Second Amendment to Marina Lease AgreementJuly 18, 1994
SECOND AMENDMENT TO MARE~IA`i.EASE AGREEMENT .
This Second Amendment to Marina Lease Agreement ("Second Amendment") is made
as of ~~~~A~ , ~' i994 between the City of Miami Beach, a ~~rida municipal corpoz~tio
(the "City""), and Tallahassee Building Corporation, a Florida corporation ("Lessee").
Recitals
A. The City and Lessee entered into that certain First Amendment to Marina Lease
? Agreement dated October 23, 1991 with respect to the ivliami Beach Marina (the "First
Amendment").
B. The provisions of the First Amendment require the Lessee to permit and'construct
a Drystack Facility containing not less than 250 drystack units; provided, however, `that Lessee
is not obligated to expend 'more than $3,000,000 for the construction of the Drystack Facility.
C. In undertaking its responsibilities to design, permit and construct the ~rystack
Facility pursuant to the First Amendment, Lessee has prepared plans which. call for the'
construction of a drystack facility with an internal crane, system that is approximately 120,. feet
tall.
D. The Miami Beach Housing Authority objected to the construction of the Drystack
Facility and formally protested issuance of permits for said facility.
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E. Pursuant to other provisions of the First Amendment, the City is required to
provide 1,000 parking spaces for the Marina along with a pedestrian overpass.
F. After evaluating all of the various alternatives, the City and Lessee have
determined that it would be in both parties interest .to eliminate the requirement for the Drystack
Facility from the Marina Lease, as amended, if the City can provide the required Marina parking
on the Marina site, thereby avoiding the cost of land acquisition for the required parking and the
construction of the pedestrian overpass.
G. Further, if the City acquires the SSDI rights to Area 4, as contemplated by this
Amendment, the City will be able to meet the Marina parking needs with surface parking, until-
_ ~ such time as the City may deem that it is in the City's best interest to construct a parking garage
and develop Area 4.
H. The City and Lessee have agreed to make further amendments to the- Iviar~ai
Lease as provided by this Second Amendment.
Terms
1. Recitals.
The foregoing recitals are true and are made a part of this Agreement.
2. Defined Terms.
Unless otherwise specifically defined in this Second Amendment, all capitalized terms
used in this Second Amendment shall have the respective meanings ascribed to them my the First
Amendment.
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3 . Amendments.
The First Amendment and the Marina Lease are hereby amended as follows:
3.1 Drystack Facility. ~ -
. ~'he City.. and Lessee hereby agree -that the City and ~ the -Lessee will not pursue
construction of the Drystack Facility and in its place, the City agrees to provide parking for the
Marina as described below. Accordingly, all references in the First Amendment to the Drystack
Facility and the Drystack Facility Guaranty, and all obligations of the City, Lessee, and Heller
with respect to the Drystack Facility, are deleted from the First Amendment. Without limiting
the generality of the foregoing, except to the extent that terms are defined in such sections and
~~ are used in other provisions of the First Amendment which are not being deleted, Sections 2.8,
2.10, 2.15, 2.16, 2.17, and 2.18 of the First Amendment, and Exhibit 4 to the First
Amendment, are hereby deleted in their entirety. The Drystack Facility Guaranty shall be
returned by Escrow Agent to Heller and shall be deemed to be of no force or effect.
3.2 Construction of Marina Parkine and Facilities. _
Upon the execution of this Second Amendment the City and Lessee shall
immediately undertake all actions necessary to construct permanent on-site parking and facilities
for the Marina in accordance with one of the following alternatives, either: (1) ground level
parking and facilities on Area 1 and Area 4 (the "Surface Parking Alternative") along with
additional parking and facilities on Area 3; (2) a parking garage on Area 1, along with parking
and facilities on Area 4 (the "Area 1 Parking Garage Alternative") and additional parking and
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facilities on Area 3; or (3) a parking garage or garages along with additional facilities on Area
4 and a surface parking lot on Area 1 {the "Area 4 Parking Garage Alternative") along with
additional parking and facilities on Area: 3, all as more fully descn`bed below.
3.3 The Surface Parking Alternative.
3.3.1 Within two hundred seventy (270) days of the effective date of this
Second Amendment to the Marina Lease (the "Second Effective Date"), the City shall enter into
an agreement or agreements to acquire the SSDI rights to Area 4. Said agreement(s) shall
provide for acquisition of the Area 4 rights within one hundred eighty (180) days of the
execution of the agreement(s) to acquire the SSDI rights.
~ 3.3.2 The City and Lessee shall approve the immediate use of up
to $550,000 of City Contributions by Lessee for the construction of a surface parking lot,
containing not less than 125 parking spaces reserved for users of the Marina on the southern 180
feet of Area 1 less the westerly 25 feet thereof (the "Area 1 Parking"), and the renovation and
expansion of the existing parking facilities located on Area 4 (the "Area 4 Parking"). The
Lessee agrees to utilize $150,000 of the existing City Contributions pursuant to the First
Amendment and the City agrees to further increase the amount of City Contributions by
$400,000 for the construction of the Area 1 Parking and the Area 4 Parking and related
improvements.
3.3.3 The Area 1 Parking and the Area 4 Parking shall be
considered part of the Leased Premises under the Marina Lease and shall be subject to all of the
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terms and conditions of the Marina Lease, as amended, including, but not limited to, provistons
governing Gross Receipts, Annual Percentage Rent, maintenance, security and insurance
provisions. Further, Lessee agrees that the Area 1 Parking .location shall be used solely for
parking unless the City agrees ~ ~+citing to other ~rnutually acceptable uses. ~In addition, Lessee
agrees that any spaces on Area 1 in excess of the one hundred twenty-five (125) parking spaces
being provided for the Marina shall be available at no cost to the City for long term employee
parking or other mutually acceptable uses approved by the parties.
3.3.4 In addition to the Lessee implementing the Area 1 Parking
and the Area 4 Parking, the City shall implement the Area 3 Parking and Facilities as defined
below in Section 3.5.
3.4 The Parking Garage Alternatives.
If the City is unable to enter into a contract to acquire the SSDI rights to Area 4
within two hundred seventy (270) days of the Second Effective Date or fails to timely acquire
the SSDI Rights pursuant to said agreement ("Fails to Acquire the Area 4 Rights"), the City
shall. immediately undertake the following steps to implement the Area 1 Garage Alternative.
If the City elects at any time during the Marina Lease or any extensions thereto to exercise its
option to terminate the Marina Lease as to Area 4 as set forth in Section 3.6 below, the City
shall immediately undertake the following steps to implement one of the Parking Garage
Alternatives described below. The parties agree that in the event that the City's acquisition of
the SSDI rights to Area 4 is delayed as a result of bona fide litigation brought by third parties
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challenging the City's acquisition of the SSDI rights, the time period for timely acquisition shall
be tolled during the pendency of any such action; provided, however, that the City shall at all
times provide at least the minimum parking required Pursuant to Section 3.8 of the First
Amendment. ~-If the City .has acquired..the Area 4 SSDI Rights, the parties acknowledge that the
Lessee prefers: first, the Surface Parking Alternative; second, the Area 1 Garage Alternative;
and third, the Area 4 Garage Alternative, but is willing to accept any of the Parking Garage
Alternatives.
3.4.1 The Area 1 Garage Alternative.
The City shall construct at no cost or expense to Lessee, other than parking
fees pursuant to Section 3.7, a parking garage on a portion of Area 1 (the "Area 1 Garage")
on the southerly one hundred eighty (180) feet of Area 1 less the westerly 25 feet thereof
between the Core Building and the Rebecca Towers (the "Area 1 Garage Location") subject to
the final design of the Area 1 Garage as set forth below. The Area 1 Garage shall contain not
less than four hundred fifty (450) parking spaces reserved for users of the Marina facilities. The
Area 1 Garage shall also contain not less than 7,500 square feet of net rentable area of retail
space on the side of the Area 1 Garage facing the Baywalk. In addition, at the City's option,
the Area 1 Garage may include additional retail/office space. All such retail or office space not
occupied by the City, the Agency, or the Housing Authority shall be defined as the "Garage
Retail Space". The City shall build out the Garage Retail Space as a shell only with separate
metering for all utilities. Lessee shall be responsible for all tenant improvements. In addition
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to construction of the Area 1 Garage, the City shall utilize its best efforts (which shall not
include the filing of any lawsuit) on or before the termination of the Marina Lease, as amended
as to Area 4, to secure a valid, legally enforceable, non-exclusive, permanent easement, lease
or other interest acceptable to Lessee in favor .of Lessee, its .successors, .assigns, sublessees and
their respective guests and invitees and other permitted users of the marina facilities over,
across, upon, and under the strip of land extending from Alton Road on the east to Area 2 on
the west and from the north boundary of Area 1 to the line which is approximately one hundred
fifty (150) feet north of Area 1. Such easement or other interest shall be for the purpose of
providing for: not less than one hundred (100) parking spaces reserved for users of the Marina;
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the Core Building entry and drop-off area; fueling facilities, bathroom and laundry facilities; and
a view corridor and shall be for a period coterminous with the term of the Marina Lease, as
amended (including both the Initial Term and any Extended Terms) (the "Easement Parking and
Facilities"). In addition to the Easement Parking and Facilities, the City shall provide not less
than one hundred (100) additional parking spaces in the northern half of Area 4. In the event
that. the City is able to secure this easement or other interest prior to finalizing the design of
Area 1 Garage, the design will no longer be required to accommodate the relocation of the
fueling facilities. Further, in the event that the City cannot acquire the easement or other
interests described above, the City shall exercise its rights under the SSDI Documents to require
the construction of not less than two hundred (200) parking spaces along with bathroom and
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laundry facilities, dropoff parking and other easements reserved for the use of Marina users in
Area 4.
. 3.4,2 The Area 4 Garage Alternative.
In the event that the City has acquired the Area 4 SSDI Rights, as an
alternative to the Area 1 Parking Garage, .the City may construct or cause to be constructed at
no cost or expense to Lessee, other than parking fees pursuant to Section 3.7, a parking garage
or garages on Area 4 (the "Area 4 Garage(s)") subject to the final design of the Area 4
Garage(s) as set forth below. The Area 4 Garage(s) shall contain not less than five hundred
'r twenty five (525) parking spaces reserved for users of the Marina facilities. No more than one
hundred (100) of these parking spaces may be located in the north half of Area 4. The Area 4
Garage(s) shall also contain not less than 7,500 square feet of net rentable area of retail space
on the side of the Area 4 Garage(s) facing the Baywalk or the Core Building. All such retail
space shall be defined as the "Area 4 Garage Retail Space" . The City shall build out or cause
to be built out the Area 4 Garage Retail Space as a shell only with separate metering for all
utilities. Lessee shall be responsible for all tenant improvements. In addition to the Area 4
Garages, the Area 1 Parking shall remain a part of the Marina Lease throughout the Initial Term
and any Extensions. In addition to the construction of the Area 4 Garage(s), the City shall on
or before the termination of the Marina Lease, as amended as to Area 4, provide a valid, legally
enforceable, non-exclusive, permanent easement, lease, or other interest acceptable to Lessee,
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in favor of Lessee, its successors, assigns, sublessees, and their respective guests and invitees
and other permitted users of the Marina facilities over, across, upon and under the strip of land
extending from Alton Road on the east to Area 2 on the west and from the north boundary of
Area 1 to the Tine which ~is approximately one hundred fifty (150) feet north of .Area 1. Such
easement or other interest shall be for the purpose of providing for: the Core Building entry and
drop-off area; fueling facilities, bathroom and laundry facilities for the Marina; and a view
corridor and shall be for a period coterminous with the term of the Marina Lease, as amended
(including both the Initial Term and any Extended Terms). At no expense to Lessee, the City
shall construct or cause to be constructed any modification to the Core Building entry and drop-
off and fueling facilities and new bathroom and laundry facilities for the Marina as may be
required, if any, for the implementation of the Area 4 Parking Garage Alternative. The City
shall also provide access and drop-off facilities at the northern end of Area 4 that are
substantially similar to the facilities to be provided pursuant to the SSDI Documents.
3.4.3 The City agrees that the quality of construction and
maintenance of the Area 1 Garage shall be at least equal to that of other new City public parking
facilities. The design of the Area 1 Garage shall take into account and accommodate the
following: (i) the proper circulation, service and delivery needs of the Core Building and the
Garage Retail Space; (ii) the relocation of the fuel tanks and appurtenant facilities necessary for
the proper operation of the Marina (the cost of the relocation shall be at Lessee's sole cost and
expense); (iii) proper buffering to minimize any negative visual impacts of the Area 1 Garage
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on the permitted facilities in and appurtenant to the Core Building, including, but not limited to
the dining facilities facing the Area 1 Garage Location, the proposed swimming pool and deck,
and cabanas; (iv) proper and convenient vertical circulation elements to facilitate access to the
Marina, Baywalk and the Core $uilding; .(v).minimize shading of the pool; (.vi) integration of
the Area 1 Garage and the Garage Retail into the baywalk and associated landscaping including
repair and restoration of the Baywalk along the Area 1 Garage Location.
3.4.4 The City agrees that the quality of construction and maintenance of the Area 4
Garage(s) shall be at least equal to that of other new City public parking facilities. The design
of the Area 4 Garage(s) shall take into account and accommodate the following: (i) the proper
circulation, service and delivery needs of the Core Building and the Area 4 Garage Retail Space;
(ii) the retention and operation of the fuel tanks and appurtenant facilities necessary for the
proper operation of the Marina; (iii) proper buffering to minimise any negative visual impacts
of the Area 4 Garage(s) on the permitted facilities in and appurtenant to the Core Building,
including, but not limited to the dining facilities facing the Area 4 Garage(s); (iv) proper and
convenient vertical circulation elements to facilitate access to the Marina, Baywalk and the Core
Building; (v) integration of the Area 4 Garage(s) and the Area 4 Garage Retail into the Baywalk
and associated landscaping including repair and restoration of the Baywallc along the Area 4
Garage(s) location.
3.4.5 The Area 3 Parking and Facilities (as described below), the Area 1
Garage, the Area 4 Garage(s) and the Easement Parking and Facilities shall be constructed in
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accordance with plans to be presented to and reviewed by the Lessee which shall submit any
comments or requested modifications to the City, in writing, within thirty (30) days of receipt
of the plans from the City. The City shall take into consideration, and to the maximum extent
reasonably feasible, incorporate~the Lessee's comments and requested.modifications into the fuial
plans for the various facilities. If the City Fails to Acquire the Area 4 Rights, the City shall
furnish its initial plans for the Area 1 Garage on or before one hundred eighty (180) days after
it Fails to Acquire Area 4 Rights and shall cause construction of the Area 1 Garage to commence
within an additional one hundred eighty (180) days thereafter. The City shall thereafter diligently
and continuously pursue completion of such construction and place the Area 1 Garage into
operation no later than two years after the date the City Fails to Acquire the Area 4 Rights.
In the event that the City has previously acquired the SSDI rights to Area
4 and is exercising its option to terminate the Marina Lease for Area 4 pursuant to Section 3.6,
the plans shall be submitted within one hundred eighty (180) days of the City notifying the
Lessee of its intention to terminate the Lease for Area 4. The City shall enter into a
construction contract for the Area 1 Garage or Area 4 Garage(s) within three hundred sixty-
five (365) days of such notice and the Area 1 Garage or Area 4 Garage(s) shall be placed into
operation within two (2) years of such notice.
3.4.6 Prior to commencement of construction of the Area 1 Garage, or the Area
4 Garage(s) the City shall require its contractors and subcontractors to name Lessee, its officers,
directors, employees, successors, assigns, mortgagees, and Marina operators or managers
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July 18, 1994
(collectively, the "Lessee-Related Parties") as additional insureds in such liability and/or
builder's risk insurance policies as are obtained in connection with such construction. Thereafter
until completion of such construction, the City shall maintain or cause to be maintained such
insurance continuously, with the Lessee-Related Parties named as additional insureds. Further,
the City shall require payment and performance bonds for the full amount of the contract as part
of each contract. To the extent permitted by applicable law, the City shall indemnify, hold
harmless, and defend the Lessee-Related Parties against all claims, litigation, damages, liability,
attorneys' fees and costs (including those for appellate proceedings and those of paralegals and
similar persons), related to, growing out of, or arising from, the design, construction, and/or
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- operation of the Area 1 Garage or Area 4 Garage(s), except as may be caused by Lessee-
Related Parties' negligence. Nothing contained in this section or elsewhere in this Second
Amendment is in any way intended to be a waiver of the limitation placed upon the City's
liability as to third parties .set forth in Section 768.28, Florida Statutes. Upon the proper and
complete execution of the construction contract(s) for the construction of the Area 1 Garage or
Area 4 Garage(s) and the proper and complete posting of the required payment and performance
bond(s) for said construction and the delivery of all required certificates of insurance, the Marina
Lease, as amended, shall be deemed to be automatically further modified in order to exclude,
from and after such date, the Area 1 Garage or Area 4 Garage(s) Location and any and all
improvements upon the Area 1 Garage Location or Area 4 Garage(s) Location (including, but
not limited to, the Area 1 Garage or Area 4 Garage(s) other than the Garage Retail Space or the
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Area 4 Garage Retail Space from the premises leased to Lessee pursuant to the Marina Lease,
as amended. It is the intent of the parties that the Area 1 Garage or Area 4 Garage(s) other
than the Garage Retail Space or the Area 4 Garage Retail Space shall be owned and operated
solely by the pity (and not by Lessee), but that the City's operation and maintenance -0f the Area
1 Garage or Area 4 Garage(s) shall be subject to its obligations under this Second Amendment
concerning such construction, operation and maintenance. Upon the request of either party, the
City and Lessee shall enter into an amendment or memorandum concerning the legal description
of the Area 1 Garage Location or Area 4 Garage{s) Location and its exclusion from the legal
description of the premises leased pursuant to the Marina Lease, as amended, which amendment
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or memorandum may be recorded in the Public Records of Dade County, Florida.
3.4.7 The Garage Retail Space or the Area 4 Garage Retail Space
shall be deemed to be a part of the Marina facilities and a part of the premises leased to Lessee
pursuant to the Marina Lease, as amended. Lessee shall have the right to sublease such space
in accordance with the provisions of the First Amendment governing subleasing of space on the
Core Building. Any and ~ll subleases of such space shall be deemed to be "Subleases" as
defined in the First Amendment, and the Gross Receipts generated with respect to the Garage
Retail Space shall be included in the total Gross Receipts for the purpose' of calculating the
Annual Percentage Rent.
3.4.8 From and after the commencement of the operation of the
Area 1 Garage or Area 4 Garage(s), if the Area 4 Garage(s) contain the Area 4 Garage Retail
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Space, Lessee shall thereafter pay to the City an additional $50,000.00 in rent per Lease Year,
payable in monthly installments of $4,166.66, in addition to parking fees pursuant to Section 3.7
below. Such funds shall be used by the City toward retirement of any debt issued by the Ciry
for the construction of the Area 1 Garage ~r the Area 4 Garage(s). Lessee's obligation to pay
such additional $50,000.00 per Lease Year in rent shall terminate twenty (20) years after the
commencement of Lessee's obligation to pay such rent. Such additional rent shall be prorated
for any portion of any Lease Year to which it is applicable.
3.4.9 In the event the City has acquired the Area 4 SSDI rights
and plans to redevelop Area 4 by implementing the Area i Garage Alternative and terminate the
Marina Lease as to Area 4 and desires to include portions of the Easement Parking and Facilities
area in an overall redevelopment plan for Area 4 it may do so subject to approval of Mutually
Acceptable Plans by Lessee meeting the following minimum standards: the minimum View
Corridor width must beseventy-five (75) feet; the Ciry must provide equivalent parking,
laundry and washroom facilities, dropoff loading and entry facilities, and fueling facilities
adjacent to the Core Building; and all such modified facilities shall be provided at the no cost
or expense to the Lessee.
3.5 Area 3 Parkingand Facilities. In addition to implementing either the
Surface Parking Alternative, the Area 1 Pazking Garage Alternative or the Area 4 Parking
Garage Alternative, the City shall implement the following provisions concerning the additional
parking and facilities to be provided in Area 3.
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3.5.1 Upon the termination of the Marina Lease or the loss of use
by the Lessee of all or any portion of Area 3 and until the earlier of: (1) five (5) years after the
termination or loss of use of any portion of Area 3; or (2) the permanent Area 3 Parking and
Facilities (as defined below) are placed .into service, ;,vhichever~ comes first, .the Minimum
Annual Guaranteed Rent to be paid to the City by Lessee pursuant to Article II, Paragraph 2(A)
of the Marina Lease, as amended, shall be $120,000 per year or $10,000 per month or such
larger monthly payment as may be necessary to pay the rent due pursuant to the Sovereignty
Submerged Lease for Area 2 if said rent is increased as a result of actions instituted by or on
behalf of the Lessee. However, in the event that Lessee generates Gross Revenues in excess of
-) $2.4 million in any calendar year from Area 2 during said time frame, the reduction in
Minimum Base Rent shall be eliminated on a dollar for dollar basis for each dollar of Gross
Revenues from Area 2 above $2.4 million generated in the applicable calendar year. In
addition, during such period of time the provisions of Article II, Paragraph 2(B) of the Marina
Lease, as amended, shall be modified as follows: in addition to the reduced Minimum Annual
Guaranteed Rent described above Lessee shall pay Annual Percentage Rent equal to: (a) two
cents per gallon from the sale of gasoline and diesel fuel in such Lease Year or portion thereof;
and (b) Eight percent (8%) of Gross Receipts above $2.52 million ($2,520,000) generated from
Area 2 {the Submerged Lands) and Eight percent (8%) of the Gross Receipts above $1.5 million
($1,500,000) generated from Areas 1, 3 and 4 (the Uplands).
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3.5.2 _ in the event that the City has acquired the Area 4 SSDI
rights at such time as the Marina Lease is terminated as to all or any portion of Area 3, the City
shall exercise its rights under the SSDI documents to require SSDI, or its successor, to construct
on Area 3 {i) a permanent parking facility or facilities having ~ not less -than one hundred fifty
(1S0) parking spaces, and (ii) bathroom and laundry facilities; and (iii) dropoff and loading and
short term parking facilities and access easements substantially as contemplated by the SSDI
Documents (the "Area 3 Parking and Facilities"). The Area 3 Parking and Facilities shall be
reserved for users of the Marina facilities. For the purposes of this Amendment subject to
approval of Mutually Acceptable Plans by Lessee the permanent Area 3 Parking and Facilities
- can be a combination of structural parking and surface parking facilities along with the other
required facilities so long as all the facilities are of a quality necessary to be considered
permanent. Moreover, subject to Mutually Acceptable Plans approved by Lessee the facilities
may change or be replaced over time so long as all of the required facilities are provided and
all of the facilities are of a quality necessary to be considered permanent.
3.5.3 During the period of time between the termination of the
Marina Lease or the loss of use of any portion of Area 3 and before the permanent Area 3
Parking and Facilities are placed into service, the City shall furnish, or require SSDI or its
successors to furnish the following temporary facilities: (i) not less than fifty (SO) parking spaces
located either on Area 3 or within 300 feet of Area 3, (ii) dropoff facilities located on both the
north and south ends of Area 3, and (iii) temporary bathroom facilities located in trailer(s) on
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Area 3 or on houseboat(s) or barges(s) located adjacent to Area 3. All such temporary facilities
shall remain available and reserved for users of the Marina facilities at all times until the
permanent Area 3 Parking and Facilities are completed and available for use by the Marina
users.
3.5.4 After the permanent Area 3 Parking and Facilities are placed
into service and made available to Marina Users the Lessee shall thereafter until such time as
the Area 1 Garage or the Area 4 Garage(s) are placed in service pay the City an additional
$50,000 per year in rent payable in monthly installments of $4,16b.66. Such additional rent
shall be prorated for any portion of the Lease Year to which it is applicable.
- ~ 3.6 City's Option To Terminate The Marina Lease As To Area 4. The City
shall retain its right to terminate the Marina Lease with respect to Area 4 subject to the
requirements of Paragraph 3 of the Marina Lease at any time throughout the term of the Marina
Lease and any extensions; provided, however, that if the City has previously implemented the
Surface Parking Alternative, the following additional requirements shall apply prior to any
termination. The City shall either:
1) a) Construct or cause to be constructed temporary replacement parking
for the one hundred twenty-five (125) Area 1 parking spaces by reconfiguring the Area 4
Parking through valet, tandem or other modifications subject to Mutually Acceptable Plans
(Lessee shall be responsible for the operation of said replacement parking), and (b) after said
replacement parking is available, the City shall implement the Area 1 Parking Garage
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Alternative including placing the Area 1 Garage, Easement Parking and Facilities and the
additional 100 spaces on the northern half of Area 4 into operation prior to the termination of
the Marina Lease as to Area 4; -or
2) a) ~~ Reconfigure the Area~4 Parking and the Area 1 Parking to provide
temporary replacement parking for any parking to be displaced by the construction of the Area
4 Garage(s) through valet, tandem or other modifications subject to Mutually Acceptable Plans
(Lessee shall be responsible for operating said replacement parking) and (b) after said
replacement parking is available the City shall implement the Area 4 Garage(s) and the
replacement bathroom and laundry facilities, and dropoff and loading facilities and place them
into operation prior to the termination of the Marina Lease as to Area 4.
3.7 Parking, Fees. With respect to the Area 1 Garage, the Area 4 Garage(s)
and the Area 3 Parking and Facilities, the City shall establish a validation and/or leasing
program to reduce the cost of parking for Marina users .renting a slip at the Marina for not less
than one month to a fee, not to exceed the residential parking permit rates as they may be
established from time to time. The City shall cooperate with the Lessee to also establish a
validation and/or leasing program for Core Building and Garage Retail Space tenants to facilitate
use of the Area 1 Garage or the Area 4 Garage by invitees, guests, and customers of the
Marina and its tenants. All revenues from the Area 1 Garage or the Area 4 Garage(s) excluding
revenues from the Garage Retail Space or the Area 4 Garage Retail Space shall belong to the
City.
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July 18, 1994
3.8 Termination of Other Parking Obligations. Subject to the City's
compliance with its obligations under this Second Amendment with respect to the Surface
Parking Alternative, the Parking Garage Alternatives and the Area 3 Parking and Facilities,
the City -shall ~be released from its obligations to construct, operate and maintain anoff--site
surface parking lot and/or off-site parking garage(s) with an overpass as described in Sections
3.4, 3.5, 3.6, 3.7 and 3.30 of the First Amendment. Subject to the City's compliance with its
obligations under this Second Amendment with respect to the Surface Parking Alternative, the
parking Garage Alternatives and the Area 3 Parking and Facilities and without limiting the
generality of the foregoing, except to the extent that terms are defined in such sections and are
used in other provisions of the First Amendment which are not being deleted, Sections 3.4, 3.5,
3.6, 3.7, and 3.30 of the First Amendment are hereby deleted in their entirety; provided,
however, that nothing in this Second Amendment shall be deemed to release the City from its
agreements and obligations: (i) under Section 3.8 of the First Amendment at any time, and (ii)
under Sections 3.4, 3.5, 3.6, 3.7 and 3.30 of the First Amendment if the City fails to comply
with. its obligations under this Second Amendment with respect to the Marina parking.
3.9 Sale of Leasehold Interest. In the event of a sale or assignment by Lessee
to a bona fide arms' length third party of Lessee's leasehold interest under the Marina Lease,
as amended ("Marina Sale"), Lessee shall pay to the City the following percentage, as
applicable, of the "residual value of the leasehold interest" (as defined below): (i) one percent
(1 %) if the Marina Sale occurs within one (1) year of the effective date of this Second
prr:F:~nocs~cx~nco~io~~_i:~rzs~sa a:s~~) -19-
July 1$, 1994
Amendment, (ii) three-fourths percent (3/4 %) if the Marina Sale occurs within two (2) years of
the effective date of this Second Amendment, (iii) one-half percent (1/2%) if the Marina Sale
occurs within three (3) years of the effective date of this Second Amendment, and (iv)
one-quarter percent (1/4%) if the Marina Saidoccurs within four (4) years of the effective date
of this Second Amendment. If the Marina Sale occurs at any time thereafter, Lessee shall have
no obligation to make any such payment to the City. For purposes of this Section 3.9, the term
"residual value of the leasehold interest" shall mean the net proceeds from the Marina Sale after
deducting therefrom all costs of sale incurred by the Lessee, (including, but not limited to, sales
and/or brokerage commissions, title in~rance premiums, title examination costs, legal fees,
customary prorations, fees owed to the Marina manager as a result of the Marina Sale, and any
and all other fees, costs, and expenses incurred by Lessee in connection with the Marina Sale)
but in no event shall Lessee's deduction for costs exceed fifteen percent (15 %) of the total sales
price, less $12,000,000.00.
3.10 Escrow Agent. City and Lessee hereby agree that the law firm of Eckert
Seamans Cherin & Mellott shall be substituted as Escrow Agent under Section 2.9 of the First
Amendment.
3.11 Improvements to Property. The parties acknowledge that it was the intent of
the parties that all improvements to the Marina Site be owned by City, however, because of
issues related to financing and other concerns which arose during the initial Lease negotiations,
provisions to the contrary, including but not limited to those contained in Article VII, Section
Pi7':F:\DOCS~CNM\CORP~10937 1:7/28/94 (2:59pm) -20-
July 18, 1994
8 of the Lease were included in the Marina Lease. The parties desire to clarify and correct the
original Lease provisions concerning ownership of improvements. Therefore, by way of
clarification and not modification, for and during the term of this Lease, all improvements and
related facilities which have been or-maybe constructed on the Marina Site whether by Lessee
or City and all additions, alterations and improvements thereto, or replacements thereof and
appurtenant fixtures, machinery and equipment to be installed therein, on the Marina Site shall
belong to and be the property of City. Lessee shall have the right to the exclusive use and
possession of such improvements during the Initial Term and any extension thereof. Upon the
expiration of this Lease at the end of its Initial Term or any extension thereof, or upon sooner
-- ~ termination pursuant to the provisions of the Marina Lease as amended, said improvements and
related facilities shall be surrendered in accordance with the provisions of Article XXIX.
Notwithstanding anything to the contrary contained in Article VII, Section 8, all items of
personal property used in operations, management and maintenance of the Marina Site shall be
and remain the property of Lessee.
3.12 Minimum Annual Guaranteed Rent. Article II, Paragraph 2A, subparagraphs d
and a shall be amended to read as follows:
d) For 1994, 1995, 1996, 1997, 1998, and 1999 $240,000 per year.
e) For 2000 and for the remainder of the Initial Term or Extended terms, if
any, $320,000 per year, or
Prf:F:\DOCSICNM\CORP110437_1:7R8/44(2:59pm) -21'
July 18, 1994
4. Effective Date.
4.1 The obligations of either party which are required by the terms of this
Second Amendment to be performed shall become effective upon execution of this Second
Amendment by all parties.
4.2 The effective date of this Second Amendment shall be the date when the
last one of the City or Lessee has signed this Amendment, as stated on the signature page.
5. Status of Marina Lease,_ as Amended. The City and Lessee acknowledge and agree
that the Marina Lease, as amended by the First Amendment and this Second Amendment, is
current and in full force and effect and good standing and that there are no outstanding defaults
by Lessee or City under same and that to the extent such defaults exist, they are hereby waived.
5. Conflict. In the event of any conflict or inconsistency between the terms and
provisions of this Second Amendment and the Marina Lease, as amended by the First
Amendment, this Second Amendment shall prevail.
7. Incorporation of Provisions. The provisions of Sections 6 through 27 of the First
Amendment (other than Section 13) are hereby modified to reference both the First Amendment
and this Second Amendment, and such provisions shall be applicable to both the First
Amendment and this Second Amendment.
8. Further Actions. City and Lessee agree to cooperate with each other and to
timely take all such further actions and to execute all such documents as may be reasonably
PTI':F:\DOCS\CNM\CORP\10937 1:728/94 (2:59pm) -22
July 18, 1994
required to implement and effectuate the provisions of this Second Amendment and the Marina
Lease, as modified.
IN WITNESS WHEREOF, the parties have executed "this Second Amendment `as
of .the d-ate set forth in the first paragraph of this Second Amendment.
Signed, sealed, and delivered
in the presence of:
City of Miami Beach, a Florida
municipal corporation ^
By:
Name L v ' / ~~f
. G,o
Name:
cJe~oer, Mayor
Dated: ~ l I , 1994
Richard E. Brown, City Clerk
Tallahassee Building Corporation,
a Florida corporation
., ,~~y. ~~Lr+ `.
Name: ~ ~~yu ~S ,~. o~A~j~' Name 6 ~fL ! C • BENS o iY
Its: s R (/- P.
PCI':F:\DOCS~CNM~CORP~10937 1:788/94 (2:59pm)
Dated: ~°c/G -~ __ , 1994 _
FORM AFr= ROV'EU
-23- LEG`~~. DEPT.
d' ~ 1
July 18, 1994
LIMITED JOINDER OF ESCROW AGENT
Eckert Seamans Cherin & Mellott agrees to act as "Escrow Agent" subject to the
terms, conditions, provisions and limitations set forth in the First Amendment, including, but
not limited to, those set forth in Exhibit 6 to the First Amendment.
Signed, sealed and delivered
in the presence of:
a~
N e: KAQ.tirt ~. 5 B
t,~~
N Cl.i+ti i ~X t~4. S
Eckert Seamans Cherin & Mellott
By:~
Name:
P(7':F:IDOLS\CNM\CORP\10437_1:7128/94 (2:36pm) -24'
RESOLUTION NO. 171-94
A RESOLUTION OF THE CHAl[RMAN AND MEMBERS OF
THE MIAMI BEACH REDEVELOPMENT AGENCY
AUTHORIZING THE CI:[~~IRMAN AND SECRETARY TO
EXECUTE A SECOND AMENDMENT TO MARINA LEASE
AGREEMENT.
WHEREAS, on October 23, 1991, the City of Miami Beach (City) and the Tallahassee
Building Corporation (Lessee) entered into a First Amendment to the Marina Lease Agreement (First
Amendment), agreeing to modify certain terms and conditions of the Marina Lease; and
WHEREAS, pursuant to the First Amendment, on or before the date which is two years after
the date of execution of the First Amendment (or October 23, 1993) or within thirty days after
receipt of all necessary permits for the construction of the Dry Stack Facility for the Miami Beach
Marina, the Lessee has to elect to complete the final design and permitting, as well as construction
of, the Dry Stack Facility (the "Second Election Date"); and
WHEREAS, in order to provide the City and the Lessee with sufficient time to negotiate
mutually agreeable terms and conditions for a second amendment to the Marina Lease Agreement,
the Mayor and City Commission have approved prior extensions to the Election Date; and
WHEREAS, the City and Lessee have negotiated a Second Amendment to the Marina Lease
Agreement, attached as Exhibit A, which provides for, among other matters, the elimination of the
Dry Stack Facility, in exchange for the City being able to provide parking on-site in lieu of building
an off-site gazage and pedestrian overpass structures.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CE[AIRMAN AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairman and
Secretary are authorized to execute a Second Amendmen# to Marina Lease Agreement as attached
as "Exhibit A."
PASSED and ADOPTED THIS 2
ATTEST:
SECRETARY
a:je\e+r7ana.r~~
~ ~~_
dayof July
FORM APPROVED
REDEVELOPMENT AGENCY
GE~IER~AI~COUNSEL
BY ~_r
n.. ~_ 7'~.~'t~
1994.
Miami Beach
Redevelopment Agsncy
1700 Convention Canter Orive
Miami Beach, Florida 33139
Telephone: (305) 673-7183
Fax: (305) 673-7772
REDEVELOPMENT AGENCY MEMORANDUM NO.
TO: CHAIRMAN AND MEMBERS OF THE BOARD
OF THE REDEVELOPMENT AGENCY
FROM: LAURENCE FEINGOLD
CITY ATTORNEY ~~ ~
ROGER CARLTON
CITY MANAGER
RE: SECOND AMENDMENT TO MARINA LEASE AGREEMENT
DATE: JCJI.Y 28, 1994
As the Commission is aware, the City has been engaged in discussions with the Manna
Lessee (Tallahassee Building Corp), the City of Miami Beach Housing Authority and the Portofino
Development Group in regard to properties in the South Pointe Redevelopment Area While the
discussions with the Housing Authority and Portofino remain on-going, our offices and the Marina
Lessee have reached an agreement regarding an amendment to the existing Marina Lease. This
attached document styled "Second Amendment to Marina Lease Agreement" is completely subject
to the Commission's approval.
- The Amendment essentially addresses two issues: the dry stack facility that was to be built
by the Marina Lessee and the obligation of the City to provide parking for all Marina uses.
Currently, under the existing lease, the Marina Lessee has the obligation to construct a dry stack
storage facility immediately south of the Marina Core Building. The City has the obligation to
continue to provide all rewired parking for the Marina uses which has been and currently remains
on the areas to the north of the Core Building and to the south of Hope and Rebecca Towers. These
areas have been commonly referred to as the SSDI North and South parcels. When the Marina
Lessee expressed an interest in eliminating its obligation to build a dry stack storagc facility for up
to 250 boats, the City realized an opportunity to eliminate a potential requirement to provide up to
1,000 parking spaces on Block 81 in the Redevelopment Area, which is a block immediately east
of South Pointe Elementary. A parking structure on this block would also require a pedestrian
overpass from Block 81 over Alton Road and connecting into the Core Building. In the event the
SSDI North and South parcels undergo development, the City and the Lessee would lose the use of
these parcels for parking and the City's obligation to provide parking on Block 81 would come into
effect.
As the construction of a garage on Block 81 is neither economically beneficial to the City
nor does it represent sound planning for the area, the City has negotiated several options to provide
for parking on the overall Marina site. Option One would be to eliminate the dry stack facility,
provide surface parking on that azea and provide surface parking on North SSDI in the event we
continue to keep title to this land as a result of our negotiations with the Portofino
1
- Chairman & Members
-.. ~ ~ Second Amendment to Marina Lease Agreement
July 28, 1994
Page Two
Development Group. One hundred and fifty parking spaces would be part of the development of the
SSDI South property. Option Two would be to build a City parking structure on the area where the
dry stack was to be located and provide the remaining parking on both North and South SSDI
pursuant to our existing SSDI agreement which requires the developer to provide 200 parking spaces
on each of the North and South parcels, at the City's expense. Option 'T'hree contemplated by the
Agreement would be to have a surface parking lot where the dry stack facility was to be built and
to provide parking in a garage structure on North SSDI. Again, 150 parking spaces would be
provided on the SSDI south property.
The Agreement also provides for temporary lease payment reductions, the provision of retail
space if City garages are constructed, and increased rental payments to the City for the on-site
Parking.
Along with the Agreement is a map of the South Pointe area which locates the parcels
described above. Any minor modifications to the attached agreement that occur prior to the
Commission meeting of July 28 will be addressed at that time.
JD:jm
Attachment
a:\Jd\saala,ea
FIRST AMENDMENT
TO MARINA LEASE AGREEMENT
DATED OCTOBER 23, 1991
BETWEEN THE CITY OF MIAMI BEACH
AND TALLAHASSEE BUILDING CORPORATION
1. Recitals ....................................................7
2. Agreements and Obligations of Lessee ....................... .?
2.1 City's Parking Obligation ............................ .7
2.2 City's Access Obligation Prior To Termination
of Lessee's Interest in SSDI Property ................ .?
2.3 City's Access Obligation After Termination
of Lessee's Interest in SSDI Property ................ .8
2.4 Marina Slip Agreement ................................ 10
2.5 Lessee's Right to Use Area 2 ......................... 10
2.6 Binding Effect of Modified Lease and
Submerged Land Lease ................................. 11
2.7 Delivery of Indemnity Guaranty and Rent
Guaranty ............................................. 11
2.8 Dry Stack Facility Permits ........................... 11
2.9 Escrow of Core Building Improvements
Guaranty and Dry Stack Facility Guaranty ............. 12
2.10 First Election Date .................................. 13
2.11 Termination Procedure ................................ 14
2.12 Automatic Election Regarding Core Building
Improvements ......................................... 21
2.13 Core Building Improvements Scheduling;
Delivery of Core Building Improvements
Guaranty ............................................. 21
2.14 Costs of Core Building Improvements .................. 24
2.15 Second Election Date ................................. 24
2.16 Costs of Dry Stack Facility .......................... 26
2.17 Automatic Election Regarding Dry Stack
Facility ............................................. 26
2.18 Dry Stack Facility Scheduling; Delivery of
Dry Stack Facility Guaranty .......................... 26
2.19 Wave and Surge Problems .............................. 27
2.20 Lessee's Work Using City Contributions ............... 27
2.21 Replacement Fuel Tanks ............................... 29
2.22 Lessee's Environmental Indemnity ..................... 29
2.23 Security for `Environmental Indemnity ................. 31
2.24 Lessee's Release Concerning SSDI Development........, 31
2.25 City's Option to Provide Parking on SSDI
Property ............................................. 33
2.26 Bathroom Facilities .................................. 33
2.27 Operator of Marina ................................... 34
2.28 Demolition of Junior's Building ...................... 34
2.29 Security Deposit ..................................... 34
2.30 Relocation of Utilities and Other Facilities......... 36
3. Agreements and Obligations of the City ..................... 36
3.1 Status of Modified Lease ............................. 36
3.2 City Contributions ................................... 36
3.3 Funds Received For Clean-up Costs .................... 40
3.4 City's Obligation to Provide Parking Spaces.......... 40
3.5 City's Additional Obligation Concerning
Parking Spaces ....................................... 41
3.6 Parking Garage(s) .................................... 41
3.7 Pedestrian Overpass .................................. 42
3.8 Minimum Parking Requirements ................ 43
.........
3.9 Improvements Related to SSDI Documents ............... 43
3.10 Signage .............................................. 44
3.11 Relocation of Median Openings and Curb Cuts.......... 44
3.12 City's Environmental Indemnity .................. 45
.....
3.13 Estoppel Letter Regarding Submerged Land Lease....... 45
3.14 Lessee's Right to Use Logo and Name .................. 46
3.15 Assistance Regarding Governmental Approvals.......... 46
3.16 Liquor Permits ........................... 46
............
3
17 Project Coordinator
.
..................................
3.18 Extension of Submerged Land Lease .................... 47
47
3.19 Early Extension of Submerged Land Lease
at Lessee's Request ........................
.. 48
.
.......
3.20 Amendments of SSDI Documents .................... 48
.....
3.21 City's Obligation to Grant Easements ................. 49
3.22 Confirmation of Lessee's Release Upon
Termination of Modified Lease ........................ 49
3.23 Memorandum of Amendment ......................... 49
.....
3.24 Lessee's Right to Cross Baywalk with Equipment....... 50
3.25 Approval of Subleases ...................... 50
..........
3.26 Non-Disturbance Agreements ..................... 50
......
3.27 Obligation to Keep SSDI Mortgage in Good
Standing ............................................. 51
3.28 Title to Marina Site ....................... 51
..........
3.29 Cooperation Regarding Wave and Surge Problems........ 51
3.30 Designation of Parking Spaces ........................ 51
4. Tax Increment Financing ...................... 52
5 .............
Effective Date
.
.
6 ....
.....................................
Notices 55
.
7. ...................................................
Governing Law 55
............................................. 57
8. Provisions Severable ...................................... 57
9. Gender and Case ............................ 57
10. ...............
Captions
11. ..................................................
Exhibits and Sections 57
12 .....................................
Entire A
reement 57
.
13. g
..........................................
Relationship of this Amendment and the Marina Lease....... 58
58
14.
15 Amendments ................................................
Non-Waiver 58
. .... ..........................................
~ 58
16. Successors and
Assigns ........................... 58
17 .........
Construction
:
. .....
................................... .... 59
18. Time of the Essence ..........................
. 59
19. ........
.. .
Counterparts ...
~
20. ........................................
.
Further Actions
• 59
21. ........................................
.
Attorne
s' Fees
~~ 60
22 y
........................................
.
Arbitration
•~ 60
.
23. ........ ................................
.
Limitation on Liability of the Cit 61
62
24. y .......................
Limitation on Liability of Lessee ................. 64
25. ........
Mutual Rights and Obligations ............................. 65
26.
27 Authority ......................................... .
West Two F
t
f 66
. ee
o
Lot s. 15 through 20. .. ............... 66
2 8 . Other Amendments to Marina Lease . ?.C ~M
~~~?~!-, , , , , , , , ,
6 7
,
, , , , ,
178RL1320F~md1
08430.0001
FINAL
October 23, 1991
This First Amendment to Marina Lease Agreement (the
"Amendment" ) is made as of October .J "i, 1991 between the City of
Miami Beach, a Florida municipal corporation (the "City"), and
Tallahassee Building Corporation, a Florida corporation
("Lessee"). The Miami Beach Redevelopment Agency, a public
agency organized and existing pursuant to the Community
Redevelopment Act of 1969, as amended, Chapter 163, Part III,
Florida Statutes (1989) (the "Agency"),
has executed this
Amendment for the limited purposes as stated on page / /.
Recitals
A. The Miami Beach Marina located in the southwest portion
of the City adjacent to Government Cut consists of Areas 1, 2, 3
and 4 (the "Marina Site"). Legal descriptions of Areas 1, 2, 3
and 4 are attached as Exhibit 1.
B. The City owns Area 1, which consists of approximately
2.9 acres (the "Marina Uplands"). Located on the Marina Uplands
is a Marina Core Building (the "Core Building"). Area 2 consists
of submerged lands (the "Submerged Lands") leased by the City
pursuant to a Sovereignty Submerged Lancl Lease dated January 21,
1986 between the Board of Trustees of the Internal Improvement
Trust Fund of the State of Florida and the City, as amended (the
FINAL
October 23, 1991
"Suu~iierged Land Lease"), and certain concrete piers and other
marina facilities which are constructed on the Submerged Lands
(the "Marina"). Area 3, which is owned by the City and the
Agency, is located south of the Marina Uplands. Area 3 currently
consists of vacant land, temporary parking facilities and
temporary bathroom and laundry facilities. Area 4, which is
owned by the Agency, is located north of the Marina Uplands.
Located on Area 4 is a two-story concrete building housing
several marina-related activities (the "Junior's Building"),
temporary parking facilities, underground fuel tanks currently
serving the Marina (the "Underground Fuel Tanks") and certain
other improvements, including temporary bathroom and laundry
facilities. Collectively, Areas 3 and -1 are known as the SSDI
Property (the "SSDI Property").
C. The City leased Areas 1, 3 and 4 to Carner-Mason
Associates, Ltd., a Florida limited partnership ("Carner-Mason"),
pursuant to a lease'"agreement entered into June 24, 1983 (the
"Marina Lease"). The Marina Lease also granted to Carner-Mason
certain rights to use Area 2.
D. The City, the Agency, and South Shore Developers, Inc.,
a Florida corporation ("SSDI"), pursuant to a Stipulation and
Order dated July 1, 1985 entered in litigation styled South Shore
-2-
FINAL
Uctuber 23, 1991
Develo~~ -r<~, nc r ; Lzp~youth Shore
Iric.. and VenrnrP on E'F_~_._
Inc. d%b/a BT South ShnrP ASGC~~-iaraG
ff~fa BT AS~OCiataG v
C_i.ty of Miami Beach_ Florida and Miami Beach RedevPloFmen*-
Agency, Case No. 82-24526 (19), in the Circuit Court of the 11th
Judicial Circuit in and for Dade County, Florida (the
"Stipulation and,Order"), executed:
1. a Mortgage dated July 24, 1985 executed by the
Agency in favor of SSDI, recorded July 31, 1985 in Official
Records Book 12590, Page 2786, of the Public Records of Dade
County, Florida (the "SSDI Mortgage");
2. a Contract of Sale dated July 24, 1985, recorded
July 31, 1985 in Official Records Book 12590, Page 2795, of the
Public Records of Dade County, Florida, as amended by Amendment
of Contract of Sale dated April 17, 1986, recorded April 30, 1986
in Official Records Book 12873, Page 2602, of the Public Records
of Dade County, Florida (the "Contract of Sale");
3. the SSDI Development Agreement dated April 17,
1986, recorded April 30, 1986 in Official Records Book 12873,
Page 2612, of the Public Records of Dade County, Florida (the
"Development Agreement"); and
4. a Parking Agreement dated April 17, 1986,
recorded April 30, 1986 in Official Records Book 12873, Page
-3-
FzxnL
October 23, 1991
2731, of the Public Records of Dade County, Florida {the "Parking
Agreement").
Collectively, the Stipulation and Order, the SSDI Mortgage,
the Contract of Sale, the. Development Agreement and the Parking
Agreement are referred to herein as the "SSDI Documents". One of
the purposes of the parties entering into this Amendment is to
reconcile certain potential conflicts between the SSDI Documents
and the Marina Lease.
E. Pursuant to a foreclosure of a mortgage on the Marina
Lease, Lessee acquired the interest in the Marina Lease
previously owned by Carner-Mason.
F. The City and Lessee have agreed to modify certain terms
and conditions of the Marina Lease, as set forth in this
Amendment. Such modification is a material inducement for Lessee
to enter into this Amendment. The Marina Lease, as amended by
this Amendment, is referred to herein as the "Modified Lease".
G. Lessee is' a wholly-owned subsidiary of Heller
Financial, Inc., a Delaware corporation ("Heller"). Heller has
agreed to execute the following guaranties with respect to
certain obligations on the part of Lessee under the Modified
Lease (collectively, the "Guaranties"):
-4-
FINAL
October 23, 1991
1. Rent Guaranty, a copy of which is attached as
Exhibit 2 (the "Rent Guaranty"j;
2. Completion Guaranty, a copy of which is attached
as Exhibit 3 (the "Core Building Improvements Guaranty");
3. Completion Guaranty, a copy of which is attached
as Exhibit 4 (the "Dry Stack Facility Guaranty"); and
4. Indemnity Guaranty, a copy of which is attached
as Exhibit 5 (the "Indemnity Guaranty").
The Guaranties, all of which are in favor of the City,
shall be or become effective and shall remain effective only as
provided by their respective terms and by the terms of this
Amendnieut. Iteller's execution and delivery of the Guaranties in
accordance with the terms of this Amendment are material
inducements for the City to enter into this Amendment.
H. Certain issues concerning the Marina Site and/or the
Marina Lease have been involved in litigation styled as follows:
,~.~~ hen Garner, rwi n H Mason, and is, Inc , a F o i cja
corporation, as gen~_partnerG in arnPr Mason AsGnriatPG
I~:c1, , ate] o i da 1 i mi tP~ nartnerGh i ~, d/~~~ Miami Beach Marina v
C~~Y of Miami Beach Florida, a Florida municiga corao atin
~ Miami Beach Rede~Pl npme„t A,ge_-ncv,~,puhl ; c- a encX exi Gt i nrr
tinder t_h_e lawG of lc~ritj~, Case No. 85-35879-CA-19 and Case No.
-5-
FIAAL
October 23, 1991
86-10965-CA-19; Heller Financial Inc., a Delaware
Irwin H. Mason, Victoria Mason, and Stephe
individually, Case No. 89-3].952-CA-19; Heller Fins
Delaware corporation v. Carner-Mason Associates,
limited partnership, Case No. 85-53546-CA-18; and
nc,, Case No. 91-40466-CA-23. Collectively, this litigation is
referred to herein as the "Marina Litigation." The parties to
the Marina Litigation have entered into a Settlement Agreement
dated October 23, 1991 (the "Settlement Agreement"). Under the
terms of the Settlement Agreement, the parties to the Marina
Litigation have agreed to dismiss all of the Marina Litigation
with prejudice and to deliver releases and other settlement
papers as described in the Settlement Agreement. Such actions
pursuant to terms of the Settlement Agreement are a material
inducement for the City, the Agency, and Lessee to enter into
this Amendment, and for Heller to execute the Guaranties as
provided by the terms of this Amendment.
In consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree
that the Marina Lease is hereby amended as follows:
-6-
FINAL
October 23, 1991
Terms
1. recitals. The foregoing recitals are true and are made
a part of this Agreement.
2. Aareements and Ob gatinn~ of Lessee. Lessee hereby
acknowledges and agrees with the City as follows:
2.1 03tv's Parking Obligation, Lessee acknowledges
and agrees that Sections 3.4, 3.5, 3.6 and 3.8 of this Amendment
are sufficient to satisfy the City's obligation to provide
parking under the Modified Lease. The City shall have the right
to charge users for the use of such parking pursuant to said
Sections, provided that such charges shall be generally
consistent with those charges made by the City at comparable City
parking facilities.
2.2 Oitv's AcceGG f~hli$~tinn prior To Termination of
L~~~_.~_.Zilreregt in SSDI proFerty. Lessee acknowledges and
agrees that until such time as Lessee's interest in the SSDI
Property is terminated pursuant to Article I, Paragraph 3, of the
Marina Lease, the Modified Lease and the following instruments
are sufficient to satisfy the City's obligation to provide
utility and public access to the Marina, provided that these
instruments are enforceable by Lessee and that Lessee shall have
-7-
FINAL
October 23, 1991
the full right to use the easements purported to be created by
these instruments in accordance with their respective terms:
2.2.1 Grant of Easement dated May 2, 1986,
recorded May 9, 1986, in Official Records Book 12883, Page 2207,
of the Public Records of Dade County, Florida;
2.2.2 Easement Deed dated July 23, 1984,
recorded August 24, .1984 in Official Records Book 12248, Page
3129, of the Public Records of Dade County, Florida; and
2.2.3 Easement Deed dated July 24, 1984,
recorded August 1, 1984 in Official Records Book 12223, Page 853,
of the Public Records of Dade County, Florida.
2.3 ci,~y's Access Obl gation After Termination of
Lessee's Interest in SSDI Pro,Fer t-. Lessee acknowledges and
agrees that at such time as Lessee's interest in the SSDI
Property is terminated pursuant to Article I, Paragraph 3, of the
Marina Lease, the instruments described in Sections 2.3.1 through
2.3.3, upon execution, delivery and recording, will be sufficient
to satisfy the City's obligation under the Modified Lease to
provide utility and public access to the Marina, provided that
(i} such instruments are enforceable by Lessee and Lessee shall
have the full right to use the easements purported to be created
by these instruments in accordance with their respective terms;
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October 23, 1991
(ii) Lessee is able to obtain title insurance insuring its rights
under saki easements without exception for encumbrances or other
matters reasonably objectionable to Lessee; and (iii) the City
andfor SSDI or its Guccessor shall execute and deliver to Lessee
such additional instruments which are contemplated by the
easements described in Sections 2.3.1 through 2.3.3, so as to
grant Lessee rights to use said easements. Thereafter, Lessee
shall have, with respect to the property burdened by such
easements, the same insurance and indemnity obligations as those
set forth in the Modified Lease with respect to the Marina Site:
2.3.1 Baywalk Easement to be executed by SSDI
pursuant- to Paragraph1 10(b) and Exhibit F-1 of the Development
Agreement;
2.3.2 Access Easements to be executed by SSDI
pursuant to Paragraph 10(b) and Exhibit F-2 of the Development
Agreement; and
2.3.3 public pedestrian access easements (or
other form of permanent public pedestrian access reasonably
acceptable to Lessee) to be executed by SSDI, in order to provide
permanent public pedestrian access from Alton Road to the Marina
Site pursuant to Paragraph 10(c) of the Development Agreement as
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uctober 23, 1991
shown on the Overall Site Plan attached to the Development
Agreement as Item 2 of Exhibit E.
2.4 Marina S1 D Agreement. Within 180 days after the
execution of this Amendment by all parties, Lessee shall execute
an agreement relating to the use of marina slips by occupants of
the SSDI property in a form and content mutually and reasonably
acceptable to City, Agency and Lessee (the "Marina Slip
Agreement"). The Marina Slip Agreement shall be assignable in
accordance with its terms. Said Agreement shall include
provisions to provide the City with a right of first refusal for
50~ less one of the wetslips and dry stack storage slips, or such
other number as may be required to ensure that the Marina shall
always be considered a public marina, provided that the Lessee
shall be protected from provisions that would interfere with the
Marina operations and shall further protect the Lessee's right to
operate and lease transient slips at the Marina.
2.5 Lessee's R ght to Use Area 2. Lessee
acknowledges and agrees that subject to the City's. obligation
under Section 3.18 to cause the term of the Submerged Land Lease
to be extended, the existing terms and conditions of the
Submerged Land Lease, if in good standing, satisfy the
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October 23, 1991
requirements of the Modified Lease with respect to Lessee's right
under the Modified Lease to use Area 2.
2.6 gjnding Effect of Modified Lease and Submera ~
Lid Lease. Lessee acknowledges and agrees that upon execution
of this Amendment, it shall be bound by the terms and conditions
of the Modified Lease, including, without limitation, those terms
acid conditions concerning maintenance of the Baywalk (as
subsequently defined) after the Baywalk Construction (as
subsequently defined), and by the applicable provisions of the
Submerged Land Lease.
2.7 D~liverv of Indemnity Guaranty and Rent Guaranty.
Contemporaneously with the execution of this Amendment, Lessee
shall cause Feller to execute and deliver the Indemnity Guaranty
and the Rent Guaranty to the City.
2.8 pry Stack Faci ;ty Permits. Upon execution of
this Amendment, at no cost or expense to the City other than
administrative costs and expenses, which shall include travel
costs of City employees (collectively, "Administrative Costs").
Lessee shall promptly apply for and use due diligence to obtain
all necessary permits for construction of the following: (i) not
less than 250 dry stack units; and (ii) sufficient upland and
waterside facilities for the operation of a dry stack staging
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October 23, 1991
area (cull~:ctively, the: "Ury Stack facility"); provided, however,
that L,ess~:e's obliyati.on to use due diligence to obtain such
Cx:rnii i s :~I,a l l fermi Hate: i n the event that l,ussoe d~;l.ivers a
`l'errnir-ation Notice (as subsequently defined) to the City pursuant
to the t~:rni5 of this Amendment.
2 . 9 Escrow ~~~Q~_~~~~ng Imc~rovement~~~~ty~~
Dry Stack Facility Guaranty. Contemporaneously with the
execution of this Amendment, Lessee shall cause Heller to execute
and ci~:1.i vii tl,e Core C3uildiny Improvemer-ts Guaranty and tl,r. Ury
Stack facility Guaranty to Fine, Jacobson, Schwartz, Nash, L31ock
& Enylarid, as escrow agent (the "Escrow Agent") to be held irr
(:SC:l"'O4J vncl cic:l i ver~d oi• surrendered i n acc:ordancc: with the c:sciow
provi~iuus sit forth in Lxlri.hi.t 6 (the "L•'scrow Pruvisi.ons") and
with Clio terms and conditions of this Amendment. In the event
that: Lu~sc:c wishes to sell. or otherwise transfer, assign, or
c:onvuy uuy of its inte:rc:st in the Modified Lease of any of its
cap.itaL stock, except, in any such case, to a subsidiary or
~ffi.li.atc: 01 Ileller ("Assign the Modified Lease") pursuant to the
provisions of Section 16 hereof, during such period as the
Guaranties are effective or are subject io becoming effective
pursuant to the terms of this Amendment, the City shall not be
ruyul,_~:cl to re:le:ase 11u11ur lruw the forms of tlru Guar_antie:s until.
the F~uLCI)aser or successor has provided loiters
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October 23, 1991
of credit, guaranties, or other comparable substitute collateral
reasonably acceptable to the City (the "Substitute Guaranties")
in order to secure the obligations covered by the Guaranties to
the same extent provided in such Guaranties subject to the terrr:s
of this Ani~ndment. Upon approval of tho Substitute Guaranties,
the Substitute Guaranties shall be delivered to the Escrow Agent
or the City, as the case may be, and the City or the Escrow
Agent, as the case may be, shall return the Guaranties to Heller.
2.10 Fist Election Date. On or before the date which
is one year after the date of execution of this Amendment (the
"First Election Date"), Lessee shall elect to do one of the
following:
2.10.1 terminate the Modified Lease by sending
to the City and Escrow Agent on or before the First Election
Date, a written notice of termination and a Memorandum of
Termination of Lease in substantially the forms set forth in
Exhibit 7 (collectively, a "Termination Notice"); or
2.10.2 pursue subleases for the Core Building so
that:
2.10.2.1 within six months after the
First Election Date, Lessee shall have entered into subleases
(which for purposes of this Section 2.10.2 may contain liquor
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October 23, 1991
license contingencies) for not less than 50~ of the net leasable
square footage of the Core Building; ~~rovided, however, if Lessee
fails to enter into such subleases within said six-month period,
Lessee shall, at Lessee's option, either (i) pay to the City upon
expiration of said six-month period the sum of $75,000 as
additional rent,, or (ii) terminate the Modified Lease by sending
a Termination Notice to the City and Escrow Agent, in which event
the termination provisions or Section 2.11 shall apply; and
2.10.2.2. within 12 months after the
First Election Date, Lessee shall have entered into subleases fer
not less than 75$ of the net leaseable square footage of the Core
Building, in which event the $75,000 described in Section
2.10.2.1, if previously paid to the City, shall be returned to
Lessee upon expiration of the twelve-month period. If Lessee
fails to enter into such leases in accordance with this Section
2.10.2.2, the Modified Lease shall be deemed terminated and all
provisions relating•to the rights of the City and Lessee upon
termination provided for in Section 2.11 shall apply.
2.11 Terminat;on Procedure. In the event the Modified
Lease is terminated pursuant to Sections 2.10.1, 2.10.2, or
2.15.1, Lessee and the City agree t}iat the following provisions
shall apply:
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October 23, 1991
2.11.1 as of the date specified in the
Termination Notice, which date shall be not less than 10 days and
not more than 30 days after the delivery of the Termination
Notice (the "Termination Date"), Lessee's interest in the
Modified Lease and all of the leasehold improvements on the
Marina Site, including the Core Building (but subject to the
provisions of Section 2.11.5), shall be terminated and shall
thereafter be deemed the property of the City;
2.11.2 Lessee shall surrender possession of the
Marina Site to the City and the Agency on or before the
Termination Date;
2.11.3 on or before the Termination Date, Escrow
Agent and the City, as the case may be, shall return the
Guaranties to Heller, except for the Rent Guaranty and the
Indemnity Guaranty, which shall remain in effect in accordance
with their respective terms. The Guaranties which are returned
shall be deemed cancelled as of the Termination Date;
2.11.4 as of the Termination Date, Lessee, the
City, and the Agency shall be released from any further liability
under the Modified Lease, except that upon termination (i) Lessee
must cure any then existing defaults of Lessee under the Modified
Lease if such defaults have a material adverse effect on the
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October 23, 1991
City; (ii) the City shall continue to be liable to Lessee under
Section 2.11.5.1 through Section 2.].1.5.5; (iii) Lessee shall
cause to be satisfied any liens or encuribrances caused or created
by Lessee on the City's fee title to the Marina Site; (iv) and
the insurance and indemnity provisions of the Modified Lease
shall survive but solely as they may relate to any claim arising
from an act orsomission which occurred prior to the Termination
Date;
2.11.5 if prior to the Termination Date, Lessee
has entered into any sublease or subleases of the Core Building
(the "Subleases") with any sublessee or sublessees (the
"Sublessees"), the Subleases shall be deemed upon termination of
the Modified Lease to be assigned by Lessee to the City (each
Sublease shall require the Sublessee to attorn to and recognize
the City as the sublessor under the Sublease in the event of a
termination of the Modified Lease); provided, however, that if
prior to such termination of the Modified Lease, Lessee has
caused the Core Building to be improved at Lessee's expense to
accommodate the Sublessees, the following additional provisions
shall apply:
2.11.5.1 Lessee shall be entitled to
receive from rent payments under the Subleases, as and when they
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are received by the City, after the termination of the Modified
Lease, ice. i mbursenieiit of tenant improv~:ments paid for by Lessee
(whether directly or in the form of advances to the Sublessees)
for the build-out of the space (wl-ich may include related
irnpr~vaments outside of the tenant space) pursuant to the
Subleases. Less,ee``s projected cost for such tenant improvements
or advances shall be disclosed to the City upon Lessee's
submission to the City of the respective Subleases for the City's
approval. Lessee shall provide evidence of the payment of such
costs or advances after they are incurred, and the City and
Lessee shall promptly agree in writing as to the exact amount of
the actual costs or advances after they are incurred. '1'1,~
reimbursement to Lessee of said cost of tenant improvements shall
include a felt percent (lU'd) per annum simple interest factor
accruing from the date of the commencement of the respective
Strbl.eases. The cost of the tenant improvements plus the interest
factor is collectively defined as the "TI Cost";
2.11.5.2 The repayment of the TI Cost
to. Lessee for each Sublease shall be over a term which strall be
the .lesser of (i) the remaining term (nut including option terms)
~~t thu a1~l~iic:able SuVleaSe as of thy: date, of terniitlation of the
Modified Lease, or (ii) five (5) years from the date of the
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October 23, 1991
terminat.i~n of the Modified Lease; provided, however, Lessee
shall not receive more tliaci eighty percent (80$) of the gross
rental payments under the Sublease as ar~d when they are paid. If
the TI Cost cannot he amortized and repaid within the lesser of
the remaining term of the respective Sublease or five (5) years
due to the eigh~.y percent ($0~) limitation described above, and
if the Sublease is for a term or is extended for a term of longer
than Live (5) years after teruii[iation of the Modified Lease, then
the repayment to Lessee of the TI Cost shall be paid out over a
term longer than five (5) years subject to the eighty percent
(80~) limitation until Lessee has received one hundred percent
(1000 of the TI Cost. However, if one hundred percent {100`0 of
the TI Cost i.s not received by Lessee l,ursuant to the provisions
of this Section 2.11.5.2, then the provisions of Section 2.11.5.3
shall apply;
2.11.5.3 If a Sublease existing as of
the date of the termination of tYie Modified Lease terminates
prior to the expiration of the original term of such Sublease, o,-
any extension thereof, or expires in accordance with its terms,
so that Lessee has not received one hundred percent {1000 of its
TI Cost with respect to such Sublease, Lessee shall be entitled
to receive a portion of the rents to be derived from any
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October 23, 1991
suLstil:uto s-tbleas~. relati.ricJ to ttte Space occupied by the:
ui i y i n,1 J JItL~ I usse:c unt_ i 1 1,~:J:,ut, 1-as ruc~ ivud untJ hundred percent
(lUU~b) ut its TI Cost, on the following basis: {i) Lessee shall
be entitled to receive from the City, as and when the City
receives the gross rents paid under such substitute sublease (the
"Substitute Sublease cross Rents"), an amount equal to sixty-five
percent (65~) multiplied by the Substitute Sublease Gross Rents,
multiplied by a fraction, the. nume=ratoi of which is the TI Cost
and the denominator of which is the total of the `i'I Cost plus the
cost of the additional tenant improvements made in order to
prepare the space for the new tenant; these provisions shall
apply to each successive sublease until Lessee has been fully
reimbursed its TI Cost; and {ii) in the event a substitute
(sub)lessee leases only a portion of t-he space occupied under the;
oriyi.nal Sublease or in the event thL Substitute lessee occupies
more space than that which was the subject of the original
Sul~le~t~e, Le:55ee's stt~lre ut rants p.lysble under the sub5litutc
sublease shalt be as set forth in (i) above but further prorated
on a square foe basis for the space leased by the substitute
(su1J)lessee which was previously the subject of the original
Sublease; provide d, however, that notwithstanding the foregoing,
i f a substitute sulJlessee (5 ) OCC Ilp l Cr:i the same space as the
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October 23, 1991
+71"l.l~li1<~~ Sll~~}ESSee wi.~h no further tenant improvements, ether
l:hai, yaneral c_:lean-up, repainting, repair and maintenance, Lessee
sha 1 i t~~ E~aid eig}ity percent ( 80$ ) of all gross rental payments
lilad8 under the substitute sublease(s) until it has received one
hundred percent (100) of the TI Cost;
2.11.5.4 After the .Modified Lease is
taraninated, the City shall not modify any of the economic terms
of any Sublease existing as of the Termination Date so as to
cau5a a decrease in the total payments or the periodic payments
to Lhti~ sublessor under the S~iblease as provided by this Section
2.11.5 unless the City elects to make up the difference;
2.11.5.5 To the extent the payments
<]c:SCriLcd in this Section 2.11.5 are actually paid by the
5ublessee(s) or substitute sublessees, the City shall remain
ubii~~a~.ed to ma}ce such payments even if the City assigns or
tiuji5t~r5 a.l.l or any portion of t-he Marina Site and/or the
SuLlea~e(5} or substitute subleases to any other party. The
furec~oi~~y shall survive termination of the Modified "Lease; and
2.11.6 If prior to such termination of the
Modified Lease, Lessee has applied for or obtained any permits,
made or obtained any design plans, and/or entered into any
cu,iti-act.s rii th respect to L-he construction of the Core Fiuilding
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October 23, 1991
Inipruv`ments, the Dry Stack Facility or any improvements pursuant
to Section 2.20 and funded by the City pursuant to Section 3.2,
Lessee: stroll, at the City's option, execute assignments of all of
its interest in arry, or at the City's option, all of the
foregoing, to the extent. such interest is assignable, to the City
on a non-recourse, quit-claim basis, and Lessee stroll be released
from ony further obligations under this Amendment or otherwise
with -respect to suc}i construction, and shall have no liability to
the City for unpaid fees with respect to such permits, plans, or
contracts. Lessee s}call use its best efforts to include, in all
contracts of a material nature entered inLu ray L~SSee wi.t}~
respect to the improvements described in this Section 2.11.6, a
provision for the assignment contemplated under this Section
2.11.6.
2.12 Automatic Election Bggardiny Core Building
Improvernen#~~. Lessee and the City acknowledge and agree that in
the event that Lessee fails to send a Termination Notice prrrsuan~:
to Section 2.10.1, Lessee shall be deemed to have elected to take
the actions described in Section 2.10.2 concerning the Core
Lau i_1~1 } ny Improvements .
2.13 Core Building Improvements Scheduling; Delivery
of Core Building Improvements Guaranty. Lessee arrd the City
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October 23, 1991
ayrea that in the event that Lessee elects to take the actions
describad i.n Section 2.10.2 concerning the Core Building
Improvements (by failing to send a Termination Notice pursuant to
Section 2.10.1), then, tre.reafter:
2.13.1 for each Sublease approved by the City
and entered into pursuant to Section 2.10.2 and after all lease
contingencies (contingency periods shall not exceed sixty (60)
days except that liquor license contingency periods may be longer
if reasonably required) have been met, the following schedule and
conditions shall be applicable:
2.13.1.1 design the tenant space anti
apply for building permits within 90 days after such contin-
gencies, i_f any, have been satisfied;
2.13.1.2 use due diligence in seeking
issuances of permits and cooperate with Building Officials to seek
to have the required perrnits issued within 60 days thereafter;
and
2.13.1.3 con-imence construction within
60 days (ur such longer period as is reasonably acceptable to the
City based upon the requirements and terms of the Sublease in
question) following issuance of permits and continue construction
in acc~~rdarice with Section 301.3(f) of the South Florida Building
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October 23, 1991
~'~~~I,~ I'ltlti I',~li t i„ti (I i,u "Llui I~linc~ ('. ,c 1.:") unli 1 ~:~,u~t,l~:t.,:. -~~
coiupl.yirrg with the above schedule, Lessee shall retain all rights
Lessee may have under the Building Code; and
2.13.1.4 only tenant spaces containing
more than 10,000 square feet shall require City approval pursuant
t:o Mutually Acceptable Plans; the foregoing shall apply to all
space iri the Core Building. (It being the intent of t}ie parties
that r_his provision shall include tl~e restaurant in the Core
Building} ; and
2.13.1.5
electrical; HVAC and Drywall witr
than 10,000 square feet shall
per. Lur:uiaricc: bonds } w}rich shall
the foregoing shall pertain to
13uildiny; and
only contracts for plumbing;
rin tenant spaces containing more
provide for 100$ payment and
nan,a L}re Li ty as a cu-obl i.r~E~.;
all construction in the Cora
2.13.2 the Core Building Improvements Guaranty
s}~all Lacome immediately effective, and Escrow Agent, upon
confirmation of Lessee's election to take the actions described
in Section 2.10.2 concerning the Core Building Improvements,
shall deliver the Core Building Improvements Guaranty to the
City, upon completion of the Core Building Improvements, for
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October 23, loll
each sublease approved by the City and entered into pursuant to
Ste:l.iun ~. lU.:.' which cuinpletiun shall k~e deemed to have occurred
when Certificates of Occupancy for all tenant space covered by
said subleases have been issued by the appropriate governmental
authority, the Core Building Improvements Guaranty shall be
returned by the City to Heller.
2.14 ~tG of Core Building Improvements. Lessee and
the City agree that all design and construction costs for the
Care Building Improvements shall be at the sole cost and expense
~f Lessee; provided, however, that Lessee shall not be obligated
to expend more than $3,500,000.00.
2.15 Second Election Date. On or before the date
which is two years after the date of execution of ttris Amendment
or wi.ttii.n 30 clays after receipt of all necessary permits for the
cuii5 truc c: ion ut the lliy S tack Fac i 1 i ty, whichev~:r is ~:arlier, bu t
ire nu ~:v~:nt :;,,over than ori~: year attar the date of execution of
this Aiuendmerit (the "Second Election Date"), Lessee shall elect
to do one of the following:
2.15.1 terminate the Modified Lease by sending a
`Termination Notice to the City and Escrow Agent on or before the
Second ~:lection Date, in which event the termination provisions
of Sec~ion 2.11 shall apply; or
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October 23, 1991
2.15. 2 ~1 i l igent ly ,~r~rnl, I ate the E i.rra.l pies igrt anc.i
permitting (it such design nncl permitting i_s then not completed),
and construct the Dry Stack Facility and place it into operation
in accordance with the following schedule, subject to
yuvernnrental approvals, and in acc:urdance with E~lans, contracts,
and bonds approved by the City pursuant to the procedure outlined
in Exhibit 8 ("Mutually Acceptable Pl,ns and Contracts"):
2.15.2.1 enter into a single
construction contract for the Dry Stack Facility wittlin sixty
(bU) days ul the issuance of all c,ecessary perruits, whi_oti
contract shall provide for 1U0~ payment and performance bond(s)
that shall name the City as co-obligee;
2.15.2.2 commance construction within
one hundred twenty (120) days after execution of the construction
contract or such longer period of time as the City may reasonably
agree to based upon such factors as material availability and
fabrication requirements;
2.15.2.3 diligently complete construc-
tiott pursuant to the Section 3U4.3(t) of the Building Code art~i
diligently enforce the construction schedule set forth in the
contract with the general contractor; and
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F1NAL
Ucto>Jer 23, 1.991
2.]5.2.4 place the Dry Stack Facility
i„ ~,L,u,ul.ic,-t ariLhi-- 30 cl~~ys after i:~suanc:e of all necessary
ut,u,:at i,,,~ l,ur't,-i l_s (t.hc_ "Ur y ~l_ack Foci l i t y CompJc.tiun Uut.c;") Ort
(.I,~ Dray :;t~c.l: 1'aci 1. i t_y Corupleti-on Date t:he City stall retuY:n the
Il- y ;;1 ,,, 6. l~',,,: i I i 1 y (;--~,- ,,nt y t ~, llc:l lc:--.
2.16 Cos~~_Q~p~,_~tac~l~aci~~X, Lessee agrees that
al.l clesiyu and construction costs for the Dry Stack Facility
slra l l,u at the sole cost- and expense of Lessee; provided,
huwc.:v~i:, tl-~t Lessee sl-alJ not lac: ol.,liy.~teci to exE~c:ncl route: than
$3,UUC),uuU.UO.
. 1 7 $1>ElcQttl~lr~.~_1.:15~~1r)1QI1_$~;3~d~s~~:tig._~1_X.._;~~s~~)s IL:s~~l1 ~Ly..
I~cs~sc~i: ~,~:ki,uwlc:cly~;s ~u~l ~~c~tc.c:s that 1n Lltr: t;vc,t,l_ that l,usst't;
t,~i Is 1., :;c:,,,t ~~ '1'csr,uir,~t.iun Nvticu pursuant t_u ;ic.ct.ic,n 2.15.1,
Lessee ::hv 1 1 Le deeu,ec] to have elected to take tl-e actions
~J~.sc.:r:.i t~c:~J i -, ~uc.tion 2 . 1 S . 2 cu-,cerni t-y tl,c Dry Stac:lc 1~'acil ity.
2. lf:t pr~__~LacL--...i=~c~l.itX- ~c:~}edu~~I)<9.i---Qc=~~`ie~X--°~ --p?~Y
~t;~cl; h"~,_r.11.~tX ~ii~~artty. l~c~ssee a<~reus that Jtr t_h~: c~venl: thr~l:
l,~:sseu t:luc-:l_s Lo t_u}~:c l_l-u acLiuns c1~:5c~cit~~:c1 in :iec.tic,n 2.15.2
c,our;~~n i ny the Dry Staclc l~acil i ty (t)y faJ ling to send a
'1'ui-ui.n~t_i,.~n Nuticc: pursuar-t Lu 5t:c;ti.urt 2.15.1)
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FINAL
October 23, 1991
2.18.1 Lessee shall comply with the Dry Stack
Facility Scheduling provisions of Section 2.15.2; and
2.18.2 the Dry Stack Facility Guaranty shall
become immediately effective, and Escrow Agent, upon confirmation
of Lessee's election to take the actions described in Section
2.15.2 concerning the Dry Stack Facility, shall deliver the Dry
Stack Facility Guaranty to the City.
2.19 Wave and purge Problems. Lessee acknowledges and
agrees that the Marina has existing wavy and surge problems which
have been inspected by Lessee to its satisfaction, and Lessee
hereby releases the City from any ].lability to it concerning such
existing problems.
2.2U Lessee's Work Usin~~,ty Contri.b~itiong. At iio
~.a~t ~~i~ ~xpen5e to Lessee and solely from City Contributions (as
5libseguently defined) provided by L-lie City in accordance with
Section 3.2, Lessee shall diligently pursue permits for, design
and complete the following items consistent with a first class
marina in accordance with Mutually Acceptable Plans and
Contracts, subject to governmental approvals: (i) restoration of
the shoreline in a manner substantially similar to that approved
in DERM Permit No. CC-776 (the "Shoreline Restoration") as more
partic~al.arly described on the plans prepared by ARBAB
Ei~gi_neeri.ny, Inc. dated June 20, 1988 (Lessee shall enter into a
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FINAL
October 23, 1991
Siclylu c:ur~tLact for the Shoreline Restoration, which contract
shall provide for 100$ payment and performance bond(s) that shall
name the City as co-obligee); (ii) construction (the "Baywalk
Construction") of a baywalk with appropriate supporting
facilities, including, but not limited to, lighting, landscaping
and furniture, covering the entire width of the baywalk easement,
it being the intent that the baywalk will be constructed as a
permanent improvement in Area 1 (25 feet wide) and behind Hope
acid Rebecca Towers ( 40 feet wide ) and constructed as an interim
facility on Areas 3 and 4 (as required to link the existing
facilities) in the area abutting and consistent with the
Shoreline Restoration (the "Baywalk") (all contracts for Baywalk
Construction shall provide for 100 payment and performance
bond(s) t}iat shall name the City as co-obligee); (iii)
completion, can a timely basis, of the environmental clean-up as
outlined and described under DER Facility No. 138$38561 {the
"Clean-up"); and (iv) removal of the Underground~Fuel Tanks, if
required in connection with the Clean-up. The Baywalk
Construction, the Shoreline Restoration, the Clean-up, removal of
the Underground Fuel Tanks, if required, and any other
construction using City Contributions shall commence, in each
~'~l ~,i t., WlI IIi 11 ~~~) t}c1 ~J :,~ (]~Ll!I 1:i :i lJ al (1c. 1: lIL .lI I Iil!C: t~:i 'u airy (~()V ~;C nl1ll: Iltc]}
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approvals (but in no event sooner than 30 days after the City has
appropriated the necessary funds and has notified Lessee of such
appropriation), and shall continue in accordance with Section
304.3(f) of the Building Code until complete, without waiving any
ot}ier rights Lessee may have under the Building Code, unless
Lessee elects to terminate the Modified Lease pursuant to
Sections 2.10 or 2.15, in which case Lessee shall be relieved of
any further responsibility for this work. Lessee's obligation to
construct the improvements described in this Section shall always
be conditioned upon City Contributions being available to Lessee
to pay for same. To the extent allowed by law, contracts for
construction utilizing City Contributions for work permitted
under this Section 2.20 and Section 3.2 other thaci Shoreline
Restoration and Baywalk Construction shall not require payment or
performance bonds.
2.21 Bg„p~acement Fuel TankG. Lessee shall install
replacement fuel tanks at such time as the Underground Fuel Tanks
are removed, if required, as described in Section 2.20.
2.22 Lessee's Environmen at Indemnity. To a maximum
aggregate total amount which shall in no event exceed
$1,000,000.00, Lessee shall indemnify, hold harmless, and defend
the City and the Agency acid their respective officers and
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October 23, 1991
employees against all claims, litigation, damages, liability,
attorneys' fees and costs {including those for appellate
proceedings and those of paralegals and similar persons), and all
other expenses related to, growing out of, or arising from the
violation at, on, or under the Marina Site of any federal, state,
regional, or local statutory or common law or regulation relating
to pollution or protection of the environment (collectively,
"Environmental Laws"), to the extent such violation occurs by
reason of the operations of Lessee or its officers, employees,
agents, contractors, .licensees, sublessees, managers, operators,
or invitees on the Marina Site after October 17, 1989. The
foregoing indemnity shall not require Lessee to indemnify the
City for claims, litigation, damages or liability arising out of
any action or inaction of the 'City or the Agency or their
respective officers, employees, agents or contractors or any
action or inaction on the part of unrelated third parties off the
Marina Site which may have an impact on the Marina Site. The
foregoing indemnity shall not be deemed to limit in any way any
direct liability that Lessee may have to third parties, including
governmental authorities, for any violation at, on, or under the
Marina Site of any Environmental Laws.
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October 23, 1991
2.23 ~g~ltel:~y_fQ~__FiIIY.~~Qflm~n~s~l_-~T1S~~lIITl~~y. Lessee:
si-a!1 se~:ui:e t_he indeuuiity described i.r+ Se:ction 2.22 t;y causi_ny
Heller t_u deliver to the City, contemporaneously with the
execution of this Amendment, the Indemnity Guaranty. At any tim~~~
and from time to time, Heller and/or Lessee may, at their sole
option, elact to substitute the Indemnity Guaranty with (i) a
bond in favor of the City in the amount of the Indemnity
Guaranty, or (i.i) insurance in the: amount c;f tt-e Indemnity
Guaranty insuring such indemnity, provided that such insurance is
avai];~Llc: at commercially reasonable rates, and such bond or
insui:~uc:u i ~ pc~uv i duel by ar+ insurer 1 i c:en5cci to du t>us i Huss ],-
1'1Gri_da ur+d reasonal,ly acceptable to the City's Risk Manager. Ir+
such eve,-t tl+e City shall surrender the Incl~:u-nity (iuararrty to
llc:] ler. At any tune thereafter and from time tG ti.me, Hel ler_~
ar-{.l/c.~t: l,~:ssce may elect: to subst.i t+,te ar,y orie of these Lhree:
alt.er++ative torus of security with arty otter one.
2 . ~4 1i~;z~~s~' ~ Lt~l~~~~- ~Qn~~~ning --~~Q~ --L~Y~~Qpiti~n~
Lessee hereby releases and agrees to held harmless the City and
the Agency and their respective officers and employees from any
and all claims, causes of action, shits, debts, sums of money,
dCCG1.1i1tS, reckonings, bonds, covenants, contracts, conCroversies,
ac3ceeuiw+t.s, promises, clauiaye5, cGSts, expenses, cunipensat_ion,
j ud<~uu~n t.s , ex~c:u t i uns , ar-~1 clen,an~ls wl-~ tsu~ver i u ] aw ur i.n
te]uity, in ci~nt_ract or 'in tort (col le~:tivel.y, "c.:laims"), whether
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October 23, 1991
known or unknown, which Lessee ever had, now has, or hereafter
can, shall or may have against the City or the Age~-cy or their
respective officers or employees relating to or arising out of
the development contemplated under the SSDI Documents; provided,
hc~weve:r, that this ralaase shall not release the City or the:
Agency from any Claims in the event that any provision of the
SSDI Documents, as they may be amended from time to time, or
development pursuant to the SSDI Documents, as they may be
amended from time to time, prevents or substantially interferes
with Lessee in its development of or operations on the Marina
Site as contemplated in the Modified Lease ("Substantial
Interference"). Neither development of the SSDI Property in
accordance with the Concept Plan as that term is defined in
Section 2, Paragraph G of the Development Agreement, and as shown
in the drawings attached to the Development Agreement as Exhibit
E, nor any development of the SSDI Property substantially similar
to that shown on the Concept Plan shall be deemed to be
Substantial Interference. Provided, however, this Section 2.24
is not intended to, and shall not, release the City or the Agency
from any liability or obligation which the City or the Agency
otherwise has under the terms and provisions of the Modified
Lease.
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2.25 Oitv's Option to Prov;~p Park ng on SSDI
Property. Lessee acknowledges and agrees that the City shall
leave the option with respect to any obligation to provide public
parking spaces under Sections 3.4, 3.5, or 3.6, to provide any
portion of the public parking spaces on the SSDI Propert-.y
pursuant to Paragraph 11 of the Development•Agreement.
2.26 Bathroom Facil ttp~, Lessee acknowledges and
agrees that upon development of the SSDI Property, the demolition
by the City of the two existing facilities having showers,
reszrooms and clothes washing machines (collectively, the
"Iiathroo~n Facilities") and the relocation by the City of such
Bathroom Facilities, at the City's cost and expense, in
accordance with the provisions of the SSDI Documents contained in
Paragraph 11 of the Development Agreement and the Parking
Agreement relating to the provision of Bathroom Facilities within
the structured parking to be provided on the SSDI Property (which
the City has agreed to perform under Section 3.9 hereof),
satisfies Lessee's requirements under the Marina Lease for the
provision of such Bathroom Facilities, provided that:
2.26.1 the City shall use its best efforts to
have such Bathroom Facilities centrally located in accordance
with tiutually Acceptable Plans and Contracts;
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October 23, 1991
2.26.2 Lessee, its employees, sublessees,
tenants, and invitees are granted full right of use of the
Bathroom Facilities; and
2.26.3 the City shall be obligated to coordinate
construction in such a way that at least one Bathroom Facility
will be fully operational at all times.
2.27 OFerator of Ma ina Lessee shall submit evidence
to the City that an operator having marina management and
operation experience reasonably acceptable to the City is at all
times operating the Marina. The City hereby approves for this
purpose Chrisken Marine, Inc. and Robert Christoph as manager.
The City shall have the right to reasonably approve any proposed
successor manager.
2.28 Demolition of Junior's Building. At such time as
Lessee's interest in the SSDI Property is terminated pursuant to
Article I, Paragraph 3, of the Marina Lease, Lessee shall obtain
all necessary approvals to demolish the Junior's Building and
then demolish the Junior's Building.
2.29 Security D~po i Lessee acknowledges and agrees
that. the City shall have the right to continue to held the
Security Deposit, which the City is holding pursuant to Article
VII of the Marina Lease (which Security Deposit currently amounts
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October 23, 1991
to $91,592.33), for the initial term c~~ the Modified Lease and
a 1. 1. extensions therc,to. The City shall I~~ve the right to use the
accrued interest on the Security Deposit during any calendar year
of the initial term, and any extensions thereto, and to the
extent required, the principal of the Security Deposit, to fund
any shortfall during such calendar year between the amounts due
and owing by the City to the State of Florida under the Submerged
Land Lease and any extensions thereto, and the lease payments
received from Lessee pursuant to the Modified Lease, and any
extensions thereto. Lessee shall have no further obligation to
provide or replace the Security Deposit. On or abut January 15
of each year, the City shall provide Lessee with a statement of
'the current balances of the Security Deposit account and showing
what funds, if any, have been expende.i trom the Security Deposit
account. At such time as the Modified Lease, as dnd if extenriec:,
expires in accordance with its terms, and Lessee peacefully
Surrenders possession of the Marina Site to the City, without
being in material default thereunder or owing any material
obligation to the City under the Modified Lease, then the City
shall, within 30 days thereafter, reti.rn to Lessee or Lessee's
successor the balance of the Security D~=posit account.
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October 23, 1991
2.30 Belocation of in;~;+~;~Q --~ Othe Fa ;~tt;oa
Lessee acknowledges and agrees that City has the right to
relocate utilities and other facilities (including, without
limitation, relocation of the above ground electrical boxes into
the west face of the buildings to be built on the SSDI Property),
as necessary to accommodate the reconstruction of the baywalk,
ttie shoreline and other facilities pursuant to Section 3.9 so
long as the City does not create any Substantial Interference
3• Agreements and Obligatinnc of the C tom,
The City
agrees with Lessee as follows:
3.1 Status of Modif;p.; r~~~e, The City acknowledges
and agrees that the Modified Lease is current and in full force
and effect and good standing and that there are no outstanding
defaults by Lessee under the Modified Lease and that to the
extent such defaults exist, they are hereby waived. The City and
the Agency hereby recognize Lessee as the lessee under the
Modified Lease.
3.2 ~itv Con +-;h»+-;,,.,~ At such times as Lessee
enters into any contract or contracts for the Shoreline
Restoration, the Baywalk Construction, the Clean-up, the removal
of the Underground Fuel Tanks, if required, and any other
activities contemplated by this Section, the City shall identify
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Uctubc~r 23, lOJl
and al,l,rupria Lu, in the manner descri bc:d below under Subsection
3.2.1 t:l-roliyh 3.2.3, funds necessary to pay for such activities
(the "City Contributions"); provided, however, that the City
Contri.Lutions shall not exceed $2,500,000.00 in Lhe aggregate
(exclud.ing any reimbursements described in Section 3.3). To the
extent t11at the City Contributions have not reached such maxiinu::i
amount att_~r completion of the I3aywalk Construction, the
Shorel.ilre Restoration, the Clean-up, and the removal of the
Underground Tanks, if required, Lessee may use the remaining
funds fur L11e: following: baywalk and stlureline impruvetnents anc!
modi.fi.c:at_iuns necessary to accommodate tLe UI~y Stuck 1'aci.lity;
fenderiny and pi1.i.Ilgs; site modification and i.rnproveruents
ili~,lu~liii~~, l,ut_ Ilui_ liwit~~1 l,u, Ianllsc~E,iny, lighting, and
i~~~s~rrt~ac: i ~IC3 of parking lets; and, slll.~jc:ct t:o t11e City's
reasunaUla approval., other capital improvements on the Marina
Site in ~ccurdance witl- Mutually AcceptdLle flans anti Contracts.
`Che City shall disburse funds from the City Contributions to
I~essec~ ur as directed Ly Lessee upol~ prosenLation to t_he City o_:
lIlVOlCCS froul Lessee or its contractors and other supporting
documentation in accordance with the procedures set forth in
Exlribi t. 9 , wi tl~rout any condition or requirement that Lessee shall
have first paid the invoices.
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October 23, 1991
3.2.1 The City covenants and agrees to
approC~riate in its annual budget, by amendment, if necessary,
from Non-Ad Valorem Funds (as defined below) lawfully available
in the applicable fiscal year, amounts sufficient to satisfy its
obligations under Section 3.2. Such covenant and agreement on
the part of the City to budget and appropriate such amounts of
Non-Ad Valorem Funds shall be cumulative to the extent not paid,
and shall continue in future fiscal years until such Non-Ad
Valorem Funds or other legally available funds in amounts
sufficient to make all such required payments shall have been
budgeted, appropriated and actually paid. Notwithstanding the
foregoing covenant of the City, the City does not covenant to
maintain any services or programs, not provided or maintained by
the City, which generate Non-Ad Valorem Funds.
3.2.2 Such covenant to budget and appropriate
does not create any lien upon or pledge of such .Non-Ad Valorem
Funds, nor does it preclude the City from pledging in the future
its Non-Ad Valorem Funds, nor does it require the City to levy
and collect any particular Non-Ad Valorem Funds, nor does it give
Lessee a prior claim on the Non-Ad Valorem Funds as opposed to
claims of general creditors of the City. Such covenant to
appropriate Non-Ad Valorem Funds is subject in all respects to
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October 23, 1991
the payment of obligations secured by a pledge of such PJon-Aci
Valorem Funds heretofore or hereinafter entered into (including
the payment of debt service on bonds and other debt instruments).
However, the covenant to budget and appropriate in its general
annual budget for the purposes and in the manner stated herein
shall have the effect of making available for the payment of the
City's obligations under Section 3.2 in the manner described
herein Non-Ad Valorem Funds and placing on the City a positive
duty to appropriate and budget, by amendment, if necessary, the
amount sufficient to meet its obligations hereunder; subject,
however, in all respects to the restrictions of Section
166.241(3), Florida Statutes, which provides, in part, that the
governing body of each municipality make appropriations for each
fiscal year which, in any one year, shall not exceed the amount
to be received from taxation or other revenue sources; and
subject, further, to the payment of services and: programs which
are for essential public purposes affecting the health, welfare
and safety of the inhabitants of the City or which are legally
mandated by applicable law.
3.2.3. "Non-Ad Valorem Funds" shall mean all
revenues of the City derived from any source whatsoever other
than ad valorem taxation on real or personal property, which are
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Uctob~:r 23, 1991
legally available to make the payments required herein, but only
after provision has been made by the City for the payment of all
essential or legally mandated services.
3.3 Funds Recei.,AA For Clean un Costa, The City
shall make available as City Contributions over and above the
$2,500,000.00 aggregate amount described in Section 3.2, all
funds which the City may receive from the State of Florida or any
other entity as reimbursement or payment for the costs of the
Clean-up. In the event that such funds are paid directly from
the State of Florida or any other entity to Lessee, the City and
the Agency acknowledge and agree that Lessee may use such funds
for the purposes described in Section 3.2 and shall have no
obligation to pay such funds to the City or the Agency.
3 . 4 ~itv' s Obl igat i nn to pros;,;A parking SF pa . At
such time as Lessee is prevented from using more than 50$ of the
land area of either Area 3 or Area 4 or more than 25$ of the
combined land areas of Areas 3 and 4 for parking, the City shall
provide for the remainder of the term of the Modified Lease and
all extensions thereto:
3.4.1 300 parking spaces open to the public
which shall be located within approximately 1,000 feet from Area
1, provided that as many parking spaces as possible shall be
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October 23, 1991
located in a surface parking lot to be constructed and maintained
by the City on the westerly half of Block 81, of Ocean Beach
Florida Addition No. 3, according to the Plat thereof, as
recorded in Plat Book 2, Page 81, of the Public Records of Dade
County, Florida (the "Offsite Parking Location"); and
3.4.2 a pedestrian crossing with traffic
signals on Alton Road at or near Second Street adjacent to the
Marina Site.
3.5 Citv's Additional pbli$atinn Concerning Parkigg
Spaces. At such time as Lessee is prevented from using more than
50~ of the combined land area of Areas 3 and 4 for parking
("Loses Parking"), the City shall use its best efforts except as
required by Section 3.8 to provide, for the remainder of the term
of the Modified Lease and any extensions thereto, an additional
300 public parking spaces, for a total of 600 public parking
spaces, which additional spaces shall either be located on the
Offsite Parking Location or at another location or locations
within approximately 1,000 feet from Area 1.
3.6 Parking -a age(s1. At such time as Lessee Loses
Parking and incremental tax revenues generated, or to be
generated from, the SSDI Property and Areas 1 and 2 are
sufficient to support bonds in an amount required for
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October 23, 1991
construction of a parking garage or garages (the "Parking
Garage{s)") on the Offsite Parking Location or at another
location or locations within approximately 1,000 feet from Area
1, the City shall supply a total of 1,000 public parking spaces,
of which a minimum of 700 parking spaces shall be located in the
Parking Garage(s) or on tre SSDI Property pursuant to Paragraph
11 of the Development Agreement; provided, however, that the
provision of the Parking Garage(s) shall in no way prevent the
City from developing, leasi.~ or selling the air rights on the
Offsite Par):ing Location or other parking location(s), so long as
parking shall be provided for such air rights development in
accordance with the City Zoning Code. The balance of the 1,000
parking spaces shall be within approximately 1,000 feet from Area
1.
3.7 Pedestrian Overpass. When the City constructs
the Parking Garage at the Offsite Parking Location, it shall also
construct a pedestrian overpass from the Offsite Parking Location
to the western side of the Alton Road right-of-way adjacent to
Area 1 (the "Overpass") provided that such incremental revenues
are sufficient to enable the City to finance the construction of
the Overpass and the Parking Garage. The City's obligations
pursuant to this Section are further subject to obtaining
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October 23, 1991
necessary governmental approvals for the Overpass. The City
shall not delay the construction of the Parking Garage because
the incremental revenues are not sufficient to finance the
construction of both the Parking Garage and the Overpass. -^
3.8 Mj.nimum Parking Regl~irPmPn4-c. Notwithstanding
anything to the contrary contained in Sections 3.4, 3.5 or 3.6,
the City shall at all times be absolutely obligated to provide at
a minimum sufficient combined on-site and off-site parking to
meet the requirements of the zoning ordinance of the City in
effect on the date of this Amendment for the uses permitted and
contemplated by the Modified Lease. The City agrees that for
zoning purposes, the availability of the parking spaces provided
under Sections 3.4, 3.5, and 3.6 may be used by Lessee in
determining if sufficient parking is available for the intended
development of the Marina Site. The City agrees that the quality
of construction and maintenance of all parking facilities to be
provided by the City under this Section 3 shall be at least equal
to that of other new City public parking facilities;
3.9 Improvements Related to SSDI DoC»mPnta, The City
shall (i) reconstruct the baywalk and the shoreline seawall and
provide all other improvements necessary to satisfy the
requirements of the SSDI Documents at such time as SSDI or its
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October 23, 1991
successors or assigns request such improvements (which includes
the relocation described in Section 2.30), and (ii) timely
perform all construction and other obligations described in
Section 2.26. The City agrees (i) to provide Lessee with 30
days' prior written notice of the commencement of such work; (ii)
to cause such work to be done with diligence and continuity; and
(iii) to use its best efforts to minimize interference with
operation of the Marina.
3.10 SignaQe. The City shall allow Lessee to place
signs in the northerly portion of Area 4 until SSDI acquires Area
4 in addition to any other signage permitted under the Modified
Lease.
3.11 Relocation_..~f Median Opg~n~~ and Curb Cuts.
Upon a written request from Lessee and after obtaining necessary
approvals from state and county agencies (which the City agrees
to diligently pursue), the City shall commence construction to
relocate one or more median openings and curb cuts on Alton Road
for the Marina Site in accordance with Mutually Acceptable Plans,
in order to provide direct access to the Marina Core Building,
the Dry Stack Facility and related parking areas. Such
construction shall commence within 120 days after issuance of all
required permits.
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Fzx~t
October 23, 1991
3.12 pity's Environmen ~l Indemnity To the extent
permitted by applicable law and otherwise to a maximum total
aggregate amount which shall in no event exceed $1,000,000.00,
the City shall indemnify, hold harmless, and defend Lessee and
its officers, directors, employees, successors, assigns,
mortgagees, and Marina operators or managers against all claims,
litigation, damages, liability, attorneys' fees and costs
(including those for appellate proceedings and those of
paralegals and similar persons), related to, growing out of, or
arising from any event or occurrence, arising prior to July 15,
1983 causing or leading to a violation at, on, or under the
Marina Site of any Environmental Laws. The foregoing indemnity
shall not be deemed to limit in any way any direct liability that
the City or the Agency may have to third parties, including
governmental authorities, for any violation at, on, or under the
Marina Site of any Environmental Laws.
3.13 Estonoel Letter Regarding SLbmp*'ge~ Land LeagP.
As soon as reasonably possible after execution of this Amendment,
the City shall supply Lessee with an estoppel letter in a form
reasonably acceptable to Lessee from DNR confirming that the
Submerged Land Lease is current and in good standing. The City
represents that the Submerged Land Lease is current and in good
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October 23, 1991
standing. The City further agrees that Lessee shall not be
responsible for the payment of any rents or other fees that are
or may be or become due under the Submerged Land Lease., except as
otherwise specifically provided by Section 3.19.
3.14. Lessee's RigLt to Use Logo and Name. The City
acknowledges and agrees that Lessee shall have the right to use
the logo of the City and the name "Miami Beach Marina".
3.15 Assistance Regar g Governor ntat Aparova ~, At
no cost or expense to the City, except For Administrative Costs,
and to the extent legally permissible, the City shall use its
best efforts to assist and support Lessee in securing all
governmental approvals necessary for the construction contem-
plated by the Modified Lease and all governmental reimbursements,
if any, related to the activities described in the Modified
Lease, including, if necessary or desirable, acting as an
applicant or co-applicant. 1n ttie event that certain of these
approvals are required from the City, the City will use its best
efforts to process all such applications in a timely fashion.
3.16 L~,quor Perm'tc, The City shall use its best
efforts, to the extent legally permissible, to assist and support
Lessee in its efforts to obtain variances or other governmental
approvals required to permit liquor, beer and wine sales and
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October 23, 1991
consumption on the Marina Site; provided, however, that Lessee
shall not seek permits or licenses for package liquor sales on
the Marina Site.
3.17 Project Coordinator. The City shall designate an
individual employed by the City to be the project coordinator
with respect to the construction and other activities
contemplated by the Modified Lease. Such project coordinator
shall assist with and coordinate all permitting matters
contemplated by the Modified Lease.
3.18 Extension of Submersed Land Lease. Within a
reasonable period prior to the expiration of the term ( and eac:li
extension thereof) of the Submerged Land Lease, the City shall
cause the term of the Submerged Land Lease to be extended so that
the Submerged Land Lease shall always be in full force and effect
during ttie L-erm of the Modified Lease. In the event that Lessee
exercises its option to extend the Modified Lease, the City shall
use its best efforts to cause the term of the' Submerged Laird
Lease to be extended to coincide with the extended term of the
Modified Lease and provide evidence of such extension to Lessee,
but in any event the City shall provide a continuous and
uninterrupted right for Lessee to use and operate in Area 2. The
City shall commence efforts with the State of Florida to obtain
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October 23, 1991
extension(s) of the Submerged Land Lease as aforedescribed, at
least one year prior to the then scheduled termination date of
the Submerged Land Lease. The City shall promptly notify Lessee
when an extension is obtained from the State of Florida.
.3.19 E~lv EXtencinn of Subm rge~ Land Leacp at
Lessee's ReQuest. In the event that Lessee wants to extend the
term of the Submerged Land Lease prior to the City's commencing
its efforts to extend the term of the Submerged Land Lease, then
in that event the City shall, at no cost to the City, other than
Administrative Costs, assist and support Lessee in its attempt to
cause the term of the Submerged Land Lease to be extended;
provided, however, that in such event, Lessee shall bear ttie cost
of ar~y additional rents above the rent that the City would
otherwise be required to pay under the Submerged Land Lease
imposed as a result of the early extension of the Submerged Land
Lease. However, such payment of additional rent shall cease
after the time that the City would have had to seek an extension
of the Submerged Land Lease.
3.20 Audendmentc of SSDI Doc imentc, The City will not
amend tYie SSDI Documents so as to eliminate or diminish the
easements provided for in Section 2.3 or to allow Substantial
Interference. The City represents that there has been no
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October 23, 1991
modification or amendment of any kind made to the SSDI Documents,
from the date thereof to the date of this Amendment, and that it
is not in default of a material obligation under the SSDI
Documents.
3.21 S~tv's Obligatinn to G ant EaSPmPn~c,
In the
event that the rights of SSDI or its successors or assigns to
acquire and/or develop the SSDI Property, pursuant to the SSDI
Documents, are terminated for any reason, the City shall grant
easeiner-ts to Lessee in substantially the same form and content as
the easements referred in Section 2.3.
3.22 ronfirmat~nn of Lessee's Release Upon Term nation
Qf Mod'fiP.~ Lease. Upon Lessee's request in the event that
Lessee elects to terminate the Modified Lease by sending a
Termination Notice pursuant to the terms of this Amendment, the
City shall execute an instrument in form reasonably acceptable to
Lessee in order to confirm Lessee's release from further
liability under the Modified Lease as provided by Section 2.11.
3.23 Memorandum of Amendment. The City and Lessee
shall cooperate with each other in preparing and join in a
suitable Memorandum of this Amendment reflecting the
modifications of the Marina Lease, to be recorded in the public
records at Lessee's expense.
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October 23, 1991
3.24 Lessee's giaht to Cr~,c~ Baywalk with Ecr~y,~j~mpn}} .
Lessee, its agents and employees shall have the right to cross
ttie Baywalk with heavy equipment as required for and convenient
to the operation of the Dry Stack Facility, subject to approval
of Mutually Acceptable Plans.
3.25 ~FFroval of SubleaseG. The City shall approve or
reject in writing a proposed sublease within 14 days of its
receipt from Lessee, and the failure of the City to approve or
reject within said 14 day period shall be deemed an approval.
For purposes of the City's approval of proposed subleases, the
City shall have the right to reject a proposed sublease only if:
3.25.1 the proposed sublease permits a use
prohibited by the Modified Lease;
3.25.2 the proposed sublessee has sought
judicial protection from creditors in tYie previous 3 years; or
3.25.3 the proposed sublease is inconsistent
with l.t~~ LeLms of the Modified Lease, includirtg, without
limitation, any proposed sublease which attempts to avoid payment
to the City of Gross Receipts as contemplated or intended by the
Modified Lease.
3.26 Non-Dj.Sturhane-ra AQrPCarnantc. The City shall enter
into non-disturbance agreements wi.tti sublessees in form
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October 23, 1991
reasonably acceptable to the City and Lessee, provided treat the
applicable sublessee has executed the City's sworn statement
pursuant to Section 287.133(3)(a), Florida Statutes, to the
extent legally permissible.
3.27 4~liaation to Keep SSDI Mortg~Qe in Good
Standing. The City shall keep the SSDI Mortgage in good standing
at all times during the term of the Modified Lease until such
time as the SSDI Mortgage is satisfied. The City represents that
the SSDI Mortgage is presently in good standing.
3.28 Title to Marina Site. The City and the Agency
represent and warrant that to the best of their knowledge an~_1
without investigation and except as disclosed in the Amendment,
n~:itli~:l lliu City nui the Agency has taken any actions that have
affected the marketability of Lessee's leasehold title to the
Marina Site, since February 3, 1989, being the effective date of
Lawyers Title Insurance Corporation Commitment No. ;BF-310212.
3.29 ~oo~eration Regarding Wave and purge Problpmc,
The City shall, without expense to the City, in Lessee's efforts
to correct the wave and surge problems described in Section 2.19.
3.30 Designa ion of Parking Snace4. Since the Marina
will be operated as a public marina and it would be in the public
interest to designate spaces for the Marina in the parking
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October 23, 191
facility, the City agrees, to the extent allowed by law, to
designate for Marina use upon request by Lessee from Lime to time
(subject to payment to the City of market rates for the spaces
actually requested), the maximum number of spaces in the parking
facilities which may be lawfully sc designated; provided,
however, that no such designation will be made if such
~iesignatioii will interfere with the City's or the Age~rcy's use of
its eminent domain power to acquire land for s~rch parking
facilities or interfere with the ability of the i:ity or the
Agency to issue tax exempt bonds.
4. Tax Increment Financ~nrr, The parties agree that iri
cases where the City, pursuant to this Amendr~~ant, has ari
obligation which is contingent upon incremental tax revenues
("Incremental Revenues") being available to pay for such
obligation {"Contingent Obligation") the following procedures
Shall apply:
4.1 Lessee shall have the right to provide the City
and the Agency with a feasibility study which sets forth the
expected assessed value of capital improvements to be constructed
on the SSDI Property and, if applicable, Area 1 and/or Area 2 as
well as an overall assessment of the incremental revenue
available from those capital improvements, and a statement as to
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whether t}~ose Incremental Revenues are sufficient to fund the
Contingent Obligation (the "Feasibility Study").
4.2 Upon the receipt of a Feasibility Study showing
Incremental Revenues sufficient to fund the Contingent
Obligation, the Feasibility Study shall be peviewed without delay
by a professional team designated by the Agency consisting of
investment bankers, the Agency's Fina~lce Director, a Financial
Advisor, and bond counsel {the "Review Committee"). The Review
Committee shall render its determination as to whether the
Feasibility Study is acceptable or not acceptable, and if not
acceptable, the reasons therefor, within 30 days of receipt of
the Feasibility Study by the Agency.
4.3 Upon acceptance of t}ie Feasibility Study by the
Review Committee, the Agency shall, subject to meeting the
additional bonds test with respect to any outstanding tax
increment bonds, without delay, develop and implement a financing
plan based upon the Feasibility Study (the "Financing Plan").
The Financing Plan shall provide for the issuance of taxable or
tax exempt obligations which shall not be general obligations of
the City, but shall be secured by tax increment revenues and any
other revenues the Agency or the City may wish to include and any
additional credit enhancement which uiay be necessary to sell the
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October 23, 1991
obligations to either institutional. investur_, or the general
publ i.u. It i.5 understood that there shall i.~~: no obligation fur
ttie City or the Agency to provide revenue sources other than
Incremental Revenues.
4.4 The City and/or the Agency shall use its best
efforts to have Lessee participate in the structuring and
marketing of the obligations.
4.5 In the event that Incremental Revenues are not
sufficient to pay for the Contingent Obligation, Lessee shall
have the right but not the obligation to propose alternative
financing plans or to fund the deficiency between the amount of
funds to be available from Incremental Revenues and the cost of
the proposed improvements (the "Deficiency") in order to expedite
construction. In the event that Lessee chooses to fund ti:e
Deficiency, the City and/or the Agency shall have the obligation
to construct the Contingent Obligation without any obligation on
the part of the City or the Agency to repay the Deficiency;
provided, however, that neither the City nor the Agency shall
have the obligation to issue any debt with respect to or
construct the Contingent Obligation until Lessee secures the
Deficiency in a manner satisfactory to the City.
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October 23, 1991
5. Effective Date.
5.1 The obligations of either party which are
required by the terms of this Amendment to be performed shall
become effective upon e:tecution of this Amendment by all parties.
5.2 The date of this Amendment shall be the date when
the last one of the City, the Agency or Lessee has signed this
Amendment, as stated on the signature page.
6. Notices. Any notices required or permitted to be given
under the Modified Lease shall be delivered by hand or by Federal
Express or other nationally recognized overnight delivery
service, and addressed as described below, or at such address
designated in accordance with this Section. Notices shall bc~
deemed effective only upon receipt or refusal of delivery.
To Lessee: Tallahassee Building Corporation
300 Alton Road
Miami Beach, Florida 33143
Attn: Property Manager
and to
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October 2 :i , 19 91
Heller Financial, Inc.
200 North LaSalle
Chicago, Illinois 60601
Attn: Real Estate Finance Group
General Counsel
(until December 1, 1991) and
thereafter to:)
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois 60666
Attn: Real Estate Finance Group
General Counsel
with a copy to: Fine Jacobson Schwartz Nash
Block & England
100 S.E. 2nd Avenue
Miami, Florida 33131
Attn: Stuart K. Hoffman, Esq.
or Carter N. McDowell, Esq.
To City: City of Miami Beach
1700 Convention Center Drive
.Miami Beach, Florida 33139
Attn: City Manager
with a copy to: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
To Escrow Agent: Fine Jacobson Schwartz Nash Block &
England, P.A.
100 Southeast 2nd Street, Suite 3600
Miami, Florida 33131
Attn: Stuart K. Hoffman, Esq.
or Carter N. McDowell, Esq.
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October 23, 1991
7. Governing Law. This Amendment has been negotiated and
cxecutc~.i iii 1'lorida, a-id shall be construed and governed in
accordance with the laws of the State of Florida, without
application of conflict of laws principles.
8. Provisions Severable. In the event any term or
provision of this Amendment is determined by appropriate judicial
authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or be construed 3s
deleted as such authority determines, and the remainder of this
Amendment shall be construed to be in full force and effect.
9. Synder and Case. Whenever used in this Amendment, the
singular shall include the plural, the plural shall include the
singular, and any gender shall include every other gender.
10. ~~ ion The captions and section headings in this
Amendment are for the convenience of reference only and shall not
be deemed to alter any provision of this Agreement.
11. Fyhibita and Sections. All references to Exhibits or
Sections are to Exhibits or Sections of this Amendment, unless
the reference expressly identifies another document. All
Exhibits of this Amendment are attached to and made a part of
this Amendment.
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October 23, 1991
12. Entire Agreement, The Modified Lease constitutes the
entire agreement between the parties, and supersedes all other
prior written or oral agreements between the parties, with
respect to the subject matter of the Modified Lease.
13. B~lationchip of thin Amendment and the Marina Lease
In the event of any conflict or inconsistency between the terms
and provisions of this Amendment and the Marina Lease, this
Amendment shall prevail.
14. Amendments. This Amendment may not be changed,
altered, or modified except by an instrument in writing signed by
all parties.
15. Non-Waiver. No waiver by either party of any breach by
ttie other party of any term or provision of this Amendment, and
no failure by the non-breaching party to exercise any right or
remedy i_n respect of any such breach, shall constitute a waiver
or relinquishment for the future, or bar any right or remedy of
the non-breaching party in respect of, any other' breach of such
term or provision or any breach of any other term or provision of
this Amendment.
16. Successors and ASSinnc, All of the terms and
provisions of the Modified Lease shall be binding upon and shall
inure to the benefit of the parties to this Amendment and their
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October 23, 1991
resF;ecti.ve successors and assigns; rio other party sl,al.l be deemed
to b~: a L~neficLary of the Modified Lease. Any waiver of rights
Uy eiCher party ~r,all be deemed not only to be a waiver of such
rights ty such party but also a waiver of scch rights for and on
b~:halt ,~t- such party's successors and assigns; provided, however,
tlr~r~ 1.,C:iSt,t' slrall nut Assiytl the Mudifi+ad L~eaSe witlluut the Lity
Manager's prior written consent, which shall not be unreasonably
withheld, subject to the provisions ~~f this Amendment concerning
the Sc.ibsti.tute Guaranties. At such time as such ass.idnment is
m~idc i,ursuant to suclr corssent, Lessee shall be released from all
of its ~bliyations under the Modified Lease.
17 • ~52t1~-~~~1QII• Each of the parties to this Amendment
bias participated fully in its negat.iation and preparation.
Acct-,rdi.c~gly, this Am~:~idn~cnt shall. nut be more strictly construed
v~~'d.i71:_i t urly Urle O f the l~cirt LOS .
18. Time of ~~._~;~~~~• `l'ime 15 Of the P_~~GF?ii!`~ ,inrl~r• tt,r,
Mudi.ti~d .Lease.
19. GoLnterpa ~. This Amendment may be executed in two or
iuaL•e co~.rnterparts, each of ~~hich shall be deemed to be an
c,c i y i ~~,.r 1 .ind a 11 ut w}lic:h, take~~ t~yctl~c:r, shall. be cieerned to be
one aye ~ernant .
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October 23, 1991
2U. Further Act ~n~ The parties shall take all such
act-ions and execute all such documents as may be necessary to
carry out the purposes of this Amendment, whether or not
specifically provided for in this Amendment. In that regard, the
parties. acknowledge that certain terms and conditions of this
Amendment may be inconsistent with the terms and conditions of
the Marina Lease and agree to negotiate in good faith for a
Second Amendment to the Modified Lease to rectify such
iuc:urrsi:;t:encies, The parties further agree to cooperate with
each other in order to resolve any outstanding issues related to
the transfer of development rights from Area 1 as may be
necessary to permit construction of the improvements contemplated
under this Amendment, including, but not limited to, the Dry
Stack Facility. Lessee agrees to take such action as may be
requestEd by the City to satisfy of record the Heller leasehold
mortgage, which the parties agree has been satisfied or merged
into the judgment of foreclosure.
21. Attorneys' Feea. In the event of litigation or
arbitration arising out of this Amendment, the prevailing party
shall be entitled to reasonable attorneys' fees, including fees
for the services of paralegals and similar persons, and all such
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October 23, 1991
expenses and costs incurred by the prevailing party through all
appellate lavels.
22. Arbitration.
22.1 Notwithstanding any other term or condition of
the Modified Lease, any controversy or claim for money dam3gzs
between the parties arising out of or relating to the Modified
Lease or the breach thereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and the arbitration award shall be final
and binding upon the parties and subject to no appeal, and shall
deal with the question of the costs of arbitration and all
matters related to such costs. in that regard, the parties shall
each select one arbitrator and shall jointly select a third
arbitrator, but in the event the parties cannot agree upon the
third arbitrator, then the American Arbitration Association shall
appoint one. Judgment upon the award rendered may be entered
into any court having jurisdiction, or application may be made to
such court for an order of enforcement.
22.2 Any controversy or claim other than a controversy
or claim for money damages arising out of or relating to the
Modified Lease, or the breach thereof, including any controversy
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October 23, 1991
or clai.cn relating to the right to specific performance, eviction,
or ejectment, shall be settled by litigation and not arbitration.
23. I,~mitation on Liah;tity Qf the City.
23.1 The City desires to enter into this Amendment
only if in so doing the City can place a limit on the City's
liability for any cause of action for money damages due to an
alleged breach by the City of the Modified Lease, so that its
liability for any such breach is fixed. Lessee hereby expresses
its willingness to enter into this Amendment with fixed
limitations on recovery for any damage action for breach of
contract. Accordingly, notwithstanding any other term or
condition of the Modified Lease, Lessee hereby agrees that the
C:ity's liability for monetary damages for any action for breach
of contract arising out of the performance or nonperformance of
any obligations imposed upon the City by the Modified Lease shall
be limited as follows:
23.1.1 $2,500,000.00 in the. aggregate: for
non-performance relating to the funding of obligations set fortis
in Section 3.2;
23.1.2 $1,000,000.00 in the aggregate: for
non-performance relating to the funding of obligations set forth
in Section 3.12; and
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October 23, 1991
23.1.3 $1,000,000.00 in the aggregate: for
non-performance of all other obligations set forth in the
Modified Lease, subject to the exclusions set forth in Section
23.2.
23.2 The limitation of liability set forth in Section
23.1 above shall not apply to the following:
23.2.1 substantial interference with the right
of Lessee to use Areas 1 and 2 as contemplated by the Modified
Lease or the failure of the City to provide utility and public
access as obligated under Modified Lease;
23.2.2 the obligations of the City under Section
3.9 (Improvements Related to SSDI Documents);
23.2.3 the obligations of the City under
Sections 3.4, 3.5, 3.6, and 3.8;and
23.2.4 condemnation of the Marina Lease and/or
the MaL ina Site or arty portion thereof .
23.3 This Section shall not limit any 'other rights or
remedies, other than monetary damages, available to Lessee,
including, without limitation, specific performance.
23.4 Nothing contained in this Section or elsewhere in
this Amendment is in any way intended to be a waiver of the
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October 23, 1991
limitation placed upon City's liability as to third parties set
forth i.u Section 768.28, Florida Statutes.
24. ?.imitatjon on Liability of Lessee Lessee desires to
enter into this Amendment only if in so doing Lessee can place a
limit on its liability for any cause of action for money damages
due to an alleged breach by Lessee of the Modified Lease, so that
its liability for any such breach is fixed. The City hereby
expresses its willingness to enter into this Amendment with fixed
limitations on recovery for any damage action for breach of
contract. Accordingly, notwithstanding any other terms or
conditions of the Modified Lease, the City hereby agrees that
Lessee's liability for monetary damages for any action for breach
of contract arising out of the performance or non-performance of
any obligations imposed upon Lessee by ttie Modified Lease shall.
be limited as follows:
24.1 $1,000,000.00 in the aggregate for
non-performance of the indemnity obligations set forth in Section
2.22; and
24.2 $1,000,000.00 in the aggregate plus attorney's
fees and costs of enforcement for non-performance of all other
obligations set forth in the Modified Lease, subject to t}te
exclusions set forth in Section 24.3.
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October 23, 1991
24.3 The limitation of liability set forth in Sections
24.1 and 24.2 above shall not apply to the obligations of Lessee
to construct the Ury Stack Facility and the Core Building
Improvements in accordance with the terms of the Modified Lease.
24.4 This section shall not limit any other rights or
remedies, other than monetary damages, available to the City,
including, without limitation, specific performance.
25. Mutual Rights and Ob igati~*+~ Lessee acknowledges his
approval and agreement to the terms and conditions of Section 3
of this Amendment and agrees to be bound thereby. The City
acknowledges its approval and agreement to the terms ar~.d
conditions of Section 2 of this Amendment and agrees to be bound
thereby. In the event that the City defaults in its obligations
under Sections 3.2, 3.4, 3.5, 3.6, or 3.8, then, notwithstanding
anything to the contrary contained in the Modified Lease, and in
addition to all other rights and remedies available under the
Modified Lease, Lessee's obligations to construct the Core
Building Improvements and the Dry Stack Facility shall be
automatically suspended during the pendency of such default. In
such event any time periods for Lessee's performance under said
sections shall be appropriately extended. In the event that
Lessee defaults in its obligations to construct the Core Building
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October 23, 1991
Improvements and the Dry Stack Facility, then, notwithsL-anding
anything to tyre contrary contained in the Modified Lease, and in
addition to all other rights and rer~~adies available under the
Modified Lease, the City's obligations under Sections 3.2, 3.4,
3.5, 3.6 and 3.8 shall be automatically suspended during the
pendency of such default. In such event any time periods for the
City's performance under said sections shall be appropriately
extended.
26. Authority The City, the Agency, and Lessee each
represent and warrant to the others that i.ts execution, delivery,
and performance of the Modified Lease has been drily authorizev
and is irr compliance with all applicable laws.
27. West Two Feet of Lots 1S through 20. Tlie City 'j1E
represents to Lessee that the City beliav~:s in good faith that it
inadverter~itly included in the Short Form Lease the west two feet
of Lots 15 through 20, inclusive, in Block 111, of OCEAN BEACH
FLORIDA ADDITION NO. 3, according to the Plat thereof, recordEd
in Plat Book 2, Page 81, of the Public Records of Dade County,
Florida, and that the City does not have fee simple title to said
property. Based solely on such representation, and if it is
determined by Lawyer's Title Insurance Corporation that the City
does not have fee simple title to said Property, Lessee agrees to
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October 23, 1991
execute any documents reasonably requested by the City to clear
fee simple title to said property, provided that Lessee shall not
be obligated to relinquish any easement rights over said
property.
28. Other Amendm_ntG to Ma ina Taacc The Marina Lease is
hereby further amended as follows:
28.1 The first two sentences of Article I, Paragraph 1
are hereby deleted in their entirety, and the following four
sentences are hereby added to the beginning of Article T,
Paragraph 1:
The CITY hereby leases unto the LESSEE for
the purposes and under the conditions
hereinafter set forth, the real property
(hereinafter called the "demised premises" or
"premises"), located in the City of Miami
Beach, Florida, consisting of three tracts of
land together with improvements thereon,
designated as Areas 1, 3 and 4 and legally
described in revised Exhibit A annexed hereto
and made a part hereof. Appurtenant to Area
1, LESSEE shall have the right to use the
tract designated as Area 2 and legally
described in revised Exhibit A in accordance
with and subject to a Submerged Land Lease
dated January 21, 1986, as amended, between
the Board of Trustees of the Internal
Improvement Trust Fund of the State of
Florida and the City, (the "Submerged Land
Lease") and the applicable rules and
regulations of governmental agencies having
jurisdiction. Area 2 is coextensive with the
area leased by the City under the Submerged
Land Lease (the "Submerged Land Leased
Area").
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October 23, 1991
28.2 The first sentence of Article I, Paragraph 2 is
Hereby dI11ell~~i~ in its entirety to read as follows
The term of this Lease Agreement for Area 1
(and LESSEE's right to operate the marina on
Area 2) shall be for a term ending on January
1, 2022 (hereinafter called the "Initial
Term").
28.3 Article II, Paragraph 2 is hereby amended in its
entirety to read as follows:
2 . 8~,1.
The LESSEE shall pay to the CITY as
Base Rent the Minimum Annual Guaranteed Rent
9.~ the Annual Percentage Rent specified below
of Gross Receipts, whichever may big a Pr;
A. Minimum Annual Guaranteed Rent as
follows:
a. For 1991, $160,000 multiplied by a
fraction, the numerator of which is the
number of days from the date of the
execution of the Amendment to the Marina
Lease through December 31, 1991, and the
denominator of which is 365.
b. For 1992, $160,000.
c. For 1993, $200,000.
d. For 1994, 1995, 1996, and 1997, $240,000
per year.
e. For 1998 and for the remainder of the
Initial Term or Extended Terms, if any,
5320,000 per year, or
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October 23, 1991
B. "Annual Percentage Rent", which shall
mean, with respect to each Lease Year, an
amount equal to the following:
a. Two cents ($0.02) per gallon from the
sale of gasoline in such Lease Year,
plus
b. ..Two cents ($0.02) per gallon from the
sale of diesel fuel in such~Lease Year,
plus
c. Eight percent (8~) of all other Gross
Receipts from the date of execution of
the Amendment to the Marina Lease
through December 31, 1992 and during
each Lease Year from 1993 through 1999,
and ten percent (10$) of all other Gross
Receipts during each Lease Year from
2000 through the remainder of the
Initial Term or Extended Terms, if any.
28.4 The third and fourth sentences of Article II,
Paragraph 3 are hereby amended in their entirety to read as
follows:
The first full Lease Year shall begin on
January 1, 1992 and subsequent Lease Years
shall begin upon January 1 of each calendar
year thereafter. Each report shall be signed
by LESSEE or his responsible agent and 'shall
include the following:
A. The Total Gross Receipts for said
portion of the Lease Year, itemized
as to each of the three (3)
categories specified in paragraph
2(B)(a) - 2(B)(c) of this Article
for which a separate percentage
rental rate is established;
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October 23, 1991
B. The resulting Annual Percentage
Rent for each of such three (3)
categories computed as herein
provided and the total thereof;
C. The total Base Rent previously paid
by LESSEE for the Lease Year within
which the preceding month falls.
28.5 Article II, Paragraph 4 is~hereby deleted in its
entirety.
28.6 Article III, paragraph 1(i) is hereby amended in
its entirety to read as follows:
(i) the entire amount of the price charged,
whether wholly or partially in cash or on
credit (and in the case of sales on credit
whether or not payment be actually made
therefor), or otherwise, for all fuel, goods,
wares, merchandise and chattels of any kind,
sold, leased, licensed or delivered, and all
charges for services sold or performed in,
at, upon or from any part of or through the
use of the Marina Site or any part thereof by
LESSEE, including dry .stacks, or by means of
any mechanical or other vending device (other
than pay telephones and those soft drink and
other similar vending devices operated
primarily for the convenience of LESSEE'S
employees);
28.7 Article III, Paragraph 1(iv) is hereby amended in
its entirety to read as follows:
(iv) all Gross Receipts, including rents,
received by LESSEE resulting from occupancy
or use of the Marina Site or any part thereof
by any independent, third-party sublessee,
concessionaire or parties operating through
any sublessee or concessionaire, including
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October 23, 1991
Gross Receipts received by LESSEE from any
independent, third-party sublessee or
concessionaire operating dry stacks or wet
slip facilities on the Marina Site.
Notwithstanding the foregoing, that portion
of the rent or consideration paid by any
sublessee during the period from the date of
execution of the Amendment to the Marina
Lease to the date two years after the
execution of the Amendment to the Marina
Lease for tenant improvements in, the Core
Building above standard buildout {defined to
be $25.00 per square foot) shall be excluded
from the term "Gross Receipts" and shall be
excluded from any calculation of Annual
Percentage Rent. The amount of the rent
which is attributable to above-standard
improvements shall be provided to the City by
Lessee when the sublease is submitted for
approval.
28.8 The word "and" is deleted immediately before Item
(v) of Paragraph 1 of Article III, and the following Paragraph
1(vi) is hereby added to the end of said paragraph:
and (vi) all Gross Receipts, including
rents, received by any independent,
third-party sublessee or concessionaire
operating dry stack or wet slip facilities on
the Marina Site.
28.9 The first sentence of Article IV, Paragraph 1 is
hereby amended in its entirety to read as follows:
LESSEE agrees to prepare true and complete
records and accounts of all Gross Receipts
for each Lease Year, in accordance with
generally accepted accounting principles
consistently followed, itemized as to each of
the three (3) categories for which a separate
percentage rental rate is established
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October 23, 1991
pursuant to Article II, Paragraph 2(B)(a) -
2(D)(c).
28.10 The following portion of Article
hereby deleted:
The CITY shall indemnify and save harmless
LESSEE, except to the extent of LESSEE'S own
negligence, against any and all claims,
damages or causes of action connected with,
related to, by reason of, or arising out of
certain litigation styled South Shore
Developers, Inc et al v ity of M'am;
Eeach, Florida al Case No. 82-24526,
11th Judicial Circuit, Dade County for any
direct injury, loss of profits, or damages to
business interests sustained by reason of
any judgment or lis pendens in the above
styled case, including but not limited to all
costs, attorneys' fees, expenses and
liabilities incurred in the defense of any
claim and the investigation thereof.
XXIII is
28.11 The following Paragraph 9 is hereby added to
Article XX:
i,essee's PrOGE?~nraG and RemediPG for Defa ~lt-
by the City or the AQen~}
Notwithstanding anything contained in this
Lease to the contrary, in the event' that
Lessee believes that the City and/or the
Agency is in default with respect to any term
or condition contained in this Lease, Lessee
shall give the City and/or the Agency as
applicable a notice of default which shall
specify the nature of the alleged default
and, where appropriate the manner and period
of time in which such default may be
satisfactorily cured (the "Notice of
Default"). In no event shall the Notice of
Default specify a time period less than
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October 23, 1991
thirty (30) days measured from the date of
mailing of the Notice of Default for the City
and/or the Agency to cure the alleged breach
(the "Cure Period"). During any Cure Period,
the City and/or the Agency, as applicable,
shall not be considered in default for the
purpose of institution of legal proceedings.
If the default is cured during the Cure
Period then no default shall be deemed to
have existed and Lessee shall take no further
action. After a Notice of Default and the
expiration of the Cure Period, Lessee may at
its option institute legal proceedings for
enforcement of this Lease at law or in
equity, subject to the provisions of Sections
22 and 23 of the Amendment. Failure or delay
in giving a Notice of Default pursuant to
this section shall not constitute a waiver of
any default. Any failure or delay by Lessee
in asserting any of its rights or remedies as
to any default shall not operate as a waiver
of any default or of such rights or remedies
or deprive Lessee of its rights to institute
and maintain any actions or proceedings which
it may deem necessary to protect, assert or
enforce any such rights or remedies, subject
to the provisions of Sections 22 and 23 of
the Amendment.
28.12 Article XXV, Eminent Domain is amended
include the following new paragraphs:
Notwithstanding anything to the contrary
contained in this Article XXV, if this Lease
is terminated because of a permanent taking,
then the City shall be paid from the award an
amount which shall be allocated to and
represented by the value of the City's fee
interest in the Leased Property, as
encumbered by the Lease, and Lessee shall be
paid an amount which shall be allocated to
and represented by the value of Lessee's
interest in the leasehold interest, options
to
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October 23, 1991
to extend and the improvements, in both cases
as found by the court or jury in its
condemnation award without any priority to
either (subject, however, to the right of the
parties hereto to appeal such finding and all
costs of appeal shall be borne by the party
seeking such appeal). If no separate awards
are obtained, then the total award shall be
paid to the City and Lessee in the same
proportion as the then fair market value of
the interest of the City and the Lessee so
taken (as described and defined in this
subsection). If the parties cannot agree on
the fair market value of their respective
interests, then the court which entered the
award shall be requested to make such
determination.
Partial- or emp ary Taking of Proje~fi ~y
Condemnation-. In the event that less than
all of the Leased Property and Lessee
Improvements shall be taken for any public
use or purpose by the exercise of the power
of eminent domain, or shall be conveyed by
the City and Lessee acting jointly to avoid
proceedings of such taking, and the Lessee
and the Lender or Lender/Landlord for the
Project at that time, if any, shall be of the
good faith opinion that it is economically
feasible to effect restoration thereof, then
this Lease and all the covenants, conditions
and provisions hereunder shall be and remain
in full force and effect as to all of the
Leased Property and improvements not so taken
or conveyed; Developer shall, to the extent
condemnation proceeds are made available to
it pursuant to the terms thereof, remodel,
repair and restore the improvements so that
they will be comparable to the improvements
prior to the condemnation taking into
consideration the fact of the condemnation;
provided, however, that in so doing Lessee
shall not be required to expend more than the
amount of any such award actually received by
-74-
FINAL
October 23, 1991
Lessee less all costs and expenses (including
reasonable attorneys fees) incurred in the
collection of same.
The award or awards of damages allowed to
City and Lessee shall be paid to and received
by the parties as follows:
First: There shall be paid to the Lessee the
amount required to complete the, remodeling
and repairs to the Lessee Improvements
pursuant to (a} above;
Second: There shall be paid to the City the
value of the portion of the Leased Property,
as encumbered by the Lease, so taken or
conveyed and Lessee shall be paid the value
of the Leasehold Interest, so taken, if any.
In both cases as found by the court or jury
in its condemnation award, or if no such
separate awards are obtained, such award
shall be paid 'to Lessee and the City in the
same proportion as the then fair market value
of the City's interest in the leased property
and the Lessee's interest in the Leasehold
Interest options to extend and the
improvement so taken or conveyed. If the
parties cannot agree on the fair market value
of their respective interests, then the court
which entered the award shall be requested to
make such determination.
28.13 Any reference in the Marina Lease to the
"Lease" c-- "Lease Agreement" (whether or not capitalized} shall
mean the Modified Lease.
28.14 Article IX is hereby
Following respects:
modified in the
-75-
FINAL
October 23, 1991
(1) Lessee shall have the right to
freely mortgage from time to time, its
leasehold interest under the Modified Lease
(including, without limitation, the
improvements located on the Marina Site and
all personal property of Lessee) to a
leasehold mortgagee meeting the requirements
set forth in the last subparagraph of Article
IX, Paragraph 1 on page 35 and any such
leasehold mortgagee shall be deemed to be,
and shall have al.l the rights of ,' an Original
Mortgagee under the Lease, except those
rights which are deleted from the Lease
pursuant to paragraph 9 below and except as
provided in paragraph 10 below.
(2) The consent of the City shall not
be required for a foreclosure, trustee's sale
or assignment or other conveyance of the
Lessee's interest in lieu thereof, provided
that the party obtaining the Lessee's
interest under the Modified Lease (the
"Purchaser") shall assume in writing the
Lessee's interest under the Modified Lease
within thirty (30) days after obtaining the
Lessee's interest.
{3) The term "Leasehold Mortgagee"
means an Original Mortgagee or any holder of
a first mortgage on Lessee's interest under
the Modified Lease.
{4) The time period for curative action
under item (ii) on page 33 of the Modified
Lease is extended to 60 days after the
Leasehold Mortgagee obtains possession of the
Property or such longer time as is necessary
to diligently prosecute the curative action
to completion.
(5) No modification, amendment or
surrender of the Modified Lease shall be made
without the joinder of the then Original
Mortgagee, if any, except for a termination
made pursuant to Section 2 of this Amendment.
-76-
FINAL
October 23, ].991.
(6) At t}ie request of an Original
Mortgagee, City agrees to enter into an
agreement as reasonably requested by said
Original Mortgagee, incorporating the
provisions of Article IX of t}ie Lease.
(7) Neither a Leasehold Mortgagee nor
any Purchaser shall have any obligation to
crire any default under the Modified Lease
which is personal to the Lessee and not
reasonably capable of being cured by said
Leasehold Mortgagee or_ Purchaser.
(II) In the event that City enters into
a new lease wit}i a Leasehold Mortgagee
pursuant to this Article, it shall,
simultaneously therewith, quitclaim to said
Leasehold Mortgagee, for the balance of the
term of the Modified Lease (including any
ext.ensi.ons) al.l of its intc~.rest in r~l I
improvements located on the M~~ri.na Site.
(9) The fourth, fifth and sixth
sentences in the paragraph sL-arting on page
31 and coritiniiing on page 32 of the Lease of
the Lease are deleted in their entirety.
(10) In the event Heller Financial,
Inc., or any subsidiary or affiliate thereof,
is a Leasehold Mortgagee, any benefits
afforded said party to cure a default by
Lessee under Article IX shall not be
operative while TBC, or any subsidiary or
affiliate of Heller, is the Lessee under the
Lease. Nothing contained in Article IX shall
limit or otherwise effect IielLer Financial.,
Inr..'s li.abil ity cinder such Guarantees.
-77-
FINAL
October 23, 1991
IN WITNESS WHEREOF, the parties have executed this
Amendment as of the date set forth in the first paragraph of this
Amendment.
Signed, sealed, and delivered
in the presence of:
~` ~,~-+
~~--
City of Miami
mun.icipa~, cdr
,a. Florida
f -____-.__.
Lr /
~~
,~-.
By:
r~eyo r
j_ ;
Dated : ~ ? C~~~,yG- ~ .~ ~ ~ `~ `f ~
City Clerk
Tallahassee Building
Corporation, a Florida
corporation
~~
1 ~
Dated: ~ ::,Pv-l~_Y_, -'-', ~ `, ~ ~
FORM APPROVED
LEGAL DEPT.
By _ ~~ J
Date ~ ~ ~ 3 ~
-78-
FINAL
October 23, 1991
LIMITED JOINDER OF MIAMI BEACH REDEVELOPMENT AGENCY
The Miami Beach Redevelopment Agency (the "Agency")
hereby approves and agrees to be bound by this Amendment insofar
as the Agency, as a separate and distinct entity, is affected or
obligated by the terms of this Amendment, but only to the extent
that the Agency owns any portions of the Marina Site, has
regulatory control of the Marina Site (pursuant to the provisions
of the Community Redevelopment Act and/or certain licenses and
permits which may be held by the Agency ,for the construction,
development and operation of the Marina), or has authority to
issue tax increment bonds.
Signed, sealed, and delivered
in the presence of:
--
-~
Miami Beach: Re ~vel~ent /
Agency ,. ~ j ,
,' ~
% ;
i ~~ ~.
~ Chair, an
~ ~ ---~ ~
l/~ , ~ ~- t
Attest: ~ ~~~~~_e~ ~ -- I,~Y ~wi_
LIMITED JOINDER OF ESCROW AGENT
Fine Jacobson Schwartz Nash Block & England, P.A.
agrees to act as "Escrow Agent" subject to the terms, conditions,
provisions, and limitations set forth in this Amendment,
including, but not limited to, those set forth in Exhibit 7.
Signed, sealed, and delivered
in the presence of:
L ~ ~ __._.
y/ F
Fine Jacobson Schwartz Nash
Block & England, P.A~
i
176RL1315F
-79-
FINAL
October ?_3, 1991
[.TST fJF EXHIRTTS
EXHIBIT 1
i~EGAL• DES _RTPTTt~N
F'.XHTBIT 2
RENT GUARANTY
F.XHTBIT 3
TORE B rr.nTNf~ IM ROV .MFNTS t1ARANTv
EXHIBIT 4
I?RY STACK,/WE'i' SLIPS QUA ANTY
EXHIBIT 5
INDEMNTTy ~[[ARANTV
EXHIBIT 6
CROW PROVTSTnNS
EXHIBIT 7
FORM OF TF.RMTNATTnA; pjp TC'F
F.XHTBTT $
:~
FINAL
~October.23, 1991
M~ITLTAT,T.y A _CF.PTAR7,F. p ANS AND ONTRA['mS
EXHIBIT 9
PROCEDURES FOR PAYMENT
EXHIBIT 1
LEGAL DESCRIPTION
ARRA 1
AI! of Lots 22 through 29, Inclusive, and Lot 21, less the southerly 40 feet
thereof of; In 81oek ! ! !, o! OCEAN BEACyi FLORIDA ADDITION NO. 3,
according to the Piat thereof as recorded in Plat Book 2, page E 1, o! the Pu51it:
Rrcotds of D~dc Covnty, Florida; together with a 40-loot right-ol-way on thc•
Bay side of tht Hope and Rebet:ea Tower property, (bcins Lots I S through 20
and the southerly 40 feet o1 Lot 21 in 91ock 11 !, of OCEAN REACH FLORIDA
ADDITION NO. ~); together wish an easement over or under an0 upon the
westerly !OD feet of Lots j0 and 3!, a!1 in Block I t f, OCEAN BEACH
FLORIDA ADDITION NO, j, as recorded in Plat Book 2, page bl, of the Public
~Reeords of Dade County, Florida.
TOGETHER NITHs
The /Nrst Z feet of Lots iS through 20, inclusive, and
the westerly 40 feet of the southerly 40 feet of Lot
21, in Block 111, of OCE~lI~1 BBACH FLORIDA ADDITION N0.
3, according to the Plat thereof aa~ recorded in Plat
Book 2, Page 81, of the Bublic Records of Dade County,
Florida.
(Legal description in this Exhit 1 is subject to reconciliation and verificatior
prior to the execution of any Memorandum of the First Amendment or recording
of same in the Public Records.)
• ~
r~~ Z
.:.
. ttc~ otsutttttoa
Mt571t tiUp l1151IM '
D Hrtteu •t 1aM 1i1M Mst et eM sUettet t• ~lett 111 t1 ~[~ ~~~ II,A.
>~tTtO.t Qp.) •eceMt to tf-e t+1et tM-tet s: rtcereN to -tst t~et
M ~. ~t
2ttt !i N tAt hrtitt Rturh •t Ottt ~V. rytrl0t. srn Mrtitei•ri2 Ot-
itttUt! ti t~ittla: tstrott •t• tJ-t
Mbrti+rttt t•rotr •t SittiM !, Tt+wtty
N ~tA Rsalt ~ E+st. ptett t~ Asttr i1 tltt
tiM !ter 1n0.OD tat. trre K 1sys~ b ~ ~etet; •~ Mt test tUtt et ~1sct
f0 •t tAe eterse~tle.te tt•t; tttact etro f00 ~0 00'[ e1
MI tft Gst tint et
tticts tl'. •f. p. n. K. tf. N, p. !t. h. 10. ?!.. a•e •
111 ewe at Nrtten et Ilsct
~ tltelr ftwtntrli eattntleet ter u01 fret p t>tt featAettt tinier
et let 1, fleet 111 et ssfl SeNtrisfeu; tlt~ce -rre ft!`OS•011'1i slen! t>tt S.ru
floe et sate let 1. pect 111 ter ti0,00 Lett U a Nfet M tUt Istt ntterltM
et ltscs~e N7. ssle Dotet •lse ~clq tAt !'OtItT OF KCti0tliC et tAe TrKt et
taM lttrefa~tttr ettcrt~N; t!-tece rM Ut'00.001t. e1eM a tree 70D. fret tint
of ewe Dtrelttl a tic Yesterly Rtii~t et ltey ltae et A1tM tisoe ter tr50.00
~tett t• . D.f~t: t*e~ce etin ats~s~•2rsi ter »s.a rtet to M tottr:ectlso tin
,• • lfae tint is )f.ON tttt IbrL!-erlf ei s•e Diralltt L t>tt tbrt!- fret et • let
eeslDnttte t! t •~ ;~ «, tl-e ~~~0 Kltt et lOTS e) v f0. tIOGL itt, OtEAi
tLt.CN• iU.. A~ptTItM „o, 2 •s rtcorets le flat Heel is
. et t•St fps o! rte
-v>ttlc tteceres o! t-eee tarty, iloriea; thence rvn SSt`0~•00-~ at rf~t ayln
to sal! Ittten >loae !er ;00,25 test to • Dotnt; ti-tnct oyu S3:'00'W'[ ttr tt1. 00
tttt to • Defat; t~exe rea SSi•r0•M`:: for 1s0.00 fret eta tet• +
M tiwce tM .
SS2'00•t~"t ter t~p.00 tee: to a Detn;; teence rM ~2•,00•CO'E ter 150.00 fret
to • Doter; tliewct rw i22'OD•0~ •[ for ft2.p itet V a Doiw;; tittect t>N
ur2;•OS•t ter ~.2= feet to a Dotnt: hence ,yn ~.!'00.OD't ter 120.00 tstt.
• core er tits. to oteer 1•R:s e~ tre ~s;~ e! 'ttr~i teace; tt+e~et r~ ~2•W'a'~
for 2i. lie:, re.-t o• loss. !~ e:•~e- t:r.:s a! :re :s:y et te:nf tciet~• ~ ve
-OI:.T Of iiGt::.i:x: co~+tatnt~Z 1.ic!•itt share teec ~=1.D! ae-es~. eert er ltss.
;~
'• ~
t•tt ~ u.a•t. 11 tat..ls •1•tt 11 tw. ftAC• -tA.. tNIt,M .•. t, stc..a.! t.
1• I .t tN.N1. Mt.-•.. ~~ -,.t Ni ~•t MN ~~ •t u. N.tlt -•t...t •1 !ap
~.•.4 I.1•-1Nt tty.tN- ~Itt tb N i..t `•itst•.t
tact •; •tt.. Mat •.. ittt •t *. iti-. !tw •t ~ttccs.~tij ~~~iiii~ttii~ttitliii:•
.. ts. •N.. -•t•-..c.. tac.n ~I.t.
uto tKCt•c• 11tri:
X11 q.t ~.-t •f t1. i..t~ I~t.N t..t .t f.cet.. 11. t.w~st~ SI t.~ta. ~~~~• t! t.~t.
..M tN.y• I,•.IN. M-t-iM. •• 1•it•gt
t•w.c. •t • t•t w tN !•-tt•-1t 1/s. •1 t•t• Nttl•. 11 t t.lt t.rtts.l- Itw
!•lat .sw. t~q tN f••t•.t~t tts+• s+t ttct•t.. tt.••t • w . Nt.t /•t ts.
t•t.r.•.tta N t1• t N-1 !N N 11•tt•.iw Att~q N~ttp! ~at!•-1' tt.ttt tl.t.~••
ttn.tl h..s. -•• t.;~t!•a~•t. t t~s •s .st•. t•.tw-t ~~ t.. t•tq-1! 11•. •/
I•tt n • •~•sw • Fitts~ N ~!!~ 11
s-s~t~= tN ~KM-t~tity :I~t1N s • i • atN /~l.N •••i•tlb • tlw
~~~ ~:'t~l'. i~i. ~t~ ~-t -sa~ j•.•~•~t.- Nst-IN•. Tb.ts w t•t.t •t
t1. •1•n tiM N ~Iss test t+..tf•••t qr.t•. • tttt.•ts N tt f•.t. M..N-t1~~• t•
•tse.ra. •ss. • llsat+s. NN i~ fNt. r.M M 1„t. ~. ts,. t•tsn.ctf.. •t tst. s..ts•.1
tlw •t sat. Nettq iii T~a.s. ter. «.•t•!t•tt•t. •1..! tN NnN.I• tlp .I t.ett.. Ij.
•i•. t.. l..u.-tii tts~. ~t Ot.e.~. tt...t • •tsq.ss .t iti.i I..t. w.s « t.t• t•
• N~.t Iit.N t..t t.tt.-If. ~. N.taM. •~
tN I.tt.s.stt...t t1. •.ta..1.. •.atN.1t ~itltN~tiitiilil~lN •• i.It...q j~~aw~~
TN.s. -t• t. 1•i!'~•• t.~ • ~i.t.K• N Iu.N t..t b tN ht~t .t •.~t.•t.t ~~,•.t, 1,
t-aa Ncc*tNt q.tttaa t•.!!s .taa.r f..t. r.. •- l.it ~- •.!!i! ~c-ra. . an •r 1••a.
;~
r ~•.
Lots !0 through 42, inclusive. in •loctc 111, of OCf.~W
REACH FLORIDA J-DDiTION' N0. 3. •ccordinq to the plat
thereof •s recorded in Plat Rook 2. gage S1, ~i.the
?ublic Records of Dade County, Florida; and •li of DADS
COUNTY PROPERTY OF MiAMt DE11CM. according to the Plat
thereof recorded in Plat Sook 31. at page 70, of the
Public Aecordt of Dade County, Florida, •lso described
•s tl~e amended Piat of Lots 41 through S0, inclusive,
itt Dlock 111, Of OCF.1W eF.J1CH E1.OR1D11 ADDITION NOS
according to the Plat thereof as recorded in Piat Aook
2. page al, of the Public Records of Dade County,
Florida. ,
CP:178CP1347D
:~
FItJAI
^ri;,b2r ^3. 1'191
RENT GIIARANTY
This Guaranty is made and entered _ato as cr t:~ic ~3ay
of October, 1991 by Heller Financial, Inc. ("Heller'`, `_~e parent
corporation of Tallahassee Building Corporation ("TBC").
This Guaranty is entered into pursuant to Section 2.7 of the
First Amendment to the Marina Lease Agreement between the City of
Miami Beach (the "City") and Tallahassee Building Corporation of
even date herewith (the "Amendment"). As a material inducement for
the City to enter into the Amendment and in consideration of other
valuable consideration, the receipt of which is hereby
acknowledged, Heller agrees as follows:
SECTION 1. The Guaranty. Heller hereby .unconditionally
guarantees, subject to Section 2 below, the full and punctual
payment by TBC of the rentals due from TBC to the City under the
Marina Lease as modified by the Amendment ( the "Modified Lease")
for the 24 month period commencing with the execution of this
Guaranty ("Guaranteed Amounts"). Upon failure by TBC to pay
punctually any such Guaranteed Amounts, Heller. shall forthwith on
demand pay the amount not so paid at the place and in the manner
specified in the Modified Lease. The City shall not have the right
to accelerate rent or terminate the Modified Lease for non-payment
of rent, unless Heller fails to perform under this Guaranty within
ten (10) days after written demand from the City. Performance by
Heller under this Guaranty shall constitute performance by TBC
under the Modified 'Lease. Heller shall have the continuing
~«
obligation to pay any rent which would have been due and payable by
EXHIBIT 2
:INAL
October 23, 1991
TBC during t::e above described 24 month period, notwithstanding any
;.ermination ~f `_::e t4odifi~d '_2ass era ~~? ease of '^IIC Dursuant to
the Amendment.
SECTION 2. Limitation on Guaranty Amount. The maximum amount
recoverable under this Guaranty shall be limited to three hundred
twenty thousand dollars ($320,000), less all amounts of rent
actually paid by TBC to City during the 24 month period.
SECTION 3. Guaranty Unconditional. The obligations of Heller
hereunder shall not be released, discharged or otherwise affected
by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of TBC under the Modified
Lease which does not materially increase TBC's obligations;
(ii) any modification or amendment of or supplement to the
Modified Lease;
• (iii) any release, non-perfection or invalidity of any direct
or indirect security for any obligation of TBC under the Modified
Lease; -
(iv) any change in the corporate existence, structure or
ownership of TBC, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting TBC or its assets;
(v) the existence of any claim, set-off or other rights which
Heller may have at any time against TBC, the City, the Miami Beach
Redevelopment Agency (the "Agency") or any other corporation or
person, whether iii~,.connection herewith or any unrelated
~«
2
FINAL
~~Jctober 23, 1991
transactions, provided that nothincr hn_rein ^hall prevent the
~~sser~_..:. _~ any such claiW ~1 _eFa_a_- =uit ~r ^^'^~:~~lsorv
counterclaim;
(vi) any other act or omission to act or delay of any kind by
TBC, the Escrow Agent, the City, the Agency or any other
corporation or person in dealing with Heller which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of Heller's obligations hereunder.
SECTION 4. Discharge Only Opon Payment In Full; Reinstatement
in Certain Circumstances. Heller's obligations hereunder shall
remain in full force and effect until the Guaranteed Amounts set
forth in Section 1 hereof shall have been paid in full. If at any
time any rental payment under the Modified Lease is covered by this
Guaranty is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of TBC or
otherwise, Heller's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but
not made at such time.
SECTION 5. Aaiver by Heller. Heller irrevocably waives
acceptance hereof, presentment, demand and protest, as well as any
requirement that at any time any action be taken by any corporation
or person against TBC Borrower or any other corporation or person.
SECTION 6. Subrogation. Upon making any payment hereunder,.
Heller shall be subrogated to the rights of the payee against TBC
with respect to such~,•payment; provided that Heller shall not
.~
3
:INAL
•Oetober 23, 1991
enforce any payment by way of subrogation until all Guaranteed
tiraounts have r~een paid in °::'_1.
SECTION 7. Stay of Acceleration. If acceleration of the time
for payment of any Guaranteed Amount under the Marina Lease is
stayed upon the insolvency, bankruptcy or reorganization of TBC,
all such amounts otherwise subject to acceleration under the terms
of the Agreement shall nonetheless be payable`by Heller hereunder
forthwith on demand by the City.
SECTION 8. Representations and Warranties.
Heller represents and warrants to the City that:
(aj Heller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted;
(b) the execution, delivery and performance by Heller of this
Guaranty, and the consummation of the transactions contemplated
hereby, are within Heller's corporate powers, have been duly
authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any
provision of applicable law or regulation (including without
limitation Regulation U or X) or of the certificate of
incorporation or by-laws of Heller or of any agreement, judgment,
injunction, order, decree or other instrument binding upon Heller
..
4
FINAL
October 23, 1991
or result in the creation or imposition of any lien on any asset of
Heller or any of its subsidiaries;
(c) this Guaranty constitutes a valid and binding agreement of
Heller enforceable in accordance with its terms; and
(d) Heller is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
8ECTION 9. Notices. All not:.ces, requests and other
communications hereunder shall be in writing (including bank wire,
telex, telecopy or similar writing) and shall be given to Heller,
TBC, the Escrow Agent, the City or the Agency, as the case may be,
at its address, telex number or telecopier number set forth on the
signature pages of this Guaranty or the Agreement or such other
address, telex number or telecopier number as such party may
hereafter specify for. the purpose by notice to the Agent, TBC and
Heller. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to
the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mai1,~72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section.
SECTION 10. Florida Law. This Guaranty shall be construed in
accordance with and governed by the law of the State of Florida.
SECTION 11. Submission of Jurisdiction. Heller hereby submits
to the non-exclusive'~.urisdiction of the United States District
<<
5
FI2JAL
-Qctober 23, 1991
Court for the Southern District of Florida and of any Circuit
court sitting in Dade County, Florida, for purposes of all legal
proceedings which may arise hereunder. Heller irrevocably waives,
to the fullest extent permitted by law, any objection which it may
have or hereafter have to the laying of the venue of any such
proceeding brought in such a court and arty ,claim that any such
proceeding brought in such a court has been brought in an
inconvenient forum.
SECTION 12. No Waivers. No failure. or delay by the City or
the Agency in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative'~and not exclusive
of any rights or .remedies provided by law.
SECTION 13. Expenses. Heller shall pay all out-of-pocket
expenses incurred by the City or the Agency, including fees and
disbursements of counsel, in connection with collection and other
enforcement proceedings relating to this Guaranty.
<.
6
FINAL
October 23, 1991
IN WITNESS WHEREOF, Heller has caused this Guaranty to be duly
executed by its duly authorized officer as of the day and year
first above written.
Witnesses
PNB:lm
C:agreenien\rentgar.car
October 23, 1991
Heller Financial, Inc.
By
Title: Paul Chapman
Vice President
7
r irw~
October 23, 1991
0
coaE BvILDZxG IMpxove: GoABe~i'1'7[
This Guaranty is made and entered into as of this day
of October, 1991 by Heller Financial, Inc. ("Heller"), the parent
corporation of Tallahassee Building Corporation ("TBC").
This Guaranty is entered into pursuant to Section 2.9 of the
First Amendment to the Marina Lease Agreement between the City of
Miami Beach (the "City") and Tallahassee Building Corporation of
,.
even date herewith (the "Amendment"). As a material inducement for
the City to enter into the Amendment and in consideration of other
valuable consideration, the receipt of which is hereby
acknowledged, Heller agrees as follows:
SECTION 1. The Guaranty. Heller hereby unconditionally
a guarantees, subject to Section 2 below, the full and punctual
performance of all obligations of TBC to the City for construction
of the Core Building Improvements set forth in Sections 2.13 and
2.14 of the Amendment (the "Obligations"). The Marina Lease, as
modified by the Amendment is hereby defined as the "Modified
Lease". The City shall not have the right to terminate the
Modified Lease for failure of performance of-the Obligations of
TBC, unless Heller fails to commence performance under this
Guaranty within thirty ( 3 0 ) days after written demand from the City
and diligently pursue such performance with continuity to
completion. Performance by Heller under this Guaranty shall
constitute performance by TBC under the Modified Lease. Heller
acknowledges and agrees that in the event Heller fails to perform
~ under this Guaranty, th!c City shall have the right to seek monetary
EXHIBIT 3
FINAL
October 23, 1991
damages or specific performance against Heller, or exercise any
right or remedy allowed in law or equitti.
SECTION 2. Limitation on Guaranty Amount. The maximum amount
recoverable under this Guaranty shall be limited to three million
five hundred thousand dollars ($3,500,000), less the amount
actually expended by TBC with respect to the Obligations.
SECTION 3. Guaranty unconditional. The obligations of Heller
hereunder shall not be released, discharged or otherwise affected
by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of TBC under the Modified
Lease which does not materially increase TBC's obligations;
(ii) any modification or amendment of or supplement to the
Modified Lease; ..
(iii) any release, non-perfection or invalidity of any direct
or indirect security for any obligation of TBC under the Modified
Lease;
{iv) any change in the corporate existence, structure or
ownership of TBC, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting TBC or its assets;
(v) the existence of any claim, set-off or other rights which
Heller may have at any time against TBC, the City, the Miami Beach
Redevelopment Agency (the "Agency") or any other corporation or
person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
~«
2
FINAL
.October 23, 1991
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any other act or omission to act or delay of any kind by
TBC, the Escrow Agent, the City, the Agency or any other
corporation or person in dealing with Heller which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of Heller's obligations hereunder.
SECTION s. Discharge Only IIpon Performance In Full. Heller's
obligations hereunder shall remain in. full force and effect until
all the Obligations of TBC set forth in Section 1 hereof shall have
been satisfied in full.
SECTION 5. Waiver by Heller. Heller irrevocably waives
acceptance hereof, presentment, demand and protest, as well as any
requirement that at any time any action be taken by any corporation
or person against TBC Borrower or any other corporation or person.
SECTION 6. Subrogation. Upon making any payment hereunder,
Heller shall be subrogated to the rights of the payee against TBC
with respect to such payment; provided that Heller shall not
enforce any payment by way of subrogation until all Guaranteed
Amounts have been paid in full.
SECTION 7. Extension of Performance. If the time for
performance of the Obligations under the Modified Lease is extended
upon the insolvency, bankruptcy or reorganization of TBC, all such
Obligations of TBC under the Modified Lease shall nonetheless be
performed by Heller hereunder forthwith on demand by the City, as
:~
3
r l~~H~
~c~ober 23, 1991
.CORE BIIZLDIPtG IMPROQEMENT3 GOAR2~NTY
This Guaranty is made :end entered i.rito ns of this day
of October, 1991 by Heller Financial, Inc. ("Heller"), the parent
corporation of Tallahasc~e Building Corporation ("TBC").
This Guaranty is entered into pursuant to Section 2.9 of the
First Amendment to the Marina Lease Agreement between the City of
Miami Beach (the "City") and Tallahassee B~1il.ding Corporation of
even date herewith (the "Amendment"). As a material inducement for
the City to enter into the Amendment and in consideration of other
valuable consideration, the receipt of which is hereby
acknowledged, Eieller agrees as follows:
SECTION 1. The Guaranty. Heller hereby unconditionally
guarantees, subject to Section 2 below, the- full and punctual
performance of all obligations of TBC to the City for construction
of the Core Building Improvements set forth in Sections 2.13 and
2.14 of the Amendment (the "Obligations"). The Marina Lease, as
modified by the Amendment is hereby defined as the "Modified
Lease". The City shall not have the right to`~ terminate the
Mc3ified Lease for failure of performance of the obligations of
TBC, unless Heller fails to commence performance under this
Guaranty within thirty ( 3 0 ) days after written demand from the City
and diligently pursue such performance with continuity to
completion. Performance by Heller under this Guaranty shall
constitute performance by TBC under the Modified Lease. Heller.
acknowledges and agrees that in the event Heller fails to perform
cinder this Guaranty, the. City shall have the right to seek monetary
EXN:61T 3
FINAL
October 23, 1991
if such insolvency, bankruptcy or reorganization of TBC had not
occurred.
SECTION 8. Representations and Warranties.
Heller represents and warrants to the City that:
(a) Heller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
:f
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted;
{b) the execution, delivery and performance by Heller of this
Guaranty, and the consummation of the transactions contemplated
hereby, are within Heller's corporate powers, have been duly
authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any
provision of applicable law or regulation (including without
limitation Regulation U or X) or of the certificate of
incorporation or by-laws of Heller or of any agreement, judgment,
injunction, order, decree or other instrument binding upon Heller
or result in the creation or imposition of any lien on any asset of
Heller or any of its subsidiaries;
(c) this Guaranty constitutes a valid and binding agreement of
Heller enforceable in accordance with its terms; and
(d) Heller is not an,"investment company" within the meaning
of the Investment Compan~~Act of 1940, as amended.
- 4
FINAL
October 23, 1991
SECTION 9. Notices. All notice, requests and other
communications hereunder shall be in writing (including bank wire,
telex, telecopy or similar writing) and shall be given to Heller,
TBC, the Escrow Agent, the City or the Agency, as the case may be,
at its address, telex number or telecopier number set forth on the
signature pages of this Guaranty or the Agreement or such other
:~
address, telex number or telecopier number as such party may
hereafter specify for the purpose by notice to the Agent, TBC and
Heller. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to
the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other
means,. when delivered at the address specified in this Section.
SECTION 10. Florida Law. This Guaranty shall be construed in
accordance with and governed by the law of the State of Florida.
SECTION 11. Submission of Jurisdiction. Heller hereby submits
to the non-exclusive jurisdiction of the United States District
Court for the Southern District of Florida and of any Circuit
court sitting in Dade County, Florida, for purposes of all legal
proceedings which may arise hereunder. Heller irrevocably waives,
to the fullest extent permitted by law, any objection which it may
have or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such
,.
5
FItJAL
October 23, 1991
proceeding brought in such a court has been brought in an
SECTION 12. No Waivers. No failure or delay by the City or
the Agency in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
SECTION 13. Expenses. Heller shall pay all out-of-pocket
expenses incurred by the City or the Agency, including fees and
disbursements of counsel, in connection with collection and other
enforcement proceedings relating to this Guaranty.
IN WITNESS WHEREOF, Heller has caused this Guaranty to be duly
executed by its duly authorized officer as of the day and year
first above written.
Witnesses
Heller Financial, Inc.
PNB:lm
C:agreemen\COREBUILD•CAR
October 23, 1991
.:[
By
Title: Paul Chapman
Senior Vice President
6
FINAL
UC~u^D2r' ":,t~9I
DRY STACK FACILITY GI7ARANTY
't'his ~~~.~aranty is Wade and anLered into as or: cnis day
of October, 1991 by Heller Financial, Inc. ("Heller"), the parent
corporation of Tallahassee Building Corporation ("TBC").
This Guaranty is entered into pursuant to Section 2.9 of the
First Amendment to the Marina Lease Agreement between the City oz
Miami Beach (the "City") and Tallahassee Building Corporation or
even date herewith (the "Amendment"). As a material inducement for
the City to enter into the Amendment and in consideration of other
valuable consideration, the receipt of which is hereby
acknowledged, Heller agrees as follows:
SECTION 1. The Guaranty. Heller hereby unconditionally
guarantees, subject to Section 2 below, the full and punctual
performance of all obligations of TBC to the City~for construction
of the Dry Stack Facility set forth in Sections 2.15 and 2.16 oL
the Amendment {the "Obligations").`i'he Marina Lease, as modified by
the Amendment is hereby defined as the "Modified Lease". The City
shall not have the right to terminate the Modified Lease ror
failure of performance of the Obligations of TBC, unless Heller
fails to commence performance under this Guaranty within thirty
(30) days after written demand from the City and diligently pursue
such performance with continuity to completion. Performance. by
Heller under this Guaranty shall constitute performance by TBC
under the modified Lease. Keller acknowledges and agrees that in
the event liel ler fails • ,to perform under this Guaranty, the City
:~
shall gave the right to seek monetary damages or specific
E;{NI(3IT 4
FINAL
October ~3, 1991
-~rr~r:aance against Heller, or exercise any riGht :,r remedy allowed
~n 13w ~r equity.
SECTION 2. Limitation on Guarant;~ :mount. ';'he ::,axi:aum amount
recoverable under this Guaranty shall be limited to three million
dollars ($3,000,000), less the amount actually expended by TBC with
respect to the Obligations.
SECTION 3. Guaranty Onconditional. The obligations of Heller
hereunder shall not be released, discharged or otherwise affected
by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of TBC under the Modified
Lease which does not materially increase TBC's obligations;
(ii) any modification or amendment of or supplement to the
Modified Lease;
(iii) any release, non-perfection or invalidity of any direct
or indirect security for any obligation of TBC under the Modified
Lease;
(iv) any change in the corporate existence, structure or
ownership of TBC, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting TBC or its assets;
(v) the existence of any claim, set-off or other rights which
iieller may have at any time against TBC, the City, the Miami Beach
Redevelopment Agency (the "Agency") or any other corporation or
person, whether in ,.connection herewith or any unrelated
:~
2 .
FINAL
October 23, 1991
~~3nsactions, provided that ~othincx Herein shall prevent the
assertion of. any such claim by separate suit or compulsory
counterclaim;
(vi) any other act or omission to act or delay of any kind by
TBC, the Escrow Agent, the City, the Agency or any other
corporation or person in dealing with Heller which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of Heller's obligations hereunder.
SECTION 4. Discharge only Upon Performaace In Full. Heller's
obligations hereunder shall remain in full force and effect until
all the Obligations of TBC set forth in Section 1 hereof shall have
been satisfied in full.
SECTION 5. Waiver by Heller. Heller irrevocably waives
acceptance hereof, presentment, demand and protest, as well as any
requirement that at any time any action be taken by any corporation
or person against TBC Borrower or any other corporation or person.
SECTION 6. Subrogation. Upon making any payment hereunder,
Heller shall be subrogated to the rights of the payee ac,~ainst TBC
with respect to such payment; provided that Heller shall not
enforce any payment by way of subrogation until all Guaranteed
Amounts have been paid in full. -
SECTION 7. Extension of Performance. If the time for
performance of the Obligations under the Modified Lease is extended
upon the insolvency, bankruptcy or reorganization of TBC, all such
:~
3
FINAL
October 23, 1991
obligations of TBC under the Modified Lease shall nonetheless be
perrorried by Heller hereunder forthwith on demand by the City, as
ii such insolvency, bankruptcy or reorganization of TBC had not
occurred.
SECTION 8. Representations and Warranties.
Heller represents and warrants to the City,. that:
(a) Heller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted;.
(b) the execution, delivery and performance by Heller of this
Guaranty, and the consummation of the transactions contemplated
hereby, are within Heller's corporates powers, have been duly
authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a defacult under, any
provision of applicable law or regulatio.-1 (including without
limitation Regulation U or X) or of the certificate of
incorporation or by-laws of Heller or of any agreement, judgment,
injunction, order, decree or other instrument binding upon Heller
or result in the creation or imposition of any lien on any asset of
Heller or any of its subsidiaries;
.:~
4
FINAL
October 23, 1991
!c) this Guaranty constitutes a valid and bindinq agreement of
Heiler enforceable in accordance with its terms; and
~d) fieller is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 9. Notices. All notices, requests and other
communications hereunder shall be in writing (including bank wire,
telex, telecopy or similar writing) and shall be given to Heller,
TBC, the Escrow Agent, the City or the Agency, as the case may be,
at its address, telex number or telecopier number set forth on the
signature pages of this Guaranty or the Agreement or such other
address, telex number or telecopier number as such party may
hereafter specify for the purpose by notice to the Agent, TBC and
Heller. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to
the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section.
SECTION 10. Florida Law. This Guaranty shall be construed in
accordance with and governed by the law of the State of. Florida.
SECTION il. Submission of Jurisdiction. Heller hereby submits
to the non-exclusive jurisdiction of the United States District
Court for the Southern. District or Florida and of any Circuit
;~
5
FINAL
.October 23, 1991
r_ourt sitting in Dade County, Florida,
proceedings ti~tiich may arise hereunder.
to the rullesL extent permitted by law,
have or hereafter have to the laying
proceeding brought in such.a court an
proceeding brought in .such a court
inconvenient forum.
ror purposes of all legal
Heller irrevocably waives,
any objection which it may
of the venue of any such
d any claim that any such
has been brought in an
SECTION 12. No Aaivers. No failure or delay by the City or
the Agency in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
SECTION 13. Expenses. Heller shall pay all out-of-pocket
expenses incurred by the City or the Agency, including fees and
disbursements of counsel, in connection with collection and other
enforcement proceedings relating to this Guaranty.
;~
6
FINAL
October 23, 1991
IN WITNESS WHEREOF, Heller has caused this Guaranty to be duly
executed by its duly authorized officer as of the day and year
first above written.
Witnesses
Heller Financial, Inc.
PNB:lm
C:agreeaien\drystack.car
October 23, 1991
\1
:f
By
Title: Paul Chapman
Senior Vice President
7
FINAL
Gctober 23, 191
INDEMNITY GIIARANTY,
This Guaranty is made and entered into as of this day
of October, 1991 by Heller Financial, Inc. ("Heller"), the parent
corporation of Tallahassee Building Corporation ("TBC").
This Guaranty is entered into pursuant to Section 2.7 of the
First Amendment to the Marina Lease Agreement between the City of
Miami Beach (the "City") and Tallahassee Building Corporation of
even date herewith (the "Amendment"). As a material inducement for
the City to enter into the Amendment and in consideration of other
valuable consideration, the receipt of which is hereby
acknowledged, Heller agrees as follows:
SECTION 1. The Guaranty. Heller hereby unconditionally
guarantees, subject to Section 2 below, the full and punctual
payment of all obligations of TBC to the City under indemnity for
violation of Environmental Laws as set forth in Section 2.23 of the
Amendment ("Guaranteed Amounts"). The Marina Lease as modified by
the Amendment is defined as the "Modified Lease". Upon failure by
TBC to pay punctually any such Guaranteed Amounts,' Heller shall
forthwith on demand pay the amount not so paid. The City shall nit
have the right to terminate the Modified Lease for non-payment or
any Guaranteed Amount, unless Heller fails to perform under this
Guaranty within ten (10) days after written demand from the City.
Performance by Heller under this Guaranty shall constitute
performance by TBC under the Modified Lease. The obligations of
Heller under this Guaranty shall survive the termination of the
:~
EXIii6IT 5
FINAL
October 23, 1991
Modified Lease with respect to all operations of Lessee (or other
enumerated parties) prior to the date of termination.
SECTION 2. Limitation on Guaranty Amount. The maximum amount
recoverable under this Guaranty shall be limited to one million
dollars ($1,000,000).
SECTION 3. Guaranty Unconditional. The obligations of Heller
hereunder shall not be released, discrarged or otherwise affected
by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of TBC under the Modified
Lease which does not materially increase TBC's obligations;
(ii) any modification or amendment of or supplement to the
Modified Lease;
(iii) any release, non-perfection or invalidity of any direct
or indirect security for any obligation of TBC under the Modified
Lease;
(iv) any change. in the corporate existence,~structure or
ownership of TBC, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting TBC or its assets;
(v) the existence of any claim, set-off or other rights which
Heller may have at any time against TBC, the City, the Miami Beach
Redevelopment Agency (the "Agency") or any other corporation or
person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
. ;~
- 2
i'IPlAL
GctOber 23, 1991
assertion of any such claim by sepazate suit or compulsory
(vi) any other act or omission to act or delay of any kind by
TBC, the Escrow Agent, the City, the Agency or any other
corporation or person in dealing with Heller which might, but for
the provisions of this paragraph, constitute ,a legal or equitable
discharge of Heller's obligations hereunder.
SECTION 4. Discharge Only Upon Payment In Full; Reinstatement
in Certain Circumstances. Heller's obligations hereunder shall
remain in full force and effect until the Guaranteed Amounts set
forth in Section 1 hereof shall have baen paid in full. If at any
time any Guaranteed Amount covered by ti~is Guaranty is rescinded or
must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of TBC: or otherwise, Heller's
obligations hereunder with respect ~LO such payment shall be
reinstated as though such payment had baen due but not :Wade at such
time.
SECTION 5. Waiver by Heller. Heller irrevocably waives
acceptance hereof, presentment, demand and protest, as well as any
requirement that at any time any action be taken by any corporation
or person against TBC Borrower or any other corporation or person.
SECTION s. Subrogation. Upon making any payment hereunder,
Heller shall be subrogated to the riyht~ of the payee against TBC
with respect to such payment; provided that Heller shall not
:~
3
FINAL
October 23, 1991
enforce any payment by way of subrogation until all Guaranteed
Amounts have been paid in full.
SECTION 7. Stay of Acceleration. If acceleration of the time
for payment of any Guaranteed Amount under the Marina Lease is
stayed upon the insolvency, bankruptcy or reorganization of TBC,
all such amounts otherwise subject to acceleration under the terms
of the Agreement shall nonetheless be payable by Heller hereunder
forthwith on demand by the City.
SECTION 8. Representations and Warranties.
Heller represents and warrants to the City that:
(a) Heller is a corporation duly incorporated, validly
existing and in good standing under the laws of` the State of
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents.. and approvals
required to carry on its business as now conducted;
(b) the execution, delivery and performance by Heller of this
Guaranty, .and the consummation of the transactions contemplated
hereby, are within Heller's corporate powers, Have been duly
authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any
provision of applicable law or regulation (includi-ng without
limitation Regulation U or X) or of the certificate of
incorporation or by-laws of Heller or of any agreement, judgment,
injunction, order, dec~'ee or other instrument binding upon Heller
-«
4
FIPiAL
October 23, 1991
or result in the creation or imposition of, any lien on any asset of
tieilar ~~r sny ~r its subsidiaries;
(c) this Guaranty constitutes a valid and binding agreement of
Heller enforceable in accordance with its terms; and
(d) Heller is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
r
SECTION 9. Notices. All notices, requests and other
communications hereunder shall be in writing (including bank wire,
telex, telecopy or similar writing) and shall be given to Heller,
TBC, the Escrow Agent, the City or the Agency, as the case may be,
at its address, telex number or telecopier number set forth on the
signature pages of this Guaranty or the Agreement or such other
address, telex number or telecopier number as such party may
tiereattci~ ~puc;ity lur ttie purpose by notice to the Ayint, '1'130 snd
Heller. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to
the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section.
SECTION 10. Florida Law. This Guaranty shall be construed in
accordance with and governed by the law of the State of Florida.
SECTION 11. Submission of Jurisdiction. Heller hereby submits
to the non-exclusive jurisdiction of the United States District
~..
5
FINAL
October 23, 1991
Court ~r `he southern District of Florida and of any Circuit
.::,urt =~..t~==3 _-: ~`ade Ccunt1~, Florida, for purposes of all legal
proceedings which ray arise hereunder. Heller irrevocably waives,
to the rullest extent permitted by law, any objection which it nay
have or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such
:~
proceeding brought in such a court has been brought in an
inconvenient forum.
SECTION 12. No Waivers. No failure or delay by the City or
the Agency in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
SECTION 13. Expenses. fieller shall pay all out-of-pocket
expenses incurred by ,the City or the Agency, including fees and
disbursements of counsel, in connection with collection and other
enforcement proceedings relating to this Guaranty.
;~
6
c IilAL
October "' 3 , ?.391
LiI ?iIT:tESS c•THEREOF, Heiler has c:lusea•zhis Guaranzl to be duly
._ . _ ,~,_.~ - ; r_~ ~~nlv auznor~zea ~~r~:.~~r .~ ..~ ~ .:ay and :ear
~irsz .~t;o~:e wry ctan.
Witnesses
Heller Financial, Inc.
By
Title: Paul Chapman
Senior Vice President
PNB:lm
C:agreemen~INGEHGAR.CAR
October 23, 1991
7
EXHIBIT ~
E'SCR~W ppO~~T S Inr.~c
1. Escrow Agent undertakes to perform only such
duties as are expressly set forth in the Amendment. Escrow Agent
shall not be deemed to have any implied duties or obligations
under or related to the Modified Lease, including the Amendment.
:~
Escrow Agent is the law firm represe;iting Lessee. In the event
of a dispute between the parties, the parties consent to Escrow
Agent continuing to represent Lessee, notwithstanding that Escrow
Agent shall continue to have the duties provided for in the
Amendment.
2. Escrow Agent may (i) act in reliance upon any
writing or instrument or signature which it, in good faith,
believes to be genuine; (ii) assume the validity and accuracy of
any statement or assertion contained in such a writing or instru-
ment; and (iii) assume that any person purporting to give any
writing, notice, advice, or instructions in connection with the
provisions of the Amendment has been duly authorized to do so.
Escrow Agent shall not be liable in any manner for the suffi-
ciency or correctness as to form, manner of execution, or valid-
ity of any instrument deposited in escrow, or as to the identity,
authority, or right of any person executing any instrument.
Escrow Agent's duties under the Amendment are and shall be lim-
ited to those duties specifically provided in the Amendment.
;~
3. The parties to the P-mendment do and shall indem-
^ify~ Escrow Aaent and hold .t harmless .~om =ny 3nc all claims,
liabilities, losses, actions, quits, or proceedings ,~t law or in
equity, or other expenses, lees, or charges of any character or
nature, including attorneys' fees and costs, which it may incur
or with which it may be threatened by reason of its action as
Escrow Agent under the Amendment, except for such matters which
are the result of Escrow Agent's gross negligence or willful mal-
feasance. Escrow Agent shall be vested with a lien on all prop-
erty deposited under the Amendment for the purpose of such indem-
nification, and for any other expense, fees, or charges of any
character or nature, which may be incurred by Escrow Agent in its
capacity as escrow agent. Escrow Agent has and shall have the
right, regardless of any instructions, to hold.. the property
deposited in escrow until and unless such additional expenses,
fees, and charges shall be fully paid.
4. If the parties (including Escrow Agent) shall be
in disagreement about the interpretation of the Amendment, or
about their respective rights and obligations, or about the pro-
priety of any action contemplated by Escrow Agent, Escrow Agent
may, but shall not be required to, file an action in interpleader
to resolve the disagreement. Upon filing such action, Escrow
Agent shall be released from all obligations under the Amendment.
Escrow Agent shall be indemnified for all costs and reasonable
attorneys' fees, including those for appellate matters and for
:~
-2-
paralegals and similar persons, incurred in its capacity as
~~:--cw agent .n connection •.~itr. any .:u~ interpleader action.
Escrow Agent may represent itself in any such interpleader action
and charge its usual and customary legal fees for such
representation, and the court shall award such attorneys' fees,
including those for appellate matters and for paralegals and sim-
filar persons, to Escrow Agent from the losing party. Escrow
Agent shall be fully protected in suspending all or part of its
activities under the Amendment until a final judgment in the
interpleader action is received.
5. Escrow Agent may consult with counsel of its own
choice, including counsel within its own firm, and shall have
full and complete authorization and protection in accordance with
the opinion of such counsel. Escrow Agent shall otherwise not be
liable for any mistakes of fact or errors of judgment, or for any
acts or omissions of any kind unless caused by its gross negli-
gence or willful misconduct.
6. Escrow Agent may .resign upon five (5) days' writ-
ten notice to Seller and Purchaser. If a successor escrow agent
is not appointed jointly by Seller and Purchaser within the five
(5) day period, Escrow Agent may petition a court of competent
jurisdiction to name a successor.
7. These Escrow Provisions shall survive the termina-
tion of the Modified Lease.
178RL1293F
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FINAL
October 23, 1991
(Date)
City Manager Fine Jacobson Schwartz Nash
City of Miami Beach Block and England
1700 Convention Center Drive 100 S.E. 2nd Street
Miami Beach, FL 33139 Miami, FL 33131 `~
Attention: Stuart K. Hoffman, Esq.
or Carter N. McDowell, Esq.
Re: Notice of Termination under First Amendment to Marina Lease
Agreement (the "Amendment") dated October 23, 1991, between
the City of Miami Beach and Tallahassee Building Corporation
pertaining to the Miami Beach Marina.
Dear Mrs. Talarico:
This is to provide you with Notice of Termination by Tallahassee
Building Corporation pursuant to Section of the above
described Amendment. This termination shall be effective on
(the "Termination Date") , which date is not less than 10
or more than 30 days from the date of this letter.
Tallahassee Building Corporation acknowledges and affirms that by
sending this Notice of Termination Tallahassee Building Corporation
shall, effective on the Termination Date, be deemed to have
forfeited and surrendered to the City of Miami Beach all of its
interest in the Modified Lease, as defined in the Amendment, and
all improvements on the Marina Site, as defined in the Modified
Lease, except for Tallahassee Building Corporation's right to
receive that portion of Core Building sublease rental payments
which are attributable to tenant improvements, as provided in
Section 2.11 of the Amendment.
Sincerely yours,
TALLAHASSEE BUILDING CORPORATION
Senior Vice President
C:letters\chapman.tal
October 23, 1991 ;~
EX1iIBIT ~ A
FINAL
October 23, 1991
rtEMORANDIIl~ OF TERMIiiATION OF ,.BABE
KNOW ALL MEN BY THESE PRESENTS
WHEREAS, the City of Miami Beach {the "City"), a Florida
municipal corporation, with a limited joinder by the Miami Beach
Redevelopment Agency (the "Agency") entered into a Lease Agreement
on June 24, 1983, with Career-Mason Associates, Ltd., a Florida
limited partnership ("the "Marina Lease"); and
WHEREAS, a Short Form Lease of the Marina~`Lease was recorded
in the official records, OR Book 11963 at page 1143 on November 9,
1983, in the Public Records of Dade County, Florida; and
WHEREAS, on October 23, 1991, the City with a limited joinder
by the Agency entered into a First Amendment to the Marina Lease
Agreement with Tallahassee Building Corporation, a Florida
corporation, (the "Amendment") and a Memorandum of the First
Amendment was recorded in OR Book page on
1991 in the Public Records of Dade County, Florida;
and
WHEREAS, the Marina Lease and the Amendment are collectively
defined in the Amendment as the "Modified Lease;" and
WHEREAS, the parties to the Modified Lease wish to record in
the Public Records evidence of termination of the Modified Lease
effective on the day of , 1991.
IN WITNESS WHEREOF, the parties, by and through their duly
authorized representatives, have executed this Lease in their
respective names, this day of ~, 19
Signed, sealed and delivered
Witnesses
"CITY"
CITY OF MIAMI BEACH
A Municipal Corporation
By:
Mayor
Attest:
City Clerk
:~
EXHIBIT ~ L
FINAL
` October 23, 1991
STATE JF FLORIDA )
)SS:
COUNTY OF DADE )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State and County aforesaid to take
acknowledgements, personally appeared , well
known to me to be the and
respectively of the CITY OF MIAMI BEACH, a,municipal corporation,
and that they severally acknowledged executing ;the same, freely and
voluntarily under authority duly vested in them by said corporation
and that the seal affixed thereto is the true and corporate seal of
said corporation.
WITNESS my hand and official seal in the County and State last
aforesaid this day of ~ lg ,
NOTARY PUBLIC
My commission expires:
;~
2
FINAL
.October 23 , 1991
Witnesses
"AGENCY"
MIAMI BEACH REDEVELOPMENT AGENCY
gy ; .,
Chairman
Attest:
Secretary
STATE OF FLORIDA )
SS
COUNTY OF DADE )
I HEREBY CERTIFY that on this day, before me,~-an officer duly
authorized in .the State and County aforesaid. to take
acknowledgments, personally appeared and
well known to me to be the and
respectively, of the MIAMI BEACH REDEVELOPMENT
AGENCY, a public agency organized pursuant to the Community
Redevelopment Act of 1969, as amended, and that they severally
acknowledged executing the same, freely and voluntarily under
authority duly vested in them by said corporation and that the seal
affixed thereto is the true and corporate seal of said corporation.
WITNESS my hand and official seal in the County and State last
aforesaid this day of ~ lg
Notary Public
My commission expires:
~:.
3
FINAL
October 23, 1991
Witnesses
TAi.i.~-HASSEE BUILDING CORPORATION
("Lessee^)
By:
Senior Vice President
Attest:
Secretary
STATE OF FLORIDA )
)SS:
COUNTY OF DADS )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State and County aforesaid to take
acknowledgements, personally appeared and
well known to me to be the and
of TALLAHASSEE BUILDING CORPORATION, a Florida
corporation, and he acknowledged executing the same, freely and
voluntarily under authority duly vested in him by said corporation
and that the seal affixed thereto is the true and corporate seal of
said corporation.
WITNESS my hand and official seal in the County and State last
of aforesaid this day of 19
Notary Public
PNB:lm
C:\agreement\me+noterm.car
October 23, 1991
My commission expires:
4
FINAL
October 23, 1991
EXHIBIT u
l1UTCiAL.L. ~' AC -RPTART F p ANG ;.tar) ()NTRAC'^'S
"Mutually Acceptable Plans and Contracts" shall mean
plans and specifications, and as applicable contracts which are
prepared and .approved substantially in accordance with the
following procedures:
1. The party which is obligated under the Modified
Lease to complete specified work (the "Work") in accordance with
Mutually Acceptable Plans and/or Contracts (the "Preparing
Party") shall diligently prepare plans and specifications and/or
contracts for the Work (the "Plans").~ All Plans and/or
contracts shall comply with all ordinances and other governmental
requirements. Approval of Plans and/or contracts by the City
pursuant to these procedures shall not be considered final
approval pursuant to all applicable codes, ordinances and
requirements, unless Lessee specifically requests such approval
in writing. In the event such a request is made, all applicable
time Eran~es shall be doubled.
2. The Preparing Party shall submit the Plans and/or
contracts to the other party (the "Reviewing Party") for the
Reviewing Party's approval. Such approval shall not be
unreasonably withheld.
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FINAL
October 23, 1991
3. The Reviewing harry shall have live ~~orking days
(10 days in the case of the Dry Stack Facility) after its receipt
of the Plans and/or contracts to reject the Plans and/or
contracts by giving written notice to the Preparing Party (the
"Notice"). The Plans and/or contracts shall be deemed approved
if the Reviewing Party fails to give the Notice within the five
working day period.
4. If the Reviewing Party accepts the Plans and/or
contracts, by failing to give the Notice within the five day
period or otherwise, the Preparing Party shall be authorized to
complete the Work in accordance with the Plans and/or contracts
and otherwise in the manner required by the Modified Lease.
5. If the Reviewing Party rejects the Plans and/or
contracts, its Notice shall set forth the reason or reasons for
its rejection.
6. The Preparing Party shall have 30 days after its
receipt of the Notice to:
6.1 prepare and submit to the Reviewing Party
revised Plans and/or contracts which are revised based upon the
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FINAL
October 23, 1991
reason or reasons for rejection set forth in the Plotice (the
"Revised Plans and/or contracts"), or
6.2 give written notice to the Reviewing Party
explaining why the Plans and/or contracts cannot be so revised.
7. The Reviewing Party shall have seven days after
its receipt of Revised Plans and/or contracts to accept or reject
the Revised Plans and/or contracts by giving written notice tc,
the Preparing Party. The Revised Plans and/or contracts shall be
deemed approved if the Reviewing Party fails to give the Notice
within the seven day period.
8. If the Reviewing Party accepts the~~Revised Plans
and/or contracts, by failing to give ttie Notice or otherwise
within the seven day period, the Preparing Party shall be
authorized to complete the Work in accordance witY}, the Revised
Plans and/or contracts and otherwise in the manner required by
the Modified Lease.
9. If the Reviewing Party rejects the Revised Plans
and/or contracts, its Notice shall set forth the reason or
reasons for its rejection.
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FINAL
October 23, 1991
10. If the Preparing Party has given Notice of its
refusal to revise L-he Plans and/or contracts or the Reviewing
Party has given notice of its rejection of the Revised Plans
and/or contracts, the Reviewing Party and the Preparing Party
shall meet within ten days after either such notice has been
received, and attempt in good faith to agree, to Plans and/or
contracts which are mutually acceptable. If the Preparing Party
and the Reviewing Party cannot so agree, then either may pursue
any and all legal or equitable remedies available under the
Modified Lease.
176RL1315F
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FINAL
October 23, 1991
EXHIBIT y
Payments pursuant to Section ~.2~ shall be made
:~
tially in accordance with the following procedures:
party requesting payment (the "Requesting Party") shall
:lude in any request for payment {the "Request") to the
:ent not already provided the following:
~ Summary of payment request; "
'. Copies of executed contracts;
t Copies of invoices;
Copy of permit, if applicable; and
Other items reasonably requested by the party to which
the request for payment is being made {the "Reviewing
Party") ~ '
Reviewing Party shall have five {5) working days after
eipt of the Request to reject the Request by giving
ice to the Preparing Party (the "Notice"). The Request
11 be deemed approved if the Previewing Party fails to
a Notice.
" ~~