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HomeMy WebLinkAboutexhibitThis instrument prepared by and after recording return to: Steven W. Zelkowitz, Esq. Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, P.A. 2665 South Bayshore Drive Suite 420 Miami, FL 33133 SECOND AMENDMENT TO TRI-PARTY AGREEMENT THIS SECOND AMENDMENT TO TRI-PARTY AGREEMENT (the "Second Amendment") is made and entered into as of the day of October, 2003, by and among MIAMI- DADE COUNTY, a political subdivision of the State of Florida (the "County"), the CITY OF MIAMI, a municipal corporation of the State of Florida (the "City"), and BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership ("Bayside"). RECITALa 1. The parties have previously executed a series of agreements as follows: (a) Agreement between the County, City and Bayside dated December 8,1997 which First Amendment was recorded in Official Records Book k7939, Page 1026 of the Public Records of Miami -Dade County, Florida (the "First Amendment"), (b) the Tri-Party Agreement between the County, City, and Bayside dated July 19, 1988, which agreement was recorded in Official Records Book 13849, Page 907 of the Public Records of Miami -Dade County, Florida (the "Tri-Party Agreement"), (c) the Garage Lease (as defined in Paragraph 17 of the Tri-Party Agreement) between the City and Bayside dated January 14, 1985, as amended, and (d) the Retail Lease (as defined in Paragraph 17 of the Tri- Party Agreement) between the City and Bayside dated October 15,1985, as amended. The foregoing agreements are hereinafter collectively referred to as the "Bayside Agreements." 2. As contemplated by the First Amendment, the City conveyed certain real property to the County as more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Property") after which Basketball Properties, Ltd., a Florida Limited Partnership ("BPL") constructed the American Airlines Arena and certain other improvements and amenities as part of a professional sports franchise facility to be developed on the Property pursuant to a series of agreements between the County and BPL. 3. The parties desire to modify and amend the terms and provisions of the Bayside Agreements, as hereinafter set forth. F:14750041Agreements\Redlined Second Amendment to Tri-Party Agreement 8-19-03 NOW, THEREFORE, for and in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledge, the County, the City and Bayside hereby agree as follows: 1. Incorporation of Recitals. The recitals and findings set forth in the preamble of this Second Amendment are true and correct and are hereby adopted by the reference thereto and incorporated herein as if fully set forth in this Section. 2. Defined Terms. All defined terms utilized herein but not defined in this Second Amendment shall have the meanings as ascribed to said terms in the Tri-Party Agreement and/or the First Amendment (collectively, the "Amended Tri-Party"), unless otherwise provided in this Amendment. 3. Amendment Controls. In the event of any conflict between the terms and conditions of this Second Amendment and the Amended Tri-Party, it is agreed that the terms and conditions of this Second Amendment shall control. 4. This Amendment. All references in this Second Amendment to the "Bayside Agreements" shall include this Second Amendment. 5. Pedestrian Bridge. 5.1 Release of Pedestrian Bridge Obligations. The terms and provisions of Section 9 of the First Amendment regarding the Pedestrian Bridge are hereby deleted in their entirety and the County, City, Bayside, and BPI, are hereby released from all rights and obligations thereunder. In furtherance of the foregoing, the County, City, and Bayside acknowledge and agree that neither the County, the City nor BPL shall have any liability or responsibility for the planning, design, construction, and operation of and the funding for the Pedestrian Bridge. 5.2 Release of Pedestrian Bridge Easement. 5.2.1 The Pedestrian Bridge Easement granted by the City to Bayside pursuant to Section 9.3 of the First Amendment is hereby released and of no further force and effect. 5.2.2 The easement granted by the City and Bayside to the County pursuant to Section 9.4 of the First Amendment for (a) construction and maintenance of the Pedestrian Bridge on Bayside Marketplace property, (b) pedestrian access and use of the Pedestrian Bridge between the Property and Bayside Marketplace and the landing of the Pedestrian Bridge on Bayside Marketplace, all at the location shown on Exhibit "F" to the First Amendment, is hereby released and of no further force and effect. 5.2.3 Exhibit "F" attached to the First Amendment setting forth the location of the Pedestrian Bridge Easement and the easement described in Section 9.4 of the First Amendment is hereby deleted. 2 5.3 Design Criteria. Exhibit "G" of the First Amendment setting forth the Design Criteria for the Pedestrian Bridge is hereby deleted in its entirety. 5.4 Application. It is the intention of the parties that the provisions of this Section 5 are applied in a manner as to exclude any liability and responsibility of the County, City, Bayside, and BPL with respect to the Pedestrian Bridge, and the preceding sentence shall not be construed to inadvertently change the definitions, terms, and conditions of the Bayside Agreement in a manner inconsistent with this stated intent. 6. Port Boulevard/Biscayne Boulevard Intersection. In connection with the existing grade level crossings between the Property and Bayside Marketplace at the Port Boulevard and Biscayne Boulevard intersection, within ninety (90) days of the date hereof, the County and City agree to use reasonable efforts (and cooperate with each other, to the extent permitted by law) to evaluate the need for additional pedestrian safety measures at said intersection. If recommended by said evaluation, within thirty (30) days following receipt of the evaluation, the City and the County agree to provide the Florida Department of Transportation ("FDOT") with a written request to implement the additional pedestrian safety measures recommended by the evaluations which may include the installation of multiple public safety devices at grade level crossings. Notwithstanding the foregoing, the implementation of the pedestrian safety measures including the installation of any public safety devices shall be made (x) in accordance with applicable law ,including FDOT requirements and (y) only if and when funding for such improvements is available from the FDOT, the County and/or City, it being understood that the County, the City, Bayside, and/or BPL shall not have any funding obligations for such improvements pursuant to this Second Amendment. Nothing contained in this Second Amendment shale be deemed or construed to expand the obligations of the County and/or City under applicable law with respect to the existing grade level crossings between the Property and Bayside Marketplace at the Port Boulevard and Biscayne Boulevard intersection. 7. Mutual Releases. 7.1 County Release of City. Bayside and BPL. As additional consideration for entering into and performing the terms and conditions of this Second Amendment, County hereby remises, releases, acquits, satisfies and forever discharges City, Bayside and BPL of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, attorneys' fees and costs, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever including, in law or in equity, which County ever had, now has, or can, shall or may have, against City, Bayside and/or BPL for, upon or by reason of any matter, cause or thing whatsoever arising, accruing or occurring prior to or after the date hereof in connection with, arising from, or related to the rights and obligations of the County set forth in Section 9 of the First Amendment including, without limitation, any payment obligations required by the Section 9 of the First Amendment in connection with the Pedestrian Bridge, but specifically excluding any and all claims in connection with, arising from, or related to any rights and obligations of City, Bayside and BPL set forth in this Amendment. The foregoing release shall survive the termination of the Bayside Agreements due to an uncured event of default or otherwise. 3 7.2 City Release of County. Bayside and BPL. As additional consideration for entering into and performing the terms and conditions of this Second Amendment, City hereby remises, releases, acquits, satisfies and forever discharges County, Bayside and BPL of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, attorneys' fees and costs, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever including, in law or in equity, which City ever had, now has, or can, shall or may have, against County, Bayside and/or BPL for, upon or by reason of any matter, cause or thing whatsoever arising, accruing or occurring prior to or after the date hereof in connection with, arising from, or related to the rights and obligations of the City set forth in Section 9 of the First Amendment including, without limitation, any payment obligations required by the Section 9 of the First Amendment in connection with the Pedestrian Bridge, but specifically excluding any and all claims in connection with, arising from, or related to any rights and obligations of County, Bayside and BPL set forth in this Amendment. The foregoing release shall survive the termination of the Bayside Agreements due to an uncured event of default or otherwise. 7.3 Bayside Release of County, City, and BPL. As additional consideration for entering into and performing the terms and conditions of this Second Amendment, Bayside hereby remises, releases, acquits, satisfies and forever discharges County, City and BPL of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, attorneys' fees and costs, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever including, in law or in equity, which Bayside ever had, now has, or can, shall or may have, against County, City d/or BPL for, upon or by reason of any matter, cause or thing whatsoever arising, accruing or occurring prior to or after the date hereof in connection with, arising from, or related to the rights and obligations of Bayside set forth in Section 9 of the First Amendment including, without limitation, any payment obligations required by the Section 9 of the First Amendment in connection with the Pedestrian Bridge, but specifically excluding any and all claims in connection with, arising from, or related to any rights and obligations of County, City and BPL set forth in this Amendment. The foregoing release shall survive the termination of the Bayside Agreements due to an uncured event of default or otherwise. 7.4 BPL Release of County, City; and Bayside. As additional consideration for entering into and performing the terms and conditions of this Second Amendment, BPL hereby remises, releases, acquits, satisfies and forever discharges County, City and Bayside of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, attorneys' feesand costs, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever including, in law or in equity, which BPL ever had, now has, or can, shall or may have, against County, City and/or Bayside for, upon or by reason of any matter, cause or thing whatsoever arising, accruing or occurring prior to or after the date hereof in connection with, arising from, or related to the rights and obligations of BPL: set forth in Section 9 of the First Amendment including, without limitation, any payment obligations required by the Section 9 of the First Amendment in connection with the Pedestrian Bridge, but specifically excluding any and all claims in connection with, arising from, or related to any rights and obligations of County, City and Bayside 4 set forth in this Amendment. The foregoing release shall survive the termination of the Bayside Agreements due to an uncured event of default or otherwise. 8. Property Development. The County, the City and Bayside hereby agree that the County and the City shall upon execution of this Second Amendment, jointly plan the development plans for the Property. 9. Ratification. Except as set forth in the Amendment, all other terms and provisions of the Bayside Agreements shall remain unmodified and in full force and effect and the parties hereby ratify all of the terms and conditions set forth in the Bayside Agreement. [THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK] 5 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the date first above written. Attestation: County: MIAMI-DADE COUNTY, a political subdivision of the State of Florida Harvey Ruvin, Clerk By: By: George M. Burgess, County Manager APPROVED AS TO LEGAL SUFFICIENCY BY THE OFFICE OF THE COUNTY ATTORNEY: By: CITY: Assistant County Attorney Attest: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO FORM AND CORRECTNESS By: Alejandro Vilarello, City Attorney BAYSIDE: BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership By: ROUSE-MIAMI, INC., Sole General Partner By: Name: Title: 6 STATE OF FLORIDA SS: COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged before me this day of September 2003, by Joe Arriola, as City Manager of the City of Miami, a Florida municipal corporation, on behalf of the City, who (check one) ❑ is personally known to me or ❑ has produced a Florida drivers license as identification. NOTARY PUBLIC, State of Florida My Commission Expires: Print Name: STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged before me this day of September 2003, by George M. Burgess, as County Manager of MIAMI-DADE COUNTY, on behalf of the County, who (check one) ❑ is personally known to me or ❑ has produced a Florida drivers license as identification. NOTARY PUBLIC, State of Florida My Commission Expires: Print Name: 7 STATE OF MARYLAND ) SS: COUNTY OF HOWARD ) The foregoing instrument was acknowledged before me this day of September 2003, by as of Rouse -Miami, Inc., as sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, on behalf of the Corporation and Limited Partnership, who (check one) ❑ is personally known to me or ❑ has produced as identification. My Commission Expires: Print Name: NOTARY PUBLIC, State of Maryland 8 Joinder ' Basketball Properties, Ltd., a Florida limited partnership, hereby joins in the execution of this Second Amendment for the purpose of agreeing to be bound by the terms and conditions of Sections 5 and 6 of this Second Amendment for the intents and purposes set forth therein. Attest: BASKETBALL PROPERTIES, LTD., a Florida limited partnership By: BASKETBALL PROPERTIES, INC., a Florida corporation, its general partner By: By: Secretary Name: Title: STATE OF FLORIDA SS: COUNTY OF MIAMI-DADE) The foregoing instrument was acknowledged before me this day of September 2003, by as ofBasketball Properties, Inc., as general partner of BASKETBALL PROPERTIES, LTD., on behalf of the Corporation and Limited Partnership, who (check one) ❑ is personally known to me or ❑ has produced as identification. My Commission Expires: Print Name: NOTARY PUBLIC, State of Florida 9 EXHIBIT "A" THE PROPERTY Tracts "A," "B" and "C" of MARITIME ARENA, according to the Plat thereof recorded in Plat Book 154, Page 37 of the Public Records of Miami -Dade County, Florida. F:14750041Agreemenls\Redlined Second Amendment to Tri-Party Agreement 8-19-03