Agreementdojo - Z~~~7
AGREEMENT FOR
SALE AND PURCHASE OF REAL PROPERTY
AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation
("Seller"), hereby agrees to sell and convey to CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation ("Buyer"), and Buyer agrees to purchase from Seller, the Property (as
hereinafter defined) and the other assets and rights herein described, on the following terms and
conditions:
Section 1. Definitions and References. The following terms, as used in this
Agreement, have the following meanings unless the context is inconsistent therewith:
"Agreement Date" means the date upon which this Agreement has been executed
by both Seller and Buyer.
"Closing" means the consummation of the sale and conveyance of the Property by
Seller to Buyer and payment of the Purchase Price by Buyer to Seller, pursuant to Section 8 of
this Agreement.
"Closing Date" means the date upon which the Closing occurs, as set forth in
Section 8.1 of this Agreement.
"Contracts" means all contracts and other agreements, written or oral, governing
or relating to or affecting the Land.
"Coun "means Miami-Dade County, a political subdivision of the State of
Florida.
"Ground Lease" means the leases between Nedia Dallett and Charlotte and John
Staiger and Nedia and Michael Dallett and Matilda Miller (undated)..
"Hazardous Substances" means (i) those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances" or "solid waste"
in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. §960 et sec., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. §1801 et sue., or the Clean Water
Act, 33 U.S.C. §1321 et sec., and in the regulations promulgated pursuant thereto; (ii) those
substances listed in the United States Department of Transportation Table (49 CFR § 172.101) or
by the Environmental Protection Agency as "hazardous substances"; (iii) such other substances,
materials and wastes which are regulated, or classified as hazardous or toxic, under applicable
local, state or federal law or regulations; and (iv) any material, waste or substance which is
petroleum, asbestos, polychlorinated biphenyls, flammable explosives or radioactive materials.
"Improvements" means any buildings, infrastructure or other physical
improvements now located upon the Land.
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"Inspection Period" has the meaning set forth in Section 6.1.
"Land" means the real property described on Exhibit E-1, together with all
tenements, hereditaments, easements, privileges, reversions, remainders and other rights and
appurtenances belonging or in any manner appertaining thereto including, without limitation, all
reversionary interests in and to any adjoining or abutting rights-of--way. The Land includes,
without limitation, a 17,250 square foot parcel.
"Leases" means all leases, subleases, subsubleases, licenses and other agreements,
whether oral or written, for the use or occupancy of any portion of the Property, including
without limitation the Ground Lease and Sublease.
"Permits" means all permits, approvals, orders, licenses and other authorizations
held by Seller relating to the Property, including those listed on Schedule S-1.
"Permitted Exceptions" means the title exceptions set forth in Schedule B,
Section II of the Title Commitment that are hereafter approved by Buyer in writing, and to be
included in the Title Policy, pursuant to Section 3.1 hereof.
"Plans" means all of Seller's existing architectural drawings and plans for
proposed development of the Land including, without limitation, those prepared by ADD, Inc.
("Architect") for a mixed used parking garage and retail project.
"Property" means the Land, the Improvements and the Plans.
"Purchase Price" has the meaning set forth in Section 2.1.
"Sub-Lease" means the 99-year lease entered into by Nedia M. Dallett, as lessor,
and Standard Oil Company, as lessee, dated January 1, 1948, assigned to American Riviera Real
Estate.
"Survey" means the survey of the Land to be prepared by the Surveyor, as
provided in Section 3.2.
"Surveyor" means a licensed Florida land surveyor selected by Buyer and
acceptable to Title Company.
"Title Agent" means an agent for the Underwriter designated by Buyer by whom
the Title Commitment and Title Policy are to be issued.
"Title Commitment" means the Owner's Marketability Title Insurance
Commitment issued or to be issued to Buyer including an ALTA Form 9 endorsement with
respect to the Land and Improvements, as contemplated by Section 3.1, which will include copies
of all matters for which exception is made in Schedule B, Section II thereof.
"Title Policy" means the Owner's Marketability Title Insurance Policy (with
Form 9 endorsement to be issued to Buyer pursuant to the Title Commitment). ~~
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"Underwriter(s)" means Chicago Title Insurance Company or another national
title company acceptable to Buyer, for and upon whom the Title Commitment and Title Policy
are to be written and issued.
Section 2. Purchase Price and Terms of Pam.
2.1 Purchase Price. The purchase price for the Property shall be Four Million
Nine Hundred Seventy-Five Thousand and No/100 Dollars ($4,975,000) (the "Purchase
Price"), subject to adjustments and prorations as herein provided.
2.2 Terms of Payment. The Purchase Price will be paid as follows:
The entire Purchase Price, subject to the prorations and adjustments for
which provision is made in this Agreement, will be paid by Buyer to Seller at the time of Closing
by wire transfer to Seller's account. Seller shall provide wiring instructions to Buyer not less than
three (3) business days prior to Closing.
Section 3. Title Evidence.
3.1 Title Insurance Commitment. Within ten (10) days after the execution
hereof, Buyer shall cause the Title Agent to issue upon the Underwriter the Title Commitment in
an amount equal to the Purchase Price (with such affirmative endorsements as may be reasonably
obtainable and requested by Buyer, but in any event including ALTA Form 9 Endorsement) and
having an effective date subsequent to the Agreement Date. Buyer will have until the end of the
Inspection Period specified in Section 6.1 within which to cause the Title Commitment and
Survey to be examined and to notify Seller of any objections to Seller's title reflected by the Title
Commitment and/or Survey ("Objection Notice"). Seller may elect to cure or remove, on or
before Closing, any objection raised by Buyer and shall have thirty (30) days following the
Objection Notice to do so; provided, however, Seller shall be obligated to (i) cause any mortgage
or lien on the Property to be satisfied and released of record, (ii) cause all Leases to be
terminated; and (iii) cure such other objections that can be cured by the payment of a monetary
sum of up to Fifty Thousand and No/100 Dollars ($50,000.00) in the aggregate with respect to all
such other objections. If Seller is diligently working to cure or remove an objection and the cure
or removal can not be accomplished within thirty (30) days, Seller shall have up to an additional
sixty (60) days to effect the cure or removal. If Seller elects not to, or is unable to, cure or
remove any objection other than those referenced in (i), (ii), and (iii) above, Buyer, at Buyer's
sole option, may:
(a) postpone Closing for a period of time not to exceed sixty (60) days,
during which Seller shall continue efforts to cure or remove any objection, but Seller shall have
no obligation to do so other than those objections referenced in (i), (ii), and (iii) above, at the end
of which postponement period Buyer will elect to proceed as set forth in (b) or (c) below; or
(b) accept title to the Land and Improvements in its then existing
condition and proceed with Closing; or
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(c) terminate this Agreement by written notice to Seller, upon which
this Agreement will be null and void and the parties hereto will have no further rights or
obligations hereunder.
3.2 Survey. Seller has delivered to Buyer a current survey of the Land dated
March 17, 2010. During the Inspection Period, Buyer may obtain an updated or new survey at
Buyer's cost (the "Survey") certified to Buyer, the Title Agent, and the Underwriter and
including a surveyor's certificate approved by Buyer. If the Survey shows any encroachment,
hiatus or other condition which could affect the marketability of title to the Land or
Improvements or could have an effect upon use of the Land and Improvements in general, or
upon the use of the Land and Improvements specifically for construction of a garage and retail
mixed-use project, Buyer will have the right to object to such condition as a defect in title
pursuant to provisions of Section 3.1 hereof. Buyer shall also have the right to object as a defect
in title to any hiatus between the Land and the adjacent parcel that is currently owned by Buyer.
Section 4. Seller's Representations and Warranties. Seller hereby represents and
warrants to Buyer as follows:
4.1 Due Execution and Performance. This Agreement has been, and the deed
of conveyance and all other documents, instruments and agreements required to be delivered by
Seller pursuant to this Agreement will be when executed and delivered, duly executed and
delivered by Seller and constitute the legal, valid and binding obligations of Seller enforceable in
accordance with their respective terms. Neither the execution, delivery or performance of this
Agreement or any document, instrument or agreement required to be delivered by Seller pursuant
hereto, nor the consummation of the transactions contemplated hereby, is prohibited by, or
requires Seller to obtain the consent, approval or authorization of, or notice to or filing or
registration with, any person, public authority, court or any other entity having jurisdiction over
Seller or the Property, except any such approval as has already been obtained and except that
Seller shall arrange for the Ground Lease and Sublease to be terminated at Closing.
4.2 Binding Agreements. The execution and delivery by Seller of this
Agreement and the performance by Seller of its obligations hereunder do not and will not conflict
with, or result in a breach of or a default or violation under, any contract, agreement or
arrangement to which Seller is a party or any statute, decree, judgment, regulation, order or rule
of any governmental authority or court having jurisdiction over Seller or the Property, except that
Seller shall arrange for the Ground Lease and Sublease to be terminated at Closing.
4.3 Mechanic's Liens. There are no unpaid bills for labor, services or work
performed or rendered upon the Property, or for materials or supplies furnished or delivered to
the Property, which could result in the filing of mechanics', materialmen's or laborers' liens
upon the Property, except those that Seller shall cause to be released or satisfied at or before
Closing.
4.4 Improvements; Leeal Requirements. Neither the Improvements on the
Property, nor its present use, are in violation of any governmental or private requirements or
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restrictions or any development order which applies to the Property, except that the conditional
use approval to allow parking has expired ("Conditional Use Expiration").
4.5 Litigation; Proceedings. There are no suits or proceedings pending, or to
the best of Seller's knowledge threatened, against or concerning Seller or any portion of the
Property. Seller has received no notice and has no knowledge of'any pending or threatened
condemnation, taking or similar proceeding affecting the Land or any portion thereof, or any
pending public improvements in or about any portion of the Land which could result in special
assessments or any re-assessments against or affecting any of the Land.
4.6 Hazardous Substances. Seller has no notice or knowledge of (i) any
Hazardous Substance present on or within the Property or otherwise adversely affecting the
Property, (ii) any present or past generation, recycling, reuse, sale, storage, handling, transport
and/or disposal of any Hazardous Substance on or within the Property, or (iii) any failure to
comply with any applicable governmental, environmental laws, regulations, ordinances or orders
relating to the generation, recycling, reuse, sale, storage, handling, transport and/or disposal of
any Hazardous Substance other than as reflected in the reports listed on Schedule S-2, which is a
list of all environmental reports in Seller's possession or control, true copies of which have been
provided to Buyer.
4.7 Propert~pliance. The Property conforms in all material respects to
all deed restrictions, all building, zoning, environmental or similar laws, ordinances or
regulations and any other covenants contained in any agreement with other land owners or any
governmental entity.
4.8 Contracts. There are no Contracts to which Seller is a party that directly or
indirectly relate to or affect the Property.
4.9 Leases. There are no Leases in effect with respect to the Property, except
those that Seller shall cause (or arrange) to be terminated on or before Closing.
4.10 Permits; Governmental Approvals. Schedule S-1 contains a complete list
of all Permits and governmental approvals applicable with respect to the Property. Said Permits
and approvals are in good standing without default thereunder, except for the Conditional Use
Expiration.
4.11 Adverse Information. Seller has received no information nor has any
knowledge of any judicial or administrative action, or any action by adjacent landowners, natural
or artificial conditions upon the Property or any other significant adverse fact or condition
relating to the Property that would materially adversely affect the development of the Property
for a mixed use garage and retail project.
4.12 Compliance With Laws. The Property and the present uses thereof are in
compliance with all applicable federal, state and local laws, ordinances, regulations, statutes,
rules and restrictions (collectively, "Laws") pertaining to and affecting the Property, other than
the Conditional Use Expiration. / ~~~
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4.13 Accuracy of Representations; Seller's Knowledge. All representations
and/or warranties contained herein that are made "to Seller's knowledge" or "to the best of
Seller's knowledge" shall include any facts or circumstances known to Seller and its principals.
All statements and information of Seller set forth in this Agreement are, and on and as of the
Closing Date will be, correct in every material respect.
Section 5. Covenants of Seller. Seller hereby warrants to and covenants with Buyer
as follows:
5.1 Compliance. Prior to the Closing, Seller will continue to comply with all
authorizations, approvals and legal requirements applicable to the Property, other than the
Conditional Use Expiration.
5.2 Maintenance of the Property. Seller will maintain the Property in its
existing condition and will deliver the Property to Buyer at Closing in same condition as exists
on the Agreement Date, normal wear and tear excepted. Seller will not perform or allow the
performance of any additional construction on the Property or enter into any new Contracts,
Leases, or other agreements affecting or binding upon the Property, after the Agreement Date
without Buyer's prior written consent.
5.3 Cooperation. Seller will cooperate with Buyer in good faith in connection
with all investigations, examinations and inspections being made by Buyer with respect to this
transaction.
Section 6. Buyer's Inspection Period.
6.1 Inspection Period. Buyer will have the right, from and after the
Agreement Date through 6:00 p.m. on the date that is thirty (30) days after the Agreement Date
(the "Inspection Period") to inspect and investigate the physical and other conditions of or with
respect to the Property. Buyer's inspections and investigations of the Property may include but
shall not be limited to (i) review of surveys, plans, title insurance policies, engineering studies,
site plans, and any other materials, documents, tests, studies, and reports related to the Property
and/or the development thereof, which Seller has in its possession or control; (ii) review of
Permits, Plans and other documents relating to the Property; (iii) review of the status of title and
all zoning and/or government restrictions and requirements, (iv) obtaining an environmental
audit of the Property; (v) performance of engineering and soil tests, analyses and other
investigations as Buyer deems necessary and appropriate; and (vi) investigation and/or review
any other facts, circumstances or matters which Buyer deems relevant to its proposed purchase of
the Property. Seller agrees to cooperate with Buyer in all investigations and to provide to Buyer
promptly copies of all items, documents and materials that Buyer may reasonably request and
that Seller or its attorneys or agents have in their possession or control. Buyer shall have full
access to the Property for the purpose of conducting the foregoing inspections and investigations
after first notifying Seller since the Property is currently used for parking. Buyer shall be
responsible for all costs of repair and for returning the Property to its original condition and for
the payment of any violations or liens arising as a result of Buyer's inspection. Buyer shall (to
the extent permitted by, and subject to the limitations on liability under Section '768.28, Florida
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Statutes) indemnify Seller for any and all damages to person or property resulting from Buyer's
inspection.
6.2 Termination by Buyer. Buyer will have the right, which may be exercised
by sending written notice to Seller at any time during the Inspection Period, to terminate this
Agreement if in Buyer's sole opinion the Land is not suitable or feasible for Buyer's intended
purpose of developing a municipal public parking garage and retail project ("Intended Use") or
that such development and use may be unusually expensive (including for example, the presence
of Hazardous Substances or adverse soil or subsurface conditions). Upon any such termination
this Agreement will be null and void and the parties will have no further rights or obligations
hereunder or with respect to the Property. If Buyer fails, or elects not, to give written notice of
termination prior to the expiration of the Inspection Period, this Agreement shall remain in effect
in accordance with its terms.
In the event that the last day of the Inspection Period occurs on a legal holiday, such date
will be extended to the next succeeding regular business day.
Section 7. Conditions to Obligations of Bum. The obligations of Buyer pursuant to
this Agreement are conditioned upon fulfillment of each of the following conditions:
7.1 Correctness of Representations and Warranties. Each of the
representations and warranties of Seller set forth herein shall have been true and complete in all
material respects when made and on the Closing Date, as if made at and as of that time.
7.2 Absence of Adverse Change. Between the Agreement Date and the
Closing Date, no materially adverse change in the Property shall have occurred and no fact shall
have arisen which has or could be expected to have a material adverse affect on the Property.
If any condition(s) precedent set forth in this Section 7 are not satisfied as of the Closing
Date, Seller shall be afforded a period of thirty (30) days in which to cause them to be satisfied
(or such greater period not to exceed an additional 90 days as Buyer shall specify). Seller agrees
to use good faith efforts to attempt to satisfy such conditions during such cure period. If the
conditions are not satisfied within such cure period, then Buyer may either (a) waive satisfaction
of such condition(s) and proceed to Closing, or (b) terminate this Agreement by written notice to
Seller, in which event this Agreement will be null and void and the parties will have no further
rights or obligations hereunder; (c) seek specific performance of Seller's obligations hereunder,
or (d) in the case of Seller's breach of any warranties or representations, seek all available
remedies.
Section 8. Closing.
8.1 Time and Place. Unless extended pursuant to the provisions of this
Agreement, the Closing will take place within ten (10) days after the Inspection Period at the
offices of the Buyer or at such other place as the parties may mutually approve. Buyer upon not
less than five days notice to Seller may accelerate the Closing to a date specified by Buyer in
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such notice. In the event the scheduled Closing Date falls upon a legal holiday, the Closing will
occur on the next succeeding regular business day.
8.2 Closing Expenses.
(a) At Closing, Seller shall pay, or cause to be paid, the cost of
recording the warranty deed and any corrective instruments, all documentary stamp taxes and
surtaxes on the warranty deed, the assignment of Sublease, and all other documents delivered
pursuant to Section 8, and any other applicable transfer or conveyance taxes on the transactions
contemplated hereby (and this provision shall survive Closing).
(b) At Closing, Buyer will pay the premium for the Title Policy.
(c) Each party will pay its own attorneys' fees and fees due to its other
consultants or agents.
8.3 Delivery of Documents by Seller. At the Closing, in addition to any other
documents specifically required to be delivered or acts required to be done pursuant to this
Agreement, Seller will deliver, or cause to be delivered, to Buyer the following (all of which
shall be in form reasonably acceptable to Buyer and Seller);
(a) assignment of the Sublessee's interest in Sublease (but City shall
assume no liability thereunder)
(b) agreement terminating the Ground Lease, executed by the ground
lessee thereunder (which shall include a full release of liability as to the City)
(c)
of each party)
(d)
Permitted Exceptions;
agreement terminating the Sublease (with full release of all liability
warranty deed conveying title to the Land, subject only to the
(e) indemnity from Seller in favor of City as to all obligations under
the Ground Lease and Sublease including, without limitation, indemnification from Seller to City
as to any financial liability which may arise as a result of the order of the closings contemplated
herein, or of the assignment and termination of the Sublease and the Ground Lease.
(f) general warranty of title to the Land subject only to Permitted
Exceptions executed by Seller in favor of Buyer
(g) such affidavit(s) or certifications as may reasonably be required to
induce the Title Agent and/or Underwriter to issue the Closing Commitment(s) to Buyer at
Closing;
(h) a certificate of Seller, dated as of the Closing Date, certifying (i)
that the representations and warranties of Seller contained in this Agreement are true as of the
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~ry
Closing Date in all material respects; (ii) that there are no unpaid bills for labor, materials or
services to the Land or Improvements and no labor, services or materials have been undertaken
or supplied which could be the basis for any claims against the Property; (iii) that Seller is in sole
and exclusive possession of the Property and that no other person or entity has any right or claim
to possession thereof and all Leases are terminated at Closing with no remaining obligations
thereunder; and (iv) the information customarily required by title insurance companies to insure
title against matters arising during the "information gap."
(i) a statement reflecting the results of searches of the Uniform
Commercial Code (UCC) records of the Secretary of the State of Florida and the Clerk of the
Circuit Court of Miami-Dade County, dated as close to Closing as possible under practices and
procedures of such offices and showing that there are no UCC financing statements filed of
record affecting Seller's interest in the Properly;
(j) an affidavit complying with the provisions of Section 1445(b)(2) of
the Internal Revenue Code of 1954, as amended, stating that Seller is not a foreign person;
(k) an assignment of the Permits and the Plans;
(1) the consent of the Architect who prepared the Plans to the
assignment to Buyer (including agreement to perform further architectural services for Buyer), in
form and content approved by Buyer;
(m) such evidence as the Underwriter and Buyer shall reasonably
require to verify the due execution, delivery and enforceability of this Agreement and the
documents executed and delivered by Seller at Closing and full termination of the Ground Lease
and Sublease;
(n) a lease or other agreement (the "Post-Closing Agreement")
pursuant to which Seller shall be entitled to use the Land as a parking facility provided that Seller
(i) complies with all legal and regulatory requirements (including obtaining all necessary permits
and governmental approvals such as reinstatement of the conditional use approval to allow
parking); (ii)obtains such insurance for the benefit of Seller and Buyer as Buyer may reasonably
require; (iii) agrees to indemnify and hold Buyer harmless from all liability, costs and expense
relating to the Property or its operation; (iv) pays all real estate taxes and assessments; and (v)
pays rental or permit fees in the amount of $1.00 for the first eighteen (18) months and thereafter
(if the Post-Closing Agreement is still in effect) pays a monthly fee for each parking space on the
Land equal to City's then prevailing monthly parking permit charges established pursuant to
Section 106-55 of the Miami Beach City Code (the parties acknowledges that there are 43
parking space located on the Land). The Post Closing Agreement shall commence on the
Closing Date and shall end on the date Buyer delivers Buyer's notice to proceed to the general
contractor to commence construction of a municipal public parking garage on the Land. The
form of Post-Closing Agreement shall be agreed upon during the Inspection Period;
(o) an agreement (the "Parking Rights Agreement") pursuant to which
Buyer shall agree that if Buyer constructs a public municipal parking garage on the Land, so long
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as such parking garage remains on the Land and is operated as a public municipal parking garage,
(a) Seller or its Permitted Assignee shall be entitled to purchase up to fifty (50) parking permits
within the parking garage at Buyer's then prevailing rate in the garage (which permits shall be
purchased on an annual or monthly basis and at Buyer's then prevailing annual rate in the City of
Miami Beach Parking System established pursuant to Section 106-55 of the Miami Beach City
Code); and (b) there shall be not less than fifty (50) spaces in the garage available for valet
storage use and Buyer shall not preclude Seller or Seller's Permitted Assignee from negotiating
with the valet operator to also service Palm Court; and (c) between the Termination Date of the
Post-Closing Agreement and the date that a new municipal public parking garage has been
constructed on the Land and is available for use, Buyer shall allow Seller or its Permitted
Assignee to purchase at prevailing rates the use of up to 50 parking permits in other public
parking facilities owned by Buyer. Buyer shall make best efforts to provide said parking permits
within close proximity to Palm Court but no farther than the parking facility located at 27`" Street
and Collins. As used herein, "Permitted Assignee" shall mean the present owner of the Palm
Court and any successor in title to the Palm Court. The Parking Rights Agreement shall be
agreed upon during the Inspection Period.
(p) An assignment of the existing Chevron Indemnity Agreement
together with confirmation in form acceptable to Buyer that the Chevron indemnity remains in
full force and effect.
Seller shall be entitled to use a portion of the closing proceeds to
accomplish Seller's simultaneous acquisition of fee title to the Land and termination of the
Ground Lease, the Sublease and any other Lease, all of which shall occur immediately prior to
Seller's delivery of the instruments referenced in (a) - (p) above; provided, however, that Buyer
shall have the right to approve the procedures for accomplishing the foregoing, which approval
shall not unreasonably be withheld. Buyer agrees to cooperate with Seller in an effort to reduce
transfer or other taxes provided Buyer determines that in doing so (x) Buyer's rights (including
rights to title warranties, indemnities and representations) asestablished in this Agreement will
not adversely be affected and Buyer fully warrants title to the Land, subject only to the Permitted
Exceptions, (y) Buyer's liabilities or costs will not be increased; and (z) the Ground Lease and
Sublease are terminated at Closing and Buyer shall have no liability with respect thereto (and
Seller shall indemnify and hold Buyer harmless with respect thereto in form and substance
approved by Buyer).
8.4 Delivery of Documents by Buyer. At Closing, in addition to any
documents specifically required to be delivered or required to be done pursuant to this
Agreement, Buyer will deliver, or cause to be delivered to Seller the following:
(a) the Purchase Price, as adjusted by prorations and adjustments
provided herein, by wire transfer to Seller's account;
(b) the Parking Rights Agreement; and
(c) the Post-Closing Agreement.
r~~
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8.5 Prorations. Except as otherwise specifically set forth in this Agreement,
ad valorem property taxes and other revenues and expenses of, and impounds, prepayments or
deposits affecting or related to, the Property (excluding insurance costs and premiums), will be
prorated between Seller and Buyer as of the Closing Date and Seller shall pay the prorated taxes
as required by law at Closing. Special assessment liens certified, or for which the work has been
substantially completed, as of the Closing Date will be paid by Seller. Any returns for taxes
attributable to periods prior to Closing shall belong to Seller.
8.6 Execution and Delivery of Bilateral Agreements. At Closing, in addition to
any other documents required to be executed and delivered in counterparts by both parties, Seller
and Buyer will execute and deliver to each other closing statements accounting for sums adjusted
or disbursed at Closing.
Section 9. Brokers. Each party represents and warrants to the other that it has not
contracted with, consulted, dealt or negotiated with any real estate broker, finder, salesman or
agent to whom a commission or other compensation is or could be due in connection with the
sale of the Property by Seller to Buyer or any other matter associated with this Agreement (and
Seller specifically disclaims any right to a commission from Buyer). Anything to the contrary
notwithstanding, the representations, warranties-and agreements of this Section 9 will survive
closing of the transactions which are the subject of this Agreement and the delivery of the deed
of conveyance, or any earlier termination of this Agreement.
Section 10. Survival of Representations, Warranties and Agreements; Indemnification.
10.1 Survival. The warranties and representations contained herein shall
survive the Closing and the delivery of the deed.
10.2 Indemnity by Seller. Seller will defend, indemnify and hold harmless
Buyer from and against all damages accruing from or resulting by reason of the inaccuracy of any
representation or warranty or the breach or nonperformance of any covenant or agreement made
by Seller in this Agreement that survives Closing. The provisions of this Section 10.2 shall
survive the Closing.
Section 11. Default.
11.1 Buyer's Default. If Buyer fails or refuses to perform any of Buyer's
obligations set forth in this Agreement, Seller's sole remedy will be to terminate this Agreement,
and receive a sum equal to One Hundred Thousand Dollars ($100,000) from Buyer as agreed and
liquidated damages and in full settlement of all claims of Seller against Buyer related to the
transaction which is the subject of this Agreement, it being specifically understood and agreed
that in such event Seller will suffer damages otherwise incapable of precise ascertainment; and
thereafter this Agreement will be null and void and the parties hereto will have no further rights
or obligations hereunder.
11.2 Seller's Default. In the event Seller fails or refuses to perform any of
Seller's obligations under this Agreement, Buyer may, at Buyer's sole option, pursue its remedies
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at law and/or in equity including, but not limited to, (a) terminating this Agreement, and/or (b)
maintaining an action for specific performance of the terms of this Agreement.
Section 12. Risk of Loss.
12.1 Casualty. Seller will bear all risk of loss occurring to or upon any portion
of the Property prior to conveyance thereof by Seller to Buyer pursuant to the terms of this
Agreement. In the event that any material portion of the Property is damaged or destroyed prior
to Closing, (a) Seller shall cause all Improvements to be demolished and removed from the Land
(and may apply any insurance premiums to the cost thereof); and (b) deliver and/or assign to
Buyer all insurance proceeds, with respect to such damage or destruction, except, however for
those used by Seller pursuant to (a) above.
12.2 Condemnation. In the event that any portion of the Property is taken by
eminent domain or condemnation proceeding prior to sale and conveyance thereof by Seller to
Buyer, Buyer may either (a) proceed to close notwithstanding the eminent domain or
condemnation proceeding, in which event Seller will assign to Buyer its entire right, title and
interest in and to any award, or (b) terminate this Agreement by delivering written notice of
termination to Seller upon which this Agreement will be null and void and the parties will have
no further rights or obligations hereunder. Seller agrees promptly to notify Buyer of any eminent
domain or condemnation proceeding, and Buyer will be entitled to join in such proceeding and to
defend Buyer's interest hereunder in the Property affected thereby.
Section 13. Miscellaneous.
13.1 Subsequent Negotiations. Seller agrees that it will not enter into any
negotiations for the sale of the Property with any other prospective purchaser subsequent to the
Agreement Date unless this Agreement is terminated pursuant to the terms hereof.
13.2 Liti ag tion. In the event of any litigation between Seller and Buyer
concerning the terms of this Agreement, the prevailing party will be entitled to reimbursement of
its reasonable costs and expenses, including attorneys' fees, incurred in trial, appellate and post-
judgment proceedings.
13.3 Notices. Notices required or permitted to be given pursuant to the terms of
this Agreement will be delivered in person or sent by certified mail, return receipt requested,
postage prepaid, by recognized contract carrier providing signed receipt for delivery, or by
facsimile transmission, and will be deemed delivered on the date of delivery, if in person or
facsimile transmission, two (2) days following the deposit with the Postal Service, if sent by
mail, or one (1) day following deposit with the carrier, if sent by contract carrier. Notices will be
delivered at the following addresses/facsimile numbers, subject to the right of any party to
change the address/facsimile number at which it is to receive notice by written notice to the other
p~3':
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To Buyer:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Jorge M. Gonzalez, City Manager
Telephone: (305) 673-7010
Copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33li9
Attention: City Attorney
Telephone: (305) 673-7010
Facsimile: (305) 673-7782
To Seller:
American Riviera Real Estate Company
309 23`d Street, Suite 203
Miami Beach, Florida 33139
Attention: Ronald Bloomberg, President
Telephone: (305) 538-9090
Copy to:
McArdle & Perez, PA
201 Alhambra Circle, Suite 711
Coral Gables, Florida 33134
Attention George McArdle, Esq.
Telephone: (305) 442-2214
13.4 Integration and Severability. This Agreement and the attachments hereto
(all of which are hereby incorporated herein and made a part hereof by reference) set forth the
entire understanding of Buyer and Seller with the respect to the matters which are the subject of
this Agreement, superseding and/or incorporating all prior or contemporaneous oral or written
agreements, and may be changed, modified, or amended only by an instrument in writing
executed by the party against whom the enforcement of any such change, modification or
amendment is sought. Any provision of this Agreement which is prohibited or unenforceable/
_13_ Li~
540773 9
will be ineffective to the extent of such prohibition or invalidity without invalidating the
remaining portions hereof.
13.5 Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon, and is intended solely for the benefit of, the parties hereto, and their respective
heirs, personal representatives, successors, and assigns; and no third party will have any rights,
privileges or other beneficial interests herein or hereunder.
13.6 Construction. Headings and similar structural elements set forth in this
Agreement are intended for ease of reference only, and are not intended, and will not be
construed, to reflect the intention of the parties or to affect the substance of this Agreement. This
Agreement has been negotiated at arm's length between Seller and Buyer, each represented by
legal counsel of its choice and having an ample opportunity to negotiate the form and substance
hereof, and therefore in construing the provisions of this Agreement the parties will be deemed to
have had equal roles in drafting.
13.7 Governing Law. This Agreement is governed by and will be construed in
accordance with the internal laws of the State of Florida without regard to conflict of law.
13.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which will constitute the same
instrument.
13.9 Further Assurances. In addition to the obligations required to be
performed under this Agreement by the parties hereto at the closing, each such party agrees to
perform such other acts, and to execute, acknowledge and deliver subsequent to the closing such
other instruments, documents and other materials, as the other party may reasonably request in
order to effectuate the consummation of the transactions contemplated herein and to vest title to
the Property in Buyer.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date(s) hereinafter set forth.
Witnessed by: SELLER:
AMERICAN RIVIERA REAL ESTATE
COMPANY, a Florida corporation
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540773_9
,~_ Date: ~'f`~'o7(:!U
Print Name i.a.,, I Rev ~ A-
BUYER:
Print Name
Print N ~ e ~ EZ--
CITY OF MIAMI BEACH, a Florida
municipal corporation
By: ~,
Name: / puc-~2
Title: M/F''fd ~
Date: ~;G,GlG i S/, 20/O
ATTEST:
,~
By: ~~/1~'!~, ~ ` ~'1~ ~-~r~-t-~, [Seal]
APPROVED AS TO
FORM & LANGUAGE
~es~ FOR EXECUTION
r
i
-.,.,~ 4 14 i a
~, f^'Gty ttorne Date
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EXHIBITS AND SCHEDULES
A Legal Description of Land
S-1 Permits
S-2 Environmental Reports
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/.Z~~
540773_9
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Lots 5, 7, and 9, less the northerly 10.0 feet for street widening purposes, of Ocean Front
Property of the Miami Beach Improvement Co. Subdivision according to the Plat thereof as
recorded in Plat Book 5 at Pages 7 & 8 of the Public Records of Miami-Dade County, Florida.
~~
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S-1
PERMITS
Conditional Use Approval (Final Order No. 1422) for surface parking lot.
City of Miami Beach Planning Board
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S-2
ENVIRONMENTAL REPORTS
Phase I Environmental Site Assessment Report dated June 3, 2004 prepared for American
Riviera Real Estate Company by Land Science Environmental Consultants and
Engineers.
2. Letter dated October 25, 2005 from CRB Geological & Environmental Service, Inc. to
Centaur Realty Organization.
~+~ 'J
540773_9