HomeMy WebLinkAboutReso 2015-2411 RESOLUTION NO. 2015 - / 1
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA,APPROVING A LEASE BACK
AGREEMENT WITH TRG SUNNY ISLES VII WEST, LLC FOR
THE PROPERTY LOCATED AT 15800 COLLINS AVENUE,
ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT;AUTHORIZING THE
CITY MANAGER AND CITY ATTORNEY TO DO ALL THINGS
NECESSARY TO EFFECTUATE THIS RESOLUTION;
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City intends to acquire the property located at 15800 Collins Avenue by
donation from TRG Sunny Isles VII West, LLC ("Grantor"); and
WHEREAS,the Grantor desires to lease the property for a nominal amount from the City;
and
WHEREAS,the City Commission wishes to approve the Triple Net Leaseback Agreement
for 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 Triple Net Leaseback Agreement between the City and TRG Sunny Isles VII West,
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 TRG Sunny Isles VII West, LLC.
Section 3. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are 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 day of April, 2015.
Approving Triple Net Leaseback Page I of 2
George H choll, Mayor
ATTEST:
Jane A. Hines, MMC, City Clerk
APPROVED AS TO FORM
AND E' i OF CIENCY:Ai,
Yot, City At orney
Moved by: Y i Ca yvt�v- 6A-1-1-0
Seconded by: arntmSll Ot)fia Liv 1 3
Vote: G-(:)
Mayor Scholl x/(Yes) (No)
Vice Mayor Gatto _(Yes) (No)
Commissioner Aelion /(Yes) (No)
Commissioner Goldman ✓(Yes) (No)
Commissioner Levine ✓(Yes) (No)
Approving Triple Net Leaseback.doc Page 2 of 2
Nr^j�
TRIPLE NET LEASEBACK AGREEMENT
THIS LE NE LEASEBACK AGREEMENT is entered into and effective as of
this t day of \ 1 2015, by and between THE CITY OF SUNNY ISLES
BEACH, FLORIDA, body corporate and politic organized under the laws of the State
of Florida, hereinafter referred to as the "LANDLORD", and TRG SUNNY ISLES VII
WEST,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 the
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 17,
2015, (the "Commencement Date") and ending on April 16, 2018, (the "Termination
Date"), unless terminated earlier based upon mutual agreement by the Parties. The Tenant
shall be required to immediately vacate the Property.
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,
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.
112376092.2
SIB
3. Uses. The Property shall be used only by Tenant or its permitted subtenant or
assignee for any lawful purpose. 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 required 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, interruption,or failure to utilities due to any cause whatsoever.
Tenant shall install and connect, if necessary, and directly pay for all water,
sewer, gas,janitorial, electricity, garbage removal, heat, 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.
6. Taxes. Tenant shall pay all Taxes (defined below) applicable to the Property
during the Lease term. All 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.
2
112376092.2
SIB
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 Landlord 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 replacements, improvements, and additions to them, located on the
Property, whether owned by Landlord or Tenant.
The term "Taxes" 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 sole
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 one dollar ($1.00) per
year.
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 debris. 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 in a clean and sanitary condition.
10. Alterations. Tenant shall perform 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
materialmens' liens against the Property or any interest therein. Landlord shall be
deemed the owner of all alterations, including fixtures ( but excluding any personal
property which shall belong to Tenant) at the termination of this lease.
11. Repairs and Maintenance. It shall be the Tenant's sole responsibility to keep and
maintain the entire Property, and every part thereof, in good condition and make all
3
112376092.2
SIE
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 Right 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. Signage. Tenant shall install signage at Tenant's sole 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.
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. The Property shall be deemed untenantable
if more 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, or restore the premises
notwithstanding the insufficiency of 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
4
112376092.2
Si
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
fire 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, 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
$2,000,000.00 (two million dollars). Tenant's insurance will be primary and
noncontributory with any liability insurance carried by Landlord.
16. Indemnification. Tenant shall defend, indemnify, and hold Landlord, including its
officers, employees and agents harmless against all liabilities, damages, costs, and 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 except to RDR
Seashore L.L.C. for which no consent is required. 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. In connection with each request for consent to a Transfer, Tenant
5
112376092.2
S
shall pay the reasonable cost of processing same, including attorneys fees, upon demand
of Landlord.
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,
subleases, and assumption instruments.
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 confirmed 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 bring 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 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 of this 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.
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 due to circumstances 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.
6
112376092.2
SIB
d. Governing Law. This Lease shall be governed by and construed in accordance with the
laws of the State of Florida.
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 which would otherwise end on a non-business day 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.
WITNESSES: TRG SUNNY ISLES VII WEST,LLC.
dt+
Signature �'
(;cr, Gc $,e r BY: Afiiiiiiiii
Print Name Signa re and Ti 1
Y+ ere-4 -r ..0.—
ATTEST: CITY 0, Y ISLES BEACH
BY: 11..10-0 BY:
Julie A. Hines,MMC,City Clerk G,•rge H. Scholl, Mayor
APPROVED AS TO FORM AND
LEGAL 0 'I',j'C
B • Aril
;Fr tinot, City Attorney
7
112376092.2
S 1 B
EXHIBIT"A"
Legal Description
Lots 17 and 18, in Block 1 of BAYVIEW POINT, according to the plat thereof as recorded in
Plat Book 46,Page 98,of the Public Records of Miami-Dade County,Florida.
AND
A part of Lot 82, TATUMS OCEAN BEACH PARK SUBDIVISION, according to the plat
thereof as recorded in Plat Book 5, Page 35, of the Public Records of Miami-Dade County,
Florida,described as follows:
Begin at the point of intersection of the South line of said Lot 82 with the Westerly right-of-way
line of said State Road A-1-A,the same being the NE corner of Lot 17,Block 1, of BAYVIEW
POINT,according to the plat thereof as recorded in Plat Book 46,Page 98,of the Public Records
of Miami-Dade County, Florida; thence run due West along the South line of said Lot 82 and
being along the North line of Lot 17,Block 1 of said BAYVI.EW POINT for a distance of 86.17
feet to a point, the same being a corner of said Lot 17; thence run North 11 degrees 18 minutes
36 seconds East along a line to a point and being along an Easterly line of Lot 17,Block 1 of said
BAYVIEW POINT for a distance of 50.99 feet to the most Northerly corner of said Lot 17,said
point and corner being 50 feet North of,as measured at right angles,to the South line of said Lot
82;thence run South 85 degrees 51 minutes 16 seconds East along a line for a distance of 79.59
feet to its intersection with the Westerly right-of-way line of said State Road A-1-A; thence run
South 4 degrees 08 minutes 44 seconds West along the Westerly right-of-way line of said State
Road A-1-A fora distance of 44.36 feet to the point of beginning.
112358890/
IF