12-04-07 Item 141
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RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
APPROVING THE LEASE - PURCHASE AGREEMENT WITH
THE TRUST FOR PUBLIC LAND TO PURCHASE THE
PROPERTY KNOWN AS THE DISON PROPERTY;
AUTHORIZING THE EXPENDITURE OF $750,000.00. TO BE
EXPENDED AS FOLLOWS: $200,000.00 CARRYOVER FROM
PRIOR YEAR CONTINGENCY ACCOUNT NO.
001.2100.519.9920, $350,000.00 FROM CURRENT YEAR
MATCHING GRANTS ACCOUNT NO. 001.2100.519.9925 AND
$200,000.00 FROM FRDAP $200K DISON PROPERTY
MATCHING GRANT ACCOUNT NO. 106.2063.572.6110;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Mayor and City Commission of the City of South Miami
and the residents of the City have always found that parks are a top priority; and,
WHEREAS, the Dison property provides the City the opportunity to
increase the City's park land and residential access to park land and programming;
and,
WHEREAS, the Dison property is one of the remaining forest hammocks in
the City; and,
WHEREAS, the Mayor and City Commission desire .to enter into the lease
purchase agreement with the Trust for Public Land to Purchase the Dison
Property.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
Section L. The City of South Miami hereby approves the lease - purchase
agreement with the Trust for Public Land to purchase the property at known as the
Dison Property, in the substantial form as attached hereto as exhibit 1, which
exhibit is incorporated by reference into this resolution. The legal description for
the Dison property is contained within exhibit 1.
Additions shown by underlining and deletions shown by evefstfikin .
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Section 2. The City hereby authorizes the expenditure of $750,000 for
the initial lease payment. To be expended as follows: $200,000 from Prior Year
Carry over Contingency Account with an available balance of $272,000.00;
$350,000 from Matching Grants Account # 001.2100.519.9925 with an available
balance of $350,000 and $200,000.00 from FRDAP $200K Dison Property Grant
Account # 106.2063.572.6110 with a balance of $200,000.00.
This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this day of December, 2007.
ATTEST: APPROVED:
CITY CLERK MAYOR
READ AND APPROVED AS TO FORM:
Luis R. Figueredo,
Nagin Gallop Figueredo, P.A.
Office of City Attorney
Page 2 of 2
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Wiscombe:
Commissioner Birts:
Commissioner Palmer:
Commissioner Beckman:
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EXHIBIT "I"
LEASE — PURCHASE AGREEMENT
City of South Miami /Dison Property
This Lease — Purchase Agreement (the "Agreement ") is entered into as of ,
2007 between The Trust For Public Land, a California charitable corporation qualified to transact
business in Florida, (hereinafter referred to as "Lessor" or "Seller "), and the City of South Miami,
Florida, (hereinafter referred to as the "Lessee," or "Buyer ").
WHEREAS, the Lessee has identified that certain property in Miami -Dade County, more
particularly described in Exhibit "A" attached hereto and by reference incorporated herein,
(hereafter, the "Property" or the "Leased Premises ") as property the Lessee desires to obtain for
public use such as public parks, open space, and conservation uses to meet the existing needs for
parks, open space and conservation in Miami -Dade County, Florida;
WHEREAS, Lessor intends to purchase the fee simple title to the Property for the purpose of
entering into this Lease — Purchase Agreement with the Lessee; and
WHEREAS, the Lessee and Lessor mutually desire to enter into this Lease — Purchase
Agreement for the Property,
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the Lessee and Lessor have entered into this Agreement on the terms and conditions as set
forth below.
PART I
1. LEASE TERM AND CANCELLATION RIGHT.
32 (a) Lessor hereby leases to Lessee the Property for Lessee's use as a public park, open
33 space and conservation purposes (the "Permitted Uses ") for a term of three (3) years commencing on
34 the day Lessor closes on the Property and takes title from the current owner (the "Commencement
35 Date "), and ending three years thereafter, (the "Lease Term ").
36
37 (b) Lessor and Lessee hereby agree that Lessee is granted the right to cancel this
38 Agreement beginning at the end of the second year of the Lease Term on the conditions set forth
39 below if, but only if, the Lessee makes a formal determination at a regularly scheduled meeting of the
40 City Commission of the City of South Miami that moneys from ad valorem taxes, fees, other taxes or
41 assessments, or from other revenue sources are insufficient to pay the rent or purchase payments
42 required hereunder and monies are not appropriated by Lessee for the continuation of the Lease and
43 the payment of the rents required by this Agreement.
1 2. BASE RENT AND CREDIT FOR RENT
2
3 (a) Lessee agrees to pay to Lessor annual Base Rent in the following amounts:
4
5 (i) YEAR 1, on the Commencement Date of the Lease: a payment of
6 $500,000.00, which shall be equivalent to 100 % of the "First Base Rent
7 Payment";
8
9 (ii) YEAR 2, on or before the first anniversary of the Commencement Date, a
10 payment of $100,000.00 plus accrued interest as defined in Paragraph 2(c)
I l below (the "Second Base Rent Payment ").
12
13 (iv) YEAR 3, on or before the second anniversary of the Commencement Date a
14 payment of $100,000.00 plus accrued interest as defined in Paragraph 2(c)
15 below (the "Third Base Rent Payment ").
16
17 (v) Three Years from the Commencement Date a payment of $50,000.00 plus
18 accrued interest as defined in Paragraph 2(c) below (the "Final Base Rent
19 Payment ").
20
21 (b) Base Rent is payable in cash at Lessor's office by cashiers check, wire transfer or
22 other good funds each year on the annual anniversary of the Commencement Date. Base Rent shall
23 be paid to Lessor by a single check issued by the City of South Miami, Florida for the total amount
24 due.
25
26 (c) Lessee agrees that it shall pay interest to Lessor on the unpaid balance of Base Rent
27 due under this Lease Purchase Agreement at the prime rate plus 1.5% as determined by Bank of
28 America or SunTrust Bank of Northwest Florida, whichever is used as Lessor's lender, beginning on
29 the Commencement Date and as subsequently adjusted on the day of adjustment, commencing on the
30 date Lessor purchases the fee simple title to the Property. Notwithstanding the foregoing, Lessor
31 shall not be required to accept any installment of Base Rent which is more than 30 days past due
32 following written notice of non - receipt of Base Rent payment.
33
34 (d) Lessor and Lessee agree that should Lessee fail to pay any Base Rent installment for
35 more than 30 days after becoming due and following written notice of non - receipt of Base Rent
36 payment, Lessor may declare the Lessee in default and terminate the Agreement and Lessee's
37 occupancy pursuant to Ch. 83.01 F.S., et. seq.
38
39 (e) Credit for Rent:
40
41 (i) All Base Rent payments by Lessee to Lessor under this Agreement shall be
42 credited against the Purchase Price set forth in Paragraph 32 below at the
43 closing of the purchase by Lessee. Interest associated with the Base Rent
44 Payment shall not be credited against the Purchase Price. In no event shall
2
I the payments of Base Rent exceed the Purchase Price plus interest stated
2 herein less other credits set forth herein.
3
4 (f) Lessor agrees that Lessee has the right to prepay the Base Rent, in whole or in part,
5 without charge or penalty.
6
7 3. RIGHTS OF THE PARTIES UPON CANCELLATION OR TERMINATION
8
9 (a) The parties agree that in that event that (i) Lessee elects to not close the purchase of
to the Property and pay the entire Purchase Price set forth in Paragraph 32, or (ii) Lessee cancels the
11 Agreement in accord with Paragraph I (b), or the Agreement is terminated due to Lessee's default,
12 Lessee shall have no rights in the Property whatsoever, and Lessor is free to retain or sell and convey
13 the Property as it elects.
14
15 (b) Lessee hereby agrees that if it elects to cancel this Agreement prior to the first (1St)
16 anniversary of the Commencement Date, or prior to exercising the option granted herein, it shall pay
17 to Lessor six months Base Rent based on a Base Rent of $ 100,000.00 for the second year of the
18 Lease, and may occupy the Property for six months to continue and wind up its uses. If Lessee elects
19 at the end of the second year of the Lease Term to terminate the Lease as permitted without
20 exercising its option to purchase, Lessee may, at its option:
21
22 (i) Pay 50% of Base Rent of Year Two of the Term and vacate the Leased
23 Premises within six (6) months; or
24
25 (ii) Vacate the Leased Premises at the close of Year Two of the Lease Term.
26
27
28 4. ADDITIONAL RENT:
29
30 (a) In addition to Base Rent, Lessee shall pay to Lessor on demand all ad valorem
31 property taxes, sales taxes, intangible taxes and all other taxes payable on the leasehold and upon the
32 Property, and all interest which may accrue due to Lessee's late payment of Base Rent to Lessor as
33 Additional Rent ( "Additional Rent ").
34
35 (b) The term Additional Rent shall include all payments other than Base Rent due to
36 Lessor under this Agreement.
37
38 Hereinafter, Base Rent and Additional Rent are sometimes collectively referred to as "Rents ".
39
40 5. QUIET ENJOYMENT: Upon payment by Lessee of the Rents herein provided, and upon the
41 observance and performance of all terms, provisions, covenants and conditions on Lessee's part to be
42 observed and performed (subject to any applicable grace period), Lessee shall, subject to all of the
43 terms, provisions, covenants and conditions of this Lease, peaceably and quietly hold and enjoy the
44 Leased Premises for the Lease Term hereby demised.
45
3
1 6. INSURANCE:
3 (a) The Parties acknowledge that on the effective date hereof there are no improvements
4 on the Leased Premises. Any improvements contemplated by Lessee shall be made only with the
5 prior written approval of Lessor. The Lessee will include the Property and any improvements under
6 its policy with the Florida League of Cities. Lessee represents that the League of Cities insurance
7 policy includes, general liability, casualty and premises coverage. Lessee shall provide TPL with a
8 copy of its insurance policy coverages and limits in the event Lessee constructs any improvements on
9 the Leased Premises, Lessee shall insure at Lessee's expense all buildings, equipment and other
10 improvements on or relocated to the Property ( "Improvements ").
11
12 (b) Lessee shall, to the extent allowed by law, indemnify, defend, and hold harmless
13 Lessor against any loss, expense, cost, or damages as a result of any pollution or hazardous substance
14 event, escape, or deposit, including losses incurred as a result of the escape of pollutants or
15 hazardous substances from the Property onto the property of others. Such indemnification shall
16 survive the Term of this Agreement.
17
18 7. GOVERNMENTAL REQUIREMENTS:
19
20 (a) Lessee shall faithfully observe in the use of the Property all municipal and county
21 ordinances and codes and state and federal statutes now in force or which may hereafter be in force.
22
23 (b) Lessee acknowledges that it has made all inspections of the Property as it deems
24 necessary, and accepts the Property in "as is" condition. In the event that Lessee shall construct or
25 relocate any Improvements on the Property, Lessee, at its expense, shall construct or relocate such
26 Improvements and make all changes and additions to such Improvements as may be required to
27 comply with all applicable laws, rules, and insurance regulations as modified or amended from time
28 to time during the Lease Term. In the event Lessee defaults and fails to make such changes and
29 additions to the Improvements so as to comply with applicable laws, rules, and insurance regulations,
30 Lessor, at its option may, but shall not be required to, make the required changes and additions. All
31 costs incurred by Lessor to provide such changes or additions are hereby deemed Additional Rent,
32 and are due and payable by Lessee on demand.
33
34 (i) Lessor will provide to Lessee at least 14 days prior to Lessee's Base Rent
35 payment on the Commencement Date a Boundary Survey of the Property and
36 which will be certified to Lessee and a copy of Lessor's Title Insurance
37 Commitment (the "Commitment "). Lessee hereby agrees to take possession
38 of the Property on the Commencement Date subject to all matters shown on
39 the survey, other than billboards or billboard leases, including survey defects,
40 encroachments, easements visible on the ground which may be revealed by
41 the survey, and all matters which would be visible upon a physical inspection
42 of the premises, and those matters specified in Schedule B -2 of the
43 Commitment. Billboards depicted on the survey, if any, shall be removed
44 within ninety (90) days of the Commencement Date of the Lease.
45
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8. SERVICES:
2
3 (a) Lessor shall provide no services to Lessee or to the Property during the Lease Term of
4 this Agreement. Lessee agrees that it shall provide all necessary services to the Property, which
5 Lessee's uses shall require, including electricity, potable water, sewage treatment and disposal,
6 garbage removal, and security services as needed, at Lessee's sole expense, and Lessee agrees to
7 provide all such services continuously during the Lease Term.
9 (b) In the event Lessee defaults in the provision of the above described services, Lessor,
10 at its option, may, but is not required to provide any such services. All costs incurred by Lessor to
11 provide such services are hereby deemed Additional Rent and are due and payable by Lessee upon
12 demand.
13
14 9. REPAIR OF LEASED PREMISES /ALTERATION TO IMPROVEMENTS:
15
16 (a) Lessee shall, at Lessee's sole expense, maintain the Property and all Improvements on
17 the Leased Premises in good repair and working condition during the Lease Term. During the Lease
18 Term, Lessor shall have no obligation to maintain, repair or replace any components of any
19 Improvements on the Property, but shall retain the right at its sole option, to make any such repairs or
20 additions.
21
22 (b) Lessee will make no material alterations or additions in or to the Leased Premises
23 without the prior written consent of the Lessor, which consent shall not be unreasonably withheld,
24 delayed, or denied, and shall, among other considerations, be predicated upon Lessee's use of
25 contractors who are acceptable to Lessor and who provide a full payment, completion and
26 performance bond naming Lessor as an insured or beneficiary party. Lessee shall provide to Lessor
27 notice of such alterations and copies of as built plans on completion. All additions, fixtures, or new
28 building, except only furniture, fixtures, or relocated improvements which shall be readily removable
29 without injury to the Leased Premises, shall be and remain a part of the Leased Premises at the
30 expiration or termination of this Agreement. Lessee's obligation hereunder constitutes a recognition
31 of the necessity to maintain a uniformity of materials and systems throughout the Property and to
32 insure that the Property remains marketable for residential or park uses. Lessee may utilize its own
33 employees for alterations and repairs.
34
35 (c) In the event that the Lessees fails and defaults in its obligations under this Paragraph
36 9, Lessor may, but shall have no obligation to make any repairs, replacements or alterations to the
37 Property or Improvements which Lessor deems necessary to maintain the Property and
38 Improvements in tenantable and marketable condition, and all costs incurred by Lessor in making
39 such repairs, replacements or alterations shall be deemed Additional Rent which Lessee shall pay to
40 Lessor upon demand.
41
42 10. INDEMNIFICATION:
43
44 (a) Lessee further agrees that Lessee will pay all claims of contractors, subcontractors,
45 mechanics, laborers, material men, and other items of like character related to work on the Property
I authorized by Lessee. Lessee shall ensure that all contractors providing services, materials or labor
2 shall post sufficient payment and performance bonds in accord with Chapter 255.05, Florida Statutes,
3 and shall request that Lessor be named as a beneficiary thereof, as its interest may appear. Lessee
4 shall not waive the requirement for contractors' bonds on any construction or repairs on the Leased
5 Premises, or any Improvements thereon.
6
7 (b) The Lessee herein shall not have any authority to create any liens for labor or material
8 on the Lessor's interest in the Leased Premises and all persons contracting with the Lessee for the
9 destruction or removal of any facilities or other improvements or for the erection, installation,
10 alteration, or repair of any facilities or other improvements on or about the Leased Premises, and all
1 l material- suppliers, contractors, mechanics, and laborers are hereby charged with notice (which notice
12 Lessee shall deliver in writing to each such party prior to the commencement of any service by said
13 party) that they must look only to the Lessee and to the Lessee's interests in the Leased Premises to
14 secure the payment of any bill for work done or material furnished at the request or instruction of
15 Lessee. The provisions of this paragraph may be set forth in any Memorandum of this Lease which
16 is recorded with Lessor's consent pursuant to Paragraph 30 hereof.
17
18 11. ESTOPPEL STATEMENT: Lessee agrees that from time to time, upon not less than ten (10)
19 days prior request by Lessor, Lessee will deliver to Lessor a statement in writing certifying (a) that
20 this Agreement is unmodified and in full force and effect (or, if there have been modifications, that
21 the Agreement as modified is in full force ,and effect and stating the modifications); (b) the dates to
22 which the rent and other charges have been paid; (c) to the best of Lessee's knowledge, that Lessor is
23 not in default under any provisions of this Agreement, or, if in default, the nature thereof in detail;
24 (d) whether or not Lessee is in occupancy of the Leased Premises, and (e) such other information
25 pertaining to this Agreement and Lessee as Lessor may reasonably request. Failure by Lessee to so
26 reply within said ten (10) days shall be deemed confirmation by the Lessee that all parties are in good
27 standing under this Agreement.
28
29 12. ATTORNMENT: If the interests of Lessor under this Agreement shall be transferred
30 voluntarily or by reason of foreclosure or other proceedings for enforcement of any mortgage on the
31 Leased Premises, Lessee shall, at the election of such transferee, be bound to such transferee (herein
32 sometimes called the "Purchaser ") for the balance of the term hereof remaining, and any extensions
33 or renewals thereof which may be effected in accordance with the terms and provisions hereof, with
34 the same force and effect as if the Purchaser were the Lessor under this Agreement, and Lessee does
35 hereby agree upon written request to attorn to the Purchaser, including the mortgagee under any such
36 mortgage if it be the Purchaser, as its Lessor, said attornment to be effective and self - operative
37 without the execution of any further instruments, upon the Purchaser succeeding to the interest of the
38 Lessor under this Agreement. Notwithstanding the foregoing, however, Lessee hereby agrees to
39 execute any instrument(s) which Lessor may,deem desirable to evidence said attornment by Lessee.
40 The respective rights and obligations of Lessee and the Purchaser upon such attornment, to the extent
41 of the then remaining balance of the Lease Term and any such extension and renewals, shall be and
42 are the same as those set forth herein. In the event of such transfer of Lessor's interest, Lessor shall
43 be released and relieved from all liability and responsibility to Lessee under this Lease or otherwise
44 from and after said transfer, but no liabilities and responsibilities accrued prior thereto, and Lessor's
45 successor by acceptance of rent from Lessee hereunder shall become liable and responsible to Lessee
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I in respect to all obligations of the Lessor under this Agreement accruing from and after the date of
2 such transfer.
4 13. ASSIGNMENT OR SUBLETTING:
5
6 (a) Except as set forth herein, without the written consent of Lessor first obtained in each
7 case, Lessee shall not assign, transfer, mortgage, pledge, or otherwise encumber or dispose of this
8 Agreement or the Leased Premises or any part thereof, or permit the Leased Premises to be occupied
9 by other persons other than for park purposes. Lessee agrees that this Agreement and the option to
10 purchase contained herein may not be assigned to any entity or person other than any agency or
11 government or any entity holding tax exemption pursuant to Section 501(c)(3) of the Internal
12 Revenue Code. Lessor shall not have any obligation to consent to any assignment except as provided
13 in this Paragraph 13. The Lessor may, after default by the Lessee, collect or accept Rent from the
14 assignee, or occupant and apply the net amount collected or accepted to the Rent herein reserved, but
15 no such collection or acceptance shall be deemed a waiver of this covenant or the acceptance of the
16 assignee, or occupant as Lessee, nor shall it be construed as, or implied to be, a release of the Lessee
17 from the further observance and performance by the Lessee of the terms, provisions, covenants and
18 conditions herein contained, nor as an imposition upon Lessor of any of the obligations required of
19 Lessee as assignor under said sublease. Lessee shall not be permitted to sublet the Property.
20
21 (b) Any assignment, subletting, hypothecation, pledging or other disposition of Lessee's
22 interest hereunder, in violation of the terms hereof, shall be deemed null and void, and shall
23 constitute an act of default hereunder.
24
25 14. SUCCESSORS AND ASSIGNS: All terms, provisions, covenants and conditions to be
26 observed and performed by Lessee shall be applicable to and binding upon Lessee's respective
27 administrators, successors and assigns, subject, however, to the restrictions as to assignment or
28 subletting by Lessee as provided herein. All express covenants of this Agreement shall be deemed to
29 be covenants running with the land.
30
31 15. HOLD HARMLESS OF LESSOR:
32
33 (a) In consideration of the Leased Premises being leased to Lessee for the above Rents
34 and the grant of an option to purchase, Lessee agrees, to the extent allowed by law: that Lessee, at
35 all times, will indemnify and hold harmless Lessor from all losses, damages, liabilities and expenses,
36 which may arise or be claimed against Lessor and be in favor of Lessee, any persons, firms,
37 corporations, governmental entities or any other entities, for any injuries or damages to the person or
38 property of Lessee or any persons, firms, corporations or any other entities, consequent upon or
39 arising from the use or occupancy of said Leased Premises by Lessee or consequent upon or arising
40 from any acts, omissions, neglect or fault of Lessee, its agents, servants, employees, licensees,
41 visitors, customers, patrons or invitees or consequent upon or arising from Lessee's failure to comply
42 with any laws, statutes, ordinances, codes or regulations as herein provided; that Lessor shall not be
43 liable to Lessee for any damages, losses or injuries to the persons or property of Lessee, its invitees,
44 licensees or patrons, which may be caused by the acts, neglect, omissions or faults of any persons,
45 firms, corporations, or other entities, except when such injury, loss or damage results solely from the
7
gross negligence or willful misconduct of Lessor, its agents or employees. All personal property on,
placed or moved into or on the Leased Premises shall be at the risk of Lessee or the owner thereof,
3 and the Lessor shall not be liable to Lessee for any damage to said personal property.
5 (b) In case Lessor shall be made a party to any litigation commenced against, by or
6 through Lessee, then to the extent allowed by law Lessee shall protect and hold Lessor harmless and
7 defend Lessor in connection with such litigation and any appeal thereof.
9 (c) To the extent allowed by law the indemnity to and hold harmless of Lessor set forth
to above shall extend to and include any loss incurred by Lessor as a result of the deposition, escape or
11 discovery of any pollutant or hazardous substance without regard to the time at which the deposition,
12 discovery or escape may occur, or whether such conditions existed prior to the effective date of this
13 Agreement. The terms of this indemnity shall survive the closing of any sale of the Property and the
14 expiration of this Agreement.
15
16 (d) Nothing in this section should constitute a waiver by Lessee of the defense of
17 sovereign immunity.
18
19 16. ATTORNEYS' FEES AND ARBITRATION:
20
21 The Parties agree that this Agreement shall be governed in all respects by the law of the State
22 of Florida, without resort to its conflict of laws principles.
23
24 In the event that any dispute whatsoever arises with respect to this Agreement, the same shall
25 be submitted to private and confidential binding arbitration in Miami -Dade, Florida. The parties may
26 elect to arbitrate without invoking the jurisdiction of the American Arbitration Association ( "AAA ").
27 However, if the parties cannot agree within ten (10) days of an arbitration demand, to arbitrate
28 without involving the AAA, the AAA jurisdiction automatically shall be invoked. Regardless of the
29 forum, the Commercial Arbitration Rules then published by the AAA shall apply, with the following
30 exceptions:
31
32 (a.) For a dispute in which the amount in controversy is in excess of $100,000 there shall
33 be three arbitrators. Each party shall choose one arbitrator who neither is a competitor of nor has any
34 current or past affiliation with either party. The two so selected arbitrators shall select a third
35 arbitrator, who shall chair the panel. For a dispute in which the amount in controversy is not in
36 excess of $99,999, there shall be one arbitrator.
37
38 (b.) Each parry shall file and serve its detailed demand (or counter demand) setting forth
39 each claim for relief and/or a response setting forth each affirmative defense to the other party's
40 demand. Each party shall: (1) disclose at the time it initially files, the identity, position, and address
41 of each person most knowledgeable about the facts at issue; (2) designate each document or other
42 exhibit relevant to the facts at issue and provide a copy to the other party; and (3) state the law that
43 applies to the facts at issue. Each party may issue up to 25 interrogatories to be answered completely
44 by the other party, and may demand that all other relevant documents be produced within 30 days.
45 Each party may conduct up to four depositions (each to be taken in the location where the person or
I party to be deposed has its/his /her office). All discovery shall conclude within six months from the
2 date the arbitrator(s) permit(s) discovery to commence.
3
4 (c.) The cost of the arbitration shall be assessed in accordance with the AAA Commercial
5 Arbitration Rules. The arbitration award shall be supported by written findings of fact and
6 conclusions of law. The prevailing party shall be entitled to recover all reasonable fees and expenses
7 incurred including fees and all expenses in enforcing the arbitral award by courts of competent
8 jurisdiction.
9
10 (d.) The power conferred by this arbitration provision is without prejudice to the right of
11 either party under applicable law to request interim relief directly from any court of competent
12 jurisdiction, without prior authorization from the arbitrator(s).
13
14
15 17. EMINENT DOMAIN: If during the term of this Agreement any material part of the Leased
16 Premises is taken by condemnation or eminent domain, which taking materially interferes with the
17 maintenance, operation or use of the Leased Premises as a public park or for residential or other
18 purposes, Lessor may elect to terminate this Agreement or to continue same in effect provided, that if
19 said taking materially interferes with Lessee's use and enjoyment of the Leased Premises, Lessee
20 may elect to terminate the Agreement. If neither Lessor nor Lessee elects to terminate the
21 Agreement, and if said taking reduces the area of the Leased Premises as a public park the Base Rent
22 shall be reduced in proportion to the area of the Leased Premises so taken. If any part of the Leased
23 Premises is taken by condemnation or eminent domain which renders the Leased Premises unsuitable
24 for its intended use for a public park or for residential purposes, or other purposes, the Lessee may
25 elect to terminate this Agreement. If any part of the Leased Premises is taken which does not render
26 the Leased Premises unsuitable for its intended use, and the Lessor does not otherwise elect to
27 terminate this Agreement, this Agreement shall continue in effect and the Base Rent shall be reduced
28 by an amount no less than that paid to Lessor for the area of the Leased Premises so taken and Lessor
29 shall repair any damage to the remaining Leased Premises resulting from such taking as soon as is
30 practicable. If all of the Leased Premises are taken by condemnation or eminent domain, this
31 Agreement shall terminate on the date of taking. If this Agreement should be terminated under any
32 provision of this paragraph, Rents shall be payable up to the date that possession is taken by the
33 taking authority, and Lessor will refund to Lessee any prepaid unaccrued Rents, if any, pertaining to
34 any subsequent period, less any sum or amount then owing by Lessee to Lessor. In addition, the
35 option payment may be refunded in the same amount as if the Lessee terminated the Agreement as
36 provided in Paragraph 34.
37
38 18. INSOLVENCY AND DEFAULT: All rights and remedies of Lessor herein enumerated shall
39 be cumulative, and none shall exclude another or any other right or remedy provided by law.
40
41 (a) If, after the applicable grace period, the Lessee defaults in the payment of Rent or any
42 other payment due hereunder, or in the prompt and full performance of any other provisions of this
43 Agreement, which default remains uncured for a period of ten (10) days after written notice to Lessee
44 from Lessor of the same (provided that if said non - performance cannot be cured within said ten (10)
45 day period, Lessee shall have a reasonable period of time to cure said default as long as Lessee
0
I diligently and continuously pursues said cure), or if the leasehold interest of the Lessee or fixtures of
2 Lessee are levied upon under execution or attached by process of law, and said levy or attachment is
3 not removed within thirty (30) days, or if Lessee makes an assignment for the benefit of creditors, or
4 if a receiver is appointed for any property of the Lessee, or if the Lessee abandons the Leased
5 Premises, then and in any such event, the Lessor may, if the Lessor so elects, but not otherwise, and
6 after ten (10) days' written notice thereof to Lessee forthwith terminate this Agreement and /or the
7 Lessee's right to possession hereunder.
9 (b) If the Lessee abandons the Leased Premises or otherwise entitles the Lessor so to
10 elect, and the Lessor does elect to terminate the Lessee's right to possession only, without
11 terminating the Agreement, the Lessor may, at the Lessor's option, enter into the Leased Premises,
12 remove the Lessee's signs and other evidence of tenancy, and take and hold possession thereof
13 without such entry and possession terminating the Agreement or releasing the Lessee in whole or in
14 part from the Lessee's obligation to pay the Rents hereunder for the full Lease Term, and in any such
15 case the Lessee shall pay forthwith to the Lessor, a sum equal to the amount of the Base Rent
16 reserved under this Agreement for the residue of the stated Lease Term. Upon and after entry into
17 possession of the Leased Premises without termination of the Agreement, the Lessor may, but need
18 not, relet the Leased Premises or any part thereof with or without any Personal Property that may be
19 therein, as the agent of the Lessee, to any person, firm or corporation other than the Lessee for such
20 Rent, for such time and upon such terms as the Lessor in the Lessor's sole discretion shall determine;
21 and the Lessor shall not be required to accept any lessee offered by the Lessee or to observe any
22 instructions given by the Lessee about such reletting. In any case, the Lessor may make repairs,
23 alterations and additions in or to the Leased Premises to the extent deemed by the Lessor necessary
24 or desirable, and the Lessee shall, upon demand, pay the cost thereof, together with the Lessor's
25 reasonable expenses of the reletting. If the consideration collected by the Lessor upon any such
26 reletting for the Lessee's account is not sufficient to pay monthly, the full amount of the Rent
27 reserved in the Agreement, together with the costs of repairs, alterations, additions and the Lessor's
28 expenses, the Lessee shall pay to the Lessor the amount of each monthly deficiency upon demand;
29 and if the consideration so collected from any such reletting is more than sufficient to pay the full
30 amount of the Rents reserved herein, together with the costs and expenses of the Lessor, the Lessor,
31 at the end of the stated Lease Term of the Agreement, shall account for the surplus to the Lessee.
32 Lessor shall use reasonable efforts to mitigate damages occasioned by Lessee's default provided that
33 to the extent substitute Lessees are available to relet the Leased Premises, Lessor shall not be
34 required to accept the same unless said prospective substitute lessee is a governmental agency or a
35 corporation holding tax exempt status pursuant to Section 501(c)(3) of the I.R.C.
36
37 19. NON - WAIVER OF DEFAULT: Failure of Lessor to declare any default immediately upon
38 occurrence thereof, or delay in taking any action in connection therewith, shall not waive such
39 default, but Lessor shall have the right to declare any such default at any time and take such action as
40 might be lawful or authorized hereunder, in law and /or in equity. No waiver by Lessor of a default
41 by Lessee shall be implied, and no express waiver by Lessor shall affect any default other than the
42 default specified in such waiver and that only for the time and extension therein stated.
43
44 No waiver of any term, provision, condition or covenant of this Agreement by Lessor shall be
45 deemed to imply or constitute a further waiver by Lessor of any other term, provision, condition or
10
I covenant of this Agreement. In addition to any rights and remedies specifically granted Lessor
2 herein, Lessor shall be entitled to all rights and remedies available at law and in equity in the event
3 that Lessee shall fail to perform any of the terms, provisions, covenants or conditions of this
4 Agreement on Lessee's part to be performed or fails to pay Base Rent, Additional Rent or any other
5 sums due Lessor hereunder when due. All rights and remedies specifically granted to Lessor herein,
6 by law and in equity shall be cumulative and not mutually exclusive.
7
8 20. RIGHT OF ENTRY: Except when the Lessor perceives an emergency in which event the
9 Lessor may enter the Leased Premises at its reasonable discretion, Lessor, or any of its agents, shall
10 have the right, upon the giving of one (1) day's notice, to enter the Leased Premises during all
11 reasonable hours to examine the same or to make such repairs, additions or alterations as may be
12 deemed necessary for the safety, comfort, or preservation thereof, or of the improvements, or to
13 exhibit said Leased Premises at any time within one hundred eighty (180) days before the expiration
14 of the Leased Term. Said right of entry shall likewise exist for the purpose of removing placards,
15 signs, fixtures, alterations, or additions which do not conform to this Lease.
16
17 21. MAINTENANCE OF PROPERTY VALUE: Lessee acknowledges that it is the governing
18 body of the City of South Miami and has the legal authority to regulate land use, zoning, and
19 planning in the City of South Miami. Lessee acknowledges that Lessor is acquiring the Leased
20 Premises solely for the purpose of conveying the Leased Premises to Lessee under this Agreement;
21 that Lessee has requested and induced Lessor to acquire the Leased Premises and to enter into this
22 Agreement. Lessee represents that at the date of execution of this Agreement, Lessee does not intend
23 or contemplate any rezoning or reclassification of land use of the Leased Premises, or to initiate any
24 study or review of the existing zoning and land use classification; and that Lessor is acting in reliance
25 upon the above representations of Lessee; and that Lessor will be financially damaged by any
26 rezoning or land use reclassification which would reduce the fair market value of the Leased
27 Premises. Lessor does not grant Lessee the permission to initiate or allow any efforts to change the
28 current zoning of the Property. Nothing in this paragraph 21 shall be construed as contract zoning by
29 the Lessee. On the date of the execution of this Agreement, Lessee shall obtain any temporary
30 zoning or land use changes or exceptions which may be required to permit Lessee's intended uses of
31 the Leased Premises during the Lease Term. Lessee shall not seek or make any such zoning or land
32 use changes to accommodate the Lessee's uses during the Lease Term without the prior written
33 consent of Lessor. The parties agree that Lessor may withhold such consent if Lessor determines that
34 any such change extends beyond the end of the Lease Term or adversely affects the market value of
35 the Leased Premises.
36
37 22. CONDITION OF PREMISES ON TERMINATION OF LEASE:
38
39 (a) In the event Lessee does not elect to purchase the Property, Lessee agrees to surrender
40 to Lessor, at the end of the term of this Agreement or as provided in Paragraph 3(b) and /or upon any
41 cancellation of this Agreement, said Leased Premises in as good condition as said Leased Premises
42 were at the Commencement Date, ordinary wear and tear not caused by Lessee's negligence, an
43 insured casualty, an uninsured casualty not caused by Lessee and alterations approved by Lessor,
44 excepted. Lessee agrees that if Lessee does not surrender said Leased Premises to Lessor at the end
45 of the Lease Term of this Agreement or as provided in Paragraph 3 (b) then Lessee will pay to Lessor,
11
I to the extent permitted by law, double the amount of the Base Rent paid by Lessee for the last month
2 of the Lease Term for each month or portion thereof that Lessee holds over plus all damages that
3 Lessor may suffer on account of Lessee's failure to so surrender to Lessor possession of said Leased
4 Premises, and will indemnify and save Lessor harmless from and against all claims made by any
5 succeeding Lessee of said Leased Premises against Lessor on account of delay of Lessor in delivering
6 possession of said Leased Premises to said succeeding Lessee so far as such delay is occasioned by
7 failure of Lessee to so surrender said Leased Premises in accordance herewith or otherwise.
9 (b) No receipt of money by Lessor from Lessee after termination of this Agreement or the
10 service of any notice of commencement of any suit, arbitration, or final judgment for possession shall
11 reinstate, continue or extend the term of this Agreement or affect any such notice, demand, suite or
12 judgment for possession, or otherwise limit or affect any other remedies available to Lessor
13 hereunder unless the same shall be a compulsory counterclaim.
14
15 (c) No act or thing done by Lessor or its agents during the Term of this Agreement shall
16 be deemed an acceptance of a surrender of the Leased Premises, and no agreement to accept a
17 surrender of the Leased Premises shall be valid unless it be made in writing by a duly authorized
18 officer or agent of Lessor.
19
20 (d) In the event that this Lease - Purchase Agreement is terminated or expires as permitted
21 herein and Lessee does not close its purchase of the Property for any reason other than Lessor's
22 material default hereunder, and it is determined by a licensed professional engineer or geologist, that
23 during the period of Lessee's occupancy of the Property pollutants or hazardous materials have been
24 discharged or released on the Property in concentrations or amounts which exceed applicable legal
25 standards as set by Department of Environmental Resources Management (DERM) or the Florida
26 Department of Environmental Protection (FDEP) , Lessee shall be required to remediate the Property
27 in accordance with the standards established by FDEP, DERM or other regulatory agency exercising
28 jurisdiction over the cleanup. In the event that the existing contamination precludes Lessor's
29 reasonable use of the Property then the Lessee shall continue to be bound to pay Base Rent to Lessor
30 until the pollutants or hazardous materials have been remediated to the extent that Lessor may make
31 reasonable use of the Property. In no event will the Base Rent paid by Lessee exceed the total Base
32 Rent in Paragraph 2 of this Agreement. Nothing herein shall be construed to release Lessee from the
33 obligation to remediate the Property to the standards set by FDEP, DERM or other regulatory agency
34 exercising jurisdiction over the clean -up.
35
36 23. SIGNS: Seller reserves the right to place permanent informational plaques or signs on the
37 property purchased under this Agreement acknowledging the commitment of the former owner, Ms.
38 Charlotte Dison, to the preservation of this property, and including a statement indicating that the
39 site was acquired with the assistance of The Trust for Public Land. The plaques or signs shall
40 contain The Trust for Public Land's logo, incorporated in a size and position comparable to that of
41 other logos on the sign. The logo must adhere to TPL's graphic standards guidelines, which will be
42 provided to the Buyer along with electronic files of TPL's logo. TPL staff will have an opportunity
43 to review and approve the sign design prior to production. All signs must comply with the
44 applicable City of South Miami ordinances.
45
12
1 24. INVALIDITY OF PROVISION: If any term, provision, covenant or condition of this
2 Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or
3 unenforceable, the remainder of this Agreement or the application of such tem, provision, covenant
4 or condition to persons or circumstances other than those as to which it is held invalid or
5 unenforceable shall not be affected thereby and each term, provision, covenant or condition of this
6 Lease shall be valid and be enforceable to the fullest extent permitted by law. This Agreement shall
7 be construed in accordance with the laws of the State of Florida.
9 25. TIME OF ESSENCE: It is understood and agreed between the parties hereto that time is of
10 the essence of all the terms, provision, covenants and conditions of this Agreement.
11
12 26. MISCELLANEOUS: The terms Lessor and Lessee, Seller and Buyer, as herein contained
13 shall include singular and/or plural, masculine, feminine and/or neuter, successors, administrators
14 and/or assigns wherever the context so requires or admits. The terms, provision, covenants and
15 conditions of this Agreement are expressed in the total language of this Agreement and the paragraph
16 headings are solely for the convenience of the reader and are not intended to e all inclusive and shall
17 not be deemed to limit or expand any of the provisions of this Agreement. Any formally executed
18 addendum or rider to or modification of this Agreement shall be expressly deemed incorporated by
19 reference herein unless a contrary intention is clearly stated therein. Anything herein to the contrary
20 notwithstanding, Lessor shall not be or be deemed to be in default hereunder unless it has failed to
21 cure its default within a reasonable time following its receipt of notice thereof. Notwithstanding any
22 other provision contained herein to the contrary, Lessor's liability hereunder or any other documents
23 executed in connection herewith, in the event of any uncured default by Lessor, shall be limited to
24 Lessor's interest in the Leased Premises, it being understood that none of Lessor's other assets shall
25 be subject to any judgment against Lessor hereunder.
26
27 27. EFFECTIVE DATE: Submission of this instrument for examination does not constitute an
28 offer, right of first refusal, reservation of or option for the Leased Premises. This instrument
29 becomes effective as an agreement upon execution and delivery by both Lessor and Lessee, and the
30 payment by Lessee of all sums payable at execution of this Agreement.
31
32 28. ENTIRE AGREEMENT: This Agreement contains the entire agreement between the parties
33 hereto and supersedes all previous negotiations leading thereto, and it may be modified only by an
34 agreement in writing signed and sealed by Lessor and Lessee. No surrender of the Leased Premises,
35 or of the remainder of the Lease Term, shall be valid unless accepted in writing by a duly authorized
36 officer or agent of Lessor. Lessee acknowledges and agrees that Lessee has not relied upon any
37 statement, representation, prior written or prior to contemporaneous oral promises, agreements or
38 warranties except such as are expressed herein.
39
40 29. MEMORANDUM OF LEASE: At Lessor's request at any time during the Lease Term of
41 this Agreement, Lessee agrees to immediately join in a Memorandum of Lease in form and content
42 satisfactory to Lessor, which Memorandum shall be recorded in the Public Records of Miami -Dade
43 County, Florida.
44
13
1 30. BROKERAGE: Lessor and Lessee represent and warrant that neither party has dealt with
2 any real estate broker in connection with this Agreements
3
4 31. FORCE MAJEURE: Lessor and Lessee shall not be required to perform any term, condition,
5 or covenant in this Agreement so long as such performance is delayed or prevented by force majeure,
6 which shall mean acts of God, labor disputes (whether lawful or not), material or labor shortages,
7 restrictions by any governmental authority, civil riots, floods, and any other cause not reasonably
8 within the control of Lessor (or Lessee, as the case may be) and which by the exercise of due
9 diligence Lessor is unable, wholly or in part, to prevent or overcome.
10
11
12 PART II
13
14
15 32. LESSEE'S OPTION AND RIGHT TO PURCHASE: Provided that Lessee is not then in
16 default of any of the terms, provisions, covenants and conditions in this Agreement, the Lessee is
17 granted the exclusive and irrevocable right and option to purchase the fee simple title to the Property
18 on or at any time before three (3) years from the Commencement Date, by giving notice of exercise
19 of the Option to Lessor no later than 60 days prior to each annual anniversary of the term thereafter.
20 The option to purchase granted herein shall expire sixty (60) days prior to the third (3rd) annual
21 anniversary of the Commencement Date, unless otherwise extended by agreement among the Parties.
22 The option granted herein is coupled with an interest. The purchase price (the "Purchase Price ") for
23 the Property on the Commencement Date shall be Seven Hundred and Fifty Thousand and 00 /100
24 Dollars ($750,000.00) and shall be as follows:
25
26 Lessee agrees to pay the Base Rent Payment of the Lease totaling $500,000.00, on the
27 Commencement Date. The Second Base Rent Payment totaling $100,000.00 shall be paid in full on
28 the first anniversary of the Commencement Date. The Third Base Rent Payment totaling
29 $100,000.00 shall be paid on the second anniversary of the Commencement Date. The Final Base
30 Rent Payment totaling $50,000.00 shall be paid in full three (3) years from the Commencement Date.
31 All Base Rent payments paid by Lessee to Lessor under this Agreement shall be credited against the
32 Purchase Price at the closing of the purchase by Lessee.
33
34 For example, if the Lessee elects to purchase the Property after the Commencement Date
35 after the First Base Rent Payment totaling $500,000.00 has been made, Lessee shall receive a credit
36 of $500,000.00 against the Purchase Price at closing.
37
38 Notwithstanding anything herein to the contrary, in the event the Lessee procures grant funds
39 from the Florida Communities Trust ( "FCT ") or any other grant program at any time during the term
40 of this Lease - Purchase Agreement, the entire sum necessary for the Lessee to acquire fee simple title
41 to the Property shall become due and payable and the parties shall proceed to close this transaction
42 within thirty (30) days of receipt of such grant funds.
43
44
45 33. OPTION TO PURCHASE CONSIDERATION:
14
2 (a) Simultaneous with the execution of this Agreement, Lessee shall pay to Lessor the
3 sum of $100.00 in cash as non - refundable consideration for the exclusive right and option to
4 purchase the Property (hereafter, the "Option Money ").
6 (b) All of the Option Money paid shall be credited by Lessor against the Purchase Price if
7 Lessee elects to close the purchase of the Property under this Agreement.
9 34. CASH TO CLOSE: At closing, Lessee shall pay the difference between the Purchase Price
10 and the sum of credits against the Purchase Price as set forth in accordance with the provisions of
11 paragraph 32 of this Agreement, and other credits set forth in this Agreement paid by Lessee to
12 Lessor hereunder. Furthermore, Lessee shall pay to Lessor at closing, the accrued interest on the
13 remaining principal balance from the day of the immediately preceding Base Rent Payment until the
14 day of closing.
15
16 35. TITLE:
17
18 (a) Within 30 days following the exercise of the Option granted under this Agreement,
19 Seller shall deliver to Buyer a commitment, and, after closing, an owner's title policy, for owner's
20 title insurance, with a qualified title insurance company reasonably acceptable to Buyer, in the
21 amount of the Purchase Price, reflecting good and marketable fee simple title to the Property in
22 Seller, subject only to such easements and restrictions of record, visible easements not of record
23 disclosed in writing by Seller or Buyer, or by the survey, and applicable planning and zoning
24 ordinances, all appearing in Lessor's Title Policy at the time Lessor acquires the Property. Buyer
25 hereby agrees that the matters shown on Exhibit "B ", constituting the Schedule B -2 exceptions in
26 Seller's title insurance policy, shall each be permitted title exceptions (the "Permitted Title
27 Exceptions ") to which Buyer may not object.
28
29 (b) Buyer agrees that it may not treat as an objection any matter shown on the
30 commitment resulting from any act or failure to act by Buyer, including but not limited to claims of
31 lien resulting from work performed on the Property or materials ordered by Lessee to be incorporated
32 into the Property, and any ordinance, law or regulation affecting the Property which takes effect at or
33 following the date of Commencement of the Lease Term. Seller shall diligently attempt to satisfy
34 Buyer's stated title objections and shall have until the date of closing to do so.
35
36 Buyer acknowledges and agrees the Seller is taking title to the Property subject to existing
37 easements, covenants, and restrictions of record and has had an opportunity to review Seller's Title
38 Commitment at the time of Seller's acquisition of the Property and agrees to take title to the Property
39 on the same terms and conditions, and subject to the same title policy exceptions as they may appear
40 in Seller's title policy, and subject to the Permitted Title Exceptions.
41
42 36. CLOSING: The purchase and sale transaction contemplated by this Agreement shall be
43 closed in accordance with the provisions of Paragraph 32 at a time and place mutually agreeable to
44 the parties at the offices of the title insurance agent issuing title insurance to the Buyer, recording
15
I documents and disbursing funds. Seller shall deliver to Buyer at closing the following documents,
2 prepared by Seller's counsel:
3
4 (i) a general warranty deed to the Property meeting the requirements as to title of
5 Paragraph 35 above;
6
7 (ii) an owner's affidavit attesting to the absence of mechanic's or materialmen's
8 liens arising from work or materials contracted for by Seller, proceedings
9 involving Seller which might affect title to the Property, or parties in
10 possession other than Buyer.
11
12 (iii) Foreign Investment and Real Property Tax Act (FIRPTA) and such other
13 instruments and documents as Buyer's counsel may reasonably request for
14 the purpose of confirming proper and lawful execution and delivery of
15 closing documents and conveyance of the Property to Buyer in accordance
16 with the Agreement.
17
18 37. CLOSING EXPENSES AND PRORATIONS: Buyer shall reimburse Seller for Seller's
19 reasonable and documented expenses incurred during Seller's acquisition and disposition of the
20, property, including the cost of obtaining title insurance, the environmental site assessment, the
21 boundary survey and the market value appraisal. Such reimbursement shall be made on the
22 Commencement Date. Transfer taxes on the deed of conveyance, if any, shall be borne by Buyer.
23 The cost of recording the deed shall be borne by Seller. All other expenses shall be paid by the party
24 incurring the same.
25
26 38. SELLER'S REPRESENTATIONS AND WARRANTIES: Seller represents and warrants to
27 Buyer, that:
28
29 (a) Seller has good and marketable fee simple title to the Property as hereinabove
30 described;
31
32 (b) Seller has the right, power and authority to enter into this Agreement and to
33 consummate it in accordance with its terms;
34
35 (c) There are no leases, licenses, contracts or agreements of any kind whatever affecting
36 the Property or any part thereof except this Lease - Purchase Agreement and those set forth in Exhibit
37 "C" attached hereto and by reference incorporated herein, all of which are cancelable without cause
38 upon no more than thirty (30) days' written notice;
39
40 (d) Seller will not extend or modify any of the agreements listed in Exhibit "C" as
41 attached and acknowledged by Seller, or enter into any other contracts or agreements of any kind
42 affecting the property or any part thereof after the date of this Agreement without the advance written
43 consent of Buyer;
44
16
I (e) Seller knows of no pending or threatened proceedings which might affect the Property
2 or any part thereof or Seller's title thereto;
4 (f) There exists no uncured notices served upon or delivered to Seller by any private or
5 governmental party which might result in any lien upon or claim against the Property or any part
6 thereof or which specify any violation of law, rule, regulation, or ordinance with respect to the
7 Property or any part thereof.
9 Seller will take all such actions as will cause all of the foregoing representations and
10 warranties to be true and correct as of closing.
11
12 39. MEMORANDUM OF LEASE AND OPTION: Concurrently with the signing of this
13 Agreement, the parties have signed a Memorandum of Lease and Option in the form attached hereto
14 as Exhibit "D" and by reference incorporated herein. Seller and Buyer shall have the right to record
15 the Memorandum of Lease and Option among the public records of the county in which the Property
16 is located. In the event Buyer does not exercise the option, or terminates the Agreement, Buyer shall,
17 upon Seller's written request, deliver to Seller for recording at Seller's expense a quitclaim deed to
18 the Property. The Memorandum may also be canceled by execution and release signed by The Trust
19 for Public Land.
20
21 40. REMEDIES UPON DEFAULT: In the event Seller defaults in the performance of any of
22 Seller's obligations under this Option to Purchase, Buyer shall have as its only remedies the refund
23 of the Option Money paid to Seller and the right to sue for specific performance and shall be entitled
24 to all costs such as legal fees associated with enforcing this Agreement. In the event Buyer defaults
25 in the performance of any of its obligations under this Agreement, Seller shall have the right to retain
26 or to sell the Property to a third parry, and to sue for damages for all losses resulting from Buyer's
27 breach.
28
29 41. NOTICES: All notices, demands, requests or other communications permitted or required by
30 this Agreement shall be in writing and shall be deemed to have been duly given if delivered by the
31 date called for under this Agreement, or mailed, first class, postage prepaid, certified, mail, return
32 receipt requested, addressed as follows:
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IF TO LESSOR — SELLER:
With a copy to:
THE TRUST FOR PUBLIC LAND
Attn: Peter Fodor, Florida Counsel
306 North Monroe Street
Tallahassee, Florida 32301
PHONE: (850) 222 -7911 ext. 29
FAX: (850) 222 -8909
Email: pete.fodor @tpl.org
THE TRUST FOR PUBLIC LAND
Attn: Mildred Majoros, Project Manager
7900 Red Road, Suite 25
South Miami, Florida 33143
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PHONE: (305) 667 -0409 ext. 11
FAX: (305) 667 -0427
Email: mildred.majoros @tpl.org
IF TO LESSEE — BUYER: CITY OF SOUTH MIAMI, FLORIDA
6130 Sunset Drive
South Miami, FL 33143
Attention: Yvonne McKinley, City Manager
PHONE: (305) 668 -2510
FAX: (305) 663 -6345
Email: ymckinley @cityofsouthmiami.net
cc:
Luis Figueredo, City Attorney
Nagin Gallop Figueredo
18001 Old Cutler Road
Suite 556
Miami, Fl 33157
42. APPLICABLE LAW: This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida.
43. HEADINGS: The headings used in this Agreement are for convenience of reference only and
shall not operate or be construed to alter or affect the meaning of any of the provisions hereof.
44. CONDITIONS PRECEDENT TO LESSOR'S DUTIES TO PERFORM UNDER THIS
AGREEMENT: Lessor shall have no duty to perform under this Agreement unless and until each of
the following conditions precedent has been fulfilled:
(a) Lessor has acquired fee simple title to the Property; and
32 (b) Lessee has delivered to Lessor a certified copy of a resolution of Lessee authorizing
33 execution of the Agreement, together with the opinion of Lessee's counsel stating that the Agreement
34 has been authorized according to law, and when executed by both of the parties, shall constitute an
35 enforceable obligation of Lessee according to its terms.
36
37 (c) Lessee has agreed to accept the Survey and legal description provided by Lessor as
38 determinative of the boundary and acreage of the Property, and has agreed that it shall accept title to
39 the Property subject to the Survey, including any encroachments, easements, boundary claims, or
40 defects shown on the survey or visible on the ground upon reasonable inspection. The Survey, when
41 available shall be appended to this Agreement as Exhibit "E."
42
43 45. PRECONDITION TO LESSEE'S DUTY TO PERFORM: Lessee shall have no duty to
44 commence to perform any obligation hereunder until and unless Lessor shall have provided to Lessee
45 the report of a Phase One transactional environmental assessment, as that term is commonly
18
I understood in Florida real estate field, carried out by a licensed professional engineer or geologist,
2 stating that further investigations are not recommended.
4 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
5 set forth below.
7 Signed, sealed and delivered
8 In the presence of:
10
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LESSOR: THE TRUST FOR PUBLIC LAND
a nonprofit California corporation
Gregory J A Chelius, Florida State Director
Date:
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Counterpart signature page for Lease - Purchase Agreement
Signed, sealed and delivered
in the presence of:
(Corporate Seal)
20
LESSEE:
CITY OF , FLORIDA
Grantee
BY:
Name:
Title:
Date:
City of
IM
2
EXHIBIT "A"
LEGAL DESCRIPTION
4
5 Beginning 25 feet East and 141 feet South of the Northwest corner of the NE 1/4 of the NE 1/4 of
6 the SE 1/4 of Section 36, Township 54 South, Range 40 East, thence run South 126 feet; thence
7 East 205.15 feet; thence North 126 feet; thence West 205.15 feet to the point of Beginning, lying
8 and being in Miami -Dade County, Florida.
21
2 EXHIBIT "B"
3 TITLE EXCEPTIONS
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EXHIBIT "C"
LEASES, LICENES, CONTRACTS OR AGREEMENTS
If there are no leases, licenses, contracts or agreements, Seller shall so state and sign and date below.
If there are any leases, etc., the parties should be listed here and a copy of each lease delivered to
Buyer for review prior to execution.
23
By: _
Name:
Title:
Date:
I EXHIBIT "D"
2 MEMORANDUM OF LEASE AND OPTION
3
4 For and in consideration of the sum of $10.00 and other valuable consideration, the receipt
5 and sufficiency of which are hereby acknowledged, by the parties hereto, THE TRUST FOR
6 PUBLIC LAND, a nonprofit California corporation, whose address is 306 North Monroe Street,
7 Tallahassee, Florida, 32301 (hereinafter referred to as the "Lessor" or "Seller"), hereby grants to the
8 City of , Florida ( "City "), (hereinafter referred to as the "Lessee" or "Buyer ").the
9 sole, exclusive and irrevocable option to purchase that certain real property and appurtenances
10 thereto, comprising a total of +/- acres in Miami -Dade County, Florida, described more fully
11 in EXHIBIT "A" attached hereto and by this reference made a part hereof. The option herein granted
12 extends from the date hereof through 12:00 midnight 60 days prior to the end of the Lease Term (the
13 "Option Term "). The full text of the option granted may be found in a certain Lease - Purchase
14 Agreement between Lessor and Lessee of even date herein. If the option is not exercised on or
15 before the end of the Lease Term, said exclusive option shall automatically expire and be of no
16 further force and effect without the necessity to record any other instrument. A true and complete
17 copy of the Lease Purchase Agreement is on file with the City Clerk of the City of
18 Florida, City of ,
19 Florida
20
21 IN WITNESS WHEREOF, each of the parties hereto has caused this Memorandum of Option
22 to be executed and sealed by its duly authorized signatory(ies) on the day of 200.
23
24 Signed, sealed and delivered LESSOR: THE TRUST FOR PUBLIC LAND
25 in the presence of: a nonprofit California corporation
26
27
28 Witness By:
29 W. Dale Allen
30 Print Name Senior Vice President
31 Date:
32 Witness
33
34 Print Name Corporate Seal
35
36 STATE OF FLORIDA
37 COUNTY OF LEON
38 The foregoing instrument was acknowledged before me this day of
39 200_, by W. Dale Allen, as Vice President of The Trust for Public Land, a California non - profit
40 corporation, who is personally known to me.
41
42 (NOTARY PUBLIC SEAL)
43 Notary Public
44
45 (Printed, Typed or Stamped Name of Notary Public)
NZ
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Commission No:
My Commission Expires:
Signed, sealed and delivered LESSEE:
in the presence of: CITY OF , FLORIDA
(Corporate Seal)
THIS DOCUMENT PREPARED BY
Grantee
BY:
Name
Title
Date:
Peter Fodor
Florida Counsel
The Trust for Public Land
306 North Monroe Street
Tallahassee, Florida 32301
25