Loading...
HomeMy WebLinkAboutExhibitASSIGNMENT, ASSUMPTION OF LEASE AGREEMENT, AND AMENDMENT NO. 4 • This Assignment, Assumption of Lease Agreement, and Amendment No. 4 (the "Agreement") is entered into as of June 22, 2006, between the CITY OF MIAMI (hereinafter the "City"), OVERTOWN VENTURES, INC., a Florida corporation (hereinafter the "Assignor"), and L J GROCERY CORPORATION, a Florida corporation (hereinafter the "Assignee"), for the purpose of providing for the assignment by Assignor to Assignee of that certain Lease Agreement dated as of September 12, 1988, between the City and Assignor, as amended by (i) Amendment No, • 1, dated November 7, 1988, (ii) Amendment. No. 2, dated September 14, 1989, .and (iii) Amendment • No. 3, dated September 30, 1996 (as amended, the "Lease Agreement"). RECITALS WHEREAS, Assignor wishes to assign the Lease Agreement (Facility No. 1 and Facility No. 2) to Assignee and Assignee is willing to assume the Lease Agreement (Facility No. 1 and Facility No. 2) and other obligations owed by the Assignor to the CITY, and WHEREAS, Assignor and Assignee request the City's consent to the Assignment, and WHEREAS, the City and the Assignor have entered into a Stipulated Settlement in Case Nos. 94-1.3825 CA 02 & 06-00771 CA 06, pending in the Circuit Court in and for Miami -Dade County, Florida, which is contingent upon the approval and execution of this Agreement.by all parties hereto, . NOW THEREFORE, in consideration of the premises, and for other good and valuable consideration the receipt and sufficiency whereof is hereby acknowledged, the parties hereto agree as follows: 1. Assignee is an acceptable assignee to the City as required by Paragraph • I8(A) of the Lease Agreement. Assignor hereby assigns all of its right, title and interest under the Lease Agreement (Facility No. 1 & Facility No, 2) to Assignee. 3. Assignee hereby: (a) assumes the rights and •obligations of Assignor under the Lease Agreement (Facility No. 1 & Facility No. 2); (b) acknowledges and agrees to abide by all the terms of the Lease Agreement; (c) acknowledges that all claims that the Assignor has or had against the City, through and including the date of this Agreement, including, but not limited to a claim that the City unreasonably delayed in repairing the grease trap and the discharge line therefrom, are waived and/or released; (d) will abide by all -federal, state and local laws concerning the 2, ASSIGNMENT, ASSUMPTION AND AMENDMENT NO. 4 PAGE 1 use and occupation of the premises described in the Lease Agreement; and (e) accepts the premises described in the Lease Agreement in "as -is" condition. 4. The City consents to the assignment of the Lease Agreement (Facility No. 1 & Facility No. 2) from the Assignor to the Assignee. 5, The Lease Agreement is amended as follows: 5.1 Section 7.1 entitled LATE FEES, is hereby added as follows: i. The Lessee hereby acknowledges that late payment by the Lessee to the City of rent and other sums due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of rent or any other sum due from the Lessee shall not be received by the City within fifteen (15) days after the date on which such sum was due, the Lessee shall pay to the City a late charge equal to 5% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by the Lessee. Acceptance of such late charge by the City shall not constitute a waiver of the Lessee's default with respect to such overdue amount, nor prevent the City from exercising any of its other rights and remedies granted hereunder or at law or in equity. ii. Any amount not paid to the City within fifteen (15) days after the date on which such sum was due shall bear interest at the rate of 12% per annum from its due date until paid. Payment of such interest shall not excuse or cure any default by the Lessee under this Lease Agreement. 5.2 Section 12 of the Lease Agreement, entitled INSURANCE, shall be amended by including the following paragraph: The City reserves the right to reasonably amend the insurance requirements and limits of coverage according to usual and customary standards in the insurance industry, and as circumstances dictate, in order to protect the interest of the City in the Lease Agreement. 5,3 Section 16.1 entitled UNPAID FP&L BILL shall be added as follows: As of the effective date of Amendment No. 4, the LESSEE owes the City $40,062.54 representing the CITY's payment ASSIGNMENT, ASSUMPTION AND AMEND1VMEN 1' NO. 4 PAGE 2 of a FP&L bill for electricity at the Supermarket, Beginning on the first date that rental is due following the effective date of Amendment No. 4, the minimum monthly payment to satisfy this amount is $691.43. This payment is in addition to the rental amount otherwise due. However, after September 2006, interest will accrue at the rate of 6% per annum on the outstanding balance, if any. 5,4 Section 17.1 entitled SANITARY SEWER SYSTEM REPAIRS, shall be added as follows: LESSEE, at its sole cost and expense, shall implement all necessary corrections/repairs to the sanitary sewer system, and maintain such- corrections, so- that no condensate or other cold water enters the intake line leading to the Grease Trap. 'These repairs shall be completed within 180 days of the effective date of Amendment No. 4. 5.5 Section 17.2 entitled STORMWATER SEWER SYSTEM/ROOF REPAIRS, is added as follows: LESSEE, shall have the obligation to make any necessary repairs to the stormwater system, which drains the roof. These repairs shall be completed within 180 days of the effective date of Amendment No, 4. 5.6 Section 17.3 entitled THIRD PARTY EXPERT, is added as follows: The necessity for, and acceptability of, all corrections or repairs required by Sections 17,1 and 17.2, will be completed to the satisfaction of Jorge Dorrbecker, P.E., or, should he be unable or unwilling to continue to serve in this capacity, such other expert hired by the CITY at its sole cost and expense. 5.7 Section 18 entitled ASSIGNMENT AND SUBLETTING OF PREMISES, is amended by adding the following: FACILITY #1 and FACILITY #2 may not be separately assigned. 5.8 Section 27 entitled GENERAL CONDITONS is amended to reflect the address of the Assignee for notice purposes as follows: TO THE LESSEE: L J GROCERY CORPORATION c/o Alicia Lorenzo 1327 NW 3rd Ave. ASSIGNMENT, ASSUMPTION AND AMENDMENT NO. 4 PAGE 3 Miami, FL 33136-2506 6. The term of the Lease Agreement will expire on October 31, 2013. 7. From the date hereof, all references to the. Lease Agreement shall mean the Lease Agreement as amended by this Agreement. 8. The Lease Agreement is in all other respects ratified and confirmed. 9. The effective date of this Agreement will be the date it is approved by the City Commission, following execution by all other parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day of May, 2006. ATTEST: PRISCILLA THOMPSON CITY CLERK APPROVED AS TO FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney ASSIGNOR: Overtown Ventures, Inc. By: Ricardo Corona, President ASSIGNEE: L J GROCERY CORPORATION By: Rudy Lorenzo, President CITY OF MIAMI, a municipal corporation: JOE ARRIOLA CITY MANAGER APPROVED AS TO INSURANCE REQUIREMENTS LeeAnn I3relun, Acting Administrator Risk Management ASSIGNMENT, ASSUMPTION AND AMENDMENT NO. 4 PAGE 4 OVERTOWN VENTURES, INC., Plaintiff, vs. CITY OF MIAMI, etc., Derondant, IN THE CIRCUIT COURT OF THE 11 T t I JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. 94-13825 CA 22 AMENDED STIPULATE]) SETTLEMENT ANI) AC E au STIPUL 'PION WHEREAS, on September 20, 1996, the parties hereto, OVERTOWN VENTURES, INC. (hereinafter "OVERTOWN VENTURES") and the CITY OF MIAMI (hereinafter the "CITY"), entered into a STIPULATED SETTLEMENT, which was approved by the Court by AGREED ORDER, dated November 6, 1996 (hereinafter the STIPULATED SETTLEMENT AND AGREED ORDER, which is incorporated herein by reference); and WHEREAS, on November 29, 2001, OVERTOWN VENTURES filed a Motion to Enforce Stipulated Settlement (hereinafter the "SETTLEMENT LITIGATION"); and WHEREAS, on February 27, 2004, the court entered an ORDER ON OVERTOWN VENTURES' MOTION TO ENFORCE STIPULATED SETTLEMENT, which is incorporated herein by reference, and which allocated between the parties the responsibility to effect certain repairs and corrections outlined in said Order, and which was affirmed on appeal by the District Court of Appeal, and is final; and AMENDED STIPULATED SETTLEMENT AND AGREED ORDER CASE NO.: 94-13825 CA 02 WHEREAS, the CITY OF MIAMI has fully complied with its obligations outlined by the Court in its ORDER ON OVERTOWN VENTURES' MOTION TO ENFORCE STIPULATED SETTLEMENT; and WHEREAS, those repairs and corrections to be performed by OVERTOWN VENTURES still remain to be accomplished; and WHEREAS, OVERTOWN VENTURES has riot paid rent since October, 1999, has been notified of its default by the CITY, the CITY has filed suit to evict it from the premises in Case No. 06,0071 CA 06, and OVERTOWN VENTURES has asserted a COUNTCLA1M for damages (hereinafter the "EVICTION ACTION"); and WHEREAS, the parties, recognizing the uncertainty of litigation, and without the admission of fault or liability on the part of either party, are desirous of amicably settling their differences in both. the SETTLEMENT LITIGATION and the EVICTION ACTION, without the necessity of the further expenditure of costs, expenses or attorney's fees. NOW THEREFORE, OVERTOWN VENTURES and the CITY, by and through their respective undersigned attorneys, stipulated to the complete and final settlement of both the SETTLEMENT LITIGATION and the EVICTION ACTION, including the adequacy of consideration herein, on, the following terms. l . The above recitals are incorporated herein by reference, 2. The date of this STIPULATED SETTLEMENT shall be the date it is approved and entered as an Order by the Court. 3. Upon approval of this STIPULATED SETTLEMENT by the Court, the claims and causes of action asserted, or which could have been asserted, by either party in RC WI3 2 AMENDED STIPULATED SETTLEMENT AND AGREED ORDER CASE NO.: 94.13825 CA 02 both the SETTLEMENT LITIGATION, and the EVICTION ACTION, are hereby dismissed with prejudice and without costs, and are forever barred. 3. This STIPULATED SETTLEMENT shall, however, be contingent upon the execution by each party, and by the Third Party, L ,1 GROCERY CORPORATION, of the ASSIGNMENT, ASSUMPTION OF LEAST AGREEMENT, AND AMENDMENT NO. 4 (hereinafter "AMENDMENT NO, 4") attached hereto as Exhibit "A", which if not fully executed by all three parties within sixty (60) days of the date this STIPULATED SETTLEMENT is signed by the attorney for each parties, whichever is later, shall cause this STIPULATED SETTLEMENT to become null and void, and of no force and effeet, and the parties shall continue with the SETTLEMENT LITIGATION and EVICTION ACTION as if there had been no settlement. This STIPULATED SETTLEMENT shall not be submitted to the Court for entry until and unless AMENDMENT NO. 4 is fully executed by all three parties. 4. The Court shall retain jurisdiction of this cause to enforce the terms of this STIPULATED ,SETTLEMENT. DATED: RICARDO R. CORONA, ESQ. CORNONA LAW FIRM P.A. Attorney for OVERTOWN VENTURES 815 Ponce de Leon, Suite 301 Coral Gables, FL 33134 Tel: (305) 547.1234 Fax: (305) 5294971 By: RICARDO It. CORONA, ESQ. Fla. Bar No, 111333 RC WB DATED: ALE.IANDRO VILARELLO, CITY ATTY. WARREN B1 TTNER, ASST. CITY ATTY, Attorney for CITY OF MIAMI 444 S,W, 2nd Avenue, Suite 945 Miami, FL 33130-1910 Tel: (305) 416.1800 Fax: (305) 41h-1801 By: WARREN BITTNER, Asst. City Atty. Fla. Bar No. 370959 3- AMENDED STIPULATED SETTLEMENT AND AGREED ORDER CASE NO.: 94-13825 CA 02 AGREED ORDER THIS CAUSE coming on upon the foregoing Stipulation and the Court being fully advised in the premises, it is ORDERED and ADJUDGED that: 1. The foregoing Stipulation is approved and shall constitute the Order of this Court, ?. This case is hereby dismissed with prejudice, with each party to bear their own costs and attorneys fees. 3. All claims asserted herein by OVERTOWN VENTURES or the CITY, or which could have been asserted herein by OVERTOWN VENTURES or the CITY in this action, up to the date of this STIPULATED SETTLEMENT, are hereby released and are forever barred. 4. The Court takes judicial notice of the claims asserted by the CITY, and the counterclaims asserted by OVERTOWN VENTURES, in the EVICTION ACTION. All claims asserted by the CITY or OVERTOWN VENTURES in said action, or which could have been asserted in said action, up to the date of this STIPULATED SETTLEMENT, are hereby released and forever barred, The parties shall forthwith dismiss with prejudice the EVICTION ACTION, without costs or attorneys fees. 5. The Court shall retain jurisdiction, to enforce the terms of this STIPULATED SETTLEMENT. Ill Ill RC WB 4 AMENDED STIPULATED SETTLEMENT AND AGREED ORDER CASE NO.: 94-13825 CA 02 DONE and ORDERED in Chambers at Miami, Miami -Dade County, Florida, this day of June, 2006. Copies furnished to, Ricardo R. Corona, Esq Warren Blither, Asst. City Atty. RC WI3 CIRCUIT COURT JUDOS 5