Second Amendment M
. SECOND AMENDMENT
TO
AGREEMENT OF SALE AND PURCHASE OF REAL PROPERTY
This Second Amendment to Agreement of Sale and Purchase of Real Property ( "Second
Amendment) is entered into as of March 9,
2011 ( "Effective Date ") by and between ,
AMERICAN'RIVIERA REAL ESTATE - COMPANY, a Florida corporation (' And
CITY OF MIAMI BEACH; FLORIDA, a municipal corporation ( "City ").
RECITALS !
A. Seller and City entered into an Agreement for Sale and Purchase of Real Property
dated April 14, 2010 (the "Agreement "). All capitalized terms used herein without being defined
herein shall have the meanings ascribed to them in the Agreement.
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B. Pursuant- to Section 3.1 of the Agreement, Seller had, a period of thirty (30) days
following the Objection Notice to cure or remove all title objections (the. "Title Cure Period ");
provided, however, the Title Cure Period was extended for an additional sixty (60)`days if Seller
was unable to cure or remove the title objections within the initial thirty (30) day period.
C. Seller .was- unable to cure or remove the title objections within the initial thirty
(30) day Title Cure Period nor during the additional sixty (60) day extension of the Title Cure
-Period. _
D'. Seller and City entered into a First Amendment to Agreement of Sale and
_ Purchase of Real Property dated August 2, 2010 ("First Amendment "). Paragraph 1 of the First
_ Amendment extended the Title Cure Period until August 20, 2010 (time being of the essence).
E. ' . Seller was unable to cure or remove the title objections by August 20, 2010 and
many of the title objections still remain uncured as of the date hereof. Accordingly, City .
currently has the right to terminate the Agreement.
F. City also has the right to terminate the Agreement pursuant to paragraph 2 of the
First Amendment.
G. Seller and City agree that the remaining title objections (the ``Title Objections ")
are the following items reflected on the title commitment attached hereto and made a part hereof
as Exhibit A ( "Title Commitment "):
(i) all items shown on Schedule B- 1, than item 1 thereof;
any items hereafter pursuant to item 1 of Schedule B -2 thereof.
H. In an effort to cure some of the Title Objections, Seller has filed a Quiet Title
Lawsuit styled Michael F. Dallet IV, Plaintiff v. Marsha Victoria Linder et al in the Circuit Court'
of the 1 lth Judicial Circuit in and for Miami -Dade County, Florida. (Case No. 70 -55087 CA -4)
(the "Quiet Title Action ")
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I. The Title Objections shall be deemed cured or removed only if and when the Title
Commitment has been endorsed by the Title Company to eliminate them from the Title
Commitment and the Quiet Title Action has been completed with verdict for the Plaintiff on all
counts and all appeal periods have expired with no appeal having been taken.
NOW, THEREFORE, in consideration of the premises and other valuable
considerations, Seller and City agree as follows:
1. Incorporation of Recitals Seller and City agree that the Recitals are correct and
are hereby incorporated into and made a part of this Second Amendment by reference.
2. Extension of Title Cure Period Seller and City hereby agree that the Title Cure
of the essence. Seller
Period is hereby extended until April 19, 2011 at 5:00 p.m., time being �
shall use diligent and good faith efforts to cure all Title Objections prior to expiration of the Title
Cure Period. Without limiting the generality of the foregoing:
(a) Seller shall diligently pursue the, completion of the -Quiet Title Action..
(b) Seller shall work diligently with the Title Company to obtain the Title
Company's, approval as to the manner of resolving all Title Objections; and
(c) Seller shall cause all Monetary Liens to be released or satisfied on or
before Closing Date. As used herein, "Monetary Liens" means any. liens, mortgages, and other,
encumbrances that can be satisfied or released upon payment of money.
3. Purchase Price Adjustment. The Purchase Price is hereby reduced by $100,000,
thereby resulting in the Purchase Price being $4,875,000. All references to the "Purchase Price"
contained in the Agreement or any present or future amendment thereto shall mean and refer to
the reduced Purchase Price. The foregoing reduction is made to compensate City for the delayed
Closing Date, additional costs incurred by City, and in consideration for City's agreement to
enter into this Second Amendment. The Purchase Price as amended hereby shall be subject to all
prorations and adjustments required by the Agreement..
4. Pre - Closing On March 2 .), 2011 at 10:00 a.m. ( "Pre- Closing Time "), Seller and
City 'shall conduct a Pre - Closing in the City Attorney's office (1700 Convention Center Drive,
Miami Beach, Florida) or, if both parties agree, another location in Miami -Dade County. At the
Pre- Closing all Closing documents required by the Agreement shall be presented for review and
approval. Any .documents required to be signed by third part ies shall have been fully executed
and copies shall be available at the Pre Closing. Copies of any Closing documents may then be
sent for approval to the Title Company (and if not approved shall be amended as necessary but
shall not otherwise be amended). The Pre - Closing shall be held even if the City does not have
confirmation that all Title Objections have been cured as of the Pre - Closing Time.
5. First Amendment Modification. Paragraph 2 of the First Amendment is hereby
deleted.
6. Closing. Closing shall occur on or before April 21, 2011, ("Outside Closing
Date "), time being of the essence.
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7. No Further Extension; Consequences
(a) There shall be no further extensions of the Title Cure Period beyond - April
` 19, 2011 for any reason whatsoever;
(b) There shall be no further extensions of the Closing Date beyond April 21,
2011 for any reason whatsoever.
In. the event that all Title Objections have not been cured by April 19, 2011 for any
reason whatsoever or in the event that Closing has not occurred by April 21, 2011 for any reason
whatsoever, then and in that event:
(i) If the failure to timely satisfy or cure all Title Objections, or to
timely close the transaction results from Seller's default, City shall be entitled to all remedies
available under Section -11.2 of the Agreement, which provides that City, . at . its sole discretion,
may pursue its remedies at law and /or equity including, but not limited to, (a) terminating the
Agreement and /or (b) maintaining an action for specific performance;
(ii) If the failure to timely close the transaction is the result of City's
default, Seller shall be entitled only to its remedies under Section 11.2, which provides that
Seller's sole remedy is to terminate the Agreement and receive a sum equal to One Hundred
Thousand. Dollars ($100,000) as agreed and liquidated damages and in full settlement of all
claims against City. (the parties agreeing that Seller will suffer damages incapable of precise.
ascertainment and -that receipt of $100;000 is fair and reasonable and is liquidated damages and
not a penalty);
(iii) If failure to timely cure Title Objections or timely close the
transaction did not result from . Seller's default or City's default, the Agreement shall
automatically terminate -and neither party shall - -have any further rights or obligations to each
other. under the Agreement or otherwise.
If for any reason whatsoever, closing has not occurred on or before April
2'1, 2011,.the City Manager.is authorized to take any and all actions on behalf of the City to
terminate this Agreement and /or to pursue any 'rights or remedies available to City.
8. Pending Foreclosure Action; Quiet Title Action Seller has disclosed the
existence of a mortgage encumbering the Property securing a Monetary Lien held by Everbank
and the pending foreclosure action filed against the Property by Everbank. Seller further
represents that other than (a) the need for the Monetary Lien held by Everbank to be satisfied or
released and for the pending foreclosure action to be dismissed, and (b) the needao complete the
Quiet Title Action, Seller is not aware of any facts or circumstances that will prevent Closing
from occurring on or before the Outside Closing Date.
9. General Release By execution hereof, Seller for itself and its officers, directors,
shareholders and principals, and Ronald Bloomberg, individually, (all of the foregoing "Seller
Parties ") hereby fully and unconditionally 'release City- and its commissioners, employees,
administrative executives, staff, and attorneys and their respective successors and assigns.
( "Releasees ") from any and all manner of actions, causes of action,' contracts, agreements,
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covenants, controversies, claims, and demands whatsoever, whether legal or equitable, known or
unknown, fixed or contingent, relating to the Property or the Agreement or relating to Everbank
or any discussions with Everbank from the beginning of the world until the Effective Date of this
Second Amendment, except for City's obligation to complete the closing of the Agreement if
and only if all conditions and requirements of -the Agreement as modified hereby are met (but
any default by City with respect thereto shall be limited to liquidated damages as specified in
Section 11.1 of the Agreement). The provisions of this paragraph 9 shall survive any termination
or closing of the Agreement. At Closing or upon termination Seller and Ronald Bloomberg and
City shall execute a mutual release that will be effective through the date of Closing or
termination, as applicable, with respect to the Property and the Agreement and Everbank, except
that in the event Closing occurs, the release shall not apply to:
(a) any' rights or obligations of either party under this Agreement or any
documents executed at Closing that survive Closing; nor
(b) any matters that would adversely affect City's rights to pursue claims with
respect to the Chevron Indemnity.
10. Ratification As amended hereby, 'the Agreement as amended by the First
Amendment shall remain in full force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, Seller and Buyer have executed this Second Amendment as .
of the date set forth above.
SELLER:
Witnessed by: AMERICAN RIVIERA REAL ESTATE
COMPANY, a Florida corporation
Print Name: 'Awl A c, By:
Name: a�✓ l rt
Title: &95;q&
Date: /p
MiN e: 4
JOINDER
Ronald Bloomberg. hereby joins in this Second Amendment Tor the sole purpose of .
agreeing to .paragraph 9.
RONALD G
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CITY OF MIAMI BEACH, FLORIDA, a
r municipal corporation
Witnessed by:
By:
Name
Pi Na o g_ Title: M o2
Date: IUIM el
Print Name: g v 0-
ATTEST:
B Y : �v� [Seal]
INCORP ORATE[::
C�
R CW ,
APPROVED AS TO
FORM & LANGUAGE
FOR EXECUTION
Ci At omay Data
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