Loading...
Resolution 94-21062 .4 RESOLUTION NO. 94=21062 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, RATIFYING THE PURCHASE OF THE PROPERTY LOCATED AT 1027 COLLINS AVENUE, MIAMI BEACH, FLORIDA, AT A PRICE OF $428,000, IN ACCORDANCE WITH THE TERMS OF THE PURCHASE AND SALE AGREEMENT DATED NOVEMBER 18, 1993, BETWEEN K.T.K.L. CORPORATION, AS SELLER, AND THE CITY, AS BUYER, AND FURTHER ACKNOWLEDGING THE CONFIRMATORY APPRAISALS RECEIVED BY THE CITY FOR THE PROPERTY, SHOWING VALUES OF $193,000 AND $380,000, RESPECTIVELY. WHEREAS, on November 17, 1993, the Mayor and City Commission approved Resolution NO. 93-20970, authorizing the Mayor and City Clerk to execute a Purchase and Sale Agreement (the Agreement) ' between the City of Miami Beach, Florida, as Buyer, and K.T.K.L. Corporation, as Seller, for the sale of the vacant lot located at 1027 Collins Avenue (the Property) , in the amount of $428; 000; and WHEREAS, the Mayor and City Clerk executed the Agreement on November 18, 1993; and WHEREAS, the purchase of the Property was contemplated to alleviate the critical parking shortage in the South Beach area of Miami Beach, in that the City intends to combine said Property with two adjacent vacant lots owned by the City, to build a parking facility to help meet the surrounding area needs; and WHEREAS, vacant lots such as 1027 Collins Avenue, located within the Historic District (the District) , are difficult to obtain and therefore, by acquiring the Property, the City could also avoid consideration, pursuant to discussion regarding the aforestated parking facility, demolition of certain historic buildings within the District; and WHEREAS, pursuant to the Agreement executed by the Mayor and City Clerk on November 18, 1993, the purchase price was set at $428, 000, subject to confirmation by two (2) MAI appraisals; and WHEREAS, the appraisals received by the City for the property showed values, respectively, of $193, 000 and $380,000. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby ratify the purchase of the property located at 1027 Collins Avenue, Miami Beach, Florida, at a price of $428, 000, in accordance with the terms of the Purchase and Sale Agreement for same, dated November 18, 1993, between K.T.K.L. Corporation, as Seller, and the City, as Buyer, and further acknowledge that the confirmatory appraisals received by the City for the Property show values of $193,000 and $380,000, respectively. PASSED and ADOPTED this 16'h day of aruary I 1994. f•Y•R ATTEST: j-r,1{A6V\Ck CITY CLERK FORM APPROVED c:\wp51\data\ktkl.res LEGAL DEPT. By -, cam I Date k iq- ` PURCHASE AND SALE AGREEMENT This Purchase and Sale Agreement (the "Agreement"), dated 0 le 1993 by and between K.T.K.L. Corporation, a Florida corporation ("S ler"), and CITY OF MIAMI BEACH, 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. The Acceptance Date shall be the Effective Date. 1.2 Buyer. City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139. 1.3 Buyer's Attorney. City of Miami Beach, City Attorney's Office, 1700 Convention Center Drive, Miami Beach, Florida 33139, 305/673-7470. 1.4 Cash to Close. The balance of the Purchase Price subject to the adjustments and prorations as hereinafter described. 1.5 Closing. 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. December 31, 1993 at 10:00 a.m., or on such other date as determined in accordance with this Agreement. 1.7 Deed. The Statutory Warranty Deed which conveys fee simple title subject to the accepted restrictions,covenants and conditions of record to the Property from Seller to Buyer. 1.8 Effective Date. The Effective Date shall be 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). 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 Requirement(s). 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. "Permitted Exceptions"means those matters set forth on Exhibit"B"attached hereto and made a part hereof, as same may be supplemented in accordance with paragraph 4.2 of this Agreement. f • 1.12 Property. The land legally described in Exhibit "A" attached hereto (the "Land") together with the Property Rights (as defined herein). 1.13 Property Rights. The Property Rights means all of Seller's right, title and interest, if any, in and to: all site improvements on 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(which title shall be conveyed by quit-claim deed); 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 through 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 anytime 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. The purchase price for the Property as set out pursuant to Paragraph 3. 1.15 Seller. K.T.K.L. Corporation, a Florida corporation, whose address is c/o Anthony Karpawich, Clevelander Hotel, 10th Street and Ocean Drive, Miami Beach, Florida 33139. 1.16 Seller's Attorney. Eugene J. Howard, Esq., Suite 800, 1111 Lincoln Road, Miami Beach,Florida 33139, (305)538-6361 (office)and(305) 532-1531 (telecopier). 1.17 Title Commitment. Title Commitment means that Title Insurance Commitment to be issued by the Title Company 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. The Title Company is such ALTA member title underwriter selected by Buyer. 1.19 Title Policy. An ALTA 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. 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 Four Hundred Twenty-eight Thousand Dollars ($428,000), plus other good and valuable consideration. The Purchase Price shall be subject to confirmation by December 17, 1993 by two (2) MAI Appraisals. The Appraisals shall value the Property at the highest and best use of the Property as of the date of the Appraisal. The appraiser shall be given such other and additional uniform criteria, if any, as the Buyer and Seller may agree upon. If neither of the Appraisals are at least Four Hundred Twenty-eight Thousand Dollars ($428,000) (i.e. equal to or greater - 2 - • than the Purchase Price), then the Buyer may, at its sole and absolute discretion, by written notice to Seller cancel this Agreement by December 17, 1993. 4. Evidence of Title. 4.1 Title Commitment. Within 35 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 through the Effective Date and which shall commence with the earliest public records, or (b) an existing title insurance policy issued by an ALTA 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 and name search of all entries reflecting all documents affecting the Property from the Effective Date of the Policy, and together with copies of all documents referred to in the policy and the computer print out. Buyer shall promptly cause the Title Company to issue a Title Commitment, with Buyer and Seller to share equally in the cost for same. 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 10 days after receipt of the title documentation referred to in Paragraph 4.1(b) above, notify Seller in writing of any objections to title (the"Title Notice"). 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, up to Ten Thousand Dollars ($10,000), including encumbrances, mortgages and liens that can be cured and paid or satisfied at the time of Closing, up to Ten Thousand Dollars ($10,000). 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 up to Ten Thousand Dollars ($10,000), 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), 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 Ten Thousand Dollars ($10,000) 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 a subsequent Title Notice any 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. In such event, the Closing Date shall be reset to a date set forth in Buyer's subsequent Title Notice within 60 days from the date of such notice. Upon timely curing the title objections, the Seller may, upon at least (10) business days prior written notice from 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. 3 - 4.3 Title Policy. The Title Policy shall be issued, 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 borne equally by Buyer and Seller. • 4.4 Survey. A. Within 5 days from the Effective Date, Seller shall deliver to Buyer a copy of any survey of the Land that it has in its possession. 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 matters of record 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 appraisals, 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) thirty (30) days after the Seller's execution and delivery of this Agreement to Buyer with all exhibits attached, or (ii) December 17, 1993 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 so 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 appraisals, inspections, studies, tests, copies, plans and surveys of 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 matters pertaining to the Property. Any such entry upon the Property shall be at Buyer's • own risk and expense. Any such entry shall be performed in such manner as to not cause damage to the Property, or, if any damage is caused, Buyer shall immediately repair same to its former condition. If Buyer does not terminate this Agreement during the Diligence Period, then Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to this Paragraph 5 and Buyer shall purchase the Property in "as is" condition as of the date of this Agreement, reasonable wear and tear excepted, and without any Seller representations or warranties as to the condition of the Property except as specifically set forth in this Agreement. Buyer acknowledges that, except for the Seller's representations specifically set forth in this Agreement, the Buyer shall be relying solely upon its own investigations as to the condition of the Property in deciding whether to purchase the Property and not on any representations or warranties of Seller as to the condition of the Property. - 4 - 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 the Effective Date (except as specifically set forth below) and all 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 transactions contemplated by this Agreement is within Seller's capacity and all requisite action, corporate and otherwise, has been taken to make this 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 of the Property, or to Seller's knowledge, constitutes a violation of any Governmental 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. There are no outstanding agreements, documents, obligations or other matters affecting the Property or the Seller, except those reflected in the Permitted Exceptions, which are binding or would be binding upon the Property on the Buyer of the Property after closing. 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 will be paid by Seller, up to Ten Thousand Dollars ($10,000) 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, 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 items before any distribution thereof to Seller, so long as they total less than Ten Thousand Dollars ($10,000). 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, proceedings 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 items on Exhibit"C", said items shall be dismissed with prejudice or otherwise cured and resolved to Seller's satisfaction prior to closing. - 5 - . 6.6 Environmental Condition and Environmental Audit. To Seller's knowledge, no person or entity has used, generated, manufactured, produced, stored or disposed of on, under or about the Property or transported to or from the Property any asbestos, pcb's, oil or other petroleum based products, chemicals, any noxious, offensive, explosive or toxic substances, 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 THE 9601. et. seq., Hazardous Materials Transportation, 49 THE 1801. et. seq., the Resource Conservation and Recovery Act, 42 THE 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. Within the inspection period set forth in Paragraph 5, at Buyer's expense, but with Seller giving Buyer a credit at closing in the amount of Seven Hundred Fifty Dollars ($750.00) for the following, at least 30 days before the Closing Date, the Buyer shall conduct a Phase I Environmental Audit • (the "Environmental Audit"), from a licensed engineering firm reasonably acceptable to Buyer which Environmental Audit shall conform to the requirements of this paragraph. The Environmental Audit shall be addressed to and certified to Buyer and its successors in interest and Buyer's Attorney and shall indicate, among other things, that there is no presence or suspicion of the presence of any above-mentioned materials or substances, including radon, on and about the Property. The Environmental Audit shall reflect that any storage tank/oil burners 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 on the surface 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 Environmental Audit shall not require or recommend any remedial action, treatment or monitoring with respect to the Property. To the extent new adverse environmental conditions arise prior to closing which were not revealed by the Phase I Report and which are necessary to be treated, cleaned or remediated in order for an Environmental Audit to be issued which meets the criteria of this paragraph, then the Seller agrees to expend up to Ten Thousand Dollars ($10,000) to remediate and remove such new adverse environmental conditions to the effect that the Environmental Audit can be issued by the Closing Date without reference to any such new adverse environmental conditions. The Buyer may terminate this Agreement if the treatment,clean up and remedial costs relating to the new adverse environmental conditions exceed Ten Thousand Dollars ($10,000) and the Seller refuses to pay all of the treatment, cleanup and remedial costs and to perform the treatment, cleanup and remediation. 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 thereof, 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, and Buyer accepts the disclaimer. 7. Buyer's Remedies for Seller's Failure of a Representation or Warranty. - 6 - • 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, which written notice shall include such supporting data as reasonably necessary, and shall in no event exceed Ten Thousand Dollars ($10,000), 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. 7.3 Seller's representations and warranties under Paragraph 6 shall terminate thirty (30) days after the Closing Date. 8. 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. The Buyer's representations and warranties under this Paragraph 8 shall terminate thirty (30) days after the Closing Date. 9. Closing. The Closing shall commence at 10:00 a.m. on the Closing Date and shall take place at the office of Seller's attorney in Dade County, Florida, but in no eve shall said closing occur later thane N o / l c c14_ tip 10. Seller's Closing Documents. At Closing, Seller shall deliver the following documents ("Seller's Closing Documents") to Buyer. Copies of Seller's Closing Documents shall be delivered to Buyer's Attorney for review and approval at least three (3) business days prior to the Closing Date. 10.1 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 as set forth in Exhibit "B". 10.2 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 been made for which payment in full has not been made, and (d) the Property is free of all liens, claims and encumbrances (other than '.. the Permitted Encumbrances), and there are no outstanding bills pertaining thereto. 10.3 Gap Affidavit. An affidavit in form and content reasonably satisfactory to the Title Company to facilitate the insuring of the "gap"; i.e, 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. 10.4 FIRPTAF. A FIRPTA Non-Foreign Entity Transferor Certificate, Exemption Certificate or provide for withholdings, in accordance with Section 1445 of the Internal Revenue Code. 10.5 Form 1099-B. Such federal income tax reports respecting the sale of the Property as are required by the Internal Revenue Code of 1986. - 7 - • 10.6 B-I Requirements. Any documents required in Schedule B-I of the Title Commitment with the exception of any documents pertaining to the Buyer. 10.7 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. 10.8 Resolution. A certified resolution and incumbency certificate of the Seller corporation authorizing the entering into and execution of this Agreement and the consummation of the transaction herein contemplated and the incumbent officers, as applicable. 10.9 Organizational Documents. As to Seller, a certificate of good standing and certified copies of the organizational documents of Seller reasonably required by Buyer and the Title Company. 10.10 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. 11. 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's Attorney for review and approval not less than three (3) business days prior to the Closing Date. 11.1 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. 11.2 Representations and Warranties Certificate. A certificate confirming the status of all of Buyer's representations and warranties as of the Date of Closing. 11.3 Cash to Close. The total amount of the Purchase Price, subject to prorations and adjustments. 12. Closing Procedure. The Closing shall proceed in the following manner: 12.1 Transfer of Funds. At Closing, Buyer shall wire transfer to Seller the Cash to Close. 12.2 Delivery of Documents. Buyer shall deliver Buyer's Closing Documents and Seller shall deliver Seller's Closing Documents to one another at Closing. 13. Closing Costs, Taxes, Prorations. 13.1 Taxes. Real estate taxes("taxes") shall be prorated as of December 31, , 1993 and pursuant to Paragraph 17.20(B) 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 (10) days following demand therefor. 13.2 Seller's Closing Costs. Seller shall pay for the following items from its own funds at or before Closing: - 8 - (a) The latest payment due for any and all certified, confirmed or ratified special assessment liens through December 31, 1993; (b) Matters required to be paid to obtain clear title subject to the limitations contained in Paragraph 4, up to Ten Thousand Dollars ($10,000) cumulative; (c) All fees, assessments, costs and charges incurred to fulfill and perform the provisions of this Agreement, up to Ten Thousand Dollars ($10,000) cumulative; (d) One half of the premium for the Title Policy. (e) Expenses incurred by Buyer with regard to the environmental audit in Paragraph 6.6, up to Seven Hundred Fifty Dollars ($750.00). 13.3 Buyer's Closing Costs. Buyer shall pay for the following items at the time of Closing: (a) The cost of recording the Deed; (b) One half of the premium for the Title Policy; (c) The costs for Buyer's survey; (d) Documentary stamp taxes to be affixed on the Deed; provided, however, that if the taxing authorities do not require documentary stamps on the Deed but require payment of the surtax, Buyer shall pay one-half of the surtax. (e) The surtax on the Deed. 14. Possession. Full and complete possession of the Property shall be delivered to Buyer at Closing. 15. Default. 15.1 Buyer's Default. If this transaction fails to close due to a refusal of 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 Forty-two Thousand Eight Hundred Dollars ($42,800) 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 certainty on the Effective Date, and the Forty- two Thousand Eight Hundred Dollars ($42,800) 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. 15.2 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 - 9 - notice if it fails to close the within transaction on the Closing Date. If Seller defaults by failing to close the within 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. 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 and provided a claim is timely made within 18 months from the Closing Date 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, all monies, up to the sum of Two Thousand Dollars ($2,000.00), expended by Buyer in connection with this Agreement shall be paid by Seller to Buyer upon demand,which written notice shall include such supporting data as reasonably necessary. 16. 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 Purchaser: CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager Office: (305) 673-7470 Fax: (305) 673-7002 with a copy to: CITY ATTORNEY'S OFFICE 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Office: (305) 673-7470 Fax: (305) 673-7002 To the Seller: K.T.K.L. CORPORATION c/o Anthony Karpawich Clevelander Hotel 10th Street and Ocean Drive Miami Beach, Florida 33139 Office: (305) Fax: (305) with a copy to:. Eugene J. Howard 1111 Lincoln Road #800 Miami Beach, Florida 33139 Office: (305) 538-6361 Notice delivered to counsel for a party shall be deemed delivery of notice to the party. 17. Miscellaneous. All of the provisions of this Paragraph shall be deemed to survive Closing. - 10 - • 17.1 Counterparts. This Agreement may be executed in any number of counterparts, any one 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. 17.2 Amendment. No modification or amendment of this Agreement shall be of any force or effect unless in writing executed by both Seller and Buyer. 17.3 Attorneys' Fees. If any party obtains a judgment against any other party by reason of any litigation arising out of this Agreement, reasonable attorneys' fees and appellate attorney's fees and costs may be recovered and may be included in such judgment. 17.4 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. 17.5 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. 17.6 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. 17.7 Time is of the Essence. Time is of the essence with respect to all times 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. 17.8 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. 17.9 Maintenance of Property. The Property shall be maintained by Seller in the same condition as existed as of the Effective Date. 17.10 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, so long as the sign does not consume more than 100 square feet, and fronts Collins Avenue, as required by the City. 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. 17.11 Buyer's Indemnification. Buyer shall indemnify Seller and hold Seller harmless from all claims and expenses for personal injury,property damage, and liens of any kind caused by Buyer or Buyer's agents, employees, or independent contractors arising out of Buyers' activity on the Property pursuant to Paragraph 5 and this indemnification shall include indemnification against money judgments, lien judgments, court costs and attorneys 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. 17.12 No Recordation of Agreement. This Agreement may not be recorded in any Public Records. - 11 - 17.13 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. 17.14 Further Assurances. Each of the parties hereto, without further consideration, agrees to execute and deliver such other documents, and to take such other action, whether prior or subsequent to the Closing may be necessary to more effectively consummate the purposes or subject matter hereof. 17.15 Approval by Mayor and City Commission. This Agreement shall be binding upon the Buyer only after it has been approved at a public hearing by the Mayor and Commissioners of the City of Miami Beach and signed by the Mayor, City Manager or another duly authorized person. Upon execution by Buyer, this provision shall be deemed complied with. 17.16 Pursuant to the laws of the State of Florida, Seller is required to provide the following notice to Buyer: "Radon Gas: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing maybe obtained from your county public health unit." 17.17 It is understood and agreed that the Seller herein is an affiliate corporation to the ownership of the Clevelander Hotel, 1020 Ocean Drive, and/or the Edison Hotel, 960 Ocean Drive, Miami Beach, Florida. 17.18 It is the intent of the Buyer to design and build a parking structure on the Property, and the two adjacent lots, consisting of approximately 275 parking spaces. The Buyer and the Seller hereby agree that the Buyer shall be required to commence construction of the parking structure within eighteen (18) months form the date of closing. In the event the Buyer has not commenced construction within said 18 month period, then it is understood and agreed that the Buyer shall offer the Property to'the Seller, to re- purchase for the sum of Four Hundred Twenty-eight Thousand Dollars($428,000.00). Seller will have sixty (60) days from the end of the aforestated (18) month time period to close on its option to re-purchase the property from the City, at K.T.K.L.'s option. 17.19 Subsequent to the closing of the subject property herein as contemplated by this Agreement, Seller may continue to use same for parking purposes until such time as Buyer commences construction of the parking structure. In the event that the Seller so selects to use the property for parking, Seller shall enter into a separate agreement with the Buyer for such use, said agreement including, but not limited to the following terms and conditions: A. Payment of rent to the Buyer in the amount of Five Thousand Dollars ($5,000.00) per year, which shall be the only cost attributable to Seller for such parking. Notwithstanding,Seller may also continue to maintain its current dumpster on the subject property while it maintains such parking; B. Termination of the agreement by either Seller or Buyer upon sixty (60) days written notice; C. Compliance with any and all appropriate insurance, indemnification,and hold harmless requirements, as so deemed and reasonably required by the Buyer; - 12 - D. Upon completion of the contemplated parking structure,subject to the terms below, the Buyer shall grant to the Seller or Seller's designee, the exclusive access and use of twenty eight (28) parking spaces in the south east corner of the lowest parking floor of the facility. Seller shall enter into a separate lease agreement with Buyer, said agreement to include but not be limited to the following terms and conditions: i) Thirty year lease term; ii) Rent in the amount of Five Thousand Dollars($5,000.00) • per year for the first ten (10) years, and after the end of the 10th year, the rental will be increased by five(5%)percent annually or the available consumer price index(CPI), at that time, whichever is greater; iii) At the end of the twentieth (20th) year, the rental rate for the parking spaces would be established at a sum equal to the Buyer's lowest cost rate for parking garage rental; iv) Prior to the commencement of each lease year, upon thirty (30) business days written notice to the Buyer, Seller or its designee may notify the Buyer that it desires to cancel the lease agreement for the said twenty eight (28) parking spaces. It is understood and agreed that only the Seller, or its designee has the option of canceling this lease agreement for said twenty eight parking spaces. E. The Buyer shall design and build into the original parking structure a secured "dumpster room" to be located at the southeast corner of the parking garage, at the lowest level, freely accessible from the alley, for exclusive use by Seller or it's designee. The Seller shall share equally in the cost to design and build said dumpster space, such cost not to exceed Ten Thousand Dollars ($10,000.00). The Buyer shall deduct the area or portion for the dumpster space (up to three (3) parking spaces) from the twenty eight allocated parking spaces that Seller proposes to lease from the Buyer, pursuant to the aforestated terms. F. Seller or its affiliate shall be allowed by the City to utilize the said 28 parking spaces as "credits" towards its "parking requirements" for any zoning or covenants, restrictions and limitations that the City imposes for the Clevelander Hotel and/or the Edison Hotel. This Subsection shall survive closing for a term of thirty (30) years. 17.20 The parties herein acknowledge that this Agreement is being executed with the understanding that eminent domain proceedings would otherwise be instituted as to this Property; consequently, this Agreement is made to forestall protracted litigation. 17.21 A. Notwithstanding,it is understood and agreed by the parties that the closing contemplated herein shall finalize and close no later than December 31st, 1993, but in the event the Buyer needs additional time to close the transaction, and the Seller agrees to same, the Deed of conveyance shall be deposited in escrow prior to December 31, 1993, and the Deed shall be released to the Buyer on full compliance of the Agreement, including the full payment of the said Four Hundred Twenty-eight Thousand ($428,000.00) to Seller, no later than UVIa IV- B. The proration date shall be December 31, 1993, in the event the closing takes place subsequent to December 31, 1993, interest shall then accrue on the cash to close at seven (7%) percent per annum. 17.22 The attorney for the Seller, Eugene J. Howard, shall prepare the closing documents for the transaction contemplated by this Agreement. 17.23 The parties represent to each other that there is no broker or finder involved in this transaction and the parties indemnify each other, stating they have not dealt with any x - 13 - real estate broker or finder on this transaction, and that all negotiations have been done directly between the parties. This paragraph shall also survive the closing. 17.24 LIMITATION OF CITY'S LIABILITY The Buyer desires to enter into this Agreement only if in so doing the City can place a limit on the its liability for any cause of action for money damages due to an alleged breach by the Buyer of this Agreement, so that its liability for any such breach never exceeds the sum of Forty-two Thousand Eight Hundred Dollars ($42,800). Seller hereby expresses its willingness to enter into this Agreement with Seller's recovery from the Buyer p ,1 for any damage action for breach of contract to be limited to a maximum amount of Forty- two Thousand Eight Hundred Dollars ($42,800) less the amt nt of all funds actually paid by the Buyer to-Pstuursuant to this Agreement. LJ Accordingly, and notwithstanding any other to 1 '� ndition of this Agreement, Seller hereby agrees that the Buyer shall not be liab e to the Seller for damages in an amount in excess of Forty-two Thousand Eight Hundred Dollars ($42,800) which amount shall be reduced by the amount actually paid by the Buyer to Seller'pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the Buyer by this Agreement.Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon Buyer's liability as set forth in Florida Statutes, Section 768.28. 17.25 ARBITRATION Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgement upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to specific performance shall be settled by litigation and not arbitration. 1 - 14 - IN WITNESS WHEREOF, each of the parties hereto has signed this Agreement under seal the day and year appearing below their respective signatures. SELLER: A'1'1'bST: K.T.K.L. CORPORATION, a Florida corporation O • / , Pre ident Date: 1993 6 BUYER: ATTEST: CITY MIAMI BE H, a Floe municipal co o atio n j?CILJY (__~TIP • +� By: (SE ) CITY CLERK Date: ai) • __ , 1993 FORM APP,R- VED LEG i T. BY 6(a/ Date - 15 Exhibit "A" Legal Description of the Property Lot 12, and the North one foot (1') of Lot 11, Block 15, OCEAN BEACH FLORIDA ADDITION NO. 2, according to the Plat thereof, as recorded in Plat Book 2, at Page 56, of the Public Records of Dade County, Florida. Exhibit "B" Permitted Exceptions TO BE INSERTED Exhibit "C" Litigation, Violations, Etc. TO BE INSERTED