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HomeMy WebLinkAboutR-90-0124J-90-134 2/7/90 90-,-01 4 RESOLUTION NO. A RESOLUTION, WITH ATTACHMENTS, RELATING TO THE DEVELOPMENT OF ELDERLY OR HANDICAPPED HOUSING ON THE VIZCATRAN (VIZCAYA METRORAIL) SITE; APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, MODIFYING AN EARLIER AGREEMENT ON THE SAME SUBJECT APPROVED BY RESOLUTION NO. 88-542; THEREBY ALLOWING VIZCATRAN, LTD. TO WITHDRAW $50r238.21 FROM THE PRINCIPAL AMOUNT PRESENTLY HELD IN ESCROW BY OCEAN BANK, SUBSEQUENT TO EXECUTION AND RECORDATION BY VIZCATRAN OF A CONDITIONAL MORTGAGE DEED AND MORTGAGE NOTE TO SECURE SAID WITHDRAWAL. WHEREAS, the City Commission is desirous of providing the maximum number of affordable housing opportunities for the citizens of the City of Miami; and WHEREAS, the subject housing project involves the development of elderly -handicapped housing in the vicinity of the Vizcaya Station of the Metrorail system which is located at approximately 3200-3202 Southwest 1st Avenue, 168 Southwest 32nd Road, and 200 Southwest 32nd Road in the City of Miami; and WHEREAS, the City Commission, by Resolution No. 88-542, approved the terms of an Escrow Agreement negotiated pursuant to Motion No. 88-353, between Swire Pacific Holding's, Inc., Vizcatran, Ltd., the City of Miami, and Ocean Bank of Miami, relative to development of elderly -handicapped housing near the Vizcaya Metrorail Station; and WHEREAS, Vizcatran, Ltd., pursuant to the aforementioned 1988 Agreement, has obtained a commitment from U.S. HUD dated September 30, 1989, for development of an elderly -handicapped housing project on the Vizcatran site; and WHEREAS, it is in the best interest and general welfare of the citizens of the City of Miami that the City act, whenever possible, to assure affordable housing opportunities for every segment of its population; ATTAC' I I 1!-t- -117, r4i! 7 Q cull CITY COMESSION MEETING OF FEB 7 Y990 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. All recitals and findings contained in the preamble of this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. An Agreement Modification, in substantially the ' attached form, by and among Swire Pacific Holdings, Inc. (as successor to Swire Biscayne, Inc.), Vizcatran, Ltd., the City of Miami, and Ocean Bank of Miami, as Escrow Agent, is hereby approved. Section 3. The City Manager is hereby authorized to execute the subject Agreement Modification on behalf of the City of Miami. Section 4. Upon execution of the Agreement Modification ("Modification") by all parties, Vizcatran, Ltd. shall, inter alia, execute and record a mortgage deed and note as required by this Modification, utilize said funds as provided for in said Modification, and thereupon shall be entitled to withdraw Fifty Thousand Two Hundred Thirty Eight Dollars and Twenty --One Cents ($50,238.21) from escrow funds being held by the Escrow Agent PASSED AND ADOPTED this 7th _ day of February , 1990. ATXAVIER L. SU , MAYO TE MATT HIRAI, CITY CLERK PREPARED AND APPROVED BY: E . MAXWELL EF ASSISTANT ITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: t 4YCY FER A E ATTORNE JEM/db/M1372 AGREEMENT MODIFICATION This Agreement Modification is entered into this day of , 1990, by and among SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation (as successor to SWIRF BISCAYNE, INC., a Florida corporation] ("Swire"); VIZCATRAN, LTD., a Florida limited partnership ("Vizcatran"); The City of Miami, a Florida municipal corporation ("City of Miami"): and OCERN BANK, a state chartered bank ("Escrow Agent"). WHEREAS, the parties hereto entered into an Agreement dated June 9, 1988, regarding the subject matter of Resolution No. 88-542 entered by the City of Miami ("Agreement") a copy of which is attached hereto and incorporated herein by reference as Exhibit "A"; WHEREAS, Vizcatran in compliance with paragraph 5C of the Agreement has obtained a HUD commitment dated September 30, 1989; and WHEREAS, the parties pursuant to the Agreement established an Escrow Fund and now desire to amend the Escrow Fund terms set forth in the Agreement as stated below. NOW, THEREFORE, in consideration of the foregoing premises and the following mutual covenants, the parties agree as follows: 1. Escrow Agent is hereby authorized to disburse to Vizcatran Fifty Thousand Two Hundred Thirty Eight 21/00 Dollars ($50,238.21) as reimbursement expenses incurred by Vizcatran for the Carrying Costs (as defined in paragraph 5A of the Agreement) of the Property. The Carrying costs reimbursement authorized herein includes the payment by vizcatran of the 1987 Real Estate Taxes, the 1988 Real Estate Taxes, Tax Search Fee, Computer Title update, Appraisal Fee, Processing Fee, Loan Points, Recording Fee and Interest due on Note. 2. If for any reason the Closing does not take place by the Termination date set forth in the Agreement, Vizcatran agrees to immediately pay to the City of Miami the sum of Fifty Thousand Two Hundred Thirty Eight 21/00 Dollars ($50,238.21). 3. Vizcatran agrees to execute a Mortgage Deed and conditional interest free Mortgage Note in favor of the City of Miami as security to the City of Miami that Vizcatran shall reimburse the City of Miami for said escrow disbursement if the Closing does not take place by the aforesaid Termination date. 4. The Mortgage Deed and Mortgage Note shall be immediately recorded upon execution by Vizcatran and copies supplied to all parties to the Agreement. 5. The Mortgage Deed and Mortgage Note shall be released to Vizcatran in accordance with paragraph 5C of the Agreement. If for any reason the Closing does not take place by the Termination date the amount provided for in paragraph 2 of this Modification shall become fully due and payable, and shall accrue interest at the rate of ten percent (10%) per annum from the date of such Termination. Said amount shall not accrue interest or be repayable except in the event of Termination. 6. The parties hereby agree that the date of the 1988 Agreement, which is the subject of this Modification, shall be June 9, 1988. 7. All provisions of the Agreement remain in full force and effect and shall not be modified, altered or amended except as set forth herein. qEN RETbxwovu tun FuRs. REVIEW, PLEASE IDENTIFY AS 4 ILI IN WITNESS HEREOF, the parties hereto have executed this Agreement Modification on the day and year first written above. SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation 501 Brickell Key Drive Suite 102 Miami, Florida 33131 By: --__ Name: STEPHEN L. OWENS Title: Vice President VIZCATRAN, LTD., a Florida limited partnership 7380 N.W. 77th Court Medley, Florida 33166 By: Name: JUAN MANUEL DELGADO, Title: Sole General Partner THE CITY OF MIAMI, a Florida municipal corporation 3500 Pan American Drive Miami, Florida 33133 By: Name: CESAR H. ODIO Title: City Manager ATTEST: MATTY HIRAI City Clerk APPROVED AS TO FORM AND CORRECTNESS: " JO E RNANDEZ i Ct y Attor y OCEAN BANK, a state chartered bank 780 N.W. Le Jeune Road Miami, Florida By: Name: RICHARD ADAMS Title: Sr. Vice -President JEM/db/M211 2/8/90 - 10i58 a.m. i J-88-493 6/7188 RESOLUTION NO. A RESOLUTION APPROVING THE ESCROW AGREEMENT NEGOTIATED PURSUANT TO MOTION 88-353, IN ESSENTIALLY THE FORM ATTACHED HERETO, BETWEEN SWIRE PACIFIC HOLDINGS, INC., VIZCATRAN, LTD., THE CITY OF MIAMI AND OCEAN BANK OF MIAMI, RELATIVE TO THE DEVELOPMENT OF ELDERLY -HANDICAPPED HOUSING NEAR THE VIZCAYA METRORAIL STATION; AUTHORIZING THE CITY ATTORNEY TO EXECUTE THE SUBJECT AGREEMENT ON BEHALF OF THE CITY; AND RELIEVING SWIRrE PACIFIC HOLDINGS, INC. CONDITIONALLY FROM ANY FURTHER OBLIGATION TO THE CITY OF MIAMI TO PROVIDE LOW INCOME/AFFORDABLE HOUSING. WHEREAS, the City Commission is desirous of providing the maximum number of affordable housing opportunities' for the citizens of the City of Miami; and WHEREAS, on April 14, 1988, the City Commission was, verbally, presented the basic terms of an agreement by Joseph J. Portuondo, Esq., attorney for the property owner upon which the subject housingy is to be constructed, regarding an agreement for escrowing certain funds to be used for purposes of facilitating construction of the project;Y and WHEREAS, the City Commission, by Motion 88-353, approved the basic terms of said agreement and delegated to the City Attorney the power to approve the agreement, subject to consultation with the City Commissioners, on an individual basis, to explain its terms; and WHEREAS, the Mayor, Vice Mayor, and Commissioners, have, individually, been apprised of the terms of the subject agreement by the City Attorney; and 1� The subject housing ] g project involves the development of elderly -handicapped housing in the vicinity of the Vizcaya Station of the Metrorail System which is located at approximately 3200-3202 Southwest 1st Avenue, 168 Southwest 32nd Road, and 200 Southwest 32nd Road in the City of Miami# and more particularly described in EXhibit A, attached hereto. I{� ��T-9rC�r^ o zt r CITy COI�WSSION MEETING OF JUN 9 1966 ev WHEREAS, it is in the best interest and general welfare of ' the citizens of the City of Miami that the City act, whenever possible, to assure affordable housing opportunities for every segment of its population: OW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Motion 88-353 is hereby ratified and confirmed and the escrow agreement, in essentially in a form attached hereto, by and among Swire Pacific Holdings, Inc. (as successor to Swire Biscayne Inc.), Vizcatran Ltd, the City of Miami, and Ocean Bank of Miami (as escrow agent) is hereby approved. Section 2. The City Attorney is hereby authorized to execute the subject agreement on behalf of the City of Miami. Section 3. Swire Pacific Holdings, Inc. shall, upon its complete compliance with the terms of the subject escrow agreement regarding the deposit of funds, be immediately and fully released from any further obligation to provide housing in the City of Miami pursuant to Resolution No. 86-169, or any other previous City of Miami resolutions, without further action of. this City Commission. Section 4. All recitals and findings contained in the preamble of this resolution are hereby incorporated by reference thereto and are hereby adopted as it fully get forth in this --; section. PASSED AND ADOPTED this 9th day of June , 1988. �9 XAVIER L. SUA MAYOR ATTEt-T : ; MATTY HIRAI CITY CLERK PREPARED AND APPROVED BY: J L E. MAXWEL.L SStSTANT CITY ATTORNEY JEM/db/M716 I], 0TRIJ of �iami IaRGi L. FERNANOEz "Of Gtv Mtornev q..p QAH. /- June 10, 1988 FOR PICK-UP Joseph J. Portuondo, Esquire wood, Lucksinger and Epstein Southeast Financial Center Suite 3700 200 South Biscayne Boulevard Miami, Florida 33131-2359 Re: Vizcatran Site Escrow Agreement Dear Mr. Portuondo: -30St S79-6700 Telecopier: 0051 374.4730 Please find attached, hereto, four (4) original Vizcatran Site Escrow Agreements which have been signed by the City Attorney pursuant to the City Commissiod's authorization of May 90 1988. I have substituted the corrected covenants received this date for the onespreviously submitted by you. The new covenants have been identified as "Exhibit A," and signed by this Office. I also notice that the title and name of the signatory on the Agreement for Ocean Hank on the Agreements is not typed in. Said additions should be made prior to execution by Swire. Immediately after the Escrow Account is established, please record the covenant and send a recorded original to this Office., Sincerely, w E. Maxwel ( A sistant Cit Attorney: JEM/db/P568 Attachments cc: Jorge L. Fernandez, City Attorney John J. Copelan, Jr., Deputy City Attorney Matt Gorsen, Esq. OFFICE OF THE CITY ATTORWYmoo Amerti,r%t Suwldinvorte Soulheatt Third AvenuetMumt. Florida 33131 j a THIS AGREEMENT is made as of the day of , 198i, by and among SWIRE PACIFIC HOILDINGS, INC., a Delaware corporation [as successor to SWIRE BISCAYNE, INC., a Florida corporation] ("Swire"); VIZCATRAN, LTD., a Florida limited partnership ("Vizcatran"); THE CITY OF MIAMI, a municipality (the "City of Miami"); and OCEAN BANK, a state chartered bank ("Escrow Agent"). R E C I T A L S: A. Through a series of Resolutions of the City Commission, the City of Miami has imposed certain requirements upon the = developers of Claughton Island with respect to the provision of moderate -affordable housing units at three (3) locations (to wit: Shell City, East Little Havana, and Vizcaya' Metrora11). B. Pursuant to Resolution No. 86-169, Swire has heretofore funded the sum of $3,200,000.00 and thereby fully satisfied all requirements with respect to the Shell City and East Little Havana sites. C. At this time, the proposed developers of the Vizcaya Metrorail Site project have failed to complete construction of that project as required and approved by the City of Miami and in accordance with the terms of their contract with Swire. D. Vizcatran is the fee simple title owner of that certain property ("Property") whose legal description is contained on Exhibit "A" attached hereto and on which the Vizcaya Metrorail project was to have been built. E. Subject to the full release of the developers of Claughton Island from all further obligations of any nature with respect to providing low or moderate income housing in connection with the development of Claughton Island, Swire has agreed to place the sum of $525,000.00 ("Funds") into escrow for use by 98-54 ' Vitcatran, as specified in this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the following mutual covenants, the parties agree as follows: 1. Vizcatran has agreed to seek (on its own behalf or through a development entity to be created) funding from the U.S. Department of Housing and Urban Development ("HUD") for the purpose of building a HUD -financed elderly/handicapped projer4. (the "Project") on the Property. 2. Crestign of Escrow Account. The Escrow Agent represents that it has established an interest -bearing escrow account ("Escrow Account") with ocean Bank to carry out the purpose of this Agreement. 3. Deposit of Funds in Egcro,W Account. Simultaneously with the execution of this Agreement Swire has tendered the Funds to the Escrow Agent in full satisfaction of any obligations of the developers of Claughton Island with respect to the provisions of any low/moderate income housing. 4. Release of Developers -of Claughton Island. The City of Miami hereby: A. Acknowledges and confirms that, by Swire depositing the Funds in the Escrow Account, the developers of Claughton. Island have fully, completely and finally fulfilled their obligation to provide low/moderate income housing in the City of Miami pursuant to the applicable Development Orders for Claughton Island; and B. Releases the developers of Claughton Island from all further obligations of any nature with respect to providing low or moderate income housing in connection with the development` of Claughton Island. 5. Disbursement from the Escrow Account. The Escrow Agent shall disburse the Funds, and all earnings and interest which may have accrued thereon, as follows: A. Promptly after the execution of this Agreement, the Escrow Agent shall disburse Twenty -Five Thousand and do/100 Dollars ($25,000.00) to Vizcatran to be used by Vizcatran for the exclusive purpose of paying carrying costs of the Property, 9124 including, without limitation, real estate taxer, insurance premiums and interest payments on any existing mortgages which encumber the Property ("Carrying Costs"). B. Prior to the Termination Date (as hereinafter defined), the Escrow Agent shall periodically disburse to Vizcatran any interest which has accrued on the Funds to be used by Vizcatran for the exclusive purpose of paying Carrying Costs. C. On such date as Vizcatran or other appropriate developing entity obtains funding under a HUD commitment or other appropriate financing so as to be able to close the acquisition of the title to the Property by the developing entity and to commences construction of the Project ("Closing"), the Escrow Agent shall, upon receipt of written notice from Vizcatran, Swire, and the City of Miami, immediately disburse: (i) One Hundred Seventy -Five Thousand and No/100 Dollars ($175,000.00) to Swire and (ii) Three Hundred Twenty -Five Thousand and No/100 Dollars ($325,000.00), plus any accrued and undisbursed interest to Vizcatran or its designee to be used for the exclusive purpose of clearing title to the Property, including, but not limited to, satisfying all existing mortgages on the Property. Upon such disbursement to Vizcatran and as a condition thereto, Vizcatran shall execute and record in the Public Records of Dade County, Florida, certain restrictive covenant(s) in the fora attached hereto as Exhibit "A", and as more particulary set forth in paragraph V below. D. if for any reason the Closing does not take place by the Termination Date, then on the Termination Date, the Escrow Agent shall, upon receipt of written notice from Vizcatran, Swire, and the City of Miami, imediately disburse: (i) One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) to Swire, and (ii) Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00), plus any interest accrued after the Termination Date, to the City of Miami. As used herein, the term "Termination Date'l shall mean December 31, 1989, unless by such date Vizcatran or other appropriate developing entity has obtained a written conditional commitment from HUD to finance the development of the Project on the Property: in which latter event, the Termination Date shall be extended until the earlier of the date the HUD commitment expires or four (4) years following the date of this Agreement. E. Upon distribution of all of the Funds in accordance with the terms hereof, the duties and obligations of the Escrow Agent shall terminate. 6. Duties and Obligations of Vizcatran. If for any reason the Closing does not take place by the Termination Date, then on the Termination Date, Vizcatran shall immediately pay to Swire the sum of Twenty -Five Thousand and No/100 Dollars ($25,000.00) as reimbursement for the disbursement made by the Escrow Agent to Vizcatran pursuant to paragraph 5A above. 7. Restrictive Covenants. Upon the disbursement by the Escrow Agent of the sum of Three Hundred Twenty -Five Thousand and No/100 Dollars ($325,000.00), plus any accrued and undisbursed interest, to Vizcatran or its designee, Vizcatran shall execute and record in the Public Records of Dade County, Florida, the Restrictive Covenant which is attached hereto as Exhibit "A". In the Restrictive Covenant, Vizcatran acknowledges the neighbors' concerns about the proposed height of the Project which will be constructed on the Property. In the event Vizcatran decides to apply for necessary variances to construct the Project, and if the City of Miami grants the necessary variances and the same become final and non -appealable, then Vizcatran will execute an Amended Restrictive Covenant. The Amended Restrictive Covenant will further limit the height of the Project provided that the same number of units that were accommodated in the original site plans for the nine (9) story Project can be accommodated in a building with less height. 8. Duties and Obligations of Fscrow Agent,. The Escrow Agent shall receive, administer and disburse the Funds as set forth in this Agreement. The Escrow Agent shall only be required to perform such duties and obligations as are expressly set forth herein, and no implied duties or obligations shall be read into this Agreement. i ahtsgf Escrow Agent. The Escrow Agent shall not be -1 _ liable for any mistakes of fact or error of judgment, or for any 3 actions or omissions of any kind unless caused by its willful misconduct or gross negligence. In the event of a dispute as to the proper disposition of the Funds, the Escrow Agent may bring a court action or proceeding to determine the proper disposition of yi such funds and, in such event, the Escrow Agent shall be fully protected in suspending all or part of its acts under this Agreement until a Final Judgment is rendered. 10. Successor Escrow Agent. The Escrow Agent may resign _ upon ten (10) days' prior written notice to Vizcatran, Swire and the City of Miami, provided that a successor has first been properly appointed and the successor has assumed all the obligations of the Escrow Agent hereunder. Vizcatran, with the prior written approval of Swire and the City of Miami, shall be entitled to designate a successor to the Escrow Agent. The Funds shall immediately be turned over to such approved successor who shall thereafter be deemed the Escrow Agent hereunder. If a successor Escrow Agent is not appointed within such ten (10) day period by Vizcatran and approved by Swire and the City of Miami, the Escrow Agent may petition the Circuit Court in and for Dade County, Florida, to name a successor. Upon acceptance of the Escrow Agent's resignation by Vizcatran (and Swire and the City of Miami) or by the court, the resigning Escrow Agent shall be released from any further obligation hereunder. 11. Hindina Obliga_ionl. The rights created by this Agreement shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of all parties to this Agreement. 12. Notice. Any and all notices referred to herein shall —� be sufficient if furnished in writing sent by certified mail, return receipt re _ p quested, to the respective parties at the addresses set forth above their signatures to this Agreement or such other address as they shall, from time to time, furnish to �+ each other by written notice. 13. Hem_ minas. All paragraph headings in this Agreement are ► 90-0124-1. included for ease of reference only and shall not affect tht meaning of the language in said paragraphs. 14. Governing Law. This Agreement shall be construed and enforced according to the laws of the State of Florida. 15. Entire Agreement. This Agreement, together with the exhibit attached hereto, constitute the entire agreement and understanding among the parties. IN WITNESS WHEREOF, the parties hereunto have executed this Agreement on the day and year first above written. SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation 501 Brickell Key Drive Suite 102 Miami, Florida 33131 By: Name: Title: VIZCATRAN, LTD., a Florida limited partnership 7380 N.W. 77th Court Medley, Florida 3 By: JUAN VOWEL DELGADO, Sole General Partner THE CITY OF MIAMI, a municipality 1100 AmeriFirst Building One Southeast Third Avenue Miami, lorida 33131 ' rN _ i--. Namet aORdi L. F RNANCEZ Titi#3City Attor ey OCEAN BANK, a state chartered bank 780 N, Le Jeune Road Miami(, Olorida •r / Na e: Tit JJP1/a:5-25a 5993.5-502 DECLARATION OF RESTRICTIVE COVINANTS This Declaration of Restrictive Covenants by VIZCATRAN LTD.. a Florida limited partnership ("Owner"), in favor of the City of Miami, Dade County, Florida, a political subdivision of the State of Florida ("the City"). W I T N E S S E T H: WHEREAS, the Owner holds fee -simple title to certain property in the City of Miami, State of Florida. consisting of Tract A, Vizeatran Garden, as per the plat thereof recorded in Plat Book 129, Page 89 in the Public Records of bade County, Florida (the "Property"); and OHEREAS, the Owner is planning to construct a HUD financed elderly handicapped housing project on the Property; and WHEREAS, the Owner recognizes the adjacent property owners' concern about the height of the proposed residential project; NOW. THEREFORE, the Owner voluntarily covenants and agrees that the Property shall be subject to the following restrictions that are intended and shall be deemed to be covenants running with the land and binding upon the Owner of the Property and its successors and assigns as follows: A. Heicht Restriction. The height of the proposed project to be constructed on the Property will be limited to nine (9) stories. No building permit will be issued for the Property unless the site plan for the proposed project shows that the project will be limited to the nine (9) story height restriction. E. Effective Date. shall constitute a cc% Property and be binding the date of execution. This instrument shall be effective and nant running with the title to the upon the Owner, its successors and upon These restrictions shall be for the benefit and limitation upon all present and future owners of the Property and for the public welfare. C. Amendment and -Modification. This instrument may be modified. amended, or released as to any Portion of the Property by a written instrument executed by the then owner of the fee - simple title to the land to be effected by such modification, amendment or release providing that same has been approved by the City of Miami Commission. Should this instrument be so modified, amended or released, the Director of the Planning Department or his successor, shall execute a Written instrument in recordable form effectuating and acknowledging such modification, amendment or release. D. Term of Covenant. This voluntary covenant on the part of the Owner shall remain in full force and effect and shall be binding upon the owner, its successors and assigns for an initial period of thirty (30) years from the date this instrument is recorded in the public records and shall be automatically extended for successive periods of ten (10) years thereafter unless modified, amended or released prior to the expiration thereof. E. Presumption of Compliance. Where construction has occurred on the property or any portion thereof, pursuant to a. lawful permit issued by the City of Miami, and inspections made and approval of occupancy given by the City, the same shall create a presumption that the building or structure thus constructed comply with the intent and spirit of this Declaration of Restrictive Covenants and said Declaration shall not be construed as a cloud on title to any of said property upon which development has occurred. F. xnsoectior, and Enforcement. It is understood and agreed that any official inspector of the City of Miami may have the privilege at any time during normal working hours to determine whether the conditions of this Declaration are being complied with. An enforcement action brought by the City or by an affected resident shall be by action at law or in equity against any party or person violating or attempting to violate any covenants, either to restrain violations or to recover damages. The prevailing party in the action or suit shall be entitled to recovcr costs and reasonable attbrnoy's fees. This enforcement provision shall be in addition to any other remedies available under the law. G. Severability. Invalidation of any one of these covenants by judgment or Court in no Way shall affect any of the other provisions of this Declaration, Which shall remain in full -+ force and effect. H. Recording. This Declaration shall be filed of record among the Public Records of Dade County, Florida, at the cost of the Owners. IN WITNESS WHEREOF, the undersigned have set their hands and seals this _ day of 1988. WITNESSES: VIZCATRAN LTD., a Florida limited partnership By: JUAN M. DELGADO STATE OF FLORIDA ) SS COUNTY OF DADE ) The foregoing instrument Was acknowledged before me this day of 1988, by JUAN I9. DELGADO, General Partner on behalf of VIZCATRAN LTD., a limited partnership. NOTARY PUBLIC, STATE OF FLORIDA AT LARGE MY Commisnion Expires: �i Approved as to form and correctness: qf'jice of the City Attorney J 1 E. Maxwell Assistant City Attorney -� JJP1/a:5-25b 5993.5-502 f 90-01 4 �i PRZ-- T—c-pe we" 1isS I L-AW DEPT P. 02 1 - 7 AGREEMENT MODIPICATION This Agreement Modification is entered into this w,,,_,,,_ day of , 1990, by and among SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation (as successor to SWIM BISCAYNE, INC., a Florida corporation] ("Swire"); VIZCATRAN, LTD., a Florida limited partnership ("Vizcaitran")l The City of Miami, a Florida municipal corporation ("City of Miami")e and OCEAN SANK, a otate chartered bank ("Escrow Agent"). WHEREAS, the parties hereto entered into an Agreement dated June 9, 1988, regarding the subject mutter of Resolution No. 80-542 entered by the City of Miami ("Agreement"u copy of which is attached hereto and incorporated herein Ly reference as Exhibit "A"i WHEREAS# Vizcatran in compliance with paragraph 5C of the Agreement has obtained a HUD commitment dated September 30, 1989; and WHEREAS, the parties pursuant to the Agreement established an Escrow Fund and now desire to amend the Escrow Fund terms set forth In the Agreement as stated below. NOW, THEREFORE, in consideration of the foregoing premises and the following mutual covenants, the parties agree as follows& 1. Escrow Agent is hereby authorized to disburse to Vizcatran Fifty Thousand Two Hundred Thirty Bight 21/00 Dollars (550e238.21) as reimbursement expenses incurred by Vizcatran for the carrying Costs (as defined in paragraph 5A of the Agreement) of the Property. The Carrying costa !reimbursement authorized herein includes the payment by Vizcatran of the 1987 Real Estate Taxes, the 1988 Real Estate Taxes, Tax Search Fee, Computer Title update, Appraisal Fee, Processing Fee, Loan points, Recording Fee and interest due on Note. 2. If for any reason the Cloning does not tape piece by the Termination date set forth in the Agreement, Vizcatran agrees to immediately pay to the City of Miami the sum of Fifty Thousand Two Hundred Thirty Eight 21/00 Dollars ($50,238.21). 3. Vizcatran agrees to execute a Mortgage Deed and conditional interest free Mortgage Note in favor of the City of /Miami as security to the City of Miami that Vizcatran shell reimburse the City of Miami for said escrow disbursement if the Closing does not take place by the aforesaid Termination date. / 4. The Moxtgn9e Deed And Mortgage Note shall be v Immediately recorded upon execution by Vizcatran and copies • supplied to all parties to the Agreement. S. The Mortgage Deed and Mortgages !Vote shall be released to viscatran in accordance with paragraph 5C of the Agreement. If for any reason the Closing does not take place by the Termination date the amount provided for in paragraph 2 of this Modification shall become fully due and payable, and shall accrue Interest at the rate of ton percent (10%) per annum from they date of such Termination. Said amount shall not accrue interest or be repayable except in the event of Termination. J6. The parties hereby agree that the date of the 1908 Agreement, which is the subject of this Modification, shall be June 9, 1988. 7. All provisions of the Agreement remain in full force and effect and shall not be modified, altered or amended except as set forth herein. kv T'-90 WED 1 E : ° G LAW DEPT P . 04 IN WITNESS HEREOF, the parties hereto have executed this Agreement Modification on the day and year first written above. JEM/db/M211 2/6/90 - 12si0 p.m. swrAE PACIFIC HOLDIN09r INC., a Delaware corporation 501 ariekell Key Drive Suits 102 Miami, r1orida 33131 Bys Names STEPHEN L. OWENS Titles Vice President VISCATRAN, LTD.r a Florida limited partnership 7380 N.W. 77th Court Medley, Florida 33166 Byl Alamos JUAN MANUEL DELGADQ, Titles Sole Genoral partner THE CITY OF MIAMI, a Florida municipal corporation One Southeast Third Avenue 1100 AmeriFirst Building Miami, Florida 33131 By Names JORGE L. FERNANDEZ Titles City Attorney OCEAN BANK, a State chartered bank 780 N.W. Le Jeune Road Miami, Florida By Names RICHARD ADAMS Titles Sr. Vice -President 40--0124 I � • 3 �3 r \�� 1` � L FiTzi3ER IMF PORTELA & P03&=0 rDO A PROFESSIONAL ASSOCIATION ATTORNEYS: AT LAW MUSEUM TOWER t ISO W. FLAGLER STREET, SUITE Mtwaa. Ft z=kA 33100 TELtPMONE (305) 358.0737 TELcrAx (305) 358.5645 �1 v 1N VIA, EAX: 858-1707 Mr. Cesar Odio City Manager 3500 Pan American Drive Miami, Florida 33133 January 22, 1990 kAL4 LEACH OFFiCE 189 GRAOLEY PLACE PALM •EACH, CI.OR10A 33480 (407) 659.6438 RZWLT TO: Miami 5993.5-502 RE: Vizcatran Project/ Addendum to Escrow Agreement between City of Miami, Swire Pacific Moldings, Inc., Ocean Bank and Vizcatran Ltd, Dear Air. Odio : On January 11, 1990, I sent you a }package concerning the subject matter and asked you to set the matter on the City Commission's agenda for the meeting on January 25, 1990. Since then, an unavoidable conflict in my schedule has arisen and, as such, I would appreciate very much if the matter can be rescheduled for the Commission meeting on February 7, 1990. Also, if possible, please schedule it such that it will be discussed after 5:00 p.m. Please confirm that the matter has been rescheduled as requested. Again, I thank you for your anticipated cooperation. S ncerely, Joseph J. Portuondo 3*3P/mtk/JJP13:odio2.ltr W. F=Gn w Y M, P03RTE,r& & PORT CONDO A PROFESSIONAL A8SOCIATION ATTORNEYS AT LAW MUSEUM TOWER Ib0 W. rI.AGLER STREET. SUITE 27C,i•U� 1.0 c., 3 � 11 A . "••1( NLAmm, FwamA aasoo aAL hI O)EAcM Clrrit',E 169 GRACLEY PLACE PALM YEACN, rLOR10A 33480 TCLEPMONC (305) 358.0737 (407) 650-8438. TELCrAX (305) 359. 5845 RZPs•Y To: �I VIA FAX: 858-1701 Mr. Cesar Odio City Manager 3500 Pan American Drive Miami, Florida 33133 January 22, 1990 Miami 5993.5-502 RE: Vizcatran Project/ Addendum to Escrow Agreement between City of Miami Swire Pacific Holdings, Inc., Ocean Bank and Vizcatran Ltd. Dear Mr. Odio: On January 11, 1990, I sent you a package concerning the subject matter and asked you to set the matter on the City Commission's agenda for the meeting on January 25, 1990. Since then, an unavoidable conflict in my schedule has arisen and, as such, I would appreciate very much if the matter can be rescheduled for the Commission meeting on February 7, 1990. Also, if possible, please schedule it such that it will be discussed after 5:00 p.m. Please confirm that the matter has been rescheduled as requested. Again, I thank you for your anticipated cooperation. S ncerely, Joseph J. Portuondo JJP/mtk/JJP13:odio2.ltr E 11 FITZGnnAxm, Pon=.& & PonTuONDo A PROFESSIONAL ASSOCIATION ATTORNEYS AT LAW 1' MUs&UM TOWER IRO W. FLAGLER STREET. SUITE 2701 �. bft& r. Fwnms ooioo TELEPHONE (30t) 350.0737 TELEFAX (303) 358.5845 January 3, 1990 Mr. Cesar odic City Manager 3500 Pan American Drive Miami, Florida 33133 PALM BEACH OFFICE 190 BRADLEY PLACE PALM BEACH. FLORIDA 334aO (AO7)639'Ba38 REPLY TO: Miami 5993.5-502 RE: Vizoatran Project/ Addendum to Escrow Agreement between City of Miami, 9wire Pacific Holdings, Inc., Ocean Bank and Vizcatran Ltd. Dear Cesar, I telephoned you today, but, unfortunately, I was unable to reach you. About ten days ago we spoke about placing the subject matter on the January 11, 1990, Commission agenda. Please confirm that the subject matter will be on the agenda. I thank you for your anticipated cooperation. As you know, this matter is very important to our client. Sincerely, Joseph J. Portuondo JJP/mtk/JJP13:odio.ltr ac: Juan Delgado Joel Maxwell, Esq. Matt Gorson, Esq. Richard Adams c FIZ GnnALD, POgzE=A & PoR3i'oNmDq, A PRORESSICNAL ASSOCIATION ATTOQNEYS AT LAW MUSEUM TOWER 1� - 150 W. PLAOLER STREET, SUITE 2701 X242" F.LOJ E A, 00100 PALM fOE LORRICE 18D ORAOEY PLACE PALM BEACH. FLORIO^ 33480 TELEPHONE (305) 358-0737 (adz) 659.6438 TELERAX (305) 358.5845 REPLY TO: Miami January 11, 1990 VIA HAND DELIVERY Mr. Cesar Odio 5993.5-502 City Manager 3500 Pan American Drive - Miami, Florida 33133 RE: Vizcatran Project/ City of Miami, Swire Pacific Holdings, Inc., Ocean Bank and Vizcatran Ltd. Dear Mr. Odio: Enclosed herein please find a Modification Agreement 'with respect to the subject matter and whose approval requires a vote by the City Commission. In past conversations, you promised to have this matter on the agenda for the Commission meeting on January 25, 1990. Please call me to confirm that the matter will be on the agenda. Again, I thank you for your anticipated cooperation. JJP/mtk/JJP13:odiol.ltr cc: Juan Delgado Matt Gorson, Esq. Richard Adams A. Quinn Jones Sincerely, it Jo, h J. Portuondo r Ci FrrzGnnAxm, Po$TELA & PORTUONDO A PROR<SSIONAL ASSOCIATION ATTORNEYS AT LAW MUSEUM TOWER 150 W. R'LAGLSR STREET. SUITE 2701 MSAMX. FLORWA 001m0 TCLEPMONt (305) 358.0737 TFLCFAX (305) 358.6845 January 11, 1990 PALM SCACM OrrICC 180 SRAOLCY PLACC PALM SCACM. ri-0010A 33460 (4071 eso-e43a RzmLr To: Miami Matthew Gorson, Esquire 5593.5-502 Greenberg Traurig, et al. 1221 Brickell Avenue Miami, Florida 33131 RE: Vizcatran Project/ City of Miami, awire Pacific Holdings, Inc., Ocean Bank and Vizcatran Ltd. Dear Mr. Gorson: Enclosed herein is a Modification Agreement which we wish to propose to the City Commission with respect to the subject matter. Please review it and provide me with your comments. , The proposal does not affect your client's interest at all and therefore I hope that I can have your cooperation in this matter. JJP/mtk/JJP13:gorson.ltr cc: Juan Delgado Matt Gorson,,Esq. Cesar Odio A. Quinn Jones Sincerely, J ndo c . F=Onn a er n, PORTED& & PonTQONDO A PPOrCSSIONAL ASSOCIATION ATTORNEYS AT LAW MUSEUM TOWER ISO W. rLAOLCR s'TR6ET. su E 2701 HiAmr. FLOHDDA O>: oo TELEPHONE (305) 35S-0737 TELCrAX (303) 358.5845 January 11, 1990 A. Quinn Jones, Esquire 3051 N.W. 24th Street Ft. Lauderdale, Florida 33311 PALM eEACM OrrICE 169 DPAOLEY PLACE PALM •EACH, rLON16A 33440 (407) 650-6438 RzwLY To: Miami. 5593.5-502 RE: Vizcatran Project/ City of Miami, Swire Pacific Holdings, Inc., Ocean Bank and Vizcatran Ltd. Dear Mr. Jones: Enclosed herein is the Modification Agreement we wish to propose to the City Commission. I believe it correctly reflects my communication with Joel Maxwell on the subject and furthermore, that it adequately protects all of the parties' interests in this matter. Please call me with your comments. Needless, to say, I will try to accomodate any concern that may be raised with respect to this matter. Sincerely, Jose J. Portuondo JJP/mtk/JJP13:jones.ltr cc: Juan Delgado Matt Gorson, Esq. Cesar Odio,. Richard Adams f AGREEMENT MODIFICATION This Agreement Modification is entered into this day of , 1990, by and among SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation [as successor to SWIRE BISCAYNE, INC., a Florida corporation] ("Swire"); VIZCATRAN, LTD., a Florida limited partnership ("Vizcatran"); The City of Miami, a municipality ("City of Miami"): and OCEAN BANK, a state chartered bank ("Escrow Agent"). WHEREAS, the parties hereto entered into an Agreement dated , 1989 regarding the subject matter of Resolution No. 86-169 entered by the City of Miami ("Agreement") a copy of which is attached hereto and incorporated herein by reference as Exhibit "All; WHEREAS, Vizcatran in compliance with paragraph 5C of the Agreement has obtained a HUD commitment dated ; and WHEREAS, the parties pursuant to the Agreement established an Escrow Fund and now desire to amend the Escrow Fund terms set forth in the Agreement as stated below. NOW, THEREFORE, in consideration of the foregoing premises and the following mutual covenants, the parties agree as follows: 1. Escrow Agent is hereby authorized to disburse to Vizcatran Fifty Thousand Two Hundred Thirty Eight 21/00 Dollars ($50,238.21) as reimbursement expenses incurred by Vizcatran for the Carrying Costs (as defined in paragraph 5A of the Agreement) of the Property. The Carrying Costs reimbursement authorized herein includes but is not limited to the payment by Vizcatran of the 1987 Real Estate Taxes, the 1988 Real Estate Taxes, Tax Search Fee, Computer Title update, Appraisal Fee, Processing Fee, Loan Points, Recording Fee and Interest due on Note. 2. If for any reason the Closing does not take place by the Termination date set forth in the Agreement, Vizcatran agrees to immediately pay to the City of Miami the sum of Fifty Thousand Two Hundred Thirty Eight 21/00 Dollars ($50,238.21). 3. Vizcatran agrees to execute a Mortgage Deed and Mortgage Note in favor of the City of Miami as security to the City of Miami that Vizcatran will reimburse the City of Miami for the escrow disbursement if the Closing does not take place by the aforesaid Termination date. 4. The City of Miami agrees not to record and to place the unrecorded Mortgage Deed and Mortgage Note executed by Vizcatran in escrow with the Escrow Agent. 5. The Mortgage Deed and Mortgage Note shall be released to Vizcatran in accordance with paragraph 5C of the Agreement or if for any reason the Closing does not take place by the Termination date the Escrow Agent agrees to release the Mortgage Deed and Mortgage Note to the City of Miami in Accordance with the paragraph 5D of the Agreement. 6. All provisions of the Agreement remain in full force and effect and shall not be modified, altered or amended except as set forth herein. IN WITNESS HEREOF, the parties hereto have executed this 990- 0=4 j{f • �. _f Agreement Modification on the day and year first written above. SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation 501 Brickell Key Drive Suite 102 Miami, Florida 33131 By• Name: Title: STEPHEN L. OWENS VICE PRESIDENT VIZCATRAN, LTD., a Florida limited partnership 7380 N.W. 77th Court Medley, Florida 33166 By. Name: Title: JUAN MANUEL DELGADO, Sole General partner THE CITY OF MIAMI, a municipality 1100 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 By: Name: JORGE L. FERNANDEZ Title: CITY ATTORNEY OCEAN BANK, a state chartered bank 780 N.W. Le Jeune Road Miami, Florida By• Name: RICHARD ADAMS Title: Sr. Mice -President G R E E! E N T THIS AGREEMENT is made as of the day of ► 1988, by and among SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation [as successor to SWIRE BISCAYNE, INC., a Florida corporation] ("Swire"); VIZCATRAN, LTD., a Florida limited partnership ("Vizcatran"); THE CITY OF MIAMI, a municipality (the "City of Miami"), and OCEAN BANK, a state chartered bank ("Escrow Agent") . R E' C I T� : A. Through a series of Resolutions of the City Commission, the City of Miami has imposed certain requirements upon the developers of Claughton Island with respect to the provision of moderate -affordable housing units at three (3) locations (to wit: Shell City, East Little Havana, and Vizcaya Metrorail). B. Pursuant to Resolution No. 86-169, Swire has heretofore funded the sum of $3,200,000.00 and thereby fully satisfied all requirements with respect to the Shell City and East Little Havana sites. C. At this time, the proposed developers of the Vizcaya Metrorail Site project have failed to complete construction of that project as required and approved by the City of Miami and in accordance with the terms of their contract with Swire. D. Vizcatran is the fee simple title owner of that certain property ("Property") whose legal description is contained on Exhibit "A" attached hereto and on which the Vizcaya Metrorail project was to have been built. E. Subject to the full release of the developers of Claughton Island from all further obligations of any nature with respect to providing low or moderate income housing in connection with the development of Claughton Island, Swire has agreed to place the sum of $525,000.00 ("Funds") into escrow for use by Vizcatran, as specified in this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the following mutual covenants, the parties agree as follows: 1. Vizcatran has agreed. to seek (on its own behalf or r through adevelopment entity to be created) funding frc;n the cr.s. Department of Housing and Urban Development ("HUD") for the purpose of building a HUD -financed elderly/handicapped project (the "Project") on the Property. 2. Creation of Escrow Accognt,. The Escrow Agent represents that it has established an interest -bearing escrow account ("Escrow Account") with Ocean Bank to carry out the purpose of this Agreement. 3. 12.4202it„ of Funds in Escrow Account, Simultaneously with the execution of this Agreement Swire has tendered. the Funds to the Escrow Agent in full satisfaction of any obligations of the developers of Claughton Island with respect to the provision of any low/moderate income housing. 4. Release of Developers cif Claughton Isand. The City of Miami hereby: A. Acknowledges and confirms that, by Swire depositing the Funds in the Escrow Account, the developers of Claughton Island have fully, completely and finally fulfilled their obligation to provide low/moderate income housing in the City of Miami pursuant to the applicable Development Orders for Claughton Island; and B. Releases the developers of Claughton island from all further obligations of any nature with respect to providing low or moderate income housing in connection with the development of Claughton Island. 5. D~isbugement ,from the Escrow Ag oun . The Escrow Agent shall disburse the Funds, and all earnings and interest which may have accrued thereon, as follows: A. Promptly after the execution of this Agreement, the Escrow Agent shall disburse Twenty -Five Thousand and No/Y00 Dollars ($25,000.00) to Vizcatran to be used by Vizcatran for the exclusive purpose of paying carrying costs of the Property, including, without limitation, real estate taxes, insurance premiums and interest payments on any existing mortgages which encumber the Property ("Carrying Costs"). B. Prior to the Termination Date (as hereinafter A defined), the Escrow tiga„c siiaii periodically diszursa `o Vizcatran any interest which has accrued on the Funds to be used by*Vizcatran for the exclusive purpose of paying Carrying Costs. C. On such date as Vizcatran or other appropriate developing entity obtains funding under a HUD commitment or other appropriate financing so as to be able to close the acquisition of the title to the Property by the developing entity and to commence construction of the Project ("Closing"), the Escrow Anent shall,' upon receipt of written notice from Vizcatran, Swire, and the City of Miami, immediately disburse: (i) One Hundred Seventy -Five Thousand and No/100 Dollars ($175,000.00) to Swire and (ii) Three Hundred Twenty -Five Thousand and No/100 Dollars ($325,000.00), plus any accrued and undisbursed interest to Vizcatran or its designee to be used for the exclusive purpose of clearing title to the Property, including, but not limited to, satisfying all existing mortgages on the Property. Upon such disbursement to Vizcatran and as a condition thereto, Vizcatran shall execute and record in the Public Records of Dade County, Florida, certain restrictive covenant(s) in the form attached hereto as Exhibit "A", and as more particulary set forth in paragraph 7 below. z D. If for any reason the Closing does not take place by the Termination Date, then on the Termination Date, the Escrow = Agent shall, upon receipt of written notice from Vizcatran, _ Swire, and the City of Miami, immediately disburse: (i) One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) to Swire, and (ii) Three Hundred Fifty Thousand and No/100 Dollars - ($350,000.00), plus any interest accrued after the Termination Date, to the City of Miami. As used herein, the term "Termination Date" shall mean December 31, 1989, unless by such date Vizcatran or other appropriate developing entity has obtained a written conditional commitment from HUD to finance the development of the Project on the --Property; in which latter event, the Termination Date shall be extended until the earlier -I _ of the date the HUD commitment expires or four (4) years ' following the date of this Agreement. The escrow agent is hereby .0-0124 directed, in any event, to immediately di.s.;urse the fuA--dS pursuant to clauses (i) and (ii) of this Paragraph d without any further written notice if such funds have not been previously disbursed by no later than four (4) years following the date hereof. E. Upon distribution of all of the Funds in accordance with the terms hereof, the duties and obligations of the Escrow Agent shall terminate. 6. igs andoblisations gl: Vizcatran. If for any reason the Closing does not take place by the Termination Date, then on the Termination Date, Vizcatran shall immediately pay to Swire the sum of Twenty -Five Thousand and No/100 Dollars ($25,000.00) as reimbursement for the disbursement made by the Escrow Agent to Vizcatran pursuant to paragraph 5A above. 7. Restrictive Qgvenants. Upon the disbursement by the Escrow Agent of the sum of Three Hundred Twenty -Five Thousand and No/100 Dollars ($325,000.00), plus any accrued and undisbursed interest, to Vizcatran or its designee, Vizcatran shall execute and record in the Public Records of Dade County, Florida, the Restrictive Covenant which is attached hereto as Exhibit "A". 'In the Restrictive Covenant, Vizcatran acknowledges the neighbors' concerns about the proposed height of the Project which will be constructed on the Property. In the event Vizcatran decides to apply for necessary variances to construct the Project, and if the City of Miami grants the necessary variances and the same become final and non -appealable, then Vizcatran will execute an Amended Restrictive Covenant. The Amended Restrictive Covenant will further limit the height of the Project provided that the same number of units that were accommodated in the original site plans for the nine (9) story Project can be accommodated in a building with less height. S. Duties, and Obligation of Escrow Agent. The Escrow Agent shall receive, administer and disburse the Funds as set forth in this Agreement. The Escrow Agent shall only be required toper€orm such duties and obligations as are expressly set forth herein, and no implied duties or obligations shall be read into 90- 0124 this 'Agreement. 9. Rights of Escrow Agent. The Escrow Agent shall not be liable for any mistakes of factor error of judgment, or for any actions or omissions of any kind unless caused by its willful misconduct or gross negligence. In the event of a dispute as to the proper disposition of the Funds, the Escrow Agent may bring a court action or proceeding to determine the proper disposition of such funds and, in such event, the Escrow Agent shall be fully protected in suspending all or part of its acts under this Agreement until a Final Judgment is rendered. 10. Successor Escrow went. The Escrow Agent may resign upon ten (10) days' prior written notice to Vizcatran, Swire and the City of Miami, provided that a successor has first been properly appointed and the successor has assumed all the obligations of the Escrow Agent hereunder. Vizcatran, with the prior written approval of Swire and the City of Miami, shall be entitled to designate a successor to the Escrow Agent. The Funds shall immediately be turned over to such approved successor who shall thereafter be deemed the Escrow Agent hereunder. If a successor Escrow Agent is not appointed within such ten (10) day period by Vizcatran and approved by Swire and the City of Miami, the Escrow Agent may petition the Circuit Court in and for Dade County, Florida, to name a successor. Upon acceptance of the Escrow Agent's resignation by Vizcatran (and Swire and the City of Miami) or by the court, the resigning Escrow Agent shall be released from any further obligation hereunder. 11. Eindincr obligations. The rights created by this Agreement shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of all parties to this Agreement. 12. Notige. Any and all notices referred to herein shall be sufficient if furnished in writing sent by certified mail, return receipt requested, to the respective parties at the addresses set forth above their signatures to this Agreement or such other address as they shall, from time to time, furnish to each other by written notice. 9o-oiz4 l� I 13. Hgadj]2gs. All paragraph headings i,i Agreemment are included for ease of reference only and shall not affect the meaning of the language in said paragraphs. 14. governing Law. This Agreement shall be construed and enforced according to the laws of the State of Florida. 15. Entire Agreement. This Agreement, together with the exhibit attached hereto, constitute the entire agreement and understanding among the parties. IN WITNESS WHEREOF, the parties hereunto have executed this Agreement on the day and year first above written. SWIRE PACIFIC HOLDINGS,, INC., a Delaware corporation 501 Brickell Rey Drive Suite 102 Miami, Florida 33131 By: Name: Title: VIZCATRAN, LTD., a Florida limited partnership 7380 N.W. 77th Court Medley, Florida 33166 By. •JUAN MANUEL DELGADO, Sole General Partner THE CITY OF MIAMI, a municipality 1100 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 By. Name: Title: OCEAN BANK, a state chartered bank 780 N.W. Le Jeune Road Miami, Florida - By. Name: Title: JJP1/a:5-25a 5993.5-502 or included for -ease of reference only v::c: meaning of the language in eaid paragraphs. 14. 9S2Y n ing„ law. This Agreement shall be construed and enforced according to the laws of the State of Florida, 15. Entire &qg moment. This Agreement, together with the exhibit attached hereto, Constitute the entire agreement and understanding among the parties. IN WITNESS WHE OF, the parties hereunto have executed t:! ie Agreement on the day and year first above written. JJPl/a:5-25a 5993.5-502 SWIRE PACIFIC HOLDINGS, INC., a Delaware corporation 501 Brickell Kay Drive Suite 102 Miami, Florida 33131 By: ' Nam STEPHEN L. OWF-45 Title: VICZ PRESIDENT VIZCATRAN, LTD., a Florida limited partnership 7380 N.W. 77th Court Medley, Florida 3 6C"'N r� By: JUAN EL DRLGAM, Sole General Partner THE CITY OF MIAMI, a municipality 1100 AmeriFirst Building One Southeast Third Avenue Miami, lorida 33131 , ii Name JqR L. F RNANDLZ Tit XCity L. ey OCEM BANK, a state chartered bark 780 Llt�r eu�ns Road Miama 8�,t �.�r..✓,. N 8: RICHARD ADAMS Tit Sr. Vice -President 90-0124 E Menges Noft. ft ap"" ArMte IN memw 10106111ma•t Woo bdadd) aIKMtNOL.t PORM IT ...................................... Mortgage Note F ldLaml .. ........... Florida......JaAuary............................... t9..9.o. ►Olt VQIIIE RImVW Hne nrAW*gmd promises to pay to the order of ... .0 t;y...»Af...Miami.................................. .................................................................. »......... ».......................................... «...................................................... Ow orimicipal amm of FIFTY THOUSAND TWO HUNDRED an THIRTY EIGHT d 21 /la0-------- ........ ....... ....... .... ....... ........ ...«...Odlars togsom with infer" thereon N tM refe of ....... Q........ par Cant par enrum (ran.......XaQQCXm= »........................................ w*l artur . been Windpol and fnM+asf being papeble in lawful Money of the United States, asdn prindpol ern and infew psnobh in in:talh ants aL follows, One payment of porimipal due immediately in the event the Closing does not take place by the te�&i©n date. Such ins 81k*w paysaeruts shall be atnplied first to tkt inw W accruing under tht terms of this note and there to a reduction of the principel iendabtodtom The ankers mW andarsrs of this note hwow apse to waive demand, notice of non•po-aw* and prolISSt, aid in the mein 1 leaf shelf be branuglnt ter the collection hoeof. or the some has to be collected upon durAM of an attorney, to pay reasonable anorney's fees for slaking wjO collection. AD pown a its berg. under shall beer Woes! at the raft at ...... a— permo per amwm from trowity until paid. The area is secured by a mod" of wen date herewith and is to be c*"R ed and andarced a corAng to the Isws of dte Mate of ftoriodc upon defwlt in ftw peymmjt of prinapel andlor kfty t when *a, " whole snra of Sri =iW end Woo nnaaining unpaid shall, of the option of the holders, t wom h otdiatefy der and peyablo. faikn fo auerdse this option 9011 not CwWihde a weiver of the right to "Wcise Hut same in the eveeM of subaagwnt deleult. Payableat ...... .......... ........ ...»............................ «...... ............................ _.................. ........................ ............. .... ..« ........... »...»...............».»».......»....ISEAi1 ......».................. »............................. ..... »............. ........ ........................ I......... .................. _...... ......... »..... »............ _.»..... ......... ........»«.»..�... or such other piece as shall be dal insfed by the holder of this note in writing. ..............................................»......................_...«......»« .....« .......(Sf:Alj 90--01.24 r . �I STATE OF FLORIDA, County of de SS. 1, an officer authorized to take acknowledgments of deeds according to the laws of the State of Florida, duly qualified and acting, HEREBY' CERTIFY that Juan Delgado, as,$engral 2atner if Vizcatraa. Ltd. to me personally k-no-.^ this day personally appeared and acknowledged before one that }_..... executed the foregoing mortgage, and I FURTHER CERTIFY that I know the said persona...._._ making said acknowledgment to be the individuaL described in and who executed the said mortgage. IN WITNESS. WHEREOF, I hereunto set my hand and official seat at said County and State, is day of a. D. 1g- My commission expires: 0 Cr tp O to •et 0 Notary Public. 9a-0124 • 1. To pay all and singular the principal and interest and other sums of money payable bg virtue of said promissory note_— and this deem, or either, promptly on the days respectively the same severally become due. S. To pay all and singular the taxes, assessments, levies, liabilities, obligations, and encurn. branees of every nature on said described property, each and every, and if the same be not prompt. ly paid the said Mortgages...., its __U" , legal rspresmntativot or assigns, tnay at any time pay the same without waiving or affecting the optic» to foreclose or any right hereunder, and every payment so mad# shall bear interest from the date thereof at the rate off cent. per awsw% J. To pay all and singular the carts, charges and expenses, including iawyWs fees, reason• ably incurred or paid at any time by said Mortgages-, its __.heirs, legal representative or assigns, because of the failure on the part of the said Mortgagor, its heirs, legal represerntartivss or assigrns to perform, comply with and abide by each and every the atipulat m, agreements, conditions and covenants of said promissory note_ and this deed, or either. grad every such payment shall bear interest from date at the rate off_ per cent. per annum. in a camper 4Fcompaniss to be approved by iNd, gortgagea_, and the policy or policies held by ayable to said Mort. gages- -, any sum of money becomes payable heirs, legal reprea or assigns, and in the event such policy ieies, the Mortgagea- , heirs, legal representative signs, shall have the option to receive and apply the lama on account of the iruieb ass hereby a or to permit the Mortgagor to receive and use it or any part t of for other purposes, witho eby waiving or impairing any equity, Hera or righ or by virtue of this mortgage, and may p and pay for such insurance there° fwithout waiving or of f Ecting the option to f oracloa any rightach and every such payment shall bear interest from date at the rate of 5. To permit, commit or suffer no warts, impairment or deterioration of said property or any part thereof. 6. To perform, comply with, and abide by each and every the stipulations, agreements, con• ditiOm and covenants in said promissory note_., and in this deed set forth. 7. If any of said sums of money herein referred to be not promptly and fully paid within 1s A^ys next after the same severally become due and payable, or if each and every the stipulations, agreements, conditions and covenants of said promissory note-- and this deed, or either, are not fully performed, complied with, and abided by, the said aggregate sum mentioned in said promissory note_._ shall become due and payable forthwith or thereafter at the option of the Mortgagee_._, l' is heirs, legal representatives or assigns, as fully and completely as if the said aggregate seine of = 2FACx7SAM Iwo HLNWW 7HIIUt EICHr 21/, M were originally atipuloted to be paid on such day, anything in said promissory note_ or herein to the contrary notwithstanding. . IN WITNESS WHEREOF, the said Mortgagor_, hereunto act. hand ---and sealhe day oared year first above written. VIZCATRAN, LTD. Signed, sealed and delivered in presence of us: (Sea) JigN i3F .aC�AM tSew, 7710' hulmiitrue pnpan-1 l y: 1�/,lrrx� 90—O 24 A TO HAVE AND TO HOLD the same together with the tenements, heredizzaments, and appur- tenances, unto the said Mortgagee-, and its heirs and assigns, fee simple. AND the said Mortgagor, for itself n its heirs, legal representatives and assignR does---,. venant with said Mortgagee its heirs, legal representatives and assigns that said Mortgagor.., i c indefeasibly seized of said land in fee simple that the said Mortgagor s —fua power and lawful right to convey said land in fee 8im171e as aforesaid; that it shall be lawful for said Mortgagee_.., its h, legal represeaita- tives and assigns, at all times peaceably and quietly to entar upon, hold, occupy and enjoy said lard; that said I=d is free from all encumbrances; that said Mortgagor_.., its hairs and legal representatives, will make Such further ass "We to p",fset the fee simple title to said land in said Mortgagee., it-s --heirs, legal representatives and assigns, as may reasonably be required; and that said Mortgagor doehereby fey warrant the title to said land and will defend the same against the lawN claims of all persons whomsoever. PROVIDED ALWAYS, that if said Mortgagor._, t:Q hare, legal representatives or assigns shall pay unto the said Mortgage«_., its regal representatives or assign& the certain promissory note-, of which the following in words and figwes._igtrue cop —IL, to -wit: and shall perform, comply with and abide by each and every the stipulations, agreementscox- ditions and covenants of said promissory notend of this deed, then this deed and than estate thereby created shall cease and be null and void. AND the said Mortgagor, for i to aL_ and _ it a - heirs, toga& representatives and assigns, hereby covenant— and agree: as follows: O-0124 J MORTGAGE DEED RAMCO'S FORM 6 w411B lilvri Of d,*I, Zzec-aced Ou W A.D 1990 b Vizcatran, Ltd., a Florida Limited Partnership hereinafter called the Mortgagor--. to The City' ,of Miami, a municipality hereinafter called the Xor*aos*----. W12WE&IMTH, That for divers good and valuable considerations, and also in consideration of the aggregate em %ang in the promissory not&— of even daft herewith, hereinafter da. scrZed, as said.Mortgagor-d= grant, bargain, sell, alien, remiss, roleare, convey and confirm unto the said Mortgagee, its --leirs and assigns in fee simple, all the certain tract of land, of which the said Mortgagor in now seized and possessed, and in actual pas - Session, situots in Dade ----County, Staft of FkYW described as follows: 124 .90-0 —,PIC% 1.4 E ri 14:22 pp1y,­-.1'r dqlb�- NAiANk M- -4VAN N-..' , lirILGAVO 6 .v : .:.Ap S. Olt KO NO. 100-280844-64 8-0004 oo NO Om 89.. 11, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -Ptea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., ............................ ; r4itoo .. . . . . . . . . . . . . . . . .......... .100'.6 6 .......................... absove NC%LO AS of Ocroller 26, 14 AN) A C C h- PT,- 1) -a MaHft ;Amited paitTivi-r.-ni 1.'.A R-N N.V.; Too.- -4 U 1tv., A I w I A vs I W.,•1.wr. % # I i. P. or - op 41. .01. 4 14&0 NV #OIpr? %J:.W* It Joe., SW,4, -90-OJL24