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HomeMy WebLinkAboutExhibit - AgreementPURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into as of May , 2014 (the "Effective Date") by and between CITY OF MIAMI, a Florida municipal corporation ("Seller"), and BCC Road Improvement, LLC., a ("Buyer"). WHEREAS, Seller is acquiring the Property (as hereinafter defined) from the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida by and through its agent, the Division of State Lands of the State of Florida Department of Environmental Protection ("DEP") pursuant to that certain State of Florida Department of Environmental Protection Contract for Sale and Purchase and Deposit Receipt entered into on or about the date hereof (the "DEP Contract"); and WHEREAS, Seller intends to acquire the Property under the DEP Contract; and WHEREAS, subsequent to Seller's acquisition of the Property, Seller desires to convey the Property to Buyer, and Buyer desires to acquire the Property from Seller, pursuant and subject to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Purchase and Sale. In accordance with and subject to the terms and conditions set forth herein, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of Seller's right, title and interest in and to that certain real property located at 602 South Miami Avenue, Miami, Florida (Folio No. 01-4138-070-0010) and 614 South Miami Avenue, Miami, Florida (Folio No. 01-4138-070-0020) located in Miami -Dade County, as legally described on Exhibit A attached hereto (the "Land"), together with (a) all strips and gores of land lying adjacent to the Land, together with all of Seller's rights, title and interest, if any, to the easements, privileges, riparian and other water rights, and all appurtenances pertaining to or accruing to the benefit of the Land and the Improvements (as hereinafter defined);(b) all of the buildings, structures, fixtures and facilities in, on, over and under the Land (collectively, the "Improvements"); (c) all of the Seller's right, title and interest to the furniture, equipment, machinery, and other items of tangible and intangible personal property and replacements thereof, if any, affixed or attached to or used in connection with the ownership, operation, maintenance or management of the Land and/or the Improvements (collectively, the "Personal Property"); and (d) all approvals, development rights, development agreements, permits, licenses, zoning and permit applications and approvals, variances, applications, authorizations, plans, drawings, specifications, surveys, reports and any and all other general intangible rights relating to the Land and/or the Improvements (together with the Land, Improvements and Personal Property, collectively, the "Property"). 3. Purchase Price. The purchase price to be paid by Buyer to Seller for the Property shall be FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00) (the "Purchase Price"), subject to credit for the Deposit (as hereinafter defined) and subject to the prorations and adjustments as provided for in this Agreement. 4. Deposit. To secure the performance by Buyer of its obligations under this Agreement, within two (2) business days after the Effective Date, Buyer shall deliver to Fidelity National Title Insurance Company, in its capacity as escrow agent hereunder ("Escrow Agent"), the sum of One {28518373;1} Hundred and No/100 Dollars ($100.00) by wire transfer of immediately available federal funds, the proceeds of which shall be held by Escrow Agent as an earnest money deposit (together with all interest earned thereon, if any, the "Deposit"). 5. Title. Prior to the Closing Date (as hereinafter defined), Buyer may obtain the following (collectively, the "Title Evidence"): (i) a title insurance commitment (the "Title Commitment") for the Property from its counsel, Akerman LLP, as agent for a national title insurance underwriter, or directly from the title insurance underwriter (the "Title Company"), whereby the Title Company agrees to issue at Closing (as hereinafter defined) an ALTA owner's policy of title insurance (the "Title Policy") covering the Land and the Improvements in an amount equal to the Purchase Price; (ii) an up-to-date survey of the Property; and/or (iii) searches for any violations, open permits, tax liens or other liens or outstanding municipal fees affecting the Property. As a condition to Closing, Seller shall have delivered the Land and Improvements free and clear of all liens and exceptions, except for (i) applicable zoning and other regulatory laws and ordinances; (ii) any title exceptions or encumbrances arising by, through or under Buyer; and (iii) any matter set forth in the Title Evidence which is not objected to by Buyer in writing to Seller prior to the Closing Date. Seller agrees to deliver at Closing a title affidavit in form and substance acceptable to the Title Company to remove the standard exceptions set forth on Schedule B-II of the Title Commitment, provided, that in no event shall Seller be required to cause the standard survey exception to be removed unless Buyer has obtained a survey in form sufficient to the Title Company to remove same. 6. Due Diligence Period; Inspections. (a) Until the Closing Date, the Buyer and its agents, employees and representatives shall have the right to access the Property at all times in order to, at Buyer's sole cost and expense, inspect the Property and to conduct such physical, mechanical, electrical, plumbing, zoning, land use, environmental and other examinations, studies, tests, analyses, investigations and inspections of the Property as Buyer and its agents, employees and representatives may deem necessary (collectively, the "Inspections"). Buyer shall remove or bond any lien of any type which attaches to the Property as a result of the Inspections. Upon completion of the Inspections, Buyer shall restore any damage to the Property caused by the same. (b) Seller represents and warrants that prior to the execution of this Agreement, Seller has delivered to Buyer true, correct and complete copies of the following, to the extent in Seller's possession or control: any leases or service contracts affecting the Property, a list of the Personal Property, all surveys, title policies, legal descriptions, environmental and/or soil reports and/or assessments, permits, licenses, zoning and land use applications and approvals, contracts, agreements, engineering and architectural plans and reports, marketing studies, insurance policies and claim information, and any other materials in Seller's possession or control relating to the ownership and/or development of the Property. (c) On or prior to the Closing Date, Buyer shall have the right, upon written notice to Seller (the "Election Notice") electing, in Buyer's sole and absolute discretion and for any reason or no reason whatsoever, to either: (i) proceed to Closing and waive its right to terminate this Agreement pursuant to this Section 6(c); or (ii) terminate this Agreement, whereupon this Agreement shall be terminated, the Deposit shall be returned to Buyer and both parties hereto shall thereafter be released from all further obligations under this Agreement except those obligations which expressly survive the termination of this Agreement. In the event Buyer does not timely deliver an Election Notice as set forth above, Buyer shall be deemed to have terminated this Agreement in accordance with clause (ii) of the preceding sentence. {28518373;1} 7. Covenants; Conditions Precedent. Seller hereby covenants that from and after the Effective Date, Seller shall (a) keep the Property in its current condition and repair, ordinary wear and tear, condemnation and damage by fire or other casualty excepted, (b) not sell, mortgage, pledge, hypothecate or otherwise transfer or dispose of all or any part of the Property, (c) not impose or allow to be imposed any new lien, encumbrance or other matter affecting title to the Property or grant or allow to be granted any right in, on or to the Property without the prior written consent of Buyer, (d) not enter into any new lease, sublease or other occupancy agreement or renew or amend any existing lease, sublease or occupancy agreement without the prior written consent of Buyer and (e) not enter into any new service contract or agreement or renew or amend any existing service contract or agreement without the prior written consent of Buyer. It shall be a condition precedent to Buyer's obligation to close on the Property (i) that any leases (excluding the DJJ Lease (as hereinafter defined) and service agreements requested to be terminated by Buyer be terminated by Seller effective as of the Closing Date and (ii) that Seller shall have acquired the Property under the DEP Contract. Notwithstanding anything herein to the contrary, the parties understand that The State of Florida Department of Juvenile Justice ("DJJ") holds Board of Trustees Lease No. 4664 on the Property (the "DEP Lease"), effective until June 13, 2054, but that such lease shall be terminated with respect to the Property and DJJ will vacate the Property on or before July 1, 2014. 8. Default. (a) Buyer's Default. In the event that Buyer fails to perform all of Buyer's obligations set forth in this Agreement in all material respects as of the Closing, and such failure or breach is not cured by Buyer within three (3) days after delivery of written notice thereof from Seller, Seller may elect, as its sole and exclusive remedy for such failure or breach by Buyer, to terminate this Agreement by delivering written notice to Buyer and Escrow Agent, whereupon Escrow Agent shall deliver to Seller the Deposit as agreed -upon liquidated damages for such breach, and upon payment of the same, this Agreement shall terminate and both parties hereto shall thereafter be released from all further obligations under this Agreement except those obligations which expressly survive the termination of this Agreement. (b) Seller's Default. In the event that Seller fails to perform all of Seller's obligations set forth in this Agreement in all material respects, and such failure or breach is not cured by Seller within three (3) days after delivery of written notice thereof from Buyer, Buyer may elect, as its sole and exclusive remedy for such failure or breach by Seller, to either: (i) to terminate this Agreement by delivering written notice to Seller and Escrow Agent, whereupon (y) Seller shall promptly reimburse Buyer for all documented out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement and the Inspections, including, but not limited to, third party vendor costs, title, survey, zoning and legal costs and expenses, and (z) Escrow Agent shall return the Deposit to Buyer, and upon receipt by Buyer of the same, this Agreement shall terminate and both parties hereto shall thereafter be released from all further obligations under this Agreement except those obligations which expressly survive the termination of this Agreement; or (ii) seek specific performance of Seller's obligations hereunder. Notwithstanding anything to the contrary herein, in the event specific performance is not an available remedy as a result of Seller having sold the Property to a bona fide third party purchaser in violation of this Agreement, Buyer shall have the right to take action against Seller for damages available at law. 9. Closing Prorations and Adjustments. Buyer and Seller shall cooperate in good faith to make any prorations and adjustments and to prorate all items customarily prorated in connection with the purchase and sale of commercial property similar to the Property, including, without limitation, any special assessments, rents, utilities, and security deposits. If accurate prorations cannot be made at Closing because current figures or bills are not obtainable, Buyer and Seller shall prorate such revenue or expenses at Closing in good faith on the best available information, subject to adjustment upon receipt of {28518373;1} the final figures or bills or other evidence of the applicable revenue or expense. The provisions of this Section 9 shall survive the Closing. 10. Closing Costs. The Buyer shall bear the following costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby: (i) the cost of obtaining the Title Evidence; (ii) the premium for the Title Policy, along with the premiums for any required endorsements; (iii) all costs and expenses associated with any fmancing obtained by Buyer in connection with the acquisition of the Property; (iv) documentary stamps taxes, surtaxes or equivalent transfer taxes due in connection with the conveyance of the Property to Buyer; (v) recording fees associated with the deed; and (vi) all costs and expenses associated with preparing and recording any and all corrective instruments in order to convey the Property to Buyer and (vii) all costs and expenses associated with the Inspections. 11. Closing. (a) Closing Date. The consummation of the transactions contemplated by this Agreement (the "Closing") shall be conducted by way of Mail (as hereinafter defined) or by such other method or at such location as may be mutually agreed to by the parties in writing on the date (the "Closing Date") which is ( ) days after the Seller acquires the Property under the DEP Contract. The term "Mail" shall mean overnight mail delivery by national overnight courier service whereby all closing documents and funds are delivered in escrow to Escrow Agent for disbursement on the Closing Date. (b) Seller's Deliveries. At Closing, Seller shall execute (if applicable) and deliver to Buyer each of the following: (i) a Quit Claim Deed; (ii) a bill of sale conveying the Personal Property to Buyer; (iii) a customary gap, exclusive possession, mechanic's lien and FIRPTA affidavit in the form as required by the Title Company; (iv) an executed counterpart of a closing statement covering the purchase and sale of the Property as contemplated herein; (v) such other documents, instruments and/or deliveries as are required to be delivered by Buyer pursuant to the terms of this Agreement; (vi) possession of the Property; (vii) all keys and alarm codes for the Property with identification of the lock and alarm to which each such key and code relates; and (viii) such other documents, instruments and/or deliveries as are required to be delivered by Seller pursuant to the terms of this Agreement. (c) Buyer's Deliveries. At Closing, Buyer shall: (i) pay the Purchase Price to Seller, subject to credit for the Deposit and subject to the prorations and adjustments as provided for herein, by wire transfer of immediately available federal funds; (ii) deliver an executed counterpart of a closing statement covering the purchase and sale of the Property as contemplated herein; and (iii) such other documents, instruments and/or deliveries as are required to be delivered by Buyer pursuant to the terms of this Agreement. 12. Brokers. Each party hereto represents to the other that it has not dealt with any broker or finder in connection with this transaction. 13. Assignability. Notwithstanding anything to the contrary herein: Buyer shall have the right to assign its rights under this Agreement to an entity affiliated with Buyer. Subject to the foregoing sentence, this Agreement shall be binding upon the parties hereto and their respective successors and assigns. {28518373;1} 14. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed given if delivered by hand, sent by recognized overnight courier or transmitted via facsimile or e-mail addressed as follows: If to Buyer: With a copy to: If to Seller: [ ] [ ] [ ] [ ] Attention: [ ] Fax: [ ] email: [ ] Akerman LLP One Southeast Third Avenue, 25th Floor Miami, FL 33131 Attention: Neisen Kasdin and Spencer Crowley Fax: (305) 374-5095 email: neisen.kasdin@akerman.com spencer.crowely@akerman.com City of Miami Department of Public Facilities 444 S.W. 2nd Avenue, 3rd Floor Miami, Florida 33130 Attention: [Director of Public Facilities] Fax: [ ] email: [ ] With a copy to: [City of Miami] [Office of the City Attorney] [444 S.W. 2nd Avenue, 9th Floor] [Miami, Florida 33130] Attention: [City Attorney] Fax: [ email: [ ] ] If to Escrow Agent: Fidelity National Title Insurance Company [ 1 [ ] [ ] Attention: [ ] Fax: [ ] email: [ ] Notices personally delivered or sent by overnight courier shall be deemed given on the date of receipt, and notices sent via facsimile transmission shall be deemed given upon transmission and proof of receipt as evidenced by a confirmation of transmittal page. Notices sent by e-mail shall be deemed sent upon transmission if sent to the recipient party's e-mail address shown above and the e-mail message is not returned to the sender as being undeliverable. For the purposes of this Agreement, the attorney for any of the parties to this Agreement shall be permitted to deliver any and all notices under this {28518373;1) Agreement on behalf of his or her client, and any notice so delivered by said attorney shall be deemed as delivered by his or her client as if his or her client had delivered the same directly. 15. Casualty; Condemnation. If after the Effective Date and prior to Closing, the Property or any part thereof shall (i) be destroyed or damaged by fire or other casualty, or (ii) be condemned or transferred in lieu of condemnation or become the subject of pending or threatened condemnation proceedings, the Seller shall notify Buyer in writing of such casualty or condemnation (each a "Loss") and Buyer shall have the right within ten (10) days of receipt of such notice to (a) terminate this Agreement and receive a return of its Deposit, in which case the parties shall not have any further obligations to one another or (b) waive such right to terminate and proceed to Closing, in which case, Seller shall assign the proceeds from any insurance company or condemning authority to Buyer. 16. Miscellaneous. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. (b) All of the parties to this Agreement have participated fully in the negotiation and preparation hereof and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. (c) In the event any provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or reconstrued as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (d) In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and court costs through all trial and appellate levels and proceedings (including without limitation fees to determine fees); the provisions of this clause (d) shall survive the Closing and any earlier termination of this Agreement. (e) All of the Exhibits to this Agreement are incorporated into and made a part of this Agreement by this reference. (f) This Agreement constitutes the entire agreement between the parties for the sale and purchase of the Property, and supersedes any other agreement or understanding of the parties with respect to the matters herein contained. (g) This Agreement may not be changed, altered or modified except in writing signed by both parties hereto. (h) Time is of the essence as to each provision of this Agreement. (i) Seller and Buyer each covenant and agree to sign, execute and deliver, or cause to be signed, executed and delivered, and to do or make, or cause to be done or made, upon the written request of the other party, any and all agreements, instruments, papers, deeds, acts or things, supplemental, confirmatory or otherwise, as may be reasonably required by either party hereto for the purpose of or in connection with consummating the transactions described herein. (j) This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original, and all of which shall be deemed to be one and the same instruments. Electronically -transmitted signatures shall be deemed originals. 17. Calculation of Time Periods. All time periods referred to herein shall mean calendar days unless otherwise expressly described as business days. A business day is any day other than a Saturday, Sunday or day upon which commercial banks in the State of Florida are closed. In the event a time period in this Agreement ends on a day which is not a business day, the time period shall be deemed continued until the next business day. 18. Radon Disclosure. "RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department." [Signature(s) on following page(s).] {28518373;1} IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the Effective Date. SELLER ATTEST: By: Todd B. Hannon, City Clerk Daniel J. Alfonso, City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez, City Attorney Ann -Marie Shape, Risk Management Interim Director (OFFICIAL SEAL) BUYER: By: Name: Title: {28518373;1} EXHIBIT A LEGAL DESCRIPTION OF THE LAND Tract "A" and Tract "B", 602 Complex, according to the plat thereof, recorded in Plat Book 139, Page 41 of the Public Records of Dade County (now Miami -Dade County), Florida {28518373;1}