HomeMy Public PortalAbout1999-48 Approving purchase and sale agreement re: Rebozo estate. Superseding Res. No. 99-29RESOLUTION NO. 99-48
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING
PURCHASE AND SALE AGREEMENT BETWEEN THOMAS
H. WAKEFIELD, CHARLES FRED REBOZO AND MARY R.
BOUTERSE, AS SUCCESSOR TRUSTEES OF THE CHARLES
G. REBOZO REVOCABLE TRUST UNDER REVOCABLE
TRUST AGREEMENT DATED JANUARY 20, 1989, AS
MODIFIED AND AMENDED, AND THE VILLAGE OF KEY
BISCAYNE; PROVIDING FOR PURCHASE OF CERTAIN
LANDS AND IMPROVEMENTS BY THE VILLAGE;
AUTHORIZING VILLAGE MANAGER TO EXECUTE THE
CONTRACT ON BEHALF OF THE VILLAGE;
AUTHORIZING VILLAGE MANAGER TO TAKE ALL
ACTION NECESSARY TO IMPLEMENT THE CONTRACT;
AUTHORIZING VILLAGE MANAGER AND VILLAGE
ATTORNEY TO TAKE ALL ACTION NECESSARY TO
CLOSE THE PURCHASE AND SALE TRANSACTION;
PROVIDING FOR EFFECTIVE DATE; SUPERCEDING
RESOLUTION NO. 99-29 ON THE SAME SUBJECT.
WHEREAS, the Village desires to purchase certain lands and improvements from Thomas
H. Wakefield, Charles Fred Rebozo and Mary R. Bouterse, as Successor Trustees of the Charles G.
Rebozo Revocable Trust under Revocable Trust Agreement dated January 20, 1989, as modified and
amended (the "Trust"); and
WHEREAS, the Village Council finds that the approval of the Purchase and Sale Agreement
is in the best interest of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. That the Purchase and Sale Agreement (the "Purchase and Sale Agreement"), in
substantially the form attached hereto, between the Village and the Trust is hereby approved and the
Village Manager and Village Clerk are authorized to execute such Purchase and Sale Agreement,
in their respective capacities, on behalf of the Village.
Section 2. That the Village Manager is authorized to take all action necessary to implement
the Purchase and Sale Agreement, including the expenditure of appropriated funds in accordance
with the requirements of the Purchase and Sale Agreement.
Section 3. That the Village Manager and Village Attorney are hereby authorized to execute
all documents necessary to complete the closing of the purchase and sale transaction in accordance
with the Purchase and Sale Agreement, and the Village Manager is authorized to execute all closing
statements and other instruments necessary to close the transaction.
Section 4. That this resolution shall supercede Resolution No. 99-29, on the same subject
matter.
Section 5. That this resolution shall become effective upon its adoption.
PASSED AND ADOPTED this 11th day of May , 1999.
CONCHITA H. ALVAREZ, CMC, VILLAGE CL
Y iNs/4-7/
RICHARD JAY WEISS, VILLAGE ATTORNEY
103032\resolutions\purchase and sale agreement between wakefield and rebozo
JOE I. RASCO, MAYOR
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
PURCHASE AND SALE AGREEMENT
THIS PURCHASE D SALE AGREEMENT (this "Agreement") is made and entered
into as of the 2 — day of , 1999 between Thomas H. Wakefield, Charles Fred Rebozo and
Mary R. Bouterse, as Successor Trustees of the Charles G. Rebozo Revocable Trust under
Revocable Trust Agreement dated January 20, 1989, as modified and amended (hereinafter
referred to as "Seller") and the Village of Key Biscayne, a Florida municipal corporation
(hereinafter referred to as "Purchaser").
WHEREAS, Seller is the owner of two parcels of real property containing approximately
2.068 acres in the aggregate located at 560 Crandon Boulevard, Key Biscayne, Miami -Dade
County, Florida, and more specifically described on Exhibit "A" attached hereto and made a part
hereof; and
WHEREAS, Purchaser desires to purchase and Seller desires to sell the Property
(hereinafter defined), upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and promises
contained herein and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser and Seller agree as follows:
SECTION 1: DEFINITIONS
For purposes of this Agreement, each of the following terms, when used herein with an
initial capital letter, shall have the following meaning:
1.1 Affiliate. A Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with the Person in question. For purposes
of this definition, the term "control" means the ownership of 50% or more of the beneficial
interest or the voting power of the controlled Person.
1.2 BFI Lease. That certain Commercial Lease between Key Land Company, Inc., as
Lessor, and Industrial Waste Service, Inc., now known as BFI, as Lessee, dated February 1,
1995.
1.3 Business Day. Monday through Friday excluding bank holidays on which national
banking associations are authorized to be closed.
1.4 Closing. The Closing and consummation of the purchase and sale of the Property
as contemplated by this Agreement.
1.5 Closing Date (or Date of Closing). The date upon which Closing occurs.
1.6 Condemnation Proceeding. Any proceeding or threatened proceeding in
condemnation, eminent domain or written request in lieu thereof.
1.7 Deed. The statutory warranty deed of conveyance of the Land and Improvements
from Seller to Purchaser.
1.8 Dry Cleaner's Lease. That certain Commercial Lease between Key Land
Company, Inc., as Lessor, and Pedro Orrego, as Lessee, dated April 1, 1997.
1.9 Earnest Money. The funds to be paid by Purchaser to Escrow Agent pursuant to
Section 3 hereof, plus any interest earned thereon.
1.10 Effective Date. The date when the last one of Seller or Purchaser has signed and
initialed all changes to this Agreement.
1.11 Environmental Report. The environmental assessment audit to be conducted by
Purchaser's environmental engineer, at Purchaser's expense, with respect to the Property,
certified and delivered to Purchaser.
1.12 Environmental Requirement. All laws, statutes, ordinances, rules, regulations,
orders, codes, licenses, permits, decrees, judgments, directives or the equivalent of or by any
federal, state or local governmental authority and relating to or addressing the protection of the
environment or human health.
1.13 Escrow Agent. Weiss Serota Helfman Pastoriza & Guedes, P.A.
1.14 Evidence of Authority. Evidence of authority for the execution and performance
of this Agreement by Seller including, without limitation, necessary resolutions, authorizations
and consents.
1.15 Governmental Authority. Any federal, state, county, municipal or other entity,
authority, commission, board, bureau, court, agency or any instrumentality of any of them.
1.16 Hazardous Substances. Any material or substance that, whether by its nature or
use, is now or hereafter defined as hazardous waste, hazardous substance, pollutant or contaminant
under any Environmental Requirement, or which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and which is regulated
under any Environmental Requirement, or which is or contains petroleum, gasoline, diesel fuel or
another petroleum hydrocarbon product.
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1.17 Improvements. All buildings, structures, fixtures, including, without limitation,
all equipment and appliances used in connection with the operation and occupancy of the
Improvements, such as heating and air-conditioning systems and facilities used to provide any
utility services, refrigeration, trash disposal or other services, and other improvements and
facilities located on the Land.
1.18 Insurance Requirements. All terms of any existing insurance policy and all
requirements of the issuer of any existing insurance policy applicable to or affecting the Property
or any part thereof or any use or condition thereof.
1.19 Intangible Property. All intangible property owned by Seller and used in
connection with or relating to the ownership, use, development, operation, management,
occupancy or maintenance of the Land including, but not limited to, the Permits and all public
and private contract rights and development or usage rights of Seller with respect to the Land.
1.20 Land. The parcels of land being more particularly described on Exhibit "A"
attached hereto and incorporated herein by reference and appurtenant easements thereto, together
with all of Seller's right, title and interest in and to all easements, rights of way, strips and gores
of land, tenements, hereditaments and appurtenances, reversions, remainders, privileges, licenses
and other rights and benefits belonging to, running with or in any way relating thereto; together
with all right, title and interest of Seller (if any) in and to any land lying in the bed of any street,
road or highway, open or proposed, in front of, abutting or adjoining the Land.
. 1.21 Leases. The BFI Lease and the Dry Cleaner's Lease.
1.22 Legal Requirement. All laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses, authorizations, directions
and requirements of all Governmental Authorities and quasi -governmental authorities, officials,
agencies, and officers, ordinary or extraordinary, which now may be applicable to the Property or
any use, operation or condition thereof.
1.23 Monetary Lien. Any mortgage, deed of trust, security deed, lien, monetary
judgment, security interest, past due tax or assessment or other similar encumbrance of a
monetary nature against the Property or any portion of the Property.
1.24 Operating Agreements. All management, service, equipment, supply, security,
maintenance, pest control, equipment leases and other such agreements (and any amendments,
modifications or supplements thereto) with respect to or affecting the Property or any portion
thereof (excluding the Permitted Exceptions), all as listed on Exhibit "B" hereto and also
including any such contracts or agreements approved in writing by Purchaser after the date
,hereof.
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1.25 Owner's Title Policy. An Owner's marketability policy of title insurance on the
most current ALTA Form for the Property in the amount of the Purchase Price, subject only to
the Permitted Exceptions, and containing such additional endorsements permitted under Florida
title insurance regulations as reasonably requested by Purchaser.
1.26 Permits. All consents, notices of completion, environmental and utility permits
and approvals authorizations, variances, waivers, licenses, permits, certificates and approvals
from any Governmental Authority or quasi -governmental authority issued or granted with respect
to the Property now or prior to Closing.
1.27 Permitted Exceptions. Those matters identified or referred to in Section 5.5 and
such other title exceptions as may hereafter be approved in writing (or deemed to have been
approved by Purchaser) subject to and in accordance with the terms and provisions of Section 5
herein.
1.28 Person. Any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, institution, entity, party or government
(whether national, federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department thereof).
1.29 Personal Property. The tangible personal property of Seller located on or used in
connection with the Land or in the Improvements, including, but not limited to, the property
listed on Exhibit "C" attached hereto, including any abstracts of title.
1.30 Plans and Specifications. The "as built" plans and specifications used in the
construction of the buildings and other Improvements located on the Land (including driveways,
walkways, landscaping and mechanical, electrical and plumbing systems).
1.31 Property. The following property:
1.31.1 The Land;
1.31.2 The Improvements;
1.31.3 The Intangible Property;
1.31.4 The Personal Property;
1.31.5 The interest of Seller under the Surviving Contracts, the Warranties
and the Permits;
1.31.6 Seller's interest in the Leases; and
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1.31.7 The Records and Plans.
1.32 Purchaser's Attorney. Weiss Serota Helfman Pastoriza & Guedes, P.A.,
Attention: Elaine M. Cohen, Esq. Purchaser's Attorney's mailing address is 2665 South Bayshore
Drive, Suite 420, Miami, Florida 33133. Telephone: (305) 854-0800; Telecopier: (305) 854-
2323.
1.33 Real Property. The Land and the Improvements.
1.35 Records and Plans. All books, records and documents maintained by Seller or
compiled by or at the request of Seller and in the possession or control of Seller specifically
relating to the ownership, use, development, operation, management, occupancy or maintenance
of the Property, including, without limitation, (i) the Plans and Specifications and (ii) all records
pertaining to the ongoing maintenance, use and operation of the Property.
1.36 Rent. Rental shall include, but not be limited to, all base rent, minimum rent,
additional rent, percentage rent, common area maintenance charges, taxes, insurance, operating
expenses, parking fees and any other payments for miscellaneous services performed by Seller
under the Leases.
1.37 Seller's Attorney. Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford,
P.A., Attention: Nicholas E. Christin, Esq. Seller's Attorney's mailing address is 5th Floor,
Grove Plaza Building, 2900 Middle Street (S.W. 28th Terrace), Miami, Florida 33133.
Telephone: (305) 448-3939. Telecopier: (305) 441-1745.
1.38 Submission Documents. The diligence items to be delivered to Purchaser
pursuant to Section 9 hereof.
1.39 Survey. An updated survey of the Property satisfactory in all respects to
Purchaser prepared by a licensed surveyor in the State of Florida, certified as meeting the
minimum standards for survey in the State of Florida. The Survey shall (i) show the square
footage and acreage of the Land, (ii) show the location of all the improvements, utility and other
lines and easements, either visible or recorded, and the recording references of all the recorded
easements shown on the Title Commitment, (iii) show the elevation and flood zone information,
and (iv) contain such other items as may be reasonably required by Purchaser.
1.40 Surviving Contracts. Those Operating Agreements which Purchaser does not
elect to cancel and agrees to assume (by written notice to Seller prior to the Termination Date), if
legally transferable and assumable in accordance with the terms thereof.
1.41 Termination Date. The date which is sixty (60) days after the Effective Date.
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1.42 Title Commitment. The commitment for title insurance to be obtained by
Purchaser pursuant to Section 5 below.
1.43 Title Company. Chicago Title Insurance Company, Lawyers Title Insurance
Corporation or such other nationally recognized title insurance company licensed to write title
insurance in the State of Florida which is approved by Purchaser.
1.44 U.C.C. Report. A report detailing the results of a search of all personal property
records in which a security interest, lien or encumbrance affecting any portion of the Property
may be located.
1.45 Warranties. All guarantees, warranties and indemnities existing now or prior to
Closing relating to the Property.
SECTION 2: PURCHASE AND SALE
Purchaser shall purchase the Property from Seller, and Seller shall sell, convey, transfer
and assign the Property to Purchaser, subject to and in accordance with the terms and conditions
of this Agreement.
SECTION 3: EARNEST MONEY
Within five Business Days after the Effective Date, Purchaser shall deposit in escrow with
the Escrow Agent $1,000.00 as Earnest Money, to be delivered to Seller at Closing and applied
as a credit against the Purchase Price (as defined below) at Closing. Escrow Agent shall hold and
disburse the Earnest Money in accordance with the terms of this Agreement. Escrow Agent shall
use its good faith efforts to invest the Earnest Money in an interest -bearing account of a financial
institution, which shall be satisfactory to Seller and Purchaser. Purchaser and Seller agree to sign
all forms and reports reasonably required in connection with the holding and investing by Escrow
Agent of the Earnest Money. For purposes of reporting earned interest with respect to the
Earnest Money, Purchaser's Federal tax identification number is 65-0236174 and Seller's Federal
tax identification number is 65-6272703.
SECTION 4: PURCHASE PRICE
The purchase price for the Property shall be Three Million Two Hundred Fifty -Five
Thousand Five Hundred and No/ 100 Dollars ($3,255,500.00) (herein referred to as the "Purchase
Price"). The entire Purchase Price, less the amount of the Earnest Money and subject to
adjustments and prorations as herein provided, shall be due and payable by cashier's check or in
immediately available funds, by wire transfer, at Closing.
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SECTION 5: TITLE/SURVEY
Title to the Property shall be good and marketable and insurable fee simple title in an
amount of the Purchase Price at no more than the Title Company's ordinary or promulgated rates
for the Owner's Title Policy. Selier shall deliver such affidavits and agreements as may be
reasonably required by the Title Company in order to issue the Owner's Title Policy in
accordance with this Agreement.
5.1 Examination of Title. Within five (5) Business Days of the Effective Date, Seller
shall deliver to Purchaser's attorney Seller's existing abstracts covering the Property. Purchaser
may, at Seller's expense, either (i) have the abstract continued and brought current to a date not
earlier than the Effective Date or (ii) obtain (a) a computer title search from the Title Company
updating title from the date of the abstract and (b) a status of title report from the Title Company
with respect to the Property (the "STAR Report"). Purchaser may obtain, at Purchaser's
expense, an ALTA marketability title insurance commitment (the "Title Commitment") issued by
the Title Company covering the Land pursuant to which the Title Company agrees to issue the
Owner's Title Policy to Purchaser. The cost of the Title Commitment and the Owner's Title
Policy shall be paid by Purchaser.
5.2 Survey. Within five (5) days of the Effective Date, Seller shall provide Purchaser
with a copy of any existing survey of the Property in Seller's possession. At Purchaser's option,
Purchaser may obtain the Survey. If Seller's provides Purchaser with an existing survey of the
entire Property, then the cost of the Survey shall be paid by Purchaser; otherwise, Purchaser and
Seller shall each pay one-half (1/2) of the cost of the Survey.
5.3. Seller's Trust Agreement. Within ten (10) days of the Effective Date, Selier shall
cause to be delivered to the Title Company a certified copy of all or such portions of Seller's
Trust Agreement as shall be required by the Title Company.
5.4 U.C.C. Report. Seller shall cause to be delivered to Purchaser copies of the
U.C.C. Report, within fifteen (15) days of the Effective Date.
5.5 Permitted Exceptions. The sale of the Property shall be subject to the following:
5.5.1. The lien of all ad valorem real estate taxes for the fiscal year in
which Closing occurs, subject to proration as herein provided; and
5.5.2. Any items shown on the Title Commitment and approved by
Purchaser in accordance with Section 5.6 below.
The above items described in this Section 5.5 are herein collectively referred to as the
"Permitted Exceptions".
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5.6 Objections to Title/Survey. Purchaser shall be entitled to object, in its reasonable
discretion, to any exceptions to title disclosed in the Title Commitment and/or matters shown on
the Survey until the Termination Date, by written notice to Seller of any objections to the Title
Commitment and the Survey. In the event that Purchaser shall so object to the Title Commitment
and/or the Survey, Seller shall have fifteen (15) Business Days after receipt of such notice to cure
Purchaser's objections to Purchaser's satisfaction or to obtain affirmative title insurance
protection acceptable to Purchaser for such objections. In the event Seller is unwilling or unable
to so cure such objections or to obtain affirmative title insurance protection acceptable to
Purchaser for such objections within such period, Purchaser may (i) waive such objections,
(ii) give Seller additional time in writing to cure such objections (in which event, the Closing shall
be delayed for an equivalent period of time) or (iii) terminate this Agreement by written notice to
Seller, in which event the Earnest Money shall be immediately returned to Purchaser and neither
Purchaser nor Seller shall have any further obligations hereunder, except obligations that
expressly survive the termination of this Agreement.
5.7 Cure of Monetary Liens. Notwithstanding Section 5.6 above, if the Title
Commitment reveals the existence of a Monetary Lien, then Seller shall pay any amount due in
satisfaction of each such Monetary Lien as to the Property only (or, subject to Purchaser's
reasonable approval, otherwise cause the same to be removed as an exception in the Title
Commitment) which amount, at the option of Seller, may be paid from the proceeds of the
Purchase Price at Closing. If one or more Monetary Liens have not been satisfied before the
Closing Date, then Purchaser and Escrow Agent are hereby authorized to satisfy such Monetary
Liens from the proceeds of the Purchase Price at Closing.
• 5.8 Estate Tax Liens. Within ten (10) days of the Effective Date, Seller shall apply
for the releases of all Federal and Florida estate tax liens affecting or encumbering the Property or
any portion thereof (the "Estate Tax Releases ") . Seller shall obtain the Estate Tax Releases on or
before the date which is ninety (90) days after the Effective Date.
5.9 Purchaser's Right to Terminate. If any title matter other than a matter disclosed
in the Title Commitment or the Survey arises or becomes known to Purchaser subsequent to the
date of the Title Commitment (a "New Title Matter") and such New Title Matter (a) is a
Monetary Lien or (b) was created or consented to by Seller, then Seller shall cure the New Title
Matter, at Seller's expense, on or before Closing. If the New Title Matter is not a Monetary Lien
or was not created or consented to by Seller, then Seller shall have until the earlier of (i) five (5)
Business Days of Seller's receipt of written notice thereof or (ii) the Closing Date, within which
to cure the same or to obtain affirmative title insurance protection acceptable to Purchaser for
such matter, and if such New Title Matter is not cured within such period, then Purchaser may, at
its sole option, exercised by written notice to Seller within five (5) Business Days following the
expiration of the five (5) Business Day cure period, either (i) terminate this Agreement and
receive a refund of the Earnest Money or (ii) elect to close subject to such New Title Matter. In
,the event of termination, neither party hereto shall have any further rights, obligations or
liabilities hereunder except to the extent that any right, obligation or liability set forth herein
expressly survives termination of this Agreement.
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5.10 Extension of Closing Date. The Closing Date shall be automatically extended to
allow all time periods specified in this Section 5 to expire.
SECTION 6: SELLER'S REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Purchaser and covenants and agrees with Purchaser, on
and as of the date hereof, to be certified to Purchaser on or as of the Closing, as follows:
6.1 Title. Seller is the fee simple owner of the Land and Improvements free and clear
of all encumbrances except for the Permitted Exceptions (without modification arising with regard
to Purchaser's rejection or disapproval of any of the items pursuant to this Agreement).
6.2 Organization, Power and Authority. Seller is an irrevocable trust, duly formed,
validly existing and in good standing under the laws of the State of Florida. Seller is, to the
extent required by law, duly qualified to do business in the State in which the Property is located
and has all necessary power to execute and deliver this Agreement and perform all its obligations
hereunder. The execution, delivery and performance of this Agreement by Seller (i) has been
duly and validly authorized by all necessary action on the part of Seller, (ii) does not conflict with
or result in a violation of the Revocable Trust Agreement of the Charles G. Rebozo Revocable
Trust dated January 20, 1989, as modified and amended, or any judgment, order of decree of any
court or arbiter in any proceeding to which Seller is a party, and (iii) does not conflict with or
constitute a breach of, or constitute a default under, any contract, agreement or other instrument
by which Seller or the Property is bound or to which Seller is a party.
6.3 No Conflict with Laws. The execution and delivery of this Agreement by Seller
and the performance by Seller of its obligations hereunder will not conflict with or result in a
breach of any order, judgment, writ, injunction or decree of any court or governmental
instrumentality.
6.4 No Bankruptcy. Seller is not a party to any voluntary or involuntary proceedings
under any applicable laws relating to the insolvency, bankruptcy, moratorium or other laws
affecting creditors rights to the extent that such laws may be applicable to Seller or the Property.
6.5 No Litigation. Seller is not a party to or affected by any litigation, administrative
action, investigation or other governmental or quasi -governmental proceeding which would or
could have an adverse effect upon the Property or upon the ability of Seller to fulfill its
obligations under this Agreement. There are no lawsuits, administrative actions, governmental
investigations or similar proceedings pending or threatened against or adversely affecting the
Property or any portion thereof or any interest therein.
6.6 Personal Property (i) The Property is equipped and furnished with all those items
of Personal Property listed on Exhibit "C" attached hereto and (ii) no items of Personal Property
owned by Seller shall be removed from the Property prior to the Closing. All such items of
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Personal Property are owned outright by Seller, free and clear of any security interest, lien or
encumbrance.
6.7 No Notices of Deficiency. Seller has not received any notice nor does Seller have
any actual knowledge that the holder of any mortgage or deed of trust encumbering any of the
Property, or any portion thereof or interest therein, or any insurance company which has issued a
policy with respect to any of the Property or any board of fire underwriters (or other body
exercising similar functions) claims, or intends to claim, any defect or deficiency in the Property
(that has not been corrected) or requires, or intends to require, the performance of repairs,
alterations, or other work to the Property as a condition to forego any premium rate increase,
cancellation or other potential policy change; And, Seller, subject to the right to contest any such
claim or requirement, agrees to comply with any such notice at Seller's cost if any such notice is
issued prior to the Closing Date.
6.8 Permits. All Permits and approvals required for the lawful operation, use and
occupancy of the Property, as it is currently being used, operated and occupied, have been issued
and paid for and are in full force and effect.
6.9 Legal Requirements. The construction, operation and use of the Real Property is
in compliance with the zoning, subdivision or building codes and all other Legal Requirements.
6.10 Compliance. None of the Property is in violation of any Legal Requirements or
Insurance Requirements.
6.11 No Violations. There are no presently outstanding and uncured notices of any
violations of any Legal Requirements, or Insurance Requirements, and to Seller's actual
knowledge, no Person capable of issuing such notice of violation has threatened to issue a notice
of violations.
6.12 Insurance. The Property is, and until Closing shall be, insured against casualty on
a full replacement cost basis (excluding land and foundation) by one or more insurance policies
maintained by Seller. Seller has not received any written notice from the respective insurance
carriers which issued any of such insurance policies stating that any of the policies or any of the
coverage provided thereby will not or may not be renewed, or that the premiums therefor will be
or may be increased. As of the Closing Date, Purchaser shall arrange for its own insurance
coverage for the Property.
6.13 Tax Parcels. Each of the parcels constituting the Land is assessed as a separate
tax lot or tax parcel, independent of any other parcels or assets not being conveyed hereunder,
each of the parcels constituting the Land has been validly, finally and unappealably subdivided
from all other property for conveyance purposes. There are no pending contests or appeals with
respect to (i) the assessed value of the Property for ad valorem taxation purposes or (ii) the
amount of any ad valorem taxes levied against or paid with respect to the Property.
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6.14 Utilities. All public utilities (including, without limitation, sanitary sewer, storm
sewer, electricity, gas, water and telephone) required for the operation of the Property, or any
part thereof, are installed and operating and have been accepted by such utility company or
governmental authority. All installation and connection fees, "tie-in" charges, impact fees, tap -
on, permit and other fees with respect to the utilities or facilities now serving the Property,
including, but not limited, to water, sewer, electric, telephone and gas, have been fully paid,
except for monthly utility service bills which will be paid prior to delinquency. Seller has not
received any complaint or claim with respect to storm water flow from any owner of adjacent
property or otherwise. All such public utilities either enter the Land through adjoining public
streets or, if they pass through adjoining private land, do so in accordance with valid and
recorded public easements or private easements which inure to the benefit of Purchaser.
6.15 Condemnation. To Seller's actual knowledge, there are no proceedings pending
or threatened against or affecting the Property or any portion thereof or interest therein in the
nature of or in lieu of condemnation or eminent domain proceeding.
6.16 Assessments. Seller has no actual knowledge and Seller has not received written
notice of any assessments by a public body, whether municipal, county or state imposed,
contemplated or confirmed and ratified against any of the Property for public or private
improvements which are now or hereafter payable.
6.17 Contractors. All contractors, subcontractors, architects, materialmen, laborers,
suppliers and other parties who have performed or furnished work, labor, materials, equipment or
supplies or have labored on the Property to make improvements thereon or otherwise to improve
the Property are paid in full, and there are no unpaid claims related to work that has been
completed or is in progress.
6.18 No Hazardous Substances on Property. Seller has not caused Hazardous
Substances to be discharged, disbursed, released, stored, treated, generated, disposed of, or
allowed to escape on, in, or under the Property in a manner which violates any Legal
Requirements regulating such substances and, to the best of Seller's knowledge, no other Person
has caused Hazardous Substances to be discharged, disbursed, stored, treated, generated or
allowed to escape on, in or under the Property. No asbestos or asbestos containing materials have
been installed, used, incorporated into, or disposed of on the Property by Seller, or, to the best of
Seller's knowledge, by any other Person. No PCBs have been located on or in the Property,
whether in electrical transformers, fluorescent light fixtures with ballasts, cooling oils, or
otherwise, by Seller or, to the best of Seller's knowledge, by any other Person. No underground
storage tanks are currently located on, at or under the Property. To best of Seller's knowledge,
except for that certain Site Rehabilitation Completion Order dated November 27, 1995 issued by
the Florida Department of Environmental Protection, no investigation, administrative order,
consent order or agreement, litigation, or settlement with respect to Hazardous Substances is
proposed, threatened, anticipated or in existence with respect to the Property. The Property has
not previously been used as a landfill, a cemetery, or a dump for garbage or refuse by Seller or
any of its Affiliates or, to the best of Seller's knowledge, by any other Person. Seller hereby
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agrees to indemnify, protect, defend (through attorneys reasonably acceptable to Purchaser) and
hold harmless Purchaser and its council members, administrative officials, agents, employees,
successors and assigns from and against any and all claims, damages, losses, liabilities, costs and
expenses (including reasonable attorneys' fees) arising from or relating to the presence of any
Hazardous Substances or underground storage tanks at, on or under the Property prior to the
Closing Date and for any violation or breach of the foregoing representation and warranty. The
indemnities contained in this subsection 6.18 shall survive the Closing hereunder and any
termination of this Agreement.
6.19 No Rights to Purchase. Except for this Agreement, Seller has not entered into,
and has no actual knowledge of any agreement, commitment, option, right of first refusal or any
other agreement, whether oral or written, with respect to the purchase, assignment or transfer of
all or any portion of the Property which is currently in effect.
6.20 Operating Agreements. Seller has delivered to Purchaser true, complete and
correct copies of all Operating Agreements with respect to or affecting the Property or any
portion thereof. A complete listing of all Operating Agreements is attached hereto as Exhibit
"B". There are no agreements, contracts or undertakings affecting the Property, except the
Operating Agreements and the Permitted Exceptions. The Operating Agreements are in full force
and effect and as of the Closing Date the Surviving Contracts will be in full force and effect.
Neither Seller nor, to the actual knowledge of Seller, any other party to any of the Operating
Agreements, is in default thereunder, and no event or omission has occurred which, with the
giving of notice or lapse of time, or both, would constitute a default thereunder. There are no
restrictions upon Seller's ability to assign all of its right, title and interest to the Operating
Agreements to Purchaser at Closing. All Operating Agreements which are not Surviving
Contracts shall be terminated by Seller effective no later than the Closing Date and Seller shall
pay any penalty or premium due in connection therewith.
6.21 No Latent Defects. To Seller's actual knowledge, the Improvements are
structurally .sound, the roof is free of leaks and in good condition and the Property has no hidden
or latent defects.
6.22 Systems, Fixtures and Appliances. All plumbing, fire protection, alarm, heating,
ventilating, air conditioning, electrical, public and private utility, sewer, septic and other waste,
and other systems, and all fixtures and appliances (including, without limitation, trade fixtures)
included in the Property are in good working order and free of deferred maintenance.
6.23 Parties in Possession. Other than (i) the tenant under the Dry Cleaner's Lease (the
"Dry Cleaning Tenant") and (ii) the tenant under the BFI Lease (the "BFI Tenant"), there are no
parties in possession of any portion of the Land as lessees, tenants at sufferance or trespassers.
6.24 Dry Cleaner's Lease. The Leases are the only existing leases with respect to the
Real Property. The Dry Cleaner's Lease is in full force and effect as of the date hereof. A true
and correct copy of the Dry Cleaner's Lease, including all amendments, exhibits and
modifications thereto, is attached hereto as Exhibit "I-1". The Dry Cleaner's Lease is a month -to -
12
month lease. The Dry Cleaning Tenant does not have any right to renew or extend the term of
the Dry Cleaner's Lease, nor any interest in the Property other than a leasehold possessory
interest. Other that the Leases, there are no contracts or obligations between Seller and tenants,
either oral or written. Neither Seller nor the Dry Cleaning Tenant is in default under the Dry
Cleaner's Lease, and no event has occurred that, with the giving of notice or the passage of time,
or both, would constitute a default under the Dry Cleaner's Lease. The Dry Cleaning Tenant
does not have any offsets, defenses, claims or causes of action against Seller. The Dry Cleaning
Tenant is not contesting any amounts payable by it under the Dry Cleaner's Lease. The Dry
Cleaning Tenant has furnished an insurance certificate to Seller indicating that the insurance
coverage required by the Dry Cleaner's Lease is in full force and effect. The amount of the
security deposit under the Dry Cleaner's Lease is $1,500.00 and Seller is in possession of such
security deposit.
6.25 BFI Lease. The BFI Lease in full force and effect as of the date hereof. A true
and correct copy of the BFI Lease, including all amendments, exhibits and modifications thereto,
is attached hereto as Exhibit "I-2". The BFI Lease is a month -to -month lease. The BFI Tenant
does not have any right to renew or extend the term of the BFI Lease, nor any interest in the
Property other than a leasehold possessory interest. Neither Seller nor the BFI Tenant is in
default under the BFI Lease, and no event has occurred that, with the giving of notice or the
passage of time, or both, would constitute a default under the BFI Lease. The BFI Tenant does
not have any offsets, defenses, claims or causes of action against Seller. The BFI Tenant is not
contesting any amounts payable by it under the BFI Lease. The BFI Tenant has furnished an
insurance certificate to Seller indicating that the insurance coverage required by the BFI Lease is
in full force and effect. The amount of the security deposit under the BFI Lease is $2,130.00 and
Seller is in possession of such security deposit. The square footage of the premises demised
under the BFI Lease is 20 feet by 8 feet.
6.26 Performance of Landlord's Obligations. All work required to be performed by
the Seller as landlord under the Leases, and all other obligations of the landlord to be performed
thereunder, have been fully performed and paid for in full, or will be fully performed and paid for
on or before the Closing Date. All the representations on the part of the landlord contained in the
Leases are true and correct. The Seller, as landlord, has not waived any default under the Leases.
6.27 Dry Cleaner's Rent. The Rent and other charges presently being collected by the
Seller under the Dry Cleaner's Lease is $1,500.00 per month, plus 6.5% sales tax in the amount
of $97.50 per month. The Dry Cleaning Tenant is not entitled to any free rent, concessions,
rebates or refunds with respect to or on account of the Dry Cleaner's Lease. The Dry Cleaning
Tenant has not paid any Rents or other charges for more than one month in advance.
6.28 BFI Rent. The Rent and other charges presently being collected by the Seller
under the BFI Lease is $2,000.00 per month, plus 6.5% sales tax in the amount of $130.00 per
month. The BFI Tenant is not entitled to any free rent, concessions, rebates or refunds with
respect to or on account of the BFI Lease. The BFI Tenant has not paid any Rents or other
charges for more than one month in advance except for the last month's Rent in the amount of
$2,130.00.
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6.29 Leases Unencumbered. The Leases and none of the Rent payable thereunder have
been assigned, pledged or encumbered by Seller.
6.30 No Leasing Commissions. No brokerage or leasing commissions (including any
renewals or residuals) or other compensation are due or payable to any Person with respect to or
on account of the Leases.
6.31 Sales Tax. All sales tax required to be or collected by Seller in the operation of
the Real Property has been collected and paid to the appropriate Governmental Authority through
a current date.
6.32 Entrances and Exits. All current curb cuts, entrances and exits to the Real
Property are lawful and permitted.
6.33 Access. There is permanent vehicular and pedestrian egress from and egress to the
Land over public roads that about the Land.
6.34 No Commitments to Dedicate Property. 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 Land 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 Land, or otherwise impose liability on
Purchaser.
6.35 Adverse Conditions. Seller has no actual knowledge of any adverse fact relating
to the physical condition of the Land which has not been specifically disclosed in writing to
Purchaser, including, without limitation, adverse soil conditions.
6.36 Unrecorded Agreements Restricting Use of the Property. Seller has not, nor to
Seller's actual knowledge has any predecessor in title, executed or caused to be executed any
document with or for the benefit of any Governmental Authority restricting the development, use
or occupancy of the Property that is not recorded in the land records of the county in which the
Land is located or has not been specifically disclosed in writing to Purchaser.
6.37 Submission Documents. All Submission Documents delivered or made available,
or to be delivered or made available to Purchaser pursuant to this Agreement, are or upon
submission will be complete, accurate, true and correct in all material respects.
6.38 Wrongful Act. Seller has not undertaken any knowingly wrongful action and shall
indemnify, defend and hold harmless Purchaser from and against any action or claim of third
parties arising out of Seller's actions.
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6.39 Disclosure. No statement, warranty or representations by the Seller contains an
untrue statement of material fact or omits to state a material fact necessary in order to make the
statements made in light of the circumstances under which such statements are made not
misleading.
6.40 Survival. The foregoing representations, warranties, covenants and agreements of
Seller in this Section 6 shall survive the Closing or termination of this Agreement.
6.41 Actual Knowledge. As used in this Agreement or in any Exhibit attached hereto,
any reference to actual knowledge shall with respect to Seller mean the actual knowledge of Seller
and its trustees, agents, officers and employees who have any association with the ownership or
management of the Property.
SECTION 7: PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to Seller that the following facts and conditions exist
and are true as of the date hereof and shall exist and be true as of the date of the Closing.
7.1 Purchaser is validly formed municipal corporation in good standing organized and
existing under the laws of the State of Florida and has all requisite power and authority to
purchase the Land and to enter into and perform its obligations hereunder.
SECTION 8: SELLER'S COVENANTS
From and after the date hereof, through and including the Closing Date, Seller agrees as
follows (each of which covenants is a condition to Purchaser's obligations to close under this
Agreement and must be satisfied by Seller or waived by Purchaser in writing prior to Closing):
8.1 Inspection of Property. Seller will allow Purchaser and its agents and contractors
to enter upon the Property for any purpose in connection with Purchaser's proposed purchase, use
and operation of the Property.
8.2 Management Prior to Closing. Between the date of this Agreement and the
Closing Date, (a) Seller shall maintain, manage and operate the Property in the customary course
of business, committing or permitting no waste thereto, such that at the time of the Closing, the
Property shall be in substantially the same physical condition as on the date of Seller's execution
of this Agreement, ordinary wear and tear excepted, and (b) unless Purchaser has given its prior
written consent, Seller shall not make any changes to or alterations of the Property except to
perform emergency repairs (regarding which Purchaser shall be promptly advised in writing) and
any other work having Purchaser's prior written approval.
8.3 Notices. Seller shall, promptly upon Seller's obtaining knowledge thereof, provide
Purchaser with a written notice of any event which has an adverse effect on the operation or
physical condition of the Property.
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8.4 Notices of Violation. Promptly after Seller obtains actual knowledge or upon
receipt of written notice thereof, Seller has provided or shall provide Purchaser with written
notice of any violation of any Legal Requirements, or Insurance Requirements, affecting the
Property, any service of process relating to the Property or which affects Seller's ability to
perform its obligations under this Agreement or any other correspondence or notice received by
Seller which has or has the potential to have an adverse effect on the Property.
8.5 New Operating Agreements. After execution of this Agreement by Purchaser,
Seller shall not enter into any new agreements, contracts or undertakings, affecting the Property
or cancel, modify, extend or renew any Operating Agreement, nor waive any default under or
accept any surrender of any Operating Agreement without the prior written consent of Purchaser,
which consent may be given or withheld in Purchaser's sole and absolute discretion. Seller shall
submit to Purchaser a copy of such proposed agreement, together with such information regarding
the proposed agreement as is reasonably available to Seller and as Purchaser may reasonably
require. If Purchaser fails to respond to any requests for approval of such an agreement within
ten (10) Business Days after notice from Seller, Purchaser shall be deemed to have given its
approval to such agreement and within five (5) days thereafter, Seller shall provide Purchaser
with a certified copy of the fully executed instrument. Upon approval (or deemed approval) of
such agreement, the same shall thereupon be included within the definition of "Operating
Agreements" set forth herein.
8.6 Leases. Seller shall not modify or amend any of the Leases or enter into any lease
of the Real Property or any portion thereof without the prior written consent of Purchaser, which
consent may be given or withheld in Purchaser's sole and absolute discretion.
8.7 Notification of Change of Circumstances. Seller shall provide Purchaser with
written notice of any transaction or occurrence prior to Closing which could make any of the
warranties, representations, covenants and agreements of Seller under this Agreement not true
with the same force and effect, as if made on or as of the date hereof.
8.8 Seller's Cooperation. If requested by Purchaser, Seller will promptly execute all
petitions, applications, easements, plats, site plans, waivers of plats, and other documents which
Purchaser may reasonably request and otherwise reasonably cooperate with Purchaser in
connection with Purchaser obtaining or granting any permit, plat, waiver of plat, site plan
approval, easement, right-of-way dedication, rezoning, right-of-way deed, variance or other
administrative authorization required for Purchaser's proposed development of the Real Property.
8.9 Survival. Any claim for breach of the covenants contained in this Section 8 shall
survive the Closing.
SECTION 9: PURCHASER'S DUE DILIGENCE AND INSPECTION OF PROPERTY
9.1 Documents to be Delivered by Seller. Commencing five (5) days after the
Effective Date, Seller shall provide to Purchaser copies of all documents, records, reports,
16
studies, data and information relating to the Property in Seller's control or possession, including,
without limitation, the Operating Agreements, any existing tests, surveys, title policies, licenses,
permits, engineering and/or environmental analyses, soil test borings, Records and Plans,
Warranties, Permits and tax bills (the "Submission Documents").
9.2 Inspection of Property. Purchaser or its appointed agents or independent
contractors shall have, at all reasonable times prior to the Closing, the privilege of going upon the
Land and in the Improvements, at Purchaser's sole cost and expense, to inspect, examine, test,
investigate, appraise and survey the Property, including, without limitation, soils and
environmental tests and inspections. In exercising the privileges granted pursuant to this
subsection 9.2, Purchaser shall substantially restore the Property to the condition existing prior to
such activities on the Property. In consideration of Purchaser's right to inspect the Property as
described in this subsection 9.2, subject to the provisions and monetary limitations of Section
768.28, Florida Statutes, Purchaser agrees to indemnify, defend and hold Seller harmless from
any actions, suits, liens, claims, damages, expenses, losses and liability for damage to personal
property or personal injury arising from or attributable to any acts performed by Purchaser or its
appointed agents or independent contractors in exercising Purchaser's rights under this subsection
9.2 (including, without limitation, any rights or claims of materialmen or mechanics to liens on
the Property, but excluding any matter to the extent arising out of the negligence or misconduct of
Seller). This agreement to indemnify Seller shall survive the Closing and any termination of this
Agreement.
9.3 Conditions Precedent/Termination Right. In addition to any other termination
right or other remedy specified herein and notwithstanding any provision of this Agreement which
may be interpreted to the contrary, if Purchaser is dissatisfied, for any reason and in Purchaser's
exclusive judgment, with the results of Purchaser's investigation and study of the Property, then
Purchaser may terminate this Agreement by notifying Seller or Seller's Attorney of such
termination on or before the 5:00 p.m. on the Termination Date, whereupon the Earnest Money
shall be refunded to Purchaser by the Escrow Agent and thereafter neither party hereto shall have
any further rights, obligations, or liabilities hereunder except to the extent that any right,
obligation or liability set forth herein expressly survives termination of this Agreement.
SECTION 10: PURCHASER'S ADDITIONAL CLOSING CONTINGENCY
Purchaser's obligation to close the transaction contemplated by this Agreement and
purchase the Property is expressly subject and contingent upon Purchaser obtaining on or before
the Termination Date all final, non -appealable governmental approvals and exercises of authority
of Governmental Authorities, including, without limitation, approval by Council of the Village of
Key Biscayne and any referendum (collectively the "Governmental Approvals") to purchase the
Property and finance the acquisition thereof.
Purchaser shall have up to and including the Termination Date to obtain any and all
Governmental Approvals. If Purchaser does not obtain the Governmental Approvals on or before
the Termination Date, then Purchaser shall have the right to (i) terminate this Agreement by
notifying Seller or Seller's Attorney of such termination on or before the Termination Date or (ii)
17
waive this contingency. If this Agreement is terminated by Purchaser, the Earnest Money shall
be refunded to Purchaser by the Escrow Agent and thereafter neither party hereto shall have any
further rights, obligations, or liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement.
Seller consents to Purchaser processing the necessary Governmental Approvals and agrees
at Purchaser's request to execute any reasonable documentation necessary or appropriate in
connection with Purchaser obtaining the Governmental Approvals.
SECTION 11: COVENANT RUNNING WITH THE LAND
At Closing, Purchaser agrees to execute a Covenant Running with the Land (the "Name
Display Covenant") substantially in the form of Exhibit "K" attached hereto providing that the
name "C.G. 'Bebe' Rebozo" shall be displayed on a sign or monument, engraved or displayed by
other means (the "Name Display") on one of the primary municipal buildings intended to be
constructed at the Property (i.e., by means of example only and not by means of limitation, a fire
station, community center, police station or Village Hall) or, if a primary municipal building is
not constructed at the Property, then at the courtyard or plaza intended to be located at the
Property. The Name Display shall not be placed on such primary municipal building, courtyard
or plaza as selected by Purchaser until construction and completion thereof and shall be subject to
cessation for reasonable periods of time by reason of force majeure, acts of god, fire or other
casualty, repairs, restoration, renovation, alteration, or causes beyond the control of Purchaser.
Notwithstanding anything to the contrary contained in the Name Display Covenant, if, after
construction and completion of the primary municipal building, courtyard or plaza upon which the
Name Display is located, such primary municipal building, courtyard or plaza is wholly or
partially destroyed and Purchaser does not elect to rebuild, restore or repair such primary
municipal building, courtyard or plaza, then Purchaser shall not be obligated to replace the Name
Display thereon. The minimum size of the Name Display shall be twenty-four (24) square feet
(the "Required Minimum Size"). If the Name Display is placed on a primary municipal building,
then the Name Display shall be visible from the front entrance thereof (the "Building Visibility
Requirement") . If a primary municipal building is not constructed at the Property and the Name
Display is placed at the courtyard or plaza intended to be located at the Property, then the Name
Display shall be placed in a prominent location at such courtyard or plaza (the "Courtyard/Plaza
Visibility Requirement"). Provided that the Name Display is the Required Minimum Size and the
Building Visibility Requirement or Courtyard/Plaza Visibility Requirement, as applicable, is met,
the size, location, lettering and design of the Name Display shall be determined and selected by
Purchaser in its sole discretion. The Name Display Covenant shall automatically terminate on the
date that the Property is no longer owned by Purchaser. If the Property is no longer owned by
Purchaser and the Name Display Covenant is thereby terminated, then Purchaser agrees to change
the name of that portion of West McIntyre Street fronting the Property which is the block located
between Crandon Boulevard and Fernwood Road to "Rebozo Boulevard", "Rebozo Street" or
"Rebozo Road". The Name Display Covenant shall be in recordable form. Purchaser agrees to
cause the Name Display Covenant to be promptly recorded after recordation of the Deed. The
provisions of this Section 11 shall survive the Closing.
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SECTION 12: CLOSING
Subject to satisfaction of all conditions to Closing, the Closing shall be held during regular
business hours on the date which is ninety (90) days after the Effective Date. The Closing shall
be held at the offices of Purchaser's Attorney, at a time mutually acceptable to both parties. If no
such selection is timely made, the Closing shall be held at 10:30 a.m. local time on the Closing
Date or at such other time or such other place as may be mutually agreed in writing by the parties
hereto.
12.1 Delivery: Possession. At Closing, Seller shall deliver to Purchaser the items
required of Seller under this Agreement, and Purchaser shall deliver to Seller the balance of the
Purchase Price (after crediting the Earnest Money and making other adjustments and prorations as
provided herein) and the other items required of Purchaser under this Agreement. Seller shall
deliver possession of the Property to Purchaser, subject only to the Permitted Exceptions at the
time of Closing. Risk of loss shall remain with Seller until Closing.
12.2 Closing Costs.
12.2.1
12.2.2
12.2.3
Seller's Costs. Seller shall pay (i) property transfer, conveyance,
sales and other taxes due on the transfer of the Property, (ii) the fees
and expenses of Seller's attorneys, (iii) the documentary stamps and
surtaxes due on the Deed, (iv) the cost of recording any corrective
instruments, (v) one-half of the cost of the Survey if Seller does not
provide Purchaser with an existing survey of the entire Property,
(vi) the cost of the abstract continuation or the cost of the computer
title search update and STAR Report and (vii) the fees and expenses
of Seller's attorneys.
Purchaser's Costs. Purchaser shall pay (i) any costs incurred by
Purchaser in preparing and performing its due diligence
investigations, (ii) the cost of the Title Commitment, (iii) the
premium for the Owner's Title Policy, (iv) the cost of recording the
Deed, (v) the cost of the Survey, if Seller provides Purchaser with
an existing survey of the entire Property, (vi) one-half (1/2) of the
cost of the Survey, if Seller does not provide Purchaser with an
existing Survey of the entire Property, and (vii) the fees and
expenses of Purchaser's attorneys.
Other Costs. Any other costs not specifically provided for in
subsection 12.2.1, subsection 12.2.2 or otherwise pursuant to the
terms of this Agreement shall be paid by the party who incurred
those costs, or if neither party is charged with incurring any such
19
costs, then by the party customarily assessed for such costs in the
place where the Property is located. Any escrow fees, document
preparation charges of the Title Company and other escrow related
charges of the Escrow Agent in its capacity as escrow agent only
shall be paid equally by Seller and Purchaser.
12.3
Property or otherwise to
conditioned upon the fulfil
or before the Closing Date
discretion) :
12.3.1
12.3.2
12.3.3
12.3.4
12.3.5
12.3.6
12.2.4
Survival. The provisions of this subsection 12.2 shall survive the
Closing and the delivery of the Deed.
Purchaser's Conditions to Closing. Purchaser's obligation to purchase the
perform any obligation provided in this Agreement is expressly
lment or satisfaction of each of the following conditions precedent on
(any of which may be waived only in writing by Purchaser in its
Seller shall have fully performed each undertaking and covenant and
agreement to be performed by Seller under this Agreement
including, but not limited to, delivery of all items and documents
required under Section 14 below;
Each representation and warranty made in this Agreement by Seller
shall be complete, true and accurate;
The Owner's Title Policy shall be issued, or in lieu of issuance of
the foregoing at Closing, the Title Company shall have delivered a
"marked up" Title Commitment, subject only to the Permitted
Exceptions, with gap coverage, deleting all requirements and
deleting the standard exceptions;
Seller shall have delivered to Purchaser, at no cost to Purchaser, an
executed termination of each Operating Agreement which Purchaser
designates is to be terminated by written notice to Seller on or
before the Termination Date;
Without additional cost or charge to Purchaser, all Permits,
Warranties and other Intangible Property shall be assigned to
Purchaser, to the extent the same are assignable;
Except as cured by Seller or otherwise approved or waived in
writing by Purchaser, no event shall have occurred which may have
an adverse effect on the operation or physical condition of the
Property;
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12.3.7
12.3.8
12.3.9
No amendments, restatement, adoption or repeal of any laws,
statutes, codes, acts, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, permits, licenses, authorizations,
directions and requirements of all governmental authorities,
officials, agencies and officers, ordinary or extraordinary, shall have
occurred which is applicable to the Property and has or could have
an adverse effect upon the value, use, operation, zoning,
development or condition thereof.
There shall be no development or building moratoria in effect with
regard to the Property as of the Closing Date, including, without
limitation, any prohibition arising from a failure to meet
concurrency standards established under Chapter 163 of the Florida
Statutes, the administrative rules thereunder and local governmental
ordinances and regulations thereunder.
The Land shall have been subdivided from all other property in
accordance with all applicable governmental requirements and shall
be assessed as a separate tax lot or tax parcel, independent of all
other parcels of land not being conveyed hereunder.
If any of the foregoing conditions are not satisfied at or before Closing, then in addition to
any remedy available to Purchaser under this Agreement, Purchaser may terminate this
Agreement by written notice to Seller, in which event the Earnest Money shall be returned to
Purchaser and the parties shall be released from all obligations and liabilities under this
Agreement except those that expressly survive termination of this Agreement.
SECTION 13: PRORATIONS AND CREDITS AT CLOSING
All prorations provided to be made "as of the Closing Date" shall each be made as of
11:59 p.m. local time on the date immediately preceding the Closing Date. In each proration set
forth below, the portion thereof allocable to periods beginning with the Closing Date shall be
credited to Purchaser, or charged to Purchaser, as applicable, at Closing or, in the case of
allocations made after Closing, upon receipt of such payments or invoice as of the Closing Date.
Except as may otherwise be specified herein, the following items shall, as applicable, be prorated
between Purchaser and Seller or credited to Purchaser or Seller:
13.1 Property Taxes and Assessments.
13.1.1
Taxes. Seller acknowledges and agrees that the Property is being
purchased by an exempt governmental entity and that the Seller must
comply with Section 196.295, Florida Statutes, regarding real estate
taxes.
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13.1.2
Special Assessments. Certified, confirmed and ratified special
assessment liens as of Date of Closing (and not as of the date of this
Agreement) shall be paid by Seller or Purchaser shall receive a
credit therefor. Pending liens as of Date of Closing shall be
assumed by Purchaser; provided, however, that where the
improvement for which the special assessment was levied, had been
substantially completed as of the date of this Agreement, such
pending liens shall be considered as certified, confirmed or ratified
and Seller shall, at Closing, be charged an amount equal to the
estimated assessment for the improvement.
13.2 Utility Expenses and Payments. Seller shall have sole responsibility for all utility
charges accrued as of the Closing Date. Purchaser shall be responsible for making any necessary
arrangements for the continuation of all utility services to the Property following Closing. Seller
shall cooperate with Purchaser and execute all necessary documents as reasonably required by
Purchaser to accomplish the foregoing.
13.3 Operating Agreement Payments. All payments due or made under any Surviving
Contracts shall be prorated as of the Closing Date, except that Seller shall be solely responsible
for payments made to cure any default by Seller under the Surviving Contracts.
13.4 Rent. Seller shall be entitled to all Rent for the period to the Closing Date;
Purchaser shall be entitled to all Rent accruing as of the Closing Date and receive a credit at
Closing therefore. However, if at the time of Closing there shall be any delinquent Rent owing
from the Dry Cleaning Tenant or the BFI Tenant covering any period of time, or any obligation
incurred, prior to the Closing Date, Purchaser shall use reasonable efforts to collect such
delinquent Rent and shall promptly remit the same to Seller upon receipt by Purchaser, but shall
have no obligation to institute any proceedings. Any Rent collected by Purchaser shall be applied
first to current Rent due, and thereafter to delinquent Rent. Purchaser may deduct its reasonable
collection expenses from Rents collected prior to remitting such rents to Seller.
13.5 Security Deposits and Prepaid Rentals. Security deposits in the possession of
Seller and any interest accrued thereon shall be transferred to Purchaser -at Closing. Purchaser
shall be given a credit against the Purchase Price for all prepaid rentals paid by tenants under the
Leases.
13.6 Other Matters. Seller and Purchaser shall make such other adjustments and
apportionments as are expressly set forth in this Agreement.
13.7 Survival. The provisions of this Section 13 shall survive the Closing and the
delivery of the Deed. In the event fmal figures have not been reached on any of the adjustments,
prorations or costs which are to be adjusted at or prior to Closing pursuant to this Section 13, the
parties shall close using adjustments and prorations reasonably estimated by Seller and Purchaser,
subject to later readjustment when such fmal figures have been obtained. The parties hereto agree
that they shall seek to determine the amounts of all prorations and adjustments required hereunder
22
on or before the Closing Date, if possible, and to the extent not then obtainable within one (1)
year of Closing.
SECTION 14: CONVEYANCES AND DELIVERIES AT CLOSING
14.1 Warranty Deed. At Closing, Seller shall convey the Land and Improvements to
Purchaser by a duly executed and recordable statutory warranty deed in substantially the form
attached hereto as Exhibit "D" (herein referred to as "Deed"), subject only to the Permitted
Exceptions.
14.2 Bill of Sale. At Closing, Seller shall also convey the Personal Property to
Purchaser by a duly executed Bill of Sale in substantially the form attached hereto as Exhibit "E".
14.3 Assignment of Surviving Contracts and Other Interest. At Closing, Seller shall
assign to Purchaser, and Purchaser shall assume, Seller's interest in the Surviving Contracts, by
duly executed assignment and assumption agreement substantially in the form attached hereto as
Exhibit "F". Seller shall obtain any and all necessary consents for assignment and shall deliver
the same to Purchaser at or prior to Closing.
14.4 Assignment of Leases and Security Deposits. At Closing, Seller shall execute
and deliver to Purchaser a duly executed Assignment of Leases and Security Deposits in
substantially the form attached hereto as Exhibit "J", together with the original Leases and any
guarantees thereof.
14.5 Contracts, Records and Plans. At or simultaneously with the Closing, Seller
shall deliver to Purchaser the originals (or if originals are unavailable, certified copies) of the
Surviving Contracts, the Warranties, the Records and Plans, the Plans and Specifications and the
Permits. Seller may keep copies of such materials at Seller's sole cost and expense.
14.6 Section 1445 Certificate. At Closing, Seller shall execute and deliver to
Purchaser and the Title Company a certificate substantially in the form as Exhibit "G" attached
hereto stating that Seller is not a "foreign person" as defined in Section 1445 of the Internal
Revenue Code and the regulations thereunder.
14.7 Form 1099. At Closing, Seller shall execute and deliver to Purchaser and the
Title Company such federal income tax reports respecting the sale of the Property as required by
the Internal Revenue Code and such other information required by the Title Company to complete
IRS Form 1099 with respect to this transaction.
14.8 Termination of Agreements. Seller shall, at Closing, deliver to Purchaser an
executed original of an agreement terminating, as of the Closing Date, any and all Operating
Agreements which are not Surviving Contracts.
23
14.9 Affidavit of Title. At Closing, Seller shall execute and deliver to Purchaser and to
the Title Company a no -lien, possession and gap title affidavit in the form required by the Title
Company, together with such resolutions, affidavits, documents and certificates as the Title
Company may reasonably require to issue the Owner's Title Policy in accordance with the terms
of this Agreement.
14.10 Closing Statement. At Closing, Seller and Purchaser shall execute and deliver a
Closing Statement which shall, among other items, set forth the Purchase Price, all credits against
the Purchase Price, the amounts of all prorations and other adjustments to the Purchase Price and
all disbursements made at Closing on behalf of Purchaser and Seller in accordance with the terms
of this Agreement.
14.11 Tenant Estoppel Certificates. At Closing, Seller shall deliver to Purchaser an
estoppel certificate from each of the Dry Cleaning Tenant and the BFI Tenant in a form
prescribed by Purchaser, dated no earlier than fifteen (15) days before the Closing Date, and
Purchaser shall have approved any material modifications made by the Dry Cleaning Tenant or
the BFI Tenant to such form and any information inserted by the Dry Cleaning Tenant or the BFI
Tenant which is at variance with the information contained in this Agreement with respect to the
Dry Cleaner's Lease and the BFI Lease.
14.12 Tenant Letter. A letter to each of the Dry Cleaning Tenant and the BFI Tenant
advising the Dry Cleaning Tenant and the BFI Tenant of the sale to Purchaser of the Property and
directing the Dry Cleaning Tenant and the BFI Tenant to pay all Rent accruing under their
respective Leases from and after the Closing Date to Purchaser and to recognize Purchaser as
landlord under their respective Leases.
14.13 Evidence of Authority. At Closing, Seller shall update Evidence of Authority
dated not more that five days before the Closing Date.
14.14 Trust Agreement. At Closing, Seller shall deliver to Title Company (i) a
certified copy of all or such portions of Seller's trust agreement as shall be required by the Title
Company, (ii) a memorandum of Seller's trust agreement or affidavit with respect to Seller's trust
agreement in recordable form, which memorandum or affidavit shall be in such form and shall
contain such information as required by the Title Company and (iii) such other documentation
with respect to Seller's trust agreement as the Title Company may require to issue the Owner's
Title Policy in accordance with the terms of this Agreement.
14.15 General Assignment. At Closing, Seller will deliver to Purchaser a general
assignment, to the extent assignable, of the Records and Plans, Warranties, Permits, the
Intangible Property and all other property and rights included in the transaction contemplated by
this Agreement, which assignment shall be substantially in the form attached hereto as Exhibit
II H I,
24
14.16 Transfer Tax Returns. At Closing, Seller will execute and deliver Florida
Department of Revenue Form DR -219.
14.17 Disclosure Affidavit. At least ten (10) days prior to Closing,. Seller shall execute
and deliver to Purchaser an affidavit in recordable form as required by the provisions of Section
286.23, Florida Statutes.
14.18 Conveyance of Awards. At Closing, Seller shall, if and to the extent applicable,
deliver to Purchaser all proper instruments for the conveyance of any condemnation, insurance or
other awards or proceeds described in and subject to and in accordance with Section 16 hereof, all
duly executed by Seller.
14.19 Physical Possession. At Closing, Seller shall deliver to Purchaser keys to the
Property, any tenant keys, and possession of the Property, subject only to the rights of (i) the Dry
Cleaning Tenant under the Dry Cleaner's Lease and (ii) the BFI Tenant under the BFI Lease.
14.20 Seller's Certificate. At Closing, Seller shall deliver to Purchaser a certificate of
Seller dated as of the Closing Date certifying (i) that all representations and warrantees of Seller
under this Agreement are true and correct, in all respects as of the Closing Date (except as the
same may have been changed as permitted in accordance with the terms of this Agreement and
disclosed to Purchaser prior to Closing) and (ii) to Seller's actual knowledge, that there has
occurred no default or breach, nor any event which with notice or with the passage of time, or
both, would constitute such a default or breach by Seller under this Agreement.
14.21 Seller's Affidavit. At Closing, Seller shall deliver to Purchaser an Affidavit, in
form reasonably satisfactory to Purchaser, confirming that Seller is duly formed, validly existing
and in good standing under the laws of the state of its formation and in the state where the
Property is located; that Seller and the person executing the closing documents on behalf of Seller
has the power and authority to execute and deliver this Agreement and perform its obligations
hereunder; and that the execution, delivery and performance of this Agreement and of all
instruments to be executed and delivered by Seller hereunder have been duly authorized by all
necessary action on the part of Seller and will not conflict with or result in a breach of or any
order, judgment, writ, injunction or decree of any court or governmental instrumentality, or of
the trust agreement of Seller or any agreement or instrument to which Seller is a party or by
which it is bound, or to which the Property is subject.
14.22 Name Display Covenant. At Closing, Purchaser shall execute the Name Display
Covenant substantially in the form of Exhibit "K" attached hereto.
14.23 Other Documents. At Closing, Seller and Purchaser shall deliver to each other
any other documents expressly required to be delivered or furnished pursuant to any other
provisions of this Agreement or reasonably required to carry out the purpose and intent of this
Agreement.
25
SECTION 15: NOTICES
All notices, consent, approvals and other communications which may be or are required to
be given by either Seller or Purchaser under this Agreement shall be properly given only if made
in writing and sent by (a) hand delivery, (b) electronic facsimile or other transfer device with
telephone or other confirmation of receipt, provided that a hard copy of such notice is mailed by
US first class mail, postage prepaid, on or before the next Business Day following such telecopy
delivery or (c) a nationally recognized overnight delivery service (such as Federal Express, UPS
Next Day Air, Purolator Courier or Airborne Express), with all delivery charges paid by the
sender and addressed to the Purchaser or Seller, as applicable, as follows, or at such other
address as each may request in writing. Such notices shall be deemed received, (1) if delivered
by hand or overnight delivery service on the date of delivery and (2) if sent by electronic transfer
on the date transmission is confirmed by telephone or return electronic transfer from the receiving
party, provided that a hard copy of such notice is mailed by US first class mail, postage prepaid,
on or before the next Business Day following such telecopy delivery. The refusal to accept
delivery shall constitute acceptance and, in such event, the date of delivery shall be the date on
which delivery was refused. Said addresses for notices are to be as follows:
IF TO SELLER:
Thomas H. Wakefield, Co -Trustee
Charles Fred Rebozo, Co -Trustee
Mary R. Bouterse, Co -Trustee
c/o Olga Guilarte
524 Femwood Road
Key Biscayne, FL 33149
Telecopy No.: (305) 365-0041
with a copy to:
Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A.
5th Floor Grove Plaza Building
2900 Middle Street (S.W. 28th Terrace)
Miami, Florida 33133
Attention: Nicholas E. Christin, Esq.
Telecopy No.: (305) 441-1745
IF TO PURCHASER:
Village of Key Biscayne
85 West McIntyre Street
Key Biscayne, Florida 33149
Attention: C. Samuel Kissinger, Village Manager
Telecopy No.: (305) 365-8936
26
with a copy to:
Weiss Serota Helfman Pastoriza & Guedes, P.A.
2665 South Bayshore Drive
Suite 420
Miami, Florida 33133
Attention: Elaine M. Cohen, Esq.
Telecopy No.: (305) 854-2323
SECTION 16: CASUALTY AND CONDEMNATION
16.1 Casualty. Prior to the Closing Date, and notwithstanding the pendency of this
Agreement, the entire risk of loss or damage by fire or other casualty shall be borne and assumed
by Seller, except as otherwise provided in this subsection 16. Until the Closing has occurred,
Seller shall keep all insurance policies in effect with respect to the Property. If, prior to the
Closing Date, any part of the Property is damaged or destroyed by fire or other casualty, Seller
shall immediately notify Purchaser of such fact. If such damage or destruction is material (as
defined below), Purchaser shall have the option to terminate this Agreement upon written notice
to Seller given not later than thirty (30) days after receipt of Seller's notice. For purposes hereof
"material" shall be deemed to be any uninsured damage or destruction to the Property (except that
a casualty shall not be deemed uninsured solely because all, or a portion of, the cost of the
casualty is subjected to a deductible) or any insured damage or destruction (i) where the cost of
repair or replacement is estimated, in Purchaser's good faith judgment, to be Thirty -Five
Thousand and No/ 100 or more for the Improvements, or (ii) where the repair or replacement is
estimated, in Purchaser's good faith judgment, to require more than one hundred twenty (120)
days to repair. If Purchaser does not exercise this option to terminate this Agreement, or if the
casualty is not material, neither party shall have the right to terminate this Agreement, and the
parties shall proceed to the Closing pursuant to the terms hereof without modification of the terms
of this Agreement and without any reduction in the Purchase Price but, Seller, at Closing, shall
assign to Purchaser, and Purchaser shall be entitled to receive and keep, all insurance proceeds
payable with respect to such casualty, plus Seller shall pay over to Purchaser the sum of (a) all
insurance proceeds previously paid to Seller with respect to such casualty (other than amounts
expended by Seller for emergency repairs or for repairs which are approved in writing by
Purchaser) and (b) an amount equal to the deductible amount with respect to the insurance. In
such event, Seller shall not be obligated to repair or restore the Property. If Purchaser does not
elect to terminate this Agreement by reason of any casualty, Purchaser shall have the right to
participate in any adjustment of the insurance claim and, in such event, Purchaser and Seller shall
cooperate each with the other in good faith.
16.2 Condemnation. At Closing, Seller shall assign to Purchaser all of Seller's right,
title and interest in and to the beds of streets, roads, alleys, avenues and highways abutting the
Property and all of Seller's right, title and interest in and to all awards in condemnation, or
damages or any kind, to which Seller is entitled at the time of Closing, by reason of any exercise
of power of eminent domain with respect thereto or for the taking of the Property or any part
27
thereof or by reason of any other event affecting the Property which gives rise to a damage claim
against a third Party after the date hereof. Prior to the Closing Date, if all or any portion of the
Property is taken, or if access thereto is reduced or restricted by eminent domain or otherwise (or
if such taking, reduction or restriction is pending, threatened or contemplated) (hereinafter a
"Condemnation Proceeding"), Seller shall immediately notify Purchaser of such fact. In the
event that such notice related to the taking of all or any portion of the Property, Purchaser shall
have the option, in its sole and absolute discretion, to terminate this Agreement upon written
notice to Seller given not later than thirty (30) days after receipt of Seller's notice; whereupon the
Earnest Money shall be refunded to Purchaser and thereafter neither Party shall have any rights,
obligations or liabilities hereunder except with respect to those rights, obligations or liabilities
which expressly survive the termination of this Agreement. If Purchaser does not elect to
terminate this Agreement as herein provided, Seller shall pay to Purchaser any award received by
Seller prior to Closing and Purchaser shall have the right to participate with Seller in any
Condemnation Proceeding affecting the Property; provided, that in doing so Purchaser shall
cooperate with Seller in good faith.
SECTION 17: BROKERS
Each party represents to the other that such party has not incurred any obligation to any
broker, finder or real estate agent with respect to the purchase or sale of the Property. Each of
Seller and Purchaser warrants and represents to the other that such party has employed (expressly
or impliedly) no broker, agent or other such Person as to which a commission or other such fee is
or would become due or owing as a result of the purchase and sale contemplated hereby and has
made no agreement (express or implied) to pay any broker's commission or other such fees in
connection with the purchase and sale contemplated by this Agreement. Each of Seller and
Purchaser agrees to indemnify and defend the other against, and to hold the other harmless of and
from all claims, demands and liabilities (including reasonable attorney's fees and expenses
incurred in defense thereof) for any commission or fees payable to, or claimed by, any broker,
agent or other such Person arising out of the employment or engagement of such Person employed
(expressly or impliedly) by Seller of Purchaser, as applicable, or with whom Seller or Purchaser,
as applicable, has or is claimed to have, made an agreement (express or implied) to pay a
commission or other such fee; provided, however, Purchaser's indemnification obligations under
this Section 17 are subject to the provisions and monetary limitations of Section 768.28, Florida
Statutes. The representation, warranties, undertakings and indemnities of this Section 17 shall
survive the Closing hereunder and any termination of this Agreement.
SECTION 18: INDEMNITIES
18.1 Seller's Indemnity. Seller hereby agrees to indemnify, protect, defend (through
attorneys reasonably acceptable to. Purchaser) and hold harmless Purchaser and its council
members, administrative officials, agents, employees, successors and assigns from and against
any and all claims, damages, losses, liabilities, costs and expenses (including reasonable
attorneys' fees actually incurred) which may at any time following the Closing Date be asserted
against or suffered by Purchaser arising out of or resulting from the following (whether asserted
or accruing before or after Closing):
28
18.1.1
18.1.2
any personal injury or property damage occurring prior to the
Closing Date unless caused by the negligence of Purchaser or its
agents or contractors;
any amounts due under any Surviving Contract for a period prior to
the Closing Date, and with respect to any Operating Agreements that
are not being assumed by Purchaser, any amounts coming due under
those Operating Agreements;
18.1.3 utility bills for the period prior to Closing Date;
18.1.4 any sales, use or other taxes payable in connection with this
transaction or with respect to the operation of the Property prior to
Closing;
18.1.5
Seller's failure to comply with the provisions of this Agreement
which require performance or payment on the part of Seller after
Closing.
18.3 Survival. The provisions of Section 18 shall survive the Closing hereunder and
the delivery of the Deed.
SECTION 19: DEFAULT/REMEDIES
19.1 Seller's Default/Purchaser's Remedies. Notwithstanding any other remedy
provided for herein, if Seller defaults in the observance or performance of its covenants and
obligations hereunder, Purchaser may, at its option, terminate this Agreement and receive a
refund of the Earnest Money or seek specific performance of this Agreement, without in either
case waiving any action for damages resulting from Seller's breach.
19.2 Purchaser's Default/Seller's Remedies. If Purchaser defaults in the observance
or performance of its covenants and obligations hereunder, then Seller, as its sole and exclusive
remedy, shall (as an election of remedies) receive the Earnest Money from Escrow Agent as
liquidated damages. Purchaser and Seller acknowledge the difficulty of ascertaining the actual
damages in the event of such default, that it is impossible to more precisely estimate the damages
to be suffered by Seller upon such default, that the retention of the Earnest Money by Seller is
intended not as a penalty but as full liquidated damages and that such amount constitutes a good
faith estimate of the potential damages arising therefrom. Seller's right to so terminate this
Agreement and to receive liquidated damages as aforesaid is Seller's sole and exclusive remedy.
Seller hereby waives, relinquishes and releases any and all other rights and remedies, including
but not limited to: (1) any right to sue Purchaser for damages or to prove that Seller's actual
damages exceed the amount which is hereby provided Seller as fully liquidated damages or (2)
any other right or remedy which Seller may otherwise have against Purchaser, either at law, or
equity or otherwise.
29
SECTION 20: ASSIGNMENT
Purchaser may assign its rights under this Agreement.
SECTION 21: ESCROW AGENT
21.1 Performance of Duties. Escrow Agent undertakes to perform only such duties as
are expressly set forth m this Agreement. Escrow Agent shall not be deemed to have any implied
duties or obligations under or related to this Agreement.
21.2 Reliance. Escrow Agent may (i) act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine; (ii) assume the validity and accuracy of
any statement or assertion contained in such a writing or instrument; and (iii) 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 corrections 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.
21.3 Right to Interplead. 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.
21.4 Attorney's Fees and Costs. In any suit between Purchaser and Seller wherein
Escrow Agent is made a party because of acting as Escrow Agent hereunder, or in any suit
wherein Escrow Agent interpleads the subject matter of the Escrow, Escrow Agent shall recover
reasonable attorney's fees and costs incurred with the fees and costs to be paid from and out of
the escrowed funds or equivalent and charged and awarded as court costs in favor of the
prevailing party. The parties hereby agree that Escrow Agent shall not be liable to any party or
person for misdelivery to Purchaser or Seller of items subject to this escrow, unless such
misdelivery is due to willful breach of this Agreement or gross negligence of Escrow Agent.
21.5 Escrow Agent as Counsel for Purchaser. It is acknowledged that Escrow Agent
is counsel for Purchaser. It is agreed that Escrow Agent shall not be disabled or disqualified from
representing Purchaser, its council members, parents, officers, directors or agents in connection
with any dispute or litigation which may arise out of or in connection with this transaction or this
Agreement as a result of Escrow Agent acting as the escrow agent under this Agreement and the
Seller, waives any claim or right to assert a conflict arising out of or in connection with the
foregoing.
30
SECTION 22: GENERAL PROVISIONS
22.1 Entire Agreement. This Agreement, and- all the Exhibits referenced herein and
annexed hereto, contain the final, complete and entire agreement of the parties hereto with respect
to the matters contained herein, and no prior agreement or understanding pertaining to any of the
matters connected with this transaction shall be effective for any purpose. Except as may be
otherwise expressly provided herein, the agreements embodied herein may not be amended except
by an agreement in writing signed by the parties hereto.
22.2 Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Florida.
22.3 Further Assurances. Seller and Purchaser each agrees to execute and deliver to
the other such further documents or instruments as may be reasonable and necessary in
furtherance of the performance of the terms, covenants and conditions of this Agreement. This
covenant shall survive the Closing.
22.4 Interpretation. The titles, captions and paragraph headings are inserted for
convenience only and are in no way intended to interpret, define, limit to expand the scope or
content of this Agreement or any provision hereto. If any party to this Agreement is made up 'of
more than one Person, then all such Persons shall be included jointly and severally, even though
the defined term for such party is used in the singular in this Agreement. This Agreement shall
be construed without regard to any presumption or other rule requiring construction against the
party causing this Agreement to be drafted. If any words or phrases in this Agreement shall have
been stricken out or otherwise eliminated, whether or not any other words of phrases have been
added, this Agreement shall be construed as if the words or phrases so stricken out or otherwise
eliminated were never included in this Agreement and no implication or inference shall be drawn
from the fact that said words or phrases were so stricken out or otherwise eliminated.
22.5 Counterparts. This Agreement may be executed in separate counterparts. It shall
be fully executed when each party whose signature is required has signed at least one counterpart
even though no one counterpart contains the signatures of all of the parties of this Agreement.
Facsimile copies shall be deemed originals.
22.6 Non -waiver. No waiver by Seller or Purchaser of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by such party. No delay or
omission in the exercise of any right or remedy accruing to Seller or Purchaser upon any breach
under this Agreement shall impair such right to remedy or be construed as a waiver of any such
breach theretofore or thereafter occurring. The waiver by Seller or Purchaser of any breach of
any term, covenant or condition herein stated shall not be deemed to be a waiver of any other
breach, or of a subsequent breach of the same or any other term, covenant or condition herein
contained.
31
22.7 Severability. This Agreement is intended to be performed in accordance with and
only to the extent permitted by applicable law. If any provisions of this Agreement or the
application thereof to any Person or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, but the extent of the invalidity or unenforceability does not destroy the
basis of the bargain between the parties as contained herein, the remainder of this Agreement and
the application of such provision to other Persons or circumstances shall not be affected thereby,
but rather shall be enforced to the greatest extent permitted by law.
22.8 Exhibits. The Exhibits referred in and attached to this Agreement are incorporated
herein in full by this reference.
22.9 Attorneys' Fees. In the event of any controversy, claim or dispute between the
parties arising from or relating to this Agreement (including, but not limited to, the enforcement
of any indemnity provisions), the prevailing party shall be entitled to recover reasonable costs,
expenses and attorneys' fees including, but not limited to, court costs and other expenses through
all appellate levels.
22.10 Business Days. If any date provided for in this Agreement shall fall on a day
which is not a Business Day, the date provided for shall be deemed to refer to the next Business
Day.
22.11. Time is of the Essence. Time is of the essence in this Agreement.
22.12 No Personal Liability of Council Members, Administrative Officials or
Representatives of Purchaser. Seller acknowledges that this Agreement is entered into by a
municipal corporation as Purchaser and Seller agrees no individual council member,
administrative official or representative of Purchaser shall have any personal liability under this
Agreement or any document executed in connection with the transactions contemplated by this
Agreement.
22.13 Effective Date. If this Agreement is not executed by and delivered to all parties to
it on or before July 9, 1999, at 5:00 p.m., this Agreement shall, after that time, be null and void
and of no further force and effect and neither party shall have any obligations hereunder. For
purposes of calculation of all time periods within which Seller or Purchaser must act or respond
as herein described, all phrases such as "the date of this Agreement", "the date of execution of
this Agreement" or any other like phrase referring to the date of the Agreement, shall mean and
refer to the "Effective Date" of this Agreement.
22.14 Radon Disclosure. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit. Pursuant to §404.056(8), Florida Statutes.
32
Sent By: VILLAGE OF KEY BISCAYNE; 305 3658936; Ju1-23-99 12:06; Page 2.2
.r./23/99 FRI 11:18 FAX 305 854 2323 APE I SS SEROTA & HELFYAN 003
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22.15 Waiver of Trial by Jury. SELLER AND PURCHASER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION
WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT AND ANY OTHER
DOCUMENT OR INSTRUMENT NOW OR HEREAFTER EXECUTED AND DELIVERED
IN CONNECTION THEREWITH.
22.16 No Negotiation With Other Persons. Seller agrees not to contract to sell or enter
into negotiations for the sale of the Property to any person or entity other than Purchaser for so
long as this Agreement is in effect.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed, as of the day and year first above written.
Witnesses: SELLER:
7\/\-/'
die„
/\)-A 61,1
of
2116
ho W mas , as Su cessor Trustee
33
u
efield
of the Charles G. Rebozc Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Date:
(0)q,
Charles Fred Rebozo, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Date:
N
Mary R. Batiterse, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Date:
°10
PURCHASER:
VILLAGE OF KEY BISCAYNE, a Florida
Attest: municipal corporation
Village Clerk
Approved as to legal form
and sufficiency:
By: . �---_
Village Attorney
By:
Name: C. Samuel I issinger
Title: Village Manager
Date: 1-41 al t 14717
ESCROW AGENT:
Weiss Serota Helfman Pastoriza &
Guedes, P.A.
By: .
Name: C Cct r vt,(. C o V j
Title: p,
• cD/ n
Date: 7 (2 (qcl
103032/Agreements/purchase and sale Agreement execution copy 6-28-99
34
EXHIBIT "A"
LEGAL DESCRIPTION OF PARCELS 1 AND 2
CONTAINING A TOTAL OF APPROXIMATELY 2.068 ACRES
PARCEL 1
A portion of Tract 4, "MATHESON ESTATES KEY BISCAYNE", according to the plat
thereof, as recorded in Plat Book 34 at Page 34, of the Public Records of Dade County, Florida,
being more particularly described as follows: Begin at the intersection of the South Line of said
Tract 4 of "MATHESON ESTATES KEY BISCAYNE", with the East Line of Fernwood Road,
as the same is known on the plat of "TROPICAL ISLE HOMES SUBDIVISION", as recorded
in Plat Book 50, at Page 64, of the Public Records of Miami -Dade County, Florida; thence
Northerly along the East Line of said Fernwood Road, being also a circular curve to the right
having a radius of 1666.37 feet and a central angle of 06 degrees 59 minutes 56 seconds for an
arc distance of 203.55 feet to a Point of Compound Curvature; thence Northeasterly and
Easterly along a circular curve to the right having a radius of 25.00 feet and a central angle of
83 degrees 00 minutes 04 seconds for an arc distance of 36.22 feet to a Point of Tangency, the
same being a point on the South Line of West McIntyre Street, as the same is shown on said plat
of "TROPICAL ISLE HOMES SUBDIVISION"; thence due East along the South Line of said
West McIntyre Street for a distance of 168.46 feet to a point; thence South for a distance of
225.00 feet, to a point on the South Line of said Tract 4 of said "MATHESON ESTATES KEY
BISCAYNE"; thence West along the South Line of said Tract 4 of "MATHESON ESTATES
KEY BISCAYNE" for 205.69 feet to the Point of Beginning Lying and being in Section 5,
Township 55 South, Range 42 East, Dade County, Florida.
Folio No. 24-4232-001-0061
PARCEL 2
A portion of Tract 4, "MATHESON ESTATES KEY BISCAYNE", according to the plat thereof,
as recorded in Plat Book 34 at Page 34, of the Public Records of Dade County, Florida, being
more particularly described as follows: Begin at the intersection of the South Line of said Tract 4
of "MATHESON ESTATES KEY BISCAYNE", with the West Line of Crandon Boulevard, as
same is shown on the Plat of "TROPICAL ISLE HOMES SUBDIVISION", as recorded in Plat
Book 50 at Page 64, of the Public Records of Miami -Dade County, Florida; thence Northerly
along the West Line of the aforesaid Crandon Boulevard and along a circular curve to the right
having a radius of 1266.37 feet and a central angle of 08 degrees 54 minutes 34 seconds for an arc
distance of 196.92 feet to a Point of Reverse Curvature; thence Northwesterly and Westerly along
a circular curve to the left having a radius of 25.00 feet and a central angle of 98 degrees 54
minutes 34 seconds for an arc distance of 43.16 feet to a Point of Tangency; thence due West
along the South Line of West McIntyre Street, as the same is shown on the aforesaid plat of
"TROPICAL ISLE HOMES SUBDIVISION", for a distance of 184.93 feet; thence South for
225.00 feet to a point on the South Line of said Tract 4 of "MATHESON ESTATES KEY
BISCAYNE"; thence due East along the South Line of said Tract 4 of "MATHESON ESTATES
KEY BISCAYNE" for a distance of 194.35 feet to the Point of Beginning, lying and being in
Section 5, Township 54 South, Range 42 East, Miami -Dade County, Florida.
Folio No. 24-4232-001-0060
EXHIBIT "B"
OPERATING AGREEMENTS
None
EXHIBIT "C"
PERSONAL PROPERTY
None
EXHIBIT "D"
FORM OF DEED
Return to:
Elaine M. Cohen, Esq.
Weiss Serota Helfman Pastoriza & Guedes, P.A.
2665 South Bayshore Drive, Suite 420
Miami, Florida 33133
This Instrument Prepared by:
Elaine M. Cohen, Esq.
Weiss Serota Helfman Pastoriza & Guedes, P.A.
2665 South Bayshore Drive, Suite 420
Miami, Florida 33133
Property Appraisers Parcel Identification (Folio) Number(s):
24-4232-001-0060 and 24-4232-001-0061
Grantee(s) S.S. #(s): 65-0236174
WARRANTY DEED
STATUTORY
F.S. 689.02
EXHIBIT "D"
(Wherever used herein the terms "first party" and "second party" shall include singular and plural, heirs, legal representatives,
and assigns of individuals, and the successors and assigns of corporations, wherever the context so admits or requires.)
THIS INDENTURE, Made this day of , 1999,
Between Thomas H. Wakefield, Charles Fred Rebozo and Mary R. Bouterse, as
Successor Trustees of the Charles G. Rebozo Revocable Trust under Revocable Trust Agreement
dated January 20, 1989, as modified and amended, of the County of Miami -Dade, in the State of
Florida, parties of the first part, and the Village of Key Biscayne, a Florida municipal
corporation, of the County of Miami -Dade, in the State of Florida, whose post office address is
85 West McIntyre Street, Key Biscayne, Florida 33149, party of the second part.
Witnesseth, That the said parties of the first part, for and in consideration of the sum of
Ten ($10.00) Dollars, to it in hand paid by the said party of the second part, the receipt whereof
is hereby acknowledged, have granted, bargained, and sold to the said party of the second part, it
successors and assigns forever, the following described land, situate, and being in the County of
Miami -Dade, State of Florida, to -wit:
See Exhibit "A" attached hereto and made a part hereof.
Subject to those matters set forth on Exhibit "B" attached hereto.
And the said parties of the first part do hereby fully warrant the title to said land, and will defend
the same against the lawful claims of all persons whomsoever.
IN WITNESS WHEREOF, The said parties of the first part have hereunto set their hand
and seal the day and year first above written.
Signed, sealed and delivered in the presence of:
Witness Signature
Printed Name
Witness Signature
Printed Name
Thomas H. Wakefield, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended,
and not Individually
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
STATE OF )
)SS:
COUNTY OF )
Charles Fred Rebozo, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended,
and not Individually
Mary R. Bouterse, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended,
and not Individually
The foregoing instrument was acknowledged before me this day of ,
1999 by Thomas H. Wakefield, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as
identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
2
STATE OF )
)SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1999 by Charles Fred Rebozo, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as
identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
STATE OF )
)SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1999 by Mary R. Bouterse, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as
identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
103032\agreements\exhibit D rev 3-26-99
3
EXHIBIT "A"
Legal Description of Parcels 1 and 2
EXHIBIT "B"
Permitted Exceptions
EXHIBIT "E"
FORM OF BILL OF SALE
EXHIBIT "E"
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Thomas H. Wakefield, Charles Fred
Rebozo and Mary R. Bouterse, as Successor Trustees of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended (collectively
"Seller"), for and in consideration of the sum of Ten and No/ 100 (S10.00) Dollars lawful money
of the United States, to it paid by the Village of Key Biscayne, a Florida municipal corporation
("Purchaser"), the receipt whereof is hereby acknowledged, has granted, bargained. sold.
transferred and delivered, and by these presents does grant, bargain, sell, transfer and deliver
unto the Purchaser, its successors and assigns, the following goods and chattels:
All of the tangible personal property of Seller used in connection
with or located in, on or at the real property legally described on
Exhibit "A" attached hereto (the "Real Property"), and all
replacements thereof, including, but not limited to, the property
listed on Exhibit "B" attached hereto, excepting therefrom any
articles of personal property belonging to tenants occupying the
improvements situated on the Real Property.
TO HAVE AND TO HOLD the same unto the Purchaser, its successors and assigns
forever.
AND Seller does, for itself and its heirs, executors and administrators, covenant to and
with the Purchaser, its successors and assigns, that Seller is the lawful owner of the said goods
and chattels; that they are free from all encumbrances; that Seller has good right to sell the same
aforesaid, and that Seller will warrant and defend the sale of said property, goods and chattels
hereby made, unto the Purchaser, its successors and assigns against the lawful claims and
demands of all persons whomsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the
1999.
Witness Signature
Printed Name
Witness Signature
Printed Name
Thomas H. Wakefield, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
V
January 20, 1989, as modified and amended
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
Charles Fred Rebozo, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Mary R. Bouterse, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
STATE OF )
)SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1999 by Thomas H. Wakefield, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as
identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
2
STATE OF )
)SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1999 by Charles Fred Rebozo, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended. who is
personally known to me or who has produced as
identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
STATE OF )
)SS:
COUNTY OF
The foregoing instrument was acknowledged before me this day of
1999 by Mary R. Bouterse, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as
identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
103032/agreements/exhibit e bill of sale
3
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
SCHEDULE OF PERSONAL PROPERTY
EXHIBIT "F"
FORM OF ASSIGNNLEN.I, OF
SURVTVING CONTRACTS
EXHIBIT "F"
ASSIGNMENT AND ASSUMPTION OF SURVIVING CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF SURVIVING CONTRACTS (this
"Agreement") is made as of the day of , 1999, by and between Thomas H.
Wakefield, Charles Fred Rebozo and Mary R. Bouterse, as Successor Trustees of the Charles G.
Rebozo Revocable Trust under Revocable Trust Agreement dated January 20, 1989, as modified
and amended (collectively "Assignor"), and the Village of Key Biscayne, a Florida municipal
corporation ("Assignee").
RECITALS:
A. Assignor and Assignee entered into that certain Purchase and Sale Agreement dated
(the "Purchase Agreement"), pursuant to which, among other things,
Assignor will sell and Assignee will purchase certain assets of Assignor as more particularly
described in the Purchase Agreement.
B. In addition to those certain assets which Assignor will sell and Assignee will
purchase pursuant to the Purchase Agreement, Assignor has agreed to assign to Assignee all of
Assignor's right, title and interest in and to certain of the Assignor's contracts and agreements
described on Exhibit "A" attached hereto and incorporated herein by this reference (collectively,
the "Surviving Contracts") and Assignee is willing to accept such assignment and assume
Assignor's obligations under the Surviving Contracts from and after the date of this Agreement.
NOW, THEREFORE, to accomplish such assignment, in consideration of the mutual
premises contained herein and in the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The above Recitals are true and correct and are incorporated herein by this reference.
2. Assignor hereby sells, assigns, conveys, sets over and transfers to Assignee all of its
right, title and interest in and to the Surviving Contracts.
3. Assignor hereby represents and warrants to Assignee that as of the date of this
Agreement (a) the Surviving Contracts are in full force and effect, (b) neither Seller, nor, to the
actual knowledge of Seller, any other party to any of the Surviving Contracts. are in default
thereunder, and no event or omission has occurred which, with the passage of time or the giving
of notice, or both, would constitute a default under the Surviving Contracts, (c) the copies of the
Surviving Contracts which have been delivered to Assignee are complete and correct copies of
such Surviving Contracts, and (d) Assignor has made all payments and has performed all
obligations of Assignor under the Surviving Contracts which have become due or payable by
Assignor thereunder on or before the date hereof.
4. Assignee hereby accepts the foregoing assignment and agrees to assume all of
Assignor's obligations under the Surviving Contracts which may occur or arise from and after the
date of this Agreement. •
V
5. Assignor and Assignee hereby agree and acknowledge that except for the obligations of
Assignor under or arising out of the Surviving Contracts from and after the date of this
Agreement, Assignee is not assuming any other contracts or agreements under which the Assignor
is a party and is not assuming any other liabilities or obligations of the Assignor.
6. This Agreement and the assignment set forth above shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns. The parties agree to
execute and deliver such further and additional instruments, agreements and other documents and
to take such further actions as may be necessary to evidence or carry out the provisions of this
Agreement. Assignor further agrees to use its best efforts in obtaining any consents which may
be necessary or appropriate to ensure the transfer and assignment of the Surviving Contracts.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to be duly
executed as of the day and year first above written.
WITNESSES: ASSIGNOR:
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
2
Thomas H. Wakefield, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Charles Fred Rebozo, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
103032\agreements\exhibit
3
Mary R. Bouterse, as Successor Trustee
[of the Charles G. Rebozo Revocable Trust]
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
ASSIGNEE:
VILLAGE OF KEY BISCAYNE, a Florida
municipal corporation
By:
C. Samuel Kissinger, Village Manager
EXHIBIT "A"
SURVIVING CONTRACTS CTS
EXHIBIT "G"
FORM OF SECTION 1445 CERTIFICATE
EXHIBIT "G"
CERTIFICATION OF NON -FOREIGN STATUS
ENTITY TRANSFEROR
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon the disposition of a U.S. real property interest by
Thomas H. Wakefield, Charles Fred Rebozo and Mary R. Bouterse, as Successor Trustees [of the
Charles G. Rebozo Revocable Trust] under Revocable Trust Agreement dated January 20, 1989.
as modified and amended ("Transferor"), the undersigned hereby certify the following on behalf
of the Transferor named below:
1. The Transferor is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
2. The Transferor's U.S. employer identification number is
3. The Transferor's address is:
Thomas H. Wakefield, Co -Trustee
Charles Fred Rebozo, Co -Trustee
Mary R Bouterse, Co -Trustee
c/o Olga Guilarte
524 Fernwood Road
Key Biscayne, Florida 33149
The Transferor understands that this certification may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalties of perjury we declare that we have examined this certification and to the
best of our knowledge and belief, it is true, correct, and complete, and we further declare that we
have authority to sign this document on behalf of the Transferor.
TRANSFEROR:
Thomas H. Wakefield, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Date: , 1999
Charles Fred Rebozo, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Date: , 1999
Mary R. Bouterse, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Date: , 1999
103032\exhibit G certification of Non -Foreign Status
EXHIBIT "H"
FORM OF GENERAL ASSIGNMENT
EXHIBIT "H"
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT ("Assignment") is made this day of
1999, by Thomas H. Wakefield, Charles Fred Rebozo and Mary R. Bouterse. as Successor
Trustees of the Charles G. Rebozo Revocable Trust under Revocable Trust Agreement dated
January 20, 1989, as modified and amended, whose address is c/o Olga Guilarte, 524 Fernwood
Road, Key Biscayne, Florida 33149 ("Assignor"), in favor of the Village of Key Biscayne, a
Florida municipal corporation, whose address is 85 West McIntyre Street, Key Biscayne. Florida
33149 ("Assignee").
RECITALS:
A. Assignor has this date conveyed to Assignee the real property described on Exhibit
"A" located in Miami -Dade County, Florida attached hereto (the "Real Property") and the
improvements located thereon (the "Improvements") (the Real Property and the Improvements
together the "Property").
B. In connection with the conveyance of the Property, Assignor and Assignee intend that,
to the extent assignable, all of Assignor's right, title, interest, powers and privileges in and under
all intangible personal property, guaranties, warranties, permits, licenses, approvals, certificates.
plans and specifications, books, records and other matters stated herein pertaining to the Property
be assigned and transferred to Assignee.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Assignor, to the extent assignable, hereby assigns, conveys, transfers and sets over to Assignee
the following:
1. All of Assignor's right, title, interest, powers, and privileges in, to and under all of the
intangible personal property used in connection with or relating to the ownership, use,
development, operation, management, occupancy or maintenance of the Property.
2. All of Assignor's right, title, interest, powers and privileges in and to all public and
private contract rights and development or usage rights of Assignor with respect to the Property.
3. All of Assignor's right, title, interest, powers and privileges in and to (i) the "as built"
plans and specifications used in the construction of the buildings and other Improvements located
on the Real Property (including driveways, walkways, landscaping and mechanical, electrical and
plumbing systems) and (ii) all books, records and documents relating to the ownership, use,
development, operation, management, occupancy or maintenance of the Property.
4. All of Assignor's right, title, interest, powers and privileges in, to and under all of
those existing guaranties, warranties and indemnities from any person, party or entity relating to
the Property.
5. All of Assignor's right, title, interest, powers and privileges, to the extent permitted by
law, in and under any notices of completion, environmental and utility permits and approvals.
licenses, permits, authorizations, consents, variances, waivers, use, occupancy and operating.
permits and licenses, and all other permits, approvals, and certificates obtained in connection with
the use, occupancy and operation of the Property, from any federal, state, county, municipal or
other governmental or quasi -governmental body, agency, department, board, commission, bureau
or other entity or instrumentality.
To the extent such interests and items are assignable, Assignor has good right. title and
authority to assign, convey, transfer and set over to Assignee the interests and items set forth
above.
IN WITNESS WHEREOF, Assignor has executed this General Assignment as of the date
set forth above.
Signed, sealed and delivered
in the presence of:
Witness Signature
Printed Narne
Witness Signature
Printed Name
Witness Signature
Printed Name
Witness Signature
Printed Name
Thomas H. Wakefield, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Charles Fred Rebozo, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
Witness Signature
Printed Name
Witness Signature
V
Printed Name
STATE OF )
)SS:
COUNTY OF )
Mary R. Bouterse, as Successor Trustee
of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated
January 20, 1989, as modified and amended
The foregoing instrument was acknowledged before me this day of
1999 by Thomas H. Wakefield, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as
identification.
(Signature of person taking acknowledgment)
(Name of acknowledges typed, printed or stamped)
(Title or rank)
(Serial number, if any)
STATE OF )
)SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
1999 by Charles Fred Rebozo, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
STATE OF )
)SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1999 by Mary R. Bouterse, as Successor Trustee of the Charles G. Rebozo Revocable Trust
under Revocable Trust Agreement dated January 20, 1989, as modified and amended, who is
personally known to me or who has produced as identification.
(Signature of person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)
103032\agreements\exhibit H general assignment
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "I-1"
COPY OF DRY CLEANER'S LEASE