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HomeMy WebLinkAboutExhibit 1SETTLEMENT AGREEMENT This Agreement is effective as of March , 2012, between and among City of Miami, a municipal corporation (the "City"), Olympia Building Partners, Ltd. ("OBP" or "Tenant") and Olympia Residential Building Partners, Ltd. ("ORBP" or "Subtenant"). Whereas, the parties have long-standing lease and lending transactions between and among them involving portions of the property referred to as the Olympia Building, located at 8 SE 2d Avenue, Miami, Florida (the "Property"); and Whereas, the parties are engaged in two lawsuits concerning the Property, that is, (1) City of Miami v. Olympia Building Partnership, Ltd., Miami -Dade County Circuit Case No. 03-28667 CA 27 (the "Lease Case") and (2) City of Miami v. Olympia Residential Building Partners, Miami - Dade County Circuit Case No. 11-11153 CA 27 (the "Note" case), collectively referred to as the "Actions;" and Whereas, the parties wish to resolve all claims which have been, or which could be, raised, in connection with the Property, any indebtedness related to same, and any encumbrances on same; It is agreed as follows: 1. OBP and ORBP shall relinquish any interest in the Property, effective as of 2. OBP shall assign all leases in effect to the City or its designee, account for and turn over all tenant security deposits, and account for and turn over funds sufficient to pay the anticipated ad valorem tax bill for 2012, pro rata from January 1, 2012 to the date of relinquishment (collectively, the "OBP Deliverables"). 3. The City shall fully execute and deliver the following documents to counsel for OBP and ORBP substantially in the form attached hereto, along with proof that execution of this Settlement Agreement and these following documents were fully authorized in accordance with the City's legal requirements: a. Release and Termination of Lease Agreement between City and OBP (Exh. "A"); b. Release and Termination of Sublease Agreement between and among City, OBP and ORBP (Exh. "B"); Settlement Agreement Page 2 c. A receipt for the tenants' security deposits (Exh. "C"); d. Satisfaction and Cancellation of Promissory Note ($1.5mm) (Exh. "D"); e. Satisfaction and Cancellation of Promissory Note ($600k) (Exh. "E"); f. The original notes referred to in d and e above, or a Lost Note Affidavit for each in the form attached as Exh. g. Satisfaction of Mortgage given by ORBP (S1.5mm)(Exh. "G"); and h. Satisfaction of Mortgage given by ORBP ($600k) (Exh. "H"). (collectively, "City Deliverables") 4. The OBP Deliverables and the City Deliverables shall be provided by each party to counsel for the other party within days of the date of this Settlement Agreement, to be held in escrow by said counsel. Once all Deliverables have been provided to counsel in escrow, the City shall dismiss the Actions, with prejudice, each party to bear its own fees and costs. 5. Once the Actions have been dismissed, counsel shall release the Deliverables to their respective clients, and OBP and ORBP shall be entitled to record all recordable documents. 6. Except for the obligations imposed by this Settlement Agreement, the parties (together with their successors, assigns, employees, officers and directors) release each other (together with their successors, assigns, employees, officers and directors) from any claims which they have or could have had in connection with the Property, known or unknown. This release includes, but is not limited to, claims relating to rent, maintenance, loan payments and management related to the Property. 7. All negotiations or discussions prior to the execution of this Agreement have all merged into this Agreement. Each party to this Agreement hereby acknowledges that it has not relied upon anything not contained in this Agreement, including prior verbal and written representations, if any, prior to signing this Agreement. 8. The Parties acknowledge and agree that this Agreement may be executed in multiple counterparts, and transmitted via facsimile, and that each such counterpart (whether transmitted via facsimile or otherwise), when executed, shall constitute an integral part of one and the same agreement between the parties. 9. Each party to this Agreement acknowledges and agrees that it has had the opportunity to, and has, consulted counsel prior to signing this Agreement and agrees to its terms after such consultation. Each party admits that its authorized representative signing it on their behalf is of legal age, sound mind and competent to sign this Agreement and understands each of its terms. Settlement Agreement Page 3 10. This Agreement may not be modified except by a written agreement signed by all parties hereto. [EXECUTION PAGES FOLLOW] IN WITNESS WHEREOF, the CITY OF MIAMI has caused these presents to be executed in its name and its official seal to be hereunto affixed, by its proper officers thereunto duly authorized., this day of March, 2012, CITY OF MIAMI, a municipal corporation of the State of Florida By: Johnny Martinez City Manager STATE OF FLORIDA ) ) ss COUNTY OF MIAMI-DADE) Before me, the undersigned authority, personally appeared Johnny Martinez, City Manager of the City of Miami, 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 executed said instrument for the purposes therein expressed. Witness my hand and official seal in the County and State last aforesaid this day of March, 2012. PRINTED. STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC NAME OF NOTARY PUBLIC STATE OF FLORIDA My Commission Expires: Settlement Agreement Page 4 OLYMPIA BUILDING PARTNERS, LTD., a Florida limited partnership By: Name: Title: STATE OF FLORIDA ) ) ss COUNTY OF MIAMI-DADE ) Sworn to, subscribed and acknowledged before me, the foregoing instrument was acknowledged before me this day of March, 2012, by as of Olympia Building Partners, Ltd., a Florida limited partnership who is personally known to me or produced a driver's license as identification. Witness my hand and official seal in the County and State last aforesaid this day of March, 2012. PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC NAME OF NOTARY PUBLIC STATE OF FLORIDA Settlement Agreement Page 5 OLYMPIA RESIDENTIAL BUILLDING PARTNERS, LTD., a Florida limited partnership By: Name: Title: STATE OF FLORIDA ) ) ss COUNTY OF MIAMI-DADE) Sworn to, subscribed and acknowledged before me, the foregoing instrument was acknowledged before me this day of March, 2012. by as of Olympia Residential Building Partners, Ltd., a Florida limited partnership who is personally known to me or produced a driver's license as identification. Witness my hand and official seal in the County and State last aforesaid this day of March, 2012. PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC NAME OF NOTARY PUBLIC STATE OF FLORIDA RELEASE AND TERMINATION OF LEASE AGREEMENT THIS RELEASE AND TERMINATION OF LEASE AGREEMENT (this "Agreement") is entered into as of the _ day of March, 2012, by and between The City of Miami, a municipal corporation of the State of Florida ("Landlord"), and Olympia Building Partners, Ltd., a Florida limited partnership (Tenant"). WITNESSETH: WHEREAS, on or around March 30, 1994, Landlord and Tenant entered into that certain Lease Agreement (as amended, the "Lease") for that certain property located at 8 SE 2nd Avenue, Miami, Florida (the "Premises"); WHEREAS, the Lease has a term of forty (40) years (the "Lease Term"); WHEREAS, Tenant and Landlord agreed to terminate the Lease prior to expiration of the Lease Term and desire to release each other from any and all liabilities in any way related to the Lease, subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises, and for $10.00 and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. The above recitals are true and correct and are incorporated herein as if repeated at length. 2. The Lease is rescinded, terminated, and canceled so that all rights, duties and obligations set forth therein or arising therefrom have terminated and are null, void and of no further force or effect for any purpose. Landlord and Tenant hereby remise, release, acquit, satisfy and forever discharge each other of and from all, and any manner of, action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, liabilities, judgments, executions, claims and demands whatsoever, in law or in equity, which either party ever had, now has, or which any personal representative, successor, heir or assign of either party, hereafter can, shall or may have, against the other party, for, upon or by reason of any matter, cause or thing arising from or in connection with the Lease, from the beginning of time to the day hereof and forever. The foregoing release of Landlord and Tenant shall be understood to also release each and every of their partners, and its and their officers, directors, shareholders, employees and lenders, and all of their respective agents, successors and assigns.. 3. Landlord represents and warrants to Tenant that Landlord is the sole owner of the Premises and that it has full power and authority to execute this Agreement. Exhibit "A" 4. This Agreement may be signed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same document. 5. If an action is begun, or a lawyer is retained by Landlord or Tenant, to enforce this Agreement or collect any sums due as provided in this Agreement or to collect any damages for breach of this Agreement, against the other, the prevailing party in such action shall be entitled to collect from the other party all reasonable legal fees and expenses incurred at both the trial and appellate levels. IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto, by and through their duly authorized representatives, as of the date set forth above. LANDLORD: The City of Miami, a municipal corporation of the State of Florida By: Print Name: Title: STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this _ day of 2012, by , as , of The City of Miami, a municipal corporation of the State of Florida, on behalf of said entity. He/She is either personally known to me or has produced as identification. Notary Public, State of Florida Print Name: (SEAL) My Commission Expires: TENANT: Olympia Building Partners, Ltd., a Florida limited partnership By: Print Name: Title: STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this _ day of , 2012, by , as , of Olympia Building Partners, Ltd., a Florida limited partnership, on behalf of said limited partnership. He/She is either personally known to me or has produced as identification. Notary Public, State of Florida Print Name: (SEAL) My Commission Expires: RELEASE AND TERMINATION OF SUBLEASE AGREEMENT THIS RELEASE AND TERMINATION OF SUBLEASE AGREEMENT (this "Agreement") is entered into as of the _ day of March, 2012, by and between Olympia Building Partners, Ltd., a Florida limited partnership ("Sublessor"), Olympia Residential Building Partners, Ltd., a Florida limited partnership ("Sublessee"), and The City of Miami, a municipal corporation of the State of Florida ("Landlord"). WITNESSETH: WHEREAS, on or around March 30, 1994, Landlord and Sublessor entered into a Lease Agreement (as amended, the "Lease") for that certain property located at 8 SE 2nd Avenue, Miami, Florida (the "Premises"); WHEREAS, Sublessor and Sublessee entered into that certain Sublease dated December 7, 1994 (as amended, the "Sublease") for all or a portion of the Premises. WHEREAS, the Sublease has a term of forty (40) years; WHEREAS, Landlord and Sublessor terminated the Lease. WHEREAS, Sublessor and Sublessee desire to terminate the Sublease and the parties hereto desire to release each other from any and all liabilities in any way related to the Sublease, subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises, and for $10.00 and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. The above recitals are true and correct and are incorporated herein as if repeated at length. 2. The Sublease is rescinded, terminated, and canceled so that all rights, duties and obligations set forth therein or arising therefrom have terminated and are null, void and of no further force or effect for any purpose. Sublessor, Sublessee, and Landlord hereby remise, release, acquit, satisfy and forever discharge each other of and from all, and any manner of, action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, liabilities, judgments, executions, claims and demands whatsoever, in law or in equity, which either party ever had, now has, or which any personal representative, successor, heir or assign of either party, hereafter can, shall or may have, against the other party, for, upon or by reason of any matter, cause or thing arising from or in connection with the Sublease, from Exhibit "B" the beginning of time to the day hereof and forever. The foregoing release of Sublessor, Sublessee, and Landlord shall be understood to also release each and every of their partners, and its and their officers, directors, shareholders, employees and lenders, and all of their respective agents, successors and assigns.. 3. The parties each represent and warrant to each other that each has full power and authority to execute this Agreement. 4. This Agreement may be signed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same document. IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto, by and through their duly authorized representatives, as of the date set forth above. [EXECUTION PAGES FOLLOW] SUBLESSOR: Olympia Building Partners, Ltd., a Florida limited partnership By: Print Name: Title: STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this _ day of , 2012, by , as , of Olympia Building Partners, Ltd., a Florida limited partnership, on behalf of said entity. He/She is either personally known to me or has produced as identification. Notary Public, State of Florida Print Name: (SEAL) My Commission Expires: SUBLESSEE: Olympia Residential Building Partners, Ltd., a Florida limited partnership By: Print Name: Title: STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this _ day of , 2012, by , as , of Olympia Residential Building Partners, Ltd., a Florida limited partnership, on behalf of said limited partnership. He/She is either personally known to me or has produced as identification. Notary Public, State of Florida Print Name: (SEAL) My Commission Expires: LANDLORD: The City of Miami, a municipal corporation of the State of Florida By: Print Name: Title: STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this _ day of , 2012, by , as , of The City of Miami, a municipal corporation of the State of Florida, on behalf of said entity. He/She is either personally known to me or has produced as identification. Notary Public, State of Florida Print Name: (SEAL) My Commission Expires: RECEIPT OF TENANT SECURITY DEPOSITS TO: Olympia Building Partners, Ltd. and Olympia Residential Building Partners.. Ltd (collectively, "OBP"). FROM: City of Miami, a municipal corporation (the "City") DATE: March .2012 RE: Olympia Building, 8 SE 2d Avenue, Miami, Florida City hereby acknowledges receipt of $ as payment in full of all tenant security deposits being held by or on account of any leases entered into by OBP. CITY OF MIAMI, a municipal corporation of the State of Florida By: Johnny Martinez City Manager Exhibit "C" Prepared by and after recording return to: Viviana E. Aspuru, Esq, Rennert Vogel Mandler & Rodriguez, P.A. 100 S.E. 2" Street Suite 2900 Miami, FL 33131 SATISFACTION AND CANCELLATION OF PROMISSORY NOTE WHEREAS, Olympia Residential Building Partners, Ltd., a Florida limited partnership (the "Borrower"), executed and delivered to the City of Miami, a municipal corporation of the State of Florida, acting by and through the Department of Development and Housing Conservation (the "Lender") that certain Promissory Note dated May 5, 1995 in the amount of $1,500,000.00 (the "Promissory Note"). NOW THEREFORE, for good and valuable consideration, Lender does hereby acknowledge full payment and satisfaction of said Promissory Note, and all other loan documents executed in connection therewith, and the Promissory Note and all other indebtedness and obligations secured thereby are hereby cancelled. IN WITNESS WHEREOF the Lender has executed this instrument this day of March, 2012. The City of Miami, a municipal corporation of the State of Florida By: Name: Title: (seal) STATE OF FLORIDA COUNTY OF MIAMI-DADE Sworn to, subscribed and acknowledged before me, the foregoing instrument was acknowledged before me this day of March, 2012, by as of the City of Miami, a municipal corporation of the State of Florida who is personally known to me or produced a driver's license as identification. NOTARY PUBLIC (Notary Seal) "Exhibit D" Prepared by and after recording return to: Viviana E. Aspuru, Esq. Rennert Vogel Mandler & Rodriguez, P.A. 100 S.E. 2"° Street Suite 2900 Miami, FL 33131 SATISFACTION AND CANCELLATION OF PROMISSORY NOTE WHEREAS, Olympia Residential Building Partners, Ltd., a Florida limited partnership (the "Borrower"), executed and delivered to the City of Miami, a municipal corporation of the State of Florida, acting by and through the Department of Development and Housing Conservation (the "Lender") that certain Promissory Note dated May 5, 1995 in the amount of $600,000.00 (the "Promissory Note"). NOW THEREFORE, for good and valuable consideration, Lender does hereby acknowledge full payment and satisfaction of said Promissory Note, and all other loan documents executed in connection therewith, and the Promissory Note and all other indebtedness and obligations secured thereby are hereby cancelled. IN WITNESS WHEREOF the Lender has executed this instrument this day of March, 2012. The City of Miami, a municipal corporation of the State of Florida By: Name: Title: (seal) STATE OF FLORIDA COUNTY OF MIAMI-DADE Sworn to, subscribed and acknowledged before me, the foregoing instrument was acknowledged before me this day of March, 2012, by as of the City of Miami, a municipal corporation of the State of Florida who is personally known to me or produced a driver's license as identification. NOTARY PUBLIC (Notary Seal) "Exhibit E" LOST NOTE AFFIDAVIT STATE OF FLORIDA) COUNTY OF MIAMI-DADE) That having been duly sworn deposes and says: 1 That the City of Miami, a municipal corporation of the State of Florida, acting by and through the Department of Development and Housing Conservation (the "City") is the lawful owner and holder of that certain Promissory Note executed by Olympia Residential Building Partners, Ltd., a Florida limited partnership ("Olympia") on May 5, 1995 in the original principal sum of $1,500,000.00 payable to the order of the City, a true and correct copy of which is attached as Exhibit A, and that certain Promissory Note executed by Olympia on May 5, 1995 in the original principal sum of $600,000.00 payable to the order of the City, a true and correct copy of which is attached as Exhibit B (collectively, the "Notes"). 2. That the City has been unable to locate the Notes after a diligent search and believes that the Notes have been lost, mislaid, destroyed or stolen. That, said Notes and all other loan documents executed in connection therewith have been satisfied and cancelled. 4. That if the Notes shall ever come into the possession or custody of the Affiant, the Affiant will promptly, and without further consideration, surrender the original Note or Notes to Olympia. 5. That the City has not transferred, assigned, or conveyed either of the Notes to any person or entity. Effective as of the _ day of February, 2012. Print Name: Name: Title: STATE OF FLORIDA COUNTY OF MIAMI-DADE ) Sworn to, subscribed and acknowledged before me, the foregoing instrument was acknowledged before me this day of February, 2012, by , as of the City of Miami, a municipal corporation of the State of Florida who is personally known to me or produced a driver's license as identification. NOTARY PUBLIC (Notary Seal) Exhibit "F"