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HomeMy WebLinkAbout2009 02 09 Consent 204 Right-of-Way Acquisition Agreement with Metro ChurchCOMMISSION AGENDA CONSENT ( X INFORMATIONAL ITEM 2 0 4 PUBLIC HEARING REGULAR February 9, 2009 MGR~~'"- /DEPT / 4~~" Meeting Authorization REQUEST: The Public Works Department requests City Commission authorization to enter into aRight-of--Way Acquisition Agreement with the Metro Church of Christ for the acquisition of right-of--way needed for a right-turn deceleration lane on S.R. 434 at Vistawilla Drive PURPOSE: The Public Works Department requests City Commission authorization to enter into aRight-of--Way Acquisition Agreement with the Metro Church of Christ for the acquisition of right-of--way needed for aright-turn deceleration lane on S.R. 434 at Vistawilla Drive CONSIDERATIONS: At the January 26, 2009 City Commission meeting, the Commission authorized Staff to proceed with construction bidding for aright-turn deceleration lane on S.R. 434 at Vistawilla Drive. The design is complete and the plans are ready to be advertised for bid. This agenda item consists of an Agreement between the City and Metro Church, prepared by the City Attorney, for the acquisition of the final segment of right-of--way needed for construction of the turn lane. The proposed turn lane has a total length of approximately 335 feet, plus a taper section. The first 195-feet is adjacent to the Colonial Bank property, and the remaining 140-feet plus the taper is adjacent to the Metro Church property (see Exhibit A). In order to construct the turn lane in accordance with FDOT standards, the City must acquire a strip of land approximately 7-feet wide along the entire length of the turn lane. • In June 2006, the City acquired a total of 1,704.09 square feet of land along Colonial Bank's S.R. 434 frontage for $19,952, which equates to a unit price of $11.64 per square foot. The unit price of $11.64 per square foot matched Colonial Bank's purchase price per square foot of the property when they bought the vacant land in 2004. Colonial Bank accepted payment in the form of transportation impact fee credits since the property was being developed at the time. Consent Agenda Item #204 February 9, 2009 Page 2 of 2 • Metro Church has accepted the City's offer to use the same unit price of $11.64 per square foot for the 1,210 square foot piece of land needed from Metro Church to complete the turn lane, for a total amount of $14,084.40. • After the City acquires the necessary right-of--way from Metro Church, the church's existing monument sign will be located approximately 12-feet from the new property line, which would be in not be in compliance with the required 15-foot front setback (Sec 20- 470.2.b) unless the set back is varied by development agreement. Section 7 of the Agreement addresses this issue and permits the sign to remain in its current location without violating the setback requirement. FUNDING: The $14,084.40 will be funded from the Transportation Impact Fee Fund as a part of the $125,000 line item for the Vistawilla Turn Lane project. RECOMMENDATION: Staff recommends that authorization be given to enter into aRight-of--Way Acquisition Agreement with the Metro Church of Christ for the acquisition of right-of- way needed for aright-turn deceleration lane on S.R. 434 at Vistawilla Drive. Further, to the extent necessary, authorizing the City manager and City Attorney to approve technical changes to the Right-of--Way Acquisition Agreement if requested by Metro Church. ATTACHMENTS: 1. Exhibit A -Aerial Photo 2. Right-of--Way Acquisition Agreement COMMISSION ACTION: ,~ ~" ~ ~ ~ q t ~ . '~ '~r~ i ?'. x ,~ asP ..., ..~. ,~ ~ _ ~.e«,.- m ~ L O ~ ~L ~ ~ ~ tC +~+ t t~ ,O O O O ~ ~ .'~~ L ^ 6 O N ~~ ~~ M N µ ~ ~ r, J~{yy ;' P '~ .fa' ~ i '~ "+. yvM ~, '.k ,~i. w. ~"~ ro ~ ~ ~ '~' ~~...~ ~~ ~ ~ ~ .:3M t ~ ~, S ' e_,."' if _ ~ ~"4" ~ ~ ~ ~ ~ ~" ri ,y ~y~ . ~ .. x ,~ ;„ a ~. d , r~1 # .w I € vim, RIGHT-OF-WAY ACQUISITION AGREEMENT THIS RIGHT-OF-WAY ACQUISITION AGREEMENT (the "Agreement") is made and executed this day of , 2009, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City" or "City of Winter Springs"), whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and METRO CHURCH OF CHRIST INC., ("Metro") a Florida not for profit corporation, whose address is 1491 East State Road 434 #102, Winter Springs, Florida 32708. WITNESSETH: WHEREAS, Metro is the owner of certain real property located within the City of Winter Springs along State Road 434 which is currently being used as a church and other commercial uses; and WHEREAS, the City desires to acquire a portion of the real property abutting State Road 434 for purposes ofconstructing aright-turn deceleration lane for Vistawilla Drive and the parking lot on the aforementioned property; and WHEREAS, Metro desires to convey a portion of its real property to the Ciry to facilitate the construction of the deceleration lane; and WHEREAS, Metro acknowledges that the deceleration lane will improve the access to its real property along State Road 434 and as such, Metro desires to cooperate with the City regarding the City's acquisition of the real property which is subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. Section 2. The Property. The Property, which is subject to and bound by the terms and conditions of this Agreement, is legally described in EXHIBIT "A," which is attached hereto and incorporated herein by this reference (the "Property"). Section 3. Purchase and Sale of Property. The Property shall be sold to the City by Metro under the terms and conditions of this Agreement. Prior to closing, Metro shall remove or Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 1 of 9 have removed all personal property located on the Property (if any). The purchase price of the Property (hereinafter "Purchase Price") shall be Fourteen Thousand Eighty-Four and 40/100 Dollars ($14, 084.40). No deposit shall be required and the full amount of the Purchase Price shall be payable by check or wire transfer at Closing. Section 4. City Due Diligence and Inspection of Proper 4.1 Feasibility Period. City shall have sixty (60) days from the effective date of this Agreement to determine the feasibility of City's purchase ofthe Property, ("Feasibility Determination Period"). During the Feasibility Determination Period, City may undertake, at City's expense, such physical inspections, tests and other investigations as may be deemed necessary by the City in order for City to evaluate the feasibility of the City's purchase of the Property. Such investigations shall include, but are not limited to, an Environmental Audit up to Level II if City determines it necessary after having received the results of a Level 1 Environment Audit. For purposes of undertaking physical inspections, tests or investigations of the Property, Metro hereby grants to City, their agents, and professionals engaged by City, the right to enter upon the Property and the church parking lot adjacent thereto during the Feasibility Determination Period. Said right of entry is conditioned upon (a) the City giving Metro reasonable notice, and (b) such entry being during normal business hours. The presence on the Property and church parking lot of such personnel shall only be for the purpose of conducting such inspections, tests or investigations, and no other personal activity shall be permitted. Any alterations or changes to the Property that are a direct result of the inspecting, testing and investigations will be repaired and replaced by City if a closing does not occur. To the extent permitted by law, City shall indemnify Metro against any loss or damages to the Property arising out, of or in connection with, any inspection, testing or investigation of the Property by City, including but not limited to, nonpayment of services rendered to or for the benefit of City or mechanics' liens or liability for damage to persons or property arising from any activity permitted hereunder or any change in the existing condition of the Property by City or its agents, servants, employees, contractors or representatives. This indemnification and agreement to hold harmless shall survive Closing or termination of this Agreement. Without limiting the generality of the foregoing, but in addition thereto, in the event this Agreement is terminated by the City, City shall furnish proof reasonably acceptable to Metro (in the form of affidavits, lien waivers or releases, paid invoices and the like) that the Property has been returned to the condition in which they were prior to City's inspections and that all City's agents, servants, employees, contractors and representatives who have entered upon the Property for the purpose of inspection, tests or otherwise have been paid in full so that a lien could not be validly filed against the Property. The foregoing is not intended to apply to matters created by or resulting from acts by Metro or their agents, servants, employees, contractors and representatives. The provisions of this subparagraph shall survive any termination of this Agreement. The City's indemnification ofthe Metro will not include any loss or damage due to pre- existing conditions, problems or deficiencies of the Property that are discovered through the Right-of--way Acquisition Agreement City of W inter Springs /Metro Church of Christ Inc. Page 2 of 9 inspection, testing and investigation authorized herein. The decision as to whether it is feasible to purchase the Property shall be at the sole discretion of the City. If the City determines that it is not feasible to purchase the Property, then City may terminate this Agreement and the parties shall have no further liability hereunder. This provision shall not affect any other rights of the City under this Agreement including, but not limited to the right to inspect the title of the Property. In the event closing fails to occur for any reason whatsoever, City agrees, promptly on request, to turn over to Metro copies of all investigations performed in connection with the Properly by or on behalf of City and to return to Metro all materials and information furnished by Metro to City in connection with the transaction contemplated by this Agreement, all without charge, cost or expense to Metro, and the provisions of this paragraph shall survive any termination of this Agreement. 4.2. Title Commitment/Policy. At least thirty (30) days before expiration of the Feasibility Determination Period, City, at City's expense, shall obtain a Title Insurance Commitment (hereinafter "Commitment") issued by a company (hereinafter "Company") reasonably acceptable to City and/or City's Counsel. The Commitment shall commit the Company to issue to City, upon recording of the deed conveying title to the Property to City, a fee owner's policy of title insurance, (ALTA Owner's Policy 10-17-92, Florida Modified), in the amount of the Purchase Price of the Property or the minimum policy amount insured by the Company, subject only to those exceptions reasonably acceptable to City's Counsel and the so called standard exceptions contained in the standard ALTA Form of owner's title insurance commitment. The Commitment shall provide that the applicable standard exceptions will be deleted by the Company upon the furnishing of an ownership and lien affidavit in form required by Company (and Metro agrees to furnish such Affidavit as part of the Closing). City shall have fifteen (15) days from the date of their receipt of the Commitment to examine the same and to notify Metro in writing specifying any defects or reasonable objections to Metro's title. Metro shall reply within ten (10) days after actual receipt of City's written title objections, if any, stating which objections Metro will cure at or prior to Closing and those which Metro will not cure. In the event Metro elects to attempt to cure the defect, Metro shall have no liability or obligation in the event Metro is unsuccessful in curing same. Moreover, Metro shall in no event be required to expend any money or institute any legal proceedings in connection with the curing of any title defects. In the event Metro does not cure the defect or Metro notifies City in writing that the defect will not be cured, City may, within fifteen (15) days after the receipt of such notice from Metro: (1) accept title in its then existing condition without reduction of the Purchase Price or cash to close or (2) terminate this Agreement. If City fails to notify Metro of City's election within said fifteen (15) day time period, City shall be deemed to have elected to accept title in its then existing condition without reduction of the Purchase Price or cash to close as provided in this Agreement. Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 3 of 9 4.3 Zoning and other Restrictions. The City shall take title subject to: zoning, restrictions, prohibitions and other requirements imposed by governmental authority, restrictions and matters appearing on the plat or otherwise common to the subdivision, public utility easements of record, taxes for the year of closing and subsequent years. 4.4. Survey. City, at City's expense, within the Feasibility Determination Period, may have the Property re-surveyed and certified by a registered Florida surveyor. If survey shows encroachment on the Property or that improvements located on the Property encroach on set back lines, easements, lands of others or violate any restrictions, covenants or applicable government regulation, the same shall constitute a title defect. Metro shall address such title defect, if any, in the same manner as other title defects as set forth in paragraph 4.2 above. The parties agree that the City may substitute the re-surveyed legal description of the Property for the legal description contained on Exhibit "A" for closing purposes. Section 5. Closing Procedures. 5.1 Closing Date. The closing of this Agreement, and the transfer of title and possession of the Property, shall occur no later than thirty (30) days after the expiration of the Feasibility Determination Period, (hereinafter "Closing Date"), unless otherwise extended by the terms herein. Closing shall be held at Winter Springs City Hall or by mail. At City's discretion, City may extend the Closing up to thirty (30) days by providing three (3) days advance written notice to Metro 5.2 Conveyance. Metro shall convey to City marketable title to the Property by Statutory Warranty Deed; and transfer of licenses, permits, orders, authorizations and other governmental permissions by assignment to the extent transferable without any warranties or representations express or implied. (a) Documents For Closing: City shall furnish the applicable Closing Documents including, but not limited to, the Deed, Bill of Sale, Assignments, Ownership and Lien Affidavit, Certificate ofNon-Foreign Status, satisfaction and release of liens or mortgages, and Closing Statement. (b) Allocation of Expenses: City shall pay the premium for the owner's ALTA Owner's Policy 10-17-92 (Florida Modified) Title Insurance Policy, charges for related title services including but not limited to title or abstract charge, title examination, and settlement and closing fee, the cost of recording corrective instruments and Florida Documentary Stamps to be affixed to the Deed. City shall pay documentary stamps and intangible tax on any mortgage, mortgagee title insurance commitment with related fees, recording of mortgage and any financing statements. City shall pay the cost of recording the Deed. Each party shall pay their respective attorney's fees Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 4 of 9 (c) Prorations: Real property taxes, special assessments and ad valorem taxes for the year of closing and any other pro-ratable items shall be prorated as of the Closing Date with due allowance made for maximum allowable discount. All real property taxes, special assessments and ad valorem taxes for prior years shall be paid by Metro. In the event the current assessment and mileage are not available, all taxes for the year of Closing shall be based on the previous years assessment and millage. If any substantial difference (i.e., over $500.00 dollars) occurs in the actual tax bills when issued for the year of Closing, the parties hereto agree to make adjustments based on such tax bills when they become available. (d) FIRPTA Acknowledgment: At Closing, the Metro shall execute and deliver to City two (2) original counterparts of the Certification of Non-Foreign Status in form reasonably satisfactory to City. In the event (a) Metro does not so execute and deliver to City such Certification ofNon-Foreign Status, or (b) such Certification of Non-Foreign Status if not fully and properly completed and executed as of the Closing Date, or (c) City is not entitled to rely upon such Certification, then, in any of such events, City shall withhold ten percent (10%) of the Purchase Price and pay the withheld amount to the Internal Revenue Service pursuant to Internal Revenue Code Section 1445. Any amount thus withheld by City shall be deemed to have been paid by City in cash at Closing as part of City's obligation to pay the Purchase Price hereunder. (e) Ownership and Lien Affidavit: Metro shall furnish to City at the time of closing an affidavit attesting to the absence, unless otherwise provided for herein, of any Notices to Owner or Claims of Lien of potential lienors known to Metro and further attesting to the unquestioned ownership by Metro of the Property and further attesting that there have been no improvements to the Property for 90 days immediately preceding the Closing Date for which payment has not been made in full, or for which payment has not been secured or provided for, all in form acceptable to Metro, City and Company. If Property has been improved or repaired within 90 days at the request of and authorization by Metro immediately preceding the Closing Date, Metro shall deliver releases or waivers of construction liens executed by all general contractors, subcontractors, suppliers, and materialmen in addition to Metro's lien affidavit setting forth the names of all such general contractors, subcontractors, suppliers and materialmen and further aff rming that all charges for improvements or repairs which could serve as a basis for a construction lien or a claim for damages have been paid or will be paid at closing of this Agreement. (f) Proceeds of Sale and Closing Procedure: Upon clearance of funds, the deed of conveyance and other closing documents (hereinafter "Closing Documents"), each duly executed, shall be delivered to the authorized agent of Company at closing. Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 5 of 9 Following examination by the agent of the public records of Seminole County, Florida, from the effective date of the Commitment up to Closing Date (hereinafter "Gap Period") and delivery to City of the Commitment marked in order to show compliance with all conditions of Closing and marked to insure the Gap Period all of which shall occur on or before closing, the net sales proceeds shall be promptly disbursed to Metro by Company or the authorized agent of Company at closing. (g) Further Acts, etc.: At the closing and up to thirty (30) days thereafter, Metro and City agree to execute and deliver such other and further instruments and to take such further actions as either of them or their counsel may reasonably request of the other in order to fully implement the terms of this Agreement and the closing thereof as long as said request is consistent with the respective obligations of the parties as set forth in this Agreement. This paragraph shall survive the closing. Section 6. Defaults. 6.1 Opportunity to Cure. No default as to any provision of this Agreement shall be claimed or charged by either party hereto against the other until notice thereof has been given to the defaulting party in writing, and such default remains uncured for a period of five (5) days after the defaulting party's receipt of such notice. Notwithstanding the above, the Closing Date shall not be changed, delayed, postponed or extended by this requirement for notice of default. 6.2 City Default. If City defaults on its obligations to purchase under this Agreement, without fault on the part of the Metro, Metro may terminate this Agreement. 6.3 Metro Default. If Metro defaults on its obligation to sell under this Agreement, without fault on the part of the City, City, at its option, may seek specific performance or alternatively, City may terminate this Agreement and Metro shall reimburse City for all actual costs and expenses incurred by City in preparing for Closing including, but not limited to, costs associated with the Feasibility Determination Period, survey costs, title inspection and commitment costs and appraisal fees, as its liquidated damages in full and final settlement of all claims City may have against Metro for breach of this Agreement. Section 7. Location of Existing Monument Sign. The parties acknowledge that Metro currently owns and maintains an existing monument sign for the Metro Church on the real property which is adjacent to the southern boundary line of Property. Further, upon conveyance of the Property to the City, the parties acknowledge that said monument sign will no longer comply with the fifteen (15) foot minimum set back requirement under section 20-470(2)b., Winter Springs Code, because the conveyance of the Property to the City Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 6 of 9 will extend the southern boundary line of State Road 434 closer to the location of the monument sign. Consequently, in consideration of Metro agreeing to convey the Property to the City and in order to avoid placing a hardship on Metro by requiring the relocation of the existing monument sign, the Ciry agrees to vary the aforementioned set back restriction pursuant to section 20-474, Winter Springs Code. Therefore, the existing monument sign shall be permitted to remain at its current location and within the fifteen (15) foot set back requirement. This paragraph shall survive closing. Section 7. Notices. Any notices or reports required by this Agreement shall be sent to the following: For the City: Mr. Kevin Smith City Manager City of Winter Springs 1126 E. S.R. 434 Winter Springs, FL 32708 With a copy to: Anthony A. Garganese City Attorney 111 N. Orange Avenue Suite 2000 Orlando, FL 32802 For Metror: Mr. Daniel Holland Senior Pastor Metro Church 1491 E State Road 434 # 102 Winter Springs, FL 32708 Section 8. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. Section 9. Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any litigation pertaining to this Agreement shall be in Seminole County, Florida. Section 10. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors and assigns) and approved by the City Commission. Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 7 of 9 Section 11. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Metro as to the subject matter hereof. Section 12. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. Section 13. Effective Date. This Agreement shall become effective upon approval by the City of Winter Springs City Commission and execution of this Agreement by both parties. Section 14. Sovereign Immunity. Notwithstandingany other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. Section 15. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Section 16. Attorney's Fees and Costs. In connection with any action arising from or in connection with this Agreement, the prevailing party, to the extent permitted by law, shall be entitled to an award of its costs and expenses, including reasonable attorneys' fees and disbursements, incurred or paid before and at trial or any other proceeding which may be instituted, at any tribunal level, and whether or not suit or any other proceeding is instituted. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. [EXECUTION PAGES FOLLOW] Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 8 of 9 ATTEST: ANDREA LORENZO-LUACES, City Clerk WITNESSES: Print Name: Print Name: CITY OF WINTER SPRINGS, a Florida municipal corporation. JOHN F. BUSH, Mayor METRO CHURCH OF CHRIST, INC., A Florida Non Profit Corporation. Print Name: Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 9 of 9 ~. „ PURPGSE RIGHT OF 14JAY EXHIBIT A strip of land being a portion of Lot 2, Tuskawi{la Tract 15 Porcel 1 -C according to the Plat thereof, as recorded in Plot Book 56, Pages 29 thru 32, Public Records of Seminole County, Florida, being more particularly described as follows: COMMENCE at the Northeast corner of said Lot 2 for a POINT OF BEGINNING; thence S 00' 10'54" W, along the East line of said Lot 2, o distance of 7.25 feet; thence N 89'49'07' W, parallel with the South right of way line of State Road 434, o distance of 142.29 feet; thence N 87'24'15" W, a distance of 49.56 feet, to a point on the South right of way line of State Road 434, according to Plat Book 56, Pages 29 thru 32; thence along sold South right of way line, S 89'49'07' E, o distance of 191.32 feet to the POINT OF BEGINNING. Containing 1210 square feet, or 0.03 acres, more or less. SURVEYORS NOTES 1. Beorings shown hereon are based on the South right of way line of State Rood 434 as described in Plat book 56, Pages 29-32. Public P.ecords of Seminole Count,:. Florida, being ~ 89'49'0"• E. per Plat. z. I hereby certify that the ••Sketch of t)escriptiori' of the above described property is true and correct to the best of my knowledge and belisf as recently drawn under my direction and that it meets the fdinimun-. Technical Standords for Land Surveying rH. 61G5?-5 requirements. 3. Not ~.•o{id '.vithcut the 5lgnoture and r^,aised seal of o ~Iorido licensed surr=ycr and mocper. t7c, :•ciid •.vithaut sheet 2 Date BERT tdQ. LE2108 4%059GG2 DESCRIPTION o7!z4,'zoo7 `lxs FOR Jat Ne.. kale 47059 1~=40 - _ Professional Engineering - ~ ~L~m Consultants, 1nC. r c SOUTHEASTERN SURVEYING & ;`{.4PP1NG CORP. GH. 61.,1%-6, landa =drninistrali,.e 6500 Ali Ameri^an Boule~-ard Cods eauir=5 tha' ~.~~ a=_,.-~ct:,n Orlazaa, Flo1•i ~'a 32810-~t350 drawing bear the notation iha+. f 407 92-8580 Iax(407)292-0141 THIS IS NOT A SURVEY. email: fo~soutt~^~ter~~rveying. om SHEET ? ~~r ; :CRY B~K 5 SEE SHEET ~ -~:`F ~r:El'~H P.EG[STEP.ED LAND SOP~'El'GF. 170 x245 SKETCH ~~~~ DESi~f TIOt~vl i ~v STATE ROAD N0. 434 RiGN7 OF WAY" VARIES SOUTH RIGHT OF WA - -~ U N ( n ~ " I r j N N J 1 W ~ ow UN JC7 ' za V ..1 ~ a ~ r' ~ b '- an ~ O ~ Y m o U J m Q ~ J ~.. ~ a ga J _ Q U N (PLAT BOOK 56,LPAGES N 8124'15" W 49.5&' 5 89'49'07" E 191.32' N 89'49'07" W 142. POINT OF BEGINNING NORTHEAST CORNER LOT 2 (PLAT BOOK 56, PAGES 29-32) 00'10'54" IN 7.25' U N M I LOT 2 I ~ "" ~~ J ~M TUSCAWILLA TRACT 15 PARCEL 1 -C 4~ d ~ `~ I N (PLAT BOOK 56, PAGES 29-32) aw ~ ~ ~~ M ~~ a mW ~ ~a Q U h Q r Q ~ Y ~- a ~ ~~ ~a Q U F- NOTES NOT VALID WITHOUT THE SIGNATURE AND RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER. NOT VALID WITHOUT SHEET 1. THIS IS NOT A SURVEY 7 ' - 40 . Dr ~ c " 4-C59GD[ OYrin .\O _ Job P7o. 4'09 'Hli. SC~.LG Dote. n-,-~c:[GC~ SHEET 2 C~~ ~ ;f d~ -- See Sheei ~ .,• D?=:ription J - 'r ~ ~- ~ SOUTHEASTERN SURVEYING & ldAPPlNC CORP. 6500 Alf American Boulevard Orlando. Florida 32810-435D (407)292-8580 Iaxt 4G'71292-01 41 Cert. ldo. LB-2108 email. infoQsoutheasternsur~:e ing.com RIGHT-OF-WAY ACQUISITION AGREEMENT THIS RIGHT-OF-WAY ACQUISITION AGREEMENT (the "Agreement") is made and executed this ~~ day of Feb ua ~ , 2009, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporati n (the "City" or "City of Winter Springs"),whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and METRO CHURCH OF CHRIST INC., ("Metro") a Florida not for profit corporation, whose address is 1491 East State Road 434 #102, Winter Springs, Florida 32708. WITNESSETH: WHEREAS, Metro is the owner of certain real property located within the City of Winter Springs along State Road 434 which is currently being used as a church and other commercial uses; and WHEREAS, the City desires to acquire a portion of the real property abutting State Road 434 for purposes ofconstructing aright-turn deceleration lane for Vistawilla Drive and the parking lot on the aforementioned property; and WHEREAS, Metro desires to convey a portion of its real property to the City to facilitate the construction of the deceleration lane; and WHEREAS, Metro acknowledges that the deceleration lane will improve the access to its real property along State Road 434 and as such, Metro desires to cooperate with the City regarding the City's acquisition of the real property which is subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. Section 2. The Property. The Property, which is subject to and bound by the terms and conditions of this Agreement, is legally described in EXHIBIT "A," which is attached hereto and incorporated herein by this reference (the "Property"). ection 3. Purchase and Sale of Property. The Property shall be sold to the City by Metro under the terms and conditions of this Agreement. Prior to closing, Metro shall remove or Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ lnc. Page 1 of 9 have removed all personal property located on the Property (if any). The purchase price of the Property (hereinafter "Purchase Price") shall be Fourteen Thousand Eighty-Four and 40/100 Dollazs ($14, 084.40). No deposit shall be required and the full amount of the Purchase Price shall be payable by check or wire transfer at Closing. Section 4. Citv Due Diligence and Inspection of Property 4.1 Feasibility Period. City shall have sixty (60) days from the effective date of this Agreement to determine the feasibility of City's purchase of the Property, ("Feasibility Determination Period"). During the Feasibility Determination Period, City may undertake, at City's expense, such physical inspections, tests and other investigations as may be deemed necessary by the City in order for City to evaluate the feasibility of the City's purchase of the Property. Such investigations shall include, but are not limited to, an Environmental Audit up to Level II if City determines it necessary after having received the results of a Level 1 Environment Audit. For purposes of undertaking physical inspections, tests or investigations of the Property, Metro hereby grants to City, their agents, and professionals engaged by City, the right to enter upon the Property and the church parking lot adjacent thereto during the Feasibility Determination Period. Said right of entry is conditioned upon (a) the City giving Metro reasonable notice, and (b) such entry being during normal business hours. The presence on the Property and church parking lot of such personnel shall only be for the purpose of conducting such inspections, tests or investigations, and no other personal activity shall be permitted. Any alterations or changes to the Property that are a direct result of the inspecting, testing and investigations will be repaired and replaced by City if a closing does not occur. To the extent permitted by law, City shall indemnify Metro against any loss or damages to the Property arising out, of or in connection with, any inspection, testing or investigation of the Property by City, including but not limited to, nonpayment of services rendered to or for the benefit of City or mechanics' liens or liability for damage to persons or property arising from any activity permitted hereunder or any change in the existing condition of the Property by City or its agents, servants, employees, contractors or representatives. This indemnification and agreement to hold harmless shall survive Closing or termination of this Agreement. Without limiting the generality of the foregoing, but in addition thereto, in the event this Agreement is terminated by the City, City shall furnish proof reasonably acceptable to Metro (in the form of affidavits, lien waivers or releases, paid invoices and the like) that the Property has been returned to the condition in which they were prior to City's inspections and that all City's agents, servants, employees, contractors and representatives who have entered upon the Property for the purpose of inspection, tests or otherwise have been paid in full so that a lien could not be validly filed against the Property. The foregoing is not intended to apply to matters created by or resulting from acts by Metro or their agents, servants, employees, contractors and representatives. The provisions of this subparagraph shall survive any termination of this Agreement. The City's indemnification ofthe Metro will not include any loss or damage due to pre- existing conditions, problems or deficiencies of the Property that are discovered through the Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 2 of 9 inspection, testing and investigation authorized herein. The decision as to whether it is feasible to purchase the Property shall be at the sole discretion of the City. If the City determines that it is not feasible to purchase the Property, then City may terminate this Agreement and the parties shall have no further liability hereunder. This provision shall not affect any other rights of the City under this Agreement including, but not limited to the right to inspect the title of the Property. In the event closing fails to occur for any reason whatsoever, City agrees, promptly on request, to turn over to Metro copies of all investigations performed in connection with the Property by or on behalf of City and to return to Metro all materials and information furnished by Metro to City in connection with the transaction contemplated by this Agreement, all without charge, cost or expense to Metro, and the provisions of this paragraph shall survive any termination of this Agreement. 4.2. Title Commitment/Policy. At least thirty (30) days before expiration of the Feasibility Determination Period, City, at City's expense, shall obtain a Title Insurance Commitment (hereinafter "Commitment") issued by a company (hereinafter "Company") reasonably acceptable to City and/or City's Counsel. The Commitment shall commit the Company to issue to City, upon recording of the deed conveying title to the Property to City, a fee owner's policy of title insurance, (ALTA Owner's Policy 10-17-92, Florida Modified), in the amount of the Purchase Price of the Property or the minimum policy amount insured by the Company, subject only to those exceptions reasonably acceptable to City's Counsel and the so called standard exceptions contained in the standard ALTA Form of owner's title insurance commitment. The Commitment shall provide that the applicable standard exceptions will be deleted by the Company upon the furnishing of an ownership and lien affidavit in form required by Company (and Metro agrees to furnish such Affidavit as part of the Closing). City shall have fifteen (15) days from the date of their receipt of the Commitment to examine the same and to notify Metro in writing specifying any defects or reasonable objections to Metro's title. Metro shall reply within ten (10) days after actual receipt of City's written title objections, if any, stating which objections Metro will cure at or prior to Closing and those which Metro will not cure. In the event Metro elects to attempt to cure the defect, Metro shall have no liability or obligation in the event Metro is unsuccessful in curing same. Moreover, Metro shall in no event be required to expend any money or institute any legal proceedings in connection with the curing of any title defects. In the event Metro does not cure the defect or Metro notifies City in writing that the defect will not be cured, City may, within fifteen (15) days after the receipt of such notice from Metro: (1) accept title in its then existing condition without reduction of the Purchase Price or cash to close or (2) terminate this Agreement. If City fails to notify Metro of City's election within said fifteen (15) day time period, City shall be deemed to have elected to accept title in its then existing condition without reduction of the Purchase Price or cash to close as provided in this Agreement. Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 3 of 9 4.3 Zoning and other Restrictions. The City shall take title subject to: zoning, restrictions, prohibitions and other requirements imposed by governmental authority, restrictions and matters appearing on the plat or otherwise common to the subdivision, public utility easements of record, taxes for the year of closing and subsequent years. 4.4. Survey. City, at City's expense, within the Feasibility Determination Period, may have the Property re-surveyed and certified by a registered Florida surveyor. If survey shows encroachment on the Properly or that improvements located on the Property encroach on set back lines, easements, lands of others or violate any restrictions, covenants or applicable government regulation, the same shall constitute a title defect. Metro shall address such title defect, if any, in the same manner as other title defects as set forth in paragraph 4.2 above. The parties agree that the City may substitute the re-surveyed legal description of the Property for the legal description contained on Exhibit "A" for closing purposes. Section 5. Closing Procedures. 5.1 Closing Date. The closing of this Agreement, and the transfer of title and possession of the Property, shall occur no later than thirty (30) days after the expiration of the Feasibility Determination Period, (hereinafter "Closing Date"),unless otherwise extended by the terms herein. Closing shall be held at Winter Springs City Hall or by mail. At City's discretion, City may extend the Closing up to thirty (30) days by providing three (3) days advance written notice to Metro 5.2 Conveyance. Metro shall convey to City marketable title to the Property by Statutory Warranty Deed; and transfer of licenses, permits, orders, authorizations and other governmental permissions by assignment to the extent transferable without any warranties or representations express or implied. (a) Documents For Closing: City shall furnish the applicable Closing Documents including, but not limited to, the Deed, Bill of Sale, Assignments, Ownership and Lien Affidavit, Certificate ofNon-Foreign Status, satisfaction and release of liens or mortgages, and Closing Statement. (b) Allocation of Expenses: City shall pay the premium for the owner's ALTA Owner's Policy 10-17-92 (Florida Modified) Title Insurance Policy, charges for related title services including but not limited to title or abstract charge, title examination, and settlement and closing fee, the cost of recording corrective instruments and Florida Documentary Stamps to be affixed to the Deed. City shall pay documentary stamps and intangible tax on any mortgage, mortgagee title insurance commitment with related fees, recording of mortgage and any financing statements. City shall pay the cost of recording the Deed. Each party shall pay their respective attorney's fees Right-of-~vay Acquisition Agreement City of Winter Springs /Metro Chwch of Christ Inc. Page 4 of 9 (c) Prorations: Real property taxes, special assessments and ad valorem taxes for the yeaz of closing and any other pro-ratable items shall be prorated as of the Closing Date with due allowance made for maximum allowable discount. All real property taxes, special assessments and ad valorem taxes for prior years shall be paid by Metro. In the event the current assessment and mileage are not available, all taxes for the year of Closing shall be based on the previous yeazs assessment and mileage. If any substantial difference (i.e., over $500.00 dollazs) occurs in the actual tax bills when issued for the year of Closing, the parties hereto agree to make adjustments based on such tax bills when they become available. (d) FIRPTA Acknowledgment: At Closing, the Metro shall execute and deliver to City two (2) original counterparts of the Certification of Non-Foreign Status in form reasonably satisfactory to City. In the event (a) Metro does not so execute and deliver to City such Certification ofNon-Foreign Status, or (b) such Certification of Non-Foreign Status if not fully and properly completed and executed as of the Closing Date, or (c) City is not entitled to rely upon such Certification, then, in any of such events, City shall withhold ten percent (10%) of the Purchase Price and pay the withheld amount to the Internal Revenue Service pursuant to Internal Revenue Code Section 1445. Any amount thus withheld by City shall be deemed to have been paid by City in cash at Closing as part of City's obligation to pay the Purchase Price hereunder. (e) Ownership and Lien Affidavit: Metro shall furnish to City at the time of closing an affidavit attesting to the absence, unless otherwise provided for herein, of any Notices to Owner or Claims of Lien of potential lienors known to Metro and further attesting to the unquestioned ownership by Metro of the Property and further attesting that there have been no improvements to the Property for 90 days immediately preceding the Closing Date for which payment has not been made in full, or for which payment has not been secured or provided for, all in form acceptable to Metro, City and Company. If Property has been improved or repaired within 90 days at the request of and authorization by Metro immediately preceding the Closing Date, Metro shall deliver releases or waivers of construction liens executed by all general contractors, subcontractors, suppliers, and materialmen in addition to Metro's lien affidavit setting forth the names of all such general contractors, subcontractors, suppliers and materialmen and further affirming that all chazges for improvements or repairs which could serve as a basis for a construction lien or a claim for damages have been paid or will be paid at closing of this Agreement. (f) Proceeds of Sale and Closing Procedure: Upon clearance of funds, the deed of conveyance and other closing documents (hereinafter "Closing Documents"), each duly executed, shall be delivered to the authorized agent of Company at closing. Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 5 of 9 Following examination by the agent of the public records of Seminole County, Florida, from the effective date of the Commitment up to Closing Date (hereinafter "Gap Period") and delivery to City of the Commitment marked in order to show compliance with all conditions of Closing and marked to insure the Gap Period all of which shall occur on or before closing, the net sales proceeds shall be promptly disbursed to Metro by Company or the authorized agent of Company at closing. (g) Further Acts, etc.: At the closing and up to thirty (30) days thereafter, Metro and City agree to execute and deliver such other and further instruments and to take such further actions as either of them or their counsel may reasonably request of the other in order to fully implement the terms of this Agreement and the closing thereof as long as said request is consistent with the respective obligations of the parties as set forth in this Agreement. This paragraph shall survive the closing. Section 6. Defaults. 6.1 Opportunity to Cure. No default as to any provision of this Agreement shall be claimed or charged by either party hereto against the other until notice thereof has been given to the defaulting party in writing, and such default remains uncured for a period of five (5) days after the defaulting party's receipt of such notice. Notwithstanding the above, the Closing Date shall not be changed, delayed, postponed or extended by this requirement for notice of default. 6.2 City Default. If City defaults on its obligations to purchase under this Agreement, without fault on the part of the Metro, Metro may terminate this Agreement. 6.3 Metro Default. If Metro defaults on its obligation to sell under this Agreement, without fault on the part of the City, City, at its option, may seek specific performance or alternatively, City may terminate this Agreement and Metro shall reimburse City for all actual costs and expenses incurred by City in preparing for Closing including, but not limited to, costs associated with the Feasibility Determination Period, survey costs, title inspection and commitment costs and appraisal fees, as its liquidated damages in full and final settlement of all claims City may have against Metro for breach of this Agreement. Section 7. Location of Existing Monument Sign. The parties acknowledge that Metro currently owns and maintains an existing monument sign for the Metro Church on the real property which is adjacent to the southern boundary line of Property. Further, upon conveyance of the Property to the City, the parties acknowledge that said monument sign will no longer comply with the fifteen (15) foot minimum set back requirement under section 20-470(2)b., Winter Springs Code, because the conveyance of the Property to the City Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ [nc. Page 6 of 9 will extend the southern boundary line of State Road 434 closer to the location of the monument sign. Consequently, in consideration of Metro agreeing to convey the Property to the City and in order to avoid placing a hardship on Metro by requiring the relocation of the existing monument sign, the City agrees to vary the aforementioned set back restriction pursuant to section 20-474, Winter Springs Code. Therefore, the existing monument sign shall be permitted to remain at its current location and within the fifteen (15) foot set back requirement. This paragraph shall survive closing. Section 7. Notices. Any notices or reports required by this Agreement shall be sent to the following: For the City: Mr. Kevin Smith City Manager City of Winter Springs 1126 E. S.R. 434 Winter Springs, FL 32708 With a copy to: Anthony A. Garganese City Attorney 111 N. Orange Avenue Suite 2000 Orlando, FL 32802 For Metror: Mr. Daniel Holland Senior Pastor Metro Church 1491 E State Road 434 # 102 Winter Springs, FL 32708 Section 8. Successors and Assigns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. Section 9. Applicable Law: Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any litigation pertaining to this Agreement shall be in Seminole County, Florida. Section 10. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors and assigns) and approved by the City Commission. Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 7 of 9 Section 11. Entire Agreement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Metro as to the subject matter hereof. Section 12. Severabilitv. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. Section 13. Effective Date. This Agreement shall become effective upon approval by the City of Winter Springs City Commission and execution of this Agreement by both parties. Section 14. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. Section 15. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Section 16. Attorney's Fees and Costs. In connection with any action arising from or in connection with this Agreement, the prevailing party, to the extent permitted by law, shall be entitled to an award of its costs and expenses, including reasonable attorneys' fees and disbursements, incurred or paid before and at trial or any other proceeding which may be instituted, at any tribunal level, and whether or not suit or any other proceeding is instituted. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. [EXECUTION PAGES FOLLOW) Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 8 of 9 ATTEST: AND A LORENZO-LUACES, City'Clerk WITNESSES: ~- ~-. Tint Name: R~ T~57L~~~ rint Name: d Z CITY OF WINTER SPRINGS, a Florida municipal corporation. F. BUSI'I, METRO CHURCH OF CHRIST, INC., A Florida Non Profit Corporation. Print Name• a ~ . ,e.~~ Right-of--way Acquisition Agreement City of Winter Springs /Metro Church of Christ Inc. Page 9 of 9 SCH~ ~! ICE ".=1 PURFGSE RIGHT OF 14+.a'f EXHIBIT ~ A e A strip of land being a portion of Lot 2, Tuskawilla Tract 15 Parcel 1 -C according to the Plat thereof, as recorded in Plat Book 56, Pages 29 thru 32, Public Records of Seminole County, Florida, being more particularly described as follows: COMb1ENCE at the Northeast corner of said Lot 2 fora POINT OF BEGINNING; thence S 00'10'54" W, along the East line of said Lot 2, a distance of 7.25 feet; thence N 89'49'07' W, parallel with the South right of way line of State Road X434, a distance of 142.29 feet; thence N 81'24'15" W, a distance of 49.56 feet, to a point on the South right of way line of State Road #434, according to Plat Book 56, Pages 29 thru 32; thence along sold South right of way line, S 89'49'07' E, a distance of 191.32 feet to the POINT OF BEGINNING. Containing 1210 square feet, or 0.03 acres, more or less. SURVEYORS NOTES Bearings shown hereon are based on the South right of way line of Stole Road 434 as described in Ptat Book 56, Pages 29-32. Public Records of Seminole County. Florida, being S 94'49'0'" E. - clot p e. I hereby certify that the "Sketch of Description" of the above described property is true and correct to the best of my knowledge and belief os recently drain under my direction and that it meets the l,linimum Technical Standards for Lond Surveying CH. 6161,-6 requirements. S. Not slid -without the Signature and Raised 5=_al at a Florida licensed sur:_or qnd mapper. DESCRIPTION FO R Professional Engineering Consultants, Inc. 07;!24 i 2007 \1KS .p.b NO.: ~c~le 4 7059 1 = 40 CH. 61617-6, rlanda ~dministralive Code ~uir.c Ihq' 7 _~i das,c.ic,ior, drawing tear the noiatiar, thou. THIS IS NOT A SURVEY. SHEET , ::~r SEE SHEET ~ GF _,- ET~~H F1gt :slid without sheet 2 CEP.T r10. L22108 x7059002 _ , i y ~~ SOUTHEASTERN SURVEYING & 1f.4PP1NC CORP. 6500 Ali American Boulevard Orlando, Florida 32810-4350 (407 92-8580 fax(407)292-0141 email: ~ fG;a?soutl~, temps rvFying. om ~~. I ARY B. ,RICK P.EGI3TERED LAlJD SURt'E5'GP. NG x245 SKETCH OF GESCF SOUTH RIGHT OF WA - - ~ U n I '-~ NN W o+ ~ Ur' °~ Qw Za c~ o_a ~~ ~~ ~o O Uo m 1- J ~m J F- F o_ a g~ J_ U U) T10i~~1 STATE ROAD N0. 434 RIGHT OF WAY' VARIES NORTH LINE OF LOT 2 (PLAT BOOK 56, PAGES 29- N 8124'15" W 49• S6' S 89'49'07" E 191.32' N 89'49'07" W 142. POINT OF BEGINNING NORTHEAST CORNER LOT 2 (PLAT BOOK 56, PAGES 29-32) 00'10'54" W 7.25' U I W i^y Q~ aN W ~ ^~ < a O U~ ~ddg _.J m J_ ~ 3a Q U N M _ I N LOT 2 ~, TUSCAWILLA TRACT 15 PARCEL 1-C a (PLAT BOOK 56, PAGES 29-32) i a NOTES NOT VALID WITHOUT THE SIGNATURE AND RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER. NOT VALID I4ITHOUT SHEET 1. THIS IS NOT A SURVEY Dronino Np. 4-C54G02 7 = 4 n Job No. 4'054 __,•=HIC SC~,L~ Cote r-r1e 2~- S~tEET 2 0~ ~ r: ^r: d ~ ;: ~. See Sheel t ,~•r De__riFti~n ~ ~ -- i •,m SOUTHEASTERN SURVEYING d: hlAPP1NC COP.P 6500 All American Boule~~ard Orlando. Florida 32610-4350 (400292-8560 ]ax(407)292-0141 Ceri No. LB-2106 email. info@southeaslernsun~e ing.com