
attorney fees and costs and all other Closing fees.
(e) If any assessments are payable in installments, then Seller shall be
responsible for all installment payments due before Closing and Buyer shall be responsible for
all installment payments due after Closing.
(f) Seller shall satisfy any existing liens or mortgages on the Property
and pay any expenses related to curing title objections, if any.
6. Development. The Buyer intends to develop and construct on the Property
a K-8 public charter school and adjacent commercial development acceptable to Buyer
consisting of buildings and other improvements including, but not limited to related landscaping,
open space, storm water, and appropriate parking (the "Project"). Buyer's obligation to complete
the purchase of the Property from Seller in accordance with the terms of this Agreement is
contingent upon the satisfaction of each of the following conditions with regard to the Property
(each of which may be waived in whole or in part in writing by Buyer):
(a) Buyer has obtained final, unappealed and unappealable approvals
from all necessary governmental authorities (including governmental agencies), for zoning,
utilities and any other approvals (including necessary parking requirements) Buyer deems
reasonably necessary permitting the construction and use of the improvements comprising the
Project, including but not limited to any required special exception.
(b) Buyer has obtained final, unappealed and unappealable approvals
and/or permits required by any and all governmental authorities (including governmental
agencies) so that the Property shall have immediate and adequate access to water, sewer and all
other utilities in accordance with the final approved site development plan.
(c) Buyer has obtained final, unappealed and unappealable approvals
and/or permits required by any and all governmental authorities (including government agencies)
for storm water management; including easements and agreements for constructing and
maintaining storm water basins; all wetlands studies and approvals in such form that wetlands, if
any, shall not preclude construction of roads, utilities, storm water management facilities, or any
other required improvements for erection of buildings on the Property.
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(d) Buyer has obtained all permits and approvals, and all conditions
thereof shall have been satisfied, so as to allow for the issuance of building permits subject only
to satisfaction of the following requirements by Buyer at or after Closing (i) submission of
construction drawings in accordance with applicable law, (ii) execution by the Buyer of the
necessary development agreements, (iii) execution and funding by Buyer of the necessary
escrow agreements for municipal improvements, and sewer and water improvements, and (iv)
payment by the Buyer of all municipal fees and charges associated therewith.
(e) Buyer has obtained any and all other easements, approvals and/or
permits that may be necessary to construct and use the improvements comprising the Project.
(f) Buyer shall obtain, at no additional cost to Seller, all easements
and roads that in Buyer's sole reasonable discretion are necessary for property access, utilities
and signage to the Property in accordance with Buyer's final approved site development plan.
The items referred to in subsections 6(a) through 6(f) hereof shall hereafter be
referred to as the "Buyer Required Approvals." After the end of the Inspection Period, Buyer
shall diligently proceed with the filing of all applications necessary for obtaining the Buyer
Required Approvals. Seller agrees, at no expense to Seller, to cooperate with Buyer in
connection with the Buyer Required Approvals to the extent of signing all applications necessary
for obtaining the Buyer Required Approvals. Seller's cooperation as aforesaid shall not entitle
Seller to any additional compensation. All permit fees, studies, deposit and investigation costs
incurred in connection with the Buyer Required Approvals shall be the sole responsibility of
Buyer and Buyer agrees to affirmatively use its good faith efforts to obtain all of the Buyer
Required Approvals without delay and as expeditiously as reasonably possible. Seller
acknowledges that Buyer will likely contact, meet with and/or obtain consents for the Project
from neighboring property owners during the Inspection Period and in the process of obtaining
the Buyer Required Approvals. Nothing herein shall be construed or interpreted to imply the
Seller's promise or commitment to approve Buyer's Required Approvals unless and until such
Buyer Required Approvals are approved by the City Commission of the City of Ocoee or other
applicable public body.
7. Representations of Seller and Buyer.
(a) Seller hereby represents, warrants and covenants as follows, all of
which shall be true and correct on the date hereof and at, and as of, the Closing:
(1) Seller has full and complete power and authority to
execute, deliver and perform this Agreement and all agreements and documents referred to in
this Agreement; no consents of any third party are required. This Agreement is binding and
enforceable against Seller in accordance with its terms. The person who has executed this
Agreement on behalf of Seller has the authority to do so.
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(2) Seller is not a "foreign person" and will deliver to Buyer at
Closing an affidavit certifying that it is not a "foreign person" within the meaning of the Internal
Revenue Code of 1954, as amended.
(3) To the best of Seller's knowledge without investigation,
there exists no noncompliance or violation of federal, state or local environmental laws or
regulations (collectively, the "Environmental Laws") related to the Property or the presence or
release of Hazardous Materials (as hereinafter defined) on or from the Property. The term
"Hazardous Materials" shall include, without limitation, any hazardous substance, pollutant, or
contaminant regulated under CERCLA; oil and petroleum products and natural gas, natural gas
liquids, liquefied natural gas, and synthetic gas usable for fuel; pesticides regulated by FIFRA;
asbestos, polychlorinated biphenyls, and other substances regulated under TSCA; source
material, special nuclear material, and by-product materials regulated under the Atomic Energy
Act; and industrial process and pollution control wastes to the extent regulated under applicable
Environmental Laws. Further, to the best of Seller's knowledge without investigation, no above-
ground or underground storage tanks are, or have in the past been, located at the Property.
(4) To the best of Seller's knowledge without investigation,
there are no charges, assessments or liens for public improvements concerning the Property
which remain unpaid. Seller agrees to pay for any other charges, assessments or liens made for
any public improvements if work in connection therewith is begun prior to Closing.
(5) To the extent any improvements which might form the
basis of mechanics' liens or materialmen's liens have been made or will be made to the Property
prior to Closing, Seller agrees to keep the Property free from liens which might result from such
improvements.
(6) Seller is the sole legal and equitable owner of the Property
in fee simple and Seller has no actual knowledge of any unrecorded or undisclosed legal or
equitable interest in the Property owned or claimed by any party other than Seller, and except
such as will be discharged or terminated prior to or concurrently with Closing.
(7) Seller has not received notice of default under any of the
documents, recorded or unrecorded, affecting the Property.
(8) Seller has no actual knowledge of any pending judicial,
municipal or administrative proceedings affecting the Property or in which Seller is a party by
reason of Seller's ownership of the Property or any portion thereof, including without limitation,
proceedings for or involving collections, condemnations, eminent domain, zoning violations, or
personal injuries or property damage alleged to have occurred on the Property or by reason of the
condition or use of the Property, nor has Seller received any written notice of any such
proceeding,pending or threatened.
(9) Seller has received no written notice from any insurance
carrier of the existence of conditions at the Property which if not corrected would result in
termination of insurance coverage or increase its cost.
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(10) Seller has not received any notice of any uncorrected
violations of any municipal or county ordinances, or other legal requirements with respect to the
Property, or the use, occupancy and construction thereof, including fire, health, environmental,
building and safety codes.
(11) To the best of Seller's knowledge without investigation,
other than as expressly set forth in this Agreement or otherwise disclosed in writing to Buyer
pursuant to this Agreement, there are no undisclosed liabilities or agreements affecting the
Property or Seller, in its capacity as owner of the Property, that would adversely affect the
Property or Seller's ability to consummate the transactions contemplated herein.
(b) Buyer hereby represents and warrants that it is a limited liability
company duly formed and validly existing under the laws of the state of Florida, with full and
complete authority to enter into this Agreement and to consummate the transactions
contemplated herein and the party executing this Agreement on behalf of Buyer has the authority
and power to execute and deliver this Agreement and bind Buyer to this Agreement and all
transactions contemplated herein.
(c) The continued validity in all respects of the foregoing
representations and warranties shall be a condition precedent to the obligation of the party to
whom the representation and warranty is given to close this transaction. In the event at any time
prior to Closing Seller learns or has reason to believe that any of Seller's representations and
warranties is no longer true or valid, Seller shall immediately notify Buyer in writing and therein
specify the factors rendering or likely to render such representations or warranties untrue or
invalid. All representations and warranties set forth in this Agreement shall be deemed remade
as of the date of Closing and shall survive the Closing for a period of six (6) months. If Buyer
shall determine after Closing that any of said representations and warranties were not valid and
correct in all material respects on the date of Closing, then Buyer shall be entitled to pursue any
and all legal remedies available at law or in equity.
8. Access to the Property. Buyer and/or its agents and representatives shall have the
right to enter upon the Property at any time prior to the Closing for purposes of conducting such
inspections, investigations and/or studies as Buyer deems necessary. Buyer assumes all risks
involved in entering upon the Property. In the event of any physical damage to the Property, any
personal property, or any other aspect of the Property resulting, directly or indirectly, from the
exercise by Buyer of its rights under this Section 8, Buyer hereby agrees to restore such Property,
personal property or such other aspect of the Property to its condition prior to such damage and
shall indemnify and hold harmless Seller from and against all physical damage to the Property,
personal injury, and/or any other claims or liability which may occur as a direct or indirect result
of Buyer's tests and investigations.
9. Due Diligence.
(a) Buyer shall have forty-five (45) days from the Effective Date, or
such shorter period of time as Buyer may elect in Buyer's sole and absolute discretion upon
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written notice to Seller(such 45-day period or shorter period as Buyer may elect, the "Inspection
Period"), to investigate the Property and all matters relevant to its acquisition, ownership and
operation thereof. Such right of investigation shall include, without limitation, the right to have
made, at Buyer's expense, any studies or inspections of the Property that Buyer may deem
necessary or appropriate. Seller agrees to cooperate reasonably with any such investigations,
inspections or studies made by or at Buyer's direction. Seller agrees further to provide to Buyer
within ten (10) days after the date of this Agreement any of the following which Seller has in its
possession or control, in order to facilitate Buyer's investigation of the Property: (i) copies of all
approvals, permits, licenses and the like as may be required by applicable federal, state and local
law for the use and operation of the Property; (ii) building department, zoning and other
governmental records; (iii) intentionally deleted; (iv) all surveys, plans and specifications for the
Land and the Improvements; (v) any existing environmental, engineering, structural, geological
and seismological audits and reports for the Property, and soil reports for the Land; (vi)
intentionally deleted; and (vii) such further instruments, documents and information as Buyer
may reasonably request as necessary for preparation for the Closing. Seller makes no
representation or warranty as to the completeness or accuracy of any of the items provided to
Buyer. Seller shall also copy Buyer on all correspondence sent or received by Seller of any type
pertaining to the Property during the term of this Agreement. With the prior consent of Seller,
Buyer may obtain, at Buyer's cost, reliance letters from the various consultants that issued any
such reports relating to the Property permitting Buyer, and any other party Buyer may designate,
to rely on same.
(b) Buyer shall have the right to terminate this Agreement at any time,
in its sole and absolute discretion and for any or no reason, on or before the end of the Inspection
Period. If, on or before the end of the Inspection Period, Buyer gives Seller written notice that
Buyer has elected to terminate this Agreement, then this Agreement shall terminate, in which
event the Initial Deposit shall be released to Seller, and the parties shall have no further rights or
obligations hereunder, except for those which expressly survive any termination of this
Agreement. If Buyer does not cause the termination of this Agreement pursuant to this Section
9, then this Agreement shall remain in full force and effect in accordance with its terms and
$5,000 of the Second Deposit shall become non-refundable except in the event this Agreement
terminates due to a Seller default.
10. Conditions Precedent.
(a) Notwithstanding anything contained herein to the contrary, Buyer's
obligation to close hereunder is contingent upon the satisfaction in Buyer's sole discretion of the
following conditions (the "Conditions Precedent"), any of which may be waived by Buyer in
Buyer's sole and absolute discretion:
(1) Seller's closing documents described in Section 3 shall have been
delivered.
(2) As of the date of Closing, title to the Property shall be as required
by Section 4 of this Agreement.
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(3) All of the representations and warranties contained in Section 7(a)
shall be true and correct as of Closing.
(4) The Required Approvals set forth in Section 6 of this Agreement
shall have been obtained.
(5) Buyer shall not have terminated this Agreement under the terms of
Section 9 of this Agreement.
(b) If any of the foregoing Conditions Precedent are not or, in Buyer's
reasonable judgment, cannot be satisfied, Buyer may, at Buyer's sole option:
(1) terminate this Agreement, whereupon (i) if Buyer has made good
faith and diligent efforts to obtain the Required Approvals set forth in Section 6 of this
Agreement, $5,000 of the Second Deposit shall be released to Seller and the balance of the
Second Deposit shall be returned promptly to Buyer and the parties shall have no further rights
or obligations hereunder, except for those which expressly survive any termination of this
Agreement, or (ii) if Buyer has not made good faith and diligent efforts to obtain the Required
Approvals set forth in Section 6 of this Agreement, the entire Second Deposit shall be released to
Seller and the parties shall have no further rights or obligations hereunder, except for those
which expressly survive any termination of this Agreement; or
(2) waive such condition, in whole or in part, and complete the
Closing; or
(3) in the event of a failure of the condition set forth in Section
10(a)(1), 10(a)(2) or 10(a)(3) above, notwithstanding anything to the contrary contained in this
Agreement, Buyer may treat such failure as Seller's default entitling Buyer to exercise the
remedies set forth in Section 15(b) of this Agreement.
11. Operations Prior to Closing.
(a) Seller agrees to maintain the Property between the date hereof and
the date of Closing, in the same general manner as it was being maintained on the date hereof.
Buyer authorizes Seller to operate and/or maintain the Property and to enter into agreements in
the ordinary course of ownership.
(b) Without the prior written consent of Buyer, which consent shall
not be unreasonably withheld or delayed, Seller shall not: (i) enter into any lease, agreement of
sale, option or any other agreement or contract affecting all or any part of the Property; (ii) alter
or otherwise encumber title to the Property; (iii) amend any of the Licenses and Approvals; (iv)
enter into any Contract which is not terminable on Seller's notice on or prior to the date of
Closing or adversely affects Seller's ability to consummate the transaction contemplated herein;
(v) remove or damage any structures, fixtures, systems, improvements, standing trees, shrubbery,
plants, landscaping or soil now in or on the Property during the term of this Agreement; and (vi)
dispose of any trash, debris, building materials or organic material (including without limitation
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trees and stumps) on the Property, nor permit others to do so and in the event such disposal has
occurred prior to the date of Closing, Seller shall remove all such materials at Seller's expense
prior to the date of Closing.
12. Brokers. Buyer and Seller mutually represent to each other that no
brokers, agents or finders brought about this Agreement or the conveyance of the Property to
Buyer pursuant hereto except Randolph Diamond of Red Apple Real Estate, representing Buyer,
whose commissions shall be the sole responsibility of Buyer pursuant to a separate agreement.
Buyer and Seller each agree to indemnify and hold the other harmless from and against any loss,
damage or claim arising from a breach of the above representation. The provisions of this
Section 12 shall survive Closing hereunder.
13. Closing. Closing ("Closing") shall occur through an escrow with the Title
Agent or in such other manner as Buyer and Seller agree in writing, thirty (30) days after the
later of: (i) satisfaction (or Buyer's waiver) of the Condition Precedent set forth in Section
10(a)(4) above, and (ii) satisfaction of all other obligations of Seller set forth herein (herein the
"Closing Date"). Notwithstanding anything contained herein to the contrary, the Closing Date
shall be no later than March 15, 2016.
14. Casualty; Condemnation. All risk of loss or damage to the Property by
casualty of any nature prior to Closing shall be borne by Seller. If, prior to Closing, the Property
or any part thereof is taken by eminent domain, this Agreement shall become null and void, at
Buyer's option, and upon receipt by Seller of written notice of an election by Buyer to treat this
Agreement as null and void, the Initial Deposit and $5,000 of the Second Deposit shall be
released to Seller and the balance of the Second Deposit shall be returned to Buyer. If Buyer
elects to proceed and to consummate the purchase despite said taking (such election being
deemed to have been made unless Buyer notifies Seller to the contrary within fifteen (15)
business days after notice from Seller to Buyer of the amount of the proceeds resulting from such
taking or casualty), there shall be no reduction in or abatement of the Purchase Price, and Seller
shall assign to Buyer all of Seller's right, title and interest in and to any award made or to be
made in the condemnation proceeding.
15. Default.
(a) If Buyer shall violate or fail (in breach of its obligations hereunder)
to fulfill or perform any of the terms, conditions or undertakings set forth in this Agreement
within ten (10) days written notice from Seller (no prior notice shall be required in the event
Buyer defaults in failure to close as and when required hereunder), then, as Seller's sole and
exclusive remedy therefore, Seller shall be entitled to retain the full Deposit then held by the
Escrow Agent as liquidated and agreed upon damages for the losses and injuries which Seller
shall have sustained and suffered as a result of Buyer's default, and, thereupon, the parties hereto
will be released and relieved from all provisions of this Agreement. The parties acknowledge
that Seller's actual damages in the event of Buyer's default under this Agreement will be
difficult to ascertain, and that such liquidated damages represent the parties' best estimate of
such damages.
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(b) If Seller shall violate or fail (in breach of its obligations hereunder)
to fulfill or perform any of the terms, conditions or undertakings set forth in this Agreement
within ten (10) days written notice from Buyer (no prior notice shall be required in the event
Seller defaults in failure to close as and when required hereunder), Buyer shall be entitled to
terminate this Agreement and receive the return of the full Deposit then held by the Escrow
Agent or Buyer may also pursue specific performance against Seller.
16. Notices. All notices, invoices, bills, demands, statements, and requests
("Notice") required or permitted to be given hereunder shall be in writing and shall be deemed to
have been properly given or served as of(i) the date of personal delivery with acknowledgment
of receipt; (ii) the first business day after the date delivered to a reputable overnight courier
service providing proof of delivery or (iii) the date of delivery if sent by facsimile transmission
or electronic mail with a hard copy sent on the same day by a reputable overnight courier service
providing proof of delivery. The initial address of the Buyer and Seller is set forth below:
Buyer: Charter Schools Development Group, LLC
421 South Summerlin Avenue
Orlando, Florida 32801
Attention: Mr. Charles H. Cordes
Fax: (267) 331-4889
Email: charles.cordes@summitcmgroup.com
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With a copy to:
Zimmerman, Kiser& Sutcliffe, P.A.
315 E. Robinson Street, Suite 600
Orlando, Florida 32801
Attention: Judd Hedrick, Esq.
Fax: (407)418-1251
Email: ihedrick@zkslawfirm.com
Seller: The City of Ocoee
150 N. Lakeshore Drive
Ocoee, Florida 34761
Attention: Rob Frank, City Manager
Fax: (407) 905-3118
Email: rfrank@ocoee.org
With a copy to:
Shuffield Lowman&Wilson
100 Legion Place, Suite 1700
Orlando, Florida 32801
Attention: Scott Cookson, Esq.
Fax: (407) 581-9800
Email: scookson@shuffieldlowman.com
Any party shall have the right from time to time and at any time,upon at least ten(10) days'prior
written notice delivered pursuant to the terms hereof, to change its respective address and to
specify any other address within the United States of America, provided said new address is not
a post office box.
17. Miscellaneous.
(a) Intentionally deleted.
(b) This Agreement contains the entire Agreement of the parties and
may not be modified except in writing, signed by the parties hereto.
(c) The Seller shall not enter into any other agreement nor assign any
of its right, title or interest in the Property to any other person or entity.
(d) Buyer shall have the right to assign this Agreement without Seller's
prior written consent, provided that (i) the assignee assumes all of Buyer's obligations, duties
and liabilities; (ii) such assignment shall not receive Buyer of its obligations under this
Agreement; and (iii) Buyer shall provide written notification to Seller of such assignment within
three (3) days of such assignment in the event the assignment will occur prior to Closing and at
least fifteen (15) days prior to Closing if the assignment will occur at Closing.
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(e) This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which counterparts together shall constitute one and
the same instrument.
(f) If any term or provision of this Agreement or application thereof
shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby and each other term and provision of this Agreement shall be valid and enforced
to the fullest extent permitted by law. Failure of either party at any time to require performance
of any provision of this Agreement shall not limit the party's right to enforce the provision.
Waiver of any breach of any provision shall not be a waiver of any succeeding breach of the
provision or a waiver of the provision itself or any other provision.
(g) Buyer and Seller agree to cooperate with each other and to take
such further actions as may be requested by the other in order to facilitate the timely purchase
and sale of the Property, and Buyer's development of the Property following Closing.
Accordingly, Seller agrees to execute such other documents reasonably requested by Buyer.
(h) If any date on which a time period scheduled to expire herein is a
Saturday, Sunday or federal holiday, the subject date shall be extended to the next business day.
(i) 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 primarily
by counsel for one of the parties, it being recognized that both Buyer and Seller have contributed
substantially and materially to the preparation of this Agreement.
(j) As used in this Agreement, the phrases "the date hereof' and "the
date of this Agreement" shall mean the date of execution by the last party to sign this Agreement.
(k) To the extent permitted by law, Seller shall indemnify, defend and
hold harmless Buyer (but not any other party) from and against any and all claims, demands,
causes of action, losses, damages, liabilities, costs and expenses (including reasonable attorneys'
fees and court costs, whether suit is instituted or not), asserted against Buyer by reason of or
arising out of the ownership, management, operation, maintenance and/or repair of the Property
prior to the date of Closing.
(1) Buyer agrees to defend, indemnify and hold harmless Seller (but
not any other party) from and against any and all claims, demands, causes of action, losses,
damages, liabilities, costs and expenses (including reasonable attorneys' fees and court costs,
whether suit is instituted or not) asserted against Seller by reason of or arising out of Buyer's
ownership, management, operation, maintenance and/or repair of the Property from and after the
date of Closing.
(m) Each of the indemnifications contained in Subsections 17(k) and
(1) shall survive the termination of this Agreement and the closing of this transaction.
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(n) Radon Gas. In compliance with §404.056, Florida Statutes, Buyer
is hereby made aware of the following: RADON GAS 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.
(o) In the event of any litigation arising from this Agreement, the
prevailing party shall be entitled to reimbursement of reasonable attorneys' fees and costs
incurred at all proceedings, including, without limitation, before trial, at trial and all appellate
levels, from the non-prevailing party. The provisions of this Section shall survive Closing and
the termination of this Agreement.
(p) This Agreement shall be construed and interpreted under the laws
of the State of Florida, without giving effect to principles of conflict of laws. Seller and Buyer
agree that the proper venue with respect to any state or federal litigation in connection with this
Agreement shall be Orange County, Florida.
(q) If any provisions of this Agreement shall be void, or voidable, for
violation of the rule against perpetuities, then such provision shall continue until twenty-one (21)
years after the death of the last survivor of the members of the United States Congress as of the
date of this Agreement.
18. Escrow. The Deposit and any other sums which the parties agree shall be
held in escrow, together with all interest earned thereon, shall be held by the Escrow Agent, in
trust, and disposed of only in accordance with the following provisions. The Escrow Agent shall
invest the Deposit in government insured interest-bearing instruments satisfactory to both Buyer
and Seller, shall not commingle the Deposit with any funds of the Escrow Agent or others, and
shall promptly provide Buyer and Seller with confirmation of the investments made. If for any
reason the Closing does not occur, the Escrow Agent shall deliver the Deposit to Seller or Buyer
only upon receipt of a written demand therefore from such party, subject to the following
provisions of this Section 18. If Escrow Agent receives a written demand from Buyer for
delivery of the Deposit prior to the end of the Inspection Period, then Escrow Agent shall be
authorized to deliver such payment to Buyer. If for any reason the Closing does not occur and
subsequent to the Inspection Period either party makes a written demand upon the Escrow Agent
for payment of the Deposit, the Escrow Agent shall give written notice to the other party of such
demand. If the Escrow Agent does not receive a written objection from the other party to the
proposed payment within ten (10) days after the giving of such notice, the Escrow Agent is
hereby authorized to make such payment. If the Escrow Agent does receive such written
objection within such period, the Escrow Agent shall continue to hold such amount until
otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a
court. The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their
request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of
either of the parties, and that the Escrow Agent shall not be liable to either of the parties for any
15
action or omission on its part taken or made in good faith, and not in disregard of this
Agreement, but shall be liable for its willful misconduct or gross negligence. Seller and Buyer
shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees, incurred in connection with the
performance of the Escrow Agent's duties hereunder, except with respect to willful actions or
omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or
involving gross negligence on the part of the Escrow Agent.
19. Execution. This Agreement must be approved by the City Commission of
the City of Ocoee at a duly noticed public hearing. Prior to such hearing, Buyer shall execute
this Agreement and deliver the same to Seller. This Agreement shall be effective on the date
approved by the City Commission of the City of Ocoee and executed by the Mayor of the City of
Ocoee (the"Effective Date").
20 No-Waiver of Sovereign Immunity. Nothing contained in this Agreement
or in any instrument executed pursuant to the terms of this Agreement shall be construed as a
waiver or attempted waiver by the Seller of its sovereign immunity under the constitution of the
laws of the State of Florida. This provision shall survive termination of this Agreement and
Closing.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto
have executed this Agreement as of the day and year first above written.
SELLER:
Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
By:
Print Name: Name:
Title:
Print Name:
Attest:
Beth Eikenberry, City Clerk
Date:
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE. APPROVED AS COMMISSION AT A MEETING HELD
TO FORM AND LEGALITY THIS_ ON ,2015 UNDER
DAY OF , 2015. AGENDA ITEM NO.
Shuffield, Lowman &Wilson, P.A.
Scott A. Cookson, City Attorney
17
BUYER:
CHARTER SCHOOLS DEVELOPMENT GROUP, LLC,
a Florida limited liability company
By:
Charles H. Cordes, Member
Date:
18
JOINDER BY ESCROW AGENT
Shuffield, Lowman & Wilson, P.A., as Escrow Agent, hereby joins in the
Agreement to evidence its agreement to hold the Deposit and otherwise to perform its obligations
as escrow agent, all as provided for in Section 18 of this Agreement. The undersigned represents
and warrants that(s)he is duly authorized to execute and deliver this Joinder.
ESCROW AGENT:
Shuffield, Lowman&Wilson, P.A.
By:
Name:
Title:
19
EXHIBIT A
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Note that the parties intend to exclude from the Property
(outlined above in red) the approximately fifteen (15) foot
strip of land along Clarke Road that was granted to the Seller
to preserve future right-of-way for a right-turn lane related to
future development of the Silvestri parcel . Said 15-foot strip
shall be excluded from the final legal description and survey.
20
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LICENSES AND APPROVALS
FOR VALUE RECEIVED, and intending to be legally bound,
(the "Assignor") hereby conveys, transfers, assigns, and sets over to CHARTER SCHOOLS
DEVELOPMENT GROUP, LLC or its assignee ("Assignee") and Assignee accepts and
assumes, all of Assignor's right, title and interest in, to and under those certain Licenses and
Approvals identified on Exhibit A hereto.
This Assignment and Assumption of the Licenses and Approvals is made,
executed and delivered pursuant to a certain Agreement of Sale dated as of
between Assignor and Assignee (together with any amendments, the "Agreement of Sale"). All
capitalized terms, if any, used herein without separate definition, will have the same meanings
therefor as defined in the Agreement of Sale.
To the extent permitted by law, Assignor hereby indemnifies and holds Assignee
harmless from and against all claims, demands, losses, damages, expenses and costs including,
but not limited to, reasonable attorneys' fees and expenses actually incurred, arising out of or in
connection with Assignor's failure, prior to the date of this Assignment, to observe, perform and
discharge each and every one of the covenants, obligations and liabilities with respect to the
Licenses and Approvals and relating to, or accruing with respect to, the period prior to the date
of this Assignment. Assignee hereby indemnifies and holds Assignor harmless from and against
all claims, demands, losses, damages, expenses and costs including, but not limited to,
reasonable attorneys' fees and expenses actually incurred, arising out of or in connection with
Assignee's failure, from and after the date of this Assignment, to observe, perform and discharge
each and every one of the covenants, obligations and liabilities assumed by Assignee with
respect to the Licenses and Approvals and first accruing with respect to the period from and
after,but not before, the date of this Assignment.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment
on this of , 2015.
ASSIGNOR:
Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
By:
Print Name: Name:
Title:
Print Name:
Attest:
Beth Eikenberry, City Clerk
Date:
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE. APPROVED AS COMMISSION AT A MEETING HELD
TO FORM AND LEGALITY THIS ON ,2015 UNDER
DAY OF , 2015. AGENDA ITEM NO.
Shuffield, Lowman&Wilson, P.A.
Scott A. Cookson, City Attorney
3
ASSIGNEE:
CHARTER SCHOOLS DEVELOPMENT GROUP, LLC,
a Florida limited liability company
By:
Charles H. Cordes, Member
H:\EJH\Charter Schools Dev Group\Ocoee\Ocoee Charter School Contract vl.docx
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