HomeMy WebLinkAboutPre Legislations 04-14-11Date: 4/ 10/2008
AGENDA ITEM SUMMARY FORM
FILE ID:
- CC(1y, 1
Requesting Department: City Manager
Commission Meeting Date: 4/2E0008 District Impacted: UI
Type: 1 / Resolution ❑ Ordinance 0 Emergency Ordinance ❑ Discussion Item
❑ Other
Subject: Amendment No. 3 of Grant Agreement Among the City of Miami and Flagler First
Condominiums. LLC.
Purpose of Item:
A Resolution of the Miami City Commission authorizing the City Manager to execute Amendment
No. 3 to the agreement with Flagler First Condominiums, LLC, relating to the redevelopment of an
affordable housing condominium project located at 101 East Flagler Street, Miami, FL, providing an
extension of the deadline for the receipt of Certificates of Occupancy until June 30, 2008, and an
extension of the deadline for the sale of all project residential condominium units until June 30, 2010.
Background Information:
The City of Miami entered into an Agreement with Flagler First Condominiums, LLC for the
construction of no less than ninety (90) affordable residential condominium units. Due to problems
related to the rehabilitation/construction of the project, including further structural work required,
hurricane preparations in 2005, sidewalk construction taking place on Flagler Street causing
significant delays in the construction, and the difficulties associated with this site without the use of a
staging area, the developer has requested an additional extension to the agreement. As consideration
for the extension, the City has implemented certain requirements including interest payments and
...i
adherenee to specific affordability guidelines.
Budget Impact Analysis
NO Is this item related to revenue?
NO Is this item an expenditure? If so, please identify funding source below.
General Account No:
Special Revenue Account No:
CIP Project No:
NO Is this item funded by Homeland Defense/Neighborhood Improvement Bonds?
Start Up Capital Cost:
Maintenance Cost:
Total Fiscal Impact:
Final Approvals
IS)GN AND DATE1
CIP Budget
If using or receiving capital funds
Grants Risk Management
Purchas�ng'f� Dept. Director
Chief, City Manager
Page 1 of 1
City of Miami
Text File Report
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
File ID: 08-00441
Enactment#: R-08-0227
Version: 1
Type: Resolution Status: Passed
Enactment Date: 4/24/08
Introduced: 4/15/08 Controlling Body: Office of the City
Clerk
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING
THE CITY MANAGER TO EXECUTE AMENDMENT NO. 3, IN SUBSTANTIALLY THE
ATTACHED FORM, TO THE AGREEMENT WITH FLAGLER FIRST CONDOMINIUMS, LLC,
RELATING TO THE REDEVELOPMENT OF AN AFFORDABLE HOUSING CONDOMINIUM
PROJECT KNOWN AS FLAGLER FIRST CONDOMINIUM, LOCATED AT 101 EAST FLAGLER
STREET, MIAMI, FLORIDA ("PROJECT"), PROVIDING AN EXTENSION OF THE DEADLINE
FOR THE RECEIPT OF CERTIFICATES OF OCCUPANCY UNTIL JUNE 30, 2008, AN
EXTENSION OF THE DEADLINE FOR THE SALE OF ALL PROJECT RESIDENTIAL
CONDOMINIUM UNITS UNTIL JUNE 30, 2010, A THIRTY (30) YEAR COVENANT PERIOD FOR
TWENTY-FIVE (25) OF THE PROJECT UNITS, AND SUCH OTHER TERMS AS PROVIDED IN
THE ATTACHED AMENDMENT AND COVENANT.
WHEREAS, the City of Miami ("City") entered into an Agreement (the "Agreement") with Flagler First Condominiums,
LLC (the "Developer") relating to the redevelopment of an affordable housing condominium project, known as Flagler First
Condominium, located at 101 East Flagler Street, Miami, Florida, to consist of no less than ninety (90) affordable residential
condominium units and approximately 7,000 square feet of retail space (the "Project"); and
WHEREAS, in accordance with the Agreement the Developer was required to obtain certificates of occupancy for the
Project and sell eighty-one (81) of the Project's residential condominium units by June 23, 2005; and
WHEREAS, the Developer experienced delays beyond its reasonable control in conducting extensive structural testing
as required by the City (including complete asbestos abatement), in vacating tenants and in bringing the building's premises
to hurricane/wind load and fire code requirements, which resulted in a delay in the completion of the plans not initially
contemplated by the Developer; and
WHEREAS, for the aforesaid reasons the Developer requested an extension until December 23, 2006 for the receipt of
Project certificates of occupancy and the sale of eighty-one (81) of the Project's residential condominium units, and was
granted the extension by Resolution No. 05-0371, adopted June 9, 2005; and
WHEREAS, the Developer experienced unexpected further delays due to further structural work required, hurricane
preparations in 2005, sidewalk construction taking place on Flagler Street causing significant delays in the construction, and
the difficulties associated with this site without the use of a staging area; and
—. — — — .WHEREAS, for the aforesaid reasons the Developer requested an additional extension until June 30, 2007 in order to
City of Miami
Page 1 Printed on 3/14/2011
Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2}
City of Miami
Page 2 Printed on 3/14/2011
Oq
AMENDMENT NO. 3 TO THE AGREEMENT
BETWEEN
CITY OF MIAMI
AND
FLAGLER FIRST CONDOMINIUMS. L.L.C.
This Amendment is entered into as of this 2"d day of May, 2008 (the "Amendment") by
and between the City of Miami, a municipal corporation of the State of Florida (the "City") and
Flagler First Condominiums, L.L.C., a Florida limited liability company, having its offices at 48
East Flagler Street, Penthouse-5, Miami, Florida 33131 ("FFC"), for the purpose of modifying
that certain Agreement between the City and FFC dated December 23, 2002 (the "Agreement").
WHEREAS, FFC has undertaken the redevelopment of an affordable housing
condominium project, known as Flagler First Condominium, located at 101 East Flagler Street,
Miami, Florida, to consist of no less than ninety (90) affordable residential condominium units
and approximately 7,000 square feet of retail space (the "Project"); and
WHEREAS, in connection therewith, the City allocated $1,800,000 for Project
redevelopment expenses (the "Grant"), as set forth more fully in the Agreement; and
WHEREAS, the Grant is subject to the terms and conditions contained in various Grant
documents, including, but not limited to, the Agreement, and the Mortgage and Security
Agreement (the "Mortgage") executed in connection therewith.
WHEREAS, in accordance with the Agreement, FFC is required to obtain the Project
certificates of occupancy and sell eighty-one (81) of the Project's residential condominium units
by June 23, 2005; and
WHEREAS, pursuant to City Commission Resolution 05-0371, adopted June 9, 2005,
Amendment No. 1 to the Agreement, dated June 15, 2005, City Commission Resolution 06-
0733, adopted December 14, 2006 and Amendment No. 2 dated February 8, 2007, the City and
FFC agreed to an extension, until June 30, 2007, for FFC to obtain the Project certificates of
occupancy and sell eighty-one (81) of the Project's residential condominium units. (Collectively,
the Agreement,, the Mortgage, Amendment No. 1 and Amendment No. 2, and any and all other
documents executed in connection with the Grant, are hereinafter referred to as the "Grant
Documents".); and
WHEREAS, FFC has experienced further delays, which have resulted in a delay in the
completion of the project; and
WHEREAS, for the aforesaid reasons FFC has requested an extension until June 30,
2008 for the receipt of Project certificates of occupancy and until June 30, 2010 for the sale of all
of the Project's residential condominium units; and
it: Document 163165
WHEREAS, pursuant to City Commission Resolution 08-0227, adopted April 24, 2008,
such extensions were approved; and
WHEREAS, the City and FFC desire and agree to amend the Agreement and the other
Grant Documents as hereinafter provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the City and FFC agree as follows:
1. Each and every of the above recitals is true and correct.
2. FFC acknowledges that the outstanding principal balance of the Grant is
$1,800,000.
3. The Grant Documents are hereinafter amended:
(a) To provide that on or before June 30, 2008, FFC shall obtain all required certificates
of occupancy and/or certificates of completion, as appropriate, for the Project.
(b) To provide that on or before June 30, 2010, FFC shall sell all of the residential
condominiums in the Project in accordance with the requirements of the Grant Documents, as
amended hereby.
(c) To provide that in the event that on or before June 30, 2008 FFC has obtained all
required certificates of occupancy and/or certificates of completion, as appropriate, for the
Project, then, in such event, interest shall cease to be charged on the amount of Grant funds
disbursed as of the date of issuance of all such certificates of occupancy and/or certificates of
completion.
(d) To provide that in the event that on or before June 30, 2010 all of the residential
condominiums in the Project have not been sold in accordance with the requirements of the
Grant Documents, as amended hereby, then, in such event, FFC shall pay to the City $72,000 for
each of the twenty-five (25) City Assisted Units identified in the Declaration of Restrictive
Covenants, a copy of which is attached hereto as Exhibit A (the "Covenant"), that remains
unsold as of that date. Such payment shall be made on or before July 15, 2010. For the purposes
hereof, the term "sold" shall mean that title and possession to such residential condominium unit
shall have been conveyed to such homebuyer.
(e) To provide that resale restrictions will be imposed on the twenty-five (25) City
Assisted residential condominium units in the Project, as described more fully in the Covenant.
4. FFC represents, warrants and confirms to the City that: (i) the Agreement as
modified hereby is a valid obligation of FFC enforceable in accordance with its terms and is
binding upon FFC, and its successors, assigns and administrators without any claim, defense of
off -set or other sum due, pending or existing; (ii) all of the terms, covenants, conditions,
representations, warranties and agreements contained in the Mortgage are hereby ratified and
confirmed in all respects; (iii) obligations imposed on FFC under the Grant Documents shall
continue to be secured by the Mortgage without novation or interruption; and (iv) the Mortgage
it: Document 163165 2
is a valid obligation of FFC enforceable in accordance with its terms and is binding upon FFC, and
its successors, assigns and administrators without any claim, defense of off -set or other sum due,
pending or existing.
5. Except as modified herein, all terms and conditions of the Grant Documents shall
remain in full force and effect.
6. If any provision of this Amendment conflicts with any applicable law or
regulation, only the conflicting provision shall be deemed by the parties hereto to be modified, or
to be deleted if modification is inappropriate, to cause the provision to be consistent with the law
or regulation. However, the obligations under this Amendment shall continue and all other
provisions of this Amendment shall remain in full force and effect.
7. This Amendment shall be construed, interpreted, enforced and governed by and in
accordance with the laws of the State of Florida.
8. This Amendment sets forth the entire agreement between the parties and
supersedes all prior and contemporaneous negotiations, understandings and agreements, written
or oral between the parties relating to the subject matter herein.
9. All capitalized terms used but not defined herein shall have their respective
meanings set forth in the Grant Documents.
10. Waiver of Jury Trial. Neither FFC, nor any assignee, successor, heir or personal
representative of FFC, nor any other person or entity, shall seek a jury trial in any lawsuit,
proceeding, counterclaim or any other litigation procedure based upon or arising out of any of
the Grant Documents and/or this Amendment, or the dealings or the relationship between or
among such persons or entities, or any of them. Neither FFC, nor any other person or entity will
seek to consolidate any such action in which a jury trial has been waived with any other action.
The provisions of this paragraph havebeen fully discussed by the parties hereto, and the
provisions hereof shall be subject to no exceptions. No party to this Amendment has in any
manner agreed with or represented to any other party that the provisions of this paragraph will
not be fully enforced in all instances.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 3 to
the Agreement on the day and year first above written.
Wi ess: a
Print Name: £,icCrq L-
it: Document 163165
Flagler First Condominiums, L.L.C.,
a Florida limited liability company
By: Old ilentrust Buil g Partnership,
Florida gineral partne .p, Sole Member
By:
S
Date:
o Rok, Managing Partner
Vir f
3
A 1'i'EST:
f&
)14 riscilla A. Th mpson, City Clerk
Date: V-iO—d!
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru, ' Attorney
IT-Flagler Amendment No. 3-04-08; 4-15-08; 09-22-08; 10-20-08; 01-12-09
it: Document 163165
City of Ma icipal corporation
of the State o orida
By:
Date:
Pedro G. Hem , City Manager
4
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE) �►! QQ
Befo a me, the u dersi ned authority, ersonally appeared Sclo-to "-Ot
as, (i - /W of OLD bUi L8flli - Pft i o e well known to
be the person described in and who executed the foregoing instrument and who acknowledged to
and before me that he/she exete said instrument under oath, and for the purposes therein
expressed. Q CfU f-Iii -64ii '_41
+%r ocFlmamesrpooll,og7s )1 -,Q.arico rat
Witness my hand and official seal in the County and St last aforesaid this 12. dayU /
,j �/L7'
of m�'�'2009. � Eo�i�1¢itc
PRINTED, STAMPED OR TYPED
NAME OF NOTARY PUBLIC
Did Take An Oath
id Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
SIGNATURE OF NOTARY PUBLIC
STATE OF FLORIDA
t'la r tjP 1
Ewan R. Aladin
Nor
c O2,mrc.
Before me, the undersigned authority, personally appeared,
as, of , to me well known to
be the person described in and who executed the foregoing instrument and who acknowledged to
and before me that he/she executed said instrument under oath, and for the purposes therein
expressed.
Witness my hand and official seal in the County and State last aforesaid this day of
, 2009.
PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC
NAME OF NOTARY PUBLIC STATE OF FLORIDA
Did Take An Oath
Did Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
it: Document 163165
5
Exhibit 2
City Assisted Units
306 610,
402 702
407 708
408 709
409 803
503 808
507 903
508 908
50.9 910
510 1003
603 1006
608 1008
609
163331
1
This Instrument Prepared By
and Retum To:
Ilene Temchin, Esq.
City of Miami
Office of the City Attorney
444 S.W. god Avenue
Miami, Florida 33130-1910
DECLARATION
OF
RESTRICTIVE COVENANTS
Exhibit A
This Declaration of Restrictive Covenants (the "Covenant") made as of the 2"d day of
May, 2008 by Flagler First Condominiums, L.L.C., a Florida limited liability company
(hereinafter the "FFC"), is in favor of the City of Miami, a municipal corporation of the State of
Florida (hereinafter the "City").
RECITALS
WHEREAS, FFC has undertaken the redevelopment of an affordable housing
condominium project, known as Flagler First Condominium, to consist of no less than ninety
(90) affordable residential condominium units and approximately 7,000 square feet of retail
space (the "Project"); and
WHEREAS, the Project is located at 101 East Flagler Street, Miami, Florida, legally
described on Exhibit 1 hereto (the "Property").
WHEREAS, in connection therewith, the City allocated $1,800,000 for Project
redevelopment expenses (the "Grant); and
WHEREAS, the Grant is subject to the requirements of that certain Agreement between
the City and FFC, dated December 23, 2002, joined by Old Centrust Building Partnership, a
Florida general partnership, Amendment No. 1 to the Agreement, dated June 15, 2005,
Amendment No. 2, dated February 8, 2007 and Amendment No. 3, dated the date hereof (the
Agreement, Amendment No. 1, Amendment No. 2 and Amendment No. 3 are jointly referred to
herein as the "Agreement"); and
WHEREAS, in accordance with the requirements of the Agreement, the twenty-five (25)
residential condominium units identified on Exhibit 2 hereto (the "City Assisted Units") are
subject certain resale restrictions for a period of thirty (30) years; and
it: Document 163165
6
WHEREAS, FFC desires to make a binding commitment to assure that the City Assisted
Units are sold in accordance with the provisions of this Covenant.
NOW THEREFORE, FFC voluntarily covenants and agrees that the City Assisted Units
shall be subject to the following restrictions that are intended and shall be deemed to be
covenants running with the land and binding upon FFC, and its heirs, successors and assigns as
follows:
Section 1. The recitals and findings set forth in the preamble of this Covenant are
hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section.
Section 2. Term of Covenant: For each City Assisted Unit identified on Exhibit 2
hereof, this Covenant shall remain in full force and effect and shall be binding upon FFC, its
successors and assigns, from the date hereof until thirty (30) years from the date of FFC's sale of
such City Assisted Unit to a homebuyer at a sales price not in excess of ninety percent (90%) of
the median Dade County new housing sales price at the time of the sale, as described more fully
below in section 4 hereof (the "Covenant Period").
Section 3. Use of Property: Throughout the Covenant Period, the City Assisted Units
shall be sold at a sales price not in excess of ninety percent (90%) of the median Dade County
new housing sales price at the time of the sale.
Section 4. FFC covenants and agrees that each deed conveying a City Assisted Unit
from FFC to a homebuyer shall contain the following restrictive covenant:
"Until thirty (30) years from the date hereof (the "Covenant Period"), this
property shall be sold at a sales price not in excess of ninety percent (90%) of the
median Dade County new housing sales price at the time of the sale.
Notwithstanding the foregoing, an owner of this property may sell it
during the Covenant Period without regard to the restriction contained in the
previous paragraph hereto upon repayment by such owner to the City of Miami
(the "City") of the City funded subsidy for this property, in the amount of $72,000
(the "Recapture Requirement"), provided, however, that for each year that this
property is owned by a homebuyer who purchased the property at a sales price not
in excess of ninety percent (90%) of the median Dade County new housing sales
price at the time of the sale, such Recapture Requirement shall be reduced by
3.33%. For the purposes hereof, the term "year" shall mean the twelve month
period ending one year from the date hereof, and each subsequent anniversary
thereof. "
Section 5. Except for FFC's sales of Project units to homebuyers in accordance with
the Agreement, FFC covenants and agrees not to further encumber or convey any interest in the
Project and/or the Property without the prior written consent of the City. For the purposes of this
Covenant, any change in the ownership or control of FFC prior to FFC's sale of all of the
Project's residential condominium units shall be deemed a conveyance of an interest in the
Project.
it: Document 163165
7
Section 6. FFC covenants and agrees that in the event that prior to FFC's sale of all
of the Project's residential condominium units (i) FFC shall sell or convey any interest in the
Project and/or the Property without the City's prior written consent (except for sales of Project
units to homebuyers in accordance with the Agreement), or (ii) that FFC ceases to exist as an
organization, FFC shall immediately make payment to the City in an amount equal to the full
amount of Grant disbursed and outstanding, all interest due thereon, and all unpaid fees, charges
and other obligations of FFC due under any of the Grant documents.
Section 7. Notwithstanding any other provision of this Covenant, Sections 5 and 6
hereof shall not apply to any of the Commercial Units described in the Declaration of Flagler
First Condominium or any of the common or limited elements appurtenant thereto. This
Covenant shall not prohibit or restrict FFC from selling, mortgaging, alienating, improving,
managing or taking any other action with respect to any such Commercial Unit or Units, or
restrict or limit any purchase price with respect to the sale thereof. The sale, mortgaging,
alienating, improving, managing or the taking of any other action with respect to any such
Commercial Unit or Units shall not be a violation of this Covenant or cause FFC to be obligated
to make any payment under Section 6 hereof.
Section 8. Inspection and Enforcement: It is understood and agreed that any official
inspector of the City shall have the right any time during normal working hours to enter and
investigate the use of the Project to determine whether the conditions of this Covenant are being
complied with.
Section 9. Amendment and Modification: This Covenant may be modified or
amended as to any portion of the Project by a written instrument executed on behalf of the City
and by the then owner of the fee simple title to the land to be affected by such modification or
amendment.
Section 10._. Severability:. Invalidation of one of the provisions of this Covenant by
judgment of Court shall not affect any of the other provisions of the Covenant, which shall
remain in full force and effect.
Section 11. Recordation: This Covenant shall be filed of record among the Public
Records of Miami -Dade County, Florida, at the sole cost and expense of FFC.
Section 12. This Covenant is a covenant running with the land. Thirty (30) years from
the date of FFC's sale of each City Assisted Unit to a homebuyer at a sales price not in excess of
ninety percent (90%) of the median Dade County new housing sales price at the time of the sale,
this Covenant shall lapse and be of no further force and effect as to that City Assisted Unit.
Thirty (30) years from the date of FFC's sale of the last of the City Assisted Unit to a homebuyer
at a sales price not in excess of ninety percent (90%) of the median Dade County new housing
sales price at the time of the sale, this Covenant shall lapse in its entirety and be of no further
force and effect.
Section 13. The provisions of this Covenant relating to "City Assisted Units" are intend
to apply only to those twenty-five (25) Project residential condominium units identified on
Exhibit 2 hereto.
it: Document 163165
8
A
Section 14. All capitalized terms not defined herein shall have the meanings provided
in the Agreement.
IN WITNESS WHEREOF, FFC has caused this Declaration of Restrictive Covenants to
be executed by its duly authorized officer on the day and year first above -written.
Witness:
Print Name:
ACKNOWLEDGMENT
STATE OF FLORIDA
) SS:
COUNTY OF NIIAMI-DADE )
Flagler First Condominiums, L.L.C.,
a Florida limited liability company
By: Old Centrust Building Partnership,
Florida general partnership, Sole Member
By:
Sergio Rok, Managing Partner
Date:
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
, 2009 by , as
of , on behalf of , who is personally known to me or who
produced as identification and did/did not take an oath.
Signature of Notary Public, State of Florida
My Commission Expires:
it: Document 163165 9
Printed Name of Notary Public
Exhibit 1
Legal Description
Lot 11 and the West One -Half of Lot 12, in Block 117 NORTH, CITY OF MIAMI, according to
the Plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade
County, Florida.
it: Document 163165
10
This Instrument Prepared By
and.Retum To:
Ilene Temchin, Esq.
City of Miami
Office of the City Attorney
444 S.W. god Avenue
Miami, Florida 33130-1910
DECLARATION
OF
RESTRICTIVE COVENANTS
110011100118110111 I10I01011101010 0111110011001
CFN 2009R0229467
OR Bk 26807 P9S 2956 - 2961; (bras
RECORDED 03/30/2009 11:54:27
HARVEY RUVINr CLERK. OF COURT
MIAMI-DADE COUNTY► FLORIDA
This Declaration of Restrictive Covenants (the "Covenant") made as of the 2nd day of
May, 2008 by Flagler First Condominiums, L.L.C., a Florida limited liability company
(hereinafter the "FFC"), is in favor of the City of Miami, a municipal corporation of the State of
Florida (hereinafter the "City").
RECITALS
WHEREAS, FFC has undertaken the redevelopment of an affordable housing
condominium project, known as Flagler First Condominium, to consist of no less than ninety
(90) affordable residential condominium units and approximately 7,000 square feet of retail
space (the "Project"); and
WHEREAS,. the Project is .located at 101 East Flagler Street, Miami, Florida, legally
described on Exhibit 1 hereto (the "Property").
WHEREAS, in connection therewith, the City allocated $1,800,000 for Project
redevelopment expenses (the "Grant); and
WHEREAS, the Grant is subject to the requirements of that certain Agreement between
the City and FFC, dated December 23, 2002, joined by Old Centrust Building Partnership, a
Florida general partnership, Amendment No. 1 to the Agreement, dated June 15, 2005,
Amendment No. 2, dated February 8, 2007 and Amendment No. 3, dated the date hereof (the
Agreement, Amendment No. 1, Amendment No. 2 and Amendment No. 3 are jointly referred to
herein as the "Agreement"); and
WHEREAS, in accordance with the requirements of the Agreement, the twenty-five (25)
residential condominium units identified on Exhibit 2 hereto (the "City Assisted Units") are
subject certain resale restrictions for a period of thirty (30) years; and
WHEREAS, FFC desires to make a binding commitment to assure that the City Assisted
Units are sold in accordance with the provisions of this Covenant.
it: Document 163164
1
NOW THEREFORE, FFC voluntarily covenants and agrees that the City Assisted Units
shall be subject to the following restrictions that are intended and shall be deemed to be
covenants running with the land and binding upon FFC, and its heirs, successors and assigns as
follows:
Section 1. The recitals and findings set forth in the preamble of this Covenant are
hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section.
Section 2. Term of Covenant: For each City Assisted Unit identified on Exhibit 2
hereof, this Covenant shall remain in full force and effect and shall be binding upon FFC, its
successors and assigns, from the date hereof until thirty (30) years from the date of FFC's sale of
such City Assisted Unit to a homebuyer at a sales price not in excess of ninety percent (90%) of
the median Dade County new housing sales price at the time of the sale, as described more fully
below in section 4 hereof (the "Covenant Period").
Section 3. Use of Property: Throughout the Covenant Period, the City Assisted Units
shall be sold at a sales price not in excess of ninety percent (90%) of the median Dade County
new housing sales price at the time of the sale.
Section 4. FFC covenants and agrees that each deed conveying a City Assisted Unit
from FFC to a homebuyer shall contain the following restrictive covenant:
"Until thirty (30) years from the date hereof (the "Covenant Period"), this
property shall be sold at a sales price not in excess of ninety percent (90%) of the
median Dade County new housing sales price at the time of the sale.
Notwithstanding the foregoing, an owner of this property may sell it
during the Covenant Period without regard to the restriction contained in the
previous paragraph hereto upon repayment by such owner to the City of Miami
(the "City") of the City funded subsidy for this property, in the amount of $72,000
(the "Recapture Requirement"), provided, however, that for each year that this
property is owned by a homebuyer who purchased the property at a sales price not
in excess of ninety percent (90%) of the median Dade County new housing sales
price at the time of the sale, such Recapture Requirement shall be reduced by
3.33%. For the purposes hereof, the term "year" shall mean the twelve month
period ending one year from the date hereof, and each subsequent anniversary
thereof. "
Section 5. Except for FFC's sales of Project units to homebuyers in accordance with
the Agreement, FFC covenants and agrees not to further encumber or convey any interest in the
Project and/or the Property without the prior written consent of the City. For the purposes of this
Covenant, any change in the ownership or control of FFC prior to FFC's sale of all of the
Project's residential condominium units shall be deemed a conveyance of an interest in the
Project.
Section 6. FFC covenants and agrees that in the event that prior to FFC's sale of all
of the Project's residential condominium units (i) FFC shall sell or convey any interest in the
it: Document 163164
2
Project and/or the Property without the City's prior written consent (except for sales of Project
units to homebuyers in accordance with the Agreement), or (ii) that FFC ceases to exist as an
organization, FFC shall immediately make payment to the City in an amount equal to the full
amount of Grant disbursed and outstanding, all interest due thereon, and all unpaid fees, charges
and other obligations of FFC due under any of the Grant documents.
Section 7. Notwithstanding any other provision of this Covenant, Sections 5 and 6
hereof shall not apply to any of the Commercial Units described in the Declaration of Flagler
First Condominium or any of the common or limited elements appurtenant thereto. This
Covenant shall not prohibit or restrict FFC from selling, mortgaging, alienating, improving,
managing or taking any other action with respect to any such Commercial Unit or Units, or
restrict or limit any purchase price with respect to the sale thereof. The sale, mortgaging,
alienating, improving, managing or the taking of any other action with respect to any such
Commercial Unit or Units shall not be a violation of this Covenant or cause FFC to be obligated
to make any payment under Section 6 hereof.
Section 8. Inspection and Enforcement: It is understood and agreed that any official
inspector of the City shall have the right any time during normal working hours to enter and
investigate the use of the Project to determine whether the conditions of this Covenant are being
complied with.
Section 9. Amendment and Modification: This Covenant may be modified or
amended as to any portion of the Project by a written instrument executed on behalf of the City
and by the then owner of the fee simple title to the land to be affected by such modification or
amendment.
Section 10. Severability: Invalidation of one of the provisions of this Covenant by
judgment of Court shall not affect any of the other provisions of the Covenant, which shall
remain in full force and effect.
Section 11. Recordation: This Covenant shall be filed of record among the Public
Records of Miami -Dade County, Florida, at the sole cost and expense of FFC.
Section 12. This Covenant is a covenant running with the land. Thirty (30) years from
the date of FFC's sale of each City Assisted Unit to a homebuyer at a sales price not in excess of
ninety percent (90%) of the median Dade County new housing sales price at the time of the sale,
this Covenant shall lapse and be of no further force and effect as to that City Assisted Unit.
Thirty (30) years from the date of FFC's sale of the last of the City Assisted Unit to a homebuyer
at a sales price not in excess of ninety percent (90%) of the median Dade County new housing
sales price at the time of the sale, this Covenant shall lapse in its entirety and be of no further
force and effect.
Section 13. The provisions of this Covenant relating to "City Assisted Units" are intend
to apply only to those twenty-five (25) Project residential condominium units identified on
Exhibit 2 hereto.
Section 14. All capitalized terms not defined herein shall have the meanings provided
in the Agreement.
it: Document 163164
3
IN WITNESS WHEREOF, FFC has caused this Declaration of Restrictive Covenants to
be executed by its duly authorized officer on the day and year first above -written.
Wi ss:
Print Name:-rtdira 2,
ACKNOWLEDGMENT
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
Flagler First Condominiums, L.L.C.,
a Florida limited liability company
By: Old i entrust Buil '+ ng Partnership,
Florida : neral partn' hip, Sole Member
By:
gio ' ok, anaging Partner
Date: 3 )% zi0
FOREGOING INSTRUMENT was ac o�wledged before me on this 1 day of
-6-10 KUk. , as Pr /p6. P077/4
of Vuoi PG" frrst'etnidirtins Iti4ho is personally known to me or who
produced as identijtion and did/did not take an oath.
My Commission V �' b� i1L6RiDA
nevi Evan R. Marbin
s ,`-Commission #DD598281
.,;,;,..' Expires: NOV. 11, 2010
BONDED ThRU ATLANTIC BONDING CO, INC.
it: Document 163164
Signature of Notary Public, State of Florida
Printed Name of Notary Public
4
Exhibit 1
Leaa1 Description
Lot 11 and the West One -Half of Lot 12, in Block 117 NORTH, CITY OF MIAMI, according to
the Plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade
County, Florida.
it Document 163164 5
Exhibit 2
City Assisted Units
306 610,
402 702
407 708
408 709
409 803
503 808
507 903
508 908
50.9 910
510 1003
603 1006
608 1008
609
163331
OR BK 26807 PG 2961
LAST PAGE
1
CERTIFICATE OF AUTHORIZATION
The undersigned, being the sole Manager of FLAGLER FIRST CONDOMINIUMS, L.L.C., a Florida
limited liability company (the "Company"), hereby executes this Certificate to acknowledge, consent to, ratify
and/or approve of all the actions and adopt the resolutions set forth below.
1. OLD CENTRUST BUILDING PARTNERSHIP, a Florida general partnership ("OCBP") is the
sole Member of the Company.
2. Sergio Rok is the duly elected manager of the Company
3. Sergio Rok, as sole manager of the Company is hereby authorized and empowered, on behalf of
the Company, and in its name, to enter into any and all agreements with the City of Miami or Miami -Dade County,
Florida in connection with any grants, mortgages, or agreements.
4. The undersigned further certifies that the foregoing actions are all authorized by the provisions of
the Articles of Organization; that none of such actions is in conflict with any provision thereof; and that all of said
actions are hereby consented to and approved.
DATED the 12th day of March, 2009.
FLA j ER FIRST CONDO
limit liability company
IUMS, L.L.C., a Florida
so e Manager
F:\Dan\ROKWlagler First Condominiums\Certificate of Authorization - Flagter First Condominiums (Wachovia Refinance).rtf
CERTIFICATE QF AUTHORIZATION
The undersigned, being all of the partners of OLD CENTRUST BUILDING PARTNERSMP, a
Florida general partnership (the "Partnership"), hereby execute this Certificate to acknowledge, consent to,
ratify and/or approve of all the following actions:
1. SERGIO ROK has previously been appointed and continues to serve as the sole successor
Managing Partner of the Partnership and as the sole Manager of FLAMER FIRST CONDOMINIUMS,
L.L.C., a Florida limited liability company (the " Company").
2. The Partnership is the sole member of the Company.
3. SERGIO ROK, as Manager of the Company and Managing Partner of the Partnership, is
hereby authorized and empowered, on behalf of the Company (and/or Partnership), and in its name, to:
a. make, execute and deliver any and all instruments necessary or desired to effectuate
the sale, conveyance, and transfer of each of the ninety-one (91) residential and five (5) commercial units
(singularly a "Unit" and collectively the "Units") in Flagler First Condominium (the "Building") located at
101 E. Flagler Street, Miami, Florida 33131, including but not limited to:
(i) entering into any Flagler First Condominium Purchase Agreement (singularly
a "Contract" and collectively the "Contracts") containing such terms and provisions and such purchase prices
as Sergio Rok deems necessary within his sole discretion in order to sell a Unit in the Building;
(ii) entering into any and all amendments to any of the Contract upon any such
terms as Sergio Rok may deem necessary within his discretion including, but not limited to, winch may result
in the Company agreeing to certain concessions to the Purchasers, including but not limited to waiving any
developer's fees and paying any maintenance assessments or parking expenses on behalf of a Purchaser;
(ill) executing any Special Warranty Deed from the Company, as Seller, to each
respective purchaser (collectively the "Purchasers"), as Buyer, of a Unit, in accordance with the applicable
Contract or amendments thereto;
(iv) entering into or executing any other agreement pertaining to the sale of a
Unit, including, but not lirnited to any Closing Statement, Bill of Sale, Affidavit, Bom,wer loan documents or
any other document considered necessary by Sergio Rok within his sole discretion to effectuate a sale of a
Unit; and
(v) entering into any and all agreements with the City of Miami or Miami Dade
County in connection with any grants, mortgages or agreements;
b. make any payment to Wachovia Bank, N.A., a national banking association
("Wachovia"), in the a*nount of any remaining net Seller's proceeds after the closing of a Unit with a
Purchaser, in order to pay down the $14,650,000.00 amount that was loaned to the Company by Wachovia;
and
c. -- - defend, negotiate, settle, and/or hire any law firm to defend, prosecute and/or
negotiate a settlement, in any manner whatsoever, in his sole discretion, any and all claims and/or lawsuits,
initiated by the Purchasers against the Company and/or Partnership, that may arise or relate to any of the
Contracts, or Units and/or the Building.
4. That the Patmership Agreement dated effective December 31, 1990, as am►eaded on
September 12, 1995 is still in effect governing the Partnership end is unmodified.
5. The undersigned Partners of the Partnership hereby approve the transfer of the Partnership
interest in the Partnership owned and held by the Personal Representative of the Estate of Natan Rok to the
Co -Trustees of the Residuary (Marital) Trust created under the Natan Roberto Rok Revocable Trust dated
October 29, 2001.
6. The undersigned Partners of the Partnership further certify that the foregoing actions are all
authorized by the provisions of the Partnership Agreement; that none of such actions are in conflict with any
provision thereof; and that all of said actions are hereby consented to and approved by the undersigned
Partners; and any document executed or any action taken by SERGiO ROK, es Managing Partner of the
Partnership and/or as Manager of the Company in connection with any of the foregoing, is or are hereby
ratified by all of the Partners signing below and that this Certificate can be relied upon by any title company
insuring title,. by Wac.hovia or any of its attorneys, or by any attorney representing the Partnership or the
Company.
The undersigned Partners of the Partnership hereby voluntarily and knowingly waive any and all
potential or actual conflict of interest in connection with the law firm of Evan R. Marbin & Associates, P.A.
preparing this Certificate on behalf of the Partnership or Company.
This Certificate of Authorization may be executed in any number of cowoterparts, each of which shall
constitute one and the same document and telefax signatures shall be deemed original signatures for purposes
of this Certificate.
BATED effective this j day of October, 2008.
BY: .. �! ti'� • viduallf a�fd asIto-Trustee of the
esiduary (Marital) Trust created under the Natan
Roberto Rok Revocable Trust dated October 29, 2001
BY:
ROSA ROK, as Co -Trustee of the
Residuary (Marital) Trust created under the Natan
Roberto Rok Revocable Trust dated October 29, 2001
BY:
EVELYN ROK MOSKOVITZ
Contracts, or Units and/or the BeiK eg
4. That the Partnership Agreement dated effective December 31, 1990, as amended on
September 12,1995 is still in effect governing the Partnership and is unmodified.
5. The undersigned Partners of the Partnership hereby approve the transfer of the Partnership
interest in the Partnership owned and held by the Pcrsortal Representative of the Estate of Natan Rok to the
Co Trustees of the Residuary (Marital) Trust created under the Natan Roberto Rok Revocable Trust dated
October 29, 2001.
6, The undersigned Partners of the Partnership hither certify that the foregoing actions are all
authorized by the provisions of the Partnership Agreement; that none of such actions are in conflict with any
provision thereof; and that all of said actions are hereby consented to and approved by the undersigned
Partners; and any document executed or any action. taken by SERGIO ROK, as Managing Partner of the
Partnership and/or as Manager of the Company in connection with any of the foregoing, is or are hereby
ratified by all of the Partners signing below and that this Certificate can be relied upon by any title company
insuring title, by Wachovia or any of its attorneys, or by any attorney representing the Partnership or the
Company.
The undersigned Partners of the Partnership hereby voluntarily and knowingly waive any and all
potential or actual conflict of interest in connection with the law firm of Evan R. Marbin & Associates, P.A.
preparing this Certificate on behalf of the Partnership or Company.
This Certificate of Authorization may be executed in any number of counterparts, each of which shall
constitute one and the same document and telefax signatures shall be deemed original signatures for purposes
of this Certificate.
DATED effective this ht day of October, 2003.
as o-'trustee of the
esiduary (Marital) Trust created under the Natan
Roberto Rok Revocable Trust dated October 29, 2001
BY:
ROSA ` ROK, as o-Trustee of the
Residuary (Marital) Trust created under the Natan
Roberto Rok Revocable 'Trust dated October 29, 2001
BY:
EVELYN ROK MOSKOVITZ
Contracts, or Units and/or the Building.
4. That the Partnership Agreement dated effective December 31, 1990, as amended on
September 12, 1995 is still in effect governing the Partnership and is unmodified.
5. The undersigned Partners of the Partnership hereby approve the transfer of the Partnership
interest in the Partnership owned and held by the Personal Representative of the Estate of Natan Rok to the
Co -Trustees of the Residuary. (Marital) Trust created under the Natan Roberto Rok Revocable Trust dated
October 29, 2001.
6. The undersigned Partners of the Partnership tbrther certify that the foregoing actions are all
authorized by the provisions of the Partnership Agreement; that none of such actions are in conflict with any
provision thereof; and that all of said actions are hereby consented to and approved by the undersigned
Partners; and any document executed or any action taken by SERGIO ROK, as Managing Partner of the
Partnership and/or as Manager of the Company in connection with any of the foregoing, is or are hereby
ratified by all of the Partners signing below and that this Certificate can be relied upon by any title company
insuring title, by Wachovia or any of its attorneys, or by any attorney representing the Partnership or the
Company.
The undersigned Partners of the Partnership hereby voluntarily and knowingly waive any and all
potential or actual conflict of interest in connection with the law final of Evan R. Marbin & Associates, P.A.
preparing this Certificate on behalf of the Partnership or Company.
This Certificate of Authorization may be executed in any number of counterparts, each of which shall
constitute one and the same document and telefax signatures shall be deemed original signatures for purposes
of this Certificate.
DATED effective this g day of October, 2008,
BY:
ARTNERS"
kid as -Trustee of the
esiduary (Marital) Trust created under the Natan
Roberto Rok Revocable Trust dated October 29, 2001
BY:
ROSA ROK, as Co -Trustee of the
Residuary (Marital) Trust created under the Natan
Roberto Rok Revocable Trust dated October 29, 2001
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dated July 20, 2000
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the Clara Morjain Revocable
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BLUMW MEND Z PARTNERSHIP
ieitt4Liik 4alateatr
Pint CeadmatinizneVaderatoof Andsortsedea_ am cmaya
try 40'4
�Q,glo
PACE OS/05
AGREEMENT NUMBER
NAME
DESCRIPTION
AGREEMENT DATE
START DATE
EXPIRY DATE
ATTESTED BY
ATTESTED DATE
RECEIVED DATE
AGREEMENT INFORMATION
15313
FLAGLER FIRST CONDOMINIUMS, LLC
AMENDMENT #2 TO THE AGREEMENT OF
"FFC" DATED: 12/23/2002 / DOCUMENT # 50208
2/8/2007
12/23/2006
7/30/2007
PAMELA BURNS
2/8/2007
2/16/2007
City of Miami
Legislation
Resolution
40#/53/3
City Hail
3500 Pan American
Drive
Miami. FL 33133
www.miamigov.com
File Number: 06-02177 Final Action Date:
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 2, IN
SUBSTANTIALLY THE ATTACHED FORM, TO THE AGREEMENT WITH
FLAGLER FIRST CONDOMINIUMS, LLC, RELATING TO THE REDEVELOPMENT
OF AN AFFORDABLE HOUSING CONDOMINIUM PROJECT KNOWN AS.
FLAGLER FIRST CONDOMINIUM, LOCATED AT 101 EAST FLAGLER STREET,
MIAMI, FLORIDA ("PROJECT"), PROVIDING AN EXTENSION OF THE DEADLINE
FOR THE RECEIPT OF CERTIFICATES OF OCCUPANCY AND THE SALE OF
EIGHTY-ONE (81) OF THE PROJECT'S RESIDENTIAL CONDOMINIUM UNITS,
UNTIL JUNE 30, 2007.
WHEREAS, the City of Miami ("City") entered into an Agreement ("Agreemenr) with Flagler First
Condominiums, LLC ("Developer"), relating to the redevelopment of an affordable housing
condominium project, known as Flagler First Condominium, located at 101 East Flagler Street, Miami,
Florida, to consist of no less than ninety (90) affordable residential condominium units and
approximately 7,000 square feet of retail space ("Project"); and
WHEREAS, in accordance with the Agreement the Developer was required to obtain certificates of
occupancy for the Project and sell eighty-one (81) of the Project's residential condominium units by
June 23, 2005; and
WHEREAS. the Developer experienced delays beyond its reasonable control in conducting
extensive structural testing as required by the City (including complete asbestos abatement), in
vacating tenants and in bringing the building's premises to current hurricane/wind Toad and fire code
requirements, which has resulted in a delay in the completion of the plans not initially contemplated by
the Developer; and
WHEREAS, for the aforesaid reasons the Developer requested an extension until December 23,
2006 for the receipt of Project certificates of occupancy and the sale of eighty-one (81) of the Project's
residential condominium units, and was granted the extension by Resolution No. 05-0371, adopted
June 9, 2005; and
WHEREAS, the Developer experienced unexpected further delays due to further structural work
required, hurricane preparations in 2005, sidewalk construction taking place on Flagler Street causing
significant delays in the construction, and the difficulties associated with this site without the use of a
staging area; and
WHEREAS, the Developer is requesting an additional extension until June 30, 2007, in order to
comply with the City's requirements, complete construction of the building, and obtain its Certificate of
Occupancy;
NOW, THEREFORE, BEAT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
dry of Miami
Page I of 2
Mated On: II/30/2006
Fife Number. 06-02177
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by
reference and incorporated as if fully set forth in this Section.
Section 2. The City Manageris authorized(1) to execute Amendment No. 2, in substantially the
attached form, to the Agreement with the Developer, relating to the Project, to provide an extension for
the receipt of Project certificates of occupancy, and the sale of eighty-one (81) of the Project's
residential condominium units (in accordance with stated requirements), until June 30, 2007.
Section 3. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor.{2}
APPROVED AS TO FORM AND CORRECTNESS:
9ORGE
CITY ATSONE
EZ
Footnotes:
(1} The herein authorization is further subject to compliance with all requirements that may be imposed
by the City Attomey, including but not limited to those prescribed by applicable City Charter and Code
provisions.
(2) If the Mayor does not sign this Resolution, It shall become effective at the end of ten calendar days
from the date it was passed and adopted. If the Mayorvetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
City gfMiami Pape? of Printed On: 11/3012006
City of Miami
Text File Report
/53/i
/City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
File ID: 06-02177
Enactment #: R-06-0733
Version: 1
Type: Resolution Status: Passed
Enactment Date: 12/14/06
Introduced: 11/27/06 Controlling Body: Office of the City
Clerk
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING
THE CITY MANAGER TO EXECUTE AMENDMENT NO. 2, IN SUBSTANTIALLY THE
ATTACHED FORM, TO THE AGREEMENT WITH FLAGLER FIRST CONDOMINIUMS, LLC,
RELATING TO THE REDEVELOPMENT OF AN AFFORDABLE HOUSING CONDOMINIUM
PROJECT KNOWN AS FLAGLER FIRST CONDOMINIUM, LOCATED AT 101 EAST FLAGLER
STREET, MIAMI, FLORIDA ("PROJECT"), PROVIDING AN EXTENSION OF THE DEADLINE
FOR THE RECEIPT OF CERTIFICATES OF OCCUPANCY AND THE SALE OF EIGHTY-ONE (81)
OF THE PROJECTS RESIDENTIAL CONDOMINIUM UNITS, UNTIL JUNE 30, 2007.
WHEREAS, the City of Miami ("City") entered into an Agreement ("Agreement") with Flagler First Condominiums, LLC
("Developer"), relating to the redevelopment of an affordable housing condominium project, known as Flagler First
Condominium, located at 101 East Flagler Street, Miami, Florida, to consist of no Tess than ninety (90) affordable residential
condominium units and approximately 7,000 square feet of retail space ("Project"); and
WHEREAS, in accordance with the Agreement the Developer was required to obtain certificates of occupancy for the
Project and sell eighty-one (81) of the Project's residential condominium units by June 23, 2005; and
WHEREAS, the Developer experienced delays beyond its reasonable control in conducting extensive structural testing
as required by the City (including complete asbestos abatement), in vacating tenants and in bringing the building's premises
to current hurricane/wind Toad and fire code requirements, which has resulted in a delay in the completion of the plans not
initially contemplated by the Developer; and
WHEREAS, for the aforesaid reasons the Developer requested an extension until December 23, 2006 for the receipt of
Project certificates of occupancy and the sale of eighty-one (81) of the Project's residential condominium units, and was
granted the extension by Resolution No. 05-0371, adopted June 9, 2005; and
WHEREAS, the Developer experienced unexpected further delays due 10 further structural work required, hurricane
preparations in 2005, sidewalk construction taking place on Flagler Street causing significant delays in the construction, and
the difficulties associated with this site without the use of a staging area; and
WHEREAS, the Developer is requesting an additional extension until June 30, 2007, in order to comply with the City's
requirements, complete construction of the building, and obtain its Certificate of Occupancy;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:
City of Miami Page 1
Printed on 122/2007
CITY ATTORNEY
City of Miami Page 2 Primed on 122/2007
AMENDMENT NO. 2 TO THE AGREEMENT
BETWEEN
CITY OF MIAMI
AND
FLAGLER FIRST CONDOMINIUMS. L.L.C.
This Amendment is entered into this e " day of / i�+� r -t< , 20015;
(the "Amendment") by and between the City of Miami, a municipal corporation of the State of
Florida (the "City") and Flagler First Condominiums, L.L.C., a Florida limited liability company,
having its offices at 48 East Flagler Street, Penthouse-5, Miami, Florida 33131 ("FFC"), joined
by Old Centrust Building Partnership, a Florida general partnership, for the purpose of
modifying that certain Agreement between the City and FFC dated December 23, 2002 (the
"Agreement").
WHEREAS, FFC has undertaken the redevelopment of an affordable housing
condominium project, known as Flagler First Condominium, located at 101 East Flagler Street,
Miami, Florida, to consist of no less than ninety (90) affordable residential condominium units
and approximately 7,000 square feet of retail space (the "Project"); and
WHEREAS, in connection therewith, the City allocated $1,800,000 for Project
redevelopment expenses (the "Grant"), as set forth more fully in the Agreement; and
WHEREAS, the Grant is subject to the terms and conditions contained in various Grant
documents, including, but not limited to, the Agreement, the Note and the Mortgage and Security
Agreement (the "Mortgage") executed in connection therewith.
WHEREAS, in accordancewith the Agreement, FFC is required to obtain the Project
certificates of occupancy and sell eighty-one (81) of the Project's residential condominium units
by June 23, 2005; and
WHEREAS, pursuant to City Commission Resolution 05-0371, adopted June 9, 2005
and Amendment No. 1 to the Agreement, dated June 15, 2005, the City and FFC agreed to an
extension, until December 23, 2006, for FFC to obtain the Project certificates of occupancy and
sell eighty-one (81) of the Project's residential condominium units. (Collectively, the Agreement,
the Note, the Mortgage and Amendment No. 1, and any and all other documents executed in
connection with the Grant, are hereinafter referred to as the "Grant Documents".) ; and
WHEREAS, FFC experienced delays in conducting extensive structural testing as
required by the City (including complete asbestos abatement), in vacating tenants and in bringing
the building's premises to current hurricane/wind load and fire code requirements, which has
resulted in a delay in the completion of the plans not initially contemplated; and
WHEREAS, FFC experienced unexpected further delays due to further structural work
required, hurricane preparations in 2005, sidewalk construction taking place on Flagler Street
it:Document 50208 (11)
1
causing significant delays in the construction, and the difficulties associated with this site
without the use of a staging area; and
WHEREAS, for the aforesaid reasons FFC has requested an extension until June 30,
2007 for the receipt of Project certificates of occupancy and the sale of eighty-one (81) of the
Project's residential condominium units; and
WHEREAS, the City and FFC desire and agree to amend the Agreement and the other
Grant Documents as hereinafter provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the City and FFC agree as follows:
1. Each and every of the above recitals is true and correct.
2. FFC acknowledges that the outstanding principal balance of the Grant is
$1,800,000.
3. The Grant Documents are hereinafter amended:
(a) To provide that FFC shall satisfy the following requirements on or before June 30,
2007: (i) obtain all required certificates of occupancy and/or certificates of completion (as
appropriate) for the Project, and (ii) sell no less than eighty-one (81) of the residential
condominiums in the Project in accordance with the requirements of Section 2502 of the Zoning
Ordinance of the City of Miami, Florida, provided that the unsold units as of May 26, 2005
(listed on Exhibit "B" attached) will not be priced in excess of two hundred thousand dollars
($200,000); and
(b) To provide that in the event that, on or before June 30, 2007, FFC has not: (i)
obtained all required certificates of occupancy and/or certificates of completion (as appropriate)
for the Project, and (ii) sold no less than eighty-one (81) of the residential condominiums in the
Project in accordance with the requirements of the Grant Documents, as amended hereby, then,
in such event: (x) interest shall be charged on the amount Grant funds disbursed and outstanding
for the period beginning on December 23, 2006 and continuing thereafter until both requirements
described above have been fully satisfied, (y) interest shall be charged at the Federal Reserve
Bank Prime Rate in effect on June 30, 2007, and (z) FFC shall pay such interest to the City
beginning on July 30, 2007 for the period from December 23, 2006 until June 30, 2007, and
every 30 days thereafter for the preceding 30 day period or any part thereof until both
requirements set forth above have been fully satisfied.
4. FFC represents, warrants and confirms to the City that: (i) the Agreement as
modified hereby is a valid obligation of FFC enforceable in accordance with its terms and is
binding upon FFC, and its successors, assigns and administrators without any claim, defense of
off -set or other sum due, pending or existing; (ii) all of the teens, covenants, conditions,
representations, warranties and agreements contained in the Mortgage are hereby ratified and
confirmed in all respects; (iii) certain obligations imposed on FFC under the Grant Documents
shall continue to be secured by the Mortgage without novation or interruption; and (iv) the
Mortgage is a valid obligation of Old Centrust Building Partnership enforceable in accordance
it:Document 50208 2
ATTEST:
Priscilla A. 'Yhompson, City Clerk
Date:
— a -L'-o?
APPROVED AS TO FORM AND
CO
APPROVED AS TO 1NS,NtE
REQUIREMENTS:
LeeAnn Bre
Date:
City of Miami,
of the State of F
By:
isk Management Director
/f0 %
ipal corporation
ordez, City Attorney f Pedro G. Heman• =z, City Manager
Dat-. Date: QA/'
Old Centrust Building Partnership, a Florida general partnership, joins in the execution of
this Amendment No 2. as the owner of the Property (referred to in the Agreement as the
"Property Owner") for the purpose of confirming its agreement to: (1) the amendments herein
provided, and, (2) continue to comply with all obligations and requirements of the Grant
Documents relating to the Property and the improvements thereon that constitute all or any part
of the Project.
Old Centrust Building Partnership represents, warrants and confirms to the City that: (i) all of
the terms, covenants, conditions, representations, warranties and agreements contained in the
Mortgage are hereby ratified and confirmed in all respects; (ii) certain obligations imposed on
FFC under the Grant Documents shall continue to be secured by the Mortgage without novation
or interruption; and (iii) the Mortgage is a valid obligation of Old Centrust Building Partnership
enforceable in accordance with its terms and is binding upon Old Centrust Building Partnership,
and its successors, assigns and administrators without any claim, defense of off -set or other sum
due, pending or existing.
Witnes
Print Name q� C-('WYS .��
IT-Flagler Amendment No. 2-09-13-06
it:Document 50208 (12) Flagler First -
Old Cent Building t ership,
a Floridan : j, a y� /. hip
By:
Da
gio 'T M. .gin Partner
4
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
Before me, thF unilfrsiigned authority, personally appeared, �'Qll'g (D atk
, as, 111gnM ' AY p&(' of F 141,94.r �trs t t..CG%- , to me well known to
be the person described in and who executed the foregoing instrument and who acknowledged to
and before me that he/she executed said instrument under oath, and for the purposes therein
expressed.
Witness my hand and official seal in the County
°LAIN
PRINTED, STAMPED OR TYPED
NAME OF NOTARY PUBLIC
Did Take An Oath
Did Not Take An Oath
)( Personally Known
Produced I.D.
Type of I.D. Produced:
e. 0)eo9
My Co mission Expires:
State 1 t afor-. ai.
Nlll �f111►0/
/ w :W/V
/
•,':$''i ; .:%'fi P& PUBLIC
‘111.7.. SPATA QF$ 'C+RIDA
o 4DD 436343 I.
;►►%Htt i1� tC3N
m day
STATE OF FLORIDA )
COUNTY OF MIAMI-DADS )
Before me, the undersigned authority, personally ppeared, kT
, as, IIWNt't>,' YN{4r*( of O & (1$1+ $i IS3tl.UY Dtq%. , to me well known to
be the person described in and who executed the foregoing instrument and who acknowledged to
and before me that he/she executed said instrument under oath, and for the purposes therein
expressed.
Witness my hand and official seal in the County and
.Ye/itid47 , 2007
.1-2Z6,0E
PRINTED, STAMPED OR TYPED
NAME OF NOTARY PUBLIC
Did Take An Oath
Did Not Take An Oath
)( Personally Known
Produced I.D.
Type of I.D. Produced:
JediU• t- too t'
My Commission Expires:
it:Documcnt 50208 (7)
resaid this *"' day of
-41113.7,1
NOf�; Y ' BL.IC
TE O+F•FILORII?}k
#DD 436343
.yak
i9°. fiN .
I/111111111
5
STATE OF FLORIDA)
COUNTY OF MIAMI-DADE )
Before rag, he uj} c�ersigned author,Ly, ersonall appeared, Peels 6. FIo'1'4- de'Z
, as, C..1D IV anc, 5G! of (.—d j of /�'!/ 4A- j , to me well known to
be the person described in and who executed the foregoing instrument and who acknowledged to
and before me that he/she executed said instrument under oath, and for the purposes therein
expressed.
Witness my hand and official seal in the County and State last aforesaid this day of
Few r.A. A , 200r
PRINTED, STAMPED OR TYP D
NAME OF NOTARY PUBLIC
Did Take An Oath
Did Not Take An Oath
)C Personally Known
Produced I.D.
Type of I.D. Produced:
Dece4 bee. 13, aO i a
My Commission Expires:
it:Document 50208 (11)
SIGNATURE OF NOTARY PUBLIC
STATE OF FLORIDA
NOTARY PUBLIC • STATE OF FLORIDA
,e"'"'''•. Edith Y. McCray
kti„,•. Commission # DD622331
•r Expires: DEC. 13, 2010
BONDED THRC ArLA.(nc 80 0,ING CO.,ttia
6
EXHIBIT B
Flagler First Condominiums
101 E. Flagler Street Miami, Florida 33131
Unsold units as of November 2006
Unit Numbers:
1. 306
2. 408
3. 409
4. 508
5. 509
6. 608
7. 609
8. 708
9. 709
10. 808
11. 908
12. 1008
FILEIth 05—PC13*?-
Dates 4/4J200S Requesting Departrnsnts £D
Commission Meeting DuteffIllrina District Impeded:
Type: ►14 Resoludon ❑ Ordinance 0 Emergency Ordinance 0 Dlecusslon Item
❑ Other
eubJeets
Papas of Items
A Resolution of the Miami City Commission, authorizing the city Manager toe oats Amendrae t
Number One (1) to the Agreement, in oubataadally tiro attached form, between the City of Miami end
Plaglor First Condominiums, LLC eadending until December 23, 2006 the deadline for the receipt ar
Project ooriificetes of occupancy and the sale of eighty-one (81) of the Project's residential
condominium unite.
Bsekgrouud Information:
On December 23, 2002, the City of Miami and Fiegtor First Condominiuina, LLC entered into as
Agreement relating to the redevelopment an afibrdablo !rousing project known as Floater First
Condominium. The Projoot will conakt of no leas than ninety (90) sflbadable housing limits (ibrty-Ave
(45) one bedroom/ono bath write and fortyiive(45) two bedroom/two bath unite) and approximately
7000 square feet email space. Certificates of occuparwy were to be teoeived and 81 roddential
Project units sold by June 23, 200S. The developer has experienced difticuldea beyond its control is
conducting extensive structural tearing, including oontplate asbestos abatement, in vacating tenants to
allow frr ai1 testing procedures, and to bringing the building's structure to coma hurricane/wind load
and fire requirements, all ofwilich has resulted in substantial delays in the progress of the Wolk Plan
and roauldng in the need for an extension to the time required to complete the project.
NO Is this item related to revenue?
NO Is We item an expenditure? if no, please identify funding source bellow.
Gonenrl Account No:
4tiecla/ Revenue Amount No
CIP PROW No:
NO le titles Item fended by Homeland Defenae/Nelghborbood improvement Donde?
Start Up Capital Coats
AMateaaace Coat:
Total Fiscal IImpeetr
pai� Arturo
t
CIP NIA Budget N/A
Chen 14' ""°Ni il
Risk Maaagam
Purchasing. N/A Dept. Dire
Page 1 of 2
Chief
City of Miami
Text File Report
City Hall
3500 Pan American Drive
Miami, FL 33133
www.ci.miami.11.us
File ID: 05-00377
Enactment #: R-05-0371
Version: 1
Type; Resolution Status: Mayor's Office for
Signature
Enactment Date: 6/9/05
Introduced: 4/19/05 Controlling Body: City Commission
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING
THE CITY MANAGER TO EXECUTE AMENDMENT NO. ONE, IN SUBSTANTIALLY THE
ATTACHED FORM, TO THE AGREEMENT WITH FLAGLER FIRST CONDOMINIUMS, LLC,
RELATING TO THE REDEVELOPMENT OF AN AFFORDABLE HOUSING CONDOMINIUM
PROJECT KNOWN AS FLAGLER FIRST CONDOMINIUM, LOCATED AT 101 EAST FLAGLER
STREET, MIAMI, FLORIDA ('PROJECT"), PROVIDING AN EXTENSION OF THE DEADLINE
FOR THE RECEIPT OF CERTIFICATES OF OCCUPANCY AND THE SALE OF EIGHTY-ONE (81)
OF THE PROJECTS RESIDENTIAL CONDOMINIUM UNITS, UNTIL DECEMBER 23, 2006.
WHEREAS, the City of Miami ("City") entered into an Agreement (the "Agreement") with Flagler First Condominiums,
LLC (the "Developer') relating to the redevelopment of an affordable housing condominium project, known as Flagler First
Condominium, located at 101 East Flagler Street, Miami, Florida, to consist of no less than ninety (90) affordable residential
condominium units and approximately 7,000 square feet of retail space (the "Project"); and
WHEREAS, in accordance with the Agreement the Developer is required to obtain certificates of occupancy for the
Project and sell eighty-one (81) of the Project's residential condominium units by June 23, 2005; and
WHEREAS, the Developer has experienced delays beyond its reasonable control in conducting extensive structural
testing as required by the City (including complete asbestos abatement), in vacating tenants and in bringing the building's
premises to current hurricane/wind load and fire code requirements, which has resulted in a delay in the completion of the
plans not initially contemplated by the Developer; and
WHEREAS, for the aforesaid reasons the Developer has requested an extension until December 23, 2006 for the receipt
of Project certificates of occupancy and the sale of eighty-one (81) of the Project's residential condominium units;
NOW, THEREFORE, BE iT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and
incorporated as if fully set forth in this Section.
Section 2. The City Manager is authorized (1) to execute Amendment No. One, in substantially the attached firm, to the
Agreement with the Developer, relating to the Project, to provide an extension for the receipt of certificates of occupancy
and the sale of eighty-one (81) of the Project's residential condominium units, until December 23, 2006.
City of Miami
Page 1 Printed on 61 15/2005
CITY ATTORNEY
City of Miami
Page 2 Printed on 6/15/2005
City of Miami
Master Report
Resolution R-05-0371
City Hall
3500 Pan American Drive
Miami, FL 33133
www.ci.miami.fl.us
File ID #: 05-00377 Enactment Date: 6/9/05
Version: 1
Controlling City Commission Status: Mayoes Office for
Body: Signature
Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING
THE CITY MANAGER TO EXECUTE AMENDMENT NO. ONE, IN SUBSTANTIALLY THE
ATTACHED FORM, TO THE AGREEMENT WITH FLAGLER FIRST CONDOMINIUMS, LLC,
RELATING TO THE REDEVELOPMENT OF AN AFFORDABLE HOUSING CONDOMINIUM PROJECT
KNOWN AS FLAGLER FIRST CONDOMINIUM, LOCATED AT 101 EAST FLAGLER STREET, MIAMI,
FLORIDA ("PROJECT"), PROVIDING AN EXTENSION OF THE DEADLINE FOR THE RECEIPT OF
CERTIFICATES OF OCCUPANCY AND THE SALE OF EIGHTY-ONE (81) OF THE PROJECTS
RESIDENTIAL CONDOMINIUM UNITS, UNTIL DECEMBER 23, 2006.
Reference:
Name: Flagler First Condominiums, LLC
Introduced: 4/19/05
Requester: Department of Cost: Final Action: 6/9/05
Economic
Development
Notes:
Sections:
Indexes:
Attachments: 05-00377-resolution.pdf, 05-00377-exhibitA.pdf, 05-00377exhibitB.pdf, 05-00377-exhibil.pdf,
05-00377-summary form.pdf
Action History
Ver. Acting Body
Date Action Sent To Due Date Returned Result
1 Office of the City 5/18/05 Reviewed and
Attorney Approved
1 City Commission 6/9/05 ADOPTED
This Matter was ADOPTED on the Consent Agenda.
Aye: 4 - Angel Gonzalez, Johnny L. Winton, Joe Sanchez and Tomas Regaledo
Absent 1 - Jeffery L. Allen
City of Miami
Page 1 Primed on 6/15/2005
City of Miami
Legislation
Resolution
City Hall
9500 Pan American
Drtva
Mlaml, FL 33133
aavw.cl.mlaml.fl.us
FUe Number: 05.00377 Final Action Dater
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. ONE, IN
SUBSTANTIALLY THE ATTACHED FORM, TO THE AGREEMENT WITH
FLAGLER FIRST CONDOMINIUMS, LLC, RELATING TO THE REDEVELOPMENT
OF AN AFFORDABLE HOUSING CONDOMINIUM PROJECT KNOWN AS
FLAGLER FIRST CONDOMINIUM, LOCATED AT 101 EAST FLAGLER STREET,
MIAMI, FLORIDA ("PROJECT'), PROVIDING AN EXTENSION OF THE DEADLINE
FOR THE RECEIPT OF CERTIFICATES OF OCCUPANCY AND THE SALE OF
EIGHTY-ONE (81) OF THE PROJECTS RESIDENTIAL CONDOMINIUM UNITS,
UNTIL DECEMBER 23, 2008,
WHEREAS, the City of Miami ("City') entered Into an Agreement (the "Agreement") with Flagler
First Condominiums, LLC (the 'Developer") relating to the redevelopment of an affordable housing
condominium project, known as Flagler First Condominium, located at 101 East Flagler Street, Miami,
Florida, to consist of no less than ninety (90) affordable residential condominium unls and
approximately 7,000 square feet of retail space (the "Project"); and
WHEREAS, in accordance with the Agreement the Developer is required to obtain certificates of
occupancy for the Project and sell eighty-one (81) of the Project's residential condominium units by
June 23, 2006; and
WHEREAS, the Developer has experienced delays beyond its reasonable control In conducting
extensive structural testing as required by the City (Including complete asbestos abatement), In
vacating tenants and In bringing. the building's premises to current hurricane/wind load and fire code
requirements, which has resulted In a delay in the oompletlon of the plans not initially contemplated by
the Developer, and
WHEREAS, for the aforesaid reasons the Developer has requested an extension until December
23, 2008 for the receipt of Project certificates of occupancy and the sale of eighty-one (81) of the
Projects residential condominium units;
NOW, THEREFORE, BE IT RESOLVED 8Y THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA;
Section 1. The recitals and findings contained In the Preamble to this Resolution are adopted by
reference and Incorporated as If fully set forth in this Section.
Section 2. The City Manager is authorized(1) to execute Amendment No. One, in substantially the
attached form, to the Agreement with the Developer, relating to the Project, to provide an extension for
the receipt of certificates of occupancy and the sale of eighty-one (81) of the Project's residential
condominium units, until December 23, 2008.
[Yy of Nod Pepe r a 2 Printed On: S4V700,1
Rio Number:: 05-00377
Section 3. Thle Resolution shall become effective Immediately upon Its adoption and signature of
the Mayor.(2)
APPROVED AS TO FORM AND CORRECTNESSt
A °MP
JCR c $ ERNANDEZ
CIT : • ' NEY
Footnotes:
{1} The herein authorization Is further subject to compllence with all requirements that may be
Imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter
and Code provisions.
(2) If the Mayor does not sign this Resolution, It shall become effective at the end of ten calendar days
from the date It was passed and adopted. If the Mayor vetoes this Resolution, It shall become
effective immediately upon override of the veto by the City Commission.
Cap eeMtaad Pago 2 OP
Primed Onr S/W100S
EXHIBIT A
Flagler First Condominiums
101 E. Flegler Street Miami, Florida 33131
Project Budget
Hard Construction Cost
$ 11,000,000
Construction Interest Expense
$ 730,000
Construction Loan Origination
Fee
$125,000
----
Accounting
$55,000
Appraisal
318,000
Architect Supervision
1175,000
Architect Fee Design
5309,600
Insurance
1150,000
Building Permit
$180,000
Engineering Fee
$236,000
Environmental Report and
Remedlatlon
$175,000
impact Fee
$140,000
inspection Fee
$55.000
Legal Fee-Partnarahlp
$1601000
Marketing and Advertisement
$96,000
Property Taxes
$76,000
Survey Including Awl -Bulks
$25,000
Title Insurance and Recording
$186,000
Utility Connection Fee
;138,000
DMCDC Consulting Fees
A 100,000
Contingency (Soft Cost)
(Reimbursabies)
$86,000
Developers Fee and Overhead
$895,000
L'xiating_Bullding Owned
$ 3,538,000
$ 18,593,600
f CXaC )257/
EXHIBIT B
Flagler First Condominiums
101 E. Flagler 8treat Miami, Florida 33131
Unsold Unite as of May 26, 2006
Unit Numbers:
1. 306
2. 408
3. 409
4. 508
5. 509
8. 608
7. 009
8. 708
9. 709
10.808
11.008
12.1008
AMENDMENT NO. 1 TO THE AGREEMENT
BETWEEN
THE
CITY OF MIAMI
AND
FLAGLER FIRST CONDOMINIUMS. L.L.C.
This Amendment is entered into this / .1— day of aVlil , 2005
(the "Amendment") by and between the City of Miami, a municipal corporation of the State of
Florida (the "City") and Flagler First Condominiums, L.L.C., a Florida limited liability company,
having its offices at 48 East Flagler Street, Penthouse-5, Miami, Florida 33131 ("FFC"), joined
by Old Centrust Building Partnership, a Florida general partnership, for the purpose of
modifying that certain Agreement between the City and FFC dated December 23, 2002 (the
"Agreement").
WHEREAS, on December 23, 2002, the City and FFC entered into the Agreement
relating to the redevelopment of an affordable housing condominium project, known as Flagler
First Condominium, located at 101 East Flagler Street, Miami, Florida, to consist of no less than
ninety (90) affordable residential condominium units and approximately 7,000 square feet of
retail space (the "Project"); and
WHEREAS, in accordance with the Agreement, FFC is required to obtain the Project
certificates of occupancy and sell eighty-one (81) of the Project's residential condominium units
by June 23, 2005; and
WHEREAS, FFC has experienced delays beyond its reasonable control in conducting
structural testing as required by the City (including complete asbestos abatement), in vacating
tenants, and in bringing the building's premises to current hurricane/wind load and fire code
requirements, which has resulted in a delay in the completion of the plans not initially
contemplated; and
WHEREAS, for the aforesaid reasons FFC has requested an extension until December
23, 2006 for the receipt of Project certificates of occupancy and the sale of eighty-one (81) of the
Project's residential condominium units; and
WHEREAS, on June 9, 2005, the City of Miami City Commission approved the
extension of time until December 23, 2006 requested by FFC; and
WHEREAS, the City and FFC desire and agree to amend the Agreement as hereinafter
provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the City and FFC agree as follows:
1. Each and every of the above recitals is true and correct.
2. FFC acknowledges that the outstanding principal balance on the Grant is
$1,543,300.98.
3. The Grant Documents are hereinafter amended to provide that FFC shall complete
the following no later than December 23, 2006, subject to the provisions of paragraph 4 below:
(a) obtain all required certificates of occupancy and/or certificates of completion (as appropriate)
for the Project, (b) sell no less than eighty-one (81) of the residential condominiums in the
Project in accordance with the requirements of Section 2502 of the Zoning Ordinance of the City
of Miami, Florida, provided that the unsold units as of May 26, 2005 (listed on Exhibit "B"
attached) will not be priced in excess of two hundred thousand dollars ($200,000).
4. The extension of time provided in paragraph 3 above is conditioned upon FFC
providing the following documents to the City no later than August 15, 2005:
a) Copy of approved construction building permit;
b) Copy of fully executed contract with general contractor; and
c) Copy of fully executed construction loan agreement evidencing adequate funds to
complete the project in accordance with the budget attached hereto as Exhibit "A" .
Failure to provide any of the above -described documents to the City on or before August 15,
2005 shall be deemed an Event of Default with no right to cure. In such event, this Agreement
shall be deemed automatically terminated effective August 15, 2005, and FFC shall repay to the
City the full amount of Funds disbursed to FFC pursuant to this Agreement.
5. FFC represents, warrants and confirms to the City that: (i) the Agreement as modified
hereby is a valid obligation of FFC enforceable in accordance with its terms and is binding upon
FFC, and its successors, assigns and administrators without any claim, defense of off -set or other
sum due, pending or existing; (ii) all of the terms, covenants, conditions, representations,
warranties and agreements contained in the Mortgage are hereby ratified and confirmed in all
respects; (iii) certain obligations imposed on FFC under the Grant Documents shall continue to
be secured by the Mortgage without novation or interruption; and (iv) the Mortgage is a valid
obligation of Old Centrvst Building Partnership enforceable in accordance with its terms and is
binding upon Old Centrist Building Partnership, and its successors, assigns and administrators
without any claim, defense of off -set or other sum due, pending or existing.
6. Except as modified herein, all terms and conditions of the Grant Documents shall
remain in full force and effect.
7. If any provision of this Amendment conflicts with any applicable law or regulation,
only the conflicting provision shall be deemed by the parties hereto to be modified, or to be
deleted if modification is inappropriate, to cause the provision to be consistent with the law or
regulation. However, the obligations under this Amendment shall continue and all other
provisions of this Amendment shall remain in full force and effect.
8. This Amendment shall be construed, interpreted, enforced and governed by and in
accordance with the laws of the State of Florida.
9. This Amendment sets forth the entire agreement between the parties and supersedes all
prior and contemporaneous negotiations, understandings and agreements, written or oral between
the parties relating to the subject matter herein.
10. All capitalized terms used but not defined herein shall have their respective meanings
set forth in the Loan Documents.
11. Waiver of Jury Trial. Neither FFC, nor any assignee, successor, heir or personal
representative of FFC, nor any other person or entity, shall seek a jury trial in any lawsuit,
proceeding, counterclaim or any other litigation procedure based upon or arising out of any of the
Grant Documents and/or this Amendment, or the dealings or the relationship between or among
such persons or entities, or any of them. Neither FFC, nor any other person or entity will seek to
consolidate any such action in which a jury trial has been waived with any other action. The
provisions of this paragraph have been fully discussed by the parties hereto, and the provisions
hereof shall be subject to no exceptions. No party to this Amendment has in any manner agreed
with or represented to any other party that the provisions of this paragraph will not be fully
enforced in all instances.
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to
the Agreement on the day and year first above written.
A 1'I'EST:
APPROVED AS TO FORM
COSS:
4
Flagler First Condominiums, L.L.C.,
a Florida limited liability company
By: Old Centrist Building P
Florida gene `' partnership
Member
City of Miami, a municipal corporation
of the State of Florida
By:
APPROVED AS TO INSURANCE
REQUIREMENTS:
By:
iv/Dania F. Carrillo
Risk Management Administrator
Old Centrust Building Partnership, a Florida general partnership, joins in the execution of
this Amendment as the owner of the Property (referred to in the Agreement as the "Property
Owner") for the purpose of confirming its agreement to: (1) the amendments herein provided,
and, (2) continue to comply with all obligations and requirements of the Grant Documents
relating to the Property and the improvements thereon that constitute all or any part of the
Project.
Old Centrust Building Partnership represents, warrants and confirms to the City that: (i) all of
the terms, covenants, conditions, representations, warranties and agreements contained in the
Mortgage are hereby ratified and confirmed in all respects; (ii) certain obligations imposed on
FFC under the Grant Documents shall continue to be secured by the Mortgage without novation
or interruption; and (iii) the Mortgage is a valid obligation of Old Centrust Building Partnership
enforceable in accordance with its terms and is binding upon Old Centrust Building Partnership,
and its successors, assigns and administrators without any claim, defense of off -set or other sum
due, pending or existing.
Print
t Name:
IT-Flagler First-Amendment-04-22-05
5
Old Cen Building : ershiip,
a Florid /neral pa c p
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
Before me, the undeed authority, ersonall,Y�aPpea_re/D /� ��`
as, /1�i� 7� f1gNAVA of l *VT- i / * r e well known to be
the person described in and who executed the foregoing instrumen(and who acknowledged to and before
me that he/she executed said instrument under oath, and for the purposes therein expressed.
/� imess my hand and official seal in the County and
f 2005.
eas:Ve ZC SoL
PRINTED, STAMPED OR TYPED
NAME OF NcIAMaiI)}jBLIC
DEL ,S
$Difi ,� oatfl
�o�y '.
_ *Pro'afibeii,a iO `"
TYPe�}f ,?. 11E6903
; o
c r " piN
My ComV0``���
%hill111111H01\i
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
ast aforesaid this %1'7— day of
TU' •FNO ARYPU: IC
E OF LORIDA
Before me, the undersigned authority, personally appeared,
as, of , to me well known to be
the person described in and who executed the foregoing instrument and who acknowledged to and before
me that he/she executed said instrument under oath, and for the purposes therein expressed.
Witness my hand and official seal in the County and State last aforesaid this day of
2005.
PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC
NAME OF NOTARY PUBLIC STATE OF FLORIDA
Did Take An Oath
Did Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
STATE OF FLORIDA )
6
COUNTY OF MIAMI-DADE )
Before me, the undersigned authority, personally appeared,
, as, of , to me well known to be
the person described in and who executed the foregoing instrument and who acknowledged to and before
me that he/she executed said instrument under oath, and for the purposes therein expressed.
Witness my hand and official seal in the County and State last aforesaid this day of
, 2005.
PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC
NAME OF NOTARY PUBLIC STATE OF FLORIDA
Did Take An Oath
Did Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
EXHIBIT A
Flagler First Condominiums
101 E. Flagler Street Miami, Florida 33131
Project Budget
Hard Construction Cost
$ 11,000,000
Construction Interest Expense
$ 730,000
Construction Loan Origination
Fee
$125,000
Accounting
$55,000
Appraisal
$18,000
Architect Supervision
$175,000
Architect Fee Design
$309,500
Insurance
$150,000
Building Permit
$160,000
Engineering Fee
$235,000
Environmental Report and
Remediation
$175,000
Impact Fee
$140,000
Inspection Fee
$55,000
Legal Fee -Partnership
$150,000
Marketing and Advertisement
$95,000
Property Taxes
$75,000
Survey Including As-Builts
$25,000
Title Insurance and Recording
$165,000
Utility Connection Fee
$138,000
DMCDC Consulting Fees
$ 100,000
Contingency (Soft Cost)
(Reimbursables)
$85,000
Developers Fee and Overhead
$895,000
Existing Building Owned
$ 3,538,000
$ 18,593,500
EXHIBIT B
Flagler First Condominiums
101 E. Flagler Street Miami, Florida 33131
Unsold Units as of May 26, 2005
Unit Numbers:
1. 306
2. 408
3. 409
4. 508
5. 509
6. 608
7. 609
8. 708
9. 709
10.808
11.908
12.1008
AGREEMENT
This Agreement is dated this 2 day of
f{'htX r , 2002, by and
between the City of Miami, a municipal corporation of the State of Florida (hereinafter the
"City"), and Flagler First Condominiums, L.L.C., a Florida limited liability company (hereinafter
referred to as the `.`FFC").
AMOUNT: $1.800,000.00
RESOLUTION:
PROJECT NAME:
PROJECT TYPE:
TERM:
PROPERTY ADDRESS:
EXHIBITS ATTACHED:
Resolution 01-1074, adopted October 11, 2001. as amended
by Resolution 02-09, adopted January 10. 2002: and as
amended by Resolution 02-1231, adopted November 19.,
2002
Flagler First Condominium Project
Homeownership/New Construction
See Section 1.8
101 East Flagler Street,
Miami, Florida 33125
Exhibit A Work Plan and Project Schedule
Exhibit B Legal Description
Exhibit C Budget
Exhibit D Disbursement Procedures
Exhibit E Form of Opinion of Counsel
RECITALS
WHEREAS, pursuant to Resolution No. 01-1074, passed and adopted by the City
Commission on October 11, 2001, Kapustin Corporation and a joint partnership were allocated
an amount not to exceed $900,000 from the Affordable Housing Trust Fund for the
redevelopment of an Affordable housing condominium project known as Flagler First
Condominiums, located at 101 East Flagler Street, Miami, Florida, subject to certain conditions;
and
WHEREAS, pursuant to Motion No. 01-1075, passed and adopted by the City
Commission on October 11, 2001, Kapustin Corporation and a joint partnership were also
allocated $900,000 from the City's Strategic Initiative Reserve Funds for such purpose; and
WHEREAS, pursuant to Resolution No.02-1231, passed and adopted by the City
Commission on November 19, 2002, such funds in an amount not to exceed $1,800,000
previously allocated Kapustin Corporation and a joint partnership for the redevelopment of the
Flagler First Condominiums, were re -allocated to FFC; and
WHEREAS, the City and FFC intend and agree that the allocation of such funds shall be
subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and obligations herein
contained, and subject to the terms and conditions hereinaiiq stated, the parties hereto
understand and agree as follows:
ARTICLE I
DEFINITIONS
The City and FFC hereby agree that the capitalized terms used herein shall have the
meanings set forth below unless the context requires otherwise:
1.1 Affordable:
1.2 Contract Records:
A Project that satisfies the requirements set forth in
Section 2502 of the Zoning Ordinance of the City of
Miami, Florida.
Any and all books, records, documents, information,
data, papers, letters, materials, electronic storage
data and media, whether written, printed,
computerized, electronic or electrical, however
collected or preserved which is or was produced,
developed, maintained, completed, received or
compiled by or at the direction of FFC or any
subcontractor of FFC in carrying out the duties and
obligations required by the terms of this Agreement,
including, but not limited to, financial books and
records, ledgers;, drawings, maps, pamphlets,
designs, electronic tapes, computer drives and
diskettes or surveys.
1.3 Project: A project consisting of no .less than ninety (90)
Affordable residential condominium units of the
Flagler First Condominium, to be developed and
constructed on the Property in accordance with
Work Plan and Project Schedule and the plans and
specifications, attached hereto and incorporated
herein as Exhibit "A.
1.4 Grant/Funds:
1.5 Property:
The grant in an amount noC tr exceed $1,800,000.00
from the City to FFC for the construction of the
Project in accordance with the Work Plan.
The real property located 101 East Flagler Street,
Miami, Florida, on which the Project is being
constructed, as legally described in Exhibit "B",
attached hereto and incorporated herein, provided,
however, that after condominiumization of the
1.6 Grant Documents:
1.7 Legal Requirements:
1.8 Term:
Property, all commercial components of the
Property shall be released from the City's Mortgage
(as hereinafter defined) as described in Section 2.1
hereof, and thereafter term "Property" as used in this
Agreement and any other Grant Documents shall be
deemed to refer to the residential components of the
Property only.
This Agreement and all other documents that may
now or hereafter evidence or secure FFC's
obligations hereunder, together with other
documents executed in connection therewith or
provided by FFC to the City in connection therewith
or herewith, and all amendments, extensions and
renewals to any of the foregoing.
Any requirements imposed by the City and all local,
state and federal requirements relating and/or
pertaining to the development and/or construction
of the Project.
The period commencing on the Effective Date and
ending fifteen (15) days after FFC's sale, in
accordance with the terms hereof, of the last of the
residential condominium units in the Project, but in
no event later than thirty (30) months from the
Effective Date hereof.
1.9 Effective Date: The date on which the City Clerk affixes an
attestation to this Agreement.
ARTICLE II
USE OF FUNDS
Subject to the terns and conditions set forth herein anci.FFC's compliance with all of its
obligations hereunder, the City hereby agrees to make the Funds available to FFC to be used for
the purpose and disbursed in the manner hereinafter provided.
2.1 Use of Funds. The Flagler First Condominium Project is a mixed use
residential/commercial redevelopment of approximately 100,000 square feet of unused office
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space into no less than ninety (90) Affordable residential condominium units and approximately
7,000 square feet of retail space.
The Funds shall be used for the redevelopment of the Affordable residential
condominium units of the Flagler First Condominium, in accordance with the Work Plan
attached hereto as Exhibit_A and the Budget attached hereto as Exhibit C. The Project shall
contain approximately forty-five (45) one bedroom/one bath units and approximately forty-five
two bedroom/ two bath units.
The Property Owner (as hereinafter defined) intends to codominiumize the Property and
thereafter to contribute the residential portions of the Property to FFC. Upon (1) the completion
of the condominiumization of the Property, (2) the recording of the deed of the condominium
property into FFC, (3) FFC's assumption of the obligations and liabilities of the mortgagor under
the City's Mortgage (as hereinafter defined), and (4) the release of the residential portions of the
Property from the lien of the existing first mortgage held by Union Planters Bank upon the
Closing of the construction loan from Wachovia Bank, National Association, the City will
execute a partial release of mortgage so as torelease all commercial components of the Property
from its Mortgage and release the Property Owner from its obligations under this Agreement and
the Mortgage.
FFC shall:
(i) commence construction of the Project, to the. satisfaction of the City in its
sole judgment, within thirty (30) days from the Effective Date hereof,
(ii) obtain all required certificates of occupancy for the Project, within thirty
(30) months from the Effective Date, and
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(iii) sell no less than eighty-one (81) of the residential condominiums in the
Project in accordance with the requirements of Section 2502 of the Zoning
Ordinance of the City of Miami, Florida, within thirty (30) months from
the Effective Date.
Upon the sale of each condominium in the Project in accordance with the terms of this
Agreement, the City shall release such condominium from the lien of the Mortgage executed
simultaneously herewith by Old Centrust Building Partnership, a Florida general partnership, as
mortgagor, in favor of the City, as mortgagee (the "Mortgage") to secure FFC's obligations
hereunder.
2.2 Disbursement. The Funds shall be disbursed in accordance with the Budget
attached hereto and incorporated herein as Exhibit "C" and in the manner set forth in the
Disbursement Procedures attached hereto and incorporated herein as Exhibit "D".
2.-3 City's Representative. The City may designate,a representative to represent the
City, at its sole cost and expense, in connection with, and to interface and work with FFC on, all
phases of the Work Program.
2.4 Repayment Obligation. Notwithstanding anything contained herein to the
contrary, upon the occurrence of an Event of Default as defined in Article VI below and the
continuance thereof beyond any applicable notice and cure periods provided herein, FFC shall
reimburse the City for the full amount of Funds,disbursed pursuant to this Agreement. Upon
demand by the City, the amount of the Funds actually disbursed shall be immediately due and
payable.
ARTICLE III
CONDITIONS PRECEDENT TO FUNDING
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The City shall not be obligated to disburse the Funds unless and until the City has
received the following:
3.1 Title Insurance. A current title insurance policy insuring the City's interest in the
Property, issued by a title insurance company acceptable to the City, together with copies
of all instruments which appear as exceptions therein. The title policy is to be issued
without exceptions, except for those exceptions permitted by the City, and shall include
such affirmative coverage as the City shall require.
3.2 Survey. An original current survey of the Property made by a registered surveyor
certified to the City, and satisfactory to the City and the title company.
3.3 Zoning. Evidence that the Property and the proposed improvements comply with
all applicable zoning ordinances.
3.4 Corporate Documents.
(a) The certificate of incorporation or partnership agreement, or their
equivalent, as appropriate, and a good standing certificate for FFC and any
other owner of the Property (the "Property Owner"), certified by the
appropriate governmental authority.
(b) Bylaws, resolutions, and incumbency certificates, or, in the case of a
partnership, their equivalent, for FFC ansk the Property Owner, certified by
the Corporate Secretary or other authorized signer, authorizing the
consummation of the transactions contemplated hereby, all satisfactory to
the City.
3.5 Insurance Policies.
(a) Comprehensive General Liability and umbrella liability coverage in an
amount not less than S500,000.00 per occurrence and S1,000,000.00
annual aggregate, protecting the City and FFC against liability incidental
to the use of, or resulting from an accident occurring on or about, the
Property, including coverage for: (i) fire, explosion, collapse and
underground hazards, compl`etpd operations and independent contractors,
and (ii) automobile liability for all owned vehicles as well as coverage for
non -owned and hired automobiles.
(b) Workers' compensation insurance as required by the laws of the State of
Florida.
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(c) Employer's liability insurance protecting FFC against liability resulting
from any accident or liability arising from or relating to any construction
on the Property.
(d) A builder's risk policy, using a completed value form in an amount not less
than one hundred percent of the full insurable replacement cost of the
Project, insuring the Project from such perils and other hazards as the City
may reasonably require, including without limitation, fire, extended
coverage, vandalism and malicious mischief, and collapse.
(e) Federal flood insurance in such an amount as is satisfactory to the City.
(f) A bid, payment and/or performance bond in such form as may be required
by the City.
All such insurance shall insure the City as an additional insured, with a loss
payable clause in favor of the City. FFC shall be required to obtain and furnish
evidence of any other insurance coverage the City may reasonably require during
the Term of this Agreement. All such policies shall provide the City with
mandatory written notice of cancellation or material change from the insurer not
less than thirty (30) days prior to any such cancellation or material change, and all
such policies shall be written by insurance companies satisfactory to the City.
Failure of FFC to submit all required evidence of the specified insurance
coverage, except for Comprehensive General -,Liability and umbrella liability
coverage, fourteen (14) calendar days prior to the start of construction shall delay
disbursement of the Funds.
3.6 Operative Documents. This Agreement and all other documents required
hereunder, duly and lawfully executed.
3.7 Appraisal. A current appraisal of the Property made by a member of the
American Institute of Real Estate Appraisers.
3.8 List of Subcontractors. A list of all of FFC's subcontractors available as of the
date of execution of this Agreement, and copies of all contracts in excess of $10,000 for
the performance of services or the supply of materials in connection with the Project.
3.9 Commitments for Construction Financing. Evidence of firm commitments for
construction financing from other sources.
3.10 Evaluation of Project Costs. The evaluation of the Project's costs in excess of
$900,000 as prepared by an independent engineer, engaged by FFC to provide such
evaluation.
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3.11 First Source Hiring Agreement (Intentionally deleted.)
3.12 Historic Preservation Review. If applicable, all requirements of the State of
Florida Historic Preservation Department shall have been met prior to the disbursement
of any Funds hereunder.
3.13 Environmental Report. FFC shall submit all environmental information
requested by the City with respect to the Project including, but not limited to, Phase I and
Phase II Environmental Assessment Reports and any required environmental approvals,
notices or clearances.
3.14 Audit Report. FFC shall submit to the City such audit reports as are required by
section 4.14 hereof.
3.15 Personnel Policies and Administrative Procedure Manuals. If so requested by the
City, FFC shall submit detailed documents describing FFC's internal corporate
organizational structure, property management and procurement policies and procedures,
personnel management, accounting policies and procedures, etc.
3.16 Certificate Regarding Lobbying. Such Certificate Regarding Lobbying as may be
requested by the City.
3.17 Opinion of Counsel. An opinion of counsel satisfactory to the City which covers
the valid creation and good standing of FFC and the Property Owner, the due execution
and enforceability of this Agreement and any other Grant Documents, the absence of
litigation which could have a material adverse effect on the Project, the absence of a
default under the terms of any other documents to which FFC and/or the Property Owner
are parties , and such other matters as may be reasonably required by the City, in the form
attached hereto as Exhibit E.
3.18 Certificate Regarding Debarment, Suspension, and Other Responsibility Matters.
Such Certificate regarding debarment, suspension and other responsibility matters as may
be requested by the City.
3.19 Public Entity Crime Affidavit. Such Public Entity Crime Affidavit as may be
required by the City.
3.2U Project Description. Two copies"of a complete and detailed description of the
Project. No substantial changes therefrom shall be made to the Project without the City's
prior written consent.
3.21 All other documents required by the City and/or its designated representative.
ARTICLE IV
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FFC'S OBLIGATIONS
4.1 Scope of Work. FFC shall perform the Work Plan as set forth herein and on
Exhibit "A" attached. The Work Plan shall be fully completed fifteen (15) days after FFC's sale,
in accordance with the terms hereof, of the last of the residential condominium units in the
Project, but in no event later than thirty (30) months from the Effective Date hereof (the
"Completion Date").
4.2 Reporting Obligations. FFC shall submit to the City all reports as described
below, and all other reports that the City may reasonably require, in such form, manner, and
frequency as the City may reasonably require to monitor the progress of the Project and FFC's
performance and compliance with this Agreement and all Legal Requirements.
FFC shall submit, as required, the following.
(a)
Progress Reports. FFC shall submit status reports and projected
completion dates to describe the progress made by FFC in
achieving each of the objective -,identified in Exhibit "A". such
reports shall be provided to the City on a monthly basis throughout
the Term of this Agreement.
(b) Affirmative Action Plan. FFC shall report to the City si.^h
information relative to the equality of employment opportunities as
may be requested by the City.
(c) (Intentionally deleted.)
(d) List of Subcontractors. A list of all of FFC's subcontractors, and
copies of all contracts in excess of $10,000 for the performance of
services or the" supply of materials in connection with the Project.
4.3 Retention of Records. For a period of three (3) years following the last
disbursement of the funds hereunder, the City shall have the right to review and audit the records
• of FFC pertaining to the Funds. FFC shall retain all Contract Records for three (3) years
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following the date of the last disbursement hereunder (hereinafter referred to as "Retention
Period") subject to the limitations set forth below:
(a) If the City or FFC has received or given notice of any kind indicating any
threatened or pending litigation, claim or audit arising out of the activities relating to the
Project or the Work Plan or under the terms of this Agreement, the Retention Period shall
be extended until such time as the threatened or pending litigation, claim or audit is, in
the sole and absolute discretion of the City, fully, completely and finally resolved.
(b)
FFC shall allow the City or any person authorized by the City full access
to and the right to examine any of the Contract Records during the required Retention
Period.
(c) FFC shall notify the City in writing, both during the pendency of this
Agreement and after its expiration or termination, as part of the final closeout procedure,
of the address where all Contract Records will be retaine41.
(d) FFC shall obtain the prior written consent of the City to dispose of any
Contract Records within one (1) year after the expiration of the Retention Period.
4.4 Provision of Records. All of the Contract Records are subject to the provisions of
Chapter 119, Florida Statutes, commonly referred. to as the "Public Records Law". FFC shall
provide to the City, upon request, copies of all Contract Records, which shall become the
property of the City without restriction, reservation, or limitation on their use and shall be made
available by FFC upon request by the City.
If FFC receives funds from, or is under regulatory control of, other governmental
agencies and those agencies issue monitoring reports, regulatory examinations, or other similar
reports, FFC shall provide a copy of each such rcport and any follow-up communications and
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•
reports to the City immediately upon such issuance, unless such disclosure is a violation of any
agreement with, or rule of, any such agency.
4.5 Prior Approval. FFC and/or the Property Owner, as applicable, shall obtain the
City's prior written approval prior to undertaking any of the following with respect to the Project
_ and/or the Property:
(a) The sale, assignment, pledge, transfer, hypothecation or other
encumbrance or disposition of any proprietary or beneficial interest in FFC or the_Property, or
any change in the operating control of FFC, which shall require the prior approval of the City
Commission, (excluding, however, (i) a sale of the residential condominium units in the Project
in accordance with the provisions of this Agreement, (ii) a lease of any portion of the commercial
component of the Property (the first floor and a portion of second floor of the building), and (iii)
any financing of the Property and/or the Project previously disclosed in writing to the City).
(b) The disposal of any Contract Records.
4.6 Monitoring. FFC shall permit the City and other persons duly authorized by the
City to inspect, during normal business hours; all Contract Records, facilities, goods, and
activities of FFC that are in any way connected to the activities undertaken pursuant to the terms
of this Agreement, and/or to interview any clients, employees, subcontractors, or assignees of
FFC. Following such inspection or interviews, the City will deliver to FFC a report of its
finding?. FFC will rectify all deficiencies cited by the City within the period of time specified in
the report, or provide the City with a reasonable justification for not correcting the deficiencies.
The City will determine, in its sole and absolute discretion, whether or not FFC's justification is
acceptable.
4.7 Conflict of Interest.
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A. FFC is aware of the conflict of interest laws of the City of Miami (Code of the
City of Miami, Florida, Chapter 2, Article V), of Miami -Dade County, Florida (Code of Miami -
Dade County, Florida, Section 2-11.1), and of the State of Florida (as set forth in Florida
Statutes) and agrees that it will fully comply in all respects with the terms thereof and any future
amendments. _
B. FFC covenants that no person or entity under its employ, presently exercising any
functions or responsibilities in connection with this Agreement, has any personal financial
interests, direct or indirect, with the City. FFC further covenants that, in the performance of this
Agreement, no person or entity having such conflicting interest shall be utilized in respect to the
Work Plan or services provided hereunder. Any such conflict of interest(s) on the part of FFC, its
employees or associated persons or entities must be disclosed to the City.
C. FFC shall disclose any possible conflicts of interest or apparent improprieties of
any party under or in connection with the Legal Requirembnts, including the standards for
procurement.
D. FFC shall make any such disclosure to the City in writing and immediately upon
FFC's discovery of such possible conflict. The City's determination regarding the possible
conflict of interest shall be binding on all parties.
E. No employee, agent, consultant, elected official or appointed official of the City,
exercising any functions or responsibilities in connection with this Agreement, or who is in a
position to participate in the decision -making process or gain inside information regarding any
activities hereunder, has any personal financial interest, direct or indirect, in this Agreement, the
proceeds hereunder, the Project or FFC, either for themselves or for those with whom they have
Family or business ties, during their tenure or for one year thereafter.
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4.8 Related Parties. FFC shall report to the City the name, purpose for and any other
relevant information in connection with any related -party transaction. The term "related party
transaction" includes, but is not limited to, a transaction or relationship between FFC and a for -
profit or nonprofit subsidiary or affiliate organization, an organization with an overlapping board
of directors, and an organization for which FFC is responsible for appointing memberships. FFC
shall report this information to the City upon forming the relationship, or if already formed, shall
report such relationship prior to or simultaneously with the execution of this Agreement. Any
supplemental information shall be promptly reported to the City no later than in the next required
Progress Report, as described above.
4.9 Publicity and Advertisements. FFC shall ensure that all publicity and
advertisements prepared and released by FFC, such as pamphlets and news releases, related to
activities funded by this Agreement, and all events carried out to publicize the accomplishments
of any activities funded by this Agreement, recognize the City al one of its funding sources.
FFC shall make a positive effort to procure supplies, equipment, construction, or services
to fulfill this Agreement from minority and women owned businesses, and to provide these
sources the maximum feasible opportunity to compete for subcontracts to be performed pursuant
to this Agreement. To the maximum extent feasible, these businesses shall be located in or
owned by residents of the community development areas designated by the City.
4.10 Additional Funding. FFC shall notify the City of any additional funding received
for any activity described in this Agreement. Such notification shall be in writing and received
by the City within thirty (30) days of FFC's notification by the funding source.
4.11 Acknowledgement. During the Tema of this Agreement, FFC shall furnish signage
identifying the Project and shall acknowledge the contribution of the City by incorporating the
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seal of the City and the names of the City commissioners and officials in all documents,
literature, pamphlets, advertisements, and signage, permanent or otherwise. All such
acknowledgments shall be in a form acceptable to the City.
4.12 Disposition of Propertv. FFC and/or the Property Owner, as applicable, shall
_ obtain the prior written approval of the City for the disposition of the whole or any portion of the
Property, other than: (a) as disclosed to the City in writing prior to the execution hereof, and (b)
the sale of the residential condominium units in the Project in accordance with the requirements
of Section 2502 of the Zoning Ordinance of the City of Miami, Florida. .
4.13 Subcontracts and Assignments.
4.13.1. FFC shall ensure that all subcontracts and assignments:
(a) Identify the full, correct, and legal name of all parties;
(b) Describe the activities to be performed;
(c) Present a complete and accurate breakdo\vn of its price component;
(d) Incorporate a provision requiring compliance with all applicable regulatory
requirements, all applicable requirements of this Agreement, and any other
conditions and/or approvals that the City may deem necessary; and
(e) Incorporate the language of the Certificate Regarding Lobbying executed
in connection herewith.
4.13.2 FFC shall incorporate in all consultant and other subcontracts the
following provision:
"FFC is not responsible fnr any insurance or other fringe benefits, e.g., social
security, income tax withholding, retirement or leave benefits, for the Consultant
or employees of the Consultant, that are normally available to direct employees of
FFC. The Consultant assumes full responsibility for the provision of all insurance
and fringe benefits for himself/herself/itself and employees retained by the
Consultant in carrying out the Work Plan provided in this subcontract."
4.13.3 FFC shall be responsible for monitoring the contractual performance of all
subcontracts.
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4.13.4 FFC shall receive written approval from the City prior to either assigning
or transferring any obligations or responsibility set forth in this Agreement or the
right to receive benefits or payments resulting from this Agreement.
4.13.5 Approval by the City of any subcontract or assignment shall not be
deemed to be the City's agreement to incur any obligations in excess of the total
dollar amount agreed upon in this Agreement.
4.13.6 FFC and its subcontractors shall comply with all applicable laws,
ordinances, regulations and requirements.
4.13.7 (Intentionally deleted.).
4.14 Audits and Records.
4.14.1 FFC shall submit to the City an audit conducted by an independent
certified public accountant or firm of independent certified public accountants in
accordance with the general accepted auditing standards. Two copies of such
audit must be delivered to the City no later than six (6) months following the end
of each FFC fiscal year.
4.14.2 FFC shall maintain all Contract Records in accordance with generally
accepted accounting principles, procedures, and practices, which records shall
sufficiently and properly reflect all revenues and expenditures of funds provided
directly or indirectly by the City pursuant to the terms of this Agreement.
4.14.3 FFC shall ensure that the Contract Records shall be subject to and
available for full access and review, inspection or audit by the City and any other
persons duly authorized by the City during normal business hours.
ARTICLE V
COVENANTS, REPRESENTATIONS AND WARRANTIES OF FFC
FFC covenants, represents and warrants to the City as follows:
5.1
Organization and Existence. Flagler First Condominiums, L.L.C. is a Florida
limited liability company, duly organized, validly existing and in good standing under the laws of
the State of Florida, and has full power and authority to conduct its business as presently
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conducted, to receive the Funds, to operate and develop the Project and participate therein, and,
upon condominiumization of the Property, to own the Property and the Project.
FFC has full power and authority to perform the provisions hereof and of its agreements
and undertakings with the City and to perform the transactions contemplated hereby. The
execution of all documents contemplated hereby and FFC's full performance thereunder have
been duly authorized by all necessary corporate or other approvals and actions.
5.2 Correctness of Documents. The cost estimates, Budget, schedules, and all other
documents furnished to the City in connection with this Agreement, are true and correct in all
material respects and accurately set forth the facts contained therein and neither misstate any
material fact nor, separately or in the aggregate, fail to state any material fact necessary to make
the statements made therein not misleading.
5.3 Absence of Proceedings, Actions and Judgments. There are no conditions,
circumstances, events, agreements, documents, instruments, restrictions, actions, suits or
proceedings pending or threatened against or affecting FFC, the Project or the Property which
could adversely affect FFC's ability to comply with the Legal Requirements, complete or operate
the Project or to perform its obligations hereunder or which would constitute an Event of Default
hereunder or under the other Grant Documents regardless of the giving of notice or the passage
of time or both. There are no outstanding or unpaid judgments or arbitration awards against
FFC.
5.4 Non -Default. FFC is not in default or violation with respect to any Legal
Requirement, nor is it in default under or in material breach of any instrument or agreement to
which it is a party or by which it otherwise may be bound. The execution and delivery of this
Agreement and the other Grant Documents, the consummation of the other transactions
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•
contemplated hereby, and the ownership and development of the Project as contemplated hereby
and by the other Grant Documents: (i) do not and will not conflict with or result in violation of
any Legal Requirement or in the breach or default under any indenture, contract, agreement or
other instrument to which FFC is a party or by which it may be bound; and (ii) have been duly
authorized by all necessary actions and approvals, whether corporate or otherwise.
5.5 Valid Obligations. This Agreement and all of the other Grant Documents, when
executed and delivered, shall constitute the duly authorized, legal, valid and binding obligations
of FFC and will be enforceable in accordance with their respective terms.
5.6 Marketable Title. The Property Owner has, , good and marketable title to the
Property, subject only to the exceptions set forth in the Chicago Title Insurance Company Title
Insurance Commitment No. 300212690, effective as of November 15, 2002 at 6:00 A.M., and
any other matters permitted by the City.
5.7 Compliance. The completion and use of the Project in accordance with the Work
Plan shall comply fully with all Legal Requirements, and with all limitations on the use of the
Project, or any other condition, grant, easement, covenant, or restriction, whether recorded or not.
All necessary approvals, permits and licenses for the construction, operation, and use of the
Project have been or will be unconditionally obtained and are or will be in full force and effect,
or if the present state of construction of the Project does not allow such issuance, then such
approvals, permits and licenses will be issued when the Project is completed.
5.8 Encroachments. When completed in accordance with the Work Plan, the Project
will not encroach upon any building line, setback line,. sideyard line or other recorded or visible
easement or other easement of which FFC is aware which exists (or which FFC has reason to
-18-
believe may exist) with respect to the Project, except as disclosed on the survey of the Property
or title insurance commitment provided to the City by FFC.
5.9 Work Plan. The Work Plan is complete in all material respects, and contains all
details requisite for the Project which, when constructed and equipped in accordance therewith,
shall be ready for the intended use and occupancy thereof.
5.10 Leases. There are no leases, tenancies, licenses or agreements for use of any part
of the Property other than as specifically disclosed to the City. It is understood and agreed that
this provision of the Agreement shall not be deemed to restrict FFC and/or the Property Owner's
right during the term of this Agreement to lease any portion of the commercial component of the
Property (the first floor and a portion of second floor of the building)
5.11 Pending Assessments. FFC has no knowledge of any pending or proposed
governmental action that would impair the operation or value of the Project or result in a special
assessment against the Project.
5.12 Waste. FFC shall not commit or suffer waste or negligence on the Project.
5.13 Fraud. No fraud by FFC has occurred in the negotiation of this Agreement and
the other Grant Documents, nor in the transactions contemplated hereby.
5.14 No Casualty. No part of the Property and/or the Project has been damaged or has
been subjected to condemnation or other proceedings, and no such proceedings have been
threatened.
5.15 No Changes. There have been no material adverse changes in projected costs and
expenses of or from the Project or in the occupancy of the Property or any other features of the
transactions contemplated hereby as submitted to the City.
-19-
s
5.16 Compliance with Laws and Regulations. FFC shall, and shall cause the Property
Owner to, comply at all times with all Legal Requirements and ensure that the Project shall
comply with all applicable Legal Requirements. FFC shall comply at all times with the Legal
Requirements affecting the ownership, use, rehabilitation, lease and operation of the Project.
5.17. Other Financing. FFC has not applied for or received, and does not otherwise
have available, in connection with the Project any other financing/funding, except for those
funds, loans and/or loan commitments previously identified in writing to, and approved by, the
City.
FFC has obtained from Wachovia Bank, National Association ("Wachovia") a
commitment for a construction loan for the Project in the amount of $9,360,000.00. In
connection with the Closing of the construction loan from Wachovia, the City agrees to execute
its standard form of subordination agreement in favor of Wachovia. Thereafter, the City's
Mortgage shall be a second mortgage, subordinate to the iten of the mortgage in favor of
Wachovia securing an indebtedness not to exceed $9,360,000.00.
5.18 Reaffirmation. Each of the representations and warranties set forth in this Article
shall be true at all times, and the acceptance of any Funds hereunder by FFC shall be deemed to
be a reaffirmation of each of the representations and warranties given in this Agreement.
ARTICLE VI
DEFAULT
6.1 The happening of any one or more of the following events shall constitute an
Event of Default:
(a) The violation, untruth, or substantial inaccuracy or incompleteness of any
term, condition or representation contained in this Agreement or any of the Grant Documents, or
-20-
a
the existence of a material misrepresentation of fact or fraud contained in any documents
submitted in support of this Agreement.
(b)
The substantial discontinuance of the construction of the Project for a
period of thirty (30) days which discontinuance is, in the sole determination of the City, without
satisfactory cause.
(c). The sale, assignment, pledge, transfer, hypothecation or other disposition
of any proprietary or beneficial interest in either FFC or the Property, or any change in operating
control of either FFC or the Property Owner, other than as previously disclosed to the City in
writing or permitted by this Agreement.
(d) In the event that the City detennines, in its sole and absolute discretion,
that the Project is not being erected in a good and workmanlike manner in accordance with the
Work Plan, or that FFC is failing to comply promptly with any requirement or notice of violation
of law issued by or filed by the City or any department of any governmental authority having
jurisdiction over FFC or the Property.
(e) Failure by FFC to materially comply with any term or provision of this
Agreement.
(f) Any change in zoning requirements or zoning classification of the
Property, which in the City's sole discretion would materially interfere with the completion of
construction of the Project or the ultimate operation of the Project as contemplated herein.
(g)
In the event that the City determines, in its sole and absolute discretion,
that there exists an event of default under and pursuant to the terms of any other agreement or
obligation of any kind or nature whatsoever of either FFC to the City, direct or contingent,
whether now or hereafter due, existing, created or arising.
-21-
•
ARTICLE VII
REMEDIES
7.1 Upon the occurrence of any Event of Default, the City shall have the absolute
right to refuse to disburse any undisbursed portion of the Funds. If an Event of Default shall
continue uncured for a period of thirty (30) consecutive days following written notice thereof to
FFC (except for the events described in Article VI (a) and (g) above for which the
aforementioned cure period shall not apply) the City shall have the absolute right,..at its option
and election and in its sole discretion to:
(a) Recapture of Funds. Demand that FFC reimburse the City, and FFC shall
reimburse the City, for the full amount of Funds disbursed to FFC pursuant to this Agreement.
(b)
Specific Performance. Institute appropriate proceedings to specifically
enforce performance of the terms and conditions of this Agreement.
(c) Termination. Upon the expiration of any cure period (in those
circumstances for which a cure period is otherwise provided in this Agreement), and unless
FFC's breach is waived by the City in \writing, the City may, by written notice to FFC, terminate
this Agreement upon not less than twenty-four (24) hours prior written notice. Said notice shall
be delivered by certified mail, return receipt requested, or by in person delivery with proof of
delivery.
(d) Other Remedies. Exercise any other right, privilege or remedy available to
the City as may be provided by applicable law, or in any of the Grant Documents.
It is understood and agreed that the occurrence of an event of default under Article VI (a)
or (g) shall immediately entitle the City to exercise any of the above described remedies without
the need to give FFC notice thereof nor the opportunity to cure.
-22-
0
The rights and remedies of the City hereunder shall be cumulative and not mutually
exclusive, and the City may resort to any one or more or all of said remedies without exclusion of
any other. No party other than the City, whether FFC or a materialman, laborer, subcontractor or
supplier, shall have any interest in the Funds withheld because of a default hereunder, and shall
not have any right to garnish or require or compel that payment thereof be applied toward the
discharge or satisfaction of any claim or lien which any of them may have.
Waiver of breach of any provision of this Agreement shall not be deemed to. be a waiver
of any other breach and shall not be construed to be a modification of the terms of this
Agreement. The provisions hereof are not intended to be, and shall not be, construed to limit the
City's right to legal or equitable remedies.
ARTICLE VIII
UNAVOIDABLE DELAY
8.1 Unavoidable Delay(s). "Unavoidable Relay(s)" means damage or
destruction by fire or other casualty, whether similar or dissimilar, acts of federal, state, county
and/or city governments, including acts pertaining to strikes, embargoes, shortages of material or
labor, labor troubles or labor disputes, force majeure, unusually adverse weather conditions, or
other like or unlike events or conditions beyond the control of the parties hereto, including any
court actions, and injunctions by third parties.
For the purpose of any of the provisions of this Agreement, neither FFC nor the City shall
be considered in breach of or in default of any obligations under this Agreement in the event of
an Unavoidable Delay(s), in accordance with the provisions of Section 8.2 below.
8.2 Manner of Notice of Unavoidable Delay(s) and Conditions With Respect to
Performance of Obligations. In the event of Unavoidable Delay(s), the time for performance of
-23-
obligations, covenants, and/or agreements which are affected by the Unavoidable Delay(s) shall
be extended for the period of time of the Unavoidable Delay(s) or for such period of time as may
be necessary under the circumstances, provided that the party seeking the benefit of the
provisions of this section shall:
(a) As soon as reasonably possible, but no later than thirty (30) days after such party
shall have become aware of the Unavoidable Delay(s), give notice, in writing to
the . other party hereto of the Unavoidable Delay(s) which notice shall specify
which of the obligations, covenants, and/or agreements of this Agreement the
notifying party is unable to perform at the time of such notice and how the
Unavoidable Delay(s) has affected the party's performance of such obligations,
covenants, and/or agreements; and
(b) As soon as reasonably possible, the party claiming such Unavoidable Delay(s)
shall commence and shall continue diligently the performance of such obligations,
covenants, and/or agreements so delayed.
ARTICLE IX
INDEMNIFICATION
FFC shall indemnify and hold the City and its past, present and future employees and
agents harmless from any and all claims, liabilities, losses, and causes of action which may arise
out of the actions, negligence, or omission, in whole or in part, of FFC, its officers, agents,
employees, or assignees in the fulfillment of this Agreement. FFC shall pay all claims and losses
of any nature in connection therewith, and shall defend all suits, in the name of the City when
applicable, and shall pay all costs and judgments which may issue thereon.
ARTICLE X
MISCELLANEOUS
-24-
10.1 Renegotiation or Modification. Modification of provisions of this Agreement
shall be valid only when in writing and signed by the parties hereto. The parties agree to modify
this Agreement if the City determines, in its sole and absolute discretion, that federal, state,
and/or local governmental revisions of any applicable laws or regulations make changes to this
Agreement necessary.
10.2 Disputes. In the event an unresolved dispute exists between FFC and the City, the
City shall refer the issue, including the views of all interested parties and the recommendation of
the City, to the City Manager, his designee, or such other official of the City who shall be
authorized to exercise the authority of the City Manager in this regard ("City Manager") for
determination. The City Manager will issue a determination within thirty (30) calendar days of
receipt of a written request for resolution of the dispute and so advise the City and FFC. In the
event additional time is necessary, the City Manager will notify the interested parties within the
thirty (30) day period that additional time is necessary. FFC agrees that the City Manager's
determination shall be final and binding on all parties, subject only to judicial review.
10.3 Headings. The article and paragraph headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
10.4 Proceedings. The Agreement shall be construed in accordance with the laws of
the State of Florida and any proceedings arising between the parties in any manner pertaining or
relating to this Agreement shall, to the extent permitted by law, be held in Miami -Dade County,
Florida.
10.5 Notices and Contact. All notices under this Agreement shall be in writing and
addressed as follows:
-25-
To City:
City of Miami
Department of Real Estate and Economic Development
444 Southwest 2nd Avenue
Miami, Florida 33130
ATTN: Dena Bianchino, Assistant City Manager
With Copy To: City Attorney's Office
444 Southwest 2nd Avenue, Suite 945
Miami, Florida 33130
ATTN: Ilene Temchin, Esquiare
To FFC: Flagler First Condominiums, L.L.C.
48 East Flagler Street
PH-5
Miami, Florida 33131
Attn: Natan Rok
With Copy To: Evan R. Marbin, Esq.
48 East Flagler Street
PH-104
Miami, Florida 33131
Except as otherwise provided in this Agreement, notice shall be deemed given upon hand
delivery or five (5) business days after depositing the same'ith the U.S. Postal Service. The
address or designated representative of the parties may be changed by notice given in accordance
with this section.
10.6 Conflicts with Applicable Laws. If any provision of this Agreement conflicts with
any applicable law or regulation, only the conflicting provision shall be deemed by the parties
hereto to be modified, or to be deleted if modification is inappropriate, to cause the provision to
be consistent with the law or regulation. However, the obligations under this Agreement, as
modified, shall continue and all other provisions of this Agreement shall remain in full force and
effect.
10.7 Right to Waive. The City may, for good and sufficient cause, as determined by
the City in its sole and absolute discretion, waive provisions of this Agreement or seek to obtain
-26-
such waiver from an appropriate authority. Waiver requests from FFC shall be in writing. A
waiver shall not be construed to be a modification of this Agreement.
10.8 Proceedings. The Agreement shall be construed in accordance with the laws of
the State of Florida and any proceedings arising between the parties in any manner pertaining or
relating to this Agreement shall, to the extent permitted by law, be held in Miami -Dade County,
Florida.
10.9 Entire Agreement. This Agreement and its Exhibits described as follows contain
all the terms and conditions of the Agreement between the parties:
Exhibit A Scope of Work/Work Plan and Project Schedule
Exhibit B Legal Description
Exhibit C Budget
Exhibit D Disbursement Procedures
Exhibit E Form of Opinion of Counsel
10.10 Waiver of Jury Trial. Neither FFC nor its subcontractor(s), nor any other person
liable for the responsibilities, obligations, services and representations herein, nor any assignee,
successor, heir or personal representative of FFC, its subcontractors or any other person or entity
shall seek a jury trial in any lawsuit, proceeding, counterclaim or any other litigation procedure
based upon or arising out of this Agreement, or the dealings or the relationship between or
among such persons or entities, or any of them. Neither FFC nor its subcontractors, nor any
other person or entity will seek to consolidate any such action in which a jury trial has been
waived with any other action. The provisions of this paragraph have been fully discussed by the
parties hereto, and the provisions hereof shall be subject to no exceptions. Neither party to this
Agreement has in any manner agreed with or represented to any other party that the provisions of
this paragraph will not be fully enforced in all instances.
-27-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their undersigned officials as duly authorized, this 7-3 day of
bQiji. , 2002.
A
Priscilla A. to son
City Clerk
Approved As To Insurance
Requirements:
Risk Management Administrator
IT-Flaglcr First Agreement-12-20-02
o u tE4t�l,,l_,v_�s�r 11011(iViv r\.4V }
1 �� Yet it f Orft 1�rSF {OT(llllJntJnSr l�.0
Flagler First Concomi - um f L.L.C., a
Florida limited Ii• ''lity -.mpy
By:
City of Miami, a ' . mcipal corpor
of th to of F orida
7c. By
_28-
J rrio
C anager
Approved
Corr
ejandro i arello
City Attorney
Old Centrust Building Partnership, a Florida general partnership, joins in the execution of
this Agreement as the owner of the Property (referred to in this Agreement as the "Property
Owner") for the purpose of confirming its agreement to comply with all obligations and
requirements herein relating to the Property and the improvements thereon that constitute all or
any part of the Project.
Old Centrust Building Partn - r hip,
general partnership
By:
artner
-29-
Exhibit B
Legal Description of the Property
Lot 11 and the West One -Half of Lot 12 in Block 117 North, City of Miami, according to the Plat
thereof recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida.
-31-
Flagler First Condominiums
Exhibit C and D
Project Budget and Disbursements Procedure
Tom
ice! • Budget l Sep•02 0er02 Nov412 Deo•02 Jen•03 Peb•03 Mm•03 Apr-03 May-03 Jun-03 Jul-03 Au9-03 Sep 03 0c1-03 HovC3 Os `m lan tM Feb oe w.a+ Apr 01 ► p04 J'm MI
Hard Construction Cost 8,915,000 44.1 % 10,000 12,746 255,030 255,000 100,000 100,030 100.000 100,000 427,303 427,303 427,303 427.303 427,303 427.303 427.303 427,303 e27,303 427,303 427,300 427,303 427,303 427,315
Nab Coot Calltbgslcy 1.000,006 6.48. 100.000 100.000 100.000 100.000 100.000 100A00 100,000 100.000 100,000 100,000
Oms 0 0.0%
Caaviz8on Maras 1 Esparta 930,000 5.9% 54.708 54.706 54.706 54.706 54.708 54.706 54.708 54,708 54,708 54,708 54.708 54.708 54.706 54308 54,708 54.706 54.704
Co. strbc60n Loan Oripbmeon Fee 93,800 0J7% 75.000 18,600
*coursing Fee 55,000 0w8. 15.000 3.438 3,436 3,438 3.438 3,438 3.438 3438 3.438 3,438 3,438 3.438 2.482
Apprahel 18,000 0.1% 3.000 15,000
Aid41uc1Pee-0esIpn 280,000 1.7% 60,000 50.000 50,000 78.000 11200 11.200 11,200 11200 11,203 11200 11200 11200 11,200 11,200 11,200 11200 11,600
Insurance 85.000 0.4% 85.000
81Mdr*p Permit 160,000 1.0% 180,000
Enpkt8elt99 Foe 210,000 1.38. 5.000 36,000 31000 35,000 35.000 35,000
Enveomlalsl Repoli 8
Remedeeon 175,000 1.1% 8.800 83200 83200
anger., Fee 140,000 0.9% 140,000
8rpee0on Fero 55,000 0.4% 3.500 3.500 3.500 3,500 3,500 3.500 3.500 3.500 3.500 3.500 3.500 3.500 3300 3,600 3.500 3500
Lagal Foes • ParelssNp 225,000 1.4% 24,800 8,268 8,288 8268 8,288 8,268 8268 6268 8268 8268 6268 6,268 8274
Mareestp 8 Advereasnera 95,000 0A% 10.000 40.000 45.000
Properly Texas 50,000 0.3% 50.000
Sway Inclu8r' Aa-Bldto 25,000 02% 25,000
Ties Insurance am Rca ell rg 185,000 1.1% 165,OW
unity Camec6onFoe 1313,000 0.9% 138,000
DMCOC C446d6ng fee 100,000 0.6% 8333 8,333 6,333 8,333 8,333 8,333 8,333 8,333 8.333 8,333 8.333 8,337
Camr10a1cy(Solt COW 86.000 0.5% 7,093 7.083 7.083 7.083 7.083 7,083 7,013 7.083 7483 7,093 7.083 7,087
0Bvolap574 Tao it Overhead 885,000 5.7% 55338 55,938 55338 55.938 55.938 55.938 55,938 55.938 55,938 55338 56,938 55.938 55,838 55,938 56,930 55338
E0491310 6564115. Canal nad 3.538,000 22316 3.5313.000
Adaional Contlnpency 305400 1.8% 26,452 25,452 25,452 25,452 25``452 25,452 25,452 25,452 2�5�,4S452 25,452 25,4<45�2� 25,428
Total Has 15.09a,000 15,584.450 12,744 614,468 430,0e6 426A10 389,716 e67,719 356,715 1,130,810 803219 703219 103,219 713,21e 903, 27 s46,833 595,801 653647 662,647 662,639 552.847 5113,209 583,819
Tom 46,899,0CD
I21tM
Davelap.Po Emety 3.536.000 22.5% 3.534.000
Corllbuc90nLoan Marcos - 9,350.000 59.68
Sub Tom 12,598,000
CIly d M4an4 Grand 1,800,000 11,5%
Dade County 1,000.000 6.4%
Sub Tom 2300,000
Total Sources 15,886,000
Total 15,090,000
JO • Fiaaa10211054
73,636 1,130,019 603219 703219 603219 703219 603227 748,953 595.881 852,647 552,647 852,839 552.847 593209 503,819
11,87E 420,010 389,716 887,718 260,880
48.400 12,748 514,486 426,308
3,684.400 12
745 5114,455
436,008 420,010 369,716 547,715 364,7
8 1
30,019 603,219 703,219 503.219 703,219 503.227 746,953 595651 652,547 882,647 552,635 582.867 593,204 562.
1012 11120/2002
AEC:I5T66PG0T29` . 141
OLD'CENTRUST BUILDING PARTNERSHIP AGREEMENT
0
! 5766rGOT30
REC.
OLD CENTRUST BUILDING PARTNERSHIP AGREEMENT
TABLE OF CONTENTS
Article 1 - FORMATION OF THE PARTNERSHIP 1
1.01 Organization 1
1.02 Partnership Name 1
1.03 Principal Place of Business and
Addresses of Partners 2
1.04 Purpose 2
1.05 No. Payments of Individual Obligations 2
1.06 Statutory Compliance 2
1.07 Title to. Property 2
1.08 Term 2
1.09 Independent Activities 2
1.10 Def ihitions 3
Article 2 - CAPITAL CONTRIBUTIONS 12
2.01 Initial Capital Contributions 12
2.02 Required Additional Capital Contributions 12
(a) Capital Call 12
(b) Failure to Contribute 12
(c) .Computation of Future Profits Interests . 13
(d) Mandatory Book -Up of Capital Accounts . . 13
2.03 Percentage Interests 14
2.04 Pro:°its Interest 14
2.05 Withdrawal of Capital 14
2.06 No Interest on Capital 14
2.07 Additional Partners 14
2.08 Partner Loans 14
Article 3 - ALLOCATION 14
3.01 Prof its 14
3.02 Losses 15
3.03 Special Allocations 15
(a) Minimum Gain Chargeback 15
(b) Partner Minimum. Gain Chargeback 15
(c) Nonrecourse Deductions 16
(d) Partner Nonrecourse Deductions 16
(e) Section 754 Adjustments 16
(f) Non=Cumulative Preferred Return Allocation 16
r
3.04 Curative Allocations to Insure Consistency
with Economics of Deal 16
3.05 General 17
3.06 Tax Allocations: Code section 704(c) 17
3.07 Tax Status .18
° I5766PG0731.
BEC.
Article 4 - DISTRIBUTIONS OF NET CASH FLOW 18
4.01 Net Operating Cash Flow Defined 18
4.02 Net Operating Cash Flow 19
4.03 Computation of Net Operating Cash Flow 19
4.04 Distribution of Net Operating Cash Flow 19
4.05 Net Cash Proceeds From Sales or Refinancing 19
4.06 Distribution Among Partners 20
Article 5 - ACCOUNTING AND RECORDS 21
5.01 Books and Records 21
5.02 Reports 21
5.03 Tax. Returns 21
5.04 Tax and Accounting Decisions . . . . . . . 21
5.05 Spacial Basis Adjustment 21
5.06 Tax Matters Partner 22
5.07 Fiscal Year 22
5.08 Bank Accounts 22
5.09 Management Agreement 22
5.10 Partnership's Accountants and Counsel 22
Article 6 - MANAGEMENT 23
6.01 Day -to -Day Management by Partners 23
6.02 Information Requirement 25
6.03 Inrsurance Coverage 25
6.04 Reimbursement of Expenses 25
6.05 Managing Partner's Activities 25
6.06 Compensation. 26
6.07 Successor Managing Partner 26
Article 7 - FINANCING 26
Article 8 - TRANSFERS OF INTERESTS; WITHDRAWALS 27
8.01 Restrictions on Transfers 27
(a) General 27
(b) Definition of Permitted Transfer;
Permitted Transferee 27
(c) Conditions to Permitted Transfers . . . .. 27
(d) Admission of Permitted Transferee as a
Partner 28
(e) Effect of Permitted Transfer on Partnership 28
8.02 Covenant Not to Withdraw or Dissolve 28
8.03 Consequepces of Being a Breaching Partner 28
8.04 Bre•3ch Payments 30
8.05 No Bonding 30
ii
' Article
in 15766110732
9 - RIGHT OF FIRST REFUSAL
31
9.01 Right of First Refusal 31
Article 10
10.01
Article 11
(a) Limitations on Transfers
(b) Offer Notice
(c) Offer Period
(d) , Acceptance of First Offer by Managing
Partner
(e) Acceptance of Remaining Offered
Interest by Other Partners 32
Closing of Purchase of First Offer By
Managing Partner and/or other Partner
Sale to Purchaser
- REPRESENTATIONS AND WARRANTIES
(f)
(g)•
General
- INDEMNIFICATION
31
31
31
31
32
33
33
33
35
11.01 Indemnification by the Partnership 35
11.02 Exoneration of Partners for Acts in
Good Faith 35
Article 12
- DISSOLUTION AND WINDING UP 36
12.01 Ligiidating Events 36
12.02Winding Up 36
12.03 Deficit Capital Make -Up Provision 37
12.04 Deemed Distribution and Recontribution 37
12.05 Rights of Partners 37
12.06 Notice of Dissolution 38
Article 13
— MISCELLANEOUS
38
13.01 Notices 38
13.02 Binding Effect 38
13.03 Construction 39
13.04 Time 39
13.05 Captions 39
13.06 Severability 39
13.07 Incorporation by Reference 39
13.0E Further Assurances 39
13.09 Variation of Pronouns 39
13.10 Governing Law 39
13.11 Counterpart Execution 40
13.12 No Third Party Rights 40
13.13 Integration 40
13.14 Remedies m 40
13.15 Separate Counsel and No Tax Representations 40
13.16 Consent of Partners 40
iii
OFF.
REC. 15
66PG0733
13.17 Waiver 40
13.18 Wai:✓er of Partition 41
List of Exhibits
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
"An
• _
ICn
HD" —
"Ea
• _
DESCRIPTION OF PROPERTY 44
NAMES AND ADDRESSES OF PARTNERS 45
INITIAL CAPITAL CONTRIBUTIONS 46
PERCENTAGE INTEREST OF EACH PARTNER 47
INITIAL PROFITS INTEREST OF THE PARTNERS • 48
MANAGEMENT AGREEMENT 49
•
iv
0
OFF. 15766PGOT34
REC.
OId) CENTRUST BUILDING PARTNERSHIP AGREEMENT
This OLD CENTRUST BUILDING PARTNERSHIP AGREEMENT (the "Part-
nership") shall be effective as of the 31st day of December, 1990
(the "Effect ve Date"), by and among NATAN ROK, EVELYN ROK, MASZA.
ROK, SERGIO ROK, VICTOR CAMJI, MOISES BEREZDIVIN, MERDARDO TUCHMAN,
YAKO and CLARA MORJAIN, R. BRANDON and D. BRANDON, TRUSTEE, under
the R. BRANDOIr REVOCABLE LIVING TRUST and BLUMIN MENDEZ PARTNERSHIP
hereinafter referred to singularly as "Partner" and collectively as
"Partners," pursuant to the following terms and conditions:
W ITNESSET H:
WHEREAS, the Partners entered into an oral partnership agree-
ment prior to 1:he Effective Date to engage in certain activities as
further described herein; and
WBEREkS, ".he Partnership purchased certain real property loca-
ted in Dade County, Florida (the "Property") as legally described
on the attached Exhibit "A", together with the buildings, struc-
tures, equipment, improvements and fixtures thereon; and
WHEREAS, the Partnership intends to construct, improve and
renovate the Property and thereafter offer commercial retail space
to tenants; and
WHEREAS, the Partners now desire to memorialize their oral
agreement as set forth above effective on the Effective Date; and
WHEREAS, the Partners also desire for their rights and obli-
gations and the control and management of the Project to be gover-
ned by the terms and conditions of this Agreement:
NOW, THEREFORE, in consideration of the foregoing, of the
mutual promises of the parties hereto, and of other good and valu-
able consideration, the receipt and sufficiency of which is hereby
acknowledged, the Partners agree as follows:
Article 1
FORMATION OF THE PARTNERSHIP
1.01 Organization. The Partnership is hereby organized as a
Florida general partnership in accordance with, and for purposes
of, the provisions of the Act.
1.02 Partnershln Name. The name of the Partnership shall be
Old Centrust Building Partnership, and all business of the Partner-
ship shall be conducted in such name. The Managing Partner may
change the name of the Partnership or adopt such trade or fictiti-
ous names as he determines appropriateand he shall give the other
Partners reasonable notice of such events. The Partnership shall
OFf: 1 5766PC0T35
REC.
hold all of its property in the name of the Partnership and not in
the name of any Partner.
1.03 Principal Place of Business and Addresses of Partners.
The principal place of business of the Partnership shall be located
at 48 East Flagler Street, PH #105, Miami, Florida 33131, or at
such other place as the Managing Partner may from time to time
designate in writing. The addresses of the Partners are set forth
on Exhibit "B' attached hereto.
1.04 Purpose. The purpose of the Partnership's business is
to acquire the Property from the Resolution Trust Corporation, own,
site plan, survey, engineer, obtain proper zoning, development
approvals and permits, develop, mortgage, encumber, hypothecate,
improve, alter, retodel and expand the Property as commercial
retail tenant space and thereafter lease, offer to lease, manage,
sell, maintain and otherwise deal with part or all of the Property
(the "Project"), investing and reinvesting any funds held in
reserve pursuant to the terms of this Agreement and do all such
other things as are necessary, proper, convenient or advisable in
connection herewith or related thereto not otherwise inconsistent
with the purposes set forth herein.
1.05 No Payments of Individual Obligations. The Partners
shall use the Partnership's credit and assets solely for the bene-
fit of the Partnership. No asset of the Partnership shall be
transferred or,encumbered for or in payment of any individual obli-
gation of a Partner.
1.06 statutdry Compliance. The Partnership shall exist under
and be governed by, and this Agreement shall be construed in accor-
dance with, tho applicable laws of the State of Florida. The Part-
ners shall make all filings and disclosures required by, and shall
otherwise comply with, all such laws. The Partners shall execute
and file in the appropriate records any assumed or fictitious name
certificates and other documents and instruments as so requested by
the Managing Partner as may be necessary or appropriate with res-
pect to the formation of and conduct of the Partnership's business.
1.07 Title to Property. No Partner shall have any ownership
interest in any and all real and personal property owned by the
Partnership and each Partner's interest in the Partnership shall be
personal property for all purposes.
1.08 Term. The term of the Partnership commenced as of the
Effective Date and shall continue until the winding up and liqui-
dation of the Partnership and its business is completed following
a "Liquidating Event," as provided in Article 12 hereof.
1.09 Independent Activities. Each Partner, notwithstanding
this Agreement, may engage in or possess any interest in any busi-
ness venture or activity of any nature or description whatsoever,
2
i15766110736
independently or with others, whether the same be competitive with
the Partnersh:ip's business or otherwise, without -having or incur-
ring any obligation to offer any interest in such business or acti-
vity to the Partnership or any Partner, and as a material part of
the consideration for the execution of this Agreement by each Part-
ner, each Partner hereby waives, relinquishes, and renounces any
such right', or claim of participation in such .business or activity
and the income or profits derived therefrom.
1.10 Definitions. Unless otherwise expressly provided herein
or unless the content otherwise requires, capitalized words and
phrases used in this Agreement shall have the following respective
meanings:
"Act" means the Florida Uniform Partnership Act of the
State of Florida as set forth in Chapter 620 of the Florida Sta-
tutes, as amended from time to time.
"Adjusted Capital Contributions" means, as of any day,
the Partner's Capital Contributions adjusted as -follows:
(1) increased by the amount of any Partnership
liabilities which, in connection with distributions pursuant to
paragraphs 4.05(c) and 12.02(c) hereof, are assumed by such Partner
or are secured by any Partnership property distributed to such
Partner;
(2) increased by any amounts actually paid by such
Partner to any Partnership lender pursuant to the terms of any
Assumption Agreement; and
(3). reduced by the amount of cash and the Gross
Asset Value of any Partnership property distributed to such Partner
pursuant to paragraphs 4.05(c) and 12.02(c) hereof and the amount
of any liabilities of such Partner assumed by the Partnership or
which are secured by any property contributed by such Partner to
the Partnership.
In the event any Partner transfers any portion of his Percentage
Interest in accordance with the terms of this Agreement, its trans-
feree shall succeed to the Adjusted Capital Contribution of the
transferor to 4:he extent it relates to the transferred Interest.
"Affiliate" means, with respect to any Person, (i) any
Person directly or indirectly controlling, controlled by or under
common control with such Person, (ii) any Person owning or control-
ling ten percent (10%) or more of the outstanding voting interests
of such Person, (iii) any officer, director, or general partner of
such Person, or (iv) any Person who is an officer, director, gen-
eral partner, trustee, or holder of ten percent (10%) or more of
the voting interests of any Person described in clauses (i) through
(iii) of this sentence. The term "controls" (including the terms
3
REC 15766110737 00
•
"controlled by and "under common control with") means the posses-
sion, direct or indirect, of the power to director cause the dir-
ection of the management and policiesof an entity or individual
whether through the ownership of voting securities, by contract, or
otherwise.
"Alreement" or ",Partnership Agreement" means this Agree-
ment of Partnership, as amended from time to. time. Words such as
"herein," "hereinafter," "hereof," "hereto," and "hereunder" refer
to this Agreement as a whole, unless the context otherwise
requires.
"Article" means an article of this Agreement.
",assumption Agreement" means any agreement among the
Partnership, :any of the Partners, and any Person to whom the Part-
nership is inaebted pursuant to a loan agreement, a reimbursement
agreement, or any other arrangement (collectively referred to as a
"loan" for purposes of this Agreement) pursuant to which any Part-
ner expressly' assumes personal liability with respect to such loan.
The amount of any such loan shall be treated as assumed by the
Partner(s) for all purposes under this Agreement in the proportions
set forth in such Assumption Agreement and their respective amounts
so assumed shall be credited to their respective Capital Accounts
pursuant to paragraph (1) in the definition of Capital Account. To
the extent such loan is repaid by the Partnership, the Partners'
Capital Accounts shall be debited with their respective shares of
the repayments pursuant to paragraph (2) of the definition of Capi-
tal Account. To the extent such loan is repaid by some or all of
the Partners from 'their, own funds, there shall be no adjustments to
their Capital Accounts.
"Capital Account" means, with respect to any Partner,
the Capital Account maintained for such Partner in accordance with
the following provisions:
(1) each Partner's Capital Account shall be cre-
dited with such Partner's Capital Contributions, such Partner's
distributive share of Profits, and any items in the nature of
income or gain which are specially allocated pursuant to Sections
3.03 or 3.04 hereof, and the amount of any Partnership liabilities
assumed by such Partner or which are secured by any property
distributed to such Partner;
(2) each Partner's Capital Account shall be debi-
ted with the amount of cash and the Gross Asset Value of any pro-
perty distributed to such Partner pursuant to any provision of this
Agreement, such Partner's distributive share of Losses and any
items in the nature of expenses or losses which are specially allo-
cated pursuant to Sections 3.03 or 3.04, and the amount of any lia-
bilities of rrIch Person assumed by the Partnership or which are
4
OF15766PG0738
NEC.
secured by any property contributed by such Partner to the Partner-
ship;
(3) in the event any Percentage Interest in the
Partnership is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relatesto the transferred
Interest; and
(4) in determining the amount of any liability for
purposes of paragraphs (1) and (2) above, and paragraphs (1) and
(2) of the definition of Adjusted Capital Contributions, there
shall be taken into account Code section 752(c) and the Treasury
Regulations promulgated thereunder.
The foregoing provisions and the other provisions of this •
Agreement relating to the maintenance of Capital Accounts are in-
tended to comply with Treas. Reg. section 1,704-1(b), and shallbe
interpreted and applied in a manner consistent with such Regula-
tions. In the event the Tax Matters Partner shall determine that
it is prudent to modify the manner in which the Capital Accounts,
or any debits or credits thereto (including, without limitation,
debits or credits relating to liabilities that are secured by con-
tributed or distributed property or that are assumed by the Part-
nership or any of the Partners) , are computed in order to comply
with such Regulations, the Tax Matters Partner may make such modi-
fication, provided that it is not likely to have a material effect
on the amount distributable to any Partner pursuant to Article 12
hereof upon the dissolution of the Partnership. The Tax Matters
Partner also zhall (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of
the Partners and the amount of Partnership Capital reflected on the
Partnership's balance sheet, as computed for book purposes, in.
accordance with Treas. Reg. section 1.704-1(b)(2)(iv)(q), and (ii)
make any appropriate modifications in the event unanticipated
events might otherwise cause this Agreement not to comply with
Treas. Reg. section 1.704-1(b).
"Capital Contributions" mean the amount of money and the
agreed fair market value of any property other than money contribu-
ted to the Partnership by a Partner with respect to the Percentage
Interest held by such Partner pursuant to the terms of this Agree-
ment.
"Code" means the Internal Revenue Code of 1986, as amen-
ded from time to time (or any corresponding provisions of succeed-
ing law).
"Depreciation" means, for each Fiscal Year or other per-
iod, an amount equal to the depreciation, amortization, or other
cost recovery deduction allowable with respect to an asset for such
year or other period, except that if the Gross Asset Value of an
5
0 of�-
it:15766PG0739
asset differs from its adjusted basis for federal income tax pur-
poses at the beginning of such year of other period, Depreciation
shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortiza-
tion, or other 'cost recovery deduction for such year or other peri-
od bears to such beginning adjusted tax basis; provided, however,
that if the federal income tax depreciation, amortization, or other
cost recovery deduction for such year is zero, Depreciation shall
be determined with reference to such beginning Gross Asset Value
using any reasonable method -selected by the Managing Partner.
"g'tective Date" means as of December 31, 1990.
"grent of Bankruptcy" means, with respect to a Partner
or the Partnership, any of the following:
(1) filing a voluntary petition in bankruptcy or
for reorganization or for the adoption of any arrangement under the
Bankruptcy Code (as now or in the future amended) or an admission
seeking the relief therein provided;
creditors;
(2) making a general assignment for the benefit of
(3) consenting to the appointment of a receiver
for all or a substantial part of such Person's property;
(4) in the case of the filing of an involuntary
petition in bankruptcy, an entry of an order for relief;
(5) the entry of a court order appointing a recei-
ver or trustee for all or a substantial part of such Person's pro-
perty without his consent; or
(6) the assumption of custody or sequestration by
a court of competent jurisdiction of all or substantially all of
such Person's property.
"Execution Date" means the date of execution of this
Agreement.
"Fiscal Year" means the calendar year, except that the
first calendar year of the Partnership Agreement shall begin on the
Effective Date.
"Gross Appraised Value" means the fair market value of
the Project as'of a particular valuation date. As used herein, the
"fair market value".of the Project means the maximum amount that a
single buyer would reasonably be expected to pay for the entire
Project, free and clear of all liens and encumbrances, in a single
cash purchase, taking into account the current condition, finan-
cing, use, and zoning of the Project.
6
. 1lEE I5T66PCOT40 0
REC
The Gros:; Appraised Value may be determined by agreement of
the Partners. If they cannot agree upon the fair market value of
the Project, the Managing Partner and the other Partners shall
selectan appraiser within ten (10) days; except that if a deter-
mination of Gross Appraised Value is being made pursuant to Section
8.04, the Breaching Partner rather than the other Partners shall
select an appraiser. The appraisers shall meet within ten (10)
days of such appointment and shall endeavor, within twenty (20)
days of such appointment, to agree upon, and give written notice to
the Partnership, the Partners and the Partnership's Accountants, of
the Gross Appraised Value of 'the Project (the "Appraisers' No-
tice"). If an Appraisers' Notice is not given during such period,
then at any time after such period, the appraisers shall appoint a
Third Appraiser (the "Third Appraiser"). After the appointment of
the Third Appraiser; the. Gross Appraised Value shall be the amount
included in an Appraiser's Notice subscribed to by at least two of
the three appraisers. If two of the appraisers have not given such
an Appraisers' Notice within twenty (20) days of the appointment of
the Third Appraiser, the Gross Appraised Value of the Project shall
be determined solely by the Third Appraiser, who shall give an
Appraiser's Notice within thirty (30) days of his appointment.
Any appraiser appointed hereunder shall be disinterested and
shall be an M.A.I. appraiser qualified to appraise real property
similar to the Project and located in the vicinity of the Project.
"Gross Asset Value" means, with respect to any asset,
the asset's adjusted basis for federal income tax purposes, except
as follows:
• (1) the initial Gross Asset Value of any asset
contributed by a Partner to the Partnership shall be the agreed
gross fair market value of such asset, agreed to by the Partners;
(2) the Gross Asset Values of all Partnership
assets shall be adjusted to equal their respective gross fair mar-
ket values as of the following times: (a) the acquisition of an
additional interest in the Partnership by any new or existing
Partner in exchange for more than a de minimis Capital Contribu-
tion, including, but not limited to any additional Profits Interest
acquired by an existing Partner as a result of the dilution of
another Partner's Profits Interest arising out of his failure to
contribute additional capital pursuant to Section 2.02; (b) the
distribution by the Partnership to a Partner of more than a de
minimis amount of the Project as consideration for an interest in
the Partnership; and (c) the liquidation of the Partnership within
the meaning of Treas. Reg. section 1.704-1(b)(2)(ii)(g); provided,'
however, that adjustments pursuant to clauses (a) and (b) above
shall be made only if, the Partnership's Accountants determine that
such adjustments are necessary or appropriate to reflect the
relative economic interests of the Partners in the Partnership;
7
lEt I5?66PG0T4I
AEC.
(3) the Gross Asset Value of any Partnership asset
distributed tc any Partner shall be the gross fair market value of
such asset on the date of distribution; and
(4) the Gross Asset Value of Partnership assets
shall be increased (or decreased) to reflect any adjustments to the
adjusted basiE of such assets pursuant to Code section 734(b) or
Code section 743(b), but only to the extent that such adjustments
are taken into account in determining Capital Accounts pursuant to
Treas. Reg. section 1.704(b)(2)(iv)(m) and paragraph 3.03(e) here-
of; provided, however, that Gross Asset Values shall not be adjus-
ted pursuant to this paragraph (4) to the extent the Tax Matters
Partner determines that an adjustment pursuant to paragraph (2)
above is necessary or appropriate in connection with a transaction
that would otherwise result in an adjustment pursuant to this para-
graph (4).
If the Gross Asset Value of an asset has been determined or adjus-
ted pursuant to paragraph (1), (2) or (4) above, such Gross Asset
Value shall thereafter be reduced by any Depreciation taken into
account with x:,.1spect to such asset in computing Profits and Losses.
"Initial Capital Contributions" mean the Capital Contri-
butions made by the Partners to the Partnership pursuant to Section
2.01.
"Managing Partner" means Natan Rok or the successor man-
aging partner as set forth in Section 6.07.
"liet Cash Proceeds From Sales or Refinancings" mean the
net cash proceeds of the Partnership from the sale (other than a
sale of personal property in the ordinary course of the Partner-
ship's business), refinancing or other disposition of all or a por-
tion of the Project or the receipt of insurance proceeds (except
for business interruption insurance) or condemnation awards in
excess of the amount used to repair the Project. Net Cash Proceeds
From Sales or Refinancings shall include all principal and interest
payments with respect to any note or other obligation received by
the Partnershipin connection with the sale (other than a sale of
personal property in the ordinary course of the Partnership's busi-
ness) or other disposition of the Project.
"ngt Equity of a Partner's Percentage Interest", means
the amount that: would be distributed to such Partner in liquidation
of the Partnership pursuant to paragraphs 12.02(c), 12.02(d) and
(e), if the Project was sold for its Gross Appraised Value and the
Net Cash Proceeds from Sales and Refinancings were distributed in
the order of priority set forth in Section 12.02.
The Net Equity of a Partner's Percentage Interest shall
be determined, without audit or certification, from the books and
records of the: Partnership by the Partnership's Accountants. The
8
P 15766110742
Net Equity of a Partner's Percentage Interest shall be determined
within thirty (30) days of the day upon which the Partnership's
Accountants are apprised in writing of the Gross Asset Value of the
Project, and the amount of such Net Equity shall be disclosed to
the Partnership and each of the Partners by written notice. The
Net Equity determination of the Partnership's Accountants shall be
final and binding in the absence of a showing of gross negligence
or willful mis'onduct.
"Non -Cumulative Preferred Return" means an amount equal
to a ten percent (10%) per annum, non -cumulative (prorated for any
partial year) preferred return on the aggregate Adjusted Capital
Contributions .of the Partners commencing on the Effective Date
until the Partnership is liquidated pursuant to Article 12. The
Non -Cumulative Preferred Return shall be paid to the Partners pur-
suant to paragraph 4.02(b) only to extent Net Operating Cash Flow
is available and pursuant to paragraphs 4.05(d) and 12.02(d) only
to the extent ,het Cash Proceeds From Sales or Refinancings are
available. To the extent the Non -Cumulative Preferred Return is
not paid to the Partners in any Fiscal Year,• it shall not be
accumulated. The Non -Cumulative Preferred Return is not intended
and should not in any way be construed to be a guaranteed payment
within the mea;ring of Code section 707(c).
"Nonrecourse Deductions" has the meaning set forth in
Treas. Reg. 1.704-1T(b)(4)(iv)(b). The amount of Nonrecourse
Deductions for a Partnership Fiscal Year equals the excess, if any,
of the net increase, if any, in the amount of Partnership Minimum
Gain during that Fiscal Year over the aggregate amount of any dis-
tributions during that .Fiscal Year of proceeds of a Nonrecourse
Liability that are allocable to an increase in Partnership Minimum
Gain, determined according to the provisions of Treas. Reg. section
1.704-1T(b) (4) (iv) (b) .
" t�cr. ecourse. Liability" has the meaning set forth in
Treas. Reg. section 1.704-1T(b)(4)(iv)(k)(3).
",partners" means the Managing Partner and the other
Partners where r10 distinction is required by the context in which
the term is used herein. "Partner" means any one of the Partners.
"Ea tnershin" means the Florida general partnership
formed on the Effective Date by this Agreement.
"Partnership's Accountants" shall be Lerman and Lerman,
P.A., or such other independent certified public accounting firm
licensed in Florida which is selected by the Managing Partner.
"Partnership Capital" means the total amount of the
Capital Contributions of the Partners.
OFF.15T66110T43
REC.
"Partner Minimum Gain" means an amount, with respect to
each Partner Nonrecourse Debt, equal to the Partnership Minimum
Gain that would result if such Partner Nonrecourse Debt were
treated as a Nonrecourse Liability, determined in accordance with
Treas. Reg. section 1.704-1T(b)(4)(iv)(h).
"Partner Nonrecourse Debt" has the meaning set forth in
Treas. Reg. section 1.704-1T(b)(4)(iv)(k)(4).
"Partner Nonrecourse Deductions" has the meaning set
forth in Treas. Reg. section 1.704-1T(b)(4)(iv)(h)(3) of the Regu-
lations. The amount of Partner Nonrecourse Deductions with respect
to a Partner Nonrecourse Debt for a Partnership Fiscal Year equals
the excess, if any, of the net increase, if any, in the amount of
Partner Minimum Gain attributable to such Partner Nonrecourse Debt
during that Fiscal Year over the aggregate amount of any distribu-
tions during that Fiscal Year to the Partner that bears the econo-
mic risk of loss for such Partner Nonrecourse Debt and are allo-
cable to an increase in Partner Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Treas. Reg.
section 1.704-•1T(b) (4) (iv) (h) (3) .
"Partnership Minimum Gain" has the meaning set forth in
Treas. Reg. sections 1.704-1T(b)(4)(iv)(a)(2) and 1.704-1T(b)(4)-
(iv) (c) .
"•partnership Nonrecourse Debt" has the meaning set forth
in Treas. Reg. section 1.704-IT(b)(4)(iv)(k)(2).
"Percentage Interest" means, with respect to any Part-
ner, the percentage ownership interest of such Partner in the Part-
nership as set forth opposite its name in Section 2.03. In the
event any Percentage Interest is transferred in accordance with the
provisions of this Agreement, the transferee of such interest shall
succeed to the Percentage Interest of his transferor to the extent
it relates to .the transferred Percentage Interest.
"Prson" means any individual, partnership, corporation,
trust, or other entity.
"Prime Rate" means the prime rate announced as such from
time to time by TransAtlantic Bank, N.A., of Miami, Florida or its
successor. Any interest payable under this Agreement with refer-
ence to the Prime Rate shall be adjusted on a daily basis, based
upon the Prime Rate in effect from time to time, and shall be cal-
culated on the basis of a three hundred sixty-five (365) day year
with 12 months, each of which has the number of days designated on
the calendar applioable to the year(s) in question.
0
"Profits" and "Losses" mean, for each Fiscal Year or
other period, an amount equal to the Partnership's taxable income
or loss for such year or period, determined in accordance with Code
10
0 R E� : 15766PG0744 ti
section 703(a) (for this purpose, all items of income, gain, loss,
or deduction required to be stated separately pursuant to Code sec-
tion 703(a)(1) shall be included in taxable income or loss), with
the following Idjustments:
(1) any income of the partnership that is exempt
from federal income tax and not otherwise taken into account in
computing Profits or Losses shall be added to such taxable income
or loss;
(2) any expenditures of the Partnership described
in Code sectior. 705(a)(2)(B) or treated as Code section 705(a)(2)-
(B) expenditures pursuant to Treas. Reg. section 1.704-1(b)(2)(iv)-
(i), and not otherwise taken into account in computing Profits of
Losses pursuant to this definition shall be subtracted from such
taxable income or loss;
(3) in the event the Gross Asset Value of any
Partnership asset is adjusted as the result of an adjustment des-
cribed in paragraph (2) or (3) of the definition of Gross Asset
Value set forth in this Section 1.10, the amount of such adjustment
shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Profits or Losses;
(4) gain or loss resulting from any disposition of
the Project with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to the
Gross Asset Value of the Project, notwithstanding that the adjusted
tax basis of the Project differs from its Gross Asset Value;
(5) In lieu of the depreciation, amortization, and
other cost reco✓ery,deductions taken into account in computing such
taxable income or loss, there shall be taken into account Deprecia-
tion for such Fiscal Year or other period, computed in accordance
with the definition of Depreciation set forth in this Section 1.10;
and
(6) Notwithstanding any other provision of this
definition of Profits and Losses, any items which are specially
allocated pursuant to Sections 3.03 or 3.04 hereof shall not be
taken into account in computing Profits or Losses.
"Profits Interests" means, with respect to any Partner,
the interest in Profits as set forth opposite his name in Section
2.04.
"Regulations" means the final and temporary (but not
proposed) Tpcotde Tax Regulations promulgated under the Code, as
such regulations may be amended from time to time (including cor-
responding provision of succeeding regulations). •
"Section" means a section of this Agreement.
11
115766PGOT45
AEC.
"Tax Matters Partner" means the Managing Partner.
"VAnsfer" means, as a noun, any voluntary or involun-
tary transfer, sale, pledge, hypothecation, or other disposition
and, as a versa, voluntarily or involuntarily to transfer, sell,
pledge, hypothecate, or otherwise dispose of.
"Treas. Reg. section" means a section of the Regula-
tions.
All terms used in this Agreement which are not defined in this
Section 1.10 shall have the meanings set forth elsewhere in this
Agreement.
Article 2
CAPITAL CONTRIBUTIONS
2.01 Initial Capital Contributions. The Partners have each
contributed to the Partnership, in cash, as their Initial Capital
Contributions, the amount opposite their name on Exhibit "C"
attached hereto. In return for his or her Initial' Capital Contri-
bution, each Partner's Capital Account shall be credited by the
.amount of such Partner's Initial Capital Contribution.
2.02 Regaired Additional Capital Contributions.
(a) Capital Call. Additional Capital Contributions may
be called for by the Managing Partner by written demand upon the
Partners from time to time for any amount of funds which he be-
lieves is necessary, or appropriate to fund any operating deficits,
working capital needs, or construction cost overruns for improve-
ments to the Project. Such additional Capital Contributions shall
be payable in accordance with the Percentage Interests of the Part-
ners. Except us otherwise required by this Section 2.02, no Part-
ner shall be required to contribute any additional capital to the
Partnership.
(b) Failure to Contribute. In the event that any Part-
ner shall fail to make any such required additional Capital Contri-
bution within thirty (30) days of such written notice, then the
Managing Partner shall have the option within the fifteen (15) day
period thereafter to either: (i) make a loan to the Partnership at
the Prime Rate plus two percent (2%) in an amount up to the amount
of the requested additional Capital Contribution;iand/or (ii) make
a Capital Contribution to the Partnership in an amount up to the
amount of the requested additional Capital Contribution. In the
event that the Managing Partner does not loan and/or contribute the
entire amount ,af such required additional Capital Contribution to
the Partnership within such fifteen (15) day period, the. Partners
(including the Managing Partner) shall be required by the Managing
12
0 R C: 15766Pc0746
- 0
Partner within the thirty (30) day period thereafter to either:
(i) make loans to the Partnership in accordance with their Percen-
tage Interest at the Prime Rate plus two percent (2%), in an amount
up to the amount of the requested additional Capital Contribution
not contributed or loaned to the Partnership by the Managing Part-
ner pursuant to the prior sentence; or (ii) make a Capital Contri-
bution to the Partnership in accordance with their Percentage
Interests in nn amount up to the amount of the required additional
Capital Contz'ibution not so contributed or loaned to the Partner-
ship by the Managing Partner. To the extent a Partner does not
contribute in accordance with his Percentage Interest his propor-
tionate share of any required additional Capital Contribution
pursuant to (_ii) of the prior sentence, or if the Managing Partner
makes an additional Capital Contribution pursuant to the first
sentence of. this paragraph (b), the non-contributing Partner's
future Profits Interest shall be diluted and the contributing
Partners' future Profits Interests shall be increased in accordance
with the formula set forth in paragraph (c) below.
(c) Computation of Future Profits Interests. Beginning
on the date after the contribution of the required,additional Capi-
tal Contribution to the Partnership, the future Profits Interests
of the Partners shall be equal to the amount determined by dividing
the Net Equity of a Partner's Percentage Interest (which includes
the additional capital so contributed) on such date by the sum of
the Net Equity of all of the Partners' Percentage Interests (which
includes the additional capital so contributed) on such date; pro-
vided however, that, if all of the Partners contribute their pro-
portionate shire of the required additional Capital Contribution
pursuant to paragraph (a), any funds contributed to the Partnership
by the Partners pursuant to this Section 2.02 shall not affect the
Partners' Profits Interests. In addition, no contribution or loan
by a Partner of funds to the Partnership pursuant, to this Section
2.02 shall have any affect on the computatiop, of the Partner's
Percentage Interest.
(d) Mandatory Book -Up of Capital Accounts. To the ex-
tent any Partner fails to contribute his proportionate share of a
requested additional Capital Contribution pursuant to Section
2.02(b) above,and the Managing Partner or the Partners, as the
case may be, contribute all or a portion of such requested addi-
tional capital in return for an increase in their future Profits
Interests, the Capital Accounts of the Partners shall be booked -up
or down on the date of contribution of such requested additional
capital in accordance with the provisions of Treas. Reg. section
1.704-1(b)(2)(iv)(f) in order to properly reflect the Gross
Appraised Value of the Project on such date. A book -up or down in
Gross Asset Value reflects the manner in which the unrealized gain
or loss inherent in.the value of the Project would be allocated to
the Partners, if there was a taxable disposition of the Project for
its Gross Appraised Value on the date of such contribution.
13
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2.03 Percentage Interests. The Percentage_Interests of the
Partners shall be as set forth on Exhibit "D" attached hereto.
Unless otherwise required under this Agreement, no adjustment to
the Percentage Interest of any Partner shall be made.
2.04 Profits Interest. Each Partner's interest in Profits
("Profits Interest") shall be as set forth on. Exhibit "E" attached
hereto. Unless otherwise required under this Agreement, no adjust-
ment to the Profits Interest of any Partner shall be made.
2.05 Withdrawal of Capital. Except as otherwise provided in
this Agreement, no Partner shall be entitled to demand or receive
a return of any portion of his Capital Contributions from the Part-
nership. Under circumstances requiring a return of any Capital
Contributions, no Partner shallhave the right to receive property
other than'cash, except as may be specifically provided here.
2.06 :interest on Capital. No Partner shall receive any
interest, sala:sy or drawing with respect to his Capital Contribu-
tions or Capital Account or for services rendered on behalf of the
Partnership or otherwise in his capacity as Partner, except as
otherwise provided in this Agreement.
2.07 Additional Partners. No additional Partners shall be
admitted to the Partnership without the consent of the Managing
Partner.
2.08 Partner Loans. Except as otherwise set forth in Sectior.
2.02, no Partner shall be obligated to make any such loan or
advance to the Partnership. The Manager Partner may at any time
loan or advance funds to the Partnership. The amount of any loan
or advance by a lending Partner shall be repayable in accordance
with the provisions of Article 4 and shall bear interest at the
Prime Rate plus: two percent_(2%). Any such loan or advance shall
not affect the -applicable Partner's Percentage or Profits Interest,
but shall be treated as a debt due from the Partnership.
Article 3
ALLOCATION
3.01 Profits. After giving effect to the special allocations
set forth in Sections 3.03 and 3.04 hereof, Profits for any fiscal
year shall be allocated to the Partners in accordance with the fol-
lowing order of priority:
(a) first, to the Partners until the cumulative Profits
allocated to them pursuant to this paragraph 3.01(a) for the cur-
rent and all prior Fiscal Years are equal to the cumulative Losses
allocated to them pursuant to paragraphs 3.02(b) and (c) hereof for
all prior Fiscal Years, and in proportion to the :amount of such
Losses previously allocated to them; and
14
R . 157661$0748 0
(b) second, to the Partners in accordance with their
Profits Interest.
3.02 Lasses. After giving effect to the special allocations
set forth in°Sections 3.03 and 3.04 hereof, Losses for any Fiscal
Year shall be allocated in accordance with the following order of
priority:
(a) first, to the Partners in proportion to the amount
of and untilthe cumulative Losses allocated to them pursuant to
this paragraph. 3.02(a) for the current and all prior Fiscal Years
are equal to -.Ile cumulative Profits, if any, allocated pursuant to
paragraph 3.C1(b) for all'prior Fiscal Years and in proportion to
the amount of, such Profits previously allocated to them;
(b) to the Partners in accordance with and in propor-
tion to their positive Capital Account balances, until their
positive Capital Account balances have been reduced to zero; and
(c) then, the balance, if any, Eo the Partners in
accordance with, their Percentage Interests.
3.03 peeial Allocations. The following special allocations
shall be made in the following order of priority:
(a) Minimum Gain Charaeback. Notwithstanding any other
provision of this Article 3, if there is a net decrease in Partner-
ship Minimum Gain during any Partnership Fiscal Year, each Partner
shall be specially allocated items of Partnership income and gain
for such year (and, if. necessary, subsequent years) in an amount
equal to the portion of such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Treas. Reg.
section 1.704-.1T(b) (4) (iv) (f) , that is allocable to the disposition
of Partnership property subject to Nonrecourse Liabilities, deter-
mined Sn accordance with Treas. Reg. section 1.704-1T(b)(4)(iv)(e).
Allocations pursuant to the previous sentence shall be made in pro-
portion to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Treas. Reg. section 1.704-1T(b)(4)-
(iv)(e). This paragraph 3.03(a) is intended -to comply with the
minimum gain chargeback requirement in such section of the Regu-
lations and shall be interpreted consistently therewith.
(b) Partner Minimum Gain Charaeback. Notwithstanding
any other provision of this Article 3 except paragraph 3.03(a), if
there is a net decrease in Partner Minimum'Gain attributable to a
Partner Nonrecourse Debt during any Partnership Fiscal Year, each
Partner who has a share of the Partner Minimum Gain attributable to
such Partner Nanreco,prse Debt, determined in accordance with Treas.
Reg. section 1.704-1T(b)(4)(iv)(h)'(5), shall be specially allocated
items of Partnership income and gain for such year:(and, if neces-
sary, subsequent years) in an amount equal to the portion of such
15
1[E .15766110749 AEC
Person's share of the net decrease in Partner Minimum Gain attribu-
table to such Partner Nonrecourse Debt, determined in accordance
with Treas. Reg. section 1.704-1T(b)(4)(iv)(h)(5), that is alloca-
ble to the disposition of Partnership property subject to such
Partner Nonrecourse Debt, determined in accordance with Treas. Reg.
section 1.704•-1T(b) (4) (iv) (h) (4) . Allocations pursuant to the pre-
vious sentence shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with
Treas. Reg. section 1.704-1T(b)(4)(iv)(h)(4) of the Regulations.
This paragraph 3.03(b) is intended to comply with the minimum gain
chargeback requirement in such Treas. Reg. section and shall be
interpreted consistently therewith.
(c) Nonrecourse Deductions. Nonrecourse Deductions for
any Fiscal Year or other period shall be specially allocated to the
Partners in accordance with their Percentage Interests.
(di Partner Nonrecourse Deductions. Partner Nonre-
course Deductions for any Fiscal Year or other period shall be
allocated to the Partnerwho bears the economic risk of loss with
respect to the Partners Nonrecourse Debt to which such Partner Non -
recourse Deductions are attributable in accordance with Treas. Reg.
section 1.704-1T (b) (4) (iv) (h) .
(e) Section 754 Adiustments. Tp the extent an adjust-
ment to the adjusted tax basis of any Partnership asset pursuant to
Code section 734(b) or Code section 743(b) is required, pursuant to
Treas. Reg. section 1.704-1(b)(2)(iv)(m), to be taken into account
in determining Capital Accounts, the amount of such adjustment to
the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis) and such gain or loss shall be
specially allocated to the Partners in a manner consistent with the
manner in which their Capital Accounts are required to be adjusted
pursuant to such section of the Regulations.
(f) Eton -Cumulative Preferred Return Allocation. All or
a portion of the remaining items of Partnership' income or gain, if
any, shall be specially allocated to the Partners in proportion to
the Non -Cumulative Preferred Return distributions each has received
pursuant to paragraphs 4.02(b), 4.05(d) and 12.02(d) from the com-
mencement of the Partnership until the aggregate amounts allocated
to the Partners pursuant to this paragraph 3.03(f) for this Fiscal
Year and all previous Fiscal Years is equal to the cumulative
amount of such distributions to such Partners.
3.04 Curative Allocations to Insure Consistency with Econo-
mics of Deal. The partners intend for the economic gain in the
value of the Project after the payment of the Non -Cumulative Pre-
ferred Return to be shared by the Partners in accordance with their
Profits Interests and that Net Cash Proceeds From Sales and Refi-
16
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nancing should be distributed to the Partners in a manner which
reflects such economic gain. In addition, Losses should be borne
by the Partners based upon their Percentage Interests. The tax
allocation provisions set forth in this Agreement are intended to
produce final capital account balances that are at levels ("Target
Final Balances") which permit distributions of Net Cash Proceeds
From Sales or Refinancings pursuant to Section 12.02 to be made in
a manner which reflects such economic gain or loss. To the extent
that the tax allocation provisions of this Agreement would not pro-
duce such Target Final Balances and result in an economic distor-
tion, the Managing Partner is'hereby authorized, based upon the
advice of the Partnership's Accountant or tax counsel, to amend the
Agreement to make the necessary allocations of items of income,
gain, loss or deduction in order to produce such Target Final Bal-
ances; moreover, to the extent that prospective amendments do not
reach such a result, the Managing Partner shall have the authority
to amend prior Partnership income tax returns to reallocate items
of income, gain, loss or deduction in order to minimize any econo-
mic distortions resulting from the tax allocations. For purposes
of applying the foregoing sentence, allocations pursuant to this
Section 3.04 shall only be made to the extent the Managing Partner
reasonably det.ermines that allocations under this Agreement will
otherwise be :inconsistent with the economic agreement among the
parties to this Agreement.
3.05 General.
(a) ' Except as otherwise provided in this Agreement, all
items of Partnership income, gain, loss, deduction, and any other
allocations nc•t otherwise provided for shall be divided among the
Partners in the same proportions as they share Profits or Losses,
as the case may be, for the year.
(b) The Partners are aware of the income tax conse-
quences of the' allocations made by this Article 3 and hereby agree
to be bound by the provisions of this Article 3 in reporting their
shares of Partnership income and loss for income tax purposes.
(c) For purposes of determining the Profits, Losses, or
any other items allocable to any period, Profits, Losses, and any
such other items shall be determined on a daily, monthly, or other
basis, as determined by the Tax Matters Partner using any permissi-
ble method under Code section 706 and the regulations thereunder.
3.06 Tax Allocations: Code section 704(c). In accordance
with Code section 704(c) and the Regulations thereunder, income;
gain, loss, and deduction with respect to any property contributed
to the capitalof the Partnership shall, solely for tax purposes,
be allocated among the Partners so as to take account of any varia-
tion between the adjusted basis of such property to the Partnership
for federal income tax purposes and its initial Gross Asset Value.
17
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OFf. 15766N 0751
REC.
In the event the Gross Asset Value of the Project is adjusted
or treated as adjusted pursuant to paragraph (2)-of the definition
of Gross Asset Value, i.e., in the case of a failure of a Partner
to contribute a proportionateshare of a required additional Capi-
tal Contribution pursuant to Section 2.02, subsequent allocations
of income, gain, loss, and deduction with respect to such asset
shall take account of any variation between the adjusted basis of
the Project for federal income tax purposes and its Gross Asset
Value in the same manner as under Code section 704(c) and the Regu-
lations thereunder.
Any elections or other decisions relating to such allocations
shall be made,":,y the Managing Partner in any manner that reasonably
reflects the purpose and intention of this Agreement. Allocations
pursuant to this Section 3.06 are solely for purposes of federal,
state, and local taxes and shall not affect/ or in any way be taken
into account in computing, any Person's Capital Account or share of
Profits, Losses, other items, or distributions pursuant to any pro-
visions of this Agreement.
3.07 Tax Status. Each of the Partners hereby recognize that
the Partnership will be subject 'to all provisions of Subchapter K
or Chapter 1 of Subtitle A of the Code.
Article 4
DISTRIBUTIONS OF NET CASH FLOW
4.01 Est Operating Cash Flow Defined. As used in this Agree-
ment, the term "Net Operating Cash Flow" for each Fiscal Year of
the Partnership shall mean the total cash receipts of the Partner-
ship received, during such year from the operation of the Partner-
ship's business ("Operating Receipts"), less those items, listed in
paragraphs 4.01(a) through (d). Operating Receipts include '(but
are not limited to) cash receipts from the rental of tenant space
in the Project, business interruption insurance, other incidental
income attributable to or resulting from the operation of the Pro-
ject, and amounts previously held in reserve which are deemed by
the Managing Partner to no longer be required to be reserved.
operating Receipts do not include cash receipts_of the Partnership
attributable to events which generate Net Cash Proceeds From Sales
or Refinancings, Partnership loans, Partner loans or Capital
Contributions to the Partnership.
For purposes of calculating Net Operating Cash Flow, the fol-
lowing items which are paid out of Operating Receipts shall be
deducted from Operating Receipts:
(a) all expenses, including interest expense, of the
Partnership incurred:in connection with the ownership and operation
of the Project, other than any expense not involving a cash expen-
18
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REC.
diture such as any amount charged for depreciation, amortization,
or cost recovery deductions;
(b) all principal payments on account of any loans made
to the Partnership or secured by the Project, other than loans from
a Partner to the Partnership;
(c) any sums expended by the Partnership for capital
improvements; and
(d) any amounts that are set aside as reserves by the
Managing Partner as he reasonably determines.
4.02 Net Operating Cash Flow. Net Operating Cash Flow shall
be distributed in the following order of priority:
(a) first, to the payment of Partner loans to the Part-
nership, if any, owed to any of the Partners in proportion to the
outstanding balances of such loans;
(b) second, to the Partners until they receive an amount
equal to and in proportion to their Non -Cumulative' Preferred Return
for such Fiscal Year; and,
(c) third, the remaining balance, if any, to the Part-
ners in accordance with their Profits Interest as set forth in Sec-
tion 2.04.
At the time of any distribution of the Net Operating Cash Flow, the
Partnership must have available to its unencumbered cash funds suf-
ficient for such distribution after taking into account (except in
the case of 13quidation of the Partnership) the amounts which the
Managing Partner determines should be set aside to provide a rea-
sonable reserve for the continuing conduct of the business of the
Partnership and for normal working capital.
4.03 Computation of Net Operating Cash Flow. Net Operating
Cash Flow shall be computed by the Partnership's Accountants after
consultatipn with the Managing Partner within ninety (90) days
following the close of the prior Fiscal Year.
4.04 Distribution of Net Operating Cash Flow. The Net Oper-
ating Cash Flow shall be distributed, at such times as the Managing
Partner shall determine.
4.05 Net Cash Proceeds From Sales or Refinancing. Except as
provided in Article 12, the Net Cash Proceeds From Sales or Refi-
nancings shall be distributed, at such times as the Managing
Partner shall deterinine, in the following order of priority:
19
0
p e.15766PG0753
(as) first, to the payment of the debts and liabilities
of the Partnership then due and owing to creditors other than any
amounts owed to the Partners;
(b) second, to the payment of any Partner loans to the
Partnership, Y.f any, in proportion to the outstanding balances of
such loans;
(c) third, to the Partners until their Adjusted Capital
Contribution are reduced to zero;
(d) fourth, to the Partners in an amount equal to and
in proportion, to their Non -Cumulative Preferred Return for the
applicable Fiscal Year, over the sum of all prior distributions to
the Partners pursuant to paragraph 4.02(b) for such Fiscal Year;
(e.) fifth, to the Partners in accordance with and in
proportion to their Capital Account balances; and
(f) sixth, the balance to the Partners in accordance
with their Profits Interests.
4.06 Distribution Amona Partners. If a Permitted Transfer,
pursuant to Article 8 or 9 hereof, of a Percentage Interest in the
Partnership occurs during any accounting period, Profits, Losses,
each item thereof, and all other items attributable to such Inter-
est for such period shall be divided and allocated between the
transferor and. the transferee by taking into account their varying
interests during the period in accordance with Code section 706(d),
using any conventions permitted by law and selected by the Managing
Partner. Al: distributions on or before the date of a Permitted
Transfer shall be made to the transferor, and all distributions
thereafter shall be made to the transferee. Solely for purposes of -
making such allocations and distributions, the Partnership shall
recognize a Permitted Transfer not later than the end of the calen-
dar month during which it is given notice of such Transfer, pro-
vided that if the Partnership does not receive a notice stating the
date such Interest was transferred and such other information as
the Managing Partner may reasonably require within thirty (30) days
after the end'of the accounting period during_which the transfer
occurs, or if a Transfer is not a Permitted Transfer, then all of
such items shall be allocated, and all distributions shall be made,
to the Person who, according to the books and records of the Part-
nership, on the last day of the accounting period during which the
Transfer occurs, was the owner of the Percentage Interest. The
Managing Partner and the Partnership shall incur no liability for
making allocations and distributions in accordance with the provi-
sions of this Section 4.06, whether or not the Managing Partner or
the Partnership has knowledge of any Transfer of ownership of any
Percentage Interest°in the Partnership.
20
E l 5T66U 0754
REC.
Article 5
ACCOUNTING. AND RECORDS
5.01 Books and Records. The Partnership shall maintain at
its principal place of business separate books of account for the
Partnership which shall show a true and accurate record of all
costs and expenses incurred, all charges made, all credits made and
received, and all income derived in connection with the operation
of the Partnership business in accordance with generally accepted
accounting principles consistently applied. The Partnership shall
use the method of accounting chosen by the Partnership's Accoun-
tants in preparation of its annual reports and for tax purposes and
shall keep its books accordingly. The expenses chargeable to the
Partnership shall include only those which are reasonable and
necessary for the ordinary and efficient operation of :Lhe Partner-
ship business and the performance of the obligations,cf the Part-
nership under any agreement relating to the business of the Part-
nership. Each Partner, or its authorized representative, shall, at
the expense of such Partner, have the right at any time, upon
reasonable notice to the Managing Partner, to examine and/or copy
the Partnership's books and records during normal business hours.
5.02 Reports. The Managing Partner shall be responsible for
the preparation of financial reports of the Partnership and the
coordination of financial matters of the Partnership with Partner-
ship's Accountants. Within ninety (90) days after the end of each
Fiscal Year, the Managing Partner shall cause the Partnership's
Accountants to furnish to the Managing Partner a copy of the
balance sheet of the Partnership as of the last dayof the fiscal
year and a statement of.income or loss for the Partnership for such
period. Annual statements shall also include a statement showing
any item of income,' deduction, credit or loss allocable for federal
income tax purposes pursuant to the terms of this Agreement.
Annual statements shall be compiled ana reviewed by the
Partnership's Accountants.
5.03 Tax Returns. The Managing Partner shall cause the Part-
nership's Accountants to prepare all income and other tax returns
of the Partnership and shall cause the same to be filed on a timely
basis. The Managing Partner shall cause the Partnersh.ip's Accoun-
tants to furnish to each Partner a copy of each such return, toge-
ther with any schedules or other information which such Partner may
reasonably require in connection with such Partner's own tax
affairs.
5.04 Tax and Accounting Decisions. All tax and accounting
decisions and elections shall be made by the Managing Partner based
on the advice of the Partnership's Accountants or counsel.
5.05 Special Basis Adiustment. In connection with any Per-
mitted Transfer of a Partnership Percentage Interest, the Partner-
21-
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OFF. d 5766110755
REC.
ship shall, at the written request of either the transferor or the
transferee, on behalf of the Partnership and at the time and in the
manner provided in Treas. Reg: section 1.754-1(b), elect on its
federal income tax return to adjust the basis of the Partnership's
assets in the manner provided in sections 734(b) and 743(b) of the
Code, and such transferee shall pay all costs incurred'by the Part-
nership in connection therewith, including, without limitation,
reasonable attorneys' and accountants' fees.
5.06 Tax Matters Partner. The Managing Partner shall serve
as the Partnership's "Tax Matters Partner" within the meaning of
Code section 6231(a)(7) and thus shall be the party designated to
receive all notices from the Internal Revenue Service. He shall
have all the powers and duties expressly conferred on E. tax matters
partner by the Code and shall be entitled to be reimbursed for all
customary and reasonable expenses incurred by him on behalf of the
Partnership.
5.07+'iscal Year. The Fiscal Year of the.Partnership shall
be the calendar year. As used in this Agreement,, the Fiscal Year
shall include any partial: calendar year at the beginning and end of
the Partnership term. . .
5.08 Bank Accounts. The Managing Partner shall have fiduci-
ary responsibility for the safekeeping and use of all funds and
assets of the Partnership, whether or not in his immediate posses-
sion or control. The funds of the Partnership shall not be commin-
gled with the funds of any other Person and the Managing Partner
shall not employ, or permit any other Person to employ, such funds
in any manner except for the benefit of the Partnership. The bank
accounts of the Partnership shall be maintained in such banking
institutions as are chosen by the Managing Partner and withdrawals
shall be made only in the -regular course of Partnership business
and as otherwise authorised in this Agreement on such signature or
signatures as the Managing Partner may determine.
5.09 Management Agreement. The Partners agree to enter into
a separate Management Agreement with an Affiliate of :he Managing
Partner. Such Management Agreement shall in form and !substance be
in accordance with the terms and provisions of the attached Exhibit
"F". The Managing Partner shall have the sole and exclusive right
to terminate such Management Agreement and enter into a neck manage-
ment agreement with any Person, whether Affiliated or non -Affilia-
ted with the Managing Partner, as he deems necessary and appropri-
ate.
5.10 Partnership's Accountants and Counsel. The Managing
Partner shall have, he sole and exclusive right to select and ter-
minate the Partnership's Accountants and legal counsel for any
accounting or legal matter involving the Partnership.,
22
RAOFf. '
66110756 -
Article 6
MANAGEMENT
6.01 Day -to -Day Management by Partners. The Managing Partner
shall be under a fiduciary duty to conduct and manage the affairs
of the Partnership in the best interests of the Partnership and of
the other partners including the safekeeping and use of the Project
for the exclusive benefit of the Partnership. Except as otherwise
provided herein, the Managing Partner shall have the sole and
exclusive right to manage and control the business of the
Partnership and shall have all of the rights and powers which may
be possessed by a general partner under the Act including, without
limitation, the right and power to:
(a; expend the capital and income of the Partnership to
the extent permitted by this Agreement;
(bi negotiate, enter in and supervise the performance
of contracts or agreements with architects, engineers, surveyors,
attorneys, lobbyists, contractors, subcontractors and other persons
whose services, labor or materials may be required in furtherance
of the businv3s purposes of the Partnership;
(c) perform any and all acts necessary or appropriate
to acquire, expand, improve, maintain, lease, repair, operate and
manage the Project;
(d) take and hold real property and personal property
of the Partnership, in the Partnership name;
(e) execute and deliver on behalf of and in the name of
the Partnership, or in the name of a nominee- of the Partnership•,
deeds, bills of sale, deeds of trust, mortgages, notes, leases,
ground leases; subleases, licenses, rental agreements, occupancy
agreements, and/or use agreements of or with respect to all or a
portion of the Project, and any and all other instruments necessary
or incidental to the conduct of the Partnership's business includ-
ing, but not limited to, any instruments or documents necessary to
obtain construction or permanent financing as authorized in Article
7;
(f► control and manage the Project and arrange for the
construction, repair, financing, refinancing, collections, dis-
bursements, maintenance, leasing and other matters necessary or
desirable in connection with the operation of the Partnership's
business;
(g). obtain all governmental, zoning and utility appro-
vals, consents, permits or certifications which may be necessary or
.advisable in connection with the Project and the operation of the
Partnership's business; -
23
OFF.15766PG0757 (J
REC.
(h) undertake such actions as are necessary, advisable
or desirable in order that the Partnership shall promptly comply
with all material, present and future laws, ordinances, orders,
rules, regulations and requirements of all governmental authorities
having jurisdiction, which may be applicable to the Partnership or
the Project;
(i) employ and dismiss from employment, retain or
otherwise secure employees, independent contractors or personnel
necessary to carry out the purposes of the Partnership;
(j) delegate all or any of his rights or duties here-
under and in furtherance of any such delegation, to appoint, employ
or contract with any Person the Managing Partner may in its sole
discretion deem necessary or desirable, including. Affiliates of the
Managing Partner; provided, however, that any.such delegation to an
Affiliate of the Managing Partner is evidenced by a written con-
tract pursuant to which terms are on an arm's-length basis. Such
Persons may, under the supervision of the Managing Partner, perform
any of the following or other acts or services for the Partnership
as the Managing Partner may approve, except that the Managing Part-
ner shall continue to be primarily responsible for the performance
of all such obligations; serve as the Partnership's advisor and
consultant in.connection with policy decisions made by the Managing
Partner; act as managers, consultants, correspondents, brokers,
architects, contractors, subcontractors, engineers, escrow agents,
or in any other capacity deemed by the Managing Partner necessary
or desirable; investigate, select and, for the behalf of the Part-
nership, conduct relations with Persons acting in such capacities
and pay appropriate fees to, and enter into appropriate contracts
with, or employ or retain any of them to render services in connec-
tion with the Partnership's business; and perform or assist in the
performance of administrative or managerial functions necessary in
the management of the Partnership;
(k) ask for, collect and receive any rents, issues and
profits or income from the Project, or any part or parts thereof,
and to disburse Partnership funds for Partnership purposes to those
persons entitled to receive same;
(lj purchase from or through others, contracts of lia-
bility, casualty or other insurance for the protection of the pro-
perties or affairs of the Partnership or the Partners, or for any
purpose convenient or beneficial to the Partnership;
(m) pay all taxes, licenses or assessments of whatever
kind or nature imposed upon or against the Partnership or the Pro-
ject, and for such purposes to make such returns and do all other
such acts or things as may be deemed necessary and advisable by the
Partnership;
24
Orr.15766PG0758
REc.
(n) establish, maintain and supervise the deposit of
any monies or securities of the Partnership with federally insured
banking institutions or other institutions as may be selected by
the Managing Partner, in accounts in the name of the Partnership
with such institutions;
(o'• institute, prosecute, defend, settle, compromise
and dismiss lawsuits or other judicial or administrative proceed-
ings brought can or in behalf of, or against, the Partnership or the
Partners in connection with the activities arising out of, connec-
ted with, or incidental to this Agreement, and to engage counsel or
others in connection therewith;
(p) execute for and on behalf of the Partnership, and
with respect +:o the Project, all such applications for permits and
licenses as the Managing Partner deems necessary and advisable;
(q) take any action necessary or appropriate for the
continuation of the Partnership's valid existence as a general
partnership under the laws of the State of. Florida; and
(r) conduct the affairs of the Partnership with the
general objective of financial gain in accordance with the business
purpose of they Partnership set forth in Section 1.04.
6.02 Information Requirement. The Managing Partner shall
advise and inf`•orm the other Partners of any transaction, notice,
event or proposal which he reasonably believes could significantly
or adversely:: affect the Project or the operation of the
Partnership's business.
6.03 Insurance Coverage. The Managing Partner shall procure
and maintain or cause to be procured and maintained, insurance suf-
ficient to envble the Partnership to comply with applicable laws,
regulations and financing requirements.
6.04 Reimbursement of Expenses. The Managing Partner shall
be entitled to be reimbursed for all reasonable and documented out-
of-pocket expenses which are incurred by him on behalf of the Part-
nership in connection with the Partnership's business. Reimburse-
ment expenses shall be paid as an expense of the Partnership after
debts to non -partners have been repaid, but prior to the repayment
of any Partner loans or advances.
6.05 Managing Partner's Activities. The Managing Partner
shall devote so much of his time and effort to the Partnership's
business as he deems to be necessary and advisable for the proper
management and supervision of the Partnership's business, but he
shall have no obligation to manage the Partnership as his sole and
exclusive business. The Partners and/or any of their Affiliates
have and will continue to have other businesses and may engage in
activities other than those relating to the Partnership, some of
25
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REC.
which may be comparable to, or competitive with, the business of
the Partnership. Nothing in this Agreement shall create in the
Partnership or. any Partner any right, title. or interest in or to
such independent ventures or in the income or proceeds derived
therefrom or create any other obligations or liabilities on the
part of such Partner to the Partnership or to the other Partner by
reason thereof.
6.06 Compensation. Except as otherwise provided for in this
Agreement, no Partner shall receive any salary, fee or draw for
services rendered by he or she on behalf of the Partnership.
6.07 Successor Menacing Partner. In the event of Natan Rok's
death, disability, or Event of Bankruptcy, Sergio Rok shall -replace
Natan Rok as Managing Partner. Such Successor Managing Partner
shall have the rights and privileges and be required to perform the
same obligations as the Managing Partner.
Article 7
FINANCING
The Managing.Partner shall be authorized to obtain construc-
tion or permanent financing form time to time as the Managing
Partner shall deem necessary for the alteration, construction.,
improvement, development and renovation of the Project. Such
financing shall be on such terms and conditions and at such rate of
interest as the Managing Partner determines to be acceptable. Such
financing may be on a secured or unsecured basis from reputable and
financially responsible lending institutions or third parties. The
Partners hereby agree to pledge their Percentage Interests as col-
lateral and to individually and severally guaranty the repayment of
a portion of any recourse borrowings of the Partnership in propor-
tion to their'Percentage Interests. Such a pledge by a Partner to
a lending institution shall not be subject to the conditions and
restrictions on Transfer set forth in Article 8. The Partners
hereby agree' to execute any and all documents requested by the
Managing Partner in connection with the obtaining financing pur-
suant to this Article 7. All customary and reasonable expenses
incurred in connection with such interim and permanent financing
shall be paid out of loan proceeds, including any normal and
customary brokerage fee.
M
26
1 15766PG0760
Article 8
TRANSFERS OF INTERESTS; WITHDRAWALS
8.01 Restrictions on Transfers.
(s.) General. Except in the case of the Partner's
pledging of his Percentage Interest to lending institutions pur-
suant to Article 7 or except as otherwise provided in this Agree-
ment, aPartner's right to Transfer all or any portion of his Per-
centage Interest in the Partnership by means of a Permitted Trans-
fer shall be subject to the conditions and restrictions set forth
in this Section 8.01.
(b) Definition of Permitted Transfer; Permitted Trans-
feree.
(1) a "Permitted Transfer" is a Transfer by a
Partner of all of his Percentage Interest in the Partnership to a
Permitted Transferee, provided that such Transfer otherwise com-
plies with the conditions and restrictions of this Section 8.01;
(2) a "Permitted Transferee" of a Partner is any
Person who is (1) a Personal Representative of such Partner or (ii)
any Person approved as a Permitted Transferee by the Managing Part-
ner, which approval may be withheld in the sole and absolute dis-
cretion of th.a Managing Partner; and
(3) a Partner's "Personal Representative" means
any Person who.succeeds.to such Partner's Percentage Interest as a
result of an Event of Bankruptcy and any transferee of such Part-
ner's Percentage Interest from any such Person. Such Person in-
cludes the transferor's executor, administrator, ,trustee or -per-
sonal representative to whom such Interest is transferred at death,
as a result of,mental or physical incompetency or involuntarily by
operation of law.
(c). Conditions to Permitted Transfers. A Transfer
otherwise permitted under this Section 8.01 shall not be a Permit-
ted Transfer and any attempted Transfer of a Partner's Percentage
Interest to a Permitted Transferee shall be null and void and of no
effect whatever unless and until the following conditions are
satisfied:
(1) except in the case of a Permitted Transfer to
a Partner's Personal Representative, the transferor and transferee
shall have executed such documents and instruments of conveyance
and assumption as may be necessary or appropriate in the opinion of
counsel to the Part;ership to effect such Transfer and to confirm
the Permitted Transferee's agreement to be bound by the terms and
conditions of this Agreement and, in particular, the assumption of
all monetary obligations of the transferor Partner with respect to
27
111E. 15766110761.
REC
the Percentage Interest being transferred and the transferor Part-
ner's agreement to guarantee the prompt payment and performance of
such assumed obligations. In any case not described in the pre-
ceding sentence, the transfer shall be confirmed by presentation to
the Partnership of legal evidence of such Transfer, in form and
substance satisfactory to the Partnership.
(2) except in the case of a Permitted Transfer to
a Partner's Personal Representative, the Partnership may require
prior to such Transfer, an opinion of counsel satisfactory to the
Partnership confirming that such Transfer will not terminate the
Partnership for federal income tax purposes.
(3) a Partner making a Permitted Transfer of all
or a portion of his'Percentage Interest and the Permitted Transfer-
ee thereof shall pay all reasonable costs and expenses incurred by
the Partnership in connection with such Transfer.
(d) ,Admission of Permitted Transferee as a Partner. A
Permitted Transferee of Percentage Interest in the Partnership
shall be admitted as a Partner in the Partnership.
(e) Effect of Permitted Transfer on'Partnership. The
Partners intend that the Permitted Transfer of a Percentage Inter-
est in the Partnership shall not cause the dissolution of the Part-
nership under the Act; however, notwithstanding any such dissolu-
tion, the Partners shall continue to hold the Partnership's assets
and operate its business in partnership form under this Agreement
as if no such dissolution had occurred.
8.02 povenant Not to Withdraw or Dissolve. Notwithstanding
any provision of the Act, each Partner hereby covenants and agrees
that the Partners have entered into this Agreement based on their
mutual expectation that all Partners wiLl continue as Partners and
carry out the duties and obligations undertaken by them hereunder
and that, except as otherwise expressly required or permitted here-
by, no Partner shall withdraw or retire from the Partnership, be
entitled to demand or receive a return of his Capital Contributions
or Profits (or a bond or other security for the return of such Con-
tributions or Profits), or exercise any power under the Act to dis-
solve the Partnership.
8.03 Consequences of Being a Breaching Partner. Notwith-
standing anything to the contrary in the Act, if a Partner (a
"Breaching Partner") (i) attempts to withdraw from the Partnership
or dissolves the Partnership in breach of Section 8.02 or (ii) is
subject to an Event of Bankruptcy, the Partnership shall continue
and such Breaching partner shall be subject to this Section 8.03.
In such event, the fpllowing shall occur:
28
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(a) the Breaching Partner shall immediately cease to be
a Partner andshall have no power to act for or bind the Partner-
ship;
(b) the Breaching Partner shall be liable for damages,
without requirement of a prior accounting, to the Partnership for
all costs and liabilities that the Partnership or any Partner may
incur as a result of such breach;
(c) the Partnership shall have no obligation to pay to
the Breaching Partner his Capital Contributions, or Profits, but
may, by notice! to the Breaching Partner within thirty (30) days of
his or her br.sach, elect to make Breach Payments (as hereinafter
defined) to the Breaching Partner in complete satisfaction of his
Percentage Interest in the Partnership;
(d) if the Partnership does not elect and is not other-
wise required to make Breach Payments pursuant to paragraph 8.04(c)
above, the Partnership shall treat the Breaching Partner as if he
were an unadmitted assignee of the Percentage Interest of the
Breaching Partner with no right to act for or bind the Partnership,
or otherwise interfere in the Partnership's operations, and shall
make allocations and distributions to the Breaching Partner only of
those amounts otherwise payable hereunder with respect to such
Interest;
(e)' the Partnership may apply any distributions other-
wise payable with respect to such Interest (including Breach Pay-
ments) to sat:Lsfy, any claims it may have against the Breaching
Partner;
(f) in the event the breaching event is an attempt to
withdraw or dissolve the Partnership, the Breaching Partner shall
have no right to inspect the Partnership's books or records or
obtain other information concerning the Partnership's operations;
(g) the Breaching Partner shall continue to be liable
to the Partnership for any unpaid Capital Contributions required
hereunder with respect to such Interest and to be jointly or sever-
ally liable (whichever the case may be) with the -other Partners for
any debts and liabilities (whether actual or contingent, known or
unknown) of the Partnership existing at the time the Breaching
Partner withdraws or dissolves; and
(h) notwithstanding anything to the contrary herein -
above provided, unless the Partnership has elected or is required
to make Breach Payments to the Breaching Partner in satisfaction of
his Percentage Interest, the Partnership may offer and sell the
Percentage Interest pf the Breaching Partner to any other Persons
on the Breaching Partner's behalf, provided that any Person acquir-
ing such Interest becomes a Partner with respect to such Interest
and agrees to perform the duties and obligations imposed by this
29
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Agreement on the Breaching Partner. The purchase price must be an
amount which is at least equal to eighty percent (80%) of the Net
Equity of the Breaching Partner's Percentage Interest on the date
of breach; provided that, the terms and conditions of such purchase
are not maniff:stly unreasonable.
8.04 Breach Payments. For purposes hereof, Breach Payments
shall be made in five installments, equal to one -fifth of the
Breach Amount, payable one -fifth within ninety (90) days of the
event causing the breach and the remainder annually for the next
four years on the anniversary date of the breach by the Breaching
Partner, with simple interest accrued from the date of such breach
through the date of each such installment is paid on the unpaid
balance of sumh Breach Amount at the Prime Rate plus one percent
(1%). The Breach Amount shall be an amount equal to the greater of
One Dollar or seventy-five (75%) of the Net Equity of the Breaching
Partner's Percentage Interest on the day of such breach, based on
the Gross Appraised Value of the Project on such day. As permitted
by Treas. Reg. section 1.736-1(b)(5)(iii), payments made pursuant
to this Section 8.04 shall be treated as payments made in liquida-
tion of a Partner's interest in the Partnership pursuant to Code
section 73¢(a), unless the Tax Matters Partner desires for such
payments to be treated as Code section 736(b) payments. Subject to
the terms and conditions set forth in this Article 8, the Managing
Partner and the other Partners may agree to purchase in accordance
with the right of first refusal procedure set forth in Article 9 to.
purchase the .Percentage Interest of the Breaching Partner rather
than have the Partnership make such purchase. The Partnership or
purchasing Partners, as the case may be, may, at their sole
election, prepay all or any portion of the Breach Payments or
interest accrued thereon at any time without penalty.
8.05 No Bonding. Notwithstanding anything to the contrary in
the Act, if, under paragraph 8..03(d) above, the Partnership treats
"a. Breaching Partner as an unadmitted assignee of a Percentage
Interest in the Partnership, the Partnership shall not be obligated
to secure the value of the Breaching Partner's Percentage Interest
by bond or otherwise; provided, however, that if a court of compe-
tent jurisdiction determines that, in order to continue the busi-
ness of the Partnership such value must be so secured, the Partner-
ship may provile such security. If the Partnership provides such
security, the 13reaching Partner shall not have any right to parti-
cipate in Partnership Profits or Distributions during the term of
the Partnership, or to receive any interest on the value of his
Percentage Interest. For this purpose, the value of the Percentage
Interest of the Breaching Partner shall be the greater of One Dol-
lar or seventy-five percent (75%) of the Net Equity of such Inter-
est as of the affective date of the Breaching Partner's withdrawal.
30
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REC.
Article 9
RIGHT OF FIRST REFUSAL
9.01 Richt of First Refusal. Except as otherwise permitted
by Article 8 hereof, no Partner shall Transfer his Percentage
Interest (the "Offered Interest") unless such Partner (the "Sel-
ler") first offers to sell the Offered Interest pursuant to the
terms of this Article 9.
(a) Limitations on. Transfers. No Transfer may be made
under this Article 9 unless the Seller has received a bona fide
written offer (the "Purchase Offer") from the proposed transferee
of the Offered Interest (the "Purchaser") to purchase the Offered
Interest for a purchase price (the "Offer Price") denominated and
payable in United States dollars at closing or according to speci-
fied terms, wi':h or without interest, which offer shall be in writ-
ing signed by the Purchaser and shall be irrevocable for a period
ending no sooner than the day following the end of the Offer Per-
iod, as hereinafter defined.
(b) Offer Notice. Prior to making any Transfer that is
subject to the terms of this Article 9, the Seller shall give to
the Managing Partner and each other Partner (the "Other Partners")
written notice (the "Offer Notice") which shall include the follow-
ing: (1) the identity of the Purchaser; (2) a copy of the Purchase
Offer; (3) a statement signed by the Purchaser to the effect that,
upon purchase of the Offered Interest, the Purchaser agrees to
become a Partner, to be bound by all of the terms and conditions of
this Agreement, as a Partner with respect to the'Offered Interest,
and to execute such documents and instruments as the Managing Part-
ner deems necessary or appropriate to confirm such agreements; and
(4) an offer '(the "First Offer") to sell for the Offer Price the
Offered Interest to the Partners pursuant to the terms of this
Article 9, payable according to the same terms as those contained
in the Purchase Offer, provided that the First Offer shall be made
without regard to the requirement of any earnest money or similar
deposit required of the Purchaser prior to closing, and without
regard to any security (other than the Offered Interest) to be
provided by tha Purchaser for any deferred portion of the offer
Price.
(c) Offer Period. The First Offer shall be irrevocable
for a period (the "Offer Period") commencing on the day following
the day of the Offer Notice and ending at the expiration of the
last day permitted under either paragraphs (d) or (e) below (as the
case may be) to accept the Purchase offer.
(d) Acceptance of First Offer by Managing Partner. At
any time during the first twenty (20) days of the Offer Period, the
Managing Partner may accept the First offer as to all or any por-
tion of the Offered Interest by giving written notice to the Seller
31
a
OFF. 157661$0765
REC.
and the Other Partners of such acceptance. In the event that the
Managing Partner elects to accept the First Offer with respect to
all of the Offered Interest within twenty (20) days of the begin-
ning of the .Offer Period, the First Offer shall be deemed to be
accepted. If the Managing Partner does not elect to purchase the
entire Offered Interest on or before such date, the portion of the
offered Interest which the Managing Partner does not elect to
purchase (the "Remaining Offered Interest")shall be deemed to be
offered to the Other Partners upon the same terms and conditions as
set forth under paragraph (b) above, adjusted on a pro-rata basis,
for any Offered Interest elected to be purchased by the Managing
Partner.
“e) Acceptance of Rem Ding Offered Interest by Other
Partners. Within twenty (20) days after the twenty (20) day period
described in paragraph (d) above, the Other Partners may elect to
purchase on a pro-rata basis based upon their Percentage Interests,
inter se, the entire Remaining Offered Interest by giving written
notice of such election to the Seller, Managing,Partner, and each
of the other Partners. In the event all of the Other Partners
agree to purchase the entire Remaining Offered Interest, the First
Offer shall be deemed to be accepted. In the event that all of the
Other Partners. do not elect to purchase their proportionate share
of the Remaining Offered Interest, the portion of the Remaining
Offered Interest not elected to be purchased shall be deemed to be
offered to the electing Other Partners on a pro-rata basis based
upon their Percentage Interests, inter se; provided however, that
the twenty (20) day period to elect to purchase shall be reduced to
five (5) days.' In the event that such Other Partners agree to
purchase their proportionate share of such Remaining Offered
Interest in accordance with the immediately preceding sentence, the
First Offer shall -be deemed to be accepted. If any of such
electing Other Partners do not elect to purchase their propor-
tionate share of such Remaining Offered Interest, the five (5) day
period procedure described in this paragraph (e) to purchase the
Remaining Offered Interest shall continue to be utilized to deter-
mine whether any of the electing Other Partners (who elected to
purchase their proportionate shares of the Remaining Offered Inter-
est not elected to be purchased by the electing other Partners
pursuant to the prior sentence) desire to purchase the portion of
the Remaining Offered Interest not otherwise purchased pursuant to
this paragraph (e). If the offer to purchase the entire Seller's
Percentage Interest is not deemed to be accepted by the Managing
Partner and/or Other Partners (as the case may be) pursuant to the
procedure described in either paragraphs (d) above or this
paragraph (e), the First Offer shall be deemed to be rejected and
the Seller shallbe free to sell his entire Percentage Interest to
the Purchaser.,
. ---- - -- -- N
(f) Closing of Purchase of First Offer By Managing
Partner and/or Other Partner. In the event the First Offer is
deemed to be accepted in accordance with paragraph (d) or (e),
32
0
Kt: 15766Pl0766
REC.
above, the closing of the sale of the Offered Interest and Remain-
ing Offered Interest (as the case may be) shall take place within
sixty (60) days after the expiration of the Offer Period or, if
later, the date of closing set forth in the Purchase Offer. The
Seller, Managing Partner and all electing Other Partners shall
execute such documents and instruments as may be necessary or
appropriate to effect the sale of the Offered Interest to the Man-
aging Partner and Remaining Offered Interest to the Other Partners
(as the case may be).
(g) Sale to Purchaser. If the First Offer is deemed to
be rejected in accordance with paragraph (e) above, the Seller may
sell the Offered Interest and Remaining Offered Interest to the
Purchaser at any time within sixty (60) days after the last day of
the Offer. Period,providedthat such sale shall be made to the
Purchaser on the same terms contained in the Purchase Offer and
provided further that such sale complies with the other terms,
conditions, and restrictions of this Agreement that are applicable
to sales of Interests and are not expressly made inapplicable to
sales occurring under this Article 9. In the event that the
Offered Interest and Remaining Offered Interest is not sold in
accordance with the terms of the preceding sentence, the Offered
Interest and Remaining offered Interest shall again become subject
to all of the conditions and restrictions of this Article 9.
Article 10
REPRESENTATIONS AND WARRANTIES
10.01 General. Each Partner hereby represents and warrants to
the Partnership as follows:
(&) Such Partner has adequate meano of providing for
his current needs and .possible personal contingencies, and has no
need for liquidity of his investment in the Partnership;
(b) Such Partner can bear the economic risk of losing
his entire investment in the Partnership;
(c) Such Partner is acquiring his Percentage Interest
for his own account, for investment only and not with a view toward
the resale or distribution thereof;
(d) Such Partner alone, or in conjunction with his
personal advisor, has such knowledge and experience in financial
matters that he is capable of evaluating the merits and risks of
investing in the Partnership;
(e) Suchb Partner has read and is familiar with the
entire contents of the Partnership Agreement and other documents
attached thereto or mentioned therein, and that his investment in
33
0
IS:1�66N0767
sic.
the Partnership is based on a thorough review and understanding of
all these documents;
(f) Such Partner has had an opportunity to consult
counsel prior to his investment in the Partnership;
(g) Such Partner understands that the Partnership has
no prior operating history, and that the purchase of the Percentage
Interest is a speculative investment which involves a significant
degree of risk of loss of his entire investment in the Partnership;
(h) Such Partner understands that there are substantial
restrictions on the transferability of his Percentage Interest and
that there is: no public market available to trade his Interest.
Accordingly,it will probably not be possible for such Partner to
readily liquidate his investment in the Partnership in the case of
an emergency;
(i'i Any federal income tax benefits which may be
available to such Partner may be lost through changes to existing
laws and regulations, or in the interpretation of existing laws and
regulations br as a result of the Internal Revenue Service
successfully taking positions which are contrary to the positions
taken by the Partnership. Such Partner, in making this investment,
is relying solely upon the advice of his personal tax advisor with
respect to the! tax aspects of an investment in the Partnership;
(j) Such Partner further acknowledges that:
(i) His Percentage Interest has not been
registered under the Securities Act of 1933 (the "Securities Act");
(2) Such Partner has no right to ,require that the
Percentage Interest be registered under the Securities Act;
(3) The Securities and Exchange Commission has
adopted Rule !44 (which became effective April 15, 1972) and issued
Securities Act Releases, Nos. 5223 and 5226, each of which pertains
to purchases and resales of unregistered securities such as the
Percentage Interest;
(4) In accordance with such Rule and Releases,
Article 8 of the Partnership Agreement contains a prohibition upon
resale or other transfers of the Percentage Interest if, in the
opinion of counsel to the Partnership, such resale or transfer
would not be in compliance with the Securities Act;
(5). Any routine sale made in reliance upon Rule
144 can be made only in limited amounts in accordance with the
terms and conditions of that Rule, and if resale of the Percentage
Interest by such Partner may not be made pursuant to the provisions
of that rule ;which is likely to be the case), compliance with
14
R€C 15766NOT68
REC.
Regulation "A" or some other disclosure exemption under the
securities Act may be required;
(6) Such Partner will not sell his Percentage
Interest without registration or other compliance with said Act or
the Rules and Regulations thereunder;
(7) Such Partner has been provided access to all
documentation and information he has requested from the Managing
Partner; and,
(8) Such Partner has had an opportunity to ask
the Managing Partner questions concerning his investment in the
Partnership and the Managing Partner has responded to the same; and
(k) Such Partner has not reviewed or relied upon any
projections in connection with his investment in the Partnership.
Article 11
INDEMNIFICATION
11.01 tn\emnification by the Partnership. To the extent per-
mitted by law, the Partnership, its receiver or trustee shall hold
harmless, indemnify and defend the Managing;Partner, his employees
and agents from and against any claim, demand, liability, action,
investigation,' payment or expense (including, without limitation,
reasonable attorneys' fees, whether suit is instituted or not, and,
if instituted, whether at any trial or appellate level) suffered by
them in virtue of any. Partnership activities or in connection
therewith (the "Liabilities"), provided that, the Managing Partner
shall not be entitled to indemnification hereunder if such Liabili-
ties are due to or arise from such Partner's, grass negligence,
breach of fiduciary duty, or willful misconduct. 'Except as other-
wise limited under this Section 11.01, expenses incurred by the
Managing Partner, or any employee or agent thereof, in defending
any claim attributable to a liability shall be entitled to indemni-
fication by the Partnership hereunder.
11.02 Exoneration of Partners for Acts in_Good Faith. Not-
withstanding any other provision hereof, and to the maximum extent
permissible under applicable law, the other Partners and the Part-
nership hereby waive and release the Managing Partner, and any of
his employees and other agents thereof, from, any and all claims
and liabilities by reason of adverse results to the Partnership or
such other Partners or any act or failure to act on the part of the
Managing Partner in the performance of any duty of the Managing
Partner hereunder, po long as the Managing Partner was proceeding
in good faith to propote the best interests of the Partnership and
is otherwise entitled to indemnification pursuant to the provisions
of Section 11.01 above. If the Managing Partner acts beyond the
scope of the authority granted by this Agreement, in addition to
35
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REC.
any other remedy available to the Partnership or other Partners, he
shall be liable in damages to the Partnership and the other Part-
ners for any loss or damages that they may incur or suffer as a
consequence of such act.
Article 12
DISSOLUTION AND WINDING UP
12.01 l,ioui,datina Events. The Partnership shall dissolve and
commence winding up and liquidating upon the earlier to occur of
any of the following events ("Liquidating Events"):
(a) December 31, 2031;
(b) the sale of all or substantially all of the Pro-
ject, such that the only remaining significant asset of the Part-
nership is cash;
(c}' the Managing Partner determines -to dissolve, wind
up, and liquidate the Partnership;
(d) the Partnership becomes insolvent or bankrupt; or,
(e) the happening of any event which under the Act
causes a dissolution of a Florida general partnership, and the
Partners do not elect to continue the Partnership.
The Partners hereby agree that, notwithstanding any provision of
the Florida Uniform Partnership Act, the Partnership shall not dis-
solve prior to the occurrence of a Liquidating Event.
12.02 Winding Up. Upon the occurrence of a Liquidating Event,
the Partnership shall continue solely for the purposes of winding
up its affairs in an orderly manner, liquidating its assets, and
satisfying the. claims of its creditors and Partners. No Partner
shall take any action that is inconsistent with, or not necessary
to or appropriate for, winding up the Partnership's business and
affairs. The Managing Partner shall be responsible for overseeing
the winding up and liquidation of the Partnership and shall take
full account of the Partnership's liabilities and Project, and the
Project shall be liquidated as promptly as is consistent with
obtaining the fair market value thereof, but in no event should
such period exceed two (2) years from the Liquidating Event, and
the proceeds therefrom, to the extent sufficient therefor, shall be
applied and distributed in the order of priority set forth below.
(at firpt, to the payment and discharge of all of the
Partnership's debts knd liabilities to creditors other than Part-
ners;
36
RE :1576%0770
(b) second, to the payment of and in proportion to the
amount of any. Partner loans to the Partnership;
(c) third, to the Partners until their Ada & ted Capital
Contrfbutio,._ art ,educed to zero,
(d) 1o.7-to the Partners in an amount equal to and
i.
in pr���ion their Non -Cumulative Preferred Return; and,
(e) then, the balanceif any, to the Partners in
accordance with the balances of their Capital Accounts, after giv-
ing effect to all contributions, distributions, and allocations for
all periods.
The Managing Partner shall not receive any additional compensation
for any services performed pursuant to this, Article 12.
12.03 Deficit Capital Make-Vp Provision. In the event the
Partnership is "liquidated" within the meaning of Treas. Reg. sec-
tion 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to
Section 12.02 to the Partners who have positive Capital Accounts in
compliance with Treas. Reg. section 1.704-1(b) (2) (ii) (b) (2) , and if
a Partner has a deficit balance (after giving effect to all contri-
butions, distributions, and allocations for all taxable years, in-
cluding the year during which such liquidation occurs), such Part-
ner shall contribute to the capital of the partnership the amount
necessary to restore such deficit balance to zero in compliance
with Treas. Reg. section 1.704-1(b)(2)(ii)(b)(3). The Managing
Partner shall withhold a reasonable reserve for Partnership liabi-
lities (contingent or .otherwise), provided that such withheld
amounts shall be distributed to the Partners as soon as practica-
ble.
32.04 Deea.ed Distribution and Recontribution. Notwithstanding
any other provisions of this Article 12, in the event the Partner-
ship is liquidated within the meaning of Treas. Reg. section 1.704-
1(b)(2)(ii)(g),. but no Liquidating Event has occurred, the Project
shall not be liquidated, the Partnership's liabilities shall not be
paid or discharged, and the Partnership's affairs shall not be
wound up. Instead, the Partnership shall be deemed to have distri-
buted the Project in kind to the Partners, who shall be deemed to
have assumed and taken subject to all Partnership liabilities, all
in accordance with their respective Capital Accounts. Immediately
thereafter, the Partners shall be deemed to have recontributed the
Property in kind to the Partnership, which shall be deemed to have
assumed and taken subject to all such liabilities.
12.05 Rigl}ts of Partners. Except as otherwise provided in
this Agreement, each P1prtner shall look solely to the assets of the
Partnership for the return of its Capital Contributions and shall
have no right or power to demand or receive property other than
cash from the Partnership. No Partner shall have priority over any
37
' C. RE° 1576611W77I
other Partner as to the return of its Capital Contributions, dis-
tributions, or allocations unless otherwise provided in this Agree-
ment.
12.06 Notice of Dissolution. In the event a Liquidating Event
occurs or an event occurs that would, but for provisions of Section
12.01 hereof, result in a dissolution of the Partnership, the
Managing Partner shall, within thirty (30).days thereafter, (a)
provide written notice thereof to the other Partners and to all
other parties with whom the Partnership regularly conducts business
(as determined in the discretion of the Managing Partner), and (b)
publish notice of such dissolution in a newspaper of general circu-
lation in each place in which the Partnership regularly conducts
business (as determined in the discretion of the Managing Partner).
In addition, each Partner shall be furnished with a statement pre-
pared by the Partnership's Accountants setting forth the assets and
liabilities of the Partnership as of the date of liquidation. All
books and records of the Partnership shall be delivered to the Man-
aging Partner upon liquidation, which shall retain the books and
records for a period of not less than seven years and shall make
the books and records available to the Partners for inspection and
copying at its principal business office during reasonable business
hours.
Article 13
MISCELLANEOUS
13.01 Notices. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this Agree-
ment shall be in writing and shall be deemed to have been deliver-
ed, given, and received for all purposes (i) if delivered personal-
ly to the Partner or to an officer of the Partner to whom the same
is directed, or (ii) whether or not the same is actually received,
Al sent by registered or certified mail, postage and charges pre-
paid, addressed as follows: if to the Partnership, to the Partner-
ship at the address set forth in Section 1.03 hereof, or to such
other address as the Partnership may from time to time specify by
notice to he. Partners; if to a Partner, to such Partner at the
address set forth on Exhibit "B", or to such other address as such
Partner may from time to time specify by notice to the Partnership.
Any such notice shall be deemed to be delivered, given, and
received as of the date so delivered, if delivered personally, or
as of the date on which the same was deposited in a regularly main-
tained receptacle of the deposit of United States mail, addressed
and sent as aforesaid.
13.02 Binding Effect. Except as otherwise provided in this
Agreement, every covbnant, term, and provision of this Agreement
shall be binding upon and inure to the benefit of the Partners and
their respective heirs, legatees, legal representatives, succes-
38
oFF I57661107T2
REC.
sors, transferees, and assigns. Any person succeeding to the Per
eentage Interast of a Partner shall succeed to'all of such Part-
ner's rights, interests and obligations hereunder, subject to and
with the benefit of all terms and conditions of this Agreement.
13.03 Colstruetion. Every covenant, term, and provision of
this Agreement shall be construed simply;according to its fair
meaning and not strictly for or against any such Partner. This
Agreement shall be interpreted without regard to any presumption or
rule requiring construction against the party causing this Agree-
ment to be drafted.
13.04 time. Time is of the essence with respect to this
Agreement.
13.05 Captions. Captions contained in this Agreement are for
reference purposes only and are not intended to describe, inter-
pret, define, or limit the scope, extent, or intent of this Agree-
ment or any provision hereof.
13.06 Beverability. Every provision of this Agreement is in-
tended to be severable. If any term or provision hereof is illegal
or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this
Agreement. Notwithstanding anything in this Agreement to the con-
trary, if for any reason any interest required to be paid hereunder
shall exceed the maximum amount permitted by law, such interest
shall be automatically reduced to such maximum amount, provided
that this sentence shall not be operative if no applicable laws
restrict such interest or if no usury defense is available to the
obligor of such interest.
13.07 Inoorpor`ation by Reference. Every exhibit, schedule,
and other appendix attached to this Agreement and teferred to here-
in is hereby incorporated in this Agreement by reference.
13.08 Further Assurances. Each Partner agrees to perform all
further acts and execute, acknowledge, and deliver any additional
instruments and documents which may be reasonably necessary, appro-
priate, or desirable to carry out the provisions of this Agreement.
13.09 variation of Pronouns. All personal pronouns used in
this Agreement, whether used in the masculine, feminine, or neuter
gender, shall Include all other genders; the singular shall include
the plural, and vice versa, as the identity of the person or per-
sons may require.
13.10 Governing Law. The laws of the State of Florida shall
govern the validity of this Agreement, the construction of its
terms, and the interpretation of the rights and duties of the Part-
ners without regard to conflicts of law principles thereunder.
39
1.15766110113 RfC
13.11 Counterpart Execution. This Agreement may be executed
in any number of counterparts with the same effect as if all of the
Partners had signed the same document. All counterparts shall be
construed together and shall constitute one agreement.
13.12 Egj hind Party Rights. The provisions of this. Agreement
are for the exclusive benefit of the Partnership and the Partners
and no other party (including without limitation, any creditor of
the Partnership or any Partner) shall have any right or claim
against the Partnership or any Partner by reason of those provi-
sions or be entitled to enforce any of those provisions against the
Partnership or any Partner.
13.13 Integration. This Agreement is the entire agreement
between the parties with respect to the subject hereof and super-
sede any prior agreement or understanding between the Partners, and
no alteration, modification, amendment or interpretation hereof
shall be binding unless in writing and signed by the Partners.
13.14 Remedies. Each Partner acknowledges and agrees that the
„remedy at law for any breach of any of the terms of this Agreement
would be inadequate, and agrees and consents that temporary and
permanent injunctive and other equitable reliefmay be granted in
any proceeding which may be brought to enforce any provision here-
of, including within such other equitable relief, specific perfor-
mance, without the necessity of proof of actual damage or inadequa-
cy of any legal remedy. Any right or remedy provided for in this
Agreement shall be cumulative of any other right, power, or remedy
provided for by law or in equity.
13.15'SSeparate Counsel and No Tax Representations. Prior to
entering into this Agreement, each of the Partners acknowledges
that he has had an opportunity to seek professional advice with
respect to the consequences of entering into this Agreement,
including the potential income tax consequences of this
transaction. The Partners 'acknowledge and understand that the
Managing Partner has been represented by separate counsel, which
drafted this Agreement. Such firm did not represent the
Partnership or any other Partner herein.
13.16 Consent of Partners. Any provision requiring the
consent or approval of the Partners shall, except as otherwise
specifically provided, require the consent of holders of fifty
percent (50%) of the Percentage Interests of the Partners.
13.17 Waiver. One or more waivers of .a breach of any provi-
sions of this Agreement by any Partner shall not be construed as a
waiver of a subsequent breach of the same or any other provisions,
nor shall any delay«or omission by a Partner to seek a remedy for
any breach of this Agreement or to exercise the rights accruing to
such Partner by reason of a breach by another Partner be deemed a
40
0 We. I5T66M37T4 e
c4aiver by the Partner of his remedies and rights with respect to
such breach.
13.18 Waiver of Partition. No Partner shall, either directly
or directly, take any action to require partition or appraisement
of the Partnership or of any of its assets or properties or compel
the sale of any Partnership property, and notwithstanding any pro-
visions of applicable law to the contrary, each Partner (and his
legal representatives, successors, or assigns) hereby irrevocably
waives any and all rights to maintain any action for partition or
to compel any sale with respect to his Partnership Interest, or
with respect to any assets or properties of the Partnership, except
as expressly provided in this Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agree-
ment of Partnership as of the first day above set forth.
Signed, sealed and delivered
in the presence of:
ess
(Signatures continued on next page)
r
41
By: Its Partner
Natan ner
Evelyn R
4tS,ZG'i
M..sza Rok, Partner
1-3 )�Z�.►�2
Partner
r) REC:I5T66NOTT5
Witness /
Witness
Witness
Witness
i
(Signatures continued on next page)
•r
eizeZduArae
42
e gio Rok, Partner
Mer
9
11.
-egl GZ2i
do Tuchman, Partner
ttr-
cu.a
Yako M, lP rtner
Clara Morj ai(n, ,}partner
Witness
Centrust.par
OFF.15766n0776 �.
REC.
43
//.7
R. BRANDON) jR VVCABLE .LIVING
TRUST,
•.r y -r
By:
By : //�/ �✓
D. Brandon, Trustee
BLUMIN MENDEZ PARTNERSHIP,
Partner
FS:15766P60777
REC.
Exhibit "Au
DESCRIPTION OF PROPERTY
Lot 11 and the West 1/2 of Lot 12 in Block 117 North, CITY OF
MIAMI, accordtng to the Plat thereof, as recorded in Plat Book B,
Page 41, of the Public Records of Dade County, Florida.
a
44
00 15766 W78
Exhibit "Bu
NAMES AND ADDRESSES OF PARTNERS
1) NATAN ROK
PH #10b
48 East Fl.agler Street
Miami, FL 33131
2) EVELYN ROB:
1950 NE 158th Terrace
Miami, FL 33179
3) MASZA ROK
Apt. 931
6039 Collins Avenue
Miami Beach, FL 33140
4) SERGIO ROK
PH #105
48 East F'lagler Street
Miami, FL. 33131
VICTOR CAMJI
Apt. 110
4141 Collins Avenue
Miami Beach, FL 33140
r
6) MOISES BEREZDIVIN
Matadero & A Street
P.O. Box 11910
San Juan, PR 00922
7) MERDARDO TUCHMAN
Matadero & A Street
P.O. Box 11910
San Juan, PR 00922
8) YAKO and CLARA MORJAIN
Apt. 212
8777 Collins Avenue
Miami Beach, FL 33152
9) R.BRANDON & D. BRANDON,• •Trustee
under the R.BRANDON REVOCABLE
LIVING TRUST
217 Arogan Avenue
Coral Gables, FL 33134
10) BLUMIN MENDEZ PARTNERSHIP
3723 1/2 NW 7th Street
Miami, FL 33126
45
OFf. 15766PG0779
REC.
Exhibit !ICI'
INITIAL CAPITAL CONTRIBUTIONS'
NAME OF P RTNEit�
Ratan Rok
Evelyn Rok
Masza Rok
Sergio Rok
Victor Camji
Moises Berezd:.vin
Merdardo Tuchman
Yako and Clara Morjain
R. Brandon & D. Brandon,
Trustees under the R. Brandon
Revocable Living Trust
Blumin Mendez Partnership
INITIAL CAPITAL
CONTRIBUTION
312,500
250,000
125,000
250,000
312,500
250,000
250,000
250,000
250,000
250,000
TOTALS $ 2,500,000,
46
OFF. 15T66PG0700
REC.
Exhibit MY,
0
PERCENTAGE INTEREST OF EACH PARTNER
PERCENTAGE
NAME OF PARTNER INTEREST
Natan Rok 12.5%
Evelyn Rok 10.0%
Masza Rok 5.0%
Sergio Rok 10.0%
victor Camji 12.5%
Moises Berezdivin 10.0%
Merdardo Tuchran 10.0%
Yako and Clara Morjain 10.0$
R. Brandon & D. Brandon,
Trustees under the R. Brandon
Revocable Living Trust 10.0%
Blumin Mendez Partnership 10.0%
TOTALS 10®
47
3
REV. 1 5766PGUT8 f
Exhibit ”E“
INITIAL PROFITS INTEREST OF THE PARTNERS
NAME OF PARTNER
Natan Rok
Evelyn Rok
Masza Rok
Sergio Rok
Victor Camji
Moises Berezdivin
Merdardo Tuchman
Yako and Clara Morjain
R. Brandon & D. Brandon,
Trustees under the R. Brandon
Revocable Living Trust
Blumin Mendez Partnership
PROFITS
INTEREST
30.0%
8.0%
4.0%
8.0%
10.0%
8.0%
8.0%
8.0%
8.0%
8.0
TOTALS 100%
.t
48 '
/ 4 /93
(*CODED IN OH IC$4t AECDIOD ROW
DI DADE COU/.ir, RIDE/OS
EEC0E0 VFW if!)
Iferk of Circuit L Qounty
Courts
This Instrument Prepared By'
and Return To:
Ilene Temchin, Esq.
City of Miami
CityAttomey's Office
444 S.W. 2 o Avenue
Miami, Florida 33130-1910
03R222811 2003 APR 04 10:32
DOCSTPHIG 6,3013.00 INTNG 3400.00
HARVEY RUVIN, CLERK DADE COUNTY, FL
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT ereinafter referred to as the
"Mortgage"), executed and delivered the a day of r `' 2002, by Old Centrust
Building Partnership, a Florida general partnership, (hereinafter referred to as the "Mortgagor"),
whose mailing address is 48 East Flagler Street, P11-5, Miami, Florida 33131, to the City of
Miami, a municipal corporation of the State of Florida, with offices at 444 S.W. 2 Avenue,
Miami, Florida 33130 (hereinafter individually or collectively called "the Mortgagee").
WITNESSETH THAT:
FOR DIVERS GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which is hereby acknowledged, and to secure the payment, observance,
performance and discharge of any and all of the indebtedness, liabilities, covenants, promises,
agreemetlts, terms, conditions and other obligations of every nature whatsoever, whether direct or
indirect, absolute or contingent, joint or several, liquidated or unliquidated, of Mortgagor and
Flagler First Condominiums, L.L.C., a Florida limited liability company ("FFC"), or any of them,
to Mortgagee, evidenced by, secured by, under and as set forth in this Mortgage, the Agreement
dated simultaneously herewith between FFC and the Mortgagee (the "Agreement"), and the other
documents executed in connection therewith (hereinafter jointly referred to as the "Grant
Documents"), the Mortgagor does grant, bargain sell, alien, remise, release, convey and confirm
unto the Mortgagee, in fee simple, all of that certain tract of land which the Mortgagor is now
seized and possessed and in actual possession, situate in Miami -Dade County, State of Florida,
legally described as follows:
•
SEE EXHIBIT "A" ATTACHED HERETO
TOGETHER WITH all structures and improvements now and hereafter located thereon,
the rents, issues and profits thereof, all furniture, furnishings, fixtures and equipment now located
thereon, and also all gas and electric fixtures, heaters, air conditioning, equipment, machinery,
motors, baths, tubs, sinks, water closets, faucets, pipes and other plumbing and heating fixtures,
refrigerators, blinds, and other window treatments, which are now or may hereafter pertain to or
be used with, in or on said premises, and which, even though they be detached or detachable, are
and shall be deemed to be fixtures and accessions to the freehold and a part of the realty, and all
additions thereto and replacements thereof, which real property, improvements and personalty
shall hereinafter collectively be referred to as the "Mortgaged Property".
TO HAVE AND TO HOLD the same, together with all tenements and hereditaments
and appurtenances, unto the Mortgagee in fee simple, forever.
Page 1 of 14 Pages
Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of the
ed Property in fee simple; that the Mortgagor has full power and lawful right to convey
aged Property in fee simple as aforesaid; that the Mortgaged Property is free from all
ces except as specified herein; that the Mortgagor will make such further assurances
e fee simple title to the Mortgaged Property in the Mortgagee as may reasonably be
ed; and that the Mortgagor does hereby fully warrant the title to the Mortgaged Property,
and will defend the same against the lawful claims of all persons whomsoever.
PROVIDED ALWAYS, that if the Mortgagor and FFC, as applicable, shall perform and
comply with and abide by each and every one of the stipulations, agreements, conditions and
covenants of this Mortgage, the Agreement, and the other documents executed in connection
therewith (hereinafter jointly referred to as "the Grant Documents"), then this Mortgage and the
estate thereby created shall cease and be null and void.
All capitalized terms not defined herein shall have the meanings provided in the
Agreement.
AND THE MORTGAGOR HEREBY COVENANTS AND AGREES AS
FOLLOWS:
1. PERFORMANCE OF. -AGREEMENT AND MORTGAGE. FFC and the Mortgagor
shall pay or otherwise fully perform their obligations with respect to the payment of all surns of
money payable by virtue of the Agreement and this Mortgage, or either, promptly on the days
when the same severally become due and payable, and shall perform, comply with and abide by
each and every of the stipulations, agreements, conditions and covenants set forth in the
Agreement, this Mortgage and the other Grant Documents.
2. TAXES AND OTHER CHARGES. The Mortgagor shall pay when due and payable
and before any interest, charge or penalty is due thereon, without any deduction, defalcation or
abatement, all taxes, assessments, levies, liabilities, obligations, encumbrances, water and sewer
rents and all other charges or claims of every nature and kind which may be imposed, suffered,
placed, assessed, levied, or filed at any time against this Mortgage, the Mortgaged Property or
any part thereof or against the interest of the Mortgagee therein, or which by any present or future
law may have priority.over the indebtednesssecured hereby either in lien or in distribution out of
the proceeds of any judicial sale, without regard to any law heretofore or hereafter to be enacted
imposing payment of the whole or of any part upon the Mortgagee; and insofar as any such tax,
assessment, levy, liability, obligation or encumbrance is of record, the same shall be promptly
satisfied and discharged of record and the original official document (such as, for instance, the
tax receipt or the satisfaction paper officially endorsed or certified) shall be placed in the hands
of the Mortgagee no later than such dates; provided, however, that if, pursuant to this Mortgage
or otherwise, the Mortgagor shall have deposited with the Mortgagee before the due date thereof
sums sufficient to pay any such taxes, assessments, levies, water and sewer rents, charges or
claims, and the Mortgagor is not otherwise in default, they shall be paid by the Mortgagee; and
provided further, that if the Mortgagor in good faith and by appropriate legal action shall contest
the validity of any such items or the amoutp thereof, and shall have established an its books or by
deposit of cash with the Moi tgagee, as the Mortgagee may elect, a reserve for the payment
" thereof in such amount as the Mortgagee may require, then the Mortgagor shall not be required to
pay the item or to produce the required receipts: (a) while the reserve is maintained; and (b) so
long as the contest operates to prevent collection, is maintained and prosecuted with diligence,
and shall not have been terminated or discontinued adversely to the Mortgagor. The Mortgagor
shall famish the Mortgagee with annual receipted tax bills evidencing payment within ninety
(90) days from their initial due date, provided, however, that in the event that the Mortgagor shall
contest the validity of the tax bill or the amount thereof, the Mortgagor shall furnish the
Page 2 of 14 Pages
Mortgagee with evidence thereof and compliance with all of the requirements of this paragraph
in such ninety (90) day period.
to cotnox
INSTALLMENTS FOR INSURANCE TAXES AND OTHER CHARGES.
limiting the effect of Paragraphs 2 or 5 hereof, the Mortgagee may require the
r to pay to the Mortgagee, monthly, an amount equal to one -twelfth (1/12) of the annual
ms for the insurance policies referred to hereinabove and the annual real estate taxes,
t r and sewer rents, any special assessments, charges or claims and any other item which at
any tirFt may be or become a lien upon the Mortgaged Property prior to the lien of this
Mortgage; and on demand from time to time FFC and/or the Mortgagor shall pay to the
Mortgagee any additional sums necessary to pay the premiums and other items, all as estimated
by the Mortgagee. The amounts so paid shall be used in payment thereof if the Mortgagor is not
otherwise in default hereunder. No amount so paid shall be deemed to be trust funds but maybe
commingled with general funds of the Mortgagee, and no interest shall be payable thereon. ,If,
pursuant to any provision of this Mortgage, the whole amount of the unpaid principal debt
becomes due and payable, the Mortgagee shall have the right, at its election, to apply any amount
so held against the entire indebtedness secured hereby. At the Mortgagee's option, the Mortgagee
from time to time may waive, and after any such waiver may reinstate, the provisions of this
Paragraph requiring monthly payments.
4. ATTORNEYS' FEES itND COSTS. The Mortgagee shall recover from FFC and/or
the Mortgagor, and this Mortgage shall secure payment of, all and singular the costs, charges and
expenses, including but not limited to, reasonable trial, appellate, and bankruptcy attorneys' fees,
because of the failure on the part of the Mortgagor and/or FFC to perform, comply with, and
abide by, each and every of the stipulations, agreements, conditions and covenants of the
Agreement and this Mortgage, or either, or any of the other Grant Documents, whether or not suit
is brought, and every such payment made by the Mortgagee shall bear interest from the date
thereof at the maximum rate permitted by law.
5. INSURANCE. The Mortgagor shall keep the buildings and improvements now or
hereafter erected on the Mortgaged Property continuously insured under a policy or policies
providing coverage on an "all risk" basis, in a sum not less than full insurable value, including
flood insurance if requested by the Mortgagee, in a company or companies acceptable to the
Mortgagee. The policy or policies of insurance shall be held by and be payable to the Mortgagee.
In the event any sum of money becomes payable under such policy or policies, the Mortgagee
shall have the option to receive and apply the same on account of the indebtedness secured by
this Mortgage Qr to permit the Mortgagor to receive and use it, or any part thereof, for other
purposes, without thereby waiving or impairing any equity lien or right under or by virtue of this
Mortgage. In the event the Mortgagor fails to procure and maintain the insurance coverage
required hereby, the Mortgagee may procure and pay for such insurance or any part thereof,
without waiving or affecting its option to foreclose this Mortgage, or any right thereunder. Each
and every such payment made by the Mortgagee shall be secured by this Mortgage; shall be due •
and payable on demand; and, shall bear interest from the date each such payment is made at the
maximum rate permitted by law.
i
_ 6. CARE OF THE MORTGAGED PROPERTY. The Mortgagor shall exercise
reasonable care in the maintenance of the Mortgaged Property, and shall not permit, commit or
suffer any waste, impairment or deterioration of the Mortgaged Property or any part thereof. In
the event the Mortgagor fails to keep the Mortgaged Property in good repair, the Mortgagee may
make such repairs as it may deem necessary in its sole discretion for the proper preservation
thereof, and the full amount of each such payment shall be due and payable with interest at the
maximum rate permitted by law on demand, and shall be secured by the lien of this Mortgage.
Page 3 of 14 Pages
EXISTING/OTHER MORTGAGES AND OBLIGATIONS. This Mortgage shall be
ortgage, subordinate to the lien of the existing first mortgage held by Union Planters
n the Closing of the construction loan from Wachovia Bank, National Association this
shall be a second mortgage, subordinate to the lien of the mortgage in favor of
a Bank, National Association to secure an indebtedness not to exceed S9,360,000.00.
subordination set forth herein shall be self -operative and no further instrument of
subordination shall be required. The Mortgagee agrees from time to time to execute its standard
form of subordination agreement to further effectuate the provisions of this paragraph.
Any default in the payment or terms and conditions of any existing or other mortgage(s), or
any modification and/or acceptance of future advances from any existing or other mortgage(s)
shall constitute a default hereunder and the Mortgagee, at its option, may declare all sums due
and payable and accelerate the entire indebtedness. The Mortgagee may, at its option, and
without waiving its right to accelerate theindebtedness hereby secured and to foreclose the same,
pay either before or after delinquency any or all of those certain obligations required by the terms
hereofrto be paid by the Mortgagor for the protection of the Mortgage security or for the
collection of the indebtedness hereby secured. All sums so advanced or paid by Mortgagee shall
be charged into the mortgage account, and every payment so made shall bear interest from the
date thereof at the delinquent rate specified in the Agreement, and become an integral part
thereof, subject in all respects to=the terms, conditions and covenants of the Agreement, and this
Mortgage, as fully and to the same extent as though a part of the original indebtedness evidenced
by the Agreement and secured by this Mortgage, excepting however, that said sums shall be
repaid to the Mortgagee within Fifteen (15) days after demand by the Mortgagee to the
Mortgagor for said payment.
8. INSPECTION. The Mortgagee, and any persons authorized by the Mortgagee, shall
have the right at any time, upon reasonable notice to the Mortgagor, to enter the Mortgaged
Property at a reasonable hour to inspect and photograph its condition and state of repair.
4. ACCELERATION OF MATURITY. That (a) in the event of any breach of this
Mortgage or default on the part of the Mortgagor, or; (b) in the event any of said sums of money
herein referred to be not promptly and fully paid within 15 days next after the same severally
become due and payable; without demand or notice; or (c) in the event each and every
stipulation, agreement, condition and covenants of the Agreement, this Mortgage or any of the
other Grant Documents, are not duly, promptly and fully performed, discharged, executed,
effected, completed, complied with and abided by, or; (d) in the event the Mortgagor shall fail,
within five (5) days written notice by the Mortgagee to execute a Mortgagor's certificate in favor
of any assignee or prospective assignee of the Mortgagee's interest hereunder which certificate
shall contain such acknowledgments, affirmations, and covenants as may be reasonably required
to enable the Mortgagee to assign their interest hereunder, or (e) upon the rendering by any court
of last resort of a decision that an undertaking by the Mortgagor as herein provided to pay taxes,
assessments, levies liabilities, obligations and encumbrances is legally inoperative or cannot be
enforced, or in the event of the passage of any law changing in any way or respect the laws now
in force for the taxation of mortgages or debts secured thereby, or the manner of collection of any
_ such taxes, so as to affect this Mortgage or the or the obligations and/or any sums that may
become due hereunder or secured hereby; or (f) in the event there exists an event of default under
and pursuant to the terms of any other obligation of any kind or nature whatsoever of FFC and/or
the Mortgagor to the Mortgagee, direct or contingent, whether now existing or hereafter due,
existing, /created or arising, then in either or any such event, the aggregate sum then remaining
unpaid and/or to be paid or re -paid to the Mortgagee pursuant to the Agreement, with interest
• accrued, and any other monies secured hereby shall become due and payable forthwith, or
Page 4 of 14 Pages
er, at the option of the Mortgagee, as fully and completely as if all of the sums of money
nally stipulated to be paid on such day, anything in the Agreement and/or in this
to the contrary notwithstanding; and thereupon or thereafter, at the option of the
e, without notice or demand, suit at law or in equity, therefore, or thereafter begun, may
cuted as if all money secured hereby had matured prior to its institution.
10. NO ADDITIONAL FINANCING. The Mortgagor hereby covenants and agrees that
Mortgagor shall not procure any other financing in connection with the Mortgaged Property
without the prior written consent of the Mortgagee.
11. DEFENSE OF MORTGAGED PROPERTY AND MORTGAGE. If any action or
proceeding shall be commenced by any person other than the Mortgagee, and the Mortgagee is
made a party, or in which it shall become necessary for the Mortgagee to defend or take action to
uphold or defend the lien of this Mortgage, all sums paid or incurred by the Mortgagee for the
expense of any litigation, including court costs and attorneys' fees incurred in any trial, appellate,
and bankruptcy proceedings, to prosecute or defend the rights and liens created by this Mortgage
shall be paid by the Mortgagor, together with interest thereon at the maximum rate permitted by
law from the date thereof, and any such sum and interest thereon shall be a claim upon the
Mortgaged Property, attaching or accruing subsequent to the lien of this Mortgage, and shall be
secured by the lien of this Mortgage.
12. CONDEMNATION. In the event the Mortgaged Property or any part thereof shall be
condemned under the power of eminent domain, the Mortgagee shall have the right to demand
that all dtunages awarded for such taking be paid to the Mortgagee and shall be entitled to receive
same, up to the aggregate amount then remaining unpaid on the Agreement and this Mortgage,
and any such sums shall be applied to the payments last payable thereof.
13. SUBROGATION. To the extent of the indebtedness of FFC to the Mortgagee as
described in the Agreement, the Mortgagee shall be subrogated to the lien and the rights of the
owners and holders of each and every mortgage, lien or other encumbrance on the Mortgaged
Property which is paid or satisfied, in whole or in part, out of the proceeds of the Grant. The
respective liens of such mortgages, liens or other encumbrances shall be and are hereby security
for the Agreement, as if they had been regularly assigned, transferred, and delivered unto the
Mortgagee, notwithstanding the fact that the same may be set aside and canceled of record.
14. APPOINTMENT OF RECEIVER. At any time while a suit is pending to foreclose or
to reform this )4rtgage or to enforce any claims arising hereunder, the Mortgagee may apply to a
court of appropriate jurisdiction for the appointment of a Receiver, and such court shall forthwith
appoint a Receiver of the Mortgaged Property, including all and singular the income, profits,
rents, issues and revenues from whatever source derived. The Receiver shall have all the broad
and effective functions and powers in anywise entrusted by a court to a Receiver, and such
appointment shall be made by such court as an admitted equity and as a matter of absolute right
to the Mortgagee without reference to the adequacy or inadequacy of the value of the Mortgaged
Property, or to the solvency or insolvency of the Mortgagor or the Defendants. All income,
profits, rents, issues and revenues collected by the Receiver shall be applied by such Receiver
according to the lien of this Mortgage, and the practice of such court.
15. NO TRANSFER OF MORTGAGED PROPERTY. It is expressly agreed that should
the Mortgagor convey title to the Mortgaged Property or any legal or equitable interest therein, to
any person, firm or corporation or shall permit or create any further encumbrances upon the
Mortgaged Property without the prior written approval of the Mortgagee to such conveyance or
encumbrance, all sums outstanding under the Agreement and secured by this Mortgage shall
Page 5 of 14 Pages
e immediately due and payable, at the option of the Mortgagee.
ASES Al•'t,ECTTNG MORTGAGED PROPERTY. The Mortgagor shall comply
bserve its obligations as landlord under all leases affecting the Mortgaged Property or
ereof. Upon request, the Mortgagor shall fumish promptly to the Mortgagee executed
f all such leases now existing or hereafter created. The Mortgagor shall not accept
ent of rent more than one (1) month in advance without the prior written consent of the
Mortgagee. Nothing contained in this Section or elsewhere in this Mortgage shall be construed
to make the Mortgagee a mortgagee in possession unless and until the Mortgagee actually takes
possession of the Mortgaged Property either in person or through an agent or receiver.
To the extent not provided by applicable law, each lease of the Mortgaged Property, shall
provide that, in the event of the enforcement by the Mortgagee of the remedies provided for by
law or by this Mortgage, the lessee thereunder will, if requested by the Mortgagee or by any
person succeeding to the interest 'of the Mortgagee as the result of said enforcement,
automatically become the lessee of any such successor in interest, without any change in the
terms or other provisions of the respective lease; provided, however, that said successor in
interest shall not be bound by (i) any payment of rent or additional rent for more than one (1)
month in advance, except prepayments in the nature of security for the performance by said
lessee of its obligations under said lease not in excess of an amount equal to one (1) month's
rental, or (ii) any amendment dY modification in the lease made without the consent of the
Mortgagee or any successor in interest. Each lease shall also provide that, upon request by said
successor in interest, the lessee shall execute and deliver an instrument or instruments confirming
its attornment.
17. ASSIGNMENT OF RENTS, ISSUES AND PROFITS. The Mortgagor does hereby
bargain, sell, transfer, assign, convey, set over and deliver unto the Mortgagee, as security for the
payment and performance of all the terms and conditions of the Agreement and this Mortgage,
and any And all amendments, extensions and renewals thereof, all t Asses affecting the Mortgaged
Property or any part thereof now existing or which may be executed at any time in the future
during the life of this Mortgage, and all amendments, extensions and renewals of said leases and
any of them, and all rents and other income which may now or hereafter be or become due or
owing under the Leases, and any of them, on account of the use of the Mortgaged Property, it
being intended hereby to establish a complete transfer of the leases hereby assigned and all the
rents and other income arising thereunder and on account of the use of the Mortgaged Property
unto the Mortgagee, with the right, but without the obligation, to collect all of said rents and
other income which may become due during the life of the Agreement and this Mortgage. The
Mortgagor agrees to deposit with the Mortgagee upon demand such leases as may from time to
time be designated by the Mortgagee. Although it is the intention of the parties that this shall be
a present assignment, it is expressly understood and agreed, anything herein contained to the
contrary notwithstanding, that the Mortgagee shall not exercise any of the rights or powers herein
conferred upon it until a default shall occur under the terms and provisions of the Agreement and
this Mortgage, but upon the occurrence of any default the Mortgagee shall be entitled, upon
notice to the tenants, to all rents and othe/ amounts then due under the leases and thereafter
accruing, and this Mortgage shall constitute a direction to and full authority to the tenants, lessees
or other occupants of the premises (hereinafter collectively referred to as the 'Tenants") to pay all
said amounts to the Mortgagee without proof of the default relied upon. The Tenants are hereby
irrevocably authorized to rely upon and comply with any notice or demand by the Mortgagee for
the payment to the Mortgagee of any rental or other sums which may be or thereafter become due
under the leases, or for the performance of any of the Tenants undertakings under the leases and
shall have no right or duty to inquire as to whether any default under this Mortgage has actually
occurred or is then existing.
Page 6 of 14 Pages
MORTGAGE CONSTITUTES SECURITY AGREEMENT. This Mortgage also
s a security agreement as defined under the Uniform Commercial Code. The
hereby grants to the Mortgagee a security interest in and to all furniture, furnishings,
achinery, and personal property of every nature whatsoever now owned or hereafter
by the Mortgagor located upon the Mortgaged Property together with all proceeds
om and as further described in Exhibit B. The Mortgagor shall execute any and all
documents as the Mortgagee may request, including, without limitation, financing statements
pursuant to the Uniform Commercial Code as adopted by the State of Florida, to preserve and
maintain the priority of the lien created hereby on property which may be deemed personal
property or fixtures. The Mortgagor hereby authorizes and empowers the Mortgagee to execute
and file on behalf of the Mortgagor all financing statements and refiling and continuations
thereof as the Mortgagee deems necessary or advisable to create, preserve or protect said lien.
The Mortgagor and Mortgagee expressly agree that the filing of a financing statement shall never
be construed as in anywise derogating from or impairing the express declaration and intention of
the parties hereto that all such personalty located on or utilized in connection with the real
property encumbered by this Mortgage shall at all times and for all purposes, in all proceedings
both legal and equitable, be deemed a part of the real property encumbered by this Mortgage.
19. CARE OF PROPERTY.
(a) The Mortgagor shall preserve and maintain the Mortgaged Property in good condition
and repair. Except in accordance with the Work Plan approved by the Mortgagee pursuant to the
Agreement, the Mortgagor shall not remove, demolish, alter or change the use of any building,
structure or other improvement presently or hereafter on the Land constituting any part of the
Mortgaged Property, or allow the same to occur, without the prior written consent of the
Mortgagee. The Mortgagor shall not permit, commit or suffer any waste, impairment or
deterioration of the Mortgaged Property or of any part thereof, and will not take any action which
will increase the risk of fire or other hazard to the Mortgaged Property or to any part thereof.
(b) Except as otherwise provided in this Mortgage, no fixture, personal property or other
part of the Mortgaged Property shall be removed, demolished or altered, without the prior written
consent of the Mortgagee. The Mortgagor may sell or otherwise dispose of, free from the lien of
this Mortgage, furniture, furnishings, equipment, tools, appliances, machinery, fixtures or
appurtenances, subject to the lien hereof, which may become worn out, undesirable or obsolete,
only if.tney are replaced immediately with similar items of at least equal value which shall,
without furtheroction, become subject to the lien of this Mortgage.
20. MORTGAGE SECURES INDEBTEDNESS. It is expressly agreed and understood
that this Mortgage secures the indebtedness and the obligations of FFC to the Mortgagee with
respect to the Agreement, and all renewals, extensions and modifications thereof. This Mortgage
shall not be deemed released, discharged or satisfied until the entire indebtedness evidenced by
the Agreement is paid in full or released and canceled by the Mortgagee.
21. MORTGAGEE'S REMEDIES' CUMULATIVE. The Mortgagor agrees that all
rights of the Mortgagee hereunder shall be separate, distinct, and cumulative, and that none shall
be in exclusion of the other, and that no act of the Mortgagee shall be construed as an election to
proceed under any provision of covenant herein to the exclusion of any other, notwithstanding
anything herein to the contrary.
22. FUTURE ADVANCES. Pursuant to the laws of the State of Florida, this Mortgage
shall secure not only the existing indebtedness evidenced by the Agreement, but also such future
Page 7 of 14 Pages
es as may be made by the Mortgagee to the Mortgagor in accordance with the Agreement,
gage or any other Grant Document executed in connection herewith, whether or not
ances are obligatory or are to be made at the option of the Mortgagee, or otherwise, as
within twenty (20) years from the date hereof, to the same extent as if such future
es were made on the date of the execution of this Mortgage, and the total amount of
ebtedness that shall be so secured by this Mortgage may decrease or increase from time: to
time, provided that the total unpaid balance so secured at any one time shall not exceed a
princihal, amount of ONE MILLION EIGHT HUNDRED THOUSAND AND 00/100 DOLLARS
($1,800,000.00) plus interest thereon and plus any disbursements made for the payment of taxes,
levies or insurance on the property covered by the lien of this Mortgage, together with interest on
such disbursements.
23. INDEMNIFICATION. The Mortgagor hereby protects, indemnifies and saves
harmless the Mortgagee, its officers, directors, agents and employees, from and against any and
all liabilities, obligations; claims, damages, penalties, causes of action, costs and expenses
(including without limitation, reasonable attorneys' fees and expenses) imposed upon, incurred
by or asserted against the Mortgagee or any of such persons by reason of (a) ownership of any
interest in the Mortgaged Property or any part thereof, (b) any accident, injury to or death of
persons or loss of or damage to property occurring on or about the Mortgaged Property or any
part thereof or the adjoining sidewalks, curbs, vaults and vault space, if any, streets or ways, (c)
any use, disuse or condition of -the Mortgaged Property or any part thereof, or the adjoining
sidewalks, curbs, vaults and vault space, if any, or any streets or ways, (d) any failure on the part
of the Mortgagor to perform or comply with any of the terms hereof or of any of the Grant
Documents executed in connection herewith, or any inaccuracy in any representation or warranty
made by the Mortgagor herein or in any of the Grant Documents executed in connection
herewith, (e) any necessity to defend any of the right, title or interest conveyed by this Mortgage,
(f) the performance of any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof, (g) any subsidence or erosion of any part
of the surface of the Mortgaged Property, including any shoreline or any bank of any river,
stream, creek, lake, ocean or other water source, or (h) the location or existence of asbestos or
any toxic or hazardous waste, chemicals, materials or substance on, at, in or under the Mortgaged
Property or any part thereof. If any action, suit or proceeding is brought against the Mortgagee,
or any of its officers, directors, agents or employees, for any such reason, the Mortgagor, upon
the request of such party, will, at the Mortgagor's expense, cause such action, suit orproceeding
to be resisted and defended by counsel satisfactory to the Mortgagee or such person. Any
amounts payable to an indemnified party under this Section which are not paid within ten (10)
days after written demand therefor shall bear interest at the default rate of interest provided in the
Agreement from the date of such demand, and such amounts, together with such interest, shall be
indebtedness secured by this Mortgage. The obligations of the Mortgagor under this Section
shall survive any defeasance of the Mortgage.
24. 'HAZARDOUS MATERIALS. The Mortgagor agrees that Hazardous Materials will not
be used, generated, stored or disposed of on the Mortgaged Property. For purposes hereof,
"hazardous materials" include (but are not limited to) materials defined as "hazardous waste"
under the Federal Resource Conservation and Recovery Act and similar state laws, or as
"hazardous substances" under the Federal Comprehensive Environmental Response,
Compensation and Liability Act and similar state laws. Hazardous materials include (but are not
limited to) solid, semi -solid, liquid or gaseous substances which are toxic, ignitable, corrosive,
carcinogenic or otherwise dangerous to human, plant or animal health and well being. Examples
of hazardous waste include paints, solvents, chemicals, petroleum products, batteries,
transformers, and other discarded man-made materials with hazardous characteristics. The
Mortgagee shall have all remedies at law and equity for failure of the Mortgagor to carry out the
Page 8 of 14 Pages
bligation, including but not limited to specific performance, damages, reasonable
es and court costs. This provision shall survive payment of the Agreement and
(this Mortgage.
�Uq�
(29.Y.1,
�fcPRESENTATIONS AND WARRANTIES. In order to induce the Mortgagee to
make the Grant, the Mortgagor represents and warrants that: (a) there are no actions, suits or
proceedings pending or threatened against or affecting the Mortgagor or any portion of the
Mortgaged Property, or involving the validity or enforceability of this Mortgage or the priority of
its lien, before any court of law or equity or any tribunal, administrative board or governmental
authority, and the Mortgagor is not in default under any other indebtedness or with respect to any
order, writ, injunction, decree, judgment or demand of any court or any governmental authority;
(b) the execution and delivery of this Mortgage and all other Grant Documents do not and shall
not (i),Violate any provisions of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award applicable to the Mortgagor or any other person executing the
Agreement, this Mortgage or other Grant Documents, nor (ii) result in a breach of, or constitute a
default under, any indenture, bond, mortgage, lease, instrument, credit agreement, undertaking,
contract or other agreement to which the Mortgagor or such other person is a party or by which
either or both of them or their respective properties may be bound or affected; (c) this Mortgage
constitutes a valid and binding obligations of the Mortgagor and any other person executing the
same, enforceable against the Mortgagor and such other person(s) in accordance with their
respective terms; (d) there is no=fact that the Mortgagor and any guarantor(s) of the Grant have
not disclosed to the Mortgagee in writing that could materially adversely affect their respective
properties, business or financial conditions or the Mortgage Property or any other collateral for
the Grant; (e) FFC, the Mortgagor and any guarantor(s) of the Grant have duly obtained all
permits, licenses, approvals and consents from, and made all filings with, any governmental
authority (and the same have not lapsed nor been rescinded or revoked), or, if not yet obtained,
the Mortgagor shall obtain the same as and when required, which are necessary in connection
with the execution and delivery of this Mortgage and any other Grant Document, the making of
the Grant, the performance of their respective obligations under any of the Grant Documents, or
the enforcement of any Grant Document; and that all such representations and warranties shall
survive the closing of the Grant and any bankruptcy proceedings.
26. SEVERABILITY OF INVALID PROVISIONS. In the event any provision of the
Agreement and or this Mortgage should be held unconstitutional, illegal or unenforceable for any
reason, such provision shall not affect, alter, or otherwise impair any other provision of the
Agreement and or this Mortgage.
27. NO WAIVER. It is expressly agreed and understood that a waiver by the Mortgagee of
any right or rights conferred to it hereunder with regard to any one transaction or occurrence shall
not be deemed a waiver of such right or rights to any subsequent transaction or occurrence. It is
further agreed that any forbearance or delay by the Mortgagee in the enforcement of any right or
remedy hereunder shall not constitute or be deemed a waiver of such right or remedy.
28. GOVERNING LAW. This Mortgage shall be construed and enforced pursuant to the
laws of the State of Florida, excluding df1 principles of choice of laws, conflict of laws and
comity.
29. HEADINGS. The headings of the articles, sections, paragraphs and subdivisions of
this Mortgage are for convenience and ease of reference only, and are not to be considered a part
hereof, and shall not limit or otherwise affect any of the terms or provisions hereof.
Page 9 of 14 Pages
GENDER AND NUMBER. In this Mortgage and the Agreement it secures, the singular
de the plural and the masculine shall include the feminine and neuter.
.RTIES BOUND; NO ORAL MODIFICATIONS. Each and every of the terms,
d conditions contained herein shall be binding upon the parties hereto and their
heirs, assigns and devisee. This Mortgage is not subject to modification other than
ritten document or instrument executed by the party or parties to be charged with such
modification.
32. WAIVER OF TRIAL BY JURY. THE MORTGAGOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS MORTGAGE, OR
ANY OF THE GRANT DOCUMENTS OR THE FINANCING CONTEMPLATED
HEREBY, OR ANY COURSE OF •CONDUCT, COURSE. OF DEALINGS,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
MORTGAGEE EXTENDING THE GRANT SECURED BY THIS MORTGAGE.
IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and
year first above written. .
Sign :, ea e.. s elivere
• ur pr ce./i�
Ati'r►
ri. •/�Y
lint Name: ', ,4"M0 0141EL
Old Centrust Bu'; • ing P .firer ju*, a'Florida
general partn
,General Partner
Page 10 of414 Pages
OF FLORIDA )
Y OF MIAMI-DADE )
FOREGOING INSTRUMENT'`was acknowledged before me on this �3 A92 day of.
eaee e•2002 by /14,0it/ , as of
, General Partner of Old Centrust Building Partnership, a Florida
general partnership, on be alf of the partnership, who is personally known to me or who
produced 1=MAu r/ 414 / • NG identilTGatio r d did/did not take
an oath.
�PENE .DEG —re 4
Name of Notary Public, typed, printed or stamped
NOTARY PUBLIC STATE OF FLORIDA
AT LARGE Irene Del Sol
CAMMISSIQN t rOO281N EXAMS
Serial number, if any. - E ryppY�,t.,+€ topern c g
li • fUAS
WAND nw»Ore,rwwSUM.a.we
(Seal)
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
2002 by , as of
, General Partner of Old Centrust Building Partnership, a Florida
general partnership, on behalf of the partnership, who is personally known to me or who
produced as identification and did/did not take
an oath.
IT-Flagler First•Mengage t2.17-02
Signature of Notary Public
Name of Notary Public, typed, printed or stamped
NOTARY PUBLIC STATE OF FLORIDA
AT LARGE
Serial number, if any:
(Seal)
Page 11 of 14 Pages
EXHIBIT "A"
Legal Description of the Property
and the West One -Half of Lot 12 in Block 117 North, City of Miami, according to the Plat
thereof recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida.
P
Page 12 of 14 Pages
None.
1
EXHIBIT B
PERSONAL PROPERTY
Page 13 of 14 Pages
EXHIBIT C
OTHER ENCUMBRANCES:
All encumbrances disclosed on Chicago Title Insurance Company Title Insurance Commitment
No. 300212690, effective as of November 15, 2002 at 6:00 A.M.
STATE OF FLORIDA. COUNTY Of DADE
I HEREBY CERTIFY Mal this is a t oLY 01Me of
nnq,narltn sot(. on tv�
TOU
WITNESS mY?WITOt(.c' a!'
HARVEY VIN, , �� Court n and Coca y
By D.C.
-- Page -14 of 14 Pages