R-2016-47/ CITY OF CLERMONT
RESOLUTION NO. 2016-47
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CLERMONT, LAKE COUNTY, FLORIDA, AUTHORIZING THE
PURCHASE OF 1.49 +/- ACRES OF CERTAIN REAL PROPERTY
LOCATED IN LAKE COUNTY, FLORIDA FROM CSX
TRANSPORTATION, INC. FOR THE PURCHASE PRICE OF
$200,000.00, PLUS SELLER'S CLOSING COSTS, AND AUTHORIZING
THE MAYOR AND CITY MANAGER TO PERFORM ALL ACTS
NECESSARY AND APPROPRIATE TO CLOSE ON THE PROPERTY
AS PROVIDED HEREIN.
•
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Clermont,
Lake County, Florida, as follows:
SECTION 1.
The City Council of the City of Clermont, Lake County, Florida does hereby accept the offer
provided by CSX Transportation, Inc. in the amount of$200,000.00 plus Seller's closing costs,
and-does hereby authorize the Mayor to enter into the contract attached hereto and incorporated
herein and further authorizes the City Manager to perform all acts necessary and appropriate to
close on the'property.
SECTION 2.
The Mayor and/or City Manager are specifically authorized to withhold the formal written
agreement upon determination of any matter or factor, hereafter coming to attention which may
indicate such action is not in the City's best interest, provided that upon such withholding, the
City,Manager, with.reasonable dispatch,shall present the issue to the City Council, in session,
for review and-direction.
SECTION 3.
This Resolution shall take effect immediately upon its adoption.
•
1
CITY OF CLERMONT
RESOLUTION NO. 2016-47
PASSED AND ADOPTED by the City Council of the City of Clermont, Lake County,
Florida on this 25th day of October, 2016.
CITY OF CLERMONT
Xt-Aregeet--
Gail L. Ash, Mayor
'. r'
r
c .
`• ATTEST::
Tracy Ackroyd Howe, City Clerk
APPR•YED A TO FORM AND LEGALITY:
el
� ' antzaris, City Attorney
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PURCHASE SALE AGREEMENT
I
THIS AGREEMENT, hereinafter called the "Agreement", made and entered into by and between CSX I,
TRANSPORTATION, INC., a Virginia corporation, whose address is do CSX Real Property, Inc. - J91 5, 6737
Southpoint Drive South,Jacksonville,Florida 32216-6177,hereinafter called the"Seller",and The City of Clermont, '[
a(n)incorporated municipality whose address is 685 W.Montrose Street,Clermont,Florida 34711 hereinafter called �'
' the"Buyer",provides:
1
I. PURCHASE AND SALE: For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,Seller agrees to sell and Buyer agrees to buy the land or property rights shown or identified on Exhibit
"A", attached hereto and made a part hereof, ("Premises"), containing 1.49 acres,more or less, pursuant to and in 1
accordance with the terms and conditions of this Agreement.The Premises is located in Clermont,County of Lake,
State of Florida. . ii
2. PRICE:
2.1 The purchase price for the Premises is TWO HUNDRED THOUSAND AND NO/100 U.S. I
. DOLLARS($200,000.00)(hereinafter the"Purchase Price"). 11
2.2 If a survey of the Premises indicates an area that varies by more than five percent(5%)from the area I
indicated above, the Purchase Price shall be proportionally increased or decreased(rounded to the nearest hundred
dollars)based on the difference between the surveyed acreage and acreage indicated above. I I
3. DEPOSIT:
'
3.1 A non-interest bearing deposit in the amount of ONE HUNDRED AND NO/100 U.S. DOLLARS Ij
($100.00)payable to the order of Wells Fargo Bank as the Qualified Intermediary for Seller(hereinafterthe"Deposit")
accompanies Buyer's execution of this Agreement.The balance of the Purchase Price shall be paid at settlement or I;
closing of the transaction (hereinafter the "Closing"), in cash, by certified or cashier's check, or by other readily I
available funds acceptable to Seller. {
3.2 The Deposit shall be applied to the Purchase Price at Closing. ,The Deposit shall be refunded to 1
Buyer only in the event Buyer's Offer(as defined hereinafter)is not accepted by Seller or upon termination as provided
for in the Agreement.
3.3 If Buyer fails to close pursuant to Section 9 or perform in accordance with the terms hereof,Buyer
agrees and consents that the Deposit shall be forfeited to and retained by Seller. 1 I
4. OFFER,ACCEPTANCE,CONTRACT:
I
4.1 Until accepted by Seller, Buyer's offer to purchase the Premises (hereinafter the "Offer") as I
evidenced by its execution and delivery of this Agreement shall be a firm offer for a period of THIRTY (30)days II
from the date of Buyer's acceptance of this Agreement. Seller's acceptance of the Offer is to be evidenced by its
execution of this Agreement (the "Execution Date"). Failure of Seller to accept Buyers Offer and execute this l
Agreement within the above-mentioned period shall render the Offer null and void,and the Deposit shall be returned
to Buyer.
4.2 This Agreement, when accepted by Seller, shall constitute a contract and the entire agreement
between the parties hereto, and they shall not be bound by any terms, oral or written conditions, statements or
representations not contained herein or attached hereto.
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4.3 Neither the Buyer's Offer nor,upon its execution by all parties,this Agreement may be changed,
altered or modified except by an instrument in writing signed by Buyer and Seller.
4.4 The Buyer's Offer and this Agreement shall be executed in duplicate,each of which may be treated
as an original.
5. DUE DILIGENCE PERIOD:
5.1 Buyer shall have a period of sixty(60)days from the Execution Date to complete all inspections
and investigations,including but not limited to Sections 7,8, 10, 13 and 14 herein(hereinafter the"Due Diligence
Period").
I;
5.2 If for any reason Buyer is not satisfied with the results of any inspection or investigation,the Buyer I'
must,within the Due Diligence Period,deliver to Seller written notice of cancellation cancelling this Agreement,and ,
the Deposit shall be refunded to Buyer. If terminated, Buyer shall furnish Seller with a copy of all materials and
information(including but not limited to any engineering reports,studies,maps, site characterizations and/or zoning
related materials)developed by Buyer during the term of this Agreement relating to the potential use or the physical
condition of the Premises.
I
5.3 Buyer's failure to deliver a notice of cancellation to Seller within the Due Diligence Period shall
be considered Buyer's acceptance of the Premises in its AS-IS,WHERE-IS,WITH ALL FAULTS condition.
6. DEED:
6.1 As early as practicable after the Execution Date,Seller will prepare and submit to Buyer,for Buyer's
comments,a form of deed in conformance with the terms of this Agreement to convey the Premises to Buyer. Buyer I
shall have a period of five (5) business days after receipt of said deed to examine same and notify Seller of any j i
comments. If no comments are received within the five(5)day period,Buyer shall be deemed to have approved the
deed in the form submitted.Seller shall have no obligation to modify the deed to conform to Buyer's comments if the j
deed otherwise conforms to the terms of this Agreement.
6.2 The conveyance shall be by special/limited warranty deed, but shall be expressly subject to:
standard exceptions contained in title insurance binders; all existing roads, fiber optic facilities,and public utilities;
reservations, exceptions, easements, restrictions; all matters of record; any Permitted Exceptions, as hereafter
provided;any applicable zoning ordinances and subdivision regulations and laws;taxes and assessments,both general
and special,which become due and payable after the date of conveyance and which Buyer assumes and agrees to
Pah:
all matters that would be revealed by an appropriate ALTA/ACSM survey or by an inspection of the Premises; the
items or matters identified in Section 10.1 of this Agreement;and all existing occupancies,encroachments,ways and I
servitudes, howsoever created and whether recorded or not. The provisions of this Section shall survive Closing.
6.3 The deed shall contain one or more restrictive covenants, reading substantially as follows, to run
with title to the Premises,and to be binding upon Buyer,Buyer's heirs,legal representatives and assigns,or corporate
successors and assigns,or anyone claiming title to or holding the Premises through Buyer:
Grantee acknowledges that the Premises conveyed hereunder has been historically used for railroad
industrial operations and is being conveyed for use only as industrial,recreational or commercial property. Grantee,
by acceptance of this deed,hereby covenants that it,its successors,heirs,legal representatives or assigns shall not use I'
the Premises for any purpose other than industrial,recreational or commercial purposes and that the Premises will not
be used for (a) any residential purpose of any kind or nature (residential use shall be defined broadly to include,
without limitation, any use of the Premises by individuals or families for purposes of personal living,dwelling,or
overnight accommodations,whether such uses are in single family residences,apartments,duplexes,or other multiple
residential dwellings,trailers,trailer parks,camping sites,motels, hotels,or any other dwelling use of any kind),(b)
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any public or private school, day care, or any organized long-term or short term child care of any kind, (e) any
agricultural purpose that results in,or could potentially result in,the human consumption of crops or livestock raised
on the property (agricultural purpose shall be defined broadly to include, without limitation, activities such as food
crop production,dairy farming, livestock breeding and keeping,and cultivation of grazing land that would ultimately
produce, or lead to the production of, a product that could be consumed by a human)or(f) the establishment of a
mitigation bank and/or the sale, lease, license, conveyance or in any way distribution of mitigation credits. By
acceptance of this deed,Grantee further covenants that it, its successors, heirs, legal representatives or assigns shall
not use the groundwater underneath the Premises for human consumption,irrigation,or other purposes.
Grantee acknowledges that this deed is made upon Grantee's solicitation and request, and was not in any
way initiated by Grantor.Except as otherwise provided herein,Grantor does not represent or warrant to Grantee any
ownership or estate in the Premises or any specific title or interest in the Premises, which constituted a strip of
Grantor's former railroad operating property;and Grantee hereby releases Grantor, its officers and agents, from any
claim or demand resulting from this deed,or from any failure of or defect in Grantee's title to the Premises.
Grantee hereby agrees to the extent provided by law,without waiving any sovereign immunity it may enjoy,
and as additional consideration for the conveyance of the Premises,to defend, indemnify and hold Grantor harmless
from and against any and all liability, loss,cost and/or expense, including reasonable attorney fees,arising out of or
in connection with any and all suits or causes of actions instituted by third patties against Grantor or Grantee as a
result of the conveyance of the Premises to Grantee or as a result of the failure of title to any portion of the Premises.
Grantee and Grantor agree and acknowledge the covenants and easements contained in this Deed shall be
covenants "in gross" and easements "in gross" which shall remain binding on Grantee, its successors, heirs, legal
representatives and assigns regardless of whether Grantor continues to own property adjacent to the Premises. Grantee
acknowledges Grantor will continue to have a substantial interest in enforcement of the said covenants and easements
whether or not Grantor retains title to property adjacent to the Premises.
7. TITLE SEARCH,INSURANCE:
7.1 Buyer shall obtain and provide Seller with a copy of a commitment for title insurance(hereinafter
the"Commitment")at Buyer's sole cost and expense and within the Due Diligence Period. Buyer shall furnish Seller
with a copy of the Commitment for use by Seller in preparation of the deed and other closing documents. Buyer shall
acquire title insurance at Closing,at its expense,as evidenced by payment to the issuing title company on the closing
statement.
7.2 Any defects in title(including,without limitation,those that might be revealed by an appropriate
ALTA/ACSM survey or an inspection of the Premises,but excluding the items or matters identified in Section 10.1
of this Agreement, which Buyer agrees do not constitute defects in title to the Premises) which render title
unmarketable(and not merely insurable at a higher rated premium)and which Buyer is unwilling to accept,must be
reported to Seller in writing within the Due Diligence Period. Within ten (I0)days of receipt of Buyer's written
objections, Seller shall advise Buyer in writing whether Seller is willing to attempt to remove or cure Buyer's
objections, in which event the Closing may be postponed for a reasonable period of time to accomplish removal or
cure of Buyer's objections. If Seller notifies Buyer that Seller is unwilling or ultimately unable to remedy Buyer's
reported objections,Buyer may elect to(a)accept such title as Seller is willing to give,with such defects(hereafter
"Permitted Exceptions"), without reduction in Purchase Price, or(b) terminate this Agreement by giving written
notice to Seller within five(5)days after receipt of Seller's notice. Upon such termination,the parties hereto shall be
released from any and all further duties and obligations hereunder, including the duty to close and any liability for
breach of any of the provisions hereunder,except that a)the indemnity provisions of Section 13.1 shall remain as an
obligation of the Buyer and b)the Seller shall return the Deposit to Buyer within thirty(30)days of such termination.
If Buyer does not give such termination notice,or elects to take title subject to Permitted Exceptions, the Closing
shall take place in accordance with Section 9 of this Agreement,and the Permitted Exceptions shall be exceptions to
any deed warranty.
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7.3 Buyer's failure to report to Seller any objections as required in Section 7.2,shall constitute a waiver
by Buyer of any and all defects in title to the Premises and Buyer and Seller will proceed in accordance with the
remaining terms of this Agreement. The provisions of this Section shall survive Closing.
7.4 As information,Seller's source of title to the Premises is believed to be:
GRANTOR DEED DATE DBIPG
TODD,SALLIE H AND L H 7/22/1892 23/11
This information is provided solely to assist Buyer in reviewing title to the Premises and is not intended to,and
shall not be relied upon,by Buyer.
8. SURVEY:
8.1 Buyer shall obtain a survey of the Premises conforming to ALTA/ACSM standards at Buyer's
expense.
8.2 Within the Due Diligence Period,Buyer shall furnish Seller with a metes and bounds description
of the Premises in electronic format,and three(3)prints of a survey plat acceptable to Seller and to the Recorder of
Deeds for the County or City in which the Premises is located, certified to Buyer and Seller, for use by Seller in
preparation of the deed and other papers p
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9. CLOSING: Closing hereunder shall be held within THIRTY(30)days of following expiration of the Due
Diligence Period. Seller and Buyer agree that the Closing may occur via delivery of funds and closing documents or I
at such other place as may be mutually agreeable to Seller and Buyer. The time and date for Closing may be extended
only by Seller in writing,time expressly being of the essence in this Agreement.
10. POSSESSION: Buyer shall obtain possession of the Premises at Closing,subject to the limitations,terms
and conditions of Section 6 of this Agreement, and such other leases, licenses, easements, occupancies or other
limitations which are identified by Section 10.1,or which are discovered by Seller during the term of this Agreement
(which may not necessarily be stated in the deed), unless canceled by Seller or otherwise terminated (whether by
notice,expiration,nonrenewal or any other reason)prior to Closing.
10.1 Seller believes that the Premises is currently subject to the following leases,licenses,easements,
occupancies and/or limitations(which may or may not be of record): 11
NONE •
During the term of this Agreement, Seller will research its archives for,and shall advise Buyer if Seller discovers,
any additional leases, licenses,easements,occupancies and limitations affecting the Premises. Likewise,during the
term of this Agreement,should leases or licenses listed in(i)or(ii)above be determined to cover a continuing Seller
obligation, said lease or license will be retained by Seller, after notice to Buyer. As to any items discovered as a
consequence of such research, Seller may elect, in its sole discretion, to either cancel or otherwise terminate such
items or,pursuant to Section 10.3,to assign or to partially assign, if such item is applicable to an area greater than
the Premises,to the Buyer at Closing. -
10.2 INTENTIONALLY OMITTED
10.3 At Closing,Seller shall assign to Buyer,and Buyer shall assume,Seller's right,title and interest in
all items identified by Section 10.1,or which are subsequently discovered by Seller, unless canceled or otherwise
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terminated,at or prior to Closing. However,if such item is applicable to an area greater than the Premises,the Buyer
shall-be included as party to a partial assignment of the item(s),which may be executed after Closing.
10.4 If,prior to Closing,all or any portion of the Premises is taken by eminent domain(or is the subject
of a pending taking which has not yet,been consummated), Seller shall notify Buyer of such fact promptly after
obtaining knowledge thereof and either Buyer or Seller shall have the right to terminate this Agreement by giving
notice to the other not later than ten(10)days'after the giving of Seller's notice. If neither Seller nor Buyer elects to
terminate this Agreement es aforesaid,there shall be.no abatement,of the Purchase Price and Seller shall assign to
Buyer(without recourse)at the Closing the rights of Seller to the awards, if any, for the taking,and Buyer shall be
entitled to receive and keep all awaids for the taking of the Premises or sitar portion thereof.
10.5 INTENTIONALLY OMITTED
10.6 Buyer may, at its option and at its sole cost, secure a policy of Fire and Extended Coverage
Insurance on the buildings or Structures,provided that Buyer's liability for damage to or destruction of the buildings
or structures.during the term of this Agreement shall not be limited by the amount of such insurance.
11. ANNUAL TAXES; RENTS; LIENS;CHARGES:
1 1.1 All annual or periodic taxes or assessments on the Premises, both general and special, shall be
prorated as of the Closing. Any proration shall be based on the taxes assessed against the Seller in the year of the
delivery of possession or entry;by.Buyer and shall allow the maximum discount permined by law. If current taxes
assessed against.the Seller,are not available at the time of Closing,Buyer and Seller agree to prorate taxes based upon
the latest tax amination available to the parties and equitably adjust the proration when taxes for the year of entry
or possession become available:
11.2 Any certified,governmental assessments or liens for improvements on the Premises which are due
and payable at the time of,Closing',shall_ be paid in full by Seller;and any pending liens or assessments for
improvements not yet due and Payable at Closing shall be thereafter paid in full by Buyer.
11.3 Any rents and license fees(individually in excess of$1,000.00 prorated amount on annual rental)
accruing to the Premises shall be prorated at Closing; with rents and fees prior to the date of Closing retained by
Seller.
12. TAXES ON TRANSFER;CLOSING COSTS:
12.1 Buyer shall pay all transfer taxes,however styled or designated,all documentary stamps,recording
costs or fees or any similar expense in connection with this Agreement;the conveyance.of the Premises or necessary
to record the deed.
12.2 Buyer shall .be solely responsible for and shall pay any reassessments or taxes generated by
reclassification-of the Premises resulting from conveyance of the Premises.
12.3 If any state or local governmental authority requires,presently or in the future,the payment of any
sales,use or similar tar/upon the sale,-acquisition,use or disposition of any portion of the Premises,(whether under
statute,regulation or rule),Buyer assumes all responsibility for and shall pay the same,directly to said authority,and
shall hold Seller harmless from such tax(es)and any interest or penalty thereon. Seller shall cooperate(at no expense
to Seller)with Buyer in the prosecution of any claim for refund,rebate or abatement of said tax(es).
12.4 Seller shall pay the cost of recording any release of Seller's mortgage(s)or lien(s). In the event
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Buyer finances any portion of the Purchase Price(whether through third parties or from Seller), Buyer shall pay all
costs thereof,including recordation, intangible taxes,etc.
12.5 Buyer represents and warrants that neither it nor its officers, directors or controlling owners are
acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by the United States
Treasury Department as a terrorist,"Specially Designated National and Blocked Person,"or for or on behalf of any
person,group,entity or nation designated in Presidential Executive Order 13224 as a person who commits,threatens
to commit, or supports terrorism; that neither it nor its officers, directors or controlling owners are engaged in this
transaction,directly or indirectly,on behalf of,or facilitating this transaction,directly or indirectly,on behalf of,any
such person,group,entity or nation;and that neither it nor its officers,directors or controlling owners are in violation
of Presidential Executive Order 13224,the USA Patriot Act,the Bank Secrecy Act,the Money Laundering Control
Act or any regulations promulgated pursuant thereto."
1
12.6 The Foreign Investment in Real Property Tax Act (FIRPTA), IRC 1445, requires that every
purchaser of U.S. real property must, unless an exemption applies,deduct and withhold from Seller's proceeds ten
percent(10%)of the gross sales price. The primary exemptions which might be applicable are: (a)Seller provides
Buyer with an affidavit under penalty of perjury,that Seller is not a"foreign person",as defined in FIRPTA,or (b)
Seller provides Buyer with a"qualifying statement",as defined in FIRPTA,issued by the Internal Revenue Service.
Seller and Buyer agree to execute and deliver as appropriate any instrument,affidavit and statement,and to perform
any acts reasonably necessary to carry out the provisions of FIRPTA and regulations promulgated thereunder. Buyer
and Seller shall each indemnify and hold harmless the other with respect to any financial loss caused by the
indemnifying party's failure to fulfill its obligations under this Paragraph.
13. BUYER'S RIGHT OF ENTRY,ENVIRONMENTAL AND OTHER INSPECTIONS:
13.1 Subject to and upon compliance with the terms of this Section 13, during the term of this II
Agreement, Buyer and/or its agents may be permitted to access the Premises, subject to the rights of any tenant,
licensee, utility or other third party occupying any portion of the Premises, in order to make surveys, make
measurements, conduct environmental or engineering tests (including drilling and coring for preconstruction soil
analysis),and to make such physical inspections and analyses thereof as Buyer shall deem necessary; PROVIDED,
however,that Buyer, and/or its agents,hereby assumes all risks of such entry and agrees to defend, indemnify and
save Seller harmless from and against any claim,cost or expense resulting from any damage to or destruction of any
property(including the Premises or any improvements thereon)and any injury to or death of any person(s),arising
from the acts or omissions of Buyer and/or its agents in the exercise of this right-of-entry.Buyer agrees to do no act
which would encumber title to the Premises in exercising this right-of-entry. Any drilling and coring holes shall be
tilled upon completion of testing. All investigation-derived waste,including without limitation drilling waste,ground
water and cuttings, shall be promptly handled, characterized and disposed of properly and in accordance with all
local,State and Federal requirements,all at Buyer's sole cost.
13.2 Buyer shall give Seller ten(10)days prior written notice of any entry onto the Premises under this
Section 13 and provide Seller with a schedule and scope of work for each of the activities Buyer proposes to undertake
during such entry. Upon receipt of the foregoing,Seller reserves the right,in Seller's sole discretion,to terminate this
Agreement or if Seller permits the testing, Seller reserves the right to monitor and approve all procedures in the
conduct of any environmental assessments,tests,studies,measurements or analyses performed by or for Buyer in,on, I,
to or with respect to the Premises. Buyer shall provide in any contract or bids for site assessment or environmental
inspections of the Premises a"confidentiality clause", limiting disclosure of the results and any report only to Buyer
(or to Seller, upon request),and an"insurance clause,"requiring the company selected by the Buyer to perform the
work to produce a certificate of insurance naming the Seller and Buyer as additional insured with the following
coverage and limits:
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• General Liability (CGL) insurance with coverage of not less than FIVE MILLION DOLLARS
• . ($5,000,000)Combined Single Limit per occurrence for bodily injury and property damage. i'
i
• In addition to the above-described CGL insurance, if Buyer will undertake, or cause to be
undertaken,any construction or demolition activity within fifty(50)feet of any Seller track or any
Seller bridge,trestle or tunnel,then Buyer shall also purchase,or cause to be purchased,a policy of
Railroad Protective Liability(RPL) insurance, naming Seller as the insured, with coverage of not
less than FIVE MILLION DOLLARS($5,000,000)Combined Single Limit per occurrence,with an
aggregate of TEN MILLION DOLLARS($10,000,000). Such policy must be written on ISO/RIMA• i!
form of Railroad Protective Insurance—Insurance Services Offices Form No.CG 00 35, including
Pollution Exclusion Amendment CG 28 31. At Seller's option,in lieu of purchasing RPL insurance
(but not CGL insurance), Buyer may pay Seller a Construction Risk Fee, currently THREE
THOUSAND DOLLARS($3,000),and thereby be relieved of any obligation to purchase said RPL
• insurance.
• Worker's Compensation Insurance as required by the state in which the Work is to be performed.
This policy shall include Employers' Liability Insurance with a limit of not less than ONE
MILLION DOLLARS($1,000,000)per occurrence. Unless prohibited by law,such insurance shill
waive subrogation against Seller.
• Automobile Liability Insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering all owned,non-owned and hired vehicles.
Buyer shall also keep Seller fully apprised of the progress of,and procedures followed with respect
to,all such environmental work;and fully cooperate with all reasonable requests of Seller in undertaking and carrying
out such work. If requested by Seller, Buyer shall prepare split samples (which may then be separately tested at
Seller's sole option and cost)for delivery to Seller and shall deliver to Seller,at.no cost to Seller,within five(5)days
after receipt,copies of all results,-assessments,reports and studies,whether of an environmental nature or otherwise,
resulting from any tests or inspections conducted'by Buyer pursuant to this Section 13 or otherwise in accordance with
this Agreement.At or before Closing,Buyer shall provide Seller a reliance letter from Buyer's consultant,in form and
substance reasonably acceptable to Seller, granting Seller the right to rely on the environmental data and reports {
generated as part of Buyer's environmental due diligence, including without limitation, any Phase I and Phase II
Environmental Site Assessment Reports. The reliance letter shall not impose any additional limitations or restrictions
on Seller's reliance on said data and reports except as may be specified within the report documents themselves.
13.3 Buyer acknowledges that Seller makes no guarantee, representation or warranty regarding the
physical or environmental condition of the Premises,and Seller expressly disclaims any and all obligation and liability
to Buyer regarding any defects which may exist with respect to the condition of the Premises.
13.4 If environmental contamination of the Premises is revealed by the studies and tests conducted by
Buyer pursuant to this Section 13, in an amount and/or concentration beyond the minimum acceptable levels
established by current applicable governmental authorities, or, if Buyer is unwilling to accept the environmental
condition of the Premises as a result of such tests or assessments,Seller's and Buyer's sole and exclusive remedy shall
be to terminate this Agreement and refund the Deposit to the Buyer. Under no circumstances shall Seller be required
to correct, remedy or cure any condition or environmental contamination of the Premises, which Buyer's tests and
studies may reveal,as a condition to Closing or other performance hereunder.
13.5 Provided Seller does not elect to terminate this Agreement as provided herein,if Buyer elects not to
secure environmental tests or inspections,or fails to terminate after receipt of test results,Buyer shall take the Premises i'
"as is" at Closing; assumes all risks associated with the environmental condition of the Premises, regardless of the
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cause or date of origin of such condition;and releases all rights or claims against Seller relating to such condition or
for any costs of remediation or cure of any environmental condition. Buyer expressly assumes all obligations,liability
and responsibility for physical and/or environmental conditions of the Premises, and agrees to defend, protect,
indemnify and hold Seller harmless from any and all loss,damages, suits,penalties,costs, liability,and/or expenses
(including, but not limited to reasonable investigative and/or legal expenses, remediation and/or removal costs),
arising out of any claim(s),present, pastor future, for(a)loss or damage to any property, including the Premises(b)
injuries to or death ofany person(s), (c) contamination of or adverse effects upon the environment (air, ground or
water),or(d)any violation of statutes,ordinances,orders,rules or regulations of any governmental entity or agency,
caused by or resulting from presence or existence of any hazardous material,hazardous substance, hazardous waste,
pollutant or.contaminant (including petroleum products) in, on or under the Premises or any migration, escape or
leakage of such materials, substances, wastes, pollutants or contaminants therefrom. Buyer acknowledges that the
provisions of this Section are-deemed to be additional consideration to Seller and the condition of the Premises has
been considered as an of the Purchase Price.
13.6 Buyer acknowledges that the Property was used for railroad and/or industrial purposes and that
environmental contaminants may be present on the Property. Buyer expressly represents and warrants that it is
Buyer's responsibility to,and that Buyer will, take any and all actions necessary to ensure that the property is in a
suitable condition for Buyer's intended use. Buyer acknowledges that such actions may include a site assessment,
remedial activities,and the placement of engineering and institutional controls on the Property.
13.7 INTENTIONALLY OMITTED
13.8 The Buyer's environmental investigation shall be completed within the Due Diligence Period.
13.9 The provisions of this Article 13 shall survive Closing or termination of this Agreement.
14. SUBDIVISION APPROVAL;ZONING:
14.1 Any subdivision approval needed to complete the transaction herein contemplated shall be obtained
by Buyer at Buyer's sole risk, cost,and expense.Seller shall cooperate with Buyer in obtaining said approval,to the
extent necessary or required,but Buyer shall reimburse Seller for any and all charges,costs and expenses(including
portions of salaries of employees of Seller assigned to such project)which Seller may incur in such cooperation.
14.2 Seller makes no guarantee or warranty that any subdivision approval will be granted and assumes
no obligation or liability for any costs or expenses if same is not approved.
14.3 Costs and expenses shall include all fees, including reasonable attorneys' fees, of obtaining
subdivision plats, or filing same with the applicable governmental body(ies), or recordation thereof, including
attorneys'fees,and all other related and/or associated items.
14.4 Seller makes no guarantee, warranty or representation as to the permissibility of any use(s)
contemplated by Buyer under existing zoning of the Premises or as to any ability to secure any rezoning for Buyer's
use. -
15. BROKER'S FEES: The Buyer and the Seller each represent and warrant to the other that neither has
introduced into this transaction any person, firm or corporation who is entitled to compensation for services as a
broker,agent or finder.The Buyer and the Seller each agree to indemnify the other against and hold the other harmless
from any and all commissions,finder's fees,costs,expenses and other charges claimed by real estate brokers or sales
persons by,through or under the indemnifying party. Seller shall be under no obligation to pay or be responsible for
any broker's or finder's fees,commissions or charges in connection with handling this transaction,or Closing.
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•
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16. ASSIGNMENT,LIMITS,SURVIVAL:
I
16.1 (a) This Agreement may not be assigned by Buyer without the prior written consent of Seller,
which shall not be unreasonably withheld,provided that if Buyer wishes to cause the Premises to be conveyed directly
from Seller to a third party through an exchange of like-kind real estate on escrow terms qualifying under Section
1031 of the Internal Revenue Code of 1986, as amended, and any Treasury Regulations promulgated thereunder,
Seller shall,at Buyer's expense,cooperate in accomplishing Buyer's objective.
I!
(b) Buyer hereby agrees that closing on the disposition of the transfer of the Premises pursuant to 1
this Agreement may be structured by Seller to qualify as part of an exchange of like-kind property under Section
1031 of the Internal Revenue Code of 1986,as amended,and Treasury Regulations promulgated thereunder(a"like-
kind exchange"). Accordingly, Seller shall have the right to assign its rights and interests hereunder to a qualified
intermediary or qualified escrow agent, an exchange accommodation titleholder, or such other person as may be
necessary to qualify the transaction as a like-kind exchange. Buyer agrees to cooperate with Seller in executing such
documents as may be reasonable necessary to implement a like-kind exchange,including,but not limited to,making ''
the proceeds check payable as directed by Seller.
16.2 As limited above,this Agreement shall be binding upon the parties,their successors and permitted
assigns,or upon their heirs,legal representatives and permitted assigns,as the case may be.
16.3 Any provision calling for obligations continuing after Closing or termination of this Agreement
shall survive delivery of the deed and not be deemed merged into or replaced by any deed,whether or not the deed
so states.
•
17. DEFAULT:
17.1 In the event of a default byBuyer under this Agreement(including, payment Y mcludin ,but not limited to amens of I
the Deposit within the time specified),Seller may elect to terminate this Agreement by delivery'of notice to Buyer
and to retain the Deposit and any other money paid by Buyer to or for the account of Seller,as agreed-upon liquidated
damages in full settlement of any and all claims arising under or in any way related to this Agreement.
17.2 In the event of a default by Seller under this Agreement,Buyer's sole and exclusive remedy shall
be to terminate this Agreement by delivery of notice to Seller and to receive an immediate return of the Deposit and
reimbursement for any reasonable third-party expenses incurred by Buyer pursuant to this Agreement,not to exceed
$10,000, as agreed-upon liquidated damages in full settlement of any and all claims arising under or in any way I'
related to this Agreement. Buyer irrevocably waives any and all right to pursue specific performance of this
Agreement or any other legal or equitable remedy otherwise available to Buyer.
' I
17.3 Upon the termination of this Agreement pursuant to this Article 17, Buyer and Seller shall be
relieved of all obligations under Agreement,including the duty to close,other than(a)any liability for breach of any
of the provisions of Section 13 shall remain as obligations of Buyer and(b)Buyer shall furnish Seller with a copy of
all materials and information (including but not limited to any engineering reports, studies, maps, site
characterizations and/or zoning related materials)developed by Buyer during the term of this Agreement relating to
the potential use or the physical condition of the Premises.
17.4 "Default"shall include not only the failure to make prompt payment of any sums when due under I I
this Agreement,but also the failure to fully and timely perform any other acts required of Buyer under this Agreement.
I8. NOTICES: -
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18.1 Notice under this Agreement shall be in writing and sent by Registered or Certified Mail, Return
Receipt Requested,or by courier,express or overnight delivery,and by confirmed e-mail.
18.2 The date such notice shall be deemed to have been given shall be the business day of receipt if
received duringbusiness hours,the first business day after the business day of receipt if received after business hours
on the preceding business day,the first business day after the date sent by courier,express or overnight("next day
delivery")service,or the third busiine'ss day after the date of the postmark on the envelope if mailed,whichever occurs
first.
18.3 Notices to Seller shall be sent to:
CSX Transportation,Inc.
C/o CSX Real Property, Inc.-J915
6737 Southpoint Drive South
Jacksonville,FL 32216-6177
Ann: RENE KURTH(Transaction Specialist)
E-mail:RENE KUR•THQcsx.com
Notices to Buyer shall be sent to:
CITY OF CLERMONT
685 W. Montrose.Street
Clermont,FL 34711
Attn: Darren Gray,City Manager
Email. dgray@clermontfl.org
Phone: 352-241=7358
18.4 Any party hereto may change its address or designate different or other persons or entities to
receive copies by notifying the other party in a manner described in this Section.
19. RULES OF CONSTRUCTION:
19.1 In this Agreement,all singular words shall connote the plural number as well as the singular and
vice versa,and the masculine shall include the feminine and the neuter.
19.2 All references herein to particular articles,sections,subsections or clauses are references to
articles,sections,subsections or clauses of this Agreement.
19.3 The headings contained:herein.are solely for convenience of reference and shall not constitute a
part of this Agreement nor shall,they affect its meaning,construction or effect.
19.4 Each party hereto and its counsel have had the opportunity to review and revise(or request revisions
of)this Agreement,and therefore any usual rules ofconstruction'requiring that ambiguities are to be resolved against
a particular party shall not be applicable in the construction and interpretation of this Agreement or any exhibits
hereto or amendments hereof.
19.5 This Agreement shall be governed and construed in accordance with the laws of the state in which
the Premises is located,without regard to conflict of law rule.
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20. TIME OF ESSENCE: Time shall be considered of the essence both to the Buyer and the Seller for all
activities undertaken or required pursuant to this Agreement.
21. COUNTERPARTS: This Agreement may be executed in one or more counterparts,each of which shall
be deemed to be an original,and all of which together shall constitute one and the same instrument.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
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