2013-03ORDINANCE NO. 2013-03
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA APPROVING THE SALE AND PURCHASE
AGREEMENT BETWEEN THE CITY OF AVENTURA AND
PRESIDENTIAL AVENTURA PROPERTIES, LLC FOR
THE SALE OF CITY REAL PROPERTY; AUTHORIZING
THE CITY MANAGER TO EXECUTE THE SALE AND
PURCHASE AGREEMENT AND TO EXECUTE ANY
DOCUMENTS NECESSARY TO EFFECTUATE THE SALE
AND CLOSING OF THE CITY REAL PROPERTY;
PROVIDING FOR IMPLEMENTATION OF
TRANSACTION; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City Commission desires to sell and convey a parcel of City owned land
consisting of approximately 16,490 square feet and located westerly of the intersection of N.E.
213th Street And Biscayne Boulevard (the "City Parcel "), which has been found to be surplus and
not needed for City purposes, subject to the terms and conditions of the Sale and Purchase
Agreement between the City of Aventura and Presidential Aventura Properties, LLC, a Florida
limited liability company (the "Agreement ") attached hereto as Exhibit "A "; and
WHEREAS, the City Commission finds that the approval of the Agreement is in the best
interest of the City.
NOW, THEREFORE, IT IS HEREBY ORDAINED BY THE CITY COMMISSION
OF THE CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. That the recitals set forth above are hereby adopted and
confirmed.
Section 2. Sale and Purchase Agreement Approved; Transaction Authorized.
A. That pursuant to City Charter Section 4.03(7), the Agreement attached hereto as
Exhibit "A" is hereby approved, and the sale and conveyance of the City Parcel is hereby
authorized.
B. That the City Manager is authorized to execute the Agreement, in substantially
the form which is attached hereto, the City's deed or instrument of conveyance, the closing
papers, and all other necessary documents to effectuate the sale and closing of the City Parcel,
including, but not limited to, an instrument to provide for the public right -of -way dedication of
the adjacent parcel which is described in the Agreement, once approved by the City Attorney as
to form and legal sufficiency.
C. That the City Manager and City Attorney are hereby authorized to take any action
which is necessary to implement the sale and closing of the transaction and to enforce the
Agreement and all matters related thereto.
Section 3. Effective Date. That this Ordinance shall be effective immediately upon
adoption on second reading, and shall supersede Ordinance No. 2008 -04 concerning the City
Parcel.
The forgoing Ordinance was offered by Vice Mayor Luz Weinberg, who moved its
adoption on first reading. This motion was seconded by Commissioner Joel, and upon being put
to a vote, the vote was as follows:
Commissioner Enbar Cohen
yes
Commissioner Teri Holzberg
yes
Commissioner Billy Joel
yes
Commissioner Michael Stern
yes
Commissioner Howard Weinberg
yes
Vice Mayor Luz Urbaez Weinberg
yes
Mayor Susan Gottlieb
yes
The foregoing Ordinance was offered by Vice Mayor Luz Weinberg, who moved
its adoption on second reading. This motion was seconded by Commissioner Cohen and
upon being put to a vote, the vote was as follows:
Commissioner Enbar Cohen
yes
Commissioner Teri Holzberg
yes
Commissioner Billy Joel
yes
Commissioner Michael Stern
yes
Commissioner Howard Weinberg
yes
Vice Mayor Luz Urbaez Weinberg
yes
Mayor Susan Gottlieb
yes
PASSED AND ADOPTED on first reading this 5th day of March, 2013.
PASSED AND ADOPTED on second reading this 21" day of March, 2013.
usan Gottlieb, ayor
ATTEST:
resa M. So ok , C
ity Clerk
Approved as to Form and Legal Sufficiency::
I
City Attorney
EXHIBIT "A"
SALE AND PURCHASE AGREEMENT
SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT (this "Agreement ") is made and
entered into as of the day of , 2013, by and between the CITY OF
AVENTURA, a Florida municipal corporation, (the "Seller ") and PRESIDENTIAL
AVENTURA PROPERTIES, LLC, a Florida Limited Liability Company (the "Purchaser ").
RECITALS
1. Seller is the owner of certain real property containing approximately 16,490
square feet located in the City of Aventura, Miami -Dade County, Florida, as legally described
and depicted on Exhibit "A" attached hereto and made a part hereof (hereinafter the "Property"
as defined in Section 1.14 herein below).
2. Seller is also the owner of the adjacent parcel of real property to the north of the
Property containing approximately 9,145 square feet located in the City of Aventura, Miami -
Dade County Florida, as legally described and depicted on Exhibit "B" attached hereto and made
a part hereof (hereinafter the "Access Parcel" as defined in Section 1.1 herein below).
3. Purchaser desires to purchase, and Seller desires to sell the Property, upon the
terms and conditions hereinafter set forth. Purchaser's development and use of the Property
requires Site Plan Approval in order to permit development of the Property as office use.
4. In connection with Purchaser's purchase and use of the Property, Seller will
concurrently with the Closing of the Property and subject to the terms and conditions herein set
forth, dedicate the Access Parcel as public right -of -way in order to provide the Property with
access and ingress and egress to and from Biscayne Boulevard and for the future westerly
expansion of N.E. 213 Street.
5. As a condition of development of the Property and Site Plan approval, Purchaser
will, at its sole cost and expense, install, construct and maintain on the Access Parcel an access
road and/or driveway and connections in accordance with the sketch attached hereto and made a
part hereof as Exhibit "C" (hereinafter the "Access Road Improvements" as defined in Section
1.2 herein below), and shall obtain, at its sole cost and expense, all required permits and
approvals for such Access Road Improvements from the Florida Department of Transportation
( "FDOT ") and Miami -Dade County, Florida, with all final plans for the access road to be
approved by Seller. Any changes or modifications to Exhibit "C" attached hereto shall require
the prior approval of FDOT, Miami -Dade County and Seller.
6. Purchaser will convey and/or dedicate the Access Road Improvements on the
Access Parcel to Seller as public right -of -way improvements. Purchaser shall, at its sole cost and
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expense, maintain the Access Road Improvements until such time as the future westerly
extension of N.E. 213 Street is constructed.
7. Purchaser shall, at its sole cost and expense, obtain all required permits and
approvals from FDOT and Miami -Dade County, Florida for the installation and construction of
the Access Road Improvements and driveway and connections on the Access Parcel, and for the
installation of a new mast arm at the easterly limit of N.E. 213 Street/Biscayne Boulevard
intersection, as shown on the sketch attached hereto as Exhibit "C ", including all required or
necessary signalization and other improvements or facilities as may be required by FDOT or
Miami -Dade County, Florida for the efficient and proper functionality of the intersection.
8. Seller intends at a future date to construct or have constructed a westerly
extension to N.E. 213 Street, which extension will provide access to the Property. Upon the
construction of the westerly extension of N.E. 213 Street providing access to and from the
Property, the ingress and egress from N.E. 213 Street shall be limited to right -in and right -out
only.
NOW, THEREFORE, for and in consideration of the mutual covenants and promises
contained herein and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser and Seller agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement, each of the following
terms, when used herein with an initial capital letter, shall have the following meaning:
1.1 Access Parcel. The real property consisting of approximately 9,145 square feet
adjacent to and north of the Property as more particularly described on Exhibit `B" attached
hereto and incorporated herein by reference, to be dedicated by Seller as public right -of -way
concurrently with the Closing of the Property and in accordance with the terms and conditions
set forth in this Agreement, in order to provide access and ingress and egress to and from the
Property and Biscayne Boulevard.
1.2 Access Parcel Improvements. The improvements and facilities required to be
installed, constructed and maintained by Purchaser on the Access Parcel, at its sole cost and
expense, for the purpose of providing access and ingress and egress to and from the Property to
Biscayne Boulevard, including an access road, driveways(s) and driveway connections to
Biscayne Boulevard, in accordance with the sketch attached hereto and made a part hereof as
Exhibit "C ". The Access Road Improvements shall also include, at the sole cost and expense of
the Purchaser, the installation and construction of a new mast arm at the easterly limit of the N.E.
213 Street and Biscayne Boulevard intersection, and all required or necessary signalization and
other improvements or facilities as may be required by FDOT and Miami -Dade County, Florida
for the efficient and proper functionality of the intersection.
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1.3 Business Day. Monday through Friday excluding bank holida s on which
national banking associations are authorized to be closed.
1.4 Closin . The Closing and consummation of the purchase and sale of the Property
as contemplated by this Agreement.
1.5 Closing Date (or Date of Closing). The date upon which Closing occurs.
1.6 Condemnation Proceeding. Any proceeding or threatened proceeding in
condemnation, eminent domain or written request in lieu thereof.
1.7 Deed. The special warranty deed of conveyance of the Property from Seller to
Purchaser.
1.8 Earnest Money. The funds to be paid by Purchaser to Escrow Agent pursuant to
Section 3 hereof, plus any interest earned thereon.
1.9 Effective Date. The date when the last one of Seller or Purchaser has signed and
initialed all changes to this Agreement. The parties acknowledge that Seller's execution of this
Agreement shall occur immediately subsequent to approval of this Agreement by the City
Commission.
1.10 Escrow Agent. Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.
1.11 Owner's Title Policy. An Owner's marketability policy of title insurance on the
most current ALTA Form for the Property in the amount of the Purchase Price, and containing
such additional endorsements permitted under Florida title insurance regulations as reasonably
requested by Purchaser.
1.12 Permits. All consents, notices of completion, environmental and utility permits
and approvals authorizations, variances, waivers, licenses, permits, certificates and approvals
from any governmental authority or quasi - governmental authority issued or granted with respect
to the Property and the Access Parcel now or prior to Closing.
1.13 Person. Any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, institution, entity, party or government
(whether national, federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department thereof).
1.14 Property. The real property more particularly described on Exhibit "A" attached
hereto and incorporated herein by reference consisting or approximately 16,490 square feet and
appurtenant easements thereto, together with all of Seller's right, title and interest in and to all
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easements, rights of way, strips and gores of land, tenements, hereditaments and appurtenances,
reversions, remainders, privileges, licenses and other rights and benefits belonging to, running
with or in any way relating thereto; together with all right, title and interest of Seller (if any) in
and to any land lying in the bed of any street, road or highway, open or proposed, in front of,
abutting or adjoining the Property.
1.15. Purchaser. Presidential Aventura Properties, LLC, a Florida limited liability
company, Attention Mark Gordon, Manager. Purchaser's mailing address is 2875 Northeast
191St Street, Suite 400, Aventura, Florida 33180. Telephone: (305) ; Telecopier:
(305)
1.16 Purchaser's Attorney. Fromberg, Perlow & Kornik, P.A. Attention: Gary Ian
Nesbitt, Esq. Purchaser's Attorney's mailing address is 18901 Northeast 291h Avenue, Suite 100,
Aventura, Florida 331801. Telephone: (305) 933 -2000; Telecopier: (305) 936 -0101.
1.17 Seller. City of Aventura, Attention: City Manager. Seller's mailing address is
19200 West Country Club Drive, Aventura, Florida 33180. Telephone: (305) 466 -8910;
Telecopier: (305) 466 -8919.
1.18 Seller's Attorney. Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.
Attention: Lillian M. Arango, Esq. Seller's Attorney's mailing address is 2525 Ponce de Leon
Boulevard, Suite 700, Coral Gables, Florida 33134. Telephone: (305) 854 -0800; Telecopier:
(305) 854 -2323.
1.19 Seller- Caused Monetary Lien. Any lien, monetary judgment, past due tax or
assessment or other similar encumbrance of a monetary nature against the Property or any portion
of the Property evidencing a monetary obligation created by or through Seller.
1.20 Survey. A survey of the Property prepared by a licensed surveyor in the State of
Florida, certified as meeting the minimum standards for survey in the State of Florida. The
Survey shall (i) show the square footage and acreage of the Property, (ii) show the location of any
utility and other lines and easements, either visible or recorded, and the recording references of
all the recorded easements shown on the Title Commitment, (iii) show the elevation and flood
zone information, and (iv) contain such other items as may be reasonably required by Purchaser.
1.21. Termination Date. The date which is forty five (45) days after the Effective
Date.
1.22 Title Commitment. The commitment for title insurance to be obtained by
Purchaser pursuant to Section 5 below.
1.23 Title Company. A title insurance company licensed to write title insurance in
the State of Florida which is selected by Purchaser.
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SECTION 2. PURCHASE AND SALE. Purchaser shall purchase the Property from
Seller, and Seller shall sell, convey, transfer and assign the Property to Purchaser, subject to and
in accordance with the terms and conditions of this Agreement.
SECTION 3. EARNEST MONEY. Upon the Effective Date, Purchaser shall deposit
in escrow with the Escrow Agent the sum of One Hundred Thousand and 00 /100 Dollars
($100,000.00) as Earnest Money, to be delivered to Seller at Closing and applied as a credit
against the Purchase Price (as defined below) at Closing. Escrow Agent shall hold and disburse
the Earnest Money in accordance with the terms of this Agreement. Any interest earned on the
Earnest Money shall accrue to the benefit of Purchaser, unless the Earnest Money is delivered to
the Seller as liquidated damages pursuant to Section 16 herein below, in which event such
interest shall accrue to the benefit of Seller and be delivered to Seller as part of the Earnest
Money. Purchaser and Seller agree to sign all forms and reports reasonably required in
connection with the holding and investing by Escrow Agent of the Earnest Money. For purposes
of reporting any earned interest with respect to the Earnest Money, Purchaser and Seller shall
provide Escrow Agent with their respective Federal Tax Identification numbers.
SECTION 4. PURCHASE PRICE. The purchase price for the Property is One
Million One Hundred Thousand and 00 /100 Dollars ($1,100,000.00) (the "Purchase Price "). The
entire Purchase Price, less the amount of the Earnest Money and subject to adjustments and
prorations as herein provided, shall be due and payable by wire transfer, in immediately available
funds at Closing.
SECTION 5. TITLE; SURVEY. Title to the Property shall be good and marketable
and insurable fee simple title in the amount of the Purchase Price. Seller shall deliver such
affidavits and agreements as may be reasonably required by the Title Company in order to issue
the Owner's Title Policy in accordance with this Agreement.
5.1 Examination of Title. Purchaser may obtain, at Purchaser's expense, an ALTA
title insurance commitment (the "Title Commitment ") issued by the Title Company covering the
Property pursuant to which the Title Company agrees to issue the Owner's Title Policy to
Purchaser. The cost of the Title Commitment (including all title search, examination and
document preparation fees) and the Owner's Title Policy (and any simultaneous issue to a
mortgagee and all endorsements) shall be paid by Purchaser.
5.2 Survey. At Purchaser's option, Purchaser may obtain the Survey. The cost of the
Survey shall be paid by Purchaser.
5.3 Permitted Exceptions. The sale of the Property shall be subject to the following:
5.3.1 The lien of all ad valorem real estate taxes and assessments for the
tax year in which Closing occurs, subject to proration as herein
provided, and subsequent years;
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5.3.2 All laws, ordinances, and governmental regulations, including but
not limited to, all applicable building, zoning, land use and
environmental ordinances and regulations; and
5.3.3 Any items shown on the Title Commitment to which Purchaser
does not object and those title objections waived by Purchaser in
accordance with Section 5.4 below.
5.3.4 All matters shown on the Survey, including all existing easements
and facilities located on the Property as of the Effective Date of
this Agreement.
The above items described in this Section 5.3 are herein collectively referred to as the
"Permitted Exceptions."
5.4 Objections to Title and Survey. Purchaser shall be entitled to object to any
exceptions to title disclosed in the Title Commitment and/or matters shown on the Survey that
render title unmarketable within thirty (30) days of the Effective Date, by written notice to Seller.
In the event that Purchaser shall so object to the Title Commitment and/or the Survey, Seller
shall have thirty (30) days after receipt of such notice to attempt to cure Purchaser's objections or
advise Purchaser it is unwilling to do so. In the event Seller is unwilling or unable to so cure
such objections, Purchaser may (i) waive such objections, or (ii) terminate this Agreement by
written notice to Seller, in which event the Earnest Money shall be immediately returned to
Purchaser and neither Purchaser nor Seller shall have any further obligations hereunder, except
obligations that expressly survive the termination of this Agreement.
5.5 Cure of Seller- Caused Monetary Liens. Notwithstanding Section 5.4 above, if
the Title Commitment reveals the existence of a Seller- Caused Monetary Lien, then Seller shall
pay any amount due in satisfaction of each such Seller - Caused Monetary Lien as to the Property
only (or, subject to Purchaser's reasonable approval, otherwise cause the same to be removed as
an exception in the Title Commitment) which amount, at the option of Seller, may be paid from
the proceeds of the Purchase Price at Closing. Notwithstanding the foregoing, if the amount of
the Seller Caused Monetary Lien, either individually or in the aggregate, exceeds Twenty Five
Thousand and 00 /100 Dollars ($25,000.00) (the "Cure Limit "), Seller shall have the right, in
Seller's sole discretion, within fifteen (15) days after receipt of Purchaser's title objection notice
as set forth in Section 5.4 to advise Purchaser as to whether it will pay the amount in excess of
the Cure Limit necessary to satisfy the Seller- Caused Monetary Lien. If Seller elects not to pay
the amount in excess of the Cure Limit, Purchaser shall have the options (on the same terms and
conditions) as set forth in Section 5.4 (i) and (ii) above.
5.6 Purchaser's Right to Terminate. If any title matter other than a matter disclosed
in the Title Commitment or the Survey arises or becomes known to Purchaser subsequent to the
date of the Title Commitment (a "New Title Matter ") and such New Title Matter (a) is a Seller -
Caused Monetary Lien, or (b) was created or consented to by Seller, then Seller shall cure the
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New Title Matter up to the Cure Limit, at Seller's expense, on or before Closing. If the New
Title Matter is not a Seller- Caused Monetary Lien or was not created or consented to by Seller,
then Seller shall have until the earlier of (i) five (5) Business Days of Seller's receipt of written
notice thereof or (ii) the Closing Date, within which to cure the same, and if such New Title
Matter is not cured within such period, then Purchaser may, at its sole option, exercised by
written notice to Seller within five (5) Business Days following the expiration of the five (5)
Business Day cure period, either (i) terminate this Agreement and receive a refund of the Earnest
Money or (ii) elect to close subject to such New Title Matter. In the event of termination, neither
party hereto shall have any further rights, obligations or liabilities hereunder except to the extent
that any right, obligation or liability set forth herein expressly survives termination of this
Agreement.
SECTION 6. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants to Purchaser and covenants and agrees with Purchaser, on and as of the
date hereof, to be certified to Purchaser on or as of the Closing, as follows:
6.1 Power and Authority. Seller has all necessary power to execute and deliver this
Agreement and perform all its obligations hereunder. The execution, delivery and performance
of this Agreement by Seller (i) has been duly and validly authorized by all necessary action on
the part of Seller, and (ii) does not conflict with or constitute a breach of, or constitute a default
under, any contract, agreement or other instrument by which Seller or the Property is bound or to
which Seller is a party.
6.2 Parties in Possession. Other than Seller, there are no parties in possession of any
portion of the Property as lessees or tenants.
6.3 AS -IS. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER
HAS MADE NO REPRESENTATIONS OR WARRANTIES AS TO THE QUANTITY,
QUALITY OR CONDITION OF THE PROPERTY, THE SUITABILITY OF THE
ZONING THEREOF, OR THE AVAILABILITY OF PERMITS RELATING
THERETO, AND THAT PURCHASER IS NOT RELYING UPON ANY ORAL OR
WRITTEN REPRESENTATION OR INDUCEMENT THAT MAY HAVE BEEN MADE
BY SELLER OR SELLER'S REPRESENTATIVES, AGENTS OR EMPLOYEES WITH
RESPECT TO THE QUANTITY, QUALITY OR WITH RESPECT TO THE PRESENT
OR FUTURE CONDITION, ENVIRONMENTAL OR OTHERWISE, ZONING OR
PERMITTING OF SAID PROPERTY. PURCHASER ACKNOWLEDGES AND
AGREES THAT THE CONVEYANCE OF THE PROPERTY IS "AS IS" WITHOUT
ANY WARRANTY OR REPRESENTATION FOR ANY OTHER PURPOSE, EXPRESS
OR IMPLIED.
6.4 Survival. Except for Section 6.3, the foregoing representations and warranties of
Seller in this Section 6 shall not survive the Closing or termination of this Agreement.
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SECTION 7. PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Purchaser represents and warrants to Seller that the following facts and conditions exist and are
true as of the date hereof and shall exist and be true as of the date of the Closing.
7.1 Organization; Power; and Authority. Purchaser is validly formed limited
liability company in good standing organized and existing under the laws of the State of
Delaware and has all requisite power and authority to purchase the Property and to enter into and
perform its obligations hereunder. The execution, delivery and performance of this Agreement
by Purchaser (i) has been duly and validly authorized by all necessary action on the part of
Purchaser, and (ii) does not conflict with or constitute a breach of, or constitute a default under,
any contract, agreement or other instrument by which Purchaser is bound or to which Purchaser
is a party.
SECTION 8. SELLER'S COVENANTS. From and after the date hereof, through and
including the Closing Date, Seller agrees as follows:
8.1 Maintenance Prior to Closing. Between the date of this Agreement and the
Closing Date, Seller shall maintain the Property, committing or permitting no waste thereto, such
that at the time of the Closing, the Property shall be in substantially the same physical condition
as on the date of Seller's execution of this Agreement
8.2 Notices. Seller shall, promptly upon Seller's obtaining knowledge thereof,
provide Purchaser with a written notice of any event which has a material adverse effect on the
physical condition of the Property.
8.3 Notices of Violation. Promptly after Seller obtains actual knowledge or upon
receipt of written notice thereof, Seller has provided or shall provide Purchaser with written
notice of any violation of any legal requirements affecting the Property, any service of process
relating to the Property or which affects Seller's ability to perform its obligations under this
Agreement.
SECTION 9. PURCHASER'S DUE DILIGENCE AND INSPECTION OF
PROPERTY
9.1 Inspection of Property; Access. Purchaser shall have forty five (45) days from
the Effective Date to conduct any and all inspections which Purchaser desires to conduct, in order
to determine the feasibility of the Property for Purchaser's intended purpose (the "Inspection
Period "). Purchaser or its appointed agents or independent contractors shall have, at all
reasonable times during the Inspection Period, the privilege of going upon the Property, at
Purchaser's sole cost and expense, to inspect, examine, test, investigate, appraise and survey the
Property, including, without limitation, soils and environmental tests and inspections. In
exercising the privileges granted pursuant to this subsection 9.1, Purchaser shall substantially
restore the Property to the condition existing prior to such activities on the Property. Purchaser
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agrees to indemnify, defend and hold Seller harmless from any actions, suits, liens, claims,
damages, expenses, losses and liability for damage of any kind arising from or attributable to any
acts performed by Purchaser or its appointed agents or independent contractors in exercising
Purchaser's inspection rights under this subsection 9.1, including reasonable attorneys' fees and
costs. Purchaser hereby further agrees to defend, indemnify and hold Seller harmless from and
against all liens on the Property filed by contractors, materialmen or laborers performing work
and tests for Purchaser including reasonable attorney's fees and costs. The foregoing indemnities
shall survive the Closing and any termination of this Agreement. In conducting any inspections,
investigations or tests of the Property, Purchaser and its agents and representatives shall: (i) not
interfere with the operation and maintenance of the Property; (ii) not damage any part of the
Property or any personal property owned or held by any party; (iii) not injure or otherwise cause
bodily harm to Seller, or its respective agents, guests, invitees, contractors and employees or their
guests or invitees; (iv) comply with all applicable laws; (v) promptly pay when due the costs of
all tests, investigations, and examinations done with regard to the Property; (vi) not permit any
liens to attach to the Property by reason of the exercise of its rights hereunder; (vii) repair any
damage to the Property resulting directly or indirectly from any such inspection or tests; and
(vii) not reveal or disclose prior to Closing any information obtained concerning the Property
except as may be otherwise required by applicable law. In the event that the Purchaser elects not
to proceed with this transaction, the Purchaser shall restore the Property to its condition existing
prior to Purchaser's inspections within five (5) days of canceling this transaction, and
additionally Purchaser shall furnish Seller with copies of any inspection reports that it may have
obtained during the Inspection Period, if any. The obligations of Purchaser in the preceding
sentence shall survive the termination of this Agreement.
9.2 Termination Rh!ht. If Purchaser is dissatisfied, for any reason and in
Purchaser's exclusive judgment, with the results of Purchaser's investigation and study of the
Property on or before 5:00 p.m. on the Termination Date, then Purchaser may terminate this
Agreement by notifying Seller and Seller's Attorney of such termination on or before 5:00 p.m.
on the Termination Date, whereupon the Earnest Money shall be refunded to Purchaser by the
Escrow Agent and thereafter neither party hereto shall have any further rights, obligations, or
liabilities hereunder except to the extent that any right, obligation or liability set forth herein
expressly survives termination of this Agreement. If Purchaser fails to timely notify Seller of
such termination on or before 5:00 p.m. on the Termination Date, then Purchaser shall be deemed
to have waived its right to terminate this Agreement pursuant to this subsection 9.2. and shall be
deemed to have elected to accept the Property in its present AS -IS condition.
SECTION 10. CLOSING.
Subject to satisfaction of all conditions to Closing, the Closing shall be held during
regular business hours on the date which is on or before fifteen days (15) days after Final
Approval of the Site Plan Approval, as set forth in section 10.3.3. The Closing shall be held at
the offices Seller or Seller's Attorney, at a time mutually acceptable to both parties. If no such
selection is timely made, the Closing shall be held at 10:30 a.m. local time on the Closing Date
or at such other time or such other place as may be mutually agreed in writing by the parties
hereto.
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10.1 Delivery: Possession. At Closing, Seller shall deliver to Purchaser the items
required of Seller under this Agreement, and Purchaser shall deliver to Seller the balance of the
Purchase Price (after crediting the Earnest Money and making other adjustments and prorations
as provided herein) and the other items required of Purchaser under this Agreement. Seller shall
deliver possession of the Property to Purchaser at the time of Closing. Risk of loss shall remain
with Seller until Closing.
10.2 Closing Costs.
10.2.1 Seller's Costs. Seller shall pay (i) the fees and expenses of
Seller's attorneys, and (ii) the cost of recording any corrective
instruments.
10.2.2 Purchaser's Costs. Purchaser shall pay (i) any costs incurred by
Purchaser in preparing and performing its due diligence
investigations, (ii) the cost of the Title Commitment (including title
search, examination and document preparation fees and other costs
required by the Title Company), (iii) the premium for the Owner's
Title Policy (including any simultaneous issue to a mortgagee and
all endorsements), (iv) the cost of recording the Deed, (v) the cost
of the Survey, (vi) the documentary stamps due on the Deed, (vii)
the surtax due on the Deed, (viii) the fees and expenses of
Purchaser's attorneys, and (ix) all costs incurred with any financing
of the Purchase Price or any portion thereof.
10.2.3 Other Costs. Any other costs not specifically provided for in
subsection 10.2.1, subsection 10.2.2 or otherwise pursuant to the
terms of this Agreement including escrow fees and other escrow
related charges of the Escrow Agent in its capacity as escrow agent
only, shall be paid by the party who incurred those costs, or if
neither party is charged with incurring any such costs, then by the
party customarily assessed for such costs in the place where the
Property is located.
10.2.4 Survival. The provisions of this subsection 10.2 shall survive the
Closing and the delivery of the Deed.
10.3 Purchaser's Conditions to Closing. Purchaser's obligation to purchase the
Property is expressly conditioned upon the fulfillment or satisfaction of each of the following
conditions precedent on or before the Closing Date (any of which may be waived only in writing
by Purchaser in its discretion):
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10.3.1 Seller shall have fully performed in all material respects each
undertaking and covenant and agreement to be performed by Seller
under this Agreement including, but not limited to, delivery of all
items and documents required under Section 12 below;
10.3.2 Each representation and warranty made in this Agreement by Seller
shall be complete, true and accurate in all material respects;
10.3.3 Purchaser shall have obtained from Seller "Final Approval" (which
for purposes of this Agreement shall mean that all appeal periods
have expired without the filing of an objection) of (i) a Site Plan
permitting development of a maximum of 12,000 square feet of
office space on the Property; and (ii) any necessary variances to the
City of Aventura's Code to permit development of a maximum of
12,000 square feet of office space on the Property (collectively, the
"Site Plan Approval "). No later than five (5) days after the
Termination Date of this Agreement (the "Required Applications
Filing Date "), Purchaser shall, at no cost or expense to Seller,
submit to the Seller complete applications for the Site Plan
Approval for the Property (collectively, the "Required
Applications "), and thereafter diligently, expeditiously and in good
faith prosecute the Required Applications, including the submittal
of any documentation necessary and required by Seller in
connection with processing and approval of such application. In
the event that Purchaser has not obtained the Site Plan Approval
within ninety (90) days of the Effective Date of this Agreement
(the "Approval Period'), either party shall have the right to
terminate this Agreement, whereupon the Earnest Money shall be
returned to Purchaser by the Escrow Agent and thereafter neither
party shall have any further rights, obligations or liabilities
hereunder except to the extent that any right, obligation or liability
set forth herein expressly survives termination of this Agreement.
Seller shall have the right to elect, in its sole discretion, upon
written notice given by Purchaser to Seller prior to the expiration
of the Approval Period to extend the Approval Period by an
additional thirty (30) days, provided such notice is accompanied by
evidence reasonably demonstrating that Purchaser has timely
submitted its application by the Required Applications Fling Date
and has diligently, expeditiously and in good faith prosecuted the
Required Applications. Seller agrees to process the Required
Applications in accordance with applicable laws and requirements
as set forth in its Code. Purchaser shall reimburse or pay Seller for
all costs incurred by Seller in connection with any required
variance applications as set forth in (ii) of this subsection, and said
costs shall be reimbursed or payable to Seller no later than the
Closing Date. Seller and Purchaser agree that the Site Plan
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Approval is a condition precedent to the Closing of the sale and
purchase of the Property.
10.3.4 Right -of -Way Dedication of Access Parcel by Seller.
Simultaneously at the time of Closing, and provided that all
Closing Contingencies have been satisfied, including the Site Plan
Approval, Seller shall dedicate the Access Parcel as public right -
of -way for the purpose of providing access and ingress and egress
to and from the Property and Biscayne Boulevard.
(a) Purchaser's Obligation to Construct and Maintain Access
Improvements on Access Parcel. Purchaser shall, at its sole cost
and expense, install and construct the Access Improvements on the
Access Parcel in accordance with the sketch attached hereto and
made a part hereof as Exhibit "C ", and shall obtain all required
permits and approvals for such installation and construction of the
Access Improvements from the Florida Department of
Transportation ( "FDOT ") and Miami -Dade County, Florida, with
all final plans for the access locations and Access Improvements
to be approved by Seller. Any changes or modifications to Exhibit
"C attached hereto shall require the prior approval of FDOT,
Miami -Dade County and Seller. The Access Improvements shall
be a condition of Site Plan Approval and shall be completed by
Purchaser prior to the issuance of a Certificate of Occupancy for
the Property. Upon completion of the Access Improvements,
Purchaser shall convey and /or dedicate the Access Improvements
on the Access Parcel to Seller as public right -of -way
improvements. Purchaser shall, at its sole cost and expense,
maintain the Access Improvements in good conditions and repair
and in accordance with all applicable laws, requirements and
standards of FDOT, Miami -Dade County, Florida and Seller, until
such time as the westerly extension of N.E. 213 Street is
constructed and completed. The obligations of Purchaser in this
subsection shall survive the Closing and the expiration or
termination of this Agreement.
(b) Purchaser shall, at its sole costs and expense, obtain all
required permits and approvals from FDOT and Miami -Dade
County, Florida for the installation and construction of the Access
Improvements, including a new mast arm at the easterly limit of
the N.E. 213 Street and Biscayne Boulevard intersection, as shown
on the sketch attached hereto as Exhibit "C ", and all required or
necessary signalization and other improvements or facilities as may
be required by FDOT or Miami -Dade County, Florida for the
efficient and proper functionality of the intersection. The
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obligations of Purchaser in this subsection shall survive the
Closing and expiration or termination of this Agreement.
(c) Seller intends at a future date to construct or have constructed
a westerly extension to N.E. 213 Street, which extension will
provide access to the Property. Upon the construction of the
westerly extension of N.E. 213 Street providing access to and from
the Property, the access and ingress and egress from the Property to
and from N.E. 213 Street shall be limited to right -in and right -out
only. The obligations of Purchaser in this subsection, including all
restrictions as to access and ingress and egress from N.E. 213
Street, shall survive the Closing and expiration or termination of
this Agreement.
(d) In the event that the real property to the north and adjacent to
the Access Parcel is developed, and the owner and /or developer of
such parcel desires to connect and use the Access Parcel
Improvements, Seller will recover from such owner and/or
developer one half (1/2) of the costs of Purchaser's Access Parcel
Improvements consisting of the mast arm installation at the limit of
the intersection of N.E. 213 Street and Biscayne Boulevard and all
required or necessary signalization and other improvements or
facilities as required by FDOT and Miami -Dade County. Seller
shall pay all recovered costs for such Access Parcel Improvements
to Purchaser.
If any of the foregoing conditions are not satisfied at or before
the Closing Date, then Purchaser, as its sole remedy may either (1)
terminate this Agreement by written notice to Seller, in which
event the Earnest Money shall be returned to Purchaser and the
parties shall be released from all obligations and liabilities under
this Agreement except those that expressly survive termination of
this Agreement or (2) elect to close and accept the Property and
title thereto "as is" without claim against the Seller therefor and
without reduction to the Purchase Price. If the Purchaser does not
timely deliver to Seller such notice of termination by the Closing
Date, then Purchaser shall be deemed to have elected to proceed
pursuant to subsection (2) of the preceding sentence. If the failure
of any of the foregoing would constitute a default hereunder,
Purchaser shall have the rights and remedies provided in Section
16.
10.4 Seller's Conditions to Closing. Seller's obligation to sell the Property is
expressly conditioned upon the fulfillment or satisfaction of each of the following conditions
K:\Docs \0328 \001\354695503.DOC 13
precedent on or before the Closing Date (any of which may be waived only in writing by Seller in
its discretion):
10.4.1 Purchaser shall have fully performed in all material respects each
undertaking and covenant and agreement to be performed by
Purchaser under this Agreement;
10.4.2 Each representation and warranty made in this Agreement by
Purchaser shall be complete, true and accurate in all material
respects;
If the failure of any of the foregoing conditions are not satisfied at or before the Closing
Date, then in addition to any remedy available to Seller under this Agreement, Seller may
terminate this Agreement by written notice to Purchaser, in which event the Earnest Money shall
be delivered to Seller as agreed as liquidated damages and the parties shall be released from all
obligations and liabilities under this Agreement except those that expressly survive termination
of this Agreement; provided, however, that if any of the foregoing would constitute a default
hereunder, Seller shall have the rights and remedies provided in Section 16.
SECTION 11. PRORATIONS AND CREDITS AT CLOSING. All prorations to be
made "as of the Closing Date" shall each be made as of 11:59 p.m. local time on the date
immediately preceding the Closing Date. In each proration set forth below, the portion thereof
allocable to periods beginning with the Closing Date shall be credited to Purchaser, or charged to
Purchaser, as applicable, at Closing or, in the case of allocations made after Closing, upon receipt
of such payments or invoice as of the Closing Date. Except as may otherwise be specified
herein, the following items shall, as applicable, be prorated between Purchaser and Seller or
credited to Purchaser or Seller:
11.1 Property Taxes and Assessments.
11.1.1 Taxes. The Property is currently exempt from real estate taxes.
Purchaser shall be responsible for all real estate taxes forward from
the Closing Date.
11.1.2 Special Assessments. Certified, confirmed and ratified special
assessment liens as of Date of Closing (and not as of the date of
this Agreement) shall be paid by Seller or Purchaser shall receive a
credit therefor. Pending liens as of Date of Closing shall be
assumed by Purchaser; provided, however, that where the
improvement for which the special assessment was levied, had
been substantially completed as of the date of this Agreement, such
pending liens shall be considered as certified, confirmed or ratified
and Seller shall, at Closing, be charged an amount equal to the
estimated assessment for the improvement.
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11.2 Other Matters. Seller and Purchaser shall make such other adjustments and
apportionments as are expressly set forth in this Agreement.
11.3 Survival. The provisions of this Section 11 shall survive the Closing and the
delivery of the Deed. In the event final figures have not been reached on any of the adjustments,
prorations or costs which are to be adjusted at or prior to Closing pursuant to this Section 11, the
parties shall close using adjustments and prorations reasonably estimated by Seller and
Purchaser, subject to later readjustment when such final figures have been obtained.
SECTION 12. CONVEYANCES AND DELIVERIES AT CLOSING.
12.1 Deed. At Closing, Seller shall convey the Property to Purchaser by a duly
executed and recordable special warranty deed (herein referred to as "Deed ") in substantially the
form attached hereto as Exhibit "D ".
12.2 Section 1445 Certificate. At Closing, Seller shall execute and deliver to
Purchaser and the Title Company a certificate stating that Seller is not a "foreign person" as
defined in Section 1445 of the Internal Revenue Code and the regulations thereunder.
12.3 Form 1099. At Closing, Seller shall execute and deliver to Purchaser and the
Title Company such federal income tax reports respecting the sale of the Property as required by
the Internal Revenue Code and such other information required by the Title Company to
complete IRS Form 1099 with respect to this transaction.
12.4 Affidavit of Title. At Closing, Seller shall execute and deliver to Purchaser and
to the Title Company a no -lien, possession and gap title affidavit in the form attached hereto as
Exhibit "E ".
12.5 Closing Statement. At Closing, Seller and Purchaser shall execute and deliver a
Closing Statement which shall, among other items, set forth the Purchase Price, all credits
against the Purchase Price, the amounts of all prorations and other adjustments to the Purchase
Price and all disbursements made at Closing on behalf of Purchaser and Seller in accordance with
the terms of this Agreement.
12.6 Physical Possession. At Closing, Seller shall deliver to Purchaser possession of
the Property.
12.7 Other Documents. At Closing, Seller and Purchaser shall deliver to each other
any other documents expressly required to be delivered or furnished pursuant to any other
provisions of this Agreement or reasonably required to carry out the purpose and intent of this
Agreement.
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SECTION 13. NOTICES. All notices, consent, approvals and other communications
which may be or are required to be given by either Seller or Purchaser under this Agreement shall
be properly given only if made in writing and sent by (i) hand delivery, or (ii) certified or
registered mail, postage prepaid, return receipt requested, with all delivery charges paid by the
sender and addressed to the Purchaser or Seller and their attorneys, as applicable, as set forth in
Section 1. Such notices shall be deemed received, (1) if delivered by hand, on the date of delivery
and (2) if sent by certified or registered mail, the date it is received as evidenced by signature on
the return receipt. The refusal to accept delivery shall constitute acceptance and, in such event,
the date of delivery shall be the date on which delivery was refused. Any change of address must
be made by written notice to the other parry and such change shall be effective five (5) days
following receipt of such written notice by the other party. In the event that written notice,
demand or request is made as provided herein, then in the event that such notice is returned to the
sender by the U.S. Postal System because of insufficient address, or the party moved or otherwise
(but not refusal of acceptance), such notices shall be deemed to have been received by the party
to whom it was addressed on the date that such was initially placed in the U.S. Postal System by
the sender.
SECTION 14. CASUALTY AND CONDEMNATION.
14.1 Casualty. The Property shall be conveyed to Purchaser in the same condition as
on the date of this Agreement, ordinary wear and tear excepted, free of all tenancies or
occupancies.
14.2 Condemnation. At Closing, Seller shall assign to Purchaser all of Seller's right,
title and interest in and to the beds of streets, roads, alleys, avenues and highways abutting the
Property and all of Seller's right, title and interest in and to all awards in condemnation, or
damages or any kind, to which Seller is entitled at the time of Closing, by reason of any exercise
of power of eminent domain with respect thereto or for the taking of the Property or any part
thereof or by reason of any other event affecting the Property which gives rise to a damage claim
against a third Party after the date hereof. Prior to the Closing Date, if all or any portion of the
Property is taken, or if access thereto is reduced or restricted by eminent domain or otherwise (or
if such taking, reduction or restriction is pending, threatened or contemplated) (hereinafter a
"Condemnation Proceeding "), Seller shall immediately notify Purchaser of such fact. In the
event that such notice related to the taking of all or any portion of the Property, Purchaser shall
have the option, in its sole and absolute discretion, to terminate this Agreement upon written
notice to Seller given not later than five (5) days after receipt of Seller's notice; whereupon the
Earnest Money shall be refunded to Purchaser and thereafter neither Party shall have any rights,
obligations or liabilities hereunder except with respect to those rights, obligations or liabilities
which expressly survive the termination of this Agreement. If Purchaser does not elect to
terminate this Agreement as herein provided, Seller shall pay to Purchaser any award received by
Seller prior to Closing and Purchaser shall have the right to participate with Seller in any
Condemnation Proceeding affecting the Property; provided, that in doing so Purchaser shall
cooperate with Seller in good faith.
KADocs\0328\00 1 \3 54695 503.DOC 16
SECTION 15. BROKERS. Seller and Purchaser warrants and represents to the other
that such party has not employed (expressly or impliedly) any broker, agent or other such Person
as to which a commission or other such fee is or would become due or owing as a result of the
purchase and sale contemplated hereby and has made no agreement (express or implied) to pay
any broker's commission or other such fees in connection with the purchase and sale
contemplated by this Agreement. Each of Seller (subject to the provisions and monetary
limitations of Section 768.28, F.S.) and Purchaser agrees to indemnify and defend the other
against, and to hold the other harmless of and from all claims, demands and liabilities (including
reasonable attorney's fees and expenses incurred in defense thereof) for any commission or fees
payable to, or claimed by, any broker, agent or other such Person arising out of the employment
or engagement of such Person employed (expressly or impliedly) by Seller of Purchaser, as
applicable, or with whom Seller or Purchaser, as applicable, has or is claimed to have, made an
agreement (express or implied) to pay a commission or other such fee. The representation,
warranties, undertakings and indemnities of this Section 15 shall survive the Closing hereunder
and any termination of this Agreement.
SECTION 16. DEFAULT; REMEDIES.
16.1 Seller's Default/Purchaser's Remedies. Notwithstanding any other remedy
provided for herein, if Seller defaults in the observance or performance of its covenants and
obligations hereunder, Purchaser may, at its option, as its sole and exclusive remedy, elect to
either (i) terminate this Agreement and receive a refund of the Earnest Money, or (ii) seek
specific performance of this Agreement, in either case waiving any action for damages resulting
from Seller's breach.
16.2 Purchaser's Default /Seller's Remedies. If Purchaser defaults in the observance
or performance of its covenants and obligations hereunder, then Seller, as its sole and exclusive
remedy, shall (as an election of remedies) receive the Earnest Money from Escrow Agent as
liquidated damages. Purchaser and Seller acknowledge the difficulty of ascertaining the actual
damages in the event of such default, that it is impossible to more precisely estimate the damages
to be suffered by Seller upon such default, that the retention of the Earnest Money by Seller is
intended not as a penalty but as full liquidated damages and that such amount constitutes a good
faith estimate of the potential damages arising therefrom. Seller's right to so terminate this
Agreement and to receive liquidated damages as aforesaid is Seller's sole and exclusive remedy.
Seller hereby waives, relinquishes and releases any and all other rights and remedies, including
but not limited to: (i) any right to sue Purchaser for damages or to prove that Seller's actual
damages exceed the amount which is hereby provided Seller as fully liquidated damages or (ii)
any other right or remedy which Seller may otherwise have against Purchaser, either at law, or
equity or otherwise.
SECTION 17. ESCROW AGENT.
17.1 Performance of Duties. Escrow Agent undertakes to perform only such duties as
are expressly set forth in this Agreement. Escrow Agent shall not be deemed to have any implied
duties or obligations under or related to this Agreement.
KADocs\0328\00 1 \3 54695 503. DOC 17
17.2 Reliance. Escrow Agent may (i) act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine; (ii) assume the validity and accuracy of
any statement or assertion contained in such a writing or instrument; and (iii) assume that any
person purporting to give any writing, notice, advice or instructions in connection with the
provisions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable
in any manner for the sufficiency or corrections as to form, manner of execution, or validity of
any instrument deposited in escrow, nor as to the identity, authority, or right of any person
executing any instrument; Escrow Agent's duties under this Agreement are and shall be limited to
those duties specifically provided in this Agreement.
17.3 Right to Interylead. If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this Agreement, or about their respective rights and
obligations, or about the propriety of any action contemplated by Escrow Agent, Escrow Agent
may, but shall not be required to, file an action in interpleader to resolve the disagreement; upon
filing such action, Escrow Agent shall be released from all obligations under this Agreement.
17.4 Attorney's Fees and Costs. In any suit between Purchaser and Seller wherein
Escrow Agent is made a party because of acting as Escrow Agent hereunder, or in any suit
wherein Escrow Agent interpleads the subject matter of the Escrow, Escrow Agent shall recover
reasonable attorney's fees and costs incurred with the ,fees and costs to be paid from and out of
the escrowed funds or equivalent and charged and awarded as court costs in favor of the
prevailing party. The parties hereby agree that Escrow Agent shall not be liable to any party or
person for misdelivery to Purchaser or Seller of items subject to this escrow, unless such
misdelivery is due to willful breach of this Agreement or gross negligence of Escrow Agent.
17.5 Escrow Agent as Counsel for Seller. It is acknowledged that Escrow Agent is
counsel for Seller. It is agreed that Escrow Agent shall not be disabled or disqualified from
representing Seller in connection with any dispute or litigation which may arise out of or in
connection with this transaction or this Agreement as a result of Escrow Agent acting as the
escrow agent under this Agreement and the Seller and Purchaser waive any claim or right to
assert a conflict arising out of or in connection with the foregoing.
SECTION 18. MISCELLANEOUS PROVISIONS.
18.1 Entire Agreement. This Agreement, and all the Exhibits referenced herein and
annexed hereto, contain the final, complete and entire agreement of the parties hereto with
respect to the matters contained herein, and no prior agreement or understanding pertaining to
any of the matters connected with this transaction shall be effective for any purpose. Except as
may be otherwise expressly provided herein, the agreements embodied herein may not be
amended except by an agreement in writing signed by the parties hereto.
18.2 Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Florida. Venue for any litigation arising out of this Agreement shall be in
Miami -Dade County, Florida.
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18.3 Interpretation. The titles, captions and paragraph headings are inserted for
convenience only and are in no way intended to interpret, define, limit or expand the scope or
content of this Agreement or any provision hereto. If any party to this Agreement is made up of
more than one Person, then all such Persons shall be included jointly and severally, even though
the defined term for such party is used in the singular in this Agreement. This Agreement shall
be construed without regard to any presumption or other rule requiring construction against the
party causing this Agreement to be drafted. If any words or phrases in this Agreement shall have
been stricken out or otherwise eliminated, whether or not any other words of phrases have been
added, this Agreement shall be construed as if the words or phrases so stricken out or otherwise
eliminated were never included in this Agreement and no implication or inference shall be drawn
from the fact that said words or phrases were so stricken out or otherwise eliminated.
18.4 Counterparts. This Agreement may be executed in separate counterparts. It
shall be fully executed when each party whose signature is required has signed at least one
counterpart even though no one counterpart contains the signatures of all of the parties of this
Agreement. Facsimile copies shall be deemed originals.
18.5 Non - waiver. No waiver by Seller or Purchaser of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by such party. No delay or
omission in the exercise of any right or remedy accruing to Seller or Purchaser upon any breach
under this Agreement shall impair such right to remedy or be construed as a waiver of any such
breach theretofore or thereafter occurring. The waiver by Seller or Purchaser of any breach of
any term, covenant or condition herein stated shall not be deemed to be a waiver of any other
breach, or of a subsequent breach of the same or any other term, covenant or condition herein
contained.
18.6 Severability. This Agreement is intended to be performed in accordance with
and only to the extent permitted by applicable law. If any provisions of this Agreement or the
application thereof to any Person or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, but the extent of the invalidity or unenforceability does not destroy the
basis of the bargain between the parties as contained herein, the remainder of this Agreement and
the application of such provision to other Persons or circumstances shall not be affected thereby,
but rather shall be enforced to the greatest extent permitted by law.
18.7 Exhibits. The Exhibits referred in and attached to this Agreement are
incorporated herein in full by this reference.
18.8 Attorneys' Fees. In the event of any controversy, claim or dispute between the
parties arising from or relating to this Agreement (including, but not limited to, the enforcement
of any indemnity provisions), the prevailing party shall be entitled to recover reasonable costs,
expenses and attorneys' fees including, but not limited to, court costs and other expenses through
all trial and appellate levels.
K:\Docs \0328 \001\354695503.DOC 19
18.9 Business Days. If any date provided for in this Agreement shall fall on a day
which is not a Business Day, the date provided for shall be deemed to refer to the next Business
Day.
18.10. Time is of the Essence. Time is of the essence in this Agreement.
18.11 Effective Date. For purposes of calculation of all time periods within which
Seller or Purchaser must act or respond as herein described, all phrases such as "the date of this
Agreement ", "the date of execution of this Agreement" or any other like phrase referring to the
date of the Agreement, shall mean and refer to the "Effective Date" of this Agreement.
18.12 Radon Disclosure. Pursuant to the requirements of §404.056(5), Florida
Statutes, Seller makes the following disclosure to Purchaser. 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.
18.13 Waiver of Trial by Jury. SELLER AND PURCHASER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION
WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT AND ANY OTHER
DOCUMENT OR INSTRUMENT NOW OR HEREAFTER EXECUTED AND DELIVERED
IN CONNECTION THEREWITH.
18.14 Assignment. Purchaser may not assign, transfer or encumber this Agreement or
any of its rights hereunder without the prior written consent of Seller.
18.15 Recording. This Agreement or any memorandum thereof shall not be recorded
in the Public Records of Miami -Dade County and any such recording shall constitute a material
default by the applicable party.
18.16 Police/Regulatory Powers. Seller cannot, and hereby specifically does not,
waive or relinquish any of its regulatory approval or enforcement rights and obligations as it may
relate to regulations of general applicability which may govern the Property, any improvements
thereon, or any operations at the Property. Nothing in this Agreement shall be deemed to create
an affirmative duty of Seller to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other action in accordance with
its zoning and land use codes, administrative codes, ordinances, rules and regulations, federal
laws and regulations, state laws and regulations, and grant agreements. In addition, nothing
herein shall be considered zoning by contract.
KADocs \0328 \001\354695503.DOC 20
18.17 No Third Party Beneficiaries. Neither the Purchaser nor Seller intends to
directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that
there are no third party beneficiaries to this Agreement and that no third party shall be entitled to
assert a claim against any of the parties based upon this Agreement. The parties expressly
acknowledge and agree that it is not their intent to create any rights or obligations in any third
party or entity under this Agreement.
18.18 Compliance with Laws. Each party shall comply with all applicable federal,
state, and local laws, codes, ordinances, rules and regulations in performing its duties,
responsibilities and obligations pursuant to this Agreement.
18.19 Recitals. The Recitals set forth at the commencement of this Agreement are true
and correct and incorporated herein in full by this reference.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed as of the day and year written below their signatures.
SELLER:
CITY OF AVENTURA,
a Florida municipal corporation
By:
Eric M. Soroka, City Manager
Dated: , 2013
Attest:
By:
City Clerk
Approved as to legal form and
Sufficiency:
City Attorney
KADocs\0328\00 1\3 54695 503.DOC 22
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed as of the day and year written below their signatures.
KADocs \0328 \001 \3546955.DOC 23
PURCHASER:
PRESIDENTIAL AVENTULRA
PROPERTIES, LLC, a o da Limited
Liab Cp4ipany
Gordon;
Dated: �ccfix�,�'" , 2013
ESCROW AGENT:
The Escrow Agent hereby joins in this Agreement for purposes of agreeing to the
provisions of Sections 3 and 17 hereof.
WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L.
By:
Name:
Title:
Dated:
2013
KADocs \0328 \001\354695503.D0C 24
EXHIBIT "A"
THE PROPERTY
Certain real property located in Miami -Dade County as more particularly described as follows:
DESCRIPTION: CITY PARCEL
A PORTION OF LOT 1, BLOCK 3, SECTION 34, TOWNSHIP 51 SOUTH, RANGE 42 EAST,
TOWN OF HALLANDALE. ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT
BOOK "B ", PAGE 13, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA,
AND A PORTION OF THE RESERVED AREA OF 14ALLANVALE PARK, ACCORDMIG TO
THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 12. PAGE 37. OF THE PUBLIC
RECORDS OF IMAl"ADE COUNTY, FLORIDA. DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTH BOUNDARY OF SAID LOT 1, WITH
THE WEST RIGHT OF WAY OF BISCAYNE BOULEVARD;
THENCE SOUTH 6'50`44" WEST, ALONG THE SOUTH BOUNDARY OF SAID LOT 1 AND
THE SOUTH LINE OF SAID HALLANDALE PARK, A DISTANCE OF 156.02 FEET TO THE
EAST LINE EXTENDED SOUTH OF BLOCK 40 OF SAID HALLANDALE PARK: THENCE
NORTH 00'06-20" WEST, ALONG THE SAID EAST LINE EXTENDED. A DISTANCE OF 32.6
FEET: THENCE NORTH 69'5323" EAST, A DISTANCE OF 32.66 FEET; THENCE NORTH
OW4040" WEST, A DISTANCE OF 103.24 FEET: THENCE SOUTH 76 °0930" EAST, A
DISTANCE OF 33.54 FEET; THENCE SOUTH 600'10" EAST, A DISTANCE OF 104.55
FEET; THENCE SOUTH 23'20'50' EAST, A DISTANCE OF 42.32 FEET TO THE WEST RIGHT
OF WAY OF BISCAYNE BOULEVARD, SAID POINT BEING ON THE AMC OF A CURVE
CONCAVE NORTHWESTERLY, WHOSE RADIUS POINT BEARS NORTH 67.41'37' WEST
FROM THE LAST DESCRIBED POINT: THENCE SOUTHWESTERLY, ALONG SAID RIGHT
OF WAY AND THE AMC OF SAID CURVE, HAVING A RADIUS OF 3784.63 FEET, A
CENTRAL ANGLE OF 00'81111 ", FOR AN AMC DISTANCE OF 56.35 FEET TO THE POINT
OF BEGINNING.
SAID LANDS SITUATE IN THE CRY OF AVENTURA. MUAMI -DADS COUNTY, FLORIDA.
CONTAINING 16490 SQUARE FEET OR 0.379 ACRES MORE OR LESS.
THE BEARINGS REFERENCED ON THE ATTACH SKETCH ARE BASED ON AN ASSUMED
BEARING. THE SOUTH BOUNDARY OF SAID LOT 1 IS ASSUMED TO BEAR SOUTH
WSW44" WEST.
SURVEY THE ATTACHED SKETCH IS BASED ON A
PROFESSIONAL LAND SUR EYORS, INC. DATED03 -10-98, UNDER PREPARED OBNUMB R 21128,
AS PROVIDED BY CLIENT.
CERTFICATE:
WE HEREBY CERTIFY THAT THIS DESCRIPTION AND SKETCH CONFORMS TO THE
MINIMUM TECHNICAL STANDARDS FOR LAND SURVEYING IN THE STATE OF FLORIDA.
AS OUTLINED IN CHAPTER 416174 IFLOMDA ADMINISTRATIVE CODE), AS ADOPTED
BY THE DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION. BCARD OF
PROFESSIONAL SURVEYORS AND MAPPERS IN SEPTEMBER, 1961, AS ATTENDED,
PURSUANT TO CHAPTER 472.027 OF THE FLORIDA STATUTES, AND IS TRUE AND
CORRECT TO THE BEST OF OUR KNOWLEDGE AND BELIEF.
CRAVEN THOMPSON 6 ASSOCIATES, INC.
CERTIFICATE OF AUTHORIZATION NUMBER LB 271
�������� RENT A SPENCER
PROFESSIONAL SURVEYOR AND MAPPER NO. 8748
STATE OF FLORIDA
NW valid without the signature and the original raised seat of a Florida licensed surveyor
and mapper.
SHEET 1 OF 2 SHEETS
N: 1Clwbehlna ;�0et�el -0�09Y.EG�l.�9LD 713 IT CITV ►MCEL4WV'.do
coe" an SAROar 3:5000 PM
Da1D/0Md
KADocs \0328 \001\354695503.DOC 25
GRAVER. -THOMPSON 8, Ac )OCIATES, INC.
C ENGINEERS PLANNERS SURVEYORS
3563 N.W. 53RD STREET FORT LAUDERDALE, FLORIDA 33309 (954) 739 -6400
FAX: (954) 739 -6409
NOTE- IWS Is IIQl A ,glETCw Or "AV. - 4ml • rNA;c 4o.Nltow
FDR: CITY IF AVENTURA of .the awpo n soon I .w Th., Mc bw . wo _-+ a nS
I -r s*iKi i•PSSIr. a mon„rnMls qt w emn•tl'Nn .11. Ity M•W OIb•
of I" fMpirNlNn fNb-n As.Ko
SKETCH TO ACCOMPANY DESCRIPTION
CITY PARCEL
RegAO?US
O:DFL TA ANCLF
0 2200 4 {0 A. ARC L"IH
J— SO FLAT Apo FFfr
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simrW motlsrs, W 1Ntlw. "tis ir"l —I is nN inlrn/c4 to twried a NI torin
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JOB Na., 01 -OIOJ DRAWN BY, DAS CHECKED AY: MRN IF 67A PG. N/A DATED: q6 /oe /F
KADocs \0328 \001\354695503.D0C 26
KADocs \0328 \001\354695503.D0C 26
EXHIBIT "B"
ACCESS PARCEL
DESCRIPTION: MONT OF WAY DEDICATION
A PORTION OF LOT 1, BLOCK 3, SECTION 34, TOWNSHIP 51 SOUTH, RANGE 42 EAST,
TOWN OF HALLANDALE, ACCOROM TO THE PLAT THEREOF, AS RECORDED IN PLAT
BOOK "B ", PAGE 1% OF THE PUBLIC RECORDS OF MIAWDADE COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
COMMENCE AT THE INTERSECTION OF THE SOUTH BOUNDARY OF SAID LOT 1, WITH
THE WEST RIGHT OF WAY OF BISCAYNE BOULEVARD, SAID POINT BEING ON THE ARC
OF A CURVE CONCAVE NORTHWESTERLY, WHOSE RADIUS POINT BEARS NORTH
66460'22^ WEST FROM THE LAST DESCRIBED POINT; THENCE NORTHEASTERLY,
ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE. HAVING A RADIUS OF
3764.83 FEET, A CENTRAL ANGLE OF 96'5111 ", FOR AN ARC DISTANCE OF 6635 FEET
TO THE POINT OF 01E05001IG; THENCE NORTH 23'2G60' WEST, A DISTANCE OF 42.32
FEET; THENCE NORTH 65'96'19' WEST, A DISTANCE OF 104.55 FEET TO THE EAST
LINE OF RESERVED AREA, HALLENOALE PARK, PLAT BOOK It PAGE 37, MIAMI DADE
COUNTY RECORDS; THENCE NORTH 01'19'48' WEST, ALONG SAID EAST LINE, A
DISTANCE OF 34A2 FEET; THENCE NORTH 119'60'18' EAST, A DISTANCE OF 166.59 FEET
TO SAID WEST RIGHT OF WAY OF DWAYNE BOULEVARD, SAID POINT BEING ON THE
ARC OF A CURVE CONCAVE NORTHWESTERLY, WHOSE RADIOS POINT BEARS NORTH
W29'38" WEST FROM THE LAST DESCRIBED POINT; THENCE SOUTHWESTERLY,
ALONG SAID RIGHT OF WAY AND THE ARC OF SAD CURVE, HAVING A RADIUS OF
2794.83 MET, A CENTRAL ANGLE OF 61.46'06', FOR AN ARC DISTANCE OF 1 /6A! FEET
TO THE POINT OF BEGINNING,
SAID LANDS SITUATE IN THE CITY OF AVENTURA, WAMI DADE COUNTY, FLORIDA.
CONTAINING 9145 SQUARE FEET OR 0.210 ACRES MORE OR LESS,
THE BEARINGS REFERENCED ON THE ATTACH SKETCH ARE BASED ON AN ASSUMED
BEARING. THE SOUTH BOUNDARY OF SAID LOT 1 IS ASSUMED TO BEAR SOUTH
09'60'44" WEST.
THE ATTACHED SKETCH IS BASED ON A SURVEY PREPARED BY SLOOMSTER
PROFESSIONAL LAND SURVEYORS. INC. DATED 0&19•%, UNDER JOB NUMBER 2112,
AS PROVIDED BY CLIENT.
CERTIFICATE:
WE HEREBY CERTIFY THAT THIS DESCRIPTION AND SKETCH CONFORMS TO THE
MINIMUM TECHNICAL STANDARDS FOR LAND SURVEYING IN THE STATE OF FLORIDA,
AS OUTLINED IN CHAPTER 610174 (FLORIDA ADMINISTRATIVE CODE). AS ADOPTED
BY THE DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF
PROFESSIONAL SURVEYORS AND MAPPERS IN SEPTEMBER, 1981, AS AMENDED,
PURSUANT TO CHAPTER 472.021 OF THE FLORIDA STATUTES, AND IS TRUE AND
CORRECT TO THE BEST OF OUR KNOWLEDGE AND BELIEF.
CRAVEN THOMPSON 0 ASSOCIATES, INC.
CERTIFICATE OF AUTHORIZATION NUMBER LB 271
BMW A SPENCER
PROFESSIONAL SURVEYOR AND MAPPER NO. 0611
STATE OF FLORA
Not wNd whhwA the sWowm nld Nn or18Ud ni44d 344d of • F*Ma Ifconwd sum"w
sw mapper.
SHEET 1 OF 2 SHEETS
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K:\Docs \0328 \001\354695503.DOC 27
CR " "EN •THOMPSON 8, ASS' :IATES, INC.
C ENt.1nEERS e PLANNERS e SURVEYORS
3563 NW 53RD STREET FORT LAUDERDALE. FLORIDA 33309 (951) 739 -6400
FAX: (951) 739 -6109
FOR: CITY OF O NNRA Np1� rlas 15 rr SmI or wRrc Y. e e - 4 �.eNe dftiali .
e_riF. .l W.Wt o.. Mr..n. it n« — na Me . th. + "W M
u• •.e r .. .. * r ..we.n.M■ an w ..nMelNn .11n w r.ewna.
.r w nrw.wta w...we..
SKETCH TO ACCOMPANY DESCRIPTION
0 20 40 A_AADWs RIGHT —OF —WAY DEDICATION
RR O-DU TA AVMs
$GALE � D SO rY.SOUAAE MIT 5�
5
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(PEA 0TWOt WaAlO trt)
POWVT OF COAWNCVdENT
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for ! AND Resr Poyr OF MAY
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UPDATES end /w REIA"S GATE eY cX D HIM ei ""I"'y"'I °1I O""tN -TMOA " ASSWANS, -W- — w
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M ow" A.1... 3.0 .nWr.01a+ Rr.W/ a WI.:nM wW cwr +m.e ey Nhws
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tlAS tan1. M...• .p.en ...e .a W.V.eIM u..ynral -..r W/w
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0: \2001 \010 /D3 \D%0 \S0 -ME 213 ST DEMA710N- REY1.01R6
Joe MO.: 01 -0103 DRAWN 9Y: eA5 CHECKED BY: MRM F.e.N /A PO.N /A I DATED: 06/06/07
K:\Docs \0328 \001\354695503.DOC 28
EXHIBIT "C"
SKETCH OF ACCESS PARCEL IMPROVEMENTS
K:\Docs \0328 \001\354695503.DOC 29
M No.gsxwp�uta FXut- tnwv'K «stn 4v t —vp tyv� [ j W Cl[lNagn tun -Jl-ro goW9 turn -ij rip ^ MJ —trpm wt:wK
This instrument prepared by:
Record and return to:
Lillian M. Arando, Esq.
Weiss Scrota Hellman
Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Blvd., Suite 700
Coral Gables, Florida 33134
Tax Folio Numbers:
EXHIBIT "D"
FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made and executed this day of
, 2013, by CITY OF AVENTURA, a Florida municipal corporation (the
"Grantor "), whose mailing address is 19200 West Country Club Drive, Aventura, Florida 33180
to PRESIDENTIAL AVENTURA PROPERTIES, LLC, a Florida Limited liability
Company (the "Grantee "), whose mailing address is
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten and No /100 Dollars ($10.00)
and other good and valuable consideration, the receipt whereof is hereby acknowledged, does
hereby grant, bargain, sell, alien, remise, release, convey and confirm unto Grantee the real
property (the "Property") located in Miami -Dade County, Florida, and more particularly
described as:
SEE EXHIBIT "A "ATTACHED HERETO.
SUBJECT TO:
1. All restrictions, reservations, easements, covenants, agreements, limitations and
other matters appearing of record, provided the foregoing shall not act to reimpose
same;
2. The lien of all ad valorem real estate taxes and assessments subsequent to the date
hereof and subsequent years;
3. All laws, ordinances, and governmental regulations, including, but not limited to,
all applicable building, zoning, land use and environmental ordinances and
regulations; and
4. All matters which would be disclosed by an accurate survey of the Property.
TOGETHER with all the tenements, hereditaments and appurtenances belonging or in
any way appertaining to the Property.
K:\Docs \0328 \001\354695503.DOC 30
TO HAVE AND TO HOLD the same in fee simple forever.
AND GRANTOR hereby covenants with Grantee that Grantor is lawfully seized of the
Property in fee simple; that Grantor has good right and lawful authority to sell and convey the
Property; and that Grantor does hereby specially warrant the title to the Property and will defend
the same against the lawful claims of all persons claiming by, through or under Grantor.
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
executed as of the day and year first written above.
Witnesses:
Print Name:
Print Name:
ATTEST:
City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
City Attorney
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI -DADE )
GRANTOR:
CITY OF AVENTURA, a Florida municipal
corporation
By:_
Name:
Title:
The foregoing instrument was acknowledged before me this day of , 2013,
by , as , of the City of Aventura, a Florida
municipal corporation, on behalf of the corporation, who (check one) [ ] is personally known to
me or [ ] has produced a driver's license as identification.
[SEAL]
Notary Public
Print Name:
Commission Expires:
KADocs\0328\00 1 \3 54695 503. DOC 31
EXHIBIT "A"
LEGAL DESCRIPTION AND SKETCH OF PROPERTY
K:\Docs \0328 \001\354695503.DOC 32
EXHIBIT "E"
FORM OF SELLER'S AFFIDAVIT OF TITLE
SELLER'S NO -LIEN POSSESSION AND GAP AFFIDAVIT
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI -DADE )
BEFORE ME, the undersigned authority, personally appeared _
(the "Affiant" ), who being first duly sworn upon oath, deposes and says:
That the Affiant is the
municipal corporation (the "Corporation").
of CITY OF AVENTURA, a Florida
2. That the Corporation is the owner of fee simple title to the real property located in
Miami -Dade County, Florida, more particularly described on Exhibit "A" attached hereto and by
this reference made a part hereof ( "Property").
3. That there are no mechanic's liens under Chapter 713 of the Florida Statutes filed
against the Property or any portion thereof; that there have been no repairs, improvements or other
work done to or labor, materials or services bestowed upon the Property or any portion thereof for
which any or all of the cost of the same remains unpaid; and that no person, firm or corporation is
entitled to a mechanic's lien against the Property or any portion thereof under Chapter 713 of the
Florida Statutes.
4. The Corporation is in exclusive possession of the Property and no person, firm or
corporation has any interest or claim of possession with respect to the Property or any portion
thereof which is not a matter of record in the Public Records of Miami -Dade County, Florida.
5. That there are no unsatisfied judgments or any federal, state or county tax
deficiencies, which are a lien against the Property or any portion thereof.
6. That the Property is free and clear of all mortgages, liens, taxes, assessments, fees,
and encumbrances whatsoever, except for: (a) real estate taxes and assessments subsequent to the
date hereof and subsequent years; and (b) those matters appearing as exceptions to title in the title
commitment issued on
with an effective date of
(collectively, the "Title Company ").
by
at
7. That there are no actions or proceedings now pending in any state or federal court to
which the Corporation is a parry which would affect the title to the Property or any portion thereof.
KADocs \0328 \001\354695503.DOC 33
8. That to best of Affiant's knowledge, there are no unrecorded easements or claims of
easements affecting the Property or any portion thereof.
9. That the Corporation has never been adjudicated bankrupt or incompetent, nor does
the Corporation have any judgments, tax liens or liens of any nature whatsoever filed against it
affecting the Property.
10. That there are no matters pending against the Corporation that could give rise to a
lien that would attach to the Property or any portion thereof between at
and the recording of the Special Warranty Deed from the Corporation to the
Presidential Aventura Properties, LLC, a Florida limited liability company ( "Grantee "), and that
the Corporation has not and will not execute any instrument that would adversely affect the title to
or transfer of the Property or any portion thereof from the Corporation to the Grantee.
FURTHER AFFIANT SAYETH NAUGHT.
Witnesses: SELLER:
CITY OF AVENTURA, a Florida municipal
corporation
By:_
Print Name: Name:
Title:
Print Name:
ATTEST:
City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
City Attorney
KADocs\032 8\00 1 \3 54695 5 03.DOC 34
STATE OF FLORIDA
COUNTY OF MIAMI -DADE
The foregoing instrument was acknowledged before me this day of
, 2013, by , as , of
the City of Aventura, a Florida municipal corporation, on behalf of the corporation, who (check
one) [ ] is personally known to me or [ ] has produced a driver's license as
identification.
My Commission Expires:
Notary Public
Print Name:
KADocs \0328 \001\354695503.DOC 35
EXHIBIT "A"
PROPERTY
K:\Docs \0328 \001\354695503.DOC 36