HomeMy WebLinkAbout2010 Dabrowski Land Purchase Continuation DIY OF
SEBASTIAN
HOME OF PELICAN ISLAND
CRA AGENDA TRANSMITTAL
Subject: Agenda No.
DEBROWSKI PARCEL PURCHASE - Department Origin: City Manager
CONTINUATION City Attorney:
City Clerk:
Ap oved/ •r Submittal by:
�
/ Date Submitted: 17 MAR 10
i
A ∎ nner, City Manager
Exhibits:
EXPENDITURE REQUIRED: AMOUNT BUDGETED: APPROPRIATION REQUIRED:
Up to $750,000 $351,000 (2 Parcels) Up to$179,000
SUMMARY
At the CRA meeting on 10 March 2010,the Board considered the Option Agreement for the Dabrowski
parcel. After approximately 70 minutes of deliberation,the Board made a motion to table the matter in order
to provide more time for discussion.
Since that time, FCT has notified the City that the Option Agreement for a purchase price of$750,000 has
been executed by the Trustees.
CM'OF
SEBASTIAN
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HOME OF PELICAN ISLAND
CRA AGENDA TRANSMITTAL
Subject: Agenda No.
DABROWSKI LAND PURCHASE Department Origi P ' Ct Man. er
City Attorney: :,e
Ap•rov-% for Submittal by: City Clerk:
•
Date Submitted: 5 MAR 10
Al ner, City Manager
EXPENDITURE REQUIRED: AMOUNT BUDGETED: APPROPRIATION REQUIRED:
See Chart See Chart See Chart
SUMMARY
The City of Sebastian (CRA) has applied for and was awarded a Stan Mayfield Working Waterfront Grant
(SMWWG). In order to help prepare and plan for this project and future expenses, the City Council
adopted a Working Waterfront Committee. The Working Waterfront Committee has discussed this project
in great detail. Concurrently, the Florida Communities Trust(FCT) has been working to appraise,
purchase and close a sale for two properties along the riverfront.
The original grant sought to purchase the parcel commonly knownas the Hurricane Harbor Restaurant.
The purpose of this acquisition is to provide a micro-incubator for businesses that will support commercial
fishing. Such business enterprises would include retail fish market, ice deport, waterfront touring
museum and a place to conduct eco-tours—centering on the importance and history of the Indian River
Lagoon and commercial fishing. In researching this market plan, RFPs were submitted to solicit business
interest. Only one business responded. While the response was discouraging, in subsequent public
meetings it became clear that commercial fishing businesses were interested in the micro-incubator
concept, but would only invest in such venture if a working waterfront was secured next to Hurricane
Harbor. An offer for the Hurricane Harbor was made by FCT in an amount of$2.3 million, which was the
appraised value. The purchase is now set to close on or before June 1, 2010.
Sebastian Entertainment Center was also sought in the original SMWWG proposal. After appraisals were
returned, FCT made a purchase offer of$750,000, but the offer was rejected. As a result, the City began
investigation into the Dabrowski parcel.
By late February FCT issued an offer in the amount of$500,000 to the Dabrowski Trust. Representatives
from the Dabrowski Trust are Herb Morrison (Trustee) and attorney Steve Gutman. Negotiations for the
purchase have been difficult. The trustee represented that they have an appraisal estimating a value of
approximately$1.5 million. After initial negotiation between FCT and the trustee were not fruitful, FCT
and City negotiated with the trustees. During this round of negotiations, trustees would not move from a
counter offer of$1.3 million and pressed for a best-offer from the City. Because the City was of the
opinion that without a counter offer the negotiation would stop, an offer of$700,000 was verbally issued,
subject to Council review and approval. After this negotiation session, the trustees negotiated again with
FCT and still expressed reluctance to accept an offer of$700,000. As a result, trustees offered up to
$750,000 contingent upon City and FCT approval.
GOING FORWARD
It has become clear that acquiring actual working waterfront is vital to the projects success. Without such
parcel, it will become difficult to attract micro-business to the Hurricane Harbor parcel. Worst case
scenario is that the City purchases a parcel that has no usefulness within the allowance of the grant
because of the lack of a secured working waterfront. In my opinion, going down this path would lead to
an unsuccessful project.
However, if Dabrowski and Hurricane Harbor can be purchased, staff(and the Waterfront Committee) is
hopeful that an agreement can be reached with the Sebastian Fisherman's Landing, Inc that will lead to a
successful project. The ultimate goal is to create a working waterfront that(1) supports commercial
fishing; (2) establishes an area for commerce; and, (3) draws tourism by making museums, viewing areas
and conducting festivals. These activities would promote reinvestment in the district; the ultimate concept
for redevelopment dollars.
OPTIONS
Essentially three options are available to the City. Because Dabrowski acquisition terms are significantly
above the appraised value, the project is at a crossroad. While accepting grant money reduces local
investment, no matter the cost, the community can not ignore its fiduciary responsibility to spend local, as
well as, state tax funds wisely. Even with the strong desire to close on the project, three options should
be reviewed by the CRA Board:
1. Approve the $750,000 offer.
2. Counter offer. The City can consider a counter offer and present that to FCT for additional
negotiations. Ranges of a counter offer may be between $571,000 (which keeps the City from
additional appropriation) to $600,000 (20% over appraised value).
3. Deny the offer. There is significant financial reason to reject the offer. Should this be the
situation, the CRA should consider abandoning the project for the reasons stated in the"Going
Forward" paragraph.
SHIFTING FUNDS
In any shifted case, below is a series of four charts which demonstrate how funds should be fled and what is
available for a Dabrowski purchase in excess of$500,000.
CHART 1 -FCT DABROWSKI OFFER($750,000)
APPRAISED CITY-CRA
PARCEL VALUE FCT OFFER FCT SHARE CITY MATCH ALLOCATION
Hurricane Harbor $2,300,000 $2,300,000 $2,070,000 $230,000 $250,000
Dabrowski $500,000 $750,000 $450,000 $300,000 $101,000
TOTAL $2,800,000 $3,050,000 $2,520,000 $530,000 $351,000
Additional CRA
Allocation $179,000
FY I V I.Jfl l llV i
allablc $500,000 I
CHART 2-DABROWSKI COUNTER OFFER-CITY REMAINS REVENUE NEUTRAL($571,000)
APPRAISED CITY-CRA
PARCEL VALUE FCT OFFER FCT SHARE CITY MATCH ALLOCATION
Hurricane Harbor $2,300,000 $2,300,000 $2,070,000 $230,000 $250,000
Dabrowski $500,000 $571,000 $450,000 $121,000 $101,000
TOTAL $2,800,000 $2,871,000 $2,520,000 $351,000 $351,000
Additional CRA
Allocation $0
FY 10 CRA Available $500,000
CHART 3-DABROWSKI COUNTER OFFER-CITY ADDITIONAL ALLOCATION ($600,000)
APPRAISED CITY-CRA
PARCEL - VALUE- - FCT OFFER FCT SHARE CITY MATCH ALLOCATION--
Hurricane Harbor $2,300,000 $2,300,000 $2,070,000 $230,000 $250,000
Dabrowski $500,000 $600,000 $450,000 $150,000 $101,000
TOTAL $2,800,000 $2,900,000 $2,520,000 $380,000 $351,000
Additional CRA
Allocation $29,000;
FY 10 CRA Available $500,000
CHART 4-DABROWSKI COUNTER OFFER-APPRAISED VALUE
APPRAISED CITY-CRA
PARCEL VALUE FCT OFFER FCT SHARE CITY MATCH ALLOCATION
Hurricane Harbor $2,300,000 $2,300,000 $2,070,000 $230,000 $250,000
Dabrowski $500,000 $500,000 $450,000 $50,000 $101,000
TOTAL $2,800,000 $2,800,000 $2,520,000 $280,000 $351,000
Additional CRA
Allocation ($71,000)
FY 10 CRA Available $500,000
RECOMMENDATION
Staff recommends to the CRA Board that a counter offer between $550,000 -$600,000 be made to the
Dabrowski trust. Allocation for such a motion can be made based upon the illustrative charts above. In
addition, the CRA Board should reconvene if the offer is rejected to determine (1) another offer; or, (2)
abandonment of the Dabrowski purchase.
Project: Sebastian Working Waterfront Collaborative Contract#:
Project#: 08-003-WW1 Property Tax I.D. #: 06-31-39-00001-0010-00002.0
Parcel#: Dabrowski Trust
OPTION AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made this 15 thday of March 2010, between HERBERT V.MORRISON,
SUCCESSOR TRUSTEE OF THE HENRY J. DABROWSKI IRREVOCABLE TRUST UNDER
REVOCABLE LIVING TRUST AGREEMENT DATED JULY 17,2007,whose address is c\o Herbert V.
Morrison, Trustee, 28826 Ramblewood Drive, Farmington Hills, MI 48334-1750, as ("Seller"), and the
FLORIDA COMMUNITIES TRUST,a nonregulatory agency within the Depaitment of Community Affairs,
("Acquiring Agency")whose address is 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399, and the
CITY OF SEBASTIAN,a municipality within Indian River County,Florida,("Local Government"),whose
address is 1225 Main Street, Sebastian, Florida 32958. Acquiring Agency and Local Government will be
collectively referred to as("Purchaser").
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",together with all improvements,
easements and appurtenances("Property"),in accordance with the provisions of this Agreement. This Option
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 Acquiring Agency and Local Government give written notice of
exercise to Seller.
2. OPTION TERMS. The option payment is$100.00("Option Payment"). The Option Payment,in the
form of a state warrant,will be forwarded to Seller upon its receipt by Acquiring Agency from the Comptroller
of the State of Florida. The option may be exercised during the period beginning with the Purchaser's approval
of this Agreement and the Acquiring Agency's governing body granting project approval in accordance with
Rule 9K-9, Florida Administrative Code, and ending on June 30, 2010, ("Option Expiration Date"), unless
extended by other provisions of this Agreement. In the event Acquiring Agency's Purchase Price (as
hereinafter defined in paragraph 3.A) or Local Government's Purchase Price (as hereinafter defined in
paragraph 3.A) are not available by the Option Expiration Date the period of exercise of the option may be
extended until such funds become available,not to exceed 60 days after the Option Expiration Date,by written
notice to Seller.
3.A. TOTAL PURCHASE PRICE. The total purchase price("Total Purchase Price")for the Property is
SEVEN HUNDRED FIFTY THOUSAND and no/100 Dollars($750,000.00)which,after reduction by the
amount of the Option Payment, will be paid by Acquiring Agency and Local Government at closing. Seller
hereby authorizes Acquiring Agency to issue a state 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 expenses of sale and real estate taxes which are not reimbursable by Purchaser.This Total Purchase
Price presumes that the Property contains at least .38 acres of uplands, to be confirmed by the Survey, as
provided in paragraph 5. The Total Purchase Price shall be paid to Seller as follows:Acquiring Agency shall
pay the lesser of$450,000.00 or 90%of the final adjusted Acquiring Agency Purchase Price for the Property
as determined in accordance with paragraph 3.B.("Acquiring Agency's Purchase Price"),which after reduction
by Acquiring Agency of the Option Payment, will be paid to Seller by state warrant at closing; and Local
March 15, 2010
08-003-ww1 1
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Government shall pay$300,000.00 or the balance(remainder)of the Total Purchase Price for the Property as
determined in accordance with paragraph 3.B. ("Local Government's Purchase Price"), to Seller by Local
Government check at closing. This Agreement is contingent upon approval of Total Purchase Price,Acquiring
Agency's Purchase Price,and Local Government's Purchase Price by Purchaser and upon confirmation that the
Acquiring Agency Purchase Price is not in excess of the final maximum approved acquiring agency purchase
price of the Property as determined in accordance with Rule 9K-10.004, Florida Administrative Code
("Maximum Approved Purchase Price").
This Agreement is also contingent upon Local Government's funds for closing being available at closing and
upon Local Government giving written notice to Acquiring Agency, prior to the exercise of the option,that
these funds are available to close in accordance with this Agreement. If such notification is not accomplished,
Acquiring Agency may in its sole discretion declare this Agreement void and of no further force and effect as
of that date. Local Government's funds are the sole responsibility of Local Government. Seller shall have no
recourse whatsoever, at law or equity, against Acquiring Agency or the Property as a result of any matter
arising at any time whether before or after fee simple title is conveyed to Local Government,relating to Local
Government's funds,Acquiring Agency shall have no obligation under this Agreement to provide any portion
of Local Government's funds. Acquiring Agency's funds necessary to close are the sole responsibility of
Acquiring Agency. Seller shall have no recourse whatsoever, at law or equity,against Local Government or
the Property as a result of any matter arising at any time,whether before or after fee simple title is conveyed to
Local Government,relating to Acquiring Agency's funds. Local Government shall have no obligation under
this Agreement to provide any portion of Acquiring Agency's funds. Should Local Government's funds or
Acquiring Agency's funds not be available for any reason, Purchaser or Seller may elect to terminate this
Agreement by written notice to the parties without liability to any party.
Acquiring Agency and Local Government agree that the Local Government shall take fee simple title to all of
the Property at the closing notwithstanding that Acquiring Agency and Local Government are required to pay
all of the Total Purchase Price in the manner set forth in this Agreement. Conveyance of the Property in fee
simple from Seller to Local Government will take place at the closing, in exchange for the payments to be
made by Acquiring Agency and Local Government to Seller at closing as set forth above in this paragraph 3.A.
This Agreement is also contingent upon the simultaneous closing of that certain Option Agreement for Sale
and Purchase between Purchaser and Sebastian Harbour,Ltd.,and Dancu Holding,Inc.,for that real property
described in Exhibit "B" attached hereto.
3.B. ADJUSTMENT OF TOTAL PURCHASE PRICE. If,prior to closing,Acquiring Agency determines
that the Acquiring Agency Purchase Price stated in paragraph 3.A. exceeds the final Acquiring Agency
Maximum Approved Purchase Price of the Property,the Acquiring Agency's Purchase Price will be reduced to
the final Acquiring Agency's Maximum Approved Purchase Price of the Property. Upon determination of the
final adjusted Acquiring Agency's Purchase Price,Local Government's Purchase Price will be determined and
adjusted in accordance with paragraph 3.A.
If the final Total Purchase Price is less than 100% of the Total Purchase Price stated in paragraph 3.A.
because of a reduction in either Purchaser's 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
Acquiring Agency and Local Government of his election to terminate this Agreement within 10 days after
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08-003-WW1 2
Seller's receipt of written notice from Acquiring Agency of the final adjusted Total Purchase Price. In the
event Seller fails to give Acquiring Agency and Local Government a written notice of termination within
the aforesaid time period from receipt of Acquiring Agency'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
30 days prior to the Option Expiration Date, furnish to Local Government and Acquiring Agency 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 of the 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 Seller and the date of certification shall be within 90 days before
the date of closing. Acquiring Agency shall reimburse Seller for the Acquiring Agency approved cost of the
environmental site assessments, not to exceed $10,000.00 upon Seller's submission of the necessary
documentation to Acquiring Agency which evidences payment in full of the environmental site assessment
costs by Seller. This reimbursement is contingent upon a sale of the Property to Purchaser.
4.B. HAZARDOUS MATERIALS. In the event that the environmental site assessment provided for in
paragraph 4.A. confirms 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 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
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
("Environmental Law"). However,should the estimated cost of clean up of Hazardous Materials exceed a sum
which is equal to 2%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 Seller's sole cost and expense and not less than 35 days prior to the Option
Expiration Date, deliver to Local Government and Acquiring Agency a current boundary survey of the
Property prepared by a professional land surveyor licensed by the State of Florida which meets the standards
and requirements of Acquiring Agency ("Survey"). It is Seller's responsibility to ensure that the surveyor
contacts the Acquiring Agency regarding these standards and requirements and the cost of the Survey prior to
the commencement of the Survey. 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
March 15, 2010
08-003-WW1 3
easements claims of easements not shown by h, blic f__ i
or v iuio vi�.u��,lu�.u�n ilol Suvvvu by ills pub LGI:VI UJ from the owner's title policy. II the 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. Acquiring Agency shall reimburse Seller for
the Acquiring Agency approved cost of Survey, not to exceed $10,000.00, upon Seller's submission of the
necessary documentation to Acquiring Agency which evidences payment in full of the Survey costs by Seller.
This reimbursement is contingent upon a sale of the Property to Purchaser.
6. TITLE INSURANCE. Seller shall,at Seller's sole cost and expense and at least 35 days prior to the
Option Expiration Date, furnish to Purchaser a marketable title insurance commitment,to be followed by an
owner's marketable title insurance policy (ALTA Form "B") from a title insurance company, approved by
Acquiring Agency, 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)
unrecorded rights or claims of parties in possession,(c)survey matters,(d)unrecorded easements or claims of
easements, and (e) unrecorded mechanics' liens. Purchaser shall reimburse Seller for Seller's cost for the
owner's title insurance policy required hereunder, title search, title exam and closing fee. Purchaser's
reimbursement shall not exceed an amount which is equal to the minimum promulgated rate permitted by the
Florida Insurance Commissioner's rules and regulations. Purchaser shall not be required to reimburse Seller
until Seller has submitted the necessary documentation to Acquiring Agency which evidences payment in full
of the title insurance cost by Seller and until the final owner's title insurance policy has been received and
approved by Acquiring Agency. This reimbursement is contingent upon a sale of the Property to Purchaser.
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. 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 either: (a)accept the title as it then is with a reduction in the Total Purchase Price by an
amount determined by Acquiring Agency and acceptable to Seller, (b)accept the title as it then is with no
reduction in the Total Purchase Price, (c)extend,with the written consent of the Seller,the amount of time
that Seller has to cure the defects in title, 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 Local Government a Trustee
deed in accordance with Florida Law,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. The grantee in Seller's Trustee Deed shall be the CITY OF SEBASTIAN.
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. The deed, title, possession and lien affidavit and environmental affidavit shall be prepared on
Acquiring Agency forms which will be provided by Acquiring Agency. Acquiring Agency shall prepare
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08-003-WW1 4
Purchaser's closing statement.All prepared documents shall be submitted to Local Government and Acquiring
Agency for review and approval at least 30 days prior to the Option Expiration 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 of the 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 Option Expiration 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.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 the Local
Government 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 Local Government 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 15 days after Purchaser exercises
the option; 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 date, time and place of closing shall be set by
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 Local Government 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.
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 this Agreement. Seller shall deliver possession of the
Property to the Local Government 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.
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08-003-WW1 5
17. DEFAULT. If Seller or Purchaser defaults under this Agreement,either party may waive the default
and proceed to closing, seek specific performance, or refuse to close and elect to receive the return of any
money paid,each without waiving any action for damages,or any other remedy permitted by law or in equity
resulting from either parties default.
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.
19. RECORDING. This Agreement, or notice of it, may be recorded by Purchaser in the appropriate
county or counties with the prior written approval of all parties.
20. ASSIGNMENT. This Agreement may be assigned by Purchaser with prior written approval by Seller,
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 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.
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08-003-WW1 6
28. NOTICE. Whenever either patty 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 first
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.
THIS AGREEMENT IS INITIALLY TRANSMITTED TO THE SELLER AS AN OFFER. IF THIS
AGREEMENT IS NOT EXECUTED BY THE SELLER ON OR BEFORE MARCH 16,2010,THIS OFFER
WILL BE VOID UNLESS THE PURCHASER, AT ITS SOLE OPTION, ELECTS TO ACCEPT THIS
OFFER. THE EXERCISE OF THIS OPTION IS SUBJECT TO:(1)APPROVAL OF THIS AGREEMENT
BY PURCHASER, (2) ACQUIRING AGENCY'S GOVERNING BODY GRANTING APPROVAL IN
ACCORDANCE WITH RULE 9K-9,FLORIDA ADMINISTRATIVE CODE,(3)CONFIRMATION THAT
THE TOTAL PURCHASE PRICE IS NOT IN EXCESS OF THE FINAL MAXIMUM APPROVED
PURCHASE PRICE OF THE PROPERTY, AND (4) LOCAL GOVERNMENT AND ACQUIRING
AGENCY APPROVAL OF ALL DOCUMENTS TO BE FURNISHED HEREUNDER BY SELLER. THE
ACQUIRING AGENCY'S PERFORMANCE AND OBLIGATION TO PAY UNDER THIS CONTRACT IS
CONTINGENT UPON AN ANNUAL APPROPRIATION BY THE LEGISLATURE.
IF A SIGNED ACCEPTANCE TO THIS OFFER FROM THE CITY OF SEBASTIAN IS NOT
DELIVERED TO SELLER BEFORE APRIL,9,2010, THIS OFFER AND THIS OPTION
AGREEMENT SHALL BE NULL AND VOID.
THIS IS TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE
ADVICE OF AN ATTORNEY PRIOR TO SIGNING.
SELLER
HERBERT V. MORRISON, SUCCESSOR
TRUSTEE OF THE HENRY J.
DABROWSKI IRREVOCABLE TRUST
UNDER REVOCABLE LIVING TRUST
AGREEMENT DATED JULY 17,2007
✓VIWw�...��
Wi ness as to seller Name: HERBERT V. MORRISON,Trustee
i
26-6454787
(Witness as to Seller Trust Federal Identification No.
March 15, 2010
08-003-WW1 7
March 15, 2010
Date signed by Seller
STATE OF MICHIGAN)
)
COUNTY OF WAYNE
The foregoing instrument was acknowledged before me this 15th day of March , 2010, by
HERBERT V.MORRISON,as Trustee of HERBERT V.MORRISON,SUCCESSOR TRUSTEE OF
THE HENRY J.DABROWSKI IRREVOCABLE TRUST UNDER REVOCABLE LIVING TRUST
AGREEMENT DATED JULY 17, 2007, who is personall known to r° or who has produced a driver
license issued within the last five years as identific. 'on.
(NOTARY PUBLIC)
SEAL /Notary Public •
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires: ///i//dO/c
P.7. 40rik.tiOV
PURCHASER
LOCAL GOVERNMENT
CITY OF SEBASTIAN
By:
Witness as to Local Government Name:
Its:
Witness as to Local Government
Attest:
(Clerk or Deputy Clerk)
(OFFICIAL SEAL)
March 15, 2C10
08-003-WW1 8
rvppiuvcu as to ruwi and Legality
Date signed by Local Government
By:
Date:
STATE OF FLORIDA)
COUNTY OF INDIAN RIVER )
The foregoing instrument was acknowledged before me this day of ,2010,by
as of the CITY OF SEBASTIAN,Florida on
behalf of the Local Government. They are personally known to me.
(NOTARY PUBLIC)
SEAL
Notary Public
(Printed,Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
PURCHASER
ACQUIRING AGENCY
FLORIDA COMMUNITIES TRUST
By:
Witness as to Acquiring Agency KEN REECY
Community Program Manager
Witness as to Acquiring Agency
Date signed by Acquiring Agency
March 15, 2010
08-003-WW1 9
Approved as to Form and Legality
By:
Trust Counsel
Date:
STATE OF FLORIDA )
)
COUNTY OF LEON )
The foregoing instrument was acknowledged before me this day of ,
2010, by KEN REECY, Community Program Manager, Florida Communities Trust, on
behalf of the Acquiring Agency. He is personally known to me.
(NOTARY PUBLIC)
SEAL
Notary Public
(Printed, Types or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
March 15, 2010
08-003 WW1
10
EXHIBIT "A"
LEGAL DESCRIPTION
Beginning at the intersection of the South line of Middleton's
Subdivision and the east right-of-way line of Indian River
Drive (being a point 37.15 feet due East of the center line of
Indian River Drive), the point of beginning; thence northerly
118 degrees 41' 37" along the east right-of-way line of Indian
River Drive, a distance of 184.75 feet more or less to a concrete
monument marked X; thence run East 10 degrees North of due
East to the high water line of the Indian River, thence
Southerly along the high water line of said Indian River to a
point intersecting the Easterly projected South line of
Middleton's Subdivision and the high water line of the Indian
River; thence West to the Point of Beginning. Being a part of
government Lot 1, Section 6, Township 32 South, Range 39
East.
FINAL LEGAL DESCRIPTION WILL BE DETERMINED UPON RECEIPT AND
APPROVAL OF FINAL SURVEY AS REQUIRED IN PARAGRAPH 5
11
March 15, 2010
08-003-WW1
EXHIBIT "B"
LEGAL DESCRIPTION
FROM A POINT OF BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF GOVERNMENT LOT 2,
OF SECTION 31,TOWNSHIP 30 SOUTH,RANGE 39 EAST, INDIAN RIVER COUNTY,FLORIDA,AND THE
MEAN HIGH WATER MARK OF THE WEST BANK OF INDIAN RIVER,RUN WEST ALONG SAID SOUTH UNE
OF GOVERNMENTAL LOT 2 A DISTANCE OF 80.05 FEET,MORE OR LESS,TO THE EAST RIGHT-OF-WAY
OF OW U.S. HIGHWAY NO. 1,SAID RIGHT-OT-WAY BEING 66 FEET;THENCE RUN NORTH 25°22'WEST
ALONG SAID EAST RIGHT-OF-WAY LINE A DISTANCE OF 71.45 FEET;THENCE RUN EAST,PARAI 1 FL TO
THE SOUTH UNE OF SAID GOVERNMENTAL LOT 2,A DISTANCE OF 94.59 FEET;THENCE RUN NORTH
70°45'EAST A DISTANCE OF 132.03 FEET TO THE ESTABLISHED BULKHEAD LINE;THENCE RUN SOUTH
2S'22'EAST ALONG SAID BULKHEAD LINE A DISTANCE OF 66.43 FEET;THENCE RUN SOUTH 70°45"
WEST A DISTANCE OF 145.50 FEET TO THE POINT BEGINNING ON THE MEAN HIGH WATER LINE OF
INDIAN RIVER AND ON THE SOUTH LINE OF SAID GOVERNMENTAL LOT 2;
AND LOT I,BLOCK 2,MIDDLETON'S SUBDIVISION,RECORDED IN PLAT BOOK 2,PAGE 56,PUBLIC
RECORDS OF ST.LUCIE COUNTY,FLORIDA,AND SAID LAND NOW LYING IN INDIAN RIVER COUNTY,
FLORIDA,
AND ALSO ALL OF LOT 1,BLOCK 1,MIDDLETON'S SUBDIVISION,ACCORDING TO PLAT THEREOF
RECORDED IN PLAT BOOK 2,PAGE 56,PUBLIC RECORDS OF INDIAN RIVER COUNTY,FLORIDA LYING
EAST OF INDIAN RIVER DRIVE(OLD U.S.HWY#1)AND DESCRIBED AS FOLLOWS:
FROM A POINT BEGINNING AT THE MEAN HIGH WATER LINE OF THE WEST SHORE OF THE INDIAN
RIVER ON THE TOWNSHIP LINE BETWEEN TOWNSHIP 30 SOUTH AND TOWNSHIP 31 SOUTH,RUN
WEST ALONG SAID TOWNSHIP LINE(SAME BEING THE NORTH LINE OF SAID LOT 1,BLOCK 1,
MIDDLETON'S SUBDIVISION)A DISTANCE OF 80.05 FEET MORE OR LESS,TO THE EAST RIGHT-OF-
WAY OF INDIAN RIVER DRIVE(OLD U.S.HIGHWAY NO, 1)SAID RIGHT-OF WAY BEING 66 FEET IN
WIDTH;THENCE RUN SOUTH 25°22 EAST ALONG SAID EAST RIGHT-OF-WAY A DISTANCE OF 90 FEET;
THENCE RUN NORTH 80°00'00"EAST A DISTANCE OF 113 FEET MORE OR LESS TO THE MEAN HIGH
WATER LINE OF THE INDIAN RIVER;THENCE MEANDER THE MEAN HIGH WATER LINE IN A
NORTHWES I IRLY DIRECT ION TO THE POINT OF BEGINNING,
AND
WEST SIDE OF INDIAN RIVER DRIVE:
LOTS 2,3 BLOCK 2,MIDDLETON'S SUBDIVISION,RECORDED IN PLAT BOOK 2,PAGE 56,
PUBLIC RECORDS OF ST,LUCIE COUNTY,FLORIDA,AND SAID LAND NOW LYING IN INDIAN RIVER
COUNTY, FLORIDA.
12
March 15, 2010
08-003-WW1
ADDENDUM
BENEFICIAL INTEREST AND DISCLOSURE AFFIDAVIT
(OTHER)
STATE OF Michigan
COUNTY OF_Wayne
Before me, the undersigned authority, personally appeared _Herbert V.
Morrison this 15th day of March, 2010, who, first being duly sworn,
deposes and says:
I)That HERBERT V.MORRISON,SUCCESSOR TRUSTEE OF THE HENRY J.DABROWSKI
IRREVOCABLE TRUST UNDER REVOCABLE LIVING TRUST AGREEMENT DATED JULY
17,2007(the"Trust"),whose address is whose address is c\o Herbert V.Morrison,Trustee,28826
Ramblewood Drive,Farmington Hills,MI 48334-1750,is the record owner of the Property. The
following is a list of every"person"(as defined in Section 1.01(3),Florida Statutes)holding 5%or more of
the current beneficial interest in the Trust:
(if more space is needed,attach separate sheet)
Name Address Interest
Anna Dabrowski, David Dabrowski and Lynn Dabrowski 9225 87th Street, Vero Beach, FL 32967
Current Income beneficiaries
2) That to the best of the affiant's knowledge,all persons who have a financial interest
6 P in this real estate
transaction or who have received or will receive real estate commissions,attorney's 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
Bodman LLP 1901 St.Antoine Street 6th Floor at Ford Field attorney fees to be determined
Detroit,MI 48226
Surveyor,title company or attorney rendering title opinion,environmental studies—to be determined
March 15, 2010
O5-503-WW1 13
Detroit_990061_2
March 15, 2010
08-003-WW1 13
3) That,to the best of the affiant's knowledge,the following is a true history of all financial transactions
(including any existing option or purchase agreement in favor of affiant)concerning the Property which have
taken place or will take place during the last five years prior to the conveyance of title to the CITY OF
SEBASTIAN:
Name and Address Type of Amount of
of Parties Involved Date Transaction Transaction
Henry J.Dabrowski July 17,2007 Quit Claim Deed $10.00
and Anna Dabrowski
Husband and wife Grantors
•
Henry J.Dabrowski Revocable Living
Trust dated July 17,2007,Grantee
This affidavit is given in compliance with the provisions of Sections 286.23 and 380.08(2),Florida Statutes.
AND FURTHER AFFIANT SAYETH NOT.
AFFIANT
IAL.J..4_,,a-Ni• )11,CMJA,
HERBERT V.MORRISON,SUCCESSOR TRUSTEE OF
THE HENRY J.DABROWSKI IRREVOCABLE TRUST
UNDER REVOCABLE LIVING TRUST AGREEMENT
DATED JULY 17,2007
March 15, 2010
08-003—WW1 14
Detroit 990061 2
March 15, 2010
08-003-4,WlAJ1 14
15th
SWORN TO and subscribed before me this day of March, 2010, by HERBERT V.
MORRISON as TRUSTER .,f HERBERT V. MOT?RISON SUCCESSOR TRUSTEE OF THY
HENRY J. DABROWSKI IRREVOCABLE TRUST UNDER REVOCABLE LOVING TRUST
AGREEMENT DATED JULY 17, 2007, who is personally.town to me or who As produced a drivers
license as identification and who did take an oath.
/ i
1
Notary Public AO
(Printed,Typed or Stamped Name of Notary)
Commission No.:
My Commission Expires: //A//4W
FLORIDA COMMUNITIES TRUST
APPROVED AS TO FORM AND LEGALITY
elaNg
By' t ..1P'e$' xe
Trust Counsel )
Date: ,�� 40,7 yxj
March 15, 2010
08-003-WW1 15
Detroit 990061 2
ADDENDUM
(TRUSTEE)
A. At the same time that Seller submits the closing documents required by paragraph 9. of this
Agreement,Seller shall also submit the following to Purchaser:
1. Copies of the written trust agreement and all amendments thereto,
2. All certificates, affidavits,resolutions or other documents as may be required by Acquiring
Agency or the title insurer,which authorize the sale of the Property to Purchaser in accordance with
the terms of this Agreement and evidence Seller's authority to execute this Agreement and all other
documents required by this Agreement,and
3. Copy of proposed opinion of counsel as required below.
B. As a material inducement to Purchaser entering into this Agreement and to consummate the
transaction contemplated herein,Seller covenants,represents and warrants to Purchaser as follows:
1. Seller's execution of this Agreement and the performance by Seller of the various terms and •
'conditions hereof,including,without limitation,the execution of all agreements,notices and other
documents hereunder,have been duly authorized by the requisite trust authority.
2. This Agreement,when executed and delivered,will be valid and legally binding upon Seller and
enforceable in accordance with its terms,assuming that the Option Agreement is enforceable under the
laws of the State of Florida.
3.Neither the execution of this Agreement and the Deed to be executed hereunder by Seller,nor the
performance by it of the various terms and conditions hereto will violate the terms of the Trust
Agreement..
At the closing,Seller shall deliver to Purchaser an opinion of counsel in the form of Trustee Addendum
Exhibit No.1 attached hereto.
SELLER PURCHASER
HERBERT V. MORRISON, SUCCESSOR LOCAL GOVERNMENT
TRUSTEE OF THE HENRY J. DABROWSKI
IRREVOCABLE TRUST UNDER REVOCABLE CITY OF SEBASTIAN
LIVING TRUST AGREEMENT DATED JULY
17 2007
By N
HERBERT V. MORRISON, TRUSTEE Name:
/47412-CH- id—
1
Date Signed by' Seller Date signed by Purchaser
FLORIDA COMMUNITIES TRUST
By
KEN REECY, COMMUNITY PROGRAM MANAGER
Date signed by Purchaser
March 15, 2010
u8-003-WW1 16
Detroit 990061 2
March 15, 2010
08-003—WW1 16
TRUSTEE ADDENDUM-EXHIBIT NO.1
BODMAN LLP
6TH FLOOR AT FORD FIELD ,2010
1901 ST.ANTOINE STREET
DETROIT,MICHIGAN 48226 Florida Communities Trust City of Sebastian
313-393-7579 FA)( 2555 Shumard Oak Boulevard 1225 Main Street
313-259-7777 Tallahassee,FL 32399 Sebastian,FL 32958
Ladies and Gentlemen:
This firm is counsel to Herbert V.Morrison,as Successor Trustee of the Henry J.
Dabrowski Irrevocable Trust under Revocable Living Trust Agreement dated July
17,2007("Seller").This opinion is given pursuant to that certain Option Agreement
for Sale and Purchase dated ,2010(the"Option Agreement")between
Seller and the Florida Communities Trust and the City of Sebastian(collectively,the
"Purchaser").Capiraliled terms not otherwise defined herein having the meaning
ascribed to them in the Option Agreement.
We have reviewed executed originals(or counterparts)or photographic copies of
the following documents:
1. the Option Agreement;and
2. the Henry J.Dabrowski Irrevocable Trust under Revocable Living
Trust Agreement dated July 17,2007(the"Trust Agreement")
In connection with the foregoing,based upon our examination of the documents
above described,and review of such certificates and other documents and such
questions of law as we have considered necessary or appropriate for the purpose of
the opinions hereinafter set forth,we advise you that,subject to the assumptions,
qualifications and exceptions herein set forth,in our opinion:
1. Seller's execution of the Option Agreement and the performance by Seller
of the various terms and conditions thereof,including,without limitation,the
execution of all agreements,notices and other documents required thereunder,have
been duly authorized by the requisite trust authority.
2. The Option Agreement,[when executed and delivered],will be valid and
legally binding upon Seller and enforceable in accordance with its terms,assuming
that the Option Agreement is enforceable under the laws of the State of Florida.
3. Neither the execution of the Option Agreement and the deed to be executed
thereunder by Seller,not the performance by it of the various terms and conditions
thereto,will violate the terms of the Trust Agreement.
The foregoing opinion is expressly subject to the following qualifications:
(a) In rendering this opinion,we have assumed(i)the genuineness of all
signatures(other than those of Seller);(ii)the authenticity of all documents
submitted as originals;(iii)the conformity to original documents of all documents
submitted as certified or photostatic copies;(iv)that Seller has received the
DETROIT _1 TROY I ANN ARBOR CHEBOYGAN
March 15, 2010
08-003-WW1 17
Florida Communities Trust TRUSTEE ADDENDUM—Exhibit 1
City of Sebastian
,2010
Page 2
consideration provided for in or contemplated by the Option Agreement,the
adequacy of which also is assumed;(v)the due authorization,execution and delivery
of the Option Agreement by Purchaser;(vi)that the actions of the Purchaser
contemplated by the Option Agreement are permitted under their respective charter
documents and applicable law and will not require any authorization,consent or
approval of any government or government agency of the State of Florida or other
governmental body which has not been received or given;(vii)that the Option
Agreement is governed by Florida law;and(viii)that the factual matters,statements
and recitations contained in the documents we have examined are accurate,true and
correct.
(b) The validity and enforceability of the Option Agreement are subject to or
maybe affected by(i)applicable bankruptcy,preference,receivership,insolvency,
fraudulent conveyance or transfer,reorganization,moratorium,and other laws,rules
of court or governmental authority relating to or affecting creditors'rights
heretofore or hereafter enacted,(ii)the rights of taxing authorities or other similar
entities which may by law have priority over the rights of a secured party,(in)the
exercise of judicial discretion in accordance with general principles of equity
(regardless whether applied in a proceeding in equity or at law),(iv)concepts of
materiality,unconscionability,reasonableness,good faith and fair dealing,and(v)
the valid exercise of the constitutional powers of the United States of America and
other governmental units having jurisdiction and of the sovereign police powers
governmental units having jurisdiction.
(c) We express no opinion as to the rights of Seller in or its title to or legal or
beneficial ownership of,any property or assets,including without limitation the
Property described in the Option Agreement.
(d) We express no opinion as to the legal sufficiency or the accuracy of the
description of any item of property in the Option Agreement,including,without
limitation,the Property.
(e) This opinion is given as of the date hereof and does not cover any matters
arising at any time subsequent thereto.We disclaim any obligation to update our
opinion or advise you of any change which hereafter may be brought to our
attention.
(f) The opinions expressed herein apply only insofar as the laws of the State of
Michigan are concerned,and we express no opinion whatsoever with respect to the
possible application of the laws of any other jurisdiction(including,without
limitation,conflict of laws and choice of law issues).To the extent that any of the
documents examined by us are governed by laws other than the laws of the State of
Michigan,this opinion does not purport to extend to such matters.
This opinion is furnished to you solely in connection with the closing of the
transactions contemplated by the Option Agreement,and may not be delivered to
Deircil 9919€9
March 15, 2010
08-003-WW1
18
Florida Communities Trust TRUSTEE ADDENDUM—Exhibit 1
City of Sebastian
,2010
Page 3
or relied upon by any other person,or used,published,quoted or copied for any
other purpose,without the prior written consent of the undersigned.We are not
assuming any professional responsibility to any person other than the Purchaser by
rendering this opinion.
Very truly yours,
BODMAN LLP
By:
Stephen L.Gutman,a partner
SLG/sb
Oeirolt_eA 15582
March 15, 2010 19
08-003-ME1