01-16-01MAYOR:
Julio Robaina
CITY MANAGER: Charles D. Scurr
VICE MAYOR:
Horace G. Feliu
CITY ATTORNEY: Earl G. Gallop
COMMISSIONER:
Randy G. Wiscombe
CITY CLERK: Ronetta Taylor
COMMISSIONER:
David D. Bethel
COMMISSIONER:
Mary Scott Russell
CITY COMMISSION AGENDA
City Commission Meeting
Meeting date: January 16, 2001 6130 Sunset Drive, South Miami, FL
Next Regular Meeting Dated February 6, 2001 Phone: (305) 663 -6340
Time: 7:30 PM
City of South Miami Ordinance No. 10 -00 -1712 requires
all lobbyists before engaging in any lobbying
activities to register with the City Clerk and pay an
annual fee of $125.00 This applies to all persons who
are retained (whether paid or not) to represent a
business entity or organization to influence "City"
action. "City" action is broadly described to include
the ranking and selection of professional consultants,
and virtually all- legislative, quasi- judicial and
administrative action. It does not apply to not -for-
profit organizations, local chamber and merchant
groups, homeowner associations, or trade associations
and unions.
CALL TO ORDER:
A. Roll Call:
B. Invocation:
C. Pledge of Allegiance:
D. Presentation(s) *scheduled from 7:00 p.m.
ITEMS (S) FOR THE COMMISSION'S CONSIDERATION:
REGULAR CITY COMMISSION 1
AGENDA — January 16, 2001
1. Approval of Minutes
Due to time constraints minutes will be provided at the
February 6, 2001 Commission meeting.
2. City Manager's Report
3. City Attorney's Report
CONSENT AGENDA
4. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO ATTORNEYS'
FEES; APPROVING ATTORNEYS' FEES FOR NAGIN GALLOP
FIGUEREDO, P.A. IN THE AMOUNT OF $9,900.49, CHARGING
$1,525.69 TO ACCOUNT NO. 1500- 514 - 3452, CODE
ENFORCEMENT; CHARGING $858.20 TO ACCOUNT NO. 1500 -514-
3435, REAL PROPERTY /FORECLOSURE; CHARGING $5,660.54 TO
ACCOUNT NO. 1500 - 514 -3410, LEGAL SERVICES, NON-
RETAINER; CHARGING $1,856.06 TO ACCOUNT NO. 608-1910 -
521 -3100, PROFESSIONAL SERVICES, FORFEITURE; PROVIDING
AN EFFECTIVE DATE. 3/5
ORDINANCE (S) SECOND READING PUBLIC HEARING (S)
5. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO MATCHING
FUNDS FOR SAFE - NEIGHBORHOOD PARK GRANT FOR CONSTRUCTION
OF A MULTI- PURPOSE CENTER, AUTHORIZING THE NEGOTIATION
OF A LOAN IN AN AGGREGATE AMOUNT NOT TO EXCEED
$1,500,000 FROM THE FLORIDA MUNICIPAL LOAN COUNCIL;
APPROVING THE EXECUTION AND DELIVERY OF A LOAN
AGREEMENT WITH THE FLORIDA MUNICIPAL LOAN COUNCIL;
APPROVING THE EXECUTION AND DELIVERY OF A BOND PURCHASE
AGREEMENT; APPROVING THE EXECUTION AND DELIVERY OF A
DISCLOSURE AGREEMENT; PROVIDING CERTAIN OTHER MATTERS
IN CONNECTION WITH THE MAKING OF SUCH LOAN; AND
PROVIDING AN EFFECTIVE DATE. (1St Reading— 12/19/00)
(Mayor Robaina /Comm. Bethel) 3/5
6. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, AMENDING SECTION 15 -74
(PROHIBITION OF DRINKING ALCOHOLIC BEVERAGES IN PUBLIC
PLACES AND CERTAIN PRIVATE PLACES) TO ALLOW PROPERLY
LICENSED AND PERMITTED BUSINESSES WITH APPROVED OUTDOOR
SEATING TO SERVE ALCOHOLIC BEVERAGES; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE
DATE. (tat, Reading - 12/19/00) 3/5
REGULAR CITY COMMISSION 2
AGENDA - January 16, 2001
7. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, AMENDING SECTION 15 -65
(SLEEPING ON STREETS, AVENUES, ETC.) OF THE CODE OF
ORDINANCES OF THE CITY OF SOUTH MIAMI; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE
DATE. (1st Reading 12/19/00) 3/5
RESOLUTION(S)/PUBLIC HEARING(S)
There are none
RESOLUTION (S
8. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH - MIAMI, AUTHORIZING THE CITY MANAGER TO
EXECUTE AN OPTION TO PURCHASE THE VAN SMITH PROPERTY AT
7800 SW 59TH AVENUE FOR USE AS A PASSIVE PARK;
PROVIDING AN EFFECTIVE DATE. *Document to be submitted
ORDINANCE (S) FIRST READING /PUBLIC HEARING(S)
9. AN ORDINANCE OF THE MAYOR' AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO PERMITTED
USES; AMENDING CHAPTER 20 OF THE CITY OF SOUTH MIAMI
LAND DEVELOPMENT CODE, BY REVISING SECTION 20- 3.3(D)
ENTITLED, "PERMITTED USE SCHEDULE- TO REMOVE GASOLINE
SERVICE STATIONS AS A SPECIAL USE IN THE "NR ",
NEIGHBORHOOD RETAIL ZONING DISTRICT; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT, AND PROVIDING AN
EFFECTIVE DATE. 4/5
ORDINANCE (S) FIRST READING
10. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO CONTRACTS
APPROVING THE GROUND LEASE AGREEMENT BETWEEN THE CITY
OF SOUTH MIAMI AND SPG PHASE ONE, LTD., FOR A MIXED
USE /JOINT DEVELOPMENT PARKING GARAGE ON THE MUNICIPAL
PARKING LOT BOUNDED BY SW 73RD STREET ON THE SOUTH, SW
587H AVENUE ON THE EAST, SE 587H COURT ON THE WEST AND
AN ALLEYWAY ON THE NORTH; PROVIDING FOR TERMS AND
CONDITIONS; PROVIDING FOR ORDINANCES IN CONFLICT;
SEVERABILITY AND AN EFFECTIVE DATE. 4/5
REGULAR CITY COMMISSION 3
AGENDA - January 16, 2001
SPEAKERS PLEASE TAKE NOTICE THAT SECTION 2 -2.1 (k) (2) OF
THE CODE OF ORDINANCES PROVIDES THAT "ANY PERSON MAKING
PERSONAL IMPERTINENT, OR SLANDEROUS REMARKS OR WHO
SHALL BECOME BOISTEROUS WHILE ADDRESSING THE COMfISSION
SHALL BE FORTHWITH BARRED FROM FURTHER AUDIENCE BEFORE
THE COUNCIL BY THE PRESIDING OFFICER, UNLESS PERMISSION
TO CONTINUE BE GRANTED BY A MAJORITY VOTE OF THE
COMMISSION."
PUBLIC REMARKS
COMMISSION REMARKS
PURSUANT TO FLA STATUTES 286.0105, "THE CITY HEREBY ADVISES THE PUBLIC THAT IF A PERSON DECIDES
TO 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, AFFECTED PERSON MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS
MADE WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. THIS
NOTICE DOES NOT CONSTITUTES CONSENT BY THE CITY FOR THE INTRODUCTION OR ADMISSION OR OTHERWISE
INADMISSIBLE OR IRRELEVANT EVIDENCE,, NOR DOES IT AUTHORIZE CHALLENGES OR APPEALS NOT OTHERWISE
ALLOWED BY LAW.
REGULAR CITY COMMISSION (�
AGENDA - January 16, 2001
V7
CITY OF SOUTH MIAMI
To: Mayor and Commission Date: January 12, 2001
From: Earl G. Gallop Agenda Item
City Attorney Commission Meeting January 16, 2001
Attorney's Fees Nagin, Gallop and
Figueredo, P.A.
The attached resolution is for Legal Services for the City Attorney in the total amount of
$9,900.49. The accounts are summarized below:
Account Available Balance This Invoice
Consulting — Real Property/Foreclosure $ 17,281.78 $ 858.20
Account # 1500 - 514 -3435
Professional Services -
Account # 608 - 1910- 521 -3100
CRA Fund - General Legal
Account #610 - 1120 -554- 3415
Code Enforcement
Account #1500 -514 -3452
Telecommunications
Account #1500 -514 -3420
Legal Services Non Retainer
Account # 1500 -3410
A detailed Billing Statement is attached.
$ 4,991.01
$ 10,501.36
$ 8,527.50
$ 33,459.07
$ 1,856.06
$ 1,525.69
$ 5,660.54
I RESOLUTION NO.
2
3 A RESOLUTION OF THE MAYOR AND CITY COMMISSION
4 OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
5 ATTORNEYS' FEES; APPROVING ATTORNEYS' FEES FOR
6 NAGIN GALLOP FIGUEREDO, P.A. IN THE AMOUNT OF
7 $9,900.49, OHARGING $1,525.69 TO ACCOUNT NO. 1500 -514-
8 3452, CODE ENFORCEMENT; CHARGING $858.20 TO
9 ACCOUNT NO. 1500 -514 -3435, REAL
10 PROPERTY /FORECLOSURE; CHARGING $5,660.54 TO
11 ACCOUNT NO. 1500 -514 -3410, LEGAL SERVICES, NON -
12 RETAINER; CHARGING $1,856.06 TO ACCOUNT NO. 608-
13 1910 -521 -3100, PROFESSIONAL SERVICES, FORFEITURE;
14 PROVIDING AN EFFECTIVE DATE.
15
16 WHEREAS, the City Commission of the City of South Miami approved
17 Resolution No. 99 -94 -9500, as amended by Resolution No. 217 -97- 10187,
18 authorizing payment of City Attorney non - retainer attorneys' fees and costs; and,
19
20 WHEREAS, Nagin Gallop Figueredo, P.A., submitted invoices to the City
21 for legal services rendered, and costs advanced, for the period ending
22 December 31, 2000, in the amount of $9,900.49; and,_
23
24 WHEREAS, the City Attorney recommends payment of the attached
25 invoices.
26
27 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
28 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
29
30 Section 1. The invoices for attorneys' fees and costs received from
31 Nagin Gallop Figueredo, P.A., in the total amount of $9,900.49, are approved for
32 payinent and charging $1,525.69 to account no. 1500 -514 -3452, code
33 enforcement; charging $858.20 to account no. 1500 -514 -3435, real
34 estate /foreclosure; charging $5,660.54 to account no. 1500 -514 -3410, legal, non -
35 retainer; and charging $1,856.06 to account no. 608 - 1910 - 521 - 3100, forfeitures.
36
37 Section 2. This resolution shall take effect immediately upon approval.
Additions shown by underlining and deletions shown by o °r te.
1
2
PASSED AND ADOPTED this
day of January, 2001.
3
4
ATTEST:
APPROVED:
5
6
7
CITY CLERK
MAYOR
8
9
10
COMMISSION VOTE:
11
READ AND APPROVED AS TO FORM:
Mayor Robaina:
12
Vice Mayor Feliu:
13
Commissioner Wiscombe:
14
CITY ATTORNEY
Commissioner Bethel:
15
Commissioner Russell:
16
17
18
19
20
21
22
23
24
25
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Page 2 of 2
NAGIN GALLOP FIGUEREDO'''
Attorneys & Counselors
3225 Aviation Avenue - Third Floor
Telephone: (305) 854 -5353 Miami, Florida 33133 -4741 Facsimile: (305) 854 -5351
January 12, 2001
Hakeem Oshikoya
Finance Director
CITY OF SOUTH MIAMI
6130 Sunset Drive
South Miami, Florida 33143
Re: STATEMENTS FOR PROFESSIONAL SERVICES
City of South Miami
Dear Mr. Oshikoya:
Enclosed are our statements for professional services rendered and for costs advanced
for the period ending December 31, 2000, in the amount of $9,900.49. I have tabulated the
amounts currently due on each individual file as follows:
0022 -003 Williamson Foreclosure Prof 1 Services $ 600.00
Statement No. 8505 dated 01 /10 /01 Disbursements 49.88
Total Due 649.88
0022 -023 Parking Garage Contract Prof I Services $ 155.00
Statement No. 8506 dated 01/10/01 Disbursements 0.00
Total Due 155.00
0022 -027 Bruce v. Code Enforcement Prof 1 Services $ 1,455.00
Statement No. 8507 dated 01/10/01 Disbursements 70.69
Total Due 1,525.69
0022 -034 CSM v. Third Group Mortgage Prof 1 Services $ 20.00
Statement No. 8508 dated 01 /10 /01 Disbursements 4.32
Total Due 24.32
Hakeem Oshikoya
Finance Director
January 12. 2001
Page 2 of 3
0022 -046 Merrick v. City of South Miami
Statement No. 8510 dated 01 /10 /01
0022 -048 Forfeiture of 1985 Blue Chevy
Statement No. 8511 dated 01 /10 /01
0022 -055 Purchase of 7800 SW 59th Avenue
Statement No. 8514 dated 01 /10 /01
Prof 1 Services
Disbursements
Total Due
Prof 1 Services
Disbursements
Total Due
ProfI Services
Disbursements
Total Due
0022 -058 Astbury, et al. v. CSM (HUD complaint) Prof 1 Services
Statement No. 8515 dated 01 /10 /01 Disbursements
Total Due
0022 -061 NRA, et al. vs. City of South Miami
Statement No. 8517 dated 01/10/01
0022 -066 Forfeiture of 1993 Volvo 940 Turbo
Statement No. 8521 dated 01/10/01
0022 -068 Telecommunications Contracts
Statement No. 8574 dated 01/10/01
0022 -070 CSM v. FDOA
Statement No. 8524 dated 01 /10 /01
0022 -071 Forfeifure of 1994 Chevy S -10
Statement No. 8525 dated 01 /10 /01
Prof 'l Services
Disbursements
Total Due
Prof 1 Services
Disbursements
Total Due
Prof 1 Services
Disbursements
Total Due
Prof 1 Services
Disbursements
Total Due
Prof 1 Services
Disbursements
Total Due
$ 0.00
2.00
2.00
$ 245.00
19.87
264.87
$ 175.00
9.00
184.00
$ 0.00
13.62
13.62
$ 5,010.00
319.42
5,329.42
$ 0.00
7.00
7.00
$ 157.50
0.00
157.50
$ 0.00
3.00
3.00
$ 35.00
198.30
233.30
Hakeem Oshikoya
Finance Director
January 12, 2001
Page 3 of 3
0022 -072 Forfeiture of 1995 Plymouth 2 Prof I Services $ 35.00
Statement No. 8526 dated 01 /10 /01 Disbursements 221.46
Total Due 256.46
0022 -073 Forfeiture of $2,287.00 US Currency Prof 1 Services $ 85.00
Statement No. 8527 dated 01110101 Disbursements 24.65
Total Due 109.65
0022 -075 Forfeiture of 2000 Audi Coupe Prof I Services $ 715.00
Statement No. 8529 dated 01 /10 /01 Disbursements 269.78
Total Due 984.78
CURRENT TOTAL DUE $ 99900.49
Do not hesitate to call me if you have any questions regarding these statements.
Very truly yours,
Earl G. Gallop
EGG:daj
Enclosures
cc: Mayor and City Commission
CITY OF SOUTH MIAMI
6130 Sunset Drive, South Miami, Florida 33143
Vendor: NAGIN GALLOP & FIGUEREDO, P.A. Req. No. 48
Date: January 12, 2001
Finance Department
Item
No.
Quantity
Description and
Specifications
Account Number
Unit Price
Total
1 '
1
Code Enforcement
1500 -514 -3452
1,525.69
1,525.69
2
6;
Forfeitures
608- 1910 - 521 -3100
1,856.06
1,856.06
3
6
Legal, Non - Retainer
1500 -514 -3410
5,660.54
5,660.54
4
3
Real Estate /Foreclosure
1500 -514 -3435
858.20
858.20
TOTAL
$9,900.49
Purchase Order No.
I Terms /Discount
I Hereby Certify That The
Above Material, Equipment,
Or Service Is Essential And A
Proper Request Against The
Coding of Accounts
Purchases as Above Approved
and Issuance of Purchase Order
Authorized
Codes Charge Sufficiency of Appropriation
Balances Verified (Except As
Otherwise Noted)
Head of Department Finance Department City Manager
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
For Professional Services
For Disbursements Incurred
Current Balance:
Previous Balance:
Payments - Thank you
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter 1D: 0022 -002
Real Estate
Statement No. 8573
Total Due
To be properly credited, please indicate Statement Number on your remittance check.
1 1'
ri 11
0.00
427.60
0.00
427.60
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimiie: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -003
Finance Director
Williamson Foreclosure
City of South Miami
6130 Sunset Drive Statement No. 8505
City of South Miami, FL 33143
Rate Summary
Eve A. Boutsis
Total Professional Services 600.00
4.00 hours at $150.00 /hr 600.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours Amount
12/05/2000 EAB
Telephone conference with Mr. Hennefield, who represents heir,
0.30 45.00
L.D. Kennedy, a grandson, of Marshall Williamson regarding his
remainder interest, and his advice that he he probably will not file
an appearance as there is no real interest that would benefit his
client due to tax certificates, liens, municipal liens, special
assessments, etc.
12/07/2000 EAB
Prepared letters to various purported heirs that have become
2.50 375.00
"known" and requesting them to agree to ex parte motion to
substitute real parties in interest (for deceased named parties); and
modified the amended ex parte motion for substitution of parties;
continued legal research on case law for lien priority between heirs
and city.
12/11/2000 EAB
Telephone conference with Mr. Perry regarding heirs to estate:
0.30 45.00
Janice Dantzeler and Pamela Williams, Mr. Perry's daughters that
live with him; and added their names to the substitution of parties,
due to suggestion of death motion.
12/13/2000 EAB
Telephone conference with Ms. Williams regarding Dade County
0.40 60.00
sale of the property for nonpayment of taxes; telephone conference
with Mr. Lawrence Kennedy regarding his receipt of certified letter
acknowledging substitution of parties, and his opinion that no one
would pay for the taxes owed.
12/19/2000 EAB
Telephone conference with Ms. Williams, Mr. Lawrence Kennedy,
0.50 75.00
Mr. Perry regarding status of action, consent to motion to
substitute parties and request for current address of Frederick
Kennedy.
Rate Summary
Eve A. Boutsis
Total Professional Services 600.00
4.00 hours at $150.00 /hr 600.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -003 Statement No.: 8505 Page: 2
Expenses
Total hours: 4.00
Photocopies
Postage Charge
Telefacsimile charge
21.50
23.38
5.00
Sub -total Expenses: 49.88
Payments
12/06/2000 Payment Ck #30081 ($31092.50) 300.01
Sub -total Payments: 300.01
For Professional Services
For Disbursements Incurred
Current Balance:
Previous Balance:
Payments - Thank you
Total Due
To be properly credited, please indicate Statement Number on your remittance check.
600.00
49.88
649.88
460.85
300.01
810.72
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGINGALLOPFIGUEREDO`A
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
January 10, 2001
Hakeem Oshikoya
Finance Director Matter ID: 0022 -023
City of South Miami
Parking garage contract
6130 Sunset Drive Statement No. 8506
City of South Miami, FL 33143
Hours Amount
12/01/2000 LRF Telephone status conferences with Mr. Perez and Mr McCardle 0.50 87.50
regarding SPG lease revisions.
12/04/2000 EAB Telephone conference with Mr. Perez requesting status of SPG 0.10 15.00
Lease.
12/11/2000 LRF Telephone conference with Mr. Ralph Perez regarding status of 0.30 52.50
modifications to lease agreement.
Total Professional Services 155.00
Rate Summary
Eve A. Boutsis 0.10 hours at $150.00 /hr 15.00
Luis R. Figueredo 0.80 hours at $175.00/hr 140.00
Total hours: 0.90
Payments
12/06/2000 Payment Ck#30081 ($31092.50) 2,149.50
Sub -total Payments: 2,149.50
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
I
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -023 Statement No.: 8506 Page: 2
For Professional Services 155.00
For Disbursements Incurred 0.00
Current Balance:
Previous Balance:
Payments - Thank you
Total Due
To be properly credited, please indicate Statement Number on your remittance check.
155.00
2,972.00
2,149.50
977.50
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDORA.
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -027
Finance Director
Bruce v. Code Enforcement
City of South Miami
6130 Sunset Drive Statement No. 8507
City of South Miami, FL 33143
Rate Summary
Eve A. Boutsis
Expenses
Total Professional Services 1,605.00
Discount: - 150.00
10.70 hours at $150.001hr
Total hours: 10.70
Photocopies
Postage Charge
12/31/2000 Service of Process
1,605.00
37.00
8.69
25.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours Amount
12/0412000 EAB
Prepared requests for admissions to Jane E. Bruce, Joseph M.
3.00 450.00
Bruce, subpoena duces tecum to non party Systems 1, Inc;
continued preparing interrogatories and requests for production to
defendants; began analysing Defendant's motion for summary
judgment.
12/07/2000 EAB
Final preparation of requests for production, admissions,
0.70 105.00
interrogatories and subpoena duces tecum to System 1, Inc;
received police surveillance report which reflects company vehicles
on site.
12/26/2000 EAB
Prepared affidavits for Ms. Rosa, Ms. Lama, Mr. Lorber, Sargent
6.00 900.00
Rodriguez, and Mayor Robaina et al, in opposition to Bruce's
motion for summary judgment, various telephone conferences with
Ms. Rosa, Ms. Lama, Mr. Lorber, and AC Feldman.
12/26/2000 EAB
Continued to revise affidavits and various telephone conferences
1.00 150.00
with Ms. Lama, Mayor Robaina, and Ms. Rosa.
Rate Summary
Eve A. Boutsis
Expenses
Total Professional Services 1,605.00
Discount: - 150.00
10.70 hours at $150.001hr
Total hours: 10.70
Photocopies
Postage Charge
12/31/2000 Service of Process
1,605.00
37.00
8.69
25.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
J
J
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -027 Statement No.: 8507 Page: 2
Payments
12/06/2000
Sub -total Expenses: 70.69
Payment Ck #30081 ($31092.50) 475.49
Sub -total Payments: 475.49
For Professional Services 1,455.00
For Disbursements Incurred 70.69
Current Balance: 1,525.69
Previous Balance: 565.49
Payments - Thank you 475.49
Total Due 1,615.69
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGINT GALLOP FIGUEREDO`A
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
January 10, 2001
Hakeem Oshikoya
Finance Director Matter ID: 0022 -034
City of South Miami
CSM v. Third Group Mortage,
6130 Sunset Drive Statement No. 8508
City of South Miami, FL 33143
Hours Amount
12/06/2000 KA Delivered file to Eva Rosa at CSM's City Hall and picked up letters 0.50 10.00
for EGG at Ronetta's office.
12/06/2000 KA 0.50 10.00
Total Professional Services 20.00
Rate Summary
Karina Arguello 1.00 hours at $ 20.00 /hr 20.00
Total hours: 1.00
Expenses
Postage Charge 1.32
Mileage 3.00
Sub -total Expenses: 4.32
Payments
12/06/2000 Payment Ck #30081 ($31092.50) 73.52
Sub -total Payments: 73.52
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -034 Statement No.: 8508 Page: 2
For Professional Services 20.00
For Disbursements Incurred 4.32
Current Balance:
24.32
Previous Balance: 634.72
Payments - Thank you 73.52
Total Due 585.52
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
Payments
12/06/2000 Payment Ck #30081 ($31092.50)
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter ID: 0022 -043
Forfeiture of 1993 White Ford
Statement No. 8509
Sub -total Payments:
70.99
70.99
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance:
0.00
Previous Balance: 70.99
Payments - Thank you 70.99
Total Due 0.00
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT- PRIVILEGED
NAGIN GALLOP FIGUEREDOi'
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -046
Finance Director
City of South 'Miami Merrick v. City of South Miami
6130 Sunset Drive Statement No. 8510
City of South Miami, FL 33143
Expenses
Telefacsimile charge
For Professional Services
For Disbursements Incurred
Current Balance:
Previous Balance:
Payments - Thank you
2.00
Sub -total Expenses: 2.00
II
r 11
2.00
0.00
0.00
Total Due 2.00
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
0
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDO`A
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Finance Director Matter ID: 0022 -048
City of South Miami Forfeiture of 1985 Blue Chevy
6130 Sunset Drive Statement No. 8511
City of South Miami, FL 33143
Rate Summary
Karina Arguello
Eve A. Boutsis
Expenses
Total Professional Services 245.00
0.75 hours at $ 20.00 /hr
2.30 hours at $100.00 /hr
Total hours: 3.05
Postage Charge
Photocopies
Parking Charge
15.00
230.00
1.87
5.00
10.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours Amount
12/04/2000 EAB
Telephone conference with AC Feldman regarding status of this
0.10 10.00
action, letter received from claimant, and possibility of obtaining
default against claimant, and /or settlement based on return of
equipment in vehicle in exchange for forfeiture.
12/05/2000 EAB
Received communication from claimant asking for assistance and
0.20 20.00
providing information as to prior independent contracts he entered
into for construction employment.
12/07/2000 KA
Searched for and copied plea agreement at USDC.
0.75 15.00
12/13/2000`` EAB
Prepared motion to strike pleadings for failure to comply with
1.00 100.00
November 27, 2000 discovery order, or in alternative motion for final
summary judgment.
12/18/2000 EAB
Final preparation of motion for final summary judgment or in
1.00 100.00
alternative motion to strike and prepared exhibits to pleading.
Rate Summary
Karina Arguello
Eve A. Boutsis
Expenses
Total Professional Services 245.00
0.75 hours at $ 20.00 /hr
2.30 hours at $100.00 /hr
Total hours: 3.05
Postage Charge
Photocopies
Parking Charge
15.00
230.00
1.87
5.00
10.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
9
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEYICLIENT PRIVILEGED
Matter ID: 0022 -048 Statement No.: 8511 Page: 2
Payments
12/06/2000
Mileage 3.00
Sub -total Expenses: 19.87
Payment Ck #30081 ($31092.50) 2.42
Sub -total Payments: 2.42
For Professional Services
For Disbursements Incurred
Current Balance:
Previous Balance:
Payments - Thank you
Total Due
To be properly credited, please indicate Statement Number on your remittance check.
245.00
19.87
264.87
132,52
2,42
394.97
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDO`A.
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter 1D: 0022 -052
Finance Director
CSM v. Johnny Jackson
City of South Miami
6130 Sunset Drive Statement No. 8512
City of South Miami, FL 33143
Payments
12/06/2000 Payment Ck #30081 ($31092.50)
227.09
Sub -total Payments: 227.09
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance: 0.00
Previous Balance: 261.25
Payments - Thank you 227.09
Total Due 34.16
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
Payments
12/06/2000 Payment Ck #30081 ($31092.50)
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter ID: 0022 -054
Forfeiture of 2000 Honda
Statement No. 8513
-no] 100.1
Sub -total Payments: 80.66
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance: 0.00
Previous Balance: 202.66
Payments - Thank you 80.66
Total Due 122.00
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
a
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUERED0RA.
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10,2001
Matter ID: 0022 -055
Finance Director Purchase of 7800 SW 59th
City of South Miami
6130 Sunset Drive Statement No. 8514
City of South Miami, FL 33143
Hours Amount
12/01/2000 LRF Finalized option agreement to incorporate changes resulting from 1.00 175.00
meeting with sellers and legal counsel.
Rate Summary
Luis R. Figueredo
Expenses'
Payments
12/06/2000
Total Professional Services 175.00
1.00 hours at $175.00/hr
Total hours: 1.00
Telefacsimile charge
175.00
9.00
Sub -total Expenses: 9.00
Payment Ck #30081 ($31092.50) 0.55
Sub -total Payments: 0.55
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -055 Statement No.: 8514 Page: 2
For Professional Services 175.00
For Disbursements Incurred 9.00
Current Balance: 184.00
Previous Balance: 193.05
Payments - Thank you 0.55
Total Due 376.50
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
Expenses
Postage Charge
Photocopies
For Professional Services
For Disbursements Incurred
Current Balance:
Previous Balance:
Payments - Thank you
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter ID: 0022 -058
Astbury, et al. v. CSM
Statement No. 8515
1.87
11.75
Sub -total Expenses: 13.62
0.00
13.62
13.62
0.00
0.00
Total Due 13.62
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDO`A
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID.- 0022 -059
Finance Director
Habitat for Humanity v. Mary
City of South Miami
6130 Sunset Drive Statement No. 8516
City of South Miami, FL 33143
Payments
12/0612000 Payment Ck #30081 ($31092.50) 61.10
Sub -total Payments: 61.10
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance: 0.00
Previous Balance: 61.10
Payments - Thank you 61.10
Total Due 0.00
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
I
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAG IN GALLOP FIGUEREDO`A
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -061
Finance Director
NRA, et al. vs. City of South
City of South Miami
6130 Sunset Drive Statement No. 8517
City of South Miami, FL 33143
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours Amount
12/05/2000 EGG
Final preparation of response to petition for writ of certiorari and
5.00 875.00
further questions of the district court of appeal
12/06/2000 EAB
Analyzed Buckley v. Valeo for court's analysis of issue on
1.00 150.00
associational standing, first amendment protection and what is
sufficient evidence to show harm.
12/06/2000 EGG
Assembled oral argument notebook.
0.60 105.00
12/06/2000 EGG
Reviewed NRA's responses to city's motions for summary
1.00 175.00
judgment, to amicus curiae brief of the attorney general, and
motion to consolidate hearings on preliminary and permanent
injunction.
12/07/2000 EAB
Legal research on interpretation of statutory language as expansive
2.50 375.00
for "Included but not limited to;" research on cases interpreting
possession of a firearm.
12/07/2000 EGG
Prepared response to NRA's motion for temporary and permanent
6.00 1,050.00
injunction; analyzed decisional authorities.
12/08/2000 EAB
Conducted treatise and westlaw research on definition of "included
4.50 675.00
but not limited to" in both federal and multi state databases;
proofed finalized motion in opposition; legal research for various
citations requested by Mr. Gallop, including sec. 790.33,
790.173 -174, 784.05, Fla. Stat., cases cited in NRA motion:
Rinzler v. Carson, 262 So.2d 661 [preemption - shepardize for
similar, dissimilar cases]; State v. Wilchinskik 242 Conn. 211, 700
A.2d 1; and American Charities v. Pinellas County, 13 FLW Fed
C977 [pre enforcement review].
12/08/2000 EGG
Final preparation of response to NRA motion temporary and
3.50 612.50
permanent injunction.
12/10/2000 EGG
Prepared for oral argument in certiorari proceeding.
2.00 350.00
12/11/2000 KA
Filed response to motion for temporary injunction.
0.50 10.00
12/11/2000 EGG
Prepared for and attended oral argument in certiorari proceeding.
3.50 612.50
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -061 Statement No.: 8517 Page: 2
12/13/2000 KA Filed re- notice of hearing, hand delivered envelope to Judge 1.00 20.00
Wilson's office, and picked up an ordinance at the Clerk of the
Board's office.
Total Professional Services
Rate Summary
Karina Arguello 1.50 hours at $ 20.00 /hr 30.00
Eve A. Boutsis 8.00 hours at $150.00 /hr 1,200.00
Earl G. Gallop 21.60 hours at $175.00 /hr 3,780.00
Total hours: 31.10
Expenses
Sub -total Payments: 4,282.83
5,010.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Courier charge
32.90
Parking Charge
12.00
Telefacsimile charge
15.00
Legal research
70.22
Photocopies
123.75
Mileage
3.00
Postage Charge
5.17
12/07/2000
Outside copy job
2.00
12/19/2000
Federal express
13.26
12/19/2000
Federal express
15.60
12/19/2000
Federal express
13.26
12/26/2000
Federal express
13.26
Sub -total Expenses:
319.42
Payments
12/06/2000
Payment Ck #30081 ($31092.50)
4,282.83
Sub -total Payments: 4,282.83
5,010.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRMLEGED
Matter ID: 0022 -061 Statement No.: 8517 Page: 3
For Professional Services 5,010.00
For Disbursements Incurred 319.42
Current Balance:
Previous Balance:
Payments - Thank you
Total Due
To be properly credited, please indicate Statement Number on your remittance check.
5,329.42
10,093.51
4,282.83
11,140.10
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDO PA.
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
Payments
12/06/2000 Payment Ck #30081 ($31092.50)
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter ID: 0022 -063
City Hall Project
Statement No. 8518
87.50
Sub -total Payments: 87.50
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance: 0.00
Previous Balance: 140.00
Payments - Thank you 87.50
Total Due 52.50
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGINT GALLOP FIGUEREDOPA.
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
Payments
12/06/2000 Payment Ck #30081 ($31092.50)
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter ID: 0022 -064
Water Main Extension
Statement No. 8519
1,960.00
Sub -total Payments: 1,960.00
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance: 0.00
Previous Balance: 2,240.00
Payments - Thank you 1,960.00
Total Due 280.00
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -065
Finance Director
Forfeiture: 1995 International Box
City of South Miami
6130 Sunset Drive Statement No. 8520
City of South Miami, FL 33143
Payments
12/06/2000
Payment Ck #30081 ($31092.50) 142.11
Sub -total Payments: 142.11
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance: 0.00
Previous Balance: 564.87
Payments - Thank you 142.11
Total Due 422.76
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Finance Director
Matter ID: 0022 -066
City of South Miami
Forfeiture: 1993 Volvo 940 Turbo
6130 Sunset Drive Statement No. 8521
City of South Miami, FL 33143
Expenses
Parking Charge 7.00
Sub -total Expenses: 7.00
Payments
12/06/2000 Payment Ck #30081 ($31092.50) 131.65
Sub -total Payments: 131.65
For Professional Services 0.00
For Disbursements Incurred 7.00
Current Balance:
7.00
Previous Balance: 218.63
Payments - Thank you 131.65
Total Due 93.98
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
I
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUERED0BA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -068
Finance Director
Telecommunications Contracts
City of South Miami
6130 Sunset Drive Statement No. 8574
City of South Miami, FL 33143
Hours Amount
12/1/2000 LRF Reviewed and revised draft of lease agreement with Nextel. 0.90 157.50
Telephone conference with Nextel legal counsel. Telephone
conference with Mr. Basu to discuss proposed modifications to
draft lease agreement.
Rate Summary
Luis R. Figueredo
Payments
12/6/2000 Payment
Total Professional Services 157.50
0.90 hours at $175.00/hr
Total hours: 0.90
Ck #30081 ($31092.50)
157.50
472.50
Sub -total Payments: 472.50
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -068 Statement No.: 8574 Page: 2
For Professional Services 157.50
For Disbursements Incurred 0.00
Current Balance: 157.50
Previous Balance: 472.50
Payments - Thank you 472.50
Total Due 157.50
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOVA.
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter ID: 0022 -069
Forfeiture of $23,020.00 US
Statement No. 8523
Payments
12/06/2000 Payment Ck #30081 ($31092.50) 2.98
Sub -total Payments: 2.98
For Professional Services 0.00
For Disbursements Incurred 0.00
Current Balance: 0.00
Previous Balance: 2.98
Payments - Thank you 2.98
Total Due 0.00
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys c Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -070
Finance Director
CSM v. FDOA
City of South Miami
6130 Sunset Drive Statement No. 8524
City of South Miami, FL 33143
Expenses
Parking Charge 3.00
Sub -total Expenses: 3.00
Payments
12/06/2000 Payment Ck #30081 ($31092.50) 20,521.60
Sub -total Payments: 20,521.60
For Professional Services
For Disbursements Incurred
Current Balance:
Previous Balance:
Payments - Thank you
Total Due
To be properly credited, please indicate Statement Number on your remittance check.
0.00
3.00
3.00
20,418.60
20,521.60
- 100.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -071
Finance Director
City of South Miami Forfeiture of 1994 Chevy S -10
6130 Sunset Drive Statement No. 8525
City of South Miami, FL 33143
Sub -total Payments: 50.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours
Amount
12/04/2000
EAB Prepared ex parte order on preliminary probable cause and letter to 0.30
30.00
judge enclosing motion, affidavit, complaint, and order.
12/06/2000
KA Hand delivered ex parte order to judge's chambers
0.25
5.00
Total Professional Services
35.00
Rate Summary
Karina Arguello 0.25 hours at $ 20.00 /hr
5.00
Eve A. Boutsis 0.30 hours at $100.00 /hr
30.00
Total hours: 0.55
Expenses
Photocopies
9.50
Parking Charge
2.00
12/19/2000
Advertisement for Forfeiture
186.80
Sub -total Expenses:
198.30
Payments
12/06/2000
Payment Ck #30081 ($31092.50)
50.00
Sub -total Payments: 50.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -071 Statement No.: 8525 Page: 2
For Professional Services 35.00
For Disbursements Incurred 198.30
Current Balance: 233.30
Previous Balance: 597.38
Payments - Thank you 50.00
Total Due 780.68
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice, interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
3
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -072
Finance Director
Forfeiture of 1995 Plymouth 2
City of South Miami
6130 Sunset Drive Statement No. 8526
City of South Miami, FL 33143
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours
Amount
12/04/2000
EAB Prepared ex parte order on preliminary probable cause and letter to 0.30
30.00
judge enclosing motion, affidavit, complaint, and order.
12/06/2000
KA Hand delivered ex parte order to judge's chambers.
0.25
5.00
Total Professional Services
35.00
Rate Summary
Karina Arguello 0.25 hours at $ 20.00 /hr
5.00
Eve A. Boutsis 0.30 hours at $100.00 /hr
30.00
Total hours: 0.55
Expenses
Parking Charge
5.00
Photocopies
10.50
Legal research
5.98
Postage Charge
1.98
12/19/2000
Advertisement for Forfeiture
198.00
Sub -total Expenses:
221.46
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -072 Statement No.: 8526 Page: 2
For Professional Services 35.00
For Disbursements Incurred 221.46
Current Balance: 256.46
Previous Balance: 711.50
Payments - Thank you 0.00
Total Due 967.96
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -073
Finance Director
Forfeiture of $2,287.00 US
City of South Miami
6130 Sunset Drive Statement No. 8527
City of South Miami, FL 33143
Rate Summary
Karina Arguello
Eve A. Boutsis
Expenses
Total Professional Services 85.00
0.25 hours at $ 20.00 /hr
0.80 hours at $100.00 /hr
Total hours: 1.05
Photocopies
Telefacsimile charge
Postage Charge
Parking Charge
5.00
80.00
12.00
9.00
1.65
2.00
Sub -total Expenses: 24.65
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours
Amount
12/04/2000
EAB
Prepared answer and affirmative defenses; prepared letter to Ms.
0.40
40.00
Eva Rosa requesting her to calculate interest on City's lien.
12/04/2000
EAB
Prepared ex parte order on preliminary probable cause and letter to
0.30
30.00
judge enclosing motion, affidavit, complaint, and order.
12/05/2000
EAB
Telephone conference with AC Feldman regarding criminal history
0.10
10.00
of claimant.
12/06/2000
KA
Hand delivered ex parte orders to judge's chambers.
0.25
5.00
Rate Summary
Karina Arguello
Eve A. Boutsis
Expenses
Total Professional Services 85.00
0.25 hours at $ 20.00 /hr
0.80 hours at $100.00 /hr
Total hours: 1.05
Photocopies
Telefacsimile charge
Postage Charge
Parking Charge
5.00
80.00
12.00
9.00
1.65
2.00
Sub -total Expenses: 24.65
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
d
t
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -073 Statement No.: 8527 Page: 2
For Professional Services 85.00
For Disbursements Incurred 24.65
Current Balance: 109.65
Previous Balancer 507.46
Payments - Thank you 0.00
Total Due 617.11
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NAGIN GALLOP FIGUEREDOPA
Attorneys & Counselors
3225 Aviation Avenue, Suite 301
Telephone: (305) 854 -5353
Hakeem Oshikoya
Finance Director
City of South Miami
6130 Sunset Drive
City of South Miami, FL 33143
For Professional Services
For Disbursements Incurred
Current Balance:
Previous Balance:
Payments - Thank you
Miami, Florida 33133
Facsimile: (305) 854 -5351
January 10, 2001
Matter ID: 0022 -074
Midfirst Bank v. Lonon, et al.
Statement No. 8528
Total Due
To be properly credited, please indicate Statement Number on your remittance check.
1 11
2.00
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
I
CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
NTAGIN GALLOP FIGUEREDOPA
Attorneys Fa Counselors
3225 Aviation Avenue, Suite 301 Miami, Florida 33133
Telephone: (305) 854 -5353 Facsimile: (305) 854 -5351
Hakeem Oshikoya January 10, 2001
Matter ID: 0022 -075
Finance Director
Forfeiture of 2000 Audi Coupe
City of South Miami
6130 Sunset Drive Statement No. 8529
City of South Miami, FL 33143
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
Hours Amount
12/04/2000
EAB Telephone conference with AC Feldman regarding proposed new
0.10 10.00
forfeiture action regarding 2000 Audi.
12/04/2000
EAB Telephone conference with AC Feldman regarding new forfeiture
0.40 40.00
action, One 2000 Audi, 2 door convertible; no liens, and $1,004 US
Currency; analyzed police report and prepared notice of seizure.
12/05/2000
EAB Received message from AC Feldman that new claimant in 2000
0.20 20.00
Audi case has been released on bond and notice of seizure is to be
served at last known registered address for vehicle; telephone
conference with AC Feldman regarding criminal history on
claimant.
12/05/2000
EAB Began preparing complaint and probable cause motion; analyzed
2.50 250.00
police report on prior criminal record of sole claimant, Mr.
Ackelsberg.
12/06/2000
EAB Continued drafting various pleadings and discovery requests in the
2.50 250.00
forfeiture action including revisions to probable cause motion;
interrogatories and requests for production; research on forfeiture
cases for possession of currency and crack cocaine.
12/06/2000
EAB Filed amended notice of seizure to correct currency amount only.
0.10 10.00
12/07/2000
EAB Telephone conference with AC Feldman regarding counsel for
0.20 20.00
claimant and possible release of vehicle and valuation of vehicle.
12/11/2000
EAB Telephone conference with Frank Rubino, counsel for Mr.
0.30 30.00
Ackelsberg regarding possible settlement and request for
preliminary probable cause hearing.
12/12/2000
KA Had the summons issued by the clerk; filed the complaint, motion
0.75 15.00
and incorporated memorandum of law on preliminary probable
cause, verified affidavit, first request for production, and notice of
serving interrogatories.
12/12/2000
EAB Final preparation of complaint and other pleadings for filing.
0.20 20.00
12/18/2000
EAB Telephone conferences with Judge's judicial assistant regarding
0.50 50.00
hearing scheduled for 12/19/00, with AC Feldman and officers
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
9
Nagin Gallop Figueredo P.A. CONFIDENTIAL - ATTORNEY /CLIENT PRIVILEGED
Matter ID: 0022 -075 Statement No.: 8529 Page: 2
regarding hearing, and with opposing counsel in which he
authorized cancellation of hearing and rescheduling of hearing to
after holidays; prepared letter to judge cancelling hearing.
Total Professional Services 715.00
Rate Summary
Karin@ Arguello 0.75 hours at $ 20.00 /hr
15.00
Eve A. Boutsis 7.00 hours at $100.00 /hr
700.00
Total hours: 7.75
Expenses
Postage Charge
7.28
Telefacsimile charge
18.00
Filing fee
176.00
Mileage
8.00
Parking Charge
3.00
Photocopies
27.50
12/31/2000 Service of Process
30.00
Sub -total Expenses: 269.78
For Professional Services 715.00
For Disbursements Incurred 269.78
Current Balance: 984,78
Previous Balance: 0.00
Payments - Thank you 0.00
Total Due 984.78
To be properly credited, please indicate Statement Number on your remittance check.
Payment is due upon receipt. Please notify us within 10 days of receipt of any questions you have regarding this invoice. Interest at a
rate of 1.5% per month will be charged if payment is not received within 30 days.
CITY OF SOUTH MIAMI
INTER- OFFICE MEMORANDUM
To: Mayor and City Commission Date: J h u a�^y =1 � 0 01
From: Charles D. Scurr Re: AGENDA ITEM #
City Manager Commission meeting _ -_J. _. -1,-6-,, 2001
Multipurpose Center Funding
REQUEST
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO MATCHING FUNDS
FOR SAFE- NEIGHBORHOOD PARK GRANT FOR CONSTRUCTION OF A
MULTI - PURPOSE CENTER, AUTHORIZING THE NEGOTIATION OF A
LOAN IN AN AGGREGATE AMOUNT NOT TO EXCEED $1,500,000 FROM
THE FLORIDA MUNICIPAL LOAN COUNCIL; APPROVING THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT WITH THE
FLORIDA' MUNICIPAL LOAN COUNCIL; APPROVING THE EXECUTION
AND DELIVERY OF A BOND PURCHASE AGREEMENT APPROVING
THE EXECUTION AND DELIVERY OF A DISCLOSURE AGREEMENT;
PROVIDING CERTAIN OTHER MATTERS IN CONNECTION WITH THE
MAKING OF SUCH LOAN; AND PROVIDING AN EFFECTIVE DATE.
BACKGROUND & ANALYSIS
In 1998, the City was awarded a grant of about $1,500,000, by the Safe Neighborhood Park Agency to
construct a multi- purpose center in our Murray Park. The first phase of the construction is almost
completed and we are about to begin Phase II. Release of the grant funds requires a dollar for dollar
match, and contingent upon the City utilizing its own match before the Agency releases its own. In the
past, the City Commission has expressed its wish for the City to seek funding for the City match from
outside source. The City administration has found a means of financing the match through the Florida
Municipal Loan Council. This council administers a loan program with a variable rate revolving loan
pool uniquely designed for Florida local governments. Funding for the program is through a AAA rated
tax - exempt bond issue administered by the Florida League of Cities on behalf of local governments in
order to achieve better economies of scale. The program was created pursuant to Chapter 163, part 1, of
Florida State statutes, for the purpose of issuing the bonds. Some of the advantages of using this funding
source include:
a) Pre - payment of loan on a 30 -day notice, without penalty. The City gets the benefit of long -term tax
exempt funding with a short pre- payment option.
b) Substantially lower cost of financing than traditional financing alternatives.
c) Historically lower rate of interest compared to other fixed rates financing instruments.
The attached ordinance authorizes the City Manager to enter into an agreement with the Florida
Municipal Loan Council on behalf of the City to obtain funding for the $1,500,000 matching funds. As
previously expressed by the City Commission to utilize the $150,000 annual contribution from the South
Miami Hospital towards repayment of this loan, a separate resolution will be presented for your approval
at the next Commission meeting.
Approval of the ordinance will allow the City to move into the next stage of the construction.
Your approval is recommended
1 ORDINANCE NO.
2
3 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
4 OF SOUTH MIAMI, FLORIDA, RELATING TO MATCHING FUNDS FOR
5 SAFE- NEIGHBORHOOD PARK GRANT FOR CONSTRUCTION OF A MULTI -
6 PURPOSE CENTER, AUTHORIZING THE NEGOTIATION OF A LOAN IN AN
7 AGGREGATE AMOUNT NOT TO EXCEED $1,500,000 FROM THE FLORIDA
8 MUNICIPAL LOAN COUNCIL; APPROVING THE EXECUTION AND
9 DELIVERY OF A LOAN AGREEMENT WITH THE FLORIDA MUNICIPAL
10 LOAN COUNCIL; APPROVING THE EXECUTION AND DELIVERY OF A
11 BOND PURCHASE AGREEMENT APPROVING THE EXECUTION AND
12 DELIVERY OF A DISCLOSURE AGREEMENT; PROVIDING CERTAIN
13 OTHER MATTERS IN CONNECTION WITH THE MAKING OF SUCH LOAN;
14 AND PROVIDING AN EFFECTIVE DATE.
15
16 WHEREAS, participating governmental units (the "Members ") have created the Florida
17 Municipal Loan Council ( the "Council') pursuant to a certain Inter -local Agreement and pursuant
18 to Chapter 163, Part 1, Florida Statutes, for the purpose of issuing its bonds to make loans to
19 participating governmental units for qualified projects; and
20
21 WHEREAS, the City of South Miami, Florida, a municipal corporation, is duly created and
22 existing pursuant to the Constitution and laws of the State of Florida (the "State "); and
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24 WHEREAS, the City finds and declares that there is a substantial need for the financing or
25 refinancing of qualifying projects permitted by Florida Statutes and the State Constitution; and
26
27 WHEREAS, the City possesses the ability to finance such projects on its own, but has
28 determined that a pooled financing program involving a limited number of local governmental units
29 which regularly undertake projects requiring significant debt financing within the State of Florida
30 , would provide for low cost financing' or refinancing' of such projects through economies of scale,
31 administrative support and access to expertise in accessing the capital markets; and
32
33 WHEREAS, it is anticipated that the benefits of a pooled financing by the City with a limited
34 number of governmental units through the Florida Municipal Loan Council may be obtained through
35 promises to repay loans under the program and supported by a general covenant to budget and
36 appropriate for such purpose, by a specific pledge of taxes or revenues or by a general obligation;
37 and
38
39 WHEREAS, by pooling the respective financial needs of these certain various local
40 governmental units, the City will be able to access additional markets and expects to receive the
41 benefits of lower interest rates on more favorable terms associated with such a large scale financing
42 with such benefits being obtained for and inuring to the City; and
43
i
WHEREAS, the Council is in the process of issuing its Florida Municipal Loan Council
Revenue Bonds, Series 2001A (the 'Bonds ") and is seeking to make loans (the "Loans ") to
governmental units; and
WHEREAS, it is hereby determined that a need exists to borrow funds to finance the
construction of Phase II of the Murray Park Multi- Purpose Center as previously approved by the
City Commission; and
WHEREAS, it is determined to be in the best interest of the City to borrow funds from the
Council from the proceeds of the Bonds to finance the cost of the Project.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA as follows:
SECTION 1. AUTHORITY. This Ordinance is adopted pursuant to Chapter 166, Florida
Statutes and other applicable provisions of law.
SECTION 2. PROJECT. The refinancing and /or financing of the construction of the
multi- purpose center is hereby approved.
SECTION 3. NEGOTIATED LOAN. Due to the complicated nature of the financing and
the ability of the Council to access additional markets and for the City to receive the benefits of
lower interest rates and issuance costs, it is hereby determined that it is in the best interest of the City
that the Loan to the City be made from the proceeds of the Bonds, as opposed to the City borrowing
funds pursuant to a public sale.
SECTION 4. LOAN AMOUNT. The amount of the Loan of the City evidenced by the
Loan Agreement shall not exceed $1,500,000. Such Loan shall be made at a discount which shall
include a pro -rata portion of costs of issuance incurred by the Council together with a pro -rata
portion of a reserve fund surety cost and the League of Cities administrative fees and other ongoing
costs and shall bear interest and shall be repayable according to the terms and conditions set forth
in the Loan Agreement authorized pursuant to Section 5 hereof with such changes, insertions and
omissions as may be approved by the City Manager. The redemption provisions, if any, relating to
such Loan shall be as provided in the Loan Agreement.
SECTION 5. AUTHORIZED OFFICERS. The City Manager is hereby authorized and
directed to execute and deliver a Loan Agreement to evidence the Loan, to be entered into by and
between the City and the Council.
Further, the City Manager is hereby authorized and directed to execute and deliver a
Continuing Disclosure Agreement concerning compliance with existing or proposed rules of the
_2
Securities and Exchange Commission concerning continuing disclosure by the City, to be entered
into by and between the Underwriter, the City and the Council.
SECTION 6. RATES. The City Manager is hereby authorized to approve the final rates
of interest on the Bonds, and the redemption provisions thereof, if any, on behalf of the Borrower.
The City Manager is hereby authorized and directed to execute and deliver a Bond Purchase
Agreement, to be entered into by and between the Underwriter, the City and the Council.
SECTION 7. INDENTURE. The City hereby acknowledges and consents to the Bonds
being issued pursuant to a Trust Indenture (the`AIndenture_) to be executed by the Council and a
bank or trust company to be selected as Trustee, by the Council.
SECTION 8. OTHER INSTRUMENTS. The City Manager is hereby authorized and
directed to execute any and all certifications or other instruments or documents required by this
Resolution, the Loan Agreement, the Trust Indenture or any other document required by the Council
as a prerequisite or precondition to making the Loan (including but not limited to the execution of
all tax documents relating to the tax exempt status of the Loan), and any such representations and
agreements made therein shall be deemed to be made on behalf of the City. All action taken to date
by the City Manager in furtherance of the issuance of the Bonds and the making of the Loan is
hereby approved, confirmed and ratified.
SECTION 9. ADDITIONAL INFORMATION. The Loan Agreement shall not be
executed and delivered unless and until the City has received all information required by Section
218.385, Florida Statutes.
SECTION 10. ADDITIONAL TERMS. Pursuant to subsequent resolution, the City may
establish such additional terms as it may so determine to be in the best interests of the City.
SECTION 11. EFFECTIVE DATE. This Ordinance shall take effect immediately upon
its adoption.
PASSED AND ADOPTED this day of , 2000.
ATTEST: APPROVED:
MAYOR
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
3
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/ 1
t
I N CCiRP6RATED
1927
�0R1
Excellence, Integrity, Inclusion
MEMORANDUM
To: Honorable Mayor, Vice Mayor
and City Commission
From: Charles Scurr
w
City Manager "4 J COO
REQUEST
Date: an`ry° 12, 2001
'6'
Re: Agenda Item
Alcoholic Beverages
January 16, 2001 Commission "Meeting
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA AMENDING SECTION 15 -74 (PROHIBITION OF
DRINKING ALCOHOLIC BEVERAGES IN PUBLIC PLACES AND CERTAIN
PRIVATE PLACES) TO ALLOW PROPERLY LICENSED AND PERMITTED
BUSINESSES WITH APPROVED OUTDOOR SEATING TO SERVE ALCOHOLIC
BEVERAGES; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT,
AND AN EFFECTIVE DATE.
BACKGROUND AND ANALYSIS
The City periodically reviews municipal ordinances to ensure that they continue to be up to date
and relevant. The purpose of the amendment to this ordinance is to clarify and bring up to date
the consumption of alcoholic beverages at properly licensed restaurants with City approved and
permitted outdoor dining.
The current ordinance was enacted prior to the emergence of outdoor dining. It needs to be
updated to specifically allow the consumption of alcoholic beverages at properly licensed and
permitted establishments. The additional language added to the ordinance accomplishes this.
RECOMMENDATION
Approval is recommended.
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA AMENDING SECTION 15 -74
(PROHIBITION OF DRINKING ALCOHOLIC BEVERAGES IN PUBLIC
PLACES AND CERTAIN PRIVATE PLACES) TO ALLOW PROPERLY
LICENSED AND PERMITTED BUSINESSES WITH APPROVED
OUTDOOR SEATING TO SERVE ALCOHOLIC BEVERAGES;
PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND
AN EFFECTIVE DATE.
WHEREAS, the City of South Miami wishes to support businesses in all areas of the City
to be successful; and
WHEREAS, under current ordinance no alcoholic beverage may be served or consumed
in a public place; and
WHEREAS, several restaurants and other establishments have approved outdoor seating;
and
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. Section 15 -74 of the Code of Ordinances of the City of South Miami is
amended to read:
Section 15 -74 Prohibition of drinking alcoholic beverages in public places and
certain private places.
It shall be unlawful for any person to drink alcoholic beverages in any public place in the
City of South Miami, Florida, or upon the grounds of any private premises within the city
without the consent of the owner, tenant, or other person lawfully in possession of such private
premises. It shall be unlawful for any person to drink alcoholic beverages in or upon any
automobile, truck, motorcycle or other vehicle while said vehicle is parked upon any public place
or upon the grounds of any private premises without the consent of the owner, tenant, or other
person in lawful possession of such private premises. The term "public place" as used herein
shall mean streets, sidewalks, parkways, parks playgrounds, school buildings, school yards,
motor vehicle inspection stations, city hall, libraries, and any other property owned or in the
possession of the City of South Miami, or any other state, county, or any other governmental
agency, and which property is used or intended for use by city or governmental employees or by
members of the general public. However, exempt from the provisions of this ordinance are duly
established and licensed businesses with approved outdoor seating when engaged in the sale of
alcoholic beverages for consumption solely at the approved outdoor seating location.
Section 2. If any section, clause, sentence or phrase of this ordinance is for
any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall
not affect the validity of the remaining portions of this ordinance.
Section 3. All ordinances or parts of ordinances in conflict with the
provisions of this ordinance are repealed.
Section 4. This ordinance shall be effective immediately after the adoption
hereof.
PASSED AND ADOPTED this _ day of , 2000.
ATTEST: APPROVED:
CITY CLERK MAYOR
1 st Reading —
2nd Reading —
COMMISSION VOTE:
READ AND APPROVED AS TO FORM: Mayor Robaina:
Vice Mayor Feliu:
Commissioner Russell:
CITY ATTORNEY Commissioner Bethel:
Commissioner Wiscombe:
City of South Miami
INTER - OFFICE MEMORANDUM
TO: Honorable Mayor, Vice Mayor Date: °yn-o=ry -12-5"'2001
and City Commission
FROM: Charles Scurr, Re: Agenda Item ti
City Manager Comm. Mtg J a-n`d a ry 16 , 2001
Changes to City Code 15 -65
REQUEST
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF SOUTH MIAMI, FLORIDA AMENDING SECTION 15 -65 (SLEEPING ON
STREETS, AVENUES, ETC.) OF THE CODE OF ORDINANCES OF THE CITY
OF SOUTH MIAMI; PROVIDING FOR SEVERABILITY, ORDINANCES IN
CONFLICT, AND AN EFFECTIVE DATE.
BACKGROUND AND ANALYSIS
The existing Section 15 -65 of the Code of Ordinances prevents people from "sleeping"
on public property such as streets, avenues, etc. Enacted in 1954 this ordinance is
outdated and of questionable constitutionality.
The proposed change to the ordinance addresses "camping" as opposed to sleeping. It is
modeled after the city ordinance of the City of Orlando which recently was upheld by the
United States Court of Appeals for the Eleventh Circuit.
Specific guidelines for the enforcement of this code have been promulgated for the
Police Department upon final passage of this ordinance. A copy is attached, and it is also
modeled after the guidelines from the City of Orlando, which were incorporated into the
decision of the Court of Appeals.
RECOMMENDATION
Your approval is recommended.
CS /GF /sh
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ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA AMENDING SECTION 15 -65
(SLEEPING ON STREETS, AVENUES, ETC.) OF THE CODE OF
ORDINANCES OF THE CITY OF SOUTH MIAMI; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE
DATE.
WHEREAS, Sections 15 -65 of the City Code of Ordinances deals solely with
sleeping on public property; and,
WHEREAS, since the enactment of this ordinance in 1954 many social changes
have occurred which would bring into question the validity of the ordinance in it's
current form; and
WHEREAS, the City Commission has expressed their desire to have the City's
Code of Ordinances brought up to date; and
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. Section 15 -65 of the Code of Ordinances of the City of South Miami
is amended to read:
Section 15 -65 Sleeping on streets, „venues, et -. Camping prohibited; exceptions
l . For the purpose of this section, "camping" is defined as:
a. Sleeping or otherwise being in a temporary shelter out -of- doors; or
b. Sleeping our -of- doors; or
c. Cooking over an open flame or fire out -of- doors.
2. Camping is prohibited on all public, propert, except as maybe specifically
authorized by the appropriate ovg ernmental authority.
Section 2. If any section, clause, sentence, or phrase of this ordinance is for any
reason held invalid or unconstitutional by a court of competent jurisdiction, the holding
shall not affect the validity of the remaining portions of this ordinance.
Additinnc abnwn by nnderNninu and deletinnc cbnwn by Aww ilrin^
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. rte_ ..• r • -.. rr
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r i��a�Oii •i•�rriitri•n
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W *! J A J
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l . For the purpose of this section, "camping" is defined as:
a. Sleeping or otherwise being in a temporary shelter out -of- doors; or
b. Sleeping our -of- doors; or
c. Cooking over an open flame or fire out -of- doors.
2. Camping is prohibited on all public, propert, except as maybe specifically
authorized by the appropriate ovg ernmental authority.
Section 2. If any section, clause, sentence, or phrase of this ordinance is for any
reason held invalid or unconstitutional by a court of competent jurisdiction, the holding
shall not affect the validity of the remaining portions of this ordinance.
Additinnc abnwn by nnderNninu and deletinnc cbnwn by Aww ilrin^
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64
65
Section 3. All ordinances or parts of ordinances in conflict with the provisions
of this ordinance are repealed.
Section 4. This ordinance shall be effective immediately after the adoption
hereof.
PASSED AND ADOPTED this _ day of 92000.
ATTEST:
CITY CLERK
I st Reading —
2nd Reading —
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
APPROVED:
COMMISSION VOTE:
Mayor Robaina:
Vice Mayor Feliu:
Commissioner Russell:
Commissioner Bethel:
Commissioner Wiscombe:
Additin-m. 6nwin by iinderfininonnd de-h-linnq qhown by F;*AyQtA1rin4x
CITY OF SOUTH MIAMI
POLICE DEPARTMENT
INTER - OFFICE MEMORANDUM
TO: All Personnel
FROM: Cokes Watson, Jr.
Chief of Police
DATE: December 19, 2000
SUBJECT: Administrative Order 4 -44
The City Code of Ordinances, Section 15 -65 has been amended to read:
1. For the ,_purpose of this section, "came" is defined as:
a. Sleeping or otherwise being in a temporary shelter out -of- doors; or
b. Sleeping our -of- doors; or
c. Cooking over an open flame or fire out -of- doors.
2. Cam ip.ng_is prohibited on all up blic property except as may be specifically
authorized by the appropriate governmental authority.
In order to "camp," the subject must do more than simply fall asleep on city
property. There must be some indication of actual camping. One or more of the
following should exist before an arrest under this section is appropriate:
(1) The property must be public property;
(2) The subject is inside a tent or sleeping bag, or the subject is asleep atop
and/or covered by materials (i.e. bedroll, cardboard, newspapers), or
inside some form of temporary shelter;
(3) The subject has built a campfire;
(4) The subject is asleep and when awakened volunteers that he has no other
place to live. Homeless persons should additionally be advised of
alternative shelters available such as Camillus House, etc.
(5) Upon arrest, evidence of camping (sleeping bags, bedroll, cardboard,
newspapers, etc.), should not be destroyed, but should be seized and
placed in Evidence. Other personal property of the Defendant, which is
not evidence, should remain with the Defendant.
To guarantee the fair application of this ordinance to all persons, the following criteria
should be considered before taking enforcement action.
Simply being asleep in a public place during late night or early morning hours
makes the camping case stronger, but is not alone sufficient to justify an arrest under this
section unless there is some indicia of true "camping" as noted above.
CW /GF /sh
SaUT�1
U .�
INCORPORATED �
1927
�+L O R I t7
Excellence, Integrity, Inclusion
MEMORANDUM
To: Honorable Mayor, Vice Mayor Date: December 19, 2000
and City Commission
From: Charles Scurr Re: Agenda Item 47
City Manager fee Option to Purchase Van Smith
Property - 7800 SW 59th Avenue
REQUEST
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI AUTHORIZING THE CITY MANAGER TO EXECUTE AN OPTION
TO PURCHASE THE VAN SMITH PROPERTY AT 7800 SW 59TH AVENUE FOR
USE AS A PASSIVE PARK; AND AUTHORIZING THE EXPENDITURE OF UP TO
$8,740.13'' FOR THE PURCHASE OPTION FROM ACCOUNT 01- 2100 -519 -8310
"SEED FUNDS"; PROVIDING AN EFFECTIVE DATE
BACKGROUND AND ANALYSIS
The City of South Miami is renown for the quality and diversity of our park system.
From time to time the opportunity presents itself for the City to acquire a unique and
valuable piece of property to add to the park portfolio. This occurred several years ago
when the City acquired the land for our "Open Space Park ".
A similar situation has now presented itself. Mr. Garret Van Smith approached the City.
The Van Smith family were one of South Miami's earliest families and have resided in
the house for many decades. Mr. Van Smith is now the only resident. He and his three
brothers each own equal shares of the property which was willed to them by their parents.
The property itself is a unique, largely native habitat. It is approximately 1 '/a acres and
would make an ideal passive neighborhood park. The family wants to ensure that the
property does not fall under, the control of a developer. However, they are no longer able
to maintain the full property and there is an outstanding tax lien on the property.
The City and the Van Smiths have developed an option agreement for the City to
purchase the property that includes the following major provisions:
• Price would be set at fair market value as determined by appraisal. We
anticipate the price will be in the range of $250,000.
• The City will pay the outstanding tax lien of approximately $6,940.13 and
$1,800 in legal fees. This amount will be credited back to the City should the
City purchase the property. If the City does not purchase the property the lien
amount would still be paid back to the City at such time as the property would
be sold to another entity.
• The City will have nine months to locate funding to purchase the house.
• The City will have the ability to extend the option for an additional 12 months
by paying the delinquent 1999 taxes, which should be in the $5,000 range.
This amount would also be credited in the future.
The "unique" aspect of this agreement is a provision that would allow Mr. Garrett Van
Smith to reside in the house for as long as he lives or is physically capable. The City
would anticipate fencing off the area of the residence as using the remainder as a passive
park.
In sum, this is a "no risk" opportunity for the City that will enable us to preserve a unique
property for use as a park.
The fund balance in Account 01- 2100 - 519 -8310 is $36,800.00.
RECEOMMENDATION
Approval is recommended.
1 RESOLUTION NO.
2
3 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
4 CITY OF SOUTH MIAMI AUTHORIZING THE CITY MANAGER TO
5 EXECUTE AN OPTION TO PURCHASE THE VAN SMITH PROPERTY
6 AT 7800 SW 59TH AVENUE FOR USE AS A PASSIVE PARK; AND
7 AUTHORIZING THE EXPENDITURE OF UP TO $8,740.13 FOR THE
8 PURCHASE OPTION FROM ACCOUNT 01- 2100 -519 -8310 "SEED
9 FUNDS "; PROVIDING AN EFFECTIVE DATE
10
11
12 WHEREAS, the need exists for additional parks within the City of South Miami;
13 and
14
15 WHEREAS, the property located at 7800 SW 59th Avenue is an excellent location
16 for a passive park; and
17
18 WHEREAS, the City has the opportunity to execute an option to purchase this
19 property.
20
21 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
22 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
23
24 Section 1. The City Manager is authorized to execute the attached Option to
25 Purchase Real Estate with the Van Smith heirs for the property at 7800 SW 59th Avenue
26 and to pay a sum not to exceed $8,740.13 for the option from Account 01- 2100 -519-
27 8310; Seed Funds.
28
29 Section 2. This resolution shall be effective immediately after the adoption
30 hereof.
31
32 PASSED AND ADOPTED this _ day of , 2001.
33
34 ATTEST: APPROVED:
35
36
37
38 CITY CLERK MAYOR
39
40
41 COMMISSION VOTE:
42 READ AND APPROVED AS TO FORM: Mayor Robaina:
43 Vice Mayor Feliu:
44 Commissioner Russell:
45 CITY ATTORNEY Commissioner Bethel:
46 Commissioner Wiscombe:
OPTION TO PURCHASE REAL ESTATE
This Option Agreement is made and entered this _ day of December, 2000, by
and between Mr. Garrett Van Smith, Mr. Parris Van Smith, Mr. Antony Van Smith and
William Van Smith ( "Sellers "), and the City of South Miami, a Florida municipal
corporation ( "City ")
L
For and in consideration of the City's payment within 15 days from the date hereof
of the 1998 ad valorem taxes for the Property (as hereinafter defined) which are in the
approximate amount of $6,940.13, including penalties and interest, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Sellers grant the City of South Miami (the "City ") an exclusive option to purchase that
certain real property situated and located at 7800 S.W. 59th Avenue, South Miami, Florida
I
33143, in Miami -Dade County, State of Florida, and legally described as:
All of Lot 12 and the North 22.59 feet of Lot 18, in Block
6, of AMENDED PLAT OF PALM MIAMI HEIGHTS,
according to the Plat thereof, recorded in Plat Book 25, at
Page 37, of the Public Records of Miami -Dade County,
Florida,
AND
The East '/z of Tract 6, less the South 125 feet thereof, of
REVISED PLAT OF A PORTION O TION OF THE
AMENDED
PLAT OF PALM MIAMI HEIGHTS as recorded in Plat
Book 43 at Page 37 of the Public c Records of Miami -Dade
County, Florida (the "Property").
i
[Note Legal Description Subject to Verification
H.
Subject to City paying the outstanding 1998 ad valorem taxes on the Property, the
parties hereto covenant and agree that, the City shall have the right to exercise this Option
at any time prior to December 31, 2001, hereinafter referred to as the "Option Period."
The City may exercise its exclusive right to purchase the subject property at any time
during the "Option Period" by giving written notice to the Sellers.
III.
City and Sellers acknowledge that there are certain title issues that must be
resolved in that a portion of the subject property was put into a trust for the benefit of
Sellers upon the death of their mother, Anne Van Smith a/k/a Anne Smith and Ann Van
Smith, and that the other portion of the subject property must pass under their mother's
will which names Sellers as the beneficiaries of her estate. However, the trust agreement
did not provide for a successor trustee upon the death of their mother and no probate has
occurred to authorize the sale of the remaining portion of such property. Accordingly, a
court proceeding needs to be commenced to have Sellers appointed as successor trustee
and to permit Garrett Van Smith, as the personal representative named in the will of Anne
Van Smith, together with Antony Van Smith and William Van Smith, who shall also serve
as personal representatives, to convey the property to the City. City agrees to retain
Nagin Gallop Figueredo, P.A. (or other counsel selected by City), as lead counsel, and
Pearson and Mayer, P.A., as co- counsel, and to utilize its good faith efforts to institute
and pursue the required court proceeding(s) so that Sellers have lawful right and authority
to convey good and marketable title to the subject property to the City. City and Sellers
acknowledge that Pearson and Mayer, P.A. is Sellers' counsel, and through the services of
Stephen D. Pearson, Esq., its role will be to consult with and advise Nagin Gallop
Figueredo, P.A. (or other counsel selected by City) in its pursuit of the required actions.
City shall pay Pearson and Mayer, P.A. at a rate of $150.00 per hour for fees, together
with any costs. The fees and costs payable by City to Pearson and Mayer, P.A. for this
work will be capped at $1,800.00 and City shall receive a credit against the purchase price
of the property at closing for the amount of such fees, subject to the aforesaid cap.
If City shall not have achieved such desired result within nine months from the date
hereof, then City or Sellers shall have the right to terminate this Option Agreement. On
the other hand, if City exercises its option and proceeds to close (either because City cures
the said title defects or City waives same), then City shall receive a credit against the
purchase price of the Property at closing for the amount of the 1998 taxes and Pearson
and Mayer, P.A. fees paid by the City. In addition, City shall have the right to extend the
option period from twelve months to December 31, 2002 upon its payment of the past
due, 1999 real property taxes on the subject property on or before September 1, 2001. In
the event that City exercises its option and closes on the Property, then the amounts paid
by the City to satisfy the 1998 and /or 1999 taxes, shall be credited against the purchase
price at closing. City shall also receive credits for any unpaid taxes (prorated) at the
closing for periods prior to closing. In the event that the City elects not to purchase the
property, Sellers agree to reimburse the City for the taxes paid by the City at such time as
the property is sold.
IV.
The purchase price for the subject property shall be the fair market value of the
property as established by appraisal. The appraisal shall be performed by from one to
three appraisers acceptable to Sellers and City, and if more than one appraisal is obtained
the purchase price shall be the average of the appraisals. City agrees to pay the costs of
the initial appraisal(s) but will receive a credit for one half of such costs at the closing of
the purchase. For purposes of the appraisal(s), there shall be no consideration given to the
fact that Mr. Garrett Van Smith shall be granted an irrevocable license in a portion of the
subject property as hereinafter described. Between now and closing, City shall not do
anything that will adversely affect the value of the property, including, but not limited to,
any change in its zoning to a more restrictive classification. The appraisal(s) shall be
conducted as of a date that shall be not more than three months from the date hereof.
Title defects will be presumed cured for purposes of the appraisal(s). In addition, if City
exercises its option to extend the option period, then City shall pay to have the Property
re- appraised by an appraiser satisfactory to the Sellers as of the 31' day of December,
2001 and that appraisal shall be the purchase price of the Property during the extended
Option period. The property shall be conveyed in "As Is" physical condition.
V.
City shall survey the subject property at its expense prior to closing. Such survey
shall create a separate legal description for the home and a 10 foot area surrounding the
home for which Mr. Garrett Van Smith shall retain an irrevocable license.
VL
At closing, Mr. Garrett Van Smith shall receive an irrevocable license to reside in
the home located on the subject property together with exclusive access easement to allow
for Mr. Garrett Van Smith egress and ingress to the home, which right shall not be
considered for purposes of establishing the fair market value of the property in the
appraisal(s). In exchange for such rights, Mr. Garrett Van Smith agrees to care for and
guard the property, including the home, during his lifetime or until his rights are voluntarily
relinquished in writing, as he deems fit and suitable. Mr. Garrett Van Smith', shall not pay City for
his irrevocable license and easement rights and same shall be personal to Mr. Garrett Van Smith and
shall expire upon his death or voluntary relinquishment of such rights in writing, or abandonment,
whichever shall occur first Abandonment shall be defined as not living in the home for more than six
months unless Mr. Garrett Van Smith has been hospitalized, or is otherwise physically not residing
in the home but provides the City- with written notice of his intention to return to the home. For
purposes of this Agreement, permanently residing in an assisted care living facility shall not meet the
definition of hospitalized. Mr. Garrett Van Smith shall pay for the maintenance, utilities and repair
of the home on the property as he deems fit, during the period of his use of same and City shall pay
the costs of maintaining the land at all times after closing. In addition, City shall have the right at its
expense to repair and maintain the home if it deems Mr. Garrett Van Smith's repairs and maintenance
inadequate and if Mr. Garrett Van Smith has no objection to such repairs and maintenance. During
the lifetime of Mr. Garrett Van Smith, the City shall use the Property only as a passive, nature park.
These provisions shall survive closing.
VII.
Sellers shall pay for documentary stamps on the deed and for Sellers' prorated
share of real estate taxes in accordance with custom and practice in Miami -Dade County
Sellers shall also cancel the claims of lien has filed against the property prior to closing.
After payment of all costs and adjustments provided herein to be paid by Sellers and
payment of the outstanding fees and costs of Pearson and Mayer, P.A. in this matter, the
net sales proceeds shall be divided and paid in equal amounts to each of the Sellers.
VIII.
All notices, demands and /or consents provided for in this Option Agreement shall
be in writing and shall be delivered to the parties hereto by hand or by United States Mail
with postage pre -paid. All notices to Sellers shall be addressed to Sellers at Garrett Van
Smith, 7800 S.W. 59th Avenue, South Miami, Florida 33143; William Van Smith, 11600
S.W. 131St Avenue, Miami, Florida 33186; Antony Van Smith, 16061 S.W. 86th Avenue,
Miami, Florida 33157; and Parris Van Smith, 1012 Fox Den Court, Winter Springs,
Florida 32708, with a copy to Pearson and Mayer, P.A., Attn.: Stephen D. Pearson, Esq.,
13866 S.W. 151St Lane, Miami, Florida 33186, unless changed by written notice to City..
i
All notices to City shall be addressed to City at 6130 Sunset Drive, South Miami, Florida
33143, Atten.: City Attorney, unless changed by written notice to Sellers. The parties
agree to keep each other reasonably apprised of the status of this matter and each parties
efforts to achieve the closing contemplated hereunder, which each party agrees to pursue
in good faith, City shall give Sellers not less than 15 days notice of the date it desires to
close the purchase contemplated by this Option Agreement.
IX.
This Option Agreement shall be governed by and construed in accordance with the
laws of the State of Florida.
X.
This Option Agreement contains all of the terms, promises, covenants, conditions
and representations made or entered into by or between Sellers and the City and
supersedes all prior discussions and agreements whether written or oral between Sellers
and the City with respect to the Option Agreement and all other matters contained herein
and constitutes the sole and entire agreement between Sellers and the City with respect
thereto. This Option Agreement may not be modified or amended unless such amendment
is set forth in writing and executed by both Sellers and the City with the formalities hereof.
This Option Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this
day of , 2000.
City of South Miami
By:
Charles Scurr, City Manager
Witness
Witness
Witness
Witness
Witness
Witness
Witness
Witness
Mr. Antony Van Smith
Mr. William Van Smith
Mr. Garrett Van Smith
Witness
Witness
Witness
Witness
Mr. William Van Smith
Mr. Garrett Van Smith
Witness Mr. Parris Van Smith
Witness
Witness Mr. Antony Van Smith
Witness
Witness Mr. William Van Smith
j(1
Witness
Witness Mr. Garrett Van Smith
Witness
Witness
Witness
Witness
Witness
Mr. Antony Van Smith
Mr. William Van Smith
Mr. Garrett Van Smith
SOUTH
4
INCt1RPQRATED
1927
oRt
Excellence, Integrity, Inclusion
MEMORANDUM
To: Honorable Mayor, Vice Mayor Date: January 16,2001
and City Commission
From: Charles D. Scuff Re: Agenda Item #
City Manager LDC Amendment:
o Permitted Use in NR District
REOUEST:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, FLORIDA, RELATING TO PERMITTED USES; AMENDING
CHAPTER 20 OF THE CITY OF SOUTH MIAMI LAND DEVELOPMENT CODE,
BY REVISING SECTION 20- 3.3(D) ENTITLED, "PERMITTED USE SCHEDULE"
TO REMOVE GASOLINE SERVICE STATIONS AS A SPECIAL USE IN THE
"NR", NEIGHBORHOOD RETAIL ZONING DISTRICT; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT, AND PROVIDING AN
EFFECTIVE DATE.
BACKGROUND AND ANALYSIS
The attached ordinance, which was previously adopted by the Commission, amends the City's
Permitted Use Schedule. The revision is in response to concerns that gasoline service stations are
not a compatible use either within or adjacent to residential neighborhoods. The City's Land
Development Code currently allows service stations as a special use (requires public hearing and
adherence to special conditions) in the neighborhood and general retail districts. Based upon the
goals and objectives of the City's Comprehensive Plan pertaining to the preservation of single-
family residential neighborhoods and the elimination of uses inconsistent with community
character, it would be appropriate to amend the Land Development Code to remove gasoline
service stations as a special use in the "NR" Neighborhood Retail District. It is important to note
that the proposed amendment will not immediately impact existing service stations, however;
stations located in an "NR" district would become nonconforming uses and will, in the future, be
subject to the regulations governing nonconforming uses.
A proposed ordinance removing gasoline service stations as a special use in the "NW' zoning
district was presented to the City Commission at its March 21, 2000 meeting at which time the
Commission adopted the ordinance on first reading without advertisement or a public hearing.
F !
LDC Amendment - Community Service Overlay
Commission Meeting: January 16, 2001
Page 2 of 2
The item was then referred to the Planning Board. The Planning Board at its April 25, 2000
meeting conducted a public hearing, and by a vote of 4 -1 recommended that the ordinance be
referred to the newly created Zoning Task Force for consideration. The City Commission did
not opt for the recommendation to refer the matter to the Zoning Task Force; rather, the subject
ordinance went before the Commission at its May 16, 2000 meeting, at which time the
Commission held a public hearing and adopted the ordinance on second reading.
REASONS FOR RE- ADOPTION
Subsequent to the May 16th meeting, City staff determined that the ordinance adoption process
might not have been in accord with Florida statutes governing zoning amendments which modify
a Land Development Code permitted use schedule. Florida Statute 161.041(3)(c )2a and 2b
generally require certain procedures to be followed only for ordinances that change the zoning
map or the uses permitted in a zoning district. The regulations require two public hearings each
advertised in accordance with instructions listed in the statute. In order to strictly comply with
the ordinance adoption procedures for this type of amendment it is recommended that the
proposed ordinance be subject to public hearings and re- adoption at this time.
RECOMMENDATION:
The proposed text amendment will eliminate a use that is inconsistent with the policies of the
Comprehensive Plan and will protect the character of residential areas in the future. It is
recommended that after public hearing, the ordinance be approved on first reading and
scheduled for a second reading public hearing and adoption at the February 6, 2001 City
Commission meeting.
Attachment:
Proposed Ordinance
Public notice
Planning Board Minutes, 4 /25/00
t1i.-
CDS/ B /RGL/SAY
I ORDINANCE NO.
2
3
4 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
5 SOUTH MIAMI, FLORIDA, RELATING TO PERMITTED USES; AMENDING
6 CHAPTER 20 OF THE CITY OF SOUTH MIAMI LAND DEVELOPMENT CODE,
7 BY REVISING SECTION 20- 3.3(D) ENTITLED, "PERMITTED USE SCHEDULE"
8 TO REMOVE GASOLINE SERVICE STATIONS AS A SPECIAL USE IN THE
9 "NR ', NEIGHBORHOOD RETAIL ZONING DISTRICT; PROVIDING FOR
10 SEVERABILITY, ORDINANCES IN CONFLICT, AND PROVIDING AN
11 EFFECTIVE DATE.
12
13
14
15 WHEREAS, the Planning and Zoning Department and the Planning Board have initiated a
16 program to update, clarify, and improve the provisions of the City's Land Development Code;
17 and
18
19 WHEREAS, the South Miami Comprehensive Plan states that the City should preserve and
20 enhance the quality of life in existing single - family residential neighborhoods and should
21 eliminate uses inconsistent with community character(Land Use Element, Goal 1, Objective 1.1);
22 and
23
24 WHEREAS, after review and consideration, the Planning and Zoning Department has
25 determined that allowing gasoline service stations within neighborhood oriented zoning districts
26 is inconsistent with the City's Comprehensive Plan and an appropriate amendment to the Land
27 Development Code should be prepared; and
28
29 WHEREAS, a specific amendment to Section 20- 3.3(D) of the Land Development Code has
30 been prepared in order to remove gasoline service stations as a special use in the `NR'
31 ,Neighborhood Retail Zoning District; and
32
33 WHEREAS, at its April 25, 2000 meeting after a public hearing regarding the proposed
34 amendment to Section 20- 3.3(D) of the Land Development Code, the Planning Board voted 4 -1
35 to recommend to the City Commission that the ordinance be referred to the Zoning Task Force
36 for further consideration. and
37
38 WHEREAS, the City Commission desires to enact the aforesaid amendment.
39
40
41
42 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY
43 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
44
45 Section 1 That Section 20- 3.3(D), entitled, "Permitted Uses," of the South Miami Land
46 Development Code is hereby amended to read as follows:
47
48
1
2
3
4
5 RETAIL AND WHOLESALE TRADE
Gasoline Service Station I I 1 181 S 5 11
6
7
8
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Section .2 All ordinances or parts of ordinances in conflict with the provisions of this
ordinance are hereby repealed.
Section 3 If any section, clause, sentence, or phrase of this ordinance is for any reason
held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect
the validity of the remaining portions of this ordinance.
Section 4 This ordinance shall take effect immediately at the time of its passage.
PASSED AND ADOPTED this
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
day of , 2001
MAYOR
COMMISSION VOTE:
Mayor Robaina:
Vice Mayor Feliu
Commissioner Bethel:
Commissioner Russell
Commissioner Wiscombe:
NOTE: New wording underlined; wording to be removed indicated by strike - through
D: \Comm Items\2001 \1- 16- 00\LDC Amend - NR Gas Stations.doc
ZONING
DISTRICT
R
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M
N
S
G
T
T
T
T
T
H
P
P
C
P
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O
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0
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5 RETAIL AND WHOLESALE TRADE
Gasoline Service Station I I 1 181 S 5 11
6
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Section .2 All ordinances or parts of ordinances in conflict with the provisions of this
ordinance are hereby repealed.
Section 3 If any section, clause, sentence, or phrase of this ordinance is for any reason
held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect
the validity of the remaining portions of this ordinance.
Section 4 This ordinance shall take effect immediately at the time of its passage.
PASSED AND ADOPTED this
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
day of , 2001
MAYOR
COMMISSION VOTE:
Mayor Robaina:
Vice Mayor Feliu
Commissioner Bethel:
Commissioner Russell
Commissioner Wiscombe:
NOTE: New wording underlined; wording to be removed indicated by strike - through
D: \Comm Items\2001 \1- 16- 00\LDC Amend - NR Gas Stations.doc
P
w
CITY OF SOUTH MIAMI
NOTICE 'OF PUBLIC HEARING
AMENDMENT TO
LAND DEVELOPMENT CODE
NOTICE IS HEREBY given that the City Commission
of the City of South Miami will conduct a First
Reading Public Hearing on the following proposed
ordinance amending the City's Land Development:
AN ORDINANCE OF THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH
MIAMI, FLORIDA, RELATING TO PERMITTED .
USES; AMENDING CHAPTER 20 OF THE
CITY OF .'SOUTH MIAMI LAND.
DEVELOPMENT CODE, BY 'REVISING'
SECTION 20- 3.3(D) ENTITLED, "PERMITTED
USE SCHEDULE" TO REMOVE GASOLINE
SERVICE STATIONS AS A SPECIAL USE IN
THE "NR NEIGHBORHOOD RETAIL
ZONING DISTRICT; PROVIDING FOR.
SEVERABILITY, ORDINANCES IN CONFLICT,
AND PROVIDING AN EFFECTIVE DATE.
The first reading public hearing on the above - proposed
ordinance will be conducted during a regular meeting of
the South Miami City Commission scheduled for:
Tuesday, January 16, 2001 at 7:30 PM
The meeting will be held in the City Commission
Chambers, South Miami City Hall, 6130 Sunset Drive,
South Miami, Florida 33143. All interested persons
are invited to attend and will be heard. Copies of the
subject ordinance is available for review in the City's
Planning Department which is located.on the 2nd floor
of the South Miami City Hall, 6130 Sunset Drive.
Inquiries concerning this item may be directed to the
Planning Department at 305- 663 - 6326.
Ronetta Taylor, CMC
City Clerk
City of South Miami
Pursuant to Florida Statutes 286.0105, the City hereby advises
the public that if a person decides to 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, affected person
may need to ensure that a verbatim record of the proceedings is
made which record includes the testimony and evidence upon
which the appeal is to be based.
Ml '�
I
CITY OF SOUTH MIAMI
Planning Board
Regular Meeting
Action Summary Minutes
Tuesday, April 25, 2000
City Commission Chambers
7:30 P.M.
I. Call to Order and the Pledge of Allegiance to the Flag
Action: Mr. Morton, Chair, called the meeting to order at 7 :35 p.m. and the Pledge of
Allegiance was recited.
II. Roll Call
Action: Mr. Morton performed roll call.
Board members present constituting a quorum
Mr. Morton, Ms. Gibson, Ms. Chimelis, Mr. Illas, Mr. Lefley
Board members absent
Mr. Cooper, Mr. Mann'
City staff present
Subrata Basu (ACM/Planning Director); Sandy Youkilis (Temporary Planning Staff);
David Struder (Board Secretary)
Action: Mr. Basu held opening remarks.
The Board and staff discussed the lobbyist ordinance recently passed by the City
Commission. Board and staff concerns included, but were not limited to, the following:
enforcement of the ordinance; reasons for the ordinance; scope and impact of the
ordinance; and payment of fees as required by the ordinance.
The Board asked that the Mayor, Vice - Mayor, or a Commissioner attend a future Planning
Board meeting during which the ordinance may be further considered.
III. Public Hearings
PB MINS 04 -25 -00 1
ITEM: PB -00 -009 (deferred from 4 -11 -00 meeting)
Applicant: Mayor and City Commission
Request:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
PERMITTED USES; AMENDING CHAPTER 20 OF THE CITY OF
SOUTH MIAMI LAND DEVELOPMENT CODE, BY REVISING
SECTION 20- 3.3(D) ENTITLED, "PERMITTED USE SCHEDULE" TO
REMOVE GASOLINE SERVICE STATIONS AS A SPECIAL USE IN
THE "NR ", NEIGHBORHOOD RETAIL ZONING DISTRICT;
PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT,
AND PROVIDING AN EFFECTIVE DATE.
Action: Mr. Illas read the request into the record and staff introduced the item.
Public speakers: Ms. Doris Hall; Mr. David Tucker, Sr.; Ms. Yvonne Beckman
The Board and staff discussed the item. Specifics related by the Board and /or staff
included, but were not limited to, the following: appropriateness of gasoline service
stations in the NR zoning district; possible limited use of gasoline service stations in NR,
such as without automobile repair; impact of the ordinance upon certain property zoned
NR specifically located at SW 62 Avenue and 64 Street; current non - conforming uses in
the NR zoning district; and uses currently permitted in the NR zoning district.
Motion: Mr. Lefley moved approval that the matter be referred to the Zoning Task Force
for consideration. Mr. Morton seconded the motion.
Vote: Approved 4 Opposed l (Mr. Illas)
IV. Discussion Items
No discussion items were scheduled at meeting time.
V. Approval of Minutes .
Action: The Board duly voted on and approved the minutes of April 11, 2000, as
submitted.
Vote: Approved 5 Opposed 0
VI. Remarks / Discussion
Action: The Board and staff discussed such concerns as making PB information packets
more complete; exercising more control over PB applicants who appear at meetings; and
PB member(s) attending City Commission meetings for consideration of Board items.
PB MINS O4 -25 -00 2
Action: The Board and staff further discussed the lobbyist ordinance.
Motion: Mr. Morton moved approval that the City Attorney be present at the next PB
meeting in order to discuss the new ordinance. Ms. Chimelis seconded the motion.
Vote: Approved 5 Opposed 0
VI. Adjournment
Action: Mr. Morton adjourned the meeting at 9:30 p.m.
! 1
� r
� r
Excellence, Integrity, Inclusion
MEMORANDUM
To: Mayor and City Commission
REQUEST
Date: January 16, 2001
Agenda Item # / 1�
Re: First Reading: Lease Agreement
with SPG Phase One, Ltd., for a Mixed
Use /Joint Development Parking Garage
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
CONTRACTS; APPROVING A LEASE AGREEMENT WITH SPG
PHASE ONE, LTD., FOR CONSTRUCTION AND OPERATION OF A
MULTI -USE PARKING GARAGE; PROVIDING FOR TERMS AND
CONDITIONS; PROVIDING FOR ORDINANCES IN CONFLICT,
SEVERABILITY, AND EFFECTIVE DATE.
BACKGROUND & ANALYSIS
Proiect History
The City of South Miami issued the Request for Proposals in June 1997 for the
municipal parking lot located at SW 73rd Street and SW 58' Avenue. In September 1997,
the City Commission awarded the proposed project for the design, construction, leasing
and management of the mixed -use development and parking garage to SPG Phase One.
The initial project was for a mixed -use parking garage that included the following:
• Area — Only the City of South Miami Parking Lot, not including the Richman
Property;
• Parking Spaces
♦ Total Spaces — 257
♦ City Replacement Parking 73
♦ Code Required Parking - 58* (* Includes shared parking credit, does not
include Metrorail credit)
♦ Net New Parking Available 100% - 126
♦ Net New Parking Available Nights & Weekends —133
• Mixed Uses
♦ Retail - 15,000 SF
♦ Office - 8,000 SF
♦ Residential - 0 Units
This project has experienced a series of changes, evolutions and delays. To date SPG,
has advanced seven versions of the project for consideration by the City.
The first evolution occurred shortly after the initial RFP. SPG expanded the scope of the
project to include the property at the corner of 73rd Street and 58 Court. This property,
owned by Mark Richman, is referred to as the Richman property. In March 1999, the
City Commission approved a Resolution accepting a Proposed Framework for a Lease
Agreement that included the Richman property.
It is our understanding that the agreement between SPG and Richman was never
finalized. On September 7, 1999, a Lease Agreement that no longer included the
Richman property was presented to the Commission and approved on first reading.
At the City's suggestion, SPG & Richman resumed discussions. On October 1St and 14th,
SPG presented an enhanced project that once again included the Richman property. That
project included the following:
• Area — The City of South Miami Parking Lot and the Richman Property;
• Parking Spaces
♦ Total Spaces — 493
♦ City Replacement Parking — 73
♦ Code Required Parking — 95
♦ Net New Parking Available 100% - 325
♦ Net New Parking Available Nights & Weekends — 350
• Mixed Uses
♦ Retail - 31,300 SF
♦ Office - 8,000 SF
♦ Residential - 0 Units
On November 11, 1999, SPG advised the City that the project, as proposed, was not
financially feasible and that, as soon as the financial implications of the market
conditions were fully analyzed, that a modified project would be submitted.
In December 1999, SPG submitted their revised project. That project, Version 6,
included the following:
• Parking Spaces
♦ Total Spaces — 336
♦ City Replacement Parking — 73
♦ Code Required Parking —169*
♦ Net New Parking Available 100% - 94
♦ Net New Parking Available Nights & Weekends — 204
• Mixed Uses
♦ Retail @ 29,530 SF
♦ Office @ 35,000 SF
♦ Residential @ 0 Units
The vertical configuration of the final project includes the following:
• Ground Level — Retail
• Second Level 100% Parking
• Third & Fourth Level - 50% Office; 50% Parking
• Roof -100% Parking
Version 6 was presented to the Planning Board on May 30, 2000 for consideration of the
Zoning items. The Planning Board recommended denial of the requests for Special
Exceptions. The project was submitted to the City Commission for second reading and
public hearing on July 18, 2000. The project was denied.
The Commission subsequently directed staff and the developer to explore additional
alternatives to the project that would provide for additional public municipal parking. At
a Special Meeting on October 12, 2000, a series of alternatives were presented. The
Commission directed staff and the developer to recommence negotiations on Alternative
"B ", which would essentially provide for one additional floor of municipal parking. The
Commission also directed staff to develop a financial evaluation for a "Municipal Parking
Garage" that would include limited retail on the first floor and only parking in the
remainder of the facility on all remaining floors.
The agenda item tonight includes the revised lease for Version 7 as directed by the
Commission (Attachment Q. Also attached in the package is the financial analysis for
the Municipal Parking Garage (Attachment B).
The "Final SPG Mixed Use Project" now under consideration and the subject of this lease
agreement includes the following:
• Area - The City of South Miami Parking Lot and the Richman property;
• Parking Spaces
♦ Total Spaces — 442
♦ City Replacement Parking - 73
♦ Code Required Parking — 148* (Includes shared use credit; does not
include Metrorail credit)
3
♦ Net New Parking Available 100% - 221
♦ Net New Parking Available Nights & Weekends - 314
• Mixed Uses
♦ Retail @ 28,200 SF
♦ Office @ 29,434 SF
♦ Residential @ 0 Units
The geometry of the final project includes the following:
• Ground Level - Retail
• Second Level 100% Municipal Parking
• Third Level —100% Municipal Parking
• Fourth & Fifth Level — 50% Office; 50% Parking
• Roof —100% Parking
The height of the building will be approximately 59 feet. The allowable height in the
Hometown District is 56 feet. The project, as expected in a garage facility, will include
maximum lot coverage. There will be a number of special exceptions required for this
project. These 'special exceptions will be the subject of a separate planning /zoning
process and approvals.
Financial Considerations
Luis Figueredo of the City Attorney's Office has prepared a memorandum detailing the
framework of the Lease agreement (Attachment A).
The financials for the final project have changed as the concept for the project has
evolved. The major financial parameters are:
• Minimum Rent The concept of minimum rent was designed to compensate
the City for lost revenue from the existing 73 spaces in the City lot. In the
final project, minimum rent has been replaced with the provision of
"replacement" parking. The second floor of the final project will be metered
parking. The City of South Miami will retain 73 metered spaces and derive
all revenue from those spaces. The City will determine rates, hours of
operation, etc., for those spaces. The City will derive all revenue from the
metered spaces on the 3rd level. The City will also continue to enforce (e.g.
ticket) on the entire 2nd and 3rd levels and retain its normal revenue from this
activity. The initial revenue from parking meters is estimated at
approximately $125,000.
The final agreement does not include any cash rental payment to the City
during construction. This is non - standard for a lease of this type. ` In lieu of
cash, SPG will provide, to the best of their ability, office space for City use
during construction, and the provision of 200 SF of permanent office space on
the ground floor of the project.
4
• Percentage Rent Percentage rent is designed to compensate the City as the
owner of the land. The final project includes a two -tier percentage payment.
The City will receive 2.5% of adjusted gross revenues up to $1,400,000; and
7.0% of the adjusted gross revenues above $1,400,000. The two -tier payment
will be beneficial to the City over the long term as inflation and increased
demand for space increase. The initial revenue is estimated at approximately
$32,000.
• Ad Valorem Taxes & Other Revenues - The project has undergone a number
of conceptual approaches to tax revenues, supplemental rent and other
revenue. The final project, with an estimated value of $8,000,000, and the
City's current ad valorem tax rate of 6.373 mills, will generate approximately
$50,000 annually. The City will also receive an estimated $5,000 annually
from Occupational License Fees and approximately $60,000 annually from
parking meter enforcement.
• City Financing of Additional Level of Parking The City will assume the
financial responsibility for the incremental cost of construction and the
incremental increase in operating costs for the additional level of municipal
parking. The capital cost is capped at $12,000 per space for a total, assuming
110 spaces, of $1,220,000. This would result in a maximum annual cost,
during the period of debt service, of approximately $120,000. The incremental
operating costs are not expected to be significant and should not exceed
$44,000 annually. This results in an expense to the City of approximately
$164,000.
INITIAL YEAR CALCULATIONS
REVENUES
Parking Meters $125,000
Percentage Rent 30,000
Ad Valorem Taxes 50,000
Occupational Licenses 5,000
Parking Enforcement 60,000
Sub Total $270,000
EXPENSES
Debt Service $120,000
Operations 44,000
Sub Total $164,000
NET PROJECTED REVENUE TO CITY $106,000
(CURRENT REVENUE RECEIVED BY
CITY FROM SURFACE LOT) ($126,000)
NET NEW REVENUE TO CITY ($20,000)
5
In sum, from a financial perspective, the Final SPG Mixed Use Garage is essentially a
no -cost break even proposition for the City in the initial years of the project. The City
receives the additional municipal parking at no cost. In subsequent years the project is
expected to produce positive revenue for the City above and beyond that currently
received from the surface parking operation.
Hometown Plan and Parking Considerations
The Hometown Plan envisions vibrant mixed uses downtown. The "final project" is
superior to the original project in terms of a pure hometown plan development. It is a
development as envisioned by the Hometown Plan in that it includes three uses: retail,
office and parking. The synergy between these three uses is particularly important in that
the office use provides patrons for the retail uses during the week and also provides
surplus parking for retail uses on nights and weekends. The addition of the office
component also adds to the value of the project and the ad valorem and occupational
license revenue received by the City.
This site has always been contemplated to provide surplus parking for other downtown
hometown projects (i.e. Net new parking available 100 %) as well as provide additional
parking to support downtown merchants (i.e. Net New Parking Available Nights and
Weekends).
The "original' project of September 1997 included a total of 257 spaces. After deducting
the City replacement parking (73 spaces) and code required parking (58), the Net New
Parking Available 100% was 126 spaces and the Net New Spaces Available Nights and
Weekends was 133 spaces.
The "final project" includes a total of 442 spaces. The Net New Parking Available 100%
is 221 spaces and the Net New Parking Available Nights and Weekends is 314 spaces.
The Municipal Parking Garage option, which is the subject of the financial analysis
developed by the City Attorney's Office (Attachment B), contains a maximum total of
590 spaces. The Net New Parking Available 100% is 464 spaces. The Net New Parking
Available Nights and Weekends is approximately 500 spaces.
Project
Total
Net 100%
Net Nights and Weekends
Original SPG
257
126
133
Final SPG
442
201
314
Municipal Garage
590
464
500
The major issue with the Municipal Garage is the expense. The capital cost is estimated
at $8,283,600, with a resulting minimum annual debt service of $638,690. The estimated
annual operating and maintenance expense would be approximately $236,000 resulting in
a total annual expense of approximately $875,000.
6
The revenue available to offset this expense would come primarily from parking
revenues, enforcement fines and occupational license fees. Factoring the projections
developed above a new municipal lot would generate approximately $200,000 in revenue
in the first full year of operation. This assumes no revenue to the City from the retail
operation as this would be a concession in lieu of land acquisition.
This would result in an initial annual deficit of $675,000. This amount would decrease
over time, but even under optimistic scenarios it would take years for the facility to be
self supporting.
Net Nights/ Additional Annual Income/
Alternative Net 100 %_ Weekends (Expense) to City
SPG Mixed Use 201 314 ($ 20,000)
Municipal Garage 464 500 ($675,000)
A variety of options for a smaller municipal facility_ exist. However, any significant
reduction in parking levels significantly detracts for the ability of the facility to serve its
role as an infrastructure garage. It should also be noted that construction of the municipal
garage could be deferred until a future date when revenue forecasts would be higher.
The availability of funds to support a Municipal Parking Garage is uncertain. Potential
sources include:
• Revenue Bond with on- street meters pledged as collateral. This could be
approved by the City Commission. It would require existing on- street parking
meter revenue to be shifted from the general operating fund.
• General Obligation Bond. This would require a voter referendum.
• Special District Parking Bond. This would require a- referendum of affected
downtown property owners.
It should also be noted that the City has a second surface lot available on 71St that could
also be used to meet future parking needs. The City has been in discussion for some time
with the Simon Property Group regarding a mixed use joint development on the City
Parking Lot on 71st Street and the "Tire Kingdom" property next door. While that project
is not advancing, one of the earlier iterations included a freestanding parking garage
solely on the City site. This site could yield 236 spaces if used solely as a parking
garage. The current surface parking yields 45 spaces. The potential Net New Parking
Available 100% would be 191 spaces. It must be stressed, however, that no funding has
been identified for a new 71 St Street Facility and there is no assurance that funding will be
available.
7
Finally, it should be noted that, under any scenario, new mid and large size developments
will be required to provide virtually all of their parking on site. This is physically
possible but will require increased lot coverage allowances. The Zoning Task Force is
currently reviewing this factor.
SUMMARY & CONCLUSION
The essence of the public policy decision facing the City revolves around two issues.
The first issue is whether the need exists for additional parking in the Central Business
District to support current and future development in the Hometown District and the
existing commercial and retail merchant base. If the decision is affirmative then the
public policy decision becomes which, of the two primary alternatives available to the
City, is the preferred alternative.
The final lease agreement for the SPG Mixed Use Project, the final product is the result
of literally years of effort. There have been many challenges to overcome throughout the
process. The final lease agreement is the result of intense negotiation. The final product,
while not optimal from either party perspective, is acceptable and does achieve the public
policy objectives of the City of South Miami.
ATTACHMENTS
Three documents are attached:
• Attachment A: Lease Summary
• Attachment B: Projected Construction Costs for City of South Miami
Municipal Garage
• Attachment C: The Lease Agreement.
8
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6 ORDINANCE NO.
7
8
9 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
10 CITY OF SOUTH MIAMI, FLORIDA, RELATING TO CONTRACTS
11 APPROVING THE GROUND LEASE AGREEMENT_ BETWEEN THE
12 CITY OF SOUTH MIAMI AND SPG PHASE ONE, LTD., FOR A MIXED
13 USE /JOINT DEVELOPMENT PARKING GARAGE ON THE
14 MUNICIPAL PARKING LOT BOUNDED BY SW 73RD STREET ON THE
15 SOUTH, SW 58TH AVENUE ON THE EAST, SE 58TH COURT ON THE
16 WEST AND AN ALLEYWAY ON THE NORTH; PROVIDING FOR
17 TERMS AND CONDITIONS; PROVIDING FOR ORDINANCES IN
18 CONFLICT; SEVERABILITY; AND AN EFFECTIVE DATE.
19
20
21 WHEREAS, the City of South Miami issued a Request for Proposals for the design,
22 construction, leasing and management of the mixed -use development parking garage for the
23 municipal parking lot located at SW 73rd Street and SW 58th Avenue in June 1997; and
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26 WHEREAS, the City accepted the proposal by SPG Phase One, Ltd., for negotiating
27 purposes in September 1997; and
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30 WHEREAS, the terms and conditions of the Lease Agreement have been finalized;
31
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33 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
34 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
35
36 Section 1. The Lease Agreement between the City and SPG Phase One Limited is
37 approved;
38
39 Section 2. If any section, clause, sentence, or phrase of this ordinance is for any
40 reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not
41 affect the validity of the remaining portions of this ordinance.
42
43 Section 3. All ordinances or parts of ordinances in conflict with the provisions of this
44 ordinance are repealed.
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2
Section 4. This ordinance shall
take effect immediately upon the approval.
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PASSED AND ADOPTED this _
day of '1999.
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ATTEST:
APPROVED:
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CITY CLERK
MAYOR
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1" Reading -
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2nd Reading -
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COMMISSION VOTE:
20
READ AND APPROVED AS TO FORM
Mayor Robaina:
21
Vice Mayor Feliu:
22
Commissioner Russell:
23
CITY ATTORNEY
Commissioner Bethel:
24
Commissioner Wiscombe:
25
LEASE SUMMARY
1. Tenant: SPG Phase One, Ltd., a Florida limited partnership
2. Landlord: City of South Miami
3. Guarantor: None.
4. Demised Premises:
(a) The municipal parking lot located at S.W. 73xd Street, S.W. 58th Avenue,
and S.W. 58th Court together with the air rights over the Mark Richmond Property (MRP)
located at the corner of S.W. 73'd Street and S.W. 58th Court, in the City of South Miami.
(b) Permitted use: mixed use retail, office and parking garage building.
5. Term:
(a) The term of the Lease will be for fifty (5 0) years (Section 4.1).
(b) Lease Start Date: The date the commencement of construction notice is
filed. Notice of commencement of construction must be filed within
ninety (90) days of the Permit Date (Section 9.2). Tenant must prepare all
working drawings and submit all permit applications within six months
(Section 8.4).
(c) No option to renew and extend.
(d) Lease Termination Events:
(i) if Tenant fails to commence construction on the Project within
ninety (90) days of the Permit Date (Section 9.2.1);
(ii) at Tenant's option, if casualty destroys the improvements during
the last five (5) years of the term of the Lease and the estimated cost for repair and
restoration exceeds five hundred thousand dollars ($500,000.00) (Section 21.5);
(iii) upon a taking of the demised premises (Section 13);
(iv) after an Event of Default, notice and failure to cure (Section 12);
(v) at Tenant's option, if the City is unable to resolve the alleyway
claim. If the Lease is terminated under this section, the City would
be responsible for reimbursing SPG for those reasonable and
necessary costs associated with the Lease (Section 7.3);
Page 1 of 5
(vi) if Tenant does not prepare all working drawings and submit all
applications for all permits required for commencement of
construction within six months or if Tenant fails to diligently
pursue the issuance of the Permits (Section 8.4).
6. Rent and Other Charges:
(a) Minimum Rent - $6,333.00 per calendar month if completion of
construction exceeds twelve months and forty -five days after the Permit Date. The
Minimum Rent payments shall continue until the parking structure has been issued a
certificate of occupancy or a temporary certificate of occupancy (Section 5.3);
(b) Participation Rent — 2.5% of gross income up to $1,400,000.00. 7% of the
gross income which exceeds $1,400,000.00. The Participation Rent is payable on May 5,
August 5, November 5, and February 5 of each Lease year (Sections 5.2.1 and 6.1);
(c) Basis of the Participation Rent — Section 5.2.2 defines "Gross Income" as
all monies derived from parking revenue and subtenant rental income actually received
by Tenant less standard tenant pass through expenses, interest, subtenant deposits,
proceeds from refinancing or transfer of leasehold interest, less cash or cash equivalent
reserves, sales tax collected from subtenant; security deposits, and casualty loss
reimbursements by insurers or proceeds from condemnation or settlements.
(d) Deposit: None.
(e) Other Charges:
(i) taxes and impositions;
(ii) penalty rent: failure of Tenant to pay any rent when due (after
written notice) shall accrue interest at the interest rate of twelve percent (12 %) (Section
12.1);
(iii) transfer fee: upon Tenant's transfer of its leasehold interest,
Tenant shall pay landlord a transfer fee of 2.5% of the net profits of the first
$1,400,000.00 of proceeds received by Tenant and 7% of the net profits which exceed
$1,400,000.00 (Section 22.5).
7. Landlord's Financial Obligations:
(a) The City assumes financial responsibility for the construction costs
associated with one additional parking level (approximately 110 spaces). The Tenant and
Landlord must agree on the estimated construction costs. If the parties cannot agree, the
matter will be submitted to arbitration. In no event will the construction costs exceed
$12,000 per space (Section 9.2.9).
Page 2 of 5
(b) Landlord may elect to pay its financial obligation in one lump sum within
forty -five days of completion of construction or on the same terms and conditions as
Tenant's financing for the project (Section 11.9).
(c) Landlord agrees to appropriate and budget funds to pay for its financial
obligations in the event the project does not generate sufficient funds (Section 11.11).
(d) Landlord shall assume financial responsibility for the additional operating
costs incurred by Tenant resulting from the additional parking level (Section 6.1.2).
(e) The interest penalty for failure by Landlord to pay its obligations when
due (after written notice) shall accrue interest at the interest rate of twelve percent (12 %)
(Section 12.5).
8. Miscellaneous:
(a) The Lease will be recorded in the public records.
(b) Ownership of the Building: SPG will deed the parking structure including
the air rights over the MRP property to the City on or before the end of the Lease term
(Section 20).
(c) In lieu of Minimum Rent, the City shall retain ownership over 73 metered
spaces and receive the revenues from those spaces (Section 5. L 1);
(d) Landlord Approval for Material Changes: Any changes which alter the
cost of the project by more than five percent or alter the intended use of the project must
be reviewed and approved by the Landlord (Section 8.3.4);
(e) Change after Receipt of Permits: If the City initiates a change in the plans
after Tenant has received its Permits, the City agrees to reimburse SPG those costs
associated with modifying the plans and obtaining additional Permits. To the extent that
the change causes SPG to exceed its construction schedule, the City would be responsible
for the Default Rent of $8,500 per month due to Mr. Richmond until the certificate of
completion for the exterior of the building is received (Section 8.5);
(f) Holiday Season Construction: SPG shall not engage in any construction
activities between Thanksgiving Day and December 26 of any year that materially impact
neighboring retail shops by severely impeding traffic flows on 73rd Street, 58th Avenue or
58th Court (Section 9.8);
(g) Financing: SPG shall procure a construction loan from an institutional
lender which provides such loans in the ordinary course of business (Section 9.1.7);
Page 3 of 5
(h) Tenant may mortgage and remortgage its leasehold interest provided that
any financing secured by a mortgage is paid off before the 48th year of the Lease. Tenant
may not cross collateralize the Project for purposes of providing additional security to
obtain financing for any asset other than the Project (Section 11.1);
(i) Lender's Remedies: SPG's lender shall have the right to foreclose on
tenant's interest and transfer the leasehold interest to a third party. In the event the City
does not approve the transfer, the City shall either assume responsibility for the operation
of the building and repay of the balance of the loan or purchase lender's interest in the
remaining leasehold term. The purchase price shall be the amount set forth in the
foreclosure judgment obtained by the Lender (Section 11.8);
0) Use and Care: SPG shall use the Parking Structure for general office use,
retail use and as a rental parking facility. (Sections 14 and 19) SPG shall not permit any
other use without first receiving Landlord's advance written consent.
(k) Repair and Maintenance: SPG shall (except the City's parking meters on
the second level) repair and maintain the parking structure (Section 15);
(1) Right to Transfer Leasehold: SPG 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 (Section 22.1). Mark Richmond shall have
a right of first refusal to any conveyance of SPG's leasehold interest (Section 22.6);
(m) Insurance: The insurance companies providing insurance coverage shall
have a best rating of B+ or equivalent (Section 23.3.4). SPG shall at its sole cost
maintain the following coverage:
Commercial General Liability - One million per occurrence
Umbrella Liability
Physical Property Damage Insurance -
Builder's Risk (during construction) -
Business Interruption
Three million dollars
100% replacement cost
one hundred percent (100 %)
replacement value
not less than six months of revenue
for the parking structure
(n) Security: SPG shall provide the City with a payment and performance
bond with a good and sufficient surety, naming the City as an obligee in a commercially
acceptable form (Section 9.5);
Page 4 of 5
(o) Signage: Signage on the facility shall comply with the applicable codes of
the City and any other jurisdiction having authority. The City shall be responsible for
providing way finding signs (not on the facility or land but in the vicinity of the facility)
(Sections 19.3 and 19.4);
(p) Municipal Space: SPG shall dedicate approximately 200 square feet of
space on the first floor to be used by Landlord for police purposes or for administrative or
uses that relate to municipal parking (Section 5.1.2);
(q) Night and Weekend Parking: The non - metered parking spaces shall be
made available for evening and weekend parking. (Section 19.1) SPG has also agreed to
make available, under conditions and limitations to be agreed on, the non - metered
parking for special events. The City reserves the right to set parking rates for a night and
weekend parking or special event parking (Section 19.5);
(r) Airspace Reversion Rights: The airspace reverts back to MRP if, after
completion of the building, there is a destruction of the Project and neither the Tenant nor
the City elect to cause the shell of the new MRP building to be rebuilt (Section 33);
(s) Reconstruction Rights: In the event the MRP building is demolished and
the Project is not constructed, MRP retains the right to reconstruct a building having the
same square footage, footprint and available parking spaces as the former structure
(Section 34).
Page 5 of 5
Y
To: City Commission,
City of South Miami
CITY OF SOUTH MIAMI
INTER - OFFICE MEMORANDUM
Date: January 11, 2001
AF
111.46VW1W
From: Luis R. Figueredo +� Re: Projected Construction Costs for City
of South Miami Municipal Garage
During a prior City Commission meeting, the City Commission directed staff to
furnish it with an estimate of the actual cost of construction to the City if it elected to build
the proposed municipal parking garage. For purposes of estimating construction costs, I have
obtained the actual construction costs for four garage projects in the area. The four projects
are:
• South Miami Hospital;
• Miami Beach, Park One;
• Baptist Hospital;
• Oak Avenue Parking Plaza.
South Miami Hospital Garage
The South Miami Hospital garage consists of nine levels of parking, which provides
the site with 743 additional parking spaces. The structure was constructed from pre -cast
concrete. This type of construction served two purposes: First, the garage could be erected
and completed much faster and required smaller staging areas. This helped to minimize the
amount of disruption caused by construction. Second, the cost of pre -cast construction is
slightly less than a "poured -in- place" concrete structure. This garage also has additional
architectural pre -cast elements applied to the fagade on the first three levels of the garage,
in order to provide an architectural match to existing buildings across the main entrance
court. A rendering together with a photograph of this garage is attached to this memorandum
under Exhibit 1. The architectural firm of Maspons, Goicoria, Estevez, Inc. (MGE) designed
the garage. MGE advises that the hard construction costs for each parking space equaled
$10,100. The hard construction costs do not take into account soft costs associated with the
construction project. Typically, soft costs consists of professional fees such as architectural
fees and engineering fees and for a project of this size usually range between 18% and 20%
of the total construction costs. Accordingly, I have estimated the soft costs for this project
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 2 of 9
to be $1,800 per space. Therefore, the actual cost - per -space for the South Miami Hospital
garage was $11,900 per space. Based on the foregoing, I estimate that actual construction
costs for the South Miami garage ranged between $8.8 and $8.9 million.
Miami Beach Garage
Miami Beach, Park One garage is projected to have seven levels of parking to
accommodate 350 parking spaces. This structure will have an extensive amount of retail
space on the ground level facing Ocean Drive. Unlike the South Miami Hospital garage, this
project is a "poured -in- place" concrete structure. MGE is also the architect for this project.
MGE advises that the extensive design elements required by Ocean Drive Art Deco building
regulations increased per parking space, construction costs to approximately $11,000 per
space. With the soft costs factored in, the actual cost per space for this project is estimated
at $12,980 per space. Renderings of the proposed structure are attached to this memorandum
as Exhibit 2.
Baptist Hospital Garage
The Baptist Hospital garage, when completed, will be a five level garage. This
project is currently under construction. This garage will accommodate 750 parking spaces.
MGE advises that this project like the South Miami garage is also being built from pre -cast
concrete. The hard cost per space for this garage is $10,000. Once the .soft costs are factored
in, the actual construction costs will range between $8.8 to $8.9 million. Pictures and
renderings are included under Exhibit 3.
Oak Avenue Parking Plaza
Coconut Grove, Florida
This garage most closely resembles the project initially envisioned for South Miami.
This garage consists of 404 parking spaces and 16,730 square feet of retail space at ground
level. The structure was designed by the firm of Spillis Candella DMJM. The structure
consists of five stories. The building height is approximately fifty feet. The hard costs
provided by Spillis Candella to complete this structure equal $4,700,000. I estimate that with
the soft costs factored in that the construction costs are closer to $6.4 million. A photograph
of the facility is included under Exhibit 4.
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 3 of 9
Project
Number of
Parking Spaces
Levels
Estimated Cost of
Construction
South Miami Hospital
743
9
$8.8 - $8.9 million
Miami Beach Park One
350
7
$4.5 million'
Baptist Hospital
750
5
$8.8 - $8.9 million
Oak Avenue Parking Plaza
404
5
$6.4 million
Proposed South Miami Garage
For purposes of this memorandum, I have estimated that the hard construction costs
per space proposed for the municipal parking garage to be located at S.W. 73rd Street, S.W.
58th Avenue and S.W. 58th Court to be $10,000 per space. The soft costs should equal
approximately 18% of the hard costs.
Assuming, the structure consists of 590 spaces and 16,000 square feet of retail space,
the construction costs for building out the retail space should cost $70.00 per square foot.
The build -out of the retail space (excluding tenant improvements) would equal $1,120,000.
The hard cost of construction for 590 spaces at 10,000 per space equals $5,900,000. The
total cost of construction (including soft costs) for the project would range between $8.2 and
$8.3 million dollars.
Below I have set forth four tables. Each table estimates monthly principal and interest
payments and annual debt service based upon the City obtaining eight million dollars of
project financing. Two of the tables estimate the loan payoff over a period of forty years ,
the remaining tables amortize the repayment over a thirty -year period. I have assumed that
the City would be able to borrow at an interest rate slightly better than the Prime Rate.
Therefore, I have calculated the debt service at seven and eight percent interest.
This estimate does not include build out of retail space estimated at $70.00 per square foot.
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 4 of 9
Eight Million Dollars ($8,000,000) loan amortized at 8% over a 40 year term
Height
Five
levels
City
paid
Spaces
Parking
Spaces
Retail
Replace
Meters
Spaces
avail.
100%
Cost
per
Space
Total
Hard
Soft
Factor
Per
space
Total
Grand
Total
Roof
110
10
110
0'
10
110
3`d
10
110
2nd
to
110
IA
16
40
16,000
$1,120,000
$1,321,600
56
590
590
53
73
464
10,000
$5,900,000
1,800
$6,962,000
$8,283,600
Annual
debt sery
$667,499.28
Term
40
Int. rate
8.00%
Monthly
princp
and int.
$55,624.94
Total #
of pmts
480
Total of
480 pmts
$26,699,968.89
Loan
amt.
$8,000,000
Total Int.
paid
$18,699,968.89
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 5 of 9
Eight Million Dollars ($8,000,000) amortized at 7% over 40 years
Height
Five
levels
City
paid
Spaces
Parking
Spaces
Retail
Replace
Meters
Spaces
avail.
100%
Cost
per
Space
Total
Hard
Soft
Factor
Per
space
Total
Grand
Total
Roof
110
5"'
10
110
4`1
10
110
3rd
10
110
2 "d
to
110
1s`
16
40
16,000
$1,321,600
56
590
590
53
73
464
10,000
$5,900,000
1,800
$6,962,000
$8,283,600
Annual
debtsery
$596,574.00
Term
40
Int. rate
7.00%
Monthly
princp
and int.
$49,714.50
Total #
of pmts
480
Total of
480 pmts
$23,862,961.14
Loan
amt.
$8,000,000
Total Int.
paid
$15,862,961.14
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 6 of 9
F.,aht Miltinn Dnllars (.".000.000) amortized at 8% over thirtv vears
o
Height
Five
levels
City
paid
Spaces
Parking
Spaces
Retail
Replace
Meters
Spaces
avail.
100%
Cost
per
Space
Total
Hard
Soft
Factor
Per
space
Total
Grand
Total
Roof .
110
5t"
10
110
0'
10
110
3`d
10
110
2 "d
10
110
15`
16
40
16,000
$1,321,600
56
590
590
53
73
464
10,000
$5,310,000
1,800
$6,962,000
$8,283,600
Annual
dehtsery
$704,414.04
Term
30
Int. rate
8.00%
Monthly
princp
and int.
$58,701.17
Total #
of pints
360
Total of
360 pmts
$21,132,419.73
Loan
amt.
$8,000,000
Total Int.
paid
$13,132,419.73
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 7 of 9
Eight Million Dollars ($8,000,000) amortized at 7% over thirty .years
Construction costs associated with adding one additional level of parking.
In the event the City elects to only assume financial responsibility for the costs
associated with adding one additional level of parking (110 additional parking spaces), the
costs should equal $1,298,000. If the City elects to finance the construction of the additional
level, its annual payments for a thirty year pay out, at eight percent interest, would equal
$114,460.08. The monthly principal and interest payment would be approximately
$9,538.94. The annual payment amortized over forty years, at eight percent interest, would
be $108,468.60 or $9,039.05 monthly.
Projected Parking Revenues
The revenue assumptions briefly discussed below are only included to provide the
Commission with a benchmark when evaluating the construction costs for a mixed use
parking facility. The revenue assumptions are not derived from any feasibility study.
SPG provided the City with two different market assumptions for calculating the
amount of revenue that each parking space would generate. The initial market assumption
Height
Five
levels
City
paid
Spaces
Parking
Spaces
Retail
Replace
Meters
Spaces
avail.
100%
Cost
per
Space
Total
Hard
Soft
Factor
Per
space
Total
Grand
Total
Roof
110
5"'
10
110
0°
10
110
3`d
10
110
2 °a
10
110
1st
16
40
16,000
$1,321,600
56
590
590
53
73
464
10,000
$5,310,000
1,800
$6,962,000
$8,283,600
Annual
debt sery
$638,690.40
Term
30
Int. rate
7.00%
Monthly
prinep
and int.
$53,224.00
Total #
of pmts
360
Total of
360 pmts
$19,160,711.86
Loan
amt.
$8,000,000
Total Int.
paid
$11,160,711.86
Construction costs associated with adding one additional level of parking.
In the event the City elects to only assume financial responsibility for the costs
associated with adding one additional level of parking (110 additional parking spaces), the
costs should equal $1,298,000. If the City elects to finance the construction of the additional
level, its annual payments for a thirty year pay out, at eight percent interest, would equal
$114,460.08. The monthly principal and interest payment would be approximately
$9,538.94. The annual payment amortized over forty years, at eight percent interest, would
be $108,468.60 or $9,039.05 monthly.
Projected Parking Revenues
The revenue assumptions briefly discussed below are only included to provide the
Commission with a benchmark when evaluating the construction costs for a mixed use
parking facility. The revenue assumptions are not derived from any feasibility study.
SPG provided the City with two different market assumptions for calculating the
amount of revenue that each parking space would generate. The initial market assumption
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 8 of 9
provided to the City by SPG estimated that each parking space would generate $6.00 of
revenue per day, per space. Subsequently, SPG estimated that actual revenue per space
generated at the parking garage would be closer to $1.00 per space, per day. For purposes
of this analysis, we have calculated revenues per space, per day at $6.00, $3.00 and $1.00.
Parking Revenues at $6.00 per day
SPG's initial revenue projections forecasted parking revenues of $6.00 per space, per
day. The revenues generated by 590 parking spaces at $6.00 per day equal $3,540.00 per
day. If that figure is multiplied by 365 days the revenues generated from the parking spaces
equal $1,292,000. SPG has since asserted that its original market assumption is unrealistic.
In fact, SPG now asserts that the average revenues generated by each space will equal $1.00
per space and not $6.00.
Unlike construction costs, parking revenues from the other garages are of limited
value since parking revenues are in most cases destination driven. I did, however, contact
the operator for the recently completed Oak Avenue Parking Plaza in Coconut Grove,
Florida. The operator advises that the parking garage is struggling. The operating budget
estimated that the facility would realize $655,000 in annual parking revenues. This figure
breaks down to $4.00 per space, per day. The operator for the garage did not disclose the
actual revenues generated by the facility. He did, however, suggest that the revenues
currently generated are dramatically less than the budgeted projections of $4.00 per day.
Parking Revenues at $3.00 and $1.00 per day
If the actual revenues generated by the facility equal $3.00 per space, per day, the
daily revenues generated for the garage would equal $1,770.00. Multiplied by 365 days, the
revenues from the parking spaces equal $646,050.
Under SPG's new market assumptions, the daily revenue for parking spaces would
equal $590.00 yielding an annual revenue of $215,350.
All of the revenue assumptions include current revenues generated by the 73 meters. They
do not include, however, any income that would be derived by the City from parking
enforcement.
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 9 of 9
Conclusion
If the parking structure generates revenues of $6.00 per space, per day as originally
projected by SPG, the revenues realized by the parking structure would be sufficient to
satisfy the annual debt service for an $8,000,000 loan. If the actual revenues generated per
space, however, fall below $4.00 per space, per day, the parking garage would in all
probability (excluding revenues derived from parking enforcement) not generate sufficient
revenue to service the annual principal and interest and pay the facility's operating costs. As
previously noted, the Oak Avenue Parking Plaza in Coconut Grove is currently generating
revenues which are less than $4.00 per space, per day. The generally accepted figure for
annual operating costs in this industry is $400 per space. Using this figure, the parking
facility's annual operating costs would equal $236,000. Consequently, the carrying costs for
the proposed parking facility would range between $700,000 and $900,000 annually.
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CITY OF SOUTH ',MIAMI
INTER- OFFICE MEMORANDUM
To: City Commission, Date: January 11, 2001
City of South Miami
From: Luis R Figueredo ' Re: Projected Construction Costs for City
of South Miami Municipal Garage
During a prior City Commission meeting, the City Commission directed staff to
furnish it with an estimate of the actual cost of construction to the City if it elected to build
the proposed municipal parking garage. For purposes of estimating construction costs, I have
obtained the actual construction costs for four garage projects in the area. The four projects
are:
• South Miami Hospital;
• Miami Beach, Park One;
• Baptist Hospital;
• Oak Avenue Parking Plaza.
South Miami Hospital Garage
The South Miami Hospital garage consists of nine levels of parking, which provides
the site with 743 additional parking spaces. The structure was constructed from pre -cast
concrete. This type of construction served two purposes: 'First, the garage could be erected
and completed much faster and required smaller staging areas. This helped to minimize the
amount of disruption caused by construction. Second, the cost of pre -cast construction is
slightly less than a "poured -in- place" concrete structure. This garage also has additional
architectural pre -cast elements applied to the fagade on the first three levels of the garage,
in order to provide an architectural match to existing buildings across the main entrance
court. A rendering together with a photograph of this garage is attached to this memorandum
under Exhibit 1 The architectural firm of Maspons, Goicoria, Estevez, Inc. (MGE) designed
the garage. MGE advises that the hard` construction costs for each parking space equaled
$10,100. The hard construction costs s do not take i nto a cc ount soft c o
sts associated with the
construction project. Typically, soft costs consists of professional fees such as architectural
fees and engineering fees and for a project of this size usually range between 18 % and 20 %
of the total construction costs. Accordingly, I have estimated the soft costs for this project
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 2 of 9
to be $1,800 per space. Therefore, the actual cost - per -space for the South Miami Hospital
garage was $11,900 per space. Based on the foregoing, I estimate that actual construction
costs for the South Miami garage ranged between $8.8 and $8.9 million.
Miami Beach Garage
Miami Beach, Park One garage is projected to have seven levels of parking to
accommodate 350 parking spaces. This structure will have an extensive amount of retail
space on the ground level facing Ocean Drive. Unlike the South Miami Hospital garage, this
project is a "poured -in- place" concrete structure. MGE is also the architect for this project.
s
MGE advises that the extensive design elements required by Ocean Drive Art Deco building
s regulations increased per parking space, construction costs to approximately $ 11,000 per
space. With the soft costs factored in, the actual cost per space for this project is estimated
at $12,980 per space. Renderings of the proposed structure are attached to this memorandum
as Exhibit 2.
Baptist Hospital Garage
The Baptist Hospital garage, when completed, will be a five level garage. This
project is currently under construction. This garage will accommodate 750 parking spaces.
MGE advises that this project like the South Miami garage is also being built from pre -cast
a
concrete. The hard cost per space for this garage is $10,000. Once the soft costs are factored
in, the actual construction costs will range between $8.8 to $8.9 million. Pictures and
renderings are included under Exhibit 3.
Oak Avenue Parking Plaza
Coconut Grove, Florida
This garage most closely resembles the project initially envisioned for South Miami.
This garage consists of 404 parking spaces and 16,730 square feet of retail space at ground
level. The structure was designed by the firm of Spillis Candella DMJM. The structure
consists of five stories. The building height is approximately fifty feet. The hard costs
provided by Spillis Candella to complete this structure equal $4,700,000. I estimate that with
the soft costs factored in that the construction costs are closer to $6.4 million. A photograph
of the facility is included under Exhibit 4.
Project
Number of
Parking Spaces
Levels
Estimated Cost of
Construction
South Miami Hospital
743
9
$88 - $8.9 million
Miami Beach Park One
350
7
$4.5 million'
Baptist Hospital
750
5
$8.8 - $8.9 million
Oak Avenue Parking. Plaza '
404
5
$6.4 million
Proposed South Miami Garage
For purposes of this memorandum, I have estimated that the hard construction costs
per space proposed for the municipal parking garage to be located at S.W. 73rd Street, S.W.
58th Avenue and S.W. 58th Court to be $10,000 per space. The soft costs should equal
approximately 18% of the hard costs.
Assuming, the structure consists of 590 spaces and 16,000 square feet of retail space,
the construction costs for building out the retail space should cost $70.00 per square foot.
The build -out of the retail space (excluding tenant improvements) would equal $1,120,000.
The hard cost of construction for 590 ,spaces at 10,000 per space equals $5,900,000. The
total cost of construction (including soft costs) for the project would range between $8.2 and
$8.3 million dollars.
I
Below I have set forth four tables. Each table estimates monthly principal and interest
payments_ and annual debt service based upon the City obtaining eight million dollars of
project financing. Two of the tables estimate the loan payoff over a period of forty years ,
the remaining tables amortize the repayment over a,thirty- year period. I have assumed that
the City would be able to borrow at an interest rate slightly better than the Prime Rate.
Therefore, I have calculated the debt service at seven and eight percent interest.
I'
i
.
d 1 to at 70.00 per square foot.
1 This estimate does not include build out of retail space estimated $ p q
Height
Five
levels
City
paid
Spaces
Parking
Spaces
Retail
Replace
Meters
Spaces
avail.
100%
Cost
per
Space
Total
Hard
Soft
Factor
Per
space
Total
Grand
Total
Roof
110
5dr
10
110
4dr
10 `
110
3rd
10
.110
2nd
10
110
lsr
16'
40
16,000
$1,120,000,
$1,321,600
Sb`
590
590
53
73
464
10;000
$5,900,000
1,800 =
$6,962;000
$8,283,600
Annual
debt sere
$667,499.28
Term
40
lnt. rate
8.00%
Monthly
prince
and lilt.
$55,624.94
Total #
of pmts'
480
Total of
480 pmts
$26,699,968.89
Loan
amt.
$8,000,000
Total Int.
paid
$18,699,968.89
v
Height
Five
levels
City
paid
Spaces
Parking
Spaces
Retail
Replace
Meters
Spaces
avail.
100 %
Cost
per
Space
Total
Hard
Soft
Factor-
Per
space
Total
Grand
Total
Roof
110
5d,
10
110
4111
10
110
Yd
10
110
2„d
10
110 ,
15`
16
40
16,000
$1,321,600
56
590
590
53
73
464
10,000
$5,900,000
1,800
$6,962,000
$8,283;600
Annual
debt sere
$596,574.00
Term
40
Int. rate
7.00%
Monthly
prince
and int.
$49,714.50
Total #''
of pmts
480
Total " of
480 pmts
$23,862,961.14
Loan
amt.
$8,000,000
Total Int.
paid
$15,862,961.14
Height
Five
levels
_City
paid
Spaces
Parking
Spaces
Retail
Replace
Meters `
Spaces
avail.
100%
Cost
per
Space
Total
Hard
Soft '
Factor
Per
space
Total
Grand
Total
Roof
110
5th
10
110
0'
10
110
3rd
10
110
2
10
110
IA
16
40
16,000
$1,321,600
56
590
590
53
73
464
10,000
$5,310,000
1,800
$6,962,000
$8,283,600
Annual
debt seiv
$704,414.04
Term
30
Int. rate
8.00%
Monthly
prince
and int.
$58,701.17
Total #
of pmts
360 ;
Total of
360 pmts
$21,132,419.73
Loan
amt.
$8,000;000
Total Int.
paid
-
$13,132,419.73
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 7 of 9
Eillht Million Dollars ($8,000,000) amortized at 7% over thirty years ,
Construction costs associated with adding one additional level of parking.
In the event the City elects to only assume financial responsibility for the costs
associated with adding one additional level of parking (I 10 additional parking spaces), the
costs should equal $1,298,000. If the City elects to finance the construction of the additional
level, its annual payments for a thirty year pay out, at eight percent interest, would equal
$114,460.08. The monthly principal and 'interest payment would be approximately
$9,538.94. The annual payment amortized over forty years, at eight percent interest, would
be $108,468.60 or $9,039.05 monthly.
Projected Parking Revenues
The revenue assumptions briefly discussed below are only included to provide the
Commission with a benchmark when evaluating the 'construction costs for a mixed use
parking facility. The revenue assumptions are not derived from any feasibility study.
SPG provided the City with two different market assumptions for calculating the
amount of revenue that each parking space would generate. The initial market assumption
a m.,
Height
Fiver
levels
City
paid
Spaces
Parking
Spaces
` Retail
Replace
Meters
Spaces
avail
100°%
Cost
per
Space
Total
Hard
Soft
Factor
Per
space
Total
Grand
Total
Roof
110
5 t
10
110
4m
10
110
3m
10
110
2 "a
10
110
151
16
40-
16,000
$1,321;600
56
590
590
53
73
464
10,000
$5,310,000
1,800 `
$6,962,000
:$8,283,600
Annual
debt sere
$638,690.40
Term
30
Int. rate
7.00%
Monthly
princp
and int.
$53;224.00
Total #
of pmts
360
Total of
360 pmts
$19,160,711.86
Loan
amt.
$8,000,000
Total hit.
paid
$11,160,711.56
Construction costs associated with adding one additional level of parking.
In the event the City elects to only assume financial responsibility for the costs
associated with adding one additional level of parking (I 10 additional parking spaces), the
costs should equal $1,298,000. If the City elects to finance the construction of the additional
level, its annual payments for a thirty year pay out, at eight percent interest, would equal
$114,460.08. The monthly principal and 'interest payment would be approximately
$9,538.94. The annual payment amortized over forty years, at eight percent interest, would
be $108,468.60 or $9,039.05 monthly.
Projected Parking Revenues
The revenue assumptions briefly discussed below are only included to provide the
Commission with a benchmark when evaluating the 'construction costs for a mixed use
parking facility. The revenue assumptions are not derived from any feasibility study.
SPG provided the City with two different market assumptions for calculating the
amount of revenue that each parking space would generate. The initial market assumption
a m.,
Memorandum to City Commission,,
City of South Miami
January 11, 2001
Page 8 of 9
provided to the City by SPG estimated that each parking space would generate $6.00 of
revenue per day, per space. Subsequently, SPG estimated that actual revenue per space
generated at the parking garage would be closer to $1.00 per space, per day. For purposes
of this analysis, we have calculated revenues per space, per day at $6.00, $3.00 and $1.00.
Parking Revenues at $6.00 per day
SPG's initial revenue projections forecasted parking revenues of $6.00 per space, per
days The revenues generated by 590 parking spaces at $6.00 per day equal $3,540.00 per
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day. If that figure is multiplied by 365 days the revenues generated from the parking spaces
equal $1,292,000. SPG has since asserted that its original market assumption is unrealistic.
In fact, SPG now asserts that the average revenues generated by each space will equal $1.00
per space and not $6.00.
Unlike construction costs, parking revenues from the other garages are of limited
value since parking revenues are in most cases destination driven. I did, however, contact
the operator for the recently completed Oak Avenue Parking Plaza in Coconut Grove,
Florida. The operator advises that the parking garage is 'struggling. The operating budget
estimated that the facility would realize $655,000 in annual parking revenues. This figure
breaks down to $4.00 per space, per day. The operator for the garage did not disclose the
actual revenues generated by the facility. He did, however, suggest that the revenues
currently generated are dramatically less than the budgeted projections of $4.00 per day.
Parking Revenues at $3.00 and $1.00 per day
If the actual revenues generated by the facility equal $3.00 per space, per day, the
daily revenues generated for the garage would equal $1,770.00. 'Multiplied by 365 days, the
revenues from the parking spaces equal $646,050.
Under SPG's new market assumptions, the daily revenue for parking spaces would
equal $590.00 yielding an annual revenue of $215,350.
All of the revenue assumptions include current revenues generated by the 73 meters. They
do not include, however, any income that would be derived by the City from parking
enforcement.
Memorandum to City Commission,
City of South Miami
January 11, 2001
Page 9 of 9
Conclusion
If the parking structure generates revenues of $6.00 per space, per day as originally
projected by SPG, the revenues realized by the parking structure would be sufficient to
satisfy the annual debt service for an $8,000,000 loan. If the actual revenues generated per
space, however, fall below $4.00 per space, per day, the parking garage would in all
probability (excluding revenues derived from parking enforcement) not generate sufficient
revenue to service the annual principal and interest and pay the facility's operating costs. As
previously noted, the Oak Avenue Parking Plaza in Coconut Grove is currently generating
revenues which are less than $4.00 per space, per day. The generally accepted figure for
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annual operating costs in this industry is $400 per space. Using this figure, the parking
facility's annual operating costs would equal $236,000. Consequently, the carrying costs for
the proposed parking facility would range between' $700,000 and $900,000 annually.
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DRAFT 01 -10 -010
LEASE AGREEMENT
between
CITY OF SOUTH MIAMI, as Landlord
and
SPG PHASE ONE, LTD., as Tenant
January _, 2001
TABLE OF CONTENTS
' Page
I l���i��o `
. .. . . . . . . . . . . . . . ^ . . . . . . . . . , . . . . . . . . . . . . . . ^ . ^ .^ . . . . . . . . . . - . ]
2. Definitions , . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .` . . . . ` . . . . .
3. Lease of Land 7
3.1. Lease 0f Land ............................................... 7
3-7, Airspace Termination ......................................... 7
4. 7ezol ...........'..`.........'..,...''..'...''.''.,'''.''''''.''
4`1. Original Term ............................................... 7
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5. y8r�oz� y Rent, Rent and Landlord Operational
Onuguuuo.....................',.....^'....'...,..^.......7
5.1. Second Level Space ,.....,..`........7
'
5. 1. 1 Second Level �ar��o���vem��
. . . . . . . . . . . . . , . . . . . '` . . . . . . 7
5.1.2 Municipal Space
5.2. Lease Year Percentage Rent ...................................
�
5`2.l. Percentage 8Lcot ..............``....'........'..'''....0
5.2.? '
` /��uozouoy ..................,.....,........`_........8
5-2.3. Limitation on Payment Obligation ....`..............^....Q
5� �Y�l�rnzol �cz�
. . . . . . . . . '. . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . , . . . 10
5.4 Landlord
h . Payment . . . . . . . ' . . . . . . . . ^ . . . . . . . . . . . .. .' . . . . . . . . . `
. . _ . . . . . . . `. . _ . 10
`
h.[ Percentage Rent ............'.......''............`...,..^.... 10
6. 1. Payment of Percentage Rent ......,..'..'.,.........'... lU
6l2 of Landlord Operational '
hl�' ' Annual Statement '''''''',''''.'.'.....'....'`...'..'. }O
6.1.4. Audit by Landlord ......,...'................'......., 10
6l5 of|�0n�o��� `
. . . �ncordm...........,..........' ll
6.1.6. Waiver 11
6�
. . Delivery of ruyu/uu/ ........................................ 11
6.3. D .............`..........'...........�.^......`.. I
7. Title; Delivery of Possession ...... ........... 11
7.1. Covenants of Title ... .......... .......... ............ 11
7.2. Environmental Condition ....... ......... ................. 12
7.3. Alleyway Considerations . ........... .. ................. 12
7.4. Possession ............................. ..... ...... .. 13
7.5. Title Requirements .. ........................... .... 13
8. Zoning, Development of Land and Pre - Construction Activity ............ 13
8.1. Development Rights ..... .......... ..................... 13
8.1.1. Parking Structure ........... .. .... ....... 13
8.1.2. New MRP Building .. ... ............ ..... 13
8.2. Plans and Schedules ..... .... .............. . 13
8.3. Landlord Approval ............... ....... .... ..... 14
8.3.1. Schematics and Preliminary Specifications ................. 14
8.3.2. Design Development Drawings ........ ... .. 14
8.3.3. Conform with AIA and BOMA Method ... ...... .. 14
8.3.4. Approval for Subsequent Material Changes ... 14
8.3.5. Procedure for Approvals ............................... 14
8.4. Permits ....... .. ............... ................... 14
8.5. Change After Receipt of Permits . ... ....... ... ..... 15
8.6. As -Built Drawings ...................... .......... .... 15
8.7. Designation of Landlord Representative ......................... 15
8.7.1. Approve Documents ........................ .. . 15
8.7.2. Consent to Actions ....... ......... ............. 15
8.7.3. Make Appointments ................... .. ...... . 15
8.7.4. Change of Representative .............................. 15
9. Construction of Project ............................................ 15
9.1. Conditions Precedent to Commencement of Construction ....... 15
9.1.1. Unavoidable Delays ................................... 16
9.1.2. Article 7 of MRP Agreement ............................ 16
9.1.3. Title Requirements of Paragraph 7.5 ...................... 16
9.1.4. Environmental Conditions of Paragraph 7.2 ................ 16
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9.1.5. Representations and Warranties of Landlord ............... 16
9.1.6. Permits ... ................: . ...... 16
9.1.7. Tenant's Financing ................. ..... ... 16
9.1.8. Title Insurance .. . ...... .... ....... ........ 16
9.1.9. Declaration .. ...... ...... .. 16
9.2. Commencement of Construction .. .. .... .. ........ 16
9.2.1. Delay of Commencement of Construction ................. 16
9.3. Performance ......... ... ..................... 17
9.4. Completion of Construction ..... .... ..... ... 17
9.5. Construction Period Indemnification and Security ................ 17
9.6. Subsurface Conditions ...................... .... ......... 17
9.7. Project Amenities . .......... ..... ......... .... 17
9.8. Holiday Season Construction .... ......... ........... .... 18
9.9. Calculation of Landlord Finance Obligation ...................... 18
10. Tax Treatment . ........ ................... .. ... 18
10.1 Tax Benefits ................... ................. .... .. 18
10.2 Tax Protests ................... .... .. . .......... 18
11. Leasehold Mortgage..'.... .............. ......................... 18
11.1. Tenant Right to Encumber Leasehold ....... ....... .. 18
11.2. Lender, Leasehold Mortgage . ........ ............ 19
11.3. Lender's Rights Upon Tenant Default . . ....... .... ....... 19
11.3.1.
General.......... .. ...... .... .........
19
11.3.2.
Landlord Notice to Lender ........................
19
11.3.3.
Lender's Right to Cure ...........................
19
11.3.4.
Time Period and Manner of Curing .................
20
11.3.5.
Nonmonetary Event of Default ....................
21
11.3.6.
Lender's Acquisition of Leasehold .................
21
11.3.7.
Bankruptcy and Similar Proceedings Against Tenant ...
21
11.3.8.
Method of Notice ....... . ........... ......
22
11.3.9.
Lender Foreclosure of Leasehold Mortgage ..........
22
11.3.10.
Lease with Lender Upon Termination
of Lease by Landlord ... . ............ ....
22
11.4. No Waiver of Landlord's Obligations ........................... 22
11.5. No Financing Liability ........ ............. ...... . ... 23
11.6. Payment of Landlord's Attorney's Fees .... ................ ... 23
11.7. Estoppel Certificates from Landlord ........................... 23
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11.8. Compliance with City Charter ............ ... .... .... 23
11.9. Payment of Landlord Obligations ...... ........ .... ... 23
11.10. Landlord's Cooperation with Financings ......................... 23
11.11. Landlord Obligations .. ..... .................... 23
12. Events of Default by Tenant ... .... .. .... ...... 23
12.1. Failure to Pay ... .. ......... ..... ........ . . 23
12.2. Failure to Perform... ... .... .. ............ .. ...... 24
12.3. Bankruptcy. Etc.......... . ... .... . ... 24
12.3.1. Bankruptcy Filing ... ............ . ... .. 24
12.3.2. Levy or Attachment .......... ... ....... . 24
12.3.3. Receiver, Etc.... ..................... ... 24
12.4. Remedies for Default by Tenant ......... ..... ........ 25
12.5. Events of Default by Landlord ............... .. ... 25
12.5.1. Failure to Pay . ........... ...... ..... 25
12.5.2 Failure to Perform .................................... 25
12.6. Remedies for Default by Landlord .......... . ... ... 26
13. Condemnation ................................................... 26
13.1. Taking of Entire Premises .... .... ....... .. 26
13.2. Proceeds of Taking ......................................... 26
13.3. Partial Taking; Termination of Lease ... ... ... ... ...... 26
13.4. Partial Taking; Continuation of Lease ........................... 27
13.5. Temporary Taking .......................................... 27
13.6. Additional Takings ............. ...... ............... ... 28
13.6.1. Making Repairs . ............................... 28
13.6.2. Terminating Lease .............................. 28
13.7. Inverse Condemnation or other Damages ...... ...... ....... 28
13.8. Involuntary Conversion ...................................... 28
13.9. Payment of Fees and Costs ................................... 28
14. Use and Care .................................................... 28
14.1. Use ............................ .... .... ....... ... 28
14.2. Operating Standards .......... ..... .. ......... 29
14.3. Use Restrictions ............................................ 29
14.4. Applicable Law ............................................ 29
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14.5. Environmental ...... ................ .... . . 29
15. Repair and Maintenance ............... ................ .... 29
15.1. Landlord's Responsibility .... .... ............. .. .. 29
15.2. Tenant's Responsibilities ............................ . .. 29
16. Loss of Property ........... ... ..... ... 29
17. Renovation ...................................................... 30
17.1. Tenant's Rights .............. ............ .. .... 30
17.1.1. Submission of Plans and Specifications ................... 30
17.1.2. Tenant to Obtain Approvals and Permits . .... ......... 30
17.2. Landlord's Cooperation ....................... ... .... 30
18. Access to Premises . ..... . ....... .......... .. ...... 30
19. Operation and Management of Improvements .. .......... ........... 31
19.1. Control of Parking Structure ............... .......... . 31
19.2. Non - Interference ........................................... 31
19.3. Rights to Erect Signs; Revenue Therefrom ............. 31
19.3.1. Procedure for Signs ...... ....... .... 31
19.3.2. Allowable Signs ....... ............................... , 31
19.3.3. Removal of Signs ............ ...... . .. ...... 32
19.3.4. Definition of Signs ............ .............. . 32
19.3.5. Revenue from Signs .... .................. .... ... 32
19.4. Landlord's Signs Upon the Project .............................. 32
19.5. Night and Weekend Parking for Special Events ................... 32
19.6. Indemnification ............. ............................... 32
20. Surrender of Parking Structure ........... .. ..... ...... 33
21. Destruction ........................ .... ........ 33
21.1. Tenant's Duty to Restore .. ... ............................ 33
21.2. Interrelationship of Lease Paragraphs ...... ...... ....... 33
21.3. Insurance Loss Payees .... . .......................... 33
21.4. Reconstruction Delay ........... ............ ......... 34
21.5. Termination by Destruction ................................... 34
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22
23
24.
25.
Sale of Leasehold, Subletting, Landlord's Assignment .... ..... .. . 34
22.1. Right to Transfer Leasehold .......... ............... .... 34
22.1.1. Rights to Sublease ... . .. .... ... .. 35
22.2. Landlord Assignment ...... . ................. ....... 36
22.3. Compliance with City Charter ........ ... ... .. 36
22.4. Right of First Refusal ....... ... 36
22.5 Fee Upon Transfer of Leasehold .. ... ...... .. ...... ... 36
22.6 MRP as Purchaser of Leasehold Interest ....... .... ...... 36
Insurance .......... ................... ....... ...... 36
23.1. Acquisition of Insurance Policies .. ... ....... .. 36
23.2. Types of Required Insurance ...... ... .................... 37
23.2.1. Commercial General Liability Insurance ............. 37
23.2.2. Umbrella Liability Insurance ...... ....... .... 37
23.2.3. Physical Property Damage Insurance . ... ..... 37
23.2.4. Builder's Risk Insurance .. ....... .... 37
23.2.5. Business (Interruption .. ... ................ . 37
23.3. Terms of Insurance ........... ............................... 38
23.3.1. Primary Policies ................................ 38
23.3.2. Notice of Change or Cancellation ... ... ..... 38
23.3.3. Landlord Not Responsible for Notice or Premiums ... 38
23.3.4. Insurance Company Rating .... .. ......... 38
23.3.5. Mortgage Endorsement .......................... 38
23.4. Landlord's Acquisition of Insurance ......... .......... . .. 38
23.5. Insurance Money and Other Funds Held in Trust .................. 38
23.6. Application of Proceeds of Physical Damage Insurance ............. 39
23.6.1. Distribution of Unutilized Proceeds ................. 39
23.7. Insurance Appraiser ..... ..... .... .... ........... 39
23.8. Waiver of Subrogation ... .................... ..... ..... . 40
23.9. Landlord's Insurance .......... ....... ........... . 40
Relation of the Parties .............. ..... ................... 40
Acts of God; Unavoidable Delays ............. ...... ........ 41
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25. 1. Acts of God .... ...... ...... .. ............... 41
25.2. Unavoidable Delays ... .. ................. ... 41
26. Landlord's Covenant of Quiet Enjoyment .. .... .... . ... 41
27. Brokerage ................ ... ...... ... .. ....... 41
28. Time of Essence ................... ........... .............. 41
29. Notices .................... ....... ................ 41
30. Compliance with Laws and Ordinances ................................ 42
30.1. Compliance .. ....... ............... ....... .. 42
30.2. Contest by Tenant ...................... . . .. ... 42
31. Representations and Warranties ........ .............. . ... 42
31.1. Landlord's Representations .......... . ....... ............ 42
31.1.1. Free of Violations .................................... 42
31.1.2. No Actions Affecting Use .... .. . ... 42
31.1.3. No Sewer Impairments .... .. .. . ............... 43
31.1.4. No Moratoria ........................................ 43
31.2. Landlord's Warranties ........ ............................... 43
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31.2.1. Authority to Bind ........... . ...... ....... ..
43
31.2.2. Free of Tenancies .....................................
43
31.3. Tenant's Representations and Warranties ........... ..... ....
43
31.2.1. Authority to Bind ...... ...............................
43
32.
Exculpation ............................ ....... .. .....
43
33.
Airspace Reversion Rights ... .......... ........ ...
43
34.
Rights With Respect to Old MRP Building .............................
44
34.1. Prior to Construction .... . .. ......... . .........
44
34.2. Destruction After Construction . ...............................
44
35.
MRP Consideration .. .. .. .................. ........ .
44
36.
General Provisions .... . .... .... .......... .. ..... .
44
36.1. Severability ........... .... ... .... .... .. .... ..
44
36.2. No Waiver .............. .......... .......... ......
44
36.3. Entire Agreement ....... ......... ................ ...
44
36.4. Successors and Assigns ......................... .. .. ...
45
36.5. Modification and Rescission .. ........ ............ .. ..
45
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36.6' '''''''^'''''''.''........................ 45
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36.7. .............................................. 45
36.8. Radon Disclosure ........................................... 45
36.9. No Discrimination ........................................... 45
� 36.10. Fees ' . . . . .' . . ., . . . . . . . . . . . . . . .. . ' . . . . ' . . . . . . . . . . 45
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36']]' Reasonableness of Approvals ................................. 45
� 36l7 '
. . .......................`............`.^.. 46
36i13. Memorandum of Lease ...................`.................. 46
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| BXHIBIIA - lepx Description of City Land ....'..........`.....`...`............ 48
�
� BXHlQITB - Te"» ofMRP Laud ......'.............,'............... 49
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| EXHTBITC - Tit}e Exceptions for City Land ......^...`...............''.......'.. 50
`
EXHlB[TD - F of Certificate of Waiver of Titl: Requirements and �
Airspace Conditions and Establishment 01Lease Commencement ........... 51
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LEASE AGREEMENT
This Lease is made by and between the City of South Miami, a municipality of Miami-
Dade County, Florida (hereinafter "Landlord ") and SPG Phase One, Ltd., a Florida limited
partnership (hereinafter "Tenant ") on the following terms and conditions:
RECITALS
A. Landlord owns certain unimproved Land (as hereinafter defined) located in the City
of South Miami, Miami -Dade County, Florida which is presently used solely as a public parking lot;
B. Landlord desires to lease the Land to Tenant to allow it to design, construct, lease, and
manage the Parking Structure (as hereinafter defined) which shall be a mixed -use retail, office and
parking garage building contemplated by Landlord pursuant to its general award set forth in
Resolution No. 198 -97 -10168 effective September 16, 1997, and
, (collectively, the "Resolutions ");
C. Landlord also desires to finance a portion of the construction costs of the Parking
Structure (as hereinafter defined) on the terms and conditions provided herein and pursuant to the
Resolution; and
D. Tenant desires to lease the Land from Landlord and thereafter to design, construct,
lease, and manage the Parking Structure (as hereinafter defined) consistent with the Resolutions and
in accordance with the terms and conditions provided hereinafter.'
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:
1. "Acceptance Notice" means the acceptance notice provided in Subparagraph
22.4.
2. "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
-1
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.
3. "Airspace" means that certain volume of air over the MRP Land as more
particularly described in the MRP Agreement.
4. "Airspace Reversion Rights" means the reversion of the Airspace to MRP as
more particularly described in Article 25 of the MRP Agreement.
5. "Alleyway Claim" means the potential claim of the owner of the adjacent
parcel of land situated immediately to the north of the Land as more particularly described in
Subparagraph 7.3.
6. "BOMA Method" means the Standard Method for Measuring Floor Area in
Office Buildings, as approved by the American National Standards Institute, Inc. and published by
the Building Owners and Managers Association International dated June 16, 1996.
7. "Charter" means the municipal charter of the City of South Miami, Florida.
8. "City" means the City of South Miami, Florida.
9. "Commencement of Construction" means the filing of the notice of
commencement by Tenant or Tenant's authorized representative for the construction of the Project.
10. "Common Areas" means those areas of the Project which are open for the use
by tenants of the Proj ect 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.
11. "Completion Date" means the date which is the earlier of the (i) Completion
of Construction as provided in Subparagraph 9.4 or (ii) the date which is 365-days after the Permit
Date.
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.
13. "Construction Lender" means the Lender providing the construction loan to
Tenant for the construction of the Project.
14. "Construction Period" means the period commencing with the PermitDate and
ending on the Completion of Construction.
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15. "Conveyance" means the deed to the Airspace, subject to the Airspace
Reversion Rights, to be recorded in the public records of Miami -Dade County that transfers
ownership of the Airspace from MRP to Tenant as more particularly described in the MRP
Agreement.
16. "Declaration means the Declaration of Easements Covenants and Restrictions
executed by Landlord, Tenant and MRP that will be filed in the public records of Miami -Dade
County, Florida, relating to the Project.
17. "Default Rate" means twelve (12 %) percent for purposes of Subparagraphs
12.1 and 12.5.
18. "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.
19. "Development Rights" means the rights granted to Tenant for the development
of the Project pursuant to the terms of this Lease.
20. "Effective Date" means the date this Lease is to be fully binding upon the
parties as stated on the execution page hereof.
21. "Gross Income" means all gross income derived from parking revenue and
Subtenant rental income actually received by Tenant as more particularly described in Subparagraph
5.2.2.
22. "Independent Accountant" means an accountant chosen by Tenant's accountant
and Landlord's accountant as more particularly described in Subparagraph 6.1.3.
23. "Independent Insurance Appraiser" means an insurance appraiser chosen by
Landlord and Tenant as more particularly described in Subparagraph 23.7.
24. "Land" means 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 description as set forth on Exhibit A, attached hereto, including all
rights and interests appurtenant thereto.
25. "Landlord" means the City of South Miami, Florida, a municipality located in
Miami -Dade County, Florida.
26. "Landlord Finance Obligation" means the Landlord's obligation to pay all fees,
costs, charges and expenses of every kind and nature attributable to or arising out of the design,
construction and financing of the Landlord Portion.
-3-
27. "Landlord Obligation" means the Landlord Finance Obligation and the
Landlord Operational Obligation.
28. " Landlord Operational Obligation" means the Landlord's obligation to pay all
fees, costs, charges and expenses of every kind and nature attributable to or arising out of, the
security, insurance and taxes incurred due to the Landlord Portion.
29. "Landlord Portion" means the third level parking deck of the Project which is
comprised of approximately 110 parking spaces.
30. "Lease Commencement Date" means the date of Commencement of
Construction. Landlord and Tenant shall establish the Lease Commencement Date pursuant to a
written instrument executed by both parties immediately after the Lease Commencement Date.
31. "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.
32. "Lease Term" means the period consisting of 50 consecutive Lease Years.
33. "Lender" means (whether foreign or domestic) a commercial bank, national
bank or savings and loan association, savings bank, trust company, finance company or insurance
company or any pension, retirement or welfare trust or fund, or pension advisor or investment advisor
investing funds for any such trust or fund or any limited partnerships, real estate investment trust or
other entity investing in commercial mortgage loans or any life insurance company or any other
similar institution in the business of making commercial mortgage loans or securitized mortgage
financing (or trustees for any such investors) or a subsidiary or Affiliate of any such institution or any
agent, designee or nominee of a lender which is wholly owned or any other entity commonly
recognized by the lending community as a lender or any group or combination of the foregoing.
34. "Minimum Rent" means the rent, if any, due from Tenant to Landlord as
provided in Subparagraph 5.3.
35. "MRP" means Mark Richman Properties, Inc., a Florida corporation, or any
successor thereto.
36. "MRP Agreement" means that certain Air Rights and Development Agreement
made by and between Tenant and MRP dated August 28, 2000 and any amendments or modifications
subsequent thereto;
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37. "MRP Land" means that certain improved lot at the corner of S.W. 73 Street
and S.W. 58" 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.
38. "Municipal Space" means a portion of the Parking Structure set aside for use
by the Landlord only for police purposes, those uses which relate to Municipal Parking or
administrative offices as more particularly described in Subparagraph 5.1.2.
39. "New MRP Building" means the shell of a new one story structure to be built
by Tenant on the MRP Land on behalf of MRP as a replacement for the Old MRP Building and over
which the Airspace will be occupied by a portion of the Parking Structure. The New MRP Building
shall contain approximately 11,500 square feet of gross area. The New MRP Building shall not
include any portion of the Parking Structure.
40. "Old MRP Building" means the existing one -story building located on the
MRP Land which is to be demolished and replaced with the New MRP Building.
41. "Parking Structure" means that portion of the Project which excludes the New
MRP Building and the MRP Land. A portion of the Parking Structure is located within the Airspace.
The Parking Structure includes the Landlord Portion.
42. "Percentage Rent" means the rent, if any, due from Tenant to Landlord as
provided in Paragraph 5.2.
43. "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.
44. "Permit Date" means the date all Permits are issued on a non - appealable basis
which allows the construction of the Project to proceed.
45. "Plans" means the plans, drawings„ and specifications referenced in
Subparagraph 8.2.
46. "Project" means the Land, the Parking Structure, the MRP Land and the New
MRP Building together with all other rights and interests appurtenant thereto. The Landlord Portion
is a part of the Parking Structure.
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;'?
47. "Project Schedule" means the project schedule developed by Landlord and
Tenant as provided in Subparagraph 8.2.
48. "Purchase Price" means the purchase price for the Lender's interest in the
Parking Structure as determined in Subparagraph 11.8.
49. "Reconstruction Rights" means MRP's right to build on the MRP Land under
the circumstances described in Article 26 of the MRP Agreement. -
50. "Rent means the sum of Minimum Rent, Percentage Rent and all other
charges, if any, due from Tenant to Landlord under this Lease.
51. "Resolutions" means the general award set forth in Resolution No. 198-97 -
10168 effective September 16, 1997,and
52. "Sale Notice" means the notice provided by Landlord to Tenant pursuant to
the right of first refusal contained in Subparagraph 22.4.
53. "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.
54. "Second Level Parking Deck" means'the second level ofthe Project which will
be used for municipal parking and consist of approximately 108 metered parking spaces.
55. "Second Level Parking Revenue means the parking revenue generated by the
metered parking spaces on the Second Level Parking Deck.
56. "Subtenant" means a person or firm who leases space in the retail or office
components of the Parking Structure or leases one or more parking spaces from the Tenant.
57. "Successor Tenant" means a person to whom Tenant's interest in the Lease is
transferred as more particularly described in Section 22.1.
58. "Taking" means the acquisition of all or a portion of Parking Structure by any
federal, state, county or municipal sovereign or their proper delegatees, by condemnation proceeding
by the power of eminent domain.
59. "Tenant" means SPG Phase One Ltd., a Florida limited partnership, any
successor thereto as a result of merger, consolidation, or other reorganization provided that the current
principal of SPG maintains controlling interest in the new entity; and any successor created as the
result of the death of the principal.
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60. "Transfer Fee" means the fee paid by Tenant to Landlord upon sale, assignment
or conveyance of Tenant's leasehold interest in the Project as more particularly described in
Subparagraph 22.5.
61. "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, 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.
62. "Work" means the repairs, alterations, restoration, replacements or rebuilding,
including temporary repairs for the protection of other property as more particularly described in
Subparagraph 21.1.
3. Lease of Land.
1. Lease of Land. 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 Land to have, hold, and use for the entire Lease
Term.
2. Airspace Termination. Pursuant to the MRP Agreement, all right, title and
interest to the Airspace will be transferred to Tenant upon satisfaction of the conditions provided in
Article 7 of the MRP Agreement. If the transfer of the Airspace to Tenant does not take place within
180 days of the Effective Date because the conditions provided in Article 7 of the MRP Agreement
have not been satisfied, at the option of Tenant, this Lease shall terminate and be of no further force
or effect, and the parties hereto shall be released of all liability and obligations hereunder except for
those that are expressly stated to survive the termination hereof.
4. Term.
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. Parking Meters, Percentage Rent, Minimum Rent and Landlord Operational
Obligation
1. Second Level Parking; Revenue; Municipal Space.
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5. 1. Revenue from Second Level Parking Deck.: The second level of the
Project will be used for municipal parking and consist of approximately 108 metered parking spaces
(the "Second Level Parking Deck"). Landlord, at Landlord's cost, shall supply 73 of the parking
meters to be installed on the Second Level Parking Deck, and Tenant, at Tenant's cost, shall supply
the balance of the parking meters to be installed on the Second Level Parking Deck. Tenant shall,
at Tenant's cost, install all of the parking meters on the Second Level Parking Deck. Landlord shall
own and be responsible for maintaining and repairing 73 of the parking meters on the Second Level
Parking Deck (the "Landlord Parking Spaces"). Tenant shall own and be responsible for maintaining
and repairing the balance of the parking meters on the Second Level Parking Deck (the "Tenant
Parking Spaces "). Landlord shall collect and retain the parking revenue from the Landlord Parking
Spaces and Tenant shall collect and retain the revenue from the Tenant Parking Spaces. Landlord and
Tenant shall agree upon a method for defining the parking spaces on the Second Level Parking Deck
as being either Tenant Parking Spaces or Landlord Parking Spaces in such a way as to equalize the
economic benefit to Landlord and Tenant on a pro rata basis (it being the intention that Landlord
derive approximately 73 /108 of the parking revenue from the Second Level Parking Deck and that
Tenant derive the benefit from the balance of parking revenue from the Second Level Parking Deck).
Tenant shall not participate in any revenue from parking fines collected by Landlord from parking
violations on the Second Level Parking Deck.
5.1.2. Municipal Space. Tenant shall set aside for Landlord's uses
approximately 200 square feet of space on the first floor of the Parking Structure in such location as
may be determined solely by Tenant from time to time (the "Municipal Space "). The Municipal
Space shall be used by the Landlord only for police purposes, those uses which relate to Municipal
Parking or administrative offices. Such use shall not interfere with the operation of the Project and
shall comply with all rules and regulations applicable to Subtenants. If Landlord vacates the
Municipal Space, Tenant shall have the right to retake such space and use the Municipal Space for
any purpose consistent with this Lease.
2. Lease Year Percentage Rent.
5.2.1. Percentages Rent. Commencing with the first Lease Year and for each
Lease Year thereafter during the Lease Term, Tenant shall pay Landlord annual Percentage Rent
equal to (i) 2.5% of the Gross Income up to $1,400,000 and (ii) 7 % of the Gross Income, if any, in
excess of $1,400,000 which was received by Tenant during the applicable Lease Year. Within 30
days following the end of each calendar quarter during the Lease Year, Tenant shall furnish to
Landlord a statement for the preceding calendar quarter reporting all items of income and exclusion
required to determine Percentage Rent payable for such period.
5.2.2. Definitions. For purposes of determining the Percentage Rent, "Gross
Income" means all gross income derived from parking revenue and Subtenant rental income actually
received by Tenant with respect to the operation of the Parking Structure but shall expressly exclude:
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(1) Insurance proceeds and other receipts from claims for losses or
damages to property, except for proceeds from business interruption and loss of revenue insurance;
(2) Proceeds from condemnation or settlements in lieu thereof,
except for proceeds attributable to a temporary taking of the use of any part of the Parking Structure
and paid to Tenant as reimbursement for the loss of parking revenue and Subtenant rental income;
(3) Proceeds from any financing or refinancing of Tenant's interest
in the Parking Structure or any portion thereof;
(4) Proceeds from any sale or other disposition of Tenant's right,
title, or interest in its leasehold estate created hereunder or any portion thereof;
(5) . Receipts from Subtenants as reimbursement for the operation
of the Project or as reimbursement of costs incurred for capital improvements whether or not financed
by Tenant separately from the construction or permanent financing for the Project;
(6) Subtenant deposits and all other deposits, and all earnings such
deposits thereon whether or not Tenant is required to and /or does maintain such deposits and earnings
in one or more separate accounts;
(7) Sales Tax collected from Subtenants or others;
(8) Interest on other earnings earned from cash or other investments
of Tenant;
(9) Operating expenses, ad valorem real and personal property taxes
and insurance of the Project which are reimbursed to or recovered by Tenant from Subtenants or
others whether directly as pass - through expenses charged to Subtenants under a net lease or indirectly
as part of the base rent or expense in excess of base year rent under a gross lease. Landlord and
Tenant acknowledge that as a mixed -use Project some Subtenants may have gross office or gross
retail 'leases and other Subtenants may have net office or net retail leases, and Landlord and Tenant
agree to make the necessary adjustments' hereunder to allow for such differences in the Subtenant
leases so as to assure that recoveries of operating expenses in all cases do not constitute Gross
Income; and
(10) Cash or equivalent reserves and earnings thereon established
by Tenant to pay for capital improvements to the Project or claims against the Project, provided:
(a) Landlord is notified thereof in writing at or before the
time any such reserve is established, which notice shall state the amount, purpose and timing of
anticipated expenditures, together with such additional information as may reasonably be required
to establish that such reserve is in compliance with the terms hereof. Tenant shall give Landlord
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prompt notice of all changes to the matters described in such notice and to other information
furnished to Landlord under this paragraph;
(b) Such reserve is designed to fund reasonably anticipated
expenditures described therein; and
(c) Such reserves shall be maintained in a separate,
identifiable account or accounts, and shall not be used, directly or indirectly, for any purpose other
than the purposes for which they are established.
5.2.3. Limitation on Payment Obli ag tion. Notwithstanding anything herein
to the contrary, Tenant shall not have an obligation to pay Percentage Rent to Landlord unless and
until Tenant (i) has as actually received the Gross Income upon which the Percentage Rent is
determined, (ii) is the uncontested and exclusive owner of such Gross Income, and (iii) has the
unrestricted power and right to pay Landlord a portion thereof as Percentage Rent without violating
any laws or agreements to which Tenant is or may be subject provided any such agreements are made
and entered into by Tenant on terms and conditions not prohibited hereunder.
3. Minimum Rent. If the Completion of Construction is more than twelve months
and forty -five days after the Permit Date, Tenant shall pay minimum rent to Landlord for the period
of time that starts twelve months and forty -five days after the Permit Date and ends upon Completion
of Construction ( "Minimum Rent "). The Minimum Rent shall be SIX THOUSAND THREE
HUNDRED THIRTY THREE DOLLARS ($6,333.00) per calendar month and shall be pro -rated for
partial calendar months. Monthly payments of Minimum Rent shall be made on or before the tenth
of each month following the month, or portion thereof, for which Minimum Rent is due. The
payment of Minimum Rent, if any, shall cease upon the Completion of Construction. If the
Completion of Construction is delayed by the Landlord and through no fault of Tenant, the payment
of Minimum Rent shall be abated for any such period.
4. Landlord Operational Obli action. Commencing with the first Lease Year and
for each Lease Year thereafter during the Lease Term, Landlord shall pay Tenant the Landlord
Operational Obligation.
6. Payment.
1. Percentage _ Rent.
6.1.1. Payment of Percentage . Commencing with the first Lease Year
during which Completion of Construction occurs, Tenant shall pay to Landlord on the 30' day after
the end of each calendar quarter during the Lease Term (i.e, on May 5, August 5, November 5 and
February 5) an amount equal to the Percentage Rent for such calendar quarter.
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- — ., -�s .,ea-a..?+�.�'; v"�, . £'S - e�-i;, �` n;"�. '- .,"- °K',��;� .r„ -.: ,. � ��'r: a s "�'��?.;:;:, �°", ; .�i' ,. ,-,; r-�'°�.'°^�' ;-.• -r .:-rte - -
6.1.2. Payment of Landlord Operational Obli ag tion. Commencing with the
first Lease Year during which Completion of Construction occurs, Landlord shall pay to Tenant on
the 30t' day after the end of each calendar quarter during the Lease Term (i.e, on May 5, August 5,
November 5 and February 5) an amount equal to the Landlord Operational Obligation for such
calendar quarter.
6.1.3. Annual Statement. Within ninety days of the end of each Lease Year,
Tenant shall retain an accounting firm to prepare and deliver a compilation report to Landlord which
reports the Gross Income for such Lease Year and provides in detail the calculation of the Landlord
Operational Obligation. In the event Tenant has paid more than the Percentage Rent established as
due for such Lease Year, the amount of the overpayment shall be deducted by Tenant from the next
succeeding payment or payments of Percentage Rent due hereunder. In the event Tenant has paid less
than the Percentage Rent for such Lease Year, Tenant shall pay Landlord on or before the 15t' day
of the following month the amount of such deficiency which shall be deemed to be Percentage Rent
due under this Lease. In the event Landlord paid more than the Landlord Operational Obligation
established as due for such Lease Year, the amount of the overpayment shall be credited against
Landlord's the next succeeding payment or payments of the Landlord Operational Obligation due
hereunder. In the event Landlord has paid less than the Landlord Operational Obligation due for such
Lease Year, Landlord shall pay Tenant on or before the 15' day of the following month the amount
of such deficiency.
6.1.4. Audit by Landlord. Upon reasonable notice from Landlord, Tenant
shall allow Landlord or Landlord's employees, agents, or accountants to examine the books and
records and review systems and procedures of Tenant for the purpose of verifying statements
furnished or to be furnished pursuant to Paragraph 6.1.2, which examination" shall be conducted
during ordinary business hours and in a manner that does not unreasonably interfere with the business
of Tenant. In the event Landlord's examination shows that Tenant has underpaid the Percentage Rent
during any Lease Year or Landlord has overpaid the Landlord Operational Obligation, Landlord shall
provide Tenant with written notice of such determination and associated backup documentation and,
within fifteen days of receipt of such written determination, Tenant shall either (i) pay such deficiency
by Tenant or overpayment by Landlord to Landlord, or (ii) provide Landlord with written notice that
Tenant disputes such determination. If Tenant disputes Landlord's determination as to the amount
or existence of an underpayment by Tenant and /or overpayment by Landlord, Tenant's accountant
and Landlord's accountant shall choose a third accountant ( "Independent Accountant ") who shall
decide the existence and /or amount of any such underpayment by Tenant and /or overpayment by
Landlord. The determination of the Independent Accountant shall be issued to Tenant and Landlord
in writing and shall be final and binding on the parties,, absent fraud, negligence or material error by
such Independent Accountant. In the event the underpayment is greater than 5% of the total
Percentage Rent payable with respect to such Lease Year, Tenant shall (i) reimburse Landlord the
reasonable expenses incurred in making such examination of Tenant's records and (ii) pay interest
at the rate of 18% o per annum with respect to such underpayment. If the payment of Percentage Rent
was greater than the amount due, such excess shall be credited against the next payment(s) of
Percentage Rent due hereunder.
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c577--97F
6.1.5. Maintenance ofBooks and Records. Tenant shall keep complete books
of account and records of all operations relating to the Parking Structure necessary to establish
Percentage Rent and the Landlord Operational Obligation. All of the books and records shall be
physically located and kept in Miami -Dade County, Florida and shall be retained fora period not less
than three years.
6.1.6. Waiver. In the event that neither Landlord nor Tenant objects to the
determination and /or payment of Percentage Rent or Landlord Operational Obligation within the one -
year period following the close of a Lease Year, the Percentage Rent and Landlord Operational
Obligation for such Lease Year shall be deemed to be conclusively determined, and the parties shall
have waived all rights to have such Percentage Rent and Landlord Operational Obligation
redetermined except upon showing of fraudulent conduct on the part of either party.
2. DelivM of Payment. Rent payments shall be by check made payable to "City
of South Miami" and, unless instructed otherwise by Landlord, delivered to:
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Attn: City Manager
3. Delinquency. The Percentage Rent is delinquent if not received by Landlord
on the 5th day of the month following the month in which such payment is otherwise due (i.e on May
5, August 5, November 5 and February 5). If not received by Landlord within five business days after
written notice of any delinquency is delivered to Tenant, Landlord may assess Tenant a charge of 5%
of the underpayment of such Percentage Rent per month for each month or part thereof until such
amount is paid in full. If Percentage Rent remains delinquent for forty -five (45) days after the date
which such rent is otherwise due, an Event of Default shall have occurred, and Landlord may proceed
to exercise all of its rights and remedies as provided in Paragraph 12. The Landlord Operational
Obligation is delinquent if not received by Tenant on the 5th day of the month following the month
in which such payment is otherwise due (i.e on May 5, August 5, November 5 and February 5).; If
not received by Tenant within five business days after written notice of any delinquency is delivered
to Landlord, Tenant may assess Landlord a charge of 5% of the underpayment of such Landlord
Operational Obligation per month for each month or part thereof until such amount is paid in full.
If the Landlord Operational Obligation remains delinquent for forty -five (45) days after the date
which such payment is otherwise due, an Event of Default shall have occurred, and Tenant may
proceed to exercise all of its rights and remedies as provided in Paragraph 12.
7. Title; Delivery of Possession.
1. Covenants of Title. Except as provided in Paragraph 7.3, Landlord represents
and warrants that, as of the Effective Date, Landlord is the owner of the Land and that the Landis free
from all liens, encumbrances, restrictions, covenants, and defects in title other than those set forth in
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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.
2. Environmental Condition. Landlord represents and warrants to Tenant that as
of the Effective Date the Land contains no Hazardous Materials (as hereinafter defined). In the event
the Land contains any Hazardous Materials as of the Effective Date, Tenant, in addition to any other
legal or equitable remedies available, may elect to cause such Hazardous Materials to be removed
from the land in compliance with all applicable laws, and, in such event, Landlord shall bear the cost
of such removal and remediation, and of any and all environmental assessments and investigations
that were incurred by Tenant as a result of such removal and remediation, however, Landlord shall
pay the cost of any such removal and remediation only if such removal and remediation are required
for construction of the Project, by any Lender, by governmental authority or by court order (in all
events, Landlord is required to pay the cost of any and all environmental assessments and
investigations that were incurred by Tenant as a result of such removal and remediation). In the
event the environmental assessments and investigations identify any unlawful and material
contamination in the environmental condition of the Land resulting from Tenant's actions that are
required to be remedied, then Tenant shall undertake the necessary obligations with respect to the
clean -up of the Land in accordance with applicable local, state and federal law. The term "Hazardous
Materials" shall mean any flammable or explosive materials, petroleum or petroleum products, oil,
crude oil, natural gas or synthetic gas used for fuel, radioactive materials, asbestos, ,hydrocarbon
products and derivatives, and hazardous wastes or substances or toxic waste or substances, including
without limitation, any substances now or hereafter defined as or included in the definition of
hazardous substances", hazardous wastes", toxic materials", toxic substances", 11special wastes",
"biomedical waste ", "biological waste" or other words of like import under any federal, state or local
rules, laws, regulations or requirements, including without limitation, Section 403.703, Florida
Statutes. Landlord agrees to indemnify and hold Tenant harmless from any and all claims, demands,
liabilities, losses, damages or expenses incurred by Tenant or its successors and assigns, arising as
a result of Landlord's breach or failure to perfonn any of the terns and conditions of this Paragraph
7.2. In the event that Landlord's remediation costs under this Paragraph 7.2 are in excess of
$1,000,000, Landlord shall have the option of providing Tenant with written notice of the amount of
remediation costs. Tenant shall then have the option of ,proceeding with this Lease and assuming the
obligation of paying such remediation costs in excess of $1,000,000, or terminating this Lease in
which case Landlord shall reimburse Tenant for all fees, costs, and expenses incurred by Tenant. If
Tenant exercises its option to proceed with the Lease and paying remediation costs in excess of
$1,000,000, the Landlord shall then have the right to terminate the Lease by paying Tenant, within
thirty days of exercising such option, its development costs incurred in this transaction. In the event
of termination hereunder, the parties shall be released from all liabilities and obligations except those
that are expressly stated to survive a termination hereof. This Subparagraph 7,2 shall survive the
termination of the Lease.
3. Alleyway Considerations. Landlord acknowledges that the owner of the
adjacent parcel of land situated immediately to the north of the Land has made certain claims with
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regard to the northern strip of the Land ( "Alleyway Claim"). Landlord and Tenant shall negotiate in
good faith to resolve all of the issues regarding the Alleyway Claims, including termination of the
Lease if the Alleyway Claims are not resolved in an expeditious manner. If the Lease is tenninated
due to Landlord's inability to resolve the Alleyway Claim, the Landlord shall reimburse Tenant for
Tenant's reasonable and necessary costs associated with this Lease. This Subparagraph 7.3 shall
survive the termination of this Lease
4. Possession. Tenant hereby accepts delivery of possession of the Land in "as
is" condition as of the Lease Commencement Date subject to Landlord's representations, warranties,
and covenants of title and environmental conditions as provided in Paragraphs 7.1 and 7.2,
respectively, Landlord's obligations with respect to the alleyway considerations as provided in
Paragraph 7.3 above, Tenant's rights as provided in Paragraph 7.5 below and further subject to
Tenant's right to conduct a title examination and all environmental site assessments with respect to
the Land as Tenant deems necessary.
5. Title Requirements. The title matters referenced in Exhibit C and the alleyway
considerations referenced in paragraph 7.3 are referred to as "Title Requirements. If the Title
Requirements are not satisfied or waived by Tenant within 90 days of the Effective Date, Tenant may
cancel this Lease by written notice to Landlord in which event this Lease shall terminate and be of
no further force or effect and the parties hereto shall be released of all liability and obligations
hereunder except for those that are expressly stated to survive the termination hereof. Upon the
satisfaction or waiver of the Title Requirements and the conditions referenced in Paragraph 3.2
(hereinafter referred to as the "Airspace Conditions), Landlord and Tenant shall promptly file in the
Public Records of Miami -Dade County, Florida a "certificate (in ° substantially the same form as
Exhibit "D" attached hereto and made a part hereof) evidencing that the Title; Requirements and
Airspace Conditions precedent have been satisfied or waived and setting forth the Lease
Commencement Date.
8. Zoning, Development of Land and Pre - Construction Activity.
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 maximum densities and uses described in paragraph 8. 1.1 and 8.1.2 below:
8.1.1. Parking Structure. A five -story mixed -use building containing
approximately 442 parking spaces, 16,700 square feet of ground floor retail space and 29,434 square
feet of office space to be built on the Land and in the Airspace.
8.1.2. New MRP Building. A one -story building with approximately 11,500
square feet of retail space.
2. Plans and Schedules. Prior to the Commencement of Construction, Tenant
shall diligently pursue the preparation of plans, drawings, and specifications (collectively, "Plans ")
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necessary for the construction of the Project. Landlord shall fully cooperate with Tenant 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 Development Code and other applicable law. Landlord
and Tenant agree to develop a project schedule that takes into account the agreement between Tenant
and its general contractor, the requirements of the Construction Lender, the MRP Agreement, any
commercially reasonable insurance or surety requirements and any items necessary for title insurance
( "Project Schedule "). If the construction portion of the Project Schedule exceeds twelve months,
Tenant must receive the Landlord's written approval, which approval shall not be unreasonably
withheld or delayed. If the Project Schedule exceeds twelve months due to delays caused by the
Tenant, Landlord's approval of such a Project Schedule shall not waive Landlord's rights with regard
to Minimum Rent as provided in Paragraph 5.3 hereof.
3. Landlord Approval. Landlord shall participate in design meetings as an
observer to allow sufficient familiarity with the Plans to facilitate the following review schedule:
8.3.1. Schematics and Preliminary Specifications. Schematic drawings and
preliminary specifications for the Project shall be provided to Landlord for its review and approval.
Landlord will complete its review of the same within seven business days after submittal to the
Landlord.
8.3.2. Design Development Drawings. Design development drawings for the
Project shall be provided to Landlord for its review. Landlord will complete its review of the same
within seven business days after submittal to the Landlord.
8.3.3. Conform with AIA and BOMA Method. 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.
8.3.4. Approval for Subsequent Material Changes. Landlord's approval shall
not be required for any further drawings, plans or specifications for construction of the Project or any
modification, replacement, alteration, or addition thereto, unless there is a material change in the
Plans previously approved by Landlord. Any material changes shall be reviewed by Landlord within
10 working days after submittal to the Landlord. "Material Changes" shall mean any changes to the
Plans which alter the cost of the Project by more than five percent or which alter the intended use of
the Project.
8.3.5. Procedure for Approvals. Approvals by Landlord under this Paragraph
8.3 shall not be unreasonably withheld or delayed. Approvals shall be deemed given unless Landlord
shall notify Tenant in writing stating the reasons for withholding such approval within ten business
days of the written request therefor, (except where the use of the Project is being changed, in which
case the written approval of the Landlord shall be required). Tenant shall, upon receipt of Landlord's
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reasonable objections, modify the Plans submitted, taking into account Landlord's objections, and
resubmit such revised Plans for approval by Landlord in accordance with this Paragraph 8.3.
4. Permits. All Permits shall be obtained at the sole cost and expense of Tenant;
provided, however, Landlord agrees to fully cooperate, at no cost or expense to Tenant, to apply for
and obtain all such Permits. Landlord's obligation to cooperate shall include the obligation to consent
to, except as hereinafter provided, and take the appropriate actions to assist Tenant to fulfill any
conditions that any other governmental authority may impose upon the issuance of the Permit for the
Project. If Tenant does not prepare all working drawings and submit all applications for all Permits
required for Commencement of Construction within six months of the Effective Date, or if Tenant
fails to diligently and expeditiously pursue the issuance of the Permits, then either party shall have
the option to terminate this Lease (the six month time period shall be extended for any delays caused
by Landlord's lack of cooperation as required under this Paragraph 8.4) in which case this Lease shall
be of no further force or effect and the parties hereto shall be released of all liability and obligations
hereunder except for those that are expressly stated' to survive the termination hereof. Landlord
agrees that the impact fees and permit fees applicable to the Project to be paid by Tenant to Landlord
shall be those impact fees and permit fees as are in effect on the Effective Date and Landlord agrees
to waive any increases in such impact fees and permit fees that occur after the Effective Date.
5. Change After Receipt of Permits. If Landlord initiates a change in the Plans
after Tenant has received the Permits, Landlord shall reimburse Tenant for any costs associated with
modifying the Plans, obtaining additional Permits and any other costs associated with delays in the
Project (including; any claims for damages by MRP which under the MRP, Agreement, which
damages are limited to Default Rent (as defined in the MRP Agreement) of $8,500 per month as more
particularly described in Section 18.3 of the MRP Agreement) or otherwise caused by Landlord's
change in the Plans.
6. As- Built Drawings. Upon completion of the Parking Structure, Tenant shall
deliver to Landlord one copy of complete as -built drawings of the Parking Structure and an as -built
survey showing the location of the Parking Structure and all underground improvements.
7. Designation of Landlord Representative. Landlord agrees to designate, in
writing, a person or persons who "shall have the power, authority and right, on behalf of Landlord, in
its capacity as Landlord hereunder, to:
8.7.1. Approve Documents. Review and approve all documents, plans,
applications, and requests required or allowed by Tenant to be submitted to Landlord pursuant to this
Lease.
8.7.2. Consent to Actions. Consent to all actions, events, and undertakings
by Tenant for which consent is required by Landlord; and
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8.7.3. Make Appointments. Make all appointments of persons, appraisers,
arbitrators or other individuals or entities required to be appointed or designated by Landlord in this
Lease.
8.7.4. Change of Representative. Landlord may change such designee at any
time upon written notice to Tenant.
9. Construction of Project.
1. Conditions Precedent to Commencement of Construction. Tenant shall not be
obligated to cause Commencement of Construction until the following are satisfied:
9.1.1. Unavoidable Delays. Tenant has not experienced any Unavoidable
Delay prior to the Commencement of Construction;
9.1.2. Article 7 of MRP Agreement. The conditions provided for in Article
7 of the MRP Agreement are satisfied;
9.1.3. Title Requirements of Parag Uh 7.5. The Title Requirements provided
for in Paragraph 7.5 of this Lease have been satisfied;
9.1.4. Environmental Conditions of Paragraph 7.2. The requirements of
Paragraph 7.2 of this Lease regarding environmental conditions have been satisfied;
9.1.5. Representations and Warranties of Landlord. The representations and
warranties of Landlord made herein are true and correct;
9.1.6. Permits. Tenant has been issued all Permits;
9.1.7. Tenant's Financing. Tenant has obtained a binding loan commitment
from a Construction Lender and there are no conditions that would prevent the Lender from funding
the loan in accordance with the loan commitment issued by the Construction Lender;
9.1.8. Title Insurance. Tenant and Construction Lender are able to obtain title
insurance acceptable to Tenant and Construction Lender and Landlord has complied with all the
requirements contained in the title insurance commitments issued for purposes of insuring Tenant's
leasehold interest in the Project and the Construction Lender's leasehold mortgage on the Project.
9.1.9. Declaration. The Declaration is executed by Landlord, Tenant and
MRP and filed in the public records of Miami -Dade County, Florida.
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2. Commencement of Construction. Subject to Subparagraph 9.1 and within 90
days of the Permit Date, Tenant shall, at its sole cost and expense, take such steps as are necessary
to cause Commencement of Construction in accordance with the terms hereof.
9.2.1. Delay of Commencement of Construction. If within 90 days of the
Permit Date, Tenant has not caused Commencement of Construction because items indicated in
Paragraph 9.1 have not been satisfied, either party which has satisfied its obligations under
Subparagraph 9.1 may terminate this Lease with prior written notice to the other party and this Lease
shall be of no further force or effect and the parties hereto shall be released of all liability and
obligations hereunder except for those that are expressly stated to survive the termination hereof.
Landlord, however, may not terminate this Lease if Tenant has taken good faith steps toward curing
a condition indicated in Paragraph 9.1 which is the obligation of Tenant and which can not be cured
within 90 days or if the delay is caused by the failure of a tenant of the Old MRP Building to vacate
its premises at the Old MRP Building. Any delay pursuant to this Paragraph 9.2 shall cause the
construction schedules developed by Tenant and Landlord to be adjusted accordingly.
3. Performance. After Commencement of Construction, Tenant shall diligently
pursue the construction of the Project in accordance with the construction schedule. At all times
during the Construction Period, Landlord shall use its reasonable efforts to provide all review and
approvals necessary or appropriate to avoid delay in the diligent prosecution of the work for the
construction of the Project. The construction schedule shall be developed by the Tenant and its
general contractor, and submitted to Landlord pursuant to Paragraph 8.2.
4. Completion of Construction. The completion of construction of the Project
shall occur upon issuance of a certificate of completion for the Parking Structure ( "Completion of
Construction").
5. Construction Period Indemnification and Security. During the Construction
Period, Tenant shall indemnify, protect, defend, and hold harmless Landlord from and against all
claims and liabilities arising by virtue of or relating to construction of the Project. If Tenant is
required to defend any action or proceeding pursuant to this paragraph to which action or proceeding
Landlord, is made a party, Landlord shall also be entitled to appear, defend, or otherwise take part in
the matter involved, at its election, by counsel of its own choosing, and to the extent Landlord is
indemnified under this Paragraph, Tenant shall bear the cost of Landlord's defense, including
reasonable attorneys' fees; provided, however, Tenant shall be responsible for Landlord's attorneys'
fees only if a single legal counsel (or a single firm of legal counsel) cannot represent both Landlord
and Tenant without there arising an actual or potential conflict of interest. Tenant shall cause its
general contractor to provide a payment and performance bond with a good and sufficient surety,
naming Landlord, Tenant and Construction Lender as joint obligees in a commercially acceptable
form.
6. Subsurface Conditions. The Landlord makes no warranty as to soil and
subsurface conditions. Tenant shall not be entitled to any adjustment of Rent or any applicable time
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frame or deadline under this Lease in the event of any abnormal subsurface conditions. If, however,
the subsurface conditions are so unusual that they could not have reasonably been anticipated, the
time periods for Commencement of Construction shall be extended by the reasonable time necessary
to accommodate the redesign and lengthened construction schedules resulting from such event.
7. Project Amenities. Tenant shall expend not less than one and one -half percent
(1.5 %) of the cumulative hard construction costs 'incurred by Tenant in connection with the
construction of the Parking Structure 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, courtyards, terraces,
walkways, roof gardens, passive and active recreational areas, murals, special graphic presentations,
entertainment areas, gazebos, water features and facilities, and works of art. Tenant and Landlord
anticipate that structural elements of the Project (including the inclusion of the New MRP Building
in the facade of the Project), as presently designed, will satisfy all of the Project amenities
requirement of this Subparagraph 9.7.
8. Holiday Season Construction. Tenant shall endeavor not to engage in
construction activities between Thanksgiving Day and December 26 of any year that materially
impact the neighboring retail shops by severely impeding traffic flows on 73' Street, 58t' Avenue or
581 Court. Any delays experienced by Tenant due to compliance with this Paragraph shall
accordingly adjust the construction schedules developed by Tenant and Landlord.
9. Calculation of Landlord Finance Obli ag tion. Upon Completion of
Construction, the Landlord and Tenant shall mutually determine the amount of the Landlord Finance
Obligation by executing a written instrument setting forth such amount and any other terms and
conditions that are appropriate for such confirmation. The Landlord Finance Obligation shall be
equal to the sum of: (i) the total of all fees, costs, expenses and other charges attributable to or arising
out of, directly or indirectly, the construction of the parking spaces of the Parking Structure multiplied
by a fraction whose denominator is the total number of parking spaces in the Parking Structure and
whose numerator is the total number of parking spaces in the Landlord Portion; and (ii) the portion
of the construction period financing, loan closing costs, professional fees, design costs and other soft
costs of the Project properly allocable to the Landlord Portion. If the Landlord and Tenant are unable
to agree on the Landlord Finance Obligation within thirty days of the Completion of Construction,
Landlord and Tenant agree, within ten days of written notice by either party, to submit the 'issue to
binding arbitration under the rules of the American Arbitration Association. In no event shall the
amount calculated in Subparagraph 9.9(i) above exceed $12,000 per parking space.
10. Tax Treatment.
1. Tax Benefits. Landlord and Tenant agree that the maximum federal and state
tax benefits (other than ad valorem taxes) arising from the ownership of, or otherwise relating to, the
Parking Structure and the right to reduce or avoid such taxes as permitted by law such shall inure to
the benefit of Tenant and not the Landlord. The foregoing tax benefits, shall include, but not be
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limited to, all rights to depreciation and tax credits available under federal and state income tax laws.
Landlord shall cooperate with Tenant, at no outside cost to Landlord, to obtain any tax rulings which
may be necessary or desirable (from the Internal Revenue Service, Florida Department of Revenue,
or other authority having jurisdiction) so that Tenant can obtain the tax benefits or reduction in taxes
contemplated by this Paragraph 10.
2. Tax Protests. Tenant shall have the right to protest any ad valorem property
taxes`on the Project. If there shall be any tax certiorari proceedings or tax protest proceeding with
respect to the Project, Tenant may pursue such protests and appeals and take such related action
which Tenant deems appropriate in connection therewith. Landlord shall cooperate with Tenant, at
no outside cost to Landlord, in connection with such proceedings and appeals and collection of a
refund of real or personal property taxes paid. Tenant owns and holds all right; title and interest in
and to such tax assessment protest, appeals, and refunds, and all amounts recoverable in connection
therewith shall be paid directly to Tenant by the applicable authorities. If such refund or any part
thereof is received by Landlord, Landlord shall promptly pay such amount to Tenant. Any refund
received by Tenant shall not be Gross Income as provided in Subparagraph 5.2.2 (9).
11. Leasehold Mortitaae.
L Tenant Right to Encumber Leasehold. Subject, to the provisions of this
Paragraph 11, Tenant shall have the right at any time and from time to time to encumber the leasehold
estate created by this Lease by a Leasehold Mortgage (as defined below), deed of trust or other
security instrument, including, without limitation, an assignment of the rents, issues and profits from
the Parking Structure to secure repayment of a loan or loans and associated obligations made to
Tenant by a Lender (as defined below) for the financing of the construction or development of the
Parking Structure made pursuant to the terms of this Lease or for the temporary` or permanent
financing or refinancing of any such Parking Structure. Tenant shall deliver to Landlord promptly
after execution by Landlord a true and verified copy of any Leasehold Mortgage and any amendment,
modification or extension thereof, together with the name and address of the owner and holder
thereof. Landlord shall not encumber or attempt to encumber the Project as security for any
indebtedness of Landlord with respect to any other property now or hereinafter owned by Landlord,
and any such attempt shall be null and void and also constitute a default hereunder. Tenant shall have
the right to replace any construction financing' obtained for purposes ofbuilding the Parking Structure
with permanent financing secured by a mortgage on Tenant's leasehold interest in this Lease. Any
financing secured by the Project shall be paid off on or before the 48' year of this Lease and no
financing shall have an amortization schedule that would require payments after the 48t' year of this
Lease. Tenant shall not cross collateralize its interest in the Project for purposes of providing
additional security to obtain financing for any asset other than the Project.
2. Lender, Leasehold Mortgage. "Lender" shall mean (whether foreign or
domestic) a commercial bank, national bank or savings and loan association, savings bank, trust
company, finance company or insurance company or any pension, retirement or welfare trust or fund,
or pension advisor or investment advisor investing funds for any such trust or fund or any limited
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partnerships, real estate investment trust or other entity investing in commercial mortgage loans or
any life insurance company or any other similar institution in the business of making commercial
mortgage loans or securitized mortgage financing (or trustees for any such investors) or a subsidiary
or Affiliate of any such institution or any agent, designee or nominee of a lender which is wholly
owned or any other entity commonly recognized by the lending community as a lender or any group
or combination of the foregoing. "Leasehold Mortgage" shall mean any one or more mortgages, deeds
of trust, deeds to secure debt, loan deeds, trust indentures, security agreements, assignment of rents,
issues and profits or any similar security or title retention device, which shall, from time to time,
create a lien or encumbrance upon the property, interest or rights of a party in its respective property
and which shall be security for one or more notes, bonds or other evidences of indebtedness issued
by a party.
3. Lender's Rights Upon Tenant Default. During the term of any Leasehold
Mortgage and until such time as the lien of any Leasehold Mortgage has been extinguished, the
following shall apply:
1 1.3.1. General. Landlord shall not agree to any termination nor accept
any surrender or cancellation of this Lease encumbered by the Leasehold Mortgage (except upon the
expiration of the term of this Lease) nor shall Landlord consent to any amendment, modification or
mortgaging or other hypothecation of this Lease without the prior written consent of Lender;
11.3.2. Landlord Notice to Lender. Notwithstanding any Event of
Default by Tenant in the performance or observance of any covenant, condition or agreement of this
Lease, Landlord shall have no right to terminate this Lease even though an Event of Default under
this Lease shall have occurred and be continuing, or exercise its other remedies in connection with
this Lease unless and until Landlord shall have given the Lender written notice of such Event of
Default and Lender shall have failed either to remedy such default in accordance with Paragraph
11.3.4 below, to acquire Tenant's leasehold estate created hereby or to commence foreclosure or other
appropriate proceedings in the nature thereof, all as set forth in, and within the time specified by this
Paragraph 11.
11.3.3. Lender's Right to Cure. Subject to the other provisions of this
Paragraph 11.3, any Lender shall, upon the occurrence of an Event of Default by Tenant, have the
right, but not the obligation, to pay the Rent and other payments due hereunder as such become due
(including any interest accrued thereon), to provide any insurance, to pay any taxes (including any
penalties) and make any other payments, to make any repairs, to continue to construct and complete
the Project, and do any other act or thing required of Tenant hereunder, and to do any act or thing
which may be necessary and proper to be done in the performance and observance of the covenants,
conditions and agreements, including without limitation any of the same as may be done in order to
prevent the termination of this Lease or the exercise by Landlord of its other remedies in connection
with this Lease. All payments so made and all things so done and performed by Lender, if done
timely and in accordance with the other provisions of this Paragraph 11.3, shall be effective to prevent
a termination of this Lease or the exercise by Landlord of its other remedies in connection with this
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Lease as the same would have been if made, done and performed by Tenant instead of by Lender.
Any Lender exercising its rights hereunder to cure or remedy any breach or default shall be entitled
to add the cost thereof to the Leasehold Mortgage debt and the lien of its Leasehold Mortgage;
11.3.4. Time Period and Manner of Curing. Should any Event of
Default of Tenant under this Lease occur, Lender shall have 90 days after receipt of written notice
from Landlord setting forth the nature of such Event of Default, to cure same in the event of a
monetary default or to commence and thereafter proceed expeditiously to cure in the event of a non
monetary default. If the Event of Default is such that possession of the Parking Structure may be
reasonably necessary to cure such default (payment of Rent or other monetary obligation not being
such default) or if the default is of the type that cannot reasonably be cured by Lender, Lender shall,
if it wishes to preserve its rights pursuant to this Paragraph 11, within such 90 day period, either
commence and diligently prosecute a foreclosure action or such other proceeding or take whatever
action to acquire Tenant's leasehold interest as may be necessary to enable Lender to obtain such
possession and acquire title thereto. Landlord shall not terminate this Lease or otherwise exercise its
remedies if the Event of Default of Tenant has been cured in the case of monetary, defaults or if
Lender is otherwise proceeding as provided herein in the event of non monetary defaults. Landlord's
forbearance in taking action based upon the Event of Default of Tenant and in allowing Lender the
opportunity to cure same (or, if the default cannot be cured by Lender), to acquire Tenant's leasehold
interest in lieu of such cure is expressly dependent upon (a) Lender having fully cured any default in
the payment of any Rent and other monetary obligations of Tenant under this Lease within such initial
90 day period and thereafter (if Tenant fails to do so) continuing to pay, currently such Rent and other
monetary obligations as and when the same are due, and (b) if possession is required in order to cure
(it being agreed that no monetary', Event of Default shall require possession in order to cure same),
Lender shall have acquired` Tenant's leasehold estate created hereby or commenced foreclosure or
other appropriate proceedings in the nature thereof within such initial 90 day period or prior thereto,
and shall be diligently and continuously prosecuting any such proceedings to completion to enable
Lender to acquire possession and title to Tenant's leasehold interest. All rights of Landlord to
terminate this Lease and to exercise its other remedies in connection with this Lease a's the result of
the occurrence of any such Event of Default of Tenant shall be subject to and conditioned upon
Landlord having first "given Lender written notice of such Event of Default and Lender having failed
to remedy such default (or, if the default cannot reasonably be cured by Lender, to acquire Tenant's
leasehold interest in lieu of such cure) as set forth in and within the time period specified by this
Paragraph 11.3.4;
11.3.5. NonmonetM Event of Default. A nonmonetary Event of
Default of Tenant under this Lease which, by the nature thereof cannot be cured by Lender without
possession or ownership of the Parking Structure shall not be deemed required to be cured until
Lender has possession and ownership thereof. If, after obtaining possession of the Parking Structure,
Lender cannot cure such nonmonetary Event of Default, it shall be waived by Landlord if (a) within
90 days after receiving written notice from Landlord setting forth the nature of such Event of Default,
Lender shall have acquired the Project in question or commenced foreclosure or other appropriate
proceedings in the nature thereof or otherwise proceed to acquire the same; (b) Lender shall diligently
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and continuously prosecute any such proceedings to completion and acquisition and possession of
the Parking Structure (c) Lender shall have fully cured any default in the payment of any Rent and
other monetary obligations of Tenant under this Lease within such 90 day period and shall thereafter
(if Tenant fails to do so) continue to faithfully and timely pay all Rent and other monetary obligations.
11.3.6. Lender's Acquisition of Leasehold. Upon the acquisition of
Tenant's leasehold interest and the taking of possession of the Project by Lender under the provisions
of this Paragraph, Lender shall perform all of the obligations of the Tenant hereunder as and when
the same become due or required and, in the case of those defaults reasonably capable of cure by
Lender, will have 90 days to cure (or if the Event of Default cannot be reasonably cured within 90
days, then such additional time as may reasonably be necessary to cure the same provided Lender has
commenced to cure the same within such 90 day period) those Events of Default which have already
occurred including, but not limited to, the commencement of operation of the Project if the Project
has not been operating during the proceedings.
11.3.7. Bankruptcy and Similar Proceedings Against Tenant. If the
Lender is prohibited by any process or injunction issued by any court or by reason of any action by
any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings
involving Tenant from commencing or prosecuting foreclosure or other appropriate proceedings in
the nature thereof or taking any other action required by subparagraph 11. 3.4 and 11. 3.5 above, the
times specified in subparagraphs 11.3.4 and 11.3.5 above for commencing or prosecuting such
foreclosure or other proceedings and for taking such other action shall be extended for the period of
such prohibition, provided that Lender shall have, within the initial 90 day notice period, fully cured
any default in the payment of any Rent or other monetary obligations of Tenant under this Lease and
shall (if Tenant fails to do so), continue to pay currently such Rent or other monetary obligations of
Tenant as and when the same fall due, and provided that Lender, within 120 days after the filing of
such bankruptcy, debtor rehabilitation or insolvency proceedings, shall diligently attempt and
continue to attempt to remove any such prohibition;
11.3.8. Method ofNotice. Landlord shall mail to Lender two duplicate
copies by certified mail of any and all Events of Default and other notices that relate to
noncompliance with the terms of the Agreement which Landlord may from time to time give to or
serve upon Tenant pursuant to the provisions of this Lease, and no such notice shall be deemed to
have been given until a copy thereof shall have been received by Lender;
11.3.9. Lender Foreclosure of Leasehold Mortizaae. Foreclosure of a
Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any
power of sale contained in the Leasehold Mortgage, or any conveyance of the Parking Structure from
Tenant to Lender, its designee or nominee by virtue or in lieu of the foreclosure or other appropriate
proceedings in the nature thereof, shall not require the consent of Landlord or, provided Lender has
complied with the provisions of Paragraph 11, constitute a breach of any provision of or an Event of
Default under this Lease. Upon such foreclosure, sale or conveyance, Landlord shall recognize
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Lender, or any other foreclosure sale purchaser, as tenant hereunder, provided it complies with the
provisions of the terms and conditions of this Lease.
11.3.10. Lease with Lender Upon Termination of Lease by Landlord.
Should Landlord terminate this Lease by reason of any uncured Event of Default hereunder or should
Landlord terminate this Lease without the consent of all Leasehold Mortgagees, Landlord shall give
written notification thereof to each Leasehold Mortgagee affected thereby and Landlord shall, upon
written request by Lender to Landlord received within 90 days after such termination, execute along
with Lender and deliver within 60 days after such request, a new lease of the Parking Structure to
Lender for the remainder of the term of this Lease with the 'same covenants, conditions and
agreements as are contained herein; provided, however, that Landlord's execution and delivery of
such new lease of the Parking Structure, shall be made without representation or warranty of any kind
or nature whatsoever either express or implied including, without limitation, any representation or
warranty regarding title to the Project other than those contained in this Lease and in any event
without representation or warranty as to the priority of such new lease. Landlord's obligation to enter
into such new lease of the Parking Structure with the Lender shall be conditioned upon Lender, on
the date the new lease is executed, having paid all Rent or other monetary defaults hereunder or
thereunder and having remedied and cured all nonmonetary defaults of Tenant susceptible to cure by
Lender.
4. No Waiver of Landlord's Obligations. Nothing contained herein or in any
Leasehold Mortgage shall be deemed or construed to relieve Landlord from the full and faithful
observance and performance of its covenants, conditions and agreements contained herein, or from
any liability for the nonobservance or nonperformance thereof, or to require, allow or provide for the
subordination to the lien of such Leasehold Mortgage or to any Lender of any estate, right, title or
interest' of Landlord in or to the Leased Property or this Lease.
5. No Financing Liability. Except as required for the Landlord Finance
Obligation, Landlord shall not be required to join in the Leasehold Mortgage or be liable for it in any
way.
6. Payment of Landlord's Attorneys' Fees. Any Lender which seeks the benefit
of the terms and provisions of Paragraph 11 shall, as a .condition of Landlord's performance
thereunder, pay the reasonable attorneys' fees and costs of any outside counsel representing Landlord
in connection therewith.
7. Estoppel Certificates from Landlord. Upon request of Tenant or any Leasehold
Mortgagee or Subtenant, Landlord agrees, within ten (10) days after such request, to give such
requesting party an estoppel certificate stating therein that Tenant is not in default, that the Lease is
in full force and effect, and that all conditions for effectiveness' of the Lease are satisfied and that the
Lease has not been modified, or otherwise to specify which of the foregoing is not correct and to what
extent.
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8. Compliance with City Charter. For so long as the City of South Miami shall
be the Landlord under this Lease, any mortgages or other security interests granted by Tenant with
respect to the Parking Structure 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. To the extent
a Lender is unable to either foreclose on Tenant's (or a Successor Tenant's) interest in this Lease or
transfer such leasehold interest to a third party because the City of South Miami Commission elects
not to approve such transfer, the Landlord shall then either (a) purchase the Lender's interest in this
Lease, or (b) the City shall assume the Tenant's (or a Successor Tenant's) obligations under this
Lease. In the case of a purchase by the City of South Miami, the purchase price paid to the Lender
shall be the amount set forth in the foreclosure judgment obtained by such Lender ( "Purchase Price).
In the case of an assumption by the City of South Miami, the City of South Miami shall provide the
Lender with a'guarantee of this Lease and shall pay to Lender all of Lender's reasonable cost in
obtaining a foreclosure judgment against Tenant (or a Successor Tenant). In the case of a conflict
between the provisions of this Subparagraph 11.8 and the balance of Paragraph 11, the provisions of
this Subparagraph 11.8 shall control.
9. Payment of Landlord Obligation . The Landlord shall obligate itself to pay
the Landlord Finance Obligation. The Landlord may elect to pay the Landlord Finance Obligation
to Tenant either: (i) on a lump sum basis within forty -five days of Completion of Construction; or (ii)
Landlord may finance the Landlord Finance Obligation on the same terms and conditions (except
with regard to credit underwriting) as the Tenant's financing for the Project. The Landlord shall make
such election in writing and deliver the same to Tenant within forty -five (45) days of the Effective
Date. If Landlord's fails to make such an election on a timely basis, Landlord will be deemed to have
elected item (ii) above, and therefore to finance the Landlord Finance Obligation as provided above.
The Landlord shall, on a timely basis, execute such documents as may be required by the Lender in
order to evidence the Landlord's obligation to pay the Landlord Finance Obligation, in accordance
with Subparagraph 11.11 if any.
10. Landlord's Cooperation with Financings. The Landlord shall cooperate with
the Tenant in review, execution and delivery of all documents necessary to obtain construction
financing, permanent financing and, from time to time, refinancings from anyLender. The Landlord
shall cooperate not only in regard to the Landlord Finance Obligation, but also with regard to the
Tenant's portion of any such loan.
11. Landlord Obligations. The Landlord acknowledges that its obligations under
this Lease, including, but not limited to, the Landlord Obligations, represent a deferred payment
obligation on the part of the Landlord in the amounts and in the manner set forth in this Lease. If
compliance with Paragraph 11.9 above, Landlord shall each year appropriate and budget to pay
for the Landlord Obligations such that in the event the Project does not generate sufficient funds for
the Landlord to pay the Landlord Obligations, such budgeted funds will be immediately available to
satisfy the Landlord Obligations. The obligation to approximate and budget funds as provided herein
is a material and continuing obligation of Landlord, and its failure at any time to carry out this
obligation during the Lease Term constitutes a material default by Landlord hereunder.
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12. Events of Default by Tenant. The following events are hereby defined as "Events of
Default" by Tenant:
L Failure to Pay. Failure of Tenant to pay any Rent 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 or other payment of money is not paid to Landlord on the date
the same becomes due and payable, Landlord shall give Tenant written notice and a 45 -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 45 day period, then Landlord will be entitled to proceed to
exercise any and all remedies provided herein for an Event of Default, subject to the provisions of
Paragraph 11 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.
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 60 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 60 days and Tenant within such 60 -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 Parking Structure after the Commencement of
Construction, then and in such event the additional time within which to cure such abandonment shall
not exceed 60 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 nonmonetary covenants,
conditions and agreements of this Lease shall not be deemed an Event of Default.
3. Bankruptcy. Etc.
12.3.1. Bankruptcy Filing. If an order of relief shall be entered upon .
any petition filed by or against Tenant, as debtor, seeking relief (or instituting a'case) under Chapters
7, 9, 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et. seq.) or any successor thereto
provided that Tenant is given 90 days after filing to discharge an involuntary bankruptcy action and
is unable to do so within the time allowed, provided that the foregoing shall not be an Event of
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Default hereunder so long as the covenants and obligations on the part of Tenant to be performed
hereunder are being performed by Tenant or someone claiming under Tenant.
12.3.2. Lew or Attachment. If the Project is levied upon or attached
by process of law, and such levy or attachment is not discharged within 90 days from such levy or
attachment; provided that the foregoing shall not be an Event of Default hereunder so long as the
covenants and obligations on the part of Tenant to be performed hereunder are being performed by
Tenant or someone claiming under Tenant.
12.3.3. Receiver, Etc. If a receiver or similar type of appointment or
court appointee or nominee of any name or character is made for Tenant or its property, and such
receiver or appointee or nominee is not discharged within 90 days of such appointment, provided that
the foregoing shall not be an Event of Default hereunder so long as the covenants and obligations on
the part of Tenant to be performed hereunder are being performed by Tenant or someone claiming
under Tenant.
4. Remedies for Default by Tenant. If any of the Events of Default by Tenant
shall occur and subject to Subparagraph 12.5 and 12.6, Landlord may, of 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, except as otherwise provided in Paragraph l l'
hereof, 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
surrenderi to Landlord the Parking Structure. Upon the termination of this Lease, as provided in this
Subparagraph 12.4 and subject to the provisions of Paragraph l 1 hereof, all rights and interest of
Tenant in and to the Parking Structure hereunder shall cease and terminate, and Landlord may, in
addition to anyother rights and remedies it may have, retain all sums paid to it by Tenant under this
Lease and /or exercise any and all rights, whether in law or in equity, that Landlord has against
Tenant
5. Events of Default by Landlord. The following events are hereby defined as
"Events of Default" by Landlord:
12.5.1. Failure to Pay. Failure of Landlord to pay any payments of money due
Tenant or under the Landlord Obligations, or to budget as security for the payment thereof as
provided in Paragraph 11, or as otherwise herein provided or required when due shall constitute a
monetary default of Landlord hereunder. In the event that any payment of money is not paid as
required on the date the same becomes due and payable, Tenant shall give Landlord written notice
and a 45 day period from receipt of such notice to pay same. If Landlord fails to pay the amount as
required, together with all interest due thereon within such 45 day period, then Tenant will be entitled
to proceed to exercise any and all remedies provided herein for an Event of Default. Landlord
covenants and agrees to pay to Tenant interest on the amount thereof from the date such payment or
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installment became due and payable to the date of payment thereof, at the Default Rate, or in the case
of failure to pay monies due under the Landlord Finance Obligation, to pay interest and penalties as
provided by the Lender. Until Tenant has provided Landlord with written notice pursuant to this
subparagraph 12.5 and the time period for cure set forth in this Lease has elapsed without such cure
having been effected, the failure of Landlord to perform or comply with the monetary covenants of
this Lease shall not be deemed an Event of Default, except for payment of the Landlord Finance
Obligation, which must be paid as set forth by the Lender.
12.5.2. 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 60
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 constitute an Event of Default; provided, however, if such default cannot with
reasonable diligence be cured within 60 days and Landlord within said 60 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 12.5 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.
6. 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. In addition,
while their exists an uncured Event of Default by Landlord, the Landlord may not institute any legal
proceedings against Tenant or avail itself of any other remedy provided for in this Lease and Tenant
may withhold any payments due from Tenant to Landlord until such time as the Event of Default is
cured
13. Condemnation.
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 delegatees, 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 Parking Structure plus an amount equal to
the value of Tenant's interest in the unexpired term of the leasehold estate created pursuant to this
Lease, but 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 Taking 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
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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
up to the date of such Taking. Tenant shall keep, observe and perform all the terms of this Lease up
to the date of such Taking.
2. Proceeds of Taking. In the event, following any Taking of the entire Parking
Structure, this Lease is terminated, or in the event, following any Taking of less than the whole of the
Parking Structure, this Lease is terminated as provided for in Paragraph 13.3 herein, the proceeds of
any such Taking (whole or partial) shall be distributed as described in Paragraph 13.1. If the values
of the respective interests of Landlord and Tenant shall be determined according to the foregoing
provisions of this Paragraph 13 in the proceeding pursuant to which the Parking Structure shall have
been taken, the values so determined shall be conclusive upon Landlord and Tenant. If such values
shall not have been separately determined in such proceeding, such values shall be fixedby agreement
between Landlord and Tenant, or if they are unable to agree, by an apportionment hearing within the
condemnation proceeding so that the allocation between the parties is fair and equitable.
3. Partial Taking; Termination of Lease. If, in the event of a Taking of less than
the entire Parking Structure, the remaining portion of the Parking Structure not so taken cannot be
adequately restored, repaired or reconstructed so as to constitute a complete architectural unit of
substantially the same usefulness, design, construction, and commercial feasibility, as immediately
before such Taking, then Tenant shall have the right, to be exercised by written notice to Landlord
within one hundred twenty (120) days after the date of the Taking, to terminate this Lease on a date
to be specified in said notice, which date shall not be earlier than the date of such Taking, in which
case Tenant shall pay and shall satisfy all Rents, and other payments due and accrued hereunder up
to such date of such termination and shall perform all of the obligations of Tenant hereunder to such
date and thereupon this Lease shall cease and terminate, in which event the Tenant's interest under
this Lease in the remainder of the Parking Structure not taken shall be sold in accordance with
applicable law and the proceeds of the sale shall be combined with the award given for the partial
Taking, with the entire amount then being distributed as if a total Taking had occurred. Landlord shall
have the option' to purchase Tenant's interest under this Lease in the remainder of the Parking
Structure at its fair market value for a period of sixty (60) days after the determination of fair market
value, which value shall be determined within one hundred and fifty (150) days from the date the
Lease was terminated. The fair market value specified in the preceding sentence shall be limited to
the fair market value of the Parking Structure and the value of Tenant's interest in the unexpired term
of the leasehold estate created pursuant to this Lease only and in no event shall such value include
any remaining', ownership interest in the Land. If Landlord fails to purchase, the remainder maybe
sold.
4. Partial Taking; Continuation of Lease. If the Lease is not terminated as herein
above provided, then this Lease shall terminate as to the portion of the Parking Structure taken in such
condemnation proceedings and, as to that portion of the Parking Structure not taken Tenant shall
proceed at its own cost and expense either to make an adequate restoration, repair or reconstruction
of the Parking Structure not taken. In such event, Tenant's share of the award, as determined in
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accordance with Paragraph 13.1 herein, shall be payable to Tenant's Leasehold Mortgagee for
application by said Leasehold Mortgagee to Tenant's reconstruction, repair or rebuilding. If the part
of the award so paid to Tenant is insufficient to pay for such restoration, repair or reconstruction,
Tenant shall pay the remaining cost thereof, and shall fully pay for all such restoration, repair and
reconstruct ion, and complete the same free from mechanics' or materialmen's liens and shall at all
times save Landlord free and harmless from any and all such liens.
5. Temporga Taking. If the whole or any part of the Parking Structure or of
Tenant's interest under this Lease be taken or condemned by any competent authority for its or their
temporary use or occupancy not exceeding one year, this Lease shall not terminate by reason thereof
and Tenant shall continue to pay, in the manner and at the times herein specified, the full amounts
of the rents, revenues and all other charges payable by Tenant hereunder, and, except only to the
extent that Tenant may be prevented from so doing pursuant to the terms of the order of _ the
condemning authority, to perforin and observe all of the other terms, covenants, conditions and all
obligations hereof upon the part of Tenant to be performed and observed, as though such Taking had
not occurred. In the event of any such temporary Taking, Tenant shall be entitled to receive the
entire amount of any award made for such Taking (attributable to the period within the term of the
Lease), whether paid by way of damages, rent or otherwise. Tenant covenants that, upon the
termination of any such period of temporary Taking, prior to the expiration of the term of this Lease,
it will, at its sole cost and expense, restore the Parking Structure, as nearly as may be reasonably
possible, to the condition in which the same was immediately prior to such Taking.
6. Additional Takings. In case of a second, or any additional partial Taking or
Takings from time to time, the provisions hereinabove contained shall' apply to each such partial
Taking. In the event any federal, state, county or municipal sovereign or their proper delegatees with
the power of eminent domain appropriates or condemns all or a portion of the Parking Structure, the
award shall be divided in accordance with the provisions of Paragraph 13,.1. In that event, in
accordance with the provisions hereof, Tenant shall restore, repair, or reconstruct any portion of the
Parking Structure not taken; provided that if the award so paid to Tenant shall be insufficient to fully
pay for such restoration, repair or reconstruction, Tenant shall have the option of-
13.6.1. Making Repairs. Repairing or reconstructing the remaining
portion of the Parking Structure at its expense, in which event the provisions of Subparagraph 13.4
herein shall control, or
13.6.2. Terminating Lease. Terminating the Lease in which event the
provisions of Paragraph 13.3 herein shall control.
7. Inverse Condemnation or other Damages. In the event of damage to the value
of the Parking Structure by reason of change of grade, access rights, street alignments or any other
governmental or quasi- governmental act which constitutes awinverse condemnation of any portion
of the Parking Structure creating a right to full compensation therefor, then Landlord and Tenant shall
30
each be entitled to claim and receive from the net payment or award made on account thereof, the
compensation for their respective estates and interests as set forth in Paragraph 13.1
S. Involuntary Conversion. In the event any Taking or other like proceeding or
threat or imminence thereof shall occur as provided for hereinabove or otherwise, Landlord and
Tenant agree to cooperate with each other (especially in the event of a Taking under Paragraph 13.7)
in order to provide proper evidence of communication of the proceeding or threat or imminence
thereof (including evidence of like Takings under Paragraph 13.7), to the Internal Revenue Service
for purposes of determining whether property has been voluntarily converted within the meaning of
the Internal Revenue Code.
9. 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.
1. Use. Tenant shall use the Parking Structure for general office use, retail use
and as a rental parking facility only. Tenant shall not use or permit the use of the Parking Structure
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 Parking Structure or any other area outside the
Project for the solicitation of business to the extent permitted by applicable municipal, county, state
or federal codes and regulations, and shall be permitted to use any sound broadcasting or amplifying
device which can be heard outside of the Project to the extent permitted by applicable municipal,
county, state or federal codes and regulations
2. Operating Standards. Tenant shall (i) maintain the Parking Structure in a clean,
orderly and sanitary condition; (ii) not permit undue accumulation of garbage, trash, rubbish or other
refuse in the Parking Structure; ( iii) keep such refuse in proper containers inside the Parking Structure
until normal pickup; and (iv) maintain and repair the Parking Structure and make all necessary repairs
thereto.
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.
4. Applicable Law. At all times, Tenant shall fully and promptly comply with
all laws, local ordinances, orders and regulations of any lawful authority having jurisdiction over the
Parking Structure, including without limitation, those relating to the environment, cleanliness, safety,
occupation, and use of the 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.
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.,7'
5. Environmental. Tenant shall not cause or permit any Hazardous Material to
be brought upon, kept or used in or about the Parking Structure by Tenant, its 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.
15. Renair and Maintenance.
L Landlord's Responsibility. During the Lease Term, Landlord shall have no
responsibility to maintain the Parking Structure, except for the repair, maintenance and replacement
of the Landlord Portion and the Landlord's parking spaces and meters located on the Second Level
Parking Deck and ordinary municipal services and repairs provided to other commercial buildings
in the City of South Miami.
2. Tenant's Responsibilities. During the Lease Term and with the exception of
the Landlord parking spaces located on the Second Level Parking Deck, Tenant shall repair and
maintain the Parking Structure.
16. Loss of Property. Landlord shall not be liable for any loss of any property of Tenant
from the Parking Structure or for any damages to any property of Tenant, unless due to the wilful
misconduct or gross negligence of Landlord or any of its employees, agents, or contractors.
17. Renovation.'
L Tenant's Rights. Tenant shall have the right, with Landlord's prior written
approval, at anytime and from time to time during the term of this Lease or any renewal thereof, at
its sole cost and expense, to modify, remodel, expand, rebuild, alter and /or reconstruct the Parking
Structure and to raze the Parking Structure provided any such razing shall be preliminary to and in
connection with the rebuilding of a new Parking Structure provided further that:
17.1.1. Submission of Plans and Specifications. The method, schedule, plans
and specifications for such razing and rebuilding of a new Parking Structure or Parking Structures
are submitted to Landlord for its approval at least sixty (60) days prior to commencement; and
17.1.2: Tenant to Obtain Approvals and Permits Tenant obtains all approvals,
Permits and authorizations required under applicable ordinances and laws. Landlord agrees that its
approval of the method, schedules, plans and specifications will not be arbitrarily or unreasonably
withheld, conditioned or delayed. Landlord accepts no liability and waives no rights by reason of
its approval of the method, schedule, plans and specifications for any such rebuilding of the Parking
Structure. None of the foregoing_ provisions is intended to subject to Landlord's approval (i) any
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modifications, construction, replacements, or repair in the nature of "tenant work" (including, without
limitation, interior improvements to space occupied or to be occupied by Subtenants) as such term
is customarily used, (ii) emergency repairs or (iii) any normal and periodic maintenance, operation,
and repair of the Parking Structure.
2. Landlord's Cooperation. Landlord hereby agrees, within thirty(30) days after
receipt of written notice from Tenant, and, subject to any limitations of its authority under Florida
Statutes, the Code and general law and subject to Paragraph 17.1 and other provisions of this Lease,
that the Landlord will issue to the Tenant a written determination either consenting to or rejecting
Tenant's renovation proposal. Upon receipt of Landlord's consent, Landlord shall execute' and
deliver to Tenant any and all suitable applications or other authorizations required by any
governmental or other body claiming jurisdiction in connection with any work which Tenant may do
in accordance with this Lease. Any charges or expenses incurred pursuant to this Paragraph 17.2 for
such applications for Permits, licenses, easements or other authorizations shall be borne solely by
Tenant:
18 Access to Premises. Upon providing Tenant with at least one business day's prior
written notice, Landlord, its agents and representatives, may, subject to compliance with Tenant's
security procedures, enter the Parking Structure for the purposes of physical inspection and to exhibit
the Parking Structure to prospective purchasers. Without such prior notice, Landlord, its agents and
representatives, may enter the Parking Structure for emergency purposes only. This Paragraph 18
applies only to Landlord in its proprietary capacity as landlord under this Lease and shall in no way
apply to the police power of the City of South Miami and the provisions of normal municipal services
by the City of South Miami, including, but not limited to, the collection of parking revenues and
issuance of parking fines on the Second Level Parking Deck.
19. Operation and Management of Improvements.
1. Control of Parking Structure. Landlord hereby agrees that, subject to any
limitations imposed by the terms of this Lease, Tenant shall be free to perform and exercise its rights
under this Lease and shall have exclusive control and authority to direct, operate, lease and manage
the Parking Structure, provided, however, that Landlord shall' retain the right to disapprove and
require the cessation of any conduct or activity that is illegal, immoral, or constitutes a public
nuisance. Tenant covenants and agrees to continuously operate the Parking Structure consistent with
prudent business practices to ensure that the Gross Income generated by the Parking Structure is
comparable to that generated in similar facilities in similar locations and to provide security in a
manner comparable to similar facilities in similar locations. Subject to applicable codes, ordinances
and regulations, Tenant shall operate the Parking Structure so as to provide public access to the
parking spaces within the Parking Structure at all times. Notwithstanding the foregoing sentence,
Tenant's operation of the Parking Structure shall at all times be subject to contractual obligations of
Tenant to the Subtenants and to all appropriate security, repair, maintenance and capital improvement
requirements of Tenant.
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2. 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 and the
surrounding area. They further agree that, except for those structures reasonably necessary for
security and safety purposes, no fence, or any other structure of any kind (except as may be
specifically permitted or maintained under the provisions of this Lease, indicated on approved Plans
or otherwise mutually agreed upon in writing) shall be placed, kept, permitted or maintained in such
a fashion as to materially or adversely interfere with pedestrian or vehicular traffic to and from the
Parking Structure. The foregoing shall not prohibit Tenant from closing the Parking Structure and
denying access to the public at such times and in such manner as deemed necessary by Tenant during
the development or construction of any portion of the Project, the repair and maintenance of the
Parking Structure or in the operation of the Parking Structure. The Tenant will not engage in any
activity that hampers the City's ability to provide municipal services.
3. Rights to Erect Signs; Revenue Therefrom.
19.3.1. Procedure for Signs. Landlord hereby agrees that Tenant, to the extent
permitted by law shall have the exclusive right during the term of the Lease, to place, erect, maintain
and operate, or cause, allow and control the placement, erection, maintenance and operation of any
signs or advertisements in accordance with Paragraph 19.3.2 below, in or on the Project. Tenant
shall be responsible for obtaining any and all Permits and licenses which maybe required from time
to time by any governmental authority for such signs and advertisements and Landlord agrees to
execute any consents necessary or required by any governmental authority as part of Tenant's
application for such Permits or licenses.
19.3.2. Allowable Signs. All types of signs and advertising which are in
compliance with all applicable laws and ordinances shall be allowed.
19.3.3. Removal of Signs. Tenant shall have the right to remove any signs
which, from time to time, may have become obsolete, unfit for use or which are no longer useful,
necessary or profitable in the conduct of Tenant's business, or in the occupancy and enjoyment of the
Project by Tenant, or any Subtenant.
19.3.4. Definition of Signs. As used in this Lease, "sign(s)" shall be deemed
to include any display of characters, letters, illustrations, logos or any ornamentation designed or used
as an advertisement or to indicate direction, irrespective of whether the same be temporary or
permanent, electrical, illuminated, stationary or otherwise.
19.3.5. Revenue from Signs. Tenant shall be entitled to rent or collect a fee
for the display or erection of signs, advertisements, and the use of space for display or erection of
signs.
4. Landlord's Signs Upon the Project. Landlord shall be allowed to place within
the Project informational graphics at locations and in sizes mutually agreed upon by Landlord and
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Tenant. Landlord shall be responsible for the installation, maintenance, upkeep and ultimate removal
and disposal of such graphics. Landlord shall also be responsible for the installation of way finding
signage in the vicinity of the Project.
5. Night and Weekend Parking; for Special Events. So long as the City of South
Miami is the Landlord and by providing ten days prior written notice, the Landlord may request that
Tenant provide public parking in the Parking Structure in excess of that provided by the Second Level
Parking Deck. Tenant shall provide such additional parking by using all or a portion of the parking
spaces of the Parking Structure (other than those parking spaces on the Second Level Parking Deck)
for public parking. Tenant is obligated to provide such additional public parking only if the same is
allowed by all applicable codes, ordinances and laws, the providing of additional parking spaces by
Tenant does not conflict with Tenant's existing parking obligations to Subtenants and others, the
Tenant would not otherwise make those parking spaces available to the public at such times as
requested by Landlord, and the Landlord reimburses Tenant, on a monthly basis, for any operating
deficit suffered by Tenant due to the costs incurred by Tenant to provide such additional parking,
including, but not limited to, security and insurance costs. Tenant, in its sole discretion, shall
determine the parking policies to be applied to any such additional night and weekend parking and
Landlord, by prior written notice may set the parking fees for any such additional night and weekend
parking.
6. 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 Parking Structure during the term of this Lease. This
Subparagraph 19.6 shall not apply to any loss, damages or charges caused by the indemnified party,
its employees or agents. This Subparagraph 19.6 shall survive the termination of the Lease.
20. Surrender of Parking Structure. Upon termination of this Lease, Tenant shall deliver
to Landlord a quit -claim deed transferring all of Tenant's rights, title and interest to the Project in
form satisfactory to the City of South Miami. The Parking Structure shall be free and clear of all
liens, restrictions and encumbrances. Tenant shall remove its personal property and surrender
possession of the Parking Structure in its "as is" condition. Tenant shall have no responsibility for
making any extraordinary repairs or replacements, or establishing any reserves therefor, nor shall
Tenant be required to make any representations or warranties concerning the condition of the Parking
Structure upon surrender. Tenant, however, does have the obligation to maintain the Parking
Structure in such a way as is commercially reasonable when 'taking into account maintenance
programs at similar parking garages in Miami -Dade County.
21. Destruction.
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1. Tenant's Duty to Restore. If, at any time during the term of this Lease, the
Parking Structure or any part thereof shall be damaged or destroyed by fire or other casualty covered
within the insurance designation of fire and extended coverage as same is customarily written in the
State of Florida, Tenant, at sole cost and expense, shall proceed to repair, alter, restore, replace or
rebuild, as expeditiously as possible after receipt of insurance proceeds, the same as nearly as
reasonably possible to its value, condition and character which existed immediately prior to such
damage or destruction, subject to such changes or alterations as Tenant may elect to make in
conformity with the provisions of this Lease and modern construction techniques and methods.
Provided Tenant otherwise complies with the terms of this Lease and obtains Landlord's approval,
it may construct buildings and improvements which are larger, different in use and represent, in
Tenant's' opinion, the highest and best use of the Land to the extent allowed by applicable Law and
Ordinance. Such repairs, alterations, restoration, replacements or rebuilding, including such changes
and alterations as aforementioned and including temporary repairs for the protection of other property
pending the completion of any thereof, are sometimes referred to in this Paragraph 21 as the "Work ".
2.' Interrelationship of Lease Paragraphs. Except as otherwise provided in this
Paragraph 21 the conditions under which any Work is to be performed and the method of proceeding
with and performing the same shall be governed by all the provisions of Paragraph 8 and Paragraph
9.
3. Insurance Loss Payees. All policies of insurance required to be maintained by
Tenant in accordance with Paragraph 23 shall provide that the loss thereunder shall be payable to
Tenant and to any Leasehold Mortgagee under a standard mortgage endorsement. No Leasehold
Mortgagee shall be permitted to unreasonably withhold its consent to a release of the net proceeds
of any fire or other casualty insurance paid to the Tenant or any Leasehold Mortgagee for any loss
which shall occur during the term of this Lease and for such repairing or rebuilding same, provided
Tenant complies with reasonable requirements of the Leasehold Mortgagee preliminary to the release
of said funds: proceeds remaining at completion shall be paid to and belong to Tenant.
4. Reconstruction Delay. If more than fifty percent (50 %), of the Parking
Structure has been destroyed, Tenant, agrees to commence reconstruction as expeditiously as possible
taking into account all conditions which apply to Tenant during such period.
5. Termination by Destruction. Notwithstanding anything to the contrary
contained herein, in the event that the Parking Structure or any part thereof shall be damaged or
destroyed by fire or other casualty during the last five (5) years of either the initial term of this Lease
or any renewal term and the estimated cost for repair and restoration exceeds Five Hundred Thousand
Dollars ($500,000.00), then Tenant shall have the right to terminate this Lease and its obligation
hereunder by giving written notice to Landlord to such effect within one hundred twenty (1`20) days
after such dam!
amage or destruction. In such an event this Lease shall terminate on the date specified
in such notice (which shall not be earlier than thirty (30) days following the receipt of such notice or
later than the expiration of the then term of this Lease) and the obligations of Tenant under this Lease
shall be prorated to the date of termination. Tenant shall have the obligation to raze the Parking
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Structure and return the Land to a municipal parking lot (with asphalt and striping, but without
parking meters, lighting or any other improvements). - In such an event all insurance proceeds shall
belong to the Leasehold Mortgagee to the extent there remains unpaid principal or interest due under
any Leasehold Mortgage. If insurance proceeds exist in excess of the amount to be paid to any
Leasehold Mortgagee the proceeds shall be used to raze the Parking Structure and return the Land to
a clear and clean condition. Any remaining insurance proceeds shall belong to Tenant.
22. Sale of Leasehold, Sublettiu, Landlord's Assignment.
22.1. Right to Transfer Leasehold. During the term of this Lease, Tenant or any
Successor Tenant may sell, assign, or otherwise transfer this Lease to such other persons, firms,
corporations, partnerships unincorporated associations, joint ventures, estates, trusts, any 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. (a) The City shall
consider Tenant's request to transfer, sell or assign its leasehold interest and shall not unreasonably
withhold its consent provided that the proposed transfer satisfies the following minimum standards:
(i) The City Commission has determined in its reasonable discretion, after reviewing the current
financial statements provided by the Successor Tenant, that the Successor Tenant has the financial
strength, experience and capability to assume the obligations of the Lease Agreement and maintain
the levetof service required of Tenant under this Lease; (ii) the City Commission is satisfied after its
due diligence that the controlling principals of the Successor Tenant have not been convicted of any
felony related to financial fraud; (iii) there is no litigation, arbitration, governmental claim,
investigation or proceeding pending or threatened against the Successor Tenant which would impede
its ability to perform under the Lease Agreement (this! requirement may be satisfied by a disclosure
letter from the Successor Tenant's legal counsel); (iv) the Successor Tenant has not received a notice
of violation of environmental laws and failed to settle or remedyanysuch violations (this requirement
may be satisfied by a disclosure letter from the Successor Tenant's legal counsel,); (v) the Successor
Tenant has not been charged with violating applicable laws concern: ing employment and employment
practices, terms and conditions of employment, wages and hours, occupational, safety and health,
including laws concerning unfair labor practices within the meaning of Section 8 of the National
Labor Relations Act and the employment of non - residence under the Immigration Reform and
Control Act of 1986 and failing to settle or remedy the same (this requirement may be satisfied :by
a disclosure letter from th '
shall be made expressly,.;
shall be delivered to Land
shall not be effective to bi
designate the name and a
which all notices required
successor transferees) sha
the right to mortgage, enc
obligations of Tenantin
provisions of this Paragra
Successor Tenant s legal counsel); (b) such a sale, assignment or transfer
bject to the terms, covenants, and conditions of this Lease;' and (c) there
)rd a duly executed and recordable copy of such transfer, and such transfer
d Landlord until notice thereof is given to Landlord, and such notice shall
dress of the Successor Tenant and the post office address of the place to
iy this Lease shall be sent. Such Successor Tenant (and all succeeding and
succeed to all rights and obligations of Tenant under this Lease, including
nber and otherwise assign and sublease subject, however, to all duties and
nd pertaining to the then unexpired term of this Lease. Subject to the
h, upon such trans' fer by Tenant, or by a Successor Tenant in accordance
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with the requirements of this Paragraph 22, Tenant (and /or its successive Tenant or Tenants) as
transferor in such a transfer shall be released and discharged from all of its duties and obligations
hereunder which pertain to the then unexpired term of this Lease, including the payment of
Percentage Rents which are not then due and payable; it being the intention of this Lease that Tenant
then in possession shall be liable for the payment of the Percentage Rents becoming due and payable
during the term of its possession of the Parking Structure, and that there shall be no obligation on the
part of Tenant (or any transferee) for the payment of any such Percentage Rents, which shall become
due and payable subsequent to the termination of their possession of the Parking Structure under the
terms of this Lease. Any act required to be performed by Tenant pursuant to the terms of this Lease
may be performed by Successor Tenant or Sublessee of Tenant and the performance of such act shall
be deemed to be performed by Tenant and shall be acceptable as Tenant's act by Landlord, provided
such act is otherwise performed in accordance with the terms of this Lease.
22.1.1. Rights to Sublease. Tenant shall have the right to sublease all or any
portion of the retail, office and parking space components of the Parking Structure without any
approval of or consent from Landlord provided Tenant remains liable under the Lease for the portion
of the Parking Structure being subleased. Landlord agrees that any rights of Landlord hereunder to
reenter and take possession of the Parking Structure shall be subordinate to the rights of any such
Subtenant to continue peaceably in possession under any and all Subleases, provided that such
Subtenant be in conformity with the terms and conditions of its lease. Landlord further agrees that
upon the receipt of any request from Tenant, Subtenant, or Leasehold or Subleasehold Mortgagee(s),
it will grant such assurances to such Subtenant as may be requested of their continued right to occupy
a portion of the retail or office component of the Parking Structure pursuant to the terms of their
leases so long as they remain in compliance with the terms of their leases, and provided further that
any such leases do not extend beyond the expiration of the term of this Lease.
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 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.
22.3. Compliance with City Charter. For so long as the City of South Miami shall
be the Landlord under this Lease, any sale. of Tenant's leasehold interest hereunder, subletting or
assignment of Tenant's leasehold interest hereunder with respect to the Parking Structure shall be in
r 7-- "--. �
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.
22.4. Right of First Refusal. Upon Landlord's exercise of its right to assign the Lease
to a third party as provided in Paragraph 22.2, Landlord 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 Land ( "Sale Notice "). Tenant shall have fifteen business days in which to deliver
written notice ( "Acceptance Notice ") to Landlord of Tenant's intent to purchase the Landlord's
interest in the Lease and the Land on the same terms and conditions as referenced in the Sale Notice.
If the Tenant delivers the Acceptance Notice to Landlord on a timely basis, Landlord shall convey
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 Tenant's purchase of Landlord's interest in the Lease and Land
shall be within 120 days of Landlord's receipt of the Acceptance Notice. If the Tenant fails to deliver
the Acceptance Notice to Landlord on a timely basis, the Landlord shall be at liberty to sell and
convey the Land as provided in the Sales Notice. In the event Tenant exercises its right to purchase
the Land as provided in this Subparagraph 22.4, Landlord's interest in this Lease shall be assigned
to Tenant as of the closing date of Tenant's purchase of the Land and the parties shall have no further
liabilities or obligations to each other hereunder.
22.5.. Fee Upon Transfer of Leasehold. 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 ") as provided in this Subparagraph 22.5. The Transfer Fee shall equal 2.5%
of the net profit from the transfer of the leasehold by Tenant if the net profit is equal or less than
$1,400,000. If the net profit from the transfer of the leasehold by Tenant exceeds $1,400,000, the
Transfer Fee shall be $35,000 plus 7% of the amount by which the net profit exceeds $1,400,000.
The net profit from the transfer of the leasehold by Tenant shall be determined under generally
accepted accounting principles and shall apply only to monies actually received by Tenant (or
liabilities from which Tenant is actually relieved).
22.6. Mark Richman Purchaser of Leasehold Interest. As of the Effective Date, Mark
Richman is approved as a purchaser of Tenant's leasehold interest in the Project and is deemed to
satisfy all of the criteria listed in Subparagraph 22.1 for approval of a proposed transferee of the
leasehold interest in the Project. At such time in the future as Mark Richman may become a
transferee of Tenant's leasehold interest in the Project, Mark Richman shall be an approved transferee
so long as he continues to satisfy the conditions listed in Subparagraph 22.1 after the Effective Date.
23. Insurance.
I . Acquisition of Insurance Policies. Tenant shall, at its 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
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p ��
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
and may be adjusted if prudent, considering levels of inflation, risk of loss, premium expenses, and
other relevant factors.
2. Types of Required Insurance. 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 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 Paragraph 23.1 above) no less than the following:
Commercial General Liability
One Million Dollars ($1,000,000) each occurrence
23.2.2. Umbrella Liability Insurance. Umbrella liability insurance in
the amount of Three Million Dollars ($3,000,000).
23.2.3. 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 ,vhich Subtenants have reimbursed Tenant, located
on or in, or constituting apart of, the Parking Structure 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, subject in each case to deductibles approved by any
Leasehold Mortgagees of the Parking Structure. Tenant shall not be required to maintain insurance
for either earthquake or war risks; provided, however, if Tenant shall obtain any such coverages, then,
for as long as such insurance is maintained by Tenant, Landlord shall be entitled to the benefits of the
first sentence of Paragraph 23.3 hereof, and Paragraph 23.3.3.
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's general contractor.
23.2.5. Business Interruption. After construction of the Project,
business interruption insurance in an amount not less six months of revenue for the Parking Structure.
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3. Terms of Insurance. The policies required under Paragraph 23.2 shall name
Landlord as additional insured and Tenant shall provide to Landlord certificates of insurance and
copies of policies obtained by Tenant hereunder promptly upon the request of Landlord as and when
received by Tenant. Further, all policies of insurance described in Paragraph 23.2 shall:
23.3.1. Primary - Policies. Be` written as primary policies not
contributing with and not in excess of coverage that Landlord may carry.
23.3.2. Notice of Change or Cancellation. Contain an endorsement
providing that such insurance may not be materially changed or amended with respect to Landlord
except after twenty (20) days prior written notice from insurance company to Landlord, and may not
be canceled with respect to Landlord except after thirty (30) days prior written notice from insurance
company to Landlord.
23.3.3. Landlord Not Responsible for Notice or Premiums. Expressly
provide that Landlord shall not be required to give notice of accidents or claims and that Landlord
shall have no liability for premiums.
23.3.4. Insurance Company R_ ating. Be written by insurance companies
having a Best's rating of "B+" or equivalent, if available, which insurance companies shall otherwise
be reasonably acceptable to Landlord.
23.3.5. Mortizage > Endorsement. Provide a standard mortgage
endorsement as contemplated in Paragraph 21.3.
4. Landlord's Acquisition of Insurance. If Tenant at any time during the Term
fails to procure or maintain insurance required hereunder or pay the premiums therefor, 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.
5. Insurance Money and Other Funds Held in Trust. All insurance money
received by the Tenant shall be held in trust and shall be applied as follows: First, to any Leasehold
Mortgagee as required under the terms of its Mortgage, provided that such Mortgage was of record
and secured a loan made or committed to Tenant in compliance with all of the terms and conditions
of this Lease prior to the occurrence of such loss; second, for the purpose of defraying the cost of
repairing, restoring, replacing, or rebuilding any structure or improvement on or in the Parking
Structure as provided in Paragraph 23.6 hereof, and, third, if the damaged or destroyed structure or
improvement is not repaired, restored, replaced, or rebuilt as hereinafter provided, said funds shall
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be disposed of as provided in Paragraph 23.6. Any of said funds not utilized at the end of the Term
hereof shall be disposed of as set forth in Paragraph 23.6.1.
6. Application of Proceeds of Physical Damage Insurance. In the case of any loss
covered by any insurance policies described in Paragraph 23.2.3. (Physical Property Damage
Insurance), the application of insurance proceeds from damage or loss to property shall be determined
in accordance with Paragraph 21 hereof and, in the event of any such repair, replacement, restoration,
or rebuilding, the Tenant shall apply the proceeds of the insurance collected to the cost of such work
upon completion in form satisfactory to the licensed architect or engineer in charge of the work. Any
amounts payable to Tenant for work or services performed or materials provided as part of any such
repair, replacement, restoration, or rebuilding shall not exceed competitive rates for such services or
materials and Tenant shall, upon request of Landlord, make available to Landlord and its
representatives all books and records of Tenant relating to such work, services, and materials. Upon
completion of such repair, replacement, restoration, or rebuilding in accordance with the provisions
of this Lease, and the full payment therefor (so no liens, encumbrances, or claims with respect thereto
can be asserted on account of such work against the Parking Structure, this Lease, Landlord, or
Tenant other than any Mortgage permitted under the terms hereof), any insurance proceeds received
by the Tenant or Landlord with respect to the damage or destruction involved, and not used, shall be
paid to Tenant.
23.6.1. Distribution of Unutilized Proceeds. Upon the termination of
this Lease, including a termination as a consequence of damage or destruction of the Parking
Structure, such insurance proceeds received and held by the Tenant or Landlord and not used for
repair, replacement, or reconstruction (the "Available Proceeds") shall be disposed of as follows:
(a) First, to the holder of any Leasehold Mortgage pursuant to
Paragraph 11 hereof to the extent of the unpaid balance of the Loan, if there is such an unpaid Loan;
(b) Second, the balance of the Available Proceeds shall be paid to the
Landlord in an amount sufficient to remove any improvements rendered unusable and not repaired
and to return the Land to a municipal parking lot (with asphalt and striping, but without parking
meters, lighting or any other improvements); and
(c) Any remainder shall be paid to Tenant.
7. Insurance Ap rp aiser. The determinations required under this Paragraph 23
shall be made by an independent qualified insurance appraiser selected by the parties, whose decision
shall not be subject to arbitration. If the parties cannot agree on the insurance appraiser within thirty
(30) days after the date of such damage or destruction, then each party shall appoint an insurance
appraiser who shall jointly choose a third insurance appraiser (the "Independent Insurance
Appraiser "). The written decision of the Independent Insurance Appraiser shall be binding on Tenant
and Landlord.
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8. Waiver of Subro ag tion. 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 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 party 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 party.
9. Landlord's Insurance. Landlord shall, at its sole cost and expense, procure and
maintain, or cause to be procured and maintained, during the entire Lease Term the insurance
covering liability for any damage caused by Landlord, or Landlord's agent, in the Project, which
insurance shall be subject to Tenant's review and approval (which approval shall not unreasonably
withheld or delayed). Policy limits shall be reviewed annually and may be adjusted if prudent,
considering levels of inflation, risk of loss, premium expenses, and other relevant factors.. The
policies required under this Subparagraph 23.9 shall name Tenant as additional insured and Landlord
shall provide to Tenant certificates of 'insurance and copies of policies obtained by Landlord
hereunder promptly upon the request of Tenant as and when received by Landlord. Further, all
policies of insurance described in this Subparagraph 23.9 shall (i) contain an endorsement providing
that such insurance may not be materially changed or amended with respect to Tenant except after
twenty (20) days prior written notice from insurance company to Tenant, (ii) may not be canceled
with respect to Tenant except after thirty (30) days prior written notice from insurance company to
Tenant, (iii) expressly provide that Tenant shall not be required to give notice of accidents or claims
and that Tenant shall have no liability for premiums and (iv) be written' by insurance companies
having a Best's rating of "B +" or equivalent, if available, which insurance companies shall otherwise
be reasonably acceptable to Tenant. -
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.
25. Acts of God; Unavoidable Delays.
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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 party 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 hurricane, windstorm,
tornado, lightning, flood, strike, lock -out, civil commotion, war -like operation, 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.
2. Unavoidable Delays. Any delay resulting from Unavoidable Delays shall
extend the time for completion and performance dates under this Lease. Tenant shall not be liable
for loss or damage or deemed to be in default hereof due to any such Unavoidable Delay(s), provided
that such Unavoidable Delay is not caused by the fault or negligence of Tenant.
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 Project 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: Charles Scurr, City Manager
With cop, to
Earl Gallop
City Attorney for the City of South Miami
Nagin Gallop Figueredo
3225 Aviation Avenue, Suite 301
Miami, Florida 33133
I
As to Tenant:
SPG Phase One, Ltd.
7150 S.W. 62nd Avenue
Miami, Florida 33143
Attn: Albert S. Elias, President
With copy to:
Richard J. Razook
Thomson Muraro Razook & Hart, P.A.
One Southeast Third Avenue, Suite 1700
Miami, Florida 33131
Such notice or other communication, together with appropriate copies, maybe 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.
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.
2. Contest by Tenant. Tenant shall have the right, after prior written notice to
Landlord, to contest the validity or application of any 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, fonns or other such documents reasonably necessary for Tenant to contest the validity or
application of any law or ordinance and approved by counsel for Landlord, which approval shall not
be unreasonably withheld or delayed.
31. Representations and Warranties.
1. Landlord's Representations. Landlord hereby represents to Tenant that:
31.1.1. Free of Violations. The Landis free and clear of any violations of laws,
regulations and ordinances.
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., T� --,gNff,7 r
31.1.2. 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 Land in a manner inconsistent with this Lease and no such adverse
effect or change is threatened, pending or imminent.
31.1.3. No Sewer Impairments. There are no administrative or other
proceedings pending, threatened or imminent which would in any way interfere with, preclude or
impair the furnishing of sewer and water treatment services to the Land.
31.1.4. No Moratoria. There are no building, utility, sewer or other moratoria
currently in effect, pending, threatened or imminent, which would adversely affect 'construction of
any improvements or the issuance of any Permits with respect to the Land.
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 the Land to
Tenant free and clear of any and all tenancies and occupancies, subject only to the rights reserved
herein to Landlord.
3. Tenant's Representations and Warranties. Tenant hereby represents and
warrants to Landlord that:
31.3.1. 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.
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33. Airspace Reversion Rights. The Conveyance of the Airspace to Tenant shall be
subject to the Airspace Reversion Rights in favor of MRP. The Conveyance of the Airspace shall be
subject to reversion if, after completion of the New MRP Building as contemplated by Article 13 of
the MRP Agreement, there is a destruction of the Project and neither Tenant nor Landlord elect to
cause the shell of the New MRP Building to be rebuilt in accordance with the terms of this Lease and
the MRP Agreement. In connection therewith, the Tenant and the Landlord shall be provided 180
days after a destruction to proceed to have the New MRP Building reconstructed substantially in
accordance with the Plans (subject to any changes in applicable building codes or other legal
requirements), or else it shall be determined that the Landlord and the Tenant have elected not to
proceed with reconstruction of the New MRP Building. If the Airspace reverts to MRP as provided
in this Paragraph 33, Landlord and Tenant shall execute all documents reasonably necessary to
reconvey the Airspace to MRP. The security interest of any Lender in the Project shall be subject to
the Airspace Reversion Rights in favor of MRP.
34. Rights With Respect to Old MRP Building. It is hereby acknowledged that the Old
MRP Building does not meet current zoning standards in the City of South Miami with respect to
parking requirements and possibly other matters. The, Old MRP Building consists of approximately
8000 square feet and has parking spaces. In connection with the potential that the Old MRP
Building may be demolished pursuant to this Lease and the MRP Agreement and subsequently the
Project may not be completed, or the potential that the Project maybe destroyed and the New MRP
Building not rebuilt, it is hereby confirmed and agreed as follows (the "Reconstruction Rights ")
1. Prior to Construction. In the event the Old MRP Building is demolished and
the Project is not constructed, then MRP shall retain the right to reconstruct a building having the
same square footage, footprint and available parking spaces as the Old MRP Building.
2. Destruction After Construction. In the event the Project is constructed,
thereafter destroyed and the New MRP Building_ is not reconstructed, then the same rights as in
Subparagraph 34.1 above shall apply and MRP shall have the right to re- construct a building as set
forth in Subparagraph 34.1 above.
35. MRP Consideration. The Landlord and the Tenant acknowledge and agree that MRP
would not enter into the MRP Agreement and otherwise convey the Airspace as set forth in the MRP
Agreement, absent the irrevocable consent and agreement of the Landlord to the provisions of
Paragraph 33 and 34 of this Lease with respect to the Airspace Reversion Rights and the
Reconstruction Rights.
36. General Provisions.
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.
2. No Waiver. The failure of aparty 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
-47-
party's right to assert and enforce its rights regarding any such term, interest, right, power, or option
in any future instance.
3. Entire Agreement. This Lease, including all Exhibits referenced herein and
to the extent incorporated by reference the MRP Agreement, represents 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.
4. Successors and Assigns. This Lease shall be binding upon the successors,
assigns, and representatives of the parties hereto.
5. Modification and Rescission. This Lease maybe 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.
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.
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.
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."
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. The Tenant shall take affirmative action
to ensure that applicants are employed and that employees are treated during their employment,
without regard to their race, religion, color, sex, age, ancestry, marital status, handicap, place of birth
or national origin. Such actions shall include, but not be limited to, the following: employment;
upgrading; transferor demotion; recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation and selection for training, including apprenticeship.
10. 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,
-48-
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 suitor arbitration. Attorneys' fees payable under this Subparagraph 36.10 shall not exceed
25% of the amount of damages awarded to the prevailing party and no party shall be entitled to pre-
judgment interest.
33.11. Reasonableness ofApprovals. Pursuant to this Lease Agreement, the Landlord
and the 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 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.
33.12. 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.
33.13. Memorandum of Lease. The Landlord and Tenant shall record either this.
Lease or a memorandum of lease in the Public Records of Miami -Dade County, Florida at such time
as requested by and in a form acceptable to the Construction Lender.
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 January _, 2001 ( "Effective
Date").
WITNESSED: TENANT:
SPG Phase One,_ Ltd., a Florida limited
partnership
By The Initial Phase, Inc., its sole general
partner
By:
Albert S. Elias, President
Date:
LANDLORD:
City of South Miami, a municipality of Miami-
Dade County, Florida
-49-
By:
Charles Scurr, City Manager
Date:
SWORN TO AND SUBSCRIBED before me this day of January, 2001, by Albert S.
Elias, as president of The Initial Phase, 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]
I
SWORN TO AND SUBSCRIBED before me this day of January, 2001, by Charles
Scurf, 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]
50
>^ 7 ,-1., 777111!7 ;T tt° :,� W:
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,
I
Florida.
l
i
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EXHIBIT D