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HomeMy WebLinkAboutExhibit 2City of Miami Invitation for Bid DRAFT I. Introduction The City of Miami (the "City") is pleased to be offering this Invitation for Bid ("IFB") to the global real estate investment community. This IFB is an extraordinary opportunity to purchase one of the City's premiere assets located in the heart of Downtown Miami. The % real property assets consist of: I. The 2"d Avenue parking garage which is a ten story, 1390 parking space structure located on Southeast 2"d Street between Southeast ls` and Southeast 2"d Avenues (the "Parking Garage"); 2. The retail air rights lease above the garage, currently master leased to Blue Capital US East Coast Properties LP, the owner of the 685,000 square foot (office), 38,000 square foot (retail), 46-story Bank of America Tower (the "Retail Lease"); and 3. The office air rights lease, currently master Leased to Blue Capital US East Coast Properties LP, under which Blue Capital US East Coast Properties, LP owns and operates the Bank of America office tower (the "Office Lease"). The City is offering to sell to the highest qualified bidder its fee simple interest in the Parking Garage and its interest as landlord under the Retail Lease and the Office Lease. . All bids for the Parking Garage and the Retail and Office leases (together known as the "Assets") must be received by the City by 12 noon on (the "Final Submission Date"). The City of Miami has retained the services of the Staubach Company to advise the City in regards to this investment opportunity. The City's real estate management staff will be the primary point of contact for the disposition, but bidders can expect to have contact with the Staubach team as well during the process. II. Description of the Assets 2"d Avenue Parking Garage The Parking Garage is wholly owned by the City, and is operated by the Miami Parking Authority. The garage is highly utilized due to its central location and proximity to a broad array of cultural, retail, office and residential users. The Parking Garage primarily serves the Bank of America Tower, the adjoining Hyatt Regency Miami Hotel, and the Miami Convention Center (also known as the James L. Knight Convention Center), and the University of Miami Conference Center. The Bank of America Tower is a 46-story building with approximately 685,000 square feet of office space and 38,000 square feet of retail space. The tower is currently 96%+ leased. 81227 6-26-06 v2 cln 1 STAUBACH i World of Re.l Estate linutulyd�. City of Miami Invitation for Bid DRAFT Currently, there are approximately 1,000 monthly contracts in place, with more than seventy-five potential monthly customers on a waiting list for monthly parking contracts. Currently, there is an agreement in place with the Hyatt that guarantees access for up to 24.9% (or 337 of the spaces in the garage) on an "as needed" basis. The University of Miami, which leases space inside of the convention center, has rights for an additional 300 spaces when needed for conference participants. The lease with the University of Miami expires in 2072. Unless renegotiated, upon conveyance of the Parking Garage these contracts will need to be kept in place for the duration of the Office and Retail Leases (which terms, with renewals, expire in 2070) and the City's ground lease with the Hyatt (which term, with renewals expires in 2070). All of these leases and parking agreements are available for review by prospective bidders. The successful bidder will also be required to enter into an agreement with the City to provide parking for the Convention Center at rates comparable to that which are charged by the Miami Parking Authority for special events in the downtown area. This agreement with the City will provide for a term that shall expire upon the earlier of 1) 2070; or 2) the Knight Center property is redeveloped with parking provided on -site. The Parking Garage generated $2,216,527 in revenues in FY 2006, which represents approximately $1,639 in revenue per space for 1,352 spaces. Approximately 79% of the FY 2006 income was generated from 'monthly parkers, and approximately 21% of the revenue was generated from daily and special event parking. The gross revenue of the garage is predicted to rise by approximately 13% in FY 2007 to nearly $2.5M due to the increased occupancy of the office tower and substantial new development in the area. The new development has resulted in the loss of nearby parking that supports a mix of uses in the community. Total operating expenses in FY 2006. were approximately $914,834, which represents approximately $677/space. Net income for the last fiscal year was approximately $1,301,693. Both the actual income and expense statement for FY 2006 and the projected income and expense statement for FY 2007 are available to prospective bidders. Internal studies suggest that the Parking Garage is currently operated at less than capacity. In addition, the parking rates at the Parking Garage are below the average for other public parking facilities in the general area. These two factors will allow for an excellent opportunity to enhance future income from the Parking Garage. Retail Air Rights Lease Purchasers will receive participation in the income from 19,000 square feet of retail space located on the first floor of the Bank of America Tower. The space is comprised of two public arcades, along the north and south sides of the first tower floor. The initial term of the Retail Lease expires in July 2015. There are two additional renewal terms for this lease, of 25 years and 30 years respectively, potentially extending the overall term to 2070. At the expiration of this lease all rights to the physical retail assets revert to the City. The leasehold is structured as a "master lease", with the lessee (Blue Capital US 81227 6.26-06 v2 On 2 STAUBACH .i Wurhd r f Real Estate Knowledge r City of Miami Invitation for Bid DRAFT East Coast Properties, LP, also the owner of the office space) paying a set amount each year to the City. The base lease amount in 1985 was $ 1 7.50 per square foot, with a yearly increase of 70% of the Consumer Price Index (CPI). The current annual rental payment for the retail air rights lease is $524,703.03, or $27.62 per square foot. Renewal terms can be exercised within customary timing periods with the current applicable rental rates rolling into the extension terms with the same CPI escalator. Copies of the retail air rights lease are available to any prospective bidders. Office Air Rights Lease The Bank of America Tower office air rights lease is a Leasehold interest in cash streams paid to the City from the owner of the tower building, Blue Capital US East Coast Properties, LP. The tower is a true landmark of the City skyline, and ranks in the top ten tallest office skyscrapers in Miami and in the State of Florida. The tower is known for its elaborate nighttime illumination and dramatic tiering design by the noted architectural firm Pei, Cobb, Freed and Partners. The tower is additionally noted for its beautiful 1 1th floor sky lobby, 10,000 square foot outdoor terrace, and sky lobby level connector to the downtown people mover, public transportation that links many of downtown Miami's major office buildings, hotels and retail centers. Major tenants in the building include McKinsey and Company, UBS .Paine Webber, and the Bank of America. The building is 96+% leased. The initial term of this lease expires in July 2015. The two extension terms of the office air rights lease match those of the Retail Lease, 25 and 35 years respectively, with an ultimate expiration date of 2070. As with the Retail Lease, rent during the extension term is simply the then current rent escalated at 70% of CPI. At the conclusion of the Office Lease, ownership of all vertical improvements reverts to the City. There are two components to the lease payment currently in effect for this air rights lease. The first component is $150,000 per year as base rent. This component has been escalating at 70% of CPI since 1985. A second rent component was based upon occupancy of the building with second rent component in the amount of $150,000 taking effect no later than 1989. This component has also grown at 70% of CPI since 1989. A third component of rent is delineated in the lease and is related to "non trade related" tenancies. This component has not been achieved since the building was opened and is not anticipated to be realized in the foreseeable future. The two rent components currently in place produce an annual payment to the City of $475,960.63. The Assets were originally funded by a 1987 City of Miami Revenue Bond. The bond is under the oversight of a Trustee, who will have to approve of any disposition of the Assets, The City does not anticipate this being an issue for the successful bidder, as the City believes that bids for these assets should exceed the amount of the outstanding bonds. 81227 6-26-06 v2 cln 3 STAUBACH A World of kiwi alai %nuwlsdir City of Miami Invitation for Bid DRAFT III. Market Overview THE BELOW INFORMATION IS BEING PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE CITY ASSUMES NO RESPONSIBILITY AS TO THE ACCURACY OR USEFULNESS OF THIS INFORMATION, NOR DOES IT , WARRANT THE STATEMENTS OR OTHER INFORMATION CONTAINED THEREIN. Miami is a city rich in cultural diversity, economic vitality and endless entertainment opportunities. The metropolitan Miami area offers a wide variety of business, cultural, living and recreational options. People from all over the world visit, live, work and/or invest in Miami. They are attracted to the city's natural beauty exemplified by its ., beaches, the city's vibrant nightlife and entertainment venues. Miami International Airport and Port of Miami are among the U.S. busiest points of entry. Downtown Miami is the home to the highest concentration of international banks in the country. Miami which is strategically located among the Americas is oftentimes referred to as The Gateway of the Americas. . Similar to many cities across the globe, Downtown Miami is experiencing an urban rebirth that is being fueled by people who want to live in the center of the city and not commute long distances to work, shop or play. There is more than $13 billion of real estate investment underway in the greater Miami area. With more than 375,000 people living in Miami City and more than 2.3 million people in the Miami metropolitan area, Miami's population continues to grow. It is estimated that downtown Miami's current population of approximately 20,000 will reach 70,000 by 2030. This growth is a result of migration from other parts of the country and immigration from throughout the world. Furthermore, Miami's population is augmented throughout the year with more than 10 million tourists. Miami's economy is well diversified and supported among banking, tourism, international trade and many other domestic and foreign businesses that have a physical or market presence in Miami. Miami's economy thrives on the following sectors: government, information technology, tourism, professional and business services and education and health services. These sectors are projected to be the region's highest wage and fastest growing sectors through 2012. Miami's economy continues to expand as business continues to become more global. This economy has fueled the increased real estate investment in Miami. 81227 6-26-06 v2 cln 4 STALBACH d SVurld of Real &rerttr F0100040 City of Miami Invitation for Bid DRAFT Office Market The overall market in Downtown Miami consists of approximately 8.2 million. square feet of office space. There are 72 buildings in the office market in Downtown Miami. In the first quarter of 2007, the overall vacancy rate in Downtown Miami was 8.5% - with Class A buildings experiencing a lower vacancy rate of 6.4%. Downtown Miami's office market is strong as vacancy rates have consistently remained below 10% since 2005. Financial firms, law firms and other companies Iooking to compete in Latin American markets have increased leasing activity in Miami. Foreign companies continue to establish a presence in South Florida totifacilitate entry into the U.S. markets. In a global economy, Miami is recognized as one of the world's top urban centers. In the last five years, developers have completed, begun to construct or had approved for construction more than 3.5 million square feet of office space. The office employment growth has been more than 13% over the past five years. This increase in employment translates to an increased number of workers commuting into Downtown Miami. Those who choose to use private transportation will place a higher demand on easy access to parking facilities that are close to their offices and to roadways that allow them to access major road arteries and the opportunity'to avoid general -city traffic. The Parking Garage provides this easy access with its central location in the city along with the benefit of the garage's proximity and accessibility to Interstate 95. This combination of factors will ensure that there is significant and increasing demand for parking spaces at the Parking Garage. Residential Market Since May 2006, there were more than 20,000 condominiums under construction in and around Downtown Miami and more than 16,000 condominiums approved for construction. This high level of residential construction is not limited only in the central business district but is also occurring in adjacent areas such as Park West, the Media and Entertainment District, Brickell and Midtown Miami. The residential market in Miami has been a driver for mixed use development — with an emphasis on retail development. The following is a table of three mixed -use projects with Large residential components in Downtown Miami that have been recently completed or are currently under construction. Metropolitan Miami* One Miami Epic 1,143 residential units 893 residential units 966 residential units 240,500 SF retail 6,503 SF retail 10,000 SF retail 700,000 SF office 24,362 SF office 376 hotel rooms NA 363 hotel rooms Under construction Recently completed Under construction ma only shows Met l — one of the res dential rowers of the mixed -use developntent 8 t227 6-26.06 v2 cln 5 STAUBACH , World of Real Eata2U FIOWi,dg4 City of Miami Invitation for Bid DRAFT These three projects are within walking distance' of the Bank of America Tower and the Parking Garage. There will be an increased demand for parking in this area as the condominiums, retail and office space are delivered and as the availability of parking declines due to current parking space being converted to construction parking lots or being slated for future development. Retail Market There is more than two million square feet of retail space in Downtown Miami. In the 1st quarter of 2007 the occupancy rate for retail space was 95%. Currently there i§ 241,505 SF of retail space under construction in Downtown Miami; however, there is more than 1,000,000 SF of retail development uncler construction in districts and areas surrounding Downtown Miami. Many of the new residential projects have some element of retail use. The variety of retail continues to attract shoppers into Downtown Miami. The retail market in Downtown Miami will also benefit as the area gains residents who are more affluent and who possess more disposable income to shop in local stores. The influx of new residents to Downtown Miami will provide a critical mass for the retail market. Entertainment and Recreational Market Miami offers a wide variety of entertainment and recreational activities in and around the City of Miami. American Airlines Arena is the home of the Miami Heat and has seating for approximately 20,000 and approximately 1,100 on -site parking spaces. The majority of the visitors to the American Airlines Arena park off -site and/or take public transportation to attend events, Bayfront Park hosts a substantial number of events and concerts and can accommodate 25,000 people in a gated event. The Park fronts Biscayne Boulevard and has easy access to Interstate 95 just three blocks away. Bayfront Park Amphitheater is located within the park and can accommodate 10,000 people for events. Last Fall, Miami opened the Carnival Center for the Performing Arts which is the home for the Florida Grand Opera, New World Symphony, Miami City Ballet and venue for local and international performances. The two main venues, the Ziff Ballet Opera House and the Knight Concert Hall seats approximately 2,400 and 2,000 people respectively. There is no on -site parking for patrons at the Performing Arts Center. Patrons of the Performing Arts Center park off -site at various garages several blocks from the center. The Knight Center Convention Facility seats 4,400 people and is a well known local venue for many music, theatre and civic functions. The 2nd Avenue parking garage is ideally located to accommodate evening events from both the Knight Center and other recreational and entertainment venues in Downtown Miami. 81227 6-26-06 v2 cln STAUBACH A World of Rear 8aeaur knowledge City of Miami Invitation for Bid DRAFT Hotel Market The Hyatt Regency Hotel is located in Downtown Miami and benefits from an excellent location convenient to both business and leisure activities. The Hyatt is located on the Miami River and adjacent to the Knight Center Convention Facility. The Hyatt is located across the street from the Bank of America Tower and within walking distance to , Miami's Financial District. Condo -hotel development has been the current trend in Miami where units in a condo -hotel are sold to private owners who treat them like apartments but are able to rent them when not in use. Several hotels proximate to the Hyatt have also undergone renovations to upgrade and/or to attract a more discerning and higher paying clientele. The Hyatt is additionally considering major renovations to its Downtown Miami location, which should only increase demand for the parking accommodations at the 2nd Avenue garage. There is a lot of excitement and activity in Miami — and the world is taking notice. People locally, nationally and internationally are investing, visiting and choosing to live in Miami. The 2nd Avenue parking garage is ideally situated to take advantage of what is certain to be growing demand for parking in the Downtown Miami marketplace. 81227 6-26-06 v2 cln 7 STAUBACH A World of Real Eerate Knowledge City of Miami Invitation for Bid DRAFT IV. City Disposition Process — "Step Auction" The City intends to conduct this disposition in accordance with standard regulations utilized by the City to guide the process of asset sales (see Section V of the IFB). In addition to these standard processes, the City will also utilize a "Step Auction" process with this disposition. This process will strive to achieve the two goals of this IFB- 1) maximizing proceeds to the City while 2) ensuring fair and equal treatment of all parties during the auction process. The process will work as follows: 1. Electronic data sheets describing the opportunity were emailed on or about ("insert date") to a global group of potential investors and buyers of the Assets. The data sheet includes information on a non -mandatory pre -submittal conference hosted by the City and information regarding accessing additional background data for the Assets. The dispdsition opportunity is also posted on the City's website at "website". All parties expressing further interest will receive a "hard copy" version of this detailed marketing document (also known as the IFB). The opportunity will be advertised through these means to the public and the investment community for 90 days. 2. If the interested party has requested a hard copy of the IFB, that party will be declared a "listed participant" for the disposition process. All listed participants will receive email answers to any queries posted, by other listed participants, as well as any addenda to the IFB. 3. This IFB includes bid submittal instructions for potential purchasers of the Assets. Bids must be received by the City on or before 12 noon of the Final Submission Date, as defined in the IFB. 4. The City has established that the minimum bid for the Assets shall be S49,000,000. S. The City will open and review all submitted bids, and qualified bids -for -purchase will be ranked according to: a) offered purchase price qualified by b) minimum non -substantive (or no) contingencies, and c) 100% ability to close on the assets within the designated time period mandated by the City. Bids that are acceptable to the City will be known as "qualified bids". 6. The highest ranked qualified bid will be posted on the City's website (specify website location) within 2 weeks of the Final Submittal Date. All listed participants will be notified via email that this bid has been posted. Following posting of this highest qualified bid, any listed participant will have 10 business days to submit an additional bid ("Additional Bid Round") to the City that must be a minimum of 1 0% higher than the posted highest qualified bid. In the event no 81227 6-26-06 v2 cln 8 is STAUBACH h Warld d Aral £aratr Knawlydgr City of Miami Invitation for Bid DRAFT additional bids are submitted to the City within this time period, the City will notify the listed participants that the bid process is closed and that the City is entering into negotiations with the highest qualified bidder. In the event that additional qualified bids are received, the City will repeat the Additional Bid Round, with the subsequent additional bid being posted on the City's website and listed participants having the opportunity to again submit an additional bid at least 10% over the then posted highest qualified bid. The City will not identify the name of the highest qualified bidder during this process. This process will continue until there are no additional qualified bids submitted in any subsequent Additional Bid Round. 7. In the event of a "tie" between highest qualified bids following the first round of additional bidding (or at the end of any subsequent Additional Bid Round), the City will request that the tied bidders submit "Best and Final Offers" within 5 business days of notification, With a minimum $1M in incremental bid required. This process will be repeated until there is a clear highest qualified bid, at the discretion and sole judgment of the City. 8. At the conclusion of the process, the City will post the selected bidder's name and purchase price on the City's website. The selected bidder will be expected to make a deposit equal to 10% of the purchase price within 10 business days of being notified in writing by the City of their selection. The deposit will only be refundable in the case of environmental, title, or survey issues associated with the acquisition of the Assets. The City's Public Facilities, Purchasing and Legal departments will closely monitor the auction process to ensure fair and equal treatment and eliminate controversies that could lead to protests. Interested respondents to the IFB or participants in the auction process must read and adhere to the City's Regulatory provisions, as detailed in the following section. 81227 6-26-06 v2 cIn 9 STAUBACH A SYorld of Rral Esau Knowledge • City of Miami Invitation for Bid DRAFT V. City of Miami Regulatory Provisions How to Obtain an IFB & Register Only those who register as a "listed participant" can participate. For registration as an official respondent and to receive a complete IFB package submit a non-refundable fee of t $150 ("IFB Package Fee") in the form of a cashier's check, money order, or official bank check made payable to the City of Miami plus contact information by mail to the address listed below. Optional Pre -Submittal Conference & Site Visit Details to be provided by email Bid Due (Final Submission Date) Date and Location (EST) Miami City Hall, City Clerk's Office First Floor Counter 3500.Pan American, Drive Miami, FL 33133 To Register and For Further Information Contact Ms. Lori BilIberry Department of Public Facilities City of Miami Riverside Center, 3rd Floor 444 SW 2nd Avenue Miami, FL 33130 loribe,miamigov.com 305.416.1452 Fax 305.400.5169 2007, Directions: From the North: I-95 South until it turns into US1. US1 south to SW 27th Ave., turn left, proceed South to South Bayshore Dr. (3rd traffic light), turn left, 1 block turn right on Pan American Drive. City Hall is at the end of Pan American Drive and parking is on the right. From the South: US1 North to SW 27th Avenue, turn right, proceed South to South Bayshore Dr. (3rd traffic light), turn left, 1 block tum right on Pan American Drive. City Hall is at the end of Pan American Drive and parking is on the right. ]o 'STAUBACH City of Miami Invitation for Bid DRAFT 1.1 Applicable City Codes The City has issued this IFB for the purpose of selling the Assets in accordance with the requirements of Section 29-B of the Charter of the City of Miami and in compliance with the procurement methods set forth in Chapter 18, Article V, Sections 18-176 through 18-182 of the Code of the City. Prospective Bidders are advised that any purchase and sale agreement, which is negotiated pursuant to this IFB, will be in accordance with the provisions of said sections.. 1.2 Request for Additional Information / Clarification All questions or requests for additional information must be received in writing or email no later than 5:00 p.m. XXXXXXXXXX: Bidders may fax, mail or email their requests to the attention of at the City's Public Facilities Department, 444 SW 2nd Avenue, 3rd Floor, Miami, Florida 33130. The facsimile number is (305) or email: Any responses to such questions or requests shall be provided in the form of addenda to this IFB and shall be furnished via email or certified mail to all listed participants within ten (10) days following receipt of the requesting letter. Such responses shall also be kept on file at the office of the City Clerk and posted on the Department of Public Facilities' website at . Respondents who purchase an official copy of the IFB and submit the $150 fee will be considered "listed participants" to participate in the IFB process and receive addenda. Bidders should not rely on any representations, statements or explanations other than those made in this IFB or in any written addendum to this IFB, unless otherwise specifically provided in this IFB or the written addendum. Where there appears to be conflict between the IFB and any addenda issued, the last addendum issued shall prevail. 1.3 Cone of Silence Except for public hearings and scheduled presentations, contact with the City or with its advisor, the Staubach Company, regarding this IFB or any aspect of a proposal by a respondent or any representative of a respondent shall be limited to written communications until such time that a recommendation is made by the City Manager to the City Commission. All questions or requests for additional information must be asked in accordance with Section 1.2 above. Please review City of Miami Ordinance No. 12271 for a complete and thorough description of the Cone of Silence. You may contact the City Clerk at 305-250- 5360, to obtain a copy of same. This IFB is subject to the City's "Cone of Silence" in accordance with Section 18-74 of the City's Ordinance No. 12271, STAUBACH City of Miami Invitation for Bid DRAFT 1.4 Award of Contract A Contract (the "Contract" or Agreement") may be awarded to the selected bidder by the City Commission. The City reserves the right to execute or not execute, as applicable, a Contract with the selected bidder that is determined to be in the City's best interests. Such contract will be furnished by the. City, will contain certain terms as are in the City's best interests, and will be subject to approval as to legal form by the City Attorney. In the event that the City elects not to award or execute a Contract with the selected bidder for reasons that are determined to be in the City's best interests the post award deposit shall be refunded to the selected bidder. 1.5 Changes / Alterations Bidder may change or withdraw, a Bid at any time prior to the Final Submission Date; however, no oral modifications will be allowed. Written modifications shall not be allowed following the bid deadline. 1.6 Public Records Disclosure All business conducted with government agencies within the state of Florida, including the City of Miami, is .subject to the Government in the Sunshine Law, Chapter 286 of the Florida Statutes, commonly referred to as the "Sunshine Law". 1.7 Discrepancies, Errors, and Omissions Any discrepancies, errors, or ambiguities in the IFB or addenda (if any) should be reported in writing to the City's Public Facilities .Department. Should it be necessary, a written addendum will be incorporated to the IFB. The City will not be responsible for any oral instructions, clarifications, or other communications. 1.8 Disqualification The City reserves the right to disqualify Bids before or after the submission date, upon evidence of collusion with intent to defraud or other illegal practices on the part of the Bidder(s). It also reserves the right to waive any immaterial defect or informality in any Bids; to reject any or all Bids in whole or in part, or to reissue an Invitation for Bid. 1.9 Bid Receipt Sealed Bids will be accepted in accordance with the instructions detailed on the cover of this IFB. After that date and time, Bids will not be accepted. The Bidder shall file all documents necessary to support their Bid and shall include them with their Bid. Bidders shall be responsible for the actual delivery of Bids during business hours to the exact address indicated on the cover and in the IFB. Bids 12 STAU BACH City of Miami Invitation for Bid DRAFT that are not received by the CITY CLERK'S OFFICE by the deadline established in the IFB shall not be accepted or considered by the City. 13 S1 UBACH City of Miami Invitation for Bid DRAFT TERMS AND CONDITIONS OF OFFERING l .10 Condition of Assets The Assets are being conveyed "as is" and "where is" by the City. The City makes no representations or warranties of any kind or nature as to its condition and state of repair of the Assets. 1.11 Inspection Bidders shall be permitted to inspect the Assets. In connection with such inspection, there shall be no invasive tests, which can or may cause damage to the Assets unless the Bidder has received the City's prior written approval for such tests. Bidders must furnish the, City a copy of all test results. All such entries upon the Assets shall be at the risk of Bidder, and the City shall have no liability for any injuries sustained by Bidder or any of Bidder's agents or contractors. Upon completion of Bidder's investigations and tests, Bidder agrees to promptly repair or restore any damage to the Assets caused by Bidder, its agents and contractors to the same condition, as it existed before Bidder's entry upon the Assets. Prior to any entry upon the Assets for purposes of inspection .or testing, Bidders and Bidder's agents and contractors, shall execute an Inspection Indemnity Form. City reserves the right to require insurance from the person or persons conducting such inspection. 1.12 Contract Ex ecuti on Contract(s) will be negotiated and executed between the selected bidder and the City in substantially the same form as the contract attached hereto as Exhibit "B". Bidders should review this contract to know what terms and conditions to expect. 1.13 Acceptance/Rejection The City reserves the right to accept or reject any or all Bids or to select the Bidder(s) that, in the opinion of the City, will be in the best interest of and/or the most advantageous to the City. The City also reserves the right to reject the Bid of any Bidder(s) who has previously failed to properly perform under the terms and conditions of a contract, to deliver on time contracts of a similar nature, and who is not in a position to perform the requirements defined in this IFB. The City reserves the right to waive any irregularities and technicalities and may, at its discretion, withdraw and/or re -advertise the IFB. 1.14 City Not Liable for Delays It is further expressly agreed that in no event shall the City be liable for, or responsible to, the Bidder, or any other person for, or on account of, any stoppages or delay in the execution or performance of the agreement herein provided for by injunction or other legal or equitable proceedings or on account of 14 STAUBACH ' .ia,.r R. M.....+'l:nnud.do• City of Miami Invitation for Bid DRAFT any delay for any cause over which the City has no control. The agreement will include a no damage for delay clause. 1.15 Contract Award and City's Rights The City reserves the right, as it determines to be in its best interest, to accept or reject any or all responses to this IFB, waive informalities, technicalities, minor irregularities, and request re -bids on the Assetsspecified in the IFB. 1.16 Costs Incurred By Bidders All expenses involved with the preparation and submission of Bids to the City, or any work performed in connection therewith shall be borne by the Bidder(s). 1.17 Legal Requirements This IFB is subject to all applicable federal, state, county, city and local laws, codes, ordinances, rules and regulations that in any manner affect any and all of the services covered herein. Lack of knowledge by the Bidder shall in no way be cause for relief from responsibility. 1.18 Resolution of Protests Any actual or prospective contractual party who feels aggrieved in connection with the solicitation or award of a contract may protest in writing to the Director of Public Facilities who shall have the authority, subject to the approval of the City Manager and the City Attorney, to settle and resolve a protest with final approval by the City Commission. Bidders arealerted to Section 18-103 of the City's Ordinance No. 12271 describing the protest procedures. Protests failing to meet the requirements for filing shall NOT be accepted. Failure of .a party to timely file shall constitute a forfeiture of such party's right to file a protest. NO EXCEPTIONS. 1.19 Review of Bids for Responsiveness Each Bid will be reviewed to determine if it is responsive to the submission requirements outlined in the IFB. A "responsive" Bid is one which follows the requirements of the IFB, includes all documentation, is . submitted in the format outlined in the IFB, is of timely submission, and has appropriate signatures as required on each document. Failure to comply with these requirements may deem a Bid • non -responsive. A responsible Bidder is one that has the capability in all respects to fully perform the requirements set forth in the proposal, and that has the integrity and reliability, which will assume good faith performance. 1.20 Collusion The Bidder, by submitting a Bid, certifies that its Bid is made without previous understanding, agreement or connection either with any person, firm, or corporation submitting a Bid for the same services, or with the City's Purchasing Department or initiating department. The Bidder certifies that its Bid is fair, without control, collusion, fraud, or other illegal action. The Bidder further certifies that it is in compliance with the conflict of interest and code of ethics 15 STAUBACH City of Miami Invitation for Bid DRAFT laws. The City will investigate all situations where collusion may, have occurred and the City reserves the right to reject any and all Bids where collusion may have occurred. 1.21 Fair Market Value In accordance with Miami City Charter Section 29-B, the purchase price for the Assets must provide the City with at least fair market value. Fair market value and the sufficiency of the proposed purchase price shall be determined by an appraisal of the Assets as performed by two State certified general appraisers hired by the City. 1.22 Public Referendum Approval City of Miami Charter "Section 29-B — City -owned property sale or lease provides that there shall be pt least three (3) written bids received from prospective purchasers. However, if there are Less than three (3) bids received and the guaranteed purchase price 'is at least equal to fair market value, then the proposed transaction must be approved by voters at a referendum prior to the City Commission consummating said'' transaction. In the event fewer than three (3) bids are received, the City reserves the right to either reject all bids or submit the proposed transaction to a vote at the earliest convenient opportunity. If the bid(s) is rejected or the proposed transaction is rejected by referendum vote, the offering shall be terminated. In the event of such a termination, the Respondent has no vested rights, or title or interest in the Assets, or a claim upon the City for any expenses incurred in the IFB process. 16 Th STAUBACH City of Miami Imitation for Bid DRAFT INSTRUCTIONS TO BIDDERS 1.23 Bid Submission Bidders must complete, acknowledge and submit their Bid in accordance with the instructions set forth herein. Additional documentation, which is to be submitted by the Bidder in accordance with the Bid, if any, should be attached to the completed form. 1.24 Signature of Bidder Bidders must sign the Bid Document in the space provided for signature. If the Bidder is a partnership, the word "Authorized General Partner" shall appear after the signature of the partner. Proof of authority of the partner executing the Bid on behalf of the partnership shall be attached to the Bid Form. If the Bidder is a corporation, the required signature will be of the President or Vice President or Chief Executive Officer with the official corporate seal affixed thereto. 1.25 Rejection of Bid The City reserves the right to accept ,any responsive and responsible Bid, waive any irregularities in any Bid, to cancel all invitations to Bid before Bid opening, to reject any or all Bids after Bid opening and/or to re -advertise for Bids. ,1.26 Withdrawal of Bid Any Bid may be withdrawn for any reason prior to the Final Submission Date.. 1.27 Bid Price 1.27.1 No bid will be considered below Forty-nine million dollars and 00/100 ($49,000,000) 1.27.2 Purchase price shall be payable in certified check, cashier's check, official bank check or wire transfer at the time of closing. 1.27.3 Bids should not contain contingencies including the obtaining of financing. The city will provide no direct or indirect financing for the acquisition of the Assets. 1.28 Bidder Qualifications Bidder must be financially solvent, and have sufficient funds to purchase the Assets. Bidder shall have no record of pending lawsuits or criminal activities involving moral turpitude and not have any conflicts of interest with the City. Neither Bidder nor any member, officer, or stockholder of Bidder(s) shall be in 17 j STAUBACH City of Miami Invitation for Bid DRAFT arrears or in default of any debt or contract involving the City, (as a party to a contract, or otherwise); nor have failed to perform faithfully on any previous contract with the City or any of its agencies. 1.29 Acceptance Process The selected bidder which is to be recommended by the City Manager, will receive written notice (the "Notice'') advising him/her of the time and place for establishing the terms of a Purchase and Sale Agreement ("Agreement"). The selected bidder will be expected to make a deposit equal to 10% of the purchase price within 10 business days of receiving the Notice in writing by the City of their selection. The deposit willdonly be refundable in.the case of environmental, title, or survey issues associated with the acquisition of the Assets. 'The City intends to consummate the sale of the Assets substantially in accordance with the terms and conditions set forth in the Purchase and Sale Agreement which is attached hereto and incorporated herein as Exhibit "B". The time frames set forth in the attached Agreement are the time frames preferred by the City. The City will consider requests for a reasonable extension of the time frames in order to provide a purchaser sufficient? time to conduct its due diligence. The City Commission must expressly authorize the City Manager to execute the Purchase and Sale .Agreement for purposes of consummating.the transaction. No Bid shall be deemed binding until such time as the Purchase and Sale Agreement is fully executed by the parties. Any Bid which is incomplete, conditional, or which contains irregularities of any kind, may be cause for rejection of the Bid at the sole discretion of the City. In the event that the Bidder whose Bid is to be recommended by the City Manager fails to execute a Purchase and Sale Agreement with the City within twenty(20) business days from the date Bidder receives the Notice of recommendation from the City Manager, or such reasonable time thereafter as determined by the City Manager in his sole discretion, then the City Manager reserves the right to recommend to the City Commission the Bid of any other Bidder or re -advertise using the same or revised documentation, at its sole discretion. 1.30 The City is being advised in this transaction by the Staubach Company, and will be compensating this advisor under an existing contractual relationship between the City and Staubach. Bidders should note that under no circumstances will the City or Staubach be liable for any compensation or payment of fees to any broker (or other party) representing a purchaser of the Assets. 1.31 Submittal Procedures and Deadline Submissions received in response to the IFB shall meet all requirements specified within the IFB. Submissions deficient in providing the required information shall be determined non -responsive by the City and shall be ineligible for further 18 1` STAUBACH City of Miami Invitation for Bid DRAFT consideration. A complete Bid submission package shall as follows: 1. One (1) original, ten (10) copies of bound proposals.. be delivered to the City 2. Bid submissions must be marked Invitation for Bid — Purchase Proposal for 2nd Avenue Parking Garage Assets, and addressed to: Ms. Lori BilIberry Department of Public Facilities 3. Bids must be received at: Office of the City Clerk City of Miami, City Hall (First Floor Counter) 3500 Pan American Drive Miami, Florida 33133 Date TBD 12:00 AM (EST) The time deadline and proposal receipt location shall be strictly adhered to by the City. No bids shall be received or accepted after TBD Date or at any other City office location, other than the City Clerk's Office (First Floor Counter). 19 STkUBACH tr. tr City of Miami Invitation for Bid DRAFT BID FORM TO: Office of the City Clerk City of Miami, Florida Attention: Department of Public Facilities 1. The undersigned hereby makes a Bid for the purchase of the Assets from the City of Miami, Florida, located at , Miami, Florida. 2. Indicate the purchase price offered to the City of Miami. (in figures (in words). Bids below will be automatically rejected. In the event that there is a discrepancy between the price written in words and the price written in figures, the price written in words shall govern. 20 STAUBACH City of Miami Invitation for Bid DRAFT BID SUBMITTED BY INDIVIDUAL Signature of Bidder Address Print Name of Bidder STATE OF FLORIDA ) SS COUNTY OF ) The foregoing instrument wap I acknowledged before me this day of 2007 by (name of person acknowledging) who is personally known to me or who has produced (type of identification) as identification and who did (did not) take an oath. Signature of Notary Public Print Name Commission No. 21 a f STAUBACH City of Miami Invitation for Bid DRAFT PA RTNERSHIP Signature of Bidder Print Name of Bidder STATE OF FLORIDA COUNTY OF ) SS The foregoing instrument was , 2007 by acknowledging), on behalf of partnership. He/she is personally known to me or who has produced (type of identification) as identification and who did Address acknowledged before me this day of (name of person (name of partnership), a (did not) take an oath. Signature of Notary Public Print Name Commission No. MEMBERS OF PARTNERSHIP MUST ATTACH (1) .COPY OF PARTNERSHIP AGREEMENT(S) AND AMENDMENTS THERETO, IF ANY, (2) LIST OF NAMES AND ADDRESSES OF ALL PARTNERS SPECIFYING WHETHER EACH IS A GENERAL OR LIMITED PARTNER, (3) PROOF OF AUTHORITY OF THE PARTY EXECUTING THIS BID ON BEHALF OF THE PARTNERSHIP, AND (4) AFFIDAVIT THAT THE INFORMATION LISTED IS CURRENT, TRUE AND CORRECT. 22 STAUBACH City of Miami Invitation for Bid DRAFT CORPORATION Corporation is incorporated in the State of President Vice President Secretary Treasurer Place of business is in Signature of President, Vice President or CEO Print Name and Title (Corporate Seal) ATTEST: Secretary Print Name STATE OF FLORIDA COUNTY OF ) ) SS The foregoing instrument was , 2007 by title of officer or agent) of acknowledging), a Address acknowledged before me this day of (name of officer or agent, (name of corporation corporation, on behalf of the corporation. produced who did (did not) take an oath. Signature of Notary Public Print Name Commission No. (state or place of incorporation) He/she is personally known to me or has (type of identification) as identification and ATTACH COPY OF (1) CORPORATE CHARTER, (2) CURRENT CERTIFICATE OF CORPORATE GOOD STANDING, (3) PROOF OF REGISTRATION WITH FLORIDA SECRETARY OF STATE, (4) CERTIFICATE EVIDENCING COMPLIANCE WITH THE FLORIDA FICTITIOUS NAME STATUTE, IF APPLICABLE, (5) COMPLETE LIST OF OFFICERS AND DIRECTORS, AND (6) DULY SIGNED AND DATED CORPORATE 23 liSTAUBACH City of Miami Invitation for Bid DRAFT RESOLUTION GIVING SPECIFIC AUTHORITY TO SUBMIT THIS BID AND DESIGNATING THE AUTHORIZED SIGNATORY OR SIGNATORIES. f 24 STAUBACH City of Miami Invitation for Bid DRAFT EXHIBIT "A" LEGALDESCRIPTION TO BE ATTACHED 25 STAUBACH A u/...I.i City of Miami Invitation for Bid DRAFT EXHIBIT B SAMPLE PURCHASE AND SALE AGREEMENT (MAY BE AMENDED AT THE CITY'S DISCRETION) THIS PURCHASE AND SALE AGREEMENT, (the "Agreement") is made and entered into this day of , 2007, by and between the City of Miami, a municipal corporation of the State of Florida, with offices at 444 SW 2 Avenue, Miami, Florida 3313.0 . (the "Seller"), and "Purchaser"). The Parties hereby agree that Seller shall sell and Purchaser shall bu(the y the following Assets upon the following terms and conditions: 1. DESCRIPTION OF ASSETS; a) Legal Description . Assets Folio No. 01- b) Street Address Miami, Florida c) Improvements ' 2. PURCHASE PRICE AND PAYMENT The Purchaser agrees to pay and the Seller agrees to accept for the Assets the sum of (the "Purchase Price"). The Purchase Price shall be payable as follows: A. Deposit. (1) The selected bidder will be expected to make a deposit equal to 10% of the purchase price ("Deposit") to the City's Escrow Agent (the "Escrow Agent") within I0 business days of being notified in writing by the City of their selection. (2) The Deposit received hereunder by the Escrow Agent shall be placed in an interest bearing account. In case of default the Seller shall retain the Deposit and all interest earned thereon. 26 TAUBACH City of Miami Invitation for Bid DRAFT (3) At Closing (as hereinafter defined) the Deposit, and all interest earned on the Deposit 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 at or before the expiration of the 30 day Due Diligence period due to environmental, title, or survey conditions as provided in paragraphs 4E or 5 herein. B. Closing Payment. At Closing, the Deposit plus the balance of the Purchase Price, dollars (increased or decreased by adjustments, credits, prorations, and expenses as set forth in Section 11 or any other provision of this Agreement) shall be paid by the Purchaser to the Seller in the form of cashier's check, certified check, official bank check or wire transfer. 3. EFFECTIVE DATE/TIME OF ACCEPTANCE The Effective Date of this Agreement shall be the date on which the last party to this Agreement officially executes said Agreement, and the Purchaser has been notified of such approval by facsimile or email. 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 (A) 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; (B) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C., Section 6901 et seq.); (C) any substance regulated by the 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, whether friable or non - friable; (F) polychlorinated biphenyls; and (G) 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 Assets or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Assets or 27 ._ ! STAUBACH City of Miami Invitation for Bid DRAFT adjacent property; or (iii) would constitute a trespass if it emanated or migrated from the Assets. The term "Environmental Requirements" shallmean all Jaws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees, now or hereafter enacted, promulgated,• or amended of the United States, the states, the counties, the cities, or any other political subdivision, agency or instrumentality exercising jurisdiction over the 'Seller or the Purchaser, the Assets, or the use of the Assets, relating 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, without limitation, ambient air, surface water, groundwater, land or soil):' B. Disclaimer As TO Environmental Matters. Purchaser acknowledges and agrees that Seller has not made, does not make and specifically negates and disclaims any representations, warranties (other than the limited warranty of title as set out in the special warranty deed), promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, oral or written, (past, present, or future) of, as to, concerning or with respect to environmental matters with reference to the Assets, including, but not Iimited to: (a) the value, nature, quality or condition of the Assets, including, without limitation, the water, soil and geology, (b) the compliance of or by the Assets, or' its operation with any .Environmental Requirements, (c) any representations regarding compliance with any environmental protection, pollution or land use, zoning or development of regional impact laws, rules, regulations, orders or requirements, including the existence in or on the Assets of Hazardous Materials. Purchaser further acknowledges and agrees that it is being given the opportunity to inspect the Assets, and all relevant documents and records of the Seller as they relate to the Assets, and other documents that may exist in the public records of the state, county and/or city relating to the environmental condition of the Assets as part of this Agreement and that Purchaser is not relying solely upon any documents or representations made by or on behalf of Seller, but that Purchaser is responsible to conduct its own investigation of the Assets. Purchaser further acknowledges and agrees that any information provided or to be provided with respect to the Assets was obtained from a variety of sources and that Seller has not made any independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information. Seller is not liable or bound in any matter by any verbal or written statements, representations or information pertaining to the Assets, or the operation thereof, furnished by any agent, employee, servant or other person. 28 STAUBACH City of Miami Invitation for Bid DRAFT C. Due Diligence Period. Purchaser, its employees, agents, consultants and contractors shall have a period of thirty (30) days from the Effective Date (the "Due Diligence Period") in which to undertake at Purchaser's expense, such physical inspections and other investigations of and concerning the Assets including surveys, soil borings, percolation, engineering studies, environmental tests and studies and other tests as Purchaser considers necessary for Purchaser and his consultants to review and evaluate the physical characteristics of the Assets and to perform certain work or inspections in connection with such evaluation (the "Environmental Inspection") after giving the Seller reasonable notice of twenty-four (24) hours prior to each test performed. The City, at its sole option, may extend the Due Diligence Period for an additional twenty-five (25) days at its sole discretion. 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 Assets during the Due Diligence 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 Assets by the Seller, its employees, officers, agents and tenants. D. Due Diligence Indemnity, Insurance and Releases. Notwithstanding anything contained in this Agreement to the contrary, as consideration for the Seller grantinga continuing right of entry, the Purchaser hereby specifically agrees to: (i) immediately pay or cause to be removed any liens filed against the Assets as a result of any actions taken by or on behalf of Purchaser in connection with the inspection of the Assets; (ii) immediately repair and restore the Assets to its condition existing immediately prior to the Inspection Period; and (iii) indemnify, defend and hold harmless Seller, its employees, officers and agents, from and against all claims, damages or losses incurred to the Assets, or anyone on the Assets as a result of the actions taken by the Purchaser, any of its employees, agents, representatives or contractors, or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable, with respect to the inspection of the Assets, regardless of whether or not such claim, demand, cause of action, damage, liability, loss or expense is caused in part by Seller, its employees, officers, agents and tenants, provided, however, Purchaser shall not be liable for the gross negligence or intentional misconduct of Seller, its employees, officers, agents and tenants. Nothing herein shall be deemed to abridge the rights, if any, of the Seller to seek contribution where appropri ate. 29 STAUBACH City of Miami Invitation for Bid DRAFT The provisions of this indemnity shall survive the Closing or the termination of this Agreement. Prior to Purchaser entering the Assets for purposes of commencement of the Environmental Due Diligence, Purchaser shall furnish to Seller the policy or policies of insurance or certificates of insurance in form and such reasonable, amounts approved by the City 'of Miami's' Risk Manager protecting the Seller, 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 la them or anyone for whose acts they may be liable, upon the Assets or in connection with the Environmental Inspection. Purchaser hereby waives any and all claims against the Seller for personal injury or property damage sustained by, the Purchaser, its employees, agents, contractors, or consultants arising out of or related to the activities undertaken by the Purchaser, its agents, employees, consultants and contractors upon the Assets or in connection with the Environmental Due Diligence and releases the Seller from any claims in connection therewith. E. Remedies/Right of Termination. if Purchaser discovers, during the Investigation Period, the presence of Hazardous Materials on the Assets in levels or concentrations which exceed the standards set forth by DERM, the State or the Federal Government, prior to the end of the Due Diligence Period, Purchaser shall notify Seller in writing and deliver to Seller copies of all written reports concerning such Hazardous Materials (the "Environmental Notice"). The Purchaser and Seller shall have seven (7) business days from the date the Seller receives the Environmental Notice to negotiate a mutually agreeable remediation protocol. In the event the Purchaser and Seller are unable to reach agreement with respect thereto within the seven (7) business day period provided herein, the parties shall have the option within two (2) calendar days of the expiration of the seven (7) business day period to cancel this Agreement by written notice to the other party whereupon (i) all property data and all studies, analysis, reports and plans respecting the Assets delivered by Seller to Purchaser or prepared by or on behalf of the Purchaser shall be delivered by Purchaser to 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 all interest earned. 30 ,;. tl STAUBACH City of Miami Invitation for Bid DRAFT F. Waiver and Release. In the event that Purchaser does not elect to cancel this Agreement, Purchaser acknowledges and agrees that to the maximum extent permitted by law, the sale of the Assets as provided for herein is made on an "AS IS" condition and basis with all faults. Purchaser on behalf of itself and its successors and assigns thereafter waives, releases, acquits, and forever discharges Seller, its heirs, and the successors and assigns of any of the preceding, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Purchaser or any of its successors or assigns now has or which may arise in the future on account or in any way, related to or in connection with any past, present, or future physical characteristic or condition of the Assets including, without limitation, any Hazardous Materials in, at, on, under or related to the Assets, or any violation or potential violation or any Environmental Requirement applicable thereto. In addition, Purchaser thereafter specifically waives all current and future claims and causes of action against Seller arising under CERCLA, RCRA, Chapters 376 and 402, Florida Statutes, and any other federal or state law or county regulation relating to Hazardous Materials in, on, or under the Assets.. Notwithstanding anything to the contrary set forth herein, this release shall survive the Closing or termination of this Agreement. 5. TITLE EVIDENCE Purchaser, at its sole cost and expense, shall be responsible for obtaining all title documents, which Purchaser requires in order to ascertain the status of title. Purchaser agrees to forward a copy of the aforementioned title documents to Seller immediately upon Purchaser's receipt thereof. Seller has no obligation to, but to the extent Seller has evidence of title, including abstracts, prior title policies and title reports, Seller shall provide copies of same to Purchaser, within five (5) calendar days of the Effective Date, to assist in Purchaser's title examination and obtaining title insurance. In the event the Purchaser's examination of title, which examination shall be completed within the Due Diligence period reflects any condition which renders the title unmarketable in accordance with the standards of the Florida Bar (the "Title Defect"), the Purchaser shall allow the Seller sixty (60) calendar days within which to use reasonable diligence to cure the Title Defect. Seller shall use good faith efforts to cure any Title Defect, provided however, Seller shall not be required to bring any action or to incur any. expense to cure any Title Defect or objection. 31 STAUBACH City of Miami Invitation for Bid DRAFT If Seller shall be unable to convey title to the Assets 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 hereto shall be relieved of all further obligation , and liability, and neither party shall have any further claims against the other, except as to Purchaser's liability, if any, arising out the Inspection Indemnity pursuant to Section 4(D) hereof. In addition to the documents set forth in Section 4(E), in the event of cancellation, copies of all abstracts of title respecting the Assets delivered by Seller to Purchaser or prepared by or on behalf of Purchaser shall be delivered by Purchaser to Seller. 6. DISCLAIMER OF WARRANTIES AS TO ASSETS; "AS IS" CONVEYANCE. A. Except as otherwise previously provided in Sections 4 and 5 of this Agreement, Purchaser is purchasing the Assets in an "AS IS" condition and specifically .and expressly without any warranties, representations or guaranties, either express or implied, of any kind, nature or type whatsoever from or on behalf of Seller. Without in any way limiting the generality of the immediately preceding, and in addition to the specific disclaimers set forth in Section 4 of this Agreement with respect to Environmental Matters, Purchaser and Seller further acknowledge and agree that in entering into this Agreement and purchasing the Assets: (1) Purchaser hereby acknowledges that Seller has not made, will not and does not make any warranties or representations, whether express or implied, with respect to the Assets, its condition, the value, profitability, or marketability thereof; (2) Purchaser acknowledges that with respect to the Assets, Seller has not and will not make any warranties, whether express or implied, of merchantability, habitability or fitness for a particular use or suitability of the Assets for any and all activities and uses which Purchaser may conduct thereon; (3) Purchaser acknowledges that Seller has not made, will not and does not make any representations, whether express or implied, with respect to compliance with any land use, zoning or development of regional impact laws, rules, regulations, orders or requirements. (4) Purchaser acknowledges that Purchaser has made and/or shall be given an adequate opportunity to make such legal, factual and other inquiries and 32 ilSTAUBACH City of Miami Invitation for Bid DRAFT investigations as Purchaser deems necessary, desirable or appropriate with respect to the Assets, the value or marketability thereof and of the appurtenances thereto. Such inquiries• and investigations of Purchaser shall be deemed to include, but shall not be limited to, the condition of all portions of the Assets and such state of facts as an accurate abstract of title would show; (5) Purchaser acknowledges that Purchaser has not relied, and is not relying, upon any information, document, projection, proforma, statement, representation, guaranty or warranty (whether express or implied, or oral or written or material or immaterial) that may have been given by or made by or on behalf of Seller. B. The provisions of this Section shall survive the closing. 7. RESTRICTIONS, EASEMENTS AND LIMITATIONS, AND EXISTING CONTRACTS The Purchaser further agrees it' shall take title subject to: zoning, restrictions, prohibitions, and other requirements imposed by governmental authority; restrictions and matters appearing on the public records and public utility easements of record. Purchaser additionally acknowledges the ongoing obligations to provide parking •to : a) Bank of America Tower office tenants, b) Hyatt Hotel guests, c) University of Miami Conferencing facility participants, and d) customers and patrons of events at the Convention Center. A summary of these existing obligations can be found in Attachment A to this document. At closing, Purchaser shall enter into an agreement with the City to provide parking for the Convention Center at rates comparable to that which are charged by the Miami Parking Authority for special events in the downtown area. This agreement with the City will provide for a term that shall expire upon the earlier of 1) 2070; or 2) the Knight Center property is redeveloped with parking provided on -site. 8, CLOSING DATE Closing shall take place within forty-five (45) days after the Effective Date or within a reasonable time thereafter, at a mutually agreeable time (the "CIosing") at the City of Miami, Department of Public Facilities at 444 SW 2 Avenue, Suite 325, Miami, Florida. The parties may, subject to mutual agreement, establish an earlier date for Closing. Notwithstanding the foregoing, in the event the Seller 33 STAUBACH City of Miami Invitation for Bid DRAFT elects to satisfy any title objections pursuant to the terms of Section.5 hereof, then Seller shall have the right to extend the Closing date set forth herein. 9. COVENANT TO PAY FOR MUNICIPAL SERVICES The Purchaser agrees that concurrently with the conveyance of the Assets, at , Closing, the Purchaser shall furnish a covenant which will run with the land and shall be binding on the Purchaser, its successors, heirs and assignees, in favor of the Seller and enforceable by Seller, to be recorded in the public records of Miami -Dade County. This covenant shall provide that if the Assets, or any portion thereof, is purchased by an "exempt entity" or is utilized for exempt purposes, as such term is defined under Chapter 196 Florida Statutes, that so long as the City of Miami provides municipal services to the Assets that the owner shall pay to the City of Miami an annual payment, which shall never be less than, the amount of taxes that the City of Miami would be entitled to receive from the Assets based on the fair market value of the Assets. 10. CLOSING DOCUMENTS .A). At:Closing, Seller shall .execute and/or deliver to, Purchaser the following: (1) Special Warranty Deed subject to conditions, restrictions, easements and limitations of record; (2) A Closing Statement; (3) A Seller's Affidavit and a Non -Foreign Affidavit; (4) Such documents as are necessary to fully authorize the sale of the Assets by Seller and the execution of all closing documents; and (5) Any other documents reasonably necessary or advisable to consummate the transaction contemplated hereby,. B) Purchaser's Closing Documents: At Closing, Purchaser shall execute and/or deliver to Seller the following: (1) Closing Statement; (2) Such documents as are necessary to fully authorize the purchase of the Assets by Purchaser and the execution of all closing documents; 34 STAUBACH City of Miami Invitation for Bid DRAFT (3) Any other documents reasonably necessary or advisable to consummate the transaction contemplated hereby; and (4) Purchaser shall pay to Seller the balance of the Purchase Price as provided for in Section 2 hereof. 11. 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) Rea] Estate Taxest Real estate 'taxes, as applicable, shall be prorated as of the,,Closing Date. 2) 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,. 3) Other Taxes, Expenses, Interest. Etc: Taxes (other than real property taxes), assessments, water and sewer charges, waste fee and fire protection charges, if applicable, shall be prorated as of the Closing Date. 4) Usual and, Customary: Such other items that are usually and customarily pro -rated between purchasers and sellers of properties in the area where the Assets are located. All pro -rations shall utilize the 365-day method. B. Closing Costs (1) .. Each party shall be responsible for its own attorney's fees incurred in connection with the Closing. (2) Purchaser shall pay all other closing and recording costs incurred in connection with the sale and purchase of the Assets described in this Agreement, including, but not limited to: (i) all inspection and environmental testing costs; (ii) documentary stamps and surtax on the deed. 35 STAUBACH City of Miami Invitation for Bid DRAFT (iii) all recording charges, filing fees payable in connection with the transfer of the Assets hereunder; 12. DEFAULT A) If this transaction does not close as a result of default by Seller, Purchaser as and for its sole and exclusive remedies shall be entitled to: (i) elect to terminate this Agreement and receive the return of the Deposit and all interest thereon; or (ii) elect to 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. However, notwithstanding anything contained herein to the contrary, in no event shall Seller be liable to. Purchaser for any actual, punitive, incidental, speculative or consequential damages, costs or fees of any nature whatsoever. The limitation on Seller's liability set forth herein shall survive Closing. 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) 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. 13. RISK OF LOSS The Purchaser assumes all risk of loss or damage to the Assets by fire or other casualty, or acts of God, as of the Effective Date. 14. RELEASE AND INDEMNIFICATION Purchaser and anyone claiming by, through or under Purchaser hereby fully and irrevocably release Seller, its employees, officers, directors, representatives, agents, successors and assigns (collectively the Seller) from any and all claims that it may now have or hereafter acquire against the Seller for any cost, loss, liability, damage, expense, demand, action or cause of action arising from or 36 STAU BACH A %V .ld ..f R.nl Fun.. Y..mc1•d.. • City of Miami Invitation for Bid DRAFT related to any defects, errors, omissions or other conditions, including,. but not limited to, environmental matters, affecting the Assets, or any portion thereof. The foregoing, however, is not intended to release Seller from its obligations under this Agreement. 15. ACKNOWLEDGEMENT OF..TRUSTEE Purchaser acknowledges that the sale of the property will be subject to the approval of the Trustee of the 1987 Revenue Bond utilized to construct a portion. of the Assets. 16. SELLER'S REPRESENTATION Seller and Purchaser acknowledge that neither party has been represented in the disposition of the Assets by. a Licensed State of Florida broker with the exception of the Staubach Company. Staubach has represented the Seller in this transaction and will be compensated directly by the Seller pursuant to an existing contract. 17. DESIGNATION OF REPRESENTATIVES Purchaser and Seller acknowledge that proper communication between Purchaser. and Seller, and between Purchaser and any governmental authorities having jurisdiction over environmental matters, is to be an important component of the Purchaser's Environmental. Due Diligence period and title examination. Accordingly, to facilitate such communication, the Purchaser and Seller have appointed the following persons on their respective behalves to be their environmental and title representatives, to wit: On behalf of Seller: On behalf of Purchaser: City of Miami Department of Public Facilities Lori Billberry, Director 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 Telephone No.: (305) 416-1452 Fax (305) 400-5169 18. NOTICES 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 37 STAUBACH City of Miami Invitation for Bid DRAFT 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: Seller: Pedro G. Hernandez City Manager City of Miami 444 SW 2 Avenue, 10th Floor Miami, FL 33130 Copies To: Lori Billberry, Director City of Miami Department of Public Facilities 444 SW 2 Avenue, 3`d Floor Miami, FL 33130 Jorge L. Fernandez City Attorney 444 SW 2 Avenue, Suite 945 Miami, FL 33130 ' 19. CAPTIONS AND HEADINGS 1 - Purchaser 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. 20. 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 withheld for any or no reason whatsoever. 21. GOVERNING LAW This Agreement shall be governed according to the laws of the State of Florida and venue shall be in Dade County, Florida. 38 STAUBACH A Fat..0d Y.nr.%rdon. • M City of Miami Invitation for Bid DRAFT 22. 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. 23. ATTORNEY'S COSTS If it shall be necessary for either party to this Agreement to bring suit to enforce any provisions hereof or for damages on account of any breach of this Agreement, the prevailing party on any issue in any such litigation and any appeals therefrom shall be entitled to recover from the other party,, in addition to any damages or other relief granted as a result pf such litigation, all costs and expenses of such litigation and a reasonable attorneys' fee as fixed by the court. 24. 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. 25. SURVIVAL OF REPRESENTATIONS/WARRANTIES All relevant terms of this Agreement, where appropriate, shall survive the Closing and be enforceable by the respective parties until such time as extinguished by law. 26. 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. 27. WAIVER OF TRIAL BY JURY The parties hereby knowingly, voluntarily and intentionally waive any right they may have to a trial by jury 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 39 11STAUBACH City of Miami Invitation for Bid DRAFT provision is a material inducement for Purchaser and Seller entering into this Agreement. 28. 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. 29. 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. 30. AUTHORITY OF CITY MANAGER The Resolution of the City Commission of the Seller shall, in addition to approving the purchase contemplated' under this Agreement, empower the City Manager of the Seller to modify this Agreement in the event a modification to this Agreement becomes necessary or desirable. ' IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of the day and year first above written. Signed, sealed and delivered in the presence of: ATTEST: Priscilla A. Thompson City Clerk "SELLER" Executed by CITY OF MIAMI, a municipal corporation of the State of Florida on: By: Pedro G. Hernandez, City Manager 40 STAUBACH City of Miami Invitation for Bid DRAFT APPROVED AS TO FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney "PURCHASER" Executed by: (Print Name) (Purchaser) on ATTEST: Witness Print Name Witness ' 'Print Name 41 STAU BACH