02-15-05 Item 16aN
Z
N ❑ N
N
r- CD
N y
C
N
I7 7
N 3 �< Ci 0_ 3
C
N
y
CD CD (� N c
CO71
N
D
N
N CS. CD 6 ..� O O_
m
cno- o °o
m
i
0
v CD 5- muo� N�
�_
3
o
-
-.
(D
CD_.� Q CD
C1 N p �. .Z7
CD
B CD U7 V 0 ^
F
7
O
7 - 2 W� CP
to
r
.
m
D- 7 a C1 0) N ID
W
N
Q
-i v m m %
O G
N
o
a
co'° o -0 <
a
D
A o== o __
m
CD
CD N cD Ui CD
-a
N<
G W N i
6
CD w
3
N
ID
c w 3�
CD
CD
CD
m
CD
w
O
CD N
CD N
CD
tS
fri
{fl
D
O
ccn DO
.D
d.
O
N
O O
000
CV
1
?�
OD
O
O CAD CD O 0
O
O O O O 0
O
CD
-
C)
O
6
A
fD (n O'
CTf CA? A
CD
°o op
CD
-4 -
O O
a.
iA
5-
CCD.,
W
CpTt C07i :W.. CT W V
<.
W
-N
O co .aj=
O
is {A,u b4#
t6A {i4 54 $g
-
Cp7f:' Cp7�7 �' CAN CC, -y W
CD
-c3`
t
1 N COD m 4N 4 p
O O
Z
�.
.XA
p.' e O � Al O -
_
W
fA
iW': VC O V;
�
o0i COfi
r O'
CD
co
O Cl SD. v O'
fU
O N
O
N
O W W p W0
Cl O C»
.
NIA Dy
sp`,
t N h to if3 EA k.
lA
CTI Ch
Nu
a� p
Co
N
O th0 mSaCOTr�}O�
r O N
t` CJa" ZT xtw .07 O
r V O
� lso .9 3 G4 (fl f)
N
O O
WO
In
co
0 O A7 O Y SJ
ENO
N
Z z
r-
N CD G C, N N N Z
N
S
0
C
0O 6"6
m
m
_
w 3 G.
r- ��
C _
,
O
(D
N
O
CD
p C O w
O
0- CD 0- N) Q O
Q O O�
D)
NCD
O N O'n >
F 2 7 CD N N '0 C
(D
. CL
-
S
rt N_ (D PI
7 N p
O
b
O
6 � O N
A
' CD Cl
j
N NN J �_
3
to
CJ
a
0
_- w� o m
CD
N
A ] r K a C (p
7
.x
CL
W
O
W ° Ci O-O�
77 a
m
K
b
CD
N N N CD U W CD
O
c
C CD o y 00
w
bye
��
m m,
m
CD CL
a y `n
N (D c
W
O
CD
(D
Gi N
O
CD N
N..
{A
ffl �{fl` ffl fA Xfl`.
.
A
:.Wp O W
ID
p
(b7i Obi
O O N W N O=
N
-
W
O Wes' O sO'
-
W
O O Ut,
fA N
:O•
d
v
W
O W d]! A
W
W
-
_
O O W
W
O1
64
{fj_ , <fl fi {fi ffl lfl -ffl
.
,
CD .
O
W
b W
_off i
0 0
W
00 N .�,, V0
N
O W O ro
V
O O .J..
N
b' O IVw CU O
ID
Zy
_
fA
Yb
N
O ON:
W
C71
O W 1 n1 :_4,
fA
{fl: {A 34A fA to Hf iir:
A
p= p
ID
to
41
0 0 'CO
W 'O
N
co
O N N W
V
O W .OI
cn
O Fm
N
O`
v,
CO O N ,fV -r9 N
O
'IV
ON;
N
Z
Z
r r cQ E a-0 0-0
N
p
0
rt
y y C 0 d. m 111 � �:
p
N
CD
fl7
=
m N N 3 F 'o O
_
O
CA
n
p � 7 CD (O N N
S
C>t
-
y
D
.y. tT CD s N O o.. 3
CD
0
N
-
CD
.
CD
N N N C.
2 0
CL
co CD w o rt
CT V
CD
CD
CL 0y Cn� m
-
CD
N
C.
-I N W CD n
C1 �- 7c Sh Q
W
r y CL C fD
3
0
0
(°_ o W a <
C
W
O
° O '"' O d N CD
CD
m
W
CD N CD CD U' N
'a
CD
CU
CD
CD fD -�
C
CD
CD O:
W
N cri
o
CD o°
0 CD
-
(D
G)
p
N
CD N
N
CD
EA
.60 ffl ffl [!d #n
Ul
Ul
V1�
- CdT '':CT
CWT
CD o WC71O;
Co
O N V
-
O OD Cp s
Cb
O O w-- O
-d
CT ChCO W
W
O
NO
N A O O
N-
N
CTS CT O �.
N
O
:N"
O O
'
-
0
O N N. V 'W p,..
O
N
Cl
W
0
O OW., CWD W 0
W
W
_ 31 `FA -4fl- {fl
z H3 W
V
�
_W
CAA 0071 W CO d7
- D
ffl
_Y
ifl ffl'
V
Co 0W,
VCO 'v 01
CD<
A
co
O O 71 co';
O O (b' W Cp
N
1
W
N
O O
W
O S3W V ST 6 a
N
W
O fb , C31 CT O
V
W
W
O O fJ. (nC31, i0i
O O W
241 OD, cl
v
O O (AO
V
4fl
{_
{A fA 69fg ti3
03
0 (b LT
cn
r o7 p
-
co
w
0 W (A
�
CD
CD
-
0
0
iA ffi
Dh
N
O
C77,
CD
W p
Or two
PJ'
Cj
O "'
N
�
Z
r (O 7 c- v
dl
z
CD D) y
w
o
0
S
(D
m
r Q91 3 Efd7 C C
O
?-
0
CD
�+
;?
0
O. O O
Cr
0
fD
.yn Qm C_D o_I O'O_
� in O. O
O
O
O.
a
3
3 t) O CD N S
to m g CD w Q m
<
N
3 ° 0 :3
CD _
.
CD
° 3 a n � m m
D) CD D O W
CD
W
Pr
CD
N
Q
Q
y
- o . c m
w
°
oo o a v <
m
m
Q
o
o
n
N
<
CD 7
(D ul o
,X
a
w
< N
v
D
<3
-
N
c d CD I N
(D
CL
N VI
v a o
o
m
CD
m
CD
d
R
CD m
m
m
m
cn
.w
m
oo m:
"m'
m
to
o
a
o w o;
u Oi
W'
cn
o cn o
0
0 o cn "cn o
f�
Efl E» Efl'E9
O)
W
�N
°o
Cb
CA
OO
� `O) NW O
W
N
{fl
ffl .49 {p 4f3 {A Efl
W
CT
00
;0 W ,._O i— ,
0
d
PO
A
O E.A: Cn ,d0 Oi
cli-
;W
ZF,
N
O
-:
w
�O
�` ONj0OO:
W
W
W
OGJ
Ef)
(fl Ef) {p tfltAVi '
O
CT
Uf V a1 .
CCD
C)
Orb
WNu:
'<
-
w
O
'W:: W . -criD tOO
cn
o� moo.
v
rQ
CD
O1
,W.
(7 0 A p
N
-
puj,
C0 . j,. 0 FC),,
Z
—'
O
cn
O)
_ O
O
ER
+A Efl Efj 49Efl ERf'
Z Z
r r m ° v 0-0 co
_
O
M
CD CD N c n v. °� m o 3
N
0-
_
O
�
N. N N 0
C
CA
C)
or O W CD O �. N C
S
C.n
N
O
CD 3
6 CD 0' N 0
3
CD
rNr.
CO O_ o C) 3
v
C
w CD -a m m
T-
CL
_0
3
m 0 o CD CD
5. A
a
r >m o , � m m
R!:
cWi � 0
CD
CD
C.
-
_
0. 0 D7 p N
o
CD
_I m m 0.m o m
0.
W
N
�:
a� r a c
3
O
O
W O a<
2) CD
Q
c
o
m
CA
W
r-
CD N� M� G N
x
'a
y
7 00 � N c \° . N
CD
C O N
n 0 CD O
Q
CD
O_
C y C a Cn
D1 CD c \°
O
CD
7
S.
7 {D
?<
CD
0
CD N
d
CD
ffl
Efl fo, 4A 4fl .4fl ffl;
A
O
N
ON O.
RRI
A
A
p{�. WJ O
fi3
N Gp OV �W a
CCD
N
,0 CO O AOp
1;'
fA
ffifR� fH .^ iA�{A ifli
CD
co
co
0
�
W
CJt (A OW CS)
CD
to
o a a a vp
'69
N
z(.
W
CD
CO CO
C)
O
O O 0, W
Cal
00
0 Co. W
W
NO
N O W O
N
O
05.
Cpn _V CpO
00 W
v
1
CA
CA
*JWO!
O m' W(ilG=.
O
O
s
of
O�
1
-
O W
to
to
fi4�
#fl 2iTEfl {A
W
Cpn � Op co
CD ,j
�E
O
-0
i Co CO:O O
-
N
O
m
m
v w
0
N
S
N
y
0
O
0
N
C �
0* CD O'
co
N�
5-0.
m
O a.
3
CD
cnao
° o3
N
CD
2
O.
5
3
O O O
.�.. (D
a-
(D
N
o
r.
W ff
- ^
O
CD
fD
m
3.� m
S'ccnn
�o
3
N
G.
0
.O.�Q.
QO
�a
O
c
p1
N
^p
?� r
�p7
cn
N
N
N N
0
CD
K6
CO CD
J
O
N
CD
(D
d N
� F
- m-
N
Cn
W
N.
O
c
(D.
y
c
N N
O-
c
N
O
N
j
CD
W
CJ
CONFIDENTIAL, PROTECTED BY THE
ATTORNEY- CLIENT WORK PRODUCT DOCTRINE
EXEMPT FROM PUBLIC RECORDS
MEMORANDUM
TO: Maria V. Davis
FROM: Luis R. Figueredo, City. Attorney's Office
DATE: January 27, 2005
RE: Proposed Framework for the Settlement of the MRP Litigation and
Lease Agreement.
Mark Richman Properties initiated a civil action against the city on March 21, 2003,
for breach of contract to jointly develop a mixed use parking garage and retail building.
MRP seeks a court order to compel the city to perform under the agreement to build the
facility, or $4.5 million in damages. The risk is not insured. The case is filed in state
circuit court and is assigned to judge Michael A. Genden. The city engaged Mr. Steve
Weinger, of Kurzban, Kurzban-&-Weinger, to serve as special counsel.
To establish entitlement to damages, MRP must prove: (1) there was a valid
contract between the parties; (2) the city breached the contract; and (3) compensatory
damages as a result of the breach. The major component of MRP's claim for damages is
lost profits.
The contract with MRP called for the parties to jointly be responsible for
development costs associated with the project. Both the city and MRP incurred costs
associated for the design of the building. In December 2002, the city commission elected
not to proceed with the development. We are very concerned that the election to not
proceed with the project was a breach of contract. We have directed special counsel to
analyze all possible theories for denial or avoidance of the claim.
MRP seeks reimbursement of expenses and lost profits it speculates it would have
earned over a 50 -year period. MRP's principal, Mr. Richman, provided a spreadsheet on
expenses and lost profits, which has been evaluated by our firm. Certain premises are
incorrect and result in over - stating the projected profits. Lost profits may be awarded only
when they can be proved with reasonable certainty. Special counsel provided a
memorandum to the commission on the evidence necessary to establish a claim for lost
profits. In essence, MRP might be able to establish lost profits for a reasonably short
period of time. It is doubtful that MRP can establish lost profits for a 50 -year period.
At the request of the city commission, the Mayor, the city manager and our office
engaged in settlement discussions with MRP. The parties agreed to a "stand still" on the
litigation to minimize legal costs while the parties engaged in the settlement discussions.
The settlement discussions yielded a tentative settlement that generally consists of the
following terms:
(i) MRP lease agreement dated March 5, 2002 will be cancelled and each party
will release the other from any and all obligations there under and all claims
of any kind and causes of action related in any manner to the cancelled lease
agreement and/or related in any manner to the lawsuit bearing Case Number
03- 07058- CA -24.
(ii) The lawsuit will be dismissed with prejudice by MRP immediately upon the
execution of the new Lease Agreement and the issuance of the building
permit.
(iii) The city would contribute $1,000,000 towards the design and construction of
the project. The city will receive credit for project costs expended.
(iv) The project would consist of 5 levels. Approximately 24,500 square feet of
retail space and 380 parking spaces.
(v) MRP would pay the city a minimum guaranteed rent equal to $76,000 per
year and a 12.5% of the annual gross parking revenue in excess of $150,000.
(vi) MRP would assume full responsibility for repaying the entire project
financing less the city's share of $1,000,000.
(vii) The City authorizes an additional 2.5 million in project funding in addition
to the 8.5 million previously authorized to cover increased costs of
construction.
(viii) MRP guarantees the cost of construction to complete the project.
(ix) The Project debt service shall be repaid by MRP and it shall also be
guaranteed by the Lease and Mark Richman's Property.
(x) MRP is required to complete construction and obtain a temporary or
permanent certificate of occupancy no later than 18 months from the date of
issuance of the building permit. In the event MRP fails to meet this
deadline, MRP shall pay the city $26,916.00 per month until the
certificate(s) of occupancy are issued.
Page 2 of 6
(xi) MRP agrees that it will not perform any site work that interferes with the
operation of the existing city parking lot prior to dismissing the lawsuit
referenced in this paragraph. The city and MRP Ishall join in a formal stay of
Case Number 03- 07058 -CA -24 pending the execution of the Lease
Agreement and the issuing of the building permit or the termination of this
Agreement.
The salient terms of the Lease Agreement provides as follows:
1. Building Lease. The City, as landlord, and MRP, as tenant, will enter into a
new lease agreement (the "Lease ") for the subject property.
2. Development. MRP will work with the City to complete the design and
plans for the parking garage structure.
The Project will consist of a five level mixed -use retail and parking garage facility
consisting of approximately 24,500 ( + / -) square feet of retail space and approximately 380
parking spaces.
The ground level floor shall be comprised of retail space with a minimum of 11 -17
parking spaces dedicated to short-term parking.
3. Rent. MRP shall pay the City an annual retail rent payment equal to
$76,000, payable on a monthly basis equal to $6,333 per month. MRP shall also pay
Additional Rent equal to 12.5% of all gross parking revenues in excess of $150,000
annually.
4. City Retail Space Rent. City retail space rent shall be one (1) dollar per
year until the completion of debt service. Commencing on the first day of the month
immediately following the month in which the Tenant makes the final debt service
payment, Tenant shall pay Landlord, on an annualized basis, eighteen (18) percent of the
gross revenue (less CAM) realized on the city owned retail space.
5. Parking and Ticket Revenue. CSM will retain a percentage of the parking
revenue as provided for in sub - paragraph 3 above, and the ticket revenue.
Included below is an example to better illustrate the revenues that may be generated
under this Settlement Proposal. Based on the financial projections prepared by Mr.
Oshikoya, below are the total revenues and obligations for year 2 (the first full year of
operation).
Page 3 of 6
YEAR 2
Retail Rent Payment $76,000.00
Gross Parking Revenue (60% usage) $33,262.50
Parking Ticket Revenue $153,000.00
TOTAL INCOME $2625262.50
(Before Debt Service and Operating Costs)
DEBT SERVICE $65,002.80
1.0 million 4.8%
28 years
Operating Costs $ 0
Lost Parking Lot and Ticket $195,000.00
Revenue Currently Generated
TOTAL $2609002.80
CSM would receive approximately $2,559.70 in additional revenue during the second year
(the first year of operation).
6. MRP. MRP's responsibility for repaying 100% of project financing (10.5
million less the City's initial contribution of $1,000,000) includes MRP's existing
obligation to pay the debt service on the $2.5 million dollars already advanced. MRP's
annual payment amortized over 30 years at 4.8% will equal $603,971.45.
MRP retail rental revenues should equal $584,000.00 in year 2. MRP's parking
revenues are estimated to equal $491,400.00. MRP advises that the retail and parking
garage maintenance and operating expenses are estimated to be $200,000 per year.
7. Transfer Fee. In the event the city approves a transfer of the lease, upon
MRP's transfer of its leasehold interest in the Project, MRP shall pay the city a transfer
fee. The transfer fee shall be calculated as follows: if the net profits resulting from the
transfer equal or are less than $1,400,000, the transfer fee paid to the city shall equal 18%
of the net profits realized from the transfer of the leasehold. If the net profit from the
transfer exceeds $1,400,000 the transfer fee shall be $252,000 plus 20% of the amount by
which the net profit exceeds $1,400,000. The net profits from the transfer of the leasehold
shall be determined under Generally Accepted Accounting Principles (GAAP).
8. Facility Design. The City Manager and MRP shall agree on the conceptual
design. The design may include an arcade and other design elements to attract pedestrian
Page 4 of 6
traffic. The retail space will feature restaurants to further promote pedestrian traffic and
garage usage. MRP is under no responsibility to incorporate any design element which
causes MRP's share of construction costs to exceed $ 7.5 million.
9. Term. The initial term of the Lease will be 50 years.
10. Financing. Additional financing will be required to complete the
construction of the facility and the City agrees to authorize up to an additional $2.5 million
over and above the $8.5 million in project financing approved by the commission.
11. Ownership of the Parking Structure. The City will own the parking
structure (including the air space over MRP's building).
12. Holiday Season Construction. MRP will use best efforts to minimize
impacts of construction during the holiday season.
13. Valet Parking. MRP shall apply for and obtain valet parking authorization
to operate two valet parking zones.
14. Repair and Maintenance. MRP shall repair and maintain the parking
structure.
15. Right to Transfer Leasehold. MRP or any Successor Tenant may sell,
assign or convey their leasehold interest if the City Commission is satisfied after its due
diligence that the proposed successor has the financial strength, experience, capability and
moral character to comply with the lease and the approval of the assignment is conducted
in accordance with the city charter.
16. Insurance. The insurance companies providing insurance coverage shall
have a best rating of B+ or equivalent. MRP shall at its sole cost maintain the following
coverage:
Commercial General Liability
Physical Property Damage Insurance
Builder's Risk
Two million per occurrence; Five million
in the Aggregate
100 % replacement cost
(during construction) - one hundred
percent (100 %) replacement value
17. Security. MRP shall provide the City with a payment and performance
bond with a good and sufficient surety, naming the City as an obligee and a commercially
acceptable form.
Page 5 of 6
18. Signage. Signage on the facility shall comply with the applicable codes of
the City and any other jurisdiction having authority.
19. Flat Rate Parking. MRP shall be authorized to charge a flat parking rate
from 5 p.m. to 2 a.m. MRP shall authorize an automated ticketing system to provide the
City with a reliable mechanism for confirming and auditing flat rate parking revenues.
20. Dismissal of Lawsuit. MRP shall dismiss his lawsuit against the City upon
the execution of the Lease Agreement and the issuance of the building permit.
21. Work Force: In an effort to enhance job opportunities for local citizens,
MRP agrees to give a preference to job applicants residing in South Miami. In order to
maximize the pool of applicants from South Miami, the MRP has agreed to send notices to
the Community Redevelopment Agency Director of the City of South Miami, or a
substitute designee by the City Manager, regarding employment opportunities related to
any (1) construction work on the Property, (2) temporary or permanent maintenance work
on the Property, or (3) proposals for leasing of retail space or employment opportunities
associated with retail space located on the Property. MRP has also agreed to impose
similar requirements in its agreements with subtenants.
22. Hours of Operation for Retail Establishments. MRP shall require all
retail subtenants (excluding restaurants) to remain open from until 9 A.M. until 8 P.M.
Page 6 of 6
LEASE AGREEMENT
Between
CITY OF SOUTH MIAMI, as Landlord
MARK RICHMAN PROPERTIES, INC., as Tenant
February , 2005
1.
2.
3.
4.
5.
C'1
7.
TABLE OF CONTENTS
Page
Recitals............................................................................ ............................... l
Definitions........................................................................ ..............................2
Lease of Premises and Parking Structure (" Tenancy") .... ..............................6
3.1 Lease of Tenancy .................................................. ..............................6
Term................................................................................ ..............................7
4.1 ' Original Term ....................................................... ..............................7
Rent, Receipts and Debt Service ..................... ..............................7
5.1 Base Rent .............................................................. ..............................7
5.2 Sharing of Receipts .............................................. ..............................7
5.3 Debt Service .......................................................... ..............................7
5.4 City Retail Space Rent .......................................... ..............................7
Payment........................................................................... ............................... 7
6.1 Payment of Rent .................................................... ..............................7
6.2 Delivery of Payments ............................................ ..............................7
6.3 Delinquency ......................................................... ............................... 7
Title; Delivery of Possession; Easements ....................... ............................... 8
7.1 Covenants of Title by Landlord ........................... ............................... 8
7.2 Covenants of Title by MRP .................................. ..............................8
Zoning, Development of Land and Pre - Construction Activity .....................8
8.1 Development Rights ............................................. ..............................8
8.1.1 Parking Structure ....................................... ..............................8
8.1.2 Premises. i ...... ......................................................................... 8
8.1.3 Replacement MRP Building ...................... ..............................8
8.2 Plans and Schedules .............................................. ..............................8
8.3 Cost ....................................................................... ..............................9
8.4 Conform with AIA and BOMA Method .............. ..............................9
8.5 Designation of Representatives ............................ ..............................9
-1-
8.5.1 Approve Documents .................................. ..............................9
8.5.2 Consent to Actions ...................................... ..............................9
8.5.3 Make Appointments ................................... ..............................9
8.5.4 Change of Representative .......................... ..............................9
9. Construction of Proj ect .................................................... ..............................9
9.1 Design Development .....................
9.1.1 Project Design ............................................ ..............................9
9.1.2 Project Costs ............................................. ..............................9
9.2
Performance ......................................................... .............................10
9.3
Performance and Payment Bond ................................... .............................10
9.4
Payment of Contractors and Suppliers .......................... .............................10
9.5
Completion of Construction ................................ .............................10
9.6
Project Amenities ................................................. .............................10
9.7
Holiday Season Construction .............................. .............................11
10. Project Financing ............................................................ .............................11
10.1 Borrowings ........................................................... .............................11
10.2 Initial Funding ...................................................... .............................11
11. Tax Treatment ................................................................ ..............................1 l
11.1 Tax Abatement ................................................... ............................... l l
12. Events of Default by Tenant ......................................... ............................... l 1
12.1 Failure to Pay ....................................................... .............................11
12.2 Failure to Perform ................................................ .............................12
12.3 Remedies for Default by Tenant .......................... .............................12
12.4 Events of Default by Landlord ............................ .............................12
12.4.1 Failure to Perform ..................................... .............................12
12.5 Remedies for Default by Landlord ...................... .............................13
12.6 No Remedy Exclusive ......................................... .............................13
13. Condemnation ................................................................. .............................13
13.1 Taking of Entire Premises .................................... .............................13
13.2 Payments of Fees and Costs ................................ .............................14
14. Use and Care ................................................................... .............................14
-ii-
14.1 Use ....................................................................... .............................14
14.2 Operating Standards ............................................. .............................14
14.3 Use Restrictions ................................................... .............................14
14.4 Applicable Law .................................................... .............................14
14.5 Environmental ...................................................... .............................14
14.6 Waste Disposal .................................................... .............................15
15. Repair and Maintenance ................................................. .............................15
15.1 Landlord's Responsibility .................................... .............................15
15.2 Tenant's Responsibilities ..................................... .............................15
16. Loss of Property .............................................................. .............................15
17. Renovation .................................. ............................... .. .............................15
17.1 Tenant's Rights .................................................... .............................15
18. Access to Premises .......................................................... .............................15
19. Operation and Management of Improvements ............... .............................15
19.1 Non - Interference .................................................. .............................15
19.2 Indemnification .................................................... .............................16
19.3 Operation of Parking Structure ......................... .............................16
19.4 Records and Reporting ......................................... .............................17
19.4.1 Books and Records ................................... .............................17
19.4.2 Reporting ................................................ .............................17
19.4.3 Compliance with GAAP ........................... .............................17
19.4.4 Right of Inspection....... .............................. .............................17
19.4.5 Tenant's Financial Statements .................. .............................18
19.5 Security and Enforcement of Parking Violations .............................18
20. Valet Parking ................................................................. .............................18
21. Surrender of Premise ...............................:....................... .............................18
22. Sale of Leasehold, Subletting, Landlord's Assignment .. ........................:....18
22.1 Right to Transfer Leasehold ................................ .............................18
22. 1.1 Right of First Refusal ................................ .............................19
- iii -
22.1.2 Transfer Fee .............................................. .............................19
22.1.3 Rights to Sublease ..................................... .............................19
22.2 Landlord Assignment ........................................... .............................19
22.3 Compliance with City Charter ............................. .............................20
23. Insurance ..................................................._..................... .............................20
23.1 Acquisition of Insurance Policies ........................ .............................20
23.2 Types of Required Insurance ......:........................ .............................20
23.2.1 Commercial General Liability Insurance .. .............................20
23.2.2 Physical Property Damage Insurance ....... .............................21
23.2.3 Business Interruption ......................................... .............................21
23.2.4 Builder's Risk Insurance .................................... .............................21
23.3 Terms of Insurance .............................................. .............................21
23.4 Landlord's Acquisition of Insurance ................................................ 21
23.5 Insurance Money and Other Funds Held in Trust ............................21
23.6 Waiver of Subrogation ....... ............................... .............................22
24. Relation of the Parties ..................................................... .............................22
25. Acts of God; Unavoidable Delays .................................. .............................22
25.1 Acts of God .......................................................... .............................22
26. Landlord's Covenant of Quiet Enjoyment ...................... .............................22
27. Brokerage ........................................................................ .............................23
28. Time of Essence . ............................... .......................... .............................23
29. Notices ........................ ............................... ................... .............................23
30. Compliance with Laws and Ordinances ......................... .............................24
30.1 Compliance .......................................................... .............................24
30.2 Contest by Tenant ................................................ .............................24
31. Representations and Warranties ...................................... .............................24
3 1. 1 Landlord's Representations ................................. .............................24
31.1.1 Free of Violations ..................................... .............................24
31.1.2 No Actions Affecting Use ........................ .............................24
-iv-
31.2 Landlord's Warranties ......................................... .............................24
31.2.1 Authority to Bind ...................................... .............................25
31.2.2 Free of Tenancies ...................................... .............................25
31.3 Tenant's Representations and Warranties ........... .............................25
31.3.1 Tenant's Representations .......................... .............................25
31.3.1.1 Free of Violations ............... .............................25
31.3.1.2 No Actions Affecting Use .. .............................25
31.3.2 Authority to Bind ...................................... .............................25
32. Exculpation ..................................................................... .............................25
33. Prior to Construction ....................................................... .............................25
34. Destruction After Construction ....................................... .............................26
35. General Provisions ........................................................ ............................... 26
35.1
Severability .......................................................... .............................26
35.2
No Waiver ............................................................ .............................26
35.3
Entire Agreement ............................................... ............................... 26
35.4
Successors and Assigns ....................................... .............................26
35.5
Modification and Rescission ................................ .............................26
35.6
Governing Law .................................................... .............................26
35.7
Interpretation ...........................I ..........................
26
...............................
35.8
Radon Disclosure ................................................. .............................27
35.9
No Discrimination ................................................ .............................27
35.10
Work Force .......................................................... .............................27
35.11
Attorneys' Fees .................................................... .............................27
35.12
Reasonableness of Approvals .............................. .............................27
35.13
Duplicate Originals .............................................. .............................28
35.14
Project Name ..............................:......................... .............................28
35.15
Superseding Effect ............................................... .............................28
35.16
Hours of Operation for Retail Establishments ..... .............................28
EXHIBIT A - Legal Description of City Land .................................... .............................32
EXHIBIT B - Legal Description of MRP Land ................................... .............................33
EXHIBIT C - Title Exceptions for City Land ...................................... .............................34
-v-
EXHIBIT D - MRP Note and Payment Schedule for MRP Note ........ .............................35
EXHIBIT E - Mark Richman Guaranty .... ............................... ........... .............................36
EXHIBITF - Title Exception MRP Land ............................................. .............................37
EXHIBIT G - Project Schedule ............................................................ .............................38
EXHIBIT H - Settlement Agreement ................................................... .............................39
SCHEDULE I —Hours of Operation ..................................................... .............................40
SCHEDULE II Parking Rates ........................................................... .............................41
-vi -
LEASE AGREEMENT
This Lease is made by and between the City of South Miami, a municipality of
Miami -Dade County, Florida (hereinafter "Landlord ") and Mark Richman Properties, Inc.,
a Florida corporation (hereinafter "Tenant ") on the following terms and conditions
( "Agreement "):
RECITALS
A. Landlord owns certain Land (as hereinafter defined) located in the City of South
Miami, Miami -Dade County, Florida which is presently used as a public parking
lot;
B. On August 15, 2000, the City Commission approved a lease agreement with 'SPG
Phase One, Ltd., for the design, construction, and management of the Parking
Structure (as hereinafter defined) which included mixed -use retail and office space;
C. The lease between Landlord and SPG ( "SPG Lease ") was executed on February 21,
2001.
D. In order to enhance the functionality of the Parking Structure, SPG proposed to
build a portion of the Parking Structure in the Airspace (as hereinafter defined)
above land owned by Tenant, which is contiguous to the City's parking lot ( "MRP
Land ").
E. The SPG Lease approved by the City Commission contains a provision authorizing
the assumption of the SPG Lease and transfer of the development and management
rights to Tenant.
F. Tenant assumed the SPG Lease and acquired from SPG via assignment the rights to
develop the Parking Structure.
G. On November 1, 2001, the City Commission approved a lease agreement with
Tenant, for Landlord's retail space and for the design and construction of the
Parking Structure;
H. The lease between Landlord and Tenant ( "MRP Lease ") was executed on March 5,
2002.
L Pursuant to the NW Lease Tenant deeded certain air rights over the MRP Land to
Landlord and Landlord made a loan to Tenant in the original principal amount of
-1-
two million five hundred thousand dollars and no cents ($2,500,000.00) secured by
a first mortgage on Tenant's property.
J. This Agreement will become effective as of the day that a building permit is issued
for the Parking Structure Project ( "Project ") and once effective, replaces the MRP
Lease. This Agreement incorporates the Settlement Agreement by and Between
the City of South Miami, a Florida Municipality, and Mark Richman Properties,
Inc. dated February , 2005 ( "Settlement Agreement ") attached hereto and
made a part hereof as Exhibit "H ".
K. Landlord and Tenant agree to co- develop the Project. The Project will be five
stories with approximately 380 spaces and 24,500 (+ or -) square feet of retail,
including the Replacement MRP building (hereinafter defined).
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the parties hereto agree as follows:
1. Recitals. The recitals are true and correct, and form a part of this
Agreement.
2. Definitions. The terms provided herein shall be defined for purposes of this
Lease as follows:
2.1 "Additional Funds" means (i) those funds in excess of 8.5 million
dollars previously approved by the City Commission which are necessary to complete the
construction of the Project and which do not exceed 2.5 million dollars in additional
project financing.
2.2 "Additional Rent" means rent due to Landlord based on a fixed
percentage of gross parking receipts pursuant to subparagraph 5.2.
2.3 "Affiliate" means (i) any person who, directly or indirectly or through
one or more intermediaries, controls, is controlled by, or is under common control with
another person or entity or (ii) any person who owns, directly or indirectly, 50% or more
of the value of the outstanding shares or other equity interests of another person.
2.4 "Airspace" means that certain volume of air over the MRP Land in
which a portion of the Parking Structure will be built.
2.5 "Base Rent" means the rent due from Tenant to Landlord pursuant to
subparagraph 5.1.
2.6 `Borrowing" means the monies borrowed by the Landlord as
provided in subparagraph 10.1.
-2-
Florida.
2.7 "Charter" means the municipal charter of the City of South Miami,
2.8 "City" means the City of South Miami, Florida.
2.9 "Commencement of Construction" means the day the Notice of
Commencement is put of record.
2.10 "Common Areas" means those areas of the Project which are open
for the use by tenants and guests or by the public, including but not limited to any
sidewalks, public receiving, loading and delivery areas, public lobbies, public exits and
entrances, hallways, elevators, stairways, and restrooms.
2.11 Completion Date" means the date Completion of Construction as
provided in subparagraph 9.3.
2.12 "Completion of Construction" means the earlier of the date upon
which the Parking Structure is issued a certificate of occupancy or the date upon which the
Parking Structure is issued a temporary certificate of occupancy.
2.13 "Construction Period" means the period commencing with the Permit
Date and ending on the Completion of Construction.
2.14 "Declaration" means the Declaration of Easements Covenants and
Restrictions executed by Landlord and Tenant that will be filed in the public records of
Miami -Dade County, Florida, relating to the Project.
2.15 "Default Rate" means eighteen percent (18 %) p.a. for purposes of
subparagraph 12.1.
2.16 "Development Code" means the City of South Miami Land
Development Code as in effect on the Effective Date hereof and as amended from time to
time.
2.17 "Development Rights" means the rights granted to Tenant for the
development of the Project pursuant to the terms of this Lease as more particularly
described in subparagraph 8.1.
2.18 "Effective Date" means the date this Lease is to be fully binding upon
the parties as stated in Paragraph I hereof.
2.19 Gross Receivables means the aggregate of all rents and payments
(including base rents and percentage rents) excluding standard cost of maintenance,
insurance and ad valorem tax payments received by Tenant.
-3-
2.20 "Land" mean that certain municipal parking lot located at S.W. 73rd
Street, S.W. 58th Avenue, and S.W. 58th Court, in the City of South Miami, Florida as
more particularly described according to its legal descriptions as set forth on Exhibit "A ",
attached hereto, including all rights and interests appurtenant thereto.
2.21 "Landlord" means the City of South Miami, Florida, a municipality
located in Miami -Dade County, Florida.
2.22 "Lease Commencement Date" means the date of issuance of a C.O.
or T.C.O for the retail portions of the Project, which includes the Premises. Landlord and
Tenant shall establish the Lease Commencement Date pursuant to a written instrument
executed by both parties immediately after the Lease Commencement Date.
2.23 "Lease Year" means the consecutive twelve calendar month period
commencing on the Lease Commencement Date and each such consecutive twelve
calendar month period thereafter during the Lease Term; provided, however, that if the
Lease Commencement Date is not the first day of the calendar month, Lease Year shall
mean the consecutive twelve calendar month period commencing on the first day of the
calendar month immediately following the Lease Commencement Date and each such
consecutive twelve calendar month period thereafter during the Lease Term.
2.24 "Lease Term" means the period consisting of 50 consecutive Lease
Years commencing on the Lease Commencement Date.
2.25 "MRP" means Mark Richman Properties, Inc., a Florida corporation,
or any successor thereto.
2.26 "MRP Land" means that certain improved lot at the corner of S.W.
73 Street and S.W. 58th Court owned by MRP, upon which is situated the Old MRP
Building and which is more particularly described according to its legal description as set
forth on Exhibit "B" attached hereto.
2.27 "MRP Notes" shall mean MRP's obligation to pay the principal of,
and interest on, all loans made by the City evidenced by promissory notes duly executed
and delivered by MRP substantially in the form of Exhibit D with blanks appropriately
completed in conformity with this agreement (each an "MRP Note" and collectively the
"MRP Notes ").
2.28 "Replacement MRP Building" means the shell of a new one -story
structure to be built as a replacement for the Old MRP Building and over which the
Airspace will be occupied by a portion of the Parking Structure. The Replacement MRP
Building shall contain approximately 8,600 square feet of retail. The Replacement MRP
Building shall not include any portion of the Parking Structure.
2.29 "Old MRP Building" means the existing one -story building located
on the MRP Land, which is to be demolished and replaced with the Replacement MRP
Building.
2.30 "Parking Structure" means that portion of the Project, which excludes
the Replacement MRP Building, the MRP Land and the Premises (hereinafter defined). A
portion of the Parking Structure is located within the Airspace.
2.31 "Permits" means all final, unappealed and unappealable building
permits and other permits, licenses, permissions, consents, and approvals required to be
obtained from the (i) City of South Miami, (ii) Miami -Dade County, (iii) the State of
Florida, (iv) the United States, (v) any agency or political subdivision of any of the
foregoing having jurisdiction over the Project or any portion thereof, or (vi) any
agreements, waivers, or consents of any third - parties relating to or affected by the Project,
all of which are required to allow the construction of the Project and any subsequent
improvements, repairs, replacements or renewals in accordance with the Development
Code and all other applicable laws, ordinances, or regulations.
2.32 "Permit Date" means the date all Permits are issued on a non -
appealable basis, which allows the construction of the Project to proceed.
2.33 "Plans" means the plans, drawings, and specifications referenced in
subparagraph 8.2.
2.34 "Premises" means that portion of the Land, which will be improved
with approximately 15,900 square feet of retail space.
2.35 "Project" means the Parking Structure, the Replacement MRP
Building, the Premises and the Land and MRP Land, together with all other rights and
interests appurtenant thereto.
2.36 "Project Schedule" means the schedule developed and approved by
MRP and the City indicating the dates for significant events and timetables for
completion.
2.37 "Rent" means Base Rent and Additional Rent.
2.38 "Resolution" means the approval of the Lease Agreement with.SPG
effective February 21, 2001, Resolution No.: 7 -01 -1738.
2.39 "Sales Tax" means all Florida state, county, and/or municipal sales,
use, or similar taxes, and all local option surtaxes assessed upon or in relation to Rent due
and payable to Landlord by Tenant hereunder.
-5-
2.40 "Settlement Agreement" means the agreement between the City and
Mark Richman Properties that establishes the terms and conditions for the disposition of
Mark Richman Properties, Inc. v. City of South Miami, Case No. 03- 07058 -CA -24 (Fla.
1 lt' Cir. Ct. 2003) and which is incorporated into this Agreement under Exhibit "H ".
2.41 "SPG" means SPG Phase One, Ltd. A Florida limited partnership.
2.42 "Subtenant' ' means a person or firm who leases space in the Premises
or leases one or more parking spaces from Tenant.
2.43 "Successor Tenant" means a person to whom Tenant's interest in the
Lease is transferred as more particularly described in Section 22.1.
2.44 "Transfer" shall mean the transfer by Tenant of Tenant's leasehold
interest or the transfer of any property right or obligations specifically reserved to the
Tenant under the Lease, including but not limited to the right to enter into sublease
agreements, collect rents, profits, benefits, condemnation awards, insurance proceeds and
moneys and security under the Lease.
2.45 "Taking" means the acquisition of all or a portion of the Premises by
any federal, state, county or municipal sovereign or their proper delegates, by
condemnation proceeding by the power of eminent domain.
2.46 "Tenant" meats MRP and any successor thereto as a result of merger,
consolidation, or other reorganization provided that one of the current principals of MRP
maintain controlling interest in the new entity; and any successor created as the result of
the death of one of the principals.
2.47 "Unavoidable Delay" means delays due to strikes, Act of God,
floods, fires any act, negligence or failure to perform of the Landlord, or any employee or
agent of Landlord, unusual delay in obtaining labor or materials, inability to obtain, in
accordance with this Lease, zoning, special exceptions, variances, site . plan approval,
building and other permits, certificates of occupancy or other approvals, governmental
restrictions, enemy action, terrorism, civil commotion, casualty, sabotage, restraint by
court or public authority, moratoriums, the development of the Project being defined to
be a development of regional impact.
3. Lease of Premises and Parking Structure ( "Tenancy ")
3.1 Lease of Tenancy. Subject to the terms, conditions, covenants, and
other provisions provided hereinafter, Landlord does hereby lease, let, and demise unto
Tenant and Tenant does hereby lease, hire, and take from Landlord the Tenancy to have,
hold, and use for the entire Lease Term.
4. Term.
4.1 Original Term. The original Lease Term shall be fifty years starting
on the Lease Commencement Date (or, if the Lease Commencement Date is not the first
day of the month, the first day of the calendar month following the Lease Commencement
Date) unless modified, extended, or sooner terminated as provided hereinafter.
5. Rent, Receipts and Debt Service.
5.1. Parking Structure Base Rent. Commencing with the first Lease Year
and for each Lease Year thereafter during the Lease Term, Tenant shall pay Landlord a
monthly payment of $6,333.00.
5.2 Parking Structure Sharing of Receipts. Tenant shall pay Landlord on
an annualized basis, twelve and one -half percent (12.5 %) of all gross parking receipts in
excess of $150,000 realized each year.
5.3 Debt Service. Tenant shall pay the debt service on the loans for the
Project costs described in 9.1.2 (c) below.
5.4 City Retail Space Rent. City retail space rent shall be one (1) dollar
per year until the completion of debt service. Commencing on the first day of the month
immediately following the month in which the Tenant makes the final debt service
payment, Tenant shall pay Landlord, on an annualized basis, eighteen percent (18 %) of
the Gross Receivables realized on the city owned retail space.
6. Payment.
6.1 Payment of Rents and Notes. Tenant shall pay the Landlord Base
Rent as follows: (1) $6,333.00 shall be paid on a monthly basis; and (ii) the payments due
under the MRP Notes for payment by Landlord under the Borrowings shall be tendered,
no later than five (5) days before the due date.
6.2 Delivery of Payments. Payments shall be by check made payable to
"City of South Miami" and, unless instructed otherwise in writing by Landlord, delivered
to:
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Attn: City Manager
6.3 Delinquency. The Base Rent is delinquent if not received by
Landlord by the fifth (5th ) day of each month. The payment for the Borrowings is
delinquent if not received by Landlord five (5) days before the respective due date for loan
-7-
repayment for the Borrowings. Landlord may assess Tenant a charge of 18% per annum
on a pro rated basis until such amount is paid in full. If either payment remains delinquent
for thirty (30) days after the date which such payment is otherwise due, Landlord shall
provide written notice to Tenant, if the payment is not received within ten days after
Tenant's receipt of this notice, an Event of Default shall have occurred, and Landlord may
proceed to exercise all of its rights.
7. Title; Delivery of Possession; Easements.
7.1 Covenants of Title by Landlord. Landlord represents and warrants
that, as of the day of execution of this Agreement and as of the Effective Date, Landlord is
the owner of the Land and that the Land is free from all liens, encumbrances, restrictions,
covenants, and defects in title other than those set forth in Exhibit "C" which is attached
hereto and made a part hereof. Landlord further represents that there are no restrictions,
which will delay, interfere with, or prohibit Landlord entering into this Lease and the
construction of the Project as provided herein.
7.2. Covenants of Title by MRP. MRP represents and warrants that, as of
the date of execution of this agreement and as of the Effective Date, MRP is the owner of
the MRP Land and that the MRP Land is free from all liens, encumbrances, restrictions,
covenants, and defects in title other than those set forth in Exhibit "F" which is attached
hereto and made a part hereof.
8. Zoning, Development of Land and Pre - Construction Activity.
8.1 Development Rights. Landlord hereby approves the Development
Rights of the Land (and accordingly the construction of all improvements required in
connection with such development) to the densities and uses described in subparagraph
8.1.1 and 8.1.2 below:
8. 1.1 Parking Structure. A five level building containing
approximately 380 parking spaces to be built on the Land and in the Airspace.
8.1.2 Premises. Approximately 15,900 square feet of ground floor
retail space.
8.1.3 Replacement NW Building. A one -story building with
approximately 8,600 square feet of retail space to be built on the NW Land.
8.2 Plans and Schedules. Tenant shall diligently pursue the preparation
of plans, drawings, and specifications (collectively, "Plans ") necessary for the
construction of the Project. Landlord shall fully cooperate to facilitate the preparation of
the Plans and submittal thereof to obtain the Permits to allow the construction of the
Project to begin in accordance with the Project schedule.
ItIE
8.3 Cost. Tenant shall be responsible for the construction of the Project
( "the Cost ") within the building footprint and profile for an amount not to exceed $ 7.5
million dollars.
8.4 Conform with AIA and BOMA Method. The Landlord shall have the
right but not the obligation to oversee the construction of the project to ensure that it is
being constructed in accordance with The Florida Building Code as applicable in Miami -
Dade County as well as retaining all rights it has a city regarding construction within City
boundaries. Design development and schematic drawings shall conform with the scope of
work for such drawings as established by the standards of the American Institute of
Architects and all area computations shall be made in accordance with the BOMA
Method.
8.5 Designation of Representatives. Landlord and Tenant each agree to
designate, in writing, a person or persons who shall have the power, authority and right,
on behalf of each Party, hereunder, to:
8.5.1 Approve Documents. Review and approve all documents,
plans, applications, and requests.
8.5.2 Consent to Actions. Consent to all actions, events, and
undertakings for which consent is required; and
8.5.3 Make Appointments. Make all appointments of persons,
appraisers, arbitrators or other individuals or entities required to be appointed or
designated by the Parties in this Lease.
8.5.4 Change of Representative. Either may change such designee
at any time upon prior written notice. At this time Landlord designates the City Manager
and Tenant designates Mark Richman.
9. Construction of Project.
9.1 Design Development
9.1.1. Project Design. Landlord and Tenant will work cooperatively
to complete the design for the Parking Structure. The parties agree to retain
Arquitectonica to complete the project design work.
9.1.2. Project Costs. The Project Costs are those costs and categories
of costs on Schedule of Project Costs attached hereto and made a part hereof as Exhibit
"G" ("Schedule"):
(a) The Landlord will pay $1,000,000.00 of the Project Costs;
ILM
(b) Tenant will pay those Project Costs identified on the Schedule
as Retail Tenant Improvements;
(c) The remaining Project Costs shall be allocated to the
Replacement MRP Building, the Premises and the Parking Structure based on the gross
area occupied by each of them. These Project Costs shall be paid by the Tenant according
to the terms of the NW Notes; and
(d) Tenant shall be responsible for actual fees associated with
obtaining Additional Funds.
9.2 Performance. After Commencement of Construction, the Tenant
shall diligently pursue the construction of the Project in accordance with the Project
schedule, which will be attached and incorporated as Exhibit "G ".
9.3 Performance and Payment Bond. Prior to commencement of
construction, Tenant shall deliver to City an acceptable, Performance and Payment Bond
issued in form and by such surety as approved by the City, for the full cost of all of the
services and construction required by the Plans.
9.4 Payment of Contractors and Suppliers. Tenant shall make, or cause
to be made, prompt payment of all monies due and legally owing to all persons doing any
work or furnishing any material, fuel, machinery or supplies to Tenant or any of their
contractors or sub - contractors in connection with the construction of the Project after
Tenant's draws are funded as described in paragraph 10. 1, herein. Tenant shall require lien
waivers from contractors and sub - contractors in order to comply with the construction lien
laws of the State of Florida and as required to obtain and deliver title insurance
endorsement(s) insuring over such claims.
9.5 Completion of Construction. "Completion of Construction" means
the earlier of the date upon which the Parking Structure and shell of Replacement MRP
Building and shell of Premises is issued a certificate of occupancy or the date upon which
the Parking Structure is issued a temporary certificate of occupancy. ( "Completion of
Construction ")
9.6 Project Amenities. The Parties agree to expend not less than one and
one -half percent (1.5 %) of the cumulative hard construction costs in connection with the
construction of the Project for acquisition or construction of amenities for the public areas
of the Project. The term "amenities" as utilized in the preceding sentence shall include,
but not be limited to, landscaping, plazas, awnings, decorative features, fountains, tile,
arcades, courtyards, terraces, walkways, roof gardens, passive and active recreational
areas, murals, special graphic presentations, entertainment areas, gazebos, arcades, water
features and facilities, and works of art.
-10-
9.7 Holiday Season Construction. Tenant will use its best efforts to
minimize construction related impacts on the surrounding community during the holiday
season from November 1 through January 2.
10. Project Financing.
10.1 Borrowings. The Landlord will make available pursuant to an
agreed draw -down schedule, the funds already borrowed and the funds already authorized
for the Project and use reasonable best efforts to borrow the Additional Funds required to
develop the Project from the Florida League of Cities and its underwriters ( "collectively
referred to as the Borrowings "). By entering into this Agreement, Tenant agrees to pay
the principal of, and interest on, all loans that comprise the Borrowings, except the
$1,000,000.00 which is the obligation of the Landlord, and this obligation of Tenant shall
be evidenced by the MRP Notes duly executed and delivered to the Landlord substantially
in the form of Exhibit "D ".
10.2 Initial Funding. The Landlord has funded certain initial Project
Costs totaling $337,116.37 and identified on the Schedule.
11. Tax Treatment.
11.1. Tax Abatement. During the lease term, the Landlord agrees to abate
its share of ad valorem taxes assessed against the Project, excluding the Replacement
MRP Building.
12. Events of Default by Tenant. The following events are hereby defined as
"Events of Default" by Tenant:
12.1 Failure to Pay. Failure of Tenant to pay any Rent, debt service on the
Borrowings, or any other payments of money as herein provided or required when due
shall constitute a monetary default of Tenant hereunder. In the event that any Rent, debt
service on the Borrowings, or other payment of money is not paid to Landlord within ten
(10) days of the date the same becomes due and payable, Landlord shall give Tenant
written notice and a 10 -day period from receipt of such notice to pay same. If Tenant fails
to pay the amount due to Landlord, together with all interest due thereon within such 10
day period, then Landlord will be entitled to proceed to exercise any and all remedies
provided herein for an Event of Default including but not limited to termination of this
Agreement and institution of foreclosure proceedings against the Replacement MRP
Building and MRP Land as set forth in subparagraph 12.3 below. Tenant covenants and
agrees to pay to Landlord interest on the amount thereof from the date such payment or
installment became due and payable to the date of payment thereof, at the Default Rate.
Until Landlord has provided Tenant with written notice pursuant to this subparagraph 12.1
and the time period for cure set forth in this Lease has elapsed without such cure having
been effected, the failure of Tenant to perform or comply with the monetary covenants of
this Lease shall not be deemed an Event of Default.
- 11 -
12.2 Failure to Perform. Failure of Tenant to perform in accordance with
or to comply with any of the covenants, conditions and agreements which are to be
performed or complied with by Tenant in this Lease other than those requiring payment of
money as provided in subparagraph 12.1 above, and the continuance of such failure for a
period of 30 days after notice thereof in writing from Landlord to Tenant (which notice
shall specify the respects in which Landlord contends that Tenant has failed to perform
any such covenants, conditions and agreements), shall constitute an Event of Default;
provided, however, if such default cannot with reasonable diligence be cured within 30
days and Tenant within such 30 -day period shall have commenced and thereafter shall
have continued diligently to prosecute all actions necessary to cure such default, then
Tenant shall have such additional time as Tenant requires while and so long as Tenant
continues to diligently prosecute all reasonable actions necessary to cure such default,
provided further that if such default shall be due to Tenant's abandonment of the Premises
after the Commencement of Construction, then and in such event the additional time
within which to cure such abandonment shall not exceed 30 days. Until Landlord has
provided Tenant with written notice pursuant to this subparagraph 12.2 and the time
periods for cure set forth in this Lease have elapsed without such cure having been
effected, the failure of Tenant to perform or comply with the non - monetary covenants,
conditions and agreements of this Lease shall not be deemed an Event of Default.
12.3 Remedies for Default by Tenant. If any of the Events of Default by
Tenant shall occur, Landlord may, at its option, institute such proceedings as are
reasonably necessary to cure such defaults or to compensate Landlord for damages
resulting from such defaults, including but not limited to, the right to give to Tenant a
notice of termination of this Lease. If such notice is given the term of this Lease shall
terminate, upon the date specified in such notice from Landlord to Tenant, as fully and
completely as if that date were the date herein originally fixed for the expiration of the
term of this Lease, and on the date so specified, Tenant shall then quit and peaceably
surrender to Landlord the Premises. Upon the termination of this Lease, as provided in this
subparagraph 12.3 all rights and interest of Tenant in and to the Premises hereunder shall
cease and terminate and Landlord may, in addition exercise its right against the MRP
Land and the Mark Richman guarantee, retain all sums paid to it by Tenant under this
Lease and /or exercise any and all rights and remedies, whether in law or in equity, that
Landlord has against Tenant.
12.4 Events of Default by Landlord. The following events are hereby
defined as "Events of Default" by Landlord:
12.4.1 Failure to Perform. Failure of Landlord to perform in
accordance with or to comply with any of the other covenants, conditions and agreements
which are to be performed or complied with by Landlord in this Lease, and the
continuance of such failure for a period of 30 days after notice thereof in writing from
Tenant to Landlord (which notice shall specify the respects in which Tenant contends that
Landlord has failed to perform any such covenants, conditions and agreements), shall
-12-
constitute an Event of Default; provided, however, if such default cannot with reasonable
diligence be cured within 30 days and Landlord within said 30 day period shall have
commenced and thereafter shall have continued diligently to prosecute all actions
necessary to cure such default then Landlord shall have such additional time as Landlord
requires while and so long as Landlord continues to diligently prosecute all reasonable
actions necessary to cure such default. Until Tenant has provided Landlord with written
notice pursuant to this subparagraph 12.4.1 and the time periods for cure set forth in this
Lease have elapsed without such cure having been effected, the failure of Landlord to
perform or comply with the covenants, conditions and agreements of this Lease shall not
be deemed an Event of Default.
12.5 Remedies for Default by Landlord. If any of the Events of Default by
Landlord shall occur, Tenant may, at its option, institute such proceedings as are
reasonably necessary to cure such defaults or to compensate Tenant for damages resulting
from such defaults.
12.6 No Remedy Exclusive. No remedy conferred upon or reserved to any
party hereto, or existing at law or in equity, shall be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Agreement or hereafter existing at law or
in equity or by statute. No delay or omission to exercise any right or power accruing upon
any default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time as often as may
be deemed expedient. In order to entitle any party to exercise any remedy reserved to it in
this Agreement, or existing in law or in equity, it shall not be necessary to give notice,
other than such notice as maybe herein expressly required.
13. Condemnation.
13.1 Taking of Entire Premises. If at any time during the term of this
Lease the power of eminent domain shall be exercised by any federal, state, county or
municipal sovereign or their proper delegates, by condemnation proceeding (a "Taking ")
to acquire the entire Parking Structure, such Taking shall be deemed to have caused this
Lease to Terminate and expire on the date of such Taking. Tenant shall have the right to
recover from the award for a Taking, as hereinafter provided, an amount equal to the fair
market value of the improvements comprising the Premises and for the value of the Lease.
Tenant shall first apply any amounts received against its share of the MRP Note. In no
event shall Tenant be entitled to compensation for any ownership interest in the Land. For
the purpose of this Paragraph 13, the date of 'faking shall be deemed to be either the date
on which actual possession of the Parking Structure or a portion thereof, as the case may
be, is acquired by any lawful power or authority or the date on which title vests therein,
whichever is earlier. All Rents and other payments required to be paid by Tenant under
this Lease shall be paid and Tenant shall keep, observe and perform all the terms of this
Lease up to the date of such Taking.
-13-
13.2 Payment of Fees and Costs. All fees and costs incurred in connection
with any condemnation proceeding described in this Paragraph 13 shall be paid in
accordance with the law governing same, as determined by the court or by arbitration, if
appropriate.
14. Use and Care.
14.1 Use. Tenant shall use the Premises for retail use and the Parking
Structure for parking use. Tenant shall not use or permit the use of the Premises for any
purpose except as permitted herein unless Landlord gives its advance written consent.
Tenant shall be permitted to use the sidewalks adjacent to the Premises and the Parking
Structure or any other area outside the Project for outdoor seating or dining uses or the
solicitation of business to the extent permitted by applicable municipal, county, state or
federal codes and regulations provided that the appropriate permit applications and fees
are submitted.
14.2 Operating Standards. Tenant shall (i) maintain the Premises in a
clean, orderly and sanitary condition; (ii) not permit undue accumulation of garbage, trash,
rubbish or other refuse; (iii) keep such refuse in proper containers until normal pickup in
accordance with section 14.6; and (iv) maintain and repair the premises and make all
necessary repairs thereto.
14.3 Use Restrictions. Tenant shall not commit waste, perform acts or
carry on any practices which are or may be a nuisance or injurious to other tenants or
visitors of the Project.
14.4 Applicable Law. At all times, Tenant and Landlord shall fully and
promptly comply with all laws, local ordinances, orders and regulations of any lawful
authority having jurisdiction over the Premises and Parking Structure, respectively,
including without limitation, those relating to the environment, cleanliness, safety,
occupation, and use of the Premises and Parking Structure. Notwithstanding the
preceding sentence, Tenant shall not be obligated to perform, or be responsible for the cost
of, any alterations or modifications of the Parking Structure necessary for it to comply
with any future local, state, and/or federal laws.
14.5 Environmental. Tenant and Landlord shall not cause or permit any
Hazardous Material to be brought upon, kept or used in or about the Premises or Parking
Structure, respectively, by Tenant and Landlord, their agents, employees, contractors or
invitees, other than such Hazardous Materials as may be necessary or useful to Tenant's
business and will be used, kept and stored in a manner that complies with all laws
regulating any such Hazardous Material so brought upon or used or kept in or about the
Parking Structure. As used in this Lease, the term "Hazardous Material" means any
hazardous or toxic substance, material or waste which is or becomes regulated by any
local governmental authority, the State of Florida, or the United States.
-14-
14.6 Waste Disposal. Solid waste generated by the Tenant or found
throughout the Premises shall be transported to trash chutes, dumpsters, or recycling bins.
The Tenant shall securely close all dumpsters after use so as to minimize openings that
allow access by rodents.
14.6.1.1 The Tenant shall remove all combustible rags and /or waste
from the immediate work site at the end of each work shift. Work areas shall be left neat
and orderly and shall not present a hazard.
14.6.1.2 The Tenant shall not use any drain, pipe, or plumbing
fixture for the disposal of any waste materials unless it complies with applicable laws.
14.6.1.3 The Tenant shall be responsible for the proper removal and
disposition of all surplus oil or hazardous materials (e.g., paints, lubricants, cleaning
products) brought onto the Premises.
15. Repair and Maintenance.
15.1 Landlord's Responsibility. During the Lease Term, Landlord shall
have no responsibility to maintain the Premises.
15.2 Tenant's Responsibilities. During the Lease Term, Tenant shall
repair and maintain the Premises with the exception of structural repairs.
16. Loss of Property. Landlord shall not be liable for any loss of any property
of Tenant's from the Premises or for any damages to any property of Tenant, unless due to
the willful misconduct or gross negligence of Landlord or any of its employees, agents, or
contractors.
17. Renovation.
17.1 Tenant's Rights. Tenant shall have the right at its discretion to
remodel or modify the interior of the Premises and, with Landlord's prior written approval
not unreasonably withheld, at any time and from time to time during the term of this Lease
or any renewal thereof, at its sole cost and expense, to modify and remodel the exterior of
the Premises.
18. Access to Premises. Landlord, its agents and representatives shall have
reasonable access to the Premises during sub - tenant operating hours.
19. Operation and Management of Improvements.
19.1 Non - Interference. Landlord and Tenant hereby mutually agree not to
interfere with the free flow of pedestrian or vehicular traffic to and from the Parking
Structure, the Premises, the Replacement MRP Building and the surrounding area.
=11
19.2 Indemnification. Tenant and Landlord hereby agree to indemnify and
hold each other harmless from and against any liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable attorney's fees, to the extent that
such charges are not paid out of any policies of insurance, which may be imposed upon,
incurred by, or asserted against the indemnified party by reason of any act, omission or
negligence on the part of the indemnifying party or its agents, contractors, servants,
employees, licensees, invitees, partners, joint venturers or third parties, arising out of or
occurring on the Project during the term of this Lease. This subparagraph 19.2 shall not
apply to any loss, damages or charges caused by the indemnified parry, its employees or
agents. This subparagraph 19.2 shall survive the termination of the Lease.
19.3 Operation of Parking Structure.
19.3.1 The Parking Structure, with the exception of the fifth level,
shall be exclusively used for public parking and will be available to the general public
(during the hours of operation) subject to the Landlord's right to designate special usage
from time to time and the terms of this agreement.
19.3.2 The Parking Structure will be operated in a manner
consistent with that of privately managed municipal garages. Accordingly, Tenant will
staff the operation with good, experienced, professional management.
19.3.3 The Parking Structure shall be open for parking as directed
by owner. The hours of operation are attached and incorporated under Schedule 1.
19.3.4 The Parking Structure will be maintained in a neat and
clean condition and will comply with all city, state and federal laws, rules or regulations.
19.3.5 The Landlord shall establish the parking meter rates and the
minimum flat parking rates. The minimum rates for flat rate parking are attached under
Schedule II. Tenant may increase the minimum'' flat parking rates by as much as fifty
percent (50 %) in any calendar year without Landlord's approval. Any proposed increase
to the flat rate parking that exceeds fifty percent (50 %) of the existing rate shall require
Landlord's approval, which shall not be unreasonably denied. Under no circumstances
shall Tenant change the minimum parking meter rates or decrease the minimum flat
parking rates established by the city. Tenant may, however, convert from flat rate parking
to hourly parking during those times authorized by the city for flat rate parking provided
the hourly rate is not less than the city's parking meter rates.
19.3.6 Tenant shall supervise the proper and efficient parking in
the Parking Structure of the cars of the general public, collect parking fees and prepare
and maintain accurate reports and records concerning the parking operations.
-16-
19.3.7 Tenant shall supervise and control oversight of the Parking
Structure and equipment; establish controls to minimize vandalism, theft, arson, damage
to parked cars and to the Parking Structure, an equipment; maintain the Parking Structure
as required to prevent accumulation of debris, dust, oil, dirt and slicks.
19.3.8 Tenant shall comply with all applicable city, county, state
and federal laws and regulations and obtain all necessary licenses, bonds and permits for
the operation of the Parking Structure.
19.3.9 Tenant shall ensure that the Parking Structure operations .
include automated collection procedures to ensure accurate reporting of gross parking
revenues.
19.3.10 Tenant shall have the right to operate the Parking
Structure on a "flat rate," from 5 PM until 2 AM provided acceptable procedures and
safeguards are in place to ensure that the city can verify parking revenues collected. At 2
AM the city will cause the parking meter boxes to be caged and at 6 Am the city will
cause the parking meter boxes to be uncaged.
19.3.11 The use of the fifth level of Parking Structure shall be
determined by Tenant in its sole discretion provided that the proposed use is consistent
with the terms and uses contemplated by this Agreement.
19.4 Records and Reporting.
19.4.1 Books and Records. Tenant shall at all times maintain at its
registered office proper Books and Records.
19.4.2 Reporting. Unless otherwise agreed in writing by Landlord,
Tenant shall prepare and provide to Landlord:
(a) within 21 days following the end of each fiscal quarter,
Tenant's quarterly un- audited balance sheet and profit and loss statement; and
(b) within 120 days of each fiscal year, Tenant's annual reviewed
financial statements.
19.4.3 Compliance with GAAP. Tenant shall maintain a system of
accounting and reporting established and administered in accordance with GAAP.
19.4.4 Right of Inspection. Tenant shall permit Landlord and its
authorized representatives to and, at the expense of the inspecting party, take copies of the
Books and Records and, for such purpose, to have access during normal business hours to
the premises where such Books and Records are located.
-17-
19.4.5 Tenant's Financial Statements. Within 120 days following
the end of each fiscal year, Tenant shall deliver to Landlord the annual reviewed financial
statement of Tenant.
19.5 Security and Enforcement of Parking Violations. The Landlord,
acting in its capacity as the City of South Miami, will be responsible for security
comparable to the "Shops of Sunset" and reserve the right to enforce, administer and
collect tickets for all parking violations within the Parking Structure. Ticket revenues
shall not be considered part of the gross parking receipts. Ticket revenues collected shall
belong to the city.
20. Valet Parking.
20.1 Tenant shall apply for and obtain a standard valet parking
authorization from the city.
20.2 Tenant shall be authorized to operate up to two valet parking zones to
facilitate the unloading of passengers and two carryout pick -up zones during the evening
hours from 4 pm to 2 am.
20.3 The two valet parking zones shall be located immediately in front of
the restaurant establishments.
20.4 Tenant shall operate the valet parking zone in such a manner as to
provide ample opportunities for its use in loading and unloading passengers by motorists
who do not wish to utilize the valet parking service.
20.5 Tenant shall set the valet parking rates.
20.6 Valet parking revenues shall be considered part of the gross parking
revenues generated by the Parking Structure.
21. Surrender of the Premises. Upon termination of this Lease, Tenant shall
remove its personal property and surrender possession of the Premises in its "as is"
condition. Tenant shall have no responsibility for making any extraordinary repairs or
replacements, or establishing any reserves therefore, nor shall Tenant be required to make
any representations or warranties concerning the condition of the Premises upon .
surrender. Tenant, however, does have the obligation to maintain the Premises in such a
way as is commercially reasonable.
22. Sale of Leasehold, Subletting, Landlord's Assignment.
22.1 Right to Transfer Leasehold. During the tern of this Lease, Tenant
may sell, assign, or otherwise transfer this Lease to such other persons, firms,
corporations, partnerships unincorporated associations, joint ventures, estates, trusts, any
-18-
federal state or municipal government, bureau, department or agency thereof or other
entity (Successor Tenants) as Tenant shall select provided that said conveyance of the
Tenant's leasehold interest receives the approval of the City Commission as required
under the South Miami City Charter.
22.1.1 Right of First Refusal. Upon Tenant's exercise of its right to
transfer _the Lease to a third party as provided in Paragraph 22.1 Tenant shall provide
written notice of the terms and conditions of the proposed assignment of the Lease as well
as the terms and conditions for any proposed sale of the MRPLand, if the MRP Landis
being sold in conjunction with the transfer of the Lease ( "Sale Notice "). Landlord shall
have thirty business days in which to deliver written notice ( "Acceptance Notice ") to
Tenant of Landlord's intent to purchase the Tenant's interest in the Lease and the Land on
the same terms and conditions as referenced in the Sale Notice. If the Landlord delivers
the Acceptance Notice to Tenant on a timely basis, Tenant shall convey its interest in the
Lease and the Land to Tenant for the price and on the terms contained in the Sale Notice.
Unless the Sale Notice provides otherwise, the closing for Landlord's purchase of
Tenant's interest in the Lease and Land shall be within 120 days of Tenant's receipt of the
Acceptance Notice. If the Landlord fails to deliver the Acceptance Notice to Tenant on a
timely basis, Tenant shall be at liberty to sell and convey the Lease and Land as provided
in the Sale Notice. In the event Landlord exercises its right to purchase the Leasehold and
the Land as provided in this Subparagraph 22.1.1 Tenant's interest in this Lease shall be
terminated as of the closing date of Landlord's purchase and the parties shall have no
further liabilities or obligations to each other hereunder.
22.1.2 Transfer Fee. Upon Tenant's transfer of its leasehold interest
in the Project as provided in subparagraph 22.1 above, Tenant shall pay Landlord a
transfer fee (the "Transfer Fee "). If the net profits equal or are less than $1,400,000, the
Transfer Fee shall equal 18% of the net profits realized from the transfer of the leasehold.
If the net profit from the transfer of the leasehold by Tenant exceeds $1,400,000 the
Transfer Fee shall be $252,000 plus 20% of the amount by which the net profit exceeds
$1,400,000. The net profits from the transfer of the leasehold by Tenant shall be
determined under Generally Accepted Accounting Principles (GAAP).
22.1.3 Riahts to Sublease. Tenant shall have the right to sublease all
or any portion of the Tenancy without any approval of or consent from Landlord provided
Tenant remains responsible for complying with the Lease. Landlord shall execute
Subordination, Non- Disturbance and Attornment agreements acceptable to all parties'
counsels with Tenant and Tenant's sub - tenants. Tenant shall have the right to enter into
sub - tenant leases for the Premise, whose term exceeds the term of the herein Lease, with
the prior written permission of Landlord.
22.2 Landlord Assignment. If the interest of Landlord under this Lease is
transferred voluntarily to a purchaser or other party ( "Transferee "), Tenant shall be bound
to such Transferee for the balance of the Lease Term remaining, and any extensions or
renewals thereof which may be effected in accordance with the terms and provisions
-19-
hereof, with the same force and effect as if the Transferee were the Landlord under this
Lease, and Tenant does hereby agree to attorn to the Transferee, as its Landlord, such
attornment to be effective and self - operative without the execution of any further
instruments upon the Transferee succeeding to the interest of the Landlord under this
Lease. The respective rights and obligations of Tenant and the Transferee upon such
attornment to the extent of the then remaining balance of the Lease Term and any such
extensions and renewals shall be and are the same as those set forth herein. In the event of
such transfer of Landlord's interest, Landlord shall be released and relieved from all
liability and responsibility thereafter accruing but shall remain liable for all its obligations
to Tenant prior to the date of such transfer. Prior to the execution of a contract to transfer
its interest under this Lease, Landlord shall first offer Tenant the opportunity to purchase
Landlord's interest under the same terms and conditions.
22.3 Compliance with City Charter. For so long as the City of South
Miami shall be the Landlord under this Lease, any sale or assignment of Tenant's
leasehold interest hereunder, with respect to the Premises shall be in compliance with the
Charter and the parties shall cause all appropriate notices to be filed with the office of the
City Manager of South Miami. In the case of a conflict between the provisions of this
subparagraph 22.3 and the balance of Paragraph 22, the provisions of this subparagraph
22.3 shall control.
23. Insurance.
23.1 Acquisition of Insurance Policies. Tenant and Landlord shall, at their
respective sole cost and expense, procure and maintain, or cause to be procured and
maintained, during the entire Lease Term the insurance described in this Paragraph 23 (or
its then available equivalent), which insurance shall be subject to Landlord's review and
approval (which approval shall not be unreasonably withheld or delayed) and shall name
Landlord as an additional insured. Policy limits shall be reviewed annually by Landlord
and Tenant and may be adjusted if prudent, considering levels of inflation, risk of loss,
premium expenses, and other relevant factors.
23.2 Types of Required Insurance. Landlord and Tenant shall procure and
maintain the following:
23.2.1 Commercial General Liability Insurance. After Completion of
Construction, commercial general liability insurance covering all claims with respect to
injuries' or damages to persons or property sustained in, on or about the Parking Structure,
the Premises and the appurtenances thereto, including the sidewalks' and alleyways
adjacent thereto, which shall contain a "contractual liability" and a cross - liability clause,
with limits of liability (which limits shall be adjusted as provided in Subparagraph 23.1
above) no less than the following:
Commercial General Liability
-20-
(i) Two Million Dollars ($2,000,000) per claim five million dollars ($5,000,000.00)
aggregate.
23.2.2 Physical Property Damage Insurance. After Completion of
Construction, physical damage insurance covering all real and personal property,
excluding property paid for by Subtenants or paid for by Tenant for which Subtenants
have reimbursed Tenant, located on or in, or constituting a part of, the Parking Structure
and the Premises in an amount equal to at least one hundred percent (100 %) of the new
replacement cost of all such property (or such lesser amount as Landlord may approve in
writing). Such insurance shall (a) be provided on an all risk ' or special form property
coverage as may be customary for like properties in the vicinity of the Project from time
to time during the term of this Lease and (b) cover explosion of steam and pressure boilers
and similar apparatus located in the Parking Structure and Premises, subject in each case
to deductibles approved by any. Leasehold Mortgagees of the Parking Structure and
Premises. Tenant and Landlord shall not be required to maintain insurance for either
earthquake or war risks; provided, however, if such coverage is obtained, then, for as long
as such insurance is maintained Tenant and Landlord shall be entitled to the benefits of the
first sentence of subparagraph 23.3 hereof.
23.2.3 Business Interruption. After construction of the Project,
business interruption insurance in an amount not less than twelve months of revenue for
the Premises.
23.2.4 Builder's Risk Insurance. During construction of the Project,
contingent liability and builder's risk insurance upon the entire work on the Parking
structure to the current one hundred percent (100 %) replacement value thereof against "all
risks" of physical loss or damage to the property insured. Such insurance shall be provided
by Tenant or Tenant's general contractor and name the city as an additional insured.
23.3 Terms of Insurance. The policies required under subparagraph 23.1
shall name Landlord and Tenant as additional insured and Tenant shall provide Landlord
certificates of insurance and copies of policies obtained hereunder promptly upon the
request of each as and when received.
23.4 Landlord's Acquisition of Insurance. If Tenant at any time during the
Lease Term fails to procure or maintain insurance required hereunder or to pay the
premiums therefore, Landlord shall have the right to procure the same and to pay any and
all premiums thereon, and any amounts paid by Landlord in connection with the
acquisition of insurance shall be immediately due and payable as Additional Rent, and
Tenant shall pay to Landlord upon demand the full amount so paid and expended by
Landlord. Any policies of insurance obtained by Landlord covering physical damage to
the Premises shall contain a waiver of subrogation against Tenant if and to the extent such
waiver is obtainable and if Tenant pays to Landlord on demand the additional costs, if
any, incurred in obtaining such waiver.
-21-
23.5 Insurance Money and Other Funds Held in Trust. All insurance
money received by Tenant for the Premises shall be held in trust and shall be applied for
the purpose of defraying the cost of repairing, restoring, replacing, or rebuilding the
Premise. Any excess funds held in Trust will be disbursed to Tenant and will not be used
to prepay the MRP Notes without Tenant's consent.
23.6 Waiver of Subrogation. Landlord and Tenant hereby release each
other from any and all liability or responsibility (to the other or anyone claiming through
or under the other by way of subrogation or otherwise) for any loss or damage to real or
personal property on the Parking Structure and Premises caused by fire or any other
insured peril, even if such fire or other casualty shall have been caused by the fault or
negligence of the other parry or anyone for whom such party may be responsible.
Landlord and Tenant shall each procure insurance policies with such a waiver of
subrogation and with a clause or endorsement to the effect that any such release shall not
adversely affect or impair said policies or prejudice the right of the releasor to recover
thereunder; provided, however, if policies with such a clause or endorsement shall not be
obtainable or shall be obtainable only at a premium over that chargeable without such
waiver, the party seeking such policy shall notify the other thereof, and the latter shall
have ten (10) days thereafter either (a) to procure such insurance in companies reasonably
satisfactory to the other party or (b) to agree to pay such additional premium. If neither (a)
nor (b) is done, this Paragraph shall have no effect during such time as such policies shall
not be obtainable or the party in whose favor a waiver of subrogation is desired shall
refuse to pay the additional premium. If such policies shall at any time be unobtainable,
but shall be subsequently obtainable, neither party shall be subsequently liable for a failure
to obtain such insurance until a reasonable time after notification'' thereof by the other
per'•
24. Relation of the Parties. The execution of this Lease or the performance of
any act pursuant to the provisions thereof shall not be deemed or construed to have the
effect of creating between Landlord and Tenant the relationship of principal or agent, or of
partnership or joint venture once the Project construction has been completed.
25. Acts of God; Unavoidable Delays.
25.1 Acts of God. Notwithstanding any other provision herein to the
contrary, provided such cause is not due to the willful act or neglect of the party asserting
its rights under this Paragraph, a parry shall not be deemed in default with respect to the
performance of any of the terms, covenants and conditions of this Lease if the same
should be due to any Unavoidable Delay, as defined herein, including but not limited to,
hurricane, windstorm, tornado, lightning, flood, strike, lock -out, civil commotion, war -like
operation, terrorism invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, inability to obtain any materials, service or
financing, through act of God or other cause beyond the control of such party.
-22-
26. Landlord's Covenant of Quiet Enjoyment. If Tenant observes and performs
all the covenants, .terms and conditions hereof, Tenant and Subtenants shall peaceably and
quietly hold and enjoy the Premises for the Lease Term without interruption by Landlord
or any person or persons claiming by, through or under Landlord, subject to the terms and
conditions of this Lease.
27. Brokerage. Landlord and Tenant represent and warrant that they have dealt
with no broker, agent, or other person in connection with this transaction. Each party
agrees to indemnify the other should a broker prevail on a claim for a brokerage
commission earned due to the execution of this Lease and the construction of the Project.
28. Time of Essence. Time shall be of the essence with regard to the
performance by Tenant and Landlord of all of their respective obligations hereunder.
29. Notices. All notices, demands, consents, and reports provided hereunder
shall be in writing and shall be given to the parties at the addresses set forth below or at
such other address as any of the parties may hereafter specify by notice given in the same
manner:
As to Landlord:
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Attn: Maria V. Davis, City Manager
With copy to:
City Attorney for the City of South Miami
Nagin Gallop Figueredo
3225 Aviation Avenue, Suite 301
Miami, Florida 33133
As to Tenant:
Mark Richman
Mark Richman Properties, Inc.
18500 N.E. 5th Avenue
North Miami Beach, Florida 33160
-23-
With copy to:
George McArdle
201 Alhambra Circle, Suite 702
Coral Gables, Florida 33134
With copes:
Charles Deutchman
28026 Gates Mills Boulevard
Pepper Pike, Ohio 44124 -4730
Such notice or other communication, together with appropriate copies, may be mailed by
United States registered or certified mail, return receipt requested, postage prepaid or
delivered by hand or by telecopy. If the notice and copy are mailed, then such notice or
other communication shall be deemed to have been received by the addressee on the date
of actual receipt as evidenced by postal or other receipt.
30. Compliance with Laws and Ordinances.
30.1 Compliance. Throughout the term of this Lease, Tenant, at Tenant's
sole cost and expense, and Landlord, at Landlord's sole cost and expense, shall promptly
comply with all applicable laws, regulations and ordinances.
30.2 Contest by Tenant. Tenant shall have the right, after prior written
notice to Landlord, to contest the validity or application of any tax, law or ordinance by
appropriate legal proceedings diligently conducted in good faith, in the name of Tenant
without cost or expense to Landlord. If counsel is required, the same shall be selected and
paid by Tenant to the extent that Tenant's compliance shall require the cooperation and
participation of Landlord, Landlord agrees to cooperate and participate. Landlord hereby
agrees to execute and deliver any appropriate papers, affidavits, forms or other such
documents reasonably necessary for Tenant to contest the validity or application of any
tax, law or ordinance and approved by counsel for Landlord, which approval shall not be
unreasonably withheld or delayed.
31. Representations and Warranties.
31.1 Landlord's Representations. Landlord hereby represents to Tenant
that:
31.1.1 Free of Violations. The Land is free and clear of any.
violations of laws, regulations and ordinances.
31.1.2 No Actions Affecting Use. There are no existing rules,
regulations, citations, ordinances or orders of any municipal, county, state or other
-24-
governmental agency which adversely affect the use of the Land in a manner inconsistent
with this Lease and no such adverse effect or change is threatened, pending or imminent.
31.2 Landlord's Warranties. Landlord hereby warrants to Tenant that:
31.2.1 Authority to Bind. Landlord has full power and authority to
enter into this Lease and perform in accordance with its terms and provisions; that the
parties signing this Lease on behalf of Landlord have the authority to bind Landlord and to
enter into this transaction and Landlord has taken all requisite action and steps to legally
authorize it to execute, deliver and perform pursuant to this Lease.
31.2.2 Free of Tenancies. Landlord shall deliver possession of that
part of the Land for the Premises to Tenant free and clear of any and all tenancies and
occupancies, subject only to the rights reserved herein to Landlord.
31.3 Tenant's Representations and Warranties. Tenant hereby represents
and warrants to Landlord that:
31.3.1 Tenant's Representations. Tenant hereby represents to
Landlord that:
31.3.1.1 Free of Violations. The MRP Land is free and clear
of any violations of laws, regulations and ordinances.
31.3.1.2 No Actions Affecting Use. There are no existing
rules, regulations, citations, ordinances or orders of any municipal, county, state or other
governmental agency which adversely affect the use of the MRP Land in a manner
inconsistent with this Lease and no such adverse effect or change is threatened, pending or
imminent.
31.3.2 Authority to Bind. It has full power and authority to enter
into this Lease and perform in accordance with its terms and provisions; that the parties
signing this Lease on behalf of Tenant have the authority to bind Tenant and to enter into
this transaction and Tenant has taken all requisite action and steps to legally authorize it to
execute, deliver and perform pursuant to this Lease.
32. Exculpation. Notwithstanding anything contained to the contrary or any
other provision of this Lease, it is specifically agreed. and understood that there shall be
absolutely no personal liability on the part of Tenant's individual officers, directors,
stockholders, partners (general and limited) or co- venturers of Tenant, or any assignee or
successor -in- interest of Tenant with respect to any obligations, terms, covenants and
conditions of this Lease, and Landlord shall look solely to the equity of Tenant or any
such assignee or successor -in- interest in the leasehold estate of Tenant under this Lease
for the satisfaction of each and every remedy of Landlord in the event of any breach by
Tenant or by any such assignee or successor -in- interest of any of the obligations, terms,
covenants and conditions of this Lease to be performed by Tenant.
-25-
33. Prior to .Construction. In the event the Old MRP Building is demolished and
the Project is not constructed, then Tenant shall retain the right to reconstruct a building
having the same square footage, footprint and available parking spaces as the Old MRP
Building.
34. Destruction After Construction. In the event the Project is constructed,
thereafter destroyed and the Replacement MRP Building is not reconstructed, then the
same rights as in paragraph 33 above shall apply and MRP shall have the right to re-
construct a building as set forth in paragraph 33 above.
35. General Provisions.
35.1 Severability. If any provision of this Lease or the application thereof
to any person or circumstances is held invalid, prohibited, or unenforceable for any
reason, this Lease shall be ineffective only to such extent and the remaining provisions
shall continue to be given full force and effect so far as possible.
35.2 No Waiver. The failure of a party to insist upon strict performance of
any term, to claim any interest, or to exercise any power, right or option contained in this
Lease, in any one or more instances, shall not be construed to be or constitute in fact a
waiver or relinquishment of that party's right to assert and enforce its rights regarding any
such term, interest, right, power, or option in any future instance. No waiver shall be
deemed to have been granted hereunder unless in writing and signed by the party granting
the waiver.
35.3 Entire Agreement: This Lease, including the Declaration of Master
Covenants, Easements & Restrictions for South Miami Parking Building and all Exhibits
referenced herein and the entire agreement of the parties and is intended as a complete and
exclusive statement of the terms thereof. Any oral or written inducements,
representations, warranties, agreements or other communications made prior to the
execution of this Lease shall be void and ineffective for all purposes.
35.4 Successors and Assigns. This Lease shall be binding upon the
successors, assigns, and representatives of the parties hereto.
35.5 Modification and Rescission. This Lease may be modified or
rescinded only by a writing signed by the parties making specific reference hereto. For so
long as the City of South Miami is the Landlord, any modification or rescission of this
Lease shall require the approval of the City of South Miami Commission.
35.6 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Florida without regard to its conflicts or choice of
law and venue for any proceeding hereunder shall be in the Circuit Court for and in
Miami -Dade County, Florida.
-26-
35.7 Interpretation. Unless the context of this Lease indicates a contrary
intent, words in the singular shall include the plural and vice - versa, and words in the
masculine gender shall include the feminine or neuter genders as appropriate. Paragraph
headings are for convenience only and shall not in any way affect the interpretation of any
provision of this Lease.
35.8 Radon Disclosure. The following disclosure is required to be
furnished under Florida law:
"Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have
been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your
county public health center."
35.9 No Discrimination. Tenant will not discriminate against any
employee or applicant for employment because of race, religion, color, sex, sexual
preference, age, ancestry, marital status, handicap, place of birth, or national origin.
35.10 Work Force: In an effort to enhance job opportunities for local
citizens, Tenant agrees to give a preference to job applicants residing in South Miami. In
order to maximize the pool of applicants from South Miami, the Applicant shall send
notice to the Community Redevelopment Agency Director of the City of South Miami, or
a substitute designee by the City Manager, regarding employment opportunities related to
any (1) construction work on the Property, (2) temporary or permanent maintenance work
on the Property, or (3) proposals for leasing of retail space or employment opportunities
associated with retail space located on the Property._ In regard to recruitment and
employment, the Tenant shall impose similar requirements in its sublease agreements with
subtenants and shall use it's best efforts to hire job applicants from the City of South
Miami, provided such candidates are qualified for the positions in question.
35.11 Attorneys' Fees. If any action is brought to enforce this Lease, or to
rescind the same, or to collect damages for an alleged breach hereof, or for a declaratory
judgment hereunder, the prevailing party in such action or arbitration, whether Landlord
or Tenant, shall be entitled to an allowance for reasonable attorneys' fees (whether at the
pretrial, trial or appellate level), in addition to costs of suit or arbitration. Attorneys' fees
payable under this subparagraph 35.10 shall not exceed 25% of the amount of damages
awarded to the prevailing party and no party shall be entitled to pre judgment interest.
35.12 Reasonableness of Approvals. Pursuant to this Lease Agreement, the
Landlord and Tenant are required to give approvals to various matters effecting each
other's rights. In considering whether to give such approval, the Landlord and Tenant
-27-
shall act in good faith and in a commercially reasonable manner unless otherwise provided
herein. Nothing in this Agreement shall be construed to waive or limit the City's
governmental authority as a municipal corporation and political subdivision of the State of
Florida. Unless specified otherwise, where approval or consent of the City is required
under this Agreement, such consent or approval shall be deemed to refer to the City's
consent or approval as a property owner, and such consent or approval shall be contractual
in nature and shall not be in lieu of any required governmental approval of City.
35.13 Duplicate Originals. This Lease is fully executed by the parties in
duplicate identical original instruments, either of which may be introduced into evidence
in any proceeding as conclusive proof of the text thereof. Each party acknowledges
receipt of one fully executed Lease.
35.14 Project Name. Parties shall agree on the name for the Project.
35.15 Superseding Effect. This Agreement (including attached exhibits)
supersedes the Lease Agreement between Landlord and SPG and the MRP Lease and
constitutes the entire Agreement between Tenant and Landlord.
35.16 Hours of Operation for Retail Establishments. Tenant shall require
all retail subtenants (excluding restaurants) to remain open from 9 A.M. until 8 P.M.
-28-
[Signature Pages to Follow]
_29_
IN WITNESS WHEREFORE, this Lease has been executed and caused to be delivered in
Miami -Dade County, Florida, to be effective in all respects as of February , 2005
( "Effective Date ").
TENANT:
Mark Richman Properties Inc., a Florida
corporation
0
Mark Riclunan, President
Date:
SWORN TO AND SUBSCRIBED before me this day of February, 2005, by
Mark Richman, as president of Mark Richman Properties, Inc. a Florida corporation, on
behalf of the corporation. He (a) is personally known to me, or (b) has
produced as identification.
My commission expires:
Notary Public - State of Florida
Name:
[SEAL]
-30-
LANDLORD:
City of South Miami, a municipality of
Miami -Dade County, Florida
By:
Maria V. Davis, City Manager
Date:
SWORN TO AND SUBSCRIBED before me this day of February, 2005, by
Maria Davis, as City Manager of the City of South Miami, Florida, on behalf of the City
.of South Miami, Florida. He (a) is personally known to me, or (b) has
produced as identification.
My commission expires:
Notary Public - State of Florida
Name:
[SEAL]
-31-
EXHIBIT A
Legal Description of City Land
Lot 35, LESS the West 5.0 feet thereof, and Lot 36, LESS the
South 40.09 feet thereof, and Lot 48, LESS the South 10.0
feet thereof, and all of Lots 49 and 50, W.A. LARKIN' S
SUBDIVISION, according to the Plat thereof, as recorded in
Plat Book 3, at Page 198 of the Public Records of Dade
County, Florida.
Together with:
The South 40.09 feet of Lot 36, LESS the West 5.0 feet and
Lot 37 LESS the West 5.0 feet and LESS the South 10.0 feet
thereof, W.A. LARKIN'S SUBDIVISION, according to the
Plat thereof as recorded in Plat Book 3, at Page 198 of the
Public Records of Dade County, Florida.
-32-
Mm:i
Legal Description of MRP Land
Lot 36, less the North 11 2/3 feet, and Lot 37, also less the
South 10 feet of Lot 37 and the West 5 feet of Lot 36 and 37,
for Street widening of W.A. LARKINS SUBDIVISION,
accounting to the Plat thereof, as recorded in Plat Book 3,
Page 198, of the Public Records of Dade County, Florida.
Sim
EXHIBIT C
Title Exceptions for City Land
Sim
EXHIBIT D
NW Note
and
Payment Schedule for NW Note
�ci�
EXHIBIT E
Mark Richman Guaranty
WIT
Imo: mulam
Title Exception MRP Land
-37-
EXHIBIT G
Project Schedule
-38-
SIM
Schedule I
Hours of Operation
The Garage will be open 24 hours per day, seven days per
week.
Schedule II
Parking Rates
Parking Meter Rate $1.00 per hour
Flat Parking Rates
Sunday — Thursday $5.00
Friday and Saturday $6.00
-41-
m
EXHIBIT D
MRP Note
and
PaMent Schedule for MRP Note
-34-
PROMISSORY NOTE
U.S. $ 2,500,000.00 JUNE l2, 2002
FOR VALUE RECEIVED, Mark Richman Properties, Inc., a Florida corporation
('Borrower "), whose address is 18500 N.E. 5h Avenue, North Miami, Florida 33160, promises
to pay to the order of The City of South Miami ( "Lender "), whose address is 6130 Sunset Drive,
South Miami, Florida 33143 or at such other place as the Lender may from time to time
designate in writing, the amount of TWO MILLION FIVE HUNDRED THOUSAND
DOLLARS AND 00 /100 DOLLARS ($2,500,000.00), (the "Loan')or as much thereof as may
have been disbursed, together with interest payable on the unpaid principal balance from time to
time outstanding from the date hereof, payable as hereinafter set forth:
The entire outstanding principal balance together with all accrued interest due thereon
shall be due and payable on April 1, 2032.
The net interest cost shall average 5.0975725% over the term of the loan Note (the "Note
Rate ").
All payments of principal and interest due hereunder shall be made in accordance with
the payment schedule attached as Exhibit 1. All payments shall be made without notice or
demand and shall not be subject to any claim or offset of any kind or nature whatsoever.
The whole of the principal then remaining unpaid, together with all unpaid interest
accrued thereon and all other amounts payable under this Note and the Mortgage (as hereinafter
defined) shall become immediately due and payable, at the option of the Lender, after default in
the payment, of any installment of principal or interest for a period of fifteen (15) days, or after
default (and the expiration of the applicable grace period, if any) in the performance of any of the
covenants, conditions, or obligations of the Mortgage. These obligations of Borrower under this
Note are secured by a Mortgage, a Loan Agreement and a Guaranty of even date herewith. The
terns and provisions of the Mortgage and Loan Agreement are by this reference incorporated
herein. The holder of this Note shall be entitled to the benefits, security and remedies provided
in the Mortgage and Loan Agreement.
The Borrower shall have the right, at any time or from time to time, without penalty or
premium, to prepay all or part of the unpaid principal amount outstanding under this Note. Any
prepayment of this Note, either in whole or in part, shall be applied by the Lender first to accrued
interest and then to principal.
The Borrower and all endorsers and guarantors of this Note agree to pay the Lender all
costs incurred by Lender in connection with the execution, collection, enforcement and
interpretation of this Note, Mortgage, Loan Agreement, and Guaranty. Such costs include,
without limitation, Florida documentary stamp tax, intangible tax, reasonable fees for the
services of counsel and legal assistants employed to enforce or collect this Note, whether or not
suit be brought, and whether incurred in connection with collection, pre -trial, trial, appeal or
otherwise.
Page 1 of 6
The remedies of the Lender as provided herein shall be cumulative and concurrent, and
may be pursued singularly, successively or together, at the sole discretion of the Lender and may
be exercised as often as occasion therefore shall arise. No act of omission or commission of the
Lender, including specifically any failure to exercise any right, remedy or recourse, shall be
effective, unless set forth in a written document executed by the Lender, and then only to the
extent specifically recited therein. A waiver or release with reference to one event shall not be
construed as continuing, a bar to, or as a waiver or release of any subsequent right, remedy or
recourse as to any subsequent event. This Note shall be subject to, construed and enforced in
accordance with the laws of the State of Florida and shall be binding upon the successors and
assigns of the respective parties hereto. The term "Lender" as used herein shall include any
holder of this Note.
The Obligors (which term shall mean and include the Borrower, and any endorsers,
sureties, guarantors) hereby: (a) except as otherwise expressly provided herein, waive demand,
notice of demand, presentment for payment, notice of nonpayment or dishonor, protest, notice of
protest and all other notices in connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note; (b) agree to any substitution, addition, or release of
any collateral or any party or person primarily or secondarily liable hereon; (c) agree that the
Lender shall not be required first to institute any suit, or to exhaust its remedies against the
Borrower or any Obligor to become liable hereunder, or against any collateral in order to enforce
payment of the indebtedness evidenced by this Note; (d) consent to any extension,
rearrangement, renewal or postponement of time of payment of the indebtedness evidenced by
this Note and to any other indulgence with respect hereto without notice, consent or
consideration to any of them; and (e) agree that, notwithstanding the occurrence of any of the
foregoing (except with the express written release by the Lender of any such person), each
Obligor shall , jointly and severally remain directly and primarily liable for. the indebtedness
evidenced by this Note.
Upon the occurrence of any of the following events, each of which shall constitute a
default hereunder, all sums due hereunder shall thereupon or thereafter, at Lender's option,
become due and payable sixty (60)days after written demand received by Borrower from Lender:
(a) failure of any Obligor to pay any sum due hereunder or due by any Obligor to Lender under
the Mortgage; (b) occurrence of default (and expiration of the applicable grace period, if any)
under this Note or the Mortgage; (c) filing of any petition under the United States Bankruptcy
Code or any similar federal or state statute by or against any Obligor or the insolvency of any
Obligor; (d) making of a general assignment by any Obligor for the benefit of creditors,
appointment of or taking possession by a receiver, trustee or custodian or similar official for any
Obligor or institution by or against any Obligor of any kind of insolvency proceedings or any
proceeding or dissolution or liquidation of any Obligor which is not dismissed within thirty (30)
days of the filing thereof; (e) entry of a final judgment which has a material and adverse effect on
the property encumbered by the Mortgage against any Obligor which is not satisfied or
transferred to bond within thirty (30) days of the date of entry; (f) issuance of any writ of
attachment or writ of garnishment or the filing of any lien against any collateral encumbered by
The Mortgage which is not dismissed within thirty (30) days of the date of issuance or filing,
Page 2 of 6
whichever is applicable; (h) occurrence of any default (after the expiration of the applicable
grace period, if any) under the Mortgage.
Any notice, request, demand, instruction or other communication to be given to either
party, shall be in writing and shall be sent by certified mail, return receipt requested, or by
overnight express mail service, as follows:
If to Lender: City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Attention: Charles Scurr, City Manager
with copy to: Earl Gallop
Nagin Gallop Figueredo, P.A.
3225 Aviation Avenue
Suite 301
Miami, Florida 33133
If to Borrower: Mark Richman Properties, Inc.
18500 N.E. 5`t' Avenue
North Miami, Florida 33160
Attention: Mark Richman
with copy to: George McArdle
6601 SW 128b Street
Miami, Florida 33156
This Note may not be amended, extended, renewed or modified nor shall any waiver of
any provision hereof be effective, except by an instrument in writing executed by the Lender.
Any waiver of any provision hereof shall be effective only in the specific instance and for the
specific purpose for which given.
In the event any suit or legal proceeding is brought for the enforcement of any provision
of this Promissory Note, the parties agree that the prevailing party or parties shall be entitled to
recover from the other party or parties upon final judgment reasonable attorneys' fees, including
attorneys' fees for any appeal, and costs incurred in bringing the suit or proceeding. Any action
arising out of this Promissory Note shall be brought in Miami -Dade County, Florida, and shall be
subject to Florida law.
[SIGNATURE PAGE TO FOLLOW]
Page 3 of 6
IN WITNESS WHEREOF the Borrower has caused this Note to be executed by its duly
authorized officer as of the day and year first above written.
. [Corporate Sea]]
Mark Richman Properties, Inc.
Name: nkVIC�'�'��
Title: Mei L
Page 4 of 6
Date
10/01/2002
04/01/2003
10/01/2003
04/01/2004
10/01/2004
04/01/2005
10/01/2005,
04/01/2006
l 0/01 /2006
04/01/2007
10/01/2007
04/01/2008
10/01/2008
04/01/2009
10/01/2009
04/01/2010
10/01/2010
04/01/2011
10/01/2011
04/01/2012
10/01/2012
04/01/2013
10/01/2013
04/01/2014
10/01/2014
04/01/2015
10/01/2015
04/01/2016
10/01/2016
04101/2017
10/01/2017
04/01/2018
10/01/2018
04/01/2019
10/01/2019
04/01/2020
10/01/2020
i •
EXHIBIT 1
MRP PROPERTIES PAYMENT SCHEDULE
Payment
$ 62,251.10
$102,571.20
$ 61,596.00
$101,916.00
$ 60,840.00
$103,080.00
$ 59,784.00
$103,944.00
$ 58,680.00
$104,760.00
$ 57,758.40
$105,758.40
$ 56,798.40
$106,718.40
$ 55,800.00
$107,640.00
$ 54,763.20
$108,523.20
$ 53,654.40
$111,254.40
$ 52,214.40
$111,734.40
$ 50,577.60
$113,937.60
$ 48,835.20
$116,035.20
$ 46,987.20
$116,107.20
$ 45,086.40
$118,046.40
$ 43,080.00
$119,880.00
$ 40,968.00
$123,528.00
$ 38,697.00
$125,097.60
$ 36,537.60
Page 5 of 6
04/01/2021
10/01/2021
04/01/2022
10/01/2022
04/01/2023
10/01/2023
04/01/2024
10/01/2024
04/01/2025
10/01/2025
04/01/2026
10101/2026
04/0112027
1 0/01 /2027
04/01/2028
10/0112028
04/01/2029
10/01/2029
04/01/2030
10/01/2030
04/01/2031
10/01/2031
04/01/2032
m
$126,777.60
$ 34,454.40
$130,281.60
$ 31,881.60
$131,721.60
$ 29,385.60
$134,985.60
$ 26,745.60
$136,185.60
$ 24,009.60
$139,209.60
$ 21,129.60
$142,089.60
$ 18,105.60
$146,745.60
$ 14,809.20
$149,209.20
$ 11,365.20
$151,525.20
$ 7,773.60
$155,613.60
$ 3,985.20
$159,505.20
Page 6 of 6
EXHIBIT E
Mark Richman Guaranty
-35-
PERSONAL GUARANTY
THIS PERSONAL GUARANTY, dated June 12, 2002, is made and given by Mark
Richman ( "Guarantor") in favor of and for the benefit of the City of South Miami ("City "), to
secure the debt due the City by Mark Richman Properties, Inc., a Florida corporation ( "Borrower"),
as hereinafter described.
RECITALS
A. On December 7, 2001, the City of South Miami and Mark Richman Properties, Inc.
entered into a Lease Agreement to jointly develop a multi -use parking structure (the "Lease
Agreemenf).
B. The Lease Agreement provides that the City will apply for project financing from
the Florida Municipal Loan Council.
C. The City has extended a loan to Borrower, as evidenced by that certain Promissory
Note dated June 12, 2002 (the "Note "), in the original principal amount of Two Million Five
Hundred Thousand Dollars and 00 /100 Dollars ($2,500,000.00) (the "Loan "), which Loan is
secured by that certain Mortgage and Loan Agreement, dated June 12, 2002 (the "Mortgage "), in
favor of the City. The Note, Loan Agreement and the Mortgage are hereinafter collectively
referred to as the "Loan Documents ".
D. It is a condition precedent to the granting of the Loan to Borrower by the City that
Guarantor shall have executed and delivered this Guaranty.
E. " Guarantor will obtain benefits as a result of the Loan made to Borrower and,
accordingly, desires to execute and deliver this Guaranty.
NOW, -THEREFORE, for good and valuable consideration and in consideration of the
foregoing and other benefits accruing to Guarantor, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby makes the following representations and warranties to the City
and hereby covenants and agrees with the City as follows:
1. The foregoing recitals are true and correct and are incorporated herein by reference
2. The Guarantor represents that the loan is expected to result in financial and other
valuable benefits to the Guarantor and constitutes good, sufficient and valuable consideration for
the assumption by the Guarantor of its obligations hereunder.
3. Guarantor's personal guaranty shall be One Million Five Hundred Thousand Dollars
($1,500,000.00) of the Loan. Guarantor's personal guarantee shall decrease pro rata as the Loan is
repaid. Guarantor guarantees the full and prompt payment when due, whether at stated maturity, by
acceleration or otherwise of the Guaranteed Debt including all expenses, costs and fees incurred by
the City in enforcing any rights or remedies available to it under the terms or provisions of this
Guaranty including attorneys' fees, from pre -trial through and including appellate litigation.
Page 1 of 4
4. As a condition of payment or performance by Guarantor, the City is not required to
enforce any remedies against Borrower-on account of the Loan.
5. The obligations of the City under this Guaranty shall continue in full force and effect
until the Guaranteed Debt shall be fully satisfied.
6. The City shall be at liberty and hereby reserves the right, without giving notice to or
obtaining the assent of any Guarantor, which notice and right to assent is hereby expressly waived
by Guarantor, and without relieving Guarantor of liability hereunder, to deal with Borrower in such
manner as the City in its capacity as the Lender in its sole discretion deems fit, and to this end,
Guarantor gives to the City full authority in its sole discretion to do any or all of the following: (a)
extend credit, make loans and afford other financial accommodations to Borrower at such times, in
such amounts and on such terms as the City may approve; (b) grant extensions or renewals of any
present or future indebtedness of Borrower, (c) grant time, waivers and other indulgences in respect
thereto; (d) vary, exchange, release or discharge, wholly or partially, or delay in or abstain from
perfecting and enforcing any security or guaranty or other means of obtaining payment; (e) accept
partial payments from Borrower or any such other party; (1) release or discharge, wholly or
partially, any endorser or guarantor, (g) make a settlement with one or more guarantors for less than
the aggregate amount of Borrower's obligations under the Loan Documents and thereafter release
such guarantor(s) from liability hereunder; and (h) compromise or make any settlement or other
arrangement with Borrower.
7. Guarantor expressly waives notice of acceptance hereof, notice of any action taken
or committed by the City in reliance hereon, notice of any default by Borrower or asserting any
other right of the City hereunder and any requirement that the City be diligent or prompt in making
demands herednder.
8. Except as otherwise provided herein, no provision of this Guaranty can be changed,
waived, discharged or terminated except by an instrument in writing signed by the City and
Guarantor expressly referring to the provision of this Guaranty to which sucb instrument relates.
9. Guarantor represents that execution and delivery of this Guaranty and the
performance by the Guarantor hereunder will not violate, conflict or constitute a breach of or
default under any indenture, loan agreement or instrument or agreement to which Guarantor is a
party.
10. The obligations of the Guarantor under this Guaranty shall be absolute and
unconditional and shall remain in full force and effect until the loan has been repaid and such
obligations shall not be affected, modified or impaired upon the happening from time to time of any
event, including without limitation, any of the following, whether or not with notice to or the
consent of, the Guarantor:
(a) the failure to give notice to the Guarantor of the occurrence of an Event of
Default under the terms and provisions of the Lease Agreement or the loan documents;
Page 2 of 4
(b) the waiver by the City of the payment, performance or observance by the
borrower or the Guarantor of any of the obligations, covenants or agreements of any of them
contained in the Lease Agreement or the loan documents;
(c) the modification or amendment (whether material or otherwise) of any
obligation, covenant or agreement set forth in the Lease Agreement or the loan documents;
(d) the taking or the omission of any of the actions referred to in the Lease
,Agreement or the loan documents;
(e) any failure, omission, delay or lack of diligence on the part of the City to
enforce, assert or exercise or the failure or unavailability of any right, power or remedy conferred
on the City in this Guaranty, the Lease Agreement or the loan documents; or
(f) the voluntary or involuntary liquidation, dissolution, sale or other disposition
of ' all or substantially all of the assets, receivership, insolvency, bankruptcy, assignment,
composition with creditor. or other similar proceedings or actions affecting the Borrower or. the
Guarantor or any of their assets.
1C any provision of this Guaranty shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or
in all jurisdictions, or in all cases because it conflicts with any other provision or provisions hereof
or any constitution or statute or rule of public policy, or for any other reason, such circumstance
shall not have the effect of rendering the provisions in question inoperative 'or unenforceable in any
other case or circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any one or more
phrases, sentences, clauses or sections in this Guaranty contained, shall not affect the remaining
portions of this Guaranty, or any part thereof.
Any notice, request, demand, instruction or other communication to be givers to Guarantor
or the City hereunder, shall be in writing and shall be sent by certified mail, return receipt
requested, or by overnight express mail service, as follows:
Uto the City: City of South Miami
6130 Sunset Drive.
South Miami., Florida 33143
Attention: Charles Scurr, City Manager
with copy to: Earl Gallop
Nagin Gallop Fi.gueredo, P.A.
3225' Aviation Avenue
Suite 301
Miami, Florida 33133
Page 3 of 4
If to Guarantor. Mark Richman
Mark Richman Properties, Inc.
18500 N.E. 5"' Avenue
North Miami Beach, Florida 33160
with copy to: George McArdle
6601 SW 128"' Street
Miami, Florida 33156
This Guaranty shall be construed and enforced in accordance with and governed by the laws
of the State of Florida.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as of the
date first above written.
Witnesses:
Marl Richman
STATE OF FLORIDA
COUNTY OF MIAMI -DARE )
The lbregoing instrument was acknowledged before me this day of June, 2002
by Mark Richman, who v-*" (a) is personally known to me, or (b) has produced
as identification.
My commission expires:
f'M � Nkenp� PayrNe , �
�' 3 �r Ccmmi��on CCl0.�06
�►. „,+�'r•'r'�Augus! 16,�oDJ Notary ublic; tate of Florida
jSeal3
Page 4 of 4
il
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami -Dade County, Florida
STATE OF FLORIDA
COUNTY OF MIAMI -DADE:
Before the undersigned authority personally appeared
O.V. FERBEYRE, who on oath says that he or she is the
SUPERVISOR, Legal Notices of the Miami Daily Business
Review f /k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami -Dade
County, Florida; that the attached copy of advertisement;
being a Legal Advertisement of Notice in the matter of
CITY OF SOUTH MIAMI
PUBLIC HEARING 2/15 /2005
in the XXXX Court,
was published in said newspaper in the issues of
02/04/2005
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami -Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Miami -Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second class mail matter at the post
office in Miami in said Miami -Dade County, Florida, for a
period of one year next preceding the first publication of the
attached copy of advertisement; and.affiant further says that he or
She has neither paid nor promised any person, firm or corporation
any discount bate, commission or refund for the purpose
of securin is adv is ent r publication in the said
newspa r.
Sworn to and subscribed before me this
04 d BRUARY D. 2005
pt Maria L Mesa
(SEAL) a My Commission DD293855
O.V. FERBEYRE personally knootiwt jjExpjres March 04, 2003
MENEM
COURTESY NOTICE
CITY OF SOUTH MIAMI, FLORIDA
On Tuesday, February 15, 2005, beginning .1 700 p.m., in the City
Commission Chambers, 6130 Sunset Drive, the City Commission will
hold Public Hearings to consider the following ordinances:
AN ORDINANCE RELATING TO CONTRACTS; APPROVING A LEASE
AGREEMENT BETWEEN THE CITY AND MARK RICHMAN PROPERTIES, INC.,
FOR THE LEASE BY MRP OF CERTAIN CITY PROPERTY AND THE CO-
DEVELOPMENT OF A PARKING STRUCTURE PROJECT AT SW 73 STREET
BETWEEN SIN 58 COURT AND 58 AVENUE.'
AN ORDINANCE PROVIDING FOR A TECHNICAL AMENDMENT TO THE CRY
OF SOUTH MIAMI LAND DEVELOPMENT CODE, BY AMENDING SECTION 2D-
3.1(E)(1)(C) ENTITLED ""MIXED USE (PUB -M)"IN ORDER TO CORRECT A
TECHNICAL ERROR RELATED TO THE MAXIMUM DISTANCE FROM A
PLANNED UNIT DEVELOPMENT MIXED USE PROJECT AND THE METRO RAIL
STATION.
AN ORDINANCE AMENDING THE CITY OF SOUTH MIAMI PENSION PLAN,
PROVIDING FOR ELIGIBILITY AT DATE OF EMPLOYMENT FOR POLICE
OFFICER EMPLOYEES OF THE CITY OF SOUTH MIAMI; PROVIDING FOR A
MINIMUM RATE OF BENEFIT ACCRUAL FOR POLICE OFFICER EMPLOYEES.
AN ORDINANCE RELATING TO A REQUEST TO.AMENO THE OFFICIAL
ZONING MAP OF THE CITY OF SOUTH MIAMI LAND. DEVELOPMENT CODE
BY DESIGNATING A COMMERCIAL BUILDING (AKA ALLEN'S DRUGS)
LOCATED- AT 4000 SW 57th STREET AS AN HISTORIC SITE AND BY
PLACEMENT OFA HISTORIC PRESERVATION OVERLAY ZONE (HP•OV) -OVER
THE EXISTING ZONING USE DISTRICT FOR THIS PROPERTY.
Inquiries concerning the above two Items should be directed to the Planning -
Department at 305 - 663 -6326.
ALL interested parties are Invited to attend and will be heard.
Maria M. Menendez
City Clerk
Pursuant to Florida Statutes 286.01 DS, the City hereby advises the public that If a parson decides b'
appeal any decision made by this. Board, Agency or Commission With respect to any matter
considered at Its meeting or hearing, he or she will need a record of the proceedings, and that for
such purpose, a0ectad person may need to ensure that a verbatim record of the proceedings is made
which record Indudes the testlmony end evidence upon which the appeal is to be based.
SILVER PALMS 3
- AT DADE[.AND
OPPORTUNITY LIMITED!
ONLY .A FEW CONDOS
REMAINING...
We are pleased to announce the opening of out.
SHAPED Credat U-nion SERVICE CENTERS
SOUTH PARK MIANH GARDENS
SHOPPING CENTER BRANCH
12685 S. Dixie Hwy. 6171 NW 183 SL
East Side Of TJS 1 & SW 128 SL Hialeah, FL 33015 '
Pineciest, & 33156 -
305 -592 -7733 exL 681/682
LOBBY HOURS
Mondays, Tuesdays & Thursdays: 9:00am to 5:00pin
Wednesdays: 9:30am to 3:30pm • Fridays: 9:00am to 6:00pm
Saturdays: 9:00am to- 1:00pm
Members of these South Florida Credit Unions may use
MPS Credit Union's Piri=est:Branch as a Shared.Service Center.
American Airlines CU Knight-Ridder/ Miami Herald CU Peoples CU
Broward Schools CU Mercy CU Polder 1 CU
City County CU Miami Beach FCU Priority One CU of Florida
Dade County FCU Miami Firefighters FCU South Florida FCU
Jet Stream CU ' Miami Police FCU Tropical Financial CU
Financial Federal CU Mount Sinai FCU University CU
.
SOUTH PARK
SHOPPING CENTER R MIAMI GARDENS BRANCH
12685 S. Dixie Hwy:.. 6171 NW 153 St.
r Pinecrest, FL 33156 Hialeah, FL 33015
305 -592 -7733 ext. 681/682 do_�%'
lIe`TT I01N.-
tr:Gus
9usiiii;ss opportunity
Information Call.•
305- 237 -6273
.Sales Center
Open Daily