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HomeMy WebLinkAbout2009-274 ORIGINAL 10ww . 01 t2. z. t AGREEMENT TO PURCHASE AND SELL REAL ESTATE Ado 7 -27 BETWEEN INDIAN RIVER COUNTY AND PATRICIA A . MAYS as Trustee of Patricia A . Mays Trust u /a/d March 31 , 2005 THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ( "Agreement") is made and entered into as of the 20th day of October , 2009 , by and between Indian River County , a political subdivision of the State of Florida ( "the County" ) , and PATRICIA A . MAYS as Trustee of Patricia A . Mays Trust u/a/d March 31 , 2005 ( " Seller") , who agree as follows : WHEREAS , Patricia A . Mays as Trustee owns property located south of 85th Street , Vero Beach , Florida . A legal description of the property is attached to this agreement as Exhibit "A" and incorporated by reference herein ; and WHEREAS , the County , is scheduled to expand 85th Street ( CR510 ) in the future and the road expansion will impact and affect Patricia A . May ' s property ; and WHEREAS , in order for the County to proceed with its road expansion plans , the County needs to purchase property to be used as right-of-way from landowners adjacent to 85th Street ; and WHEREAS , the County has contacted Patricia A . Mays and has offered to purchase an approximate total of 4 . 77 acres of property from the Patricia A . Mays Trust to be used as right-of-way as described on Exhibit "A" (the Property) ; and WHEREAS , the County is prepared to take the Property by using its power of eminent domain ; and WHEREAS , Patricia A . Mays as Trustee of the Patricia A . Mays Trust u/a/d March 31 , 2005 and the County wish to avoid the risk , time and expense of litigation by entering into this agreement for sale and purchase of the Property ; and this Agreement is entered into by Patricia A . Mays as Trustee under the threat of condemnation . NOW, THEREFORE , in consideration of the mutual terms , conditions , promises , covenants and premises hereinafter , the COUNTY and SELLER agree as follows : 1 . Recitals . The above recitals are affirmed as being true and correct and are incorporated herein 2 . Agreement to Purchase and Sell . The Seller hereby agrees to sell to the County , and the County hereby agrees to purchase from Seller, upon the terms and conditions set forth in this Agreement that certain parcel of real property located at 8386 75th Court , Vero Beach , Florida and more specifically described in the legal description attached as Exhibit 1 ORIGINAL "A " , containing approximately 4 . 77 acres , and all improvements thereon , together with all easements , rights and uses now or hereafter belonging thereto ( collectively , the " Property" ) . 2 . 1 Purchase Price , Effective Date . The purchase price ( " Purchase Price ") for the Property shall be $ 265 , 212 (Two Hundred Sixty- Five Thousand Two Hundred Twelve Dollars ) . Provided that the County has not delivered written notice to Seller of title defects as provided in paragraph 3 . 1 within fifteen ( 15 ) days following the effective date of this Agreement , County shall pay to Seller the amount of $ 25 , 000 ; and the balance of the Purchase Price shall be paid on the Closing Date . The Effective Date of this Agreement shall be the date upon which the County shall have approved the execution of this Agreement , either by approval by the Indian River County Board of County Commissioners at a formal meeting of such Board or by the County Administrator pursuant to his delegated authority . 3 . Title . Seller shall convey marketable title to the Property by warranty deed free of claims , liens , easements and encumbrances of record or known to Seller ; but subject to property taxes for the year of Closing and covenants , restrictions and public utility easements of record provided ( a ) there exists at Closing no violation of any of the foregoing ; and ( b ) none of the foregoing prevents County' s intended use and development of the Property ( " Permitted Exceptions ") . 3 . 1 County may order an Ownership and Encumbrance Report or Title Insurance Commitment with respect to the Property . County shall within fifteen ( 15 ) days following the Effective Date of this Agreement deliver written notice to Seller of title defects . Title shall be deemed acceptable to County if (a ) County fails to deliver notice of defects within the time specified , or ( b ) County delivers notice and Seller cures the defects within thirty ( 30 ) days from receipt of notice from County of title defects (" Curative Period ") . Seller shall use best efforts to cure the defects within the Curative Period and if the title defects are not cured within the Curative Period , County shall have thirty ( 30) days from the end of the Curative Period to elect , by written notice to Seller , to : ( i ) to terminate this Agreement , whereupon shall be of no further force and effect , or ( ii ) extend the Curative Period for up to an additional 90 days ; or ( iii ) accept title subject to existing defects and proceed to closing . 4 . Representations of the Seller . 4 . 1 Seller is indefeasibly seized of marketable , fee simple title to the Property , and is the sole owner of and has good right , title , and authority to convey and transfer the Property which is the subject matter of this Agreement , free and clear of all liens and encumbrances . Seller shall provide the County with a signed and sealed survey of the Property prior to closing . 4 . 2 From and after the Effective Date of this Agreement , Seller shall take no action which would impair or otherwise affect title to any portion of the Property , and shall record no documents in the Public Records which would affect title to the Property , without the prior written consent of the County . 2 ORIGINAL 4 . 3 There are no existing or pending special assessments affecting the Property , which are or may be assessed by any governmental authority , water or sewer authority , school district , drainage district or any other special taxing district . 5 . Default . 5 . 1 In the event the County shall fail to perform any of its obligations hereunder , after approval of the Board of County Commissioners , the Seller shall , at its sole option , be entitled to : ( i ) terminate this Agreement by written notice delivered to the County at or prior to the Closing Date and declare the deposit forfeited by the County ; thereupon neither the Seller nor any other person or party shall have any claim for specific performance , damages , or otherwise against the County ; or ( ii ) waive the County' s default and proceed to Closing . 5 . 2 In the event the Seller shall fail to perform any of its obligations hereunder , the County shall , at its sole option , be entitled to : ( i ) terminate this Agreement by written notice delivered to the Seller at or prior to the Closing Date and thereupon neither the County nor any other person or party shall have any claim for specific performance , damages or otherwise against the Seller ; or ( ii ) obtain specific performance of the terms and conditions hereof; or ( iii ) waive the Seller' s default and proceed to Closing : 6 . Closing . 6 . 1 The closing of the transaction contemplated herein ( " Closing " and " Closing Date " ) shall take place within 45 days following the execution of the contract by the Chairman of the Board of County Commissioners or Seller may elect to extend the closing until no later than January 30 , 2010 . The parties agree that the Closing shall be as follows : ( a ) The Seller shall execute and deliver to the County a warranty deed conveying marketable title to the Property , free and clear of all liens and encumbrances and in the condition required by paragraph 3 . ( b ) The Seller shall have removed all of its personal property and equipment from the Property and Seller shall deliver possession of the Property to County vacant and in the same or better condition that existed at the Effective Date hereof. ( c) If Seller is obligated to discharge any encumbrances at or prior to Closing and fails to do so , County may use a portion of Purchase Price funds to satisfy the encumbrances . ( d ) If the Seller is a non - resident alien or foreign entity , Seller shall deliver to the County an affidavit , in a form acceptable to the County , certifying that the Seller and any interest holders are not subject to tax under the Foreign Investment and Real Property Tax Act of 1980 . (e) The Seller and the County shall each deliver to the other such other documents or instruments as may reasonably be required to close this transaction . 3 ORIGINAL 6 . 2 Taxes . All taxes and special assessments which are a lien upon the property on or prior to the Closing Date (except current taxes which are not yet due and payable) shall be paid by the Seller . 7 . Closing Costs ; Expenses . County shall be responsible for preparation of all Closing documents . 7 . 1 County shall pay the following expenses at Closing : 741 . 1 The cost of recording the warranty deed and any release or satisfaction obtained by Seller pursuant to this Agreement . 7 . 1 . 2 Documentary Stamps required to be affixed to the warranty deed . 7 . 1 . 3 All costs and premiums for the owner's marketability title insurance commitment and policy , if any . 7 . 2 Seller shall pay the following expenses at or prior to Closing : 7 . 2 . 1 All costs necessary to cure title defect(s ) or encumbrances , other than the Permitted Exceptions , and to satisfy or release of record all existing mortgages , liens or encumbrances upon the Property . 8 . Miscellaneous . 8 . 1 Controlling Law . This Agreement shall be construed and enforced in accordance with the laws of the State of Florida . Venue shall be in Indian River County for all state court matters , and in the Southern District of Florida for all federal court matters . 8 . 2 Condemnation . In the event that all or any part of the Property shall be acquired or condemned for any public or quasi - public use or purpose , or if any acquisition or condemnation proceedings shall be threatened or begun prior to the Closing of this transaction , County shall have the option to either terminate this Agreement , and the obligations of all parties hereunder shall cease , or to proceed , subject to all other terms , covenants , conditions , representations and warranties of this Agreement , to the Closing of the transaction contemplated hereby and receive title to the Property ; receiving , however , any and all damages , awards or other compensation arising from or attributable to such acquisition or condemnation proceedings . County shall have the right to participate in any such proceedings . 8 . 3 Entire Agreement . This Agreement constitutes the entire agreement between the parties with respect to this transaction and supersedes all prior agreements , written or oral , between the Seller and the County relating to the subject matter hereof. Any modification or amendment to this Agreement shall be effective only if in writing and executed by each of the parties . 4 ORIGINAL 8 . 4 Assignment and Binding Effect . Neither County nor Seller may assign its rights and obligations under this Agreement without the prior written consent of the other party . The terms hereof shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns . 8 . 5 Notices . Any notice shall be deemed duly served if personally served or if mailed by certified mail , return receipt requested , or if sent via "overnight" courier service or facsimile transmission , as follows : If to Seller : Patricia A . Mays , Trustee Patricia A . Mays Trust u/a/d March 31 , 2005 838675 th Court Vero Beach , FL 32967 If to County : Indian River County 1801 27th Street Vero Beach , FL . 32960 Attn : Land Acquisition/Louise Gates Either party may change the information above by giving written notice of such change as provided in this paragraph . 8 . 6 Survival and Benefit . Except as otherwise expressly provided herein , each agreement , representation or warranty made in this Agreement by or on behalf of either party , or in any instruments delivered pursuant hereto or in connection herewith , shall survive the Closing Date and the consummation of the transaction provided for herein . The covenants , agreements and undertakings of each of the parties hereto are made solely for the benefit of, and may be relied on only by the other party hereto , its successors and assigns , and are not made for the benefit of, nor may they be relied upon , by any other person whatsoever . 8 . 7 Attorney's Fees and Costs . In any claim or controversy arising out of or relating to this Agreement , the prevailing party shall be entitled to recover from the non - prevailing party reasonable attorney' s fees , costs and expenses . 8 . 8 . Counterparts . This Agreement may be executed in two or more counterparts , each one of which shall constitute an original . 8 . 9 . County Approval Required : This Agreement is subject to approval by the Indian River County as set forth in paragraph 2 . 8 . 10 Beneficial Interest Disclosure : In the event Seller is a partnership , limited partnership , corporation , trust , or any form of representative capacity whatsoever for others , Seller shall provide a fully completed , executed , and sworn beneficial interest disclosure statement in the form attached to this Agreement as an exhibit that complies with all of the provisions of Florida Statutes Section 286 . 23 prior to approval of this 5 ORIGINAL Agreement by the County . However , pursuant to Florida Statutes Section 286 . 23 ( 3 ) (a ) , the beneficial interest in any entity registered with the Federal Securities and Exchange Commission , or registered pursuant to Chapter 517 , Florida Statutes , whose interest is for sale to the general public , is exempt from disclosure ; and where the Seller is a non - public entity , that Seller is not required to disclose persons or entities holding less than five ( 5 % ) percent of the beneficial interest in Seller . 8 . 11 Relocation of Personal Property : Sellers shall be responsible for contracting to have personal property with- in proposed right-of-way relocated . Any personal property remaining within the proposed right-of-way at commencement of project bid , shall be deemed County property . 8 . 12 The County agrees to pay a reasonable attorney ' s fee to review the sale documents and provide legal advice as to Seller' s best interest in this endeavor . 8 . 12 " Seller acknowledges receipt of the " Notice to Owner, " return receipt signed for on 10/24/2008 and understands his/her rights granted under Florida Law C4ha 3 and 74 . " Initials IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the date first set forth above . INDIAN RIVER COUNTY , FLORIDA 4Pricia A . Mays Trust u/a/d March 31 , 2005 B06YD OF COUNTY COMMISSIONERS 0 10 l Wesley S . Davis , Chairman Patricia A . Mays , Trustee Date Approved by BCC october 2o , 2oo9 ATTEST : Jeffrey K . Barton , Clerk of Circuit Court Deputy/Clerk Approved : f seph AlBaird , County Administrator l Approved as o For ega fficiency : 000tL ounty Attorney -As 6 ORIGINAL. EXHIBIT " A " THE NORTHEAST Y OF THE NORTHEAST % OF THE NORTHEAST % OF SECTION 36 , TOWNSHIP 31 SOUTH , RANGE 38 EAST , SAID LANDS LYING IN INDIAN RIVER COUNTY , FLORIDA . LESS THE NORTH 383 . 76 FEET OF THE SAID NORTHEAST Y4 OF THE NORTHEAST '/ OF THE NORTHEAST '/4 OF SECTION 36 , TOWNSHIP 31 SOUTH , RANGE 38 EAST ; TOGETHER WITH THE EAST 60 FEET OF THE SOUTH 343 . 76 FEET OF THE NORTH 383 . 76 FEET OF THE SAID NORTHEAST '/4 OF THE NORTH EAST % OF THE NORTHEAST '/ OF SECTION 36 ; CONTAINING 207 , 714 . 5 SQ , FT . OR 4 . 77 ACRES , MORE OR LESS . 7