HomeMy WebLinkAboutCRA-R-23-0046 Exhibit AExhibit "A"
AGREEMENT
THIS AGREEMENT is made and entered into as of the st day of ,
2023, by and between Gloria B. Lewis ("Lewis") PEOPLE'S DRUG STORE, INC., a
Florida corporation ("Peoples Drug") and PEOPLE'S STEW & QUE, LLC, a Florida
liability company ("Peoples", together with Peoples Drug and Lewis, collectively, the
"Seller"), and SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (the "Purchaser").
WITNESSETH:
For and in consideration of the mutual covenants and agreements contained
herein and for other good and valuable consideration, the adequacy and receipt of
which are hereby acknowledged by the parties hereto, the parties agree, covenant
and contract as follows:
ARTICLE I
PROPERTY
1.1 The property to be sold, conveyed, assigned or otherwise transferred by
Seller to Purchaser at closing (hereinafter collectively called the "Property") consists
of the following:
1.1.1 Those parcels of real property located at 350 N.W. 8th Street,
360 N.W. 8th Street, 374 N.W. 8th Street and 378 N.W. 8th Street, Miami,
Florida, as more particularly described on Exhibit "A" attached hereto and
made a part hereof and all appurtenances belonging thereto, including any
and all riparian rights, accretions, rights, privileges and easements in any
way pertaining thereto, all right, title and interest in and to any adjoining
sidewalk and in and to any adjoining street or alley (hereafter collectively
referred to as the "Land").
1.1.2 The buildings and improvements located on the Land (the
"Improvements").
1.1.3 All of Seller's right, title and interest in all fixtures and
equipment and personal property located on the Land, including without
limitation, the fixtures and equipment purchased with the proceeds of the
Grant, as herein after defined, and personal property used in connection with
the Improvements, as more particularly described in the attached Exhibit
"B" (hereafter collectively referred to as the "Personal Property").
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1.1.4 All contracts, subcontracts, arrangements, licenses,
concessions, service agreements, and agreements held by Seller relating
exclusively to the Land or the Improvements or maintenance or operation of
the Land or Improvements which are assignable, excluding any management
contracts, employment agreements and brokerage agreements, all of which
shall be terminated by Seller at Closing (hereafter collectively referred to as
the "Contracts").
1.1.5 The billboard lease with Comcast with respect to a portion of
the Land (the "Lease").
1.1.6 All warranties and guarantees in connection with the
Improvements and Personal Property, if any (the "Warranties").
1.1.7 All licenses, permits, and approvals issued by the applicable
governmental authority relating to the use and occupancy of the
Improvements including without limitation the license required to operate
the Improvements as a restaurant, to the extent transferable by law (the
"License and Permits").
1.1.8 All rights of Seller to use the names "PEOPLE'S BAR-B-
QUE"; "PEOPLE'S BARBEQUE"; "PEOPLE'S STEW & QUE" and any other
name utilized by Seller with respect to the Land and Improvements. [OPEN
WHAT NAMES HAVE BEEN USED?]
1.1.9 The liquor license utilized Seller with respect to the
operation of the Improvements, to the extent transferable by law. [OPEN, IS
THERE ONE?]
ARTICLE II
DEPOSIT
2.1 Within two (2) business days of the Effective Date, as hereinafter defined,
Purchaser shall deliver to Holland & Knight LLP, as escrow agent (the "Escrow
Agent"), the sum of One Hundred Thousand Dollars ($100,000.00) (the "Deposit").
The Deposit shall be held in a non -interest bearing account.
ARTICLE III
PURCHASE PRICE
3.1 The purchase price ("Purchase Price") for the Property is the Three
Million Five Hundred Thousand and No/100 Dollars ($3,500,000.00), subject to
adjustment and prorations as hereinafter provided. The Purchase Price shall be
paid to Seller as follows:
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$
$
100,000.00 being the Deposit, which sum shall be paid to Seller at
Closing.
3,400,000.00 approximately, in cash, subject to prorations and
adjustments, as hereinafter provided, to be paid by
cashier's check or by wire transfer of federal funds on the
Closing Date, as hereinafter defined.
$ 3,500,000.00 TOTAL PURCHASE PRICE.
ARTICLE IV
TITLE
4.1 Purchaser shall have until the end of the Investigation Period hereinafter
defined, to obtain a title insurance commitment (the "Commitment") issued by
Chicago Title Insurance Company, First American Title Insurance Company or
Lawyers Title Insurance Corporation (the "Title Company") binding the Title
Company to insure good, marketable and insurable fee simple title to the Land in
Purchaser by its ALTA Form 2021 Owner's Title Insurance Policy, at then current
standard rates with insurance in the amount of the Purchase Price (the "Owner's
Policy") upon the recording of the warranty deed to be given by Lewis. The
Commitment shall show Lewis to be vested with good and marketable and
insurable fee simple title to the Land and Improvements, free and clear of all liens
and encumbrances, except the following:
(i) Ad valorem real estate taxes and personal property taxes for
2023 and subsequent years.
(ii) All applicable zoning ordinances and regulations.
(iii) Matters set forth on Exhibit "C" attached hereto and made a
part hereof. (Items i, ii and iii are hereafter collectively referred to as the "Permitted
Exceptions")
4.2 Purchaser shall have until the end of the Investigation Period to
specifically object in writing to any particular condition of title or exception revealed
by the Commitment, other than the Permitted Exceptions. If Purchaser fails to
specifically object in writing to any particular condition of title or exception set forth
in the Commitment prior to the end of the Investigation Period, then same shall be
deemed waived and such condition of title or exception shall be deemed to constitute
a Permitted Exception. Seller shall utilize its best efforts to eliminate or cure any
title defects raised by Purchaser on or before the Closing Date. Seller shall remove
by payment or bonding, or otherwise any judgment, mechanic's lien against the
Property, in a liquidated amount, capable of removal by the payment of money or
bonding. In the event Seller is unable to modify such unacceptable exceptions or to
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cure such title deficiencies prior to the Closing Date, then Purchaser shall elect on
the Closing Date to either cancel this Agreement, in which event Escrow Agent
shall return the Deposit, Purchaser and Purchaser and Seller shall be released from
any further obligations under this Agreement except those obligations arising under
Sections 5.1 and 5.2 of this Agreement, or Purchaser may waive the objection to the
condition of title and close hereunder without reduction of the Purchase Price.
4.3 Purchaser shall have until the end of the Investigation Period to cause an
accurate survey of the Property (the "Survey") to be made at Purchaser's sole cost
and expense, by a surveyor licensed in the State of Florida. If the Survey shows any
encroachments, gaps, gores, easements, rights -of -way or any other type of
encumbrance or impediment not authorized by this Agreement, Purchaser shall
give written notice of such defect to Seller, on or before the end of the Investigation
Period, in which event said defect shall be governed in the same manner and time
as objections to title are dealt with in Section 4.2 and the parties shall have the
same rights, privileges and obligations as if the defect was an objection to title as
specified in Section 4.2 of this Agreement. The Survey shall be certified to the
Purchaser, Seller and the Title Company and show the location of all of the
Permitted Exceptions, to the extent it is possible to locate same. The Survey must
further be certified to comply with the Minimum Technical Standards for Land
Surveying in Florida set forth by the Florida Board of Land Surveyors pursuant to
Florida Statutes Section 472.027.
ARTICLE V
STATUS OF PROPERTY
5.1 Seller grants to Purchaser and its agents, as well as contractors employed
by or hired by Purchaser, the right to enter the Property during normal business
hours to do and perform such reasonable acts and things as Purchaser deems
necessary or appropriate, to make soil tests, borings, engineering studies,
environmental tests, surveys and like tests and studies of the Property, review the
Lease and conduct any other tests and studies that Purchaser deems appropriate.
Purchaser agrees to repair or restore promptly any damage to the Property caused
by Purchaser, its agents and contractors and restore same to its original condition.
Purchaser agrees to pay for all such work, labor and services that shall be
performed on behalf of Purchaser and to obtain waivers of lien or paid bills
therefore and shall indemnify and hold Seller harmless from any claims of any such
persons. This provision shall survive the termination of this Agreement.
5.2 Purchaser agrees to indemnify and hold Seller harmless from any and all
loss, claim, demand, action and liability which may arise against Seller or the
Property by virtue of any actions by Purchaser in connection with conducting
inspections of the Property. This indemnification and hold harmless shall include
reasonable attorneys' fees and court costs through all trial and appellate levels
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which the Seller may incur in defending itself or the Property against any such
claims, losses, actions, demands and liabilities and in enforcing the terms of this
indemnification and hold harmless provision. This indemnification and hold
harmless provision shall survive the closing or termination of this Agreement, shall
be continuing and irrevocable and shall continue in force and effect until any and all
such claims, losses, actions, demands and liabilities against the Seller or the
Property have been satisfied in full.
5.3 Purchaser shall have twenty (20) days from the Effective Date (the
"Investigation Period") to inspect any and all matters concerning the Property
which Purchaser, in Purchaser's sole discretion, deems significant, including,
without imitation environmental matters, the condition of the Improvements, soil
conditions, ingress and egress, utilities, the Licenses and Permits, the liquor
license, the Contracts, and the Lease. In the event that Purchaser is not satisfied
with the condition of the Property, in Purchaser's sole discretion, on or prior to the
expiration of the Investigation Period, Purchaser shall have the option of either: (i)
waiving the condition and Closing in accordance with the terms of this Agreement
without reduction in the Purchase Price, or (ii) canceling this Agreement by written
notice to Seller given on or prior to the end of the Investigation Period, in which
event the Escrow Agent shall return the Deposit to Purchaser, whereupon the
parties shall be released from any further obligations under this Agreement except
for those obligations contained in Section 5.1 and 5.2.
5.4 Within two (2) days following the Effective Date of this Agreement, Seller
shall deliver to Purchaser the due diligence materials (the "Due Diligence
Materials") consisting of true, correct and complete copies (or true, correct and
complete written reports if the agreement is oral) of:
5.4.1 The Lease and all amendments thereto, together with all
correspondence with the tenant under the Lease.
5.4.2 The Contracts and all amendments thereto.
5.4.3 All appraisals, feasibility studies, as built surveys,
engineering studies, architectural, as -built mechanical, electrical and
structural plans and specifications, soil tests and other tests or studies
relating to the Land an/or Improvements, including all transportation,
environmental or zoning reports, studies or reviews covering or relating to
the Land and/or Improvements in Seller's possession or control (the
"Studies").
5.4.4 All permits, licenses or approvals issued by any board,
association, government body or agency having jurisdiction over the Property,
related to the ownership and/or operation of the Property within Seller's
possession or control.
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5.4.5 A copy of the liquor license.
5.4.6 Copies of all guarantees and warranties, if any, with respect
to the Improvements and Personal Property.
5.4.7 Copies of any existing title insurance policies.
5.5In the event Seller elects to terminate this Agreement at the end of the
Investigation Period, Purchaser shall promptly redeliver all such materials to
Seller.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER
6.1In order to induce Purchaser to purchase the Property, and to close
pursuant to this Agreement, Seller represents and warrants to Purchaser that:
6.1.1 Peoples is a duly organized Florida limited liability company
in good standing under the laws of the State of Florida. Peoples has full
power and authority to enter into this Agreement and otherwise perform all
obligations of Peoples under this Agreement in accordance with its terms,
and that all action necessary to authorize the execution and fulfillment of
this Agreement by Peoples has been taken.
6.1.2 Peoples Drug is a duly formed Florida corporation in good
standing under the laws of the State of Florida. Peoples Drug has full power
and authority to enter into this Agreement and otherwise perform all
obligations of Peoples Drug under this Agreement in accordance with its
terms, and all action necessary to authorize the execution and fulfillment of
this Agreement by Peoples Drug has been taken.
6.1.3 Lewis owns good and marketable fee simple title to the Land
and Improvement free and clear of all liens and encumbrance other than the
Permitted Exceptions and the Mortgage, as hereafter defined. The Land is
located at the addresses set forth in Section 1.1.1 of this Agreement.
6.1.4 There are no UCC-1 Financing Statements filed with respect
to the Property.
6.1.5 This Agreement, when executed and delivered, will be a valid
and binding obligation of Seller, enforceable in accordance with its terms.
6.1.6 Seller is not the subject of any proceeding or lawsuit, actual
or threatened, at law or in equity, nor is Seller now the subject of pending,
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threatened or contemplated bankruptcy proceeding which might affect its
ability to sell the Property according to the terms hereof.
6.1.7 Except for the Lease and the Contracts, Seller has not
entered into any leases, contracts, subcontracts, arrangements, licenses,
concessions, or other agreements, including, without limitation, service
arrangements, management agreements and employment agreements, either
recorded or unrecorded, written or oral, affecting the Property or any portion
thereof or the use, operation or maintenance thereof, which will survive the
Closing.
6.1.8 All of the Contracts are listed on Exhibit "D" attached
hereto and all of the Contracts can be cancelled on not more than thirty (30)
days notice, without penalty.
6.1.9 Until Closing, Seller shall (i) maintain a reasonable
maintenance and repair operation with respect to the Improvement and (ii)
comply fully with the Lease and the Contracts.
6.1.10 Any alterations, installations, renovations and repairs to the
Improvements contemplated by the Grant Agreement have been completed
and paid for in full. Any brokerage fees or similar commissions which are or
will become due and payable in connection with the Lease shall be paid in full
by Seller at or prior to Closing.
6.1.11 Seller shall be responsible for and shall pay in the ordinary
course of business all amounts owed for labor, materials supplied, services
rendered and/or any other bills or amounts incurred by Seller with respect to
Seller's ownership and/or operation of the Property prior to Closing.
6.1.12 Prior to Closing, no portion of the Property or any interest
therein shall be alienated, encumbered, conveyed or otherwise transferred.
6.1.13 Seller shall prior to Closing full comply with all laws, rules,
regulations, and ordinances pursuant to any notice(s) from any governmental
authorities having jurisdiction over the Property, which are applicable to the
Property.
6.1.14 No portion of the Property is being acquired by any
government authority in the exercise of its power to condemn or to acquire
through eminent domain or private purchase in lieu thereof nor, to the best of
Seller's knowledge, are any of these proceedings or actions threatened or
imminent.
6.1.15 There are no actions, suits or proceedings, existing, pending
or, to the best of Seller's knowledge, threatened against, or by Seller in any
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court or before any government agency relating to the Property, the
ownership of the Property, or Seller's ability to convey the Property.
6.1.16 As of the date hereof the Lease is in good standing, without
default on the part of the Seller.
6.1.17 All sales tax due with respect to the Lease and the operation
of the Improvements has been properly paid to the State of Florida and there
are no pending claims by the Florida Department of Revenue against Seller.
6.1.18 There are no employees of the Property.
6.1.19 Seller has delivered to Purchaser true, correct and complete
copy of the Lease. There are no defaults under the Lease.
6.1.20 Seller has not received any written notice from any
governmental authority of a violation of any governmental requirements
(including environmental laws) with respect to the Property, which has not
been remedied.
6.1.21 Seller has not received, with respect to the Property, written
notice from any governmental authority regarding any change to the zoning
classification, any pending or threatened condemnation proceedings or
proceedings to widen or realign any street or highway adjacent to the
Property.
6.1.22 Seller is not a "foreign person" within the meaning of
Sections 1445 and 7701 the Internal Revenue Code of 1986, as amended
(hereinafter, the "Code").
6.1.23 Seller has not received written notice of any special
assessment with respect to the Property.
6.1.24
thereof.
There are no options to purchase the Property or any portion
6.1.25 To Seller's knowledge, there are no pending or threatened
tenant audits with respect to the Lease and all reconciliations contemplated
under the Lease for the year 2022 and prior years have been completed and
the required adjustments made.
6.1.26 The Property is in compliance in all material respects with
the following (herein collectively called the "Environmental Laws"): the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 41 U.S.C. § 6901,
et seq., as amended, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
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Reauthorization Act of 1986 ("CERCLA"), 42 U.S.C. § 9601, et seq., and any
other federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of
conduct concerning, any hazardous substance. Seller has not received notice
of any liens on the Property created, permitted or imposed by any
Environmental Laws. Seller has not received written notice of or is aware of
any actual, asserted or threatened, liability or obligation of the Seller, related
to the Property, under any Environmental Laws.
6.1.27 Seller has not received written notice of any (i) pending
improvement liens made by an governmental authority with respect to the
Property; (ii) violations of building, fire, health, safety or environmental codes
and/or zoning ordinances or other governmental regulations with respect to
the Property; or (iii) defects or inadequacies in the Property which would
adversely affect the insurability of the Property or increase the cost thereof.
6.1.28 As used herein, "Anti -Terrorism Law" is defined as any
law relating to terrorism, anti -terrorism, money-laundering or anti -money
laundering activities, including Executive Order No. 13224 and the USA
Patriot Act. As used herein "Executive Order No. 13224" is defined as
Executive Order No. 13224 on Terrorist Financing effective September 24,
2001, and relating to Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism."
"Prohibited Person" is defined as (i) a person or entity that is listed in the
Annex to, or is otherwise subject to the provisions of, Executive Order 13224;
(ii) a person or entity owned or controlled by, or acting for or on behalf of, any
person or entity that is listed in the Annex to, or is otherwise subject to the
provisions of, Executive Order 13224 above; (iii) a person or entity with whom
Seller is prohibited from dealing or otherwise engaging in any transaction by
any Anti -terrorism Law; (iv) a person or entity who commits, threatens or
conspires to commit or supports "terrorism" as defined in Executive Order
13224; (v) a person or entity that is named as a "specially designated national
and blocked person" on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control at its official website,
http://www.treas.gov/ofac/tllsdn.pdf or at any replacement website or other
official publication of such list; or (vi) a person or entity who is affiliated with
a person or entity described in (i) — (v) above. "USA Patriot Act" is define
as the "Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001" (Public Law 107-
56). Seller hereby represents and warrants as follows, and such
representations and warranties shall survive in the Closing: None of Seller or
its constituents or affiliates are or will be in violation of any Anti -Terrorism
Law. None of Seller or any of their respective constituents or affiliates, any
of its respective brokers or other agents acting or benefiting in any capacity
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in connection with the Seller or, to Seller's knowledge as of the date hereof is
or will:
(A) conduct business or engage in any transaction or
dealing with any Prohibited Person, including the making or
receiving of any contribution of funds, goods or services to or for
the benefit of any Prohibited Person;
(B) deal in, or otherwise engage in any transaction
relating to, any property or interest in property blocked
pursuant to Executive Order no. 13224;
(C) engage in or conspire to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding,
or attempts to violate, any of the prohibitions set forth in any
Anti -Terrorism Law.
(D) Seller covenants and agrees to deliver to Purchaser
any certification or other evidence requested from time to time
by Purchaser in its sole discretion, confirming Seller's
compliance with the requirements of this paragraph.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
7.1In order to induce Seller to sell the Property, and to close pursuant to this
Agreement, Purchaser hereby represents and warrants to Seller, that:
7.1.1 Purchaser is a public agency and body corporate under the
laws of the State of Florida. Purchaser has full power and authority to enter
into this Agreement and otherwise perform all obligations of Purchaser under
this Agreement in accordance with its terms, and all required action
necessary to authorize the execution and fulfillment of this Agreement by
Purchaser as it had been taken.
7.1.2 This Agreement, when executed and delivered, will be a valid
and binding obligation of Purchaser, enforceable in accordance with its terms.
7.1.3 Purchaser is not the subject of any proceeding or lawsuit,
actual or threatened, at law or in equity, nor is Purchaser now the subject of
pending, threatened or contemplated bankruptcy proceeding which might
affect its ability to purchase the Property according to the terms hereof.
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ARTICLE VIII
CONDITIONS PRECEDENT TO CLOSING
8.1 Unless waived by Purchaser in writing, the obligation of Purchaser to
close is conditional upon satisfaction of the following conditions by the Closing Date:
8.1.1 All representations and warranties of Seller shall remain
true and correct as of closing.
8.1.2 Seller shall have performed (or tendered performance of) all
material covenants, obligations, terms and provisions of this Agreement to be
performed by Seller.
8.1.3 Seller has obtained an estoppel letter from the tenant under
the Lease confirming that the Lease is in good standing with no default on
the part of Seller and the date rent is paid through.
8.1.4 None of the governmental authorities having jurisdiction
over the Property shall have issued notice(s) of violation of any applicable
laws or regulations, which remains uncured.
8.1.5 Purchaser and Seller have agreed on the terms of the
Termination Agreement, as hereinafter defined.
8.1.6 The Title Company is prepared to issue the Owner's Policy
subject only to the Permitted Exceptions.
8.2In the event any of the foregoing conditions precedent to closing are not
satisfied by the Closing Date, then in such event Purchaser shall have the option of
(i) waiving the condition and closing in accordance with the other terms and
provisions of this Agreement without reduction to the Purchase Price, or
(ii) canceling this Agreement in which event the Escrow Agent shall return the
Deposit, to Purchaser and the parties shall be released from any further obligations
under this Agreement except for the obligations under Section 5.1 and 5.2 of this
Agreement.
ARTICLE IX
CLOSING
9.1 The closing shall be at 10:00 A.M. Eastern Standard time on or before
Twenty (20) days after the end of the Investigation Period (the "Closing Date"), time
being of the essence, at the offices of Fidelity National Title Group 13800 NW 14th
Street, Suite 190, Sunrise Florida 33323 Attention: Mary E. Cornelius (the "Closing
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Agent") or at such other place as the parties may mutually determine. The Closing
shall be handled through escrow with Closing Agent.
9.2 Seller, at Seller's expense, shall deliver to Closing Agent at closing:
9.2.1 A warranty deed conveying the Land and Improvements, in
recordable form, subject only to the Permitted Exceptions and such other
exceptions waived by Purchaser.
9.2.2 A mechanic's lien, possession and gap affidavit and any other
such affidavits and documents as may be reasonably required by the Title
Company.
9.2.3 An assignment of general intangibles with respect to the
Property conveying all of Seller's right, title and interest in the Licenses and
Permits and the Warranties.
9.2.4 A bill of sale sufficient to convey all right, title and interest of
Seller in the Personal Property.
9.2.5 An assignment of all of Seller's right, title and interest in the
Lease which shall include an assumption of the obligations under the Lease
by Purchaser.
9.2.6 An assignment of all of Seller's right, title and interest in the
Contracts (excluding any employment contracts, management contracts and
brokerage contracts) which shall include an assumption of the obligations
under the Contracts by Purchaser.
9.2.7 A certificate of non -foreign status, pursuant to Section 1455
of the Internal Revenue Code.
9.2.8 A certificate of Seller restating all of the representations and
warranties contained in Section 6.1 of this Agreement and certifying same
are true and correct, or stating how they differ as of the Closing Date.
9.2.9 The original Lease.
9.2.10 The original Contracts.
9.2.11 The original tenant files with respect to the Lease.
9.2.12 The original vendor files with respect to the Contracts.
9.2.13 An original letter executed by Seller addressed to the tenant
under the Lease as described in Section 9.4.10 of this Agreement.
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9.2.14 The original Estoppel letter from the tenant under the Lease.
9.2.15 Termination Agreement, as hereinafter defined, regarding
the Grant Agreement as required by Section 12.4, duly executed by Seller.
9.2.16 Termination of Restrictive Covenant duly executed by Lewis.
9.2.17 Corporate resolution for People's Drug authorizing this
Agreement and the documents to be executed and delivered by People's Drug
pursuant to this Agreement together with a certificate of good standing and
an officer's certificate attaching true and correct copy of the articles of
incorporation and bylaws and all amendments thereto.
9.2.18 Company resolution for Peoples authorizing this Agreement
and the documents to be executed and delivered by Peoples pursuant to this
Agreement together with a certificate of good standing and manager's
certificate attaching true and correct copies of the Certificate of Formation for
Peoples and the operating agreement for Peoples and all amendments
thereto.
9.2.19 Any additional documents reasonably required by the Title
Company to consummate this transaction.
9.3Purchaser, at Purchaser's expense, shall deliver to Closing Agent at
closing:
9.3.1 The amount due Seller on closing under Article III in cash,
by certified or cashier's bank check or by wire transfer of federal funds,
subject to adjustments and prorations required under this Agreement.
9.3.2 An assumption of the obligations under the Lease.
9.3.3 An assumption of the obligations under the Contracts.
9.3.4 The Termination Agreement with respect to the Grant
Agreement duly executed by Purchaser.
9.3.5
Purchaser.
The termination of the Restrictive Covenant duly executed by
9.3.6 Release of the Mortgage, as hereinafter defined, duly
executed by Purchaser.
9.3.7 Any additional documents reasonably required by the Title
Company to consummate this transaction.
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9.4The following items shall be prorated and adjusted as of Midnight of the
day prior to the Closing Date or as otherwise provided herein:
9.4.1 All current rent and prepaid rents shall be prorated and
adjusted as of Midnight of the date prior to the Closing Date, provided,
however, all rents which are delinquent (the "Delinquent Rents") as of the
Closing Date shall not be prorated. Purchaser agrees to use its good faith
efforts, for a reasonable period time after closing, to collect Delinquent Rents
after the Closing Date and any amounts received by Purchaser from any
party owing Delinquent Rents shall first be applied to all Purchaser's costs of
collection incurred, second, to rents and other charges due for the months in
which such payment is received by Purchaser, third, to rents and other
charges attributable to any period after Closing which are past due on the
date of receipt, and then to Delinquent Rents, which amounts, if any, shall be
paid to Seller. Purchaser shall not be obligated to file suit to collect the
Delinquent Rents, if, after good faith effort to collect, it determines, in its sole
discretion, that said suit will either be unsuccessful or any judgment obtained
therefrom will be uncollectible. This provision shall survive closing.
9.4.2 All security and other deposits of the tenant, together with
all interests accrued thereon, if any, as of the date of Closing shall be
transferred and assigned to Purchaser or Purchaser shall receive a credit at
Closing for the amount of said deposits and Purchaser shall indemnify and
hold Seller harmless from any claims for damages by tenant in regard to said
deposits paid to Purchaser.
9.4.3 General real estate taxes for 2023 relating to the Property
and personal property taxes, if any, for 2023 relating to the Personal
Property shall be prorated as of midnight of the day preceding the Closing
Date with due allowance for the maximum discount allowed by law.
Purchaser and Seller agree to readjust the tax prorations when the actual
charges are determined. This provision shall survive closing.
9.4.4 All licenses and permit fees, costs and revenues and other
proratable items shall be prorated as of Midnight of the day preceding the
Closing Date. Seller shall be entitled to the return of all utility deposits and
other deposits with respect to the Property. Telephone, electric, gas, water
charges and sewer charges shall not be adjusted. Seller shall make
arrangements for final bills to be obtained from the applicable utility
companies involved as of the Closing Date and Seller shall be responsible for
all such bills. Purchaser shall be responsible for making arrangements with
all applicable utilities in connection with providing telephone, electric, gas,
water and sewer services from and after the Closing, including without
limitation paying all necessary deposits. Seller and Purchaser shall
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coordinate their actions under this paragraph so that services provided to
tenants are not disrupted.
9.4.5 Certified liens for governmental improvements as of the end
of the Investigation Period, if any, shall be paid in full by Seller and pending
liens for governmental improvements as of the end of the Investigation
Period shall be assumed by Purchaser. "Certified" for this purpose shall be
deemed to mean that the improvement has been substantially completed as
of the end of the Investigation Period.
9.4.6 Seller shall pay the State Documentary Stamps and the
Surtax which is required to be affixed to the Warranty Deed, and the cost to
record any corrective documents. The cost of recording the Warranty Deed,
the cost for the Survey and the cost for the Owner's Title Policy shall be paid
by Purchaser. Each party shall pay one half (1/2) of the charges of Closing
Agent. Each party shall bear the cost of the fees of their own respective
attorneys and other professionals and the cost of their own respective
performance under this Agreement.
9.4.7 All insurance policies with respect to the Property shall be
cancelled on the Closing Date and not prorated.
9.4.8 Seller shall pay all leasing commissions attributable to the
Lease, including with respect to any commissions for extensions or renewals
payable prior to the Closing Date.
9.4.9 Purchaser shall deliver to Seller an original and one copy
each of notice signed by Seller and Purchaser addressed to tenant under the
Lease, notifying such tenant of the acquisition of the Property by Purchaser,
acknowledging that Purchaser has received and is responsible for the
security deposit of said tenant, if appropriate, specifying the exact dollar
amount, and containing appropriate instructions relating to the payment of
future rentals, giving future notices and such other matters as may be
reasonably required by Purchaser.
9.4.10 Seller shall deliver to Purchaser all keys and building plans
in Seller's possession. Possession of the Property shall be given to Purchaser,
subject to the rights of tenants under the Leases, and the Permitted
Exceptions at Closing.
ARTICLE X
FIRE OR OTHER CASUALTY: CONDEMNATION
10.1 Seller agrees to give Purchaser prompt notice of any fire or other
casualty occurring at the Property between the date hereof and the date of the
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Closing provided for hereunder, or of any actual or threatened condemnation of all
or part of the Property, or any appurtenance thereto, or of any actual, proposed or
threatened modification or termination of the current access to or from the
Property.
10.2 If prior to the Closing there shall occur (i) damage to the Property
caused by fire or other casualty which would cost $100,000.00 or more to repair; or
(ii) the taking by condemnation of all or such portion of the Property as would
materially interfere with Purchaser's use and enjoyment thereof; or (iii) the
material modification or termination of the current access to or from the Property or
of sewer or other utility service, then, and in any such event, Purchaser may
terminate this Agreement by written notice given to Seller within thirty (30) days
after Purchaser has received the notice referred to in Section 10.1 hereof, or at the
Closing, whichever is earlier in which event the Deposit shall be delivered to
Purchaser and the parties relieve of all further obligations under this Agreement
except as provided in Section 5.1 and 5.2 which survive. If Purchaser does not elect
to terminate this Agreement, then the Closing shall take place as herein provided
without abatement of the Purchase Price, and there shall be assigned to Purchaser
at the Closing all of Seller's interest in any insurance proceeds or condemnation
awards which may be payable to Seller on account of any such fire, casualty or
condemnation and Purchaser shall receive a credit at Closing in an amount equal to
any such insurance proceeds or condemnation awards paid to Seller prior to Closing
and not expended in repair or replacement of the Property together with a credit in
the amount of the deductible under such policy of insurance.
10.3 If prior to the Closing there shall occur (i) damage to the Property
caused by fire or other casualty which would cost less than $100,000.00 to repair,
which damage is fully insured and for which there shall be business interruption
insurance to cover loss of business therefrom by Purchaser after Closing, or (ii) the
taking by condemnation of a portion of the premises which is not material to the use
or enjoyment thereof; then, and in either such event, Purchaser shall have no right
to terminate this Agreement, but there shall be assigned to Purchaser at the
Closing all interest in any insurance proceeds or condemnation awards which may
be payable to Seller on account of any such fire, casualty or condemnation, and
Purchaser shall receive a credit at Closing in an amount equal to any such
insurance proceeds or condemnation awards paid to Seller prior to Closing and not
expended in repair or replacement of the Property together with a credit in the
amount of the deductible under such policies of insurance, it being the intention of
the parties that, except for ordinary wear and tear, Purchaser shall be entitled to
acquire the Property as of the Closing, in the same condition it is in at the Effective
Date of this Agreement or Purchaser shall be entitled to receive at Closing sufficient
funds from the condemnor, the insures or Seller to restore the Property.
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10.4 Except as otherwise expressly provided in this Article X, all risk of loss
or damage to the Property or any part thereof by fire or any casualty, from the date
hereof until delivery of the deed provided for herein, shall remain on Seller.
ARTICLE XI
STATUS OF THE PROPERTY
11.1 Seller covenants and agrees that from the Effective Date until the
Closing Date, Seller shall continue to maintain the Property, subject to reasonable
wear and tear, in the same manner as such operation is currently being conducted.
Seller shall not be required to make any capital improvements to the Property
during such period except for tenant improvements required under existing Leases.
The parties expressly understand and agree that the general operation of the
Property shall not be changed between the Effective Date and the Closing Date.
11.2 Prior to the end of the Closing Date, Seller covenants and agrees not to
enter into any new Leases or extend the term of any of the existing Leases without
obtaining the consent of Purchaser.
ARTICLE XII
GRANT AGREEMENT
12.1 Pursuant to CRA Resolution CRA-R-14-0075 approved December 29,
2014, Purchaser agreed to make a grant (the "Peoples Drug Grant") to Peoples Drug
in the amount of $1,000,000 to renovate the Property at 360 NW 8th Street. Lewis
and Purchaser entered into that Grant Agreement dated as of December 14, 2015,
(as amended, the "Grant Agreement") with respect to the Peoples Drug Grant.
Pursuant to CRA Resolution CRA-R-18-0021 Purchaser agreed to make a grant to
Lewis in the amount of up to $375,000 to underwrite the increased costs to renovate
the property at 360 N.W. 8th Street (the "Lewis Grant"). Pursuant to CRA
Resolution CRA-R-19-0040 Purchaser agreed to make a grant to Lewis in the
amount not to exceed $50,000 (the "Second Lewis Grant" together with the Peoples
Drug Grant and the Lewis Grant, the "Grant") with respect to the Property.
12.2 In connection with the Grant, Lewis and Purchaser entered into that
Declaration of Restrictive Covenants Running with the Land dated March 9th 2020
and recorded April 8, 2021 in Official Records Book 32437 at Page 4324 of the
Public Records of Miami Dade County, Florida (the "Restrictive Covenant".
12.3 Purchaser made a loan to Lewis in the amount of $88,000.00 evidenced
by a promissory note dated April 21, 2015 (the "Note") which Note was secured by
that Mortgage and Security Agreement for "People's BBQ" dated April 21, 2015 and
recorded May 6, 2015 in Official Records Book 29605, at Page 348 of the Public
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Records of Miami -Dade County, Florida (the "Mortgage") securing the Note. The
current unpaid balance due with respect to the Note and Mortgage as of January
31, 2023 is $183,635.03.
12.4 Purchaser and Seller covenant and agree that simultaneously with the
conveyance of the Property to Purchaser, Seller and Purchaser shall enter into a
termination agreement (the "Termination Agreement") pursuant to which
Purchaser and Seller shall terminate the Grant Agreement and release Seller from
any obligation to repay the Grant. In addition Purchaser shall release the
Mortgage and release Lewis from any liability under the Note. In addition, Lewis
and Purchaser shall terminate the Restrictive Covenant.
ARTICLE XIII
DUTIES OF ESCROW AGENT
The Deposit shall be held by the Escrow Agent, in trust, on the terms
hereinafter set forth:
13.1 If the Closing takes place under this Agreement, the Escrow Agent
shall deliver the Deposit thereon to Seller.
13.2 Subject to the provisions of Section 13.4 below, if the Agreement is
terminated in accordance with the terms hereof or if the Closing does not take place
under this Agreement by reason of the failure of either party to comply with its
obligations hereunder, the Escrow Agent shall deliver the Deposit to the party
entitled thereto in accordance with the provisions of this Agreement.
13.3 It is agreed that the duties of the Escrow Agent are only as herein
specifically provided and purely ministerial in nature, and the Escrow Agent shall
incur no liability whatever except for willful misconduct or gross negligence, as long
as the Escrow Agent has acted in good faith. The Seller and Purchaser each release
the Escrow Agent from any act done or omitted to be done by the Escrow Agent in
good faith in the performance of its duties hereunder.
13.4 The Escrow Agent is acting as stakeholder only with respect to the
Deposit and the cash to close. If there is any valid dispute as to whether the Escrow
Agent is obligated to deliver the Deposit or the cash to close or as to whom the
Deposit or cash to close is to be delivered, the Escrow Agent shall not make any
delivery, but in such event, the Escrow Agent shall hold same until receipt by it of
an authorization in writing, signed by all parties having interest in such dispute,
directing the disposition of same; or in the absence of such authorization, the
Escrow Agent shall hold the Deposit and/or the cash to close until final
determination of the rights of the parties in the appropriate proceedings. If such
written authorization is not given or proceedings for such determination are not
begun within thirty (30) days of the Closing date and diligently continued, the
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Escrow Agent may bring an appropriate action or proceeding to interplead the
Deposit. The Escrow Agent shall be reimbursed for all costs and expenses of such
action or proceeding, including, without limitation, reasonable attorneys' fees and
disbursements, by the party determined not to be entitled to the Deposit and/or the
cash to close. Upon making delivery of the Deposit and/or the cash to close, the
Escrow Agent shall have no further liability unless such delivery constituted willful
misconduct or gross negligence. Seller acknowledges that the Escrow Agent is
counsel to Purchaser and can represent Purchaser hereunder in the event of any
dispute hereunder, concerning the Deposit and/or the cash to close or otherwise, and
Seller waives any right to object to same.
ARTICLE XIV
DEFAULT
14.1 If Purchaser, in breach of provisions of this Agreement, fails to
conclude the transaction described herein, or otherwise fails to comply with any of
the requirements on the part of the Purchaser to be performed hereunder, and
Seller is capable of performing hereunder, Seller may retain the Deposit as agreed
upon and as liquidated damages as the result of such breach by the Purchaser,
whereupon the parties shall be released and relieved of all other and further
obligations or liabilities hereunder except for the liabilities under Sections 5.1 and
5.2. It is agreed by the parties that such amount being paid to Seller is a fair and
reasonable measure of the damages which will be suffered by Seller in the event of
such default, the parties recognizing that Seller will, in such event, have
relinquished potential offers from other parties to purchase the property, the
parties recognizing that such occurrences cannot be subject to the ascertainment of
any exact amount of damages. Said liquidated and agreed upon damages are,
however, bona fide provisions for such and are not a penalty.
14.2 If Seller defaults in the performance of its obligations under this
Agreement, Purchaser may elect to receive the return of the Deposit, , or, in the
alternative, seek specific performance of this Agreement. Purchaser, at Purchaser's
option and in Purchaser's sole discretion, may waive any default by Seller and close
pursuant to this Agreement.
ARTICLE XV
MISCELLANEOUS
15.1 Notices. All notices, consents, approvals, waivers and elections which
any party shall be required or shall desire to make or give under this Agreement
shall be in writing and shall be sufficiently made or given only when hand
delivered, telecopied, or mailed by certified mail, return receipt requested, with
proper postage affixed, addressed:
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As to Seller:
with a copy to:
As to Purchaser:
Gloria B. Lewis
1546 NE Quayside Terrace
Miami, FL 33138
Email:
Kristin Campbell, Esq.
17113 Miramar Parkway
Suite 173
Miramar, FL 33027
Email: kcampbell@the40group.com
Southwest Overtown/Park West
Community Redevelopment Agency
819 NW 2nd Avenue
3rd Floor
Miami, Florida 33136
Attn: James McQueen, Executive Director
Email: JMcQueen@miamigov.com
with copy to: Southwest Overtown/Park West
Community Redevelopment Agency
819 NW 2nd Avenue
3rd Floor
Miami, FL. 33136
Attn: Vincent T. Brown, Esq.
Email: VtBrown@miamigov.com
and with a copy to: Holland & Knight LLP
701 Brickell Avenue
Suite 3300
Miami, FL 33131
Attn: William R. Bloom, Esq.
Email: william.bloom@hklaw.com
As Escrow Agent: Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, FL 33131
Attn: William R. Bloom, Esq.
Email: william.bloom@hklaw.com
or to such other address as any party hereto shall designate by like notice given to
the other parties hereto. Notices, consents, approvals, waivers and elections given
or made as aforesaid shall be deemed to have been given and received when hand
delivered, upon receipt of the telecopy or on the date of receipt or date delivery is
refused if mailed by certified mail, return receipt requested.
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15.2 The validity of this Agreement and all of its terms or provisions, as
well as the rights and duties of the parties hereunder, shall be interpreted and
construed to and in accordance with the laws of the State of Florida. Proper venue
for any litigation involving this Agreement shall be in Miami -Dade County, Florida.
15.3 Time is of the essence with respect to all matters contained herein.
15.4 Except as expressly stated in this Agreement to the contrary, any and
all covenants, warranties and representations made in this Agreement and all of
the terms and provisions contained in this Agreement shall survive the Closing and
delivery and recording of the special warranty deed hereunder.
15.5 The parties hereto agree to execute any and all further instruments
and documents and take all such action as may be reasonably required by either
party to effectuate the terms and provisions of this Agreement and the transactions
contemplated herein.
15.6 This Agreement constitutes the entire agreement of the parties and
the same may not be amended or modified orally. All understandings and
agreements heretofore had between the parties are merged in this Agreement which
alone fully and completely expresses their understanding.
15.7 Wherever used, the singular number shall include the plural and the
plural the singular and the use of any gender shall include the others.
15.8 Failure to insist upon strict compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such terms,
covenants or conditions nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
15.9 In the event that any term or provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid, said
provision shall be given its nearest legal meaning or be construed as deleted as such
authority determines, and the remainder of this Agreement shall be construed to be
in full force and effect.
15.10 The effective date of this Agreement shall be the date when the last of
the Seller and Purchaser shall have executed this Agreement, which date appears
next to their signature (the "Effective Date").
15.11 This Agreement may be executed in counterparts by the parties hereto
and each shall be considered an original insofar as the parties are concerned but
together said counterparts shall comprise only one Agreement.
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15.12 If this Agreement is not executed by Purchaser and Seller on or before
5:00 p.m. on September , 2023, then the offer contained herein shall lapse and be
null and void.
15.13 All terms, covenants and conditions contained herein are and shall be
binding upon in and or to the benefit of the respective parties hereto and those
successors and assigns.
15.14 Radon is a natural 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 had been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your County Public Health
Unit.
15.15 Purchaser and Seller each represent and warrant to the other that no
real estate brokers, salesmen or finders involved in this transaction. If a claim for
brokerage in connection with this transaction is made by any broker, salesman or
finder claiming to have dealt through or on behalf of Purchaser, Purchaser shall
indemnify, defend and hold Seller and its officers, directors, agents and
representatives and any of the brokers (collectively, the "Indemnitees"), harmless
from all liabilities, damages, claims, costs, fees and expenses whatsoever (including
reasonable attorneys' fees and court costs) with respect to said claim for brokerage.
If a claim for brokerage in connection with this transaction is made by any broker,
salesman or finder claiming to have dealt through or on behalf of Seller, Seller shall
indemnify, defend and hold Purchaser and its officers, directors, agents and
representatives and any of the brokers (collectively, the "Indemnitees"), harmless
from all liabilities, damages, claims, costs, fees and expenses whatsoever (including
reasonable attorneys' fees and court costs) with respect to said claim for brokerage.
This provision shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have set their hands and respective
seals to be attached hereto on the day and year first above written.
Signed, sealed and delivered PEOPLES:
in the presence of:
PEOPLE'S STEW & QUE, LLC, a Florida
limited liability company
By:
Print Name: Name:
Title:
Print Name:
Date Executed:
LEWIS:
Gloria B. Lewis
Date Executed:
PEOPLES DRUG:
PEOPLE'S DRUG, INC., a Florida
corporation
By:
Name:
Title:
Date Executed:
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PURCHASER:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body
corporate pursuant to Section 163.356,
Florida Statute
By:
Print Name: James McQueen
Executive Director
By:
Approved as to form
Print Name: William R. Bloom, Esq.
Special Counsel
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RECEIPT
The undersigned Escrow Agent hereby acknowledges receipt of check in the
amount of One Hundred Thousand and No/100 Dollars ($100,000.00) to be held as
the Initial Deposit pursuant to the foregoing Agreement.
Date Executed:
ESCROW AGENT:
HOLLAND & KNIGHT LLP
By:
William R. Bloom
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EXHIBIT "A"
LEGAL DESCRIPTION
Parcel l:
Lot 7, less that portion of Lot 7 beginning 25.22 feet North of the Southeast Corner,
then North Westerly and Westerly and South Westerly by a cure to the left 134.87
feet to the North line of Lot 7, then east 39.64 feet to the North Line of Lot 7 South
124.75 feet to the point of beginning, Block 47 and Lot 8 and the North 1/2 of Lot 9
Block 47, CITY OF MIAMI NORTH, according to the Plat thereof recorded in Plat
Book "B" Page 41 of the Public Records of Miami -Dade County Florida.
Folio Number: 01-0104-070-1060
Physical Address: 350 N.W. 8th Street, Miami, FL
Parcel 2:
East 1/2 of the North 50 feet of Lot 10, Block 47, CITY OF MIAMI NORTH
according to the Plat thereof, as recorded in Plat Book "B" at Page 41, of the Public
Records of Miami -Dade County, Florida.
Folio Number: 01-0104-070-1110
Physical Address: 374 N.W. 8th Street, Miami, FL
Parcel 3:
West 1/2 of North 50 feet and the South 25 feet of the North 1/2 of Lot 10, Block 47,
CITY OF MIAMI NORTH according to the Plat thereof, as recorded in Plat Book
"B" at Page 41, of the Public Records of Miami -Dade County, Florida.
Folio Number: 01-0104-070-
Physical Address: 378 N.W. 8th Street, Miami, FL
[OPEN LEGAL TO BE CONFIRMED]
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EXHIBIT "B"
List of Personal Property
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EXHIBIT "C"
PERMITTED EXCEPTIONS
1. The rights of the tenant under the Lease.
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EXHIBIT "D"
LIST OF ALL CONTRACTS
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