Option Agreement for Sale and Purchase

EX-10.4 3 alco-ex104_323.htm EX-10.4 alco-ex104_323.htm

 

Exhibit 10.4

 

OPTION AGREEMENT FOR SALE AND PURCHASE

 

THIS AGREEMENT is made this 2nd day of June, 2020, between Alico, Inc., a Florida Corporation, whose address is 10070 Daniels Interstate Court, Suite 100, Ft. Myers, FL 33913 as "Seller" and the BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA ("Trustees"), whose address is Florida Department of Environmental Protection, Division of State Lands, 3900 Commonwealth Blvd., Mail Station 115, Tallahassee, Florida ###-###-####, as "Buyer".  Buyer's agent in all matters shall be the Division of State Lands of the Florida Department of Environmental Protection ("DSL").

 

1.GRANT OF OPTION.   Seller hereby grants to Buyer the exclusive option to purchase the real property located in Hendry County, Florida, described in Exhibit "A", together with all timber, transferable development rights, improvements, easements, appurtenances, hereditaments, and riparian and littoral rights, if any (the "Property"), in accordance with the provisions of this Agreement. This Option Agreement becomes legally binding on execution of this Agreement, but exercise of the option is subject to approval by Buyer and is effective only if DSL gives written notice of exercise to Seller.

 

2.OPTION TERMS.   The consideration for the option granted by this Agreement is $100.00 (“Option Payment”).  Upon execution of this Option Agreement by DSL, DSL will apply to the Chief Financial Officer for a state warrant in the amount of the Option Payment, which, will be forwarded to the escrow agent to hold for the benefit of Seller. The Option Payment is non-refundable such that Seller shall be entitled to retain the Option Payment regardless of whether Buyer exercises the Option; provided, however, the Option Payment shall be credited toward the purchase price at closing if Buyer timely exercises the option as discussed below. The option may be exercised during the period beginning with Buyer's approval of this Agreement at a regularly scheduled meeting of the Governor and Cabinet sitting as the Trustees, and ending 120 days after Buyer's approval of this Agreement ("Option Expiration Date"), unless extended by other provisions of this Agreement.   If Buyer's funds in the amount of the purchase price (as hereinafter defined in paragraph 3.A.) are not available by the Option Expiration Date the period of exercise of the option may be extended until such funds become available, not to exceed 60 days after the Option Expiration Date, by written notice to Seller. If Buyer’s funds are not available at the end of the 60-day extension then this Agreement shall terminate and neither party shall have further obligations under the provisions of this Agreement. If Buyer does not exercise its option by the Option Expiration Date, as extended if applicable, then the escrow agent is directed to release and disburse the Option Payment to Seller the following day. If Buyer does timely exercise its option, then escrow agent shall credit the Option Payment toward the purchase price paid by Buyer at closing.  

 

3.A.PURCHASE PRICE.   The purchase price for the Property is TWENTY-EIGHT MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($28,500,000.00) ("Initial Purchase Price") which, after credit for the Option Payment, will be paid at closing.  Seller hereby authorizes Buyer to issue a state warrant for the Purchase Price directly to an escrow agent who is authorized by law to receive such payment, and who is acceptable to Buyer, and to require the escrow agent to pay Seller's expenses of sale and real estate taxes.  The Initial Purchase Price is subject to adjustment in accordance with paragraph 3.B.  This Agreement is contingent upon approval of the Final Adjusted Purchase Price, hereinafter defined, by Buyer and upon confirmation that the Final Adjusted Purchase Price is not in excess of the maximum value of the Property as determined in accordance with Section 253.025(8), Florida Statutes ("DSL Approved Value").  The determination of the DSL Approved Value and the Final Adjusted Purchase Price can only be made after the completion and DSL's approval of the survey required in paragraph 6.  

 

3.B.ADJUSTMENT OF PURCHASE PRICE.   If, prior to closing, DSL determines that the Initial Purchase Price exceeds the DSL Approved Value of the Property, the Initial Purchase Price will be reduced to the DSL Approved Value of the Property (herein the "Final Adjusted Purchase Price").  If the Final Adjusted Purchase Price is less than 100% of the Initial Purchase Price because of the adjustment provided for in this paragraph, Seller shall, in Seller's sole discretion, have the right to terminate this Agreement and neither party shall have any further obligations under this Agreement.  If Seller elects to terminate this Agreement, Seller shall provide written notice to DSL of Seller's election to terminate this Agreement within 10 days after Seller's receipt of written notice from DSL of the Final Adjusted Purchase Price. If Seller fails to give Buyer a written notice of termination within the aforesaid time period from receipt of DSL's written notice, then Seller shall be deemed to have waived any right to terminate this Agreement based upon a reduction in the Initial Purchase Price pursuant to the provisions of this paragraph 3.B.  The Final

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Adjusted Purchase Price as calculated in this paragraph 3.B. is subject to further adjustment in accordance with the provisions of this Agreement. The Initial Purchase Price and the Final Adjusted Purchase Price, whichever is applicable depending on whether or not an adjustment has occurred under the provisions of this paragraph 3.B. are  hereinafter referred to as the “Purchase Price”.

 

4.ENVIRONMENTAL SITE ASSESSMENT.   Buyer, prior to the exercise of the option and at its sole cost and expense, may conduct an environmental site assessment of the Property to determine the existence and extent, if any, of any Hazardous Materials on the Property.  Further investigations, testing, monitoring or environmental site assessments are required by DSL to determine the existence or extent of Hazardous Materials on the Property, Buyer, at its sole option may elect to extend the Option Expiration Date to conduct such procedures at the Buyer's sole cost and expense. For purposes of this Agreement "Hazardous Materials" shall mean any hazardous or toxic substance, material or waste of any kind or any other substance which is regulated by any Environmental Law (as hereinafter defined in paragraph 5).

 

5.HAZARDOUS MATERIALS.   If the environmental site assessment provided for in paragraph 4 confirms the presence of Hazardous Materials on the Property, Buyer, at its sole option, may elect to terminate this Agreement and neither party shall have any further obligations under this Agreement.  Should Buyer elect not to terminate this Agreement, Seller shall, at Seller's sole cost and expense and prior to the exercise of the option and closing, promptly commence and diligently pursue any assessment, clean up and monitoring of the Property necessary to bring the Property into full compliance with Environmental Law to DSL’s satisfaction in its sole discretion.  "Environmental Law" shall mean all federal, state and local laws, including statutes, regulations, ordinances, codes, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to the protection of the environment or human health, welfare or safety, or to the emission, discharge, seepage, release or threatened release of any contaminant, solid waste, hazardous waste, pollutant, irritant, petroleum product, waste product, radioactive material, flammable or corrosive substance, carcinogen, explosive, polychlorinated biphenyl, asbestos, hazardous or toxic substance, material or waste  of  any kind into the environment, including, without limitation, ambient air, surface water, ground water, or land including, but not limited to, the Federal Solid Waste Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource and Conservation and Recovery Act of 1976, the Hazardous and Solid Waste Amendments of 1984, the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Federal Superfund Amendments and Reauthorization Act of 1986, Chapters 161, 253, 373, 376 and 403, Florida Statutes, Rules of the U.S. Environmental Protection Agency, Rules of the Florida Department of Environmental Protection, and the rules of the Florida water management districts now or at any time hereafter in effect. However, should the estimated cost to Seller of clean up of Hazardous Materials exceed a sum which is equal to 0% of the Initial Purchase Price as stated in paragraph 3.A. Seller may elect to terminate this Agreement and neither party shall have any further obligations under this Agreement.   

 

6.SURVEY.   Buyer may have the Property surveyed at its expense.  If the survey ("Survey"), certified by professional surveyor and mapper licensed by the State of Florida, shows any reduction in acreage from the appraised acreage to the surveyed acreage, any encroachment on the Property or that improvements intended to be located on the Property encroach on the land of others, the same shall be treated as a title defect. Buyer shall notify Seller in writing within the time period for Buyer to notify Seller of any title defects, specifying any matters shown on the Survey which adversely affect the title to the Property and the same shall be deemed to be title defects which shall be dealt with within the same time, manner, and subject to the limitations provided in paragraph 8.  

 

7.TITLE INSURANCE.   Buyer may provide a marketable title insurance commitment, to be followed by an owner's marketable title insurance policy (ALTA Form "B" with Florida revisions) from a title insurance company approved by DSL, insuring marketable title to the Property in the amount of the Purchase Price at Buyer's expense.  

 

8.DEFECTS IN TITLE.  Within sixty (60) days after this Option is executed by both parties, Buyer shall give written notice to Seller of any matters set forth in the title commitment obtained by Buyer pursuant to paragraph 7 above that are objectionable to, or deemed a title defect, by Buyer (“Notice of Title Objections”).  Buyer’s delivery of the Notice of Title Objections to Seller shall include therewith copies of all exception documents referenced in Schedule B, Section 2 of the title insurance commitment.  Notwithstanding anything in this Agreement to the contrary, Seller shall be obligated to cure the following defects to the extent that and only to the extent that the same are specified in the Title Commitment and in Buyer’s Notice of Title Objections (collectively, the “Mandatory Cure Defects”):  (1) mortgages and any other secured interests arising through Seller (subject to the secured parties’ consent), (2) construction liens arising through Seller, (3) back taxes on the Property that are due and payable, (4) judgment liens

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arising through Seller, and (5) other liens or encumbrances arising through Seller and securing a specific dollar amount.  As to any defects other than Mandatory Cure Defects, Seller shall have fifteen (15) days from receipt of the Notice of Title Objections in which to elect either to (i) notify Buyer that it intends to cure the identified objections and defects on or before the Closing Date (the “Title Cure Period”) and Seller shall use reasonable efforts to cure such objections and defects; or (ii) notify Buyer that Seller elects not to cure the objections or alleged defects.  In the event Seller fails to deliver a response within fifteen (15) days after receipt from Buyer of the Notice of Title Objections, Seller shall be deemed to have elected not to cure or eliminate said objections and alleged title defects.  Buyer shall have until the expiration of the Option Expiration Date of Seller’s election (or deemed election) not to cure Buyer’s objections and alleged title defects, in which to elect either (1) to terminate the Agreement, (2) to require Seller to deliver title in its then existing condition (with no reduction in the purchase price) and to proceed to Closing notwithstanding the objections to title raised by Buyer, yet still subject to Seller’s obligation to cure the Mandatory Cure Defects, (3) extend the amount of time Seller has to remove the title defect(s), or (aa) by mutual agreement with Seller, cut out the affected parcel of the Property and reduce the value of the Property by an amount equal to the product of the per acre value of the Property, multiplied by the acreage cut out.

 

9.INTEREST CONVEYED.   At closing, Seller shall execute and deliver to Buyer a statutory warranty deed in accordance with the provisions of Section 689.02, Florida Statutes, conveying marketable title to the Property in fee simple free and clear of all liens, reservations, restrictions, easements, leases, tenancies and other encumbrances, except for the Permitted Exceptions. No interest in (or any allocation of water permitted by) (a) Water Use Permit [26-01112-W], (b) Water Use Permit [26-01034-W], or (c) Water Use Permit [26-00505-W] (collectively, the “WUP’s”) is being conveyed to Buyer.  Buyer acknowledges and agrees that Seller will, either before or after closing, cause the WUP’s to be modified with SFWMD such that the allocation of any and all water allocated to the Property pursuant to the WUP will be reallocated to other lands owned by Seller and that after such modification the WUP’s will no longer apply to the Property.  For purposes of this Agreement, the term “Permitted Exceptions” shall mean: (i) applicable zoning and building ordinances and land use regulations; (ii) the lien of any and all taxes and assessments not yet due and payable; (iii) easements, licenses, covenants, conditions, restrictions, leases, reservations, exceptions and other encumbrances referenced in the Title Commitment and not specifically objected to by Buyer in the Notice of Title Objections (defined below); (iv) any exceptions caused by Buyer, its agents, representatives or employees; (v) any matters accepted or deemed accepted by Buyer pursuant to the terms and conditions of this Agreement, and (vi) any matters agreed to by the parties in writing.

 

10.PREPARATION OF CLOSING DOCUMENTS.   Upon execution of this Agreement, Seller shall submit to Buyer a properly completed and executed beneficial interest affidavit and disclosure statement as required by Sections 286.23, 375.031(1) and 380.08(2), Florida Statutes.  Buyer shall prepare the deed described in paragraph 9 of this Agreement, Buyer's and Seller's closing statements and the title, possession and lien affidavit certified to Buyer and title insurer and an environmental affidavit on DSL forms provided by DSL and acceptable to Seller.  

 

11.DSL REVIEW FOR CLOSING.   DSL will approve or reject each item required for closing under this Agreement.   If DSL rejects an item for closing which was submitted by the Seller, Seller will have 30 days thereafter to remove and resubmit any rejected item.   If Seller fails to timely deliver any items required of Seller, or DSL rejects any item after delivery, the Option Expiration Date shall be extended until DSL approves Seller's documents or until Buyer elects to terminate the Agreement.

 

12.EXPENSES.   Seller will pay the documentary revenue stamp tax and all other taxes or costs associated with the conveyance, including the cost of recording the deed described in paragraph 9 of this Agreement and any other recordable instruments that DSL deems necessary to assure good and marketable title to the Property.  

 

13.TAXES AND ASSESSMENTS.   At closing, Seller shall satisfy all real estate taxes and assessments that are or may become a lien against the Property.  If Buyer acquires fee title to the Property between January 1 and November 1, Seller shall in accordance with Section 196.295, Florida Statutes, place in escrow with the county tax collector an amount equal to the current taxes prorated to the date of transfer based upon the current assessment and millage rates on the Property.  If Buyer acquires fee title to the Property on or after November 1, Seller shall pay to the county tax collector an amount equal to the taxes that are determined to be legally due and payable by the county tax collector.

 

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14.CLOSING PLACE AND DATE.   The closing shall be on or before 15 days after Buyer exercises the option; provided, however, that if a defect exists in the title to the Property, title commitment, Survey, environmental site assessment, or any documents required to be provided or completed and executed, the closing shall occur either on the original closing date or within 60 days after receipt of documentation removing the defects, whichever is later.  Buyer shall set the date, time and place of closing and closing may be conducted as a “mail-away” closing.

 

15.RISK OF LOSS AND CONDITION OF REAL PROPERTY.  Seller assumes all risk of loss or damage to the Property prior to the date of closing and warrants that the Property shall be transferred and conveyed to Buyer in the same or essentially the same condition as of the date of Seller's execution of this Agreement, ordinary wear and tear excepted. Except as specifically set forth in the Agreement, Buyer acknowledges and agrees that Seller is transferring and Buyer accepts the Property AS IS, WHERE IS CONDITION AND WITH ALL FAULTS, as of the date of closing and specifically and expressly without any warranties, representation or guaranties, either express or implied, as to its condition, fitness for any particular purpose, merchantability, or any other warranty of any kind, nature or type whatsoever from or on behalf of Seller.    If, prior to closing, the condition of the Property is altered by an act of God or other natural force beyond the control of Seller, however, Buyer may elect, at its sole option, to terminate this Agreement and neither party shall have any further obligations under this Agreement.  Seller warrants that there are no facts known to Seller materially affecting the value of the Real Property which are not readily observable by Buyer or which have not been disclosed to Buyer.

 

Seller represents and warrants that on the date of closing there will be no parties other than Seller in occupancy or possession of any part of the Property, with the exception of the current tenant, 5F Cattle LLC.  It is understood and agreed that the current lease, with regards to this Property, with 5F Cattle LLC will be issued a termination notice prior to closing.  It is also understood and agreed that the Seller will remove all livestock, personal property, refuse, garbage, junk, rubbish, trash and debris associated with activities of the tenant, or cause tenant to remove, and surrender possession within sixty (60) days after the lease termination date, subject to closing.  After closing, Seller will continue to be entitled to receive all payments due from 5F Cattle LLC under, and to enforce the terms of, Seller’s current lease with 5F Cattle LLC.  The parties agree that $875,000.00 will be held in escrow by American Government Services Corporation to ensure Seller’s performance of all obligations to be performed within sixty (60) days after the lease termination date , subject to closing.  Should Seller fail to perform same, the amount held in escrow shall immediately be paid to Buyer as agreed upon liquidated damages. If Seller performs, the $875,000 held in escrow shall immediately be paid to Seller.

 

In consideration of the privileges herein granted, for as long as Seller remains in possession after closing, Seller hereby covenants and agrees to investigate all claims of every nature at its own expense, and to indemnify, protect, defend, save and hold harmless Buyer from any and all claims, costs, expense, including attorney’s fees, actions, lawsuits and demands of any kind or nature arising out of Seller’s possession.  Seller shall contact Buyer regarding the legal action deemed appropriate to remedy such damage or claims.  Buyer shall have the absolute right to choose its own legal counsel in connection with all matters indemnified for and defended against herein at Seller’s expense.

 

Seller to maintain, or cause tenant to maintain, liability insurance of no less than $1,000,000.00 on the Property at all times during its post-closing possession.  

 

The foregoing provisions of this paragraph 15 shall survive the closing.

 

All wells located on the Property shall be duly abandoned at the Seller’s sole cost and expense prior to closing unless this requirement is waived by DSL in writing.  Seller warrants that any billboards on the property shall be removed prior to closing.

 

Except as provided above in regards to livestock and Seller’s current tenant, Seller agrees to clean up and remove all abandoned personal property, refuse, garbage, junk, rubbish, trash and debris (hereafter, “trash and debris”) from the Property to the satisfaction of DSL prior to closing.  Except as provided above, if the Seller does not remove all trash and debris from the Property prior to closing, Buyer at its sole option, may elect to: (a) deduct the expense necessary to remove trash and debris from the Seller’s proceeds of sale up to but not to exceed 5% of the Initial Purchase Price and proceed to close, with the Buyer incurring any additional expenses necessary to remove all trash and debris and clean up the Property subsequent to closing, (b) extend the amount of time the Seller has to remove all trash and debris from the Property, (c) terminate this Agreement, and neither party shall have any further obligations under the Agreement.

 

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16.RIGHT TO ENTER PROPERTY AND POSSESSION.   Seller agrees that from the date this Agreement is executed by Seller, Buyer and its agents, upon reasonable notice, shall have the right to enter the Property for all lawful purposes in connection with this Agreement. Prior to any third-party surveyor or ESA contractor for DEP entering the Property, Buyer shall provide Seller with assurance of no less than $1,000,000 of liability insurance. Buyer shall be liable for all damages arising from its presence on the Property under the provisions of this Agreement for which it is found legally responsible. Seller shall deliver possession of the Property to Buyer at closing, subject to all other provisions of this Agreement.

 

17.ACCESS.   Seller warrants that there is legal and practical ingress and egress for the Property over public roads or valid, recorded easements for the use and benefit of and as an appurtenance to the Property.

 

18.DEFAULT.   If Seller defaults under this Agreement, Buyer may waive the default and proceed to closing, seek specific performance, or refuse to close and elect to receive the return of any money paid, each without waiving any action for damages, or any other remedy permitted by law or in equity resulting from Seller's default.

19.BROKERS.   Seller warrants that no persons, firms, corporations or other entities are entitled to a real estate commission or other fees as a result of this Agreement or subsequent closing, except as accurately disclosed on the disclosure statement required in paragraph 10.  Seller shall indemnify and hold Buyer harmless from any and all such claims, whether disclosed or undisclosed.

 

20.RECORDING.   Buyer may record this Agreement, or notice of it, in the appropriate county or counties.

 

21.ASSIGNMENT.   This Agreement may be assigned by Buyer to another state or federal agency, in which event Buyer will provide written notice of assignment to Seller.  Seller may not assign this Agreement without the prior written consent of Buyer.

 

22.TIME.   Time is of essence with regard to all dates or times set forth in this Agreement.

 

23.SEVERABILITY.   If any of the provisions of this Agreement are deemed to be unenforceable and the unenforceability of said provisions does not adversely affect the purpose and intent of this Agreement, in Buyer's sole discretion, the enforceability of the remaining provisions of this Agreement shall not be affected.

 

24.SUCCESSORS IN INTEREST.   This Agreement shall bind and inure to the benefit of Seller and Buyer and their respective heirs, legal representatives and successors. Whenever used, the singular shall include the plural and one gender shall include all genders.

 

25.ENTIRE AGREEMENT.   This Agreement contains the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties.  No supplement, modification or amendment to this Agreement shall be binding unless executed in writing by the parties.  Notwithstanding the foregoing, the parties acknowledge that the legal description contained in Exhibit "A" was prepared based upon historic chain of title information, without the benefit of a current survey of the Property.  The parties agree that if, in the opinion of DSL, it becomes necessary to amend the legal description of the Property to correct errors, to more properly describe the Property, to cut out portions of the Property affected by title defects unacceptable to Buyer or which cannot be timely cured by the Seller, or to otherwise revise the legal description of the Property, the legal description to be used in the Survey (if any) and in the closing instruments required by this Agreement shall be revised by or at the direction of DSL, and shall be subject to the final approval of DSL.  Anything to the contrary hereinabove notwithstanding, such a revision of the legal description of the Property shall not require a written amendment to this Agreement.  In such event, the Seller's execution and delivery of the closing instruments containing the revised legal description and the Buyer's acceptance of said instruments and of the final Survey (if any) containing the revised legal description shall constitute a full and complete ratification and acceptance of the revised legal description of the Property by the parties. Seller acknowledges that the Trustees have made various delegations of power for the purpose of land acquisition, and not all representatives of the Trustees or the DSL have authority to act in all situations.  Consequently, this Agreement may be terminated by the Trustees pursuant to any provision therefor contained in this Agreement only in writing signed by the person or persons who signed this Agreement on behalf of the Trustees or that person's successor.

 

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26.WAIVER.   Failure of Buyer to insist upon strict performance of any covenant or condition of this Agreement, or to exercise any right herein contained, shall not be construed as a waiver or relinquishment for the future of any such covenant, condition or right; but the same shall remain in full force and effect.

 

27.COUNTERPARTS.   This Agreement may be executed in one or more counterparts, but all such counterparts, when duly executed, shall constitute one and the same Agreement.

 

28.ADDENDUM.   Any addendum attached hereto that is signed by the parties shall be deemed a part of this Agreement.

 

29.NOTICE.   Whenever either party desires or is required to give notice unto the other, it must be given by written notice, and either delivered personally, transmitted via facsimile transmission, mailed postage prepaid, or sent by overnight courier to the appropriate address indicated on the first page of this Agreement, or such other address as is designated in writing by a party to this Agreement.

 

30.CERTIFICATION REGARDING TERRORISM.  Seller hereby certifies that to the best of Seller’s knowledge, after making all appropriate inquiries, Seller is in compliance with, and shall use all funds derived from the sale of the Property in compliance with all applicable anti-terrorism laws, regulations, rules and executive orders, including but not limited to, the USA Patriot Act of 2001, 18 U.S.C. sections 2339A-C, and U.S. Presidential Executive Orders 12947 and 13224.

 

31.SURVIVAL.   The covenants, warranties, representations, indemnities and undertakings of Seller set forth in this Agreement shall survive the closing, the delivery and recording of the deed described in paragraph 9 of this Agreement and Buyer's possession of the Property.

 

IF THIS AGREEMENT IS NOT EXECUTED BY THE SELLER, ON OR BEFORE MARCH 7, 2020 BUYER SHALL BE UNDER NO OBLIGATION TO ACCEPT THIS AGREEMENT.  BUYER'S EXECUTION OF THIS AGREEMENT IS SUBJECT TO APPROVAL BY THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA.  THE EXERCISE OF THE OPTION PROVIDED FOR HEREIN IS SUBJECT TO:  (1) CONFIRMATION THAT THE PURCHASE PRICE IS NOT IN EXCESS OF THE DSL APPROVED VALUE OF THE PROPERTY, AND (2) DSL APPROVAL OF ALL DOCUMENTS TO BE FURNISHED HEREUNDER.  THE STATE OF FLORIDA'S PERFORMANCE AND OBLIGATION TO PAY UNDER THIS AGREEMENT IS CONTINGENT UPON AN ANNUAL APPROPRIATION BY THE LEGISLATURE AND UPON THE FUNDING OF THE APPROPRIATION THROUGH THE ISSUANCE OF FLORIDA FOREVER BONDS BY THE STATE OF FLORIDA OR OTHER FUNDING AS PROVIDED BY THE LEGISLATURE.

 

THIS IS INTENDED TO BE A LEGALLY BINDING AGREEMENT WHEN DULY EXECUTED.   IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING.  

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK – SIGNATURE PAGE TO FOLLOW]

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STATE OF FLORIDA

 

COUNTY OF LEE

 

The foregoing instrument was acknowledged before me by means of  __  physical presence or  __  online notarization; this _______ day of _____, 2020 by John E. Kiernan, President and CEO, of Alico, Inc., a Florida corporation.    Such person(s) (Notary Public must check applicable box):

 

[            ]       is/are personally known to me.

[            ]       produced a current driver license(s).

[            ]       produced                                                  as identification.

 

 

 

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STATE OF FLORIDA

 

COUNTY OF LEON

 

The foregoing instrument was acknowledged before me by means of  __  physical presence or  __  online notarization; this _________ day of _________________, 2020 by Callie DeHaven, Director, Division of State Lands, Department of Environmental Protection, as agent for and on behalf of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida.  She is personally known to me.

 

 

 

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EXHIBIT “A”

 

In Township 45 South, Range 30 East, Hendry County, Florida:

 

That part of Section 11, lying South of County Road 832 (Keri Road), LESS AND EXCEPT those lands described in OR Book 581, Page 445 and OR Book 937, Page 1284, Public Records of Hendry County, Florida.

 

All of Sections 12 and 13, LESS AND EXCEPT those lands described in OR Book 937, Page 1284, Public Records of Hendry County, Florida.

 

All of Sections 14 and 23, LESS AND EXCEPT those lands described in Official Records Book 581, Page 445, Public Records of Hendry County, Florida.

 

All of Section 24.

 

In Township 45 South, Range 31 East, Hendry County, Florida:

 

All of Section 4, lying South of County Road 832 (Keri Road).

 

All of Section 5 lying South of County Road 832 (Keri Road), LESS AND EXCEPT the area around the Cell Tower Site described as the West 660 feet of the North 970 feet of said Section 5, to be more accurately described by a field survey.

 

All of Section 6 lying South of County Road 832 (Keri Road), LESS AND EXCEPT those lands described in OR Book 937, Page 1284, Public Records of Hendry County, Florida ALSO LESS AND EXCEPT the area around the Keri work center site, to be more accurately described by a field survey.  

 

All of Section 7, LESS AND EXCEPT those lands described in OR Book 937, Page 1284, Public Records of Hendry County, Florida.

 

All of Section 8, LESS AND EXCEPT those lands described in OR Book 937, Page 1284, Public Records of Hendry County, Florida.

 

All of Sections 9, 16 and 17.

 

All of Section 18, LESS AND EXCEPT those lands described in OR Book 937, Page 1284, Public Records of Hendry County, Florida.

 

All of Sections 19, 20 and 21.

 

All of Section 28, LESS AND EXCEPT those lands described in OR Book 865, Page 1364, Public Records of Hendry County, Florida.

 

All of Sections 29 and 30.

 

The East ½ of Section 31, LESS AND EXCEPT those lands described in OR Book 620, Page 1383, Public Records of Hendry County, Florida.

 

All of Section 32, LESS AND EXCEPT those lands described in OR Book 669, Page 1643, Public Records of Hendry County, Florida.

 

All of Section 33, LESS AND EXCEPT those lands described in OR Book 648, Page 1244, OR Book ###-###-#### and OR Book 865, Page 1364, Public Records of Hendry County, Florida.

 

NOTE: This legal description is for contract purposes. There may be revisions based on a boundary survey and title insurance commitment of the property.

 

Devil’s Garden

Alico, Inc.

Hendry County

  

Date: 2.24.2020

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ADDENDUM

BENEFICIAL INTEREST AND DISCLOSURE AFFIDAVIT

(CORPORATION/PARTNERSHIP)

 

Before me, the undersigned authority, personally appeared John E. Kiernan ("affiant"), this ______ day of __________, 2020, who, first being duly sworn, deposes and says:

1)  That affiant is the President and CEO of Alico, Inc., a Florida corporation as “Seller”, whose address is 10070 Daniels Interstate Court, Suite 100, Ft. Myers, FL 33913, and in such capacity has personal knowledge of the matters set forth herein and has been duly authorized by Seller to make this affidavit on Seller’s behalf.  That Seller is the record owner of the Property.  As required by Section 286.23, Florida Statutes, and subject to the penalties prescribed for perjury, the following is a list of every "person" (as defined in Section 1.01(3), Florida Statutes) holding 5% or more of the beneficial interest in the disclosing entity:  (if more space is needed, attach separate sheet)

 

 

Not applicable. Seller is a public entity registered with the Federal Securities Exchange

Commission and, thereby, is exempt from making this disclosure pursuant to section,

286.23(3)(a), Florida Statutes.

2)  That to the best of the affiant's knowledge, all persons who have a financial interest in this real estate transaction or who have received or will receive real estate commissions, attorney's or consultant's fees or any other fees, costs, or other benefits incident to the sale of the Property are: (if non-applicable, please indicate “None” or “Non-Applicable”)

 

 

Trenam, Kemker, Scharf, Barkin, Frye, O'Neill and Mullis, P.A. 1101 E. Kennedy Blvd., Suite 2700, Tampa, Fl

33602 Legal Services TBD.

 

3)  That, to the best of the affiant's knowledge, the following is a true history of all financial transactions (including any existing option or purchase agreement in favor of affiant) concerning the Property which have taken place or will take place during the last five years prior to the conveyance of title to the State of Florida:  (if non-applicable, please indicate “None”

or “Non-Applicable”)

 

 

"None, except for existing leases.

 

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This affidavit is given in compliance with the provisions of Sections 286.23, 375.031(1), and 380.08(2), Florida Statutes.

 

 

STATE OF FLORIDA

 

COUNTY OF LEE

 

The foregoing instrument was acknowledged before me by means of  __  physical presence or  __  online notarization; this _______ day of _____, 2020 by John E. Kiernan, President and CEO, of Alico, Inc., a Florida corporation.    Such person(s) (Notary Public must check applicable box):

 

[            ]       is/are personally known to me.

[            ]       produced a current driver license(s).

[            ]       produced                                                  as identification.

 

 

 

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ADDENDUM

(CORPORATE/FLORIDA)

 

A.At the same time that Seller submits the closing documents required by paragraph 9. of this Agreement, Seller shall also submit the following to DSL:

 

1.Corporate resolution that authorizes the sale of the Property to Purchaser in accordance with the provisions of this Agreement and a certificate of incumbency,

 

2.Certificate of good standing from the Secretary of State of the State of Florida, and

 

3.Copy of proposed opinion of counsel as required by paragraph B. below.

 

B.As a material inducement to Purchaser entering into this Agreement and to consummate the transaction contemplated herein, Seller covenants, represents and warrants to Purchaser as follows:

 

1.The execution of this Agreement and the performance by Seller of the various terms and conditions hereof, including, without limitation, the execution of all agreements, notices and other documents hereunder, have been duly authorized by the requisite corporate authority of Seller.

 

2.Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida and is duly qualified to own real property in the State of Florida.

 

3.This Agreement, when executed and delivered, will be valid and legally binding upon Seller and enforceable in accordance with its terms and neither the execution of this Agreement and the other instruments to be executed hereunder by Seller, nor the performance by Seller of the various terms and conditions hereto will violate the Articles of Incorporation or By-Laws of Seller, nor will they constitute a breach or default under any agreement, indenture or other instrument to which Seller is a party or by which Seller is bound.

 

At the closing, Seller shall deliver to Purchaser an opinion of counsel from an attorney licensed to practice law in the State of Florida and an active member in good standing with the Florida Bar, to the effect that the covenants, representations and warranties contained above in this paragraph B. are true and correct as of the closing date.  In rendering the foregoing opinion, such counsel may rely as to factual matters upon such other documents as counsel may deem necessary and advisable.

 

 

 

 

 

 

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ADDENDUM

(IMPROVEMENTS/BUYER)

 

A.Radon Gas.  Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who 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 your county public health unit.  This notice is being provided in accordance with Section 404.056(5), Florida Statutes.  Buyer may, at its sole cost and expense, have the buildings that will remain on the Property inspected and tested for radon gas or radon progeny by a qualified professional properly certified by the Florida Department of Health and Rehabilitative Services.  If radon gas or radon progeny is discovered, Buyer shall have the option to either:  (a) accept the Property as it then is with no reduction in the Purchase Price (b) extend the Option Expiration Date, during which time seller shall eliminate said radon gas or radon progeny from the Property, or (c) terminate this Agreement, thereupon releasing Purchaser and Seller from all further obligations under this Agreement.  

 

B.Wood Destroying Organisms Inspection Report.  Buyer may, at its sole cost and expense, obtain a Wood Destroying Organisms Inspection Report made by a state licensed pest control firm showing the buildings that are to remain on the Property to be visibly free of infestation or damage by termites or other wood-destroying pests.  If the report shows such infestation or damage, Buyer shall have the option to either:  (a) accept the Property as it then is with no reduction in the Purchase Price (b) extend the Option Expiration Date, during which time seller shall eliminate such infestation and repair such damage to the satisfaction of DSL, in its sole discretion, or (c) terminate this Agreement, thereupon releasing Purchaser and Seller from all further obligations under this Agreement.

 

C.Improvements.  Within 60 days of both parties executing this Option, Buyer will identify to seller, structures, including below ground tanks, that are to remain on the Property; all other structures, and below ground tanks, will be removed by Seller no later than 10 days prior to closing.  All structures to remain shall be accepted in AS IS condition.

 

 

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