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HomeMy WebLinkAboutExhibitSECOND AMENDMENT TO AGREEMENT TO ENTER INTO GROUND LEASE THIS SECOND AMENDMENT TO AGREEMENT TO ENTER INTO GROUND LEASE ("Second Amendment to Agreement to Enter") is made as of , 2006 by and between THE CITY OF MIAMI, a municipal corporation of the State of Florida ("City"), 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 agreed upon and entered into that certain First Amendment to Enter Into Ground Lease And Amendment To Form of Ground Lease dated December 2, 2004 (the "First Amendment To Agreement To Enter"). D. City and Flagstone desire to amend certain provisions of the Agreement to Enter pursuant to this Second Amendment to Agreement to Enter. NOW, THEREFORE, in consideration of Ten and No/100 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 Second 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. The parties hereby acknowledge and agree that each party has (or is deemed to have) met and satisfied all of the deadlines set forth in Section 3 and 4 of the Agreement to Enter. The Agreement to Enter is hereby amended so that: (i) the Lease Deadline (as defined in Section 6.2.1 of the Agreement to 06-1864 1 Enter) is hereby extended to August 1, 2008 (without any further extension right under Section 6.2.2 of the Agreement to Enter); and (ii) the Outside Date referred to in Section 6.2.3 of the Agreement to Enter is hereby extended to August 1, 2008, Section 7.3. At Section 7.3 of the Agreement to Enter shall now read as follows: "Platting and Other Development Matters. Flagstone and City shall cooperate with one another in connection with City's platting of the south side of Watson Island (which plat shall include the Property), and, if necessary, shall join in and consent to any reasonable easements, dedications or other conveyances or encumbrances which may be required by any Government Authority in connection with the approval of such plat provided that such agreements do not materially and adversely affect in Flagstone's reasonable opinion the use, value or utility of the Project as contemplated by the Development Plans. In addition, City shall have the right from time to time to enter into development related agreements which may impact or otherwise encumber Property, including, without limitation, easements, water and sewer agreements (including, without limitation, the amendment or modification of such existing agreements), road vacations, etc., and Flagstone shall have no right to object to the same at Lease Delivery provided that such agreements do not materially and adversely affect in Flagstone's reasonable opinion the use of the Project as contemplated by the Development Plans. The City and Flagstone will both use diligent efforts to complete the plat process by February 28, 2007 of the south side of Watson Island, which date shall include all recordation of the document with the appropriate agencies. Should the plat not be finalized by the date stipulated due to circumstances beyond the City's and Flagstone's controls, the responsibility to complete the platting process will become the sole obligation of Flagstone. The City will continue to cooperate with Flagstone to complete the process in an expeditious manner." 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 Second Amendment to Agreement to Enter are for convenience of reference only and shall not affect the construction of interpretation of this Second Amendment to Agreement to Enter. 6. Amendments. No amendment of any provision of this Second Amendment to 06-1864 2 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. Severabilitv. Any provision of this Second 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 Second Amendment to Agreement to Enter that if any provision of this Second 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. 8. Binding Effect; Assignments. This Second Amendment to Agreement to Enter shall be binding upon and inure to the benefit of the City and Flagstone and their respective successors and permitted assigns. 9. Governing Law. This Second 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 o Enter. The Agreement to Enter, as amended by the First Amendment to Agreement to Enter and this Second Amendment to Agreement to Enter, together with all easement agreements, license agreements and Subordination, Non - Disturbance and Attornment Agreements 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 Second 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 Second Amendment to Agreement to Enter by signing any such counterpart. IN WITNESS WHEREOF, City and Flagstone have executed this Second 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: Priscilla A. Thompson Name: Pedro G. Hernandez Title: City Clerk Title: City Manager Date: 06-1864 3 APPROVED AS TO FORM CORRECTNESS: By: Name: Jorge L. Fernandez Title: City Attorney STATE OF COUNTY OF APPROVED AS TO INSURANCE REQUIREMENTS: By: Name: LeeAnn Brehm Title: Risk Management Director FLAGSTONE ISLAND GARDENS, LLC By: FLAGSTONE DEVELOPMENT CORPORATION, its managing member By: Name: Mehmet Bayraktar Its: President The foregoing instrument was acknowledged before me this day of , 2006, by Mehmet Bayraktar, President of Flagstone Development Corporation, a Delaware corporation, as manager/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 06-1864 4