HomeMy WebLinkAboutR-2021-191 Westrec Harbour Towne Marina Lease Assignment and Assumption to Harbour Towne SMI Westrec, LLCRESOLUTION NO.2021-191
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, RELATING TO THE ASSIGNMENT AND ASSUMPTION
OF THE WESTREC LEASE AND CONSENT TO ASSUMPTION TO
HARBOUR TOWNE SMI WESTREC, LLC, A DELAWARE LIMITED
LIABILITY COMPANY, THAT IS A WHOLLY -OWNED SUBSIDIARY OF
SUNTEX MARINA INVESTORS, LLC.; AUTHORIZING THE PROPER CITY
OFFICIALS TO EXECUTE THE ASSIGNMENT AGREEMENT AND
ESTOPPEL LETTER; PROVIDING FOR CONFLICTS; FURTHER,
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on October 21, 2004, the City of Dania Beach, and Harbour Towne
Associates, a California General Partnership, which converted to Harbour Towne Marina, LLC, a
Delaware limited liability company ("Tenant"), entered into an Amended and Restated Lease
Agreement ("Lease Agreement"), for the City's premises known as the Harbour Towne Marina
(the "Property"); and
WHEREAS, pursuant to paragraph 18 of the Lease Agreement, provided the Tenant is not
in default under the Lease Agreement, the Tenant may sell, convey, transfer or assign its interest
in the leasehold, after providing the City with 30-day prior written notice of the assignment request;
and
WHEREAS, paragraph 18 of the Lease Agreement provides that the City cannot
unreasonably withhold consent to the assignment; and
WHEREAS, Tenant provided the City with written notice of the assignment
("Assignment") request by letter dated November 12, 2021; and
WHEREAS, the City has completed its due diligence and confirms that Tenant is not in
default under the Lease Agreement; and
WHEREAS, the proposed assignee ("Assignee") has provided to the City all relevant
corporate information, a copy of the company's latest audit information, and corporate structure
information which has been reviewed by the Finance Department; and
WHEREAS, the Tenant is being absorbed into the new company, and the officers of
Tenant shall become officers within the new company seeking the Assignment; and
WHEREAS, the administration has no objection to the Assignment request for the Lease
Agreement to be assigned to Harbour Towne SMI Westrec, LLC, a Delaware limited liability
company, an indirectly wholly owned subsidiary of Suntex Marina Investors LLC.;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the above "Whereas" clauses are ratified and confirmed as being true
and correct, and they are made a part of and incorporated into this Resolution by this reference.
Section 2. That the City Commission approves the request to assign the Amended and
Restated Lease Agreement between the City and Harbour Towne Marina, LLC, a Delaware limited
liability company, to Harbour Towne SMI Westrec, LLC, a Delaware limited liability company,
an indirectly wholly owned subsidiary of Suntex Marina Investors LLC, and further authorizes the
proper City officials to negotiate final terms and execute a Consent to the Assignment and
Assumption of Lease between Tenant and Assignee (the "Agreement"), and to execute a Ground
Lease Estoppel Letter; a copy of the documents are incorporated by reference into this Resolution
as Composite Exhibit "A", provided, however that no Agreement will be effective unless and until
City officials complete the execution of the Agreement.
Section 3. That the City Manager and City Attorney are authorized to make minor
revisions to the Agreement and Ground Lease Estoppel Letter as are deemed necessary and proper
for the best interests of the City.
Section 4. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 5. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
PASSED AND ADOPTED on December 14, 2021.
ATTEST:
{ Q ✓
L-
THOMAS SCHNEIDER, CMC TAMARA JAMES
CITY CLERK MAYOR
APPROVED AS TO F RM)AND CORRECTNESS:
THOMAS J. A B O
CITY ATT RN Y
2 RESOLUTION #2021-191
This instrument was prepared by
and after record return to:
Jon Chassen, Esq.
Bilzin Sumberg Baena Price & Axelrod LLP
1450 Brickell Avenue
Suite 2300
Miami, FL 33131
Parcel Identification Numbers:
504235-16-0010
504235-16-0020
[Space Above This Line For Recording Data]
ASSIGNMENT AND ASSUMPTION OF LEASE and CONSENT
[Harbour Towne Marina]
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment"), is made as
of the day of , 202 ("Effective Date"), by and between Harbour Towne
Marina, LLC, a Delaware limited liability company ("Assignor"), whose address is c/o Westrec
Marina Management, Inc., 16633 Ventura Blvd., Suite 600, Encino, California 91436; and
Harbour Towne SMI Westrec, LLC, a Delaware limited liability company ("Assignee"), a
subsidiary of Suntex Marina Investors LLC, a Delaware limited liability company, whose address
is 17330 Preston Road, Suite 220A, Dallas, Texas 75252. It is joined by the City of Dania Beach,
a Florida municipal corporation, for the purposes herein expressed.
A. Assignor is the lessee under that certain Amended and Restated Lease Agreement,
dated October 21, 2004, by and between Assignor, as successor by conversion from Harbour
Towne Associates, a California General Partnership ("Original Tenant"), as lessee and the City
of Dania Beach, a Florida municipal corporation ("Lessor") as lessor (as modified and renewed,
the "Lease"), which Lease is the subject of that certain Memorandum of Amended and Restated
Lease Agreement by and between the City of Dania Beach, a Florida municipal corporation and
Harbour Towne Associates, a California general partnership dated October 21, 2004 and recorded
October 21, 2004 in Official Records Book 38401, Page 780, all of the Public Records of Broward
County, Florida (as amended, the "Memorandum of Lease").
B. Assignor desires to assign, transfer and convey to Assignee all of Assignor's right,
title and interest in and to the Lease, and Assignee desires to assume all of the duties and
obligations of Assignor in and to the Lease, subject to the terms and conditions set forth in this
Assignment.
C. Lessor joins in this Assignment to signify Lessor's consent to same.
MIAMI 8958131.4 100255/300762
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. The parties agree that the foregoing Recitals are true and correct and incorporated
herein by this reference.
2. Assignor hereby assigns, transfers and conveys to Assignee all of Assignor's rights,
title and interest in and to the Lease, together with all rights, privileges, and benefits under the
Lease after the Effective Date.
3. Assignee hereby assumes all of the rights, title, duties and obligations of Assignor
in and to the Lease accruing from and after the date of this Assignment.
4. This Assignment shall be governed by, interpreted under and construed in
accordance with the laws of the State of Florida. Venue for any lawsuit or action related to this
Assignment, including a dispute over any deposits, shall be in Broward County, Florida.
5. The provisions of this Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
6. This Assignment may be executed in counterparts, all of which shall constitute the
same Assignment, notwithstanding that all parties to this Assignment are not signatories to the
same or original counterpart.
[SIGNATURE PAGES FOLLOW]
2
MIAMI 8958131.4 100255/300762
Assignor and Assignee have executed this Assignment as of the Effective Date.
ASSIGNOR:
Signed, sealed and delivered Harbour Towne Marina, LLC,
in the presence of: a Delaware limited liability company
Print Name:
Print Name:
STATE OF
SS:
COUNTY OF
By: Harbour Towne Holdings, LLC,
a Delaware limited liability company,
its Manager
By:
Name: Jeffrey K. Ellis
Title: Vice President
The foregoing instrument was acknowledged before me by means of ( ) physical presence
or ( ) online notarization this day of , 202, by Jeffrey K. Ellis, as Vice
President of Harbour Towne Holdings, LLC, in its capacity as Manager of Harbour Towne Marina,
LLC. He ( ) is personally known to me or ( ) has produced a driver's
license as identification.
Signature of Notary Public
State of [
Print, Type or Stamp Commissioned Name of
Notary Public
My Commission Expires:
Signature Page to Assignment and Assumption of Lease and Consent — Harbour Towne Marina
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
ASSIGNEE:
Harbour Towne SMI Westrec, LLC,
a Delaware limited liability company
By:_
Name:
Title:
STATE OF )
SS:
COUNTY OF )
The foregoing instrument was acknowledged before me by means of ( ) physical presence
or ( ) online notarization this day of , 202_, by ,
as of Harbour Towne SMI Westrec, LLC. He/She ( ) is personally known to me or
( ) has produced a driver's license as identification.
Signature of Notary Public
State of [
Print, Type or Stamp Commissioned Name of
Notary Public
My Commission Expires:
Signature Page to Assignment and Assumption of Lease and Consent — Harbour Towne Marina
CONSENT OF LESSOR
The foregoing Assignment and Assumption of Lease is approved by the City of Dania Beach
this day of , 202. Such approval is conditioned on Assignee owning both the
assigned leasehold interest and the fee simple interest in the portion of Harbour Towne Marina located
adjacent to the Premises which are the subject of the Lease at and following the Assignment and
Assumption of Lease; provided, that Assignee shall have the right to transfer or encumber the adjacent
fee simple interest in a substantially similar manner as permitted with respect to the Premises as
expressly set forth in the Lease.
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
STATE OF
SS:
COUNTY OF
LESSOR:
City of Dania Beach,
a Florida municipal corporation
By:
Name:
Title:
The foregoing instrument was acknowledged before me by means of
or ( ) online notarization this day of , 202_, by
He/She ( ) is personally known to me or ( ) has produced a
license as identification.
) physical presence
Signature of Notary Public
State of [ 1
driver's
Print, Type or Stamp Commissioned Name of
Notary Public
My Commission Expires:
Signature Page to Assignment and Assumption of Lease and Consent — Harbour Towne Marina
GROUND LEASE ESTOPPEL
CITY OF DANIA BEACH
December , 2021
Harbour Towne Marina, LLC
c/o Westrec Marina Management, Inc.
16633 Ventura Blvd., Suite 600
Encino, CA 91436
Re: Amended and Restated Lease Agreement, dated October 21, 2004, between the
City of Dania Beach, a Florida municipal corporation ("Lessor") and Harbour
Towne Associates, a California General Partnership, which converted to Harbour
Towne Marina, LLC, a Delaware limited liability company ("Lessee"), as the same
may be amended and assigned from time to time (collectively, the "Lease"), of
premises known as the Harbour Towne Marina (the "Property").
Ladies and Gentlemen:
The undersigned Lessor understands and acknowledges that Lessee currently intends to
assign its interest in the Lease to Harbour Towne SMI Westrec, LLC, a Delaware limited liability
company ("Buyer"), an indirectly wholly owned subsidiary of Suntex Marina Investors LLC, and,
in contemplation of such assignment, Buyer is relying upon Lessor's certification herein.
Lessor hereby certifies that:
1. The Lease. Lessor is the owner of the fee simple estate in the Property and is the
lessor (or landlord) under the Lease. The Lease represents the entire agreement between Lessor
and Lessee with respect to the leasing and occupancy of the Property; except as set forth on Exhibit
A attached hereto (the "Exceptions List") if any, there are no other promises, agreements,
understandings, or commitments of any kind, oral or written, between Lessor and Lessee with
respect thereto.
[X] There are no amendments to the Lease; OR
[ ] The Lease was amended on [and
2. Lease Status. The Lease has not been cancelled, terminated, amended, modified,
assigned, or extended (except as set forth above), and is in full force and effect and enforceable
against Lessor in accordance with its terms.
As of the date hereof, except as set forth on the Exceptions List: (i) all conditions and obligations
under the Lease to be satisfied or performed by Lessee and Lessor have been satisfied or performed
by the respective party; (ii) there are no uncured breaches or defaults on the part of Lessor or
Lessee, whether monetary or otherwise, under the Lease; (iii) to Lessee's knowledge, no condition
exists which, with the passage of time or giving notice or both, would constitute a default under
MIAMI 8993898.2 100255/300762
the Lease; and (iv) Lessor has not sent to or received from Lessee any notice of default or breach
under the Lease.
3. Lease Term; Extension Options. The term of the Lease expires on August 31, 2040,
unless sooner terminated in accordance with the terms of the Lease.
[X] There are no remaining options to extend or renew the Lease term; OR
[ ] Tenant has the option to extend or renew the Lease term for () additional
period(s) of (_) years (each).
4. Rent [and Percentage Rent]. The fixed, minimum or basic rent payable under the
Lease is $16,668.09 per month and has been paid through December 31, 2021
No fixed, minimum or basic rent ("Base Rent") has been paid in advance for any period
after said date, except as follows:
Percentage rent [ ] is not / [ X] is payable under the Lease, and has been paid through
October 31, 2021.
Lessee has paid all other charges due under the Lease.
No Base Rent under the Lease has been paid by Lessee more than one month in advance.
5. Security Deposit. Lessor [ ] is / [ X] is not holding a security deposit under the
Lease [and the security deposit, if any, is: $N/A ]
6. Consent. Lessor hereby consents to the assignment of the Lease from Lessee to
Buyer and Buyer's assumption of the Lease.
[Signature page follows]
MIAMI 8993898.2 100255/300762
LESSOR:
CITY OF DANIA BEACH, a Florida municipal
corporation
By: _
Name:
Title:
MIAMI 8993898.2 100255/300762
EXHIBIT A
EXCEPTIONS LIST