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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 -2- 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 2 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 3 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 4 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 5 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 6 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 7 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 9 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 10 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