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RESOLUTION 90-20031 RESOLUTION NO. 90-20031 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A FIRST AMENDMENT TO THE LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND DINER GROUP, INC. , FOR THE DEVELOPMENT, CONSTRUCTION AND OPERATION OF A RESTAURANT IN THE FIRST FLOOR (NORTH WING) OF HISTORIC CITY HALL, PROVIDING FOR AN ALTERNATE PERFORMANCE AND LABOR AND MATERIALS PAYMENT SECURITY ARRANGEMENT WHEREAS, pursuant to City Commission Resolution No. 89-19730, the City of Miami Beach and Diner Group, Inc. ("Lessee") entered into a Lease Agreement dated September 20, 1989 ("Lease Agreement") for the development, construction and operation of a restaurant on the First Floor (North Wing) of Historic Hall; and WHEREAS, the Lessee has proposed an alternative performance and labor and materials payment security arrangement to that provided in the Lease Agreement and has incorporated that alternative into the attached First Amendment to the Lease Agreement; and WHEREAS, the Lessor has accepted the alternative performance security arrangement proposed by the Lessee. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are hereby authorized to execute the First Amendment to the Lease Agreement with Diner Group, Inc. , providing for an alternative performance and labor and materials payment security arrangement. PASSED and ADOPTED this 11th day of July 1990. ATTEST: d7I ///// //// -)J -id_IL— k - CITY CLERK FORM APPROVED , MAYOR LEGAL DEPT, PNB:HCM: ses 7/'679c nate eeeei /!4 #t I e4d \PM a FLORIDA 3 3 1 3 9 14?'';4t s,* INCORP!(ORATED)*4 VA CA TIONL A NIS U. S. A. W, OFFICE OF THE CITY MANAGER CITY HALL ROB W.PARKINS 1700 CONVENTION CENTER DRIVE CITY MANAGER TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO. • DATE: ally 11, 1990 TO: Mayor Alex Daoud and Members of the Cit CRmmission {t(/` '21" c-;7- FROM• Rob W. Parkins • City Manager L SUBJECT: FIRST AMENDMENT TO LEASE AGREEMENT WITH DINER GROUP, INC. FOR THE DEVELOPMENT, CONSTRUCTION AND OPERATION OF A RESTAURANT IN THE FIRST FLOOR (NORTH WING) OF HISTORIC CITY HALL, PROVIDING FOR AN ALTERNATE PERFORMANCE AND LABOR AND MATERIALS PAYMENT SECURITY ARRANGEMENT BACKGROUND INFORMATION: Pursuant to City Commission Resolution No. 89-19730, approved September 20, 1989 , the City entered into a Lease Agreement with Diner Group, Inc. for the development, construction and operation of a restaurant on the First Floor (North Wing) of Historic City Hall, located at 1130 Washington Avenue. In accordance with the lease agreement, Diner Group, Inc. submitted plans and received approval from the Design Review Board for the proposed improvements. The construction contract was submitted to the City and approved, pending approval of performance security and insurance coverage. Diner Group, Inc. has requested that an alternative performance security arrangement in the form of an Escrow Agreement be permitted instead of the Performance and Labor and Materials Payments Bonds as specified in the Lease Agreement (See attached correspondence dated July 3 , 1990) . Under the proposed Escrow Agreement, a law, firm would hold funds in escrow sufficient to pay the total construction contract amount. Disbursements would be made to the Contractor (Camp Development Corp) upon the written authorization of the Contractor, Diner and a review agent (Les Beilinson, A. I.A. ) . ADMINISTRATION RECOMMENDATION: The City Administration recommends that the City Commission approve a Resolution authorizing the Mayor and City Clerk to execute the proposed First Amendment to Lease Agreement between the City of Miami Beach and Diner Group, Inc. , for development, construction and operation of a restaurant in the first floor (North Wing) of Historic City Hall , providing for an alternate performance and labor and materials payment security arrangement. RWP:WHH:HCM:hm AGENDA - • ITEM DATE , ( FIRST AMENDMENT TO LEASE AGREEMENT THIS FIRST AMENDMENT TO LEASE AGREEMENT, made and entered into this 12th day of September , 1990, by and between the CITY OF MIAMI BEACH, a municipal corporation, Lessor (hereinafter referred to as "City") and DINER GROUP, INC. , a Delaware Corporation (hereinafter referred to as "Lessee") : WITNESSETH WHEREAS, pursuant to City Commission Resolution No. 89-19730, the City and Lessee entered into an Agreement (hereinafter referred to as "Lease Agreement") dated September 20, 1989 for the development, construction and operation of a restaurant on the first floor (north wing) of Historic City Hall ; and WHEREAS, the parties wish to amend the Lease Agreement to provide for an escrow agreement as an alternative performance security arrangement to that provided in the Lease Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows: 1. Paragraph 7 . Performance and Labor and Material Payment Bonds: is hereby amended to add the following sentence: "As an alternative to the foregoing Performance and Labor and Material Payment Bonds, the Lessee may substitute the attached Escrow Agreement dated September 11 , 1990 by and between DINER GROUP, INC. , CAMP DEVELOPMENT CORP. AND THERREL BAISDEN & MEYER WEISS, P.A. , which is incorporated herein by reference and made a part hereof for all purposes. " 2 . The Parties hereby ratify and confirm all other terms and conditions of the Lease Agreement which remain unchanged. IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by the duly authorized officers and the respective corporate seals to be affixed this 12th day of September , 1990. ATTEST: CITY OF MIAMI BEACH cn / es if° -4‘ UJ C) CITY CLERK - Y07; W LL m /( QQ0\ :E LUA WITNES\,/, / ? DINER GROUP, INC. OC CD l.t_ m 0 me j) ‘7-7 /I J / CO, B , PR .SIDENT HCM: ses ESCROW AGREEMENT This Escrow Agreement made this day of September , 1990, between DINER GROUP, INC. (DINER); CAMP DEVELOPMENT CORP. (CONTRACTOR); and THERREL BAISDEN & MEYER WEISS (Escrow Agent). WHEREAS, DINER has entered into a lease agreement with the City of Miami Beach (City) for the north wing of the first floor of Historic City Hall; and WHEREAS, pursuant to said lease agreement DINER has agreed to construct a full service restaurant on the premises and has further agreed that prior to commencement of construction, DINER will deposit in escrow an amount covering 110% of the costs of constructing the improvements; and WHEREAS, DINER has entered into an agreement with CONTRACTOR to construct said improvements for the sum of$175,000.00, which contract has been approved by CITY; and WHEREAS, the law firm of THERREL BAISDEN & MEYER WEISS has agreed to serve as Escrow Agent in accordance with the terms hereof. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and value consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Escrow Agent hereby acknowledges receipt of the sum of $175,000.00 and a letter of credit in favor of Escrow Agent in the amount of $17,500 to be held pursuant to the terms hereof. Any deposits made hereunder by check shall be subject to collection. Escrow Agent shall deposit the funds received in a separate interest-bearing escrow account. All interest accruing therein shall inure to the benefit of DINER, and may be disbursed to DINER from time to time notwithstanding any other provisions of this agreement. . , 2. The funds held by Escrow Agent shall be disbursed from time to time in accordance with written instructions from DINER, CONTRACTOR-and'LES BEILINSON A.I.A. specifying the amount and manner of disbursement and signed in the manner and by the persons authorized below. TIIERREL BAISDEN 8C MEYER WEISS 3. The parties hereby authorize the following persons to sign the aforesaid written instructions and the signature of each such person also appears hereon: DINER: Jeffrey F. Combs (k/t-e---; CONTRACTOR: Kay M. Statz mow BEILINSON: Le : -Hinson, A.LA. • / • 4. The Escrow Agent shall not disburse any funds unless and until it is presented with joint written notarized instructions signed by the foregoing•persons. The Escrow Agent shall be completely protected in relying on any signature it reasonably believes to be valid, and no written instructions other than the ones herein above referred to shall be required in order to cause disbursements to be made. 5. The letter of credit shall provide that Escrow Agent may draw upon the credit upon the joint written instructions of Diner and Contractor. Escrow Agent shall disburse any funds received under the letter of credit in the same manner as set forth above. 6. In the event of doubt as to Escrow Agent's duties or liabilities under the provisions of this Agreement, the Escrow Agent, may in its sole discretion, continue to hold the subject matter of the escrow until the parties mutually agree to the disbursement thereof, or until a judgment of a court of competent jurisdiction shall determine the rights of theP arties thereto; or Escrow Agent may deposit same with the Clerk of the Circuit having jurisdiction of the dispute, and upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully terminate, except to the extent of accounting for any items theretofore delivered out of escrow. 7. In the event of any suit between the parties wherein the Escrow Agent is made apartyby virtue of actingas Escrow Agent hereunder, or in the event of anysuit wherein � Escrow Agent interpleads the subject matter of this escrow, the Escrow Agent shall be entitled to recover reasonable attorney's fees and costs incurred. 2 THERREL BAISDEN & MEYER WEISS 8. All parties agree that the Escrow Agent shall not be liable to any party or P erson whomsoever for misdeliveryof the funds subject to this escrow, unless such misdeliveryshall be due to willful breach of this Agreement or gross negligence on the �' party of the Agent. Nor shall Escrow Agent be liable for any loss or damage resulting from the failure, insolvency or suspension of the financial institution in which the subject of the escrow is held. 9. DINER and CONTRACTOR, jointly and severally, for themselves and their 1 successors and assigns, indemnify and hold Escrow Agent harmless from liability or cost including court costs and attorneys fees, incurred by reason of Escrow Agent having accepted this Escrow. Escrow Agent shall have a first and prior lien on the Escrow deposits to secure the performance of this Agreement. 10. All fees and expenses of Escrow Agent shall be paid by DINER. 11. Except as otherwise provided herein, this Escrow Agreement and Escrow Agent's liability hereunder shall terminate upon disbursement of all funds held by Escrow Agent. 12. This Agreement may not be amended or modified except, in writing, signed by the parties hereto and with the written consent of City. IN WITNESS WHEREOF, the undersigned have executed this Escrow Agreement the day and year first above written. In Witness Whereof: •c. , z-/ �-- Z;_.- THER L BAISDE & MEYER WEISS 4i ( 2.4.__ By 44 , #-V1 ilk .r. n ' • r 4g -/:4- ' - , DINER GROUP, INC. By ee'64 _________ 7 // , - f , •,'' • --� CAMP DEVELOPME " • • P By Air et r i 1,93 THERREL BAISDEN & MEYER WEISS OF IGINAL RESOLJTION NO. 90-20031 Authorizing the Mayor and City Clerk to executed a First Amendment to the lease agreement between the City of Miami Beach and Diner Group, Inc. , for the development construction and operation of a restaurant inthe first floor (north wing) of Historic City Hall, providing for an alternate performance and labor and materials pay- ment security arrangement.