Kaufman Holdings PurchaseMEMORANDUM
TO:
FROM:
DATE:
RE:
Minutes & Records Management
Sharman Veger
Property Acquisition Specialist
Real Estate Services
September 25, 2003
Kaufman Holdings Purchase
Attached please find one (1) original recorded Warranty Deed and one (1)
original Agreement for Sale and Purchase for the above referenced project.
The Board of County Commissioners of Collier County, Florida conveyed the
Warranty Deed on June 26, 2001, Item 10(D).
Please contact me if you have any questions or comments at 2622.
Thank you.
attachments as stated
Property Appraiser's Parcel
Identification No. 00219440008 & 00221280007
2835693 OR: 2868 PG: 3382
08/01/2001 at 01:45PN DWIGHT g. BROC[, CLSII
coN8 2229970.00
ftc lB! lO.5O
DOC-.70 15610.00
ietn:
ROI?ZBL & AMDUHS
850 PARK SHORE DR 3~D FLOOR
IAI*LItS fL 34103
This instrument was prepared
without opinion of title by
and after recording return to:
Gregory L. Urbancic, Esq.
Roetzel & Andress, A Legal Professional Association
Trianon Centre, Third Floor
850 Park Shore Drive
Naples, Florida 34103
(941) 649-6200
(Space above this line for recording
WARRANTY DEED
THIS WARRANTY DEED, madethe _~O4i~ dayof d~,/xt , 2001, by Kaufmann
Holdings, Inc., a Florida corporation, whose post office address is 5850 16th Avenue N.W., Naples, FL 34119 (singularly or
collectively "Grantor"), to Board of County Commissioners of Collier County, Florida, whose post office address is 3301
Tamiami Trail East, Naples, FL 34112 (singularly or collectively "Grantee"):
(Wherever used herein, the terms "Grantor" and "Grantee" include all parties to this instnnnent and the heirs, legal representatives
and assigns of individuals, and the successors and assigns of corporations)
WITNESSETH: That the Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and other valuable
considerations, receipt of which is hereby acknowledged, hereby grants, bargains, sells, aliens, remises, releases, conveys and
confirms unto the Grantee, all that certain land situated in Collier County, Florida, viz:
See attached Exhibit "A".
TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining.
TO HAVE AND TO HOLD, the same in fee simple forever.
AND, the Grantor hereby covenants with said Grantee that the Grantor is lawfully seized of said land in fee simple; that
the Grantor has good right and lawful authority to sell and convey said land; that the Grantor hereby fully warrants the title to said
land and will defend the same against the lawful claims of all persons whomsoever; and that said land is free of all encumbrances,
except taxes for the current and subsequent years, zoning and use restrictions imposed by governmental authority, restrictions and
easements common to the subdivision, and outstanding oil, gas and mineral interests of record, if any.
IN WITNESS WHEREOF, Grantor has signed and sealed these presents the day and year first above written.
Signed, Sealed and Delivered as
to Each Grantor in the Pl~ence of
Kauf~ol~n/gs, Inc., a Florida corporation
VFred~rick'G. Kau~,~n, President
STATE OF FLORIDA )
) SS:
COUNTY OF COLLIER )
The foregoing instrument was acknowledged before me this ~) Ot ~' day of ~'-~-'!'*/ , 2001, by
Frederick G. Kaufmann, P~sident ofKaufmann Holdings, !nc., a Florida corporation, on behalf of said corporation, who ( ) is
personally known to me or~)~ has produced ~Ttt~, ;~1~ ~ '~ I "~ ~ ~ C,.L,.Oc~ as identification.
(NOTARY SEAL)
NOTAKY PUBLIC
Notary Name:
(Type or Print)
My Commission Expires:
m~mmmm~D~R &
[mmmmmmi~,
emmmmm~.L~Rl.~i~ m% [~c.
Professional cnginecrs, planners, surveyors & mappers'
129 ACRE PARCEL
LEGAL DESCRIPTION
OR: 2868 PG:
3383
A PARCEL OF LAND LYING IN THE SOUTH ONE-HALF (1/2) OF SECTION 32 TOWNSHIP 48
SOUTH RANGE 27 EAST COLLIER COUNTY FLORIDA BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST cORNER OF SAID SECTION 32;
THENCE SOUTH 87°33'23" WEST ALONG THE SOUTHERLY LINE OF SAID SoIYrHEAST ONE-
QUARTER (1/4) A DISTANCE OF 2072.75 FEET;'
THENCE LEAVING SAID SOUTHERLY LINE NORTH 2°15'36', WEST A DISTANCE OF 2071.58
FEET TO AN INTERSECTION WITH THE NORTH LINE OF THE SOUTHEAST ONE-QUARTER OF
SAID SECTION 32;
THENCE ALONG THE NORTHERLY LINE OF SAID SOUTHEAST ONE-QUARTER (1/4) NORTH
87o12'24'' EAST A DISTANCE OF 2073.99 FEET TO AN INTERSECTION WITH THE EASTERLY
LINE OF SAID SECTION 32 AND THE EAST ONE-QUARTER (1/4) CORNER OF SAID SECTION
32;
THENCE LEAVING SAD NoRTHERLy LINE SOUTH 2°14'08'' EAST ALONG THE EASTERLY'
LINE OF SAID SOUTHEAST ONE-QUARTER (1/4) A DISTANCE OF 2714.24 FEET TO THE
SOUTHEAST CORNER OF SAID SECTION 32 AND THE POINT OF BEGINNING OF THE PARCEL
HEREIN DESCRIBED;
CONTAINING 128.9 ACRES OF LAND MORE OR LESS;
SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD.
AGNOLI, BARBER AND BRUNT)AGE, INC.
PROFESSIONAL ENGINEERS, PLANNERS AND LAND SURVEYORS
GEORGE'W. HACKNEY P.S.M. 5606
129 ACRE PARCEL.D(X2
REF ABB D~VG FILE
Exhibit "A"
Main Oftlce: 7400 Tamiami Trail N., Suite 200, Naples, Florid.'l 34108 (941) 597-3l 11 FAX: (941) 566-2203
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT made as of the Io9,'fi' day of June, 2001 (the "Effective Date"), is
made and entered into by and between KAUFMANN HOLDINGS, INC. a Florida corporation
(hereinafter referred to as "Seller"), and COLLIER COUNTY (the "County"), a political
subdivision of the State of Florida, and the DISTRICT SCHOOL BOARD OF COLLIER
COUNTY (the "School Board"), (the County and the School Board are sometimes collectively
referred to herein as "Purchaser").
WITNESSETH
WHEREAS, Seller is the owner of that certain parcel of real property, located in Collier
County, State of Florida, and being more particularly described in Exhibit "A", attached hereto
and made a part hereof by reference, and consisting of approximately 229 acres; and
WHEREAS, Purchaser is desirous of purchasing the Property, subject to the conditions
and other agreements hereinaRer set forth, for the construction and use as a school facility and
county park; and
WHEREAS, Seller has advised Purchaser that Seller has an existing contract to purchase
the Property, as hereinafter defined, with another Purchaser (the "Prime Contract"); and
WHEREAS, in the event that the Prime Contract is terminated or fails to close, this
Contract shall be the back-up contract for the Property; and
WHEREAS, the effective date of this Contract will be the date the Prime Contract is
terminated by either party thereto; and
WHEREAS, it is the intent of the Purchaser and Seller that this Contract be a back-up
contract and the obligations herein are contingent upon the Prime Contract being terminated; and
WHEREAS, Seller is agreeable to such sale and to such conditions and agreements, and
to the extent required by law and the rules of any court of competent jurisdiction, Seller will
obtain the necessary approval to the terms of this Agreement from the Bankruptcy Trustee and/or
Court, and further obtain authorization to proceed with the sale in the event the Prime Contract is
terminated.
NOW, THEREFORE, and for and in consideration of the premises and the respective
undertakings of the parties hereinat~er set forth and the sum ofTen Dollars ($10.00), the receipt
and sufficiency of which is hereby acknowledged, it is agreed as follows:
I. AGREEMENT
1.01 In consideration of the purchase price and upon the terms and conditions
hereinafter set forth, Seller shall sell to Purchaser and Purchaser shall purchase from Seller all of
the property, both real and personal, located in the Cotmty of Collier, State of Florida, more
particularly described as follows (hereinafter, all property and items listed in Subsections 1.01(a)
through 1.01 (d), inclusive, are collectively referred to as the "Property"):
(a) That certain tract of real property more particularly described on Exhibit "A" attached hereto
and made a part hereof, together with all rights, privileges, tenements, hereditaments and
appurtenances pertaining thereto (the "Land"); the Land shall also be deemed to include all
interest, if any, of Seller in (i) strips or gores, if any, between the Land and abutting properties;
(ii) any land lying in or under the bed of any street, alley, road or right-of-way, opened or
proposed, abutting or adjacent to the specifically described Land; and (iii) all buildings,
structures and other improvements, if any, including, without limitation, all fixtures and
landscaping, if any, now or hereafter situated upon the Land;
(b) All of Seller's right, title and interest in and to all site plans, surveys, soil and substrata
studies, plans and specifications, engineering plans and studies and other plans, diagrams or
studies of any kind, if any which relate to the Land or the Property;
(c) All other privileges, easements, rights-of-way, riparian, littoral and water rights, and all other
rights, privileges and appurtenances owned by Seller and in any way related to, pertaining to or
accruing to the benefit of the Property; and
(d) All other privileges, permits, development approvals, rights-of-way, easements, water rights,
and all other rights and appurtenances owned by Seller and in any way related to, pertaining to or
accruing to the benefit of the Property.
II. PAYMENT OF PURCHASE PRICE
2.01 The purchase price (the "Purchase Price") for the Property shall be SEVENTEEN
THOUSAND THREE HUNDRED Dollars ($17,300.00) per acre (U.S. Currency), for the
property shown on the survey prepared by a licensed surveyor for Purchaser subject to
adjustments and prorations as herein provided. Any partial acre shall be pro rated on the same
per acre price.
2.02. If any mortgage(s) or lien(s) presently encumber(s) the Property, Seller shall be
required to satisfy or release any such mortgage(s) or lien(s) prior to or at Closing (as hereinafter
defined), and the necessary portion of the Purchase Price due Seller at Closing shall be paid by
the Closing Agent to the holder(s) of such mortgage(s) or lien(s) in order to satisfy or release
such mortgage(s) or lien(s). Seller represents and warrants that any such mortgage(s) or lien(s)
do(es) not contain any provision which would prohibit the satisfaction or release of such
mortgage(s) or lien(s) at Closing. Not less than ten (10) days prior to Closing, Seller shall cause
to be delivered to Purchaser a written estoppel letter(s) from the holder of any such mortgage(s)
or lien(s). The estoppel letter shall set forth and confirm the amount that will be required to be
paid at Closing in order to satisfy or release such mortgage(s) or lien(s) as of the Closing Date,
with a per diem charge in the event the purchase and Sale is consummated after or before the
schedule Closing Date.
III. CLOSING
3.01 The Closing (THE "CLOSING DATE", "DATE OF CLOSING", OR "CLOSING")
of the transaction shall be held and title to the Property conveyed from Seller to Purchaser by
delivery of the fully executed warranty deed(s) and other closing documents, including, without
limitation, those described in Paragraph 3.011 below, on or before July 28, 2001 unless extended
by mutual written agreement of the parties hereto. The Closing shall be held at 10 o'clock a.m.
at the offices ofRoetzel & Andress ("Closing Agent"), 850 Park Shore Drive, Suite 300, Naples,
Florida 34103 or at such other place which Seller and Purchaser shall mutually agree upon in
writing. The procedure to be followed by the parties in connection with the Closing shall be as
follows:
3.01.1 Seller shall convey a marketable title free of any liens, encumbrances, exceptions,
or qualifications. Marketable title shall be determined according to applicable title standards
adopted by the Florida Bar and in accordance with Florida law. At the Closing, the Seller shall
cause to be delivered to the Purchaser the items specified herein and the following documents
and instruments duly executed and acknowledged, in recordable form:
3.01.1.1 Warranty Deed(s) in favor of Purchaser conveying title to the Property, free and
clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Any title encumbrances or exceptions which are set forth in the
Commitment or the Survey described in Article V of this Agreement, to which Purchaser does
not object within the respective applicable review time.
3.01.1.2 Combined Purchaser-Seller closing statement.
3.01.1.3 A "Gap," Tax Proration, Mechanic's Lien, Owner's and Non-Foreign Affidavit,"
as required by Section 1445 of the Internal Revenue Code and as required by the title insurance
underwriter in order to insure the "gap" and issue the policy contemplated by the title insurance
commitment.
3.01.1.4 A W-9 Form, "Request for Taxpayer Identification and Certification" as required
by the Internal Revenue Service.
3.01.1.5 Such evidence of authority and capacity to Seller and its representatives to
execute and deliver this Agreement and such other documents as may be required to consummate
the transaction contemplated hereunder as Purchaser's counsel and/or the Title Company (as
hereinafter defined) may reasonably determine.
3.01.1.6 An assignment of all permits and development rights of the Seller pertaining to
the Property to the extent the same are assignable.
3.01.2 At the Closing, the Purchaser, or its assignee, shall cause to be delivered to the
Seller the following:
3.01.2.1 The Purchase Price in either one or more of the following forms: (i) cash, (ii)
cashier's check made payable to the order of the Seller and drawn on a bank or savings and loan
association doing business in Collier County, Florida, (iii) wire transfer of cleared federal funds
or (iv) any other payment mechanism so long as it constitutes payment in immediately available
funds, in an amount equal to the Purchase Price; subject, however, to adjustments and prorations
as herein provided. Funds may be paid in whole by either the School Board or Collier County, or
may be paid collectively by both entities. No funds shall be disbursed to Seller until the Title
Company (as hereinafter defined) verifies that the state of the title to the Property has not
changed adversely since the date of the last endorsement to the commitment, referenced in
Section 5.011 thereto, and the Title Company is irrevocably committed to pay the Purchase Price
to Seller and to issue the Owner's title policy to Purchaser in accordance with the commitment
immediately after the recording of the deed; provided however that notwithstanding the
foregoing, payment shall not be later than July 31, 2001, unless further extended by the parties.
3.02 Each party shall be responsible for payment of its own attorney's fees. Seller, at its
sole cost and expense, shall pay at Closing all documentary stamp taxes due relating to the
recording of the Warranty Deed(s), in accordance with Chapter 201.01, Florida Statutes, and the
cost of recording any instruments necessary to clear Seller's title to the Property.
3.03 Purchaser shall pay at Closing, the cost of the Survey as described in Article V, the
costs of Buyer's studies and investigations, the premium for the Owner's (ALTA Form B) Title
Policy(s) issued pursuant to the Commitment provided for in Section 5.011 below, the cost of
the title commitment and title search, and the cost of recording the Warranty Deed(s).
3.04 Real Property taxes shall be prorated based on the current year's tax with due
allowance made for maximum allowable discount, and any other applicable exemptions. If
Closing occurs at a date which the current year's millage is not fixed, taxes will be prorated based
upon such prior year's millage.
3.05 No later that ten (10) days prior to Closing, Purchaser shall notify Seller as to how
Purchaser shall take title and the legal descriptions for the portions of the Property to be
conveyed to the County and the School Board. Seller acknowledges and agrees that separate
warranty deeds will be required to convey the Property to the County and the School Board.
IV. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE.
4.01 Purchaser's obligation to consummate the transaction contemplated hereunder is
conditioned upon satisfaction of each of the following conditions at or prior to the Closing (or
such earlier date as is specified with respect to a particular condition):
(a) None of the representations and warranties of Seller set forth in Article X hereof shall
be untrue or inaccurate in any material respect;
(b) Seller shall not have failed to perform or comply with any of its agreements or
obligations in the manner and within the periods provided herein;
(c) Purchaser shall not have given written notice rightfully terminating this Contract
within the appropriate periods of time specified for the same;
(d) The Prime Contract shall have been terminated and of no further force or effect;
(e) The District School Board of Collier County shall have approved this Contract at a
public meeting on or before July 26, 2001;
(f) The Board of Collier County Commissioners shall have approved this Contract at a
public meeting on or before June 26, 2001;
(g) With respect to the County, the County's obligation to close this transaction shall be
contingent upon this Purchase and Sale Agreement being a valid and binding obligation of the
School Board at the Closing Date; and
(h) With respect to the School Board, the School Boards obligation to close this
transaction shall be contingent upon this Purchase and Sale Agreement being a valid and binding
obligation of the County at the Closing Date; and
(i)
herein.
The performance of all of the parties of those requirements set forth in Article V
In the event that any one or more of the above conditions contained in this Article IV is not
satisfied at or prior to the Closing (or such earlier date as is specified with respect to a particular
condition), Purchaser may, at its sole option, (i) terminate this Contract by notice to Seller, or (ii)
Purchaser may waive such conditions precedent and close within thirty (30) days of Purchaser's
waiver.
V. REQUIREMENTS AND CONDITIONS
5.01 Upon execution of this Agreement by both parties or at such other time as specified
within this Article, Purchaser and/or Seller, as the case may be, shall perform the following
within the times stated, which shall be conditions precedent to the Closing:
5.01.1 Within fifteen (15) days after the date on which Purchaser has received written
notice that the Prime Contract has been terminated, Purchaser shall obtain as evidence of title an
ALTA Commitment for an Owner's Title Insurance Policy (ALTA Form B-1970) covering the
Property, together with hard copies of all exceptions shown thereon. The Owner's Title Insurance
Commitment (the "Commitment") shall be issued by Attorneys' Title Insurance Fund, Inc.,
Orlando, Florida through ROETZEL & ANDRESS (the "Title Company"). The Commitment
shall (i) show and evidence that title to the Property is currently in the name of Seller, and (ii)
show and evidence that title is good, marketable and insurable, subject only to the Permitted
Exceptions (as hereinafter defined). At such time as the Purchaser has identified the portions of
the Property to be conveyed to the County and School Board, the Title Company shall amend and
endorse the Commitment and provide a title commitment for the County and a title commitment
for the School Board. At closing, the County and School Board shall be responsible respectively
for the premium for its Owner's Title Insurance Policy issued by the Title Company.]
5.01.2 The Property shall be sold, and good and marketable title is to be conveyed,
subject to the following described matters (the "Permitted Exceptions"):
(a) Real estate taxes and assessments for the year of closing and subsequent years, for
which a bill has not been rendered as of the Closing Date (as described in Article 1II); and
(b) Any title encumbrances or exceptions which are set forth in the Commitment, or in
the Survey described in Section 5.013 of this Contract, to which Purchaser does not object within
the respective applicable review period.
5.01.3 Seller shall deliver to Purchaser within five (5) days from the Effective Date any
existing as-built survey of the Land and the improvements. Within fifteen (15) days from the
date on which Purchaser has received written notice that the Prime Contract has been terminated,
Purchaser, at its own expense, may obtain an up-to-date, as-built survey of the Land and all
improvements situated thereon, prepared by a State of Florida licensed surveyor (the "Survey")
certified to Purchaser, the Title Company, and to any lending institution Purchaser may
designate. The Survey shall contain a certification as to both gross acreage and net acreage,
which is the total acreage of the Land exclusive of any dedicated road rights-of-way, canals and
lakes which exist on the Land as of the Effective Date.
5.01.4 Purchaser shall have ten (10) days, following the receipt of the Commitment and
Survey, to determine whether the Commitment or Survey reflect that Seller's title is subject to
matters which are not acceptable to Purchaser, in Purchaser's sole and exclusive discretion, and
to notify Seller in writing of the same. If Purchaser shall fail to advise the Seller in writing of any
such objections in Seller's title in the manner herein required by this Agreement, the title shall be
deemed acceptable. Upon notification of Purchaser's objection to title, Seller shall have thirty
(30) days to remedy any defects in order to convey good and marketable title, except for liens or
monetary obligations which will be satisfied at Closing. Seller, at its sole expense, shall use its
best efforts to make such title good and marketable. In the event Seller is unable to cure said
objections within said thirty (30) day time period, Purchaser, by providing written notice to Seller
within seven (7) days after expiration of said thirty (30) day period, may (i) accept title as it then
is, waiving any objection or (ii) terminate this Agreement. A failure by Purchaser to give such
written notice of termination within the time period provided herein shall be deemed an election
by Purchaser to accept title in its then existing condition and Purchaser shall proceed to close this
transaction in accordance with the terms and conditions hereof.
5.01.5 Seller shall notify Purchaser immediately after learning of any conditions or
restrictions imposed on the parties and/or sale of the Property by the Bankruptcy Trustee or
Court. The imposition of any restrictions or conditions which alter the mutual obligations and
benefits contained herein shall be grounds for termination of the Agreement by the Purchaser
pursuant to Section 8.01 of Article XIII of this Agreement.
5.01.6 Seller shall obtain any releases, subordinations or terminations necessary to
extinguish any rights, interest or title to the Property created by virtue of that certain
Memorandum of Agreement between Kaufrnann Holdings, Inc. and Eric and Kathy Feinstein,
recorded at Official Records Book 2268 Page 1003, et. seq., in the Public Records of Collier
County, Florida., with the exception of any rights of ingress/egress to the Feinstein Property
(more commonly known as Rubiayat Farms, Inc.).
5.01.7 Purchaser Collier County through the Collier County Board of Commissioners
shall have approved this Agreement on or before June 26, 2001.
5.01.7 Purchaser School Board's Associate Superintendent/Operations James H. Simms
shall have executed this Agreement on or before June 12, 2001.
5.01.8 Purchaser School Board shall have approved this Agreement on or before July 26,
2001.
VI. RIGHT OF ENTRY DURING CONTRACT PERIOD
6.01 Unless and until this Agreement is terminated, Purchaser and its agents,
employees and servants shall, at their own risk and expense, have the right to go upon the
Property for the purpose of surveying and conducting site analyses, soil borings and all other
necessary investigation. Purchaser shall, in performing such tests, use due care and shall not
cause damage to the Property. Seller shall be notified by Purchaser no less than twenty four (24)
hours prior to said inspection of the Property.
6.02 Seller acknowledges that the Purchaser, or its authorized agents, shall have the
right to inspect the Property at any time prior to the Closing.
VII. POSSESSION
7.01 Purchaser shall be entitled to full possession of the Property at Closing.
VIII. TERMINATION AND REMEDIES
8.01 If Seller shall have failed to perform any of the covenants and/or agreements
contained herein which are to be performed by Seller, then ten (10) days after Purchaser has
provided Seller with written notification of such failure and if Seller has not cured such failure
during such ten (10) day period, Purchaser may, at its option, terminate this Agreement by giving
written notice of termination to Seller. Purchaser shall have the right to seek and enforce all
rights and remedies available at law or in equity to a contract vendee, including the right to seek
specific performance of this Agreement.
8.02 If the Purchaser has not terminated this Agreement pursuant to any of the
provisions authorizing such termination, and Purchaser fails to close the transaction
contemplated hereby or otherwise fails to perform any of the terms, covenants and conditions of
this Agreement as required on the part of Purchaser to be performed, provided Seller is not in
default, then as Seller's sole and exclusive remedy, Seller shall have the right to terminate and
cancel this Agreement by giving written notice thereof to Purchaser, whereupon Seller shall have
all of the rights available under Florida law.
8.03 The parties acknowledge that the remedies described herein and in the other
provisions of this Agreement provide mutually satisfactory and sufficient remedies to each of the
parties, and take into account the peculiar risks and expenses of each of the parties.
IX. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
9.01 Seller and Purchaser represent and warrant the following:
9.01.1 Purchaser has full right and authority to enter into and to execute this Agreement
and to undertake all actions and to perform all tasks required of each hereunder.
9.01.2 Seller owns fee simple title to the Property to be purchased. Seller is presently the
subject of a pending bankruptcy proceeding, wherein the sale and purchase of the Property must
be approved/authorized by the Bankruptcy Court. Prior to closing the purchase and sale, Seller
shall obtain approval of the Bankruptcy court (if necessary) to execute, deliver, and perform its
obligations under this Agreement and the instruments executed in connection herewith, and to
consummate the transaction contemplated hereby. All other necessary authorizations and
approvals have been obtained authorizing Seller and Purchaser to execute and consummate the
transaction contemplated hereby. Prior to Closing, certified copies of all such approvals shall be
delivered to Purchaser and/or Seller, including all court orders or findings arising from the
bankruptcy proceeding.
9.01.3 The warranties set forth in this Article shall be true on the date of this Agreement
and as of the date of Closing. Purchaser's acceptance of a deed to the said Property shall not be
deemed to be full performance and discharge of every agreement and obligation on the part of the
Seller to be performed pursuant to the provisions of this Agreement.
9.01.4 Seller represents that it has no knowledge of any actions, suits, claims,
proceedings, litigation or investigations pending or threatened against Seller, at law, equity or in
arbitration before or by any federal, state, municipal or other governmental instrumentality that
relate to this agreement or any other property that could, if continued, adversely affect Seller's
ability to sell the Property to Purchaser according to the terms of this Agreement, except that
certain judgment of PDI Corp. against Seller which judgment is a matter of record in Collier
County, Florida, and that certain Bankruptcy proceeding in the Middle District Court of Florida,
Fort Myers Division entitle In Re Kaufmann Holdings, Case No. 01-2975-9P1.
9.01.5 There are no pending options to purchase or sales contracts pertaining to the
subject Property other than the Prime Contract between Seller and One Hundred Horsemen, Inc.,
a Florida corporation, Seller represents that in the event the Prime Contract is terminated or fails
to close on June 11,2001, (or any mutually agreed upon extended closing date,), this Agreement
shall become effective and the obligations contained herein binding on the parties. Seller shall
provide notice of termination of the Prime Contract not later than 3 days after such termination
occurs.
9.01.6 Until the date fixed for Closing, so long as this Agreement remains in full force
and effect, Seller shall not encumber or convey any portion of the Property or any rights therein,
nor enter into any agreements granting any person or entity any rights with respect to the Property
or any part thereof, without first obtaining the written approval of Purchaser to such conveyance,
encumbrance, or agreement, which approval may be withheld by Purchaser in its sole and
exclusive discretion for any reason whatsoever or no reason.
9.01.7 Seller represents that to the best of its knowledge, there are no incinerators, septic
tanks or cesspools on the Property and that all waste, if any, is discharged into a public sanitary
sewer system. Seller represents that it has no knowledge that any pollutants are or have been
discharged from the Property, directly or indirectly into any body of water. That Seller represents
that to the best of its knowledge, there is not located in, on, upon, over or under the Property (i)
asbestos in any form, (ii) urea formaldehyde foam insulation, (iii) transformers or other
equipment containing dielectric fluid which contains high levels of polychlorinated biphenyls in
excess of rift3' parts per million, (iv) underground tanks; or (v) any chemical, material or
substance, or existing condition, exposure to which is prohibited, limited or regulated by any
federal, state, county, regional or local authority or which, even if not so regulated, is known to
pose a hazard to the health and safety of any persons that now or may hereafter occupy the
Property or property adjacent to the Property (hereinafter sometimes collectively called
"hazardous waste"). Seller represents that to the best of its knowledge, the Property has not been
used for the production, handling, storage, transportation, manufacture or disposal of hazardous
waste,, or any other activity that would have toxic results, and no such hazardous waste is
currently used in connection with the operation of the Property, and there is no proceeding or
inquiry by any authority with respect thereto. Seller represents that it has no knowledge that there
is ground water contamination on the Property or potential of ground water contamination from
neighboring properties. Seller represents that to the best of its knowledge, no storage tanks for
gasoline or any other substances are or were located on the Property at any time during or prior to
Seller's ownership thereof. Seller represents none of the Property has been used as a sanitary
landfill.
9.01.8 Seller has no knowledge that the Property and Seller's operations concerning the
Property are in violation of any applicable Federal, State or local statute, law, ordinance, code, or
regulation, or of any notice from any governmental body has been served upon Seller claiming
any violation of any statute, law, ordinance, code or regulation or requiring or calling attention to
the need for any work, repairs, construction, alterations or installation on or in connection with
the Property in order to comply with any laws, ordinances, codes or regulation with which Seller
has not complied.
9.01.9 There are no unrecorded restrictions, easements or rights of way (other than
existing Collier County zoning regulations) that restrict or affect the use of the Property, and
there are no maintenance, construction, advertising, management, leasing, employment, service
or other contracts of any kind affecting the Property.
9.02.0 Seller has no knowledge that there are any suits, actions or arbitration, bond
issuances or proposals therefor, proposals for public improvement assessments, pay-back
agreements, paving agreements, road expansion or improvement agreements, utility
moratoriums, use moratoriums, improvement moratoriums, administrative or other proceedings
or governmental investigations or requirements, formal or informal, existing or pending or
threatened which affects the Property or which adversely affects Seller's ability to perform
hereunder; nor is there any other charge or expense upon or related to the Property which has not
been disclosed to Purchaser in writing prior to the effective date of this Agreement.
9.02.1 Seller acknowledges and agrees that Purchaser is entering into this Agreement
based upon Seller's representations stated above and on the understanding that Seller will not
cause the zoning or physical condition of the Property to change from its existing state on the
effective date of this Agreement up to and including the Date of Closing. Therefore, Seller
agrees not to enter into any contracts or agreements pertaining to or affecting the Property and
not to do any act or omit to perform any act which would change the zoning or physical condition
of the Property or the governmental ordinances or laws governing same. Seller also agrees to
notify Purchaser promptly of any change in the facts contained in the foregoing representations
and of any notice or proposed change in the zoning, or any other action or notice, that may be
proposed or promulgated by any third parties or any governmental authorities having jurisdiction
of the development of the property which may restrict or change any other condition of the
Property.
9.02.2 At the Closing, Seller shall deliver to Purchaser a statement (hereinafter called the
"Closing Representative Statement") reasserting the foregoing representations as of the Date of
Closing, which provisions shall survive the Closing.
9.02.3 Seller represents, warrants and agrees to indemnify, reimburse, defend and hold
Purchaser harmless from any and all costs (including attorney's fees) asserted against, imposed
on or incurred by Purchaser, directly or indirectly, pursuant to or in connection with the
application of any federal, state, local or common law relating to pollution or protection of the
environment which shall be in accordance with, but not limited to, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601, et
seq., ("CERCLA" or "Superfund"), which was amended and upgraded by the Superfund
Amendment and Reauthorization Act of 1986 ("SARA"), including any amendments or
successor in function to these acts. This provision and the rights of Purchaser, hereunder, shall
survive Closing and are not deemed satisfied by conveyance of title. Such representations,
3_0
warranties and indemnifications shall apply only to liabilities created prior to the conveyance
from Seller to Purchaser contemplated herein
9.02.4 Any loss and/or damage to the Property between the date of this Agreement and
the date of Closing shall be Seller's sole risk and expense.
X. NOTICES
10.01 Any notice, request, demand, instruction or other communication to be given to any
party hereunder shall be in writing and either hand delivered, delivered by overnight courier or
telecopier or facsimile transmission, or sent by registered, or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Collier County:
Real Property Management Department
Administration Building
3301 Tamiami Trail East
Naples, Florida 34112
Attention: Hope Brack
With a copy to:
Ellen T. Chadwell
Assistant County Attorney
Harmon Turner Building
3301 Tamiami Trail East
Naples, Florida 34112
If to School Board:
District School Board of Collier County
3710 Estey Avenue
Naples, Florida 34104
Attn: Mr. James H. Simms
Phone: (941) 436-6450
Facsimile: (941) 436-6531
With a copy to:
ROETZEL & ANDRESS, L.P.A.
850 Park Shore Drive
Naples, Florida 34103
Attn: John Clapper III, Esq.
Phone: (941) 649-6200
Facsimile: (941) 261-3659
If to Seller:
Kaufmann Holdings, Inc.
5850 16th Avenue N.W.
Naples, Florida 34119-1234
Attn: Fred Kaufrnann
Phone: (941) 593-5355
11
With a copy to:
Robert "Skip" Gebhardt
Porter, Wright, Morris & Arthur, LLP
3801 Tamiami Trail N.
Suite 300
Naples, Florida 34103
Phone: (941) 593-2966
Fax: (941) 593-2990
10.02 Any notice demand, request or other communication shall be deemed to be given
upon actual receipt in the case of hand delivery, facsimile or telecopier transmission, or delivery
by overnight courier, or four (4) business days after depositing the same in a letter box or by
other means placed within the possession of the United States Postal Service, properly addressed
to the party in accordance with the foregoing and with the proper amount of postage affixed
thereto. In the event of any notice via telecopier or facsimile transmission, a hard copy shall be
sent via certified mail, return receipt requested on the day of such transmission. Any such
transmission received after 5:00 p.m. Eastern Standard Time (or Daylight Time, whichever then
applicable) shall be deemed to have been given on the next following business day. For purposes
of delivering and receiving any notices, demands, requests or other communications under this
Contract, the attorneys for Purchaser may directly contact Seller and the attorneys for Seller may
directly contact Purchaser. The respective attorneys for both Seller and Purchaser are hereby
expressly authorized to give any notice, demand, request or to make any other communication
pursuant to the terms of this Contract on behalf of their respective clients.
10.03 The addressees and addresses for the purpose of this Article may be changed by
either party by giving written notice of such change to the other party in the manner provided
herein. For the purpose of changing such addresses or addressees only, unless and until such
written notice is received, the last addressee and respective address stated herein shall be deemed
to continue in effect for all purposes.
XI. REAL ESTATE BROKERS
11.01 Seller acknowledges that James Schulze of Downing, Frye Realty has been acting
as a transaction broker on behalf of the Seller, and that any and all commission, compensation, or
fees to which the broker is entitled are the sole responsibility of Seller. Any and all other
brokerage commissions, compensation, or fees due to or for any other broker or real estate agent
shall be the sole responsibility of the Seller. Seller shall indemnify Purchaser and hold Purchaser
harmless from and against any claim or liability for commission, compensation, or fees to any
broker or any other person or party claiming to have been engaged by Seller as a real estate
broker, salesman or representative, in connection with this Agreement. Seller agrees to pay any
and all commissions, compensation, or fees at closing pursuant to the terms of a separate
agreement, if any.
12
XIII. MISCELLANEOUS
12.01 This Agreement may be executed in any manner of counterparts which together
shall constitute the agreement of the parties.
12.02 This Agreement and the terms and provisions hereof shall be effective as of the
date this Agreement is executed by both parties and shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, personal representatives, successors,
successor trustee, and assignees whenever the context so requires or admits.
12.03 Any amendment to this Agreement shall not bind any of the parties hereof unless
such amendment is in writing and executed and dated by Purchaser and Seller. Any amendment
to this Agreement shall be binding upon Purchaser and Seller as soon as it has been executed by
both parties.
12.04 Captions and section headings contained in this Agreement are for convenience and
reference only; in no way do they define, describe, extend or limit the scope or intent of this
Agreement or any provisions hereofi
12.05 All terms and words used in this Agreement, regardless of the number and gender
in which used, shall be deemed to include any other gender or number as the context or the use
thereof may require.
12.06 No waiver of any provision of this Agreement shall be effective unless it is in
writing signed by the party against whom it is asserted, and any waiver of any provision of this
Agreement shall be applicable only to the specific instance to which it is related and shall not be
deemed to be a continuing or future waiver as to such provision or a waiver as to any other
provision.
12.07 If any date specified in this Agreement falls on a Saturday, Sunday or legal holiday,
then the date to which such reference is made shall be extended to the next succeeding business
day.
12.08 Seller is aware of and understands that the "offer" to purchase represented by this
Agreement is subject to acceptance and approval by the Board of County Commissioners of
Collier County, Florida.
12.09 If the Seller holds the Property in the form of a partnership, limited partnership,
corporation, trust or any form of representative capacity whatsoever for others, Seller shall make
a written public disclosure, according to Chapter 286, Florida Statutes, under oath, of the name
and address of every person having a beneficial interest in the Property before Property held in
such capacity is conveyed to Collier County. (If the corporation is registered with the Federal
Securities Exchange Commission or registered pursuant to Chapter 517, Florida Statutes, whose
stock is for sale to the general public, it is hereby exempt from the provisions of Chapter 286,
Florida Statutes.)
13
12.10 The parties acknowledge and agree that the terms of this Agreement and the
ultimate purchase of the Property as contemplated by this Agreement is subject to the approval or
mandate of the U.S. Bankruptcy Trustee and/or the Bankruptcy Court in the pending Chapter 11
bankruptcy proceedings of Kaufmann Holdings, Inc. The failure of the Seller to obtain court
approval for the purchase price and closing on the Property shall entitle the Purchaser to
terminate this Agreement, in accordance with the provisions of Section 9.01 of Article IX of this
Agreement. Under no circumstances shall the Seller's failure to obtain the necessary approval
from bankruptcy court operate as a basis for the liquidated damages set forth in Section 9.02 of
Article IX.
12.11 Purchaser is acquiring only the Property from Seller and is not the successor of
Seller. Purchaser does not assume or agree to pay, or indemnify Seller or any other person or
entity for any liability, obligation or expense of Seller or relating to the Property in any way.
Seller hereby agrees to indemnify and hold Purchaser harmless from and against all loss, damage,
liability and expense (including court costs and attorney's fees) arising out of or in any way
connected with (i) any failure by Seller to observe and perform any and all of the covenants,
conditions and obligations of Seller under any contract, agreement or lease entered into by Seller
prior to Closing and relating to the Property; (ii) any intentional or unintentional
misrepresentation or breach of warranty by Seller of any of the representations or warranties set
forth in Article V of this Contract, which are being relied upon by Purchaser in proceeding
towards closing the transaction contemplated under this Contract; (iii) arising from any acts or
omissions of Seller, whether negligent or intentional, relating to the Property and occurring prior
to the Closing Date; (iv) for any taxes and assessments remaining unpaid for calendar years prior
to the year of Closing; and (v) for any other obligations (including, but not limited to, obligations
under this Contract and any contracts) predating the Closing Date. The provisions of this Section
13.11 shall survive the Closing.
12.12
Florida.
This Agreement shall be governed in accordance with the laws of the State of
12.13 The recitals are tree and accurate and are incorporated herein by the parties and
made a part of this Agreement.
XIII. ENTIRE AGREEMENT
13.01 This Agreement and the exhibits attached hereto contain the entire agreement
between the parties, and no promise, representation, warranty or covenant not included in this
Agreement or any such referenced agreements has been or is being relied upon by either party.
Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto set forth their hands seals.
Dated Project/Acquisition Approved by
AS TO PURCHASER:
DATED: {O-'oq-kO- 0
,,'ATTEST::
DWIGHT E. 'BROCK, Clerk
'~ Attest
, .'~" , Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
James D.
Approved as to form and
legg,17sufficiency: /1.
JE~l~n W. Ch~dwell, Esq.
Assistant County Attorney
DATED:
DISTRICT SCHOOL BOARD OF
COLLIER COUNTY
James H. Simms
Associate Superintendent/Operations
15
AS TO SELLER:
Print Nan~,~/~: of Le,~.
348535_1
KAUFMANN HOLDINGS, INC.
~red~rick-*~. ~nn, President
16
NAPLES/231495 v.03
EXHIBIT "A"
LEGAL DESCRIPTION
The South ½ of Section 32, Township 48 South, Range 27 East, Collier County, Florida, LESS AND
EXCEPT the West lA of the Southwest ¼ of said Section, less and except that ten (10) acre parcel
described as follows:
COMMENCING at the South ¼ comer of Section 32, Township 48 South, Range 27 East, Collier
County, Florida, run South 88°21'21'' West 1283.36 feet along the South line of said Section 32; thence
North 01027'55" West 2012.09 feet along the West line of the East ½ of the Southwest ¼ to the POINT
OF BEGINNING; thence continue North 01027'55" West 678.65 feet along said West line; thence North
88°00'11" East 641.72 feet along the North line of the said East ½ of the Southwest ¼; thence South
01°26'29'' East 678.65 feet; thence South 88°00'11" West 641.43 feet to the POINT OF BEGINNING.
348979_1