EXHIBIT 10.12
Exhibit 10.12
Purchase Agreement - Kendall, Florida
AGREEMENT TO PURCHASE REAL PROPERTY:
This Agreement to Purchase Real Property ("Agreement") is dated October
4, 1996 for reference purposes only, and is made by and between Documentation
Corp. and Bersin Development Corp., each a Florida corporation, each as to an
undivided 50% interest ("Seller"), and Silver Diner Development, Inc., a
Virginia corporation ("Buyer").
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 Closing. The term Closing shall mean the date and event
upon which title to the Property is transferred of record to Buyer.
1.2 Contemplated Use. The term "Contemplated Use" shall mean a full
service restaurant consistent with the prototypical design of Buyer's
restaurants, containing a minimum of 220 seats and with a liquor license
allowing the sale of beer, wine and alcoholic beverages for consumption on site.
1.3 Contemplated Improvements. The term "Contemplated Improvements"
shall mean a building containing not more than 8,000 square feet inclusive of
any outdoor or covered patio areas for outside dining, if any, plus, in addition
thereto, related screened exterior dumpster pad, walkways, landscaping, lighting
and other site improvements pertaining thereto, if any; provided however, that
the width (the east-west dimension) of any building constructed on the Property
at any time shall not exceed 100 lineal feet.
1.4 Effective Date of this Agreement. This Agreement shall be effective
on, and the term "Effective Date" shall mean, the date on which this Agreement
is executed by the last designated signatory to this Agreement and a fully
executed counterpart thereof, including all exhibits hereto, has been delivered
to the other party.
1.5 Environmental Law. The term "Environmental Law" or "Environmental
Laws" shall mean all applicable federal, state and local environmental laws,
regulations, rules, ordinances, statutes, licenses, permits, orders or
restrictions relating to or affecting the Property and/or the development, use
or operation thereof with respect to Hazardous Materials and/or the use and
control thereof.
1.6 Escrow Holder. The term "Escrow Holder" shall mean Xxxxx
Xxxx Xxxxx Constant Xxxxxxxx & Bilzin, 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxx 00000.
1.7 Government Approvals. The term "Government Approvals" shall mean
any and all permits, licenses, authorizations or consents of federal, state, and
municipal governmental or quasi-governmental authorities, agencies, boards or
offices having jurisdiction over the Property, duly issued in accordance with
applicable Laws to permit Buyer to construct the Contemplated Improvements and
utilize the same for the Contemplated Use, including specifically, but not
limited to subdivisions approval, compliance with zoning requirements (or
obtaining any necessary variances or special use permits thereto or changes
therefrom), site plan approval, highway department access and curb cut
approvals, satisfaction of environmental and traffic impact study requirements
and building permits.
1.8 Hazardous Materials. The term "Hazardous Materials" shall mean any
pollution or contaminants as defined by any applicable governmental regulatory
agency, including but not limited to, hazardous or toxic substances or materials
regulated under federal, state or local environmental laws, regulations, rules,
ordinances, statutes, licenses, permits, or orders; asbestos; radon and
polychlorinated biphenyls.
1.9 Xxxxxxx Drive Portion of the Product. The term "Xxxxxxx Drive
Portion of the Project" shall mean the trapezoidal portion of the Seller's
Project which xxxxxxx Xxxxxxx Drive and consists of Parcels "E," "F," "G" and
"H," together with the parking field associated with such parcels (but excluding
the parking area located between parcels "H" and "I") all landscaping areas,
roadways and drives serving such parcels, and the grass set-back area between
such parking field and Xxxxxxx Drive, all as shown on the sketch attached hereto
as Exhibit "C".
1.10 Laws. The term "Laws" or "Law" shall mean all local, regional,
municipal, county, state, and federal statutes, regulations, ordinances, orders,
judgments, codes, rules or other laws applicable to or affecting the ownership,
operation or use of the Property or any portion thereof (including, without
limitation, health, safety, building, fire safety, liquor, subdivision,
environmental, and zoning laws).
1.11 Permitted Exceptions. The term "Permitted Exceptions"
shall mean the exceptions to title determined pursuant to paragraph
3.2.
1.12 Property. The term "Property" shall mean that certain real
property located (i) east of the northeast corner of the intersection of North
Xxxxxxx Drive and S.W. 124th Avenue in the unincorporated County of Dade, State
of Florida, as depicted in Exhibit A attached hereto and identified as Parcel F
on the Site Plan, as hereinafter defined, which Property shall be not less than
150 feet by 150 feet in size; (ii) all improvements and structures located on
the land; (iii) all easements, hereditaments and appurtenances in favor of
or benefitting the land or improvements, or any portion thereof, including
all rights, title and interest in
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and to all streets abutting or serving the land or any portion thereof; and
(iv) any items of tangible and intangible personal property, located on
and/or attached to, used in connection with, or arising in connection with, the
ownership, operation, maintenance and management of said land and
improvements.
1.13 REA. The term "REA" shall mean the Reciprocal Easement Agreement
between the owner of Seller's Project and other tenants and occupants of
Seller's Project granting easements over the common roadway areas and utility
lines of Seller's Project including the Property and governing and restricting
the use of Seller's Project, as more particularly described in paragraph 2.4.
1.14 Seller's Project. The term "Seller's Project" shall mean the
overall mixed use parcel shown on Exhibit "B", of which the Property is a part,
and depicted in bold on the site plan attached as Exhibit B to the REA (the
"Site Plan").
ARTICLE 2
TERMS OF PURCHASE
2.1 Agreement to Purchase and Sell. Buyer agrees to purchase the
Property from Seller, and Seller agrees to sell the Property to Buyer, upon the
terms and conditions contained in this Agreement.
2.2 Purchase Price. The purchase price for the Property shall
be $1,350,000.00 (the "Purchase Price").
2.3 Terms of Payment. The Purchase Price shall be paid by
Buyer to Seller as follows:
(a) Deposit. Contemporaneously with the execution of this
Agreement by Buyer, Buyer will deposit with Escrow Holder as xxxxxxx money
deposit (the "Deposit") clear funds in the amount of $150,000. The Deposit shall
be held in an interest bearing repurchase agreement or similar account under
Buyer's Federal Identification Number which is 00-0000000, and disbursed as
herein provided. If this Agreement is terminated for any reason other than
Buyer's default in its obligations under this Agreement, then the Deposit, and
any interest thereon, shall be returned to Buyer. Upon Closing the Deposit shall
be disbursed to Seller and all interest thereon shall be paid to Buyer.
(b) Balance of Purchase Price. The balance of the
Purchase Price shall be paid to the order of Seller in clear funds
as follows:
(i) the sum of $1,175,000 shall be payable at
Closing; and
(ii) the sum of $25,000 shall be payable upon
Seller's obtaining (and providing evidence thereof to Buyer) all required
Governmental Approvals to permit a minimum of forty (40) additional parking
spaces to be constructed in the grass set-back
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area currently existing in the front portion of the Xxxxxxx Drive Portion
of the Project, as same may be expanded to include land currently dedicated
for right of way, if applicable, such that there shall be a net increase of
forty (40) parking spaces within the Xxxxxxx Drive Portion of the Project
(including those in the grass set-back area, as same may be expanded as
aforesaid) above the minimum otherwise required by Section 3.9 hereof. If the
condition set forth in this subparagraph (ii) has been met as of the Closing,
then the sums required to be paid hereunder shall be due at Closing. If such
condition is not satisfied on or before December 31, 1998, then Buyer shall
be relieved of its obligation for the payment related to this condition. This
obligation shall survive Closing and be the joint and several obligation of
Buyer named herein and any assignee notwithstanding any assignment of Buyer's
rights hereunder.
2.4 Reciprocal Easement Agreement. Attached hereto as Exhibit "E" is
the form of the REA. The REA, subject to such changes as Seller may require
(whether to satisfy governmental requirements or otherwise), which changes shall
be subject to Buyer's prior written consent which shall not be unreasonably
withheld (Buyer hereby consents to the inclusion in the REA, at the sole and
absolute option of Seller, of the restriction contemplated in Section 8(c) of
the Buyer's Supplemental Declaration attached hereto and made a part hereof as
Exhibit "H"), shall, as a condition to Closing, be executed by all necessary
parties at or prior to Closing and shall be recorded in the public records
promptly thereafter. Additionally, Seller agrees that the unilateral right of
Seller to shift the north-south accessway in the middle of the parking area in
the event a direct entrance into the Center is permitted from Xxxxxxx Drive, as
contemplated in paragraph 2(a) and (c) of the REA, shall be conditioned upon
Seller's developing the Center in accordance with the alternative site plan
attached hereto as Exhibit "F," as same may be changed with Buyer's consent, not
unreasonably withheld (the "Alternative Site Plan"). Further, Seller agrees that
if such direct entrance from Rendall Drive is to be constructed and same is not
constructed (and completed) prior to the date Buyer completes construction of
its building and opens for business with the public (the "Opening Date"), then,
commencement of the construction of such entrance shall not occur until after
six (6) months from the Opening Date. Seller agrees that it will not commence
such construction activities prior to the Opening Date unless it has in good
faith determined that the construction of the entrance will be completed before
the Opening Date, as same may be reasonably projected by Buyer, and the
contract relating to the construction of such entrance requires that same be
completed prior to the Buyer's projected Opening Date. Seller shall give
Buyer not less than thirty (30) days' advance notice of the date on which
construction of the entrance is expected to commence.
ARTICLE 3
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
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3.1 In General. All of Buyer's obligations pursuant to this Agreement
are expressly conditioned upon the satisfaction or waiver by Buyer of each of
the conditions precedent set forth in this Article 3, and if any are not so
satisfied or waived by Buyer on or before the date of Closing (or by the date
specified therein, if longer or shorter), this Agreement shall be deemed
terminated and Buyer shall receive the return of the Deposit.
3.2 Approval of Title. Within forty-five (45) days following the
Effective Date, Seller shall cause a proforma title commitment written on
Commonwealth Land Title Insurance Company to be delivered to Buyer (the "Title
Report") together with hard copies of all items shown as conditions or
exceptions thereto, and, which Title Report shall commit to insure, at Closing,
Buyer's title to the Property in fee simple and Buyer's rights in and to the
easements created by the REA, subject only to the Permitted Exceptions. Seller
hereby advises Buyer that the matters included on Exhibit "D" attached hereto
(the "Title Schedule") will likely be reflected in the Title Report as
exceptions and those matters may not be objected to by Buyer and shall be deemed
Permitted Exceptions. Buyer shall have the right to review Seller's title to the
Property and to object to any exception to title (other than those reflected on
the Title Schedule) that renders title unmarketable or unusable for Buyer's
Contemplated Use and (a) is reflected in the Title Report and disclosed to
Seller by Buyer within ten (10) days after its receipt of the Title Report or
(b) is otherwise disclosed to Seller by Buyer within ten (10) days after Buyer's
first discovering same. If Buyer timely objects to an exception to title, then
on or before the earlier of the tenth (10th) day following Buyer's notice of
exception or the date for Closing, but in no event prior to October 31, 1996,
Seller shall agree to remove the exception by Closing or notify Buyer that it is
unwilling or unable to remove the exception prior to Closing. Within ten (10)
business days following Buyer's receipt of Seller's notice that it is unable or
unwilling to remove an exception to title, Buyer may elect to either (i)
terminate this Agreement, whereupon the Deposit shall be returned to Buyer, or
(ii) continue this Agreement in effect, in which event Buyer will be deemed to
have approved the previously disapproved exception. Seller's failure to provide
written notice that it is unwilling or unable to remove an exception within the
time allowed for delivery of such notice shall be deemed to evidence the
willingness and ability of Seller to remove the exception prior to Closing.
All additional exceptions to title created or discovered by Buyer subsequent
to delivery of the Title Report to Buyer shall be subject to the ten-day time
frames for notice of disapproval by Buyer and removal by Seller as set forth
above. All exceptions to title to the Property which do not render title
unmarketable or unusable for Buyer's Contemplated Use which either are
disclosed by the Title Report or are subsequently discovered by Buyer
and, in either such case, to which Buyer does not timely object are referred
to herein as the "Permitted Exceptions." Notwithstanding the foregoing,
Buyer hereby objects to, and the term "Permitted Exceptions" shall not
include, (i) any lien for payment of delinquent real property
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taxes, (ii) any item listed as a condition under Schedule B-I of the Title
Report (excluding items to be satisfied by Buyer such as payment or the
providing of evidence of its corporate status and/or authority), or any
"standard exceptions" reflected on the Title Report or Owners Title Policy
described in paragraph 5.1, and (ii) any deed of trust, mortgage, UCC financing
statement, mechanic's lien, judgment lien or other lien encumbering the
Property. Seller shall convey good and marketable title in fee simple to the
Property to Buyer at the Closing, subject only to the Permitted Exceptions.
Buyer acknowledges being advised that the Property and
adjacent lands are encumbered by financing presently held by General Motors
Acceptance Corporation ("GMAC"). It is a condition to the obligation to close of
Buyer under this Agreement that GMAC will have released its existing financing
as it affects the Property prior to or concurrently with the Closing and that
GMAC will have subordinated concurrently with the Closing the lien and effects
of its' financing to the easements to be granted in the REA, and Seller's
inability to do so regardless of the reason therefor, shall be subject to the
provisions set forth in Section 6.11(i), below.
Buyer acknowledges being advised of the Declaration of
Restrictive Covenants, item 3 of the Title Schedule (the "Declaration"), which
was imposed for the benefit of Kendall Federation of Homeowner Associations,
Inc. ("KFHA") and ties development of the Seller's Project, including the
Property, and other lands, to an approved site plan and sets forth limitations
on the use and development of the Property, Seller's Project and other lands.
Paragraph 4 of the Declaration described in item 3 of the Title Schedule
requires the provision of a community meeting area as more particularly provided
therein. Notwithstanding the fact that the Declaration is a Permitted Exception
that cannot be objected to as a title defect by Buyer, it is a condition to
Buyer's obligation to close that Seller shall have been successful in obtaining
from KFHA (i) a modification of the afore referenced paragraph of the
Declaration to provide that same is inapplicable to the Property; (ii) approval
of a revised site plan consistent with Exhibit B or F, as applicable (provided
that Seller can, in its absolute and sole discretion, make such changes
to the Site Plan or Alternative Site Plan that are wholly outside the
boundaries of Seller's Project so long as no such changes violate any
exclusive or restrictive covenant set forth for the benefit of Buyer in the
REA, Buyer's Supplemental Declaration or Exhibit "G", described below);
and (iii) an executed modification of the Declaration (which shall, as a
condition to Closing, also be executed by Seller) and (unless a substantial
compliance determination letter is received from Dade County) an amendment
executed by Dade County and Seller, amending Items No. 2 and 3 of the Title
Schedule to reflect the foregoing, which modification(s) shall specifically
provide that same supersedes any conflicting provisions of such Items 2 and 3
of the Title Schedule. Buyer agrees that any required or desired
communications with KFHA, pursuant to the Declaration or otherwise, both before
and after
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Closing, shall be coordinated through Seller. Seller's inability,
regardless of the reasons therefor, to obtain the consents and/or amendments
required by this paragraph shall be subject to the provisions set forth in
Section 6.11(i), below.
The parties agree that, although the Declaration of
Restrictions disclosed at item 4 of the Title Schedule burdens the Property,
Buyer shall have no liability for the monetary school donation contemplated by
paragraph 3 thereof and Seller shall timely pay or cause to be paid the full
amount thereof in a manner that will not delay Buyer's obtaining of its building
permit or certificate of completion for its Contemplated Improvements.
Accordingly, Seller or its designee shall be entitled to any impact fee credit
contemplated by paragraph 10 thereof. Seller shall indemnify, defend (with
counsel reasonably acceptable to Buyer) and hold Buyer harmless from any and all
liabilities, claims, demands, attorneys' fees, costs, and expenses arising from
Seller's failure to timely pay the full amount of the monetary school donation
and this obligation shall survive Closing.
If any portion of the Property is located within that portion
of vacated Xxxxxxxxx 000xx Xxxxxx that is included within Seller's Project, it
is a condition to Buyer's obligation to close that Seller shall have obtained
confirmation in writing from Florida Power and Light Company and BellSouth that
arrangements have been made for relocation of their existing facilities within
such vacated right-of-way to another location off of the Property. Such
relocation shall be accomplished as part of Seller's work under Section 3.8
below. The rights of Florida Power and Light Company and BellSouth to retain
their existing facilities in vacated Xxxxxxxxx 000xx Xxxxxx and to utilize same
until the contemplated relocation is completed shall be a Permitted Exception.
3.3 Books and Records. Within five (5) days following the
Effective Date, Seller shall deliver to Buyer true and correct copies of
pertinent records and other documents then in Seller's possession or under
Seller's control relating to the Property, Seller's Project (excluding leases
or sales agreements) and its ownership and operation which are requested by
Buyer, to the extent not previously delivered. Such documents shall include, but
shall not be limited to, commission agreements, easements, service contracts,
management contracts, utility statements, tax bills, plans and
specifications for the Property and common areas of Seller's Project, and
improvements on the Property, surveys, environmental studies and reports, soil
and water tests, engineering studies, and any other test results or reports in
Seller's possession or under Seller's control.
3.4 Survey. At least ten (10) days prior to Closing, Seller at its sole
expense shall deliver to Buyer a survey of the Property, prepared by a certified
or registered surveyor acceptable to Buyer (Xxxxxxxx & Xxxxxx, Inc. is hereby
approved) together with a certification to Buyer and the title insurance company
indicating the following information:
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(a) Boundary lines and legal description of the
Property;
(b) The area of land in the Property expressed in square
feet [or acres];
(c) The location of all physical encroachments, if any,
by and upon the Property;
(d) The locations of all easements, encumbrances, and
title exceptions which can be shown and depicted on a survey map, and the
recording information of such easements, encumbrances and exceptions; and
(e) The location of all structures and abutting streets
with respect to the Property.
Buyer shall have 5 days from receipt of the survey to object
to any matters that preclude or adversely restrict or limit Buyer's ability to
use the Property for the Contemplated Use. Any timely raised survey objection(s)
shall be dealt with in the same manner as timely raised title defects. Any
survey matters that are not timely objected to shall be deemed Permitted
Exceptions.
3.5 Hazardous Materials. The Property shall be free from any Hazardous
Materials at the Closing. This condition shall be deemed satisfied unless Buyer
delivers to Seller, at least 15 days prior to Closing, an environmental audit
that discloses the presence of Hazardous Materials affecting the Property.
3.6 Utilities. At the Closing, the Property shall have available
(subject to extension from the perimeter of the Seller's Project to the Property
as contemplated below), permissible of connection, public water supply and
sewage disposal systems having sufficient capacity to serve the Contemplated
Improvements and the use of the Property for the Contemplated Use, and public
utilities providing sufficient electrical, gas, domestic and sprinkler
water, and sanitary sewer for the Contemplated Improvements and the use
of the Property for the Contemplated Use. Seller shall pay for all costs
associated with the connection of such utilities, subject only to the
contribution by Buyer of $150,000.00 as provided in Section 3.8 below and
subject to the third paragraph of Section 3.8 below. If necessary, Seller shall
grant easements over Seller's Project and/or other adjoining lands owned by
Seller or its affiliates and abutting Seller's Project, to serve the Property.
Buyer and the Property shall have the benefit of the easements granted in the
REA.
3.7 Governmental Approvals. At the Closing, Buyer shall have obtained
all Governmental Approvals which permit the construction of the Contemplated
Improvements and the use of the Property for the Contemplated Use. Buyer shall
diligently, continuously and in good faith pursue obtaining such Governmental
Approvals, including hiring X. Xxxxxx & Associates to process and expedite
obtaining
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Governmental Approvals. Seller shall cooperate with Buyer and provide Buyer
with all information reasonably necessary for Buyer to complete the
application process for the Governmental Approvals, including without
limitation, a utility plan for the Property. Buyer shall deliver to Seller and
the Governmental Authorities within 45 days after the Effective Date, subject to
extension by reason of force majeure, working drawings for a prototypical Silver
Diner restaurant that are ready in all respects for submission for permitting;
provided, however, that Purchaser shall not be in default of this Agreement by
virtue of its failure to meet such 45- day time frame, provided that it meets
its obligations under this Section within seventy-five (75) days (without giving
effect to force majeure) and shall pay to Seller, within ten (10) days of
demand, the sum of $369.86 per diem for each day beyond said 45-day period that
Buyer has failed to deliver the working drawings as contemplated by the
foregoing. Buyer shall diligently, continuously and in good faith, subject to
extension by reason of force majeure, make and deliver such revisions to the
working drawings as may be required for permitting.
3.8 Site Improvements. Seller is responsible to complete, at Seller's
expense but subject to Buyer's obligation to contribute as hereinafter
described, the off-site and on-site development work specified below within 120
days after Closing, subject to extension by reason of force majeure. Seller
shall install all roadways depicted by the diagonal lines on Exhibit C of the
REA and complete all roadwork required, if any, to complete X.X. 000xx Xxxxxx
lying west of Seller's Project, and shall complete all necessary utility work
and site work within the Seller's Project and/or off-site therefrom, as
necessary to allow the Property to be usable by Buyer for the Contemplated Use
upon completion of Buyer's construction of its Contemplated Improvements, which
site work shall include, but not be limited to, land clearing, water, sewer,
paving, drainage, striping, site lighting and landscaping, and the burial of
all FP&L lines or Southern Xxxx lines as necessary to satisfy all
requirements (as imposed by governmental entities or the applicable utility
company) applicable to the site improvement work for Seller's Project.
Seller shall also be responsible to deliver, at the Closing and as a condition
thereto, a rough graded building pad to within 1/10 of a foot of final grade
with ninety percent (90%) compaction sufficient to support Buyer's
prototype building, and Seller shall further be responsible to bring all stubbed
utilities to the Property within five (5) feet inside the building pad at
points to be determined by Seller within sixty (60) days after Closing, each
subject to extension by reasons of force majeure. Seller shall further complete
the grading of the entire Seller's Project within one hundred and twenty (120)
days after the Closing (being at the same time as all other on and off-site
development work is required to be completed)subject to extension by reason of
force majeure. As a condition to Buyer's obligation to close, Seller shall
furnish at or prior to Closing a construction contract for the afore stated site
development work that requires completion within the time frame set forth herein
and a payment and performance bond securing such obligation, as well as provide
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reasonable evidence to Buyer of the availability of funds (through such
combinations of Seller's equity, occupant contributions and/or financing, as
applicable) required to perform the above-described on-site and off-site
development work.
Seller agrees to use good faith efforts to perform or caused
to be performed the above referenced site work in a manner that will not prevent
or unduly interfere with Buyer's construction of its Contemplated Improvements
in a continuous and uninterrupted manner following the Closing. If Buyer has (i)
completed construction of its Contemplated Improvements in a manner that would
permit it to obtain its certificate of completion therefor, but, is unable to
obtain same, or (ii) is unable to proceed with the next stages of the
construction of its building, in either event solely as a direct result of
Seller's failure to perform any of its obligations hereunder, including its
obligation to complete the site work or portions thereof as aforestated, then,
in such event, Buyer may, following five (5) days' advance written notice to
Seller specifying the nature of Seller's failure which is preventing Buyer from
obtaining its certificate of completion or proceeding with the next stage of its
construction, and provided Seller fails to cure such condition within such five
(5) day period, subject to extension by reason of force majeure, perform such
site work or comply with such obligation of Seller and the Escrow Holder shall
pay the amount of the reasonable costs thereof to Buyer from the escrow
established by Buyer pursuant to this Section. Additionally, Seller shall be
obligated to pay Buyer, and Buyer shall likewise be paid said sums from the
escrow funds held for disbursement pursuant to Section 3.8(b) below by the
Escrow Holder, a penalty of $1,000 per day for each day that Buyer is delayed
in (i) obtaining its certificate of completion for its Contemplated
Improvements or (ii) proceeding with the next stages of the construction of
its building, in each case solely as a direct result of the failure of
Seller to perform its obligations hereunder or complete its site work, or
portions thereof, as aforestated.
Buyer shall be required to pay all impact fees (including,
without limitation, traffic impact fees, if any) and water and sewer connection
charges attributable to its development or use of the Property. In addition to
the purchase price, and the costs otherwise payable by Buyer pursuant to this
Agreement, Buyer shall contribute the sum of $150,000.00 toward the construction
of the site work, infrastructure and parking improvements to be completed by
Seller as described above, to be deposited in clear funds with Seller's attorney
at the Closing, with interest added to principal and disbursement to be made as
follows:
(a) the sum of $100,000 shall be disbursed by the Escrow
Holder to pay for site work improvements proportionately and to the extent that
said improvements are completed and in place as certified in writing by Seller's
architect to Escrow Holder and Buyer (e.g. if the total project cost is $500,000
and Seller's architect certifies that the site work improvements are completed
to a sufficient extent so as to entitle the contractor to $100,000
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(20% complete) and no monies had been previously disbursed from the escrow,
$20,000 may then be disbursed by Escrow Holder); provided that no mechanic's
liens are then filed against the Property or the easement area of Seller's
Project related to Seller's work, and if any such liens are then filed the
payment due hereunder shall, if sufficient for such purpose, be used to pay
or bond such liens as determined by Seller, and if insufficient, shall be held
and disbursed by Escrow Holder as appropriate to protect the Property from the
effect of such liens; and
(b) the sum of $50,000 plus interest accrued on the escrow
funds shall be disbursed by the Escrow Holder within five (5) days of the later
of the date that: (i) Seller completes all of its on-site and off-site
development work, as certified in writing by Seller's architect, receives the
final Governmental Approvals in connection therewith, and copies of such
certification and approvals are provided Escrow Holder and Buyer; or (ii) any of
the buildings constructed on Parcels E, F, G or H in the Seller's Project
receives its final certificate of completion such that there are then no
governmental impediments to the occupant's ability to open its premises for
business to the general public and a copy thereof is provided to Escrow Holder
and Buyer; provided that no mechanic's liens are then filed against the Property
or the easement area of Seller's Project related to Seller's work, and if any
such liens are then filed the payment due hereunder shall, if sufficient for
such purpose, be used to pay or bond such liens as determined by Seller, and if
insufficient, shall be held and disbursed by Escrow Holder as appropriate to
protect the Property from the effect of such liens. Notwithstanding the
provisions of Sections (a) and (b) hereof requiring copies of the architect's
certification to be given to Buyer, Buyer agrees that Seller will not be in
default if, notwithstanding Seller's request of the architect to do so, the
architect fails to send copies of such notices to Buyer.
Seller shall from time to time until its work under this
Section 3.8 is completed designate reasonable means for construction access and
reasonable construction staging areas for Buyer's use in connection with initial
construction of the Contemplated Improvements, which access shall be
continuously afforded Buyer from and after the Closing. Buyer shall use only
such designated areas for such purposes and each party shall take reasonable
steps to minimize interference with, disruption of and delay in the other
party's work.
The provisions of Section 3.8 shall survive Closing.
3.9 The Site Plan. Seller shall have obtained all Governmental
Approvals required to allow the Property to be developed in a manner consistent
with the Site Plan, with Buyer's Contemplated Improvements and the improvements
to be constructed on Parcels E, G and H to be located as reflected thereon.
Additionally, and notwithstanding any changes to the configuration of the
parking area that may be permitted by the REA, there shall
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be a minimum of 360 parking spaces (subject to the effects of any future
condemnation) within the Xxxxxxx Drive Portion of the Project (excluding
the spaces located between parcels "H" and "I"), and excluding any additional
parking spaces authorized to be built in the grass set-back area described in
paragraph 2.3(b)(ii) above. Further, Seller shall, on or before
Closing, record a declaration of restrictions substantially in form of
Exhibit "G". Seller agrees that should any contract to sell or lease any of
parcels affected by the foregoing be executed prior to the Closing, then,
Seller shall, as a condition to entry thereof and prior thereto, record or
reserve the right to subsequently record and render fully enforceable the
declaration imposing such restrictions on the applicable property.
3.10 Sale or Lease of Parcels "E," "G" and "H." The Seller shall have
entered into binding contracts to sell or lease two (2) of the three (3) parcels
shown on the Site Plan (or Alternative Site Plan, as applicable), as Parcels E,
G and H, and, if a sale, either the requisite number of transactions shall have
closed and the parcels shall have been conveyed to the purchasers thereof, or
such transactions shall be required to close pursuant to the terms of the
contracts applicable thereto within thirty (30) days following the date of
Closing hereunder, and Seller believes, in good faith, that all conditions
precedent thereto, if any, will be satisfied within such time frame as will
allow the closings thereof to occur within said thirty (30) day period, and
if leases, either the leases shall have become fully effective and enforceable
and rent (or a free rent period if applicable) shall have commenced, or
any pre-construction conditions shall have been satisfied such that the
landlord or tenant thereunder may, subject only to obtaining permits, commence
construction of the leased premises.
ARTICLE 4
SELLER'S COVENANTS AND REPRESENTATIONS
4.1 Preservation of the Property. At all times prior to the
Closing, Seller, at its sole expense, shall:
(a) Maintain the Property in the same condition existing on
the Effective Date, normal wear and tear and the site work contemplated by this
Agreement excepted;
(b) Not enter into any, sales or other contract, lease or
rental agreement affecting the Property without Buyer's prior written approval;
(c) Not further encumber the Property or assist or participate
in the placement of any encumbrance, lien or other claim which may affect title
to the Property or easement areas of Seller's Project and which cannot be
released (or appropriately subordinated to Buyer's easement rights if affecting
only the easement areas) at Closing;
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(d) Not enter into any management or service contract
affecting the Property or its operation which cannot be terminated or released
at Closing without Buyer's prior approval; and
(e) Observe and perform all obligations on Seller's part to
be performed under the terms of any agreement affecting the Property.
4.2 Cooperation with Buyer. Seller and Buyer shall cooperate with each
other, provide documents and timely and in good faith execute applications,
forms, instruments and other documents required to obtain any Governmental
Approvals or other authorizations enabling Buyer to proceed fully with its
development plans of the Contemplated Improvements and Contemplated Use of the
Property and to transfer the benefit of all such permits, licenses and
certificates issued to Seller to Buyer. Seller shall allow Buyer and its
authorized representatives and agents access to the Property to make tests,
surveys, or other studies of the Property, provided that Buyer pays for all such
tests and studies, keeps the Property free and clear of any liens, repairs all
damage to the Property, and indemnifies and holds Seller harmless from and
against all liability, claims, demands, damages, or costs (including reasonable
attorneys' fees at all tribunal levels) specifically related to performing
such tests, surveys, or studies. This paragraph shall survive Closing.
4.3 Seller's Representations. As of the Effective Date and as
of the Closing, Seller states, warrants and represents as follows:
(a) Valid Formation. Each of the entities comprising, Seller
is a corporation duly organized and validly existing and qualified to do
business under the laws of the State of Florida. Seller has the full power,
capacity, authority and legal right to execute and deliver this Agreement and to
perform its obligations hereunder (including, without limitation, the conveyance
of the Property to Buyer). This provision shall survive Closing.
(b) Due Execution. This Agreement and all other docu ments
executed and delivered by Seller shall constitute the legal, valid and binding
obligations of the Seller in accordance with the terms of each instrument. This
Agreement and all other instruments delivered to Buyer: (i) have been duly
authorized by all necessary action on the part of Seller's partners or officers
and directors, (ii) have received all required governmental approvals, (iii) do
not violate any law, (iv) do not conflict with or constitute a default under any
indenture, agreement or other instrument to which Seller is a party or by which
Seller, any partners or officers or directors of Seller, or the Property may be
bound, and (v) are not threatened with invalidity or enforceability by any
action, pro ceeding or investigation pending or threatened by or against Seller,
any partner or officer or director of Seller, or the Property. This provision
shall survive Closing.
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(c) Title. Seller has good and marketable fee title to the
Property, free and clear of all liens, claims, encumbrances, easements or rights
of way, covenants, conditions, restrictions and limitations, other than the
Permitted Exceptions.
(d) Claims. Seller has no knowledge of any pending or
threatened (in writing) condemnation or special assessments against the Property
(other than a street lighting special assessment district, which the Property
will be included in and be bound by, and the papers creating said district shall
be a Permitted Exception and Buyer shall, if requested, join in same), any
lawsuits which will affect the Property, nor any other claim, action, suit or
proceeding at law or in equity, by or before any administrative or governmental
authority affecting Seller or the Property.
(e) No Violation of Law. To Seller's knowledge, the
Property does not violate any Law and Seller has not received any notice of any
claimed violation of any Law from any administrative or governmental authority
or board of fire insurance underwriters. Seller is not aware of any legal
restriction which would interfere with Buyer's proposed construction of the
Contemplated Improvements or use of the Property for the Contemplated Use.
(f) Mechanics' Liens. No alteration, repair, improvement or
other work has been performed on the Property, for which payment has not been,
or will not be, made when due and in all events prior to delinquency in the
ordinary course. At Closing no such sum due shall prevent the title company from
deleting the exception for unrecorded liens and no liens shall be recorded
against the Property or Seller shall pay same, or transfer same to bond or other
acceptable security, prior to or at Closing. Seller shall likewise not permit
any lien to be placed on any other area of Seller's Project which would have the
effect of restricting Buyer's ability to freely use all easement areas thereof.
(g) Documents. All documents, information and other records
with respect to the Property, which Seller has or will give to Buyer in
connection with this Agreement, will be complete and correct in all material
respects and will accurately represent the condition of the Property, and its
ownership, operations and management, as of the date and for the period
identified in the document.
(h) Contracts. There are no contracts or other agree ments for
occupancy of the Property or the payment of leasing commissions, the rendering
of management or other services with respect to the Property, or the
construction of improvements on the Property, nor are there any other contracts
or agreements by which Buyer would become obligated or liable to any person or
entity, other than the Permitted Exceptions.
(i) Access. The rights of way for all roads necessary for the
full utilization of the Property have been acquired or
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dedicated to public use by the appropriate governmental authorities or
easements will be in effect therefor pursuant to the REA.
(j) Material Defects. Seller has no knowledge, either actual
or constructive, of any material defect in the Property which would prevent the
construction of the Contemplated Improvements or the use of the Property for the
Contemplated Use.
(k) Zoning. Seller warrants that at the present time and as of
the Closing the Property is and will be zoned to permit the Contemplated Use
under the laws of Dade County.
(l) Subdivision Map Act. Seller warrants that once platting as
contemplated by this Agreement is completed, the Property will comply with all
applicable subdivision requirements and no further subdivision map, parcel map,
or division of land is or will be required to validly transfer the Property to
Buyer.
(m) Insolvency. Seller has not (i) made a general assignment
for the benefit of creditors, (ii) filed any involuntary petition in bankruptcy
or suffered the filing of any involuntary petition by Seller's creditors, (iii)
suffered the appointment of a receiver to take possession of all or
substantially all of Seller's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Seller's assets, (v) admitted
in writing its inability to pay its debts as they come due, or (vi) made an
offer of settlement, extension or composition to its creditors generally.
(n) Hazardous Materials. To Seller's knowledge there are not
now and never have been any underground storage tanks or Hazardous Materials
present in, on or under the Property or adjoining property, and there are not
now, and were no prior uses of the Property or adjoining area which would create
or release any Hazardous Materials upon or from the Property.
Seller shall notify Buyer of any changes in any of the foregoing
matters that occur between the Effective Date and Closing. Seller shall
endeavor to remedy any material changes in the foregoing matters, except where
such remediation would require litigation or the expenditure of more than
$5,000.00 by Seller in the aggregate. Notwithstanding the foregoing, in the
event any such changes materially adversely affect Buyer and were not the result
of Seller's willful act or misconduct, and Seller is unable or unwilling to
remedy such matters to Buyer's reasonable satisfaction within the afore stated
limitations, Buyer may, as its sole and exclusive remedy unless such change
results from actions of GMAC, KFHA, any utility company or any applicable
governing authority, in which case Section 6.11(i) will be applicable, terminate
this Agreement by written notice to Seller and receive the return of its Deposit
forthwith. If any of the representations were materially untrue on the Effective
Date hereof, or become materially untrue as a result of Seller's willful act or
misconduct and in either event Seller fails to remedy same, then Buyer may
terminate this
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Agreement by written notice to Seller and receive the return of its Deposit
without waiving Buyer's rights to compensation pursuant to Section 6.11,
below.
ARTICLE 5
CLOSING
5.1 Title. Seller shall (i) convey to Buyer fee title to the Property
at Closing by delivery of a Special Warranty Deed, free and clear of all liens,
encumbrances and exceptions other than the Permitted Exceptions, and free of all
tenants or other occupants, and (ii) cause to be issued an American Land Title
Association Owner's Policy -- Form B (or a marked up Commitment therefor) from
Commonwealth Land Title Insurance Company with coverage in the amount of the
Purchase Price, showing title to the Property vested in Buyer in fee simple and
insuring Buyer's interest in all of the easements provided in the REA, subject
only to the Permitted Exceptions, and without any "standard exceptions" or
exceptions for the "gap" period. The policy shall be issued by Seller's
attorneys.
5.2 Timing. Provided all conditions to Closing have been satisfied or
waived by Buyer, Closing shall occur within twenty (20) days after the Buyer has
received all Governmental Approvals and permits for construction of the
Contemplated Improvements on the Property and use of same for the Contemplated
Use; provided, however, that Seller may terminate this Agreement if Closing has
not occurred by February 28, 1997 (not subject to extension by reason of force
majeure), unless the reason the Closing has not then occurred is due to the fact
that one or more of the conditions to Closing (exclusive of the condition set
forth in Section 3.7 unless the reason for Buyer's failure to satisfy such
condition can be clearly shown to be as a result of Seller's failure to perform
any of its obligations hereunder) have not been fully satisfied or waived, in
which event the outside date for Closing shall be deemed extended for up to
ninety (90) days and thereafter may be, if such unsatisfied condition as is
under Seller's control has still not been satisfied, extended by Buyer or Seller
for one additional up to ninety (90) day period. If neither party elects to
extend the Closing for the second up to ninety (90) day period, this Agreement
shall then be terminated and the Deposit refunded to Buyer without waiving
Buyer's rights to compensation, if and as applicable pursuant to Section 6.11,
below. If the Closing has not occurred by the expiration of the second up to
ninety (90) day extension period, if applicable, then either party may terminate
this Agreement and the Deposit will be refunded to Buyer. Notwithstanding the
foregoing, if after February 28, 1997 all conditions to Closing have occurred
other than Buyer's having satisfied the condition precedent set forth in Section
3.7 above (for reasons other than Seller's failure to satisfy any of its
obligations), then, if Seller elects to terminate this Agreement as permitted
herein, Buyer may negate Seller's election to terminate this Agreement if, by
written notice to Seller given within five (5) business days of receipt of
notice from Seller terminating this
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Agreement, Buyer waives such condition to Closing and the Closing of this
transaction occurs within fifteen (15) days thereafter.
5.3 Prorations and Closing Costs.
(a) Taxes. Buyer acknowledges being advised that the Property
and other land are included as one tax parcel. Accordingly, an equitable
allocation of taxes and special or other assessments between the Property and
the remainder of the lands included in the tax parcel shall be made (taking into
consideration the assessment amounts per acre, relative acreages, and similar
factors) at the Closing. Ad valorem real estate taxes levied against the
Property for the year in which this transaction is closed shall be prorated as
of the date of the Closing, utilizing the maximum allowable discount, based upon
the millage rate and tax assessment of the Property for the current year, if
known, or for the prior year if the figures for the current year are not known.
In the later event, either party may require that the taxes be reprorated
based on the actual taxes due, utilizing maximum allowable discount, when
known. Buyer shall accept title to the Property subject to non-delinquent
taxes for the current year, but subject to the afore stated proration and
Seller's obligation.
(b) Assessments. All assessments (to the extent due or payable
at or prior to Closing) and encumbrances affecting the Property shall be paid by
Seller on or before the Closing.
(c) Operating Expenses. All utility, maintenance, service and
operating expenses paid by Seller, and applicable to services to be performed or
materials to be provided to the Pro perty after the Closing, shall be prorated
between the parties to the date of the Closing.
(d) Closing Costs. City, county and state real property
conveyance taxes, document taxes, surtax and transfer fees shall be paid by the
Seller. Recording fees and the minimum promulgated risk rate title insurance
premium shall be paid by the Buyer.
5.4 Possession. At the Closing, possession of the Property
shall be delivered to Buyer, free of all tenancies.
5.5 Risk of Loss. At all times prior to the Closing, the risk of loss
of the Property shall be with Seller. If prior to the Closing any condemnation
proceeding is commenced affecting the Pro perty or access to the Property, then
Seller shall immediately notify Buyer of such event. Upon receipt of such
notice, Buyer shall elect by written notification to Seller within ten (10) days
thereafter to either: (i) terminate this Agreement, whereupon all monies
deposited by Buyer shall be returned to Buyer and the parties shall have no
further rights or obligations with respect to this Agreement; or (ii) permit the
Closing, in accordance with this Agreement (which shall be deemed to have been
elected if timely notice has not been furnished by Buyer), whereupon Seller
shall
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assign and deliver to Buyer all condemnation awards payable as a result of the
condemnation.
5.6 Documents at Closing.
(a) Seller's Requirements. At the Closing, Seller shall
deliver to Buyer the following:
(1) A special warranty deed duly executed in
recordable form with all necessary federal, state, and local
tax stamps and surtax affixed at Seller's expense conveying
the Property to Buyer;
(2) The REA fully executed by all parties with any
interest in Seller's Project and containing all restrictions
required hereby, if same has not theretofore been recorded;
(3) The fully executed Supplemental Declaration
relating to the Property;
(4) An affidavit or certificate for the purpose of
establishing that Seller is not a foreign person and has no
foreign affiliations which would require withholding under
Section 1445 of the Internal Revenue Code or any other Laws;
(5) Such documents as may be required by the title
company to (i) satisfy all of Seller's Section B-I
requirements set forth in the Title Report, (ii) delete all
standard exceptions for mechanic's liens, matters of survey
and parties in possession and (iii) insure the "gap"; and
(6) The Owner's Title Insurance Policy or "marked
up commitment" in the form as required hereby.
(b) Buyer's Requirements. At the Closing, Buyer shall
deliver Clear funds in an amount sufficient to satisfy Buyer's Closing
obligations under this Agreement.
(c) At Closing, each party shall deliver such other
items as may be provided for herein or as may reasonably be requested by the
other in furtherance hereof.
ARTICLE 6
GENERAL PROVISIONS
6.1 Brokerage Commissions. Seller shall pay the total broker's
commission payable to Prime Sites, Inc. and Kendallgate Properties, Inc. (which
latter entity is affiliated with Seller and is the agent solely of Seller)
pursuant to separate agreement(s). Buyer and Seller hereby represent and warrant
to the other that they have not taken any action which would create any other
obligation for broker's commissions or finder's fees to be payable with regard
to this transaction other than as aforesaid. Buyer and Seller each agree to
indemnify and hold the other harmless from and
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against all liability, claims, demands, damages, or costs (including
reasonable attorneys' fees at all tribunal levels) of any kind arising from or
connected with any broker's commission or finder's fee or other charge
claimed to be due any person arising from the indemnifying party's conduct
with respect to this transaction (which indemnity from Buyer is acknowledged
to specifically include any commission or claim therefor asserted by Florida
Shopping Center Group, Inc.), other than the commissions authorized in this
paragraph. This provision shall survive Closing.
6.2 Notices. Any notice required or permitted to be given with respect
to the subject matter of this Agreement shall be in writing and shall be deemed
properly delivered, given or served (i) when personally served or when such
personal service is refused (including delivery by an overnight courier), or
(ii) on the date shown for delivery or rejection on a return receipt, if the
notice is deposited in the U.S. mail, certified or registered, return receipt
requested, postage prepaid, addressed as follows:
TO SELLER: Xxxxxxxxx Development Group
0000 X. Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
TO BUYER: Silver Diner Development, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, President
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Stroock & Stroock & Xxxxx
3300 First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
The above parties may change the address to which notices
shall thereafter be delivered by giving five (5) days' prior written notice to
all other parties in the manner set forth in this paragraph.
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6.3 Memorandum of Agreement. Neither this Agreement nor any
notice hereof shall be recorded in any public records.
6.4 Attorneys' Fees. If any legal action is commenced con cerning the
Property, this Agreement, or the rights and duties of any party in relation
thereto, the prevailing party in such liti gation shall be entitled to
reasonable attorneys' fees at all tribunal levels in an amount set by the
court. Should either party become the subject of any bankruptcy or
insolvency proceeding, the other party shall be entitled to all attorneys'
fees at all tribunal levels and costs incurred to establish any right
hereunder, or to obtain adequate assurances or relief from the effects of the
bankruptcy or insolvency proceeding.
6.5 Authority and Execution. Each person executing this Agreement on
behalf of a party represents and warrants that such person is duly and validly
authorized to do so on behalf of the party it purports to bind and, if such
party is a partnership, corporation or trust, that such partnership, corporation
or trust has full right and authority to enter into this Agreement and perform
all of its obligations hereunder. As to representations, warranties, covenants
or agreements made by Seller in this Agreement, each of Bersin Development Corp.
and Documentation Corp. shall be liable only for matters pertaining to it, in
the case of representations and warranties pertaining to the selling entities or
things within their knowledge, and for an undivided 50% of the obligations or
liabilities, in the case of other representations, warranties, covenants and
agreements.
6.6 Further Assurances. Each party shall act diligently and in good
faith with respect to all matters pertaining to this Agreement and shall perform
or cause to be performed all acts and execute, acknowledge and deliver, or cause
to be executed, acknowledged and delivered, all instruments and documents as may
be reasonably required to carry out the intent and purpose of this Agreement.
This provision shall survive Closing.
6.7 Entire Agreement. This Agreement and the exhibits marked hereto
(all of which are by this reference incorporated herein) constitute the entire
agreement between the parties and supersede all other agreements, whether
written or oral, respecting the subject matter of this Agreement; no other
agreement, statement or promise made by either party hereto with respect to the
subject matter of this Agreement shall be binding or valid. This Agreement may
be executed simultaneously or in counterparts, each of which shall be deemed an
original but all of which together shall con stitute one and the same contract.
6.8 Amendments. This Agreement shall not be modified by either party by
oral representations made before or after the execution of this Agreement, and
all amendments to this Agreement must be in writing and signed by Buyer and
Seller.
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6.9 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of each party's assignees (to the extent assignable), heirs,
successors and legal representatives. None of the representations, warranties,
or covenants of Seller set forth herein shall survive the Closing and delivery
of the deed and the same shall be merged into the deed, except as and to the
extent specifically provided for herein.
6.10 Interpretation. Each party and its counsel have reviewed this
Agreement. Any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of
this Agreement. The captions of this Agreement are for convenience and reference
only, and the words contained therein shall not be deemed to explain, modify,
amplify or aid in the interpretation, construction or meaning of the provisions
of this Agreement. This Agreement shall be construed and interpreted under, and
governed and enforced according to, the laws of the State of Florida. If any
provisions of this Agreement are held to be unenforceable or invalid, it is the
specific intent of the parties that the remaining provisions shall be of full
force and effect.
6.11 Damages for Default or Seller's Inability to Close. If the Closing
fails to occur due to a default of Buyer, then Seller will sustain substantial
damages. Buyer and Seller agree that it would be impracticable or extremely
difficult to determine the actual damages sustained by Seller in the event of
such a default hereunder by Buyer, and therefore, Seller and Buyer agree that if
Buyer commits such a default, Seller shall, as its sole and exclusive remedies
and as agreed and liquidated damages, retain the Deposit and all interest
accrued thereon.
Except where a contrary remedy is specifically provided for elsewhere in
this Agreement, in the event that Seller fails to close this transaction
for any reason other than Buyer's default or failure of Buyer, through no
default on its part, to satisfy the condition to Closing set forth in Section
3.7 above, and in view of the parties acknowledgment that the actual losses
suffered by Buyer would be extremely difficult to ascertain with great
certainty, and in an effort to recognize that such losses of Buyer should be
compensable, the parties have agreed, as an inducement to Buyer to enter into
this Agreement, that Buyer shall, under such circumstances, be entitled to
terminate this Agreement and receive the return of its Deposit and, in addition
thereto, receive from Seller as compensation for its losses and expenses
hereunder, (i) the liquidated sum of $75,000 in the event Seller's failure or
inability to close is a result of the acts of third parties outside of Seller's
control, such as GMAC, KFHA, Dade County or any agency thereof, any utility
company, or the like; or (ii) the liquidated sum of $150,000 if Seller's failure
to close is a result of
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Seller's default hereunder and not as a result of the acts, or failure to
act, of any third party.
Notwithstanding and in addition to the foregoing limitations
on remedies, each of the parties shall be liable for the payment of attorneys'
fees and court costs (including expert witness fees whenever such term is used
in this Agreement) payable to the prevailing party in the event of litigation
by the parties hereunder or in connection herewith and shall also be liable
for the payment of any amounts due pursuant to any indemnification
provisions contained herein or in any document given pursuant hereto or in
furtherance hereof.
6.12 Time of Essence. Time is of the essence in the per
formance of Buyer's obligations under this Agreement.
6.13 Assignment. Buyer may assign this Agreement to any person or
entity provided that Buyer shall deliver to Seller an executed copy of any such
assignment and any assignee must assume all of the obligations of Buyer to the
extent provided hereunder and further provided that such assignment must occur
at least fifteen (15) days prior to Closing. No such assignment shall relieve
Buyer from liability hereunder.
6.14 Platting. Seller shall, as a condition to closing, plat the
Property (and, at Seller's option, adjacent lands owned or controlled by
Seller), at Seller's cost (the "Plat"), and in conjunction therewith, cause any
unities of title affecting the Property and adjacent lands to be released.
Seller agrees to use reasonable efforts (excluding litigation or the payment of
money, other than customary amounts for customary purposes associated with
platting) to accomplish the foregoing as expeditiously as possible. Buyer agrees
to fully cooperate with Seller in connection with the foregoing at no additional
cost to Buyer. Buyer acknowledges being advised that certain standard plat
restrictions will likely be required in connection with finalization of the
Plat, including restrictions on the use of well water and septic tanks, a
requirement for the installation of underground utility lines, and a requirement
for perimeter utility easements. Buyer shall not be entitled to object to any of
such matters and they shall be Permitted Exceptions, so long as they do not
unreasonably interfere with Buyer's Contemplated Improvements or Contemplated
Use. Buyer acknowledges being advised that the Plat will likely be a perimeter
plat, with a waiver of plat or declaration in lieu of unity of title being
obtained for the Property and adjacent lands, and Buyer approves of this
provided no restrictions or conditions required thereby adversely affect Buyer's
ability to construct its Contemplated Improvements or use the Property for its
Contemplated Use, or otherwise infringe upon the marketability of the Property,
and Buyer will promptly and in good faith cooperate with all
-22-
reasonable requests pertaining to the effectuation of this, at no additional
cost to Buyer.
6.15 Escrow Holder Provisions. The Escrow Holder shall not be liable
for any acts taken in good faith, shall only be liable for its willful
misconduct or gross negligence, and may in its sole discretion, rely upon the
written notices, communications, orders or instructions jointly given by any
party hereto. Seller and Buyer, jointly and severally, indemnify and hold the
Escrow Holder harmless from and against any and all matters directly or
indirectly related to or in connection with the funds held by Escrow Holder
under this Agreement including, without limitation, attorneys' and
paralegals' fees at all tribunal levels and in connection with all
proceedings, accountant fees and any other costs or expenses (hereinafter
referred to as "Escrow Expenses"). In the event that any Escrow Expenses are
paid by Escrow Holder, Escrow Holder may recover such payments, at its
option, as follows: (i) as a first priority out of the funds held by Escrow
Holder, or (ii) from Seller or Buyer. If for any reason the Closing does not
occur and either party makes a written demand upon Escrow Holder for
payment of the Deposit, Escrow Holder shall give written notice to the other
party of such demand. If Escrow Holder does not receive a written objection
from the non-demanding party to the proposed payment within 7 days after the
giving of such notice, Escrow Holder is authorized, instructed and directed
to make such payment. If Escrow Holder does receive such written
objection within such 7-day period or if for any other reason Escrow Holder in
good faith shall elect not to make such payment, Escrow Holder shall continue to
hold such amount until otherwise directed by written instructions from the
Seller and Buyer or a final judgment of a court. Escrow Holder shall have the
right at any time to deposit the escrowed proceeds and interest thereon, if any,
with the clerk of the Court of the county in which the Property is located.
Escrow Holder shall give written notice of such deposit to Seller and Buyer.
Upon such deposit, Escrow Holder shall be relieved and discharged of all further
obligations and responsibilities hereunder. The fact that Seller's attorneys are
Escrow Holder hereunder shall not preclude them from representing Seller in the
event of litigation hereunder. The provisions of this paragraph shall survive
closing and any termination of this Agreement.
6.16 Permitted Delays By Reason of Force Majeure. Whenever performance
is required of any party hereunder, such party shall use all due diligence to
perform and take all necessary measures in good faith to perform; provided,
however, that if completion of performance shall be delayed at any time by
reason of acts of God, war, civil commotion, riots, strikes, picketing, or other
labor disputes, unavailability of labor or materials or damage to work in
progress by reason of fire or other casualty, then the time for
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performance as herein specified shall be appropriately extended by the
time of the delay actually incurred.
6.17 Outside Date for Acceptance. The execution of this Agreement by
Buyer shall be deemed null and void and this Agreement will be revoked and of no
further force or effect if a counterpart hereof, fully executed by Seller and
with all exhibits appended thereto, is not delivered to Buyer on or before 5:00
p.m. on Monday, October 7, 1996.
[The balance of this page has been intentionally left blank]
-24-
IN WITNESS WHEREOF, the parties have executed this Agreement on the
respective dates set forth below.
SELLER: BUYER:
BERSIN DEVELOPMENT CORP., SILVER DINER DEVELOPMENT
a Florida corporation INC., a Virginia corporation
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxx
By:_________________________ By:_________________________
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: President
Dated: October 9, 1996 Dated: October 4, 1996
DOCUMENTATION CORP.,
a Florida corporation
/s/ Xxxx X. Xxxxxxxx
By:_________________________
XXXX X. XXXXXXXX
Name:_______________________
President
Title:______________________
October 7, 1996
Dated:______________________
-25-
ESCROW HOLDER'S RECEIPT
The undersigned, as Escrow Holder, does hereby acknowledge receipt of
Buyer's Deposit in the amount of $150,000 and agrees to hold and disburse same
as contemplated in the Agreement.
XXXXX XXXX XXXXX CONSTANT
XXXXXXXX & BILZIN
By:_____________________________
Name:___________________________
Title:__________________________
Dated:__________________________
EXHIBIT "A"
General Description of the Property
Exhibit A to Contract
[Property Plat Map appears here]
EXHIBIT "B"
Site Plan of Seller's Project
Exhibit "B" to Contract
[Property Plat Map appears here]
EXHIBIT "C"
Sketch of Xxxxxxx Drive Portion of the Project
Exhibit C to Contract
[Property Plat Map appears here]
EXHIBIT "D"
XXXXXXX VILLAGE CENTER PERMITTED EXCEPTIONS
1. Covenants, conditions and restrictions contained in Covenants Running
with the Land (hazardous substances) recorded in Official Records Book
12177, Page 2601, in Official Records Book 12518, Page 447, and in
Official Records Book 14173, Page 1715, all of the Public Records of
Dade County, Florida.
2. Covenants, conditions and restrictions contained in Amended, Corrected
and Restated Declaration of Restrictions recorded in Official Records
Book 15543, Page 215, of the Public Records of Dade County, Florida.
3. Covenants, conditions and restrictions contained in Declaration of
Restrictive Covenants recorded in Official Records Book 15582, Page
1165, of the Public Records of Dade County, Florida.
4. Covenants, conditions and restrictions contained in Declaration of
Restrictions recorded in Official Records Book 15631, Page 2618, of the
Public Records of Dade County, Florida, as amended by instrument
recorded in Official Records Book 17320, Page 4299 of the Public
Records of Dade County, Florida.
5. Covenants, conditions and restrictions set forth in Agreement (WASA)
recorded in Official Records Book 16012, Page 3580, supplemented in
Official Records Book 16454, Page 1179, and Official Records Book
16765, Page 1712, all of the Public Records of Dade County, Florida.
6. Covenants, conditions and restrictions set forth in Declarations of
Restrictions (Xxxxxx & Xxxxx and Michaels) recorded in Official Records
Book 17150, Pages 822 and 834, respectively, both of the Public Records
of Dade County, Florida.
EXHIBIT "E"
Current Form of REA
This instrument prepared by and after recording, return to:
Xxxxxx X. Xxxxx, Esq.
Xxxxx Xxxx Xxxxx Constant Xxxxxxxx & Bilzin
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
(Xxxxxxx Village Center)
DECLARATION OF RESTRICTIONS AND
RECIPROCAL EASEMENT AGREEMENT
This Declaration of Restrictions and Reciprocal Easement Agreement (the
("Agreement") is made and entered into as of this _____ day of __________, 199__
by Documentation Corp. and Bersin Development Corp., each a Florida corporation,
each as to an undivided 50% interest, whose address is 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxx 00000, hereinafter collectively
referred to as "First Party".
WHEREAS, First Party is the owner of a certain parcel of real property
legally described on Exhibit "A" attached hereto and made a part hereof (the
"Center"), which is depicted in bold on Exhibit "B" attached hereto and made a
part hereof (the "Site Plan"); and
WHEREAS, First Party, in connection with its sale or financing of
portions of the Center separate and apart from other portions of the Center, is
desirous of (i) establishing certain easements in, to, over, across and through
portions of the Center for the benefit of other portions of the Center and (ii)
imposing certain restrictions in connection with the development and use of
portions of the Center, all as more particularly provided for herein and for the
purpose of facilitating the implementation of a unified development plan for the
lands included within the Center.
NOW, THEREFORE, for valuable consideration, First Party declares and
agrees as follows:
1. First Party does hereby establish, create and grant a perpetual
non-exclusive easement in, to, over, across and through those portions of the
Center (the "Easement Area") as may from time to time be used for the purposes
designated in paragraph 2 hereof, for the use and benefit of the respective
owners and tenants of the Center and their employees, agents, customers, guests,
licensees, invitees, mortgagees, successors and assigns.
Exhibit "E" to Contract
2. The Easement Area described in paragraph 1 hereof shall include
the following property:
(a) Any property (but, in particular, the areas cross hatched
on the Site Plan attached hereto as Exhibit "C", which areas shall be available
for the purposes specified in this subparagraph 2(a) and shall not be subject to
the provisions of paragraph 7 below unless alternative means of access,
reasonably acceptable to all of the owners of Parcels E, F, G and H depicted on
the Site Plan attached hereto as Exhibit "C", are established) as may from time
to time be used as roadways, streets, driveways, entranceways or other
access ways within the Center for ingress and egress of persons and motor
vehicles on, over, across and through the Center and to and from adjacent public
streets and highways, together with the right to eliminate such curbing and
landscaping and replace same with paving as may reasonably be required to permit
unobstructed traffic flow. Notwithstanding the foregoing, however, First Party
may unilaterally shift the north/south accessway that is located in the middle
of the parking area shown on Exhibit "C" to the east or west (but only within
the Easement Area), so that it will line up with the continuation thereof to the
north and with any entrance into the Center from North Xxxxxxx Drive between
S.W. 124th Avenue and the Florida Turnpike; and
(b) Any property as may from time to time be used for or
reasonably necessary for the installation, maintenance, repair and replacement
of (i) public utilities (including water, sewer electric, gas and telephone) or
(ii) the drainage of surface water run-off to, from or within the Center;
provided that none of same shall ever be installed under any buildings and, to
the maximum extent possible, all of same shall be located within then existing
areas devoted to such purpose(s); and
(c) Any property (but, in particular, the areas noted by
diagonal lines on the Site Plan attached hereto as Exhibit "C", which areas
shall be available for the purposes specified in this subparagraph 2(c) and
shall not be subject to the provisions of paragraph 7 below unless alternative
means of parking, reasonably acceptable to all of the owners of Parcels E, F, G
and H depicted on the Site Plan attached hereto as Exhibit "C", are established)
as may from time to time be used as parking areas within the Center (including,
without limitation, any parking garage structure) for the parking of motor
vehicles. Notwithstanding the foregoing, however, First Party may unilaterally
make minor adjustments in the configuration of the parking spaces in order to
accommodate relocation of the portion of the roadway described at the end of
subparagraph 2(a) above to line up with any accessway that may be installed
along Xxxxxxx Xxxxx xxxxxxx X.X. 000xx Xxxxxx and the Florida Turnpike, in order
to add additional parking in the area south of the diagonally lined area, if
permitted by applicable law, and in order to accommodate
2
a minor reconfiguration of the Parcel G building to the west; provided, however,
that, except if reduced as a result of a future condemnation or deed in lieu
thereof, there will at no times be less than 360 parking spaces within the
diagonally lined area on the Site Plan attached hereto as Exhibit "C" and,
if permitted by applicable governing authorities, the area to the south thereof
in the aggregate (excluding, however, the parking area to the north of
Parcel H); and
(d) Any property as may from time to time be used for
landscaped areas or pedestrian walkways, and any property or facilities as may
from time to time be available for the common use of all owners within the
Center (whether or not actually used by all owners within the Center), but only
to the extent the items specified in this subparagraph (d) are so designated by
First Party.
3. No barriers will be erected within the Center which would have
the effect of limiting or restricting the easement rights granted hereinabove;
provided, however, that reasonable non-discriminatory rules and regulations may
be established by the owner(s) from time to time within the Center related to
the use of the Easement Area located on its property or by First Party related
to the use of any portion of the Easement Area, whether or not owned by First
Party (including, without limitation, First Party (but not other owners)
designating and posting reasonable portions of the Center with signs for short
term parking and/or designating and posting reasonable portions of the parking
areas within the Center with signs limiting their use for customers of the
businesses in the vicinity of such parking areas). Any improvements placed
within the Center or any portion thereof will provide for the free flow of
pedestrian and vehicular traffic between all portions of the Center in order to
effectuate the easement rights granted in this Agreement, and will fully comply
with all federal, state and local requirements for development and with all
matters of record. Anything in this paragraph 3 or elsewhere in this Agreement
to the contrary notwithstanding, all parties burdened by this Agreement
acknowledge being advised and agree that all or a portion of the parking areas
within the Center will, at the option of First Party, be comprised of controlled
parking and all of such parties approve of the foregoing, provided that a system
shall be implemented whereby the occupants of Parcels E, F, G and H (and any
other parcels designated in any supplemental declaration) will be entitled to
validate parking for their customers such that there will be no charge for
parking by their customers (but this no charge validation right shall not be
applicable to any garage or similar structured parking area located outside the
land described on Exhibit "A" attached hereto that may hereafter be added to the
effects of this Declaration). Such validation shall be subject to such
reasonable and non-discriminatory rules and regulations as may, from time to
time, be promulgated by First Party, including length of time with respect to
which validation is applicable and designation of specific areas in which
parking must
3
occur. The provisions of this paragraph shall not limit or restrict the
installation of temporary construction barricades to be utilized prior to and
during construction of the Center and adjacent lands; provided, however,
that any such barricades shall be installed and maintained in such a manner as
to minimize inconvenience to or disruption of the businesses within the Center.
4. (a) No portion of the Center shall be used for any
illegal use.
(b) In the event any portion of the Center is damaged or
destroyed by reason of casualty or condemnation, the owner thereof shall, within
a reasonable period of time after the occurrence thereof and with due diligence,
either (i) restore the damaged or destroyed portions to complete and useable
condition or (ii) raze the remaining improvements; provided, however, that all
access ways and parking within the cross hatched and diagonally lined areas
shown on the Site Plan attached hereto as Exhibit "C" shall be restored.
(c) Buildings may be constructed within the area legally
described on Exhibit "A" attached hereto only in those areas not cross-hatched
or diagonally lined on Exhibit "C" attached hereto. Each portion of the Center
on which buildings are permitted to be constructed shall contain gross square
footage of building area (including gross square footage of outdoor serving area
unless expressly provided to the contrary) and a maximum height above finish
grade that does not exceed the amount specified in a supplemental
declaration that is recorded by First Party prior to or at the time First Party
conveys the applicable portion of the Center to someone other than a successor
First Party, and shall be limited in use as specified in such supplemental
declaration. The area legally described on Exhibit "A" attached hereto (depicted
in bold on Exhibit "B" as aforestated) shall contain no more than 40,000 gross
square feet of building area (including outdoor serving area) in the aggregate.
(d) No loud speakers that can be heard outside of the
buildings located within the Center shall be operated, except to the extent
either operated by First Party or they can be heard solely within the outdoor
dining/serving area of the applicable building.
(e) (i) No building, fence, wall, structure, sign or other
improvements (including, without limitation, landscaping and both the interior
(to the extent visible from the exterior) and exterior of buildings and other
structures or improvements) of any nature shall be commenced, erected, placed,
altered or maintained within any portion of the Center, and no addition or
alteration to the interior (to the extent visible from the exterior) or exterior
of any structure or other improvements shall be made within any portion of
4
the Center, until the construction plans and specifications, including
elevations, and a plan showing the location of the structure(s) or other
improvements and any signs together with a landscaping plan have been
approved in writing by First Party. Any material change in the interior (to the
extent visible from the exterior), any change in the exterior appearance of any
building, fence, wall, structure, sign or other improvement, and any change
in the appearance of the landscaping as approved and installed initially
shall be deemed an alteration requiring approval as aforestated. The items or
matters to be submitted for approval as provided in this subparagraph (e)(i)
shall hereinafter collectively or individually, as the context may require
or permit, be referred to as the "Plans." Each building, fence, wall,
structure, sign or other improvement of any nature and all landscaping shall
be erected, placed, or altered only in accordance with the Plans as
approved. Refusal of approval of the Plans, or any portion thereof, may be
based on any ground, including purely aesthetic grounds, which, in the sole and
absolute discretion of First Party, shall be deemed sufficient.
(ii) First Party (which term, as used in this
subpara graph (e), shall include its respective officers, directors,
employees, partners, agents, contractors, consultants and attorneys, as
the context requires or permits) shall not be liable for damages to anyone
submitting any items (including, without limitation, Plans pursuant to
subparagraph (e)(i) for approval or to any owner or owners of property within
the Center or to any other party by reason of mistake in judgment, negligence
or non-feasance arising out of or in connection with the approval or
disapproval or failure to approve any such items or its enforcement or failure
to enforce against third parties any site maintenance or other requirements
hereof. Anyone submitting any items to First Party for approval, by the
submitting of such items, and any owner or other party, by acquiring an
interest in any portion of the Center, agrees not to seek any such damages
against First Party. Without limiting the generality of the foregoing, First
Party shall not be responsible for reviewing, nor shall its approval of any
Plans be deemed approval of any Plans from the standpoint of structural
safety, soundness, workmanship, materials, usefulness, conformance with
building or other codes or industry standards, or compliance with governmental
requirements.
(iii) First Party will respond to a request
for approval of Plans within twenty (20) business days from the time that
two (2) sets of such Plans are delivered to First Party with a written request
for approval. The party submitting the Plans shall promptly submit to First
Party any additional information or materials requested by First Party for the
purpose of aiding in its review of the original submission and the twenty (20)
business day approval period shall not commence until such additional
information or materials are received, so long as First Party requests such
5
information within ten (10) business days of the original submission of Plans.
If First Party disapproves, First Party shall so notify the party submitting
the Plans in writing within said twenty (20) business day period stating the
specific reason or reasons for denying approval, whereupon the party
submitting the Plans shall revise the Plans accordingly and resubmit same, at
which time such resubmission will be treated hereunder as an original
submission. A failure by First Party to respond within such twenty (20)
business day period shall constitute an automatic approval.
(f) (i) No tents or trailers of any description, whether
readily movable or not, campers, motor homes, vans without side windows other
than in the front doors, shacks, tanks (excepting aboveground tanks) or
temporary or accessory buildings or structures shall be placed or permitted to
remain on any property within the Center except those needed during construction
(the location and exterior appearance of any construction trailers, and the
location or placement of any construction vehicles and staging areas shall be
subject to the prior reasonable written approval of First Party), and after the
completion of construction of the main structures and issuance of a certificate
of occupancy, all such tents, trailers of any description, campers, motor homes,
vans, shacks, tanks, temporary and accessory buildings or structures shall be
removed forthwith. Notwithstanding the foregoing, (A) permanent accessory
buildings or structures approve pursuant to subparagraph (e)(i) above may remain
after completion of the main structures and issuance of a certificate of
occupancy and (B) customer campers and recreation type vehicles shall not be
prohibited by the foregoing while the customer is patronizing business(es) at
the Center. The provisions of this subparagraph shall not be applicable to First
Party.
(ii) At all times during the course of
construction of improvements and landscaping upon any portion of the
Center, the owner(s) thereof will remove construction debris of all kinds
from such portion of the Center and all adjoining streets and premises and,
when such construction is substantially completed, the owner(s) thereof shall
promptly and properly clear and remove all debris, equipment and excess,
surplus or remainder of construction materials, of whatever nature, from
such portion of the Center and all adjoining streets and premises.
(iii) No weeds, underbrush or other unsightly
growths shall be permitted to grow or remain upon any portion of the Center, and
no waste paper, trash, refuse pile or unsightly objects shall be allowed to
be placed or suffered to remain anywhere thereon.
(g) No portion of the Center shall be used for any of the
following purposes, which are hereby declared to be prohibited uses: (i) head
shop, massage parlor (excluding therapeutic massage by
6
licensed massage therapists), adult book store or any other store
involved in the sale, distribution, lease or exhibition of pornographic
materials, or any other business restricted by law to "adults" only,
(ii) except to the extent specifically permitted by First Party at its sole
discretion by a supplemental declaration, cocktail lounge or establishment
which sells alcoholic beverages for on the premises consumption, except as a
part of the operation of a sit down restaurant, (iii) a fast food restaurant,
except to the extent specifically permitted by First Party at its sole
discretion by a supplemental declaration, (iv) a drive-in restaurant or any
facility with a drive thru feature (including a fast food restaurant with such a
feature), except to the extent specifically permitted (but only within lands
that may hereafter be added to the effects of this Agreement) by First
Party at its sole discretion by a supplemental declaration, (v) for
industrial or warehouse purposes (except for the incidental storage of
merchandise or other items in conjunction with the conduct of business
within the Center), (vi) funeral parlor, (vii) automobile, truck, trailer,
recreation vehicle or motorcycle show room or repair facility, (viii) school or
training facility (except for training of the workers employed by the
establishments operating within the Center as an incident to their employment),
(ix) a "second hand" or "surplus store" (provided, however, that this
prohibition shall not apply to a high quality consignment shop that is operated
in a first-class manner), (x) a mobile home park, trailer park, junk yard or
stock yard (except as and to the extent permitted elsewhere in this Agreement,
if at all), (xi) any fire sale, bankruptcy sale (unless pursuant to a court
order) or auction house operation, (xii) any use which creates vibrations or
offensive odors which are noticeable outside of the premises initiating or
generating such vibrations or odors, (xiii) any use (excluding one expressly
permitted by a Supplemental Declaration and provided, however, that this shall
not permit First Party to approve any competing use that is in violation of any
then effective exclusive use or restrictive covenant granted by this Agreement,
any supplemental declarations or any other recorded instruments) that competes
with any (A) exclusive use or restricted use provision contained in any
supplemental declaration (regardless of whether or not the beneficiary of such
exclusive or restricted use provision owns or leases property within the Center,
and any such supplemental declaration may be imposed unilaterally by First Party
on all or portions of the Center without the joinder of any other owner and all,
or the applicable, portions of the Center shall be bound thereby) or (B) then
existing use within any portion of the Center or any lands in the vicinity of
the Center designated by First Party in a supplemental declaration (whether or
not exclusive use protection for such use is contained in a supplemental
declaration) unless, in the case of (B) only, First Party approves of such
competing use in its absolute and sole discretion (and, in such event, subject
to such terms as First Party may impose) or (xiv) any use which, under
applicable law, requires a greater parking ratio for the applicable
7
portion of the Center than the initial use for such portion of the Center
required.
(h) First Party may from time to time establish, and
thereafter modify, reasonable, customary, and nondiscriminatory rules and
regulations for the operation and use of the Easement Area (whether or not owned
by First Party), or portions thereof, and all parties burdened by this Agreement
shall comply with same.
(i) No owner or occupant of any portion of the real property
legally described on Exhibit "A" attached hereto (depicted in bold on Exhibit
"B" as aforestated), other than First Party, shall be entitled to install any
free-standing signage in the Center. First Party shall have the exclusive right
to install free-standing signage, including pylon signs and monument signs,
within said Exhibit "A" property, which signage may be utilized for
identification of the Center and/or adjacent lands generally or for
identification of the occupants designated from time to time by First Party.
This provision shall not be deemed to limit the installation of signage on the
buildings within the Center, to the maximum extent permitted by applicable law.
5. In connection with the development from time to time of portions of
the Center, the following guidelines shall be observed: (i) development shall be
performed in such a manner that surface water runoff within the Center will not
materially adversely affect any portion of the Center or result in the
accumulation of standing water on any portion of the Center, (ii) all work
performed shall be accomplished so as to not interrupt any existing services to
the improvements within the Center, and in a manner so as to minimize
inconvenience and interruption of access to the owners and occupants of the
Center, (iii) in connection with any work performed by an owner, its successors
or assigns on any portion of the Easement Area, after completion of such work
the Easement Area shall be restored to the condition in which it was prior to
the performance of such work, at the cost of the owner causing such work to be
performed; (iv) all public utility and drainage facilities shall, to the maximum
extent permissible, be located underground, (v) all garbage and trash containers
(other than those installed or approved by First Party for placement in the
Easement Area and intended to be used by pedestrians/customers) shall be located
either within a service area designated by First Party or inside an enclosed
building or be enclosed on all sides by a wall, fence or other screening, the
height of which exceeds the height of the container(s) and the color of which
blends with the color of the building located on the applicable portion of the
Center, and all garbage and trash generated from the Center shall be disposed of
in such container(s) or otherwise as required by law, and (vi) any service area
that will be visible to the public other than solely from a service drive shall
be enclosed on all
8
sides by a wall, fence or other screening that totally blocks the service area
from public view, the color of which blends with the color of the building
located on the applicable portion of the Center.
6. To the extent portions of the Center owned by different parties have
installed thereon improvements that abut each other along their common boundary
or boundaries, they shall be totally self-contained and shall not be constructed
so that there is a common party wall. Notwithstanding the foregoing, the
underground support/foundation may be jointly utilized provided same is
accomplished in full compliance with applicable law and shall not adversely
affect the structural integrity of the building first erected on the applicable
common boundary. Any future construction on portions of the Center in the
vicinity of a common boundary or boundaries thereof shall be performed in
such a manner that will permit joint utilization of the underground
support/foundation without the need for performing additional support or similar
work. First Party hereby grants non-exclusive perpetual easements for the
installation, maintenance and repair of underground foundations and other
support, for minor/unintentional encroachments and for joint use of any
underground support/foundations, which easements are for the benefit of those
portions of the buildings that are from time to time erected on the respective
portions of the Center along a common boundary or boundaries thereof, to the
extent reasonably required.
7. Subject to the provisions contained herein and in any supplemental
declaration or other matters of record, each owner from time to time of the
Center, or any portion thereof, reserves the right at any time and from time to
time, without the need for obtaining consent or approval from the owner(s) of
any other portions of the Center, to change, rearrange, alter, modify, build
upon or otherwise reduce the non-exclusive Easement Area created hereby. In the
event any of same are accomplished with respect to the non-exclusive Easement
Area located on any owner's property, same shall automatically release the area
which is so changed, rearranged, altered, modified, built upon or otherwise
reduced from this Agreement. In addition to the foregoing, each owner from time
to time of the Center, or any portion thereof, specifically reserves the right,
without the need for obtaining consent or approval from the owner(s) of any
other portions of the Center, to replace, alter or add to any existing buildings
or structures located on their respective properties or to build any new
buildings or structures on their respective properties as they may from time to
time desire, regardless of whether or not the additions or replacements are
constructed wholly or partly upon the nonexclusive Easement Area, subject to
applicable governmental requirements, matters of record and the provisions
contained herein (including architectural review and approval as herein
provided). If the foregoing requires relocation of any then existing utility or
drainage facilities, the owner that is so changing, rearranging,
9
altering, modifying, building upon or otherwise reducing the easement
area shall be responsible, at its cost, for relocating such utility or
drainage facilities, but same shall be accomplished without interruption of
service and in a manner so as to minimize inconvenience to the owners and
occupants of the remaining portions of the Center. Nothing set forth on the
Site Plan regarding potential uses, potential users, height limitations,
square foot limitations, general configuration or otherwise shall be deemed a
limitation on any portion of the Center; all of same appear on the Site Plan
solely to indicate the present anticipated and non-binding development scheme
for the Center and adjacent lands owned or controlled, or potentially to be
owned or controlled, by First Party. No lands depicted on the Site Plan shall
be burdened by this Agreement unless and until same are added to the effects
of this Agreement in accordance with the terms of this Agreement.
8. (a) Each owner from time to time of each portion of the
Center (including First Party) agrees to fully maintain, repair and, when
necessary, replace, at its cost and expense, all portions of the Center located
on its property so that same are at all times in good working order,
condition and repair. The foregoing obligation to maintain, repair and,
when necessary, replace, shall include, without limitation: (i) keeping
all portions of the Center in a clean, unlittered, orderly and sanitary
condition; (ii) removing, to the extent practicable, surface waters;
(iii) keeping all marking and directional signs, if any, within the Center
clear, distinct and legible; (iv) maintaining, mowing, weeding, trimming
and watering all landscaped areas; (v) maintaining and operating exterior
lighting at reasonable levels during hours of darkness; and (vi) maintaining
and replacing the exterior finish materials of improvements from time to time
located within the Center (such as painting building surfaces and sealing
driveways and parking areas). Notwithstanding the foregoing, prior to initial
construction, portions of the Center may remain in their present, unimproved
condition; provided, however, that the owner(s) thereof shall cause same
to at all times be kept free of vegetation and overgrowth exceeding one
foot in height. Each owner from time to time of the Center, or any portion
thereof, further agrees to maintain comprehensive public liability insurance
with respect to the portion of the Center located on its property throughout
the term of this Agreement in an amount no less than $1,000,000.00,
combined single limit, which names the other(s) (and its mortgagee(s),
if so requested by such other(s)) as additional insured(s), and to furnish to
the other(s) written proof thereof promptly upon request.
(b) If the owner of any portion of the Center shall fail to
maintain, repair and, when necessary, replace the portions thereof that are
located on its property as required hereunder or shall fail to provide proof of
insurance as required hereunder, the owner(s) of
10
any other portion of the Center may send written notice to such defaulting
party and, if such obligations are not performed by the defaulting party
within 30 days from receipt of such notice, then the party or parties giving
notice shall have the right (without limiting any other rights that may be
available) to perform such obligations and xxxx the defaulting party for
the actual out-of-pocket costs of such performance. If the defaulting
party shall not pay such xxxx within 30 days of receipt, then interest shall
accrue on the unpaid amount from the time it was expended until paid at the
lower of 18% per annum or the highest lawful rate permitted by law (the
"Interest Rate"). In the event First Party is the party who performs the
obligations of the defaulting party, the amount of the xxxx, together with
interest and costs of collection, shall be a lien on all property owned by the
defaulting party within the Center, which lien shall be effective upon, and
have priority as of the date of, the recording in the Public Records of Dade
County, Florida, of a claim of lien, which claim of lien shall specify the
legal description of the property liened and the amount claimed, and may be
foreclosed in the same manner as a mortgage.
(c) Each owner from time to time of the Center, or any portion
thereof, hereby indemnifies and saves harmless all other owners of portions of
the Center from any and all liability, damage, expense, causes of action, suits,
claims or judgments arising from the portion of the Center that is owned by it,
except to the extent caused by the act or negligence of another owner and in
such event only as to such other owner whose act or negligence is excepted.
(d) (i) The present plans for development of the Center
contemplate that First Party will own substantially all of the Easement Area
within the Center and, in accordance with subparagraph 8(a) above, First Party
will be obligated to maintain, repair, and, when necessary, replace same. All
costs incurred by First Party in maintaining, repairing, and replacing the
Easement Area, as well as for insuring same (liability coverage of no less than
$1,000,000 combined single limit, casualty coverage for full replacement cost,
and any other coverage customary for similar facilities) and paying taxes and
assessments (real, personal or otherwise) in connection with same, shall be
deemed a "Common Expense" of the Center. Common Expense shall include, without
limitation, all payroll and benefit costs for employees and independent
contractors to the extent that such benefit costs are reasonable and customary,
costs of supplying and cleaning uniforms and work clothes, all charges for
electricity, water, sewer, other utilities and rubbish removal, the cost of all
supplies, tools, materials and equipment acquired for maintaining, repairing and
replacing the Easement Area, the cost of any security or roving patrol provided
for the Easement Area, the cost for
11
maintaining, repairing, replacing and xxxxxxx any controlled access for the
parking area of the Center, the costs of resealing, restriping and
resurfacing (when necessary) parking areas and roadways, professional
expenses (such as attorneys' and accountants' fees) incurred in connection
with the Easement Area and a management fee or administrative fee not
to exceed 15% of the other Common Expenses, excluding taxes and insurance.
Any parking fees generated for use of the parking areas within the Easement
Area (excluding those generated from any garage or similar structured parking
located on land not included in Exhibit "A" attached hereto that may hereafter
be added to the effects of this Declaration, so long as the costs for such
garage or similar structured parking is not included in the calculation of
Common Expenses) shall be applied to reduce Common Expenses.
(ii) Each owner of a portion of the Center
shall, from and after the date of its acquisition thereof, be responsible for
payment of its "Pro Rata Share" of Common Expenses based on a fraction, the
numerator of which is the gross square footage of building area (including
outdoor dining/serving area unless expressly provided to the contrary in a
supplemental declaration, but excluding building area which constitutes
Easement Area) within the applicable portion of the Center that is owned by
such owner and the denominator of which is the total gross square footage of
building area (including outdoor dining/serving area unless expressly
provided to the contrary in a supplemental declaration, but excluding building
area which constitutes Easement Area) within the entire Center. Until the
initial building(s) contemplated to be constructed on any portion of the
Center are constructed, the maximum permitted square footage set forth in
recorded supplemental declarations for portions of the Center (and where no
such supplemental declarations are recorded, First Party's then contemplated
maximum permitted square footage) shall be used to calculate Pro Rata Share of
Common Expenses. Following construction, the owner of each applicable
portion of the Center shall provide First Party with a certification of square
footage from its architect or engineer and, subject to verification thereof by
First Party, the square footage so certified shall thereafter be utilized
until the square footage increases, if ever, due to additional
construction, at which time a new certificate shall be furnished as aforestated
and the above procedure shall govern in respect of same. In the event a
certificate as aforestated is not provided, the maximum permitted square
footage set forth in a recorded supplemental declaration pertaining to the
applicable portion of the Center shall be utilized until same is so
provided. After casualty or condemnation and prior to restoration, the
square footage that existed immediately prior to the casualty or condemnation
shall be used to calculate Pro Rata Share of Common Expenses. First Party shall,
from time to time but at least once a year, establish a budget for Common
Expenses and each owner of property within the Center shall pay to First
Party, on the first day of each month in advance, its Pro Rata Share of Common
12
Expenses based on the aforestated budget. At least once per year, First Party
shall reconcile the budget with actual Common Expenses incurred and
furnish such reconciliation to all owners of property within the Center
within 90 days after the end of the applicable year. If excess monies were
collected by First Party, a pro rata refund shall accompany the
reconciliation. If the reconciliation reflects additional sums owed to First
Party, each owner of property within the Center shall pay its Pro Rata Share of
the excess within 30 days of receipt of the reconciliation.
(iii) Recognizing that the present plans for
development of the Center may change, all parties burdened by this Agreement
agree that, to the extent Easement Area is located on any portion of the
Center not owned by First Party, the party owning same shall be entitled to an
equitable adjustment of its Pro Rata Share of Common Expense to take into
account the costs of maintaining, repairing and, when necessary, replacing
the Easement Area on its property, all in furtherance of the concept that no
owner of property within the Center should be paying more than its Pro Rata
Share of maintaining, repairing and, when necessary, replacing all of the
Easement Area within the Center, regardless of the ownership thereof.
Absent manifest error, First Party's determination of the equitable
adjustment to be made pursuant to this subparagraph shall be final and
binding. Anything in this Agreement to the contrary notwithstanding,
First Party may unilaterally, by supplemental declaration, provide from
time to time that the obligations set forth in subparagraph 8(a) above,
as they relate to portions of the Easement Area not owned by First Party,
shall be undertaken by First Party and the determination so made by First Party
shall be binding upon the owner from time to time of the applicable Easement
Area; and during such time as First Party has undertaken such obligation, the
owner of the applicable Easement Area shall not have such obligation and shall
not be entitled to any adjustment of its Pro Rata Share of Common Expenses as
aforestated (a supplemental declaration as contemplated by the foregoing
sentence may be filed by First Party from time to time as often as First Party
deems appropriate, regardless of whether or not it then owns the Easement
Area in question, and such supplemental declaration shall not require the
joinder of the owner of the applicable portion of the Easement Area to which it
applies).
(iv) Any payment required under this
subparagraph 8(d) that is not paid when due shall bear interest at the Interest
Rate from the date invoiced until paid. First Party shall have a lien on all
property within the Center owned by a party who defaults in the payment of the
amounts provided to be paid in this subparagraph 8(d), together with costs of
collection, which lien shall be evidenced by a claim of lien that is recorded in
the public records of Dade County, Florida, shall be effective and take
priority as of the date of recording of this Agreement, shall specify the legal
description of
13
the property liened and the amount claimed, and may be foreclosed in the same
manner as a mortgage may be foreclosed. Before instituting foreclosure
proceedings, however, First Party shall provide the applicable owner, and
any mortgagee of such owner who has furnished First Party notice pursuant to
paragraph 16 of this Agreement, notice (in the manner provided in paragraph
16 of this Agreement) of the amount due and of First Party's right to institute
foreclosure proceedings if payment is not received within 15 days after such
notice.
(v) First Party agrees that all Common
Expenses for which reimbursement is sought as provided in subparagraph 8(d) of
this Agreement shall be reasonable in amount and competitive with costs
incurred for similar items at similar properties in the vicinity of the Center.
Each owner, within one year after the date it receives a reconciliation
as contemplated by subparagraph 8(d)(ii) of this Agreement, shall have the
right to audit First Party's books and records related to Common Expenses for
the applicable year (and First Party agrees to maintain such records until
expiration of such time period), upon 15 days' prior written notice, during
business hours, at the business offices of First Party (or at such other
location as First Party may reasonably designate within Dade County, Florida).
Such audit shall be conducted by an accountant or other operating expense
auditing professional selected by the applicable owner and reasonably
acceptable to First Party and only one audit shall be conducted by any owner
for any given year. In the event such audit discloses items included in
Common Expenses that are purportedly improperly included in Common Expenses
or are purportedly unreasonable in amount, First Party and the applicable
owner(s) conducting the audit shall attempt to resolve the disagreement among
themselves, in the absence of which the dispute shall be resolved through
judicial proceedings. No audit or disagreement regarding the results of such
audit shall relieve any owner of its obligation to timely pay its Pro Rata
Share of Common Expenses based on the figures established by First Party;
provided, however, that upon final resolution of any disagreement (either by
mutual consent or final judicial determination), First Party shall refund any
excess sums that are determined to have been collected by it, together with
interest thereon at the Interest Rate from the date received until the date
refunded.
(e) Anything in this Agreement to the contrary
notwithstanding, all parties burdened by this Agreement agree that, in
connection with the development of, construction upon and use of portions of the
Center, they shall take every reasonable precaution to avoid damaging any
portion of the Easement Area and, in the event any portion of the Easement Area
is damaged as a result of their acts, or the acts of those claiming by, through
or under them (collectively or individually, as the context requires or permits,
a "Damaging Party"),
14
the owner of the applicable Easement Area may (but shall not be obligated to,
at the cost of the Damaging Party, and if such owner does not, the Damaging
Party shall, at its sole cost, promptly repair, replace and restore all
portions of such Easement Area to their condition prior to such damage and
shall indemnify and hold the owner of such Easement Area, its successors
and assigns, harmless from and against all costs and expenses incurred by such
owner, its successors or assigns, in repairing, replacing or restoring any
such portion of the Easement Area that is damaged as aforestated.
9. No one other than First Party may use the name or "logo" of "Xxxxxxx
Village Center" or any other name or "logo" used by First Party at or in
connection with the Center in any way whatsoever including, but not limited to,
any signage, advertising, sales material or commercials without the prior
written consent of First Party (which may be given or withheld in First Party's
absolute and sole discretion and with or without cause and, if given, may be
subject to such terms and conditions as First Party deems appropriate). However,
occupants of portions of the Center may identify the Center in their
advertising, promotion, sales material or commercials by reference to the
Center's location "at Xxxxxxx Village Center" (subject, however, to such
reasonable terms and conditions as First Party may impose in order to protect
its registered trade names and service marks as hereinbelow provided); provided,
however, that reference to the Center's location "at Xxxxxxx Village Center" may
not be used in the name of any owner or occupant or any of its component
entities. If so requested by First Party, and as a condition to utilizing any
name whose use is restricted as aforestated, a party utilizing any such name
shall sign a license agreement(s) (at no charge by either) which is intended to
protect First Party's registered trade names and service marks from unauthorized
use by others. Such license agreement(s) shall be non-exclusive,
non-transferable and in form and substance reasonably acceptable to First Party.
10. (a) No portion of the Center or any interest therein shall be sold,
transferred or leased (which term shall include sublease and any other occupancy
arrangement whenever used) unless and until the owner (which term shall include
lessor whenever used, to the extent applicable) of the applicable portion
thereof shall have first offered to sell, transfer or lease the applicable
portion thereof or interest therein to First Party and First Party has waived,
in writing, its right to purchase or lease the applicable portion thereof or
interest therein. In the event the owner is a corporation, partnership or
trustee, the sale, assignment or other transfer of any controlling interest of
the stock of, partnership interest of or beneficial interest in the owner
(whether accomplished all at once or over time), as the case may be, shall
constitute a transfer to which the
15
provisions of this paragraph shall apply, except in the case of a publicly
traded entity or wholly owned subsidiary thereof.
(b) Any owner(s) intending to sell, transfer or lease as
aforestated shall give to First Party notice of such intention, together with a
fully executed copy of the proposed contract of sale or lease (the "Proposed
Contract"). Within fifteen (15) days after receipt of such notice and Proposed
Contract, First Party shall either exercise, or waive exercise of, its right of
first refusal. If First Party exercises its right of first refusal, it shall,
within fifteen (15) days after receipt of such notice and Proposed Contract,
deliver to the applicable owner an agreement to purchase or lease the applicable
portion of the Center or interest therein upon the terms set forth in the
Proposed Contract (and the applicable owner shall promptly execute and return to
First Party a counterpart of such agreement to purchase or lease); provided,
however, that if the Proposed Contract contemplates a property exchange, First
Party may tender the cash value of the property contemplated to be
exchanged or a parcel of property having substantially similar value. If
First Party shall fai1 to exercise or waive exercise of its right of first
refusal within the said fifteen (15) day period, then First Party's right
of first refusal shall be deemed to have been waived as to that particular
Proposed Contract and First Party shall furnish a certificate of waiver as
hereinafter provided (although failure to so provide a certificate shall not
abrogate the effects of the waiver). Notwithstanding and in addition to the
foregoing, if First Party exercises its right of first refusal, it shall not be
bound by any use restrictions contained in the Proposed Contract and shall
not be bound by any limitations on further transfer, assignment or
subletting of its interests, the parties specifically recognizing that First
Party's exercise of its right of first refusal will likely be for the purpose of
preserving its investment in the Center and adjacent lands and not, necessarily,
to operate the business located on the property that is the subject matter of
the Proposed Contract.
(c) If First Party shall waive its right of first refusal or
shall fail to exercise said right within fifteen (15) days after receipt of the
aforestated notice and the Proposed Contract, First Party's waiver shall be
evidenced by a certificate executed by First Party in recordable form, which
shall be delivered to the applicable owner (although the failure to obtain or
record any such certificate shall not abrogate the effects of any waiver that
may exist). In the event First Party elects not to proceed with the purchase or
lease as provided for in this paragraph, the applicable owner may proceed with
the transaction contemplated by the Proposed Contract; provided, however, that
First Party's right of first refusal provided herein shall also apply to (i) any
subsequent proposed contracts to purchase or lease and (ii) any material changes
to the terms or conditions of
16
the Proposed Contract (any change in the economic terms shall be deemed
material) or any subsequent proposed contracts or leases.
(d) Any sale, lease or other transfer of any portion of the
Center or any interest therein without notice to First Party and waiver of First
Party's right of first refusal as aforesaid shall be void.
(e) This paragraph shall not apply to (i) any property owned
by First Party or acquired from First Party through foreclosure or deed in lieu
thereof or (ii) the acquisition of title by any bank, life insurance company,
federal or state savings and loan association, real estate investment trust or
other institutional lender which acquires its title as a result of owning a
mortgage upon all or a portion of the Center, and this shall be so whether the
title is acquired through foreclosure proceedings or by deed in lieu thereof,
but this paragraph shall apply to a sale, lease or other transfer by any such
institution which so acquires title. Anything herein contained to the contrary
notwithstanding, if (and only if) required in order for the provisions of this
paragraph to be effective and enforceable under applicable law, the provisions
of this paragraph shall terminate twenty-one (21) years after the date of
recording of this instrument; otherwise, the provisions of this paragraph shall
continue in full force and effect until the date this Agreement is terminated.
11. (a) Anything to the contrary contained in this Agreement
notwithstanding, specific performance and/or injunctive relief shall
specifically be available for breach or violation of, or default under, any
provision contained in paragraphs 3, 4, 5, 9 or 10 above, it being expressly
acknowledged and agreed that damages may, at best, be difficult to ascertain and
would be an inadequate remedy in any event.
(b) The prevailing party in any action in connection with this
Agreement shall be entitled to the award of court costs and a reasonable
attorneys' and paralegals' fees at all tribunal levels and in connection with
all proceedings, whether or not suit is instituted. Whenever in this Agreement
the term "costs of collection" or words of similar import are used, same shall
include sums awarded pursuant to this subparagraph.
12. Each owner from time to time of the Center, or any portion thereof,
agrees, promptly upon request, to furnish from time to time to any other such
owner in writing such truthful estoppel information and/or one or more
confirmatory easements (confirmatory of the general easements granted hereby) as
may be reasonably requested.
17
13. In the event any portion of the Center is condemned or taken
through eminent domain, the owner of the property so taken shall be entitled to
the full award therefor as if this Agreement were not in existence and the other
owner(s) shall not be entitled to share in any portion of the award as a result
of the existence of this Agreement; provided, however, that the foregoing shall
not prevent an award to any other owner(s) for the diminution in value of the
property of the other owner(s), provided same does not reduce the award payable
to the owner whose property was condemned or taken.
14. Nothing contained herein shall be construed as a dedication of
the easements granted herein to the general public.
15. (a) This Agreement shall be a covenant running with the land and
shall be binding upon and inure to the benefit of, and may be enforced by, the
owners from time to time of every portion of the Center, their successors,
assigns, employees, agents, customers, tenants, guests, licensees, invitees and
mortgagees. Notwithstanding the foregoing, this Agreement may be abrogated,
modified, terminated, rescinded or amended in whole or in part by an instrument
executed by the then owners of all portions of the Center, joined by their
respective mortgagees (if any); and the joinder of any tenants, guests,
licensees or invitees of any such owner (or anyone else) shall specifically not
be required in connection with any of the foregoing.
(b) Anything in this Agreement to the contrary
notwithstanding, the rights of First Party under this Agreement may only be
assigned by a written instrument of assignment, a counterpart of which is
recorded in the Public Records of Dade County, Florida. Any party receiving such
an assignment shall be deemed a successor First Party and shall be entitled to
all of the rights and shall be deemed to have assumed all of the obligations of
First Party under this Agreement. Any such assignment shall include the address
of the assignee for notice purposes and, in conjunction with such assignment,
the assignor shall furnish the assignee with the then current Notices Schedule
(as hereinafter defined).
(c) First Party shall have the unilateral right by
supplemental declaration to add to the lands comprising a part of the Center any
lands owned by First Party (or owned by a third party, provided such third party
joins in such supplemental declaration). First Party shall have the unilateral
right by supplemental declaration to withdraw from the effects of this Agreement
any land owned by First Party (or by a third party, provided such third party
joins in such supplemental declaration); provided, however, that the areas cross
hatched and diagonally lined on the Site Plan attached hereto as Exhibit "C" may
not be withdrawn from the effects of this Agreement without the consent of all
owners of property within the Center.
18
(d) Anything in this Agreement to the contrary
notwithstanding, but in addition to more expansive rights granted to First Party
elsewhere in this Agreement (such as, without limitation, the right to
unilaterally impose exclusive or restricted use provisions or to permit
otherwise prohibited uses on all or portions of the Center under section 4(g)
without the joinder of any other owners), First Party may, from time to time,
unilaterally file one or more supplemental declarations solely affecting
portions of the Center that it owns (or that a third party owns, provided such
third party joins in the supplemental declaration), which supplemental
declarations reconfigure the Site Plan as it relates to the land legally
described in such supplemental declarations or otherwise deals with such land or
its owner (such as, by way of example and not by way of limitation, by limiting
gross square footage of building area, height, use or other matters pertaining
to such land that do not affect other land within the Center, or limiting First
Party's rights, as to such owner or land only, in respect of matters under this
Agreement that are within First Party's control). Any such supplemental
declaration may be unilaterally amended or terminated by First Party, joined by
the owner(s) of the land legally described in the supplemental declaration that
is the subject matter of such amendment or termination and joined by any other
party, if any, specified in such supplemental declaration (or in a subsequently
filed supplemental declaration) as having to join in any such amendment or
termination for it to be effective. Notwithstanding the foregoing, use of the
areas cross hatched and diagonally lined on the Site Plan attached hereto as
Exhibit "C" for the purposes specified in subparagraphs 2(a) and 2(c) may not be
changed except as therein provided.
16. Any notices required to be given hereunder shall be given by
certified mail, return receipt requested, by hand delivery, by facsimile machine
or by Federal Express or similar overnight courier service, postage prepaid, to
the address set forth in the introductory paragraph of this Agreement, in a
supplemental declaration, or in the Notice Schedule, as hereinafter defined.
Except as and to the extent expressly provided for below with respect to notices
of change of address, notices that are given in the manner aforestated shall be
effective (regardless of whether or not they are actually received) upon mailing
or depositing with Federal Express or similar overnight courier service, if
mailed or deposited with Federal Express or similar overnight courier service,
upon transmission if sent by facsimile machine or upon receipt if hand
delivered. Any party hereto may change its address for notice by notifying the
other parties hereto in the manner provided for above; provided, however,
that notices of change of address shall not be effective unless and until they
are actually received, delivery is refused or they are returned because the
address to which they were sent is no longer a current address and the party
sending such notice was not properly furnished a
19
notification of change of address. First Party shall at all times maintain a
list of the most current addresses that have been furnished to First Party for
owners and mortgagees of portions of the Center (the "Notice Schedule") and
shall, upon request, make such Notice Schedule available to those requesting
same. Copies of any notices required to be given to another party hereto shall
also be given to the holder of any mortgage encumbering the property owned by
such party if the holder of any such mortgage has notified (in the manner
provided for above for giving notice of change of address) the party giving
notice of such holder's address and requested that notices be furnished to such
holder. Notice given by the attorney for any party shall be as effective as if
given by that party.
17. This Agreement shall be governed by the laws of the State of
Florida. If any portion of this Agreement shall be or become illegal or
unenforceable for any reason, the remaining portions shall remain in full force
and effect and shall be enforceable to the fullest extent permitted by law. Any
failure to enforce any restriction, covenant, condition, obligation,
reservation, right, power or charge herein contained shall in no event be deemed
a waiver of the right to thereafter enforce any of same. Upon sale of any
portion of the Center, the transferor thereof shall be relieved of personal
liability hereunder related to the time period subsequent to such transfer with
respect to the portion so transferred. This instrument may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same document.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the day and year first above written.
Witnesses: DOCUMENTATION CORP., a Florida
corporation
Sign Name:_________________________ By:_______________________________
Print Name:________________________ Xxxx X. Xxxxxxxx, President
Sign Name:_________________________
Print Name:________________________
BERSIN DEVELOPMENT CORP., a
Florida corporation
Sign Name:_________________________ By:_______________________________
Print Name:________________________ Xxxxxxx X. Xxxxxxxxx,
President
Sign Name:_________________________
Print Name:________________________
20
STATE OF ______________)
) SS.
COUNTY OF______________)
The foregoing instrument was acknowledged before me this ___
day of __________, 199__ by Xxxx X. Xxxxxxxx, as President of Documentation
Corp., a Florida corporation, in the capacity aforestated; such person is
personally known to me or has produced a driver's license as identification.
Sign Name:________________________
Print Name:_______________________
Notary Public
My Commission Expires:
_____________________
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__ by Xxxxxxx X. Xxxxxxxxx, as President of Bersin Development
Corp., a Florida corporation, in the capacity aforestated; such person is
personally known to me or has produced a driver's license as
identification.
Sign Name:_________________________
Print Name:________________________
Notary Public
My Commission Expires:
_____________________
21
JOINDER
The undersigned, General Motors Acceptance Corporation, Mortgagee under
those certain Mortgages recorded in Official Records Book ______, Pages ______
and ______, of the Public Records of Dade County, Florida, as modified
(the "Mortgages"), encumbering lands which include the lands covered by the
foregoing Declaration, hereby joins in the foregoing Declaration for the
purpose of binding the lands encumbered by its Mortgages to the effects of
foregoing Declaration.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed as of the ___ day of ____________, 199__.
GENERAL MOTORS ACCEPTANCE
CORPORATION, a New York corporation
By:_________________________________
Print Name:_________________________
Title:______________________________
STATE OF_______________)
) SS.
COUNTY OF______________)
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__, by ____________________________ as _____________________ of
General Motors Acceptance Corporation, a New York corporation, in the
capacity aforestated; such person is personally known to me or has produced
a driver's license as identification.
Sign Name:___________________________
Print Name:__________________________
My Commission Expires: Notary Public
Serial No. (none if blank):__________
[NOTARIAL SEAL]
EXHIBIT "A" TO THE REA
Legal Description of the Center
Exhibit "B" to REA
[Property Plat Map appears here]
Exhibit "C" to REA
[Property Plat Map appears here]
EXHIBIT "F"
Alternative Site Plan
Exhibit F to Contract
[Property Plat Map appears here]
EXHIBIT "G"
Declaration of Restrictions
This instrument prepared by
and after recording return to:
Xxxxxx X. Xxxxx, Esq.
Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
(Silver Diner)
DECLARATION OF RESTRICTIONS
This Declaration of Restrictions is entered into by Bersin Development
Corp. and Documentation Corp., each a Florida corporation, each as to an
undivided 50% interest ("First Owner"), and Preparation, Inc. and Xxxxxxx X.
Xxxxxxxxx, each as to an undivided 50% interest ("Second Owner", and
collectively with First Owner, "Owners"), whose address is c/o Berkowitz
Development Group, 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxx
00000, for the benefit of Silver Diner Development, Inc., a Virginia corporation
("Beneficiary"), whose address is 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000.
WHEREAS, First Owner is contemporaneously herewith, conveying to
Beneficiary the Property legally described on Exhibit "A" attached hereto and
made a part hereof (the "Outparcel");
WHEREAS, Owner currently owns lands in the vicinity of the Outparcel,
which lands (including the Outparcel) are legally described on Exhibit "B"
attached hereto and made a part hereof (the "Xxxxxxx Village Center Lands");
WHEREAS, as a material inducement for Beneficiary to purchase the
Outparcel, Owner has agreed to impose the following restrictions on Xxxxxxx
Village Center Lands:
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Owner agrees as follows:
1. For so long as the Outparcel is used as a family style restaurant
with the word "diner" in its name, no other business operated on any portion of
the Xxxxxxx Village Center Lands can use the word "diner" in its name or logo.
2. In the event the portion of the Xxxxxxx Village Center Lands
designated as Parcel I on the site plan attached hereto as Exhibit "C" is used
for restaurant purposes, there shall be constructed, on or
before the date such restaurant opens for business, parking spaces within
all or portions of the boldly highlighted area surrounding said Parcel I for no
less than 110 cars.
3. This Declaration is given for the benefit of Beneficiary and its
successors and assigns, and may be enforced by Beneficiary and such successors
and assigns, by injunction or otherwise, Owner hereby recognizing that damages
may be an insufficient remedy in the event of violation of the provisions of
this Declaration.
4. If enforcement of the terms of this Declaration becomes necessary,
the prevailing party in any action pertaining thereto shall be entitled to an
award of court costs and reasonable attorneys' fees at all tribunal levels from
the party or parties causing the violation.
5. Beneficiary, by joining herein, agrees to provide, from time to time
to time upon request, an estoppel letter containing such truthful information as
Owner, its successors or assigns may, from time to time, reasonably request.
6. This Declaration shall be a covenant running with the land and shall
be binding upon and inure to the benefit of the owner from time to time of all
of the applicable portions of the Xxxxxxx Village Center Lands, and also shall
be binding upon and inure to the benefit of Beneficiary, its successors and
assigns.
7. This Declaration may be modified, terminated, rescinded or amended
in whole or in part by an instrument executed by the owner(s) of the applicable
portions of the Xxxxxxx Village Center Lands, and by the owner of the Outparcel,
joined by their respective mortgagees, if any, and joinder by no other party
shall be required.
8. Any notices required to be given hereunder shall be given by
certified mail, return receipt requested, postage prepaid, or by overnight
delivery service and shall be deemed effective upon receipt or upon refusal or
delivery or inability to deliver by virtue of an unnoticed change of address or
similar cause. Notices shall be forwarded to the addresses set forth in the
introductory paragraph of this Declaration, or to such other addresses as the
parties may furnish by notice as provided in this paragraph.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the day and date first above written.
2
Witnesses: DOCUMENTATION CORP., a Florida
corporation
Sign Name:_________________________ By:______________________________
Print Name:________________________ Xxxx Xxxxxxxx,
President
Sign Name:_________________________
Print Name:________________________
(as to Documentation)
BERSIN DEVELOPMENT CORP., a
Florida corporation
Sign Name:_________________________ By:______________________________
Print Name:________________________ Xxxxxxx X. Xxxxxxxxx,
President
Sign Name:_________________________
Print Name:________________________
(as to Documentation)
PREPARATION, INC., a
Florida corporation
Sign Name:_________________________ By:______________________________
Print Name:________________________ Xxxx Xxxxxxxx,
President
Sign Name:_________________________
Print Name:________________________
(as to Preparation)
Sign Name:_________________________ _________________________________
Print Name:________________________ Xxxxxxx X. Xxxxxxxxx
Sign Name:_________________________
Print Name:________________________
(as to Xxxxxxxxx)
SILVER DINER DEVELOPMENT, INC.,
a Virginia corporation
Sign Name:_________________________ By:______________________________
Print Name:________________________ Print Name:______________________
Title:___________________________
Sign Name:_________________________
Print Name:________________________
(as to Silver Diner)
3
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__ by Xxxx Xxxxxxxx, as President of Documentation Corp., a
Florida corporation, in the capacity aforestated; such person is
personally known to me or has produced a driver's license as identification.
Sign Name:____________________________
Print Name:___________________________
Notary Public
My Commission Expires:
_____________________
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__ by Xxxxxxx X. Xxxxxxxxx, both individually and as President
of Bersin Development Corp., a Florida corporation, in the capacity
aforestated; such person is personally known to me or has produced a driver's
license as identification.
Sign Name:___________________________
Print Name:__________________________
Notary Public
Serial No. (none if blank):__________
My Commission Expires:
_____________________
4
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__ by Xxxx Xxxxxxxx, as President of Preparation Inc., a
Florida corporation, in the capacity aforestated; such person is personally
known to me or has produced a driver's license as identification.
Sign Name:____________________________
Print Name:___________________________
Notary Public
My Commission Expires:
_____________________
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__ by ___________________________ as _________________________
of Silver Diner Development, Inc., a Virginia corporation, in the capacity
aforestated; such person is personally known to me or has produced a driver's
license as identification.
Sign Name:____________________________
Print Name:___________________________
Notary Public
My Commission Expires:
_____________________
5
JOINDER
The undersigned, General Motors Acceptance Corporation, Mortgagee under
those certain Mortgages recorded in Official Records Book ______, Pages ______
and ______, of the Public Records of Dade County, Florida, as modified
(the "Mortgages"), encumbering lands which include the lands covered by the
foregoing Declaration, hereby joins in the foregoing Declaration for the
purpose of binding the lands encumbered by its Mortgages to the effects of
foregoing Declaration.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed as of the ___ day of ____________, 199__.
GENERAL MOTORS ACCEPTANCE
CORPORATION, a New York
corporation
By:_____________________________
Print Name:_____________________
Title:__________________________
STATE OF )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__, by __________________________ as _________________________
of General Motors Acceptance Corporation, a New York corporation, in the
capacity aforestated; such person is personally known to me or has produced a
driver's license as identification.
Sign Name:__________________________
Print Name:_________________________
Notary Public
Serial No. (none if blank):_________
[NOTARIAL SEAL]
My Commission Expires:
_____________________
6
EXHIBIT "A" TO THE
DECLARATION OF RESTRICTIONS
Legal Description of the Silver Diner Property
LESS AND EXCEPT the portion thereof dedicated for public purposes on the plat of
KV Center West, according to the plat thereof recorded in Plat Book 148, Page
33, of the Public Records of Dade County, Florida.
PLUS the following two parcels:
Xxxxxxxxx Parcel: South 1/2 of Southeast 1/4 of Southeast 1/4 of Northeast 1/4
of Southwest 1/4 of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 39 East, Dade County,
Florida, less the East 35 feet thereof for right-of-way.
USMS Sliver: All that portion of the South 3/4 of the Southeast 1/4 of Section
36, Township 54 South, Range 39 East, Dade County, Florida, lying Northwesterly
of the Northwesterly line of the right-of-way of State Road 821 and South of the
North line of the Southwest 1/4 of the Southeast 1/4 of said
Section 36, lying and being in Dade County, Florida.
Exhibit "B" (2 of 3)
XXXXXXX VILLAGE CENTER
Exhibit "B" (3 of 3)
[Property Plat Map appears here]
For Informational
purposes only.
Legal description
governs.
Improvements are
subject to change
by the owners of
the applicable
portions of the
property.
Exhibit "C" to Silver Diner Restrictions
[Property Plat Map appears here]
EXHIBIT "H"
Supplemental Declaration
This instrument prepared by
and after recording return to:
Xxxxxx X. Xxxxx, Esq.
Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
SUPPLEMENTAL DECLARATION
(SILVER DINER)
This Supplemental Declaration is made and entered into as of the ___
day of ____________, 199__ by Documentation Corp. and Bersin Development
Corp., each a Florida corporation, each as to an undivided 50% interest,
whose address is 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx,
Xxxxxxx 00000, hereinafter collectively referred to as "First Party".
WHEREAS, First Party is the owner of a certain parcel of real property
legally described on Exhibit "A" attached hereto and made a part hereof (the
"Property"), which is labeled Parcel F on Exhibit "B" attached hereto and made a
part hereof; and
WHEREAS, First Party has heretofore burdened the Property, and
additional lands, with a Declaration of Restrictions and Reciprocal Easement
Agreement recorded in Official Records Book ______, Page ______, of the Public
Records of Dade County, Florida (the "Declaration"); and
WHEREAS, the Declaration contemplates the entering into of a
Supplemental Declaration in conjunction with sale of the Property, which is to
occur on or about the date hereof;
NOW, THEREFORE, for valuable consideration, First Party declares and
agrees as follows:
1. All terms capitalized but not defined herein shall have the
meanings ascribed to such terms in the Declaration.
2. The gross square footage of building area on the Property, including
any outdoor serving area, shall be no more than 8,000 square feet; provided
however, that the width (the east-west dimension) of any building constructed on
the Property at any time shall not exceed 100 lineal feet.
3. The height of any improvements located on the Property at any time
shall have a maximum height above finish grade that does not exceed 22 feet in
height as to all portions of the
building with the exception of decorative facades, which facades may be
placed on any of the sides of the building and may extend up to a maximum height
above finish grade of 28 feet; provided however, that no facade shall be wider
than 20% of the length of the side of the building on which said facade is
located.
4. The Property shall be used solely for a full service
restaurant. However, notwithstanding and in addition to the foregoing, no
portion of the Property may be used as a restaurant serving primarily either
Mexican cuisine or seafood. Only a restaurant which derives more than (a) 10% of
its gross sales from the sale of Mexican food shall be deemed to violate the
foregoing restriction respecting Mexican cuisine or (b) 25% of its gross
sales from the sale of seafood shall be deemed to violate the foregoing
restriction respecting seafood.
5. For as long as the Property is used as a family style restaurant
with the word "diner" in its name, no other portion of the Center, as defined in
the Declaration on the date hereof (which shall include any subsequent additions
thereto (but only to the extent within the lands burdened by that certain
Declaration of Restriction naming ________________________ as beneficiary, as
beneficiary, which is being recorded contemporaneously herewith) and shall also
include any subsequent withdrawals therefrom), shall use the word "diner" in its
name or logo. This provision may be enforced by specific performance by the
occupant from time to time of the Property, it being recognized that remedies at
law may be inadequate. This provision shall supplement, but is not intended to
supersede, the provisions of any separate recorded instrument pertaining to the
same subject matter.
6. No business located on Parcel G depicted on the site plan attached
to the Declaration as Exhibit "C" shall be operated as a restaurant; provided,
however, that food/beverage service businesses containing not more than 2,500
square feet such as, but not limited to, a doughnut shop (such as Dunkin'
Donuts), bagel shop, cocktail lounge and/or coffee shop (such as StarBucks),
shall be permitted, regardless of whether or not sit down service is provided
therein, provided further that such permitted food/beverage service businesses
shall not occupy more than 5,000 square feet of Parcel G in the aggregate. This
provision may be enforced by specific performance by the occupant from time to
time of the Property, it being recognized that remedies at law may be
inadequate.
7. For so long as the Property is used as a family style restaurant
which has a significant breakfast component, no other portion of the Center, as
defined in the Declaration on the date hereof (which shall not include any
subsequent additions thereto, but shall include any subsequent withdrawals
therefrom), shall be
2
used as a family style restaurant which has a significant breakfast component,
such as, but not limited to, Denny's, IHOP or Perkins. The foregoing is not
intended to restrict restaurants such as, but not limited to, Chevy's, Hops or
Monty's from serving breakfast. This provision may be enforced by specific
performance by the occupant from time to time of the Property, it being
recognized that remedies at law may be inadequate.
8. (a) Notwithstanding anything contained in the Declaration to the
contrary, the right of first refusal set forth in Section 10 of the Declaration
shall not apply to a transfer, sale or lease to (i) any entity into which or
with which the owner of the Property may merge or consolidate, (ii) any
subsidiary of such owner, (iii) any commonly controlled affiliate of such owner,
(iv) any franchisee of such owner or (v) any party or entity as part of any
transfer, sale or lease of any of owner's assets if such transfer, sale or lease
includes, or is of, substantially all of the assets of the owner's Dade and
Broward County operations; provided in each such event that the operation and
use of the Property after such event remains substantially the same as existed
prior thereto; and provided, further, however, that nothing herein contained
shall diminish or in any way affect any other provision of the Declaration or
this Supplemental Declaration.
(b) Notwithstanding anything contained in the Declaration to
the contrary, the right of first refusal set forth in Section 10 of the
Declaration shall not apply to a transfer, acquisition, sale or lease to or by
(i) any party involved in a sale/leaseback transaction with the owner (lessee)
of the Property, or (ii) any mortgagee (or an affiliated entity of any
mortgagee) that acquires title to the Property; provided in each such event that
nothing herein contained shall diminish or in any way affect any other provision
of the Declaration or this Supplemental Declaration.
(c) Notwithstanding the foregoing paragraphs (a) or (b) of
this Section, a sale, transfer or lease otherwise exempted from the right of
first refusal provided for in the Declaration shall nonetheless be subject to
such right if the party acquiring or leasing the Property intends to utilize
same for the operation of an establishment that features nude (male or female)
dancing or that utilizes scantily clad men or women as waiters, dancers, hosts
or otherwise in connection with its operations (such as for example, Hooters,
Melons or Porkys); provided, however, that if First Party elects, in its sole
and absolute discretion, to make the foregoing use a prohibited use throughout
the Center (as same may be constituted from time to time), by including same in
Section 4(g) of the Declaration, then in such event, in lieu of a
3
transfer, sale or lease to party engaged in such activities being subject to the
right of first refusal as aforesaid, any transfer, sale or lease to a party
seeking to engage in such activities shall be prohibited unless expressly
approved in writing by First Party in its sole and absolute discretion;
provided that nothing herein contained shall diminish or in any way affect
any other provision of the Declaration or this Supplemental Declaration.
(d) Notwithstanding anything contained in the Declaration to
the contrary, the right of first refusal set forth in Section 10 of the
Declaration shall not apply to any transfer, sale, acquisition or lease of the
Property to or by any party from and after the date that is fifteen (15) years
following the date of this Supplemental Declaration; provided that the foregoing
is not intended to diminish or otherwise affect any other provision of the
Declaration (including, but not limited to, the use restrictions set forth in
Section 4 thereof) or this Supplemental Declaration.
9. Notwithstanding the provisions of paragraph 2 of the Declaration
that grant the First Party the right to construct a direct entrance into the
Center from Xxxxxxx Drive, First Party agrees that if such direct entrance is
not fully constructed and completed prior to the date that the operations to be
conducted in the building and improvements constructed on the Property are
opened for business with the public (the "Opening Date"), then, construction of
such entrance shall not be commenced prior to a date that is less than six (6)
months after the Opening Date. First Party further agrees that it will not
commence such construction activities prior to the Opening Date unless it has in
good faith determined that the construction of the entrance will be completed
before the Opening Date, as same may be reasonably projected by the then owner
(or contract purchaser) of the Property, and the contract relating to the
construction of such entrance requires that same be completed prior to the
projected Opening Date. First Party shall give owner not less than thirty (30)
days' advance notice of the date on which construction of the entrance is
expected to commence.
10. Notwithstanding the provisions of paragraph 3 of the Declaration
that grant to First Party the unilateral right to install controlled parking
within the lands that are from time to time included within the Center, First
Party agrees that, as to the diagonally lined portions of the Center as depicted
on Exhibit "C" to the Declaration as it exists on the date hereof, excluding the
portion thereof located north of Parcel H, controlled parking will not be
installed without the approval of the then owner of the Property, which approval
shall not be unreasonably withheld.
4
11. Notwithstanding the provisions of paragraph 3 of the Declaration
that grant to First Party the unilateral right to install certain signage
limiting parking rights, in the event a movie theater is constructed north of
the Center (as defined on the date hereof), within any of the lands depicted on
Exhibit "B" to the Declaration as it exists on the date hereof, First Party
shall, at the request of the then owner of the Property, install signs at the
entrances to the diagonally lined portions of the Center as depicted on Exhibit
"C" to the Declaration as it exists on the date hereof, excluding the portion
thereof located north of Parcel H, which disclose that such portions of the
Center are not to be utilized for parking by patrons of the movie theater.
12. The name and address for the owner of the Property, from and after
the date hereof until changed as provided in the Declaration, is ______________.
13. This Supplemental Declaration is intended to supplement the
Declaration and, in the event of a conflict, to supersede same. Except as and to
extent supplemented hereby, the Declaration shall remain in full force and
effect according to its terms.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the day and date first above written.
Witnesses: DOCUMENTATION CORP., a Florida
corporation
Sign Name:________________________ By:___________________________
Print Name:_______________________ Print Name:___________________
Title:________________________
Sign Name:________________________
Print Name:_______________________
(as to Documentation)
BERSIN DEVELOPMENT CORP., a
Florida corporation
Sign Name:_________________________ By:________________________
Print Name:________________________ Xxxxxxx X. Xxxxxxxxx,
President
Sign Name:_________________________
Print Name:________________________
(as to Bersin)
STATE OF )
) SS.
COUNTY OF )
5
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__ by __________________________, as _________________________
of Documentation Corp., a Florida corporation, in the capacity
aforestated; such person is personally known to me or has produced a driver's
license as identification.
Sign Name:____________________________
Print Name:___________________________
Notary Public
My Commission Expires:
_____________________
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this ___ day of
____________, 199__ by Xxxxxxx X. Xxxxxxxxx, as President of Bersin Development
Corp., a Florida corporation, in the capacity aforestated; such person is
personally known to me or has produced a driver's license as
identification.
Sign Name:__________________________
Print Name:_________________________
Notary Public
Serial No. (none if blank):__________
My Commission Expires:
_____________________
6
JOINDER
The undersigned, General Motors Acceptance Corporation, Mortgagee under
those certain Mortgages recorded in Official Records Book ______, Pages ______
and ______, of the Public Records of Dade County, Florida, as modified
(the "Mortgages"), encumbering lands which include the lands covered by the
foregoing Supplemental Declaration, hereby joins in the foregoing
Supplemental Declaration for the purpose of binding the lands encumbered by
its Mortgages to the effects of foregoing Supplemental Declaration.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed as of the ___ day of ____________, 199__.
GENERAL MOTORS ACCEPTANCE
CORPORATION, a New York
corporation
By:_____________________________
Print Name:_____________________
Title:__________________________
STATE OF )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this _______ day of
___________, 199__, by _________________________ as _________________________ of
General Motors Acceptance Corporation, a New York corporation, in the capacity
aforestated; such person is personally known to me or has produced a driver's
license as identification.
Sign Name:____________________________
Print Name:___________________________
Notary Public
Serial No. (none if blank):___________
[NOTARIAL SEAL]
My Commission Expires:
_____________________
EXHIBIT "A" TO THE
SUPPLEMENTAL DECLARATION
Legal Description of the Property
EXHIBIT "B" TO THE
SUPPLEMENTAL DECLARATION
Site Plan Reflecting Property
