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HomeMy WebLinkAboutItem #13 Execution of Purchase Agreements with Orlando/Orange County Expressway Authority AGENDA ITEM COVER SHEET Contact Name: Contact Number: J. Antonio Fabre, AICP 905-3100 X1 019 Meeting Date: April 18, 2006 Item # I 3 ~:"~':t~=~t Director: 9 l_ ~4:: City Manager: ~ _ _ Subject: Execution of the Real Estate Sale and Purchase Agreement for two (2) parcels of land owned by the Orlando-Orange County Expressway Authority and to authorize staff to complete the acquisition process. Background Summary: The "Industrial Parcel" (AKA: Parcel 62-105) - The City of Ocoee has petitioned the Orlando-Orange County Expressway Authority to acquire approximately 2.5 acres of land along SR 429. The purchase price to be paid for the land is $275,000. The City intends to purchase this land to facilitate a future roadway that will eventually link Roper Parkway and Bowness Road. The "Pine Street Parcel" (AKA: Parcel 62-131/132) - The City of Ocoee has petitioned the Orlando-Orange County Expressway Authority for approximately 13 acres of surplus land along SR 429. The purchase price to be paid for the land is $390,000. The City was requested to purchase (via SJRWMD Participation Agreement funds) this land to facilitate an environmental educational park that would also function for wetland restoration and drainage enhancement. Issue: Should the Honorable Mayor and City Commissioners execute the Real Estate Sale and Purchase Agreements for two (2) parcels of land to be acquired from the Orlando-Orange County Expressway Authority? Staff Recommendation: Staff respectfully recommends that the Mayor and City Commissioners authorize the Mayor and City Clerk to execute the Real Estate Sale and Purchase Agreement for both parcels of land owned by the Orlando- Orange County Expressway Authority on behalf of the City, and to authorize staff to complete the acquisition process. Final form of the Real Estate Sale and Purchase Agreement will be subject to review and approval by City Staff and City Attorney. Attachments: Location Maps; Real Estate Sale and Purchase Agreement for the "Industrial Parcel"; Real Estate Sale and Purchase Agreement for the "Pine Street Parcel". Financial Impact: N/A Type of Item: D Public Hearing D Ordinance First Reading D Ordinance First Reading D Resolution ~ Commission Approval D Discussion & Direction For Clerk's DeDt Use: D Consent Agenda D Public Hearing ~ Regular Agenda D Original Document/Contract Attached for Execution by City Clerk D Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) D N/A D N/A D N/A City Manager Robert Frank Commissioners Gary Hood. District 1 Scott Anderson. District 2 Rusty Johnson. District 3 Joel Keller. District 4 Mayor S. Scott Vandergrift STAFF REPORT TO: The Honorable Mayor and City Commissioners J. Antonio Fabre, AICP, Senior Planner ~ ^~ Russ Wagner, AICP, Community Develo~ Director W FROM: THROUGH: DATE: April 7, 2006 RE: Authorization for the execution by the Mayor and City Clerk for the Real Estate Sale and Purchase Agreement of two (2) parcels of land owned by the Orlando-Orange County Expressway Authority. ISSUE: Should the Honorable Mayor and City Commissioners execute the Real Estate Sale and Purchase Agreements for two (2) parcels of land to be acquired from the Orlando-Orange County Expressway Authority? BACKGROUNDIDISCUSSION: The "Industrial Parcel" (AKA: Parcel 62-105) - The City of Ocoee has petitioned the Orlando-Orange County Expressway Authority to acquire approximately 2.5 acres of land along SR 429. The purchase price to be paid for the land is $275,000. The purchase price has been determined by the appraisal prepared by Pine & Carpenter, Inc. and dated November 4, 2005. The City has requested to purchase this land in order to facilitate a future roadway that will eventually link Roper Parkway with Bowness Road. Specifically, the subject property is located on the north side of Roper Parkway and west of Maguire Road. The property is identified by the Orlando-Orange County Expressway Authority parcellD # 62-105. The purpose of the land acquisition is to implement objectives established in the City of Ocoee Comprehensive Plan adopted October 1, 2002; particularly, the Roper Parkway extension as it is identified in the Recommended Roadway Improvements section of the Transportation Element. The ultimate goal is to provide improved accessibility to the growing industrial and distribution activities in west Ocoee north of SR 50. The Expressway Authority purposely left this remnant parcel out of the original Western Expressway construction to permit this parallel roadway extension. The "Pine Street Parcel" (AKA: Parcel 62-131/132) - The City of Ocoee has also petitioned Orlando- Orange County Expressway Authority for approximately 13 acres of surplus land along SR 429. The purchase price to be paid for the land is $390,000. The purchase price has been determined by the appraisal prepared by Pine & Carpenter, Inc. and dated November 4, 2005. The City was requested to purchase this land in order to facilitate an environmental educational park that would also function for wetland restoration and drainage enhancement. Specifically, the subject property is located on the north side of Pine Street and south of the Crown Point Woods Subdivision. The property is identified by the Orlando-Orange County Expressway Authority parcellD # 62-131/132. The nature of this request is to create some type of environmental educational park. The property itself has uplands and wetlands that are associated with the drainage basin for Lake Apopka, which makes this site a good candidate for a drainage enhancement and wetland restoration project. This environmental educational park would ultimately feature benches, walkways and informational signage. To this end, the City has approximately $668,266 available from the St. John Water Management District (SJWMD) for this wetland mitigation program. Staff has consulted with PEC (Professional Engineering Consultants, Inc.) and SJWMD staff. All have agreed on the potential of the site for some sort of wetland restoration/mitigation parkland. On April 5, 2006, the City has received Real Estate Sale and Purchase Agreements for both parcels of land from the Orlando-Orange County Expressway Authority for execution by the City. In order to complete this acquisition process, the City needs to obtain a Phase 1 Environmental Assessment and boundary survey using standard City acquisition procedures. The purpose of an Environmental Site Assessment is to provide a professional opinion regarding the possible presence or prior existence of hazardous material or hazardous waste contamination of soil or groundwater at the site. Phase 1 Environmental Site Assessments are standard procedures for any commercial land transaction. Pending a favorable Environmental Site Assessment and surveys that demonstrate there are no matters shown which would adversely affect the marketability of the property, the City anticipates "Closing" on both properties in accordance with Expressway Authority Rule 4-1. Funds to purchase these properties are available from the City's Road Impact Fee Account (the "Industrial Parcel") and from a grant by the St. John's River Water Management District (the "Pine Street Parcel"). STAFF RECOMMENDATION: Staff respectfully recommends that the Mayor and City Commissioners authorize the Mayor and City Clerk to execute the Real Estate Sale and Purchase Agreement for both parcels of land owned by the Orlando-Orange County Expressway Authority on behalf of the City, and to authorize staff to complete the acquisition process. Final form of the Real Estate Sale and Purchase Agreement will be subject to review and approval by City Staff and City Attorney. Attachments: Location Map for the "Industrial Parcel"; Location Map for the "Pine Street Parcel"; Real Estate Sale and Purchase Agreement for the "Industrial Parcel"; Real Estate Sale and Purchase Agreement for the "Pine Street Parcel". o :\Staff Reports\2006\S R06024 _ AF _ Surpl usPropertiesSalePu rchaseAgreements _ CC. doc "Industrial Parcel" Location Map 9 "Pine Street Parcel" Location Map 9 PARCEL NO: 62-105 PROJECT PROJECT: SR 429 (Western Expressway Part A) REAL ESTATE SALE AND PURCHASE AGREEMENT TIDS AGREEMENT, made this day of , 2006, between ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY, a public corporation and agency of the State of Florida, with and address of 525 South Magnolia Avenue, Orlando, Florida 32801-4414, (the "Authority") and CITY OF OcOEE, a municipal corporation of the State of Florida, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761-2258 (the "Purchaser") . RECITALS: Authority is the fee simple owner of certain real property located in Orange County, Florida, as generally depicted on Exhibit '~" attached hereto and incorporated herein by this reference and to be more particularly described by survey in accordance with the terms and conditions hereof (the "Property"). The Authority has determined that the Property is non- essential for present or future construction, operation or maintenance of the expressway system and is Surplus Property available for sale in accordance with the Authority's Policy Regarding the Disposition of Excess Lands as set for in the Authority's Permanent Policies and Rules. Purchaser desires to purchase the Property and the Authority has determined that the sale of the Property to the Purchaser, upon the terms and conditions hereinbelow set forth, is in the best interest of the public and the Authority. NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) in hand paid by Purchaser to the Authority, the mutual covenants and agreements herein set forth, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged by the parties hereto, the Authority and Purchaser hereby covenant and agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Aueement to Sell and Purchase the ProDertv. Authority agrees to sell to the Purchaser and Purchaser agrees to purchase from the Authority the Property in the manner and upon the terms and conditions hereinbelow set forth in this Agreement. 3. Purchase Price. The purchase price (the "Purchase Price") to be paid by the Purchaser to the Authority for the Property shall be Two Hundred Seventy Five Thousand and NollOO Dollars ($275,000). The purchase price has been determined by the appraisal prepared by Pinel & Carpenter, Inc. and dated November 4, 2005. Upon execution of this Agreement, Purchaser shall deposit in escrow with the Authority's attorney, Broad and Cassel (the "Escrow Agent") the sum of Twenty Seven Thousand Five Hundred and Noll 00 Dollars $27,500.00 (the 1 nDI 'I\D&:AI ~C'T\c:.,.ne,no ~ "Deposit") by cashier's check, money order or other non-cancelable instrument, which Deposit shall be held in escrow until paid to the applicable party or applied to the Purchase Price at closing pursuant to the terms of this Agreement. The balance of the Purchase Price in the amount of Two Hundred Forty Seyen Thousand Fiye Hundred and No/IOO Dollars $247,500.00 shall be paid by the Purchaser to the Authority at closing by cashier's check or by wire transfer offunds, subject to appropriate credits, adjustments and prorations as hereinbelow provided. 4. Title. Authority, at Purchaser's expense, shall order and deliver to Purchaser an ALTA owner's title commitment (the "Commitment") issued by a title insurance company selected by the Authority committing to insure Purchaser's title in the Property in the amount of the Purchase Price. The Commitment shall be provided to Purchaser within thirty (30) days after the Approval Date of this Agreement. Purchaser shall have twenty (20) days within which to examine the Commitment and to notify Authority in writing as to any objections to any matters which are set forth in the Commitment which would render title unmarketable or prohibit Purchaser's intended us.e of the Property ("Title Defects"); provided, however, that Purchaser shall not have the right to object to any matter set forth in the Commitment which is listed on Exhibit "B" attached hereto and incorporated herein (the "Permitted Exceptions"), it being acknowledged by Purchaser that if Purchaser acquires the Property, Purchaser shall take title subject to said Permitted Exceptions. If Purchaser does not give such a written notice of Title Defects within said twenty (20) day period, then Purchaser shall be conclusively deemed to have accepted the status of title, and Purchaser waived any right to object to the status of Authority's title. If the title is unmarketable or uninsurable and Purchaser has timely notified Authority of its objections thereto, the Authority shall have ninety (90) days within which to cure the designated Title Defects, and the Closing Date shall be extended so as to allow such cure. Upon the Title Defects being cured, Authority shall so notify Purchaser in writing (the "Cure Notice"). If Authority is unwilling or unable to cure the designated Title Defects, Authority shall so notify Purchaser and the Purchaser shall have the option of either accepting the title as is or demanding a refund of the Deposit and thereupon Purchaser and Authority shall be released, as to one another, of all further obligations hereunder (except obligations expressly surviving termination of this Agreement pursuant to the terms hereof). Without limiting anything contained herein, it is expressly acknowledged and agreed that the Special Warranty Deed conyeying the property shall contain a restriction that all rights of ingress, egress, light, air alid view between State Road 429 (Western Expressway) and the Property are reserved in the Authority and shall not be conveyed by the Special Warranty Deed. This restriction shall be a Permitted Exception and rights of access to and from State Road 429 and rights of ingress, egress, light, air or view on, across or over State Road 429 shall not be insured by the Title Policy. 5. Survey. Authority shall provide Purchaser with a legal description and sketch of description of the Property within thirty (30) days after the Approval Date. Purchaser, at Purchaser's expense, may obtain a survey of the Property (the "Survey") within thirty (30) days after the Approval Date. If obtained, Purchaser shall provide a copy of the Survey to Authority within five (5) days of Purchaser's receipt thereof. The Survey shall be prepared by a surveyor licensed by the State of Florida and shall be certified to Authority, Purchaser, the Authority's attorneys, and the Title Insurance Company as being prepared in accordance with the minimum technical standards as set forth in the Florida Administrative Code. If the Survey shows any encroachments, Purchaser shall give written notice to Authority within twenty (20) days of 2 Purchaser's receipt of the Survey, and such matters shall be treated as Title Defects as provided in Paragraph 5 hereinabove. It is expressly acknowledged that the Survey shall depict the existence of any controlled-access or limited-access line between the Authority's property and the Property, and same shall not be deemed a Title Defect nor survey encroachment. If no Survey is obtained, the Title Policy shall be issued containing the standard survey exception. Final sketches and descriptions as approyed by the Authority and Purchaser will be substituted for the legal description .on the Deed. 6. Inspections: Condition of Propertv. I (a) Purchaser shall have ninety (90) days after the Approval Date (the "Inspection Period"), to determine, in Purchaser's sole and absolute discretion, that the Property is suitable and satisfactory for Purchaser's intended use. During the Inspection Period, Purchaser and/or its representatives shall have the right to enter upon the Property for the purposes of making soil tests, site studies and surveys; provided, however, such entry shall not unreasonably damage the Property or interfere with Authority's use or occupancy of the Property. Purchaser shall repair any damage occurring as a result of such activities and restore the Property to substantially the condition it was in immediately prior to Purchaser's entry thereon. All such entries onto the Property shall be at the sole risk and expense of Purchaser and Authority shall have no liability for any injuries or damages sustained by Purchaser or any of Purchaser's agents or contractors or any other third parties. Purchaser agrees to indemnify and hold Authority harmless from any and all loss, claim, action, demand or liability which may arise against the Authority or the Property arising out directly or indirectly out of Purchaser's exercise of its rights pursuant to this Paragraph 6(a), including any damage to the Property. The foregoing indemnities shall survive the expiration or termination of this Agreement. If Purchaser elects to not proceed with the purchase of the Property, Purchaser shall notify Authority in writing within the Inspection Period that Purchaser elects to cancel this Agreement (the "Cancellation Notice"), the Deposit shall be promptly refunded to Purchaser and this Agreement shall automatically terminate and be null and void, and neither party hereto shall have any further liability or obligation hereunder, except those expressly surviving the termination or expiration of this Agreement. In the event Purchaser shall fail to provide Authority with the Cancellation Notice within the Inspection period, Purchaser shall be deemed to have waived Purchaser's right to cancel this Agreement (b) Purchaser acknowledges and agrees that Authority is affording Purchaser full and complete access to the Property for the purpose of making any and all tests, inspections, or evaluations thereof as desired by Purchaser, including, but not limited to any environmental assessments or audits deemed advisable by Purchaser, and that Purchaser has inspected the Property to the extent desired by Purchaser. Purchaser expressly acknowledges and agrees that the Property and the Premises are to be conveyed by Authority, and accepted by Purchaser in "AS IS" and "WHERE IS" condition, and that neither Authority, nor any officer, director, stockholder, employee, agent, representative, or other person or entity whatsoever, has made or does make hereby any warranty, representation, statement, guarantee, assertion or opinion, written or oral, express or implied, about or concerning the Property or the Premises, or about or concerning the physical condition thereof or for any use or pwpose, or any similar matter. Purchaser coyenants and agrees that the acceptance by Purchaser of the Property in "AS IS" and "WHERE IS" condition, and without any representation or warranty of any kind or nature 3 ORL 1 IREALESn67960B2 whatsoever was and is a material part of the consideration bargained for by Authority, and that Purchaser's agreements in such regard were and are a material inducement for Authority to enter into and perform this Agreement. Purchaser hereby covenants and agrees that Purchaser does and shall assume any and all risks concerning the Property, and the physical condition and characteristics thereof, and any defects or problems concerning the Property, whether patent or latent, known or unknown. (c) Authority does not have any present, actual knowledge of any contamination of the Property, environmental permits, notices of environmental violation or environmental civil or criminal proceedings involving the Property. Notwithstanding paragraph 6(b) above, if Purchaser's environmental audit of the property indicates the presence of environmental contamination, Purchaser shall promptly provide the Authority a copy of such audit report and the Authority the shall have fifteen (15) days after receipt of same to notify Purchase whether the Authority elects to clean up such contamination and/or obtain an assessment of the cost and the estimated time to clean up the contamination and deposit a sum equal to that cost in a trust. Should the estimated time for cleanup extend beyond one hundred eighty (180) days after the Approval Date, or if Authority fails to either clean up or deposit the cost of cleanup, Purchaser shall have the option upon written notice to Authority to terminate this Agreement and receive a refund of the deposit and Purchaser and Authority shall be relieved from all obligations under this Agreement except those expressly surviving termination. If Purchaser does not terminate this Agreement, Purchaser shall be deemed to have waived its right to terminate this Agreement and closing shall be held (i) Closing Date (as hereinafter defined) or (ii) if Authority initiates cleanup, twenty (20) days after the date that Authority has provided Purchaser with an engineer's certification that the contamination cleanup has been completed, whichever is later. If Purchaser proceeds to closing, Purchaser shall accept the Property "AS IS" and "WHERE IS" in accordance with the terms and conditions of Paragraph 6(b) above. (d) In the event Purchaser does not close on the purchase of the Property, within seven (7) days after the termination or expiration of this Agreement Purchaser shall deliver to Authority copies of all tests, reports, surveys, environmental audits and other audits relating to the Property which have been prepared by, on behalf of, or for Purchaser. 7. closin2. The Closing shall take place within thirty (30) days after expiration of the Inspection Period on a date and time specified by Authority (the "Closing Date") upon not less then ten (10) days' written notice to Purchaser. Closing shall be held at the offices of Authority's counsel, Broad and Cassel, 390 North Orange Avenue, Suite 1100, Orlando, Florida 32801, or at such other place as the Purchaser and Authority shall agree. Notwithstanding the foregoing, closing may be by mail and/or overnight courier. 8. closin2 Documents. The Authority shall prepare and convey title to the Property by Special Warranty Deed, free and clear of all encumbrances and liens of whatsoever nature, except taxes for the year of closing, zoning, public utility easements and other Permitted Exceptions. The Authority shall also deliver to the Purchaser a lien and possession affidavit at closing sufficient to satisfy the requirements of Section 627.7842(1)(b) and (c), Florida Statutes. 9. closin2 Costs: Prorations. The Authority shall prepare and pay for the cost of preparation of the Special Warranty Deed and the Lien and Possession Mfidavit to be issued at 4 ORI'! \~F=.6.1 t=~TU::7~nR ? closing. Purchaser shall for the appraisal of the Property; all costs of the recording of the deed (including documentary stamp taxes, if any); the cost preparation of the survey and other costs of Purchaser's due diligence of the Property; all costs related to Purchaser's financing of the property (including all costs related to any note and mortgage obtained by Purchaser, any lender charges or fees, documentary stamps, intangible taxes and recording fees); and the premium for the title policy to be issued at closing. The Parties shall each pay their own attorney's fees. Real property taxes and assessments on the Property, if any, shall be prorated as of the date of closing. 10. Delivery of Possession: Risk of Loss. Purchaser shall be given possession on the Closing Date. If any improvements located on the Property at the time of the execution of this Agreement are damaged by fire or other casualty prior to closing (other than through the fault of Purchaser, its employees, contractors or agents) and can be restored to substantially the same condition within a period of thirty (30) days after such destruction occurs, Authority shall promptly notify Purchaser in writing if it elects to restore the improvements and, if so, shall promptly restore same at Authority's cost, and the Closing Date shall be extended accordingly. If the Authority elects not to restore the improvements or if such restoration cannot be completed within said period of time, Authority shall so notify Purchaser and Purchaser shall have the option of either (i) terminating this Agreement, whereupon neither of the parties shall have any further obligation hereunder, or (ii) proceeding to closing and accepting the condition of the Property without a reduction in the Purchase Price, but with an assignment of any available insurance proceeds. All risk of loss prior to closing shall be borne by Authority, except to the extent of Purchaser's liability for damage to the Property caused by Purchaser, its employees, agents or contractors. 11. Representations Ree;ardine; Real Estate Brokers. Authority hereby represents and warrants to Purchaser that Authority has not engaged or dealt with any agent, broker or finder in regard to this Agreement or to the sale and purchase of the Property contemplated hereby. Purchaser hereby represents and warrants to Authority that Purchaser has not engaged or dealt with any agent, broker or finder in regard to this Agreement or to the sale and purchase of the Property contemplated hereby. Purchaser hereby indemnifies Authority and agrees to protect, defend, and hold Authority free and harmless from and against any and all claims, actions, causes of action, liability, loss, cost, damage and expense, including but not limited to, attorneys' fees and costs of litigation (whether or not any action is actually commenced, and whether incurred before, during or after trial, or upon any appellate level), which Authority shall ever suffer or incur because of any claim by any agent, broker or finder engaged by Purchaser, or with whom Purchaser has dealt, other than Broker, and whether or not meritorious, for any fee, commission or other compensation with respect to this Agreement or to the sale and purchase of the Property contemplated hereby. The indemnity contained in this Paragraph 11 shall survive the closing or any termination of this Agreement. 5 12. Failure of Performance. (a) On the part of Authority: In the event of a default by Authority under this Agreement, then as Purchaser's sole remedy hereunder, Purchaser may recover a refund of its deposit or seek the remedy of specific performance of Authority's obligations hereunder. Purchaser expressly waives any and all other remedies, legal or equitable, including any action for damages. (b) On the part of Purchaser: In the event of a default by Purchaser under this Agreement, then Authority, shall have the right to immediately claim and be paid the Deposit. 13. No Recordin2. Neither this Agreement nor any record or memorandum thereof shall be recorded in the Public Records or any county in the State of Florida. Recording of this Agreement or any of the terms and provisions hereof, or any record or memorandum thereof Purchaser shall, at the option of Authority, immediately constitute a material breach and default by Purchaser hereunder, and grounds for termination of the Agreement by Authority. 14. Notices. Any notices which may be permitted or required hereunder shall be in writing and shall be deemed to have been duly given as of the date and time the same are personally delivered, or within three (3) days after depositing with the United States Postal Service, postage prepaid by registered or certified mail, return receipt requested, or within one (1) day after depositing with Federal Express or other overnight delivery service from which a receipt may be obtained, and addressed as follows: Authority: ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY 525 South Magnolia Avenue Orlando, Florida 32801-4414 Attn: Executive Director Telephone: (407) 316-3800 Facsimile: (407) 316-3801 With a copy to: BROAD AND CASSEL 390 North Orange Avenue, Suite 1100 Orlando, Florida 32801 Attn: Robert F. Mallett, L.L.C. Telephone: (407) 839-4200 Facsimile: (407) 425-8377 Purchaser: CITY OF OCOEE 150 North Lakeshore Driye Ocoee, Florida 34731 Attn: J. Antonio Fabre, Senior Planner Telephone: (407)905-3100 Facsimile: (407) 905-3158 6 ORL 1\REALEST\S7Q60B , With a copy to: FOLEY & LARDNER. P.A 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Attn: Paul Rosenthal, Esquire Telephone: (407) 244-3239 Facsimile: (407) 648-1743 or to such other address as either party hereto shall from time to time designate to the other party by notice in writing as herein provided. 15. General Provisions. No failure of either party to exercise any power given hereunder or to insist upon strict compliance with any obligation specified herein, and no custom or practice at variance with the terms hereof, shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. This Agreement contains the entire agreement of the parties hereto, and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect. Any amendment to this Agreement shall not be binding upon any of the parties hereto unless such amendment is in writing and executed by Purchaser and the Authority. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and assigns. Time is of the essence of this Agreement. Wherever under the terms and provisions of this Agreement the time for performance falls upon a Saturday, Sunday, or Legal Holiday, such time for performance shall be extended to the next business day. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same agreement. The headings inserted at the beginning of each paragraph of this Agreement are for convenience only, and do not add to or subtract from the meaning of the contents of each paragraph. Purchaser and the Authority do hereby covenant and agree that such documents as may be legally necessary or otherwise appropriate to carry out the terms of this Agreement shall be executed and delivered by each party at closing. This Agreement shall be interpreted under the laws of the State of Florida. Purchaser and Authority acknowledge that this Agreement was prepared after substantial negotiations between the parties and this Agreement shall not be interpreted against either party solely because such party or its counsel drafted the Agreement. The parties hereto agree that venue for any legal action authorized hereunder shall be in the courts of Orange County, Florida. TIME IS OF THE ESSENCE OF THIS AGREEMENT AND EACH AND EVERY PROVISION HEREOF. 16. Severability. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law. 17. Attornevs' Fees. In the event of any dispute hereunder or of any action to interpret or enforce this Agreement, any provision hereof or any matter arising herefrom, the 7 rU~1 'l\D~.61 C~'T\el:~~nc .., prevailing party shall be entitled to recover its reasonable costs, fees and expenses, including, but not limited to, witness fees, expert fees, consultant fees, attorney (in-house and outside counsel), paralegal and legal assistant fees, costs and expenses and other professional fees, costs and expenses whether suit be brought or not, and whether in settlement, in any declaratory action, in mediation, arbitration or bankruptcy, at trial or on appeal 18. Waiver of JUry Trial. PURCHASER AND AUTHORITY VOLUNTARILY WANE A TRIAL BY JURY IN ANY LITIGATION OR ACTION ARISING FROM THIS AGREEMENT. 19. Desien. Location and Fundine: Disclosure. Purchaser acknowledges that the design and location of any contemplated or proposed roadway systems or access scenarios to or from the Property are not guaranteed; and (ii) funding may not be completed for any such proposed roadway systems. 20. Effective Date; Approval Date. When used herein, the term "Effective Date" or the phrase "the date hereof' or "the date of this Agreement" shall mean the last date that either the Authority or Purchaser execute this Agreement. It is specifically acknowledged and agreed that this Agreement is subject to final approval by the Authority's Right of Way Committee and Board of Directors. This Agreement shall be presented to the Right of Way Committee and Authority Board at their next regularly scheduled respective meetings occurring no earlier than ten (10) days after receipt by Authority's Counsel of this Agreement executed by Purchaser and a review appraiser's certification certifying the proposed sale price as reasonable. The date of the Authority Board's final approval of this Agreement, as set forth in written notice from Authority to Purchaser, shall be deemed the "Approval Date". If this Agreement is not approved by the Authority Board, the Agreement shall be terminated and, upon return of Deposit to Purchaser, the Parties shall have no further obligations or liabilities hereunder except those expressly surviving termination of this Agreement. 21. Escrow. The Escrow Agent shall promptly deposit all funds receiyed by it in an interest-bearing money market account established at a federally insured bank. Any interest in the Deposit shall be payable to the party to whom the Deposit is to be disbursed by the Escrow Agent under the terms of this Agreement. Failure of clearance of funds shall not excuse performance by the Purchaser. The Escrow Agent agrees to comply with the provisions of this Agreement insofar as the Escrow Agent is involved, and the Escrow Agent is expressly authorized to make disbursements and debits as contemplated by this Agreement. All parties agree that the Escrow Agent shall not be liable to any party or person whomsoeyer for misdelivery to Purchaser or Authority of items subject to escrow, unless such misdelivery shall be due to willful breach of Agreement or gross negligence on the part of the Escrow Agent. In the event of doubt as to its duties or liabilities, the Escrow Agent may, in its sole discretion, continue to hold the monies which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may interplead the Deposit and deposit all of the monies then held pursuant to this Agreement with any court of competent jurisdiction, and upon notifying Authority and Purchaser, all liability on the part of the Escrow Agent under this Agreement shall fully terminate, except to the extent of accounting for any monies theretofore 8 ORL 1\REALEST\!;7QBOR' delivered out of escrow. Authority and Purchaser agree that the status of Authority's counsel as Escrow Agent under this Agreement does not disqualify said counsel from representing Authority in connection with this transaction and in any disputes that may arise between Authority and Purchaser, or any other party, concerning this transaction, including any dispute or controversy with respect to the Deposit. 22. Radon Gas Notification. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your public health unit. IN WITNESS WHEREOF, the Parties have hereunto set their hands the day and year above written. WITNESSES: "AUTHORITY" ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY, a public corporation under the laws of the State of Florida By: Name: Title: Witness: Witness: APPROVED AS TO FORM FOR EXECUTION BY A SIGNATORY OF THE ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY Legal Counsel: Broad and Cassel By: Date: 9 n~11\~I=.6.II=~T\':::7oe::.Mt .., Witness: Witness: ORI1\RFAI F!':TI"7Cl1<nR? "PURCHASER" CITY OF OCOEE, a municipal corporation under the laws of the State Florida By: Name: Title: Tax ID # 10 I Exhibit "A" I I ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY PROJECT 602/603 - S.R. 429/ WESTERN BELTWAY SURPLUS PROPERTY Sheet 1 of 2 PARCEL 62-105 I LEGAL DESCRIPTION I A portion of that certain Parcel of land described in Official Records Book 5140, Page 1052, Public Records of Orange County, Florida, lying in the Northwest 1/4 of Section 19, Township 22 South, Range 28 East, Orange County, Florida, being more particularly descnbed as follows: I Commence at the Northwest comer of Section 19, Township 22 South, Range 28 East. Orange County, Florida said point being a 4 inch by 4 inch concrete monument; thence N.89008'10"E. along the North line of said Section 19 for 869.18 feet to the Easterly Limited Access Right-of-Way line of the Western Beltway, State Road No. 429, Orlando-Orange County Expressway Authority Project No. 75320-6460- 602/603; thence S.00034'43''E along said Limited Access Right-of-Way line, also being the East line of the aforesaid Parcel described in Official Records Book 5140, Page 1052, for 25.33 feet to the POINT OF BEGINNING; thence departing said Limited Access Right-of-Way line, continue S.00034'43''E. along the East line of said Parcel for 780.00 feet; thence S.89007'43"W along the South line of said Parcel, for 280.00 feet to aforesaid Limited Access Right-of-Way line; thence N.l9008'04"E. along said Limited Access Right-of-Way line for 830.08 feet to the POINT OF BEGINNING. I I I Containing 2.507 acres, more or less I October 31, 2005 071640.70 I I I - I L" , ~ ~ S:\OOCEA\429CLOSEOlIT\Part A \PROJECT 602_603_fiIes\LEGALS\P ARCEL 62-1 OS ...,Surplus.doc PARCEL NO: 62-131/132 PROJECT PROJECT: SR 429 (Western Expressway Part A) REAL ESTATE SALE AND PURCHASE AGREEMENT TillS AGREEMENT, made this day of , 2006, between ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY, a public corporation and agency of the State of Florida, with and address of 525 South Magnolia Avenue, Orlando, Florida 32801-4414, (the "Authority") and CITY OF OCOEE, a municipal corporation of the State of Florida, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761-2258 (the "Purchaser") . RECITALS: Authority is the fee simple owner of certain real property located in Orange County, Florida, as generally depicted on Exhibit "A" attached hereto and incorporated herein by this reference and to be more particularly described by survey in accordance with the terms and conditions hereof (the "Property"). The Authority has determined that the Property is non- essential for present or future construction, operation or maintenance of the expressway system and is Surplus Property available for sale in accordance with the Authority's Policy Regarding the Disposition of Excess Lands as set for in the Authority's Permanent Policies and Rules. Purchaser desires to purchase the Property and the Authority has determined that the sale of the Property to the Purchaser, upon the terms and conditions hereinbelow set forth, is in the best interest of the public and the Authority. NOW, THEREFORE, for and in consideration of Ten and No/I 00 Dollars ($10.00) in hand paid by Purchaser to the Authority, the mutual covenants and agreements herein set forth, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged by the parties hereto, the Authority and Purchaser hereby covenant and. agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Aueement to Sell and Purchase the Property. Authority agrees to sell to the Purchaser and Purchaser agrees to purchase from the Authority the Property in the manner and upon the terms and conditions hereinbelow set forth in this Agreement. 3. Purchase Price. The purchase price (the "Purchase Price") to be paid by the Purchaser to the Authority for the Property shall be Three Hundred Ninety Thousand and No/I 00 Dollars ($390,000). The purchase price has been determined by the appraisal prepared by Pinel & Carpenter, Inc. and dated November 4, 2005. Upon execution of this Agreement, Purchaser shall deposit in escrow with the Authority's attorney, Broad and Cassel (the "Escrow Agent") the sum of Thirty Nine Thousand and No/IOO Dollars $39,000.00 (the "Deposit") by cashier's 1 check, money order or other non-cancelable instrument, which Deposit shall be held in escrow until paid to the applicable party or applied to the Purchase Price at closing pursuant to the terms of this Agreement. The balance of the Purchase Price in the amount of Three Hundred Fifty One Thousand and No/lOO Dollars $351,000.00 shall be paid by the Purchaser to the Authority at closing by cashier's check or by wire transfer of funds, subject to appropriate credits, adjustments and prorations as hereinbelow provided. 4. Title. Authority, at Purchaser's expense, shall order and deliver to Purchaser an ALTA owner's title commitment (the "Commitment") issued by a title insurance company selected by the Authority committing to insure Purchaser's title in the Property in the amount of the Purchase Price. The Commitment shall be provided to Purchaser within thirty (30) days after the Approval Date of this Agreement. Purchaser shall have twenty (20) days within which to examine the Commitment and to notify Authority in writing as to any objections to any matters which are set forth in the Commitment which would render title unmarketable or prohibit Purchaser's intended use of the Property ("Title Defects"); provided, however, that Purchaser shall not have the right to object to any matter set forth in the Commitment which is listed on Exhibit "B" attached hereto and incorporated herein (the "Permitted Exceptions"), it being acknowledged by Purchaser that if Purchaser acquires the Property, Purchaser shall take title subject to said Permitted Exceptions. If Purchaser does not give such a written notice of Title Defects within said twenty (20) day period, then Purchaser shall be conclusively deemed to have accepted the status oftitle, and Purchaser waived any right to object to the status of Authority's title. If the title is unmarketable or uninsurable and Purchaser has timely notified Authority of its objections thereto, the Authority shall have ninety (90) days within which to cure the designated Title Defects, and the Closing Date shall be extended so as to allow such cure. Upon the Title Defects being cured, Authority shall so notify Purchaser in writing (the "Cure Notice"). If Authority is unwilling or unable to cure the designated Title Defects, Authority shall so notify Purchaser and the Purchaser shall have the option of either accepting the title as is or demanding a refund of the Deposit and thereupon Purchaser and Authority shall be released, as to one another, of all further obligations hereunder (except obligations expressly surviving termination of this Agreement pursuant to the terms hereof). Without limiting anything contained herein, it is expressly acknowledged and agreed that the Special Warranty Deed conveying the property shall contain a restriction that all rights of ingress, egress, light, air and view between State Road 429 (Western Expressway) and the Property are reserved in the Authority and shall not be conveyed by the Special Warranty Deed. This restriction shall be a Permitted Exception and rights of access to and from State Road 429 and rights of ingress, egress, light, air or view on, across or over State Road 429 shall not be insured by the Title Policy. 5. Survey. Authority shall provide Purchaser with a legal description and sketch of description of the Property within thirty (30) days after the Approval Date. Purchaser, at Purchaser's expense, may obtain a survey of the Property (the "Survey") within thirty (30) days after the Approval Date. If obtained, Purchaser shall provide a copy of the Survey to Authority within fiye (5) days of Purchaser's receipt thereof. The Survey shall be prepared by a surveyor licensed by the State of Florida and shall be certified to Authority, Purchaser, the Authority's attorneys, and the Title Insurance Company as being prepared in accordance with the minimum technical standards as set forth in the Florida Administrative Code. If the Survey shows any encroachments, Purchaser shall give written notice to Authority within twenty (20) days of 2 ORL 1\REALES1\679608.2 12842/0001 RFM cb 511812005 3:58 PM Purchaser's receipt of the Survey, and such matters shall be treated as Title Defects as provided in Paragraph 5 hereinabove. It is expressly acknowledged that the Survey shall depict the existence of any controlled-access or limited-access line between the Authority's property and the Property, and same shall not be deemed a Title Defect nor survey encroachment. If no Survey is obtained, the Title Policy shall be issued containing the standard survey exception. Final sketches and descriptions as approyed by the Authority and Purchaser will be substituted for the legal description. on the Deed. 6. Inspections: Condition of Propertv. (a) Purchaser shall have ninety (90) days after the Approval Date (the "Inspection Period"), to determine, in Purchaser's sole and absolute discretion, that the Property is suitable and satisfactory for Purchaser's intended use. During the Inspection Period, Purchaser and/or its representatives shall have the right to enter upon the Property for the purposes of making soil tests, site studies and surveys; provided, however, such entry shall not unreasonably damage the Property or interfere with Authority's use or occupancy of the Property. Purchaser shall repair any damage occurring as a result of such activities and restore the Property to substantially the condition it was in immediately prior to Purchaser's entry thereon. All such entries onto the Property shall be at the sole risk and expense of Purchaser and Authority shall have no liability for any injuries or damages sustained by Purchaser or any of Purchaser's agents or contractors or any other third parties. Purchaser agrees to indemnify and hold Authority harmless from any and all loss, claim, action, demand or liability which may arise against the Authority or the Property arising out directly or indirectly out of Purchaser's exercise of its rights pursuant to this Paragraph 6(a), including any damage to the Property. The foregoing indemnities shall survive the expiration or termination of this Agreement. If Purchaser elects to not proceed with the purchase of the Property, Purchaser shall notify Authority in writing within the Inspection Period that Purchaser elects to cancel this Agreement (the "Cancellation Notice"), the Deposit shall be promptly refunded to Purchaser and this Agreement shall automatically terminate and be null and void, and neither party hereto shall have any further liability or obligation hereunder, except those expressly surviving the termination or expiration of this Agreement. In the event Purchaser shall fail to provide Authority with the Cancellation Notice within the Inspection period, Purchaser shall be deemed to have waived Purchaser's right to cancel this Agreement (b) Purchaser acknowledges and agrees that Authority is affording Purchaser full and complete access to the Property for the purpose of making any and all tests, inspections, or evaluations thereof as desired by Purchaser, including, but not limited to any environmental assessments or audits deemed advisable by Purchaser, and that Purchaser has inspected the Property to the extent desired by Purchaser. Purchaser expressly acknowledges and agrees that the Property and the Premises are to be conveyed by Authority, and accepted by Purchaser in "AS IS" and "WHERE IS" condition, and that neither Authority, nor any officer, director, stockholder, employee, agent, representative, or other person or entity whatsoeyer, has made or does make hereby any warranty, representation, statement, guarantee, assertion or opinion, written or oral, express or implied, about or concerning the Property or the Premises, or about or concerning the physical condition thereof or for any use or purpose, or any similar matter. Purchaser covenants and agrees that the acceptance by Purchaser of the Property in "AS IS" and "WHERE IS" condition, and without any representation or warranty of any kind or nature 3 whatsoever was and is a material part of the consideration bargained for by Authority, and that Purchaser's agreements in such regard were and are a material inducement for Authority to enter into and perform this Agreement. Purchaser hereby covenants and agrees that Purchaser does and shall assume any and all risks concerning the Property, and the physical condition and characteristics thereof, and any defects or problems concerning the Property, whether patent or latent, known or unknown. (c) Authority does not have any present, actual knowledge of any contamination of the Property, environmental permits, notices of environmental violation or environmental civil or criminal proceedings involving the Property. Notwithstanding paragraph 6(b) above, if Purchaser's environmental audit of the property indicates the presence of environmental contamination, Purchaser shall promptly provide the Authority a copy of such audit report and the Authority the shall have fifteen (15) days after receipt of same to notify Purchase whether the Authority elects to clean up such contamination and/or obtain an assessment of the cost and the estimated time to clean up the contamination and deposit a sum equal to that cost in a trust. Should the estimated time for cleanup extend beyond one hundred eighty (180) days after the Approval Date, or if Authority fails to either clean up or deposit the cost of cleanup, Purchaser shall have the option upon written notice to Authority to terminate this Agreement and receive a refund of the deposit and Purchaser and Authority shall be relieved from all obligations under this Agreement except those expressly surviving termination. If Purchaser does not terminate this Agreement, Purchaser shall be deemed to have waived its right to terminate this Agreement and closing shall be held (i) Closing Date (as hereinafter defmed) or (ii) if Authority initiates cleanup, twenty (20) days after the date that Authority has provided Purchaser with an engineer's certification that the contamination cleanup has been completed, whichever is later. If Purchaser proceeds to closing, Purchaser shall accept the Property "AS IS" and "WHERE IS" in accordance with the terms and conditions of Paragraph 6(b) above. (d) In the event Purchaser does not close on the purchase of the Property, within seven (7) days after the termination or expiration of this Agreement Purchaser shall deliver to Authority copies of all tests, reports, surveys, environmental audits and other audits relating to the Property which have been prepared by, on behalf of, or for Purchaser. 7. Closin2. The Closing shall take place within thirty (30) days after expiration of the Inspection Period on a date and time specified by Authority (the "Closing Date") upon not less then ten (10) days' written notice to Purchaser. Closing shall be held at the offices of Authority's counsel, Broad and Cassel, 390 North Orange Avenue, Suite 1100, Orlando, Florida 32801, or at such other place as the Purchaser and Authority shall agree. Notwithstanding the foregoing, closing may be by mail and/or overnight courier. 8. Closin2 Documents. The Authority shall prepare and convey title to the Property by Special Warranty Deed, free and clear of all encumbrances and liens of whatsoever nature, except taxes for the year of closing, zoning, public utility easements and other Permitted Exceptions. The Authority shall also deliver to the Purchaser a lien and possession affidavit at closing sufficient to satisfy the requirements of Section 627.7842(1)(b) and (c), Florida Statutes. 9. closin2 Costs; Prorations. The Authority shall prepare and pay for the cost of preparation of the Special Warranty Deed and the Lien and Possession Affidavit to be issued at 4 nDI "\D~I'" rc.-T\~7~na ~ closing. Purchaser shall for the appraisal of the Property; all costs of the recording of the deed (including documentary stamp taxes, if any); the cost preparation of the survey and other costs of Purchaser's due diligence of the Property; all costs related to Purchaser's financing of the property (including all costs related to any note and mortgage obtained by Purchaser, any lender charges or fees, documentary stamps, intangible taxes and recording fees); and the premium for the title policy to be issued at closing. The Parties shall each pay their own attorney's fees. Real property taxes and assessments on the Property, if any, shall be prorated as of the date of closing. 10. Delivery of Possession; Risk of Loss. Purchaser shall be given possession on the Closing Date. If any improvements located on the Property at the time of the execution of this Agreement are damaged by fire or other casualty prior to closing (other than through the fault of Purchaser, its employees, contractors 'or agents) and can be restored to substantially the same condition within a period of thirty (30) days after such destruction occurs, Authority shall promptly notify Purchaser in writing if it elects to restore the improvements and, if so, shall promptly restore same at Authority's cost, and the Closing Date shall be extended accordingly. If the Authority elects not to restore the improyements or if such restoration cannot be completed within said period of time, Authority shall so notify Purchaser and Purchaser shall have the option of either (i) terminating this Agreement, whereupon neither of the parties shall have any further obligation hereunder, or (ii) proceeding to closing and accepting the condition of the Property without a reduction in the Purchase Price, but with an assignment of any available insurance proceeds. All risk of loss prior to closing shall be borne by Authority, except to the extent of Purchaser's liability for damage to the Property caused by Purchaser, its employees, agents or contractors. 11. Representations Re2:ardin2: Real Estate Brokers. Authority hereby represents and warrants to Purchaser that Authority has not engaged or dealt with any agent, broker or fmder in regard to this Agreement or to the sale and purchase of the Property contemplated hereby. Purchaser hereby represents and warrants to Authority that Purchaser has not engaged or dealt with any agent, broker or finder in regard to this Agreement or to the sale and purchase of the Property contemplated hereby. Purchaser hereby indemnifies Authority and agrees to protect, defend, and hold Authority free and harmless from and against any and all claims, actions, causes of action, liability, loss, cost, damage and expense, including but not limited to, attorneys' fees and costs of litigation (whether or not any action is actually commenced, and whether incurred before, during or after trial, or upon any appellate level), which Authority shall ever suffer or incur because of any claim by any agent, broker or fmder engaged by Purchaser, or with whom Purchaser has dealt, other than Broker, and whether or not meritorious, for any fee, commission or other compensation with respect to this Agreement or to the sale and purchase of the Property contemplated hereby. The indemnity contained in this Paragraph 11 shall surviye the closing or any termination of this Agreement. 5 12. Failure of Performance. (a) On the part of Authority: In the event of a default by Authority under this Agreement, then as Purchaser's sole remedy hereunder, Purchaser may recover a refund of its deposit or seek the remedy of specific performance of Authority's obligations hereunder. Purchaser expressly waives any and all other remedies, legal or equitable, including any action for damages. (b) On the part of Purchaser: In the event of a default by Purchaser under this Agreement, then Authority, shall have the right to immediately claim and be paid the Deposit. 13. No Recordine:. Neither this Agreement nor any record or memorandum thereof shall be recorded in the Public Records or any county in the State of Florida. Recording of this Agreement or any of the terms and provisions hereof, or any record or memorandum thereof Purchaser shall, at the option of Authority, immediately constitute a material breach and default by Purchaser hereunder, and grounds for termination ofthe Agreement by Authority. 14. Notices. Any notices which may be permitted or required hereunder shall be in writing and shall be deemed to have been duly given as of the date and time the same are personally delivered, or within three (3) days after depositing with the United States Postal Service, postage prepaid by registered or certified mail, return receipt requested, or within one (1) day after depositing with Federal Express or other overnight delivery service from which a receipt may be obtained, and addressed as follows: Authority: ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY 525 South Magnolia Avenue Orlando, Florida 32801-4414 Attn: Executive Director Telephone: (407) 316-3800 Facsimile: (407) 316-3801 With a copy to: BROAD AND CASSEL 390 North Orange Avenue, Suite 1100 Orlando, Florida 32801 Attn: Robert F. Mallett, L.L.C. Telephone: (407) 839-4200 Facsimile: (407) 425-8377 Purchaser: CITY OF OCOEE 150 North Lakeshore Drive Ocoee, Florida 34731 Attn: J. Antonio Fabre, Senior Planner Telephone: (407)905-3100 Facsimile: (407) 905-3158 6 nDI "\DI:AI r~T\~"'~I"\C 0") With a copy to: FOLEY & LARDNER. P.A 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Attn: Paul Rosenthal, Esquire Telephone: (407) 244-3239 Facsimile: (407) 648-1743 or to such other address as either party hereto shall from time to time designate to the other party by notice in writing as herein provided. 15. General Provisions. No failure of either party to exercise any power given hereunder or to insist upon strict compliance with any obligation specified herein, and no custom or practice at variance with the terms hereof, shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. This Agreement contains the entire agreement of the parties hereto, and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect. Any amendment to this Agreement shall not be binding upon any of the parties hereto unless such amendment is in writing and executed by Purchaser and the Authority. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and assigns. Time is of the essence of this Agreement. Wherever under the terms and provisions of this Agreement the time for performance falls upon a Saturday, Sunday, or Legal Holiday, such time for performance shall be extended to the next business day. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same agreement. The headings inserted at the beginning of each paragraph of this Agreement are for convenience only, and do not add to or subtract from the meaning of the contents of each paragraph. Purchaser and the Authority do hereby covenant and agree that such documents as may be legally necessary or otherwise appropriate to carry out the terms of this Agreement shall be executed and delivered by each party at closing. This Agreement shall be interpreted under the laws of the State of Florida. Purchaser and Authority acknowledge that this Agreement was prepared after substantial negotiations between the parties and this Agreement shall not be interpreted against either party solely because such party or its counsel drafted the Agreement. The parties hereto agree that venue for any legal action authorized hereunder shall be in the courts of Orange County, Florida. TIME IS OF THE ESSENCE OF TillS AGREEMENT AND EACH AND EVERY PROVISION HEREOF. 16. Severabilitv. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law. 17. Attornevs' Fees. In the event of any dispute hereunder or of any action to interpret or enforce this Agreement, any provision hereof or any matter arising herefrom, the 7 nOI "I:\CC.l!.1 r~'T\Il:':"7ot:nCl'" prevailing party shall be entitled to recover its reasonable costs, fees and expenses, including, but not limited to, witness fees, expert fees, consultant fees, attorney (in-house and outside counsel), paralegal and legal assistant fees, c<?sts and expenses and other professional fees, costs and expenses whether suit be brought or not, and whether in settlement, in any declaratory action, in mediation, arbitration or bankruptcy, at trial or on appeal 18. Waiver of Jurv Trial. PURCHASER AND AUTHORITY VOLUNTARILY WAIVE A TRIAL BY JURY IN ANY LITIGATION OR ACTION ARISING FROM THIS AGREEMENT. 19. Desim. Location and Fundin2 Disclosure. Purchaser acknowledges that the design and location of any contemplated or proposed roadway systems or access scenarios to or from the Property are not guaranteed; and (ii) funding may not be completed for any such proposed roadway systems. 20. Effective Date: Approval Date. When used herein, the term "Effective Date" or the phrase "the date hereof' or "the date of this Agreement" shall mean the last date that either the Authority or Purchaser execute this Agreement. It is specifically acknowledged and agreed that this Agreement is subject to final approval by the Authority's Right of Way Committee and Board of Directors. This Agreement shall be presented to the Right of Way Committee and Authority Board at their next regularly scheduled respective meetings occurring no earlier than ten (10) days after receipt by Authority's Counsel of this Agreement executed by Purchaser and a review appraiser's certification certifying the proposed sale price as reasonable. The date of the Authority Board's final approval of this Agreement, as set forth in written notice from Authority to Purchaser, shall be deemed the "Approval Date". If this Agreement is not approved by the Authority Board, the Agreement shall be terminated and, upon return of Deposit to Purchaser, the Parties shall have no further obligations or liabilities hereunder except those expressly surviving termination of this Agreement. 21. Escrow. The Escrow Agent shall promptly deposit all funds received by it in an interest-bearing money market account established at a federally insured bank. Any interest in the Deposit shall be payable to the party to whom the Deposit is to be disbursed by the Escrow Agent under the terms of this Agreement. Failure of clearance of funds shall not excuse performance by the Purchaser. The Escrow Agent agrees to comply with the provisions of this Agreement insofar as the Escrow Agent is involved, and the Escrow Agent is expressly authorized to make disbursements and debits as contemplated by this Agreement. All parties agree that the Escrow Agent shall not be liable to any party or person whomsoever for misdelivery to Purchaser or Authority of items subject to escrow, unless such misdelivery shall be due to willful breach of Agreement or gross negligence on the part of the Escrow Agent. In the event of doubt as to its duties or liabilities, the Escrow Agent may, in its sole discretion, continue to hold the monies which are the subject of this escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or it may interplead the Deposit and deposit all of the monies then held pursuant to this Agreement with any court of competent jurisdiction, and upon notifying Authority and Purchaser, all liability on the part of the Escrow Agent under this Agreement shall fully terminate, except to the extent of accounting for any monies theretofore 8 delivered out of escrow. Authority and Purchaser agree that the status of Authority's counsel as Escrow Agent under this Agreement does not disqualify said counsel from representing Authority in connection with this transaction and in' any disputes that may arise between Authority and Purchaser, or any other party, concerning this transaction, including any dispute or controversy with respect to the Deposit. 22. Radon Gas Notification. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your public health unit. IN WITNESS WHEREOF, the Parties have hereunto set their hands the day and year above written. WITNESSES: "AUTHORITY" ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY, a public corporation under the laws of the State of Florida Witness: By: Name: Title: Witness: APPROVED AS TO FORM FOR EXECUTION BY A SIGNATORY OF THE ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY Legal Counsel: Broad and Cassel By: Date: 9 nI:'l 1\1:'1:.6.1 C'CT\C:::7oc:nlCl ., Witness: Witness: "PURCHASER" CITY OF OcOEE, a municipal corporation under the laws of the State Florida By: Name: Title: Tax ID # 10 Exhibit "A" ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY Sheet 1 of2 PROJECT 602/603 - S.R. 429/ WESTERN BELTWAY SURPLUS PROPERTY PARCELS 62-131, 62-132 LEGAL DESCRIPTION A portion of that certa.in Parcel of land described in Official Records Book 5140, Page 1052, and that certain Parcel of land' described in Official Records Book 5140, Page 1505, Public Records of Orange County, Florida, and lying in the Southwest 1/4 of Section 7, Township 22 South, Range 28 East, Orange County, Florida. being more particularly described as follows: I Commence at the Northwest corner of the Southwest 1/4 of Section 7, Township 22 South, Range 28 East, Orange County, Florida said point being a 6 inch by 6 inch concrete monument; thence S.OooI8'20"E.. along the West line of the Southwest 1/4 of said Section 7 for 1321.69 feet to the North line of the Southwest 1/4 of the Southwest 1/4 of said Section 7; thence N.870S1 '01 "E along said North line for 624.53 feet to the Easterly Limited Access Right-of-Way line of the Western Beltway, State Road No. 429, Orlando-Orange County Expressway Authority Project No.75320-6460-602/603 and the POINT OF BEGININNG; thence continue N.87051'OI"E. along said Easterly Limited Access Right-of-Way line for 10.00 feet; thence N.Qlo43'~8"W. along said Easterly Limited Access Right-of-Way line for 520.02 feet; thence N.87051 '02"E. along said Easterly Limited Access Right-of-Way line for 290.85 feet; thence N.Ol043'2S"W. along said Easterly Limited Access Right-of-Way line for 1273.05 feel to the Easterly line of the aforesaid Parcel of land described in Official Records Book 5140, page 1052~ thence S.19052'25"E. along said Easterly line for 2P8 feet; thence S.42023'10"E. along said Easterly line faT 135.00 feet; thence SOsoll'SO"E. along said Easterly line for 203.00 feet;. thence S.l2016'38"E. along said Easterly line for 172.00 feet; thence S.16026'18"W. along said Easterly line for 137.99 feet; thence S.06041 '41 "E. along said Easterly line for 220.00 feet; thence S.400 l7'22"E. along said Easterly line for 395.00 feet; thence S.52043'08"E. along said Easterly line for 43.00 feet; thence S.00023'41''W. along said Easterly line, also being the East line of the Northwest 1/4 of the Southwest 1/4 of said Section 7, for 610.07 feet to the North line of the Southwest 1/4 of the Southwest 1/4 of said Section 7: thence S.87051 'Ol"W. along said North line for 626.00 feet to the East line of the aforesaid Parcel of land described in Official Records Book 5140, Page l505~ thence S.Oo023'4l"W. along said E.ast line for 328.65 feet; thence S.87051 '01 "W. along the South line of said Parcel described in Official Records Book 5140, Page 1505, for 34.27 feet to the aforesaid Easterly Limited Access Right-of-Way line of the Western Beltway; thence N.Olo43'28''W. along said Easterly Limited Access Right-of-Way line for 328.32 feet to the POrNT OF BEGINNING. I I I I I I I Containing 13.010 acres, more or less. I October J 1, 2005 071640.70 I I I S:\OOCEA \429CLOSEOUTlPart A \PROJECT 602_603 _fiIes\LEGAl S\P ARCEl:... 62-131 Surplus.doc: I Parcels 62-105 & 62131/132 Proiect: SR 429 Western Expressway Part A RIGHT OF ENTRY AGREEMENT This RIGHT OF ENTRY AGREEMENT ("Agreement") is made and entered into on this _ day of , 2006, by and between ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY ("Authority") and CITY OF OCOEE, a municipal corporation of the State of Florida, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761-2258 ("City") (Authority and the City sometimes collectively referred to herein as the "Parties"). RECITALS: Authority holds title to lands commonly referred to as surplus Parcels 62-105 and 62-131/132 as more particularly described on Exhibit "A" and Exhibit "B" attached hereto and incorporated herein (collectively referred to herein as the "Property"), which Property is adjacent to S.R. 429, the Senator Daniel Western Expressway Part A (the "Expressway"). As of the Effective Date of this Agreement the Parties are engaged in negotiations of Real Estate Sale and Purchase Agreements whereby it is contemplated Authority shall sell the Property to City. In connection therewith, the City desires an advance right of entry to begin survey and due diligence inyestigations with respect to the Property and , subject to the terms of this Agreement, Authority agrees to grant a temporary right of entry to City. to commence such work: NOW, THEREFORE, in consideration of the above-stated premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Authority and City hereby agree as follows: 1. The recitals above are true and correct and incorporated by reference herein: 2 The City and/or its employees, agents, consulting engineers, contractors and other representatives s shall have the right to enter upon the Property for the purposes of making soil tests, site studies and surveys; provided, however, such entry shall not unreasonably damage the Property or interfere with Authority's use or occupancy of the Property or the Expressway. City shall repair any damage occurring as a result of such activities and restore the Property to substantially the condition it was in immediately prior to City's entry thereon. All such entries onto the Property shall be at the sole risk and expense of City and Authority shall have no liability for any injuries or damages sustained by City or any of City's agents or contractors or any other third parties. To the extent permitted by law, City agrees to indemnify and hold Authority harmless from any and all loss, claim, action, demand or liability which may arise against the Authority or the Property arising out directly or indirectly out of Purchaser's exercise of its rights pursuant to this Agreement, including any damage to the Property or the Expressway. The foregoing indemnities shall survive the expiration or termination of this Agreement. 3. This Right of Entry Agreement shall expire as to each parcel of the Property upon the earlier to occur of (1) the date that the Parties enter into a Real Estate Sale and Purchase 1 ORL 1 IREALEST\7711 08.1 12842/0001 RFM rfm 4/13/2006926 AM Agreement with respect to each parcel of the Property, or (2) in one (1) year from the date of full execution hereof. Upon the Parties entering into a Real Estate Sale and Purchase Agreement with respect to each parcel of the Property the terms of such agreement(s) shall govern the City's right of access and inspection of the Property. IN WITNESS WHEREOF, the Authority and City have executed and delivered this Right of Entry Agreement the date herein first above written. WITNESSES: "CITY" CITY OF OCOEE By: S. Scott Vandergrift, Mayor Witness: Witness: 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 ,20_ APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON ,20_ UNDER AGENDA ITEM NO. FOLEY & LARDNER LLP By: City Attorney 2 ORL 1 IREALEST\7711 08.1 12842/0001 RFM rfm 4/13/20069:26 AM WITNESSES: " AUTHORITY" ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY, a public corporation and agency of the State of Florida Print Name: By: Title: Print: Print Name: APPROVED AS TO FORM AND LEGALITY FOR EXECUTION BY A SIGNATORY OF THE ORLANDO- ORANGE COUNTY EXPRESSWAY AUTHORITY Legal Counsel: By: Broad and Cassel, Attorneys at Law Date: 3 ORL 1\REALEST\771108.1 12842/0001 RFM rfm 4/13/2006 926 AM EXHIBIT "A" LEGAL DESCRIPTION 4 ORL 1\REALEST\7711 08.1 12842/0001 RFM rfm 4/13/2006 9:26 AM