HomeMy WebLinkAboutReso 2012-1901RESOLUTION NO. 2012 - _' ~ 0 \
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, APPROVING A FIRST
AMENDMENT TO THE PURCHASE AGREEMENT BETWEEN THE
CITY OF SUNNY ISLES BEACH AND DEZER DEVELOPMENT, LLC,
IN SUBSTANTIALLY THE SAME FORM AS THE ATTACHED
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 FIRST AMENDMENT TO THE PURCHASE
AGREEMENT; 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 A venue (the "Alamo site"); and
WHEREAS, on or about November 30, 2011, the City and Dezer Development, LLCI
Weintraub Investments, LLC entered into an Agreement of Purchase and Sale for the real
property located at 18080 Collins A venue (the "Purchase Agreement") to create a first class
executive office building with a parking garage to service the office building (the "Project"); and
WHEREAS, the parties desire to enter into a First Amendment to the Purchase
Agreement 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 First Amendment to Purchase Agreement. The First Amendment to
the Purchase Agreement between the City and Dezer Development, LLC, attached hereto as
Exhibit "A" is hereby approved in substantially the same form.
Section 2. Authorization of the Mavor. The Mayor is hereby authorized to execute the First
Amendment to the Purchase Agreement between the City and Dezer Development, LLC"
attached hereto as Exhibit "A" in substantially the same form.
Section 3. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are hereby authorized to do all things necessary to effectuate this Resolution.
Section 4.
Effective Date. This Resolution will become effective upon adoption
Reso Approving First Amendment 10 Purchase of 18080 Collins Ave
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PASSED AND ADOPTED this 19th day ofi\pril, 2012.
ATTEST:
S~/tL1~
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Jane A. Hines,CMC, City Clerk
Moved by:
~1^I'M'\I.<;':;l()r0<;:J? ~U-
C~I~<;';OI0'VL Gt\-ITC'l
Seconded by:
Vote: t;,o
Mayor Edelcup
Vice Mayor Thaler
Commissioner Aelion
Commissioner Gatto
Commissioner Scholl
V(Yes)
---L.LCY es)
v(Yes)
0Yes)
~Yes)
_(No)
_(No)
_(No)
_(No)
_(No)
Reso Approving First Amendment to Purchase of 18080 Collins Ave
Page 2 of2
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. Edclcup, Mayor
Lewis Thaler, Vice Mayor
Isaac Aelion, Commissioner
Jeanette Gatto, Commissioner
George "Bud" Scholl, Commissioner
Alan J. Cohen, City Manager
Hans Ottinot. City Attorney
Jane A. lIines. Cl\IC. City Clerk
MEMORANDUM
TO: Honorable Mayor and City Commission
FROM: Hans Ottinot, City Attorney ~
DATE: April 19, 2012
RE: First Amendment to Purchase Agreement for 18080 Collins Avenue
On or about November 30, 20 II, the City and Dezer Development, LLC/Weintraub Investments,
LLC, entered into an Agreement of Purchase and Sale for the real property located at 18080
Collins A venue (the "Purchase Agreement") to create a first class executive office building with
a parking garage to service the office building (the "Project"). The parties desire to enter into a
First Amendment to the Purchase Agreement to require that Dezer Development, LLC (the
"Buyer") agree to the following:
I. Closing shall occur on or before May 11, 2012;
2. Buyer shall obtain a Site Plan Approval on or before December 1, 2014;
3. Buyer shall grant to City a Right of First Refusal with respect to the Alamo site; and
4. The existing tenant shall remain on the Property for at least four (4) months from the date
of Closing unless the Buyer has agreed to accept the assignment of the Lease Agreement
between the City and Vanguard Car Rental USA, Inc. prior to Closing. Furthermore, the
Buyer shall be entitled to all rents collected by the City after Closing if no assignment has
occurred.
Please note that Weintraub Investments, LLC is no longer involved lt1 the Project based on
information received from Dezcr Development.
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Agenda Item
Date
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FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This First Amendment to Agreement of Purchase and Sale ("First Amendment") is made
and entered into effective as of the 30~day of A~ ,2012, by and 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, whose mailing address is 18001 Collins
Avenue, 31st Floor, Sunny Isles Beach, FL 33160 ("Buyer").
RECITALS:
WHEREAS, Seller and Buyer previously entered into that certain Agreement of
Purchase and Sale on or about November 30, 20 II, for fee simple title to that real property
located at 18080 Collins Avenue, Sunny Isles Beach, Florida 33160 (the "Property"); and
WHEREAS, Seller and Buyer desire to enter into this First Amendment and amend the
terms of the Agreement, as hereinafter provided.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer do hereby agree as follows:
1. Definitions. All terms used in this First Amendment which are defined in the original
Agreement shall have the same meaning in this First Amendment, unless otherwise
specifically defined herein. Any conflict or inconsistency between definition and terms
between the original Agreement and the First Amendment shall be governed by the
definition in the First Amendment.
2. Time for Acceptance.
Section 3 of the original Agreement ("Time for Acceptance")
shall be deleted in its entirety.
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3. Closing. Section 4 of the original Agreement ("Closing") is hereby amended to reflect
that Closing shall occur on or before May 11, 2012.
4. Development Review/Site Plan Approval Deadline. Section 5 of the original
Agreement ("Development Review and Construction Schedule") is hereby deleted in its
entirety and the following substituted language applies: Buyers shall obtain a Site Plan
Approval for the Project on or before December 1,2014. This provision shall survive
Closing.
5. Right of First Refusal. Section 6 of the original Agreement ("Pledge of Performance")
is hereby deleted in its entirety and the following substituted language applies:
Buyer hereby grants to Seller a right of first refusal (the "Right of First
Refusal"), with respect to the Property, subject to the terms and provisions
set forth herein. The tenn of the Right of First Refusal shall begin at
Closing and shall expire upon the earlier of (a) the issuance of a building
permit for the Project or any other project approved by the City
Commission on the Property. (b) Seller's execution and delivery of a
Waiver of Right of First Refusal, or (c) Seller's acceptance of the Offer (as
hereinafter defined), and subsequent reacquisition of the Property. In the
event Buyer receives a written offer to purchase the Property during the
aforementioned term which the Buyer intends to accept (an "Offer"), the
Buyer shall provide written notice of receipt of the Offer to Seller. The
giving of such notice shall constitute an offer by Buyer to sell the Property
to the Seller at the same purchase price as contained in the Offer and
otherwise in accordance with the terms and provisions of the Offer. Not
later than thirty (30) days after receipt of such notice, the Seller may elect
to purchase the Property at the purchase price in accordance with the terms
and provisions of the Offer by delivery to the Buyer of all of the following
within such thirty (30) day period:
(a) Written notice of the election of Seller to acquire the Property;
(b) A check made payable to the attorneys for Buyer, as escrow agent, in
the amount of the deposit set forth in the Offer; and
(c) A duly executed purchase and sale agreement which contains the terms
and provisions of the Offer.
Seller agrees to respond to Buyer's notice in writing within said Ihirty (30)
day period, and if Seller does not elect to purchase Ihe Property pursuant
to the Offer, then (i) the Right of First Refusal shall be cancelled and
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rendered null and void, (ii) Seller shall deliver a recordable Waiver of
Right of First Refusal which shall include the foregoing cancellation
language, and (iii) Buyer shall be free to accept the OtTer and Ihe Property
may be sold and conveyed to the Buyer under the Offer free and clear of
the Right of First Refusal. This provision shall survive Closing and the
Right of First Refusal shall be memorialized by the parties in a
Memorandum of Right of First Refusal to be recorded in the Public
Records of Miami-Dade, which Memorandum shall state that the Right of
First Refusal will be cancelled and no further force and effect upon the
earlier to occur of (a) the issuance of a building permit for the Project or
any other project approved by the City Commission on the Property, as
evidenced by the recordation of an Affidavit by either party with a copy of
the building permit attached as an exhibits, (b) Seller's execution and
delivery of a Waiver of Right of First Refusal in a recordable form, or (c)
Seller's acceptance of the Offer and subsequent reacquisition of the
Property. Seller's Right of First Refusal shall not be assignable. This
provision shall survive Closing.
6. Waiver of Permit Fees and Donation of "TDRs". Section 8 of Ihe original Agreement
shall be amended to strike the last sentence of this section, to wit: "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."
7. Leasehold Interest. Section 12 of the original Agreement ("No Leasehold Interest")
shall be deleted in its entirety and the following substituted language applies:
12.
10113733.4
Leasehold Interest. The existing Lease Agreement between the Seller and
Vanguard Car Rental USA, Inc. (including any amendments thereto, the
"Lease Agreement"), shall be assigned to the Buyer at Closing, and, from
and after Closing, the Buyer shall be entitled to all rents collected
thereunder. At Closing the Seller shall deliver an Estoppel Letter signed
by Seller stating, among other things, (a) that the lease is paid current, (b)
there are no pre-paid rents, (c) there is no security deposit, (d) there are no
defaults by either party thereunder, (e) the partiallermination of 50% of
the leased premises contemplated by the Lease Agreement has taken place
and the tenant has received all requisite funds due to it in connection
therewith (the "Partial Termination"), and (I) the estimated amount that
may be claimed by tenant to be due under Section 12 of the First
Addendum to Lease Agreement dated April _, 2005 (undated), in
connection with the improvements and permanent fixtures purchased by
tenant during the lease term. In consideration of the Buyer's agreement to
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accept assignment of the Lease Agreement, at Closing Buyer shall receive
from Seller a credit from the purchase price in the amount of $108,750.00
representing the termination fee due to tenant if the lease were terminated
at Closing (the "Lease Termination Fee"). Seller hereby agrees to
reimburse, indemnify, defend and hold Buyer (including any successor or
assignee of Buyer, collectively, the "lndemnitees") harmless from any
claims, damages, expenses, costs, obligations or other liabilities
(including, without limitation, reasonable attorneys' fees and courts costs
and costs of investigation) arising or incurred after the date of Closing Ihat
any party claiming by through or under Vanguard Car Rental USA, Inc.
may assert or claim against the Indemnitees in connection with (a)
monetary obligations agreed to by Seller under the Lease Agreement as
part of the eminent domain case settlement, including but not limited to
the Partial Termination, (b) any cost associated with Section 12 of First
Addendum to Lease Agreement in connection with improvements and
permanent fixtures constructed or existed prior to Closing, which sums if
undisputed shall be promptly paid by the Seller upon notice from Buyer
that a claim has been made for the same, and (c) the Lease Agreement
with respect to monetary obligations occurring prior to the date of Closing.
The indemnification and hold harmless provision herein does not apply to
the Lease Termination Fee set forth above which credit has been provided
by the Seller at Closing. This provision shall survive Closing and shall be
restated in the Assignment of Lease to be signed and delivered by the
parties at Closing.
8. Authorization. The parties executing this First Amendment represent and warrant that
they are authorized to execute the same on behalf of the party in which they respectively
represent and can, by their signatures, effectively bind such party to the obligations set
forth herein.
9. Ratification and Conflicts. Except as amended hereby, the original Agreement remains
in full force and effect. All terms, covenants, and conditions of the original Agreement
not expressly modified herein are hereby confirmed and ratified and remain in full force
and effect, and, as further amended hereby, constitute valid and binding obligations of
Seller and Buyer enforceable according to the terms thereof. In the event there is a
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conflict between the terms and provIsions of this First Amendment and the original
Agreement, the terms and provisions of this First Amendment shall control and govern.
10. Successors and Assigns. All of the covenants contained in this First Amendment,
including, but not limited to, all covenants of the original Agreement as modified hereby,
shall be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, legal representatives and permitted successors and assigns.
11. Counterparts. This First Amendment may be executed in multiple counterparts, each
of which shall be an original, but all of which shall constitute one and the same First
Amendment.
[remail/der of page il/tel/tiol/ally left blal/kl
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IN WITNESS WHEREOF, the parties have executed this First Amendment as of the day
and year first written above.
ATTEST
B~~~
Jane Hines. CMC, City Clerk
10113733.4
APPROVED AS
SUFFICIENCY
BY.
Hans Ottinot, City Attorney
BUYER:
Assigns
BY:
Gil Dezer, Manager
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April 19,2012
Hans Ottinot
City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
RE: Development of Property Located at 18080 Collins A velllle, Snnny Isles
Beach, FL
Dear Hans:
Please be advised that pursuant to that certain Agreement of Purchase and Sale entered
into by and between the City of Sunny Isles Beach, Dezer Development LLC and Weintraub
Investments LLC, and specifically pursuant to paragraph 30, please be advised that Weintraub
Investments LLC is no longer a party to the Agreement nor a part of "Newco" or other entity
taking title and closing on the subject property.
Upon receipt and review of this correspondence, please provide the undersigned with
your acknowledgement and consent of this notification.
If you have any questions in the interim, please contact the undersigned.
y
cc: Luis Flores
WJS/mo
18001 Collins Ave, 31" Floor, Sunny Isles Beach, FL 331600305.932.10000 Fax.305.936.9908
o www.Dezer.com
L:\CITY OF SUNNY ISLES BEACH\DEZER OFFICE COMPLEX.2011\LETTER WJS to Ilans Ottinol RE Wcintraub.Newco (041912).docx
~The
Weintraub
Companies
April 19, 2012
Alan Cohen
City Manager
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Re: Agreement of Purchase and Sale for 18080 Collins Avenue ("Alamo Site")
Dear Mr. Cohen:
Notice is hereby given that Weintraub Investments, LLC no longer has an interest in that
certain Agreement of Purchase and Sale dated November 30, 2011, between the City of
Sunny Isles Beach and Dezer Development, LLC and Weintraub Investments, LLC
regarding the above referenced property. All rights, title and interest by Weintraub
Investments, LLC in this Agreement have been assigned to and remain with Dezer
Development, LLC.
This will also confirm that the City of Sunny Isles Beach has no further obligations to
Weintraub Investments, LLC regarding this Agreement.
Thank you for your attention to this matter.
emd;,"y, 0
rA~ C>
~am Weintraub
Managing Member
CC: Hans Ottinot
Warren Jay Stamm, Esq.
20900 NE 30th Avenue, Suite 318, Aventura, FL 33180 Tel. 305-557-9398 Fax 305-466-0135
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AGREEMENT OF PURCHASE AND SALE
1-- .
This Agreement made this -.aQ. day of WI7\1"~Me~2011, between THE CITY OF
SUNNY ISLES BEACH, whose mailing address is 18070 Collins Avenue, Sunny Isles Beach, Florida
33160 ("Seller") and DEZER DEVELOPMENT, LLC, and WEINTRAUB INVESTMENTS, LLC,
whose mailing addressees are 18001 Collins Avenue, 31st Floor, Sunny Isles Beach, FL 33160 and
20900 N.E. 30th 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:
1. Description ofPropertv 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 of a 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 defmed 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
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)
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EXHIBIT "A"
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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 beCome a non-
refundable payment to Seller if Buyers fail to close after Final Site Plan Approval, as deftned 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 tenus 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 ofPavrnent.
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 goyernmental 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 fmal acceptance and approval by the City Commission of the City of Sunny
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Isles Beach pursuant to the necessary vote at a duly called Commission meeting scheduled for
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November 9, 201 I. 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 3 I, 2011, 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 l~t~d ;to, an A ~ )
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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 wiretransfer 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 Pennit with the
Seller in support of construction and development of the Property and improvements therein. Upon
receipt of a Building Pennit 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
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objection to the Project is filed. This provision shall survive Closing.
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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 Govemment 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 FOOT in support of such Building Permit. In the event that Seller determines not to petition
FOOT 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 ofOevelopment Rights ("TORs") 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 of33,750 square feet of TORs 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, (iilthe cost of
the Survey (if obtained by Buyers), (iii) the cost of the Commitment and the premium for the Title
Policy obtained by Buyers.
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(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 party 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.
11. Title and Survey. (a) Within thirty (30) days of the Effective Date (hereinafter defmed), 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
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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 terminated, 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
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of the "Deep" (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.
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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 darnages 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.
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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 ofthis Agreement (hereinafter
referred to as "Environmental 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
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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.Jn..the
event the costs to remediate the Hazardous Materials exceed 1 % 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, inyestigations 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
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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
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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. NOTIlING IN TIIIS AGREEMENT IS INTENDED TO LIMIT OR RESTRICT
THE POWERS AND RESPONSIBILITIES OF THE CITY IN ACTING ON APPLICATIONS FOR
COMPREHENSNE 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 APPLICA nONS 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 TIllS 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. Attorneys' 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 preyaijing 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.
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24. Entire Agreement.
This Agreement constitutes the entire Agreement between the parties relative to the transaction
contemplated herein and neither this Agreement nor any 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
Gi1 Dezer, Manager
Dezer Development, LLC
18001 Collins Ave. 31 st Floor
Sunny Isles Beach, FL 33160
Abraham Weintraub/Gil Dezer
c/o "NewCo"
18001 Collins Ave. 31 st Floor
Sunny Isles Beach, FL 33160
WITH COPY TO: Counsel for Buyers
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27. Insertion of Corrections or Modifications.
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. Counterparts.
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.
(Remainder of page intentionally left blank)
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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
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';". Jarie}'lilies,CM, ,'Seller Clerk
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BUYER: WEINTRAUB INVESTMENTS, LLC.
WITNESS:
LPnnt NameJ
BY ~ I/I"'I~
A raham Weintraub, Managing Member
BUYER: DEZER DEVELOPMENT, LLC
BY:
WITNESS:
[pont Name]
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Exhibit "A"
LEGAL DESCRIPTION
All of parcel 1, 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" accord,ing 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.
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