R-2017-31 (2) CITY OF CLERMONT
RESOLUTION NO. 2017-31
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CLERMONT, LAKE COUNTY, FLORIDA, AUTHORIZING THE
PURCHASE OF 18 ACRES OF CERTAIN REAL PROPERTY
LOCATED IN LAKE COUNTY, FLORIDA FROM JOHN KINGMAN
KEATING, TONY H. ROPER, BERT E. ROPER AND BARBARA C.
ROPER FAMILY LIMITED PARTNERSHIP FOR THE PURCHASE
PRICE OF $1.8 MILLION, 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 John Kingman Keating, Tony H. Roper, and Bert E. Roper & Barbara C. Roper
Family Limited Partnership in the amount of $1.8 million 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.
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CITY OF CLERMONT
RESOLUTION NO. 2017-31
PASSED AND ADOPTED by the City Council of the City of Clermont, Lake County,
Florida on this 27th day of June, 2017.
CITY OF CLERMONT
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Gail L. Ash, Mayor
ATTEST:
Tracy Ackroyd Howe, City Clerk
APPROVED AS TO FORM AND LEGALITY:
.fan •rney
FIRST AMENDMENT TO CONTRACT FOR SALE AND PURCHASE
THIS FIRST AMENDMENT TO CONTRACT FOR SALE AND PURCHASE (the "First
Amendment") is made and entered into effective as of the 'f day of January, 2018,by and between John
Kingman Keating, as Trustee of the Hancock Road Land Trust,Tony H.Roper and Bert E.Roper and
Barbara C.Roper Family Limited Liability Limited Partnership (collectively,the"Seller") and The City
of Clermont,a Florida municipal corporation(the"Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer have previously executed that certain Contract for Sale and Purchase
dated the 1 u day of August,2017(the"Contract")for the sale and purchase of a parcel of real property located
in Lake County,Florida and more particularly described in the Contract(the"Property");
WHEREAS, Seller and Buyer desire to further amend and modify the terms and conditions of the
Contract by the execution of this First Amendment.
NOW THEREFORE, Seller and Buyer in consideration of the mutual promises and obligations
herein contained hereby agree to modify the terms and conditions of the Contract as follows:
Section 1. Extension of Inspection Period. The Seller and Buyer hereby agree that the end of the
Inspection Period shall be extended from November 29,2017 to February 28,2018.The Closing Date shall be
similarly extended to March 30,2018.
Section 2. Easement and Access Declaration. During the initial Inspection Period, the parties have been
engaged in the discussion and negotiation of the Easement and Access Declaration,the scope,terms and conditions
of which will be adjusted beyond those provisions listed in Section 6 of the Contract to include,without limitation,
provisions relating to joint and cooperative development of the Property and balance of the Parent Parcel,right of
way dedication, and ongoing maintenance and cost sharing of improvements and utilities, among other items. The
Seller and Buyer shall have until the end of the extended Inspection Period to agree on the exact terms and
conditions of the Easement and Access Declaration (which will be renamed to reflect its adjusted scope), in their
sole and absolute discretion.In the event the Seller and Buyer cannot agree on the final terms and conditions of the
Easement and Access Declaration on or before the end of the extended Inspection Period, then either party shall
have the right to terminate the Contract,by delivering written notice to the other party in which event the Escrow
Deposit shall be returned to the Buyer and all rights, interests and obligations arising hereunder shall cease and
terminate,except those which are intended to survive such termination.
Section 3. Annexation.The Parent Parcel shall not be annexed into Buyer's municipal boundaries until the
terms and conditions of the contemplated PD ordinance and zoning, land use and other classifications and
designations to be applicable to the Parent Parcel upon annexation shall have been finalized and approved by the
Seller.
Section 4. Method of Execution and Acceptance; Counterparts. All parties hereto may demonstrate their
execution and acceptance of this First Amendment by transmitting to the other parties (or their legal counsel) by
email or facsimile machine a copy of this First Amendment on which the transmitting party's signature appears.
Such an email or facsimile, once received by the other parties (or their legal counsel), shall bind the transmitting
party to the same extent as would delivery of this First Amendment or a counterpart hereof containing that party's
actual signature. This First Amendment may be executed in as many counterparts as may be required, and it shall
not be necessary that the signature of each party appear on each counterpart.It shall be sufficient that the signature
of each party appear on at least one counterpart in order for this First Amendment to bind all parties. All
counterparts shall collectively constitute and be deemed a single agreement and each counterpart shall be and be
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taken to be an original.
Section 5. Reaffirmation: Defined Terms. Except as expressly amended or modified by this First
Amendment, all other terms and conditions of the Contract remain in full force and effect, is hereby ratified and
affirmed, and the parties hereto confirm and agree that there is currently no default under the Contract by either
party.To the extent of any inconsistency between this First Amendment and the Contract,the terms and conditions
of this First Amendment shall control and govern. All capitalized terms used in this First Amendment and not
otherwise defined in this First Amendment shall have their same respective meanings as defined in the Contract.
IBALANCE OF PAGE INTENTIONALLY LEFT BLANK-
SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF,the parties hereto have caused this First Amendment to Contract for Sale
and Purchase to be executed and effective as of the date first set forth above.
SELLER BUYER
JOHN KLNGMAN KEATING,AS TRUSTEE OF THE CITY OF CLERMONT,a Florida municipal
THE HANCOCK ROAD LAND TRUST Co w .:tion t
By: /Li
D: .r •y
John Kingman Keating,as Trustee As its City Manager
A
TONY H.ROPER
Attest
/
By.
- `7e( / , Tracy Ackroyd,City Clerk
Tony H Roper di
TONY H. ROPER, AS SUCCESSOR TRUSTEE
UNDER THE ELIZABETH TROTTER ROPER
DECLARATION OF TRUST DATED JANUARY
24,2005 '
„mow
Tony H.Roper, ..:.sor Trustee
BERT E. ROPER AND BARBARA C. ROPER
FAMILY LIMITED LIABILITY LIMITED
PARTNERSHIP
By.
Charles F.Roper
As its General Partner
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KEATING Mill
ATTORNEYS AT LAW
250 East Colonial Drive, Suite 300
Orlando, Florida 32801
Telephone:407-425-2907
Facsimile:407-425-6345
www.keatlaw.com
January 30, 2018
VIA FEDERAL EXPRESS
Ms. Carly Zinker
City of Clermont
685 W. Montrose Street
Clermont, Florida 34711
RE: Contract for Sale and Purchase dated August 1, 2017 by and between The City of
Clermont, as buyer, and John Kingman Keating, as Trustee, et. al., as seller
Dear Carly:
Pursuant to our telephone conversation, enclosed herein please find an original Contract for Sale
and Purchase for your records in connection with referenced transaction.
If you have any questions regarding this matter, please do not hesitate to contact me at 407-206-
9424 or awindmillert keatlaw.com.
Very truly yours,
•
Amy Windmiller
Paralegal
/aw
Enclosure
CONTRACT FOR SALE AND PURCHASE
THIS CONTRACT FOR,SALE AND PURCHASE (the "Contract") is made and
entered into on the I day of y 2017, by and between The CITY OF CLERMONT, a
Florida municipal corporation, whose address is 685 West Montrose Street, Clermont, Florida
("Buyer") and John Kingman Keating, as Trustee of the Hancock Road Land Trust, Tony H.
Roper, and Bert E. Roper and Barbara C. Roper Family Limited Liability Limited Partnership,
whose address is c/o 250 East Colonial Drive, Suite 300. Orlando, Florida 32801 (collectively
the "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. The real property that is to be sold and conveyed by Seller
and purchased and accepted by Buyer pursuant to this Contract consists of approximately
eighteen (18) acres of land located on Hancock Road in Lake County, Florida and comprising a
portion of Lake County Tax Identification Parcel Number 34-22-26-0002-000-00101. with Alt
Key Number 1593093, together with all tenements. hereditaments. rights, privileges and
easements thereunto belonging (hereinafter together referred to as the "Property"). The Property
is a portion of a larger parcel of real property owned by the Seller (the "Parent Parcel") and
Seller shall retain portion of the Parent Parcel outside of the Property (the "Retained Parcel"). A
portion of the northeast corner of the Parent Parcel shall be used as a master
drainage/retention/detention area (the "Master Drainage Area") which shall serve the Property
and the balance of the Parent Parcel. The approximate boundaries and dimensions of the
Property, Parent Parcel, Retained Parcel and Master Drainage Area are as set forth on the
depiction attached hereto as Exhibit "A" (the "Sketch"), and the final dimensions and legal
description of the Property shall be determined upon the approval of both the Seller and Buyer of
the Survey and legal descriptions contained therein to be obtained by the Buyer during the
Inspection Period (as hereinafter defined) and as provided in Section 5. At the option of the
Seller. Seller may retain ownership of the portion of the Master Drainage Area which Buyer is
otherwise intended to purchase hereunder, provided Buyer's rights, interests and use of the
Master Drainage Area are set forth in the Easement and Access Declaration (as hereinafter
defined). It is the intention of the Seller and Buyer that the cost of the portion of the Master
Drainage Area for which the Buyer shall pay. the cost of the construction of the joint access
driveway, transportation improvements, lift station and other shared improvements, all as set
forth in the Easement and Access Declaration (as hereinafter defined) which is to be negotiated,
shall be proportionately allocated between the Seller and Buyer in accordance with the acreage
which each shall own west of the utilities easement located on the Parent Parcel. The Seller's
Proportionate Share shall be a fraction the numerator of which shall be the net acreage in the
Retained Parcel west of the utilities easement and the denominator of which shall be all of the
Parent Parcel acreage west of the utilities easement. The Buyer's Proportionate Share shall be a
fraction the numerator of which shall be the net acreage in the Property west of the utilities
easement and the denominator of which shall be all of the Parent Parcel acreage west of the
utilities easement. The foregoing shall be agreed upon by the Seller and Buyer during the
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Inspection Period.
2. Contract to Sell and Option to Purchase. Seller hereby agrees to sell and convey and
Buyer hereby agrees to accept an option to purchase and accept the Property upon the terms and
subject to the conditions set forth in this Contract.The option contained herein shall be subject to
and contingent upon the approval of the City Council of the City of Clermont of the terms and
conditions contained herein. Subject to the satisfaction of all of Seller's Conditions Precedent,
Seller's agreement to sell shall be deemed an irrevocable offer to sell the Property for a period of
thirty (30) days from the date of Seller's execution of this Contract. If the Contract is approved
by the City Council of the City of Clermont and executed by the Mayor, or his designee, on or
before the expiration of thirty (30) days from the date of execution by the Seller, then this
Contract shall be binding on the parties in accordance with its terms and conditions and the
Effective Date shall be the date of execution of the Contract by the Mayor or his designee. If this
option Contract is not timely approved and executed as provided above, then the option shall
terminate without consequence or obligation to either party.
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 Million Eight Hundred Thousand Dollars ($1,800,000.00), based upon an assumed
approximately eighteen (18.00) gross acres at a price of One Hundred Thousand Dollars
($100,000.00) per gross acre. The foregoing approximately eighteen (18) acres are intended to
include the Buyer's purchase of the equivalent of approximately three(3)acres within the Master
Drainage Area. In the event the Survey of the Property, as contemplated in Section 5 and as
approved by both Seller and Buyer, establishes a total gross acreage of less or more gross acres
as rounded to the one hundredth (100`h) of a gross acre, the Purchase Price will be adjusted at
Closing to reflect a Purchase Price that is One Hundred Thousand Dollars ($100,000.00) per
gross acre.Notwithstanding Seller's retention of ownership of the Master Drainage Area, and the
required execution of the Easement and Access Declaration, the Buyer shall pay to Seller One
Hundred Thousand Dollars ($100,000.00) per gross acre of the Master Drainage Area which is
allocated to the Property, based on the agreement of both Seller and Buyer. Within five (5) days
of the Effective Date, the sum of Fifteen Thousand Dollars ($15,000.00) (the "Escrow Deposit")
shall be deposited in escrow to be held by the law firm of DeBeaubien, Simmons, Knight,
Mantzaris & Neal, LLP (the "Escrow Agent") subject to the terms and conditions hereof. Upon
compliance with all of the terms and conditions of this Contract, the balance of the Purchase
Price shall be paid by Buyer and the Escrow Agent to Seller in United States funds by wire
transfer at the time of Closing.
4. Title and Survey.
(a) Title Commitment. Within fifteen (15) days after the Effective Date the Seller shall,
at Seller's cost,deliver or caused to be delivered to the Buyer a standard owner's preliminary title
commitment (the "Title Commitment") issued by a title underwriter (the "Title Insurer"), in the
amount of the Purchase Price, describing the Property, showing the Buyer as the proposed
insured, contain the commitment of the Title Insurer to insure Buyer's fee simple interest in the
Property upon the Closing, and show that title to the Property is good and marketable and
insurable subject only to those liens, encumbrances, exceptions or qualifications which are
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permitted as set forth in this Contract; and which shall have legible copies of all documents of
record referred to in the Title Commitment as exceptions to title to the Property.
(b) Survey. Seller shall provide Buyer with a copy of the existing survey of the Property
(including additional land previously sold by Seller) and Seller shall obtain a new and updated
boundary and topographical survey (the "Survey") of the Parent Parcel, and the component
parcels, from a surveyor selected by Seller in its sole discretion (the "Surveyor"), which Survey
shall depict: (i) the dimensions and acreage of the Property, Parent Parcel, Retained Parcel,
Master Drainage Area, Access Driveway, and all utility and other easements either in place or
contemplated by this Contract, and such other information or matters as the parties shall
reasonably determine. The Surveyor shall be required to deliver paper and digital files of the
Survey in pdf and CAD format to both Buyer and Seller. The Survey shall be reasonably
acceptable to both the Seller and Buyer and the Seller and Buyer shall agree on the dimensions,
acreage and location of the Property, Parent Parcel, Retained Parcel, Master Drainage Area,
Access Driveway, and all utility and other easements either in place or contemplated by this
Contract. The Surveyor shall make such revisions and adjustments to the Survey as shall be
required based on the agreement of the Seller and Buyer. The Buyer shall reimburse to Seller the
Buyer's Proportionate Share of the cost of the Survey.
(c) Title Review. At any time and from time to time during the period from the Effective
Date to forty-five (45) days after the Effective Date (the "Title and Survey Review Period"),
Buyer may object in writing ("Buyer's Objection Notice")to any liens, encumbrances, and other
matters reflected by the Title Commitment or Survey. All such matters to which Buyer so objects
shall be "Non-Permitted Exceptions"; if no such objection notice is given during the Title and
Survey Review Period, except as otherwise provided below, all matters reflected by the Survey
and Title Commitment shall be "Permitted Exceptions". Seller may, but shall not be obligated
to, at its sole cost and expense, cure, or remove or have the Title Insurer insure around (or
commit in writing to do so by Closing), in a manner reasonably acceptable to Buyer, some or all
Non-Permitted Exceptions, and give Buyer written notice thereof("Seller's Cure Notice")within
five (5) Business Days after Seller receives the Buyer's Objection Letter; provided, however,
Seller, at its sole cost and expense, shall be obligated to cure, remove or insure around by
Closing all mortgages, deeds of trust, judgment liens, mechanic's and materialmen's liens, and
other monetary liens and encumbrances against the Property arising by, through or under Seller
(other than the liens for taxes and assessments which are not delinquent) which either secure
indebtedness or can be removed by payment of a liquidated sum of money, whether or not Buyer
objects thereto during the Title and Survey Review Period (the "Monetary Liens"), and all such
matters shall be deemed Non-Permitted Exceptions. In the event that Seller does not deliver a
Seller's Cure Notice within the aforesaid required time period, then Seller shall be deemed to
have elected not to cure all matters set forth in Buyer's Objection Notice. If Buyer is not satisfied
with the matters that Seller has agreed and not agreed to cure in Seller's Cure Notice or if Seller
does not deliver a Seller's Cure Notice within the required time period, then Buyer may, as its
sole and exclusive remedy elect, on or before the end of the Inspection Period, either (a)
terminate this Contract and recover the Escrow Deposit by providing written notice of
termination to Seller, and neither Buyer nor Seller shall thereafter have any obligations under
this Contract except those that expressly survive the termination of this Contract, or(b) purchase
the Property subject to the Non-Permitted Exceptions (other than Monetary Liens), in which
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event such Non-Permitted Exceptions (other than Monetary Liens) shall thereafter be Permitted
Exceptions. If Buyer fails to terminate this Contract on or before the end of the Inspection
Period, Buyer shall be deemed to have accepted the Title Commitment and Survey in their then
current conditions, subject to Seller's commitment to resolve the matters raised in Buyer's
Objection Notice that Seller agreed to cure in the Seller's Cure Notice, and all exceptions
remaining in the Title Commitment shall be Permitted Exceptions(other than Monetary Liens).
Buyer shall have the right to have the Title Commitment and Survey updated until the
date of Closing and if, between the end of the Title and Survey Review Period and Closing,
Buyer receives notice of additional liens, encumbrances or other matters not reflected in the
initial Title Commitment or Survey or otherwise becomes aware of such matters, Buyer may
submit an additional Buyer's Objection Notice ("Additional Buyer's Objection Notice")
regarding such additional Non-Permitted Exceptions, provided that Buyer must deliver said
Additional Buyer's Objection Notice within five (5) Business Days of receiving notice about or
becoming aware of such additional matter and, in the absence of the provision of any such
Additional Buyer's Objection Notice within such time period, such additional matter shall be
deemed to be a Permitted Exception (unless such exception is a Monetary Lien). Seller may, but
shall not be obligated to, at its sole cost and expense, commit to cure, remove or insure around
by Closing, in a manner reasonably acceptable to Buyer, any or all Non-Permitted Exceptions
raised in the Additional Buyer's Objection Notice and give Buyer written notice thereof by way
of an additional Seller's Cure Notice ("Additional Seller's Cure Notice") delivered within five
(5) Business Days after its receipt of Buyer's Additional Buyer's Objection Notice with respect
to such additional matter. If Buyer is not satisfied with the matters that Seller has agreed and not
agreed to cure in the Additional Seller's Cure Notice or if Seller does not deliver an Additional
Seller's Cure Notice within the required time period (in which event Seller shall be deemed to
have elected to cure none of the matters contained within the Additional Buyer's Objection
Notice) and such additional matters arose by, through or under Seller and would adversely affect
the title to the Property, then Buyer may, on or before the date which is two (2) Business Days
after receipt of Seller's Additional Cure Notice (or if no notice is given, then within two (2)
Business Days after the expiration of the period within which Seller was to deliver an Additional
Seller's Cure Notice) but in no event later than the Closing Date, as its sole and exclusive
remedy elect to either (a) terminate this Contract and recover the Escrow Deposit by providing
written notice of termination to Seller, and neither Buyer nor Seller shall have thereafter any
obligations under this Contract except those that expressly survive the termination of this
Contract, or (b) purchase the Property subject to the Non-Permitted Exceptions (other than
Monetary Liens), in which event such Non-Permitted Exceptions (other than Monetary Liens)
shall thereafter be Permitted Exceptions.
(d)Delivery of Title Policy at Closing. In the event that the Title Insurer does not issue at
Closing, or unconditionally commit at Closing, to issue, to Buyer, due to no fault of Buyer, an
owner's title policy in accordance with the Title Commitment, insuring Buyer's title to the
Property in the amount of the Purchase Price, subject only to the standard exceptions and
exclusions from coverage contained in such policy and the Permitted Exceptions (the "Title
Policy"), Buyer shall notify Seller as soon as possible prior to Closing, and Seller may at its
option adjourn the Closing for up to but not more than fifteen (15) days to try to resolve such
issues with the Title Insurer. If at Closing, as such Closing may have been adjourned by Seller
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as provided herein, Title Insurer still shall not issue, or unconditionally commit to issue to Buyer
such title policy due to no fault of Buyer, then Buyer shall have the right to terminate this
Contract, in which case Escrow Deposit shall be immediately returned to Buyer and the parties
hereto shall thereafter have no further rights or obligations, other than those that by their terms
survive the termination of this Contract.
5. Investigations and Inspections of Property. Commencing on the Effective Date and
continuing until the Closing Buyer and its agents and representatives shall have reasonable
access to the Property at all reasonable times during normal business hours, after reasonable
advance notice to Seller, for the purpose of conducting inspections and tests, including surveys,
engineering, geotechnical and environmental inspections (limited to Phase I tests) and other
tests; provided, Seller shall have the right to accompany Buyer(or have a representative of Seller
accompany Buyer) on any of such inspections; and provided further that in no event will Buyer
be permitted to perform any invasive physical or environmental testing of the Property beyond a
customary Phase I environmental investigation without obtaining the prior written consent of
Seller. Should Buyer so desire to perform any such invasive testing, Buyer shall provide Seller
for Seller's consideration a written request detailing the nature of the proposed testing and the
reasoning for requiring such testing at least five (5) Business Days prior to the date that Buyer
wishes to conduct such testing. The rights granted to Buyer pursuant to this Section 5 shall be
exercised only after Buyer (i) has obtained a policy of general liability insurance which insure
Buyer and Seller with liability insurance limits of not less than One Million Dollars
($1,000,000.00)combined single limit for personal injury and property damage, and name Seller
as an additional insured, and (ii) provides Seller with certificates of insurance evidencing that
Buyer has obtained the aforementioned policies of insurance. Buyer shall have until 5:00 p.m.
eastern standard time on the date which is one hundred twenty (120) days after the Effective
Date (the "Inspection Period") in which to examine, inspect, and investigate the Property
Information and the Property and, in Buyer's sole and absolute judgment and discretion,
determine whether the Property is acceptable to Buyer. Buyer may terminate this Contract for
any reason or no reason at all by sending written notice thereof to Seller on or before the end of
the Inspection Period. In addition, Buyer shall be deemed to have accepted the Property and
elected to proceed to Closing under this Contract unless Buyer delivers to Seller written notice of
Buyer's election to terminate this Contract (the "Due Diligence Termination Notice") on or
before 5:00 p.m. eastern standard time on the last day of the Inspection Period. Unless Buyer
timely delivers a Due Diligence Termination Notice pursuant to this Section 5, then upon
expiration of the Inspection Period, this Contract shall continue in full force and effect, and
Buyer shall be deemed to have waived its right to terminate this Contract pursuant to this Section
5. In the event Buyer timely delivers a Due Diligence Termination Notice pursuant to this
Section 5, the Escrow Deposit shall be returned to Buyer. Copies of any and all documents,
plans, specifications, drawings, surveys, reports, environmental audits, correspondence, or
communications and any other documents, reports, materials or items produced by or for the
benefit of the Buyer, in Buyer's possession or control, in connection with its investigation and
inspection of the Property or its efforts to determine the feasibility of or obtain any necessary
approvals related to the Property, shall be delivered to the Seller within five (5) days of their
receipt or production by the Buyer, at no cost or expense to Seller. Notwithstanding the
foregoing, Seller shall have no right to rely upon the accuracy of any information contained
therein and is not an intended third party beneficiary of any such document. In conducting any
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inspections, investigations or tests of the Property, Buyer and its agents and representatives shall:
(a) not damage any part of the Property or any personal property; (b) not injure or otherwise
cause bodily harm to Seller or any third parties; (c)comply with all applicable laws; (d)promptly
pay when due the costs of all tests, investigations, and examinations done with regard to the
Property; (e) not permit any liens to attach to the Property by reason of the exercise of its rights
hereunder; and (h) repair any damage to the Property resulting directly from any such inspection
or tests. Moreover, Buyer indemnifies and holds Seller harmless from and against any and all
liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys'
fees) arising out of Buyer's inspections or tests permitted under this Contract or any violation of
the provisions of this Section 5. Buyer's obligations under this Section 5 shall survive the
termination of this Contract and shall survive the Closing.
6. Easement and Access Declaration. During the Inspection Period, the Buyer and
Seller shall negotiate and agree upon the final terms and conditions of a Declaration of Drainage,
Utilities and Access Easement Agreement (the "Easement and Access Declaration") the exact
terms and conditions of which shall be approved by the Seller and Buyer in their sole and
absolute discretion and which shall include the provisions relating to:
(a) The planning, engineering, approval, construction, maintenance, operation, repair,
replacement and use of shared access driveway, deceleration and turn lanes, and related roadway
and other improvements (including all intersection and off-site improvements), and the selection
of an engineering firm to provide engineering and related services in connection with the
development and other work contemplated by the Easement and Access Declaration.
(b) The planning, engineering, approval, construction, maintenance, operation, repair,
replacement and use of a shared surface water drainage system including retention/detention
areas located in the Drainage Easement Area, all of which shall serve the surface water drainage
requirements of the Property,the Retained Parcel and the Parent Parcel.
(c) The planning, engineering, approval, construction, maintenance, operation, repair,
replacement and use of sanitary sewer and potable water systems, including a lift station, and
related facilities sufficient to serve the requirements of the Parent Parcel as developed.
In the event the Seller and Buyer cannot agree on the final terms and conditions of the Easement
and Access Declaration on or before the end of the Inspection Period, then in either party shall
have the right to terminate this Contract, by delivering written notice to the other party in which
event the Escrow Deposit shall be returned to the Buyer and all rights, interests and obligations
arising hereunder shall cease and terminate, except those which are intended to survive such
termination.
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 matters of title accepted by Buyer set
forth in the Commitment; (ii) an assignment from Seller to Buyer in a form acceptable to Buyer,
assigning all of Seller's right, title and interest in all guarantees and warranties pertaining to the
Property and any permits, licenses, plans, authorizations and approvals relating to the Property,
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(iii) if applicable, an affidavit from Seller certified to Buyer and to the title company in form
required by Buyer and the title company to delete from Buyer's title insurance policy all
construction liens and possession exceptions and any other exceptions the title company will
delete based on Seller's affidavit; (iv) a certification by Seller which indicates that Seller is not a
foreign person as defined in the Internal Revenue Code; (v) written affirmation that the
representations and warranties set forth in Section 13 hereof remain true at the time of Closing;
(vi) a duly 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 which shall be distributed to the Seller in accordance with this
Contract.
8. Closing. The sale and purchase transaction contemplated in this Contract shall be
closed (the "Closing"), the purchase price paid and the required closing documents delivered on
or before thirty (30) days after the expiration of the Inspection Period, unless extended as
required by this Contract, or otherwise by the Seller and Buyer. The Closing shall be completed
by Keating& Schlitt, P.A. a closing agent or attorney as selected by Seller and shall take place at
the offices of Keating & Schlitt, P.A., or at such other location as shall be mutually agreed upon
between Buyer and Seller. At Closing, the City Manager of Buyer is authorized on behalf of
Buyer to execute all documents necessary to complete the transaction contemplated herein.
Notwithstanding the foregoing, the Seller shall have the option to extend Closing to on or before
January 5,2018.
9.Closing Costs. At Closing Seller and Buyer shall pay the costs and expenses as
follows:
(a) Seller shall pay (i) the cost of the Owner's title insurance premium, title search, and
closing fees to be provided by Keating & Schlitt, P.A.; (ii)the cost of preparation and recording
of any documents necessary to deliver good and clear title, (iii) its Proportionate Share of the
cost of the Survey, and (iv)all of Seller's attorneys' fees and costs.
(b) Buyer shall pay (i) its Proportionate Share of the cost of the Survey, (ii) all
documentary stamp taxes due on the conveyance of the Property, (iii) the cost of all charges
related to any inspections, investigations, reports or studies conducted by the Buyer or its agents
or vendors,and (iv)all of Buyer's attorneys' fees and costs.
10. Possession. Possession of the Property shall be delivered by Seller to Buyer at the
time of Closing hereunder. 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 Section 5 hereof with respect to loss occasioned as a result of Buyer's
inspections and investigations of the Property.
11. Prorations. Ad valorem real and personal property taxes for the year of Closing shall
be prorated as of the date of Closing. If, however, the amount of such taxes for the year of
Closing cannot be ascertained, the rates, millages and assessed valuations for the previous year,
with known changes and utilizing full discounts, shall be used as an estimate, and tax prorations
based on such estimate shall be readjusted by 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 and Warranties of Seller. Seller represents and warrants to the
Buyer that:
(a) From and after the Effective Date, and except as contemplated by this Contract, Seller
shall not perform or permit any act or event that might diminish, encumber or adversely and
materially affect the condition of or title to the Property or Buyer's rights under this Contract.
(b) To the best of Seller's actual knowledge: (i) Seller has not received notice from any
governmental or quasi-governmental 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, and (ii)
Seller has not received any notice of any existing or threatened lawsuit by which any party
claims an interest in the Property.
(c) To the best of Seller's actual knowledge Seller has not received any notices from any
city, county, state or other governmental authority or other person or entity of violations in
respect of the Property.
(d) Seller owns fee simple title to the Property and has 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.
(e) Other then has been disclosed to Buyer, there is no tenant or any other occupant of the
Property 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.
(f) To the best of Seller's actual knowledge, without any independent investigation or
inquiry, during the period of Seller's ownership of the Property, and except in connection with
agricultural activities, Seller has not generated, used, stored, handled, transported or disposed of
any Hazardous Substances (as hereinafter defined) on, over, under or around the Property and,
except as disclosed to the Buyer, Seller is not aware of any spills, releases, discharges or disposal
of Hazardous Substances that have occurred or are presently occurring on or onto the Property.
The term "Hazardous Substances" means and includes, without limitation, any toxic or
hazardous substances or materials, petroleum or other pollutants and substances, not naturally
occurring.
(g) To the best of Seller's actual knowledge, without any independent investigation or
inquiry, Seller has received no 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.
8
(h) To the best of Seller's actual knowledge, without any independent investigation or
inquiry, there is no litigation, investigation or proceeding pending or threatened which relates to
or affects the Property.
(i) Except for those matters set forth on the Commitment or otherwise disclosed to the
Buyer, Seller has not entered into any other contracts, agreements or understandings, verbal or
written, for the sale or transfer of any portion of the Property.
(j) Except for those matters set forth on the Commitment or otherwise disclosed to the
Buyer, and except as contemplated by this Contract, Seller has not made and has no knowledge
of 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.
(k) Seller, if other than an individual, is a duly-organized entity under the laws of the
State of Florida and has authority to execute this Contract,and this Contract is binding on Seller.
(I) To the best of Seller's actual knowledge, without any independent investigation or
inquiry, no representation, statement or warranty by Seller contained in this Contract or in any
exhibit attached hereto contains or will contain any untrue statements or omits or will omit a
material fact necessary to make the statement of fact therein recited not misleading.
(m) To the best of Seller's actual knowledge, without any independent investigation or
inquiry, 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. The statements and representations of Seller set forth
in this Contract shall be true and reaffirmed in writing at the Closing.
If, after the Effective Date,any event occurs or condition exists of which Seller has actual
knowledge or about which Seller receives information which renders any of the representations
contained herein materially untrue or misleading, Seller shall promptly notify Buyer in writing
and Buyer shall thereafter have the option to terminate this Contract prior to Closing, in which
event all payments made by Buyer to Seller shall remain the sole property of Seller, 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.
13. Buyer's Conditions Precedent. Buyer's obligation to close the acquisition and
acquire the Property from the Seller is expressly conditioned on the satisfaction, in the sole and
absolute discretion of the Buyer, of each of the following conditions (collectively the "Buyer's
Conditions Precedent:):
9
(a) Seller and Buyer shall have negotiated and agreed on the final terms and conditions of
the Easement and Access Declaration which shall be executed at Closing.
(b) All warranties of Seller described in Section 12 shall be materially true and correct at
the time of Closing without any breach of the same by Seller.
(c) All obligations of Seller provided in this Contract shall be fully performed by Seller,
or shall have been waived by Buyer in writing prior to or at Closing.
If any of the foregoing Buyer's Conditions Precedent shall not be fully satisfied as of the
Closing (or earlier), in the sole and absolute discretion of the Buyer, then the Buyer shall have
the right to terminate this Contract by delivering written notice of such election to the Seller.
14. Seller's Conditions Precedent. Seller's obligation to close the acquisition and sell
and convey the Property to the Buyer is expressly conditioned on the satisfaction, in the sole and
absolute discretion of the Seller, of each of the following conditions (collectively the "Seller's
Conditions Precedent"):
(a) Seller and Buyer shall have negotiated and agreed on the final terms and conditions of
the Easement and Access Declaration which shall be executed at Closing.
(b) All warranties of Buyer in this Contract shall be materially true and correct at the time
of Closing without any breach of the same by Buyer.
(c) All obligations of Buyer provided in this Contract shall be fully performed by Buyer,
or shall have been waived by Seller in writing prior to or at Closing.
(d) The Parent Parcel shall be annexed into the municipal boundaries of the City of
Clermont, and all applicable appeal periods relating to such annexation shall have expired
without the possibility of any appeal or challenge to such annexation.
(e) All portions of the Parent Parcel, except the Property, shall have zoning, land use and
other classifications or designations, including the terms and conditions of any PD ordinance,
acceptable to the Seller in its sole and absolute discretion and such classifications and
designations shall be final and not subject to any appeal or challenge.
(f) All requirements and approvals for the development of all portions of the Parent
Parcel, other than the Property, shall be acceptable to the Seller in its sole and absolute
discretion.
If any of the foregoing Seller's Conditions Precedent shall not be fully satisfied as of the
Closing(or earlier), in the sole and absolute discretion of the Seller,then the Seller shall have the
right to terminate this Contract by delivering written notice of such election to the Buyer.
15. Default.
10
(a) Seller's Remedies. If Buyer fails to perform its material obligations pursuant to this
Contract at or prior to Closing for any reason except for the failure of Seller to perform
hereunder or termination of this Contract as provided herein, then Seller shall be entitled, as its
sole remedy, to terminate this Contract by giving Buyer and the Escrow Agent written notice
thereof prior to or at Closing and recover the Escrow Deposit as liquidated damages and not as
penalty, in full satisfaction of claims against Buyer hereunder, in which case neither Buyer nor
Seller shall have any further rights or obligations hereunder, except those that expressly survive
the termination of this Contract. Seller and Buyer agree that Seller's damages resulting from
Buyer's default are difficult, if not impossible, to determine and the Escrow Deposit is a fair
estimate of those damages which has been agreed to in an effort to cause the amount of such
damages to be certain.
(b) Buyer's Remedies. If Seller fails to perform its material obligations pursuant to this
Contract for any reason except for the failure of Buyer to perform hereunder or termination of
this Contract as provided herein, or if prior to Closing any one or more of Seller's representations
or warranties are breached or untrue in any material respect, Buyer shall elect, as its sole remedy,
either to (a) terminate this Contract and recover the Escrow Deposit by giving Seller and the
Escrow Agent timely written notice of such election prior to or at Closing, in which case neither
Buyer nor Seller shall have any further rights or obligations hereunder except those that
expressly survive the termination of this Contract, (b) enforce specific performance of this
Contract(provided that any action for specific performance must be filed no later than thirty(30)
days after the occurrence of such breach or default), or (c) waive said failure or breach and
proceed to Closing. Buyer's sole and exclusive remedies shall be limited to those described in
this Section 15(b).
(c)Notice of Default and Cure. No party shall declare a default unless and until the non-
defaulting party has delivered written notice specifying the default, to the defaulting party, and
the defaulting party has failed or refused to cure any such default within ten (10) days of the
receipt of any such notice.
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
11
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 therefor 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 by facsimile or email transmission to the party entitled or required to receive the
same, as follows:
SELLER: c/o John Kingman Keating, Esq.
Keating& Schlitt, P.A.
250 East Colonial Drive, Suite 300
Orlando, Florida 32801
Telephone: 407-425-2907
Facsimile: 407-425-6345
Email: ikk@keatlaw.com
BUYER: City of Clermont
Attn.: City Manager
Post Office Box 120219
Clermont, FL 34712
Telephone: 352-241-7358
Facsimile: 352-394-4087
Email: DGray@clermontfl.org
with a copy to: De Beaubien, Simmons, Knight, Mantzaris&Neal, LLP
Attn.: Daniel F. Mantzaris, Esq.
332 North Magnolia Avenue
Orlando, Florida 32801
Telephone: (407)422-2454
Facsimile: (407)992-3541
Email: dfm14@dbksmn.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
12
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 that neither Seller nor Buyer have
employed a broker or finder. While the parties agree that Tom Ustler was not the procuring cause
of this Contract and that Buyer learned of Seller's Parent Parcel and the Property from
examination of the LCPA website and contacted and entered into negotiations directly with the
Seller, to the extent any brokerage commission is found to be due to Tom Ustler or Ustler
Properties, Inc. Buyer is obligated to pay any such commission. Except as set forth in the
preceding sentence, Seller and Buyer each 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. 1031 Exchange. The parties hereto agree that a material part of the consideration to
the Seller for executing this Contract is that the Seller has the option to qualify the subject
transaction as part of a like-kind deferred exchange under Section 1031 of the Internal Revenue
Code. Therefore, notwithstanding anything contained in this Contract to the contrary, it is
understood that if any or all of the Sellers elect to engage in a like-kind deferred exchange under
Section 1031, it would be the Seller's intent to assign this Contract to a qualified intermediary in
a replacement property transaction in a manner which will cause this transaction to qualify as
part of a like-kind deferred exchange. Buyer agrees to fully cooperate with Seller in such
exchange transaction or transactions by taking such actions or executing such documents as may
be reasonably required, at no cost or expense to the Buyer and without increasing Buyer's
liability or potential liability.
24. Effective Date. The "Effective Date" of this Contract shall be the last date upon
which this Contract is signed by the Seller and the Buyer after approval of the City of Clermont
City Council.
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 rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation to this Contract or any Exhibits hereto.
13
any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation to this Contract or any Exhibits hereto.
IN WITNESS WHEREOF, Seller and Buyer have each caused this Contract for Sale
and Purchase to be executed as of dates set forth below.
BUYER:
As to option right contained herein and
subject.= ty Council approval:
'�/ A
D: ' i ''ity Man. ler
Da -. S�I 117-
Attest: The City of Clermont,
a Florida mu O p l.corporation
By: i By:
Tracy Ackroyd,City Clerk Gai sh,Mayor
Date:
SELLER:
By: By:
, Secretary
Date:
As to acknowledgment of receipt of deposit:
deB- •ien, Simons, Knit,
•
Eh. _ ry
Dante. Mantzans
Date: „_ 1
I
14
[SELLER SIGNATURE PAGE TO CONTRACT FOR SALE AND PURCHASE]
SELLER
JOHN KINGMAN KEATING, AS TRUSTEE
OF THE HANCOCK ROAD LAND TRUST
John Kingman Keating, as Trustee
DATE EXECUTED:
TONY H. ROPER
Tony H. Roper
DATE EXECUTED: %/ i /% 7
BERT E. ROPER AND BARBARA C. ROPER
FAMILY LIMITED LIABILITY LIMITED PARTNERSHIP
By:
Charles F. Roper
As its General Partner
DATE EXECUTED:
[SELLER SIGNATURE PAGE TO CONTRACT FOR SALE AND PURCHASE]
SELLER
JOHN KINGMAN KEATING,AS TRUSTEE
OF THE HANCOCK ROAD LAND TRUST
r `vs
John AT l'ng, as Trustee
DATE EXECUTED 772 Y 7,
TONY H. ROPER
Tony H. Roper
DATE EXECUTED:
BERT E.ROPER AND BARBARA C.ROPER
FAMILY LIMITED LIABILITY LIMITED PARTNERSHIP
By:
Charles F. Roper
As its General Partner
DATE EXECUTED:
[SELLER SIGNATURE PAGE TO CONTRACT FOR SALE AND PURCHASE]
SELLER
JOHN KINGMAN KEATING,AS TRUSTEE
OF THE HANCOCK ROAD LAND TRUST
John Kingman Keating, as Trustee
DATE EXECUTED:
TONY H. ROPER
Tony H. Roper
DATE EXECUTED:
BERT E. ROPER AND BARBARA C. ROPER
FAMILY LIMITED LIABILITY LIMITED PARTNERSHIP
By:
Charles F. Roper
As its General Partner
DATE EXECUTED: 7/27/1 7
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TRACY ACKROYD HOWE, MMC
/ City Clerk
ER O
L N
352-241-7331
Choice of Champions' Tackroyd@clermontfl.org
June 28, 2017
John Kingman Keating, Esq.
250 East Colonial Drive, Ste 300
Orlando, FL 32801
Dear Mr. Keating:
The Clermont City Council approved the attached at their regular meeting held on February 14,2017.
Enclosed are two originals requiring execution. Please return both originals to the City of Clermont,
Office of the City Clerk, 685 W. Montrose Street, Clermont, FL 34711. A self-addressed stamped
envelope is enclosed for your convenience.
A fully executed original will be provided as soon as possible.
Sincerely,
7I racy Ackroyd Howe, MMC
City Clerk
685 W. Montrose Street Clermont, FL 34711 www.ClermontFL.gov