HomeMy WebLinkAboutReso 2009-1452
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RESOLUTION NO. 2009- ~
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, APPROVING AN AGREEMENT WITH
MALIBU PLAZA ON THE BAY, L.L.C. FOR THE PURCHASE AND SALE
OF REAL PROPERTY LOCATED AT 16100 COLLINS A VENUE, IN THE
AMOUNT OF $4,800,000.00 WITH A DEPOSIT OF $480,000.00 WHICH
DEPOSIT SHALL BE CREDITED AGAINST THE PURCHASE PRICE AT
CLOSING, IN SUBST ANTIALL Y THE SAME FORM AS THE ATTACHED
EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID
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, the City is in need of additional land for open space/park purposes; and
WHEREAS, the property located at 16100 Collins A venue presents a unique opportunity for
the City Commission to purchase additional property for open space/ park purposes; and
WHEREAS, the owner of the property located at 16100 Collins A venue is willing to accept
an offer for the purchase of said property, in the amount of $4,800,000.00 (Four Million Eight
Hundred Thousand Dollars) with a deposit of$480,000.00 (Four Hundred Eighty Thousand Dollars)
which deposit shall be credited against the purchase price at closing, attached hereto as Exhibit "A".
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 Agreement of Purchase and Sale. The Agreement for purchase and sale
of real property, located at 16100 Collins A venue, in the amount of $4,800,000.00 (Four Million
Eight Hundred Thousand Dollars), with a deposit of$480,000.00 (Four Hundred Eighty Thousand
Dollars), which deposit shall be credited against the purchase price at closing, attached hereto as
Exhibit "A", be and the same, is hereby approved.
Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement of
Purchase and Sale.
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 the terms of this Resolution.
Page I 01'2
Section 5.
Effective Date. This Resolution shall become effective upon adoption.
'.' fATTEST:'
:~i\o-~
~ Jane A. Hines, CMC, City Clerk
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. AP.PRO,VED AS TO FORM AND
LEG SU IE CY
Vote: ~-o
Mayor Norman S. Edelcup
Vice Mayor Lewis Thaler
Commissioner Roslyn Brezin
Commissioner Gerry Goodman
Commissioner Bud Scholl
Moved by: Ct>~ 6,Q.i:2.1JJ
Seconded by: ~\u.. <<\~ ~~~
-1L.(Yes)
V(Yes)
----1L1 Y es )
lAy es)
Z(Yes)
(No)
_(No)
_(No)
_(No)
(No)
Page 201'2
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT ~ PURCHASE AND SALE ("Agreement") is made and
entered into this 9-U\ day of 1-. ~ ,2009 by and between MALIBU PLAZA ON THE
BAY, L.L.c. ("Seller") and THE CITY OF SUNNY ISLES BEACH, FLORIDA, a body
corporate and politic organized under the laws of the State of Florida ("Purchaser").
WIT N E SSE T H:
WHEREAS, Seller is the fee simple owner of the Realty (hereinafter defined); and
WHEREAS, Seller desires to sell the Property (hereinafter defined) to Purchaser, and
Purchaser desires to purchase the Property from Seller, in accordance with and subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained
herein, and the sum of TEN AND NOIIOO DOLLARS ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties,
intending to be legally bound, do hereby agree as follows:
1. Purchase and Sale; Realty. Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, all that certain parcel of real property consisting of approximately
.67 acres, more or less, situate, lying and being in the County of Miami-Dade ("County"), State
of Florida, and of which the legal description is set forth in Exhibit "A" attached hereto and made
a part hereof ("Realty") in fee simple, together with the following property and rights (the Realty
and such property and rights are referred to herein collectively as, the "Property"):
(a) All surveys, plans, plats, soil tests, engineering studies, environmental
studies and all other documents, studies, title policies, licenses, permits, authorizations,
approvals, soil and ground water reports and asbestos material surveys, and any other intangible
rights pertaining to the ownership andlor operation of the Realty, if any (collectively, the
"Documents");
(b) All strips and gores of land lying adjacent to the Realty, together with all
easements, privileges, riparian and other water rights, lands underlying any adjacent streets or
roads, improvements located on the Realty and appurtenances pertaining to or accruing to the
benefit of the Realty; and
(c) All improvements thereon and all equipment and fixtures affixed to the
property or the improvements to the property.
2. Deposit. Upon execution of this Agreement, Purchaser shall deliver a deposit of
FOUR HUNDRED AND EIGHTY THOUSAND DOLLARS ($480,000.00) (hereinafter
referred to as the "Deposit") with the Purchaser's Escrow Agent; The Deposit shall be deposited
by Escrow Agent in an interest bearing account, and any interest accrued shall be payable to
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Purchaser at Closing. The Deposit shall be credited against the Purchase Price at Closing, and
shall be otherwise subject to the terms and conditions contained herein.
3. Purchase Price; Manner of Payment. The purchase price ("Purchase Price") to be
paid by Purchaser to Seller for the Property shall be the sum of FOUR MILLION EIGHT
HUNDRED THOUSAND DOLLARS ($4,800,000.00), subject to credits, prorations and
adjustments as provided in this Agreement. The Purchase Price shall be payable by Purchaser to
Seller at the Closing. The purchase price shall be paid by Purchaser in an installment basis with
TWO MILLION ONE HUNDRED THOUSAND DOLLARS ($2,100,000.00) due and payable
at Closing (subject to credits, prorations and adjustments) and TWO MILLION SEVEN
HUNDRED THOUSAND DOLLARS ($2,700,000.00) due and payable within 2 (two) years
from the date of Closing. The Purchaser shall execute a Promisory Note with respect to a final
payment of Two Million Seven Hundred Thousand Dollars ($2,700,000.00) Purchaser agrees to
pay fifty percent (50%) of the Note within one (l) year of closing. Purchaser further agrees to
pay the remaining 50% of the Note within a year of making the initial payment on the Note.
Purchaser shall execute a First Mortgage in favor of Seller which will secure Purchaser's
payment of the Promissory Note. The Purchaser and Seller acknowledge and accept that the
Promissory Note and Mortgage will wrap an existing Mortgage issued by Seller to Mark
Shantzis. Seller shall be obligated to continue to pay and to satisfy the existing mortgage no later
than April 30, 2012 or expiration of the leaseback agreement. The Purchaser and Seller agree
that there shall be no pre-payment penalty in the event the Seller request final payment before
expiration of the installment period.
4. Title and Survey. (a) Within thirty (30) days of the Effective Date (hereinafter
defined), Purchaser shall obtain the following: (i) a title report issued by a title insurance
company acceptable to Purchaser ("Title Company") enabling a title agent selected by Purchaser
to issue an AL T A Form B title insurance commitment ("Commitment") covering the Realty,
whereby the Title Company agrees to issue an AL T A Form B owner's policy of title insurance
("Title Policy") in the amount of the Purchase Price at Closing, subject only to the matters
("Acceptable Exceptions") which do not adversely affect marketability (as determined by the
standards adopted by the Florida Bar) of title to the Realty or affect the ability of Purchaser to
utilize the Property and develop the Property for municipal and public use purposes to the extent
permitted by law ("Proposed Improvements"), and (ii) hard copies of all exceptions to title set
forth in the Commitment (collectively, the "Title Evidence"). Purchaser may select its own title
agent.
(b) Purchaser shall have the right, at its option, at Purchaser's sole cost and
expense, to obtain an up to date survey of the Realty (certified to a date after the Effective Date)
prepared in accordance with the minimum technical standards imposed by the Florida Board of
Land Surveyors and signed under seal, which survey shall be certified to Purchaser and the Title
Company ("Survey"). If obtained by Purchaser, the Survey shall be considered as a part of the
Title Evidence for purposes of this Paragraph 4.
(c) Purchaser shall review the Title Evidence and shall, within thirty (30) days
following receipt of the Title Evidence, notify Seller in writing ("Title Obiection Notice") of any
matters in the Title Evidence adversely affecting the marketability (as determined by the
standards adopted by the Florida Bar) of title to the Realty or affecting the ability of Purchaser to
utilize the Property and develop the Proposed Improvements thereon ("Title Defects"). Upon
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receipt of the Title Objection Notice, Seller shall use its good faith efforts to cure such Title
Defects. In the event that Seller is unable to cure the Title Defects within thirty (30) days of the
Title Objection Notice ("Title Cure Period") after good faith efforts to do so, Seller shall notify
Purchaser in writing as to which Title Defects remain uncured on or before the end of the Title
Cure Period and Purchaser, at Purchaser's option, may: (i) elect to accept title to the Property
subject to the Title Defects without any adjustment to the Purchase Price (in which event the
remaining Title Defects shall be deemed Acceptable Exceptions); (ii) terminate this Agreement
by written notice thereof to Seller, whereupon this Agreement shall be terminated, and both
parties shall thereafter be released from all further obligations hereunder (except matters stated
herein to specifically survive termination of this Agreement); or (iii) elect to extend the Title
Cure Period for an additional 15 days (not to exceed forty-five (45) days), and if upon the
expiration of such period Seller shall not have cured the Title Defects, Purchaser shall have the
options set forth in (i) or (ii) above. During the period described in (iii) above, Purchaser shall
have the right, at its sole election, to attempt to cure the Title Defects at it sole expense. The
Closing Date shall be extended to the extent necessary to permit Seller the opportunity to cure
any Title Defects. At Closing, Seller shall provide Purchaser with a gap affidavit in form
reasonably acceptable to the Title Company to permit the Title Company to insure against
adverse matters first appearing in the Public Records on a date subsequent to the effective date of
the Commitment and prior to the recording of the "Deed" (as hereinafter defined) required by the
terms of this Agreement as permitted and in accordance with the requirements of
Section 627.7841, Florida Statutes. Seller agrees that it will not take any action after the
Effective Date of this Agreement which shall adversely affect the status of title to the Property.
Seller shall satisfy any encumberances or liens at the time of closing.
5. Inspections. Seller and Purchaser hereby acknowledge that as of the date of the
execution of this Agreement, Purchaser has not yet had an opportunity to complete its required
due diligence and to fully review and evaluate this transaction. If on or before 5:00 p.m. on a
date which is sixty (60) days from the Effective Date hereof ("Inspection Completion Date"),
Purchaser determines, in its sole and absolute discretion, that Purchaser does not desire to
purchase the Property, then Purchaser shall have the right to give written notice to Seller electing
to terminate this Agreement, provided such notice is delivered to Seller prior to 5:00 p.m. on the
Inspection Completion Date ("Notice of Termination"). In the event such Notice of Termination
is delivered on or before 5:00 p.m. on the Inspection Completion Date, the parties shall be
released from all further obligations each to the other under this Agreement, except those
obligations which are specifically stated herein to survive the termination hereof, and the Deposit
and all interest earned thereon shall be returned to Purchaser within 48 hours of demand.
Purchaser, its agents, employees and representatives shall have access to the
Property at all times subsequent to the Effective Date and prior to the Closing or earlier
termination of this Agreement with full right to: (a) inspect the Property, and (b) to conduct any
and all inspections, investigations and tests thereon, including, but not limited to, soil borings
and hazardous waste studies, and to make such other examinations with respect thereto as
Purchaser, its counsel, licensed engineers, surveyors, appraisers, or other representative may
deem reasonably necessary ("Due Diligence Investigations"). Any Due Diligence Investigations
of the Property by Purchaser and all costs and expenses in connection with Purchaser's Due
Diligence Investigations of the Property shall be at the sole cost of Purchaser and shall be
performed in a manner not to unreasonably interfere with Seller's ownership of the Property.
Purchaser shall remove or bond any lien of any type, which attaches to the Property by virtue of
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any of Purchaser's Due Diligence Investigations. Upon completion of any such Due Diligence
Investigations, Purchaser shall restore any damage to the Property caused by Purchaser's Due
Diligence Investigations. Purchaser hereby indemnifies and holds Seller harmless, to the limit of
Section 768.28 Florida Statutes from all loss, cost or expense, including, but not limited to,
reasonable attorneys' fees and court costs resulting from Purchaser's Due Diligence
Investigations in connection with the Property. Notwithstanding anything contained herein to
the contrary, Purchaser shall not indemnify or hold Seller harmless with respect to, and
Purchaser shall not be required to, remove, remediate, dispose or otherwise deal with any
"Hazardous Substance" (as hereinafter defined), samplings derived from the Property or property
containing Hazardous Substances which it finds in connection with its Due Diligence
Investigations of the Property.
Within ten (10) business days of the Effective Date, Seller shall deliver to
Purchaser hardcopies of any surveys, engineering reports, inspections reports and environmental
studies, if any, which Seller has in its possession for Purchaser's review. Additionally, Seller
shall provide Purchaser such other documentation as Purchaser may reasonably request with
respect to the Property.
Purchaser shall have until the end of the Inspection Period to obtain two
appraisals for the Property in accordance with Chapter 166, Florida Statutes.
The provisions of this Paragraph 5 shall survive termination of this Agreement.
6. Seller's Representations. As a material inducement to Purchaser entering into this
Contract, Seller warrants and represents to and covenants with Purchaser that the following
matters are true as of the Effective Date and that they will also be true as of Closing Date.
Notwithstanding anything to the contrary herein, the effect of the representations and warranties
made in this contract shall not be diminished or deemed to be waived by any inspections, tests or
investigations made by Purchaser or its agents. Seller agrees to indemnify and hold harmless
Purchaser from any and all claims, costs, judgments, damages, fees (including attorney's fees)
repairs, or expenses incurred as a result of any breach of any warranty and representation.
Seller represents, warrants and covenants unto Purchaser and agrees with Purchaser as
follows:
(a) The Property is currently subject to leases, tenancies or other occupancy
rights. However, Seller agrees to deliver property on or before April 30, 2012 free of any leases,
tenancies or other occupancy rights, recorded or unrecorded, written or oral subject to
Paragraphs 16 and 17 herein.
(b) Seller has no notice or knowledge of any pending lawsuits, any pending
condemnation or eminent domain proceedings with respect to the Property.
(c) The execution, delivery and performance of this Agreement by Seller has
been duly authorized and no consent of any other person or entity to such execution, delivery and
performance is required to render this document a valid and binding instrument enforceable in
accordance with its terms.
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(d) Seller is not a "foreign person" within the meaning of the United States tax
laws, to which reference is made in Internal Revenue Code Section 1445(b )(2). At Closing,
Seller shall deliver to Purchaser an affidavit to such effect, which shall also state Seller's social
security number and the state within the United States under which Seller then exists. Seller
acknowledges and agrees that Purchaser shall be entitled to fully comply with Internal Revenue
Code Section 1445 and all related sections and regulations, as same may be modified and
amended from time to time, and Seller shall act in accordance with all reasonable requirements
of Purchaser to effect such full compliance by Purchaser.
(e) Neither Seller nor any of its affiliates have generated, recycled, reused,
sold, stored, handled, transported or disposed of any Hazardous Substance on the Property during
any period of time Seller has had an interest in the Property. To the best of Seller's knowledge,
the Property complies with all applicable local, state, federal environmental laws, regulations,
ordinances or administrative or judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and/or disposal of any Hazardous Substance. As used herein, the
term "Hazardous Substance" means any substance or material defined or designated as a
hazardous or toxic waste material or substance or other similar term by any federal, state
environmental statute, regulation or ordinance presently in effect, as such statute, regulation or
ordinance may be amended from time to time or any petroleum or petroleum derivative products.
Without limiting the foregoing Seller further covenants and warrants unto Purchaser that during
the period in which Seller has had an interest in the Property: (i) no asbestos or similar materials
now or at any time in the past have been located upon the Property; (ii) no petroleum, or any
petroleum derivative products have ever been stored or disposed on the Property. Seller hereby
discloses to Purchaser that radon is a naturally occllrring 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 have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county public health
unit. To the best of Seller's knowledge no radon contamination exists or has existed on the
Property. While the Seller does not have any reason to believe that there is any environmental
contamination on the property, Seller does disclose that a former tenant of space number 101
operated a drycleaner.
(f) Seller will execute such affidavits and undertakings reasonably required
by the Title Company to issue the Title Policy at Closing to Purchaser in the amount of the
Purchase Price, subject only to the Acceptable Exceptions
(g) Seller shall not at any time while this Agreement is in effect, make or
permit any contract or agreement or impose or allow to impose any new lien, encumbrance or
other matter affecting title to the Property or grant or allow to be granted any right in or on or to
the Property without the prior written consent of Purchaser, which consent may be withheld by
Purchaser in its sole discretion. Notwithstanding anything in the foregoing to the contrary, Seller
shall be permitted, with notice to Purchaser, to modify existing leases, to terminate leases, and to
enter into new leases; provided that all such leases shall terminate and all sllch tenants shall
vacate the property on or before the end of the sale leaseback agreement described in Paragraphs
16 through 18.
(h) The entering into this Agreement (and the sale of the Property to
Purchaser) (i) shall not constitute a violation or breach by Seller of: (A) any contract, agreement,
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understanding or instrument to which it is a party or by which Seller or the Property is subject or
bound; or (B) any judgment, order, writ, injunction or decree issued against or imposed upon
them; and (ii) will not result in the violation of any applicable law, order, rule or regulation of
any governmental or quasi-governmental authority.
(i) There are no facts known to Seller materially affecting the value of the
Property which are not readily observable by Purchaser or which have not been disclosed to the
Purchaser.
U) Seller and any related party effectuating the transaction contemplated
herein shall provide Purchaser at Closing an affidavit in full compliance with Section 286.23,
Florida Statutes.
The prOVIsions of this Paragraph 6 shall survive the Closing or the earlier
tern1ination of this Agreement.
7. Default. In the event of a default by Purchaser hereunder not cured by Purchaser
within thirty (30) days after written notice thereof to Purchaser, Seller may as its sole and
exclusive remedy terminate this Agreement by giving written notice to Purchaser and
immediately receive from Purchaser the amount of FIFTY THOUSAND DOLLARS ($50,000)
("the Liquidated Sum"), as agreed upon liquidated damages and in full settlement of all claims of
the Seller against the Purchaser arising from or related to this Agreement. Seller and Purchaser
specifically understand and agree that (i) the foregoing remedy is intended to operate as a
liquidated damages clause and not as a penalty or forfeiture provision; (ii) the actual damages
that Seller may suffer if Purchaser defaults are impossible to ascertain precisely and, therefore,
the Liquidated Sum represents the parties' reasonable estimate of such damages considering all
of the circumstances existing on the date of this Agreement; (iii) the Liquidated Sum is intended
to fully compensate Seller for entering into this Agreement and, therefore, Seller shall not be
entitled to bring any action at law or in equity against Purchaser for an alleged default under this
Agreement except such actions as are necessary to obtain the Liquidated Sum; and (iv) upon
receipt by Seller of the Liquidated Sum, this Agreement shall cease and terminate and be of no
further force and effect, and Seller shall have no further claims against Purchaser under this
Agreement except for any claims under any provisions of this Agreement that specifically
survive termination of this Agreement. Seller hereby expressly waives all rights to seek damages
other than the liquidated damages provided for in this paragraph and agrees to waive any defense
of mutuality of remedy.
In the event of a default by Seller under this Agreement, which default is not
cured by Seller within thirty (30) days after written notice thereof to Seller, Purchaser shall have
the option of either: (A) seeking specific performance of Seller's obligations hereunder; or (B)
terminating this Agreement by giving written notice to Seller and immediately receive a refund
of all deposits paid by Purchaser under this Agreement. In the event that Purchaser elects option
(B) above then upon receipt by Purchaser of its deposit, this Agreement shall cease and terminate
and be of no further force and effect, and Purchaser shall have no further claims against Seller
under this Agreement, except for any claims under any provisions of this Agreement that
specifically survive termination of this Agreement. The provisions of this Paragraph 7 shall
survive any termination of this Agreement.
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8. Prorations. Real estate taxes, personal property taxes, assessments and all items
of income and expense regarding the Property shall be prorated as of the date of Closing;
provided, however, that assessment lien(s) which had been certified as of the date of Closing,
and pending liens where the improvements have been substantially completed, shall be satisfied
by Seller, in full, at Closing.
In the event that the tax bill for the year of Closing is not available, Seller shall
comply with Section] 96.295, Florida Statutes. Under this Section, in the event fee title to the
Property is acquired between January], and November I of any year by Purchaser, Seller shall
be required to place in escrow with the county tax collector an amount equal to the current taxes
prorated to the date of transfer of title, based upon the current assessment and millage rates on
the land involved. This fund shall be used to pay any ad valorem taxes due, and the remainder of
taxes which would otherwise have been due for that current year shall stand cancelled.
In the event fee title to the Property is acquired between November 2 and
December 3], Seller, at least five (5) business days prior to Closing, shall notify the Property
Appraiser's Office ("Appraiser's Office") of the impending closing date and provide the
Appraisers Office with the legal description, address, folio number and any other relevant
property information in order to obtain from the Appraiser's Office a final tax payoff, which will
be collected at closing. There shall be no proration of taxes and the Purchaser shall be exempt
from the payment of taxes effective on the day of closing. In the event any other expenses
pertaining to the Property are not known at Closing, then such expenses shall be prorated based
on an estimate and the parties will reprorate same upon receipt of the actual bill for such
expenses. In the event there is any recoupment or other consideration payable to applicable
governmental authorities as the result of any change of the use by Seller of the Property prior to
closing, then Seller shall satisfy such obligation at Closing.
The provisions of this Paragraph 8 shall survive Closing.
9. Closing Costs. The parties shall bear the following costs:
(a) Purchaser shall be responsible for (i) the recording cost of the Deed,
(ii) the cost of the Survey (if obtained by Purchaser), (iii) the cost of the Commitment and the
premium for the Title Policy obtained by Purchaser (except that Seller shall reimburse Purchaser
at Closing for the title underwriter's actual cost of the title search fee for the issuance of the
Commitment, up to a maximum of FIVE HUNDRED DOLLARS ($500)), and (iv) documentary
stamps, taxes, surtaxes and other transfer charges in connection with the recordation of the Deed.
(b) Seller shall be responsible for payment of costs of curing any Title Defects
and the recording costs in connection with any curative instruments relating to same, and the
Commission (hereinafter defined).
(c) Each party shall be responsible for payment of its own legal fees.
] O. Closing. It is mutually understood that the execution of this Purchase Agreement
by Seller constitutes conditional acceptance and is subject to final acceptance and approval by
the City Commission of the City of Sunny Isles Beach pursuant to the necessary vote at a duly
called Commission meeting scheduled for July ] 6, 2009. Notice of final City Commission
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acceptance shall be provided to Seller after the City Commission meeting at which this matter is
presented for approval. The Closing shall be held at the office of the City of Sunny Isles Beach
City Attorney's Office, located at 18070 Collins A venue, Fourth Floor, Sunny Isles Beach,
Florida 33160, with Closing to occur no later than August 21, 2009 days following City
Commission acceptance and approval at a duly called Commission meeting.
At Closing, the following shall occur:
(a) Seller shall execute and deliver to Purchaser the following documents with
respect to the Property:
(i) A statutory warranty deed ("Deed") subject only to the Acceptable
Exceptions;
(ii) A customary construction lien affidavit;
(iii) An affidavit of exclusive possession of the Property being
conveyed, subject to the Leashold rights of the then current tenants
on the property.
(iv) A non-foreign affidavit In a form reasonably acceptable to
Purchaser;
(v) Appropriate assignments or bills of sale transferring to Purchaser
all personal property or property rights (including, but not limited to, the Documents)
contemplated by this Agreement or reasonably requested by Purchaser in forms reasonably
acceptable to Purchaser, free and clear of all liens, claims or encumbrances;
(vi) If applicable, appropriate evidence of Seller's formation, existence
and authority to sell and convey the Property;
(vii) Affidavit from Seller disclosing each person having a legal or
beneficial interest in Seller, and in any entity comprising Seller, in compliance with Section
286.23, Florida Statutes, as it may be amended from time to time; and
(viii) Such other documents that the Title Company may reasonably
require in connection with the issuance of the Title Policy to Purchaser and the delivery of good
and marketable title to the Property from Seller to Purchaser as provided in this Agreement,
including, but not limited to, an appropriate "gap" affidavit in order to delete the "gap" exception
and such affidavits required for deletion of the matters of survey, unrecorded easements, parties
in possession and construction lien exceptions otherwise appearing on the Title Policy.
(b) Purchaser shall execute and/or deliver to Seller TWO MILLION ONE
HUNDRED THOUSAND DOLLARS ($2,100,000.00) in addition to a promissory note with
respect to the final payment of TWO MILLION SEVEN HUNDRED THOUSAND DOLLARS
($2,700,000.00) (subject to credits, prorations and adjustments).
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(c) Seller and Purchaser shall each execute counterpart closing statements in a
customary form together with such other documents as are reasonably necessary to consummate
the Closing.
(d) Seller's costs will be adjusted for and deducted on the Closing Statement.
Purchaser's cash to close will be delivered by cash, wire transfer, or cashier's check drawn on a
bank reasonably acceptable to Seller.
11. No Brokers. Seller and Purchaser 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 Purchaser 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.
The provisions of this Paragraph II shall survive the Closing and any cancellation
or earlier termination of this Agreement.
12. Assignability. Purchaser may assign its rights hereunder without Seller's consent,
provided, however, that upon any such assignment, any such assignee shall agree to be bound by
the terms and conditions set forth in this Agreement.
13. Notices. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed given if delivered by hand, sent by recognized overnight
courier (such as Federal Express), transmitted via facsimile transmission or mailed by certified or
registered mail, return receipt requested, in a postage pre-paid envelope, and addressed as
follows:
PURCHASER:
The City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
Attn: Rick Conner,- . City Manager and
Hans Ottinot, City Attorney
SELLER:
Malibu Plaza on the Bay, LLC
16100 Collins Avenue, # II 0
Sunny Isles Beach, Florida 33160
Attn: Sidney S. Koslovsky and Susan Koslovsky
ESCROW AGENT:
Attn: Artie Montaner
Chicago Title Insurance Co.
270 I Gateway Drive,
Pompano Beach, Fl 33069
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Notices personally delivered or sent by overnight courier shall be deemed given on the date of
receipt, notices sent via facsimile transmission shall be deemed given upon transmission, and
notices sent via certified mail in accordance with the foregoing shall be deemed given two (2)
days following the date upon which they are deposited in the U.S. Mails.
14. Risk of Loss. If, prior to Closing, the Property or any material portion thereof is
destroyed or damaged or taken by eminent domain, Seller shall promptly notify Purchaser and
Purchaser shall have the option of either: (i) canceling this Agreement by delivery of written
notice to Seller and both parties shall be relieved of all further obligations under this Agreement;
or (ii) Purchaser may proceed with the Closing, whereupon Purchaser shall be entitled to (and
Seller shall assign to Purchaser all of Seller's interest in) all insurance and/or condemnation
payments, awards and settlements applicable to the Property. In the event Purchaser elects
option (ii) above in connection with casualty to the Property in which insurance proceeds are or
will be paid and assigned to Purchaser, then Purchaser shall receive a credit against the Purchase
Price for any insurance deductible that must be paid.
15. Naming Rights. Purchaser agrees to name a City park, constructed on the
property in honor of Alex A. Koslovsky. The Park shall be named the "Alex A. Koslovsky
Family Park". This Paragraph 15 shall survive Closing.
16. Sale Leaseback Agreement. The parties agree prior to closing to execute a triple
net sale leaseback agreement for the Seller to manage the property until April 30, 2012. Under
the sale leaseback agreement, the Seller agrees to manage and operate the above-described
property until or about April 30, 2012. Upon closing of the purchase by the Purchaser, the Seller
shall be entitled to all rent and income derived from the property, and the Seller shall assume all
normal management obligations as property manager and be responsible for all expenses relating
to the property, including but not limited to taxes in the first year of the leaseback agreement and
insurance. Following the expiration of the leaseback agreement, the Seller shall be required to
immediately vacate the Property. The parties agree and acknowledge that there are leases in
place in the property and it will be up to the Seller at the Seller's expense to assure that all
tenants are removed from the premises by April 30, 2012. The parties will enter into a
Memorandum of Lease to confirm the existence of a sale leaseback agreement. This Paragraph
16 shall survive the Closing.
17. No Leasehold Interests. Seller warrants no later than April 30, 2012, the Property
shall not be encumbered by any leasehold interests which exceeds the duration of the leaseback
agreement. Seller agrees that during the leaseback period described in Paragraph 16, Seller will
give notice to Purchaser whenever Seller executes a new lease or modifies or extends an existing
lease; and all such new leases and modifications of existing leases must have a termination date
prior to April 30, 2012. Notwithstanding the foregoing, any existing tenants shall be provided
with the opportunity to remain on the Property during the leaseback period pursuant to the lease
agreements between tenants and Seller. However, the lease agreements shall be terminated by
Seller prior to the expiration of the leaseback period. This Paragraph 17 shall survive the
Closing.
18. Seller's Property Management Responsi bil i ties.
leaseback agreement between Seller and the City prior to
10
The parties agree to execute a
Closing. Under the leaseback
cA~A
agreement, the Seller agrees to manage and operate the above-described property pursuant to the
triple net leaseback agreement. The Seller agrees to collect all rents and other income from the
property on behalf the City and to handle all obligations of property manager during this two
year management period. Upon closing of the purchase by the City, all income derived from the
property, including rents and other income, shall be retained by the Seller, and all expenses
relating to the property, including but not limited to taxes in the first year of the leaseback
agreement and insurance, shall be the Seller's responsibility. Following the expiration of the
leaseback agreement, the Seller shall be required to immediately vacate the Property.
Notwithstanding any provision in this agreement. Seller shall have no obligation to pay any rent
to Purchaser in conjunction with the sale leaseback agreement. Notwithstanding the foregoing,
the Purchaser shall be responsible for property taxes beginning on January 1, 2011 through the
end of the leaseback agreement.
19 Miscellaneous.
(a) This Agreement shall be construed and governed in accordance with laws
of the State of Florida and in the event of any litigation hereunder, the venue for any such
litigation, shall be in Miami-Dade County. All of the parties to this Agreement have participated
fully in the negotiation and preparation hereof and, accordingly, this Agreement shall not be
more strictly construed against anyone of the parties hereto.
(b) In the event any provision of this Agreement is determined by appropriate
judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal
meaning or reconstrued as such authority determines, and the remainder of this Agreement shall
be construed to be in full force and effect.
(c) In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to all reasonable attorney's fees and costs through all trial and
appellate levels. The provisions of this subparagraph shall survive the Closing and any
termination or cancellation of this Agreement.
(d) In construing this Agreement, the singular shall be deemed to include the
plural, the plural shall be deemed to include the singular and the use of any gender shall include
every other gender and all captions and paragraph headings shall be discarded.
(e)
of this Agreement.
All of the Exhibits to this Agreement are incorporated in and made a part
(f) This Agreement constitutes the entire agreement between the parties for
the sale and purchase of the Property, and supersedes any other agreement or understanding of
the parties with respect to the matters herein contained. This Agreement may not be changed,
altered or modified except in writing signed by the party against whom enforcement of such a
change would be sought. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns.
(g) The term "Effective Date" or such other similar term is the date on which
II
A~~
the last of the parties initials or signs the latest offer. Time is of the essence for all provisions of
this Agreement. All time periods will be computed in business days (a "business day" is every
calendar day except Saturday, Sunday and national legal holidays). If any deadline falls on a
Saturday, Sunday or national legal holiday, performance will be due the next business day. All
time periods will end at 5:00pm, Miami time, of the appropriate day.
(h) This Agreement and any subsequent amendments hereto may be executed
in any number of counterparts, each of which, when executed, shall be deemed to be an original,
and all of which shall be deemed to be one and the same instrument. Facsimile transmission
signatures shall be deemed original signatures.
(i) Until such time this Agreement has been fully executed by both Seller and
Purchaser, Seller agrees that the terms set forth herein shall remain totally and completely
confidential and shall not be revealed or disclosed to any person or party whatsoever, except: (i)
with the consent of Purchaser; (ii) as may be disclosed to Seller's attorneys, accountants and
other representatives that are involved in connection with the consummation of this transaction;
(iii) Seller's investors and/or lenders; (iv) as may be required by applicable law; (v) as may be
necessary in connection with assisting Purchaser in obtaining necessary governmental approvals;
and (vi) in connection with any litigation between the parties.
(j) Seller agrees that from and after the Effective Date, it shall cease
marketing of the Property for sale, and that it shall not market the Property for sale throughout
the entire term of this Agreement. Under this section, Seller will not be entitled to bring any
action at law or in equity against Purchaser for agreeing to cease marketing of the Property for
sale from and after the Effective Date if, for any reason, this Agreement is terminated and
Closing does not occur.
(k) If prior to the Closing, a taking by condemnation or eminent domain shall
occur, Purchaser shall have the option to either close the purchase of the Property, in which event
Purchaser shall be entitled to the condemnation awards, if any, or Purchaser may terminate this
Agreement. Such election shall be made by Purchaser's written notice to Seller within ten (l0)
calendar days following written notice from Seller to Purchaser informing Purchaser of the
taking. If Purchaser shall elect to terminate this Agreement pursuant to this paragraph, the parties
shall be relieved of any obligations or liabilities hereunder and the Escrow Agent shall return the
Deposit together with any interest accrued thereon to Purchaser.
([he remainder of this page has been intentionally left blank.)
12
~~
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first set forth above.
WITNESSES:
ER:
Cf:.lv-L J.~
. ::r A-& t..-t \" ~ J-.. ~(;;t (Y\.e..-& .
[Prmt Name]
MALI U PLAZA ON THE SAY, LLC
~.
-
.. --
D.ebnr---b~
[Prmt Name]
CITY OF SUNNY ISLES BEACH
(/ I (
. ATTEST
" .
"':~'A~
... ~'Y: .
, Jane Hines, CMC, City Clerk
\
II .
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
13
~44
ExnmIT "A"
LEGAL DESCRIPTION OF PROPERTY
TATUMS OCEAN BEACH PK PB 5-35 N38FT LOT 91 ALL LOT 92 & S72FT LOT
93 WHICH LIES ON W SIDE OF ROAD AlA LOT SIZE 210 X 140 OR 12350-527
1184 1
~
~
TO:
FROM:
DATE:
RE:
City of Sunny Isles Beach
18070 Collins Avenue, Suite 250
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3 I I 3 Fax
(305) 947-2150 Building Department
(305) 947-5107 Fax
City Commission
Norman S. Edelcup, Mayor
Roslyn Brezin, Vice Mayor
Gerry Goodman, Commissioner
Lewis Thaler, Commissioner
Danny Iglesias, Commissioner
Rick Conner, City Manager
lIans Ottinot, City Allorney
.Jane A. Hines, ClVIC, City Clerk
MEMORANDUM
The Honorable City Commission
HaDs OttiDot, City AttornCY~
July 16,2009
Approval of Agreement of Purchase of Property from Malibu Plaza On The
Bay, L.L.C.
RECOMMENDATION:
It is recommended that the City Commission approve the attached Resolution approving an
Agreement for the purchase of property from Malibu Plaza On The Bay, L.L.C. in the amount of
$4,800,000.00 (Four Million Eight Hundred Thousand Dollars) with a deposit of $480,000.00
(Four Hundred Eighty Thousand Dollars) which deposit shall be credited against the purchase
price at closing.
BACKGROUND:
The City is in need of additional land for open space/park purposes and the property located at
16100 Collins A venue presents a unique opportunity for the City Commission to purchase
additional property for open space/ park purposes.
The owner of the property located at 16100 Collins A venue is willing to accept an offer for the
purchase of said property, in the amount of $4,800,000.00 (Four Million Eight Hundred
Thousand Dollars) with a deposit of $480,000.00 (Four Hundred Eighty Thousand Dollars)
which deposit shall be credited against the purchase price at closing.
TERMS AND CONDITIONS OF AGREEMENT:
Notable terms and conditions of the agreement include the following:
1. Malibu Plaza On The Bay, L.L.C. the owner of 16100 Collins A venue is willing to accept
an offer from the City of Sunny Isles Beach for the purchase of said property, in the amount of
$4,800,000.00 (Four Million Eight Hundred Thousand Dollars) with a deposit of $480,000.00
(Four Hundred Eighty Thousand Dollars) which deposit shall be credited against the purchase
Agenda Item \ 6 ::s
Date 1-1 ~-Dq
(Two Million One Hundred Thousand Dollars) due and payable at closing and $2,700,000.00
(Two Million Seven Hundred Thousand Dollars) due and payable within 2 (two) years from the
date of closing.
2. The City shall execute a promissory note with respect to the final payment of
$2,700,000.00 (Two Million Seven Hundred Thousand Dollars) and the City also agrees to pay
50% (Fifty Percent) of the note within 1 (one) year of closing. The City shall pay the remaining
50% (Fifty Percent) of the note within 1 (one) year of making the initial payment on the note.
3. The City shall pay interest of 5% on the $2,700,000.00 promissory note in a total amount
not to exceed $200,000.00 (Two Hundred Thousand Dollars).
4. The parties agree to execute a triple net sale leaseback agreement for Malibu Plaza On
The Bay, L.L.C. to manage the property until April 30, 2012. Under the sale leaseback
agreement, Malibu Plaza On The Bay, L.L.C. agrees to manage and operate the above described
property until or about April 30, 2012.
5. Upon closing, Malibu Plaza On The Bay, L.L.c. shall be required to execute a sale
leaseback agreement with the City. Under the agreement, Malibu Plaza On The Bay, L.L.C.
agrees to manage and operate the property from the date of closing until April 30, 2012. Upon
closing, Malibu Plaza On The Bay, L.L.c. shall be entitled to all rent and income derived from
the property and they shall also assume all normal management obligations as property manager
and be responsible for all expenses relating to the property, including but not limited to taxes in
the first year of the leaseback agreement and insurance. The City will pay the property taxes in
the final year of the leaseback agreement.
Upon approval of this purchase agreement, staff will take the necessary steps to close on the
property.
HO: fa
/ Attachment