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Home My WebLink AboutR-09-0595Vop City of Miami '"* Legislation < U R �O Resolution: R-09-0595 File Number: 09-01431 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Final Action Date: 12/17/2009 A RESOLUTION OF THE MIAMI CITY COMMISSION AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY ATTORNEY TO TAKE ALL NECESSARY AND APPROPRIATE ACTIONS IN ORDER (1) TO REQUEST THE ESCROWED FUNDS TO BE PAID PROMPTLY TO THE CITY OF MIAMI ("CITY") UNDER THE ESCROW AGREEMENT, DATED SEPTEMBER 27, 2005 ("ESCROW AGREEMENT") WITH FLAGSTONE ISLAND GARDENS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, AS SUCCESSOR BY MERGER TO FLAGSTONE PROPERTIES LLC, AS DEVELOPER (COLLECTIVELY, "FLAGSTONE") AND SHUTTS & BOWEN, LLP ("ESCROW AGENT"), (2) TO TERMINATE THE AGREEMENT TO ENTER INTO GROUND LEASE, DATED JANUARY 1, 2003, INCLUDING ALL EXHIBITS AND AGREEMENTS ATTACHED THERETO, AS SUBSEQUENTLY AMENDED (COLLECTIVELY, THE "AGREEMENT TO ENTER") WITH FLAGSTONE FOR THE MEGA YACHT MARINAAND MIXED USE WATERFRONT DEVELOPMENT PROJECT ON WATSON ISLAND (THE "PROJECT"), (3) TO TERMINATE AS NECESSARY ALL EASEMENTS GRANTED TO FLAGSTONE AND ALL OTHER AGREEMENTS WITH FLAGSTONE, (4) TO RETURN TO AND OBTAIN FOR THE CITY, ALL RIGHTS IN THE PROJECT, THE PROPERTY, THE ESCROWED FUNDS, AND THE RELATED PERMITS, GOVERNMENTAL APPROVALS, DOCUMENTS, INSTRUMENTS AND AGREEMENTS, AND (5) TO PROTECT THE CITY'S INTERESTS AND RIGHTS IN THE PROPERTY AND THE PROJECT. WHEREAS, the City of Miami ("City") is the owner of certain real property located on Watson Island, Miami, Florida (the "Property"); and WHEREAS, pursuant to the processes for the City's Mega Yacht Marina and Mixed Use Waterfront Development Request for Proposal and all addenda thereto (collectively, the "RFP"), for development on the Property of a mega -yacht marina and related and other upland facilities (the "Project") Flagstone Properties, LLC submitted a proposal and was selected as the most qualified responsive and responsible bidder; and WHEREAS, the City Commission, pursuant to Resolution No. 01-972, adopted September 17, 2001, and Resolution No. 01-1028, adopted September 25, 2001, polled the electors of the City of Miami regarding leasing the Property to Flagstone Properties, LLC for the Project and pursuant to Referendum on November 6, 2001 (the "Referendum") the voters returned an affirmative vote; and WHEREAS, Flagstone Properties LLC subsequently merged with Flagstone Island Gardens, LLC, a Delaware limited liability company (collectively, "Flagstone"), and pursuant to City Commission Resolution No. 02-1304, adopted on December 12, 2002, the City and Flagstone entered into an Agreement to Enter Into Ground Lease, dated January 1, 2003 (which agreement as subsequently amended including all exhibits and attachments thereto including the form of proposed Ground Lease City of Miand Page I of 3 File Id. 09-01431 (Version: 1) Printed On: 7/12/2017 File Number: 09-01431 Enactment Number: R-09-0595 (the "Ground Lease") is referred to collectively hereinafter as the "Agreement to Enter"); and WHEREAS, the Agreement to Enter has certain conditions that must be met prior to the execution of the Ground Lease with Flagstone, including depositing security deposits of five hundred thousand dollars ($500,000) as escrowed funds (the "Escrowed Funds") pursuant to the Escrow Agreement, dated September 27, 2005 (the "Escrow Agreement") by and among the City, Flagstone, and Shutts & Bowen, LLP as escrow agent (the "Escrow Agent"); and WHEREAS, the Agreement to Enter has been amended by that certain First Amendment to the Agreement to Enter Into Ground Lease and Amendment to Form of Ground Lease dated December 12, 2004 (the "First Amendment To Agreement To Enter"), that certain Second Amendment to Enter Into Ground Lease dated December 8, 2006 (the "Second Amendment to Agreement to Enter"), that certain Third Amendment to the Agreement to Enter Into Ground Lease and Amendment to Form of Ground Lease dated July 30, 2008 (the "Third Amendment to Agreement to Enter"); and WHEREAS, the Agreement to Enter requires Flagstone to discharge or transfer to bond any and all liens filed upon the Property, or any part thereof, within forty-five (45) days after notice of the filing thereof; and WHEREAS, liens have been filed upon the Property beginning January 22, 2009, in the approximate amount of two million, one hundred and thirty-seven thousand dollars ($2,137,000), which liens have not been discharged or bonded by Flagstone, despite repeated notices and demands given by the City in accordance with the Agreement to Enter; and WHEREAS, pursuant to the Third Amendment and in consideration for the City extending the Lease Deadline (as defined in Section 6.2 of the Agreement to Enter) to February 1, 2010, Flagstone agreed to pay to the City beginning August 1, 2009, the monthly sum of eighty-three thousand dollars ($83,000); and WHEREAS, as of the date hereof Flagstone has not paid the City for August, September, October, November, and December payments totaling four hundred and fifteen thousand dollars ($415,000); and WHEREAS, based upon Flagstone's lack of performance, continued failures to discharge or transfer to bond the liens against the Property, and continued defaults in payments to the City, it is in the best interest of the City to take all necessary and appropriate actions in order (1) to request the Escrowed Funds to be paid promptly to the City under the Escrow Agreement, (2) to terminate the Agreement to Enter, (3) to terminate as necessary all easements granted to Flagstone and all other agreements with Flagstone, (4) to return to and obtain for the City, all rights in the Project, the Property, and the related permits, governmental approvals, documents, instruments and agreements, and (5) to protect the City's interests and rights in the Property and the Project; 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. City of Miand Page 2 of 3 File Id. 09-01431 (Version: 1) Printed On: 7/12/2017 File Number: 09-01431 Enactment Number: R-09-0595 Section 2. The City Manager and the City Attorney are authorized{1 } and directed to take all necessary and appropriate actions in order (1) to request the Escrowed Funds to be paid promptly to the City under the Escrow Agreement, (2) to terminate the Agreement to Enter, (3) to terminate as necessary all easements granted to Flagstone and all other agreements with Flagstone, (4) to return to and obtain for the City, all rights in the Project, the Property, and the related permits, governmental approvals, documents, instruments and agreements, and (5) to protect the City's interests and rights in the Property and the Project. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2} Footnotes: {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. {2} 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. City of Miami Page 3 of 3 File Id. 09-01431 (Version: 1) Printed On: 7/12/2017