Exhibit 10.19
POST CLOSING AGREEMENT
THIS POST CLOSING AGREEMENT (this "Agreement") is entered into as of
the ___ day of February, 2004 by and between WILLIAMSBURG RETIREMENT INVESTORS,
LTD., A FLORIDA LIMITED PARTNERSHIP ("Owner"), WILLIAMSBURG RETIREMENT LIVING,
INC., A FLORIDA CORPORATION ("ALF Operator" and collectively with Owner,
"Seller") and SFBC INTERNATIONAL, INC., A FLORIDA CORPORATION and 11190
BISCAYNE, LLC, A FLORIDA LIMITED LIABILITY COMPANY (collectively, "Purchaser").
R E C I T A L S:
I. WHEREAS, On February 27, 2004 (the "Closing Date"), simultaneously
with the execution of this Agreement, Purchaser purchased from the Seller the
following:
All of the real property located in Miami-Dade County, Florida,
described on Exhibit "A" attached hereto and made a part hereof (collectively,
the "Fee Land"), together with (i) all and singular the rights, easements and
appurtenances pertaining thereto, (ii) all right, title and interest of the
Seller in and to any and all roads, easements, alleys, streets and rights-of-way
bounding the Fee Land, together with all rights of ingress and egress unto the
Fee Land, (iii) strips or gores, if any, between the Fee Land and abutting
properties, and (iv) any and all oil, gas and minerals lying under, in, on or
about or constituting a part of the Fee Land, and regardless of whether or not
the minerals are considered part of the surface estate or part of the mineral
estate;
(a) All of the Seller's interest as lessee in that certain
99-year Lease by and between East Bay Corporation, as lessor, and Ocean
Breeze Corp., as lessee, recorded in Deed Book 2809, Page 464, as
amended by instruments recorded in Deed Book 3694, Page 486; Deed Book
3714, Page 195; Deed Book 3720, Page 39; Official Records Book 6835,
Page 915; Official Records Book 6858, Page 614; Official Records Book
8093, Page 789; Official Records Book 8725, Page 240; Official Records
Book 8815, Page 809; Official Records Book 11297, Page 1480; Official
Records Book 11688, Page 499; Official Records Book 13249, Page 2002;
Official Records Book 13249, Page 2005; Official Records Book 13871,
Page 1100; Official Records Book 13878, Page 3613; Official Records
Book 18151, Page 150, and Official Records Book 18536, Page 4898 (the
"Land Lease") with respect to that certain parcel of real property
adjacent to the Fee Land and described on Exhibit "A" attached hereto
and made apart hereof (the "Leasehold Land"), and any tenancies or
other rights of occupancy or use for any portion of the Leasehold Land
or the improvements located thereon (the "Leasehold"). The Leasehold
Land and the Fee Land are collectively referred to as the "Land");
(b) Any and all improvements and structures located upon the
Land together with all accessions and additions thereto and including,
but not by way of limitation, those certain buildings, structures,
fixtures and other improvements of every kind and nature presently
situated on, in or under or hereafter erected, installed or used in, on
or about the Land and including, without limitation, all mechanical
systems, elevator equipment and HVAC apparatus and equipment (the
"Improvements");
(c) Seller's interest, free and clear of any security
interests, in all of the fixtures, fittings, apparatus, equipment,
machinery, trade names, and other items of tangible and intangible
personal property and replacements thereto, if any, whether affixed or
attached or located within or used in connection with the operation,
maintenance or management of the Land and/or the Improvements,
including, but not limited to, (i) all utilities, rights and permits,
water rights and water stock; and (ii) any and all plans, engineering
plans, drawings, architectural drawings, shop drawings, specifications,
surveys, blueprints, site plans, mylars, patents, copyrights, designs,
plans and surveys related to water, sewer, paving, grading and
drainage, soils reports, environmental site assessments or audits,
feasibility studies, zoning documents, brochures, market materials, and
other technical descriptions that relate to the Land and the
Improvements (the "Personal Property"); and
The Land, Improvements, and Personal Property are sometimes hereinafter referred
to collectively as the "Project."
II. WHEREAS, Seller is providing assisted living facility
accommodations at the Project to various third-party individuals (the
"Residents") pursuant to various agreements (the "ALF Contracts") substantially
in the same form and content as that certain form agreement attached hereto
Exhibit "B" (the "Form Contract"); and
III. WHEREAS, the ALF Contracts provide that Seller may terminate said
contracts, with or without cause, by giving 45-days written notice to the
applicable Resident(s); and
IV. WHEREAS, Seller has leased a portion of the Premises (the "Tenant
Leasehold Premises") to OMA International, Inc. ("Tenant") pursuant to that
certain written/verbal lease (the "Tenant Lease"); and
V. WHEREAS, the Tenant Lease provides that Seller may terminate said
contract, with or without cause, by giving 30-days written notice to the Tenant;
and
VI. WHEREAS, Purchaser has not and will not assume the ALF Contracts or
the Tenant Lease and requires Seller to terminate the ALF Contracts and Tenant
Lease as a condition to effectuating Purchaser's acquisition of the Project (the
"Closing"); and
VII. WHEREAS, Purchaser and Seller do not wish to delay the Closing
pending the expiration of (a) the 45-day notice and termination for the ALF
Contracts, and (b) the 30-day notice and termination period for the Tenant
Lease, but rather, have agreed to escrow a portion of the Twelve Million
($12,000,000) Dollar purchase price being paid by Purchaser to Seller as
consideration for the Project (the "Purchase Price").
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WHEREAS, Seller will lease back from Purchaser (until the Turnover
Date) for the total rent of $1.00 any portion of the Project not delivered to
Purchaser on the Closing Date.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Borrower hereby agrees
as follows:
1. RECITALS. The aforementioned recitals are true and correct and by
this reference incorporated herein.
2. REPRESENTATIONS OF THE SELLER. The Seller represents and warrants to
the Purchaser that, as of the Closing Date:
(a) Owner is a limited partnership duly organized under the
laws of the State of Florida and ALF Operator is corporation duly
organized and in good standing under the laws of the State of Florida.
The sale of the Project and the execution and delivery of this
Agreement and all other documents and instruments of conveyance and/or
related to the sale of the Project (the "Seller's Documents") by the
signatories hereto on behalf of Seller have been duly authorized by
Seller, and are binding on Seller and enforceable against Seller in
accordance with there respective terms. No consent to such execution,
delivery and performance is required from any joint venturer, creditor,
investor, judicial or administrative body, governmental authority or
other party other than any such consent which already has been
unconditionally given. Neither the execution of any of the Seller's
Documents nor the consummation of the sale of Project will violate any
restriction, court order or agreement to which Seller or the Project is
subject.
(b) Seller is not prohibited from (i) executing or delivering
this Agreement or any other Seller's Document, (ii) complying with the
terms of this Agreement, or (iii) consummating the transactions
contemplated by this Agreement or any other Seller's Document by any
applicable governmental requirement, agreement, instrument,
restriction, or by a judgment, order or decree of any governmental
authority having jurisdiction over Seller or Seller's properties.
(c) There are no attachments, executions, assignments for the
benefit of creditors, receiverships, conservatorship or voluntary or
involuntary proceedings in bankruptcy or pursuant to any other debtor
relief laws contemplated or filed by Seller or pending against Seller
or the Project.
(d) Neither Owner nor ALF Operator is a "foreign person" but
is a "United States person" as such terms are defined in Sections 1445
and 7701 of the Internal Revenue Code of 1986, as amended (the "Code");
that is to say, each is a citizen or resident of the United States, a
domestic partnership, a domestic corporation, or an estate or trust
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which is not a foreign estate or foreign trust within the meaning of
Section 7701 (a)(3 1 ) of the Code.
(e) There is no suit, action, legal or other proceeding
pending, or to Seller's best knowledge, threatened, which affects the
Project.
(f) Except for the road widening of Biscayne Boulevard, which
proceeding commenced approximately two years ago, Seller has not
received any notice of any condemnation or similar proceedings having
been instituted or threatened against the Project or any part thereof.
(Seller shall be entitled to all condemnation awards from such road
widening even after the termination of this Agreement.)
(g) That there are no oral or written leases, tenancies or
other rights of occupancy or use for all or any portions of the Project
except for the Land Lease, the Tenant Lease and the ALF Contracts.
(h) To the best of Seller's knowledge and based on the certain
Phase I Environmental Site Assessment dated March 1997 prepared by
Environmental Consulting and Technology, Inc. (the "Report"), the
Project is presently free from contamination by or the presence of
Hazardous or Toxic Materials, and the Project and the activities
conducted thereon do not pose any significant hazard to human health or
the environment, or violate any applicable federal, state or local
laws, ordinances, rules, regulation or requirements pertaining to
Hazardous or Toxic Materials or industrial hygiene or environmental
conditions ("Environmental Laws"). "Hazardous or Toxic Materials"
includes but is not limited to (i) materials defined as "Hazardous
Waste" under the Federal Resource Conservation and Recovery Act and
similar state laws, and (ii) "hazardous substances" as identified under
the Federal Comprehensive Environmental Response, Compensation and
Liability Act and especially in CERCLA 101(14) and as set forth in
Title 40, Code of Federal Regulations, Part 302, and (iii) those
elements or compounds which are contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency
(EPA) and the list of toxic pollutants designated by Congress or the
EPA or defined by any Federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous,
toxic, polluting, or dangerous waste, substance or material, as such
lists are now or at any time hereafter in effect, and (iv) asbestos,
and (v) radon, and (vi) polychlorinated biphenyls, and (vii) petroleum
products, and (viii) such other materials, substances or waste which
are otherwise dangerous, hazardous, harmful or deleterious to human,
plant or animal health or well being.
(j) That there are no oral or written leases, tenancies or
other rights of occupancy or use for all or any portions of the Project
except for the Land Lease, the Tenant Lease and the ALF Contracts.
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(k) In regards to the Land Lease, the Seller represents to the
best of Seller's knowledge as follows:
(i) That the copy of the Land Lease (which
consisted of only those documents described
in Section 1(a) of this Agreement) provided
by Seller to Purchaser is true, correct and
complete, including all amendments; and
(ii) That based upon the fact that Seller has
paid the rent and the real estate taxes, has
maintained insurance and has not received
notice from the landlord of any default, the
Land Lease can be assigned by Seller to
Purchaser without the consent of the
landlord under the Land Lease or any other
party; and
(iv) That the Land Lease is in good standing and
Seller, as tenant, has not received notice
of default from landlord, and the landlord
under the Land Lease has not defaulted or,
to the best of Seller's knowledge, taken any
action or failed to take any action that
would result in a default by them under the
Land Lease; and
(v) That the security deposit paid by the Seller
to the landlord under the Land Lease is
$0.00
(l) That Seller has not granted anyone any right, title or
interest, including but not limited to, rights of first refusal,
options or use rights with respect to or affecting the Project.
(m) All the ALF Contracts are in form and content
substantially the same as the Form Contract and each ALF Contract
allows Seller to terminate said contract (1) without cause upon 45-days
written notice to the applicable Resident; and (2) without the payment
of any termination fee or any other cost, payment or expense.
(n) Other than the ALF Contracts, the Tenant Lease and
agreements for pest control (verbal, month to month) and elevator
servicing, there exist no service contract, maintenance arrangements,
warranties, guaranties, licenses, bonds or any other agreements related
to the Project or the ALF.
The phrases "to the best of Seller's knowledge" or "to Seller's best knowledge",
as utilized in herein or otherwise in this Agreement, shall mean the actual
knowledge of all partners, officers, directors and management officials of
Seller.
3. SELLER COVENANTS. In addition to Seller's other agreements and undertakings
under the Seller's Documents, Seller, at Seller's sole cost and expense, hereby
covenants and agrees with the Purchaser that from and after the Closing Date,
Seller:
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(a) shall by midnight, April 29, 2004 (the "Turnover Date")
cease operation of the assisted living facility located on a portion of
the Project (the "ALF") and any and all other operations, facilities
and business on the Project.
(b) shall vacate the ALF and deliver complete and absolute
possession to Purchaser by the Turnover Date of the ALF and any portion
of the Project not previously delivered to Purchaser on the Closing
Date.
(c) shall by the Turnover Date cause the Tenant Lease to be
terminated and deliver complete and absolute possession of the Tenant
Leasehold Premises to Purchaser.
(d) shall deliver possession of the ALF, the Tenant Leasehold
Premises, and any portion of the Project not previously delivered to
Purchaser on the Closing Date, free and clear of (i) any clams of any
Resident, Tenant, or other persons whatsoever; (ii) any mechanics'
liens or claims for outstanding for labor or materials incident to the
construction, repairing, renovating or improving of the ALF, the
Project, the Tenant Leasehold Premises or any portions thereof by
Seller or Seller's agents; and (iii) any cautionary notices of any kind
that may have been served with respect to labor performed or materials
furnished upon the Project.
(e) shall maintain the Tenant Leasehold Premises and all other
portions of the Project not previously delivered to Purchaser on the
Closing Date in the same condition as of the date hereof, subject to
normal wear and tear.
4. ESCROWED FUNDS.
(a) ▇▇▇▇▇▇ & ▇▇▇▇, P.A., as escrow agent (the "Escrow Agent")
shall hold, release and disburse pursuant to the terms of this
Agreement the sum of $250,000.00 (the "Escrowed Funds").
(b) In the event of a Seller breach of any of its covenants or
obligations under Section 3 hereof, Purchase shall have the right, but
not the obligation, to remedy such Seller's breach; provided, however,
that if Seller has commenced and is using diligent efforts to comply
with Seller's covenants and obligations under Section 3 hereinabove,
Purchaser shall, upon Seller's written request, grant Seller a 15 day
extension/grace period from the Turnover Date within which Seller shall
fully comply with Seller's covenants and obligations under Section 3
hereinabove, prior to being entitled to make any claim to the Escrowed
Funds. In the event that Seller does not timely comply with its
covenants or obligations under Section 3 hereof, the Escrowed Funds,
upon Purchaser written instructions to the Escrow Agent and notice to
Seller, shall be forwarded to Purchaser to apply towards (i) any cost
incurred by Purchaser in remedying Seller's breach of, or (ii) damage
suffered by Purchaser due to Seller's breach of, Seller's covenants or
obligations under Section 3 hereof.
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(c) Upon written instruction from Purchaser confirming
Seller's compliance with the terms of this Agreement, the Escrow Agent
shall release the Escrowed Funds, or the balance thereof, to Seller,
whereupon this Agreement shall be terminated and the parties further
obligations hereunder shall be released, unless specifically provided
otherwise. Upon full compliance with Seller's covenants and obligations
under Section 3 hereof, Seller shall provide written notice thereof to
Purchaser and Escrow Agent. Should Escrow Agent not receive written
notice from Purchaser by the end of ten (10) days after the Escrow
Agent's and Purchaser's receipt of Seller's notice, it shall be
presumed that Seller has satisfied its obligations under Section 3, and
the Escrowed Funds shall promptly thereupon be released to Seller.
(d) If there is any dispute as to whether the Escrow Agent is
obligated to deliver any monies, and/or documents which it holds or as
to whom said monies and/or documents are to be delivered, the Escrow
Agent shall not be obligated to make any delivery, but, in such event,
may, in its sole and absolute discretion, hold same until receipt by
the Escrow Agent of an authorization, in writing, signed by all the
parties having an interest in such dispute directing the disposition of
same; or, in the absence of such authorization, the Escrow Agent may
hold said monies and/or documents until the final determination of the
rights of the parties in an appropriate proceeding. The Escrow Agent
may rely on any writing signed or purported to be signed by or on
behalf of any party without independent investigation on the part of
the Escrow Agent to determine the authenticity of such writing. If such
written authorization is not given or proceeding for such determination
not begun and diligently continued, the Escrow Agent may bring an
appropriate action or proceeding for leave to deposit said monies
and/or documents in court, pending such determination. In the event
that the Escrow Agent places the monies and/or documents that have
actually been delivered to the Escrow Agent in the Registry of the
Circuit Court in and for Miami-Dade County, Florida and files an action
of interpleader naming the parties hereto, the Escrow Agent shall be
released and delivered from any and all further obligation and
liability hereunder or in connection herewith. In the event of any such
delivery of monies and/or documents by the Escrow Agent into said
Registry of the Circuit Court, the Escrow Agent shall be authorized to
represent any party to this Escrow Agreement, as the case may be, with
respect to any litigation, and in this regard, each party expressly
consents and shall not object to such representation. However, in no
event shall Escrow Agent withhold payment of the Escrowed Funds or
interplead the Escrowed Funds for any alleged violation of the
Agreement or any reason other than noncompliance with this Escrow
Agreement.
(e) The parties hereto hereby release the Escrow Agent from
all liability concerning this Escrow Agreement, absent bad faith or
fraud, and upon making delivery of the monies and/or documents which
the Escrow Agent holds in accordance with the terms of this Escrow
Agreement, the Escrow Agent shall have no further liability except for
liabilities arising prior to such delivery. The parties hereto hereby
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jointly and severally indemnify and hold the Escrow Agent harmless from
any and all damages or losses arising hereunder or in connection
herewith including, but not limited to, all costs and expenses incurred
by the Escrow Agent in connection with the filing of such action
including, but not limited to, reasonable attorneys' fees for the
Escrow Agent's attorneys through all trial and appellate levels, except
in the case of the Escrow Agent's bad faith or fraud. The Escrow Agent
shall receive no fee or compensation for acting as the Escrow Agent
with respect to the transactions contained herein. However, nothing
herein shall preclude the Escrow Agent from representing a party and
receiving legal fees for such representation.
5. INDEMNIFICATION. Seller hereby indemnifies, and agrees to defend and save and
hold Purchaser and its directors, officers, employees, agents, successors and
assigns harmless from and against any and all losses, liabilities (including,
without limitation, strict liability and common law liability), obligations,
damages (including, without limitation, all foreseeable consequential damages to
any person or entity including third parties), injuries, defenses, charges,
penalties, interest, expenses, fees (including attorney's fees at all
administrative and judicial hearing, trial and appellate levels), costs
(including without limitation, costs of any settlement), judgments,
administrative or judicial proceedings and order, claims and demands of any and
every kind whatsoever paid, incurred or suffered by, or asserted against,
Purchaser by any person or entity or governmental agency or body for, with
respect to, related to, arising out of, or as a direct or indirect result of, in
whole or in part, (A) Seller's violation of any Environmental Laws applicable to
the Project or from Seller's use, generation, release, treatment, discharge,
emission, escape, seepage, leakage, spillage, handling, storage, transportation,
disposal, clean-up or presence at, on or under the Project or adjacent property,
or to the soil, air or to surface or ground water thereat, of any hazardous or
toxic materials; (B) Seller's operation and/or closing of the ALF; or (C)
Seller's breach of any representation, warranty, condition, term or covenant set
forth in this Agreement. All sums paid and costs incurred by Purchaser with
respect to the foregoing matters shall bear interest at the highest applicable
legal rate. This indemnification shall survive the termination and/or expiration
of this Agreement.
6. COLLATERAL ASSIGNMENT. The parties agree that Purchaser's rights and benefits
under this Agreement and Purchaser's rights in and to the Escrowed Funds, may be
collaterally assigned to Wachovia Bank, National Association (the "Bank") as
security for a loan from the Bank to Borrower. The Seller hereby consents to
that collateral assignment and will recognize the Bank's rights thereunder,
provided, however: (i) the Bank shall not be entitled to any right in and to the
Escrowed Funds other than Purchaser's rights thereto as set forth in this
Agreement; and (ii) Escrow Agent's obligations to release the Escrowed Funds
shall be as set forth herein and shall not be subject to any further obligations
or conditions imposed by the Bank; and (iii) the Bank may not take or otherwise
perfect a security interest in and to the Escrowed Funds or the account in which
they are placed unless and until the Escrowed Funds become the Property of
Purchaser hereunder.
7. FURTHER ASSURANCES AND BEST EFFORTS. The parties agree to perform whatever
further acts as are reasonable and necessary, in order to carry out the intent
and purpose of this Agreement. Purchaser and Seller shall (i) take all steps
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necessary or desirable, (ii) use their best efforts and (iii) cooperate with
each other in every reasonable way to carry out the intent and purpose of this
Agreement.
7. SEVERABILITY. If any provision or obligation under this Agreement shall be
determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, that provision shall be deemed severed from this Agreement and
the validity, legality and enforceability of the remaining provisions or
obligations shall remain in full force as though the invalid, illegal or
unenforceable provision had never been a part of this Agreement.
8. SUCCESSORS IN INTEREST. This Agreement and the terms, covenants, and
conditions herein contained shall be binding upon and inure to the benefit of
the heirs, successors and assigns of the parties hereto.
9. ATTORNEYS' FEES. In any litigation, including breach, enforcement or
interpretation, arising out of this Agreement the prevailing party shall be
entitled to recover from the non-prevailing party reasonable attorney's fees,
costs and expenses.
10. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of Florida, except to the
extent preempted by federal law. Seller and all persons and entities in any
manner obligated to Purchaser under this Agreement consent to the jurisdiction
of any federal or state court within the State of Florida having proper venue
and also consent to service of process by any means authorized by state or
federal law.
11. MISCELLANEOUS.
(a) The captions utilized in this Agreement are for
convenience only and shall not limit or define the provisions of any paragraph
or section hereof.
(b) THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY PROCEEDING
OR ACTION RELATING TO THIS AGREEMENT.
(c) Seller acknowledges that any waiver of any specific items
required herein by Purchaser shall not be deemed a waiver of any other items
required herein by Seller.
12. LEASE. Seller shall lease back the portion of the Project not
delivered to Purchaser on the Closing Date until the Turnover Date for the total
rental of $1.00. Seller at its option may vacate its space at any time after the
last resident leaves the Project. At closing, all utilities for the North
Building of the Project will be placed in Purchaser's name. Seller will
reimburse Purchaser for one-half of the utility costs for the North Building
(other than telephones for which Seller will pay directly) until such time that
the last resident vacates the Project. Seller has advised Purchaser that it has
a security deposit with FPL. If FPL allows the deposit to be assumed by
Purchaser, Purchaser will thereupon reimburse Seller for such deposit.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Signed, sealed and delivered in the presence of:
_____________________________ 11190 BISCAYNE, LLC, a Florida
Print Name: ___________________ limited liability company
By: SFBC INTERNATIONAL, INC.,
a Florida corporation
Its: Sole Member
_____________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Print Name: ___________________ Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO
WILLIAMSBURG RETIREMENT INVESTORS,LTD.,
a dissolved Florida Limited partnership
______________________________
Print Name: ___________________ By: Williamsburg Retirement Living, Inc.,
A Florida corporation
______________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Print Name: Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
____________________________ WILLIAMSBURG RETIREMENT
Print Name: LIVING, INC., a Florida corporation
____________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Print Name: Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
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EXHIBIT "A"
FEE LAND:
The part of the S 1/2 of Tract "A" of Revised Plat of SEARENTO, according to the
plat thereof, recorded in Plat Book 34, at Page 21, of the Public Records of
Miami-Dade County, Florida, described as follows:
Beginning at a point on the West line of Biscayne Boulevard which point is 55.07
feet West of the Center line of Biscayne Boulevard and 50 feet South of the NE
Corner of said S 1/2 of Tract "A" of SEARENTO, thence run West parallel with and
45.40 feet South of the North line of the said S 1/2 of Tract "A" a distance of
794.41 feet to the West line of the said S 1/2 of Tract "A"; thence run South
and along the West line of said S 1/2 of Tract "A" of SEARENTO a distance of
119.65 feet to the SW Corner of said S 1/2 of Tract "A" of SEARENTO; thence run
East and along the South line of said S 1/2 of Tract "A" to the West line of
Biscayne Boulevard; thence run Northeasterly and along the West line of Biscayne
Boulevard a distance of 131.73 feet more or less to the point of beginning.
ALSO
Beginning at a point 825 feet South of the NW corner of the S 1/2 of the NE 1/4
of Section 32, Township 52 South, Range 42 East, said point also being the SW
Corner of the S 1/2 of Tract "A" of SEARENTO according to the revised plat
thereof, recorded in Plat Book 14, at Page 21 of the Public Records of Dade
County, Florida; thence run South along the West line of the S 1/2 of the NE 1/4
of Section 32, Township 52 South, Range 42 East a distance of 47.4 feet; thence
run East parallel with and 47.4 feet South of the South line of said S 1/2 of
Tract "A" of SEARENTO a distance of 717.90 feet more or less to the West line of
Biscayne Boulevard which said point on the West line of Biscayne Boulevard is
55.05 feet West of the center line of Biscayne Boulevard; thence run
Northeasterly and along the West line of Biscayne Boulevard 53.09 feet to the SE
Corner of the S 1/2 of Tract "A" of SEARENTO; thence run West and along the
South line of said S 1/2 of Tract "A" of SEARENTO to the SW Corner of said S 1/2
of Tract "A" of SEARENTO, being the point of beginning; said tract of land being
in the S 1/2 of the NE 1/4 of Section 32, Township 52 South, Range 42 East,
Less: that portion of property conveyed to Miami-Dade County by Deed recorded in
Official Records Book 9031, Page 1929.
LEASEHOLD LAND:
West 3 acres of South 2.5 chains of North 5 chains of South Quarter (S 1/4) of
Northeast Quarter (NE 1/4) of Section 32, Township 52 South, Range 42 East, more
particularly described as follows: Beginning at the south-west corner of the
northeast quarter (NE 1/4) of Section 32, Township 52 South, Range 42 East;
thence North 330 feet for the Point of Beginning; thence East 708.8 feet to the
center of the road known as the East ▇▇▇▇▇ Highway; thence Northeasterly along
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the center of said highway to a point 165 feet north of the south line of this
property, if produced easterly, thence West 781.45 feet to the West boundary
line of the Northeast Quarter (NE 1/4) of Section 32, Township 52 South, Range
42 East; thence South 165 feet to the Point of Beginning, situate in Miami-Dade
County, Florida; Less the Southerly 35 feet reserved for right-of-way for
Biscayne Boulevard, and also less portions conveyed to Miami-Dade County, by
Deeds recorded in Official Records Book 9031, Page 1927 and in Official Records
Book 9031, Page 1931.
And also less:
The Southeasterly 4.572 meters (15.00 feet) of the South one-half (S 1/2) of the
North one-half (N 1/2) of the South one-quarter (S 1/4) of the Northeast
one-quarter (NE 1/4) of Section 32, Township 52 South, Range 42 East, Miami-Dade
County, Florida, lying Northwesterly of and adjoining the Northwesterly
right-of-way line of Biscayne Boulevard/State Road 5, according with a 10.668
meter (35.00 feet) right-of-way dedication by the City of Miami reserved in Deed
Book 1631, Page 178, of the Public Records of Miami-Dade County, Florida.
12
EXHIBIT "B"
WILLIAMSBURG RETIREMENT LIVING, INC.
A LICENSED ASSISTED LIVING FACILITY
-----------------------------------
ADMISSION AND FINANCIAL AGREEMENT
---------------------------------
This Agreement is made by and between WILLIAMSBURG RETIREMENT LIVING, INC. (the
"ALF") and _________________________________ ("Resident") and
_______________________(1) ("Responsible Party"), who resides at:
________________________________________. (The Resident and the Responsible
Party are also referred to singly or collectively as "You" and "Your").
RECITALS
A. You have applied for accommodations at the ALF and the ALF has
accepted Your application.
B. The ALF is licensed by the State of Florida as an "Assisted
Living Facility." The ALF is not affiliated with a religious
organization.
C. This Agreement is a month-to-month agreement that can be
terminated as provided in Section V.
AGREEMENTS
I. ADMISSION
This Agreement is Your resident contract to occupy a room at Williamsburg
Retirement Living, Inc. In order for You to move into this facility, You must
provide us with a certificate of health from Your physician. He/she must be a
Medical Doctor or a Nurse Practitioner duly and currently licensed in the State
of Florida, stating that You are capable of residing in an assisted living
facility. This medical information about You is preferably requested on DOEA/ALF
Form 1823. The exam should be done within 60 days prior to admission, but no
later than 30 days after admission.
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(1) Please indicate "N/A" if there is no Responsible Party other than the
Resident.
You must, as of the date of this Agreement and at all times during Your
occupancy of Your room be qualified as an eligible resident under:
Chapter 400, Florida Statutes, under the rules and regulations of the Agency of
Health Care Administration of the State of Florida, and that of our "Admission,
Retention & Discharge" Policy Number 800. (Copy of our Policy #800 is included
in Your admission packet.)
YOU AGREE THAT AT ANY TIME (INCLUDING AFTER YOUR ADMISSION TO THE FACILITY), IF
THE RESIDENT AND/OR THE RESPONSIBLE PARTY LEARN OF ANY FACTS WHICH MAY MAKE YOU
NOT QUALIFIED AS AN ELIGIBLE RESIDENT FOR THIS FACILITY, YOU WILL IMMEDIATELY
NOTIFY THE ALF'S ADMINISTRATOR OF SUCH FACTS.
Upon determination by the ALF's Administrator or Your health care provider that
You need services beyond those this facility is licensed to provide, You, or the
agency acting on Your behalf, will be notified in writing that You must make
arrangements for transfer to a care setting that has services needed by You. In
the event that You have no person to represent You, the ALF will refer You to a
social service agency for placement.(2)
II. SERVICES, SUPPLIES AND ACCOMMODATIONS
In addition to providing You with an adequately furnished room and bed linens,
the ALF shall render the following services to You, subject to the other terms,
limitations, and conditions contained in this Agreement:
1. Three (3) full service meals per day and snacks.
2. Daily Housekeeping.
3. Laundry and Linen Service.
4. Supervision of self-administered oral medications.
5. Assistance with arranging appropriate appointments for health services
to include: Arrangements for transportation for medical, dental, or
mental health services as needed by Resident.
6. Schedule of social and leisure activities.
7. House phone service.
8. Private visiting area for family and friends.
9. Twenty-four (24) hour staff.
EXCLUDED SERVICES: Except as otherwise stated in this Agreement, You are
responsible for furnishing or paying for any of Your health and medical care
services, including, without limitation, hospital services, physicians'
services, nursing services including skilled nursing facility charges, private
duty personnel, medications, vitamins, eye glasses, eye examinations, hearing
(2) If there is disagreement regarding the appropriateness of placement,
provisions as outlined in Chapter 400.426(8) of the Florida Statutes,
shall take effect.
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aids, ear examinations, dental work, dental examinations, orthopedic appliances,
laboratory tests, x-ray services, or rehabilitative therapies.
MEDICATIONS: Medications will be handled in accordance with Policy Number 802
"Medication Storage" given to Resident and/or Responsible Party in the admission
packet.
RESIDENT, GUARDIAN OR RESPONSIBLE PARTY DO HEREBY RELEASE AND HOLD HARMLESS THIS
ALF FROM ANY CLAIMS FOR INJURIES OR DAMAGES RESULTING FROM MEDICATES TAKEN BY
THE RESIDENT, WHILE NOT UNDER THE SUPERVISION BY THE STAFF OF THE ALF.
III. RATES AND TERMS
1. This agreement gives the Resident the right to occupy a room for a
monthly fee of $_____________________ (the "Monthly Fee"). The Monthly
Fee must be paid in advance by the Resident and/or Responsible Party on
the first (1st) of each month so that the Room may be reserved for that
month. A late charge of fifty dollars ($50) shall be assessed if the
fee is not paid within five (5) days of the due date. Your rights to
occupy and use Your Room and to receive other services under this
Agreement are contingent upon Your timely payment of the Monthly Fee.
2. The ALF shall have the right, upon 30 days prior written notice to You,
to change Your Monthly Fee and other fees and charges.
3. The first thirty (30) days of this Agreement are a trial period. If at
any time during this trial period the ALF feels that You are not
appropriate for our facility, You will be charged on a pro-rated basis.
During this trial period, should You decide to vacate the facility,
Your first Monthly Fee will be forfeited.
4. It is the policy of the ALF to Hold the Room bed when the Resident is
out of the ALF as long as the rent is paid and until the ALF receives a
written notice to release the bed and all personal belongings have been
removed from the ALF. You are responsible for paying Your Monthly Fee
even when You are absent from Your Room or the ALF, including, but not
limited to, times when You are on vacation or when You have been
transferred temporarily to a skilled nursing facility, or if You have
been transferred to an outside health care facility such as a hospital.
You are not entitled to any discount from Your Monthly Fee during such
absences. Notwithstanding, the Resident must inform the ALF
administration and staff of their intended temporary absence from the
facility.
5. You MAY NOT let anyone else move into his or her room or share any
portion of the room without the consent of the Administrator.
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IV. ADDITIONAL CHARGES
The following is a list of charges that will be itemized on Your statement when
they occur, They are due with each Monthly Fee.
1. Over the counter medications not covered by Your insurance.
2. Adult diapers for incontinence.
3. Transportation services not covered by Your insurance.
4. Long distance phone calls, general store charges and/or beauty/▇▇▇▇▇▇
shop services.
5. Guest meals.
6. Any charges for replacement fees of any ALF property as per ALF Policy
Number 805 "Resident Policies & Procedures" included in Your admission
packet.
V. TERMINATION OF THIS AGREEMENT
A. BY YOU
You may terminate this Agreement at any time, with or without cause, by
giving thirty (30) days written notice to the ALF through the ALF's
Administrator. Your notice must identify the date when the termination
is to become effective, which date must be at least thirty (30) days
after the date of the notice. It is the policy of the ALF to Hold the
Room bed when the Resident is out of the ALF as long as the rent is
paid and until the ALF receives a written notice to release the bed and
all personal belongings have been removed from the ALF.
In addition, if You are transferred permanently to an outside facility
because You need a higher level of care than that available at the ALF,
You may terminate this Agreement immediately upon Your vacating Your
Room and removing all Your belongings from it. In such a case, if You
are readmitted to live in the ALF within 60 days of such a termination,
You will be deemed to have rescinded your termination of this
Agreement, and this Agreement shall remain in full force as if it had
never been terminated, and You will continue to be bound by every term
herein.
B. BY THE ALF
The ALF may terminate this Agreement at any time, with or without
cause, by giving forty-five (45) days written notice to the Resident.
In addition, it is the policy of the ALF to terminate for reasons
including, but not be limited to the following: Your failure to pay the
Monthly Fee or additional charges for services You have requested
within five (5) days of the due date; Your failure to comply with State
or local law after receiving written notice of the alleged violation;
Your failure to comply with the ALF's Rules and Regulations as set
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forth herein and in the admissions packet; a change in the use of the
ALF; or a finding by the ALF that the ALF is inappropriate for Your
care.
NOTWITHSTANDING THE FOREGOING, THE ALF MAY IMMEDIATELY TERMINATE THIS
AGREEMENT AT ANY TIME WITHOUT ANY PRIOR NOTICE BY GIVING YOU WRITTEN
NOTICE IF YOU ARE ENGAGING IN BEHAVIOR WHICH IS A THREAT TO THE MENTAL
AND/OR PHYSICAL HEALTH OR SAFETY OF YOU, OR IS OFFENSIVE, HARMFUL, OR A
POTENTIAL THREAT TO THE OTHERS IN THE ALF.
During the notice periods described in Paragraphs A and B of this
Section, this Agreement shall remain in full effect.
This Agreement shall terminate automatically upon Your death. The
Monthly Fee shall be due and payable and remain the property of the
ALF, and Your estate shall be charged for unpaid bills. The full
Monthly Fee will be charged for the time until the Room is vacated and
cleared of all personal belongings.
VI. VACATING ROOM AND REFUND POLICY
Upon termination of this Agreement under Section V above, You or Your
estate shall vacate Your Room, remove all of Your belongings from it,
and return all Your keys to the ALF. Until Your Room is vacated and all
Your property is removed from Your Room, You or Your estate shall
remain liable for the Monthly Fee. Once Your Room has been vacated, the
ALF may remove any of Your remaining belongings and store them at the
expense of You or Your estate. When Your Room has been vacated and all
Your property has been removed from the ALF, Your Monthly Fee
obligation will terminate. If Your Room is vacated and all Your
property has been removed prior to the end of the Rental Month, You or
Your estate will be entitled to a refund, which will be paid within 45
days, of any advance payment on a pro-rata basis, less the cost of
moving, storage, and repairs or replacement that the ALF is entitled to
charge You or Your estate under Section X below.
VII. RELEASE FROM OBLIGATIONS
Any termination of this Agreement shall terminate the ALF's obligation to
furnish accommodation and services to You. Upon payment of any refund provided
for above, the ALF shall be discharged from any further monetary obligations to
You under this Agreement.
VIII. AUTHORIZATIONS
Resident and Responsible Party hereby expressly authorize ALF to:
1. Assist in obtaining the services of a physician for Resident if a
personal physician is not available, and to obtain emergency medical
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services when required. In case of emergency and if Resident's personal
physician is not available, the house physician will be called to care
for Resident The Resident and or Responsible Party is responsible for
all charges and expenses incurred by the ALF in procuring and providing
this additional care if the Resident's insurance does not cover fees.
ALF will make the nature and extent of these services and their
expenses known to Resident and/or Responsible Party prior to their
introduction as soon as possible except in case of an emergency.
2. Arrange for prompt transfer of the Resident to a hospital upon
physician's orders. The ALF will notify Responsible Party noted on the
Resident's demographic face sheet of transfer.
3. Utilize the Resident's picture for medical/material purposes if
necessary.
4. Move the Resident from room to room for reasons involving compatibility
or changes in Resident status.
5. Procure skilled home health services when the attending physician deems
it necessary for the Resident's health and well being.
IX. GRIEVANCES
Prompt consideration will be given to all complaints/grievances from all
Residents and/or their families with documentation to substantiate an action,
All complaints will be resolved within twenty-fours (24) hours and a verbal or
written response to all complaints will be provided to explain the
complaint/grievances investigation findings and decision rendered to date.
X. PROPERTY OF ALF
A. NO TENANCY INTEREST OR MANAGEMENT RIGHTS
This Agreement gives You the right to live in the ALF and to have as
much freedom and choice regarding Your life here as possible. However,
it does not give You the rights of a "tenant" as state law defines that
term. The ALF reserves the sole right to provide management of the ALF
in the best interests of all Residents and reserves the right to manage
or make all decisions concerning the admission, terms of admission or
dismissal of other Residents consistent with state law.
B. LIABILITY FOR DAMAGE
You agree to maintain Your Room in a clean, sanitary and orderly
condition. You shall reimburse the ALF for the repair to Your Room and
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for the repair or replacement of furnishings and fixtures owned by the
ALF in Your room above and beyond ordinary wear and tear. In addition,
You shall reimburse the ALF for any loss or damage to the ALF's real or
personal property outside of Your Room caused either intentionally or
negligently by You or by persons on the premises with Your permission.
XI. PROPERTY OF RESIDENT
The ALF is not responsible for loss of any property belonging to You
due to theft or any other cause. You may wish to purchase insurance in
the event of damage to Your property or the loss of Your property. It
is not our practice to hold property for safekeeping and property shall
not be considered held in trust unless a written receipt has been given
to Resident or Responsible Party.
XII. ADDITIONAL RELEASE
YOU ACKNOWLEDGE THAT THE ALF IS NOT A "LOCKED DOORS" FACILITY, AND AS SUCH YOU
ARE FREE TO COME AND GO FROM THE FACILITY AS YOU PLEASE. THE ALF CANNOT BE
RESPONSIBLE FOR YOUR SAFETY AND WELL BEING SHOULD YOU VENTURE OUTSIDE THE
FACILITY ON YOUR OWN.
BY SIGNING THIS AGREEMENT YOU AGREE TO RELEASE AND HOLD HARMLESS THE ALF FROM
ANY CLAIMS FOR INJURIES OR DAMAGES SUSTAINED WHILE YOU ARE OUTSIDE THE FACILITY.
FROM TIME TO TIME THE ALF WILL PROVIDE TRANSPORTATION TO ACTIVITIES LOCATED IN
AND AROUND THE GREATER MIAMI AREA. IN ORDER FOR YOU TO BE TRANSPORTED AND
PARTICIPATE IN THESE ACTIVITIES, ALF REQUIRES THAT YOU RELEASE IT FROM ALL
LIABILITY FROM ANY CLAIMS FOR INJURIES AND/OR DAMAGES SUSTAINED WHILE YOU ARE
BEING TRANSPORTED TO AND FROM, OR ARE PARTICIPATING IN THESE ACTIVITIES. BY
SIGNING THIS AGREEMENT, YOU AGREE TO RELEASE AND HOLD HARMLESS ALF FROM ANY
CLAIMS FOR INJURIES AND/OR DAMAGES SUSTAINED WHILE YOU ARE BEING TRANSPORTED, OR
ARE PARTICIPATING IN ANY OFF PREMISES ACTIVITY.
XIII. INCOMPETENCY
In the event You become legally incompetent or are unable to properly care for
Yourself or Your property, and in the event that You have made no other
designation of a person or legal entity to serve as Your guardian or
conservator, You hereby grant authority to the ALF to apply to a court of
competent jurisdiction for the appointment of a conservator or guardian.
XIV. WAIVER OF ONE BREACH NOT A WAIVER OF ANY OTHER
The failure of the ALF in one or more instances to insist upon the strict
performance, observance or compliance by You with any of the terms and
conditions of this Agreement, shall not be construed to be a waiver or
relinquishment by the ALF of its right to insist upon strict compliance by You
with all of the terms and provisions of this Agreement.
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XV. ASSIGNMENT. You may not assign this Agreement.
XVI. SEVERABILITY
If any provision of this Agreement is determined by a court of competent
jurisdiction to be unenforceable, this Agreement shall be read as if such
unenforceable provision were not included and all other provisions of this
Agreement shall continue in full force and effect.
XVII. ARBITRATION AGREEMENT
IT IS HEREBY AGREED AND UNDERSTOOD THAT ANY CONTROVERSY OR CLAIM RELATING TO
THIS AGREEMENT, THE BREACH THEREOF, OR RELATING TO THE RENDERING OF CARE BY THE
ALF TO YOU, INCLUDING, BUT NOT LIMITED TO ANY CLAIMS FOR NEGLIGENCE, WRONGFUL
DEATH OR VIOLATIONS OF RESIDENT'S RIGHTS, SHALL BE SETTLED BY NEUTRAL BINDING
ARBITRATION IN ACCORDANCE WITH THE RULES OF AMERICAN ARBITRATION ASSOCIATION,
AND NOT BY ANY COURT ACTION EXCEPT AS PROVIDED BY FLORIDA LAW FOR JUDICIAL
REVIEW OF ARBITRATION PROCEEDINGS.
ANY COURT HAVING APPROPRIATE JURISDICTION MAY ENTER JUDGMENT UPON THE AWARD
RENDERED BY THE ARBITRATOR(S). FILING A JUDICIAL ACTION TO ENABLE THE RECORDING
OF A NOTICE OF PENDING ACTION, FOR ORDER OF ATTACHMENT, RECEIVERSHIP, INJUNCTION
OR OTHER PROVISIONAL REMEDIES SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT TO
ARBITRATE UNDER THIS PARAGRAPH.
ANY CLAIMS OR DISPUTES WITH OR AGAINST INDIVIDUALS EMPLOYED BY OR ASSOCIATED
WITH THE ALF SHALL ALSO BE SUBMITTED TO ARBITRATION UNDER THIS PROVISION.
________________________________________________________________________________
________________________________________________________________________________
I (we) hereby acknowledge that I (we) have read this entire seventeen paragraph
Agreement and understand and agree to all of the terms set forth herein,
including but not limited to the various releases and the arbitration clause. I
(we) also acknowledge that if we lack proficiency in the English language, we
have requested, and have received a Spanish translation of the terms of this
Agreement.
Yo (nosotros) por medio de mi firma testifico que he leido todo este contrato.
Este contrato/acuerdo tiene diez y siete clausulas con las cuales estoy de
acuerdo. Entiendo todos los terminos aqui mencionados, incluyendo la clausula de
arbitracion y los relevos aqui mencionados. Yo (nosotros) tambien estamos
informados que si no entendemos todo este contrato, hemos pedido que nos los
expliquen en Espanol, y que hemos recibido una explicacion de todos los terminos
aqui incluidos.
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I (we) further acknowledge that the Resident and the Responsible Party, if any,
have made the above promises and representations in order to induce the ALF to
enter this contract, and the Resident and Responsible Party, if any,
acknowledge(s) that the ALF, in entering into this contract is relying upon the
truthfulness of the promises and representations herein of the Resident and
Responsible Party, if any.
Yo (nosotros) ademas testificamos que el Residente of Persona con
Responsabilidad por el Residente, hemos prometido seguir las representaciones
aqui hechas para inducir a estate ALF a entrar en este contrato conmigo.
Entendemos tambien que el ALF al entrar en esta contrato conmigo esta aceptando
toda la informacion que le he dade acerca de mi persona como veridica y cierta.
I (we) also agree to follow the ALF's policies and procedures stated in the
admission packet given to Resident and/or Repsonsible Party upon admission.
Yo (nosotros) estamos de acuerdo en seguir todas las polizas del ALF incluidas
en el folleto de admission, el cual he recibido.
IN WITNESS WHEREOF, WILLIAMSBURG RETIREMENT LIVING, INC. AND YOU HAVE EXECUTED
THIS AGREEMENT ON THE DATE SET FORTH BELOW.
Resident Signature;_________________________ Date:______________________
Responsible Party Signature:_________________ Date:______________________
ALF Representative:__________________________ Date:______________________
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