HomeMy WebLinkAbout06 Termination Agreement
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This Instrument Prepared By:
Thomas V. Eagan, P.A.
Steel Hector & Davis LLP
4000 First Union Financial Center
Miami, Florida 33131-2398
SA 4.2.1.2
TERMINATION AGREEMENT
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This Termination Agreement (the "Agreement") is made and ent~red into as ofthe~
~ 1999.
day of , i2lli, by and among the City of Miami Beach, Florida, a Florida
municipal corporation (the "City"); the Miami Beach Redevelopment Agency, a Florida public
agency organized and existing pursuant to the Community Redevelopment Act of 1969, Chapter
163, Part ill, 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 ssm North,
SSDI South and the Core Parcel (as more particularly described in Exhibit A attached hereto and
made a part hereof) the City and the Redevelopment Agency entered into a stipulation and order
("Order") in South Shore Developers Inc et al v City of Miami Beach et ai, Case No. 82-24526
(19) (Fla. 11 th Cir. Ct. 1982) which was approved by the 11 th 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 hiro a series of
agreements with South Shore Developers, Inc. ("SSDI") pertaining to the purchase, ownership and
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development rights of ssm South and ssm North, and which, in part, dealt with certain duties and
obligations relating to the Marina and Core Parcel, pursuant to the following documents:
1. A Contract of Sale from the City and Redevelopment Agency, as sellers thereunder,
in favor of ssm as purchaser thereunder, dated July 24, 1985, I!'ld 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 Apri130, 1986, in OK Book 12873, at Page
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2602, all in the Public Records of Miami-Dade County, Florida, 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,
1984, as recorded in O.R. Book 12276, at Page 2258, and a certified copy of which
was recorded in OK Book 16289, at Page 1495, together with a judgment for
attorneys' fees dated September 23, 1986, as recorded in OK Book 13033, at Page
1235, and a certified copy of which was recorded in OK 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 OK Book 12590, at Page 2786, of the Public Records
of Miami-Dade County, Florida (the "Mortgage");
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4. A Development Agreement dated as of April 17, 1986, and recorded in O.R.
Book 12873, at Page 2612, of the Public Records of Miami-Dade County, Florida,
by and among the City, the Redevelopment Agency, and SSDI and established in
order to define the rights and obligations of the parties relatin~ to the development
of SSDI North and SSDI 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 SSDI, 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 SSDI North and SSDI 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 ofSSDI under the 1986 SSDI Documents have been sold and
assigned to West Side as evidenced by that certain Assignment and Assumption of Mortgage and
Other Documents dated Apri16, 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 11, 1994
(the "Second Amendment to the Marina Lease"), a Third Amendment dated May 27, 1997 (the
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"Third Amendment to the Marina Lease"), and a Fourth Amendment dated April 15, 1998 (the
"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
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Miami Beach Marina Associates, Ltd., a Florida limited partnership ("MBMA"); 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
collectively 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 of SSDI South to West Side, (ii) the second closing resulted in
the conveyance to the City of certain other properties described in the 1995 Development
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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 Portofino Entities, all predicated upon the timely
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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 5.3(f) of the 1995 Development Agreement provided for West Side
to lease back ssm North to the City and the Redevelopment Agency for a term of eighteen (18)
months to be used solely for surface parking and additional marina-related uses; 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 Reach Florida a Florida municipal cor:poration and the
Miami Beach Redevelopment Aiencv a Florida municipal allency orllanized and existinll pursuant
to the Commnnity Redevelopment Act of I 969 Defendant~, seeking to enforce certain of the
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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 ~reement, 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
SSDI 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:
I. Recitations. The foregoing recitations are true and correct and are incorporated herein
by this reference.
2. Termination, West Side hereby releases and terminates that portion of
Paragraph 5.3(f) of the 1995 Development Agreement which provides for West Side to lease back
ssm North to the City and the Redevelopment Agency for a term of eighteen (18) months to be
used solely for surface parking and additional marina-related uses (the "Short-Term Lease"), and
further, West Side hereby releases and terminates any right it may have pursuant to the 1995
Development Agreement to require the City and/or the Redevelopment Agency to pay to West Side
MlA980 1116931.7
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any rent or other charges in connection with the use of ssm North by MBMA or any subsequent
lessee of the Marina (or their successors and assigns, as applicable) (collectively, the "Marina
Lessee"), except for the obligations of the Marina Lessee and/or the City, as applicable, as set forth
in: (i) that certain Improvements License granted by West Side to the City an~ the Redevelopment
Agency of even date herewith, (ii) that certain Parking License granted by.West Side to the City and
the Redevelopment Agency of even date herewith, and (iii) that certain Lease Agreement(s) entered
into/to be entered into by West Side, its successors and assigns, as lessor, and the City and the
Redevelopment Agency, as lessee, providing for permanent parking spaces on SSDI North.
3. Consent By execution of this Agreement, the City and the Redevelopment Agency
hereby consent and agree to the foregoing release and termination. Further, by execution of the
Joinder attached hereto, the Marina Lessee consents and agrees to the foregoing release and
termination.
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
y
ner
RS, INC., a Florida
By:
#u;o;;,/7i
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CITY OF MIAMI B CH, FLORIDA,
a municipal co
~
By:
Name:
.
THE MIAMI BEACH REDEVELOPMENT
AGENCY, a public agency organized and existing
pursuant to the Community Redevelopment Act of
1969, as amende, Chapter 163, Part III Florida
Statutes
By:
STATE OF FLORIDA )
) SS:
COUNTY OF ff}tf)7Jl- tJl>OIl )
n The foregoing instrument w,as }lcknowledged before me this ~ day of flirt / , 19.2!
by ll1ch&tJ irOff'W' as ~/~ of West Side Partners, Inc., a Florida corporation
which is a general partner in Wes~e Partners, Ltd., a Florida limited partnership, on behalf of the
corporation and the partnership(!!Jtlshe personally appeared before me, !! personally known .te-me
or produced as identification.
N l\.RYSEA,L
STEVEN M HELFMJ\N
NOI'ARY PUBUC Sf l\.TE OF FLORlDl\.
COMMISSION NO. cc:-m651
ISS\OI'! EXP. APIL 14
Notary'
Print Name:
Notary Public, S te of
My commission expires:
[NOTARIAL SEAL]
MIA980lll693 1-7
APPROVED ~ TO
FO~ & lANGUAGE
& FOR EXECunON
1!1t'J;!:; ~
r: !memt Coun~oP.'
APPROVED ~ TO
FORM & LANGUAGE
& FOR EXECUnON
11111141- .
','."lbmey
,:(~/'J1
0.
STATE OF FLORIDA )
_ ) SS:
COUNTY OF H/fIl1i -P<<q
. I. The foregoing instrument was acknowledged before me this 'U "aay of~, 19'11 by _
/'!tA>(~ 0, kA~ as Iv! 1.<)/ of City of Miami Beach, Florida, a municipal
corporation, on behalf of the corpor ion. HeJsIIe personal[y appeared before me, is personal[y
.
known to me or produced - as identification.
[NOTARIAL SEAL]
Notaryh)t~'~~
Print Name: . (
Notary Public, State of Pt.t, n'd&--
My commission expires: V - "2A - '~"""2--"
OFFICU'.LNOTARYSEAL
L!LLIAJ\: i-mi\UCiL\ivlP !
NOD'l.lCi'i-'lJk-,\.. 5Tiil'CCfo F/i\::;o/\ ~
COMMiSSION NO C(:'!J!:~r7? !
MY COMMISSION LXI~, A!'le I.('.j,l./ju~ ;
STATE OF FLORIDA
COUNTY OF JJIIH.-,; __1:> 4 tie
)
) SS:
)
. J The foregoi!lg instrument was acknowledged before me this U1liay of }.{'1 ' 19..fi
by "'We.! O. (~C",.r. as c./v;i r~ of The Miami Beach Redeve[opment Agency, a
public agency organized and existing pursuant to the Community Redeve[opment Act of 1969, as
amended, Chapter [63, Part ill F[orida Statutes. HeI"personal1y appeared before me, is personallY
known to me or produced as identification.
[NOTARIAL SEAL]
~z~t~:.t~~
Notary Public, State of ften ~
My commission expires: 1/- Z-4 ~ 2-l>n"
OFFICIAL I\}OTARYSf<:AL
L!LLlA~~' BE/;.UCf-IAMP
NOTARY PUIH...1L: STAn. (Ji FLor.:n")A
COMM;SSjO~,: 1\Ie CC'.':.i:J
MY COMMISSION
MlA980 1/1693 1-7
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JOINDER
The undersigned, MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited
partnership, as the Marina Lessee, hereby joins in the foregoing Termination 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 .
STAm;:: J' a.
, "' <--) SS.
COUNT ,0 - ~-)
The ;~~egOing instrument was acknowledged before me t~of ~19_fJl
by Robert W. Christoph as President of SoBe Marine, Inc., a Florida corpofation, which is the
general partner of Miami Beach Marina Associates, Ltd., a Florida limited partnership, on behalf of
the corporation .~art~hip. He/she personally appeared before me, is personally known to
me or produced _ - LI ~ as identification.
~"'....
Notary:
Print Nam .
- Notary lie, State of
My commission expires:
[NOTARIAL SEAL]
c:::
OFFICIAL NorARY SEAL
DIANNE CAPESTANY
NorARY PUBUC STATE OF FLORIDA
COMMISSION NO. CC~
MY COMMISSION EXP. AU
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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
Q~"t..'\::, :s: ~~\-
~ii;~~
~AA~
1 \
Name: 1~~~J.r
Title: jl~
STATE OF flLOR1D&O~ I A-
)
COUNTY OF F U }.::rur-i
) SS;
)
T twas ackno,:"ledged before me thisL.Q.~a~f Ot ,192.?
by ,as--l.4:..u-~{/Q"_:Y<::--of
ORIX USA: CO RATION, a Delaware corporation, on behalf of the corporation. He/she
personally appeared before me, is personally known to me or produced
as identification.
[NOTARIAL SEAL]
Not~~~ ~~
Print Name: ~~ A,r--
Notary Public, State of
My commission expires:
Notary Public, Fulton county, Georgia
My Commission Expires July 29, 2001
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EXHiBIT" A"
Legal Descriptions for SSDI North, SSDI South and the Core Parcel
SSDI NORTH PARCEL
Lots 30 through 42, inclusive, 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, together with the accretions thereto.
ALSO:
.
Lots 43, 44, 45, 46, 47, 48A, 49B and SOC of DADE COUNTY PROPERTY, according to the
Plat thereof, as recorded in Plat Book 14, at Page 70, of the Public Records of Dade County,
Florida, together with the accretions thereto.
RECORDER'S NOTE: The legal descriptions appearing in this Exhibit "A" are being provided
for informational purposes only. The foregoing instrument does not affect title to SSDI South
and the Core Parcel. The Recorder's Office is hereby directed not to post this instrument against
title to SSDI South or the Core Parcel described in this Exhibit "A".
SSDI SOUTH PARCEL
Lots 1 through 14, inclusive, 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, together with the accretions thereto; ,
ALSO:
That Part of Biscayne Street (also known as Biscayne Avenue) as shown on said Plat of OCEAN
BEACH FLORIDA ADDITION NO.3, lying westerly of the southerly projection of the west
Right of Way line of Jefferson Avenue as shown on said Plat and being bounded on the wesl by
Biscayne Bay, together with the accretions thereto;
ALSO:
All that part of the North 132.0' of Section 10, Township 54 South, Range 42 East, described as:
Beginning at a point on the Northern boundary of said Section 10, which is intersected by the
Easterly boundary of Jefferson A venue extended Southerly across Biscayne Street as a point or
place of beginning; thence Southerly continuing the Easterly boundary of Jefferson Avenue
extended for a distance of 132.0' to a point; thence Westerly 208.1' more or less along a line
parallel to and 132.0' Southerly from the Northern line of said Section 10 to Biscayne Bay;
thence Northwesterly meandering the Bay to the intersection of the Northern line of Section 10;
thence Easterly along the Northern line of Section 10, 285.0' more or less to the point or place of
beginning (the Northerly boundary of said Section 10 being common with the Southerly
boundary of Biscayne Street); Also described as: All of that part of the North 132.0' of Section
10, Township 54 South, Range 42 East, known as Tract A or the Smith Company Bay Front
Tract, more particularly described as follows, to wit: Bounded on the North by the Northern line
of said Section 10; bounded on the East by the East line of Jefferson Avenue extended; bounded
on the South by a line parallel to and distant 132.0' South of the Northern line of said Section 10,
and bounded on the West by Biscayne Bay, together with the accretions thereto.
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CORE PARCEL
All of Lots 22 through 29, inclusive, and Lot 21, less the Southerly 40 feet thereof, 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; 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 111, of OCEAN BEACH FLORIDA
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.
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