HomeMy WebLinkAboutR-86-0969J-86-1080
12/5/86
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE NEGOTIATED SALE OF
$2,000,000 CITY OF MIAMI, FLORIDA SUBORDINATED
PARKING SYSTEM REVENUE BONDS, SERIES 1986;
AWARDING THE SALE THEREOF TO WILLIAM R. WATTS AND
NORTHERN TRUST BANK, SUBJECT TO THE TERMS AND
CONDITIONS OF THE BOND PURCHASE CONTRACT AND THE
PURCHASE AND SALE AGREEMENT; APPOINTING A
REGISTRAR AND PAYING AGENT; AUTHORIZING THE
DELEGATION OF AUTHORITY TO EXECUTE CERTAIN
DOCUMENTS, INCLUDING A LETTER OF CREDIT, AND
OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE OF
SAID BONDS; PROVIDING FOR CERTAIN OTHER MATTERS
IN CONNECTION WITH THE ISSUANCE AND DELIVERY OF
SUCH BONDS; AND PROVIDING AN FFFECT'TVE DATE.
WHEREAS, The City of Miami, Florida (the "City") has by
ordinance, enacted on December 11, 1986 (the "Ordinance"),
authorized the issuance of not to exceed $2,000,000 City of
Miami, Florida Subordinated Parking System Revenue Bonds, Series
1986 (the "Bonds") for the purpose of acquiring certain land
including certain rights appertaining and adjacent thereto (the
"Project") to be used for the purpose of erecting and construct-
ing thereon public parking facilities within the corporate
limits of the City; and
WHEREAS, the City has received an offer from William R.
Watts and Northern Trust Bank, the owners of the Project, to
sell the Project to the Department of Off -Street Parking of the
City of Miami for $2,000,000 of the Bonds subject to the terms
and conditions set forth in the Bond Purchase Contract, a copy
of which is attached hereto as Exhibit "A" (the "Purchase
Contract") and in accordance with certain provisions of the
Purchase and Sale Agreement attached hereto as Exhibit "B" (the
"Agreement"); and
WHEREAS, the City now desires to sell its Bonds pursuant to
the Purchase Contract and in accordance with certain provisions
of the Agreement and in furtherance thereof to appoint a Paying
Agent and Registrar.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA AS FOLLOWS:
SECTION 1. Due to the volatile nature of the market for
municipal tax exempt revenue obligations, the critical
importance of the timing in the sale of the pond �h
CITY CORMi55uuiv
MEETING OF
DEC I i 19tlo
ESOLUTION No.'`0---969
willingness of William R. Watts and Northern Trust Hank to
acquire in exchange for the Project $2,000,000 in aggregate
principal amount of City of Miami, Florida Subordinated Parking
System Revenue Bonds, Series 1986, at interest costs favorable
to the City in the national market for tax exempt obligations,
it is hereby determined that it is in the best interest of the
public and the City to sell the Bonds at a negotiated sale, and
such sale to William R. Watts and Northern Trust Bank is hereby
authorized and approved.
SECTION 2. The Bonds are hereby sold to William R. Watts
and Northern Trust Bank upon the terms and conditions set forth
in the Purchase Contract and certain provisions of the
Agreement. The Mayor and City Clerk or other appropriate
officials or officers of the City and the Department of
Offstreet Parking are hereby authorized to execute such Purchase
Contract in substantially the form attached as Exhibit "A", with
such additional changes, insertions and omissions therein as do
not change the substance thereof and as may be approved by the
said officer or official of the City or the Department of
Offstreet Parking executing the same, such execution to be
conclusive evidence of such approval.
SECTION 3. The Bonds shall be dated and shall bear
interest payable at certain times and shall mature in the years
and be subject to redemption as provided in the Purchase
Contract and the Agreement which are incorporated herein by
reference.
SECTION 4. Sun Hank, National Association, Orlando,
Florida is hereeby appointed to serve as Paying Agent ayd
Registrar for the Bonds.
SECTION 5. All prior resolutions of the City inconsistent
with the provisions of this resolution are hereby modified,
supplemented and amended to conform with the provisions herein
contained and except as otherwise modified, supplemented and
amended hereby shall remain in full force and effect.
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w"" y69
SECTION 6. The Mayor, the City Manager, the City Clerk or
any other appropriate officers or officials of the City and the
Department of Offstreet Parking are hereby authorized and
directed to execute any and all certifications or other
instruments required by the Ordinance, Ordinance 10115 passed
and adopted on June 26, 1986 by the City Commission, the
Purchase Contract, this Resolution or any other document
referred to above as a prerequisite or precondition to the
issuance of the Bonds, including, but not limited to, the
Agreement and the Covenant and Easement Agreement described in
the Agreement and any such representation made therein by
officers or officials of the City shall be deemed to be made on
behalf of the City. Such officers and officials of the City and
the Department of Offstreet Parking are also hereby authorized
and directed to obtain a Letter of Credit substantially in form
and substance as described in the Agreement. All action taken
to date by the officers and officials of the City and the
Department of Offstreet Parking in furtherance of the issuance
of the Bonds is hereby approved, confirmed and ratified.
SECTION 7. This resolution shall take effect immediately
upon its adoption.
Adopted this ii day of December, 1w. � 1
(SEAL)
At
Mat-W Hirai
City Clerk =
PREPARED AND APPROVED BY:
G. Miriam Naar
Assistant City Attorney
i
APPROVED S TO FORM
AND CO ASS:
Lucia A. Doughert
City Attorney
06-091-372+/4
Javier L. Suarez
Mayor
f
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P
TO: Honorable Mayor and Members
of the City Commission
DATE: DEC :;; 5 1986
FROM: Roger M. CarA40a
SUBJECT: EXPANSION OF MUNICIPAL GARIGE
Director NO. 2 (90 SW FIRST STREET)
Department o
RECOMMENDATION:
It is recommended that the City Commission approve in substantial form a Bond
Purchase Resolution and an Emergency Ordinance authorizing the issuance. of
Subordinated Parking System Revenue Bonds in order to allow the acquisition
of land necessary for the expansion of Municipal Garage No. 2.
BACKGROUND:
Municipal Garage No. 2 (90 SW First Street) located near the Federal office
building was constructed in 1968. The facility contains 490 spaces. The
eastern side of the garage which is contiguous to the parcel proposed for
acquisition was constructed with breakaway walls in order to allow expansion
of the garage if the site could be acquired.
Municipal Garage No. 2 is one of the busiest facilities operated by the
Department of Off -Street Parking. Many days during the week the garage is
either full or near capacity. The neighborhood is undergoing redevelopment
with a number of nearby buildings either being restored or new construction
underway. It is anticipated that parking demand will expand resulting in a
shortage of parking in the area.
In early June, 1983 the Department of Off -Street Parking was approached by a
representative of the owner, William R. Watts, with a proposal to acquire the
property. The proposal allows the Department to obtain the property through
the issuance of a twenty (20) year bond at below market interest rates with
no principal payment until the twentieth year. The seller will be granted
retail construction rights along Southwest First Street and air rights above
the garage for which the Department of Off -Street Parking will be
compensated. The City will also benefit in that the anticipated office
structure will add approximately $100,000 annually to the City's ad valorem
tax income. The transaction is depicted in Attachment 1.
ANALYSIS:
The major provisions of the transaction include the following:
o The purchase price for the 14,481 square foot parcel is $2.0
million. The City will issue revenue bonds on behalf of the
Department of Off -Street Parking which will be acquired by Mr. Watts
at 6 percent interest for the first five years adjusting to 80
percent of the prime rate thereafter. The principal will not be
paid for twenty (20) years. After the seventh year a "put -call"
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provision allows Mr. Watts to call the bonds or the Department to
pay off the bonds with sufficient notice provided. A letter of
credit will ensure the quality of the bonds. The purchase price and
the value of the various considerations has been validated by an
independent appraisal performed by Stone and Clements Inc.
(Attachment 2).
o The Department will construct an addition to Municipal Garage No. 2
of approximately 277 spaces within three years after transfer of the
property or within six months after 50 percent of the air rights
building is pre —leased. This provision may be delayed annually by
mutual consent of both parties. The proposed garage will contain
approximately 4000 square feet of retail space and sufficient
foundation, elevator cores and utility easements to support an
office building of approximately twelve stories. Mr. Watts will pay
$200,000 of the cost to include these items in the garage
construction. If Mr. Watts does not initiate the air rights
building within seven years after the garage becomes operational the
Department may acquire the air rights at appraised value. If Mr.
Watts builds the air rights structure, he is required to make a
$40,000 annual payment for the air rights or may acquire these
rights for $480,000. Mr. Watts further retains cantilever rights
over Municipal Garage No. 2 if architecturally feasible for $8.28
per square foot or appraised value which ever is greater. Mr. Watts
will pay $10,000 annually for retail rights or be able to acquire
the retail rights for a $120,000 one—time payment.
o If the Department does not timely initiate construction of the
garage or if the construction is not completed for reasons other
than force—majeure, Mr. Watts may either build or complete the
garage. If this occurs the Department continues to manage the
facility but compensates Mr. Watts for his costs. Payment for the
debt on the existing facility and any operation and maintenance
costs have first lien on revenues of the combined facilities prior
to Mr. Watts receiving compensation.
REQUIRED APPROVALS AND TIME URGENCY:
The negotiations for this project have been underway for approximately three
years. Tt was originally anticipated that the concept would be brought to
the City Commission during January for "Committee of the Whole" review.
Recent interpretations by Mr. Watts legal counsel (Greenberg Traurig Hoffman
Lipoff Quentel & Wolff) and the Department bond counsel (Bryant Miller Olive/
Sparber Shevin Shapo Heilbronner) have determined that the new federal tax
laws will increase the Department's cost to close the transaction by $200,000
if the transaction is not closed by December 31, 1986. Therefore it is
necessary to receive approval of the following documents during the December
11, 1986 City Commission meeting:
2
o A Resolution authorizing the sale of $2.0 million City of Miami
Subordinated Parking System Revenue Bonds to William R. Watts and
Northern Trust Bank, as Trustee (Attachment 3): This resolution is
standard procedure for any bond sale and essentially authorizes the
sale of the bonds. Attached to the Resolution are the Bond Purchase
Agreement which defines the terms of the bonds and the Purchase and
Sale Agreement which defines the terms of the land acquisition
transaction.
o An Emergency Ordinance Authorizing The Issuance Of Subordinated
Parking System Revenue Bonds on first and second reading
(Attachment 4): It is necessary to approve this ordinance on an
emergency basis in order to meet the time deadline necessary to save
the $200,000 additional cost if the transaction is not completed
during 1986.
SUMMARY:
The recommendation to purchase the property contiguous to Municipal Garage
No. 2 is based upon rapid development in the neighborhood as well as the
existing facility reaching capacity. The negotiation for acquisition has
resulted in the ability of the Department or Off —Street Parking to acquire
the property for fair market value as appraised without the need for payment
of the acquisition cost until twenty (20) years in the future. The interest
rate to be paid is below market and the transaction allows for additional
retail along Southwest First Street as well as an air rights structure which
will be added to the City's tax role. Based upon the innovative nature of
this transaction and the ability of the Department of Off —Street Parking to
acquire this needed property without the risk of condemnation City Commission
approval is recommended.
Att . 4
3
.. .
MUNICIPAL GARAGE NO. 2 EXPANSION PROJECT
(90 S.N. Ist STREET)
k
NORTH ELEVATION
its
4
ATTACHMENT 2
of
"THE WATTS' TRANSACTION'#
(14,481+/- Square Foot Lot)
56 Southwest First Street
Miami, Florida
STONE AND CLEMENTS. INC.
"4obmr ApnWar • Cir wkw • A afro
t
RORERT STONE, SR., M.A.I.
CHARLZS L. CLZMZNTs, III
STONE AND CLEMENTS, INC.
Lcsfrwd rod Estft ep"
KZNDALL ExEcVTlvE CENTER
0555 NORTH KZNDALL DairvE
SUITE 103
MlAxf. FLoRIDA 33176
April 16, 1986
Mr. Roger Carlton,
Ezeeutive Director
Miami Parking System
Department of Off -Street Parking
190 N.E. 3rd Street
Miami, Florida 33132
Re: File No. 93586
Evaluation Analysis/Consulting Assignment
$'The Watts $ Transactional
14,461+/- Square Foot Lot
56 S.W. First Street
Miami, Florida
Gentlemen:
TELEPHONE
(305) 971-9000
In accordance with your request, the accompanying $#Evaluation
Analysis/Consulting Assignment" reflects our opinions and
conclusions concerning the current negotiations relative to the
contemplated acquisition of the captioned property; as said
transaction directly relates to the DEPARTMENT OF OFF-STREET
PARKING.
The subject property, also known as IlThe Watts' Property",
consists of a 14,483,+/- square foot vacant lot lying immediately
east of Municipal Garage No. 2 operated by the DEPARTMENT OF
OFF-STREET PARKING. The subject lot under analysis is
geographically located on the southerly -side of S.W. First
Street, approximately two hundred (200) feet east of SeW. First
Avenue, and is currently utilised as a surface parking lot
operated by APCOA, Inc. (Airport Parking Corporation of America,
Inc.). The subject parcel basically conforms to a rectangular
configuration,; with the exception of a 2,176+/- square foot
„out-parcellf located at the extreme southwesterly sector of the
property adjacent to the IlZast-West Flyover to Downtowntl (I-95
Exit Ramp). The subject property lies within the IICBD-1/9110
Central Business District Zoning Classification.
V
Miami parking system
Department of Off-street Parking
April 16, 1986
Naga Two......
The DEPARTMENT OF OFF-STREET PARKING has expressed an interest in
acquiring the subject site for the eventual expansion of Municpal
Garage No. 2 from its present 490 car capacity to a total of 767
parking spaces, or a 277 car addition. The current negotiations
are somewhat „uniqusll, and incorporates
purchase price of $2 million is to be funded via tax
exempt revenue bonds;
the contemplated garage structure addition will
include 4,000+/- square feet of retail shell space,
and sufficient foundation/utility corridors/elevator
shafts/lobby area for an air rights building of
approximately twelve (12) stories;
Mr. watts, the current property owner, will
reimburse the DEPARTMENT OF OFF-STREET PARKING
$200,000 toward the cost of the facilities necessary
to support the retail and air rights areas reserved;
- Mr. watts, the current property owner, shall be
granted 11cantilever rights" over the existing
Kunicipal Garage No. 2 at a minimum compensation of
$8.28 per square foot of building footprint, or its
respective determined Market Value, whichever is
greater;
- Mr. watts, the current property owner, shall be
encumbered with annual air/retail rights payments of
$50,000 ($40,000 + $10 4001 respectively).
The primary function of the accompanying study is to evaluate the
basic terms and conditions of the contemplated transaction in
order to ascertain the financial feasibility of "The watts'
Transactions• as related to the DEPARTMENT OF OFF-STREET PARKING;
or in essence, to analyse said transaction to quantify whether
the terms and conditions are advantageous to said DEPARTMENT as
directly compared to current market parameters.
The research .and analysis compiled, although in summary form,
should provide you with appropriate information for your decision
making process. Certain assumptions and limiting conditions have
been made and are an integral part of the conclusions reached.
to our summary analysis and investigations, we have considered
all pertinent factors relevant to the assignment. The analyses
and conclusions represent our best professional judgment and
application of pertinent valuation methods and techniques.
STONE AND CLLMZNTS• INC.
V
Niami Parking System
Department of Off -Street Parking
April 16, 1986
Page Three......
We hereby certify that we have no present nor contemplated
I interest in the captioned property, and that neither our
employment nor compensation for the Valuation Analysis is
contingent upon the amount of valuation reported.
IPlease feel free to call us if you desire additional supporting
data which may not have been incorporated herein.
It has been a pleasure to be of service.
RS/sb
Respectfully submitted,
STONE AND CLEMENTS, INC.
Robert Stone, Sr., M.A.I.,
Real Estate Analyst
STONE AND CLEMENTS, INC.
k
$2,000,000
THE CITY OF MIAMI, FLORIDA
Subordinated Parking System Revenue Bond, Series 1986
BOND PURCHASE CONTRACT
On , 1986, WILLIAM R. WATTS and NORTHERN TRUST
BANK, trustee (collectively, the "Purchasers"), and THE CITY OF
MIAMI, a Florida municipal corporation (the "City"), enter into
this Bond Purchase Contract, dated , 1986 (the
"Purchase Contract"). Upon execution an277aelivery of this
Purchase Contract, it shall be binding upon the City and the
Purchasers. Any word not conventionally capitalized and not
defined herein shall have the meaning indicated in the Ordinance
(as hereinafter defined).
1. Purchase and Sale. Upon the terms and conditions and
upon the basis of the representations, warranties and agreements
set forth herein, the Purchasers, jointly and severally, hereby
agree to purchase from the City and the City hereby agrees to
sell and deliver to the Purchasers, the City's Subordinated Park-
ing System Revenue Bond, Series 1986 in the principal amount of
$2,000,000 (the "Bond"). The Bond shall be dated and shall
accrue interest from the date of closing (as defined below) ini-
tially as of , 1986, and shall have the maturity and
bear interest at the rate and in the amount set forth in the
Purchase and Sale Agreement hereafter described, such interest
being payable on April 1, 1987, and semi-annually thereafter on
April 1, and October 1 of each year. The Bond shall have the
prepayment provisions described in the Purchase and Sale Agree-
ment. The purchase price for the Bond shall be the Property as
defined in the Purchase and Sale Agreement dated as of 01
1986 (the "Purchase and Sale Agreement") between the Purchasers
and The Department of Off -Street Parking of the City of Miami
(the "Department"). Payment of such purchase price and delivery
of the Bond and the other actions contemplated hereby to take
place at the time of such payment and delivery are hereinafter
referred to as the "Closing") . Said offer of the Purchasers to
purchase the Bond shall extend until 11:30 p.m., Miami, Florida
time, on the date hereof unless previously withdrawn or extended
in writing by the Purchasers.
2. The Bond. The Bond shall be as described in the
Purchase and Sae Agreement, and shall be issued and secured
under the provisions of Ordinance No. 10115 adopted by the City
on June 26, 1986 and Ordinance No. adopted by the City on
December _, 1986 (together, the "Or l-nance").
3. Representations, Warranties and Agreements. The City
and the Department hereby represents, warrants and agrees as
follows:
(a) The City is and will be at the date of Closing
duly organized and validly existing as a municipal corporation
with the powers and authority set forth in the Florida Constitu-
tion, Chapter 166, Florida Statutes, as amended, its Charter and
any other applicable laws (collectively, the "Act");
(b) The City has full legal right, power and author-
ity: (i) to enter into this Purchase Contract, the Purchase and
Sale Agreement dated as of December , 1986, by and between the
Purchasers and the City (the "Purchase and Sale Agreement") and
the Covenant and Easement Agreement dated as of December ,
1986, by and between the Purchasers and the City (the "Covenant
and Easement Agreement"), (ii) to enact the Ordinance, (iii) to
sell, issue and deliver the Bond to the Purchasers as provided
herein, and (iv) to carry out and consummate the transactions
contemplated by this Purchase Contract and the Ordinance and the
City has complied, and at the Closing will be in compliance in
all respects, with the terms of the Act and with the obligations
on its part in connection with the issuance of the Bond contained
in the Ordinance, the Bond and this Purchase Contract;
(c) By all necessary official action, the City has
duly adopted the Ordinance, has duly authorized and approved the
execution and delivery of, and the performance by the City of the
obligations on its part in connection with the issuance of the
Bond contained in the Bond, the Ordinance and this Purchase Con-
tract and the consummation by it of all other transactions con-
templated by this Purchase Contract in connection with the issu-
ance of the Bond; the Ordinance constitutes a legal, valid and
binding obligation of the City, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, and
similar laws affecting creditors' rights and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or -at
law); and the Bond, when issued, authenticated and delivered to
the Purchasers in accordance with the Ordinance and this Purchase
Contract, will constitute the legal, valid and binding obligation
of the City, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting cre-
ditors' rights and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law);
(d) The City and the Department are not in material
breach of or material default under any applicable constitutional
provision, law, or administrative regulation of the State of
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Florida (the "State") or the United States or any applicable
judgment or decree, or any -loan agreement, indenture, bond, note,
or material resolution, agreement, or other material instrument
to which the City or the Department is a party or to which the
City or the Department or any of their respective properties or
assets are otherwise subject, and no event has occurred and is
continuing which with the passage of time or the giving of
notice, or both, would constitute a default or event of default
under any such instrument; and the execution and delivery of the
Bond, this Purchase Contract, the Purchase and Sale Agreement,
the Covenant and Easement Agreement (as defined in the Purchase
and Sale Agreement), and the enactment of the Ordinance, and
compliance with the provisions on the City's or the Department's
part contained therein, will not conflict with or constitute a
breach of or default under any constitutional provisions, law,
administrative regulation, judgment, decree, loan agreement,
indenture, bond, note, resolution, agreement, or other instrument
to which the City or the Department is a party or to which the
City or the Department or any of their properties or assets are
otherwise subject, nor will any such execution, delivery, adop-
tion, or compliance result in the creation or imposition of any
lien, charge, or other security interest or encumbrance of any
nature whatsoever upon any of the property or assets of the park-
ing system of the City (the "Parking System") or the revenues
thereof under the terms of any such law, regulation or instru-
ment, except as provided by the Bond, the Ordinance, the Purchase
and Sale Agreement and the Covenant and Easement Agreement;
(e) All authorizations, approvals, licenses, per-
mits, consents and orders of any governmental authority, legisla-
tive body, board, agency or commission having jurisdiction of the
matter have been duly obtained which are required for the due
authorization by or which would constitute a condition precedent
to or the absence of which would materially adversely affect the
due performance by the City of its obligations in connection with
the issuance of the Bond under this Purchase Contract and the
Ordinance;
(f) The Bond, when issued, executed and delivered in
accordance with the Ordinance and sold to the Purchasers as pro-
vided herein, will be a validly issued and outstanding obligation
of the City, entitled to the benefits of the Ordinance; and upon
such issuance, execution and delivery the Ordinance will provide,
for the benefit of the holders from time to time of the Bond, a
pledge of, subject to any amounts required to be paid to the
United States pursuant to any rebate requirement, amounts in the
General Reserve Account established under the Ordinance; and
(g) As of the date hereof, there is no action, suit,
proceeding, inquiry or investigation, at law or in equity, before
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86 5
or by any court, government agency, public board or body, pending
or, to the best knowledge of the officials of the City, threa-
tened against the City, affecting or seeking to prohibit,
restrain or enjoining the sale, issuance or delivery of the Bond
or the collection of the Revenues (as defined in the Ordinance),
or the pledge of, subject to any amounts required to be paid to
the United States pursuant to any rebate requirement,•amounts in
the General Reserve Account to the repayment of the Bond, or con-
testing or affecting as to the City the validity or enforceabil-
ity of the Act in any respect relating to authorization for the
issuance of the Bond, the Ordinance, this Purchase Contract, the
Purchase and Sale Agreement and the Covenant and Easement Agree-
ment or contesting the tax-exempt status of interest on the Bond,
or contesting the powers of the City or any authority for the
issuance of the Bond, the enactment of the Ordinance, or the
execution and delivery by the City of this Purchase Contract, the
Purchase and Sale Agreement and the Covenant and Easement Agree-
ment.
4. Closing. At 10.00 a.m., Miami time, on December ,
1986, or at such earlier or later time as may be mutually agreed
upon by the City and the Purchasers, the City will, subject to
the terms and conditions hereof, deliver the Bond in fully regis-
tered form to the Purchasers in type -written form, duly executed,
together with the other documents hereinafter mentioned, and,
subject to the terms and conditions hereof, the Purchasers will
accept such delivery and pay the purchase price of the Bond as
set forth in Section 1 hereof. Delivery and payment as aforesaid
shall be made at the offices of or such
other place as may be mutually agreed upon by the City and the
Purchasers.
5. Closing Conditions. The Purchasers have entered into
this Purchase Contract in reliance upon the representations and
warranties of the City and the Department contained herein and in
reliance upon the representations and warranties to be contained
in the documents and instruments to be delivered at the Closing
and upon the performance by the City and the Department of their
respective obligations hereunder, both as of the date hereof and
as of the date of the Closing. Accordingly, the Purchasers'
obligations under this Purchase Contract to purchase, to accept
delivery of and to pay for the Bond are conditioned upon the
performance by the City and the Department of their obligations
to be performed hereunder and under such documents and instru-
ments at or prior to the Closing, and are also subject to the
following additional conditions:
(a) The representations and warranties of the City
and the Department contained herein shall be true, complete and
correct on the date hereof and on and as of the date of the
Closing, as if made on the date of the Closing;
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(b) At the time of the Closing, the Ordinance shall
be in full force and effect in accordance with its terms and
shall not have been further amended, modified or supplemented;
(c) At the time of the Closing, all necessary offi-
cial action of the City, the Department and the other parties
thereto relating to this Purchase Contract, the Purchase and Sale
Agreement and the Covenant and Easement Agreement and the Bond
shall be in full force and effect in accordance with their
respective terms and shall not have been amended, modified or
supplemented in any material respect, except in each case as may
have been agreed to by the Purchasers; and
(d) At or prior to the Closing, the Purchasers shall
have received copies of each of the following documents:
(1) The Ordinance certified by the City Clerk under
seal as having been duly adopted by the City Commission and
as being in effect, with such supplements or amendments as
may have been agreed to by the Purchasers and the Purchase
and Sale Agreement and the Covenant and Easement Agreement
executed by all parties thereto;
(2) The opinion, dated the date of the Closing and
addressed to the City, of Bryant, Miller and Olive, P.A.,
Tallahassee, Florida and Sparber, Shevin, Shapo, Heilbronner
& Book, P.A., Miami, Florida, Bond Counsel, in a form
acceptable to the Purchasers to the effect that interest on
the Bond is excluded from gross income from Federal income
purposes (other than with respect to the alternative minimum
tax and the environmental tax);
(3) An opinion, dated the date of the Closing and
addressed to the Purchasers, of Lucia A. Dougherty, Esq.,
City Attorney (or such other counsel to the City acceptable
to the Purchasers) to the effect that (i) this Purchase Con-
tract, the Purchase and Sale Agreement and the Covenant and
Easement Agreement have been duly authorized, executed, and
delivered by the City and constitute binding and enforceable
agreements of the City in accordance with their respective
terms except to the extent that the enforceability of the
rights and remedies set forth herein or therein may be
limited by bankruptcy, insolvency or other laws affecting
creditors' rights; (ii) the City, with respect to the Park-
ing System, is not in material breach of or in material
default under any applicable constitutional provision, law
or administrative regulation of the State or the United
States or any applicable judgment or decree or any loan
agreement, indenture, bond, note, material resolution,
material agreement or other material instrument to which the
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City is a party or to which the City or any of its property
or assets is otherwise subject, and no event has occurred
and is continuing which with the passage of time or the
giving of notice, or both, would constitute a default or
event of default under any such instrument; and the execu-
tion and delivery of the Bond, the Purchase and Sale Agree-
ment and the Covenant and Easement Agreement, this Purchase
Contract and the enactment of the Ordinance, and compliance
with the provisions on the City's and the Department's part
contained therein, will not conflict with or constitute a
breach of or default under any constitutional provision,
law, administrative regulation, judgment, decree, loan
agreement, indenture, bond, note, resolution, agreement or
other instrument to which the City or the Department is a
party or to which the City or the Department or any of their
properties or assets are otherwise subject, nor will any
such execution, delivery, adoption or compliance result in
the creation or imposition of any lien, charge or other
security interest or encumbrance of any nature whatsoever
upon any of their properties or assets of the City or the
Department or under the terms of any such law, regulations
or instrument, except as expressly provided by the Bonds,
the Ordinance, the Purchase and Sale Agreement and the Cove-
nant and Easement Agreement; (iii) the City has the right
and power under the Act to enact the Ordinance and the Ordi-
nance has been duly and lawfully enacted by the City, is in
full force and effect and constitutes the legal, valid and
binding obligation of the City, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights and subject, as
to enforceability, to general principles of equity (regard-
less of whether enforcement is sought in a proceeding in
equity or at law), and no other authorization is required;
(iv) the Bond is a valid and binding obligation of the City,
enforceable in accordance with its terms and the terms of
the Ordinance, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights and subject, as
to enforceability, to general principles of equity (regard-
less of whether enforcement is sought in a proceeding in
equity or at law) and is entitled to the benefits of the
Ordinance and the Act; (v) to the best of her knowledge,
there is no action, suit, proceeding, inquiry or investiga-
tion at law or in equity before or by any court, government
agency, public board or body, pending or threatened against
or affecting the City, nor, is there any basis for any such
action, suit, proceeding, inquiry or investigation, wherein
an unfavorable decision, ruling or finding would have a
materially adverse effect upon the validity of the Bond, the
Ordinance, the Purchase and Sale Agreement and the Covenant
and Easement Agreement or this Purchase Contract; and (vi)
- 6 -
•
all authorizations, consents, approvals and reviews of gov-
ernmental bodies or regulatory authorities then required for
the City's enactment,, execution or performance of the Bond,
the Ordinance, the Purchase and Sale Agreement and the Cove-
nant and Easement Agreement and this Purchase Contract have
been obtained or effected and, to the best of her knowledge,
she has no reason to believe that the City will be unable to
obtain or effect any such additional authorization, consent,
approval or review that may be required in the future for
performance of any of them by the City;
(4) A certificate, dated the date of Closing, sigited.�' '
by the Mayor of the City, the Chairman of the Off -Street
Parking Board and the Director of the Department and
approved and signed by the City Attorney as to (iii) below
or other appropriate officials satisfactory to the
Purchasers, to the effect that, to the best of their know-
ledge: (i) the representations of the City and the Depart-
ment herein are true and correct in all material respects as
of the date of Closing; (ii) the City and the Department
have performed all obligations to be performed hereunder as
of the date of Closing; (iii) no litigation is pending or
threatened (A) to restrain or enjoin the issuance or deliv-
ery of the Bond, (B) in any way contesting or affecting any
authority for the issuance of the Bond or the validity of
the Bond, the Ordinance, the Purchase and Sale Agreement and
the Covenant and Easement Agreement or this Purchase Con-
tract, (C) in any way contesting the corporate existence or
powers of the City, or (D) to restrain or enjoin the collec-
tion of the Revenues, which may result in any material
adverse change in the business, properties, assets or the
financial condition of the Parking System; and (iv) since
September 30, 1986 no material and adverse change has
occurred in the financial position or results of operations
of the Parking System; (v) the Parking System has not, since
September 30, 1986, incurred any material liabilities other
than in the ordinary course of business; and (vi) since
September 30, 1986 no material and adverse change has
occurred in the rate of collection of the Revenues;
(5) The Letter of Credit (as defined in and
described in the Purchase and Sale Agreement; and
(6) Such additional legal opinions, certificates,
instruments and other documents as the Purchasers may rea-
sonably request to evidence the truth and accuracy, as of
the date hereof and as of the date of the Closing, of the
City's representations and warranties contained herein and
of the due performance or satisfaction by the City on or
prior to the date of the Closing of all the agreements then
to be performed and conditions then to be satisfied by it.
- 7 -
If the City shall be unable to satisfy the conditions
to the obligations of the Underwriters to purchase, to accept
delivery of and to pay for the Bonds contained in this Purchase
Contract, or if the obligations of the Underwriters to purchase,
to accept delivery of and to pay for the Bonds shall be termi-
nated for any reason permitted by this Purchase Contract, this
Purchase Contract shall terminate and neither the Underwriters
nor the City shall be under any further obligation hereunder,
except that the respective obligations of the City, the Depart-
ment and the Purchasers set forth in Section 8 hereof shall con-
tinue in full force and effect.
All the opinions, letters, certificates, instruments
and other documents mentioned above or elsewhere in this Purchase
Contract shall be deemed to be in compliance with the provisions
hereof if, but only if, they are in form and substance satisfac-
tory to the Purchasers.
6. Expenses. The Purchasers shall be under no obligation
to pay, and the Department shall pay, any expense incident to the
performance of the Department's obligations hereunder including,
but not limited to: (i) the fees and disbursements of Bryant,
Miller and Olive, P.A., and Sparber, Shevin, Shapo, Heilbronner &
Book, P.A., Bond Counsel, Lucia A. Dougherty, Esq., City Attorney
and any counsel to the Department; and (ii) the fees and dis-
bursements of any accountants, and other experts, consultants or
advisors retained by the City.
7. . Notices. Any notice or other communication to be
given to the City under this Purchase Contract may be given by
delivering the same in writing to the Department of Off -Street
Parking, 190 N.E. 3rd Street, Miami, Florida 33132, Attention:
Executive Director and any notice or other communication to be
given to the Purchasers under this Purchase Contract may be given
by delivering the same in writing to William R. Watts,
Florida and Northern Trust
Bank, , Florida.
8. Parties In Interest. This Purchase Contract is made
solely for the benefit of the City and the Purchasers (including
the successors or assigns of any Purchasers) and no other person
shall acquire or have ay right hereunder or by virtue hereof.
All of the City's representations, warranties and agreements con-
tained in this Purchase Contract shall remain operative and in
full force and effect, regardless of: (i) any investigations made
by or on behalf of any of the Purchasers and (ii) delivery of and
payment for the Bond pursuant to this Purchase Contract.
- 8 -
9. Effectiveness. This Purchase Contract shall become
effective upon the execution by the appropriate City officials of
the acceptance hereof by the City and shall be valid and enforce-
able at the time of such acceptance. To the extent of any con-
flict between the provisions of this Purchase Contract and any
prior contract between the parties hereto, the provisions of this
Purchase Contract shall govern.
10. Headings. The headings of the sections of this Pur-
chase Contract are inserted for convenience only and shall not be
deemed to be a part hereof.
WILLIAM R. WATTS
NORTHERN TRUST BANK
By•
CITY OF MIAMI, FLORIDA
By•
Mayor
Attest:
City Clerk
Approved as to form and correctness:
City Attorney
PURCHASE AND SALE AGREEKENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and
entered into as of the day of , 1986, by and
between WILLIAM R. WATTS and NORTHERN TRUST BANK, Trustee (hereinafter
referred to collectively as "Seller"), and THE DEPARTMENT OF OFF-STREET
PARKING OF THE CITY OF MIAMI ("Purchaser").
WITNIIIEiH:
WHEREAS, Seller is the owner of a certain parcel of real property
located at 56 S.W. 1st Street as more fully described in Exhibit "A" attached
hereto and made a part hereof, consisting of approximately 14,481 square feet
of land on which is constructed a surface parking lot (the "Property");
WHEREAS, Purchaser owns and operates a public parking garage
designated as Municipal Garage No. 2 ("Garage No. 211) containing 490 parking
spaces located on the real property located adjacent to the Property more
fully described in Exhibit "B" attached hereto and made a part hereof (the
"Garage No. 2 Property");
WHEREAS, Purchaser desires to purchase and Seller desires to sell the
Property for the purpose of operating a surface parking lot until such time as
an expansion of Garage No. 2 is constructed thereon (the "Expansion Garage" as
more particularly defined in Section 7 hereof); and
WHEREAS, Purchaser has agreed that Seller shall be entitled subject
to limitations described herein, to retain and reserve title to the air rights
immediately above the Expansion Garage (the "Air Rights". as more particularly
defined in Section 10 hereof), to be granted certain air rights immediately
above Garage No. 2 ("Cantilever Rights", as more particularly defined in
Section 15 hereof), and to be granted certain rights to retail space to be
located on the first floor of the Expansion Garage (the "Retail Space", as
more particularly defined in Section 11 hereof) and other rights as more
specifically set forth herein.
WHEREAS, Seller has advised Purchaser that it would not be willing to
sell the Property to Purchaser except.pursuant to the collective terms and
conditions of sale hereinafter set forth.
NOW. THEREFORE, in consideration of the sum of Ten ($10.00) Dollars
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each of the parties hereto, as well as in'
consideration of the mutual covenants contained herein, the parties agrees as
follows:
1. Purchase and Sale. Purchaser will purchase from Seller and
Seller will sell to Purchaser the Property on the terms and conditions herein
set forth. The term "Property" shall include the following: The land
described in Exhibit A hereto together with all rights, privileges, servitudes
and appurtances thereunto belonging or appertaining, including, all rights,
title and interests of Seller in and to the streets, alleys and rights -of -way
adjacent thereto; all improvements and fixtures located on the real estate;
the equipment and personal-pirope-re Focatid on= the real estate; less and
except the Air Rights, Retail Space and other certain rights and interests
specifically reserved by Seller under the terms hereof (such other rights and
interests being herein collectively referred to as the "Other Retained
Interests").
2. Purchase Price. The purchase price to be paid by Purchaser to
Seller for the Property ("Purchase Price") is Two Million Dollars
($2,000,000.00) which shall be subject to adjustments and prorations as set
forth herein. Said Purchase Price shall be paid by Purchaser delivering to
Seller, at closing, a bond (the "Bond"), in fully registered form, in the
amount of the Purchase Price, issued by the City of Miami, a municipal
corporation of the State of Florida (the "City") on behalf of the Purchaser,
which Bond shall be payable from certain monies in the General Reserve Account
in the manner provided for the payment of Subordinated Debt, as such terms are
defined in Ordinance No. 10115 (the "Ordinance") of the Commission of the
City, as amended .or supplemented from time to time. The Bond shall bear
interest, at the rate of six percent (6%) per annum during the first five (5)
years of the term thereof, and, thereafter, at a floating rate (the "Floating
Rate") equal to 80% of the Prime Rate until the maturity date of the Bond. As
used herein, the term "Prime Rate" shalt mean the prime rate announced from
time to time by Chase Manhattan Bank, N.A., at its New York, New York office.
The Floating Rate shall change monthly and shall be based upon the Prime Rate
in effect on the first day of each month. In addition, during any "Contest
Period" (as hereinafter defined) said Bond shall bear interest at the Prime
Rate. All interest on the Bond shall be calculated and payable semi-annually.
The entire principal amount of the Bond shall be due and payable on the
maturity date of the Bond which shall be twenty (20) years after the date of
- 2 -
closing hereunder. The Bond shall provide that on any business day at any
time after the first seven (7) years following the date of closing, and upon
one hundred.eighty (180) days prior written notice to the other party, either
party may require the repayment in full of the Bond including payment of all
accrued and unpaid interest to the business day so repaid (the "Required
Prepayment"). The Bond shall be secured by a valid and perfected pledge of
those certain monies in the General Reserve Account set forth in the
Ordinance) subordinate only to Bonds as such term is defined in the Ordinance
("Purchaser's Bonds") issued pursuant to the Ordinance and any replacement or
refinancing of Purchaser's Bonds and to any lien or encumbrances permitted
under the Ordinance to rank prior to or on a parity with Purchaser's Bonds
provided that none of the foregoing deprives Seller, Seller's heirs,
successors, tenants or assigns of any of the rights granted hereunder. The
Bond shall be additionally secured by an unconditional and irrevocable standby
letter of credit (the "Letter of Credit"), which Letter of Credit shall be
delivered to Seller at closing. The Letter of Credit shall be M in the
principal amount of the Bond, plus an amount equal to three hundred thirty
(330) days interest on the Bond (at six percent (6%) during the first five (5)
years of the term of the Bond, and except as hereinafter set forth with
respect to a Determination of Taxability (hereinafter defined), at an interest
rate equal to the Prime Rate (the "Assumed Interest Rate") for every year
thereafter, (ii) issued for an initial term ending one year from the date of
closing, and (iii) in form and content and issued by a commercial bank
reasonably acceptable to Seller. No later than sixty (60) days prior to the
expiration date _of the initial term of the Letter of Credit, and annually
thereafter, the Letter of Credit shall be renewed or replaced at Purchaser's
sole cost and expense, for additional successive periods of one (1) year,
until the earlier to occur of (a) the maturity of the Bond; or (b) the date
the Required Prepayment is made; or (c) the date the Letter of Credit is
presented for payment and paid. Except as hereinafter set forth, each renewal
or replacement Letter of Credit shall reflect the amount of the three hundred
thirty (330) days interest included in the face amount of the Letter of Credit
at six percent (6%) or at the Assumed Interest Rate, as the case may be. For
purposes of calculating the Assumed Interest Rate prior to each renewal of the
Letter of Credit, the Prime Rate in existence on the first day of the month
which is two (2) months prior to each such renewal or replacement of the.
- 3 -
Lester of Credit shall be used. The Letter of Credit may be called upon by
Setter delivering to the issuer of the Letter of Credit a certificate, the
farm of which shall be attached to the Letter of Credit, from the Seller
stating that (i) there has been a non-payment of any payment due under the
Sond, including, without limitation, Purchaser's failure to make the Required
Prepayment at such time or times as may be required or provided under the Bond
or this Agreement; or 01) Purchaser has failed to renew or replace the Letter
of Credit within the time period set forth in this Agreement, or (iii) there
has been an uncured default under the Bond or the Bond Agreement (as
hereinafter define!) try 'Purchaser; or (iv) 180 days have elapsed since
Seller's receipt of a Determination of Taxability, which Determination of
Taxability was not caused by Seller. Such statement shall certify the amount
due Seller which sum shall be (a) the outstanding principal amount of the
Bond, and (b) the amount of all accrued and unpaid interest on the Bond as of
the date of drawing. In no event may Seller draw more than the sum of (a) and
(b) under the Letter of Credit.
As used herein, the term " Determination of Taxability" shall mean
any determination, ruling or decision (including a statutory notice of
deficiency or such other notice of similar import as may be utilized from time
to time by the Internal Revenue Service) made by the Commissioner or any
District Director of the Internal Revenue Service, or by any court of
competeAt jurisdiction, to the effect that interest payable on the Bond shall
be included in Seller's federal gross income, which Purchaser shall not have
elected to contest within sixty (60) days of its receipt of notice of same or
which Purchaser shall have unsuccessfully contested. If Purchaser shall
timely elect to contest a notice of Determination of Taxability, such
Determination of Taxability shall not be deemed to have occurred until the
appropriate legal proceedings have been concluded denying Purchaser's contest
with all appeal periods having expired provided that Purchaser shall have
contested same by appropriate legal proceedings promptly initiated and
conducted in good faith with due diligence. Seller shall within five (5) days
of receipt notify Purchaser of any notice of a Determination of Taxability
that it may receive, which notice shall be in writing and shall include a copy '
of the notice of Determination of Taxability received by Seller.
If Purchaser shall elect not to contest a Determination of
Taxability, the Bond shall, at the option of Seller, be payable on the one
-q-
hundred eightieth day (180th) day next succeeding the date that Purchaser
f
isWl have received notice of same. If Purchaser elects to contest the
validity of such determination, ruling or decision, Purchaser shall during the
time Purchaser diligently and expeditiously proceed to contest the validity of
such determination, ruling or decision, continue to renew or replace the
Letter of Credit and shall pay interest on the Bond from the date of the
notice of Determination of Taxability until the final disposition of said
contest with all appeal periods having expired (the "Contest Period") at an
interest rate equal to the Prime Rate. Seller shall at no time be entitled to
interest on the Bond calculated at a rate greater than the Prime Rate. If
Purchaser is ultimately successful in contesting the validity of the
Determination of Taxability, the Seller shall, within one hundred eighty (180)
days of the successful determination, reimburse to Purchaser a sum (the
"Reimbursement Amount") which shall be equal to the difference between
interest on the Bond calculated at the Prime Rate and such interest calculated
at the Floating Rate or at the rate of six percent (6%) per annum, whichever
was applicable, for the period of time during which Seller was paid interest
at a higher rate than that set forth in the Bond. If Purchaser is ultimately
unsuccessful, the Seller shall, prior to the seventh (7th) anniversary date of
the Bond and assuming no other default under the Bond be entitled to redeem
the Bond no earlier than one hundred eighty (180) days from the date that the
Determination of Taxability shall have become final and all appeal periods
shall have expired (and the Letter of Credit shall, if applicable, be renewed
or replaced during said one hundred eighty (180) day period). Nothing set
forth herein shall prevent Seller from redeeming the Bond for any other reason
otherwise permitted under the Bond during said one hundred eighty (180) day
period (including, but not limited to a redemption of the Bond due to a
default or the Required Prepayment). As a condition precedent to Purchaser's
right to contest any Determination of Taxability that may arise, Purchaser
must cause the Letter of Credit and all renewals or replacements thereof in
effect during the Contest Period to be increased to an amount equal to the sum
of M the principal balance of the Bond, plus 01) interest on the principal
balance calculated at the rate of the Prime Rate plus two percent (2%) for a
three hundred thirty (330) day period. The sole purpose of the above set
forth increase in the amount of interest to be secured by the Letter of Credit
— 5 —
is to secure Seller against increases in the Prime Rate during the Contest
Period. If Seller shall have the right to draw against the Letter of Credit
after an unsuccessful contest of a Determination of Taxability by Purchaser,
Seller shall not be permitted to draw more than the aggregate of the then
unpaid principal balance of the Bond plus all accrued and unpaid interest
calculated at the Prime Rate notwithstanding the face that the fact amount of
the Letter of Credit may be greater than the amount actually owed Seller
pursuant to the Bond. If the Bond becomes due during the pendency of the
Contest Period and all principal and accrued interest are paid to Seller
(includi-ng the Prime Rate due during the Contest Period) and the Purchaser's
contest of the Determination of Taxability is successful, Seller shall within
one hundred eighty (180) days of said successful determination, pay to
Purchaser the Reimbursement Amount.
Seller agrees to notify Purchaser of any default under the Bond or
the Bond Agreement or of any other event which would permit Seller to draw
under the Letter of Credit at least five (5) days prior to the time Seller
notifies the issuer of the Letter of Credit of same, provided, however, the
Letter of Credit shall not make any reference to said notice to Purchaser and
shall not be conditioned upon Seller giving such notice to Purchaser. The
form and content of the Bond, the documentation delivered in connection there-
with, and the procedures for the same shall be governed by a separate Bond
Purchase Contract an outline form of which is attached hereto as Exhibit "G"
(the "Bond Agreement"). The Bond Agreement shall provide, among its provi-
sions, that Purchaser shall deliver to Seller in form reasonably acceptable to
Seller, at closing a certification (the "Opinion of Counsel") from a nationally
recognized bond counsel that (1) the Bond is validly authorized, executed and
delivered, and is enforceable in accordance with its terms; and (2) all
interest payable under the Bond is excludible from federal gross income except
with respect to the Alternative Minimum Tax and the Environmental Tax. The
precise terms of the Bond, the Bond Agreement and the bond ordinance approving
the issuance of the Bond must be reasonably satisfactory to Seller and
Seller's counsel as a condition precedent to Seller's obligations hereunder.
Additionally, the Letter of Credit shall not be transferable except together
with the Bond it secures.
3. Evidence of Title. The Seller shall as soon as possible, but. no
later than fifteen (15) days from the date of this Agreement, deliver to the
-6-
o e i
t t
attorneys for the Purchaser a complete abstract of title, certified from the
earliest public records through a date not earlier than the date of this
Agreement, showing Seller's title to the Property to be good, marketable and
insurable. Purchaser's attorney shall have five (5) days from the date of
receiving the abstract to examine the same. If the examination of said
abstract reflects title to be in a condition other than that represented
herein, Purchaser's attorney shall, within said five (5) day review period,
notify Seller of such title defects. Failure by Purchaser to notify Seller of
a particular title defect within said five (5) day period shall be deemed a
waiver of said defect. As to any title defect properly raised by Purchaser in
a timely manner, Seller shall use its best efforts to cure such defect no
later than the Closing Date (as hereinafter defined), however, Seller shall
not be required to initiate litigation or expend sums in excess of $10,000.00
to accomplish the same. In the event that Seller does not eliminate all such
defects as of the date provided hereunder after using its best efforts to do
so, Purchaser shall have the option of either M closing and accepting the
title as is, without diminution of the Purchase Price or any other
compensation therefor due from Seller, or (ii) cancelling this Agreement
whereupon all parties shall be released from all further obligations under
this Agreement. If option M above is elected and title is not cleared by
Seller by the extended title clearance date, Purchaser shall then elect either
option (ii) or (iii) above.
Seller shall provide at closing to Purchaser any as -built drawings,
soil borings and engineering reports, topography maps, final plans and
specifications and other similar matters relating to the physical aspects of
the Property in the possession of Seller or Seller's representatives, if any.
Purchaser may within fifteen (15) days from the date hereof obtain a
current survey of Property. If said survey reflects adverse matters which
would prevent or infringe upon Purchaser's contemplated use of the Property,
and if Purchaser notifies Seller of said defects within twenty (20) days after
the date hereof, said defects shall be treated as title defects hereunder with
the same periods of time to cure the same as is provided for title defects.
The Purchaser shall as soon as possible, but no later than fifteen
(15) days from the date of this Agreement, deliver to the attorneys for the
Seller a complete abstract of title of the Garage No. 2 Property, certified
f
from the earliest public records through a date not earlier than the date of
this Agreement, showing Purchaser's title to the Garage No. 2 Property to be
good, marketable and insurable. Seller's attorney shall have five (5) days
from the date of receiving the abstract to examine the same. If the
examination of said abstract reflects title to be in a condition other than
that represented herein, Seller's attorney shall, within said five (5) day
review period, notify Purchaser of such title defects. Failure by Seller to
notify Purchaser of a particular title defect within said five (5) day period
shall be deemed a waiver of said defect. As to any title defect properly
raised by Seller in a timely manner, Purchaser shall use its best efforts to
cure such defect no later than the Closing Date; however, Purchaser shall not
be required to initiate litigation or expend sums in excess of $10,000.00 to
accomplish the same. In the event that Purchaser does not eliminate all such
defects as of the date provided hereunder after using its best efforts to do
so, Seller shall have the option of either M closing and accepting the title
as is, or (ii) cancelling this Agreement whereupon all parties shall be
released from all further obligations under this Agreement. If option M
above is elected and title is not cleared by Purchaser by the extended title
clearance date. Seller shall then elect either option (ii) or (iii) above.
Purchaser shall at all times after closing make available to Seller
any as -built drawings, soil borings, and engineering reports, topography maps,
final plans and specifications and other similar matters relating to the
physical aspects of the Garage No. 2 Property in the possession of Purchaser
or Purchaser's representatives, if any (the "Garage No. 2 Documents"). If
Purchaser shall default under its obligation to construct the Expansion Garage
as hereinafter set forth. Purchaser shall deliver all of the Garage No. 2
Documents to Seller.
Seller may within fifteen (15) days from the date hereof obtain a
current survey of the Garage No. 2 Property. If said survey reflects adverse
matters which would prevent or infringe upon Seller's contemplated use of the
Garage No. 2 Property, and if Seller notifies Purchaser of said defects within
twenty (20) days after the date hereof, said defects shall be treated as title
defects hereunder with the same periods of time to cure the same*as is
provided for title defects.
4. Seller's Reorgsentati4ns. Seller represents and warrants. to
Purchaser, to the best of Seller's knowledge, the following:
- 8 -
(a) That attached hereto as Exhibit "D" are true and correct
copies of all leases, or other tenancies or occupancy agreements together
with any and all modifications thereof and amendments thereto affecting
the Property. With respect to such leases, neither Seller nor the tenant
is in default in the performance of any terms or conditions set forth in
any leases.
(b) That attached hereto as Exhibit "E" are true, correct and
complete copies of all other agreements or contracts affecting the
Property.
(c) That Seller has full right, power and authority to enter
into this Agreement, free and clear of any and all lawsuits or other
claims against the Property, and that neither Seller nor the Property are
subject to any contracts or other agreements which would prevent Seller
from carrying out the terms of this Agreement, except as otherwise
specifically referred to herein including, without limitation, any
limitations contained in the leases and other agreements contained in
Exhibits "D" and "E" attached hereto.
Property.
(d)That Seller is the holder of good and marketable title to the
(e) That the Property is in full compliance with all zoning,
building, traffic, environmental, energy
efficiency
and other
rules,
regulations, ordinances and all statutes of
all local,
state and
federal
authorities having jurisdiction• over the Property; Seller has not received
any notice from any such governmental authority of any violation of any
aforesaid ordinances, statutes, rules, orders, regulations or requirements
with respect to the Property nor is Seller in violation of - any such
ordinance, statute, rule, order, regulation or requirement.
(f) From the date of this Agreement until the earlier of the
Closing Date or the date of termination hereof, neither Seller nor its
agents or representatives will make any new lease or modify or extend any
lease without the prior written consent of Purchaser.
(g) That there are no claims pending against any tenant or its
insurer for any damage caused to any part of the Property.
(h) That none of the fixtures, equipment or personal property
is leased or encumbered by any security interest or title retention
- 9 -
0 0
interest or agreement and all such fixtures, equipment or personal
property, if any, are owned by Seller.
M That there are no condemnation proceedings or eminent
domain proceedings of any kind filed or contemplated against the Property
or any part thereof.
(j) That there is no litigation or claims filed or contemplated
which involves or affects the Property and no governmental authority has
given Seller a notice of increased taxes or assessments relating to the
Property.
(k) That there are no pending or certified liens affecting the
Property.
The Seller represents and warrants to the best of Seller's knowledge
that the representations and warranties of Seller in this Agreement, and the
information contained in the Exhibits hereto, are true, accurate and complete
and do not contain any untrue statements of material fact or omit material
facts which would render any representation, warranty or Exhibit misleading.
S. Representations of Purchaser. Purchaser represents and warrants
to Seller, to the best of Purchaser's knowledge, the following:
(a) That Purchaser is the holder of good and marketable title
to the Garage No. 2 Property, subject to no liens, encumbrances or -other
rights of third parties other than the rights of holders and Trustees of
the Bonds (as defined in the Ordinance).
(b) That the Garage No. 2 Property is in full compliance with
all zoning, building, traffic, environmental, energy efficiency and other
rules, regulations, ordinances and all statutes of all local, state and
federal authorities having jurisdiction over the Garage No. 2 Property;
Purchaser has not received any notice from any such governmental authority
of any violation of any aforesaid ordinances, statutes, rules, orders,
regulations or requirements with respect to the Garage No. 2 Property nor
is Purchaser in violation of any such ordinance, statute, rule, order,
regulation or requirement.
(c) That there are no condemnation proceedings or eminent
domain proceedings of any kind filed or contemplated against the Garage
No. 2 Property or any part thereof.
(d) That there is no litigation or claims filed or contemplated
which involves or effects the Garage No. 2 Property and no governmental
• a 0
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op
authority has given Purchaser a notice of increased taxes or assessments
relating to the Garage No. 2 Property.
(e) That there are no pending or certified liens affecting the
Garage No. 2 Property.
(f) That Purchaser will seek expeditiously all requisite
approval and authority to enter into this Agreement and carry out the
terms hereof in accordance with the terms hereof on or before the Closing
Date.
(g) That Purchaser has full right, power and authority to enter
into this Agreement free and clear of any and all lawsuits or other claims
against the Garage No. 2 Property and that neither Purchaser nor the Garage
No. 2 Property are subject to any contracts or other agreements which
would prevent Purchaser from carrying out the terms of this Agreement.
6.(a) Purchaser's Obligation to Construct Expansion Garage. Purchaser
hereby agrees to construct the Expansion Garage (as defined in Section 7
hereof) on the Property and on that portion of the Garage No. 2 Property, if
any, lying between the Garage No. 2 and the Property (the "Vacant Garage No. 2
Property") in accordance with the terms of this Agreement. Purchaser shall
commence construction of the Expansion Garage on a date (the "Commencement
Date") which shall be the earlier to occur of (a) three (3) years after the
date of closing hereunder; or (b) six (6) months after Seller notifies
Purchaser that Seller has entered into leases ("Lease -Up") with tenants for
50% of the net rentable square footage of the Air Rights Building, as defined
in Section 12 hereof. Notwithstanding the foregoing, the Commencement Date
may be delayed upon the mutual written consent of the parties to do so.
Purchaser shall substantially complete construction of the Expansion Garage
and pay for the same in full (subject to any retainage deemed necessary by
Purchaser so long as the same is acceptable to Seller's title insurer so that
no exception is made in Seller's title policy for possible mechanic's liens)
by a date (the "Completion Date") which shall be eighteen (18) months after
the earlier of M the Commencement Date or 01) the date construction of the
Expansion Garage actually commences, unless the parties mutually agree in
writing to extend such date. The Completion Date shall be extended for a
period of time equal to the number of days during which Purchaser is
prevented, after using its best efforts, from proceeding with the construction
of the Expansion Garage by reason of force majeure. The term "force majeure"
as used herein shall include strikes, lockouts or other labor trouble, acts of
God, fire or other casualty, governmental preemption in connection with a
national emergency, any rule, order or regulation of any governmental agency
or any department or subdivision thereof (other than the Purchaser, the City
of Miami or any agency or board of the City of Miami) , or inability to secure
materials or labor because of any such emergency, rule, order,. regulation,
war, civil disturbance or other emergency, cause or event beyond the
reasonable control of Purchaser.
Purchaser shall keep Seller fully apprised of the progress of
Purchaser in constructing the Expansion Garage. Once construction of the
Expansion Garage is commenced, Purchaser agrees to diligently pursue its
completion and any discontinuance of work thereon for more than forty-five
(45) days (an "Abandonment") shall entitle Seller to elect to complete the
same, provided, however, that if either (i) as a result of force majeure
construction ceases such a discontinuance of work shall not be deemed an
Abandonment or (ii) If Purchaser shall have a conflict with its General
Contractor and as a result of such conflict constructon ceases such a
discontinuance of work shall not be deemed an Abandonment. Purchaser agrees
that the construction contract that Purchaser shall enter into with its
General Contractor shall (a) require that such contractor deliver a 100%
payment and performance bond to Purchaser which shall name both Purchaser and
Seller as dual obligees, and (b) contain a provision authorizing Seller to sue
such General Contractor for damages it may sustain as a result of the
contractor's failure to timely complete the Expansion Garage.
If Purchaser fails to commence and/or complete the Expansion Garage
when required hereunder, or discontinues construction through an Abandonment,
it shall not be deemed to be a default under this Agreement but Seller or its
assigns shall have the right to build or complete the Expansion Garage on the
Property and the Vacant Garage No. 2 Property in accordance with the Plans, as
defined in Section 7 hereof. If Seller elects to so commence or complete the
Expansion Garage, Seller shall provide Purchaser with thirty (30) days written
notice of Seller's intention -to build or complete. If said notice pertains to
a commencement of the Expansion Garage, Purchaser shall have the opportunity
to commence said construction upon receipt .of said notice. If Purchaser fails
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to commence construction within said thirty (30) day period, Seller may upon
the expiration of the thirty (30) day period commence construction. Provided,
however, that if Purchaser commences construction after the aforedescribed
notice and then causes an Abandonment, Seller shall be entitled to complete
construction without availing Purchaser the opportunity to recommence
construction a second time. If Seller's notice pertains to commencement or
completion of construction (either due to Abandonment or failure to complete
when required herein), Purchaser shall deliver to Seller within said thirty
(30) day period all plans, permits, contracts and other items in Purchaser's
possession pertaining to said construction, including an assignment of the
construction contract, to the extent Seller requests the same, and otherwise
fully cooperate with Seller's completion of the Expansion Garage.
If Seller shall construct and/or complete the Expansion Garage
pursuant to the terms hereof, Seller shall keep Purchaser fully apprised of
the progress of Seller with respect to such construction. During such period
the work of Seller shall be available for inspection at all times by the
Executive Director of Purchaser or his designee. Seller shall maintain
builder's risk insurance to cover any damage to the Expansion Garage, the
Vacant Garage No. 2 Property or Garage No. 2 as a result of construction by
Seller in an amount reasonably acceptable to Purchaser and naming Purchaser as
an additional insured thereunder. Seller further agrees to indemnify
Purchaser and hold Purchaser harmless from and against any and all claims,
causes of action of every kind and character and including without limitation,
the amount of all judgment, penalties, interest, fines, costs and legal
expenses including attorney fees and court costs incurred by Purchaser arising
in favor of any person or entity on account of claims, personal injuries,
death or damage to property whether real or personalty, occurring in any way
incident to, in connection with or arising out of Seller's construction or
completion of the Expansion Garage.
Also, if Seller shall complete the Expansion Garage after construction
has commenced by Purchaser, pursuant to the terms hereof, Seller shall submit
in writing to Purchaser monthly reports reflecting the construction costs
incurred by Seller in connection with the construction or completion of the
Expansion Garage (the "Seller's Construction Costs"). Seller shall upon
completion of the Expansion Garage submit to Purchaser a final report
reflecting all of Seller's Construction Costs. Purchaser shall have the right
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to review the monthly reports and final report of Seller at any time upon
reasonable notice. Any disputes as to Seller's Construction Costs shall be
settled by Purchaser and Seller choosing a mutually acceptable public account
ing firm to perform an audit to certify the accuracy of such report. If the
parties cannot agree on which accounting firm shall perform the audit, each of
Purchaser and Seller shall choose an accounting firm, and the two firms thus
chosen shall choose a firm to perform the audit. If Seller's report differs
by less than five percent (5%) from the chosen auditor's report, then Purchaser
shall bear the entire amount of tho costs incurred in connection with such
audit. If Seller's report differs by at least five percent (5%) but not more
than fifteen percent (15%) from the chosen auditor's report, then Purchaser
and Seller shall share equally all of the costs associated with the audit and
if Seller's report differs by greater than fifteen percent (15%) from the
chosen auditor's report, then Seller shall bear the entire amount of such
costs. Seller's Construction Costs shall include the aggregate of (i) the
actual interest paid by Seller in connection with its financing, plus (ii) a
return on equity actually paid by Seller equal to one hundred and twenty (120%)
percent of the Prime Rate. In no event may the aggregate of M and (ii)
exceed the lesser of (a) one hundred and twenty (120%) percent of the Prime
Rate or (b) the maximum amount -of interest permissible by law.
Seller agrees that if Seller shall construct, complete or repair the
Expansion Garage, Seller shall be bound by all applicable City, Dade County or
State minority, procurement or conflict of interest laws.
If Seller shall construct or complete construction of the Expansion
Garage, all Net Operating Income as hereinafter defined shall be paid to
Seller until such time as Seller shall have been repaid its entire Seller's
Construction Cost.
For the purpose of the preceding paragraph and for the sole purpose
of computing the amounts to be paid to Purchaser and Seller if Seller shall
construct or complete the Expansion Garage, the following definitions shall
apply:
A. "Gross Revenues" shall mean all moneys, paid or payable to
Purchaser on the accrual basis for parking related transactions made and for
services rendered by the Purchaser in the operation of Garage No. 2 and the
Expansion Garage regardless of when or where the services are rendered,
provided, however,. that any taxes imposed by law paid to Purchaser and
— 14 —
thereafter directly paid by the Purchaser to a taxing authority, and any
discounts and allowances as provided by procedures proposed by the Purchaser,
shall be excluded therefrom. Moneys payable shall include, but shall not be
limited to, any and all cashier shortages, overages, and undercharges.
Dishonored checks and uncollectible credit card charges shall not be included
in Gross Revenues, provided that such check and credit-card transactions were
processed utilizing sound business procedures.
! The external auditing firms of the Purchaser and Seller shall be
i
permitted to audit, examine, review and copy all records relating to
operations under this Agreement, during normal working hours at the
administrative offices of the Purchaser, 190 N.E. Third Street, Miami,
Florida, or at such place in Miami, Florida as the Purchaser may designate
pursuant to the terms hereof.
The Purchaser shall maintain, during the term of this Agreement, all
books of account and records of Gross Revenues and expenditures, in conformance
with generally accepted accounting principles, consistently applied.
All souri.e records of Gross Revenues, which shall include, but not be
limited to: parking tickets, cash register tapes, shift reports, master
reports, daily revenue reports, and the like, shall be kept at all times within
Dade County. These records shall be maintained by the Purchaser for a period
of at least two (2) years following the close of the fiscal year during which
same were processed.
If requested by Seller, the Purchaser shall make available at the
Purchaser's Administrative offices, upon five (5) days written notice from
Seller, any original documents and records pertaining to the operation of
Garage No. 2 and the Expansion Garage not required specifically by the terms
of this Agreement.
B. "Net Operating Income" for any time period shall mean 100% of
the amount by which Gross Revenues exceed the sum of (a) Operating Expenses
for such time period, plus (b) debt service payable by Purchaser on bonds
which shall include all principal and interest payments due on (i) any bonds
in connection with Garage No. 2, (11) the Bond, and (III) any other bonds
issued by the City on behalf of Purchaser to finance the construction of the
Expansion Garage for such time period.
C. "Net Operating loss for any time period shall mean the amount
by which Operating Expenses exceed Gross Revenues for such time period.
—15-
0. "Operating Budget" shall mean an annual budget listing all
anticipated Operating Expenses, including types, quantities and estimated
costs required during the subsequent fiscal year, anticipated Gross Revenues,
anticipated capital items, the costs of bonds and insurance, and anticipated
Net Operating Income or Net Operating Loss. The Operating Budget shall set
forth proposed parking rates for Garage No. 2 and the Expansion Garage which
rates shall be comparable to the fees and rates for the use of similar
facilities in downtown Miami and shall be subject to the review and approval
of the City Commission of the City. If Seller shall construct or complete
construction of the Expansion Garage, Seller shall have the right to review
the Operating Budget and have the right to comment upon all or portions of the
categories of expenses or individual items contained in the Operating Budget
but it is understood and agreed that the final decision as to the Operating
Budget shall be made by the Purchaser and be binding upon Seller.
E. "Operating Expenses" shall mean (without duplication): For any
period of time all reasonable and prudent expenditures for Garage No. 2 and
the Expansion Garage according to then standards of the industry accounted for
in accordance with generally accepted accounting principals made by the
Purchaser or which the Purchaser is obligated to make in the operation and
management of Garage No. 2 and the Expansion Garage, including but not limited
to: a management fee not to exceed five percent (5%) of Gross Revenues (the
"Management Fee"), commodities and equipment authorized as part of the
Operating Budget plus salary and wages, fringe benefits including social
security, group insurance, retirement costs, etc., including overtime,
vacation, sick time, accrued vacation and sick time earnings of the
Purchaser's officers and employees working at Garage No. 2 and the Expansion
Garage. plus a reasonable allocation of such items as they relate to executive
and administrative employees of the Purchaser based upon the proportion that
the number of spaces in Garage No. 2 and the Expansion Garage bear to the
aggregate number of spaces contained in all parking garages operated by
Purchaser, all utility costs including, but not limited to, electricity, water
and gas, if any, communications costs, all contractual maintenance costs
including elevators, air conditioners, garage equipment, property and
landscaped areas, security guards, parking consultant services, material and
supply costs, insurance including liability, workmen's compensation and
— 16
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i
others, repair and replacement costs, including equipment and others, a11-
computer operation costs allocable to Garage No. 2 and the Expansion Garage,
uniforms, signs, capital costs, damages, legal fees directly related to Garage
No. 2 and the Expansion Garage, auditing costs and losses of equipment from
theft, for such period of time.
6.0) Reports. If Seller shall construct or complete the Expansion
Garage, Seller shall receive monthly reports reflecting the Net Operating
Income or the Net Operating Loss from Garage No. 2 and the Expansion Garage
and Seller shall receive the Net Operating Revenue, if any, on the twentieth
(20th) day of the following month based upon the Net Operating Revenues for
the previous month. Within thirty (30) days after the end of each year Seller
shall receive annual reports of the Net Operating Income and Net Operating
Loss of Garage No. 2 and the Expansion Garage so that any annual adjustment
otherwise provided for herein can be made.
6.(c) Seller Obligation to Construct Air Rights Building. If Seller
shall not have commenced construction of the Air Rights Building within seven
(7) years after the date that the Expansion Garage shall be opened for
business, Purchaser shall have the right, on sixty (60) days prior written
notice, to purchase the Air Rights from Seller for the Purchaser's Air Rights
Purchase Price. As used herein, the term Purchaser's Air Rights Purchase
Price shall mean the then appraised value of the Air Rights as determined by
one appraiser designated by Seller, one appraiser designated by Purchaser and
a third appraiser to be designated by the two previously designated
appraisers. The average of the two (2) appraisals which are the closest
together in dollar value shall be deemed the appraised value of the Air Rights.
7. Expansion Garage. The term "Expansion Garage" as used in this
Agreement shall mean a structure to be constructed on the Property and the
Vacant Garage No. 2 Property, if any, constituting an expansion to Garage No.
2, of approximately equal height to Garage No. 2, and having a face which
abuts Garage No. 2 of approximately equal dimensions as the abutting face of
Garage No. 2, with a capacity of approximately two hundred seventy-seven (277)
parking spaces, as more particularly described on the Schematic Plans for the
the Expansion Garage attached hereto as Exhibit "F" (the "Plans"). The
Expansion Garage shall be constructed in such a manner as to support and be
- 17 -
otherwise structurally compatible with an Air Rights Building, as defined in
Section 12 hereof, approximately twelve (12) stories in height, provided,
however, that nothing contained herein, shall be construed to require that any
Air Rights Building contain at least twelve (12) stories.
B. Grant of Easement Rights to Seller. It is anticipated that upon
completion of the Expansion Garage, the existing entrance/exit of Garage No. 2
will serve as the sole entrance/exit for the combined operation of Garage No.
2 and the Expansion Garage. Accordingly, Purchaser hereby further covenants
and agrees to grant to Seller a nonexclusive, perpetual and irrevocable
easement of ingress and egress (subject to reasonable applicable rules and
regulations then pertaining to Garage No. 2 and the Expansion Garage
applicable to the general public) for pedestrian traffic (and vehicular
traffic limited to that actually required by Seller in the enforcement of any
rights granted to it hereunder) in and through the Expansion Garage, Garage
No. 2, the Garage No. 2 Property, the Property and any new or replacement
improvements constructed on the Garage No. 2 Property and the Property
(including a portion of the Expansion Garage, if applicable), which easements
shall run in favor of Seller, its successors, heirs or assigns, their tenants,
subtenants, invitees, licensees and assigns, to permit them to fully utilize
the Expansion Garage and Garage No. 2 for purposes of ingress and egress to
and from Garage No. 2, the Expansion Garage, the Retail Space, the Air Rights,
the Cantilever Rights, and the Air Rights Building. Such nonexclusive
easement shall be granted to Seller at closing free and clear of any and all
prior liens, encumbrances or other rights of third parties. Additionally, if
Purchaser fails to construct or complete the Expansion Garage as required
herein, and Seller constructs or completes the Expansion Garage in accordance
with the rights granted to it to do so in Paragraph 6 hereof, Purchaser hereby
grants to Seller, Seller's successors, heirs, assigns, tenants and their
licensees and invitees (i) the right to break through the walls of Garage No.
2 and make such other structural alterations to Garage No. 2 as may be
necessary to complete the Expansion Garage and link it to the Garage No. 2 in
accordance with the Plans; and (ii) an irrevocable, and non-exclusive easement
for pedestrian and vehicular traffic over, above, under and through the
Property, Garage No. 2, any part thereof, and the Garage No. 2 Property
(including the Vacant Garage No. 2 Property), for the limited purpose of
- 18 -
•
constructing the Expansion Garage. The foregoing rights -and agreements shall
be contained in a covenant and easement agreement to be delivered to Seller at
closing ("Covenant and Easement Agreement").
Purchaser agrees to operate Garage No. 2 and the Expansion Garage as
a combined, unified garage facility for a period to terminate no sooner than
thirty (30) years from the date of completion of the Expansion Garage said
operation to be done on the same basis as Purchaser operates other garages.
In no event will Purchaser operate the Expansion Garage and Garage No. 2 so as
to obstruct or interfere with the utilization thereof otherwise granted to
Seller, its heirs, successors, assigns, tenants, licensees and invitees.
• , M-714FUM MeT79MR-IMITOM • , . • .r%>.rr-TWrr�
The Purchaser agrees that the Expansion Garage will be constructed so as to
provide for the necessary foundation and such other structural modifications
as may be necessary to permit construction of the Air Rights Building and
Retail Space. The parties have determined, relying, in part, on independent
third party analysis, that the additional cost of construction of the
Expansion Garage attributable to the construction of the Retail Space and the
reinforced foundation for the Expansion Garage sufficient to support the Air
Rights Building will be approximately Two Hundred Thousand and No/100
($200,000.00) Dollars (the "Additional Construction Costs"). Seller hereby
agrees to place in escrow with Greenberg, Traurig, Askew, Hoffman, Lipoff,
Rosen & Quentel, P.A. (the "Escrow Agent") the Additional Construction Costs,
at such time as a fully bonded construction contract for the Expansion Garage,
under which construction is due to commence within thirty (30) days, is
executed by Purchaser. The escrowed funds shall be paid to Purchaser when a
building permit is issued for the Expansion Garage. All interest earned on
such escrowed funds shall accrue to the benefit of Seller and shall be
delivered to Seller upon the issuance of the building permit.
10. Air Rights. The term "Air Rights" as used herein shall mean,
subject to any legal limitations, the unconditional, irrevocable, unrestricted
and exclusive right to use, occupy and build within all air space over the
Property and Vacant Garage No. 2 Property from and above the level of the top
of the Expansion Garage, from a plane (the "Top Plane") touching the top
surface of the roof of the Expansion Garage, corresponding and parallel to the
size and location of the ground level of the Property and Vacant Garage No. 2
- 19 -
Property including, without limitation, the right to build the Air Rights
Building utilizing the- Expansion Garage as the foundation thereof, excluding,
however, the Top Parking Level as hereinafter defined. That portion of the
first fifteen (15) feet ("Top Parking Level") of the Air Rights above the Top
Plane, shall not except for the Support Mechanisms (as hereinafter defined),
be retained by Seller but, instead, Seller shall retain an exclusive,
irrevocable and perpetual easement (the "Support Mechanisms Easement") to use
such Top Parking Level in any manner for which the Air Rights may be used so
long as no building or other structure is constructed therein which prevents
the use of the Top Parking Level as a usable floor of the Expansion Garage
containing no less than the amount of parking spaces presently set forth on
the Plans. The bottom of any Air Rights Building built (exclusive of any
columns, supports or other structures, or conduits; ducts, or other like
items, necessary to construct, support or operate an Air Rights Building,
hereinafter referred to collectively as "Support Mechanisms") will be no lower
than the top of the Top Parking Level . The title to the Air Rights above the
Property shall be reserved in the Warranty Deed (the "Warranty Deed")
delivered to Purchaser at closing. The Air Rights, if any, above the Vacant
Garage No. 2 Property (the "Vacant Garage No. 2 Air Rights"), lying within or
about the Vacant Garage No. 2 Property shall be conveyed to Seller by warranty
deed from Purchaser at closing. Seller hereby agrees to pay to Purchaser a
sum (the "Vacant Garage No. 2 Air Rights Payment") which shall be equal to the
greater of (1) $8.28 per square foot for each square foot of the Vacant Garage
No. 2 Air Rights conveyed to the Seller or (ii) the appraised value of the
Vacant Garage No. 2 Air Rights. For purposes of determining the appraised
value of the Vacant Garage No. 2 Air Rights, Purchaser and Seller shall choose
an appraiser, and the two appraisers thus chosen shall choose a third
appraiser, and the average of the two (2) appraisals which are closest
together in dollar value shall be deemed the appraised value of the Vacant
Garage No. 2 Air Rights. The cost of such appraisals shall be borne equally
between the parties. The Vacant Garage No. 2 Air Rights Payment shall be due
and payable at such time as the first annual Air Rights Easement Payment (as
defined in Section 14) becomes due and payable.
In consideration for Purchaser granting Seller the Support Mechanism
Easement to use the Top Parking Level, Seller shall maintain builder's risk
—20—
Insurance to cover any damage to the'Expansion Garage, the Vacant Garage No. 2
Property or Garage No. 2 as a result of such use by Seller of the Support
14echanism Easement and the use of the Expansion Garage as the foundation of
the Air Rights Building excluding the Top Parking Level, in an amount
reasonably acceptable to Purchaser, and naming Purchaser as an additional
insured thereunder. Seller further agrees to indemnify Purchaser and hold
Purchaser harmless from and against any and all claims, causes of action of
every kind and character and including without limitation, the amount of all
judgments, penalties, interest, fines, costs and legal expenses including
attorney fees, court costs incurred by Purchaser arising in favor of any
person or entity on account of claims, personal injuries, death or damage to
property whether real or personalty, occurring in any way incident to, in
connection with or arising out of Seller's use of the Top Parking Level and
the Support Mechanism Easement and Seller's use of the Expansion Garage as
support for the Air Rights Building.
11. Retail Space. The term "Retail Space" as used herein shall mean
approximately four thousand (4,000) square feet of usable floor area of shell
retail space (exclusive of any common areas such as hallways, elevators and
shafts, mechanical rooms, bathrooms and lobby areas) on the ground floor of
the Expansion Garage fronting on Southwest First Street, and a non—exclusive,
irrevocable and perpetual easement to use the lobby area, utility corridors,
and elevator shafts and core in the Expansion Garage (collectively, "Easement
Areas") in conjunction with the Retail Space and in conjunction with and for
utilities and pedestrian access to the Air Rights Building. Such Retail Space
shall include an exclusive, irrevocable and perpetual easement (the "Retail
Space Easement") for the use of all land lying beneath the Retail Space
subject solely to Purchaser's or its successors or assigns rights to use the
land lying beneath the Retail Space for such purposes as will not interfere
with or diminish any rights of Seller, its tenants, invitees, successors,
licensees, heirs or assigns to the Retail Space or otherwise hereunder. All
of Seller's rights in and to the Retail Space, the Retail Space Easement and
the Easement Areas shall be more particularly set forth and defined in the
Covenant and Easement Agreement.
Seller agrees that the Retail Space shall not be used for:
— 21 —
(1) Permanent or temporary housing or sleeping quarters; or
0 i) Coinbox entertainment (pinball, video games, moving
pictures operated by coins); or
(iii) Casino gambling, games of chance or reward; or
(iv) Any unlawful or illegal business, use or purpose, or for
any business, use or purpose which is immoral or disreputable (including
without limitation "adult entertainment establishments" and "adult"
bookstores) or extra —hazardous, or in such manner as to constitute a
nuisance of any kind (public or private), or for any purpose or in any way
in violation of the certificates of occupancy (or other similar approvals
of applicable governmental authorities).
12. Air Rights Building. The term "Air Rights Building" as used
herein shall mean any building or other structure or improvements constructed
within the Air Rights and/or the Cantilever Rights.
13. Documentation for Air Rights and Retail Space. At any time
following the closing, Purchaser shall, at Seller's request, execute and
deliver to Seller any and all documentation which may be reasonably requested
by Seller and approved by Purchaser's counsel, from time to time, to evidence
Seller's reservation and retention of the Air Rights. Seller's rights in and
to the Retail Space, the Easement Areas and the Retail Space Easement and
Seller's right to construct the Air Rights Building including, without
limitation, if desired by Seller, the submission of the Expansion Garage,
Garage No. 2, the Property and the Vacant Garage No. 2 Property to a
condominium regime under the laws of the State of Florida, designating the
Retail Space and Air Rights and/or Air Rights Building (including the
Cantilever Rights) and garage facility within the Expansion Garage and Garage
No. 2 as Units and/or common elements contained within said condominium
regime. Purchaser and Seller hereby acknowledge and agree that such
documentation shall be in form and substance reasonably satisfactory to and
approved in all respects by Purchaser and Seller and shall provide that
Purchaser will not incur any costs or liability other than that contemplated
herein. or adversely affect in any respect any rights of Purchaser under this
Agreement. Said documentation shall be prepared by attorneys designated by
Seller and shall be reasonably acceptable to Purchaser and Purchaser's
counsel. All reasonable costs of such documentation and the recording thereof
shall be divided equally between the parties provided, however, that
Purchaser's share of such expenses shall not exceed Twenty Five Thousand and
No/100 Dollars ($25,000.00). The provisions of this paragraph will be set.
— 22 —
86-96 S
forth in the Covenant and Easement Agreement to be delivered to Seller by
Purchaser at closing.
14. Air Rights and Retail Space Payment. As consideration for the
granting to Seller of the rights to be contained in the Covenant and Easement
Agreement, Seller shall pay to Purchaser: (a) $10,000.00 per calendar year
(the "Retail Space Easement Payment"), which annual payment shall commence
upon the granting of a Temporary Certificate of Occupancy permitting the use
of the Retail Space (if said certificate of occupancy is issued other than on
the first day of the calendar year, the first such annual payment shall be
prorated accordingly); and (b) $40,000.00 per calendar year (the "Air Rights
Building Easement Payment"), commencing on the earlier to occur of M the
granting of a Temporary Certificate of Occupancy permitting the use of the Air
Rights Building, or (ii) twenty-four (24) months after the date of issuance of
a building permit for the Air Rights Building (if the commencement date for
the first annual payment of the Air Rights Building Easement Payment occurs
other than on the first of the calendar year, the first annual Air Rights
Building Easement Payment shall be prorated accordingly). Seller shall have
the right, at any time, to terminate the continuation of the Retail Space
Easement Payment by paying to Purchaser a lump sum of One Hundred Twenty
Thousand and No/100 Dollars ($120,000,000) and/or to terminate the continuation
of the Air Rights Building Easement Payment by paying a lump sum to Purchaser
of Four Hundred Eighty Thousand and No/100 Dollars ($480,000.00). In the
event either lump sum payment is made other than on the first day of a
calendar year, the Seller shall be credited with the proportionate unused
portion of the Retail Space Easement Payment and/or Air Rights Building
Easement Payment for that year as the case may be.
15. Cantilever and Staging, Rights. As a material part of the
consideration to be given to Seller by Purchaser hereunder, Purchaser hereby
agrees to grant to Seller at closing the Cantilever Rights and the Staging
Rights, as such terms are hereinafter defined. The term "Cantilever Rights"
as used herein shall mean the unconditional, irrevocable, exclusive and
unrestricted right to use, occupy and build within all the air space over the
Garage No. 2 Property from and above the level of Garage No. 2 from a plane
(the "Top Existing Plane") beginning fifteen (15) feet above the top surface
of the roof of Garage No. 2 which plane shall correspond to and be parallel
- 23 - 8 u,--9G91
with the location and size of the ground level of Garage No. 2 Property. Such
Cantilever Rights may be used for the location, development and construction
of the Air Rights Building, or a portion thereof, which Air Rights Building
may extend over Garage No. 2 or a portion thereof. In no event, however, may
Seller use any portion of Garage No. 2 as structural support for the Air
Rights Building other than lateral support. The term "Staging Rights" as used
herein shall mean the right to use the roof of Garage No. 2, and/or any other
portion of Garage No. 2, the Expansion Garage or the Garage No. 2 Property or
any interior portion of the Expansion Garage as may be reasonably required, as
a staging and/or construction area for the construction of the Air Rights
Building, but only to the extent such use is feasible taking into consideration
the structural capacity of Garage No. 2. Seller shall maintain builder's risk
insurance to cover any damage to Garage No. 2 as a result of such use by
Seller of the Cantilever Rights and the Staging Rights, in an amount
reasonably acceptable to Purchaser, and naming Purchaser as an additional
insured thereunder. Seller further agrees to indemnify Purchaser and hold
Purchaser harmless from and against any and all claims, causes of action of
every kind and character and including without limitation, the amount of all
judgment, penalties, interest, fines, costs and legal expenses including
attorney fees and court costs incurred by Purchaser arising in favor of any
person or entity on account of claims, personal injuries, death or damage to
property whether real or personalty, occurring in any way incident to, in
connection with or arising out of Seller's use of Garage No. 2 for a support,
cantilever, staging or construction area. The foregoing Cantilever Rights and
Staging Rights shall be set forth in the Covenant and Easement Agreement.
16. Cantilever and Staging Rights Payments. Seller hereby agrees to
pay to Purchaser a sum (the "Cantilever Rights Payment") which shall be equal
to the greater of 0 ) $8.28 per square foot for each square foot of the Top
Existing Plane over the roof of the Garage No. 2 upon which Seller has
constructed a portion of the Air Rights Building (the "Cantilever Footprint"),
or (ii) the appraised value of the Cantilever Footprint. For purposes of
determining the appraised value of the Cantilever Footprint. Purchaser and
Seller shall choose an appraiser, and the two appraisers thus chosen shall
choose a third appraiser, and the average of the two (2) appraisals which are
closest together in dollar value shall be deemed the appraised value of the
—24-
86'=" SWO
Cantilever Footprint. The cost of such appraisals shall be borne equally
between the parties. The Cantilever Rights payment shall be due and payable
at such time as the first annual Air Rights Easement Payment becomes due and
payable. In addition, monthly during construction of the Air Rights Building,
Seller shall compensate Purchaser for Seller's use for Staging Rights of areas
otherwise designated as parking spaces in the Garage No. 2 or the Expansion
Garage, by paying Purchaser an amount (the "Staging Rights Payment") equal to
the average monthly parking revenue (or, if applicable, portion thereof) for
each parking space utilized by Seller for Staging Rights during any month (or
portion thereof). Staging Rights Payments shall continue only until such time
as the Staging Rights are no longer being used by Seller for any purpose. In
the event Purchaser is also using the roof (or a portion thereof) of Garage
No. 2 (for staging the construction of the Expansion Garage, or otherwise) at
the same time as Seller is utilizing the Staging Rights, the Staging Rights
Payment shall be reduced by one-half (1/2) during such time, if any, as
Purchaser and Seller are using the same space(s), but only with respect to
such space(s) being so used in common. The Cantilever Rights and Staging
Rights as described above shall be set forth in the Covenant and Easement
Agreement delivered to Seller at closing.
17. Damage By. Fire or Other Casualty. Purchaser shall keep Garage
No. 2 and the Expansion Garage insured against loss or damage by fire and
standard extended coverage perils which insurance coverage shall be equal to
100% of the full insurable value of the Garage No. 2 and the Expansion
Garage. If the Expansion Garage shall be damaged or destroyed, in whole or in
part, by fire or other casualty. Purchaser shall only be required to make
repairs to the Expansion Garage if Purchaser shall be permitted to make such
repairs under any bond documents affecting Purchaser pursuant to the Ordinance
and shall have received sufficient casualty insurance proceeds from the
insurance trustee to finance the completion of such repairs. If Purchaser
fails to repair or reconstruct the Expansion Garage, Seller may do so at
Seller's expense (utilizing the rights and easements granted to Seller under
this Agreement for the purpose of initially constructing or completing the
Expansion Garage in the event Purchaser fails so to do). If Seller desires to
reconstruct or repair, Seller shall give Purchaser thirty (30) days written
notice of Seller's intentions. If Purchaser fails to initiate reconstruction
- 25 -
or repair within said thirty (30) days, then at the expiration of the thirty
(30) day period, Seller may reconstruct or repair the Expansion Garage. If
Seller shall completely reconstruct the Expansion Garage, Purchaser and Seller
agree that Seller shall, do so in accordance with paragraph 6(a) hereof and
shall receive 100% of Net Operating Income until such time as Seller shall
have been repaid the Seller's Construction Costs. If Seller shall not recon-
struct the entire Expansion Garage but shall instead repair or reconstruct a
portion of same, Seller shall be entitled to receive 100% of the Net Operating
Income of both the Expansion Garage and Garage No. 2 until such time as Seller
shall have been repaid the Seller's Construction Costs incurred in connection
with such repair or restoration. If at the time of any damage to or destruc-
tion of the Expansion Garage, Seiler was entitled to receive the Net Operating
Income pursuant to the provisions of paragraph 6 hereof, and Seller shall then,
pursuant to the terms hereof, pay the cost of repair or reconstruction of the
Expansion Garage, Seller shall be entitled to all payments due it pursuant to
the provisions of this paragraph 17 in addition to the payments due it
pursuant to paragraph 6. If Purchaser shall make such repairs, Purchaser
shall have the right to change the design and modify Garage No. 2 and
Expansion Garage subject to the review and written approval of the design
plans and specifications by Seller and so long as the contemplated design of
Garage No. 2 and Expansion Garage will support and accommodate the Air Rights
Building. If Garage No. 2 or the Expansion Garage shall be taken by
condemnation or eminent domain, in whole or in part, any and all compensation
awarded for Garage No. 2 and the Expansion Garage shall be the sole property
of Purchaser (unless Seller has constructed, reconstructed or repaired all or
a portion of the Expansion Garage, in which event Seller shall be entitled to
the portion of such award which corresponds to the percentage of the cost of
the construction, reconstruction or repair of the Expansion Garage paid by
Seller) whether such compensation shall be awarded for the diminution in the
value of. or loss of the fee, provided, however, Seller shall have the sole
right to retain any portion of any award made by the appropriating authority
allocated to the Air Rights, the Retail Space, the Air Rights Building, the
Cantilever Rights, or any other rights or interests owned by Seller, and
Seller shall have the right to seek its own award for any of such rights or
interests. The provisions of this paragraph 17 shall be contained in the
Covenant and Easement.Agreement delivered to Seller at closing.
-26-
"
• 18. Event of Default Seller. It shall be a default hereunder by
Seller if Seller shalt fail to pay its Retail Space Easement Payment, Air
Rights Easement Payment, Cantilever Rights Payment, Vacant Garage No. 2
Property Payment or fund the Additional Construction Costs or any other
payment of money as herein provided or required to be made by Seller. In the
event that any payment is not paid to Purchaser within ten (10) days of the
date the same becomes due and payable, Seller covenants and agrees*to pay to
Purchaser interest on the amount thereof unpaid at a rate equal to two percent
(2%) per annum above the Prime Rate from the date that payment was due until
such time as all of said money together with interest thereon shall be paid to
Purchaser.
19. Remedies for Seller's Default. If an Event of Seller's default
shall occur, Purchaser, to the fullest extent permitted by law shall have the
right to pursue any or all of the following remedies: M the right to
terminate Seller's right to rent parking spaces in and to Garage No. 2 and the
Expansion Garage provided, however, that if Seller constructs, completes
construction, repairs a portion of or reconstructs the Expansion Garage and as
a consequence thereof shares Net Operating Income with Purchaser. Purchaser
shall have the right to offset any Net Operating Income by the amount of
damages which have been reduced to a judgment in favor of Purchaser but shall
not have the right to terminate Seller's right to rent parking spaces in
Garage No. 2 and the Expansion Garage and ( i i ) the right to maintain any and
all actions at law or suits in equity or other proper proceedings against
Seller to obtain specific performance or damages resulting from such default.
In no event, however, shall any default by Seller give rise to any right of
offset or defense for any default by Purchaser under the Bond or Bond
Agreement. The provisions of this paragraph 19 shall be contained in the
Covenant and Easement Agreement delivered to Seller at closing.
20. Event of Default - Purchaser. It shall be a default by
Purchaser hereunder if Purchaser fails to perform any of the covenants.
conditions and agreements of this Agreement which are to be performed by
Purchaser, and such failure continues for a period of sixty (60) days (or a
shorter period of time if necessary or reasonable considering the emergency
nature of Purchaser's failure) after notice thereof in writing from Seller to
Purchaser (which notice shall specify the respects in which Seller contends
- 27 -
that Purchaser has failed to perform any of such covenants, conditions and
agreements) unless such default is one which cannot reasonably be cured within
sixty (60) days and Purchaser within such sixty (60) day period shall commence
and thereafter diligently prosecutes all actions necessary to cure such
defaults. The foregoing shall not apply to any obligations of Purchaser under
the Bond or Bond Agreement to which no notice or curative rights shall pertain
except to the extent explicitly stated therein.
21. Remedies for Purchaser's Default. Seller shall have the right
to pursue any or all of the following remedies:
(i) the right to seek a writ of mandamus, injunction or other
similar relief, available to it under Florida law against the Purchaser;
(i i ) the right to maintain any and all actions at law or suits
in equity or other proper proceedings to obtain specific performance or
damages resulting from Purchaser's failure of performance or breach; and
(iii) Seller may perform such obligations on behalf of Purchaser,
at Purchaser's sole cost and expense, and Purchaser shall upon demand pay
to Seller all reasonable amounts so expended by Seller, plus interest on
such amounts at a rate equal to two percent (2%) per annum above the Prime
Rate from the date said monies were due until such time as all of said
monies together with interest thereon shall have been so paid to Seller.
The provisions of this paragraph 21 shall be contained in the Covenant and
Easement Agreement delivered to Seller at Closing.
22. Nondisturbance Agreement. The Covenant and Easement Agreement
shall include a Nondisturbance Agreement which shall provide that any
mortgagee or mortgagees of Seller shall have thirty (30) days' notice of and
the right to cure defaults of Seller and that if the interests of the Seller
are acquired by deed in lieu of foreclosure or by commencing foreclosure
proceeding, Seller's rights hereunder shall continue in favor of Seller's
successor so long as said Mortgagee shall cure or remedy Seller's Events of
Default. Neither Seller nor a tenant, subtenant, condominium purchaser or
other user of the Retail Space or Air Rights Building shall be deprived of any
rights granted by Purchaser hereunder or under the Covenant and Easement
Agreement by virtue of any default by Seller except that Purchaser shall have
the limited right to terminate Seller's right to rent parking spaces in and to
Garage No. 2 and the Expansion Garage pursuant to the terms hereof.
- 28 -
I 23. Parking Spaces. Purchaser represents that Seller, its heirs,
successors, assignees and tenants, their invitees, subtenants or licensees,
shalt at all times have access to Garage No. 2 and the Expansion Garage and
that Garage No. 2 and the Expansion Garage shall be open to the general public
on a "first come - first serve" basis. Purchaser hereby grants to Seller the
right to use ten percent (10%) of the parking spaces within Garage No. 2 and
the Expansion Garage, on an unassigned basis, at such time, if any, as the
Retail Space and the Air Rights Building has been completed for a fee equal to
the result reached by multiplying the number of spaces granted times the most
favorable rate charged by Purchaser to the public for a single parking space
in Garage No. 2 or the Expansion Garage for the applicable month (the "Monthly
Fee"). Seller must commence the use of such parking spaces and the payment of
the Monthly Fee when a Temporary Certificate of Occupancy for the Air Rights
Building is issued. The Monthly Fee shall be subject to increase or decrease
in accordance with parking rate changes applicable to Garage No. 2 and the
Expansion Garage adopted by Purchaser. If at any time the number of parking
spaces herein granted to Seller shall cause the interest payable on the
Purchaser's bonds (other than the Bond) to be subject to federal income
taxation, Purchaser shall have the right to reduce such number of parking
spaces to a number that would not jeopardize the non-taxable status of
interest on the Bond. Purchaser shall operate Garage No. 2 and the Expansion
Garage in a prudent manner to assure Seller that parking spaces will be
available. Purchaser further agrees it shall not grant long term bulk parking
space leases in the Expansion Garage.
If only Seller shall construct the Expansion Garage pursuant to the
provisions of paragraph 6(a) hereof, Purchaser shall make available all of the
parking spaces at the Expansion Garage to Seller, its successors and assigns
and the tenant of Seller (the "Allocated Spaces"). In consideration of
Purchaser's agreement to allocate the Allocated Spaces to Seller. Seller
agrees to pay Purchaser a Monthly Fee for the right of Seller, its successors,
assigns, tenants, subtenants, licensees and invitees to use the Allocated
Spaces equal to the result reached by multiplying the number of Allocated
Spaces in the Expansion Garage times the most favorable rate charged by
Purchaser to the public for a single parking space in Garage No. 2 for the
applicable month.
-29-
24. Architectural Costs. The architectural costs for the
preparation of the Plans shall be borne equally by the parties hereto.
25. Closing and Prorations.
(a) Documentary stamp tax and surtax on the warranty deed and
i
Covenant and Easement Agreement, if any, and the cost of recording any
corrective instruments, shall be paid by Seller. The cost of recording
the deed and the Covenant and Easement Agreement shall be paid by
Purchaser. The premiums for any title policies received by either party
shall be paid by such party.
(b) Taxes, insurance, water, sewer, rents and all other
proratable items shall be prorated as of the date of closing. Seller
shall receive a credit for any utility deposits which are transferable to
Purchaser at closing.
26. Seller's Closing -Documents. At closing, Seller shall deliver or
cause to be delivered to Purchaser, in form and substance satisfactory to
Purchaser, the following:
(a) A fully executed and acknowledged General Warranty Deed to
transfer and convey the Property to Purchaser. containing such terms as
called for in this Agreement.
(b) A Bill of Sale Absolute for all personal property, both
tangible and intangible, specifying that the Seller has full authority to
convey same.
(c) An assignment of all service contracts, maintenance
agreements and any other agreements pertaining to the Property.
(d) An affidavit testifying to the absence of any claim of lien
or potential lien known to Seller and further attesting that there have
been no improvements to the Property for at least ninety (90) days
immediately preceding said date of closing which have not been paid for in
full.
(e) An affidavit certifying that there are no tenancies or
occupancies of the Property and that any leases affecting the Property
have been terminated.
(f) The Covenant and Easement Agreement, with general
warranties, in recordable form, in form and content reasonably acceptable
to both parties.
— 30 —
ON 0
(g) An opinion of Seller's counsel with respect to the due
execution of this Agreement by Seller and the enforceability of the
provisions hereof.
27. Purchaser's Closing Documents. At closing Purchaser shall
deliver or cause to be delivered to Seller, in form and substance satisfactory
to Seller, the following:
(a) The Opinion of Bond Counsel, in favor of Seller, opining
that the interest on the Bond will not be includible in Seller's federal
gross income except with respect to the Alternate Minimum Tax and the
Environmental Tax.
w
(b) The Bond.
(c) The Bond Purchase Agreement and all documentation called
for thereunder.
(d) An opinion of Purchaser's counsel with with respect to the
due execution of this Agreement by Purchaser and the enforceability of the
provisions hereof.
28. Risk of Loss. If, prior to the date of closing, the whole or
any portion of the Property shall be condemned or taken by eminent domain by
any competent authority for any public or quasi -public use or purpose, then,
in that event, either Seller or Purchaser shall have the option to cancel this
Agreement or to conclude the, transaction herein provided for. If either
Seller or Purchaser elects to cancel this Agreement, then all parties shall be
relieved and discharged of all further obligations and liability hereunder.
If, however, the parties elect to close the transaction, there shall be no
reduction in the Purchase Price and Purchaser shall be entitled to receive the
entire award for the Property or the portion thereof so taken and Seller will
execute and deliver to Purchaser on the closing hereunder all proper
instruments for the assignment and collection of such award.
29. Assessments. All certified liens as of the Closing Date and
pending liens for which the work has been substantially completed as of the
Closing Date shall be paid by Seller. All other pending liens shall be
assumed by Purchaser. Seller represents that it has no actual knowledge of
any such pending liens.
30. Attorneys' Fees. etc. In the event of a default by either party
hereunder resulting in the necessity by the other party to enforce its rights
- 31 -
hereunder, all costs and reasonable attorney's fees of the prevailing party,
Including attorney's fees incurred through all appellate levels, shall be paid
by the defaulting party, whether suit be brought or not.
31. Brokerage. Purchaser and Seller agree that no real estate
broker, salesman or finder is involved in this transaction other than
Commercial Realty Alliance, Inc., Allan White, Broker, to whom Seller shall
pay all brokerage commissions due. Each party does hereby indemnify and hold
the other harmless from and against any and all liabilities and expenses in
connection with any claim for any commission, compensation or amount otherwise
alleged to be due any other broker claiming to have brought about this
transaction, by or through said indemnifying party.
32. Closing. Subject to the provisions of this Agreement, the
closing of this transaction shall occur on or before December 31, 1986 (the
"Closing Date"), simultaneously with the issuance of the Bond to Seller, at
the offices of Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel,
P.A., 1401 Brickell Avenue, Miami, Florida 33131, or at such other place
acceptable to Purchaser and Seller. At closing, Seller shall deliver a'
sufficient "gap affidavit" to allow the title insurer insuring Purchaser's,
title to insure over the "gap" at closing, and the Purchase Price shall be
paid to Seller at closing.
33. Notices. All notices or other communications given or made
pursuant hereto, or for the purposes of invoking or enforcing any of the
provisions hereof, shall be in writing by certified mail, return receipt
requested, with full postage paid, addressed as follows:
As to Purchaser: City of Miami
Department of Off -Street Parking
190 N.E. 3rd Street
Miami, FL 33132
Attn: Roger M. Carlton,
Executive Director
With a Copy to: Ronald A. Silver, Esq. and
John E. Pearson, Esq.
Sage, Gray, Todd & Sims
801 Brickell Avenue, Suite 1100
Miami, FL 33131
As to Seller: William R. Watts
426 Coral Way
Ft. Lauderdale, FL 33301
-32-
.,.
With a Copy to: Steven Kravetz, Esq. and
Jerrold A. Wish, Esq.
Greenberg, Traurig, Askew,
Hoffman, Lipoff, Rosen &
Quentel, P.A.
1401 Brickell Avenue
Miami, Florida 33131
and
Wilson B. Greaton, Jr., Esq.
P.O. Box 9027
Ft. Lauderdale, FL 33310
All notices shall be deemed given one (1) business day after mailing
as provided above or, if delivered by other means, when actually -,received.
_T'
34. Merger. All understandings and agreements heretofore had
between the parties hereto are merged in this Agreement which alone fully and
completely expresses their understanding, and the same is entered into after
full investigation. Neither party is relying upon any statement or
representation not embodied in this Agreement made by the other.
35. Survival. Except where specifically provided elsewhere herein,
all warranties, representations, covenants, obligations and agreements
contained or referred to in this Agreement shall survive the execution and
delivery of this Agreement and of any and all documents or instruments
delivered in connection herewith and shall survive the closing hereunder and
shall continue unless and until mutually cancelled or released in writing by
the parties hereto.
36. Assignment. Seller may freely assign its interest herein to his
spouse, heirs, or any institutional lender or charitable institution and to
the extent any of the provisions of this Agreement conferred rights of Seller
survive closing, said rights, where applicable, inure to the benefit of and be
assignable to Seller's assigns, heirs, successors, tenants and their
subtenants, invitees and licensees. Additionally, Purchaser and Seller shall
each have the right to assign all or any of their rights hereunder which do
not survive closing with the prior consent of the other party, which consent
shall not be unreasonably withheld or delayed and, to the extent Purchaser or
Seller assign their rights to any portion of this Agreement. Purchaser and
Seller shall be released from any obligation hereunder pertaining to the
assigned rights. Any purchaser of the Expansion or Garage No. 2 or any agency
or other governmental body succeeding to Purchaser shall be bound by all of
—33—
Purchaser's obligations hereunder and under all documents executed in
connection herewith and shall recognize all of the rights of Seller, its
successors, heirs, assigns, tenants, subtenants, their invitees and licensees
hereunder and under all documents executed in connection herewith.
37. Recordation. Neither this Agreement nor any memorandum hereof
shall be recorded by Purchaser in any public records of Dade County or the
State of Florida, and any such recordation shall constitute a material default
hereunder by Purchaser entitling Seller to any and all remedies provided for
herein or under Florida taw.
38. Plurals. For all purposes of interpretation and construction of
this Agreement, the singular shall include the plural and the plural shall
include the singular. Words of any gender shall include words of any other
gender.
39. Captions Captions and paragraph headings used herein are for
convenience only and are not part of this Agreement and shall not be used in
construing it.
40. No Partnership or Joint Venture. It is mutually understood and
agreed that nothing contained in this Agreement is intended or shall be
construed in any manner or under any circumstances whatsoever as creating or
establishing the relationship of co-partners, or creating or establishing the
relationship of a joint venture between Purchaser and Seller, or as
constituting Seller as the agent or representative of the Purchaser for any
purpose or in any manner whatsoever.
41. Indemnification of Escrow Agent. All parties do hereby release
Escrow Agent from any liability for any loss caused by said Escrow Agent and
do hereby indemnify and hold Escrow Agent harmless from any loss or liability
incurred by Escrow Agent hereunder, except for actions by Escrow Agent of
gross negligence, willful and malicious misconduct. If in doubt as to the
disposition of any escrowed funds or documents, Escrow Agent shall be entitled
to interplead all or a portion of such escrowed funds and documents, and upon
payment of such funds or delivery of such documents into the appropriate court
registry, Escrow Agent shall be relieved of all further liability in
connection with the funds so deposited and documents so delivered.
42. Successors/Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors, heirs and
-34-
assigns. and no change or modification hereof shall be binding upon the
parties unless evidenced by an instrument in writing, or unless made in
accordance with the provisions hereof. Purchaser and Seller hereby agree to
deliver to any lender or tenant of Seller or Purchaser or of any of Seller's
or Purchaser's interests as provided for, reserved or referred to herein, or
any other party, upon request of Seller or Purchaser, any documentation
reasonably requested by Seller or Purchaser or such other party to evidence
such party's rights hereunder or under any document, agreement or interest
arising hereunder or in connection herewith,_ as a successor in interest,
assignee, or other beneficiary of such rights.
43. Governing Law. This Agreement shall be governed, constructed
and enforced in accordance with the laws of the State of Florida, both
remedial and substantive.
44. Closing Contingent on City Commissions Issuance of Bond and
Execution and Delivery of Easement and Covenant Agreement and Failure of
Title. If for any reason, the City Commission shall be unable to or shall
refuse to authorize this transaction and to issue the Bond, or if the parties
are unable to agree on the terms and conditions of the Covenant and Easement
Agreement or the Bond Agreement and either party or both refuse to execute
same at closing, or if the title to the Property or the Existing Garage are
not in compliance with the Agreement, then at the election of either party,
this Agreement shall immediately terminate and neither party shall be liable
to the other with respect to this Agreement and the within described
transaction as if to all intents and purposes this Agreement was never entered
into by the parties hereto. Purchaser agrees to use its best efforts to seek
the approval and concurrence of the City Commission to the within transaction
as promptly as possible and within the time parameters for closing herein set
forth.
45. No Discrimination. No covenant, agreement, lease, conveyance or
other instrument shall be effected or executed by either Purchaser or Seiler
or any of its successors or assigns, whereby the Property, the Garage No. 2
Property and/or any improvements constructed thereon is restricted by Seller
or Purchaser, or any successor in interest, upon the basis of race, color,
religion, sex or national origin in the sale, lease, use or occupancy
thereof. Purchaser and Seller will comply with all applicable state and local
- 35 -
laws, in effect from time to time, prohibiting discrimination or segregation
by reason of race, color, religion, sex, or national origin in the sale, lease
or occupancy of the Leased Premises.
46. Severability. No determination by any court, governmental or
administrative body or agency or otherwise that any provision of this
Agreement or any amendment hereof is invalid or unenforceable in any instance
shall affect the validity or enforceability of (a) any other provision
thereof, or (b) such provision in any circumstance not controlled by such
determination. Each such provision shall remain valid and enforceable to the
fullest extent allowed by, and shall be construed wherever possible as being
consistent with, applicable law.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
Signed, sealed and delivered SELLER:
in the presence of:
1571H/568A
NORTHERN TRUST BANK, Trustee in the
presence of:
By:
PURCHASER:
THE CITY OF MIAMI DEPARTMENT OF
OFF-STREET PARKING, an agency of the
City of Miami
By:
Roger M. Carlton,
Executive Director
- 36 -