1A-Joint Execute Third Amendment To Lease Agreement w- Penn 17 LLCCOMMISSION ITEM SUMMARY
Condensed Title:
A Resolution approving and authorizing the Mayor and City Clerk to execute a Third Amendment to that certain Retail Lease
Agreement by and between the City of Miami Beach, the Miami Beach Redevelopment Agency (Collectively, Lessor), and
Penn 17, LLC (Lessee), dated September 16, 2011, involving the lease of approximately 7,655 square feet of ground floor
retail space at the Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida; and, further approving,
following a duly noticed Public Hearing as required by Section 142-362 of the City of Miami Beach Code, an entertainment
component, which will be added as an additional use of the Leased Premises in conjunction with Tenant's re-opening and re-
brandinq of such Premises.
Key Intended Outcome Supported:
Improve the City's Overall Financial Health and Maintain Overall Bond Rating
Supporting Data (Surveys, Environmental Scan, etc.):
Issue:
1 Shall the City Commission authorize the Administration to finalize for execution Amendment No. 3 to the Lease Agreement?
Item Summary/Recommendation:
The Administration recommends that this item be opened and continued if, by May 3, 2013, a signed General Release is
received by the City. Alternatively, the Administration requests authority to terminate the Lease Agreement.
The Tenant requested rent relief in connection with operational complications resulting from the alleged failure of its air
conditioning system. On December 20, 2012, and January 24, 2013, the Finance & Citywide Projects Committee (FCWPC)
considered proposed terms and conditions for restructuring the Tenant's rent payments. The FCWPC expressed support for
providing some level of relief to the Tenant, but not at the risk of turning the City's position upside down and subject to the
inclusion of specific release language absolving the City of any liability regarding Tenant's cost overruns and claims related to
loss of business. The FCWPC further recommended in favor of modifying the Lessee's rent schedule. Subsequently, the
Tenant provided a preliminary business plan which proposes that the restaurant, when re-opened by July 2013, will house
three individual concepts: an anchor restaurant facing 1 ih Street, involving the Tenant's relocation of its Bond Street
Restaurant; a celebrity chef late-night fast casual eatery in the center section of the space, and a lounge/bar in the existing bar
area (Lounge Bar). On March 13, 2013, the Mayor and City Commission, in conjunction with the RDA, passed and adopted
resolutions accepting the FCWPC recommendation pertaining to a proposed Amendment No. 3 to the Lease incorporating a
revised rent schedule. Since the new business concept contemplates including entertainment, which is not a permitted use in
the CCC civic and convention center district, the Commission and RDA further ratified the setting of a public hearing, as
required under Section 142-362 of the City Code to approve such use. The public hearing was scheduled for April17, 2013,
and was opened and continued in light of pending matters.
The Tenant has requested a continuance of the advertised May 8, 2013, public hearing but is willing to proceed with
Amendment No. 3 to the Lease. However, the Administration does not recommend proceeding with Amendment No. 3 due to
continuing unresolved issues outlined in the May 8, 2013, Commission Memorandum. The Administration is agreeable,
contingent upon receipt of an executed General Release by May 3, 2013, to open and continue the matter of the entertainment
use and the matter of Amendment No. 3 to the Lease Agreement, a draft of which is attached to the Commission
Memorandum as Exhibit "1."
Alternatively, if the General Release is not received by May 3, 2013, then the Administration recommends that the Commission
authorize the City Manager to proceed to place Tenant in default, terminate the Lease, and take any and all other related
actions.
Advisory Board Recommendation:
I Finance & Citywide Projects Committe~ recommended approval of revised rent schedule on January 24, 2013 ~
Financial Information: Sourceof Fund_s_:--~--1--~----A-m_o_u_n_t----~------------------A~cc_o_u_n_t----------------~--~
Financial Impact Summary: ~ -· .
City Clerk's Office Le_,g.._i_s_la_ti_v_e_T_r_ac_k_i_n...._g_: _____________ ---------·-~
1 Anna Parekh, ext. 647{ i
Sign-Offs:
tor
MlAMIBEACH
663
CityM
JLM
AGENDA ITEM __ / ~A-'--_
DATE 5-'/-/3
~ MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, wvvw miomibeachA.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Me
FROM: Jimmy L. Morales, City Manager
DATE: May 8, 2013 OPEN AND CONTINUE
SUBJECT: A RESOLUTION OF THE MAY AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPR VING AND AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AMENDMENT NO. 3 TO THAT CERTAIN RETAIL
LEASE AGREEMENT BY AND BETWEEN THE CITY OF MIAMI BEACH, THE
MIAMI BEACH REDEVELOPMENT AGENCY (COLLECTIVELY, LESSOR), AND
PENN 17, LLC (LESSEE), DATED SEPTEMBER 16, 2011, INVOLVING THE LEASE
OF APPROXIMATELY 7,655 SQUARE FEET OF GROUND FLOOR RETAIL SPACE
AT THE PENNSYLVANIA AVENUE GARAGE, 1661 PENNSYLVANIA AVENUE,
MIAMI BEACH, FLORIDA; AND FURTHER APPROVING, FOLLOWING A DULY
NOTICED PUBLIC HEARING AS REQUIRED BY SECTION 142~362 OF THE CITY
OF MIAMI BEACH CODE, AN ENTERTAINMENT COMPONENT, WHICH WILL BE
ADDED AS AN ADDITIONAL USE OF THE LEASED PREMISES IN CONJUNCTION
WITH TENANT'S RE-OPENING AND RE-BRANDING OF SUCH PREMISES.
ADMINISTRATION RECOMMENDATION
The Administration recommends that this item be opened and continued if, by May 3, 2013, a
signed General Release is received by the City from the Lessee, Penn17, LLC. Alternatively, if
the signed General Release is not received by the City by May 3, 2013, the Administration
requests authority to terminate the Lease Agreement.
BACKGROUND
On April 13, 2011, the Mayor and City Commission approved a Lease Agreement (which was
subsequently amended on February 8, 2012, and again on June 6, 2012), having a term of nine
(9) years and 364 days, between the City, the RDA (collectively, the Lessor or Landlord) and
Penn 17, LLC. (Lessee or Tenant), for use of approximately 7,655 square feet of ground level
retail space at the Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami Beach,
Florida (Premises), for a restaurant (primary use), with ancillary uses for a bakery, a bar/cafe,
and a book and gift shop (the initial lease and all amendments thereto are hereinafter referred to
as the Lease). The Tenant opened Cooper Avenue Restaurant on the Premises on September
24, 2012. After putting the Tenant on notice of certain compliance-related issues, including non-
payment of rent, the City received a letter in response to its November 15, 2012 letter from
Tenant's legal counsel requesting rent relief in connection with operational complications
resulting from the failure of the air conditioning system on the Premises. The Tenant alleged
that the current location of the air conditioning compressors, located between the first and
second floor of the garage alongside the entrance ramp, was inadequate to support the size
units required to cool a restaurant operation of the scale involved in Cooper Avenue. As a
solution, Tenant requested permission to relocate all eight compressors to the roof of the
664
City Commission Memorandum
Penn 17, LLC-Retail Lease Amended Rent Schedule
May 8, 2013
Page 2 of 5
garage, (which relocation, if accomplished, will occupy five roof~top parking spaces).
On December 12, 2012, the City Commission referred the Tenant's request for rent relief to the
City's Finance and Citywide Projects Committee (FCWPC) for discussion, subject to the Tenant
remitting all outstanding rent amounts due for October, November and December. Subsequent
to the City Commission meeting, the Tenant informed staff that it wasn't in a position to remit
rent for the three-month period, and instead remitted a wire transfer for the October, 2012 rent.
On December 17, 2012, the Tenant informed staff that it had closed Cooper Avenue
Restaurant, with the intent of re-opening in February 2013 under a new name and concept.
The Administration requested review of the matter by the FCWPC at its December 2012
meeting, at which Tenant presented its request to reduce its rent payments by 50% over the
next twelve (12) months; apply two months of the three-month security deposit it had paid at
Lease execution towards the back rent due for November and December's rent; and have the
City share in the cost of relocating the compressors to the roof of the garage, the cost of which
was estimated to be approximately $65,000. The Tenant also indicated that it would prefer to
address the relocation of the compressors as well as the kitchen exhaust venting (as was
requested by the New World Symphony) at the same time and under one engineering contract.
As has been outlined in the Commission Memorandums dated March 13, 2013 and April 17,
2013, in December 2012, the FCWPC was in favor of entertaining a deferral of the Tenant's
rent, but for a period of less than twelve months and directed staff to negotiate terms for a rent
deferral to present to the City Commission, and to also incorporate release language absolving
the City of any liability with regards to any claims made by the Tenant concerning construction
delays and/or issues concerning the relocation of the HVAC compressors, as well as the
kitchen exhaust venting. The FCWPC also recommended holding off on taking further legal
action, which would include formally putting Tenant on notice of default, pending the outcome of
negotiations. The Tenant was also asked to provide an estimated time frame for re-opening the
restaurant.
On January 24, 2013, FCWPC recommended in favor of the following renegotiated terms, as
proposed by staff:
1) applying one~third (1 /3) of the Lessee's existing security deposit, representing
$47,844, towards Base Rent owed for the month of November, 2012;
2) deferring $8,474 for Common Area Maintenance (CAM) for November, 2012, and
Base Rent plus CAM for December 2012, leaving a balance in the total amount of
$64,791 (Back-Due Rent) to be repaid in twelve (12) equal monthly installments
commencing in January 2014 and ending in December 2014;
3) granting an abatement of 50% of the Base Rent and Common Area Maintenance
(CAM) due for the six (6) month period commencing January 13, 2013 through July 12,
2013;
4) granting a deferral of fifty percent (50%) of the Base Rent and CAM for the six (6)
month period, commencing July 13, 2013 through January 14, 2014 ("Deferral
Period"), to be repaid by the Tenant in twenty four (24) equal monthly installments,
commencing in the sixth year of the Lease Term and ending on the last day of the
seventh year of the Lease Term;
5) Reimbursement of the security deposit amount applied to back rent in the amount of
$47,844, to be repaid in twelve (12) equal monthly installments commencing in the fifth
year of the Lease Term and ending on the last day of the fifth year of the Lease Term.
A schedule reflecting the revised rent schedule, as recommended by FCWPC, is included as
665
City Commission Memorandum
Penn 17, LLC-Retail Lease Amended Rent Schedule
May 8, 2013
Page 3 of 5
Exhibit "A" to this memorandum. To date, Tenant has paid 50% of the January, February,
March, and April2013 Base Rent and CAM.
In January, the FCWPC again requested that any agreement with the Tenant be subject to the
inclusion of release language absolving the City of any liability. As requested by Commissioner
Libbin during the January 24, 2013 FCWPC meeting, Tenant provided the Administration with
its preliminary business plan for re-opening the Leased Premises, which Tenant anticipates re-
opening by July 2013. The Premises will house three individual concepts: an anchor restaurant
facing 17 1" Street, involving the Tenant's relocation of its Bond Street Restaurant; a celebrity
chef late~night fast casual eatery in the center section of the space; and a lounge/bar in the
existing bar area. Since the lounge/bar component proposes an entertainment use
(combination of a deejay and live music), which is not a main permitted use in the Civic and
Convention Center (CCC) zoning district, a public hearing is required under Section 142-362 of
the City Code to approve such use.
On March 13, 2013, the Mayor and Commission adopted Resolution 2013-28167 in conjunction
with the Redevelopment Agency's (RDA) Resolution 592-2013, which accepted the FCWPC
recommendation pertaining to a proposed Amendment No. 3 to the Lease, and recommending
that, as part of said amendment, the rent schedule be revised as outlined above and as further
illustrated on Exhibit "A" to the memorandum. The Commission and RDA also set a public
hearing for April 17, 2013, regarding Lessee's proposal to add an entertainment component as
an additional use.
During the March 13 1h discussion, the City Commission requested that Amendment No. 3 also
include a genera! release by Tenant waiving any claims against the City including those with
regards to the ventilation and to the relocation of air conditioning; an additional clause that
Tenant admits and acknowledges that, but for approval of Amendment No. 3, it is in default of
the Lease; additional language regarding an "expedited" eviction procedure and, to the extent
possible, to include certain waivers of defenses by Tenant. The Tenant was also requested to
provide a release in conjunction with the City's preliminary approval of the proposed revised rent
schedule. The Administration prepared an agenda item for the City Commission's consideration
at its April17, 2013 meeting.
However, by April17, 2013, the Tenant had not been able to solidify its concept plan or provide
a site plan as requested by staff in time to submit the necessary information for Commission
consideration at the scheduled public hearing regarding the entertainment use. The Tenant had
also expressed concerns with the Planning Department requirement to install a vestibule area
within the Premises in consideration of the new entertainment component. The Tenant
expressed that the vestibule poses a significant hardship and also informed staff that it may
reconsider the concept. Notwithstanding, the Tenant had already met with representatives of
the New World Symphony (NWS) and provided us with a confirmation letter from NWS dated
March 18, 2013, stating that " ... in the expectation of future on~going mutual cooperation
between your operating staff and NWS to ensure that your activities do not adversely affect
NWS events and Wallcasts, NWS has no issues with respect to the entertainment license ... "
In the meantime, additional non~compliance items were pending. Several construction-cost
related items had been addressed in a Notice of Non~Compliance letter dated and sent to the
Tenant on March 27, 2013, outlining deficiencies in the Tenant's Construction Fund, as required
by the Lease and matters relating to construction claim notices. The Tenant was given until
Tuesday, April 2, 2013, to provide specific information and cure measures, and staff informed
Tenant that failure to do so may result in the Tenant being placed in default. Subsequently, but
666
City Commission Memorandum
Penn 17, LLC-Retail Lease Amended Rent Schedule
May 8, 2013
Page 4 of 5
on the same date (March 2th), the City and RDA were served with a Complaint from A.R.T
Drywall South, Inc.; one of Tenant's sub-contractors demanding payment from the City in the
amount of $52,7 40, for work performed by the Subcontractor on the Leased Premises. The
Tenant's lack of progress in obtaining a building permit to relocate the air conditioning
compressors was another pending matter, however, the Tenant maintained that it had not
moved forward and paid the building permit fee because the Tenant was requesting that the
relocation of the air conditioning units be coordinated in conjunction with the reconfiguration and
relocation of the kitchen exhaust.
Prior to the April 1 th Commission meeting, the Tenant verbally informed staff that it did not
anticipate being able to remedy the outstanding construction claims by April 2nd or by April 1 th
but it nonetheless wished to proceed with Amendment No. 3 to the Lease. Staff reiterated that
any further action is contingent on the resolution of outstanding contractual issues.
On April 17, 2013, the Administration recommended that the item be opened and continued in
light of matters that remained pending.
ANALYSIS
In preparation of the May 8, 2013 Commission meeting, on April 26, 2013, the Administration
sent the Tenant a letter regarding the still-pending outstanding issues, a copy of which is
attached as Exhibit "8" to this memorandum. To summarize, the outstanding issues outlined in
the letter, as well as the status of the issues as of May 1, 2013, are as follows:
1. The City required a recorded copy of an Order by the Court, dismissing with prejudice ART
Drywall's lawsuit against the City.
STATUS: A Stipulation for Entry of Final Order of Dismissal with Prejudice was fully executed
by the parties on April29, 2013, and is attached as Exhibit "C."
2. One deficiency in Tenant's Construction Fund is the Tenant's failure to appropriately expend
a minimum of $1 million in tenant improvements through the escrow account.
STATUS: The City has received copies of cashed checks evidencing expenditures by the
Tenant from two different accounts in excess of $1 million. A Tenant Construction Fund
Reconciliation chart is attached hereto as Exhibit "D."
3. Another deficiency in Tenant's Construction Fund is the Tenant's failure to maintain at least
$50,000 in the escrow account until such time that Tenant's work has been substantially
completed, as determined by the Landlord. In the absence of a final Certificate of Occupancy,
the City required the Tenant to replenish $50,000 in the escrow account.
STATUS: The Tenant has delivered a $50,000 check to the escrow agent, a copy of which is
attached hereto as Exhibit "E."
4. Two additional claim notices were received by the City from: Cors-Air in the amount of
$3,001.92; and from MP Firestop Corp. in the amount of $7,900.
STATUS: The MP Firestop Corp. claim for $7,900 was satisfied and the City Attorney's Office
has accepted the contractor's Notice of Satisfaction and Accord and Waiver of Claims against
Penn 17, LLC, which is attached hereto as Exhibit "F." Tenant has expressed that the
$3,009.92 claim has been paid and that the Tenant is in the process of obtaining a signed
release.
667
City Commission Memorandum
Penn 17, LLC -Retail Lease Amended Rent Schedule
May 8, 2013
Page5of5
5. A General Release has been required in which Tenant waives any and all claims against the
City.
STATUS: The Tenant has agreed to sign the release, which is attached hereto as Exhibit "G."
The deadline for receipt of the signed release is Friday, May 3, 2013. If the release has not
been received by the close of business on May 3, 2013, the Administration will recommend
termination of the Lease.
6. The Planning Department recommended certain conditions regarding the entertainment
component, including the creation of a double door vestibule at the main entrance. Accordingly,
staff requested that the Tenant produce site plans of the space, incorporating the Planning
Department's recommendations.
STATUS: Site Plans have not been provided to staff and a final determination has not been
made regarding the vestibule issue.
In addition to providing the updated items noted above, the Tenant requested a continuance of
the public hearing but is willing to proceed with Amendment No. 3 to the Lease. Further, on
April 30, 2013, the City received a copy of a Claim of Lien recorded on behalf of A & P Air
Conditioning Corporation regarding an outstanding $73,693 plus interest (A & P Claim). A copy
of the A & P Claim of Lien is attached hereto as Exhibit "H." The Tenant informed staff that
additional time is necessary to remedy the A & P Claim.
On May 1st. 2013, the Administration notified the Tenant that a recommendation to open and
continue the item to June, 2013 would be contingent on the delivery of the signed General
Release by the Tenant by May 3rd, 2013.
CONCLUSION AND RECOMMENDATION
The Administration is agreeable, contingent upon receipt of an executed General Release by
May 3, 2013, to open and continue the matter of the entertainment use and the matter of
Amendment No. 3 to the Lease Agreement, a draft of which is attached hereto as Exhibit "I."
Alternatively, if the General Release is not received by May 3, 2013, then the Administration
recommends that the Commission authorize the City Manager to proceed to place Tenant in
default, terminate the Lease, and take any and all other related actions.
~~~~KOB
T:\AGENDA\2013\May 3\Penn 17 Retail Lease CMB Memo doc
668
669
Exhibit A
Penn 17, LLC
Revised Rent Schedule
NOTES;
[1) Repayment of remaining Nov/Dec 2012 balance ($64791)
121 Repayment of July 4012 Ond August 2012 rent ($95,61l8oo) per
Se~ond t\rnen(jrnent · · · · · · · ·
(3) Repayment of security depo>il ($47,844) ·
(41 Repayment of July2013 through December 2013 deferred rent
($171,106,23) . ·. .
Penn 17, LLC Rent Schedule
lease Commencement: October 13, 2011 Rent Commencement: Aprll14, 2012
Current Proposed
Lease Year: 2 Rent Rent Total Monthly Total Monthly
Base Rent Repayment CAM(*) Abatement Deferment Payment Payment
01/13113 $ 47,843.75 $ $ 8,47 4.00 $ (28, 158.88) $ $ 56,317.75 $ 28.158.87
02/13/13 $ 47,84375 $ $ 8,474.00 $ (28, 158.88) $ $ 56,317.75 $ 28,158.87
03/13/13 $ 47,843.75 $ $ 8,474.00 $ (28, 158.88) $ $ 56,317.75 $ 28.158.87
04/13/13 $ 47,84375 $ $ 8,474.00 $ (28.158.88) $ $ 56,317.75 $ 28,158 87
05/13/13 $ 47,843.75 $ $ 8.474.00 $ (28, 158.88) $ $ 56.317.75 $ 28,158.87
06/13/13 $ 47,843.75 $ $ 8.47400 $ (28, 158.88) $ $ 56,317.75 $ 28,158.87
07/13/13 $ 47,843.75 $ $ 8,47400 $ $ (28, 158 88) $ 56,317.75 $ 28,158.87
08/13/13 $ 47,843.75 $ $ 8.474.00 $ $ 128, 158.88) $ 56.317.75 $ 28.158.87
09/13/13 $ 47,843.75 $ $ 8.47 4.00 $ $ (28. 158.88) $ 56,317.75 $ 28.158.87
Total: $ 430,593.75 s $ 76,266,00 $ (168,953,28) s (84,476.64) $ 506,859.75 s 253,429.83
Current Proposed
Lease Year: 3 Rent Rent Total Monthly Total Monthly
Base Rent Repayment (1 and 2) CAM(*) Abatement Deferment Payment Payment
$ 49,279.06 $ 2.658 00 $ 8.474.00 $ $ (28.87 6.53) $ 60,411.06 $ 31.534.53
11/13/13 $ 49,279.06 $ 2,658.00 $ 8.474.00 $ $ (28.876.53) $ 60.411 06 $ 31.534.53
12/13/13 $ 49,279.06 $ 2.658 00 $ 8,474.00 $ $ (28,876.53) $ 60.411.06 $ 31,534 53
01/13/14 $ 49,279.06 $ 8,057.00 $ 8.474 00 $ $ $ 65,810.06 $ 65.81006
02/13/14 $ 49.27906 $ 8,057.00 $ 8.474.00 $ $ $ 65,810.06 $ 65,810.06
03/13/14 $ 49,279.06 $ 8.05700 $ 8.47 4 00 $ $ .$ 65.810 06 $ 65.810 06
04/13/14 $ 49,279.06 $ 8,057.00 $ 8,474.00 $ $ $ 6.5,810.06 $ 65.810.06
05/13/14 $ 49,279.06 $ 8.057.00 $ 8.474.00 $ $ $ 65.810.06 $ 65,810 06
06/l3/i4 $ 49,279.06 $ 8,057.00 $ 8.474.00 $ $ $ 65,810.06 $ 65,810 06
07/13/14 $ 49,279.06 $ 8.0.57 00 $ 8,474.00 $ $ $ 65.810.06 $ 65.810 06
08/13/i4 $ 49,279,06 $ 8.057 00 $ 8.47 4.00 $ $ $ 65,810.06 $ 65,810.06
09/13/14 $ 49.279.06 $ 8,057.00 $ 8.474.00 $ $ $ 65.810.06 $ 65.810.06
Total: $ 591.348.72 s 80,487,00 $ 101.688.00 s s (86,629,59) $ 773,523.72 $ 686,894.13
Current Proposed
lease Year: 4 Rent Rent Total Monthly Total Monthly
Base Rent Repayment (1 and 2) CAM(*) Abatement Deferment Payment Payment
$ 50,7.57.43 $ 8.057 00 $ 8.474 00 $ $ $ 67,288.43 $ 67.288.43
ll/13/14 $ 50,757.43 $ 8,057.00 $ 8.474.00 $ $ $ 67,288 43 $ 67,288.43
12/13/14 $ 50.757 43 $ 8,057.00 $ 8.474.00 $ $ $ 67,288.43 $ 67,288.43
01/13/15 $ 50,757.43 $ 2.658 00 $ 8.474.00 $ $ $ 61.889.43 $ 61.889.43
02/13/15 $ 50,757.43 $ 2.658.00 $ 8.474.00 $ $ $ 61,889.43 $ 61.889.43
03!13/15 $ 50.757.43 $ 2.658.00 $ 8.474.00 $ $ $ 61.889.43 $ 61.889 43
04/13/15 $ 50.757.43 $ 2,658.00 $ 8.474.00 $ $ $ 61.889.43 $ 61.889.43
05/13(15 $ 50.757.43 $ 2.658 00 $ 8,474.00 $ $ $ 61.889.43 $ 6l,889.43
06/13(15 $ 50,757.43 $ 2,6.58.00 $ 8,474 00 $ $ $ 61.889.43 $ 61.889.43
Ol/i3/l S $ bU.It>I.4J ~ L,6:Jb.UU $ b.4/4.UU ~ ~ $ 61.889.43 $ 61.889.43
08/13/15 $ 50.757.43 $ 2,658.00 $ 8,474.00 $ $ $ 61,889.43 $ 61.889.43
09/13/15 $ 50.757.43 $ 2,658.00 $ 8.474.00 $ $ $ 61,889.43 $ 61,889.43
Total: s 609,089.16 s 48,093,00 s 101.688.00 $ $ $ 758,870.16 $ 758,870,16
Page 1 of 3
670
NOTES;
{11 Repayment ofremaining Nov/Dec ~012 bClt~nce ($64:791)
121 Repayment of July 2012 and Augvst 2012 rent l$95,68.800)per
Sf:condAJ11.enornent . · .. · . . >. · . .. . · ·
{3) Repayment of ;ecurity deposit ($47,844) .
{41 Repayment of July 2013 itirol.{gh D~cember 2013 deferred rer>t
{$17!,106.231 . . . . .
Penn 17, LLC Rent Schedule
lease Commencement: October 13, 2011 Rent Commencement: April14, 2012
Current Proposed
Legse Year: 5 Rent Rent Total Monthly Total Monthly
Bose Rent Repayment (2 and 3) CAM(*) Abatement Deferment Payment Payment
$ 52,280 15 $ 6,645.00 $ 8,474.00 $ $ $ 63.412.15 $ 67.399,15
11/13/15 $ 52,280.15 $ 6,645 00 $ 8.474.00 $ $ $ 63.412.15 $ 67.399.15
12/13/15 $ 52,280.15 $ 6,645.00 $ 8.474.00 $ $ $ 63.412.15 $ 67,39915
01/13/16 $ 52,280.15 $ 6,645.00 $ 8.474.00 $ $ $ 63.412.15 $ 67,399.15
02/13/16 $ 52,280.15 $ 6,645.00 $ 8.474.00 $ $ $ 63.412.15 $ 67.399.15
03/13/16 $ 52.280 15 $ 6.645.00 $ 8.474.00 $ $ $ 63,412.15 $ 67,399.15
04/13/16 $ 52.280 15 $ 6,645.00 $ 8.47 4.00 $ $ $ 63.4 i 2.15 $ 67,399.15
0.5/13/16 $ 52,280.15 $ 6.645.00 $ 8.474.00 $ $ $ 63.412.15 $ 67,399.15
06/13/16 $ 52.280.15 $ 6.645.00 $ 8,474.00 $ $ $ 63.412.15 $ 67.399.15
07/13/16 $ 52,280.15 $ 6.645.00 $ 8.474.00 $ $ $ 63,412.15 $ 67.399.15
08/13/16 $ 52.280 15 $ 6.64.5.00 $ 8.474.00 $ $ $ 63.412.15 $ 67,399.15
09/13/16 $ 52,280.15 $ 6,645.00 $ 8.47 4.00 $ $ $ 63.412.15 $ 67,399.15
Total: $ 627,361.80 $ 79.740.00 s 101,688.00 $ $ $ 760,945.80 $ 808,789.80
Current Proposed
Lease Year: 6 Rent Rent Total Monthly Total Monthly
Base Rent Repayment (4) CAM(*) Abatement Deferment Payment Payment
$ 53.848.56 $ 7.129.43 $ 8,474.00 $ $ $ 62,322 56 $ 69.451.99
11/13/16 $ 53.848.56 $ 7.129.43 $ 8.47 4.00 $ $ $ 62,322.56 $ 69.451.99
12/13/ i 6 $ 53.848.56 $ 7,129.43 $ 8.474.00 $ $ $ 62,322.56 $ 69.451.99
01/13/17 $ 53.848.56 $ 7,129.43 $ 8.474.00 $ $ $ 62.322.56 $ 69.451.99
02/13/17 $ 53.8.l8.56 $ 7,) 29.43 $ 8.474.00 $ $ $ 62.322.56 $ 69,451.99
03/13/17 $ 53,84856 $ 7.129.43 $ 8.474 00 $ $ $ 62.322.56 $ 69,451.99
04/13/17 $ 53.848.56 $ 7,129 43 $ 8.474 00 $ $ $ 62,322 56 $ 69,451.99
05/13/17 $ 53,848.56 $ 7.129.43 $ 8.474.00 $ $ $ 62,322.56 $ 69.451.99
06/13/17 $ 53,848.56 $ 7.129.43 $ 8.474.00 $ $ $ 62,322.56 $ 69.45199
07/13/17 $ 53.848 56 $ 7.129.43 $ 8.474.00 $ $ $ 62,322.56 $ 69.451.99
08/13/17 $ 53,848.56 $ 7. i 29.43 $ 8.474.00 $ $ $ 62.322.56 $ 69.45199
09/13117 $ 53.848.56 $ 7.129.43 $ 8.474.00 $ $ $ 62.322.56 $ 69.451.99
Total: s 646,182.72 s 65,553,16 s 101.688.00 s s $ 747.870.72 s 833,423.68
Current Proposed
Lease Yegr: 7 Rent Rent Total Monthly Total Monthly
Base Rent Repayment (4) CAM(*) Abatement Deferment Payment Payment
$ 55.46402 $ 7.12943 $ 8,474.00 $ $ $ 63,938 02 $ 71.067.45
11!13/17 $ 55.464 02 $ 7,129.43 $ 8.47 4 00 $ $ $ 63.938.02 $ 71.06745
12/13/17 $ 55.464.02 $ 7,129.43 $ 8.474.00 $ $ $ 63,938 02 $ 71.067.45
01/13/18 $ 55.464.02 $ 7,129.43 $ 8,474.00 $ $ $ 63.938.02 $ 71,067.45
02/13/18 $ 55.464 02 $ 7,129.43 $ 8.474.00 $ $ $ 63,938.02 $ 71.067.45
03/13/18 $ 55.464.02 $ 7,129.43 $ 8.47 4.00 $ $ $ 63.938.02 $ 71.067.45
04/13/18 $ 55.464.02 ·~ 7.129.43 $ 8.474.00 $ $ $ 63,938.02 $ 7!.067.45
05/13!18 s 55.464.02 s 7,129.43 $ 8.47 4 00 $ $ $ 63,93() 02 $ 71,067 .4.S
06/13/18 $ 55.464 02 $ 7.12943 $ 8,474.00 $ $ $ 63.938 02 $ 71.067.45
07/13/18 $ 55.464.02 $ 7,129.43 $ 8.47 4.00 $ $ $ 63,938.02 $ 7i.067.4.5
08/13/18 $ 55.464.02 $ 7,129.43 $ 8.474 00 $ $ $ 63.938 02 $ 71 ,067.45
09/13/18 $ 55.464.02 $ 7.129.43 $ 8.47 4.00 $ $ $ 63,938.02 $ 71.06745
Total: $ 665,568.24 s 65,553,16 $ 101,688.00 $ $ s 767,256.24 $ 852,809.40
Page 2 of 3
671
·.·.-
(l) Repayment of remaining Nov/Dec 2012 palance {$64,791]
(2) Repayment of Jviy 2012 and August 2012rent {$95,68B.OO} per
econd Amer:Jdment ·· ·· ·
(3) Repayment of security deposit 1$47,844)
(4] Repayment ot July 2013 throcJgh Decernber20139efEmed rent
($17Ll06.23)
Penn 17, LLC Rent Schedule
Lease Commencement: October 13, 2011 Rent Commencement: April14. 2012
Lease Year: S Total Monthly
Base Rent CAM(*) Payment
$ 57,127.94 $ 8,47 4.00 $ 65.601.94
11/13/18 $ 57,127.94 $ 8.47 4.00 $ 65.601.94
12/13/18 $ 57.12794 $ 8,474.00 $ 65.601.94
01/13/19 $ 57,127.94 $ 8,474.00 $ 65,601.94
02/13/19 $ 57,127.94 $ 8,474.00 $ 65.601.94
03/13/19 $ 57,127.94 $ 8.47 4.00 $ 65,601.94
04/13/19 t 57,127.94 $ 8.474.00 $ 65.601.94
05/13/19 $ 57.127.94 $ 8.474 00 $ 65,601.94
06/13/19 $ 57,127.94 $ 8.474.00 $ 65,601.94
07/13/19 $ 57,127.94 $ 8.474 00 $ 65.601.94
08!13/19 $ 57.127.94 $ 8.474.00 $ 65,601.94
09/13/19 $ 57,127.94 $ 8.474.00 $ 65.601.94
Total: s 685,535,28 s 101,688.00 s 787,223.28
lease Year: 9 Total Monthly
Base Rent CAM(*) Payment
$ 58,841.78 $ 8,474.00 $ 67,315.78
11 /13/l $ 58.841.78 $ 8.474.00 $ 67,315.78
12/13/19 $ 58.841.78 $ 8,474.00 $ 67,315.78
01/13/20 $ 58,841.78 $ 8.474.00 $ 67.31578
02/13/20 $ 58.841.78 $ 8.474.00 $ 67.315.78
03/13/20 $ 58.84 i .78 $ 8.474.00 $ 67.315.78
04!13/20 $ 58.841.78 $ 8.474.00 $ 67,315.78
05/13/20 $ 58.84178 $ 8.47 4.00 $ 67.31578
06/13/20 $ 58.841.78 $ 8.47 4.00 $ 67.31578
07/13/20 $ 58.84178 $ 8.47 4 00 $ 67.315.78
08/13/20 $ 58.841.78 $ 8.474.00 $ 67.315.78
09 /i 3/20 $ 58.841.78 $ 8,474.00 $ 67.315.78
Total: $ 706.101.36 s 101,688.00 s 807,789.36
Lease Year: 10 Total Monthly
Base Rent CAM(*) Payment
$ 60.607.03 $ 8.474 00 $ 69,081.03
11 I 13/20 $ 60,607.03 $ 8.474.00 $ 69.081.03
12/13/20 $ 60.607.03 $ 8.474.00 $ 69,081.03
01/13/2! $ 60.60703 $ 8.474 00 $ 69.081.03
02/13/21 $ 60,607.03 $ 8.474 00 $ 69.081.03
03/13/21 $ 60.607.03 $ 8.474.00 $ 69,081.03
04!13/21 $ 60.607.03 $ 8.474.00 $ 69,081.03
05!13/21 $ 60,607.03 $ 8,47 4.00 $ 69.081.03
06/13/21 $ 60.607 0.3 $ 8.474.00 $ 69,08103
07/13/21 $ 60.607.03 $ 8,474.00 $ 69,081.03
08/13/21 $ 60,607.03 $ 8.474 00 $ 69.08103
09/13/21 $ 60.607.03 $ 8.47400 $ 69.081.03
Total: s 727,284.36 s 101,688.00 s 826,972.36
NOTE: CAM (*l -Pursuant to Section 18 of the Lease Summary, the CAM rate is subject to adjustment
to reflect the actual pro-rata share of Property Taxes and Insurance costs incurred by the landlord
during the previous calendar year.
Page 3 of 3
672
673
Exhibit B
Letter to Penn 17, LLC
Dated 04/26/2013
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miomibeachfl.gov
REAL ESTATE, HOUSING & COMMUNITY DEVELOPMENT
Tel: (3051 673-7000-(305) 6731033
BY CERTIFIED MAIL RETURN RECEIPT REQUESTED
April 26, 2013
Amir Ben Zion
Managing Member
Penn 17, LlC
1661 Pennsylvania Avenue, Suite 6
Miami Beach, Fl33139
Copy sent via electronic mail to:
amir.ben-zion@fcsny.com
shai@cooperavenue.com
Re: Lease Agreement (the "Lease") between the City of Miami Beach, Florida, the
Miami Beach Redevelopment Agency (hereinafter collectively referred to as
"Landlord"), and Penn 17, LLC ("Tenant"), involving the lease of approximately
7,655 square feet of ground floor retail space at the Pennsylvania Avenue Garage,
1661 Pennsylvania Avenue, Miami Beach, Florida ("Premises")
Dear Mr. Ben-Zion:
As you may be aware, the Public Hearing that had originally been scheduled before the City
Commission on April 17, 2013, to consider a proposed change of use to the Premises, as well
as to consider the proposed Amendment No. 3 to the lease, was re-scheduled to be heard at
the City Commission meeting on May 8, 2013. This was due to the fact that you were unable to
comply with certain outstanding issues which needed to be resolved prior to the City
Commission's consideration of the aforestated items. As of the date of this letter, these same
issues remain outstanding, as follows:
1. The City requires a recorded copy of an Order by the Court, dismissing with prejudice ART
Drywall's lawsuit against the City.
2. The deficiencies in Tenant's Construction Fund, originally identified in the City's
correspondence, dated March 26, 2013 (a copy of which is attached as Exhibit "A" hereto), still
need to be resolved. Specifically, the City has not yet agreed to accept the copies of
checks/payments made from Tenant's own construction account (provided to us by Tenant's
Escrow Agent in its written response to the City, dated April3, 2013), as satisfying the $1 Million
Tenant Improvement threshold requirement specified in the Work letter and Escrow
Agreement.
3. In the City's same correspondence (referenced in Item 2 above), we informed you that the
Tenant's Construction Fund was not to be reduced to less than $50,000, until such time that
Tenant's work has been substantially completed, as determined by the Landlord, in its sole and
reasonable discretion.
4. Pursuant to the April3, 2013 response from Tenant's Escrow Agent (attached as Exhibit "8"
hereto), the Tenant was to deposit $64,828.92 into the Tenant Construction Fund by April 15,
2013, to cover two (2) outstanding claim notices, as well as the original Notice of lien filed by
ART Drywall, noted as follows:
674
Mr. Amir Ben Zion
April 26, 2013
Page 2 of 3
I Date Contractor/Supplier
I 10/27/11 Cors-Air
I 12/14/11 Art Orywalt
I 01/24/12 MP Firestop Corp
Amount Correspondence
$ 3,001.92 Notice of Non-Payment
$53,927.00 Notice of Non-Payment
I $ 7,900.00 Notice of Lien
As stated in Item No. 1, the City requires that the ART Drywall lien (which has now resulted in
ART's filing of a lawsuit against the City), be satisfied via an Order of dismissal. We will require
satisfaction of liens and releases for the other two (2) liens (Cors-Air and MP Firestop Corp).
5. As a condition of the City's approval of Resolution No. 2013-28167 (attached as Exhibit "C"
hereto), Tenant verbally agreed at the March 13, 2013 City Commission meeting to execute a
General Release, attached as Exhibit "D" hereto, waiving any and all claims against the City
including, without limitation, those with regards to the kitchen ventilation and relocation of the air
conditioning system.
6. Site plans were to be submitted to the City prior to the Public Hearing in connection with
Tenant's proposed entertainment use. The plans were to reflect certain conditions required by
the Planning Department, attached as Exhibit "E" hereto.
It is imperative that you either comply with or, where noted, provide the City with the information
requested in, Item Nos. 1-6 above, by no later than April 30, 2013, so that we may advise the
City Commission accordingly, and determine whether to proceed with the May 8, 2013 Public
Hearing and consideration of Amendment No. 3. Failure to do so may result in the proposed
May 8, 2013 items being withdrawn from the City Commission meeting agenda, and in Tenant
being placed in default of the Lease, which remedies may include the return of the Premises to
the City; the acceleration of rent due and payable through the remaining term of the Lease,
including all rent deferral amounts to date; the initiation of legal proceedings; and the recovery of
any costs and reasonable attorney's fees resulting therefrom.
PLEASE GOVERN YOURSELF ACCORDINGLY
Sine .. ·erely, 1 / /fi/L-'
Kathie G. Brooks
Assistant City Manager
AP:KOB
Attachments
675
Mr. Amir Ben Zion
April 26, 2013
Page 3 of3
Copies to:
Mr. Steven E. McNeff
Registered Agent
Penn 17, LLC
45 N.E. 41 Street
Miami, FL 33137
Mr. Amir Ben-Zion
585 N.E. 581h Street
Miami, FL 33137
cc: Jimmy L. Morales, City Manager
Jose Smith, City Attorney
Raul Aguila, Chief Deputy City Attorney
Anna Parekh, Director of Housing/Community Development
Kent 0. Bonde, Interim Leasing Specialist
F:\$AI!VIsset\Pennsylvania Ave Garage Leases\Penn 17, LLC\Penn 17-Penn 17 Outstanding Issues 04-25-2013
676
\
I
J
., ( EXHIBIT A
MIAMI BEACH
City of Miami leach, 1700 ConvenHon Center Drive, Mioml BeaCh, Florida 33139, www.mlamlbeachfi.gov
REAL ESTATE, HOUSING & COMMUNITY DEVELOPMENT
Tel: (305)673-7193 -I30.SJ673-7033
March 26, 2013
Mr. Amir Sen Zion
Managing Member
Penn 17, LLC.
1661 Pennsylvania Avenue, Suite 6
Miami Beach, FL 33139
.r-Jeffrey A Rynor, Esq. ;;,
Mitrani, Ryner, Adamsky & Toland, P.A.-
301 Arthur Godfrey Road, PH
Miami Beach, FL 33140
Copy sent via electronic mall, receipt requested to:
· emrr.ben-zlon@fcsny,com; amlr@fcsnv.com;
sbal@cooperavenue.com
JBynor@mi!!J!ni.CQm
RE: Work Latter and Escrow Agreem~nt (Work Letter) by and between the City of
Miami Beach, Mlamf Beach Redevelopment Agency (collectively "Landlord"), and
Penn 17, LLC ("Tenant"), and Mitrani, Rynor, Adamsky & Toland, PA ("Escrow
Agent"), dated August 29, 2011
NOTICE Of NON-COMPLIANCE
Dear Sirs:
As you know, Landlord and Tenant are currently negotiating a proposed Third Amendment to
Lease, which Is scheduled to be presented to the Mayor and City Commission at Its April 17th
meeting. Since, throughout the course of negotiations {which have Included various
presentations before the City's Finance and Citywide Projects Committee and, most recently,
consideration by the City Commission of the proposed rent abatement and deferral schedule at
the March 13, 2013 City Commission meeting), the City Commission has been clear and
consistent that, aside from the Issues being negotiated, the Tenant must be otherwise In good
standing and free from defaults on the other provisions of the lease (not at Issue in the
negotiations). Accordingly, in preparation for presentation of the Third Amendment at the April
City Commission meeting, the City Administration has been reviewing the remaining lease
terms to ensure that Tenant has been complying with same.
To this end, the purpose of this Notice Is to advise you of certain compliance-related issues
rela'ted to the above-referenced Work Letter which require your immediate attention, as follows:
1. Arlicle 1, Section 2. -The City has no record of Tenant's second deposit Into the Tenant
Construction Fund, in the amount of $500,000. This amount should have been deposited on or
before· 45 days after August 29, 2011 (the Effective Date of the Work Letter). The Escrow Agent
was to have provided the City with written notice after receipt of such payment. Based on the
statement received from the Escrow Agent, dated March 12, 2013, and attached as Exhibit "A"
hereto, It appears the initial $500,000 (the fir$1 half of the Tenant Construction Fund} was
deposited into the Tenant Construction Fund (hereinafter TCF) on Sept 19, 2011. However, the
only other deposit made into the TCF occurred on February 7, 2012, in the amount of
$150}97, leaving a balance due of $349,203.
677
Amlr Ben Zion
Penn 17, UC
Maroh 26, 2013
Page 2of4
{
Action Required: Within seven (7) days of the date of this Notice, Tenant must provide City
with proof of payment (and deposJt with Escrow Agent} of fhe remaining balance due Into the
TCF. Failure to do so constitutes a default under the Work letter and, consequently, the Lease.
2. Article 1, Section 2. ~The TCF was expressly intended only to pay actuar •Hard Costs• of
Tenant's construction work. No portion of the TCF was to be used to fund •soft Costs,• as
same are defined In Article I, Section 2, page 2 of the Work letter. Based on our review of
Exhibit MA,• there are two (2) disbursements that were not approved by the City that were used
to pay for items specifically defined as Soft Costs as follows:
Table 1
Date CkNo Payee Amount Memo
03120112 1567 Citv of Miami Beach Bfd_g De_p_t $12222 92 Permit Fees
03/20/12 1568 City of Mlaml Beach Bldg Dept $48604.43 Concurrency Fees
Total $60,827.35
Action Required: ln accordance with Artlcfe r, Paragraph 2, on page 2 of the Work Letter, "Afl
Soft Costs shall be paid as and when due from Tenant's own funds other than the Tenant
Construction Fund." Accordingly, the aforestated Soft Costs, fn the amount of $60,827.35, must
be replaced In the TCF.
3. Based on the City's reconcfliation of the TCF, which reconciliation is attached as Exhibit •a"
hereto, the following discrepancle$ were noted:
(;) As of May e. 2012, the City reflects the receipt of requests for payment (i.e., In the form of
Draw Requests approved by the City), totaling $723,266. However, the TCF Statement (Exhibit
"A•) only reflects disbursements/payments made by Tenant totaling $550,797, for a net
difference of $72.469. The difference appears to lie fn three (3) Draw Requests that were
approved by the City, but were never disbursed from the TCF, totaling $133,196.64 (and as
noted in T~ble 2 below); coupled with the two unauthorized payments, fn the amount of
$60,827.35, referenced in Table 1 of this Notice.
Table 2
Date Payee Amount Memo
10/27/11 Sky Builders $ 6 800.00 Labor & materials
12/14/11 Halloran Construction $ 25 848.00 labor & materials
01/24112 Halloran Construction $100 546.64 labor & materials
Total $133196.64
(ii) Pursuant to the City's reconciliation in Exhibit "B,• and subject to Tenant's compliance with
Action Items 1 and 2 hereof, the TCF should reflect a balance of $276,733, pending Tenant's
submission of any additional Draw Requests to be approved by the Cfty.
Additionally, you should also be aware that Section 5.2 (n) of the Lease Agreement by and
between the City of Miami Beach, the Miami Beach Redevelopment Agency and Penn 17, lLC.
dated September 16, 2011 (the "Leaseu), specifically requires that In no event shall the
Construction Deposit into the TCF be reduced to less than $50.000, until such tlme as the
Tenant's work has been substantially completed, as determined by the Landlord, in its sole and
678
Amir Ben Zion
Penn 17, UC
March 26, 2013
Page 3of4
(
i
reasonable discretion; and, shall only be released upon issuance of a final Certificate of
Occupancy (CO), with proof that all permits have been closed, together with final lien waivers
and contractor's affidavit reflecting that all contractor's, sub~contractors, laborers and
materialmen have been paid in full.
Action Required: Tenant and Escrow Agent shall provide written clarification, within seven (7)
days of the date of this Notice, as to the discrepancies between the TCF statement (Exhibit ''N)
and the City's reconciliation Exhibit ·a"); such clarification, confirming that the aforestated
balances remain fn the TCF.
4. Article :3, Section 3. * Tenant shall require Its Contractor to provide unconditional
performance and payment bonds covering the total value of Tenant's work issued by a surety
acceptable to Landlord. Said bonds shall be issued for each subcontractor, contractor or
materialman furnishing material or providing labor or seNices to the Premises and shall (I) name
Landlord as an additional obligee, (il) be In an amount, Jn form and content, and issued by
sureties, satisfactory to Landlord and (ill) be In compliance with applicable laws.
Action Required: Tenant shall provide, within seven (7) days of the date of this Notice, copies
of any and all, pel1ormance and payment bonds as required.
5. To date, the City has received formal notification of two (2) claim notices, as well as a Notice
of Lien, for non-payment of work and/or materials related to Tenant's Improvements as noted In
Table 3 below:
Table 3
Date Contractor/Supplier Amount Correspondence
10/27/11 Cors~Air $ 3 001.92 Notice of Non-Payment
12114/11 Art Drywall $53,927.00 Notice of Non-Payment
01/24/12 MP Flrestop_Corp $ 7 900.00 Notice of Lien
Action Required: Any lien, or notice of non-payment for faber or materials on account of
Tenant's Work, shall be deemed if not removed, satisfied or transferred to bond, an Event of
Default under the Work Letter and the Lease Agreement. Accordingly, Tenant must provide to
the City, within seven (7) days of the date of this Notice, documentation of payment or other
form of satisfaction of the outstanding claims enumerated in Table 3 above.
Again, while landlord continues to work with Tenant toward preparation and presentation On
April) of the Third Amendment to the Lease, I (again) emphasize that the City Commission's
final consideration and approval of the Third Amendment, which we intend to present at the
April 17, 2013 City Commission meeting is predicated upon the condition that Tenant, but for its
failure to pay rent in the amounts currently required under the Lease, fs in good standing and
free from default with respect to other Lease provisions (including, without limitation, the terms
and conditions of the Work Letter, which is incorporated as an exhlbH to the Lease).
It is therefore imperative that you promptly provide the City with the information requested
herein, including any cure measures required by the City, so that we may advise the City
Commission (when presenting the Third Amendment) that the Tenant is complying with the
terms of the Work Letter. Accordingly, please respond to the City's "Action Required" items, as
679
Amir Ben Zion
Penn 17, UC
March 26,2013
Page 4 of4
(
set forth herein, by no later than seven (7) days from the date of this Notice, or by April2, 2013.
Failure to do so may result in the Tenant being placed In default under the Work Letter and the
Lease.
Please govern yourselves accordingly.
Sincerely,
~c;v~
Anna Parekh
Director
AP;KOB
Attachments
Cc: Kathie G. Brooks, lnterfm City Manager
Max Sklar, Acting Assistant City Manager
Raul Aguila, Chief Deputy City Attorney
680
0
Ill
301 Arthur God(rey Rd
Penthouu
Miami Beach A. 331 40
T 305,868.0050
F 305.358.0560
www.mftronl.com
MITRANI RYNOR
ADAMSKY TOLAND
I
ATTORNEYS
EXHIBIT B
Fort Lauderdale Oflke Aprl13, 2013
2400 N Commerce Pkwy
Sult11302 .
Wet!cn FL 33326
Jeffrey A. Ryner
jrynor@mttronl.com
Anna Parekh, Director
Raul J. A8uila, Chief Deputy City Attorney
1700 Convention Center Drive
Fourth Floor
Miami Beach, Florida 33139
Re: Lease Agreeme/11 (Le116e) between the CUy of Miami Beach, Florida,
The Mimnl Beach RedevelfJpmsnt Agency {lu1relnq.fter coOectlvely
refemJI/to tlS LfUidlord) 1111tlPenn 17, LLC (J'eiUlllt), IIWolvlng the
leose ofapprox/JtuJJN.y 7,665 squarefeetofgroundfloor retail
space at Penn9J!IW1nla Avenue Garage, 1661 Pennsylvania Avenue,
Mlllml Beaeh, Florida (Premiaea)
Dear Ms. Parekh and Mr. Aguila:
This letter responds to your Notice ofNon~Compliance dated March 26, 2013.
As you knDw, the Tenant has spent well in excess of the One Million Dollars
contemplated in the Tenant Conatruction Fun~ because the Tenant wants to make the
restaurant space as unique and beautiful as possible, plus provide unparalleled cuisine
and supa-lative service, ln order to aocmnplisb this goal, the Tenant has eontributed
substantial funds and spared no expense to design a unique space that compliments the
artistic beauty of LJncoln Road. The build-out of the restaurant very much reflects the
tremendous effort the Tenant put into the space, to convert it from a garage and provide
an architectural rebirth.
With this in mind, the Tenant responds to the compliance related issues as follows:
1. Article 1, Section 2. ~ The To1Wlt provided a deposit of $500,000 on September
19, 2011 and a $150,796.82 deposit on February 2, 2012 for a total of $650,796.82. The
Tenant paid for construction costs in the amount of $1,281,614.12 to Halloran
Construction alone. In addition, the Tenant paid $917,489.41 for kitchen equipment and
construction costs. The Tenant also paid for lighting and a sound system which cost
approximately $120,000~ plus the furniture ( $150,000) and architectural fees ($120,000).
Although the Tenant did not deposit the remaining balance of $349,203 it certainly
· complied with the Lease's requirement regarding construction by paying for the
681
. ,,.,.::·
0
Ill
MIT RAN I RYNOR
ADAMSKY TOLAND
ATTORNEYS
construction costs as reflected :in th6 numerous invoices and checlcs attached hereto as
Exhibit 1.
2. Article 1, Section 2. -Although the Tenant paid City of Miami Beach
Building Department permit fees and concurrency fees, the additional cheeks that have
been supplied as Exln'bit 1 to this letter retleot that the Tenant has paid for hard costs
beyond the mnount originally anticipated in the TCF. Consequently, the Tenant would
propose that the hard costs that were paid to the gene.ml contractor, aa well as sub-
contractors, be credited towards the hard costs.
3. Attached please find as Exhibit 2, the disbursement of the funds.
4. Article 3, Section 3. -As you know the contractor has pcrfortned under the
contract and completed the restaurant. Unconditional performance and payment bonds
are not readily available for restaurants. However, the permitting process as well as a
simple visual inspection will con.firm that the work bas been completed.
5. Tho Tenant will deposit in escrow $64, 828.92 by AprlllS, 2013, as it relates to
the three claims referred to ln your letter. In the meantime, the Tenant has already been
in contact with the drywall company and it is willing to agree to an extension. if
oecessary to the complaint, to amicably resolve this matter. It should be noted that the
Tenant disputes these claims, but will resolve them. as soon as possible.
2
682
RESOLUTION NC.. 2013-28167,
A RESOLUTION OF MAYOR AND Orr¥ COMM18SlON OF THE CITY OF MIAMI
BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE
AND CI'TYWIDE PROJECTS COMMiiii!S PERTAINING TO THAT CERTAIN
RETAIL LEASE AGREEMENT BY AND BETWEEN THE CITY OF MIAMI BEACH,
THB MIAMI BEACH REDEVELOPMENT ACiENCY AND PENN 17, LLC (LESSEE~
DATED SEPTEMBER 18, 2011, INVOL\IING "THE LEASE OF APPROXIMATELY
7,8U SQUARE FEET OF GROUND FLOOR RETAIL SPACE AT THE
PENNSYLVANIA AVENUE GARAGE, 1S51 PENNSYLVANIA AVENUE, MIAMI
BEACH. FLORIDA; GRANTING THE U!88EE THE FOLLOWING AMENDED
SCHEDULE OF RENT: 1) APPLYING ONE THIRD {113) OF THE LESSEE'S
EXISTING SECURITY DEPOSIT, REPfti'ti!NTING $47,844, TOWARD BAS!
RENT OWED FOR THE MONTH OF NOV51BER 2012; 2) DEFERRJNO $8,474
FOR COMMON AREA MAINTENANCE (CAl() FOR NOVEMBER 2012, AND SASE
RENT, PLUS CAM, FOR DECEMBER 2tl.12a IN TKETOTAL AMOUNT OF $84,792
(HER!INAFTeR REFERRED 1'0 AS THEIJAOK.OUS RENT); 3)APPROVING AN
ABATEMENT OF FIFTY PERCENT (SCI%~ OF THE BASE RENT AND CAM DUE
FOR THE SIX (8) MONTH PERIOD OOUMENCING JANUARY 13, 2013
THROUOH JULY 12, 20131 4) DEFERRhiG FIFTY PERCENT (10%) OF THE
SASE RENT AND CAM FOR THE SIX (6J MONTH PERIOD COMMENCING JUL. Y
13, 2013 THROUGH JANUARY 12, 1014; AND, I) PROVIDING FOR RE·
PAYMENT BY LESSEE OF THE ONI '"MIRO SECURITY DEPOSIT AND RS~
PAYMENT OF THE BACK..OUE RENT FtlRI'KlVEUSERAND DECEMBER. 2012;
ALL IN ACCORDANCE WITH THE PA't'IENT SCHEDULE ATTACHED AS
EXHIBIT "A" HERETO; FURTHER 8En'1MG OF A PUBUC HEARING BY THE
CITY FOR APRIL 17, 2013, REGARDING LESSEE'S PROPOSAL TO ADD AN
ENTERTAINMENT COMPONENT AS A NEWY PROPOSED USE' ON THE LEASE
PREMISES (AND AS PART OF LESSEe'S PROPOSAL TO "RE-BRAND" AND
RE-OPEN THE PREMISES), AND AS RE!QIIRED BY SECTION 142-362 OF THE
CITY CODE.
EXHIBIT C
WHERSAS, on April 13, 2011, the Mayor al'1d City Commission adopted Resolution No.
2011·27847, approving a Lease Agreement (the "Lee~se~). between the City, the RDA (colldvely,
Lessor) and Penn 17 LLO. (Lessee), having a tanm ot nine (9) years and 364 days, for use of
approXImately 7,807 square feet of ground level retail space at the Pennaytvanla Avenue Garage,
1661 Pennsylvania Avenue, Miami Beach, Florida. for a restal.l1'8nt (prlmary use), with anciHary ueea
for a bakery, a bat/cafe, and a book and gift shop (Uie 11Premlses"); and
WHEREAS. on FabruaJY 8, 2012, the Mayor and City Commission adopted Resolution No,
2012 .. 0000, approving a First Amendment to the L..eaa&, correcting the groes rentable retail apace
from 7,807 square feet to 7,655 square feet, as wei as providing for a corresponding reduction In
annual Base Rent from $685,525 to $574,126, anrt he cost of Common Area Maintenance (CAM),
from $100,370 per year to $98,850 per year; and
WHEREAS, on June 6, 2012, the Mayor and City Commlaelon adopted Resolution No. 2012·
27926, approving a Second Amendment to the L.eaae; 1) granting the Lenee a one (1) month
abatement of Base Rent and deferrtng an additional two (2) months' of Base Rent to be paid by the
Leesee In lump sum or In thirty alx (36) equal montl1~ 131Stsllmenta together with regular payments of
rent, taxaa and Common Area Maintenance {CAM), oommendng In the thlrd year of the Lease Term
and ending on the last day of the fifth year of the L ... Termi 2) Increasing the elze of the Lessee's
Additional Area (Storage Spaoe), as defined In ~ 3.11 of the l..eate, to Include an additional
284 square feet, currently designated for storage of h building's flood panels; 3) inoreaalno the
oharge for Common Area Maintenance (CAM) frc»11 $G8,860 per year to $101,690 io refteat the
lnoreaee In size of the Additional Area; and 4) oonatruot!ng. at the Lessee's sole cost and e)Cplnu,
683
a new replacement enclosure for the storage of flood panels, subject and pursuant to the
satlafactlon and approval of the L888or, and
WHEREAS, the Leased Premises, which housed the Cooper Avenue Restaurant. have been
closed alnoe December 17, 2012i and
WHEREAS, the Lessee Is now requesting rent relief In conneotlon with certain operational
oompltoatlons resulting from th& fallure of Its air condltfonlng system; and
WHEREAS, on December 20, 2012, and January 24, 2013, the City's Finance & CityWide
Projects Committee (FCWPO) expressed support for providing some level of relief to the Lesaee,
subJect to the Inclusion of epeolflc release language absolving the City of any liability regarding
Lesaee's coat overruns and claims related to loss of buslneeSj and
WHEREAS, the FCWPC recommended In favor ofthefoHowlng te!Tilt: 1) applying one-third
{113) of the Lessee's existing Security Deposit, representing $47,844, towards Base Rent owed for
the month of November, 2012; 2) deferring $8,474 for Common Area Maintenance (CAM) for
November, 2012, and Base Rent, plus CAM, for December 2012, In the total amount of $64,792
(Back .. Oue Rent)i S) approving an abatement of 50% of the Base Rent and Common Area
Maintenance (CAM) due for the slx (6) month period commencing January 13, 2013 through July 12,
2013; 4) detening fifty percent (50%) of the Base Rent and CAM for the six (6) month period,
commencing July 13, 2013 through January 14, 2014 ("Deferral Period•), to be repaid by the
Lessee In lwenty four (24) equal monthly tnetellmente, commencing In the abdh year of the !..ease
Term and ending on the last day of the seventh year of the l..aase Term; and 6) providing for re~
payment by Lessee of the ona-.thlrd security deposit In the amount of $47,844 and re-payment of
the Baok·Due Rent for November and December, 2012, In the amount of $64,791, to be repaid In
twelve (12) equal monthly lnstallmente commencing In the fifth year of the Lease Tetm and ending
on the last day of the flfth year of the Lease Telm; all as further set forth In Elchlblt aN io this
R88olutfon; and
WHEREAS, at the request of the FCWPC, the Lessee has provided the Administration
with a preliminary business plan whloh proposes 1 re•brandingll and re..openlng of the Leased
Premises by July 13, 2012: and
WHEREAS, Lessee proposes that the Premises, When rewopened, will house three (3)
Individual concepts; an anchor restaurant facing 17th street, Involving the Leeaee•s relocation of Ita
Bond Street Restaurant (currently located at the Townhouse Hotel); a celebrity chef lat&-nlghtfaet
casual eatery In the center eeotlon of the spaoe; and (subject to City approval), a lounge/bar In the
extstlng bar area; and
WHEREAS, slnoe the lounge/bar component proposes an entertainment uee1 which Is not
a permitted use In the CMc and Convention center (CCC) zoning dletrlct, a public hearing Is
required, under Section 142 .. 382 of the City Code to approve euoh use.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept
the recommendation of the City's Finance and CltWJfde Projects Committee pertaining to a
proposed Amendment No. 3 to that certain Retail Lease Agreement by and between the City of
Miami Beach, the Miami Beach Redevelopment Agency (collectively, Lessor), and Penn 17, LLC.
{Lessee)~ dated September 16, 2011,1nvolvlng the leeee of approxJmately 7,655 square feet of
oround floor retall space at the Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami
Beach, Florida; '*'Dmmendlng that, as part of said Amendmen~ the Mayor and City Oornmlstlon
approve the following amended schedule of rent 1) applying one third (1.13) of the Leeue'a security
depoelt In the amount of $47,844 towards baei<Mdue rent amounts owed for the months of
November, 2012; 2) deferring $8,47 4 for Common Area Maintenance (CAM) for November, 2012,
and Bate Rent, plua CAM, for December, 2012., In the amount of $64,792 (Back~Oue Rent)i S)
approving an abatement of fifty percent {50%) of the Base Rent and Common Area Ma!ntenance
(CAM) for the abc-month period commencing January 13 through July 12, 2013: 4) deferring offi~
684
percent (50%) of the Base Rent and CAM for the six-month period commencing July 1 S through
January 12, 2014; and 5) provldlngforre..paymentby Leeseeof theonethJrdseourt~depoaHand
re-payment of the Baok·Due Rent for November and December, 2012i an In accordance with the
payment schedule attached aa Exhibit" Aij hereto; further seWng of a publlo hearing by ihe City for
Aprll17, 2013, regarcUng Lasaee'a proposal to add en entertainment component as a new proposed
uee on the Lease Premlaes (and as part of Lessee's proposal to "fe..brand" and re-open the
Premises), and as required by section 142-362 of the City Code.
PASSED AND ADOPTED THIS 13TH DAY OF MARCH, 2013.
A'lii!ST:
CITY CLERK
KGB:MS:AP:KOB
T:\AGENOA\201 S\Maroh 13\Con&ellt Penn 17 U.C CMS RESO.doo
685
MAYOR
APPROVED AS TO
FORM & LANGUAGE
&FOA exeounoN
o"' l. ... ~
... lme
4
686
EXHIBITD
GENERAL RELEASE
This Instrument Prepared By:
City Attorney's Office
Clty of Miami Beach
1700 Convention Center Driw:
Fourth Floor
Miami Beach. Florida 33139
GENERAL RELEASE
As consideration for the Mayor and City Commission of the City of Miami Beach, Florida's
adoption of Resolution No. 2013-28167 on March 13, 2013, PENN 17 LLC, a Florida limited
liability company, for itself and its officers, directors, shareholders and principals (collectively
"Tenant"), and AMIR BEN ZION, personally and individually, by execution hereof, hereby fully
and unconditionally release the City of Miami Beach, Florida, and its commissioners,
employees, administrative executives, staff, attorneys, and their respective successors and
assigns (collectively "City"), from any and all manner of actions, causes of action, contracts,
agreements, covenants, controversies, claims, and demands whatsoever, whether legal or
equitable, known or unknown, fixed or contingent (collectively, the "Claims"), from the beginning
of the world until the Effective Date of this Release (as set forth in page 2 hereof), and relating
to that certain retail lease agreement by and between the City of Miami Beach, the Miami Beach
Redevelopment Agency (as "Landlord"), and Tenant, dated September 16, 2011, involving the
!ease of approximately 7,655 square feet of ground retail space at the Pennsylvania Avenue
Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida (the "Premises"), including, without
limitation, any Claims resulting from the (i) ventilation system, and/or (ii) the air conditioning
system on the Premises.
The provisions of this Release shall survive any termination or expiration of the Lease.
This Release contains the entire agreement between the parties, hereto, and the terms of the
Release are contractual and not a mere recital.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
1
687
IN WITNESS WHEREOF, I have hereunto set our hand and seal this ____ _
day of , A.D., 2013 ("Effective Date").
ATTEST:
By: __________ _
Secretary
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
TENANT:
PENN 17, LLC
By: __________ _
General Partner
Print Name
The foregoing instrument was acknowledged before me this day of
,.,....._,__.,........,.,.....,-,.,.,... 2013, by as of Penn 17, LLC, a
limited liability entity. He/she is personally known to me or produced valid Florida driver's
licenses as identification.
Name: _________________ ___
(Print Name)
Notary Public-State of Florida
My Commission Expires: ____ _
2
688
ATTEST:
By: __________ _
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
AMIR BEN ZION
By: __________ _
Amir Ben Zion
Print Name
The foregoing instrument was acknowledged before me this day of
-=:-.....,..-:-~-:--~' 2013, by Amir Ben Zion. He/she is personally known to me or produced valid
Florida driver's licenses as identification.
Name: _________________ ___
(Print Name)
Notary Public-State of Florida
My Commission Expires: ____ _
3
689
EXHIBIT E
690
Damien, Elizabeth
From: Lorber, Richard
Sent:
To:
Thursday, March 14,2013 7:10PM
Parekh, Anna
Cc:
Subject:
Anna,
Aguila, Raul; Gomez, Jorge
RE: Penn 17 -Conditions
As we discussed earlier, here are some conditions:
• A double door vestibule shall be created and maintained at the main entrance of the establishment.
• The ground floor windows facing Pennsylvania Avenue shall be sufficiently transparent to afford views
of the interior of the facility.
• The applicant shall be responsible for maintaining the areas adjacent to the facility, such as the
sidewalk and the areas of the street adjacent to the property. When sweeping the area in front of the
establishment, the personnel doing the sweeping shall ensure that they do not merely push the refuse
in front of another building, but pick up all trash and dispose of it appropriately.
• In the event there is queuing of people to gain entrance to the establishment, stanchions shall delineate
the area to allow for the free-flow of pedestrians. Security staff shall monitor the crowds to ensure that
they do not interfere with the free-flow of pedestrians on the public sidewalk.
• Street flyers and handouts shall not be permitted, including handbills from third-party promotions.
• Ail 11Wet T-shirt," "thong" or "bikini" events shall be prohibited.
• Security staff shall take measures to strictly enforce patron age restrictions in the City Code at all times.
From: Parekh, Anna
Sent: Thursday, March 14, 2013 3:42 PM
To: Lorber, Richard
Cc: Aguila, Raul; Bonde, Kent
Subject: Fw: Penn 17 ~Notice Public Hearing.doc
Richard,
Are you OK with this proposed language?
Anna
From: Bonde, Kent
Sent: Thursday, March 14, 2013 03:36PM
To: Aguila, Raul; Parekh, Anna
Subject: Penn 17-Notice Public Hearing.doc
Raul, Anna
Have drafted the attached Public Hearing notice re Penn 17' s proposed Change of Use for the entertainment
component. Please advise of any changes, before forwarding to the City Clerk.
1
691
Exhibit C
Penn 17, LLC
Stipulation for Entry of Final Order of Dismissal with Prejudice
692
A.R.T. DRYWALL SOUTH, INC.,
a Florida corporation,
PJaintif~
v.
CITY OF MV\MI BEACH, a Florida municipal
corporation, and THE MIAMI BEACH
REDEVELOPMENT AGENCY, a public body
corporate and politic,
Defendants.
/
IN THE ClRCfJIT COURT OF THE ll TH
JUDICIAL ClRCUIT fN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT ClVIL DIVISION
CASE NO. 13-10726 CA 04
STlPOLA TION f'OR ENTRY OF FINAL ORmW. OF DISMISSAL
WITH PRF:;JUOICE
Plaintiff, A.R.T. DRYWALL SOUTH, INC., and Defendants, ClTY OF MLAMl BEACH
and THE MIAMI BEACH REDEVELOPMENT AGENCY, by and through their respective
attorneys, hereby stipulate to the entry of a Final Order of Dismissal of this action, with
prejudice, with each party to be~if their own attomeys' fees and costs.
l I 4r./ J <"'"(.;;;<' // "",·
Dated: t• 4 //> .2013.
--·--··y·"-·----~--
T.I\YLOR VEGA, P.A ..
2555 Ponce de Leon Boulevard, Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443-2043
Facsimile: (305) 443-2048
OFFICE OF TH.E CITY ATTORNEY
CITY OF M1AM1 BEACH
1 700 Convention Center Drive, 4th Floor
Miami Beach. Florida 33139
Te!:;:p]LQ~05) 673~7000 Ext. 6731
(Pricsimile: }.)05) 673-7002
'\ . II I f ;!
·,.. I /i · 1. I 1/ "'·
·,·\, l I /11 A (\.,L ~ ·t.a·· n1. C ) -·-, I . ~~ . w f\ \Jt. .>
By: .,~ .. ~~'f)A·~:~ -JJ~ fil\{~
Florida Bar No. 863890
Attorneysfor Delendants
693
CERriFlCATE OF SERVICE
HEREBY CERTIFY that a true and correct copy of the above was .served via
Email/PDF and U.S. Mail this --;:_-~-·day of April, 2013 on:
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Drive, 4th Floor
Ivfiami Beach, Florida 33!39
Email: rhondamonto_ya(a{miamibcachfl.f!ov
Rcr,1)Ccttully submitted,
TAYLOR VEGA, P.A.
Attorne,vsfor Plaintiff
2555 Ponce de Leon Boulevard, Suite 220
Coral Gables, Florida 33134
Telephone: (305) 443~2043
Facsimile: (305) 443-2048
By:
\ l
DA. R. VEGA
FlQ.r('(Bar No. 148t20
MIGUEL A. BRIZUELA
F!otida Bar No. 21465
Q..vega@!m:Jorve ga.£_om
mbrizuelat1j)taylorvea:a.corn
earabitgfq{tavlorvega.com
H.'235. ART !Jrywa!i\2.35..00! (Halloran Bcn·lit\n Miami lkacll)\Picadings\Stlpnlation for Em1:·· of Final Onltr oflX;missaLdoc:<
2
694
A.R.T. DRYWALL SOUTH, INC.,
a Florida corporation,
Plaintiff,
v.
CITY OF MIAt.-H BEACH, a Florida municipal
corporation, and THE MIAtv1I BEACH
REDEVELOPMENT AGENCY, a public body
corporate and politic,
Defendants.
-----··------------------·-----------/
IN THE CIRCUIT COURT OF THE 1 (rH
JUDICIAL CIRCUIT IN AND FOR
MlAIYfl·DADE COUNTY, FLORIDA
CIRCU1T CJVIL DIVISION
CASE NO. 13~10726 CA 04
FINAL ORDER OF DISMISSAL \VITH J>REJUJ)ICE
THIS CAUSE having come before the Court on the Stipulation for Entry of Final Order
of Dismissal \vith Prejudice by the Plaintiff, A.R.T. DRYWALL SOUTH, INC., and Defendants,
CITY OF MIAMI BEACH and THE MIAMI BEACH REDEVELOPMENT AGENCY, it is
hereupon
ORD-ERED and AD.JUDGED as follows::
l. This action is DISMiSSED with prejudice, with each party to bear its O\vn
attorneys' fees and costs.
DONI~ and ORDERED in Chambers in Miami-Dade County, Florida on this_ day of
_________ , 2013.
Copies fi1rnished to:
Daniel R. Vega, Esq.
Rhonda Montoya Hasan, Esq.
695
THE HONORA.BLE BETH BLOOM
CIRCUIT COURT JUDGE
696
Exhibit D
Penn 17, LLC
Tenant Construction Fund (TCF) Reconciliation
04/04/2013 TENANT CONSTRUCTION FUND (TCF} RECONCILIATION ...--·'-"'""''-"'~'""'~'""'-~""""''"'""''""''""-""""'"'""-·""'-'"-'"''""''''''c--""-""""'"'""'-"""""' ___ ,_.,..._,. Penn 17, LLC Per Contract Per Escrow Agent Difference Construction Beginning Balance: $ 1,000,000.00 $ 650,796.82 $ 349,203.18 Authorited Via PmtsMade I novice Date Supplier Description: CMB From TCF Difference 10/27/2011 Sky Builders Labor & materials $ 6,800.00 $ $ 6,800.00 $ 993,200.00 $ 650,796.82 $ 342,403.18 12/14/2011 Holloran Construction labor & materials $ 25,948.00 $ $ 25,948.00 $ 967,252.00 $ 650;796.82 $ 316,455.18 01/24/2012 Ha I loran Construction labor & materials $ 100,548.64 $ $ 100,548.54 $ 866,703.36 $ 650,796.82 $ 215,906.54 03/06/2012 Halloran Construction Labor & materials $ 43,404.00 $ 43,404.00 $ $ 823,299.36 $ 607,392.82 $ 215,906.54 03/20/2012 CMB Building Dept Permit fees(**) $ $ 12,222.92 $ ( 12,222.92) s 823,299.36 $ 595,169.90 $ 228,129.46 03/21/2012 CMB Building Dept Concurrency fees(**) $ $ 48,604.43 $ {48,604.43) $ 823,299.36 $ 546,565.47 $ 276,733.89 03/29/2012 Halloran Construction Labor & materials $ 384,075.00 $ 384,075.00 $ $ 439,224.36 $ 162,490.47 $ 276,733.89 03/30/2012 American Food Equipment Kitchen/restaurant equipment $ 75,000.00 $ 75.000.00 $ $ 354,224.36 $ 87,490.47 $ 276,733.89 05/09/2012 American Food Eq uiprnent Kitchen/restaurant equipment $ 87,490.47 $ 87,490.47 $ $ 276,733.89 $ (0.00) $ 276,733.89 $ $ $ $ $ $ $ $ $ $ $ $ Total Disbursements From TCF to Date: $ 723,266.11 $ 650,796.82 $ 72,469.29 $ 276,733.89 $ $ (276,733.89) Authorized Via PmtsMade Reflected as paid from TCF since receipt of TCF Esrow Statement on 3/12/2013: CMB FromTCF Differem:e 11/05/2012 1845{*) Met 1 Market Labor & materials {u) $ $ 72,546.00 en Sub-Total Discrepancies: $ $ 72,546.00 $ (72,546.00) (Q ....... Revised Total Disbursements from TCF to Date: $ 723,266.11 $ 723,342.82 $ (76.71) Payments made from Tenant's own construction account for labor & materials (Assumes retroactive approval by CMB in lieu of TCF expenditures): Authorized Via PmtsMade Date Check No: Supplier: Description; CMB Penn 17, llC Difference 10/27/2011 Sky Builders labor & materials Approved as $ 6,800.00 $ {6,800.00) 12/14/2011 Halloran Construction Labor & materials TCF $ 25,948.00 $ (25,948.00) 01/24/2012 Halloran Construction Labor & materials Payment $ 100,548.64 $ (100,548.64) 03/23/2012 1089 Halloran Construction labor & materials(*) $ 136,662.74 $ 136,662.74 $ 06/24/2012 1124 Halloran Construction Labor & materials(*) $ 100,000.00 $ 100,000.00 $ 07/05/2012 1136 Halloran Construction labor & materials(*) $ 100,000.00 $ 100,000.00 $ 07/31/2012 1169 Halloran Construction labor & materials(*) $ 100,000.00 $ 100,000.00 $ 08/01/2012 1172 Halloran Construction Labor & materials(*) $ 59,557.72 $ 59,557.72 $ 08/08/2012 1192 Halloran Construction Labor & materials(*) $ 62,053.28 $ 62,053.28 $ 09/05/2012 1233 Halloran Construction Labor & materials(*) $ 68,254.31 $ 68,254.31 $ 10(19/2012 1381 Halloran Construction Labor & materials(*) $ 20,000.00 $ 20,000.00 $ 10/29/2012 1384 Halloran Construction labor & materials(*) $ 35,000.00 $ 35,000.00 $ 11/26/2012 1517 Halloran Construction Labor & materials (*) $ 14,267.50 $ 14,267.50 $ 11/27/2012 1534 Halloran Construction Labor & materials(*) $ 2,500.00 $ 2.500.00 $ Sub-Total, Tenant's Construction Account Disbursements: $ 698,295.55 $ 831,592.19 $ (133,296.64} Total Disbursements to Date: $ 1,421,561.66 $ 1,554,935.01 $ {133,373.35) (**) Note:(*) Assumes retroactive approval by CMB in lieu of TCF expenditures: (**) Difference~ 3 highlighted payments not approved by CMB
Exhibit E
Penn 17, LLC
Check# 1648, in the amount of $50,000.00, dated 04/30/2013
Pay to the order of: Mitrani, Rynor, Adamsky & Toland, P. A.
698
PAY
Penn 17 LLC
112 NE 41st Street
Miami, FL 33137
305-456-14 70
City National Bank Of Florida
One Biscayne Tower
Miami, FL 33131
305-577-7277
1648
FIFTY-THOUSAND AND 00/JOO**********~*********.****f*f<*-":~**'ll*********************** DOLLARS ·----------
TO THE
ORDER
OF
Mitrani, Rynor, Adamsky & Toland, P.A.
IOTA Trust Account -·
301 Arthur Godfry Road, PH
Miami Beach, FL 33140
Penn 17 LLC
Mitrani, Ryner, Adamsky & Toland, PA
Date Type Reference
4/30/2013 Bill Escrow Account
Penn 17 Escrow Account
Penn 17 LLC
Mitrani, Rynor, Adamsky & Toland, PA
Date Type Reference
4/30/2013 Bi!! Escrow Account
Penn 17 Escrow Account
Original Amt.
50,000 00
Original Amt
50,000 00
699
4/30/2013
Balance Due Discount
50,000.00
Check Amount
4/3012013
Balance Due Discount
50,000 00
Check Amount
1648
Payment
50,000.00
50,000 00
50,000.00
1648
Payment
50,000.00
50,000.00
Exhibit F
Penn 17, LLC
Notice of Satisfaction and Accord and Waiver of Claims Against
Penn 17, LLC by MP Fire Stop Corp
700
NOTICE OF SATISFACTION AND ACCORD AND WAIVER OF CLAIMS
AGAINST PENN 17, LLC BY MP FIRE STOP CORP.
The Undersigned, on behalf of MP FIRE STOP CORP., ("MPFS"), hereby acknowledges
that full and final payment of $7,900.00 (Seven Thousand Nine Hundred Dollars), has
been received from or on behalf of PENN 17, LLC extinguishing and retiring any and all
outstanding debts and invoices for goods, materials and services rendered for PENN 17,
LLC d/b/a Cooper Ave and relating to work performed at 1661 Pennsylvania Ave, Miami
Beach FL 33139.
By the execution of this document MPFS now and forever releases, waives, indemnifies
and holds harmless the City of Miami Beach, Halloran Construction Corp., and PENN 17
LLC d/b/a Cooper Ave for any outstanding debt that it may have had on its own behalf or
by and through any and all sub-contractors for the above-referenced job and permit.
MPFS voluntarily relinquishes and waives any and all claims and legal actions for the
identified debt and shall immediately notify the City of Miami Beach that all debts are
satisfied, paid, or otherwise \Vaived and there exists no further claims relating to this
particular matter.
By: , / (J 4: -3t) ~-I ,~3
Date
A R ISLE 1:0 Y t±Et2rV'A rJ:.D&?: 2:
Printed Name /
On behalf of MP Fire Stop Corp.
121 Golden Isles Drive, #404
Hallandale Beach, FL 33009
STATE OF FLORIDA .
COlJNTY OF /1! ft 00 I -<;J:;I[;D e~.
The foregoing instrument was executed and acknowledged under oath by
~ts.: i..G/LP y ttf:fl.t··'/}AIJJil):. who is personally known to me or produced identification r I .
' ? .. ··; f'i. 14-,..., ' in the form ofr;.L..]>gwea L1 v.r .. d:t # on this _;;t2_ day off't.CiL, 2013.
·++ t;s;-..,; Doc 7--9 327o
My Commission expir
701
702
Exhibit G
Penn 17, LLC
General Release
This Jnstmmem Prepared 1Jy:
City Attomey 's Office
City ofMiami Beach
1700 Convention Canter Drive
Fourth Floor
Miami Beach, Fiorida 33/39
GENERAL RELEASE
As consideration for the Mayor and City Commission of the City of Miami Beach, Florida's
adoption of Resolution No. 2013-28167 on March 13, 2013, PENN 17 LLC, a Florida Hmited
liability company, for itself and its officers, directors, shareholders and principals (correctively
"Tenant"), and AMIR BEN ZION, personally and individually, by execution hereof, hereby fully
and unconditionally release the City of Miami Beach, Florida, and its commissioners,
employees, administrative executives, staff, attorneys, and their respective successors and
assigns (colfectivety "City"), from any and aft manner of actions, causes of action, contracts,
agreements, covenants, controversies, claims, and demands whatsoever, whether legal or
equitable, known or unknown, fixed or contingent (collectively, the "Claims"), from the beginning
of the world until the Effective Date of this Release (as set forth in page 2 hereof), and relating
to that certain retail lease agreement by and between the City of Miami Beach, the Miami Beach
Redevelopment Agency (as "Landlord"), and Tenant, dated September 16, 2011, involving the
lease of approximately 7,655 square feet of ground retail space at the Pennsylvania Avenue
Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida (the "Premises"), including, without
limitation, any Claims resulting from the (i) ventilation system, and/or (ii) the air conditioning
system on the Premises.
The provisions of this Release shaH survive any termination or expiration of the Lease.
This Release contains the entire agreement between the parties, hereto, and the terms of the
Release are contractual and not a mere recitaL
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
703
IN WITNESS WHEREOF, I have hereunto set our hand and seal this-----
day of , AD., 2013 ("Effective Date").
ATTEST:
By: _________ _
Secretary
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI~DADE
)
} SS:
)
TENANT:
PENN 17, LLC
By:----.::-------
General Partner
Print Name
The foregoing instrument was acknowledged before me this day of
~-:--;""'7:""";~· 2013, by as of Penn 17, LLC, a
limited liability entity. He/she is personally known to me or produced valid Florida driver's
licenses as identification.
Name: ____________________ _
(Print Name)
Notary Public -State of Florida
My Commission Expires: ___ _
2
704
ATIEST:
By: __________________ __
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI~DADE
)
) SS:
)
AMIR BEN ZION
By: ________ _
Amir Ben Zion
Print Name
The foregoing instrument was acknowledged before me this day of
o;:::-;--..,...,...._,...,.__,., 2013, by Amir Ben Zion. He/she is personally known to me or produced valid
Florida driver's licenses as identification.
Name:--------------~-----
(Print Name)
Notary Public -State of Florlda
My Commission Expires: ____ _
3
705
706
Exhibit H
Penn 17, LLC
Claim of Lien
A & P Air Conditioning Corporation
PREPARED BY
Adrian F. Gonzalez
A & PAIR CONDITIONING CORPORATION
2322 West 78th Street
Hialeah, Florida 33016
(3051 556-7849
CLAIM OF LIEN
STATE OF FLORIDA
COUNTY OF MIAMI DADE
BEFORE ME, an officer duly authorized in the State aforesaid
and in the County aforesaid to take acknowledgements,
personally appeared Adrian F. Gonzalez, to me known to be
the person described in, or has produced identification and who,
after being first duly sworn, deposes and says that he/she is the
agent of the lienor herein:
A & P AIR CONDITIONING CORPORATION
2322 WEST 78TH STREET
HIALEAH, FLORIDA 33016
and that in accordance with a contract with:
HALLORAN CONSTRUCTION
lienor furnished labor, services or materials consisting of:
HVAC
on the following described real property:
GIGI'S RESTAURANT I 1661 PENNSYLVANIA AVENUE I MIAMI BEACH,
FLORIDA I AS RECORDED IN THE PUBLIC RECORDS OF MIAMI DADE
COUNTY, FLORIDA I PROPERTY CONTROL If 02-3227-000-0090
NOC: INSTRUMENT it 2012R0211198 34 53 42 138.17 AC M/L PARK
EAST OF BAYSHORE GOLF COURSE & PARK SO OF CANAL & E OF
WASHINGTON AVE LESS PARVEL TO BPI PER OR 976-566 & LESS
GREATER MIMii HEBREW ACAD PER. OR 2241·185
owned by:
CITY OF MIAMI BEACH
FLA BAY SHORE CLUB COURSE
MIAMI, FLORIDA 33125-3713
of a total value of:
TWO HUNDRED THOUSAND DOLLARS AND 00/00 ($223,693.00)
of which there remains unpaid:
II IIIII Ulllllllllllllllllllllll 111111111 till
CFI"" 2() ~ 2R089320 :1
OR Bk 28396 Pa 3630i (1vs)
RECORDED 12/12/2012 12~~;;55
HARVEY RUUIN1 CLERK OF COURT
MIAMI-DADE COUNTYt FLORIDA u,s·; PAGE
WARNINGt
THIS LEGAL DOCUMENT REFLECTS THAT
A CONSTRUCTION LIEN HAS BEEN PLACED
ON THE REAL PROPERTY LISTED HEREIN.
UNLESS THE OWNER OF SUCH PROPERTY
TAKES ACTION TO SHORTEN THE TIME
PERIOD, THIS LIEN MAY REMAIN VALID
FOR ONE YEAR FROM THE DATE OF
RECORDING, AND SHALL EXPIRE AND
BECOME NULL AND VOID THEREAFTER
UNLESS LEGAL PROCEEDINGS HAVE BEEN
COMMENCED TO FORECLOSE OR TO
DISCHARGE THIS LIEN.
HOWEVER, THE NEGLIGENT INCLUSION
OR OMISSION OF ANY INFORMATION IN
THE CLAIM OF LIEN WHICH HAS NOT
PREJUDICED THE OWNER DOES NOT
CONSTITUTE A DEFAULT THAT OPERATES
TO DEFEAT AN OTHERWISE VALID LIEN.
TWENTY TWO THOUSAND EIGHT HUNDRED DOLLARS AND 00/100 ($73,693.00)
for which amount the lienor claims a lien on the above described real property. He/She further states that
the lienor furnished the first of said labor, services or materials on MARCH 27, 2012, and the last of the
same on SEPTEMBER 20, 2012 , and that the lienor served a Notice to Owner on MARCH 27, 2012 , by
Certified Mail and that the lienor served a Notice to Owner on the contractor by Certified Mail.
Under penalties of perjury r declare that I have read the foregoing and the facts alleged are true, to the best of
my knowledge and belief.
A & P AIR CONDIT ING CORPORATION
Adrian F. Goriz1l-Ie;', ice President _
The foregoing instrument was sworn and subscribed b fore me this !.2-day of D£_C·.J!~;t2012 by
Adrian F. Gonzalez of A & PAIR CONDITION~G CORVO'RATION He s[le is personally known to me and/or
did take an oath. ,
-l '
My Commission Expires:
707
Exhibit I
Penn 17, LLC
DRAFT Amendment No.3 to the Retail Lease Agreement
708
Draft 4-29-13
AMENDMENT NO. 3 TO THE RETAIL LEASE AGREEMENT (THE LEASE) BETWEEN THE
CITY OF MIAMI BEACH, THE MIAMI BEACH REDEVELOPMENT AGENCY AND PENN 17,
LLC, DATED SEPTEMBER 16, 2011, INVOLVING THE LEASE OF APPROXIMATELY 7,807
SQUARE FEET OF GROUND FLOOR RETAIL SPACE AT THE PENNSYLVANIA AVENUE
GARAGE, 1661 PENNSYLVANIA AVENUE, MIAMI BEACH, FLORIDA
This Amendment No. 3 (Amendment) to Lease, is made and executed as of this __
day of , 2013 (Effective Date), by and between the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation organized and existing under th~Jaws of the State of Florida
(City), the MIAMI BEACH REDEVELOPMENT AGENCY, a puptic body corporate and politic
(RDA), hereinafter referred to collectively as (landlord), the' .PENN 17, LLC, a Florida
corporation, whose principal place of business is located 1661 Pennsylvania Avenue, Suite 6,
Miami Beach, Florida 33139 (Tenant). ·
RECITALS:
[TO BE INSERTED]
NOW, THEREFORE, in consideration of the mutdatcovenants contained herein and
other good and valuable consideration,· 'th~ receipt and .sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agfeetQ amend theLease as follows:
1. Item 9 of the .t-ease Summary, entitled ''Permitted Use of Premises/Retail Space
(Section 3.t)(Section 3J 1 )," paragraph 1 thereof, is deleted in its entirety and
replaced with the following new paragraph:
;'_~; ,_.,,. '·-'·,_ ·'' '
The mairilprimary uses of the RestaUrant Space, as also described in Exhibit "B,"
shall be for the operation of theJollowing:
' •. !ill
' , • ~~ • • «C • ', ~ < ' , ' ' , . ' , ' ' , ; ' . '
a'pproxim~tely 4000 sq. ft.* of the Space facing 1tn Street will house the
Bond Streetrestaurant, which will be relocated from its current venue at The
Townhouse HoteL\ 150 20 1h Street, Miami Beach, Florida;
approximately 2000 sq. ft.* of the Space will house the area referred to as
"The Counter" (but which Tenant reserves the right to re-name), and will
feature a large counter bar with seating. open kitchen, and communal tables;
and ... ·
. approximately 2000 sq. ft.* will house a lounge/bar, "The Garage," which will
serve a variety of beers and cocktails; and a music program which will include
bot live bands and DJ's.
*[NOTE: Individual square footages above need to be corrected; they exceed
Gross Rentable Area of Premises/Retail Space, which is 7,655 sq. ft.]
Tenant's main/primary uses of the Restaurant Space are further described in Exhibit
"A" attached hereto. [NOTE: Exhibit "A" is Business Plan Amir gave us.]
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Draft 4-29-13
2. Item 10 of the Lease Summary, entitled "Term of Lease (Section 1.1 )," hereby
amends the following defined terms as follows:
.(§1 Landlord and Tenant (the Parties) hereby agree and acknowledge that the
"Lease Commencement Date" is October 13. 20 11;
{Ql the Parties hereby agree and acknowledge that the "Rent Commencement Date"
is April14, 2012; and
£9. the Parties hereby agree and acknowledge that the "Expiration Date" is October
12, 2021
3. Item 11 of the Lease Summary, entitled "Minimum Rent(Section 2.2)," is deleted in
its entirety and replaced with the table attached as Exhibit "B" hereto:
4. Item 16 of the Lease Summary, entitled "Security •. Deposif{Section 2.7)," is amended
to include the following additional paragraph:
Upon approval of Amendment No .. 3 by the Mayor and CitY Commission and
execution of the Amendment by Landlord and Tenant, Landlord will apply a
portion of the Security Deposit. In the amount of$ 47,843 to satisfy past-due
Minimum Rent and Additional Rer\L(CAMLOwed by Tenant for the months of
November and December, 2012. Commencing on the fifth year of the Lease
Term. Tenant shall re-pay the portion of the Security Deposit applied to past due
rent amounts owed in twe!\le(12) equal, consecutive monthly installments, in the
amount of$ 3,987 each.· ·
5. Item 24 of the Lease Summary, entitled "Trade Name (Section 3.1 )," is deleted in its
entirety and replaced with the followin~r ·
ill "BondStreet Restaurant";
ill} "The .Counter" (provided, however. that Tenant reserves the right to re-name
this Portion of the Restaurant Space); and
1illl · "The Gara9e'~. (lounge/bar),·
. 6. The Premises/Retail Space shall re-open for business no later than [FILL IN],
2013.
7: :General Release .. By execution of this Amendment No. 3 to Lease, and as additional
consideration for the Mayor and City Commission of the City of Miami Beach, Florida's
appro\/al of this Amendment, PENN 17 LLC, a Florida limited liability company, for
itselfal1d its Officers, directors, shareholders and principals (collectively "Tenant"),
and AMIRa~N ZION, personally and individually, hereby fully and unconditionally
release the, City of Miami Beach, Florida, and its commissioners, employees,
administrative executives, staff, attorneys, and their respective successors and
assigns (collectively "City"), from any and all manner of actions, causes of action,
contracts, agreements, covenants, controversies, claims, and demands whatsoever,
whether legal or equitable, known or unknown, fixed or contingent (collectively, the
"Claims"), from the beginning of the world until the Effective Date of this Amendment
No. 3 (as set forth in page 1 hereof), and relating to that certain retail lease
agreement (the "Lease") by and between the City of Miami Beach, the Miami Beach
Redevelopment Agency (as "Landlord"), and Tenant, dated September 16, 2011,
involving the lease of approximately 7,655 square feet of ground retail space at the
2
710
Draft 4-29-13
Pennsylvania Avenue Garage, 1661 Pennsylvania Avenue, Miami Beach, Florida
(the "Premises"), including, without limitation, any Claims resulting from the (i)
ventilation system, and/or (ii) the air conditioning system on the Premises. The
provisions of this Release shall survive any termination or expiration of the Lease.
This Release contains the entire agreement between the parties, hereto, and the
terms of the Release are contractual and not a mere recital.
8. Except as amended herein, a!! other terms and conditions of the Lease shall remain
in full force and effect and are hereby ratified and confirmed by the parties.
WITNESS WHEREOF, this Amendment No. 3 has been duly executed by the parties
hereto as of the day and year first above written.
.·. [ ,·,
ATTEST: CITY OFMIAMI BEACH, FLORIDA
City Clerk Mayor
---'-,---day of_,;_;..~---' 2013.
ATIEST: MIAMI BEACH REDEVELOPMENT AGENCY
Secretary i; ·. · · · Chairperson
___ day of _____ , 2013.
PENN 17, LLC.
ATTEST:
President
Secretary
Print Name
3
711
WITNESSES:
Signature
Print Name
Signature
Print Name
Draft 4-29-13
___ day of _____ , 2013.
Approved and executed as to Paragraph 9/
General Release:
By: __________ ~~--------
Amir Ben Zion··
F I$AII\Econ\RHCD\Asset\Pennsylvanla Ave Garage leases\Penn 17\Proposed Rent Schedule Amendment_3 files\Penn 17 Amendment No 3 043013.docx
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RESOLUTION TO BE SUBMITTED
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