HomeMy WebLinkAbout2011-093 AGREEMENT FOR RETURN OF EQUIVALENT RESIDENTIAL UNITS
THIS AGREEMENT, entered into as of this 12 t h day of April, 2011 by and between
INDIAN RIVER COUNTY, FLORIDA a political subdivision of the State of Florida, 1801 27th
Street, Vero Beach, 32960 ("County") and, PELICAN POINTE UMBRELLA ASSOCIATION,
INC. , a not for profit master condominium association, 5885 Marina Drive, Sebastian, Florida,
32958 , ("Association") .
WITNESSETH
WHEREAS , in the 1980s, Pelican Pointe, Corp, a Florida corporation ("Developer") began
developing Pelican Pointe Condominiums of Sebastian ("Pelican Pointe") on real property located in
Sebastian, Florida. In connection with the development of Pelican Pointe, Developer purchased 123
sewer Equivalent Residential Units ("ERUs") from County in 1991 ; however, Developer only
utilized 101 of the 123 ERUs in the actual development of the project; and
WHEREAS, Developer was dissolved by the Florida Secretary of State on October 4, 2002 ;
and
WHEREAS, at some point before or after Developer' s dissolution, Developer turned over
the final common elements of Pelican Pointe to Association. Neither County nor Association is
aware of any documents in which Developer actually transferred the 22 unused ERUs to Association.
Association was not aware of the unused ERUs, never made a decision to purchase or acquire the
ERUs, never accepted a transfer of the ERUs from Developer, and never would have accepted a
transfer of the ERUs, if Association had been aware of their existence; and
WHEREAS, County continued to bill Developer for base facility charges related to the
unused ERUs, which Developer did not pay, resulting in liens being placed on the common elements
then owned by Association. In 2007 , three of the unused ERUs were redeemed by County in
payment of accrued base facility charges . In 2009, County recorded another lien for newly accrued
base facility charges, which lien remains unsatisfied as of the date of this agreement; and
WHEREAS, none of the remaining real property within Pelican Pointe can ever be
developed with additional condominium units, clubhouse structures, etc . , due to environmental,
conservation and other factors . Accordingly, there is no possible use for the remaining 19 ERUs in
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connection with Pelican Pointe ; and
WHEREAS , based upon the unique and peculiar circumstances set forth above, it is
appropriate that County consider the remaining 19 ERUs to be abandoned or redeemed, in
accordance with the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants
and premises hereinafter, County and Association agree as follows :
1 Recitals. The above recitals are affirmed as being true and correct and are
incorporated herein.
2 Abandonment by Developer. Developer has been dissolved and has not existed as a
valid legal entity since October 4, 2002 . Neither Developer' s final directors nor its
officers have never contacted County concerning the remaining ERUs . Under these
circumstances, County considers the ERUs to have been abandoned by Developer.
3 Association ' s Interest in ERUs . To the extent that Association owns any right, title
or interest in or to the 19 remaining ERUs, Association hereby transfers and delivers such
right title and interest to County with the knowledge that (a) a portion of the value of the
ERUs equal to (i) the amount due on County' s outstanding lien, and (ii) any other
charges outstanding with respect to the ERUs, will be applied in satisfaction of the lien
and charges, and (2) Association will - receive no other payment or consideration for the
transfer of its right, title and interest to County . County accepts the ERUs on such terms,
will promptly record a satisfaction of the lien and reflect a zero balance due with respect
to the ERUs, and will stop accruing any further charges with respect to the ERUs .
4 Future Development. Association acknowledges and agrees that if, despite the
environmental, conservation and other factors referenced above, it somehow becomes
possible in the future to develop additional units or structures within Pelican Pointe
requiring sewer ERUs, Association will have to purchase new sewer ERUs in accordance
with then existing County ordinances .
5 Release . Each party releases, satisfies and discharges the other parry with respect to
any claims, charges or other liabilities relating to the 19 remaining ERUs, as well as the 3
ERUs redeemed in 2007 .
6 Litization . In the event of any litigation arising out of this Agreement, each party
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shall be responsible for its own attorneys , fees and costs .
7 Amendment. No amendment, modification, change, or alteration of this Agreement
shall be valid or binding unless accomplished in writing and executed by all of the parties
hereto . This Agreement contains the entire agreement and understanding between the
parties.
8 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their personal representatives, heirs, successors, and assigns .
9 Governing LawNenue. This Agreement and all matters arising hereunder shall be
governed by and construed in accordance with the laws of the State of Florida. Venue for
proceedings hereunder shall lie in Indian River County, Florida.
10 Further Assurances . County and Developer shall grant such further assurances and
provide such additional documents as may be required by one another from time to time,
and cooperate fully with one another in order to carry out the terms and conditions hereof
and comply with the express intention of this Agreement.
11 Seve— In the event any term, condition, or clause of this Agreement is
declared to be illegal or unenforceable by a court of competent jurisdiction, such
declaration of illegality or unenforceability shall not affect or alter the legality or
enforceability of any remaining term, condition, or clause hereof, provided ofthe parties,
as set forth in this Agreement.
IN WITNESS WHEREOF, County and Association have caused these presents to be executed
in their names, the day and year first above written.
PELICAN POINTE BOARD OF COUNTY CONMUSSIONERS
UNIB,t.ELLA ASSOCIATION, INC . INDIAN RIVER COUNTY, FLORIDA
' I
BY : J BY :
President Bob Solari , Chairman
,a
Secretary i
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��V COMMi
By ���7
Jos A. B ' d, County Administrator
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Attest : ; •�,• � • ••'••;`
NO RCOUNITVy
ale K. Barton ■• , N .�
Clerk of Court
Approved as to form and legal sufficiency
Alan S . PoIZ Sr.
County Attorney
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