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HomeMy WebLinkAboutR-1989-004 f J ' J RESOLUTION N0. 04-39 A RESOLUTION OF THE CITY OF DANIA, FLORIDA, APPROVING SUBLEASE AGREEMENT BETWEEN SOUTHEAST BANK, N.A. , AS TRUSTEE, A FLORIDA CORPORATION AND HARBOUR TOWNE ASSOCIATES , A CALIFORNIA GENERAL PARTNERSHIP; AND PROVIDING THAT ALL RESOLUTIONS OR PARTS OF RESOLUTIONS IN CON- FLICT HEREWITH BE REPEALED TO THE EXTENT OF SUCH CONFLICT ; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA, FLORIDA: Section 1. That that certain sublease agreement dated December 31, 1988, between Southeast Bank, N.A. , a Florida Corporation and Harbour. Towne Associates, a California General Partnership, a true copy of which is attached hereto and made a part hereof as Exhibit "A" , be and the same is hereby consented to and approved. Section 2. That all resolutions or parts of resolutions in conflict herewith be repealed to the extent of such conflict . Section 3. That this resolution shall be in force and take effect immediately upon its passage and adoption . PASSED and ADOPTED on this loth day of January , 1989. A 1MXYOR COMMrSSIOW ATTEST: r CITY CLERK - AUDITOR APPROVED AS TO FORM AND CORRECTNESS / By''c7 G . eM FRANK C. ADLER, City Attorney J Resolution No. 04-39 j I f i 1 SUBLEASE AGREEMENT THIS SUBLEASE AGREEMENT (this "Lease" ) is made and entered into this j day of December, 1988 by and between SOUTHEAST BANK, N. A. , as Trustee, a Florida corporation (hereinafter referred to as "Lessor") , and HARBOUR TOWNE ASSOCIATES , a California general �n partnership, (hereinafter referred to as "Lessee ") , with the terms "Lessor" and "Lessee" including their successors, heirs, administra- tors and assigns wherever and whenever the contents and context hereof so requires or permits, with reference to the following facts and objectives: ,., A. The City of Dania, a Florida municipal corporation (the "City" ) , entered into a Lease Agreement with Marine Conversions, Inc. , a Florida corporation, on or about May 28, 1980, which was amended on January 4 , 1985 , September 1, 1986 and November 28, 1988, (the "Dania Lease") . B. The Lessor, on or about the 1st day of July, 1986 , was assigned all of Marine Conversons, Inc. 's right, title and interest in the Dania Lease. C. The Lessor desires to lease to the Lessee and the Lessee desires to lease from the Lessor the property covered by the Dania Lease. NOW, THEREFORE, Lessor and Lessee agree as follows: -1- Fxl#BIT N ARTICLE I DEMISE AND TERM 1 . 01 Demise. Lessor hereby leases to Lessee and Lessee hereby leases and accepts from Lessor, on the terms and subject to the conditions of this Lease, the real property described on Exhibit A attached hereto and incorporated herein by this reference (the "Land" ) , together with all improvements now or hereafter located o the Land (collectively, the "Premises" ) . 1.02 Additions to Land. If real property is added to the premises covered by the Dania Lease by amendment to the Dania Lease, then Lessee, by written notice to Lessor , may cause such real pro- perty also to be added to the Premises without any further action on the part of Lessor or Lessee. 1 . 03 Term. The term of this Lease shall commence on the date of this Lease and shall terminate on August 31 , 2010; provided, however , that if the term of the Dania Lease is extended or renewed to a date after August 31 , 2010 , or if a new lease is entered into between the City and Lessor upon the expiration or termination of X the Dania Lease, then the term of this Lease shall be extgended to the date of termination of the Dania Lease, as extended or renewed, or such new lease, without any further action on the part of either Lessor or Lessee. Lessor shall execute all documents and take all other actions required or advisable to maintain its tenancy of the Premises under the Dania Lease, and, unless otherwise requested by -2- J { Lessee, shall execute all documents and take all other actios required or advisable to exercise any rights or options to renew or extend the Dania Lease, or to enter into a new lease with the City Pursuant to Section 4. 12 of the Dania Lease, or otherwise, upon the expiration or termination of the Dania Lease, Lessee shall cooperate with Lessor in any such efforts , ARTICLE II LESSEE 'S AND LESSOR 'S OBLIGATIONS 2 . 01 Performance of Dania Lease Obligations, Subject to the provisions of the Lessor as "Lessee" under the Dania Lease (including obligations to make any payments to the City of Dania, except for the obligation to pay "Basic Rent" to the City, as defined in Section 2. 02 below) , accruing from and after the date of this Lease and Lessee shall succeed to all of Lessor 's rights under the Dania Lease. Lessor may enforce Lessee 's obligation to perform such obligatons of Lessor as "Lessee" under the Dania Lease. The Dania Lease is attched hereto as Exhibit B and its terms and provi- sions are incorporated herein by this reference, 2.02 Rent Payable to City, Notwithstanding Section 2 .01 above, Lessee shall not perform the obligation of Lessor to pay to the City the "rent" ( the "Basic Rent") required to be paid pursuant to Article 2.2 of the Dania Lease , which Article 2 . 2 was added to the Dania Lease by paragraph 7 of the Modification of Lease Agreement dated November 28 , 1988, and Lessor shall continue to pay -3- i to the City such Basic Rent required to be paid to the City under the Dania Lease. 2 . 03 Rent Payable to Lessor• General Provision. Rent shall be payable to Lessor under this Lease in an amount equal to eight percent of the gross revenues received by Lessee from subleasing and boat storage rentals (wet or dry) on the Premises; provided, however, that rent payable hereunder shall not be less than $100 ,000 .00 for each full calendar year during the term of this -3a- I J a Lease. For purposes of determining the amount of gross revenues received by Lessee in respect of a subleased portion of the Premises, the amount of rent received by Lessee from the subtenant in respect of such subleased portion shall be included in Lessee ' s gross revenues, and any receipts or revenues received by such subtenant shall not be included - -in Lessee 's gross revenues. 2.04 Manner of Payment of Rent. In order to effectuate the purposes set forth in Section 2.03 above, Lessee shall pay the Lessor $8, 333 on the first business day of each of the first four calendar months during the term of the Lease, except that with the first of such payments Lessee shall also pay $280 for each day from the date of this Lease to the end of 1988. Thereafter , Lessee shall pay the Lessor $8,333 on the first business day of each calendar month during the term of the Lease except for February, May, August and November . Not later than the first business day of each of such months, Lessee shall calculate the amount payable to Lessor for the three-calendar-month period ending one month prior to such day, based on the gross receipts formula set forth in Section 2 .03 above. If such amount exceeds $24,999, then on such day Lessor shall pay to Lessor $8, 333 plus the amount of such excess; if such amount is less than $24,999, than on such day Lessee shall pay to Lessor $8, 333 less the amount of such deficit. Prior to 4 - J 1 i the payment due on the first business day of each February, Lessee shall determine whether the total amount paid (or to be paid on such day) in respect of the previous calendar year is at least $100,000. If not, then notwithstanding the other provisions of this section, Lessee shall pay to Lessor on such first business day of February $8,333 plus the amount required to meet the $100, 000 minimum rental requirement for the previous calendar year . 2 . 05 Acceptance of Rent from Leaseback Lessee. Lessor acknowledges that Lessee is entering into a certain Facilities Lease and a certain Restaurant Parcel Lease with Marine Conversions, Inc. ( "MCI" ) dated of even date with this Sublease and covering portions of the Premises ( the "Leaseback Leases" ) . Lessor hereby consents to Lessee's entering into the Leaseback Leases with MCI, and Lessor agrees to accept directly from MCI that portion of the rent payable under this Sublease attributable to the portions of the Premises further subleased to MCI by the Leaseback Leases or attributable to the activities upon such portions. 2.06 Construction. Notwithstanding anything in this Lease or the Dania Lease to the contrary, Lessee shall have no obligation hereunder to construct a park and recreation area, restaurant, tennis courts, pro shop or nature trail. - 5 - i 2.07 Lessee shall provide to Lessor and the City infor- mation as to any of the following: (a ) bankruptcies; (b) mortgage foreclosures; (c ) pending litigation which would in any manner affect the ability of the Lessee or its principals, stockholders or principal partners ; and (d ) restrictions, restraints or impositions imposed by Federal or State regulatory agencies such as the Federal Housing Administration and the Securities and Exchange Commission. b..l -5a- I . ARTICLE III LENDER PROTECTION 3 .01 Leasehold Mortgage Authorized. From time to time during the term of this Lease, Lessee may, subject to the terms of the Dania Lease, mortgage or otherwise encumber all or any portion of Lessee 's leasehold estate in the Premises created by this Lease ( the "Leasehold Estate") under one or more Leasehold Mortgages (as defined in Section 3. 02 ) and may assign this Lease as security for any such Leasehold Mortgage. Lessor shall execute and deliver any estoppel certificates reasonably required by any lender or proposed lender in respect to any such Leasehold mortgage. 3 .02 Definitions. °i (a ) The term "Leasehold Mortgage" or "Mortgage" as used in this Article shall include a mortgage , a deed of trust or other security instrument by which Lessee 's Leasehold Estate, or a portion Of it, is mortgaged, conveyed, assigned, or otherwise transferred, to secure a debt or other obligation. (b) The term "Leasehold Mortgagee" or "Mortgagee" as used in this Article shall refer to a holder of a Leasehold Mortgage in respect to which the notice provided for by Section 3. 04 has been given. 3.03 Effect of Lien. A Leasehold Mortgagee or its assigns may enforce such lien and acquire title to the Leasehold Estate in any lawful way. Pending foreclosure of such lien, the Leasehold Mortgagee may take possession of and operate the Premises, performing all obligations performable by Lessee. Upon foreclosure of such lien by power of sale, judicial foreclosure, or upon acquisition of the Leasehold Estate by deed in lieu of foreclosure, the Leasehold Mortgagee may sell and assign the Leasehold Estate hereby created. Any person or entity acquiring such Leasehold Estate shall be liable to perform the obligations imposed on Lessee by this Lease only during the period such per- son has ownership of said Leasehold Estate or possession of the Premises. 3 . 04 Notice to Lessor. Upon the recordation of any ;�.., Leasehold Mortgage previously approved by Lessor, Lessee shall deliver or cause to be delivered to Lessor a copy of such Leasehold Mortgage, a copy of the note or other evidence of indebtedness secured thereby and the name and address of the Mortgagee. From and after satisfactory receipt of such notice with respect to an approved Leasehold Mortgage, Lessor shall follow the procedures set forth in Section 3.05 with respect to such Leasehold Mortgage. In the event of any assignment of a Leasehold Mortgage or in the event of a change of address of a Leasehold Mortgagee or of an assignee of such Mortgagee, Lessee shall deliver to Lessor a notice of the new name and address. 7 - 3. 05 Notice to and Rights of Leasehold Mortgagees . (a) When giving notice to Lessee with respect to any default hereunder, Lessor shall also serve a copy of each such notice upon any Leasehold Mortgagee with respect to whom a written notice specifying the name and address of such Leasehold Mortgagee was delivered to Lessor . In the event Lessee shall default in the performance of any of the terms, covenants, agreements and conditions of this Lease on Lessee 's part to be performed, any Leasehold Mortgagee shall have the right , within the grace period, if any, available to Lessee for curing such default, to cure or make good such default or to cause the same y to be cured or made good, and Lessor shall accept such performance on the part of any Leasehold Mortgagee as though the same had been done or performed by the Lessee. (b) In case of a default by Lessee in the payment of rent hereunder, Lessor will take no action to effect a termination of this Lease by reason thereof unless such default has continued beyond 30 days after Lessor shall have served a copy of such notice upon Lessee and any Leasehold Mortgagee . (c) In the case of any other default by Lessee, Lessor will take no action to effect a termination of the term of this Lease by reason thereof unless such default has continued beyond the grace period, if any, available to Lessee for curing said default, and then only after Lessor shall have given to all - 8 — I i Leasehold Mortgagees 30 days after the expiration of Lessee ' s grace period for curing such default within which either : (i ) commence to cure such default , if such default is susceptible of being cured by the Leasehold Mortgagee without the Leasehold Mortgagee obtaining possession of the Premises: (ii ) to obtain possession of the Premises ( including possession by a receiver ) and to cure such default in the case of a default which is susceptible of being cured when the Leasehold Mortgagee has obtained possession thereof; or ( iii ) institute foreclosure proceedings and to complete such foreclosure proceedings or otherwise acquire ° •� Lessee 's interest under this Lease with reasonable and continuous diligence in the case of a default which is not so susceptible of being cured by the Leasehold Mortgagee. A Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if the default which prompted the service of such notice has been cured. (d) As long as there is a Leasehold Mortgagee, neither the bankruptcy nor the insolvency of Lessee shall operate nor permit Lessor to terminate this Lease as long as all Rent and all other charges of whatsoever nature payable by Lessee continue to be paid in accordance with the terms of this Lease. 9 - I J (e) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings as aforesaid shall be deemed extended by the number of days of delay occasioned by judicial restriction against such initiation or occasion by other circumstances beyond the Leasehold Mortgagee ' s control . ( 2 ) During the period that a Leasehold Mortgagee shall be in possession of the Premises or during the pendency of any foreclosure proceedings instituted by Leasehold Mortgagee, the Leasehold Mortgagee shall pay or cause to be paid the rent and all other charges of whatsoever nature payable by Lessee hereunder which have been accrued and are unpaid and which will thereafter accrue during said period. Following the acquisition ;..,i of the Leasehold Estate by the Leasehold Mortgagee or its designee, either as a result of foreclosure or acceptance of an assignment in lieu of foreclosure, the Leasehold Mortgagee or party acquiring title to the Leasehold Estate shall, as promptly as possible, commence the cure of all defaults hereunder to be cured and thereafter diligently process such cure to completion, except such defaults which cannot in the exercise of reasonable diligence be cured or performed by the Leasehold Mortgagee or party acquiring title to Lessee' s leasehold estate, whereupon Lessor ' s right to effect a termination of this Lease based upon the default in question shall be deemed waived. Any default not susceptible of being cured by the Leasehold Mortgagee or party - 10 - I J acquiring title to the Leasehold Estate shall be, and shall be deemed to have been, waived by Lessor upon completion of the foreclosure proceedings or acquisition of Lessee ' s interest in this Lease by any purchaser (who may, but need not be, the Leasehold Mortgagee) at the foreclosure sale, or who otherwise acquires Lessee's interest from the Leasehold Mortgagee or by virtue of a Leasehold Mortgagee 's exercise of its remedies . Notwithstanding the foregoing, if any such default which is not susceptible of being cured will constitute a default under any Master Lease, then such default shall not be waived by Lessor . Any such purchaser, or successor of purchaser, shall not be liable to perform the obligations imposed on Lessee by this Lease incurred or accruing after such purchaser or successor no longer has ownership of the Leasehold estate or possession of the Premises. (g) Nothing herein shall preclude Lessor from exercising any of Lessor 's rights or remedies with respect to any other default by Lessee during any period of any such forebearance, subject to the rights of any Leasehold Mortgagee as herein provided. (h) If at any time there shall be more than one Leasehold Mortgage affecting the same portion of the Leasehold Estate, the holder of the Leasehold Mortgage prior in lien rights shall be vested with the rights of a Leasehold Mortgagee under - 11 - 7 i this Article, to the exclusion of the holder of any junior Leasehold Mortgage (with the exception of notice provisions ) ; provided,ed, however, that if the holder of the first lien Leasehold Mortgage shall fail or refuse to exercise the rights, and provided further , however, that with respect to the right of the holder of the Leasehold Mortgage under Section 3 . 06 below to request a New Lease, then notwithstanding the limitation of time set forth in said section, such right may be exercised by the holder of any junior Leasehold Mortgage in the event the holder of a prior Leasehold Mortgage shall not have exercised such right within such 30 day period after the receipt of Lessor 's termination notice, provided that such junior Leasehold Mortgagee must exercise such right by no later than 45 days after the •� giving of notice by Lessor of termination of this Lease as provided in said Section 3. 06. ( i ) in the event any Leasehold Mortgagee pays any rent or other sums due hereunder which relate to periods other than during its actual ownership of the Leasehold Estate, such Leasehold Mortgagee shall be subrogated to any and all rights which may be asserted against Lessor with respect to such periods of time. (j) Notwithstanding any other provision of this Lease, Lessor may terminate this Lease (or any New Lease entered into under Section 3.06) , if any payment of Rent is not paid within - 12 - I J L� _ 1 v 1 the period provided for under Section 3. 05 (g) , whether paid by Lessee, a Leasehold Mortgagee or any other person, regardless of whether a Leasehold Mortgagee has initiated or completed foreclo- sure proceedings or whether Lessee, a Leasehold Mortgagee or any subtenant or assignee is in possession of the Premises. 3 . 06 New Lease. If this Lease is terminated or cancelled for any reason where the Leasehold Mortgagees have not been given an opportunity to cure pursuant to Section 3 .05, any ^s- � Leasehold Mortgagee shall have the right within 30 days after receipt of notice of such termination (which shall be delivered to all Leasehold Mortgagees by Lessor) to demand a new lease ( "New Lease") covering the Premises for a term to commence on the date of procurement by Lessor of possession of the Premises and to expire on the same date as this Lease would have expired if it - had otherwise continued uninterrupted until its scheduled date of termination, and containing all of the same rights, terms, cove- nants, considerations, and obligations as set forth in this Lease. Such New Lease shall be executed and delivered by Lessor to such Leasehold Mortgagee within 30 days after receipt by Lessor of written notice from the Leasehold Mortgagee of such election and upon payment by such Leasehold Mortgagee of all sums owing by Lessee under the provisions of this Lease ( less the Rent and other income actually collected by Lessor in the meantime from subtenants or other occupants of the Premises) and upon - 13 J performance by such Leasehold Mortgagee of all other obligations of Lessee under the provisions of this Lease with respect to which performance is then due and which are susceptible of being cured by a Leasehold Mortgagee. After such termination of this Lease and prior to the expiration of the period within which such Leasehold Mortgagee may elect to obtain such New Lease from Lessor , Lessor shall refrain from terminating any existing sub- leases and from executing any new subleases without the prior written consent of all Leasehold Mortgagees for all rent col- lected from subtenants during such period. Any New Lease granted to such Leasehold Mortgagee shall enjoy the same priority as this •� Lease over any lien, encumbrance or other interest created by Lessor before or after the date of such New Lease. 3 . 07 Attornment . No provision of this Lease shall restrict the rights of attornment of any Leasehold Mortgagee if a Leasehold Mortgagee cures or otherwise incurs expenses in connec- tion with any attempt to cure any default of Lessee. In any such event, no provision of this Lease shall restrict the Leasehold Mortgagee' s right and ability to pursue any remedy or exercise any right it may have against or with respect to the Lessee. ARTICLE IV DEFAULT 4 .01 Event of Default Except as provided below, an event of default by Lessee under this Lease shall mean the - 14 - j failure of Lessee to perform an obligation of Lessor as "Lessee" under the Dania Lease that Lessee has agreed to perform under Article II of this Lease, if such failure continues after the delivery of notices and the expiration of cure periods provided for such default under the Dania Lease. Lessor immediately shall deliver to Lessee any notice Lessor receives from the City - relating to the Dania Lease or any default thereunder . Lessee shall be deemed in default of its obligation to pay rent to Lessor if Lessee fails to pay the Lessor any installment of rent and if such failure continues for a period as long as the cure period provided for in the Dania Lease with respect to the payment of rent by Lessor as "Lessee" thereunder. 4.02 Remedies In the event of a default by Lessee hereunder, as defined in Section 4.01 above, Lessor shall have 15 -• I J the same rights and may avail itself of the same remedies as the Citywould have with respect to such default under the Dania Lease . P ARTICLE V TRUSTEE 5 .01 Exculpation of Trustee. This Sublease is executed and delivered by the SOUTHEAST BANK, N. A. , not personally, but as Trustee , as aforesaid, in the exercise of the power and authority conferred upon and vested in it as such Trustee , and it is expressly understood and agreed that nothing herein contained shall be construed as (i ) creating any liability on behalf of Southeast Bank, N. A. , or any officer, director, employee or agent of Southeast Bank, N. A. , personally, or to (ii ) personally require performance of any covenant either express or implied herein contained by Southeast Bank, N. A. , or any of its officers, directors, employees -16- i i or agents, all such liability and obligation, if any, being expressly waived by the Lessee and by every person now or hereafter claiming any right hereunder. IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease on the day and year first above written. LESSOR: �4 p SOUTHEAST BANK, N. A. , AS TRUSTEE �� . BY: Name: JCN H . C r1 I Title• S\,'p LESSEE: HARBOUR TOWNE ASSOCIATES, a California general partnership By: PS Marinas 3 California Limited Partnership general partner By: PS Marina Investors , Inc. , a California corporation general partner BY: /4, L. Mi es, President By : PS Marina a California Limited Partnership general partner By: PS Marinas Investors , Inc. , a California corporation general partner c' By: Jer d L. Miles, President �t -17- DAVID E. GRAHAM, a resident of Palm Beach County, FLorida, individually and for and on behalf of all corporations which he owns or controls, directly or indirectly, hereby authorizes and consents to the entry into the foregoing Sublease Agreement by Southeast Bank, N. A. , as Trustee . David E. Gr am STATE OF FLORIDA COUNTY OF BROWARD BEFORE me personally appeared JOHN H. GAY, as Senior Vice President of SOUTHEAST BANK, N.A. , to me well known to be the person described in and who executed the foregoing Agreement, and acknowledged to and before me that he executed said instrument for the purposes therein expressed. WITNESS my hand and official seal this 31st day of December, 1988. 7 Notary Public, State of Florida My Commission Expires : Notary Public, Stale of florida MY Commission Expires Oct. 8, 1991 p.a.a iMu Oa, tun;Wm.on 4V J -18- J a STATE OF FLORIDA COUNTY OF BROWARD BEFORE me personally appeared JEROLD L. MILES , as President of PS MARINA INVESTORS, INC. , a California corporation, general partner of PS MARINAS 3, a California Limited Partnership, as General Partner of HARBOUR TOWNE ASSOCIATES, a California general partnership, and President of PS MARINASINVESTORS, INC. , a California corporation, general partner of PS MARINAS 4, a California Limited Partnership, as General Partner of HARBOUR TOWNE ASSOCIATES, a California general partnership, known to be the person described in and who executed the foregoing Agreement, and acknowledged to and before me that he executed said instru— ment for the purposes therein expressed. WITNESS my hand and official seal this day of December, 1988. fi Notary Public, State of Florida My Commission Expires: Netary Public, Slate of Florida STATE OF FLORIDA My Commission Expifes Oct. 8, 1991 COUNTY OF BROWARD jy.a.d IN.Ioy he Inwnnp ln6 BEFORE me personally appeared DAVID E. GRAHAM, as President of MARINE CONVERSIONS, INC. , to me well known to be the person described in and who executed the foregoing Agreement , and acknowledged to and before me that he executed said instrument for the purposes therein expressed. WITNESS my hand and official seal this ?/:Tday of December, 1988. Notary Public, State of Florida My Commission Expires: Notary Public, Stale of Florida i.1y Commission Expifes Oct. 8, 1991 a�•a Iw.Irv. F.u:W.•ou Owl 3 1 EXHIBIT "A" LEASED AREA All of Harbour Towne Marina , according to the plat thereof recorded in official Records Book 118, Page 34, of the Public Records of Broward County, Florida. r I J