HomeMy WebLinkAbout2008-424 f3 . � . fQ
AGREEMENT TO PURCHASE AND SELL REAL ESTATE
BETWEEN
TIMOTHY E . AND JOSHANA TYNES
AND INDIAN RIVER COUNTY
THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ("Agreement" ) is
made and entered into as of the 12h day of December, 2008 , by and between Indian
River County, a political subdivision of the State of Florida ("the County" ) , and Timothy E .
Tynes , Joshana Tynes and Mermaid Carwash , Inc . ("Seller" ) , who agree as follows :
WHEREAS, Seller owns property located at 1935 43`d Avenue , Vero Beach , Florida
32960 . A sketch and 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 43`d Avenue in the near future and
the road expansion will impact and affect Seller' 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
43`d Avenue ; and
WHEREAS , the County has contacted Seller and has offered to purchase the entire
parcel of property from Seller, approximately 0 . 47 acres to be used as right-of-way (the
Property) ; and
WHEREAS , Seller is represented by the firm of Tileston , Simon and Holloway, P . A . ,
David W . Holloway , Esq . , 1711 Gunn Highway, Odessa , FL 33556- 1909 ; and
WHEREAS , the County is prepared to take the Property by using its power of
eminent domain ; and
WHEREAS , Seller 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 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 ,
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1935 43rd Avenue Vero Beach , Florida 32960 and more specifically described in
the sketch and legal description attached as Exhibit "A" , containing approximately
0 . 47 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 one million one hundred thirty five thousand dollars
($ 1 , 135 , 000 . 00 ) The Purchase Price shall be paid on the Closing Date , The
Effective Date of this Agreement shall be the date upon which the Indian River
County Board of County Commissioners shall have approved the execution of this
Agreement . The Indian River Board of County Commissioners must approve the
terms of this Agreement as set forth in this agreement, during a regular meeting of
the Commission .
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 shall order a Title Insurance Commitment and Policy with respect to the
Property in the amount of the appraised value of $950 ,000 . 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 cure the defects within thirty ( 30)
days from receipt of notice from County of title defects ("Curative
Period") .
Seller shall use their 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 are
the sole owners of and have 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 .
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
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record no documents in the Public Records which would affect title to the Property ,
without the prior written consent of the County.
4 . 3 . 1 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 . 1 In the event the County shall fail to perform any of its obligations hereunder, the
Seller shall , at their 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 .
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 30 days following execution unless extended to implement
the provisions of Section 3 . 1 . 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 ) Subject to a lease between the parties , the Seller shall have removed
all of their 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 are 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 .
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(d ) If the Seller are 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 .
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 , The County or their Attorneys shall be responsible for
preparation of all Closing documents .
7 . 1 County shall pay the following expenses at Closing :
7 . 1 . 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 .
7 . 2 . 2 Any and all or their own appraisal fees , expert fees , Attorney' s fees and costs .
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 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 .
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8 . 3 Waiver and Release of Claims of Eminent Domain . This agreement represents the
full and final satisfaction of any and all claims Seller may have in Eminent Domain
with respect to the Property, fees and costs .
8 .4 Assignment and Binding Effect . Neither County nor Seller may assign their 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 .
$ . 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: Timothy E . Tynes and Joshana Tynes
And Mermaid Carwash , Inc .
1935 43`d Avenue
Vero Beach , FL 32960
If to Seller' s Attorney : Tileston , Simon and Holloway, P . A .
David W . Holloway, Esq .
1711 Gunn Highway
Odessa , FL 33556- 1909
If to County : Indian River County
County Attorney's Office
1801 27`h Street
Vero Beach , FL . 32960
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, each party shall bear its own attorney' s fees , costs , and expenses .
8 . 8 . Counterparts, This Agreement maybe executed in two or more counterparts , each
one of which shall constitute an original .
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8 . 9 . County Approval Required : This Agreement is subject to approval by the Board of
County Commissioners of Indian River County .
8 . 10 . 1 Beneficial Interest Disclosure : In the event Seller are 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.
9 . Lease-back: The County shall execute and deliver to Seller a lease of the Property
at the Closing . The term of the lease shall begin the day of the Closing and end on
March 31 , 2010 . The lease payment shall be one dollar ($ 1 . 00 ) per month .
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IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the
date first set forth above .
SELLER : BUYER :
Mermaid Carwash , Inc . Indian River County, Florida
Board of County Comissionors
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Timothy , r ident By : esley S . Davis , Chairman}' '
Date : Date : December 16 , 2008
Attest : Mary Louise Scheidt, Clerk, Ad Interim
imothy E . es ' divid ally By: Deputy Clerk
Date : Date : `
B : oshana Tynes ndividually and
ag owner of Mermaid Carwash , Inc .
Date :
Approved as to form and legal sufficien y :
William K . DeBraal
Deputy County Attorney
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