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HomeMy WebLinkAboutR-88-1223`r { R280LUT1014 No _ ' no.nM ltrToN.. WITH ATTACHRENT t AlUTHOR12" s as,;sei hment ' it cember MEETING OF,�.,.11l > ABC� 30 1980 'ION Now, IV MA T CITY Enclosed for your review is a copy of the proposed Settlement Agreement in the case of William S. Brickell, et al'. vs. City of Miami, et al. which we have just received from the Brickells this morning. (See Attachments A).. This Settlement Agreement includes changes recommended by --you during Tuesday's City Commission meeting and negotiated on Wednesday, December 28, 1988. Also enclosed.are agreements provided by the 15 Brickells and Williams Group pursuant to the City request disclosure. =- Discussions with the BrickellIs attorneys and Group attorney concerning issues raised at Tuesday's. meeting .may �# y be summarized as follows: F,t 1. As.to the relocaxion of the trees toR ` the iverpo nt .. Property. the Williams Group will provide a.letter that '.the :City. may have: the trees on the existing site -for relocation.',jat the pNA City's ex ense. The Williams Grou would not -agree to a,covenant F,t, in; .the •deed from the ;Brickells regarding this. (See Attachment � B' letter ,;:from White & Case dated, December 28,. 1988 2 As to the Baywalk and. a fifty foot setback, .the Will ams Group would not agree to a covenant '`in..the deed :from -the ; f Brickells, but would agree to writing a letter that the Williams Group is not exempt from the applicable Charter 'and Zoning , Yk Ordinance provisions. (See Attachment B;. letter. from White & Case dated December.28, 1988). 3. Language was inserted in ,the•. Settlement Agreementa v xv ;paragraph ;13 that the City and the erickells would no`t pay any `ztr closing costs,.°ta r „= s 4. Z,No a reement was ~reached with regard toy }ceepi9 gr 1K , : e perk open': ;after' :`the ;Bri'ckells and the t�TIa ams Group take } awnership. , The ,;Williams.; Group would' not agree teat ;a statetggn, , t; u about'�a zpn1ng, change. should be placed in the Aq rPemnt ;becu , h:e;Cty` may not engage in contract zoning: y SP K,.7 1 i r f.. ' ,, l o69 i� d nn.jr &i i •{ 11- r4,h �'9qT��} VA, [• p 6h V 51 E a � �L . tT• }t ' • 1 t � i t f e Es! SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT made as of this day of 11 1988 between The City of Miami, a municipal corporation of the State of Florida (the "City") and Beatrice A. Brickell, James B. Brickell, William B. Brickell, E. Langdon Laws, Trustee, Edward Sanders, John Sanders, Paul Sanders, Archie K. Purdy and Mary G. Snyder (collectively, the "Brickells"). RECITALS A. William B. Brickell, James B. Brickell and Beatrice A. Brickell vs. City of Miami and Cesar H. Odio, in his capacity as City Manager of the City of Miami, Case No. 88-0230-CIV-HOEVELER (the "Lawsuit") is presently pending in the United States District Court, Southern District of Florida, Miami Division. In addition, Archie K. Purdy and Mary G. Snyder have intervened as party -plaintiffs in the Lawsuit. The Lawsuit involves, among other things, a disputed issue as to the title to that certain real property situated east of Brickell Avenue at approximately S.E. 5th Street, Miami, Dade County, Florida, more particularly described as Parcel 1 and Parcel 2 in Exhibit A attached hereto (collectively the "Brickell Properties"). B. Parcel 1 of the Brickell Properties was dedicated by Mary Brickell as a private family burial ground by instrument recorded in Deed Book 323 at Page 298 of the Public Records of Dade County, Florida. Parcel 2 of the Brickell Properties was deeded to the City by Maude E. Brickell, Belle C. Brickell and Alice A. Brickell by deed recorded in Deed Book 528, Page 56 of the Public Records of Dade County, Florida for use as a public park (known as the "Brickell Park"), with an arguable right of reversion to the Brickells in the event the property ceased to be used as a public park. The Brickells represent that they are the sole legal heirs of Mary Brickell, Maude E. Brickell, Belle C. Brickell and Alice A. Brickell. C. There is a justiciable dispute as to whether a reversion of the title to the Brickells has occurred with respect to Parcel 2; and as to Parcel 1 there is a justiciable issue as to whether title is vested in the City or the Brickells. D. In order to settle the Lawsuit and assure the continuance of a Brickell .Park located on Brickell Avenue, Miami, Florida, the City and the Brickells are agreeable to the establishment of a new Brickell Park on that certain property situated on the south bank of the Miami River in Miami, Dade County, Florida, more particularly described in Exhibit B attached hereto (the "Riverpoint Property"), to be accomplished as set forth herein. E. The Williams Group, a Georgia general partnership, is the contract vendee of the Riverpoint Property pursuant to a Sales Agreement (the "Sales Agreement") dated as of September 12, 1988 with 97807 Canada, Limited/LTEE, a Canadian corporation and 392208 Ontario Limited, an Ontario corporation (collectively, the "Sellers"). F. The Williams Group and the Brickells have entered into an agreement dated as of December , 1988 (the "Exchange Agreement"), a copy of which is attached as Exhibit E hereto, pursuant to which The Williams Group has agreed to cause the conveyance of the Riverpoint Property to the City in exchange for the conveyance by the Brickells of the Brickell Properties to The Williams Group, all subject to settlement of the Lawsuit pursuant to the terms of this Settlement Agreement. ATTACHMENT A 4 of 69 QQ �. V 7"^ G. in furtherance of the settlement of the Lawsuit, the Brickells are agreeable to (1) causing the Riverpoint Property to be conveyed to the City for use as a public park and (ii) donating to the City the sum of $1, 815, 000 to be used by the City as hereinafter set forth; provided that a final judgment is entered in the Lawsuit determining that the Brickells are the fee owners of the Brickell Properties as set forth herein and that closing of the transactions contemplated in the Exchange Agreement occurs. NOW, THEREFORE, in consideration of the foregoing premises, the sum of $10.00 and other good and valuable consideration, receipt of which is hereby acknowledged, and in the settlement of the Lawsuit, the parties hereby agree as follows: 1. The above recitals are true and correct. 2. The Brickell and the City hereby agree to the entry of a consent judgment in the Lawsuit in the form of Exhibit C attached hereto, which judgment is herein referred to as the "Final Judgment". 3. Subject to the entry of the Final Judgment and the closing of the transactions contemplated in the Exchange Agreement, the Brickells hereby agree to cause good, marketable and insurable title to the Riverpoint Property to be conveyed to the City (the event of such conveyance being herein referred to as the "Closing") by Deed in the form of Exhibit D attached hereto, and donate at Closing the cash sum of $1,815,000 (the "Cash Donation") to be used by the City as set forth in the next succeeding paragraph. 4. The City shall immediately deposit the Cash Donation into an interest bearing Special Revenue Fund, to be held and used as follows: (a) Immediately upon Closing, $500,000 shall be transferred to the City's general fund to be used for other City Parks improvements; b) The balance of the Cash Donation shall be held in an interest bearing Special Revenue Fund until the funds are needed to demolish the existing buildings on the Riverpoint Property, to plan and construct the new park on the Riverpoint Property and to move the Brickell Mausoleum to the new park. Such funds shall be invested in that interest bearing Special Revenue Fund account maintained by the City in the ordinary course of its business which earns the highest rate of interest; c) Two years from the date of establishment of the Special Revenue Fund, The Williams Group will receive an amount equivalent to two years interest actually earned on the balance of the Cash Donation remaining in Special Revenue Fund* . thereafter the interest that accrues on the Cash Donation will be the property of the City to be held in the Special Revenue Fund and used as set forth below; d) The Cash Donation plus any funds received as an award in any condemnation proceedings, or conveyance in lieu thereof, taking a Y g portion of the Riverpoint Property in connection with the ` construction of the new Brickell Bridge (the "Award") shall be used for the following purposes only:? L, y' 5 of 69 * ; � (i) demolition of: the existing buildings on the Riverpoint Property, (ii) planning and construction of the new Brickell Park on the Riverpoint Property for an approximate sum of $1,256,262, (iii) relocation of the Brickell Mausoleum from the present Brickell Park to the new Brickell Park, (iv) planning and construction of an entrance to the new Brickell Park from the Brickell Bridge, (v) the City's attorneys fees in connection with the negotiation of this Agreement, the Closing hereunder and the items described in items (i) through (iv) above, (vi) any balance in the Special Revenue Fund shall be used for maintenance of the new Brickell Park. Any Award shall be immediately deposited in the above mentioned Special Revenue Fund, with the interest thereon to be held in the Special Revenue Fund and used as set forth above. The City at its cost shall complete construction of the new Brickell Park as soon as is reasonably practical using due diligence; provided that (i) the City shall not be obligated to expend any monies in such construction in excess of $1,256,262 and the Award (including the cost of the demolition, relocation of the Brickell Mausoleum and the entrance mentioned in items (i), (iii) and (iv) above and the City"s attorneys fees mentioned in item (v) above) and (ii) it is anticipated that construction will not be commenced earlier than two years from the date of Closing. 5. The new Brickell Park constructed on the Riverpoint Property shall be known and used in perpetuity as the "Brickell Park", and an appropriate plaque or monument commemorating the William and Mary Brickell family shall be placed within the park's boundaries. The Brickell family mausoleum (the "Brickell Mausoleum") presently located on the Brickell Properties shall be relocated by the City at its cost to, and become a permanent part of, the new Brickell Park located on the Riverpoint Property; provided, however, if the condition of the mausoleum is such that notwithstanding the exercise of reasonable care by the City, damage occurs in the course of relocation such that it is impractical to repair and use the mausoleum on the Riverpoint Property, then the City shall not be responsible for such damage and the mausoleum shall be demolished and disposed of by the City. The City agrees to use all reasonable care in the relocation, or attempted relocation, of the mausoleum. 6. The City and the Brickells agree that the City shall have the right to locate or cause to be located a restaurant and other structures and concessions for public use on the Riverpoint Property to encourage the utilization of the park; provided that any restaurant constructed on the Riverpoint Property shall not occupy more than 15% of the square footage of the Riverpoint Property land existing on the date hereof prior to any condemnation. 7. a) The Brickells shall deliver to the City within 25 days after entry of the Final Judgment a title commitment and a land survey of the Riverpoint Property prepared by a licensed surveyor and the City agrees to review such title commitment and survey and notify the Brickells in writing of -3- 88- t223 6 of 69 r any defects, objections or encumbrances contained therein which affect marketability of the title ('Title Objections") within ten (10) days after the receipt of such title commitment and survey. The City also agrees that in the event the City raises Title Objections with respect to the title commitment and/or survey, and the Brickells are unable to cause such Title Objections to be cured within a sixty (60) day period, then the City shall, within fifteen (15) days after the expiration ofsuch sixty (60) day period, notify the Brickells in writing of its election to either (i) waive any Title Objections and accept title in its then existing condition or (ii) terminate this Agreement. b) The Brickells shall furnish the City within 85 days after City Approval but no later than March 25, 1989, a Class 2 environmental audit of the Riverpoint Property, and in the event the audit discloses toxic materials, the City shall give written notice to the Brickells within fifteen (15) days after receipt of the environmental audit that either (i) this Agreement is terminated, or (ii) the City waives any objection to the presence of such toxic materials. c) It is understood and agreed that the City shall be deemed to have waived any Title Objections and any objection to the presence of the toxic materials described in the environmental audit if no written notice terminating this Agreement is given by the City to the Brickells within the fifteen (15) day periods provided in subparagraph 7(a) and 7(b) above. S. It is understood and agreed that the City shall have the right to inspect all documents referred to and made a part of this transaction. 9. This Agreement, together with all Exhibits hereto, shall -not be admissible in evidence in any litigation between the City and the Brickells involving any dispute as to title to the Brickell Properties. 10. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, and their respective heirs, personal representatives, successors and assigns. 11. Any notice, election, or other communication required hereunder shall be delivered by hand or by certified United States mail return receipt requested, postage and charges prepaid, to the following addresses: )4 To the Brickells: Beatrice A. Brickell, Esquire Sharretts, Paley, Carter & Blauvelt, P.C. 1707 L Street, N.W. Washington, D.C. 20036 with a copy to: Phillip G. Newcomm, Esquire Shutts & Bowen 1500 Edward Ball Building 100 Chopin Plaza - Miami Center Miami, Florida 33131 and Dwight Sullivan, Esquire 3110 Southeast Financial Center Miami, Florida 33131 -4_ 7 of 69"'1: rt r To the.City: City of Miami 3500 Pan American Drive Miami City ball, Second Floor Miami, Florida 33133 Attention: Cesar H. Odio City Manager With copy to: City of Miami Attorney 1100 Amerifirst Building One Southeast Third Avenue Miami, Florida 33131 Attention: Jorge L. Fernandez 12. Each of the parties hereby represents and warrants to the others that it has not consulted, dealt or negotiated with any broker, salesman, finder or agent in connection with the transactions which are the subject of this Agreement, other than Cushman & Wakefield (the •Broker*). The Sellers shall be responsible for the payment of the commission, if any, which may be due to Cushman and Wakefield, as provided in the Sales Agreement. 13. The Closing shall take place at 9:30 a.m. at the office of White & Case, Southeast Financial Center, 200 South Biscayne Boulevard, Miami, Florida 33131. The Brickells will cause an executed owners title insurance policy to be delivered to the City as soon as practicable after Closing. The date of the Closing shall be on a date to be mutually agreed upon by the Sellers, The Williams Group, the Brickells and the City, but in no event later than April 20, 1989. It is understood and agreed that neither the City nor the Brickells shall pay any closing costs in connection with the closing of the transactions contemplated in the Exchange Agreement and this Settlement Agreement and that all such closing costs shall be paid by The Williams Group; provided however each party shall pay its own respective attorneys fees in connection with such transactions, subject to the provisions of Paragraph 4(v) hereof. 14. The Brickells agree to use their best efforts (without obligation of commencing any litigation or the expenditure of any funds other than the payment of the Cash Donation to the City at Closing) to consummate the transactions contemplated in the Exchange Agreement and this Settlement Agreement. It is understood and agreed that the funds for the Cash Donation will be provided as a part of the consummation of the transactions contemplated in the Exchange Agreement and there shall be no obligation of the Brickells to make such Cash Donation unless the funds therefor are received by the Brickells in the closing of the transactions contemplated by the Exchange Agreement. It is further understood and agreed that neither the Brickells nor the City shall be liable in damages to the other for the failure of the Closing to occur for any reason whatsoever (including without limitation, a defect in the title to the Brickell Properties or the Riverpoint Property or the failure of the closing of any of the transactions contemplated by the Exchange Agreement). In the event the Brickells fail for any reason to cause the conveyance of title to the Riverpoint Property to the City and donate the Cash Donation prior to April 20, 1989 or if this Agreement is terminated for any reason whatsoever, then the Brickells shall donate Parcel 2 of the Brickell Properties to the City by Special Warranty Deed containing the same conditions and restrictions and provisions set forth in the deed referred to in paragraph B of the above recitals and the Brickells shall reconfirm the original dedication of Parcel 1 of the Brickell Properties as a private burial ground under the dedication -5- 8 of 69 88-11223 instrument referred to in paragraph8 of the shove reeitalas the intent being to return the parties to their original positions prior to the execution of this Agreement. 15. The term "City Approval" shall mean the date upon which the City of Miami Commission's approval of this Settlement Agreement becomes effective. 16. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. William B. Brickell James B. Brickell Beatrice'A.,Brickell , E. Langdon Laws, Trustee Edward Sanders U John Sanders p 3M Paul Sanders Archie R. Purdy s z 131 } li 1 t Jt ,Mary'G. . Snyder AL ` CITY OF MIAMI FLOR tSA Ihicipa1 corporation of t' Ats of Florida, in t wnty of Dade city Manager =F f (i 4' ('V" EX14Ig1T A Parcel 1 Beginning at a concrete monument set at the intersection of the Easterly line of Southeast First Avenue and the Northerly line of Southeast Fifth Street, which monument is also the Northwest corner of the tract herein described; thence Easterly along the prolongation of the Northerly line of Southeast Fifth Street, and at an angle of 900 - 009 - 30" with (Brickell Ave.) Southeast First Avenue, for a distance of 233.52 ft. to a concrete monument; thence North easterly along the arc of a curve of 25.0 ft. radius, for a distance of 31.01 ft. subtending an arc of 710.041 .35" to:a concrete monument; thence with the arc of a reverse curve of 40 ft. radius, for a distance of 85.45 ft. subtending an arc of 1220-23' -40" to a concrete monument; thence Easterly parallel with and 38.92 ft. North of the .prolongation of the Northerly line of Southeast Fifty Street for a distance of 294 ft. more or less, passing through a concrete monument at a distance of 285 ft. to the shore line of Biscayne Bay; thence South along the shore line of Biscayne Bay to a point where a line parallel with and 50 ft. South of the last described line intersects the said shore line of Biscayne Bay; thence Westerly parallel with and 21.08 ft. South of the prolongation of the Northerly line of Southeast Fifth Street for a distance of 298 ft. more or less, to a concrete monument; thence continuing Westerly along the,arc of a curve of 40 ft. radius, the radius point of which is the same as that of the last previously described curve, for a distance of 64.79 ft. subtending an arc of 920 -439 -45" to a concrete monument; thence along the arc of a reverse curve of 25 ft. radius, fbr a distance of 27.97 ft. subtending an arc of 410 -29, -40" to a concrete monument; thence Westerly parallel with and 16 ft. South of the prolongation of the Northerly line of Southeast Fifth Street for a distance of 242 ft. to the Easterly line of Southeast First Avenue, and thence Northerly along said East line of Southeast First Avenue for a distance Of 16 ft. to the point of beginning. 11 of 69 , �b Patcel 2 Beginning at a concrete monument at the intersection of the East line of Brickell Avenue with the Northerly line of S.E. fifth Street, according to plat recorded in Plat Book 8, at page 93, of the Public Records of Dade County, Florida; Thence run South 760 39' 35" East, along the said Northerly line of said S.E. Fifth Street produced Easterly, for a distance of 233.52 feet to a concrete monument; ; Thence Northeasterly along the arc of a curve with a radius of 25.0 feet, through an arc of 210 04. 350, for a distance of 31.01 feet, to a concrete monument; Thence continue Northeasterly among the arc of a reverse curve with a radius of 40.0 feet, through an arc of 1220 23, 40", for a distance of 85.45 feet, to a concrete monument; Thence South 76° 394 35" East, for a distance of 321.10 feet, to a Point in the U.S. Harbor line along the West side of Biscayne Bay; Thence South 50 376 19" West, along said • Harbor line, for a distance of 171.54 feet, to. the Southeast corner of the tract herein described. Thence North 760 394 350 West, parallel with and 141.08 feet distant from the said Northerly line of said S.E. FIftb Street: produced Easterly, for a distance of 670.29 feet to a concrete monument in the Easterly line of Brickell Avenue; a Thence North 130 206 55" East, along said a ' Easterly line of said Brickell Avenue, fora�� distance of 141.08 feet, to the point of " beginning. G W.r. a �, RCS : cma VVV A � r� 12 of .,i r I ra _Z 7 ' _'6. -1 6: 14 -_' .4": wM I ttL tpSe=I'IAmI Begin at the intersection of the "overly prolongation of the Bona Line of BB 3th $%sent with the Bastarly lisp of Brickell Avenue, accardiag to the plat of BktCl=LL POiB=, reeorded in Flat Book B at Page 34 of the lublia Xeeesds of Dade County, Piorl"I thence rue wortherly on the last• erly boundary line of Brickell Avenue IBl Second Avenue bridge approach) across the Muni Ameso according to Con• desanation Proceedings recorded July li, 1121, in Circuit Coum Minute Book 34 at Page 2909 of the Public secosds of Dade County, Plesidas along a sircuLar curve to the left, concave to the Kest, havipg a radius of $33.21 Beet• a can• tral angle 13.13.30', for as are distaace of 141.44 goat, to the Point of Taageacyt thence wm%Lauo aleag the Uses boundary line of $aid Southeast $tooad Avenue bridge ap- proach across the Huai River, along a line whose hearing is Borth 01031/350 West, toe a distaasa of 112.75 test, to a points thence run Northerly, tastesly and Soutbatly along a circular curare to the sight concave to the Seeth, hawing a radius of 33 test* a coastal angle to 233.09100• through an arc distance of 143,65 teat• is she point of aaverae Curvet thence run Southwesterly sad $e204217 aloe{ a cis- colas curve to she Sett, comeave to shin Uas%, having a ra- dius of 33 feet, a coastal angle of S360940060 thresgs an arc distance of 33.09 leer to the poLat at langoaett thence run South 81052/350 last, aloe9 a line parallel to and 40 feet tastorly froin the tasterly been" line of said Southeast Second Avenue bridge approach across the Nisei River, measured at right angles taorete, for a diataaes of 35.33 feet to the Potat of Carvel thence tea Southerly an a line parallel to sad 40 toot tasdorly trod, *assured at a normal to the tasterly bound"? line of said Southeast Second Avon%e bridge approacb, access the Nia" Aivot, along a curve to the loft, concave to the Waste having a radius of 572.21 feet, a central eagle of 1301313000 through an are dLstanco of 15=.07 tent to a point on the NOrth boundar line of the Private Drive as shows on, the afores&Ld Plat of UA1CIZU POSMT# thence sun Morib 110391550 Mast, along a worth boundary line of said Private Drive, for a distance of 40 feet to the POUT Or 29C MMING. 3: r r 335.356 5745 FAGr,03, ;t 14 of 69 fix UNITEb STATES DISTRICT COURT SOUTHERN DISTRICT Or FLORIDA CASE No. 88-0230-CIV-HOEVELE9 WILLIAM B. BRICKELL, DAMES B. BRICXELL, BEATRICE A. BRICXELL, MARY SNYDER, and ARCHIE X. PURDY, Plaintiffs, VS CITY OF MIAMI, et al., Defendants. The parties bexeto have entered into the attached -. settlement agreement Tesolving their disputes in this cause. and, in accordance therewith, request the entry of the attached• juldgment in.this cause. JORGE L. FERNANDEZ, city Attorney'SHUTTS & BOWEN, ATTORNEY FOR DEFENDANTS, ATTORNEY FOR PLAINTIFFS, CITY OF MIAMI and CESAR VIDIO, WnMIAM B. BRICKELL, 1100 AmeriFirst Building DAMES B. BRICKELL, and One Southeast Third Avenue MTRTCE BRICKELL Miami, Florida 333.31 pin 100 Cho Plaza .1500 Edward Ball Building. Miami, Florida 33131 BY: BY: .,Z JORGE L.FERNANDEZ SALLY M. RI CHARDSON '2 DWIGHT SULLIVAN, P.A. ATTORNEY FOR PLAIMITF- INTERVENORS, MARY SWMER and ARCHIE K. PURDY 3110 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33231-2388 BY:, ij t DW IGHT SULLIVAN P.A. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 88-0230-CIV-HOEVELER WILLIAM B. BRICKELL, JAMES B. BRICKELL, BEATRICE A. BRICKELL, MARY SNYNDER, and ARCHIE K. FURDY, Plaintiffs, line parallel with and 50 ft. South of the last described line intersects the said shore line of Biscayne Bay; thence Westerly parallel with and 21.08 ft. South of the prolongation of the Northerly line of Southeast Fifth Street for a distance of 298 ft. more or less, to a concrete monument; thence continuing Westerly along the arc of a curve of 40 ft. radius, the radius point of which is the same as that of the last previously described curve, for a distance of 64.79 ft. subtending an arc of 920 -43' -45" to a concrete monument; thence along the arc of a reverse curve of 25 ft. radius, for a distance of 27.97 ft. subtending an arc of 410 -29' -40" to a concrete monument; thence Westerly parallel with and 16 ft. South of the prolongation of the Northerly line of Southeast Fifth Street for a distance of 242 ft. to the Easterly line of Southeast First Avenue, and thence Northerly along said East line of Southeast First Avenue for a distance of 16 ft. to the point of beginning. and seek to enjoin the sale of said property by the City. In Count III of the Verified Complaint, Plaintiffs claim fee simple title to that certain property ("Parcel 2") is'day of :> r. s NITED STATES DISTRI t .0, 1',. s E'= :h, ._ r .:try. lly M I Richar&6on,r Esc rge�L Fernandez;�.Esgi ght,Sullivan .,Esquire 82F) THIS INDENTURE, made this day of , 1989, between 97807 CANADA, LIMITED/LTEE, a Canadian corporation, and 392208 ONTARIO LIMITED, an Ontario corporation, or its successors or assigns by virtue of the order of the Honorable Prudence B. Abrams, Judge of the United States Bankruptcy Court, Southern District of New York, doing business as Atlantis on Brickell (collectively, the "Grantors") and THE CITY OF MI MI, FLORIDA, a municipal corporation of the State of Florida, in the County of Dade, whose address is 3500 Pan American Drive, Miami City Hall, Second Floor, Miami, Florida 33133 (the "Grantee"). WITNESSETH : That said Grantors, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable considerations to said Grantors in hand paid by said Grantee, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said Grantee, and Grantee's successors and assigns forever, the property situate, lying and being in Dade County, Florida, more particularly described in Exhibit A attached hereto and made a part hereof ("Property"), and said Grantors do hereby fully warrant the title to the Property, and will defend same against the lawful claims of all persons whomsoever. This conveyance is subject to restrictions, conditions and limitations of record, if any. This conveyance is subject to certain covenants, restrictions and obligations of Grantee and its successors and assigns which covenants and restrictions and obligations are hereby imposed by Grantors as covenants and restrictions running with the title to the Property hereby conveyed. The covenants, restrictions and obligations so imposed are the following: 1. The Property shall be and is hereby dedicated to the perpetual use of the public for park purposes only, which park shall be perpetually named "Brickell Park". - 2. The Brickell Park on the Property shall permanently include, without limitation, the Brickell family mausoleum, which shall be relocated from its present location, and an appropriate plaque or monument commemorating the William and Mary Brickell family; pro- vided however, if the condition of the mausoleum is such that notwithstanding the exercise of reasonable care by Covenantor, damage occurs in the course of relocation such that it is impractical to repair and use the mausoleum on the Property, then Covenantor shall not be responsible for such damage and the mausoleum shall be demolished and disposed of by Covenantor. Covenantor agrees to use all reasonable care in the relocation, or attempted relocation, of the mausoleum. 21 of 69 3. Grantee will perpetually maintain the landscaping, mausoleum (if relocated to the property pursuant to paragraph 2 above and subject to normal wear and tear with the understanding that the condition of the mausoleum may eventually require removal of same) and other improvements of the Brickell Park located on the Property at Grantee's sole cost in accordance with Grantee's prevailing standards of maintenance. 4. Grantee shall have the right to locate or cause to be located a restaurant and other structures and concessions on the Riverpoint Property to encourage the utilization of the park by the public; provided that any restaurant constructed on the Riverpoint Property shall not occupy more than 15% of the square footage of the Riverpoint Property land existing on the date hereof prior to any condemnation. S. If prior to October 1, 2077 any of the covenants, restrictions or obligations set forth in the above paragraphs 1 through 4, inclusive, are not performed or complied with by Grantee, and such non-performance and _ non-compliance continues for a period of 60 days or more after written notice thereof from a representative of the Brickells, then (i) title to the Property, and all of the improvements located thereon, shall automatically be transferred to and vest in the Brickells in undivided interests equal to the percentages for such persons set forth in Exhibit B attached hereto, and their respective heirs, personal representatives, successors and assigns and (ii) all right, title and interest of Grantee in the Propdity and such improvements shall thereupon terminate and cease. The provisions set forth in the preceding sentence of this paragraph 5 shall terminate and be of no further force and effect on October 1, 2077. This paragraph, and the termination of the first sentence thereof on October 11 2077, shall not affect the continuing validity and enforceability of the covenants, restrictions and obligations under the other paragraphs of this instrument, and in addition to the rights and remedies of the Brickells under this instrument and applicable law, all of the foregoing covenants, restrictions and obligations may be enforced and violations thereof restrained by any of the Brickells, and their respective heirs, personal representatives, successors and assigns, by a suit for specific performance or injunctive -2- 22 of 69 relief of by any other legal proceedings to compel compliance therewith or prevent the violation or breach thereof. The OBrickells" as used in this instrument shall mean Beatrice A. Brickell, James B. Brickell, William B. Brickell, E. Langdon Laws, Trustee, Edward Sanders, John Sanders, Paul Sandersm, Archie K. Purdy and Mary G. Snyder and their respective heirs, personal representatives, successors and assigns. 6. The covenants set forth 3n pmsagzaphs 1 through 3 above shall run with the land and this instrument shall be binding upon Grantee and also its successors in interest and shall inure to the benefit of the Brickells and their respective heirs, personal representatives, successors and assigns. Grantee by acceptance hereof agrees that Grantee, and its successors and assigns shall be bound by the covenants and restrictions above set forth and shall be bound by and required to perform the obligations of Grantee set forth above. IN WITNESS WHEREOF, Grantors have executed this Indenture the day and year first above written. Signed, sealed and delivered in the presence of: 97807 CANADA, LIMITED/LTEE, a Canadian corporation BY Name: Title: (CORPORATE SEAL) 392208 ORTA210 LIMITED, an Ontario corporation By Name: Title: (CMPDRATE SEAL) STATE OF ) COUNTY OF ass: The foregoing instrument was acknowledged before me this day of , 19890 by as of 97807 CANAnk, LIMITED/LTEE, a r Canadian corporation, on behalf of the corporation. f �u. Notary Public rt�1 y 641 of :�69. My commission expires: (NOTARY SEAL) STATE OF ) )ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 1989, by as of 392208 ONTARIO LIMITED, an Ontario corporation, on behalf of the corporation. Notary Public My commission expires: (NOTARY SEAL) RCS:bb 1128J(11) fAii i�t 7:Tiias!"'ixt��y,-inlet. sesewdEme t. the Else.._ ,thstett. rssoeded is Fist see% a. at rate 34. of the !obits Assets$ *l Dads Cnet7. Fisrsaa. lyistt Eges t! the taseeti7 Ibokrkear7 Liss at S. g. !at Avenue ortdso eppross% area the Maass Uvow. deeart►ed so faileave Comeass as ebe istatgestsss s1 tie worth its* of its �7releng4steo taenrarl of the werthert7 lto* of t. t. Sth sit.. !AVG.) tieiittlag to he,plot &&steel as regarded is(#Is% 1NN 0 st tote 36. *9 eke tuNla essords ;I *ad* Counts. Florida. 'thonge sorthar17 alms the 2aeterl7 b*wdar7 list of the Ca. :ed Ave.. 3rldge opproasb. astoea she MUat liver. agandt" (ta conde*atles Prot"dims reteyded July ia. 111$ to Ctents Court Mouse isst< 30. as rose M. *f the to►its tesnN N zo*"#mwp. F1*rito. and •mi r sat enstai air"&&# cars ,having a radius of $33.34 lose througm asstrat antra *t 13 do as 13 Unocal 30 $stood• for as era diseases *f /61.aa !sat to tie ant at oald titre. twos$s, awsLa'e stag the cast bommeall Use �(or the S. i. god Are.. bridge apptaslk nt so aleregatt a*is" eho be::Sm` of welsh i dogma 32 sis't*@ 33 seteado Voet tot a dtaeaft ei 112.78 (got sa the foist of be`twsag *f ebe pars*% 3of land herata dear:!►ed3 theca* eawgt.w Faith Glen the e(areoald S. i. cod Arttwe. bridge antosat !s* a distsnaa of 'laa.S2 lost (lba Eggs orhe Dead) to a petal so she bulb -at ilse � its" the gosh beak at she XSWA Rtrep3 eNoa: sere% sa dealt.* (33 airmd u a$sasts Laos to 361.07 toss (fogs% ft degree* 21 "Rate* .i 'soawda Use; iO4.37 Lost by Seed) .less said bath* Ism head to a /•LASS ttsosa soossaw Items $sit butb•bead &we "TO 13 tell •$$ 13 NAuses 21 $oaoods fast tot a tistaaaa of 13t.$f fees (warsh !3 dog see I diaries 33 tocosde Lass 131.01 teat to b7 0*gd) to a total Marble$ the bogeSss at a tangwesa% 4 alar sa sutras th go loatop%7 cad sa'tb$gote*17 One sd both -head 1lt�e cad *&tea a our" by" a radio: d 100.2% toot chrgwth a starral set`t. 3S i*srose 33 *teases 31 $setea on m at tt$wee of IM Late 119 Cast isu'$* eesttel w4to 36 teases$. 117.74 ties b7 Yadto Na mod of said stars dose• eentl*us iwah 31 desra�o 31 .gooses t0 #*Fond$ last ales* said b'th•bsod &see along . ciao aawaeot to the esete$sid ewm got a distant* of 4633 tees to s•a.Las (btset It dogmas ast S3 *tes 3 S $stood$ Iasi 64,44 test 67 lo.d) 3 Choose last% 30 depose 17 Stooges it sessvkds Wage for a ttstaoas of 331.00 foss to a point's thseea fa'ab as degsess 07 *sautes 3S ossoods sass tot e aistense of 401.3 toot to tea Paso! *t bogtaaing. coagatatoa N .2S3.S9 &%'ago loos /2.3701 "Its) Nege *r Lose. ?%a blot 10 test thereof. dadtasto C41 Sttest and sidewalk ,gontatwiaa 1a37.70 sg+sat. fees and •'blest to as saootost Sep ' ingress and lgteee of like soutwees*r%7 tumor of daeer!b• preport? ►ass` *11 of that forties at esre'Lsr •star begins a Itetlus #g 33 f..s am a sonttal anti. a et Lao dostoee aed ::9. a! 1924.3 square fat. #aid .assoeet `ern` a aisi$a Of that sorsa►s 4 asnt =testsd to CUateer7 Case goo. lA.at1 of the Clts"t Comm of � D.t. CaksAt7. llottY. 4: k . -- - `i' 25 of 69` A P WNITel CASE- m1001 Segin at the interseatioa of the raasarly prolongation at the Moreb Liao of St !th Street with the tastarly Use of arickell Avesua, according to tba plat at ALICULL POINT@ recorded in Plat hock t at Page 34 of the ►ublic Iseerds of Dade County• lloridal tbenes to& Northarly as the test- ` erly boundary line of Srickell Avenue M Second )Avenue bridge approach) across the Mani River, according to Con - damnation Proceedings recorded July li, 1921, in Circuit Court minute kook 39 at Fag• 290, of the Public Seconds of Dade County, Fieridal aloag a stroulas curve t0 the left, concave to the West@ having a radius of 132.21 foss, a cen- tral angle 13013/3000 for as are distance of 141.44 loot, to the Point of Tangescps thense coatisue aloag the test boundary line of said Southeast S000sd Menus bsidg* ap- proach across the Umi sliver, along a line whose beariag is North 01032'339 rest• lair a distasse Of 112.78 teat, to a poiatt thence run Northerly, lastorly and Southeast along a circular curve to the tight coasave to the South# having a radius of 33 foot, a central as+gis to 233019000' through an are distance of 143.63 loot& to the point of Rovers* Ctirvts thence raa southwesterly MA Southerly along a cir- cular curve to ego left* eosesve to "a Wt, having a ra- dius•of 3% leer, a eeatral eagle of 93009'0V, through as are distance at 33.69 feet to the Paint of Tangeseys thehes run South 01032115e test@ alma a lino parallel to sad 40 Coat Utterly from the nester!= been" iilw of said Southeast Staged Avenue bridge approach serose the MAMA River, *assured at sight angles therete, for a diatus$ ON 35.33 Coot to the point of Carves these* ran Southerly an a line parallel to and 40 Coot USt*rly fro*, *assured at a nomal to the tasterly boundary line of said Southeast''` Second Avenge bridge approach, access the Huai fiver• elonq a curve to the loft, concave to the West, having a radius of $72.21 toot• a central angle of 13013'30•, through M are distance of 152.07 teat to a point oa the North bounder line of the Private MIPS u sham as the aforesaid Plat ai,' •RiCKILL PQIW? j thence rGA Nerih 16619' Ss' WOOS, sloag A North boondasy liao of said psivaee Drive, for a distance of 10 feet to the "1111T or •troxm 1G. :lit =7 26 16:14 305 358 5745 PAGE.©3 4 YrI ti 26 of 6913 Sirf Kl't4 stM4 r 7 AGREEMENT THIS AGREEMENT made as of the _ day of December, 1988 between Beatrice A. Brickell, James B. Brickell, William B. Brickell, E. Langdon Laws, Trustee, Edward Sanders, John Sanders, Paul Sanders, Archie K. Purdy and Mary G. Snyder (collectively referred to as the "Brickells") and The Williams Group, a Georgia general partnership ("Williams") RECITALS A. Williams is the contract vendee of certain real property situated on the south bank of the Miami River in Miami, Dade County, Florida, more particularly described in Exhibit A attached hereto (the "Riverpoint Property"), pursuant to a Sales Agreement (the "Sales Agreement") dated as of September 12, 1988 between Williams and 97807 Canada, Limited/LTEE, a Canadian corporation, and 392208 Ontario Limited, an Ontario corporation (collectively, the "Sellers"), a copy of which is attached as Exhibit B hereto. B. The Brickells are about to enter into a settlement of a suit against the City of Miami (the "City") United States District Court, Southern District of Florida, Miami Division, Case No. 88-0230-CIV-HOEVELER (the "Lawsuit") involving title to certain real property situated east of Brickell Avenue at approximately S. E. Sth Street, Miami, Dade County, Florida, more particularly described as Parcel 1 and Parcel 2 in Exhibit C attached hereto (collectively the "Brickell Properties"), pursuant to the terms of a Settlement Agreement, a copy of which is attached as Exhibit D hereto. C. The Settlement Agreement shall be subject to the approval of the City of Miami Commission. D. Williams and the Brickells desire to accomplish the exchange of the Brickell Properties for the Riverpoint Property pursuant to the conditions set forth in the Settlement Agreement and this Agreement. NOW THEREFORE, in consideration of the premises and Ten Dollars and other good and valuable considerations, the receipt of which is hereby acknowledged, the parties hereby agree to the following: 1. The above recitations are true and correct. 2. Williams agrees to (i) cause the Sellers to convey the Riverpoint Property to the City and (ii) make a cash payment of $2,590,000 to the Brickells in exchange for the conveyance of the Brickell Properties to Williams by the Brickells on the Closing Date. 3. The Brickells agree to settle the Lawsuit pursuant to the terms of the Settlement Agreement and to convey the Brickell Properties to Williams in exchange for the conveyance of the Riverpoint Property to the City and a cash payment by Williams to the Brickell's of $2,590,000 (of which amount the Brickells shall retain $775,000 and donate $1,815,000 at the Closing to the City pursuant to the Settlement Agreement) on the Closing Date. 4 marketable Closing. Judgment, insurance survey of The Brickells shall convey to Williams good, and insurable title to the Brickell Properties at Within twenty (20) days after entry of the Final Williams shall obtain an ALTA Form B owner title commitment covering the Brickell Properties and a such property. Williams shall have ten (10) days a 0 after obtaining the title insurance commitment and the survey to notify the Brickells in writing of any defects, objections or encumbrances affecting marketability of said title as disclosed by the title insurance commitment and/or survey ("Williams Title Objections"). The Brickells shall then have period of sixty (60) days to cure or terminate any such Williams Title Objections (but shall have no obligation to do so). If the Brickells fail or refuse to cure said title, then Williams may, at its option, exercised within fifteen (15) days, elect one of the following: a) Waive any Williams Title Objections and consummate this Agreement, without any adjustment in the cash payment to the Brickells as a result of the Williams Title Objections, or b) Terminate this Agreement by written notice to the Brickells. Williams shall cause the Sellers to convey to the City good, marketable and insurable title to the Riverpoint Property at Closing. Within twenty (20) days after entry of the Final Judgment, Williams shall cause the Sellers to deliver an ALTA Form B owner title insurance commitment covering the Riverpoint Property and a survey of such property and deliver same to the Brickells. The title commitment shall show the proposed insured as the City and the survey shall be certified to the City and the title company. The Brickells shall have twenty-five (25) days after obtaining the title insurance commitment and the survey to notify Williams in writing of any defects, objections or encumbrances affecting marketability of said title as disclosed by the title insurance commitment and/or survey ("Brickell Title Objections"). Williams shall them have a period of sixty (60) days to cause Sellers to cure such Brickell Title Objections, but Sellers shall have no obligation to do so other than as set forth in the Sales Agreement. If Williams fails to cause such Title Objections to be cured, then the Brickells may, at their option, exercised within twenty-five (25) days, elect one of the following: c) Waive any Brickell Title Objections and consummate this Agreement, without any adjustment in the cash payment to the Brickells as a result of the Brickell Title Objections, or d) Terminate this Agreement by written notice to Williams. At the Closing the City and Williams shall receive a "mark-up" of the above referenced title commitments to the Riverpoint Property and the Brickell Properties, respectively, effective through the recording of the deeds of conveyance of such properties and from which the "gap exception" and all standard, pre-printed exceptions (other than taxes for the year of closing, if then unpaid) have been removed; or in the event that the standard exception for rights of parties in possession has not been removed due to tenants in possession of portions of the Riverpoint Property, a limitation of such exception to rights of tenants as tenants only, together with affirmative insurance that such tenants' rights will expire and terminate not later than thirty (30) days after the effective date of the Closing. Williams shall cause the delivery to the City of the executed issued owner title insurance policy in conformance with the mark-up of the title commitment with respect to the Riverpoint Property as soon as practicable after the Closing. 5. Each of the parties hereby represents and warrants to the others that it has not consulted, dealt or negotiated with any broker, salesman, finder or agent in connection with the transactions which are the subject of this Agreement, other than Cushman & Wakefield (the "Broker") with respect to the Riverpoint Property, and each party hereby agrees to indemnifyand hold the others harmless from and against any and all losses, damages, costs, expenses and liabilities, including but not limited to trial and appellate attorneys' fees, related to or arising out of any claim for a commission, finder's fee or other compensation due or alleged to be due to any broker, salesman, finder or agent (other than Broker) with whom such party has, or is alleged to have, dealt or consulted in connection with the transactions which are the subject to this Agreement. The Sellers shall be responsible for the payment of the commission, if any, which may be due to Cushman and Wakefield, as provided in the Sales Agreement. Neither the Brickells nor the City shall be responsible for the payment of any commission, finder's fee or other compensation to any broker, salesman, finder or agent in connection with the transactions which are the subject of this Agreement. 6. a) With respect to the Riverpoint Property, Williams shall pay or cause to be paid by the Sellers (i) all documentary tax stamps and surtax stamps required to be affixed to any and all instruments of conveyance (including without limitation, a deed from the Sellers to the City), (ii) all premiums due on title insurance policies issued in connection therewith, (iii) the cost of all surveys, (iv) the cost of the Class 2 environmental audit mentioned in paragraph 8 of this Agreement and (v) any other closing costs customarily paid by either a seller or a buyer in the State of Florida with respect to the conveyance by the Sellers to the City. b) With respect to the Brickell Properties, Williams shall pay (i) all documentary tax stamps and surtax stamps required to be affixed to any and all instruments of conveyance or evidencing transfer from the Brickells to Williams, (ii) all premiums due on title insurance policies issued in connection therewith, (iii) the cost of all surveys and (iv) any other closing costs customarily paid by either a seller or a buyer in the State of Florida with respect to the transfer of title from the City to the Brickells and from the Brickells to Williams. Williams shall pay the cost of all surveys, the cost of all feasibility studies and investigations mentioned in paragraph 7 of this Agreement, and any other closing costs customarily paid by either a seller or a buyer in the State of Florida with respect to the Brickell Properties. It is the opinion of the Brickells and Williams that no documentary stamp tax and surtax will be due on the reversion or establishment of title to the Brickell Properties in the Brickells under the Final Judgment, but in the event that such documentary stamp tax and surtax is due, Williams shall pay same. c) It is understood and agreed that Williams shall pay, or cause Sellers to pay, all closing costs of any nature whatsoever connected with the transfers of title of the Brickell Properties and the Riverpoint Property (except as otherwise specified in this subparagraph (c). Williams and the Brickells and the City shall each pay their respective legal fees associated with this matter. All ad valorem taxes on the Riverpoint Property shall be prorated at the Closing as the Closing Date between the Sellers and the City and any ad valorem taxes on the Brickell Properties shall be assumed and paid by Williams. If the amount of such taxes is undetermined at Closing, the proration shall be based on estimates computed by utilizing the most recent applicable ad valorem tax rates and assessments. In the event the actual amount of taxes differs from the estimated figures, the Sellers, Williams and the City, as the case may be, shall agree to adjust such prorations immediately upon availability of the actual tax bill. All special taxes or assessments approved or assessed on and becoming due and payable on or before Closing shall be paid by Sellers on the Riverpoint Property and shall be assumed and paid by Williams on the Brickell Properties. -3- 31 of 69 88-i223 44 A 7. The Brickells grant, -and shall cause the City to grant, Williams and its agents permission to enter upon the Brickell Properties at reasonable times and with reasonable notice until 5:00 P.M. on the Investigation Deadline Date toenable Williams to conduct, at Williams cost, feasibility studies and investigations to determine the condition and status of the Brickell Properties, including, without limitation, zoning and use limitations, existence and availability of utilities, soil and groundwater conditions, or the presence of toxic materials or hazardous wastes on the Brickell Properties. The "Investigation Deadline Date" shall be eighty (80) days after the City Approval or March 20, 1989, whichever is earlier. After conducting such feasibility studies or investigations, Williams shall, at its sole cost and expense, restore the Brickell Properties to the condition that they were in prior to said study or investigation. Williams shall indemnify, defend and hold the Brickells and the City harmless from and against any and all claims, losses, damages, expenses (including without limitation, attorneys' fees and costs) or liabilities arising from or related to any such study or investigation. In the event Williams is not satisfied for any reason with the results of any such study or investigation, then Williams may terminate this Agreement by written notice to the Brickells prior to 5:00 P.M. on the Investigation Deadline Date. If Williams fails to terminate this Agreement by written notice to the Brickells prior to 5:00 P.M. on the Investigation Deadline Date, Williams shall be deemed to have examined to its satisfaction and approved the condition and status of the Brickell Properties. 8. On or before 5:00 P.M. on the Investigation Deadline Date, Williams shall cause to be prepared and delivered to the City and the Brickells a Class 2 environmental audit, including soil tests, to determine whether there is any evidence of the existence of toxic materials on the Riverpoint Property. In the event that such environmental audit discloses evidence of any such toxic materials, the Brickells may, at their option, exercised within twenty-five (25) days after receipt of the environmental audit, terminate this Agreement by written notice to Williams. 9. Williams acknowledges that Williams shall have made an inspection of the Brickell Properties (including without limitation, an environmental audit) prior to the Closing and that the conveyance by the Brickells shall be made without any representations or warranties as to the physical condition of the property (including, without limitation, conformance or non-conformance of the property to any and all environmental laws and regulations) or as to any other matters whatsoever. 10. The closing of the (i) conveyance of the Brickell Properties by the Brickells to Williams, (ii) the conveyance of the Riverpoint Property to the City, (iii) the cash payment by Williams of $2,590,000 to the Brickells, (iv) the cash donation by the Brickells to the City of $1,815,000 (collectively, the "Closing") shall occur simultaneously at the same time and place and the Closing of each transaction shall be dependent upon the Closing of all four transactions. 11. The Closing shall take place at 9:30 a.m. at the office of White & Case, Southeast Financial Center, 200 South Biscayne Boulevard, Miami, Florida 33131. The date of the Closing shall be on a date to be mutually agreed upon by the Sellers, Williams, the Brickells and the City, but in no event later than April 20, 1989. 12. Any notice, election, or other communication required hereunder shall be delivered by hand or by certified United States mail return receipt requested, postage and -4- 32 of 69 88-1.223 C Charges prepaid, to the following addresses! To Williams: The Williams Group Suite 650 400 Perimeter Center Terrace Atlanta, Georgia 30346 with a copy to: H. William Walker, Jr,, Esquire White & Case 200 S. Biscayne Boulevard Miami, Florida 33131 To the Brickells: Beatrice A. Brickell, Esquire Sharretts, Paley, Carter & Blauvelt, P.C. 1707 L Street, N.W. Washington, D.C. 20036 with a copy to: Phillip G. Newcomm, Esquire Shutts & Bowen 1500 Edward Ball Building 100 Chopin Plaza - Miami Center Miami, Florida 33131 and Dwight Sullivan, Esquire 3110 Southeast Financial Center Miami, Florida 33131 To the City: City of Miami 3500 Pan American Drive Miami City Hall, Second Floor Miami, Florida 33133 Attention: Cesar H. Odio City Manager With copy to: City of Miami Attorney 1100 Amerifirst Building One Southeast Third Avenue Miami, Florida 33131 Attention: Jorge L. Fernandez 13. This Agreement is contingent upon the City of Miami Commission's approval of the Settlement Agreement and the entry of the Final Judgment pursuant to paragraph 2 of the Settlement Agreement. The term "City Approval" shall mean the date upon which the City of Miami Commission's approval of:,the Settlement Agreement becomes effective. The term "Final Judgment" shall mean the Final Judgment entered pursuant to paragraph 2 of the Settlement Agreement. 14. This Agreement is further contingent upon (i) the, Sellers and Williams extending the closing deadline date in the> ' r Sales Agreement for an additional period to and including April ' 20, 1989 and the extension of the deadline date in the Sales Agreement and Exhibits thereto for satisfaction, performance waiver of Contingencies (as defined therein) for, an additionali sL period to and including April 15, 1989 and (ii) the amendment . ti r i4 'i7P� �^�l Y�,-t4iff'!',•F° 33of 69 �f,.�1 r of the Sales Agreement to provide that the Sellers will deliver a Warranty Deed to the the City at Closing in the form attached as Exhibit E hereto, provided the other applicable terms and conditions of the Sales Agreement for delivery of the Warranty Deed thereunder have been satisfied. Williams agrees that it will use its best efforts to obtain such extensions and amendment within fifteen (15) days after the date of this Agreement, and if such extensions are not obtained by such date, this Agreement shall be deemed terminated as of such date. 15. The parties hereto agree to use their best efforts (without the obligation of commencing any litigation or the expenditure of any funds other than the cash payment of $2,590,000 by Williams to the Brickells, the cash donation of $1,815,000 by the Brickells to the City, and the payment of costs for which Williams is responsible under this Agreement) to consummate the transactions contemplated in this Agreement. However, it is understood and agreed that neither party shall be liable in damages to the other for the failure of the Closing to occur and each party hereto waives any and all claim or right to any damages as a result of such failure of the Closing to occur for any reason whatsoever (including without limitation a defect in the title to the Brickell Properties). Each party may enforce any of its rights or any other party's obligations hereunder by an action for specific performance. Without limiting the generality of the foregoing, it is specifically understood that neither the City nor the Brickells shall be liable for the payment of any commission, finder's fee or other compensation to Cushman and Wakefield or any other broker, salesman, finder or agent in the event the transactions contemplated in this Agreement are not consummated for any reason whatsoever. 16. The Brickells hereby authorize and direct Williams to pay to Shutts & Bowen Trust Account the cash payment of $2,590,000 (the "Brickells' Cash") to be made by Williams to the Brickells at Closing under the provisions of paragraphs 2 and 3 above. Shutts & Bowen is hereby authorized and directed to (i) retain and pay at the Closing their attorneys' fees and costs incurred in representing the Brickells in the Lawsuit and the negotiation (including document preparation) and closing of the transactions contemplated by this Agreement out of the Brickells' Cash of $775,000.00, in accordance with a separate fee agreement between Shutts & Bowen and the Brickells, (ii) pay the sum of $1,815,000 to the City at the Closing representing the cash donation to be made by the Brickells to the City under the provisions of paragraph 3 -above, and (iii) pay at Closing the balance of the Brickells' Cash to the Brickells in proportion to their respective percentages set forth in Exhibit F attached hereto. 17. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, and their respective heirs, personal representatives, successors and assigns. 18. This Agreement may be executed by hereto in separate counterparts, each of which wher and delivered shall be an original, but all such shall together constitute but one and the same Each counterpart may consist of a number of copies signed by less than all, but together signed by Parties hereto. the parties so executed counterparts instrument. hereof each all of the -6- 34 of 69 88-1223 WITHISS, WHEREOF the 158 tties hereto have okeeUtod i&Agrooment as of the date 00VO Written, THE WILLIAMS V31OUP James cu mminq# General, - Mike.williamso General William ',,,Brickell, ,"B ................ sander S,;A f�•"_ d' ,.7,;,�'. SXNZBZT •�• r ' �All—c�t s�iti•w • } asi•s�tn� to tM "as MISS tbersol. retarded is slat a«f go at to 3a. eL tM'; sasstds of sad• Cora. Fists". &test Lacs •! tlw beget&! '1wn$sr! &lag of S. 1. lied Avenue tridta attse*a GsresG the Mlaai Siwr. 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Sridg0 atftesoh tot G-dteuase e! s` i10:l2W a ad v case /1 good) to tei•t w W hif�MeL &dew z j 6.3 1st# et sfo Masi %1Nr I, change Mrtf N `tattq! r )3 sissu• !11 sagged@ last to 261.17 feet tMreh SO Ntaows 3f Wet.@ •S 'soup*@ an :17:•2! �@ag ff M.d) a►wfa .ai• folk- 1+s•d tees` q • Mws ehasse Gwtia�se a osg said w •Mad ltwe k tsni t2 degrees 12 •s+wta• 21 usssde'gaaa ter -• tiaaa•Ge e+! 121.39 toot (*090 12 dwirsss- t •LwaG 22.snwNw aGt tt2MlitNt tees ft Ned) to a pies s:Gsftag sM Ngis•;tsallt Giwg Nid Giustar Clams tbeass tassels tattoo 1. tees telt•fud lire sod a&asg a GUM lfnA•i threw•tf a assrral_Ge`t1 i@a (to �au@1 M 1• !t �X sea tisca"a of tt•)` pgrus, tt.tf late ty Ned) to sM and sf .GGtd asr*s~stww ��. Geglesss i1.14 !1 d$g*a•@ f t►iMug to socesdg;gaat teed~add �? lwlf•MGd liae alw�t •list taaggs• tsa @ two wtareGaid ow", at a . ; s tt$tan of N.32 toes` sa • Mekg tNK� !1 NpGGo 21 •ice*e r{ ii iiiweii 33 seconds Vast forv4 tiisames i! 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The rut 10 lose thereat. dedidaee0 ter !ct•as s * awass% t seta/plat 1031•10'6 wee tows tad Gshleat ea a sdew•wst !gr }4 tnt:u• aM $gran w1 the fowehwessetls $gracr gt'dasss! d . jAf tog. $$$ 1oi• ali as SMS Nrsis* of :strsviGr :eNs@r,.►@•tag a s sots*$ efts*iasesMi@td setr�s lost at`1Sigoti ois if*idai soiii s 1 M Cttsrti°!a'r/t ' 1 Q1aa t2� 2 � st $$$sass @r7 ease ' Yddg �r °n' y� 4W . 38:.'?: ..� 3� ?aim —a-. :��. ..'�?S3 3'� a..?33 � •_� Begin at the intersection of the easterly prolongation of the NOreh Line of at Sth street with the easterly Ilse of stick*" Avenue, aceerdisg to the plat of BRSCKUL POYMT. recorded in Plat Book s at tale 24 o! the Pnblie Reeords of Dade County, Florida# thence run Northerly on the east- arly boundary line of Briekell Avenue (Be second Avenue bridge approach) across the Miami River, according to'Con- dasnation Proceedings recorded July 16, 1928, in Circuit Court Minute Book 26 as Page 290, of the Public Records of Dade County, Florida# along a circular curve to the lsft, concave to the West, having a radius of $32.28 fait, a cen- tral angle L3*131300, for an are distance of 141.44 feet, to the Point of Tangency? thence continue along the last boundary line of said Soatbsast Second avenue bridge ap- proach across the Miami River, along a line whose bearing Ls North 01•32,350 Nest, tot a distance of 112.7l fast, to a points thence run Northerly, easterly and southerly along a circular curve to the right concave to the South, having a radius of ]S feet, a central angle to 225109100e through an are distance of 143.65 fort• to the point of Reverse Curve: thence ran Southwastarly and Southerly along a eir- eular curve to the left, coseave to the last, having a ra- dius of 35 feet, a central eagle of 33•09•00•, tbroslb an are distance of 33.0 teat to the Point of Sangencyt thence run south 010531350 last, aleag a line parallel to and 40 feat easterly from the taster)! boundary lies of said Southeadi second Avenue bridge approach across the Miani River, measured at right angles thereto, for a distance of 35.33 feet to the Point of Carver thence ran Southerly on a line parallel to and /0 feet tastorly from, measured at A normal to the tastasly boundary line of said Southeast.``' Second Avenue bridge approach across the Miami River, along ; a curve to the left, concave to the West, having a rad:as of 372.21 test, a central angle of 151138300, through an are distance of 132.07 test to a point om the Month bound&ry1; line of the Private Drive as shown an the aforssaid Plat o: BRiCRUL P01M?t thence rah Momb 761879155• West, along a.. Month boundary line of •aid Private Drive, for a diMtanct of 40 feet to the POUT of MtGUNING. i y ♦'Z i 3 E y'4JNi1 i J�5 f 1t t y I Y § SALES AGREEMENT THIS AGREEMENT made as of this /Aday of.Lu"mrt 1988, is by and between 97807 CANADA, LIMITED/LTEE, a Canadian corporation, and 392208 ONTARIO LIMITED, an Ontario corporation, or its successors or assigns by virtue of the order of the Honorable Prudence B. Abrams, Judge of the United States Bankruptcy Court, Southern District of New York, doing business as Atlantis on Brickell (hereinafter referred to as "Seller"), and THE WILLIAMS GROUP (hereinafter referred to as "Purchaser"). W I T N E S S E T H: Upon the terms and conditions set forth herein, Seller agrees to sell and Purchaser agrees to purchase all that tract or parcel of land, together with improvements, containing approximately 2.43 acres, more or less, together with the rights of Seller in and to the easement referred to in Paragraph 6 (the "Property") as described in Exhibit A attached hereto, which by this reference is made a part hereof, together with all and singular the rights and appurtenances pertaining thereto. For and in consideration of the mutual covenants herein, and for good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto continue to be legally bound and agree as follows: 1. Deposit. On or before twenty days (20) from the date of acceptance of this contract, Purchaser shall deposit, in cash, check or irrevocable letter of credit, the sum of $100,000.00 (the "Deposit") which sum shall be paid to White & Case ("Escrow Agent"), for the benefit of Seller and Purchaser hereunder. The deposit shall be placed in an interest -bearing account seeking the highest rate of interest taking into consideration the expected closing date of the transaction. The account shall be designated by the Seller and Purchaser for the Escrow Agent. The Deposit shall remain refundable until all contingencies have been met to the Purchaser's satisfaction as stipulated in Exhibit B (the "Contingencies"'). Upon satisfaction, and/or waiver by Purchaser, of all Contingencies, or at the end of one hundred forty-five (145) days after the effective date of this Agreement if, but only if, Buyer does not terminate s F 4T i r { ry n iY F. 39 of 69, r`h— 44 A . 1b`:. �: �tt•i wfi1lGSLr+7G`IKlhl this Agreement as a result of failure of all of'the Contingencies to be satisfied within such 145 days, the Deposit shall become non-refundable and shall be applied at Closing to the Purchase Price (as herein defined). If this Agreement has not theretofore been terminated, not later than fifteen (15) days prior to Closing Purchaser shall deposit an additional $150,000.00 (the "'Additional Deposit"). The Additional Deposit shall be non-refundable and shall also be applicable towards Purchase Price. Interest earned upon the Deposit and Additional deposit shall be applicable towards the Purchase Price in the event the transaction closes. 2. Purchase Price. The Purchase Price for the Property shall be Eleven Million Five Hundred Thousand and No/100 Dollars ($11,500,000.00). 3. Payment. The Purchase Price shall be paid as follows: At Closing (as hereinafter defined), Purchaser shall pay to Seller by wire transfer, or certified check, the cash portion of the Purchase Price (being the sum of $11,500,000 less $9,000,000 represented by the mortgages referred to in Exhibit NB") less the Deposit and Additional Deposit and interest accrued thereon. The cash proceeds of. the sale shall be distributed to the mortgagees referred to in Exhibit "BO in accordance with the provisions of Exhibit ACM 4. Closing. The Closing shall be held ninety (90) days following the date that all Contingencies have been met. However, in the event the transaction is not closed by December 31, 1988, and even though Buyer may have as of such date additional time to satisfy the Contingencies set forth in Exhibit "B" attached, Purchaser must close by the date of December 31, 1988, or upon failing to close, this agreement shall then be null and void, and all Deposits, and interest accrued thereon, will be returned to Purchaser. Title will be conveyed by Warranty Deed subject only to matters set forth in Schedule B, Section 2 of the Title Insurance Commitment approved by Purchaser pursuant to Paragraph 6 of this Agreement. Seller will deliver to Purchaser, together with the Warranty Deed, an affidavit stating that there are no unpaid bills for labor, material or services to the Property, and that no such services have been performed to any portion of the Property within a period of ninety (90) days prior to the Closing' Date, the cost of which remains unpaid; that Seller is in -2.. 40 of 69 s �_-l's"E? L,.,:,:t:d 04MI.aA6wb6-MI"MI sole and exclusive possession of the property and no other person or entity has any right or claim to possession thereof, or, if there are tenants in possession of the property, the identity of such tenants and the terms of their tenancy; and that Seller is not a "foreign person" as defined in Section 1445(k)(2) of the Internal Revenue Code of 1954, as amended. 5. Costs and Prorations. Seller shall pay for documentary tax stamps and surtax stamps required to be affixed to the deed, for the cost of the survey and for the premium due upon Purchaser's owner title insurance policy; and Purchaser and Seller shall pay other closing costs customarily paid by Purchaser and Seller in the State of Florida. Purchaser and Seller shall each pay their respective legal fees associated with this transaction. Real property ad valorem taxes shall be prorated at the Closing. If the amount of such taxes is undetermined at Closing, the proration shall be based on estimates computed by utilizing the most recent applicable ad valorem tax rates and assessments. In the event the actual amount of taxes differs from the estimated figures, Seller and Purchaser agree to adjust such prorations immediately upon availability of the actual tax bill. All special taxes or assessments approved or assessed on and becoming due and payable on or before Closing shall be paid by Seller. 6. Title. Seller shall convey to Purchaser good, marketable and insurable title to the Property at Closing. The title shall be subject to the mortgages referred to in Exhibit "B" and Purchaser shall accept title subject to the mortgagee provided the payment terms of such mortgages are modified in the manner as provided in the Exhibit. Within thirty (30) days after the resolution, to the satisfaction of Purchaser, of the Brickell proceedings referred to in Exhibit "B", Seller will deliver to Purchaser a current survey of the Property prepared in accordance and certified as to compliance with the Minimum Technical Standards promulgated pursuant to Section 472.027, Florida Statutesi and Purchaser shall have thirty (30) days from the receipt of such survey to obtain, and thirty (30) days after obtaining to examine, an ALTA Form B owner title insurance commitment covering the Property and to notify Seller in writin of d f t g any a ec s, objections, or encumbrances affecting the marketability of said title as disclosed by examination of the survey and/or title insurance commitment. Seller shall then have a period of sixty (60) days to cure or terminate any such defects, objections, or encumbrances. If Seller fails to cure said title, then Purchaser may, at -3- K 1 fi 41 of 69"' E C?-06�86 G°:I6Fld NMIIELCASE -M• ._ its option, exercised within ten (10) days, elect one of the following: (a) Waive any objections and consummate the Agreement, without any adjustment in the purchase price by reason of such objections, or (b) Terminate this Agreement by notice to Seller, whereupon the Deposit will be immediately refunded to Purchaser. Purchaser's obligations hereunder are conditioned upon Purchaser receiving at closing a "marked -up" title commitment, effective through recording of the deed of conveyance from Seller to Purchaser and from which the "gap exception" and all standard, pre-printed exceptions (other than taxes for the year of closing, if then unpaid) have been removed; or, in the event that the standard exception for rights of parties in possession has not been removed due to tenants in possession of portions of the Property, a limitation of such exception to rights of tenants as tenants only, together with affirmative insurance that such tenants' rights will expire and terminate not later than thirty (30) days after the effective date of the closing. Purchaser acknowledges that access to the property is obtained through a private easement and not a dedicated road. Purchaser further acknowledges that Purchaser shall not raise as an objection to the title or as a defect in title the existence of such private easement and that access to the property is only available through such private easement; provided, however, that nothing herein shall be construed as prohibiting Purchaser from objecting to the status of the title to the easement. 7. Warranties of Seller. Seller hereby makes and will make at Closing the following warranties, covenants and representations to Purchaser with respect to the Property. If any of these warranties, covenants or representations are now, prior to or at Closing untrue in any material and/or adverse respect, the Purchaser, at its election, may either (i) terminate this Agreement by written notice to Seller, whereupon this Agreement shall become null and void and of no further force or effect, and the Deposit and Additional Deposit shall be promptly refunded to Purchaser; or (ii) proceed under the terms of this Agreement. i -4- 1 r �sy1r .. f .. 1?F�! mmIIEl.CASE-MIAMI (a) The Property is not to the best of Seller's knowledge, based upon reasonable inquiry made of the present manager of the property, subject to any leases or claims by tenants in pcssession extending beyond thirty (30) days and that so long as this Agreement remains in full force and effect, Seller will not lease any portion of the Property, excepting that Seller may continue to lease apartments at the property on a month -to -month basis. At or before closing, Seller shall either: (i) deliver to Purchaser and/or Purchasers' title insurer such copies of leases, tenant estoppel statements, affidavits or other information and instruments as may be required by the insurer, in accordance with standard title insurance practices, to delete from Purchaser's title insurance and policy the standard exception for rights of parties in possession, and/or to provide insurance with respect to the rights of tenants, as provided in Paragraph 6 hereof; or (ii) cause the Property to be completely vacated, so that there are no persons or entities in possession of any portion of the Property. In the event that the Property has not been totally vacated on or before the closing date, as determined pursuant to Paragraph 4 hereof, and if Seller elects not to provide the affidavits or other information specified in Subparagraph (i) hereinabove, the closing deadline will be extended by up to thirty (30) days in order to provide additional time during which Seller will attempt to cause the Property fully to be vacated. If, at the end of such thirty (30) days, the Property has still not been completely vacated, and if Seller remains unwilling, at its option, to provide the affidavits or information specified in Subparagraph (i) hereinabove, then Purchaser will either (x) waive any requirement that Seller perform or deliver the Property as set forth in Subparagraphs (i) or (ii) hereinabove, and proceed to close upon the Property notwithstanding persons or entities in possession of all or portions thereof, or (y) terminate this Agreement, upon which all Deposits and the Additional Deposits, and interest accrued thereon, will be refunded immediately to Purchaser and thereafter this Agreement will be null and void and the parties hereto will have no further rights or obligations hereunder. (b) Seller has the full power and authority to make, deliver, enter into and perform pursuant to the terms and conditions of this Agreement. (c) Subject to the terms and conditions stated herein, this Agreement is a valid and binding -5 tf E 1. f 0 43 of 69��� r U _-q-Ue-es �`_:a ifl wHISEbCpSE-MIAMI agreement of Seller, and enforceable in accordance with its terms. (d) Seller has never stored toxic chemicals upon the Property and has no knowledge of any prior existence or storage of toxic materials on the Property. On or before forty-five (45) days after the date of execution of this Agreement by Seller and Purchaser, Seller will cause to be prepared and delivered to Purchaser a Class 2 environmental audit, including soil tests, to determine whether there is any evidence of the existence of toxic materials on the Property. In the event that such environmental audit discloses evidence of any such toxic materials, Purchaser may, at its sole election, terminate this Agreement, in which event all Deposits, the Additional Deposits and interest accrued thereon will be refunded immediately to Purchaser and thereafter this Agreement will be null and void and the parties hereto will have no further rights or obligations hereunder, or•Purchaser may elect to close upon the Property without credit against or diminution in the purchase price, and in such event Seller will have no liability to Purchaser with respect to the existence of such toxic materials on the Property. The provisions of this Section shall survive the Closing. S. Eminent Domain. As of the date of this Agreement, Seller warrants and represents that it has no knowledge of and has received no notice of commencement or threatened commencement of eminent domain or any other like proceeding against the Property or any portion thereof. In the event of such commencement or threatened commencement of such actions against the Property or any portion thereof, Seller shall immediately notify Purchaser, and Purchaser shall elect within thirty (30) days by written notice to Seller, either (i) not to close this transaction, in which event this Agreement will become null and void and of no further force or effect and the Deposit and Additional Deposit shall be promptly refunded to Purchaser; or (ii) to close the transaction notwithstanding such proceedings, in which event the Purchase Price shall not be reduced but Seller shall assign to Purchaser all of Seller's rights to any condemnation award or proceeds. Seller will provide to Purchaser, and will cause Seller's legal counsel or other consultants to provide to Buyer, copies of all notices or other information received by Seller or its counsel or consultants concerning any proposed or pending condemnation action against any portion of the Property and will notify Purchaser of, and permit Purchaser or its legal 'counsel or } V 1 . c5-ue-e? .w WHI7ELCASE-41,h I other consultants, at Purchaser's option and expense, to attend and monitor, any meetings, negotiations or other proceedings related to any threatened or pending condemnation affecting any portion of the Property. Notwithstanding the foregoing, Purchaser acknowledges that Purchaser has been informed of a possible condemnation action by the applicable governmental agency, such condemnation action relating to the relocation of the erickell Avenue bridge across the Miami River. The existence of such possible condemnation proceedings shall not be deemed a violation of Seller's representations and warranties set forth in this paragraph. 9. Maintenance of and Destruction of Premises. (a) If the Property or any improvements on the Property are destroyed or materially damaged before the Closing, Seller shall assign to Purchaser Seller's right to any insurance proceeds paid or payable to Seller in connection with such damage or destruction. (b) Purchaser acknowledges that Purchaser intends to demolish the existing improvements upon the property. Purchaser shall not have the right to terminate or rescind this Agreement in the event of any casualty suffered by the Property, provided Seller assigns to Purchaser any insurance proceeds, if any. (c) Purchaser represents and warrants unto the Seller that Purchaser has inspected the improvements situated upon the Property and that Purchaser is satisfied with the condition of the improvements. Purchaser shall have no cause of action against Seller for damages which may be sustained by reason of any latent or patent defects in the improvements. (d) Seller shall be obligated to maintain such casualty insurancgkand public liability insurance as Seller may have upon the property and to renew any expired insurance provided a premium for any renewed insurance is at standards rates and not at any premium rate. 10. Seller's Default. If the purchase of this Property is not consummated due to Seller's failure or refusal to perform, the Deposit and Additional Deposit shall be immediately returned to Purchaser, and Purchaser may exercise such rights and remedies as provided for or allowed by law and/or in equity, including, without -7- t Vbi C9-06-68 cb:zztm 0iH1TELtASE-w1A%1 limitation, the right to seek and obtain specific performance of this Agreement, excepting that! (a) Purchaser shall have no cause of action against Seller in the event Seller defaults by reason of Seller's inability to make title to the Property such as required by the terms hereof and in which event, Purchaser's sole remedy shall be the return of the Deposit and, if made, the Additional Deposit. In the event of Seller's default, and the return of the Deposit to Purchaser, interest earned upon the Deposit and Additional Deposit shall be paid to Purchaser. (b) In the event any portion of the Property is subject to any leases or claims by tenants extending beyond thirty (30) days after closing hereunder, or in the event that prior to closing toxic chemicals are found upon the Property or it has been determined prior to closing that toxic chemicals have been stored upon the Property, Purchaser's rights against Seller shall be limited to actions for specific performance (subject, however, to the provisions of Subparagraphs 7(a) and (d) hereof), in which event Purchaser shall not be entitled to any adjustment in the purchase price, or Purchaser shall be entitled to a return of all Deposits, and, if made, the Additional Deposit, and all interest accrued thereon, but Purchaser will not be entitled to maintain an action for damages. 11. Purchaser's Default. If the purchase of the Property is not consummated due to Purchaser's default, then Seller shall retain the Deposit, and the Additional Deposit if the same has been paid at the time of such default, as liquidated damages, together with interest accrued thereon, the parties hereto acknowledging that retention of the Deposits as liquidated damages is Seller's sole and exclusive remedy in the event of default by Purchaser. 12. Assignment. Seller shall, and does hereby expressly consent and agree to any assignment by Purchaser of Purchaser's rights hereunder pursuant to the Contingencies or to any partnership in which Michael Williams, James Cumming or an entity owned or controlled by Michael Williams, is a partner, excepting that any assignment by Purchaser is conditioned upon the ability of such assignee to qualify for the mortgage referred to in 171 4b assignment. Upon such assignment, the sale contemplated by this Agreement shall be consummated in the name of, and by and through the authorized officials of such assignee for the performance and discharge of all obligations of Purchaser hereunder. A copy of such assignment will be delivered to Seller at least ten (10) days prior to closing. 13. Brokers. Each party hereby represents and warrants to the other that it has not consulted, dealt or negotiated with any broker, salesman, finder or agent in connection with the transaction which is the subject of this Agreement, other than Cushman & Wakefield (the "Broker), and each party hereby agrees to indemnify and hold the other harmless from and against any and all losses, damages, costs, expenses and liabilities, including but not limited to trial and appellate attorneys' fees, related to or arising out of any claim for a commission, finder's fee or other compensation due or alleged to be due to any broker, salesman, finder or agent other than Broker with whom such party has, or is alleged to have, dealt or consulted in connection with the transaction which is the subject to this Agreement. Seller shall be obligated for the commission, if any, which may be due to Cushman & Wakefield. 14. Entire Agreement. This Agreement constitutes the ent re agreement of the parties and may not be amended except by written instrument executed by all the parties hereto. This Agreement has been negotiated "at arms length", each party represented by counsel of its choice, and will therefore be construed on the basis that each party has had equal responsibility for the form and content hereof. 15. Effective Date. The term "date of this Agreement" means the date on which this Agreement shall have been duly executed by the last of either Seller or Purchaser, and such date shall be inserted in the preamble on page one (1) of this Agreement. 16. Litigation Costs and Expenses. Should any event arise between parties that require— s litigation, then the non -prevailing party hereby agrees to pay for all associated legal fees and expenses of the prevailing party. 17. Joinder. Chase Bank of Maryland joins in the execution of this contract solely for the purpose of evidencing its consent to the sale, such consent being required pursuant to Agreement dated October 9, 1987, and to evidence its waiver of its right of first refusal as set ` -9- t4 •+ y - - i ;x t 4 7" of 4 9'""'� ' y, Pz t 7 - jj f ff � Z AL QL ..;':. 16�.a�tM1i�M1 i� , forth in such Agreement, provided the transaction as evidenced by this contract closes. in the event the transaction does not close, Chase Bank of Maryland shall reserve such rights as it may have set forth in the Agreement of October 7, 1987. Seller and Purchaser each acknowledge unto Chase Bank of Maryland that neither party shall have any claim or cause of action against Chase Bank of Maryland in the event of any default in the performance of this agreement by the other party, except for any default by Chase Bank of Maryland. is. Recording. This agreement shall not be recorded among the Public Records of Dade County, Florida. In the event this agreement is recorded, this agreement shall thereupon immediately become null and void and of no further force and affect. 19. Notice. Any notice, election, or other communication requ red hereunder shall be delivered by hand or by certified United States mail return receipt requested, postage and charges prepaid, to the following addresses: To Seller: r x a with a copy to: F a t r x t :a Y f a TOL Purchaser: t Fja '}i Mr. Michael Williams The Williams Group r; Suits 650 ;.{ sd 400 Perimeter Center Terrace Atlanta, GA 30346 t d 'fl with a,mopy to: H. William Walker, Jr. , Esq. White & Case 200 S . Biscayne Boulevard it{, Miami, FL 33131 rur•7i-'°`y'rix-.'Ai.or,,G? I.�rS'f.'ti'Mr+�` -`t�� 7 t¢ 1 r $ 1 1`O1 r '�- 1'Lk kti{f 1..�Npt r r A •'" 7 s a t f ?V a r r'ry'r t"VV ,'1 r f �.yra 1t'7 r'R it ''k�jgr x f;Lr � R ('{ � 5•+�+a'it i�'r y'rh. ;zc s t r - r a i �S s Y `>•G 1'^'` A,} a 1,5{sr.Cs[!. ,,.�,�xrr5})G�,.kk'r: + r E r Z r,.r n t o 4 Y rt 'e �,��c�7r ';,+` `` 5�� -r;p• •. 7r ru �r � 1 3' k s Jv 4 j y r } z s ., h � %, i [ � 3 I � t'Ss t � u•" ¢'�� t}'° 1'a; f r• .xa } r.r x w� r� -,. r s r` tr+a et rtk r:..`, '�z-#rrat'� �r ?.it a y,yi�. +t a. ,_ .. .. .,,!. ,. ,.. _.,,..,. ..... Y wwt ,. �.+i.... :mac._-.. .. ., w .. .. nor._,.. ., ., ._.. iu>?+'x•,^_n.: s..i'.��..r` t_. ?I ,r,`"??..�. - ..'k ra f!: aY�'�� W SFnX JD S ,x 4„ y r ky_ yfv To Chase Bank of Maryland. Mr. Richard Byrne .E The Chase Manhattan Bank ' 101 Park Avenue New York, New York 20. Counterparts. This Agreement may be �3xecuted severally by the parties in multiple counterparts, -but-will constitute a single agreement between the parties -when each party has executed at least one counterpart hereof. IN WITNESS WHEREOF, the parties have set their' hands and seals hereto as of the`day and year first above`. written. { PURCHASER: { r: a J"es, cumming Genes 11 P t r Axe, lliams "`General' Partner' ,u SELLER: ; v9�G9-69 Ut-:iBt1 wM :ELtAtt-MigMI :i4. ESCROW AGREEHENT White & Case hereby agrees to hold and disburse the Deposit and Additional Deposit in accordance with the terms of the foregoing Agreement upon condition that, if Seller and Purchaser are unable to agree as to the manner in which the Deposits are to be disbursed, or if the Deposits become the subject of a controversy between Seller and Purchaser, Escrow Agent may, without liability or obligation to either Seller or Purchaser, commence an interpleader action in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County, Florida, in regard to the Deposits; and Seller and Purchaser, in consideration of Escrow Agent's agreement to hold the Deposits, agree to indemnify and hold harmless Escrow Agent from and against any losses, damages, costs or expenses, including reasonable attorneys' fees, related to or arising out of the performance by Escrow Agent of its duties hereunder. Seller further acknowledges that White & Case has acted as legal counsel to Purchaser in connection with the negotiation and preparation of this Agreement, and that provided that there' is no dispute between Seller and Purchaser as to the rights _of the parties with respect to the Deposits, or in the event of any such dispute after payment of the Deposits into the registry of the Circuit Court, White & Case will not be deemed to have any conflict of interest in continuing to represent Purchaser in connection with the transaction which is the subject of the Agreement. As to Escrow Agent, WHITE & CASE executed in the presence of: BY: $artner s; ,z S r} ✓ I J s 1 Exhibit B contingencies to Closing The Closing of this Property, and Purchaser's obligations hereunder, are contingent upon all of the following events occurring: 1. That on or before one hundred five (105) days after the effective date of this Agreement, the City of Miami has executed a written settlement, on terms acceptable to Purchaser, of Brickell vs. city of Miami, Case No. 88- 0230-CIV-Hoeveler, pending in the United States District Court for the Southern District of Florida, Miami Division; and on or before one hundred fifteen (115) days after the effective date of this Agreement, the City of Miami has reopened public bidding for the sale of the Brickell Park Property; and on or before one hundred forty-five (145) days after the effective date of this Agreement, the bidding process has been closed and Purchaser has been the successful bidder and has acquired the absolute (subject to stated conditions precedent), non -appealable right to acquire good, marketable and insurable title to the Brickell Park Property from the City of Miami; and on or before one hundred sixty-five (165) days after the effective date of this Agreement or December 27, 1988, whichever is earlier after the effective date of this Agreement, all conditions precedent to Purchaser's obligation to purchase the Brickell Park Property pursuant to Purchaser's successful bid have either been fully performed or satisfied, or waived in writing by Purchaser. In connection with the foregoing (i) Purchaser acknowledges that the minimum bid for Brickell Park Property is Thirteen Million Three Hundred Seventy -Five Thousand Dollars ($13,375,000.00); (ii) Seller acknowledges that Purchaser intends and will have the right to transfer this contract for its appraised value to the City of Miami as partial payment for Brickell Park Property; and (iii) Seller agrees to provide Purchaser at closing with a Nine Million Dollar ($9,000,Q00.00) non -recourse loan. The loan shall be evidenced by the existing mortgages which presently encumber the property, which mortgages shall be modified, extended and amended so that, as modified, extended and amended, the aggregate debt secured by the mortgages will, upon closing, be the sum of $9,000,000.00, with a maturity of two (2) years from closing, with interest at the rate of percent per annum, interest to accrue to, and be payable upon, maturity. In the event Purchaser acquires the Brickell Park property, the liens of the mortgages which presently encumber the Property shall be spread to encumber VIY�L'r�C'C Yi � f �1 1111/1YJ Yn�� •..�•• Exhibit h pace 2 the Brickell Park property and the Property simultaneously shall be released and discharged therefrom, provided there is no change in priority of the mortgages and provided further that the title to the Brickell Park property is free and clear of all liens and encumbrances including the claims of the Brickell family as set forth in the above -entitled proceedings. Prior to Closing hereunder, Purchaser will cause to be prepared and delivered to Seller a class 2 environmental audit, including soil test, to determine whether there is any evidence of the existence of toxic materials on the Brickell Park Property. In the event that such environmental audit discloses evidence of any such toxic materials, seller may elect not to extend the loan for which provision is made in subparagraph (iii) hereinabove, and in such event Purchaser iaay, at its option, terminate this Agreement, upon which the Deposits, the Additional Deposits and any interest accrued thereon immediately will be refunded to Purchaser, and thereafter this Agreement will be null and void and the parties hereto will have no further rights or obligations hereunder. If such environmental audit does not disclose any evidence of the existence of toxic materials upon the Brickell Park property and Seller therefor* makes the loan for which provision is made in subparagraph (iii) hereinabove, Purchaser will have no further obligations to Seller with respect to the presence of toxic materials upon the Brickell Park Property. Purchaser has an option to purchase the First Presbyterian Church property which lies adjacent to the Brickell Park property and contemplates that Purchaser may acquire such church property. In the event such church property is acquired by Purchaser, even though acquisition may be subsequent to the closing of the transaction as evidenced by this agreement, Purchaser agrees that the liens of such of the mortgages which presently encumber the Property which remain unsatisfied at the time of the acquisition of the church property shall also be spread to encumber the church property, which mortgages shall be inferior to any purchase money first mortgages obtained by Purchaser for the acquisition of such church property. The mortgagees of the mortgages shall, at or before closing, execute a participation agreement by and between the mortgagees pursuant to which the mortgagees shall agree as to their respective rights in and to the mortgages, as modified, extended and amended, their rights in and to the cash portion of the purchase price and all subsequent payments upon the mortgages. 53 of 69 EXHIBIT a_ Parcel 1 Beginning at a concrete monument set at the intersection of the Easterly line of Southeast First Avenue and the Northerly line of Southeast Fifth Street, which monument is also the Northwest corner of the tract herein described; thence Easterly along the prolongation of the Northerly line of _? Southeast Fifth Street, and at an angle of 900 - 00' - 30" with (Brickell Ave.) Southeast First Avenue, for a distance of 233.52 ft. to a concrete monument; thence North easterly along the arc of a curve of 25.0 ft. radius, for a distance of 31.01 ft. subtending an arc of 710.04' .35" to.a concrete monument; thence with the arc of a reverse curve of 40 ft. radius, for a distance of 85.45 ft. subtending an arc of 1220-23' -40" to a concrete monument; thence Easterly parallel with and 38.92 ft. North of the .prolongation of the Northerly line of Southeast Fifty Street for a distance of 294 ft. more or less, passing through a concrete monument at a distance of 285 ft. to the shore line of Biscayne Bay; thence South along the shore line of Biscayne Hay to a point where a line parallel with and 50 ft. South of the last described line intersects the said shore line of Biscayne Bay; thence Westerly parallel with and 21.08 ft. South of the prolongation of the Northerly line of Southeast Fifth Street for a distance of 298 ft. more or less, to a concrete monument; thence continuing Westerly along the arc of a curve of 40 ft. radius, the radius point of which is the same as that of the last previously described curve, for a distance of 64.79 ft. subtending an arc of 920 -43' -45" to a concrete monument; thence along the arc of a reverse curve of 25 ft. radius, for a distance of 27.97 ft. subtending an arc of 410 -29' -40" to a concrete monument; thence Westerly parallel with and 16 ft. South of the prolongation of the Northerly line of Southeast Fifth Street for a distance of 242 ft. to the Easterly line of Southeast First Avenue, and thence Northerly along said East line of Southeast First Avenue for a distance Of 16 ft. to the point of beginning. ! 1 1J' f A{ t }} i t C+ { s dy A'!'in tegir inter Anent Stree took Dade Thent said profs feet :Y t!113i- S i THIS INDENTURE, made this day of , 1989, between 97807 CANADA, LIMITED/LTEE, a Canadian corporation, and 392208 ONTARIO LIMITED, an Ontario corporation, or its successors or assigns by virtue of the order of the Honorable Prudence B. Abrams, Judge of the United States Bankruptcy Court, Southern District of New York, doing business as Atlantis on Brickell (collectively, the "Grantors") and THE CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, in the County of Dade, whose address is 3500 Pan American Drive, Miami City Hall, Second Floor, Miami, Florida 33133 (the "Grantee"). WITNESSETH: That said Grantors, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable considerations to said Grantors in hand paid by said Grantee, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said Grantee, and Grantee's successors and assigns forever, the property situate, lying and being in Dade County, Florida, more particularly described in Exhibit A attached hereto and made a part hereof ("Property"), and said Grantors do hereby fully warrant the title to the Property, and will defend same against the lawful claims of all persons whomsoever. This conveyance is subject to restrictions, conditions and limitations of record, if any. This conveyance is subject to certain covenants, restrictions and obligations of Grantee and its successors and assigns which covenants and restrictions and obligations are hereby imposed by Grantors as covenants and restrictions running, with the title to the Property hereby conveyed. The covenants, restrictions and obligations so imposed are the following: 1. The Property shall be and is hereby dedicated to the perpetual use of the public for park purposes only, which park shall be perpetually named "Brickell Park". 2. The Brickell` Park on the Property shall permanently include, without limitation, the Brickell family mausoleum, which shall be relocated from its present location, and an appropriate plaque or monument commemorating the William and Mary Brickell family; pro- vided however, if the condition of the mausoleum is such that notwithstanding the exercise of reasonable care by Covenantor, damage occurs in the course of relocation such that it is impractical to repair and use the mausoleum on the Property, then Covenantor shall not be responsible for such damage and the mausoleum shall be demolished and disposed of by Covenantor. Covenantor agrees to use all reasonable care in the relocation, or attempted relocation, of the mausoleum. 59 of 69 88. 1223: *N 3. Grantee will perpetually maintain the landscaping, mausoleum (if relocated to the property pursuant to paragraph 2 above and subject to normal wear and tear with the understanding that the condition of the mausoleum may eventually require removal of same) and other improvements of the Brickell Park located on the Property at Grantee's sole cost in accordance with Grantee's prevailing standards of maintenance. 4. Grantee shall have the right to locate or cause to be located a restaurant and other structures and concessions on the Riverpoint Property to encourage the utilization of the park by the public; provided that any restaurant constructed on the Riverpoint Property shall not occupy more than 15% of the square footage of the Riverpoint Property land existing on the date hereof prior to any condemnation. S. If prior to October 1, 2077 any of the covenants, restrictions or obligations set forth in the above paragraphs 1 through 4, inclusive, are not performed or complied with by Grantee, and such non-performance and non-compliance continues for a period of 60 days or more after written notice thereof from a representative of the Brickells, then (i) title to the Property, and all of the improvements located thereon, shall automatically be transferred to and vest in the Brickells in undivided interests equal to the percentages for such persons set forth in Exhibit B attached hereto, and their respective heirs, personal representatives, successors and assigns and (ii) all right, title and interest of Grantee in the Property and such improvements shall thereupon terminate and cease. The provisions set forth in the preceding sentence of this paragraph 5 shall terminate and be of no further force and effect on October 1, 2077. This paragraph, and the termination of the first sentence thereof on October 11 2077, shall not affect the continuing validity and enforceability of the covenants, restrictions and obligations under the other paragraphs of this instrument, and in addition to the rights and remedies of the Brickells under this instrument and applicable law, all of the foregoing , covenants, restrictions and obligations may be enforced and violations thereof restrained by any of the Brickells, and their respective heirs, personal representatives., successors and assigns, by a suit for specific performance or injunctive relief or by any other legal proceedings to compel compliance therewith or prevent the violation or breach thereof. The "Brickells" as used in this instrument shall mean Beatrice A. Brickell, James B. Brickell, William B. Brickell, E. Langdon Laws, Trustee, Edward Sanders, John Sanders, Paul Sanders, Archie K. Purdy and Mary G. Snyder and their respective heirs, personal representatives, successors and assigns. 6. The covenants set forth 3n paragraphs 1 through 3 above shall run with the land and this instrument shall be binding upon Grantee and also its successors in interest and shall inure to the benefit of the Brickells and their respective heirs, personal representatives, successors and assigns. Grantee by acceptance hereof agrees that Grantee, and its successors and assigns shall be bound by the covenants and restrictions above set forth and shall be bound by and required to perform the obligations of Grantee set forth above. IN WITNESS WHEREOF, Grantors have executed this Indenture the day and year first above written. Signed, sealed and delivered in the presence of: 97807 CANADA, LIMITED/LTEE, a Canadian corporation BY Hama: Title: (CORPORATE SEAL) 392208 ONTAZIO LIMITED, an Ontario corporation By Name: Title: (CGRPDFA= SEAL) STATE OF )as: COUNTY OF ) The foregoing instrument was acknowledged before me` this day of , 1989, by as of 97807 CANAIDA, LIMITED/LTEE, a. Canadian corporation, on behalf of the corporation. yea: Notary Public 61 of 69�""' a s n x 611 { it51 s i rz 2�.�C'iP4x�Y rhj% T .+ r w i ��2ffi�1�lalien etpirea. : 1r ( NOTARY SDI) a , J� TATB ff` O 111 COUNTY OF The foregoing instrument was acknowledged before me' this day of 1989. by ___ as , of 392209 ONTARIO LIMITED, an Ontario corporation, on behalf of the corporation. Notary Public My commission ezpires: n (NOTARY SEAL): RCS`: bb 1128J(11)a��x; �1" r . ,dog Stss• it.?a /sat f! goes to taa • eaattane irrslii /s�fMs;f ,stoesaa 1 �` frlli�iasO }tso alswi a iW tWeot is �`��.'r� �� tNtNaa oft M.!! teat tli.;t•Mt#s= tiat l! ts�sw/e,tset M.f/ less •ee., , Yaet aaf:,;• uet� =:r _ .•toes teoasa i ti 1! do fees �1 tat ff.lil.ir e41"r• sons as.•.•v ...... -- — -- s !Ui Est t cMrest. dNleat d 101'3tfsel:`Mt att rtanetiatoi s Yafe tortM aar►lees,$0 aw I!'�a�etti tus�e lairees an/ tifeee al Ms 'fsrttnreesetlt taraat a! Ooot1 all a! �Aet.;Mtstao at etfsrl�f:'eeteol.°:a '� �rsttti/'at 31 LA N/ o ewtraisna la aA. /aifsu u t=�.3±tatMt� teat. tatl�iat�oaat:iela• •f rtssa ed ti sssssait Rn�/es't� CieoteA iaoa M• !i.•11 11;�M��� et �Ca�q. �,lloKY. a r ' ae:-,: �::.. is ;eter3-: .':: .. ,:ass sr.. �::ets .•..�c - - Begin at the intersection at the easterly prolongation of the Norsh Line of it 3th street with the easterly line of Brickell Avenue, according to the plat of BUCULL POUT, recorded in flat Boole s at Page 34 of the Public &*condo of Dade County, Ploridas theses run Monherly as the last - only boundary line of Briehell Avenue lit Second Avenue bridge approach! across the Miami River, according to'Con- daunation Proceedings recorded July Uo 1l21, in circuit Court Minute Boole 36 at Page 290, of the public Records of Dade County# r1oridas along a circular curve to the loft. concave to the rest, having a radios of $33.28 foot, a ean- tral angle 150134300, for an are distance of 141.44 fast, to the Point of langeacyt thesuo eomtiaue along the Sant boundary line of said Southeast Second Avenue bridge ap- proach across the Ilia" &Lvov, along a line whose bearing • is North 01052/330 West, for a distance of 112.78 feet* to a points thence no Moutherlye easterly and southerly along a circular curve to the right concave to the South, having a radius of 35 feet, a central eagle to 235009'00• through an are distance of 143.65 test, to the point of Reverse Curves thence ram Soothwasterly Bad Southerly along a eis- enlAr curve to the loft, *@*Gave to tea Salt, having a ra- dius of 25 feato a central &all* of S3e090000, tarosgb as are distance of 33.69 feet to the *olat of langeaetl thence run south 0105213S• last, along a lino parallel to and 40 fast easterly from the Sasterl= been" I"s of said Southeast feeosd Avenue bridge approach access toe Miami River, isassured at right angles tberetes tot a diBtasee. of $5.33 foot to the point of Carves theme run Southerly " on a line parallel to and 40 foot eastarly ROMP Sensors is, at a normal to the easterly boundary line of said Southeast Second Avenue bridge approach &*roes tho Muni #.tear, along ,;' a carve to the left.* concave to the rest. saving a raeiss j of $73,31 feet# a central angle of is013.300s throvgs arc distance of 152.07 Poet to a poist as the Merth 1, 'an a� line of the Private Oriie u shown as the alOresa�d tint of fi POwade. along a SREGteLL EM?s thence son Mossk yi•2!•SS• North boundary line of said private Oslva, for a `Lotanepirr of 10 feet to too POEM? alllSGSlfltEMO, k 4 C _ l , i 4 r• f ! )� Ft�t. YiM ��Wf ihj� ---. Less and except the 4/15th interest owned by fell •ricks::. tt l their successors and ass&gnsp in that portion of the access Rlif granted by Crder dated March 9. 194S in Chancery Case No. 54.1.. which easement is more particularly described in Cshibi: *I* Disclaimer recorded in Official ROCOrda Sock 12371, Page :::6. EXHIBIT g 12.5� 3eatrice A. BriCkell 12.5% James B. Bridkell 12.5� William S. Brickell 12.5% E. Langdon Laws, Trustee 8.34% Edward Sanders 8.33% John Sanders 8.33%' Paul Sanders 12.5% Archie K. Purdy 12.5% Mary G. Snyder 1397J(1)/fits v. �Y. J , t f r' Wl l� h EXHIBIT F Names Beatrice A. Brickell James B. Brickell William B. Brickell E. Langdon Laws, Trustee Edward Sanders John Sanders Paul Sanders p�rNen aces 12.5�5 12.5� 12.5% 8.34% 8.33% 8.33% ,,%SAVE Nut OtTMEAMERICAS NEWTORK tl7 dE N N S V L V A NIA AVEN Ut N W WASHINGTON.a C. 333 SOJTH HOPE STREET. LOS ANGELES 20 aLACE VEND6RE, PARIS E6 GPtSHAM STREET. LONDON HWW:TG re Brickell Park WH1TF- & CASE SOUTHEAST FINANCIAL CENtrrR 200 SOUTH BISCAYNE BOULEVARD MIAMI, FLO1410A 33131-2352 (305) 371.2700 TELEX 9.02400213 Jorge Fernandez, Esq. City Attorney City of Miami, Florida 1 S.E. Third Avenue Miami, Florida 33131 Dear Jorge: 20-a. ICHINANCHO, CHIYObA=KU, tORVO IS OuttN'S ROAD CENTRAL, HONG KONG 50 RAMILS PLACE. SINGAPORE WAGER JARLSGAtAN 14. STOCKHOLM CUMHURIVET CADbES1 12 /10. ISTANSUL 21VA UR RAHMAN CADDESI 1?fI3, ANKARA December 28, 1988 This will confirm our several discussions concerning the pending agreements between the City of Miami and members of the Mary Brickell family relating to the Brickell Park Property (including the litigation pending - before the Federal District Court in Miami in Case No. 88 0230 CIV H EV - 0 I,ER), and between the members of the Mary Brickell family and our clfent, the Williams Group. At the special meeting of the City Commission at 4:00 yesterday afternoon, in response to comments made by Mr. Dan Paul, a. question was raised concerning the applicability to the Brickell Park property of Section 3(mm) of the City of Miami Charter, and whether the Park property, if conveyed to the Williams Group (or by the Williams Group to a remote grantee) might enjoy a "grandfathered" status exempt from the provisions of the Charter. The Williams Group concedes that the Brickell Park property, once conveyed to (and ,thereafter, if conveyed by) the Williams Group will be subject to Section 3(mm) of the Charter, and agrees to be bound by and,comply with the requirements of the Charter. In addition, concern was expressed at yesterday's meeting by Mr. Paul and others that specimen trees and other vegetation within the existing Brickell Park Property should be made available to the City for root pruning and =. replanting elsewhere. The pending agreement between the Brickell family and the City of Miami includes a cash ., donation to the City least $1,256,262.00 of which is, ATTACHMENT B- 1 68 of- 69 . Jorge Pernandea, Esq. _- available for the hard and soft costs of constructing Brickell Park, and which presumably can encompass the removal of trees from the existing Brickell Park property to the park to be constructed on the Riverpoint property, or elsewhere if the City chooses. The Williams Group agrees to make all of the trees on the Brickell Park property available to the City for root pruning and removal (at no additional expense to the Williams Group) at any time during the -two-year period following the acquisition of the Park property by the Williams Group, and thereafter to the extent that the root pruning and removal can be accomplished reasonably in advance of the intended development of the Park Property by the Williams Group. A I trust that the foregoing will resolve any3 questions concerning the applicability of Section 3(mm) of f the Charter to the Brickell Park property and the right of the City to remove specimen and other trees from the Park property prior to its development by the Williams Group. Thank you for your continuing cooperation in this matter. Very truly you H. William WalkeF, Jr. , cc: Michael Williams f� f .• i 154,C ..- t x rd'" is ?v l y{Y Z4 69 of 69 $8—a:22xi ' d TO Matty Hirai City Clerk r FROM : orge L. Fernandez ity orney CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM DATE December 30, 1988 FILE SUBJECT Brickell Park Litigation Settlement (Resolution No. 88-1222) REFERENCES. ENCLOSURES. This will confirm my telephone conversation with you at noon this date in which I advised you that I believe there is at least one objection to the completeness of the proposed settlement agreement as furnished yesterday to the City Commission. Accordingly, I contacted the Mayor who has informed me that a Special City Commission Meeting, as referred to in Resolution No. 88-1222, will commence at 4:00 P.M. today to consider said objection(s) and thereafter to consider the proposed Brickell Park Litigation Settlement. JLF:RFC:dfh:M122 88-1223 DD DOWNTOWN DEVELOPMENT AUTHORITY 191E One Biscayne Tower Miami, Flonda 33131 (305) 579-6675 M E M O R A N D U M December 30, 1988 TO: The Honorable Mayor and Members of the Miami City Commission FROM: Peter J. Andolina Deputy Director RE: Appraised value of the Riverpoint property. To assist you in your consideration of the monetary value of the Riverpoint property, I have attached the following information: 1. The summary pages from the November 5, 1987 appraisal performed by R. Florez Appraisal Services for the Downtown Development Authority. 2. The summary letter dated April 25, 1986 from an appraisal of Riverpoint conducted by Charles V. Failla h Associates, Inca on behalf of Freedom Savings and Loan Association. 3. Two press clippings that describe residential development proposals for Riverpoint that were never realized but do suggest the value of tha aito fnr, raaiAanti=1 navalunman*_ . FLOREZ Appraisal Serviced Roberto M. Florez, A.S.A., S.F.A., C.R.A. LICENSED REAL ESTATE BROKER•A"AISER 836 Ponce de Leon lloulevard - Suite 355 Coral Gahles, FL 33134 (305) 448-6435 Miami November 5, 1987 Mr. Peter Andolina Deputy Director. Downtown Developmaent Authority 1818 One Biscayne Tower Miami, Florida 33131 Dear Mr. Andolina: Pursuant to your request and authorization, I have made an appraisal on a Tract of Land consisting of 2.1843 acres of gross land area located at 401-453 Brickell Avenue. Miami, Florida. The subject property is legally described on page four of this appraisal report. In my opinion the Market Value of the Fee Simple Title to this property as of October 25, 1987 is: ELEVEN MILLION EIGHT HUNDRED FORTY FOUR THOUSAND DOLLARS ($11,844,000.00) Respectfully submitted, Roberto M. Florez A.S.A. 77777777.---,i 4? SUMMARY Or PACTS AMD CONCLUSIONS MARKET VALUE: HIGHEST & BEST USE: October 29, 1987 $11,844,000.00 Public Service Area. LANDSIZE: Gross Area: 95,148.98 SF or 21843 Acres Net.Area: 89,,733 SF or 2.06 Acres. 4 ZONING SPI -Special Perm FLOOD AREA:- ''.Zone,."A-E Requires Flood Insurance. FLOOD MAP: 125098- 191- CENSUS TRACT: 67' 0 6 TAX ASSESSMENT AND ANALYSTS Tax Year$ 1986 County Appraiser's Polio No.$ 01-0210-000-1050 Total Aggregate Assessed Land Value: $9,880,630.00 OR% $110.11 Per Square Foot of Net Land Area. in CUgHMAN ' WAKEVItLO i ;i - y iichii~ttla V. Parities bi► Alateccisticlss Inc, f prolettsionai A081 Prriperly Appraisers and Consultants t Aeallor5 l� 101 Madeira Avenue, floral Gables. Florida 33134 s (305) 445.5155 • i, it i_ i April 2 5r 1 1986 Freedom Savinga and Loan Association 1 Biscayne Tower , Miami, Florida attn: Mr. J. O'Hara Smith, Vice President re: Appraisal of 97,616.8'S:F. m/l.of "SPI-S" , Zoned Land at the S/E/C of the Miami River and Briekell Avenue, Niami, Dade County, Florida Gentlemen: In accordance with your request we have prepared afully ; documented appraisal report. on, the above referenced property. The subject property is currently improved with a rental apartment complex which has reached the end of its economic life ="5` and contributes no value to the site under the premise of Highest and Best Use. Therefore, this appraisal concerns itself solely with the land 'assuming it will be developed meeting the criteria of most. profitable utilization.' The property is appraised on -thee basis of an Unencumbered Fee Simple Estate. _1 In our opinion, ,ttie appraisal report conforms to Federal kS 14:Home. Loan Bank Board .Memorandum 1IR141b.. Terms and conditions of x each. sale were investigated to determine the cash equivalent price,: Therefore, the Market Vr�luc ascribed is cash equivalent. : r i tfr� Yr A2.4 USH �. WAX f ELti a .. v4 igiliii 1 UhoYNiWW IMO Nogp+'�i AOilrfNii�i iW! t;biNJiiiMi< i tisiti�o+i ' Page Two April 15 i 1,586 - The Appraisers Lmade a thorough inspection of the propartyi the immediate are&w and oarefully analyzed the data thereto pertaining in the following pages and exhibits and concluded that l 10,, 1985 ie. the Market Value of the subject property as of Apr $12a 00,000 or $125.00/S. L r 1 ' Re ectfully subf* t / tjry f a 1 -A.I cn v resident h'tx li tis i a• S S 9 -'- ! aJ. r"f y.s a[" ��5'� t n t.i CUSHMAN ° WAKEftVLD r0°. wsuc 01FOUINGDAY0 st K EUDWA 2014191116. ;QO/I VAM"Sm"s 1111110111 For sale: Bay, Brickell and River View By GLORIA ANDERSON The 2.2-acre tract occupied by Brickell Point Apartments. 401 Brickell Ave., has been listed for sale for S13.7 million by the owner, Riverpomt Inc. Shirley Cass, president of River - point. is with the Bank of In- ternational Credit, Ltd., Nassau. The vice president is Alfredo Veracasa of Delray Beach. Donald Allmon and Company, a 35-year-old Delray Beach firm that L. . specializes in luxury oceanfront F-FTIKI 1• , $ properties, is the real estate agent. IMil. This is its first Miami listing. Zoning would allow develop- ment of a project between 500,000 5OWNINP-• �+�. .•. W square feet and 750,000 square The Brickell Point Apartments feet, Charles Haibel, of Donald Allmon and Company, said. based He thinks a developer might on taking into account 50 per cent want to buy it and "land bank" it, of the adjacent, vacant public space although he said planners have told — in this case. the Miami River and him most of the office space in Brickell Avenue.. Brickell will be absorbed in three -`There's at least 575 feet of years. waterfront." he added. "If someone bought it now, and Mr. Haibel said the property is ban the pling and deevvelopment, it wofuld probably being marketed nationally and internationally. and four possible come on stream just about then." buyers are investigating it. he said. "We consider it the prime The building is currently assessed Brickell site." he said. "it has an for taxes at f10,000 and the property at $9.8 million. There was unobstructed view ups the river as no increase from the previous year. well as out to the bay. On the south bank of the Miami River just north of the Brickell _ Point Holiday Inn, the property has deeded acces from the traffic light at Brickell Avenue and,Fifth Street, Mr. Halbel said. J R tr �� o- DAY.- WEEK OF THUMDAY, MAV 1,1965 al towers I osetl Mr. Ogk hu signed a six month t �: ' `.: ' «e.'t ,. ; _ Sriekell Point option to buy the property from . v- . '-, ��. . ' - - Riverpoim, Inc., whose parent By PAT BRODERICK ' "' •G� jS• 4 .. company is F.V. Investments, a ;.:- .; ,c• .►i' a .;;5� pevelopers throughout the )RODERICK group of unidentified Americana 3 +s �* . •�G• country are anxiously waiting for i C• • , 3 million complex .of 615 and Venezuelans. Congress to decide whether to limit ''�'"' ' r :r i[ C. 3 sits for low- and moderate- They brought us in because we ; ,; {; ?. tc,.. • . multi -family housing bonds. .f CIt -9 esidents is being proposed specialize in downtown "We're waiting like hundreds of =''`!"'�'irk +.' G'iGC 1.2-acre waterfront site on public/private partnerships." he psi.. I. i,�;- mi River just north of the told Miami Today. others to see what ha •s S .it:� C_ Richard . Kahn, president of � Vt . < `:� , ri �[ C�!G� Z c Inn at Brickell Point. He hired Goodkin Research of • �,"jr .' •: • ..��'' , "' Northport Development Cor- . • Dade County Housing Ft. Lauderdale to study the market. ..: ;sti •.:: t ' is = poration of Minneapolis, said. y►. t:: '::=C: a Authority has initially "They agreed that the rental Ht is counting on S28 million in t` '' 'f' I!"� ' ;� i[ :�=►ve : z d $65 million or Dade market is there. but (here's a lack `� •:' ,: i" - • 30 Housing Finance Authority of product." tax exempt bonds to build a ent ,. million, 32-story apartment !~'�-•�:--'s;-1%s;`'>� „_• .•S;=r ,, f for Brickell Point Rental Were going after the Yuppie ! -�' - Gar•[ =•�'C: � t Y cots, Ltd., a proposed market." Mr. Ogle said. "There a complex west of the Miami Avenue I fiF•`?ti3, • !C ;�• ::;w ; t• P P Bridge. v ... th' :::� n[! limited partnership. real need for classy housing. and g t °' . •a"r' ' ' Last December. he said he hoped .�;.: t~ !. .� [ -;W.C: _' general partner is Brickell with Bayside and the Metromover. .. .. " ties Development Cor- the time has come. We wouldn't to break ground in April. if it n. headed by B. Tate Ogte, even be attempting this without worn t for this, we'd be close to closing. But we can't sell the bonds t' yi ! '5 411 ant of B. Tate Ogle those." Boca "This would be our first project until we know what's going to 1 �i``-.a i��F , .01 7ment Company. p � happen.•'. $" _ _ a specialist in historic reuse in Miami." he said. He now is If a cap is imposed, the Dade . �► s. Through the sate . of involved in a joint venture with the Housing Authority, JW rahipinterests, the developer Macon Terminal Station and the County g y :,:•''''•� _ - .t. `'' "•' itb raise about S9 million in Lafayette Hotel, both in Macon, issues the bonds, intends to review •i t. ;,; r;;tt, , ,._ _ �_��� Sasaki Associates, Inc., GA. its inducements and set prim., orities d.k xl;,�;' Gables, is the ' at- The developers hope Congress based on public need. 'planner, won't impose a cap on multi -family In the sate boat is Brickell The rental project for BrIckell Point would proposed project, which housing bonds. if they do, it will Promenade Associates. Ltd, which Include a TOO -loot public riverwalk, a landscaped include retail shops and be tough, but tve'II still go ahead," Plans use $17.1 million in bonds promenade park with marine access, a public health Club, , ants. would displace the Mr. Ogle said. to build a S19 million. 180,000 restaurants, bar and convenience store, tetutis cowls. a I e Point Apartments, 401 The involvement of the cit and square foot rental project on the Y l and spa, and a pedestrian plaza at the Brickell bridge i f Ave. The site is bounded count is crucial, he said. northeast corner of Brickell and y or actress to the apartments and rhratwalk. north by the Miami River. A key to the venture may be a 25th Road. :ast by Biscayne Bay, on the proposed new city department — y the Brickell Point Holiday the Miami Housing Conservation d on the west by Brickell and Development Agency — to be created if the Miami Commission authority requires at least 20 gives final approval. It is due for r of the units to be occupied action May 7. The department rnts with incomes that are would encourage public/private v than 80 per cent of Dade's moderate- and low-income housing income which is S28,000 a projects. sr a family of four. The "We hope to break ground in at tenants' incomes would nine months to a year. and have the be less than ISO per tent of project done in about 2 1/2 years., ian income. Mr. Ogle said: "But there's still a would be one 44-story and long way to go." N story tower and a six -level The housing authority's ap- garalte. Rent--for--the proval process — which includes ' and one- and two -bedroom Metro Commission action — takes ould range from S392 to about 115 days, and requires a month for lower -income detailed market analysis. and from S550 to $950 a Sec sketch. Page 23 or olbers. i I I� I I II