Item 8B v
AGENDA ITEM #8B
JULY 24, 2006
CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Hopkins Creek -Option to Buy Agreement
SUBMITTED BY: Rick Carper, P.E., Public Works Director
DATE: July 13, 2006
BACKGROUND: Staff has negotiated an Option to Buy agreement with Sunrise
Community Church for the two-acre parcel required for the Hopkins
Creek Regional Retention Facility.
This Option to Buy commits the city to purchase the two acres at
the appraised value of $430,000 per acre, following completion of
due diligence evaluations of environmental and title considerations
to ensure the land is suitable for the proposed use and has clear
title. Lampe, Roy & Associates, Inc. obtained this value through a
~. ~ land appraisal provided to the city on April 26, 2006. The Option to
Buy requires payment of a $5,000 to execute. This payment will
not be credited toward the purchase price for the land.
BUDGET: The FY2006 Stormwater Capital Account (470-0000-538-6300) has
$1,300,000 budgeted for construction of the Hopkins Creek Pond
(Project PW0309). The purchase price will be transferred to the
6400 (Land Acquisition) account.
RECOMMENDATION: Authorize the City Manager to execute the Option to Buy with
Sunrise Community Church for purchase of the land required for
the Hopkins Creek Regional Retention Facility.
ATTACHMENTS: 1. Option to Buy Agreement
2. Appraisal Report
REVIEWED BY CITY MANAGER:
July 24, 2006 Regular Meeting
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AGENDA ITEM #3B
JULY 24, 2006
OPTION AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT, is made and entered into as of this day of June, 2006 (the
"Effective Date" of this Agreement), by and between CITY OF ATLANTIC BEACH, a
corporate body politic (hereinafter referred to as the "Buyer"), and SUNRISE COMMUNITY
EVANGELICAL FREE CHURCH, INC., a Florida not for profit corporation (hereinafter
referred to as the "Seller").
WITNESSETH:
For and in consideration of the covenants, promises, undertakings and agreements
hereinafter set forth, the parties agree as follows:
~„ 1. Grant of tion. Seller hereby grants Buyer an exclusive option to purchase
(hereinafter referred to as the "Option"), on the terms and conditions hereinafter stated, that
certain parcel of real property located in Duval County and depicted on Exhibit "A" attached
~„ hereto as the "Option Parcel" (hereinafter referred to as the "Option Parcel"). That portion of
Parcel 2 depicted on Exhibit "A" that is not within the Option Parcel (hereinafter referred to as
the "Parcel 2 Remainder"), together Parcel 1 and Tract 1 as depicted on Exhibit "A" are owned
~., by the Seller and shall be hereinafter referred to as the "Retained Land".
2. Option Term and Option Price.
a. Subject to the terms and conditions set forth herein, Seller does hereby
grant to Buyer, for a period extending from the Effective Date of this Agreement until
~„ , 2006 ("Option Period"), an exclusive and irrevocable option ("Option") to
purchase the Land, subject to the terms and conditions of this Agreement. Buyer must exercise
the Option prior to the expiration of said Option Period, otherwise the Option shall become null
~, and void and of no further force and effect.
b. Upon execution of this Agreement, the Buyer shall pay to Seller the sum
„„ of $5,000.00 (hereinafter referred to as the "Option Payment") in consideration for the Option
granted herein. If the Option Term expires and the Buyer has not exercised its rights to purchase
the Option Parcel, then the Option Payment shall be retained by Seller, and, except for the
~„ Buyer's indemnity granted in Paragraph 3 below, this Agreement shall terminate and be of no
further force or effect. In the event the Buyer exercises the Option and purchases the Option
Parcel, the Option Payment shall not be credited toward the purchase price of the Option Parcel.
c. Purchase Price and Method of Payment. The total Purchase Price for the
Property shall be Eight Hundred Sixty Thousand and 00/100 Dollars ($860,000.00). The
~. Purchase Price shall be payable by Buyer to Seller, in cash, by wire transfer to the account
designated in Exhibit "B" attached hereto, payable at the consummation of the transaction
contemplated by this Agreement, as adjusted by any prorations (the "Closing").
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AGENDA ITEM #8B
JULY 24, 2006
3. Inspection Right.
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a. During the Option Term, Buyer shall have access to the Option Parcel and
to the area containing the proposed eastern pond and piping systems to conduct any inspections
or tests which Buyer deems necessary or desirable, including but not limited to soil tests and
environmental audits in order to determine if the Option Parcel can be developed for the
"Buyer's Intended Use". For purposes of this Agreement, the term "Buyer' s Intended Use"
,~ shall mean the development of the Option Parcel for a retention pond and drainage purposes.
The provisions of this paragraph to contrary notwithstanding, the buyer shall not enter upon the
Option Parcel or Retained Land after 4:00 p.m. on Wednesdays or at any time on Sundays. The
~, Buyer hereby agrees to indemnify and hold Seller harmless from any of Buyer's actions relative
to such activities to the extent permitted by Section 768.28, Florida Statutes. This indemnity
shall survive the Closing or any earlier termination or expiration of this Agreement. If Buyer
~„ ,exercises the Option to purchase the Option Parcel, the right of entry and investigation granted in
this Paragraph 3 shall continue unabated through the Closing.
~,,, 4. Survey. Buyer shall order a current staked boundary survey of the Property (the
"Survey") within _ (~ days after the Effective Date of this Agreement. The Survey shall be
prepared by a qualified, registered Florida land surveyor according to the standards promulgated
a,, in Section 61G17-6, Florida Administrative Code, and shall show thereon and include: (a) The
metes and bounds legal description of the Property; (b) a certificate by the surveyor certified to
Buyer, Seller, and the "Title Company" (as hereinafter defined) in such form as may be
~. reasonably acceptable to Buyer, dated as of a date not earlier than the Effective Date of this
Agreement (and subsequently updated to within ninety (90) days of the Closing, if required by
the Title Company in order to delete the general survey exception); (c) all physical matters on the
ground, which may affect the Property or title thereof; (d) whether the Property is located in a
"Special Flood Hazard Area" as determined by review of a stated, identified, Flood Hazard
Boundary Map or Flood Hazard Rate Map published by the Federal Insurance Administration of
the United States Department of Housing and Urban Development; (e) all easements, landscape
buffers, and building restriction lines of record affecting the Property with proper notation of the
book and page of each such easement as recorded in the Public Records; (f) the lines of the
public street or streets abutting the Property and the widths and centerlines of all said streets; (g)
all encroachments and the extent thereof, if any, in feet and inches on the Property or any portion
thereof; and (h) the number of square feet (to the nearest 1/100 of a square foot) contained within
~" the Property. If said Survey shows (1) any encroachments on the Property or that improvements,
if any, on the Property encroach on other lands, or (2) that the Property is not contiguous to a
publicly dedicated right-of--way, or (3) any other facts that affect the marketability of the
~" Property, then any such facts shall constitute a title defect for purposes of Paragraph 5 below.
The survey conducted for the Buyer in Au~>,ust 2003 may be used to satisfy the requirements of
this section.
5. Title Evidence. Buyer may purchase at the Closing a fee title insurance policy
(hereinafter referred to as the "Policy") insuring Buyer as the fee simple owner of the Property in
the full amount of the Purchase Price for the Property; such Policy to be purchased from and
issued by Chicago Title Insurance Company or Fidelity National Title Insurance Company
(hereinafter referred to as the "Title Company") through its agent Rogers Towers. Within
(~ days after Seller's receipt of the Buyer's Notice, a commitment for such title insurance
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AGENDA ITEM #8B
JULY 24, 2006
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policy shall be ordered by the Buyer (hereinafter referred to as the "Title Commitment"). The
~„ title commitment shall cover the Option Parcel, shall be dated later than the date of the Buyer's
Notice, shall be in the full amount of the Purchase Price, and shall have attached to it legible
copies of all instruments described in said commitment. The Title Commitment must disclose
the title to be good, marketable and insurable, subject only to the Permitted Exceptions, as
defined below in this Agreement, unless otherwise agreed to in writing by Buyer. If either the
Survey or the Title Commitment reveals any encroachments, overlaps, easements, restrictions,
covenants, conditions or other title defects other than the Permitted Exceptions (hereinafter
referred to as the "Title Objections"), then Buyer, within ten (10) days after receipt of the Survey
and Title Commitment (whichever is received last), may notify Seller of the Title Objections.
~. Seller shall have a period of ten (10) days after receipt of notice of the Title Objections to cure
any such Title Objections. Seller shall have no duty to~cure any Title Objections except that
Seller must cure liens or encumbrances evidencing monetary obligations of the Seller at or
.before the Closing. If any such Title Objections, other than those that will be cured or satisfied
at the Closing, remain uncleared by Seller at the end of ten (10) days after Seller receives notice
of the Title Objections, then the Seller shall give Buyer written notice of Seller's failure to cure
all the Title Objections and describe with specificity in that notice the Title Objections which
remain uncured and those Title Objections which will be satisfied at the Closing. The Buyer
may then do one of the following as Buyer's sole remedy:
a. Accept the uncured Title Objections and require the Seller to deliver the
title to the Property at the Closing in its existing condition with no reduction in the Purchase
Price; or
b. Terminate this Agreement, whereupon this Agreement shall be
automatically terminated and all parties released from further obligation hereunder.
Buyer's decision either to accept the uncured Title Objections or to terminate this
Agreement shall be made within ten (10) days after the Buyer receives written notice from Seller
of the uncured Title Objections. Written notice of Buyer's decision shall be then given by Buyer
to Seller. The failure of Buyer to give Seller notice of termination within said ten (10) day
period shall be deemed to constitute an acceptance by Bayer of the uncured Title Objections that
then remain.
As used in this Agreement, the term "Permitted Exceptions" shall consist only of the
matters shown in Exhibit "C" hereto attached. However, should the Survey provided pursuant to
Paragraph 4 and the Title Commitment delivered pursuant to this Paragraph 5 determine that any
of the items described in Exhibit "C" do not touch or concern the Property then such item or
items shall be deleted from Exhibit "C" and shall not be an exception to title in the deed
delivered by the Seller to the Buyer at the Closing.
6. Proration of Property Taxes and Assessments. All real estate taxes and
assessments which are or which may become a lien against the Option Parcel shall be satisfied of
record by Seller at Closing. In the event the Buyer acquires fee title to the Option Parcel
between January 1 and November 1, Seller shall, in accordance with Section 196.295, Florida
Statutes, place in escrow with the tax collector an amount equal to the current taxes prorated to
~* the Closing Date, based upon the current assessment and millage rates on the Option Parcel. In
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AGENDA ITEM #8B
JULY 24, 2006
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the event the Buyer acquires fee title to the Option Parcel on or after November 1, Seller shall
~„ pay to the tax collector an amount equal to the taxes that are determined to be legally due and
payable by the tax collector
7. Closing The closing costs shall be paid as follows:
a. Buyer shall pay for the owner's title insurance policy (in the full amount
~, of the Purchase Price) and all related search and abstract fees, if any; the cost of the boundary
Survey, documentary deed stamps; all recording fees, Buyer's attorneys' fees; and the cost for
recording any curative title documents.
b. Seller shall pay for Seller's attorneys' fees.
8. Closing. The Closing of the purchase and sale of the Property will be held either
by wire transfer and overnight delivery utilizing the agent of the Title Company, or at the offices
of Rogers Towers, P.A., in Jacksonville, Florida, and shall take place on or before thirty (30)
days after Buyer's Notice or after all title defects are cleared or accepted pursuant to Paragraph 6
hereof, whichever occurs last (herein referred to as the "Closing Date"). The Buyer may elect to
close prior to the Closing Date by delivering notice of such election to the Seller three (3)
business days prior to the date on which the Buyer wants to close. In such an event, the date
specified in the Buyer's notice shall be deemed the Closing Date. Such an election by Buyer to
close early shall be deemed a waiver of all conditions precedent to the Closing.
a. The Purchase Price shall be paid in full by Buyer to Seller in cash at the
Closing, subject to any prorations.
b. Upon receipt of the Purchase Price, Seller shall convey title in and to the
Option Parcel to Buyer, or Buyer's nominee or assignee, by special warranty deed free and clear
~, of all liens and encumbrances except (i) the Permitted Exceptions; and (ii) such other exceptions
to title appearing in the Title Commitment which Buyer has approved or accepted as title
exceptions under the terms hereof.
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c. At the Closing, the Seller shall furnish to Buyer (1) a seller's affidavit, in
form acceptable to the Title Company, sufficient to provide "GAP" coverage and to remove
~„ standard printed exceptions to title in the Policy regarding (i) unrecorded matters (except general
real estate taxes not yet due and payable); (ii) parties in possession; and (iii) mechanic's liens;
and (2) a nonforeign affidavit as defined by Internal Revenue Code Section 1445 in form
reasonably acceptable to Buyer dealing with the subject matter of Section 1445 of the Internal
Revenue Code. The parties shall also execute such other closing documents as may be
reasonably necessary to consummate the transaction contemplated herein.
9. Possession. Possession of the Property will be delivered to Buyer at the Closing.
10. Default.
a. If Buyer defaults in its obligation to purchase of the Option Parcel in
accordance with the terms of this Agreement or otherwise defaults in its obligations hereunder
that are to be performed at or before the Closing, Seller's sole and only remedy against Buyer for
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AGENDA ITEM #8B
JULY 24, 2006
Buyer's default shall be to retain the Option Payment paid by Buyer as liquidated and agreed
~„ upon damages. It is agreed by the parties that such amount is a fair and reasonable measure of
the damages to be suffered by Seller in the event of such default and that the exact amount
thereof is incapable of ascertainment. If the Buyer defaults in any of its obligations hereunder
~,. that are to be performed after Closing, then the Seller shall have all remedies available at law or
in equity.
~,, b. In the event Seller breaches its covenant to convey the Option Parcel to
Buyer or otherwise fails to perform its obligations under this Agreement which are to be
performed at or prior to the Closing, in accordance with its terms, for any reason except for
Buyer's default, Buyer shall be entitled to one of the following as Buyer's sole remedy: (i)
terminate this Agreement, and receive a prompt and complete return of the Option Payment, or
(ii) seek and obtain specific performance of this Agreement, together with all costs and
~. ,attorney's fees.
11. Development Issues. In the event the Buyer exercises its Option and closes on the
~,. purchase of the Option Parcel, the following terms and conditions shall be applicable to the
development of the Option Parcel and shall survive the Closing:
a. Prior to application for building permits and commencement of any
construction of any improvements by the Buyer on the Option Parcel or the Retained Property
including, without limitation the improvements and landscaping described below in this
paragraph 11, Seller must first review and approve all plans, specifications and site plans
therefore, which approval shall not be unreasonably withheld or delayed. Buyer acknowledges
that the aesthetic appearance of the Option Parcel and the Retained Property is important to the
Seller and will be taken into consideration by the Seller in its architectural review.
b. Buyer agrees to construct and maintain a stormwater retention pond on the
Option Parcel (hereinafter referred to as the "South Pond") that will provide stormwater retention
for the Retained Land and other real property. It is agreed that the Retained Land shall be
permitted to drain into both the South and East Ponds.
c. Buyer also agrees to install and maintain decorative fencing around the
South Pond around the north, west & east sides of the South Pond. Furthermore, in order to
~. provide a landscape buffer between (i) the Retained Land and the Option Parcel and (ii) the
commercial development to the south of the Retained Land and Option Parcel, Buyer agrees to
install and maintain additional landscaping along the south property line of the Option Parcel
pursuant to a landscape plan acceptable to Seller, subject to clearance requirements for the
existing sanitary sewer line and proposed storm water outlet pipe. Such landscape plan may
include but not be limited to oak trees and fast growing pine trees. All plant material reflected in
+~ the landscape plan shall be permitted by, and comply with, all applicable governmental laws and
regulations. Buyer agrees to replace any plant material that dies, becomes diseased or otherwise
fails to thrive during the twelve (12) month period following installation.
d. Upon completion of the South Pond, Buyer agrees to purchase and install
lighting on the Retained land for purpose of lighting the southern edge of parking. Cost for
~* maintenance and operation of this lighting will be the Seller's responsibility.
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AGENDA ITEM #8B
JULY 24, 2006
e. Buyer agrees that upon completion of the South Pond and the erection of
~„ the fencing around the same, the Seller be permitted to extend its landscape buffer into the
Option Parcel to allow moving proposed parking to the southern limit of the Retained Land as
long as a minimum 10 foot width maintenance berm is maintained.
f. Buyer agrees to construct a retention pond on the Retained Property
(hereinafter referred to as the "East Pond"). Seller will grant the Buyer a temporary construction
,,,,s easement on the Retained Land for the purpose of constructing the East Pond. In connection
with the construction of the East Pond, Buyer will remove the drainage ditch located on Tract 1
depicted on Exhibit "A". Buyer agrees to replace any trees that are destroyed during the
~, construction of the South Pond and East Pond with tree replacements meeting the Protected Tree
Replacement criteria of City Code, not saplings. Trees removed for construction of the
stormwater ponds are excluded from this requirement.
g. Buyer agrees install and maintain decorative "spraying" fountains in both
the South and East Ponds. Seller agrees to pay for the electric service for the decorative
"spraying" fountain on the East Pond.
h. Buyer agrees to construct and pave entrances for ingress and egress to the
Retained Property on both sides of the East Pond. The entrance constructed on the south side of
the East Pond shall be constructed and paved to the South Pond's boundary line to provide
service access to the South Pond.
i. Buyer agrees to utilize the Option Parcel exclusively as a retention pond,
except that should the City receive grant funding from an entity requiring an education element,
the City may install a kiosk or other facility needed to satisfy the educational criteria of the
grant.. Buyer will not use the Option Parcel for any other purpose, including but not limited to,
storage of equipment, staging area for Buyer's materials, and removal of trees. However, the
~, Buyer may keep construction equipment on the Option Parcel while it is constructing the South
Pond.
j. Buyer agrees to maintain the current state of the Property prior to the
construction of the South and East Ponds.
~„ k. Buyer represents and warrants that the construction and maintenance of
the South and East Ponds will be of sufficient size to provide sufficient stormwater retention for
the Retained Property so long as the Retain Property is developed in compliance with all
,~„ applicable governmental laws, rules and regulations. (i.e., up to 50% impervious surface area on
the Retained Land). Seller will be allowed to route stormwater from future on-site development
into either south or east pond as needed for collection system efficiency
1. Seller agrees to provide, at no additional cost to the Buyer, a perpetual
access /utility easement for maintenance of storm sewer piping and components installed on
Seller's property.
m. As provided above the plans and specifications for all improvements and
~,,, landscaping described in the paragraph 11 must be reviewed and approved by the Seller, which
approval shall not be unreasonably withheld. Seller agrees that it shall either approve or
JAX\1016973 2 _6_
AGENDA ITEM #8B
JULY 24, 2006
disapprove all plans, specifications and site plans proposed by the Buyer within ten (10) business
days of Seller's receipt of same. Any disapproval by the Seller shall be done in writing and shall
~. be accompanied by specific objections. Failure of the Seller to disapprove any plans,
specifications or site plan within ten (10) business days after Seller's receipt of same shall be
~„ deemed an approval of same by the Seller
12. .Representations and Disclosures by Seller. Seller hereby represents and warrants
to Buyer, which representations and warranties shall remain true through the Closing Date:
a. There are no violations of any federal, state or local law, ordinance, rule,
regulation, statute or governmental code or ordinance affecting the Option Parcel of which the
Seller or any of its agents have knowledge.
b. There is no known litigation or administrative proceeding, including any
~. condemnation or eminent domain proceeding, pending, or to the best of Seller's knowledge,
threatened, which affects the Option Parcel or any portion thereof.
~' c. The Seller is a not for profit corporation duly organized and validly
existing and in good standing under the laws of the State of Florida; the individual executing this
Agreement on behalf of the Seller corporation is the duly elected, qualified and acting officer as
indicated; and the execution of this Agreement by said individual is authorized by and binding
on Seller.
d. There are no leases, rights of first refusal, options or other contracts
affecting the Option Parcel which are not referred to in this Agreement and, during the term of
this Agreement, Seller shall not enter into any lease, right of first refusal, option or other contract
affecting the Option Parcel without Buyer's prior written consent.
e. To the best of Seller's actual knowledge and except as may be otherwise
~" disclosed in any environmental report(s) delivered to, or made available to, Buyer pursuant to
Paragraph 3 hereof, no hazardous or toxic materials are present in, on or under the Option Parcel
and the Option Parcel has never been used by Seller or any entity for tue unlawful storage,
handling, manufacture, transportation, or use of hazardous materials. As used herein, "hazardous
or toxic materials" shall include any and all materials or substances which are regulated by, or
the presence of which could give rise to liability for an owner of Option Parcel for removal or
cleanup, under any federal, state, or local law, statute, rule, regulation or ordinance.
Seller agrees to notify the Buyer promptly if any representation or warranty made in this
Paragraph 12 becomes untrue prior to the Closing.
13. AS-IS SALE. BUYER ACKNOWLEDGES THAT, EXCEPT FOR SELLER'S
EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
AGREEMENT AND/OR IN THE DOCUMENTS TO BE EXECUTED AND DELIVERED BY
SELLER AT THE CLOSING, BUYER IS FULLY RELYING ON BUYER'S (OR BUYER'S
REPRESENTATIVES') INSPECTIONS, EXAMINATIONS AND EVALUATIONS OF THE
OPTION PARCEL AND NOT UPON ANY STATEMENTS (ORAL OR WRITTEN) WHICH
.. MAY HAVE BEEN MADE OR MAY BE MADE (OR PURPORTEDLY MADE) BY SELLER
OR ANY OF ITS REPRESENTATIVES, AGENTS OR ATTORNEYS. WITHOUT LIMITING
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AGENDA ITEM #8B
JULY 24, 2006
THE EFFECTIVENESS OF SELLER'S EXPRESS COVENANTS, REPRESENTATIONS
~, AND WARRANTIES SET FORTH IN THIS AGREEMENT AND/OR IN THE DOCUMENTS
TO BE EXECUTED AND DELIVERED BY SELLER AT THE CLOSING, BUYER
ACKNOWLEDGES THAT BUYER HAS (OR BUYER'S REPRESENTATIVES HAVE), OR
PRIOR TO THE CLOSING DATE WILL HAVE, THOROUGHLY INSPECTED AND
EXAMINED THE OPTION PARCEL TO THE EXTENT DEEMED NECESSARY BY
BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE CONDITION OF THE
~,, OPTION PARCEL AND ALL OTHER ASPECTS OF THE OPTION PARCEL (INCLUDING,
BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE OPTION
PARCEL), AND BUYER ACKNOWLEDGES THAT, EXCEPT FOR SELLER'S EXPRESS
COVENANTS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
AGREEMENT AND/OR IN THE DOCUMENTS TO BE EXECUTED AND DELIVERED BY
SELLER AT THE CLOSING, BUYER IS RELYING SOLELY UPON ITS OWN (OR ITS
REPRESENTATIVES') INSPECTION, EXAMINATION AND EVALUATION OF THE
OPTION PARCEL AND IS QUALIFIED TO MAKE SUCH INSPECTION, EXAMINATION
AND EVALUATION. AS A MATERIAL PART OF THE CONSIDERATION OF THIS
~* AGREEMENT AND THE PURCHASE OF THE OPTION PARCEL, BUYER HEREBY
AGREES TO ACCEPT THE OPTION PARCEL ON THE CLOSING DATE IN ITS "AS IS,
WHERE IS" CONDITION, WITH ALL FAULTS AND, EXCEPT AS OTHERWISE
~"" EXPRESSLY PROVIDED IN THIS AGREEMENT AND/OR IN THE DOCUMENTS TO BE
EXECUTED AND DELIVERED BY SELLER AT THE CLOSING, WITHOUT
REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR
~' ARISING BY OPERATION OF LAW. WITHOUT IN ANY WAY LIMITING THE
GENERALITY OF THE FOREGOING, THE PARTIES AGREE THAT, EXCEPT FOR
SELLER'S EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES SET
'"~ FORTH IN THIS AGREEMENT AND/OR IN THE DOCUMENTS TO BE EXECUTED AND
DELIVERED BY SELLER AT THE CLOSING, THE SALE OF THE OPTION PARCEL IS
WITHOUT ANY WARRANTY, AND THAT SELLER HAS MADE NO, AND EXPRESSLY
'~' AND SPECIFICALLY DISCLAIMS ANY AND ALL, REPRESENTATIONS, GUARANTIES
OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW OR
RELATING TO THE OPTION PARCEL, INCLUDING, WITHOUT LIMITATION, OF OR
~" RELATING TO: (A) THE O`JVNERJHIP, USE, INCOME, POTENTIAL, EXPENSES,
OPERATION, CHARACTERISTICS OR CONDITION OF THE OPTION PARCEL OR ANY
PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
'~ SUITABILITY, HABITABILITY, MERCHANTABILITY, DESIGN OR FITNESS FOR ANY
SPECIFIC PURPOSE OR A PARTICULAR PURPOSE; (B) THE NATURE, MANNER, OR
CONDITION (PHYSICAL, STRUCTURAL OR OTHERWISE) OF THE OPTION PARCEL,
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OR THE SURFACE OR SUBSURFACE THEREOF, WHETHER OR NOT OBVIOUS,
VISIBLE OR APPARENT; (C) THE ENVIRONMENTAL CONDITION OF THE OPTION
PARCEL AND THE PRESENCE OR ABSENCE OF OR CONTAMINATION BY
HAZARDOUS MATERIALS, OR THE COMPLIANCE OF THE OPTION PARCEL WITH
ALL REGULATIONS OR LAWS PERTAINING TO HEALTH OR THE ENVIRONMENT,
~, INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL LAWS; AND (D) THE SOIL
CONDITIONS, DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER
CONDITIONS EXISTING IN, ON OR UNDER THE OPTION PARCEL. THE PROVISIONS
~, OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING OR EARLIER TERMINATION
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~. AGENDA ITEM #8B
OF THIS AGREEMENT. JULY 24, 2006
~'" Furthermore, except for any claim the Buyer may have as a result of the breach by the
Seller of any express representation or warranty of Seller set forth herein, Buyer does hereby
release and forever discharge Seller, its directors, shareholders, officers, employees, legal
~" representatives, agents and assigns, from any and all actions, causes of action, claims and
demands for, upon or by reason of any damage, loss or injury which heretofore have been or
which hereafter may be sustained by Buyer resulting from or arising out of the presence of
any hazardous materials or other environmental contamination on or in the vicinity of the
Option Parcel, including the soil and/or groundwater (hereinafter referred to as the "Claims").
~„ BUYER EXPRESSLY WAIVES, WITHOUT LIMITATION, ANY CLAIMS FOR
CONTRIBUTION UNDER THE FEDERAL COMPREI~NSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, LTI~ILESS
~,,, RESULTING FROM THE ACTS OR OMISSIONS OF SELLER, DURING ITS PERIOD OF
OWNERSHIP OF THE OPTION PARCEL (AND NOT CAUSED BY THE BUYER
FOLLOWING THE CLOSING). This release applies to all such Claims whether the actions
~,. causing the presence of hazardous materials on or in the vicinity of the Option Parcel occurred
- before or after the Closing. This release extends and applies to, and also covers and includes, all
statutory or common law Claims the Buyer may have against the Seller. The provisions. of any
~. State, Federal, or Local law or statute providing in substance that releases shall not extend to
claims, demands, injuries or damages which are unknown or unsuspected to exist at the time, to
the person executing such release, are hereby expressly waived. .
14. Real Estate Commission.
~, a. Seller represents and warrants to Buyer that there are no real estate
brokers, salesmen, finders or any other persons or entities involved in this transaction that may
claim a commission, finder's fee or other fee. Seller agrees to indemnify and hold Buyer
~.. harmless from any and all liability, loss, damages and expenses, including reasonable attorney's
fees, that Buyer may incur by reason of, resulting from or arising out of any claim of any broker,
salesman, finder or other person or entity claiming a commission, finder's fee or other fee by,
through or under Seller. Further, in the event any broker, salesman, finder or other person or
entity claiming a real estate commission fee in connection with this transaction by, through or
under Seller files a suit naming Buyer as a defendant, Seller agrees, at its costs and expense, to
defend any such suit ar action naming Buyer a a.defertdant. --_
b. Buyer represents and warrants to Seller that there are no real estate
„~ brokers, salesmen, finders or any other persons or entities involved in this transaction that may
have a claim for a commission, finder's fee or other fee as a result of having dealt with the
Buyer. Buyer agrees to indemnify and hold Seller harmless from any and alI liability, loss,
damages and expenses, including attorneys' reasonable fees, that Seller may incur by reason of,
resulting from or arising out of any claim of a real estate broker, salesman, finder or other person
or entity, claiming a real estate commission, finder's fee or other fee, by, through or under
~* Buyer, except the Broker. Furthermore, in the event any other broker, salesman, finder, or other
person or entity, claiming a real estate commission or fee in connection with this transaction by,
through or under Buyer files a suit naming Seller as a defendant, Buyer agrees, at its cost and
~* expense to defend any such suitor action naming Selier as a defendant.
JAX11016973_2 _(~_
AGENDA ITEM #SB
JULY 24, 2006
15. Condemnation. If at any time prior to the Closing, the Option Parcel or any
portion thereof is taken by eminent domain or if any preliminary steps in any taking by eminent
domain of the Option Parcel, or any portion thereof occurs and if Buyer, in its reasonable
judgment, determines that such actual or threatened taking would render the Option Parcel
,,, unsuitable to Buyer's intended use of the Option Parcel, the Buyer may, at its option, either at the
Closing or on the 10th business day after receipt of notice or knowledge of such actual or
threatened taking (whichever first occurs), rescind this Agreement and upon such rescission all
~, rights and liabilities arising hereunder shall terminate. Seller shall notify Buyer in writing of any
such taking and all steps preliminary thereto as soon as the Seller becomes aware of the same. If
Buyer does not elect to so rescind this Agreement, the same shall remain in full force and effect
~, and Seller shall in such event turn over or credit to Buyer at the Closing all monies received by
Seller by reason of such taking (less Seller's cost and fees incurred in obtaining the award) and
Seller shall assign to Buyer all its right, title and interest in and to any awards that may be made
;~ ,for such taking and any additional money that may be payable thereunder.
16. Assignment; Successors and Assigns. The covenants herein contained shall bind
and the benefits and advantages shall inure to the respective successors and assigns of the parties
hereto. Buyer may not assign its interest in this Agreement without Seller's consent, which
consent Seller may withhold in its sole and absolute discretion.
17. Applicable Law and Venue. This Agreement is to be construed and enforced
according to the laws of the State of Florida. Seller and Buyer agree that the proper venue with
~. respect to any litigation in connection with this Agreement shall be Duval County, Florida.
18. Notices. All notices herein required shall be in writing. Whenever any notice,
~„ demand or request is required or permitted hereunder, such notice, demand or request shall be
hand-delivered personally, sent by express mail or courier service, or sent by facsimile
transmission (with originals sent by regular mail) to the addresses and facsimile .numbers set
~,. forth below:
As to Seller: Sunrise Community Evangelical Free Church, Inc.
~,,, _ 288 Aquatic Drive
Atlantic Beach, FL 32233
Attn:
~.. Fax: (904)
Phone: (904)
with a copy to: Rogers Towers, P.A.
1301 Riverplace Boulevard, Suite 1500
Jacksonville, FL 32207
Attn: Anthony A. Anderson, Esquire
Fax: (904) 396-0663
Phone: (904) 346-5504
e-mail: aanderson(a~rtlaw.com
JAX~ 1016973_2 _ 1 ~_
~.
AGENDA ITEM #8B
JULY 24, 2006
As to Buyer: City of Atlantic Beach
800 Seminole Road
Atlantic Beach, Florida 32233
Attn:
Fax: (904) 247-5805
Phone: (904) 247-5800
As to Escrow Agent: Rogers Towers, P.A.
1301 Riverplace Blvd., Suite 1500
Jacksonville, Florida 32207
Attn: Anthony A. Anderson, Esquire
Phone: (904) 346-5504
Fax: (904) 396-0663
~,,, Any notice or demand to be given hereunder shall be deemed sufficiently given for all purposes
hereunder (1) at the time such notices or demands are hand-delivered or sent by facsimile
transmission, or (2) one day after depositing any such notice or demand with any express mail or
~,, other overnight courier service. Any party hereto may change its address by notice in writing to
the other parties in the manner herein provided.
~„ 19. Time of Essence. TIME IS OF THE ESSENCE of this Agreement. If the last day
for the performance of any obligation set forth herein should fall on a day other than a "Business
Day" (as defined below), then the time period for performing such obligation shall be extended
~„ until the next Business Day. However, such extension shall not operate to extend any other
deadlines or time periods established hereunder. For purposes of this Agreement, the term
"Business Day" shall mean any day other than a Saturday, Sunday or any day on which
commercial banks are authorized to close under the laws of the State of Florida.
20. No Recording of Contract. Seller and Buyer each agree not to place this
Agreement of record.
21. Survival of Representations and Warranties. All representations, warranties and
~, covenants contained herein or otherwise made in writing in connection herewith shall survive the
Closing and the execution and delivery of the warranty deed.
22. Judicial Interpretation. Should any of the provisions of this Agreement require
judicial interpretation, the court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against one party by reason of the rule of
~,,, construction that a document is to be construed more strictly against the party who itself or
through its agents prepared the same, it being agreed that the agents of all parties have
participated in the preparation hereof.
23. Entire Agreement. This Agreement contains all of the agreements,
representations and warranties of the parties hereto and supersedes all other discussions,
understandings or agreements in respect to the subject matter hereof. All prior discussions,
JAX~1016973_2 -11-
~.
AGENDA ITEM #3B
JULY 24, 2006
~.
understandings and agreements are merged into this Agreement, which alone fully and
completely expresses the agreements and understandings of the parties hereto. This Agreement
~. may be amended, superseded, extended or modified only by an instrument in writing referring
hereto signed by all parties.
~, 24. No Benefit to Other Parties. Except as otherwise provided herein, none of the
provisions hereof shall inure to the benefit of any party other than the parties hereto and their
respective successors and permitted assigns, or be deemed to create any rights, benefits or
privileges in favor of any other party except the parties hereto.
25. No Agency, Partnership or Joint Venture. Nothing herein shall be construed to
establish an agency relationship between Seller and Buyer for any purpose.
26. Headings. The captions and headings contained in this Agreement are for
reference purposes only and shall not in any way effect the meaning or interpretation hereof.
27. Waiver. No waiver of any provision of this Agreement shall be effective unless
'~' such waiver is contained in a document and signed by the party against whom such waiver is
being enforced and no party shall be estopped to enforce this Agreement. The waiver by one
party of the performance of any covenant or condition herein shall not invalidate this Agreement,
nor shall it be considered to be a waiver by such party of any other covenant or condition herein.
The waiver by either or both parties of the time for performing any act shall not constitute a
waiver at the time for performing any other act or an identical act required to be performed at a
later time. The exercise of any remedy provided by law in the provisions of this Agreement shall
not exclude other remedies unless they are expressly excluded.
'~ 28. Attorneys' Fees. In connection with any litigation brought to enforce or interrupt
this Agreement, before or after the Closing, the prevailing party shall be entitled to recover all
costs therein incurred including reasonable attorneys' fees at trial and on appeal.
29. Waiver of Jury Trial. BUYER AND SELLER, JOINTLY AND SEVERALLY,
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
'~ EITHER MAY HAVE TO A '1 RIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
~. CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS, WHETHER VERBAL OR WRITTEN, OR ACTIONS OF EITHER PARTY.
30. Counterparts. This Agreement may be executed by the parties hereto individually
or in combination, in one or more counterparts, each of which shall be an original and all of
which will constitute one and the same Agreement.
31. Effective Date. The Effective Date of this Agreement shall be the upon which the
Agreement, fully executed by Seller and Buyer has been received by Buyer.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day set
forth below.
JAX\1016973_2 -12-
AGENDA ITEM #8B
JULY 24, 2006
Signed, sealed and delivered "SELLER"
in the presence of:
SUNRISE COMMUNITY EVANGELICAL
FREE CHURCH, INC., a Florida corporation
Print Name: BY~
Name:
Its:
Print Name:
. DATE;
"BUYER"
CITY OF ATLANTIC BEACH, a Florida
corporation
Print Name: By.
Name:
Its:
Print Name:
DATE:
J.4X~1016973_2 -13 -
~.
~.
Fxhihit ~~A"
AGENDA ITEM #SB
JULY 24, 2006
JAX~1016973_2 _ 14,_
Exhibit "B"
Wire Instructions
AGENDA ITEM #8B
JULY 24, 2006
JAX~1016973_2 _ j 5_
Exhibit "C"
Permitted Exceptions
AGENDA ITEM #SB
JULY 24, 2006
1. Covenants and Restrictions as recorded in Deed Book 1036, page 99; and in Deed
Book 1082, page 222, of the public records of Duval County, Florida, which have not been
violated to date, and a future violation thereof will not result in a forfeiture or reversion of title.
2. Grant of Easement recorded in Official Records Volume 5626, page 347, of the
public records of Duval County, Florida, which has not been violated to date, and a future
violation thereof will not result in a forfeiture or reversion of title.
3. Agreement as recorded in Official Records Volume 5626, page 349, of the public
records of Duval County, Florida, which has not been violated to date, and a future violation
~. thereof will not result in a forfeiture or reversion of title.
4. Dedications, easements, reservations and restrictions as shown on the Plat of
Aquatic Gardens, recorded in Plat Book 38, pages 71 and 71A, Current Public Records of Duval
County, Florida.
5. Recorded subdivision plat shows Easement(s): 15 foot drainage, utility, and sewer
easement along the Northerly lot line.
'~"' 6. Restrictions, reservations, covenants and conditions pursuant to that certain
Declaration recorded in Official Records Book 5993, page 2030, Current Public Records of
Duval County, Florida.
7. Easement granted and recorded in Official Records Book 6327, page 342, Current
Public Records of Duval County, Florida. (Released in Official Records Book 9268, Page 2246)
8. Easement granted and recorded in Official Records Book 5907, page 197, Current
Public Records of Duval County, Florida. (Released in Official Records Book 9268, Page 2247)
9. Declaration of Easements and Maintenance and Use Agreement recorded in
Official Records Book 5980, page 617, Current Public Records of Duval County. (Released in
"° Official Records Book 9268, Page 2248)
10. Easement granted and recorded in Official Records Book 6393, page 954, Current
Public Records of Duval County, Florida. (Released in Official Records Book 9268, Page 2245)
11. Drainage Easement as recorded in Official Records Book 5884, page 1242, as re-
recorded in Official Records Book 5891, page 346, Duval County records.
12. Utility Easement as recorded in Official Records Book 5884, page 1250, Duval
County records.
13. Easement reserved over the Westerly 30 feet of caption property as contained in
instrument recorded in Official Records Book 5604, page 1689, Duval County records.
~ JA7{~1016973_2 -16-
'°~" AGENDA ITEM #8B
JULY 24, 2006
~. LAN~PE, AO~ ~ ASSOCIATES, INC.
APPRAISERS • CONSULTANTS- ~"'""""'^"~~
~, -4440: MERRIMAC AVENUE
JACKSONVILLE, FLORlBA322i0
'(904) 388-7020
FAX (904) E88-9298
~» Apri127, 2006
1v1r. Ricky L. Carper, P. E.
~" Director of Public Works/City Engineers
City of Atlantic Beach.
1200 Sandpiper Lane
-Atlantic Beach, Florida 32233
Re: Appraisal of Potential Hopkins :Creek
~" Retention 'Pond, A Two Acre Tract
Located on the West Side' of Aquatic
Drive, Atlantic Beach, Duval County,
- Florida; Our File No. 3.870.
Dear'1VIr. Carper:
~" This is in respanse to your request for an appraisal of the above referenced property. The
subject of this .appraisal analysis is Sunrise Community Evangelical Free Church, Inc.,
'.located at 298 Aquatic Drive, Atlantic Beach, Duval County,'Florida. A detailed discussion
of the subject will be found in later sections of this appraisal. report.
The fallowing narrative reporE contains data gathered during our investigation of tLe:subject
property. This is to certify that we have no interest, contingent or otherwise, in this propel y
..and the fee for formulating our opinion of value is, in no way, contingent upon our,value
~. conclusions or final value estimates. Furthermore, the value conclusions and f nai value
estimates .reflected herein are not based upon minimum valuations, specific valuations or
directed outcomes.
Value estimates are subject to the definition of Market Value as set forth in this report, as
well as the General Assumptions and Limiting Conditions contained in the Addendum of this'
~" report. To the best of our knowledge, this report complies with the Uniform Standards of
Professional Appraisal Practice (U'SPAP) as adopted by the Appraisal Standards-Board of the
,~„ Appraisal'Foundation, the State of Florida and the Appraisal Institute.
After carefully studying and analyzing the data available as of the Date of Value, it is our
~• opinion, the Market Value of the subject as of Date. of Value, was Apri126, 2006.
„~, LANIPE. ROY d`? ASSOCIATES, TNC
AGENDA ITEM #8B
JULY 24, 2006
APPRAISERS -CONSULTANTS
Mr. Ricky'L. Carper, P. E.
~"' .April 27,.2006
Page Two.
~. Land $860,000
.Improvements $0
.Total $860,000
"~' Damages, Incurable $0
Net Cost to Cure
Total Compensation $860,OOQ
Mr. Carper, we trust the enclosed information is of sufficient detail so as to clearly explain
~„ and document our estimated value ..conclusions. However, if any additional.. information
pertaining to thi analysis is needed, or if we might be of any further assistance to you. in this
matter, please do nothesitate o call on us.
~.
Respectfully Submitted,
~.
LA,:IV~PE ROY & ASSOCIATES, Ii~C.
(~
'~
Michael C. Roy, 'MAI, SRA
State Certified General Real
Estate Appraiser No. RZ 140
/hlb
~.
~.
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