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Home My WebLink AboutexhibitFIRST AMENDMENT TO AGREEMENT TO ENTER INTO GROUND LEASE AND AMENDMENT TO FORM OF GROUND LEASE THIS FIRST AMENDMENT TO AGREEMENT TO ENTER INTO GROUND LEASE AND AMENDMENT TO FORM OF GROUND LEASE ("First Amendment to Agreement to Enter") is made as of _, 2004 by and between THE CITY OF MIAMI, a municipal corporation of the State of Florida ("Cy"), and FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, f/k/a and successor by merger to Flagstone Properties, LLC, a Florida limited liability company ("Flagstone"). RECITALS A. City and Flagstone heretofore entered into that certain Agreement to Enter into Ground Lease dated January 1, 2003 (the "Agreement to Enter"). B. City and Flagstone agreed upon and attached a number of exhibits to the Agreement to Enter, including but not limited to, the Ground Lease attached thereto as Exhibit "C" (the "Ground Lease"). C. City and Flagstone desire to amend certain provisions of the Agreement to Enter pursuant to this First Amendment to Agreement to Enter. NOW, THEREFORE, in consideration of Ten and Nol100 Dollars and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, City and Flagstone agree as follows: AGREEMENTS 1. Recitals. The foregoing recitals are true and correct and are incorporated herein as if set out in full in the body of this First Amendment to Agreement to Enter. 2. Defined Terms. All capitalized terms used but not defined in this First Amendment to Agreement to Enter shall have the meanings ascribed to them in the Agreement to Enter. 3. Amendments to Agreement to Enter. The Agreement to Enter is hereby amended as follows: Changes to Dates In Agreement to Enter. Except for the outside date specified in Section 6.2.3 of the Agreement to Enter (the "Outside Date"), all of the deadline dates in the Agreement to Enter, whether applicable to City or to Flagstone, are hereby extended for eighteen (18) months from the date actually set forth in the Agreement to Enter. To effectuate the foregoing, when calculating deadline dates other than the Outside Date, the parties shall use January 1, 2004 (rather than January 1, 2003) as the Effective Date of the Agreement to Enter. The parties acknowledge and agree that the Outside Date referred to in Section 6,2.3 shall be deemed to be January 1, 2007. Changes tQ Form of Ground Lease. The form of the Ground Lease attached to the Agreement to Enter as Exhibit "C" is hereby revised as follows and such changes shall be incorporated into the final form of the Ground Lease at the time of its mutual execution and delivery pursuant to the terms of the Agreement to Enter: Section 1.5(dj(dl. At Section 1.5(d)(d) of the Ground Lease, the definition of Hotel A shall now read as follows: "Hotel A" shall mean a hotel which: (I) shall have the number of units specified in Exhibit E; (ii) may have (in addition to those units described in clause (i) above) units allocated to Approved Time Share Licenses as 10.12_11_3AIApOCS_655594 €r:B.DOC Hotel Units Ar\ A # /r)!-lnt} 77P specified in Exhibit E; (iii) shall be built to, and operated pursuant to, the standards of a four (4) diamond hotel or better (as defined in the AAA's hotel rating standards); and (iv) shall participate in a franchise system of a national or international hotel brand approved by the Chief Executive Officer pursuant to Section 4.4. For purposes of the foregoing, the Parties understand and agree that the term "units" does not include, and Hotel A may have, associated facilities and amenities, including, but not necessarily limited to: (A) spa and fitness areas; (B) administrative and office areas; (C) cabanas; (D) lounges; (D) conference and banquet facilities; (E) customary non -lodging facilities available for seasonal use by Marina staff and employees; and (F) Hotel Retail Operations. Section 1.5(e)(e). At Section 1.5(ee) of the Ground Lease, the definition of Hotel B shall now read as follows: "Hotel B" shall mean a hotel which: (i) shall have the number of units specified in Exhibit E; (ii) may have (in addition to those units described in clause (i) above) units allocated to Approved Time Share Licenses as specified in Exhibit E; (iii) shall be built to, and operated pursuant to, the standards of a four (4) diamond hotel or better (as defined in the AAA's hotel rating standards); and (iv) shall participate in a franchise system of a national or international hotel brand approved by the Chief Executive Officer pursuant to Section 4.4. For purposes of the foregoing, the Parties understand and agree that the term "units" does not include, and Hotel A may have, associated facilities and amenities, including, but not necessarily limited to: (A) spa and fitness areas; (B) administrative and office areas; (C) cabanas; (D) lounges; (D) conference and banquet facilities; (E) customary non -lodging facilities available for seasonal use by Marina staff and employees; and (F) Hotel Retail Operations. Paragraph 11 of Exhibit E of the Gsopnd Lease. At Paragraph II of Exhibit E of the Ground Lease, Paragraph II shall now read as follows: "II. Number of Hotel Units. 1. For purposes hereof: (i) the term "Time Share Units"shall mean those units in either or both Hotels which are allocated for Approved Time Share Licenses; (ii) the term "Time Share Users"shall mean any person having an interest in any particular Approved Time Share License, or in any entity holding a particular Approved Time Share License; and (iii) the term "Sharing Arrangements" shall mean sharing arrangements entered into by Time Share Users so as to permit the shared usage of any Time Share Unit pursuant to any Approved Time Share License. 2. The total number of units in both Hotels (other than Time Share Units) shall not exceed 500 in the aggregate. The plans submitted with the application for the Major Special Use Permit issued in connection with the Project show 120 units in Hotel A and 380 units in Hotel B (other than Time Share Units). If such total number of units in each Hotel (other than Time Share Units) is changed, and such change results in a substantial modification under the Major Use Special Permit, such change shall be subject to the approval of the Chief Executive Officer in accordance with the Chief Executive Officer Approval Procedures. 655594-€a 3. Lessee may, but shall not be obligated to have Time Share Units. The Time Share Units shall be in addition to those units described in Paragraph II. 2 above. The total number of Time Share Units in both Hotels shall not exceed 105 in the aggregate. Subject to the foregoing maximum amount for both Hotels combined, Lessee shall have the right to determine the number of Time Share Units in each Hotel, and shall have the right, if it so elects, to have all the Time Share Units in one Hotel and no Time Share Units in the other Hotel. 4. Each Time Share Unit shall be limited to a specified number of Approved Time Share Licenses as determined by Lessee. The Approved Time Share Licenses shall not be for overlapping periods of time (i.e., for any particular interval of time, there shall be only one Approved Time Share License issued as to any particular Time Share Unit). Furthermore, no "locked off' portions of the Time Share Units will be permitted to be separately conveyed or rented out, and each Approved Time Share License shall be for the entire applicable Time Share Unit; provided, however, that Time Share Users shall be permitted to enter into Sharing Arrangements. By way of example, if a particular Time Share Unit has a foyer and two wings, and certain Time Share Users want to use the Time Share Unit on the same weekend, they may enter into a Sharing Arrangement to allow some of the Time Share Users to use one wing while the other Time Share Users use the other wing. 5. It is recognized that cabana, spa and fitness and other Hotel facilities and amenities may or may not be located within the structure of the Hotels. " 4. Ratification. City and Flagstone hereby ratify and confirm the Agreement to Enter and acknowledge and agree that the Agreement to Enter remains in full force and effect without modification, except as specifically set forth in this First Amendment to Agreement to Enter, and without default by either party. 5. Headings. The captions and headings contained in this First Amendment to Agreement to Enter are for convenience of reference only and shall not affect the construction of interpretation of this First Amendment to Agreement to Enter. 6. Amendments. No amendment of any provision of this First Amendment to Agreement to Enter or the Agreement to Enter shall in any event be effective unless it is in writing and signed by party against whom enforcement is sought. 7. Severabillty. Any provision of this First Amendment to Agreement to Enter which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision beyond such extent or in any other jurisdiction. It is the intention of the parties to this First Amendment to Agreement to Enter that if any provision of this First Amendment to Agreement to Enter is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, the provision shall have the meaning which renders it valid. 6. Binding Effect: Assignments. This First Amendment to Agreement to Enter shall be binding upon and inure to the benefit of City and Flagstone and their respective successors and permitted assigns. 655594-5$ 9. Governing Law. This First Amendment to Agreement to Enter shall be governed by, and construed in accordance with, the laws of the State of Florida, without application of its conflict of law principles. 10. Entire Agreement to Enter. The Agreement to Enter, as amended by this First Amendment to Agreement to Enter, together with all easement agreements, license agreements and Subordination, Non -Disturbance and Attornment Agreements executed or to be executed in connection therewith or otherwise contemplated thereby, embody and constitute the entire understanding between City and Flagstone, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, with respect thereto are merged therein. 11. Counterparts. This First Amendment to Agreement to Enter may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any party hereto may execute this First Amendment to Agreement to Enter by signing any such counterpart. 655594-a$ IN WITNESS WHEREOF, City and Flagstone have executed this First Amendment to Agreement to Enter into Ground Lease as of the date set forth above. THE CITY OF MIAMI, a municipal corporation of the State of Florida Attest: By: Name: Name: Title: Title: Date: APPROVED AS TO FORM: By: Name: Title: FLAGSTONE ISLAND GARDENS LLC, a Delaware limited liability company By: Flagstone Miami Holdings, LLC, a Delaware limited liability company, as its sole and managing member By: Flagstone Property Group, LLC, a Delaware limited liability company, as its sole and managing member By: Name: Mehmet Bayraktar Title: Sole and Managing Member Date: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 2004, by Mehmet Bayraktar, as the Sole and Managing Member of Flagstone Property Group, LLC, a Delaware limited liability company, as the Sole and Managing Member of Flagstone Miami Holdings, LLC, a Delaware limited liability company, as the Sole and Managing Member of Flagstone Island Gardens, LLC, a Delaware limited liability company, on behalf of the companies. Personally Known or Produced Identification Type of Identification Produced Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires 655594-a$