CONTRACT FOR SALE AND PURCHASE OF REAL ESTATE
THIS CONTRACT (the "Contract") is entered into as of this ____ day of
September, 2006, by and between CAROLINA FLORIDA PROPERTIES AF#2, INC., a
Florida corporation and CAROLINA FLORIDA PROPERTIES AF#100, INC., a Florida
(collectively the "Seller"), and the CITY OF ORLANDO, a municipal corporation organized
under the laws of the State of Florida (“Buyer”).
W I T N E S S E T H:
WHEREAS, Seller is the owner and holder of that certain land adjacent to Interstate
4 in Downtown Orlando, Orange County, Florida, more particularly described and depicted
on the attached Exhibit “A” (the “Property”); and
WHEREAS, the Property shall include all of Seller’s right, title and interest in and to
all easements, rights-of-way, licenses, and concurrency vesting benefiting the Property, as
well as Seller’s interest in any land lying in the bed of any road or street adjoining the
WHEREAS, Seller has agreed to sell and Buyer has agreed to buy the Property
pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained, Seller hereby agrees to sell and Buyer hereby agrees to
buy the Property in accordance with the following terms and conditions:
1. Recitals. The above recitals are true and correct and are incorporated
herein by reference.
2. Purchase Price. The purchase price for the Property shall be Thirty Five
Million Five Hundred Thousand and 00/100 Dollars ($35,500,000.00) subject to
adjustments as hereafter set forth (the "Purchase Price"). The Purchase Price shall be
payable from Buyer to Seller as follows:
2.1 Within two (2) business days after the Effective Date, a payment of
One Hundred Dollars ($100.00) (the "Deposit") shall be delivered by Buyer directly to
Seller. The Deposit shall be considered nonrefundable in all respects and retained by
Seller in consideration of taking the Property off the market and entering into this Contract
2.2 At Closing, the remainder of the Purchase Price, subject to prorations
and adjustments as hereafter set forth, shall be paid to Seller by wire transfer to a financial
institution or other recipient as designated by Seller.
3. Inspection Period. Buyer shall have until the close of business on January
15, 2007 (the "Inspection Period") to determine whether the Property is suitable for
Buyer's intended purpose. Determination of the Property's suitability shall include, but not
be limited to, Buyer's consideration of the following matters:
3.1 Suitability of soils, access, visibility and other physical characteristics
of the Property.
3.2 Satisfactory results of environmental tests and site investigations
regarding the Property.
3.3 Availability of permits, licenses, variances and other governmental
approvals, including land use and zoning approvals, necessary for Buyer's intended use of
3.4 Such other factors, including City Council approval, marketability and
proposed use, as the Buyer may determine necessary or appropriate.
Should Buyer determine in its sole discretion that the Property is not suitable
for Buyer's intended purpose, Buyer shall have the option of terminating this Contract by
giving written notice of termination to Seller and Escrow Agent prior to the expiration of the
Inspection Period. Upon receipt of such notice of termination, this Contract shall be null
and void and the parties shall have no further obligations hereunder unless specifically set
forth elsewhere in this Contract. In the event Buyer does not timely terminate this Contract
within the Inspection Period, the parties shall continue to Closing in accordance with all
other terms and conditions of this Contract.
To assist Buyer's due diligence, Seller has delivered or will cause to be
delivered to Buyer, within five (5) days of the Effective Date hereof, copies of surveys,
environmental reports and soil studies regarding the Property which are in Seller's
possession or under Seller's control. Should Buyer not consummate the purchase of the
Property, all such reports, studies, and surveys shall be immediately returned to Seller.
4. Title Evidence. Within fifteen (15) days after the Effective Date, Seller shall,
provide to Buyer an owner's title insurance commitment for the Property, committing to
issue a standard ALTA Form B owner's title insurance policy, together with true and
complete copies of all instruments referred to in Schedule B thereof (the "Commitment")
from First American Title Insurance Company (the "Title Company"). At Closing, Seller
shall obtain and deliver to Buyer an updated Commitment showing good and marketable
title to the Property in Buyer, subject only to the Permitted Exceptions (hereinafter defined),
and within 30 days after Closing, Seller shall obtain and deliver to Buyer a satisfactory
owner's title insurance policy as to the Property issued pursuant to the Commitment in the
amount of the Purchase Price.
Within fifteen (15) days after the receipt of the Commitment and related
instruments (the “Title Objection Period”), Buyer shall examine the Commitment to
determine the nature of any defects in title. If the title to all or part of the Property is
subject to liens, encroachments, encumbrances, easements, conditions, restrictions or
other matters not satisfactory to Buyer, Buyer shall give written notice to Seller prior to
expiration of the Title Objection Period, and Seller shall have until the expiration of the
Inspection Period in which to elect to remedy or remove any such defect, lien,
encumbrance, easement, encroachment, condition or restriction.
Any defect to which Buyer does not object to on or before the expiration of
the Title Objection Period, together with any and all objections which Buyer elects to waive
pursuant to this paragraph, shall be deemed permitted exceptions ("Permitted
Exceptions"). Seller shall remove any monetary lien or encumbrance filed against any
portion of the Property. In the event Seller is unable or unwilling to remove any such defect
as provided above on or before the expiration of the Inspection Period (other than
monetary liens and encumbrances which Seller affirmatively agrees to remove at or prior to
Closing), Buyer shall have the option of either accepting the title as it then is and waiving
any such defects or terminating this Contract prior to the expiration of the Inspection
Period, whereupon neither party shall have any further rights or obligations hereunder.
Seller covenants not to voluntarily encumber the Property after the date hereof through the
term of the Contract. Buyer shall have the right to object to any new title matters first
appearing after the Effective Date of the Commitment.
5. Survey. Prior to expiration of the Inspection Period, Buyer may obtain, at its
expense, a boundary survey of the Property prepared by a registered Florida land surveyor
in accordance with the minimal technical standards promulgated by the State of Florida for
land surveys (the “Survey”). The Survey shall reflect the legal descriptions of the Property,
the exact acreage/square footage within the Property, show the location of all adjoining
road rights-of-way, as well as the location of all easements either encumbering or
benefiting the Property. A copy of the Survey shall be delivered to Seller within three (3)
days after approval by Buyer. The legal descriptions of the Property set forth on the
Survey shall be used in the deed of conveyance from Seller to Buyer.
6. Buyer’s Entry on Property. For as long as this Contract is in effect, Seller
hereby gives permission to Buyer and its agents to enter upon any portion of the Property
to conduct, at the sole expense of Buyer, such tests as Buyer may choose to perform,
including, but not limited to, engineering feasibility studies, surveys, core borings, soil tests
and environmental assessments. Buyer shall assume all risks involved in the entry upon
the Property for the performance of such activities and shall defend, indemnify and hold
Seller harmless from and against any loss or expense incurred due to bodily injury or death
to persons or damage to property or parties arising out of or in connection with the exercise
of Buyer's rights hereunder, excluding, however, liability due to disturbance of any existing
hazardous materials in or upon the Property. In the event Buyer does not complete the
purchase of the Property, Buyer shall fill all wells, borings or other excavations made by
Buyer and return the Property to Seller in substantially the same condition as existed prior
to Buyer's entry on the Property.
7. Representations of Seller. Seller represents the following to be true and
accurate as of the date of the execution of this Contract, as well as on the date of Closing.
These representations shall survive for one (1) year after Closing:
7.1 Seller is the owner in fee simple of the Property and at Closing will
convey good and marketable title to the Property, except for Permitted Exceptions.
7.2 There is no judicial, municipal or administrative proceeding threatened
or pending or, to the best of Seller's knowledge, information and belief, a cause or claim
that could be asserted against the Seller, its interest in the Property or any portion of the
Property. No attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings, are pending, or, to the best of
Seller's knowledge, threatened, against Seller, nor are any of such proceedings
contemplated by Seller.
7.3 Intentionally deleted.
7.4 Seller is authorized to enter into the transactions contemplated herein,
and has all necessary power and authority to execute this Contract and to perform or
cause the performance of Seller's obligations hereunder. No consent of any creditor,
investor, judicial or administrative body, governmental authority, or other governmental
body or agency, or other party to such execution, delivery and performance by Seller is
required. Neither the execution of this Contract nor the consummation of the transactions
contemplated hereby will (i) result in a breach of, default under, nor acceleration of, any
agreement to which Seller is a party or by which Seller or the Property are bound; or (ii)
violate any restriction, court order, agreement or other legal obligation to which Seller
and/or the Property is subject.
7.5 To the best of Seller's knowledge, no commitments or agreements
have been made to any governmental or quasi -governmental authority, utility company,
school board, church or other religious body, any property owners’ association, or any
other organization, group or individual relating to the Property which would impose an
obligation upon Buyer, as owner of the Property, to make any contributions or dedications
of money or land or to construct, install or maintain any improvements of a public or private
nature on or off the Property or otherwise impose liability on Buyer or other party owning
7.6 Seller is a "United States Person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and shall execute and
deliver an FIRPTA Affidavit at Closing.
7.7 The Property is not the subject of any unrecorded right of first refusal
or option to purchase by any third party and, except for the right of Buyer to acquire the
Property pursuant to this Contract, no other person, firm or entity has any right to acquire
all or any portion of the Property or any interest therein.
7.8 Seller has not utilized the Property, or any part thereof, to treat,
generate, deposit, store, dispose of, or place any hazardous substance (as defined by 42
U.S.C. Section 9601 (15)), any solid or hazardous waste (as defined by 42 U.S.C. Section
6901) or any petroleum product (as defined by Section 376.301 (22) of the Florida
Statutes); nor has Seller authorized any other person or entity to treat, generate, deposit,
store, dispose of, or place any hazardous substance (as defined above) or any petroleum
product (as defined above) on the Property, or any part thereof; and except as disclosed in
the environmental reports to be delivered by Buyer to Seller, to the best of Seller's
knowledge, no other person or entity has treated, generated, deposited, stored, disposed
of, or placed any hazardous substance (as defined above) or any petroleum product (as
defined above), on the Property, or any part thereof. To the best of Seller's knowledge,
there are no underground storage tanks of any kind located at the Property. Except as
disclosed in the environmental reports to be delivered by Buyer to Seller, to the best of
Seller’s knowledge, the Property has not been used as a manufacturing facility, waste
dump or landfill. Except as disclosed in the environmental reports to be delivered by Buyer
to Seller, to the best of Seller’s knowledge, there is currently no environmental
contamination on the Property.
8. “As-Is” Purchase. Buyer acknowledges that the purchase of the Property is
"As Is" in the state and condition existing at the time of Buyer's execution of this Contract,
without any warranty, express or implied, of merchantability or fitness for a particular
purpose except as expressly set forth in this Contract. In purchasing the Property, Buyer is
relying, except for Seller’s representations and warranties expressly set forth in this
Contract, solely upon its own inspection and investigation and not upon any representation,
warranty, statement, study, report, description, guideline or other information materials
made or furnished by Seller or any of its officers, employees, agents or representatives,
whether written or oral, express or implied, of any nature whatsoever unless set forth
expressly in this Contract.
9. Closing Possession and Closing Procedure.
9.1 The consummation of the transaction contemplated hereby (the
"Closing") shall take place within five (5) days after expiration of the Inspection Period (the
”Closing Date”). All documents necessary for Closing shall be delivered to the offices of
the Escrow Agent on or prior to the date of the Closing.
9.2 Possession of the Property shall be delivered to the Buyer at Closing.
9.3 At Closing, Seller shall deliver to Buyer the following documents:
(i) Special Warranty Deed (the "Deed") conveying title to the
Property subject only to Permitted Exceptions.
(ii) Such other instruments or documents reasonably required by
the parties to effectuate the intent of this Contract.
(iii) Evidence of authority and copy of such documents and
resolutions as may be acceptable to the Title Company to evidence the authority of the
person signing the deed and other documents executed by Seller at closing to convey the
Property to Buyer in accordance with this Contract.
(iv) Non-Foreign Affidavit.
(v) Owner's Affidavit acceptable to the Title Company without
exception for possible mechanic's liens or other claims against the Property.
(vi) Closing Statement setting forth the allocation of closing costs,
purchase proceeds, etc.
(vii) A "marked-up" copy of the Title Commitment for purposes of
insuring the "gap period" between the last effective date of the Title Commitment and the
recording of the Special Warranty Deed and deleting the standard exceptions.
(viii) A valid assignment of all of Seller’s right, title and interest in and
to any and all concurrency, reservations, licenses, permits, utilities, etc., benefitting the
9.4 At Closing, Buyer shall deliver to Seller the following:
(i) the balance of the Purchase Price;
(ii) the Closing Statement;
(iii) evidence of authority and such documents and resolutions as
may be acceptable to Title Company to evidence authority of the Buyer to consummate
this transaction; and
(iv) such other documents and instruments as reasonably required
to implement the terms of this Contract.
10. Closing Costs and Prorations. Closing costs and prorations of this
transaction shall be paid as follows:
10.1 Seller shall recording fees, documentary stamp taxes on the deed, if
any , costs for curing any title defects Seller is required to cure, and Seller's attorneys fees.
10.2 Buyer shall pay the costs of the title insurance commitment and policy,
recording the deed, recording fees and taxes associated with any financing for the
Property, expenses associated with any due diligence and inspection studies relating to the
Property, and Buyer's attorneys fees.
10.3 Real estate taxes and assessments, both general and special, shall be
prorated as of the date of the Closing Date based on the amount of taxes due for the year
of the Closing. In the event the actual amount of taxes for the year of closing is not known
as of the Closing Date, Buyer and Seller agree to reprorate taxes, if necessary, at the time
the actual tax bill for the year of Closing is rendered, which proration agreement shall
survive the Closing. If the Property is assessed as part of a larger tract of land, taxes for
the Property shall be calculated and prorated based upon the total tax bill for such larger
tract multiplied by a fraction, the numerator of which shall be the acreage of the Property
and the denominator of which shall be the total acreage of the larger tract, provided,
however, if any portion of said larger tract of land is assessed based on the value of
improvements constructed thereon, taxes for the Property shall be calculated and prorated
based solely upon the assessed land value of such larger tract.
11. Real Estate Commission. Buyer and Seller represent and warrant each to
the other that neither has entered into any agreement or taken any other action which
would result in a real estate brokerage commission, finder's fee or other similar charge
payable on account of the sale of the Property. Each party agrees to indemnify and hold
harmless the other against any other costs for such a charge arising out of the actions of
the indemnifying party.
12. Notices. Any notices required or permitted under this Contract shall be in
writing and shall be deemed delivered when mailed, postage prepaid, by registered or
certified mail, return receipt requested, or when deposited with a nationally recognized
overnight delivery service, e.g., Federal Express, Purolator, Express Mail, etc., or when
sent by facsimile transmission, with a printed confirmation, addressed to the respective
parties at the respective addresses set forth below:
To Buyer: City of Orlando
Attn: Laurie Botts-Wright
Real Estate Manager
400 South Orange Avenue
Orlando, Florida 32801
With copies: Roy K. Payne, Esquire
Assistant City Attorney
City of Orlando
Office of Legal Affairs
400 S. Orange Avenue, 3rd Floor
Orlando, Florida 32801
To Seller: Carolina Florida Properties
Attention: Ed Neill
2965 Tate Boulevard, S.E.
Hickory, N.C. 28603
With copies to: Shutts & Bowen LLP
300 S. Orange Avenue - Suite 1000
Orlando, Florida 32801
Attn: James G. Willard, Esquire & Daniel T. O’Keefe, Esquire
To Escrow Agent: Shutts & Bowen LLP
300 S. Orange Avenue - Suite 1000
Orlando, Florida 32801
Attn: James G. Willard. Esquire
13. Default and Remedies. Time is of the essence for the purposes of this
Contract. If any obligation of Buyer set forth herein is not timely performed by Buyer, then
this Contract shall be terminated and Escrow Agent shall deliver the Deposit to Seller as
Seller's sole remedy and both parties will thereafter be released from all obligations
hereunder unless expressly set forth elsewhere herein. The parties agree that the retention
of the Deposit by Seller in the event of Buyers default represents a bona fide provision for
liquidated damages and not a penalty and such provision is incorporated herein for the
benefit of both parties.
In the event the Seller fails to perform any covenant, agreement or condition
hereof, or if Seller's representations herein are untrue, then Buyer may, as Buyer's sole
and exclusive remedies, either (i) terminate this Contract and receive the return of the
Deposit, or (ii) Buyer may treat this Contract as continuing in full force and effect and
pursue an action for specific performance.
In the event of litigation in connection with this Contract, the prevailing party
shall be entitled to reimbursement from the other for all costs and expenses incurred in
connection therewith, including reasonable attorney's fees at trial, on appeal or in
14. Escrow Agent. Escrow Agent shall hold the Deposit in an interest bearing
account with the interest accruing to the benefit of the party ultimately receiving the
Deposit. In the event Escrow Agent is in doubt as to its duties under this Contract, Escrow
Agent may interplead the Deposit into a court of competent jurisdiction the county wherein
the Property is situated and the cost of such action, including Escrow Agent's attorneys'
fees, shall be borne by the non-prevailing party in such interpleader action. Escrow Agent
shall have no duties or obligations under this Contract other than to hold and disburse the
Deposit in accordance with the terms hereof. Buyer acknowledges that Escrow Agent is
acting as attorney for Seller and agrees that in the event of a dispute between the parties
regarding the Deposit and/or this Contract, Escrow Agent shall be entitled to represent
Seller without claim of conflict of interest by Buyer due to the service by Seller’s counsel as
Escrow Agent hereunder.
15. Condemnation. If, prior to the Closing Date, all or any portion of the
Property is taken by eminent domain (or is the subject of a pending or contemplated taking
which has not been consummated), the Seller shall notify the Buyer of such fact and the
Buyer shall have the option (which option shall be set forth in a notice from the Buyer to the
Seller given not later than thirty (30) days after receipt of the Seller's notice): (i) to terminate
this Contract, in which event the Deposit, together with all interest earned thereon, shall be
refunded to Buyer; or (ii) to accept title to the Property (other than the portion so taken),
with a reduction in the Purchase Price equal to the amount of the condemnation award, or,
if the condemnation has not yet occurred, requiring Seller to convey the entirety of the
Property for the full Purchase Price and to transfer and assign to Buyer at the Closing all of
Seller’s right, title and interest in and to any award to be made by reason of such
16. General Matters.
16.1 Successors in Interest. All provisions of this Contract are binding
upon and shall inure to the benefit of, and are enforceable by and against, the successors
and assigns of each party hereto.
16.2 Governing Law. The terms and conditions of this Contract shall be
construed and controlled in accordance with the laws of Florida. The parties hereby
consent to jurisdiction and venue for any litigation in Orange County, Florida.
16.3 Entire Agreement. This Contract contains the entire agreement
between the parties with respect to the subject matter hereof and no statement or
representation of any party, their agents or employees, shall form any part hereof or be
binding upon the other party. This Contract shall not be changed or modified except by
written instrument signed by the parties hereto.
16.4 Captions, Gender. Captions used in this Contract are for
convenience of reference only and shall not affect the construction of any provision hereof.
Whenever used, the singular shall include the plural, the plural shall include the singular
and gender shall include all genders.
16.5 Effective Date. The term "Effective Date" shall be date this Contract
is last executed by Seller or Buyer.
16.6 Counterparts. This Contract may be executed in any number of
counterpart of which when taken together shall constitute the original document.
16.7 Interpretation. This Contract and any related instruments shall not be
construed more strictly against one party than against the other by virtue of the fact that
initial drafts were made and prepared by counsel for one of the parties, it being recognized
that this Contract is the product of extensive negotiations between the parties hereto and
that both parties have contributed substantially and materially to the final preparation of this
16.8 Time. Time is of the essence of each and every term, provision and
covenant of this Contract. Time periods of less than six (6) days shall be computed so as
to exclude Saturday, Sundays and national or state legal holidays, and any time periods so
provided herein shall be extended until the next business day. Any time period of longer
than six (6) days which expires on a Saturday, Sunday or national or state legal holiday
shall be extended until the next business day.
16.9 Exhibits. All exhibits attached to this Contract shall, by this reference,
be incorporated into this Contract.
16.10 Consents. Unless specifically provided to the contrary elsewhere in
this Contract, wherever herein provision is made for the consent or approval of Seller or
Buyer, the same shall not be unreasonably withheld, delayed or conditioned. Wherever in
this Contract provision is made for one party to incur costs on behalf of the other party,
such costs shall be deemed limited to reasonable and actual costs incurred.
16.11 Radon Gas Notification. In accordance with the requirements of
Section 404.056(5), Florida Statutes, the following notice is hereby given:
RADON GAS: Radon is a naturally occurring radioactive gas
that when accumulated in a building in sufficient quantities may
present health risks to persons or are exposed to it over time.
Levels of radon that exceed federal and state guidelines have
been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from the
local county public health unit.
16.12 Severability. If any section or provision of this Contract shall be held
to be unenforceable by any court of competent jurisdiction, this Contract shall be construed
as though such section had not been included herein. If any section or provision of this
Contract shall be subject to two (2) constructions, one of which would render the section or
provision invalid, then such section or provision shall be given that construction which
would render it valid.
16.13 No Recording. Neither this Contract nor any memorandum hereof
shall be recorded in any public records.
16.14 Tax Free Exchange. Seller may effect the transaction contemplated
by this Contract as part of a tax free exchange under Section 1031 of the Internal Revenue
Code of 1986, as amended, and Buyer agrees to cooperate to the fullest reasonable extent
with Seller in effecting such tax free exchange including, but not limited to, cooperation with
a qualified intermediary in the execution of such documents as reasonably required by
such qualified intermediary. Buyer shall not, however, be required to incur any costs
related to such cooperation.
16.15 Survival. Any obligations of the parties set forth in this Contract
which, by their nature, cannot be or are not intended to be satisfied or performed prior to
Closing, shall survive Closing and shall not be deemed to be merged in the deed of
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Contract as set
CAROLINA FLORIDA PROPERTIES AF#2,
INC., a Florida corporation
Date of execution: ______________ By: ___________________________________
CAROLINA FLORIDA PROPERTIES AF#100,
INC., a Florida corporation
Date of execution: ______________ By:___________________________________
CITY OF ORLANDO
Mayor/Pro Tem ______________
ATTEST: APPROVED AS TO FORM AND LEGALITY
for use and reliance by the City of Orlando,
_________________________________ __________________________, 2006
Alana Brenner, City Clerk
Date of execution: __________________
ORLDOCS 10469831 5