2006-029
RESOLUTION NO. 2006-29
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF A VENTURA, FLORIDA, APPROVING
PURCHASE AND SALE AGREEMENT BETWEEN
GULFSTREAM PARK RACING ASSOCIATION, INC.,
AND THE CITY OF AVENTURA CONCERNING CITY'S
ACQUISITION OF LAND FOR CITY'S WATERWAYS
PARK PROJECT; PROVIDING FOR IMPLEMENTATION;
PROVIDING FOR EFFECTIVE DATE.
WHEREAS. the City Commission of the City of A ventura, Florida, fmds that approval
of the Purchase and Sale Agreement (the "Agreement") between Gulfstream Park Racing
Association, Inc. ("Gulfstream") and the City of Aventura, Florida (the "City"), is in the best
interest of the City.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1.
and adopted.
Recitals Adopted. That the above stated recital is hereby confirmed
Section 2. Al!reement Approved. That the Agreement between Gulfstream and
the City, in substantially the form which is attached hereto, is hereby approved, and the City
Manager is hereby authorized to execute the Agreement, on behalf of the City, once approved
as to form and legal sufficiency by the City Attorney.
Section 3. Implementation. That the City Manager is hereby authorized to take
any and all action which is necessary to implement the Agreement and this Resolution.
Section 4. Effective Date. That this Resolution shall become effective immediately
upon adoption hereof.
The foregoing Resolution was offered by Commissioner Joel, who moved its adoption. The
motion was seconded by Commissioner Holzberg, and upon being put to a vote, the vote was as
follows:
Commissioner Zev Auerbach
Commissioner Bob Diamond
Commissioner Harry Holzberg
Commissioner Billy Joel
Commissioner Michael Stern
Vice Mayor Luz Urhaez Weinberg
Mayor Susan Gottlieb
yes
yes
yes
yes
yes
yes
yes
Resolution No. 2006-29
Page 2
PASSED AND ADOPTED this 2'" day of May, 2006.
vd ! //
/ f-tV?/ /~---;z,_U-
...--susan Gottlieb, Mayor
Attest:
Approved as to Form and Legal Sufficiency:
f~
City Attorney
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AN9; AGREEMENT ("Agreement") is made and entered into
as of the ~ day of , 2006 between GULFSTREAM PARK RACING
ASSOCIA TION, INC., a Florida c rporation ("Seller"), and the CITY OF A VENTURA, a
Florida municipal corporation ('Purchaser").
RECITALS
1. Seller is the owner of the Property (as herein after defined) located in the City of
Aventura, Miami-Dade County, Florida; and
2. Seller is also the owner of the Adjacent Property (as herein after defined) located
in the City of Aventura, Miami-Dade County, Florida; and
3. Pursuant to Resolution No. 2005-10 enacted by the City Commission on March
lO, 2005, the City of A ventura (the "City") was authorized either to purchase, upon mutually
acceptable terms and conditions negotiated with Seller, or acquire through the exercise of the
City's eminent domain powers for public park purposes, a parcel of vacant land containing
approximately six (6) gross acres; and
4. Seller desires to dedicate and convey to the City for public park purposes an
approximately one (1) gross acre +/- parcel of land concurrently with the closing of said
purchase and sale transaction, all upon the terms and conditions hereinafter set forth; and
5. City agrees to purchase and Seller agrees to sell the remaining six (6) acre parcel
for the price and upon the terms and conditions hereinafter set forth.
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 Additional Park Donation Land. The approximately one (I) gross acre +/- parcel
of unimproved land more particularly described in Exhibit "C" attached hereto and made a part
hereoflying adjacent to the Six (6) Acre Park Site to be sold and conveyed to the City.
1.2 Adjacent Property. The real property, consisting of the Commercial Propetiy and
the MO District Property, owned by Seller and located adjacent to the Property and more
specifically described on Exhibit "D" attached hereto and made a part hereof
1.3 Business Day. Monday through Friday excluding bank holidays on which
national banking associations in Miami-Dade County are authorized to be closed.
(M2J63702,12 )
1.4 Closing. The closing and consummation of the purchasc and sale of the Property
as contemplated by this Agreement.
1.5 Closing Date (or Date of Closing). The datc upon which Closing occurs.
1.6 Commercial Property. That portion of Seller's Adjacent Property which is zoned
B-2 and is more particularly described on Exhibit "B" attached herelO and made a pm1 hereof.
1. 7 Condemnation Proceeding. Any proceeding or threatened proceeding 1Il
condemnation, eminent domain or written request in lieu thercof.
18
Purchaser.
Deed. The special warranty deed of conveyance of the Property from Seller to
1.9 Development Agreement. The Development Agreement with respect to the
Commercial Property substantially in the form attached hereto as Exhibit "E", subject to review
and approval pursuant to the City's public hearing process.
1.10 Eamest Monev. The funds to be paid by Purchaser to Escrow Agent pursuant to
Section 3 hereof; plus any interest earned thereon.
1.11 Easement Agreement. An easement agreement substantially in the form attached
hereto as Exhibit "F" pursuant to which Purchaser will grant easements to the Seller for the
following purposes: (a) a twenty foot (20') utility easement along the northern, southern and
western perimeters of the Propel1y for the benefit of the Seller's Adjacent Property; and (b) a 25'
drainage easement on the Property adjacent and parallel to the right of way for 213'11 Street for
stormwater drainage from the Seller's Adjacent Property through the Property. Purchaser will
provide copies of its park improvement plans and drawings for the Property to Seller for review
and comment prior to filing for permits, and Seller agrees to use commercially reasonable efforts
to minimize the width of the above described easement areas.
1.12 Effective Date. The date when the last one of Seller or Purchaser has signed and
initialed all changes to this Agreement.
1.13 Environmental Report. That certain Phase I Envirornnental Audit Update
prepared for Purchaser by EAS Engineering, Inc., dated August 10, 2005 which updates a Phase
I and Phase II Site Assessment prepared by EAS Engineering, Inc. on February 24, 2004
previously prepared for Purchaser.
1.14 Environmental Requirement. All laws, statutes, ordinances, rules, regulations,
orders, codes, licenses, permits, decrees, judgments, directives or the equivalent of or by any
federal, state or local governmental authority and relating to or addressing the protection of the
enviromnent or human health and relating to the Property.
1.15 Escrow Agent. Weiss Serota Helfman Pastoriza Cole & Boniske, P.A.
1.16 Evidence of Authority. Evidence of authority for the execution and performance
of this Agreement by Seller and Purchaser including, without limitation, (1) as to Seller,
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necessary resolutions, authorizations and consents of Seller and its members including the
production of any Seller organizational dOCUlnents as Inay be reasonably required by the Title
Company and (2) as to Purchaser necessary resolutions, authorizations and consents of
Purchaser, the City Commission of the City of A ventura and such other evidence of authority as
Seller may reasonably request.
1.17 Gulfstream Park Tract. The land and improvements lying in Hallandale Beach,
Florida and legally described in Exhibit "G" attached hereto
1.18 Governmental Authoritv. Any federaL state, county, municipal or other entity,
authority, commission, board, bureau, court, agency or any instrumentality of any of them.
1.19 Hallandale Beach DRI Land. The real property and improvements (excluding,
but adjacent to, the Gulfstream Park Tract) now or hereafter located on the real property owned
by Seller and lying in Hallandale Beach, Florida and legally described in Exhibit "P" attached
hereto.
1.20 Hazardous Substances. Any material or substance that, whether by its nature or
use, is now or hereafter defined as hazardous waste, hazardous substance, pollutant or
contaminant under any Environmental Requirement, or which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and which is
regulated under any Environmental Requirement, or which is or contains asbestos, PCB's,
petroleum, gasoline, diesel fuel or another petroleum hydrocarbon product.
1.2 I Improvements. All structures, fixtures, including, without limitation, all utility
systems and drainage facilities, if any, and any other improvements and facilities located on the
Property. The Improvements specifically include any existing underground improvements such
as storm water management, irrigation, and water and sanitary sewer systems and related
appurtenances. The parties acknowledge the Property is vacant and there may not be any
Improvements.
1.22 Intangible Propertv. All intangible property owned by Seller and used solely in
connection with or solely relating to the ownership, use, development, operation, management,
occupancy or maintenance of the Property including, but not limited to, the Permits and all
public and private contract rights and development or usage rights of Seller with respect to the
Property. .
1.23 Legal Requirement. All laws, statutes, codes, acts, ordinances, orders, judgments,
decrees, injunctions, rules, regulations, permits, licenses, authorizations, directions and
requirements of all Governmental Authorities and quasi-governmental authorities, officials,
agencies, and officers, ordinary or extraordinary, which now are applicable to the Property or the
Adjacent Property or any use, operation or condition thereof.
1.24 MO District Propertv. That portion of Seller's Adjacent Property which is zoned
MO and is more particularly described on Exhibit "H" attached hereto and made a part hereof
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125 Overhead FPL Transmission Line Easement. The existing easement in favor of
Florida Power and Light Company located on the Property, along the north side of N. E. 21 3th
Street, as more particularly shown on the Survey of the Property.
126 Owner's Title Policv. An Owner's marketability policy of title insurance issued
by the Title Company, at Purchaser's expense, on the most current ALTA Form for the Property,
subject only to the Permitted Exceptions, and containing such additional endorsements permitted
under Florida title insurance regulations as requested by Purchaser.
127 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 now or prior to Closing.
1.28 Permitted Exceptions. Those matters identified or referred to in Section 5.3 and
such other title exceptions as may hereafter be approved in writing by Purchaser (or deemed to
have been approved by Purchaser) subject to and in accordance with the terms and provisions of
Section 5 herein.
1.29 Person. Any individual, sole proprietorship, partnership, limited liability
partnership, joint venture, trust, unincorporated organization, association, corporation, limited
liability company, 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).
1.30 Property. The approximately seven (7) gross acres of real property more
particularly described on Exhibit "A" attached hereto and incorporated herein by reference
(comprising both the Six (6) Acre Park Site and the Additional Park Donation Land) and
appurtenant easements thereto, together with all of Seller's right, title and interest in and to all
easements, rights of way, strips and gores of land, tenements, hereditaments and appurtenances,
reversions, remainders, privileges, licenses and other rights and benefits belonging solely to,
running solely with or in any way relating solely 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 real property.
1.31 Purchaser's Attorney. Weiss Serota Helfman Pastoriza Cole & Boniske, PA.,
Attention: David M. Wolpin, Esq. Purchaser's Attorney's mailing address is 2665 South
Bayshore Drive, Suite 420, Miami, Florida 33133, Telephone: (305) 854-0800; Telecopier: (305)
854-2323.
1.32 Restricted Access Covenant. The Declaration to be executed by Seller and filed
in the public records on the Closing Date by Seller in the fonn attached hereto as Exhibit "]" and
made a part hereto for the purpose of permanently prohibiting vehicular access (other than as
may be required by government for emergency vehicles) to and from Seller's Hallandale Beach
DR] Lands and the Gulfstream Park Tract to N.E, 213th Street on and after the date the first
temporary certificate of occupancy is issued for a residential building constructed on the
Adjacent Property, provided, however, that until such access is permanently prohibited as set
{M2363702;J2)
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forth above, vehicular access to the Gu\fstream Park Tract from N .E. 113lh Street shaH be
permitted on an interin1 basis subject to the follc)\\/ing restrictions: (i) access by the public shall
be restricted to weekends and holidays on which horse racing events are scheduled at Gulfstream
Park, (ii) access on all other days shall be restricted to construction vehicles, provided that such
access shall be permitted only until such time as construction of the renovation and expansion of
the improvements now or hereafter located on the Gulfstream Park Tract is completed, and (iii)
at no time shall vehicular access from N.E. 213th Street to Seller's Hallandale Beach DRI Land
be permitted for any purpose (other than as may be required by the govermnent for emergency
access) .
1.33 Seller's Attornev. Akerman Senterfitt, Attention: Janice Russell, Esq. Seller's
Attorney's mailing address is One SE Third Avenue, 28th floor. Miami, Florida 33131,
Telephone: (305) 982-5611, Telecopier: (305) 374-5095.
1.34 Seller Caused Monetarv Lien. Any materialman's or mechanic's lien, mortgage or
other document recorded in the public records against the Property evidencing a monetary
obligation created by or through Seller.
1.35 Seller's Records. All books, records and documents maintained by Seller or
compiled by or at the request of Seller and in the possession or control of Seller specifically
relating to the ownership, use, development, operation, management, occupancy or maintenance
of the Property.
1.36 Six (6) Acre Park Site. The approximately six (6) gross acre +/ - parcel of
unimproved land more particularly described in Exhibit "Coo attached hereto and made a part
hereof to be sold and conveyed to the Purchaser pursuant to this Agreement.
1.37
deli vered to
Permits.
Submission Documents. The diligence items related to the Property previously
Purchaser pursuant to Section 9 hereof, which include Seller's Records and the
1.38 Survey. The survey of the Property to be delivered by Seller in accordance with
Section 5.2 below and any update to such survey (or new survey) which Purchaser may elect to
obtain, at Purchaser's expense, 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 Improvements,
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.
1.39 Title Commitment. The commitment for title insurance to be obtained by
Purchaser, at Purchaser's expense, pursuant to Section 5 below.
1.40 Title Companv. First American Title 1nsurance Company.
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SECTION 2: PURCHASE AND SALE AND DEDICATION
2.1 Purchase and Sale. Purchaser shall purchase the Six (6) Acre Park Site from
Seller, and Seller shall sell, convey, transfer and assign the Six (6) Acre Park Site to Purchaser,
subject to and in accordance with the terms and conditions of this Agreement.
2.2 Dedication. Seller shall dedicate and convey to Purchaser for public park
purposes, and Purchaser agrees to accept, the Additional Park Donation Land, subject to and in
accordance with the terms and conditions of this Agreement.
23 As-Is. Except as otherwise expressly set forth in this Agreement, the Property is
being conveyed to Purchaser "as-is" and "where-is" without any representations or warranties of
any kind whatsoever including, without limitation, the environmental status and condition of the
Property. Purchaser has and will rely solely on Purchaser's own independent investigations and
inspections, and Purchaser has not relied and will not rely on any representation of Seller other
than as expressly set forth in this Agreement. Purchaser further acknowledges and agrees that,
except for the specific representations made by Seller in this Agreement, Seller has made no
representations, is not willing to make any representations, nor held out any inducements to
Purchaser other than those (if any) exclusively set forth in this Agreement; and Seller is not and
shall not be liable or bound in any manner by any express or implied warranties, guaranties,
statements, representations or information pertaining to the Property, except as may be
specifically set forth in this Agreement or in any document delivered by Seller to Purchaser or
the Title Company at Closing pursuant to Section 13 hereof. Purchaser further agrees to accept
the Property with any and all existing adverse environmental conditions, including, without
limitation, the existing adverse environmental conditions and Hazardous Substances present on
the Property as disclosed in the Environmental Report. The provisions of this Section 2.3 shall
expressly survive the Closing and the delivery of the deed or deeds of conveyance.
SECTION 3: EARNEST MONEY
Within three Business Days after the Effective Date, Purchaser shall deposit in escrow
with the Escrow Agent Two Hundred Ten Thousand and NolIOO Dollars ($210,000.00) 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. Escrow Agent shall invest the Earnest Money in a
United States federal government insured interest-bearing account of a financial institution
located in Miami-Dade, Broward or Palm Beach County, Florida. 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 earned interest with respect to
the Earnest Money, such interest shall accrue for the benefit of Purchaser and shall be reported
to the Internal Revenue Service using Purchaser's Federal tax identification number which is 65-
0662615.
SECTION 4: PURCHASE PRICE; PARK IMP ACT FEE CREDITS
4.1
waived by
Purchase Price. Unless the condition precedent in Section 11.4.3 is deemed
Seller due to Seller's failure to timely flIe an application for its CUA prior to the
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Required Applications Filing Date, the purchase price for the Six (6) Acre Park Site shall be Two
Million One Hundred Thousand and No/l 00 Dollars ($2,100,000.00) (herein referred to as the
"Original Purchase Price"). If the Seller fails to file an application for its CUA on or prior to the
Required Application Filing Date such that the condition precedent in Section 11.4.3 is deemed
waived by Seller, then the purchase price for the Six (6) Acre Park Site sha1l be Four Million
Five Hundred Thousand and No/lOO's Dollars ($4,500,000.00) (the "Adjusted Purchase Price")
Following the Required Applications Filing Date, the Original Purchase Price or the Adjusted
Purchase Price, as applicable, shall be referred to herein as 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 to the Se1ler by cashier's check or in immediately
available funds, by wire transfer, at Closing. Seller and Purchaser acknowledge and agree that
the Original Purchase Price or the Adjusted Purchase Price mayor may not reflect the current
fair market value of the Property and neither shall be admissible as evidence of value or for any
other purpose which may prejudice either party in the event of any future condemnation or other
adversarial proceeding relating to the Property.
4.2 Park Site/Impact Fees. As consideration for the dedication and conveyance by
Seller to the City of the Additional Park Donation Land at the Closing, the City confirms and
agrees as follows:
4.2.1 The City impact fees imposed pursuant to Section 8.04 of the City's
Charter are the sole and exclusive Park and Recreation impact fees due for the development of
the MO District Property in accordance with the CUA (as defined in Section 11.4.3), and the
estimated Parks and Recreation impact fee for the MO District Property, assuming full buildout
of the proposed residential development program of 480 dwelling units is estimated to be Three
Hundred Thirty Four Thousand Seven Hundred Sixty and 04/1 00 ($334,760.04) Dollars
Following the Closing and the dedication and conveyance of the Additional Park Donation Land,
the issuance of building permits will be in conformity with its Park and Recreation impact fee,
based on credits granted for the Additional Park Donation Land dedication and no further
payment shall be required to address Park and Recreation impact fee obligations for the issuance
of a building permit within the MO District Property.
4.2.2 Following the Closing, the City shall not seek to impose or collect any
other such Park and Recreation impact fees resulting from any development within the MO
District Property or any other similar park-related fee imposed by the City seeking to pass on to
the Seller a proportionate share of impact of the residential development contemplated in the
CUA on the City's parks.
SECTION 5: TITLE/SURVEY
Title to the Property shall be good and marketable and insurable fee simple title subject to
the Permitted Exceptions at no more than the Title Company's ordinary or promulgated rates for
the Owner's Title Policy.
5.1 Examination of Title. Prior to the Effective Date, Seller has delivered to
Purchaser's attorney a copy of Seller's existing title insurance policy covering the Property (First
American Title Insurance Company Policy No. FA-35-272947, issued October 26, 1999 at 8:00
{M2363702;l2}
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a.m., effective September ], ]999 at 3:00 p.m.) and copies of the exceptions with respect to the
Property as referenced therein. Purchaser Il1ay obtain, at Purchaser's expense, an ALT A
marketability 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 and the Owner's Title Policy shall be
paid by Purchaser.
5.2 Survev. The Seller shall deliver the Survey to Purchaser within thirty (30) days
from the Effective Date. At Purchaser's option, Purchaser may obtain, at its expense, an update
of the Surveyor a new survey of the Property.
5.3 Permitted Exceptions. The sale of the Property shall be subject to the following:
5.3.] 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;
5.3.2 Any items shown on the Title Commitment and approved or deemed
approved by Purchaser in accordance with Section 5.4 below;
5.3.3 All laws, ordinances, and governmental regulations, including, but not
limited to, all applicable building, zoning, land use and environmental ordinances and
regulations;
5.3.4 All restnctlOns, reservations, easements, covenants, agreements,
limitations and other matters appearing ofrecord (provided that the foregoing exception shall not
be deemed to limit the rights and obligations of the Purchaser and Seller set forth in Sections 5.4
through 5.7, inclusive, below.
5.3.5 All matters which would be disclosed by an accurate survey of the
Property provided that the foregoing exception shall not be deemed to limit the rights and
obligations of the Purchaser and Seller set forth in Sections 5.4 and 5.7 below;
5.3.6 All matters deemed hereunder to be Permitted Exceptions; and
5.3.7 All matters created by, through or under Purchaser.
The above items described in this Section 5.3 are herein collectively referred to as the
"Permitted Exceptions."
5.4 Obiections to Title/Survey. Purchaser shall be entitled to object, in its reasonable
discretion, to any exceptions to title disclosed in the Title Commitment and/or matters shown on
the Survey which render title unmarketable by delivering written notice thereof to Seller no later
than the date which is thirty (30) days after the Effective Date, and if Purchaser shall fail to so
timely object, any matters shown on the Survey and/or Title Commitment shall be deemed
approved by Purchaser and considered Permitted Exceptions. In the event that Purchaser shall so
object to the Title Commitment and/or the Survey, Seller shall have the right (in Seller's sole
discretion) within fifteen (15) days after receipt of such notice to cure Purchaser's objections to
Purchaser's reasonable satisfaction, it being understood that Seller shall be under no obligation to
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cure Purchaser's objections. In the event Seller is unwilling or unable to so cure such objections
within such fifteen (15) day period, Purchaser may (i) waive such objections or (ii) terminate this
Agreement by written notice to Seller given no later than the last day of such fjfteen (15) day
period, 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. If the Purchaser does not timely provide
such notice of cancellation, Purchaser shall be deemed to have waived such objections (and to
have approved and accepted same) and such objections shall be deemed Permitted Exceptions.
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 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.
5.6 Non-Seller Caused Monetary Liens. If the Title Commitment reveals the
existence of any non-consensual monetary obligations of Seller such as judgments ("Non-Seller
Caused Monetary Liens"), then, subject to the Cure Limit (as defined herein), Seller shall pay the
amount due in satisfaction of each Non-Seller Caused Monetary Lien as to the Property only (or
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 Non-Seller Caused Monetary Liens, either
individually or in 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 Non-Seller
Caused Monetary Liens. 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.
57 Purchaser's Right to Terminate. If any title matter which renders title
unmarketable 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 is (a) a Seller Caused Monetary Lien (b) a Non-Seller
Caused Monetary Lien the monetary amount any of which is not (in the aggregate together with
the monetary amount of any other Non-Seller Caused Monetary Liens) in excess of the Cure
Limit or (c) was created or consented to by Seller, then Seller shall cure the New Title Matter, at
Seller's expense, on or before Closing. If the New Title Matter is (x) a Non-Seller Caused
Monetary Lien the monetary amount any of which is (in the aggregate together with the
monetary amount of any other Non-Seller Caused Monetary Liens) in excess of the Cure Limit
or (y) was not created or consented to by Seller, then Seller may (at its sole option, but shall not
be obligated to) cure same until the earlier of (i) five (5) Business Days of Seller's receipt of
written notice thereof or (ii) the Closing Date, 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 and
accept title to the Property subject to such New Title Matters without claim against the Seller
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therefor and without reduction to the Purchase Price in which case all such New Title Malters
shall be deemed Penllitted Exceptions. In the e"\'ent of ternlination, 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.] Title. Seller is the fee simple owner of the Property and Improvements free and
clear of all encumbrances except for any encumbrances disclosed in the Submission Documents
and the Permitted Exceptions (without modification arising with regard to Purchaser's rejection
or disapproval of any of the items pursuant to this Agreement).
6.2 Organization, Power and Authoritv. Seller is a corporation duly formed, validly
existing and in good standing under the laws of the State of Florida. Seller is, to the extent
required by law, duly qualified to do business in the State in which the Property is located and
has all necessary corporate 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 material contract,
agreement or other instrument by which Seller or the Property is bound or to which Seller is a
party.
6.3 No Bankruptcy. Seller is not a party to any voluntary or involuntary proceedings
under any applicable laws relating to the insolvency, bankruptcy, moratorium or other laws
affecting creditors rights to the extent that such laws may be applicable to Seller or the Property.
6.4 No Litigation. To its actual knowledge, Seller is not a party to or affected by any
litigation, administrative action, investigation or other governmental or quasi-governmental
proceeding which would have or could reasonably be expected to have a material adverse effect
upon the Property or upon the ability of Seller to fulfill its obligations under this Agreement. To
Seller's actual knowledge, there are no lawsuits, administrative actions, governmental
investigations or similar proceedings pending or to the Seller's actual knowledge threatened
against or adversely affecting the Property or any pOJ1ion thereof or any interest therein.
6.5 No Violations. To Seller's actual knowledge, there are no presently outstanding
and uncured notices of any violations of any Legal Requirements or Environmental
Requirements, and to Seller's actual knowledge, no Person capable of issuing such notice of
violation has threatened to issue a notice of violations. Notwithstanding the foregoing or
anything to the contrary contained herein, if a violation of any Environmental Requirements is
threatened or issued after the Effective Date and prior to the Closing which arises out of or is
related to the conditions and other matters disclosed in the Environmental Report, Seller shall not
be deemed in breach of the representations set forth above in this Section 6.5 or elsewhere in this
Agreement nor shall Seller have any obligation under this Agreement to cure or undertake any
remediation or investigation with respect to any such violation.
{M2363702)2}
10
6.6 Assessments. Seller has no actual knowledge and Seller has not received written
notice of any assessnlents by a public body, whether municipal, county or state imposed,
contemplated or confirmed and ratified against any of the Property for public or private
improvements which are now or hereafter payable.
6.7 No Rights to Purchase. To Seller's actual knowledge, except for this Agreement,
Seller has not entered into any agreement, commitment, option, right of first refusal or any other
agreement, whether oral or written, with respect to the purchase, assignment or transfer of all or
any portion of the Property which is currently in effect
6.8 Parties in Possession. Other than Seller, there are no parties in possession of any
portion of the Property as lessees, tenants at sufferance or trespassers, to Seller's actual
knowledge.
6.9 Umecorded Agreements Restricting Use of the Propertv. To Seller's actual
knowledge, Seller has not executed or caused to be executed any document with or for the
benefit of any Governmental Authority restricting the development, use or occupancy of the
Property that is not recorded in the land records of the county in which the Property is located or
has not been specifically disclosed in writing to Purchaser.
6.10 Actual Knowledge. As used in this Agreement or in any Exhibit attached hereto,
any reference to "actual knowledge" of Seller shall mean the present, actual knowledge of Scott
Savin, President and General Manager of Seller, provided however, that he shall not have done
any investigation with respect to such matters, nor shall he be under any duty of inquiry.
6.11 Effect of Purchaser's Knowledge. Purchaser shall be deemed to have waived in
full any breach of any of Seller's representations and warranties and covenants and agreements of
which Purchaser has actual knowledge at Closing.
6.12 Survival. The foregoing representations, warranties, covenants and agreements of
Seller in this Section 6 shall survive the Closing or termination of this Agreement for a period of
one (1) year thereafter, except for Section 6.1 which shall not survive the Closing.
SECTION 7: PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to Seller and covenants and agrees with Seller that the
following facts and conditions exist and are true as of the date hereof and shall exist and be true
(and certified as such) as ofthe date of the Closing.
7.1 Purchaser is a validly formed municipal corporation in good standing organized
and existing under the laws of the State of Florida 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, (ii) has been approved by the
Purchaser in accordance with the laws of the State of Florida, the Charter of the Purchaser and
the Purchaser's Code of Ordinances, and (iii) does not conflict with or constitute a breach of, or
constitute a default under, any contract, agreement or other instrument by which Purchaser or the
Property is bound or to which Purchaser is a party
{M2363702.12}
11
7.2 Purchaser presently has and will have at Closing all funds or financing necessary
to pay and deliver to Seller the cash Purchase Price.
SECTION 8: SELLER'S COVENANTS
From and after the date hereof, through and including the Closing Date, Seller agrees as
follows (each of which covenants is a condition to Purchaser's obligations to close under this
Agreement and must be satisfied by Seller or waived by Purchaser in writing prior to Closing):
8.1 Inspection of Property. Subject to Section 9.2, Seller will allow Purchaser and its
agents and contractors to enter upon the Property for any purpose in connection with Purchaser's
proposed purchase, use and operation of the Property.
8.2 Management Prior to Closing Between the date of this Agreement and the
Closing Date, Seller shall maintain the Propeliy in substantially the same physical condition as
on the date of Seller's execution of this Agreement (other than as a result of a force maj eure).
8.3 Notices. Seller shall, promptly upon Seller's obtaining actual knowledge thereof,
provide Purchaser with a written notice of any event which has a material adverse effect on the
physical condition of the Property.
8.4 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 or Environmental 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 or any other correspondence or notice received by
Seller which has or has the potential to have a material adverse effect on the Property. Promptly
after Purchaser obtains actual knowledge or upon receipt of written notice thereof, Purchaser has
provided or shall provide Seller with written notice of any service of process which affects
Purchaser's ability to perform its obligations under this Agreement.
8.5 Notification of Change of Circumstances. Each of Purchaser and Seller shall
provide the other with written notice of any transaction or occurrence prior to Closing which
could make any of the warranties, representations, covenants and agreements of such party under
this Agreement not true with the same force and effect, as if made on or as of the date hereof.
8.6 Seller's Cooperation. If requested by Purchaser, Seller will promptly execute all
petitions, applications, easements, plats, site plans, waivers of plats, and other documents which
Purchaser may reasonably request and otherwise reasonably cooperate with Purchaser in
connection with Purchaser obtaining or granting any permit, plat, waiver of plat, site plan
approval, easement, right-of-way dedication, rezoning, right-of-way deed, variance or other
administrative authorization (each an "Authorization") required for Purchaser's proposed
development of the Property and permitted prior to Closing, provided however, that such
cooperation shall be at no cost (other than internal review costs) or liability to Seller and none of
the foregoing Authorizations shall be effective prior to Closing.
{M2363702;12)
12
8.7 Survival. None of the covenants contained in this Section 8 shall survive Closing
and the delivery of the Deed, except that Seller's obligations under Section 8.6 shall survive the
Closing.
SECTION 9: PURCHASER'S DUE DILIGENCE AND INSPECTION OF
PROPERTY
9.1 Documents to be Delivered by Seller. With the exception of the original Survey,
Seller has previously provided to Purchaser copies of all documents, records, reports, studies,
data and information, if any, relating solely to the Property in Seller's possession, including,
without limitation, any existing tests, surveys, title policies, licenses, permits, engineering and/or
enviromnental analyses, soil test borings, Seller's Records, Permits and tax bills, if any, (the
"Submission Documents"). The Seller shall continue up until the Closing to provide any
material Submission Document received by Seller after the Effective Date.
9.2 Inspection of Property. Purchaser or its appointed agents or independent
contractors shall have, at all reasonable times prior to the Closing, 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; provided, however, in the case of any intrusive inspection or test (e.g., core
sampling), Purchaser must obtain Seller's prior written consent (which consent shall not be
unreasonably withheld, delayed or conditioned) and in the case of any soil borings, Purchaser
agrees to provide for split sampling by its contractors. In exercising the privileges granted
pursuant to this subsection 9.2, Purchaser shall substantially restore the Property to the condition
existing prior to such activities on the Property. In consideration of Purchaser's right to inspect
the Property as described in this subsection 9.2, subject to the provisions and monetary
limitations of Section 768.28, Florida Statutes, Purchaser 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 rights under this
subsection 9.2 (including, without limitation, any rights or claims of materialmen or mechanics
to liens on the Property, but excluding any matter to the extent arising out of the negligence or
misconduct of Seller). This agreement to indemnify Seller shall survive the Closing and any
termination of this Agreement. In conducting any inspections, investigations or tests of the
Property and/or Submission Documents, 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) maintain comprehensive
general liability (occurrence) insurance in an amount of not less than TWO MILLION AND
00/1 00 DOLLARS ($2,000,000.00) covering any accident arising in connection with the
presence of Purchaser, its agents and representatives on or relating to the Property, and listing
Seller as an additional insured under such policy and shall deliver a certificate of insurance
verifying such coverage to Seller prior to entry upon tile Property; (iv) not injure or otherwise
cause bodily harm to Seller, or its respective agents, guests, invitees, contractors and employees
or their guests or invitees; (v) comply with all applicable laws; (vi) promptly pay when due the
costs of all tests, investigations, and examinations done with regard to the Property; (vii) not
permit any liens to attach to the Property by reason of the exercise of its rights hereunder; (viii)
repair any damage to the Property resulting directly or indirectly from any such inspection or
{M2363702;}2}
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tests; and (ix) not reveal or disclose prior to Closing any information obtained concerning the
Property and the Subnlission Documents except as may be otherwise required by 13\\' and as set
forth in Section 10.1 below.
9.3 Intentionallv Omitted.
SECTION 10: ENVIRONMENTAL REMEDIATION
10.1 Purchaser's Remediation Obligation. Following the Closing, Purchaser agrees to
be solely responsible for, and cause to be performed, any environmental clean up and
remediation arising under Environmental Requirements with respect to Hazardous Materials
located in, on, or under the Property. The parties acknowledge that Purchaser has obtained an
Environmental Report assessing the presence of any Hazardous Materials on the Property. Said
Environmental Report has disclosed Hazardous Materials on the Property. Purchaser is hereby
authorized to disclose said infonnation to the applicable Governmental Authorities in order to
evaluate, formulate, and agree upon the necessary environmental clean-up and remediation
obligations associated with such Hazardous Materials. Purchaser's disclosure of such information
to the applicable Governmental Authorities shall in no way alter, modify, or diminish its right to
terminate this Agreement as set forth in this Agreement. The foregoing obligation does not
include any liability and/or obligations associated with Hazardous Materials that may have
migrated off the Property to adjacent properties. The liability and obligations associated with
such off-site contamination shall be governed by applicable Environmental Requirements.
Purchaser hereby agrees to release Seller from any and all liability relating in any way to the
environmental clean up and remediation of or on or under the Property, arising under
Environmental Requirements with respect to Hazardous Materials located in, on or under the
Property and/or relating to the environmental condition or status of the Property; provided,
however, that Purchaser does not release Seller from any liability relating in any way to any
release, discharge, spill or other event which first occurs after the Closing Date on Seller's
Adjacent Property which causes environmental contamination of or on or under the Property.
10.2 Survival. The provisions of this Section 10 shall expressly survive the Closing
and deli very of the Deed.
SECTION 11: CLOSING
The Closing Date shall occur on the date which is the first to occur of (i) thirty (30) days
following satisfaction of the conditions precedent set forth in Section 11.4.3 below which have
not been deemed waived by Seller as of the Required Applications Filing Date or (ii) one
hundred and eighty (180) days from the Effective Date; provided, however, that the Closing Date
may be extended by either party by delivering written notice thereof to the other at least five (5)
Business Days prior to aforementioned Closing Date if the Seller's conditions precedent set forth
in Section 11.4.3 shall not be satisfied as of the Closing Date so long as Seller timely submitted
the Required Applications (as defined below) as required by Section 11.4.3 and is with
reasonable diligence and in good faith pursuing satisfaction of such conditions precedent. Said
extension shall only be until such time as the conditions precedent are satisfied and in no event
more than thirty (30) days. The Closing shall be held at the offices of Purchaser's Attorney, at a
time mutually acceptable to both parties. If no such selection is timely made, the Closing shall
{M2363702,12)
14
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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.
11.1 Delivery and 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, subject only to the Permitted Exceptions at the
time of Closing. Risk of loss shall remain with Seller until Closing.
] ].2 Closing Costs.
I] .2. I Seller's Costs. Seller shall pay (i) the fees and expenses of Seller's
attorneys, (ii) the documentary stamps and surtaxes due on the Deed(s), and (iii) the cost of
recording any corrective instruments, if any.
I 1.2.2 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, (iii) the premium for the Owner's Title Policy, (iv) the cost of recording the Deed,
(v) the cost of the Survey, and (vi) the fees and expenses of Purchaser's attorneys.
I] .2.3 Other Costs. Any other costs not specifically provided for in subsection
I] .2. I, subsection ]] .2.2 or otherwise pursuant to the terms of this Agreement 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.
Any escrow fees, document preparation charges of the Title Company and other escrow related
charges of the Escrow Agent in its capacity as escrow agent only shall be paid by Purchaser.
I I .2.4 Survival. The provisions of this subsection 1 1.2 shall survive the
Closing and the delivery of the Deed for a period of one (l) year thereafter.
11.3 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):
11.3.1 Seller shall have fully performed in all material respects each
unde11aking 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 ] 3
below;
11.3.2 Each representation and warranty made m this Agreement by Seller
shall be complete, true and accurate in all material respects;
1] .3.3 Except as cured by Seller or otherwise approved or waived in writing by
Purchaser, no event shall have occurred which may have a material adverse effect on the
physical condition of the Prope11y
{M2363702;12}
15
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If any of the foregoing conditions are not satisfied at or before the Closing Date, then
Purchaser, as its sole remedy may either (1) tenninate 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. ]f 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. ]f the failure of any of the foregoing would constitute a default hereunder, Purchaser
shall have the rights and remedies provided in Section 18.
1].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 precedent on
or before the Closing Date (any of which may be waived only in writing by Seller in its
discretion) :
] ] .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;
11.4.2 Each representation and warranty made in this Agreement by Purchaser
shall be complete, true and accurate in all material respects;
11.4.3 Seller shall have obtained from Purchaser "Final Approval" (which for
purposes of this Agreement shall mean that all appeal periods have expired without the filing of
an objection, or if an objection is filed within the appeal period, such objection is resolved in
Seller's favor) of (i) a conditional use application (the "CUA") for that portion of the Adjacent
Property in the MO (Medical Office) zoning district for a residential project which does not
exceed twenty five (25) stories in height nor contain more than 480 dwelling units in the
aggregate nor be valid for less than five (5) years and with only such conditions that are
acceptable to Seller (in its sole discretion) and (ii) a development agreement for the Commercial
Property substantially in the form of the Development Agreement attached hereto as Exhibit "E"
(subject to review and approval pursuant to the City's public hearing process) or with only such
modifications thereto as may be acceptable to Seller in its sole discretion (collectively the
"Required Approvals"). Within ninety (90) days after the Effective Date (the "Required
Applications Filing Date"), Seller agrees, at no cost or expense to Purchaser (except its review
costs), to submit to the Purchaser complete applications for the Required Approvals for the
Adjacent Property as set forth above (collectively, the "Required Applications"), and thereafter
diligently, expeditiously, and in good faith prosecute the Required Applications. Seller shall
have the right to elect, by written notice given to Purchaser prior to ninety (90) days after the
Effective Date, to extend the Required Applications Filing Date by an additional thirty (30) days,
provided such notice is accompanied by evidence reasonably demonstrating that Seller has
completed the pre-filing tasks by the dates set forth in the schedule attached hereto as Schedule
11.4.3. Purchaser agrees to process the Required Applications in accordance with applicable
laws as set forth in its Code. Seller and Purchaser acknowledge and agree that (except in the
event of Seller's failure to timely file the Required Application for its CUA as set forth in
subsection 11.4.3.(c) below), the Required Approvals are conditions precedent to the Closing of
the sale and purchase of the Property. Seller and Purchaser further agrees as follows:
{M2363702,12}
16
(a) Seller Timely Files the Required Applications: Required
ADorovals Obtamed In the event that the Seller timely files the Required Applications
within the Required Applications Filing Date (including fIling within the extension of the
Required Applications Filing Date permitted under this Section), and the Seller obtains
the Required Approvals from the City, then the parties shall proceed to Closing of the
Property in accordance with the Closing Date set forth in Section 11 of this Agreement,
and the Purchase Price to be paid by Purchaser pursuant to this Agreement shall be the
Original Purchase Price.
(b) Seller Timelv Files the Required Applications: Required
Approvals Denied. In the event that the Seller timely files the Required Applications
within the Required Applications Filing Date (including within the extension of the
Required Applications Filing Date permitted under this Section), and the City denies or
fails to issue the Required Approvals, the Seller shall have the right to terminate this
Agreement and not proceed to Closing by providing written notice to Purchaser within
ten (10) days of the denial, wherein the Agreement shall be deemed null and void and the
parties shall be released and discharged from all obligations and liabilities pursuant to
this Agreement.
(c) Seller Fails to Timely File the Required Applications: Seller
Waives Condition Precedent. In the event that Seller fails to timely file the Required
Application for its CUA on or before the Required Applications Filing Date (including
within ihe extension of the Required Applications Filing Date permitted under this
Section), then, notwithstanding anything to the contrary contained herein, the condition
precedent set forth in this Section 1] 4.3(i) above for Fina] Approval of Seller's CUA
shall be deemed waived by Seller. In this event, Seller shall have no right to terminate
this Agreement for failure to obtain Final Approval of its CUA in accordance with this
Section 11.4.3, the parties shall proceed to Closing of the Property in accordance with the
Closing Date set forth in Section] 1 of this Agreement, and the Purchase Price to be paid
by Purchaser pursuant to this Agreement shall be the Adjusted Purchase Price. Nothing
herein shall preclude or restrict the Seller from filing the Required Application for its
CUA after the required filing date or Closing. If such CUA application is filed by the
Seller and approved by the City Commission after Closing, the Purchaser shall receive a
refund or rebate from the Adjusted Purchase Price in the amount of $2,400,000.00 from
Seller, within 30 days of the CUA approval. This provision shall expressly survive the
Closing or termination of this Agreement.
(d) Construction License Agreement Prior to Closing. Purchaser
shall have the right to commence construction activities and improvements upon the
Property, in the nature of permitting, clearing, filling and demucking of the Property (the
"Pre-Closing Improvements"), prior to the Closing, and commencing upon the Effective
Date of this Agreement, pursuant to the Construction License Agreement substantially in
the fonn attached hereto as Exhibit "0." Seller and Purchaser agree to enter into the
Construction License Agreement within five (5) business days after written notice is
given by Purchaser to Seller of its election to commence the Pre-Closing Improvements
upon the Property prior to the Closing. Seller shall cooperate with Purchaser in the
attainment of all required permits and approvals for the Pre-Closing Improvements,
(M2363702,J2)
17
including the execution or joinder in any permit applications or instruments. In the event
that Seller timely files the Required Applications and the City denies or fails to issue the
Required Approvals as set forth in subsection 11.4.3.(b) above, and Seller elects to
terminate this Agreement and not proceed to Closing, Seller shall reimburse Purchaser
for the cost of the Pre-Closing Improvements (excluding park design fees) within thirty
(30) days of Purchaser's written request and proof of costs incurred.
(e) Within fif1een (15) Business Days following the approval by the
City Commission of Aventura, not Final Approval, of the Required Applications and
adoption of a Resolution consistent therewith, Seller shall provide Purchaser with \vritten
notice identifying which, if any, of the conditions of the Required Approvals are
unacceptable to Seller ("Seller's Objection Notice"). If Seller fails to provide Seller's
Objection Notice to Purchaser within such fifteen (15) Business Days period, then
Purchaser shall provide notice to Seller of such failure to provide Seller's Objection
Notice ("Purchaser's Reminder Notice). Sellers continued failure to provide Seller's
Objection Notice to Purchaser within seven (7) Business Days after Seller's receipt of
Purchaser's Reminder Notice shall be deemed Seller's acceptance of all conditions of the
Required Approvals and, upon Final Approval, the condition precedent set forth in this
Section 11.4.3 shall be deemed satisfied. Seller and Purchaser further acknowledge and
agree that (i) this Agreement and Purchaser's obligation to process the Required
Applications in accordance with applicable law are not contract zoning, (ii) Purchaser
makes no representations and/or warranties that the Required Applications will be
approved, and (iii) the terms and conditions of this Agreement shall in no way be deemed
or construed as Purchaser's agreement to support the Required Applications.
(0 Notwithstanding anyihing in Section 11.4.3 to the contrary, in
any and all events, except for the City's denial or failure to issue the Required Approvals
as set forth in Section 11.4.3 (b) hereinabove, the parties shall be required to Close on the
Property on the Closing Date and consummate this Agreement in accordance with the
remaining provisions hereof. Upon a termination of this Agreement by Seller as set forth
in Section 11.4.3 (b) for the City's denial or failure to issue the Required Approvals, the
Escrow Agent shall promptly refund the Deposit to the Purchaser.
SECTION 12: PRORATIONS AND CREDITS AT CLOSING
All prorations provided to be made "as of the Closing Date" shall each be made as of
II :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:
12.1 Propertv Taxes and Assessments.
12.11 Taxes. Seller acknowledges and agrees that the Propel1y is being
purchased by an exempt governmental entity and that the Seller must comply with
{M2363702.12}
18
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Section 196.295, Florida Statutes, regarding real estate taxes. 1n connection with the foregoing,
prior to Closing, Seller, at Seller's cost and expense, shall cause the Miami-Dade County
Property Appraiser and Tax Collector, as applicable, to identify in writing the amount of prorated
real estate taxes to be paid to the Miami-Dade County Tax Collector in order to comply with
Section 196.295, Florida Statutes. If for any reason the foregoing is not accomplished by the
Closing Date, a portion of Seller's proceeds of this transaction as deemed necessary by the Title
Company shall be placed in escrow pending receipt of such information from the Miami-Dade
County Tax Collector. Upon Closing, Seller hereby authorizes disbursement to the Miami-Dade
County Tax Collector of the amount necessary to comply with Section 196.295, Florida Statutes.
Seller shall remain responsible for, and promptly pay to the Miami-Dade County Tax Collector,
any underpayments. Seller shall retain all right, title and interest in any tax refunds for years
prior to the Closing (and Purchaser agrees to promptly pay same to Seller upon receipt thereof).
12.1.2 Special Assessments. Certified, confirmed and ratified special
assessment liens as of Date of Closing (and not as of the date of this Agreement), if any, 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.
Notwithstanding the foregoing, to the extent any of the foregoing certified, confirmed or ratified
liens are payable in installments, Purchaser shall take title subject to such lien(s) and shall
assume the balance of such installment payments. In such event, the installment payments for
the year of Closing shall be prorated as of 12:01 A.M. of the Closing Date. Seller shall retain all
right, title and interest in any refunds for any such special assessments for periods prior to
Closing (and Purchaser agrees to promptly pay same to Seller upon receipt thereof).
12.2 Other Matters. Seller and Purchaser shall make such other adjustments and
apportionments as are expressly set forth in this Agreement.
12.3 Survival. The provisions of this Section 12 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 12, 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. The parties
hereto agree that they shall seek to determine the amounts of all prorations and adjustments
required hereunder on or before the Closing Date, if possible, and to the extent not then
obtainable within one (1) year of Closing.
SECTION 13: CONVEYANCES AND DELIVERIES AT CLOSING
13.1 Special Warranty Deed(s). At Closing, Seller shall convey the Property to
Purchaser by a duly executed and recordable special warranty deed(s) in substantially the form
attached hereto as Exhibit "J" (herein referred to as "Deed"), subject only to the Pelmitted
Exceptions and the restrictions and conditions set forth therein.
{M2J63702,J2)
19
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13.2 Bill of Sale. At Closing, Seller shall also convey the Improvements to Purchaser
by a duly executed Bill of Sale in substantially the form attached hereto as Exhibit "K".
I 3.3 Seller's Records. At or simultaneously with the Closing, Seller shall deliver to
Purchaser the originals (or if originals are unavailable, certified copies) of the Seller's Records,
and the Permits related solely to the Property. Seller may keep copies of such materials at
Seller's sole cost and expense.
13.4 Section 1445 Certificate. At Closing, Seller shall execute and deliver to
Purchaser and the Title Company a certificate substantially in the form as Exhibit "L" attached
hereto stating that Seller is not a "foreign person" as defined in Section 1445 of the Internal
Revenue Code and the regulations thereunder.
13.5 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 reasonably required by the Title Company
to complete IRS Form 1099 with respect to this transaction.
13.6 Affidavit of Title. At Closing, Seller shall execute and deliver to Purchaser and to
the Title Company an affidavit in the form attached hereto as Exhibit "M".
13.7 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.
13.8 Evidence of Authoritv. At Closing, each of Purchaser and Seller shall deliver to
the other the Evidence of Authority dated not more that five days before the Closing Date.
13.9 General Assignment. At Closing, Seller will deliver to Purchaser a general
assignment, to the extent assignable, of the Seller's Records, Permits, the Intangible Property and
all other property and rights that relate solely to the Property and are included in the transaction
contemplated by this Agreement, which assignment shall be substantially in the form attached
hereto as Exhibit HE".
13.10 Development Agreement. At Closing, Seller and Purchaser will enter into the
Development Agreement for the Commercial Property as provided in Section 11.4.3 above.
13.11 Transfer Tax Returns. At Closing, Seller will execute and deliver Florida
Department of Revenue Form DR-219.
13 .12 Physical Possession. At Closing, Seller shall deliver to Purchaser possession of
the Property.
13.13 Easement Agreement. At Closing, Purchaser shall execute and deliver to Seller
the Easement Agreement.
{M2363702;12} 20
~--T.._..-'" -T
13.14 Restricted Access Covenant. At Closing, Seller shall execute and cause to be
recorded in the public records of Miami-Dade County, Florida, the Restricted Access Covcnant
in accordance with Section 1.32.
13.15 Park and Recreation Impact Fec Credit Letter. At Closing, Purchaser will execute
and deliver a letter which shall be validly issued and binding upon the City for the benefit of
Seller and its successors in title to the MO District Property, memorializing the terms set forth in
Section 4.2.1 and Section 4.2.2 hereof with respect to the park impact fee credits applicable to
the MO District Property.
SECTION 14: 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 w'Titing and sent by (a) hand delivery, (b) electronic facsimile or other transfer device
with telephone or other confirmation of receipt, provided that a hard copy of such notice is
mailed by US first class mail, postage prepaid, on or before the next Business Day following
such telecopy delivery or (c) a nationally recognized overnight delivery service (such as Federal
Express, UPS Next Day Air, Purolator Courier or Airborne Express), with all delivery charges
paid by the sender and addressed to the Purchaser or Seller, as applicable, as follows, or at such
other address as each may request in writing. Such notices shall be deemed received, (1) if
delivered by hand or overnight delivery service on the date of delivery and (2) if sent by
electronic transfer on the date transmission is confirmed by telephone or return electronic
transfer from the receiving party, provided that a hard copy of such notice is mailed by US first
class mail, postage prepaid, on or before the next Business Day following such telecopy delivery.
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. Said addresses for notices are to be as follows:
IF TO SELLER:
Gulfstream Park Racing Association, Inc.
901 South Federal Highway
Hallandale, Florida 33009
Attention: Scott Savin, President
Telephone No.: (954) 457-6204
Telecopy No.: (954) 457-7827
with copies to:
Akerman Senterfitt
28th f100r
One SE Third Avenue
Miami, Florida 3313 I
Attention: Janice 1. Russell, Esq.
Magna Entertainment Corp.
285 West Huntington Drive
{M2363J02;12}
21
Arcadia, California 91007
Attn: Scott Daruty, Esq.
Telephone No: (626) 574-6322
TelecopyNo.: (626) 821-1559
IF TO PURCHASER:
City of A ventura
19200 West Country Club Drive
A ventura, Florida 33180
Attention: Eric M. Soroka, City Manager
Telephone No.: (305) 466-8910
Telecopy No.: (305) 466-8919
with a copy to:
Weiss Serota Helfman Pastoriza Cole & Boniske, P.A.
2665 South Bayshore Drive
Suite 420
Miami, Florida 33133
Attention: Lillian Arango de la Hoz, Esq. & David M. Wolpin, Esq.
Telephone No: (305) 854-0800
Telecopy No.: (305) 854-2323
SECTION 15: CASUALTY AND CONDEMNATION
15.1 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, other than the Permitted Exceptions.
15.2 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 Prope11y 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 is related to the taking of all or any material 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 thirty (30) 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, or in the event of a non-material
{M2363702;J2)
22
condemnation, 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 Condelnnation Proceeding
affecting the Property; provided, that in doing so Purchaser shall cooperate with Seller in good
faith,
SECTION 16: BROKERS
Each party represents to the other that such party has not incurred any obligation to any
broker, finder or real estate agent with respect to the purchase or sale of the Property. Each of
Seller and Purchaser warrants and represents to the other that such party has employed (expressly
or impliedly) no 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 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; provided, however, Purchaser's indemnity obligations
hereunder are subject to the provisions and monetary limitations of Section 768.28, Florida
Statutes. The representation, warranties, undertakings and indemnities of this Section 16 shall
survive the Closing hereunder and any termination of this Agreement for a period of one (I) year
thereafter.
SECTION 17: INTENTIONALLY RESERVED
SECTION 18: DEFAULT/REMEDIES
18.1 Seller's Default/Purchaser's Remedies. If Seller defaults in the observance or
performance of its covenants and obligations hereunder, Purchaser may, at its option, and as its
sole remedy (1) terminate this Agreement and receive a refund of the Earnest Money or (2) seek
specific performance of this Agreement. Purchaser hereby waives, relinquishes and releases any
and all other rights and remedies, including but not limited to: (I) any right to sue Seller for
damages or (2) any other right or remedy which Purchaser may otherwise have against Seller,
either at law, or equity or otherwise.
18.2 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.
(M2363702;12}
23
Seller hereby waives, relinquishes and releases any and all other rights and remedies, including
but not lin1ited to: (1) any right to sue Purchaser for dmnages or to prove that Seller's actual
damages exceed the amount which is hereby provided Seller as fully liquidated damages or (2)
any other right or remedy which Seller may otherwise have against Purchaser, either at law, or
equity or otherwise.
SECTION 19: POST CLOSING OBLIGATIONS
19.1 Relocation of Overhead FPL Transmission Line Easement. Purchaser agrees to
furnish Seller with a copy of FPL's cost estimate for relocation of the Overhead FPL
Transmission Line Easement promptly following Purchaser's receipt of same. As such costs are
requistioned by FPL, Seller will pay to Purchaser within thirty (30) days of Purchaser's written
request (accompanied by a copy of the most requisition statement received from FPL) the
amount then due and payable to FPL in accordance with its cost estimate plus any such costs
previously paid to FPL by Purchaser and not reimbursed by Seller. Purchaser agrees that any
refunds or credits given by FPL to the Purchaser for amounts previously paid by Seller at
Purchaser's request for the relocation of the Overhead FPL Transmission Line Easement shall be
reimbursed to Seller directly by Purchaser within thirty (30) days from Purchaser's receipt
thereof. Following the Closing, the Purchaser agrees to use commercially reasonable efforts to
cause the existing overhead power lines on the Property to be relocated by Florida Power &
Light Company ("FPL") to south side ofN.E. 213th Street or other location mutually acceptable
to FPL and the Seller which will not umeasonably interfere with use of the Property as a public
park. If FPL determines that additional right of way is required for such relocation, then
Purchaser shall be responsible for acquiring such additional right of way at its sole expense
through purchase or if necessary, through eminent domain proceedings. Nothing contained above
however shall be construed as obligating the Seller to pay the cost of installing part or all of
FPL's electrical equipment and lines underground. In addition, after Seller has paid the full
amount set forth in FPL's cost estimate, Seller shall have no further liability or responsibility for
the cost of relocating the Overhead FPL Transmission Line Easement, except that Seller agrees
both prior to and after the Closing to cooperate in the execution and delivery of any easements
and related instruments required by FPL in connection with such relocation.
19.2 Default. Notwithstanding anything contained in this Agreement to the contrary,
in the event of a default by Seller or Purchaser under this Section 19 that remains uncured for
thirty (30) days following written notice from the non-defaulting party to the defaulting party,
the non-defaulting party may terminate the provisions of this Section 19 upon written notice to
the defaulting party and, in addition to such right of termination, shall be entitled to all rights and
remedies available to the non-defaulting party at law and in equity.
19.3 Survival. The provisions of this Section 19 shall expressly survive the Closing
and delivery of the Deed and the respective obligations of Seller and Purchaser under this
Section 19 shall constitute covenants running with the land and shall bind and benefIt the
successors in title and assigns of Seller and Purchaser with respect to the Adjacent Property (but
not the Commercial Propel1y) and the Property, respectively, until such obligations are satisfied,
extinguished or terminated in accordance herewith; and upon such satisfaction, extinguishment
or termination, the par1ies agree to execute and record any documents reasonably required to
reflect such satisfaction, extinguishment or termination.
{M2363702;12}
24
SECTION 20: ESCROW AGENT
20.1 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.
20.2 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.
20.3 Right to Interolead 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.
20.4 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.
20.5 Escrow Agent as Counsel for Purchaser. It is acknowledged that Escrow Agent is
counsel for Purchaser It is agreed that Escrow Agent shall not be disabled or disqualified from
representing Purchaser, its council members, parents, officers, directors or agents 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, waives any claim or right to assert a conflict arising out of or in connection with the
foregoing.
SECTION 21: GENERAL PROVISIONS
21.1 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.
{M2363702;12}
25
__..._..,..._,._n~.
21.2 Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Florida.
21.3 Further Assurances. Seller and Purchaser each agrees to execute and deliver to
the other such further documents or instruments as may be reasonable and necessary in
furtherance of the performance of the terms, covenants and conditions of this Agreement. This
covenant shall survive the Closing.
21.4 Interpretation. The titles, captions and paragraph headings are inserted for
convenience only and are in no way intended to interpret, define, limit to 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.
21.5 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.
21.6 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.
21.7 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.
21.8 Exhibits. The Exhibits referred in and attached to this Agreement are
incorporated herein in full by this reference.
21.9 Attornevs' 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
{M2363702;12}
26
of any indemnity provisions), the prevailing party shall be entitled to recover reasonable costs,
expenses and attorneys' fees including, but not lin1ited to, court costs and other expenses through
all appellate levels.
21.10 Business Davs. 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.
21.11 Time is of the Essence. Time is of the essence in this Agreement.
21.12 No Personal Liability of Council Members Administrative Officials or
Representatives of Purchaser and Seller. Seller acknowledges that this Agreement is entered into
by a municipal corporation as Purchaser and Seller agrees no individual council member,
administrative official or representative of Purchaser shall have any personal liability under this
Agreement or any document executed in connection with the transactions contemplated by this
Agreement. Purchaser hereby agrees that no shareholder, member, director, officer, employee or
agent of Seller shall have any personal liability under this Agreement or any document executed
in connection with the transactions contemplated by this Agreement.
21.13 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.
21.14 Radon Disclosure. 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. Pursuant to 1j404.056(8), Florida Statutes.
21.15 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.
21.16 No Negotiation With Other Persons. Seller agrees not to contract to sell or enter
into negotiations for the sale of the Property to any person or entity other than Purchaser for so
long as this Agreement is in effect.
21.17 Assigmnent. Purchaser may not assign its rights under this Agreement without
the consent of Seller (in Seller's sole discretion).
21.18 Police/Regulatory Powers. Purchaser 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 and/or Seller's
Adjacent Property, any improvements thereon, or any operations at the Property and/or Seller's
{M2363702;12}
27
Adjacent Property Nothing in this Agreement shall be deemed to create an affirmative duty of
Purchaser to abrogate its sovereign right to exercise its police powers and goverrunentaJ 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.
21.19 Negotiated Agreement. The parties have substantially contributed to the drafting
and negotiation of this Agreement and this Agreement shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than any other. The parties
hereto acknowledge that they have thoroughly read this Agreement, including all exhibits and
attachments hereto, and have sought and received whatever competent advice and counsel was
necessary for them to form a full and complete understanding of all rights and obligations herein.
21.20 No Recordation. Except as expressly provided herein, neither this Agreement nor
any notice or memorandum of this Agreement shall be recorded in any public records.
21.21 Merger. Unless expressly set forth herein, the terms and provisions of this
Agreement shall not survive the closing and such terms and provisions shall be deemed merged
into the Deed and extinguished at Closing.
21.22 Like-Kind Exchange Cooperation. Purchaser acknowledges that this transaction
may he part of a "Like-KindIl03l" exchange for the benefit of Seller, and Purchaser agrees to
reasonably cooperate with Seller so that the requirements of the Internal Revenue Code can be
satisfied with respect to such exchange. However, Seller's ability to arrange for and close on a
I 031 exchange is not a condition precedent to Seller's obligation to close under this Agreement.
In connection with such exchange Purchaser agrees, within ten (10) days of receipt of written
request from Seller, to execute such documents as may be required by Seller to effect such
exchange; provided, however, that (i) Purchaser shall not be obligated to execute any documents
which alter or diminish any of Purchaser's rights hereunder, (ii) the exchange shall not delay or
postpone the date of Closing under this Agreement, (iii) Purchaser shall not be responsible for
compliance with or be deemed to have warranted to Seller that any exchange does in fact comply
with Section 1031 of the Internal Revenue Code, and (iv) Purchaser shall not incur any expense
as a result of any such exchange.
21.23 Mutual Cooperation as to Construction Activities. Both Seller and City agree to
reasonably cooperate with the other to minimize disruption to the activities occurring on the
other party's lands during construction on a party's lands. Such cooperation shall include
providing the other party with contact information (including after-hours contact information) for
such party's construction manager prior to the commencement of any construction and providing
advance notice to the other party when the construction schedule may necessitate unusual hours
of operation for concrete pours and similar construction tasks. In addition, during development
of the park improvements, the City agrees not to permit construction involving heavy equipment
to take place during the hours that a live race meet is taking place or while horses are training on
the adjacent track and further agrees to cause its contractors to take reasonable precautions to
avoid sudden or loud noises while horse racing events are taking place on the Gulfstream Park
Tract. In order to assist City in scheduling its heavy construction activities to avoid interference
{M2363J02;J2}
28
with Seller's use of its adjacent horse track, Seller will provide City in advance with a schedule
of racing events as well as the hours during which horse training activities are scheduled to take
place during fall 2006 and 2007. The obligations of the parties set forth above in this Section
shall survive the Closing and delivery of the deeds of conveyance to the Property.
21.24 Mutual Waiver and Release. In consideration of the execution of this Agreement
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller, each on behalf of itself and its successors and assigns
(each, a "Releasor") hereby waives any and all claims of failure of performance or breach of
contract against the other party and releases and forever discharges and covenants not to sue the
other party and such other party's successors, assigns and affiliates, and their respective officers,
directors, shareholders, partners, members, managers, principals, employees, attorneys, agents
and any persons acting on their behalf (the "Released Parties") from or with respect to any and
all manner of action, causes of action, suits, debts, obligations, sums of money, covenants,
contracts, agreements, promises, damages, costs, expenses, claims and demands whatsoever
(including, without limitation, any attorneys' fees and costs incurred by the Releasor), whether
based on a tort, contract, statutory or other theory of recovery and whether for compensatory,
punitive, statutory or other forms of damage or relief, and whether derivative or direct. legal or
equitable, known or unknown which the Releasor ever had or now has or hereafter can, shall or
may have for, upon or by reason of any matter, cause or thing whatsoever and in all capacities
whatsoever, from the beginning of the world to the Effective Date, against any of the Released
Parties arising out of, related or in any way connected to Resolution No. 2005-10 and any prior
agreements or understandings between the parties relating to the sale and/or dedication and
conveyance of the Property.
[THE REST OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
{M2363702;12)
29
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed, as of the day and year first above written.
'"
Witnesses:
:-
-
.-
SELLER:
GULFSTREAM PARK RACING
ASSOCIATION, INC., a FIoridYJ
.---_~_~-rrporatiol~,/:7 /Y /' /// . /)
--- By: ~~
~ Name: F"'-ANl<-- ST~ACH
. Title: Ch=l..-~=--...... i.....+-e>-;.......... Cl::.O
//.///
-----
B fu €'LN-. f no /JTl\ 0Jl\.
;6~
By:
Name:
Title:
,M'j;f ~
Date: ,.-fIr _' 2006
6LAKtf ro,rIt,JA
FVP , tFo
Attest:
PURCHASER:
G....
IY\rtt C
CITY OF A VENTURA, a Florida nicipal
corporation k"
By: ~~
Eric M. Soroka
City Manager
Nf:1
Date: ~r !'-, 2006
ESCROW AGENT:
By:
Weiss Serota Helfman Pastoriza Cole &
Boniske .A.
2-
By:
Name:
Title:
Date: ~; J 0, 2006
{M2363702;12}
30
List of Exhibits & Schedules
Exhibit A Legal Description Property (7-acre parcel) I
I
Exhibit B Legal Description of Commercial proper::j
Exhibit C Legal Description of Additional Park Donation i
Land (I-acre parcel)
Exhibit D Legal Description of Adjacent Property (both
the MO District Property & the Commercial
Property)
Exhibit E Form of Development Agreement
Exhibit F Form of Easement Agreement
Exhibit G Legal Description of Gulfstream Park Tract
Exhibit H Legal Description of MO District Property
Exhibit! Restricted Access Covenant
Exhibit J Form of Special Warranty Deed
Exhibit K Form of Bill of Sale
Exhibit L Form of Section 1445 Certificate
Exhibit M Form of Affidavit of Title
Exhibit N Form of General Assignment ..-
Exhibit 0 Form of Construction License Agreement
Exhibit P Legal Description of
Hallandale Beach DR! Land
Schedule 11.4.3 Schedule of Pre-Filing Tasks for Required
Applications
{M2363702)2}
31
List of Exhibits & Schedules
Exhibit A Legal Description Property (7 -acre parcel)
Exhibit B Legal Description of Commercial Property
Exhibit C Legal Description of Additional Park Donation
Land (I-acre parcel)
Exhibit D Legal Description of Adjacent Property (both
the MO District Property & the Commercial
Property)
Exhibit E Form of Development Agreement
Exhibit F Form of Easement Agreement
Exhibit G Legal Description of Gulfstream Park Tract
Exhibit H Legal Description ofMO District Property
Exhibit I Restricted Access Covenant
Exhibit J Form of Special Warranty Deed
Exhibit K Form of Bill of Sale
Exhibit L Form of Section 1445 Certificate
Exhibit M Form of Affidavit of Title
Exhibit N Form of General Assignment
Exhibit 0 Form of Construction License Agreement
Exhibit P Legal Description of
Hallandale Beach DR! Land
Schedule 11.4.3 Schedule of Pre-Filing Tasks for Required
Applications
{M2363702;12}
31
EXlIlDlT A
LAND DESCRIPTION
PROPOSED CITY PARK
GULFSTREAM PARK
CITY OF A VENTURA, MIAMI-DADE COUNT\', FLORIDA
TRACT 'A' 6.02 ACRES
Portions of Tract A and Tract B. DONN ACRES, according to the plat thereof as recorded
in Plat Book 76, Page 30 of the Public Records of Miami-Dade County, Florida, being
more particularly described as follows:
COMMENCE at the Northeast comer of said Tract B and the Northeast comer of Section
34, Township 51 South, Range 42 East;
THENCE South 02"21'14" East on said East line of Tract B and the East line of said
Section 34, a distancc of 541.55 fcct to the Northeast comer of a parcel of land conveyed
to the City of Avertlura for highway purposes by Right-of-Way Deed recorded in Official
Records Book 11913, Page 3869 of the Public Records of Miami-Dade County, Florida;
THENCE on thc North linc of said Parcel conveyed to the City of Aventura the following
three (3) courses and distances;
1. Sou.tb 50029' 14" West, a distance of 32.10 feet (31.83 feet by deed) to the
beginning Qf a tangent curve concave to the Northwest;
2. Southwesterly on the are of said curve having a radius of 330.00 teet., through a
central angle of 31"32'07" (37034'38" by deed), an arc distance of 216.19 feet
(216.43 feet by deed) to a point of tangency;
3. South 88001'22" West, a dis1ance of 128.17 fe~l to the POINT OF BEGINNING;
TIIENCE continue Sooth 88001 '22" West on said North line, a distance of 561.58 fect;
THENCE North 01052'05" West, a distance of 507 .39 feet;
THENCE North 88009'53" East, a distance of 382.40 feet;
THENCE South 31041'02" East. a distance ofJ06.19 feet;
THENCE South 01052'05" East. a distance of257.81 feet to the POINT OF BEGINNING;
Prepared By'
CALVIN. GIORDANO AND l\SSOCIATES.IN'C
J BOO Eller on~. Suite 6iOO
fort UiudCrdla:le.F1orida 33316
Dtx;<tnber 9, 2003
RCVlliCd April 2$, 2006
P~\Projectt\200-I\012IYJ Gulflrtn:am Purk BOImdary Survey ofMi;ami OilIdc Poftioo\sUkVEY\Lepl OeltCnptiooli\Prnpc!lic:d PArt
A~,Il,.,?an:',e11&2_042706.doc::,
Sheet I of 4 Sheets
EXHIBIT A
TOGHETER WITH
TRACT 'D' 0.98 ACRES
Portions of Tract A and Tract B, DONN ACRES, according to the plat thereof as recorded
in Plat Book 76, Page 30 of the Public Records of Miami-Dade County, Florida. being
more particularly described as follows;
COMMENCE at the Northeast corner of said Tract B and the Northeast corner of Scction
34, Township 51 South, Range 42 East;
THENCE South 02021'14" East on said East line of Tract B and the East line of said
Section 34, a distance of 541.55 feet to the Northeast comer of a parcel of laud conveyed
to the City of Aventura for highway purposes by Right-of-Way Deed recorded in Official
Records Book 17973, Page 3869 of the Public Records of Miami-Dade County, Florida;
THENCE on the North line of said Parcel conveyed to the City of Aventura the following
three (3) courses and distances;
1. Soulh 50029'14" West, a distance of 32.10 fect (31.83 feet by deed) to thc
beginning of a tangent curve concave to the Northwest;
2. Southwesterly on the arc of said curve having a radius of 330.00 feet, through a
central angle of 37032'07" (37034'38" by deed), an arc distance of 216.19 feet
(216.43 feet by deed) to a point of tangency;
3. South 88001 '22" West, a distance of 107.88 feet to the POINT OF BEGINNING;
THENCE continue South 88001'22" West, a distance of20.29 feet;
THENCE North 01052'05" West, a distance of257.81 feet;
THENCE North 37041 '02" West, a distance of 306.19 feet;
THENCE South 88009'53" West, a distance of382.40 feet;
THENCE North 01052'05" West, a distance of 17.63 feet;
THENCE North 88009'53" East, a distance of 581.87 feet;
THENCE South 01052'05" East, a distance of 523.58 feet to the POINT OF BEGINNING;
Prepured By:
CALVrN, GIORDANO AND ASSOCIATES. INC.
1800 EIIet Drive, SIJ:>'tt: 600
Fort Lauderdale. Flonda 33316
December 9, 2003
R~isedi\pril2~, 2006
P:\Projects\2001 'i) 12193 GulfstrClImPart Boundary SUTVey of Miami Dade ronion\SURYEy\Leglll Oe~criplioll~\Pnlposcd Park
Area_Pared 1&2._042706,doc
Sheet 2 of 4 Sheets
EXHIBIT A
Said lands lying in the City of A ventura, Miami-Dade County, Florida and containing total
net area 305,015 square feet 1.00 (acres) more or less.
NOTES:
I. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper.
2. Lands described hereon were not abstracted, by the surveyor, for ownership,
easements, rights--of-way or other instruments that may appear in the Public
Records of Miami-Dade County.
3. Bearings shown hereon are relative to the East line of Tract B. DONN ACRES, as
recorded in Plat Book 76, Page 30, Miami-Dade County Records. with said East
line having a bearing of Sauth 02021' 14" East.
4. 'DIe description contained herein and the attached sketch, do not represent a field
Boundary Survey.
Date: 5'-1-0 ~
l'rcpared By
CALVIN, GIORDANO ., N () MSOC1A lIS, INC
1 &00 filer Dnve, SUik 600
Fort I....ud.emale-~ Florida 33316
Deeembcr 9. 2003
tt.eviscd April 28. 2006
P":\Pro~\2-OOJ\C121?3 Oul61wolt'l "~ BoundIry' SbrVeyo( MiMl'ti Dade P<><<ioo\(HJRV€Y\t."8I'l ~ripti(Wl~~ fisk
AMD..J~ret:;! 1&2-'J427{)6,00c:
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EXHIBIT B
I.AND DESCRIPTION
ZONNING H2
GULFSTREAM PARK
CITY OF AVENTURA, MIAMI-DADE COUNTY, FLORIDA
Portion of Tract A, DONN ACRES, according to the plat thereof as rtcorded in Plat
Book 76, Page 30 of the Public Records of Miami-Dade County, Florida, being more
particularly described as follows:
COMMENCE at the Nortbeast comer of Tract B of said DONN ACRES and the
Nortbeast corner of Section 34, Township 5\ SOU01, Range 42 East;
THENCE South 88001 '22" West onilie North line of said Tracts A and B and the North
line of said Section 34, a distance of 1,361.77 feet tothePOlNT OF BEGINNING;
THENCE South 01 058'49" East, a distance of 629.41 fcet to the intersection with the
North line of a parcel of land conveyed to the City of A ventura for highway purposes by
Right-of-Way Deed recorded in Official Records Book 17973, Page 3869 of the Public
Records of Miami-Dade County, Florida,
THENCE on said North line of a Pareel of land conveyed to the City of Aventllr3 the
following four (4) courses and distances;
I. South 88001'22" West, II distance of ]090,89 feet to the beginning of II tangent
curve concave to the North;
2. Westerly on the are of said curve having a radius of614.09 feet, through a cenlnd
angle of21'05'30", an are distance of226.06 feet;
3. North 70053'08" West, a distance of 131.73 feet to the beginning of a tangenl
curve concave to the NorOleast;
4. Northwesterly on the arc of said curve having Ii radius of 25.00 feet, thn:>ugh Ii
central angle of 88.53'36", an arc distance of 38.79 feet to a point of reverse
curvature with a curve concave to the Northwest, said point being located on the
West line of said Tract A, DONN ACRES;
THENCE Northeasterly on said West line ofTtact A and on the arc of said curve baving
a radius of 3909.83 feet, through a centra] angle of 07046'10", an art distance of530.]8
feet to the Northwest corner of said Tl1lct A and the intersection with said North line of
Section 34;
P1"pai1ldBy:
CALVIN. GiORDANO AND ASSOCIATES. fNC
J80Q e.k:t tlrive. SuilllflOO
Fort LA.udttdaJe.. Aoridtl J3J 16
Apri12S. 2006
P::\,Pn)ject!l-lJOOt'D12193 OultMream Pait B\'MId1:ry Sun<ey of Miami Dade P<<tJOl'l\SURVEYU...egal ()cscrtjJljON~iiinB_ro
^"".doc
Sheet I on Sheets
~XHIBlTB
THENCE North 88001 '22" East on said North line of Tract A and said North line of
Section 34, a distance of 1,302.36 feet to the POlNf OF BEGlN},'1NG;
Said lands lying in the City of Aventura, Miami-Dade County, Florida and containing
859,328 sqtlare feet (19.727 acres) more or less.
NOTES:
J. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper.
2. Lands described hereon were not abstracted, by tbe surveyor, for ownen;bip,
easements, rights-of-way or other instruments thai may appear i.n the Public
Records of Miami-Dade County.
3. Bearings shown hereon are relative to the North line of Tracts A md B, DONN
ACRES, as recorded in PIal Book 76, Page 30. Miami-Dade COllnty Records,
with said North line having a hearing of South 88.01'22" West.
4. The description contained herein and the attached sketch, does nol represent a
field Boundary Survey.
.S-i-Ok
G~'Ory J. lem t
PJ;bfessional S e r and Mapper
Florida Regis lion Number LS 4479
P~red By:
CALVrN, GIORDANO AND ASSOCIATES, me.
1800 Eller Drive, SIJ,TIe 600
ftt\ 1..._.le. florid.),)16
April 2&, 2006
r:\Projects\2001\01219<3 Ouiffstftam Park Boundary SuM)' of Mitmi 0Iade Ponioo'SURVEY\Lqal De$crjptioos\Zo.nn.n&....B2
.."...do<
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EXHIBIT C
LAND DESCRIPTION
PROPOSED CITY OF A VENTURA PARK TRACT B
GULFSTREAl\ct PARK
CITY OF A VENTURA, MJAMI-DADE COUNTY, FLORIDA
Portions of Tract A and Trdct B, DONN ACRES, according to the plat thereof as recorded
in Plat Book 76, Page 30 of the Public Records of Miami-Dade County, Florida, being
more particularly described as follows:
COMMENCE at the Northeast comer of said Tract B and the Northeast comer of Section
34, Township 51 South, Range 42 East;
THENCE South 02021'14" East on said East line of Tract B and the East line of said
Section 34, a distance of 541.55 feet to the Northeast corner of a parcel of land conveyed
to the City of Aventura for highway purposes by Right-of-Way Deed recorded in Official
Records Book 17973, Page 3869 oHhe Public Records ofMiamt-Dade County, Florida;
THENCE on the North line of said Parccl conveyed to the City of Aventura the following
three (3) courses and distances;
1. South 50029' 14" West, a distance of 32.10 feet (31.83 feet by deed) to the
beginning of a tangent clIrve concave to the Nortllwest;
2. Southwesterly on the arc of said curve having a radius of 330.00 feet, through a
central angle of 37032'07" (37034'38" by deed), an arc distance of 216.19 feet
(216.43 feel by deed) to a point of tangency; .
3. South 8800] '22" West," distance of 107.88 feet to the POINT OF BEGINNING;
THENCE continue Soulh 88"01'22" West, a distance of20.29 feet;
THENCE North 01052'05" West, a distance of257,81 feet;
THENCE North 37041 '02" West, a distance of306,19 feet;
THENCE South 88009'53" West, a distance of382.40 feet;
THENCE North 01052'05" West, a distance of 17.63 feet;
THENCE North 88009'53" East, a distance of 581.87 feet;
Prepared By:
CAn1N, GIORDANO AND ASSOCIATES, lNC
) 800 Eller Drive, SuHe 600
Fort lAltderdale, f1ori~ 33316
l)c:-ccmber 9. 2003
Reviood Al>riI2~, 2006
P:\PrQjecL'i\2001\f)l21~3 G\ilf~t.ream Pari:: Boundary Survc:y ofMi~miWc Portion\SlfRVEY'L-epJ Descripticms\Proposoo Park NEW
AIelll_0501Q6i1oc
Sheet 1 of 3 Sheets
EXHllllT C
THENCE South 01052'05" East, a distance of523.58 feel to the POINT OF BEGINNING;
Said lands lying in the City of Aventllra, Miami-Dade County, Florida and containing total
net area 42,760 square feet (0.98 acres) more or less.
NOTES:
I. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper.
2. Lands described hereon were not abstracted, by the surveyor, for ownership,
easements, rights-of-way or other inslmments that may appear in the Public
Records of Miami-Dade County.
3. Bearin.gs shown hereon are relative to the East line of Tract B, DONN ACRES, as
recorded in Pial Book 76, Page 30, Miami-Dade County Records. with s"id East
line having a bearing ofSoulh 02'21 '14" East.
4. The description contained herein and the attached sketch, do not represent a field
Boundary Survey.
Date: S-(-Dc.
Prepared By:
CALV!N:, GIORDANO AND ASSOCIATES, me
1 800 EHerDrive, SUIte: 600
Fort l..lllllllenh\le, 1-1oritla )J 31 (,
December 9,2;003
~e'J'istd April 28; 2006
P:\ProjeclS\2001\D12193 Gulfstrtam.Pilt'k Bounllary SUrY9 of Mian\i Dade f>ortiOl1\SURVEY\Leg:lll)c~ptions\Proposed ?;Jrk NEW
Area;,..050106..doc
Sheet 2 of 3 Sheets
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F:XHJBIT D
LAND DESCRIPTION
ZONNING 82
GULFSTREAM PARK
CITY OF A VENTlJRA, MIAMI-DADE COUNTY, I"WRIDA
Portion of Tract A, DONN ACRES, according to the plat thereof as recorded in Plat
Book 76, Page 30 of the Public Records of Miami-Dade County, Florida, being more
particularly described as follows:
COMMENCE at the Northeast corner of Tract B of said DONN ACRES and the
NorthellSt comer of Section 34, Township 51 South, Range 42 East;
THBNCB South 88.01'22" West on the North line of said Tracts A and B and the North
line of said Section 34, a distance of 1,361.77 feet to the POINT OF BEGINNING;
THENCE South 01.58'49" Easl, a distance of 629.41 feet to the intersection with the
North line ofa parcel ofland conveyed to the City of AventunI for highway plllJlOSeS by
Right-of-Way Deed recorded in Official Records Book 17973, Page 3869 of the Public
Records of Miami-Dade County, Florida;
THENCE on said North line of a Parcel of land conveyed to the City of Avcntllra the
following four (4) eOllrses and dislances;
I. South 88"01 '22" West, a distance of 1090,89 feet to the beginning of a tangent
cnrveconcave to tbe North;
2. Westerly on the arc of said curve having a radius of614.09 feet, througb a central
angle of 2 JO05 '30", an arc distance of226.06 feet;
3, North 70"53'08" West, a distance of 131.73 fee( 10 the beginning of a tangent
curve concave to the Northeast;
4. Northwesterly on the arc of said curve baving a radius of 25.00 feet, through a
central angle of 88"53'36M, an arc distance of 38.79 feet to a point of reverse
eurvature with a curve concave to the Northwest, said point being located on the
West line of said Tract A, DONN ACRES;
THENCE Nor!beasterlyon said West line of Tract A and on the arc of said curve having
aradius 00909.83 feet, through a central angle of 07046.' 10M, an arc distance of 53Q.18
feet to the Northwest comer of said Tract A and the intersection with said North line of
Section 34;
Propare.J By
tAL VIN, GIDRDANO ANt) ASSOCIATES, INC
Itwo Elk:. Drive, SlJ"itc 60()
fi:lf1L.AlJderd.le. Florid:l!; 133! (;
Apnll,g. 2006
P:\f>roje<:t!i.\2001 \011 i oljI) O....Wr.freoIn1 f"lI;rk fi......mrl.l;ry 3.."""'.)'..f M film' fhtk, J'Nf"tK1n\$I)RVFY\Lcpi ~Tipl;ilmsV.on",i"~. BJ Arr..l
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EXHIBIT D
THENCE North 88.01'22" East on said North line of Tract A and said North line of
Section 34, a distance of 1,302.36 feet to the POINT OF BEGINNING;
Said lands lying in the City of Aventura, Miami-Dade County, Florida and containing
859,328 square feet (19.727 acres) more or less.
NOTES:
I. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper.
2. Lands described hereon were not abstracted, by the surveyor, for ownership,
easements, rights-of-way or other instruments that may appear in the Public
Records of Miami-Dade County.
3. Bearings shown hereon are relative to the North line of Tmcts A and B, nONN
ACRES, as recorded in Plat Book 76, Page 30, Miami-Dade County Records,
with said North line having a bearing of South 88.01 '22" West.
4. The description contained herein and tbe attached sketch, does not represent a
field Boundary Survey.
Date: ~:-tf2~
Prepamt By:
CALVIN, OlORDANO ^-ND A.SSOC1ATES,lNC.
IWO Ell.. Drive, s.m. 600
I'ort l.oudcrdol<. Roridal))16
April:2$t2006
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EXHIBIT D
LAND DESCRIPTION
MO TRACT LESS PARK
GUL.FSTREAM PARK
CflY OF A VENTURA, MIAMI-DADE COUNIT, FLORIDA
Portions of Tract A and Tract B, DONN ACRES, according to the plal thcTC(lf as
recorded in Plat Book 76, Page 30 of the Public Records of Miami-Dade County, Florida,
being more particularly described as follows:
BEGINNING at the Northeast comer of said Tract B and the Northeast corner of Section
34, Township 51 South, Range 42 East;
THh'NCE South 02021 '14" East on the East line of said Tract B and the East line of said
Section 34, a distance of 541.55 feet 10 the Northeast comer of a parcel of land conveyed
to the City of Aventura fur highway purposes by Right-of-Way Deed recorded in Official
Records Book 17973, Page 3869 of the Public Records of Miami-Dade County, Florida;
THENCE on the North line of said Parcel conveyed to the City of A ventura the following
three (3) courses and distances;
1. South 50029'14" West, a distance of 32.10 feet (31.83 feet by deed) to the
beginning of a tangent curve concave to the Northwest;
2. Southwesterly on the arc of said curve having a radius of 330.00 feet, through a
central angle of 37032'07" (37034'38" by deed), an arc distance of216.19 feet
(216,43 feet by deed) to a point oflangency;
3. South 880m '22" West, a distance of 107,88 feet;
THENCE North 01052'05" West, a distance of 523.58 feet;
THENCE South 88009'53" West, a distance of 581.87 feet;
THENCE South 01052'05" East, a distance of 525.02 feet to th.e intersection with the
North line ofsaid Parcel of land conveyed to the City of A\'eI1tura;
THENCE South 88001'22" West on said North line, a distance of 449,07 feet;
THENCE North 01058'38" West, a distan.ce of 629.4 1 feet to intersection with the North
line of said Tract A and the NQrth line of said Section 34;
frepored fly:
CAlV IN. QlORDANO AND ASSOCtA TF.s, lNC,
1800- Elleor Drive" SuikWO
Fort LaudCJda.le.- Rood. ,)3316
April 28, 2006
r~<!l:<<U\2001 \()12'9J, Ol.J.tfmoeam Pttk 8oond.a1y Survey of Mi.nii n.dC Portlon\SURVE't'\Lc:gI:1 ~ptitm$\Zt.'\fJ1l.in&...ER Area
Exhi.bit DAoc
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EXHIBIT J)
THENCE North 88001'22" East on sa,d North line of Tract A and the North line of
Section 34, a distance of 1 ,361.77 feet to the POINT OF BEGINNING;
Said lands lying in the City of Aventura, Miami-Dade County, Florida and conlaining
546,954 Square feet (12.556 acres) more or less.
NOTES:
5. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper,
6. Lands described hereon were not abstracted, by tbe surveyor, for ownership,
easements, rights-of-way or other instrllll1ents that may appear in the Public
Records of Miami-Dade Counly.
7. Bearings slmwn hereon are relative 10 the East line of Tract B, DONN ACRES, a.,
recorded in PIal Book 76, Page 30, Miami-Dade County Records, with said East
line having a bearing OfSOlllh 02021' 14" Easl.
8. The description contained herein and the attached sketch, do not represent a field
Boundary Survey.
CALV ., GIORDANO AND A,
fi ~~
(;-I-{)0
Pn:".roo By;
C.AL V IN. GIORDANO AND ASSOCIATES. INC.
j lJOO E1IcT Drive. Sui.. 600
Fort J.,oudenlale, fl..... 33316
April2S. 2006
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EXHIBIT E
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (hereinafter the "Agreement") is made
and entered into this _ day of ,2006 (the "Effective Date"), by and
between GULFSTREAM PARK RACING ASSOCIATION, INC., a Florida Corporation
(hereinafter, the "Developer"), and the CITY OF A VENTURA, Florida, a Florida
municipal corporation (hereinafter the "City").
WITNESSETH:
WHEREAS, Developer is the Owner of that certain parcels of land located within
the boundaries of the City, the legal descriptions of which is attached hereto and made a
part hereof as Exhibit "A" ( the "Property"); and
WHEREAS, the Property is currently zoned as B2 ("Community Business")
under the City's Land Development Regulations, and the Developer and the City
mutually desire that the Property ultimately be developed as permitted in the City's
comprehensive plan and zoning code (the "Project"); and
WHEREAS, the Developer and the City desire to establish certain terms and
conditions relating to the proposed redevelopment of the Property and wish to establish
certainty as to the ultimate development of the Project;
NOW, THEREFORE, in consideration of the conditions, covenants and mutual
promises hereinafter set forth, the Developer and City agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby
incorporated herein by reference. All exhibits to this Agreement are hereby deemed a part
hereof.
2. Definitions.
a. "Adjacent Property" the real property, conslstmg of the Commercial
Property and the MO District Property, owned by Developer located
adjacent to the Property and more specifically described on Exhibit "A"
attached hereto and made a part hereof.
b. "Comprehensive Plan" means the plan adopted by the City pursuant to
Chapter 163, Florida Statutes ("F.S."), meeting the requirements of
Section 163.3177, F.S., Section 163.3178, and Section 163.3221(a), F.S.,
which is in effect as of the Effective Date.
c. "Developer" means the person undertaking the development of the
Property, as defined in the preamble to this Agreement, or any successors
or assigns thereof.
"""T.. - T
d. "Development" means the carrying out of any building activity, the
making of any material change in the use or appearance of any structure or
land, or the dividing of land into three or more parcels and such other
activities described in Section 163.3221(4), Florida Statutes (2004).
e. "Development Approval" means the Existing Zoning.
f. "Development Permit" includes any building permit, zoning permit,
subdivision approval, rezoning, certification, special exception, variance,
or any other official action of local government having the effect of
permitting the development ofland.
g. "Effective Date" is the latter of the dates of recordation of this instrument
or thirty days after this instrument has been received by the state land
planning agency pursuant to Section 163.3239, Fla. Stat.
h. "Existing Zoning" is comprised of City of Aventura Ordinance 99-09, as
amended by Ordinance No. 2006-02, which adopts the effective land
development regulations governing development of the Project.
1. "Governing body" means the board of county cornmissioners of a county,
the commission or council of an incorporated municipality, or any other
chief governing body of a unit of local government.
J. "Gulfstream Park Tract" means the land and improvements lying in
Hallandale Beach, Florida and legally described in Exhibit "B" attached
hereto.
k. "Hallandale Beach DRl Land" means the real property and improvements
(excluding, but adjacent to, the Gulfstream Park Tract) now or hereafter
located on the real property owned by Developer and lying in Hallandale
Beach, Florida, said real property located immediately north of the
Property and legally describes in Exhibit "C" attached hereto.
I. "Land" means the earth, water, and air, above, below, or on the surface
and includes any improvements or structures customarily regarded as land.
m. "Land Development Regulations" means ordinances, rules and policies
enacted or customarily implemented by the City for the regulation of any
aspect of development and includes any local government zoning,
rezoning, subdivision, building construction, or sign regulation or any
other regulations controlling the development of or construction upon land
in effect as of the Effective Date.
n. "Laws" means all ordinances, resolutions, regulations, comprehensive
plans, land development regulations, and rules adopted by a local
government affecting the development of land.
Page 2 of 10
o. I1Local government" means any county or municipality or any special
district or local governmental entity established pursuant to law which
exercises regulatory authority over, and grants development permits for,
land development.
p. "Project" means development permitted pursuant to the Existing Zoning.
q. "Public facilities" means major capital improvements, including, but not
limited to, transportation, sanitary sewer, solid waste, drainage, potable
water, educational, parks and recreational, and health systems and
facilities.
r. "Site Plan" is comprised of a scaled and dimensioned site plan (with
landscaping), elevation and typical floor plan submitted for administrative
approval and reviewed for consistency with the Existing Zoning.
s. "Utility" includes any person, firm, corporation, association or political
subdivision, whether private, municipal, county or cooperative, which is
engaged in the sale, generation, provision or delivery of gas, electricity,
heat, water, oil, sewer service, telephone service, telegraph service, radio
service or telecommunication service.
3. Intent. It is the intent of the Developer and the City that this Agreement
should be construed and implemented so as to effectuate the purposes and intent of the
parties and the purpose and intent of the Florida Local Government Development
Agreement Act, Section 163.3220, F.S., et. al.
4. Effective Date and Duration. This Agreement shall become effective on
the Effective Date. The Agreement shall be recorded in the public records of Miami-
Dade County and shall run with the land and shall be binding on all parties and all
persons claiming under it for a term of ten (10) years from the Effective Date. The term
of this Agreement may be extended, as well as any other change to this Agreement,
including release or partial release, upon execution of an instrument by the Developer (or
its assigns, which may include, but not be limited to a Community Development District
and/or a master property owners' association with appropriate authority over the
Property) and with the consent of the, then, owner(s) of a majority of the Property,
provided that such change has been approved by the City after public hearing, pursuant to
Sections 163.3225, and 163.3229, Florida Statutes. The City may apply subsequently
adopted laws and policies to the Property solely pursuant to the procedures of Section
163.3233(2), Florida Statutes.
5. Pennitted Development Uses and Building Intensities.
(a) Permitted Development Uses. Prior to the adoption and acceptance
of this Agreement, the City has designated the Property as B2 ("Community
Business") on the official zoning map of the City, pursuant to the City's Land
Development Regulations ("Existing Zoning"). In granting the Existing Zoning,
Page 3 of 10
""'"'T"- T--
the City has determined that development thereunder is consistent with the City's
Comprehensive Plan and that it is in accordance with the City's land development
regulations in effect as of the Effective Date. Upon execution of this Agreement
and for the duration thereof, the City confirms and agrees that the Property may
be developed and used for the purposes established in the City's Comprehensive
Plan, and Land Development Regulations in effect as of the Effective Date of this
Agreement, or such laws and policies subsequently adopted and applied to the
Property solely pursuant to the procedures of Section 163.3233(2), Florida
Statutes. The City and Developer mutually consent and agree that the additional
limitations and conditions set forth in this Agreement serve as the sole basis upon
which the parties enter into this Agreement.
(b) Density, Building Heights, Setbacks and Intensities. Except as
otherwise provided herein, the maximum height, setbacks and intensities for any
development on the Property shall be regulated by the Land Development
Regulations in effect as of the Effective Date and the applicable designations in
the City's Comprehensive Plan.
6, Pro; ect Aooroval.
(a) Further Development Review. The Existing Zoning, the
Land Development Regulations, the Comprehensive Plan, and this Agreement
establish the criteria upon which the Property shall be developed during the term
of this Agreement.
Consistent with the foregoing, prior to the issuance of any building permit within
any portion of the Property, the Developer shall submit a Site Plan for the
building site that includes the proposed building for administrative site plan
approval by the City. Site Plans for individual building sites shall be designed to
conform with the terms and criteria provided in this Agreement, with the Existing
Zoning and other Land Development Regulations in effect as of the Effective
Date. The administrative approval process shall not prohibit development of any
Site Plan so long as the site development criteria within the development subject
to the Site Plan is in compliance with the Existing Zoning and generally
consistent with the terms contained in this Agreement. Application for
administrative site plan review shall be in accordance with Section 31-79 of the
Land Development Regulations. If it is found during the administrative site plan
review that the proposed development does not comply with the Existing Zoning,
the applicant shall either revise the plan to so comply or request approval of the
City Commission as provided in the Land Development Regulations.
In the event that the City administrator does not approve the Site Plan, the
Developer, owner of the parcel, or their successors and/or assigns maintain the
right and the ability to appeal the administrative decision directly to the City
Commission for the City Commission to determine whether the City administrator
erred in its decision to deny the approval of the Site Plan based on the plan's
conformance with this Agreement, the Existing Zoning and the Land
Page 4 of 10
Development Regulations in effect as of the Effective Date. The City agrees to
process any appeal to the City Commission in accordance with Section 3 I -83 of
the Land Development Regulations
(b) Downzoning. For the duration of this Agreement, the City shall
not downzone or otherwise limit the ability of the Developer to develop the
Property in accordance with the Development Approvals and nothing shall
prohibit the issuance of further development orders and approvals in conformity
with same. However, the City may apply subsequently adopted laws and policies
to the Property, solely pursuant to the procedures of Section 163.3233(2), Florida
Statutes.
7. Public Services and Facilities; Concurrencv. The City and Developer
have established that all public facilities and services which are required to service the
Project, the entities responsible for providing such facilities, the date any new public
facilities, if needed, will be constructed, and a schedule for the construction of such
public facilities are set forth in Exhibit "D". For the purposes of concurrency review, it is
hereby found that, throughout the duration of this Agreement, sufficient infrastructure
capacities will be reserved and remain available to serve this Project. All subsequent
development orders or permits sought to be issued which are in conformity with this
Agreement are hereby found to meet concurrency standards set forth in the
Comprehensive Plan as such standards may be amended from time to time (concurrency
regulations) and to be consistent with Land Development Regulations, so long as the
Developer develops the Property in general compliance with the terms and conditions
contained within the Existing Zoning and this Agreement.
8. Reservation or Dedication of Land. Except as otherwise provided below
and pursuant to applicable subdivision regulations, the Developer shall not be required to
dedicate or reserve any land within the Property for municipal purposes.
(a) Public Park. The City and the Developer have entered into a
Purchase and Sale Agreement dated , 2006 (the "Purchase and Sale
Agreement"), which agreement contemplates the acquisition by the City of certain
additional lands owned by the Developer.
9. Local Development Permits. The development of the Property in
accordance with the Existing Zoning is contemplated by the Developer. The City may
need to approve certain additional development permits in order for the Developer to
complete the Project in a manner consistent with the Development Approvals and the
Land Development Regulations in effect as of the Effective Date and Comprehensive
Plan designations affecting the Property, such as:
(a) Site Plan approvals;
(b) Land Improvement Permits
(c) Subdivision plat and or waiver of plat approvals;
(d) Water, sewer, paving and drainage permits;
Page 5 of 10
(e) Covenant or Unity of Title acceptance or the release of existing
unities or covenants;
(I) Building permits;
(g) Certificates of use and/or occupancy; and
(h) Any other official action of the City and/or Miami-Dade County,
Florida, having the effect of permitting the development of land.
10. Consistency with Comprehensive Plan. The City hereby finds that the
development of the Property in conformity with the Existing Zoning is consistent with
the City's Land Development Regulations and Comprehensive Plan designation as of the
Effective Date and shall not be subject to any future changes to the City's Land
Development Regulations and Comprehensive Plan designation after the Effective Date;
provided, however, the City may apply subsequently adopted laws and policies to the
Property solely pursuant to the procedures of Section 163.3233(2), Florida Statutes..
11. Necessitv of Complving with Local Regulations Relative to Development
Permits. The Developer and the City agree that the failure of this Agreement to address a
particular permit, condition, fee, term or restriction in effect on the Effective Date of this
Agreement shall not relieve Developer of the necessity of complying with the regulation
governing said permitting requirements, conditions, fees, terms or restrictions as long as
compliance with said regulation and requirements do not require the Developer to
develop the Property in a manner that is inconsistent with the Development Approvals.
12. Impact Fees. The impact fees that are in effect as of the effective date of
this Agreement and which would apply to the development of the Project, together with
the Circulatory Shuttle Bus System Impact Fee described in the 2005 Evaluation and
Appraisal Report to the City's Comprehensive Plan, are specifically provided in Exhibit
"En. It is agreed and understood by the parties that no other impact fees other than those
listed will apply to the development of the Project. No new impact fees or increases to
the fees in existence as of the Effective Date, apart from the Circulatory Shuttle Bus
System Impact Fee, shall be adopted by the City or otherwise be applied to the
development of the Project during the duration of this Agreement. The City and
Developer shall coordinate their efforts to derive the maximum benefit of any impact fee
payments in favor of the Project and the City.
13. Reservation of Development Rights. For the term of this Agreement, the
City hereby agrees that it shall permit the development of the Project in accordance with
the City's Land Development Regulations, the City's Comprehensive Plan, and existing
laws and policies as of the Effective Date of this Agreement which are or may be
applicable to the Property, subject to the conditions of this Agreement. However, nothing
herein shall prohibit an increase in developmental density or intensity within the Project
in a manner consistent with the City's Comprehensive Plan and Land Development
Regulations, or any change requested or initiated by the Developer in accordance with
applicable provisions of law. Moreover, the City may apply subsequently adopted laws
and policies to the Property solely pursuant to the procedures of Section 163.3233(2),
Florida Statutes.
Page 6 of 10
The expiration or termination of this Agreement, for whatever reason,
shall not be considered a waiver of, or limitation upon, the rights, including, but not
limited to, any claims of vested rights or equitable estoppel, obtained or held by the
Developer or its successors or assigns to continue development of the Project in
conformity with the Development Approvals and all prior and subsequent development
permits or development orders granted by the City, including, but not limited to, those
rights granted under the City's Comprehensive Plan and land development regulations.
14. Conditions, Terms or Restrictions Deemed Necessary by Local
Government for Public Health, Safetv and Welfare. Vehicular access (other than as may
be required by government for emergency vehicles) to and from Developer's Hallandale
Beach DRl Lands and the Gulfstream Park Tract to N.E. 213th Street on and after the date
the first temporary certificate of occupancy is issued for a residential building constructed
on the Adjacent Property shall be prohibited, provided, however, that until such access is
permanently prohibited as set forth above, vehicular access to the Gulfstream Park Tract
from N.E. 213th Street shall be permitted on an interim basis subject to the following
restrictions: (i) access by the public shall be restricted to weekends and holidays on which
horse racing events are scheduled at Gulfstream Park, (ii) after the execution of a
mutually acceptable construction phasing plan, access on all other days shall be restricted
to construction vehicles, provided that such access shall be permitted only until such time
as construction of the renovation and expansion of the improvements to the Clubhouse
and the Slot Facility Building now or hereafter located on the Gulfstream Park Tract is
completed, and (iii) at no time shall vehicular access from N.E. 2l3th Street to
Developer's Hallandale Beach DRl Land be permitted for any purpose (other than as may
be required by the government for emergency access).
15. Binding Effect. The obligations imposed pursuant to this Agreement upon
the Developer and upon the Property shall run with and bind the Property as covenants
running with the Property, and this Agreement shall be binding upon and enforceable by
and against the parties hereto, their personal representatives, heirs, successors, grantees
and assigns, and a copy of this Agreement shall be recorded in the Public Records of
Miami-Dade County, Florida, at the sole cost and expense of the Developer upon
execution of this Agreement.
16. Governing Laws. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida. The Developer and the City agree that
Miami-Dade County, Florida is the appropriate venue in connection with any litigation
between the parties with respect to this Agreement.
17. Entire Agreement. This Agreement sets forth the entire Agreement and
understanding between the parties hereto relating in any way to the subject matter
contained herein and merges all prior discussions between the Developer and the City.
Neither party shall be bound by any agreement, condition, warranty or representation
other than as expressly stated in this Agreement and this Agreement may not be amended
or modified except by written instrument signed by both parties hereto.
Page 7 of 10
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18. Cancellation and Enforcement. In the event that the Developer, its
successors and/or assigns fails to act in accordance with the terms of the Existing Zoning,
the City shall seek enforcement of said violation upon the Property.
Enforcement of this Agreement shall be by action against any parties or person
violating, or attempting to violate, any covenants set forth in this Agreement. The
prevailing party in any action or suit pertaining to or arising out of this Agreement shall
be entitled to recover, in addition to costs and disbursements allowed by law, such sum as
the Court may adjudge to be reasonable for the services of his/herlits attorney. This
enforcement provision shall be in addition to any other remedies available at law, in
equity or both.
19. No Third Party Beneficiaries. The parties to this Agreement do not intend
the benefit of this Agreement to inure to any third party. Nothing in this Agreement
expressed or implied is intended or shall be construed to confer upon or give to any
person other than the parties hereto and their successors, heirs or permitted assigns, any
rights or remedies under or by reason of this Agreement.
[Signature Page Follows]
Page 8 of 10
'-,--- T
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CITY:
ATTEST:
CITY OF A VENTURA, FLORIDA
By:
City Clerk
day of
,2005
Approved as to form and legality
By office of City Attorney for
, City of Aventura, Florida
Page 9 of 10
TO ~ 'T
DEVELOPER:
WITNESSES:
GULFSTREAM PARK RACING
ASSOCIATION, INC., a Florida corporation
By:
Name:
Title:
Signature
Print Name
Signature
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)
)
ss.
The foregoing instrument was acknowledged before me this _ day of
, 2006, by , as of Gulfstream Park
Racing Association, Inc., a Florida corporation, on behalf of the corporation. S/he is
personally known to me or has produced as
identification, and acknowledged that s/he did execute this instrument freely and
voluntarily for the purposes stated herein.
My Commission Expires:
Notary Public, State of Florida
Print Name
Page 10 of 10
EXHIBIT "A"
ADJACENT PROPERTY
EXHIBIT "B"
GULFSTREAM PARK TRACT
EXHIBIT "c"
HALLANDALE BEACH DR! LAND
-.-.-r....-.. T
..""T- -..- T"
EXHIBIT "D"
SCHEDULE FOR CONSTRUCTION OF PUBLIC FACILITIES
EXHIBIT "E"
IMPACT FEES
This instrument
Prepared by and, following
recording will return to:
Janice L. Russell, Esq.
28th floor
EXHIBIT L
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (this "Agreement") is made this day of
, 2006, by and between the CITY OF A VENTURA, a Florida municipal
corporation ("Grantor"), and GULF STREAM PARK RACING ASSOCIATION, INC., a Florida
corporation ("Grantee").
(WHEREVER USED HEREIN, THE TERMS "GRANTOR" AND "GRANTEE' INCLUDE ALL
OF THE PARTIES TO THIS INSTRUMENT AND THE HEIRS, LEGAL REPRESENTATIVES
AND ASSIGNS OF INDIVIDUALS AND THE SUCCESSORS AND ASSIGNS OF
CORPORATIONS OR OTHER ENTITIES.)
WIT N E SSE T H:
WHEREAS, simultaneously with the execution and delivery of this Agreement, Grantee
has conveyed to Grantor that certain real property located in Miami-Dade County, Florida, as
more particularly described on Exhibit "A" attached hereto and made a part hereof (the "New
Park Property");
WHEREAS, Grantee is the owner of that certain real property located in Miami-Dade
County, Florida, as more particularly described on Exhibit "B" attached hereto and made a part
hereof (the "Grantee Property");
WHEREAS, Grantee desires certain easements over the New Park Property for the
benefit of the Grantee Property, all as more particularly set forth below; and
WHEREAS, Grantor has agreed to grant the aforesaid easements to Grantee upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the sum of TEN AND 00/1 00 DOLLARS
($10.00) and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as
follows:
I. Recitations: Certain Definitions. The foregoing recitations are true and correct
and are incorporated herein by this reference. As used herein, the following terms shall have the
following meanings:
(a) "Drainage Easement Area" will mean those certain portions of the New
Park Property more particularly described on Exhibit "c" attached hereto and made a part hereof
that, from time to time, contain Drainage Facilities, including any relocation of Drainage
Facilities.
(b) "Drainace FacilitiesH will mean any swale, exfiltration trenches, inlets,
outfalls, drainage pipes or other systems facilitating on-site or off-site surface and underground
water drainage now or hereafter located within the New Park Property, including any relocation
or reconfiguring of the same; provided "Drainage Facilities" shall specifically exclude retention
areas.
(c) "Easement Area" will mean, collectively, the Drainage Easement Area and
Utility Easement Area.
(d) "Legal Requirements" will mean any and all applicable federal, state,
county and municipal laws, ordinances, regulations, codes, rules or orders including without
limitation, requirements relating to minimum environmental protection, land use, and zoning
laws and regulations.
(e) "Utility Easement Area" will mean that certain portion of the New Park
Property more particularly described on Exhibit "D" attached hereto and made a part hereof.
2. Grant of Easement. Grantor hereby grants and conveys to and establishes for the
benefit of Grantee and its successors and assigns and for the benefit of the Grantee Property the
following easements upon, over and through the New Park Property:
( a) Drainage. A non-exclusive, perpetual easement for the drainage and
flowage of surface and underground stormwater runoff originating from any portion of the
Grantee Property over, on, under, through and across the Drainage Easement Area as now
existing or hereafter located and a non-exclusive, perpetual easement for the purpose of
construction, installation, operation, maintenance, connection, repair, relocation and removal of
Drainage Facilities over the Drainage Easement Area, provided, however the easements granted
pursuant to this Section 2(a) shall not unreasonably interfere with or otherwise unreasonably
restrict the use of the New Park Property as a public park and for all purposes accessory and
incidental thereto and provided, further, that this easement shall not permit any substantial
increase in the amount of surface and underground stormwater runoff draining, retaining or
detaining in the Drainage Easement Area from that currently existing or permitted by Legal
Requirements. In the event that it is specifically required under an established policy of general
applicability pursuant to any comprehensive plan adopted pursuant to Chapter 163, Florida
Statutes, local governmental ordinance or resolution, state statute or by adopted rule of any
regional or state regulatory agency that the Drainage Facilities, as now existing or hereafter
located, provide surface water drainage capacity or service for any or all of those certain
properties located in Broward County, Florida adjoining the Grantee Property which properties
are now owned by Grantee (the "Other Properties"), then, in such event, the easement rights
granted in this Section 2(a) shall further benefit the Other Properties any provision herein to the
contrary notwithstanding. Notwithstanding any provision in this Agreement to the contrary,
Grantor shall have the right, at Grantor's cost, to relocate the Drainage Facilities to such other
locations in the New Park Property, so long as (i) Grantor completes such relocation
expeditiously and in compliance with applicable Legal Requirements and (ii) the relocated
Drainage Facilities continue to provide equivalent or greater function and capacity; provided
that. Grantor, at Grantor's sole cost and with the cooperation of Grantee, shall first obtain any
governmental permits and approvals necessary to so relocate the Drainage Facilities. Grantor
2
agrees to furnish copies of the plans for its improvements to the New Park Property to Grantee
within a reasonable period of time prior to commencement of construction and to cooperate with
Grantee in making changes to such plans as may be reasonably requested by Grantee in order to
better accommodate the Drainage Facilities so long as such changes do not unreasonably
interfere with Grantor's development and use of the New Park Property for its intended purpose
and Grantee agrees to pay the additional cost, if any, caused by its requested changes; and
(b) Utilities. A non-exclusive, perpetual easement for the purpose of
construction, installation, operation, maintenance, connection, repair, relocation and removal of
water and sewer, electricity, telephone, natural gas and telecommunication cables and facilities
(the "Utilities"), over, on, upon, across, under and through the Utility Easement Area.
3. Infrastructure Work. In the event that Grantee exercises its rights granted
hereunder for any construction, installation, operation, maintenance, repair or replacement of
improvements and facilities on the Easement Area for the use and benefit of the Easement Area
for the purposes herein provided (such improvements and facilities being referred to herein as the
"Infrastructure" and such construction, installation, operation, maintenance, repair or
replacement of the Infrastructure being referred to herein as the "Infrastructure Work"), then the
Infrastructure Work shall be subject to the following conditions:
(a) Cost. The costs of any Infrastructure Work shall be borne solely and
exclusively by the Grantee;
(b) Compliance. All Infrastructure Work shall be performed in compliance
with Legal Requirements;
(c) No Interference. No Infrastructure Work shall unreasonably interfere with
or otherwise unreasonably restrict the use of the New Park Property as a public park and for all
purposes accessory and incidental thereto.
(d) Restoration. Upon completion of any Infrastructure Work or portions
thereof and sooner if reasonably practicable, the Grantee shall, at its sole cost and expense,
repair, restore, and/or replace, as applicable, those portions of the New Park Property and any
improvements thereon affected by said work to no less than their condition and appearance prior
to said work; and
(e) Liens. Grantee hereby represents, warrants and covenants to the Grantor
that the New Park Property shall be at all times free and clear of all liens, claims and
encumbrances created by or through Grantee in connection with the Infrastructure Work. If any
lien or notice of lien shall be filed against the fee simple title of the New Park Property created
by or through Grantee, the Grantee shall promptly cause the same to be discharged of record by
payment, deposit, bond, or order of a court of competent jurisdiction.
4. Term of Easement. The easements described herein shall commence on the date
hereof and shall be for a perpetual tenn.
5. Maintenance. Grantee shall, at its expense, maintain the Easement Area and any
and all Infrastructure Work constructed thereon in good condition and state of repair and in
3
..,.. ..~
accordance with all Legal Requirements. Grantee shall be solely responsible for and promptly
perform at its cost and expense all repairs, replacements or restoration related to damages to the
New Park Property caused by the acts or omissions of Grantee, its employees, agents,
contractors, and invitees.
6. Indemnity. To the maximum extent permitted under applicable law, Grantee
hereby agrees to indemnify, defend (through attorneys reasonably acceptable to Grantor) and
hold harmless Grantor its elected officials, employees, agents, successors and assigns from and
against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable
attorneys' fees actually incurred) which may at any time hereafter be asserted against or suffered
by Grantor arising out of or resulting from any and all liability relating in any way to Grantee's
exercise of its rights hereunder including, but not limited to, the performance of any
Infrastructure Work performed by Grantee its employees, agents, contractors, and invitees,
except only to the extent caused by Grantor, its employees, agents, contractors or invitees.
7, Enforcement. In the event of a breach of any of the covenants or agreements set
forth in this Agreement, the parties shall be entitled to any and all remedies available at law or in
equity, including, but not limited to, the equitable remedies of specific performance or
mandatory or prohibitory injunction issued by a court of appropriate jurisdiction. The parties
hereto agree that in the event it becomes necessary for Grantor or Grantee to defend or institute
legal proceedings as a result of the failure of the other party to comply with the terms, covenants,
agreements and/or conditions of this Agreement, it is understood and agreed that the prevailing
party in such litigation shall be entitled to be reimbursed from the defaulting party for all costs
incurred or expended in connection therewith, including, but not limited to, reasonable attorneys'
fees (including appellate fees) and court costs.
8. Binding Effect. The covenants contained in this Agreement are not personal, but
shall run with the land and shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors and assigns,
9. Appurtenant Easement. The Grantee Property is adjacent to the New Park
Property, and the easements herein granted are for the benefit of the Grantee Property and
therefore are appurtenant thereto and shall run with the land.
10. Amendment. This Agreement may not be modified, amended or terminated
without the prior written approval of the then owners of the land who are benefited or burdened
by the provisions of any amendment to this Agreement.
II. Waiver. No waiver of any of the provisions of this Agreement shall be effective
unless it is in writing, signed by the party against whom it is asserted, and any such written
waiver shall only be applicable to the specific instance to which it relates and shall not be
deemed to be a continuing or future waiver.
12. Captions. The captions and paragraph headings contained in this Agreement are
for convenience and reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement, nor the intent of any provision hereof.
4
"T-' ,.~ T
13. Counteroarts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which, when taken together, shall constitute
one and the same Agreement.
14. Notices. Any and all notices authorized or required hereunder shall be in writing
and shall be deemed to have been duly given when delivered by hand or three (3) business days
after deposit in the United States mail, by certified or registered mail, return receipt requested,
postage prepaid, and addressed as follows, or to such other address as either party shall from
time to time designate to the other in writing, or, in the absence of such designation (e.g., a new
owner who fails to notify the other parties), to the person and address shown on the then current
real property tax rolls of Miami-Dade County, Florida, to wit:
If Grantor:
City of A ventura
19200 West Country Club Drive
Aventura, Florida 33180
Attention: Eric M. Soroka, City Manager
With a copy to:
City of A ventura
19200 West Country Club Drive
A ventura, Florida 33180
Attention: City Attorney
If to Grantee:
Gulfstream Park Racing Association, Inc.
901 South Federal Highway
Hallandale, Florida 33009
Attention: Scott Savin, President
With a copy to:
Magna Entertainment Corp.
285 West Huntington Drive
Arcadia, California 91007
Attn: Scott Daruty, Esq.
IS. Severability. In the event any term or provision of this Agreement is detennined
by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given
its nearest legal meaning or be construed as deleted as such authority determines, and the
remainder of this Agreement shall be construed in full force and effect.
16. Entire Agreement. This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements,
understandings and arrangements both oral and written, between the parties with respect thereto.
17. Associations. Grantee shall have the right to assign its interest in this Agreement,
whether in whole or in part, to a property owners association or associations which may, from
time to time, be established for the governance of all or any portion or portions of the Grantee
Property (individually, an "Association" and, collectively, the "Associations") and thereby be
released from any further obligations hereunder, provided that any such assignment is
accomplished by a duly authorized instrument executed by Grantor, properly witnessed and
acknowledged, and recorded in the Public Records of Miami-Dade County, Florida, and
5
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provided further that such Association and/or Associations, as applicable, assumes, in writing,
the obligations of Grantee hereunder.
18. Insurance.
(a) Prior to Grantee's entry onto any Easement Area or prior to
commencement of any Infrastructure Work, Grantee shall be required to obtain and maintain the
following insurance with respect to such Easement Area. Grantee shall carry and maintain, at its
own cost and expense, the following insurance: (i) if applicable, "All Risk" property insurance;
(ii) commercial general liability insurance with a minimum limit of liability of $5,000,000
combined single limit for bodily injury or death/property damage arising out of anyone
occurrence; (iii) Workers' Compensation Insurance as required by law; and (iv) automobile
liability insurance covering all owned, hired, and non-owned vehicles in use by Grantee, its
employees and agents with minimum limits of $2,000,000 combined single limit for bodily
injury or death/property damage arising out of anyone occurrenCe.
(b) Grantee will name the Grantor as an additional insured under its
commercial general liability policy and automobile liability insurance policy required to be
obtained. Grantee will require its insurance company to give at least thirty (30) days prior written
notice of termination, cancellation, non-renewal, or material alteration of the policy to the
Grantor, except for termination or cancellation for non-payment of premium, which notice will
be ten (10) days.
(c) Certificates of insurance for each insurance policy required to be obtained
by Grantee in compliance with this Section 18, along with written evidence of payment of
required premiums shall be filed and maintained with Grantor upon execution of this Agreement
by Grantee and annually during the term of the Agreement. Grantee shall immediately advise
Grantor of any claim or litigation that may result in liability to Grantor.
(d) All insurance required to be obtained shall be effected under valid and
enforceable policies, insured by insurers licensed to do business by the State of Florida and shall
he rated A+ or better by A.M. Best Company.
(e) Grantee shall require that each and every one of its contractors and their
subcontractors who perform work on the Easement Area to carry, in full force and effect,
workers' compensation, comprehensive public liability and automobile liability insurance
coverages of the type which Grantee is required to obtain under the terms of .this Section 18 with
appropriate limits of insurance.
(I) The foregoing insurance requirements shall not relieve or limit the liability
of Grantee. Grantor does not in any way represent that the types and amounts of insurance
required hereunder are sufficient or adequate to protect Grantee's interest or liabilities, hut are
merely minimum requirements established by the Grantor. Grantor reserves the right to require
any other reasonable insurance coverages that Grantor deems reasonably necessary depending
upon the risk of loss and exposure to liability in the context of Grantee's USe of the Easement
Areas pursuant to this Agreement. Grantee agrees to indemnify and save harmless Grantor from
6
and against the payment of any deductible and from the payment of any premium on any
insurance policy required to be furnished by this Agreement.
(g) Once every five (5) years during the term of this Agreement, Grantor may
review the insurance coverages to be carried by Grantee. If Grantor determines that higher limits
of coverage are necessary to protect the interests of Grantor, Grantee shall be so notified and
shall obtain the additional limits of insurance, at its sole cost and expense.
19. No Waiver of Police Power. Grantor 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 Grantee's Property, the
Infrastructure Work, the Easement Areas and any other exercise of Grantee of its rights
hereunder. Nothing in this Agreement shall be deemed to create an affirmative duty of Grantor 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.
20. As-Is. Grantee accepts the Easement Areas in the condition existing as of the date
of execution of this Agreement. Grantor makes no representation or warranty with respect to the
condition of the Easement Areas and Grantor shall not be liable for any latent or patent defect in
the Easement Areas. Grantor shall not at any time be liable for injury or damage occurring to any
person or property from any cause whatsoever arising out of Grantee's exercise of its rights
hereunder, except and only to the extent caused by Grantor, its employees, agents, contractors or
invitees.
21. Third Party Beneficiaries. Neither Grantor nor Grantee intend 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 either of them based upon this Agreement.
22. No Waiver of Sovereign Immunitv. The Grantor does not waive any rights of
sovereign immunity that it has under applicable law.
23. GOVERNING LAW. WAIVER OF JURY TRIAL. THIS AGREEMENT
SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE. THE
PARTIES AGREE THAT VENUE FOR AND LEGAL ACTION INSTITUTED IN
CONNECTION WITH THIS AGREEMENT SHALL BE IN MIAMI-DADE COUNTY,
FLORIDA. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY
MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR
ARISING our OF THIS AGREEMENT.
24. Rights Reserved. The easement rights granted herein are non-exclusive in nature
and are subject to all matters of record without reimposing same. Grantor shall have the right to
7
use, and construct improvements in, the Easement Area for public park purposes and for all
purposes accessory and incidental thereto. The Grantor is the Owner of the' Easement Area, has
full power and authority to grant the easements herein granted and Grantee shall enjoy the use of
the easements for the purposes set fOlih herein.
[signatures of parties follow on next page]
8
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this ~
day of , 2006.
Witnesses:
GRANTEE:
GULFSTREAM PARK RACING
ASSOCIATION, INC., a Florida
corporation
By:
Name:
Title:
Print Name:
Print Name:
Date:
,2006
STATE OF
)
)SS:
)
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
, 2006 by as of GULFSTREAM PARK
RACING ASSOCIATION, INC., a Florida corporation. He/she/they personally appeared before
me, is/are personally known to me or produced as
identification.
[NOTARY SEAL)
Notary:
Print Name:
Notary Public, State of
My commission expires:
[signature of Grantor to follow on next page]
9
~---r- -,.
GRANTOR:
Attest:
CITY OF A VENTURA, a Florida
municipal corporation
By:
Teresa M. Soroka, CMC City Clerk Eric M. Soroka
City Manager
Date: , 2006
Approved as to legal form and sufficiency:
By:
City Attorney
STATE OF
)
)SS:
)
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
, 2006 by Eric M. Soroka as City Manager of CITY OF A VENTURA, a
Florida municipal corporation. He/she/they personally appeared before me, is/are personally
known to me or produced as identification.
[NOTARY SEAL)
Notary:
Print Name:
Notary Public, State of
My commission expires:
10
EXHIBIT "A"
NEW PARK PROPERTY
EXHIBIT "B"
GRANTEE PROPERTY
EXHIBIT "c"
DRAINAGE EASEMENT AREA
EXHIBIT "D"
UTILITY ESAEMENT AREA
SCALE 1", 500'
EXHIBIT 'G'
GULFSTREAM PARK
BROWARD COUNTY
x
III CahIll, Glo. I " All. I ...... KEY MAP ....... PROJECTHo ""E!
~ III!- . .., ....... 1"=500' 04-2824
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'Ii ; 1800 Iller Drive_ Sui... 100 .." "",...
li For\ L.ud.nIaI., PIorld. 3331.
, Phon.: 864..1.7'781 Fax 864."1.180'1 GULFSTREAM PARK
, C.,urlc.tAiI 01 AUlhorl..Uon 0'7111 05-02-06 """ '"
-r'" T
EXHIBIT C
LAND DESCRIPTION
GULFSTREAM PARK
BROW ARD COUNTY PORTION LESS VILLAGES AT GULFSTREAM
PARCEL 1 (FEE SIMPLE ESTATE)
The East 180.6 feet of Lot 1, Block 7; LESS the North 75 feet thereof for State Road
Right-of-Way;
The South 300.0 feet of Lot 1, Block 7; LESS the East 180.6 fel-1 thereof; and also less
the West 33.23 feet thereof; Lot 4, Block 7, less the North 25.00 feet of the West 33.23
feet thereof;
Lots 3 and 4, Block 8;
Lots 1, 2, 3 and 4, Block 9;
Lots 1, 2, 3 and 4, Block 10;
Lots 1, 2, 3 and 4, Block 15;
Lots 1, Z, 3 and 4, Block 16;
All of the Subdivision in Section 27, Township 51 South, Range 42 East, according to the
Plat of TOWN OF HALLANDALE (MAP OF TIlE TOWN OF HALLANDALE),
according to the Plat thereof, as recorded in Plat Book B, Page 13, Public RccQrds of
Dade County, Florida, now being a part of Bra ward County, Florida.
LESS AND EXCEPT from all the above those portions lying West of the East right-of-
way of Federal Highway (U.s. No.1), said East right-of-way line being described as
follows: Beginning at the intersection of the North line of said Lot 2, Block 10, with a
line that lies 90.00 feet East of and parallel with the West line of the Southeast One-
Quarter (S.E. Y.i) of said Section 27; thence Southerly along said parallel line a distance of
1869.97 feet to the point of curvature of a curve concave to the West and having a radius
of 3909.83 feet; thence Southerly along said curve through a central angle of 12 degrees
03 minutes 38 seconds for an arc distance of 823.01 feet to a point of terminus on the
South line of the Southeast One Quarter (S.E.V.) of said Section 27, Township 51 South,
Range 42 East, Broward County, Florida.
Portions of the Plat of TOWN OF HALLENDALE (MAP OF THE TOWN OF
HALLAl'.'DALE), according to the Plat thereof, as recorded in Plat Book B, Page 13,
Public Records ofMiami~Dade County (Broward County), Florida, now being a portion
of Broward County, Florida, as reflected in the legal description set forth above were
replatted by the following plats:
HALLANDALE PARK NO. 12 PART 2, recorded in Plat Book 10, Page 17, Public
Records of Miami-Dade County, Florida, now being a portion of Broward County,
Florida.
B) HALLANDALE PARK NO. 12 REVISED (RIVIERA) SECTIONS, recorded in Plat
Book 10, Page 18, Public Records of Miami-Dade COUllty (Brow-ard County), Florida.
now being a portion of Broward County, Florida.
~8y,
CALVIN. GIORDANO AND ASSOClA TF..8, INC.
1800 Ella Drive. Suik: 600
Fort U1udml"lc, Ftorid~ 3.33 16
Al'ril 2S. 2006
P:\P:rn)robi:\10041l142824 Gu1f:dream\SlJRVEY\Legal DC.'Jcription!j.\rmlfiliml.m~Browardportion Jess Vi1la~.doc
Sheet 1 005 Sheets
EXRIRIT G
C) GOLDEN ISLES BOULEVARD ANNEX BENCH (BEACH) SECTION, recorded in
Pial Book 12, Page 46, Public Records of Miami-Dade County (Broward County),
Florida, now being a portion ofBroward Counly, Florida.
AND
All of the subdivisions of HOLLYDALE PARK, according to the Plat thereof, as
recorded in Plal Book II ,Page 2, Public Records ofBroward County, Florida.
LESS AND EXCEPT THEREFROM all of Hibiscus Street as ShO~~l Oil said
HOLLYDALE PARK, aIkIathe North 25 feet of the Southwest One Quarter (S.W.v.) of
the Southwest One Quarter (S.W.Y.) of the Northeast One Quarter (N.E.I/4) of Section
27, Township 51 South, Range 42 East, Broward County, Florida.
ALSO EXCEPTING THEREFROM all that portion of said Hollydale Park lying West of
a line 90.00 feet East of and parallel with the West line of the Southwest One Quarter
(S.W.114) of the Southwest One Quarter (S.W.l/4) of the Northeast One Quarter
(N.E.l!4) ofScction 27, Township 51 South, Range 42 East, Broward County, Florida.
AND
The West One Half (W.li2) of the Southwest One Quarter (S.W.l/4) of the Northwest
One Quarter (N.W.l/4) of the Southwest One Quarter ($.W.1/4) and lhe West One Half
(W.lfl) of the Northwest One Quarter (N.W.114) of the Southwest One Quarter
(S.W.I/4) of the Southwest One Quarter (S.W.l/4) of Section 26, Township 51 South.
Range 42 East, Broward County, Florida.
ALSO LESS ^,"D EXCEPT THEREFROM all of the above description property
conveyed by the Deed to the Slate of Florida for use and benefit of the Slate of Florida
Department of Transportation as set forth in the Deed recorded in Official Records Book
13597, Page 886, Puhlic Records ofBroward County, Florida, described as follows: That
part of Lots 2 and 3, Block 15, TOWN OF HALLANDALE, acenrding 10 the Plat
thereo( as recorded in Plat Book B, Page 13, Public Records in Broward County (Dade
County), Florida, said part being more particularly described as follows: Commence at
the Northeast comer of the Southeast Quarter of Section 27, Township 51 South, Range
42 East; thence South 87 degrees 07 minutes 18 seconds West along the North line of
said Southeast Quarter of Section 27, a distance of 2665.11 feet to the Northwest comer
of said Southeast Quarter of Section 27; thence South 02 degrees 52 minutes 00 seconds
East along the West line of the East Half of said Section 27, a distance of 1869.97 feet;
thence North 87 degrees 08 minutes 00 seconds East, a distance of 94.5 feet; thence
South 02 degrees 52 minutes 00 seconds East, a distance of 4.32 feet to the POINT OF
BEGINNING; thence continue South 02 degrees 52 minutes 00 seconds East, a distaDJ::e
of 32.91 feet to the beginning uf a curve concave Westerly, having a radius of 3743.00
feet and a churd bearing of South 00 degrees 21 minutes 43 seconds East; thence run
Southerly along the arc of said eurve Ibrough a central angle of S degrees 00 miuutes 3S
...........,"".
CALV IN, QIORDANQ ANt) ASSOCLATES.lNC
1800 Bll<< Drive, $oite 6iQQ
Fort L.audm1ak. FlQtida J-3316
Avri12S. ztJ06
?:\?rojecu\2004\041S:2-4 GlJlfstfeam\SURVE''t\t.ega1 Descriptiottfl\Crut(f.tre-4Jtl~nroward potlltm less Villages.doc
Sheet 2 of15 Sheets
EXHIBIT G
seconds, a distance of 327.27 feet; thence South 6 degrees 49 minutes 12 seconds West, a
distance of99.85 feel to a point on the existing Easterly riglll~f'way hne of State Rmld 5
and the beginning ofa curve concave to the West, said curve having a radius of 3819.83
feet and a chord bearing of North I degree 32 minutes 43 seconds Ea.~t; thence Northerly
along the arc of said curve a distance of 318.44 feet through a central angle of 4 degrees
46 minutes 35 seconds to the end of said curve; thence along the South line of said Lot 3,
Block 15, North 87 degrees 02 minutes 19 seconds East a distance of2.11 feet; thence
continue along said existing Easterly rlghH)f-way line North 2 degrees 52 minutes 00
seconds West, a distance of 140.79 feet; tbence leaving said existing Easterly righl-of.
way line run North 87 degrees 08 rainules 00 seconds East a distance of 450 feet to the
POINT OF BEGIJ'.<"NING.
ALSO LESS AND EXCEPT THEREFROM all of the ahove described property
conveyed to the State of Florida tor the use and benefit of the State of Florida Department
ofTransportalion as set forth in the Deed reeorded in Oillcial Records Book 15493, Page
113, Public Records of Broward County, Florida, described as follows: That part of Lots
I () and 11, Block 2, of BOLL YDALE PARK, according to the Plat th"reof, as recorded
in Pial Book I I, Page 2, Publie Records ofBroward County, Florida, and that part of a 25
1001 abandoned and vacated road as shown on said Plat of Hollydalc Park and that part of
Lot 2, Block to, of the TOWN OF HALLANOALE, according to the Plat thereof, as
rt.'Qordcd in Plat Book B, Page 13, Public Records in Dade County, Florida, said part
being more particularly described as follows:
Commence at the Southwest c.orner of the Northwest Quarter in Section 27, Township 5\
South, Range 42 East; thence North 87 degrees 07 minutes 28 sL'Conds East, along the
Quarter Section line of said Sectkm 27 a distance of 2655.87 feel to the baseline of
survey for State Road 5; thence Nortb 02 degrees 52 minules 00 seconds Wesl, a distance
of 62.77 feet; thence North 87 degrees 08 minutes 00 seconds East, a distance of 90.00
feet to the Easterly existing right-of-way for Stale Road 5 and the POINT OF
BEGINNING; thence South 67 degrees 58 minutes 47 seconds East, a distance of23.16;
thence North 87 degrees 07 minutes 18 seconds Easl, a dislanee of 10.97 feet; thence
Sout.h 02 degrees 52 minutes 42 seconds Easl, a distance of J 06.00 feet; thenee South 42
degrees 07 minutes 39 seconds West, a distance of 38.89 feet; Ihence South 02 degrees
52 minutes 00 seconds East, a distance of 200.25 feet; thence South 00 degrees 56
minules 51 seconds West, a distance of 67.65 feet; thence North 02 degrees 52 minutes
00 seconds West, a dL<rtance of 41 \.00 feet to the POINT OF BEGINNING; and that part
of Lots J and 2 in Block I of HOLL YDALE PARK, according to the Plat thereof, as
recorded in Plat Book II, Page 2, of the Public Records in BrowMd County, Florida. said
part being more particularly described as foHows: Commence at the Southwest comer of
Ihe Northwest Quarter in Section 27, Township 51 South, Range 42 East; thence North
87 degrees 07 minutes 28 seconds East, a distance of 2655.87 reet to the baseline of
Survey for Slate Road 5; thenee North 02 degrees 52 minutes 00 seconds West, a distance
of 618AI feet; thence South 87 degrees 08 minutes 00 seconds East., a distance of 90.00
feet to the POINT OF BEGINNING; thence North 32 degrees 50 minutes 45 seconds
Pre:paredBy:
CAl VL~. GIORDANO AND ASSOCIA YES, tNC.
1800 Ener Drive. Suile(,oo
Fort Lautk!rdalc. Fkrida 33316
1IpO'i12S,2O()(i
P:\.Prn;)ed$\2()04V}42S24 Gut&t!ca.Tfi\SURVEY\~sal1)(scriptioo$\Cul[;treafli..-Rrolo\-atd PQrtion Jess Vilfugesdoc
Sheet 3 ofl5 Sheets
------r --
EXHIBIT G
East a distance of 40.03 feet; thence South 87 dcgrees 12 minutes 47 seconds West, a
distance of23.36 feet to the Easterly existing right-of-way for State Road 5; thence South
02 degrees 52 minutes 00 seconds East, a distance of 3253 feet to the POINT OF
BEGINNING.
LESS THEREFROM THE FOLLOWING DESCRIBED PARCEL:
A portion of Lots 1,3 and 4, Block 7, Lots I through 4, Block 10, and Lots I through 3,
Block 15 all in MAP OF THE TO\VN OF HALLANDALE, according (0 the plat thereof
as recorded in Plat Book B, Page 13 of the Public Records of Dade County, Florida, also
being portions of HALL AND ALE PARK. NO. 12, PART 2, according to the plat thereof
as recoded in Plat Book 10, Page 17, portions of HOLL YDALE PARK., according to the
plat thereof as recorded in Plat Book II, Page 2 and portions of HALLANDALE PARK.
NO. 12, according to the pial thereof as recorded in Plat Book 12, Page 35, the three (3)
previous plats being recorded in the Public Records of Broward County, Florida and
being particularly described as follows:
COMMENCING at the Southeast comer of Section 27, Township 51 South, Range 42
East, Broward County, Florida;
THENCE South. 88"OI'22~ West (basis of bearings) on the South line of said Section 27,
a distance of 2,093.59 feet to the POINT OF BEGINNING;
THENCE continue South 88001'22" West on said South Hnc ofSeclion 27, a disl;Ulce of
570.55 feel to the intersection with the East righl--of-way line of South Federal Highway
(U.S. 1) as shown on State of Florida Departmenl of Transportation Right-of-Way Maps
for State Road 5, Soclion 86010-2519, said point located on tlJe arc of a non-tangent
curve conc:lve to the West, whose radius point bears North 79045'42" West;
THENCE on said East right-of-way line of South FcdJ..'Tal Highway (U.S. 1) the following
sixteen courses and distances;
L Northerly on tlJe arc of said curve having a radius of 3,909.83 feel, through a
central angle of 05016'33", and an arc distance of 360.01 feet to a point of non-
tangency;
2. South 85"02'14" East, a distance of 0.85 feet;
3. North 07051'26" East, a distance of 99.85 feet to a point on the arc of a non-
tangent curve concave to the Wesl, whose radius point bears North 86049'11"
West;
Pre,mcod By:
CAt VIM, GIORDANO AND A.'-'!;(.)CJA ITS. INC
1800 Eller Drive. Suite 600
F....laodetdalc. FIorilh 31316
Aprit 2S, 2006
P;\Projccli\2004\042!24 Gul&llnmISURVEY,I..<g.lll<=ipIioo,lGulfl"""m-B""""Ill'O!1i<m .... Vm....d""
Sheet 4 of 15 Sheets
T
EXffiBIT C
4. Northerly on the arc of said curve having a radius of 3,743.00 feet, through a
central angle of 05000'35", and an arc distance of 327.27 feet to a point of
tangency;
5. North 01049'46" West, a distance of32.91 feet;
6. South 88010'14" West, a dislance of 450 fe.(."l 10 a point on thc arc of a non-
tangent curve concave to the West, whose radius point bears South 88014'02"
West;
7. Northerly on the arc of saideorvc having a nulills of 3,909.83 feet, through a
central angle of 00903'48", an are distance of 432 feet to a point of tangency;
8. North 01 "49'46" We~i, a distance of] ,521.75 feCI;
9. North 02003'07" East, a distance of 67.65 feet;
10. North 01049'46" West, a distlll'lcc of200.25 feet;
11. North 43007'48" East, a distlll'lcc of38.89 feet;
12. North 01052'33" West, a distance of 106.00 feet;
13. South 88007'27" West, a dislance oflO.97 feet;
14. North 66056'55" West, a distance of23.16 feet;
15. North 01"50'08" West, a distance of555.82 feet;
16. North 33052'37" Easl, a distance of 40.03 feet to the intersection with the SOllth
right-of-way line of Hibiscus Street as shown on TIlE PROMENADE AT
HALLANDALE, according to the pial thereof as recorded in l'lal Book 112, Page
4 of the Public Records of Broward County, Florida;
THENCE North 88013'39" East on said South right-of-way line and its Easterly
projection, a distance of 594.33 reet
THENCE South 01046'21" East, a distance of 10.00 fcet;
THENCE North 88013'39" East, a distance of I 1 0.41 feet;
THENCE South 01006'17ft East, a distancc of29.83 feet;
P~B,c
CAtNIN. (UORDANO AND ASSOClA IT.:S. me
1 goo EDer Drive, Suite 600
fMt..aLil~e, Ffori.d.a 33316
Apri12S. 2006
P:\Projecf5.\2004\D42824 Gults,f:i;'t'am'SURVEY\Ltga1 DescrfptiWl$\(oolfitrC:'Mfi.~ portion ~ VfUilget.OOc:
Sheet 5 of 15 Sheets
EXHIBIT C
UIENCE Somh 01 "50'OS" East, a distance of 414.60 feet;
THENCE North 8800')'52" East, a distance of277.46 feet;
THENCE South 01~53'41" East, a distance of 1,205.42 feet to a point on the arc ofa non-
tangent curve concave to the Southeast, whose radius point bean; South 08025'32" East;
THENCE Southwesterly 011 the arc of said curve having a radius of 59.13 feet, through a
central angle of 81 041'52", an arc distance of 84.3 J feet to a point oftangency;
THENCE South 00"07'24" East, a distance of 34.90 feet;
ffiENCE South 88009'52" West, a distance of 170.01 feet;
THENCE South 01050'08" East, a distance of 226.96 feet to a point on the arc of a 110n-
tangent curve concave to the East, whose radius point bears South 12035'36" East;
THENCE Southerly on the arc of said curve having a radius of 116.08 feet, through a
central angle of 158029'04", and an arc distance of 321.09 feet to a point of non-
tangency;
THENCE South 01050'08" East, a distance of 315.49 feet;
THENCE South 88009'52" West, a distance of 1 03.71 feet;
THENCE South 43009'52" ,Vest, a distance of276.44 feet;
THENCE South 01"50'08" East, a distance of 618.62 feet to the POINT OF
BEGiNNING;
Said lands lying in the City of Hallandale Beach, Broward County, Florida and
containing a total net area of 153.632 acres, more or less.
NOTES:
1. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper.
~Bl.
CALVIN. GIORDANO AND ASSOCIATES.JNc.
1 goo liller()rj-o.;e, Suite (00
Filii Lnuiler<lal" Florida 3331"
April 18, 2006
f:\I'TQ'Je<::t$\2()()4\,()4;~82A Oulf$tTeam\$UR\t'(Y\Lcg:al De$criptionsIGuU'>lresm-Rmward pOOlOTI lcsl\. Vitl:age>.d(l(
Sheet 6 of 15 Sheets
T - T
EXIIIBIT G
2. Lands described hereon were not abstracted, by the surveyor, for ownership,
easements, rights-of-way or other instruments that may appear in the Public
Records of Broward County.
3. The description contained herein was prepared from infonnation provided by the
client.
4. The dcscription contained herein does not represent a field Boundary Survey.
2:::2/D:dr
Proparod By:
CIILVfN. GIORDANQ IIND ASSOCIATES, INC.
11!OOEIlcrDrivc,SuiItOOO
Pm lJtUdmialt.. Rmda: 31316
Apnl 28, 2006
P;\Proj<ctsUOO4\042S24 G1>1l_llliSURVCnLegaI Dcwiplio,,,IGwf",,,,,,,,-llr<lwW\X>fl"'" "'.. Villas"'..""
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EXHIBIT H
LAND DESCRIPTION
MO TRACT LESS PARK
GULFSTREAM PARK
CITY OF.A VENTURA, ~1IAMI.DADE COUNTY, FLORIDA
Portions of Tract A and Tract S, DONN ACRES, according to the plat thereof as recorded
in Plat Book 76, Page 30 of the Public Records of Miami-Dade County, Florida, being
more particularly described as follows:
BEGINNING at the Northeast corner of said Tract B ami the Northeast comer of Section
34, TOM1Ship 51 South, Range 42 East;
THENCE Soulb 02021'14" East on the East line ofaaid Tract Band Ibe East line of said
Section 34, a distance of 541 ,55 feet to Ibe Northeast comer of a parcel of land conveyed
!() the City of Avenma for highway purposes by Right-of-Way Deed recorded in Official
Records Book 17973, Page 3869 oftbe Public Records of Miami-Dade County, Florida:
THENCE on the North line of said ParceJ conveyed to the City of A ventura the following
three (3) courses and distances;
1. South 50"29' 14" West, a distance of 32.] 0 feet (31.83 feet by deed) to the
beginning of a tangent curve concave to the Northwest;
2. Southwesterly on the arc of said curve having a radius of 330.00 feet, through a
central angle of 37"32'07" (37"34'38" by deed), an arc distance of 216.19 feet
(216.43 feet by deed) to a point of tangency;
3. South 88.01 '22" West, a distance of 107.88 feet;
'mENCE North OJ "52'05" West, a distance of 523.58 feet;
THENCE South 88009'53" West. a distance of 581 ,87 feet;
TIlENCE South 01052'05" East, a distance of 525,02 feet to tbe intersection with the North
line of said Parcel ofland conveyed to lhe City of Aventura;
THENCE South 88001'22" West on said North line, a distance of 449,07 feet;
THENCE North 01058'38" West, a distance of 629.41 feet to intersection with the North
line of said Tract A and the North line of said Section 34;
"-"'dRy:
CALVIN, GIORDANO AND ASSOCIA TES,INe.
1 $00 Eller llnve, Suite 600
Fort Laud_te, _ Jm~
^pr.i128. 2OOt6
P:\Projecu'2001'lH219) Gtlfrstream PltkBounOItl)SUJVe'yofMiami r.>ade Pm-tion\SURVEY\LepI l>cseriptions\MO Tmt'~ Less Park
Are\-_ (!42706"d<<
Sbeet I of 3 Sheets
~KlnB1T II
THENCE North 8800] '22" East on said North line of Tract A and the North line of Section
34, a distance of 1,361.77 feet to the POINT OF BEGINNING;
Said lands lying in the City of Avenlllra, Miami-Dade County, Florida and containing
546,954 Square fect (12.556 acres) more or less.
NOTES:
I. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper.
2. Lands described hereon were not abstracted, by the surveyor, for o\',l1ership,
easements, rights-of-way or other instruments that may lippear in the Public
Records of Miami-Dade COllnly.
3. Bearings shown hereon are relative to the East line of Tract B, DONN ACRES, as
recorded in Plat Book 76, Page 30, Miami-Dade County Records, with said East
line having a bearing of South 02021'14" East.
4. The description contained herein and the attache<l sketch, do not represent a field
Bou~ry Survey.
I
Date: 6~( -ao
CAL
fgory J I
fessional
.. lorida Reg'
s
e r.and Mapper
. n Number LS 4479
Prepll!1>dBy:
CAt VlN. GIORDANO AND ASSOCIA TS. INC.
1800 Eller :I:>live, Suite tiOO
r'OTl LwdmloIc.. fIorid.l})16
April 2~,. 2C06
I"\Pmject>\200l'lllI219J G1l1~h..m Park !lolll1d.r)' Survey of Mj,ml Dade Porl1on'<iURVEYIL<gaI D"",nptim"MO TfilC' Less Park
Area. _ 0427l16.doc
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This Instrument prepared by
and should be returned to:
EXHIBIT
I
-
Janice L. Russell, Esq.
Akerman Senterfilt
28th floor
One SE Third Avenue
Miami, Florida 33131
ParcellD No.:
DECLARATION OF COVENANT
THIS DECLARATION OF COVENANT (this "Declaration"), made this _ day
of
,200_, by GULFSTREAM PARK RACING ASSOCIATION, INC., a
Florida corporation, with its main business office at 901 South Federal Highway,
Hallandale, Florida 33009 ("Declarant"), for the benefit of the CITY OF AVENTURA, a
municipal corporation chartered in accordance with the laws of the State of Florida, with
its offices at 19200 West Country Club Drive Aventura, Florida 33180, recites and
provides as follows:
WITNESSETH:
WHEREAS, Gulfstream is the owner of certain real property in the City of
Aventura, Miami-Dade County, Florida, as described in Exhibit "A" altached hereto
and made a part hereof (the "Gulfstream Aventura Property"); and
WHEREAS, Gulfstream has sold and conveyed to the City of Aventura of even
date herewith certain lands located adjacent to the Gulfstream Aventura Property to be
developed and used as a public park, as described in Exhibit "8" attached hereto and
made a part hereof (the "Park Lands"); and
WHEREAS, Gulfstream is the owner of the real property lying north of the
Gulfstream Aventura Property in the City of Hallandale Beach, Florida and described in
{M2398989;2}
.... 'T-- - T
Exhibit "e" attached hereto and made a part (the "Gulfstream Park Parcel"), which is
operated as a horse racing track with pari mutuel betting facilities, grandstands, barns,
and related ancillary improvements;
WHEREAS, Gulfstream owns the real property lying immediately adjacent to the
Gulfstrearn Park Parcel described in Exhibit "0" attached hereto and made a part
hereof (the "Hallandale Beach DRI Land"), which Gulfstream intends to development as
a mixed used retail, commercial and residential project.
WHEREAS, as part of the purchase and sale agreement entered into between
Gulfstream and the City of Aventura with respect to the Park Lands, Gulfstream has
agreed to execute and record this Declaration in the public records of Miami-Dade
County, Florida in order to permanently prohibit vehicular access (other than as may be
required by government for emergency vehicles) to and from Hallandale Beach DRI
Lands and the Gulfstream Park Parcel over, across and upon the Gulfstream Aventura
Property to N.E. 213th Street as hereinafter set forth; and
WHEREAS, Declarant intends that the City of Aventura be a direct, third-party
beneficiary to this Declaration; and
NOW, THEREFORE, in consideration of the declarations herein made and in
consideration of TEN DOLLARS ($10.00) in hand paid, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Declarant hereby subjects its interest in the Gulfstream Aventura Property to the
following:
1. Incorporation of Recitals: The foregoing recitals are incorporated herein
by reference and made a part hereof.
{M2398989;2}
2
-r . ~ ~.-
2. Vehicular Access Prohibition. Gulfstream hereby declares that vehicular
access (other than as may be required by government for emergency vehicles) from
N.E. 213th Street over, across and upon the Gulfstream Aventura Property to and from
the Hallandale Beach DRI Lands and the Gulfstream Park Parcel shall be permanently
prohibited on and after the date the first temporary certificate of occupancy is issued for
a residential building constructed on the Gulfstream Aventura Property, provided,
however, that until such access is permanently prohibited as set forth above, vehicular
access to the Gulfstream Park Parcel from N.E. 213th Street shall be permitted on an
interim basis subject to the following restrictions: (i) access by the public shall be
restricted to weekends and holidays on which horse racing events are scheduled at
Gulfstream Park, (ii) after the execution of a mutually acceptable construction phasing
plan, access on all other days shall be restricted to construction vehicles, provided that
such access shall be permitted only until such time as the construction of the
renovation and expansion of the improvements to the Clubhouse and and the Slot
Facilitiy Building now or hereafter located on the Gulfstream Park Parcel is completed,
and (iii) at no time shall vehicular access from N.E. 213th Street to the Hallandale Beach
DRI Land be permitted for any purpose (other than as may be required by the
government for emergency access).
3. Covenant Runninq with the Land: This Declaration shall constitute a
covenant running with the land on the Gulfstream Aventura Property and shall be
binding upon the successors-in-interest and assigns of the Declarant with respect to any
portion of the Gulfstream Aventura Property.
(M2398989;2)
3
4. Modification, Amendment, Release: This Declaration may only be
modified, amended or released by a recordable instrument executed by the then-current
owners of the Gulfstream Aventura Property (or, with respect to any portion of the
Property that is submitted to the condominium form of ownership, the condominium
association administering the affairs of such condominium) with the consent of the City
Manager of the City of Aventura following approval by the City Commission through
Resolution.
5. Severability: Invalidation of anyone or more of the covenants, restrictions
or provisions of this Declaration by judgment or court order shall in no manner affect
any other covenant, restriction or provision thereof, and such other covenants,
restrictions and provisions are hereby declared to be severable and shall remain in full
force and effect.
6. Recordinq. This Declaration of Covenant shall be recorded at Declarant's
expense in the Official Records of Miami Dade County, Florida within ten (10) days from
the date of execution hereof.
7. City's Riqht to Inspect Property. Declarant hereby acknowledges and
agrees that any official City inspector or duly authorized agent of the City has the right
to enter upon and inspect the use of the Gulfstream Aventura Property at any time
during normal working hours to determine whether or not Declarant is in compliance
with the conditions of this Declaration.
8. Term. This Declaration shall be binding on Declarant and all subsequent
owners of the Gulfstream Aventura Property for a period of thirty (30) years from the
(M2398989;2)
4
date this Declaration is recorded, after which time the Declaration shall be extended
automatically for successive periods of ten (10) years each.
9. Enforcement. This Declaration may be enforced by the City against the
Declarant and any party or person violating, or attempting to violate, any of the
covenants and restrictions contained herein. The City shall be entitled to revoke
permits, and pursue all code enforcement remedies against the Declarant and the
Gulfstream Aventura Property, including the filing of a notice of violation on the
Gulfstream Aventura Property and fines. The prevailing party in any action or suit
pertaining to or arising out of this Declaration shall be entitled to recover, in addition to
costs and disbursements allowed by law, reasonable attorneys' fees and costs as well
as attorneys' fees and cost incurred in enforcing this prevailing parties attorneys' fees
provision. This enforcement provision shall be in addition to any other remedies
available at law or in equity.
10. Authorization for Citv to Withhold Permits and Inspections. If the terms of
this Declaration are not being complied with, in addition to any other remedies available
at law or in equity, the City is hereby authorized to withhold any permits regarding the
Gulfstream Aventura Property or any portion thereof, and to refuse to make any
inspections or grant any approvals for the Gulfstream Aventura Property or any portion
thereof, until such time as the Declarant is in compliance with the covenants of this
Declaration.
11. Election of Remedies. All rights, remedies and privileges granted herein
shall be deemed to be cumulative and the exercise of anyone or more shall neither be
deemed to constitute an election of remedies, nor shall it preclude the party exercising
{M2398989;2)
5
.. ..,.... ~ T
the same from exercising such other additional rights, remedies or privileges. Declarant
or City shall be entitled to pursue all actions at law or in equity including, but not limited
to, injunctive relief.
[Intentionally short page; signatures only appear on following page]
(M2398969;2)
6
,._, -
,--- -.
IN WITNESS WHEREOF, this instrument is executed on the day and year first above
writte n.
WITNESSES:
DECLARANT:
Signed, sealed and delivered
in the presence of:
Name Signed
Gulfstream Park Racing Association, Inc.,
a Florida corporation
Name Printed
By:
Name:
Title:
Name Signed
Name Printed
Accepted for City of Aventura this
day of
,2006.
By:
City Manager
State of
)
)
)
County of
BEFORE ME, the undersigned authority, this _ day of
2006, personally appeared , as
, on behalf of Gulfstream Park Racing Association, Inc., a Florida
corporation, who is personally known to me and who executed the within Instrument in
his/her capacity as such.
(Notary Seal)
Notary Public, State of
My Commission Expires:
{MZ398989;Z}
7
EXHIBIT "An
GULFSTREAM AVENTURA PROPERTY
{M2398989;2}
8
EXHIBIT "B"
PARK LANDS
{M2398989:2}
9
T
EXHIBIT "Cn
GULFSTREAM PARK PARCEL
{M2398989;2)
10
EXHIBIT "0"
HALLANDALE BEACH DRI LAND
{M2398989;2}
11
-r- T
This instrument prepared by:
Record and return to:
EXHIBIT
T
Janice L. Russell
Akerman Senterfitt
2Sw floor
One SE Third Avenue
Miami, FL 33131
Tax Folio Identification Number:
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made and executed this _ day of
,2006, by GULF STREAM PARK RACING ASSOCIATION, INC., a Florida
corporation, (the "Grantor"), whose mailing address is 901 South Federal Highway, Hallandale,
Florida 33309 to the CITY OF A VENTURA, a Florida municipal corporation (the "Grantee"),
whosemailingaddressis2999N.E.19IstSt..Suite 500, A ventura, Florida 33180.
WIT N E SSE T H:
That Grantor, for and in consideration of the sum of Ten and Noll 00 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:
I. 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.
{M2365270;4 }
~.. .-
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, but not
otherwise.
As an express condition of the conveyance of the Property, Grantee covenants and agrees
that the Property shall be used solely as a public park and for all purposes accessory and
incidental thereto, except that no improvements (including landscaping) shall be installed on the
Property at any time which interferes with the view corridor and sightlines from the existing
Gulfstream Park clubhouse and grandstands to the racing chute located adjacent to the Property.
Grantee further agrees: (i) that any exterior lighting adjacent to the racing chute on the Seller's
Adjacent Property (the "Racing Chute"), shall be designed so that it does not spill over onto the
Racing Chute; and (ii) that the operation of any loudspeaker, public address system, or similar
device, such that sound therefrom creates an unreasonable noise disturbance across the real
property boundary adjacent to the Racing Chute, shall not be utilized during horse racing events
(which shall be limited to scheduled horse races and horse training at Gulfstream Park). In the
event that Grantee, its successors and/or assigns violates the foregoing restrictions, Grantor, its
successors and/or assigns shall be entitled to avail itself of all legal and equitable remedies
including, but not limited to, injunctive relief. The foregoing restriction shall constitute a
restrictive covenant concerning the use, enjoyment and title to the Property and shall constitute a
covenant running with said land and shall be binding upon all future owners of the Property for
the benefit of the Grantor, its successors and assigns.
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
executed as of the day and year first written above.
Witnesses:
GULFSTREAM PARK RACING
ASSOCIATION, INC., a Florida
corporation
Print Name:
By:
Name:
Title:
Print Name:
{M2365270;4 )
2
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this _ day of
, 2006 by , as of
GULF STREAM PARK RACING ASSOCIATION, INC., a Florida corporation, on behalf of the
corporation, who (check one) [ ] is personally known to me or [ ] has produced a
drivers license as identification.
[NOTARY SEAL)
Notary:
Print Name:
Notary Public, State of
My commission expires:
{M2365270;4 )
3
EXHIBIT .L
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that GULFSTREAM PARK RACING
ASSOCIAI'ION, INC., a Florida corporation ("Seller"), for and in consideration of the sum of
Ton and No/IOO Dollars ($10.00) lawful money of the United States, to it paid by the CITY OF
A VENTURA, a Florida municipal corporation ("Purchaser"), the receipt whereof is hereby
acknowledged, has granted, bargained, sold, transferred and delivered, and by these presents
does grant, bargain, sell, transfer and deliver unto the Purchaser, its successors and assigns, the
following goods and chattels:
All ofthe tangible personal property of Seller used in connection with and located
in, on or at the real property legally described on Exhibit "A" attached hereto, if
,my, (the "Real Property"), and all replacements thereof, including, but not limited
to, the' property listed on Exhibit "B" attached hereto,
TO IIA VE AND TO HOLD the same unto the Purchaser, its successors and assigns
ti.HC vcr.
AND Seller docs, ('or itself and its heirs, executors and administrators, covenant to and
with the Purchaser, its successors and assigns, that Seller is the lawful owner of the Personal
Property; that they are free from all encumbrances; that Seller has good right to sell the same
al'oresaid, ami that Seller will warrant and defend the sale of the Personal Property hereby made,
unto the Purchaser, its successors and assigns against the lawful claims and demands of all
pcrsons claiming hy, through or under Grantor, but not otherwise.
IN WITNESS WHEREOF, Seller has executed this Bell of Sale as of the day
or
\Vitncsses;
SELLER:
GULFSTREAM PARK RACING
ASSOCIATION, INC., a Florida corporation
By:
Name:
Title:
Print Name:
Print Name'
STATE OF I LORIUA
COUNTY OF MIAMI-DADE
)
)
)
88:
The loregoing instrument wus acknowledged before me this _ day of_, . by
, as of GULFSTREAM PARK RACING
ftl...~u I '., \,,~"v II
ASSOCIA TION, rNc., a Florida corporation, on behalf of the corporation who (check one)
[ J is personally known to me or [ ] has produced a drivers license as
idenli lication
My Commission Expir~s:
~I ",,-1l1"'~1"\.oJvII
Notary Public
Print Name:
EXHIBIT L
FORM OF SECTION 1445 CERTIFICATE
1",1 ,""I'~ ,H!\4'~1 ~
SECTION 1445 CERTIFICATE
COUNTY OF MIAMI.DADE
)
)
)
SS:
STATE OF j'LORIDA
IIEFORE MI:, the undersigned authority, personally appeared
("Aftian!") who being lirst duly sworn upon oath, deposes and says:
1. 'That the Affiant is President of GULFSTREAM PARK RACING
ASSOCIATION, INC.. a Florida corporation ("the Corporation").
" Thallhe Corporation is the owner offee simple title to the real property located in
Miami-Dade County, Florida, more particularly described on Exhibit "A" attached hereto and by
this rL'ferencl' made u part hereof ("Property").
:>. Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of a
U.S. real property interest must withhold tax if the transferor (seller) is a foreign person. To
inform the City of Aventura that withholding of tax is not required upon the disposition of a U.S.
real pmpcrty inlerest by the Corporation, Affiant hereby certifies the following:
:>.1 The Corporation is not a foreign person, foreign corporation, foreign
Corporation, foreign trust, or foreign estate for the purposes of U,S. income taxation (as those
terms are defmed in the Internal Revenue Code and Income Tax Regulations).
:>.2 The Corporation's taxpayer identification number is
1.3 The Corporation's address is
:\.4 Amant understands that this certification may be disclosed to the Internal
Revenue Service by the transleree and that any false statement contained herein could be
punished by line, imprisonment. or both.
I'URTHER AFFIANT SA YETH NAUGHT.
subscribed before me this _ day of by
, who (check one) ( ] is personally known to me or [ ] has
a drivers license as identification.
S worn to and
produced. _.______
My Commission Expires:
Notary Public
Print Name:
rll,'",~JI'I! ;,,,..~\",
EmmIT nl
FORM OF OWNER'S AFFIDAVIT
AFFIDAVIT
STATE OJ'
)
) SSe
)
COUNTY OF
BEFORE ME, the undersigned Notary Public, personally appeared
("Affiant"), as of GULFSTREAM PARK RACING
AS.'lOClATION: INC.." Florida corporation ("Owner"), to me well known to be the person
who made and subscribed to the following Affidavit as such officer, who, upon being first duly
sworn on oa1h deposed and said as follows to my actual knowledge on behalf of Owner:
I. Alliant has personal knowledge of the business and affairs of the Owner and of all
inl()rmaliol1 stated hereinafter. To best of Affiant's actual knowledge, the information set forth
herein is trlle. correct 3nd complete in all material respects. This Affidavit is being executed and
delivered by Affiant in his capacity as of Owner and not personally, and as
such, Affiam shall have no personal liability whatsoever for this Affidavit or the information set
t~)rth herein
") Owner is the record owner of fee simple title to the reaJ property situated 111
Miami-Dade C"unty, Fl06da, described on Exhibit "A" attached hereto (the "Property").
J. Owner is in exclusive possession of the Property and no other person or entity has
any right or daim to possession thereof other than:
4. There are no mechanic's liens under the Florida Construction Lien Law (Chapter
713, Florida Statutes) tiled against the Property. Owner has not caused any labor, materials or
sorvices (if any) for which a lien could be claimed against the Property pursuant to the Florida
('onSlruction Lien Law (Chapler 713, Florida Statutes) to be furnished, completed or in place not
less than ninety (90) days prior to the date of this affidavit, other than:
5. There have been and shall be no changes in title to the Property resulting from
actions by Owner from and lifter at _.m, being the effective date of that
catain Commitment Itl[ Title Insurance NO. (the "Title Commitment") issued by
Weiss Seww Helfman Pastoriza Ouedes Cole & Bonsike, P.^-, as agent, and First American
Title Insurance Company, as underwriter (collectively, the "Title Company"), which would give
rise to any lien or adversely atI'ect title to the Property between said date through the date of
recording of the deed from Owner transferring title to the City of Aventura, a Florida municipal
corporation ('.Buyer"') other than as indicated in the deed from Owner to Buyer conveying the
I'll "v" ',~, 1"~("'ll
Prurerly, and the Owner has not and will not execute any instrument that would adversely affect
title to or tfi.l.ll::iler of the Property from the Owner to Buyer.
6_ This Aff,davit is given on behalf of Owner in order to induce Title Company 10
issue Hn Owner's Policy of Title insurance pursuant to the Title Commitment and no other party
(Including without limitation the Purchaser of the Property) shall be entitled to rely hereon in any
mann~r whalsocveL
f'lIRTHER AFf'IANT SA YETH NAUGHT.
SWORN TO AND SUBSCRIBED before me this _ day of
_________ lie is personally known to me or produced
itknliticatinn.
by
as
Notary:
Print Name:
Notary Public, State of
My commission expires:
jll."..o: ;"l~l"~ '.11
EXHmIT N
FORM OF GENERAL ASSIGNMENT
nhl\"ll"l:~.l"~""ll
".''T'. ...- T
GENERAL ASSIGNMENT
THIS UENf:RAL ASSIGNMENT (the "Assigrunent") is made and entered into this day
by and between GULFSTREAM PARK RACING ASSOCIATION, fNC., a
Florida corporation (the "Assignor") and the CITY OF A VENTURA, a Florida municipa.I
corpormion (the" Assignee").
RECIT ALS
I. I)n the date hereof, Assignor has sold and conveyed to Assignee that certain real
property loc"ted in Miami-Dade Beach County, Florida, and more particularly described in
Exhibit "A" attached hereto and by this reference made a part hereof, pursuant to that certain
Purchase and Sale Agreement dated . ,between Assignor and Assignee (the
"j\greemen( I
.,
The Property is subject to the Intangible Property (as defined below).
:1. The Agreement provides that Assignor shall transfer to Assignee all of Assignor's
right. tilte "nd interest in and to the Intangible Property.
,1. Assignor desires to assign and convey to Assignee. and Assignee desires to
accept, all M Assignor's right. title and interest in and to the Intangibte Property pertaining to the
Propertv pursuant 10 Ihe terms and conditions of the Agreement
NO'll,. THEREFORE. for Ten Dollars ($10.00) and for other good and valuable
consideration. the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hert:by agr~t' as follows:
I. jl,ecitals. The foregoing Recitals are true and correct and are incorporated herein
by this reference.
~ Assignment and Acceotance. Assignor hereby sells, assigns, conveys, grants and
S<lS over unto Assignee all of Assignor's right, title and interest, if any, in and to any and all
intangible pr,'pert)' owned by Assignor and used solely in connection with and relating solely to
the ownership, use, development, operation, management, occupancy or maintenance of the
Property including. but not limited to, all consents, notices of completion, environmental and
utility permits and appcovals authorizations, variances, waivers, licenses, perm Us, certificates
and approvHls from any governmental authority or quasi-governmental authority issued or
granted with respect to the Property as well as all public and private contract rights and
development or usage rights of Assignor relating directly and solely to the Property (collectively,
the "tntangible Property"). if any. Assignor hereby warrants and represents to Assignee that the
Intangible Properly is conveyed by Assignor to Assignee free and clear of all liens,
encumbrance'i. and security interests whatsoever.
1 Successors and Assil:!ns. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
Jlj,>"-II',\~1W~',,11
__-y-o '.''''''''''___''__'''___Y-''___
4. AllPlicable Law. Tbis Assignment shall be governed by and construed under the
laws ol'lhe Slate of Florida.
IN WITNESS WHEREOF. Assignor and Assignee have caused this instrument to be
executed as 01' the day and year first above written.
Witnc",es:
ASSIGNOR:
GULFSTREAM PARK RACING
ASSOCIATION, INC., a Florida corporation
By:
Name:
Title:
Print ~onH.::
Print Name:
ASSIGNEE:
Attest:
CITY OF A VENTURA, a Florida municipal
corporation
By:
Teresa M. Soroka, CMC
City Clerk
Eric M. Soroka
City Manager
Approved as It) legal form
and sufficiency:
By
City Anomey
rll.",<!I~'l.1'JHyll
STATE 01, IU)RIDA
ss:
COllNTY 01 MIAMI-D/\DE
The lllr(;going instrumt.:nt was acknowledged before me this _ day of ~. _ _ by
______~._ __, as of GULFSTREAM PARK
RACINC, ASSOCIATION, INC., a f10rida corporation, on behalfoflhe corporation, who (check
one) I I is personally known to me or [ ] has produced a drivers license as
idcnti1icatinn.
My Commi"ion Expires:
Notary Public
Print Name:
STATE or' FL.ORlDA
SS:
COUNTY 01' MIAMI-DADe:
The lo,.c!,\oing Illstrument was acknowledged before me this day of
___nm__.____ . by ERIC M. SOROKA, as City Manager of the CITY OF
A VENTURA. " '-Inrida municipal corporation, on behalf of the corporation, who (check one) []
is personally known to me or [ ] has produced a drivers license as
iclentdication.
My Commission Expires:
Notary Public
Print Name:
f1'."...l!,.:"I'..I.-ll
This instrument prepared by and after
recording return to:
Lillian Arango de la Hoz, Esq.
Weiss Serota Helfman
Pastoriza Cole & Boniske, P .A.
2665 South Bayshore Drive
Suite 420
Miami, Florida 33133
EXHIBIT
n
CONSTRUCTION LICENSE AGREEMENT
THIS CONSTRUCTION LICENSE AGREEMENT (this" License Agreement") is
made this _ day of _, 2006, between GULFSTREAM PARK RACING
ASSOCIATION, INC., a Florida corporation, having an address at 901 South Federal Highway,
Hallandale, Florida 33009 (the "Licensor"), and the CITY OF A VENTURA, a Florida
municipal corporation, having an address at 19200 West Country Club Drive, Aventura, Florida
33180 (the "City").
RECITALS
I. Licensor is the owner of fee simple title to unimproved real property consisting of
approximately seven (7) acres located in the City of Aventura, Miami-Dade County, Florida, as
more particularly described in Exhibit "A" attached hereto and by this reference made a part
hereof (the "Park Parcel").
2. Licensor and City have simultaneously entered into a Purchase and Sale
Agreement for the Park Parcel (the "Purchase and Sale Agreement"), wherein the City will
acquire by purchase and donation from the Seller the Park Parcel for use as a municipal park.
3. The Purchase and Sale Agreement contains certain closing contingencies to be
met prior to Closing. In order to allow the City immediate access to the Park Parcel for
commencement of construction of its park improvements and facilities, prior to the Closing Date
set forth in the Purchase and Sale Agreement, Licensor has agreed to grant the City a license to
use the Park Parcel for the installation, construction, operation, and maintenance of municipal
park improvements and facilities, all as specifically described herein.
NOW, THEREFORE, in consideration of the sum of Ten and 00/1 00 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
I. Recitals. The Recitals set forth above are true and correct and are incorporated
herein by reference.
T'
2. Purpose and Intent. The parties acknowledge and agree that the purpose and
intent of this License Agreement is to provide a license to the City for the use of the Park Parcel
in connection with the development and construction of a municipal park on the Park Parcel and
all improvements and facilities accessory and incidental thereto.
3. Grant of License. Subject to the terms and conditions hereof and City's
fulfillment of its obligations hereunder, the Licensor hereby grants to the City, for the "Term" (as
defined below) the exclusive right, license and privilege to enter upon and use the Park Parcel for
the purpose of commencing construction activities and improvements to the park in the nature of
permitting, clearing, filling and demucking, and rights of access, including ingress and egress in,
over, and through the Park Parcel, with full rights to excavate, clear and fill the Park Parcel (the
"Permitted Purpose"). The City shall not use the Park Parcel for any purpose or use other than
the Permitted Purpose. The City's use of the Park Parcel for the Permitted Purpose shall be
exclusive in nature.
4. Term. The "Term" of this License Agreement shall be for six (6) months,
commencing the date of full execution of this License Agreement and the Purchase and Sale
Agreement (such date being the "Commencement Date"). The Term of this License Agreement
shall expire on the date which is the later to occur of (a) 12:00 a.m. (EST) on the day before the
6th month anniversary of the Commencement Date or (b) the date the Licensor terminates the
Purchase and Sale Agreement due to the City Commission's denial of Licensor's CUA
Application, as set forth in Section 11.4.3(b) of the Purchase and Sale Agreement. This License
Agreement shall automatically terminate upon the Closing of the Park Parcel pursuant to the
Purchase and Sale Agreement.
5. License Fees; Expenses and Taxes.
5.1 The license fee shall be the sum of Ten Dollars ($10.00) for the entire Term (the
"License Payment"), plus applicable sales taxes, if any. The License Payment shall be due upon
execution of this License Agreement.
5.2 It is understood and agreed by and between the parties hereto that the City shall
maintain in current status all federal, state, county and local licenses and permits, now or
hereafter, required for the installation and construction of the park improvements.
6. Improvements; Utilities; Access.
6.1 The City shall be permitted to develop the Park Parcel, and install and construct
improvements on the Park Parcel. All improvements to be constructed on the Park Parcel are
subject to all applicable permits and approvals from the City and must otherwise be constructed
in accordance with applicable government regulations. The City shall obtain, at its sole cost and
expense, any and all permits, consents and approvals from local, state or federal governmental
authorities as required to construct the improvements on the Park Parcel. Licensor agrees to
fully cooperate with the City in the attainment of all permits and approvals for the park
improvements, including the joinder or execution of any applications or instruments.
2
T
6.2 The City shall further have the right to install, maintain and operate within the
Park Parcel such utilities (including, without limitation, electricity) necessary to install, construct
and serve the park improvements thereto. From and after the Commencement Date until such
time as this License Agreement is terminated, the City shall pay when due any utility and other
expenses of any and all types whatsoever which are now or hereafter charged or assessed with
respect to its operations or improvements at the Park Parcel.
6.3 At all times during the Term of this Agreement, the City, at its sole cost and
expense, shall maintain, repair, replace and operate the Park Parcel and all improvements thereto
in a first class manner. The City's improvements to the Park Parcel shall remain the exclusive
property of the City; provided, however, that upon termination of the Purchase and Sale
Agreement pursuant to Section 11.4.3(b) therein and failure of the Park Parcel to Close due to
the City Commission's denial of the Licensor's CUA Application, the Licensor shall reimburse
the City for the cost of all improvements placed upon or made to the Park Parcel (excluding park
design fees) from the Commencement Date of this License Agreement to the date of denial of the
CUA Application, within thirty (30) days of City's written request and proof of costs incurred.
The provisions of this Section 6.3 shall survive the expiration or earlier termination of this
License Agreement.
7. Termination. This License Agreement may be terminated, effective after various
notice periods described hereafter expire, as follows:
7.1 By the City, on thirty (30) days prior written notice, if it is unable to obtain,
maintain or otherwise forfeits any license, permit or other governmental approvals necessary for
the construction or operation of its improvements to the Park Parcel or the intended use of the
Park Parcel; or
7.2 By either party, if the other party defaults and fails to cure such default within
thirty (30) days after written notice of such default is received by the defaulting party from the
non-defaulting party; provided, however, that if such default is capable of being cured, but not
within such thirty (30) day period, this License Agreement may not be terminated so long as the
defaulting party commences appropriate curative action within such thirty (30) day period and
thereafter diligently prosecutes such cure to completion as promptly as possible.
8. Casualty.
8.1 If any part of the Park Parcel (including the improvements thereto) are damaged
by fire, act of God, hurricane or other inclement weather, or other casualty (collectively, a
"Casualty") during the Term of this License Agreement, the City shall proceed in good faith to
diligently repair the Park Parcel (including the improvements thereto) as applicable, so as to
allow for the continued use of the Park Parcel for the Permitted Purpose.
8.2 At all times during the term of this License Agreement, the City shall keep the
improvements to the Park Parcel insured against Casualty for the full replacement value thereof,
or provide for self-insurance.
3
9. Dama2e to Property: Indemnification; Insurance.
9. I The City shall not, by its use or occupancy, cause damage to the Park Parcel. The
City further agrees that all personal property placed upon the Park Parcel shall remain the
property of the City, and shall be placed on the Park Parcel at the risk of the the City.
9.2 Subject to the monetary limitations of Section 768.28(5), Florida Statutes, which
are hereby incorporated by reference, which limitations shall be applicable regardless of whether
such provisions would otherwise apply, the City shall indemnify and hold harmless the Licensor
from and against any and all claims, costs, losses, and damages arising from any negligent acts
or omissions of the City or its employees, contractors, or agents arising out of this License
Agreement including, but not limited to, the installation, construction, operation and
maintenance of improvements and the utilities used in connection with the Park Parcel. Nothing
in this Section 9.2 shall preclude Licensor from pursuing all available restitution under any
comprehensive general liability insurance policy obtained by the City pursuant to Section 9.3
hereinbelow.
9.3 At all times during the Term of this License Agreement, the City, at its sole cost
and expense, shall secure and keep in force a policy of comprehensive general liability insurance
to protect against bodily injury liability and property damage in an aggregate amount of not less
than One Million Dollars ($1,000,000) per occurrence, combined single limit. Such insurance
shall be evidenced by a valid and enforceable policy issued by an insurance company authorized to
do business in the State of Florida and reasonably acceptable to the Licensor. The policy shall
provide that the same shall not be canceled except after thirty (30) days' prior written notice to the
Licensor. Within fifteen (15) days of execution of this License Agreement by the parties, the City
shall deliver to the Licensor a copy of the insurance policy and certificates or endorsements
evidencing that the required insurance policy is then in full force and effect. Thirty (30) days prior
to the expiration of any insurance policy, the City shall deliver to the Licensor a certificate
evidencing renewal or replacement of such insurance policy. At all times during the Term of this
Agreement, the City, at its sole cost and expense, shall secure from its contractor and keep in force
workman's compensation insurance in the amount required by applicable law.
10. Notices. Any notice required or intended to be sent to the City or the Licensor
under this License Agreement shall be sufficient only if posted by registered or certified mail
using the addresses set forth on the first page of this License Agreement. Either party may
change the address for notices and payment by giving the other party five (5) days prior written
notice of any such change in the manner provided in this Section.
II. Successors and Assh~ns; Assienment. The provisions and terms hereof shall
extend to and be binding upon the successors of the City and the Licensor, and to such persons as
may by law succeed to the rights, powers, and duties of the parties hereto. The City may not
assign any of its rights or obligations hereunder without the prior written consent of the Licensor,
which consent may be withheld by the Licensor in its reasonable discretion.
4
12. Entire Al!reement. This License Agreement embodies the entire agreement
between the parties. This License Agreement may not be modified or terminated except by
written amendment by the parties. If any provision herein is invalid, it shall be considered
deleted and shall not invalidate the remaining provisions.
13. Costs and Attorney's Fees. If either the City or the Licensor is required to
enforce the terms of this License Agreement by court proceedings or otherwise, whether or not
formal legal action is required, the prevailing party shall be entitled to recover from the other
party all such costs and expenses, including, but not limited to, court costs, and reasonable
attorney's fees.
14. Waiver of Jury Trial. Both the City and the Licensor knowingly, voluntarily, and
irrevocably waive their right to a trial by jury in any civil proceedings that may be initiated by either
party with respect to any term or condition of this License Agreement.
15. Miscellaneous.
15.1 This License Agreement shall vest in the City no right, title or interest whatsoever
in or to the Park Parcel or any adjacent lands of the Licensor, other than the right of using the
same for the Permitted Purpose of this License Agreement and upon the terms and conditions set
forth herein.
15.2 The Licensor makes no representations or warranties whatsoever as to: (a) the
condition of the Park Parcel, or (b) whether the Park Parcel or any part thereof, is in compliance
with applicable federal, state, and local laws, ordinances, rules, or regulations; or (c) the
permitted or available uses of the Park Parcel under any applicable federal, state, or local laws,
ordinances, rules, or regulations. The City shall conduct its own due diligence investigation as to
the Park Parcel and the suitability thereof for the City's purposes.
15.3 This License Agreement shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida. Venue for litigation concerning this License
Agreement shall be in Miami-Dade County, Florida.
15.4 Except as may be expressly set forth herein, the parties expressly acknowledge
that it is not their intent to create any rights or obligations in any third person or entity under this
License Agreement. Nothing contained herein shall be deemed or construed as creating the
relationship of principal and agent, partners, joint venturers, or any other similar such
relationship between the parties hereto.
15.5 Both parties have substantially contributed to the drafting and negotiation of this
License Agreement and this License Agreement shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than any other. The parties
hereto acknowledge that they have thoroughly read this License Agreement, including all
exhibits and attachments hereto, and have sought and received whatever competent advice and
counsel was necessary for them to form a full and complete understanding of all rights and
obligations herein.
5
15.6 This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters contained herein and the
parties agree that there are no commitments, agreements or understandings concerning the
subject matter of this License Agreement that are not contained in this document. Accordingly,
the parties agree that no deviation from the terms hereof shall be predicated upon any prior
representations or agreements, whether oral or written.
15.7 The Licensor shall not be liable for any loss, damage or injury of any kind or
character to any person or property (i) arising from any use of the Park Parcel or any part thereof;
(ii) caused by any defect in any building, structure, or other improvements thereon or in any
equipment or other facility located therein; (iii) caused by or arising from any act or omission of
the City or of any of its agents, employees, tenants, licensees or invitees; (iv) arising from any
accident on the Park Parcel or any fire or other casualty thereon; (v) occasioned by the City's
failure to maintain the Park Parcel in a safe condition; or (vi) arising from any other cause;
unless, in any of such events, caused by the neglect or willful act or omission of the Licensor.
The City does not waive any rights of sovereign immunity that it has under applicable law.
Notwithstanding anything contained in this License Agreement to the contrary, in no event shall
the City be liable for any consequential and/or punitive damages in connection with this License
Agreement.
15.8 The City 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 Park Parcel, any improvements thereon, or any
operations at the Park Parcel. Nothing in this License Agreement shall be deemed to create an
affirmative duty of the City 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.
ITHE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.]
6
IN WITNESS WHEREOF, the parties have made and executed this License Agreement
on the date shown above.
WITNESSES:
LICENSOR:
GULFSTREAM PARK RACING
ASSOCIATION, INC.,
a Florida corporation
Name:
Name:
By:
Name:
Title:
CITY:
CITY OF A VENTURA,
a Florida municipal corporation
Name:
By:
Name:
Eric M. Soroka, City Manager
(MUNICIPAL SEAL)
ATTEST:
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By:
By:
City Clerk
City Attorney
7
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
THIS IS TO CERTIFY, that on this day of _ 2006, before me, an
officer duly authorized to take acknowledgements in the State and County aforesaid, personally
appeared , as President of GULFSTREAM PARK
RACING ASSOCIATION, INC., a Florida corporation, on behalf of the corporation, who
(check one) [ ] is personally known to me or [ ] produced
as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
THIS IS TO CERTIFY, that on this _ day of _ 2006, before me, an officer
duly authorized to take acknowledgements in the State and County aforesaid, personally appeared
Eric M. Soroka, as City Manager of the CITY OF A VENTURA, a Florida municipal
corporation, on behalf of the corporation, who (check one) [ ] is personally known to me or [ ]
produced as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
8
_....~_..~ --r-
EXHIBIT "A"
PARK PARCEL
Certain real property located in Miami-Dade County, Florida more particularly described as
follows:
9
NOT INCLUDED
GULFSTREAM PARK
BROWARD COUNTY
/
/
/
c' ,/
//
,/ /' ,/
/
/
/
SCALE 1., 500'
.CaMn.6Io....._iM' I......... KEY MAP "'" PRO./tCT tto """
l ~,Po p.... ~.. ....... 1"=500' 04-2824
i .' 1800 Iller DrI.,., Bulla 100
~. Fort L..~a.. norld. 33318 "" eH> ....
~ Phonr. 1164.11121.7111 "1. 1164.112UII01 GULFSTREAM PARK 05-02-06
ii C.r1.lIlc.1.e or AulhorbelJon 8'7t1 ..... Of
EmmIT l
LAND DESCRIPTION
VILLAGE AT GULFSTREAM P.\RK
EXHIBIT
A portion of Lots I, 3 and 4, Block 7, Lots 1 through 4, Block 10, and l..<:>t5 I through 3, Block
15 all in MAP OF THE TOWN OF HALLANDALE, according to the plat thereof as recorded in
Plat Book B, Page 13 of the Public Records of Dade County, Florida, also being portions of
HALLANDALEPARK NO, 12, PART 2, according to the plat thereof as recoded in Plat Book
10, Page 17, portions of HOLL YDALE PARK, according to rhe plat thereof as recorded in ptat
Book 11, Page 2 and portions of HALLANDALE PARK NO, 12, according to the plat thereof as
recorded in Plat Book 12, Page 35, the three (3) previous plats being recorded in the Public
Records of Broward County, Florida and being pat1ieularly described as follows:
COMMENCING at the Southeast corner of Section 27, Tov,nship 51 South, Range 42 East,
Broward Count)', Florida;
THENCE South 88001 '22" West on the South line of said Section 27, a distance of2,093.59 feet
to the POINT OF BEGINNING;
THENCE continlle South 88001'22" West on said South line of Section 27, a distance of 570,55
feet to the intersection with the East right-of-way line of South Federal Highway (U,S, I) as
shown on State of Florida Department of Transportation Right-of~ Way Maps for State Road 5,
Section 860 I 0-25 t 9, said point located on the arc of a non-tangent curve concave to thc \Vest,
whose radius point bears North 79"45'42" Vi est;
THENCE on said East right-ot:way line of South Fcderal Highway (U.S, 1) the fullowing
sixteen courses and distances;
1. Northerly on the arc of said curve having a radius of 3,909.83 feet, through a central
angle of 05016'33", and an arc distance of 360,01 feet to a point afnon-tangency;
2, South 85002'14" East, a distance of 0,85 fect;
3. North 07Q51 '26" East, a distance of99.85 feet to a point on the arc of a non-tangent curve
concave to the \Vest, whose radius point ht,ars North 86049'11" West;
4. Northerly on the arc of said curve having a radius of 3,743,00 feet, through a central
angle of 05000'35", and an arc distance of327.27 feet to a point of tangency;
5. North 01049'46" West, a distance of32.91 feet;
Prepat'i.>d B)':
CALVIN, OTORD.J\NO !..NO ASSOClATES, INC
IMIO Eller Drive, Suite 600
Fon Laudt'rdak, Horida J}.~16
'~1I~' (), 21)0;"
Rcvi:;eJ l\tlgU:H). 2005
Rl'viSCtl Sepk'Illber 16. 2005
P:',Pn~i(X'ts',1(~:)4"'~l1:2R.2-1 (~IIICsll't::1m'.StR'v'[Y'1 t';?,lllk5CIiNII)Il,\Vi]b;,"l~ <11 Culf~{II..',il)i d\',f
Sheet 1 of 8 Sheets
6. South 88010'14" West, a distance of 4.50 feet to a point 011 the arc of a non-tangent curve
concave to the West, whose radius point bears South 88014'02" West;
7. Northerly on the arc of said curVe having a radius of 3,909.83 1'e(,t, through a central
angle of 00003'48", an arc distance of 4.32 fect to a point of tangency;
8. North 01"49'46" West, adistanecofl,Sl1.75 teet;
9. North 02003'07" East, a distance 01'67.65 feet;
10. North 01049'46" \Vest, a distance 01'200.25 feet;
II. North 43"07'48" East, a distance of38.89 feet;
12, North O1Q52'33" West, a distance ofl06.00 feet;
13. South 88007'27" West, a distance of 10.97 fcet;
14. North 66056'55" Wcst, a distance of23.16 feet;
15. North 01050'08" West, a distancc of555.82 feet;
16. North 33052'37" East, a distance of 40.03 fo"t to the intcrsection with the South right-of-
way line of Hibiscus Street as ~hown on THE PROMENADE AT HALLANDALE,
according to the plat thereof as recorded in Plat Book 112, Page 4 of the Public Records
of Bro,vard County, Florida;
THENCE North 88013'39" East on said South right-of-,vay linc and its Easterly projection, a
distance of 594.33 feet
THENCE South OJ 046'2 J" East, a distance of 1 O.Oj) feet;
THENCE North 88013'39" East, a distance of 110.41 feet;
THENCE South 01006' 17" East, a distance of 29.83 feet;
THENCE South 01050'08" East, a distance of 414.60 feet;
THENCE North 88009'52" East, a distance of 277.46 feet;
THENCE South 01053'41" East, a distance of 1 ,205.42 feet to a point on the arc of a non-tangcnt
curve concave to the Southeast, whose radius point bears South 08025'32" East;
Pr<'J>3T'd !lye
CAlVIN,GlORn^~() AND ;\~SO(,l!\TES, INC
1 SOOE1Jcr Drivc. Suhc ('.00
Fort Laude-mule, l'lorida 33316
Jui)'6,2W5
Re..iSbt }\ugUSl 3. 2005
Re~'il!ol.>d SepLemb~I' 260, 2005
P:"J'rujoc~\2004\0428Z4 Gulrst~:l.Ill"SllRV1~Y\Legilll)t':scri I"ti rJoflsWil1ag~ III Culf:;tru<.lJ'r'l,doc
Sheet 1 of8 Sheets
THENCE Southwesterly on the arc oC said curve having a radills of 59.\3 fect, through a central
angle ofS I 041'52", an arc disl;mce ofi{4.31 feet to a point oftangcncy;
THENCE South 00007'24" East, a distance of 34.90 feet;
THENCE Soulh 88009'52" West, a distance of 170.01 feet;
THENCE South 01050'08" East, a distance of 226.96 feet to a point on the arc of a non-tangent
curve concave to the East, whose radius point bears South 12035'36" East;
THENCE Southerly on the arc of said curve having a radius of 116.08 feel, through a central
angle of 158029'04", and an arc distance of 321.09 fcetto a point of non-tangency;
THENCE South 01 "50'OS" East, a dislance of 315.49 feet;
THENCE South 88009'52" West, a distance of 103.71 feel;
THENCE South 43009'52" West, a distance of 276.44 feet;
THENCE South 01050'08" East, a distance 01'618.62 feet to the POINT OF BEGINNING;
Said lands lying in the City of Hallandale Beach, Broward County, Florida and containing
2,646,985 square feet (60,7664 acres), more or less.
NOTES:
1. Not valid without the signature and original embossed seal of a Florida licensed
Professional Surveyor and Mapper,
2. Lands described hereon were not abstracted, by the surveyor, for ownership, easements,
rights-of-way or other instmments that may appear in the Public Records of Broward
County.
3. Bearings shown hereon are relative to the South line of the SE ~.'~ of Section 27-51-42
having a bcaring ofSoutll 8S00] '22" \,vest.
4. 111e description contained herein and tho attached sketch, do not represent a field
Boundary Survey.
Pri.~rmmd By:
C,\LVIN, GtORDANO AND ASSOCL~TES, lNC.
1800 Eller Drive, Suitt:' 600
fort l.audcrdl!lk. Florid.1 JDI6
July 6, 2tl05
Re\' isoo Au~"st 3, 2003
R~visc.i September 16.10(J~
P:\Projccts\1004'<042824 Crulfsne.:nn\SCRVEY\Lcgdl rkscrjplir)lls\Villagc at Gult5trc.lmcloC
Sheet 3 of 8 Sheets
SURVEYOR'S CERTIFICATE:
I HEREBY CERTIFY: 11181 tlus "SKETCH AND LEGAL DESCRfl'T10N" of the propcr'(y
shown hereon is true and correct to the best of my knowledge and belief as recently drawn lmder
my supervision. This sketch and legal description complies with the Minimum Tedmieal
Standanls sel forth by the Florida State Board of Professional SUT','eyors and Mappers in Chapter
61 G17-6 lorida Administrativ g<lc pursuant to 472.027 Florida Statutes.
,INC.
1~tp~
f'lcP'<1n::d 01':
C'AlVfN,GlORDANO ,.\NDA:SS{)(,I.A'Tr~. INC
1800 Elle( Drive, Suite WO
FOI"l Laudcrrlnle, Honda 3331 ~
Jul;y (" 1005
l~.c-\'jsed AU~lll.l J, 2005
Revised September 26) Z005
P:\Pr(ljcct~\2004'.{)42R24 Gulffolt'tfiin\SllRVEY\Lcgal Dl:scriptiutlsWill:1ge <'It GulfslrclJl1tdoc
Sheet 4 of 8 Sheets
SKETCH TO ACCOMPANY LEGAL DESCRIPTlm~
VIU_AGE AT GULFSTREAM PARK
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60.7564 ,t..CRr.S
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LEGEND:
9CR e,u."..",!.l C>t-'iJnly Retu',h!-
CA C~tr()l ...."l<i~
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()B .. Deed 600-"
DCR ... M:ami-CMde County ~e<;-Qrd.n
rsIPC = field F,ft>Ok (lnd Po-qe
n>L .. florida Po_r ond light
10 ... Id.,tilic.<ltion
l "" Let'.qtn
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file{ '" Range-
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&It...... ~ PlImen '"=200.0' 04-2674 ?
H100 2llar nm~, tuilf 81lO WI if H!UANDl.lE BfAll-i. BROI/IRll CGUN fY. flCllID!
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Pb/lf'llf": 1l61.Rl.T7'6i r.. ~:.~.ijM? em Of A\I(NfURA, MfIMf-OA!Jf CChJNIY, Il(RfDI 07/05/2005 Sfr LEn B
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VILLAGE AT CUl.FS !REAM P !,RK
EX, I Ell
GRAPHIC SCALE
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HALLANOALE SEACH BOULEVARD
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LEGEND:
o,eR a EtrOl!tOrQ Col.,!l'lty Ri!lCO~c:!r.
CA ... CentrQl "1"q'~
rt '" Centlllrl'i...ct
o - D~
OB Deed 8.001<
OCR ..- M/(JTt1 i-Oode Coun l'l Re:t:;on::Is i
ralPG 'III' rJeld Book and Peg.
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l ." l.el'\.tjl"..
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f' .. An!
PC, ... Plot BobOk
PG .. F'oqt'
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RGE .. ROI"l9t' KE'o' !tIIAP
RjW '" Ricftd'"ol-W<,1}'
!Ore .. s.e.;"ion
s.o"rr Squnr.. f1.l","\ THl Pfi'OM(NA.O( AT H"lL"NOAI~
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GULiS1R[^~ PARK I~^CING ASSOW.lION, INt 1 "~200.0' 04-2624
alY OF HAlLANDALE BfACH, 1lR0WARD CDUNTY, fL{)RID", CN;IflL[ 8
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CITY (f AIlfNTURA, IlIAUI-DI.lJ[ COONn. RORIDA 07/05/2005 SEE W1 8
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Schedule 11.4.2
Pre-Filing Tasks
Seller shall have performed the following:
· Obtained an updated survey of the property which will be the subject of the CUA
. Prepared or have prepared a letter demonstrating compliance with level of service
standards as provided in Section 31-239 of the City Code
· Request availability of service letters from utility providers franchised to operate
within the City
· Have obtained availability of service letters from not less than three (3) of said
utility providers
. Prepared applicant representative and Business Relationship Affidavits
· Requested a meeting with City staff to present a conceptual plan for the
development of the property which will be the subject of the CUA