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HomeMy WebLinkAboutR-02-1217J-02-984 11/18/02 02-1217 RESOLUTION NO. A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 2 TO THE LEASE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH GROVE HARBOUR MARINA AND CARIBBEAN MARKETPLACE, L.L.C. ("GROVE HARBOUR"), DATED MARCH 12, 1999, AS AMENDED ("LEASE"), TO ADD SUBSECTIONS 6.1(b)(x) AND 6.1(b)(xi) TO PROVIDE CERTAIN LEASEHOLD MORTGAGEES WITH THE RIGHT TO CURE A DEFAULT UNDER THE STATE LEASE OR THE 'STATE WAIVER AND TO PROVIDE THAT THE CITY WILL ENTER INTO A NEW LEASE WITH A LEASEHOLD MORTGAGEE, AT THE REQUEST OF THE LEASEHOLD MORTGAGEE, IN THE EVENT THE LEASE IS TEMINATED FOR ANY REASON, ALL SUBJECT TO CERTAIN CONDITIONS; FURTHER APPROVING THE DELETION OF PARAGRAPH 9(C) OF AMENDMENT NO. 1 TO THE LEASE AGREEMENT IN ITS ENTIRETY AND A NEW PARAGRAPH 9(C) IS SUBSTITUTED IN LIEU THEREOF TO CORRECT A TYPOGRAPHICAL ERROR RELATING TO SECTION 8.3(g). WHEREAS, the City of Miami entered into a lease with Grove Harbour Marina and Caribbean Marketplace, L.L.C. ("Grove Harbour") dated March 12, 1999, as amended ("Lease"), for the leasing of approximately 6.95 acres of upland and 6.6 acres of submerged land in the Dinner Key area; and WHEREAS, in accordance with the Lease, Grove Harbour is required to comply with certain conditions precedent prior to taking possession of the property; and TWA m� �m.7T �mi 1:r!!! A�� 4J� 58 ui it CITY CSN MEETM C Nolo 19 2002 Resolution No. 02-1217 WHEREAS, among those conditions Grove Harbour must submit to the City evidence of a firm financial commitment (s) from the bank(s) that will provide the financing for the construction of the leasehold improvements; and WHEREAS, Grove Harbour has provided to the City letters of financial commitments from two sources: (1) Citrus Bank, N.A. with a loan of $4,938,384 and (2) CIB Marine Capital, LLC, with a loan of $2,500,000, for a total financial commitment of $7,438,384; and WHEREAS, Citrus Bank has requested an amendment to the Grove Harbour Lease to include provisions that allow certain Leasehold Mortgagees to cure a default under the State Lease or the State Waiver and require the City enter into a new lease with a Leasehold Mortgagee, at the request of the Leasehold Mortgagee, in the event the Lease is terminated for any reason, all subject to certain conditions; and WHEREAS, Amendment No. 1 to the Lease Agreement contains a typographical error in Paragraph 9(c), related to a reference to Section 8.3(g); Page 2 of 4 02-1217 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized" to execute Amendment No. 2 to the Lease Agreement, in substantially the attached form, with Grove Harbour Marina and Caribbean Marketplace, L.L.C., dated March 12, 1999, as amended, to add new subsections 6.1(b)(x) and 6.1(b)(xi) to allow certain Leasehold Mortgagees to cure a default under the State Lease or the State Waiver and to require that the City will enter into a new lease with a Leasehold Mortgagee, at the request of the Leasehold Mortgagee, in the event the Lease is terminated for any reason, all subject to certain conditions. Section 3. The deletion of Paragraph 9(c) of Amendment No. 1 to the Lease Agreement in its entirety is approved, and a new Paragraph 9(c) is substituted in lieu thereof, as set forth 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Page 3 of 4 02-1217 in this Amendment to correct a typographical error relating to Section 8.3(g) of the Lease Agreement. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.�' PASSED AND ADOPTED this 19th day of November , 2002. ATTEST: PR'SCILLA A. THOMPSON CITY CLERK APPROVE RM AN NDIRW-AWILARELLO ATTORNEY W6710:tr:AS:BSS RRECTNESSt 11 MANUEL A. DIAZ, �IO R zi If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 4 of 4 02-1217 AMENDMENT NO.2 TO LEASE AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI AND GROVE HARBOUR MARINA AND CARIBBEAN MARKETPLACE, LLC This Amendment is entered into this day of 12002 (the "Amendment") by and between the City of Miami, a municipal corporation of the State of Florida (the "City" or "Lessor") and Grove Harbour Marina and Caribbean Marketplace, L.L.C., a Florida limited liability company, composed of Harbour Management Group Corp. and Southern Cross Marinas, L.L.C., having its offices at 9758 S.W. 24 Street, Miami, Florida 33165 ("Lessee"), for the purpose of modifying that certain Lease and Development Agreement between the City and Lessee dated March 12, 1999 (the "Lease"). WHEREAS, pursuant to the Lease, Lessor leased to Lessee certain property located at approximately 2640 South Bayshore Drive, Miami, Florida; and WHEREAS, pursuant to Section 6.1(b) (ix) of the Lease, Citrus Bank, N.A. has requested that the Lease be amended to implement the provisions of Article VI thereof; and WHEREAS, the City and the Lessee desire and agree to amend the Lease as hereinafter provided. NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and in consideration of other valuable consideration, the parties covenant and agree as follows: 1. A new Section 6.1(b)(x) is hereby added as follows: The City agrees to provide to the Leasehold Mortgagee who is, among the Leasehold Mortgagees, the holder of the most senior Leasehold Mortgage (the "Senior Leasehold Mortgagee") and to CIB Marine Capital, LLC or its successors or assigns of which the City has notice, any notice of default received by the City from the State of Florida or any entity of the State of Florida, including the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, with respect to either the State Lease, the State Lease Property, the Waiver or the Waiver Property, together with a statement as to whether the City intends to cure such default, as soon as is reasonably possible after receipt of any such notice by the City. As between the City and the Lessee, it is agreed that the Senior Leasehold Mortgagee and CIB Marine Capital, LLC or its successors or assigns of which the City has notice shall each have the non - 02 -1217 exclusive right (but not the obligation) to cure any such default, provided the City shall have failed to cure such default five (5) days prior to the expiration of the applicable cure period. 2. A new Section 6.1(b)(xi) is hereby added as follows: The City agrees that in the event of termination of this Lease for any reason (other than a default by Lessee beyond the applicable cure period, for which Leasehold Mortgagee was provided notice and an opportunity to cure in accordance with this Article), that the City will enter into a new lease of the Subject Property with Leasehold Mortgagee for the remainder of the Lease Term, effective as of the date of such termination and with the same covenants, at the rent and upon the terms, provisions, covenants and agreements as herein contained except for any which have been satisfied by or on behalf of Lessee prior to termination, provided: (i) Leasehold Mortgagee, shall make written request upon the City for such new lease within sixty (60) days after the City Manager has given Leasehold Mortgagee notice of such termination. (ii) Said written request shall be accompanied by payment of all past due rents and other charges owing to the City hereunder of which Leasehold Mortgagee shall have been given notice, and, thereafter such monetary obligations shall be maintained current through the time of the execution and delivery of said new lease. Notwithstanding the foregoing, (a) the City agrees that, as a condition to the new lease, Leasehold Mortgagee shall be obligated to pay all amounts due under the Lease, except for such amounts that the City may have accelerated in connection with the termination of the Lease and (b) if, for any reason, the City is unable to provide the Leasehold Mortgagee with an accurate notice of all past due rents and other charges due to the City hereunder before the Leasehold Mortgagee makes a written request upon the City for such new lease, the Leasehold Mortgagee shall nevertheless continue to be obligated to pay all past due rents and other charges owing to the City hereunder, to the extent not paid at the time that the Leasehold Mortgagee requests the new lease, and will pay same to the City within fifteen (15) days after the City provides the Leasehold Mortgagee with notice of the same, which notice must be provided by the City to the Leasehold Mortgagee within not more than sixty (60) days after the execution of the new lease. (iii) The lessee under such new lease shall automatically have the same obligations, right, title and interest in and to the Subject Property and the Leasehold Improvements as Lessee had under the terminated Lease. (iv) The City's execution and delivery of such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including without limitation, any representation or warranty regarding title to the Subject Property or any Leasehold Improvements or the priority of such new lease (except for representations or warranties regarding title with respect to 02-1217 actions taken by the City during the period commencing on the date of termination of this Lease and existing on the date of execution of such new lease). (iv) The City's delivery of any Leasehold Improvements to Leasehold Mortgagee pursuant to such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied; and Leasehold Mortgagee shall take the Leasehold Improvements "as -is" in their then current condition. (v) Upon execution and delivery of such new lease, Leasehold Mortgagee shall be responsible for taking such action as may be necessary to remove Lessee named herein from the Project. The City agrees to cooperate with Leasehold Mortgagee in connection with the foregoing. (vi) The City's obligation to execute such new lease of the Subject Property with the Leasehold Mortgagee shall be conditioned upon Leasehold Mortgagee having remedied and cured all monetary defaults hereunder and having remedied or having commenced and diligently prosecuting the cure of all non -monetary defaults of Lessee susceptible to cure by any party other than by Lessee. The Leasehold Mortgagee shall pay all expenses, including reasonable attorneys' fees of outside counsel, if any, incident to the preparation, execution and delivery of such new lease. The City shall have the right to off -set any rents collected by the City under subleases of the Subject Property or the Leasehold Improvements during the interval following termination of this Lease and prior to the execution of the new lease against Leasehold Mortgagee's obligations hereunder, provided that the Leasehold Mortgagee receives credit therefor against any amount(s) due hereunder or in connection with the new lease. (vi) If the City receives written requests in accordance with the provisions of this Section from more than one Leasehold Mortgagee, the City shall deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most senior Leasehold Mortgage. If any Leasehold Mortgagee having the right to a new lease pursuant to this Section shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagees a period of sixty (60) days from such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Any new lease entered into pursuant to this Section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Subject Property and shall have the same relative priority in time and in right as this Lease and shall have the benefit of all of the right, title, powers and privileges and the encumbrances, duties and obligations, of Lessee hereunder in and to the Project. 02-1217 The intent of this provision is to place the Leasehold Mortgagee, in the event of a termination of this Lease under this Section, in the same position as if it had acquired Lessee's Leasehold Estate pursuant to a foreclosure action. So long as a Leasehold Mortgage is in existence, unless the holder of such Leasehold Mortgage consents in writing thereto, fee title to the Subject Property and Lessee's interest in this Lease shall not merge, notwithstanding the acquisition of fee title to the Subject Property and the Lessee's Leasehold Estate by Lessor or Lessee. 3. Lessor and Lessee acknowledge and agree that Paragraph 9(c) of Amendment No. 1 to the Lease, dated January 23, 2002 ("Amendment No. I"), contains a typographical error and that the reference therein should be to Section 8.3(g) instead of Section 8.3(f). Therefore, Paragraph 9(c) of Amendment No. 1 is hereby deleted in its entirety and substituted with the following: (c) A new Section 8.3(g) is hereby as added as follows: (g) Any Transfer pursuant to a private placement to an "accredited investor" as that term is defined in Regulation D of the Securities and Exchange Commission (17 CFR 230.501(a)). IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 to the Lease on the day and year first above written. ATTEST: Priscilla A. Thompson City Clerk Approved as to Form and Correctness: Alejandro Vilarello City Attorney LESSOR: City of Miami, a municipal corporation of the State of Florida wo Carlos A. Gimenez City Manager 02-1217 ATTEST: LESSEE: Grove Harbour Marina and Caribbean Marketplace, L.L.C., a Florida limited liability company By: By: Corporate Secretary Alan Lima, President Harbour Management Group Corp. WITNESSES: LIM IT -Grove Harbour -Lease Amend5-11-18-02 Robert Christoph Southern Cross Marinas, L.L.C. 02-121'7 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: The Honorable Mayor and Members of the City Commission FROM los A. enez City er RECOMMENDATION: CA -17 DATE: NOV — 8 22902 FILE : SUBJECT: Authorizing Execution of Amendment 2 to Grove Harbour Lease REFERENCES: ENCLOSURES: The administration recommends that the City Commission adopt the attached resolution authorizing the City Manager to execute Amendment No. 2, in substantially the attached form, to the lease agreement between the City of Miami and Grove Harbour Marina and Caribbean Marketplace ("Grove Harbour"). This amendment is for the purpose of adding subsection 6.1 (b) (x) to the Lease Agreement to provide that the City will enter into a new lease with the Leasehold Mortgagee, at the request of the Leaseholder Mortgagee, in the event the Lease is terminated for any reason and to correct a typographical error contained in Amendment No. 1. BACKGROUND: The City of Miami entered into •a lease with Grove Harbour Marina and Caribbean Marketplace, LLC ("Grove Harbour") dated March 12, 1999 (the "Lease"), for the leasing of approximately 6.95 acres of upland and 6.6 acres of submerged land in the Dinner Key area (the "Property"). In accordance with the Lease, Grove Harbour is required to comply with certain conditions precedent prior to taking possession of the Property. Among those conditions, Grove Harbour must submit to the City evidence of a firm financial commitment (s) from the bank (s) that will provide the financing for the construction of the leasehold improvements. Pursuant to the information provided by Grove Harbour to the City, Grove Harbour has obtained financial commitments from two sources: 1) Citrus Bank with a loan of $4,938,384 and 2) CIB Marine Capital, LLC. with a loan of $2,500,000 for a total commitment of $7,438,384. Citrus Bank has requested an amendment to the Grove Harbour Lease to include a provision that requires the City to provide a new lease to the Leasehold Mortgagee, at the request of the Leasehold Mortgagee, in the event the Lease is terminated for any reason. Financial impact: There is no negative financial impact to the City. O CAG ]Dfl�:eb:Cover Memo CC Amend 2 GH 02-121'7