2001-24661 RESO
RESOLUTION NO. 2001-24661
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA AUTHORIZING THE EXECUTION
OF THE PURCHASE AND SALE AGREEMENT, SUBST ANTIALL Y IN THE
FORM ATTACHED HERETO, FOR THE PURCHASE OF THE PROPERTY
LOCATED AT 1701 MERIDIAN AVENUE (THE "SUBJECT PROPERTY"
A/KJA 77717TH STREET/THE EQUITY ONE BUILDING AND PARKING
LOT) AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE THE
TERMS OF A SETTLEMENT AGREEMENT BETWEEN GAZIT
(MERIDIAN) INC. AND THE CITY OF MIAMI BEACH WHICH PROVIDES
FOR THE DISMISSAL WITH PREJUDICE OF LITIGATION STYLED
GAZIT (MERIDIAN) INC. v. CITY OF MIAMI BEACH, 11TH JUDICIAL
CIRCUIT COURT CASE NO. 00-30164 CA 24, AND FURTHER
AUTHORIZING THE MAYOR, CITY CLERK AND ALL NECESSARY
CITY PERSONNEL TO EXECUTE SUCH OTHER DOCUMENTS AS MAY
BE NECESSARY TO EFFECTUATE THE INTENT OF THIS RESOLUTION.
WHEREAS, Gazit (Meridian) Inc. has heretofore asserted claims against the City of Miami
Beach which are set forth in a complaint filed in the Circuit Court for the Eleventh Judicial Circuit
Court in and for Miami-Dade County, Florida styled Gazit (Meridian) Inc. v. City of Miami Beach,
Circuit Court Case No. 00-30164 CA 24, pertaining to the property located at 1701 Meridian
Avenue, Miami Beach, Florida which is also known as 777 17th Street (the Equity One building and
parking lot located adjacent thereto) (the "subject property"); and
WHEREAS, the parties wish to settle the above-referenced litigation via (a) a Settlement
Agreement which will provide that Gazit (Meridian) Inc. shall dismiss with prejudice its pending
lawsuit in the above referenced case and (b) a Purchase and Sale Agreement whereby the City will
purchase the subject property; and
WHEREAS, the City Commission wishes to execute the attached Purchase and Sale
Agreement and to authorize the City Manager to negotiate the terms of a Settlement Agreement as
referenced above.
WHEREAS, an appropriation of$350,000 from the City of Miami Beach Parking Enterprise
Fund is required for the deposit under the Purchase and Sale Agreement, which includes $25,000 for
due diligence expenses.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA as follows:
1. That the City Commission hereby authorizes the execution of the Purchase and Sale
Agreement, substantially in the form attached hereto, which provides for the City's purchase of the
subject property.
2. That the City Commission hereby authorizes the City Manager to negotiate the terms
of a Settlement Agreement whereby Gazit (Meridian), Inc. dismisses with prejudice its pending
lawsuit in Gazit (Meridian) Inc. v. Cit..v of Miami Beach, 11th Judicial Circuit Court Case No. 00-
30164 CA 24.
3. That the City Commission further approves the execution of such other documents
as may be necessary to effectuate the intent of this Resolution.
4. That the City Commission hereby appropriates $350,000 from the City of Miami
Beach Parking Enterprise Fund for the required deposit under the Purchase and Sale Agreement,
which includes an additional $25,000 for due diligence expenses.
PASSED and ADOPTED THIS
17th
il
October
2001.
ATTEST:
MAYOR
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CITY CLERK
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APPROVEDMTO
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OFFICE OF THE CITY ATTORNEY
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F LOR 0 A
MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
COMMISSION MEMORANDUM
SUBJECT:
Mayor Neisen O. Kasdin and
Members of the City Commission
Murray H. Dubbin . _ I~ \I\V
City Attorney ~~'~
RESOLUTION kTHORlZING THE CITY MANAGER TO NEGOTIATE
THE TERMS FOR THE PURCHASE OF THE PROPERTY LOCATED AT
1701 MERIDIAN AVENUE, A/KIA 777 17TH STREET (THE EQUITY ONE
BUILDING AND PARKING LOT) AND AUTHORIZING THE CITY
MANAGER TO NEGOTIATE THE TERMS OF A SETTLEMENT
AGREEMENT RELATIVE TO LITIGATION STYLED GAZIT (MERIDIAN)
INC. V. CITY OF MIAMI BEACH, 11TH JUDICIAL CIRCUIT COURT
CASE NO. 00-30164 CA 24.
DATE: October 17 2001
TO:
FROM:
The City Attorney's Office submits the above referenced Resolution for consideration by the
Mayor and City Commission. This Resolution authorizes the City Manager to negotiate the terms
of a Purchase and Sale Agreement relative to the property located at 170 I Meridian Avenue (aIkal
777 17th Street/the Equity One building and parking lot) and further authorizes the City Manager
to negotiate the terms of a Settlement Agreement between Gazit (Meridian) Inc. and the City of
Miami Beach for the dismissal with prejudice of litigation styled Gazit (Meridian) Inc. v. City of
Miami Beach, 11th Judicial Circuit Court Case No. 00-31064 CA 24. The Resolution also
authorizes the Mayor, City Clerk, and other necessary City personnel to execute the negotiated
Settlement Agreement and Purchase and Sale Agreement after further consideration and approval
by the City Commission of such negotiated terms.
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Agenda Item J? 7 P
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AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT, is dated this ~ day of October, 2001, and is entered into by and
between the City of Miami Beach, Florida, a municipal corporation organized and existing
under the laws of the State of Florida and/or assigns (the "Buyer") whose address is 1700
Convention Center Drive, Miami Beach, Florida 33139 and GAZIT (MERIDIAN), INC. a Florida
Corporation, (the "Seller"), whose address is care of Alan J. Marcus 20803 Biscayne Blvd.
Suite 301 Aventura, FL 33180
1. DESCRIPTION OF PROPERTY: Seller agrees to sell and Buyer agrees to purchase,
under the terms and conditions set forth in this Agreement, all right, title and interest of
the Seller in and to the following:
A. The parcel or parcels of real property, known as the Equity One office building
located at 1701 Meridian Avenue, Miami Beach, Florida 33139 consisting of
approximately 36,000 square feet of improvements and the adjacent parking lot
containing approximately 17,500 square and any improvements situated on such
parcels, together with any and all easements, covenants and other rights
appurtenant to such parcels and owned by Seller, the legal description of which
is (hereinafter the "Real Property"):
See Exhibit "An attached hereto
B. Any and all transferable licenses, permits, certificates of occupancy, and other
approvals in effect at the Closing Date and necessary for the current use and
operation of the Real Property or the personal property, any and all transferable
warranties, architectural or engineering plans and specifications and tests and
studies, development rights that exist and are in Seller's possession, as of the
Closing Date and relate to the Real or Personal Property.
C. All furniture, furnishings, fixtures, equipment and other tangible personal property
that is affixed to andlor located at the Real Property which is owned by Seller on
the Closing Date and used in connection with the management, operation or
repair of the Real Property excluding all tangible personal property owned by
tenants of the Real Property (collectively "Personal Property");
D. Intangible Property (collectively "Intangible Property") consisting of (i) any and all
Leases and Contracts in effect on the Closing Date, (ii) any and all refundable
security deposits and other deposits and interest thereon, if required by law (iii)
any and all transferable licenses, permits, licenses, certificates of occupancy,
and other approval in effect at the Closing Date and necessary for the current
use and operation of the real property or the personal property, (iv) any and all
transferable warranties, architectural or engineering plans and speCifications and
tests and studies, development rights that exist and are in Seller's possession,
as of the Closing Date and relate to the Real or Personal Property.
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E. Real Property, Personal Property and Intangible Property may sometimes be
herein collectively referred to as the "Property"
2. PURCHASE PRICE: The total purchase price of the Property is $6,050,000.00 (U.S.)
payable in certified funds or by wire transfer, as follows:
Deposit paid to Alan J. Marcus
Trust Account within Two (2) days
of the Effective Date:
$ 302,500,000
Wire transfer of funds required at
closing:
$5747500.00 :j:
TOTAL PURCHASE PRICE:
$6050000,00
:j: Subject to adjustments and prorations provided for in this Agreement.
The deposits to be paid by Buyer shall be held by ALAN J, MARCUS, ESQUIRE TRUST
ACCOUNT and shall be refundable to Buyer only as set forth herein. Interest on the
deposits to be paid by Buyer shall follow the principal of said deposits. Such deposits,
together with the interest accrued thereon, are hereinafter referred to as the "Earnest
Money Deposit."
3. ACCEPTANCE: Seller shall have seven (7) business days from receipt of a fully
executed Agreement from Buyer to accept or reject same, Until such time as this
Agreement has been fully executed by Seller, this Agreement shall not be binding.
4. FACSIMILE. EFFECTIVE DATE' Facsimile copies of this Agreement, signed and
initialed in counterpart, shall be considered for all purposes, including delivery, as
originals. The Effective Date of this Agreement will be (a) the date when the last one of
Buyer and Seller has signed this offer, or (b) if changes in this offer (after signature)
have been made and initialed by the parties, the date when the last one of Buyer or
Seller has initialed those changes,
5. INSPECTIONS AND CONDITION OF PROPERTY.
A. Buyer shall have until November 30, 2001 to complete its due diligence
inspection of the Real Property (the "Inspection Period"), Within two (2)
business days of the Effective Date, Seller shall make available to Buyer (i)
copies of all leases, lease proposals, renewals or other agreements or
correspondence amending or modifying the foregoing; (ii) income and expense
statements for the past three years; (iii) a current rent roll; (iv) a list of all
personal property; (v) copies of all management, leasing and service contracts;
(vi) Seller's title insurance policy and survey; and (vii) copies of Seller's most
recent environmental report applicable to the Property.
B. During the Inspection Period, Buyer may conduct such inspections, at Buyer's
sole expense, as Buyer may deem necessary to ascertain the physical condition
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of the Real Property. However, Buyer shall arrange for any such inspections by
appointment only coordinated with the Seller.
C. In the event the Real or Personal Property is not acceptable to Buyer for any
reason whatsoever, in Buyer's sole and absolute discretion Buyer shall provide
written notice of same to Seller, at Seller's address, prior to the expiration of the
Inspection Period. In such event, this Agreement shall be terminated and shall
be of no further force and effect and Buyer and Seller shall each be released of
all obligations hereunder and Buyer shall be refunded the Earnest Money
Deposit without further notice. Failure of Buyer to deliver notice to Seller as
required herein shall constitute waiver of Buyer's right to give such notice and
shall be deemed acceptance of the Real and Personal Property by Buyer in its
as is, where is condition.
D. Buyer shall (i) complete its Inspection Period; (ii) not disturb or interfere with the
operation, management or use of the Property by Seller, Seller's agents, any
tenant of the Property or by any such tenant's customers, invitee or guests; and
(iii) not damage or affect the physical structure of the Property. Buyer shall be
responsible for any and all losses, damages, charges and other costs associated
with such inspections and studies, and Buyer covenants and agrees to return the
Property to the same condition as existed prior to such inspections and studies.
Buyer agrees not to allow any liens to arise against the Property as a result of
such inspections and studies and agrees to indemnify and hold Seller harmless
from and against any and all claims, charges, actions, costs, suits, damages,
injuries, or other liabilities which arise, either directly or indirectly, from Buyer's or
its agent's or employee's entry onto the Property prior to Closing.
E. Upon 24 hour notice, Buyer may have access to all of the original documents
concerning the Property referenced in Paragraph A, of this Paragraph 5, located
at the Seller's principal office at 1696 NE Miami Gardens Drive, 2'. floor, North
Miami Beach, FL 33179.
F. Buyer acknowledges that Buyer is purchasing the Property in "AS IS, WHERE
IS" Condition and Buyer further acknowledges that Seller has made no
warranties or representations, express or implied, in respect to the real and
personal property except as set forth herein and further, Buyer has been given
the opportunity and has made or will make, as set forth herein, an independent
investigation of the Property and Buyer acknowledges that an unqualified
standard of caveat emptor applies to the transaction under this Agreement.
6. TERMINATION AFTER INSPECTION PERIOD: Buyer shall have the right to
terminate this Agreement at any time between December 1, 2001 and December 20,
2001, for any reason, or for no reason, upon payment of $15,000.00 to Seller. In such
case, the amount of $15,000.00 shall be deducted from the Earnest Money Deposit, and
the balance of the Earnest Money Deposit shall be immediately returned to Buyer, and
this Agreement shall be terminated and shall be of no further force and effect and Buyer
and Seller shall each be released of all obligations hereunder.
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7. CLOSING:
A. The closing for delivery of the deed and payment of the balance of the purchase
price shall take place at Seller's attorney's office, or at such other place as the
parties may mutually agree upon, at 9:00 a.m., Eastern Standard Time on
December 21, 2001, or such other date as the parties may mutually agree upon.
B. Possession of the Property shall be transferred by Seller to Buyer simultaneously
with the closing of title, subject to tenants' right of possession,
8. FINANCING:
This is an all cash transaction.
9. SELLER'S REPRESENTATIONS AND WARRANTIES:
A. Seller represents and warrants to Buyer that as of the Effective Date, the person
executing this Agreement on behalf of Seller is duly authorized to do so, that
Seller has full right and authority to enter into this Agreement, and this
Agreement constitutes a valid and legally binding obligation of Seller,
enforceable against Seller in accordance with its terms.
B. Seller is duly organized, validly existing and in good standing, and authorized to
do business within the State of Florida.
C. Seller has good, marketable and insurable fee simple title to the Property.
D. There are no actions, suits, claims, condemnation proceedings, or other matters
pending, or, to the Seller's best knowledge and belief, threatened against Seller
that could affect Seller's ability to perform its obligations under this Agreement.
E, All documents and records delivered to Buyer are true and correct, to Seller's
best knowledge and belief.
F. There are no payments for work andlor improvements to the Property which are
unpaid or will become due or owing at Closing.
G, There are no contracts, commitments, etc, concerning the use and/or operation
of the Property, except as disclosed to Buyer or that exist in the ordinary course
of business,
H, There are no existing notices of violation of any State, County or City statutes,
laws, ordinances or regulations with respect to the Property,
10. BUYER'S REPRESENTATIONS AND WARRANTIES: Buyer represents and warrants to
Seller that the following are true, accurate and complete as of the Effective Date:
A. Buyer is a municipal corporation duly organized and existing under the laws of
the State of Florida.
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B. Each of the persons executing this Agreement on behalf of Buyer is duly
authorized to do so. Buyer has full right and authority to enter into this
Agreement and to complete the transaction contemplated herein, This
Agreement constitutes a valid and legally binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
C. There are no actions, suits, claims or other matters pending, or, to the Buyer's
best knowledge and belief, or threatened against Buyer that could affect Buyer's
ability to perform its obligations under this Agreement.
D. Buyer has sufficient funds and worthy credit available to consummate the
Closing of the transaction described in this Agreement.
11. LIMITATIONS ON FUTURE LEASES AND RENTALS: Subsequent to the Effective
Date of this Agreement, Seller shall not, without Buyer's prior written consent, enter into
any leases or contracts except for (i) contracts to be completed or that are to terminate
at or before closing, or (ii) service contracts that are terminable on not less than 60
days notice. Buyer shall have five (5) days to approve any proposed leases. In the event
Buyer does not provide written consent to the proposed lease of contract, Buyer's
silence shall be deemed a refusal to consent to said lease or contract.
12. CONDITION OF PROPERTY AT CLOSING: Seller shall be obligated to maintain
the Property in the same condition as of the Effective Date, reasonable wear and tear
excepted,
13. CONDITIONS PRECEDENT TO CLOSING
A. Conditions Precedent for Buyer: The obligation of Buyer to purchase the
Property from Seller under this Agreement is, subject to the satisfaction, at
Closing, of each of the following:
(i) The representations and warranties made by Seller in this Agreement
shall be true, accurate and complete in all material respects on and
as of the Closing Date with the same force and effect as if such
representations and warranties were made on and as of such date.
(ii) Seller shall have performed all covenants and obligations required by
this Agreement to be performed by Seller on or before Closing.
(jji) Title to the property shall conform with the requirements of Paragraph
18 herein and Buyer shall have received a written commitment for title
insurance, as described in Paragraph 18, indicating that an owner's
title insurance policy in accordance with the provisions of Paragraph
18 will be issued after the date of Closing and compliance with any
requirements contained therein,
(iv) Seller shall have furnished a written estoppel letter from the tenants set
forth in Paragraph 19 of this Agreement or an affidavit executed by Seller
in lieu thereof.
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(v) Seller shall have executed a settlement agreement (the "Settlement
Agreement"), in form and substance satisfactory to Buyer, for the
dismissal with prejudice of litigation styled Gazit (Meridian) Inc. v. City of
Miami Beach 11th Judicial Circuit Court Case No. 00-31064 CA 24.
B. Conditions Precedent for Seller: The obligation of Seller to sell the Property
to Buyer under this Agreement is, subject to the satisfaction, at closing, of each
of the following:
(i) The representations and warranties made by Buyer in this Agreement
shall be true, accurate and complete in all material respects on and
as of the Closing Date with the same force and effect as if such
representations and warranties were made on and as of such date.
(ii) Buyer shall have performed all covenants and obligations required by
this Agreement to be performed by Buyer on or before Closing.
(iii) Buyer shall have executed the Settlement Agreement, in form and
substance satisfactory to Seller, for the dismissal with prejudice of
litigation styled Gazit (Meridian) Inc. v. City of Miami Beach 11th
Judicial Circuit Court Case No. 00-31064 CA 24, which Settlement
Agreement shall provide for, among other things, the payment of
$450,000 from Buyer to Seller for Seller's legal costs and expenses in
the above-styled case.
14. CLOSING' DELIVERIES AT CLOSING: The closing of the transaction contemplated
in this Agreement ("Closing") shall take place on the date set forth in Paragraph 6 of this
Agreement.
A, At, or prior to, the time of Closing, Seller shall deliver to Buyer the following items
in form and substance reasonably acceptable to Buyer:
(i) Statutory Warranty Deed.
(ii) Bill of Sale with respect to any Personal Property included in the sale.
(iii) Mechanics' Lien Affidavit.
(iv) No Lien Affidavit
(v) Title Affidavit.
(vi) Assignment of Leases, Rents and Security Deposits.
(vii) Assignment of Contracts, if any.
(viii) FIRPTA Affidavit.
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(ix) Title evidence as set forth in Paragraph 18.
(x) A corporate resolution and an incumbency certificate to evidence the
Seller's capacity and authority to consummate Closing, and if
required, true and correct copies of Articles of Incorporation and
bylaws, including all amendments thereto; and a current Certificate of
Good Standing;
(xi) A completed IRS Form 1099 S.
(xii) Evidence of payment of the current tax year's ad valorem real
property taxes and personal property taxes,
(xiii) All keys in Seller's possession to all entrance doors to, any equipment
and utility rooms located in, and all others locks in, the Property,
appropriately marked for identification, and combinations to all safes
and combination locks, if any, within the Property,
(xiv) To the extent in Seller's possession or under Seller's control, all plans
and specifications for the building and all other improvements
comprising a part of the Property (including, without limitation, for all
architectural, structural, mechanical, plumbing and electrical
components), including the sepias of all such plans, if any, and
operating manuals.
(xv) Such other documents as may be reasonably required in order to
carry out the purchase and sale.
B. At the time of closing, Buyer shall deliver or cause to be delivered to Seller the
following items in form and substance reasonably acceptable to Seller:
(i) The earnest Deposit to be credited against Purchase Price.
(ii) A resolution of the Mayor and City Commission authorizing the
purchase and an incumbency certificate to evidence Buyer's capacity
and authority to consummate Closing.
(Iii) Acceptance of Assignment of Contracts,
(iv) Acceptance of the Assignment of Leases and Security Deposits.
(v) The balance of the Purchase Price and such other funds necessary to
pay all Closing and other costs and adjustments to be paid by Buyer
under this Agreement (to be delivered by wire transfer),
C. Each party agrees to execute and deliver at Closing a settlement statement
setting forth the charges, adjustments and credits to each party and to execute
and deliver such other documents and take such actions as either party or the
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Escrow Agent might reasonably request to consummate the transaction herein
contemplated.
D. At Closing, the Escrow Agent shall (a) disburse all funds, then (b) record,
among the appropriate Public Records, all documents to be recorded, and then
(c) deliver all original documents and copies thereof, to the appropriate parties.
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RISK OF LOSS:
Risk of loss prior to closing shall be borne by Seller.
A If between the time of execution of this Agreement and the time of closing, the
Property is damaged by fire or other casualty the following shall apply, at Seller's
option:
(i) Upon receipt of applicable insurance proceeds, Seller shall have the
obligation to repair or replace the damaged improvements built upon
the Real Property. If Buyer requires, Seller shall make such repairs
or replacements and this Agreement shall continue in full force and
effect and the Seller shall be entitled to extend the closing for a
reasonable additional period of time so as to enable Seller to
complete such repairs or replacements; or
(ii) Buyer may notify Seller that Buyer would rather that Seller not repair
or replace any such loss or damage and Seller shall assign all right to
and in any and all proceeds received from insurance or in satisfaction
of any claims or actions in connection with such loss or damage and
upon such assignment Buyer shall close without any purchase price
reduction,
(iii) In the event the cost of repairs is in excess of $100,000,00 Seller
shall have the right to cancel this Agreement in which event, this
Agreement shall be deemed canceled and of no further force or
effect. Buyer shall be refunded its deposit monies, without further
notice, and the parties shall be released and discharged of all claims
and obligations hereunder.
B. CONDEMNATION' In the event that all or any substantial portion of the Real
Property is condemned or taken by eminent domain prior to Closing, Buyer may,
at its option, either: (i) terminate this Agreement by written notice thereof to
Seller within five (5) days after Seller notifies Buyer of the condemnation and
receive an immediate refund of the Deposit, and all interest accrued thereon or
(ii) proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Seller shall deliver to Buyer at the Closing any proceeds
actually received by Seller attributable to the Real Property from such
condemnation or eminent domain proceeding, net of any costs associated with
such condemnation or eminent domain proceeding, or an assignment of Seller's
rights against the condemning authority, and there shall be no reduction in the
purchase price, In the event Buyer fails to timely deliver written notice of
termination as described in (i) above, Buyer shall be deemed to have elected to
proceed in accordance with (ii) above.
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16. EXPENSES OF CLOSING:
A. Seller shall pay the following costs incurred in this sale:
(i) Seller's attorneys fees and costs;
(ii) The cost of recording any releases or corrective title instruments; and
(iii) The costs of delivery of the Evidence of Title, as required in
Paragraph 18B, herein,
B. Buyer shall pay the following costs incurred in this sale:
(i) Buyer's attorney's fees and costs;
(ii) The costs of recording the deed of conveyance;
(iii) The cost of a certified survey (if Buyer so requires) certified to the
benefit of the Buyer and the Title Insurer;
(iv) Any documentary stamp or transfer taxes, including surtax, imposed
in connection with the sale of the Property.
(v) All Title Insurance Premiums;
(vi) Any other costs and expenses in connection with the purchase.
17. SPECIAL ASSESSMENTS' PRORATIONS AND CREDITS:
A. SPECIAL ASSESSMENT LIENS, Certified, confirmed, and ratified special
assessment liens as of the date of closing (and not as of the Effective Date) are
to be paid by Seller. Pending liens as of the date of closing will be assumed by
Buyer, provided, however, that when the improvement resulting in the
assessment has been substantially completed as of the Effective Date, the
pending lien will be considered as certified, confirmed, or ratified and Seller will
at Closing be charged an amount equal to the last estimate by the public body,
of the assessment for the improvement.
B. Prorations: Current ad valorem real estate taxes, based on the latest tax bill
then available; personal property taxes, rents, maintenance fees and other
similar customarily proratable items shall be prorated as of the Closing Date with
Buyer being responsible for and being credited with those on the day of Closing.
All current year's ad valorem real property taxes and all personal property taxes
shall be paid by Seller prior to the Closing Date, Seller shall be credited for all
rents paid through the Closing Date, Any rents that have accrued, but are
unpaid and not past due as of the date of Closing shall not be prorated. Upon
collection of such rent by either party, the party collecting such rent shall make
the appropriate proration and distribute same with 10 days of receipt. The
provisions of the Paragraph are intended to survive Closing.
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C. Credits: Buyer shall be credited with the amount of any prepaid rents paid
to Seller by tenants of the Property for periods subsequent to the Closing date
and with the amount of any deposits for tenants of the Property, including rental,
cleaning, utility, key, damage and other deposits.
D. Buyer shall have the right to satisfy any items that may exist at Closing from the
closing proceeds to be paid to Seller.
18. EVIDENCE OF TITLE: Seller has herewith supplied Buyer with copies of Schedules A
and B from Commonwealth Land Title Insurance Company Mortgagee's Policy (Policy
No. F02-204750, together with hard copies of the exceptions to the title policy and the
boundary survey mentioned therein. All exceptions contained in said policy shall be
Permitted Exceptions. except for those dealing with existing encumbrances, Within
thirty (30) days of Buyer's' receipt of the documents described above, Buyer shall, at its
own expense, obtain a commitment for an owner's title insurance policy (hereinafter
referred to as the "Commitment") written on a title insurance company which is
authorized and registered to issue title insurance in the State of Florida (the "Title
Company") evidencing that Seller is vested with fee simple, good and marketable title to
the Property, free and clear of all liens, encumbrances, exceptions or qualifications
whatsoever save and except for (a) those exceptions specified as "Permitted
Exceptions" in Exhibit "B" hereto and (b) those exceptions to title which are to be
discharged by Seller at or before the closing thereof. Legible copies of all exceptions
set forth on the Commitment shall be attached to it. The Commitment shall also
evidence that upon the execution, delivery and recordation of the Deed to be delivered
pursuant to the provisions of this Contract and the satisfaction of all requirements
specified in the Commitment, Buyer shall acquire fee simple, good and marketable title
to the Property, subject only to the Permitted Exceptions. Seller shall comply with all
reasonable requirements set forth in Buyer's title commitment applicable to Seller
(including delivery of a "gap" affidavit in addition to the other documents described in the
Commitment) and Buyer shall comply with all requirements set forth in the Commitment
applicable to Buyer. If Buyer or its attorneys shall determine the Commitment does not
meet the requirements specified above, or that the title to the Property is unmarketable
for reasons other that the existence of Permitted Exception or exceptions which are to
be discharged by Seller at or before the closing hereof, the Buyer shall notify Seller of
that fact in writing within ten (10) days after Buyer's receipt of the Commitment. Such
written notice shall specify those liens, encumbrances, exceptions or qualifications to
title which are not: (I) Permitted Exceptions; (ii) contemplated by this Contract to be
discharged by Seller at or before closing. Or (iii) reasonably acceptable to Buyer despite
not being either Permitted Exceptions or dischargeable at closing; any such liens,
encumbrances, exceptions or qualifications being hereinafter referred to as "Title
Defects,"
Seller, without any obligation on its part to bring lawsuits or expend more than $5,000.00
shall have sixty (50) days following its receipt of written notice of the existence of Title
Defects in which to cure or eliminate the Title Defects to the satisfaction of the Title
Company in such manner as to permit the Title Company to either endorse the
Commitment so as to delete the Title Defects therefrom or issue a new Commitment
which specifically provides affirmative insurance over or against those Title Defects
specified by Buyer, and which otherwise meets the requirements of this Paragraph. If
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Seller shall in fact cure or eliminate the Title Defects, the Closing shall take place on the
date specified in this Agreement, or if such date has passed, within thirty (30) days after
the end of said sixty (60) day period.
If Seller is unable to cure or eliminate the Title Defects within the time allowed, or is
unwilling to cure any Title Defect because it would require the expenditure of money in
excess of $5,000.00 (in which event the Seller shall immediately provide the Buyer with
written notice of that fact and the curative period shall terminate as of the date of said
notice), Buyer may elect to terminate this Agreement within thirty (30) days following the
expiration of the sixty (60) day curative period (or earlier termination of said curative
period) by giving written notice of termination to Seller or, alternatively, Buyer must close
its purchase of the Property and accept the conveyance of the Property subject to the
Title Defects, in which event the closing shall take place on the date specified in this
Agreement without reduction in the Purchase Price, or in the event such date has
passed within thirty (30) days after the end of said sixty (60) day period. If, by giving
written notice to Seller within the time allowed, Buyer elects to terminate this Agreement
because of the existence of uncured title Defects, Buyer shall have as its sole remedy
the return of the Earnest Money Deposit and, upon the disbursement thereof to Buyer,
this Agreement and all rights and obligations of the parties hereunder shall terminate
and be null and void except those which expressly survive termination of this
Agreement.
19. TENANT ESTOPPEL LETTERS: Seller shall deliver to Buyer, prior to Closing, an
estoppel certificate (hereinafter the "Estoppel Certificate") signed by each tenant of the
Property indicating the amount of rent paid, the date last paid, the amount of security
deposits, any prepaid rents, etc, Buyer shall, within five (5) days of the Effective Date,
supply such form acceptable to Buyer for Seller's use. In lieu of an estoppel certificate,
Seller may supply an Affidavit attesting to the items set forth in the Estoppel Certificate.
20. ASSIGNMENT: This Agreement may be assigned to an affiliate of the Buyer
without the consent of Seller. This Agreement may not be assigned to any other buyer
without approval of Seller, unless said buyer is qualified, in Seller's sole discretion, said
approval not to be unreasonably withheld. Any such assignment shall indicated
acceptance of the assignment by the assignee.
21. DEFAULT: Should Buyer fail to purchase on the date on which title is to close in
accordance with this Agreement, or fail to perform any of Buyer's other obligations
under this Agreement and such default is not cured within 10 days after written notice to
Buyer, Seller may, at Seller's option, cancel this Agreement by written notice to Buyer.
In such event, Buyer's deposits and all other sums paid to Seller (including any interest
earned thereon) shall be retained by Seller as liquidated and agreed damages for
Buyer's default, and this Agreement shall terminate. Seller has removed the Property
from the market and has incurred indirect expenses relative to sales, advertising and the
like, and Buyer recognizes that no other method could determine the precise damage
resulting and retention of all sums then paid as liquidated and agreed damages shall be
Seller's sole remedy in the event of Buyer's default. If this Agreement is so canceled,
Seller may sell the Property to any third party as though this Agreement had never been
made (without any obligation to account to Buyer for any part of the proceeds of such
sale). Buyer agrees not to file any action against Seller seeking the return of any portion
11
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of said deposits or seek any reduction in the amount of the liquidated and agreed upon
damages if this Agreement is terminated for Buyer's default. Should Seller default under
this Agreement or fails to perform any of Seller's other obligations under this Agreement
and such default is not cured within 10 days after written notice to Seller, Buyer's sole
and exclusive remedy shall be to (i) obtain a refund of all deposits made, whereupon
this Agreement shall terminate and neither party shall have any liability to the other, or
(ii) bring an action for specific performance, without waiving Buyer's right to damages
incurred as a result of Seller's breach.
22, ESCROW AGENT:
A. The Escrow Agent joins in the execution of this Agreement for the express
purposes of acknowledging receipt of the Earnest Money Deposit (subject to
clearance) lodged by Buyer with Escrow Agent hereunder and agreeing to be
bound by the provisions set forth in this Agreement with respect to the Earnest
Money Deposit. and perform such duties as set forth herein.
B. The Earnest Money Deposit shall be held in trust by Escrow Agent, in an
interest-bearing account separate and apart from all other funds of, or held by,
Escrow Agent.
C, 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. Escrow
Agent is the law firm representing Seller. In the event of a dispute
between the parties, the parties consent to Escrow Agent continuing to
represent Seller, notwithstanding that Escrow Agent shall continue to
have the duties provided for in this Agreement.
D. Escrow Agent may (a) act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine; (b) assume the
validity and accuracy of any statement or assertion contained in such a
writing or instrument; and (c) 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 correctness 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.
E. The parties to this Agreement do and shall indemnify Escrow Agent and
hold it harmless from any and all claims, liabilities, losses, actions, suits or
proceedings at law or in equity, or other expenses, fees, or charges of any
character or nature, including attorneys' fees and costs, which it may incur
or with which it may be threatened by reason of its action as Escrow
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Agent under this Agreement, except for such matters which are the result
of Escrow Agent's gross negligence or willful malfeasance. Escrow Agent
shall be vested with a lien on all property deposited under this Agreement
for the purpose of such indemnification, and for any other expenses, fees
or charges of any character or nature, which may be incurred by Escrow
Agent in its capacity as escrow agent. Escrow Agent has and shall have
the right, regardless of any instructions, to hold the property deposited in
escrow until and unless said additional expenses, fees and charges shall
be fully paid.
F. 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.
Escrow Agent shall be indemnified for all costs and reasonable attorneys'
fees, including those for appellate matters and for paralegals and similar
persons, incurred in its capacity as escrow agent in connection with any
such interpleader action; Escrow Agent may represent itself in any such
interpleader action and charge its usual and customary legal fees for such
representation, and the court shall award such attorneys' fees, including
those for appellate matters and for paralegals and similar persons, to
Escrow Agent from the losing party. Escrow Agent shall be fully protected
in suspending all or part of its activities under this Agreement until a final
judgment in the interpleader action is received.
G. Escrow Agent may consult with counsel of its own choice, including
counsel within its own firm, and shall have full and complete authorization
and protection in accordance with the opinion of such counsel. Escrow
Agent shall otherwise not be liable for any mistakes of fact or errors of
judgment, or for any acts or omissions of any kind unless caused by its
gross negligence or willful misconduct.
H. Escrow Agent may resign upon five (5) days' written notice to Seller and
Purchaser. If a successor escrow agent is not appointed jointly by Seller
and Purchaser within the five (5) day period, Escrow Agent may petition a
court of competent jurisdiction to name a successor.
L The provisions of this section shall survive the Closing and also the
cancellation of this Agreement.
23. MISCELLANEOUS PROVISIONS:
A. All written notices and demands provided under this Agreement shall be hand
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delivered or sent via certified or registered mail, return receipt requested, or by
Federal Express or other air carrier service. All notices and demands shall be
deemed properly addressed if addressed as follows and if mailed, shall be
deemed given upon being deposited in the United States mail, postage prepaid:
To Seller:
To Buyer:
Alan J. Marcus, Esquire
20803 Biscayne Blvd.
Suite 301
Aventura, Florida 33180
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: City Manager
(with a copy to the City Attorney at
the same address)
B. This Agreement supersedes and any all prior understandings and agreements
between Seller, its agents and representatives and Buyer. It is mutually
understood and agreed that this Agreement represents the entire understanding
between Buyer and Seller. No representations or inducements made prior to the
signing of this Agreement, which are not expressly included in this Agreement or
imposed by law, shall be of any force or effect.
C. Neither this Agreement nor a memorandum thereof shall be recorded in the
office of the Clerk in any Circuit Court of the State of Florida, or in any other
Public Records of the State of Florida. Any recording of same by Buyer shall be
considered a breach of this Agreement.
D. The acceptance of the deed by Buyer at the Closing of this transaction shall be
acknowledgment by Buyer of the full performance by Seller of all of its
agreements and responsibilities hereunder, and no performance of any
agreement, obligation, responsibility or representation of Seller shall survive the
closing of this transaction, except those speCifically provided for by statute and
those specifically stated in this Agreement to survive the closing,
E. Time shall be of the essence with regard to performance pursuant to this
Agreement.
F. Any disputes arising in connection with this Agreement shall be settled according
to Florida law and venue for any action in connection with this Agreement shall
be in Miami-Dade County. Florida,
G. No modification of this Agreement shall be valid unless in writing and signed by
both parties.
H, This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one and
the same instrument which may be sufficiently evidenced by one such
counterpart.
I. Should any part, clause, provision or condition of this Agreement be held to be
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void, invalid or inoperative, the parties agree that such invalidity shall not affect
any other part, clause, provision or condition thereof, and that the remainder of
this Agreement shall be effective as though such void part, clause, provision, or
condition had not been contained herein.
J. In the event of any litigation arising from this Agreement the prevailing party shall
be entitled to recover attorney's fees and costs incurred therewith.
24. BROKERAGE: Seller and Buyer hereby acknowledge, represent and warrant to
each other that no broker or finder has been employed by either Seller or Buyer in
connection with the sale and purchase transaction contemplated in this Agreement.
Seller and Buyer each warrant to the other that no commissions are payable by Seller or
Buyer to any broker or finder in connection with this Agreement or the transaction
contemplated herein, and Seller and Buyer each agrees to indemnify, defend, save and
hold the other harmless from and against the payment of any further commissions or
fees or claims for commissions or fees by virtue of any acts or actions undertaken by
them, respectively; it being expressly agreed that the foregoing agreement of
indemnification shall expressly survive any closing or closings under this Agreement.
25. RADON GAS, Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to person 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 health unit.
26. FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT. The Foreign Investment in
Real Property Tax Act (FIRPTA), IRC 1443, requires that every purchase of U.S. real
property must, unless an exemption applies, deduct and withhold from Seller's proceeds
ten percent (10%) of the gross sales price, The primary exceptions which might be
applicable are: (a) Seller provided Buyer with an affidavit under penalty of perjury, that
Seller is not a "foreign persons," as defined in FIRPTA, or (b) Seller provides Buyer with
a "qualifying statement, "as defined in FIRPTA, issued by the Internal Revenue Service.
Seller and Buyer agree to execute and deliver as appropriate, any instrument, affidavit
and statement, and to perform any acts reasonably necessary to carry out the
provisions of FIRPTA and regulations promulgated thereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth below.
SELLER:
Executed by Seller on
~,2001,
re ident
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BUYER:
Executed by Buyer on Ot!.'T70 8t1l2 z.S, 2001.
N'f"R(:NED /IS 10
FORM & LANGUAGE
. FOR EXECUTION
~v;;{:;!
ESCROW AGENT:
Executed by Escrow Agent on ~, 2001,
~ ffMM r
ALAN J, MARCUS
ESCROW AGENT
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Gazit Meridian Legal Descriptions
Exhibit A
Parcell
Folio 02-3234-007-0410
Lot 1 and the South Y:. of Lot 2, Block 22, AMENDED PLAT OF GOLF COURSE
SUBDIVISION OF ALTON BEACH REALTY COMPANY, according to the Plat thereof,
as recorded in Plat Book 6, at Page 26, of the Public Records of Miami Dade County.
Florida and the thirty foot (30') Bridal Path adjacent thereof.
And
Parcel II
Folio 02-3234-007-0420
Lot 3 and the North Y:. of Lot 2, Block 22, AMENDED PLAT OF GOLF COURSE
SUBDIVISION OF ALTON BEACH REALTY COMPANY, according to the Plat thereof,
as recorded in Plat Book 6, at Page 26, of the Public Records of Miami Dade County,
Florida and the thirty foot (30') Bridal Path adjacent thereof,
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