HomeMy WebLinkAboutExhibit CC MTG 9/26/19FIFTH AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT
(RETAIL PARCEL)
This Fifth Amendment to Amended and Restated Lease Agreement (Retail Parcel) (this
"Amendment") is made and entered into this day of , 2019 ("Effective Date"),
by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and
BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor by merger to
Bayside Center Limited Partnership ("Developer").
WITNESSETH:
WHEREAS, City and Developer are the current landlord and tenant, respectively, under that
certain Amended and Restated Lease Agreement dated as of October 15, 1985, as amended by that
certain First Amendment to Amended and Restated Lease Agreement dated as of August 19, 1986,
as further amended by that certain Second Amendment to Amended and Restated Lease Agreement
dated as of November 24, 1987, as further amended by that certain Third Amendment to Amended
and Restated Lease Agreement dated as of April 15, 1993 as further amended by that certain Release
and Settlement Agreement dated as of December 30, 2008 and as further amended by that certain
Fourth Amendment to Amended and Restated Lease Agreement dated September 24th, 2014
(collectively and together with any attachments, exhibits or riders thereto, the "Lease") for certain
premises located at Bayside Marketplace in Miami, Florida, as more particularly described in the
Lease (the "Leased Property"). A memorandum of the Lease was recorded in Book 12684, at Page
157, and supplemented in Book 13492, at Page 3199, both of the Public Records of Miami -Dade
County, Florida; and
WHEREAS, City and Developer desire to modify certain provisions of the Lease, on the
terms and conditions set forth herein, and subject to approval from the Miami City Commission.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer
hereby agree that the foregoing recitals are true and correct, and further agree as follows:
1. Definitions.
All capitalized terms used in this Amendment shall have the definitions ascribed to such
terms in the Lease, unless defined or amended in this Amendment. The term "Lease" shall refer to
the Lease (as defined in the first recital above), as modified by this Amendment. The term "Lease
Term" shall refer to the Original Term (as modified in this Amendment) and any applicable Renewal
Terms.
2. Section 2.1(a) Premises
The first sentence of the third paragraph of Section 2.1(a) Premises is amended and restated
as follows:
"New structures shall be limited to a maximum height not to exceed one
hundred ninety (190) feet above grade, with such minor exceptions as the City
Manager in the interest of good architectural design shall approve in connection
with his/her approval of the Construction Plans."
3. Notices.
Wherever any notice is required or permitted under the Lease, such notice shall be in writing.
Any notice or document required or permitted to be delivered under the Lease shall be deemed to be
delivered when it is actually received by the designated addressee or, if earlier and regardless of
whether actually received or not, when it is either (i) deposited in the United States mail, postage
prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a reputable
messenger service or overnight courier service, addressed to the applicable party to whom it is being
delivered at the respective address for such party as is set out below, or at such other address as such
applicable party may have theretofore specified to the delivering party by written notice:
If to City at:
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, FL 33130-1910
Attention: City Manager
with a copy to:
City of Miami
444 SW 2"d Avenue, 3rd Floor
Miami, FL 33130-1910
Attention: DREAM Director
4. Miscellaneous.
If to Developer at:
Bayside Marketplace, LLC
c/o Ashkenazy Acquisition Corp.150
East 58th Street, 39th Floor
New York, New York 10155
Attention: Asset Management
with a copy to:
Bayside Marketplace, LLC
c/o Ashkenazy Acquisition Corp.150
East 581h Street, 39th Floor
New York, New York 10155
Attention: Legal Deparment
(a) Each of City and Developer hereby acknowledges and agrees that neither is
presently aware of any continuing defaults by reason of any act or omission on the part of the other
party under the Lease and that as of the date of execution each party has fulfilled all of its duties and
obligations under the Lease to date.
(b) This Amendment shall be construed and governed in accordance with the laws of
the State of Florida. Venue in any actions or proceedings between the parties shall be in Miami -
Dade County, Florida. In order to expedite such actions or proceedings the parties knowingly and
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voluntarily waive their right to a jury trial in any such actions or proceedings. Developer and City
each agree to pay their own attorneys' fees in connection with any such actions or proceedings.
(c) This Amendment may be executed in any number of counterparts and by the
separate parties hereto in separate counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
(d) Each party hereby represents and warrants to the other party that (i) it has the full
right and authority to enter into this Amendment, and (ii) this Amendment is a binding and valid
document enforceable in accordance with its terms.
(e) This Amendment shall be deemed a part of, but shall take precedence over and
supersede any provisions to the contrary contained in the Lease. Except as modified hereby, all of
the provisions of the Lease, which are not in conflict with the terms of this Amendment, shall remain
in full force and effect, and, as modified hereby, the Lease is hereby ratified and confirmed in all
respects.
(f) This Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns.
(g) At the request of Developer, City agrees to enter into a memorandum of this
Amendment to be placed of record in the Public Records of Miami -Dade County in such form as
Developer and City shall mutually agree. Developer shall be responsible for all recording costs with
respect to such memorandum.
(h) The terms "business day" or "business days", as used herein, shall mean,
individually or collectively, as the case may be, each calendar day of the week other than Saturday,
Sunday and any nationally recognized legal holidays.
[Remainder of Page Left Blank Intentionally]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective
Date.
ATTEST:
Todd B. Hannon
City Clerk
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
By:
Victoria Mendez
City Attorney
STATE OF FLORIDA )
) SS..
COUNTYOF MIAMI-DADE )
CITY OF MIAMI, a municipal corporation of
the State of Florida
Emilio T. Gonzalez, Ph.D.
City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS
By:
Ann -Marie Sharpe
Acting Risk Management
The foregoing instrument was acknowledged before me this day of
, 2019, by Emilio T. Gonzalez, the City Manager, and Todd B. Hannon, the
City Clerk, of the City of Miami, a Florida municipal corporation, in the capacity aforesaid; each
such person is personally known to me.
Sign Name:
Print Name:
Notary Public
My Commission Expires Serial No. (none if blank):_
[NOTARIAL SEAL]
.19
WITNESSES:
Print Name:
Title:
Print Name:
Title:
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
BAYSIDE MARKETPLACE, LLC, a
Delaware limited liability company
By:
Print Name:
Title:
The foregoing instrument was acknowledged before me this day of ,
2019, by as of Bayside Marketplace, LLC, in the
capacity aforesaid; such person is personally known to me.
Sign Name:
Print Name:
Notary Public
My Commission Expires: Serial No. (none if blank):
[NOTARIAL SEAL]
G