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:
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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
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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.
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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
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Signature
Print Name
Signature
Print Name
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Bayshore Landing, LLC, a Florida limited
liability company
By:
By:
Robert W. Christoph, Jr., Manager
Larry Rothstein, Manager
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