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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, (the "Agreement") is made
and entered into this day of , 2008, by and between David
Miller and Walter R. Miller, as Tenants in Common, with offices at 551 N.W. 71
Street, Miami, FL 33130 (the "Seller") and the City of Miami, a municipal
corporation of the State of Florida, with offices at 444 SW 2 Avenue, Miami, Florida
33130-1910 (the "Purchaser"). The Parties hereby agree that Seller shall sell and
Purchaser shall buy the following property upon the following terms and
conditions:
1. DESCRIPTION OF PROPERTY/PURPOSE OF ACQUISITION
The Properties located at 551 NW 71 Street, 7142 and 7148 NW 5 Court,
Miami, Florida, as legally described on Exhibit "A", attached and
incorporated, hereinafter referred to as the "Property".
2. PURCHASE PRICE AND PAYMENT
The Purchaser agrees to pay and the Seller agrees to accept for the Property
the sum of One Million Two Hundred Sixty Eight Thousand Seven Hundred
and Fifty ($1,268,750) Dollars (the "Purchase Price").
There have been two (2) appraisals of the Property procured by the
Purchaser, the average of which is One Million Two Hundred Sixty Eight
Thousand Seven Hundred and Fifty ($1,268,750) Dollars.
The Purchase Price, as it may be adjusted, will be payable as follows:
(a) Deposit: Within forty-five (45) business days of the Effective Date
as defined herein, the Purchaser shall pay to
(the "Escrow Agent"), Sixty Three Thousand Eight Hundred
and Seventy Five ($63,875) Dollars as a deposit (the "Deposit"). The
Deposit shall be held by the Escrow Agent in an interest bearing
account, with interest accruing to Purchaser, unless the Deposit is
disbursed to the Seller upon Purchaser's default. At Closing, the
Deposit and all interest earned thereon, shall be delivered by the
Escrow Agent to the Seller and credited against the Purchase Price.
The Deposit is non-refundable except in the event Purchaser
terminates this Agreement as provided herein.
(b)
Closing Payment: At Closing, the Deposit, plus the balance of the
Purchase Price, adjusted by adjustments, credits, prorations, or as
otherwise provided in this Agreement, shall be paid by the Purchaser
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to the Seller in the form of cashier's check, certified check, official
bank check or wire transfer.
3. CONDITIONS PRECEDENT TO CLOSING, PERFORMANCE BY
SELLER.
(a) As a condition precedent to Closing, but not later than the expiration
date of the Inspection Period, as defined in Section 4 (b) the Seller
shall have fully performed, at its sole cost and expense, and provided
Purchaser evidence of completion of the following undertakings:
(i) Removal of removing all debris and/or miscellaneous materials
from Property not later than fifteen (15) business days prior to
closing. Accordingly, no later than thirty (30) business days
prior to closing, the parties shall meet at the Property to
inspect and agree in writing on the disposal of any remaining
debris and/or miscellaneous (the "Report") materials. Each
party shall execute the Report and provide either party with
executed a full copy of same. No later than the 15 day period
provided to the seller to remove remaining debris, the parties
shall again meet at the Property with the Report to verify that
Seller has performed. In the event any disputed items on the
Report remain on the Property, then Purchaser shall be
entitled to a credit against the Purchase Price for the cost of
removal at closing from the Seller. The Seller shall have no
recourse from the granting of this credit.
(ii) The Property shall be free and clear from all occupants.
(b) There shall be no oral or written leases, options to purchase, contracts
for sale or other agreements that may encumber all or part of the
Property. Seller shall further represents and warrant that there are
no parties having ownership interest in any of the improvements on
the Property. Seller represents and warrants that it has previously
furnished to the City copies of any written leases, options for
purchase, rights of first refusal, contracts for sale, estoppel letters for
each Tenant, and cancellation, discharge or extinguishment of same.
(c)
In the event that any one of the foregoing conditions is not satisfied on
or before the Inspection Period, the Purchaser shall have the right, in
its sole discretion, to (i) terminate this Agreement, whereupon the
Escrow Agent shall immediately deliver to Purchaser the Deposit and
the parties shall be relieved of all further responsibilities and
obligations hereunder, or (ii) extend the Closing Date by not more
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than thirty (30) business days to allow the Seller to comply with the
conditions precedent in writing.
4. ENVIRONMENTAL MATTERS
(a) Definitions:
For purposes of this Agreement:
The term "Hazardous Materials" shall mean and include without
limitation, any substance, which is or contains (1) any "hazardous
substance" as now or hereafter defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C., Section 9601 et seq.) ("CERCLA") or any
regulations promulgated under or pursuant to CERCLA; (2) any
"hazardous waste" as now or hereafter defined in the Resource
Conservation and Recovery Act (42 U.S.C., Section 6901 et seq.); (3)
any substance regulated by the Toxic Substances Control Act (15
U.S.C., Section 2601 et. Seq.); (4) gasoline, diesel fuel, or other
petroleum hydrocarbons; (5) asbestos and asbestos containing
materials, in any form, whether friable or non -friable; (6)
polychlorinated biphenyls; and (7) any additional substances or
material which: (i) is now or hereafter classified or considered to be
hazardous or toxic under Environmental Requirements as hereinafter
defined; (ii) causes or threatens to cause a nuisance on the Property or
adjacent property or poses or threatens to pose a hazard to the health
or safety of persons on the Property or adjacent property; or (iii) would
constitute a trespass if it emanated or migrated from the Property.
(b)
The term "Environmental Requirements" shall mean all laws,
ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders and decrees, now or hereafter enacted,
promulgated, or amended of the United States, the State of Florida,
Miami -Dade County, the City of Miami, or any other political
subdivision, agency or instrumentality exercising jurisdiction over the
Seller or the Purchaser, the Property, or the use of the Property,
relating to pollution, the protection or regulation of human health,
natural resources, or the environment, or the emission, discharge,
release or threatened release of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or waste or Hazardous
Materials into the environment (including, but not limited to, ambient
air, surface water, groundwater, land or soil).
Inspection Period:
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Purchaser, its employees, agents, consultants and contractors shall
have a period of ninety (90) business days from the Effective Date (the
"Inspection Period"), at the Purchaser's expense, for such physical
inspections and other investigations of and concerning the Property.
Such inspections may include, but are not limited to surveys, soil
borings, percolation, engineering studies, environmental tests and
studies and other tests as Purchaser considers necessary for
Purchaser and consultants to review and evaluate the physical
characteristics of the Property and to perform certain work or
inspections in connection with such evaluation (the "Environmental
Inspection") after giving the Seller reasonable notice prior to each test
performed. The Purchaser, at its sole option, may extend the
Inspection Period for an additional ninety (90) business days if based
upon the results of the testing, additional testing is warranted. For
the purpose of conducting the Environmental Inspection, Seller
hereby grants to Purchaser and its consultants and agents or assigns,
full right of entry upon the Property during the Inspection Period
through the closing date. The right of access herein granted shall be
exercised and used by Purchaser, its employees, agents,
representatives and contractors in such a manner as not to cause any
material damage or destruction of any nature whatsoever to, or
interruption of the use of the Property by the Seller, its employees,
officers, agents and tenants.
(c) Inspection Indemnity, Insurance and Releases:
Notwithstanding anything contained in this Agreement to the
contrary, as consideration for the Seller granting a continuing right of
entry, the Purchaser hereby specifically agrees to: (i) immediately pay
or cause to be removed any liens filed against the Property as a result
of any actions taken by or on behalf of Purchaser in connection with
the inspection of the Property; (ii) immediately repair and restore the
Property to its condition existing immediately prior to the Inspection
Period; and (iii) to the extent permitted, and subject to the limitations
afforded governmental agencies by law, indemnify, defend and hold
harmless Seller, its employees, officers and agents, from and against
all claims, damages or losses incurred to the Property, or anyone on
the Property as a result of the actions taken by the Purchaser, any of
its employees, agents, representatives or contractors, with respect to
the inspection of the Property, provided, however, Purchaser shall not
be liable for the negligence or misconduct of Seller, its employees,
officers and agents, or anyone employed by any of them.
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Prior to Purchaser entering upon the Property for purposes of
commencement of the Environmental Inspection, Purchaser shall
furnish to Seller the policy or policies of insurance or certificates of
insurance, protecting the Purchaser, during the course of such testing,
against all claims for personal injury and property damage arising out
of or related to the activities undertaken by the Purchaser, its agents,
employees, consultants and contractors, or anyone directly or
indirectly employed by any of them or anyone for whose acts they may
be liable, upon the Property or in connection with the Environmental
Inspection.
(d) Remedies/Right of Termination:
If Purchaser discovers, during the Inspection Period, the presence of
Hazardous Materials on the Property in levels or concentrations
which exceed the standards set forth by Department of Environmental
Resources Management (DERM), the State or the Federal
Government (an "Environmental Condition"), prior to the end of the
Inspection Period, Purchaser shall notify Seller in writing and deliver
to Seller copies of all written reports concerning such Environmental
Condition (the "Environmental Notice"), together with a cost estimate
prepared by Purchaser's environmental consultant setting forth the
estimated cost of the remediation of the Environmental Condition (the
"Cost Estimate"). The Purchaser shall have fifteen (15) business days
from the date they receive the Environmental Notice and the Cost
Estimate, to negotiate a mutually agreeable remediation protocol. In
the event the Purchaser and the Seller are unable to reach an
agreement with respect thereto within the fifteen (15) business day
period provided herein, the parties shall have the right within five (5)
business days of the expiration of the fifteen (15) business day period
to terminate this Agreement by written notice to the other party
whereupon (i) all property data and all studies, analysis, reports and
plans respecting the Property delivered by the Purchaser to the Seller
shall be returned and delivered to the Purchaser by the Seller; and
then (ii) except as otherwise hereafter provided in this Section, the
parties shall thereupon be relieved of any and all further
responsibility hereunder and neither party shall have any further
obligation on behalf of the other; and (iii) Purchaser shall be refunded
the Deposit and any interest earned.
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(e) Waiver and Release:
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In the event that Purchaser does not elect to cancel this Agreement,
Purchaser acknowledges and agrees that the sale of the Property as
provided for herein is made on an "AS IS" condition and basis with all
faults.
(f) Seller's Representations Regarding Lack of Knowledge of
Environmental Conditions:
Seller represents and warrants to Purchaser that although Seller has
been operating the Property as an auto service business, to the best of
Seller's knowledge but without making independent inspection or
inquiry:
(i) The Property is presently free from contamination by
Hazardous Materials, and the Property and the activities conducted
thereon do not pose any significant hazard to human health or the
environment or violate any applicable Environmental Laws. There is
no evidence of any existing release of Hazardous Materials at the
Property.
(ii) There are no surface impoundments, lagoons, waste
piles, landfills, injection wells, underground storage areas on the
Property. Neither Seller nor any third persons have buried or
released Hazardous Materials on the Property, including the soil,
surface water and ground water.
(iv) There has been no treatment, or release of any
Hazardous Materials on land adjacent or near to the Property which
may constitute a risk of contamination of the Property or surface or
ground water flowing to the Property.
(v) No inspection, audit, inquiry or other investigation has
been or is being conducted by any governmental agency or other third
person with respect to the presence or discharge of Hazardous
Materials at the Property or the quality of the air, or surface or
subsurface conditions at the Property. Seller has received no notice
that any such inspection, audit, inquiry or investigation is pending or
proposed, nor has Seller or any previous owner of the Property
received any warning notice, notice of violation, administrative
complaint, judicial complaint or other formal or informal notice
alleging that Hazardous Materials have been stored or released at the
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Property or that conditions on the Property are in violation of any
Environmental Laws.
5. TITLE EVIDENCE AND SURVEY
Within five (5) business days of the Effective Date, Seller shall deliver to
Purchaser such title commitments, abstract of title, or other evidence of title
and such survey(s) of the Property as Seller may have in its possession or of
which it may have knowledge. Purchaser shall be responsible for obtaining,
at its sole cost, (i) a commitment for title insurance, from a certified title
insurance company authorized to issue title insurance in the State of
Florida, agreeing to insure Purchaser's title, free of all exceptions, except
those that may be accepted by Purchaser, together with all corresponding
title documents, and (ii) a survey of the Property showing the Property to be
free of encroachments or conditions that, in Purchaser's sole discretion,
would affect its proposed use of the Property. Purchaser shall have a period
equal to the Inspection Period in which to obtain and examine the survey
and the title commitment and submit to the Seller its objections. Seller
shall have a period of thirty (30) calendar business days after its receipt of
Purchaser's notice in which to cure any title defects. Seller shall use good
faith efforts to cure any Title Defect.
If Seller is unable to cure title defects and convey good, marketable title to
the Property according to provisions of this Agreement, Purchaser may: (i)
elect to accept such title that Seller may be able to convey, with no reduction
in Purchase Price; or (ii) terminate this Agreement, in which case the
Deposit and all interest earned thereon shall be returned by Escrow Agent to
Purchaser. Upon such refund, this Agreement shall be null and void and the
parties shall be relieved of all further obligation and liability, and neither
party shall have any further claims against the other.
6. CLOSING PLACE AND DATE
Unless otherwise extended by other provisions of this Agreement, closing
shall take place within one hundred and eighty (180) business days after the
Effective Date, at a mutually agreeable time (the "Closing") at the City of
Miami, Department of Public Facilities located at 444 S.W. 2nd Avenue, Suite
325, Miami, Florida or at such other location within the City of Miami that
the Purchaser may designate in writing by affording a notice to Seller as
provided herein. The parties may, subject to mutual written agreement,
establish an earlier or extend the date for Closing.
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7. CLOSING DOCUMENTS
(a) Seller's Closing Documents:
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At Closing, Seller shall execute and/or deliver to Purchaser the
following documents, in form and substance acceptable to the
Purchaser's City Attorney:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Statutory Warranty Deed;
A Closing Statement;
A Seller's Affidavit and a Non -Foreign Affidavit;
A Bill of Sale for all personal property and fixtures on the
Property;
Evidence of compliance with the Conditions Precedent.
Such other documents as are necessary to fully authorize the
sale of the Property and the execution of all closing documents;
An affidavit reaffirming the warranties and representations set
forth herein and certifying compliance with all Conditions
Precedent.
(b) Purchaser's Closing Documents:
At Closing, Purchaser shall execute and deliver to Seller the following:
(1)
(2)
(3)
Closing Statement;
Such documents as
purchase of the Property
documents;
Such other documents as
purchase of the Property and
documents.
(c) Other Contract Documents:
are
necessary to fully authorize the
and the
execution of all closing
are necessary
to authorize the
the execution of all closing
Seller acknowledges that the property is being acquired by a
governmental agency and that the transaction may be subject to
certain federal, state and local requirements, which include reporting
and disclosure of information.
Seller agrees to comply with the public disclosure and inspection
requirements under Chapter 119, Florida Statutes, disclosure of
beneficial interests under Section 286.23, Florida Statutes,
certification regarding conflict of interest under Chapter 112, Florida
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Statutes, Chapter 2 of the Miami City Code and §2-11-1 of the Miami -
Dade County Code, certification regarding Public Entity Crimes under
Section 287.133, Florida Statutes, and in connection therewith, Seller
agrees to execute and deliver all documents required or requested by
Purchaser or any other governmental authority, including, but not
limited to:
(1) Conflict of Interest and Non -Collusion Affidavit; and
(2) Sworn Disclosure of Beneficial Interests in Seller in Seller
(3) Seller is a partnership, limited partnership, corporation, or
trust, and
(4) Public Entity Crime Affidavit.
Additionally, if property is acquired with federal funds, the Seller
shall provide the Purchaser with a Receipt of Disclosures and Notices
under the Uniform Relocation Assistance and Real Property
Acquisition Policy Act of 1970, as amended from time to time, and
Seller shall comply with such other certification or reporting
requirements as may be required under the program regulations or
applicable federal and state laws or regulations.
8. CLOSING COSTS AND ADJUSTMENTS
At Closing, the following items shall be borne, adjusted, prorated or assumed
by or between Seller and Purchaser as follows:
(a) Adjustments and Prorations:
(1) Certified/Pending Liens: Certified, confirmed and ratified
governmental liens as of the Closing Date shall be paid by
Seller. Pending liens as of the Closing Date shall be assumed
by Purchaser.
(2) Other Taxes, Expenses, Interest, Etc: Taxes, assessments,
water and sewer charges, waste fee and fire protection charges,
if applicable, shall be prorated.
(3)
Usual and Customary: Such other items that are usually and
customarily pro -rated between purchasers and sellers of
properties in the area where the Property is located. All pro -
rations shall utilize the 365-day method.
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Closing Costs:
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(1) Each party shall be responsible for its own attorney's fees incurred
in connection with the Closing.
(2) Seller will pay the documentary stamps and surtax on the deed.
(3) Purchaser shall pay all other closing and recording costs incurred
in connection with the sale and purchase of the Property described
in this Agreement, including all recording charges, filing fees
payable in connection with the transfer of the Property hereunder.
9. DEFAULT
(a) If this transaction does not close as a result of default by Seller,
Purchaser, in addition to all other remedies available at law or in
equity, shall have the right to: (i) terminate this Agreement and
receive the return of the Deposit and all interest thereon; or (ii) waive
any such conditions or defaults and to consummate the transactions
contemplated by this Agreement in the same manner as if there had
been no conditions or defaults and without any reduction in the
Purchase Price and without any further claim against Seller.
(b)
If this transaction does not close as a result of default by Purchaser,
Seller, as and for its sole and exclusive remedy, shall retain the
Deposit and all interest earned thereon, as liquidated damages and
not as a penalty for forfeiture, actual damages being difficult or
impossible to measure.
(c) Neither party shall be entitled to exercise any remedy for a default by
the other party, except failure to timely close, until (i) such party has
delivered to the other notice of the default and (ii) a period of ten
calendar (10) business days from and after delivery of such notice has
expired with the other party having failed to cure the default or
diligently pursued remedy of the default.
10. RISK OF LOSS
The Seller shall have all risk of loss or damage to the Property by fire or
other casualty, or acts of God, until title to the Property is transferred to
Purchaser on the Closing Date.
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11. DESIGNATION OF REPRESENTATIVES
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Purchaser and Seller have appointed the following persons on their
respective behalves to be their representatives, to wit:
On behalf of Purchaser:
City of Miami
Department of Public Facilities
Laura Billberry, Director
444 SW 2 Avenue, 3rd Floor
Miami, FL 33130
Telephone No.: (305) 416-1401
Fax (305) 416-2156
With a copy to:
Julie O. Bru , City Attorney
City of Miami
444 SW 2 Avenue, Suite 945
Miami, FL 33130
12. NOTICES
On behalf of Seller:
Mr. David Miller
551 NW 71 Street
Miami, FL 33130
Telephone No. (305) 757-5526
With a copy to:
Gary S. Glasser, Esq.
28 West Flagler Street #608
Miami, FL 33130
Telephone No. (305) 377-4187
Fax No. (305) 358-7587
All notices or other communications which may be given pursuant to this
Agreement shall be in writing and shall be deemed properly served if
delivered by personal service or by certified mail addressed to Seller and
Purchaser at the address indicated herein. Such notice shall be deemed
given on the day on which personally served; or if by certified mail, on the
fifth day after being posted or the date of actual receipt, whichever is earlier:
Purchaser: Seller:
City of Miami
Pedro G. Hernandez, City Manager
444 S.W. 2nd Avenue, 10th Floor
Miami, FL 33130
David Miller and Walter R. Miller
551 N.W. 71st Street
Miami, FL 33130
Telephone No.: (305) 757-5526
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Copies To:
City of Miami
Laura Bilberry, Director
Department of Public Facilities
444 S.W. 2nd Avenue, 3rd Floor
Miami, FL 33130
Julie O. Bru, City Attorney
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
13. CAPTIONS AND HEADINGS
Copies To:
Gary S. Glasser, Esq.
28 West Flagler Street #608
Miami, FL 33130
Telephone No. (305) 377-4187
Fax No. (305) 358-7587
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The Section headings or captions appearing in this Agreement are for
convenience only, are not part of this Agreement, and are not to be
considered in interpreting this Agreement.
14. BINDING EFFECT
This Agreement shall bind and inure to the benefit of the parties hereto and
their successors in interest. Purchaser may assign or pledge this Agreement
only with the prior written consent of the City Manager which consent may
be withheld for any or no reason whatsoever.
15. GOVERNING LAW
This Agreement shall be governed according to the laws of the State of
Florida and venue shall be in Miami- Dade County, Florida.
16. AWARD OF AGREEMENT
Seller represents and warrants that it has not employed or retained any
person employed by the Purchaser to solicit or secure this Agreement and
that it has not offered to pay, paid, or agreed to pay any person employed by
the Purchaser any fee, commission percentage, brokerage fee, or gift for the
award of this Agreement.
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17. CONFLICT OF INTEREST
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The Seller covenants that no person under its employ who presently
exercises any functions or responsibilities in connection with purchase and
sale of the Property has any personal financial interest, direct or indirect, in
this Agreement, except for the interest of the Seller in the sale of the
Property. The Seller is aware of the conflict of interest laws of the City of
Miami (Code of the City of Miami, Florida, as amended, Chapter 2, Article
V), Miami -Dade County, Florida (Dade County Code Section 2-11-1) and the
State of Florida (Chapter 112, Florida Statutes), and agrees that it shall
comply in all respects with the terms of said laws and any future
amendments, as well as all other federal or state laws or regulations
applicable to the transaction that is the subject matter of this Agreement.
18. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which shall constitute one and
the same Agreement.
19. WAIVERS
No waiver by either party of any failure or refusal to comply with its
obligations shall be deemed a waiver of any other or subsequent failure or
refusal to comply. All remedies, rights, undertaking, obligations and
agreement contained herein shall be cumulative and not mutually exclusive.
20. SURVIVAL OF REPRESENTATIONSIWARRANTIES
The representations and warranties contained in this Agreement shall
survive the Closing and be enforceable by the respective parties until such
time as extinguished by law.
21. PARTIAL INVALIDITY
In the event that any provision of this Agreement shall be unenforceable in
whole or in part, such provision shall be limited to the extent necessary to
render same valid, or shall be excised from this Agreement, as circumstances
require, and this Agreement shall be construed as if said provision had been
incorporated herein as so limited, or as if said provision had not been
included herein, as the case may be.
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22. WAIVER OF TRIAL BY JURY
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The parties hereby knowingly, voluntarily and intentionally waive any right
they may have to a trial by jury, waiver of right to file permissive
counterclaims, or waiver of right to claim attorney's fees in respect to any
litigation arising out of, under or in connection with this Agreement, or any
course of conduct, course of dealing, statements (whether verbal or written)
or actions of any party hereto. This provision is a material inducement for
Purchaser and Seller entering into this Agreement.
23. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties. There
are no promises, agreements, undertakings, warranties or representations,
oral or written, express or implied, between the parties other than as herein
set forth. No amendment or modification of this Agreement shall be valid
unless the same is in writing and signed by the City Manager on behalf of
the Seller and the Purchaser.
24. TIME OF THE ESSENCE
Time is of the essence of this Agreement and in the performance of all conditions
and covenants to be performed or satisfied by either party hereto. Whenever a date
specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be
extended to the next succeeding business day.
25. EFFECTIVE DATE/TIME OF ACCEPTANCE
The Effective Date of this Agreement shall be the date on which the last
party to this Agreement executes said Agreement, the Agreement has been
approved by the Miami City Commission and the Seller has been notified in
writing of the approval.
26. AUTHORITY OF CITY MANAGER
The Resolution of the City Commission shall, in addition to approving the
purchase contemplated under this Agreement, empower the City Manager to
modify this Agreement in the event a modification to this Agreement
becomes necessary or desirable.
27. APPROVAL BY THE MIAMI CITY COMMISSION.
This Purchase and Sale Agreement is subject, as a condition precedent, to
the approval of the Miami City Commission.
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28. THIRD PARTY BENEFICIARIES
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Neither Seller nor the Purchaser intends to directly or indirectly benefit a
third party by this Agreement. Accordingly, therefore the parties agree that
there are no third party beneficiaries to this Agreement and that no third
party shall be entitled to assert a claim against the City based upon this
Agreement.
29. BROKER'S COMMISSION
The Seller represents and warrants that they have hired a broker by the
name of who is entitled to a Commission. Seller
agrees to indemnify, covenant not to sue, hold and save harmless and defend
the Purchaser, its officials and employees from any claim, demand or
liability for commissions, alleged statutory or regulatory violations, breaches
of contract relating to the subject matter of this Agreement, inclusive of
court costs, principal, interest, made on behalf of a broker, tenant, third part
y beneficiary or other person or entity. Seller agrees to pay any and all real
estate commissions claimed in this transaction.
30. ASSIGNMENT
This Agreement, or any interest therein, shall not be assigned, transferred or
otherwise encumbered under any circumstances by either party without
the prior written consent of the other party, which may be unreasonably
refused.
15
10/14/2008
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the day and year first above written.
"SELLER"
By:
Witness David Miller
Witness
By:
Witness Walter R. Miller
Witness
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned authority, personally appeared and
, who first being duly sworn, depose and say that they executed the above
instrument for the purposes therein expressed.
(NOTARY PUBLIC)
SEAL
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
Notary Public
EMS DOCUMENT IS A
SUBSTITUTION TO ORIGINAL
BACKUP. ORIGINAL CAN BE SEEN
AT THE END OF THIS DOCUMENT.
16
THIS DOCUMENT IS A
SUBSTITUTION TO ORIGINAL
BACKUP. ORIGINAL CAN BE SEEN
AT THE END OF THIS DOCUMENT.
Attest:
10/14/2008
"PURCHASER"
THE CITY OF MIAMI, A municipal
corporation of the State of Florida
By:
Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager
Approved as to Form and Correctness Approved as to Insurance
Requirements
Julie O. Bru, City Attorney LeeAnn Brehm, Director
Risk Management
STATE OF FLORIDA)
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
2008 by Pedro G. Hernandez, as City Manager for the City of Miami, a municipal
corporation of the State of Florida.
(NOTARY PUBLIC)
SEAL
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
Notary Public
17
THIS DOCUMENT IS A
SUBSTITUTION TO ORIGINAL
BACKUP. ORIGINAL CAN BE SEEN
AT THE END OF THIS DOCUMENT.
EXHIBIT "A"
10/14/2008
Parcel 1 located at 551 NW 71 St, Miami, Florida, under Folio No. 01-3112-025-0010 and
Parcel 2 located at 7142 NW 5 Ct, Miami, Florida under Folio No. 01-3112-025-0050
Lots 1 through 5, less the West 20.05 feet of Lot 1, and less the West 23.49 feet of Lots 3, 4
and 5, Block 2 of DUEY'S SUBDIVISION, according to the Plat thereof recorded in Plat
Book 11, Page 34, of the Public Records of Dade County, Florida
Parcel 3 located at 7148 NW 5 Ct, Miami, Florida, under Folio No. 01-3112-025-0060
Lot 6, less beginning 102.32 feet West of the SE Corner of Lot 6, continue West 26.74 feet, thence
North 48.20 feet, thence East 27.21 feet, thence Southwesterly 48.71 feet to the point of beginning,
in Block 2, DUEY'S SUBDIVISION, according to the Plat thereof, recorded in Plat Book 11, at Page
34 of the Public Records of Dade County, Florida
18
(b)
SUBSTITUTED
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, (the "Agreement") is made
d entered into this. day of by and between
D vid Miller and Walter R. Miller, as Tenants in Common, with offices at 551 N.W.
. 7-1. " reet, Miami,.. FL._33.13.0 _(the. "Seller") and the City of Miami, a municipal
corpo : tion of the State of Florida, with offices at 444 SW 2 Avenue, Miami, Florida
33130-1 10 (the "Purchaser"). 'The Parties hereby agree that Seller shall sell and
Purchase shall buy the following property upon the following terms and
conditions:
1, DESCRI' ION OF PROPERTY/PURP•SE OF AC
UISITION
The Propertie located at 551 NW 71 Street 7192 and 7148 NW 5 Court
Miami, Florida, as legally described on Exhibit "A", attached and
incorporated, here' •after referred to as the "Property"
2. PURCHASE PRICE D PAYMENT
The Purchaser agrees to p- _ and the Seller agrees to accept for the Property
_the sum_ oL_Qne . Million_ ' _ o Hundred Seventy, Seven Thousand Five
Hundred ($1,277,500) Dollars e "Purchase Price").
There have been two (2) appra -als of the Property procured by the
Purchaser, the average of which is sne Million Two Hundred Seventy Seven
Thousand Five Hundred ($1,277,500) Dol s.
The Purchase Price, as it may be adjusted, ill be payable as follows:
(a) Deposit: Within forty-five (45) da of the Effective Date as •
defined herein, the Purchaser shall pay to (the
"Escrow Agent"), Sixty Three Thousand Eigbt Hundred and Seventy
Five ($63,875) Dollars as a deposit (the "Depot"). The Deposit shall
be held by the Escrow Agent in an interest acing account, with
interest accruing to Purchaser, unless the Deposi 's disbursed to the
Seller upon Purchaser's default. At Closing, the Deposit and all
interest earned theieon,.shall be delivered by.the Esc W Agent to the
Seller and credited against the Purchase Price. The D osit is non-
refundable except in the event Purchaser terminates this greement
as provided herein.
Closing Payment: At Closing, the Deposit, plus the balance b(the
Purchase Price, adjusted by adjustments, credits, prorations, or\as
otherwise provided in this Agreement, shall be paid by the Purchase
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to the Seller in the form of cashier's check, certified check, official
bank check or wire transfer.
CONDITIONS PRECEDENT TO CLOSING, PERFORMANCE BY
SELLER.
As a condition precedent to Closing, but not later than the expiration
date of the Investigation Period, as defined in Section 4 (b) below, the
eller shall have fully performed, at its sole cost and expense, and
p •vided Purchaser evidence of completion of the following
un. - takings:
(i)
ponsibility of removing all debris and/or miscellaneous
materials from Property not later than fifteen (15) days prior to
closin. Accordingly, no later than thirty (30) days prior to
closing, he parties shall meet at the Property for the purpose of
inspectin and agreeing in writing on any remaining debris
and/or mis llaneous materials still on the Property. Each
party shall si off on the report and provided with a copy of
same. No late han the 15 day period provided in the first
_ sentence of this p agraph, the parties shall again meet at the
Property with their eports in order to verify that Seller has
removed all the items et forth in the report. In the event any
items on the report rem 'n on the Property, then in that event
Purchaser shall be entitl to a credit against the Purchase
Price for its cost of remova of such remaining debris and/or
miscellaneous materials at cl ing. The Seller shall have no
recourse from the granting of thi credit.
(ii) The Property shall be vacant of all"enants and the Property
shall be free of all debris.
(b) Seller shall warrant to Purchaser that, at the t'h e of closing, there
are no parties in possession of the Property other th\Seller, and that
there are no oral or written leases, options to urch`�e, or contracts
P P
for sale covering all or part of the Property. Sellei`\shall further
warrant that there are no parties having ownership of i\ :rovementa
on the Property and no parties having any interest in th- 'roperty.
Seller represents and warrants that it has previously furnish- . to the
City copies of any written leases, options for purchase., rights . first
refusal, contracts for sale, estoppel letters for each Tenant, = nd
cancellation, discharge or extinguishment of same.
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(c) In the event that any one of the foregoing conditions is not satisfied on
or before the expiration date of the Inspection Period, the Purchaser
shall have the right, in its sole discretion, to (i) terminate this
Agreement, whereupon the Escrow Agent shall immediately deliver to
Purchaser the Deposit and the parties shall be relieved of al] further
responsibilities and obligations hereunder,. or (ii) extend the Closing
ate by not more than thirty (30) days to allow the Seller to comply
the conditions precedent.
4. TTERS
(a) Definition
For purpose f this Agreement:
The term "Ha .ardous Materials" shall mean and include without
limitation, any substance, which is or contains (A) any "hazardous
substance" as no or hereafter defined in the Comprehensive
Environmental Respbnse, Compensation, and Liability Act of 1980, as
amended (42 U.S.C.;\Section 9601 et seq.) ("CERCLA") or any
regulations promulgated under or pursuant to CERCLA; (B) any
_'hazardous _waste". as . nip or. hereafter _ defined .in...the . Resource
Conservation and Recovery\Act (42 U.S.C., Section 6901 et seq.); (C)
any substance regulated by he Toxic Substances Control Act (15
U.S.C., Section 2601 et. Seq. • (D) gasoline, diesel fuel, or other
petroleum hydrocarbons; (E) asbestos and asbestos containing
materials, in any form, whett'her friable or non -friable; (F)
polychlorinated biphenyls; and (G), any additional substances or
material which: (i) is now or hereafte classified or considered to be
hazardous or toxic under Environments Requirements as hereinafter
defined; (ii) causes or threatens to cause a uisance on the Property or
adjacent property or poses or threatens to p se a hazard to the health
or safety of persons on the Property or adjace property; or (iii) would
constitute a trespass if it emanated or migrate rom the Property.
The term "Environmental Requirements" shalt mean all laws,
ordinances, _ statutes, codes, ._ rules, regulatio s, agreements,
judgments, orders and decrees, now or her fter enacted,
promulgated, or amended of the United States, the State of Florida,
Miami -Dade County, the City of Miami, or any of r political
subdivision, agency or instrumentality exercising jurisdicti over the
Seller or the Purchaser, the Property, or the use of the operty,
relating to pollution, the protection or regulation of human ealth,
natural resources, or the environment, or the emission, disch rge,
release or threatened release of pollutants, contaminants, chemic Is,
3
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9/26/2008
or industrial, toxic or hazardous substances or waste or Hazardous
Materials into the environment (including, without limitation,
ambient air, surface water, groundwater, land or soil).
Inspection Period:
Purchaser, its employees, agents, consultants and contractors shall
have a period of ninety (90) days from the Effective Date (the
nvestigation Period") in which to undertake at Purchaser's expense,
s h physical inspections and other investigations of and concerning
the roperty. Said inspections may include, but are not limited to
surve , soil borings, percolation, engineering studies, environmental
tests a • studies and other tests as Purchaser considers necessary for
Purchase and his consultants to review and evaluate the physical
characteris "es of the Property and to perform certain work or
inspections i connection with such evaluation (the "Environmental
Inspection") a r giving the Seller reasonable notice prior to each test
performed. Th Purchaser, at its sole option, may extend the
Investigation Per • for an additional ninety (90) days if based upon
the results of the t ting, additional testing is warranted. For the
purpose of conductin: the Environmental Inspection, Seller hereby
grants to Purchaser an• ifs 'consultants and agents or a'ssigris, -full
right of entry upon the Pr• •erty during the Inspection Period through
the closing date. The right i access herein granted shall be exercised
and used by Purchaser, its - I ployees, agents, representatives and
contractors in such a manner a not to cause any material damage or
destruction of any nature whatso er to, or interruption of the use of
the Property by the Seller, its empl• ees, officers, agents and tenants.
(c) Inspection Indemnit Insurance an
ases:
Notwithstanding anything contained in this Agreement to the
contrary, as consideration for the Seller gran.'ng a continuing right of
entry, the Purchaser hereby specifically agrees o: (i) immediately pay
or cause to be removed any liens filed against th Property as a result
of any actions taken by or on behalf of Purchaser n connection with
the inspection of the -Property; (ii) immediately repa and restore the
Property to its condition existing immediately prior t• the Inspection
Period; and (iii) to the extent permitted, and subject to t a limitations
afforded governmental agencies by law, indemnify, defe • and hold
harmless Seller, its employees, officers and agents, from a . against
all claims, damages or losses incurred to the Property, or an one on
the Property as a result of the actions taken by the Purchaser, ny of
its employees, agents, representatives or contractors, with respe• to
the inspection of the Property, provided, however, Purchaser shall •t
4
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9/26/2008
be liable for the negligence or misconduct of Seller, its employees,
officers and agents, or anyone employed by any of then.
Prior to Purchaser entering upon the Property for purposes of
ommencement of the Environmental Inspection, Purchaser shall
f nish to Seller the policy or policies of insurance or certificates of
insrance, protecting the Purchaser, during the course of such testing,
agai .t all claims for personal injury and property damage arising out
of or r4 ated to the activities undertaken by the Purchaser, its agents,
employ, consultants and contractors, or anyone directly or
indirectlyoyed by any of them or anyone for whose acts they may
be liable, up n the Property or in connection with the Environmental
Inspection.
(d) Remedies/Right o\rermination:
If Purchaser discovers, during the Investigation Period, the presence
of Hazardous Materials on the Property in levels or concentrations
which exceed the stancrds set forth by DERM, the State or the
Federal Government (an "Environmental Condition"), prior to the end
of the Inspection.Period, Piixchaser shall notify Seller_:in_writing.and.
deliver to Seller copies of"�+ 11 written reports concerning such
Environmental Condition (the ''Environmental Notice"), together with
a cost estimate prepared by Pu chaser's environmental consultant
setting forth the estimated cot of the remediation of the
Environmental Condition (the "Cost stimate"). The Purchaser shall
have fifteen (15) business days fro the date they receive the
Environmental Notice and the Cost Esti ate, to negotiate a mutually
agreeable remediation protocol. In the a nt the Purchaser and the
Seller are unable to reach an agreement with respect thereto within
the fifteen (15) business day period provided herein, the parties shall
have the right within five (5) business days d he expiration of the
fifteen (15) business day period to terminate his Agreement by
written notice to the other party whereupon (i) al "property data and
all studies; analysis, reports and plans respecti the Property
delivered by the .Purchaser to the Seller shall be returned and
delivered to the Purchaser by the Seller; and then "i) except as
otherwise hereafter provided in this Section, the p ties shall
thereupon be relieved of any and all further responsibility ereunder
and neither party shall have any further obligation on behalf of the
other; and (iii) Purchaser shall be refunded the Deposit ai I any
interest earned.
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(e) Waiver and Release:
In the event that Purchaser does not elect to cancel this Agreement.,
Purchaser acknowledges and agrees that the sale of the Property as
provided for herein is made on an "AS IS" condition and basis with all
faults: - - . .
(E) Se er's Re.resentations Regarding Lack of Knowledge of
Env o mental Conditions:
Seller r •resents and warrants to Purchaser that although Seller has
been oper- ting the Property as an auto service business, to the best of
Seller's kn• ledge but without making independent inspection or
inquiry:
(i) The roperty is presently free from contamination by
Hazardous Materia and the Property and the activities conducted
thereon do not pose -ny significant hazard to human health or the
environment or violate : ny applicable Environmental Laws. There is
no evidence of any exis 'ng release of Hazardous Materials at the
P.roperty.... .. .
(ii) There are no s face impoundments, lagoons, waste
piles, landfills, injection wells, underground storage areas on the
Property. Neither Seller nor a third persons have buried or
released Hazardous Materials on e Property, including the soil,
surface water and ground water.
(iv) There has been no treat sent, or release of any
Hazardous Materials on land adjacent or n:-r to the Property which
may constitute a risk of contamination of th - Property or surface or
ground water flowing to the Property.
(v) No inspection, audit, inquiry or othe investigation has
been or is being conducted by any governmental age or other third
person with respect to the presence or discharge •f Hazardous
Materials at the Property or •the quality of the air, surface' or
subsurface conditions at the Property. Seller has receive no notice
that any such inspection, audit, inquiry or investigation is p ding or
proposed, nor has Seller or any previous owner of the `..perty
received any warning notice, notice of violation, administ -tive
complaint, judicial complaint or other formal or informal noce
alleging that Hazardous Materials have been stored or released at t
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Property or that conditions on the Property are in violation of any
Environmental Laws.
TITLE EVIDENCE AND SURVEY
ithin five (5) days of the Effective' Date, Seller shall -deliver to• Purchaser
sutitle policy(ies), title commitments, abstract of title, or other evidence of
title : nd such survey(s) of the Property as Seller may have in its possession
or of hich it may have knowledge. Purchaser shall be responsible for
obtainin_ at its sole cost, (i) a commitment for title insurance, from a
recognizeit]e insurance company authorized to issue title insurance in the
State of Flo •da, agreeing to insure Purchaser's title, free of all exceptions,
except those\khat may be accepted by Purchaser, together with all
corresponding title documents, and (ii) a survey of the Property showing the
Property to be free, of encroachments or conditions that, in Purchaser's sole
discretion, would affect its proposed sue of the Property. Purchase shall .
have a period equal to"lhe Inspection Period in which to obtain and examine
the survey and the title'eommitment and submit to the Seller its objections
(the "Title Defect"). Selle},sha11 have a period of thirty (30) calendar days
after its receipt of Purchaser's, notice in which to cure the Title Defect. Seller
shall use good faith -efforts to cikre any Title Defect. - - • - • - • • • --• -..
If. Seller shall be unable to convey title to the Property according to •
provisions of this Agreement, Purchaser may: (i) elect to accept such title
that Seller may be able to convey, with no reduction in Purchase Price; or (ii)
terminate this Agreement, in which cash the Deposit and all interest earned
thereon shall be returned by Escrow Agent to Purchaser. Upon such refund,
this Agreement shall be null and void arid the parties hereto shall be
relieved of all further obligation and liability, and neither party shall have
any further claims against the other.
6. CLOSING PLACE AND DATE
Unless otherwise extended by other provisions of this Agreement, closing
shall take place within one hundred and eighty (180) days,after the Effective
• Date, -at. a mutually agreeable time. (the -"Closing') -at-the City .of Miami,
Department of Public Facilities located at 444 SW 2 Aven'e, Suite 325,
Miami, Florida or at such other location within the City of Mi mi that the
Purchaser may designate in writing by affording a notice to Seller as
provided herein. The parties may, subject to mutual written a •-ement,
establish an earlier or extend the date for Closing.
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CLOSING DOCUMENTS
(a) Seller's Closing Documents:
(b)
9/26/2008
At Closing, Seller- shall execute and/or deliver to Purchaser the
following documents, in form and substance acceptable to the
Purchaser's City Attorney:
(I), Statutory Warranty Deed;
(2) s A Closing Statement;
(3) A Seller's Affidavit and a Non -Foreign Affidavit;
(4) A. Bill of Sale for all personal property and fixtures on the
Property;
(5) Evidence of compliance with the Conditions Precedent.
(6) Such other documents as are necessary to fully authorize the
sale of the Property and the execution of all closing documents;
(7) An affidavit reaffirming the warranties and representations set
forth herein and certifying compliance with all Conditions
Precedent.
Purchaser's Closing Documents:
At Closing, Purchaser shall ecute and deliver to Seller the following:
(1) Closing Statement; \
(2) Such documents as are ecessary to fully authorize the
purchase of the Property a d the execution of all closing
documents; '\
(3) Such other documents as are \necessary to authorize the
purchase of the Property and texecution of all closing
documents.
(c) Other Contract Documents:
.Seller acknowledges that the property is bei acquired by a
governmental agency and that the transaction m be subject 'to
certain federal, state and local requirements, which in ude reporting
and disclosure of information.
Seller agrees to comply with the public disclosure and i spection
requirements under Chapter 119, Florida Statutes, disclo re of
beneficial interests under Section 286.23, Florida Sta tes,
certification regarding conflict of interest under Chapter 112, Flo da
8
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tatutes, Chapter 2 of the Miami City Code and §2-11-1 of the Miami -
de County Code, certification regarding Public Entity Crimes under
Se• ion 287.133, Florida Statutes, and in connection therewith, Seller
agre.s to execute and deliver all documents required or requested by
Purch er or any other governmental authority, including, but not
• limited - • -- • -
(1) Con 'ct of Interest and Non -Collusion Affidavit; and
(2) Sworn Disclosure of Beneficial Interests in Seller in Seller
(3) Seller i a partnership, limited partnership, corporation, or
trust, and
(4) Public Enti Crime Affidavit.
Additionally, if prope ty is acquired with federal funds, the Seller
shall provide the Purch. -er with a Receipt of Disclosures and Notices
under the Uniform ' : ocation Assistance and Real Property
Acquisition Policy Act of :70, as amended from time to time, and
Seller shall comply with uch other certification or reporting
requirements as may be requi ed under the Program Regulations or
applicable federal and state laws .r regulations.
8. CLOSING CO T AND AD
U TMEN
At Closing, the following items shall be borne, adjusted, prorated or assumed
by or between Seller and Purchaser as follows:
(a) Adjustments and Prorations:
(1) Certified/Pending Liens: Certified, co rmed and ratified
governmental hens as of the Closing Da e shall be paid by
Seller. Pending liens as of the Closing Dat shall be assumed
by Purchaser.
(2) Other Taxes Expenses Interest Etc: Taxes, : ssessments,
water and sewer charges, waste fee and fire protec on charges,
• . . - - if applicable, shall be prorated.
(3)
Usual and Customary: Such other items that are usually and
customarily pro -rated between purchasers and sellers, of
properties in the area where the Property is located. All pb-
rations shall utilize the 365-day method.
9
(b)
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Closing Costs:
(1) Each party shall be responsible for its own attorney's fees incurred
in connection with the Closing.
Seller will pay the documentary stamps and surtax on the deed.
(3) ) rchaser shall pay all other closing and recording costs incurred
in nnection with the sale and purchase of the Property described
in th. Agreement, including all recording charges, filing fees
payabl- in connection with the transfer of the Property hereunder.
9. DEFAULT
(a)
(b)
(c)
If this transactio
Purchaser, in additi
equity, shall have th
receive the return of the
any such conditions or de
contemplated by 1, his Agree
been no conditions or defau
Purchase Price and without any
does. not close as a result of default by Seller,
n to al] other remedies available at law or in
right to: (i) terminate this Agreement and
eposit and all interest thereon; or (ii) waive
ults and to consummate the transactions
ent in the same manner as if there had
s and without any reduction in the
urther claim against Seller.
If this transaction does not close a . result of default by Purchaser,
Seller, as and for its sole and excl.sive remedy, shall retain the
Deposit and all interest earned thereo as liquidated damages and
not as a penalty for forfeiture, actual . amages being difficult or
impossible to measure.
Neither party shall be entitled to exercise any medy for a default by
the other party, except failure to timely close, un. 1 (i) such party has
delivered to the other notice of the default and ") a period of ten
calendar (10) days from and after delivery of such notice has expired
with the other party having failed to cure the defau or diligently
pursued remedy of the default
10. RISK OF LOSS
The Seller shall have all risk of loss or damage to the Property by e or
other casualty, or acts of God, until title to the Property is transferre. to
Purchaser on the Closing Date.
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DESIGNATION OF REPRESENTATIVES
Purchaser and Seller have appointed the following persons on their
spective behalves to be their representatives, to wit:
On behalf of Purchaser:
City o iami
Departm nt of Public Facilities
Laura Bill.erry, Director
444 SW 2 A •nue, 3rd Floor
Miami, FL 33 0
Telephone No.: 05) 416-1401
Fax (305) 416-21
With a copy to:
Julie O. Bru , City Attor
City of Miami
444 SW 2 Avenue, Suite 94
Miami, FL 33130
12. NOTICES
On behalf of Seller:
Mr. David Miller
551 NW 71 Street •
Miami, FL 33130
Telephone No. (305) 757-5526
With a copy to:
Gary S. Glasser, Esq.
28 West Flagler Street #608
Miami, FL 33130
Telephone No. (305) 377-4187
Fax No. (305) 358-7587
All notices or other communications whic
Agreement shall be in writing and shall
delivered by personal service or by certified
Purchaser at the address indicated herein. S
given on the day on which personally served; or
fifth day after being posted or the date of actual rece
Purchaser: Seller:
may be given pursuant to this
e deemed properly served if
ail addressed to Seller and
h notice shall be deemed
by certified mail, on the
t, whichever is earlier:
City of Miami David Miller and Walter . Miller
Pedro G. Hernandez, City Manager 551 NW 71 Street
444 S.W. 2nd Avenue, 10,h FIoor Miami, FL 33130
Miami, FL 33130 Telephone No.: (305) 757-552
11
SUBSTITUTED
Copies To:
ty of Miami
La a Billberry, Director
Depa . ment of Public Facilities.
444 SV Avenue, 3rd Floor
Miami, 33130
Julie O. Bru, ty Attorney
444 SW 2 Avenu 9,h Floor
Miami, FL 33130
13. CAPTIONS AND • N S
Copies To:
Gary S. Glasser, Esq. •
28 West Flagler Street #608
Miami, FL 33130
Telephone No. (305) 377-4187
Fax No. (305) 358-7587
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The Section headings or .ptions appearing in this Agreement are for
convenience only, are not ..rt of this Agreement, and are not to be
considered in interpreting this : reement.
14. BINDING EFFECT
This Agreement shall bind and inure to he benefit of the parties hereto and
their successors in interest. Purchaser m. assign or pledge this Agreement
only with the prior written consent of the ' y Manager which consent may
be withheld for any or no reason whatsoever.
15. GOVERNING LAW
This Agreement shall be governed according to the aws of the State of
Florida and venue shall be in Miami- Dade County, Floot, a.
16. AWARD OF AGREEMENT
Seller represents and warrants that it has not employed or r ained any
person employed by the Purchaser to solicit or secure this Agree .ent and
that it has not offered to pay, paid, or agreed to pay any person emp , ed by
the Purchaser any fee, commission percentage, brokerage fee, or gift the
award of this Agreement.
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CONFLICT OF INTEREST
The Seller covenants that no person under its employ who presently
ercises any functions or responsibilities in connection with, purchase and
sa - of the Property has any personal financial interest, direct or. indirect, in
this ' greement, except for the interest of the Seller in the sale of the
Prope y. The Seller is aware of the conflict of interest laws of the City of
Miami ity of Miami Code Chapter 2, Article V), Dade County, Florida
(Dade Co ty Code Section 2-11-1) and the State of Florida (Chapter 112,
Florida Sta tes), and agrees that it shall comply in all respects with the
terms of said : ws and any future amendments, as well as all other federal
or state laws or egulations applicable to the transaction that is the subject
matter of this Agr: ment.
18. COUNTERPARTS
This Agreement may be ex=cuted in one or more counterparts, each of which
shall be deemed to be an or final but all of which shall 'constitute one and
the same Agreement.
19. WAIVERS
No waiver by either party of any fa . ure or refusal to comply with its
obligations shall be deemed a waiver of y other or subsequent failure or•-
refusal to comply. All remedies, right • undertaking, obligations and
agreement contained herein shall be cumulate e and not mutually exclusive.
20. SURVIVAL OF REPRESENTATION /WARR
IES
The representations and warranties contained in his Agreement shall
survive the Closing and be enforceable by the respect' ' - parties until such
time as extinguished by law.
21. PARTIAL INVALIDITY
In the event that any provision of this Agreement shall be unen • ceable in
whole or in part, such provision shall be limited to the extent nec• •sary to
render same valid, or shall be excised from this Agreement, as circums . nces
require, and this Agreement shall be construed as if said provision had een
incorporated herein as so limited, or as if said provision had not bean
included herein, as the case may be.
13
SUBSTITUTED
926/_008
WAIVER OF TRIAL BY JURY
The parties hereby knowingly, voluntarily and intentionally waive any right
hey may have to a trial by jury, waiver of right to file permissive
c. nterclaims, or waiver of right to claim attorney's fees in respect to any
.tion arising out of, under or in connection with this Agreement, or any
cour of conduct, course of dealing, statements (whether verbal or written)
or acti• s of any party hereto. This provision is a material inducement for
Purchas and Seller entering into this Agreement.
23. ENTIRE A
EEMENT
This Agreement •ntains the entire agreement between the parties. There
are no promises, a eements, undertakings, warranties or representations,
oral or written, expre s or implied, between the parties other than as herein
set forth. No amendm t or modification of this Agreement shall be valid
unless the same is in wr ing and signed by the City Manager on behalf of
the Seller and the Purchas
24. TIME OF THE ESSENCE
Time is of the essence of this Agreem t and in the performance of all conditions
and covenants to be performed or satisfi . by either party hereto. Whenever a date
specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be
extended to the next succeeding business da
25. EFFECTIVE DATE/TIME OF ACCEPTAE
The Effective Date of this Agreement shall be\the date on which the last
party to this Agreement executes said Agreement`, the Agreement has been
approved by the Miami City Commission and the Seller has been notified in
writing of the approval.
26. AUTHORITY OF CITY MANAGER
The Resolution of the City Commission shall, in addition to°$pproving the
purchase contemplated under this Agreement, empower the CitManager to
modify this Agreement in the event a modification to this Agreement
becomes necessary or desirable.
27. APPROVAL BY THE MIAMI CITY COMMISSION.
This Purchase and Sale Agreement is subject, as a condition precedent, to
the approval of the Miami City Commission.
14
SUBSTITUTED
926/_008
WAIVER OF TRIAL BY JURY
The parties hereby knowingly, voluntarily and intentionally waive any right
hey may have to a trial by jury, waiver of right to file permissive
c.'unterclaims, or waiver of right to claim attorney's fees in respect to any
litr:ation arising out of, under or in connection with this Agreement, or any
tourof conduct, course of dealing, statements (whether verbal or written)
or acti s of any party hereto. This provision is a material inducement for
Purchas: and Seller entering into this Agreement.
23. ENTIRE A r • EMENT
This Agreement ontains the entire agreement between the parties. There
are no promises, reements, undertakings, warranties or representations,
oral or written, expr =s or implied, between the parties other than as herein
set forth. No amend nt or modification of this Agreement shall be valid
unless the same is in w ; ting and signed by the City Manager on behalf of
the Seller and the Purcha r.
24. TIME OF THE ESSENCE
Time is of the essence of this Agree •ent and in the performance of all conditions
and covenants to be performed or satis ed by either party hereto. Whenever a date
specified herein shall fall on a Saturday, unday or legal holiday, the date shall be
extended to the next succeeding business
25. EFFECTIVE DATE/TIME OF ACCEPT CE
The Effective Date of this Agreement shall b the date on which the last
party to this Agreement executes said Agreeme , the Agreement has been
approved by the Miami City Commission and the -ller has been notified in
writing of the approval.
26. AUTHORITY OF CITY MANAGER
The Resolution of the City Commission shall, in addition :' approving the
purchase contemplated under this Agreement, empower the C Manager to
modify this Agreement in the event a modification to thi- Agreement
becomes necessary or desirable.
27. APPROVAL BY THE MIAMI CITY COMMISSION.
This Purchase and Sale Agreement is subject, as a condition precedent,
the approval of the Miami City Commission.
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SUBSTITUTED
9/26/2008
THIRD PARTY BENEFICIARIES
Neither Seller nor the Purchaser intends to directly or indirectly benefit a
ird party by this Agreement. Accordingly, therefore the parties agree that
thb e are no third party beneficiaries to this Agreement and that no third
partjshalI be entitled to assert a claim against the City based upon this
Agreement..
29. BROKER' COMMISSION
The Seller reptgsents and warrants that they have hired a real estate broker
by the name of\ r. Harold Greenblatt who is entitled to a Commission.
Seller agrees to demnify, hold and save harmless and defend the
Purchaser, its officia and employees from any claim, demand or liability for
commissions, alleged s*tutory or regulatory violations, breaches of contract
relating to the subject matter of this Agreement, inclusive of court costs,
principal, interest, made 'an behalf of a broker, tenant, third part y
beneficiary or other person ci,L,entity. Seller agrees to pay any and all real
estate commissions claimed in t 's transaction.
30. ASSIGNMENT
This Agreement, or any interest therein, hall not be assigned, transferred or
otherwise encumbered under any circ tances by either party without
the prior written consent of the other pa , which may be unreasonably
refused.
IN WITNESS WHEREOF, the parties hereto .ve duly executed this
Agreement, as of the day and year first above written.
15
SUBSTITUTED
Bess
Witnes
Witness
Witness
STATE OF FLORIDA
COUNTY OF MIAM-DADE )
9/26/2008
"SELLER"
By:
David Miller
By:
Walter R. Miller
BEFORE ME, the under ':ned authority, personally appeared and
, who first being duly s •rn, depose and say that they executed the above
instrument for the purposes therein exp ssed.
(NOTARY PUBLIC)
SEAL
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
16
Notary Public
SUBSTITUTED
test:
9/26/2008
"PURCHASER"
THE CITY OF MIAMI, A municipal
corporation of the State of Florida .
By:
Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager
Approved as t Form and Correctness Approved as to Insurance
Requirements
Julie 0. Bru, CityAtto ey LeeAnn Brehm, Director
Risk Management
STATE OF FLORIDA) .
COUNTY OF DADE )
The foregoing instrument was acknledged before me this day of
2008 by Ped o H-rn:ndea :s Cit Ma a for the Cit of Miami a wunici al
corporation of the State of Florida.
(NOTARY PUBLIC)
SEAL
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
17
tary Public
SUBSTITUTED
9%26/2008
EXHIBIT "A"
Parcel located at 551 NW 71 St, Miami, Florida, under Folio No. 01-3112-025-0010 and
P rce 2 • cat e • ut 7.42 NW 5 Miami Flori • : under Folio No. 0-3112-025-0050
Lots 1 throug 5, less the West 20.05 feet of Lot 1, and less the West 23.49 feet of Lots 3, 4..
and 5, Block 2 DUEY'S SUBDIVISION, according to the Plat thereof recorded in Plat
Book 11, Page 34, • . the Public Records of Dade County, Florida
1 • Gated a 71
NW 5
Miami Fl
r'd under Folio No. 01-3112-025-00
0
Lot. 6, less beginning 102.32 -et West of the SE Corner of Lot 6, continue West 26.74 feet, thence
North 48.20 feet, thence East '.21 feet, thence Southwesterly 48.71 feet to the point of beginning,
in Block 2, DUEY'S SUBDIVISI• , according to the Plat thereof, recorded in Plat Book 11, at Page
34 of the Public Records of Dade Co • ty, Florida
18