HomeMy WebLinkAboutR-88-1222RESOLUTION NO.
A RESOLUTION► WITH ATTACHMENTS CONDITIONALLY
LITIGATION IN THE
AUfiH6RIZING SETTLEMENT OF
U.S. DISTRICT COURT OF SOUTH FLORIDA BETwfEEN
W'ILLIAM B. $RICRELL, ET AL. AND THE CITY OF
THE CITY'S INTEREST IN
MIAMIt CONCERNING
BRICXELL PARK AND BURIAL GROUND, IN
AS
ACCORD WITH THE TERMS AND CONDITIONS
THE ATTACHED SETTLEMENT
SET FORTH IN
AGREEMENT AND UPON APPROVAL OF THE COURT;
ATTORNEY AND THE
FURTHER AUTHORIZING THE CITY
CITY MANAGER TO EXECUTE ALL DOCUMENTS AND
INSTRUMENTS NECESSARY TO EFFECTUATE THE
HEREIN SETTLEMENT.
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SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT made as of this day
of , 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
1. 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").
2. 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.
3. 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.
4. 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 S
attached hereto (the "Riverpoint Property"), to be accomplished
as set forth herein.
5. 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").
6. The Williams Group and the Brickells have entered
into an agreement dated as of December , 1988 (the "Exchange
Agreement") 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.
85-1222
aw "W
7. In furtherance of the settlement of the Lawsuit,
the Brickells are agreeable to M 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 neat 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;
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 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 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:
(i) demolition of the existing buildings on
the Riverpoint Property,
-2-
88-1222
M,
(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) 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 (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 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
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
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88-1222
fifteen (15) days after the expiration of such 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.
8. 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:
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
-4-
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.
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 2 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
instrument referred to in paragraph 2 of the above recitals,
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.
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88--1.22,E
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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 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 -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.
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C(tY OF MIAMI. PLOWA
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CITY CI_Ef;li s���ct :eial Seeion
ciV file 1 #1t�r~•-�1, FU �Jecember �7 r 1g�s�
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f I?uYauant to the authority vested in me as Mayor of the City
r df'Mianti Florida; Y, Xavier L. Suarez, do hereby calla special
t ` i , . meeting of the Miami City Commission to take place at 4s i��6 P.M.
f` on December 27, 19
88; in the City Commission Chambers, City Hall;
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tT5t��1 Pan American Drive, Miami; Florida, for the purpose of
ij considering a matter of urgent public import: namely, the y,
consideration of the settlement of litigation between the City o " .
Miami and the grickell heirs concerning grickell Park. l
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Y cc: Cesar H. Odio, City Manager
Matty Hirai, City Clerk
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Jor a L. - Fernandez, 'City Attorney q`,� ��
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Aurelio"Perez-Lugones;,.Legislative Administrator{
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 58-0230-CIVLROEV'ELER
WILLIAM
Bi BRICKELL, DAMES Bi
t9ICKELL
and BEAT910E A.
BRIGKELL,
Plaintiffs,
vs
TNAr. XMGMENT
CITY OF
MIAMI, et al.'
Defendants.
j
THIS CAUSE came before the Court on the Stipulation.;
f
for'Judgment filed by all parties hereto. In Count Ii,of`the
verified Complaint, Plaintiffs claim fee simple title to that
certain
property ("Parcel 1") described as:
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 ti�ih
`
Southeast Fifth Street, and at an angle of
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900 - 00' - 30" with (Brickell Ave.) �r
Southeast First Avenue, for a distance of
233.52 ft. to a concrete monument; thence ;rt
North easterly along the arc of a curve of
25.0 ft. radius, for a distance of 31.01 f t. s*
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 distances
of 85.45 ft. subtending an arc of 122°-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
• thence South along the, «}
line of Biscayne Bay, fsF�
;shore line of Biscayne Bay to a point where a
e
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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")
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'thence South 760 29, 25" Last, for a
'
distance of 221.10 feet', to a point in the
.
U.S. Harbor line along the West side' of
Biscayne Bay;
Thence South 50 27' 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 39' 35" West, parallel with
and 141.08 feet distant from the said
Northerly line of said S.E. Fifth Street
produced Easterly, for a distance of 670.29
feet to a concrete monument in the Easterly
line of Brickell Avenue;
Thence North 130 20' 55" East, along said
Easterly line of said Brickell Avenue, for a
distance of 141.08 feet, to the point of
beginning.
rby
operation of the reverter clause, contained in. the recorded
Deed attached as Exhibit B to the Complaint, providing, -.that the
City's;failure to maintain the property as a public park would
cause title.;to said property to reinvest in the grantors 'and;
their heirs or assigns. Plaintiffs further request"a
determination that the City is without authority to sell both M,
vs
properties. It is, upon consideration'
`
ORDERED AND ADJUDGED:
1. Counts I, IV and V of the ;Verified Complaint are
dismissed with prejudice.
` i F-
2. Plaintiffs' claims for declaratory relief in
,•
Counts II and III of the Verified Complaint are granted.
3. The Settlement Agreement executed between the ;$
parties is'hereby adopted and approved. In accordance l
therewith, the Court declares that fee simple title to the
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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.
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.
5. 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
-2 -
4 -
relief or by any other legal
proceedings to compel compliance
therewith or prevent the violation ar
breach thereof. The 08rickells" as
used in this instrument shall mean
Beatrice A. Hrickell, James $.
Hrfckell, William B. 8rickell, E.
hangdon Laws, Trustee, Edward Sanders,
John Sanders. Paul Sanders, Archie X.
Purdy and Mary G. Snyder and their
respective heirs, personal
representatives, successors and
assigns.
6. The covenants set forth in paragraphs
1 through 5 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 ONTARIO LIMITED, an
Ontario corporation
By
Name:
Title:
(CORPORATE SEAL)
STATE OF
)
)ss:
COUNTY OF
) J ,t:
" The foregoing instrument was acknowledged before me
this day of
, 2989, by
as
of 97807 CANADA, LIMITED/LTEE, a 4x
Canadian corporation,
on behalf of the corporation. 443
a
Notary Public r.
y *ab
F
LL
l t
1W
SALES AGREEMENT
A
THIS AGREEMENT made as of this 1
1988, is by and between 97807 CANADA, LIMITED,
Canadian corporation, and 392208 ONTARIO LIMI'
corporation, or its successors or assigns by ,
order of the Honorable Prudence B. Abrams, Jui
United States Bankruptcy Court, Southern Dist;
York, doing business as Atlantis on Bricke_11
referred to as "Seller�i) , and fHE wILLiAMS GR'
(hereinafter referred to as "Purchaser").
W I T N E S S E T H:
Upon the terms and conditions set f
Seller agrees to sell and Purchaser agrees to
that tract or parcel of land, together with i
containing approximately 2.43 acres, more or
with the rights of Seller in and to the easem
in Paragraph 6 (the "Property") as described
attached hereto, which by this reference is m
hereof, together with all and singular the ri
appurtenances pertaining thereto.
For and in consideration of the mut
herein, and for good and valuable considerati
receipt and sufficiency of which are hereby a
the parties hereto continue to be legally bou
follows:
ay of August,
LTEE, a
ED, an Ontario
irtue of the
,go of the
ict of New
hereinafter
UP
1. Deposit. On or before twenty
the date of acceptance of this contract, Purc
deposit, in cash, check or irrevocable letter
sum of $100,000,00 (the "Deposit") which sum
to White & Case AllEscrow Agent"), for the ben
and Purchaser hereunder. The deposit shall b
nteres -bear ng account seeking the highest
interest taking into consideration the expect
of the transaction. The account shall be dens
Seller and Purchaser for the Escrow Agent. T
shall remain refundable until all contingenci
met to the Purchaser's satisfaction as stipul
Exhibit B (the "Contingencies"). Upon satisf
waiver by Purchaser, of all Contingencies, or
one hundred forty-five (145) days after the e
of this Agreement if, but only if, Buyer does
rth herein,
purchase all
,provements,
ass, together
int referred to
,n Exhibit A
fde a part
Ihts and
al covenants
no, the
knowledgea,
d and agree as
ays (20) from
alter shall
of credit, the
hall be paid
fit of Seller
placed in an
ate of
d closing date
gnated by the
,e Deposit
is have been
�ted in
ction, and/or
at the end of
fective date
not terminate
AI
this Agreement as a result of failure of all
Contingencies to be satisfied within such 145
Deposit shall become non-refundable and shall
Closing to the Purchase Price (as herein deft�
Agreement has not theretofore been terminated,
than fifteen (15) days prior to Closing Purchi
deposit an additional $150,000.00 (the "Addit;
Deposit"). The Additional Deposit shall be ni
and shall also be applicable towards Purchase
interest earned upon the Deposit and Addition+
shall be applicable towards the Purchase Pric,
the transaction closes.
�f the
days, the
be applied at
ad). If this
not later
oar shall
onal
n-refundable
Price.
1 deposit
in the event
2. Purchase Price. The Purchase rice for the
Property shall be Eleven Million Five Hundred Thousand and
x0/100 Dollars ($11,500,000.00).
3. Payment. The Purchase Price s all be paid as
follows: At Clos ng (as hereinafter defined) Purchaser
shall pay to Seller by wire transfer, or cart lied check,
the cash portion of the Purchase Price (being the sum of
$11,500,000 less $9,000,000 represented by th mortgages
referred to in Exhibit "B") less the Deposit nd Additional
Deposit and interest accrued thereon. The ca h proceeds of
the sale shall be distributed to the mortgage s referred to
in. Exhibit "B" in accordance with the provisi no of Exhibit
nCn
4. Closing. The Closing shall be held ninety
(90) days follow ng t e date that all Conting ncies have
been not. However, in the event the transact on is not
closed by December 31, 1988, and even though uyer may have
as of such date additional time to satisfy th Contingencies
set forth in Exhibit "B" attached, Purchaser ust close by
the date of December 31, 1988, or upon failin to close,
this agreement shall then be null and void, a d all
Deposits, and interest accrued thereon, will a returned to
Purchaser.
Title will be conveyyed by_Warr nt Deed _
subject only to matters set forth in schedu a B, Section 2
of the Title Insurance Commitment approved by Purchaser
pursuant to Paragraph 6 of this Agreement. S ller will
deliver to Purchaser, together with the warra ty Deed, an
affidavit stating that there are no unpaid bi is for labor,
material or services to the Property, and tha no ouch
services have been performed to any portion o the Property
within a period of ninety (90) days prior to he Closing -
Date, the cost of which remains unpaidi that eller ip in
..2
88-1222 `
MW s
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 possessi n of the
property, the identity of such tenants and th terms of
their tenancy; and that Seller is not a "fore gn person" as
defined in Section 1445(b)(2) of the internal Revenue Coda
of 1954, as emended.
5.�Costs and Prorations. Seller hall pay for
documentary tax stamps and surtax stamps requ red to be
affixed to the deed, for the cost of the surely and for the
premium due upon Purchaser's owner title insu ante policy;
and Purchaser and Seller shall pay other clos ng costs
customarily paid by Purchaser and Seller in tie State of
Florida. Purchaser and Seller shall each pay their
respective legal fees associated with this tr nsaction.
Real property ad valorem taxes shall be prora ed at the
Closing. If the amount of such taxes is unde ermined at
Closing, the proration shall be based on esti ates computed
by utilizing the most recent applicable ad va orem tax rates
and assessments. In the event the actual amo nt of taxes
differs from the estimated figures, Seller an Purchaser
agree to adjust such prorations immediately u on
availability of the actual tax bill. All spe al taxes or
assessments approved or assessed on -and becom ng 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 P operty at
Closing. The title shall be subject to the m rtgages
referred to in Exhibit "B" and Purchaser shal accept title
subject to the mortgages provided the payment terms of such
mortgages are modified in the manner as provi ed in the
Exhibit. Within thirty (30) days after the r solution, to
the satisfaction of Purchaser, of the Briekel proceedings
referred to in Exhibit "B", seller will deliv r to Purchaser
a current survey of the Property prepared in ecordance and
certified as to compliance with the Minimum T chnical
Standards promulgated pursuant to Section 472 027, Florida
Statutes; 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 ti le insurance
commitment covering the Property and to notif Seller in
writing of any defects, objections, or eneumb anees
affecting the marketability of said title an isclo�sed by
examination of the survey and/or title insura ce commitment.
Seller shall then have a period of„m ixt days to cure
or terminate any such defects, objections, or encumbrances.
if seller fails to cure said title, then Purc aser may, at
-3-
88-1222
l I
its option, exercised within ten (10) days, 4
followings
one of the
(a) Waive any objections and consummate the
Agreement, without any adjustment in the pure &so price by
reason of such objections, or
(b) Terminate this Agreement
Seller, whereupon the Deposit will be immedia
to Purchaser.
Purchaser's obligations hereunder a
upon Purchaser receiving at closing a "marked
commitment, effective through recording of th
conveyance from Seller to Purchaser and from
exception" and all standard, pre-printed exce
than taxes for the year of closing, if then u
been removed; or, in the event that the stand
for rights of parties in possession has not b
to tenants in possession of portions of the P
limitation of such exception to rights of ten
only, together with affirmative insurance tha
rights will expire and terminate not later th
days after the effective date of the closing.
Purchaser acknowledges that access
is obtained through a private easement and n
road. Purchaser further acknowledges that P
not raise as an objection to the title or as
title the existence of such private easement
to the property is only available through au
easement; provided, however, that nothing he
construed as prohibiting Purchaser from obje
status of the title to the easement.
7. Warranties of Seller. Seller
and will make at Closing the to lowing warren
and representations to Purchaser with respect
Property. If any of these warranties, coven&
representations are now, prior to or at Closi
any material and/or adverse respect, the Pure
election, may either (i) terminate this Agree
notice to Seller, whereupon this Agreement sh
and void and of no further force or effect, a
and Additional Deposit shall be promptly refu
Purchaser; or (ii) proceed under the terms of
Agreement.
-4-
notice to
refunded
e conditioned
up" title
deed of
hick the "gap
Lions (other
Paid) have
rd exception
en removed due
operty, a
nts as tenants
such tenants*
n thirty (30)
o the property
a dedicated
chaser shall
defect in
nd that access
private
in shall be
ing to the
areby makes
iss, covenants
to the
is or
g untrue in
aser, at its
ent by written
11 become null
d the Deposit
ded to
this
LJ
(a) The Property is not to t
Seller's knowledge, based upon reasonable in
the present manager of the property, subject
or claims by tenants in possession extending
(30) days and that so long as this Agreement
force and effect, Seller will not lease any p
Property, excepting that Seiler may continue
apartments at the property on a month-to-mont
before closing, Seller shall either: (i) del
Purchaser and/or Purchasers' title insurer su
leases, tenant estoppel statements, affidavit
information and instruments as may be require
insurer, in accordance with standard title in
practices, to delete from Purchaser's title i
policy the standard exception for rights of p
possession, and/or to provide insurance with
rights of tenants, as provided in Paragraph 6
(ii) cause the Property to be completely vaca�
there are no persons or entities in possessiol
portion of the Property. In the event that tl
not been totally vacated on or before the clo
determined pursuant to Paragraph 4 hereof, an
elects not to provide the affidavits or other
specified in Subparagraph (i) hereinabove, th
deadline will be extended by up to thirty (36
to provide additional time during which Seller
to cause the Property fully to be vacated. I
of such thirty (30) days, the Property has at
completely vacated, and if Seller remains unw
option, to provide the affidavits or informat
in Subparagraph (i) hereinabove, then Purchas
(x) waive any requirement that Seiler perform
Property as set forth in Subparagraphs (i) or
hereinabove, and proceed to close upon the Pr
notwithstanding persons or entities in posses
portions thereof, or (y) terminate this Agree
which all Deposits and the Additional Deposit
accrued thereon, will be refunded immediately
and thereafter this Agreement will be null an
parties hereto will have no further rights or
hereunder.
(b) Seller has the full po
to make, deliver, enter into and perform pu
terms and conditions of this Agreement.
(c) Subject to the terms an
stated herein, this Agreement is a valid and
-5-
�e best of
airy made of
.o any leases
ieyond thirty
remains in full
►rtion of the
:o lease
► basis. At or
,ver to
bh copies of
� or other
1 by the
durance
�surance and
�rties in
respect to the
hereofs or
ed, so that
of any
e Property has
ing date, as
if Seller
information
closing
days in order
will attempt
at the end
11 not been
lling, at its
on specified
r will either
or deliver the
(ii)
party
ion of all or
ant, upon
, and interest
to Purchaser
void and the
obligations
and authority
nt to the
conditions
inding
88-1222
i
RLl
agreement of Seller, and enforceable in acc
tome.
(d) Seller has never stored
upon'the Property and has no knowledge of any
existence or storage of toxic materials on th
or before forty-five (45) days after the date
of this Agreement by Seller and Purchaser, Be
to be prepared and delivered to Purchaser a C
environmental audit, including soil tests, to
whether there is any evidence of the existenc
materials on the Property. In the event that
environmental audit discloses evidence of any
materials, Purchaser may, at its sole electio
this Agreement, in which event all Deposits,
Deposits find interest accrued thereon will be
immediately to Purchaser and thereafter this
be null and void and the parties hereto will
rights or obligations hereunder, or Purchaser
close upon the Property without credit &gains
in the purchase price, and in such event Sell
liability to Purchaser with respect to the ex
toxic materials on the Property.
The provisions of this Section shall survive
S. Eminent Domain. As of the date
Agreement, Seller warrants and represents that
knowledge of and has received no notice of col
threatened commencement of eminent domain or i
proceeding against the property or any portioi
the event of such commencement or threatened i
such actions against the Property or any port,
Seller shall immediately notify Purchaser, ant
shall elect within thirty (30) days by writtei
Seller, either (i) not to clone this transact;
event this Agreement will become null and vob
further force or effect and the Deposit and Ai
Deposit shall be promptly refunded to Purchasi
close the transaction notwithstanding such pri
which event the Purchase Price shall not be ri
Seller shall assign to Purchaser all of Sellei
any condemnation award or proceeds. Seller w
Purchaser, and will cause Seller's legal count
consultants to provide to Buyer, copies of al;
other information received by Seller or its ci
consultants concerning any proposed or pending
action against any portion of the Property ant
Purchaser of, and permit Purchaser or its legs
,ance with its
oxic chemicals
prior
Property. on
of execution
ler will cause
ass 2
determine
of toxic
such
such toxic
, terminate
he Additional
refunded
greement will
ave no further
may elect to
or diminution
r will have no
stones of such
Closing.
F of this
l it has no
imencement or
lny other like
F thereof. In
'ommencoment of
Ion thereof,
Purchaser
i notice to
lon, in which
l and of no
Iditional
ir= or (ii) to
�ceedings, in
educed but
-to rights to
,11 provide to
eel or other
, notices or
iunsel or
I condemnation
l will notify
it counsel or
W
�.,
other consultants, at Purchaserfs option and
attend and monitor, any meetings, negotiation
proceedings related to any threatened or pond
condemnation affecting any portion of the Pro
Notwithstanding the foregoing? Purcl
acknowledges that Purchaser has been informed
condemnation action b� the applicable governm
such condemnation action relating to the relo
Hriekell Avenue bridge across the Miami River
existence of such possible condemnation proce
not be deemed a violation of Seller's represe
warranties -set forth in this paragraph.
9. Maintenance of and Destru
xpenes, to
or other
ng
artys
aser
of a possible
ntal agency,
ation of the
The
din shall
tations and
(a) If the Property or any i provements on
the Property are destroyed or materially dame ad before the
Closing, Seller shall assign to Purchaser Sal errs right to
any insurance proceeds paid or payable to Sol er in
connection with such damage or destruction.
(b) Purchaser acknowledges t
intends to demolish the existing improvements
property. Purchaser shall not have the right
or rescind this Agreement in the event of any
suffered by the Property, provided Seller ass
Purchaser any insurance proceeds, if any.
(c) Purchaser represents and
the Seller that Purchaser has inspected the i
situated upon the Property and that Purchaser
with the condition of the improvements. Purc
have no cause of action against Seller for da
be sustained by reason of any latent or paten]
the improvements.
at Purchaser
upon the
to terminate
casualty
,gns to
warrants unto
provements
is satisfied
aser shall
ages which may
defects in
(d) Seller shall be obligate to maintain
such casualty insurance and public liability nsurance as
Seller may have upon the property and to rene any expired
insurance provided a premium for any renewed neurance is at
standards rates and not at any premium rate.
10. Seller's Default. If the pur,
Property is not consummate due --to Seller's Z
refusal to perform, the Deposit and Additiona
shall be immediately returned to Purchaser, a,
may exercise such rights and remedies as prov
allowed by law and/or in equity, including, w
-7-
hale of this
ilure or
Deposit
d Purchaser
dad for or
limitation, the right to seek and obtain spec fio
performance of this Agreement, excepting that
(a) Purchaser shall have no muse of Motion
against Seller in the event Seller defaults b reason of
Seller's inability to make title to the Prop& ty such as
required by the terms hereof and in which eve t, Purchaser's
sole remedy shall be the return of the Deposi and, if made,
the Additional Deposit. In the event of Sell is default,
and the return of the Deposit to Purchaser, i terest earned
upon the Deposit and Additional Deposit shall be paid to
Purchaser.
(b) In the event any portioJb
of the
Property is subject to any leases or claims tenants
extending beyond thirty (30) days after closg hereunder,
or in the event that prior to closing toxic emicals are
found upon the Property or it has been deternod prior to
closing that toxic chemicals have been storeupon the
Property, Purchaser's rights against Sellerall be limited
to actions for specific performance (subjecthowever, to
the Provisions of Subparagraphs 7(a) end [(erect)in
which event Purchaser shall not be entitledany
adjustment in the purchase price, or Purchasshall be
entitled to a return of all Deposits, and, made, the
Additional Deposit, and all interest accruehereon, but
Purchaser will not beentitled'tomainta1n'aact o for
damages.
11. Purchaser's Default. If the urchase of the
Property is not consummated due to Purchaser? default, than
Seller shall retain the Deposit, and the Addi ional Deposit
if the same has been paid at the time of such default, as
liquidated damages, together with interest ac rued thereon,
the parties hereto acknowledging that retenti n of the
Deposits as liquidated damages is Seller's so a and
.exclusive.remedy in the event of default by P rchaser.
12. Assignment. Seller shall, an does hereby
expressly consent and agree to any assignment by Purchaser
of Purchaser's rights hereunder pursuant to t e
contingencies or to any partnership in which ichael
Williams, James Cumming or an entity owned or controlled by
Michael Williams, is a partner, excepting tha any
assignment by Purchaser is conditioned upon t e ability of
such assignee to qualify for the mortgage ref rred to in
Exhibit "B". Any such assignee shall assume n writing all
the obligations and liabilities of Purchaser ereunder and
prompt written notice shall be given to Selle as to such
V
W
-MEMNON,
il*N'
assignment. Upon such assignment, the gale c,
this Agreement shall be consummated in the nai
and through the authorized officials of such
the performance and discharge of all obligati
Purchaser hereunder. A cop of such assignme
delivered to Seller at leas fen (i3)" ' ayaFr
13. Brokers. Each party hereby rl
warrants to the other that it has not consult,
negotiated with any broker, salesman, finder
connection with the transaction which is the ,
Agreement, other than Cushman & Wakefield (thi
and each party hereby agrees to indemnify and
harmless from and against any and all losses,
costs, expenses and liabilities, including bu,
to trial and appellate attorneys' fees, relat
arising out of any claim for a commission, fi
other compensation due or alleged to be due t
salesman, finder or agent other than Broker w
party has, or is alleged to have, dealt or co
connection with the transaction which is the
Agreement. Seller shall be obligated for -the
any, which may be due to Cushman & Wakefield.
14. Entire Agreement, This Agrees
constitutes the entire agreement of the parts,
be amended except by written instrument execu,
parties hereto. This Agreement has been nego,
length", each party represented by counsel of
and will therefore be construed on the basis
has had equal responsibility for the form and
hereof.
ntemplated by
e of, and by
ssignee for
ins of
t will be
oz �a cibsing.
presents and
d, dealt or
r agent in
ubject of this
„Broker"),
hold the other
damages,
not limited
dtoor
der's fee or
any broker,
,th whom such
isulted in
►ubject to this
commission, if
ant
s and may not
ad by all the
iated "at arms
its choice,
hat each party
content
is. Effective Date. The term "da a of this
Agreement" means the daEe on which this Agree ant shall have
been.duly.executed by the last of either Sell r 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 requires lit gation, then
the non -prevailing party hereby agrees to pay for all
associated legal fees and expenses of the pre ailing party.
17. Joinder. Chase Bank or Maryl
the execution of this contract solely for the
evidencing its consent to the sale, such cone
required pursuant to Agreement dated October
evidence its waiver of -its right of first ref
'9-
nd joins in
purpose of
nt being
, 1987, and to
.sal as set
forth in such Agreement, provided the transac ion as
evidenced by this Contract closes. In the ev nt the
transaction does not close, Chase Bank of Mar land shall
reserve such rights as it may have not forth n the
Agreement of October 7, 19a7. Seller and Pur baser each
acknowledge unto Chase Bank of Maryland that either party
shall have any claim or cause of action again t Chase Bank
of Maryland in the event of any default in th performance
of this agreement by the other party, except or any default
by Chase Bank of Maryland.
Is. Recording, This agreement sh 11 not be
recorded among the P blic Records of Dade Cou ty, Florida.
In the event this agreement is recorded, this agreement
shall thereupon immediately become null and v id and of no
further force and effect.
To Chase bank of Maryland:
Mr. Richard Byrne
The Chase Manhattan Bank
101 Park Avenue
Now York, New York
20. Counter arts. This Agreement may be
executed several y oy the parties in multiple counterparts,
but will constitute a single agreement betwee the parties
ESCROW AGREEHENT
White & Case hereby agrees to hold nd disburse
the Deposit and Additional Deposit in accord& ce with the
terms of the foregoing Agreement upon conditi n that, if
Seller and Purchaser are unable to agree as t the manner in
which the Deposits are to be disbursed, or if the Deposits
become the subject of a controversy between S ller and
Purchaser, Escrow Agent may, without liabilit or obligation
to either Seller or Purchaser, commence an in erpleader
action in the Circuit Court of the Eleventh J dicial Circuit
of Florida in and for Dade County, Florida, i regard to the
Depositsi and Seller and Purchaser, in consid ration 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, inclu ing reasonable
attorneys* fees, related to or arising out of the
performance by Escrow Agent of its duties her under. Seller
further acknowledges that White & Case has ac ed as legal
counsel to Purchaser in connection with the n gotigtion and
preparation of this Agreement, and that provi ed that there
is no dispute between Seller and Purchaser as to the rights
of the parties with respect to the Deposits, r in the event
of any such dispute after payment of the Depo its into the
registry of the Circuit Court, White & Case w 11 not be
deemed to have any conflict of interest in Co tinuing to
represent Purchaser in connection with the tr neaetion which
is the subject of the Agreement.
As to Escrow Agent, WHITE & CASE
executed in the presence of:
By:
Partner
t �:k
Exhibit 8
contingencies to closing
The Closing of this Property, and P rchaserOs
obligations hereunder, are contingent upon al of the
following events occurring:
1. That on or before one hundred ive (105) days
after the effective date of this Agreement, tie City of
Miami has executed a written settlement, on ti rms acceptable
to Purchaser, of Brickell vs. city of Miami, 1 ass No. SO-
0230-CIV-Hoeveler, pending in the United stat s District
Court for the southern District of Florida, M ami Divisions
and on or before one hundred fifteen (115) da s after the
effective date of this Agreement, the City of Miami has
reopened public bidding for the sale of the B ickell Park
Property; and on or before one hundred forty- ive (145) days
after the effective date of this Agreement, t e bidding
process has been closed and Purchaser has bee the
successful bidder and has acquired the absolu a (subject to
stated conditions precedent), non -appealable light to
acquire good, marketable and insurable title o the Brickell
Park Property from the City of Miami; and on ir before one
hundred sixty-five (165) days after the effec ive date of
this Agreement or December 27, 1988, whichave is earlier
after the effective date of this Agreement, a 1 conditions
precedent to Purchaser's obligation to purcha a the Brickell
Park Property pursuant to Purchaser's success ul bid have
either been fully performed or satisfied, or raived in
writing by Purchaser. In connection with the foregoing (i)
Purchaser acknowledges that the minimum bid for Brickell
Park Property is Thirteen Million Three Hundr d seventy -Five
Thousand Dollars ($13,375,000.00); (11) Sells acknowledges
that Purchaser intends and will have the righ to transfer
this contract for its appraised value to the ity of Miami
as partial payment for Brickell Park Property and (iii)
Seiler agrees to provide Purchaser at closing with a Nine
Million Dollar ($9,000,000.00) non -recourse 1 an. The loan
shall be evidenced by the existing mortgages hick presently
encumber the property, which mortgages shall a modified,
extended and amended so that, as modified, ex ended and
amended, the aggregate debt secured by the mo tgages will,
upon closing, be the sum of $9,000,000.00, wi h a maturity
of two (2) years from closing, with interest t the rate of
percent per annum, interest to accrue to, and be payable
upon, maturity. In the event Purchaser acqui es the
Brickell Park property, the liens of the mort ages which
presently encumber the Property shall be spre d to encumber
i
the Brickell Park property and the Property s
shall be released and discharged therefrom, p
is no change in priority of the mortgages and
further that the title to the Brickell Park p
and clear of all liens and encumbrances inclu
of the Brickell family as set forth in the ab
proceedings. Prior to Closing hereunder, Pur
cause to be prepared and delivered to Seller
environmental audit, including soil test, to
whether there is any evidence of the existenc
materials on the Brickell Park Property. In
such environmental audit discloses evidence o
toxic materials, Seller may elect not to exte
which provision is made in subparagraph (iii)
and in such event Purchaser may, at its optio
this Agreement, upon which the Deposits, the
Deposits and any interest accrued thereon imm
be refunded to Purchaser, and thereafter this
be null and void and the parties hereto will
rights or obligations hereunder. If such env
audit does not disclose any evidence of the e
toxic materials upon the Brickell Park proper
therefore makes the loan for which provision
subparagraph (iii) hereinabove, Purchaser wil
further obligations to Seller with respect to
of toxic materials upon the Brickell Park Pro
Purchaser has an option to purchase the First
Church property which lies adjacent to the Br
property and contemplates that Purchaser may.
church property. in the event such church pr
acquired by Purchaser, even though acquisitio
subsequent to the closing of the transaction
this agreement, Purchaser agrees that the lie
the mortgages which presently encumber the Pr
remain unsatisfied at the time of the acquisi
church property shall also be spread to encum
property, which mortgages shall be inferior t
money first mortgages obtained by Purchaser f
acquisition of such church property. The mor
mortgages shall, at or before closing, execut
participation agreement by and between the mo
pursuant to which the mortgagees shall agree
respective rights in and to the mortgages, as
extended and amended, their rights in and to
portion of the purchase price and all subsequ,
upon the mortgages.
Exhibit E
page 2
multansously
ovided there
provided
operty is free
inq the claims
ve-entitled
baser will
Class 2
etermine
of toxic
he event that
any such,
d the loan for
r.�..N.....o,
terminate
dditional
diately will
Agreement will
ave no further
ronmentml
istence of
y and Seller
s made in
have no
the presence
arty.
Presbyterian
ckell Park
cquire such
party is
may be
s evidenced by
s of such of
perty which
ion of the
er the church
any purchase
r the
gageos of the
a
tgagees
s to their
modified,
he cash
nt payments
88-~1222-
j
i
3. 1f any Contingency is not sati
fied or ;.
performed, or waived in writing by Purchaser,
on or before
5:00 p.m. on the last day an provided above !
r the
satisfaction, performance or waiver thereof,
end unless
Seller and Purchaser have agreed to extend thil
deadline for
such satisfaction, performance or waiver, this
Agreement
will automatically be terminated and the Deposit
and all
interest accrued thereon will be immediately
*funded to
Purchaser.
It is mutually agreed that the
foregoing
contingencies must be net to Purchaserfs comp
ate
satisfaction or waived by Purchaser in writing
before the
'Deposit becomes non-refundable and the Additilinal
Deposit
becomes due. Purchaser retains the right at
ny time to
terminate this Agreement for any reason until
such time as
all of the Contingencies have been not.
RIN
I '
f
r
I.
1
Exhibit !IC2
This is Exhibit "CIO to the Sales
Paragraph 3 of the Sales Agreement tecites that
the cash proceeds of the sale shall be distributed in
a000rdanae with the provisions of this Exhibit"C".
The parties acknowledge that the tide to the
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT made as of this day
of , 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
1 of 64
G. In furtherance of the settlement of the Lawsuit,
the Brickells are agreeable to (14F causing the kiverpoint
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 Cityto be
held in the Special Revenue Fund and used asset
forth below;
d) The Cash Donation plus any fundsreceivedas:
'
an award in any condemnation proceedings, or
conveyance in lieu thereof, taking a 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:
-2-
of, 64
.
�l
.'.Y'_ a�?4i - .i
{ F/
.e.ticl7�lt3e424!
(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-Q122
3 of 64
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.
8. 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:
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
-a-
4 of 64
0
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
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 l of the Brickell
Properties as a private burial ground under the dedication
-5-
5 of 64
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
90o - 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 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 glong 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 -434 -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 -294 -;-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.
i
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Parcel 2
Beginning at a concrete monument at the
intersection of the East line f BSickell
E. Fifth
Avenue with the NO
Street, according to plot recorded in Plat
Book Be at page 93, of the Public Records of
Dade County, Florida,
the
Thence run South 760 39a S.EStFifthnStreet
said Northerly line of
produced Easterly, for a distance of 233.52
feet to a concrete monument;
Thence Northeasterly along the arc of a cu"
with a radius of 25.0 feet, through an arc of
;10 04• 35", fox a distance of 31:01 feet,
to a concrete monument;
Thence continue Northeasterly af040.�hfeetC arof
a reverse curve with a radius o
through an arc of 1220 230 40", for a
distance of B5.45 feet, .to a concrete monument;
Thence South 760 39. 35• East, fora
distance of 321.10 feet, to 3-point in the
U.S. Harbor line along the West side of
Biscayne Bay;
Thence South 50 370 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 39- 35- West, parallel with
#,
and 141.08 feet distant from the said
Northerly line of said S.E. fifth Street
produced Easterly, for a distance of 670:29
feet to a concrete monument in the Easterly {, r
}! ;n
i. line of Brickell Avenue;
f ;
Thence North 130 20. 55" East, along said r`
Easterly line of said Brickell Avenue, fora. ,
distance of 141.06 feet, to the point of
beginning. $'§
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DEC E7 188 16:14
- :<::e:.. WMIIELCAtE-M10%1
satin at the intersection of the saeterly prolongation of
the wertA Line of sit !th street with the tastarly Ilse of
$nickel% Avenue, aeeoedLnl to the plat of RRICULL POUT,
recorded in ►tat soots s at Page 34 of the Wblic Records
of Dade Cou,ntXo Ploridal thence run Northerly on the tast-
eely boundary line of sriekell Avenue fit second Avenue
bridge approach? across the Muni River, according to Can*
da:anation Proceedings recorded July 1s, 1131, in Circuit
Court Minute cook 35 ae •age 2109 of the POlie Records of
Dade County, Pioridat &lass a circular carve to the left,
concave to the Nest, h&vLnl a radius of $32.31 toot* a ean-
trai &olio 13.131300, for an are distance of 141.44 feet,
to the point of ?angetcyl thence continue algal the last
boundary line of said southeast Seeoad Avenue bridge ap-
proach across tat Muni Miver, along a lice whose bestial
is North 01.52*359 Vest# for a disteaes of 112.78 feet• to
a point# thongs, runt somberly* lasterly had southerly along
a circular curve to the right concave to the South, having
a radios of 33 feet, a central aalie to 239.01100• through
an are distance of 143- s3 feet, to the gist Of 3teve84e
C% veo thence Eva southwesterly and Soutbasly &loss a air-
euiar curve to the left• sooeave to the Lst, having a Cam
ding of 33 feet, a central rills of 33001.0060 throath an
are distanes of 32.69 teat to the point of Tangeasyt thence
run south 614321330 last, along a line parallel to and 40
coat Usterlr from the tastarly bosh" line of said
Southeast Second Avenue bridge approach access the Mini
over, *assured at right angles tharote, for a distance
of 33.33 foot to the Tout of Curvet thongs tun southerly
on a line parallel to tad 40 toot tastarly free, measured
at a nomal to the tastarly bouadary line of said Southeas
Second Avesse bridge appreael across the Miami Mivet, alor
a curve to the left, aoaeave is the vent, ravine a r&diis
of 372.21 loot# a central Single of 13'13'30•, through an
are distance of 133.07 feet to a point as the North bound
line of the private f►rive as shorn as the aforesaid plat
SA1CllLL pOXV21 thence na Sesth 1663901%0 Vest, along a
North boundary Sine of said ftivate !hive, for a distane"
of 40 fast to the POINT OP StGUNINO.
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X44181'r C
UN1?Eb STATES DISTRICT COtIR
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 88-0230=CIV-HOEVELER
WILLIAM B. BRICKELL, UAHES B.
BRICKELL, BEATRICE A. BRICKELL,
MARY SNYDER, and ARCHIE H. PURDY,
Plaintiffs,
vs
srurTr. MON FOR JUDGMENT.
CITY OF MIAMI, et al.,
Defendants.
The parties hereto have entered into the :attached,.,
settlement agreement resoiving.
heir disputes, in this cause
and,;in:accordance.therewith',
request the entry, of the attached:
juSgment in this cause.
JORGE L. FERNANDEZ,.City Attorney
SHUTTS & HOWEN ;
ATTORNEY FOR DEFENDANTS,
ATTORNEY FOR: PLAINTIFFS,
CITY OF MLAMI and CESAR tJDIO
WILLIAM B. BRICKELL,
1100 AmeriFirst Building'_
JAMES.B: BRICKELL,; and '
One Southeast` Third Avenue
BEATRICE BRICKELL .'
Miami, Florida 33231
100 Chopin Plaza _ x5
1500 Edward: Ball Building.,
Miami, Florida 33131
BY:
BY:,
JORGE L. FEBNADTDEZ
SALLY M. RICHARDSON s Mkt
r
DWIGHT SULLIVAN, P.A.
ATTORNEY FOR PLAINTIFF-
y
INTERVENORS, MARY SNY.DER
j *
and ARCHIE K. PURDYMal
Southeast Financial Center
.3110
200 South Biscayne Boulevard
{ t°= 1 p ,R{J
Miami, Florida '33131-2388
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DWIGHT SULLIVAN, P.A.
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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")
described as:
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
pro fuced 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"
710 04' 350, for a distance of 31.01 feet,
to a`concrete monument;
F;
=M Thence continue Northeasterly among the arc of
a reverse curve with a radius of 40.0 feet,
fr G
through an arc of 1220 23' 400, for a
distance of 85.45 feet, to a concrete monument;
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Thence South 760 39' 35" Eaet, f6t a
distance of 321.10 feet, to a point in the
U.S. Harbor line along the West side of
Biscayne Bap;
Thence South 50 370 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 39' 35" West, parallel with
and 141.08 feet distant from the said
Northerly line of said S.E. Fifth Street
�•---� �.,..i....�.. ate,. A4,v+ane-Ea_ of 670.29
!�R iphardson, Esqu
Fernandez ,Esqu
sSullivan Esquir"e.:,:
#J Ex or 11 D
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.
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.
5. 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
19 of 04
a
telief of 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 S.
Brickell, William B. Brickell, E.
Langdon Laws, Trustee, Edward Sanders,
John Sanders, Paul Sanders, Archie K.
Purdy and Mary G. Snyder amd their
respective heirs. personal
representatives, successors and
assigns.
6. The covenants set forth 3n garagraphs
1 through S 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 rw+- ictions
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
STATE OF
)sa:
COUNTY OF
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STAT9 OF
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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
i
My commission
1
expires:
(NOTARY -SEAL)OR
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_ :4-:i WHIIt! CA5E-MIANI ... ••
':Ce:`+! �:... 3` tlit-t`. `.:i .. ,:!!• !.`.� !::tit +:
Begin at the intersection of the easterly prolongation at
the morth Line of ss Sth street with the gasterly line at
srickell Avenue, accordial to tan plat at 214CIza PQ1N=.
recorded in Plat Book I at Fag* 34 of the Public Records
of Dade County, Ploridas thence ma Northerly on the fast -
Orly boundary line of brickell Avenue M second Avenue
bridge approach) across the Maws Rives, according to Can*
damation Proceedings recorded July li, 1030, in Circuit
Count minute cook 36 at Page 290, of tee Public Records of
Dade County, tloridas &teat a eirsulas curve to the left,
concave to the Mast, having a radius of 332.20 foot, a cen-
tral angle 1S9131300, for an are distance of 141.44 lest,
to the Point of ?aa9sacyt than** continue •16119 the last
bourdaty line of said southeast Seeoad Avenue bridle ap-
proach across the Nisei River, along a line whose bestial
is North 0105213S• West• for a distance of 112.78 test• to
a points thence run Nerthesty, easterly sad southerly &long
a circular curare to the sight concave to the sesth, having
a radius of 35 feet, a central angle to 235009'00` through
an arc distance of 143.4S feet• to the point of Reverse
Curvos thence ran Southwastorly sad Southerly along a cir-
cular curve to the 169t, concave to thin fast, having • ra-
dtus•ot 33 feats a central &alto of S36091006, through an
are distance of 33.49 toot to the PoLat of lanlessyl thence
run south 11•S213S• taste along a line parallel to sad 40
test easterly Iron the easterly both" ties of said
Southeast Second Avenue bridle approach across the RLIAL
River, Seasured at right a,"Ase taerotos for a distaaee
of 33.33 feet to the Tout of CssM thence rue SouthstlY
an a line parallel to &ad 40 foot easterly trod, ssasured
at a nougat to the eastarly boundary line of said southeast
Second Avenue bridge appreaeD across the Mast River, along
• curve to tee left, concave to the Vast, haviel.A rad:•ss
of $72.21 tests a central &alto of 110131300s through an
are distance of IS3.07 teat to a point oa the North bounder
lint of tbo Private Drive as shown on, the aforesaid plat at'
SAICRtLL POINTS thence VISA Meese 16039,65' Post, along a
North boandart lino of said Private Drive, for a distance
of 10 feet to the P0101 of StGUNING,
:EC 27 2E 16:14 305 358 5745 PAGE. 03
23 of 64
1'
OF r-.Y
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. 5th 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. The Brickells shall convey to Williams good,
marketable and insurable title to the Brickell Properties at
Closing. Within twenty (20) days after entry of the Final
Judgment, Williams shall obtain an ALTA Form B owner title
insurance commitment covering the Brickell Properties and a
survey of such property. Williams shall have ten (10) days
26 of 64"'�:
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
then 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
-2-
27 of 64
88-1222'
r
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- 88-1222
28 of 64
V
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-
29 of 64 88--JL222
i
charges prepaid, to the following addreaaes:
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. Odic
City Manager t
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.
r.
14. This Agreement is further contingent upon (i) the
Sellers and Williams extending the closing deadline date in the
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 or
waiver of Contingencies (as defined therein) for an additionala
period to and including April 15, 1989 and (ii) the 'amendment
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 whet
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-
31 of 64
88-1222
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Begin at the intersection of the easterly prolongation of
the North Line of si StA street with the tasterly line of
iriekell Avenue, according to the plat of SmjCStLL paZRT,
recorded in plat soot B at page 34 of the public Records
of Cade County, floridaf thence run Mortherly on the tast-
erly boundary line of Briekell Avenue (22 Second Avenue
bridge approach) across the Miami Auer, according to'Con-
desnation proceedings recorded July lie 1921, in Circuit
Court Minute Book 26 at pals 290, of the public ascot" of
Cade County, Florida# along a circular curve to the left,
concave to the Nest, having a radius of 532.28 feet, a cen-
tral angle 150131300, for an are distance of 141.44 feet,
to the point of Tangency) thence continue along the last
boundary line of *aid Southeast Socond Avenue bridle ap-
proach across the Most, River, along a line whose bowing
Is North 010529350 West, for a distance of 112.78 test, to
a points thence run Moutherly, last*rly and Southerly along
a circular curve to the right concave to the South, having
a radius of 35 feet, a central angle to 2350091000 through
an are distance of 142.43 toot, to the point of Reverso
Curvet thence roe Southwesterly and Southerly along a cir-
cular curve to the left, concave to the taste be" a ra-
dius of 35 test, a central angle of 55009•000, through an
are distance of 23.69 toot to the Point of Tangem7l thence
run South 01032/356 last, along a line parallel to and 40
9
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�&_VC_:C vV. Itt I, kni 1LO"MOC 11$ — • �"
SALES AGREEMENT 1�''
.!®r
THIS AGREEMENT made as of this /Aday of JWqust,
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
0
i
u:: , ,r1.1 NMI Ir01.F�t�f.IFh1 I V:"
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 RAdditional
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
$llp500,000 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 "B" in accordance with the provisions of Exhibit
mcm,
4. Closin The Closing shall be held ninety
(90) days follow ng 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 OBN 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 '
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37 of 64
09-08-68 U5:I-IIhJ wMI,tol.Mot-hIMhI
0
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(t)(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. I` 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 mortgages 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
Statutes; 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
writing of any defects, objections, or encumbrances
affecting the marketability of said title as disclosed by
examinatio f th surve 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
t VYi
38 of 64
!C
I
f
09y08.e8 U5:l8PM WHITEbCpSE-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
rn'sA fttrthpr acknnwledcres that Purchaser shall
1
0
0
09-U8-62 05:19FIA NHMI.t4tt-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 and
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
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40 of 64
r I.t,.
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0
09-08-88 05:zurM WHIIELCASE-MIAMI
agreement of Seller, and enforceable in accordance w:.h 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
I
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
FUI-
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09-08-88 05:21FM NMIILLCF5E-RI..Ai cub.
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 insurance and 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-
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r
09-08-88 05: ZZFM WHITE&CASE-MIARI i Tt
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
. L.i P. 11 f, 3.I-D. bpZL ..3•.1
assignment. Upon such assignment, the sale contemplated by
this Agreement shall ba 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 entre agreement of the parties and may not
b d d t b itten instrument executed by all the
e amen a excep y "A.parties hereto. This Agreement has been negotiated Oat 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 requiresigation, 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 th'i 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
44 of 64
i 1 r
d
forth in such Ailreetento 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 not 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.
18. Recordin . 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 effect.
19. Notice. 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:
To Seller:
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To Purchaser • }' F
r Mr. Michael Willi"ems
r, Y, The Williams Group
} r r � Suite 650
' 400 Perimeter Center, Terrace
z Atlanta GA 30346 - Ott'}
' f with a copy to:��`$
y H. William Walker; ar. , Esq.
,tr t
WhiteCase
& ray e
a 200 S. Biscayne Boulevards ;
N �L Miami FL 33131
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SELLER:.
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00.08.88 0$:istm wM �BbE{i56=MIiiRi
ESCROW AGREEMENT
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Contingencies to Closing
Exhibit B
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); (11) 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 ($9,000,000.00) 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. tho ennrpeAtn tiamh - car-iiv-mA },., 4-hg,
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Exhibit B
page 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 may, 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.
EXHIBIT 0`
Parcel I
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 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 -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.
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patelel Pz
EXHIBIT 0
tCopy.► of Settlement Agreement is intentionally
deleted]
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.
56 of 64
0
2. 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.
5. 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
57 o12'64
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 5 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:
(CORMRA= SEAL)
392208 ONTAitIO LIMITED,
an
Ontario corporation
By
Name:
Title:
(C08POQtATE SE -AL)
STATE OF
)
5,
)ss:
COUNTY OF
)
The foregoing instrument was acknowledged before
me
this day of
, 1989, by
as
of 97807 CANADA, LIMITED/LTEE,
a °
Canadian corporation,
on behalf of the corporation.
Notary Public
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(NOTARY am)
SATE O9'
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)as:
COUNTY OF
)
The
foregoing
instrument was acknowledged before me
this day
of
, 19899 by
as
of 392208 ONTARIO LIMITED, an Ontario
'corporation, on behalf
of the corporation.
Notary Public
My commission
expires:
NOTARY SEAL) z
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segin at the intersection of the tasterlr prolongation of
the North Line of at sth street with the tasterly lies of
ariekoll Avenue, according to the plat of 214CRZLL POINT,
recorded it Plat be" s at sago 34 of the Public Reeorde
of Dade County, Ptorida# these* run Northerly os the east -
only boundary line of srickell Avenue !at second Avenue
bridge approach) across the Meal Rives, according to'Con•
dasaation Procoodings recorded July is, loll, in circuit
Court Minute Book 36 at Page 290e of the Public Records of
Dad* county# Plerida# &lost a Cireular curve to the left,
concave to the Nest, having a radius of s32.21 toot, a sen-
trot rill• iS•13e300# for an are distance of 141.44 toot,
to the Point of ?asgeney# thence section* along the east
boundary line o= said Southeast Second Avenue bridge, ap-
proach across the Mimi, Rivar, along a lie* whose bearing
is North 01032/359 West, for a distance of 112.75 test, to
a point# theses ran Northerly# tasterly ant! Southerly along
a circular curve to the sight concave to the Soothe having
a radius of 33 feet, a central &sgio to 235•99e000 through
an are distance of 143.43 feat, to the point of Reverse
Curves thence roe Southwesterly &ad Southerly along a a1z
eulas euswe to the &alto aoseave to Us taste having a ra.
dies of 35 toot# a Central angle of SS•0f•00•o throulb as
are distance of 33.69 foot to the feast of Sasges"I thence
run south 010521350 taste ale" a lion parallel to AM 40
feet tasterly from the tasterit boWl" line of said
Southeast second Avenue bridge approach across the Miami
River, measured at right "llis tboratoe for a distance
of 3S.33 lost to the foist of Casvet thongs ran Southerly
on a line parallel to and 4
0 feet tasterly Isom, moasused
at a nomal to the iasterly boundary line of said Southeal
Second Averse bridge approach across the Miasi Rivas, &lot
a curve to ens left# concave to the West, baving•a sed:us
of 373.29 fast# a central angle of 13.13*300# thsongh`an
are distance of 152.07 feet to a gist eo the Morth bd"d
line of the frivato Osiie as *boa## oo the aforesaid flat'
SAlrz%14 pOiW?# thence rm Rorib 7010391551 Meet. alo»q
Month boundary lass of said private mvee for a 4i441a,0
of 40 feet to the POINT alp 280i1t ING6
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