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Memo #40 11 t-) CITY OF MIAMI BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Sergio Rodriguez City Manager Lawrence A. Lev~ First Assistant City Attorney FROM: SUBJECT: Anchor Shops at South Beach DATE: May 7, 1998 The City entered into a Master Lease Agreement with MB Redevelopment, Inc. ("Master Tenant") with regard to the Anchor Shops, which are in the base of the Convention Center Hotel Garage at 16th Street and Collins Avenue. The Master Tenant has the right to enter into subleases pursuant to Section 8.2 of the Master Lease. Section 8.2 also provides that "to the extent requested by any of the Subtenants, Landlord will agree to grant non disturbance rights to the Subtenant(s) so requesting, such that Landlord will agree that, so long as no default or event which, passing of time or giving of notice would constitute a default, exists under the applicable Sublease, Landlord shall not disturb the applicant applicable Subtenant's possession of its subleased premises or rights under the applicable Sublease by joining such Subtenant as a defendant in a foreclosure or eviction proceeding. " The City has previously approved a sublease between the Master Tenant and DNA, Inc. (d/b/a Xando Coffee Bar) pursuant to a sublease dated October 8, 1997. As per the attached copy of Section 8.2 and my Memorandum to Murray Dubbin, dated April 30, 1998, we have determined that the attached Subordination, Non-Disturbance, and Attornment Agreement does not need to be submitted to the City Commission for approval, and that it is appropriate for you to execute it. Please execute both copies and have them notarized and returned to me for transmittal to the Master Tenant's counsel. LAL\kw -. , F\A TTO\SALL \BE\'\>\NCHRSHP.SR Ch .1"" .... J "' .Ul ;-.. ,;J 8 - . ,I.J;;" I- .,, """,J CITY OF MIAMI BEACH TO: Murray H. Dubbin City Attorney FROM: Lawrence A. Levy First Assistant City Attorney I hereby confirm that I have L prepared] r leviewed] the attached o Ordinance o Resolution o Contract or Agreement yother .yJ-L:-L;Y/_~;d-",,:k--~ ~H~/F Regarding: :4~~ KptJ"Y1.~ ~~ and I hereby confirm to you that the same should be approved as to form, language and execution. -!i5- Lawrence A. Levy First Assistant City Attorney Date: ~)'a FIA TTOILEVLICOMMMEMOIFORMAPPR.SLP CITY OF MIAMI BEACH TO: Murray H. Dubbin City Attorney Lawrence A. Levy ~ First Assistant City Attorney FROM: DATE: April 30, 1998 RE: Retail Space Master Lease between Miami Beach Redevelopment Agency, Landlord, and MB Redevelopment, Inc., Master Tenant, dated as of September 20, 1996. We have received a Subordination, Nondisturbance and Attornment Agreement from the Master Tenant's counsel with respect to a lease that has been entered into with DNA, Inc. d/b/a Xando Coffee Bar, which is the first subtenant to sign a lease with regard to the Anchor Shops, which will be located in the base of the Convention Center Hotel Garage at 16th Street and Collins Avenue. The lease did not go the RDA for approval because the RDA is not a party to it. Attached hereto is a copy of Section 8.2 of the Master Lease on which I have highlighted the language that requires us to deliver Subordination, Nondisturbance and Attornment Agreement. In view of the fact that we have already agreed to grant non disturbance rights, I do not believe it is necessary to have the RDA approve each agreement. Please let me know if you concur. 1i~~~ ~~ (lp~~~ ]f-Y- _~ ~ !tv ~ fi,~. ~ r-- ~ P~I~' ~~~. 7f1^~ ~ -0/' cfi<1 ~ o/~~ - !Atf) F IA nn.U\.L,HOTU.ltr.4ASUF.I....IlD , :.': isions of the Garage Easement Agreement. However, to the extent that Landlord repairs or rebuilds pro~tail space following a taking reg~dless of whether Landlord. is ob.ligated to do so pursuant to the }bC ge Easement Agreement, then this Master Luse shall COntlIIUe m full force and effect. The '::eases will provide that any repairs to or rebuilding of the condemned portions of the Retail Space . Will be performed only to the extent Landlord is required to repair or rebuild the Retail Space pursuant :' the Garage Easement Agreement. However, to the extent that any of the Subleases approved by ':~ord require repair or reconstrUCtion following a taking, Landlord, at its expense, shall cause repair :<< reconstrUCtion to be made in accordance with the applicable provisions of the Subleases, and this - tdJstCr Lease shall continue in full force and effect. ARTICLE 8. ASSIGNMENT, TRANSFER AND SUBLt; IllNG Section 8.1 Assi~ent. ~ Master Tenant shall not assign this Master Luse except to a successor tenant under the Ground '.Lease or to a successor owner of the Hotel, and Master Tenant shall be required to assign this Master 'Lease to a successor tenant under the Ground Lease or to a successor owner of the Hotel. Section 8.2 Subleases. "i-' " Landlord shall have the right to approve (in its reasonable judgment) the terms and conditions ;[i,of any proposed Sublease sought to be entered into between Master Tenant and a Subtenant, }, lDcluding, without limitation, the Person(s) that is (are) proposed as the Subtcnant(s) thereunder. .,Each Sublease sought to be entered into by Master Tenant shall be submitted to Landlord. Landlord ',. I have ten (10) Business Days within which to approve or disapprove the applicable Sublease (and, If disapproved, stating Landlord's reasons for disapproval with specificity). If Landlord fails to ,respond within such ten (10) Business Day period, then Master Tenant will notify Landlord of such "failure, and if Landlord fails to respond within five (5) calendar days thereafter, then the applicable Sublease shall automatically and without further notice be deemed to be approved. To the extent '.requested by any of the Subtenants, Landlord will agree to grant noodisturbancc rights to the 'Subtenant(s) so requesting, such that Landlord will agree that, so long as no default or event which, ".,with the passing of time or giving of notice would constimte a default, exists under the applicable , blease, Landlord shall not disturb the applicable Subtenant's possession of its subleased premises or 'riShts under the applicable Sublease by joining such Subtenant as a defendant in a foreclosure or ,,~tion proceeding. 7 SUBORDINA TION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT (the "Agreement"), made the _ day of , 1991, among MIAMI BEACH REDEVELOPMENT AGENCY (the "Landlord"), having an address of 1700 Convention Center Drive, Miami Beach, Florida 33139, MB REDEVELOPMENT, INC. (the "Master Tenant"), having an address of 667 Madison Avenue, New York, New York 10021, and DNA, INC., a Connecticut corporation (the "Subtenant"), having an address of 700 Canal Street, 4th Floor, Stamford, Connecticut 06902. WIT N E SSE T H: ---------- WHEREAS, Landlord and Master Tenant entered into that certain Retail Space Master Lease dated as of September 20, 1996 (the "Master Lease"), pursuant to which the Landlord leased to Master Tenant, and Master Tenant leased from Landlord, the Retail Space, as defined in the Master Lease, which Retail Space is located on the Land, as defined in the Master Lease (and a legal description of which is attached hereto and made a part hereof as Exhibit "A"); and WHEREAS, Master Tenant and Subtenant have entered into that certain Retail Sublease dated October 8, 1997, as may be amended or modified from time to time (the "Sublease"), whereby a portion of the Retail Space has been sublet to Subtenant for use as a coffee bar, all as more particularly described in the Sublease; and WHEREAS, Landlord, Master Tenant, and Subtenant desire to enter into this Agreement in order to confirm subordination of the Sublease to the Master Lease, and to provide nondisturbance rights and attornment requirements on Subtenant, on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants contained herein and in consideration of Ten and No/100 ($10.00) Dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein as if set forth in full. 2. Subordination. Subtenant hereby covenants and agrees that the Sublease and the leasehold estate granted thereby and any and all rights, options, and estates therein contained or created thereunder are and shall continue to be subject and subordinate in all respects whatsoever to the Master Lease for the full term set forth therein and to all renewals, modifications, replacements, and extensions of the Master Lease. This clause shall be MI973160.061 self-operative and no further instrument of subordination shall be necessary to effectuate such subordination. However, in confirmation of such subordination, Subtenant shall execute promptly any certificate or further agreement that the Master Tenant or Landlord may reasonably request. 3. Nondisturbance. Landlord, as the lessor under the Master Lease, or anyone claiming by or through any holder of the Master Lease or any purchaser of Landlord's estate, hereby covenants and agrees that the leasehold estate granted to Subtenant under the Sublease and the rights of Subtenant and its successors in interest and assigns to quiet and peaceful possession under the Sublease will not be terminated or disturbed by any action taken by Landlord to terminate the Master Lease or to enforce the rights and remedies of the holder thereof so long as Subtenant or its successors in interest or assigns shall not be in default beyond applicable cure periods under the Sublease and shall pay the rents and additional rents under the Sublease, without offsets or defenses thereto, except as and to the extent specifically set forth in the Sublease, and shall fully perform and comply with all the terms, covenants, conditions, and provisions of Sublease on the part of the Subtenant thereunder to be performed or complied with (it being understood that no rental shall hereafter be paid earlier than thirty (3D) days prior to the due date set forth in the Sublease). 4. Attornment. If any holder of the Master Lease or anyone claiming by or through any such holder or any purchaser of Landlord's estate shall enter into and lawfully become possessed of the leased premises covered by the Sublease or shall otherwise succeed to the rights of the landlord under the Sublease, either through termination of the Master Lease or the acquisition of the estate thereby created, then Subtenant agrees to attorn to such successor landlord and recognize such successor landlord as its landlord under the Sublease. This clause shall be self-operative and no further instrument of attornment shall be necessary to effectuate such attornment. However, in confirmation of such attornment, Subtenant shall execute promptly any certificate or further agreement that the Master Tenant or Landlord may reasonably request. 5. Approval. Landlord confirms that it has consented to the Sublease and the transactions contemplated thereby pursuant to the Master Lease. 6. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors in interest and assigns. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. [signatures begin on next page] MI973160.061 -2- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. MIAMI BEACH REDEVELOPMENT AGENCY ATTEST: BY:~ f aJ-~ Robert Parcher Secretary ORM & LANGUAGE f,.,Gd.v7....V~ & FOR EXECUTION ~r;c&470 STATE OF FLORIDA ) )ss: ) ~ -YJ/M' edevetopment A9~ncy G~.:...,.:":f ':."')t.;,....;...; ~I- COUNTY OF 'bADE The foregoing instrument was acknowledged lJlore me ~s 13 day of MAY ,1991, by SE.RGIO ROCRIGlJ~'2 , as ~(~ an~archer, as Secretary, of the MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, on behalf of such public body. They are personally known to me or produced valid Florida driver's licenses as identification. ~/ c. S~ No ry Public, State of Flo da Print Name: t I~ C. DJ)((")N My commission expires: , ,~ ~,. ~,', .-;,- \\#:.~~,\'..""':'.\"I(';',\','';'' \\\{.r\.\\\\\\,\(,_.\\\c....\\\:.>' " ~ Li::... C. [.i::::;n ~; .' .:~, " ,- -',-. r ',' ,t,,'._",' :;",,' '.: ,.'. ,,'. -,,~~, Cc~'.~:->...~;;,jJ :::;.~>.i'.;:.:,./..i'l~,.'}} >: APPROVED AS TO FORM & LANGUAGE & fOR EXeCUnON ;.S 'J; '.-: J,'~:~ >:,r.":~'..;:'-, :~~.;; :~"7~':",S~~.~;'~,~ ?C~~~~ ;:~', ~.~ (\..:.., of. ,...", (( ~,.. i<(.. (( ((, (( ((( (<.~ (<,.:..' (,.." It.;..... <.. (.. ~ 'l. L" ~~cy ~ General Couns~1 I " 'tr': ,'0'; (. " "::L-;;n , J' ,'IJf..' / A IJJt,. ~;} 0':, JVL- ( '~ // '(Q .'tJ: ~ . ,._~l~l/l~:'"'~,',..- .0.:.. . . ......- -, - . 13 MI973160.061 -3- MB REDEVELOPMENT. INC. ATTEST: By: Secretary STATE OF tJ(3V YoML ) )ss: COUNTY OF NI2':vV Y orUL ) M The foregoing instrument was acknowledged before me this ;J.. 3 day of JAtJv~tUJ . 1991, by .Jol+0 6-. MAL-j NO . as 'JIve f~i'!)e'/IJT . ~ . as-Seeretary, of MB REDEVELOPMENT. INC.. a Florida corporation, on behalf of such corporation. They are personally known to me or produced as identification. ~t.~ Nota blic, State of Print Name: My commission expires: ........ ",-IC.UITCHEU- tr:JfAfttfllaA.-d NIW YOlk No. 15010117 Q.aIlIIed In orange COIIIlr 1 q ~_' ..... ExpIreS Apr1112, 11....:.0. ~ 'L MI973160.06l -4- DNA, INC. ATTEST: Secretary By: ~~ 1!r~ Name: OVP'1 L,.J,ml-<r- Title: (>/.-',rMw-N By: STATE OFe * COUNTY OF-CClt( {\ c\.cL ) )ss: ) ~~~<L. . ,~e foregoing instrument was ..!cfnowledged before me this d1. ~ day of \}'Cc ~"'~, , 1991, by ~0L\ '-~, -c..\~ , as , and '\ , as Secretary, of DNA, INC., a Connecticut corporation, on behalf ?fsu~h corporation. T~ey ~re p~rsonally known to me or produced LJ. '-l V( \ v-e~ ~" l (' r,,,.-~ .~ . as IdentificatIon. \ - (I Co,. J,,-,-. y,~ Notary Public, State of . Print Name: ~ ~~_ \~. r~(~b ~~( (I My commission expires: My Commission Exp. July 31. 1999 MI973160.061 -5- t.^t1.ll:l.lJ. " LEGAL DESCRIPTION: Lds 8.9./0./1,/2 and /3.8IocK 5l.FIsters FIrst SubdIvIsIon at Alton BeaCh.occordlng to tte Plat fterd.os rtJCOf'ded In Plat 8cok 2.."098 77 at fre PublIc Records at Dade County.Fiorldo. togdter wfth 0/1 at 16th Str~ (,6WetlJtJ 'e- J.les.s and 8XcetX fm f oIlONlng descrlbtJd parcel: . BEGINNING at fm SautNest corntJr at 81a;t 54 ci saId FIster's FIrst SubdivIsIon at Alton 880cff Plat: tttJroJ North 88' 0' 5S East along ,re S<XJfh 11M (f $(]Id Block 54.0 dlstarr::tJ d 443.D8 fw.to tm S<XJfteost COf'ntJf' at sold BI<<k 54: t~ South or 351 (H West. a dlsta~ at 96.2:6 ffd.to a poIrt d C1JSp with 0 tarvxt C1Jrve c:otrXNtJ to fttJ SaJthNest:tterrxJ along tm arc at sold curve to tm I~t.frNlfYJ a radIus ci 25.00 f. and 0 OIJItralanale (f tXl00' CO. an arc dlstar at 392T f..to a poIrt ci tangency:tfr1nce North 8Z 2~ 52 West. a dIstance (f 2475 ffd:ttrn::e South 88CXY 5JW Wast alor;; a 11m 8lXJ f_ North (f and fX/ralltJI wffh.as IIIfJOSUrtJd at rlgtt angles to tm North I1re af Block 51 (f saId plat.a dlstanctl (f J82J8 f. to 0 ""'IF on fM Easterly RI9tt -of '*'0)' lIre at Wa.stington /1wI'rJtJ: t1'r!Jrr;e North or 59' If WtJSf along $(Jld EasttJily Rlgtt-of- W Cot' If ne. ad' stanotJ at 621XJ f _ to tm SauthNesf CtJrntJr at $(Jld Block 54 and fir! PoIrt at begl nnll Sold lands lyIng and beIng In tre CIty of Allam! 8tJach and corIolnlng 65.9/0 square ft!Jet 05131 kresJ more or less.