96-054 RESOLUTION NO. 96-54
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AVENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER ON BEHALF OF THE CITY TO EXECUTE AND
OTHERWISE ENTER INTO THE ATTACHED CONTRACT
FOR PURCHASE AND SALE OF REAL PROPERTY BY AND
BETWEEN THE CITY OF AVENTURA AND LOLA THOMAS,
TRUSTEE; AUTHORIZING THE CITY MANAGER TO DO
ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF
THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE
DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, THAT:
Section 1. The City Manager is hereby authorized on behalf of the City of
Aventura to execute and otherwise enter into the Contract for Purchase and Sale of Real
Property by and between the City of Aventura and Lola Thomas, Trustee attached hereto
and incorporated herein as specifically as if set forth at length hereat. Said Contract is
subject to final review by the City Attorney.
Section 2. The City Manager is hereby authorized to do all things necessary and
expedient in order to effectuate the execution of the attached Agreement described in
Section 1 above, and to carry out the aims of this Resolution.
Section 3. This Resolution shall become effective immediately upon its adoption.
The foregoing Resolution was offered by Councilmember Cohen, who moved its
adoption. The motion was seconded by Councilmember Rogers-Libert, and upon being put
to a vote, the vote was as follows:
Councilmember Arthur Berger yes
Councilmember Jay R. Beskin yes
Resolution No. 96-54
Page 2
Councilmember Ken Cohen
Councilmember Harry Holzberg yes
Councilmember Jeffrey M. Perlow
Councilmember Patricia Rogers-Libert yes
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED this 5th day of No~er, 1~9,
\
ARTHUR I. SN'~ ;)EF~ MAYOR
ATTEST:
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
EMS/tms
VIA FACSZMI~EANDU,s. ~AIL
Eric M. Soroka, City Manager
City of Aventura
2999 N.E. 191 Street, Ste. 500
Aventura, Florida 33180
Res Proposed Contract ~or Purchase and Sale o~ Reel Property
between Lola Thomas, Trustee, as Seller, and the City of
Aventura, as Buyer (the -Contracts)
Dear Eric:
As requested, enclosed please find an' initial draft of the
Contract. The Contract has been prepared in accordance with the
T~etter of Intent dated October 21, 1996 and our previous
discussions. In this regard, there is a provision regarding review
of title by this office. Title is required to evidence access to
West Country Club Drive (north and South vehicular access). Also
=here is a forty-five (45) day period withinwhich to investigate
the environmental and overall condition of the property and
terminate the Contract if unacceptable.
Please attach a legal description of the property to the
Contract as the copies in our file are f poor quality.
Please call me with any questions or comments you may have
regarding the foregoing.
Steven W. Zelkowitz
SWZ/mae
328.005
Enclosure
cc: David M. Wolpin, Esq.
'~'uZS CONTRACT FOR SA~E 2~ND PURCHASE OF REAL PROPERTY (the
"Contract")is made .and entered into as of the day of
November, 1996, by and between LOLA T~0MA~, TRUSTEE, (the
~Seller~), and the CITY OF AVEh~uiu~, a Florida municipal
corporation (the ,Buyerm).
In consideration of the mutual'agreements herein set forth,
the parties hereto agree as follows:
1. f'n~. The following terms when used in this
Contract for Purchase and Sale shall have the following meanings:
1.1. e tan a . November . , 1996.
1.2. e · s. All reasonable fees charged by
an attorney for his services and the services of any paralegals,
legal assistants or law clerks, including (but not limited to) fees
charged for representation at the trial level and in all appeals.
1.3. ~1~. Any day that the banks in Dads
County, Florida are open for business.
1,4. Buyer. City of Aventura, a Florida municipal
corporation, Attention: Eric M. Soroka, City Manager. Buyer's
mailing address is Government Center, 2999 N.E. 1918t Street,
Suite 500, Aventura, Florida 33180, Telephone : (~05) 466-8910,
Telecopy: (305) 466-8919. Buyer's taxpayer iden~ification number
is
1.5. Buyer's AttorD~¥. Weiss Scrota & Helfman, P.A.,
Attention: Steven W. Zelkowitz, Esq. Buyer's Attorney's mailing
address and telephone number are 2665 South Bayshore Drive, Suite
204, Miami, Florida 3313~. Telephone: (~05) 854-0800; Telecopy:
(305) 854-2323.
1.6. ~IY~. All coats incurred byBuyer with
regard to this transaction, including without limi~ation its costs
incurred in conducting its =due diligence" studies, audit
examinations, surveys, environmental, structural and other exams of
the Property, engineering cos=s, attorneys' fees, refinancing
costa, and any and all other expenses incurred by Buyer in the
event this Con=tact is terminated.
1.7. ~a~h =o Close. The Purchase PriCe plus all of
Buyer's closing costs specified herein, subject to adjustment as
set forth in this Contract, less the Deposit.'
0
1.8. Clos~nq. The delivery of the Deed to Buyer
concurrently with the delivery of the Purchase Price to Seller.
1.9. Closin~ Aq~. Buyer's Attorney as agent for the
Title Company shall be the Closing Agent.
1.10. -q~iD_q~. Sixty (60) days from and after the
Effective Date, unless extended in accordance with the provisions
herein contained.
1.11. ~ntrac~. This Contract for Purchase and Sale of
Real Property.
1.12. D~ed. The Statutory Warranty Ueed which conveys
the Land from Seller to Buyer.
1.13. DePosit. The sum of One Hundred Forty Five
Thousand and 00/100 Dollars ($145,000.00) together with all
interest earned on said sum while it is held in escrow by Escrow
Agent in accordance with this Contract~
1.14. ~. The date this Contract is
executed by the last party to sign it.
1.15. -Escrow A~ent. Buyer's attorney shall be the
Escrow Agent.
1.16. ~overnmental Authority. A~y federal, state,
county, municipal or other governmental department, entity,
authority, commission, board, bureau, court, agency or any
instrumentality of any of them.
1.17. Governmental Requirement. Any law, enactment,
statute, code ordinance, rule, regulation, judgment, decree, writ,
injunction, franchise, permit, certificate, license, authorization,
agreement, or other direction or requirement of~any ~overnmental
Authority now existing or hereafter enacted, adopted, promulgated,
entered, or issued.
1.18. Intanaible Personal Property. All intangible
personal property owned by Seller and used in the ownership,
operation, development, improvement, and maintenance of the Land,
if any, including, without limitation, all contracts and contract
rights, instruments, documents of title, general intangibles, and
transferable licenses, certificates, warrantieS, permits,
guarantees and approvals of governmental entities or other third
parties, if any~
1.19.. band. That certain real property located in Dads
County, Florida more particularly described in Exhibit A attached
hereto and made a part hereof, together with all property rights,
easements, rights-of-way, privileges and appurtenances thereto; all
leases, rents, and profits derived therefrom; all right, title and
interest of Seller in and to any land lying in the bed of any
street, road, highway or avenue, open or proposed, public or
private, in front of or adjoining all or any part of the L~nd to
the center line thereof; and all right, title and interest of
Seller in and to any unpaid award for damage to the Property or any
part thereof by reason of change of grade of any street, road,
highway or avenue adjacent to the Property; all stripe and gores
adjoining and adjacent to the Land; and all oil, gas and mineral
rights.
1.20. Permitted. Exceptions. The title exceptions set
forth in ~xhibit B attached hereto.
1.21. Property. The Land and Intangible Personal
Property.
1.22. r err e ds. Copies of all the following
documents relating to the Property: Any and all Permits,
appraisals, paid tax bill for the years 199S and 1996, tax
assessment notices, title insurance policies, surveys, site plans,
as-built plans and specifications, plats, soil tests, reports,
environmental audits, the applicable trust agreement, engineering
reports and similar tecb21ical data and information, and material
correspondence (which shall mean correspondence, other than
attorney/client privileged correspondence, which.discloses claims,
allegations or ~dverse information regarding the Property or
claims, allegations or adverse information that the Property
violates any ~overnmental Requirements, that there ia Hazardous
Material on or about the P~operty, or that there are defects,
deficiencies or hazardous conditions in or on the Property).
1.23. ~. Subject to the adjustments and
prorations provided in this Contract, the sum of Two Million Nine
Hundred Thousand and 00/100 Dollars ($2,900,000.00).
1.24. Seller. Lola Thomas, Trustee. Seller's mailing
address is .. Seller's taxpayer
iden~ification number is
1.25. Seller's Attorney.
Attention: , Esq. Seller's Attorney's
mailing adulress is Seller's
taxpayer identification number is
1.26. ~. An title insurance commitment
from the Title Company, agreeing to issue the Title Policy to Buyer
upon satisfaction of the Buyer's obligations pursuant to this
Contract.
1.27. Title Policy. An owner's title insurance policy
in the amount of the Purchase Price, insuring Buyer's title to the
Land, subject only to =he Permitted Exceptions.
1.28. Title Company. First A~erican Insurance Co~Dany,
or such other .nationally recognized title insurance company
licensed to write title insurance in the State of Florida selected
by Buyer.
2. r base d S . Seller agrees to sell and convey the
Property to Buyer and Buyer agrees to p~rchase and acquire the
Property from Seller on the terms.and conditions hereinafter set
forth.
3. a~_~. The Purchase Price shall be paid as
,follows:
3.1. ~_9_~. Within five (5) dayaafter the Effective
Date, Buyer shall deliver to Escrow Agent the Deposit. The Deposit
shall be placed by Escrow Agent in an interest bearing escrow
account with a commercial or savings bank doing business in Dads
County, Florida.
3.2. ~q~p~. The Cash to Close and the Deposit
shall be paid to Seller in accordance with the closing 'procedure
hereinafter set forth. Buyer shall receive a credit at closing for
the interest ear, ed on the Deposit.
4. Buyer's Inspection of the Property.
4.1. Seller, s Delivery of Propert-v Record-. Within
five (5) days after the Effective Date, Seller shall deliver to
Buyer the Property Records. Seller shall have a continuing
obligation to deliver to Buyer copies of all Property Records and,
if Seller obtains or becomes aware of any additional Property
Records, Seller represents and warrants that it shall immediately
deliver such additional Property RecOrds to Buyer.
4.2. Buyer's Inspection of the ProPertY. At any time
from and after the Effective Date through the Closing Date, Buyer
or its authorized agents, personnel, employees, or independent
contractors shall be entitled to enter upon the Land during
reasonable business hours and to make all .inspections and
investigations of the Property which it may deem necessary,
including but not limited to soil borings, percolation tests,
engineering, environmental, and toDographical studies, zoning and
availability of utilities. Ail inspections shall be made at
-Buyer's expense. After completing its inspection of the Property,
if Buyer elects to terminate this Contract in accordance with this
Section, Buyer shall leave the L, and in the condition existing on
the Effective Date.
4.3. Termination. If Buyer is not satisfied as to the
results of its inspections with regard to any matter whatsoever,
then in such event Buyer may, in Buyer's sole discretion, elect to
terminate this Contract by furnishing written notice to Seller and
Escrow Agent on or prior to the date which is forty-five (45~ days
after the Effective Date and in such event Escrow Agent 'shall
promptly return to Buyer the Deposit paid by Buyer an d both parties
shall be released:of all obligat~onsunder this Contract except for
those obligatlons which expressly survive termination of this
Contract.
4.4. ~. Buyer hereby agrees to indemnify
Seller and hold Seller harmless against all claims, demands and
liability, including Attorneys' Fees, for nonpayment for services
rendered to Buyer, for mechanics' liens, or for damage to persons
or property arising out of Buyer's investigation of the Property.
This indemnification and agreement to hold harmless shall survive
the termination of this Contract or the Closing.
5. Evidence.Qf Title.
5.1. Delivery of Prior Owner, s Policy. Within five (5)
days following the Effective Date Seller shall deliver to Buyer its
prior owner's policy covering the Property, together with any
existing abstract of title.
5.2. arketableT'tle. At closing, Seller shall convey
to Buyer marketable fee simple title to the Land, subject only to
the Permitted Exceptions.
5.3. itle C it . Buyer shall have thirty (30)
days from the date of receiving the prior owner's policy to obtain
a Title Commitment and to examine same. The policy to be issued
pursuant to the Title Commitment shall affirmatively insure that
any and all restrictions and conditions have not been violated and
that any future violation will not result in a forfeiture or
reversion of title; shall contain no survey exception; shall
contain no printed exceptions and shall affirmatively insure access
to the Property from West Country Club Drive (north and south
vehicular access).
5.4. Additional ExceDt~ons. If the Title Commitment
reflects that title to the Land is subject to any exceptions
("Additional Exceptions,) other than the Permitted Exceptions,
Buyer shall notify Seller in writing of the Additional Exceptions
to which Buyer objects within ten (10) days after Buyer's. receipt
of the Title Commitment. If Buyer receives notice of or otherwise
discovers any Additional Exceptions after delivery of the Title
Commitment and prior to the Closing Date, Buyer shall notify Seller
in writing of the Addltional Exceptions to which Buyer objects
within ten {10) days after Buyer receives notice of such Additional
Exceptions.
5.5. Additional Exceptions Curable by the Pav~ent of
Money. Seller shall be required to cure or remove all Additional
Exceptions which can be cured or removed by the payment of money
prior to the schedule Closing Date.
5.6. Additional Exceptions Not Curable bv the PavmeDt
of MoDe¥. Seller shall have a period of sixty (60) days after
notice from Buyer t6 cure any Additional Exceptions which are not
curable by the payment of money, and the Closing Date shall be
postponed, if necessary, to afford Seller the full sixty (60) days
to cure Additional Exceptions. Seller shall exercise due diligence
and good faith in curing the Additional Exceptions, which shall
include the institution of any necessary lawsuit. If Seller is
unable to cure any Additional Exceptions within the time period
provided, Buyer shall have the following options:
5.6.1. Buyer may postpone the Closing Date for up
to an additional sixty (60) days to afford Seller time to cure the
Additional Exceptions;
5.6.2. Buyer may waive the uncured Additional
Exceptions and accept title in its existing condition; or
5.6.3. Buyer may terminate the COntract by sending
written notice to Seller; Escrow Agent shall return the Deposit to
Buyer; Seller shall pay to Buyer Buyer's Costs' and, except as
specifically set forth in this Contract neither Buyer nor Seller
shall have any further rights or obligations hereunder.
5.7. Postponement of Closinq Pate. If the. Closing Date
has been postponed to afford Seller additional time to cure the
Additional Exceptions, the Closing shall take place twenty (20)
days after Seller sends Buyer written notice that all Additional
Exceptions have been eliminated.
5.8. DeliverVofCertificate of Filin~ Officer. Within
the (10) days following the Effective Date, Seller, at its cost,
shall deliver to Buyer from the filing officer, as described in
Florida Statutes, Section 679.401 (1995), a certified copy of any
filed instrument-naming the Seller as debtor under the Uniform
~ommerclal Code~Secured Transactions.
6.9. x~. Within ten (10) days after the
Effective Date, Seller shall deliver to Buyer from the tax
collector for the county in which the Property is located a
statement of the ad valorem real and personal property taxes for
the property for the year of closing (if then knownand if not then
known, for the prior two years) and whether there are any unpaid
taxes then due.
6. Survey.
6.1. Delivery of SUA~Fey. Within thirty (30) days after
the Effective Date Seller may cause to be prepared at its expense
a current survey (the "Survey.) of the Lalld prepared by ~ land
surveyor or engineer registered and licensed in the StAte of
Florida approved by Suyer. The Survey shall be prepared in
accordance with the Minimum Technical Standards for Surveys in the
State of Florida (Chapter 61917-6, Florida~ministrative Code) and
otherwise acceptable to the Title Company to delete the standard
survey exception. The Survey shall be certified to Buyer, Closing
Agent and lender, if any.
6.2. .~. Suyer shall have ten (10) days
from the date of receiving the Survey to examine same. If the
Survey shows any encroachment on the Land, or if the Survey shows
a/~y other defect which would affect the marketability of title to
the Property, Suyer shall notify Seller of such defect within ten
(10) days after receipt of the Survey and such encroachment or
defect shall be treated in the same manner as title defects are
treated under ~his Contract.
7. Seller's ReDresent~t~Qn~.
7.1. RePresentations and Warranties. Seller hereby
represents and warrants to Suyer as follows:
7.1.1. Seller's Existence. Seller has full power
and authority to own and sell the Property and to comply with the
terms of this Contract.
7..1.2. ~uthority. The execution and delivery of
this Contract by Seller and the consummation by Seller of the
transaction contemplated by this Contract are within Seller's
capacity and all requisite action has been taken to make this
Contract valid and binding on Seller in accordance with its terms.
7.1.3. ~-q-L~=_q~3~. The execution by Seller of
this Contract and the consummation by Seller of the transaction
hereby contemplated does not, and on the Closing Date will not (a)
result in a breach-of or default u/%der any indenture agreement,
instrument or obligation to which Seller is a party and' which
affects all or any portion of the Property, or (b) to Seller's
knowledgel constitute a violation ofany~overnmental Requirement.
The Property and the current use, occupation and condition thereof
do not. violate any of the Permitted Exceptions, zoning or
subdivision regulation or other ~overnmental Requirement
application to the Property.
7.1.4. Title. Seller is the owner of marketable
fee simple title to the Property, free and clear of all liens,
encumbrances and res~rictions of any kind, except the Permitted
Exceptions.
7.'1.5. LitiQ~ion. There are no actions, suits,
proceedings or investigations (including condemnation proceedings)
- 7
pending or, to the knowledge of Seller, threatened against Seller
or the property and Seller is not aware of a/%y facts which might
result in any such action, suite or proceeding. If Seller is
served with process or receivas notice that litigation may be
commenced against it, Seller shall promptly notify Buyer.
7.1.6. No Special Assessments and Impact Fee.q. No
portion of the Property is affected by any outstanding special
assessments or impact fees imposed by any~overnmental Authority.
7.1.7. Access to Hiahwavs an~ Roa~. The Land has
full, free and adequate vehicular and pedestrian access to and from
public highways and roads and Seller has no knowledge of any fact
or condition which would result in the termination of such access.
7.1.8. Parties in Possession. There are no
parties other than Seller in possession of any portionof the Land
as lessees, tenants at sufferance or trespassers. There is no
merchant's association in existence affecting the Property.
7.1.9. Commitments to~overnmental Authorities. No
commitments relating to the Property have been ~aade to any
~overnmental Authority, utility company, school board, church or
other religious body or any homeowner or homeowners association,
merchant's association or any other organization, group or
individual which would impose an obligation upon Buyer or its
successors or'assigns to make any contribution or dedication of
money or land or to construct, install or maintain any improvements
of a public or private nature on or off the Land; and no
~overnmental Authority'has imposed a/~y requirement that any owner
of the Land pay directly or indirectly any special fees or
contributions or incur any expenses or obligations in connection
with the Land.
7.1.10. Adverse Information. Seller has no
information or knowledge of (a) any change contemplated in any
~overnmental Requirement, (b) any judicial or administrative
action, (c) any action by adjacent landowners, or (d) any other
fact or condition of any kind or character which could materially
adversely affect'the current use or operation o~ the property.
7.1.11. Compliance withLaws. The Property and the
present uses thereof are in compliance with all applicable
Governmental Requirements and the requirements of any Insurance
Policy, board of fireunderwriters or any board exercising similar
functions. Seller has fully complied with all Governmental
Requirements in its operation, use and management of the Property.
7.1.12. Wetlands. No portion of the Land is
classified as wetlands, including, but not limited to, mangrove
wetlands or vegetation wetlands, by any~overnmental Authority.
- 8
~ 7.1.13. ~. Seller has received no w~ttten
notice crom any Governmental Authority ~r any other party (dj that
either the Property or the use or operation thereof is currently in
violation of any zoning, environmental or other land use
re~ulatlons, and to Seller's knowledge no such notice has been
issued; (b) that Seller is currently in violation, or with the
passage of time will be in violation of the requirements of any
ordinance, law, or regulation or order of .any ~overnmental
Authority, or (c) asserting that Seller is required to perform work
at the Property and to Seller's knowledge no such notices have been
issued. If Seller receives such a notice or a violation is issued
or filed prior to Closing, Seller shall promptly notify Buyer and
shall be responsible to cure any such violation so long as the
aggregate cost thereof doss not exceed $200,000.00, in which event,
the Closing shall be consummated as provided for herein and Seller
shall (a) cure said violation exercising due diligence before the
Closing Date; or (b) if such cure can/lot be completed by the
Closing Date, then Buyer shall receive a credit-against the
Purchase Price in the amount of such cost to cure such violation as
agreed to by the parties, and Seller shall have no further
obligation with respect to curing such violations. If the cost to
cure such violation exceeds $200,000.00 and Seller does not agree
to cure such violation or credit Buyer such amount, then Buyer
shall have the right to be exercised within ten (10) days of
receipt of Seller's election to either: (a) close the within
transaction, and receive a 'credit in the amount of $200,000.00
against the Purchase Price and assume all obligations to cure the
violation at its expense; or (b) terminate this Contract, in which
event Seller shall pay to Buyer Buyer's Costs and thereafter,
except as otherwise specifically set forth in this Contract,
neither Buyer nor Seller shall have 'any fdrthe~ rights or
obligations hereunder.
7.1.14. Survival of RePresentations. All of the
representations of the Seller set forth in this Contact shall be
true upon the execution of this Contract, shall be deemed to be
repeated at and as of the Closing Date, and shall be true as of the
Closing Date. All. of the representations, warranties and
agreements of the Seller set forth in this Contract shall survive
the Closing.
8. Environmental Condition of ProDertv: Indemnification;
Re n
For the purposes of this Agreement, the term
"Environmental Laws" shall mean all federal, state and local laws,
including statutes, regulations, ordinances, codes, rules and other
governmental restrictions and requirements relating to the
environment, hazardous substances, hazardous wastes, pollutants or
contaminants including, but not limited to, the Federal Solid Waste
Disposal Act, the Federal Clean Air Act, the Federal Clean Water
Act, the Federal Resource Conservation and Recovery Act of 1976,
- 9
the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Federal Superfund Amendments and
Reauthorizatlon Act of 1986, Chapters 161, 253, 373, 376.~nd 403,
Florida Statutes, and the rules and regulations of Florida
Department of Environmental Protection.
8.1 ~9~g~l~. Sellerherebyrepresents, warrants
and covenants to Buyer the following statements are true and
current, and Buyer's obligation to close shall be conditioned on
the same being true as of the Closing Date:
8.1.1 The Property is free from contamination, that
there has not been thereon a release, discharge or emission, or
threat of release, discharge or emission, of any hazardous
substance, hazardous waste, pollutant, or contaminant as defined by
Environmental Laws, and that the Property does not contain, and is
not affected by: asbestos, urea formaldehyde; polychlorinated
biphenyls; underground oil, gasoline or .storage tanks; or
landfills, land disposals or dumps~
8.1.2 Seller has not given, nor should give, nor
has received, any notice, letter, citation, order, warning,
complaint, inquiry, claim or demand that the Seller has violated,
or is about to violate, or that the Property does not comply with
any Environmental Laws; there has been a release, or there is a
threat of release, of hazardous substances, hazardous wastes,
pollutants or contaminants as defined in Environmental Laws on the
Property; the Seller may be or is liable, in whole or in part, for
the costs of cleaning up, remediating, removing or responding to a
release of hazardous substances, hazardous wastes, pollutants or
contaminants; the Property is subject to a llen in favor of any
governmental entity for any liability, costs or damages, under
Environmental Laws.
8.1.3 There is no litigation or governmental
proceeding pending, or to the knowledge of the Seller threatened
against the Seller Which if adversely determined would result in
any material adverse change in the Property including, without
limitation, any actual or threatened civil or criminal action
brought under anyEnvlronmental Laws.
8.1.4 Seller has never caused or permitted any
hazardous materials, hazardous wastes, pollutants or contaminants
to be placed, held, located or disposed of on, under or at the
Property or anypartthereof, and neither the Property nor any part
thereof has ever contained an underground oil, gasoline or storage
tank, or been used as.a dump site or storage (whether permanent or
temporary) site for any hazardous material, hazardous waste,
pollutant or contaminant.
8.2 ' io . Seller covenants and agrees that
it will indemnify, defend and hold harmless Buyer from anyand all
- 10
claims, judgments, liabilities, losses, damages, actions,, causes of
actions, suits, response costs, remediation costs, fines,
penalties, fees, and expenses arising out of or in any wayrelating
to the existence, use, or misuse, handling or mishandling,-storage,
spillage, discharge or seepage into the ground, in water bodies or
the ground water (including aquifers) at any time prior to Closing
of any hazardous materials, hazardous wastes, pollutants or
contaminants in, on, under, at or used upon the Property including,
without limitation: (i) claims of third parties (including,
without limitation, individuals, companies and governmental
agencies) for damages, penalties, response costs, clean-up costs
and injunctive or other relief; (ii) costs to bring the Property
into compliance with Environmental Laws, including all costs of
remediation, removal and restoration, including fees of attorneys
and experts, and costs of reporting the existence of hazardous
materials, hazardous wastes, pollutants or contaminants to any
governmental agency; and (iii) any and all expenses or obligations
including reasonable attorneys, fees, incurred at, before and after
any trial or therefrom whether or not taxable as costs, including,
without limitation,, attorneys' fees, witness fees, deposition
costs, copying and telephone charges and other expenses all of
which shall be paid by Seller to Buyer on demand.
8.3 Survivability of Representations and
n mni ' a ' n. All of the representations of the Seller set
forth in this Contract shall be true upon 'the execution of this
Contract, shall be deemed to be repeated at and as of the Closing
Date, and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the Seller set forth
in this Contract including, but not limited to the indemnification
set forth herein shall survive the Closing.
9, Sellerts Affir~a~ve Covenants.
9.1. Acts Affectin~ ProD¢~y. From and after the
Effective Date, .Seller will refrain from (a) performing any
grading,' excavation, construction, or making any other cha~ge or
improvement upon or about the Property; (b} creating or incurring,
or suffering to exist, any mortgage, lien, pledge, or other
encumbrances in any way affecting the Property other than the
germittedExceptions; and (c) committing any waste or nuisance upon
the ProPerty.
9.2.. Maintenance of Property. From the Effective Date
until the Closing, the Property will be kept in good order and
condition. Seller will observe all Governmental Requirements
affecting the Property and its use, until the Closlng Date.
9.3. Notices of Chanaes in Laws. Seller will advise
Buyer promptly of any change in any applicable Governmental
Requirement which might affect the value or use of the Property to
Buyer of which Seller obtains knowledge.
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9.4. Further Assur-nT~. In addition to the
obligations required to be performed hereunder by Seller at the
Closing, Seller agree~ to perform such other acts, and to execute,
acknowledge, and. delzver subsequent to the Closing such other
instruments, documents, and other materials as Buyer may reasonably
request in order to effectuate the consummation of the transactions
contemplated herein and to vest title to the Property in Buyer.
10. Buyer's Represe~tstio~s. Buyer hereby represents and
warrants to the Seller as of the Effective Date and as of the
Closing Date as follows:
10.1. Buyer's Exis~enge. Buyer is a Florida mu~icipal
corporation duly organized, existing, in good standing and
qualified to do business under the law of the State of Florida, and
Buyer has full power and authority to purchase the Property and to
comply with the terms of this Contract.
'10.2. Authori~y. The execution and delivery of this
Contract by Buyer and the consummation byBuyer ofthe transaction
hereby contemplated are within Buyer's capacity and all requisite
action has been taken to make this Contract valid and binding on
Buyer in accordance with its terms.
11. Conditions to Buyer's Obligation to.~los~. Buyer shall
not be obligated to close under this Contract unless and until each
of the following conditions are either fulfilled or waived, in
writing, by Buyer:
11.1. ComDliance With Covenants. Seller shall have
performed all covenants, agreements and obligations and complied
with all conditions required by this Contract to be performed or
complied with by Seller prior to the Closing'Date.
11.2. Delivery of Documents. Seller shall be prepared
to deliver to Buyer all instruments and documents to be dellvered
to Buyer at the CloSing pursuant to this Contract.
11.3. No Prior Termi~atio~. This Contract shall not
have been previously terminated pursuant to any other provision
hereof.
11.4. Satisfaction of Other Conditions.. All conditions
to Closing otherwise contained in this Contract shall have been
satisfied.
11.5. RePresentations and Warranties. All of Seller's
representations and warranties shall be true a~d correct.
11.6. Status of Title. The status of title to the Land
shall be as required by this Contract.
12 -
12. ~-itt~. Subject to all of the provisions o~ this
Contract, Buyer and Seller shall close this transaction on the
Closing Date co~lmencing at 10=00 a.m. The Closing shall take place
at the office of Buyer's Attorney; or, if the Buyer is financing
all or a portion of the Purchase Price by an institutional loan, at
the office of such lender or its attorney.
13. Seller's Closino Documents.
13.1. ou~~. At Closing, Seller shall deliver the
following documents ("Seller's ClosingDocuments,) to Buyer=
13.1.1. Statutorv. Warranty De~d. A Statutory
Warranty Deed which shall be duly executed and acknowledged by
Seller so as to convey to Buyer good and marketable fee simple
title to the Land free and clear of all 1lens, encumbrances and
other conditions of title other than the Permitted Exceptions.
13.1.2. Seller's No Lien~ ~an and FIRPTAAffidavit.
An affidavit from Seller attesting that (a) no individual, entity
or Governmental Authority has ~ny claim against the Propertyunder
the applicable contractor's lien law, (b) except for Seller, no
individual, en~ity or Governmental Authority is either in
possession of the Property or has a possessory interest or claim in
the Property, and (c} no improvements to the Property have been
made for which payment has not been made. The Seller's affidavit
shall include language sufficient to enable, the Title Company to
insure the "gap", i.e., delete as an exception to the Title
Commitment any matters appearing between the effective date of the
title Commitment and the effective date of the Title Policy. The
affidavit shall also include the certification of non-foreign
status required under Section 1445 of the Internal Revenue Code to
avoid th~ withholding of income tax by the Buyer.
13.1,3. Bill of Sale. An absolute bill of sale
with full warranty of title conveying any personal property to
Buyer free and clear of all liens, encumbrances and security
interests.
13.1.4. General A~sionmen$. A~eneral Assignment
conveying the Intangible Personal Property.
13.1.5. Closina Statement. A closing statement
setting forth the Purchase Price, Deposit and all credits,
adjustments and prorations between Buyer and Seller, and the net
Cash to Close due Seller.
13.1.6. Fornl 1099-S. Such federal income tax
reports respecting the sale of the Property as are required by the
Internal Revenue Code.
13.1.7. Auth0rizina Resolut~n~. Certificates or
such resolution~ in form and content as Buyer may reasonably
request evidencing Seller's existence, power, and authority to
enter into and execute this Contract and to consummate the
transaction herein contemplated.
13.1.8. Additional Documents. Such additional
documents as Buyer or Title Company may reasonably request in order
to convey the Property to Buyer including, but not limited to,
affidavits regarding the trust.
13.1.9 Pre-Closina Delivery. Copies of .Seller's
CloslngDocuments shall be delivered to Buyer's Attorney for review
not less than seven (7) days prior to the Closing Date.
13.1.10 Disclosure Affidavit. Seller shall also
deliver to Buyer at least ten (10) days prior to Closing, an
affidavit in recordable form in order to comply with the provisions
of § 286.23, Fla. Stat.
14. Closina 'Procedure. The Closing shall proceed in the
following manner:
14.1. ~Transfer Of FuDds. Buyer shall pay the Cash to
Close and Escrow Agent shall deliver the Deposit to the Closing
Agent by wire transfer to a depositorydesignatedbyClosingAgent.
14.2. Delivery of Documents. Seller shall deliver
Seller's Closing Documents to Closing Agent.
14.3. Disbursement of .Funds and ..DQcum~Dts. Once the
Title Company has 'insured the gap," i.e., endorsed the Title
Commitment to delete.the exception for matters appearing between
the effecti~e date of the Title Commitment and the effective date
of the Title Policy, then Closing Agent shall disburse the Deposit
and Cash to Close to Seller, and the Seller's Closing Documents to
Buyer; provided, however, that Closing Agent shall record the Deed
in the Public Records of the county where the Land is located.
15. Prorations and Closip= Costs.
15.1. Prorations. The following items sha11 be prorated
and adjusted between Seller and Buyer as of the midnight preceding
the Closing, except as otherwise specified:
15.1.1. Taxes. Seller acknowledges'and agrees that
the Property is being purchased by an exempt governmental entity
and that Seller must comply with § 196.29~, Fla. Stat. regarding
real estate taxes.
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15.1.2. U ' . Seller shall receive a
credit for any deposits with utility companies to the extent such
dePOsits are assignable and are assigned to Buyer.
15.1.3. ~. Water, sewer,.electricity, gas
and other utility charges, if any, shall be prorated on the basis
of the fiscal period for which assessed, except that if there are
utility meters for the Property, apportionment at the Closing shall
be based on the last available reading.
15.1.4. License and Permit Fees. License and
permit fees shall be prorated only if the respective license or
permit is transferable to Buyer.
15.1.5. Other Items. All other income and expenses
of the Property shall be prorated or adjusted in accordance with
this Contract.
15.1.6. Pendina and Certified Lie~. Certified
governmental liens and pending governmental liens for which work
has been substantially completed shall be paid by the Seller and
other pending liens shall be assumed by the Buyer.
15.2. Seller's Closina Costs. Seller Shall pay for the
following items prior to or at the time of Closing:
Documentary stamps and surtax on the Deed
Cost of recording any corrective instruments
Certified and pending governmental special
assessment liens for which the work has been
substantially completed
15.3. Buyer's Closina Cost~. Buyer shall pay for the
following.items prior to or at the time of Closing:
Recording of Deed
Title Commitment
Title Policy
Survey
. Pending special assessment liens for
which the work has not been
substantially completed
Any costs and'fees in connecti°n
with the Existing Mortgage,
modifications and assumptions
15.4. ReDroratlons. At the Closing, the above
referenced items shall be prorated and adjusted as indicated. If
subsequent to the Closing taxes for the year of Closing are
determined to be higher or lower than as prorated, a reproration
and adjustment will be made at the request of Buyer or Seller upon
presentation of actual tax bills, and any payment required as a
- 15
result of the reproration shall be made within ten (10) days
following demand therefor. All other prorations and adjustment
shall he"final. If any refund of real property taxes ie made after
the Closing Date for a period .prior to the Closing Date, the same
shall be applied' first .to the cost incurred in obtaining same and
second to the refunds due to tenants by reason of the provisions of
their respective Leases; the balance, if any, shall be paid to
Seller (for the period prior to the Closing Date) and to Buyer (for
the .period commencing with the Closing Date). The provisions of
this Section shall survive the delivery of the Deed.
16. se~_q~_~. Buyer shall be granted full possession
of the Property at Closing subject to the Leases.
17. Condemnation and Damage bv Casualty.
17.1. ~. In the event of the
institution of any proceedings byanyGovernmental Authority which
shall relate to the proposed taking' of anyportion of the Property
by eminent domain prior to Closing,-or in the event of the taking
of any portion of the Property by eminent domain prior to Closing,
Seller shall promptly notify Buyers_nd Buyer shall thereafter have
the right and option to terminate this Contract by giving Seller
written notice of Buyer's election to terminate within thirty (30)
days after receipt by Buyer of t.he notice from Seller. Seller
hereby agrees to furnish Buyer with written notice of a proposed
condemnation within two (2) business days after Seller's receipt of
such notification. Should Buyer terminate this Contract, then,
except as otherwise provided for herein, the parties hereto shall
be released from their respective obligations and liabilities
hereunder. Should BUYer elect not to terminate, the parties hereto
shall proceed to Closing and Seller shall assign all of its right,
title and interest in all awards in connection with such taking to
Buyer.
17.2. Damage by Casualty.
17.2.1'. Damage Not in Excess of $~0.0,~0,0~. If,
after the Effective Date but prior to'the Closing Date, any damage
occurs from fire, windstorm or other casualty to the Property, and
the cost to repair such loss or damage does not exceed TwoHundred
Thousand Dollars ($200,000.00), then in such even the Closing shall
be consummated as provided for herein and Seller shall cause said
damage to be repaired and the Property to be restored to the
condition in which it existed immediately prior to such damage.
Seller shall effect such repair and restoration before the Closing
Date, and if such damage cannot be repaired by the Closing Date,
then at the Buyer's option (a) the Closing Date shall be postponed
until such repairs have been completed, or (b) the reasonable cost
of such repairs, as estimated by the Buyer, shall be withheld from
the Purchase Price and paid over to the Seller upon completion of
16 -
the repairs and delivery to the Buyer of satisfactory evidences that
all mechanics, labors and materialmen providing services or
materials in connection therewith have been paid in full and the
Seller's obligation to complete such repairs promptly shall survive
the Closing hereunder.
17.2.2. Damage in Excess of ~200.000.00. If the
cost to repair such damage or destruction exceeds $200,000.00, then
.within thirty (30) days after written notice from Seller that such
costs exceed $200,000.00, Buyer shall have the option by written
notice to Seller, to terminate this Contract and except aa
otherwise provided for herein, neither Buyer nor Seller shall have
any further rights or obligations hereunder. Unless Buyer timely
notifies Seller of its election to terminate this Contract, Buyer
shall be required to close this transaction in accordance with the
Contract and Seller'shall assign unto Buyer any and all insurance
proceeds. In such event, Seller shall ha~e no additional
obligation if such insurance proceeds are insufficient or
unavailable to repair such damage.
18.1. Bu er's Default. In the event that this
transaction fails to close due to a refusal or default on the part
of Buyer, the sole right of the Seller shall be to recover, and the
sole liability of the Buyer shall be to pay to Seller the Deposit
aa agreed upon liquidated damages and thereafter, except as
otherwise specifically set forth in this Contract, neither Buyer
nor Seller shall have any further obligation under this Contract.
Buyer and Seller acknowledge that if Buyer defaults, Seller will
suffer damages in an amount Which cannot be ascertained with
reasonable certainty on the Effective Date and the amount of the
liquidated damages to be paid to Seller most closely approximates
the amount necessary to compensate Seller in the event of such
default. Buyer and Seller agree that this is a bona fide
liquidated damages provision and not a penalty or forfeiture
provision. The Seller shall not be entitled to any other remedy
against Buyer.
18.2. Seller's Default. In the event that this
transaction fails to close due to a refusal or default on the part
of Seller, Buyer shall have the option to terminate the Contract in
which .event Seller shall reimburse Buyer for Buyer's Costs, and
thereafter neither Buyer nor Seller shall have any further
obligation hereunder, or, in the alternative, Buyer shall b~ve the
right to seek specific performance and/or damages against Sell'er.
19. Real Estate Commission. Seller represents and warrants
to Buyer and Buyer represents and warrants to Seller that there are
no brokers, salespersons or finders involved in this transaction.
Seller and Buyer a~ree to indemnify and hold each other harmless
from any and all claims for any brokerage fees. or similar
commissions asserted by brokers, salespersons or finders claiming
by, through or under, the indemnifying party. The provisions of
this Section shall survive the Closing or termination of this
Contract.
20. Not/ces. Any notice, request, demand, instruction or
other communication to be given to either party 'hereunder, except
where required to be delivered at the Closing, shall be. in writing
and shall be hand-delivered or sent by Federal Express or a
comparable overnight mail service, or mailedbyU.S, registered or
certified mail, return receipt requested, postage prepaid, to
Buyer, Seller, Buyer's Attorney, and Seller's Attorney, at their
respective addresses set forth in Section I of this Contract.
Notice shall be deemed to have been given upon receipt or refusal
of delivery of said notice. Notices may be given by telecopy
provided a hard copy of such notice is mailed in accordance with
this Section on the next business day following such telecopy
delivery. The addressees and addresses for the purpose of this
paragraph may be changed by giving notice. Unless and until such
written notice is received, the last addressee and address stated
herein shall be deemed to continue in effect for all purposes
hereunder.
21. AsS%qnment. This Contract may be freely assigned by
Buyer without Seller's consent and thereafter Buyer shall be
relieved of all obligation hereunder provided that Buyer's assignee
shall be.obligated to close under this contract in the same ~arn'ler
as Buyer. In the event of an assignment of this Contract by Buyer,
a duly executed Assignment of this Contract shall be delivered to
Seller on or before the Closing Date.
22. ~iscellan~ou~.
22.1. CounterDar~s. This Contract may be executed in
any number of counterparts, any one and all of which shall
constitute the contract of the parties and each of which shall be
deemed an original.
22.2. Section and Paragraph Hearinas. The section and
paragraph headings herein contained are for the purposes of ~
identification only and shall not be considered in construing this
Contract.
22.3. Amendment. No-modification or amendment of this
Contract shall beof any force or effect unless in.writing executed
by both Seller and Buyer.
22.4. ~t~orneys' Fee~. If any party obtains a judgment
against any other party by reason of breach of this Contract,
Attorneys' Fees and costs shall be included in such judgment.
- 18 -
22.5. ~. During the term o~ this
Contract, neither Seller nor Buyer or their respective officers or
employees shall divulge or communicate any of the particular terms
of.this Contract or the existence of this Contract or any matters
related to this transaction to any third party (except for
counsel). Buyer may communicate with professional agents or
consultant which are necessary for advising Buyer regarding any
inspections or due diligence items set forth in this Contract.
Neither Seller nor Buyer shall divulge any information to third
parties without specific written consent of the other party.' After
closing, Seller may disclose any information which is in the public
records, and Buyer may disclose any information which it desires to
disclose.
22.6. ~. This Contract shall be interpreted
in accordance with the internal laws of the State of Florida, both
substantive and remedial.
22.7. nt re Cont ct. This Contract sets forth the
entire agreement between Seller and Buyer relating to the Property
and all subject matter herein and supersedes all prior and
contemporaneous negotiations, understandings and agreements,
written or oral, between the parties.
22.8. ~ime,is of ~he Essence. Time is of the essence in
the performance of al.1 obligations by Buyer and Seller under this
Contract.
22.9. Computation of Tim~. Any reference herein to time
periods of less than six (6) days shall exclude Saturdays, Sundays,
and legal holidays in the computation thereof. Any time period
provided for in this Contract which ends on a Saturday, Sunday or
legal holiday shall extend to 5:00 p.m. on the next full business
day.
22.10. Successors and Ass~qn~. This Contract'shall inure
to the benefit of and be binding upon the permitted successors and
assigns of the parties hereto.'
22.11~ Survival. All representations and warranties of
Seller set forth.in this Contract shall survive the Closing.
22.12. cc tan e . This Contract shall be null and
void and of no further force and effect unless a copy of same
executed by Seller is delivered to Buyer by the close of business
on the.Acceptance Date.
22.13. Construction of Contract. All of the parties to
this Contract have participated freely in the negotiation and
preparation hereof; accordingly, this Contract shall not be more
strictly construed against any one of the parties hereto.
- 19 -
22.!4. Gender. As used ~,~:- this Contract, the masculine
........................... ~-~,= and ~,=uuuz-, the singular s}~li include
Florida. Additional info~ation regarding ~--~%2'TL%-i2%L~J~
may be obtained from yo,!r county Dub!lc health unit.
IN WITNESS WHEREOF, the parties have executed this
Co,hract as of the dates indicated below.
Witnesses: SELLER:
Date:
Print Name:
CITY ~m A~_~NTL~, a m~ ~
municipal co=rporatlon
.By:
Print ~amc: Name: ~ric M. Soroka
Ti[ie: City ~anager
Date:
Print ~'-
_~,_, Attorney
- 2O
,~eaal D~c~/.'Dt/.on of th*, L~q~
Certain real property located in Dade Co~r, ty, Florida more
particularly daa~r~h~,~, ~ f'--,!!,'-~w_=:
21 -
Pe~'n~.tt:ed