R-2017-34 CITY OF CLERMONT
RESOLUTION NO. 2017-34
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CLERMONT, LAKE COUNTY, FLORIDA, DECLARING SURPLUS
APPROXIMATELY .6 +/- ACRES OF REAL PROPERTY LOCATED
AT THE NORTHWEST CORNER .OF WEST MINNEOLA AVENUE
AND VICTORY WAY AND OWNED BY THE CITY OF CLERMONT,
AUTHORIZING THE SALE THEREOF TO GRAFF DEVELOPMENT,
LLC. FOR THE PURCHASE PRICE OF $195,000, AND
AUTHORIZING THE MAYOR TO EXECUTE THE SALE
AGREEMENT 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, Florida does declare surplus the real property located
at the northwest corner of West Minneola Ave. and Victory Way consisting of .6 +/- acres
(26,136 +/- square feet), and hereby accepts the offer from GRAFF DEVELOPMENT, LLC to
purchase the .6 +/- acres of real property from the City for $195,000.00, 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 his or her determination of any matter or factor hereafter coming to their
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.
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CITY OF CLERMONT
RESOLUTION NO. 2017-34
PASSED AND ADOPTED by the City Council of the City of Clermont, Lake County,
Florida on the 25th day of July, 2017.
CITY OF CLERMONT
.
1 .OM1 �y _.,.,
ail L. Ash, or
*`c,V1:ATTEST,A e)
v ALJASS. AV
Tracy Ackr, d owe, City Clerk
Approve. .s to form and le_.ali .
/441
•
CONTRACT FOR SALE AND PURCHASE
THIS CONTRACT FOR SALE AND PURCHASE (the"Contract") is made and entered into on
this 25th day of July, 2017 (the "Effective Date"), by and between CITY OF CLERMONT, a •
Florida Municipal Corporation,whose address is 685 West Montrose Street,Clermont,FL 34711
("Seller"), and GRAFF DEVELOPMENT, LLC a Florida limited liability company whose
address is 1200 Oakley Seaver Dr., Suite 203, Clermont, FL 34711 ("Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of certain property located in Lake County as more
particularly described below; and
WHEREAS, Seller desires to convey said real property to Buyer and Buyer desires to
purchase the same from Seller;
NOW THEREFORE,for and in consideration of the premises hereof,the sums of money
to be paid hereunder, the mutual covenants herein contained, and for other good and valuable
considerations,the receipt and sufficiency of which are hereby acknowledged,the parties hereto
do covenant, stipulate and agree as follows, to wit:
1. Description of Property. Parcel ID No.: 1714061 and the easterly portions only
of Parcel ID Nos: 3778221 and 3778214, as further depicted in Exhibit "A" attached hereto,
consisting of .6 +/- acres (21,136 +/- sq. feet) together with all improvements, tenements,
hereditaments, rights, privileges and easements thereunto belonging, (hereinafter together
referred to as the "Property). The final legal description of the Property shall be determined,
and agreed to by the parties, as determined by a survey to be completed by a Florida licensed
surveyor obtained by Buyer at its sole expense and as part of the inspection period below. The
survey provided herein shall specifically exclude any and all existing public road known as
Victory Way and such other property as Seller has advised Buyer during the inspection period
below, is required to maintain Victory Way.
2. Agreement to Sell and Purchase. Seller hereby agrees to sell and convey and
Buyer hereby agrees to purchase and accept the Property upon the terms and subject to the
conditions set forth in this Contract.
3. Purchase Price and Method of Payment. Subject to credits, adjustments and
proration for which provisions are hereinafter made in this Contract, the total purchase price for
the Property to be paid by Buyer and received and accepted by Seller (the "Purchase Price")
shall be ONE HUNDRED NINETY-FIVE THOUSAND DOLLARS($195,000).The Purchase
Price shall be paid by Buyer to Seller in the manner and at the times following, to wit:
A. Earnest Money Deposit. Within 5 business days from execution of this Contract by all
parties, the sum of FIVE THOUSAND and no/100 DOLLARS ($5,000) shall be deposited by •
Buyer with Daniel F. Mantzaris, Esq., deBeaubien, Simmons, Knight, Mantzaris & Neal, LLP
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(the "Escrow Agent"), as an earnest money deposit hereunder ("Earnest Money Deposit"). The
Earnest Money Deposit shall not be refundable except as set forth herein.
B. Cash Delivered at Closing. At Closing the Earnest Money Deposit plus the balance of
the Purchase Price shall be delivered to Seller in United States funds by wire transfer. All
deposits shall be applied to the Purchase Price.
C. This Contract shall serve as escrow instructions and an executed copy of this Contract
shall be deposited with Escrow Agent. In the event of a termination of this Contract or a default
under this Contract, the Earnest Money shall be delivered or disbursed by the Escrow Agent as
provided in this Contract. If either party shall declare the other party in default under this
Contract pursuant to Paragraph 15 hereof, and shall make demand (the "Demand") on Escrow
Agent for possession of the Earnest Money, said party must provide the other party-with a copy
of such Demand made upon the Escrow Agent. Except with respect to a Demand for the Earnest
Money made by Buyer prior to the Inspection Deadline, which shall be promptly honored,
Escrow Agent shall not disburse the Earnest Money in accordance with any Demand unless and
until the demanding party delivers to Escrow Agent evidence(e.g., return receipt issued by U.S.
Postal Service) of the other party's receipt of the Demand, and Escrow Agent has not received
written objection to such Demand within five(5)business days following said party's receipt of
the copy of such Demand. If any dispute or difference arises between the Buyer and Seller or if
any conflicting demands shall be made upon the Escrow Agent, the Escrow Agent shall not be
required to determine the same or to take any action thereon. Rather, the Escrow Agent may
await settlement of the controversy or deposit the escrow sums into the Registry of the Circuit
Court of Lake County, Florida, in an interpleaded action or otherwise for the purpose of having
the respective rights of the parties adjudicated. Upon making such deposit or upon institution of
such interpleaded action or other actions, the Escrow Agent shall be fully relieved and
discharged from all further obligations hereunder with respect to the sums so deposited. Buyer
acknowledges that Escrow Agent ig also serving as Seller's counsel in the transaction
contemplated by this Contract, and notwithstanding any dispute between the parties pertaining
to Escrow Agent's duties hereunder or the disbursement of the Earnest Money or for any other
reason, Escrow Agent may continue to represent Seller in this transaction and in any litigation
that may arise hereunder.
4. Title. Within fifteen (15) days of the Effective Date, Seller at Seller's expense
shall deliver to Buyer an original commitment for title insurance committing to issue an Owner's
policy to Buyer as purchaser of the Property in the amount of the Purchase Price (the "Title
Commitment"). The title company and issuing agent shall be selected by Seller. Buyer shall have
twenty (20) days from the date of Buyer's receipt of the Title Commitment to examine the
same. Buyer shall, on or before the end of said twenty (20) day period, notify Seller in writing
specifying any objections Buyer may have regarding the status of title as shown on the Title
Commitment, otherwise Buyer shall be deemed to have waived the right to any such
objections. Seller shall, within ten (10) days from receipt of Buyer's notice of objection to title,
provide a reply by written notice to Buyer (the "Reply Notice"), notifying Buyer.that (i) Seller
will not undertake to cure Buyer's title objections, or(ii) Seller will make a good faith effort to
cure Buyer's title objections within ten (10) business days of Seller's Reply Notice (the "Title
Cure Period"). Should Seller fail to deliver a Reply Notice to Buyer, Seller shall be deemed to
have elected to decline to undertake a cure of Buyer's title objections. In the event Seller declines
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to undertake a cure of Buyer's title objections, or if Seller shall not have cured the defects within
the Title Cure Period, Buyer shall have, as its sole and exclusive remedy, the option of
(i) accepting title to the Land in an "as is" condition without recourse to Seller and without a
reduction in the Purchase Price and the remaining title objections shall become Permitted
Exceptions, or (ii)terminating this Agreement and receiving a refund of the Deposit which
Escrow Agent shall forthwith return to the Buyer. Buyer's option of terminating this Agreement
and receiving a refund of the Deposit must be exercised within seven (7) days following the
earlier of: (i)the date Buyer receives the Reply Notice stating that Seller declines to cure Buyer's
title objections; or(ii) in the event Seller fails to deliver a Reply Notice, the date Seller is deemed
to have elected not to undertake Buyer's title objections; or(iii) in the event Seller elects to make
a good faith effort to cure Buyer's title objections, within five (5) days following the expiration •
of Seller's Title Cure Period. In the event Buyer does not terminate this Agreement pursuant to
this Section 5.3.1, Buyer shall be deemed to have waived any remaining uncured objections to
title and agreed to (a) accept title to the Land in an "as is" condition without a reduction in the
Purchase Price and without recourse to Seller and (b) close on the date specified in Section 8
herein.
5. Investigations and Inspections of Property. Seller shall provide Buyer with any
surveys, permits, environmental wetland reports, geotechnical studies, conceptual site plan
drawings, zoning certificates, utility certificates, easement agreements, development agreements
(whether such agreements remain in effect or have expired), together with any other documents
related to the Property, within TWENTY (20) days following the Effective Date ("Seller's
Materials"). Buyer and its architects, engineers and other agents, at Buyer's sole expense, shall
have a period of SIXTY(60)days following the delivery of Seller's Materials(hereinafter referred
to as the "Inspection Period") within which to undertake such physical inspections and other
investigations of and concerning the Property, as Buyer deems necessary in order to evaluate the
physical characteristics of the Property, as well as such other matters as shall be deemed by Buyer
to be necessary in order for Buyer to evaluate the Property and determine the feasibility of
Buyer's purchase of the same. For such purpose, Seller hereby grants to Buyer and its agents
shall have the right to enter upon the Property during the Inspection Period for the purpose of
undertaking such inspections and investigations. It is expressly provided, however, that Buyer
and any agent or assignee of Buyer who shall enter upon the Property pursuant to such right of
entry shall, as a condition to the exercise thereof, be deemed to have agreed, and does hereby
agree,to indemnify and save and hold Seller harmless from and against any and all loss,damage,
cost, expense, liability or responsibility whatsoever (including, without limitation, reasonable
attorneys' fees)which may be occasioned,directly or indirectly,by reason of the exercise of such
right of entry upon the Property, and that such indemnification shall expressly survive both the
termination of this Contract and the Closing. The foregoing indemnity shall not be subject to the
liquidated damages limitations of Paragraph 15 below. Prior to entry onto the Property, every
agent or contractor of Buyer shall deliver to Seller a certificate evidencing such agents or
contractors general public liability coverage in amounts of no less than$1,000,000 per occurrence
and $1,000,000 in the aggregate, listing Seller as an additional insured thereunder. During the
Inspection Period, Buyer may wish to secure a site plan approval and all other approvals required
to permit the development of the Property for multi-family and retail use purposes. Seller agrees
to cooperate, at no cost to Seller, in Buyer's efforts to obtain all permits, approvals and zoning
changes necessary for such development of the Property, and upon written request of Buyer,
Seller shall execute or join with Buyer in the execution of such applications and submittals as
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may be required for Buyer to obtain permits and approvals from applicable governmental
authorities with respect to Buyer's contemplated development of the Property;provided that such
efforts do not in any way diminish the value of the Property, cause Seller to incur any expense or
require Seller to do anything other than execute the documents. Provided that any request by
Buyer is consistent with the foregoing, Seller shall execute and return to Buyer all applications
and submittals within a reasonable period following receipt of such applications and submittals
together with written request by Buyer for the execution thereof, without charge by Seller. In
the event that Buyer terminates this Contract, Buyer shall provide Seller with copies of all
documents, testing, opinions, reports, results, applications, permits and the like furnished to, or
obtained by any person or entity by any party after execution of this Contract, but Buyer makes
no warranties or representations regarding any such documents,opinions,testing,reports,results,
. applications, permits and the like.
6. Unacceptability of Inspections. In the event that the results of the inspections,
investigations, reviews, feasibility studies and Seller approvals to which reference is made in
Paragraph 5 above are, in Buyer's sole opinion and within Buyer's sole discretion, unacceptable
to Buyer for any reason whatsoever, and Buyer so notifies Seller of the fact on or before the
expiration of the Inspection Period provided in Paragraph 5 hereof, then at Buyer's option and
upon Buyer's request, Buyer may terminate the Contract and all payments or deposits, including
accrued interest, if applicable, made by Buyer shall be immediately returned to Buyer as Buyer's
sole property. Provided, however, that in the event that Buyer elects to terminate this Contract
for any reason other then default by Seller, the Earnest Money Deposit shall become the property
of Seller and shall immediately be disbursed by Escrow Agent to Seller. If the Contract is
terminated by Buyer hereunder, it shall be rendered null and void, and be of no further force and
effect and all parties hereto shall thereupon be relieved and absolved of any further liabilities or
obligations whatsoever to each other hereunder, except with respect to those liabilities or
obligations hereunder which are expressly stated to survive the termination of this Contract,
including, without limitation, Buyer's indemnity set forth in Paragraph 5 above. The failure of
the Buyer to notify Seller of the unacceptability of any such inspections, investigations, reviews
and feasibility studies prior to the expiration of the Inspection Period shall constitute a waiver of
Buyer's right to terminate this Contract. In the event of termination by Buyer pursuant to this
Section, Buyer shall provide to Seller, at no expense, copies of all plans, studies and information
obtained or prepared by Buyer with regard to Buyer's Intended Use (hereafter defined) and
related to the Property; provided, Buyer does not warrant the completeness or accuracy of such
materials.
• 7. Conveyance of Property. At Closing, Seller shall deliver to Buyer: (i) a duly
executed Special Warranty Deed in recordable form conveying fee simple title to the Property
free and clear of all liens, encumbrances and exceptions except for the exceptions approved or
deemed approved by Buyer ("Permitted Exceptions"); (ii) an affidavit from Seller certified to
Buyer and to the title company in form required by the title company to delete from Buyer's title
insurance policy all standard exceptions for construction liens and parties in possession
exceptions and any other standard exceptions the title company may delete based on Seller's •
affidavit; (iii) a certification by Seller which indicates that Seller is not a foreign person as
defined in the Internal Revenue Code; (iv) written affirmation that the representations and
warranties set forth in Paragraph 12 hereof remain true at the time of Closing; (v) a duly
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executed closing statement; (vii) such documents as the title company requires in order to
evidence the authority and good standing of Seller to complete this transaction; and (viii)other
documents reasonably required by Buyer or the title company in order to consummate the
transaction contemplated herein. At Closing, Buyer shall pay to Seller the Purchase Price of the
Property described above, subject to adjustments and proration set forth herein and shall deliver
to Seller: (ix) a duly executed closing statement; (x) written affirmation that the representations
and warranties set forth in Paragraph 13 remain true at the time of Closing; and (xi) other
documents reasonably required by Seller or the title company in order to consummate the
transaction contemplated herein.
8. Closing.
A. - The sale and purchase transaction contemplated in this Contract shall be closed and the
aforesaid closing documents delivered on or before the expiration of thirty (30) days from the
expiration of the Investigation and Inspection Period unless terminated as provided in paragraph
6 (the"Closing Date").
B. The Closing shall be completed by a closing agent or attorney as selected by Seller and
shall take place at Clermont City Hall, in Lake County, or by express mail, and at such time as
mutually agreed upon between Buyer and Seller.
9. Closing Costs. The Seller shall pay for state documentary stamps as may be
required to be affixed to the Special Warranty Deed, the premium for the owner's title insurance •
policy to be issued pursuant to the Title Commitment, the cost of recording any and all other
documents necessary to deliver good and clear title, and any document preparation fees. Buyer •
shall pay the cost of recording the Special Warranty Deed and any and all costs associated with
the recording of any note, mortgage and security agreement contemplated herein. Buyer and
Seller shall each bear its own attorneys' fees.
10. Possession. Possession of the Property shall be delivered by Seller to Buyer at
the time of Closing hereunder, subject to the Permitted Exceptions. Prior to Closing and the
delivery of possession as aforesaid, Seller shall remain the owner of the Property and shall bear
the risk of all loss of whatever nature, except as provided in Paragraph 5 hereof with respect to
loss occasioned as a result of Buyer's inspections and investigations of the Property. In the
event that prior to Closing all or a portion of the Property being acquired is condemned or
condemnation proceedings have been instituted for any public or quasipublic use or purpose,
then Buyer shall have the option to terminate this Contract, in which event the payments
previously made by Buyer to Seller shall be returned to Buyer, this Contract shall be deemed
null and void and Buyer and Seller shall be relieved from all liabilities and responsibilities
hereunder except as specifically provided otherwise herein.
11. Proration. Ad valorem real and personal property taxes, if any, or assessments of
any kind for the year of closing shall be prorated as of the date of closing. If, however, the
amount of such taxes or assessments for the year of closing cannot be ascertained, the rates,
millages and assessed valuations for the previous year, with known changes and utilizing full
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discounts, shall be used as an estimate, and tax proration based on such estimate shall be
readjusted by the Buyer and Seller when the actual tax bills for the year of sale are received,
which obligation shall expressly survive closing for a period of twelve(12) months.
12. Representations, Obligations and Warranties of Seller. Except for the
representations and warranties in this Paragraph 12, Seller makes no representations or
warranties to Buyer and shall convey the Property 'AS IS, WHERE IS, WITH ALL FAULTS."
Buyer shall, by closing on the Property, be deemed to have acknowledged that Buyer has relied
solely upon its own inspections and investigations to determine the physical condition of the
Property and its suitability for Buyer's purposes. Seller represents and warrants (which
warranties shall survive the closing hereunder) to the Buyer that:
A. Seller has not received written notice from any governmental or quasigovernmental body
or agency or from any person or entity with respect to any actual or threatened taking of the •
Property or any portion thereof for any public or quasi-public purpose by the exercise of the
right of condemnation or eminent domain, nor does Seller have any current, actual knowledge
of any such actual or threatened taking. Further, Seller has not received any actual notice of any
existing or threatened lawsuit by which any party claims an interest in the Property.
B. Seller has not received any written notices from any city, county, state or other
governmental authority or other person or entity of violations of any statute, law, or ordinance,
or governmental rule or regulation in respect of the Property
•
C. Seller owns fee simple title to the Property and has the full power, right and authority,
and is duly authorized, to enter into this Contract, to perform each and all of the matters and acts
herein provided, and to execute and deliver all documents provided hereunder.
D. There is no tenant of the Property or any other person or entity having any right or claim
to possession or use of the Property. Possession of the Property shall be delivered to Buyer by
Seller free of rights or claims of any tenants, occupants or parties in possession, except for the
rights of parties pursuant to the Permitted Exceptions or as may otherwise be disclosed in the
Commitment.
E. To Seller's present, actual knowledge, without any investigation whatsoever, there has
not been and there is not now: (i) any presence of any Hazardous Substances (as hereinafter
defined) on, over, under or around the Property in violation of applicable law; (ii) any present
or past generation, recycling, use, reuse, sale, storage, handling,transport and/or disposal of any
Hazardous Substances on, over, under or around the Property in violation of applicable law; (iii)
any failure to comply with any applicable local, state or federal environmental laws; (iv) any
spills, releases, discharges or disposal of Hazardous Substances that have occurred or are
presently occurring on or onto the Property or any adjacent properties in violation of applicable
law; or (v) any spills or disposal of Hazardous Substances that have occurred or are presently
occurring off the Property as a result of any construction or operation and use of the Property in
violation of applicable law. For purposes of this Paragraph 13,the term "Hazardous Substances"
means and includes, without limitation, any toxic or hazardous substances or materials,
petroleum or other pollutants and substances, whether or not naturally occurring, including,
6 •
without limitation, asbestos, radon, and methane gas, generated, treated, stored or disposed of,
or otherwise deposited in or located on or under the Property, and also includes, without
limitation, the surface and subsurface waters of the Property, and any activity undertaken or
hereafter undertaken on the Property which would cause: (i)the Property to become a hazardous
waste treatment, storage or disposal facility within the meaning of, or otherwise bring the
Property within the ambit of, the Resource Conservation and Recovery Act of 1976 ("RCRA"),
42 U.S.C. 6901 et seq., or any similar state law or local ordinance; (ii) a release or threatened
release of hazardous waste from the Property within the ambit of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
96019657, or any similar state law or local ordinance or any other environmental law; (iii) the
discharge of pollutants or effluent into any water source or system, or the discharge into the air
of any emissions which would require a permit under the Federal Water Pollution Control Act,
33 U.S.C. 1251 et seq., or the Clean Air Act, 42 U.S.C. 7401 et seq., or any similar state law or
local ordinance; or (iv) any substances or conditions in, on or under the Property which may
support a claim or cause of action under RCRA, CERCLA or any other federal, state or local
environmental statutes, regulations, ordinances or other environmental regulatory requirement,
including the presence of any underground storage tanks or underground deposits located on the
Property.
F. Seller, to the best of Seller's knowledge, has received no written notice of any existing
or pending special assessments affecting the Property which may be assessed by any
governmental authority, water or sewer authority, drainage district or any other special taxing
district or other entity.
G. Other then as may be set forth herein, there is no litigation or legal proceeding pending
or to Seller's present, actual knowledge threatened which relates to or affects the Property or
which would impair or otherwise adversely affect this Contract, Seller's performance hereunder
and/or Buyer's use of the Property for the Intended Use. Buyer is specifically advised and does
hereby acknowledged that Seller has negotiated a settlement with Dennison and Rebecca Wi of
a dispute related to an unauthorized encroachment on the property owned by Seller whereby,
the encroachment will be eliminated prior to Closing hereunder.
H. Seller has not entered into any other contracts, agreements or understandings, verbal
contracts or agreements, oral or written, for the sale or transfer of any portion of the Property,
other than as set forth herein.
I. Seller has not made any commitments to any governmental unit or agency, utility
company, authority, school board, church or other religious body, or to any other organization,
group or individual relating to the Property which would impose any obligations upon Buyer to
make any contributions of money or land or to install or maintain any improvements, except as
may be set forth in the Commitment.
J. To Seller's present, actual knowledge, without any investigation whatsoever, the
Property has not been registered or certified as "historic" by any local, state or federal
governmental entity or historic commission. •
•
K. To Seller's present, actual knowledge, neither the execution and delivery of this
Contract, nor compliance with the terms and conditions of this Contract by Seller, nor the
consummation of the sale, constitutes or will constitute a violation or breach of any agreement
or other instrument to which it is a party, to which it is subject or by which it is bound.
L. For purposes of this Paragraph 12, the term "to Seller's knowledge" or words of similar
import shall mean the current conscious awareness of facts or other information of the Seller, its
officers, agents and employees, without any inquiry or investigation whatsoever, all of whom
are acting solely in their capacity as officers, agents or employees of Seller or an affiliate of
Seller and are in no manner expressly or impliedly making any of these representations in an
individual capacity. The statements and representations of Seller set forth in this contract shall
be true and reaffirmed in writing at the Closing and shall survive the Closing.
M. If, after the Effective Date, any event occurs or condition exists of which Seller has
knowledge or about which Seller receives information which renders any of the representations
contained herein untrue or misleading, Seller shall promptly notify Buyer in writing and Buyer,
as Buyer's sole and exclusive remedy, shall thereafter have the option to terminate this Contract
within thirty (30) calendar days of receipt of Buyer's written notice. In the event of such
termination, Escrow Agent shall disburse the Earnest Money Deposit (or the portion thereof
prior to closing,theretofore deposited with Escrow Agent),to Buyer in which event all payments
made by Buyer to Seller shall remain the sole property of Buyer, this Contract shall be deemed
null and void and Buyer and Seller shall be relieved from all liabilities and responsibilities
hereunder except as specifically provided otherwise herein, including, without limitation, those
set forth in Paragraph 6 above.
N. Upon termination of the Temporary Construction Easement described in Section 13.C.
below, Seller, at its sole cost will fill the retention pond on the Property to the top of its banks,
remove existing stormwater infrastructure and provide a stormwater connection.
13. Representations, Acknowledgments and Warranties of Buyer. Buyer represents,
acknowledges and warrants to Seller that:
A. Buyer has the power, right and authority, and is duly authorized, to enter into this
Contract, to perform each and all of the matters and acts herein provided, and to execute and
deliver all documents provided hereunder.
B. To the best of Buyer's knowledge, neither the execution and delivery of this Contract,
nor the compliance with the terms and conditions of this Contract by Buyer, nor the
consummation of the sale, constitutes or will constitute a violation or breach of any agreement
or other instrument to which it is a party, to which it is subject or by which it is bound.
C. Buyer shall at Closing deliver to Seller a Temporary Construction Easement granting to
Seller, its contractors, subcontractors and assigns, the right to use the Property for staging,
storage and maintenance of a construction trailer, and ingress and egress thereto, as part of
Seller's project related to the construction of public improvements adjacent to and near the
Property. The Temporary Construction Easement shall be in effect until July 1, 2018 or until
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such time as Buyer has received permits for the development and construction of improvements
on the Property, whichever is later. At closing, the Buyer shall execute and deliver to Seller a
Temporary Construction Easement substantially in the format attached hereto and incorporated
herein as Exhibit"B".
14. Default. In the event that Buyer fails to perform any of the covenants of this
Contract on its part to be performed, subject to the title, survey and inspection periods set forth
in Paragraphs 4 and 5, or refuses to perform its obligations under this Contract and such failure
or refusal is not cured within ten (10) days after Notice from Seller the Earnest Money Deposit
shall become the sole property of Seller. Seller's retention of the deposit shall constitute
liquidated damages and be Seller's sole remedy for any breach of this Contract by Buyer(except
to the extent that Buyer damages Seller's Property), it being agreed that (i) the deposit and any
interest earned thereon is a reasonable estimate of and bears a reasonable relationship to the
damages that would be suffered and costs incurred by Seller as a result of having withdrawn the
Property from sale and the failure of closing to occur due to a default of Buyer under this
Contract; (ii) the actual damages suffered and costs incurred by Seller as a result of such
withdrawal and failure to close due to a default of Buyer under this Contract would be extremely
difficult and impractical to determine; (iii) Buyer seeks to limit its liability under this Contract
to the amount of the payments made, and to be made, and any interest earned thereon if this
Contract is terminated and the transaction contemplated by this Contract does not close due to a
default of Buyer under this Contract; and (iv) such amount shall be and constitute valid
liquidated damages. Notwithstanding the foregoing, the indemnity provisions contained in
Paragraph 5 shall not be subject to the foregoing liquidated damages provisions. If Seller fails
to perform any of the covenants of this Contract on its part to be performed or refuses to perform
its obligations under this Contract and such failure or refusal is not cured within twenty (20)
days after Notice from Buyer, Buyer may at its option: (i) terminate this Contract whereupon
the payments made by Buyer to Seller shall be returned and Seller shall be released and relieved
of all obligations or liabilities under this Contract; or (ii) proceed in equity in an action for
specific performance to enforce its rights under this Contract, or if specific performance is not
an available remedy, then an action for damages and any other remedies available at law, or in
equity.
15. Assignability. Buyer may not assign its interest herein without the prior written
consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed.
Provided, however, Buyer shall be permitted to assign this Contract to a limited liability company
or other entity established by Buyer for purposes of receiving Title to the subject property. Said
assignment shall not relieve or release Buyer of any obligations or liability hereunder. Buyer shall
notify Seller as soon as practical and no latter then thirty (30) days prior to closing of the name
and address of said entity and the name of the representative thereof who is authorized to
complete the Closing. Seller may, in its sole discretion, assign any and all rights and obligations
hereunder, provided Seller shall remain liable for an action for damages and any other remedies
available at law, or in equity, in the event Buyer is unable to pursue an action for specific
performance following a default by Seller. Any assignment shall be in writing and a copy of such
assignment executed by both assignor and assignee shall be delivered to Buyer or Seller, as the
case may be.
9
16. Litigation and Attorneys' Fees. In the event it shall be necessary for either party
to this Contract to bring suit to enforce any provision hereof or for damages on account of any
breach of this Contract or of any warranty, covenant, condition, requirement or obligation.
contained herein, the prevailing party in any such litigation, including appeals, shall be entitled
to recover from the other party, in addition to any damages or other relief granted as a result of
such litigation, all costs and expenses of such litigation and a reasonable attorneys' fee as fixed
by the Court.
17. Survival of Provisions. The provisions of this Contract shall not survive the
closing hereunder except as expressly provided elsewhere in this Contract.
18. Time of Essence. It is expressly agreed by both the Seller and Buyer that time is
of the essence of this Contract and in the performance of all conditions, covenants, requirements,
obligations and warranties to be performed or satisfied by the parties hereto. Waiver of
performance or satisfaction of timely performance or satisfaction of any condition, covenant,
requirement, obligation or warranty by one party shall not be deemed to be a waiver of the
performance or satisfaction of any other condition, covenant,requirement,obligation or warranty
unless specifically consented to in writing. Unless otherwise expressly provided herein, all
periods for performance, approval, delivery or review and the like shall be determined on a
"calendar" day basis. If any day for performance, approval, delivery or review shall fall on a
Saturday, Sunday or legal holiday, the time therefore shall be extended to the next business day.
19. Notices. Any notice or other communication permitted or required to be given
hereunder by one party to the other shall be in writing, shall be effective upon receipt and shall
be delivered by registered or certified United Sates Mail, postage prepaid, return receipt
requested, or electronic mail, with acknowledgment of receipt upon transmission (provided that
if notice is sent by electronic mail, it must also be sent by one of the other methods of delivery
specified herein), to the party entitled or required to receive the same, as follows:
TO SELLER: City of Clermont
685 West Montrose Street
Clermont, FL 34711
Attn.: Darren Gray,
City Manager
WITH A REQUIRED de Beaubien Knight, Simmons, Mantzaris
COPY TO: Neal, LLP
332 North Magnolia Avenue •
Orlando, Florida 32801
Attention: Daniel F. Mantzaris, Esquire
Phone: (407) 422-2454
Fax: (407) 992-3541
e-mail: dmantzaris@dsklawgroup.com
10
•
TO BUYER: Graff Development, LLC
1200 Oakley Seaver Drive
Suite 203
Clermont, FL 34711
Attn.: Mark J. Graff
WITH A COPY TO: Gasdick Stanton Early, P.A.
Attn: Michael J. Gasdick
1600 W. Colonial Drive
. Orlando, FL 32804
Phone: (407) 423-5203
Fax: (407)425-4105
email: mick@gse-law.com
20. Governing Law and Binding Effect. This Contract and the interpretation and
enforcement of the same shall be governed by and construed in accordance with the laws of the
State of Florida and shall be binding upon,inure to the benefit of, and be enforceable by the parties
hereto as well as their respective heirs, personal representatives, successors and assigns.
21. Integrated Contract, Waiver and Modification. This Contract represents the
complete and entire understanding and agreement between the parties hereto with regard,to all
matters involved in this transaction and supersedes any and all prior or contemporaneous
agreements,whether written or oral.No agreements or provisions,unless incorporated herein,shall
be binding on either party hereto. This Contract may not be modified or amended nor may any
covenant, agreement, condition, requirement, provision, warranty or obligation contained herein
be waived, except in writing signed by both parties or, in the event that such modification,
amendment or waiver is for the benefit of one of the parties hereto and to the detriment of the
other, then the same must be in writing signed by the party to whose detriment the modification,
amendment or waiver inures.
22. Brokerage. Seller and Buyer acknowledge and agree no agent or broker has acted
on behalf of Seller or Buyer. The Seller and Buyer agree to indemnify, defend and hold the other
harmless from and against any commissions or fees or claims for commissions or fees arising
under the indemnifying party, which indemnification shall expressly survive the termination of
this Contract and the closing of the sale and purchase of the Property contemplated by this
Contract. .
23. Joinder of Escrow Agent. Daniel F. Mantzaris, Esq. at deBeaubien, Simmons,
Knight, Mantzaris & Neal, LLP,joins in the execution of this Contract for the express purpose of
agreeing and • acknowledging the terms and conditions related to the retention and
disbursement of the Earnest Money Deposit funds herein.
11
•
.
•
24. Effective Date. The "Effective Date"of this Contract shall be the date upon which
this Contract is last signed by Seller and Buyer.
25. • Counterparts. This Contract may be executed in counterparts by the parties hereto
and each shall be considered an original, but all such counterparts shall be construed together and
.constitute one Contract between the parties hereto.
26. Interpretation. Seller and Buyer,acknowledge each to the other that both they and
their counsel have reviewed this Contract and that the normal rules of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Contract or any Exhibits hereto.'
27. PDF. PDF copies of this Contract executed by Seller or Buyer shall operate as
and may be relied upon as an original signature.
IN WITNESS WHEREOF, Seller and Buyer have each caused this Contract for Sale
and Purchase to be executed as of dates set forth below.
SELLER:
City of Clermont
6/
Ait •
1J
Tracy Ackroyd Howe Clerk Mayor it As
Date: to a`J nZD/ 7
BUYER:
Witnesses: Graff Development, LLC
By ._I \
Mark J. raff /
Title: Man er
Name i Ra'a Date: 1/(7
Escrow Agent:
e
Manua
Manua �. :
By: Lf��S
Dante - antzaris
Date: 7/Zc//2
12 •
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EXHIBIT"B"
--- - -- - - .TEMPORARY CONSTRUCTION EASEMENT
THIS TEMPORARY EASEMENT AGREEMENT made and entered into this .
day of 2017, by and between ' .ff Development, LLC,
(hereinafter referred to as "GRANTOR"), and the City of Cl- • .n 685 West Montrose Street,
Clermont, Florida 34711 (hereinafter referred to as "GRANTE. ")
WITNESSETH:
WHEREAS, GRANTEE has demonstrated to ' £ NTOR an -. redia -ed for a
temporary easement for public use for the . - •. : of e • cting or r: o t ting public
improvements adjacent to or near the subjec .r. . -
NOW, THEREFORE, for and '• con -• - -tion .f the mu .dy.ntages inuring each
party to the other, and other valuable o.s' eratio•s, '• 1 1 ing the consideration set forth in that
certain purchase and sale agreement b: :-n e p. 'e- dated , 2017, the receipt of
which are hereby acknowledged, G • ' doe h: eby grant to the GRANTEE, its
contractors, subcontractors : • assigns, . t: pe . s con ;potion easement for construction of
public improvements and - _ . of in a -s an. a ess o'er and across the real property as
indicated in Attachment `A';
1. The GRA hereby civ- 'ants : id .u ees that it shall at all times operate the
temporary -: - ' such a -.a er so a to minimize any disruptions to GRANTOR'S
use of GRA OR ' 'ning -a .roperty. In the event the GRANTEE shall alter,
•.s. •, or d- ate . . •R'S adjoining real property in the course of its
ilization of t e c • sorary-anstruction easement, GRANTEE will restore the
f ' NTOR'S pr. .c y, including any improvements thereon to its prior existing
II ion.
2. To the extent p- ttes by law, the GRANTEE hereby indemnifies, and agrees to hold
GRANTOR h- • l•ss from and against any and all claims, demands, costs, judgments,
and amoun • : soever suffered by GRANTOR by virtue of GRANTEE'S negligence
in the use or maintenance of the temporary construction easement.
3. Nothing herein shall be construed to constitute a waiver of the GRANTEE'S sovereign
immunity as set forth in Florida Statutes, Chapter 768.
TO HAVE AND TO HOLD said temporary construction easement and right of entry
unto GRANTEE, and its successors and assigns, for the time period beginning August 8, 2017
through July 1, 2018, or suck time as GRANTOR has received permits for the development and
construction of improvements on the subject property, whichever is later.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly
executed. - ..
GRANTOR:.
signed, sealed and delivered in the presence of:
• By:
(Print Name) Print Name 1Se'
Address:
(Print Name)
(Print Name) Pri 11
dres
(Print Name) •
•
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ATTACHMENT 'A'
TEMPORARY CONSTRUCTION EASEMENT