HomeMy WebLinkAboutItem #10 Wurst Road Extension
AGENDA ITEM COVER SHEET
Meeting Date: July 18, 2006
Item # to
Contact Name:
Contact Number:
Jamie Croteau
Reviewed By:
Department Director: #fIL-----
(407) 905 - 3117
City Manager:
Robert D. Frank
Subject: Purchase of 36.97 acres at 951 Ocoee-Apopka Road for future Wurst Road extension
and City park facility.
Background Summary:
Earlier this year staff was made aware that the 36.97 acres located at 951 Ocoee-Apopka Road was on the
market. This property is of interest to the City for two reasons. First, the property was sited for the future
extension of Wurst Road. Second, its size and location next to the existing softball complex make it an excellent
candidate for a future park complex. The cost for the property is $2,000,000 with the appraised price being
$2,035,000. The cost for the property and the cost for the development of the park would be paid for by current
and future park impact fees. The cost for development of the park is anticipated to be in the $2,000,000 range.
The property houses an eagles' nest and staff has worked with the U.S. Fish and Wildlife Service to insure that
the future plans for the property would not adversely impact the nest. In working with the Fish and Wildlife
Service it was necessary to complete a conceptual master plan for the park. That master plan is attached. It
provides for the future extension of Wurst Road on the northern end of the property and a softball complex on
the southern portion. The proposed park would also contain picnic shelters, restrooms, two playgrounds and
two basket ball courts.
The attached Agreement for Purchase and Sale contains the specific of the purchase and includes a Post
Closing Occupancy Agreement (Exhibit B) that allows the current owner to remain on the property for up to six
months.
Issue:
Should the City purchase the 36.97 acres located at 951 Ocoee-Apopka Road for the future extension of Wurst
Road and new park facility?
Recommendation:
Staff recommends approval of the Agreement of Purchase and Sale for the 36.97 acres located at 951 Ocoee-
Apopka Road.
Attachments:
Agreement of Purchase and Sale
Conceptual Site Plan
Financial Impact:
Approximately $4,000,000 of park impact fees.
Type of Item: (please mark with an "x'J
X Public Hearing
_ Ordinance First Reading
Ordinance Second Reading
Resolution
Commission Approval
Discussion & Direction
For Clerk's Deot Use:
_ Consent Agenda
_ Public Hearing
_ Regular Agenda
_ Original Document/Contract Attached for Execution by City Clerk
_ Original Document/Contract Held by Department for Execution
Reviewed by City Attorney
Reviewed by Finance Dept.
Reviewed by ( )
N/A
N/A
N/A
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
.-
entered into as of the -J..S:- day of .~ Un e
, 2006 by and between BRENDA
BRACEWELL ROGERS (hereinafter referred to as "Seller") and the CITY OF OCOEE, a
Florida municipal corporation (hereinafter referred to as "Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of the fee simple title to certain real property, and all
improvements therein, 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, Seller, under threat of condemnation, has agreed to sell to Buyer, and
Buyer has agreed to purchase from Seller, the Property, together with any and all improvements,
structures, fixtures and appurtenances thereto on the terms and conditions stated below.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
hereinafter contained, and other good and valuable considerations, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, each intending to be legally bound, do hereby
warrant and agree as follows:
1. The Purchase. Seller agrees to sell, and the Buyer agrees to purchase, on the terms
and conditions hereinafter set forth, the Property, in fee simple, subject only to those title matters
accepted by Buyer, together with all of the tenements, hereditaments, improvements, fixtures,
oil, gas and mineral rights, canals, ditches, roads and easements, appertaining thereto and all of
the Seller's right, title and interest therein, including all right, title and interest of Seller in and to
ORLA_ 403652.4
5/2//06
any land lying in the bed of any street, alley, road or avenue (before or after vacation thereof, and
whether previously abandoned or vacated or hereafter abandoned or vacated).
2. Earnest Monev Deposit; Handlin!! of Escrow.
(A) Within thirty (30) days of the Effective Date, Buyer shall deliver to Foley &
Lardner LLP, 111 N. Orange Avenue, Suite 1800, Orlando, Florida, 32801, as escrow agent (the
"Escrow Agent"), the sum of TWENTY-FIVE THOUSAND AND NO/IOO DOLLARS
($25,000.00) (the "Deposit"). If this Agreement is terminated by Buyer during the Due
Diligence Period or pursuant to Sections 6, 14 or 28 hereof, the Escrow Agent shall immediately
return the Deposit to Buyer whereupon this Agreement shall be terminated and the parties shall
be relived of all further rights and obligations hereunder except for those that expressly survive
the termination of this Agreement. Upon expiration of the Due Diligence Period, the Deposit
shall be "at risk" and "non-refundable" to Buyer except as expressly set forth herein. The
Deposit shall be applied against the Purchase Price at Closing.
(B) The Deposit shall be held in escrow by the Escrow Agent, subject to clearance
of funds, in an interest bearing account at a federally insured bank in accordance with and
subject to the terms and conditions of this Agreement. Any interest earned on the Deposit shall
be reported under Buyer's federal employer identification number and entitlement to such
interest shall follow the Deposit. Buyer shall execute a Form W-9 and shall deliver such form
along with the Deposit. The Escrow Agent shall not be required to place the Deposit in an
interest bearing account until it receives said Form W-9, together with any other information
required by the bank to open the account. All references herein to the Deposit shall be deemed
to include all interest earned thereon, less any applicable bank maintenance and service charges.
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ORLA_ 403652.4
(C) Escrow Agent agrees to perform its duties as required by this Agreement. At
the time of Closing, the Escrow Agent shall pay over to the Closing Agent the Deposit held by
the Escrow Agent under this Agreement. In the event of a dispute as to the payment of the
Deposit or if the Escrow Agent is in doubt as to its duties or liabilities under the provisions of
this Agreement, the Escrow Agent shall continue to hold the Deposit until the parties mutually
agree as to the distribution thereof or until a judgment of a court of competent jurisdiction
determines the rights of the parties thereto. Alternatively, the Escrow Agent may interplead the
Deposit into the Registry of the Circuit Court of Orange County, Florida, without further liability
or responsibility on the Escrow Agent's part. In the event of any suit between Buyer and Seller
wherein the Escrow Agent is made a party by virtue of acting as such Escrow Agent or in the
event of any suit in which the Escrow Agent interpleads the subject matter of this escrow, the
Escrow Agent shall be entitled to recover its costs in connection therewith, including reasonable
attorneys' fees and costs incurred in all trial, appellate and bankruptcy court proceedings, said
fees and costs to be charged and assessed as court costs in favor of the. prevailing party. All
parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for
misdelivery to Buyer or Seller of monies subject to this escrow, unless such misdelivery shall be
due to willful breach of this Agreement or gross negligence on the part of the Escrow Agent.
Seller and Buyer agree that the status of the Escrow Agent as legal counsel for Buyer does
not disqualify such law firm from representing the Buyer in connection with this
transaction and any dispute that may arise between Buyer and Seller concerning this
transaction, including any dispute or controversy with respect to the Deposit, and Seller
hereby irrevocably waives any right it may otherwise have to object to such representation.
This Section 2(C) shall survive the Closing.
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ORLA_ 403652.4
3. Purchase Price.
(A) The purchase price of the Property shall be TWO MILLION AND NO/tOO
DOLLARS ($2,000,000.00) (the "Purchase Price"). The parties hereto agree that the Purchase
Price will be allocated as follows: (a) $800,000 will be allocated towards a 10 acre tract of the
Property and the house located thereon, and (b) $1,200,000 will be allocated towards the
remaining portion of the Property.
(B) The Purchase Price (or such greater or lesser amount as may be necessary to
complete payment of the Purchase Price after escrows, deductions, credits, adjustments and
prorations) shall be paid to Foley & Lardner, as Closing Agent (the "Closing Agent") at the
Closing by wire transfer or by Buyer's check for which funds are immediately available. The
Closing Agent shall disburse such funds in accordance with the provisions of this Agreement.
The net proceeds payable to Seller (after escrows, deductions, credits, adjustments and
prorations) shall be disbursed by wire transfer or trust account check (as determined by Seller) in
accordance with the written instructions of the Seller to Buyer and the Closing Agent.
4. Title. Survey and Legal Descrivtion.
(A) Within thirty (30) days after the Effective Date, Buyer shall obtain an owner's
title insurance commitment (the "Title Commitment") in the amount of the Purchase Price for an
owner's title insurance policy (ALTA Form B) (the "Title Policy") showing good and
marketable fee simple title to the Property vested in Seller, subject only to those matters
expressly set forth in this Agreement and such other matters as may be agreed to by Buyer. The
Title Commitment shall include copies of all exceptions of record noted therein. The cost of the
Title Commitment, Title Policy and any title searches or status of title reports/certificates and
updates associated therewith shall be paid by Buyer.
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ORLA_ 403652.4
(B) During the Due Diligence Period, Buyer shall obtain, at Buyer's expense, a
boundary survey of the Property in accordance with the Minimum Technical Standards for
Surveys in the State of Florida (Chapter 61 G 17 -6, Florida Administrative Code) (the "Survey").
(C) Within twenty (20) days from Buyer's receipt of both the Survey and Title
Commitment, Buyer (or Buyer's counsel) shall deliver to Seller (or Seller's counsel) a copy of
the Title Commitment, and two (2) copies of the Survey, and a letter notifying Seller of: (i) any
title defects and/or title matters which are not acceptable to Buyer ("Title Objections"); and (ii)
overlaps, encroachments, violations of contract covenants or other adverse matters revealed by
the Survey ("Survey Objections"). Without limiting Buyer's rights contained herein, in case of a
lien or encumbrance on any portion of the Property which at the time of the Closing is a
liquidated amount, Seller covenants and agrees to remove such lien or encumbrance at the
Closing so that the applicable interest in the Property will be conveyed to Buyer free and clear of
same and in such event said liens and encumbrances shall not constitute Title Objections.
(D) If Buyer raises any Title Objections or Survey Objections, then Seller shall, at
Seller's expense, undertake reasonable and diligent efforts to cure and remove any such Title and
Survey Objections by the end of the Due Diligence Period. If, after the exercise of reasonable
efforts and due diligence and upon the expiration of the Due Diligence Period, the Seller has not
cured and removed any such Title and Survey Objections, then Buyer shall have the option to
either (i) terminate this Agreement, whereupon the Deposit will be returned to Buyer and the
parties shall be relieved of all further obligations under this Agreement except for those that
expressly survive the termination of this Agreement, or (ii) proceed to Closing, accepting title as
it then is without setoff or reduction in the Purchase Price.b
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ORLA_ 403652.4
(E) The legal description (or descriptions) of the Property as set forth on the
Survey shall be utilized in the Title Commitment, Title Policy, deed and all other closing
documents provided the surveyor certifies that such legal descriptions describe the same land as
described in the instruments by which Seller acquired title to the Property.
(F) The Title Commitment shall be endorsed or "marked-up" at the Closing so as
to show title to the Property in Buyer as required herein. The title insurer shall provide gap
coverage insuring against adverse title matters pursuant to Section 627.7841, Florida Statutes.
Upon the Closing and recording of the deed to Buyer, the Title Policy shall be issued pursuant to
the Title Commitment and delivered to Buyer so as to show title in Buyer as required herein.
Upon execution by Seller, at Closing, of the Affidavit required by the title company and
completion of the Survey, the "standard exceptions" to the Title Policy shall be deleted, except
for matters actually shown on the Survey.
5. Buyer's Due Dili2ence Period. This Agreement is contingent upon the completion
.
of feasibility and other investigations to the satisfaction of Buyer, in its sole discretion. Buyer
shall have a period of ninety (90) days from the Effective Date of this Agreement (the "Due
Diligence Period") in which to undertake any and all tests and investigations which Buyer, in its
sole discretion, deems appropriate in determining the suitability of the Property for Buyer's
intended use. If Buyer, in its sole discretion, determines that the Property is unacceptable to
Buyer for any reason whatsoever, then Buyer may elect to terminate this Agreement by
furnishing written notice thereof to Seller no later than 5:00 p.m. on the last day of the Due
Diligence Period, and in such event, the Deposit shall be returned to Buyer and this Agreement
shall thereupon be terminated and the parties shall be relieved of all further rights and obligations
hereunder, except for those rights and obligations which expressly survive the termination of this
Agreement. By way of cooperating with the Buyer in its examination of the feasibility of
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ORLA_ 403652.4
developing and using the Property, within ten (10) days of the Effective Date, Seller shall deliver
to Buyer all documents in Seller's possession relevant to or pertaining to the Property. From the
Effective Date hereof through the Closing Date, Buyer through its agents, contractors,
consultants and employees, will be authorized to enter upon the Property for the purpose of
access to the Property in order to conduct scientific investigations, the installation of monitoring
wells, environmental assessment audits, surveying, the taking of soil borings and soil samples,
inspections, the taking of water samples, geophysical investigations, the testing of tanks, and
conducting such other investigations, inquiries and testing as Buyer may deem appropriate;
provided, that any such agents, contractors, consultants or employees of Buyer shall give
reasonable advance notice to Seller and shall be responsible to close and lock any gates through
which they pass in the exercise of such right of entry. Any boring holes made by the Buyer shall
be properly filled and packed to the surrounding earth level by the Buyer. Buyer further agrees,
to the extent permitted by law, to assume all risks involved and to be fully responsible for the
safety of its agents, contractors, consultants and employees, hereby releasing, saving and
discharging Seller, its successors and assigns, from any and all claims and demands of whatever
nature, whether for personal injury or death of employees or loss of or damage to personal
property, and hereby assuming full responsibility for any accident, death, dismemberment,
temporary or permanent disability resulting to any of its agents, contractors, consultants and
employees as a result of the authorizations granted by this Agreement. The indemnities provided
by this paragraph shall be limited by applicable law and shall survive the termination of this
Agreement.
6. Auuraisal. Buyer, at Buyer's expense, will arrange for and obtain a written appraisal
(the "Appraisal") of the Property by an independent appraiser. Within ten (10) days of receipt
thereof, Buyer will deliver to Seller a copy of the Appraisal. If the Appraisal indicates that that
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ORLA_ 403652.4
the market value of the Property is less than the Purchase Price, then Buyer, may during the Due
Diligence Period, but shall not be required to terminate this Agreement in which case the Deposit
shall be returned to the Buyer and the parties hereto shall be relieved of all obligations hereunder
except for those obligations which expressly survive the termination of this Agreement.
7. Seller's Representations and Warranties. Seller represents and warrants to Buyer
that the following statements are true and correct, and Buyer's obligation to close shall be
conditioned on the same being true and correct as of the Closing Date:
(A) Seller has full power and authority to enter into and perform this Agreement
in accordance with its terms and has taken all necessary action or its equivalent to authorize the
execution, delivery and performance of the terms and conditions of this Agreement.
(B) Seller owns marketable fee simple title to the Property and 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.
(C) Seller has no actual knowledge of or has not received any notice of the
existence of any dangerous or illegal condition with respect to the Property requiring corrective
action.
(D) 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.
(E) To the best of Seller's knowledge, there has not been and there it not now: (i)
any presence of any Hazardous Substance (as hereinafter defined) on, over, or under the
Property; (ii) any present or past generation, recycling, reuse, sale, storage, handling, transport
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ORLA_ 403652.4
and/or disposal of any Hazardous Substance on, over, or under the Property; (iii) any failure to
comply with any applicable local, state or Environmental Laws (as hereinafter defined); or (iv)
any spills, releases, discharges or disposal of Hazardous Substances that have occurred or are
presently occurring on or onto the Property. For purposes of this Section, the term "Hazardous
Substances" means and includes, without limitation, any toxic or hazardous substances or
materials, petroleum or other pollutants and substances, whether or not naturally occurring,
including, without limitation, asbestos, radon, and methane gas, generated, treated, stored, or
disposed of, or otherwise deposited in or located on or under the Property, and also includes,
without limitation, the surface and subsurface waters of the Property, if any, and any activity
undertaken or hereafter undertaken on the Property which would cause: (i) the Property to
become a hazardous waste treatment, storage or disposal facility within the meaning of any
Environmental Law; (ii) a release or threatened release of hazardous waste from the Property
within the ambit of any Environmental Law; (iii) the discharge into the air of any emissions
which would require a permit under any Environmental Law; or (iv) any substances or
conditions in, on, or under the Property which may support a claim or cause of action under any
Environmental Law. For the purpose of this Agreement, the term "Environmental Law" shall
mean all federal, state and local laws, including statutes, regulations, ordinances, codes, rules and
other governmental restrictions and requirements relating to the environment or hazardous
substances including, but not limited to, the Federal Solid Waste Disposal Act, the Federal Clean
Air Act, the Federal Clean Water Act, the Federal Resource Conservation and Recovery Act of
1976, 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 & 403, Florida Statutes, and rules and regulations of Florida Department of
Environmental Protection.
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ORLA_ 403652.4
(F) There is no pending litigation or dispute involving or concerning the location
of the boundaries of the Property or in any way affecting the title to or ownership of the
Property.
(G) Except for this Agreement or as evidenced by instruments recorded in the
Public Records of Orange County, Florida, Seller has not entered into any leases, licenses,
contracts or other agreements relating to any portion of the Property which will survive the
Closing.
(H)No member of the City Commission, no agent or employee of Buyer, 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.
(1) There are no persons or entities in possession of, or entitled to possession of,
all or any portion of the Property, as the case may be, as lessees, tenants at sufferance, licensees
or trespassers.
(J) Seller is not a "foreign person" as such term is defined in Section 1445(f) of
the Internal Revenue Code.
(K) Seller shall take, or cause to be taken, all actions necessary to cause the
representations of the Seller as contained in this Agreement to remain materially true and correct
in all respects from the Effective Date through the Closing Date.
Seller agrees to indemnify and hold Buyer harmless from and against all liability, claims,
demands, fines, penalties, expenses, suits, proceedings, actions and costs of action, including
reasonable attorneys' fees, paralegal fees and attorneys' fees and costs on appeal, arising out of
or related to the untruthfulness of any of the above warranties and representations.
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8. The Closine:. This transaction shall be closed and the deed and other closing
documents delivered (the "Closing") at 10:00 a.m. on or before the thirtieth (30th) day following
the expiration of the Due Diligence Period (the "Closing Date"). Closing shall take place at the
offices of Foley & Lardner LLP, 111 N. Orange Avenue, Suite 1800, Orlando, Florida, 32801, or
as otherwise agreed between the parties.
9. Closine: Costs. Prorations and Adjustments.
(A) The following items are to be paid at the Closing by the party indicated and in
the manner set forth:
(i) Buyer shall pay the cost of recording the deed and other documents
executed at the Closing, except for the cost of recording any corrective instruments which shall
be paid Seller.
(ii) Real property taxes in connection with the conveyance of the
Property shall be proratyd as of the day of the acceptable of the conveyance ~y Buyer and the
prorated amount shall be paid by Seller and shall be escrowed in accordance with the 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.
(B) Pursuant to Section 12B-4.013(4), Florida Administrative Code, Buyer hereby
determines and gives written notice to Seller that Buyer has decided to acquire the Property and
that Buyer is prepared to institute condemnation proceedings to acquire the Property in the event
Seller does not agree to sell the Property to Buyer in accordance with the terms and conditions of
this Agreement. This paragraph is included for the purpose of documenting that the conveyance
of the Property is to be made by Seller to Buyer under threat of condemnation and that the
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ORLA_ 403652.4
conveyance is not subject to the Florida documentary stamp tax. If it should later be determined
that any documentary stamp tax is due on the transaction, then such cost shall be paid by the
Seller; provided, however, that Seller shall have the right to appeal such a determination at its
own cost and expense.
(C) Each party shall bear its own legal expenses m connection with the
negotiation of this Agreement and the Closing hereunder.
10. Broker.
(A) The Seller represents and warrants to the Buyer that, other than Julia Faye
Rogers Realty, Inc. (the "Broker") which is representing the Seller, Seller 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 shall pay the Broker in
accordance with a separate brokerage agreement between Broker and Seller, and Buyer shall
have no liability or obligation whatsoever to Broker. Seller agrees to indemnify and to hold
Buyer 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 Buyer 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 Buyer represents and warrants to Seller that, except for the Broker, 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. Buyer shall
not be responsible for the payment of any monies to the Broker.
(C) The provisions of this paragraph 10 shall survive the termination of this
Agreement.
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11. Documents to be Delivered.
(A)By Seller at Closing. In addition to the other documents required to be
executed by Seller at the Closing, Seller shall execute and acknowledge, where necessary, and
deliver to Buyer the following documents at the Closing hereunder:
(i) Warranty Deed conveying to Buyer marketable fee simple title to
the Property, free and clear of all liens and encumbrances other than conditions of title accepted
by the Buyer in accordance with the terms hereof, and other matters expressly set forth in this
Agreement, said Warranty Deed to be in the form acceptable to Buyer.
(ii) A FIRPT A Affidavit in the form acceptable to Buyer.
(iii) An Owner's Affidavit as required by the title insurer and in the
form acceptable to Buyer.
(iv) Applicable Florida Department of Revenue Return for Transfers of
Interest in Florida Real Property.
(v) Such other documentation as may reasonably be required by Buyer
and the title insurer and/or Closing Agent in order to close this transaction in accordance with the
terms of this Agreement.
(B) By the Buyer at Closing. In addition to the other documents required to be
executed by Buyer at the Closing, Buyer shall execute and acknowledge, if necessary, and
deliver to Seller at the Closing such documentation as may reasonably be required by the title
insurer and/or Closing Agent in order to close this transaction in accordance with the terms of
this Agreement.
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(C) Preparation of Closing Documents. Unless otherwise provided or agreed in
writing between the parties, all closing documents shall be prepared by Buyer's attorney.
12. Post Closine: Occupancy. Notwithstanding the Closing, the parties hereto agree that
Seller shall be permitted to remain in possession of the Property for a period not to exceed six (6)
months from the Closing Date in accordance with the terms of the Post Closing Occupancy
Agreement (the "Post Closing Agreement"), attached hereto as Exhibit "B" and by this
reference made a part hereof. Seller may only occupy and use the Property in the same manner
and for the same purposes for which Seller has historically used the Property, and shall make no
other use of the Property during the term of the Post Closing Agreement. At Closing, the parties
will enter into a Post Closing Agreement in substantially the same form as is attached hereto as
Exhibit "B". Seller will deliver to Seller at Closing the certificate of insurance required in the
Post Closing Agreement naming Buyer as an additional insured under Seller's general liability
insurance policy. Upon expiration or earlier termination of the Post Closing Agreement, Seller
will deliver possession of the Property to Buyer.
13. "As Is" Condition. The sale of the Property as provided in this Agreement is made
on a strictly "AS IS" basis. Seller hereby specifically disclaims any warranty (oral or written)
concerning the manner, construction, condition, fitness for use for a particular purpose and state
of repair or lack of repair of the Property.
14. Abandoned Property and Site Clean-Up. Prior to Closing, Seller will, at Seller's
expense, remove all visible solid waste, trash, debris and abandoned personal property (from the
Property.
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15. Default.
(A) In the event of a default by Seller hereunder it is agreed that the exclusive
remedies for such default shall be for Buyer to either: (1) terminate this Agreement whereupon
the Deposit shall be returned to Buyer and 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, or (2) seek and obtain specific performance of this
Agreement.
(B) In the event of a default by Buyer hereunder it is agreed that the exclusive
remedies for such default shall be for Seller to either: (1) terminate this Agreement whereupon
the Deposit shall be delivered to Seller as full liquidated damages for such default of Buyer, the
parties hereto acknowledging that it is impossible to more precisely estimate the damages to be
suffered by Seller upon Buyer's default, and the parties expressly acknowledging that the
delivery of the Deposit to Seller is intended not as a penalty, but as fully liquidated damages, and
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, or (2)
seek and obtain specific performance of this Agreement.
(C)IT IS SPECIFICALLY AGREED BETWEEN THE PARTIES THAT
NEITHER PARTY WILL HAVE A CLAIM FOR ACTUAL DAMAGES AGAINST THE
OTHER PARTY IN THE EVENT OF A DEFAULT BY THE OTHER PARTY.
(D) Prior to either party declaring the other party in default hereunder, it is agreed
that the non-defaulting party shall give written notice to the defaulting party setting forth with
specificity the alleged default and the defaulting party shall thereafter have twenty (20) days to
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ORLA_ 403652.4
cure any such default; provided, however, that no notice shall be required to declare a default
based upon the failure to close on the Closing Date.
16. Survival of Warranties and Ae:reements.
All warranties, representations,
covenants, obligations, indemnities and agreements contained herein shall survive the execution
and delivery of the deed, and the Closing to be held hereunder.
17. Parties. The rights and obligations created by this Agreement shall be binding upon
and inure to the benefit ofthe parties hereto and their respective heirs, successors and assigns.
18. Entire Ae:reement. This Agreement constitutes the entire agreement of the parties,
and there are no understandings dealing with the subject matter of this Agreement other than
those contained herein. This Agreement may not be modified, changed or amended, except by a
writing signed by the parties hereto.
19. Notices. All notices, consents, approvals, waivers and elections which any party shall
be required or shall 9.esire to make or give under this Agreement shall be il). writing and shall be
sufficiently made or given (i) by hand delivery to the named individuals representing the party to
be notified, or (ii) by private parcel delivery services, or facsimile transmission for which receipt
is provided to the notifying party. Notices, including notice of change of address, shall be
addressed or transmitted to the addresses set forth below or such other address that a party may
designate in the manner prescribed herein:
AS TO SELLER:
Brenda Bracewell Rogers
951 Ocoee-Apopka Road
Ocoee, Florida 34761
With a copy to:
Julia Faye Rogers Realty, Inc.
P.O. Box 365
Groveland, Florida 34736
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ORLA_ 403652.4
With a copy to:
Julia Law, Attorney
Roberts & Law, P .A.
P.O. Box 57
Groveland, Florida 34736
AS TO BUYER:
City of Ocoee
Attn: City Manager
150 North Lakeshore Drive
Ocoee, Florida 34761
Telephone: (407) 905-3110
Fax: (407) 656-6885
With a copy to:
Paul E. Rosenthal, Esq.
Foley & Lardner LLP
III North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, Florida 32802-2193
Telephone: (407) 423-7656
Fax: (407) 648-1743
Notices, consents, approvals, waivers and elections given or made as aforesaid shall be deemed
to have been given and received on the date of the delivery or transmission thereof as aforesaid.
20. Non-Waiver of Soverei2n Immunitv. 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 Buyer 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 Buyer 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.
21. Time is of the Essence. Time is of the essence with respect to all matters set forth in
the Agreement. Time periods herein of fifteen (15) days or less shall in the computation thereof
exclude Saturdays, Sundays, days during which the Buyer's office is closed for regular public
business and legal holidays. Further, time periods herein which shall end on a Saturday, Sunday
17
ORLA_ 403652.4
or legal holiday shall extend to 5:00 p.m. of the next business day on which the Buyer's office is
open for regular public business. All time references contained herein shall refer to the local time
in effect in Orange County, Florida.
22. Governin2 Law/Attornevs' Fees. This Agreement shall be construed and
interpreted according to the laws of the State of Florida. In the event of litigation between the
parties arising from or pertaining to this Agreement, 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.
23. Construction of A2reement. This Agreement shall not be construed more strictly
against one party than against the other party merely by virtue of the fact that it may have been
prepared by counsel for one of the parties, it being recognized that both Seller and Buyer have
contributed substantially and materially to the preparation hereof.
24. Counterparts. This Agreement and any amendments hereto may be executed in any
number of counterparts, each of which shall be deemed to be an original instrument, but all such
counterparts together shall constitute one and the same instrument.
25. 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 transaction
contemplated hereby.
18
ORLA_ 403652.4
26. Assie:nment. This Agreement may not be assigned by either Seller or Buyer.
27. Radon Gas. Pursuant to the provisions of Section 404.056(8), Florida Statutes,
Seller hereby notifies Buyer as follows with respect to the Land: "Radon is 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."
28. Seller's Disclosures. Seller hereby notifies and discloses to Buyer that the Property
was historically used for agriculture purposes (citrus grove, grazing of cattle and hay). Seller
hereby notifies and discloses to Buyer that Seller believes a bald eagle inhabits property located
adjacent to the Property.
29. Effective Date. For all purposes of this Agreement, the Effective Date hereof shall
mean the date when the last of the Seller and the City Manager of Buyer has executed same, and
. .
that date shall be inserted at the top of the first page hereof, provided, however, that it is
mutually understood and agreed by the parties hereto that this Agreement is subject to and
contingent upon acceptance and approval by the Ocoee City Commission pursuant to Section 28
hereof.
30. Approval of Ae:reement. It is mutually understood and agreed by the parties hereto
that this Agreement is subject to and contingent upon acceptance and approval by the Ocoee City
Commission. Prior to the expiration of the Due Diligence Period, Buyer will hold a public
hearing pursuant to Section 8B(I) of the Ocoee City Charter for the purpose of considering this
Agreement. In the event the City Commission does not accept and approve this Agreement prior
to the expiration of the Due Diligence Period, then this Agreement will automatically terminate,
19
ORLA_ 403652.4
the Deposit shall be returned to Buyer, and the parties shall be relieved of all further rights and
obligations hereunder, except for those rights and obligations which expressly survive the
termination of this Agreement.
{Signature Pazes Follows 1
20
ORLA_ 403652.4
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
in the presence of:
SELLER:
~ i~~t-&, "1 ~ (2 OvV-
gnature 0
~(J~ PdY.L-r2oJ.lZ.Y5
Print N a. me I v:, .
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Print Name
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Brenda Bracewell Rogers 1-
Executed on Jtt..~ /.s , 2006
V
BUYER:
CITY OF OCOEE, FLORIDA
By: /III /PI
Rob Frank, City Manager
Execute~ /...-
,2006
21
ORLA_ 403652.4
APPROVED BY THE OCOEE CITY COMMISSION:
ATTEST:
Beth Eikenberry, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this _ day of
,2006.
FOLEY & LARDNER LLP
By:
City Attorney
ORLA_ 403652.4
BUYER:
CITY OF OCOEE, FLORIDA
By:
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON , 2006 UNDER
AGENDA ITEM NO.
22
951 Ocoee-Apopka Road
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EXHIBIT "A"
(The "Property")
Beginning at NW comer of SW 1/4 of SE 1/4, run South 4.5 chains, East 11.10 chains, South 57
links, East 8.98 chains, North 5.07 chains, West to point of beginning; and NW 1/4 of SE 1/4
(less beginning 5 chains, North of SW comer, run East 11 Y4 chains, North 9.85 chains, West
7.92 chains, Northwesterly to NW comer of said 40 acres, South to point of beginning and less
beginning 14 feet North of SW comer, run North 353 feet, East 493 feet, South 353 feet, West
493 feet) all in Section 7, Township 22 South, Range 28 East.
23
ORLA_ 403652.4
EXHIBIT "B"
POST CLOSING OCCUPANCY AGREEMENT
THIS POST CLOSING OCCUPANCY AGREEMENT is made this _ day of
, 2006, by and between BRENDA BRACEWELL ROGERS whose address
is 950 Ocoee-Apopka Road, Ocoee, Florida 34761 ("Seller") and CITY OF OCOEE, a Florida
municipal corporation whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761
("Buyer").
RECITALS:
WHEREAS, Seller and Buyer have, under threat of condemnation by Buyer, heretofore
entered into that certain Agreement of Purchase and Sale (the "Purchase Agreement") dated
,2006 with respect to certain lands located on Orange County, Florida; and
WHEREAS, Seller and Buyer have of even date herewith closed on the sale and
purchase of the Property; and
WHEREAS, Seller has requested to remain in possession of the Property after closing
for a period not to exceed six (6) months; and
WHEREAS, Buyer has agreed to allow Seller to remain in possession of the Property
after closing for a period not to exceed six (6) months pursuant to the terms hereof.
NOW, THEREFORE, the parties hereto, in consideration of the covenants contained
herein, hereby agree as follows:
1. Recitals. The above recitals are true and correct and incorporated herein by
reference.
24
ORLA_ 403652.4
2. Definitions. All terms used herein shall be as defined in the Purchase Agreement
unless otherwise expressly indicated.
3. Post Closing Occupancy. Seller and her family and guests shall be permitted to
remain in possession of the Property until (the "Delivery Date") (not to exceed 6
months from Closing Date). Seller may only occupy and use the Property hereunder in the same
manner and for the same purposes for which Seller has historically used the Property, and shall
make no other use of the Property during the term hereof. Seller agrees to deliver possession of
the Property on the Delivery Date. Notwithstanding the forging, Seller may vacate the Property
and deliver possession of the Property to Buyer earlier than the Delivery Date provided that
Seller gives Buyer 7-day advance written notice of her intent to vacate the Property.
4. License. Seller's use and occupancy of the Property is a license only, and Seller
agrees to vacate the Property as of the Delivery Date promptly and hereby agrees to leave the
Property in the same condition as it was on the date of this Agreement.
5. Risk of Loss. Seller shall be responsible and suffer all risk of loss or damage to her
personal property stored or located on the Property and the personal property of her family,
agents, employees, guests, or visitors located on the Property or otherwise on the premises, and
shall indemnify, defend and hold Buyer harmless from any and all loss, damages, injuries, claims
or demands whatsoever arising from his use or occupancy of the Property or the use or
occupancy by others as aforesaid, otherwise arising as a result of this Agreement.
6. Utilities and Insurance. During the term of this Agreement, Seller shall pay for all
utility services associated with her use and occupancy of the Property. Seller shall also maintain,
for the entire term of this Agreement, general liability insurance in an amount not less than
$1,000,000.00 and cause Buyer to be named as an additional insured thereunder. Seller has
contemporaneously herewith delivered to Buyer a certificate of insurance reflecting same.
25
ORLA_ 403652.4
7. No Tenancy. It is expressly understood and agreed that no landlord-tenant
relationship is implied or created by this Agreement.
8. No Maintenance by Buyer. Buyer shall have no maintenance or repaIr
responsibilities with respect to the Property or improvements thereon during the term of this
Agreement.
9. Personal Agreement. This Agreement is personal to Seller and may not be assigned
or otherwise transferred.
10. Governing Law/Attorneys' Fees. This Agreement shall be construed and interpreted
according to the laws of the State of Florida. In the event of litigation between the parties arising
from or pertaining to this Agreement, 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.
11. Counterparts. This Agreement and any amendments hereto may be executed in any
number of counterparts, each of which shall be deemed to be an original instrument, but all such
counterparts together shall constitute one and the same instrument.
12. 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 transaction
contemplated hereby.
26
ORLA_ 403652.4
IN WITNESS WHEREON, the parties have duly executed this Agreement as of the
date first written above.
ATTEST:
Beth Eikenberry, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this _ day of
,2006.
FOLEY & LARDNER LLP
By:
City Attorney
ORLA_ 403652.4
SELLER:
Brenda Bracewell Rogers
BUYER:
CITY OF OCOEE, FLORIDA
By:
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON , 2006 UNDER
AGENDA ITEM NO.
27
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June 16.2006
~/4Uif,-d
Copy of Public Hearing Advertisement
Date Published
fl.\
Or \aV\(io Se:trh{\e \
SG\-tu v- ~ i .J u.l~ 8) 2.W.o
Advertisement
IflI'l\CE OF PllBUC IIEAIUfCGS
Cl'T'f lIF QCOEf
The City Intends to pur-
chase the following real
property from Brenda B.
Rogers. at 0 purchase price
of $2,000,000.00
DESCRIPTION: 951
Ocoea Apopko Rood;
Predominately' vacant
36.97 acre slle located
along the east side of
Ocoee Apopka Rood
north of Silver Star
Rood in.Ocoee, unincor-
porated Orange County,
Florida.
A COpy of the proposed pur-
chase contract along wllh 0
sketch showing the location
of the above referenced
property is available for
public review at the Office
of the City Clerk.
The Ocoee City Commis-
sion will consider the pro-
posed purchase from Bren-
da B. Rogers at 0 Public
Hearing to be held on July
18, 2006 at 7: 15 p.m. or os
soon thereafter os practical.
Interested porlles may ap-
pear at the meeting and be
heard with respect to the
proposed actions. This No-
tice is given pursuant to
Section C-8 (B) (l) of the
City of Ocoee Charter.
NOnCE: Any person who de-
sires to appeal any decision
mode bY Commission with
respect to anY' mutler con-
sidered at such meellng will
need a record at the pro-
ceedings and tar such Ptlr-
pose may need to ensure
that a verbatim record of
the proceeding is mode,
which record includes the
testimony and evidence up-
on which the appeal is
based. Persons with disabil-
ities needing assistance to
partlctpote in any of these
proceedlnlls should contact
the Office of the City Clerk,
1S0 N. Lakeshore Drive,
Ocoee, FL 34761, (407) 656-
2322, Ext. 146. 48 hours In ad'
vance of the meetrng.
Beth Eikenberry,
City Clerk
COR6869901 JU L.8,2006
_.0--..:----'-----.----