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Agenda 11/18/2008 Item #16G 4 Agenda Item No. 16G4 November 18, 2008 Page 1 of 13 EXECUTIVE SUMMARY Approve an Agreement for Sale and Purchase to provide for the purchase of 2.73 acres of land to relocate the vehicle and aircraft parking at the Marco Island Executive Airport at a cost not to exceed $260,000. OBJECTIVE: To obtain approval from the Board of County Commissioners for execution of the attached Agreement for Sale and Purchase (Agreement) between the Board of County Commissioners (Board) and WCI Communities, Inc (Seller). CONSIDERATIONS: On June 24, 2008, Agenda Item 16 G 8, the Board approved the acquisition of 2.73 acres of land, known as Tract Q, adjacent to the Marco Island Executive Airport (Airport), The Collier County Airport Authority (Authority) plans to construct a parallel taxiway at the Marco Island Executive Airport. The planned construction of the taxiway will decrease the current available aircraft parking and maneuvering area significantly, and by purchasing the 2.73 acre parcel the County would have the opportunity to develop an equal or greater amount of vehicle parking spaces and a greater maneuvering, safety and aircraft parking area. In September 2007, Seller's appraisal valued the parcel at $780,000 and in April 2008, Collier County Real Property Management staff appraised the parcel at $221,000. A purchase price of $250,000 for the land plus closing costs has been negotiated by the Airport Authority. Seller is presently the subject of a pending Chapter II Bankruptcy proceeding in the United States Bankruptcy Court For the District Of Delaware, Therefore, this Agreement is contingent upon the approval of the United States Bankruptcy Court For the District Of Delaware, as well as approval by Seller's Board of Directors. The Authority is aware that an amendment to the Marco Shores Planned Unit Development (PUD) may be required in order to proceed with the proposed parking area. On July 22, 2008, a pre-application meeting was attended by Airport Authority staff, their consultant Wayne Arnold, AICP, of Q. Grady Minor & Associates, Community Development and Environmental Services staff and County Attorney Office staff to discuss a PUD amendment or in the alternative, a parking exemption. A replat may also be required. FISCAL IMPACT: The total costs of acquisition shall not exceed $260,000 ($250,000 for property, and $10,000 for associated real estate transaction fees). The funds shall be withdrawn from the Airport Authority Grants Fund (496). GROWTH MANAGEMENT IMPACT: Therc is no gro'Mh management impact associated with the Board's approval of the AuthOlity's requests, and this project is in compliance with the Authority's Marco Island Master Plan. - LEGAL CONSIDERATIONS: The Agreement has been rcvicwed and approved by the County Attorney's Office. It is a policy decision as to whether the Board desires to approve the Agreement without having the zoning or any othcr dcvelopment approvals in place before acquisition. - JAB Agenda Item No. 16G4 r,ovember 18, 2008 Page 2 of 13 RECOMMENDATIONS: Staff is recommending that the Board of County Commissioners: I) Approves the attached Agreement and accepts the Warranty Deed once it has been received and approved by the County Attorney's Office; 2) Authorizes the Chairman to execute the Agreement and any and all other County Attorney's Office approved documents related to this transaction; 3) Authorizes the County Manager or his designee to prepare related vouchers and Warrants for payment; and 4) Directs the County Manager or his designee to proceed to acquire this parcel, to follow all appropriate closing procedures, to record the deed and any and all necessary documents to obtain clear title to this parcel, and to take all reasonable steps necessary to ensure performance under the Agreement. PREPARED BY: Cindy Erb, SR/W A, Senior Property Acquisition Specialist, Real Property Management/Facilities Management Department Page ] of ] Agenda Item No. 16G4 November 18, 2008 Page 3 of 13 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16G4 Meeting Date: Approve an Agreement for Sale and Purchase to provide for the purchase of 2.73 acres of land to relocate the vehicle and aircraft parking at the Marco Island Executive Airport at a cost not to exceed $260,000 11/18/200890000 AM Prepared By Cindy M. Erb Senior Property Acquisition Specialist Date Administrative Services Facilities Management 11131200812:01:20 PM Approved By Skip Camp, C.F.M. Facilities Management Director Date Administrative Services Facilities Management 11/3/200812:55 PM Approved By Theresa M. Cook Executive Director Date County Manager's Office Airport Authority 1113/20082:14 PM Approved By Jennifer A. Belpedio Assistant County Attorney Date County Attorney County Attorney Office 1113/20084:31 PM Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 11/4120081 :46 PM Approved By OMS Coordinator Applications Analyst Date Administrative Services Information Technology 11/4/20082:38 PM Approved By Susan Usher Senior ManagemenUBudget Analyst Date County Manager's Office Office of Management & Budget 11/5/2008 1 :28 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 1115/20087:38 PM file://C:\AgendaTest\Export\] 16-November%20 18,%202008\ 16.%20CONSENT%20AGE... 11/12/2008 Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 4 of 13 AGREEMENT FOR SALE AND PURCHASE THIS AGREEMENT is made and entered into by and between WCI COMMUNITIES, INC" a Delaware corporation, whose address is 24301 Walden Center Drive, Bonita Springs, FL 34134, (hereinafter referred to as "Seller"), and COLLIER COUNTY, a political subdivision of Ihe State of Florida, its successors and assigns, whose address is 3301 Tamiami Trail East, Naples, FL 34112, (hereinafter referred to as "Purchaser"). WITNESSETH WHEREAS, Seller is the owner of that certain parcel of real property (hereinafter referred to as "Property"), located In Coiller County, State of Florida, and being more particularly described in Exhibit "A", attached hereto and made a part hereof by reference. WHEREAS, Purchaser is desirous of purchasing the Property, subject to the conditions and other agreements hereinafter set forth, and Seiler is agreeabie to such sale and to such conditions and agreements. NOW, THEREFORE, and for and in consideration of the premises and the respective undertakings of the parties hereinafter set forth and Ihe sum of Ten Doilars ($10.00), the receipl and sufficiency of which is hereby acknowledged, it is agreed as follows: I. AGREEMENT 1.01 In consideration of the purchase price and upon Ihe terms and conditions hereinafter sel forth, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the Property "as is", described in Exhibit "A". II. PAYMENT OF PURCHASE PRICE 2.01 A. The purchase price (the "Purchase Price") for the Property shall be Two Hundred Fifty Thousand Dollars and No/100 Dollars ($250,000.00) (U.S. Currency) payable at time of closing. B. At time of the execution of said Agreement by both parties hereof Purchaser shall deposit wilh WCI Title as Escrow Agent a deposit of $25,000 (representing 10% of the Purchase Price of the Parcel). The deposit shall be held by Escrow Agent in an interest bearing account to be disbursed as provided herein. In the event that the sale of the Property as contemplated by this Agreement is closed in accordance with the terms and conditions hereof, the Escrow Agent shall apply the earnest money deposit and any interest thereon to the Purchase Price due on the date of closing. In Ihe event the Purchaser defaults under this Agreement or fails to ciose by the established closing date as set out in 3.01 for any reason other than a default by the Seller or a catastrophic event beyond the reasonabie control of the Purchaser, the Escrow Agent shall release the earnest money to the Seller as actual damages for the Purchaser's failure to close, and Ihe Parties shail have no further obilgation to one another under this Agreement. In the event the Seller falls to close within fifteen ("15) days after the estabiished ciosing date as set out above for any reason, to include any failure to deliver good and marketable tiUe to the real property. the Escrow Agent upon request of Purchaser shall release the earnest money to the Purchaser and the Parties shall have no further obligation to one another under this Agreement. III. CLOSING 3.01 The Closing (THE "CLOSING DATE", "DATE OF CLOSING", OR "CLOSING") of the transaction shall be held on or before one hundred and 1 Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 5 of 13 twenty (120) days following execution of this Agreement by the Purchaser, unless extended by mutual written agreement of the parties hereto. The Closing shall be held at the Collier County Attorney's Office, Administration Building, 3301 Tamiami Trail East, Naples, Florida. The procedure to be followed by the parties in connection with the Closing shall be as follows: 3.011 Seller shall convey a marketable title free of any liens, encumbrances, exceptions, or qualifications. Marketable title shall be determined according to applicable title standards adopted by the Florida Bar and in accordance with law. At the Closing, the Seller shall cause to be deiivered to the Purchaser the items specified herein and the following documents and inslruments duly executed and acknowledged, in recordable form: 3.0111 Special Warranty Deed ("Deed") in favor of Purchaser conveying 1IIIe to the Property, free and clear of all liens and encumbrances other than: (a) The lien for current taxes and assessments. (b) Such other easements, restrictions or conditions of record. 3.0112 Combined Purchaser-Seller closing statement. 3.0113 A "Gap," Tax Proralion, Owner's and Non-Foreign Affidavit," as required by Section 1445 of the Internal Revenue Code and as required by the title insurance underwriter in order to insure the "gap" and issue the policy contemplated by the title insurance commitment. 3.0114 A W.9 Form, "Request for Taxpayer Identification and Certification" as required by the Internal Revenue Service. 3.012 At the Closing, the Purchaser, or its assignee, shall cause to be delivered to the Seller the following: 3.0121 Purchaser shall pay the Purchase Price less the deposit and any prorations and adjustments by wire transfer into Seller's designated account with immediately available funds on the Closing Date. No funds shall be disbursed to Seller until the Title Company verifies that the state of the title to the Property has not changed adversely since the date of the last endorsement to the commitment, referenced in Section 4.011 thereto, and the Title Company is irrevocably committed to pay Ihe Purchase Price to Seller and to issue the Owner's title policy to Purchaser in accordance with the commitment immediately after the recording of the deed. 3.0122 Funds payable to the Seller representing the cash payment due at Closing in accordance with Article III hereof, shall be subject to adjustment for prorations as hereinafter set forth. 3.02 Each party shall be responsible for payment of its own attorney's fees. Seller, at its sole cost and expense, shall pay at Closing all documentary stamp taxes due relating to the recording of the Deed, in accordance with Chapter 201.01, Florida Statutes. The cost of recording any instruments necessary to clear Seller's title to the Property shall be paid by Purchaser. The cost of IhB Owner's Form B Title Policy, issued pursuant to the Commitment provided for In Section 4.011 below, shall be paid by Purchaser. The cost of the title commitment shall also be paid by Purchaser. 3.03 Purchaser shall pay for the cost of recording the Deed. Real Property taxes shall be prorated based on the current year's tax with due allowance made for maximum allowable discDunt, homestead and any other applicable exemptions , Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 6 of 13 and paid by Purchaser. If Closing occurs at a date which the current year's millage is not fixed, taxes will be prorated based upon such prior year's millage. IV. REQUIREMENTS AND CONDITIONS 4.01 Upon execution of this Agreement by both parties or at such other time as specified wilhln this Article, Purchaser and/or Seller, as the case may be, shall perform Ihe following within the times stated, which shall be conditions precedent to the Closing; 4.011 Within fifteen (15) days after the date hereof, Purchaser shall obtain as evidence of litie an AL T A Commitment for an Owne~s Tille Insurance Policy (AL TA Form 8-1970) covering the Property, together with hard copies of all exceptions shown thereon. Purchaser shall have thirty (30) days, following receipt of the title insurance commitment, to notify Seller in wrIting of any objection to title other than liens evidencing monetary obligations. if any, which obligations shall be paid at closing. If the title commitment contains exceptions that make the title unmarketable, Purchaser shall delivar 10 the Seller written nolice of its Intention to waive the applicable contingencies or to terminate this Agreement. 4012 If Purchaser shall fail to advise the Seller in writing of any such objections in Seller's title in the manner herein required by this Agreement, the litle shall be deemed acceptable. Upon notification of Purchaser's objection to title together with Seller's receipt of a iegible copy of the exception objected to, Seller shall have thirty (30) days to remedy any defects in order to convey good and marketable title, except for liens or monetary obligations which will be satisfied at Closing. Seller, at its sole expense, shall use reasonable efforts to make such title good and marketable. In the event Seller is unable to cure said objections within said time period, Purchaser, by providing written notice to Seller within seven (7) days after expiration of said thirty (30) day period, may accept title as it then is, waiving any objection; or Purchaser may terminate the Agreement. A failure by Purchaser to give such written notice of lermination within the time period provided herein shall be deemed an election by Purchaser to accept the exceptions to title as shown in the title commitment. 4.013 Purchaser shall have the option, at its own expense, to obtain a current survey of the Property prepared by a surveyor licensed by the State of Florida. No adjustments to the Purchase Price shall be made based upon any change to the total acreage referenced in Exhibit "A", if any. Seller agrees to furnish any existing surveys of the Property, if any, to Purchaser within thirty (30) days of execution of this Agreement. V. INSPECTION PERIOD 5.01 Purchaser shall have sixty (60) days from the date of this Agreement, ("Inspection Period"), to delermine through appropriate investigation that: 1. Soil tests and engineering studies indicate that the Property can be developed without any abnormal demucking, soil stabilization or foundations. 2. There are no abnormal drainage or environmental requirements 10 the development of Ihe Property 3. The Property is In compliance with all applicable State and Federal environmental laws and the Property is free from any pollution or contamination. 4. The Property can be utilized for its intended purpose. 5.02 If Purchaser is not satisfied, for any reason whatsoever, with the results of any investigation, Purchaser shaii deiiver io Seller prior to the expiration of the Inspection Period, written notice of its intention to waive the applicable contingencies or to terminate this Agreemeot. If Purchaser fails to notify the Seller 3 Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 7 of 13 in writing of its specific objections as provided herein within the Inspection Period, it shall be deemed that the Purchaser is satisfied with the results of its investigations and the contingencies of this Article VI shall be deemed waived. In the event Purchaser elects to terminate Ihls Agreement because of the right of inspection, Purchaser shall deliver to Seller copies of all engineering reports and environmental and soil testing results commissioned by Purchaser with respect to the Property. 5.03 Purchaser and its agenls, employees and servants shall, at their own risk and expense, have the right to go upon the Property for the purpose of surveying and conducting site analyses, soil borings and all other necessary investigation. Purchaser shall, in performing such lests, use due care and shall indemnify Seller on account of any loss or damages occasioned thereby and against any claim made against Seller as a result of Purchaser's entry. Seller shall be notified by Purchaser no tess than twenty four (24) hours prior to said inspeclion of the Property. Purchaser shall cause no encumbrances or liens to be filed against the Property due to and or arising out of Purchaser's due diligence activities and inspection of the Property. This provision shall survive a termination of the Agreement VI. INSPECTION 6.01 Seller acknowledges that the Purchaser, or its authorized agents, shall have the right to inspect the Property at any time prior to the Closing. ViI. POSSESSION 7.01 Purchaser shall be entitled to full possession of the Property at Closing. VIII. PRORATIONS 8.01 Ad valorem taxes next due and payable, after closing on the Property, shall be prorated at Closing based upon the gross amount of 2008 taxes, and shall be paid by Purchaser. IX. TERMINATION AND REMEDIES 9.01 If Seller shall have failed to perform any of the covenants and/or agreements contained herein which are to be performed by Seller, within ten (10) days of written notification of such failure, Purchaser may, at its option, terminate this Agreement by giving written notice of termination to Seller. Purchaser shall have the right to seek and enforce all rights and remedies available at law or in equity to a contract vendee, including the right to seek specific perfonnance of this Agreement. 9.02 If the Purchaser has not terminated this Agreement pursuant to any of the provisions authorizing such termination, and Purchaser fails to close the Iransaction contemplated hereby or otherwise fails to perform any of the terms, covenants and conditions of this Agreement as required on the part of Purchaser to be performed, provided Seller is not in default, then as Seller's sole remedy, Seller shall have the right to terminate and cancel this Agreement by giving written notice thereof to Purchaser, whereupon Ihe deposit of $25,000 shall be paid to Seller as liquidated damages which shall be Seller's sole and exclusive remedy, and neither party shali have any further liability or obligation to the other except as set forth in paragraph 13.01, (Real Estate Brokers), hereof. The parties acknowledge and agree that Seller's aclual damages in the event of Purchaser's default are uncertain in amount and difficult to ascertain, and that said amount of liquidated damages was reasonably determined by mutual agreement between the parties, and said sum was not intended to be a penalty in nature. 9.03 Should any litigation or other action be commenced between the parties concerning the Property or this Agreement, the party prevailing in such litigation or 4 Marco Airport Acquisilion - Parking Tax Identification Number: 59430600005 Aaenda Item No. 16G4 - November 18. 2008 Page 8 of 13 other action shall be entitled, in addition to such relief as may be granted, to a raasonable sum for lIs attorney's fees, paralegal charges and all fees and costs for appellate proceedings in such litigation or other action; which sum may be determined by the court or in a separate action brought for that purpose. 9.04 The parties acknowledge that the remedies described herein and in the other provisions of this Agreement provide mutually sallsfactory and sufficient remedies to each of the parties, and lake into account the peculiar risks and expenses of each of the parties. X. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES 10.01 Seller and Purchaser represent and warrant the following: 10.011 Purchaser has tha full right and authority to enter into and to execute this Agreement and to undertake all actions and to perform all tasks required of each hereunder. All necessary authorizations and approvals have been obtained authorizing Purchaser to execute and consummate the transaction contemplated hereby. At Closing, copies of such approvals shall be delivered to Seller, if necessary. 10.012 Seller is presently the subject of a pending Chapter 11 Bankruptcy proceeding in the United States Bankruplcy Court For the District Of Delaware. Seller has the full right and authority to enter into and to execute Ihis Agreement and to undertake all actions and to perform all tasks required of each hereunder subject to approval of Ihe United States Bankruptcy Court For Ihe District Of Delaware. At Closing, copies of such approvals shall be delivered to Purchaser, if necessary. 10.013 The warranties set forth in this Article shall be true on the date of this Agreement and as of the date of Closing. 10.014 Excepl for the Chapter 11 proceedings with the United States Bankruptcy Court in the District of Delaware, Seller represenls that il has no knowledge of any actions, suits, claims, proceedings, litigation or investigations pending or threatened against Seller, at law, equity or in arbitration before or by any federal, state. municipal or other governmental instrumentality that relate to this agreement or any other property that could, if continued, adversely affect Seller's ability to sell the Property to Purchaser according to the terms of this Agreement. 10.015 No party or person other than Purchaser has any right or option to acquire the Property or any portion thereof. 10.016 Until the date fixed for Closing, so long as this Agreement remains in force and effect, Seller shall not encumber or convey any portion of the Property or any rights therein, nor enter into any agreements granting any person or entity any rights with respect to the Property or any part thereof, without first obtaining the written consent of Purchaser to such conveyance, encumbrance, or agreement which consent may be withheld by Purchaser for any reason whatsoever. 10.017 DELETED 10.018 DELETED 10.19 DELETED 10.20 DELETED 10.021 Seller acknowledges and agrees that Purchaser is entering into this Agreement based upon Seller's representations stated above and on the 5 Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 9 of 13 understanding that Selier will not cause the zoning or physical condition of the Property to change from Its existing slate on the effective date of this Agreement up to and including the Date of Closing. Therefore, Seller agrees not to enter into any contracts or agreements pertaining to or affecting the Property and not to do any act or omit to perform any act which would change the zoning or physical condition of the Property or the governmental ordinances or laws governing same. Seller also agrees to notify Purchaser promptly of any change in the facts contained in the foregoing representations and of any notice or proposed change in the zoning, or any other action or notice, that may be proposed or promulgated by any third parties or any governmental authorities having jurisdiction of the development of the property which may restrict or change any other condition of the Property. 10.022 DELETED 10.023 "As Is" Condition of Property. The Property is being sold in an "as in" condition and "wIth all faults" as of the date of this Agreement and as of Closing. Except as may be expressly set forth in this Agreemenl, no representations or warranties have been made or are made and no responsibility has been or is assumed by Seller or by any partner, officer, person, firm, agent or representalive acting or purporting to act on behalf of Seller as to the condition or repair of the Property or the value, expense of operation, or income potential thereof or as to any other fact or condition which has or might affect the Property or the condition, repair, value expense of operation or income potential of the Property. Seller makes no representations or warranties, express or implied, as to the suitability or fitness of the Property for Purchaser's intended use of the Property or, except as may be specifically set forth herein, the environmental condition thereof. The parties agree that all understandings and agreements heretofore made between them or their respective agents or representatives are merged in this Agreement and the Exhibits hereto annexed, which alone fully and completely express Iheir agreement, and that this Agreement has been entered into after full investigation, or with the parties satisfied with the opportunity afforded for investigation, neither party relying upon any statement or representation by the other unless such statement or representation is speCifically em bodied in this Agreement or the Exhibits annexed hereto. To the extent that Seller has provided to Purchaser Information from any survey, title examination or policy, inspection, engineering or environmental reports or any other materials or information regarding the Property, Including reports concerning asbeslos or harmful or toxic substances, Seller makes no representations or warranties with respect to Ihe accuracy or completeness, methodology of preparation or otherwise concerning the contents of such reports. Purchaser acknowledges that Seller has requested Purchaser to inspect fully the Property and investigale all matters relevant thereto and to reiy solely upon the results of Purchaser's own inspections or other information obtained or otherwise available to Purchaser, rather than any information that may have been provided by Seller to Purchaser. The terms and provisions of this paragraph shall survive Closing hereunder. 10.024 Only to the extent allowed by Section 768.28, F.S., Purchaser releases and agrees to indemnify, defend, and hold Seller harmless from any present or future claims arising from or relating 10 the presence or alleged presence of asbestos or harmful or toxic suostances in, or, under or about the Property including, without limitation, any claims under or on account of (a) the Comprehensive Environmenlal Response, Compensation and Liability Act of 1 980, as the same may have been or may be amended from time to time, and similar state statutes, and any regulations promulgated thereunder, (b) any other federal, state or local law, ordinance, rule or regulation, now or hereafter in effect, that deals with or otherwise in any manner relates to, environmental mailers of any kind, or (c) this Agreement or the common law. The terms and proviSions of this paragraph shall survive Closing hereunder. 6 Marco Airport Acquisition - Parking Tax Identification Number. 59430600005 Agenda Item No. 16G4 November 18. 2008 Page 100f13 10.025 Any loss and/or damage 10 the Property between the date of this Agreement and the date of Closing shall be Seller's sole risk and expense. XI. NOTICES 11.01 Any notice, request, demand, instruction or other communication to be given to either party hereunder shall be In writing, senl by facsimile with automated confirmation of receipt, or by registered, or certified mail, return receipt requested, postage prepaid, addressed as follows: If to Purchaser: With a copy to: If to Seller: With a copy to: Real Property Management Department Ad minislration Building 3301 Tamlami Trail East Naples, Florida 34112 Telephone Number Telephone number: 239-252-8991 Fax number: 239-252-8876 Jennifer A. Beipedio Assistant County Attorney Office of the Counly Attorney Adminlslration Building 3301 Tamiami Trail East Naples, Florida 34112 Paul J. Erhardt WCI Communities, Inc., 24301 Walden Cenler Drive Bonita Springs, FL 34134 Teiephone number: 239-498.8200 Fax number: 239.949.0233 Kenneth Y. Gordon Associate General Counsel WCI Communities, Inc., 24301 Waiden Center Drive Bonita Springs, FL 34134 Teiephone number: 239-498-8680 Fax number: 239.390-3624 11.02 The addressees and numbers for Ihe purpose of this Article may be changed by ellher party by giving written notice of such change 10 the other party in the manner provided herein. For the purpose of changing such addresses or addressees only, unless and until such written notice is received, the last addressee and respective address stated herein shall be deemed to continue in effect for all purposes. XII. REAL ESTATE BROKERS 12.01 Purchaser and Seller represent and warrant to each olher thai they have not contacted a broker or salesman in connection with this transaction. Seller hereby agrees to indemnify and hold Purchaser harmless from and against any claims(s) of any other person(s) asserting a right to a commission in connection wilh this transaction by virtue of dealing wilh the Seller. XIII. MISCELLANEOUS 13.01 This Agreement may be executed in any manner of counterparts which together shall constitute the agreement of Ihe parties. 1302 This Agreement and the terms and provisions hereof shall be effective as of the date this Agreement is executed by both parties and shall inure to the benefit 7 Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 11 of 13 of and be binding upon the parties hereto and their respective heirs, executors, personal representatives, successors, successor trustee, and assignees whenever the context so requires or admits. 13.03 Any amendment to this Agreement shall not bind any of the parties hereof unless such amendment is in writing and executed and dated by Purchaser and Seller. Any amendment to this Agreement shall be binding upon Purchaser and Seller as soon as it has been executed by both parties. 13.04 Captions and section headings contained in this Agreement are for convenience and reference only; in no way do they define, describe, extend or limit the scope or intent of this Agreement or any provisions hereof. 13.05 All terms and words used in this Agreement, regardless of the number and gender in which used, shall be deemed to include any other gender or number as the context or the use thereof may require. 13.06 No waiver of any provision of this Agreement shall be effective unless it Is in writing signed by Ihe party against whom it is asserted, and any waiver of any provision of this Agreement shall be appiicable only to Ihe specific instance to which it is related and shall not be deemed to be a continuing or future waiver as to such provision or a waiver as to any other provision. 13.07 If any date specified in this Agreement falls on a Saturday, Sunday or le9al holiday, then the date to which such reference is made shall be extended to the next succeeding business day. 13.08 Seller is aware of and understands that the "offer" to purchase represented by this Agreement is subject 10 acceptance and approval by the Board of County Commissioners of Collier County, Florida. 13.09 If the Seller hoids the Property in the form of a partnership, limited partnership, corporation, trust or any form of representative capacity whatsoever for others, Seller shall make a written publiC disclosure, according 10 Chapter 286, Florida Statutes, under oath, of the name and address of every person having a beneficial interesl in the Property before Property held in such capacity is conveyed to Collier County. (If the corporation is registered with the Federal Securities Exchange Commission or registered pursuant to Chapter 517, Florida Statutes, whose stock is for sale to the general public, it is hereby exempt from the provisions of Chapter 286, Florida Statutes.) 13.10 This Agreement is governed and construed in accordance with the laws of the Stale of Florida. 13.11. In connection with Purchaser's development and or use of the Property, Purchaser agrees that it shall install a landscape buffer that meets the minimum requirements of the Land Development Code. Purchaser agrees 10 install lighting that meets the minimum requirements of the Land Development Code and the Federal Aviation Administration design standards. This provision shall survive the Closing and conveyance of the Deed. XIV. ENTIRE AGREEMENT 14.01 This Agreement and the exhibits attached hereto contain the entire agreement between the parties, and no promise, representation, warranty or covenant not included in this Agreement or any such referenced agreements has been or is being relied upon by either party. No modificalion or amendment of this Agreement shall be of any force or effect unless made in writing and executed and dated by both Purchaser and Seller. Time is of the essence of this Agreement. 8 Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 12 of 13 XV. UNITED STATES BANKRUPTCY COURT APPROVAL CONTINGENCY 15.01 Seller is presently the subject of a pending Chapter 11 Bankruptcy proceeding in the United States Bankruptcy Court For the District of Delaware. Seller has Ihe full right and authority to enter into and to execute Ihis Agreement and to undertake all actions and to perform all tasks required of each hereunder contingent upon and subject to approval of the United States Bankruptcy Court For the District Of Delaware. The Bankru ptcy Court shall have entered the Sale Order pursuant to the Bankruptcy Code (title 11 of the United States Bankruptcy Code, 11 U.S.C. Sections 101. et seq.) in the form reasonably acceptabie to Seiler and Purchaser approving the transaction contemplated hereby and the terms and conditions of the Agreement This Agreement is contingent upon Ihe approval of the United States Bankruptcy Court For the District Of Delaware, as well as approval by Seller's Board of Directors. At Closing, copies of such approvals shall be delivered to Purchaser, if necessary. IN WITNESS WHEREOF, the parties hereto have signed below. Dated Project/Acquisition Approved by BCC: AS TO PURCHASER: DATED: ATIEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: TOM HENNING, Chairman , Deputy Clerk AS TO SELLER: DATED: '.;J v 2_1-'~ WITNESSES: .f2y ~.L... (Signature) f?'v...-"'-- c..:.~ A-f'~Ab:r- (Printed Name) WCI COMMUNITIES, INC., a Delaware corporation ~,.,u~ X . ~ at 'i/1~ De.rd'?l:'.. L L-GlVtr~ (Printed Name) -/ - ----.---~ B~ r: ---=- Timothy Oak, Vice President -@ (Signature) Approved as to form and legal sufficiency: ~~\J~~--, Jenn r A Belpedio\~ Assistant County Attorney 9 Marco Airport Acquisition - Parking Tax Identification Number: 59430600005 Agenda Item No. 16G4 November 18, 2008 Page 13 of 13 Exhibit "A" Tract Q, MARCO SHORES UNIT ONE, according 10 the plat thereof as recorded in Plat Book 14, Pages 33-38, inclusive, of the Public Records of Collier County, Florida, LESS AND EXCEPT THAT CERTAIN PROPERTY DESCRIBED BELOW: Beginning a the northeast corner of said Tract "Q-; Thence along the east line of said Tract "Q" South 11 "59'55" East 332.93 feet to a point on the north right of way iine of Mainsail Drive according to the plat of said Marco Shores Unit One; Thence along said right of way line South 77"54'19" Wesl 131.94 feet; Thence leaving said right of way line North 12"00'24" West 307.62 feet to a point on the boundary of said Tract "Q": Thence along said boundary in the following two (2) described courses, L North 24"45'16" East 7.32 feel; 2. North 69"14'17" Easl 129.11 feet to the Point of Beginning of the parcel herein described; Bearings are based on the east line of said Tract "Q" being South 11 "59'55" East. 10