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HomeMy WebLinkAbout2009-240 ©bq -- ;2 AGREEMENT TO PURCHASE AND SELL REAL ESTATE BETWEEN KEN AND LAURA MCKELLAR AND INDIAN RIVER COUNTY THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ( "Agreement" ) is made and entered into as of the 15th day of September , 2009 , b and between Indian River County , a political subdivision of the State of Florida 1801 27 Street , Vero Beach , FL 32960 ( "the County") , and Ken and Laura McKellar , as husband and wife , 125 Ocean Way , Vero Beach , Florida 32963 ( "the Sellers " ) , who agree as follows . WHEREAS , Ken and Laura McKellar own property north of 49th Street along the east side of 31St Avenue ; and WHEREAS , the County purchased 34 . 4 acres of property at the corner of 49th Street and 31St Avenue from various land owners in order to assemble the land necessary for a future re - use wetlands park ; and WHEREAS , 31St Avenue is a two lane paved road that lies just east of the Lateral H Canal . The canal is owned and maintained by the Indian River Farms Water Control District ; and WHEREAS , surveys performed by the County Surveyor staff show that 31St Avenue lies partly on the Farms canal right-of-way and partly on property owned by the McKellars and WHEREAS , 31St Avenue is used by dump trucks and construction vehicles visiting the cement and asphalt plants to the north of the County property and the County ' s contractor will be relying heavily on 31St Avenue for ingress/egress for the construction of 53rd Street and the bridge over the canal ; and WHEREAS , the McKellars have offered to sell and the County has offered to buy the portion of the McKellar property that makes up 31St Avenue consisting of 0 . 609 acres . A sketch and legal description of the property is attached to this agreement as Exhibit "A" and incorporated by reference herein ; and WHEREAS , the 0 . 609 acres of the property is zoned RS -6 , single family residential up to six units per acre ; and WHEREAS , the McKellars 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 , NOW , THEREFORE , in consideration of the mutual terms , conditions , promises , covenants and premises hereinafter , the County and the Seller agree as follows : 1 ATTACHMENT 3 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 , upon the terms and conditions set forth in this Agreement , that certain parcel of real property located along 31 st Avenue more specifically described in the sketch and legal description attached as Exhibit "A" , containing approximately 0 . 609 acres , and all improvements thereon , together with all easements , rights and uses now or hereafter belonging thereto ( collectively , the " Property" ) . 3 . Purchase Price , Effective Date . The purchase price ( " Purchase Price " ) for the Property shall be thirty four thousand two hundred dollars ( $ 34 , 200 . 00 ) . The County shall pay and Seller shall accept the Purchase and Sale price of the Property . 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 . 4 . Title . Seller shall convey marketable title to the Property by warranty deed free of claims , liens , easements and encumbrances of record or known to Sellers ; 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 " ) . 4 . 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 . 5 . Representations of the Seller . 5 . 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 . 5 . 2 From and after the Effective Date of this Agreement , Seller shall take no action 2 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 . 5 . 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 . 6 . Default , 6 . 1 In the event the County shall fail to perform any of its obligations hereunder , 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 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 . 6 . 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 : 7 . Closing . 7 . 1 The closing of the transaction contemplated herein ( " Closing " and " Closing Date " ) shall take place within 20 days following the approval of this Agreement by the Board of County Commissioners . 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 3 instruments as may reasonably be required to Close this transaction . 8 . 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 . 9 . Closing Costs ; Expenses . County shall be responsible for preparation of all Closing documents . 9 . 1 County shall pay the following expenses at Closing : 9 . 1 . 1 The cost of recording the warranty deed and any release or satisfaction obtained by Seller pursuant to this Agreement . 9 . 1 . 2 All costs and premiums for the owner' s marketability title insurance commitment and policy , if any . 9 . 2 Seller shall pay the following expenses at or prior to Closing : 9 . 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 . 9 . 2 . 2 Documentary Stamps required to be affixed to the warranty deed . 10 . Miscellaneous , 10 . 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 . 10 . 2 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 . 10 . 3 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 . 10A 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 : 4 If to Seller : Ken and Laura McKellar 125 Ocean Way Vero Beach , Florida 32963 If to County . Indian River County 1801 27th Street Vero Beach , FL , 32960 Attn : Public Works Director Either party may change the information above by giving written notice of such change as provided in this paragraph . 10 . 5 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 . 10 . 6 Attorney ' s Fees and Costs . In any claim or controversy arising out of or relating to this Agreement , each party shall bear its own attorney' s fees , costs , and expenses . 10 . 7 Counterparts . This Agreement may be executed in two or more counterparts , each one of which shall constitute an original . 10 . 8 County Approval Required : This Agreement is subject to approval by the Indian River County as set forth in paragraph 2 . 10 . 9 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 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 . 5 IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the date first set forth above . SELLER : INDIAN RIVER COUNTY ,; FLORIDA BOARDCOUNTY COMMISSIONERS By : Ire 44� By : Ken McKellar WesleyDavis , Chairman m Date Signed : r Date Signed : ; P �ar 15 , 2009 By : Laura McKellar Date Signed : Approved as to form Attest : J . K . Barton , Clerk and le al sufj1 ficien / By Kj � William K . DeBraal Deputy erk Deputy County Attorney Date Signed : September 15 , 2009 6 LEGAL DESCRIPTION , PARCEL 3 ( PROPOSED RIGHT OF WAY FOR 31st AVENUE ) A PORTION OF THOSE LANDS DESCRIBED IN OFFICIAL RECORDS BOOK 2260 , PAGE 2282 , OF THE PUBLIC RECORDS OF INDIAN RIVER COUNTY, FLORIDA; SAID LANDS LYING IN THE SOUTHWEST ONE — QUARTER , OF THE NORTHEAST ONE — QUARTER OF SECTION 22 , TOWNSHIP 32 SOUTH , RANGE 39 EAST , FOR ` THE PURPOSE OF ACQUIRING RIGHT OF WAY FOR 31st AVENUE AS SHOWN ON THE UNRECORDED PLAT OF LINDSEY MANOR UNIT 1 ; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS : COMMENCE AT THE SOUTHEAST CORNER , OF THE SOUTHWEST ONE — QUARTER , OF THE NORTHEAST ONE — QUARTER OF SAID SECTION 22 ; THENCE RUN NOD' 21 ' 54 "W , ALONG THE EAST LINE OF THE SOUTHWEST ONE — QUARTER , OF THE NORTHEAST ONE — QUARTER , OF SAID SECTION 22 , A DISTANCE OF 25 . 00 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF 49th STREET ( RIGHT OF WAY VARIES ) ; THENCE CONTINUE N00' 21 ' 549?W , ALONG SAID EAST LINE AND SAID NORTH RIGHT OF WAY LINE PER OFFICIAL RECORDS BOOK 733 , PAGE 842 , A DISTANCE OF 35 . 00 FEET; THENCE DEPARTING SAID NORTH RIGHT OF WAY LINE , CONTINUE ALONG SAID EAST LINE N00' 21 ' 54 "W A DISTANCE OF 205 . 00 FEET TO A POINT ON THE SOUTH LINE OF THOSE LANDS DESCRIBED AS PARCEL 2 , PER OFFICIAL RECORDS BOOK 2260 , PAGE 2284 ; THENCE DEPARTING SAID EAST LINE RUN N89 ' 59 ' 32 "W , ALONG SAID SOUTH LINE , A DISTANCE OF 65 . 87 FEET TO THE SOUTHWEST CORNER OF THOSE LANDS OF THOSE LANDS PER OFFICIAL RECORDS BOOK 2176 , PAGE 1001 , SAID POINT ALSO LYING ON THE EASTERLY LINE OF THE PROPOSED RIGHT OF WAY OF 31st AVENUE AND BEING THE POINT OF BEGINNING ; THENCE CONTINUE N89' 59 ' 32 "W A DISTANCE OF 25 . 12 FEET TO A POINT ON EASTERLY RIGHT OF WAY LINE OF THE LATERAL ' H ' CANAL (A 160 FOOT RIGHT OF WAY) ; THENCE RUN N05' 35 ' 37 "W , ALONG SAID EASTERLY RIGHT OF WAY LINE , A DISTANCE OF 1061 . 73 FEET TO A POINT ON THE NORTH LINE OF THE SOUTHWEST ONE — QUARTER , OF THE NORTHEAST ONE — QUARTER OF SAID SECTION 22 ; THENCE DEPARTING SAID EASTERLY RIGHT OF WAY LINE RUN S89' 59 ' 41 " E , ALONG THE NORTH LINE OF THE SOUTHWEST ONE — QUARTER , OF THE NORTHEAST ONE — QUARTER OF SAID SECTION 22 , A DISTANCE OF 25 . 12 FEET TO NORTHWEST CORNER OF THOSE LANDS PER OFFICIAL RECORDS BOOK 2176 , PAGE 1001 ; THENCE DEPARTING SAID NORTH QUARTER — QUARTER SECTION LINE RUN S05035137 " E , ALONG A LINE 25 FEET EAST OF AND PARALLEL WITH SAID EASTERLY RIGHT OF WAY LINE , A DISTANCE OF 1061 . 68 FEET TO THE POINT OF BEGINNING . LEGEND & ABBREVIATI ❑ NS CONTAINING : 0 . 61 ACRES OR 26 , 543 SQUARE FEET , MORE OR LESS . ADDL = ADDITIONAL P , O B = POINT OF BEGINNING - COR = CORNER P , ElC , = POINT OF COMMENCEMENT ESMT = EASEMENT R / W = RIGHT OF WAY O . R . B . = OFFICIAL RECORDS BOOK SEC = SECTION NOTE P . LD , — PROPERTYPARCEL APPRAISER ' S PER MAP 1 , THIS SKETCH OF DESCRIPTION IS NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF THE FLORIDA REGISTER SURVEYOR AND MAPPER NAMED HEREON , 6 , THIS SKETCH OF DESCRIPTION WAS PREPARED WITH THE BENEFIT OF A BOUNDARY SURVEY FOR THE INDIAN RIVER COUNTY UTILITIES DEPARTMENT , PREPARED BY MASTELLER , MOILER & 2 . THIS SKETCH OF DESCRIPTION MEETS OR EXCEEDS ALL APPLICABLE REQUIREMENTS OF THE REED INCORPORATED , ON THE DATE OF AUGUST 30 , 2005 AND THE UNRECORDED PLAT FOR MINIMUM TECHNICAL STANDARDS AS ESTABLISHED IN CHAPTER 61517 - 6 , FLORIDA LINDSEY MANOR UNIT 1 , PREPARED BY R . D . CARTER ENGINEERING FIRM INCORPORATED , IN THE ADMINISTRATIVE CODE YEAR OF 1963 3 , THIS SKETCH AND DESCRIPTION AND ADJOINING PARCELS MAY BE SUBJECT TO EASEMENTS , 7 , PARCEL 2 AS SHOWN HEREON WAS PREVIOUSLY OWNED BY THE INDIAN RIVER COUNTY RESTRICTIONS , RESERVATIONS , ❑ R RIGHT ❑ F WAYS NOT SHOWN AND MAY BE FOUND IN THE UTILITIES DEPARTMENT , THIS PARCEL WAS EXCHANGED FOR PARCEL 1 SHOWN HEREON , PER PUBLIC RECORDS PER OFFICIAL RECORDS BOOK 2260 , PAGE 2287 , PARCEL 4 SHOWN HEREON IS STILL OWNED BY THE INDIAN RIVER COUNTY UTILITIES DEPARTMENT AND IS A PORTION OF THOSE LANDS 4 , THIS SKETCH AND DESCRIPTION DOES NOT REPRESENT A FIELD SURVEY . EXISTING PROPERTY DESCRIBED IN OFFICIAL RECORDS BOOK 2176 , PAGE 1001 . CONDITIONS OR FEATURES PRE NOT SHOWN , 8 , THE PROPERTY ADJOINING THE EAST RIGHT OF WAY LINE OF THE PROPOSED Gist AVENUE 5 , THE BEARINGS SH7WN HEREON ARE BASED UPON THE EASTERLY RIGHT OF WAY LINE OF IS OWNED BY THE INDIAN RIVER COUNTY UTILITIES DEPARTMENT . THIS PROPERTY WAS THE INDT �'aN RIVER FARMS 0A. ER CONTROL DISTRICT ' S LATERAL ' H ' CANAL , LYING IN THE COMPRISED OF 21 PARCELS PREVIOUSLY OWNED BY 14 INDIVIDUAL OWNERS . INDIAN RIVER SO 'UTHWLST DD'NE — QUARTER OF T ', E NORTHEAST ONE — QUARTER OF SECTION 22 , TOWNSHIP COUNTY PURCHASED ALL 21 PARCELS FROM EACH OWNER BETWEEN THE YEARS OF 2005 AND 32 SOUTH , RAfJGC 3 EA $ T ; SAID LINE HAVING A GRID BEARING OF N05035 ' 37 " W . 2008 . THE CALLS FOR PROPERTY CORNERS IN THIS DESCRIPTION REFER TO THE INDIAN RIVER COUNTY UTILITIES DEPARTMENT PROPERTY , - CERTIFICATION - SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE - NOT COMPLETE WITH ❑ UT SHEET 2 OF 21 in THIS IS NOT A BOUNDARY SURVEY AVID M , SIL ❑ N R & M , DATE SKETCH TO ACCOMPANY LEGAL DESCRIPTI ❑ N FLORIDA REGISTRATION No , 6139 INDIAN RIVER ASSISTANT COUNTY SURVEYOR PREPARED FOR INDIAN RIVER COUNTY ENGINEERING DEPARTMENT NDIAN RIVER COUNTY ADMINISTRATION BUILDINGOXIORII��' DRAWN BY : SECTION L` L'' SHEET 1801 27th STREET /ND/AN R/VER COUNTY Do SIL ON SKETCH AND DESCRIPTION OF VERO BEACH , FL 32960 Deportment of Publ/c Works APPROVED BY T ❑ W N S H I P 325. PARCEL 3-PROPOSED RIGHT OF WAY / ( 772 ) 567 - 8000 Engineering Division DoSIL ON RANGE 39E. of 2 _ 25 ' 0 100 200 Nan / 25 ' - I I ' o z / • I im m GRAPHIC SCALE m I ( IN FEET ) ' mm 7D CIO m / - , z o n Icc � Ir IJImIm - _ r _ � - � N 0 r Im z10 — _ _ � - - S89' 59 ' 41 " E , U, / 7uN ' I � m , _ _ - - - - 25 . 12 ' / . � � Nm CD a o mml k _ _ - - - - - - - o L ' H ' CANAL N EXISTING E' LY No o XPL 01 cnlc LATERA Ln R/W LINE - - - - - - - 000 > N N z 0 ^ I Iml N o I z -< w Z of lI �N � 0 � O N N05 KEN 1061 .73 ' 3 - - - - - - - 000 ° m - N m I � � 31st AVENUE PARCEL KEN Mc o W 1 W I o OPOSED 68' NW PROP P . 1 . No . °' o z IN m PR 505' 35' 37 " E 1061 . COR I 32 - 39 - 22 - 00000 00 m m - ` - - 1�PEf2 - 1000 - 00007 . 0 0 L 1 I I(PARCEL PG 2287 PROPOSED E ' LY O . R . B . 2260 , PG . 2280 0 �� _ I IORB_2260,_ - - - - - -- i o R/W LINE _ 35 . b0 ' E LINE OF THE SW 1 / 4 , OF THE NE 1 /4 SEC 22_32 - 39 _ _ _ _ _ _ _ _ _ _ E LINE OF THE -� f N00' 21 ' S4 "W u : z n � 0 n 205 . 00 ' � NW 1 /4 , OF THP' rn o u r N00' 21 ' 54 ' !J i � ' � V NE 1 /4 OF 0l0 mmm rn cn 25 .00 ' I ) Tu ' 7000 � 0 D. N W SEC 22 - 32- 39� � � 0 R oIN FIT u: m Or r cn// m �', cn r'' O NIr � A m � N � � SIO A cf) Cp � O I J O Z N —i0 rcn m I� _ 07 r � N '. �. � z m � z �o -u c � z -D :� _ o m z1 m 'p m O � � O (d � z m', O . UIQ - Im.. cDO � - ' � zm)', � oo � -u v � m ACA 1 �0 W J , N p _ o m c-' I0: N fONN m, "00p0 r � c o .AO IzITo /1 co �cna _ IN'. BO06 O .TJ Iv O PT / ' — O' Tu --_ O I - - - S LINE OF 30 ' I GRESS/ _ - - - _ r of EGRESS ESMT PIR ORB 1528 , - PG 46 & ORB E86 , PG 2922 I ' ACCES $ ESMT —�,00wI �66 . � 25 ' PER O B1694 , I � PG 21 1 z 30 ' WILLIAM & CARLYNE JERKINS_ F P . LD . `YNIo . 32 - 39 - 22 - ODOGO - 1000 - 00003 . 1 - O . R . B 10200 PG . 251 NOT COMPLETE WITH ❑ UT SHEET 1 OF 21 _ THIS IS NOT A BOUNDARY SURVEY SKETCH TO ACCOMPANY LEGAL DESCRIPTI ❑ N PREPARED FOR INDIAN RIVER COUNTY ENGINEERING DEPARTMENT NDIAN RIVER COUNTY ADMINISTRATION BUILDING0'�IVEAJ� DRAWN fiYSECTI ❑ N 22 SHEET /ND/AN R/VER COUNTY D. S/L ONSKETCH AND DESCR/PT/ON OF 2ao , 2CH L 329 Deportment of Pub/ic Works TOWNSHIP325vERo eEACH , FL 329so APPROVED eY : PARCEL 3—PROPOSED R/GHT OF WAY /( 772 ) 567 - 8000 Engineering Division Do SIL RANGE 39E. of 2