HomeMy WebLinkAbout2008-076� � I
Project/Parcel: Jones Pier a �. _ C ib
OPTION AGREEMENT FOR BARGAIN SALE AND PURCHASE
OPTIONN
AC�,I;tEJ`NIENT
FOR SALE
AND PURCHASE ("Agreement") is made this
y of .02W!,
y and
between Richard
M. Jones as to a one-half
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interest
and
Mary
32970 (jointly, "Seller"), and INDIAN RIVER COUNTY, a political subdivision of the State of
Florida, whose address is 1840 25t" Street, Vero Beach, Florida 32960 ( "Purchaser").
1.1. GRANT OF OPTION. Seller hereby grants to Purchaser the exclusive option to
purchase the real property located in Indian River County, Florida, described in Exhibit "A",
togetherwith all improvements, easements and appurtenances ("Property"), in accordance
with the provisions of this Agreement.
1.2. This Agreement becomes legally binding upon execution by the parties but exercise
of the option is subject to approval by Purchaser and is effective only if Purchaser gives
written notice of exercise to Seller. The parties acknowledge and agree that this Agreement
is an "option contract" within the meaning of Florida Statutes section 125.355 (1)(a). The
parties further acknowledge and agree that the exercise of the option is subject to: (a) the
satisfaction, or written waiver by both parties, of all conditions precedent contained in this
Agreement; (b) the approval of the Purchase Price for the Propertyby Purchaser; and (c) the
approval of this Agreement by the Indian River County Board of County Commissioners at a
public meeting after 30 days' public notice.
1.3. CONDITIONS PRECEDENT. The following are the conditions precedent for
Purchaser to exercise the option granted under this Agreement: (1) Receipt of a satisfactory
Survey (as hereinafter defined); (2) Receipt of satisfactory environmental site assessment(s)
as set forth herein, to include all successively required phases of environmental site
assessments/audits; (3) The existence of no uncured Title Defects (as hereinafter defined),
except as otherwise set forth in this Agreement; (4) The receipt of an opinion of Bond
Counsel for Indian River County that the exercise of the option granted in this Agreement,
and the subsequent acquisition of the Property as contemplated herein, using bond
proceeds from the tax exempt general obligation bonds issued by Indian River County as
contemplated by Resolution No. 2005-059 adopted May 17, 2005; Resolution 2004-062
adopted June 22, 2004; and the "2004 Referendum" (as that term is used in the foregoing
resolutions will not adversely affect the exclusion from gross income for purposes of federal
income taxation of interest on such bonds; (5) receipt by Purchaser of a duly executed
Waiver and Release of Right of First Refusal, in the form set forth in Exhibit "B", between Mr.
Kenneth P. Kennedy. (herein "Kennedy') and Seller;�receipt by Purchaser of aK
agreement, duly executed by Kennedy, between Kennedy and Indian River County as
Purchaser setting forth the terms and conditions for the harvesting of palm trees from the
31U(wq portion of the Property specifically delineated therein, such agreement to be reasonably
satisfactory to Purchaser and having a termination date of no later than December 31, 2008
(herein the "Palm Agreement'); and (7) confirmation from Florida Communities Trust that the
gr nt to Purchaser for a portion of the Purchase Price is still in effect .
7/��!'��,•` 1.3.1 Sovereign Submersed Lands Lease. Prior to Closing, Seller shall apply for, complete, and
pay all costs to transfer the Sovereign Submerged Lands Lease to Purchaser so that such
w
Leas"' transferred to Purchaser at Closing.
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1.4. CARETAKER AGREEMENT. Purchaser acknowledges that the Property has been
Mr. Richard M. Jones' home for all of his life and -it is the intent of Indian River County as
Purchaser to will enter into the Caretaker Agreement attached hereto as Exhibit "C", at
Closing to allow Mr. Richard M. Jones as Caretaker to remain on the Property pursuant to
the terms and conditions of the Caretaker Agreement.
1.5. Historic Designation. After the Closing, Indian River County as Purchaser intends to
apply to the Florida Bureau of Historic Preservation for designation of the existing house,
homestead portion of the Property, and the southernmost dock (herein collectively "Historic
Structures") located on the Property as a State Heritage Site. The Historic Structures may
also qualify for inclusion in the National Register of Historic Places. Seller agrees to
cooperate with Purchaser in connection with: (i) the foregoing applications and (ii) obtaining
and locating the associated historic signage and markers. Seller acknowledges and agrees
that each of the foregoing designations will place certain use and other restrictions on the
Historic Structures including, without limitation, those restrictions included in the Code of
Federal Regulations, Title 36, Part 68 the Secretary of the Interior's Standards for Treatment
for Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and
Reconstructing Historic Buildings, as the same may be amended from time to time (the
foregoing collectively "Historic Restrictions").
1.6. 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 forms attached to this Agreement as Exhibit "D" that complies with all of the provisions of
Florida Statutes Section 286.23 prior to approval of this Agreement by Purchaser. 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
Florida Statutes Chapter 517, 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.
2. OPTION TERM. The option payment is $100.00 ("Option Payment"). The Option
Payment, in the form of a check, will be forwarded to Seller as soon as possible. The option
may be exercised during the period beginning with the Purchaser's approval of this
Agreement and ending 90 days after approval of this Agreement by the Indian River County
Board of County Commissioners ("Option Expiration Date"), unless extended by other
provisions of this Agreement. In the event the conditions precedent are not satisfied at the
end of the Option Expiration Date, Seller and Purchaser agree that the Option Expiration
Date may be extended by Purchaser, not to exceed 30 days after the Option Expiration
Date, by written notice from Purchaser to Seller. Purchaser and Seller agree to use their
best efforts to exercise the option and close as soon as possible, even if prior to the Option
Expiration Date, so long as all requirements of this Agreement are fulfilled.
p, 3. PURCHASE PRICE. The total purchase price ("Purchase Price") for the Property is
Six Million Seven Hundred Fifty Thousand Dollars ($6,750,000). The Purchase Price, after reduction
by the amount of the Option Payment, will be paid by purchaser at closing to Seller as set
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forth herein. The parties acknowledge and agree that the Purchase Price is based on an
estimated size of the Property of 16.66 acres.
4. A. ENVIRONMENTAL SITE ASSESSMENT. Purchaser shall, at its sole cost and
expense, provide an environmental site assessment of the Property that is certified to
Purchaser: meets the standard of practice of the American Society of Testing Materials
("ASTM") Practice E 1527; meets all and the current standards and requirements attached to
this Agreement as Exhibit "E"; bears a date that is not less than 35 days prior to the Option
Expiration Date; and is performed by an environmental site assessment professional firm
satisfactory to Purchaser ("Phase I"). For purposes of this Agreement "Hazardous
Materials" shall mean any hazardous or toxic substance, material or waste of any kind or any
other substance which is regulated by any and all applicable federal, state or local laws,
statutes, ordinances, rules, regulations or other governmental restrictions regulating, relating
to, or imposing liability or standards of conduct concerning Hazardous Materials (herein
"Environmental Law".
4. B. HAZARDOUS MATERIALS. In the event that the Phase I confirms the presence (or
significant risk of the presence, as determined in Purchaser's sole discretion) of Hazardous
Materials on the Property, Purchaser, at its sole option, may elect to terminate this
Agreement and neither party shall have any further obligations under this Agreement.
Should Purchaser elect not to terminate this Agreement, Seller shall, at his sole cost and
expense and prior to the exercise of the option and closing, promptly commence and
diligently pursue any assessment, clean up and monitoring of the Property necessary to
bring the Property into full compliance with any and all Environmental Law. However, should
the estimated cost of clean up of Hazardous Materials exceed a sum which is equal to 5% of
the Purchase Price, Seller may elect to terminate this Agreement and no party shall have
any further obligations under this Agreement. In the event that Hazardous Materials placed
on the Property prior to closing are discovered after closing, Seller shall remain obligated
hereunder, with such obligation to survive the closing, delivery, and recording of the deed
hereunder, diligently to pursue and accomplish the clean up of Hazardous Materials in a
manner consistent with all applicable Environmental Laws and at Seller's sole cost and
expense.
5. SURVEY. Purchaser shall, at Purchaser's sole cost and expense obtain a current
boundary survey of the Property prepared by a professional land surveyor licensed by the
State of Florida, satisfactory to Purchaser, that meets both the minimum technical
requirements and standards promulgated by the Florida Board of Professional Land
Surveyors and the survey procedures attached to this Agreement as Exhibit "F" ("Survey").
The Survey shall be certified to Purchaser, title insurer, and the closing agent, and the date
of certification shall be within 90 days before the date of closing, unless this 90 day time
period is waived by Purchaser and by the title insurer for purposes of deleting the standard
exceptions for survey matters and easements or claims of easements not shown by the
public records from the owner's title policy. If the Survey shows any defect, or any
encroachment on the Property, or that improvements intended to be located on the Property
encroach on the land of others, the same shall be treated as a "title defect" under this
Agreement.
3
6. TITLE INSURANCE. Seller shall, at its sole cost and expense and at least 35 days
prior to the Option Expiration Date, furnish to Purchaser a marketable title insurance
commitment, together with copies of all instruments described in Schedule B of the
Commitment, and, upon closing, an owner's marketable title insurance policy (ALTA Form
"B") from a title insurance company, approved by the Purchaser, insuring marketable title of
the Purchaser in and to the Property in the amount of the Purchase Price. The Title Agent
shall be Robert D. Schwartz, P.A., whose address is 2240 Woolbright Rd., Suite 411,
Boynton Beach, Florida, 33426 and whose phone number is (561) 367-0354 and whose fax
number is (561) 736-4808. Seller shall require that the title insurer delete the standard
exceptions of such policy referring to: (a) all taxes, (b) unrecorded rights or claims of parties
in possession, (c) survey matters, (d) unrecorded easements or claims of easements, and
(e) unrecorded mechanics' liens.
7. TITLE DEFECTS. If the title insurance commitment or Survey furnished to
Purchaser pursuant to this Agreement discloses any defects in title which are not acceptable
to Purchaser (herein "Title Defects"), Seller shall remove such defects in title within 90 days
after notice from Purchaser ("Cure Period"). Seller agrees to use diligent efforts to correct
the Title Defects within the Cure Period; however, Seller shall not be obligated to bring suit to
cure such defects. Purchaser and Seller acknowledge and agree that the Option Expiration
Date, or, if applicable, the closing date shall be extended for the duration of the Cure Period.
If Seller is unsuccessful in removing the Title Defects within the Cure Period, or if Seller fails
to make a diligent effort to correct the Title Defects, Purchaser shall have the option to
either: (a) accept the title as it then is with no reduction in the Purchase Price; (b) extend the
amount of time that Seller has to cure the Title Defects; or (c) terminate this Agreement,
thereupon releasing Purchaser and Seller from all further obligations under this Agreement.
8. INTEREST CONVEYED. At closing, Seller shall execute and deliver to Purchaser a
statutory warranty deed in accordance with Section 689.02, Florida Statutes, conveying
marketable title to the Property in fee simple free and clear of all liens, reservations,
restrictions, easements, leases, tenancies and other encumbrances, except for those that
are acceptable encumbrances in the opinion of Purchaser and do not impair the
marketability of the title to the Property, nor the management of the Property under
Purchaser's environmentally sensitive lands acquisition program. The grantee in Seller's
statutory warranty deed shall be Indian River County, a political subdivision of the State of
Florida.
9. PREPARATION OF CLOSING DOCUMENTS. The Title Agent shall prepare the
deed described in paragraph 8 of this Agreement; Seller's and Purchaser's closing
statement; the title, possession and lien affidavit certified to Purchaser and title insurer in
accordance with Section 627.7842, Florida Statutes; an environmental affidavit; and any
other customary closing documents, all on forms approved by Purchaser ("Closing
Documents"). All prepared Closing Documents shall be submitted to Purchaser for review
and approval at least ten (10) days prior to closing. Purchaser will approve or reject the
Closing Documents five (5) days after receipt by Purchaser. Seller will have three (3) days
thereafter to revise and resubmit any rejected Closing Document to Purchaser. In the event
Seller fails to timely deliver any Closing Document, or Purchaser rejects any Closing
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Document after delivery or revision, Purchaser may in its discretion extend the closing date
accordingly.
10.1. SELLER'S REPRESENTATIONS AND WARRANTIES. To induce Purchaser to
enter into this Agreement, Seller represents and warrants to Purchaser as follows: (1) From
and after the date Seller executes this Agreement, Seller shall maintain and operate the
Property in a manner consistent with Seller's maintenance and operation during the 12 -
month period immediately preceding Seller's execution of this Agreement; (2) 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, free and clear of
all liens and encumbrances except those of record and accepted by Purchaser; (3) there is
legal ingress and egress for the Property over public roads or valid, recorded easements that
benefit the Property; (4) From and after the date Seller executes this Agreement, Seller
shall not enter into any lease, lease renewal, option, agreement to sell or otherwise
encumber the Property and shall record no documents in the public records which would
affect title to the Property, without the prior written consent of Purchaser; (5) 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) The Seller has not violated, has not received
any notices of violation and has no knowledge of any existing facts or conditions which may
result in any violations of any zoning, safety, environmental, health or other codes, laws,
ordinances or regulations with respect to the Property; (7) The Seller is not aware of any
information or fact which would materially or adversely affect the Property or the
contemplated use thereof which has not been disclosed to Purchaser in writing; and (8)
there will be no parties in occupancy or possession of any part of the Property at Closing,
except as follows: (a) Mr. Richard M. Jones as Caretaker under the Caretaker Agreement;
and (b) that certain "Agricultural (Tropical Tree Nursery /Coconut Palm Tree Grove) Lease
Agreement" for a portion of the Property that has a termination date of January 9 , 2008
(herein the "Kennedy Lease") attached hereto as Exhibit G.
10.2. SELLER'S DOCUMENTATION. Seller shall deliver to Purchaser, within twenty (20)
days after Seller's execution of this Agreement, copies of the following documents and items
that are true, correct and complete copies of the originals of such items, together with any
and all modifications thereto: (1) Any and all surveys of the Property; (2) All engineering, soil,
environmental, technical, zoning, access and similar reports or documents with respect to
the Property prepared by or for Seller; (3) any existing owner's title insurance policy for any
portion of the Property; and (4) evidence of flood, hazard and windstorm insurance for the
portion of the Property subject to the Caretaker Agreement.
11. EXPENSES. Seller will pay the documentary revenue stamp tax and all other taxes
or costs associated with the conveyance, including the cost of recording the deed described
in paragraph 8 of this Agreement and any other recordable instruments which Purchaser
deems necessary to assure good and marketable title to the Property.
12. TAXES AND ASSESSMENTS. All real estate taxes and assessments which are or
which may become a lien against the Property shall be satisfied of record by Seller at
closing. In the event Purchaser acquires fee title to the Property between January 1 and
i
November 1, Seller shall, in accordance with Section 196.295, Florida Statutes, place in
escrow with the county tax collector an amount equal to the current taxes prorated to the
date of transfer, based upon the current assessment and millage rates on the Property. In
the event Purchaser acquires fee title to the Property on or after November 1, Seller shall
pay to the county tax collector an amount equal to the taxes that are determined to be legally
due and payable by the county tax collector.
13. CLOSING PLACE AND DATE. The closing shall be on or before 30 days after the
option is exercised; provided, however, that if a defect exists in the title to the Property, title
commitment, Survey, environmental site assessment, or any other documents required to be
provided or completed and executed by Seller, the closing shall occur either on the original
closing date or within 30 days after receipt of documentation curing the defects, whichever is
later. The closing will be held in Vero Beach, Florida, at the office of the County Attorney,
the title insurer, or by mail, on the date and at the time agreed to by the parties. The parties
agree that a closing as early as reasonably possible is the intention of Seller and Purchaser.
14. RISK OF LOSS AND CONDITION OF REAL PROPERTY. Seller assumes all risk of
loss or damage to the Property prior to the date of closing and warrants that the Property
shall be transferred and conveyed to the Purchaser in the same or essentially the same
condition as of the date of Seller's execution of this Agreement, ordinary wear and tear
excepted. However, in the event the condition of the Property is altered by an act of God or
other natural force beyond the control of Seller, Purchaser may elect, at its sole option, to
terminate this Agreement and neither party shall have any further obligations under this
Agreement. Seller agrees to clean up and remove all abandoned personal property, refuse,
garbage, junk, rubbish, trash and debris from the Property, exclusive of the homestead area
described in the Caretaker Agreement, to the satisfaction of Purchaser prior to the Closing;
provided, however, that Seller acknowledges and agrees that the homestead area described
in the Caretaker Agreement must be maintained in accordance with applicable provisions of
the Indian River County Code.
15. RIGHT TO ENTER PROPERTY AND POSSESSION. Seller agrees that from the
date this Agreement is executed by Seller, Purchaser and its agents, upon reasonable
notice, shall have the right to enter the Property for all lawful purposes in connection with the
this Agreement. With regard to any entry by Purchaser upon the Property prior to closing,
Purchaser's liability to Seller or to any third party shall be subject to the limitations and
conditions specified in section 768.28, Florida Statutes. Seller shall deliver possession of
the Property to Indian River County as Purchaser at closing subject to the terms and
conditions of the Caretaker Agreement and if purchased prior to January 9, 2008, to the
Kennedy Lease. Upon the termination of the Kennedy Lease or in accordance with the
terms of the Palm Agreement, as applicable, the palm trees must be removed by Kennedy
on or before December 31, 2008, provided, however, that such removal shall only be made
pursuant to the Palm Agreement; in the event the palm trees are not so removed, ownership
of the palm trees shall automatically revert to Indian River County. Upon expiration of the
Palm Agreement, the County will control the area that was subject to the Palm Agreement
and the County shall have the ability to begin management and restoration activities on that
portion of the Jones Pier Property. The County is required to be able to open that portion of
the Property to the public after a five-year period. Asset forth in the Caretaker Agreement,
Caretaker shall retain exclusive use of the Residential Area, provided that the Caretaker
Agreement is still in effect. The County shall have the right to access the palm plantation
area of the Property via the roadway Seminole Trail (Platted County Road Right -Of -Way)
which runs north off of the easternmost end of Morningside Drive (which runs east off of
Jungle Trail which is to the west and runs north and south parallel to Seminole Trail) into
about the mid -point of the subject Property.
16. NOTICES. Any notice shall be deemed duly served if hand delivered; mailed by
certified mail, return receipt requested; sent via "overnight" courier service; or facsimile
transmission, as follows:
If to Seller:
Richard M. Jones
P. O. Box 94
Wabasso, Florida 32970
If to Purchaser:
Indian River County
1801 - 27t i Street, Vero Beach, FL 32960
Attn: Roland Deblois
Facsimile # (772) 978-1806
17. DEFAULT. In the event Purchaser fails to perform any of its obligations hereunder,
the Seller shall, at Seller's sole option, be entitled to: (i) terminate this Agreement by written
notice delivered to Purchaser 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 Purchaser; or (ii) waive Purchaser's default and proceed to Closing. In
the event Seller fails to perform any of its obligations hereunder, Purchaser 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 Purchaser nor any other person or
party shall have any claim for specific performance, damages or otherwise against the
Seller; (ii) obtain specific performance of the terms and conditions hereof; or (iii) waive
Seller's default and proceed to Closing. In connection with any dispute arising out of this
Agreement, including without limitation litigation and appeals, each party will be responsible
for its own attorney's fees and costs.
18. BROKERS. Seller warrants that no persons, firms, corporations or other entities are
entitled to a real estate commission or other fees as a result of this Agreement or
subsequent closing, except as accurately disclosed on the Closing Documents. Seller shall
indemnify and hold Purchaser harmless from any and all such claims, whether disclosed or
undisclosed.
19. RECORDING. This Agreement may not be recorded.
20. ASSIGNMENT. This Agreement may be assigned by Purchaser, in which event
Purchaser will provide written notice of assignment to Seller. This Agreement may not be
assigned by Seller without the prior written consent of Purchaser.
21. TIME. Time is of essence with regard to all dates or times set forth in this Agreement.
22. SEVERABILITY. In the event any of the provisions of this Agreement are deemed to
be unenforceable, the enforceability of the remaining provisions of this Agreement shall not
be affected.
23. SUCCESSORS IN INTEREST. Upon Seller's execution of this Agreement, Seller's
heirs, legal representatives, successors and assigns will be bound by it. Upon Purchaser's
approval of this Agreement and Purchaser's exercise of the option, Purchaser and
Purchaser's successors and assigns will be bound by it. Whenever used, the singular shall
include the plural and one gender shall include all genders.
24. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties. No
supplement, modification or amendment to this Agreement shall be binding unless executed
in writing by the parties.
25. WAIVER. Failure of Purchaser or Seller to insist upon strict performance of any
covenant or condition of this Agreement or to exercise any right herein contained, shall not
be construed as a waiver or relinquishment for the future of any such covenant, condition or
right; but the same shall remain in full force and effect.
26. AMENDMENTS. No modification, amendment or alteration hereto, shall be effective
or binding upon any of the parties hereto until it has been executed by all of the parties
hereto.
27. SURVIVAL. The covenants, warranties, representations, indemnities and
undertakings of Seller set forth in this Agreement shall survive the closing, the delivery and
recording of the deed described in paragraph 8. of this Agreement and Indian River County
as Purchaser's possession of the Property.
28. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original copy and all of which shall constitute but
one and the same instrument.
29. BARGAIN SALE. Purchaser acknowledges that Seller intends to effectuate a
"bargain sale" of the Property, i.e., a sale to a charitable organization at a price below fair
market value wherein the difference is considered a charitable contribution under applicable
sections of the Internal Revenue Code. Seller acknowledges that the substantiation of a
charitable contribution deduction rests exclusively with Seller, with the exception of
Purchaser's execution of Internal Revenue Service Form 8283. Purchaser agrees to provide
04
copies of the appraisals obtained by Purchaser, upon Seller's request, after full execution of
this Agreement.
SELLER UNDERSTANDS AND AGREES THAT THIS OPTION AGREEMENT SHALL BE
FULLY BINDING UPON SELLER AS OF THE TIME OF EXECUTION BY SELLER,
FOLLOWED WITHIN A REASONABLE TIME THEREAFTER (NO MORE THAN 45 DAYS)
BY EXECUTION BY PURCHASER.
Witness as to Seller
Witness as to Selma
SELLER:
Richard M. Jones as to a one-half ('/2)
interest
Date signed by Seller
The foregoing instrument was acknowledged before me this— �day of Cb2007, by
Richard M. Jones as Seller.*who is or who has oroduced.a.driver's
issued within
Public
(Printed, Typed
Commission No.:
*by Jack C. Metz, .40".4s,
ISa[ed`S 70372007 __ _.._, Co,.-J�2o�-,,,,•• -
Name of Notary Public) v ; #DD 693766 o
Witness as to Seller
Witness as to Selfer�
My Commission Expires:
SELLER:
Mary E. Jones as to a one-half ('/2) interest,
6>7�� v -tea
Date signed by Seller
The foregoing instrumen was acknowledged before me this day of Ct�el r 2 7, ,by
Mary E. Jones, as Seller, who is or who has produced driver's
license issued within the last five years as identification. *by ac Ie C ayton Metz, as
Attorney-inFact per Durable Power
of Attorney dated 10/15/2007
G
Typed or
Commission No.:
of Notary Public)
My Commission
rl
P7,�s0o,4?0
s�o
4DD 693766
16
PURCHASER: ;.
INDIAN RIVER CQUWY
By: �Gftiulu'(!f�
Sandra L. BWwde
Signed undf
/ 15, adopted
Attes f. arton, CI l
By: uty Clerk
(OFFICIAL SEAL)
Approved: `\
By ti
ly
Joseph A. Baird
-Aesoteet CoQ y /Administrator
Approved as to Form and Legal
,Resolution 96-
1996
Date signed by Purch ser
i/
EXHIBIT "A"
Legal Description
North 16.5 acres of the South 33.0 acres of Lots 8 and 9 less 75 x 100 foot lot at NW
corner.
Tax ID: # 31-39-36-00000-0080-00004.0
T.�
Lot in NW corner of N. 16.5 acres of S. 33.0 acres of Lots 8 and 9.
Tax ID: # 31-39-36-00000-0080-00005.0
(The final legal description will be as reflected on the County -approved survey.)
Exhibit "B"
Waiver and Release of Right of First Refusal,
WAIVER AND RELEASE OF RIGHT OF FIRST REFUSAL
This Waiver and Release, dated LF �is granted by Kennedy
Groves, Inc., a Florida corporation ("Kennedy C ov "), and Kenneth P. Kennedy
to Milton and Mary Jones (collectively, °Jones"); with respect to certain real
properly described on Exhibit A (the °Property').
Pursuant to that certain "Agricultural (Tropical Tree
Nursery/Coconuut Palm Tree Grove) Lease Agreement January 15, 2003
between Jones as Lessors and Kennedy Groves as Lessee, a copy of which is
attached as Exhibit B, Jones granted to Kennedy Groves a Right of First Refusal
with respect to any sales of the leased portion of the Property for a period of five
years (the "RoFR'). Jones desires now to sell the Property to Indian River
County and has requested that Kennedy Groves grant this Waiver and Release
of the RoFR, so that the transaction may proceed. Kennedy Groves is willing to
grant this Waiver and Release, subject to the terms and conditions set forth
below.
Therefore, in consideration of the mutual promises contained
herein, the parties agree:
Waiver and Release. Kennedy Groves and Kenneth P. Kennedy hereby
waive any rights pursuant to the RoFR with respect to a sale by Jones to
Indian River County and release the entire Property from any
encumbrance by the RoFR. Kennedy Groves covenants and agrees that
it shall not assert any rights or claim under the RoFR in response to a
sale by Jones to Indian River County.
2. Jones covenants and agrees, on behalf of himself and his successors
and assigns, in consideration of this Waiver and Release, that Kennedy
Groves may have a period of one year, from the closing of the sale of the
Properly to Indian River County, in which to remove its palm trees from
the approximately fourteen easternmost or °back° acres of the Property
that was the subject of the Lease Agreement and on which Kennedy
Groves has conducted its operations.
In witness whereof, the parties have executed this Waiver and
Release, as of the date first stated above.
Kennedy
By:
Its:
Milton Jonft
m*y J00S
[Need acknowledgement blocks for all signatories, so that it can be recorded.]
Exhibit "A"
Property Description
North 16.5 acres of the South 33.0 acres of Lots 8 and 9 less 75 x 100 foot lot at
NW comer.
Tax ID: # 31-39-36-00000-0080-00004.0
and
Lot in NW comer of N. 16.5 acres of S. 33.0 acres of Lots 8 and 9.
Tax ID: # 31-39-36-00000-0080-00005.0
Exhibit T"
Lease
@B/23/2007 15:10 5618328102
F VYH' • " AYw04
Date,
AW"t
30,
001
To.
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Exhibit "C"
Caretaker Agreement
This Caretaker Agreement ("Agreement"), dated , 2007, is by and
between Indian River County, a political subdivision of the State of Florida, and assigns ("County")
and Richard M. Jones (" Caretaker") and provides for the provision, by Caretaker, of certain services
to the County in exchange for Caretaker's exclusive use of a portion of the land surrounding and
including the residential structures and docks that the County purchased from Caretaker on even date
herewith.
A. On , 2007, County contracted to purchase from Richard M. Jones, certain real
property described on Exhibit A (the "Property"") that will eventually be maintained by the County
as a park open to the public.
B. This Agreement provides Caretaker with exclusive use of a portion of the property
surrounding and including the two (2) residential structures shown on Exhibit B "Residential Area"
which may be identified and fenced with a white picket fence and signed intermittently as the
"PRIVATE Residential Area". In addition, Caretaker will have exclusive use of the two (2) docks,
which may both be gated and signed "Private Dock."
C. As part of this Caretaker Agreement, Caretaker shall also be the "dock master" for the two
(2) docks; specifically, the southernmost dock that is part of the Historic Structures (as such term is
hereinafter defined) and the dock associated with the "Cottage" depicted on Exhibit B.
Therefore, in consideration of the mutual covenants contained herein, the parties agree:
1. Term. Unless sooner terminated pursuant to paragraph 5, this Agreement shall continue for
fifteen (15) years from the last date it is executed. Upon expiration, the Agreement shall be
automatically renewed unless there is cause for termination pursuant to paragraph 5.
2. Consideration. As consideration for use of the Residential Area, Caretaker shall pay to the
County $10.00 per year, payable each year in advance, and shall perform the Services described in
paragraph 3.
3. Services. During the Term, Caretaker or his designee shall provide the following services
and perform the following duties for the County (the "Services"): (i) maintain the residences in good
repair; (ii) monitor and report any unauthorized access at Jones Pier to County; (iii) coordinate the
scheduling of grounds maintenance with County, such grounds maintenance to be conducted by
County; and (iv) act as the "dock master" for the docks and be responsible for collecting all fees and
signatures for the ledger (as long and only as long as Caretaker feels up to performing and/or is
capable of performing as "dock master"). Any fees collected shall belong to the County but may be
used by Caretaker for the maintenance and upkeep of the Property. Caretaker shall keep a record of
fees collected and expenditures of these funds and shall provide this record to the County annually.
No vessel shall be permitted to tie-up at the commercial area of the subject dock for a period greater
than one week.
4. License to Reside. During the Term, Caretaker may occupy the residential structures and
exclusively use the Residential Area. His occupancy shall be as a licensee, and not as a tenant or
lessee.
5. Termination. This Agreement shall terminate upon the death of Caretaker, provided that
Caretaker's heirs or beneficiaries shall have a reasonable period not exceeding 90 days, following
Caretaker's death, to remove Caretaker's personal property. Caretaker may terminate this
Agreement at his discretion upon 30 days written notice to the County stating his intention to
terminate and vacate. The County may terminate this Agreement if Caretaker fails to perform the
Services in a reasonably acceptable manner. The County shall provide written notice of any
deficiencies in performance. Caretaker shall have 60 days after receipt of notice in which to correct
the stated deficiencies. The County may terminate this Agreement if the Caretaker is either
hospitalized or relocated to a nursing home or similar care facility for a period of greater than one
year.
6. Miscellaneous.
a. The County shall be solely responsible for maintaining such insurance as it deems appropriate
on the Property. Caretaker shall be solely responsible for maintaining such insurance as he deems
necessary or appropriate on his personal property within the Residential Area.
b. Caretaker indemnifies the County, its directors, officers, employees and agents against any
and all costs, claims, losses or liabilities for personal injury or property damage arising from or in
any way related to willful misconduct by Caretaker or his negligent acts or omissions in his
performance of the Services or occupancy of the Residential Area.
C. At the conclusion of the Term, whether by expiration or earlier termination, Caretaker shall
leave the residential structures "broom clean" and otherwise in the same condition as at the time of
the purchase of Jones Pier, normal wear excepted/accepted.
d. Upon expiration of Ken Kennedy's lease ("Kennedy Lease") over the palm plantation area of
the Property, the County will control the area currently subject to that lease. The County shall have
the ability to begin management and restoration activities on that portion of the Jones Pier property.
The County is required to be able to open that portion of the property to the public after a five year
period. Caretaker shall retain exclusive use of the Residential Area, provided that this Agreement is
still in effect. The County shall have the right to access the palm plantation area via the roadway
Seminole Trail (Platted County Road Right -Of -Way) which runs north off of the easternmost end of
Morningside Drive (which runs east off of Jungle Trail which is to the west and runs north and south
parallel to Seminole Trail) into about the mid -point of the subject property.
e. Caretaker may allow one of the residential structures within the Residential Area to house a
helper, nurse or caregiver of some kind for Caretaker, provided that any such arrangement terminates
when the Caretaker Agreement terminates. Any such use shall be as a licensee and not as a tenant or
lessee. Any fees collected shall belong to the County but may be used by Caretaker for the
maintenance and upkeep of the Property. Caretaker shall keep a record of fees collected and
expenditures of these funds and shall provide this record to the County annually.
f. During the term of this Agreement, the Caretaker shall use the Residential Area for aprivate,
single-family residence, and for no other purpose. Caretaker shall not use the premises or any part
thereof, or permit the same to be used for any illegal, immoral or improper purposes; not to make or
permit to be made, any disturbance, noise or annoyance whatsoever detrimental to the premises or
the comfort and peace of the inhabitants of the vicinity of the Residential Area.
g. Caretaker agrees that the Residential Area is being licensed "as is" and that County makes no
warranty or guarantee of the condition of the Residential Area or any of the improvements.
Caretaker is fully familiar with the Residential Area.
h. Caretaker shall comply with all of the laws, rules, ordinances, and regulations of the County,
State and Federal Governments, and agencies regarding the use of the Residential Area. Violation of
any law, rule, ordinance or regulation may result in immediate termination of this Agreement.
i. The Caretaker shall pay within time allowed for payment without penalties, all charges for
water and electricity and all other public utilities which may arise from the Caretaker's use of the
Residential Area. The Caretaker agrees to hold the County harmless from any interruption in the use
and services of such commodities.
j. Caretaker shall not assign, sublease or transfer any part of this Agreement without prior
written consent of the County, which may be withheld for any reason. The County shall have the
right to assign this Agreement. This Agreement is entered into with the knowledge that Caretaker is
married and, in addition to Caretaker himself, one adult and no children shall reside in the house.
Temporary visitors are permitted. No additional residents, except for the helper, nurse or caregiver
as permitted by subparagraph f, whether permanent or temporary shall be permitted to move into the
residences during the term of the Agreement without County's written consent. Caretaker shall not
mortgage the Residential Area or any portion of the Property. The County acknowledges that the
Property has been Caretaker's home for all of his life and it is the intent of the County, through this
Caretaker Agreement, to allow Caretaker to remain on the Property pursuant to the terms and
conditions of this Caretaker Agreement. To that end, the County shall pursue all reasonable means
with Caretaker to resolve any conflicts regarding this Caretaker Agreement.
k. After the Closing on the acquisition of the Property, Indian River County intends to apply to
the Florida Bureau of Historic Preservation for designation of the existing house, homestead portion
of the Property, and the southernmost dock (herein collectively "Historic Structures") located on the
Property as a State Heritage Site. The Historic Structures may also qualify for inclusion in the
National Register of Historic Places. The Caretaker agrees to cooperate with Indian River County in
connection with: (i) the foregoing applications and (ii) obtaining and locating the associated historic
signage and markers. Seller acknowledges and agrees that each of the foregoing designations will
place certain use and other restrictions on the Historic Structures including, without limitation, those
restrictions included in the Code of Federal Regulations, Title 36, Part 68 the Secretary of the
Interior's Standards for Treatment for Historic Properties with Guidelines for Preserving,
Rehabilitating, Restoring and Reconstructing Historic Buildings, as the same may be amended from
time to time (the foregoing collectively "Historic Restrictions").
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
:Cil\:7 �Y 1►_\ C� X1.7
Date:
Richard M. Jones
COUNTY
BOARD OF COUNTY COMMISSIONERS
OF INDIAN RIVER COUNTY, FLORIDA
Bv:
Gary C. Wheeler, Chairman
ATTEST: Jeffrey K. Barton Clerk of Court
By:
Deputy Clerk
Exhibit "A"
North 16.5 acres of the South 33.0 acres of Lots 8 and 9 less 75 x 100 foot lot at NW corner.
Tax ID: # 31-39-36-00000-0080-00004.0
Lot in NW corner of N. 16.5 acres of S. 33.0 acres of Lots 8 and 9.
Tax ID: # 31-39-36-00000-0080-00005.0
EXHIBIT "D"
BENEFICIAL DISCLOSURE AFFIDAVIT
DISCLOSURE STATEMENT
(INDIVIDUAL)
The following Disclosure Statement is given in compliance with Sections 375.031(1) and 380.08(2),
Florida Statutes. The Seller states as follows:
1) That to the best of the Seller's knowledge, all persons who have a financial interest in this
real estate transaction or who have received or will receive real estate commissions, attorneys or
consultant's fees or any other fees or other benefits incident to the sale of the Property are:
Name Address Reason for Payment Amount
2) That to the best of the Seller's knowledge, the following is a true history of all financial
transactions (including any existing option or purchase agreement in favor of Seller) concerning the
Property which have taken place or will take place during the last five years prior to the conveyance
of title to the State of Florida:
Name and Address Type of Amount of
of Parties Involved Date Transaction Transaction
SELLER
FLORIDA COMMUNITIES TRUST
APPROVED AS TO FORM AND LEGALITY
By:
Date:
BENEINTLFCT
Revised 11/23/93
Exhibit "E"
Standards and Requirements for the Environmental Site Assessment
Components and scope of the environmental audit are as follows:
1. Search of recorded chain of title documents regarding the Property, including, but not limited
to all deeds, easements, leases for oil, gas, mineral, lumber, timber, turpentine rights and
agricultural purposes, and other uses, restrictions, reverters and covenants, and rights-of-way for
roads, railroads and utilities. The chain of title shall be of a sufficient length of time to account for
previous ownership and uses of the Property which are likely to have an adverse environmental
impact on the Property but in no event for a period of less than 50 years. This history shall be
summarized in chronological order from the earliest instrument to the latest instrument listing all
parties in the instrument, type of instrument and official record book and page number for each
instrument.
2. Personal interviews with prior owners, their employees and with neighboring landowners.
3. Determination of past and present uses of the Property.
4. Review of current and historical aerial photographs of the Property and surrounding area for
an evaluation of prior and current use. Copies of the photography shall be enclosed with the
environmental audit when possible.
5. Review of Soil Conservation Service surveys and United States Geological Survey
periodicals and topographic maps for soil types, ground water characteristics and general
topography.
6. Determination of existence of federal, state and local environmental clean up liens against
the Property.
7. Review of reasonably obtainable federal, state and local records of existing and potentially
contaminated sites, including site investigation reports for such contaminated sites; reasonably
obtainable federal, state and local environmental records of activities likely to have an adverse
environmental impact on the Property (including records of environmental problem sites, landfill and
other disposal site records, underground storage tank records and known hazardous waste handler
and generator records); and such other reasonably obtainable federal, state and local environmental
records which report incidents of sources of contamination on the Property.
B. Determine if prior environmental audits or assessments have been done and if so what it
disclosed.
9. Ensure that radon, asbestos and lead painttests are performed by qualified professionals on
all habitable structures that will remain on the Property after the Purchaser acquires the Property,
unless this requirement is waived by the Purchaser.
10. Property investigation requirements are as follows:
a. A visual site inspection of the Property and all facilities and improvements on the Property,
and a visual inspection of properties immediately adjacent to the Property, to determine or discover
the obviousness of the presence or likely presence of contamination on the Property (including
chemical use, storage treatment and disposal practices, past or present). This inspection shall be
conducted in such a manner that assures uniform coverage so that all of the Property is viewed.
b. Any debris, mounds, trash piles, stressed vegetation or similar features or deposits that may
indicate old dump sites shall be inspected. Other areas that demand careful examination are
sinkholes, ravines, rights-of-way, edges of fields and water courses.
c. Any areas or items of concern shall be marked on aerial photographs and/or maps, numbered
and described in the environmental audit. The degree of concern regarding hazardous materials at
these locations should be addressed.
d. Field analysis of soil and/or groundwater samples where there appears to be a presence of
potentially hazardous materials should be performed. This shall include hand augured samples and
organic vapor analysis of any suspicious areas that would warrant this testing.
11. The environmental audit report shall contain a discussion and evaluations of the relevance of
all the components listed above along with definite conclusions and specific recommendations and
include the following:
a. A discussion of the past and present uses of the Property.
b. Color photographs of the current site conditions oriented to specific locations on the site. All trash
sites on the Property or impacting the Property shall be photographed.
c. A discussion of all findings and specific conclusions regarding the site contamination
probability.
d. Recommendations for further action based upon the results of the inspection and estimated costs
if further assessment is deemed necessary.
12. The environmental audit shall be approved and certified by a professional engineer or
geologist licensed by the State of Florida.
13. The environmental audit must be certified to the Purchaser. The certification shall state the
following: (a) the date the original environmental audit was completed and the date of the update to
the environmental audit, if an update is required or necessary; (b) the environmental audit meets the
requirements of the Purchaser; (c) the accuracy, correctness and completeness of the
environmental audit is provided with the knowledge of the Comprehensive Environmental Response
Compensation And Liability Act as set forth in 42 U.S.C. Section 9601 et seq., as amended
("CERCLA"); and (d) the Purchaser is entitled to rely on the information set forth in the
environmental audit.
14. A certified copy of the environmental audit shall be delivered to the Purchaser
Exhibit "F"
FLORIDA COMMUNITIES TRUST SURVEY PROCEDURES
The following survey procedures shall be used in order that the certified survey receives a
satisfactory review and approval by the Florida Communities Trust (FCT). The survey must be
certified as meeting these procedures and minimum technical standards for land surveying (Chapter
61 G17-6, Florida Administrative Code).
1. The legal description in the current owner's deed must be reviewed by the surveyor. If
FCT/Grant Recipient is purchasing all of the property described in the current owner's deed, the
legal description on the survey must match the legal description in the current owner's deed, or, an
affidavit must be provided by the surveyor stating that the property surveyed is identical to the legal
description in the deed. If FCT/Grant Recipient is purchasing a portion of the property described in
the current owner's deed the legal description on the survey must match in form and as much as
possible in content the legal description in the current owner's deed. All recorded documents
supplied to the surveyor or secured by the surveyor must be shown on the survey drawing.
2. FCT/Grant Recipient will not acquire title to roads that are owned by the county, the state or the
federal government by virtue of a conveyance, order of taking in an eminent domain action, or
maintenance pursuant to Section 95.361, Florida Statutes. Appropriate county, state, or federal
personnel must be contacted for written documentation regarding maintenance. The written
documentation must be submitted in accordance with paragraph 13 of this document. Some
examples of language to remove the road right-of-way from the legal description are as follows:
a. Less and except that portion maintained as a county road right-of-way.
b. Less that portion of the West 35 feet of Section 10, Township 56 South,
Range 39 East, Dade County, Florida maintained as a county road
right-of-way.
The surveyor must show the limits of maintenance as a boundary line with enough geometry so that
the area of the acquisition parcel can be computed.
3. The location of water boundaries must be depicted on the final survey with bearing and
distances so that a closed traverse can be computed. The area(s) below the water boundary must
not be included within the final acreage tabulation. The methodology used for establishing the water
boundary must be indicated in a note on the final survey drawing. Surveys that require the mean
high water line to be located must be prepared in accordance with the Florida Coastal Mapping Act
of 1974, Chapter 177, Part 11, Florida Statutes and Chapter 18-5, Florida Administrative Code.
4. The accuracy of survey measurements must be substantiated by the computation of a closed
traverse; the relative error of closure permissible must be no greater than 1:10,000.
5. All land corners controlling the description of each ownership, if not found, must be set (including
block comers). Any public land Survey corner, original or purported, used in this survey must be
verified or re-established in accordance with the Manual of Surveying Instructions, 1973 (Manual),
prepared by the U.S. Department of Interior.
6. The surveyor must locate all above -ground fixed improvements and any evidence of
underground fixed improvements within the acquisition parcel.
7. Acreage must be determined for each category of land used to determine final purchase price, if
required. Examples of land categories are jurisdictional wetlands, submerged lands if owned by a
private owner and uplands. A closed traverse must be shown on the survey drawing with acreage
categories delineated in order to verify each of the areas. Each individual area of each category of
land must have the acreage written within its boundaries on the survey drawing. The number of
decimal places used should reflect the level of precision for the work performed.
8. Easements and rights-of-way, both of record and/or revealed by a field inspection of the
acquisition parcel, must be shown on the drawing and identified by the official record book and page
(if recorded) and by type of easement.
If an easement or right-of-way for ingress and egress connects the acquisition parcel to a public
right-of-way, it must be protracted and identified by the recorded document's book and page on the
survey drawing. If an access easement or right-of-way does not exist, it must be noted on the
survey drawing that there are no documents in the public records that provide ingress to and egress
from the acquisition parcel to a public right-of-way based upon research of the records by the title
company providing the title insurance.
9. Prior to closing the surveyor must review the title insurance commitment for the acquisition
parcel. The survey legal description must match the legal description in the title insurance
commitment. If the legal descriptions do not match, the surveyor must execute an affidavit stating
that the property conveyed is the same property described in the commitment. Any referenced
encumbrance, except liens, listed in Schedule B, section Il, of the title insurance commitment must
be shown with the location, dimensions, area, and character, and be identified by the book and page
of the recorded document on the survey drawing.
10. In areas where the Department of Environmental Protection's Coastal Construction Control Line
(Chapter 161, Florida Statutes) has been established, the survey must tie into existing Control Line
monuments. The Control Line and acreage landward of the Control Line must be noted on the
survey drawing. Care should be taken to assure the latest Control Line information is used (Contact
Department of Environmental Protection, Division of Beaches and Shores, 850/487-4475). Acontact
person may be located on DEP's website at www.dep.state.fl.us/beaches/.
11. The survey must be certified to Florida Communities Trust, unless waived. The date of
certification must be within 90 days before closing, unless waived by FCT and by the title insurer
for purposes of deleting the standard exceptions for survey matters and easements or claims of
easements not shown in the public records of the title policy. The date in the certification must
be revised if the survey is updated or recertified.
12. Drawing must be of appropriate size and must include the legal description of the property.
For areas too large for maximum sheet size, multiple sheets with appropriate match lines must
be used.
13. The following work products must be submitted to FCT:
A. Two paper copies of the signed and sealed final certified survey;
B. Geographic Information System data provided as a shapefile (ArcView or ArcMap), with
projection, datum, and units specified, on CD. The shapefile should contain the boundary of
the acquired parcel(s) and include in the attribute table the name of the parcel, name of the
Florida Communities Trust project, closing date(s), and deed acres.
C. Any correspondence with the state, county, or municipality regarding maintained roads.
Exhibit "G"
Kennedy Lease
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