First Amendment to Lease Agreement with Yacht Club at Portofino Condominium Association, Inc. .atg - 30805
CO4fI- 20 ( q C RDA)
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment(the"First Amendment") to that certain Lease Agreement,dated as
of the 30th day of November 1998, originally by and among Yacht Club at Portofino, Ltd. (as
predecessor in interest), the City of Miami Beach and the Miami Beach Redevelopment Agency,
is entered into this day of 2020 (the "Effective Date"), by and among Yacht
Club at Portofino Condominium Association, Inc. (hereinafter called the"Yacht Club"), the City
of Miami Beach, a municipal corporation of the State of Florida (the "City"), and the Miami
Beach Redevelopment Agency, a Florida public agency organized and existing pursuant to the
Community Redevelopment Act of 1969 (Chapter 163, Part III, Florida Statutes, as amended)
("Agency"or"RDA")(collectively,the City and Agency are hereinafter referred to as"Tenant").
RECITALS
WHEREAS, the Yacht Club at Portofino Condominium is a condominium located at 90
Alton Rd, Miami Beach, FL 33139 which was developed by Yacht Club at Portofino, Ltd., as
evidenced in the Declaration Condominium, recorded in Official Records Book 18784 at Page
2578 of the Public Records of Miami-Dade County, Florida;
WHEREAS, on or about November 30, 1998, Yacht Club at Portofino, Ltd. and Tenant
entered into a lease(the"Yacht Club Lease") for the leasing of parking spaces, laundry, lavatory
and shower facilities, a trash room and a maintenance room, all located within the"City Unit,"as
set forth in the Yacht Club Lease and intended for use by third-party beneficiary,currently Miami
Beach Marina Associates, Ltd. (the"Marina");
WHEREAS, Yacht Club at Portofino Condominium Association, Inc. was formed
pursuant to the Yacht Club at Portofino Condominium Association Declaration of Condominium,
and Yacht Club at Portofino Condominium Association, Inc. is the successor in interest to Yacht
Club at Portofino, Ltd.;
WHEREAS, the Yacht Club filed a lawsuit for damages and eviction under the Yacht
Club Lease against the City, the RDA and the Marina, in Case Nos. 2017-18335 CA 05, in the
Eleventh Judicial Circuit in and for Miami-Dade County(the"Lawsuit");
WHEREAS, the City and the RDA filed counterclaim in the Lawsuit seeking declaratory
action pursuant to the Declaratory Judgment Act, 86.111, Fla. Stat.;
WHEREAS, this First Amendment to Lease Agreement is being executed as part of a
settlement between the parties in the Lawsuit to settle all claims as provided for in the written
Settlement Agreement executed by the parties simultaneously herewith and to further clarify the
Tenant's and Landlord's obligations pursuant to the Yacht Club Lease.
NOW THEREFORE, in consideration of the leased "City Unit," the mutual covenants
hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Yacht Club,the City, and the RDA agree as follows:
Yacht Club-First Amendment to Lease Agreement-Page I
1. The above recitals are true and correct and are incorporated as part of this First
Amendment.
2. Except as set forth herein, the terms defined in the Yacht Club Lease shall have the same
meaning when used in this First Amendment.
3. In the event of a discrepancy between the terms, obligations, conditions and/or covenants
contained in this First Amendment and the Yacht Club Lease, then the terms, obligations,
conditions and/or covenants contained in this First Amendment shall control.
4. Except as expressly amended hereby in this First Amendment, the Yacht Club Lease shall
continue in full force and effect in accordance with the provisions thereof.
5. PARAGRAPH 2: The first paragraph in Paragraph 2 is DELETED in its entirety and is
REPLACED with the following:
"This Lease shall be for a term (the "Term") of one hundred one (101) years, unless
sooner terminated or extended as provided herein. The Term commenced (the
"Commencement Date") on October 19, 1999."
6. PARAGRAPH 4: The following is DELETED from Paragraph 4(b)(ii):
"In addition to Base Rent, Tenant shall and hereby agrees to pay to Landlord each month
a sum equal to any sales tax, tax on rentals, and any other charges, taxes and/or
impositions now in existence or hereafter imposed based upon the privilege of renting the
space leased hereunder or upon the amount of Rent and any other charges collected
therefor; provided, however, to the extent that Tenant is exempt under applicable law
from the obligation to pay sales tax, Tenant shall provide Landlord with Tenant's tax
exempt identification number or other appropriate evidence of such numil,
whereupon Tenant shall not be obligated to pay any such sales tax. Nothing herein shall,
however, be taken to require Tenant to pay any part of any federal or state taxes on
income imposed upon Landlord."
7. PARAGRAPH 4: The second sentence of the fourth paragraph in 4(b)(ii) is DELETED
in its entirety and is REPLACED with the following:
"The term "lease year" as used in this Lease shall mean a twelve (12) consecutive month
period, the first lease year commencing on the Commencement Date and subsequent
lease years commencing each anniversary thereof."
8. PARAGRAPH 6: In Paragraph 6(b), the third sentence is REPLACED with the
following:
"Tenant, or Tenant's lessee, shall provide 24-hour security for the City Unit and the
Marina throughout the entire term of this Lease and all extensions, at Tenant's sole cost
and expense to the same or similar extent as described in the Parking Facility
Management and Operation Agreement between Tenant and Tenant's lessee."
Yacht Club—First Amendment to Lease Agreement—Page 2
9. PARAGRAPH 7: In the first sentence of Paragraph 7(a), the term"Maintenance Costs"is
DELETED and REPLACED with the term "Additional Rent."
10. PARAGRAPH 9: Section 9(c) of Paragraph 9 is DELETED in its entirety.
11. PARAGRAPH 10: Paragraph 10, titled ADDITIONAL RENT, is DELETED in its
entirety and is REPLACED with the following:
"10.ADDITIONAL RENT:
(a) Subject to adjustment as further provided in paragraph 10(b) below, commencing on
January 1, 2020, and for the remainder of the Term,Tenant shall,during each year,pay to
Landlord, as "Additional Rent," the annual sum of $50,858.00. All Additional Rent
payments shall be due and payable to Landlord, with notice in accordance with Article
26, on a quarterly basis, on January 1,April 1, July 1 and October 1, of each lease year of
the Term. Notwithstanding the Commencement Date or any provision to the contrary in
this Lease, for purposes of Additional Rent, the lease year shall commence on January 1
of each year, and any amounts due at the end of the Term shall be prorated accordingly.
(b) Commencing on January 1, 2020, Additional Rent shall be adjusted annually,
effective as of January 1 of each lease year, based on the percentage of change reflected
in the Consumer Price Index for All Urban Consumers (CPI-U): Miami-Fort. Lauderdale,
FL West. Palm Beach ("CPI"). The annual CPI adjustment shall be determined by
. multiplying the base Additional Rent then being paid, by a fraction, the numerator of
which shall be the CPI for October of the year immediately preceding the year of
adjustment(January 1), and the denominator of which shall be the CPI for the October of
two years immediately preceding(example: October 2020/October 2019). Landlord shall
notify the Tenant of the annual CPI increase in November, with Tenant to commence the
adjusted Additional Rent payments in January of the next year(e.g., notice in November
2019 and increased Additional Rent payment to commence January 2020). Should the
CPI become unavailable, the calculation shall be in accordance with whatever
replacement standard is established by the US Department of Labor to measure the
annual rate of inflation. If no agreement is reached on the reasonable mutually agreeable
substitute, such a dispute shall be submitted to binding arbitration. Additional Rent
payments shall continue to be paid until the Landlord notifies the Tenant (with a copy to
Marina Lessee via e-mail or federal express or other type of delivery service with
evidence of tracking and delivery) of the new adjusted Additional Rent. The new
Additional Rent shall be payable retroactively to the effective date of the new adjustment
date, within forty—five (45) days from receipt of an invoice from the Landlord of the new
annual Additional Rent amount. Notwithstanding the foregoing, in no event shall the
annual Additional Rent amount be less than the lowest annual Additional Rent amount
assessed for the five preceding years (example: year 1 $100,000, year 2 $105,000, year 3
$110,000, year 4 $105,000, year 5 $100,025; year 6 with CPI $95,000; however, year 6
Additional Rent amount shall be$100,000).
Additional Rent due by reason of this paragraph for the final months of this Lease is due
and payable even though it may not be calculated until subsequent to the termination date
Yacht Club-First Amendment to Lease Agreement-Page 3
of this Lease; and shall be prorated according to that portion of said calendar year that
this Lease was actually in effect.
(c) Commencing on January 1, 2020, on a monthly basis, the Tenant shall commence
direct payment for all storm water charges directly related to the City Unit (calculated as
total number of ERUs* Monthly ERU Cost) which shall be directly billed to the Tenant
(with a copy of such bill to the Marina Lessee via e-mail or federal express or other type
of delivery service with evidence of tracking and delivery) and paid for directly by the
Tenant. Until such time as the Tenant commences direct payment of storm water charges,
or in the event that after January I, 2020, the Tenant fails to issue the direct payment of
the storm water charges, and the Landlord incurs these storm water charges, Landlord
shall bill the Tenant, including documentation to support such charges, with a copy of
such bill to Marina Lessee, for such amount, in which event, payment from Tenant shall
be due within thirty (30) days of said invoicing. Landlord shall provide Tenant and
Marina Lessee written notice of late payments. In the event Tenant fails to remit payment
when due and after providing Marina Lessee with forty-five (45) days' prior written
notice that the payment is past due together with an opportunity to make such payment
within such 45-day period, the Landlord shall have the right to commence eviction
proceedings as provided for under the Lease.
(d) Notwithstanding any provision to the contrary contained in this Lease, the
Additional Rent, as defined in this Paragraph 10, shall be the only amounts due and
payable by Tenant to the Landlord pursuant to this Lease.
12. PARAGRAPH 15. The third and fourth sentence in the first paragraph of Paragraph 15 is
AMENDED as follows:
"In the event and to the extent utilities serving solely the City Unit are separately metered
or submetered, the cost of repair and maintenance of all such separately metered or
submetered utility systems solely serving the City Unit shall be the sole responsibility of
Tenant. Any utility bill that is billed directly to the Landlord for utilities servicing the
City Unit, Landlord shall bill the Tenant, with a copy to the Marina Lessee via e-mail or
federal express or other type of delivery service with evidence of tracking and delivery,
directly for the separately metered or submetered utilities on a monthly basis, and shall
include documentation to support such charges. With regard to the water utility servicing
the City Unit, the parties agree that the rate of consumption to be charged to the Tenant
shall be the average consumption rate multiplied by the consumption calculated on the
water submeter. Tenant shall be solely responsible for payment, and shall promptly pay,
all charges for telephone and cable utilities or services with respect to the City'Unit.
Landlord shall provide Tenant and Marina Lessee written notice of late payments, to the
extent any. In the event Tenant fails to remit payment when due and after providing
Marina Lessee with forty-five(45)days'prior written notice together with an opportunity
to make such payment within such 45-day period, the Landlord shall have the right to
discontinue the separately metered or submetered utilities services to the Tenant and the
City Unit."
13. PARAGRAPH 15. The following in the second paragraph of Paragraph 15 is
DELETED:
Yacht Club-First Amendment to Lease Agreement-Page 4
"If not separately metered and paid by Tenant, any consumption of electric current by
Tenant in excess of that considered by Landlord to be usual, normal and customary by all
tenants shall be paid for by Tenant as Additional Rent in an amount to be determined by
Landlord based upon Landlord's estimated cost of such excess electric current
consumption or based upon the actual cost thereof if such consumption is separately
metered."
14. PARAGRAPH 18. The following is DELETED from Paragraph 18(b):
"(b)Tenant shall be responsible to pay as part of Additional Rent, its proportionate share
(equitably allocated) of any fire, windstorm, flood and extended casualty policies if
insurance is maintained for the benefit of the building as a whole."
15. PARAGRAPH 19. The following is DELETED from Paragraph 19(c):
"(c) If, at any time prior to the expiration of the term of this Lease, any ground or
underlying lease under which Landlord shall then be the lessee shall expire or be
terminated for any reason, Tenant agrees at the election and upon demand of any owner
of the Property, the Parking Garage or any structures appurtenant thereto, or if the holder
of mortgages in possession of the same, or of any lessee under any other ground or
underlying lease covering premises which include the City Unit, to attorn, from time to
time, to any such owner, holder or lessee upon the then executory term and conditions of
this Lease, for the remainder of the term of this Lease, provided that such owner, holder
or lessee, as the case may be, shall then be entitled to receive Maintenance Costs (as
defined herein). The foregoing provisions of this Paragraph 19(c) shall inure to the
benefit of any such owner, holder or lessee, shall apply notwithstanding that as a matter
of law, this Lease may terminate upon the expiration or termination of any, such ground
or underlying lease, shall be self-operative upon any rush demand, and no further
instrument shall be required to give effect to said provisions. Tenant, however, upon
demand of any such owner, holder or lessee, agrees to execute from time to time,
instruments in confirmation of the foregoing provisions of this Paragraph 19(c),
satisfactory to any such owner, holder or lessee acknowledging such attornment and
setting forth the terms and conditions of its use and occupancy of the City Unit. Nothing
contained in this Paragraph 19(c) shall be construed to impair any right otherwise
exercisable by any such owner, holder or lessee."
16. PARAGRAPH 19. In Paragraph 19, the term "Maintenance Costs" is DELETED and is
REPLACED with the term"Additional Rent."
17. PARAGRAPH 26: All notices and communications under this Lease shall be delivered•
(a) personally via hand delivery, (b) by Federal Express or a similar internationally
recognized overnight courier service; or(c) by email, provided, a copy of any notice sent
by email will be sent by one of the other permitted methods to all of the persons listed
below. For clarification purposes and notwithstanding any provision to the contrary in the
Lease, any and all notices sent by one party to the other pursuant to and in accordance
with Lease shall also be sent to Marina Lessee.
Yacht Club-First Amendment to Lease Agreement-Page 5
Landlord:
Yacht Club at Portofino Condominium Association, Inc.
Management Office
90 Alton Road
Miami Beach FL 33139
Email: manager@90alton.com
Halpern Rodriguez, LLP
355 Alhambra Circle Suite 1101
Coral Gables, FL 33134
Attn: Marc A. Halpern, Esq.
Email: MHalpern@HRLLPLAW.corn
Tenant:
City of Miami Beach Office of Real Estate
1755 Meridian Avenue, Suite 300
Miami Beach, FL 33139
Attn: Mark Militsis
Email: MarkMilisitsna,miamibeachfl.gov
City of Miami Beach Parking Department
1755 Meridian Avenue, Suite 200
Miami Beach, Florida 33139
Attn: Saul Frances
Email: Saulfrances a,miamibeachfl.gov
Email: rocioalba@miamibeachfl.gov
City of Miami Beach Attorney's Office
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Jason Jacobson
Email: JasonJacobson(cumiamibeachfl.gov
Marina Lessee:
Miami Beach Marina Associates, Ltd.
Miami Beach Marina
300 Alton Rd.
Miami Beach, FL 33139
Attn: Bryan Redmond
Email: Bryan@suntex.com
Yacht Club—First Amendment to Lease Agreement—Page 6
Suntex Marina Investors
17330 Preston Road, Suite 220A
Dallas,TX 75252
Attn: Bryan Redmond
Email: Bryan@suntex.com
With a copy to:
Powell Coleman &Arnold LLP
8080 N. Central Expressway, Suite 1380
Dallas,TX 75206
Attn: Brian DeVoss
Email: BDeVoss@pcallp.com
18. The Parties acknowledge that the "Operational Standards" outlined in the Lease shall be
defined as "comparable to those in other indoor parking garages located in...south shore
of Miami Beach..."
19. Nothing in the Yacht Club Lease, as amended by this First Amendment, modifies,waives,
reduces, relinquishes or releases the City or the Agency from any term, condition,
covenant, agreement or obligation of the City under (i) that certain Parking Facility
Management and Operation Agreement for the Miami Beach Marina between Tenant and
Marina Lessee dated effective as of December 1, 1999, as amended or (ii) that certain
Lease recorded November 9, 1983, in Official Records Book 11963, Page 1143, as
amended by the following documents: (i) First Amendment to Marina Lease Agreement
("First Amendment") dated as of October 23, 1991 among the City, Agency and
Tallahassee Building Corp. ("TBC"); (ii) Second Amendment to Marina Lease Agreement
dated as of August 11, 1994 between the City and TBC (the "Second Amendment"); (iii)
Partial Release of Lease dated December 27, 1995 between the City and TBC, recorded
in Official Records Book 17077, Page 1193; (iv) Third Amendment to Marina Lease
Agreement dated May 27, 1997, among the City, the Agency and Marina Associates,
recorded in Official Records Book 17673, Page 2846 (the "Third Amendment"); (v)
Memorandum of Lease Amendments, filed May 29, 1997, in Official Records Book
17656, Page 4709; (vi) Fourth Amendment to Marina Lease Agreement dated April 15,
1998, among the City - the Agency and Marina Associates, recorded in Official Records
Book 18391, Page 4862(the "Fourth Amendment" together with the Original Lease, First
Amendment, Second Amendment, and Third Amendment sometimes referred to herein as
the "Modified Lease"); and (vi) Partial Release of Marina Lease Agreement recorded in
Official Records Book 18626, Page 4354, all of the Public Records of Miami-Dade
County, Florida.
REMAINDER OF PAGE INTENTIONALLY OMITTED
SIGNATURE PAGE TO FOLLOW
Yacht Club—First Amendment to Lease Agreement—Page 7
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment effective as of
the Effective Date.
THE CITY OF MIAMI F CH THE CITY OF M AMI BEACH
By: By: / 34/Z CaCi l r' a�'',•''`"�`.
1
Mayor Dan Gelber Rafael Granado "" ° '
THE CITY OF MIAMI BEACH City Clerk -- " -
1700 Convention Center Drive, 4th Floor THE CITY OF MIAMI BEACH
Miami Beach, Florida 33139 1700 Convention Center Drive,,4th Floor
Miami Beach, Florida 33139
YACHT CLUB CONDOMINIUM YACHT CLUB CONDOMINIUM
ASSOCIATION, INC. ASSOCIATION, INC.
By: m By:
Name: Name:
Title: Title:
Address: Address:
Witness: Witness:
Witness: Witness:
APPROVED AS TO APPROVED AS TO
FORM & LANGUAGE FORM & LANGUAGE
& FOR EXECUTION & FOR EICECUTION
Za.,L •(_' Z 15 Zorn ja Or ---- 9-- G- Z 67,6
City Attorney Date RDA Counsel 7ii Date
MIAMI BEACH REDEVELOPMENT MIAMI BEACH REDEVELOPMENT
AGENC AGENCY
By: By: / ii 0/Z02,0
Dan Gelber' Rafael Granado
Chairman Secretary
1700 Convention Center Drive, 4th Floor 1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139 Miami Beach, Florida 33139
Yacht Club—First Amendment to Lease Agreement—Page 8