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HomeMy WebLinkAboutVII (D) Approval of Purchase Contract with Joanne Poer Agenda 3-04-2003 Item VII D FOLEY I LARDNER MEMORANDUM CJENT•MATTER NUMBER 020377.0628 TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq., City Attorney XA---- DATE: February 24, 2003 RE: Purchase from Joanne M. Poer of Lands Adjacent to the Coca-Cola (Crown Point) Property Joanne M. Poer (the "Seller") owns approximately 34.6 acres of land (the "Seller's Land") which is adjacent to the City's proposed Crown Point PUD. The Seller's Land consists of uplands and wetlands is believed to be suitable for residential development and incorporation into the residential portion of the Crown Point PUD. As an adjacent land owner, the City staff believes that the City has the unique opportunity to maximize the development value of the Seller's Land and to utilize the additional residential units to reduce the per unit cost of the infrastructure improvements. To this end, the City obtained an appraisal of the Seller's Land from Clayton, Roper & Marshall. As of November 10, 2001, the Seller's Land had an appraised value of S215,000. In consideration of the appraisal date and a closing schedule which could make the appraisal almost two years old on the closing date, the City staff offered the Seller a purchase price which is 10% over the November 2001 appraisal, or 5236,500. The Seller accepted the City's proposal and the staff proceeded to draft a purchase contract for presentation to the City Commission. Attached hereto is a proposed Agreement for Sale and Purchase (the "Contract") which has been executed by the Seller. Should the City Commission approve the Contract, the staff would undertake an appropriate due diligence investigation (title, survey, environmental) and have its consultants evaluate the feasibility of adding the Seller's Land to the Crown Point PUD. This would provide the City with an analysis of the number of additional residential units which could be achieved on the Seller's Land. The proposed Contract provides the City with 120 days to conduct this investigation and within which the City may terminate the Contract for any reason whatsoever. The City staff would bring back a report to the City Commission prior to the expiration of this Inspection Period so that the City Commission could make a final decision on the purchase of the Seller's Land. Funding for the purchase would be from the financing package obtained in connection with the initial purchase of the Coke property. Highlights of the proposed Contract are as follows: 006.286972.1 FOLEY&LARDNER FOLEY : LARDNER (1) Purchase Price: $236,500. (2) The City is responsible for obtaining a title commitment and survey at the City's expense. (3) The City will have a 120 day Inspection Period. The City may terminate at ally time during the Inspection Period. (4) The obligation of the City to close is contingent upon annexation of the Seller's Land into the corporate limits of the City, and the obtaining of a Joint Planning Area Agreement amendment which brings the Seller's Land within the City's JPA with an underlying residential land use designation. The City has 210 days within which to obtain the foregoing approvals, at the City's expense. (5) Closing is on the later of 30 days after the expiration of the Inspection Period or the obtaining of the above-referenced Approvals, but in no event later than 240 days from the Effective Date. It is anticipated that the approvals will be obtained after the expiration of the Inspection Period and that closing will be in October 2003. The City staff supports the purchase of the Seller's Land and recommends approval by the City Commission. RECOMMENDATION: It respectfully is recommended that the City Commission approve the Agreement for Sale and Purchase between Joanne M. Poer, as Seller, and the City, as Buyer, and authorize execution thereof by the Mayor and City Clerk and further authorize the City staff to pursue all necessary due diligence investigations with respect to the real property and provide a report back to the City Commission prior to the expiration of the Inspection Period under the terms of the Contract with funding for the foregoing coming from the Coke property loan. PER/jed 2 006.286972.1 AGREEMENT FOR SALE AND PURCHASE BETWEEN JOANNE M POER ("SELLER") AND CM( OF OCOEE, a Florida municipal corporation ("PURCHASER") 006 281875.2 TABLE OF CONTENTS PAGE 1. RECITALS 11 2. AGREEMENT TO SELL AND PURCHASE. 1 3. THE PROPERTY. 1 4. PURCHASE PRICE AND METHOD OF PAYMENT.5. TITLE. 1 1 6. SURVEY 3 7. FEASIBILITY INVESTIGATION. 3 8. APPROVALS 4 9. CLOSING. 4 10. CONVEYANCE 4 11. EXPENSES, ASSESSMENTS AND PRORATIONS 12. DOCUMENTS TO BE DELIVERED AT CLOSING; POSSESSION 13. REPRESENTATIONS AND WARRANTIES OF SELLER 5 7 14. CONDITIONS OF CLOSINC 7 15. DEFAULT AND REMEDIES 8 16. BROKER'S COMMISSION. 8 17. NOTICES 9 18. FURTHER DOCUMENTATION 9 19. TIME IS OF THE ESSENCE 9 20. ASSIGNMENT. 9 21. PROCEEDS OF SALE AND CLOSING PROCEDURE. 10 22. ATTORNEYS' FEES. 10 23. ENTIRE AGREEMENT. 10 24. INTERPRETATION AND CONSTRUCTION 10 25. CONSTRUCTION OF AGREEMENT. 10 26. SURVIVAL OF OBLIGATIONS.27. RADON GAS. 10 110 28. EFFECTIVE DATE 11 29. MISCELLANEOUS 12 30. CITY COMMISSION APPROVAL CONTINGENCY LIST OF EXHIBITS EXHIBIT "A" - The Property AGREEMENT FOR SALE AND PURCHASE THIS AGREEMENT FOR SALE AND PURCHASE (this "Agreement") is made and entered into as of the day of , 2003 (the "Effective Date"), by and between JOANNE M.POER (hereinafter referred to as the "Seller") and CITY OF OCOEE, a Florida municipal corporation (hereinafter referred to as the "Purchaser"). WITNESSETH: WHEREAS, Seller is the record owner of fee simple title to certain real property located in Orange County, Florida and more particularly depicted and described in Exhibit "A" attached hereto and by this reference made a part hereof(the "Property"); and WHEREAS, Seller, on the terms and conditions set forth below, wishes to sell the Property to Purchaser. NOW, THEREFORE, in consideration of the premises, and in further consideration of the covenants and benefits flowing between the parties as set forth below, the Seller and Purchaser agree as follows: 1. RECITALS. The recitals set forth above are true and correct and are hereby incorporated into the terms of this Agreement by this reference. 2. AGREEMENT TO SELL AND PURCHASE. Seller agrees to sell the Property to Purchaser and Purchaser agrees to purchase the Property from Seller for the Purchase Price (as defined below) and on terms and conditions set forth in this Agreement. 3. THE PROPERTY. The Property consists of approximately 34.6 acres located in Orange County, Florida. 4. PURCHASE PRICE AND METHOD OF PAYMENT. Subject to credits, adjustments and prorations for which provisions are hereinafter made, the total price to be paid by Purchaser to Seller for the Property (hereinafter referred to as the "Purchase Price") shall be Two Hundred Thirty-six Thousand Five Hundred AND No/100 DOLLARS ($236,500.00). The Purchase Price shall be paid to Seller by Purchaser in the form of an official check, cashier's check or wire transfer. 5. TITLE. A. Within twenty (20) days after the Effective Date, Purchaser shall cause to be prepared an ALTA Form B Commitment showing good and marketable fee simple title to the Property vested in Seller in the amount of the Purchase Price for an owner's title insurance policy (the "Title Commitment") issued by First American Title Insurance Company (or such other title company acceptable to Purchaser) (the "Title Company") through its agent, Foley & Lardner. The costs of the Title Commitment, the owner's title insurance policy and any title searches or status of title reports/certificates and updates associated therewith shall be paid by Purchaser. Purchaser, at Purchaser's expense, may cause the Title Company to issue a simultaneous title insurance commitment to any institutional lender utilized by Purchaser in connection with its purchase of the Property. B. Within fourteen (14) days from Purchaser's receipt of the Title Commitment and the Survey, Purchaser shall deliver to Seller written notice of any title matters which are not acceptable to Purchaser (the "Title Objections"). If Purchaser raises any Title Objections, then Seller may, but has no obligation to, undertake reasonable and diligent efforts to cure and remove such Title Objections within forty-five (45) days after receipt of the Title Objections (the "Title Cure Period"). In the event an encumbrance or lien appears of record which will be discharged by Seller at or prior to Closing or from the Closing proceeds, then such encumbrance or lien will not be considered to be a Title Objection. In the event Seller cures such Title Objections within the Title Cure Period, then this transaction shall be closed on the later of (i) the Closing Date or (ii) twenty (20) days after written notice from Seller to Purchaser evidencing that such Title Objections have been cured. If, after the exercise of reasonable and diligent efforts, the Seller is unable to or chooses not to cure the Title Objections within the Title Cure Period (or such longer time period as Purchaser, in its sole discretion may elect), then Purchaser shall have the option to (i) terminate this Agreement by providing Seller with written notice of its intent to do so within ten (10) days after the expiration of the Title Cure Period thus rendering the Agreement of no further force and effect except as otherwise provided herein or (ii) waive such defect or defects and proceed to close, accepting title as it then is and without setoff or reduction in the Purchase Price. C. Notwithstanding anything contained herein to the contrary, Purchaser hereby acknowledges that since Purchaser owns adjacent land to Property, Purchaser may not raise as a Title Objection lack of access to and from a public road. D. At Closing, Seller shall provide the Title Company with such affidavit as is necessary to delete the standard exceptions in the Title Commitment including, without limitation, parties in possession, unified construction liens and unrecorded leases. 6. SURVEY. A. Within forty-five (45) days after the Effective Date, the Purchaser, shall obtain, at Purchaser's expense, a current boundary survey of the Property (the "Survey") prepared in accordance with the Minimum Technical Standards for Surveys in the State of Florida (Chapter 21 HH-6, Florida Administrative Code). B. Purchaser shall have fourteen (14) days from Purchaser's receipt of the Title Conmritment and the Survey and confirmation by Purchaser that such Survey is in compliance with the requirements of this Agreement (the `Survey Examination Period") to examine it. Purchaser shall within the Survey Examination Period notify Seller of any overlaps, encroachments, violations of contract covenants contained herein or other adverse matters revealed by the Survey indicating that the Property cannot be utilized for Purchaser's Intended Purposes or which are otherwise objectionable to Purchaser, in Purchaser's sole 2- 005.2818]5.2 discretion (the "Survey Objections"). If Purchaser raises any Survey Objections, they shall be treated in the same manner as Title Objections referenced in Section 5. 7. FEASIBILITY INVESTIGATION. A. Purchaser shall have one hundred twenty (120) days from the Effective Date (the "Inspection Period") within which to investigate the physical and economic feasibility of developing the Property including, without limitation, investigation of all applicable building, zoning, environmental and other codes, ordinances, statutes, rules and regulations affecting the Property, stormwater management, zoning and development standards, impact and development fees, drainage conditions, soils, other environmental factors, sewer and water utility capacity and availability factors, market demand, and any other factors whatsoever considered appropriate by Purchaser, in its sole and absolute discretion, to determine overall project feasibility. For the purposes of conducting this investigation, Purchaser shall have the right, both during the Inspection Period and prior to the Closing Date, to personally or through agents, employees, and independent contractors, to enter upon the Property for the purposes of inspecting the Property, making additional surveys, soil tests, test borings, topographical studies and conducting such other investigations of the Property and/or engineering work which Purchaser deems appropriate. B. Purchaser shall assume all risks involved in entering upon the Property for the performance of such activities and shall to the extent permitted by law indemnify and hold Seller harmless from and against all loss, liability, costs, claims, demands, damages, actions, causes of action, suits and expenses arising out of, related to or caused by Purchaser in the exercise of any of Purchaser's rights under this section. Upon request of Seller, the Purchaser shall, at its sole cost and expense, restore the Property to its original condition in the event this Agreement fails to close. C. In the event Purchaser determines, in its sole discretion that it is not desirable or feasible to develop the Property or that it is not satisfied as to any other matters set forth in this section, or any other matters which Purchaser deems relevant, then in such event Purchaser may, in Purchaser's sole discretion, elect to terminate this Agreement by furnishing written notice thereof to Seller prior to the expiration of the Inspection Period and in such event the parties hereto shall thereafter be relieved of all rights and obligations hereunder except for those rights and obligations which expressly survive the termination of this Agreement. 8. APPROVALS. Purchaser shall have two hundred ten (210) days from the Effective Date (the "Approval Period") within which, at Purchaser's sole cost and expense, to annex the Property into the City of Ocoee, process an amendment to the Joint Planning Area Agreement between the City of Ocoee and Orange County, Florida (the "JPA") which brings the Property within the JPA with an underlying residential land use designation (the "Approvals"). Seller agrees to take all reasonable steps necessary in facilitating the Purchaser in obtaining the Approvals, including executing all required applications as reasonably requested by the City of Ocoee. In the event Purchaser is not able to obtain the Approvals 3- 006.201875.2 within the Approval Period then in such event Purchaser may, in Purchaser's sole discretion, elect to terminate this Agreement by furnishing written notice thereof to Seller prior to the expiration of the Approval Period and in such event the parties hereto shall thereafter be relieved of all rights and obligations hereunder except for those rights and obligations which expressly survive the termination of this Agreement. 9. CLOSING. A. Subject to Section 5.B herein, which may extend the date, the sale and purchase transaction contemplated by this Agreement shall be closed (the "Closing"), the Purchase Price paid, and the deed and other closing documents delivered at 10:00 a.m. on the later of: (i) thirty (30) days after all required Approvals are obtained for the Property, or (ii) thirty (30) days from the expiration of the Inspection Period (hereinafter referred to as the "Closing Date"). B. Notwithstanding the foregoing, unless otherwise agreed to by Seller and Purchaser, in no event shall the Closing Date be later than two hundred forty (240) days from the Effective Date. C. The Closing shall take place at the offices of Foley & Lardner, I 1 1 North Orange Avenue, Suite 1800, Orlando, Florida 32801, unless otherwise agreed to by Seller and Purchaser. 10. CONVEYANCE. The Seller shall convey marketable fee simple title to the Property to the Purchaser at Closing by Warranty Deed (the "Deed") free and clear of all liens and encumbrances except for those matters accepted by Purchaser and other matters expressly set forth in this Agreement. The legal description set forth on the Survey shall be the legal description attached to the Deed, other closing documents and Title Policy. The Deed shall transfer all of the Seller's interest in and to all licenses, approvals, tenements, hereditaments and appurtenances belonging or in anywise appertaining to the Property, including without limitation of the foregoing, all right, title and interest of the Seller in and to any land lying in the bed of any dedicated street, alley, road or avenue (before or after vacation thereof, and whether previously abandoned or vacated or hereafter abandoned or vacated) in front of or adjoining the Property to the center line thereof. 11. EXPENSES, ASSESSMENTS AND PRORATIONS. A. Purchaser shall pay for documentary stamps required to be affixed to the Deed and for the costs incurred in recording the Deed. The Seller shall pay the cost of recording any corrective instruments. All other recording costs with respect to any closing documents which are to be recorded shall be paid by Purchaser. The Purchaser shall prepare and pay for the preparation of all necessary closing documents. B. 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 Purchaser and the prorated amount shall be paid by the Seller and shall be escrowed in accordance with the 4- 006.2818]5.2 provisions of Section 196.295, Florida Statutes. Notwithstanding the foregoing, if the Closing occurs between November 1 and December 31, then Seller shall pay all ad valorem taxes for the entire year of the Closing. C. Seller shall pay for all certified, confirmed and ratified special assessment liens, if any, existing as of the day before the Closing Date. 12. DOCUMENTS TO BE DELIVERED AT CLOSING; POSSESSION. A. In addition to the other documents required to be executed by Seller at Closing, the Seller shall, execute and acknowledge, where necessary, and deliver to Purchaser the following documents at the Closing hereunder: (i) A No-Lien Affidavit sufficient to eliminate the standard exceptions set forth in the Title Commitment. (ii) An Affidavit stating that Seller is not a "foreign person" pursuant to Section 1445(b)(2) of the Internal Revenue Code. B. Purchaser and Seller shall each execute and acknowledge, where necessary, and deliver to each other at Closing such additional documents as may be required under the terms of this Agreement. C. Sole and exclusive possession of the Property shall he granted to Purchaser from Seller at Closing. 13. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to Purchaser that each of the following are true and correct as of the date hereof and shall be true and correct as of the Closing Date as if such representations and warranties were made on the Closing Date, and each of the following shall be deemed independently material and shall survive the Closing: A. The Seller owns marketable fee simple title to the Property and the Seller's execution, delivery and/or performance of this Agreement is not prohibited by and will not cause a default under any other agreement, covenant, document or instrument. B. The Seller has not received any notice that the continued ownership, operation, use and occupancy of the Property violates any zoning, building, health, flood control, fire or other law, ordinance, order or regulation or any restrictive covenants. The Seller has no actual knowledge of violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement, affecting all or any portion of the Property and the Seller has received no written notice of any such violation issued by any governmental authority. C. There are no parties in possession of all or any portion of the Property, as the case may be, as lessees, tenants at sufferance, licensees or trespassers; or if there are 5- 006.281875 2 parties in possession, said parties will vacate the Property at or prior to Closing unless otherwise expressly provided herein. D. All work, labor, services and materials furnished prior to Closing to or in connection with the Property at Seller's request and any improvements constructed thereon prior to Closing will be discharged by Seller at or prior to Closing, so that no mechanics, materialmen or other lien may constitute a claim against the Property or such improvements. E. Seller has the full power and authority to make, deliver, enter into and perform pursuant to the terms and conditions of this Agreement and has taken all necessary action or its equivalent to authorize the execution, delivery and performance of the terms and conditions of this Agreement. F. There is not now, any action, suit or proceeding pending, or threatened against or affecting the Property or any portion thereof, or relating to or arising out of the ownership or development of the Property, in any court or before any federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality. G. Seller has not granted any license, lease or other right relating to the use or possession of the Property. H. Seller has not received any notice from any governmental agency or entity or other person or entity that any hazardous or toxic wastes or materials are or may he present in, on, or under the Property. I. To the best of Seller's knowledge, the Property has never been used for the storage, generation, transportation or disposal of any hazardous or toxic wastes or materials are present in, on, or under the Property in quantities which violate any applicable governmental standards. As used herein "hazardous or toxic wastes" shall mean and refer to any substances or materials which are regulated by or subject to regulation by any local, state, or federal agencies or entities, pursuant to any law, statute, ordinance, rule or regulation. J. Seller has the full legal power to convey the Property as provided herein, without any other consent or proceeding required from any other person, entity or organization which has not been obtained. K. From and after the date hereof, Seller shall refrain from (i) performing any excavation work or tree removal on the Property; (ii) making any material changes on or about the Property other than as required by this Agreement; (iii) creating and incurring or permitting to exist any mortgage, lien, pledge or other encumbrance in any way affecting the Property; (iv) committing any waste or nuisance on the Property; or (v) entering into any lease of all or any part of the Property. L. From and after the date hereof, and at any time prior to transfer of title to Purchaser, Seller shall not grant, sell or convey any interest in the Property, including 6- 006.281875.2 easements or rights of way, to any person, corporation (public or private), governmental body or political subdivision except as required by this Agreement without the written permission of Purchaser. M. No member of the City Commission of the City of Ocoee, no agent or employee of Purchaser, 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, or receive any portion of the payments to be made to Seller under the provisions of this Agreement. 14. CONDITIONS OF CLOSING. Purchaser's obligation to close on the Property is conditioned on the following: A. All of the representations and warranties made by Seller shall be true and correct; B. Seller shall have performed and complied with all obligations of this Agreement which are to be performed or complied with by Seller prior to closing; and C. Purchaser having obtained the Approvals within the Approval Period. 15. DEFAULT AND REMEDIES. A. Purchaser shall be in default hereunder if Purchaser shall fail to make any of the payments required to be made hereunder by Purchaser to Seller or if Purchaser shall, in any material respect, fail to comply with any term, provision or condition of this Agreement and Purchaser fails to correct such default within ten (10) days after receiving written notice from Seller. If the sale contemplated by this Agreement is not consummated because of Purchaser's default, then Seller shall have the right as its sole and exclusive remedy to sue Purchaser for specific performance of this Agreement. In no event may Seller bring a claim for damages against Purchaser in the event of a Purchaser default. It shall be an event of default if Purchaser is either adjudicated bankrupt under state or federal laws, or voluntarily declares bankruptcy. B. Seller shall be in default hereunder if at any time during the continuance of this Agreement Seller shall, in any material respect, fail to comply with any term, provision or condition of this Agreement, or if any of the representations and warranties made by Seller herein shall be, in any material respect, misleading, inaccurate or untrue and Seller fails to correct such within ten (10) days after receiving written notice from Purchaser. If the sale contemplated by this Agreement is not consummated because of Seller's default then Purchaser shall elect as its sole remedy either (i) to terminate this Agreement, in which case the parties shall have no further rights or obligations hereunder, except for those rights and obligations which expressly survive termination of this Agreement or (ii) to seek specific performance of this Agreement. -7- 006.2818r5.2 16. BROKER'S COMMISSION. A. The Seller represents and warrants to the Purchaser that it is not aware of any person or entity which would be entitled to a commission, compensation or brokerage fee for the bringing about of this transaction or the consummation hereof. Seller agrees to indemnify and to hold Purchaser harmless from any such commissions, fees or compensation which may be claimed to be due through the Seller or pursuant to the acts of Seller or Seller's representatives. Seller further covenants and agrees to indemnify Purchaser for damages, court costs and reasonable attorneys' fees and paralegal fees, at both the trial and appellate levels, incurred as a result of any such claim. B. The Purchaser represents and warrants to Seller that it is not aware of any person or entity which would be entitled to a commission, compensation or brokerage fee for the bringing about of this transaction or the consummation hereof. To the extent permitted by law, Purchaser agrees to indemnify and to hold Seller harmless from any such commissions, fees or compensation which may be claimed to he due through the Purchaser or pursuant to the acts of Purchaser or Purchaser's representatives. To the extent permitted by law, Purchaser further covenants and agrees to indemnify Seller for damages, court costs and reasonable attorneys' fees and paralegal fees, at both the trial and appellate levels, incurred as a result of any such claim. C. The provisions of this paragraph shall survive the termination of this Agreement. 17. NOTICES. All notices, consents, approvals, waivers and elections which any party shall be requested or shall desire to make or give under this Agreement shall be in writing and shall be given only by (i) hand delivery, (ii) next day delivery by nationally recognized package delivery service, or (iii) by facsimile transmission, with confirmation of receipt. Notices, including notice of a change of address or phone number, shall be addressed or transmitted to the addresses set forth below, or that a party may otherwise designate in the manner prescribed herein: AS TO SELLER: Joanne M.Poer Telephone: ( ) Fax: ( ) 006.281075 2 8- AS TO PURCHASER: City of Ocoee 150 N. Lakeshore Drive Ocoee, Florida 34761 Attention: Russ Wagner, Director of Community Development Telephone: (407) 905-3100 Fax: (407) 656-8504 with copy to: Paul E. Rosenthal, Esq. Foley & Lardner 111 N. Orange Avenue, Suite 1800 Orlando, Florida 32801 Telephone: (407) 423-7656 Fax: (407) 648-1743 Notices, consents, approvals, waivers and elections shall be deemed given when received by the party for whom intended at such party's address first herein specified, or such address as such party may have substituted therefore by notice to the other. 18. FURTHER DOCUMENTATION. The parties agree that at any time 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 obligations under the provisions of this paragraph shall survive the Closing. 19. TIME IS OF THE ESSENCE. Time is of the essence with respect to all matters set forth in this Agreement. Time periods herein of less than ten (10) days shall not include Saturdays, Sundays and legal holidays and any time period provided for herein which shall end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the next business day. All time references contained herein shall refer to the local time in effect in Orange County, Florida. 20. ASSIGNMENT. Other than as set forth below, this Agreement is not assignable. Purchaser may partially assign this Agreement to the St. Johns River Water Management District ("SJRWMD") and allocate a portion of the Purchase Price between Purchaser and SJRWMD as mutually agreed upon by Purchaser and SJRWMD. In such partial assignment a portion of the Property shall be conveyed directly to SJRWMD by Seller as requested by Purchaser. 21. PROCEEDS OF SALE AND CLOSING PROCEDURE. The Tile Company issuing title insurance to Purchaser with respect to the Property shall insure against adverse title matters pursuant to Section 627.7841, Florida Statutes, (Le., the "gap" will be insured). Purchaser agrees that the proceeds payable to Seller will be disbursed to Seller at Closing if gap coverage is provided. 9- 006.2818752 22. ATTORNEYS' FEES. A. In the event that either party finds it necessary to commence an action against the other party to enforce any provision of this Agreement or because of a breach by the other party of any of the terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorneys' fees, paralegal fees, and costs incurred in connection therewith, at both trial and appellate levels, including bankruptcy proceedings and the right to such reasonable attorneys' fees, paralegal fees, and costs shall be deemed to have accrued from the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. B. Each party shall bear its own legal expenses in connection with the negotiation and closing of this Agreement. 23. ENTIRE AGREEMENT. This Agreement embodies and constitutes the entire understandings of the parties with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provisions hereof may be waived, modified, amended, discharged, or terminated except by an instrument in writing signed by the party against whom the enforcement of such waiver, modification, amendment, discharge, or termination is sought, and then only to the extent set forth in such instrument. 24. INTERPRETATION AND CONSTRUCTION. IT IS STIPULATED AND AGREED BETWEEN THE PARTIES THAT THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA AND ANY TRIAL OR OTHER PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL TAKE PLACE IN THE STATE OF FLORIDA. In this Agreement, single number includes the plural, and the words "person" and "party" include corporation, partnership, joint venture firm, association, public body or quasi-public body wherever the context so requires. Captions of the paragraphs and subparagraphs of this Agreement are for convenience and reference only, and the words contained therein shall in no way he held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement. 25. CONSTRUCTION OF AGREEMENT. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that both the Seller and the Purchaser have contributed substantially and materially to the preparation hereof. 26. SURVIVAL OF OBLIGATIONS. Only those provision of this Agreement which expressly so state shall survive Closing under this Agreement. 27. 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 10- 006.281875 2 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 he obtained from your county public health unit. 28. EFFECTIVE DATE. The Effective Date of this Agreement shall be the date it is approved by the City Commission of the City of Ocoee and such date shall be inserted on the first page hereof. 29. MISCELLANEOUS. A. Severability. If all or any portion of the provision of this Agreement shall be declared invalid and if the intent of this Agreement is not thereby precluded, then such invalid portion shall be ineffective and unenforceable without invalidating the remaining provisions hereof. B. Persons Bound. This Agreement shall bind and inure to the benefit and burden of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. C. Venue. The parties hereto stipulate and agree that the venue of any litigation arising hereunder shall be in the Florida Circuit Court for Orange County. D. Cooperation. The Seller agrees, at no cost or expense to the Seller, to cooperate with the Purchaser in the preparation, fling and processing of any application, plan or request relating to the Property filed by or on behalf of the Purchaser prior to or after the Closing Date, if such application, plan or process is necessary to the development of the Property for Purchaser's Intended Purposes. Seller's obligations under the provisions of this subparagraph shall survive the Closing. E. Materiality. All covenants, agreements, representations and warranties made herein shall be deemed to have been material and relied on by each party to this Agreement. F. Headings. All sections and descriptive headings in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation hereof. G. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but all counterparts shall together constitute one and the same instrument. H. Waiver of Default. The waiver of any breach or default under any of the terms of this Agreement shall not be deemed to be, nor shall the same constitute, a waiver of any subsequent breach or default. I. Time. Time is of the essence of all of the provisions and terms of this Agreement. 006 2818I5.2 -I I- J. Tax Deferred Exchange. Each party agrees to cooperate with the other to effect a tax deferred exchange, if necessary, under the provisions of Section 1031 of the Internal Revenue Code of 1986, as amended, provided such exchange is without cost or expense to the cooperating party and the exchanging party indemnifies and holds the cooperating party harmless from and against any cost or expense or other liability, tax or action which may be incurred solely as a result of such exchange. K. Maintenance of Property. Through Closing, Seller shall maintain the Property in substantially the same condition as it presently exists and shall carry reasonable amounts of liability insurance on the Property. L. Non-Waiver of Sovereign Immunity. Nothing contained in this Agreement or in any instruments executed pursuant to the terms of this Agreement shall be construed as a waiver or attempted waiver by the Purchaser of its sovereign immunity under the constitution and laws of the State of Florida; provided, however, that this paragraph shall not be construed as an attempt by the Purchaser to negate any partial waiver of sovereign immunity made by the Legislature under the provisions of The Tort Claims Act, Section 768.28, Florida Statutes or any future statute or Act adopted by the Florida Legislature M. Disclosure of Beneficial Interest. Contemporaneous with the execution of this Agreement, Seller shall deliver to the Purchaser a public disclosure of its beneficial ownership which shall comply with the requirements set forth in Section 286.23, Florida Statutes. This Agreement constitutes a written notice from the Purchaser to Seller requesting the foregoing disclosure and informing Seller that such disclosure must be made under oath, subject to the penalties prescribed for perjury. 30. CITY COMMISSION APPROVAL CONTINGENCY. The Purchaser is executing this Agreement prior to approval by the City Commission of the City of Ocoee. In the event the City Commission of the City of Ocoee does not approve and execute this Agreement on or before twenty-one (21) days from the Effective Date, then the Purchaser's execution hereof shall be automatically terminated. IN WITNESS WHEREOF, the parties have caused these presents to be executed as of the day and year first written above. PURCHASER: SELLER: CITY OF OCOEE, a Florida municipal corporation By: /./iu. : / &4 James Gleason J 11 NNE M. POER City Manager 006 281875 2 -12 This Agreement is approved by the City Commission of the City of Ocoee. CITY OF OCOEE, a Florida municipal corporation By: S. Scott Vandergrift, Mayor For use and reliance only by the City of Ocoee, APPROVED BY THE OCOEE CPPY Florida. Approved as to form and legality this COMMISSION AT A MEETING HELD day of , 2003. ON , 2003 UNDER AGENDA ITEM NO. FOLLY & LARDNER By: City Attorney 006.281875.2 -13- EXHIBIT "A" THE PROPERTY Begin at the quarter section post of South Boundary of Section 1, Township 22 S, Range 27 East, run thence North 904.86 Ft, thence East 1683 ft., thence South 904.86 ft., thence West 1683 Ft to point of beginning, LESS, begin at a point 957 feet West and 904.86 ft. North of the SE corner of Section 1, Township 22 S, Range 27 E, run thence West 1200 feet, thence South 16 feet, thence SEly 1201.9 feet to a point due South of the point beginning thence North 82 feet to the point of beginning 0062818752