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07-14-1997 " ' '. ',~ .;',:' : .~ "';."'. ,. ; ,.,'~., r' " , . . . . , "., ' " , , . '" . " , , , ' , " > ," Agenda/C 7-14-97 . . J . " I.:,' ..' ' . /377 . 't ,~ -; . I' ; I I { l I' ' ..' I I ' " 1 '.. I . ( (, \ '. I I ' ' :' ,-<....!'. '. '~~;: ~'t',:. -~,.. ". >., .. ..-.... .., .. ,J-, . ,... .."". ...,....__,_;....~,.,."....,tl-.~);!,~.... ')t'..;H' .;.Ifr,'t~.p""";.>l. :;>$"_""~,~ .' ,_, , ::,~';\1. .~ .;,. <: ^ ", ' ,.,...\. - ' ,""'"1,. t"~t.~lO' Tlif ......* ...,~._\ -\),,''''''I',~~.- .." ~.' "'.,....,~... \~.....'.... , ~-~.... ..~~~",\!I, ',':;.~'O\ ., -.oJ,...." - Ti,. - _ "_.'i,~,,__~"_~, -.-_ --~.. ' , ~~ ",r=-:. - ,': , ,......... ~-- ~\ ., . . -.. ' .. , ~\ -~-.. .. ~ .. , --;.. .,_.. .~t. " .. ~"'W"'~{},\ .............,~TEl'".." #1'" ' COMMUNI1Y REDEVELOPMEt-.'T AGENCY 'CITY OF CLEARWATER POST OFFICE Box 4748, C1.EARWATF.R, FLORIDA' 33758-4748 CITY HALL, 112 SOlJ11i OSCEOLA AVENUE, CLEAR~'ATER, FLORIDA 33756 TELEPHONE (813) 5624040 FAX (813) 562.4052 AGENDA COMMUNITY REDEVELOPMENT AGENCY Monday, July 14, 1997 1:00 p.m. - Commission Chambers 1. Call to Order 2. Approval of Minutes - June 16, 1997 3. New Business Proposed Atrium Settlement 4. Assistant City Manager Verbal Reports 5. Other Business 6. Adjournment '\ /~i @ "EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPWYER" IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DMSION ATRlUM AT CLEARWATER, LTD., a Florida Limited Partnership, by and through ATRIUM AT CLEARWATER, INC., General Partner, Plaintiff, vs. Case No. 95-003550-CI-021 mE CITY OF CLEARWATER, FLORIDA a body politic and a political subdivision of the State of Florida, and COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, a body politic and a political subdivision of the State of Florida and the CITY OF CLEARWATER, Florida, Defendants. I SETTLEMENT AGREEMENT This Settlement Agreement is made and entered into effective as of , 1997, by and among the City of Clearwater, Florida (the "City"), the Community Redevelopment Agency of the City of Clearwater, Florida (the "eRA"), and Atrium at Clearwater, Ltd., a Florida limited partnership (the "Atrium"). RECITALS WHEREAS, the City, the CRA, and the Atrium entered into that certain Sale-Purchase Agreement dated October 29, 1993 (the "Sale-Purchase Agreement"), together with that certain Addendum to Sale-Purchase Agreement, also dated October 29, 1993 (the "Addendum"); and 1 \ .../ ,) " WHEREAS, the eRA and the Atrium entered into a separate agreement entitled Option to Purchase, dated November 29, 1993 (the "Option"), in which the City joined; and WHEREAS, the City and the Atrium entered into a separate agreement entitled Right of First Refusal, dated November 29, 1993 (the "Right of First Refusal"); and WHEREAS, pursuant to the Option, the Atrium had the right to purchase certain real property described in Exhibit "A" to the Option; and WHEREAS, the Atrium sought to exercise its rights under the Option, which resulted in a good-faith dispute between the Atrium~ the eRA, and the City regarding the respective rights, duties and obligations of the parties under the Option; and WHEREAS, the dispute ultimately resulted in the filing of the above-styled lawsuit; WHEREAS, to avoid the risk, cost, and uncertainty of prolonged litigation, the parties in the above-styled lawsuit~ which are the same parties to this Agreement, have agreed to settle their differences upon the terms and conditions contained herein; NOW, THEREFORE, in conside.ration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. The above recitals are true and correct and are incorporated herein by this reference. 2. Paragraphs 5 and 6 of the Option describe the process by which the purchase price for the property would be determined. eRA and the Atrium have mutually agreed to set a purchase price of Five Hundred Thousand Dollars ($500,000.00) for the property to be conveyed pursuant to the Option, as modified herein. Four Hundred Fifty Thousand Dollars ($450,000.00) shall be attributable to the Garage Parcel (as hereafter defined) and Fifty Thousand Dollars ($50,000.00) shall be attributable to the 25-space Parcel (as hereafter defined). -2- ~,,)) \ .' I \' I I . , " \ / " .' \ J I I ,'I "', I ' , ' ," '" ,I; 3. Upon executing the Option, the Atrium paid to the eRA $50,000.00. At Closing (as defined hereafter), the Atrium shall receive a credit for the $50,000.00 it previously paid, leaving a balance due of $450,000.00 (subject to other adjustments and prorations as set forth herein and in the Option). 4. At Closing, eRA shall convey to the Atrium, by special warranty deed, a portion of the property described in Exhibit "A" to the Option. As reflected in the sketch attached hereto as Exhibit "A," it is the intent of the parties that CRA will convey that portion of the parking garage (including the bottom two floors) not previously conveyed to the Atrium; provided, however, that the CRA will not be obligated to convey the real property upon which is located approximately 31 surface parking spaces. With respect to the property described on Exhibit "A" to the Option, the City and/or the CRA shall procure, at its sole cost and expense, a survey that identifies, by way of separate legal description, the property identified on Exhibit "A" attached hereto as the "Garage Parcel" and the property upon which the 31 surface parking spaces are located and which is identified on Exhibit "A" as the "31-space Parcel. II The survey as to the Garage Parcel shall be sufficient so as to allow the title company to delete the survey exception for the title insurance policy for said parcel. Said survey shall be certified to City, the eRA, the Atrium, FA TIC, and TZBZU, and shall be delivered to the Atrium at least five (5) days prior to Closing. The legal descriptions for the deeds shall be taken from the survey. 5. In addition to the above conveyance, and as a swap for the 3 I-space Parcel, the City shall convey to the Atrium the real property shown on Exhibit "A," which contains approximately 25 surface parking spaces (the "2S-space Parcel"). This conveyance shall be by special warranty deed and the Atrium shall not be required to pay any additional compensation for said property above and beyond the purchase price set forth above. 6. a. Consistent with paragraph 8 of the Option, the special warranty deeds from the eRA and the City shall be free and clear of all liens and encumbrances except easements and restrictions of record and t.axes for the year of Closing. The eRA and the City shall furnish title -3- ,j insurance insuring title to aU property conveyed in the total amount of $500,000. The insurance shall be provided by First American Title Insurance Company ("F A TIC"), through its agent, Tew, Zinober, Barnes, Zimmet & Vnice ("TZBZU"), at promulgated rates. The CRA and the City, through its counsel, shall deliver to the Atrium's counsel, at least five (5) days prior to closing, a title insurance commitment for the Garage Parcel and the 25-space Parcel, together with copies of all documents described as exceptions in Schedule B-II of the commitment. Consistent with paragraph 8 of the Option, the cost of the title insurance policy (including any mortgagee policy resulting from any financing which the Atrium may obtain), search fees, any and all appraisal fees for appraisals ordered by the Atrium (already incurred or incurred in the future), the cost of recording the deed and documentary stamp taxes on the deed, all shall be paid by the Atrium at Closing. The Atrium also shall pay all costs associated with any financing which it may obtain from an outside lender. The eRA and the City shall pay for any appraisals which they ordered in the past or order in the future. Consistent with the provisions contained hereafter, each party to this Agreement shall bear its own attorneys' fees related to the real estate transaction(s) contemplated in the Option, the Sale-Purchase Agreement, the Addendum and herein. b. With respect to the 25-space Parcel, Atrium already has procured a survey. Atrium shall be responsible for this cost, together with any additional cost or expense associated' with updating the survey (including, but not limited to, proper certifications) so that, if Atrium so desires, the survey exception can be deleted from the title insurance policy. Any such updated survey shall be certified to the same parties identified in paragraph 4 above and shall be delivered to TZBZU at least five (5) days before Closing. The legal description for the deed shall be taken from the survey. 7. With respect to the Garage Parcel, the parties acknowledge that there is located thereon certain equipment (including software) used in the operation of the property as a parking garage. Atrium has reviewed and inspected such equipment to determine what portion of the equipment Atrium believes is necessary for the continued operation of the property as a parking -4- '~ , /' \", ': ,!. ~ ~, j \ \ \ I f ( , \ I I I \ \ ' ;',' I " .,.' garage facility. Atrium has determined that alJ of the equipment, except for the cash register, will be needed. It is therefore agreed that all of the equipment currently located on the Garage Property and used in connection with the operation of the property as a parking garage (including any software, to the extent said software legally can be assigned or otherwise transferred, but specifically excluding the cash register) shall remain on and with the Garage Property at Closing. 8. With respect to the Garage Parcel, the parties acknowledge that the City has entered into short-term leases with various persons for the use of the parking garage (the "Parking ,Leases"). In addition, the City currently is using the garage for its own use. Therefore, the parties agree as follows: a. The City represents that there are approximately sixty-one (61) Parking Leases, all of which are assignable and all of which are cancelable upon thirty (30) days written notice. Upon execution hereof, the City will not enter into any additional leases for parking without the Atrium's consent. At least five (5) days before Closing, the City shall provide to Atrium a list of all Parking Leases. At Closing, the City shall assign its rights under the Parking Leases to the Atrium and shall deliver to Atrium any and all monthly access card deposits. Income generated from the Parking Leases shall be prorated at Closing. b. Atrium agrees to allow up to sixty (60) City vehicles to use the parking garage, without cost, from the date of the actual Closing until September 30, 1997. Thereafter, Atrium agrees to provide the City with spaces, to the extent and so long as spaces are available, at a cost, per vehicle, not to exceed Atriwn's published rates for monthly parking. 9. The Atrium hereby forever waives the requirement set forth in paragraph 9 of the Option that CRA provide purchase money financing. Instead, consistent with paragraph 11 of the Option, the Atrium's payment shall be in cash, wire transfer, or certified funds. 10. Consistent with paragraph 13 of the Option, real estate taxes and assessments shall be prorated as of the date of Closing. -5- ,~) 11. The Atrium further waives and forever releases the City and the CRA from any obligation contained in paragraph 9 of the Addendum. Neither the CRA nor the City shall have any commitment to spend money for improvements to the area south of Cleveland Street or to any other portion of the CRA district or the City. 12. A closing (the "Closing") shall take place to consummate the above-referenced real estate transactions on or about June 30, 1997. The Closing shall take place at the Clearwater office of Tew, Zinober, Barnes, Zimmet & Unice. In addition to the standard real estate documents required to be signed at Closing (i.e., special warranty deeds, no lien affidavits, closing statements, etc.), the Atrium shall execute and deliver to the City and the CRA general releases in favor of both the City and the eRA, and the City and the eRA shall execute and deliver to the Atrium general releases in favor of the Atrium. The general releases shall be in the forms attached hereto as Exhibit "B" and Exhibit "C," respectively. 13. Also at Closing, the parties hereto shall deliver to Tew, Zinober, Barnes, Zimmet & Unice ajoint stipulation of dismissal with prejudice in the form attached hereto as Exhibit "D." Tew, Zinober, Barnes, Zimmet & Unice shall, immediately upon closing, file the original in the Court file. 14. With respect to the Right of First Refusal, the City and the Atrium mutually acknowledge that it remains valid and enforceable in accordance with its tenns. The Atrium specifically acknowledges that the police station located on the property as of the date of the Right of First Refusal has been razed and that the parking garage that is being built or which has been built in its place constitutes a "public purpose" (for purposes of paragraph 5 of the Right of First Refusal) so long as said garage is owned, used or operated by the City. 15. With respect to the 25-space Parcel, the parties acknowledge that said parcel has been used by the City for public parking. As a result, there are a number of parking meters located on the property. At least ten (10) days prior to Closing, the Atrium shall provide written notice to the City whether it desires to have the City (i) cut the poles off at ground level and cap -6- ") 'I'. \ 'I' I .' I ~, ,\ 1~ 'I', ' 'r l' \, ' /', I I ! I f I' '" t," " " . \ I' '/ \ ' off the holes or, alternatively, (ii) remove the meter heads from the poles and leave the poles standing. In the absence of written notice, the City shaH simply remove the meter heads and leave the poles. Regardless of which option the Atrium chooses, the work shall be done by the City at the City's sole cost and expense. 16. Unless specifically modified by this Settlement Agreement, the terms of the Option, the Sale-Purchase Agreement, and the Addendum thereto shall continue to govern, as applicable. 17. By entering into this Settlement Agreement, no party admits any liability or 'wrongdoing. Each party hereto agrees to bear an costs and expenses associated with the dispute and litigation including, but not limited to, attorneys' fees, deposition costs, expert fees and costs, consulting fees and costs, travel expenses, and any and all other expenses associated with this matter. Except as specifically provided below, no party shall have the right to seek recovery or reimbursement of any such costs from any other party hereto. 18. Each party hereto hereby waives all claims previously asserted in the above-styled litigation and agree that the terms of this Settlement Agreement now govern. In the event that it becorr,,,,., uc\,;~:~ary for any party hereto to enforce the terms of the Settlement Agreement, such party, if successful, shall be entitled to reimbursement of reasonable attorneys' fees and costs associated with the bringing of the enforcement action. 19. The parties hereto agree to cooperate with each other before, during and after Closing to accomplish the terms of this Settlement Agreement and the intent of the parties, as contained herein. 20. Obligations of any party hereto that are clearly intended to take place after Closing shall survive Closing. -7- ".l . ," ...., , ' ~", I , ',' . ~ -' < '...' . " . ' ~ ", :) ~ ~ 1 J I } . WHEREFORE. the parties have set their hands and seals hereto effective as of the date set forth above. I I I ATRIUM AT CLEARWATER, LTD., a Florida limited partnership By: ATRIUM AT CLEARWATER, INC., as general partner By: Its: Countersigned: CITY OF CLEARWATER, FLORIDA Rita Garvey Mayor-Commissioner Approved as to form and legal sufficiency: By: City Manager Attest: Pamela K. Akin City Attorney Cynthia E. Goudeau City Clerk Attest: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA Secretary Robert Keller, Executive Director lW96759 -8- , ~t ,~lj I \ \ tI I l ' , I, \ J' r ;:J "I ~ ~ ~ ~ (.\ ;--Y\ \J W\ ~\J\ \&"~5 \' 1"_ \.:J C). -< 0. ~e ~ 0.'(' c.e. \ " \\ ~ \.. 5 p(lC~ \'Q.'<'U \ ,1-.> \\ ~ 5 - ~l?a.c..c:::: \> a. '('" c.e. \ " "~ ""1 EXHIBIT "A" ~;~'~~ga~S~ I 0, ~ ~ [fa' 5 ~. ~ " , ~ ~ i ~. 1!,~ ~ ~ ~ g@ ~~[~~~lR' m' ~. m ] ~ 2" ~ ft ~. fCg.~ ~.@ iii ~ ~~ a 11 ~ l& Iii' II ....!j. j I ~ 'Jj ~. ~ ~ ~ g :1 rt~t:::m~~rt~ ~ ~~(1)O~ rn !I> g 'g HI 9- ~~.~ ~~ '.\~'~': <"':0 '~~,o,~;.:: >," ,",' .', .. ' ",."" ' ' ,> ' . .. . ,', .. ' ,. ~. \ " , "'. .", ' " " ' : ' I, ',,', ','~, ,', I , t,;" " ",:,' ,',.;,., ,."..': '" ,', " l," , , " .... , " noJ " -,,'.,', ,', , i" '. '}', .;?~ > ".<~':: 1:: ii>: ,.;. ..?; ,::' ..; .l',~t,:; ',:"'~' \~.'~~;;...~..::. ~ ': ,',~:1, ,';"j.'. ;':;\". ~,...,. '."", .......,\,,, : ~'" ""', ._,~,_, .' ," ...,' ',_', ,~:'~ :. j t I l EXHIBIT "B" (Exhibit B previously provided) ; . j t , ~:} ,..~!I " ~: "",T ~. _ J:XHJBIT "C" (Exhibit C previously provided) ): ~'/::,",., ,'.. :~.'. "<.:. "'..":.':',',~~ '.'.....\' ...:'.1,,:.....:,.,..'.'..