HomeMy WebLinkAboutSEOPW-CRA-R-02-0168RESOLUTION NO. SEOPW/CRA R- 0 2 - 168
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY
(THE "CRA") WITH RESPECT TO THE SOUTHEAST OVERTOWN/PARK
WEST LEASE AND DEVELOPMENT AGREEMENT DATED JUNE 15,
1988 AS AMENDED BY FIRST AMENDMENT TO LEASE AND
DEVELOPMENT AGREEMENT DATED NOVEMBER 3, 1988
(COLLECTIVELY THE "LEASE") BY AND BETWEEN PARK WEST, LTD.
AND THE CITY OF MIAMI, AS SUBSEQUENTLY ASSIGNED TO THE
CRA WITH RESPECT TO THE ARENA TOWERS PROJECT (THE "ARENA
TOWERS PROJECT") AUTHORIZING THE CRA TO (i) WAIVE THE
REQUIREMENT THAT WATCH OMEGA HOLDINGS L.P., A DELAWARE
LIMITED PARTNERSHIP (THE "TENANT") PROVIDE AUDITED
FINANCIAL STATEMENTS FOR THE YEARS 1996 THROUGH 2O01 AND
IN LIEU THEREOF ACCEPT FINANCIAL STATEMENTS THAT HAVE
BEEN REVIEWED BY KPMG FOR THE YEARS 1997 THROUGH 2O01; (ii)
WAIVE THE REQUIREMENT THAT TENANT PROVIDE A FINANCIAL
STATEMENT FOR THE YEAR 1996 SINCE THE BOOKS AND RECORDS
WITH RESPECT TO THE ARENA TOWERS PROJECT ARE NOT
AVAILABLE TO THE TENANT FOR THAT YEAR AS A RESULT OF A
FORECLOSURE ACTION PROVIDED TENANT PAYS AS RENT FOR THE
YEAR 1996 THE AVERAGE RENT DETERMINED TO BE DUE AND
PAYABLE FOR THE YEARS 1997 THROUGH 2O01; (iii) CONFIRM THAT
PROFESSIONAL MANAGEMENT, INC., A FLORIDA CORPORATION
("PMI") IS AN "ACCEPTABLE OPERATOR" AS SAID TERM IS DEFINED
IN THE LEASE; (iv) ACKNOWLEDGE AND AGREE THAT TENANT
SHALL BE ENTITLED TO ALL THE RIGHTS OF AN "INSTITUTIONAL
INVESTOR" UNDER THE LEASE WITH RESPECT TO A PURCHASE
MONEY MORTGAGE, INCLUDING ALL THE RIGHTS AND REMEDIES
UNDER SECTION 6.1 (c) (ix) OF THE LEASE; AND (v) AUTHORIZE THE
ACTING EXECUTIVE DIRECTOR TO EXECUTE AN ESTOPPEL LETTER
IN CONNECTION WITH THE LEASE.
WHEREAS, the CRA is responsible for community redevelopment activities
and projects in the Southeast Overtown/Park West community redevelopment area
(the "Redevelopment Area") established pursuant to the Redevelopment Plan; and
I WHEREAS, the Lease was executed in furtherance of the Redevelopment
Plan and the CRA desires to waive certain rights under the Lease and acknowledge
certain rights under the Lease, as hereinafter provided.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS
OF THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF MIAMI, FLORIDA:
SEOPW/CRA
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Section 1. The recitals and findings contained in the Preamble to this
Resolution are incorporated herein as if fully set forth in this Section.
Section 2. The Board of Directors of the CRA authorizes the Acting
Executive Director of the CRA to (i) waive the requirement that Tenant provide
audited financial statements for the years 1996 through 2001 and accept, in lieu
thereof, financial statements that have been reviewed by KPMG for the years 1997
through 2001 provided same are delivered to the CRA prior to December 31, 2002;
GO waive the requirement that Tenant provide a financial statement for the year
1996 provided Tenant pays as rent for the year 1996 the average rent determined to
be due and payable for the years 1997 through 2001; (iii) confirm that PMI is an
"Acceptable Operator" as defined in the Lease; (iv) acknowledge that Tenant shall
be entitled to all of the rights of an "Institutional Investor" under the Lease with
respect to the purchase money mortgage to be executed and delivered to Tenant in
connection with the sale of its interest in the Lease, including all of the rights and
remedies under Section 6.16(c)(ix) of the Lease; and (v) execute an estoppel letter
substantially in the form of Exhibit "A" attached hereto in connection with the
Lease, subject to any modification thereto recommended by Holland & Knight LLP
as special counsel to the CRA.
Section 3. This resolution shall be effective immediately upon its adoption.
PASSED AND APPROVED this 29th day of October, 2002.
Priscilla Thomas, Clerk of the Board
APPROVED AS TO FORM AND
CORRECTNESS:
William R. Bloom, Esq.
Holland & Knight LLP
.CRA Special Counsel
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Arthur E. Teele, Jr., Chairman
SEOPW/C1RA.
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CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
To: Arthur E. Teele, Jr. and Date: October 29, 2002
Members of the CRA Board
Subject: Southeast
Overtown/Park West
Lease and Development
Agreement with respect
to the Arena Towers
Project.
From: Annette Lewis Reference:
Acting Executive Direct
Enclosures: Resolution,
Letter from Holland &
Knight LLP
RECOMMENDATIONS
Based upon the legal analysis of the terms and provisions of the Southeast
Overtown/Park West Lease and Development Agreement dated June 15, 1988, as
amended (the "Lease") provided by Holland & Knight LLP as special counsel to the
CRA it is respectfully recommended that the CRA Board of Directors approve the
attached resolution authorizing the CRA to (i) waive the requirement that Watch
Omega Holdings L.P., a Delaware limited partnership (the "Tenant") provide
audited financial statements for the years 1996 through 2001 and lieu thereof
accept financial statements that have been reviewed by KPMG for the years 1997
through 2001 provided same are delivered to the CRA on or before December 31,
2002; (ii) waive the requirement that Tenant provide a financial statement for the
year 1996 since the books and records with respect to the Arena Towers Project are
not available to the Tenant for that year as a result of a foreclosure action provided
Tenant pays as rent for the year 1996 the average rent determined to be due and
payable for the years 1997 through 2001; (iii) confirm that Professional
Management, Inc., a Florida corporation ("PMI") is a "Acceptable Operator" as said
term is defined in the Lease; (iv) acknowledge and agree that Tenant shall be
entitled to all the rights of an "Institutional Investor" under the Lease with respect
to the purchase money mortgage, including all the rights and remedies under
Section 6.1 (c) (ix) of the Lease and authorize the Acting Executive Director to
execute an Estoppel Letter in connection with the Lease in the form approved by
Holland & Knight LLP as special counsel to the CRA.
a
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JUSTIFICATION
The Arena Towers Project was originally developed by Park West, Ltd. pursuant the
Lease dated June 15, 1988 and has been fully developed as an apartment complex
containing 355 residential units. In 1997 Condor One, Inc., an affiliate of the
foreclosing lender acquired title to the leasehold estate of Park West, Ltd. through a
foreclosure action. In December of 1996 the CRA executed a Mutual Estoppel
Confirmation Agreement confirming the transfer of a leasehold estate in the Arena
Towers Project to Condor One, Inc. Condor One, Inc. subsequently assigned its
interest in the Lease to Tenant which is also an affiliate of the foreclosing lender.
The CRA executed a letter confirming this transfer on February 26, 1998. Tenant is
currently in the process of selling its interest in the Lease to Bayview Towers
Associates, LLC, a Florida limited liability company (the "Purchaser"). In
connection with the transfer Tenant and Purchaser have requested that the CRA
issue an estoppel letter substantially in the form previously issued by the CRA and
consistent with the terms and provisions of the Lease. We have satisfied ourselves
that Professional Management, Inc. automatically qualifies as an Acceptable
Operator as defined in the Lease and that therefore Purchaser automatically
qualifies as an Acceptable Purchaser as defined in the Lease, therefore, we would
recommend that the CRA Board authorize the issuance of the estoppel letter.
In addition, Tenant, which is affiliated with General Electric Capital Corporation,
has requested that we acknowledge that Tenant will be entitled to all rights of an
"Institutional Investor" under the terms of the Lease in connection with the
purchase money mortgage to be given. Based upon Tenant being affiliated with
General Electric Capital Corporation and being the successor interest to the
foreclosing lender, we would recommend that the CRA Board acknowledge that the
Tenant will be given the status of an "Institutional Lender" since this is consistent
with the spirit and intent of the Lease.
The Lease requires that the Tenant provide audited financial statements prepared
by PriceWaterhouse Coopers or an equilivant. Tenant has advised us that financial
statements for the year 1996 are unavailable since that was the year the title was
obtained through the foreclosure action. For years 1997 through 2001 Tenant had
proposed that the CRA accept internally prepared financial statements which had
been reviewed by KPMG. It is recommended that the CRA Board waive the
requirement that audited financial statements be provided for the years 1997
through the year 2001 and that the CRA accept financial statements that have been
reviewed by KPMG. In addition, it is recommended that the Board waive the
requirement that the Tenant provide financial statements for the year 1996 and in
lieu thereof accept rent for the year 1996 based upon the average rent payable
under the Lease for the years 1997 through 2001.
SEOPW / CR.A,
Further, it is recommended that as a condition waiving the requirement that the
Tenant under the Lease provide audited financial statements for the years 1997
through 2001 that the Tenant waive any claim that it may have against the City of
Miami and the CRA with respect to payment of real estate taxes and assessments
with respect to title to the property for the years 1993 through 2001 including
without limitations claims with respect to interest and penalties incurred by Tenant
purportedly as a result of the failure of the CRA and the City of Miami to forward
tax bills and tax notices to Tenant.
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§§OPW/CRA
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