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Item O8 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: December 20, 2006 Division: County Administrator Bulk Item: Yes x No Department: County Administrator Staff Contact PersonlPhone #: Tom Willi #4441 AGENDA ITEM WORDING: Approval to enter an Agreement for Sale and Purchase of the property know as Geiger Key Marina, #5 Geiger Road, Big Coppitt. ITEM BACKGROUND: Earlier this year, PBP marina, Inc. approached Monroe County about the possibility of Monroe County purchasing Geiger Key Marina. Previously, the BOCC had expressed interest in acquiring waterfront property for possible park development. PREVIOUS RELEVANT BOCC ACTION: On January 18, 2006, the BOCC granted authorization to pursue purchase of Geiger Key Marina and spend funds for appraisals. CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Direct Staff to formulate funding strategy for BOCC future consideration. TOTAL COST: BUDGETED: Yes No x COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management _ DOCUMENTA TION: Included Not Required_ DISPOSITION: AGENDA ITEM # Revised 8/06 Project: Geiger Key Marina Real Estate Identification Number: 00122160-000000 AGREEMENT FOR SALE AND PURCHASE THIS AGREEMENT (Agreement) is made this day of ,2006, between PBP Marina, Inc. a Florida Corporation (Seller), whose address is and MONROE COUNTY, FLORIDA, a political subdivision ofthe State of Florida (Purchaser), c\o Thomas Willi, County Administrator, 1100 Simonton Street, Room 2-205, Key West, Florida 33040. 1. In consideration of the mutual promises contained herein, Seller hereby agrees to sell to Purchaser the real property located in Mouroe County, Florida, described below, together with all improvements, easements, rights and appurtenances (Property), in accordance with the provisions of this Agreement. This Agreement becomes legally binding upon execution by the parties. 2. DESCRIPTION OF PROPERTY. The property which the Sellers agree to sell and the Purchaser agrees to buy pursuant to the terms of this Agreement is that property situated on Geiger Key, Mouroe County, Florida, and more particularly described as: According to Exhibit A Attached Also known as #5 Geiger Road, Key West, Florida 33040 RE# 00122160-000000 3.A. TOTAL PURCHASE PRICE. The total purchase price ("Total Purchase Price") for the Property is Four Million, Seven Hundred Thirty Thousand Dollars($4,730,000.00) which will be paid by Purchaser at closing. Seller hereby authorizes Purchaser to issue a County check or warrant directly to an escrow agent who is authorized by law to receive such payment, and who is acceptable to Purchaser, and to require the escrow agent to pay Seller's customary and agreed upon expenses of sale and real estate taxes. This Total Purchase Price presumes that the Property contains at least Eighty-one Thousand Eight Hundred Forty (81,840) square feet of land and two buildings totaling approximately Four Thousand Four Hundred Twenty-six square feet, boat docks built prior to 1954, an OSTDS, and a licensed restaurant with a 1 COP alcoholic beverage license. The Total Purchase Price is subject to adjustment in accordance with paragraph 3.B. The determination ofthe final Total Purchase Price can only be made after the completion and approval of the survey required in paragraph 5 and receipt of two (2) real estate appraisals. This Agreement is contingent upon approval of Total Purchase Price by Purchaser and upon confrrmation that the Total Purchase Price is not in excess of the final maximum approved purchase price of the Property as specified by the Board of County Commissioners for Mouroe County at an advertised meeting of the Board ("Maximum Approved Purchase Price"), which shall be determined upon receipt of two real estate appraisals as required by State law. Should Purchaser's funds not be available for any reason, including but not limited to budget allocation, Purchaser or Seller may elect to terminate this Agreement by written notice to the parties without liability to any party. Conveyance of the Property in fee simple from Seller to Purchaser will take place at the closing, in exchange for the payments to be made to Seller at closing as set forth above in this paragraph 3.A. 3.B. ADmSTMENT OF TOTAL PURCHASE PRICE. If, prior to closing, Purchaser determines that the Total Purchase Price stated in paragraph 3.A. exceeds the final Maximum Approved Purchase Price of the Property, the Total Purchase Price will be reduced to the final Maximum Approved Purchase Price of the Property. If the final adjusted Total Purchase Price is less than 100% of the Total Purchase Price stated in paragraph 3.A. because of a reduction in the Maximum Approved Purchase Price of the Property, Seller shall, in his sole discretion, have the right to terminate this Agreement and neither party shall have any further obligations under this Agreement. If Seller elects to terminate this Agreement, Seller shall provide written notice to Purchaser of his election to terminate this Geiger Key Page 1 Agreement within 10 days after Seller's receipt ofwritten notice from Purchaser ofthe final adjusted Total Purchase Price. In the event Seller fails to give Purchaser a written notice oftermination within the aforesaid time period from receipt of Purchaser's written notice, then Seller shall be deemed to have waived any right to terminate this Agreement based upon a reduction in the Total Purchase Price stated in paragraph 3.A. 4.A. ENVIRONMENTAL SITE ASSESSMENT. Seller shall, at Seller's sole cost and expense and at least 45 days prior to the date of closing, furnish to Purchaser an environmental site assessment of the Property which meets the standard of practice of the American Society of Testing Materials ("ASTM"). Seller shall use the services of competent, professional consultants with expertise in the environmental site assessing process to determine the existence and extent, if any, of Hazardous Materials on the Property. 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 Environmental Law (as hereinafter defined in paragraph 4.B.). The examination of hazardous materials contamination shall be performed to the standard of practice ofthe ASTM. For Phase I environmental site assessment, such standard of practice shall be the ASTM Practice E 1527. If the Findings and Conclusions section of the assessment reports evidence of recognized environmental conditions, then a Phase II Environmental Site Assessment shall be performed to address any suspicions raised in the Phase I environmental site assessment and to confirm the presence of contaminants on site. The environmental site assessment shall be certified to Purchaser and the date of certification shall be within 45 days before the date of closing. 4.B. HAZARDOUS MATERIALS. In the event that the environmental site assessment provided for in paragraph 4.A. confrrms the presence 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 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 applicable federal, state or local laws, statutes, ordinances, rnles, regulations or other governmental restrictions regulating, relating to, or imposing liability or standards of conduct concerning Hazardous Materials ("Environmental Law"). However, should the estimated cost of clean up of Hazardous Materials exceed a sum which is equal to 1 % of the Total Purchase Price as stated in paragraph 3.A., Seller may elect to terminate this Agreement and no party shall have any further obligations under this Agreement. 5 . SURVEY. Seller shall, at Sellers sole cost and expense and not less than 35 days prior to the Closing Date, deliver to Purchaser a current boundary survey of the Property prepared by a professional land surveyor licensed by the State of Florida. The Survey shall be certified to Purchaser and the title insurer 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. Ifthe Survey shows 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. 6. TITLE INSURANCE. Seller shall, at Sellers sole cost and expense and at least 35 days prior to the Closing Date, furnish to Purchaser a marketable title insurance commitment, to be followed by an owner's marketable title insurance policy (AL TA Form "B") from a title insurance company, insuring marketable title to the Property in the amount of the Purchase Price. Seller shall require that the title insurer delete the standard exceptions of such policy referring to: (a) all taxes, (b) uurecordedrights or claims of parties in possession, (c) survey matters, (d) unrecorded easements or claims of easements, and (e) unrecorded mechanics' liens. 7. DEFECTS IN TITLE. 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, Seller shall, within 90 days after notice from Purchaser, remove said defects in title. Seller agrees to use diligent effort to correct the defects in title within the time provided therefore, including the bringing of necessary suits. If Seller is unsuccessful in removing the title defects within said time or if Seller fails to make a diligent effort to correct the title defects, Purchaser shall have the option to: (a) accept the title as it then is with a reduction in the Total Purchase Price by an amount Geiger Key Page 2 determined by Purchaser and_agreed to by Seller, or (b) accept the title as it then is with no reduction in the Total Purchase Price, or (c) extend the amount of time that Seller has to cure the defects in title if agreed to by Seller, or (d) 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 warranty deed, 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 of record and acceptable encumbrances in the opinion of Purchaser and do not impair the marketability of the title to the Property. 9 . PREPARATION OF CLOSING DOCUMENTS. Upon execution of this Agreement, Seller shall submit to Purchaser a properly completed and executed beneficial interest affidavit and disclosure statement as required by Sections 286.23, and 380.08(2), Florida Statutes. Seller shall prepare the deed described in paragraph 8. of this Agreement, Seller's closing statement, the title, possession and lien affidavit certified to Purchaser and title insurer in accordance with Section 627.7842, Florida Statutes, and an environmental affidavit, and all other documents and instruments customary for similar transactions in Mouroe County. All prepared documents shall be submitted to Purchaser for review and approval at least 35 days prior to the Closing Date. 10. PURCHASER REVIEW FOR CLOSING. Purchaser will approve or reject each item required to be provided by Seller under this Agreement within 30 days after receipt by Purchaser of all ofthe required items. Seller will have 30 days thereafter to cure and resubmit any rejected item to Purchaser. In the event Seller fails to timely deliver any item, or Purchaser rejects any item after delivery, Purchaser may in its discretion extend the Closing Date. 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.ofthis 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 the Purchaser acquires fee title to the Property between January 1 and 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 the 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 2007; 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 60 days after receipt of documentation curing the defects, whichever is later. The parties may conduct the closing upon mutual agreement at an earlier date ifthey are satisfied that all conditions have been met prior to the date set herein. For purposes ofthe Purchaser, the determination that the conditions have been met prior to the closing date set herein shall require the County Administrator and County Attorney to sign approval of an earlier closing date and the contract need not go back before the Purchaser's governing body to reform the contract to provide the earlier closing date. 14. RISK OF LOSS AND CONDITION OF REAL PROPERTY. Seller assumes all risk ofloss 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 represents and warrants that there are no parties other than Seller in occupancy or possession of any part of the Property. Seller agrees to clean up and Geiger Key Page 3 remove all abandoned personal property, refuse, garbage, junk, rubbish, trash and debris from the Property to the satisfaction of Purchaser prior to the -Closing. 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. Seller shall deliver possession of the Property to the Purchaser at closing. 16. ACCESS. Seller warrants that there is legal ingress and egress for the Property over public roads or valid, recorded easements that benefit the Property. 17. DEFAULT. If Seller defaults under this Agreement, Purchaser may waive the default and proceed to closing, seek specific performance, or refuse to close and elect to receive the returu of any money paid, each without waiving any action for damages, or any other remedy permitted by law or in equity resulting from Seller's default. In connection with any dispute arising out ofthis Agreement, including without limitation litigation and appeals, the prevailing party_will be entitled to recover reasonable attoruey'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 disclosure statement required in paragraph 9. Seller shall indemnify and hold Purchaser harmless from any and all such claims, whether disclosed or undisclosed. The provisions of this Section 18 shall survive the Closing or, if the purchase and sale is not consummated, any termination of this Agreement. 19. RECORDING. This Agreement, or notice of it, may be recorded by Purchaser in the Official Records of Mouroe County. 20. ASSIGNMENT. This Agreement may not be assigned by either Party without the prior written consent of the other Party. 21. TIME. Time is of essence with regard to all dates or times set forth in this Agreement. 22. SEVERABILITY. In the event any ofthe provisions ofthis 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 , 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 ofthe parties. No supplement, modification or amendment to this Agreement shall be binding unless executed in writing by the parties. 25. WAIVER. Failure of Purchaser 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. AGREEMENT EFFECTIVE. This Agreement or any modification, amendment or alteration thereto, shall not be effective or binding upon any of the parties hereto until it has been executed by all of the parties hereto. 27. ADDENDUM. Any addendum attached hereto that is signed by the parties shall be deemed a part of this Agreement. Geiger Key Page 4 28. NOTICE. Whenever either party desires or is required to give notice unto the other, it must be given by written notice, and either delivered personally or mailed to the appropriate address indicated on the frrst page of this Agreement, or such other address as is designated in writing by a party to this Agreement. 29. 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 Local Government's possession of the Property. 30. CONTINGENCIES. This Agreement is contingent upon the following: 1. THIS AGREEMENT IS INITIALLY TRANSMITTED TO THE SELLER AS AN OFFER. IF THIS AGREEMENT IS NOT EXECUTED BY THE SELLER ON OR BEFORE ,200 , THIS OFFER WILL BE VOID UNLESS THE PURCHASER, AT ITS SOLE OPTION, ELECTS TO ACCEPT THIS OFFER. 2. CONFIRMATION THAT THE TOTAL PURCHASE PRICE IS NOT IN EXCESS OF THE FINAL MAXIMUM APPROVED PURCHASE PRICE OF THE PROPERTY. 3. PURCHASER'S APPROVAL OF ALL DOCUMENTS TO BE FURNISHED HEREUNDER BY SELLER. 4. THE PURCHASER'S PERFORMANCE AND OBLIGATION TO PAY UNDER THIS CONTRACT IS CONTINGENT UPON AN APPROPRIATION BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS. 5. SELLER'S RETENTION OF THE RIGHTS TO THE TRANSFER OF THE ROGO EXEMPTIONS FOR THIRTY-SIX (36) RV ALLOCATIONS AND THREE (3) RESIDENTIAL ALLOCATIONS VESTED AT THE PROPERTY, SUBJECT TO REGULATIONS IN EFFECT AT THE TIME OF THE TRANSFER OF THE EXEMPTIONS. THIS IS TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING. BALANCE OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW Geiger Key Page 5 Property Tax I.D.#: 00122160-000000 AGREEMENT FOR SALE AND PURCHASE SIGNA TURE PAGE 1 of 2 SELLERS: PBP Marina, Inc. Witness Print Name: By: Print Name And Title: Witness Print Name: STATE OF FLORIDA) COUNTY OF MONROE) The foregoing instrument was acknowledged before me this day of by . Hel she is personally known to me or produced ,200 as identification. (NOTARY PUBLIC) SEAL Notary Public (Printed, Typed or Stamped Name of Notary Public) Commission No.: My Commission Expires: Geiger Key Page 6 Property Tax I.D.#: 00126210-000000 AGREEMENT FOR SALE AND PURCHASE SIGNA TURE PAGE 2 of 2 (SEAL) PURCHASER MONROE COUNTY, FLORIDA Attest: DANNY L. KOLHAGE, CLERK By: By: Mayor Mario Di Gennaro Deputy Clerk Geiger Key Page 7 ADDENDUM #1 (IMPROVEMENTS/PURCHASER) A. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. This notice is being provided in accordance with Section 404.056(8), Florida Statutes. Purchaser may, at its sole cost and expense, have the buildings that will remain on the Property inspected and tested for radon gas or radon progeny by a qualified professional properly certified by the Florida Department of Health and Rehabilitative Services. If radon gas or radon progeny is discovered, Purchaser shall have the option to either: (a) accept the Property as it then is with no reduction in the Purchase Price or (b) terminate this Agreement, thereupon releasing Purchaser and Seller from all further obligations under this Agreement. B. Wood Destrovinq Orqanisms Inspection Report. Purchaser may, at its sole cost and expense, obtain a Wood Destroying Organisms Inspection Report made by a state licensed pest control firm showing the buildings that are to remain on the Property to be visibly free of infestation or damage by termites or other wood-destroying pests. If the report shows such infestation or damage, Purchaser shall have the option to either: (a) accept the Property as it then is with no reduction in the Purchase Price or (b) terminate this Agreement, thereupon releasing Purchaser and Seller from all further obligations under this Agreement. C. Maintenance of Improvements. Seller shall, if required by Purchaser, maintain the roofs, doors, floors, steps, windows, exterior walls, foundations, all other structural components, major appliances and heating, cooling, electrical and plumbing systems on all improvements that will remain on the Property in good working order and repair up to the date of closing. Purchaser may, at its expense, have inspections made of said items by licensed persons dealing in the repair and maintenance thereof. If the inspection reveals that any of the improvements that will remain on the Property are in need of repair, Purchaser shall have the option to either: (a) accept the Property as it then is with no reduction in the Purchase Price or (b) terminate this Agreement, thereupon releasing Purchaser and Seller from all further obligations under this Agreement. SELLERS PURCHASER MONROE COUNTY, FLORIDA By: By: Mayor Date signedby8eller------------ Date signed by Purchaser By: Date signedby Seller------ Geiger Key Page 8 EXHIBIT "A" PARCEL A: A part of Government Lot, 6, Section 26, Township 67 south, Range 26 East, on Geiger Key, Monroe County, Florida. COMMENCING at a point on the West line of Government Lot 6, Section 26, Township 67 South, Range 26 East, on Geiger Key, Monroe County, Florida, 25.12 feet South of the Northwest comer of said lot, run at right angles and East 334.27 feet to a point of intersection with the Southerly right of way line of Old State Road No. 4A, which point is the Point of Beginning of the parcel ofland being described. From said point run Southwesterly along the said right of way line 20.62 feet to a point; thence run South 140 feet, more or less, to the shore line of the Straits of Florida; thence run Easterly meandering said shore line to a point of intersection with a line parallel to and 414.27 feet East of said West line of Government Lot 6; thence run North along said parallel 130 feet, more or less, to a point of intersection with the Southerly right of way line of Old State Road No. 4A; thence run Southwesterly along the said Southerly right of way line 82.49 feet back to the Point of Beginning. ALSO Parcel b: A part of Government Lot 6, Section 26, township 67 South, Range 26 East, on Geiger Key, Monroe County, Florida. COMMENCING at the Northwest comer of Government Lot 6, Section 26, Township 67 South, Range 26 East, run east along the North line of Government Lot 6, 614.27 feet to a point, which point is the Point of Beginning of the land being described. From said Point of Beginning, continue running East along the North line of said Government Lot 6 for a distance of 120 feet; thence at a right angle run South of a distance of 110 feet, more or less, to the shoreline of the Straits of Florida; thence meander the said shoreline in a Westerly direction to a point directly South of the Point of Beginning of the land being described; thence run North for a distance of 125 feet, more or less, back to the Point of Beginning. ALSO PARCEL C: A part of Government Lot 6, Section 26, Township 67 South, Range 26 East, on Geiger Key, Monroe County, Florida. COMMENCING at the Northwest comer of Government Lot 6, Section 26, Township 67 South, Range 26 East, run east along the north line of Government Lot 6, 734.27 feet to a point, which point is the Point of Beginning of the land being described. From said Point of Beginning continue running east along the north line of said Government Lot 6 for a distance of 400.54 feet to the shoreline of the Straits of Florida; thence meander the said shoreline in a Westerly direction to a point directly south of the Point of Beginning; thence run Northerly along a line parallel to the Westerly line of Government Lot 6 back to the Point of Beginning. ALSO PARCEL D: COMMENCING at the Northwest comer of Government Lot 6, Section 26, Township 67 South, Range 26 East, on Geiger Key, Monroe County, Florida; run East along the North line of said Government lot, 6, a distance of 514.27 feet to the Point of Beginning of the parcel of land being described. From said Point of Beginning continue East 100 feet; thence at right angles and South run 130 feet, more or less, to the shore line of the Straits of Florida; thence meander the said shoreline in a Westerly direction to a point due South of the Point of Beginning; thence run North back to the Point of Beginning. ALSO PARCEL E: A part of Government Lot 6, Section 26, Township 67 South, Range 26 East, on Geiger Key, Monroe County, Florida. COMMENCING at the Northwest comer of said Government Lot 6 run East along the North line of said Lot a distance of 514.27 feet to the Point of Beginning of the parcel of land being described. From said Point of Beginning run South at right angles to the said North line a distance of 130 feet, more or less, to the shoreline of the Straits of Florida; thence run Westerly meandering the said shoreline to a point of intersection with a line parallel to and 414.27 feet East of the West line of Government Lot, 6, Section 26, township 67 South, Range 26 East; thence run North along the said parallel line 130 feet; more or less, to the Point of intersection with the Southerly right of way line of Old State Road No. 4A; thence in an Easterly direction run along the said Southerly right of way line 20.62 feet to the point of intersection with the North line of Government Lot 6; thence run East along the said North line 80 feet back to the Point of Beginning.