HomeMy WebLinkAboutR-90-0140J-90-124
1/31/90
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE
CITY MANAGER TO EXECUTE A CONSENT, IN A FORM
ACCEPTABLE TO THE CITY ATTORNEY, FOR A
COLLATERAL ASSIGNMENT OF THE CONCESSION
AGREEMENT FROM TERREMARK AT DINNER KEY, INC.
TO FLORIDA INTERNATIONAL BANK, DATED
SEPTEMBER 25, 1979, AS AMENDED ON NOVEMBER
26, 1986 AND ON OCTOBER 31, 1989 AND WHICH
REQUIRES CITY APPROVAL OF ANY ASSIGNMENT OF
THE SAID CONCESSION AGREEMENT; SAID
ASSIGNMENT WILL ENABLE TERREMARK TO OBTAIN
WORKING CAPITAL TO FINANCE IMPROVEMENTS
PERFORMED AT THE HAVANA CLIPPER RESTAURANT IN
THE COCONUT GROVE EXHIBITION CENTER.
WHEREAS, the City of Miami leased certain City -owned real
estate to Terremark at Dinner Key, Inc. pursuant to an agreement
dated September 25, 1979 as amended on November 26, 1986 and
October 31, 1989; and
WHEREAS, the said Concession Agreement and subsequent
amendments are expected to be in full force until their
expiration on September 30, 2004; and
WHEREAS, Terremark at Dinner Key, Inc. has secured a
commitment from Florida International Bank for a loan for working
capital to finance improvements performed at the Havana Clipper
Restaurant and Coconut Grove Exhibition Center; and
WHEREAS, Florida International Bank has required a
Collateral Assignment of the Concession Agreement as a condition
to making the loan; and
WHEREAS, pursuant to Section 31 of the Concession Agreement
dated September 25, 1979, Terremark at Dinner Key, Inc. is
required to obtain City approval for assignment of the Concession
Agreement;
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 hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
CITY COMMISSION
MEETING OF
FEB 15 1990
Section 2. The City Manager is hereby authorized to execute
a Consent I) in a form acceptable to the City Attorney, for
Terremark at Dinner Key, Inc.'s Collateral Assignment of the
Concession Agreement as required by Florida International Bank.
Section 3. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 15th day of February , 1990.
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ATTEST:
A� �-6�
MATT IRAI, CITY CLERK
PREPARED AND -APPROVED BY:
aM RO JV I LARELLO
EF ASSISTANT CITY ATTORNEY
APPROVED AS TO FORM AND
CORRECTNESS:
vvc a u. + �uiw
CI ATTORNEY
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.
s
- � or'd 1Q
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO Honorable Mayor.and Members
of the.City Commission
"0" Cesar H. Odi
City Manager
DATE JA N 3 01990 FILE
SU9JECT Resolution Authorizing
Consent for.Collateral
Assignment of Rights
& Concession Agreement
REFERENCES
ENCLOSURES :
it is respectfully recommended that Torre mark at Dinner Rey, Inc.
(Terremark) be granted the consent requested in order to assign
its rights under that Concession, Agreement, dated September 25,
1979 to Florida international Bank. It is .further recommended
that the City !Manager be allowed to execute a Consent to
Collateral Aanignment of. Rights and Concession Agreement
acceptable to the City Attorney, as required by Florida
International Bank.
BACKGROUND
The General Services Administration Department has reviewed a
request from Terremark to be allowed to execute a Consent to
Collateral Assignment of the Rights and Concession Agreement for
the leased space for the Havana Clipper Restaurant as required by
their lender, Florida International Bank. On September 25, 1979,
the City of Miami entered into 'a' Restaurant and Concession
Agreement for Coconut Grove Exhibition Center, as amended on '~
November 26, 1986, and on October 31, 1989 for a restaurant and
concession operation, on certain City owned real estate. The
expiration.of this agreement is September 30, 2004.
Terremark in' seeking a loan from Florida International Bank
(Bank) for working capital to finance improvements performed at
the Hawam Clipper Restaurant and Coconut Grove Exhibition
Center. They Bank has extended a commitment for the financing to
Terremark but has required an assignment as a condition to making
the loan. ,
Section 31. Extension, Assi nment, or Transfer of Stock of the
the agreement tween t e= C taTorrearex City
approval for assignment of the Concession Agreesment.
Terremark has been an outstanding tenant of the City. Compliance
with the terms and conditions of the Concession Agreement has
been optimal. Business development and thus revenues to the City
have been impressive.
cc: Attachments
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C O N S E N T G
The undersigned Owner hereby consents to the foregoing
Assignment and to each and all of the terms and conditions
thereof and agrees that upon notice from Lender that Borrower is
:n default in any of its covenants, agreements or obligations
contained in the Loan Agreement, the Loan Documents or in ar:y
document or instrument delivered pursuant to or in connection
c•:ith the Loan Agreement, a:: rights under the Concession
Acreement otherwise exercisable by Borrower, including without
:imitation the right to operate the Restaurant and the right to
reimbursement of unamortized capital investment under Section 32
of the Concession Agreement, may be exercised by Lender. The
undersigned further agrees:
A. To give prompt written notice to Lender 'oE any
default by Borrower under the Concession Agreement and to
permit Lender, at its option, to cure any said default of
Borrower within such time periods as may be reasonably
necessary therefor;
B. in the event of any default by Borrower as afore-
said, Lender is authorized to exercise all of its rights.
under the Concession Agreement without additional cost or
expense, except as set forth in the Concession. Agreement;
C. Not to undertake any act which according to the
terms of the foregoing Assignment may not be undertaken by
Borrower unless the prior written consent of Lender shall
have Eirst been secured;
. D. That the lien in favor of Owner created under
Section 12 of the Concession Agreement is hereby
subordinated in all respects to Lender's security interest,
as created in the Loan Documents; and
E. That the agreements of the undersigned under this
Consent shall, be binding upon the undersigned and its suc-
cessors and assigns and shall inure to the benefit of Lender
and its success<ors and assigns.
Dated: January _, 1990
.Attest;
Matty Hirai
City Clerk
City of Miami, a municipal
corporation of the State of
Florida
Cesar H. Odio, City Manager
Approved as to Form and
Correctness:
Jorge L. Fernan ez
City Attorney
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COLLATERAL ASSIGNMENT OF RIGHTS AND CONCESSION AGREEMENT
This Assignment, dated January _, 1990, is from TERREMARK
AT DINNER KEY, INC., a Florida corporation, with an address at
2600 S.W. 3rd Avenue, Miami, Florida 33129 (the "Borrower") to
FLORIDA INTERNATIONAL BANK, a stateAbgnkipS cor orat'on, whose
address is 17945 Franjo Road, Perrine, Florida 33157 ("Lender").
RECITALS
A. ;Lender is making a U.S. $1,000,000.00 loan (the "Loan")
to Borrower for working capital to be used in the operation of
the Havana Clipper restaurant (the "Restaurant") in Alkiiamir
Florida. The Loan is made pursuant to that certain Loan
Agreement of even date herewith executed by Borrower and Lender
(the "Loan Agreement") and is evidenced by that certain Pro-
missory Note of even date herewith made by Borrower in favor of
Lender in the principal sum of U.S. $1,000,000.00 (the "Mote").
The Note, the Loan Agreement and all other documents described in
or referred to by the Loan Agreement, or which evidence or secure
the Loan are hereinafter together called the "Loan Documents."
B. Pursuant to that certain Restaurant and Concession
Agreemle nt for Coconut Grove Exhibition Center, dated Septem-
ber 25, 1979, as amended on November 26, 1986, and on October 31,
1989, a true and complete copy of which has been delivered .o
Lender (the "Concession Agreement"), the City of Miami, as Owner
("Owner"), and Jerry's, Inc. (subsequently assigned to Borrower),
as Concessionaire, Borrower operates the Restaurant.
C.. Lender has required this Assignment as a condition to
making the Loan.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, receipt and sufficiency of
uh:ch is hereby acknowledged, and as additional security for the
performance of the obligations incurred pursuant to the Loan
Documents, Borrower hereby grants a security interest in, and
transfers and assigns to, Lender, its successors and assigns, all
of- t..he right, title and interest of. Borrower in and, to the
:ollowing rights (the "Assigned Rights"):'
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(i) the Borrower's rights (but not its obligations)
under the Concession Agreement, including without limitation the
r'.ght to reimbursement of Borrower's unamortized capital
investment under Section 32 of the Concession Agreement;
( ii ) all contracts and agreements affecting the
Restaurant and the operation thereof, including specifically, but
c�'thout -imitation, all service contracts, maintenance agree-
ments, advertising contracts and equipment leases;
(iii) all warranties and guarantees given, made or
issued by any contractors, subcontractors, suppliers, manufac-
t::rers, installers and the like relating to the development or
the construction of the improvements on the property covered by
the Concession Agreement (or the acquisition of any personal
property), including, without limitation, those with respect to
workmanship, materials, components, appliances and equipment
forming a part of or installed or included within or upon, the
Property to the full extent that such warranties and guarantees
have not expired;
(iv) all construction plans and specifications,
engineering drawings and prints, test and inspection reports and
the like;
(v) all licenses, permits and authorizations affecting
the operation of the Restaurant, including without limitation,
all certificates of occupancy and the like; and
In furtherance of this Assignment, Borrower agrees as
follows:
1. Borrower represents and warrants that it has good title
to each of the Assigned Rights, that its interest in the Assigned
Rights is not subject to any claim, set-off, lien or encumbrance
OF any kind or nature, except for purchase money liens, if any,
on the equipment, that the Assigned Rights are in full force and
effect and have not been amended or modified in any way, and that
the Assigned Rights are intended to represent all of the
Borrower's rights and interests with respect to the Concession
Agreement and the Restaurant and its use (excepting only st%ch
sights and i.^.terests which are separately assigned, mortgaged or
trade subject to a security interest in favor of Lender)? and the
the enuneration of particular rights or interests of Borrower
herein shall not be deemed to exclude any other such rights or
interests from the operation of this Assignment.,*
2. Neither this Assignment nor any action or actions on
the part of Lender shall constitute an assumption of any of the
obligations of Borrower by Lender under any of the Assigned
R:q::ts anal Borrower shall continue to be liable for all obliga-
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r,_ons thereunder. Borrower does hereby ,agree to protect, defend,
'inderr.nify and hold Lender harmless from and against any and all
:.oss, cast, liability or expense (including, but not limited to,
attorneys' fees and expenses) resulting from any failure of 3or;-
r-,,.;er to perform and observe at the time and in the ma:vner
therein provided, each of the covenants, agreements and obliga-
tions of Borrower contained in the Assigned Rights.
3. Lender shall have the right at any time (but shall have
no obligation) to take .in its name or in the name of Borrower or
otherwise, such action as Lender may at any time or from time to
time reasonably determine to be necessary to cure any default of
Borrower under any of the Assigned Flights and to protect the
r:gnts of Lender as the assignee of Borrower thereunder. Lender
shall incur no lability on account of any action taken by it or
its behalf in good faith pursuant to the foregoing sentence or
:therwise hereunder, whether or not the same shall prove to be
lrcproper, inadequate or invalid, in whole or in part, and Bor-
rower agrees to protect, deferd, indemnify and hold Lender harm-
less from and against any and all loss, cost, liability or
expense (including, but not limited to, attorneys' fees and
expenses) in connection with any such action or actions, except
..or such :oss, cost, liability or expense occasioned by Lender's
gross negligence.
4. Borrower hereby irrevocably constitutes and appoints
Tender its true and lawful attorney -in -fact in Borrower's name or
in Lender's name, or otherwise, to enforce all rights of Borrower
under any of the Assigned Rights and such power of attorney,
being coupled with an interest, is irrevocable.
S. Borrower hereby covenants and agrees:
(a) ro faithfully abide by, perform and discharge each
and every obligation, covenant and agreement of Borrower con-
tained in the Assigned Rights; to give prompt notice to Lender of
any notice of default on the part of Borrower with respect to the
ob:.igaions, covenants or agreements of Borrower contained in the
Assicned Rights, together with an accurate and complete copy of
such notice; and, at the sole cost and expense of Borrower, to
the performance of each and every obligation,
enforce ;r secure
covenant, c;ondit:on and agreement on the part of each obligor to
be kept or performed under the Assigned Rights; and
(b) Noz to, without the prior written consent of Len
--
der: W materially mcdif► or amend, or in any way materially
change any o. the Assigned Rights; or (ii) tender or accept a
surrender or cancellation of any of the Assigned Rights, unless
suc., rights shall be immediately replaced by substantially
..
a�.a,_a. "ghts.
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5. Upon the payment in full of the obligations of Borrower
to Lender arising under the Loam Agreement and -the Loan Docu-
ments, this Assignment and the power of attorney set forth above
snail terminate and become null and void. So long as a,�Event, g
p` '• in the n A regime t, has not occurred with
respect to the due, prompt and complete observance and
performance of each and every covenant, agreement and Gbiigation
of Borrower contained in the Loan Agreement or in any document or
instrument referred to therein, Borrower may, except as herein
restricted or provided otherwise, continue to receive and exer-
cise all of the rights, benefits and privileges under the
Assigned Rights.
IN WT:NESS WHEREOF, Borrower has executed this Assignment
the date first set forth above.
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TERREMMK AT DINNER KEY, INC., a
Florida corporation,
J
By:
Y 4 -
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