HomeMy WebLinkAboutIII (B) Approval and Authorization for Mayor and City Clerk to execute Wingate Purchase Agreement for Parcel 102 (Story Road/Kissimmee Avenue and Marshall Farms Road/Maguire Road Intersection Improvement Project AGENDA 10-15-96
F O LEY & L A R D N E R Item III B
ATTORNEYS AT LAW
CHICAGO POST OFFICE BOX 2193 SAN DIEGO
JACKSONVILLE ORLANDO, FLORIDA 32802-2193 SAN FRANCISCO
LOS ANGELES 111 NORTH ORANGE AVENUE,SUITE 1800 TALLAHASSEE
MADISON ORLANDO, FLORIDA 32801-2386 TAMPA
MILWAUKEE TELEPHONE(407)423-7656 WASHINGTON D.C.
SACRAMENTO FACSIMILE(407)648-1743 WEST PALM BEACH
WRITER'S DIRECT LINE
MEMORANDUM
TO: The Honorable Mayor and City Commissioners of
the City of Ocoee
FROM: Mary A. Doty, Assistant City Attorney3
THRU: Paul E. Rosenthal, City Attorney
DATE: October 8, 1996
RE: Story Road/Kissimmee Ave. and Marshall Farms Road/Maguire
Road Intersection Improvement Project: Wingate Purchase
Agreement, Parcel 102
Pursuant to Agenda Item VI (E) of the August 20, 1996 agenda,
the Ocoee City Commission authorized Mayor Vandergrift to execute
a purchase agreement to acquire Parcel 102, owned by the Wingates,
at its appraised value of $3,288.00. Upon receipt of the City's
offer of $3,288. 00, the Wingates have not contested the value of
the property to be acquired but have made a counteroffer which
includes the following provisions:
(a) payment of reasonable attorneys' fees up to $1,200. 00;
(b) installation by the City, at the City's expense, of an
eighteen inch RCP stormwater culvert to accommodate
stormwater outfall from the Wingate Parent Tract;
(c) installation by the City, at its expense, of a four inch
sewer force main stub from the existing force main on the
west side of Kissimmee Avenue to the eastern boundary of
the Kissimmee Avenue right-of-way; and
(d) modification of the City's plans to reflect that the City
will, at its expense, construct a 12-foot wide driveway
at a different location instead of the 46-foot and 12-
foot driveways presently shown on the City's plans.
ESTABLISHED 1 8 4 2 L
A MEMBER OF GLOBALEX WITH MEMBER OFFICES IN BERLIN,BRUSSELS,DRESDEN,FRANKFURT,LONDON,PARIS,SINGAPORE,STUTTGART AND TAIPEI
The installation of the stormwater culvert and sewer force
main stub can be done at minimal expense to the City and Wingates'
request for the driveway modifications will actually be less costly
than the City's original driveway plans.
The property to be acquired by the City includes parking area
used by the Wingates' used car business presently operating on the
Parent Tract. The loss of this parking area constitutes a
colorable claim for business damages. The Real Estate Consortium's
appraised value of $3 ,288.00 does not include any evaluation of a
potential business damage claim the Wingates might have if the City
proceeded with an eminent domain action. It is the opinion of
counsel that the costs of litigation, including the City's
liability for the Wingates' attorneys' fees and costs as well as
any business damages awarded due to the loss of parking will exceed
the $1,200 requested by the Wingates for attorneys' fees.
Recommendation:
It is respectfully recommended that the Mayor and City
Commissioners approve the attached Purchase Agreement executed by
the Wingates for Parcel 102, authorizing execution thereof by the
Mayor and City Clerk.
MAD/lw
Enclosure
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PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made and entered
into this Cm day of 6)GTD4:f3�/2 1996, by and between KENNETH R.
WINGATE and BONNY L. rINGATE, his wife, and DONALD A. WINGATE and
CAROLE P. WINGATE, his wife, whose mailing address is 4938 West
Colonial Drive, Suite 5, Orlando, Florida 32808 (hereinafter
referred to as the "Seller") , and the CITY OF OCOEE, a Florida
municipal corporation, whose address is 150 North Lakeshore Drive,
Ocoee, Florida 32761 (hereinafter referred to as "the City") .
WITNESSET H:
WHEREAS, the Seller is the owner of fee simple title to
certain real property located in Orange County, Florida, as more
particularly described in Exhibit "A" attached hereto and by this
reference made a part hereof (the "Property") ; and
WHEREAS, the City is a Florida municipal corporation which is
authorized to exercise condemnation powers pursuant to Chapter 166,
Florida Statutes; and
WHEREAS, the City is constructing the Story Road/Kissimmee
Avenue and Marshall Farms/Maguire Road Intersection Improvement
Project ("the Project") and in connection therewith needs to
acquire from the Seller fee simple title to the Property for a
public roadway; and
WHEREAS, the City has advised Seller that if the City and the
Seller do not enter into an agreement for the purchase and sale of
the Property that the City intends to use its power of eminent
domain to condemn its required interest in the Property; and
WHEREAS, Seller, under threat of condemnation, has agreed to
sell to the City, and the City has agreed to purchase the Property,
together with any and all improvements, structures, fixtures and
appurtenances thereto on the terms and conditions stated below; and
NOW, THEREFORE, in consideration of the promises and other
good and valuable considerations exchanged between the parties
hereto, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Recitals. The above recitals are true and correct and
are incorporated herein by reference.
2. The Purchase - The Property. Seller, under threat of
condemnation, agrees to sell and the City agrees to purchase, for
the purchase price and on the terms and conditions herein set
forth, the Property, together with all tenements, hereditaments,
improvements, structures, fixtures, trees, shrubbery, roads and
easements, appertaining thereto and all of the Seller's right,
title and interest therein. The Seller shall convey to the City
marketable, fee simple title to the Property by special warranty
deed free and clear of all liens, mortgages and encumbrances,
except for restrictions, reservations and easements of record, if
any. The instrument of conveyance shall transfer all of Seller's
interest in and to all improvements, fixtures, easements, trees,
shrubbery, rights-of-way, tenements and appurtenances belonging or
appertaining to the Property, including without limitation of the
foregoing, all right, title and interest of Seller in and to any
land lying in the bed of any street, alley, road or avenue (before
or after vacation thereof, and whether previously abandoned or
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vacated or hereafter abandoned or vacated) .
3. Purchase Price. The Purchase Price for the Property
shall be THREE THOUSAND TWO HUNDRED EIGHTY EIGHT AND NO/100 DOLLARS
($3,288.00) ("the Purchase Price") . The parties hereto acknowledge
and agree that the Purchase Price: (a) constitutes full
compensation to the Seller for the value of the Property and the
resultant damage, if any, to the remainder of the lands adjacent
thereto owned by the Seller; (b) includes full compensation to the
Seller for all trees, shrubbery and other improvements located on
the Property, all of which will be removed by the City in
connection with the Project; and (c) includes compensation and
reimbursement to the Seller for all costs and expenses incurred or
to be incurred incident to this Agreement and the closing hereof,
with the exception of attorneys' fees.
4. Attorneys' Fees. The City agrees to pay Seller's
reasonable attorneys' fees incurred in negotiating this Purchase
Agreement in an amount not to exceed TWELVE HUNDRED AND NO DOLLARS
($1,200. 00) .
5. Closing Costs: Tax Proration. The City shall pay all
closing costs associated with this Agreement, including all
recording fees and documentary stamp taxes, if any, relating to or
resulting from the transfer of title to the City of the Property.
Real property taxes in connection with the conveyance of the
Property shall be prorated as of the day of the acceptance of the
conveyance by the City and the prorated amount shall be paid by the
Seller and shall be escrowed in accordance with the provisions of
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Section 196.295, Florida Statutes.
6. Maintenance of Access.
Throughout . the Project, the City will maintain for
Seller's benefit access to the adjacent lands owned by the Seller
as of the date hereof as more particularly described in Exhibit "B"
attached hereto and this reference made a part hereof ("the Parent
Tract") ; provided, however, that the Seller acknowledges that there
may be temporary periods during which access to the Parent Tract
may be temporarily rerouted due to construction activities
associated with the Project.
7. Project Design.
(A) The City will construct the Project pursuant to
roadway plans prepared by Professional Engineering Consultants (the
"Roadway Plans") .
(B) Prior to the completion of the Project, the City
will, at the City's expense, install an eighteen inch RCP
stormwater culvert under Geneva Street to accommodate the
stormwater outfall from the Parent Tract if developed to a maximum
80% impervious area coverage. This outfall culvert will convey
stormwater from the Parent Tract's on-site ponds which will be
constructed in accordance with applicable City of Ocoee ordinances,
policies, procedures, rules and regulations and applicable
regulatory agency rules, regulations, and standards.
(C) Prior to the completion of the Project, the City
will, at the City's expense, install a four inch sewer force main
stub from the existing force main on the west side of Kissimmee
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Avenue to the eastern boundary of the Kissimmee Avenue right-of-
way, which stub will be capped for future connection of the Parent
Tract to the City sewer system. The City's agreement to install
the four inch force main stub, however, in no way constitutes a
reservation or commitment of any sewer capacity by the City.
Seller acknowledges that it will have to comply with all City of
Ocoee ordinances, policies, procedures, rules and regulations
regarding sewer service to the Parent Tract before connecting to
the four inch force main stub.
(D) The parties agree that the City shall modify the
Roadway Plans to reflect that the City will, at the City's expense,
construct a 12-foot wide driveway centered at Station 151 + 04.5
instead of the 46-foot wide driveway that is presently shown on the
Roadway Plans at that location. The Roadway Plans shall also be
modified to delete the 12-foot wide driveway presently shown
centered at Station 151 + 89.5 of the Roadway Plans.
(E) The provisions of this Paragraph 7 shall survive the
closing.
8 . Concurrency.
(A) The current policy of the City is as follows with
respect to determining transportation concurrency in connection
with the renovation of a building or the demolition of a building
which is replaced by a new building: The property receives credit
for the most recent use of the building. For business uses, there
must be a valid occupational license on record. The credit is for
concurrency purposes only in conjunction with determining
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transportation capacity for the newly proposed use and does not in
any way constitute an exemption from the payment of road impact
fees for the new use, which will be assessed in accordance with
Ocoee City Code.
(B) Seller shall be entitled to potable water capacity
based on existing water meters consistent with all City of Ocoee
ordinances, policies, rules and regulations governing potable water
service and capacity calculations.
(C) The provisions of this Paragraph 8 shall survive the
closing.
9. Closing. Closing of title for the Property shall take
place at the offices of Foley & Lardner, 111 North Orange Avenue,
Suite 1800, Orlando, Florida at _ _ a.m. on , 1996.
The City's legal counsel shall be responsible for the preparation
of all closing documents, at the City's expense.
10. Additional Documentation. In connection with the
conveyance of the Property, the Seller shall execute such other
closing documents as may reasonably be required by the City,
including but not limited to a standard form no-lien affidavit, a
non-foreign certification, and a closing statement.
11. Use of Property Prior to Closing. From the date hereof
through the date of acquisition of the Property, the City through
its consultants, contractors and employees, will be and are hereby
authorized to enter upon the Property for the purposes of having
scientific investigation, surveying and the taking of soil borings
in connection with the Project. Any boring holes made by the City
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shall be promptly filled and packed to the surrounding earth level
by the City.
12. Access to Parent Tract During Construction. From the
date of closing through the completion of construction of the
Project, the City through its consultants, contractors and
employees, will be and are hereby authorized to enter upon the
Parent Tract to the extent necessary to remove trees, shrubbery and
other improvements located on the Property and within the limits of
construction of the Project. The City shall be responsible for any
damage to the Parent Tract lying outside of the limits of
construction as shown on the Roadway Plans caused in connection
with the exercise of the rights granted under this paragraph. The
provisions of this paragraph shall survive the closing.
13 . Further Documentation. The parties agree that at anytime
following a request therefor by the other party, each shall execute
and deliver to the other party such further documents and
instruments, in form and substance reasonably necessary to confirm
and/or effectuate the obligations of either party hereunder and the
consummation of the transactions contemplated hereby. The
provisions of this paragraph shall survive the closing.
14. Specific Performance. Both the City and the Seller shall
have the right to enforce the terms and conditions of this
Agreement by an action for specific performance.
15. Time of Essence. Time is of the essence for this
Agreement and in the performance of all conditions, covenants,
requirements, obligations and warranties to be performed or
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satisfied by the parties hereto.
16. Agreement: Amendment. This Agreement constitutes the
entire agreement between the parties, and supersedes all previous
discussions, understandings and agreements, with respect to the
subject matter hereof. Amendments to and waivers of the provisions
of this Agreement shall be made by the parties only in writing by
formal amendment.
17. Applicable Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Florida.
18. Disclosure of Beneficial Interest. Seller warrants and
represents to the City that no member of the Ocoee City Commission,
no agent or employee of the City, and no person related by blood or
marriage to any of the aforesaid has or will benefit in any way,
either directly or indirectly from the sale of the Property by
Seller to the City under the provisions of this Agreement.
19. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their
respective legal representatives, successors, heirs and assigns.
20. Negotiated Price to be Without Prejudice. The purchase
price specified herein was negotiated by the parties on the basis
of a total price for the Property and shall be without prejudice to
any party, and inadmissable in any condemnation proceedings which
might hereinafter be brought if this transaction is not closed for
any reason whatsoever.
21. Time for Acceptance. The Seller is irrevocably executing
this Agreement prior to approval by the City; provided, however,
8
that in the event the City does not approve and execute this
8
Agreement on or before October/S, 1996, then the Seller's execution
hereof shall be automatically terminated and the City shall
immediately return to the Seller the executed originals hereof.
22. Effective Date. The Effective Date of this Agreement
shall be the date that it is executed by the City and such date
shall be inserted on the front page of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, to become effective as of the date and year first above
written.
Signed, sealed and delivered SELLER:
in the presence of:
-'m IX. L-(VcIA,4aL
ri,Ly.,,,,,i,(L_
Print Ngme: �,n/ E1.g e-q,eT�g Kenneth R. Wingate 0
af,-(7;:,,_ (A.,t_ girl
Print Name: �,,,,i,V eo&RDy .i l
0 e/Y\--c‘( (.4i-- e_A,1 --7,_.,
Print Name: Bonny L. W3ngate, his wge
/ t . . ._- p(A.4._"..7
+Print Name:
( '';
Print��N$me: Donald A. Wingate
Print Name:
C I
ii'rint Name: Carole P. Wingate, his wife
C4' _ é
;Print Name: 7
EXECUTED ON: Ce-77 a' , 1996
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CITY:
•
CITY OF OCOEE, a Florida
municipal corporation
By:
Print Name: S. Scott Vandergrift
Mayor
Attest:
Print Name: Jean Grafton
City Clerk
[AFFIX SEAL]
For use and reliance only by EXECUTED ON: , 1996
the City of Ocoee, Florida.
Approved as to form and legality
this day of 1996.
FOLEY & LARDNER APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON , 1996
By: UNDER AGENDA ITEM NO.
City Attorney
A:IWINGA-PU.AGRI9/17/96118E003 MAD:Iw
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PARCEL 102
A PARCEL OF LAND LOCATED IN SECTION 19. TOWNSHIP 22 SOUTH. RANGE 20 EAST BEING
A PORTION OF LOT 18, TOWN OF OCOEE. ACCORDING TO THE PLAT THEREOF. AS RECORDED
IN PLAT BOOK A . PAGES 100 AND 101 OF THE PUBLIC RECORDS OF ORANGE COUNTY,
FLORIDA AND BEING DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF
THE NORTHEAST QUARTER OF SAID SECTION 10 FOR A POINT OF REFERENCE;
THENCE RUN NORTH 01°06'02" EAST. ALONG THE EAST LINE OF SAID
SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, A DISTANCE OF 30.06
FEET: THENCE RUN SOUTH 00°53'50' EAST. 50.00 FEET TO THE POINT OF
INTERSECTION OF THE NORTH RIGHT-OF-WAY LINE OF GENEVA STREET WITH
THE EAST RIGHT-OF-WAY LINE OF KISSIMMEE AVENUE SAID POINT OF
INTERSECTION BEING THE POINT OF BEGINNING: THENCE RUN NORTH
01°06'02" EAST. ALONG SAID EAST RIGHT-OF-WAY LINE. 29.10 FEET; THENCE
RUN SOUTH 45°32°00" EAST, 35.74 FEET: THENCE RUN SOUTH 04°34'05'
EAST, 43.54 FEET TO A POINT LYING ON THE AFORESAID NORTH RIGHT-OF-
WAY LINE OF GENEVA STREET: THENCE RUN NORTH 09°59'55" WEST. ALONG
SAID NORTH RIGHT-OF-WAY LINE. 63.41 FEET TO THE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL OF LAND LIES IN THE CITY OF OCOEE. ORANGE COUNTY,
FLORIDA AND CONTAINS 522 SQUARE FEET. MORE OR LESS.
•
BIT A
•
That part of Lot 19 and 20 , Block 4 , lying West of
the railroad, LESS the South 110 . feet of said Lot
19 , Map of Ocoee , according to the plat thereof , as
recorded in Plat Book A, Pages 100 and 101 , of the
Official Records of Orange County , Florida, and •
Lot 18 , Block 4 , LESS the North 26 feet of the West
160 feet and LESS the West 20 feet for road right of
way , Map of Ocoee , according to the Plat thereof , as
recorded in Plat Book A , Pages 100 and 101 , of the
Official Records of Orange County , Florida.
EXHIBIT B