HomeMy WebLinkAboutCity of Tamarac Resolution R-2010-131-1
Temp. Reso. # 11936
October 1, 2010
Page 1 of 5
RESOLUTION NO. l 3 r
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, APPROVING THE PURCHASE
AND SALE AGREEMENT WITH ELF, LLC; AUTHORIZING
THE APPROPRIATE CITY OFFICIALS TO EXECUTE THE
PURCHASE AND SALE AGREEMENT BETWEEN THE
CITY OF TAMARAC AND ELF, LLC FOR THE CITY TO
PURCHASE REAL PROPERTY LOCATED AT 8261
COMMERCIAL BOULEVARD, WITHIN THE CITY OF
TAMARAC; PROVIDING FOR AUTHORIZATION FOR THE
APPROPRIATE CITY OFFICIALS TO EXECUTE ANY AND
ALL DOCUMENTS NECESSARY TO CLOSE THE
TRANSACTIONS CONSISTENT WITH THE PURCHASE
AND SALE AGREEMENTS AND THE ASSIGNMENTS OF
THE PURCHASE AND SALE AGREEMENTS; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
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WHEREAS, the City Commission of the City of Tamarac (the "City") recognizes the
importance of providing a mechanism for managing economic development within the
City; and
WHEREAS, the City Commission finds that through the acquisition of real property
in specific areas within the City that the municipal government can be a catalyst to
increase jobs, diversify the City's tax base, increase the City's property tax revenues,
increase local shopping and dining options for the City's residents and businesses, create
a sense of place within the City, enhance public perceptions of the City, and create a local
gathering place; and
Temp. Reso. # 11936
October 1, 2010
Page 2 of 5
WHEREAS, City administration has negotiated a Purchase and Sale Agreement
with ELF, LLC, for the acquisition of real property located in the City of Tamarac, legally
described as follows:
Lot 3, less the South 7 feet thereof, Block 7, of LYONS
COMMERCIAL SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 69, Page 42, of the Public Records of
Broward County, Florida.
Folio No. 494109-04-0120
(hereinafter referred to as the "Property"); and
WHEREAS, City administration recommends that the City Commission enter into
the Purchase and Sale Agreement with ELF, LLC for the acquisition of the Property
pursuant to the Purchase and Sale Agreement which is attached hereto as Exhibit "A",
and incorporated herein by reference; and
WHEREAS, prior to the acquisition of the Property, the City shall complete due
diligence as provided in Purchase and Sale Agreement; and
WHEREAS, the City Commission finds that the approval of the Purchase and Sale
Agreement, and the acquisition of the Property serves both a municipal and public
purpose, and is consistent with the City's authority pursuant to Section 166.021, Florida
Statutes; and
WHEREAS, the City Commission finds that it is in the best interest of the citizens
and residents of the City of Tamarac to enter into the Purchase and Sale Agreement with
ELF, LLC.
Temp. Reso. # 11936
October 1, 2010
Page 3 of 5
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA that:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and confirmed
as being true and correct and are hereby made a specific part of this Resolution. All
exhibits referred to in the "WHEREAS" clauses are hereby attached hereto and
incorporated herein by reference.
SECTION 2: The City Commission of the City of Tamarac hereby approves the
Purchase and Sale Agreement with ELF, LLC which is attached hereto as Exhibit "A".
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SECTION 3: The appropriate officials of the City of Tamarac, Florida are hereby
authorized to execute on behalf of the City of Tamarac, Florida, the Purchase and Sale
Agreement between the City of Tamarac and ELF, LLC.
SECTION 4: The appropriate officials of the City of Tamarac, Florida and/or the
City Attorney, are hereby authorized: (a) to obtain at least one real estate appraisal for the
Property; (b) to obtain a Phase I Environmental Audit and/or a Phase II Audit, if warranted,
of the Property; and (c) to obtain a boundary survey of the Property, during the inspection
period as stated in the Purchase and Sale Agreement.
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Temp. Reso. # 11936
October 1, 2010
Page 4 of 5
SECTION 5: The appropriate officials of the City of Tamarac, Florida are hereby
authorized to obtain title insurance on the Property in the amount of the purchase price
from an authorized title insurer in the State of Florida, at City's expense.
SECTION 6: The appropriate officials of the City of Tamarac, Florida are hereby
authorized to fund and to close the transactions contemplated in the Purchase and Sale
Agreement, and upon the occurrence of all conditions precedent, the appropriate officials
of the City of Tamarac, Florida are specifically authorized to execute any and all
documents required to complete the closings, including but not limited to, closing
statements, and standard closing affidavits.
SECTION 7: The appropriate officials of the City of Tamarac, Florida are hereby
authorized to execute, if necessary, an amendment to the Purchase and Sale Agreement
to provide for an extension of time with respect to the City's performance of its obligations
within the due diligence period, as provided in the Purchase and Sale Agreement, up to a
maximum of thirty (30) days.
SECTION 8: All resolutions or parts of resolutions in conflict herewith are hereby
repealed to the extent of such conflict.
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Temp. Reso. # 11936
October 1, 2010
Page 5 of 5
SECTION 9: If any clause, section, other part or application of this Resolution is
held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
SECTION 10: This resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED BY THE COMMISSION OF THE CITY OF TAMARAC,
FLORIDA THIS DAY OF r(/t� 2010.
ATTEST:
PETER M.J. RIC ARDSON, CRM
CITY CLERK
I HEREBY CERTIFY that I
Have approved this
RESOLUTION as to form.
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i
CI :ATTORNEY
CITY OF TAMARAC, FLORIDA
�
BETH TALABISCO, MAYOR
B. TALABISCO�
P. BUSHNELL
D. GLASSER
M. GOMEZ <
H. DRESSLER 4�
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PURCHASE AND SALE AGREEMENT
(Cash Transaction)
THIS PURCHASER AND SALE AGREEMENT is made and entered into as of this
day of , 2010 ("Agreement") by and between the ELF, LLC, a Florida
limited liability company, whose post office address is 231 SW 65th Avenue, Pembroke
Pines, FL 33023 (hereinafter referred to as "Seller") and CITY OF TAMARAC, FLORIDA,
a Florida municipal corporation, whose post office address is 7525 NW 88 Avenue,
Tamarac, Florida 33321 (hereinafter referred to as "Purchaser").
WITNESSETH
In consideration of the promises and covenants herein made, and for other good
and valuable consideration, the receipt and sufficiency of which Seller and Purchaser
acknowledge, Seller and Purchaser hereby agree as follows: Purchaser hereby agrees to
purchase and Seller hereby agrees tosell that certain unimproved real property located at
8261 W. Commercial Blvd., Tamarac, Florida, more particularly described on Exhibit "A°
attached hereto (the "Property"), together with all of Seller's right, title and interest in all
improvements, easements and rights -of -way appurtenant to the Property, all of Seller's
rights (if any) as landlord under all leases of all or any portion of the Property, and all of
Seller's right, title and interest (if any) in the items of personal property located upon the
Property, all upon the following terms and conditions:
1. DEFINITIONS.
The- following terms when used in this Agreement for Purchase and Sale shall have
the following meanings:
1.1 Property. That certain real property located at 8261 W. Commercial
Blvd., Tamarac, Florida, (the "Property) which Property is more particularly described with
the legal description in Exhibit "A," attached hereto and made a part hereof.
1.2 Closing. The delivery of a General Warranty Deed to Purchaser
concurrently with the delivery of the purchase price and other cash consideration to Seller.
1.3 Closing Date. The Closing Date shall occur on or before Twenty (20)
days subsequent to the Effective Date.
1.4 Deed. A General Warranty Deed, in its statutory form, which shall
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convey the Property from Seller to Purchaser.
1.5 Earnest Money. Purchaser shall deliver an initial earnest money
Deposit of Five Thousand and 001100 ($5,000.00) Dollars to Goren, Cherof, Doody & Ezrol,
P.A., 3099 East Commercial Blvd., Suite 200, Fort Lauderdale, Florida 33308 Attn: Donald
J. Doody, Esq. (the "Escrow Agent") within two (2) business days after the Effective Date.
The Earnest Money will be placed and held in escrow by the Escrow Agent at a banking
institution acceptable to Purchaser. The Earnest Money shall be non-refundable upon
expiration of the Inspection Period (as defined in this Agreement), if this Agreement has not
been terminated by Purchaser, as provided in Section 3.2; provided, however, that in the
event of Seller's default or inability to perform its obligations pursuant to this Agreement, the
Escrow Agent will be authorized to disburse the Earnest Money as. Purchaser directs.
1.6 Effective Date. The Effective Date of this Agreement shall be the
date upon its execution by all parties to this Agreement: Seller, Purchaser and the Escrow
Agent.
1.7 SELLER'S Address. Seller's mailing address is 231 SW 65"' Avenue,
Pembroke Pines, FL 33023.
1.8 PURCHASER'S Address. Purchaser's mailing address is 7525 NW
88 Avenue, Tamarac, Florida 33321, with copy to Goren, Cherof, Doody & Ezrol, P.A.,
Attn: Donald J. Doody, Esq., at 3099 East Commercial Boulevard, Suite 200, Fort
Lauderdale, Florida 33308.
1.9 Other Definitions. The terms defined in any part of this Agreement
shall have the defined meaning wherever capitalized herein. Wherever appropriate in this
Agreement, the singular shall be deemed to refer to the plural and the plural to the.singular,
and pronouns of each gender shall be deemed to comprehend either or both of the other
genders. As used in this Agreement, the terms "herein", "hereof' and the like refer to this
Agreement in its entirety and not to any specific section or subsection.
2. PURCHASE PRICE.
Subject to the provisions of this Agreement, the Seller hereby agrees to sell to
Purchaser, and Purchaser hereby agrees to purchase from Seller, the Property previously
identified* on Exhibit "A" for the total Purchase Price of One Hundred Fifty Thousand
Dollars and 00/100 ($150,000.00) Dollars and upon and subject to the adjustments,
prorations, terms and conditions hereinafter set forth.
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• 2.1 Earnest Money. Concurrently with the execution of this Agreement,
Purchaser shall deposit and cause to be placed in an escrow account maintained by Goren,
Cherof, Doody & Ezrol, P.A. ("Escrow Agent") in the amount of Five Thousand Dollars
($5,000.00) Dollars ("Earnest Money").
Purchaser's obligation to close the transaction in accordance with provisions
of this Agreement is contingent upon the Seller's ability to deliver good and marketable title
for the Property in accordance herewith. Should the Seller default hereunder, the
Purchaser shall be entitled to an immediate refund of the entire sum of the Earnest Money
held by the Escrow Agent. At Closing, a copy of the closing statement signed by both
parties hereto shall be conclusive evidence of the Seller's right to receive the Earnest
Money deposit.
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2.2 Balance of Purchase Price. Purchaser shall pay the balance of the
Purchase Price to Seller at Closing pursuant to the terms of this Agreement by check or
wire transfer of readily negotiable funds to an account identified in writing by Seller.
2.3 The Purchase includes:
(a) All right-of-ways, alleys, waters, privileges, easements and
appurtenances which are on or benefit all the Land;
(b) All right, title and interest, if any, of Seller in any Land lying in
the bed of any public or private street or highway, opened or proposed, in front any of the
adjoining Property to the center line thereof. The sale also includes any right of Seller to
any unpaid award to which Seller may be entitled: (1) due to taking by condemnation of
any right, title or interest of Seller and (2) for any damage to the Land due to change of
grade of any street or highway. Seller will deliver to Purchaser at closing, or thereafter on
demand, proper instruments for the conveyance of title and the assignment and collection of
award and damages;
(c) To the extent transferable, all licenses, permits, contracts and
leases, if applicable, with respect to the property.
3. INSPECTION PERIOD.
3.1 Inspections: For a period of time consisting of fifteen (15) days commencing on
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the date Purchaser receives written confirmation from the. Lender that the Lender has
approved the transaction described in this Agreement (see Section 7.2) and expiring at 5:00
p.m. fifteen (15) days after Lender's approval- is received (the "Inspection Period"),
Purchaser shall have the right, at Purchaser's sole cost and expense, to determine that (a)
utility services including, water, waste water, electric, telephone and all other utilities are
available in the proper size and capacity to serve the existing facilities and installed to the
property lines; (b) the physical and environmental condition of the Property; (c) the
character, quality and general utility of the Property; (d) the zoning, land use, environmental
and building requirements and restrictions applicable to the Property; (e) the state of title to
the Property; and (f) if there are' any leases on the Property, or to perform any other
appraisals, inspections or services deemed necessary and. appropriate to Purchaser. Seller
shall furnish Purchaser with all of the following materials in Seller's possession or control
within two(2) business days after the Effective Date, to the extent not previously furnished;
leases and any plans and specifications, building permits and certificate of occupancy, soil
and engineering reports, income and expense statements, surveys, and maintenance and
service contracts, and Seller shall at all times prior to Closing provide Purchaser and
Purchaser's Representatives with access to the Property at reasonable times during normal
business hours on business days for purposes of carrying out such tests, inspections and
investigations as Purchaser deems prudent. This Agreement is contingent upon Purchaser,
at Purchaser's sole cost and expense, obtaining and accepting a satisfactory Phase I
Environmental Audit, and if deemed necessary at its discretion, a Phase II Environmental
Audit for which it will be granted an additional sixty (60) days for inspections. In the event
that any inspections and any review of documents conducted by the Purchaser relative to
the Property during this Inspection period prove unsatisfactory in any fashion, the
Purchaser, at Purchaser's sole discretion, shall be entitled to terminate this Agreement at
any time prior to 5:00 p.m. on the last day of the fifteen (15) day Inspection Period and
Purchaser also agrees to indemnify and hold Seller harmless from any losses, claims,
costs, and expenses, including reasonable attorney's fees, which may result from or be
connected with any acts or omissions of Purchaser during inspections that are done
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pursuant hereto.
3.2 Termination Right: Purchaser shall have the right, exercisable by written
notice by mail or facsimile given to Seller and/or Seller's counsel and Escrow Agent on or
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• before the termination of the Inspection Period to terminate this Agreement at no cost,
penalty or expense for any reason or no reason at all if, in its sole discretion, it is not
satisfied with the results of its investigations of the Property. Upon such termination, the
Escrow Agent will be authorized to deliver the Earnest Money, as directed by the Purchaser,
and the Parties shall have no further rights or obligations pursuant to this Agreement. Seller
shall not be entitled to object to the disbursement of the Earnest Money in such event.
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4. SELLER'S REPRESENTATIONS.
To induce Purchaser to enter into this Agreement, Seller makes the following
representations, all of which, to the best of Seller's knowledge, in all material respects and
except as otherwise provided in this Agreement (i) are now true, and (ii) shall be true as of
the date of the Closing unless Seller receives information to the contrary, and (iii) shall
survive the Closing. In that event, Purchaser shall be provided immediate notice as to the
change to the following representations:
4.1 At all times from the Effective Date until prior to Closing, Seller shall
keep the Property (whether before or after the date of Closing) free and clear of any
mechanic's or materialmen's liens for work or materials furnished to or contracted for, by or
on behalf of Seller prior to the Closing, and. Seller shall indemnify, defend and hold
Purchaser harmless from and against all expense and liability in connection therewith
(including, without limitation, court costs and reasonable attorney's fees).
4.2 Seller has no actual knowledge nor has Seller received any notice of
any litigation, claim, action or proceeding, actual or threatened, against Seller or the
Property by any organization, person, individual or governmental agency which would affect
(as to any threatened litigation, claim, action or proceeding, in a materially adverse fashion)
the use, occupancy or value of the Property or any part thereof or which would otherwise
relate to the Land except for that certain lawsuit filed as Case #2010-20305-CA-01, Miami -
Dade County Circuit Court.
4.3 Seller has full power and authority to enter into this Agreement and to
assume and perform Seller's obligations hereunder in this Agreement. Seller does not and
will not conflict with or result in the breach of any condition or provision, or constitute a
default under, or result in the creation or imposition of any lien, charge, or encumbrance
upon any of the Property or assets of the Seller by reason of the terms of any contract,
mortgage, lien, lease, agreement, indenture, instrument or judgment to which the Seller is a
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party of which is or purports to be binding upon the Seller or which affects the Seller, no
action by any federal, state or municipal or other governmental department, CRA, board,
bureau or instrumentality is necessary to make this Agreement a valid instrument binding
upon the Seller in accordance with its terms.
.4.4 Seller represents that Seller will not, between the date of this
Agreement and the Closing, without Purchaser's prior written consent, which consent shall
not be unreasonably withheld or delayed, except in the ordinary course of business, create
by Seller's consent any encumbrances on the Property. For purposes of this provision the
term "encumbrances" shall mean any liens, claims, options, or other encumbrances,
encroachments, rights -of -way, leases, easements, covenants, conditions or restrictions.
4.5 Seller represents that there are no parties other than Seller in
possession of the Property or any portion of the Property as a lessee.
4.6 Seller shall not list or offer the Property for sale or solicit or negotiate
offers to purchase the Property while this Agreement is in effect. Seller shall use Seller's
best efforts to maintain the Property in its present condition so as to ensure that it shall
remain substantially in the same condition from the conclusion of the fifteen (15) day
• Inspection Period to the Closing Date.
4.7 Seller represents that Seller has no actual knowledge nor has Seller
received any notice that the Land. has been, is presently or is contemplated to be utilized as
a reservoir of hazardous material. As used herein, the term "Hazardous Material" shall
mean any substance, water or material which has been determined by any state, federal or .
local government authority to be capable of posing a risk of injury to health, safety and
property, including, but not limited to, all of those materials, wastes and substances
designated as hazardous or toxic by the U.S. Environmental Protection Agency, the U.S.
Department of Labor, the U.S. Department of Transportation, and/or any other state or local
governmental agency now or hereafter authorized to regulate materials and substances in
the environment (collectively "Governmental Authorky(ies)").
4.8 Pay and discharge, as of the Closing Date, any assessment against
the Property, or any part of the Property, which may become due and payable on or before.
the Closing Date or which is a lien on the Property as of the Closing Date, other than such
property taxes for the current tax year which are to be adjusted in accordance with the
provisions of Section 10.3.
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5. EVIDENCE OF TITLE.
5.1 Title to the Property. Seller shall convey to Purchaser at Closing, by delivery
of a General Warranty Deed, title to the subject Property. Seller shall, within five (5) days of
the Effective Date, order a title insurance commitment issued by a title insurance
underwriter approved and selected by Seller for the Property insuring Purchaser's title to the
Property subject only to those exceptions set forth in the commitment. The costs and
expenses relative to the issuance of a title commitment and an owner's title policy shall be
bome by the Seller.
Purchaser shall have ten (10) days from the date of receiving said
commitment to examine the title commitment. If Purchaser objects to any exception to title
as shown in the title commitment, Purchaser shall notify Seller in writing specifying the
specific exception(s) to which it objects. Any objection(s) of which Purchaser has so notified
Seller, shall be cured by Seller so as to enable the removal of said objection(s) from the title
commitment within ten (10) days after Purchaser has provided notice to Seller. If Seller
shall be unable to cure all objections within the time period set forth in the preceding
• sentence, then Purchaser may (a) terminate this Agreement by written notice to the Seller
within five (5) days after receipt of a cure notice specifying an uncured objection, in which
event all instruments and monies held by the Escrow Agent shall be immediately returned to
Purchaser, or (b) accept such title as Seller is able to convey with a reasonable reduction or
abatement of the Purchase Price.
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5.2 Survey and Legal Description. Purchaser at Purchaser's own expense
shall order. (i) a survey prepared by a registered land surveyor or engineer licensed in the
State of Florida showing the boundaries of the land, and the location of any easements
thereon and certifying the number of acres (to the nearest one thousandth acre) of land
contained in the Property, all buildings, improvements and encroachments; and (ii) a correct
legal description of the Property which, upon approval thereof by Purchaser and Seller (not
to be unreasonably withheld), shall be the legal description used in the deed of conveyance.
The survey and legal description shall be prepared and certified by a surveyor licensed and
registered in the State of Florida and shall comply with the requirements of the survey map
established in connection with the issuance of an owner's title insurance policy on the Land.
The survey shall be certified to Purchaser and the title insurance company issuing the title
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0 insurance.
6. PURCHASER'S REPRESENTATIONS.
Purchaser hereby represents and warrants to the best of Purchaser's knowledge
that all of the following are true and correct:
(a) Purchaser has full power and authority to enter into this Agreement
and to assume and perform all of its obligations hereunder.
(b) The execution and delivery of this Agreement and the consummation
of the transaction contemplated hereunder on the part of the Purchaser does
not and will not violate the City Charter or Code of Ordinances of Purchaser
and will not conflict with or result in the breach of any condition or provision,
or constitute a default under, or result in the creation or imposition of any.
lien, charge or encumbrance upon any of the terms of any contract,
mortgage, lien, lease, agreement, indenture, instrument or judgment to
which the Purchaser is a party.
(c) There is no litigation pending or, to Purchaser's knowledge,
• threatened, against Purchaser or any basis therefore before any court, and
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that there are no actions pending or contemplated by any regulatory
authority or administrative agency that might result in any material adverse
change in the business or financial condition of the Purchaser.
All of the representations, warranties and covenants of Purchaser contained in this
Agreement or in any other document, delivered to Seller in connection with the transaction
contemplated herein shall be true and correct in all material respects and not in default at
the time of Closing, just as though they were made at such time.
7. CONDITIONS PRECEDENT TO CLOSING.
7.1 Purchaser. The obligation of Purchaser to perform Purchaser's other
obligations at the Closing under this Agreement are and shall be subject to the
satisfaction of each of the following conditions at or prior to the Closing, unless
otherwise specified:
A. Title to the Property shall be free of encumbrances other than
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permitted encumbrances.
B. Seller shall have executed and delivered the closing documents to be
executed and delivered by Seller.
C. All of the representations and warranties of Seller contained in this
Agreement shall have been true and correct in all material respects when made, and
shall be true and correct in all -material respects on the Closing Date with the same
effect as if made on and as of such date.
D. - Seller shall have performed, observed and complied in all material
respects with all covenants, agreements and conditions required by this Agreement
to be performed, observed and complied with on Seller's part prior to or as of the
Closing Date.
E. There shall have been no actual or imminent change in the zoning or
other entitlements of the Property from the Effective Date which would adversely
affect the Property or Purchaser's planned development of the Property.
F. The physical condition of the Property shall be substantially the same
on the Closing Date as on the Effective Date.
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7.2 Purchaser and Seller acknowledge that this is a "Short Sale" transaction
subject to the approval of First National Bank of South Miami (the "Lender") that
holds a current mortgage on the Property, and special consideration and provisions
are allowed to the terms and conditions of the Agreement.
Approval of Lender
A. This Agreement is contingent upon:
(i) Lender's approval of the Purchase Price and the terms of this
Agreement and HUD settlement statement;
(ii) Lender's acceptance set forth in writing of a payoff amount
which is less than the balance due on the mortgage loan currently encumbering the
Property; and
(iii) Lender's release and satisfaction. of the mortgage on the
Property upon receipt of the discounted payoff and dismissal of the Lis Pendens
filed in the foreclosure action under that certain lawsuit pending in Case No. 2010-
20305-CA-01, Miami -Dade County Circuit Court.
B. If Seller does not deliver written notice to Purchaser that Lender has
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approved the Purchase Price and the contract terms within ten (10) days from the
Effective Date (the "Approval Deadline"), the Purchaser may within five (5) days
thereafter cancel the Agreement by delivering written notice to the Seller.
C. The Parties agree to extend the Approval Deadline for a period not to
exceed thirty (30) days if Lender requires additional time to approve this short -sale
transaction.
D. Purchaser acknowledges that the Lender is not a party to this
Agreement and, therefore, is not obligated to approve this Agreement. Purchaser
further acknowledges that the Seller and the Brokers are not liable for delays
caused by the Lender, failure of the Lender to approve this Agreement, failure of the
Lender to complete the short -sale after approving this Agreement or any costs and
expenses (such as payments for loan applications, inspections and. appraisal(s)
associated with the delays or the. Lender's failure to approve this Agreement or
complete the short -sale after approving this Agreement.
8. RISK OF LOSS.
• Risk of loss or damage from fire, other casualty, or both, is assumed by Seller until
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the deed described in Paragraph 5.1 hereof is delivered by Seller to Purchaser. In the
event any portion of the Property is destroyed, rendered unleaseable or dysfunctional by fire
or other casualty then the following shall apply:
(a) If the damage, as determined by the insurance adjuster, is not more
than Ten Thousand and 001100 Dollars ($10,000.00): (i) Purchaser
shall complete settlement and all insurance proceeds relating to the
improvements damaged by such casualty loss shall be paid to the
Purchaser, and (ii) Seller shall assign to Purchaser on the date of
Closing the full amount of any proceeds payable under Seller's fire
and extended coverage insurance policy applicable to said damage;
(b) If the damage, as determined by the insurance adjuster, is more than
Ten Thousand and 00/100 Dollars ($10,000.00) DOLLARS,
Purchaser shall have the option to (i) complete the settlement
hereunder and collect all available insurance proceeds relating to the
improvements damaged by such casualty loss, in which case Seller
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• shall pay to Purchaser on the date of Closing the full amount of any
deductible under Seller's fire and extended coverage insurance
policy; or (ii) terminate this Agreement and receive a refund of entire
deposit and interest. Seller warrants that it shall maintain until the
date of the Closing adequate "All Risk" property insurance; and:
(c) In the event the Property, or any portion thereof, is condemned by
any governmental authority under its power of eminent domain or
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becomes the subject of a notice of condemnation, prior to Closing,
Purchaser may elect to terminate this Agreement, in which event the
entire deposit and interest shall be returned to Purchaser and neither
party shall have any further claim against the other, or Purchaser
may elect to complete settlement hereunder, in 'which event Seller
shall assign to Purchaser all of Seller's right, title and interest in and
to any condemnation awards, whether pending or already paid
applicable to the loss of the real property and the improvements
located thereon, and there shall be no adjustment to the Purchase
Price.
9. CLOSING DOCUMENTS.
At closing, Seller shall deliver to. Purchaser a General Warranty Deed, Bill of Sale, if
applicable, No Lien/Gap Affidavit, Non -Foreign Certification in accordance with Section
1445 of the Internal Revenue Code, 1099 Form and any other documents as listed as title
requirements in Schedule B-I of the Title Commitment to assure the conveyance of good
and marketable fee simple title of the Property to the Purchaser. Purchaser shall deliver to
Closing Agent the balance of the Purchase Price (excluding the Earnest Money) subject to
adjustment as set forth in this Agreement.
10. CLOSING COSTS, TAXES AND PRORATIONS.
10.1 Ad Valorem Taxes. Purchaser and Seller shall comply with Section 196.295,
Florida Statutes, with respect to the payment of prorated ad valorem taxes for the year of
closing into escrow with the Broward County Tax Collector's Office. In the event that,
following the Closing, the actual amount of assessed real property tax on the Property for
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• the current year is higher than any estimate of such tax used for purposes of the Closing,
the parties shall re -prorate any amounts paid or credited based on such estimate as if paid
in November. This shall survive the Closing.
10.2 If, as of the Closing Date, the Property shall be (or shall have become) subject
to a special or local assessment or charge of any kind (whether or not yet a lien), then Seller
shall pay all installments due and payable prior to the Closing Date; provided, however, that
any installment payable after the Closing Date but attributable in whole or in part to any
events or periods prior to the Closing Date shall be apportioned at the Closing. Purchaser
shall be responsible for all installments of such assessments payable after closing which are
solely attributable to the period from and after the Closing Date.
. 10.3 Costs. Except as otherwise expressly provided in this Agreement, at the
Closing, Seller shall pay all State, county, town or other transfer and conveyance taxes
(including Florida documentary stamp tax), the cost of recording the Deed, the title
company's search and examination fees, the premium for the title policy and any
endorsements required by Purchaser and other closing documents, the cost of updating the
Survey, and Seller's share of prorations. Purchaser shall pay Purchaser's share of
• proration. Except as otherwise set forth in this Agreement, each Party shall pay their own
reasonable legal fees.
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11. CLOSING DATE AND PLACE.
Provided all of the contingencies set forth in Section 13 hereof are satisfied, the
Closing will take place on or before the expiration of twenty (20) days subsequent to the
Effective Date at the law offices of Goren, Cherof, Doody & Ezrol, P.A located at 3099 E.
Commercial Blvd., Suite 200, Fort Lauderdale, FL 33308. The closing date will be
automatically extended for an additional ten (10) days in the event the Lender's approval
as required in Section 7 is not obtained by Seller.
12. DEFAULT.
In the event of a default by Seller, Purchaser shall have the election of the following
remedies, which shall include the return of the earnest money, and accrued interest as
liquidated damages or equitable relief to enforce the terms and conditions of this Agreement
either through a decree for specific performance or injunctive relief.
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• If the Purchaser shall fail or refuse to consummate the transaction in accordance
with the terms and provisions of this Agreement, all monies on deposit and interest earned
on the deposit shall be immediately forfeited to Seller as agreed upon liquidated damages
and Purchaser shall have no other responsibility or liability of any kind to Seller by virtue of
such default. Seller's sole and entire remedy shall be restricted to retention of the deposit
plus all accrued interest.
In the event of any willful default or intentional or knowing misrepresentation by
Seller, then in additional to the foregoing remedies, Purchaser shall be entitled to recover
from Seller its reasonable attorney fees and if Purchaser terminates this Agreement as a
result of such default or misrepresentation, all of Purchaser's out of pocket costs and
expenses incurred in connection with this transaction.
13. CONTINGENCIES.
Purchaser's obligations under the Agreement is contingent upon the following:
(a) That the Purchaser is fully satisfied with its due diligence investigation conducted
during the investigation period.
• (b) The conveyance of clear and marketable title to the property.
(c) That the environmental audit is satisfactory and acceptable to Purchaser.
(d) An appraisal of the property, acceptable by the Purchaser, that indicates an
•
appraised value equal to or above the Purchase Price.
(e) Approval by a majority of the Tamarac City Commission.
(f) A Dismissal with Prejudice of that certain Case pending in Circuit Court in and for
Miami -Dade County more specifically identified as Case No. 2010-20305-CA-01.
(g) A Release of the Lis Pendens filed in connection with that certain Case pending
in Circuit Court in and for Miami -Dade County more specifically identified as Case No. 2010-
20305-CA-01.
14. REAL ESTATE COMMISSION.
Seller hereby represents and warrants to Purchaser that Seller has not engaged
or dealt with any agent, broker or finder in regard to this Agreement or to the sale and
purchase of the Property contemplated. hereby except for Fortune International Realty
and Brotman Group, Inc. (each a Broker). Seller hereby indemnifies Purchaser and
agrees to hold Purchaser free and harmless from and against any and all liability, loss,
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• cost, damage and expense, including but not limited to attorneys' fees and costs of
litigation both prior to and on appeal, which Purchaser shall ever suffer or incur because
of any claim by any.agent, broker or finder engaged by Seller whether or not meritorious,
for any fee, commission or other compensation with respect to this Agreement or to the
sale and Purchase of the Property contemplated herein. In the event that the transaction
contemplated by this Agreement closes and, only in such event, Seller shall pay all
brokerage fees and commissions to the Brokers in the total amount of ten percent (10%),
five percent (5%) of the Purchase Price to each Broker.
15. ENFORCEABILITY.
If any provision in this Agreement shall be held to be excessively broad, it shall be
construed, by limiting and reducing it, to be enforceable to the extent compatible with
applicable law. If any provision in this Agreement shall, notwithstanding the preceding
sentence, be held illegal or unenforceable, such illegality or unenforceability shall not affect
any other provision of this Agreement.
. 16. NOTICE.
All written notices shall be deemed effective if sent to the following places:
PURCHASER: City of Tamarac, Florida
7525 NW 88 Avenue
Tamarac, Florida 33321
Attn: Jeffrey Miller, City Manager
With Copy to: Donald J. Doody, Esq.
GOREN, CHEROF, DOODY & EZROL, P.A.
3099 East Commercial Boulevard, #200
Fort Lauderdale, Florida 33308
Tel: (954) 771-4500
Fax: (954) 771-4923
SELLER: ELF, LLC
231 SW 651' Avenue
Pembroke Pines, FL 33023
Attn: Carlos Frias
With a Copy to:
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ESCROW AGENT: GOREN, CHEROF, DOODY & EZROL, P.A.
3099 East Commercial Boulevard, #200
Fort Lauderdale, Florida 33308
17. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Florida. Venue shall
be in the Federal or State Courts in Broward County, Florida.
18. ASSIGNABILITY.
Seller may not assign this Agreement without first obtaining written approval from
Purchaser which in the sole discretion of the Purchaser may or may not be agreed to.
This Agreement may be assigned by Purchaser without the prior consent of Seller and at
no penalty, cost or expense to the Purchaser, provided that Purchaser gives Seller prior
written notice of such assignment prior to the Closing Date.
19. ENTIRE AGREEMENT.
All prior understandings and agreements between Seller and Purchaser are merged
in this Agreement and supersedes all prior agreements and negotiations, either oral or
written, with respect to the subject matter of this Agreement and neither Seller nor
Purchaser is or shall be bound by any stipulations, representations, agreements or
promises, oral or otherwise, not printed or inserted in this Agreement. This Agreement
completely expresses their full agreement.
20. AMENDMENT.
No modification or amendment of this Agreement shall be of any force or effect
unless in writing and executed by both Seller and Purchaser.
21. SUCCESSORS.
This Agreement shall apply to and bind the executors, administrators, successors
and assigns of Seller and Purchaser.
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22. COUNTERPARTS:
This Agreement may be executed in two or more counterparts, each of which shall
be taken to be an original and all collectively deemed one instrument. The parties hereto
agree that a facsimile copy hereof and any signatures hereon shall be considered for all
purposes as originals.
23. LITIGATION COSTS:
In connection with any litigation arising out of this Agreement, the prevailing party
shall be entitled to recover from the non -prevailing party all costs and expenses incurred,
including its reasonable attomey's .fees at all trial and appellate levels and post judgment
proceedings.
24. POSSESSION.
Seller shall transfer possession of the Property to the Purchaser on the Closing Date
vacant and free of leases or tenancies.
26. SEVERANCE.
The invalidity or unenforceability of any one or more phrases, sentences, clauses or
sections contained in this Agreement shall not affect the validity or enforceability of the
remaining portions of this Agreement or any part of this Agreement.
26. OPERATION AND MAINTENANCE.
The Property shall be operated and maintained in its present condition, reasonable
wear and tear and damage due to casualty and condemnation excepted, in the ordinary
course of Seller's business until Closing.
27. FIRPTA COMPLIANCE.
Seller and Purchaser agree that, in connection with the sale contemplated herein,
the parties shall comply with Section 1445 of the Internal Revenue Code of 1986, as
amended, and all regulations that are adopted thereunder from time to time.
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• 28. WAIVER.
No waiver of any provision of this Agreement shall be effective unless it is in writing
signed by the party against whom it is asserted, and any waiver of any provision of this
Agreement shall be applicable only. to the specific instance to which it is related and shall
not be deemed to be a continuing or future waiver as to such provision or a waiver as to any
other provision.
29. TIME PERIODS.
Except for the Approval Deadline, all time periods for inspections, contingencies,
deposit(s) and other obligations under this Agreement shall commence from the date Seller .
delivers written notice to Purchaser that this Agreement has been approved by the Lender.
The calculation of the number of days that have passed for any time period described in the
Agreement shall be based on calendar days, unless otherwise expressly set forth herein,
and shall commence on the day immediately following the action or event giving rise to the
commencement of the period and, shall expire at 5:00 p.m. (eastern time) on the last day of
the time period. Furthermore, any time period provided for herein which shall end on a
• Saturday, Sunday or legal holiday in the State of Florida, shall extend to 5:00 p.m. (eastern
time) of the next full business day. The term "business day" as used herein shall not include
Saturday, Sunday and legal holidays in the State of Florida. For all purposes under this
Agreement, the term "eastern time" shall mean either Eastern Standard Time or Eastern
Daylight Time as then currently applicable in Broward County, Florida.
•
30. WAIVER OF JURY TRIAL.
Each party hereto hereby waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out
of or relating to this Agreement -or the transactions contemplated hereby (whether based on
contract, tort or any other theory). Each party hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this Section.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
indicated above:
Witnesses:
PURCHASER:
City of Tamarac, Florida
By:
Signed on:
SELLER:
ELF, LLC, a Florida limi)6firl4iftlty company
Signed on `i
ESCROW AGENT
Accepted and.Agreed to:
GOREN, CHEROF, DOODY & EZROL, P.A.
By: Signed on:
HA20101100722%AGREEMENT OF PURCHASE AND SALE - CLEAN 10.5.10.doc
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Member
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EXHBIT "A"
LEGAL DESCRIPTION
Lot 3, less the South 7 feet thereof, Block 7, of LYONS COMMERCIAL SUBDIVISION,
according to the Plat thereof, as recorded in Plat Book 69, Page 42, of the Public
Records of Broward County, Florida.
Folio No. 494109-04-0120
(SUBJECT TO VERIFICATION BY SURVEY TO BE OBTAINED BY PURCHASER)
W2010\100722\AGREENIENf OF PURCHASE AND SALE - CLEAN 10-5-10.doc
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