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HomeMy WebLinkAboutexhibitTHIRD AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND BAYSHORE LANDING, LLC This Third Amendment to Lease Agreement (this "Amendment") is entered into this day of , 2004, by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), and Bayshore Landing, LLC (assignee of Grove Marina Market, Ltd., the "Company") for the purpose of amending that certain Lease Agreement between the City and the Company dated September 20, 1985, as amended by: (1) that certain Memorandum of Understanding dated August 30, 1991, (2) that certain Memorandum of Understanding dated September 10, 1993, (3) that certain Amendment to Lease Agreement dated November 14, 2001, and (4) that certain Second Amendment to Lease Agreement dated August 20, 2004 (the Lease Agreement dated September 20, 1985, the Memorandum of Understanding dated August 30, 1991, the Memorandum of Understanding dated September 10, 1993, the Amendment to Lease Agreement dated November 14, 2001, and the Second Amendment to Lease Agreement dated August 20, 2004 are hereinafter collectively referred to as the "Lease Agreement"). WHEREAS, pursuant to the Lease Agreement, the City leased to Bayshore Properties, Inc. certain property located at approximately 2550 South Bayshore Drive, Miami, Florida (the "Property" ), commencing September 30, 1985 and expiring on May 31, 2035; and WHEREAS, pursuant to an Assignment of Lease dated March 16, 1986, Bayshore Properties, Inc. assigned its rights to the Lease Agreement to Grove Marina Market, Ltd., which on August 20, 2004 further assigned its rights in and to the Lease Agreement to Bayshore Landing LLC; and WHEREAS, the aforesaid assignments were consented to by the City by virtue of certain Consents to Assignment dated March 13, 1986 and August 20, 2004; and WHEREAS, the City and the Company have agreed to amend the Lease Agreement to add certain provisions to protect the Leasehold Mortgagee; 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: 174183120912\ # 686822 v 4 1. Incorporation of Recitals: The recitals and findings set forth above are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Amendment. 2. Amendment Effective Date: The effective date of this Amendment shall be the date upon which it is executed by the City Manager and attested to by the City Clerk (the "Amendment Effective Date"). 3. A new Section 30.3 is hereby added to the Lease Agreement to read as follows: The City agrees that in the event of termination of this Lease Agreement in any proceeding in bankruptcy involving the Company, the City will enter into a new lease of the Property with Leasehold Mortgagee for the remainder of the Term hereof, 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 the Company prior to termination, provided the actions of the Leasehold Mortgagee have not adversely affected the interests of the City under this Lease Agreement or otherwise resulted in the termination of this Lease Agreement, and, also 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 written 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 written notice in accordance with Section 30.2, 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 this Lease Agreement, except for such amounts that the City may have accelerated in connection with the termination of this Lease Agreement and (b) if, for any reason, the City is unable to provide the Leasehold Mortgagee with an accurate written 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 written notice of the same, which written notice must be provided by the City to the Leasehold Mortgagee not more than sixty (60) days after the execution of the new lease. (iii) The Leasehold Mortgagee, as lessee under such new lease, shall automatically have the same obligations, rights, title and interest in and to the Property and the 2 17418312091214 686822 v 4 leasehold improvements as the Company had under the terminated Lease Agreement. (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 Property or any leasehold improvements or the priority of such new lease (except for representations or warranties regarding title with respect to actions taken by the City during the period commencing on the date of termination of this Lease Agreement and existing on the date of execution of such new lease). (v) 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. (vi) Upon execution and delivery of such new lease, Leasehold Mortgagee shall be responsible for taking such action as may be necessary to remove the Company from the Project. The City agrees to cooperate with Leasehold Mortgagee in connection with the foregoing. (vii) The City's obligation to execute such new lease of the 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 the Company susceptible to cure by any party other than by the Company. 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 Property or the leasehold improvements during the interval following termination of this Lease Agreement 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. (viii) Within six (6) months of the date that it takes possession of the Property, the Leasehold Mortgagee shall employ an Acceptable Operator, subject to the approval of the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed, for the continued operation of the Property and leasehold improvements, under the terms, conditions, provisions, covenants and agreements of this Lease. 3 1741831209121 # 686822 v 4 The intent of this provision is to place the Leasehold Mortgagee, in the event of a termination of this Lease Agreement under this Section 30.3, in the same position as if it had acquired the Company'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 Property and the Company's interest in this Lease Agreement shall not merge, notwithstanding the acquisition of fee title to the Property and the Leasehold Estate by the City or the Company. 4. No Implied Modifications: Except as specifically provided herein, all of the terms and provision of the Lease Agreement shall remain in effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the Lease Agreement on the day and year first above written. 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: Jorge L. Fernandez, City Attorney Approved As To Insurance Requirements: Dania Carrillo, Risk Manager 4 174183\209121 # 686822 v 4 Signature Print Name Signature Print Name 5 Bayshore Landing, LLC, a Florida limited liability company By: By: Robert W. Christoph, Jr., Manager Larry Rothstein, Manager 174183\209121 # 686822 v 4