HomeMy WebLinkAbout2008-001Cr I �.r
c;2 4n C A - 04) G
AGREEMENT TO PURCHASE AND SELL REAL ESTATE
BETWEEN
STANLEY W. KAHN AND INDIAN RIVER COUNTY
THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ("Agreement") is
made and entered into as of the 8th day of January , 20082 by and between Indian
River County, a political subdivision of the State of Florida ("the County'), and Stanley W.
Kahn ("Seller"), who agree as follows:
WHEREAS, Stanley W. Kahn owns property located at 8325 66th Avenue, Vero
Beach, Florida. 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 66th Avenue in the nearfuture and
the road expansion will impact and affect Stanley W. Kahn'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
66th Avenue; and
WHEREAS, the County has contacted Seller and has offered to purchase a 5,343
square foot (0.123acre) parcel of property from Stanley W. Kahn to be used as right-of-way
as depicted on Exhibit "A" (the Property); and
WHEREAS, Stanley W. Kahn 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 8325 66th Avenue,
Vero Beach, Florida. and more specifically described in the sketch and legal description
1
attached as Exhibit "A", containing approximately 0.123 acres, and all improvements
thereon, together with all easements, rights and uses now or hereafter belonging thereto
(collectively, the "Property').
2. Purchase Price, Effective Date. The purchase price ("Purchase Price") for the
Property shall be established by an appraisal to be performed by an M.A.I. appraiser within
All Real Estate Appraisals who 1�s mutually agreed upon by the parties pursuant to the
V terms of the letter dated July 2'%!°2007 from Robert K. Babcock, M.A.I. to attorney William
K. DeBraal attached as Exhibit "B". Upon receipt of the Appraiser's Final Report, the
County shall pay and Seller shall accept the appraised value of the Property as the
Purchase and Sale price of the Property. The Purchase Price shall be paid on the Closing
Date. The Effective Date of this Agreement shall be the date upon which the County shall
have approved the execution of this Agreement, either by approval by the Indian River
County Board of County Commissioners at a formal meeting of such Board or by the
County Administrator pursuant to his delegated authority.
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 except as noted
in Exhibit "A"; 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
2
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.
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 priorto 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 priorto the Closing Date and thereupon neitherthe 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 receipt of the Appraiser's Final Report. 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 orforeign entity, Seller shall deliverto 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. County 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.
7.1.4 Engineering costs incurred by Seller not to exceed $2,000.00. The costs shall be
paid directly to the engineering firm.
7.1.5 Attorney's fees and costs of $ 4,000.00 or 7% of the purchase price, which ever is
greater.
7.1.6 Appraisal fees negotiated with All Real Estate Appraisals.
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
4
such proceedings.
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.
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: Stanley W. Kahn
832566th Avenue
Vero Beach, FL. 32967
If to Seller's Attorney: Raymer F. Maguire III
Fixel, Maguire & Willis
1010 Executive Center Dr.
Suite 121
Orlando, FL. 32803
If to County: Indian River County
184025 th Street
Vero Beach, FL. 32960
Attn: Land Acquisition/Pamela Stewart
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
solelyforthe 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.
5
8.8. Counterparts. This Agreement maybe executed in two or more counterparts, each
one of which shall constitute an original.
8.9.
County
County agrees to allow Seller to
Approval
Seller's
property, even though it is less than 5 acres, to construct a
Required:
This Agreement is subject to approval by the 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 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.
8.11
Grandfather Clause: The
County agrees to allow Seller to
use the remainder of
Seller's
property, even though it is less than 5 acres, to construct a
dwelling unit.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
SELLER:
By: r��� d� - By:
Stanle W. Kahn
Date Signed:
Approved as to form and legal sufficiency:
"I,
Deputy County Attorney
4N RiVERbOIJJ FLORIDA
tD,0F'_' C0UN--1YMMMISSIONERS
Chairman
Date Signed: January 8, 2008
Attest: J. K. Barton, Clerk
By
Deputy Clerk
Date Signed: t — �, o — o %
PARCEL 137 166th AVENUE
31-39-31-00000-1000-00001.3
COMMENCING AT THE NORTHEAST CORNER OF SECTION 31r TOWNSHIP 31
SOUTH. RANGE 39 EAST) THENCE RUNNING WITH THE EAST LINE OF THE
NORTHEAST QUARTER OF SAID SECTION 31 SOUTH 00°32'54" WEST A
DISTANCE OF 30 -OD FEET (BEARINGS ARE BASED ON SAID EAST LINE
OF THE NORTHEAST DUARTER OF SECTION 31r TOWNSHIP 31 SOUTH,
RANGE 39 EAST, AND ALL OTHER BEARINGS SHOWN HEREON ARE
RELATIVE THERETO) TO A.PO[NTr THENCE SOUTH 89059'48" WEST A
DISTANCE OF 25.00 FEET,THENCE, SOUTH 00032'54" WEST A DISTANCE
OF 953.21 FEET TO THE POINT OF BEGINNING:
THENCE CONTINUING SOUTH 00032'54" WEST A DISTANCE OF 342.72
FEET: TO A POINT ON THE SOUTH LINE OF A CONVEYANCE FROM PAMELA
RYALL GROVES AND R. DONALD GROVES. 'JR.. TO STANLEY W. KAHN
AND SHIRLEY KAHN, AS RECORDED AMONG THE PUBLIC RECORDS OF
INDIAN RIVER COUNTY IN OFFICIAL RECORD BOOK 1218 AT PAGE 2405:
THENCE WITH SAID SOUTH LINE OF SAID CONVEYANCE NORTH 89051'14"
WEST A DISTANCE OF 7.13 FEET: THENCE ALONG A CURVE CONCAVE TO
THE SOUTHWEST HAVING A .CHORD BEARING OF NORTH 03023'21" WEST,
THENCE ALONG SAID CURVE 'HAVING A RADIUS OF 2920.00 FEET
THROUGH A CENTRAL ANGLE OF 06648'20° AND AN ARC DISTANCE OF
346.89 FEET: THENCE RUNNING WITH THE NORTH LINE OF THE
AFORMENTIONED CONVEYANCE FROM PAMELA RYALL GROVES AND R.
DONALD GROVES, JR., TO STANLEY W. KAHN AND SHIRLEY KAHN, SOUTH
83049`27" EAST A DISTANCE OF 31.08 FEET TO THE POINT OF
BEGINNING:
CONTAINING 5343 SOUARE FEET, MORE OR LESS
ABBREVIATIONS
P.O.B.
POINT OF BEGINNING
P.O.C.
POINT OF COMMENCEMENT
O.R.8,
OFFICIAL RECORD BOOK
ESMT
EASEMENT
N
NORTH
5
SOUTH
E
EAST
W
WEST
NE
NORTHEAST
NW
NORTHWEST
SE
SOUTHEAST
U. MARTIN BURDETTE, P.S.M. 4136 DATE
NOT VALID WITHOUT THE SIGNATURE AND
RAISED SEAL OF A FLORIDA LICENSED
SURVEYOR d MAPPER
6RHE
]]966
SW SOUTHWEST
OTR QUARTER -
TWNSHP TOWNSHIP
TIIF TRUSTEES OF THE
INTERNAL IMPROVEMENT FUND
PG PAGE
LT. LEFT
RT. RIGHT
EXIST. EXISTING
R/W R16HT OF WAY
50. FT.SOUARE FEET
NOT A SURVEY
INDIAN, RIVER COUNTY
NIDHT.OF WAY MAPPING
RIGHT OF WAY PARCEL SKETCH
66th AVENUE
xumx vuwc*rz. Rs.uag6 amsiw EXHIBIT
H 1
m---I....arco or WE
70 SMC
SHEET I OF ]
A umn•m
c.uN win
M. n Tnf:
RANGE 39
Rcnvw I or Ian
GGth AVENUE
C.R. 510
S 870Ol'34" E 1 91 .
J
o-
r
w
BEARINGS SHOWN HEREON ARE BASED
ON THE FLORIDA STATE PLANE
tODROINATE SYSTEM EAST ZONE
NORTH AMERICAN DATUM OF 1907//999
READJUSTMENT. THE EAST LINE OF
SECTION 31, TOWNSHIP 31 SDUTH,
AUG 79 EAST. BEARS
NOO`32'54"E AND ALL BEARINGS SHOWN
HEREON ARE RELATIVE THERETO
NOT A SURVEY
O
INDIAN RIVER COUNTY
RIOHY OF Why p1APPING
RIGHT OF WAY PARCEL SKETCH
6,6th AVENUE
Ar wic a mno AT o.ss
R
2 OF 3
rn
3
ai
I
N
3
�
n
to i
M
I3
m
o
V
r
Q
I p
N
!
I o
I
CD
M
Ll�i
a
W
U
a
I
o
n
o
1<
LJ..I
O
�
N
z
LJ
LL
a
I
%
C
co
2
MATCH
LINE
Rcnvw I or Ian
GGth AVENUE
C.R. 510
S 870Ol'34" E 1 91 .
J
o-
r
w
BEARINGS SHOWN HEREON ARE BASED
ON THE FLORIDA STATE PLANE
tODROINATE SYSTEM EAST ZONE
NORTH AMERICAN DATUM OF 1907//999
READJUSTMENT. THE EAST LINE OF
SECTION 31, TOWNSHIP 31 SDUTH,
AUG 79 EAST. BEARS
NOO`32'54"E AND ALL BEARINGS SHOWN
HEREON ARE RELATIVE THERETO
NOT A SURVEY
O
INDIAN RIVER COUNTY
RIOHY OF Why p1APPING
RIGHT OF WAY PARCEL SKETCH
6,6th AVENUE
Ar wic a mno AT o.ss
R
2 OF 3
r
\ yy 4
I 3
lIN � o
P.O..
70.
25,0 (RT.I
CH @ o MATCH LINE
s
iLT.) - __
274.36'
ORB 1218
PG 2405
O
U
tirANA
R=2920.00'
-13E CANAL -
A •06° 48'20"
(LT.I
w
,L•396.84'
a
OF WAY
P
�
ZEE
S
g s
Q
o
3 �,a
pO WK�
�m
n o
x
NOT A SURVEY
n
x
�
INDIAN RIVER COUNTY
W
W
RMT OF 11AV MAePINo
RIGHT
OF WAY PARCEL SKETCH
N
66th AVENUE
Q
F
va<
veeurto n ....
H
O
Z
1
N 89'51414" W 296.87'
165¢InC
LULL Urw
N. LL S1994
66th AVENUE
PARCEL 11
Z
O
U
tirANA
-13E CANAL -
w
MRIGHT
OF WAY
o
�
ZEE
I
x
NOT A SURVEY
INDIAN RIVER COUNTY
RMT OF 11AV MAePINo
RIGHT
OF WAY PARCEL SKETCH
66th AVENUE
er
va<
veeurto n ....
a•ni mi e. od+L
SCALE
ET 3 OF 3
i
- LLAHIDIT
July 12, 2007
William K. DeBraal, Esquire
Assistant County Attorney
Indian River County
1840 2e Street
Vero Beach, FL 32960-3328
RE: Indian Rived66ih Avenue (SR 60 to CR 510)
Parcel 137
Stanley W. Kahn and Shirley Kahn, Owners
8325 6& Avenue, Vero Beach, FL 32967
Dear Attorney DeBraal:
As we discussed last week, All Real Estate Appraisals is pleased to provide appraisal services for Indian
River County, In the above referenced appraisal assignment, we recommend a before and after analysis
of the property. The purpose of this analysis is to test the potential for a loss of value associated with a
loss of yard utility resulting from the proposed right of way acquisition. According to a survey provided by
Mr. Kahn, the primary residential improvements are situated 96.57 feet from the existing right of way.
According to the information provided by the County, the proposed right of way will be between 65 to 70
feet from the improvements. This loss of yard area and reduced improvement setback may have an
adverse impact upon the remainder, representing a severance damage. The before and after analysis
proposed for this property would address this potential, quantifying any damages associated with this loss
of yard area. This severance would become part of the recommended compensation, along with
estimated market value for the land and improvements being acquired and any costs to cure appropriate
for the remainder. This type of analysis is typical for residential properties influenced by relatively deep
right of way acquisitions, such as the one affecting the subject
Also as we discussed, it would be helpful for the County to arrange a field staking of the proposed right of
way line, along with an engineer's opinion of the distance between the new right of way line and the
primary residential improvements. Since the Kahn survey uses the distance from the improvement to the
existing right of way, the County's data could reflect a similar measurement—to the new right of way line.
Alternatively, we would ask the County's engineer to provide data relating to the distance from the
existing improvements to the existing and proposed edge of pavement. The distance would represent the
shortest distance from the improvements to the right of way line or edge of pavement. This distance data
is critical to application of the loss of yard utility study required to analyze any potential severance
damages to the remainder. It is my understanding we would coordinate with the County with respect to
the timing of the field surveying so the surveying markers would be "fresh" upon our site visit. A tentative
timetable would consider a site visit during the first week in August 2007.
Appraisers ♦ Consultants ♦ Realtors®
1010 Executive Center Drive, Suite 132
Orlando, Florida 32803
Phone: 407.895.9999 Fax: 407.895.9998
Mr. William K. DeBraal, Esquire
July 12, 2007
Page 2
The fee for conducting and reporting the before and after analysis would be $5,500. Three "originals" of
the narrative appraisal would be provided to the County. Updating the appraisal for an Order of Taking
hearing or other consulting would be negotiated at the time of need.
Thank you for selecting All Real Estate Appraisals for a portion of the County's appraisal needs. If we
may be of further assistance, or if you have any questions about this proposal, feel free to contact me.
Sincerely,
All Real Estate Appraisals
Robert K. Babcock, MAI
State -Certified General Appraiser RZ 990
Director of Eminent Domain Valuation
ALL REAL ESTATE APPRAISALS
Appraisers ♦ Consultants ♦ Realtors®
1010 Executive Center Drive, Suite 132
Orlando, Florida 32803
Phone: 407.895.9999 Fax: 407.895.9998