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171-94 RDA RESOLUTION NO. 171-94 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN 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 garage and pedestrian overpass structures. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairman and Secretary are authorized to execute a Second Amendment to Marina Lease Agreement as attached PASSED and ADOPTED THIS day of July as "Exhibit A." ATTEST: ~CTuLJ ~- ?~~ SECRETARY a: jd\mar2amd. res FORM APPROVED REDEVELOPMENT AGENCY GENERAL COUNSEL By ~e--y Date 7 - 2.2 ~~y Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673-7193 Fax: (305) 673-7772 REDEVELOPMENT AGENCY MEMORANDUM NO. TO: CHAIRMAN AND MEMBERS OF THE BOARD OF THE REDEVELOPMENT AGENCY LAURENCE FEINGOLD.o _ rz::? CITY ATTORNEY ~ ~~ ROGER CARL TON Ll ~ /) J ~ CITY MANAGER -U~ FROM: RE: SECOND AMENDMENT TO MARINA LEASE AGREEMENT DATE: mL Y 28,1994 As the Commission is aware, the City has been engaged in discussions with the Marina Lessee (Tallahassee Building Corp), the City of Miami Beach Housing Authority and the Porto fino 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 required 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 storage 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 area 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 S()UTt1 J)()I~ l?edevel()pment Ulstr1ct CIIT Cr:~l? l?edevel()pment Ulstrlct 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 Three 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\lamla.com 2 RESOLUTION NO. 94-21268 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A SECOND AMENDMENT TO THE 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 aU necessary permits for the construction of the Dry Stack Facility for the Miami Beach Marina, the Lessee had 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 garage and pedestrian overpass structures. NOW, THEREFORE, BE IT nUL Y RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are authorized to execute a Second Amendment to Marina Lease Agreement as attached as "Exhibit A." PASSED and ADOPTED THIS day of ATTEST: a, jd\mar2amd. res fORM APPROVEl) , LEGAL 0 EPr. , ~~ By J Cy Date (~1-(~;;i ~cL-,,^A G~ CITY CLERK OFFICE OF THE CITY ATTORNEY ~ if VIUomi 1J<<uA F L o R D A CITY ATTORNEY POBOX 0 MIAMI BEACH, FLORIDA 33119-2032 TELEPHONE (305) 673-7470 TELECOPY (305) 673-7002 LAURENCE FEINGOLD COMMISSION MEMORANDUM 5:R1!i.!/ TO: FROM: MA YOR SEYMOUR GELBER MEMBERS OF THE CITY COMMISSION LAURENCE FEINGOLD ~ _ ~ CITY AITORNEY \/....,.."t# ~~ ROGER CARLTON ~ CITY MANAGER RE: SECOND AMENDMENT TO MARINA LEASE AGREEMENT DATE: JULY 28, 1994 As the Commission is aware, the City has been engaged in discussions with the Marina Lessee (Tallahassee Building Corp), the City of Miami Beach Housing Authority and the Portofmo Development Group in regard to properties in the South Pointe Redevelopment Area. While the discussions with the Housing Authority and Porto fino 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 required 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 storage 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 area and provide surface parking on North ssm in the event we continue to keep title to this land as a result of our negotiations with the Porto fino I-iS AGENDA ITEM R-l- R l-d-I-cr1 DATE ~ ~-',. :',- :', =~',-== := .: - ~ ~ - ::-- =-=:= - '/ ;..'.' ==-'-:.... ;:-::,::.~;.. ::::.~~ Mayor & Commission 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 Three 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,\jl1\..lIlla.com 149 July 18, 1994 SECOND AMENDMENT TO MARINA LEASE AGREEMENT This Second Amendment to Marina Lease Agreement ("Second Amendment") is made as of ~A~ lL, 1994 between the City of Miami Beach, a Florida municipal corporation (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 Miami 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 Drystack 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. PIT:F:\DOCS\CNM\CORP\10937 _1:7/28/94 (2:59pm) -1- July 18, 1994 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 Marina 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 in the First Amendment. PIT:F:\OOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -2- . , ti July 18, 1994 3. Amendments. The First Amendment and the Marina Lease are hereby amended as follows: 3.1 Drvstack Facility. The 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 Parking 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 PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -3- July 18, 1994 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 described 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 PIT:F:IDOCSICNMICORPII0937 _I :7/28/94 (2:59pm) -4- July 18, 1994 terms and conditions of the Marina Lease, as amended, including, but not limited to, provisions 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 in writing to other mutually 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 PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -5- July 18, 1994 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 PIT:F:\DOCS\CNM\CORP\I0937 _ I :7/28/94 (2:59pm) -6- July 18, 1994 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; 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 PIT:F:IDOCS\CNMICORPII0937 _I :7/28/94 (2:59pm) -7- , , ~( July IS, 1994 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 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, PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -S- July 18, 1994 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: 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 PIT:F:IDOCSICNMICORP\I0937 _I :7/28/94 (2:59pm) -9- July 18, 1994 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 Building; (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 minimize 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 Baywalk 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 PIT:F:\DOCS\CNM\CORP\I0937 _1:7/28/94 (2:59pm) -10- . , ~! July 18, 1994 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 final 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 PIT:F:\DOCS\CNM\CORP\ 10937_1 :7/28/94 (2:59pm) -11- 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 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 PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -12- -\ " \. ~\ July 18, 1994 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 City (and not by Lessee), but that the City's operation and maintenance of 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 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 all 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 PIT:F:\DOCS\CNM\CORP\I0937 _1:7/28/94 (2:59pm) -13- July 18, 1994 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 City for the construction of the Area 1 Garage or 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 1 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 be seventy-five (75) feet; the City 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 Parking: and Facilities. In addition to implementing either the Surface Parking Alternative, the Area 1 Parking 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. PIT:F:IDOCSICNMICORPII0937 _I :7/28/94 (2:59pm) -14- -\ \ July 18, 1994 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, whichever. 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). PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -15- \ ~: July 18, 1994 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 (150) 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 (50) 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 PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -16- July 18, 1994 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 $4,166.66. 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 PIT:F:IDOCSICNMICORPII0937 _I :7/28/94 (2:59pm) -17- " -\ v July 18, 1994 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 tennination 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 tennination 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 pennit 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. PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -18- 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 an off-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 defmed 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 PIT :F: \DOCS\CNM\CORP\ 10937_1 :7/28/94 (2 : 59pm) -19- July 18, 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 Sale occurs 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 insurance 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 PIT: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 may be 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 e 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 PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -21- July 18, 1994 4. Effective Date. 4.1 The obligations of either party which are required by the tenns of this Second Amendment to be perfonned 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. 6. Conflict. In the event of any conflict or inconsistency between the tenns 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 PIT:F:\DOCS\CNM\CORP\I0937 _1 :7/28/94 (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 date 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 orporation ~)~<~ By Name' It.. '-..J. ). c,t1'5r L-L1~e,~~ G,~~ Name: ~ 0 ' () " Dated: ~ III / I ,1994 Attest:ILr'AA ?~-~ Richard E. Brown, City Clerk Tallahassee Building Corporation, a Florida corporation ~~~y: ~.~ Name:.bB:NAI/5 ;.c. HtJl.-L-.4AiJ}: Name: f(C\6&/Z-1 c.. B-.!3N5r>/Y Its: s /2. V P. ~ 4'.AtL- Y(h , ( Name: 'C J--..A oV ( A (jl>-C) II c~ Dated: /?t.lo c:- -) ,1994 PIT:F:\DOCS\CNM\CORP\I0937 _I :7/28/94 (2:59pm) -23- ~ORM APr' f';OV[lJ LEGAL D EPT. ~ By j Gy Date ~-c;-t)L July 18, 1994 LIMITED JOINDER OF ESCROW AGENT Eckert Seamans Cherin & Mellott agrees to act as "Escrow Agent" subject to the terms, conditions, prqvisions 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: PIT:F:\DOCS\CNM\CORP\I0937 _1:7/28/94 (2:36pm) -24- r