HomeMy WebLinkAboutMetro Church of Christ. Inc. Right-of-Way Acquisition Agreement - 2009 02 16RIGHT-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
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City of Winter Springs /Metro Church of Christ Inc.
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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.
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(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.
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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:
~-
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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
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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.
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email. info@southeaslernsun~e ing.com