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HomeMy WebLinkAboutReso 2011-1795 RESOLUTION NO. 2011 - ~ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING A PURCHASE AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH, AND DEZER DEVELOPMENT, LLC AND WEINTRAUB INVESTMENTS, LLC, IN SUBST ANTIALL Y THE SAME FORM AS THE A TT ACHED EXHIBIT" A", ATTACHED HERETO, TO PURCHASE REAL PROPERTY FROM THE CITY OF SUNNY ISLES BEACH LOCATED AT 18080 COLLINS AVENUE; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT, PROVIDING THAT SAID AGREEMENT IS REVIEWED FOR LEGAL SUFFICIENCY BY THE CITY ATTORNEY; AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sunny Isles Beach (the "City") is the owner of that certain real property located at 18080 Collins Avenue (the "Alamo site"); and WHEREAS, the City Commission is desirous of continuing to develop public facilities/amenities to further the development of the City as a growing residential population and top tourist destination; and WHEREAS, the City was recently presented with a unique opportunity to develop the Alamo site to continue to provide essential municipal services and to stimulate the redevelopment of commercial properties on the west side of Collins Avenue; and WHEREAS, the City Commission has considered competing letters of intent from Weintraub Investments, LLC/Dezer Development, LLC and Shefaor Development, LLC to purchase the Alamo property to create a first class executive office building with a parking garage to service the office building (the "Project"); and WHEREAS, after careful consideration given to these competing offers to purchase and develop the Alamo site, the City desires to enter into a Purchase Agreement with Dezer Development, LLC and Weintraub Investments, LLC, in substantially the same form as the attached Exhibit "A" to facilitate the development of the Project. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of Purchase Agreement. The Purchase Agreement between the City and Dezer Development, LLC and Weintraub Investments, LLC, attached hereto as Exhibit "A" is hereby approved in substantially the same form. Section 2. Authorization of the Mayor. The Mayor is hereby authorized to execute the Purchase Agreement between the City and Dezer Development, LLC and Weintraub Investments, LLC, attached hereto as Exhibit "A" in substantially the same form, provided that said agreement is reviewed for legal sufficiency by the City Attorney. R2011- Dezer and Weintraub Purchase Agmt 18080 Collins Ave Page lof2 Section 3. Authorization of City Manager and City Attorney. The City Manager and City Attorney are hereby authorized to do all things necessary to finalize negotiations relating to the Purchase Agreement, attached hereto as Exhibit "A" in substantially the same form, and effectuate this Resolution. Section 4. Effective Date. This Resolution will become effective upon adoption PASSED AND ADOPTED this 91h day of November, 2011. ATTEST: C>Y.VV.p Jane A. Hines, CMC, City Clerk APPROVED AS TO FORM AND J.FG& SUFFICIENCY: City Vote: S -d • ,. 1/:_• Secondedby: AF-1-10,0 Mayor Edelcup ✓ (Yes) _(No) Vice Mayor Thaler 1- (Yes) (No) Commissioner Aelion _4, ,_(Yes) (No) Commissioner Gatto ✓' (Yes) Commissioner Scholl (Yes) _(No) _(No) 8201 I- Dezer and Weintraub Purchase Agmt 18080 Collins Ave Page 2 of 2 WEINTRAUB INVESTMENTS. LLC 20900 NE 30TH A VENUE. SUITE 318 A VENTURA. FL 33180 PHONE: 305-557-9398 FAX: 305-466-0135 DEZER DEVELOPMENT, LLC 18001 COLLINS A VENUE. 31ST FL SUNNY ISLES. BEACH. FL 33160 PHONE: 305-932-1000 FAX: 305-936-9908 November 4, 2011 RECEIVED ~.y NOV 0 4 :Dll ,,\" 7f SENT VIA HAND DELIVERY Mayor Norman S. Edelcup Vice Mayor Lewis J. Thaler Commissioner Isaac Aelion Commissioner Jeanette Gatto Commissioner George "Bud" Scholl City of Sunny Isles Beach 1870 Collins Avenue Sunny Isles Beach, Florida 33160 City of Sunny Iskls Bead1 Ol11ce 01 \he City Clerk Re: Purchase and Sale Agreement for Commercial Development of Property located at 18080 Collins Avenue, Sunny Isles Beach, Florida containing approximately 45,000 s.f. and also known as "The Alamo Site" ("Property'? Dear Mayor and Commissioners: Pursuant to that certain letter dated November 3,2011 from Hans Ottinot, City Attorney for the City of Sunny Isles Beach, attached please find the Agreement of Purchase and Sale submitted by Weintraub Investments, LLC ("Weintraub") and Dezer Development, LLC ("Dezer") in support of the purchase of the above referenced Property. Please confirm that consideration of this Agreement will occur on November 9, 2011 before the Commission of the City of Sunny Isles Beach. !in~ ely, / . ''''':)7 ~ ( arren Jay Stamm, Esq. For the Companies il Encl. L:\CITY OF SUNNY ISLES BEACH\DEZER OFFICE COMPLEX-2011\LETTER-WJS TO HANS OTTINOT re-Submission ofPSA (I 1041 I),doc AGREEMENT OF PURCHASE AND SALE 1- This Agreement made this ~ day of tJO\l~}.\e'ta-;--2011, between THE CITY OF SUNNY ISLES BEACH, whose mailing address is 18070 Collins A venue, Sunny Isles Beach, Florida 33160 ("Seller") and DEZER DEVELOPMENT, LLC, and WEINTRAUB INVESTMENTS, LLC, whose mailing addressees are 18001 Collins Avenue, 31s' Floor, Sunny Isles Beach, FL 33160 and 20900 N.E. 30'h Avenue, Ste. 318, Aventura, FL 33180, respectively, and/or "NewCo", an entity to be formed (collectively referred to as the "Buyers"). NOW, THEREFORE, for and in consideration of the mutual covenants, representations, warranties, and agreements contained herein, and for other good and valuable consideration, Seller agrees to sell to Buyers and Buyers agrees to buy from Seller the following described property upon the terms and conditions hereinafter set forth: I. Description of Propertv and Proiect. Seller has fee simple title to that certain real property located in Miami-Dade County, Florida, which is more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (the "Property"). The Project consists ofa Class "A" office building with approximately 146,250 square feet, with attached parking garage, and related amenities to be constructed on the Property by Buyers (collectively the "Project"). 2. Deposit: Purchase Price; 2.1 Deposit. Thirty (30) days from the Effective Date of this Agreement, as defined in Section 32 herein, the Buyers shall place One Million Dollars ($1,000,000.00) in escrow as an earnest money deposit (the "Deposit") to be held in escrow by Chicago Title Company ("Escrow Agent"). Buyers agree that a portion of the I of 17 S) lJ Deposit in the amount of Two Hundred Thousand Dollars ($200,000.00) shall be deemed non- refundable upon (i) the expiration of Thirty (30) days from the Effective Date of this Agreement, and (ii) unappealable approval by the City Commission of the City of Sunny Isles Beach of all terms and conditions as set forth in this Agreement of Purchase and Sale and except as otherwise set forth herein. The remainder of the Deposit, i.e. Eight Hundred Thousand Dollars ($800,000.00), shall becorne a non- refundable payment to Seller if Buyers fail to close after Final Site Plan Approval, as defined herein except as otherwise required herein. Escrow Agent agrees to hold the Deposit in an interest bearing account, with interest earned thereon refunded to Buyers, in accordance with the terms of this Agreement. The Deposit shall be credited against the Purchase Price at Closing, and shall be otherwise subject to the terms and conditions contained herein. 2.2 Purchase Price: Manner of Pavment. The purchase price ("Purchase Price") to be paid by Buyers to Seller for the Property shall be the sum of Seven Million Dollars ($7,000,000.00), subject to credits, prorations and adjustments as provided in this Agreement. The Purchase Price shall be payable by Buyers to Seller at Closing. 3. Time for Acceptance. The Buyers understand and agree that, while this Agreement bears the execution of the Seller, final approval of the transaction contemplated herein rests with governmental approval of a site plan for the Project ("Final Site Plan Approval"). For the purpose of this Agreement, Final Site Plan Approval means the approval of the site plan for the Project by the City Commission of the City of Sunny Isles Beach and the expiration of the thirty (30) days appeal period for said site plan. The full Deposit shall be refunded to Buyer if Final Site Plan Approval has not been obtained within one (I) year from the date of execution of this Agreement by the Parties and at no fault of Buyer. 4. Closing. It is mutually understood that the execution of this Agreement by Buyers 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 2 of 17 SIB ;;if November 9, 20 II. Notice of final City Commission acceptance shall be provided to Buyers after the City Commission meeting at which this matter is presented for approval. If approval by the City Commission is not obtained on or before December 31, 20 II, the full Deposit shall be refunded to Buyer within three (3) business days from December 31, 2011. The Closing shall be held at the City Hall of the City of Sunny Isles Beach, located at 18070 Collins Avenue, Fourth Floor, Sunny Isles Beach, Florida 33160, with Closing to occur no later than thirty (30) days after Site Plan Approval, provided no appeal has been filed. At Closing, the following shall occur: (a) Property: Seller shall execute and deliver to Buyers the following documents with respect to the (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; (iv) A non-foreign affidavit in a form reasonably acceptable to Buyers; (v) Appropriate assignments or bills of sale transferring to Buyers all personal property or property rights (including, but not limited to, the Documents) contemplated by this Agreement or reasonably requested by Buyers in forms reasonably acceptable to Buyers, 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; and (vii) Such other documents that the Title Company may reasonably require in connection with the issuance of the Title Policy to Buyers and the delivery of good and marketable title to the Property from Seller to Buyers as provided in this Agreement, including, but not limited to'M a (;, j'J y tili . 3 ofl7 ~.) j~.1 fYVQ V; 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) Seller and Buyers shall each execute counterpart closing statements in a customary form together with such other documents as are reasonably necessary to consummate the Closing. (c) Seller's costs will be adjusted for and deducted on the Closing Statement. Buyers' cash to close will be delivered by wire transfer drawn on a bank reasonably acceptable to Seller. 5. Development Review and Construction Schedule. Buyers shall submit an application for Site Plan Approval within one hundred and twenty (120) but no later than one hundred and eighty (180) days of the approval of this Agreement by the City Commission, for the construction of an office retail building containing 146,250 square feet of sellable Class A office space plus garage. Upon Final Site Plan approval, Buyers shall within six (6) months of such approval, apply for a Building Permit with the Seller in support of construction and development of the Property and improvements therein. Upon receipt of a Building Permit from the Seller, Buyers shall achieve substantial completion of the Project within twenty four (24) months from the issuance of a Building Permit. This provision shall survive Closing. 6. Pledge of Performance. If Buyers fail to commence construction within twenty four (24) months of Site Plan approval, Buyers shall be obligated to pay upon demand by Seller a failure of performance penalty in the amount of one million dollars ($1,000,000.00) per annum for each one (1) year period from the expiration of such initial twenty four (24) month period that Buyers have not commenced construction. Such amount (if due and owing) shall be paid by Buyers to Seller within five (5) business days of receipt by Buyers from Seller of written demand for such payment provided that no appeal or 4 of 17 (' ~") t..} 1') objection to the Project is filed. This provision shall survive Closing. 7. Pedestrian Crosswalk. Buyers agree to use commercially reasonable efforts and cooperate with the City to petition and effectuate subject to FDOT approval for a pedestrian cross walk and pedestrian traffic signal linking the East and West sides of Collins Avenue between the Property and the City of Sunny Isles Beach Government Center. Notwithstanding the foregoing, any delays in the issuance of the Building Permit due to any FDOT approvals shall not be deemed a default or delay on the part of Buyers and the time frames as set forth in the this Agreement for Purchase and Sale relating to the application and approval of a Building Permit shall be extended accordingly unless and until such time as approval is issued by FDOT in support of such Building Permit. In the event that Seller determines not to petition FDOT for approval of a pedestrian cross walk, the time frames set forth in this Agreement for Purchase and Sale shall be complied with. 8. Waiver of Permit Fees and Donation of "TDRs". In order to facilitate the development of the Project, Seller agrees to waive any building permit fees for the Project, except for fees imposed by other governmental agencies. Upon the approval of the City Commission which shall be given upon the acceptance and approval of this Agreement for Purchase and Sale, the City agrees to donate, without charge, 33,750 square feet of Transfer of Development Rights ("TDRs") to facilitate the development of the Project. The 33,750 square feet ofTDRs shall only be used for the Project and shall not be used for any other property or proposed development. Furthermore, if Buyers fail to close after Final Site Plan Approval, as defined in this Agreement, the City's donation of 33,750 square feet of TDRs shall be null and void. This provision shall survive Closing. 9. Closing Costs. Closing Costs. The parties shall bear the following costs: (a) Buyers shall be responsible for (i) the recording cost of the Deed, (ii) the cost of the Survey (if obtained by Buyers), (iii) the cost of the Commitment and the premium for the Title Policy obtained by Buyers. 5 of 17 ~': ,~ r~\ , ,I..... ..../ U :') (b) Seller shall be responsible for payment of costs of curing any Title Defects, any documentary stamp and surtaxes due on the Deed and the recording costs in connection with any curative instruments relating to same. (c) Each patty shall be responsible for payment of its own legal fees. 10. Prorations. The real estate taxes for the year in which the transaction is closed shall be prorated as of the Closing Date and the pro rata amount thereof shall be credited against the Cash Balance. The proration shall be based upon the previous year's taxes, if the current year's assessment is not available. Seller shall pay all assessments and liens for public improvements against the Property, if any, which are as of the Effective Date certified liens. Buyers shall assume and pay all assessments and liens, if any, for public improvements which become certified subsequent to the Effective Date. Either party may request and shall be entitle to reproration of taxes when the actual amount for the year of Closing is levied. II. Title and Survev. (a) Within thirty (30) days of the Effective Date (hereinafter defined), Buyers shall obtain the following: (i) a title report issued by a title insurance company acceptable to Buyers ("Title Company") enabling a title agent selected by Buyers 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 Property or affect the ability of Buyers to facilitate the development of the Project, and (ii) hard copies of all exceptions to title set forth in the Commitment (collectively, the "Title Evidence"). Buyers may select their own title agent. (b) Buyers shall have the right, at their option and at their sole cost and expense, to obtain an up to date survey of the Property (certified to a date after the Effective Date) prepared in 6 of 17 ('; .' ',' n. \ tIr, '-.J J i) r:JY rfJO r accordance with the minimum technical standards imposed by the Florida Board of Land Surveyors and signed under seal, which survey shall be certified to Buyers and the Title Company ("Survey"). If obtained by Buyers, the Survey shall be considered as a part of the Title Evidence. (c) Buyers shall review the Title Evidence and shall, within ten (10) days following receipt of the Title Evidence, notify Seller in writing ("Title Objection Notice") of any matters in the Title Evidence or Survey adversely affecting the marketability (as determined by the standards adopted by the Florida Bar) of title to the Property or affecting the ability of the Buyers to facilitate the development of the Project ("Title Defects"). Upon 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 fifteen (15) days of the Title Objection Notice ("Title Cure Period") after good faith efforts to do so, Seller shall notify Buyers in writing as to which Title Defects remain uncured on or before the end of the Title Cure Period and Buyers, at Buyers' 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 tenninated, and both parties shall thereafter be released from all further obligations hereunder and the full Deposit shall be returned to Buyer; 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, Buyers shall have the options set forth in (i) or (ii) above. During the period described in (iii) above, Buyers shall have the right, at their sole election, to attempt to cure the Title Defects at their 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 Buyers 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 (~""~ u.l ii' l! .~. 7 of 17 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 be required to cure any Title Defects and Seller shall satisfy any encumbrances or liens at time of closing. 12. No Leasehold Interests. The Seller represents there are no leases, permits, or licenses of any type on the Property which are in full force and effect except a lease agreement between Seller and the current tenant existing on the Property. The lease agreement shall be provided to Buyers within five (5) days of acceptance of this Agreement for Purchase and Sale. The Seller agrees to terminate the Lease no later than forty five (45) days prior to Closing. If there are any persons in possession without written leases, estoppel letters from such person specifying the nature and duration of the occupancy shall be furnished to the Buyers by Seller prior to the expiration of the Inspection Period as defined herein. Seller shall deliver sole possession of the Property to Buyers at Closing free and clear of any leases or tenancies. 13. Remedies on Default of Buver. If Buyers fails to close, and the Seller is not in default hereunder, and title is as required under this Agreement, this Agreement and all rights and obligations of the parties hereunder shall terminate and Seller shall retain the entire Deposit made by Buyers as liquidated and agreed upon damages as its sole and exclusive remedy, and thereafter, the parties hereto shall be released from all obligations hereunder. The parties hereby agree that the damages which Seller would sustain by reason of Buyers' breach are beyond calculation and not subject to determination and the deposit are agreed by the parties to be reasonable measure of damages in the event of Buyers' breach. 8 of 17 ,I': 1 r.... ", :1 ~.1 1,.) j ;'~) /11 14. Remedies on default of Seller. If for any reason, other than failure of Seller to render title to the Property marketable after diligent effort, Seller fails, neglects or refuses to perform this Agreement, Buyers may seek specific performance or elect to receive the return of its Deposit, together with any interest earned thereon, without thereby waiving any action for damages resulting from Seller's breach. 15. Condemnation. In the event of the institution of any proceedings, or if subject to a bona fide threat of such proceedings, judicial, administrative or otherwise, which shall relate to the proposed taking of any portion of the Property by eminent domain, Buyers may either cancel this Agreement, whereupon the full Deposit shall be returned to Buyers and this Agreement thereupon shall be of no further force and effect, or elect to purchase the Property. If Buyers elects to purchase the Property, Buyers shall be entitled to that portion of any award, damages or other consideration paid or to be paid in connection with such taking or sale to which Buyers would have been entitled had it been the owner of the Property prior to such taking, sale or threat of taking. 16. Brokerage. Seller and Buyers each represent to the other that they have 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 Buyers 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. 9 of 17 ~,:~ \ 1yP% '-Jj~ 'r 17. Use. Seller acknowledges that the Property may be used for any permitted uses under the Seller's zoning code. Buyer acknowledges and agrees that it will use the Property to construct a +/- 146,250 square foot Class A executive and professional office building. 18. Hazardous Substances and Toxic Waste. Seller represents and warrants that to the best knowledge of Seller no hazardous substance or toxic waste are or have been stored upon the land or used in connection with the land, nor, to its knowledge are any hazardous substances or toxic waste or other pollutants contained upon or under the land or being discharged from the land directly or indirectly into any body of water. Seller knows of no breach of applicable laws or regulations, nor of any underground tank located on or under the property. To Seller's best knowledge, neither Seller nor any of its affiliates have generated, recycled, reused, sold, stored, handled, transported or disposed of any Hazardous Materials 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 Materials. In the event that Buyers discover the existence of any Hazardous Materials within Thirty (30) days from the Effective Date of this Agreement (hereinafter referred to as "Enviromnental Due Diligence Period"), the Buyers shall, within seven (7) days following such discovery, notify the Seller in writing ("Hazardous Materials Notice") of the existence of any Hazardous Materials Upon receipt of such notice from the Buyers, the Seller agrees to remediate the identifiable Hazardous Materials issue; provided however, that Seller shall have no obligation to spend more than One Percent (1 %) of the Purchase Price to cure any Hazardous Materials defects. In the event that Seller is unable to satisfactorily remediate the Property to provide Buyer with a site that is satisfactory to 10 of 17 ~':i'.) I'll \ nifh '"'''' F I Buyer and to permit Buyer to close on the property and receive Site Plan Approval, Buyer shall have the unilateral right to notify Seller and to terminate this Agreement and receive back the full Deposit.-1n..the event the costs to remediate the Hazardous Materials exceed I % of the Purchase Price, and if Buyers do not elect to exercise their unilateral right to terminate this Agreement, then any additional costs to remediate the Hazardous Materials shall be the sole responsibility of the Buyers. During the 30 day Environmental Due Diligence Period, the Buyers, including their agents, employees and representatives, shall have access to the Property with full right to inspect the Property and to conduct any and all inspections, investigations and tests thereon related to Hazardous Materials and Toxic Waste. 19. Inspection. Buyers, its agents, employees and representatives shall have access to the Property within ten (10) days of the Effective Date 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 Buyers, its counsel, licensed engineers, surveyors, appraisers, or other representative may deem reasonably necessary ("Due Diligence Investigations") provided proper notice is given to Seller and all agents are accompanied by Sellers representative with the understanding to maintain full confidentially and not to disturb Seller's Tenant. Any Due Diligence Investigations of the Property by Buyers and all costs and expenses in connection with Buyers' Due Diligence Investigations of the Property shall be at the sole cost of Buyers and shall be performed in a manner not to unreasonably interfere with Seller's ownership of the Property. Buyers shall remove or bond any lien of any type, which attaches to the Property by virtue of any of Buyers' Due Diligence Investigations. Upon completion of any such Due Diligence Investigations, Buyers shall restore any damage to the Property caused by Buyers' Due Diligence Investigations except in the event of any gross negligence or misconduct by Seller or its II of 17 Florid Wn . rtfJ r agents. Buyers hereby indemnify and hold Seller harmless, to the limit of Section 768.28 (:! J"' I..,) J i'-:i Statutes from all loss, cost or expense, including, but not limited to, reasonable attorneys' fees and court costs resulting. from Buyers' Due Diligence Investigations in connection with the Property. Notwithstanding anything contained herein to the contrary, Buyers shall not indemnify or hold Seller harmless with respect to, and Buyers 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. In the event the transaction does not close, Buyers will, upon written request, provide Seller all work product and information during due diligence at no cost or expense to Seller. Within ten (10) business days of the Effective Date, Seller shall deliver to Buyers hardcopies of any surveys, engineering reports, inspections reports and environmental studies, if any, which Seller has in its possession for Buyers' review. Additionally, Seller shall provide Buyers such other documentation as Buyers may reasonably request with respect to the Property. Seller shall only provide the foregoing reports to the extent Seller has same in its possession. This provision shall survive Closing. 20. Cooperation. During the development of the Project, the City, to the extent permitted by law, shall cooperate and assist Buyers in the applications for and processing of any and all other development approvals with respect to the development of the Project (including, without limitation, any building permit requested by the Buyers) as may be required to allow the construction of the Project requested by the Buyers as long as and to the extent that the Project is consistent with the terms of this Agreement and as long as such cooperation and assistance does not include the exercise of the City's police power or arise out of the exercise of the City's powers when acting in a quasi-judicial capacity. The City will process the Site Plan application in a timely fashion; provided, however, nothing contained herein sh II 12 of 17 tvl1 1"'.1'''', I\,\:! J.: \.,.;' J ;~) obligate the City to expend any funds in support of any such applications, except for the waiver of building permit fees and the donation of Transfer of Development Rights ("TDRs"). 21. Police Powers. NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT OR RESTRICT THE POWERS AND RESPONSIBILITIES OF THE CITY IN ACTING ON APPLICATIONS FOR COMPREHENSIVE PLAN CHANGES, OR APPLICATIONS FOR ANY OTHER DEVELOPMENT APPROVALS BY VIRTUE OF THE FACT THAT THE CITY MAY HAVE BEEN REQUIRED TO CONSENT TO SUCH APPLICATIONS AS A PROPERTY OWNER OR OTHERWISE. THE PARTIES FURTHER RECOGNIZE AND AGREE THAT THESE PROCEEDINGS SHALL BE CONDUCTED OPENLY, FULLY, FREELY AND FAIRLY IN FULL ACCORDANCE WITH LAW AND WITH BOTH PROCEDURAL AND SUBSTANTIVE DUE PROCESS TO BE ACCORDED THE BUYERS AND ANY MEMBER OF THE PUBLIC. NOTHING CONTAINED IN THIS AGREEMENT SHALL ENTITLE THE BUYERS TO COMPEL THE CITY TO TAKE ANY SUCH ACTIONS, SAVE AND EXCEPT THE CONSENTS TO THE FILING OF SUCH APPLICATIONS FOR LAND USE APPROVALS, REZONINGS, COMPREHENSIVE PLAN AMENDMENTS OR OTHER REQUIRED APPROVALS, AS MORE FULLY SET FORTH HEREIN, AND TO TIMELY PROCESS SUCH APPLICATIONS. 22. Attornevs' Fees and Costs. In the event either party hereto shall default in the performance of any of the terms and conditions of this Agreement, the prevailing party shall be entitled to recover all costs, charges and expenses of enforcement, including reasonable attorneys' fees incurred in a trial or appellate proceeding. 23. Parties in Interest. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and assigns of the Buyers and Seller. 13 of 17 ~ (') " ", t) J i'J 24. Entire Agreement. This Agreement constitutes the entire Agreement between the parties relative to the transaction contemplated herein and neither this Agreement nor allY term or provision hereof may be changed or waived except by an instrument in writing and executed by Seller and Buyers. 25. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Florida. 26. Notices. Notices under this Agreement shall be deemed served when sent by prepaid overnight courier or deposited in the United States mail, registered or certified mail, return receipt requested with sufficient postage and directed to the address specified as follows: SELLER: Alan Cohen, City Manager City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 WITH COpy TO: Hans Ottinot, Esq., City Attorney City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 BUYERS: Abraham Weintraub, Managing Member Weintraub Investments, LLC 20900 NE 30th Avenue, Suite 318 Aventura, FL 33180 Gil Dezer, Manager Dezer Development, LLC 1800 I Collins Ave. 31't Floor Sunny Isles Beach, FL 33160 Abraham Weintraub/GiJ Dezer c/o "NewCo" 1800 I Collins Ave. 31 st Floor Sunny Isles Beach, FL 33160 WITH COpy TO: Counsel for Buyers 14 of 17 (: ,\ ~"': ,:.1,' .... J .. rvItr 27. Insertion of Corrections or Modilications. Typewritten or handwritten provisions inserted on this Agreement or on the exhibits hereto (and initialed by both parties) shall control all printed provisions in conflict therewith. 28. Time. Time is of the essence in this Agreement. 29. Counteroarts. This Agreement may be executed simultaneously or in counterparts, each of which together shall constitute one and the same Agreement. 30. Assignability. Buyers may not assign their rights hereunder without Seller's consent unless such assignment is to a related party or entity to be formed by Buyers for the ownership, construction and/or development of the Project. Upon any such assignment, any such assignee shall agree to be bound by the terms and conditions set forth in this Agreement. 31. Agreement not to be Recorded. This Agreement shall not be recorded in any public records by either party hereto. 32. Effective Date. The effective date of this Agreement ("Effective Date") shall be date the Agreement is executed by the City. (Remaillder of page illtelltiollally left blallk) 15 of 17 (\ '~~ J I",) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered, all of which has been done on the date shown below for each party. SELLER: CITY OF SUNNY ISLES BEACH , . '. . . ATTEST By:'.'~,AL Jane Hines, CMC, Seller Clerk B . ttorney ,. . 1" . . BUYER: WEINTRAUB INVESTMENTS, LLC. WITNESS: [Prmt Name) BY ~ "/1.-1111 A raham Weintraub, Managing Member BUYER: DEZER DEVELOPMENT, LLC BY: WITNESS: (Pnnt Name) 16 of 17 (1 :1 ~-) ",);1.-' oJ.. J Exhibit "A" LEGAL DESCRIPTION All of parcel I, less the North 150 feet, as measured along the East line thereof, and less the South 499.145 feet as measured along the East line thereof, of the Replat of Tract "A" SUNNY ISLES SHORES, Section "A" according to the Plat thereof recorded in Plat Book 64, at Page 74 of the Public Records of Miami-Dade County, Florida containing approximately 45,000 sq. ft. rl 17 of 17 ('l } ~'.. ", ., J .~.." ~.Vi";,)