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279-97 RDA incomplete RESOLUTION NO. 279-97 A RESOLUTION OF THE CHAIRMAN AND THE MIAMI BEACH REDEVELOPMENT AGENCY, APPROVING A PURCHASE AND SALE AGREEMENT IN THE AMOUNT OF $670,000 FOR THE PROPERTY LOCATED AT 224 23RD STREET, MIAMI BEACH, FLORIDA, AS A POTENTIAL SITE FOR THE CULTURAL CENTER; AUTHORIZING THE CHAIRMAN OF THE MIAMI BEACH REDEVELOPMENT AGENCY AND SECRETARY TO EXECUTE THE PURCHASE AND SALE AGREEMENT SUBJECT TO THE AFOREST A TED TERMS. WHEREAS, the City of Miami Beach (the "City") and the Miami Beach Redevelopment Agency ("RDA") are proceeding with their goal of economic stimulation and development by assisting in the development of a cultural center, consisting of a Metro-Dade Regional Library, the site for the Miami City Ballet facility, a parking garage, and other related facilities (the "Cultural Center") within the City Center/Historic Convention Village Redevelopment and Revitalization Area; and WHEREAS, for the purpose of realizing the Cultural Center project, the RDA must acquire, by purchase, donation or eminent domain, property located at 224 23rd Street, Miami Beach, Florida (the "Property"), being legally described on Exhibit "A" attached hereto and incorporated by reference herein; and WHEREAS, the Mayor and City Commission, by Resolution No. 92-20646, and the Dade County Commission, by Resolution No. R-14-93, declared the arer known as the City Center/Historic Convention Village Redevelopment and Revitalization Area, which includes the Properties, to be a Redevelopment Area in which conditions of slum and blight have been demonstrated to exist; and WHEREAS, on July 2, 1997, the Chairman and Members of the RDA approved a Resolution, finding, determining, and declaring the acquisition of the Property to be a public necessity and in the best interest of the City, and further authorizing the RDA to institute eminent domain proceedings on the Property to acquire fee simple title to same for use in connection with the City CenterlHistoric Convention Village Redevelopment and Revitalization Area Cultural Center project; and WHEREAS, the City has appropriated funds for acquisition and construction of components of the Cultural Center, including, but not limited to, the Metro-Dade Regional Library, the site of the Miami City Ballet facility, a parking garage and other related facilities and such funds will be made available to the RDA; and WHEREAS, the appraiser, J.B. Alhale & Associates, has submitted his appraisal on the Property, certifying a value of$630,000 on the Property; and WHEREAS, a Purchase and Sale Agreement for the acquisition of the Property for a purchase price of $670,000 has been negotiated, and is attached and incorporated herein as Exhibit "B;" and WHEREAS, it is in the best interest of the Agency to purchase the Property and avoid the expenses of an eminent domain proceeding. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairman and Miami Beach Redevelopment Agency herein approve the attached Purchase and Sale Agreement in the amount of $670,000 for the Property located at 224 23rd Street, Miami Beach, Florida, as a potential site for the Cultural Center; and herein authorize the Chairman and the Secretary to execute the Purchase and Sale Agreement subject to the aforesaid terms. PASSED AND ADOPTED THIS 16TH DAY APPROVED AS TO FORM & LANGUAGE & FOR EXECUnON ATTEST: rlo ~O r etA tL-- SECRETARY .nc.y .'l'1r,-J /!~;/ /'} <- Date F:IA TTOILEVLIRESOLUTSICUL TCTR I.RDA EXHIBIT A 224 23rd Street Miami Beach, Florida Legal Description Lots 7, 9 and 11, less the northern 10 feet for right-of-way, and the northern 25 feet of Lots 10 and 12, Block 2, Miami Beach Improvement Company Subdivision, as recorded in Plat Book 5, Page 7 of the Public Records of Dade County, Florida. Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673-7193 Fax: (305) 673-7772 REDEVELOPMENT AGENCY MEMORANDUM NO. 97- 23 DATE: July 16, 1997 TO: Chairman and Members of the Board of the Redevelopment Agency FROM: Jose Garcia-Pedrosa Executive Director ~w l SUBJECT: ACQIDSITION OF THE PROPERTY IDENTIFIED AS 224 - 23RD STREET WITHIN THE SITE OF THE PROPOSED CULTURAL, CENTER RECOMMENDATION: Approve the Resolution. BACKGROUND: As directed by the City Commission at the June 18, 1997 meeting at which the plans for the proposed Cultural Center were presented and approved, the Administration attempted to negotiate with owners and lessees of the property identified for this purpose. On June 30, 1997, a negotiation session was held with John King, the owner of the property identified as 224 23rd Street as described in the attached legal description. At that time, an agreement to purchase said property at a price of $670,000 was reached. This amount is $40,000 above the appraised value of $630,000 established in the report prepared by J.B. Alhale and Associates in May, 1997. The Purchase and Sale Agreement, a copy of which is attached, includes provisions regarding environmental issues and establishes a closing date on or before September 16, 1997. The Administration believes that the established purchase price is justified, particularly in light of attorney fees, other types of fees and cost, and the potential of a higher price for acquisition that could be associated with a taking by eminent domain. This site is within the City Center/Convention Village Historic Village and was identified in the approved Redevelopment Plan for this area as a potential site for eminent domain. At today's meeting, the second reading of the Ordinance authorizing such takings by eminent domain for the Cultural Center is scheduled for action. S()lJTti V()I~r= Vedevel{)pment Ulstnc::t CIIT Cr=~Tr=V Vedevel{)pment Uistrict AGENDA ITEM 3-A July 16, 1997 ANALYSIS: Based on the information provided above, the Administration considers proceeding with the agreement to purchase this parcel to be in the best interest of the objective of assembling a site for a Cultural Center. This parcel, at 19,750 sq. ft., represents 41 % of the library site (a total of 48,500 sq. ft.). The Administration will continue to meet with owners and lessees of properties within the designated site to attempt to negotiate agreements. In the event that closure cannot be reached with these entities, the Administration will utilize the powers of eminent domain to enable the assemblage of the site for a Cultural Center. CONCLUSION: It is recommended that the Agency Board approve the attached Resolution authorizing acquisition of the above-described property as agreed to in the Purchase and Sale Agreement. V JGPIHSIv1:jph Attachments PURCHASE AND SALE AGREEMENT This Purchase and Sale Agreement (the "Agreement"), dated . 1997 by and between POLKIN, INC., a [Florida] corporation ("Seller"), and MIAMI BEACH REDEVELOPMENT AGENCY, a Florida municipal corporation ("Buyer"): WITNESSETH: In consideration of the mutual agreements herein set forth the parties hereto agree as follows: 1. Definitions. The following terms when used in this agreement shall have the following meanings: 1.1 "Acceptance Date" means the Effective Date. 1.2 "Buyer" means Miami Beach Redevelopment Agency, a Florida municipal corporation. 1.3 "Buyer's Attorney" means the General Counsel of the. Miami Beach Redevelopment Agency, City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139. 1.4 "Cash to Close" means the balance of the Purchase Price subject to the adjustments and prorations as hereinafter described. 1.5 "Closing" or "Close" means the delivery of the Deed and other closing documents to Buyer concurrently with the delivery of the Purchase Price to the Seller as hereinafter provided. 1.6 "Closing Date" means , 1997 at 10:00 a.m., or such other date and time as may be determined in accordance with this Agreement. 1.7 "Deed" means the Statutory Warranty Deed which conveys the Property from Seller to Buyer. 1.8 "Effective Date" means the latest date this Agreement is executed by either Buyer or Seller, notwithstanding that this Agreement shall have been dated the date first written above. 1.9 "Governmental Authority(ies)" means any federal, state, county, municipal or other governmental department, entity, authority, commission, board, bureau, court, agency or any instrumentality of any of them which has jurisdiction over the Seller, the Buyer, or the Property . 1.10 "Governmental Requirements(s)" means any law, enactment, statute, code, ordinance, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, agreement, or other direction or requirement of any Governmental Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued applicable to the Seller, the Buyer, or the Property or to any appurtenance, structure, use or facility, on or adjacent to, or proposed for, the Property. 1.11 "Permitted Exceptions" means those matters set forth on Exhibit "A" attached hereto and made a part hereof, as same may be supplemented in accordance with Paragraph 4.2 of this Agreement. 1.12 "Property "means the land located at 224 23rd Street, Miami Beach, Florida, and legally described as Lots 7, 9 and 11, less the northern 10 feet for right-of-way, and the northern 25 feet of Lots 10 and 12, Block 2, Miami Beach Improvement Company Subdivision, as 3 recorded in Plat Book 5, Page 7 of the Public Records of Dade County, Florida (the "Land"), together with the Property Rights (as defined herein). 1.13 "Property Rights" means all of Seller's right, title and interest, if any, in and to: all site improvements of the Land: all tenements, hereditaments, rights, privileges and appurtenances relating or belonging to the Land or in anywise appertaining; any and all easements; all water and sewer access and water and sewer use rights and allocations; all storm water drainage, use rights and allocations; all utility hookup and service rights; all grants, rights or other agreements affecting the land or comprising the Permitted Exceptions; all permits, licenses and grants of right, now existing or hereafter arising with respect to the Land; any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof, and to any strips or gores adjoining the land or any part thereof and, subject to the provisions of this Agreement, any and all sums of money and rights to receive money which Seller has or may acquire by reason of the taking by lawful authority throughout exercise of eminent domain or deed or agreement in lieu thereof of any rights, property or thing of value described herein or any part thereof, including any award or payment made or to be made by reason of the change of grade of any street. Seller shall execute and deliver to Buyer, at Closing and any time thereafter on demand, all proper instruments for the conveyance and assignment of such title and the assignment and collection of any such award, which conveyance shall be free and clear of any liens, claims, outstanding bills and encumbrances. 1.14 "Purchase Price" shall means $670,000, subject to prorations and adjustments. 1.15 "Seller" means Polkin, Inc., a corporation. 1.16 "Seller's Attorney" means 1.17 "Title Commitment" means that Title I nsurance Commitment to be issued by the Title Company through its duly authorized agent as selected by Buyer proposing to insure Buyer's purchase of the Property. Buyer may use a pro forma commitment or status of title report as the Title Commitment. 1.18 'Title Company" means such AL T A member title underwriter selected by Buyer. 1.19 "Title Policy" means an AL TA Form B (most current marketability form) owner's title insurance policy, issued pursuant to the Title Commitment, with the standard exceptions deleted including for survey matters, the gap, parties in possession and liens, which title policy shall be in the amount of the Purchase Price, insuring Buyer's title to the Property, subject only to the Permitted Exceptions. 2. Purchase and Sale. Seller agrees to sell and convey the Property to Buyer and Buyer agrees to purchase and acquire the Property from Seller on the terms and conditions herein set forth. 3. Purchase Price. The Purchase Price shall be $670,000, subject to prorations and adjustments. 4. Evidence of Title. 4.1 Title Commitment. Within 10 days after the Effective Date, Seller shall deliver to Buyer either (a) an abstract of title prepared or brought current by a reputable and existing abstract firm (if not existing, then certified as correct by an existing firm) purporting to be an accurate synopsis of the instruments affecting title to the Property recorded in Dade County, Florida Page 2 4 through the Effective Date and which shall commence with the earliest public records, or (b) an existing title insurance policy issued by and AL T A member title underwriter, which policy is qualified to be used as a base for reissuance of coverage on the Property, together with abstract continuation from the effective date of said policy or together with a computer print out. Buyer shall promptly cause the Title Company to issue a Title Commitment. The Title Commitment shall name the Buyer as the proposed insured, shall provide for the proposed issuance of a Title Policy for the full amount of the purchase price and shall provide for the Title Company to insure the "gap" upon delivery of appropriate documentation by Seller and the deletion of the standard printed exceptions upon delivery of the customary documentation from Seller. 4.2 Examination of Title. Buyer shall, within 30 days after receipt of the Title documentation referred to in Paragraph 4.1 (a) above or within 15 days after receipt of the Title documentation referred to in Paragraph 4.1 (b) above, notify Seller in writing of any objections tot tiel (the ''Title Notice"). All exceptions in Schedule B-Section II of the title Commitment not raised as objectionable by Buyer shall be deemed "Permitted Exceptions" and Exhibit "A" of this Agreement shall be deemed to be supplemented to include same. Seller shall have 30 days from receipt of Buyer's Title Notice within which to cure or attempt to cure the title objections and Seller agrees to use its best efforts to do so and Seller shall be obligated to cure or correct any title objections, including encumbrances, mortgages and liens that can be cured and paid or satisfied at the time of Closing. Title objections requiring payment of money to cure shall be paid by Seller from its own funds prior to Closing or from the cash to close at Closing. If Seller is unsuccessful in curing and removing such title objections to the satisfaction of the Title Company and Buyer within said 30 day period, then Buyer shall have the option of either (a) terminating this Agreement, or (b) accepting the title in its existing condition with a reduction in or credit against the purChase price for (1) any existing mortgages, liens, encumbrances and any Seller created title objections (or title objections arising out of an agreement to which Seller is a party or which is known to Seller), whether or not currently existing, which can be cured, removed of record or satisfied by the payment of a liquidated sum, and (2) up to $100,000 for any other title objections which can be cured, removed of record or satisfied by the payment of a liquidated sum. Seller agrees and represents that it will use good faith best efforts to correct all such title objections, including curing or satisfying all Schedule B-Section 1 requirements and removing Schedule B-Section II exceptions which are not Permitted Exceptions, within the time periods set forth in this Paragraph, but in any event by Closing, all of which shall be continuing obligations of Seller. Buyer may update the title and the Title Commitment before Closing and Buyer may raise as title objections in subsequent Title Notice and matters revealed by such update and Seller shall cause same to be cured, removed of record or satisfied within 30 days from the date of receipt of the subsequent Title Notice within 60 days form the date of such notice. Upon timely curing the title objections, the Seller may, upon at least (10) business days prior written notice form Seller to Buyer, reset the Closing Date to another business day not to exceed 30 days after the curing of the title objection. Notwithstanding the aforementioned, Seller shall have no obligation to file any lawsuits to cure any title objections raised in the Title Notice. Buyer shall not have the right to object to title by reason of any title matter which is caused by Buyer. 4.3 Title Policy. The Title Policy shall be issued by , as agent for the Title Company, pursuant to the terms of the Title Commitment, as endorsed by any endorsements issued subsequent to the effective date of the Title Commitment. All costs and expenses relating directly to the Title Commitment (excluding the costs related to curing, removing and satisfying title objections), any endorsements, and the Title Policy premium, shall be paid by Buyer. Page 3 5 4.4 Survev. A. Within 5 days form the effective date, Seller shall deliver to Buyer a copy of any survey of the land. During the diligence period (as defined below), as part of the Buyer's diligence, the Buyer may obtain, at its expense, one or more surveys (the "Survey") of the Land containing such details and certifications, and prepared under such format, as Buyer may require. At Buyer's option, the Survey may be updated to show the location of any title matter of record, whether or not same are Permitted Exceptions, and such other matters as requested by Buyer or Title Company. B. If the Survey (or any update thereof) shows any encroachment on the Land, or that any improvement located on the Land encroaches on the land of others, or if the survey shows any other defect or objection to Buyer, including any matter which would affect either the marketability of title to the Property or the use of the Property, such encroachment or defect or objection shall be treated in the same manner as title defects and objections are treated under Paragraph 4.2 of this Agreement. 5. Inspections and Entry on Property. Buyer shall have a period of time (the "Diligence Period") to make inspections, studies, tests (including soil and environmental tests), copies, plans and surveys, and otherwise perform diligence as required by Buyer with respect to the Property. The Diligence Period shall commence with the Effective Date and terminate 5 p.m., Eastern Time, on the later of (i) sixty (60) days after the Effective Date, or (ii) , 1997, or on the next business day after either of said dates if same is not a business day. If, within said Diligence Period, the Buyer for any reason, determines in its sole discretion that the Property is not satisfactory, the Buyer shall so notify the Seller of its election not to proceed hereunder. In that event, this Agreement shall be deemed terminated and the parties shall be relieved of all further obligations. If the Buyer fails to notify Seller within the Diligence Period, the condition of the Property shall be deemed acceptable by the Buyer. Between the Effective Date and the Closing, the Buyer, through its authorized agents, personnel, employees and independent contractors, shall have the right of entry upon the Property in order to make any and all inspections, studies, tests, copies, plans and survey so the Property, all as Buyer may deem necessary or appropriate. Any such inspections shall be at the cost of Buyer and by personnel selected by Buyer. Buyer acknowledges that all such inspections are for Buyer's informational purposes only. Seller agrees to provide continuous access to the property through Closing for the purpose of making any inspections studies, tests and surveys desired by Buyer. Seller agrees to provide to Buyer reasonable access to Seller's files regarding matter pertaining to the Property and the use of a copy machine to make copies thereof. Seller makes no warranties as to the condition of the Property except as specifically set forth in this Agreement. Notwithstanding the foregoing, Buyer may reinspect the condition of the Property on or before the Closing Date and Buyer may terminate this Agreement if, in Buyer's reasonable judgment, there is any adverse condition of the Property revealed by such reinspection which arose after the expiration of the Diligence Period. 6. Seller's Representations and Warranties. Seller hereby represents and warrants to the Buyer the following matters. The representations and warranties shall all be true and correct as of Closing and shall be certified, confirmed and updated by the Seller at Closing by delivery of a Certificate as of the Closing Date in a form reasonably acceptable to Buyer as of and through the date of Closing and as an inducement to the Buyer to Close under this Agreement. 6.1 Seller's Authority and Performance. Seller has legal right and ability to sell the Property pursuant to this Agreement. The execution and delivery of this Agreement by Seller and the consummation by Seller of the transaction contemplated by this Agreement is within Seller's capacity and all requisite action, corporate and otherwise, has been taken to make this Page 4 6 Agreement valid and binding on Seller and its partners and their respective officers, directors, shareholders and creditors, in accordance with its terms. Seller is not a foreign entity and there is no requirement for withholding of any portion of the Purchase Price for Federal income tax purposes and an appropriate affidavit to the foregoing effect will be delivered at Closing. Seller will promptly pay for, perform and comply with all covenants, agreements, representations and warranties contained in this Agreement. 6.2 No Legal Bar. The execution by Seller of this Agreement and the consummation by Seller of the transactions hereby contemplated does not, and on the Closing Date .will not, result in a breach of, or default under, any indenture, agreement, lease, instrument or obligation to which Seller is a party and which affects all or any portion 0 the Property, or to Seller's knowledge, constitutes a violation of any Govemmental Requirement. To Seller's knowledge, the Property is not the subject of a right of first refusal, option, lease, use agreement, or agreement to purchase, or any restriction on sale in favor of any other person or entity. 6.3 No Default or Insolvency. Seller is not in default under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or obligation to which Seller is a party or which affects' any portion of the Property. Seller is not insolvent and will not be rendered insolvent by this Agreement or the consummation of the transactions contemplated hereby. 6.4 Title. Seller is the owner of the Property in fee simple absolute and has good and marketable title to the Property, free and clear of all liens, encumbrances and restrictions of any kind, except the Permitted Exceptions and encumbrances of record which, subject to Paragraph 4.2, will be paid by Seller from its own funds at Closing or from the funds delivered by Buyer at Closing. The Seller is not a party to, and the Property is not affected by, any service, maintenance or property management agreement, declaration of condominium, homeowner's agreement, restrictive covenants, or any contract or other agreement of any kind except those described in the Permitted Exceptions, and no such agreements and documents will be binding upon the Property or the Buyer of the Property after Closing. The total of all debts, mortgages, liens and encumbrances affecting the Property are less than the Purchase Price and the Cash to Close shall be applied to satisfy and fully pay for all such times before any distribution thereof to Seller. Seller shall not further encumber, mortgage or lien the Property in any respect which would prevent Closing in accordance with the terms of this Agreement. 6.5 Litigation. There are no actions, suits, violations, citations, claims, notices, pi'oceedings or investigations pending or, to the knowledge of Seller, threatened against Seller or the Property affecting any portion of the Property, except as set forth in Exhibit "B." To the extent there are any times on Exhibit "B," said times shall be dismissed with prejudice or otherwise cured and resolved to Seller's satisfaction prior to closing. 6.6 Environmental Condition and Environmental Audit. Seller has not received any notice from any person, entity or Govemmental Authority regarding any actual or potential adverse environmental condition or any Adverse Environmental Substances on, about or under the Property. As a condition to closing, there shall not be used, manufactured, located, stored or disposed of on, under or about the Property any Adverse Environmental Substances. The term "Adverse Environmental Substances" is defined to mean asbestos, radon, PCB's, oil or other petroleum based products, chemicals, any noxious, hazardous, offensive, explosive or toxic substances or water, or any "Hazardous Materials" or "Toxic Substances," as such terms are defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601 et. seq., Hazardous Materials Transportation, 49 U.S.C. 1801, et. seq., the Resource Conservation and Recovery Act., 42 Page 5 7 U.S.C. 6901, et. seq., and in the regulations adopted in publications promulgated pursuant to any of the above stated laws, which remains on the Property or which would require any cleanup, treatment or other action pursuant to any applicable law or any environmental audit of the Property. Not later than 30 days after the Effective Date, Seller shall obtain and deliver to Buyer a Phase I Environmental Property Assessment Audit on the Property prepared by an environmental engineering and consulting firm reasonably acceptable to Buyer, together with such further tests, audits and reports as shall be recommended by an such reports (collectively "Environmental Audit"). The Environmental Audit shall be addressed to and certified to Seller and Buyer and any successor and assign of Buyer and any lender which may encumber the Property with a mortgage. If the Environmental Audit indicates any adverse environmental condition or the suspicion thereof, or that any Adverse Environmental Substances are on, under or about the Property, or recommends any further study or remedial work, then Buyer's acceptance of the Property and the Environmental Audit shall be conditioned upon all the work being performed and the delivery to Buyer of an updated Environmental Audit which shall indicate, among other things, that there is not presence or suspicion of the presence of any of the above-mentioned materials or substance on and about the Property. The final Environmental Audit shall reflect, if applicable, that any tank or other conditions and materials on or under the Property shall have been properly removed and abandoned, and any affected subsurface or surface soils shall be properly removed and disposed and any soil stains in the surface shall be properly removed and disposed and any surface or subsurface debris shall be properly removed and disposed. Further, the Environmental Audit shall include soil test and groundwater test results, if required, and, if applicable, a statement as to any cleanup, treatment, monitoring, removal or other remedial action which has occurred on the site. The final Environmental Audit shall not require or recommend any remedial action which has occurred on the site. The Environmental Audit shall not require or recommend any remedial action, treatment or monitoring with respect to the Property or any neighboring property. To the extent any environmental conditions are revealed and require treatment, cleanup or remediation in order for an Environmental Audit to be issued which meets the criteria of this paragraph, then the Seller agrees, at its expense, to remediate and remove such adverse environmental conditions to the effect that the clean Environmental Audit shall be issued by the Closing Date without reference to any such adverse environmental conditions. In such event, the Closing Date shall be extended to a date which is 14 business days after Buyer's receipt of an Environmental Audit without reference to the adverse environmental conditions (and indicating that any treatment, cleanup, recommendations and remediation has been completed), except that the Closing Date shall not be extended by more than 120 days without the Buyer's written approval. Notwithstanding anything to the contrary contained herein, Buyer will pay the first $5,0000 of any costs incurred with respect to environmental testing and remediation of the Land, and Seller shall be responsible for the next $10,000 of such expense. In the event that such expense exceeds $15,0000, Seller may terminate this Agreement with no further liability or loss to either party or Buyer may, at its sole option, assume the additional cost and expense of such environmental remediation. In all events, environmental remediation issues shall be brought to closure not later than January 16, 1998, after which Seller shall have no obligation or financial responsibility for environmental remediation. Seller's portion of the cost and expense of environmental remediation shall be withheld by Buyer from the Purchase Price and applied solely to the cost and expense of environmental remediation of the Land. Any balance remaining upon completion of such environmental remediation shall be promptly paid to Seller, but in no event shall such payment be made later than January 16, 1998. Page 6 8 6.7 Parties in Possession. There are no parties other than Seller in possession or having a right to possession of any portion of the Property other than Buyer in accordance with this Agreement. 6.8 No Other Representations and Warranties. Except as expressly set forth in this Agreement, Seller has not made any warranties or representations concerning the Property or any component therein, including, without limitation, the condition of Property and any improvements located thereon, the concurrency status of the Property, the zoning or other land use restrictions affecting the property, the compliance of the Property or any part thereof with any Governmental Requirement, the use or existence or prior use or existence of Hazardous Materials on the Property; or the accuracy or completeness of any statement or other matter previously disclosed to Buyer. Except as specifically provided for in this Agreement, there are no expressed or implied warranties given to Buyer in connection with the sale of the Property. Except as expressly set forth in this Agreement, Seller does hereby disclaim any and all warranties of merchantability, habitability and fitness that may be due from Seller to Buyer. 6.9 Survival. The aforementioned representations shall be true as of Closing and shall expressly survive the Closing and the Closing shall not be demand a waiver of any remedies for Seller not having completed or rendered true and correct any particular representation or warranty . 7. Buyer's Remedies for Seller's Failure of a Representation or Warranty. 7.1 If any representations or warranty set forth in this Agreement is not true and correct, then Seller shall notify Buyer in writing within two (2) days after Seller ascertains such condition, but in any event by Closing. 7.2 If, at Closing, any of Seller's representations or warranties set forth in this Agreement are not true, then Buyer may either; (a) terminate this Agreement by written notice thereof to Seller, in which event all monies expended by Buyer in connection with this Agreement shall be paid by Seller to Buyer upon demand, and shall in no event exceed $5,000 and which written notice shall include such supporting data as reasonably necessary, and thereupon the parties shall be relieved of all further obligations under this Agreement; or (b) elect to close under this Agreement notwithstanding the failure of such representation or warranty, provided, however, that any such election by Buyer shall not be a waiver of, and Seller shall remain obligated under, any of the other provisions of this Agreement including those relating to curing and paying for any title objections and the provisions relating to a Seller default. 7.3 Seller's representations and warranties under this Paragraph 7 shall survive Closing. 8. Condemnation. In the event of the institution of any proceedings, or any threat or notice thereof, by any Governmental Authority which shall relate to a proposed taking of any portion of the Property by eminent domain prior to Closing, Seller agrees to furnish Buyer with a copy of such notice of a proposed taking within five (5) business days after Seller's receipt of such notification or by Closing, whichever is earlier. In such event, then Buyer may, at its option, within twenty (20) days of Buyer's receipt of the notice of proposed taking, either (a) cancel this Agreement and this Agreement shall be deemed canceled; or (b) Close, in which case, Buyer will be entitled to receive the entire condemnation award; otherwise, the Purchase Price will not be affected by any Condemnation. Buyer shall notify Seller of its election within said twenty (20) day period. If Buyer elects not to so terminate this Agreement or fails to respond to Seller's notification of proposed condemnation proceedings within said twenty (20) days, then the parties hereto shall proceed to Closing and Seller shall assign Page 7 9 all of its right, title and interest in all awards in connection with such taking to Buyer. The parties acknowledge that the Property is a proposed site for condemnation by the Buyer and that, if this transaction shall close in accordance with the terms of this Agreement, then this transaction shall occur in lieu of any condemnation by the Buyer. 9. Buyer's Representations and Warranties. Buyer hereby represents and warrants to the Seller as of the Effective Date and as of the Closing Date that Buyer has full and complete authority to purchase the Property and to comply with the terms of this Agreement, and the execution and delivery of this Agreement by Buyer and the consummation by Buyer of the transactions hereby contemplated are within Buyer's capacity and all requisite action has been taken to make this Agreement valid and binding on Buyer in accordance with its terms. 10. Closing. The Closing shall commence at 10:00 a.m. on the Closing Date and shall take place at the office of Seller's attomey in Dade County, Florida, or at such other place and time as shall be mutually agreed upon by Buyer and Seller. 11. Seller's Closing Documents. At Closing, Seller shall deliver the following documents ("Seller's Closing Documents") to Buyer or Buyer's Attomey and title agent. Copies of Seller's Closing Documents shall be delivered to Buyer or Buyer's Attorney and title agent for review and approval at least three (3) business days prior to lhe Closing Date. 11.1 Deed. The Deed which shall be duly executed and acknowledged by Seller so as to convey to Buyer good and marketable fee simple title to the Property free and clear of all liens, encumbrances and other conditions of title other than the Permitted Exceptions. 11.2 Lien Affidavit. A lien affidavit in form reasonably required by Buyer attesting that, among other things, (a) no individual, entity or Governmental Authority has any claim against the Property under the applicable construction lien law, (b) no individual, entity or Governmental Authority is either in possession of the Property or has a possessory interest or claim in the Property, other than Buyer in accordance with this Agreement, (c) no improvements to the Property have bee made for which payment in full has not been made, and (d) the property is free of all lines, claims and encumbrances (other that the Permitted Encumbrances), and there are no outstanding bills pertaining thereto. 11.3 Gap Affidavit. An affidavit in form and content reasonably satisfactory to the Title Company to facilitate the insuring of the "gap;" Le., the deleting as an exception to the Title Commitment of any matters appearing between the effective date of the Title Commitment and the effective date of the Title Policy. 11.4 FIRPTA. A FIRPTA Non-Foreign Entity Transferor Certificate, Exemption Certificate or provide for withholdings, in accordance with Section 1445 of the Internal Revenue Code. 11.5 Form 1099-B. Such federal income tax reports respecting the sale of the property as are required by the Internal Revenue Code of 1986, as amended. 11.6 B-1 Requirements. Any documents required in Schedule B-1 of the title Commitment with the exception of any documents pertaining to the Buyer. 11.7 Representations and Warranties Certificate. A certificate of the Seller's President restating and confirming and certifying the truth and accuracy of, and the full payment and performance of, all of Seller's representations and warranties contained in this Agreement as of the Closing Date. Page 8 1100 11.8 Resolution. A certified resolution and incumbency certificate of the Seller (including Seller's directors and shareholders), authorizing the entering into, execution and consummation of this Agreement, and the consummation of the transactions herein contemplated and the incumbent officers, as applicable, authorized to execute documents for Seller. 11.9 Organizational Documents. A certificate of good standing and certified copies of the organizational documents, and as needed any document evidencing the qualifications to do business in Florida and any other documents reasonably required by Buyer and the Title Company. 11.10 Other Documents. Any other documents required by this Agreement which Seller is obligated to deliver or to cause to be delivered and any other documents reasonably required by Buyer and the Title Company. 12. Buyer's Closing Documents. At Closing, the Buyer shall deliver the following documents ("Buyer's Closing Documents"). Copies of Buyer's closing Documents shall be delivered to Seller or Seller's Attorney for review and approval not less than three (3) business days prior to the Closing Date. 12.1 Certification. A certificate of Buyer authorizing the entering into and execution of this Agreement and the consummation of the transaction herein contemplated. 12.2 Closing Statement. A Closing Statement showing all credits, costs, charges and other matters relating to the Property as set forth in this Agreement, including a tax proration agreement to incorporate the obligations set forth in Paragraph 14.1 of this Agreement. 12.3 Representations and Warranties Certificate. A certificate confirming the status of all of Buyer's representations and warranties as of the Date of Closing. 12.4 Cash to Close. The total amount of the Purchase Price, subject to prorations and adjustments. 13. Closing Procedure. The Closing shall proceed in the following manner: 13.1 Transfer of Funds. At Closing, Buyer shall wire transfer to Seller the Cash to Close or pay same by check. 13.2 Delivery of Documents. Buyer shall deliver Buyer's Closing Documents and Seller shall deliver Seller's Closing Documents to one another at Closing. 14. Closing Costs, Taxes, Prorations 14.1 Taxes. Real estate taxes ("taxes") shall be prorated as of Closing with maximum discount taken. Taxes shall be prorated based on amounts for the current year, except that if tax amounts for the current year are not available, prorations shall be made based on the taxes for the preceding year, with maximum discount taken. If, subsequent to Closing, taxes for the year of Closing are determined to be higher or lower than as prorated, a re-proration and adjustment will be made at the request of Buyer or Seller upon presentation of the actual tax bill, and any payment required as a result of the re-proration shall be made within ten (1) days following demand therefore. Page 9 11 - .-'.... 14.2 Seller's Closing Costs. Seller shall pay for the following items from its own funds at or before Closing: (a) All certified, confirmed or ratified special assessment liens though the date of Closing. If the improvements pertain to governmental improvements which improvements have been substantially completed as of the Effective Date, such liens shall be considered as certified, confirmed or ratified and Seller shall, at Closing be charged with an amount equal to the last estimate of the applicable governmental body of the amount of the assessment; (b) Matters required to be paid to obtain clear title subject to the limitations contained in Article 4; (c) All fees, assessments, costs and charges incurred to fulfill and perform the provisions of this Agreement; and (d) Documentary stamp tax and surtax to be affixed on the Deed. 14.3 Buver's Closina Costs. Buyer shall pay for the following items at the time of Closing: (a) the cost of recording the Deed; (b) the premium for the Title Policy; (c) the costs for Buyer's survey. 15. Possession. Full and complete possession of the Property shall be delivered to Buyer at Closing. 16. Default. 16.1 Buyer's Default. If this transaction fails to close due to a refusal or default by Buyer, and provided Seller is not in default of this Agreement and all conditions precedent to Closing are satisfied, the Seller shall give written notice to Buyer of each default and Buyer shall have ten (10) days to cure such default, excepting that Buyer shall not be entitled to any notice if it fails to close the within transaction on the Closing Date. If Buyer defaults by failing to close the within transaction on the Closing Date, and provided such failure to close is not due to a Seller default, then the Buyer shall be deemed in default hereunder without any further notice or right to cure. If Buyer so defaults and the default is not timely cured, then Buyer shall pay to Seller the sum of $ as agreed upon liquidated damages as a result of Buyer's default hereunder, and upon such payment this Agreement shall be terminated in which case neither Buyer nor Seller shall have any further obligation or liability hereunder or in connection herewith except as otherwise stated in this Agreement. Buyer and Seller acknowledge that if Buyer so defaults, Seller will suffer damages in an amount which cannot be ascertained with reasonable certainly on the Effective Date, and the $ liquidated damage payment will most closely approximate the amount necessary to compensate Seller in the event of such default. Buyer and Seller agree that this is a bona fide liquidated damage provision and not a penalty or forfeiture provision. 16.2 Seller's Default." If this transaction fails to close due to a refusal or default by Seller, Buyer shall give written notice to Seller of such default and Seller shall have ten (10) days to cure such default, excepting that Seller shall not be entitled to any notice if it fails to close the within transaction on the Closing Date. If Seller defaults by failing to close the within Page 10 ~,2 transaction on the Closing Date, and provided such failure to close is not due to a Buyer default, then the Seller shall be deemed in default hereunder without any further notice or right to cure. If Seller so defaults and the default is not timely cured, then Buyer shall have the right to seek to compel Seller's specific performance of this Agreement, or in the alternative, to cancel this Agreement, in which event, Seller shall pay to Buyer the sum of $ as agreed upon liquidated damages as a result of Seller's default hereunder, and upon such payment this Agreement shall be terminated in which case neither Buyer nor Seller shall have any further obligation or liability hereunder or in connection herewith except as otherwise stated in this Agreement. The foregoing shall be Buyer's sole remedies in the event of Seller's default hereunder and Buyer shall have no action against Seller for damages other than in connection with the failure of a representation or warranty which is discovered after closing or in connection with the Seller's default in failing to pay any sum contemplated by this Agreement as being required to be paid to consummate the within transaction. Buyer and Seller acknowledge that if Seller so defaults, and Buyer elects to cancel this Agreement in lieu of seeking specific performance, the Buyer will suffer damages in an amount which cannot be ascertained with reasonable certainty on the Effective Date and the $50,000 liquidated damage payment will most closely approximate the amount necessary to compensate Seller in the event of such default. Buyer and Seller agree that this is a bona fide liquidated damage provision and not a penalty or forfeiture provision. 17. Real Estate Brokers. Seller and Buyer represent and warrant to each other that neither of them has dealt or consulted with any real estate brokers, salesmen or finders in connection with this transaction. Seller and Buyer hereby mutually agree to indemnify, save and hold each other harmless from and against any and all losses, damages, claims, costs and expenses (including attorney's fees and expenses) in any way resulting form or connected with any claims or suits for a broker's or salesman's commission, finder's fee or other like compensation, made or brought by any person or entity resulting from its own acts, except as aforesaid. In the event that Buyer shall retain any third party broker, salesperson or consultant, Buyer shall be responsible for such party's commissions and/or fees. This provision shall survive Closing and the delivery of the Deed to Buyer. 18. Notices. Any notices required to be given by the terms of this Agreement or under any applicable law by either party shall be in writing and shall be either hand-delivered or sent by certified or registered mail, postage prepaid, return receipt requested, or sent via Federal Express or other similar courier service, and such notice shall be deemed to have been given when postmarked, when hand- delivered or when sent via courier service in accordance with the terms of this Paragraph. Such written notice shall be addressed as follows: To The Buyer: MIAMI BEACH REDEVELOPMENT AGENCY 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Executive Director Office: (305) 673-7010 Fax: (305) 673-7002 with a copy to: Murray H. Dubbin, General Counsel Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Office: (305) 673-7470 Fax: (305) 673-7002 Page 11 1~ To the Seller: Mr. John King President POLKIN, INC. Office: (305) Fax: (305) with a copy to: Office: (305) Fax: (306) Notice delivered to counsel for a party shall be deemed delivery of notice to the party. 19. Assignment. This Agreement is not assignable by Seller. This Agreement may be freely assigned by Buyer to the City of Miami Beach or, if a $50,000 deposit is place in escrow with an attorney selected by Buyer to secure the assignee's performance of this Agreement, whereupon the Buyer shall be released from any liability under this Agreement. Buyer must notify Seller of any such assignment in writing at least ten (10) days prior to the Closing Date. 20. Contract is in Lieu of Eminent Domain. Buyer represents and warrants that it is entering into this Agreement in lieu of the commencement of eminent domain proceedings. 21. Miscellaneous. All of the provisions of this Paragraph shall be deemed to survive Closing. 21.1 Counterparts. This Agreement may be executed in any number of counterparts, anyone and all of which shall constitute the Agreement of the parties. The paragraph headings herein contained are for the purposes of identification only and shall not be considered in construing this Agreement. 21.2 Amendment. No modification or amendment of this Agreement shall be of any force or effect unless in writing executed by both Seller and Buyer. 21.3 Attorneys' Fees. If any party obtains a judgment against any other party by reason of any litigation arising out of this Agreement, reasonable attorney's fees and costs may be recovered and may be included in such judgment. 21.4 Governing Law and Venue. This Agreement shall be interpreted in accordance with the laws of the State of Florida, both substantive and remedial. Venue shall be in Dade County, Florida. 21.5 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assignees of the parties hereto. 21.6 Computation of Dates. If any date computed in the manner herein set forth falls on a legal holiday or non-business day or non-banking day, then such date shall be extended to the first business day following said legal holiday or non-business day or non-banking day. Page 12 ~A~~ 21.7 Time is of the Essence. Time is of the essence with respect to all items stated in this Agreement. Failure of either party to close this transaction on the Closing Date without default on the part of the other party shall be considered a default in this Agreement. The provisions herein contained shall be strictly construed for the reason that both parties intend that all time periods provided for in this Agreement shall be strictly adhered to. 21.8 Acceptance Date. This Agreement shall be null and void and of no further force and effect unless a copy of same executed by Seller is delivered to Buyer by or before the close of business within five (5) days after the date of this Agreement first written above. 21.9 Maintenance of Property. The Property shall be maintained by Seller in the same condition as existed as of the Effective Date. 21.10 Signs. From and after the Effective Date, Buyer shall have the right (for no additional consideration) to utilize the Property for the installation of signs as required by the Buyer. Should the Buyer terminate this Agreement, then Buyer shall immediately remove all such signs and shall restore the Property to its condition existing prior to Buyer's termination, reasonable wear and tear excepted. 21.11 Buyer's Indemnification. Buyer shall indemnify Seller and hold Seller harmless from all claims and expenses for personal injury, property damage. an liens of any kind caused by Buyer or Buyer's agents, employees. or independent contractors arising out of Buyer's activity on the Property pursuant to paragraph 5 and Paragraph 21.10 and this indemnification shall include indemnification against money judgments, lien judgments. court costs and attomey's fees assessed against Seller or the Property, as well as court costs and attorney's fees incurred by Seller in defending such a claim against Seller or against the Property . 21.12 No Recordation of Agreement. This Agreement may not be recorded in any Public Records. 21.13 Drafting. This Agreement and Exhibits hereto have been negotiated at arms length by Seller and Buyer, and the parties mutually agree that for the purpose of construing the terms of this Agreement, or said Exhibits, neither party shall be deemed responsible for the authorship thereof. The provisions of this paragraph shall survive the Closing and delivery of the deed of conveyance. 21.14 Further Assurances. Each of the parties hereto, without further consideration, agrees to execute and delver such other documents, and to take such other action, whether prior or subsequent t 0 the Closing may be necessary to more effectively consummate the purposes or subject matter hereof. 21.15 Survival. Unless otherwise specifically stated to the contrary in this Agreement, the provisions of this Agreement and the applicable payment and performance obligations of the parties set forth in this Agreement shall survive Closing and delivery of the Deed of conveyance and shall survive termination of this Agreement, 21.16 Approval by Redevelopment Agency. This Agreement shall be binding upon the Buyer only after it has been approved at a public hearing by the Miami Beach Redevelopment Agency and signed by the Chairman or Vice Chairman for the Miami Beach Redevelopment Agency or another duly authorized person. Page 13 ~5 .. . ".r. IN WITNESS WHEREOF, each of the parties hereto has signed this Agreement under seal the day and year appearing below their respective signatures. WITNESSES: SELLER: POLKIN, INC., a Corporation By: (SEAL) John King, President [sole Director and sole Shareholder] Date: ,1997 ATTEST: BUYER: MIAMI BEACH REDEVELOPMENT AGENCY, a Florida municipal corporation By: (SEAL) Robert Parcher, Secretary Seymour Gelber, Chairman Date: , 1997 APPROVED AS TO FORM & lANGUAGE & FOR execunON a#-~ Gervofn' r",~1CJ Page 14 ..-c .' ~.~"> EXHIBIT A PERMITTED EXCEPTIONS TO BE INSERTED ~7 EXHIBIT B LITIGATION, VIOLATIONS, ETC. TO BE INSERTED ~8