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HomeMy WebLinkAboutReso 2001-342 RESOLUTION NO. 2001-34_'Z A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING THE OPTION AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY, OF APPROXIMATELY 3 ACRES ON WHICH THE TONY ROMA RESTAURANT IS SITUATED, AT 18050 COLLINS AVENUE, IN THE AMOUNT OF $2.4 MILLION WITH AN OPTION DEPOSIT OF $50,000 FORA 120-DAY OPTION, WHICH DEPOSIT SHALL BE APPLIED TO THE PURCHASE PRICE IF THE CITY PROCEEDS TO PURCHASE AND TO BE SACRIFICED IF THE CITY DECLINES TO PROCEED, ATTACHED HERETO AS EXHIBIT "A"; PROVIDING, IN CONCEPT, FOR THE CONSTRUCTION OF A NEW TONY ROMA RESTAURANT SITE, EITHER TO BE INCORPORATED IN THE CITY HALL SITE OR ADJACENT TO THE CITY HALL SITE, ON THE TERMS SET FORTH IN A LETTER AGREEMENT ATTACHED HERETO AS EXHIBIT "B"; PROVIDING THE CITY MANAGER AND THE CITY ATTORNEY AUTHORIZATION TO PROCEED TO NEGOTIATE A LEASE AGREEMENT AND CONTRACT WITH ROMACORP, WHICH LEASE AND CONTRACT WILL BE BROUGHT BEFORE THE COMMISSION FOR FINAL APPROVAL; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Mayor has determined that the property located at 18050 Collins Avenue, also known as the "Tony Roma site" would be appropriate for the City Hall site and has requested the City Manager and City Attorney to negotiate with regard to same; and WHEREAS, a meeting was held with the Romacorp executives and terms were reached with respect to the development of a City Hall in conjunction with their continued operations on the site, which terms are attached as Exhibit "A"; and WHEREAS, the owners ofthe site are willing to accept an option to purchase the property notwithstanding two offers that have been made to them, while we continue to conduct our due diligence with respect to this site; NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Incorporation of Recitals. The recitals set forth hereinabove are hereby incorporated herein by reference. Section 2. Approval of Option Contract. The option agreement, attached hereto as Exhibit "A", for the purchase of property located at 18050 Collins Avenue, also known as the "Tony Roma site," in an amount of$2.4 Million Dollars, with an option to purchase consideration of$50,000 deposit, be, and the same, is hereby approved. The Mayor is hereby authorized to execute the option contract 1 Approval of Option to purchase Tony Roma property Res, attached hereto as Exhibit "A". Section 3. Authorization ofthe Tony Roma Agreement. The Commission hereby approves, in concept, the construction of a Tony Roma restaurant to either be incorporated within the City Hall or to be adjacent to the City Hall based on the terms of the letter agreement, dated June 12,2001, attached as Exhibit "B." Section 4. Authorization to City Manager and City Attorney. The City Manager and City Attorney are hereby authorized to negotiate the terms of a purchase agreement for the above referenced site on the terms set forth herein, and a lease agreement with Romacorp based on the terms set forth in Exhibit "B", with instruction to return to the City Commission for its approval of all contracts relating to this property. Section 4. Effective Date. This Resolution shall become effective upon adoption. ATTEST: ~~~~~~ _ Richard Brown-Marilla, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: ~.. .,7 UA.-2 ---<--.. {~annheisser, City Attorney VOTE: 5-0 Moved by: C ...oVY\J'Y\.\<.<; I Ol\.ft R ~~ Second by: \flee ffiA-1hR~UFFtY1Ml Mayor David Samson Vice Mayor Kauffman Commissioner Iglesias Commissioner Morrow Commissioner Turetsky yes V no yesVno- yesV no- yes~no= yes~no_ 2 Approval of Option to purchase Tony Rorna property Res, Exhibit "A" OPTION AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY This Option Agreement for Purchase and Sale of Real Property (hereinafter the "Agreement"), is made and entered into as of this 21st day of June, 2001, by and between the City of Sunny Isles Beach, a Florida municipal corporation and/or its assigns (the "Buyer") and the Estate of Fred E. Kassner (a/kIa Fred Kassner) (the "Seller"). In consideration of the mutual agreements set forth below, the parties agree as follows: 1. Definitions. The following terms when used in this Agreement shall have the following meaning: 1.1 Buver. City of Sunny Isles Beach. Buyer's mailing address is 17070 Collins Avenue, Suite 250, Sunny Isles Beach, Florida 33160. 1.2 Closing. The delivery of the Deed to Buyer concurrently with the delivery of the Purchase Price to Seller. 1.3 Closing Date. The date of the Closing as determined in accordance with Paragraph 11 below. 1.4 Deed. The Personal Representatives' Deed which conveys the Property from Seller to Buyer. 1.5 Effective Date. The date that this Agreement is executed by the last party to sign it. 1.6 Governmental Authority. Any federal, state, county, municipal, or other governmental department, entity, authority, commission, board, bureau, court, agency or any instrumentality of any of them which has jurisdiction over the Property. 1.7 Governmental Requirement. Any law, enactment, statute, code, ordinance, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, agreement, or other direction or requirement of any Governmental Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued applicable to the Property, or to any appurtenances, structure, use or facility, on or adjacent to, the Property. 1.8 Lessee. Tony Roma's of Sunny Isles, Inc. and its successors or assigns under the Tony Roma Lease. 1.9 Option Acceptance Date. The date upon which the Buyer notifies Seller that Buyer has exercised the option granted by this Agreement in accordance with Paragraph 2.3 below. 1.10 Option Expiration Date. One hundred twenty (120) days after Effective Date, or sooner as described hereinafter. I-M1I413923.3 1.11 Property. That certain real property located in the Sunny Isles Beach, Miami-Dade County, Florida, and more particularly described in Exhibit "A" attached hereto and made a part hereof, together with all improvements, property rights, easements, privileges and appurtenances thereto, except for the interests of Lessee therein. 1.12 Permitted Exceptions. The permitted exceptions to title to the Property conveyed by Seller as listed in Exhibit "B" attached hereto (so long as the Easement listed as Item No. 2 on Exhibit "B" does not impair the use for which the Property is being purchased), including that certain Restaurant Lease Agreement by and between Fred Kassner, Lessor and Tony Roma's of Sunny Isles, Inc., Lessee dated July 20, 1992 (Hereinafter referred to as the "Tony Roma Lease"). 1.13 Purchase Price. The price the Buyer shall pay Seller for the Property as set forth in Paragraph 3 below. 1.14 Seller. Estate of Fred E. Kassner (aJk/a Fred Kassner). Seller's mailing address is 69 Spring Street, Ramsey, New Jersey 07446, attention: Richard H. Cowlan. 1.15 Title Commitment. A title insurance commitment issued by or written on a title insurance company licensed to conduct business in the State of Florida (a "Title Company") agreeing to issue the Title Policy to Buyer upon payment of the Purchase Price and recording of the Deed and execution and/or recording of other closing documents. 1.16 Title Policy. An ALTA Form B Owner's Title Insurance Policy in the amount of the Purchase Price, insuring the Buyer's title to the Property, subject only to the Permitted Exceptions. 2. Grant of Option for Purchase. 2.1 Grant of Option. For good and valuable consideration, Seller hereby grants to Buyer and Buyer hereby accepts from Seller an option to purchase and acquire the Property from Seller on the terms and conditions hereinafter set forth (the "Option") such that the payment of the Purchase Price shall be as set forth in Section 3. 2.2 Option Fee. As consideration for the Option, simultaneously with the delivery by Buyer to Seller of this Agreement executed by Buyer, Buyer shall pay by wire transfer or check the sum of Fifty Thousand Dollars ($50,000.00) (the "Option Fee") to Morgan, Lewis & Bockius, LLP, as escrow agent ("the Escrow Agent"). The Option Fee shall be held and released as set forth in Section 3.3 below. Upon Closing, the Option Fee shall be applied to the Purchase Price as set forth in Section 3. The Option Fee is non-refundable and Seller shall be entitled to receive and retain the full amount of the Option Fee, except that Buyer shall be entitled to receive a refund of the Option Fee if and only if (a) Buyer timely exercises the Option in the manner required under this Agreement and (b) an Option Fee Refund Event (as defined below) occurs. As used herein, an "Option Fee Refund Event" shall mean one or more of the following events: (i) termination of this Agreement pursuant to the provisions of Section 4.2 hereof due to an Environmental Problem not cured by Seller as and when provided therein; (ii) termination of this Agreement pursuant to the provisions of Section 5.2 hereof due to a Title Objection not cured by Seller as and when provided therein; (iii) termination of this Agreement pursuant to the provisions of Section 7.6 hereof due to an incorrect representation and warranty of Seller not cured by Seller as and when provided therein; (iv) termination of this Agreement l,Ml/413923,3 2 pursuant to the provISIOns of Section 9.1 hereof due to an unsatisfied Buyer's Condition Precedent not satisfied by Seller as and when provided therein; (v) termination ofthis Agreement pursuant to the provisions of Section 9.3 hereof due to lack of Probate Court Approval as and when required therein; or (vi) termination of this Agreement pursuant to the provisions of Section 17 hereof due to a taking of the Property as and when provided therein. The provisions of this Section 2.2 shall survive any termination of this Agreement. 2.3 Exercising the Option. In order to exercise the Option, Buyer must deliver on or prior to 5:00 p.m., Eastern Time on the Option Expiration Date (a) a notice to Seller given in accordance with the "Notice" section of this Agreement stating that Buyer has elected to exercise the Option and close in accordance with this Option Agreement (the "Option Notice") and (b) a deposit in the amount of Fifty Thousand Dollars ($50,000.00) (the "Deposit"), which is in addition to the Option Fee, payable by wire transfer or check to the Escrow Agent. The Deposit shall be held and released as set forth in Section 3.3 below. Time is of the essence for Buyer to give the Option Notice and any attempt to exercise the Option after the Option Expiration Date shall be of no force or effect. If Buyer does not exercise the Option on or prior to the Option Expiration Date, then Seller shall be entitled to receive and retain the full amount of the Option Fee and the Option and this Agreement shall terminate and the parties hereto shall be relieved of all further obligations and liability other than those that are expressly stated to survive termination of this Agreement. Seller acknowledges that in order for Buyer to exercise the Option, Buyer must receive (i) approval by the Buyer's City Commission of the exercise of the Option and (ii) two appraisals of the Property in accordance with Chapter 166, Florida Statutes, but neither the failure of Buyer to obtain such approval and/or such appraisals nor the results of such appraisals shall entitle Buyer to receive a refund of all or any portion of the Option Fee, which shall only be refunded under the conditions expressly provided for in this Agreement. Buyer agrees that if it exercises the Option, Buyer shall certify to Seller in the Option Notice that such approval and appraisals have been received by Buyer and shall provide evidence thereof to Seller with the Option Notice. 3. Purchase Price: Deposit and Escrow. 3.1 Purchase Price. The Purchase Price is Two Million Four Hundred Thousand ($2,400,000.00) Dollars, payable by Buyer to Seller as follows: (a) the Option Fee in the amount of $50,000, payable as provided in Section 2.2 above, simultaneously with the delivery to Seller of this Agreement executed by Buyer; (b) the Deposit in the amount of $50,000, payable as provided in Section 2.3 above, simultaneously with the delivery to Seller of the Option Notice; and (c) the balance of the Purchase Price, equal to Two Million Three Hundred Thousand and 00/100 Dollars ($2,300,000.00), payable in Acceptable Funds to Seller at the Closing, subject to adjustments and credits as hereinafter set forth. As used in this Agreement, the term "Acceptable Funds" shall mean a wire transfer of immediately available funds. 3.2 Deposit: Liquidated Damages. Buyer and Seller agree that the damages which Seller would incur should Buyer default in its obligations under this Agreement are not I-Ml/413923.3 3 readily ascertainable by the parties on the date of this Agreement; and that the parties desire to liquidate by agreement the amount of Seller's recovery from Buyer in such event. Both parties understand that the agreed damages may be more or less than the actual damages which Seller may incur on account of Buyer's default. After consideration of all of the foregoing, Buyer and Seller hereby agree that in the event of Buyer's default under this Agreement (provided that Seller is not then in default), Seller shall be entitled to retain the Deposit, together with all interest accrued thereon, as liquidated damages as Seller's sole remedy on account of such default, plus reasonable attorneys' fees and costs of collection should litigation ensue; provided, however, if Buyer fails to deliver the Deposit as required under this Agreement, then Seller's remedies shall be limited to the right to collect the Deposit from Buyer and to retain the Deposit as liquidated damages, plus reasonable attorneys' fees and costs of collection should litigation ensue. 3.3 Escrow. Promptly after Escrow Agent's receipt of the Option Fee, the Option Fee shall be deposited by the Escrow Agent in an interest-bearing account (the "Option Fee Account"). Promptly after Escrow Agent's receipt of the Deposit, the Deposit shall be deposited by the Escrow Agent in a separate interest-bearing account (the "Deposit Account"; together with the Option Fee Account being hereinafter collectively referred to as the "Accounts"). The Accounts shall be at Gibraltar Bank, Citibank, F.S.B., or any other federally insured banking institution selected by the Escrow Agent (the "Bank"). As used herein, the term "Escrow Funds" means the Option Fee and the Deposit, together with all interest which from time to time accrues thereon. The Escrow Agent shall have no liability for the failure of the Bank to return the Escrow Funds when requested or for any other default, action or inaction on the part of the Bank. Buyer and Seller each understand that it takes some time to deposit the Option Fee and the Deposit in the Accounts and some time to withdraw the Escrow Funds from the Accounts in anticipation of the Closing contemplated under this Agreement, and that the Escrow Funds will earn no interest during such times. Seller represents that its correct taxpayer identification number is 22-6774731. Upon request by the Escrow Agent, Buyer and Seller shall each execute a Payer's Request for Taxpayer Identification Number (IRS Form W-9) and shall deliver the same to the Escrow Agent. All interest earned on the Option Fee shall be paid to the party to whom the Option Fee is payable under this Agreement. All interest earned on the Deposit shall be paid to the party to whom the Deposit is payable under this Agreement. Buyer and Seller acknowledge that the Escrow Agent is serving as escrow holder as an accommodation for the parties. The Escrow Agent shall not be liable for any actions or refusal to take any action undertaken in good faith or upon reliance upon documentation which it believes to be genuine. Unless the Escrow Agent has received written authorization from the Buyer to pay the Escrow Funds (or a portion thereof) to the Seller or a closing statement or other written instructions as to the disbursement of the Escrow Funds signed by both Buyer and Seller or a final order of a court of competent jurisdiction directing the disbursement of the Escrow Funds, the Escrow Agent shall send to Seller and Buyer notice of any other proposed disbursement of the Escrow Funds and not disburse such Escrow Funds until ten (10) days after such notice is sent in order to allow for objections to such proposed disbursement. In the event 1-MI/413923,3 4 that the Escrow Agent does not receive a written objection to such proposed disbursement within such ten-day period, the Escrow Agent is hereby authorized to disburse the Escrow Funds as set forth in such notice and upon making such disbursement, the Escrow Agent shall be relieved of all liability with respect to the Escrow Funds so disbursed. In the event of any dispute or any doubt on the part of the Escrow Agent regarding the Escrow Funds (or any portion thereof), the Escrow Agent shall have the right to deposit the Escrow Funds (or any portion thereof) into a court of appropriate jurisdiction and all costs to the Escrow Agent in connection therewith shall be assessed against the Escrow Funds. In such event, the Escrow Agent shall be relieved of all liability with respect to the Escrow Funds so deposited. Seller and Buyer each agree to indemnify and hold the Escrow Agent harmless from and against any loss or liability (including reasonable attorney's fees and disbursements and court and litigation costs) incurred by the Escrow Agent as a result of any dispute regarding the Escrow Funds or in any way arising from the performance of its obligations under this Agreement or otherwise with respect to the Escrow Funds, except for the gross negligence or willful misconduct of the Escrow Agent. The fact that the Escrow Agent is acting as escrow holder under this Agreement shall not in any way prevent it from representing Seller with respect to any litigation arising out of this Agreement or from representing Seller in any other capacity. 4. Inspections. Buyer shall have until the Option Acceptance Date, but no later than the Option Expiration Date (the "Inspection Period") to make any inspections it deems necessary, all at Buyer's sole cost and expense. Buyer may in its sole discretion consider the results of such inspections in deciding whether to exercise the Option, but the neither the results of any such inspections (including, without limitation, any of investigations or determinations specifically mentioned in this Section 4) nor any failure of Buyer to perform or obtain the results of any such inspections shall be a condition to the performance of Buyer's obligations under this Agreement nor entitle Buyer to receive a refund of all or any portion of the Option Fee or the Deposit, unless expressly provided for in this Agreement. 4.1 Services and Compliance. During the Inspection Period, Buyer may determine that the Property has adequate services available and that all federal, state, county and local laws, rules and regulations have been and are currently being complied with relative to the Property. 4.2 Environmental. During the Inspection Period, Buyer shall have access to the Property for purposes of conducting any tests upon the Property, including but not limited to, at its sole cost and expense, obtaining and accepting a satisfactory Phase I Environmental Audit, and engineering and topographical studies, as buyer in its sole discretion deems necessary so long as it does not unduly interfere with Lessee's operations; provided, however, that Buyer may not conduct any Phase II environmental assessment or other invasive tests of the Property without the written consent of Seller in each instance. In the event that any inspections and any review of documents conducted by the Buyer relative to the Property during the Inspection Period prove unsatisfactory to the Buyer, Buyer in its sole discretion, shall be entitled to terminate this Agreement by providing written notice to Seller, or elect to proceed to closing as set forth herein prior to the expiration of the Inspection Period. Notwithstanding anything to the contrary, Buyer shall not be entitled to receive a refund of the Option Fee or any other Escrow I-MI/413923.3 5 Funds as a result of the environmental condition of the Property unless (a) Buyer timely exercises the Option in the manner required under this Agreement, subject to Seller's cure and remediation of any applicable Environmental Problem (as defined below), (b) on or prior to the end of the Inspection Period, Buyer delivers to Seller a notice stating that an Environmental Problem (as defined below) exists, together with a copy of a report prepared by an appropriately licensed independent geologist or engineer which determines that Hazardous Materials are present or are likely to be present on the Property which are required to be remediated under applicable Governmental Requirements and/or that conditions exist on the Property which are in violation of an applicable Governmental Requirement with respect to Hazardous Materials and that cost of completing such remediation and curing any such violations equals or exceeds five percent (5%) of the total Purchase Price (an "Environmental Problem"), and (c) Seller does not cure and remediate such Environmental Problem within ninety (90) days after the end of the Inspection Period and Buyer does not elect to close subject to such Environmental Problem as and when provided below. Time is of the essence for Buyer to notify Seller of any Environmental Problems as and when provided above and in the event Buyer does not do so, it shall have waived any and all objections to the environmental condition of the Property. In the event that Buyer timely notifies Seller of an Environmental Problem in the manner required above, Seller shall within fifteen (15) days thereafter notify Buyer either (i) that Seller has elected to cure and remediate as applicable, such Environmental Problem, in which event Seller shall be entitled to one or more adjournments of the Closing up to ninety (90) days in the aggregate in order to cure and remediate such Environmental Problem or (ii) that Seller has elected to terminate this Agreement, in which event this Agreement shall immediately terminate as provided below. If Seller elects to and does cure and remediate such Environmental Problem, then Seller shall provide written notice and evidence thereof to Buyer on or prior to ninety (90) days after the end of the Inspection Period, in which event the Closing shall occur ten (10) business days thereafter. If Seller elects to, but does not cure and remediate such Environmental Problem on or prior to ninety (90) days after the end of the Inspection Period or at any time prior thereto notifies Buyer that it will no longer attempt to do so, then this Agreement shall terminate five (5) business days thereafter unless Buyer notifies Seller that it has elected to accept the Property subject to the Environmental Problem, in which event the Closing shall occur ten (10) business days after delivery of such notice from Buyer. In the event that this Agreement shall terminate under any of the foregoing provisions of this paragraph, the Option Fee and all other Escrow Funds shall be paid forthwith to Buyer, as Buyer's sole remedy, whereupon this Agreement shall be terminated and the parties hereto shall be relieved of all further obligations and liabilities other than those that expressly survive termination ofthis Agreement. 4.3 Agreement with Lessee. During the Inspection Period, Buyer shall have the right to attempt to secure an acceptable agreement with Lessee for the continued operations of Tony Roma's Restaurant; provided that no such agreement shall take effect unless and until the Closing shall have occurred nor shall any such agreement bind or obligate or purport to bind or obligate Seller in any manner whatsoever. 4.4 Appraisals. Buyer shall have until the end of the Inspection Period to obtain two appraisals for the Property in accordance with Chapter 166, Florida Statutes. Buyer shall be entitled to consider the results of such appraisals in deciding whether to exercise the Option, but neither the results of such appraisals nor any failure of Buyer to obtain such I-MI/413923.3 6 appraisals shall be a condition to the performance of Buyer's obligations under this Agreement nor entitle Buyer to receive a refund of all or any portion of the Option Fee or the Deposit. 4.5 Inspection Procedures and Indemnity. Buyer shall give Seller reasonable advance notice of Buyer's inspections of the Property so that Seller, at its option, may have one of its representatives familiar with the Property accompany Buyer. Buyer agrees that reasonable precautions shall be taken in connection with such inspections so as to avoid any damage to the Property and to minimize any disruption to the parties in possession of the Property. Buyer shall indemnify, protect, defend and hold Seller and its personal representatives harmless from and against any claims, losses, liabilities or damages resulting from such inspections and from and against any mechanic's liens or claims of lien resulting therefrom. Such indemnification shall survive the Closing or earlier termination of this Agreement. 4.6 Seller's Documents. Seller shall make available to Buyer no later than twenty (20) days following the Effective Date of this Agreement, copies of all documents (other than appraisals) which Seller may have in its possession pertaining to the Property including, but not limited to, building plans, architectural plans, building permits, impact fee assessments, notices of special assessments, notices of sewer fees and water fees, unrecorded restrictive covenants, variance application/approvals, special exception application/approvals, engineering plans, unrecorded developer agreements, environmental reports, surveys and prior title insurance policies, title commitments, and title exceptions pertaining thereto, if any. Buyer acknowledges that Seller has informed Buyer that Seller has few, if any, of such documents. 4.7 Confidentiality. Prior to the Closing Date (and at all times if this Agreement shall be terminated for any reason), Buyer shall keep confidential all financial, environmental and other information pertaining to the Property that is not recorded in the public records (including, without limitation, any summaries or descriptions of such information prepared by Buyer or its Representatives) (collectively, the "Confidential Information") and shall not disclose any of such Confidential Information to any person or entity, except that Buyer may disclose the Confidential Information (i) as and to the extent required by applicable law, regulation or legal process and (ii) to Buyer's directors, officers, employees, agents, attorneys and consultants (collectively, the "Representatives") who need to know the Confidential Information for the purpose of evaluating the potential purchase of the Property by Buyer. Buyer agrees that the Confidential Information will be used solely for the purpose of evaluating the potential purchase of the Property by Buyer. In the event that this Agreement shall be terminated for any reason, Buyer shall provide to Seller copies of all reports and studies (including, without limitation, all environmental assessments) prepared by, for or on behalf of Buyer with respect to the Property. Buyer hereby agrees to indemnify and hold Seller and its personal representatives harmless from and against any and all reasonable costs, expenses, liabilities and damages, including, without limitation, reasonable attorneys' fees and disbursements at the trial level and on one or more appeals, incurred by reason of any breach by Buyer of any of its agreements contained in this Section 4.7. 5. Evidence of Title. 5.1 Delivery of Title Commitment. Within twenty (20) calendar days of the Effective Date, and subsequent to receipt of a copy of the prior deed to the Property in Seller's I-MI/413923,3 7 possession more particularly described below in this Paragraph 5.1, Buyer shall obtain a Title Commitment, at Buyer's cost, and shall deliver a copy of the Title Commitment to Seller's attorney within three (3) days of receipt. Within five (5) business days of execution of this Agreement by Seller, Seller shall be obligated to provide to Buyer a copy of the deed in its possession that conveyed title to the subject real property to Seller. 5.2 Marketable Title. Seller shall convey marketable title to the Property, subject to the Permitted Exceptions. Marketable Title shall be determined according to the Title Standards adopted by authority of The Florida Bar and in accordance with law. Buyer shall have ten (10) days from the date of receiving the Title Commitment to examine same. If title is found to have defects which render title unmarketable, Buyer shall notify Seller in writing within such ten-day period of any such title defects which are objectionable to Buyer (the "Title Objections"). Time is of the essence for Buyer to notify Seller of any Title Objections and .Buyer's failure to include any such title defect in such a timely notice shall constitute a waiver by Buyer of its right to object to such defect, which shall thereafter be deemed a Permitted Exception for all purposes hereunder. The Buyer's notice of Title Objections shall include a statement of how the defects should be cured. Seller have until the Closing Date to remove all Title Objections. If any Title Objections are not removed on or prior to the Closing Date, Buyer shall have the option of either accepting title in its existing condition without any reduction of the Purchase Price, or of terminating this Agreement by delivering to Seller a written notice of termination at the Closing. Upon such a termination of this Agreement, neither Buyer nor Seller shall have further rights or obligations hereunder except for those that expressly survive termination of this Agreement except that the Escrow Funds shall be refunded to Buyer under these circumstances, provided that Buyer had timely exercised the Option in the manner required under this Agreement. Seller agrees that if title is found to be unmarketable, Seller will use diligent efforts to correct all Title Objections that are timely objected to by Buyer, within the time provided therefore, and subject to the limitations that Seller shall not be required to bring any action or proceeding or to incur any expense in excess of five percent (5%) of the Purchase Price in the aggregate to cure any such Title Objections. 6. Survev. Within time period set forth in Section 5.1 to obtain a Title Commitment, Buyer may obtain at its expense a survey (the "Survey") of the Property showing all improvements thereon prepared by a land surveyor or engineer registered and licensed in the State of Florida. The Survey shall show the legal description of the Property to be the same as Exhibit "A" attached hereto. The Buyer may require any reasonable revision to the legal description ,but Seller shall not be required to convey any lands other than the legal description of the Property set forth on Exhibit "A" attached hereto. Any objections must be delivered to Seller's attorney within thirty (30) after the Effective Date. Upon such proper and timely notification, all such objections to matters shown on the Survey which render title unmarketable shall be treated as Title Objections in accordance with Section 5.2 hereof. Buyer's failure to include any such matter in such a timely notice shall constitute a waiver by Buyer of its right to object to all matters which an accurate, current survey of the Property would reveal, which shall thereafter be deemed Permitted Exceptions for all purposes hereunder 7. Seller's Representations. Seller hereby represents and warrants to Buyer as of the Effective Date and as of the Closing Date as follows: I-MI/413923,3 8 7.1 Seller's Authority. Seller has legal right and ability to sell the Property pursuant to this Agreement. The execution and delivery of this Agreement by Seller and the consummation by Seller of the transaction contemplated by this Agreement is within Seller's capacity and all requisite action has been taken to make this Agreement valid and binding on Seller in accordance with its terms. The foregoing representations are subject to an exception for Probate Court approval as provided for in Section 9.3 hereof. 7.2 No Legal Bar. The execution by Seller of this Agreement and the consummation by Seller of the transaction hereby contemplated does not, and on the Closing Date will not, result in a breach of, or default under, any indenture, agreement, lease, instrument, obligation or the agreement of limited partnership, limited partnership certificate or related instruments affecting the Seller, to which Seller is a party and which affects all or any portion of the Property, or to Seller's knowledge, constitutes a violation of any Governmental Requirement. 7.3 No Default. To the actual knowledge of the personal representatives of Seller, Seller is not in default under an indenture, mortgage, deed of trust, loan agreement, lease or other agreement to which Seller is a party and which affects any portion of the Property. 7.4 Hazardous Materials. Seller's personal representatives have no actual knowledge nor has they received any written notice that there has been any discharge of hazardous material at the Property. As used herein, the term "Hazardous Material" shall mean any substance, water or material which has been determined by state, federal or local government authority to be capable of posing a risk of injury to health, safety and property, including but not limited to, all of those materials, wastes and substances designated as hazardous or toxic by the U.S. Environmental Protection Agency, the U.S. Department of Labor, the U.S. Department of Transportation, and/or any other state or local governmental agency now or hereafter authorized to regulate materials or substances in the environmental (collectively "Governmental Authority(ies)"). Buyer must rely on its Environmental reports and assessments, as Seller is not aware ofProperty's environmental condition. 7.5 Litigation and Parties in Possession. To the actual knowledge of the personal representatives of Seller, there are no actions, suits, proceedings or investigations pending or, to the knowledge of Seller, threatened against Seller or the Property affecting any portion of the Property. The only party in possession other than Seller is the Lessee as described above and under the terms and conditions of the Tony Roma's Lease set forth above. 7.6 Buyer's Remedies for Seller's Misrepresentations. In the event that Buyer becomes aware prior to Closing that any of Seller's warranties or representations set forth in this Agreement are not true in any material respect on the Effective Date or any time thereafter but prior to Closing, and in the event Seller is unable to render any such representation or warranty true and correct in all material respects as of the later of (i) Closing Date and (ii) ten (10) days after Buyer delivers to Seller written notice of such alleged incorrect representation or warranty, Buyer may either: (a) terminate this Agreement by written notice thereof to Seller, in which event the parties will be relieved of all further obligations hereunder, except for those that expressly survive termination of this Agreement, and Buyer shall receive a refund of the Option Deposit, provided that Buyer had timely exercised the Option in the manner required under this Agreement; or (b) elect to close under this Agreement notwithstanding the failure of such 1-MI/413923.3 9 representation and warranty, in which event the Closing shall be deemed a waiver by Buyer of the failure of such representation and warranty. 8. Buyer's Representations. The Buyer hereby represents and warrants to the Seller as of the Effective Date and as of the Closing Date that Buyer has full and complete authority to enter into this Agreement and to pay the Option Fee on the terms and conditions set forth in this Agreement and, subject to compliance with Chapter 166, Florida Statutes, the City of Sunny Isles Beach and Code of Ordinances, to purchase the Property and to comply with the other terms of this Agreement, and the execution and delivery of this Agreement by Buyer and consummation by Buyer of the transaction hereby contemplated are within Buyer's capacity and all requisite action has been taken to make this Agreement valid and binding on Buyer in accordance with its terms. 9. Conditions Precedent to Closing. 9.1 Conditions to Buyer's Obligations. Each of the following events or occurrences (the "Buyer's Conditions Precedent") shall be a Condition Precedent to Buyer's obligation to close this transaction. If the Buyer's Conditions Precedent have not been satisfied on or before the Closing Date (as the same may be adjourned pursuant to this Agreement), Seller shall have ten (10) days after Buyer delivers to Seller written notice of such unsatisfied Buyer's Condition Precedent within which to satisfy the unsatisfactory condition and should Seller not have done so within said 10-day period, Buyer shall have the right to either (i) terminate this Agreement by giving notice thereof to Seller, whereupon Buyer and Seller shall be relieved of all further obligations under this Agreement, except for those that expressly survive termination of this Agreement; or (ii) waive the condition and close. (a) Representations. The representations and warranties made by Seller in this Agreement shall be true and correct in all material respects on the Closing Date subject to the 10-day extension provided in Section 9.1 above. (b) Seller's Obligations. Seller shall have performed in all material respects all covenants, agreements, and obligations and complied in all material respects with all conditions required by this Agreement to be performed or complied with by Seller prior to Closing Date (as the same may be adjourned pursuant to this Agreement) subject to the 10-day extension provided in Section 9.1 above. (c) Possession. The Property shall be free and clear of any persons, tenants, or improvements of any kind on the Closing Date, except for Lessee as set forth herein and for the improvements existing on the Effective Date or subsequently constructed pursuant to the Lease subj ect to the 10-day extension provided in Section 9.1 above. 9.2 Conditions to Seller's Obligations. Each of the following events or occurrences (the "Seller's Conditions Precedent") shall be a Condition Precedent to Seller's obligation to close this transaction. If the Seller's Conditions Precedent have not been satisfied on or before the Closing Date (as the same may be adjourned pursuant to this Agreement), Buyer shall have ten (10) days after Seller delivers to Buyer written notice of such unsatisfied Seller's Condition Precedent within which to satisfy the unsatisfactory condition and should Buyer not 1-M1I413923.3 10 have done so within said 10-day period, Seller shall have the right to either (i) exercise any and all remedies available under this Agreement or at law or in equity, including terminating this Agreement and receiving and retaining all Escrow Funds, whereupon Buyer and Seller shall be relieved of all further obligations under this Agreement, except for those that expressly survive termination of this Agreement; or (ii) waive the condition and close: (a) Representations. The representations and warranties made by Buyer in this Agreement shall be true and correct in all material respects on the Closing Date subject to the 10-day extension provided in Section 9.2 above. (b) Buyer's Obligations. Buyer shall have performed in all material respects all covenants, agreements, and obligations and complied in all material respects with all conditions required by this Agreement to be performed or complied with by Buyer on or prior to Closing Date (as the same may be adjourned pursuant to this Agreement) subject to the lO-day extension provided in Section 9.2 above. 9.3 Contingency for Probate Court Approvals. This Agreement is subject to, and the Closing is contingent upon, any approval of this Agreement required to be obtained from the court(s) in which the estate of the Seller is being probated or subject to probate (the "Probate Court"). Seller agrees that promptly after execution of this Agreement, Seller, at its expense, shall request the Probate Court to approve this Agreement, and shall make a good faith effort to obtain such approval. Buyer agrees that, as, when and if requested by Seller, Buyer, at its expense, shall cooperate with Seller in order to obtain such approval. Seller agrees to provide to Buyer, at Buyer's expense, such information as Buyer may reasonably request in writing regarding the Probate Court proceedings that are undertaken to obtain such approval and to notify Buyer promptly after such approval has been obtained. If the Probate Court denies such approval, then this Agreement shall automatically terminate upon such denial. Notwithstanding anything to the contrary, if the Probate Court has neither approved this Agreement nor rejected Seller's request for such approval on or prior to the one hundred and twentieth (120th) day after the Effective Date of this Agreement, then Buyer may notify Seller that this Agreement will be terminated if such approval is not received within ten (10) days after such notice is received. In the event that such a notice is sent and such approval is not received on or prior to such tenth (10th) day, then this Agreement shall automatically terminate on the eleventh (11th) day after such notice has been received. In any event, this Agreement shall automatically terminate on the one hundred and eighty-first (181 st) day after the date of this Agreement if the Probate Court has neither approved this Agreement nor rejected Seller's request for such approval on or prior to the one hundred and eightieth (180th) day after the date ofthis Agreement. Upon any termination of this Agreement pursuant to this Section 9.3, the Escrow Funds shall be paid forthwith to Buyer provided that Buyer had timely exercised the Option in the manner required under this Agreement, and the parties hereto shall be relieved of all further obligations and liabilities under this Agreement other than those that expressly survive termination of this Agreement. 10. Condition of the Property. 10.1 "AS IS" Sale. As provided in Section 4 above, Buyer will have during the Inspection Period, the opportunity to investigate such matters pertaining to the Property and to inspect the Property to the extent that Buyer deems necessary. Accordingly, if Buyer exercises 1-MI/413923.3 11 the Option, Buyer shall accept the Property in its "AS IS" condition on the Closing Date, "with all faults" and specifically and expressly without any reduction in the Purchase Price for any change in such condition for any reason subsequent to the date of this Agreement. Without limiting the generality of the foregoing, no destruction, damage or casualty to the Property or any part thereof shall in any way impair this Agreement nor relieve Buyer of its obligation to consummate this transaction. If, prior to the Closing, any part of the Property is damaged or destroyed, then, if Buyer exercises or has exercised the Option, at the Closing, Seller shall assign to Buyer all of Seller's rights to any and all insurance proceeds payable for such casualty and shall pay to Buyer any and all such insurance proceeds theretofore paid to Seller by reason thereof and Buyer shall purchase the Property for the full Purchase Price pursuant to this Agreement. 10.2 No Implied or Unwritten Representations. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 OF THIS AGREEMENT, SELLER HAS NOT, DOES NOT AND WILL NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE PROPERTY, WHETHER EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION, MERCHANT ABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR WITH RESPECT TO THE V ALUE, PROFITABILITY, MARKETABILITY OR ACREAGE OF THE PROPERTY. In entering into this Agreement, Buyer has not been induced by and has not relied upon any such representations, warranties or statements, whether express or implied, written or oral, made by Seller or any agent, employee or other representative of Seller or by any broker or any other person representing or purporting to represent Seller. The provisions of this section 10.2 shall survive Closing and any earlier termination of this Agreement. 11. Closing. The Closing shall occur at a mutually agreed time on or before fifteen (15) days from Option Acceptance Date and shall take place at the office of the Buyer's attorney. 12. Seller's Closing Documents. At closing, Seller shall deliver the following documents ("Seller's Closing Documents") to Buyer: 12.1 Personal Representatives' Deed. The Personal Representatives' Deed shall be duly executed and acknowledged by Seller so as to convey to Buyer good and marketable fee simple title to the Property free and clear of all liens, encumbrances and other conditions of title arising by, through or under the personal representatives of Seller's estate, other than the Permitted Exceptions and exceptions not duly objected to by Buyer. 12.2 Mechanic's Lien Affidavit. A mechanic's lien affidavit in the customary form, attesting that to the knowledge of Seller, (a) no individual, entity or Governmental Authority has any claim against the Property under the applicable mechanic's lien law, (b) no individual, entity or Governmental Authority is either in possession of the Property or has a promissory interest or claim in the Property (except Lessee and Buyer), and (c) no improvements to the Property have been made for which payment has not been made. 1-MI/413923.3 12 12.3 Gap Affidavit. An affidavit in form and content reasonably satisfactory to the Title Company to facilitate the insuring of the "gap", i.e., the deleting as an exception to the Title Commitment any matters appearing between the effective date of the Title Commitment and the effective date of the Title Policy. 12.4 FIRPTA. A FIRPTA Non-Foreign Entity Transfer Certificate or Exemption Certificate or document evidencing withholding, in accordance with Section 1445 of the Internal Revenue Code. 12.5 DR-219. DR-219 as required for recording. 12.6 Assignment and Assumption Agreement. Two (2) counterparts executed by Seller of an assignment and assumption agreement with respect to the Tony Roma's Lease (the "Assignment and Assumption Agreement"), wherein (i) Seller assigns the Tony Roma's Lease to Buyer and agrees to indemnify and hold harmless Buyer and its officers, directors, employees, agents, successors and assigns from all claims, damages, losses, liabilities, costs and expenses, including reasonable attorneys' fees and disbursements, arising out of Seller's failure to perform or comply with any and all obligations of Seller under the Tony Roma's Lease that arose prior to the Closing Date and (ii) Buyer agrees to assume all obligations of Seller that arise under the Tony Roma's Lease on and after the Closing Date and to indemnify and hold harmless Seller and its personal representatives, executors, heirs, beneficiaries, employees, agents, successors and assigns from all claims, damages, losses, liabilities, costs and expenses, including reasonable attorneys' fees and disbursements, arising out of Buyer's failure to perform or comply on or after the Closing Date with any such obligations under the Tony Roma's Lease. 12.7 Closing: Statement. At least four (4) counterparts of a closing statement for this transaction, executed by Seller. 13. Buyer's Closing Documents. At closing, Buyer shall deliver the following documents (Buyer's Closing Documents) to Seller; 13.1 City Commission Approval. A certified copy of the Resolution, Minutes or Agenda Actions of the pertinent meeting of the Commission Council showing that Buyer has been authorized to enter into and execute this Agreement and consummate the transaction herein contemplated. 13.2 Appraisals. Any and all appraisals required under Chapter 166 of the Florida Statutes. 13.3 Assignment and Assumption Agreement. Two (2) counterparts executed by Buyer of the Assignment and Assumption Agreement. 13.4 Closing Statement. At least four (4) counterparts of a closing statement for this transaction, executed by Buyer. 14. Closing Procedure. The Closing shall proceed in the following manner: I-Ml/413923.3 13 14.1 Transfer of Funds. Buyer shall pay the Purchase Price to the Seller by wire transfer to the account of Seller. 14.2 Delivery of Documents. Seller shall deliver Seller's Closing Documents to the Buyer upon receipt of the Purchase Price. Simultaneously, Buyer shall deliver the Buyer's Closing Documents to Seller. The foregoing may be accomplished by a mutually acceptable escrow arrangement. 15. Closing Costs. Taxes. Prorations and Impact Fees. 15.1 Ad Valorem Taxes. Seller shall comply with Section 196.295, Florida Statutes, with respect to the payment of prorated and ad valorem taxes for the year of closing into escrow with the Miami-Dade County Revenue Collector. 15.2 Seller's Closing Costs. Seller shall pay for the following items prior to or at the time of Closing: Cost of providing marketable title as provided herein; documentary stamps on the Personal Representatives' Deed and any all surtax imposed by Dade County with respect to the Personal Representatives' Deed. 15.3 Buyer's Closing Costs. Buyer shall pay for the following items prior to or at the time of Closing: Recording of Deed; title insurance premium and title search and examination costs; survey costs, appraisal costs, costs of the Phase I Environmental Assessment Report and other inspections performed pursuant to this Agreement and related expenses and all costs and expenses of any financing of Buyer's acquisition of the Property contemplated hereby 15.4 Proration of Rent and Other Lease Payments. All rent and other payments to be made to Seller by Lessee under the Tony Roma's Lease shall be apportioned and adjusted between Seller and Buyer at the Closing as of 11 :59 P.M. of the day preceding the Closing Date (the "Adjustment Date"), including, without limitation, the percentage rent payments and payment of real estate taxes provided for in the Tony Roma's Lease. All such amounts which have accrued but are unpaid to Seller as of the Adjustment Date shall be paid by Buyer to Seller at Closing and Buyer shall thereafter have the exclusive right to receive such payments from Lessee. The procedures set forth below shall govern the apportionments to be made under this Agreement. If the amount of any payment payable under the Tony Roma's Lease (including, without limitation, percentage rent and real estate taxes has not been determined prior to the Closing Date, such payment shall be apportioned based on the amount of such payment due during the previous payment period (i.e, month or year, as the case may be) for such payment. Such apportionments shall be adjusted after the Closing based on the actual amounts due, when determined, and at such time Buyer shall furnish Seller with statements in reasonable detail showing the calculation of such apportionments, rents and payments. The provisions of this Section 15.4 shall survive the Closing. 1-Ml/413923,3 14 16. Possession. Buyer shall be granted full possession of the Property at Closing, subject to the Tony Roma's Lease. 17. Condemnation. In the event of the institution of any proceeding by any Governmental Authority (other than Buyer, which hereby agrees not to institute such a proceeding) for the proposed taking of any material portion of the Property by eminent domain prior to Closing, or in the event of the taking of any material portion of the Property by eminent domain prior to Closing, Seller shall promptly notify Buyer and Buyer shall thereafter within fifteen (15) days after receipt by Buyer of the notice from Seller either (1) terminate this Agreement, whereupon Seller and Buyer shall be released of all further responsibility and obligations hereunder other than those that expressly survive termination of this Agreement; or (2) proceed to close this transaction. Seller hereby agrees to furnish Buyer with written notice of a proposed condemnation within five (5) business days after Seller's receipt of notification. Should buyer terminate this Agreement, the parties hereto shall be released from their respective obligations and liability hereunder other than those that expressly survive termination of this Agreement and Buyer shall receive a return of the Escrow Funds provided that Buyer had timely exercised the Option in the manner required under this Agreement. Should Buyer elect not to terminate, the parties hereto shall proceed to Closing and Seller shall assign all of its rights, title and interest in all awards in connection with such taking to Buyer. 18. Notice. Notices shall be in writing delivered by hand, or by certified mail, return receipt requested, or overnight delivery by nationally recognized service, to the addressee at the address set forth herein, and shall be deemed to have been delivered on the date of receipt of such notice, if hand-delivered, or, if mailed, on the date the receipt for which the certified mail is signed or refused, by the addressee or its unauthorized agent or employee, or if by an overnight nationally recognized delivery service, on the business day immediately following delivery to such delivery service;. Either party may change the address for notice to that party by delivering written notice of such change in the manner provided above, such change to be effective not sooner than ten (10) days after the date of notice of change. If either party relies upon a hand delivery as described herein, then the party using this median shall maintain an appropriate receipt of delivery, in the normal course of business. BUYER: The City of Sunny Isles Beach 17070 Collins Avenue, Suite 250 Sunny Isles Beach, Florida 33160 Attention: Christopher J. Russo, City Manager and Lynn M. Dannheisser, City Attorney With a copy to: Harold M. Rifas, P.A. 7900 Red Road South Miami, Fl 33143 SELLER: Estate of Fred Kassner 69 Spring Street Ramsey, New Jersey 07446 I-MJ/413923,3 15 Attention: Richard H. Cowlan With a copy to: Morgan, Lewis & Bockius LLP 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, FL 33131-2339 Attention: Robert W. Murray, Esq. 19. Miscellaneous. 19.1 Counterparts. This Agreement may be executed in any number of counterparts, anyone and all of which shall constitute the contract of the parties. The paragraph headings herein contained are for the purposes of identification only and shall not be considered in construing this Agreement. 19.2 Amendment. No modification, amendment or waiver of this Agreement or any provision hereof (including, without limitation, this sentence) shall be of any force or effect unless in writing executed by both Seller and Buyer. 19.3 Attorney's Fees. In connection with any action ansmg from or in connection with this Agreement, the prevailing party shall be entitled to an award of its costs and expenses, including reasonable attorneys' fees and disbursements, incurred or paid before and at trial or any other proceeding which may be instituted, at any tribunal level. 19.4 Governing Law. This Agreement shall be interpreted in accordance with the laws of the State of Florida, both substantive and remedial. 19.5 Entire Agreement. This Agreement sets forth the entire agreement between Seller and Buyer relating to the Property and all subject matter herein and supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. 19.6 Computation of Dates. If any date computed in the manner herein set forth falls on a legal holiday or non-business day or non-banking day, then such date shall be extended to the first business day following said legal holiday or non-business day or non- banking day. 19.7 Time is of the Essence. Time is of the essence and failure of the Buyer to exercise the option granted hereby on or before the Option Expiration Date shall cause this Agreement to terminate and be of no further force or effect, except for those provisions that are expressly stated to survive termination of this Agreement.. The provisions herein contained shall be strictly construed for the reason that both parties intend that all time periods provided for in this Agreement shall be strictly adhered to. 19.8 No Recording. This Agreement or any notice or memorandum hereof may not be recorded in the public records of any county in the State of Florida. I-M1/413923,3 16 19.9 No Brokers. Seller and Buyer each represent to the other that it has not dealt with any broker, salesperson or agent in connection with the execution and delivery of this Agreement, and the other party shall not be required to pay any commission whatsoever with respect to this Agreement resulting from the actions of the party making such representations. Seller and Buyer each indemnify and hold each other harmless from and against any and all claims, losses, costs, damages, liabilities and expenses (including without limitation, reasonable attorneys' and paralegal fees) resulting from a breach by the indemnifying party of the foregoing representation. Notwithstanding any of the foregoing to the contrary, Buyer acknowledges that Seller has informed Buyer that George Newman of The Keyes Company contacted Seller purporting to represent Buyer and Buyer agrees that it shall indemnify and hold Seller and Seller's personal representatives harmless from and against any and all claims, losses, costs, damages, liabilities and expenses (including without limitation, reasonable attorneys' and paralegal fees) arising from any claim by George Newman or The Keyes Company for a brokerage commission, fee or other compensation with respect to the transaction provided for in this Agreement. 19.10 Acceptance of Deed. The acceptance of the Deed to Buyer shall be deemed full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Agreement, except those which are specifically stated to survive delivery of the Deed and closing. 19.11 Interpretation. Should any term or provision of this Agreement be subject to judicial interpretation, it is agreed by Seller and Buyer that the court interpreting or construing the same shall not apply a presumption that the term or provision shall be more strictly construed against the party who itself or through its agents and attorneys of each party have participated in the preparation of the terms and provisions of this Agreement and that all terms and provisions have been negotiated. 19.12 Caption. Headings. Etc. Captions, heading, section and subsection numbers in this Agreement are for convenience and reference only, and shall have no effect upon the meaning of any of the terms or provision herein. 19.13 Waiver. Failure of either party to insist upon compliance with any term or provision hereof shall not constitute a waiver thereof, and no waiver of any term or provision of this Agreement shall be effective unless it is in writing and signed by the party against whom it is asserted. Any waiver of any term or provision of this Agreement shall only be applicable to the specific term or provision and instance to which it is related, and shall not be deemed to be a continuing or future waiver as to such term or provision or as to any other term or provision. 1-MJ/413923,3 17 19.14 No Third Party Beneficiary. The terms and provisions of this Agreement are for the exclusive benefit of Seller and Buyer, and not for the benefit of any third party, and this Agreement shall not be deemed to have conferred any rights, expressed or implied, upon any third party. 19.15 Assignment. No assignment by Buyer of this Agreement or any of its rights hereunder shall release Buyer from any of its obligations or liabilities hereunder. 19.16 Radon Disclosure. Buyer is hereby advised that 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 public health unit. The foregoing disclosure is provided to comply with state law and is for informational purposes only. {Signatures on Following Page} I,MII413923.3 18 IN WITNESS WHEREOF, the parties have executed this Option Agreement for Purchase and Sale of Real Property as of the respective dates indicated below. WITNESSES: SELLER: (~, r~5~~~M~\ft~ff1J(- ~ f" "lTW".....t' 't"k. ,., 4:f y-/1""Uc:",vJll.y ESTATE OF FRED E. KASSNER (a/k/a Fred Kassner) BY: ,\n~\~ Michelle Kassner, as Co-Ancillary Personal Representative Date Executed: t II,. ) 10 I ..1 1 77(,-'-1/1:1 ::lfs_ .1.1:<'.. ""Tic.. ;:'/" r Nvl'f'(,. : ~-"~'-- BY: lE'.L/t~ '/;~;{Li. ,t-- Ellen Teitelbaum, as Co-Ancillary Personal Representative ~\ \ b:~ " tlt>"... ':::JC()(J I 'l ~(ftJ I Date Executed: (. ! 2 f.. '- / C I BUYER: ATTEST: 'JC~~~ RICHARD BROWN-MORILLA CITY CLERK APPROVED AS TO LEGAL FORM AND SUFFICIENCY Date Executed: ~ ~2/ 0 I ~~~~ L M. DANNHEISSER CITY ATTORNEY Dated: Jo #/ f 1-MI/413923,3 19 EXHIBIT" A" Legal Description of the Propertv A portion of Parcel 1, Replat of Tract "A", SUNNY ISLES SHORES, Section "A", according to the Plat thereof recorded in Plat Book 64, at Page 74 of the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Commence at the NE corner of Parcel 1 ofReplat of Tract "A", SUNNY ISLES SHORES, Section "A", Plat Book 64, at Page 74 ofthe Public Records of Miami-Dade County, Florida; thence run S 6 degrees 06 minutes 20 seconds W along the East line of the said Parcel 1 for a distance of250.00 feet to the Point of Beginning of the tract ofland herein described; thence continue S 6 degrees 06 minutes 20 seconds W along the said East line of Parcel 1 for a distance of299.145 feet; thence run due West along a line parallel with and 200.00 feet Northerly ofthe Southerly line of said Parcel 1 as measured along the East line of said Parcell, for a distance of 250.00 feet; thence run N 6 degrees 06 minutes 20 seconds E along a line parallel to said East line of Parcel 1 for a distance of60.00 feet; thence run due West along a line parallel with and 260.00 feet Northerly of the South line of said Parcell, as measured along the said East line of Parcell for a distance of200.00 feet to a point on the West line of said Parcell; thence N 6 degrees 06 minutes 20 seconds E along said West line of Parcel 1 for a distance of239.145 feet; thence run due East for a distance of 450.00 feet to the Point of Beginning. l,MI/413923.3 1 EXHIBIT "B" Permitted Exceptions 1. Covenants, conditions, easements and restrictions as set out on the Replat of Tract "A" SUNNY ISLES SHORES SECTION "A" recorded in Plat Book 64 at Page 74 of the Public Records of Miami-Dade County, Florida, being a Replat of Tract "A" Sunny Isles Shores Section A, recorded in Plat Book 53 at Page 95 ofthe Public Records of Miami- Dade County, Florida. 2. Easement Agreement between Robert E. Hannegan, Jr. and Patricia K. Hannegan, his wife, William V. Bidwell and Nancy L. Bidwell, his wife and Pan Associates, Inc., filed December 10, 1975 under Clerk's File No. 75R-255291 in Official Records Book 9175, at Page 50 of the Public Records of Miami-Dade County, Florida. 3. Agreement by 18050 Collins Avenue, Inc. and L. Grant Peeples filed November 6, 1981 under Clerk's File No. 81R-287322 in Official Records Book 11262 at Page 589 ofthe Public Records of Miami-Dade County, Florida. 4. Restaurant Lease Agreement by and between Fred Kassner, Lessor and Tony Roma's of Sunny Isles, Inc., Lessee dated July 20, 1992 5. Taxes for the year 2001 and subsequent years. 6. Zoning and other governmental prohibitions or restrictions applicable to the Property. 7. Matters appearing on the Plat or otherwise common to the subdivision. 8. Outstanding oil, gas and mineral rights of record without right of entry. 9. Public utility easements of record located contiguous to the boundary lines of the Property and not more than 10 feet in width as to the rear or front lines and 7Yz feet in width as to the side lines. 1-MI/413923.3 DAVID SAMSON MAYOR LILA KAUFFMAN VICE MAYOR DANNY IGLESIAS COMMISSIONER CONNIE MORROW COMMISSIONER IRVING TURETSKY COMMISSIONER Christopher J. Russo City Manager Lynn M, Dannheisser City Attorney Richard Brown,Morilla City Clerk 17070 Collin enue Suite 250 Sunny Isles Beach, FL -: ') TEL: 305 947 Ob06 FAX: 305 949 3113 June 12,2001 Mr. Richard A. Peabody Vice President Finance and Chief Financial Officer Romacorp, Inc. 9304 Forest Lane, Suite 200 Dallas, TX 75243 RE: Tonv Roma Restaurant DrODertv at 18050 Collins Avenue ("Roma site") Dear Mr. Peabody: This will outline our conversations today relative to the above-referenced property. We have agreed upon the following terms and conditions, which we will submit, in further detail, at a later date: 1. The Roma site consisting of approximately 10,000 square feet shall remain intact until sllch time as a new structure for Romacorp is built and the Tony Roma's restaurant will continue to operate until that time. The Lease shall be assigned to the City by the current lessor upon transfer of the property. 2. The parties contemplate a new lease agreement for the new site that will provide for a twenty (20)-year lease term with two (2) five-year renewals to become effective on delivery of that site by the City (the "new Lease"). The rent amount contained in the new Lease rent for those premises, on an annual basis, shall be eight percent (8%) of the gross receipts as defined in the current Tony Roma lease agreement by and between Fred Kassner, Lessor and Tony Roma's of Sunny Isles, Lessee dated July 20, 1992 with a minimum guarantee of TWO HUNDRED FORTY THOUSAND AND NO/lOO DOLLARS ($240,000) annual lease rate. The new Lease will be a "net lease" such that Romacorp shall be responsible for all property taxes (if, and to the extent, taxes are assessed by the Miami-Dade County Property Appraiser's office), insurance and maintenance. 3. The City agrees it will construct and retain ownership of the new structure (which will house the restaurant), which structure will then be leased to Romacorp. The City will deliver a "shell" that will consist of the outside walls plus all utilities brought into the building and roof structure if applicable. Romacorp will be responsible for the connection of said utilities, electrical and plumbing work, interior finish work, decor and purchase and installation of furniture, fixtures and kitchen equipment, all at Romacorp's cost. Exhibit "B" Mr. Richard A. PeC.~ _Jy June 12, 2001 Page Two 4. The City and Romacorp agree to cooperate in the design ofthe facilities such that, the City Hall site and the restaurant site will be architecturally compatible and comport with all requirements ofthe Comprehensive Master Plan for the City. 5. The City agrees to undertake a traffic analysis for traffic flow and parking shall be mutually agreed upon by the parties. The City will be responsible for whatever traffic improvements are necessary for the development of both sites. Romacorp' s desire would be to have an approximate 7500 square-foot foot print for its new site, excluding outdoor dining, but the actual square footage will depend on whether or not Romacorp desires to incorporate a second floor into the restaurant design with everything being subject to building design criteria. 6. The foregoing terms are contingent upon, and subject to, approval by the City Commission on behalf of the City and the Board of Directors on behalf of Romacorp which approval will not be unreasonably withheld on either side. Upon such approval, however, by each of those respective entities, the terms of this letter will be considered binding, subject to final documentation and design approval, which design approval shall also not be umeasonably withheld. 7. The parties both agree that the Roma site will be delivered first, but there is no agreed upon or fixed time frame within which construction will commence, provided however, that to the extent possible, the City agrees to utilize its best efforts to create no "down time" in operation for Tony Roma's restaurant operations but further provided that, should such "down time" occur, the City will use its best efforts to have that occur during the months beginning and between June and September, unless the parties agree otherwise. 8. Romacorp agrees that should it become necessary, for any reason, to plat the property, it will execute a joinder to that plat. Yours truly, ~. '/{"'" ~~_.,-~- 11(/ '--' .. M:I>aiUiheisser CIty Attorney LMD:ch AGREED AND ACCEPTED ON THE TERMS SET FORTH ABOVE: Richard A. Peabody, ChiefFi Romacorp, Inc. Cc: Christopher J. Russo, City Manager