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05-17-05 Item 18including the Miami-Dade County Building Better Communes Bond Program, t Codina Development Corporation Development Agreement, the South Miami Corporati Development Agreement and the City of South Miami General Fund. The maximu 4 amount that the City will be required to finance through the General Fund will be $247,00 which is less than / %. the total purchase price. There will be no debt service requirements in the current fiscal year. The anticipated de I service over the next 5 years will average approximately $55,000 per year. Currentl $84,000 remains available in the Non-Departmental Debt Service — YMCA account 001.2100.519.9927. This amount will be carried over to next fiscal year to cover the City debt service amount on the loan. Vf lc;�V TVIVI)TICK-UT-13—Mater UlIaMI Tor tne purcnase ot tne property locatea a. 4300 SW 58 Avenue. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ATTEST: CITY CLERK CITY ATTORNEY day of June, 2005. CAMy DocumentskWord Documents\OrdinanceYMCAPurchase.doc I't Reading — 2nd Reading — COMMISSION VOTE: Mayor Russell: Vice Mayor Palmer: Commissioner Birts-Cooper: Commissioner Sherar: Commissioner Wiscombe: AGREEMENT OF SALE THE YMCA OF AGREEMENT OF SALE AND PURCHASE THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement ") is into by and between THE YMCA OF GREATER MIAMI, a Florida nQ" (hereinafter referred to as "Seller "), and THE CITY OF SOUTH MIAMI, a,,,, Dade Florida (hereinafter referred to as "Purchaser "). Seller and Puiehas( collectively referred to herein as the "Parties" and each of the Party" i` son referred to herein as a "Party ". WHEREAS, Seller is the owner of certain real propert at, 4300 SW 58th Avenue Miami, Florida 33155 consisting of office building containing square feet, respectively, that include but are not limited to the basketbal courts, rai approximately acres of open -field space as legally describe made a part hereof for all purposes by this reference the "Prope WHEREAS, Seller desires to sell and simultaneously therewith, to ent ',J a lease tr ,, Seller, and Seller shall lease fronchaser, a p( NOW, THER agreements contained of which are hereby ai f the Pr( sum of )le cons. Follows: ;reation center ire or less, reci ball court, sm i Exhibit "A" ); and „to purchase to which Purc ty. 0.00, the mut ation, the rece entered of Miami- sometimes singularly hereon located administrative anal structures ling pool, and ied hereto and Property, and shall lease to enants and sufficiency following terms shall have the a bi11,,;, r bills Of sale i&ffie form attached as Exhibit B hereto, and Lser W;f the itxns set forth therein. other than Saturdays, Sundays and legal holidays. igatioi liability, lien, encumbrance, loss, damage, cost, expense or tion, any claim for damage to property or injury to or death of any "Closing' trieans the consummation of the sale and purchase of the Property, to be held at the offices 0', Murai Wald Biondo Moreno & Brochin, P.A. or such other place as the Parties may "dosing Certificate" means a certificate in the form of Exhibit "C' wherein Seller shall represent that the representations and warranties of Seller contained in this Agreement continue to remain true and correct as of the Closing Date except with respect to those matters that may be disclosed in writing to and accepted by Purchaser prior to the Closing Date. "Closing Date" means June —, 2005 or the earlier or later date as shall be hereafter agreed upon by the Parties. "Deed" means a warranty deed substantially in the form of Exhibit "D" attached hereto executed by Seller, as grantor, in favor of Purchaser, as grantee, conveying, � the Property to Purchaser, subject only to the Permitted Exceptions. "Due Diligence Materials" means the information to be pr ©vld d by Seller to Purchaser exception true, correct aff legible pies of each document listed as an " iffeans .the abstract `zGuaranty "''means a xaranty of performance of the Lease substantially in the form attached hereto as°Exhibit "F1 to be ,e"x ecuted by the YMCA of Greater Miami. zardous Materials" means any substance, including without limitation, asbestos or any substance containing asbestos and deemed hazardous under any Hazardous Materials Law, the group of organic compounds known as polychlorinated biphenyls, flammable explosives, radioactive materials rri'dical waste, chemicals, pollutants, effluents, contaminants, emissions or related materials", and items included in the definition of hazardous or toxic wastes, materials or substances underny Hazardous Materials Law. "Hazardous Materials Law" means any law, regulation or ordinance relating to environmental conditions, medical waste and industrial hygiene, including, without limitation, the Resource Conservation and Recovery Act of 1976 ( "RCRA "), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ( "CERCLA "), as amended by the Superfiand Amendments and Reauthorization Act of 1986 ( "SARA "), the Hazardous Materials Transportation Act, the Federal Water Pollution Control Act, the Clean Air Act, the Clean Water Act ,-:,the Toxic Substances Control Act, the Safe Drinking Water Act, and all similar federal, „state.:and local environmental statutes, ordinances and the regulations, orders, or decrees dw" &S hereafter promulgated thereunder. "YMCA" means the YMCA of Greater Miami, a Florida Seller. which is the Improvements means all buildings, structures, Fixtur.� and other improvements of every kind now or on the Closing Date located on the Land, including, without limitatioh,, all landscaping, parking lots and structures, roads, drainage recreational facilities, and all above ground and underground utility structures, equipment systems that cons ute Fixtures ands other so-called "infrastructure" improvements. wl or "Parties' /,,,h've tlmeanings set forth'in the preamble to this Agreement. Permits" means a1J'permit�, l censer, :approvals, entitlements, notifications, determinations �� qq� . and other governrn� tal ,id quasy govvernmental authorizations including, without limitation, certificates of occupancy, rquire�� ,'connection with the ownership, planning, development, construction, use, operatiorr maintenance of the Property. As used herein, "quasi- governmental" shall ind e the providers WI utilities services to the Property. "Permitted Exceptais" means those title exceptions or defects which are approved in writing by Purchaser pursuant to Article V of this Agreement. means, collectively, the Land and all Improvements and fixtures. Price" means an amount equal to $2,750,000.00. "Recreational Facilities" means existing recreational structures located within the Property that include but are not limited to the basketball courts, racketball court, swimming pool, recreation center and office building. "Review Period" means 45 days from the Effective Date of the Agreement. "Search Reports" means the initial reports of searches made of the Uni Code Records of Miami -Dade County and of the office of the Secretary of State searches shall reflect that none of the Property is encumbered by liens. The Searc updated, at Seller's expense, at or within one week prior to Closing. d "Survey" means the most current survey of the Property in Selma' possess; Title Commitment means a current commitment istied by tie\ Title Purchaser pursuant to the terms of which the Title Company shl commit to issue Purchaser in accordance with the provisions of this Agreemei and reflecting would be listed as exceptions to coverage on the Title Policy. "Title Company" means ank s "Title Policy" means an ALTA E) together with the endorsements thereto as are "Warranties" Property, whether f beneficiary. lr at implied, which101& ARTIC ✓IEN i S TO SEE , I r to Purchaser and Purchase Price an( ted or required by to the Pe emits. L, which shall be ►mpany to the Title Policy to matters which verage lOwi x` Policy of Title Insurance and cus 0WIff" 11 required. tions and guaranties with respect to the now ho ds or under winch Seller is the LEASE he Closing Date, Seller shall sell, till purchase, acquire and accept the terms and conditions of this shall assign to Purchaser all of ARTICLE IV ITEMS TO BE FURNISHED TO PURCHASER BY SELLER 4.1 DUE DILIGENCE MATERIALS. Within 4-53 days after the Effective Date, Seller shall deliver to Purchaser or make available to Purchaser at the Property for its review the following items, if such items are in Seller's possession: (a) True, correct, complete and legible copies of all documents pertaining to the Property including but not limited to Agreements, Warranties, Permits, and Engineering Dpcuments; (b) True, correct, complete and legible copies of the following iterxis (i) all existing fire and extended coverage insurance pot i0s and -any other insurance policies pertaining to the Property; , (ii) all instruments evidencing, governing or securLng the payment of any loans secured by the Property or related thereto; M'' �Q(c) the 4.2 DUE DILIQENCEVIE` to review the Due Diligence, aterials deliv the provrsrcootion 4 above.. Purch with accesto therppertypfo corrdt7ct any J During the Revie ' Period Purchas V l all be entitled gyred - or n"" available by Seller to Purchaser pursuant to isef andrf1engineeis; and consultants shall be provided stu h l c' erred nec�' -," by the Purchaser to properly If Purchaser: shall, 36r any reason in Purchaser's sole &Many aspe of the f ormation, or the Property, then Agreement givi! written notice thereof to Seller on y d, where p this Agreement shall automatically be immedratel�ay or cause to be removed by transfer to 'roperty, s a result of any actions taken above by or on sir and restore the Property to its condition existing hr's investigations; (iii) indemnify, defend and hold damages or losses incurred by the Property as a direct teaser, any of its agents, representatives or contractors, or s, inspection services or other services on its behalf. At the ed of theeview period Purchaser shall accept the property in "AS IS" condition unless Purchases' has prMded written notice setting forth the defect, deficiency or encumbrance and specifredO, time��ithin` which Seller may remedy or cure the noticed item (before or after the expirati( of the Review Period). If any defect, deficiency or encumbrance, so noticed, is not satisfied�esnlved to the satisfaction of Purchaser, in Purchaser's sole discretion, within the time period sPeo ed in the written notice, this Agreement shall automatically terminate as provided in this sec Other than any obligations Seller may have in accordance with Article V hereinbelow, Sellers not obligated to cure any defect, deficiency or encumbrance noted by Purchaser and Seller may elect in its sole discretion not to cure same. ARTICLE V TITLE AND SURVEY 5.1 TITLE COMMITMENT, EXCEPTION DOCUMENTS AND SURVEY Within 3 days of the Effective Date, Seller shall deliver or cause to be delivered to Purchaser, tlg %lvidence of Title. ,,:- _. 6A REPRESENTATIONS: AND WARRANTIES OF SELLER. To induce Purchaser to enter into phis Agreement and to purchase the Property, Seller represents and warrants to Purchaser, to the best'of its kn6wledge_ as follow- (a) Pursuant to Section 5.2 hereof, Seller has and at the Closing Seller will have, and will�convey, transfer and assign to Purchaser, good, marketable, fee simple and insurable title to the Land "" ree and clear of any deeds of mortgages, liens, encumbrances, leases, tenancies, licenses, chattel mortgages, conditional sales agreements, security interests, covenants, conditions, restrictions Judgments, rights -of -way, easements, encroachments and any other matters affecting title or use "`of the Property, except for the Lease. (b) Seller has duly and validly authorized and executed this Agreement, and has right, title, power and authority to enter into this Agreement and, at Closing, to consummate the actions provided for herein. Seller warrants that it does not require the joinder of any person or entity in order to convey the Property fully and completely to Purchaser at Closing and to lease a portion of the Property from Purchaser following Closing. The execution by Seller of this Agreement and the consummation by Seller of the transactions contemplated herein does not, and at the Closing will not, result in a breach of any of the terms or provisions of, or constitute -, default or a condition which upon notice or lapse of time or both would ripen into a dofaultnder any indenture, agreement, instrument or obligation to which Seller is a party or by.� kff`the Property or any portion thereof is bound; and does not and at the Closing will not, const�e %aiolaton of any M. order, rule or regulation applicable to Seller or any portion of the Propertyf a €court or of any, federal or state or municipal regulatory body or administrative agency %off other g ernmental body having jurisdiction over Seller or any portion of the Property. (c) There are no adverse or other parties %�' possession of the Property and no party has been granted any license, lease or other right relatp to the use or possession of the Property. (kj) There will exist no material service contracts, management or other agreements applicable to the Property. There are no material agreements or understandings (whether oral or written) with respect to the Property or any portion thereof, to which Seller is a party, other than those delivered to Purchaser pursuant to Section 4.1. 0 (k) No default or breach exists under any of the Business Agreements, or any of the covenants, conditions, restrictions, rights -of -way or easements affecting the Property or any portion thereof (ml) There are no actions, suits or proceedings pending or threatened against or affecting the Property or any portion thereof, or relating to or arising out of the ownership, or by any federal, state, county or municipal department, commission, board, l red or ° agency or other governmental instrumentality, other than those disclosed to Purchaser ,uruant to Section 4.1. (am) There are no attachments, executions, assignments ,or the be i fit of creditors, or voluntary or involuntary proceedings in bankruptcy or der any; other debtor relief laws contemplated by or pending or, threatened against Seller or the Property. 6".12 1NDEMNIT F SELIR. Subject to the provisions provided hereafter limiting the liability of Seller, feller herby agre &s to indemnify and defend, at its sole cost and expense, and hold Purchaser, its s�uccesst and assigns, harmless from and against and to reimburse Purchaser with respeet to any ;end a1 s, demands, actions, causes of action, losses, damages, liabilities, costs and expenses„(includirig, without limitation, reasonable attorneys' fees and court costs) of any and eve kind oT,:character, known or unknown, fixed or contingent, asserted against or incurred by Purchases, at an y. time and from time to time by reason of or arising out of (a) the breach of any representation or warranty of Seller set forth in this Agreement, unless such breach was discoverable by Purchaser" �uring the Review Period and Purchaser elected not to terminate the Agreement, (b) the faild6 of Seller, in whole or in part, to perform any obligation required to be performed by Seller pursut to Section 6. 1, unless the Purchaser knew prior to closing about the failure of performance and elected to close the transaction, and (c) violations occurring on or before the Closing Date, and during the time that the Seller owned the Property, of any Hazardous Material Law in effect on or before the Closing Date and any and all matters arising out of any act, omission, event or circumstance existing or occurring on or prior to the Closing Date and during the time that the Seller owned the Property, (including, without limitation, the presence on the Property or release from the Property of Hazardous Materials disposed of or otherwise released prior to the Closing; Date and during the time that the Seller owned the Property) which results in a violation of a Hazardous Materials Law, regardless of whether the act, omission, event or circumstance constituted a violation of any Hazardous Materials Law at the time of its existence or occurrence The; provisions of this Section 6.2 shall survive the Closing of the transaction contemplated by this Agreement and shall continue thereafter in full force and effect for the benefit of Purchaser, -its successors and assigns. Wes. However, notwithstanding any provision of this Agreement to the cont�ary, 'Purchaser may exercise any right or remedy Purchaser may have at law or in equity should "' e fail to meet, comply with or perform its indemnity obligations required by this Section 6 Z 6.3 COVENANTS OF SELLER. Seller covenants '%d agrees with Purchaser, from the Effective Date until the Closing or earlier termination of this Agreement ESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. and warrants to Seller that: 4 ��'' (a) Purchaser has duly and validly authorized and executed this Agreement, and has fui right, power and authority to enter into this Agreement and to consummate the actions provided for herein. (b) The execution by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated herein have been authorized by the City Commission in accordance with its Charter and Code of Ordinances. condi taken b: Review may be (d) !�To materiz f the Property sufsequ (e) Neithcr the .ecution - other'proce substantial change shall have occurred with respect to the the epiration of the Review Period. wrt.'N or any part thereof or interest therein shall have been law in any action prior to Closing after the expiration of the (f) - %% Purchaser shall have received, in form acceptable to Purchaser, evidence of by the/ ropert� with all Permits or approvals required as of the Effective Date hereof as ;ssaryr appropriate for the operation of the Property. low rx) Purchaser shall be satisfied with all matters regarding title and survey ticle V hereof. (h) No portion of the Property shall have been destroyed by fire or casualty after the expiration of the Review Period. (i) No condemnation, eminent domain or similar proceedings shall have been commenced or threatened with respect to any portion of the Property after the expiration of the Review Period. 7.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event any one or more of the conditions to Purchaser's obligations are not satisfied in whole or in part as of the Closing, Purchaser, at Purchaser's option, shall be entitled to: (a) terminate this Abe -ement by giving written notice thereto to Seller and neither Purchaser nor Seller shall have; any further obligations or liabilities hereunder; (or (b) waive the failure of condition and p� "ceed f Closing hereunder. ARTICLE VIII PROVISIONS WITH RESPECT TO 8.1 SELLER'S CLOSING OBLIGATIONS. Seller. shall furnish and deliver to the Purchaser, at closing the following: \ (a) The Deed, Bill of Sale, Closing Certificaf the Lease Agreement, each duly executed and acknowledged by Seller. '% (f) "'f The �ntruments or documents as are necessary, or reasonably required by Purchasr the IRe Company, to evidence the status and capacity of Seller and the authority of the person o ersons,�who are executing the various documents on behalf of Seller in connection with the purche and ale transaction contemplated hereby. 'S CLOSING OBLIGATIONS. At closing, Purchaser shall deliver the (a) Cash or certified funds in the amount of TWO MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($2,750,000.00). (b) The Lease, duly executed and acknowledged by Purchaser. (c) Municipal Resolution(s) authorizing Purchaser to consummate the transactions contemplated hereby and to execute and deliver the closing documents on the Purchaser's part to be delivered.y ARTICLE IX EXPENSES OF CLOSING AR AULT , 10.1 SELLER'S IVFAUI�T; (a) ` Purchaser's Default. Purchaser shall be deemed to be in default hereunder upon the occurrence of any one or more of the following events: (i) any of Purchaser's warranties or represent ©s set forth herein shall be untrue in any material respect when made or at Closing; or (ii) Purchaser shall fail in any material respect to meet, comply with, or perform any covenant, agreement or obligation on its part within the time limits and in the manner required in this Agreement. (b) Seller's Remedy. In the event Purchaser shall be deemed to be in default hereunder, Seller, as Seller's sole and exclusive remedy for the default, shall be entitled to terminate this Agreement and all rights of Purchaser hereunder. This shall constitute Seller's sole remedy against the Purchaser. ARTICLE XI MISCELLANEOUS 11.1 SURVIVAL. All of the representations, v indemnities (but not matters or items identified as conditions and Purchaser contained in this Agreement, to the extent not the Closing. 11.2 NOTICES. All notices, requests and other shall be in writing and shall be delivered in person or sent 1 addressed as follows: oratt herein If to Purchaser: City Manager City of South Miami 6130 Sunset Drive South Miami, 3314 and Seller rvive ;ment vice, tress, apid" to the attention of the other person, as the parties shall give notice as l the notices, requests and other communications shall be deemed to have been for all purposes hereof upon delivery in person or one day after deposit with an service. 1-:3 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies and constitutes the entire understanding between the parties with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements (oral or written) are merged into this Agreement. Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the Party against whom the enforcement of the waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in the instrument. 11.4 APPLICABLE LAW. This Agreement and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the state Flonda 11.5 CAPTIONS. The captions in this Agreement are inserted fof `convenience of reference only nd in no way define describe, or limit the scope or infest of this Agreement or an Y Y � :. g Y of the provisions hereof. 11.6 BINDING EFFECT. This Agreement shall be'' ding upon and,.shall inure to the benefit of the parties hereto and their respective heirs, executoadministrators, legal and personal representatives, successors, and assigns. j 143/11 RISIK OF.,,LOSS. Until the Closing Date, the risk of loss of any portion of the Property "BI all be solely that of Seller. Risk of loss shall be that of Purchaser from and after the Closing ate, atwhich time Seller shall deliver to Purchaser possession of the Property. " NO ASSUMPTION OF LIABILITIES. Purchaser shall not assume any of the existing, liabilities, indebtedness, commitments or obligations of any nature whatsoever (whether fixed fir contingent) of Seller in respect of the Property or otherwise, except those expressly assumed herein. 11.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. EXECUTED to be effective as of June , 2005. PURCHASER: City of South Miami EXHIBIT A Legal Description of Land Bill of Sale EXHIBIT C Closing Certificate Page 19 of 22 EXHIBIT D Warrant Page 20 of 22 EXHIBIT E Guaranty of Performance of The Lease Page 21 of 22 EXHIBIT F Lease Agreement Page 22 of 22