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HomeMy WebLinkAboutReso 2007-1172 RESOLUTION NO. 2007- \l12 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING AN OPTION AGREEMENT IN SUBST ANTIALL Y THE SAME FORM WITH AVILA CONDOMINIUM ASSOCIATION, INC., ATTACHED HERETO AS EXHIBIT "A", FOR THE PURCHASE AND SALE OF REAL PROPERTY, OF APPROXIMA TEL Y 20,550 SQUARE FEET LOCATED ALONG THE SOUTH SIDE OF NE 175TH TERRACE, APPROXIMATELY 200 FEET WEST OF COLLINS AVENUE, FOR ONE MILLION SIX HUNDRED FIFTY THOUSAND DOLLARS ($1,650,000.00) WITH AN OPTION DEPOSIT OF TWENTY FIVE THOUSAND DOLLARS ($25,000.00) FOR A 90-DAY OPTION, WHICH DEPOSIT SHALL BE APPLIED TO THE PURCHASE PRICE IF THE CITY PROCEEDS TO PURCHASE THE PROPERTY; AUTHORIZING THE MAYOR TO EXECUTE THE OPTION AGREEMENT; PROVIDING THE CITY MANAGER AND THE CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on March 13,2006, the City Commission held a Workshop to discuss the development of a strategic plan for the acquisition of property for open space/park purposes; and WHEREAS, at the Open Space Workshop, the City Commission decided to create a plan that would provide the framework for acquiring additional property for open space; and WHEREAS, at the Open Space Workshop, the City Commission also decided to continue to pursue open space opportunities that are available, during the interim period; and WHEREAS, the property located at the NE corner of 175th Terrace, presents a unique opportunity for the City Commission to purchase additional property to create a municipal parking garage for Samson Oceanfront Park; and WHEREAS, Avila Condominium Association Inc., is the owner of said property proposing to enter into an Option Agreement in the amount of One Million Six Hundred Fifty Thousand Dollars ($1,650,000.00) with an option deposit of Twenty Five thousand Dollars ($25,000.00) for a 90-day option, attached hereto as Exhibit "A"; and WHEREAS, the proposed purchase and sale of said property is contingent on at least 75% of the unit owners of Avila Condominium Association, Inc., authorizing the Board of Directors to approve same. 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 Resolution Approving Avila Option Agreement Page lof2 herein by reference. Section 2. Approval of Option Agreement. The City Commission of the City of Sunny Isles Beach, Florida, hereby approves the Option Agreement, in substantially the same form as the attached Exhibit "A", for the purchase of real property of approximately 20,550 square feet located along the south side of NE 175th Terrace, Sunny Isles Beach, Florida, for $1,650,000.00 with an option deposit of $25,000.00 for a 90-day option, which deposit shall be applied to the purchase price if the City proceeds to purchase the property. Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Option Agreement, in substantially the same form as the attached Exhibit A". Section 4. Authorization of City Manager and City Attorney. The City Manager and the City Attorney are hereby authorized to do all things necessary to effectuate this Resolution. Section 5. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 15th day of November 2007. , , '~I+~ , , ,Jane A. Hines".~N1C, City Clerk . ~ ". , Moved by: V\ CA ffifl.!jDY'" 1H tlrl-fR I Seconded by: CoVY\~ ICoLCCS, t'TS Vote: 5-D Mayor Norman S. Edelcup Vice Mayor Lewis Thaler Commissioner Roslyn Brezin Commissioner Gerry Goodman Commissioner Danny Iglesias ~(Yes) V (Yes) V (Yes) ~(Y es) V (Yes) _(No) _(No) _(No) (No) _(No) Resolution Approving Avila Option Agreement Page 2 of2 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 day of , 2007, by and between the City of Sunny Isles Beach, a Florida m~nicipal corporation and/or its assigns (the "Buyer") and the Avila Condominium Association, Inc., a Florida not for profit corporation (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 Buyer. City of Sunny Isles Beach. Buyer's mailing address is 18070 Collins Avenue, 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. A Quit Claim 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 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. 9 Option Expiration Date. Ninety (90) days after Effective Date, or sooner as described hereinafter. Option Agreement for Avila Condo. Assn. Property 1.10 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. 1.11 Purchase Price. The price the Buyer shall pay Seller for the Property as set forth in Paragraph 3 below. 1.12 Seller. Avila Condominium Association, Inc. Seller's mailing address is: 17620 Atlantic Boulevard, Sunny Isles Beach, FL 33160. 1.13 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. 1.14 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 Twenty Five Thousand Dollars ($25,000.00) (the "Option Fee") to Chicago Title Insurance Company, 2701 Gateway Drive, Pompano Beach, Florida 33069 Attention: Artie Montaner, 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 refundable, 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 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 of this Agreement pursuant to the provisions of Section 17 hereof due to a taking of the Property as and when Option Agreement for A vila Condo. Assn. Property 2 provided therein. The provISIOns of this Section 2.2 shall survlVe 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 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"). 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. 3. Purchase Price; Deposit and Escrow. 3.1 Purchase Price. The cash portion of the Purchase Price is One Million Six Hundred Fifty Thousand and 00/1 00 Dollars ($1,650,000.00), payable by Buyer to Seller as follows: (a) the Option Fee in the amount of Twenty Five Thousand and 001100 Dollars ($25,000.00), payable as provided in Section 2.2 above, simultaneously with the delivery to Seller of this Agreement executed by Buyer; (b) the balance of the Purchase Price, equal to One Million Six Hundred Twenty Five Thousand and 001100 Dollars ($1,625,000.00), 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 Option Fee. Liquidated Damages. Buyer and Seller agree that the damages which Seller would incur should Buyer default in its obligations under this Agreement are not 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 Option Fee, 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 Option Fee as required under this Agreement, then Seller's remedies shall be limited to the right to collect the Option Fee from Buyer and to retain the Option Fee 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 Option Agreement for A vila Condo. Assn. Property 3 Fee Account"). The Account shall be at any federally insured banking institution selected by the Escrow Agent (the "Bank"). As used herein, the term "Escrow Funds" means the Option Fee, 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 in the Account and some time to withdraw the Escrow Funds from the Account 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 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. 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 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. Option Agreement for A vila Condo. Assn. Property 4 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 that 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, 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, engineering and topographical studies, as buyer in its sole discretion deems necessary so long as it does not unduly interfere with Seller'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 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 the 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 Option Agreement for Avila Condo. Assn. Property 5 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 of this Agreement. 4.3 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 that neither the results of such appraisals nor any failure of Buyer to obtain such 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. Buyer shall provide copies of the appraisals to Seller after closing. 4.4 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, Seller's Trustees, officers, tenants, agents, contractors 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. 4.5 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. 4.6 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 Option Agreement for A vila Condo. Assn. Property 6 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 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 4.6. 5. Evidence of Title. 5.1 Delivery of Title Commitment. Within thirty (30) calendar days of the Effective Date, and subsequent to receipt of a copy of the prior deed to the Property in Seller's possession more particularly described below in this Paragraph, 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 fifteen (15) 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 fifteen-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 has 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. Option Agreement for A vila Condo. Assn. Property 7 6. Survey. Within the 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) days 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: 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. 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 Seller and its representatives, 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 has no actual knowledge nor has the Seller 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 environment (collectively "Governmental Authority(ies)"). Buyer must rely on its Environmental reports and assessments, as Seller is not aware of Property's environmental condition. Option Agreement for A vila Condo. Assn. Property 8 7.5 Litigation and Parties in Possession. To the actual knowledge of the 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. 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 or (ii) thirty (30) 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 Fee, 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 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 Charter 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. The Buyer represents and warrants to the Seller that the improvement to be constructed on the Property shall comply with the City's present zoning height restriction, i.e. 45 (forty five) feet. 9. Conditions Precedent to Closing. 9.1 Conditions to Buyer's Obligations. Each of the following events or occurrences ("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 thirty (30) 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 30-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 o(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 30-day extension provided in Section 9.1 above. Option Agreement for A vila Condo. Assn. Property 9 (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 30-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 Seller as set forth herein and for the improvements existing on the Effective Date. (d) Authorization of Avila Condominium Association, Inc. Seller shall have obtained authorization, in a form and content reasonably satisfactory to the Buyer, that (i) the Board of Directors of Avila Condominium Association, Inc. have approved this Agreement, and (ii) that at least 75% of the unit owners of Avila Condominium Association, Inc. have authorized the Board of Directors to approve same. The Seller shall have up to and including January 11, 2008, to obtain the required 75% approval of its unit owners. 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 thirty (30) 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 have done so within said 30-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 30-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 30-day extension provided in Section 9.2 above. (c) Authorization of the City Commission. Buyer shall have obtained authorization from the City Commission to enter into and execute this Agreement and consummate the transaction herein contemplated. 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 Option Agreement for Avila Condo. Assn. Property 10 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, MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR WITH RESPECT TO THE VALUE, 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 within 10 (ten) days of the parties completing all conditions precedents outlined in Section 9 above, and shall take place at the office of the Buyer's attorney at a mutually convenient date and time. If the conditions precedent outlined in Section 9 above are not met by either party by January 15, 2008, the non-reneging party's obligation to close this transaction may be avoided, upon proper notice to the other party. 12. Seller's Closing Documents. At closing, Seller shall deliver the following documents ("Seller's Closing Documents") to Buyer: 12.1 Quit Claim Deed. The Quit Claim 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 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 Seller and Buyer), and (c) no improvements to the Property have been made for which payment has not been made. Option Agreement for Avila Condo. Assn. Property II 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 Closing Statement. At least four (4) counterparts of a closing statement for this transaction, executed by Seller. 12.7 Documentation authorizing transaction. Documentation in form and content reasonably satisfactory to the Buyer that (i) the Board of Directors of A vila Condominium Association, Inc. have properly approved this Option Agreement for the purchase and sale of the Property; and (ii) at least 75% of the unit owners of A vila Condominium Association, Inc. have authorized the Board of Directors to approve same. 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. This Agreement shall be presented to City Commission for its approval at its regular meeting scheduled for November 15,2007. 13.2 Appraisals. Any and all appraisals required under Chapter 166 of the Florida Statutes. 13.3 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: 14.1 Transfer of Funds. Buyer shall pay the net closing proceeds 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. Option Agreement for A vila Condo. Assn. Property 12 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. 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; documentary stamps on the Special Warranty Deed and any all surtax imposed by Miami-Dade County with respect to the Special Warranty Deed. 16. Possession. Buyer shall be granted full possession of the Property at Closing. 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 this Agreement, the parties hereto shall proceed to Closing and Seller shall assign all of its rights, title and interest in all awards in cOlmection 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 an overnight nationally recognized delivery service, on the business day immediately following delivery to Option Agreement for A vila Condo. Assn. Property 13 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 medium shall maintain an appropriate receipt of delivery, in the normal course of business. BUYER: The City of Sunny Isles Beach 18070 Collins Avenue Fourth Floor Sunny Isles Beach, Florida 33160 Attn: A. John SzerIag, City Manager and Hans Ottinot, City Attorney With a copy to: Harold M. Rifas, P.A. 7900 Red Road South Miami, Fl 33143 SELLER: Keith Marshall, P.A. Concorde Centre 2999 NE 1 91 sst. Street A ventura, Florida 33180 Attn: Keith Marshall, Esq. With a copy to: 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. Option Agreement for A vila Condo. Assn. Property 14 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. 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. 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. Option Agreement for A vila Condo. Assn. Property 15 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. 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. fSi!matures on Followin!! Pa!!el Option Agreement for Avila Condo. Assn. Property 16 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: AVILA CONDOMINIUM ASSOCIATION, INC. BY: JUAN FIGALLO, PRESIDENT AVILA CONDOMINIUM ASSOCIATION, INC. Date Executed: BUYER: ATTEST: CITY OF SUNNY ISLES BEACH, a Florida Municipal Corporation, BY: MAYOR NORMAN S. EDELCUP JANE A. HINES, CMC CITY CLERK APPROVED AS TO LEGAL FORM AND SUFFICIENCY Date Executed: BY: Dated: HANS OTTINOT CITY ATTORNEY Option Agreement for A vila Condo. Assn. Property 17 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY SOUTH SIDE OF NE 175TH TERRACE ABOUT 200 FEET WEST OF COLLINS AVENUE; A PORTION OF TRACT D, SUNNY ISLES SHORES SECTION B, ACCORDING TO THE PLAT RECORDED IN PLAT BOOK 65, PAGE 47 OF THE PUBLIC RECORDS OF MIAMI- DADE COUNTY, FLORIDA Location: Collins Avenue Sunny Isles Beach, Florida, 33160 Option Agreement for Avila Condo. Assn. Property City of Sunny Isles Beach 18070 Collins Avenue, Suite 250 Sunny Isles Beach, Florida 33160 (305) 947-0606 City Hall (305) 949-3113 Fax (305) 947-2150 Building Department (305) 947-5107 Fax City Commission Norman S. Edelcup, Mayor Lewis J. Thaler, Vice Mayor Gerry Goodman, Commissioner Roslyn Brezin, Commissioner Danny Iglesias, Commissioner A. John Szerlag, City Manager Hans Ottinot, City Allorney Jane A. Hines, CMC, City Clerk MEMORANDUM TO: The Honorable Mayor and City Commission Hans Ottinot, City Attorney ~ November 15, 2007 FROM: DA TE: RE: Approval of Option Agreement for Purchase of Property from Avila Condominium Assn. Inc. RECOMMENDA TION It is recommended that the City Commission adopt the attached Resolution, approving an Option Agreement for the purchase of property from A vila Condominium Association, Inc. (the "Seller"). REASONS The Seller has agreed to enter into an Option Agreement with the City for the purchase of property located at the N.E. corner of 175th Terrace, in the amount of $1,650,000.00 with a $25,000.00 deposit for a 90-day option period. This transaction is contingent on the Seller obtaining at least 75% approval from its unit owners. It is important to note that the property will be a great asset to the City because it can be used as off-site parking for Samson Oceanfront Park. Agenda Item Date City of SIHlny l~l~~ Be~:l~b~ 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947-0606 City Hall (305) 949-3 II 3 Fax (305) 947-2150 Building Department (305) 947-5107 Fax City Commission Norman S. Edelcup, Mayor Lewis J. Thaler, Vice Mayor Roslyn Brezin, Commissioner Gerry Goodman, Commissioner Danny Iglesias, Commissioner OF su'" A. John Szerlag, City Manager Hans Ottinot, City Attorney .Iane A. Hines, CMC, City Clerk MEMORANDUM TO: Hans Ottinot, City Attorney Priscilla Walker, CMC, Deputy City Clerk ? W~ FROM: DATE: November 19, 2007 RE: Approval of Option Agreementwith Avila Condo Association, Inc. At its regular meeting of November 15, 2007, the City Commission adopted Resolution No. 2007-1172, which approved a purchase option agreement with Avila Condo Association, Inc. for the purchase of real property. It is agreed that the City Attorney's Office will secure the seller's signature on the agreements and that the Office of the City Cle'rk will process the documents after that. Attached are two Option Agreements to assist you in this regard. Thank you. Ipw Attachments Avila Property Purch Agrmt For Sig Memo