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File Ref. #050 OSo-NA'f 1~/rrl CITY OF MIAMI BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Sergio Rodriguez City Manager FROM: Lawrence A. Lev~ First Assistant City Attorney SUBJECT: Anchor Shops at South Beach DATE: May 7,1998 The City entered into a Master Lease Agreement with MB Redevelopment, Inc. ("Master Tenant") with regard to the Anchor Shops, which are in the base of the Convention Center Hotel Garage at 16th Street and Collins Avenue. The Master Tenant has the right to enter into subleases pursuant to Section 8.2 ofthe Master Lease. Section 8.2 also provides that "to the extent requested by any ofthe Subtenants, Landlord will agree to grant non disturbance rights to the Subtenant(s) so requesting, such that Landlord will agree that, so long as no default or event which, passing of time or giving of notice would constitute a default, exists under the applicable Sublease, Landlord shall not disturb the applicant applicable Subtenant's possession of its subleased premises or rights under the applicable Sublease by joining such Subtenant as a defendant in a foreclosure or eviction proceeding. " The City has previously approved a sublease between the Master Tenant and DNA, Inc. (d/b/a Xando Coffee Bar) pursuant to a sublease dated October 8, 1997. As per the attached copy of Section 8.2 and my Memorandum to Murray Dubbin, dated April 30, 1998, we have determined that the attached Subordination, Non-Disturbance, and Attornment Agreement does not need to be submitted to the City Commission for approval, and that it is appropriate for you to execute it. Please execute both copies and have them notarized and returned to me for transmittal to the Master Tenant's counsel. LALlkw F:IA TTO\$ALL IBEY\ANCHRSHP. SR ", r G f., ,(',1 r "/ .; .; 'UJ .! 8 -' '.'J. :'~- ~ I.... ." ~J \() CITY OF MIAMI BEACH TO: Murray H. Dubbin City Attorney FROM: Lawrence A. Levy First Assistant City Attorney / I hereby confirm that I have L prepared] Li reviewed] the attached o Ordinance o Resolution o ComractorAgreemem pther SJ-L,.L,Y1~~:d-~J...-. ~H~----F Regarding: fr~S~ ~Yi~ ~n and I hereby confirm to you that the same should be approved as to form, language and execution. -!Js- Lawrence A. Levy First Assistant City Attorney Date: ~;fo F:\A TTOILEVL\COMMMEMOIFORMAPPR,SLP . .. CITY OF MIAMI BEACH FROM: Murray H. Dubbin City Attorney Lawrence A. Levy ~ First Assistant City Attorney TO: DATE: April 30, 1998 RE: Retail Space Master Lease between Miami Beach Redevelopment Agency, Landlord, and MB Redevelopment, Inc., Master Tenant, dated as of September 20,1996. We have received a Subordination, Nondisturbance and Attornment Agreement from the Master Tenant's counsel with respect to a lease that has been entered into with DNA, Inc. d/b/a Xando Coffee Bar, which is the first subtenant to sign a lease with regard to the Anchor Shops, which will be located in the base of the Convention Center Hotel Garage at 16th Street and Collins A venue. The lease did not go the RDA for approval because the RDA is not a party to it. Attached hereto is a copy of Section 8.2 of the Master Lease on which I have highlighted the language that requires us to deliver Subordination, Nondisturbance and Attornment Agreement. In view of the fact that we have already agreed to grant non disturbance rights, I do not believe it is necessary to have the RDA approve each agreement. Please let me know if you concur. 1i~~~ ~~ Cl/J~~~ JP']--- _~ --f4;7 f1v ~~. ~ . r-.~ P~I~. ~(P~. ~~ ~ -0/' cTU1 ~ o/~~ -- 0tf) F 'A TTlJlLtVI._HOTELlMASLSt:I.MIlD .i isions of the Garage Easement Agreement. However, to the extent that Landlord repairs or rebuilds :r:~tai1 space following a taking reg~dless of whether Landlord. is ob~igat.ed to do so pursuant to the ) ge Easement Agreement, then this Master Lease shall COOl1ID1C In full force and effect. The :::eascs will provide that any repairs to or rebuilding of the condemned portions of the Retail Space WiD be performed only to the extent Landlord is required to repair or rebuild the Retail Space pursuant to the Garage Easement Agreement. However, to the extent that any of the Subleases approved by ~LaJJdlord require repair or reconstruCtion following a taking, Landlord, at its expense, sbal1 cause repair '<< reconstrUCtion to be made in accordaDce with the applicable provisions of the Subleases, and this JdastCr Lease shall continue in full force and effect. ARTICLE 8. ASSIGNMENT, TRANSFER AND SUBLKI-IlNG Section 8.1 Assi2IUIlCnt. Master Tenant shall not assign this Master Lease except to a successor tenant under the Ground or to a successor owner of the Hotel, and Master Tenant shall be required to assign this Master ,Lease to a successor tenant under the Ground Lease or to a successor owner of the Hotel. Section 8.2 Subleases. . f .r' ~ ~ " Landlord shall have the right to approve (in its reasonable judgment) the terms and conditions }of any proposed Sublease sought to be entered into between Master Tenant and a Subtenant, \lDcluding, without limitation, the Person(s) that is (are) proposed as the Subtcnant(s) thereunder. ,Each Sublease sought to be entered into by Master Tenant shall be submitted to Landlord. Landlord 1 have ten (10) Business Days within which to approve or disapprove the applicable Sublease (and, ~Jf disapproved, stating Landlord's reasons for disapproval with specificity). If Landlord fails to respond within such ten (10) Business Day period, then Master Tenant will notify Landlord of such ilure, and if Landlord fails to respond within five (5) calendar days thereafter, then the applicable Sublease shall automatically and without further notice be deemed to be approved. To the extent uested by any of the Subtenants, Landlord will agree to grant noDdisturbance rights to the ,SUbtenant(s) so requesting, such that Landlord will agree that, so long as no default or event which, 'With the passing of time or giving of notice would constiOlte a default, exists under the applicable blease, Landlord shall not disturb the applicable Subtenant's possession of its subleased premises or . rilhts under the applicable Sublease by joining such Subtenant as a defendant in a foreclosure or ~tion proceeding. 7 SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT (the "Agreement"), made the _ day of , 1991, among MIAMI BEACH REDEVELOPMENT AGENCY (the "Landlord"), having an address of 1700 Convention Center Drive, Miami Beach, Florida 33139, MB REDEVELOPMENT, INC. (the "Master Tenant"), having an address of 667 Madison Avenue, New York, New York 10021, and DNA, INC., a Connecticut corporation (the "Subtenant"), having an address of 700 Canal Street, 4th Floor, Stamford, Connecticut 06902. WIT N E SSE T H: WHEREAS, Landlord and Master Tenant entered into that certain Retail Space Master Lease dated as of September 20, 1996 (the "Master Lease"), pursuant to which the Landlord leased to Master Tenant, and Master Tenant leased from Landlord, the Retail Space, as defined in the Master Lease, which Retail Space is located on the Land, as defined in the Master Lease (and a legal description of which is attached hereto and made a part hereof as Exhibit "A"); and WHEREAS, Master Tenant and Subtenant have entered into that certain Retail Sublease dated October 8, 1997, as may be amended or modified from time to time (the "Sublease"), whereby a portion of the Retail Space has been sublet to Subtenant for use as a coffee bar, all as more particularly described in the Sublease; and WHEREAS, Landlord, Master Tenant, and Subtenant desire to enter into this Agreement in order to confirm subordination of the Sublease to the Master Lease, and to provide nondisturbance rights and attornment requirements on Subtenant, on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants contained herein and in consideration of Ten and No/loo ($10.00) Dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein as if set forth in full. 2. Subordination. Subtenant hereby covenants and agrees that the Sublease and the leasehold estate granted thereby and any and all rights, options, and estates therein contained or created thereunder are and shall continue to be subject and subordinate in all respects whatsoever to the Master Lease for the full term set forth therein and to all renewals, modifications, replacements, and extensions of the Master Lease. This clause shall be MI973160.061 self-operative and no further instrument of subordination shall be necessary to effectuate such subordination. However, in confirmation of such subordination, Subtenant shall execute promptly any certificate or further agreement that the Master Tenant or Landlord may reasonably request. 3. Nondisturbance. Landlord, as the lessor under the Master Lease, or anyone claiming by or through any holder of the Master Lease or any purchaser of Landlord's estate, hereby covenants and agrees that the leasehold estate granted to Subtenant under the Sublease and the rights of Subtenant and its successors in interest and assigns to quiet and peaceful possession under the Sublease will not be terminated or disturbed by any action taken by Landlord to terminate the Master Lease or to enforce the rights and remedies of the holder thereof so long as Subtenant or its successors in interest or assigns shall not be in default beyond applicable cure periods under the Sublease and shall pay the rents and additional rents under the Sublease, without offsets or defenses thereto, except as and to the extent specifically set forth in the Sublease, and shall fully perform and comply with all the terms, covenants, conditions, and provisions of Sublease on the part of the Subtenant thereunder to be performed or complied with (it being understood that no rental shall hereafter be paid earlier than thirty (30) days prior to the due date set forth in the Sublease). 4. Attornment. If any holder of the Master Lease or anyone claiming by or through any such holder or any purchaser of Landlord I s estate shall enter into and lawfully become possessed of the leased premises covered by the Sublease or shall otherwise succeed to the rights of the landlord under the Sublease, either through termination of the Master Lease or the acquisition of the estate thereby created, then Subtenant agrees to attorn to such successor landlord and recognize such successor landlord as its landlord under the Sublease. This clause shall be self-operative and no further instrument of attornment shall be necessary to effectuate such attornment. However, in confirmation of such attornment, Subtenant shall execute promptly any certificate or further agreement that the Master Tenant or Landlord may reasonably request. 5. Approval. Landlord confirms that it has consented to the Sublease and the transactions contemplated thereby pursuant to the Master Lease. 6. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors in interest and assigns. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. [signatures begin on next page] MI973160.061 -2- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. MIAMI BEACH REDEVELOPMENT AGENCY ATTEST: BY:~ r tXJ-~ Robert Parcher Secretary ORM & LANGUAGE ,E;rG'dk7"Vt & FOR EXECUTlON ~17<6a-ro""ii!. STATE OF FLORIDA ~I- COUNTY OF 'bADE ) )ss: ) ~ The foregoing instrument was acknowledged ~ore me ~s 13 day of MAY ,1991, by SERGIO R~IGlJs:.2 , as ~~ an~archer, as Secretary, of the MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, on behalf of such public body. They are personally known to me or produced valid Florida driver's licenses as identification. c~~iv c. /d~ Not ry Public, State of FIo da Print Name: l l~ ('. D/)(('}N My commission expires: ,. ';".:':,' _,\\C . _,: '\ {,\<;, ,'\\\\\', J',\\\'. ;," ,\I,' :./\~;; ~' , ~ ',) ,... f. :.,: :,,,'."~':".;_ .(: ,., \' .. :.\,. ~i~- ~~.\~ ~'_' ,r:.',,~;',.. .. ~>,:p._;; ":;/~:~2',.C;~'~~~, ~,\,~,~.>::~~:-: ;:'~'.. "~~ , \ ~ ..~.., ~,(I.. \\ ~\(.... ,~... ~((I,., ~ \ '. '" ((,~, ~ ~ I,. ~.; ~t(", {I, ~\,(~ APPROVED AS TO FORM & LANGUAGE & fOR execunoN ~~Of~/U1& General Counsel MI973160.061 -3- MB REDEVELOPMENT, INC. ATTEST: By: ~ Name: C? r:tr; ~ /f9t.,1() Title: __ By: Secretary STATE OF tJevv YoMc... ) )ss: COUNTY OF Ni?vV Y oQ ) rU The foregoing instrument was acknowledged before me this ;t 3 day of JA/lJv~tu-f ,1991, by ..JoH-0 6-. MAL.--iAJo , as V \ ve ff4:::> i1:le1\JT , ~ ' as-Seeretary, of MB REDEVELOPMENT, INC., a Florida corporation, on behalf of such corporation. They are personally known to me or produced as identification. ~t.~ Nota Pubhc, State of Print Name: My commission expires: ......--.&~J- __~"NlWYClllc No. S01" QuIIlftecIln Orange CCUIW e:;q ~l . .lIt.~AprlI12.1'..w ~~.- MI973160.061 -4- DNA, INC. ATTEST: Secretary By: (h'-'l ~ Name: 0 v P'I (.rJ'I1'2/ (r Title: Ct.,,', r MI<.,J By: STATE OFe /"1\ ) )ss: ~'::::,~~<"Q COUNTY OFc..~I'll'iL\cL ) The \) (' ( L...."~ \)-_..::_ r"-- foregoing instrument was acknowledged before me this ;}~l ~ day of 19', by ~(\, , ..\~:)-\e.\...,-c--\--~"'- , as , and '\ , as Secretary, of DNA, INC., a Connecticut corporati~~" on b~~alf rSUCh. corp. ~ra!ion. T~ey ~re p~rsonally known to me or produced LJ '-I \)\.,J"(:'-I, __~ - ,( '2'v~~ ~ as IdentificatIOn. \ - c - ,.---~) "". N~~~ 'Fu'b,ic, Stat:7,/ l:~I', Pr t Na ~ ~7 \~. . y-' V., in me: It .,~ _ r \.-,> ,- l-":~ 'l L,.~( " My commission expires: My Commission Exp. July 31. 1999 MI973160.061 -5- EXHIBIT A LEGAL DESCRIPTION: Lds 8.9./0.11./2 and IJ.BIOCK 51. Flsters FIrs! SuM/vIs/on d Alton Beacl1.0cc0rd/ng to the Plat trer(!JCl(.as rfJCOf'ded In Plat Book 2.PogfJ Tl d the PublIc Records at Dade COUnty.Fiorfdo. togdhsr wfth all of 16th StrfJfJ' (.AweflJtJ 'e- J./es.s and exCtJ(Jf tfrJ , allOIIlng descrIbed parcel: . BEGINNING at tfrJ SwthNtJSf corner of Block 54 (f saId FlsfrJr's FIrst SubdivIsIon of Alton B60ctf Plat: tfrJnctJ North 88' fY 5Y East along tm South lIne (f scld Block 54.0 dlstarr::e d 443lJ8 fMf.fo tfrJ Soutfr!Jost corner of sold BlOCk 54: ttrJnotJ South ar 351 (H West. a dlsta~ of 96..26 fiW.to a poIrt (f QJSp with a tangtJl't QJfWJ oorocNe to thtJ ScufhNestdfenotJ along tte arc of sold QJfW to tie Itif.frNlfr3 a radIus (J' 25lXJ ftJtt and a OIJItralonafe (f ~OO' W.an arc dlstonctJ of 39B fiW.fo a poIrt (f tafl{JfJllCt:ttence North 8~ 2" 52 West. a df61anotJ (f 2475 fiW:tfrJrnJ SOt.Jfh 88 00' 53' wast along a 11M 8lXJ f. North a' and poral/eI with. as II1<<JSUrtJd at rlgtt angles to 1m North 11M of Block 57 of saId plat.o dlstanaJ of 38218 fiW to a pdrt on IhtJ Easterly RIgft -of ~ay 11M of Wasfington ~ II'rJ1rtJ North or 59' If West along saId EasttJily Rlgtt~- Wuy llne.a dIstance of 62JXJ f. to tfrJ SoothNtJSf CtYntJr of sold Block 54 and tfrJ PoIrt of begInning. SaId lands lyIng and beIng In tre CIty of MIami B6ach and ccnfalnlng 65.9/0 squore fetJt 05131 Peres) more or less.