Exhibit 10.6
TRI-PARTY DEVELOPER'S AGREEMENT
THIS AGREEMENT, is made as of the last date of the last signatory
party
executing the same, by and among the CITY OF LAUDERDALE LAKES, a Florida
municipal corporation ("CITY"), AGU Entertainment Corp. ("AGU"),
and Tarragon
South Development Corp. ("TARRAGON"),
W I T N E S S E T H
WHEREAS, AGU owns
certain real property described upon Exhibit A
("Property") generally located on the southwest corner of West Oakland Park
Boulevard and Northwest 31st Avenue,
and
WHEREAS, the Property
is improved by a metal
building, paved
parking
lot and associated features ("Improvements")
provided
that
the term
Improvements, for purposes of any
demolition described herein, shall not include
any existing perimeter fence in good
condition, and
WHEREAS, TARRAGON is the contract purchaser of the Property
pursuant to
a contract with AGU ("Contract"), and
WHEREAS, the Contract
is scheduled to close
on or about December
15,
2005, and
WHEREAS, TARRAGON
is prepared to advance certain sums to AGU in
anticipation of the closing and in consideration of a mortgage against the
Property securing a promissory note with respect to such advancement
("Advance"), and
WHEREAS, the Property has been allowed to fall into disrepair, and
CITY
has issued various notices of violation, as described upon Exhibit B,
attached
hereto and made a part hereof, with respect to certain items of
non-compliance
regarding various regulations which apply to the Property ("Notices of
Violation"), and
WHEREAS, as a
precondition to making
the Advance, TARRAGON
requires
that the CITY subordinate its Notices of Violation in order
that TARRAGON can
make the Advance contemplated herein and
subsequently take title to the Property
without the encumbrance thereof, and
1
<PAGE>
WHEREAS, CITY is
prepared to subordinate such Notices of Violation and
its inchoate lien upon certain assurances,
and
WHEREAS, after the
issuance of the Notices of Violation, AGU has
expended monies to bring certain items of
non-compliance
into compliance,
but
has requested consideration on other items that
still require repair including,
but not limited to the painting of the building and parking lot repairs
("Repairs") which will be resolved by the subsequent demolition of the
Improvements, making the Repairs
unnecessary, and
WHEREAS, CITY wants certain assurances that either (i) the Repairs
will
be made in a timely manner and fashion or (ii) upon
demolition,
the Property
will not be allowed to subsequently become
a nuisance to the community, and
WHEREAS, TARRAGON
has given certain assurances with respect to the
concerns expressed by the CITY, and
WHEREAS, contemporaneously with the execution of this
Agreement, AGU
and TARRAGON will cause the Advance to be made in part from the sums
constituting the Contract Deposit, holding back from the sum to be
advanced an
amount of Three Hundred Fifty Thousand ($350,000.00) Dollars, in which CITY
shall have a secured interest,
NOW, THEREFORE,
in consideration of the mutual covenants herein
contained, the legal sufficiency of which is
hereby acknowledged,
the parties
agree as follows:
RATIFICATION OF
REPRESENTATIONS: The
representations set forth in the
preamble paragraphs hereof are hereby
restated as true and correct, and the same
are incorporated herein as if set forth in
verbatim.
1. SUBORDINATION OF NOTICES OF VIOLATION: Upon the satisfaction of the
conditions precedent set forth in Paragraph 2 hereof, CITY'S interests and
2
<PAGE>
inchoate lien(s) under the Notices of
Violation described
upon Exhibit B, which
constitute all of the Notices of Violation
presently issued with
respect to the
Property, shall be deemed subordinate to the lien of such Advance, and the
mortgage and security interests in TARRAGON therefor arising from or on the
account of such Notices of Violation. In furtherance thereof, TARRAGON'S
Advance, upon recordation of evidence thereof in
the Public Records of Broward
County, Florida, shall have priority over
and be superior to the above described
Notices of Violation, inchoate lien(s) or
any lien arising therefrom.
2. CONDITION
PRECEDENT:
The following
shall constitute conditions
precedent to the CITY'S obligations as set
forth in Paragraph 1 hereof:
A.
TARRAGON shall
release to AGU 1.5 million dollars (and such other
monies as they may agree) constituting in part the deposit(s) under
the
Contract, as the
Advance, provided that
TARRAGON shall hold
back the
sum of Three
Hundred Fifty Thousand ($350,000.00) Dollars at the
closing of the initial Advance for the purpose of assuring
pursuant to
Section 3 hereof that either (i) the Repairs are completed no later
than February
15, 2006, or (ii) the Improvements are completely
demolished and grounds completely planted no later than March 15,
2006.
TARRAGON shall be
deemed a fiduciary of
the CITY with respect to such
Three Hundred Fifty Thousand ($350,000.00) Dollars, and shall
hold the
same for the CITY under a duty to the CITY as a beneficiary
thereof to
disburse such
sums to the CITY
upon the CITY'S presentation of a
certified copy of a
resolution
of the City Commission of the CITY
demanding the same; provided, however, TARRAGON shall have no duty to
question the authenticity or due adoption of such resolution.
B.
There shall be no foreclosure action pending pertaining to the first
mortgage in favor of Charley Zeches in her capacity as Trustee of
Lakes
Holding Trust,
U/A, dated July 26, 2001 ("First
Mortgagee"),
dated
December 20, 2004, recorded December 27, 2004, in Official Records
Book
38764, Page 1973, of the Public Records of Broward County,
Florida, in
the original principal
amount of Seven Million Dollars, or the second
mortgage in
favor of Mitchell Entertainment Company ("Second
Mortgagee"), dated
December 20, 2004, in the original principal amount
of Three Million
Dollars, recorded December 27, 2004, in Official
Records Book 38765,
Page 127, of the Public Records of Broward County,
Florida.
3
<PAGE>
3. DEMOLITION OF IMPROVEMENTS AND MAINTENANCE: If AGU shall have
conveyed to TARRAGON fee-simple title to the Property,
and the instrument of
transfer shall have been recorded in the Public Records of Broward County,
Florida and, then no later than March 15, 2006, TARRAGON shall cause the
Improvements to have been completely
demolished,
the cleared land
leveled and
planted with Bahia Grass, and the Property properly fenced and gated so as to
secure the same with locked gates, with the duplicate keys thereto to be
delivered to the City Manager and the Chief
of Police. In the event AGU does not
convey title to TARRAGON, then AGU shall either (i) cause the Repairs to be
completed no later than February 15, 2006,
or (ii) cause the
Improvements to be
completely demolished, the cleared land
leveled and planted with Bahia Grass and
the Property properly fenced and gated so as to secure
the same with
locked
gates, with duplicate keys thereto
delivered to the City
Manager and the Chief
of Police. In either of such events, the CITY shall cause the Notices of
Violation to be discharged and the CITY'S interest in the Three Hundred
Fifty
Thousand ($350,000.00) Dollars to be
released, whereupon
TARRAGON will pay AGU
the sum of Three Hundred Fifty Thousand ($350,000.00) Dollars within one (1)
business days from the satisfaction of
either of such requirements.
4. DEMOLITION
RELIEF: In the event that AGU or TARRAGON, as their
interests may appear, shall fail to cause
the Repairs to be made or the complete
demolition of the Improvements, as and within the times provided
herein to be
accomplished, then the CITY shall have the
right, but not the
obligation,
to
demand the disbursement of the Three Hundred Fifty Thousand ($350,000.00)
Dollars held by TARRAGON, for the CITY'S
benefit, as contemplated in Paragraph 2
hereof, in full, and to use all or a portion of the
proceeds thereof to
cause
such Improvements to be demolished,
retaining any
remaining proceeds thereof as
and for liquidated damages, the parties having concluded that
the damage which
may be suffered by the CITY, by virtue of the failure to
perform the Repairs or
demolish the Improvements is not susceptible to specific
calculation,
there
being significant intangible negative impacts to the
CITY and to the community,
as a whole, by the continued existence of the Improvements.
The CITY, through
its agents and employees, shall have a right to access
and enter upon the
Property and to do all things necessary and appropriate to accomplish the
demolition, without liability of any kind
whatsoever to AGU or TARRAGON.
4
<PAGE>
In addition, as an
alternative or cumulative remedy, at the
CITY'S discretion, the CITY shall have the right to seek
injunctive
relief,
mandatory and prohibitory, to cause the discontinuance of the use of the
Property and to cause the demolition of the Improvements. AGU and TARRAGON
acknowledge that the continued use and
existence of the
Improvements
creates
irreparable harm to the CITY and the community
as a whole for which there is no
adequate remedy at law and that the
demolition of the
Improvements
is in the
best interest of the community.
5. COST RECOVERY:
AGU shall immediately establish a cost-recovery
account with the CITY in a minimum amount
of Five Thousand
($5,000.00)
Dollars
in accordance with the applicable
provisions of the
Developmental
Code of the
CITY, conditioned to reimburse the CITY for
all costs suffered or to be suffered
by the CITY in connection herewith, including costs and fees incurred
prior to
the execution hereof, but in connection
with the matters contemplated herein.
6. ENCUMBRANCES:
As of the making of
this Agreement, the
Property is
subject to the encumbrances set forth upon
Exhibit C.
7. ATTORNEY'S
FEES: Should any dispute arise
hereunder,
prevailing
party shall be entitled to recover
against other party
all costs, expenses
and
attorney's fees incurred by prevailing
party in such dispute,
whether or not
suit be brought, and such right shall include all of such costs,
expenses and
attorney's fees through all appeals or
other actions.
5
<PAGE>
8. WAIVER OF JURY
TRIAL: Each of the
parties, as its interest may
appear, hereby waives trial by jury on all
issues otherwise triable by jury.
9. WAIVER: No waiver
by any party of any
provision of this
Agreement
shall be deemed to be a waiver of any other provisions hereof or of any
subsequent breach by any other party of the
same, or any other provision or the
enforcement thereof. A party's consent to or approval of any act
by any other
party requiring the other party's consent or approval shall not be deemed to
render unnecessary the obtaining of such
party's or any other party's consent to
or approval of any subsequent consent or approval of any party,
whether or not
similar to the act so consented to or
approved.
10. NON-ASSIGNABILITY:
This Agreement or any
portion hereof shall not
be assigned or transferred by either party without the
written consent of
the
other party; provided, however, that
Tarragon shall be permitted to transfer its
interest to an entity which is wholly
affiliated with Tarragon.
11. NOTICE:
The delivery of any items and the giving of notice in
compliance with the terms of this
Agreement shall be accomplished by making
same, in writing, and by the delivery thereof to the party intended to
receive
it or by mailing the same to the address of
such party as hereinafter set forth.
In the event such notice is made by mail,
the same shall be given via U.S. mail,
Return Receipt Requested and, unless otherwise provided herein, notice or
delivery by mail shall be effective when
mailed to:
City Manager
City Of Lauderdale Lakes
4300 N. W. 36th S
