HomeMy WebLinkAboutCRA-R-15-0021 ExhibitPURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of this of 2015 (the "Effective Date") by and between
OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY
(hereafter referred to as "Seller"), and 14th Street Development LLC, a Florida limited liability
company (hereafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller is the owner of that certain parcel of real property and its associated
improvements located at 1441 North Miami Avenue, Miami, Florida; and
WHEREAS, Seller desires to convey such property to Purchaser, and Purchaser desires to
purchase such property from Seller, all in accordance with the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Property.
Subject to and in accordance with the terms and conditions set forth herein, Seller hereby
agrees to bargain, sell and convey the following described property (hereafter referred to
collectively as the "Property") to Purchaser, and Purchaser hereby agrees to purchase the
Property from Seller:
The Property to be conveyed hereunder to Purchaser consists of that certain improved
parcel of land known as 1441 North Miami Avenue (Tax Folio No.: 01-3136-005-1110), such
lands being more particularly described in Exhibit A, attached hereto and incorporated herein by
reference, together with (i) all other improvements thereon, (ii) all interests of Seller in any land
lying in the bed of any street, alley, road or avenue, whether open or proposed, in front of or
adjoining such real property, (iii) all of the Seller's rights of way or use, riparian rights, water
rights, profits, easements, corporeal and incorporeal hereditaments, benefits, privileges,
appurtenances, including but not limited to air and development rights, and advantages
appertaining to such real property, and (iv) to the extent assignable or transferable by Seller, any
and all governmental or quasi -governmental approvals, authorizations, licenses, permits,
certificates, and other orders, and any pending applications therefor, pertaining to such real
property.
2. Purchase Price.
The purchase price for the Property is One Million Five Hundred Eighty Thousand and
No/100 Dollars ($1,580,000.00) (the "Purchase Price") consisting of One Million Two Hundred
Eighty Thousand and No/100 Dollars ($1,280,000.00) (the "Cash Purchase Price") and ten (10)
parking spaces in Buyer's expected development project, transferred to Seller by perpetual,
assignable easement in Purchaser' s adj acent property with a total agreed to value of Three
Hundred Thousand and No/100 Dollars ($300,000.00).
2.1 Deposit. Promptly following the execution and delivery of this
Agreement by the Purchaser, Purchaser has or shall deliver to Levinson Gritter & DiGiore LLP
(the "Escrow Agent"), by wire transfer, the amount of One Hundred Fifty Thousand and
NO/100 Dollars ($150,000.00) (the "Deposit") as an earnest money deposit toward the Purchase
Price. The Deposit shall be deposited by the Escrow Agent into an interest bearing escrow
account under the taxpayer identification number of the Purchaser, and the Deposit, plus accrued
interest thereon, shall be either applied toward the Purchase Price at the Closing in the event that
the Closing shall occur under this Agreement, or shall be disbursed promptly to Purchaser or to
the Seller as hereinafter provided in the event that this Agreement shall be terminated. Except as
otherwise provided in this Agreement, the initial $150,000.00 deposit shall become non-
refundable at 6:00 p.m. Eastern Time on
2.2 Balance of the Purchase Price. The balance of the Cash Purchase Price
(the Cash Purchase Price less the Deposit and accrued interest thereon) shall be paid in full at the
Closing by wire transfer.
3. Closing.
Subject to the provisions of paragraph 5, the closing of the purchase and sale shall be
held via reliable overnight delivery service at the offices of the Escrow Agent (hereinafter
defined), for the Property on or about thirty (30) calendar days following expiration of the
Inspection Period or such other time and date as may be mutually agreed upon in writing by
Seller and Purchaser (the "Closing"). Purchaser shall have the right to extend the Closing for a
period of thirty (30) calendar days upon providing Seller with five (5) business days written
notice prior to the initial Closing and by depositing an additional non-refundable deposit of
Twenty Five Thousand and no/100 Dollars ($25,000.00) which Deposit shall be applied as set
forth in Paragraph 2.1 above.
4. Intentionally Omitted.
5. Purchaser's Record Review and Right of Entry and Inspection.
5.1 Within Five (5) calendar days of the Effective Date, the Seller shall provide the
Purchaser with (i) a copy of the existing owner's title policy and exceptions, (ii) copy of existing
survey, and (iii) any existing environmental, appraisal, zoning or third party reports, (all of the
above being described as the "Books and Records").
5.2 Purchaser, its agents, employees, architects, contractors, and engineers, shall have
until 6:00 p.m. Eastern Time on , 2015 to review the Books and Records
and to enter upon the Property (collectively the "Inspection Period") at any reasonable time
upon advance notice to Seller for the purpose of inspecting the Property, and to conduct
nonintrusive surveys, engineering studies, borings, percolation tests, soils tests, investigations,
environmental studies, or such other procedures as Purchaser, in its sole discretion, may elect.
All such inspections, surveys, tests and the like shall be conducted by Purchaser with due
consideration to the operations of Seller. Within a reasonable time after such entries, Purchaser
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shall, to the extent practicable, restore the Property to its prior condition. Purchaser agrees to
indemnify and save Seller harmless from all claims arising by reason of such entries. Purchaser
shall assume all risks in entering upon the Property for the performance of such activities and
shall indemnify, defend and hold harmless Seller, its officers, agents, and employees from and
against all loss or expense (including reasonable attorney's fees) by reason of any liability due to
bodily injury or death to persons or damage to property sustained by any party arising out of or
caused by Purchaser's exercise of any of Purchaser's rights under this Section.
5.3 Purchaser agrees that, in making any non -intrusive physical or environmental
inspections of the Property, Purchaser and all of Purchaser's Agents entering onto the Property
shall carry workers compensation insurance and not less than One Million Dollars
($1,000,000.00) comprehensive general liability insurance insuring all activity and conduct of
Purchaser and Purchaser's Agents while exercising such right of access and naming Seller, and
its direct or indirect members, partners, shareholders or affiliates (collectively, "Seller's
Affiliates") as additional insureds. Purchaser represents and warrants that, at all times prior to
Closing, it shall carry workers compensation insurance, and not less than One Million Dollars
($1,000,000.00) commercial general liability insurance with contractual liability endorsement
which insures Purchaser's indemnity obligations hereunder, and will, prior to entry onto the
Property, provide Seller with written evidence of all insurance required from Purchaser
hereunder written by a reputable insurance company. Purchaser agrees (which agreement shall
survive Closing or termination of this Agreement) to provide Seller with a copy of any third
party reports that Purchaser and/or Purchaser's Agents obtain in connection with its inspection of
the Property.
5.4 If, as a result of any such Books and Records review, inspections, surveys or tests,
or for any reason whatsoever, Purchaser shall not be satisfied with the condition of the Property
or objects to the Books and Records including any of Seller's service contracts, then Purchaser
shall have the right, for any reason or no reason, to terminate this Agreement or provide an
acceptance of the Property upon written notice via electronic mail to pbockweg@miamigov.com
with a copy to bmin@miamigov.com on or before 6:00 p.m. Eastern Time on the day the
Inspection Period ends. Failure to provide such election notice as provided herein shall be
deemed to be an election of Purchaser to terminate this Agreement. In the event that this
Agreement is so terminated by Purchaser, then Escrow Agent shall promptly refund to Purchaser
the full amount of the Deposit (plus any earnings or interest thereon). Following such
termination, if any, Purchaser shall return all documents Seller provided together with copies of
all documents Purchaser obtained pursuant to this provision to Seller and in which event this
Agreement shall become null and void and of no further force or effect except for those
obligations which specifically survive hereunder.
5.5 Purchaser agrees that Purchaser will not, without the prior written consent of
Seller, at any time, in any fashion, form or manner, either intentionally or negligently, directly,
divulge, disclose, or communicate any of the Books and Records, results of Purchaser's
inspections contemplated herein or information contained therein to any third person,
partnership, joint venture, company, corporation, or other organization, other than to agents of
Purchaser in connection with the review thereof or in a judicial proceeding, or use such
information for Purchaser's personal benefit other than in connection with the currently
contemplated transaction. The parties shall be permitted to communicate with suppliers,
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employees, investors, consultants, title company, and their professional agents (lawyers and
accountants) and such communications shall be exempt from the above. The parties further
agree that the terms of this Agreement and identity of the principals of Purchaser and Seller shall
remain confidential and shall not be disclosed by any of them without the consent of the other
parties, except as may be required by law.
6. Title.
6.1 Title to be Conveyed. The title to the Property to be conveyed hereunder
to Purchaser by special warranty deed will be good and marketable, of record and in fact,
insurable at regular commercial rates by Escrow Agent, and free and clear of any and all liens,
encumbrances, and Unacceptable Title Exceptions (hereinafter defined). Without limiting the
foregoing, the Seller will, prior to Closing, release the Unity of Title that currently encumbers the
Property, only, and only upon the simultaneous recording of a Covenant in Lieu of Unity of
Title. Purchaser recognizes that the adjoining property unified pursuant to the recorded Unity of
Title (1401 North Miami Avenue, Miami, Florida, Tax Folio No.: 01-3136-005-1160) is not
subject to this transaction. Purchasers further recognizes and agrees that any Development
Rights that can be transferred pursuant to Chapter 23 of the City Code regarding 1401 North
Miami Avenue, Miami, Florida shall solely be the right and within the discretion of Seller.
6.2 Title Commitment. Promptly following the Effective Date, Purchaser
shall request that Escrow Agent cause the title to the Property to be examined, and, to arrange for
the issuance to Purchaser of a written commitment for the issuance to Purchaser of a standard
form of owner's title insurance policy for the Property. If such title examination or commitment
shall disclose any liens, encumbrances, restrictions, easements or other title defects, matters or
exceptions which render title unmarketable or otherwise prohibit its continued operation as a
multifamily project (the "Unacceptable Title Exceptions"), then Seller shall undertake to
remedy or eliminate any such Unacceptable Title Exceptions, at the sole cost and expense of
Seller, in a manner reasonably satisfactory to Purchaser; provided that Purchaser shall have given
Seller written notice of any such Unacceptable Title Exceptions within fifteen (15) calendar days
following its receipt of the title commitment (the "Title Examination Period") which shall
remain subject to a title continuation for new matters reflected on any title update as of the date
of closing. Notwithstanding the foregoing, Seller shall have the obligation, at its sole cost and
expense, to discharge any and all liens, mortgages, or assessments otherwise affecting the
Property or its ability to convey the Property and such shall not be considered Unacceptable Title
Exceptions hereunder.
If Purchaser shall not deliver the title commitment to Seller of any Unacceptable Title
Exceptions prior to 6:00 p.m. Eastern Time on the last day of the Title Examination Period, then
Purchaser shall be deemed to have waived any objections to the condition of the title to the
Property for purposes of this Agreement. If Seller shall be unable to remedy or eliminate the
Unacceptable Title Exceptions prior to the scheduled Closing, then at Purchaser's sole election,
within fifteen (15) days of receipt of Seller's notice of its inability to remedy the Unacceptable
Title Exceptions, Purchaser shall have the right to i) terminate this Agreement and Escrow Agent
shall promptly refund to Purchaser the full amount of the Deposit, ii) extend the Closing by such
reasonable amount of time reasonably necessary to allow Seller to remedy or eliminate the
Unacceptable Title Exceptions, or iii) the parties shall proceed to Closing pursuant to the terms
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of this Agreement in accordance with and subject to the terms and conditions hereof, without an
abatement in the Purchase Price for the Property. The failure of Seller to respond in writing to
any notice of Purchaser setting forth any Unacceptable Title Exceptions within four (4) business
days of its receipt thereof shall be deemed to be an election by Seller to undertake to remedy or
eliminate such Unacceptable Title Exceptions.
7. Representations. Warranties and Covenants.
7.1 Seller.
In order to induce Purchaser to consummate the transaction contemplated by this
Agreement, Seller represents and warrants that the following are true statements as of the date of
this Agreement, and agrees that upon Closing, each and every one of these representations and
warranties shall be reaffirmed as of the Closing:
(a) Seller holds full title to the Property subject to ratification by the Commission of
the City of Miami.
(b) Seller is a duly organized, validly existing and in good standing under the laws of
the State of Florida is authorized to do business in the State of Florida, has duly authorized the
execution and performance of this Agreement, and such execution and performance will not
violate any material term of its organizational documents
(c) This Agreement constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms. Seller has taken all necessary action to
authorize and approve the execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement. The signer of this Agreement on behalf of
Seller represents that he has authority to bind Seller.
(d) The Seller is not a "foreign person" as defined in the Internal Revenue Code
Section 1445.
(e) Seller is not a party as debtor to any insolvency or bankruptcy proceeding or
assignment for the benefit of creditors under the Bankruptcy Code or any law of any State.
(f) Seller represents that no other party has an option to purchase the Property.
(g) Seller has agreed to transfer any development right or air right affecting the
Property. Additionally, to the best of Seller's knowledge, no prior owner has so transferred
development or air rights and such air and development rights are fully intact.
(h) To the best of Seller's knowledge, no action or proceeding instituted or threatened
in writing, by or against Seller or against the Property by any party (including any tenant of the
Property) is presently pending in any court, administrative agency or other tribunal, except for
any tenant evictions in the ordinary course of business and as reflected on the rent roll.
(i) Seller has received no written notice with respect to any requirement by any
insurance company which has issued an insurance policy with respect to the Property, or by any
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board of fire underwriters or other body exercising similar functions, as to which there has been
no compliance.
(j) To the best of Seller's knowledge, there is no written notice, judgment, write,
decree, injunction or order entered in any action, suit or proceeding by any Federal, State,
County, municipal or other governmental or quasi -governmental agency, depaiiiiient, board,
commission, bureau or other entity or instrumentality of the violation of any applicable Federal,
State, County, municipal or other governmental or quasi -governmental statute, law, ordinance,
judgment, writ, decree, injunction, rule, regulation, restriction or order affecting the Property or
the construction, development, use, operation, maintenance or management thereof, which
violation has not been corrected. The Seller has received no notice that any consent,
authorization, variance, license, permit or approval relating to or required for the operation or
occupancy of the Property, has not been validly and unconditionally obtained, or is not in full
force and effect. True, accurate and complete copies of all such approvals in Seller's possession
will be delivered to the Purchaser during the Inspection Period.
(k) Except as identified in the environmental reports provided to Purchaser as part of
the Books and Records, to the best of Seller's knowledge no hazardous substances including but
not limited to lead paint and asbestos and no environmental issues are located on the Property
and no underground storage tanks are located on the Property or were ever located on the
Property. To the best of Seller's knowledge the Property complies with all applicable
environmental laws.
(1) The Seller knows of no pending eminent domain or condemnation proceeding
affecting or which may affect all or any portion of the Property.
(m) To the best of Seller's knowledge the Property is in compliance with any
applicable restrictive or protective covenant or condition of record.
7.2 By Purchaser.
(a) Purchaser represents and warrants to Seller as follows as of the Effective Date and
the Closing Date:
(b) Purchaser is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Florida, has duly authorized the execution and
performance of this Agreement, and such execution and performance will not violate any
material term of its organizational documents.
(c) Purchaser is acting as principal in this transaction with authority to close the
transaction.
(d) No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of
creditors, or petition seeking reorganization or arrangement or other action under federal or state
bankruptcy laws is pending against or contemplated by Purchaser.
(e) Purchaser will not use the assets of an employee benefit plan as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA") and covered under
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Title I, Part 4 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended, in
the performance or discharge of its obligations hereunder, including the acquisition of the
Property. Purchaser shall not assign its interest hereunder to any person or entity which does not
expressly make this covenant and warranty for the benefit of Seller.
(f) Neither Purchaser, nor any of its direct or indirect beneficial owners, have
engaged in any dealings or transactions, directly or indirectly, i) in contravention of any U.S.,
international or other applicable money laundering regulations or conventions, including, without
limitation, the United States Bank Secrecy Act, the United States Money Laundering Control Act
of 1986, the United States International Money Laundering Abatement and Anti -Terrorist
Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. § 1 et seq., as amended), or any
foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating thereto, or ii) in
contravention of Executive Order No. 13,244, 66, Fed. Reg. 49,079 (2001) issued by the
President of the United States (Executive Order Blocking Property and Prohibiting Transactions
with Persons Who Commit, Threaten to Commit, or Support Terrorism), as may be amended or
supplemented from time to time ("Anti -Terrorism Order") or on behalf of those persons or
entities that are included on any terrorists of terrorist organizations lists maintained by the United
Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and
Development, Financial Action Task Force, U.S. Treasury Depaituient's Office of Foreign Asset
Control, U.S. Securities & Exchange Commission, U.S. Federal Bureau of Investigation, U.S.
Central Intelligence Agency, U.S. Internal Revenue Service, all as may be amended from time to
time. Neither Purchaser nor any of its direct or indirect beneficial owners is a person described in
Section 1 of the Anti -Terrorism Order or whose name appears on the most current list of
Specifically Designated Blocked Persons prepared by the U.S. Treasury Department's Office of
Foreign Asset Control.
(g) Upon closing, Purchaser agrees to record an Easement against the Property
authorizing Seller to continue using that portion of the structure that currently encroaches into
the Property.
(h) Seller shall have full access and right to use for its sole purpose and desire the
Property unless and until actual construction begins resulting in removal of any or all of the
parking spots on the Property.
(i) Purchaser hereby agrees to make its best reasonable efforts in the design of its
adjacent project to provide an exterior access facing Seller's property.
(j) Purchaser hereby agrees that if it sells or transfers its property to an unrelated
entity prior to the construction of a parking structure including the parking spaces referenced in
this Agreement or if does not provide the parking spaces as described herein prior to the
expiration of the Seller, but at no time before March 31, 2030, Purchaser shall pay Seller Three
Hundred Thousand and No/100 Dollars ($300,000.00) with no further obligation regarding the
parking spaces.
(k) Purchaser hereby agrees that if it sells or transfers its property to an unrelated
entity after the construction of a parking structure including the parking spaces referenced in this
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Agreement, but prior to the transfer to the rights of the ten (10) parking spaces in accordance
with this Agreement, Seller, in its sole discretion, may elect for Purchaser to pay Seller Three
Hundred Thousand and No/100 Dollars ($300,000.00) or accept the transferee's assignment of
the obligation to provide the ten (10) parking spaces.
8. Possession.
Possession of the Property shall be delivered to Purchaser as of the date of Closing,
subject to the rights of tenants, if any, pursuant to unrecorded written leases on the certified rent
roll provided by Seller at Closing.
9. Closing Documentation
At the Closing, Seller shall execute and deliver to Purchaser, or cause to be executed and
delivered to Purchaser, the following which are a condition precedent to Purchaser's obligation
to Close:
(a) a duly executed and acknowledged i) special warranty deed for the Property in
recordable statutory form, conveying the fee simple title to the Property to Purchaser, free and
clear of any and all Unacceptable Title Exceptions in the form reflected on Exhibit B, attached
hereto and incorporated herein by reference, and ii) a declaration of restrictive covenants in lieu
of unity of title encumbering the Property and that certain other property owned by the Seller as
more particularly described in attached Exhibit F;
(b) any affidavits of title reasonably requested by Escrow Agent in the form reflected
on Exhibit C, attached hereto and incorporated herein by reference; and
(c) such other documents or instruments as may be reasonably necessary to
consummate the transactions contemplated by this Agreement, including, without limitation,
certificates, affirmations or acknowledgments required by the Escrow Agent who shall conduct
Closing.
(d) An executed certification as to Seller's non -foreign status ("FIRPTA") in the form
then required by the Code Withholding Section and each party shall execute, acknowledge and
deliver to the other party such instruments, and take such other actions, as such other party may
reasonably request in order to comply with IRS §6045(e), as amended, or any successor
provision or any regulations promulgated pursuant thereto, insofar as the same requires reporting
of information in respect of real estate transactions, in the form reflected on Exhibit E, attached
hereto and incorporated herein by reference.
(e) The consent of those members of Seller whose consent is required authorizing the
sale of the Property to Purchaser.
At the Closing, Purchaser shall execute and deliver to Seller the following, which shall be
a condition precedent to Seller's obligation to Close
(a) an Easement against the Property authorizing Seller to continue using that portion of the
structure that currently encroaches into the Property.
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(b) such other documents or instruments as may be reasonably necessary to
consummate the transactions contemplated by this Agreement, including, without limitation,
certificates, affirmations or acknowledgments required by the Escrow Agent who shall conduct
Closing including the title affidavit form reflected on Exhibit D.
10. Costs and Expenses.
Seller hereby agrees to pay for and to be solely responsible for all costs associated with,
Seller's attorney's fees, documentary stamps, recording fees and special assessments and any and
all other costs it incurs associated with the closing. Purchaser hereby agrees to reimburse Seller
up to Twenty Thousand and NO/100 Dollars ($20,000.00) for any appraisal or survey costs
actually incurred and paid by Seller.
Purchaser hereby agrees to pay for, and to be solely responsible for all costs and taxes
associated with owner's title insurance premium with endorsements, any survey updates or re -
certifications, any and all sales or use taxes, Purchaser's attorney's fees, and the settlement or
closing fee of Escrow Agent.
This Section shall specifically survive Closing or earlier termination of this Agreement
11. Risk of Loss.
The Property shall be held at the risk of Seller until legal title has passed or possession
has been given to Purchaser at the Closing. If, after the Effective Date and prior to the time that
legal title is passed to Purchaser or possession has been given to Purchaser at the Closing, any
material part of the Property shall be destroyed or damaged or other casualty, Seller shall have
the first option to terminate this Agreement and provide a full refund of the Deposit to Purchaser,
in which event this Agreement shall become null and void and of no further force or effect and
neither of the parties shall have any further obligations or liabilities hereunder. If Seller does not
terminate this Agreement as provided in the forgoing sentence, then Purchaser shall have the
option to either i) terminate this Agreement and receive a full refund of the Deposit, in which
event this Agreement shall become null and void and of no further force or effect and neither of
the parties shall have any further obligations or liabilities hereunder, or ii) to proceed to Closing
under this Agreement in accordance with and subject to the terms and conditions hereof, in
which event, at the Closing, the Property to be transferred to Purchaser at the Closing shall
include an assignment by Seller of all insurance proceeds received by Seller by reason of any
such damage or destruction to the Property, together with all rights of Seller to receive insurance
proceeds in respect of such damage or destruction and funds equivalent to the applicable
insurance deductible.
Except as expressly provided in this Agreement, during the period from the date hereof to
the Closing, Seller shall i) conduct its operations according to its ordinary course of business
consistent with the past practice and in compliance with all laws, orders, rules or regulations
applicable to the assets or the conduct of the business; ii) use its best efforts to preserve, maintain
and protect its properties, assets and business; and ii) use its best efforts to preserve intact its
business organization, and to reasonably maintain existing relationships with suppliers,
contractors, distributors, customers and others having business relationships with it.
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12. Condemnation.
The risk of a total or material partial taking of the Property by condemnation or other
exercise of the right of eminent domain occurring prior to the time that legal title is passed to
Purchaser or possession of the Property is given to Purchaser at the Closing shall be borne by
Seller. In the event that any condemnation proceeding is commenced or threatened against all or
a material portion of the Property or any portion thereof prior to time that legal title is passed to
Purchaser or possession of the Property is given to Purchaser at the Closing, Purchaser shall have
the option to either i) terminate this Agreement and receive a full refund of the Deposit,
whereupon this Agreement shall become null and void and of no further force or effect and
neither of the parties shall have any further obligations or liabilities hereunder, or ii) proceed to
Closing under this Agreement in accordance with and subject to the terms and conditions hereof,
in which event, at the Closing, the Property to be transferred to Purchaser hereunder shall include
an assignment by Seller to Purchaser of any condemnation award or other amounts received by
Seller by reason of any taking or condemnation of the Property or any portion thereof pursuant to
any actual or threatened exercise of the power of eminent domain or condemnation or of the right
of Seller to receive any such award or other amounts.
13. Taxes and Prorations.
At the Closing, the taxes on the Property shall be prorated between the parties based on
the most recent tax information available to Seller with full discount for early payment, or, if no
bill has yet been issued by the applicable taxing authority, then based on the taxes paid for the
most recent year that has been assessed and billed with highest applicable discount, with the
Closing Date being attributable to the Seller. No tax re -proration will occur once the final tax
bill is received. Special assessment liens certified as of Closing shall be paid by Seller including
any installment due prior to Closing for special assessments which Seller has previously elected
to remit on a multiple payment schedule. Purchaser shall assume all responsibility for
installments due from and after the date of Closing. All other expenses and charges attributable
to the Property shall be prorated based upon a calendar year and allocated according to each
Party's period of ownership.
14. Notices.
Any notice, request, demand, instruction or other communication to be given to either
party, except where required by the terms of this Agreement to be delivered at the Closing, shall
be in writing and shall be sent by registered or certified mail, return receipt requested, or by
express overnight courier, as follows:
(a) If to Seller:
Omni Redevelopment District Community Redevelopment Agency
1401 North Miami Avenue
2" d Floor
Miami, Florida 33136
ATTN: Executive Director
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Telephone: 305-679-6868
With a copy to:
City of Miami City Attorney's Office
444 SW 2 Avenue
Suite 945
Miami, Florida 33130
ATTN: Barnaby L. Min, Esq.
Telephone: 305-416-1835
(b) If to Purchaser:
14th Street Development LLC
1111 Park Centre Boulevard
Suite 450
Miami Gardens, Florida 33169
ATTN: Terry Wellons
Telephone: 3 05 -625 -0949
If notice is forwarded by certified mail through the facilities of the U.S. Postal Office on the
second business day following the date that the notice in question is deposited in the facilities of
the U.S. Postal Service. If notice is forwarded by express overnight courier, it shall be deemed
given on the day following the date that the notice in question is deposited in the facilities of an
express overnight courier.
15. Default.
15.1 Breach or Default by Seller. Purchaser hereby agrees that if Seller shall
default in the performance of its obligations hereunder, the actual damages that Purchaser would
suffer are difficult to ascertain with any degree of certainty. Therefore, upon any default of
Seller hereunder, Purchaser's sole and exclusively remedy shall be to either i) sue for specific
performance and out of pocket expenses up to $75,000.00 if not reimbursed pursuant to this
paragraph, or ii) terminate this Agreement and receive a prompt refund of the Deposit (and any
interest or earnings thereon) and Purchaser's third party out of pocket costs up to $75,000.00 as
liquidated damages. In no event shall Seller be liable for any consequential, special, or punitive
damages. Purchaser and Seller agree that the damages which Purchaser would suffer upon
Seller's default are difficult if not impossible to determine with any degree of specificity and
such liquidated damages represent a fair and reasonable estimate of the amount of actual
damages that the Purchaser would suffer as a result a default on the part of Seller and such
liquidated damages provision was a material inducement for entering into this Agreement.
15.2 Breach or Default by Purchaser. Seller hereby agrees that if Purchaser
shall default in the performance of its obligations hereunder, the actual damages that Seller
would suffer are difficult to ascertain with any degree of certainty. Therefore, upon any default
of Purchaser hereunder, Seller's sole and exclusively remedy shall be to terminate this
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Agreement and retain the Deposit plus all interest as liquidated damages. Purchaser and Seller
agree that the actual damages that Seller would suffer as a result of Purchaser's breach is difficult
to determine with any degree of specificity, that the Deposit with interest represents a fair and
reasonable estimate of the amount of actual damages that the Seller would suffer as a result a
default on the part of Purchaser in connection with taking the Property off the market during the
term of this Agreement, remarketing the Property and otherwise and that such liquidated
damages provision was a material inducement for entering this Agreement.
16. Binding Effect.
All of the terms, provisions and conditions of this Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
17. Assignment.
The rights and obligations of the parties under this Agreement may not be assigned or
delegated by either party, without the prior written consent of the other party hereto, which
consent shall not be unreasonably withheld or delayed.
18. Headings.
The headings of the Sections, subsections, paragraphs and subparagraphs hereof are
provided herein for and only for convenience of reference, and shall not be considered in
construing their contents.
19. Amendments.
This Agreement and the provisions hereof may be amended, modified or supplemented in
whole or in part only by a written instrument making express reference to this Agreement and
executed by both Purchaser and Seller. The Executive Director shall have the authority to
modify or amend any part of this Agreement, mutually agreed upon with the Purchaser, other
than the Purchase Price without the need to obtain Board approval at a public hearing.
20. Governing Law and Interpretation.
This Agreement shall be interpreted, construed and enforced and shall be governed by the
laws of the State of Florida, without regard to its conflicts of laws principles and venue for any
conflict shall be exclusively in the state court of the county of the Property. With respect to each
and every term and provision in this Agreement, the parties understand and agree that the same
have or has been mutually negotiated, prepared and drafted, and that if at any time the parties
hereto desire or are required to interpret or construe any such term or provision, no consideration
shall be given to the issue of which party hereto actually prepared, drafted or requested any term
or condition of this Agreement. The documents and instruments referred to herein as Exhibits
constitute a substantive part of this Agreement and are incorporated herein by this reference.
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21. Entire Agreement.
This Agreement sets forth all of the promises, agreements, conditions, understandings,
warranties and representations among the parties hereto with respect to the subject matter of this
Agreement, and there are no other promises, agreements, conditions, understandings, warranties
or representations, oral or written, express or implied, between them with respect to such subject
matter. Any and all prior agreements with respect to the matters set forth herein are hereby
superseded and canceled by this Agreement. This Agreement is, and is intended by the parties to
be, an integration of any and all prior agreements or understandings, oral or written, with respect
to the subject matter of this Agreement.
22. Counterparts.
This Agreement may be executed in one or more counterparts and in multiple originals
and when taken together, shall constitute one and the same original document for all purposes.
23. Intentionally Deleted.
24. Time of the Essence.
Time is of the essence with respect to the provisions of this Agreement. If extreme
weather or like condition causes hazard, wind, flood or property insurance to become unavailable
at Closing, Closing shall be extended a reasonable time up to three (3) business days after
restoration of availability of coverage.
25. Intentionally Deleted.
26. Prior to Closing.
26.1 Insurance. Until Closing, Seller or Seller's agents shall keep the Property
insured, in accordance with the current lender's requirements against fire and other hazards
covered by extended coverage endorsement and comprehensive public liability insurance against
claims for bodily injury, death and property damage occurring in, on or about the Property in
accordance with the insurance policies of Seller currently in effect.
26.2 From the date hereof until the Closing Date, Seller shall permit Purchaser
and the principal thereof and Purchaser's designees, access, during normal business hours and
upon reasonable prior notice to Seller, to the Property and to all books and records relating to the
Property.
27. Use of Property. Purchaser will allow Seller to continued access and use of the
Property until such time that Purchaser begins development of the Property and the Purchaser's
adjacent property
28. Intentionally Deleted.
29. Intentionally Deleted.
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30. Survival of Representations and Warranties. Purchaser and Seller agree that
their respective representations and warranties as set forth in the Agreement shall survive
Closing for One (1) year from the Closing Date.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned parties, after reviewing, reading and
understanding the contents of this document, have caused this Agreement to be executed
and delivered in their names and on their behalf as of the date set forth above.
Date
APPROVED AS TO LEGAL
FORM AND CORRECTNESS:
By:
Date
SELLER:
OMNI REDEVELOPMENT DISTRICT
COMMUNITY REDEVELOPMENT AGENCY
By:
PURCHASER:
14th Street Development, LLC a Florida limited
liability company
By:
Print Name:
Title:
15
EXHIBIT A
LEGAL DESCRIPTION
The northerly 20 feet of Lot 10, and Lot 7 of Block 16 of the plat of ROBBINS — GRAHAM AND
CHILLINGSWORTH, as recorded in Plat Book A at Page 49 of the Public Records of Miami -Dade
County, Florida.
Folio No. 01-3136-005-1110
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Prepared by and Return to:
Parcel ID No.:
EXHIBIT B
Form Special Warranty Deed
SPECIAL WARRANTY DEED
THIS INDENTURE, made as of the day of , 201 between
("Grantor"), whose address is
, in favor of , a
("Grantee"), whose address is
WITNESSETH THAT:
Grantor, for and in consideration of the sum of
and No/100 U.S. Dollars
($ .00), lawful money of the United States of America, to it in hand paid
by Grantee, at or before the unsealing and delivery of these presents, the receipt of which is
hereby acknowledged, grants unto Grantee and its successors and assigns forever, the parcel of
land, situate, lying and being in the County of , State of Florida, as more
particularly described on the attached Exhibit A (the "Property"), with the buildings and
improvements thereon erected:
Subject however, to:
(a) Real property taxes and assessments not yet due and payable;
(b) Zoning and other regulatory laws and ordinances affecting the Property;
(c) Matters which would be disclosed by an accurate survey; and
(d) Easements, rights of way, limitations, conditions, covenants, restrictions, and
other matters of record.
TOGETHER with all and singular the tenements, hereditaments and appurtenances
thereunto belonging or in any way appertaining.
TO HAVE AND TO HOLD the same in fee simple forever.
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AND Grantor hereby specially warrants the title to the Property and will defend the same
against the lawful claims of any persons claiming by, through or under Grantor, but against none
other.
IN WITNESS WHEREOF, Grantor has executed and delivered this Indenture as of the
day and year first above written.
Witnesses:
Signature:
Print Name:
Signature: By:
Print Name:
STATE OF FLORIDA
COUNTY OF
) SS.
Name:
Title:
The foregoing instrument was acknowledged before me this day of
201 by as of , a
, on behalf of the
company. He is personally known to me or has produced a driver's license as identification.
Notary Public
Print Name:
Serial No. (if any):
18
FILE NO:
EXHIBIT C
Form Affidavit (Seller & Purchaser)
AFFIDAVIT AS TO DEBTS, LIENS AND POSSESSION
STATE OF
COUNTY OF
BEFORE ME, the undersigned authority, personally came and appeared
of , a
duly sworn, depose(s) and say(s):
, as
who, being first
1. That Affiant(s) is/are the owner(s) (hereafter collectively referred to as the "Owner") of the
following described real property, (hereafter referred to as the "Property").
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF.
2. That neither the Owner's title to nor possession of the property have ever been disputed or
questioned, nor is the Owner aware of any facts by reason of which the title to, or possession of,
the property or any part of it or any personal property located on it might be disputed or
questioned, or by reason of which any claim to the property or any portion of it or any personal
property located on it might be adversely asserted.
3. That no person or entity other than the Owner claims or is presently entitled to the right to
possession, or is in possession, of the property, and there are no tenancies, leases or other
occupancies that affect the property.
4. That there are no disputes concerning the location of the boundary lines of the property.
5. That there are no outstanding or unpaid taxes or assessments (pending or certified) EXCEPT
taxes for the year 2015 or any unpaid or unsatisfied Mortgages, Claims of Liens or other matters,
EXCEPT as set forth in Exhibit "B", that constitute a lien or encumbrance against the property or
any of the improvements on it or any part of it or against any personal property located on it.
6. That there are no Security Agreements, Financing Statements, Title Retention Contracts or
Personal Property Leases affecting any materials, fixtures, appliances, furnishings or equipment
placed on or installed in or on the property or the improvements located on it, EXCEPT as set
forth in Exhibit "B".
7. That there are no actions, proceedings, judgments, bankruptcies, liens or executions recorded
in the public records of the County wherein the property is located, or in any other County in
Florida, or pending against the Owner in any Court in Florida, or any other Courts.
8. That Affiant(s) know of no violations of Municipal Ordinances affecting the property.
9. That no improvements or repairs have been made to the property during the 90-day period
immediately preceding the date of this Affidavit, and there are no unpaid bills of any nature,
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either for labor or materials used in making improvements or repairs on the property, or for the
services of architects, surveyors or engineers incurred in connection with the property.
10. That subsequent to , the Owner has not and hereby agrees and
represents that Owner will not execute any instrument or do any act whatsoever that in any way
would or may affect the title of the property, including, but not limited to, the mortgaging or
conveying of the property, or any interest in it, or causing any liens to be recorded against the
property or the Owner.
12. That this Affidavit is given (X) to induce , a to
purchase the real property and improvements (if applicable), and to induce
to issue an Owner and/or Mortgagee Title Insurance
Policy.
12. That this Affidavit is given by the Affiant(s) with full knowledge of applicable Florida laws
regarding sworn Affidavits and the penalties and liabilities resulting from false statements and
misrepresentations therein.
a
By:
Name:
Title:
Sworn to before me and subscribed in my presence this day of , 201_ by
as of , a
, on behalf of the entity. He/she is personally known to me or has
produced driver license(s) as identification.
My Commission expires:
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Printed Name:
Notary Public
Serial Number
EXHIBIT D
Form FIRPTA
FORM OF CERTIFICATE AS TO FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property
interest must withhold tax if the
,a
required upon the disposition
transferor is a foreign person. To inform
("Transferee"), that withholding of tax is not
of a U.S. real property interest by
("Transferor"), the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is a and is not a foreign
foreign partnership, foreign trust or foreign estate (as those terms are defined in
Revenue Code and Income Tax Regulations).
2. Transferor's U.S. employer identification number is
3. Transferor's address is
corporation,
the Internal
4. Transferor is not a disregarded entity for federal tax purposes.
Transferor understands that this certification may be disclosed to the Internal Revenue Service
by Transferee and that any false statement made herein is punishable by fine, imprisonment, or
both. Transferor understands that Transferee is relying on this certification in determining
whether withholding is required upon transfer of real property by Transferor.
Under penalty of perjury, Transferor and the individual executing on its behalf declare that the
statements made in this Certificate as to Foreign Status are true, correct and complete.
EXECUTED on , 201 .
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SELLER:
a
By:
Name:
Title:
EXHIBIT E
LEGAL DESCRIPTION OF FIRE STATION PROPERTY
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