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HomeMy WebLinkAboutR-94-21Special city Council Meeting April 20, 1994 Page Three ROLL CALL: Mrs. Damp - aye Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye Mrs. Corum - aye MOTION CARRIED 5-0 At the request of the City Manager the City Attorney reported that the issue of the "gap" of land located within the subject property was unable to be resolved, initiating a renegotiation of the purchase price downward, however, that staff had been informed that a quit claim deed for the "gap" had been filed April 13, 1994 by Fred Mensing, a deed about which there are numerous questions. He recommended that the purchase contract be canceled at this time to give the bank time to review the matter and perhaps the City can look at the land at a later date. The City Manager recommended that City Council withdraw from any further negotiation with the bank and inform them that the City can reconsider this when and if the cloud on title has been resolved. MOTION by Oberbeck/Damp I would move to discontinue negotiations with the bank with regard to the Julian property and send formal notification of cancellation of contracts to the bank. City Council discussion followed. ROLL CALL: Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye Mrs. Corum - aye Mrs. Damp - aye MOTION CARRIED 5-0 Being no further business, Mayor Firtion adjourned the Special Meeting at 7:24 p.m. RESOLUTION NO. R-94-21 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO SIGN, ON BEHALF OF THE CITYI AN AGREEMENT FOR PURCHASE OF REAL PROPERTY BETWEEN THE CITY OF SEBASTIAN, A FLORIDA MUNICIPAL CORPORATION, AND O.R.E.O, INC.~ AS SET FORTH IN EXHIBIT "A" OF THIS RESOLUTIONI PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS iN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Sebastian, Indian River County, Florida, has determined that it is in the best interest of the citizens of Sebastian to purchase real property located in the north central section of the City for various municipal purposes. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that: Section 1. AGREEMENT. The Mayor and City Clerk of the City of Sebastian, Indian River County, Florida, are hereby authorized to sign, on behalf of the City, an Agreement for purchase of real property between the city of Sebastian, a Florida municipal corporation, and O.R.E.O., Inc., a copy of the Agreement having been attached to this Resolution as Exhibit "A" and by this reference incorporated herein. Section 2. CONFLICT. Ail resolutions or parts of resolutions in conflict herewith are hereby repealed. Section 3. SEVERABILITY. In the event a court of competent jurisdiction shall hold or determine that any part of this Resolution is invalid or unconstitutional, the remainder of the Resolution shall not be affected and it shall be presumed that the city council of the City of Sebastian did not intend to enact such invalid or unconstitutional provision. It shall further be assumed that the City Council would have enacted the remainder of this Resolution without such invalid and unconstitutional provision, thereby causing said remainder to remain in full force and effect. Section 4. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. The foregoing Resolution was moved for adoption by Councilmember ~~ The motion was seconded by Councilmember ~~4~ ........... and, upon being put into a vote, the vote was as follows: Mayor Arthur L. Firtion Vice-Mayor Carolyn Corum Councilmember Norma J. Damp Councilmember Robert Freeland Councilmember Frank Oberbeck The Mayor thereupon declared this Resolution duly passed and adopted this ~ day of ~/~_~~ , 1994. CITY OF SEBASTIAN Arthur L. Firt{on, Mayor Kathry~ ~4..O'R~lloran, CMC/AAE City Clerk .~ (SEAL) /a 'toUr Approved ~ m and Content: Charles ~an Nash, City Attorney PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered into this .~l ... day of /~c~ , 1994, by and between O.R.E.O., INC., a Florida corporation (hereinafter referred to as the "Seller"), and THE CITY OF SEBASTIAN, FLORIDA, a municipal corporation (hereinafter referred to as the "Buyer"). For and in consideration of Ten and No/100 Dollars ($10.00), the purchase price and the mutual covenants and undertakings herein contained, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: I. SALE AND PURCHASE 1.01 Aqreement to Sell and Convey. Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, subject to the terms and conditions hereinafter set forth, all of that .certain parcel of land lying and being situated in Indian River County, Florida, and being more particularly described in Exhibit "A'___~' attached hereto, together with the following: (a) all and singular the rights and appurtenances pertaining thereto including but not limited to any right, title and interest of Seller in and to adjacent streets, roads, alleys, easements and rights-of-way to the extent that such right, title and interest exist and are necessary for the continued current use of the Property described on Exhibit "A"; (b) such other rights, interests and properties as may be specified in this Agreement to be sold, transferred, assigned or conveyed by Seller to Buyer. The parcel of land described in Exhibit "A", together with the Improvements, rights, interests and other properties described above are collectively called the "Property". 1.02 Deposit Payment. Immediately upon execution of this Agreement by both parties and as consideration for this Agreement, Buyer shall deliver its check in the amount of Twenty Five Thousand and No/100 Dollars ($25,000.00) (said sum, together with any and all accrued interest earned thereon, shall be hereinafter paid referred to as the "Deposit"), to Frese, Nash & Torpy, P.A., which shall serve as the "Escrow Agent" pursuant to the terms of this Agreement. The Deposit shall be deposited by Escrow Agent in an interest bearing account at Security National Bank, N.A. In the event that the transaction contemplated by this Agreement is closed on the Closing Date (as hereinafter defined), the Deposit shall be applied to Buyer's obligation at Closing (as hereinafter defined). In the event that the Closing is not held on the Closing Date, Escrow Agent shall pay the Deposit to Buyer or Seller, as the case may be, in accordance with the provisions of this Agreement. In the event Buyer does not elect to terminate this Agreement pursuant to Section 1.05 hereof, the deposit shall become non- refundable (other than for failure of Seller to perform as required under the terms of this Agreement) upon receipt by Seller of the certificate of Title for the Property as a result of being a successful bidder at the foreclosure sale of the Property in connection with Case No. 93-056-CA-09 in the circuit Court of Indian River County, Florida, styled First Union National Bank of Florida, Plaintiff, vs. Carl R. Julian, Trustee, et al. Said Certificate of Title shall be issued to Seller on or before the Closing Date or this Agreement shall be terminated and Buyer shall then receive immediate refund of its entire deposit plus interest and have no further obligations hereunder. Seller agrees to use its good faith diligent efforts to procure the Certificate of Title in a timely fashion. [0~ ~J~ ~' ~un~r,~ 7~re~ ~Q^J 1.03 Purchase Price. The purchase price for the Property ( "Property Purchase Price") to be paid by Buyer to Seller at Closing/ is the sum of ~na ~illign ~cu~ Hun~rc~ ~'~c T~=u~&nd ~ Hun~rc~' -~f~and No/100 Dollar~ ($1,403,000.00) which shall be payable at Closing by cashier's check drawn on a bank with an office in Florida payable to Escrow Agent or wired to Escrow Agent or wired to Escrow Agent for disbursement to Seller and subject to Closing prorations, credits and adjustments as hereinafter set forth. 1.04 Investigation Period. Seller acknowledges that to enable Buyer to proceed with this transaction Buyer must undertake or cause to have undertaken certain tests and studies, including but not limited to engineering studies (hereinafter collectively referred to as "Test and Studies") in which to determine whether, in Buyer's sole discretion, it would be feasible, economically or otherwise, to go forward with Buyer's acquisition of the Property. Buyer shall therefore have until April 15, 1994 in which to undertake any Tests and Studies which Buyer, in its sole discretion, deems necessary to determine the feasibility of its acquisition. Seller agrees to cooperate in connection with the foregoing and agrees that Buyer, its agents, employees, representatives, or contractors shall be provided promptly, upon request, such information as shall be reasonably necessary to examine the Property and the condition thereof and as shall be in the possession of Seller or reasonably obtainable by Seller. If for any reason whatsoever during this Investigation Period Buyer elects not to proceed with the transaction contemplated herein, then Buyer shall have the right to terminate this Agreement by providing Seller with written notice of such election prior to expiration of the Investigation Period. In the event Buyer provides such written notice, the Deposit shall be returned by Escrow Agent to Buyer and this Agreement shall be deemed terminated, cancelled, and of no further force and effect. Buyer's right to terminate this Contract shall terminate upon expiration of the Investigation Period and the failure of Buyer to notify Seller in accordance with the terms hereof of its election to terminate shall be deemed a notice to Seller that Buyer has elected to proceed with the transaction contemplated hereby. - 2 - Buyer and its agents, contractors or employees shall have the right to enter upon the Property for the purpose of performing its Tests and Studies at any time prior to the expiration of the Investigation Period. Buyer agrees to repair any and all damage caused by Buyer or its agents, contractors or employees to the Property occasioned by Buyer's investigation of the Property, and further agrees to indemnify and hold Seller harmless from any and all losses, damages, claims, or causes of action in any way related to Buyer's investigation of the Property. Seller agrees to provide to Buyer, within ten (10) days of Execution Date, any and all reports, surveys and other documentation within Seller's possession or control which relate to the Property. In the event Buyer elects to terminate as provided herein, Buyer agrees to promptly return or provide to Seller all written documentation received from Seller or otherwise procured by Buyer relating to the Property without any charge to Seller. 1.05 Level 1 Environmental Audit and En~ineerin~ Reports. Notwithstanding any other terms and conditions contained in this Agreement, this Agreement, and Buyer's obligations hereunder, are specifically contingent upon Buyer obtaining, at Buyer's expense, a Level 1 Environmental Audit indicating that there are no "hazardous wastes" on the Property and an engineering report reflecting that the Property is structurally sound. Buyer shall obtain said Environmental Audit and engineering report prior to expiration of the Investigation Period. 1.06 Brokeraqe. The parties hereto acknowledge that neither has any obligation whatsoever to any real estate broker or agent in connection with the transaction contemplated by this Agreement. Each agrees to hold the other harmless from any and all loss, liability, cost, claim, demand, damage, action, cause of action or suit arising out of any manner relating to alleged employment or use by the other party of any real estate broker or agent in connection with this transaction. II. TITLE REQU.!.~ENTS~ ~URVEY AND PERMITTED EXCEPTIONS 2.01 Title Evidence. Before Closing, Buyer shall procure a commitment for owner's title insurance, issued by Frese, ~ash & Torpy, P.A., as agent for Commonwealth Land Insurance Company (the "Title Company"), together with legible copies of all instruments and documents affecting title to the Property and listed in the commitment as exceptions to title. The commitment shall agree to issue to Buyer, upon the Closing of this transaction, a title insurance policy in the full amount of the Property Purchase Price, without exception for any matters other than the Permitted Exceptions as hereinafter set forth in Section 2.04. 2.02 Current Survey. On or before Closing, Buyer may obtain at Buyer's expense, a survey of the Property. The survey shall be certified within thirty (30) days prior to the Closing Date and shall: - 3 - (a) Set forth an accurate description of the Property; (b) Locate all existing easements and rights-of-way (setting forth the book and page number of the recorded instruments creating the same), alleys, streets and roads; (c) improvements; Show any encroachments upon or by the land and (d) Show all existing Improvements (such as buildings, power lines, fences, etc.); (e) Contain a survey's certification in favor of Buyer, Escrow Agent, and the Title Company and such other parties as Buyer may designate; (f) Show all dedicated and maintained public streets providing access to the Property and whether such access is paved to the property line of the land; (g) State whether the Property is located in a flood zone and, if so, the specific flood zone designation of the .Property; (h) Be prepared in conformity with minimum technical standards and detail requirements for land title surveys of the American Land Title Association and Florida Statutes. In the event the survey shows any encroachments of any improvement upon, from or onto the Property, said encroachment shall be deemed to be a title defect and shall be treated as an objection to title by Buyer under Section 2.03 hereof. Seller agrees to deliver to Buyer any and all existing surveys, reports, studies and copies of all other documentation within Seller's possession or control relating to the Property within five (5) days of the Execution Date. "Execution Date" shall be the date on which this Agreement is fully executed by both parties hereto. Prior to the Closing, Buyer may have the survey recertified in order to cause the certification date to be closer to the Closing Date, and any subsequent change in the required survey which may appear in the recertified survey, other than the certification date, shall be subject to the terms and provisions of Section 2.03 hereof. 2.03 Cure of Title and Survey Defects. If the title binder and/or survey reveals any defects or any matters that are unacceptable to Buyer, Buyer may, at its option, (a) accept title subject to the objections raised by Buyer in which event said objections shall be deemed to be waived for all purposes, or (b) cancel this Agreement, whereupon the Deposit shall be returned to Buyer and this Agreement shall be of no further force or effect. Seller shall have no obligation whatsoever to cure any defects and - 4 - shall only be obligated to execute documents ordinarily required to be signed by a seller of real property without title defects. It is specifically understood that the following will be deemed defects as described in this section: (a) rights or claims of parties in possession not shown by public records (except as permitted under Section 2.04(c) and except tenants occupying under terms of tenant leases); (b) easements or claims of easements not shown by public records; (c) discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any items in which a correct survey and inspection of the Property would disclose and which are not shown by public records; (d) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by public records; and (e) defects and liens first appearing subsequent to effective date of title commitment but prior to the Closing Date. (f) real estate taxes, except taxes for years subsequent to 1993. 2.04 Permitted Exceptions. The Property shall be conveyed to Buyer subject to no liens, charges, encumbrances, easements, restrictions, exceptions or reservations of any kind or character other than the following exceptions (collectively, the "Permitted Exceptions"): (a) Ad valorem taxes for the year of Closing and subsequent years; (b) Tenants-in-possession pursuant to written leases; and (c) Any easements, restrictions and other matters which may be waived by Buyer pursuant to Section 2.03 hereof. (d) utility and drainage easements of record. (e) Restrictions, reservations and conditions of record applicable to the area in which the Property is located. (f) Zoning or other governmental restrictions. Buyer shall have fifteen (15) days to review the items described in (c) and (d) above. III. PROVISIONS WITH RESPECT TO CLOSING - 5 - 3.01 Closinq Date. The consummation of the transaction contemplated by this Agreement (the ,'Closing") shall take place in Melbourne, Florida, at l:00 p.m. in the offices of Frese, Nash & Torpy, P.A. on April 28, 1994 (the "Closing Date"), or at such other place and time as Buyer and Seller mutually agree to in writing. Possession of the Property shall be granted by Seller to Buyer no later than the Closing Date. In the event Seller has not yet received Certificate of Title for the Property, Buyer may, at its sole option, extend Closing Date up to sixty (60) days to allow Seller to acquire the certificate of Title. 3.02 Seller's ObliGations at Closing. At the Closing, Seller shall do the following: (a) Execute, acknowledge and deliver to Buyer a Special Warranty Deed conveying good and marketable title to the Property to Buyer subject only to the Permitted Exceptions (and any other exceptions which may be contained in the title insurance commitment and which have been accepted by Buyer pursuant to Section 2.03), which special warranty deed shall be in statutory form for recording; or, by mutual agreement of the parties, in lieu of the special warranty deed, Seller may execute whatever documents are necessary to assign the successful bid entered on March 28, 1994 by Seller in the foreclosure action described in Section 1.02 above to Buyer; (b) Execute and deliver to Buyer and the Title Company a mechanic's lien and possession affidavit in sufficient form and substance so as to allow the Title Company to remove the mechanic's lien exception and parties-in-possession exception from the title policy (excepting only the Tenants as tenants only pursuant to written leases); (c) Execute and deliver instruments satisfactory to the Title Company reflecting the proper power, good standing and authorization for the sale of the Property from Seller to Buyer hereunder; (d) Execute and deliver to Buyer and the Title Company a FIRPTA affidavit in form and substance acceptable to both Buyer and the Title Company. (e) Assign to Buyer all service contracts, if any, applicable to the Property. 3.03 Buyer's Obliqations at Closinq. Contemporaneously with the performance by Seller of its obligations set forth in Section 3.02 above, at Closing, Buyer shall do the following: (a) Wire transfer to Escrow Agent's bank account the net proceeds necessary to close this transaction by wire transfer received no later than l:00 p.m. on the Closing Date, or provide closing proceeds by cashier's check drawn on a banking institution with an office in Florida; - 6 - (b) Deliver an owner's title insurance policy or "marked up" title commitment insuring fee simple title to the Property to Buyer in a face amount equal to the Property Purchase Price and containing no exceptions other than the Permitted Exceptions and other exceptions, if any, which Buyer may, in Buyer's sole discretion, consent to in writing; (c) Execute and deliver instruments satisfactory to the Title Company reflecting the proper power, good standing and authorization of the Buyer to acquire the Property; (d) Execute a mutually agreeable Closing Statement and Disbursement Schedule authorizing the Escrow Agent to disburse funds at Closing; (e) Execute and deliver to Buyer all other documents as may be required by this Agreement. 3.04 Closin~ Costs. (a) Seller shall pay the following costs and expenses in connection with the Closing: (i) attorneys' fees. Its cost of document preparation and its (b) Buyer shall pay the following costs and expenses in connection with the Closing: (i) State documentary stamp taxes and recording fees in connection with the delivery and recording of the Warranty Deed and all instruments necessary to render title acceptable to Buyer; and (ii) The premium (computed allowing for full reissue credit, if any, allowable by Commonwealth Land Title Insurance Company) and all search fees payable for the owner's policy of title ~nsurance; (iii) Survey costs, costs of the Phase I environmental study and the costs of all other investigations or reports performed by or on behalf of Buyer in connection with the Property; (iv) its cost of document preparation and its attorneys' fees; (v) Any and all costs associated with third party financing for the Property; and (vi) Appraisal cost, if any. 3.05 Prorations. The following items shall be prorated between Seller and Buyer as of midnight of the day the date of Closing; such prorations favoring Buyer shall reduce the cash - 7 - payable by Buyer at the Closing, and such prorations favoring Seller shall increase the cash payable by Buyer at the Closing: Property Taxes and Assessments. City, state and county ad valorem taxes and assessments for the year of Closing based on the ad valorem tax bill for the Property, for such year and utilizing the maximum allowable discounts. The proration for taxes and assessments, if not known for the year of Closing at the time of Closing, shall be based upon the prior year's ad valorem taxes but shall be adjusted between the parties when the tax statements for the year of Closing are available. IV. AFFIRMATIVE COVENANTS, WARRANTIES AND REPRESENTATIONS OF SELLER 4.01 Seller expressly covenants, warrants and represents the following matters as of the date of this Agreement and as of Closing: (a) Adverse Information. Seller has received no notice of any change contemplated in any applicable laws, ordinances or restrictions, or of any judicial or administrative action or of any .action by adjacent landowners, which would prevent, limit, or impede Buyer's use of the Property as an apartment project. (b) Compliance With Laws. Seller has received no notice of any violation of any applicable laws, ordinances, regulations, statutes, rules and restrictions pertaining to and affecting the Property. (c) No Condemnation Pending or Threatened. There is no pending or threatened condemnation or similar proceeding affecting the Property or any portion thereof, and Seller has no knowledge that any such action is presently contemplated. (d) Rights of Acquisition. No other person, firm, corporation or other entity has any right or option to acquire the Property or any portion thereof or any interest therein. (e) Parties in Possession. There are no parties in possession of any portion of the Property, whether as 16ssees, tenants at sufferance, trespassers or otherwise. (f) Operation of Property. During the period between the date hereof and the Closing, Seller shall comply with all state and municipal laws, ordinances, regulations and orders relating to the Property and will not enter into any agreements affecting the Property without Buyer's consent. (g) Title to Property. Seller agrees to bid up to the full amount of its judgment at the foreclosure sale in order to procure a Certificate of Title on the Property. If and when such Certificate of Title is obtained by Seller, Seller knows of no contractual or other legal prohibition or restriction on Seller's - 8 - ability to convey fee simple title to Buyer hereunder free and clear of any and all encumbrances whatsoever. (h) Litiqation. The only litigation involving the Property is the lawsuit referred to in Section 1.02 above. (i) Public Assessments. As of the effective date, no assessment for public improvements have been made against the Property that remain 'unpaid. (j) Hazardous Substances. Neither Seller nor any of its agents or employees are aware of, or have received, any information whatsoever indicating the existence of any hazardous substance in, on or under the Property or any adjacent property, now or in the past. (k) Foreclosure Sale. Seller will do no act or fail to do any act which will postpone or cancel the issuance of Certificate of Title to the Property to Seller without the prior written consent of Buyer. Ail of the above warranties and representations shall survive .Closing. Sub-sections d, e, h, i and j are warranted and represented only to the best of Seller's knowledge. V. RISK OF LOSS 5.01 Seller to Bear Risk. The risk of loss or damage to the Property by fire, casualty, or otherwise (except condemnation, which is provided for in Section 5.03 hereof and acts of Buyer or its agents), prior to the Closing, is assumed by Seller. Buyer shall have the option to cancel this Agreement in the event of any material damage or loss to the Property prior to Closing unless Seller promptly repairs all such damage and promptly replaces such losses. 5.02 ~otice. If at any time prior to the Closing, all or any portion of the Improvements are destroyed or damaged as a result of fire or any other cause whatsoever, Seller shall promptly give written notice thereof to Buyer. 5.03 Risk of Loss by Condemnation. Ail risk of condemnation of the Property or any Improvements thereon, and the loss therefrom, prior to the Closing is assumed by Seller. In the event of condemnation, Buyer may, at its option, elect to terminate this Agreement and shall notify the Escrow Agent to return the Deposit, together with all accrued interest, to Buyer and this Agreement shall thereafter be null and void, or Buyer may elect to close the transaction in which case it shall be entitled to all condemnation proceeds. - 9 - VI. PROVISION WITH RESPECT TO FAILURE OF TITLE AND DEFAULT 6.01 Dgfault bv Seller. In the event Seller fails to comply with any of its obligations or conditions hereunder, Buyer shall have the right to cancel this Agreement and receive the return of the Deposit, or it may pursue specific performance of this Agreement, but may not maintain an action for damages, except in the event of a willful default by Seller. 6.02 Default by Buyer. In the event Buyer should fail to comply with any of its obligations or conditions hereunder, including, but not limited to failure to consummate the transaction contemplated herein, Escrow Agent shall pay the Deposit (together with any and all additional deposit monies paid) to Seller, such sum being agreed by Buyer and Seller as liquidated and exclusive damages for the failure of Buyer to perform the duties, liabilities and obligations imposed upon it by the terms and provisions of this Agreement and because of the difficulty, inconvenience and uncertainty of ascertaining actual damages. 6.03 Attorneys' Fees and Costs. In the event of any litigation between the parties arising out of this Agreement or the collection of any funds due Buyer or Seller pursuant to this Agreement, the prevailing party shall be entitled to recover all costs incurred, including without limitation reasonable attorneys' and paralegals' fees and costs, whether such fees and costs are incurred at trial, on appeal or in any bankruptcy proceedings. Vii. ESCROW 7.01 Escrow Aqent and Escrow Procedure. The Escrow Agent, by acceptance of the funds deposited by Buyer hereunder, agrees to hold such funds and to disperse the same only in accordance with the terms and conditions of this Agreement. If the Escrow Agent is in doubt as to its duties or liabilities under the provisions of this Agreement, it may, in its sole discretion, continue to hold such funds until the parties mutually agree to disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of the parties hereto, or Escrow Agent may deposit such funds with the Clerk of the Circuit Court of Brevard County, Florida, pursuant to interpleader procedure, whereupon after notifying all parties concerned with such action and paying all costs imposed by the Clerk as a result of such deposit, all liability on the part of Escrow Agent shall terminate except to the extent of accounting for any monies theretofore delivered out of escrow. Buyer and Seller hereby agree to indemnify and hold Escrow Agent harmless against any and all losses, claims, damages liabilities and expenses, including without limitation, costs of investigation and attorneys' fees which may be imposed upon Escrow Agent or incurred by Escrow Agent in connection with the performance of its duties hereunder and including, without limitation, any litigation arising from this Agreement or involving - 10 - the subject matter hereof, except for matters arising out of the gross negligence or willful misfeasance of Escrow Agent. The Seller and Buyer agree that the status of the Seller's counsel as the Escrow Agent under this Agreement does not disqualify such law firm from representing the Seller in connection with this transaction in any dispute that may arise between the Buyer and the Seller concerning this transaction, including any dispute or controversy with respect to the deposit. This provision shall survive the Closing or the termination of this Agreement, whichever first occurs. VIII. OTHER CONTRACTUAL PROVISIONS 8.01 Assiqnment. This Contract may be assigned by Buyer. 8.02 Notices. Ail notices which are required or permitted hereunder must be in writing and shall be deemed to have been given, delivered or made, as the case may be (notwithstanding lack of actual receipt by the addressee) (i) when delivered by personal delivery, or (ii) three (3) business days after having been .deposited in the United States mail, certified or registered, return receipt requested, sufficient postage affixed and prepaid, or (iii) one (1) business day after having been deposited with an expedited, overnight courier service (such as by way of example but not limitation, U.S. Express Mail, Federal Express or Purolator), addressed to the party to whom notice is intended to be given at the address set forth below: Buyer: The City of Sebastian, Florida Attn: Mr. Joel L. Koford 1225 Main Street Sebastian, FL 32958 Telephone: (407) 589-5330 With Copy to: Frese, Nash & Torpy, P.A. Attn: Gary B. Frese 930 S. Harbor city Blvd., #505 Melbourne, FL 32901 Telephone: (407) 984-3900 Seller: O.R.E.O., Inc. Attn: Patrick M. Dunigan Post Office Box 1000 Orlando, FL 32802 Telephone: (407) 649-5637 With Copy to: Carlton, Field, Ward, Emmanuel, Smith & Cutler, P.A. Attn: Thomas D. Scanlon Firstate Tower Post office Box 1171 Orlando, Florida 32802 Telephone: (407) 849-0300 - 11 - Escrow Agent: Frese, Nash & Torpy, P.A. Attn: Gary B. Frese 930 S. Harbor City Blvd. Suite 505 Melbourne, FL 32901 Telephone: (407) 984-3300 Any party may change the address to which its notices are sent by giving the other party five (5) days prior written notice of any such change in the manner provided in this section, but notice of change of address is effective only upon receipt. 8.03 Entire Aqreement. This Agreement embodies and constitutes the entire understanding among the parties with respect to the transaction contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. 8.04 ADD!icable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties hereby consent to jurisdiction and venue in Brevard County, Florida, and agree that such jurisdiction and venue shall be sole and exclusive for any and all actions or disputes related to this Agreement or any related instruments. 8.05 Headinqs. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provisions of this Agreement. 8.06 Dindinu Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, personal representatives, successors and assigns. 8.07 CounterpD.rts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument, but all such counterparts together- shall constitute one and the same instrument. 8.08 Interpretation. Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female gender and neuter and vice versa. This Agreement and any related instruments shall not be construed more strictly against one party than against the other by virtue of the fact that initial drafts were made and prepared by counsel for one of the parties, it being recognized that this Agreement and any related instruments are the product of extensive negotiations between the parties hereto and that both parties hereto have contributed substantially and materially to the final preparation of this Agreement and all related instruments. - 12 - 8.09 Severabili~y. in case any one or more of the provisions contained in the Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 8.10 Time. The expiration of any period of time prescribed in this Agreement shall occur at 5:00 p.m. of the last day of the period. Should any period of time specified herein end on a Saturday, Sunday, or legal holiday (recognized in Melbourne, Florida), the period of time shall automatically be extended to 5:00 p.m. of the next full business day. 8.11 Final Date for_~e~utionl This Agreement shall be null and void if not executed by all parties on or before 4~7-~, 1994. 8.12 United States Treasury Requlations - Foreign Corporations. Seller represents and warrants to Buyer that Seller is not a "foreign person", as such term is defined in Section 1.897-1(k), United States Treasury Regulations, and that, accordingly, the transactions contemplated in this Agreement are ~not subject to the withholding requirements imposed by Section 1445 of the United States Internal Revenue Code of 1986, as amended (the "Code"). At the Closing, Seller agrees to execute and deliver to Buyer such affidavits as Buyer's counsel and Title Company may request in order to insure that Seller and Buyer have complied with the requirements of Section 1445 of the Code. 8.13 ~ection 6045¢e] .... Of the Internal Revenue Code of 1986. Seller and Buyer acknowledge and agree that Section 6045 (e) of the Internal Revenue Code of 1986 requires that notice of the sale and purchase of the Property described in this Agreement be provided to the Internal Revenue Service (herein "iRS") by preparation of and filing with the IRS of IRS Form 1099-B; and further, Seller and Buyer agree to furnish and provide to the closing agent any and all information that the closing agent may require in order for it to (a) comply with all instructions to the IRS Form 1099-B in the preparation thereof, and (b) prepare and timely file with the IRS said IRS Form 1099~B with respect to this transaction. 8.14 Authority Qf....~arties. Seller and Buyer represent to each other that each has full power and authority to enter into and perform this Agreement, all related instruments and the documentation contemplated hereby and thereby in accordance with their respective terms and that the delivery and performance of this Agreement, all related instruments and the documentation contemplated hereby and thereby has been duly authorized by all necessary action. 8.15 Further Assurances. In addition to the obligations required to be performed hereunder by Seller and Buyer at Closing, Seller and Buyer shall perform such other acts, and execute, acknowledge and deliver subsequent to Closing such other - 13 - instruments, documents and other materials as the other may reasonably request in order to effectuate the consummation of the transactions contemplated herein and to vest title to the Property in Buyer. 8.16 No Waiver. Neither the failure of either party to exercise any power given such party hereunder or to insist upon strict compliance by the other party with its obligations hereunder, nor any custom or practice of the parties at variance with the terms hereof shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. 8.17 Execution Date. The Execution Date of this Agreement shall be the date on which the last of Seller and Buyer shall sign the same. 8.18 Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. iN WITNESS WHEREOF, the parties hereto have executed this Agreement. Signed, sealed and delivered O.R.E.O., INC. Dated: ' BUYER: Approved as to Form~a~egal/ Sufficiency: Charles Ian Nas~, City Attorney Arthur L. Firtio~ayor Attest ,- ' ' _ '. __~ Kathr~ M. O'Halloran CMC/ACC, City Clerk - 14 - ESCROW AGENT'S ACCEPTANCE The undersigned agrees to act as Escrow Agent in accordance with the foregoing Agreement and acknowledges receipt of the Deposit (in the form of a check, subject to collection). Witnesses: FRESE, NAS~, By: . Dated: q /111~¥ Poao - 15 - PARCELI: EXH]]3IT 'A" Page One Tract C and that portion of Tract D shown on the REPLAT OF SCHOOL PARK SUBDIVISION, as recordexi in Plat Book 2, page 29, Public Records of Indian River County, Florida, which lies Northerly of the center line of the section of Main Street which connects Main Street as shown on the said REPLAT OF SCHOOL PARK SUBDMSION, with Main Street as shown on the plat of SEBASTIAN GARDENS SUBDMSION, as recorded in Plat Book 5, page 58, Public'Records of Indian River County, Florida; LESS AND EXCEPT: Those certain parcels as set forth in Deeds recorded in Official Record Book 866, Page 2260 and Official Record Book 866, Page 2264, of the Public Records of Indian River County, Florida, and described as follows: All of the following described strip of land lying East of Range 38 East and North of the existing Main SWeet right-of-way. A strip of land lying 40.00 feet on each side of the following described line. Commence at a concrete monument at the Northwest comer of Lot 6, Block 5, Replat of School Park Subdivision; thence N 00°18'41'' W at a right angle to the North line of said Block 5, 40.00 feet to a railroad spike being the Point of Beginning; thence S 89°41'19" W a distance of 31.54 feet to a railroad spike marking a point of curvature; thence along the arc of a curve to the left having a delta of 25°17'53" a radius of 402.98 feet, an arc length of 177.93 feet to a railroad spike marking .the point of tangeney; thence S 64°23'26~ W a . . distance of 134.85 feet to a point of curvature; thence along the arc of a curve to the left having a delta of 6°00'00~ a radius of 2000.00 feet, an arc distance of 209.44 feet to a point of reverse curvature; thence continue along the are of a curve to the right having a delta of 12°00'00" a radius of 2000.00 feet, an arc distance of 418.88 feet to a point of reverse curvature; thence continue along the arc of a curve to the left having a delta of 6o00'00" a radius of 2000.00 feet, an arc distance of 209.44 feet to a rebar and cap stamped LB//4644 marking a point of compound curvature; thence continue along the arc of a curve to the left having a delta of 19%2'59" a radius of 690;00 feet, an arc distance of 235.43 feet to a railroad spike marking the point of tangeney; thence S 44o50'27" W a distance of 63.48 feet to a railroad spike being the ending point of said description. It is the intent that the side lines of said strip are to be lengthened or shortened to terminate at the West tine of said Sebastian Gardens Subdivision. EXI-ffBIT "A' Page Two PARCEL 12: Being a portion of Tract mD", Replat of School Park. Subdivision as recorded in Plat Book l, Page 29, Public Records Indian River County, Florida, being more fully described as follows: Commence at a concrete monument at the Northwest comer of Lot 6, Bloek 5, Replat of School Park Subdivision; thence N 00°18'41' W at a fight angle to the North line of said Block 5, 80.00 feet to the South line of Tract 'B", Replat of School Park Subdivision; thence S 89°41'19- W on said line a distance of 31.54 feet to the point of beginning; thence continue S 89°41'19- W a distance of 179.96 feet to a concrete monument marking the Southwest comer of said Tract 'Bm; thence S 22°25'07- E a distance of 35.19 feet to the North right-of-way line of the proposed Main Street alignment; thence Northeasterly on said line, along the arc of a curve to the right having a radius of 442.98 feet, a delta of 22°06'26m for an arc distance of 170.92 feet back to the Point of Beginning. PARCEL 14: Being a portion of Tract mC" and Tract 'Dm, Replat of School Park Subdivision as recorded in Plat Book I, Page 29, Public Records of Indian River County, Florida, being more fully described as follows: Commencing at a concrete monument at the Northwest comer of Lot 6, Block 5, Replat of School Park Subdivision; thence N 00°18'41- W at a fight angle to the North line of said Block 5, 80.00 feet to the North right-of-way line of the proposed'Main Street alignment; thence mn in a Westerly direction on said right-of-way line along the arc of a curve having a radius of 442.98 feet, a delta of 22°06'26', for an arc distance of 170.92 feet to the Point of Beginning; thence continue along the arc of a curve to the left having a radius of 442.98 feet, a delta of 3°11'27m, for an arc distance of 24.67 feet to a point of tangency; thence S 64°23'26m W a distance of 45.02 feet; thence, leaving said right-of-way line; mn N 0°16'13- W on a line parallel to and 50.00 feet West of the West line of Tract mBm, Replat of School Park Subdivision, 193.45 feet to a point of curvature; thence continue along the arc of a curve to the left having a radius of 260.00 feet, a delta of 42o52'37' for an arc distance of 194.57 feet to the North line of said Tract mC"; thence N 89°36'46m E a distance of 99.70 feet to a point of curvature; thence Southerly along the arc of a curve to the right having a radius of 340.00 feet, a delta of 7°18'04'', for an arc distance of 43.32 feet to a point on the West line of said Tract 'Bm; thence S 0°16'13m E along said West line a distance of 271.30 feet to a concrete monument marking the Southwest comer of said Tract "B"; thence S 22°25'07~ E a distance of 35.19 feet to the North right-of-way line of the proposed Main Street alignment and the Point of Beginning. PARCEL II: EXIq-rBIT "A" Page Three Lot 1 and Lot 2, A. A. BERRY'S SUBDIVISION, according to the plat thereof filed in the Office of the Clerk of the Circuit Court of St. Lucie County, Florida, in Plat Book 2, page 14, said land now situate, lying and being in Indian River County, Florida; PARCEL Lots 8, 9, 18, 19, less the Northwest 20 feet of said Lot 19, Lots 20, 2I, 22, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, 58, 59 and 60, all in Section 30, FLEMI2qG GRANT, according to the plat thereof filed in the Office of the Clerk of the Circuit Court of St. Lueie County, Florida, in Plat Book 1, page 175, said land now situate, lying and being in Indian River County, Florida; P~CEL IV: .,.. Tracts A, B, C, that portion of Tract D lying North of Main Street, Tracts E, F, G, H, I and J; Lots 1 through 3, inclusive, Block 3; Lots 1 through 13, inclusive, Block 8; LOts 1 through 9, inclusive, Block 9; Lots 1 through 5, inclusive, Block 10; Lots 1 through 10, inclusive, Block 11; Lots 1 through 10, inclusive, Block 12, and Lots 1 and 2, Block A, all in SEBASTIAN GAtLDENS, a subdivision according to the plat thereof filed in the Office of the Clerk of the Circuit Court of Indian River County, .Florida, in Plat Book 5, page 58; LESS AND EXCEPT: That part of Tract E as set forth in Deed recorded in Official Record Book 866, Page 2260, of the Public Records of Indian River County, Florida, described as follows: All of that portion of Tract E, according to the Plat of Sebastian Gardens as recorded in Plat Book 5, Page 58, Public Records of Indian River County, Florida, lying within the following described strip of Land. A strip of land lying 40.00 feet on each side of the following described line. EXI-ffBIT 'A" Page Four Commence at a concrete monument at the Northwest comer of Lot 6, Block 5, Replat of School Park Subdivision; thence N 00~18'41' W at a right angle to the North line of said Block 5, 40.00 feet to a railroad spike being the Point of Beginning; thence S 89"41'19" W a distance of 31.54 feet to a railroad spike marking a point of curvatnre; thence along the arc of a curve to the left having a delta of 25'17'53~ a radius of 402.98 feet, an arc length of 177.93 feet to a railroad spike marking the point of tangency; thence S 64°23'26~ W a distance of 134.85 feet to a point of eurvatnre; thence along the arc of a curve to the left having a delta of 6 °00'00' a radius of 2000.00 feet, an are distance of 209.44 feet to a point of reverse curvature; thence continue along the arc of a curve to the right having a delta of 12°00'00~ a radius of 2000.00 feet, an arc distance of 418.88 feet to a point of reverse curvature; thence continue along the arc of a curve to the left having a delta of 6°00'00~ a radius of 2000.00 feet, an arc distance of 209.44 feet to a rebar and cap stamped LB//4644 marking a point of compound curvature; thence continue along the arc of a curve to the left having a delta of 19°32'59~ a radius of 690.00 feet, an arc distance of 235.43 feet to a railroad spike marking the point of tangency; thence S 44°50'27~ W a distance of 63.48 feet to a raikoad spike being the ending point of said description. It is the intent that the side lines of said strip are to be lengthened or shortened to terminate at the West line of said Sebastian Gardens Subdivision: PARCEL V: Roseland Satellite Field, Tract 4, as filed in Official Record Book 77, page 530, Indian River County, Florida, Public Records," more particularly describe~l as follows: Beginning at the East comer of Section 29 of the Fleming Grant, mn South 45 degrees 09 minutes 04 seconds West for a distance of 1,706.27 feet to a point; thence North 44 degrees 25 minutes 58 seconds West for a Distance of 1,137.55 feet to a point; thence North 01 degree 54 minutes 57 seconds East for a distance of 963.48 feet to a point; thence North 45 degrees 09 minutes 04 seconds East for a distance of 1,009.32 feet to a point; thence South 44 degrees 25 minutes 58 seconds East for a distance of 1,797.75 feet to the point of beginning. All lying and being in Indian River County, Florida.