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HomeMy WebLinkAboutReso 2019-2940 RESOLUTION NO. 2019 - 2e A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING A FIRST AMENDMENT TO THE TRIPLE NET LEASEBACK AGREEMENT WITH CORNER HOUSE, LLC FOR THE PROPERTY LOCATED AT 15800 COLLINS AVENUE,ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on March 17th, 2016, via Resolution No. 2016-2534 the City entered into a Triple Net Leaseback with Corner House,LLC("Tenant")for the property located at 15800 Collins Avenue, Sunny Isles Beach, FL; and WHEREAS, the City and the Tenant agree to extend the termination date to October 16, 2020, and include a renewal option for an additional six (6) months; and WHEREAS,the City Commission wishes to approve the First Amendment to the Triple Net Leaseback Agreement the Corner House, LLC for the property located at 15800 Collins Avenue attached Exhibit "A. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of Triple Net Leaseback Agreement. The City Commission hereby approves the First Amendment to the Triple Net Leaseback Agreement between the City and Corner House, LLC, attached hereto as Exhibit "A". Section 2. Authorization of the Mayor.The Mayor is hereby authorized to execute the Triple Net Leaseback Agreement between the City and Corner House, LLC. Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate this Resolution. Section 4. Effective Date. This Resolution will become effective upon adoption. PASSED AND ADOPTED this 16th •: of ay 2019. Georg: . Scholl, Mayor R2019 First Amend Triple Net Leaseback with Corner House LLC.doc Page 1 of 2 • \. C`ATTEST:' ` e I r' ' / A ( P' `;,",Mauricio BIetanc ,,,`,..CMC, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: ZrttriA., / / /! Edward A. Dion, City Attorney Moved by: C.1014 S+'14o.1En-- 6101-4144n1 Seconded by: aV ,W4tc(4 - I4M4 • Vote: Mayor Scholl ii_(Yes) (No) Vice Mayor Svechin `I (Yes) (No) Commissioner Goldman —(Yes) (No) Commissioner Lama (Yes) (No) Commissioner Viscarra (Yes) (No) R2019 First Amend Triple Net Leaseback with Corner House LLC.doc Page 2 of 2 AMENDMENT TO TRIPLE NET LEASEBACK AGREEMENT THIS AMENDMENT TO TRIPLE NET LEASEBACK AGREEMENT (this • "Amendment")dated effective as of the 714 day of 0 2019(the"Effective Date")by and between THE CITY OF SUNNY ISLES BEACH, FLORIDA, a body corporate and politic organized under the laws of the State of Florida (hereinafter"Landlord")and CORNER HOUSE, LLC, a Florida limited liability company ("Tenant"). RECITALS WHEREAS, Landlord and Tenant executed a Triple Net Leaseback Agreement on February 23,2016 (the"Lease") for the property identified as 15800 Collins Avenue, Sunny Isles Beach, Florida 33160; WHEREAS, the Landlord and Tenant wish to amend the Lease upon certain terms and conditions provided herein; NOW, THEREFORE, for$10.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: I` 1. Recitals.The Recitals to this Amendment are true and correct and are hereby incorporated herein. i 2. Defined Terms. All capitalized terms used in this Amendment, unless otherwise defined herein, shall have the meanings set forth in the Lease Agreement. 3. Termination Date.The Parties agree that the expiration date of the Lease shall be extended 1 to October 16,2020(the "Termination Date"). 4. Renewal Option.Notwithstanding anything contained in the Lease,Tenant shall have the right to extend the term for an additional six (6) months (the "Option Period") from the Termination Date. In order to exercise the option herein granted, Tenant must give written notice to Landlord of Tenant's intention to exercise the option not less than thirty(30) days prior to the Termination Date. All of the terms, covenants and conditions set forth in the Lease shall apply during the Option Period_ 5. Termination Option.Notwithstanding anything contained in the Lease, Tenant shall have the right to terminate the Lease at any time upon thirty (30)days written notice to Landlord. 6. Multiple Originals. This Amendment is fully executed and delivered by the parties in triplicate identical original instruments, any of which may be introduced into evidence in any proceeding as conclusive proof of the terms thereof. Landlord acknowledges receipt of two, and Tenant acknowledges receipt of one of such fully-executed original instruments. 7. Authority of Tenant. Tenant and the signatory executing this Amendment on its behalf represent and warrant that this Amendment has been duly authorized, executed, and delivered by and on behalf of Tenant and constitutes the valid and binding agreement of Tenant in accordance with the terms hereof. 8. Ratification; Coordination. Except as specifically amended herein, all the terms, covenants, conditions and provisions set forth in the Lease, as amended, are hereby ratified and reaffirmed in all respects. Tenant has no demands, claims (matured or unmatured), losses, rights of set off or deduction asserted or assertible against Landlord in any manner relating to the Lease, as amended,arising in connection with the,Property.In the event of any conflict between the terms • and provisions of the Lease, as amended, and the terms and provisions of this Amendment, this Amendment shall govern and control. IN WITNESS WHEREOF, the parties have executed this Amendment as indicated below. Signed,sealed and delivered in the presence of: "TENANT" Wimes � Corner .b e LLC, �lori3� Sign: i • l limiter i. ility co Prin lame: i P.4-1.?tClitP 4 • B Witne : Name: Manue CRS .15t`'.: Sign-. L., A., licd Its: Manager Prin Nai: ;, s, ir e'a "LANDLORD" City of Sunny Isles Beach • Witness##Ili AtiOr 101/ s Sign: /� By: doe ✓ . ,� Print Name A • `,,: Na e: U , WI kintill ' Its:Cr1 t MACiER- Witn1i .1 Print' e: ,L • tv at/Fa- TRIPLE NET LEASEBACK AGREEMENT ''a��• �' THIS TRIPLE NET LEASEBACK AGREEMENT is entered into and effective as of this Z3(day of 2016, by and between THE CITY OF SUNNY ISLES BEACI.1, FLORIDA, a hod)/corporate and politic organized under the laws of the State of Florida, hereinafter referred to as the "LANDLORD", and CORNER HOUSE, LLC, hereinafter referred to as the "TENANT". WHEREAS, the Landlord is the owner of that certain parcel of property located at 15800 Collins Avenue, Sunny Isles Beach, FL, and of which the legal description is set forth in Exhibit"A"attached hereto and made a part hereof("Realty")in fee simple,together with the following property and rights (the Realty and such property and rights are referred to. herein collectively as the"Property"); and - WHEREAS, the Tenant desires to rent and lease the Property from the Landlord,and he Landlord has agreed to lease the same to the Tenant upon the following terms and conditions. • NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, and in consideration of the rents and covenants of the Tenant to be paid and kept as herein contained, the Landlord has agreed to lease unto the Tenant, and by these presents does hereby lease the Property unto the Tenant,and the Tenant hereby leases the Property from the Landlord,and the parties do covenant and agree as follows: 1. Term. This Lease shall be for three years in duration, commencing April 18,2018, (the "Commencement Date")and ending on October 16,2019,(the"Termination Date"),unless terminated earlier based upon mutual agreement by the Parties.Notwithstanding the above, 1 Tenant shall have the right to terminate this Lease upon sixty (60)days written notice to Landlord. However,the Landlord may terminate this Lease for breach of the conditions set forth herein or upon the sale by the original developer of all the condominium units in the development project commonly known as Ritz-Carlton Residences in Sunny Isles Beach. Upon the issuance of the written notice by either party of its intent to cancel the Lease in accordance with this Section 1, the Lease will terminate sixty (60) days after providing such notice and neither party hereto shall have any further rights,duties or obligations one to the other hereunder. 2. Premises. a. Lease of Premises. Landlord leases to the Tenant, and Tenant leases from Landlord the Property upon the terms specified in this Lease. b. Acceptance of Premises. Except as specified elsewhere in this Lease, a j rJ � �• .+ • Landlord makes no representations or warranties to Tenant regarding the Property, including the structural condition of the Property and the condition of all mechanical, electrical, and other systems on the Property. Tenant shall be responsible for performing any work necessary to bring the Property into condition satisfactory to Tenant. By signing this Lease, Tenant acknowledges that it has had adequate opportunity to investigate the Property, acknowledges responsibility for making any corrections, alterations and repairs to the Property, and acknowledges that the time needed to complete any such items shall • not delay the Commencement Date. 3. Uses. The Property shall be used only by Tenant. The Property shall not be used for any other business or other purpose without the prior written consent of Landlord. No act shall be done on or around the Property that is unlawful or that will increase the existing rate of insurance on the Property,or cause the cancellation of any insurance on the Property.Tenant shall not commit or allow to be committed any waste upon the Property,or any public or private nuisance. 4. Compliance with Laws. Tenant shall not cause or permit the Property to be used in any way which violates any law, ordinance, or governmental regulation or order, Tenant shall be responsible for complying with all laws applicable to the Property as a result of Tenant's particular use as a result of Tenant operating the Property. If the enactment or enforcement of any law,ordinance,regulation or code during the Lease terms requires any changes to the Property during the Lease term,the Tenant shall perform all such changes at its expense if the changes are requited due to the nature of Tenant's activities at the Property,or due to alterations that Tenant seeks to make to the Property. 5. Utilities. During the term of this Lease,the Tenant shall be solely responsible for the payment of any and all utilities of the Property, including, but not limited to, • gas, electric, telephone, cable and any service fees required for the installation of • these utilities. The Tenant shall also be solely responsible for the payment of any and all water bills,sewer bills and garbage collection costs concerning the Property. Landlord shall not be liable for any loss, injury or damage to person or property caused by or resulting from any variation, intemrption,or failure to utilities due to any cause whatsoever. Tenant shall install and connect, if necessary,and directly pay for all water,sewer; aanitorial electricity,garbage removal,heat, gas,,j � Y g telephone,and other!utilities and services used by Tenant of the Property during the term, whether or not such services are billed directly to Tenant. Tenant will also procure, or cause to be procured, without cost to Landlord,all necessary permits,licenses or other authorizations required for the lawful and proper installation, maintenance, replacement and removal on or from the Property of • wires, pipes,conduits, tubes,and other equipment and appliances for use in supplying all utilities or services to the Property. 2 j a, 6. Taxes. Tenant shall pay all Taxes(defined below)applicable to the Property during the Lease term. AU payment for Taxes.shall be payable in November of the taxable year. Tenant shall promptly,furnish Landlord with satisfactory evidence that Taxes have been paid. If any Taxes paid by Tenant cover any period of time before or after the expiration of the term,Tenant's share of those Taxes paid will be prorated to cover only the period of time within the tax fiscal year during which this Lease was in effect, and Landlord shall promptly reimburse or credit Tenant to the extent required. If Tenant fails to timely pay any Taxes,Landlord may pay them,and Tenant shall repay such amount to Landlord upon demand. • The term "Taxes" shall mean: (i) any form of tax or assessment imposed on the Property by any authority, including any city, county, state or federal government, or any improvement district,as against any legal or equitable interest of.Landtord.or Tenant in the. Property,and(ii)any form of personal property tax or assessment imposed on any personal property, fixtures, furniture, tenant improvements, equipment, inventory, or other items, and all .rcplacements, improvements, and additions to them, located on the Property', whether owned by Landlord or Tenant. The term ''faxes" shall exclude any net income tax imposed on Landlord for income that Landlord receives under-this Lease. Tenant may contest the amount or validity, in whole or in part, of any Taxes at its sple expense,only after paying such Taxes or posting such security as Landlord may reasonably require in.order to protect the Property against loss or forfeiture. Upon the termination of any such proceedings,Tenant shall pay the amount of such Taxes or part of such Taxes as finally determined, together with any costs, fees, interest penalties, or other related liabilities. Landlord shall cooperate with Tenant in contesting any Taxes, provided Landlord incurs no expense or liability in doing so. • 7. Rent. Tenant shall be required to pay the nominal rent of five thousand dollars ($5,000A0)per month due on the first day of each month, 8. Clean and Sanitary Condition. During the term of the Lease,the Tenant shall keep and maintain the Property in a clean and sanitary condition at all times,free.of all.garbage and debt-is. All garbage and similar debris shall be deposited.by the Tenant in facilities specifically for garbage collection. Tenant shall be responsible for placing the garbage bags and/or containers and recycling container(s)at the curb for pick-up and to return the containers to their appropriate place. Tenants shall further comply with all local ordinances and regulations imposed by the City of Sunny Isles Beach relating to maintaining the • Property in a clean and sanitary condition and relating to the collection of garbage and similar debris. Tenant shall be solely liable for any action and/or fines that may be brought by the City of Sunny Isles Beach, or any other enforcement agency, as a result of the Property not being kept iu a clean and sanitary condition. 3 10. Alterations. Tenant shall perfonii all work and alterations within the Property at Tenant's expense in compliance with all applicable laws provided that notice is provided to Landlord. Tenant shall pay, when due, all.claims for labor or materials furnished to or for Tenant at or for use in. the Property, which claims are or may be secured by any mechanics' or utaterialmens' liens against the Property or-any interest therein. Landlord shall be deemed the owner of all alterations. 11. Repairs and Maintenance. it shall be the Tenant's sole responsibility to keep and maintain th.e entire Property, and every part thereof, in good condition and make all necessary repairs and replacements necessary to keep the Property in safe operating condition during the term of the Lease. Tenant shall keep and maintain the Property in a clean, sanitary and safe condition, at all times during the term of the Lease, in accordance with all local,state and federal laws and in accordance with all directions, rules and regulations of the health officer, fire marshal, building inspector, or other proper officials of the governmental agencies having jurisdiction,at the sole cost and expense of Tenant,and Tenant shall comply with all requirements of law,ordinance and otherwise; affecting said Property. Tenant shall keep and maintain the Property including the roof, heating, plumbing, electrical,air conditioning,and other mechanical systems in good condition and repair and shall replace all broken glass in the Property with glass of the same kind and quality as that broken. if Tenant refuses or neglects to commence and to complete repairs promptly and adequately after written notice from Landlord and after Tenant has failed to complete said repairs within.thirty(30)days from the date of'such written notice,Landlord may,but.shall not be required to do so, make and complete said repairs, and Tenant shall pay the cost thereof to Landlord upon demand, At the time of the expiration of the tenancy herein, Tenant shall surrender the premises in good condition, reasonable wear and tear excepted. 12. Access and Rit,ht of Entry. After reasonable notice from Landlord(except in cases of emergency where no notice is required) Tenant shall permit Landlord and its agents, employees and contractors to enter the Property at all reasonable times to make any necessary repairs, inspections,alterations and/or improvements,provided that Landlord's activities within the Property shall not unreasonably interfere with Tenant's use and enjoyment of the Property. This Section shall not impose any repair or other obligation upon Landlord not expressly stated elsewhere in this Lease. 13. Sit;naee. Tenant shall install signage at Tenant's sole option and expense and in compliance with all applicable laws. Tenant shall not damage or deface the Property in installing or removing signage and shall repair any injury or damage to the Property caused by such installation or removal, 4 Y.S J u") 14, Destruction. if the Property is partially damaged but not rendered untenantable, by fire or other insured casualty, then Tenant, at its option may diligently restore the Property and this Lease shall not terminate. However, the Property shall nor be deemed untenantable if less than twenty five percent (25%) of the Property is damaged. Tenant shall have no obligation to restore the Property if insurance proceeds are not available to pay the entire cost of such restoration. If insurance proceeds are available to Tenant but are not sufficient to pay the entire cost of restoring the Premises, then Tenant may elect to terminate this Lease and keep the insurance proceeds, by notifying the Landlord within sixty (60) days of the date of such casualty. The parties acknowledge and agree that since the Tenant is paying for the insurance premiums for the Property, in the event there is a claim made pursuant to any insurance policy associated with the Property, Tenant shall be entitled to receive and keep one-hundred (100%) percent of any and all insurance proceeds and the Landlord shall have no right to any of these insurance proceeds and Landlord shall have nothing to do with same. if the Premises are entirely destroyed,or partially damaged and rendered untenantable, by tire or other casualty,Tenant may,at its option:(a)terminate this Lease as provided herein, or(b)restore the Property to its previous condition. Tenant shall provide Landlord of its election hereunder within sixty(60)days of the date of such casualty. Provided the parties comply with the obligations under this Section, neither party shall be entitled to any damages, compensation or claim shall be payable for inconvenience, loss of business or annoyance directly, incidentally or consequentially arising from any repair or restoration of any portion of the Property. Landlord-will not carry insurance of any kind for the protection of Tenant or any improvements paid for by Tenant or on Tenant's furniture or on any fixtures, equipment, improvements or appurtenances of Tenant under this Lease, and Landlord shall not be obligated to repair any damage thereto or replace the same. 15. Insurance. Liability Insurance. During the Lease term, Tenant shall pay for and maintain commercial general liability insurance with broad form property damage and contractual liability endorsements.This policy shall name Landlord as an additional insured,and shall insure Tenant's activities and those of Tenant's employees,officers,contractors, licensees, j agents,servants,employees,guests,invitees or visitors with respect to the Property against. loss, damage or liability for personal injury or bodily injury (including death) or loss or damage to property with a combined single limit of not less than two million dollars ($2,000,000.00) in the aggregate.Tenant's insurance will be primary and noncontributory with any liability insurance can-led by Landlord. i 16. Indemnification. Tenant shall defend, indemnify, and hold Landlord, including its officers,employees and agents harmless against all liabilities, damages, costs, and 5 expenses, including attorneys' fees, for personal injury, bodily injury (including death)or property damage arising from any negligent or wrongful act or omission of Tenant or Tenant's officers,contractors, licensees, tenants, lessees,agents, servants, employees, guests, invitees, or visitors on or around the Property,.or arising from any breach of this Lease by Tenant. Tenant shall use legal counsel acceptable to . Landlord in defense of any action within Tenant's defense obligation. The provisions of.this Section 16 shall survive expiration or termination of this Lease. 17. Assignment and Subletting. "Tenant shall not assign,sublet,mortgage,encumber,or otherwise transfer any interest in this Lease(collectively referred to as a"Transfer") or any part of the Property, without first obtaining Landlord's written consent. No Transfer shall relieve Tenant of any liability under this Lease notwithstanding Landlord's consent to such Transfer. Consent to any Transfer shall not operate as a waiver of the necessity for Landlord's consent to any subsequent Transfer. if Tenant is a partnership, limited liability company, corporation, or other entity, any transfer of this Lease by merger,consolidation,redemption or liquidation,or any change(s) in the ownership of,or power to vote,which singularly or collectively represents a majority of the beneficial interest in Tenant,shall constitute a Transfer under this Section. As a condition -to Landlord's approval, if given, any potential assignee or sublessee otherwise approved by Landlord shall assume all obligations of Tenant under this Lease and shall be jointly and severally liable with Tenant and any guarantor, if required, for any payments to Landlord as well as the performance of all terms of this Lease. In connection with any Transfer,Tenant shall provide Landlord with copies of all assignments,sublease's, and assumption instruments. Notwithstanding the above,without first obtaining Landlord's written consent, the Tenant may assign, sublet, or otherwise transfer any interest in this Lease or any part of the • Property to an entity which is currently subletting the Property under a sublease approved by the City provided that written notice is provided to the City. 18. Liens. Tenant shall deliver the Property to the Landlord at the end of this Lease free and clear of any liens. 19. Notices. All notices under this Lease shall be in writing and effective (i) when delivered in person or via overnight courier, (ii) three (3) days after being.sent by registered or certified mail to Landlord or Tenant, or (iii) upon confirmeri transmission by facsimile. 20. Costs and Attorney's Fees. If Tenant or Landlord engage the services of an attorney to collect monies due or to being any action for any relief against the other, declaratory or otherwise,arising out of this Lease,including any suit for the recovery of any payments due and owing,or-possession of the Property,the losing party shall 6 1 pay the prevailing party their reasonable attorneys' fees and costs in such suit, in mediation or arbitration,at trial on appeal,or in any bankruptcy proceeding_ 21. General. a. Entire Agreement. This Lease contains all of the covenants and agreements between Landlord and Tenant relating to the triple net leaseback arrangement described herein. No prior or contemporaneous agreements or understanding pertaining to the Lease shall be valid or of any force or effect and the covenants and agreements ofthis Lease shall not be altered, modified or added to except in writing signed by Landlord and Tenant. b. Severability. Any provision of this Lease which shall prove to be invalid, void.or illegal shall in no way affect, impair or invalidate any other provision of this Lease. 1 c. Force Majeure, Time periods for either party's performance under any provisions of this Lease shall be extended for periods of time during which the party's performance is prevented dire to circwnstances beyond the reasonable control of such party,, including without limitation, fires, floods, earthquakes, lockouts, strikes, embargoes, governmental regulations, acts of God, public enemy,war or other strife, d. Governing Law.This Lease shall be governed by and construed in accordance with the laws of the State of Florida. t! e. Authority of Parties. Each party signing this Lease represents and warrants to the other that it has the authority to enter into this Lease,that the execution and delivery of this Lease has been duly authorized,and that upon such execution and delivery this Lease shall be binding upon and enforceable against the party on signing, f. Time. "Day" as used herein means a calendar day and "business day" means any day on which commercial banks are generally open for business in the state where the Premises are situated. Any period of time whic.h would otherwise end on a non-business clay shall be extended to the next following business day. Time is of the essence of this Lease. g. Counterparts. This Lease may be signed in one or more counterparts,and all.such counterparts shall form but one integrated agreement. This. Lease may be executed by facsimile signatures, IN WITNESS WHEREOF,the parties hereto have executed this document as of the date mentioned above. 7 Se f ' WITNESSES; CORNER HOUSE,LLC -416 A Vi tillffArtea Min Print Name Signature and iale ATTEST: . CITY OF S '' ' • S BEACH .•B' . • '1 BY: Jane A.Hines,MMC,City Clerk Gem:• .Scholl,Mayor APPROVED AS T•$ FORM AND LEGAL SUF'. , y jl;, BY:: • • • s .ot,City • orney . 8 A _7 City of Sunny isles Beach 14,sir v 18070 Collins Avenue •:.A.15ki Sunny Isles Beach, Florida 33160 (305)947-0606 City Hall ,o) c'/*? iog I- (305)949-3113 Fax . MEMORANDUM . • • TO: The Honorable Mayor and City Commission . • • FROM: Christopher J. Russo, City Manager DATE: 5/16/2019 Approving a First Amendment to the Triple Net RE: Leaseback Agreement with Ctirrier HoUse, LLC for the Property Located et 15800 Collins Avenue RECOMMENDATION: It is recommended that the City ComMisSiOn approVe.the attached Resolution. . . • • REASONS: ; • On March 17, 2016, the City entered into a 18-month Triple Net • Leaseback agreement with:Comer House; LLQ,.who,isthe clevelop.er of Ritz-Carlton Residences, for the property Iodated at15800 Collins • . Avenue. The • developer has expressed their desire to extend the termination date to-October 16, 2020;and also:Includa an additional:six (6) mOnth renewal option.All other terms arid..conditidng:-previously agreed to in the original agreement will remain in effect. • ATTACHMENTS: Description RetolutiOn First Amendment Item Number: 10.D. 72