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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 w. ~. 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"). ~. AGENDA ITEM #8B JULY 24, 2006 3. Inspection Right. ~. 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 JAX~1016973_2 _2_ AGENDA ITEM #8B JULY 24, 2006 aw 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 JAX~1016973 2 _3_ ~a ~,. AGENDA ITEM #8B JULY 24, 2006 ~. 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. ~. 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 w JAJ{~1016973_2 _4_ 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. aw JA}C~1016973_2 _5_ ~. 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 JAX~1016973 2 - -7- ~.. ~. 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, ~. 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 JAX~1016973 2 _8_ ~. 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 ~. ~. =,