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Agreement to Purchase and Sale AGREEMENT TO PURCHASE AND SELL REAL PROPERTY AND AIR SPACE THIS AGREEMENT is made and entered into by and between BALLET VALET PARKING COMPANY, LTD., a Florida limited partnership and The Ballet Valet Corp., a Florida corporation (collectively, the "Seller"), whose address is 640 Ocean Drive, Miami Beach, Florida 33139, and the CITY OF MIAMI BEACH, a Florida municipal corporation ("Buyer"), whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139. WIT N E SSE T H: In consideration of the covenants In this Agreement, Seller and Buyer agree as follows: ARTICLE 1 Purchase and Sale The Property. Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the real property and air space described and delineated on Exhibit "A" attached hereto and made a part hereof, together with all improvements thereon, easements for physical support and rights appurtenant to such real property as described in the Development Agreement (the "Property") . ARTICLE 2 Purchase Price 2.1 Amount and Payment. The purchase prIce for the Property (the "Purchase Price") shall be Two Million Eight Hundred Forty Two Thousand Five Hundred Forty Four Dollars ($2,842,544.00). The Purchase Price shall be reduced by 0(6 $100,000.00 to reflect an amount of net savings In the construction of the Project (as defined in Section 3 hereof). The Purchase Price shall be increased by Two Hundred Seventy Five Thousand Dollars ($275,000.00) in the event the Seller conveys the "Resnick Piece." The reduction in the Purchase Price and conveyance of the Resnick piece are more particularly described In Section 1.30 of that certain Acquisition, Construction and Development Agreement among the City of Miami Beach, The Ballet Valet Parking Company, Ltd., and McCarthy Brothers Company (the "Development Agreement"). Unless directed in writing otherwise, at the Closing (as hereinafter defined), Buyer shall pay the Purchase Price to Seller by wire transfer in immediately available funds as follows: Steel Hector and Davis Trust Account Account #2689603594934 First Union National Bank of Florida Jacksonville, Florida ABA #063000021 Notify Carol Christenson (305) 577-2975 ARTICLE 2 Completion of Sale The purchase and sale of the Property shall be completed through a closing (the "Closing") which shall occur at the offices of Steel Hector & Davis, 200 South Biscayne Boulevard, Miami, Florida 33131, on May 26, 1994, unless 007 -2- extended by the parties, provided all Conditions Precedent have been satisfied. The parties' obligation to close this transaction shall be conditioned as provided in Article 9 hereof. ARTICLE 3 Conditional Use Desiqnation Buyer and Seller have received from the Planning Board, an agency of Buyer, (the "Planning Board") a Conditional Use designation of the Property and the real property and certain air space contiguous thereto (the "Conditional Use Designation"), permitting joint use for a garage and retail complex in accordance with the terms of that certain Development Agreement (the "Project"), and those certain plans and specifications submitted to the Planning Board, and Design Review Board of Buyer. ARTICLE 4 Title to the Pro~erty 5.1 Fee Title. At Closing, Seller shall convey its title to the Property to Buyer by a duly executed and acknowledged warranty deed (the "Deed"), subject to those matters of record which do not render title unmarketable (the "Permitted Exceptions") which permitted exceptions, are attached hereto and made a part hereof as Exhibit B; provided none of the foregoing prohibits use of the Property as a garage pursuant to the Conditional Use Designation. 5.2 Mechanics' Liens. Seller shall have no unpaid bills for labor performed or materials supplied incident to the oe8 -3- Property. A no-lien affidavit to this effect will be delivered by Seller to Buyer at Closing. ARTICLE 5 Status of Title Prior to the execution of this Agreement, Seller provided Buyer with evidence of title sufficient for Buyer and Buyer's counsel to evaluate the condition of Seller's title to the Property. Buyer has provided Seller with Chicago Title Insurance Company Commitment Number 10-0198-10-003910 for the issuance of title insurance (the "Commitment"). Buyer has given Seller notice of all matters that would render title nmarketable as stated in the Commitment. BALANCE OF PAGE INTENTIONALLY LEFT BLANK OfS -4- ARTICLE 6 Environmental Condition The terms of Article III of the Development Agreement pertaining to the environmental condition of the Property are hereby incorporated herein by this reference. ARTICLE 7 Reoresentations and Warranties 7.1 Seller. The representations and warranties of in this section 7.1 are a material inducement for Buyer BALANCE OF SECTION CONTINUES ON NEXT PAGE 010 -5- to enter into this Agreement. Buyer would not purchase the Property from Seller without such representations and warranties of Seller. (a) Seller is a limited partnership, organized and validly existing under the laws of the State of Florida; (b) Seller has full power and authority to enter into and perform this Agreement. (c) Seller has not employed or engaged any broker or finder or incurred any liability for any commission or fee to any broker or finder in connection with this Agreement or the transactions contemplated hereby. (d) EXCEPT AS EXPRESSLY STATED IN THE ENVIRONMENTAL REPORT DELIVERED TO BUYER PURSUANT TO SECTION 3.2 OF THE DEVELOPMENT AGREEMENT, (THE "ENVIRONMENTAL REPORT") SELLER HEREBY EXPRESSLY DISCLAIMS AND RENOUNCES ANY AND ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED OR STATUTORY OR OTHERWISE, ABOUT THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY CLAIM FOR ANY DIRECT, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM, WITH RESPECT TO THE PROPERTY AND ALL PERSONALTY, FIXTURES AND APPURTENANCES OF ANY KIND WITH RESPECT THERETO. SELLER HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THESE LIMITATIONS OF SELLER'S LIABILITY AND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS. 7.2 BuYer. The representations and warranties of Buyer ln this section 7.2 are a material inducement for Seller 011 -6- to enter into this Agreement. Seller would not sell the property to Buyer without such representations and warranties of Buyer. Buyer represents and warrants to Seller as follows: (a) Buyer has full power and authority to enter into this Agreement and to perform this Agreement and to use the tax-exempt proceeds from the issuance of the Gulf Breeze Bond Funds; (b) the execution, delivery and performance of this Agreement by Buyer has been, or will be prior to Closing, duly and validly authorized by all necessary governmental action on the part of Buyer. At Closing Buyer shall provide Seller with a resolution of the City Commission of the City of Miami Beach, Florida, authorizing the sale of the Property pursuant to the terms of this Agreement. (c) Buyer has not employed or engaged any broker or finder or incurred any liability for any commission or fee to any broker or finder in connection with this Agreement or the transactions contemplated hereby. (d) Subject to the matters stated in the Enviromental Report Buyer has made its own inspection and investigation of the Property and is purChasing the Property "AS IS, WHERE IS, WITH ALL FAULTS," and has not relied on any representations by Seller or its agents with respect to the physical condition of the Property. Except for the matters stated in the Environmental Report, BUYER HEREBY EXPRESSLY 012 -7- WAIVES, RELEASES AND RENOUNCES, ANY AND ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED OR STATUTORY OR OTHERWISE, ABOUT THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY CLAIM FOR ANY DIRECT, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM, WITH RESPECT TO THE REAL PROPERTY AND ALL PERSONALTY, FIXTURES AND APPURTENANCES OF ANY KIND WITH RESPECT THERETO. BUYER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES TO THE ABOVE STATED LIMITATIONS OF SELLER'S LIABILITIES. 8.1 Seller. as follows: All representations and warranties made by Seller in this Agreement shall be true and correct on and as of the Closing as if made on the Closing. All such representations and warranties made by Seller shall survive the Closing. Seller shall not permit any state of facts to exist or to continue to exist which would cause any of the representations and warranties made by Seller in this Agreement to be false or inaccurate on and as of the Closing. 8.2 BuYer. Buyer covenants and agrees with Seller as ARTICLE 8 Covenants Seller covenants and agrees with Buyer follows: (a) All representations and warranties made by Buyer In this Agreement shall be true and correct on and as of 013 -8- Closing as if made on the Closing Date. All such representations and warranties made by Buyer shall survive the Closing. Buyer shall not permit any state of facts to exist or to continue to exist which would cause any of the representations and warranties made by Buyer in this Agreement not to be true and correct on and as of the Closing Date. ARTICLE 9 Conditions Precedent 9.1 Condition Precedent to Closino as to Seller. The obligations of Seller under this Agreement are subject to satisfaction of the following conditions: (a) Execution and delivery of that certain Development Agreement by and between Seller and Buyer and satisfaction of the conditions precedent to closing of the Property as stated in the Development Agreement. (b) At Closing, Buyer shall not be In default in the performance of any covenant or agreement to be performed by Buyer under this Agreement. (c) At Closing, all representations and warranties made by Buyer in this Agreement shall be true and correct as if made on and as of the Closing. Seller may waive any or all such conditions In whole or In part but any such waiver shall be effective only if made in writing. No such waiver shall constitute a waiver by Seller of any of its rights or remedies if Buyer defaults in the performance of any covenant or agreement to be performed by 014 -9- Buyer under this Agreement or if Buyer breaches any representation or warranty made by Buyer in this Agreement. If any condition set forth in this section 9.2 is not fully satisfied or waived in writing by Seller by the Closing Date, Seller shall be released from all obligations to Buyer under this Agreement. (d) At Closing, all approvals from the Commission for The City of Miami Beach shall have been obtained in writing. 9.2 Conditions Precedent to Closino as to BuYer. The obligations of Buyer under this Agreement are subject to satisfaction of the following conditions: (a) Execution and delivery of that certain Development Agreement by and between Seller and satisfaction of the conditions precedent to closing of the Property as stated in the Development Agreement and all documents thereunder. (b) At Closing, Seller shall not be in default in the performance of any material covenant or agreement to be performed by Seller under this Agreement. (c) At Closing, all representations and warranties made by Seller in this Agreement shall be true and correct as if made on and as of the Closing. Buyer may waive any or all such conditions in whole or in part but any such waiver shall be effective only if made in writing. No such waiver shall constitute a waiver by Buyer of any of its rights or remedies if Seller defaults in the performance of any covenant or agreement to be performed by 015 -10- Seller under this Agreement or if Seller breaches any representation or warranty made by Seller in this Agreement. If any condition set forth in this section 9.3 is not fully satisfied or waived in writing by Buyer by the Closing Date, Buyer shall be released from all Obligations to Seller under this Agreement. (d) At Closing, all approvals from the Commission for The City of Miami Beach shall have been obtained in writing. ARTICLE 10 Closinq 10.1 Possession. Upon receipt of the Purchase Price, Seller shall transfer possession of the Property to Buyer at Closing free and clear of all parties in possession and, subject to the Permitted Exceptions. 10.2 Closinq Costs. Seller and Buyer shall share equally the cost of the documentary stamps and surtax in connection with the recordation of the Deed, and the cost to record the Deed. 10.3 Prorations. All current rents, real estate taxes (only if applicable), assessments, utilities, and maintenance charges of the Property shall be prorated between Seller and Buyer as of the Closing and, to the extent of information then available, such prorations shall be made at the Closing. Such prorations or reprorations shall be adjllsted, if necessary, and completed after the Closing as soon as final information becomes available. Seller and Buyer agree to cooperate and to use their 016 -11- best efforts to complete such prorations no later than thirty (30) days after the Closing. Re-prorations of real estate taxes shall be based on the actual November amount of real estate taxes, within thirty (30) days of written request of either party. Income and expenses of the Property for the period prior to the Closing shall be for the account of Seller and income and expenses of the Property for the period on and after the Closing shall be for the account of Buyer.Seller and Buyer shall use their best efforts prior to Closing to prepare a schedule of the prorations that will be made at the Closing. The right of each party to reprorate taxes and expenses shall appear as a statement on the Closing Statement. 10.4 Escrow for Real Estate Taxes. Pursuant to Florida Statute 196.295, Buyer may be exempt from the Obligation to pay real estate taxes. If so, the Seller shall place into escrow with the Tax Collector an amount equal to the current taxes prorated to the date of transfer, based upon the current assessment and millage rates on the land involved. This fund shall be used to pay ~ valorem taxes due, and the remainder of taxes which would otherwise have been due for that current year shall stand cancelled pursuant to Florida Statute 196.295. BALANCE OF PAGE INTENTIONALLY LEFT BLANK 017 -12- ARTICLE 11 Notices All notices and other communications under this Agreement shall be properly given only if made in writing and either mailed by an overnight courier service, such as "Federal Express," or delivered by hand to the party at the address set forth as follows: As to Seller: Goldman Properties c/o Park Central Hotel 640 Ocean Drive Miami Beach, Florida 33139 and at: 103 Greene Street New York, New York 10012 with a copy to: Dennis Scholl, P.A. Steel Hector & Davis 200 South Biscayne Boulevard Miami, Florida 33131-2398 As to Buyer: City of Miami Beach P.O. Box 0 Miami Beach, Florida 33119 Attn: Roger Carlton with a copy to: David Berger, Esq. Broad & Cassel 175 Northwest First Avenue Miami, Florida 33128 Such notices and other communications shall be effective upon receipt. ARTICLE 12 Miscellaneous 12.1 Damaqe or Takinq. Buyer hereby represents and warrants to Seller that it will not condemn or cause or participate in the condemnation of -13- 018 the Property or the Project. This representation and warranty shall survive Closing, and is a material inducement for Seller to enter into this Agreement. If the Property is damaged by fire or other casualty before Closing, the Closing shall proceed pursuant to the terms of Contract without restoration costs escrowed at Closing; it being the intention of the parties to demolish the improvements on the Property. 12.2 General. The Exhibits attached to this Agreement are made a part of this Agreement. This Agreement shall benefit and bind Seller and Buyer and their respective successors and assigns. Time is of the essence of this Agreement, including, without limitation, the date of Closing. This Agreement may not be amended or modified except by a written instrument signed by Seller and Buyer. This Agreement constitutes the entire agreement between Seller and Buyer with respect to the purchase and sale of the Property and supersedes all prior agreements, understandings, offers and negotiations, oral or written, with respect to the Property. 12.3 Successors and Assians. Neither party may assign its rights or delegate its obligations hereunder to any person or entity. 12.4 Date of Aareement. By executing four (4) duplicate originals of this Agreement and delivering them to Seller, Buyer offers to purchase the Property from Seller for the Purchase Price and upon the other terms and conditions of this Agreement. As long as this Agreement has not been amended 019 -14- by Buyer to include a term or condition that is unacceptable to Seller, Seller shall accept such offer and return two executed duplicate originals to Buyer within five (5) days of Buyer's execution and delivery of such offer to Seller. The effective date of this Agreement (the "Effective Date") shall be the date this Agreement has been executed by the last party required to execute the Agreement and delivered by such party to the Seller or Buyer, as the case may be. 12.5 Governinq Law, No Recordation. This Agreement shall be governed by and construed in accordance with the laws of the state of Florida. Neither this Agreement nor a short form thereof shall be recorded in the Public Records. 12.6 Effect of Partial Invalidity. If anyone or more of the provisions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been made a part hereof. 12.7 Construction. The parties acknowledge that with respect to the transaction contemplated herein (a) each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed 1n the interpretatioll of this Agreement or any amendments or exhibits thereto, (b) neither party has received 020 -15- from the other any accounting, tax, legal or other advice, and (c) each party has relied solely on the advice of its own accounting, tax, legal and other advisors. 12.8 Survival of Indemnities. All indemnities set forth 1n this Agreement shall survive the Closing. 12.9 Default. If Buyer fails to purchase the Property on the Closing Date in accordance with the terms of this Agreement, Buyer agrees to pay Seller the sum of $250,000.00 which sum the parties agree is a fair measure of Seller's damages hereunder and is not a penalty. If Seller defaults under this Agreement for any reason other than failure of Seller, after reasonable efforts as hereinafter provided, to cure Title Defects, Buyer may seek all remedies at law or 1n equity, against Seller. 14. Radon Gas. Pursuant to Florida Statutes all sellers and lessors of real property are required to assist in informing and educating the public as to the potential hazards of radon gas by delivering the following notice: -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 may be obtained from your county public health unit." 021 -16- IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement to Purchase and Sell Real Property as of the dates written below. SELLERS: THE BALLET VALET PARKING COMPANY, LTD., a Florida limited partnership By: The Ballet Valet Corp., a Florida corporation, General B rtner President ~~r) Date: / ~/31 /9 C; THE BALLET VALET C RP., a Florida corporatO n By: R President Date: ATTEST: BUYER: CITY OF MIAMI BEACH, FLORIDA, a municipal corporation ~~J f.~ a: Clerk _~ A1f(foeh~[L,.,-, By: (Witnesses as to Buyer) Date: :J~ b \49'-\ \ -17- FORM APPROVED lEr,A~. (~ '/ / By,2k?~~~~ ~ Da>e ~ /~ / c;~ , - / I I 022 :=X:i:8: ~ 1..\ II '"- ~ART ~f U)~5 2 THROUGH 5 INCLUSIVE ~~D P\P7 Of LO~ 6, A~~ AS DESCRIBEJ 8ELOW TO BE CONVEYED TO THE ~ITY OF MIA~I BEACH The ~esterly 4S.16 f~et of Lot 6, Block 34, Ocean Beach, Fla. Additlon Ne. 1, recorded in Plat Book 3, at Page ~1 of the Publ~c records of Dade County, Florida contains 2108 Square Feet. That Part of Lots 2 through ~ incluslve, Block 34, Ocean Beach, Pla., Addltion No.1, recorded in Plat BOOK 3, at Page 11 of t~e Public recorda of Dade County, Florida. Part of Lots 2 through~: Bounded on the West by the Westerly line of said Lots 2 throuqft 5, bound on the North by the Northerly line of Lot 2; bounded on the South at the Southerly line of Lot 5; bounded on the East by ~ l~n. descr~be1 as follows: Commence '?O.C".) <it ~ne sC"Jth..~t Cf')rner of said Lot 5 and run :; 19c t 2' 25" E a.'Jng thp SC' .'therll li;,,-:; of Lot 5, a dlstance of 4'3. f-o feet to the FOint :'J. Be<;lr'rll~.s of the referenced I 047''':1.5'' E' 1 " 1 fast. -ly .Llne, ':hen("~ run N let ~ 3..lcr.~ a lne para...>..'l. IN 1 t '1 a ~ 1 4 S . , 6 ~ ee tEa ~ +: e r 1 y 0 t the .. est. e r : y 1:. ~1 €: 0 f L () ': S 5 trr...>uqtl 3 incluslve, a Jista.nce of 1 SC. 00 teet; thence run N 29c55'lz" l acrosa Lot 2, a .iistance of 52.92 feet to the ~or"herly 1.ne of Lot S, sa~d point belng 62.5C feet Easterly o! the northwest corner of Lot 5. Area described contains ~.65.5 square Feet. 023 EXHIBIT -A- ?ARCEL "A'l ~lr Rights for the Easterly 13.16 feet of Lot 6, Block 34, Jcea~ 3each, Fla., Addition No.1, recorded in Plat Book 3, ~t Pa;~ ,. ~f the Public records of Dada County, Florida. ;'~,,,= :....)"c!:- :er':.:.. -a.l. BO\.ir:darv _,r tre above deSCr1.Ded ~~r Rlq~:S 1S at dn elevatlJn ~! ~C.OO fe~t, Nd~lonal Geocetic \ertlca. Dat'.lm N.G.V.D.), 1929. The ~pper bOundar! of t~e said Alr q1ghts is an elevatian of irfinity. Area of the Base of the ~ir Ri9nts ~ 658 ~are r..t.. PARCEL"B" A1r Riqht~ for the Easterly 13.16 feet of Lots 2 through 5 lnclusive, Block 34, Ocean Beech, Pla., Addition No.1, recorded in Plat Book 1, at ..qe " of the Public records ot oede Co~nty. Flor1da. ~e Lowest Vertical BoundAry of the above described ~lr Rlghts 15 at an elevation of 40.00 feet, ~.tlonal Geodetic Vertical Datum (N.G.V.D.), '929. The upper boundary of the said Air Rights is an elevation of ~nfinity. .,.. of the .... of the Air Rights is 2632 ...." P..~. - - PARCEL "e" Alr Rlghts for that part of Lot 6 described as Lot 6, less the Sasterly 13.16 feet and less the Westerly 45.16 feet, Siock 34, Ocean Beach, Fla., ~dditlon No.1, recorded 1n ?lat 3GO~ 3, at Page 11 of th~ Public records of Dade CountYt Florlda. "' !~e ~owest Vertical Boundary of the above described Alr Rights is at an elevation of 23.00 feet, Naticnal Geodetic Vertical Datum (N.G.V.D.), 1929. The u~ger boudary of the said Air Rights is an elevation of i~finity. Area of the Base of the Air Rights is 4084 Square "e.t. 024 PARCEL " D" EXHIBIT .A. Air Rights for a part of Lots 2 through 5 lnclusive, Block 34, Ocean Beach, Fla., Addition No.1, recorded in Plat Book 3, at ?age 1~ of the PubllC records of Dade County, Florlda; sald part bounded as followSi Bounded on the East by a line 13.16 feet Westerly of the Easterly line ~f said Lots 2 through 5 inclusive, bounded on the North by ~he Northerly line of Lot 2; bounded on the South by :he Southerly line of Lot 5; bounded on the West by a line descrloed as follows. Commence (P.O.C.) at the south~~sterly corner of Lot 5 and run 5 79012'25" E along the Southerly line of Lot 5, a distance of 45.16 feet; to tne Point of Beginn~ng (P.O.B.) of said line; thence run ~ '0047'35" E alonq'a line 45.16 feet Easterly of the Westerly line ot Lots 5 throuqh 3, a distance of 150.00 feet to the Northerly l1ne of referenced Lot 3; thence tun N 29055112" E across Lot 2, a distance of 52.92 feet to the Northerly line of said Lot 2, said point being 62.50 feet from the North~&st corner of Lot 2. Area of the ba.e of Air a~9Ats is 15,902.59 Square Feet. The iOue~ ~..~tl Ioundary ot the above d.scribed Air Rl,Jlt. 1. att. ... .lev.ticn of 23.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. fhe upper boudary of the said Air Rights is an elevation of infinity. 025 EXHIBIT -B- Permitted Exceptions 1. Taxes for the year 1994 not yet due and payable, and any taxes and assessments hereafter levied or assessed. 2. Plat filed March 14, 1913 in Plat Book 3, Page 11 of the Public Records of Dade County, Florida. 3. Restrictions contained in instrument recorded in Official Records Book 14068, at Page 2954, of the Public Records of Dade County, Florida (as to Lot 6, Block 34). AL1/26l3 'i" 6' 1....14...