HomeMy Public PortalAbout1993-55 Authorizing Mayor to execute agreement with C.G. Rebozo for purchase of PropertyRESOLUTION NO. 93-55
A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA; AUTHORIZING THE MAYOR TO EXECUTE THE
ATTACHED AGREEMENT ON BEHALF OF THE VILLAGE
WITH C. G. REBOZO AND PRECISION VALVE CORP. FOR
THE PURCHASE OF THOSE CERTAIN PARCELS OF REAL
PROPERTY LOCATED IN KEY BISCAYNE, DADE COUNTY,
FLORIDA, AS MORE PARTICULARLY DESCRIBED IN
SCHEDULE "A" ATTACHED TO AND MADE PART OF THE
AGREEMENT; AND PROVIDING FOR AN EFFECTIVE
DATE.
BE IT RESOLVED BY THE VILLAGE COUNCIL OF KEY BISCAYNE, FLORIDA,
AS FOLLOWS:
SECTION 1. The mayor is hereby authorized to execute the
attached agreement on behalf of the Village with C. G. Rebozo and
Precision Valve Corp. for the purchase of real property located in
Key Biscayne, Dade County, Florida at a cost not to exceed
$9,098,518.00.
SECTION 2. This resolution shall take effect immediately upon
adoption.
PASSED AND ADOPTED this 9th DAY OF November , 1993.
R JOHN F. FESTA
VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
VILLAGE ATTORNEY
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into by and between C. G.
Rebozo, and Precision Valve Corp., a New York Corporation
(collectively
Key Biscayne
covenants and
referred to herein as "Seller"), and the Village of
("Purchaser").
In consideration of the mutual
promises set forth in this Agreement and other good
and :luable consideration, the receipt and sufficiency of which
are acknowledged by the parties to this Agreement,
agree to the following terms and conditions.
1. PURCHASE AND SALE. Seller agrees to sell to Purchaser
and Purchaser agrees to purchase from Seller those certain parcels
of real property located in Key Biscayne, Dade County, Florida, as
more particularly described in Exhibit "A" attached to and made a
part of this Agreement (the "Realty"), together with the following
other property:
1.1 All equipment and other items of property (if any)
whatsoever used or useful in the operation, repair and maintenance
of the Realty, situated on the Realty, and owned by Seller;
1.2 All deposits, licenses, permits, and contract rights
pertaining to
1.3
way, riparian
the parties
ownership and/or operation of the Realty;
All strips, gores, easements, privileges, rights -of -
and other water rights, rights to lands underlying
any adjacent streets or roads, and other tenements, hereditament
and appurtenances, if any, pertaining to or accruing to the benefit
of the Realty. All of the Realty, other property, and rights
described in this Section 1 are collectively referred to herein as
the "Property".
2. TIME AND EFFECTIVE DATE. If this Agreement is not
executed and delivered by Seller on or before , at
5:00 p.m., this Agreement shall, after that time, be null and void
and of no further force and effect. The date of this Agreement,
for purposes of performance, shall be the date when the last one of
Seller and Purchaser has executed this Agreement, and this
Agreement has been formally approved by the Village of Key Biscayne
Council (the "Effective Date").
3. PURCHASE PRICE. The total purchase price (the "Purchase
Price") to be paid by Purchaser to Seller for the Property is Nine
Million Ninety Eight Thousand, Five Hundred Eighteen and No/100
Dollars ($9,098,518.00). The Purchase Price is based upon $22.00
per square foot calculated on a property size consisting of
approximately 413,569 square feet of Property. If pursuant to a
survey of the Property performed by Purchaser pursuant to paragraph
5.2 herein, it is determined that the square footage of the
Property is greater than or less than 413,569 square feet, the
Purchase Price shall be adjusted accordingly based on $22.00 per
square foot.
4. DEPOSIT.
4.1 To secure the performance by Purchaser of
Purchaser's obligations under this Agreement, Purchaser shall
deliver, upon execution of this Agreement by both parties, to the
law firm of Weiss Serota & Helfman, P.A. Trust Account, as escrow
agent (the "Escrow Agent"), the sum of Twenty Five Thousand and
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No/100 Dollars ($25,000.00) by check. Upon expiration of the
Inspection Period as defined in paragraph 13.2 hereinbelow,
Purchaser shall deliver to Escrow Agent an additional deposit in
the sum of Three Hundred Seventy Five Thousand and No/100 Dollars
($375,000.00), the proceeds of which together with the initial
deposit shall be held in trust as an earnest money deposit (the
"Deposit") by Escrow Agent, and disbursed only in accordance with
the terms of this Agreement. Notwithstanding the foregoing, if
requested by Seller in writing, Purchaser shall pay the deposit to
Chicago Title Insurance Company as Escrow Agent; Seller shall pay
all fees and costs charged by Chicago Title Insurance Company for
its services as Escrow Agent. Escrow Agent shall use its good
efforts to invest the Deposit in an interest bearing account,
certificate of deposit or repurchase agreement maintained with or
issued by a commercial bank or savings and loan association doing
business in Dade County, Florida. All interest accrued or earned
on the Deposit shall be paid or credited to Purchaser except in the
event of a default by Purchaser, without any default of Seller, in
which event the interest shall be disbursed to Seller, together
with the Deposit, as liquidated damages in accordance with Section
8 below. Purchaser and Seller acknowledge that if the Deposit is
at any time in excess of $100,000 then it shall not be insured, and
both parties hold Escrow Agent harmless from all losses and costs
and liabilities which may accrue or be incurred related to such
lack of insurance.
4.2 The Purchase Price shall be paid to Seller as
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follows:
$ 400,000.00
$ 8,698,518.00
the Deposit described in Section 4
of this Agreement, which shall be
paid to Seller at Closing;
approximately, in cash at Closing,
subject to prorations and
adjustments as provided in this
Agreement, to be paid by cashier's
check [drawn on a Dade County,
Florida, bank or savings
institution] or by federal wire
transfer.
$9,098,518.00 Total Purchase Price.
5. TITLE.
5.1 Within twenty (20) days of the Effective Date,
Seller shall, at Seller's expense, deliver to Purchaser's
attorneys, Weiss Serota & Helfman, P.A., Attention: Stephen J.
Helfman, Esq. a complete Abstract of Title setting forth all
matters of record affecting the title to the Realty from the
earliest public records to a date subsequent to the date of this
Agreement. The Abstract shall, at Seller's expense, be recontinued
or, at Purchaser's election, a computer title update shall be
obtained, within ten (10) days before Closing. The Abstract and
update shall show Seller to be vested with good, marketable and
insurable fee simple title to the Realty, free and clear of all
liens, encumbrances, leases and tenancies, except the following
permitted exceptions (the "Permitted Exceptions"):
5.1.1 Ad valorem real estate taxes for 1993 and
subsequent years;
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5.1.2 All applicable zoning ordinances and
regulations; and
5.1.3 Covenants, conditions, restrictions,
rights -of -way and easements which do not affect the marketability
and insurability of the Property;
Title shall be deemed good, marketable and insurable only if
Purchaser can obtain, at Purchaser's expense, a commitment for an
Owner's ALTA Marketability Policy from Attorneys' Title Insurance
Fund, Inc., or other national title insurer reasonably acceptable
to Purchaser, at standard rates, containing no exceptions other
than the Permitted Exceptions.
5.2 Within the time period for examining title,
Purchaser may order, at Purchaser's expense, a survey (the
"Survey") of the Realty meeting the minimum technical standards of
the Florida Board of Land Surveyors, certified to Purchaser and to
Purchaser's title insurer and prepared (or recertified) as of a
date subsequent to the date of this Agreement, setting forth the
total number of square feet and acres in the Realty and the
location of all improvements, utility and other easements, either
visible or recorded, and recording references of them, and
elevation and flood zone information. If the Survey shall reflect
any encroachment, overlaps, unrecorded easements or similar rights
in third parties, or any other adverse matter not specifically
provided for in this Agreement, then the same shall be deemed a
"title defect" to be dealt with as provided in Section 5.3
hereinbelow. The legal description on the Survey shall become
Exhibit "B" which shall be attached and become part of this
Agreement and which shall control in the event of any discrepancies
between it and Exhibit "A".
5.3 Purchaser shall examine the Abstract and the Survey,
and if Purchaser finds title to be defective, Purchaser shall,
timely notify Seller in writing specifying the title defect(s).
If Purchaser has given Seller timely written notice of defect(s)
and the defect(s) render the title other than as represented in
this Agreement, Seller shall use Seller's best efforts to cause
such defects to be cured by the date of Closing. Seller agrees to
remove by payment, bonding, or otherwise any lien against the
Property capable of removal by the payment of money or bonding. At
either party's option, the date of Closing may be extended, if
necessary, for a period not to exceed sixty (60) days for the
purpose of eliminating any title defects. In the event that Seller
does not eliminate such defects as of the date of Closing as the
same may be extended under the preceding sentence, or if any new
"title defects" appear from the date of certification of the
Abstract through the date of Closing, which Seller does not
eliminate as of the date of Closing, Purchaser shall have the
option of either: (i) closing and accepting the title "as is,"
without reduction in the Purchase Price (except for any lien or
title defect that can be removed by the payment of money or bonding
by Seller) and without claim against Seller for such title defects,
in which event Closing shall take place ten (10) days after notice
of such election, or on the Closing Date, whichever is later; or
(ii) canceling this Agreement, in which event Escrow Agent shall
return the Deposit together with all interest earned thereon to
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Purchaser. Upon such return of the Deposit, both parties shall be
released from all further obligations under this Agreement, unless
such defects were caused by Seller's willful act or willful
omission, in which event Seller shall remain liable to Purchaser
for damages caused by the defects.
5.4 The Closing shall be in escrow unless Seller shall
execute at Closing an affidavit and indemnification agreement,
acceptable to Purchaser's tits insurer, for "gap coverage." If
such "gap coverage" is not obtained, the following shall be the
escrow procedure: The deed shall be recorded and the Abstract
continued at Purchaser's expense, to show title in Purchaser,
without any encumbrances or change from the date of the last
certification on the Abstract which would render Seller's title
unmarketable and the proceeds of the sale shall be held in escrow
by Escrow Agent for a period of not longer than five (5) business
days from and after Closing. If Seller's title is found to be
unmarketable, Purchaser shall, within said five (5) day period,
notify Seller in writing of the defect and Seller shall have thirty
(30) days from date of receipt of such notification to cure the
defect. In the event Seller fails to timely cure said defect, all
monies paid under this Agreement shall, within five (5) days after
written demand from Purchaser, be returned to Purchaser and,
simultaneously with such repayment, Purchaser shall vacate the
Property and reconvey it to Seller by special warranty deed. In
the event Purchaser fails to give timely notice of title defects,
Purchaser shall take title as is but without waiving any rights
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against Seller as may be available to Purchaser by virtue of
warranties contained in the deed.
5.5 The provisions of this Section 5 shall survive the
Closing.
6. SELLER'S REPRESENTATION, WARRANTIES AND COVENANTS.
6.1 Seller represents and warrants to Purchaser and
covenants and agrees with Purchaser as follows:
6. .1 Seller has not entered into any contracts,
subcontracts, arrangements, licenses, concessions, easements, or
other agreements, either recorded or unrecorded, written or oral,
affecting all or any portion of the Property, or the use of it.
6.1.2 There are no (i) existing or pending
improvement liens to be made by any governmental authority
affecting the Property; (ii) violations of building codes and/or
zoning ordinances or other governmental or regulatory laws,
ordinances, regulations, orders or requirements affecting the
Property; (iii) existing, pending or threatened lawsuits or appeals
of prior lawsuits affecting the Property; (iv) existing, pending or
threatened condemnation proceedings affecting the Property; or (v)
existing, pending or threatened zoning, building, downzoning
petitions, proceedings, restrictive allocations or similar matters
that could affect Purchaser's use of the Property;
6.1.3 Seller is vested with good and marketable
and insurable fee simple title to the Property subject only to the
Permitted Exceptions listed in Section 5 hereinabove.
6.1.4 Seller shall comply prior to Closing with
all laws, rules, regulations, and ordinances of all governmental
authorities having jurisdiction over the Property;
6.1.5 To the best of Seller's knowledge, Seller
has not done nor allowed anything which could cause toxic or
hazardous materials or waste to be present in, on or about the
Property, and has no knowledge of any such materials or waste being
or ever having been in, on, or about the Property or adjacent
properties. To the best of Sellbr's knowledge, no toxic or
hazardous materials or wastes have been, are or shall be stored on
or under the Property or on or under property adjacent to it, which
have or will have an adverse effect upon the use, development
and/or value of the Property; all trash, if any, located on the
Property shall be removed prior to Closing.
6.1.6 All impact fees, user fees and assessments
relating to the Property have been paid and the benefits of them
are assignable to Purchaser without additional cost to Purchaser;
6.1.7 The number of acres comprising the
Property, net of all existing and pending dedications, easements,
rights -of -way and deed restrictions is approximately 413,569 square
feet;
6.1.8 There are no agreements currently in
effect which restrict the sale of the Property;
6.1.9 Seller has the right, power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated by it; neither the execution and delivery
of this Agreement nor the consummation of the transactions
contemplated by it nor the fulfillment of nor the compliance with
the terms, conditions and provisions of this Agreement will
conflict with or result in a violation or breach of any relevant
law, or any other instrument or agreement of any nature to which
Seller is a party or by which it is bound or may be affected, or
constitute (with or without the giving of notice or the passage of
time) a default under such an instrument or agreement; no consent,
approval, authorization or order of any person is required with
respect to the consummation of the transactions contemplated by
this Agreement;
6.1.10 No commitments or agreements have been or
will be made to any governmental authority, utility company, school
board, church or other religious body, any homeowners or
homeowners' association, or any other organization, group or
individual, relating to the Property which would impose an
obligation upon Purchaser to make any contributions or dedications
of money or land to construct, install or maintain any improvements
of a public or private nature on or off the Property, or otherwise
impose liability on Purchaser;
6.1.11 At all times during the term of this
Agreement and as of Closing, all of Seller's representations,
warranties and covenants in this Agreement shall be true and
correct; no representation or warranty by Seller contained in this
Agreement and no statement delivered or information supplied to
Purchaser pursuant to this Agreement contains any untrue statement
of a material fact or omits to state a material fact necessary in
order to make the statements of information contained in them or in
this Agreement not misleading.
6.2 The provisions of this Section 6 and all other
representations, warranties and covenants of Seller shall survive
the Closing.
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7. CONDITIONS PRECEDENT.
7.1 An express condition precedent to Purchaser's
obligation to close this transaction is the truth and correctness
of all of Seller's representations and warranties and the
fulfillment of all of Seller's covenants at all times during the
term of this Agreement and as of Closing, and no inquiry, analysis
or examination made by Purchaser (or the results of them) shall
reduce, limit or otherwise affect said representations, warranties
and covenants.
7.2 The following item is an additional condition
precedent to Purchaser's obligation to close this transaction.
7.2.1 Purchaser shall have obtained the necessary
approval of this Agreement from the Village of Key Biscayne
Council.
7.3 In the event (a) any of Seller's representations and
warranties are not true and correct or (b) Seller's covenants are
not fulfilled or (c) all other conditions precedent are not met as
of Closing (or earlier specified date, if any), then Purchaser
shall have the option of either: (i) in the event of (a) or (b)
above, holding Seller in default under this Agreement; or (ii) in
the event of (c) above, waiving the condition precedent and closing
"as is" without equitable reduction in the Purchase Price.
7.4 The provisions of this Section 7 shall survive the
Closing.
8. DEFAULT PROVISIONS.
8.1 In the event of the failure or refusal of Purchaser
to close this transaction, without fault on Seller's part and
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without failure of title or any conditions precedent to Purchaser's
obligations under this Agreement, Seller shall have the right to
receive the Deposit together with all interest earned thereon as
agreed and liquidated damages for said breach, as Seller's sole and
exclusive remedy for the default of Purchaser, whereupon the
parties shall be relieved of all further obligations under this
Agreement.
8.2 In the event of a default by Seller under this
Agreement, Purchaser at Purchaser's option shall (i) have the right
to receive the return of the Deposit together with all interest
earned thereon or, alternatively, (ii) Purchaser shall have the
right to seek specific performance of Seller's obligations under
this Agreement, without thereby waiving damages.
9. PRORATIONS.
9.1 Real estate taxes, interest, cost and revenues and
all other proratable items shall be prorated as of the date of
Closing. In the event the taxes for the year of Closing are
unknown, the tax proration will be based upon such taxes for the
prior year and, at the request of either party, such taxes for the
year of Closing shall be reprorated and adjusted when the tax bill
for the year of Closing is received and the actual amount of taxes
is known.
9.2 The provisions of this Section 9 shall survive the
Closing.
10. IMPROVEMENT LIENS.
10.1 Certified, confirmed or ratified liens for
governmental improvements or special assessments as of the date of
Closing, if any, shall be paid in full by Seller, and pending liens
for governmental improvements or special assessments as of the date
of Closing shall be assumed by Purchaser, provided that where the
improvement has been substantially completed as of the date of
Closing, such pending lien shall be considered certified.
10.2 The provisions of this Section 10 shall survive the
Closing.
11. DOCUMENTARY STAMPS AND INTANGIBLE TAXES. At Closing,
Seller and Purchaser shall each pay one-half (1/2) of the
documentary stamps and surtax, if any, due on the warranty deed of
conveyance. Each party shall bear the recording costs of any
instruments received by that party, except that Seller shall pay
the recording costs on documents necessary to clear title.
12. CLOSING.
12.1 Subject to other provisions of this Agreement for
extension, closing on the transaction described in this Agreement
(the "Closing") shall be ten (10) days from the date (a) the
Purchaser has obtained a commitment for an Owner's ALTA
Marketability Policy subject only to the Permitted Exceptions; and
(b) the Purchaser has received and approved the results of all
environmental tests or investigations performed on the Property
(the "Closing Date"), at the offices of the attorneys for
Purchaser, Weiss Serota & Helfman, P.A., at 2665 South Bayshore
Drive, Suite 204, Miami, Florida 33133.
12.2 Seller shall convey title to the Property by good
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and sufficient Statutory Warranty Deed subject only to the
Permitted Exceptions described in Section 5 above. Seller shall
also deliver at Closing to Purchaser:
12.2.1 a mechanic's lien affidavit in form
acceptable to Purchaser's title insurer to delete the standard
exception relating to such liens in Purchaser's owner's title
insurance policy;
12.2.2 an affidavit that there are no unrecorded
easements and that Seller has exclusive possession of the Property;
in a form acceptable to the title insurer to delete the standard
exception relating to such liens in Purchaser's owner's title
insurance policy;
12.2.3 an affidavit that Seller has done nothing
to change the state of facts shown on the Survey;
12.2.4 the gap affidavit and indemnification
described in Section 6 above, if applicable;
12.2.5 instruments necessary to clear title, if
any, including those required to remove standard exceptions from
the title policy;
12.2.6 appropriate assignments of all leases,
deposits, licenses, easements, rights -of -way, contract rights,
intangible rights and other property rights included in this
transaction;
12.2.7 appropriate restatements of Seller's
covenants, representations and warranties which are to survive
Closing;
12.2.8 an affidavit that the Property is not the
sole asset of Seller or essential to its business, or satisfactory
evidence that the shareholders of Seller have ratified this
transaction;
12.2.9 evidence that there are no state or county
security interest filings or sheriff's writs of execution against
any of the property;
12.2.10 appropriate evidence of Seller's corporate
or partnership existence and authority to sell and convey the
Property, including without limitation: a certified copy of
Seller's articles of incorporation, or a certificate from the
Secretary of State of Florida of qualification to transact business
in Florida together with certified copies of any document filed
with such articles; a certificate of due incorporation and good
standing from the appropriate governmental authorities; a
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certificate from the Secretary of State of Florida that Seller has
registered under the RICO Act; and a certified copy of the
resolution of Seller's board of directors identifying Seller's
officers and authorizing this transaction and authorizing its
officer(s) to execute all requisite documents, including the
Statutory Warranty Deed;
12.2.11 any an all guarantees and warranties on
all property (if any) conveyed pursuant to this Agreement, with
assignment of all rights under the guarantees and warranties;
12.2.12 a non -foreign certificate and other
documentation as may be appropriate and satisfactory to Purchaser
to meet the non -withholding requirements under FIRPTA and any other
federal statute or regulations (or, in the alternative, Seller
shall cooperate with Purchaser in the withholding of funds pursuant
to FIRPTA regulations);
12.2.13 an appropriate reporting form to be
submitted with the deed at time of recordation.
12.3 Seller and Purchaser shall execute such other
documents as are reasonable necessary to consummate this
transaction.
13. INSPECTIONS.
13.1 Purchaser, and Purchaser's agents and representatives
shall have the right during the term of this Agreement to enter
upon the Property at all reasonable times for the purpose of
inspecting or testing the Property for toxic or hazardous wastes or
materials. Purchaser agrees to promptly order all environmental
testing on the Property within ten (10) working days of the
Effective Date of this Agreement. In the event that the
investigations or tests indicate the presence of hazardous wastes
or materials on or affecting the Property, or that any hazardous or
toxic materials disposal activities have been conducted on the
Property, the Purchaser shall have the right, at its sole option,
upon proper notice to Seller, up to and including the Closing Date,
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to declare this Agreement null and void by giving written notice to
Seller.
13.2 During the Inspection Period, as defined below, Purchaser
shall also have the right to conduct, at Purchaser's expense,
whatever reasonable investigations, analyses and studies of the
Property that Purchaser may deem appropriate to satisfy Purchaser
with regard to:
13.2.1 the physical condition of the land and any
improvements located on the Property;
13.2.2 the physical condition of any fixtures,
equipment, furnishings and other items of property referred to in
Subsection 1.1 above;
13.2.3 the permitted uses of and improvements to the
Property under applicable building and zoning ordinances and the
present compliance or non-compliance with the same;
13.2.4 all existing contracts, agreements, leases and
tenancies affecting the Property, if any; and
13.3 If Purchaser is dissatisfied, for any reason and in
Purchaser's exclusive judgment, with the result of Purchaser's
investigations, then Purchaser may cancel this Agreement by
notifying Seller of such cancellation on or before 5:00 p.m. on the
thirtieth (30) day (assuming it is a business day, otherwise on the
next ensuing business day) following the Effective Date (the
"Inspection Period"), whereupon Escrow Agent shall return the
Deposit together with all interest earned thereon to Purchaser and
both parties shall be released from all further obligations under
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this Agreement. No inquiry, examination, or analysis made by
Purchaser (or the results of them) shall reduce, limit or otherwise
affect the representations and warranties made by Seller in this
Agreement.
13.4 Notwithstanding any provisions in this Agreement to
the contrary, Purchaser does and shall indemnify and hold harmless
Seller, its agents, employees, successors and assigns, against all
losses, claims, damages, liability, attorneys' and accountants'
fees and costs of litigation and all other expenses related to,
growing out of, or arising from the inspection of or entry upon the
Property, or other acts undertaken by Purchaser, its agents,
employees or assigns, under this Agreement. If Purchaser does not
close on the purchase of the Property under this Agreement, it
shall return the Property to the condition in which it existed
prior to any inspections undertaken by Purchaser, its agents,
employees and assigns pursuant to this Agreement.
13.5 The provisions of this section shall survive the
Closing or the termination or cancellation of this Agreement.
14. NOTICES. Any notices required or permitted to be given
under this Agreement shall be delivered by hand or mailed by
certified or registered mail, return receipt requested, in a
postage prepaid enveloge or delivered by a nationally recognized
overnight delivery service, and addressed as described below;
notices shall be deemed effective only upon receipt or refusal of
delivery.
Notices to Purchaser: Village of Key Biscayne
85 West McIntyre Street
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Key Biscayne, Florida 33149
Attn: C. Samuel Kissinger,
Village Manager
With a Copy to
Notices to Seller:
Weiss Serota & Helfman, P.A.
2665 South Bayshore Drive
Suite 204
Miami, Florida 33133
Attention: Stephen J. Helfman, Esq.
C. G. Rebozo
524 Fernwood Road
Key Biscayne, Florida 33149
Precision Valve Corporation, a
New York Corporation
51 Pondfield Road
Boxville, NY 10708
Notices to Escrow Agent: Weiss Serota & Helfman, P.A.
2665 South Bayshore Drive
Suite 204
Miami, Florida 33133
Attention: Stephen J. Helfman, Esq.
15. FINANCING. Seller acknowledges that Purchaser may seek
a loan to purchase and/or develop the Property from a financial
institution of Purchaser's choice. Such loan may be for the
acquisition, development or construction of improvements to the
Property. While this Agreement is not subject to financing, Seller
agrees to fully cooperate with Purchaser and Purchaser's lender in
Purchaser's efforts to obtain such financing.
16. ESCROW AGENT.
16.1 Escrow Agent undertakes to perform only such duties
as are expressly set forth in this Agreement. Escrow Agent shall
not be deemed to have any implied duties or obligations under or
related to this Agreement. Escrow Agent is the law firm
representing Purchaser. In the event of a dispute between the
parties, the parties consent to Escrow Agent continuing to
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represent Purchaser, notwithstanding that Escrow Agent shall
continue to have the duties provided for in this Agreement.
16.2 Escrow Agent may (a) act in reliance upon any
writing or instrument or signature which it, in good faith,
believes to be genuine; (b) assume the validity and accuracy of any
statement or assertion contained in such a writing or instrument;
and (c) assume that any person purporting to give any writing,
notice, advice or instructions in connection with the provisions of
this Agreement has been duly authorized to do so. Escrow Agent
shall not be liable in any manner for the sufficiency or
correctness as to form, manner of execution, or validity of any
instrument deposited in escrow, nor as to the identity, authority,
or right of any person executing any instrument; Escrow Agent's
duties under this Agreement are and shall be limited to those
duties specifically provided in this Agreement.
16.3 The parties to this Agreement do and shall indemnify
Escrow Agent and hold it harmless from any and all claims,
liabilities, losses, actions, suits or proceedings at law or in
equity, or other expenses, fees, or charges of any character or
nature, including attorneys' fees and costs including appellate
proceedings, which it may incur or with which it may be threatened
by reason of its action as Escrow Agent under this Agreement,
except for such matters which are the result of Escrow Agent's
gross negligence or willful malfeasance. Escrow Agent shall be
vested with a lien on all property deposited under this Agreement
for the purpose of such indemnification, and for any other expense,
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fees or charges or any character or nature, which may be incurred
by Escrow Agent in its capacity as escrow agent. Escrow Agent has
and shall have the right, regardless of any instructions, to hold
the property deposited in escrow until and unless said additional
expenses, fees and charges shall be fully paid.
16.4 If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this Agreement, or about
their respective rights and obligations, or about the propriety of
any action contemplated by Escrow Agent, Escrow Agent may, but
shall not be required to, file an action in interpleader to resolve
the disagreement; upon filing such action, Escrow Agent shall be
released from all obligations under this Agreement. Escrow Agent
shall be indemnified for all costs and reasonable attorneys' fees,
including those for appellate matters and for paralegals and
similar persons, incurred in its capacity as escrow agent in
connection with any such interpleader action and charge its usual
and customary legal fees for such representation, and the court
shall award such attorneys' fees, including those for appellate
matter and for paralegals and similar persons, to Escrow Agent from
the losing party. Escrow Agent shall be fully protected in
suspending all or part of its activities under this Agreement until
a final judgment in the interpleader action is received.
16.5 Escrow Agent may consult with counsel of its own choice,
including counsel within its own firm, and shall have full and
complete authorization and protection in accordance with the
opinion of such counsel. Escrow Agent shall otherwise not be
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liable for any mistakes of fact or errors of judgment, or for any
acts or omissions of any kind unless caused by its gross negligence
or willful misconduct.
16.6 Escrow Agent may resign upon five (5) days' written
notice to Seller and Purchaser. If a successor escrow agent is not
appointed jointly by Seller and Purchaser within the five (5) day
period, Escrow Agent may petition a court of competent jurisdiction
to name a successor.
16.7 The provisions of this Section 16 shall survive the
Closing and also the cancellation of this Agreement.
17. RISK OF LOSS.
17.1 The Property shall be conveyed to Purchaser in the
same condition as on the date of this Agreement, ordinary wear and
tear excepted. Seller shall not remove anything from the Property
between the date of this Agreement and Closing.
17.2 Upon receipt of an offer or any notice or
communications from any governmental or quasi -governmental body
seeking to take under its power of eminent domain all or any
portion of the Property, Seller shall promptly notify Purchaser of
the receipt of same and shall send such communication, or a copy of
it, to Purchaser. Upon receipt of such notice, Purchaser shall
have the right to rescind this Agreement by delivery of written
notice to Seller within sixty (60) days of Purchaser's receipt of
the communication from Seller. In the event Purchaser elects to
rescind, the Purchaser shall receive a refund of the Deposit
together with all interest earned thereon, in which case both
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parties shall be relieved of all further obligations under this
Agreement. In the event Purchaser elects not to rescind, then
Purchaser shall be entitled to all condemnation awards and
settlements and the property so taken or sold shall not be subject
to this Agreement. Seller and Purchaser agree to cooperate with
each other to obtain the highest and best price for the condemned
property.
17.3 In the event that the Property is damaged or
destroyed by fire or other casualty prior to Closing, Seller shall
repair and restore the Property to the same condition as before the
fire or casualty, and the Closing shall be deferred for up to sixty
(60) days to permit such repair and restoration. If Seller is
unable to repair and restore within such sixty (60) day period,
then Purchaser shall have the option of: extending the (60) day
period for an additional thirty (30) days, or canceling this
Agreement and receiving a refund of the Deposit together with all
interest earned thereon, in which case both parties shall be
released from all further obligations under this Agreement, or
proceeding with the Closing, in which case Purchaser shall be
entitled to all insurance proceeds (subject to the rights of the
holder(s) of the Existing Mortgage), and to a credit equal to the
insurance deductibles, and to a credit equal to the replacement
cost not covered by insurance proceeds and deductibles.
18. INDEMNITY.
18.1 Seller shall and does indemnify and hold Purchaser
harmless from any and all liability, including costs and attorneys'
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fees, including those for appellate proceedings;
18.2 for services rendered prior to Closing under any
contracts for services to the Property existing now or at any time
prior to Closing;
18.3 The provisions of this Section 18 shall survive the
Closing.
19. MISCELLANEOUS.
19.1 This Agreement has been negotiated and executed in
Florida; it shall be construed and governed in accordance with the
laws of the State of Florida, without application of conflicts of
laws principles.
19.2 In the event any term or provision of this Agreement
is determined by appropriate judicial authority to be illegal or
otherwise invalid, such provision shall be given its nearest legal
meaning or be construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in
full force and effect.
19.3 In the event of any litigation between the parties
under this Agreement, the prevailing party shall be entitled to
reasonable accountants' and attorneys' fees and court costs,
including those for appellate proceedings and for paralegals and
similar persons. Wherever provision is made in this Agreement for
"attorneys' fees," such term shall be deemed to include
accountants' and attorneys' fees and court costs, whether or not
litigation is commenced, including those for appellate proceedings
and for paralegals and similar persons.
19.4 Whenever used in this Agreement, the singular shall
include the plural, the plural shall include the singular, any
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gender shall include every other and all genders, and captions and
paragraph headings shall be disregarded.
19.5 The captions in this Agreement are for the
convenience of reference only and shall not be deemed to alter any
provision of this Agreement.
19.6 Any reference in this Agreement to time periods less
than six (6) days shall, in the computation thereof, exclude
Saturdays, Sundays, and legal holidays; any time period provided
for in this Agreement which shall end on a Saturday, Sunday or
legal holiday shall extend to 5:00 p.m. of the next full business
day.
19.7 This Agreement constitutes the entire agreement
between the parties and may not be changed, altered or modified
except by an instrument in writing signed by the party against whom
enforcement of such change would be sought.
19.8 All of the terms of this Agreement, including but
not limited to the representations, warranties and covenants of
Seller, shall be binding upon and shall inure to the benefit of the
parties to this Agreement and their respective successors and
assigns.
19.9 Typewritten or handwritten provisions which are
inserted in or attached to this Agreement as addenda or riders
shall control all printed or pretyped provisions of this Agreement
with which they may be in conflict.
19.10 Time is of the essence as to all material terms of
this Agreement.
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EXECUTED as of the date first written above in several
counterparts, each of which shall be deemed an original, but all of
which constitute only one agreement.
Signed, sealed and delivered
in the presence of:
(As to Seller)
(As to Seller)
(As to Purchaser)
SELLER:
C. G. Rebo z o
Date Executed: /J
SELLER:
Precision Valve Corporation, a
New York corporation
By 4Z4V/
Its:
Date Executed:
PURCHASER:
Village of Key Biscayne
By
/ i
Jhn Festa, Mayor
D. a Executed:
"
"
R E C E I P T S
T h e u n d e r s i g n e d E s c r o w A g e n t a c k n o w l e d g e s r e c e i p t o f a c h e c k ,
s u b j e c t t o c l e a r a n c e , i n t h e a m o u n t o f T w e n t y F i v e T h o u s a n d a n d
N o / 1 0 0 D o l l a r s ( $ 2 5 , 0 0 0 . 0 0 ) t o b e h e l d a s t h e D e p o s i t p u r s u a n t t o
t h e f o r e g o i n g A g r e e m e n t .
E S C R O W A G E N T :
W E I S S S E R O T A &