Mngmt & Leasing Agreement Anchor Shops & Parking Garagesue- ~- °~' ~
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MANAGEMENT AND LEASING AGREEMENT
FOR THE RETAIL COMPONENT OF THE ANCHOR SHOPS AND
PARKING GARAGE
THIS AGREEMENT is made as of r'ltt. ~ 2.d~ by and between the Miami
Beach Redevelopment Agency ("RDA" "Owner"), and Miami Beach Community
Development Corporation, Inc., a Florida ot-For-Profit Corporation ("Contractor"):
WITNESSETH:
WHEREAS, Owner is the owner of a fee interest in a site containing a municipal
parking garage and appurtenances containing approximately eight hundred (800)
parking spaces (the "Garage") and certain retail space (the "Retail Space "), commonly
referred to as Anchor Shops, and located in an area bounded by Washington and
Collins Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade
County, Florida, as more particularly described in Exhibit "A", attached hereto and made
a part hereof (said land, buildings and any other improvements now or hereafter located
thereon hereinafter collectively referred to as the "Project"); and
WHEREAS, the Retail Space has been managed by the Contractor, pursuant to
the terms of a Management and Leasing Agreement, since January 19, 2001; and
WHEREAS, the initial Agreement with the Contractor expired on December 31,
2002, which term included cone-year renewal option, exercised on December 31, 2001;
and
WHEREAS, on May 30, 2003, the Chairman and Members of the Miami Beach
Redevelopment Agency (RDA), following a formal Request for Proposals (RFP) process,
approved a second Management and Leasing Agreement with the Contractor for the
management and leasing of the Retail Space, with an initial term of three (3) years,
commencing on May 1, 2003, and expiring on April 30, 2006; and
WHEREAS, on March 8, 2006, subsequent to the recommendation of the
Finance and Citywide Projects Committee, the RDA Board authorized a one (1) year
renewal option, as provided for in the Agreement, which extended the term until April
30, 2007; and
WHEREAS, on April 19, 2007, the Finance and Citywide Projects Committee
recommended entering into a new Agreement with the Contractor ;and
WHEREAS, Owner wishes to continue to retain the services of Contractor as
manager of the Project with responsibilities for managing, operating, maintaining and
servicing the Project, for coordinating the leasing of the Project, and for the performance,
on behalf of Owner, of all obligations of Owner relating thereto:
As landlord under all present and future leases of space of the
Project;
As grantor under any security deed now or hereafter encumbering
all or any portion of the Project;
iii. As a party to any easements that now or hereafter affect the
Project;
iv. Otherwise as owner of the Project; and
WHEREAS, Contractor is willing to continue to perform such services with regard
to the management, operation, maintenance and servicing of the Project and the
obligations of Owner under the Basic Documents relating thereto; and
WHEREAS, Contractor is willing to cooperate with and use its best efforts to
assist Owner with regard to the leasing of space now or hereafter available for lease in
the Project.
NOW THEREFORE, in consideration of the foregoing and of the full and faithful
performance by the parties of all the terms, conditions and obligations imposed on them
hereunder, the parties hereto agree as follows:
1. Appointment of Contractor. Owner hereby appoints Contractor as
manager of the Project with the responsibilities and upon the terms and conditions set
forth herein and Contractor by its execution hereof does hereby accept such
appointment.
Contractor's Tax Payer Identification number is 59-211-0264.
2. Management Services of Contractor.
2.1 Orientation. Contractor hereby acknowledges receipt of certain books
and records with respect to the retail leasing and retail operation of the Project, personal
property on the Project belonging to Owner, and all service contracts relating to the
maintenance and operation of the Project. Within thirty (30) days after the effective date
of this Agreement, Contractor shall prepare and submit to Owner a complete list of all
books and records of Owner held by Contractor, a list of personal property, and a list of
all service contracts. Contractor shall update said list within thirty (30) days after the
effective date of this Agreement.
2.2 Management of the Project. Contractor shall devote its best efforts,
consistent with the first-class professional management of similar facilities, to serving
Owner as manager of the Project, and shall perform its duties hereunder in a diligent,
careful and vigilant manner so as to manage, operate, maintain and service the Project
as a professional retail project. The services of Contractor hereunder are to be of a
scope and quality equal to those generally performed by professional managers of other
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similar professional retail buildings in South Florida. Contractor shall make available to
Owner the full benefit of the judgment, experience and advice of the members of
Contractor's organization and staff with respect to the policies to be pursued by Owner
in operation of the Project, and will perform such services as may be reasonably
requested by Owner in operating, maintaining, servicing, improving and leasing the
Project.
2.3 Use and Maintenance of the Project. Contractor agrees not to knowingly
permit the use of the Project for any purpose which might void any policy of insurance
held by Owner or which might render any loss insured thereunder not collectible, or
which would be in violation of any governmental restriction. It shall be the duty of
Contractor at all times during the term of this Agreement to operate and maintain the
Project according to the highest standards achievable consistent with the expressed
plan of Owner. Contractor shall use its best efforts to secure full compliance by the
Project tenants with the terms and conditions of their respective leases. Contractor shall
be expected to perform such other acts and deeds as are reasonable, necessary and
proper in the discharge of its duties under this Agreement.
2.4 Specific Duties of Contractor. Without limiting the duties and obligations
of Contractor under any other provisions of this Agreement, Contractor shall have the
following duties and shall use its best efforts to perform the following services:
A. Monies Collected. Collect all rent and other payments due from
tenants in the Project and any sums otherwise due Owner with respect to the Project in
the ordinary course of business. Owner authorizes Contractor to request, demand,
collect, receive and receipt for all such rent and other charges and, with Owner's prior
knowledge and written approval, to institute legal proceedings in the name of, and as an
expense of, Owner for the collection thereof and for the dispossession of tenants and
other persons from the Project. Such expense may include the engaging of counsel for
any such matter, except that Contractor must notify Owner before engaging any
counsel, in the event that Owner opts to use counsel provided by the City of Miami
Beach Attorney's Office. All monies collected by Contractor shall be forthwith deposited
in the separate bank account or accounts already established by Owner for such
purpose.
B. Obligations under Management and Leasing Agreement.
Contractor shall duly and punctually perform and comply with all of the obligations,
terms and conditions required to be performed or complied with by Owner as provided
for in this Agreement, relating to management, operation, maintenance and servicing of
the Retail Space, including without limitation, the timely payment of all sums required to
be paid thereunder, to the extent of funds of Owner available for payment, all to the end
that Owner's interest in the Project and its interests as Landlord under the leases shall
be preserved and no default chargeable to Owner shall occur under the Basic
Documents. After disbursements of all funds specified herein or in any other provision of
this Agreement, and after establishing a cash reserve in an amount not greater than
Three Thousand Dollars and 00/100, ($3,000.00) any balance remaining at the time
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each monthly report is forwarded to Owner, as described in Section 7.2 herein, during
the term of this Agreement, shall be disbursed or transferred to Owner or to such other
person as directed from time to time by Owner.
C, Insurance. To the extent funds of Owner are available; Contractor
shall duly and punctually pay, on behalf of Owner, all insurance premiums of the Project
or any part thereof, same to be done prior to the time that any insurance policy would
lapse due to nonpayment of the premium.
D. Repairs and Maintenance. Contractor shall make all repairs and
perform all maintenance on the building, appurtenances and grounds of the Project, as
required to be made by Owner under the Basic Documents and in a manner acceptable
to Owner. For any individual item of repair or replacement, the non-budgeted expenses
incurred shall not exceed the sum of One Thousand Dollars and 00/100 ($1,000.00),
unless Contractor obtains the prior written authorization of Owner; excepting, however,
that emergency repairs immediately necessary for the preservation and safety of the
Project or danger to life or property, may be made by Contractor without the prior written
approval of Owner, provided that immediately after such emergency repairs, Contractor
shall send Owner a report of any repairs so made.
E. Equipment and Supplies. Contractor shall make all arrangements
for the furnishing of the Project with utility, maintenance and other services and for the
acquisition of equipment and supplies as necessary for the management, operation,
and maintenance and servicing of the Project. The non-budgeted purchase of any
single piece of equipment or order of supplies shall not be made without the written
authorization of Owner.
F. Tax Assessments. Contractor shall keep Owner informed of any
change in the amount of real or personal property assessments or as to the advisability
of contesting either the validity or the amount thereof. Contractor shall provide Owner
with sample notice of such information in the event Owner determines to contest the
validity or amount of said real or personal property assessments.
G. Insurance Coverage. Contractor shall carry insurance as required
by law with respect to the Project and the operations related thereto, whether conducted
on or off the premises, in an amount not less than one million dollar ($1,000,000), per
occurrence, combined single limit, subject to adjustment for inflation and designating
Owner, the City of Miami Beach and its employees and agents, as a named insured.
In the event that Owner requires, at its sole option, Contractor to procure such
insurance, Owner shall be given written notice to Contractor specifying the types of
coverage, policy limits and the dates on which such coverage must be effective, and the
Contractor shall thereafter obtain not less than three (3) bids for such insurance from
insurance companies that meet the requirements set forth in this Article and shall place
such insurance with the company that provides the lowest overall premium to the
Owner. The insurance required under this Article shall include the following:
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General Liability coverage in an amount not less than one million
dollars ($1,000,000), per occurrence, combined single limit, subject
to adjustment for inflation and designating Owner, the City of Miami
Beach and its employees and agents, as a named insured;
Worker's Compensation and Employers Liability Insurance, as
required pursuant to Florida Statute;
iii. Fidelity Insurance covering any dishonest or fraudulent act of the
Contractor and/or employees whether acting alone or in collusion
with others, including robbery within the premises, with a limit of not
less than $5000 per employee and $25,0000 for robbery per month;
iv. Such other insurance as the Owner may reasonably request,
provided such insurance is commonly provided for situations in
South Florida similar to this Agreement.
v. Insurance must be furnished by insurance companies authorized to
do business in the State of Florida, and approved by the City of
Miami Beach's Office of Risk Management and the Contractor's
insurance company. The companies must be rated no less than
"B+" as to management, and not less than "Class VI" as to strength
by the latest edition of Best `s Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent, subject to
approval of the City's Risk Manager.
vi. Original Certificate of Insurance for the above coverage must be
submitted to the City's Risk Manager for approval prior to any work
commencing. These certificates will be kept in the Office of Risk
Management, 1700 Convention Center Drive, Miami Beach, Florida
33139.
Contractor shall promptly investigate and make a full, timely written report to the
insurance company, with a copy to Owner, as to all accidents, claims for damages
relating to the ownership, operation and maintenance of the Project, any damage or
destruction to the Project and the estimated cost of repair thereof, and shall prepare any
and all reports required by any insurance company in connection therewith. All such
reports shall be filed timely with the insurance company as required under the terms of
the insurance policy involved. Contractor shall have no right to settle compromise or
otherwise dispose of any claims, demands or liabilities, whether or not covered by
insurance, without the prior written consent of Owner. Nothing contained in this
paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the
limitation placed upon the City's liabilities as set forth in Florida Statutes Section 768.28.
H. Personnel. Contractor shall employ such personnel as employees
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of and at the expense of Contractor or its affiliates, and not of Owner, as may be
necessary in order for Contractor to perform its obligations hereunder. No personnel
shall be employed by Contractor for the Project without prior written approval by Owner.
Contractor shall maintain commercial liability insurance coverage with a minimum
liability limit of Five Hundred Thousand Dollars and 00/100 ($500,000.00) to cover its
employees who handle or who are responsible for funds belonging to Owner. Contractor
shall comply with all laws relating to the employment by the Contractor of its employees.
I. Other Services. Contractor shall perform all other services that are
normally performed in connection with the operation of similar retail buildings and
specifically as provided in South Florida to tenants of like premises, without additional
charge; including but not limited to tenant coordination and build-out improvements.
Should Contractor provide any services in addition to the above additional services for
which a separate charge is made ("Additional Charge"), then a separate charge for such
Additional Services shall be made to the tenants receiving such Additional Services. All
such Additional Services shall be provided by Contractor directly to the tenants, and all
such separate charges shall be retained for the account of Owner. All costs and
expenses incurred in connection with furnishing such Additional Services shall be paid
by Contractor on behalf of Owner, to the extent of funds of Owner available for
payment, and any net profit shall accrue to any net loss for the account of Owner.
Notwithstanding the above, the Additional Services shall exclude the installation of
vending or other coin-operated machine or concessions, without the written
authorization of Owner.
J. Compliance with Laws. Contractor shall comply with all applicable
Federal, State, County, and Municipal laws and shall take any and all action as may be
necessary to comply with any and all orders or requirements affecting the Project by a
federal, state, county or municipal authority having jurisdiction thereover, and orders of
the Board of Fire Underwriters or other similar bodies. Contractor shall make
recommendations to Owner to challenge or question any such order or requirement
where Contractor believes that such a challenge or question is appropriate.
Notwithstanding same, Owner shall have the final discretion as to deciding whether to
undertake any recommended challenge or question.
K. Notices. All notices from any mortgagee, ground lessor or other
party to any of the Basic Documents given pursuant thereto or pertaining thereto, if any,
and all notices from any governments or official entities, if any, shall be immediately
delivered to Owner by Contractor.
3. Leasing Services of Contractor.
3.1 Leasing. Contractor shall retain or otherwise engage Felenstein Koniver
Stern Realty Group (FKS) as the exclusive leasing broker of Owner for the purpose of
leasing any part of the Project now or hereafter available for lease during the term of
this Agreement. In performing its duties, Contractor shall adhere to the standards for
leasing consistent with those of leasing agents for retail buildings in the South Florida
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area.
3.2 Terms of Leases. Unless otherwise specified by Owner, the Project shall
be leased only on the following terms:
To tenants not affiliated with Contractor, Owner, or any partner to
the Owner, the existing tenants as of effective date of this
Agreement or any party affiliated with existing tenants, and meeting
criteria set by Owner as to credit worthiness;
On a form of lease approved by Owner;
iii. For a term approved by Owner;
iv. At a rental rate approved by Owner; and
v. With a rental increase for each subsequent period of the lease
term, subject to approval of Owner.
3.3 Leasing Procedure.
A. Prospective Tenants. Contractor shall inform Owner's
Representative over the telephone of any prospective tenants and shall inform Owner's
Representative whether or not the prospective tenants and lease terms fall within the
Leasing Guidelines and such other information as Owner's Representative shall require.
B. Lease Brief. Contractor shall prepare a lease brief on a form
supplied to Contractor by Owner, shall submit a full breakdown of tenant finish expense,
if any, and shall submit the lease brief, tenant finish breakdown, and prepared lease to
Owner's Representative for review and signature.
C. Signing of Lease. Owner shall have the right to sign each and every
lease of the Project and Contractor shall not be authorized to sign any lease on behalf
of Owner or be permitted to act as an agent of Owner in any capacity except as
specifically authorized by Owner. Notwithstanding any provision of Section 3.3 or of this
Agreement, Owner shall have no duty to approve any lease meeting the criteria
hereunder, and such approval shall be within the final and exclusive review, and within
the sole absolute discretion of Owner, and Owner shall, accordingly, incur no liability to
Contractor for any failure or refusal to approve a lease submitted pursuant to the terms
herein.
D. Leasing Report. Each month, as a part of the monthly report
described in Section 7.2, Contractor shall submit to Owner an internal leasing report
relative to current occupancy of the Project, potential tenants, and ongoing negotiations.
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3.4 Compensation for Leasing Services.
A. Leasing Commissions. Except as provided in Section 3.5 entitled
"Outside Brokers", Owner shall disburse to Contractor the following monies, which
Contractor represents and warrants will be paid directly to Leasing Broker, as set forth
in Section 3.1, as if paid directly by Owner to said Broker for its leasing services
hereunder:
An amount equal to the aggregate of the following percentages of the Minimum Rent by
the tenant to Owner during the following years of the term of the Lease:
Six (6%) percent of the Minimum Rent for years one (1) through
five (5) of the term of the Lease; and
ii. Four (4%) percent of the Minimum Rent for years six (6) through
ten (10) of the term of the Lease; and
iii. Three (3%) percent of the Minimum Rent for the remaining years of
the term of the Lease.
The term "Minimum Rent" shall exclude additional rent or other charges of any type or
nature whatsoever paid or payable by the tenant under the Lease including amounts
payable on account of increases in real estate taxes, operating expenses, any
escalations, utility payments or other charges for any services, if any. No Leasing
Commissions will be paid for renewals, relocations and/or expansions of the existing
leases.
B. Payment Schedule. Contractor shall be entitled to one-third of the
Leasing Commission described in Section 3.4A and 3.5 upon full execution of a lease
between Owner and tenant, one-third when tenant commences payment of the
Minimum Rent under the Lease, and the remaining one-third, within six (6) months of
payment of the Minimum Rent.
C. Indemnification. Contractor shall indemnify, save and hold Owner
harmless from and against any and all losses, damages, claims, costs and expenses
(including attorney's fees and costs), in any way resulting from or connected with any
claims or suits by Owner's leasing broker for commissions, finders fees, or like
compensation made or brought pursuant to this Agreement
3.5 Outside Brokers. Owner shall not pay outside brokerage fees, other than
fees specified in Section 3.4. Accordingly, with exception of the fees specified in Section
3.4, Contractor shall indemnify, save and hold Owner harmless from and against any
and all losses, damages, claims costs and expenses (including attorney's fees and
costs) in any way resulting from or connected with any claims or suits against Owner for
a broker's or salesman's commission, finder's fee or other like compensation, made or
brought by any person or entity.
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3.6 Direct Negotiations. Owner may, if it deems necessary, enter into
negotiations directly with any prospective tenants, provided, however, that such direct
negotiations by Owner shall not affect the amount of any commissions that the entering
into such direct negotiations by Owner shall not affect the terms and conditions of this
Agreement with regard to whether or when a commission is deemed to be earned.
4. Approval of Contracts. Contractor shall not execute or otherwise enter
into or bind Owner with respect to any contract or agreement without the prior written
approval of Owner. Contractor shall terminate any such contract within fifteen (15) days
after notice from Owner that such contract is not satisfactory to Owner. Additionally, no
contract with shall be made and entered into that exceeds the term of this Agreement,
as provided for in Section 9.1, unless otherwise approved in writing by Owner prior to
commencement of the term of such contract.
5. Compensation for Management Services. Owner shall compensate
Contractor for the management services rendered herein, with an annual "Management
Fee" equal to Twe_n_ty Seven Thousand One Hundred and 00/100 ($27,100),
representing Four (4) Percent of estimated Gross Annual Lease Revenues in FY
2006/07. Upon the commencement date of this Agreement, parties agree that such Fee
has been estimated at Two Thousand Two Hundred Fifty Eight and 00/100 ($2,258)
per month, which term is defined as follows:
all wages, salaries and compensation of personnel employed by
Contractor as specified in Section 2.4H entitled "Personnel"; and
all expenses incurred by Contractor which are not reimbursable
hereunder.
Following the first year and for each year thereafter, throughout the term of the
Agreement, the Management Fee shall be calculated on the basis of the estimated
Gross Annual Lease Revenues for the next fiscal year and agreed upon between the
parties prior to commencement of the next fiscal year.
6. Construction Services. Contractor shall not provide direct construction
services to tenants, other than those services that are normally provided in connection
with the operation of similar retail buildings and specifically provided in South Florida to
tenants of like premises, including but not limited to, the coordination of utility, fire
protection, and life safety services to other tenants, at the time that tenant build-out
improvements are performed, without additional charge.
7. Accounting, Records, Reports.
7.1 Records. Contractor shall maintain a comprehensive system of office
records, books and accounts, which shall belong to Owner. Owner and others
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designated by Owner shall have at all times access to such records, accounts and
books and to all vouchers, files and all other material pertaining to the Project and this
Agreement, all of which Contractor agrees to keep safe, available and separate from
any records not having to do with the Project. Upon execution of this Agreement all
records, budgets, plans and reports hereunder shall comply with the requirements
described herein.
7.2 Monthly Reports. On or before the 15th day of each month during the
term of this Agreement, Contractor shall provide Owner with a monthly status report,
reflecting monthly rent collections by Tenant, a detail breakdown of reimbursable
operating expenses, including back-up documentation and receipts, and a calculation of
the monthly management fee, as provided for in Section 5 of this Agreement. The
monthly status report should also contain a brief narrative description, describing any
significant event in the areas of leasing, physical plant management and administrative
management concerning the property operations. Contractor shall also prepare and
deliver to Owner any other statements for the Project reasonably requested by Owner
from time to time.
7.3 Annual Financial Statements. At the request of Owner, Contractor shall
prepare and deliver to Owner annual financial statements within thirty (30) days after
the end of each fiscal year which shall contain a balance sheet as of the end of the
fiscal year, statement of profit and loss and a statement of changes in financial position
for the fiscal year then ended. Such financial statements shall be prepared on the
modified cash basis and on the accrual basis in accordance with generally accepted
accounting principals and shall include a reconciliation of the modified cash basis with
the accrual basis. Contractor will cooperate with and give reasonable assistance to any
independent public accountant retained by Owner to examine such statements or other
records pertaining to the Project.
7.4 Annual Budgets. No later than July 1st of each year or such other date
specified in a written notice from Owner to Contractor, Contractor shall prepare and
deliver to Owner, for Owner's approval, a proposed operating budget and a capital
improvement budget for the next calendar year. The operating budget shall set forth the
projected income and receipts from the Project for such fiscal year on an accrual basis
and in reasonable detail and the operating expenses to be incurred during such year,
such operating budget to be set forth on an accrual basis and in reasonable detail with
each category of expense listed on a separate line.
7.5 Audit Provisions. Contractor shall, in accordance with good accounting
practice in such form as the Owner shall require, keep such books of account and
records as will accurately and completely reflect all business done at, and all income
received and expenses and disbursements incurred in connection with the operation o
and maintenance of the Project. All such books, records and reports shall be maintained
at Contractor's office in the City of Miami Beach, Florida and shall be available for
inspection, audit, and copying by duly authorized representatives of the Owner upon
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request. Owner shall keep and preserve all such and records for a period of not less
than five years, and shall not destroy or remove same without prior written notice and
tight to take possession thereof.
8. Operating Expenses.
8.1 Expenses of Owner. All obligations or expenses incurred hereunder shall
be for the account of, on behalf of, and at the expense of Owner, except as otherwise
specifically provided in this Agreement; provided, however, that Owner shall not be
obligated to reimburse Contractor for any expenses for office equipment or office
supplies of Contractor; for any overhead expenses of Contractor incurred in its general
offices, except as provided in Section 8.2; or for any expenses incurred where the prior
written consent, approval, or authorization of Owner was required, and was not
obtained.
8.2 Reimbursements of Expenses. No amounts, other than those pre-
approved in writing by the Owner, and included in the Approved Budget prepared in
accordance with Section 7.4 hereof, a shall be reimbursed or advanced to the
Contractor. The following out-of pocket costs and expenses reasonably and properly
incurred by the Contractor in the performance of its obligation hereunder, in amounts
not to exceed those approved by Owner in each Approved Budget prepared pursuant to
Section 7.4, and properly documented, shall be reimbursed to Contractor as provided
below in Section 8.3:
A. "Administrative Expenses", which term shall be limited to the cost of
stationary and paper, media reproductions, postage, and land line telephone charges
associated with the Project. This term shall not include cellular telephone base service,
vehicle fuel or mileage charges or other costs associated with travel. All expenses
associated to leasing advertisement and promotion of the premises shall have prior
written approval of Owner.
B. "Contractual Services", which term shall mean the reasonable and
necessary contractual services required to maintain and/or administer the Project;
C. "Operating Supplies", which term shall mean the reasonable and
necessary cost for cleaning materials, lights bulbs and other consumable and
expendable items required in the facility maintenance for the Project;
D. "Repair and Maintenance", which term shall mean the reasonable
and necessary expenses for the upkeep and maintenance of the Project. This term shall
not include structural repairs, which will be performed by the Owner.
E. "Other Operating Expenses", which term shall mean such other
reasonable and necessary costs and expense set forth in the Approved Budget for
items necessary to the operation of the Project.
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8.3 Reimbursement Procedure Contractor shall submit with each Monthly
Report, described in Section 7.2, invoices detailing eligible reimbursable expenses
described above in 8.2 ,proof of payment for said expenses, such as returned check or
credit card receipts, and a cover page organizing, in a manner following good
accounting practice, the reimbursement request.
9. Term and Termination.
9.1 Term. This Agreement is for an initial term of approximately three (3)
years. The term of this Agreement shall commence on May 1, 2007, and terminate on
April 30, 2010, or unless sooner terminated as provided herein. At Owner's sole optional
discretion, this Agreement may be renewed for an additional three (3) year term, upon
the same terms and conditions, upon thirty (30) days notice to Contractor, prior to the
expiration of the initial Term.
9.2 Termination by Owner. Owner may, at all times during the term of this
Agreement and any extension thereof, terminate this Agreement in the event that:
In Owner's sole and final opinion, Contractor has mismanaged the
Project and not properly performed its duties relative to the
management, operation, maintenance or servicing of the Project,
or has otherwise defaulted in the performance of its obligations
hereunder; or
ii. A receiver, liquidator or trustee of Contractor shall be appointed by
court order, or a petition to liquidate or reorganize Contractor under
any bankruptcy, reorganization or insolvency law, and such order or
petition is not vacated or dismissed within 60 days, or Contractor
shall file a petition in bankruptcy or request reorganization under
any provision of the bankruptcy, reorganization or insolvency laws,
or if Contractor shall make an assignment for the benefit of its
creditors, or if Contractor is adjudicated a bankrupt; or
iii. The present management of Contractor, or of leasing broker, as set
forth in Section 3.1, materially changes by reason of the acquisition
or merger of Contractor by or with any other entity or otherwise; or
iv. There is damage or destruction to the Retail Space and Owner
decides not to rebuild or restore the Retail Space, or there is a
taking by condemnation, or similar proceedings, of a substantial
portion of the Project; or Owner shall at any time sell or otherwise
transfer ownership of the Project.
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Any such termination shall be effective thirty (30) days prior receipt of a written notice of
termination given by Owner to Contractor, or thereafter upon such other date as
specified by Owner in such written notice.
9.3 Termination for Convenience of Either Party. After the first twelve (12)
months of the initial term of this Agreement, either party hereto may terminate this
Agreement, without cause and for convenience at any time upon at least thirty (30) days
prior written notice to the other party. Notwithstanding the preceding sentence,
Contractor may terminate this Agreement without cause at any time during the first
twelve (12) months of this Agreement upon at least ninety (90) days prior written notice
to Owner and Owner may terminate this Agreement without cause at any time during
the first twelve (12) months of this Agreement upon at least ninety (90) days written
notice to Contractor.
9.4 Contractor's Rights and Obligations after Termination. Upon any
termination, the obligations of the parties hereto (except those pursuant to the Section
hereof entitled "Indemnities by Contractor") including Owner's obligations to pay any
fees or commissions to Contractor hereunder, shall cease as of the date specified in the
notice of termination, except that Contractor shall comply with the applicable provisions
of this Subsection and shall be entitled to receive any and all compensation which may
be due Contractor hereunder at the time of such termination, including but not limited to
all management fees up to the date of termination and all leasing commissions for
leases signed prior to the termination date. Upon the termination of this Agreement as
provided above, Contractor shall:
Deliver to Owner, or such other person or persons designated by
Owner, copies of all books and records of the Retail Space and all
funds in the possession of Contractor belonging to Owner or
received by Contractor pursuant to the terms of this Agreement or
of any of the Basic Documents; and
Assign, transfer or convey to such person or persons all service
contracts and personal property relating to or used in the operation
and maintenance of the Retail Space, except any personal property
which was paid for and is owned by Contractor. Contractor shall at
its cost and expense, remove all signs that it may have placed at
the Retail Space indicating that it is manager of same and replace
and restore any damage resulting there from. Contractor shall also,
for a period of 90 days after such termination, make itself available
to consult with artd advise Owner or such other person or persons
regarding the operation and maintenance of the Retail Space.
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10. Indemnification. In addition to the indemnifications provided in Sections
3.4 and 3.5, and in consideration of a separate and specific consideration of $10.00 and
other good and valuable consideration the receipt of which is hereby acknowledged, the
Contractor hereby agrees to indemnify, defend and hold the Owner and its employees,
agents and authorized representatives harmless with respect to any and all costs ,
claims, damages, and liability which may arise out of the performance of this Agreement
as a result of any negligent acts, errors or omission of the Contractor, or the
Contractor's sub-contractors, including but not limited to leasing broker, as set forth in
Section 3.1, or any other person or entity under the direction or control of the
Contractor. The Contractor shall pay all claims and losses arising out of Contractor's or
Contractor's sub-contractors, including but not limited to leasing broker, as set forth in
Section 3.1, or any other person or entity under the direction or control of the
Contractor, negligent acts, errors or omissions and shall defend all suits, in the name of
the Owner, its employees, agents and authorized representatives when applicable,
including appellate proceedings, and shall pay all costs, judgments and attorney's fees
which may issue thereon.
11. Venue. This Agreement shall be enforceable in Miami-Dade County,
Florida, and if legal action is necessary by either party with respect to the enforcement
of any or all terms or conditions herein exclusive venue for the enforcement of same lie
in Miami-Dade County, Florida. By entering into this Agreement, Contractor and Owner
expressly waive any rights either party may have to a trial by jury of any civil litigation
related to, or arising out of this Agreement. Contractor shall further specifically bind any
and all subcontractors, including but not limited to leasing broker, as set forth in Section
3.1, to the provisions of this section.
12. Limitation of Liability. The Owner desires to enter into this Agreement
only if in doing so Owner can place a limit on Owner's liability for any cause of action for
money damages due to an alleged breach by the Owner of this Agreement, so that its
liability for any such breach never exceeds the amount the compensation due
Contractor for Management Services under Section 5 of this Agreement, less any
amounts actually paid to Contractor therein. Contractor hereby expresses its willingness
to enter into this Agreement with Contractor's recovery from the Owner for any damage
action for breach of contract to be limited to a maximum amount of the compensation
due Contractor for Management Services under Section 5 of this Agreement, less any
amounts actually paid to Contractor therein.
13. No Agency. Contractor shall be responsible for all of its employees or
employees of any affiliate, the supervision of all persons performing services in
connection with the performance of all of Owner's obligations relating to the
maintenance and operation of the Project, and for determining the manner and time of
performance of all acts hereunder. Nothing herein contained shall be construed to
establish Contractor or any of its employees as agent or employee of Owner.
14
14. Assignment. Contractor shall not assign this Agreement without prior
written approval of Owner. Contractor shall not replace the leasing broker set forth in
Section 3.1 of this Agreement without prior written consent of Owner. Except as
aforesaid, this Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns.
15. No Waiver. The failure of either party to seek redress for breach or to
insist upon the strict performance of any covenant, agreement, provision or condition of
this Agreement shall not constitute a waiver thereof, and such party shall have all
remedies provided herein and by applicable law with respect to any subsequent act
which would have originally constituted a breach.
16. Notices Unless otherwise specifically provided, all notices, demands,
statements and communications required hereunder shall be in writing and shall be sent
by registered or certified mail, if intended for Owner, addressed to Owner.
Miami Beach Redevelopment Agency
Attn: Executive Director
1700 Convention Center Drive -Third Floor
Miami Beach, Florida 33139
With a copy to:
City of Miami Beach
Attn: Office of the City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
and if intended for Contractor, addressed to:
Miami Beach Community Development Corporation
Attn: Mr. Roberto Datorre, President
945 Pennsylvania Avenue
Miami Beach, Florida 33139
or to such other address as shall from time to time have been designated by written
notice by either party to the other party as herein provided.
17. Captions. The captions of this Agreement are inserted only for the
purpose of convenient reference and do not define, limit, or prescribe the scope of intent
of this Agreement or any part hereof.
15
18. Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of Florida.
19. Entire Agreement. This Agreement embodies the entire understanding of
the parties and there are no further agreements or understandings, written or oral, in
effect between the parties relating to the subject matter hereof. This Agreement shall
not be recorded or filed in any public records and if so filed or recorded shall be null and
void at the election of the party which did not cause such filing or recording.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written.
OWNER/ MIAMt"BEACH REDEVELOPMENT AGENCY
A
ermer Chairman
3
By: ~.~~,~ -~
Robert Parcher Secretary
CONTRACTOR: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION
ATTEST:
By: By:
Roberto Da rre, President
Agreed to and approved by rFeteps~#e++a- Koniver Stern Re~##y Group (FKS) as to
those terms and conditions in the Agreement pertaining to and creating
obligations between Owner and FKS, as Owner's exclusive leasing broker
pursuant to Section 3.1 of the Agreement:
ATTEST:
By:
ecreta
gy: ---
. Stern, President
Koniver Stern Group, Inc.
APPROVED AS TO
FORM ~ LANGUAGE
8a F EXECUTION
16 ti,~-~' ~1',,
I ,~ ~ a o'1
1.. ve meth Agency Date " ` r-~
Counsel ~~
CONTRACTOR: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION
Date: ~~2z !~
By:
Roberto r esident
STATE OF ~"1 on d0.
COUNTY OF ~'lirr~ml -~~~
ON THIS `a~^'~ day of 4~~ , 2007, before me, the undersigned notary
public personally appeared Roberto Datorre known personally to me to be the
President of MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, and
that he, as such officer, being authorized so to do, executed the foregoing instrument for
the purposes therein contained.
IN WITNESS. V~(HEREOF, I have hereunto set my hand and official seal.
~" I
dY ~,RY ery~ i Pineoa
a4 ~~~ ~ My Commission DD285722
'~, A,wdA Expires February Q,~;2008
~' or ,~o
NOTARY PU IC, State of at Large
My Commission Expires:
CONTRACTOR: . ___.__. _... KONIVER STERN ~ n~v~ ~~"~'
Date: ~ 1 t t 1 Z~`1
By:
,-
Lyle rn, President
STATE OF `~lp~ ~ t:1Cx.
COUNTY OF ~ i rzmi7cE~t~
ON THIS i1 `= day of ~~- , 2007, before me, the undersigned notary
public personally appeared Lyle B. Stern known personally to me to be the President of
,.7t,~.~
~~' ~".T."_ KONIVER STERN and that he, as such officer, being authorized so to
do, executed the foregoing instrument for the purposes therein contained.
IN WITNESS WH REOF, I have hereunto set my hand and official seal.
NOTA Y PUBLIC, State of at Large
My Commission
rot~YP~°&^~ib1 RIA JAKONIUK
T !f"1~. MY COMMISSION # DD372103
EXHIBITS:
Exhibit "A": Legal Description
Exhibit "B": Scope of Work
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 8, 9, 10, 11, 12 and 13, Block 57, Fisher's First Subdivision of Alton Beach,
according to the Plat thereof, as recorded in Plat Book 2, Page 77 of the Public Records
of Dade County, Florida, together with all of 16th Street (Avenue "C"), less and except
the following described parcel:
BEGINNING at the Southwest corner of Block 54 of said Fisher's First Subdivision of
Alton Beach Plat; thence North 88° 0' 53" East along the South line of said Block 54, a
distance of 443.08 feet, to the Southeast corner of said Block 54; thence South 07° 35'
04" West, a distance of 96.26 feet, to a point of cusp with a tangent curve concave to
the Southwest; thence along the arc of said curve to the left, having a radius of 25.00
feet and a central angel of 90° 00' 00", an arc distance of 39.27 feet, to a point of
tangency; thence North 82° 24' S2" West, a distance of 24.75 feet; thence South 88° 00'
53" West along a line 8.00 feet North of and parallel with, as measured at right angles to
the North line of Block 57 of said plat, a distance of 382.18 feet to a point on the
Easterly Right-of-Way line of Washington Avenue; thence North 01 ° 59' 11" West along
said Easterly Right-of-Way line, a distance of 62.00 feet to the Southwest corner of said
Block 54 and the Point of beginning.
Said lands lying and being in the City of Miami Beach and containing 65,910 square feet
(1.5131 Acres) more or less.
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EXHIBIT "B"
SCOPE OF WORK
The proposed scope of services shall include but not be limited to the following:
Procuring and negotiating leases for available space as well as for
space that becomes available upon expiration and/or termination of
exiting leases;
ii. Collecting and remitting lease revenues;
iii. Providing a means of communication for retail tenants to address
and/or resolve matters pertaining to their respective leases, such
as, but not limited to, maintenance or repair concerns;
iv. Providing timely response to tenant issues and concerns;
v. Conducting daily on-site inspections to ensure that tenant spaces
and common area spaces are maintained o a standard consistent
with a first class retail center;
vi. Coordinating with the City's Property Management Division on
maintenance issues affecting the facility;
vii. Communicating and coordinating with tenants to secure their
respective spaces, in the event of a hurricane and/or any other
citywide emergency;
viii. Coordinating and facilitating any tenant improvements involving
new and/or existing leases;
ix. Coordinating marketing and advertising efforts;
x. Maintaining a system of accounting, bookkeeping and reporting that
will accurately reflect all income received and disbursements made
in connection with the operation and maintenance of the Anchor
Shops.
xi. Affecting a good neighbor policy through involvement and
coordination with local area residents, businesses and business
organizations.
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