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HomeMy WebLinkAbout2009-238 doo - a3 AGREEMENT TO PURCHASE AND SELL REAL ESTATE BETWEEN MARY DABNER AS SUCESSOR PLENARY GUARDIAN OF THE PERSON AND PROPERTY OF ELVESTER B . MOWATT AND INDIAN RIVER COUNTY THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ( "Agreement" ) is made and entered into as of the 8th day of September , 2009 , by and between Indian River County , a political subdivision of the State of Florida ( "the COUNTY" ) , and Mary Dabner as successor plenary guardian of he person and property of Elvester B . Mowatt ( "SELLER" ) , who agree as follows : WHEREAS , SELLER owns property located at 8540 64th Avenue , Sebastian , Florida . A property sketch and legal description and a print out from the Indian River County Property Appraiser' s website of the property is attached to this agreement as Composite Exhibit "A" and incorporated by reference herein ; and WHEREAS , the COUNTY, is scheduled to expand CR 590 in the near future and the road expansion will impact and affect Ms . Mowatt' 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 rlght-of-way from landowners adjacent to CR 510 Avenue ; and WHEREAS , SELLER is represented by Raymer F . Maguire , III of the law firm of Fixel , Maguire & Willis , 1010 Executive Center Drive , Suite 121 , Orlando , Florida ; 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 8540 64th Avenue , Sebastian , Florida and more specifically highlighted in the color orange In the sketch attached as Exhibit "A" , containing approximately . 28 ( . 175 + . 105 ) Page 1 of 7 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 $28 , 004 . 80 . 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 . 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 . 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 . Page 2 of 7 5 . Default, 5 . 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 . 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 this contract . 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 . 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 . Page 3 of 7 7 . Closing Costs ; Expenses . COUNTY shall be responsible for preparation of all Closing documents . 7 . 1 COUNTY shall pay the following expenses at Closing : T1 . 1 The cost of recording the warranty deed and any release or satisfaction obtained by SELLER pursuant to this Agreement . 701 . 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 . 1 . 4 Engineering costs . There are no engineering costs for this matter. 7 . 1 . 5 Attorney' s fees and costs of $4 , 000 . 00 or 5 . 25 % of the purchase price , which ever is greater. 791 . 6 Appraiser consultation costs in the amount of $250 for the services of All Real Estate Appraisals . The costs shall be paid directly to the appraisal firm . See attached Exhibit "B " . 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 . Page 4 of 7 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 . , 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 , including the Estate of Elvester B . Mowatt in the event Elvester B . Mowatt passes away before the closing of this agreement. 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 : Mary Dabner, Guardian for Elvester Mowatt c/o Michael J . Swan , Esquire Rossway, Moore & Taylor 5070 North Highway Al Suite #200 Vero Beach , Florida 32963 If to SELLER` s Attorney : Fixel , Maguire & Willis 1010 Executive Center Dr. Suite 121 Orlando , Florida 32803 If to COUNTY : Indian River County 1840 25th Street Vero Beach , Florida 32960 Attn : Land Acquisition 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. Page 5 of 7 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 attomey'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 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 swom 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 . 8 . 11 Lydia Broxton Remainder Tract: In further consideration of SELLER agreeing to this transaction , COUNTY consents to convey to SELLER the two remainder tracts highlighted in the color blue on Exhibit "C" attached hereto ( 35 ' X 60 ' and 50 ' X 60 ' ) previously owned by Lydia Broxton that were a portion of total takes by Indian River County . 9 . Wye River Farms, Inc. This Agreement is based on Indian River County' s project specifications attached hereto as composite Exhibit " D " and as said plans relate to the project and the remainder being implemented by County. Accordingly , if the project is not so implemented , Sellers shall have the same remedies as wouid have been afforded to them had the case been resolved by verdict iNith said plans and specifications having been made a part of the record at trial . Central & Southem Florida Flood Control District v. Wye River Farms, Inc. , 297 So . 2d 3230 ( Fla . 4th DCA 1974 ) ; cert. denied 310 So . 2d 745 ( Fla . 1975 ) . This provision shall survive the closing . IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the date first set forth above . SELLER : 1 INDIAN RIVER COUNTY , FLORIDA BOARD F COUNTY COMMISSIONERS By: MarPakfivr Wesley S . Davis , Chairman Gua dian r Ivester Mowatt Date Signed : Date Signed : September 8 , 2009 Page 6 of 7 Attest: J . K . Barton , Clerk By Deputy Clerk Date Signed : September 89 2009 Approved as to form and legal sufficiency : A26William K. DeBraal Deputy County Attorney 5MI0 2 233115 Page 7 of 7 r rte.. r1 3y1 _4IF 40 l2 .'__ ^1 ? .2 _ ( 1 • / / ' I✓I —_ . Jl�i�r.�uMi . . ir•IifJS�1+'t.`����� _ i AD IiCGRNER MIFF 1 r I POW , s• •ID, to . Dy 1. 497 LA ftr Itz IDIOM ' f— I si: i pills its 11 wOFF � ydq O LO IF-- •—V • ' LA _ xi y i" 1. _ I r= LA R ,o � IT 41 N r' OI tr ' A. L LO DID 0.0 DiF ft CIA III i I1,01140% 1 1111 1 z 1r Do NAg TN r m ""pp � DeMel i �A T c DO'W"E 39.71' $ 4 N N 1•' r1 . .lig j. . ANru It 4 01,1111 11: - • IF - DA (n Apoill, m r •} tl `' , 50 . 00 ' ( � ` x `° r �::i Do rte— '1op � p p .Lon 3 F4'nl .•'. Fool t DID Lel aA..caDo swow MIFF ` J , m J ' ` N son roll -n `n 2 IIF F �^ V IMP P . O. B. I all o Ln + Yi 233 .. N . 27067443 x. 4554 m $ 53 . OU' t J adill, good SZ:FT ; 0"",allow • 0 . 105 Its 1 ACS . 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