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HomeMy WebLinkAbout05 Release and Consent . . ". .' . . " ".t. . @ '. This Instrument Prepared By: Thomas V. Eagan,'P.A. Steel Hector & Davis LLP 4000 First Union Financial Center Miami, Florida 33131-2398 SA 4.2.1.1 . RELEASE AND CONSENT This Release and Consent (the "Agreement") is made and entered~nto as of the $ 1999, of , ~ by and among the City of Miami Beach, Florida, a Florida municipal corporation (th "City"); 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 (the "Redevelopment Agency"); and West Side Partners, Ltd., a Florida limited partnership ("West Side"). WIT N E S S R T H: WHEREAS, in order to resolve the controversies and the litigation involving the Core Parcel (as more particularly described in Exhibit A attached hereto and made a part hereof) and property contiguous to the Core Parcel, the City and the Redevelopment Agency entered into a stipulation and order ("Order") in South Shore DevelQpers Inc et at v City of Miami Beach et aI, Case No. 82-24526 (19) (Fla. 11th Cir. Ct. 1982) which was approved by the 11th Judicial Circuit in and for Miami-Dade County, Florida (the "Court") on July 8, 1985, and the Court retained jurisdiction over the parties and subject matter in order to assure compliance with the terms of the Order. Pursuant to the Order, the City and Redevelopment Agency ratified certain judgments and entered into a series of agreements with South Shore Developers, Inc. ("SSDI") pertaining to the purchase, ownership and development rights ofSSDI South and SSDI North, and which, in part, dealt with certain duties and obligations relating to the Marina and Core Parcel, pursuant to the following documents: .....~.r , . .' .,' " A Contract of Sale from the City and Redevelopment Agency, as sellers thereunder, in favor of ssm as purchaser thereunder, dated July 24, 1985, and recorded July 31, 1985, in O.R. Book 12590, at Page 2795, as amended by Amendment of Contract of Sale dated April 17, 1986, and recorded April 30, 1986, in O.R. 800k 12873, at Page 2602, all in the Public Records of Miami-Dade County, Elorida, pursuant to which the City and Redevelopment Agency agreed to sell to ssm two (2) tracts ofland commonly referred to as "SSDI South" and "SSDI North" (the "Contract of Sale"); 2. A Final Judgment for monetary damages with interest thereon dated September 18, 1. 1984, as recorded in O.R. Book 12276, at Page 2258, and a certified copy of which was recorded in O.R. Book 16289, at Page 1495, together with a judgment for attorneys' fees dated September 23, 1986, as recorded in OR Book 13033, at Page 1235, and a certified copy of which was recorded in OR Book 16293, at Page 1045, all in the Public Records of Miami-Dade County, Florida (collectively, the " Judgments"); 3. A Mortgage from the Redevelopment Agency to ssm encumbering both ssm South and ssm North as security for the payment of the Final Judgment referred to in subparagraph 2 above and to ensure the performance by the City of its obligations under the Order and other documents, which Mortgage was dated July 24, 1985, and recorded on July 31,1985, in OR Book 12590, at Page 2786, of the Public Records ofMiarni-Dade County, Florida (the "Mortgage"); 4. A Development Agreement dated as of April 17, 1986, and recorded in O.R. Book 12873, at Page 2612, of the Public Records ofMiarni-Dade County, Florida, '\ltTO\UVL~~Dl.r 2 by and among the City, the Redevelopment Agency, and ssm and established in order to define the rights and obligations of the parties relating to the development of ssm North and ssm South (the" 1986 Development Agreement"); and 5. A Parking Agreement dated as of April 17, 1986, and recorded in O.R. Book 12873, at Page 2731, of the Public Records of Miami-Dade County, Florida, by and among the City, the Redevelopment Agency, and ssm, as further amended by letter agreement dated April 17, 1986, pursuant to which the parties established certain rights and obligations with respect to the construction, cost, purchase, maintenance and operation of certain parking spaces to be located on ssm North and ssm South (the "1986 Parking Agreement"). The Order and other documents described in sub-paragraphs (1) through (5) above are hereinafter sometimes collectively referred to in this Agreement as the "1986 SSDI Documents"; and WHEREAS, all of the rights of ssm under the 1986 ssm Documents have been sold and assigned to West Side as evidenced by that certain Assignment and Assumption of Mortgage and Other Documents dated April 6, 1994, and recorded April 7, 1994, in O.R. Book 16313, Page 1077, of the Public Records of Miami-Dade County, Florida (the "Assignment and Assumption of Mortgage and Other Documents"); and WHEREAS, the City, as landlord, and Carner-Mason Associates, Ltd., as Lessee, entered into a Lease Agreement dated June 24, 1983, as amended by a First Amendment dated October 23, 1991 (the "First Amendment to the Marina Lease"), a Second Amendment dated August II, 1994 (the "Second Amendment to the Marina Lease"), a Third Amendment dated May 27, 1997 (the "Third Amendment to the Marina Lease"), and a Fourth Amendment dated April IS, 1998 (the '''''nwavLllIOt.1l:lnr' --.'-(11.1' 3 "Fourth Amendment to the Marina Lease"); said Lease Agreement, as amended, hereinafter sometimes collectively referred to as the "Marina Lease"; and WHEREAS, all of the rights of the lessee under the Marina Lease are currently held by Miami Beach Marina Associates, Ltd., a Florida limited partnership ("MBMN'); and WHEREAS, the Core Parcel is still part of the real property leased pursuant to the Marina Lease; and WHEREAS, West Side, East Coastline Development, Ltd., a Florida limited partnership ("East Coastline"), 404 Investments, Ltd., a Florida limited partnership ("404 Investments"), Azure Coast Development, Ltd., a Florida limited partnership ("Azure"), Beachwalk Development Corporation, a Florida corporation ("Beachwalk"), Portofino Real Estate Fund, Ltd., a Florida limited partnership ("Portofino Real Estate Fund"), St. Tropez Real Estate Fund, Ltd., a Florida limited partnership ("St. Tropez"), and Sun & Fun, Inc., a Florida corporation ("Sun & Fun"), which are owned and/or controlled directly or indirectly by the same principal (hereinafter sometimes coll~tively referred to as the "Portofino Entities" or individually, as a "Portofino Entity"), the City and the Redevelopment Agency entered into that certain agreement dated November 7, 1995, which was recorded in Official Records Book 16987, at Page 1197 of the Public Records of Miami-Dade County, Florida (the" 1995 Development Agreement"); and WHEREAS, the 1995 Development Agreement provided, among other things, for closing on various parcels in three stages: (i) the first closing resulted in the conveyance of the northern portion of SSDI South to the Yacht Club at Portofino, Ltd., a Florida limited partnership (the "YCAP") and the southern portion ofSSDI South to West Side, (ii) the second closing resulted in the conveyance to the City of certain other properties described in the 1995 Development '\A~N.f 4 Agreement, as well as the conveyance of the Goodman Terrace Parcel to a Portofino Entity, as described in the 1995 Development Agreement; and (iii) the third and final closing (the "Final Closing") was to involve the release of certain rights and obligations with respect to ssm North and the conveyance of additional property to the Porto fino Entities, all predicated upon the timely obtaining of certain final approvals, as described in the 1995 Development Agreement (the" 1995 Final Approvals"); and WHEREAS, the Final Closing referenced in the preceding paragraph did not occur, the 1995 Final Approvals were not timely obtained, and on June 20, 1997, West Side terminated the 1995 Development Agreement, except for those provisions of the 1995 Development Agreement which said agreement expressly provides are to survive; and WHEREAS, Paragraph 8.1 of the 1995 Development Agreement provided for West Side to consent to the elimination of the requirements for construction of a drystack facility on the Core Parcel, as set forth in the Second Amendment to the Marina Lease, upon the occurrence of the Final Closing; and WHEREAS, the City and the Redevelopment Agency on the one hand, and the Portofino Entities on the other hand, disagreed over their respective responsibilities, obligations and rights arising out of the surviving provisions of the 1995 Development Agreement; and WHEREAS, on November 5, 1997, West Side filed with the Court an Emergency Motion to Enforce Court-Approved November 7, 1995 Development Agreement and for Contempt against the City and Redevelopment Agency in the 11 th Judicial Circuit in and for Miami-Dade County, Florida, Case No. 82-24526-CA-30, in the case styled West Side Partners Ltd a Florida limited partnership Plaintiff vs City of Miami Beach Florida a Florida municipal coworation and the '\,\'nllIlAYl.._. - - ..-....1' 5 Miami Beach Redevelopment Aiency a Florida municipal aiency orianized and existini pursuant to the Community Redevelopment Act of 1969 Defendants, seeking to enforce certain of the surviving provisions of the 1995 Development Agreement and to request other relief set forth in said motion (the "1997 Litigation"); and WHEREAS, the City, the Redevelopment Agency and West Side have agreed to settle the 1997 Litigation, and in connection with said settlement, said parties have entered into a Settlement Agreement (the "Settlement Agreement"), and pursuant to the Settlement Agreement, West Side has agreed to execute and deliver this Agreement; and WHEREAS, West Side continues to own and hold all of the rights of ssm under the 1986 SSDr Documents, as sold and assigned to West Side pursuant to the Assignment and Assumption of Mortgage and Other Documents, West Side has not assigned or pledged its interests under the 1986 ssm Documents to any party, and accordingly, West Side has full authority and capacity to enter into, execute and deliver this Agreement without the need to secure any consent, release or joinder of any other party. NOW, THEREFORE, in consideration of the settlement of the 1997 Litigation and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, West Side agrees as follows: 1, Recitations. The foregoing recitations are true and correct and are incorporated herein by this reference. 2. Release. West Side, for itself, its successors and assigns, hereby releases and tenninates any right offirst refusal in connection with drystack storage slips, as set forth in the 1986 ssm documents and the exhibits attached thereto, the 1995 Development Agreement and the 6 exhibits attached thereto, the Marina Slip Agreement entered into as of the 10th day of January, 1996 by and between Tallahassee Building Corporation, a Florida corporation and the City, and any other document which grants or may grant such rights regarding dry storage slips, and further, West Side hereby releases and terminates any right it may have to require the construction of a drystack facility on the Core Parcel or any other parcel demised pursuant to the Marina Lease; provided, however, that without any obligation by any party at any time to actually build a drystack facility on the Core Parcel, if a drystack facility is built on the Core Parcel or any other parcel that is directly or indirectly subject to the Marina Lease by MBMA (its successors and assigns) or any subsequent lessee of the Marina (collectively, the "Marina Lessee") or the City, the Redevelopment Agency or their successors and assigns, then the Marina Lessee, the City or the Redevelopment Agency, as appropriate, agree to grant to the City (for the sole benefit of West Side), or directly to West Side, a right offirst refusal for the lease by any Qualified Occupant (as defined in that certain Marina Slip Agreement entered into by and between the Tallahassee Building Corporation, a Florida corporation, and the City as of the 10th day ofJanuary, 1996 and recorded in Official Records Book 17077, Page 1260 of the Public Records of Miami-Dade County, Florida) of50% less one of the dry slips which may ever be constructed on the Core Parcel or any other parcel that is directly or indirectly subject to the Marina Lease; provided, further, that the number of such dry storage slips may be reduced only as required in order to insure that the Marina shall at all times maintain its status as a public marina. 3. Consent. West Side, for itself, its successors and assigns, hereby consents to the elimination of any requirement (if any) by any party to construct a drystack facility on the Core Parcel or any other property demised pursuant to the Marina Lease, including, but not limited to, the 7 elimination of any requirement (if any) for construction of a drystack facility on the Core Parcel set forth in the Marina Lease. Further, West Side consents to the use of the Core Parcel for parking purposes, as well as any other purposes as the City deems appropriate, provided that such other use is consistent with applicable law, including the zoning requirements for the Core Parcel. Further, by execution of the Joinder attached hereto, the Marina Lessee (on behalf of itself and its successors and assigns) consents and agrees to the elimination of any requirement by any party to construct a drystack facility on the Core Parcel or any other property demised pursuant to the Marina Lease, including, but not limited to, the elimination of the requirements for construction of a drystack facility on the Core Parcel as set forth in the Second Amendment to the Marina Lease, and the use of the Core Parcel for any purpose not inconsistent with the uses described in the Marina Lease, provided that such other use is consistent with applicable law, including the zoning requirements for the Core Parcel. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. Signed, sealed and delivered in the presence of: WEST SIDE PARTNERS, LTD., a Florida limited partnership a Florida By: t'7naJ' )/amu; Ho/"Iurl FLORIDA, By: TO FORM & LANGUAGE & FOREXECUnON ~~ 8 s;h6/11 0. o~ THE MIAMI BEACH REDEVELOPMENT AGENCY, a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, as amended, Ch~~er 13, Part III Florida :~mtes ~ diU APPROVED AS TO FORM & lANGUAGE & FOR EXECUTION 4iiJj~/f::; <;/~/q J C...f:f.'rr.! Cotlns<e! 9 STATE OF FLORIDA ) ) SS: COUNTY OF mjlJ{1}J- 0801. ) The foregoing instrument was acknowledged before me this I J." day of fJp,,1 , 1919 by 1holllr>> ~ as Q"o/~ of West Side Partners, Inc., a Florida corporation which is a general partner in W est ~e Partners, Ltd., a Florida limited partnership, on behalf of the corporation and the partnership.~she personally appeared before me, is personally known to me or produced as identification. [NOTARIAL SEAL] OFFICIAL NarARY SEAL STEVEN M HELFMAN NarARY PUBUC STATE OF FLORIDA COMMISSION NO. cC726651 MY COMMISSION EXP. APR, 14 Notary,' Print Name: Notary Public tate of My commis on expires: STATE OF FLORIDA ) ) SS: COUNTY OF ) ~ . The foregoing instrument was acknowledged before me this-lf day of~, 19j1by_ l:J~/Mi) 0. ll4td,,0 as J..-{11 vor of City of Miami Beach, Florida, a municipal corporation, on behalf of the corpor~tion. HeI_ personally appeared before me, is personally known to me or produced - as identification. [NOTARIAL SEAL] Notary: ~~ Print Name: L, tV Notary Public, State of Pt...c"nd 0 My commission expires: tf~ U-2.tl<>'"L- OFFlCJAL NorARY SEAL LILLIAN BEAUCHAMP NorARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC738372 MY COMMISSION EXP. APR. 29.2002 10 STATE OF FLORIDA ) U .. . D ~) SS: COUNTY OF ""'AM 1- Q:L) rt. The foregoing !nstrument was acknowledged before me this U day of /vi ~ ' 1911 by MtV>.J 0, fC,(dIN as CLa,o., 4<\J of The Miami Beach Redevelopment Agency, a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, as amended, Chapter 163, Part ill Florida Statutes. He/_personally appeared before me, is personally known to me or produced -- as identification. [NOTARIAL SEAL] Notary:h~ Print Name: Notary Public, State of R.,)r:"'~ My commission expires: (-U- 2-COL..- OFFICIAL NOTARY SEAL LILLIAN BEAUCHAMP NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC738372 MY COMMISSION EXP. APR. 29,2002 11 .\. . JOINDER The undersigned, MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited partnership, as the Marina Lessee, hereby joins in the foregoing Agreement for purposes of confirming its agreement to the provisions thereof MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited partnership By: SoBe Marine, Inc., a Florida corporation, general partner ;;..2 By. ~p~~ STATE OF FLORIDA ) j ) SS: COUNTYOF:.-I}IJ."~ ) The foregoing instrument was acknowledged before me thi~'1ay Of~, 19_ by Robert W. Christoph as President of SoBe Marine, Inc., a Florida corporation, which is the general partner of Miami Beach Marina Associates, Ltd., a Florida limited partnership, on behalf of the corporation and the partnership. He/she personally appeared before me, is personally known to me or produced........ -Ii..; LL~ .LI c...- as identification. [NOTARIAL SEAL] -------- Notary: Print N ublic, State of My commission expires: \ OFFICIAL Nor ARY SEAL DIANNE CAPESfANY NorARY PUBUC Sf ATE OF FLORIDA COMMISSION NO. CC6lI1787 MY loll C! P. UC;, 12 1 12 CONSENT AND SUBORDINATION The undersigned, ORIX USA CORPORATION, a Delaware corporation, as the holder of the leasehold mortgage encumbering the Marina Lease, and recorded in Official Records Book 17673, Page 2862 of the Public Records of Miami- Dade County, Florida, hereby consents to the foregoing Agreement and subordinates the lien of said mortgage to the rights granted in said Agreement. ORIX USA CORPORATION, a Delaware corporation By: Name: Title: ~ ~~~~~ ' N~" - ~ POll" STATE OFFLORIDA b~ \ I'l- ) ) SS: F lJ i---1Or- COUNTY OF ) in instrum n was acknowledged beforefl1~thi~li.Way of ~9; c... , 19..i? by ., as VI(!~/r~_ {:of ORIX USA Corporation, Delaware corporation, on behalf of the corporation. He/she personally appeared before me, is personally known to me or produced as identification. [NOTARIAL SEAL] NOC.~.5~~ Print Naiiie:"' s./L-/V Notary Public, State of My commission expires: 13 EXHIBIT "A" CORE PARCEL All of Lots 22 through 29, inclusive, and Lot 21, less the Southerly 40 feet thereof, in Block III, of OCEAN BEACH FLORlDA ADDITION NO.3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida; together with a 40-foot right-of-way on the Bay side of the Hope and Rebecca Tower property, (being Lots 15 through 20 inclusive and the Southerly 40 feet of Lot 21 in Block III, of OCEAN BEACH FLORlDA ADDITION NO.3); TOGETHER WITH: The West 2 feet of Lots 15 through 20, inclusive, and the Westerly 40 feet of the Southerly 40 feet of Lot 21, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO, 3, according to the Plat thereof as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida.