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FIRST BAPTIST CHURCH OF CLEARWATER INCORPORATED-CALVARY BAPTIST (2) '. REAL ESTATE PURCHASE AND EXCHANGE AGREEMENT (Purchase of Hampton Road Property by City of Clearwater - Agreement #2) THIS REA~TATE PURCHASE AND EXCHANGE AGREEMENT made and entered into this~ day of July, 2000, by and between FIRST BAPTIST CHURCH OF CLEAR WATER INCORPORATED dba CALVARY BAPTIST CHURCH ("Calvary") and THE CITY OF CLEARWATER, FLORIDA ("City") (together Calvary and City shall be referred to as the "Parties"); WIT N E SSE T H: WHEREAS, the City owns certain real property known as Chesapeake Park located on the west side of McMullen Booth Road approximately 45 feet south of Drew Street (hereinafter referred to as the "Chesapeake Park Property") and more specifically described in Exhibit "A" attached hereto; and WHEREAS, Calvary owns certain real property comprising approximately 5 acres at the intersection of Drew Street and Hampton Road (hereinafter referred to as "Hampton Road Property") and more specifically described in Exhibit "B" attached hereto; and WHEREAS, the City and Calvary have reached an agreement wherein the City will sell and transfer the Chesapeake Park Property to Calvary (the Agreement as to this transaction shall be referred to as Agreement #1) in exchange for the sale and transfer of the Hampton Road Property by Calvary to the City (the Agreement as to this transaction shall be referred to as Agreement #2); and WHEREAS, by Resolution of May 18, 2000, the City has approved the concept of the land exchange contemplated herein subject to a formal referendum authorizing such exchange [a copy of which is attached hereto as Exhibit "C"]; and WHEREAS, the City and Calvary desire to memorialize their agreement as further set forth herein; NOW THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both parties, Calvary and City do hereby agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated herein by reference. 2. Earnest Money Deposit. None 3. Consideration. Calvary shall sell and the City shall purchase the Hampton Road Property for consideration equal to $580,000.00. The consideration shall be in the form of a conveyance of the Chesapeake Park Property from the City to Calvary. 4. Conveyance by Calvary. At a closing to occur simultaneous with the conveyance of the Chesapeake Park Property by City to Calvary, Calvary shall convey to the City by good ,~ and sufficient warranty deed containing full covenants of warranty a fee simple, marketable title to the Hampton Road Property. 5. Title Insurance. Calvary shall order and provide at its expense a commitment for title insurance in the amount of the sale consideration ($580,000.00), which commitment shall show a marketable, unencumbered, fee simple title in the name of Calvary as to the Hampton Road Property. The City shall have fifteen (15) days after the delivery of said commitment for the examination thereof, and within said period shall notify Calvary in writing of any objections to said title. If this notification is not given within said period of time, then said title shall be conclusively deemed to be acceptable to the City. In the event that the title to the Hampton Road Property is not good and marketable, Calvary shall have thirty (30) days thereafter to perfect the title; and if the defects are not cured within such time, then the City may cancel this Agreement, or waive the defects and accept the property without deduction on account of said defects. A final title insurance policy will be issued to the City as soon after closing as possible. Calvary shall select a title insurance company and closing agent which is reasonably acceptable to the City. 6. Permitted Exceptions. The Hampton Road Property shall be conveyed to the City subject to no liens, charges, encumbrances, easements, restrictions, exceptions or reservations of any kind or character other than the following exceptions (the "Permitted Exceptions"): a. Zoning ordinances. b. Any easements, restrictions or other matters which appear in the commitment and/or survey (excluding standard exceptions) which are not objectionable exceptiOns. c. Any agreements between the parties that are part of this agreement. 7. Survey. The City may, at its own expense, order a survey of the Hampton Road Property. 8. Closing and Possession. The sale and exchange contemplated herein shall occur on or before the 1st day of October, 2000, and said Closing shall be simultaneous with the purchase of the Chesapeake Park Property by Calvary from the City. Possession shall take place upon closing. Closing shall be held at the offices of Macfarlane Ferguson & McMullen, 625 Court Street, Second Floor, Clearwater, Florida 33756 or at such other place with the consent of both parties. Closing of this Real Estate Purchase and Exchange Agreement is expressly contingent upon the closing of the Real Estate Purchase and Exchange Agreement of even date herewith between Calvary and the City as to the Chesapeake Park Property. 9. Property Taxes. To the extent any property taxes are assessed, all property taxes shall be prorated at Closing. 10. Closing Costs. Calvary shall pay the following costs and expenses in connection with the closing: a. documentary stamps in connection with the conveyance of the Property; t~ 2 b. the premium and all search fees payable for the owner's policy of title insur- ance. c. recording fees in connection with those instruments necessary to render title acceptable to purchasing party; d. its costs of document preparation and its attorneys I fees; and e. any costs of operating the Property which have been accrued on or prior to the closing date. The City shall pay the following costs and expenses in connection with the closing: a. recording fees in connection with the general warranty deed; and b. its costs of document preparation and its attorneys' fees. 11. Risk of Loss. The risk of loss or damage to the premises by fire or otherwise, until delivery of deed, is assumed by the party in ownership. The owning party further agrees to maintain the property and to deliver said property to the City in the same condition as it is when this contract was executed, ordinary wear and tear excepted. 12. Contingencies. This agreement and the closing contemplated hereunder IS expressly contingent upon the satisfaction of the following contingencies: a. The passage of a citywide referendum within the City of Clearwater which referendum authorizes the transaction as contemplated in the Resolution; and b. The conveyance by the City of the Chesapeake Park Property to Calvary. 13. Affirmative Covenants. Warranties and Representations of Calvary. a. Operating the Property. Between the date hereof and the closing, Calvary shall maintain the Property in substantially the same manner as prior to the date hereof. b. 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. c. Zoning. The present zoning and land use classification of the Property according to the current and applicable zoning ordinances is park/open space. d. Title to Property. Calvary owns fee simple title to the land, the improvements and the appurtenances, which at the time of closing will be free and clear of all restrictions, liens, encumbrances, easements, exceptions, Uniform Commercial Code financing statements and security interests of every kind and character, except for the Permitted Exceptions. e. No Assessments. No assessments have been made against the Property that are unpaid (except ad valorem taxes for the current year), whether or not they have become liens, and if, at the time of closing, the Property or any part thereof shall be or shall have been affected by an assessment or assessments and that are or may become payable in installments, of which the first installment is then a charge or lien, or has been paid, then for the purposes of this Agreement all of the unpaid installments of any such assessments, including those that are to become due and payable after closing, shall be deemed to be due and payable and to be liens against the Property 3 ~ affected thereby and shall be paid and discharged by Calvary at closing. No goods or services have been contracted for or furnished to the Property which might give rise to any mechanic's liens or other liens affecting all or any part of the Property. f. Utilities. The subject property is unimproved and Calvary makes no representations as to the existence of utilities. g. Asbestos, Hazardous Wastes and Materials. To the best of Calvary's knowledge, there are no oil, toxic or hazardous wastes or materials, asbestos or other environmentally regulated substances (as such terms may be defined under any federal, state or local laws or regulations) ("Hazardous Waste") located on, in or about any portion of the Property, nor has any such Hazardous Waste been treated, stored or disposed of on, in or about any portion of the Property or used in connection therewith, and Calvary agrees that it will indemnify and hold the City harmless from any and all expense, damage, loss or liability incurred by the City arising from the application of any common law or any federal, state or local statute, regulation, ordinance or other regulatory requirement, including, without limitation, any so- called" superfund" or "superlien" legislation, relating to the presence of Hazardous Waste on, in or about the Property, including, without limitation, costs and reasonable attorneys' fees arising before trial, during trial, after trial, on appeal or in any bankruptcy, arbitration or administrative proceedings. h. Historic Registry. To the best of Calvary's knowledge, the Property is not on any national, state, county or municipal historic registry or similar classification. 1. Landfill. To the best of Calvary's knowledge, the Property has never been used as a landfill or as a garbage dump. J. Cemeteries. To the best of Calvary's knowledge, no cemetery or grave site, whether marked or unmarked and whether abandoned or not, is located on a portion of the Property nor has any of the Property been dedicated as a cemetery under the Florida Cemetery Act. k. Miscellaneous. 1. To the best of Calvary's knowledge, there are no legal actions, suits or other legal or administrative proceedings, including condemnation or similar cases or proceedings, pending or threatened, against the Property, or against Calvary, and affecting the Property or against any third party known to the Calvary affecting the Property, Calvary is not aware of any facts which might result in any such action, suit or other proceedings. 11 To the best of Calvary's knowledge, there are no sinkholes on the Property or sinkhole activity therein. 1. Ingress/Egress. Calvary warrants that there is ingress/egress to the Property. 14. Survival of Representations and Warranties. The representations and warranties of Calvary as set forth herein shall be true and correct as of the date of closing and shall survive 4 p .. the closing of this transaction. Calvary shall defend, indemnify and hold the City harmless from and against and will reimburse the City with respect to any and all losses, claims, demands, causes of action, damages, liabilities, fines, penalties, costs and expenses (including reasonable attorneys' fees and disbursements and court costs whether such fees, disbursements or costs arise before trial, during trial, after trial, on appeal, or in any bankruptcy, arbitration or administrative proceeding) at any time and from time to time after the closing asserted against or incurred by the City by reason of or arising out of a misrepresentation or breach of warranty of Calvary contained in this Agreement. 15. Provision with Respect to Failure of Title and Default. a. Default by Calvary. In the event Calvary fails to comply with any of its obligations or conditions hereunder, the City shall notice Calvary in writing and allow Calvary to cure within a reasonable period of time not to exceed thirty (30) days and thereafter the City shall have the right to cancel this Agreement and it may pursue any and all rights and remedies available to it under Florida law including, but not limited to, the right to seek damages and to seek the specific performance of this Agreement. b. Remedies Cumulative. All rights, powers and privileges conferred upon the City shall be cumulative and in addition to those other rights, powers and remedies hereunder and those available by law or in equity. All such rights, powers and remedies may be exercised separately or at once, and no exercise of any right, power or remedy shall be construed to be an election of remedies or shall preclude the future exercise of any or all other rights, powers and remedies granted hereunder or available at law or in equity. c. Default by the City. In the event the City should fail to consummate the transaction contemplated herein for any reason except for (i) any permissible reasons set forth herein, or (ii) Calvary's default, Calvary may pursue all legal remedies available to it under Florida law including, but not limited to, the right to seek damages and to seek the specific performance of this Agreement. d. 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 Calvary or the City 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 before trial, during trial, after trial, on appeal or in any bankruptcy, arbitration or administrative proceedings. 16. No Broker. It is understood between the parties that this sale was handled without the services of a real estate broker, and therefore, no brokerage commissions are due. City and Calvary warrant each to the other that they have not dealt with any real estate broker or salesperson with regard to the sale/purchase of this Property. 17. Notices. All 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 5 I..; 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 or Federal Express), addressed to the party to whom notice is intended to be given at the address set forth below: As to Calvary: Mr. Larry R. Ponder Calvary Baptist Church 331 Cleveland Street Clearwater, FL 33755 with a copy to: Thomas C. Nash, II, Esq. Macfarlane Ferguson & McMullen 625 Court Street, Suite 200 (33756) P. O. Box 1008 Clearwater, FL 33757 As to City: Mr, Michael Roberto City Manager City of Clearwater, Florida P. O. Box 4748 Clearwater, FL 33758-4748 with a copy to: Pam Akin, Esq. City Attorney City of Clearwater, Florida P. O. Box 4748 Clearwater, FL 33758-4748 Any party may change the address to which its notices are sent by giving the other party written notice of any such change in the manner provided in this Section, but notice of change of address is effective only upon receipt. 18. Entire A~reement. This Agreement and the exhibits referenced herein 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. 19. Applicable Law. This Agreement is construed in accordance with the laws of the State of Florida. 20. Headin~s. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. 6 I~ 21. Bindin~ Effect. This Agreement shall be binding upon and shall inure to. the benefit of the parties hereto and their heirs, personal representatives and successors by law. However, this Agreement shall not be assignable by either party. 22. Counterparts. 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. 23. 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 lOstruments. 24. Severability. In case anyone or more ofthe 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. 25. Time of Essence. Time is of the essence of this Agreement. Should any period of time specified herein end on a Saturday, Sunday or legal holiday (recognized in Clearwater, Florida), the period of time shall automatically be extended to 5:00 p.m. on the next full business day. 26. Final Date for Execution. This Agreement shall be null and void if not executed by all parties on or before July 21, 2000. 27. Authority of Parties. The City and Calvary 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. 28. 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 here- under, 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. 29. Execution Date. The Execution Date of this Agreement shall be the date on which the last of City and Calvary shall sign the same. 7 ~ 30. Radon. Radon is a naturally occurnng 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. Additionally, information regarding radon and radon testing may be obtained from your county public health unit. Calvary agrees to allow, at the discretion and expense of the City, an investigation to test for levels of radon in the property. The written report is to be obtained within sixty (60) days from the Effective Date. If the City does not notify Calvary, in writing, of a failed test within this time period, the City waives all rights under this clause. If the test results indicated levels of radon gas unacceptable to the City in its reasonable discretion, the test shall be a failed test, and the City shall immediately notify Calvary of such condition in writing, providing to the City a copy of the written report received. 31. A~ency. Nothing in this Agreement shall be construed to constitute the creation of a partnership or joint venture between City and Calvary. 32. Further Assurance. In addition to the obligations required to be performed hereunder by the City and Calvary at Closing, both shall perform such other acts, and execute, acknowledge and deliver subsequent to closing such other 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 the City. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. -;/ FIRST BAPTIST CHURCH OF CLEARWATER INCORPORATED ( By:~_~ ~~~~ B. Cliff William, hairman of Deacons BY~_~ Br . Aungs Mayor-Commissioner CITY 0 CLEARWATER, FLORIDA .~-:rr By: M;cbiiel 1. Roberto w/LLIA/h r3 IIOR/Ve-7L I/VTt3IeINl. City Manager Approved as to form: Attest: ~~ n Carassas Assistant City Attorney . Q~OL 8 tvi STATE OF FLORIDA COUNTY OF PINELLAS BEFORE ME, the undersigned officer, duly authorized to take acknowledgments and administer oaths, personally appeared B. CLIFF WILLIAMS, as Chairman of Deacons of FIRST BAPTIST CHURCH OF CLEARWATER INC~RP~~g.8tJ~a CALVARY BAPTIST CHURCH, to me known or who produced ~ ~ :3. Jt.l~ as identification, and who did! did not take an oath, known to me to be the person described in and who executed the foregoing instrument, and acknowledged the execution thereof to be his free act and deed as such officer, and he acknowledged the execution thereof to be the free act and deed as said officer, for the uses and purposes therein expressed. Witness my hand and official seal at Clearwater, said county and state, this ~ day of July, 2000. ~i?yl(~VL~ Print Name t!..'1YJ"rlu'a. LP.15"J... f(J a.hdy My Commission Expires: ..'~' Cynthia Leigh Peabody *U'~ My Commission CC915268 ,,...,,~ Expires March 02, 2004 STATE OF FLORIDA COUNTY OF PINELLAS BEFORE ME, the undersigned officer, duly authorized to take acknowledgments and administer oaths, personally appeared :T. ~. :Joh .., So t"\ as the V J.~ N 0..'1 or ofthe CITY OF CLEARWATER, to me known or who produced as identification, and who did/did not take an oath, known to me to be the person described in and who executed the foregoing instrument, and acknowledged the execution thereof to be his/her free act and deed as such officer, and he/she acknowledged the execution thereof to be the free act and deed as said officer, for the uses and purposes therein expressed. :+t... Witness my hand and official seal at Clearwater, said county and state, this ~S day of July, 2000. Cau~~. ~ Notary Pubh Print Name .. I~TM. I'tllIlIC-8'l"ATterrl::e.... My CommIssIon ExpIres: CAROLYNLBRINK COMMISSION. CC834678 EXPIRES 512212003 BONDEDTHRUASA1~NOTARY1 H:\Data\Aty\TCN\DOCS\RE\CITY,CN3 9 fw EXHIBIT "A" CHESAPEAKE PARK PROPERTY Begin at the SE corner of the NW 1/4 of the NW 1/4 Section 16, Township 29 South, Range 16 East, and run thence N 0037'03" E, along the 40-acre line, 730.35 feet for P.O.B" thence continue N 0037'03" E. 95,0 feet, thence N 89027'56" W, 669.05 feet; thence S 0037'03" W, 495.21 feet; thence S 89027'56" E, 469.05 feet; thence N 0037'03" E, 400,21 feet; thence S 89027'56" E, 200.0 feet to a P.O.B., less the East 33.0 feet for road right-of- way ~ EXHIBIT "B" HAMPTON ROAD PROPERTY The North 466,76 feet of S. 516.77 feet of E. 466.76 feet of SE 1/4 SW 1/4 of Section 8, Township 29 South, Range 16 East situated in Pinellas County, Florida Jy RESOLUTION NO. 00-23 A RESOLUTION OF THE'CITY OF CLEARWATER, FLORIDA, SUBMITTING TO THE CITY ELECTORS A REFERENDUM QUESTION AUTHORIZING THE TRANSFER OF THAT REAL PROPERTY KNOWN AS CHESAPEAKE PARK, TO CALVARY BAPTIST CHURCH IN EXCHANGE FOR REAL PROPERTY OF COMPARABLE VALUE UNDER CHARTER SECTION 2.01 (d)5(v); PROVIDING FOR A REFERENDUM ELECTION; PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 2.01 (d)5(v) states in relevant part, "No municipally owned real property identified as recreation/open space on the city's comprehensive land use plan map on November 16, 1989 (or as may be amended thereafter), may be sold, donated, leased for a new use, or otherwise transferred without prior approval at referendum,..."; and WHEREAS, City is the owner of that real property identified as recreation/open space on the City's comprehensive land use plan, known as Chesapeake Park and located on the west side of McMullen Booth Road, approximately 445 feet south of Drew Street in Clearwater, Pinellas County, Florida (City Property); and WHEREAS, Calvary Baptist Church is the owner of that real property located on the north side of Drew Street at Hampton Road, Clearwater, Pinellas County, Florida (Calvary Property); and WHEREAS, It has been determined that the properties have a comparable appraised value based on that appraisal report prepared by Frost Appraisal and Market Consultants, Inc., dated February 7, 2000, which determined the value of the City property as $560,000 and the Calvary property as $580,000; now therefore, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: Section 1. It is hereby proposed that the City of Clearwater transfer that City Property known as Chesapeake Park, with a legal description of: Begin at the SE corner of the NW 1/4 of the NW 1/4 Section 16, Township 29 South, Range 16 East, and run thence N 0037'03" E, along the 40-acre line, 730,35 feet for P.O.B., thence continue N 0037'03" E. 95,0 feet, thence N 89027'56" W, 669.05 feet; thence S 0037'03" W, 495.21 feet; thence S 89027'56" E, 469.05 feet; thence N 0037'03" E, 400,21 feet; thence S 89027'56" E, 200,0 feet to a P.O.B., less the East 33.0 feet for road right-of-way Resolution No. 00-23 EXHIBIT "e" tJ to Calvary Baptist Church in exchange for that Calvary Property with a legal description of: The North 466.76 feet of S. 516.77 feet of E. 466.76 feet of SE 1/4 SW 1/4 of Section 8, Township 29 South, Range 16 East situated in Pinellas County, Florida. Such transfer requires prior approval at referendum under Charter Section 2.01 (d)5(v). Section 2. A referendum question is hereby called and will be held on July 11, 2000, at a special City election for the consideration of the voters of the City of Clearwater for the proposed question. The question to appear on the referendum ballot shall be as follows: TRANSFER OF MUNICIPAL REAL PROPERTY DESIGNATED RECREATION/OPEN SPACE ON THE LAND USE PLAN MAP Shall the City Commission be authorized to transfer municipal real property identified as recreation/open space on the land use plan map known as Chesapeake Park and located on the west side of McMullen Booth Road approximately 445 feet south of Drew Street to Calvary Baptist Church, in exchange for real property of comparable appraised value located on the north side of Drew Street at Hampton Road, in the City of Clearwater, Florida? YES NO For Against Section 3. The City Clerk is directed to notify the Pinellas County Supervisor of Elections that the referendum question provided above shall be considered at a special election of the Clearwater voters held July 11, 2000. Section 4. The City Clerk is directed to give notice of the election in the manner prescribed by Section 100.342, Florida Statutes, Section 5. This resolution shall take effect immediately upon adoption. 2 Resolution No. 00-23 ~ PASSED AND ADOPTED this 18th day of May ,2000. Isl Brian J. Aungst Brian J. Aungst Mayor-Commissioner Approved as to form: Attest: C?-~ John Carassas Assistant City Attorney Isl Cynthia E. Goudeau Cynthia E. Goudeau City Clerk 3 Resolution No. 00-23 ~