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HomeMy WebLinkAboutCity of Tamarac Resolution R-88-290Temp. Reso. #5187 1 2 KA 4 5 33 34 35 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-88- ��'O A RESOLUTION AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE A PURCHASE AND SALE AGREEMENT WITH JEFFREY L. BERKMWITZ, TRUSTEE, FOR THE PUBLIC WORKS PROPERTY SITE AT THE NORTHEAST CORNER OF COMMERCIAL BOULEVARD AND PINE ISLAND ROAD; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE COUNCIL OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: That the appropriate City officials are hereby authorized to execute a Purchase and Sale Agreement with Jeffrey L. Berkowitz, Trustee, for the Public Works property site at the northeast corner of Commercial Boulevard and Pine Island Road, a copy of said agreement being attached hereto as "Exhibit 1". SECTION 2: This Resolution shall become effective upon adoption. PASSED, ADOPTED AND APPROVED this w�'*day of 1988. ATTEST: NORMAN ABRAMOWITZ MAYOR CAROL A. EVANS CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. RICHARD DOODY CITY ATTORNEY RECORD OF COUNCIL. VOTE MAYOR -_ , ABRAMOWITZ DISTRICT 1:. C/M ROHR DISTRICT 2: V/M STELZER DISTRICT 3: C/M HOFFMAN DISTRICT 4: C/M BENDER ,(�(_2g,ac�0itI PURCHASE AND SALE AGREEMENT This Purchase and Sale Agreement, made and entered into this / /Aof October, 1988 by and between the City of TAMARAC (herein- after referred to as "Seller") and JEFFREY L. BERKOWITZ, Trustee and/or his assigns (hereinafter referred to as "Purchaser"). W I T N E S S E T H: For and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, to each party in hand paid to the other, receipt whereof is hereby acknowledged, as well as in consideration of the promises, cove- nants and agreements herein contained, the parties hereto hereby agree as follows: 1. Purchase and Sale. Seller agrees to sell to Purchaser and Purchaser agrees to buy from Seller that certain parcel of property described in Exhibit "A" attached hereto and made a part of this Agreement; together with (i) all of the improvements located thereon and all and singular the tenements, hereditaments and appurtenances thereto, including all easements, privileges, rights of way, and rights, belonging to or inuring to the benefit of the subject property, and (ii) all transferable licenses or permits issued by any federal, state or municipal authority relating to the development, use, maintenance or occupation of the subject property (the foregoing being hereinafter referred to as the "Realty" or the "Property"). Where reference is made in this Agreement to "Phase I Property" or "Phase II Property", such terms shall mean those portions of the Property designated in Exhibit "A" as the Phase I Property and Phase II Property, respectively. . 2. Purchase Price. The purchase price to be paid by the Purchaser to the Seller for the Property is Two Million Seven Hundred Fifty Thousand and No/100 Dollars ($2,750,000.00) (the "Purchase Price"), of which One Million Nine Hundred Thousand and No/100 Dollars ($1,900,000.00) shall be paid for the Phase I Property (the "Phase I Purchase Price") and Eight Hundred Fifty Thousand and No/100 Dollars ($850,000.00) shall be paid for the Phase II Property (the "Phase II Purchase Price"). The Purchase Price is predicated upon the Realty containing 10.43 acres, net of any existing or required dedications (which shall not be deemed to include easements). If a survey delivered pursuant to paragraph 6 reflects such figure of 10.43 to be incorrect, then the Purchase Price shall be appropriately increased or decreased accordingly, with such increase or decrease, as the case may be, allocated proportionately between the Phase I Purchase Price and the Phase II Purchase Price. Since the area of any dedications may not be known until the platting contemplated by subparagraph 7(b) is completed, the survey shall be recertified after such replatting is finalized, but in any event before the Phase I Closing (as hereinafter defined), to recalculate the "net" acreage of the Realty after said replatting. 3. Phase I Deposit. Simultaneously with the execution hereof by Purchaser, Purchaser shall deliver to Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., as Escrow Agent ("Escrow Agent"), the sum of Five Thousand and No/100 Dollars ($5,000.00) (the "Phase I Deposit") as a deposit on account of the Phase I Purchase Price. By no later than January 10, 1989, Purchaser shall deliver to Escrow Agent a clean, irrevocable letter of credit in the amount of Three Hundred Thousand and No/100 Dollars ($300,000.00) (the "Letter of Credit"). The Letter of Credit shall be issued by a Bank or savings institution located in Dade or Broward County, Florida, in a form reasonably acceptable to Seller, and shall be drawable upon by the Escrow Agent if the transaction contemplated by this Agreement with respect to the Phase I Property does not close in accordance with its terms due to a default by Purchaser without a default by Seller and with no failure of any condition precedent to Purchaser's obligations. The Letter of Credit shall then - 2 - 1�E�Yaydj constitute the Phase I Deposit and Escrow Agent is hereby authorized to draw upon the Letter of Credit in accordance with the terms of this Agreement. Upon delivery by Purchaser to Escrow Agent of the Letter of Credit, Escrow Agent shall return to Purchaser the initial Five Thousand and No/100 Dollars ($5,000.00) Phase I Deposit. Escrow Agent is authorized, and agrees by acceptance thereof, to hold the Phase I Deposit and to disburse the Phase I Deposit in accordance with the terms and conditions of this Agreement as follows: (a) If the transaction contemplated by this Agree- ment is closed with respect to the Phase I Property, then the Letter of Credit shall be returned by Escrow Agent to Purchaser at the Phase I Closing. (b) If the transaction contemplated by this Agree- ment with respect to the Phase I Property does not close due to a failure of a condition precedent to Purchaser's obligations here- under, unless Purchaser waives said failed condition precedent, . the Letter of Credit shall be returned to Purchaser, the trans- action shall be rescinded, and all parties shall be relieved from all further obligations hereunder. (c) If the transaction contemplated by this Agree- ment does not close with respect to the Phase I Property due to a default by Seller, then the Letter of Credit shall at the option of Purchaser be returned to Purchaser, whereupon all parties shall be released from all further obligations hereunder; or in the alternative, Purchaser may seek specific performance of Seller's obligations hereunder; provided, further, that Purchaser shall be entitled to any other legal or equitable remedies available to Purchaser in the event that Seller wilfully breaches its agreement to convey title to the Phase I Property to Purchaser in accordance with the terms hereof. (d) If the transaction contemplated by this Agree- ment with respect to the Phase I Property does not close due to a default by the Purchaser with no default by Seller and with no MM W-&?-;2-. failure of any condition precedent to Purchaser's obligations hereunder, then Seller's sole remedy shall be payment to it of the Three Hundred Thousand and No/100 Dollars ($300,000.00) realized from Escrow Agent's drawing under the Letter of Credit, as liquidated damages, whereupon all parties shall be relieved from all further obligations hereunder. If Purchaser fails to deliver Escrow Agent the Letter of Credit by the date specified above, then Seller's sole remedy shall be payment to it of the initial Phase I Deposit, whereupon all parties shall be relieved from all further obligations hereunder. 4. Phase II� Deposit. At the Phase I Closing, Purchaser shall deliver to Escrow Agent the sum of Eighty -Five Thousand and No/100 Dollars ($85,000.00) as a deposit on account of the Phase II Purchase Price (the "Phase II Deposit"). Escrow Agent shall invest the Phase II Deposit with any commercial bank in Dade or Hroward County in an interest bearing certificate of deposit, savings account or similar savings certificate designated by . Purchaser. Escrow Agent is authorized, and agrees by acceptance thereof, to hold the Phase II Deposit and to thereafter disburse the Phase II Deposit in accordance with the terms and conditions of this Agreement as follows: (a) If Purchaser closes upon the Phase II Property (or any portion thereof), then the Phase II Deposit, together with all interest earned thereon, shall be paid to Seller, and • shall be credited to Purchaser as a portion of the cash to close, at the time of such closing; it being understood and agreed that the Phase II Deposit (and interest thereon) shall be paid to Seller, and Purchaser shall receive credit therefore, on a proportionate basis if Purchaser elects to close on the Phase II Property in stages (as hereinafter provided). (b) If the transaction contemplated by this Agree- ment with respect to the Phase II Property (or any portion thereof) does not close due to a failure of a condition precedent to Purchaser's obligations hereunder, unless Purchaser waives - 4 - _i�d2ra`' A said failed condition precedent, the Phase II Deposit (or remainder thereof) together with all interest earned thereon shall be paid to Purchaser, the transaction shall be rescinded, and all parties shall be relieved from all further obligations . hereunder. (c) If the transaction contemplated by this Agree- ment with respect to the Phase II Property (or any portion thereof) does not close due to a default by Seller, then the Phase II Deposit (or remainder thereof), together with all interest earned thereon, shall at the option of Purchaser be paid over to Purchaser, whereupon all parties shall be released from all further obligations hereunder; or in the alternative, Purchaser may seek specific performance of Seller's obligations hereunder; provided, further, that Purchaser shall be entitled to any other legal or equitable remedies available to Purchaser in the event that Seller wilfully breaches its agreement to convey title to the Phase II Property to Purchaser in accordance with the terms hereof. (d) If the transaction contemplated by this Agree- ment with respect to the Phase II Property does not close due to a default by the Purchaser with no default by Seller and with no failure of any condition precedent to Purchaser's obligations hereunder, then Seller's sole remedy shall be payment to it of the Phase II Deposit, or remainder thereof, together with all interest earned thereon, as liquidated damages, whereupon all parties shall be relieved from all further obligations hereunder. 5. Payment of Purchase Price. The Purchase Price (or portion thereof) shall be paid to Seller at each closing, in cash, certified check or cashier's check. Said cash to close shall be adjusted by any credits, debits or prorations required to be made hereinafter. 6. Evidence of Title. Seller shall, within thirty (30) days from the date of this Agreement, deliver to the attorneys for the Purchaser, Greenberg, Traurig, Hoffman, Lipoff, Rosen & �7= )�- 0a'70 Quentel, P.A., at 1221 Brickell Avenue, Miami, Florida 33131 as evidence of Seller's title to the Realty (the "Title Evidence") a copy of the owner's title policy issued by Lawyers Title Guaranty Fund insuring Seller's title to the Realty, together with a • certified "CRT" Attorney's Title Services computer title search (and name search) covering the period from the effective date of said policy through a date not earlier than the date of this Agreement. The Title Evidence shall be accompanied by "hard copies" of all title exceptions reflected therein. The Title Evidence shall show Seller's title to the Property to be good, marketable and insurable. Seller shall convey a good and marketable title in accordance with the standards adopted from time to time by the Florida Bar, free and clear of all reverter clauses and reservations, whether in favor of any individual or governmental unit, unless Purchaser is able to obtain affirmative title insurance as to such reverter and/or reservations and such reverter and/or reservations do not, and will not, adversely • affect Purchaser's intended development of the Property. Purchaser's attorney shall have thirty (30) days from the date of receiving the Title Evidence to examine the same. If the examina- tion of the Title Evidence (or any other examination of Seller's title to the Realty made by Purchaser or at Purchaser's direction) reflects title to be in a condition other than as represented herein, Purchaser's attorney shall within five (5) days after said thirty (30) day review period, notify Seller of the defects rendering the title unmarketable. Seller shall use Seller's best efforts to cure such defects no later than thirty (30) days after receipt of notice of the same. Seller agrees to remove by payment, bonding or otherwise any lien affecting the Property capable of removal by the payment of money or bonding. Seller shall bring suit, if necessary, to cure any other defect or to buyout or settle any other claim or lien against the Property created by Seller. In the event that Seller does not eliminate all defects as of the date provided hereunder after using its best efforts to do so, Purchaser shall have the option of either (1) extending the time period for Seller to accomplish said corrective title action by up to ninety ( 90 ) days in which event the closing date shall, similarly be extended, (2) closing and accepting the title as is, without diminution of the Purchase Price or any damages against Seller, or (3) cancelling this Agreement in which event Escrow Agent shall return to Purchaser the Deposit, together with all interest earned thereon, whereupon all parties shall be released from all further obligations under this Agreement. If option (1) above is elected and title is not cleared by Seller by the extended title clearance date, Purchaser shall then elect either option (2) or (3) above. 7. Survey. Purchaser may, at its option and at its sole cost and expense, cause a survey of the Realty to be prepared by a surveyor licensed in Florida or professional engineer registered in Florida. The survey shall be of such character that it shall be sufficient to permit a title insurance company to delete any exception in an owner's or mortgagee's policy of title insurance pertaining to discrepancies in area or boundary lines, encroachments or similar matters. The survey shall be certified to Purchaser and, if requested by Purchaser, to the title company insuring title to the realty and said title company's agent. The survey shall further indicate: (a) the perimeter boundaries of the Realty; • (b) the location of all easements within or traversing the Realty, if any; (c) if requested by Purchaser, the location of all roadways traversing, adjoining or bounding the Realty; (d) the number of square feet of land within the Realty and the number of square feet of such land subject to any dedications; and (e) the legal description of the Realty which shall be utilized for all purposes of this Agreement. - 7 - Any defects disclosed in said survey shall be treated as a title defect hereunder. 8. Conditions Precedent. The following shall constitute conditions precedent to Purchaser's obligation to close this transaction (with respect to both the Phase I Property and the Phase II Property), any one or more of which may be waived by the Purchaser: (a) Special Use Exce tion. It shall be a condition precedent to Purchaser's obligation hereunder that Purchaser shall have obtained any special use exception necessary to allow for the construction and full utilization of a gas station with ancillary car maintenance services customarily found at gas service stations (but specifically excluding, without limitation, car painting and car repair services) (the "Gas Station Building") to be located on that portion of the Property located at the northeast corner of the intersection of Commercial Boulevard and Pine Island Road in the approximate size of one acre and in the configuration shown on the Concept Site Plan (as defined below) (the "Station Property"). (b) Master Land Map Amendment. It shall be a condi- tion precedent to both Seller's and Purchaser's obligations here- under that the proposed change in the designation of the Property from "community facilities" to "commercial" in the City of Tamarac Master Land Use Map (Comprehensive Land Use Plan) and the Broward County Master Land Use Map (Comprehensive Land Use Plan) receive all necessary State, county and local approvals so that the Property can be fully utilized for all permissible commercial uses under a commercial B-2 zoning classification. If the fore- going condition precedent is not satisfied at the time of closing and Purchaser elects to exercise its option to extend the closing date as provided in paragraph 12, Seller shall be deemed to have agreed with Purchaser's election. (c) Zoning - It shall be a condition precedent to Purchaser's obligation hereunder that once the above -described �1� zoning is obtained there be no moratorium or other governmental restriction imposed with respect to the zoning of the Property, nor any change in the zoning classification of the Property after the date Purchaser delivers the Letter of Credit, unless such change is approved by Purchaser in its sole and absolute discre- tion. (d) Platting - In the event a replatting or platting of the Property ("Platting") is required in order for Purchaser to develop the Property as contemplated by Purchaser and in accordance with the concept site plan attached hereto as Exhibit "B" (the "Concept Site Plan"), it shall be a condition precedent to Purchaser's obligations hereunder that such Platting be completed prior to closing. In its capacity as owner of the Property and, subsequently, as lessee, Seller shall. fully cooperate in Purchaser's seeking said replatting and shall join in any applications and appear at or cooperate in any hearings which shall be necessary to effectuate the same. (e) Environmental Audit. Within sixty (60) days from the date hereof, Seller shall deliver to Purchaser a "Phase II" environmental audit prepared by Hazen & Sawyer and addressed to Purchaser (or otherwise stating that it may be relied upon by Purchaser to the same extent as if it was addressed to Purchaser), confirming that the Property conforms with all state, local and federal environmental requirements and does not require any corrective action by the owner of the Property to render the Property in compliance with all such environmental require- ments. To the extent said environmental audit indicates that corrective action is necessary, it shall be a condition precedent to Purchaser's obligations hereunder that all such corrective action shall be completed by the Seller, at Seller's cost, prior to closing, except for that corrective action which is not accomplishable until the expiration of the Lease. Notwith- standing the foregoing, if such corrective action will cost more than $100,000.00, and Purchaser does not agree with Seller that it will pay such excess, then Seller may elect not to take such corrective action. In such event, the Deposit shall be returned to Purchaser and both parties released from all further obliga- tions under this Agreement. If the environmental audit indicates that corrective action is necessary, Seller and Purchaser shall both cooperate in good faith to determine the cost of such corrective action and whether this transaction will proceed. (f) Curb -Cuts and Medians. It shall be a condition precedent to Purchaser's obligations hereunder that Broward County and any other required governmental authority approve the median and curb -cuts shown in the Concept Site Plan. Seller, in its capacity as owner of the Property and, subsequently, as lessee, shall cooperate in Purchaser's seeking said approvals and shall join in such applications, appear at such hearings and execute such documents as may be required to effectuate the same. (g) Utility Services. It shall be a condition precedent to Purchaser's obligations hereunder that as of the • date of closing all necessary utilities, including but not limited to electric, telephone, water and sewer, are available to the property line of the Realty with all utility companies having the capacity and the present ability to provide said service to the Improvements as if they were completed on the closing date. No moratorium or other impediment to the providing of any such utility service shall exist as of the closing date. (h) Drainage - It shall be a condition precedent to Purchaser's obligations under this Agreement that the Property have on --site drainage reasonably acceptable to Purchaser or, in the alternative, Seller shall provide Purchaser at closing such easements benefitting and running with the Property as are necessary to allow offsite drainage based on existing drainage retention fees charged by Seller. (i) Tenant-Signage. It shall be a condition prece- dent to Purchaser's obligations hereunder that each of the ten- ants and/or owners of the lots shown on the Concept Site Plan be - 10 - R_ 319 -129 permitted to construct and maintain on each such lot a free- standing sign containing no less than forty (40) square feet. To the extent any permit is necessary to allow the construction of said signs, said permits shall be issuable to Purchaser or its 0 assigns at or prior to the closing without the payment of any extraordinary fees and shall be freely assignable to each of the lot owners and/or tenants without the payment of any additional fees. In its capacity as owner of the Property and, subsequently as lessee, Seller agrees to cooperate with Purchaser in the obtaining of said permits. Purchaser shall endeavor to regulate signage so that same is substantially uniform, after taking into account individual tenant logos. (j) City of Tamarac Restrictions. It shall be a condition precedent to Purchaser's obligations hereunder that between the date that Purchaser delivers the Letter of Credit and the date of the applicable closing, the City of Tamarac shall not have imposed (nor shall the City Council of the City of Tamarac have taken any affirmative action to impose) any additional governmental restrictions or requirements which would adversely affect Purchaser's intended development of the Property pursuant to the Concept Site Plan. (k) Correctness of Warranties. It shall be a condi- tion precedent to Purchaser's obligations hereunder that all representations and warranties made by Seller in this Agreement shall be true and correct. (1) Access to ProTe-ry. It shall be a condition precedent to Purchaser's obligations hereunder that, as of closing, there will be direct, uninterrupted and continuous ingress and egress access for pedestrian and vehicular traffic to and from the Realty to Commercial Boulevard and to Pine Island i Road. (m) No Adverse Action. It shall be a condition preredent to Purchaser's obligations hereunder that Seller shall not institute any action which would adversely affect Purchaser's intended development of the Property. - 11 - 9. Seller's Representations. Seller represents and war- rants to the Purchaser (which representations and warranties shall survive closing) as follows: (a) The Realty is presently zoned B-2. (b) There are no leases, tenancies, or occupancies, whether written or oral, affecting the Property or portions thereof. (c) Seller has not entered into any contracts, sub- contracts, licenses, concessions, easements or other agreements, contracts, service arrangements, either recorded or unrecorded, written or oral, affecting the Property. (d) Neither the whole nor any part of the Property is now, or at closing will become in violation of any code, ordinance, statute or regulation pertaining thereto, and Seller has and will have received no notice of any such violation. Seller shall deliver to Purchaser any notice of such violation received prior to or after closing and shall be responsible to remedy the same. (e) Seller owns and will convey to Purchaser upon closing the fee simple title to the Realty, free and clear of all mechanic's liens, mortgages, encumbrances, obligations, reserva- tions, lawsuits, judgments or any other encumbrances of any sort whatsoever caused by the act or omission by Seller, and there is no existing litigation or known potential litigation with respect to any aspect of any of the Property. In the event that a lien, claim or cause of action should arise before or after closing, resulting from any activities upon or pertaining to the Property, or the operation thereof prior to closing, which, in either case, results from the act or omission of Seller, Seller shall, at its sole cost and expense, defend against such claim or cause of action, and hold Purchaser harmless therefrom, which shall include, but not be limited to, Seller's retaining such attorneys or other persons as may be required to fulfill this indemnifica- tion. - 12 - g�a�v (f) No charges or assessments have been made against the Property which remain unpaid. (g) To the best of Seller's knowledge, the Property does not contain, and there is not located on or about the Property, any of the following: toxic materials, hazardous wastes or hazardous substances (as those terms are defined in the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. § 6901 et ) or the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601 et sec.); asbestos or asbestos -related products; oils; petroleum -derived compounds; or pesticides (all of which are hereinafter referred to as "Hazardous Materials"). No part of the Property has previously been used by Seller for the storage, manufacture or disposal of Hazardous Materials. No complaint, order, citation or notice with regard to air emis- sions, water discharges, noise emissions or Hazardous Materials, if any, or any other environmental, health or safety matters affecting the Property, or any portion thereof, has been issued by any Governmental Authority to the Seller. To the best of Seller's knowledge, Seller has complied with all federal, state and local environmental laws and regulations affecting the Prop- erty. In the event that any Hazardous Materials are discovered subsequent to closing, Seller shall only have liability to Purchaser therefor under this paragraph if such Hazardous Materials were deposited on the Property by Seller or otherwise resulted from Seller's use of the Property during the period of Seller's tenancy under the Lease or arose during Seller's owner- ship or leasing of the Property. Seller's liability under this subparagraph 9(g) shall be limited to $100,000.00 if, and only if, such Hazardous Materials were existing on the Property when the environmental audit described in subparagraph 7(c) was made. (h) The impact fees (exclusive of fees for water and sewer service) payable to the City of Tamarac, Broward County and/or any other governmental agency in connection with the - 13 - e-dig(10 platting of the Property or obtaining building permits for the construction of the Improvements contemplated by the Concept Site Plan shall not exceed approximately $49,000.00 for each story in height of the improvements to be constructed on the Property as contemplated by the Concept Site Plan. 10. Purchaser's Entry on Realty. From and after the execution of this Agreement, Purchaser shall be permitted to erect and maintain such signage on the Realty as Purchaser shall reasonably deem necessary to advertise Purchaser's prospective acquisition of the Realty, and the prospective availability of the Realty for lease, sale and/or construction for third party usage. Said signs shall be located so as not to interfere with Seller's use of the Realty and shall comply with the requirements of the City of Tamarac Code of Ordinances (which Seller, repre- sents do not prohibit such signage). Notwithstanding the foregoing, Purchaser shall not be permitted to erect and maintain such signage on a specific portion of the Phase II Property until it has closed on that portion of the Phase II Property. From and after the date of this Agreement, Purchaser and Purchaser's agents and employees may, upon reasonable notice to Seller, enter upon the Property at such times and at such locations so as not to unreasonably interfere with Seller's use of the Property, for the purpose of taking test borings and conducting such other tests and studies as Purchaser may deem reasonably necessary to develop the Property. Purchaser shall indemnify and hold Seller harmless from any damage or injury caused by Purchaser's entry on the Property and shall not permit any liens to attach to the Property prior to closing on account of Purchaser's activities on the Property. 11. Leaseback of Premises. It is understood that Seller desires to continue to operate the public works facility present- ly located on the Phase I Property for a period of time to follow the Phase I Closing (as hereinafter defined) and, accordingly, Seller shall not deliver possession to the Purchaser of the Phase =10M I Property at the Phase I Closing, but shall continue to occupy and possess the Phase I Property pursuant to the terms of the Lease to be entered into between Seller and Purchaser at closing. Said Lease shall be in form reasonably satisfactory to the parties (with the Lease to be attached as Exhibit "C" to this Agreement within thirty (30) days from the date of this Agreement) and shall provide for the following: (a) The Seller shall pay to the Purchaser monthly rent in advance equal to the amount of interest owed by Purchaser from time to time to Purchaser's lender with respect to the One Million Nine Hundred Thousand and No/100 Dollars ($1,900,000.00) portion of the Purchase Price paid by Purchaser to Seller at the Phase I Closing, provided that Seller's rental payment shall not take into account, and Seller shall not be obligated to pay, interest charged to Purchaser in excess of 1% over the rate quoted from time to time by Citibank as its prime rate, if any. Said sum shall be due on the first (lst) day of each month, and shall be calculated based upon a statement delivered from Purchaser to Seller on the fifteenth (15th) day of each month calculating the amount due in respect to the next succeeding month based upon the relevant interest rate in effect as of the date of said statement. At the end of the Lease term, the Purchaser shall deliver to Seller a statement reconciling the r amount of the interest actually due and owing from the Purchaser to its lender in respect to said One Million Nine Hundred Thousand and No/100 Dollars ($1,900,000.00) and comparing the amount thus calculated with the amount actually paid by the Sel- ler as rent and the difference, if any, shall be adjusted between the parties upon the expiration of the Lease. (b) All real estate taxes, liability and hazard • insurance, assessments and any other expenses pertaining to the Phase I Property shall be paid by the Seller during the term of the Lease. - 15 - K 6 11 e,'-'7 11 1 (c) The Lease shall be a net lease pursuant to which all expenses pertaining to the Property during the term of the Lease, including, but not limited to, all maintenance, security, repairs, etc. shall be paid by the Seller it being the intention of the parties that the Purchaser not incur any expense whatso- ever in connection with the Phase I Property during the term of the Lease. (d) To the extent permitted by law, Seller shall indemnify and hold Purchaser harmless from any loss, liability or expense Purchaser may incur as a result of or arising out of any matters pertaining to the Phase I Property during the term of the Lease, except for such matters directly attributable to the actions of Purchaser, its agents or employees. Seller acknowl- edges and agrees that under subparagraph 10(b) above, Seller shall be obligated to pay (or reimburse Purchaser for the cost of) insurance coverage obtained by Purchaser with respect to the Phase I Property and its ownership thereof. • (e) The Seller shall have (i) vacated the Phase I Property, demolished all of the existing public works facilities and improvements located thereon and removed all debris (including, without limitation, the removal of all underground tanks and the filling of any holes created thereby) and (ii) completed any corrective action required by Seller under subpara- graph 7(c) but not accomplishable until the expiration of the Lease, all at Seller's sole cost and expense, prior to the expiration of the Lease. Seller has the absolute right to the salvage value and the right to remove any and all parts and portions of the facilities and improvements located on the Phase I Property. (f) The Lease shall require Seller to maintain the • Phase I Property in the same condition as existed at the time of the Phase I Closing, except for the demolition called for under subparagraph 7(e) above. 16 (g) The Lease shall terminate on the earlier of: (i) forty five (45) days following receipt of written notice by Purchaser from Seller that the demolition of the public works facilities on the Phase I Property and the clearing of the Phase I Property enabling Purchaser to utilize the same upon closing and all environmentally required corrective work have been completed and paid for by Seller but, unless Purchaser elects otherwise, in no event less than two hundred seventy (270) days after. Seller provides to Purchaser the notice of termination described in the next succeeding paragraph; or (ii) three (3) years from the date of commencement of the Lease. Seller and Purchaser acknowledge and agree that the timely issuance of a building permit for the construction of the Gas Station Building (the "Gas Station Building Permit") is of paramount importance to Purchaser in connection with its development of the Property. Therefore, to assure the availability to Purchaser of this permit, Seller shall provide to Purchaser at least two hundred seventy (270) days prior written notice of the date upon which it reasonably anticipates the Lease will terminate in accordance with this subparagraph (g) and Purchaser, within ninety (90) days after its receipt of said notice, shall furnish to Seller plans and specifications for processing in the form required by the Seller in order to obtain the Gas Station Building Permit. It r shall be a condition precedent to Seller's right to terminate the Lease under item (i) above that Seller shall have either (i) issued to Purchaser the Gas Station Building Permit, or (ii) failed to issue the Gas Station Building Permit to Purchaser solely because Purchaser's submission (including the plans and specifications) shall have failed to meet all applicable require- ments of the City of Tamarac and applicable governmental requirements and Seller shall have notified Purchaser of the specific requirements which Purchaser's submission has failed to meet. Purchaser, at its own cost, will comply with any Broward County Environmental Quality Control Board and/or City of Tamarac - 17 - building code requirements for the issuance of the Gas Station Building Permit. (h) The Lease shall provide that if during the term thereof Seller shall effectuate (or the City Council of Tamarac shall take affirmative action to seek to effectuate) either (i) an adverse change in zoning to the Phase I Property or (ii) the imposition of any additional governmental restrictions or requirements which would prohibit or materially adversely affect Purchaser's intended development of the Property pursuant to the Concept Site Plan so that such development would become economically unfeasible then, within one hundred twenty (120) days after written demand therefrom from Purchaser, Seller shall repurchase the Phase I Property from Purchaser at a price equal to (i) the then fair market value of Property based on a B-2 commercial zoning classification and the availability of the Gas Station Building Permit (which shall be determined in accordance with a procedure to be more particularly provided for in the Lease), plus (ii) "Purchaser's Costs". As used herein, "Purchaser's Costs" means (a) all costs and expenses incurred by Purchaser in connection with its acquisition and ownership of the Phase I Property until the closing of the repurchase but excluding the actual net purchase price of the Phase I Property (including, without limitation, all financing costs (including, without limitation, letter of credit issuance fees), all marketing and advertising costs, and all professional fees), less (i) all payments made by Seller either under the Lease or under this Agreement as reimbursement to Purchaser for such costs and expenses. Since in the event of the repurchase, Purchaser will not close on the Phase II Property, any costs and expenses incurred by Purchaser which relate to the Property shall be . attributable to the Phase I Property. All costs and expenses shall be subject to verification by the Seller's auditors acting reasonably. - 18 - (i) The Lease shall provide that if there is damage or destruction to the improvements located on the Phase I Property which results in the availability of insurance proceeds, Seller shall be entitled to retain same provided that such damage Is or destruction shall not terminate the Lease until Seller has made at least six (6) months rental payments under the Lease or such lesser amount of payments which may be due during the original scheduled term of the Lease, all of which are attr- ibutable to the period after such damage or destruction occurred. Seller and Purchaser each acknowledge that it is obligated to use its best faith efforts to negotiate the Lease during the above -described thirty (30) day period. 12. Closing Dates. The closing of this transaction with respect to the Phase I Property (the "Phase I Closing") shall occur on the later of: (i) one hundred twenty (120) days from the date hereof; or (ii) thirty (30) days following compliance by the Seller with all of the conditions precedent set forth in • paragraph 8 hereof but in any event no later than one hundred eighty (180) days from the date hereof (the "Outside Closing Date"). The closing of this transaction with respect to the Phase II Property (the "Phase II Closing") shall occur within five (5) business days after the date the Lease terminates, provided (i) Purchaser may elect to have such closing occur prior thereto upon written notice of such election to Seller (which notice shall specify the closing date selected by Purchaser), and ( ii ) Purchaser may elect to close on the Phase II Property in a series of "takedowns" of individual lots (as shown on the existing plat) on or before the scheduled date for the Phase II Closing; provided, however, that such takedowns shall be made in sequence starting with the lot contiguous to the Phase I Property and continuing therefrom. In such event, the Purchase Price for each lot shall be $212,500.00 (subject to adjustment as provided in paragraph 2) and each such closing shall be deemed a Phase II Closing. If as of the Outside Closing Date (or the scheduled date of any Phase II Closing) any condition precedent to - 19 - /�_d� -,,4`76) Purchaser's obligations has not been complied with, Purchaser may elect to either: (1) waive said condition precedent and close the transaction in accordance with the terms hereof, (2) rescind the transaction, in which case the Phase I Deposit or the Phase II Deposit (or remainder thereof), together with interest, as the case may be, shall be returned to the Purchaser as provided in paragraphs 3 and 4 hereof, respectively, and the parties shall be relieved from all further obligations hereunder, or (3) extend the particular closing date for up to an additional one hundred twenty (120) days during which time the Seller shall have the opportunity to comply with all of the conditions precedent to Purchaser's obligations hereunder. If option (3) above is elected by Purchaser and any condition precedent to Purchaser's obligations have still not been complied with by the extended closing date, on the extended closing date Purchaser may elect option (1) or (2) above. 13. Closing Costs. Documentary Stamp Tax on any warranty is deed or other instrument of conveyance shall be paid by the Seller. The cost of recording such deed of conveyance shall be paid by the Purchaser. Taxes, if any, insurance and all other proratable items shall be prorated as of the date of closing. As to the Phase I Property there will be no prorations as of the date of closing, all expenses pertaining to the Phase I Property continuing to be the responsibility of the Seller. At the Phase II Closing (or the first Phase II Closing if Purchaser elects to purchase Phase II in a series of takedowns), Purchaser shall receive a credit against the Purchase Price not to exceed $25,000.00 to reimburse Purchaser for loan costs, such as commitment fees, recording charges, appraisal charges, lender's attorneys fees and title insurance premiums, incurred by it in connection with its financing for the purchase of the Phase I Property. 14. Closing Documents. At each closing, Seller shall deliver or caused to be delivered to Purchaser, in form and substance satisfactory to Purchaser, the following documents (the "Closing. DocL:mei,ts") : (a) A fully executed and acknowledged special war- ranty deed to transfer and convey the portion of the fealty then being purchased to Purchaser. (b) An affidavit testifying to the absence of any claim of lien or potential lien known to Seller and further attesting that there have been no improvements to the Property then being purchased for at least ninety (90) days immediately preceding said date of closing. (c) An assignment of any and all assignable municipal, county or state permits or licenses held by Seller pertaining to the Property then being purchased, if any, including, without limitation, a filed certificate of occupancy. (d) Copies of the most recent tax, special assess- ment and water bills, and most recent utility bills pertaining to the Property then being purchased, if any. No later than five (5) business days prior to closing, copies of the fully executed Closing Documents shall be delivered to Purchaser's attorney for inspection. 15. Assessments. All certified liens or pending liens for governmental improvements which have been substantially completed as of the Closing Date shall be paid by Seller. All other pending liens for governmental improvements shall, be assumed by Purchaser. Seller represents that it has no knowledge of any such pending liens. 16. Attorneys' Fees and Costs. In the event of the neces- sity by either party to enforce its rights hereunder, all costs and reasonable attorney's fees of the prevailing party, including attorney's fees incurred through all appellate levels, shall be paid by the other party. 17. Brokerage. Purchaser and Seller agree that there is no real estate broker, salesman or finder involved in this trans- action. Each party does hereby indemnify and hold the other harml,2ss from and against any and all liabilities and expenses in connection with any claim for any commission, compensation or amount otherwise alleged to be due any broker claiming to have - 21 - brought about this transaction, by or through said indemnifying party. 18. Place of Closing. Closings shall be held at the offices of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, 0 P.A., 500 East Broward Boulevard, Ft. Lauderdale, Florida 33394, or at such other place acceptable to Purchaser and Seller; provided, however, that if Purchaser's lender designates a different location for a closing reasonably accessible to the parties, the closing shall be held in such location. On the date of closing, the cash to close shall be held by Escrow Agent for not more than seven (7) business days to allow the recordation of the closing documents and the continuation of the Title Evidence to show title in the condition provided for herein, free and clear of any intervening title objections arising or appearing of record from the date of the last continuation of the Abstract delivered by Seller. If said examination shows any such title defect(s) inconsistent with the title requirements of paragraph 6 . or Seller's representation under subparagraph 9(e), then Seller shall use its best efforts to cure said defects forthwith in accordance with paragraph 5 hereof, and all of the cash proceeds shall be held in such account pending such curative action. If Seller is unable to cure such title defect(s) within sixty (60) days from the date of closing, Purchaser may elect to rescind the transaction or to close the transaction with title in its then existing condition. In the event the transaction is rescinded, the cash to close (including the Deposit), together with all interest earned thereon, shall be paid over to Purchaser, where- upon Purchaser shall simultaneously execute and deliver to Escrow Agent a special warranty deed and any other instruments necessary to convey the Property to Seller. The documentary stamp tax and surtax for any such special warranty deed and any other costs involved in this reconveyance shall be paid by Seller to Escrow Agent whereupon Escrow Agent shall record *he same 19. Seller's Cooperation. Seller agrees, in its capacity as owner of the Property and, subsequently, as lessee, to join in any and all applications for .1icens,2s, permits, approvals and Ci►&M L� consents which Purchaser may deem necessary or expedient in order to obtain zoning, site plan and/or platting approvals, and other governmental and utility consents and approvals, for the develop- ment of the Property, provided that Seller shall not incur any cost in connection therewith. 20. Notices. All notices or other communications given or made pursuant hereto, or for the purposes of invoking or enforcing any of the provisions hereof, shall be in writing b�y registered mail, return receipt requested, with full postage paid, addressed as follows: As to Seller: John Kelly City Manager City of Tamarac 7525 Northwest 88th Avenue Tamarac, Florida 33321 With a copy to: Alan Ruf, Esquire Ruf & Carsky 2455 East Sunrise Boulevard Fort Lauderdale, Florida 33304 As to Purchaser: With a copy to: Jeffrey L. Berkowitz 2665 South Bayshore Drive Suite 1200 Coconut Grove, Florida 33133 Steven J. Kravitz, Esq. Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 1221 Brickell Avenue Miami, Florida 33131 All notices shall be deemed given one (1) business day after mailing as provided above or, if delivered by other means, when actually received. 21. Further Instruments. At Purchaser's request, at any time and from time to time before and after closing, Seller will execute any and all notices advising appropriate parties of the change in ownership of the Property. 22. Merger. All understandings and agreements heretofore had between the parties hereto are merged in this Agreement which alone fully and completely expresses their understanding, and the same is entered into after full investigation, neither party relying upon any such statement or representation not embodied in this Agreement made by the other. 23. Survival. Except where specifically provided else- where herein, all warrai,ties, representations, covenants, obliga- �X= C -e�a(u tions and agreements contained or referred to in this Agreement shall survive the execution and delivery of this Agreement and of any and all documents or instruments delivered in connection herewith and shall survive the closing hereunder and any and all 41 performances in accordance with this Contract. 24. Assignment. Purchaser shall have the right to assign this Agreement and all of its right, title and interest here- under, except that any assignment to an entity in which Jeffrey Berkowitz is not a principal shall require the prior written approval of Seller. After such assignment, Purchaser shall auto- matically be free and released from all obligations hereunder or connected herewith. Seller shall not have the right to assign this Agreement in whole or in party or convey away its rights or obligations under this Agreement. 25. Modification; Successors. This Contract may not be changed or terminated orally. The stipulations aforesaid are to apply to and bind the executors, administrators, successors and . assigns of the respective parties. 26. Plurals. For all purposes of interpretation of con- struction of this Agreement, the singular shall include the plural and the plural shall include the singular. Words of any gender shall include words of any other gender. 27. Captions. Captions and paragraph headings used herein are for convenience only and are not part of this Agreement and shall not be used in construing it. 28. Severabilit . If for any reason any provision or portion of this Agreement is declared or found by a tribunal of competent jurisdiction to be unenforceable or null and void, such provision shall be deemed stricken and severed from this Agree- ment, and the remaining provisions and portions thereof shall continue in full force and effect. 29. Indemnification of Escrow Agent. All parties do here- by release Escrow Agent from any liability for any lass caused by said Escrow Agent and do hereby indemnify and hold Escrow Agent harmless from any loss or liability incurred by Escrow Age -it - 24 - 0 hereunder, except for actions by Escrow Agent of negligence or willful and malicious misconduct. If in doubt as to the disposi- tion of any escrowed funds or documents, Escrow Agent shall be entitled to interplead all or a portion of such escrow funds and documents, and upon payment of such funds or delivery of such documents in the court registry, Escrow Agent shall be relieved of, all further liability in connection with the funds so deposited and documents so delivered. 3o. Entire Agreement. This Agreement contains the entire agreement between the parties hereto, their successors, heirs and assigns, and no change or modification hereof shall be binding upon the parties unless evidenced by an instrument in writing, or unless made in accordance with the provisions hereof. This Agreement shall be governed by the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written..-�_W. SELLER: = - - - Signed, sealed and delivered THE CITY OF TAMARAC v- By: MAYOR a/ 71y GLERK [APPROVED AS TO FORM: TAMARAC GTY ATT Y r 0 0 0 e5F-��, o RECEIPT BY ESCROW AGENT Escrow Agent does hereby acknowledge receipt of a check in the amount of FIVE THOUSAND AND N0/100 DOLLARS ($5,000.00) as the 0 Deposit referred to in this Agreement (subject to clearance). • C� GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN & QUENTEL, F.A. By: f Steven E. Goldman - 26 - (� 1�( I?-y() "Exhibit A" Phase I Lots 6 through 15, inclusive, Block 8 "LYONS COMMERCIAL SUBDIVISION" according to • the Plat thereof, recorded in Plat Book 69, Page 42, of the Public Records` of Broward County, Florida. Phase II Lots 2 through 5, inclusive, Block 8 "LYONS COMMERCIAL SUBDIVISION" according to the Plat thereof, recorded in Plat Book 69, Page 42, of the Public Records of Broward County, Florida. • 11 175 ,R- 8S-Oyb 1 11 1 • x 4 m Id "Miz U %o ' ` 1 li. .