Exhibit 10 (m)
LEASE AGREEMENT
THIS LEASE AGREEMENT made this 20th day of September 1985, between the
CITY OF MIAMI, a Municipal corporation of the State of Florida, hereinafter
called the "City", and BAYSHORE PROPERTIES, INC., a Florida corporation, with
offices at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, hereinafter referred
to as the "Company."
WITNESSETH:
WHEREAS, the City of Miami desires redevelopment and utilization of two
adjoining parcels of City-owned property known as the Xxxxxx Property and the
Miley Property in general accord with the Dinner Key Master Plan; and
WHEREAS, the City and Bayshore Properties, Inc. have entered into a
Lease Agreement dated the 30th day of Apri1, 1981. for the Xxxxxx Property and a
separate Lease Agreement for the Miley Property effective the 1st day of June,
1977; and
WHEREAS, both Lease Agreements were to expire in the year 2007; and
WHEREAS, because of complex litigation which precluded the development
and use of the Xxxxxx Property for a period in excess of three years the
Commission adopted Resolution No. 84-1450 which extended the terms of the Xxxxxx
Property lease agreement an additional three years to the year 2010; and
WHEREAS, Bayshore Properties, Inc. desires to redevelop the two parcels
as an integrated site to provide additional waterfront commercial and
recreational activities for the benefit of the public; and
WHEREAS, in order to develop the sites in a financially feasible manner
Bayshore
Properties, Inc. has requested that the two leases be combined into one lease
and said lease terms be extended for an additional 25 years from the year 2010;
and
WHEREAS, the Charter of the City requires that under certain
circumstances an extension or modification to an existing
lease, of waterfront property first be approved by a majority of the voters of
the City of Miami; and
WHEREAS, the City Commission has determined the requested modification
and extension is in the best interest of the public and herein directs that a
special municipal election be held; and
WHEREAS, on the 13th day of August, 1985, the requested modifications
and extension were approved by a majority of the voters; and
WHEREAS, the parties agree that upon execution of this Lease Agreement
the two lease agreements referred to hereinabove are hereby terminated and the
covenants, obligations and conditions contained therein are extinguished; and
WHEREAS, the City Commission in Resolution No. 85-7l7 upon the
recommendation of the City Manager, and subject to referendum, approved the
herein Lease Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, it is agreed by the parties hereto as
follows:
1. DESCRIPTION OF PREMISES: The City hereby leases unto the Company for
the purpose and under the conditions hereinafter set forth, the following real
property and bay bottom lands (hereinafter referred to as the "Property"),
located on Biscayne Bay, City of Miami, Dade County, Florida, as described in
Exhibit A attached hereto and made a part hereof.
2. TERM: The term of this Lease Agreement shall commence on the 30th
day of September , 1985, and shall end on the 31st day of May, 2035.
3. USE OF PROPERTY: The Company will develop, manage, and promote the
property to prospective tenants in such a manner that will offer the Essential
Services (as hereinafter defined) required and encourage public enjoyment, use,
and participation so as to make the project financially feasible to both the
Company and the City, as well as to reach the objectives of the Dinner Key
Master Plan.
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The Company covenants and agrees to provide each and every Essential
Service as required in its use of the Property, as hereinafter listed, if
allowed by law; and subject to the issuance of a certificate of use and
occupancy with City zoning approval. The Essential Services will be provided
during the entire term of this lease (subject to interruption for reasonable
periods if due to a loss of a tenant or concessionaire providing Essential
Services) unless and until the Company files a request in writing for permission
to discontinue a use or service and the reasons therefor and said permission is
granted by the City Manager. The City Manager shall only permit discontinuance
of an Essential Service or use if he or she finds, that it is no longer
essential and that the discontinuance of said Essential Service(s) or use is in
the greater interest of the public.
Essential Services required in the use of the Property:
1. A restaurant;
2. Retail facilities;
3. A marina, including. an adequate number of spaces for transient vessels;
In addition, the following list of uses may be provided for by the Company or
the tenant(s) of the Property:
(a) A refreshment stand;
(b) Boat rentals;
(c) Bait and tackle shop;
(d) Convenience food store for the benefit of marina
tenants;
(e) Marine supply store, including diving gear;
(f) Outboard motor sale and incidental service;
(g) Marine clothing sales;
(h) Marine furniture sales and incidental manufacturing;
(i) Boat tours;
(j) Fishing area;
(k) Sporting goods store;
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(1) Antique store;
(m) Art galleries and book store open to the general public;
(n) Bakery;
(o) Bicycle sales and repair;
(p) China and crockery;
(q) Confectionery or ice cream store;
(r) Clothing;
(s) Photographic sales;
(t) Gift shop;
(u) Hobby shop;
(v) Jewelry and watch sales, repair and service;
(w) Leather goods - sales and incidental assembly and repair;
(x) Lounges;
(y) News stand or sundry;
(z) Xxxxxx shop, beauty parlor, and shoe polishing stand;
(aa) Travel and ticket agency;
(ab) Sailmaker;
(ac) Arts and crafts;
(ad) Office for management and rental of the Property;
(ae) Marine fuel pumps;
(af) Any related or allied uses to the above if approved by the City
Manager which approval may not be unreasonably withheld or
delayed.
All Marina operations, including rental of all boat slips shall be
directly controlled and operated by the Company unless the consent of the City
Manager is given in writing to do otherwise on such conditions as are mutually
agreeable to the City Manager and the Company.
4. NON-DISCRIMINATION: The Company agrees that there will be no
discrimination under any circumstances against any person
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on account of race, color, sex, religious creed, ancestry, or national origin
desiring to use the Property and the improvements. Any such acts will be
considered a default subject to the terms and conditions of Paragraph 18, and it
is expressly understood that upon final determination of such discrimination the
City shall have the right to terminate this Lease Agreement. The Company agrees
that minorities shall participate in the development of the Project, including
construction contracts and jobs as well as in the work force created by the
development. Minorities shall have priority in the leasing of all tenant spaces.
5. PUBLIC ACCESS TO THE WATERFRONT: The public shall be allowed access
to the waterfront areas of the Property and all facilities located on the
Property shall be available to the public, subject to the right of the Company
to establish and enforce rules and regulations to provide for the orderly
operation, security, and public safety of said facilities. A copy of all rules
and regulations and any changes occurring therein shall be subject to the
approval of the City Manager, which approval shall not be unreasonably withheld
or delayed.
6. REDEVELOPMENT PLANS: The Company agrees to redevelop the property in
substantial accordance with plans and specifications furnished in its public
proposal (Exhibit "B") as may be allowed by law. The redevelopment of the
docking facilities is anticipated by the Company. If by law dredging and/or land
fill is not permitted, this will not substantially alter the remaining overall
project, and a boardwalk would still border the bay-front. The developmental
plans of the Company must complement the overall design and planning of the
Coconut Grove Dinner Key area. Any waiver by the City of the execution of any
part of the proposed plans shall not be construed to be a waiver of any other
part of such plan. The Company agrees that no structure of any kind now existing
on the premises shall be altered or any new structure erected upon the Property
unless the plans therefor shall have been approved by the City Manager, which
approval
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shall not be unreasonably withheld or delayed. Construction shall commence
within eighteen (18) months of the date of execution of said Agreement and shall
be completed within five (5) years from this date unless permit delays or other
delays are caused by the City, and in such case, this eighteen (18) month and/or
five (5) year period shall be extended by the same time period (the "Delay
Period").
Composite Exhibit "B" attached hereto describes the plans and
specifications furnished in the Company's proposal. It is agreed that the
improvements to the Property, as described in Paragraph 1, and to be made by the
Company, will require the expenditure of not less than Two Million Six Hundred
Thousand Dollars ($2,600,000.00) (the "Improvement Expenditure"). This sum does
not include the expenditure for improvements to a parking site or sites as
described in Paragraph 11, said sum, which is not to be less than Four Hundred
Thousand ($400,000.00) Dollars (the "Parking Sites Expenditure"), which Parking
Site's Expenditure is to be in addition to the Improvement Expenditure. The
Company will submit copies of paid invoices corresponding to the Improvement
Expenditure and the Parking Sites Expenditure in accordance with Paragraph 15.
The City agrees, within ninety (90) days after the execution of this
lease, to provide adequate water and sanitary sewage lines to the property line
in accordance with normal City services. The Company shall have the
responsibility of ensuring and providing for adequate electrical power, gas, and
telephone service to the property. The Company shall provide the required
ornamental landscaping and lighting, all in accordance with the redevelopment
plan.
The boardwalk, as proposed in the Company's proposal document
(Composite Exhibit "B"), shall be constructed in accordance with the design
standards set forth in the Dinner Key Master Plan and shall be constructed by
the Company. The public shall have free and unobstructed use of the boardwalk at
all times. Said boardwalk shall be completed prior to the issuance of a
certificate of occupancy for the proposed project.
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7. PERMITS: The Company agrees to have final' plans prepared which will
comply with all pertinent provisions of the South Florida Building Code and the
ordinances, rules and regulations of Dade County and the City of Miami. The
Company agrees that no structure of any kind now existing on the Property shall
be altered or a new structure erected upon the Property unless the plans for
said construction have been approved by the City Manager, which approval shall
not be unreasonably withheld or delayed.
As a condition to this Lease the Company shall obtain at its sole cost
and expense all permits, approvals, and related documents from any and all
Federal, State, and local governments and agencies requiring them for the
construction, or construction of any new docking or upland Company facilities.
The Company shall apply for and obtain all permits or approvals necessary to
commence construction, dredging, and/or filling on the Property.
CONSTRUCTION SECURITY BOND: The Company shall, prior to the
commencement of construction or the awarding of any contract for construction on
the Property by the Company or any agent of the Company, furnish the City with a
Statutory Payment and Performance Bond (the "Construction Bond"), in the amount
of Seven Hundred Fifty Thousand ($750,000.00) Dollars, naming the City as the
owner and the Company as the principal. The conditions of the Construction Bond
shall be to insure that the Company will: (1) promptly make payment to all
claimants, as defined in Section 255.05 (1) Florida Statutes, supplying the
principal with labor, materials, or supplies, used directly or indirectly by the
principal in the prosecution of the work provided for in the Agreement; (2) pay
the owner all losses, damages, expenses, costs, and attorney's fees, including
appellate proceedings, that the owner sustains because of a default by the
principal under the Agreement, and; (3) perform the guarantee of all works and
materials furnished under the Agreement for the time specified in the Agreement.
The Construction Bond may be terminated, with the written approval of the City
Manager of the City, at such time as
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the proposed construction project is completed arid fully operational and open
to the public; and satisfactory evidence is provided by the Company to the City
Manager that all requirements of the Construction Bond have been satisfactorily
concluded. The form of the Construction Bond shall be as approved by the City
Finance Department, Risk Management Division, in accordance with the
requirements of Chapter 255, Florida Statutes, and Miami City Code ss.18.57.
9. LICENSES: The Company agrees to obtain and pay for all required
licenses necessary for the proposed operation and conduct of its business, and
agrees to comply with all laws governing the responsibility of an employer with
respect to persons employed by the Company. It will be the responsibility of the
Company to obtain the necessary liquor licenses to permit the sale of alcoholic
beverages as permitted by this Agreement. The Company may sell all alcoholic
beverages incidental to the restaurant but only beer and wine sales will be
permitted from the refreshment stands and convenience food store. All alcoholic
beverages sold in accordance with the provisions of this Agreement shall be sold
in accordance with applicable State Beverage Regulations .
10. TAXES:During the term hereof, the Company covenants and agrees to
pay all taxes of whatsoever nature lawfully levied or assessed against the
Property and improvements, property, sales, rents or operations thereon,
including, but not limited, to, ad valorem taxes. Payment thereof shall commence
with and shall include taxes assessed for the current year. The Company further
covenants and agrees to pay all of the said taxes, if any, lawfully assessed, on
such dates as they become due and payable. The failure of the Company to pay the
taxes as aforesaid shall constitute grounds for the immediate cancellation of
this Lease Agreement by the City, subject to the terms and conditions of
Paragraph 18.
11. PARKING: The Company shall meet the lawful off-street parking
requirements for the use of the Property. The City shall provide one or more
sites for said off-street parking. The
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Company will develop and construct the parking on such sites at its expense and
according to the standard specifications of the City. All parking so developed
shall be used in common with the public but shall count for required off-street
parking of Company. The Company shall be allowed by the City to use the area
shown on Exhibit "C" to meet its required parking until such time as the City
Commission requires the Company to vacate because of imminent construction
activity on the area as a result of the City Commission's approval of other
development for the area or if required to do so by judicial action. In either
case the City Commission shall provide the required parking in the Dinner Key
area. The Company shall provide a tram service during normal hours of operation
from the parking sites to the subject Property, which service shall run a
minimum of twelve (12) times daily from the parking sites to the Property. The
tram service shall be provided at the sole cost and expense of the Company, its
agents or assigns. The Company shall indemnify the City in the operation of said
tram service as provided in paragraph 23 and shall provide the City with
adequate insurance coverage, which is usual and customary to cover an exposure
of this type for the tram service, subject to the approval of the Department of
Finance, Risk Management Division.
12. EASEMENT FOR WATER TAXI OR TRAM STATION: In the event the City
decides to provide or grant a franchise to provide a tram or people mover system
for the Dinner Key area, the Company agrees to permit the City to establish a
station and roadway for access for said system on the Property so long as the
same does not unreasonably interfere with the operations of the Company or its
tenants under this lease. Any costs in adjusting the site to accommodate said
system shall be borne by the City or its franchisee as the case may be. Location
of said facilities as described above are subject to approval by the Company
which the Company shall not unreasonably withhold or delay.
13. CONSIDERATION:
I. Minimum Annual Guaranteed Rental: As consideration for the lease of
the said property, the Company shall pay to the
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City the greater of: (1) the Minimum Annual Guaranteed Rental as
hereinafter defined; or (2) Percentage Rental as hereinafter defined. The
Minimum Annual Guaranteed Rental shall be payable as follows: (a) beginning upon
the execution of this Agreement, Two Hundred Forty-Seven Thousand Five Hundred
Eighty-Six Dollars ($247,586.00) per annum; (b) beginning twelve (12) months
after the execution of this Agreement, Two Hundred Fifty-Seven Thousand Five
Hundred Eighty-Six Dollars ($257,586.00) per annum; and (c) beginning
twenty-four (24) months after the execution of this Agreement and through the
year 2010, Two Hundred Seventy-Seven Thousand Five Hundred Eighty-Six Dollars
($277,586.00) per annum. The Minimum Annual Guaranteed Rental shall become, for
the remainder of this Agreement, the average of the immediately preceding three
(3) years rental payments to the City. The Company shall pay on a monthly basis
one-twelfth (1/12th) of the Minimum Annual Guaranteed Rental on the first day of
each month in advance. For permanent capital improvements over Three Million
Dollars ($3,000,000.00), a credit towards rental payments, not to exceed Three
Hundred Thousand Dollars ($300,000.00) in any one (1) year, shall be given,
dollar for dollar, amortized over the first ten (10) years following completion
of construction.
II. Percentage Rental: As an alternative amount of consideration in
lieu of the Minimum Annual Guaranteed Rental, the Company shall pay the
Percentage Rental based on the following formulae throughout the entire term of
this agreement:
(a) Eight (8%) per cent on all gross receipts up to One Million
($1,000,000.00) Dollars in gross receipts per lease year.
(b) Ten (10%) per cent on all gross receipts in excess of One Million
($1,000,000.00) Dollars per lease year.
Percentage Rental shall be determined annually and shall be paid monthly, if
applicable within twenty-five (25) days from the end of the preceding month.
Adjustments to the rental shall be made at the end of the
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lease year based upon the annual percentage rent set forth herein. The term
"gross sales" as used herein shall be considered synonymous and interchangeable
with the term "gross receipts" and shall be construed to include all income,
whether collected or accrued, from all business conducted on the Property by
Company, including but not limited to, the rental of space, the sale of food and
beverage, goods and services, or from any source whatsoever, but excluding
receipts from dockage and gas sales.
Gross sales and/or gross receipts shall only include revenues and/or
percentages of revenues collected or accrued by the Company, and shall be
computed on the basis of gross receipts by the Company only. (It shall not be
computed on the basis of gross receipts of tenants, lessees, or sublessees of
the Company (fuel sales excepted)). However, any sales taxes imposed by law
which are separately stated to and and paid by the purchaser or user, and are
directly payable to a taxing authority by the Company, shall be excluded from
gross receipts. Gross sales and/or gross receipts shall also include any
revenues, whether accrued or collected, attributable to any direct or indirect
participation by the Company or any of its officers or principals in the
business or enterprise of another entity, person or tenant of the property
besides the Company per se, to the extent that such participation entitles
Company, its officers or principals to receive remuneration; and further
provided that such other business or enterprise is done on or "in connection
with" the Property provided, however, that the term "in connection with" shall
not include revenues which result merely from the physical adjacency of location
or merely from joint promotional effort and advertising.
The Company shall include in every remittance to the City, of the
monthly consideration as required, the applicable amount of State of Florida
sales and use tax.
The Company covenants and agrees that goods and services offered and
sold on the subject property by the Company, its
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tenants, lessee or sublessee, shall be regularly audited, during normal
business hours and in a manner in accordance with Paragraph 16, by the City, and
that the full amount of gross receipts attributable to the subject property
shall not in any way be diverted to any other business or enterprise. For
permanent capital improvements over Three Million Dollars ($3,000,000.00), a
credit towards rental payments, not to exceed Three Hundred Thousand dollars
($300,000.00) in any one (1) year, shall be given, dollar for dollar, amortized
over the first ten (10) years following completion of construction.
III. Special Percentage Rental on Fuel Sales and Dockage: In addition,
as separate and additional consideration due the City, not included in the
hereinabove Percentage Rental, or the Minimum Annual Guaranteed Rental, the
Company shall also pay to the City on the first day of each month, throughout
the term of this agreement the following:
Two and a half cents ($0.025) per gallon, of fuel sold by the
Company or its subtenant from the Property in the prior month, and
fifteen (15%) per cent of gross receipts which are collected by the
Company from dockage rental and dry storage of boats at the Property
in the prior month.
14. PERFORMANCE BONDS: The Company shall post a performance bond in the
amount of Ten Thousand ($10,000.00) Dollars with the City within thirty (30)
consecutive calendar days after the execution of this Agreement to stand as
security for the performance of the Company's obligations hereunder. Said
performance bond shall be posted in cash or issued by a surety company
authorized to do business in the State of Florida and shall be refundable at the
termination of this Agreement if all terms and conditions of this Agreement have
been satisfied. If the performance bond is on an annual coverage basis,
certified evidence of renewal for each succeeding year shall be submitted to the
Department of Finance, Risk Management Division, thirty (30) days prior to the
termination date of the existing performance bond.
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15. ACCOUNTING: The Company shall report all "Gross Receipts" or Gross
Sales on or before the 25th day of each month beginning at the completion of the
first month after the execution of this Lease. Each and every month thereafter,
reports shall be submitted to Property and Lease Management Division, Department
of Finance of the City, or at such other place or places as may be designated
hereafter by the City. The Company shall provide a statement in certificate form
signed by a duly authorized officer of the Company, setting forth in such detail
as it might be necessary or considered necessary by the Director of Finance of
the City to determine the Gross Sales per month for the Property. An additional
detailed report of Gross Sales for the year in conjunction with the payment of
the Annual Percentage Rent shall be submitted at the end of the lease year for
the purpose of computing the Annual Percentage Rental.
The Company shall submit quarterly reports commencing within thirty
(30) days after the first quarter of the Lease Agreement, and continuing during
the effective period thereof, and each and every quarter thereafter, identifying
expenditures on the part of the Company for making improvements to the Property,
equipment purchases and improvements and expenditures related to improving the
facility's amenities and services of the Property. Such reports shall continue
during the term of this lease, in order to provide proper accounting in
accordance with Paragraphs 15 and 19 of this lease.
16. BOOKS , RECORDS , ACCOUNTS AND STATEMENTS : The Company shall keep
true, accurate, and complete books, records, and account of all sales, rentals,
and business being transacted upon the Property. Further, the Company shall,
upon demand make available all books and records, leases, agreements, reports
and financial statements in any way pertaining to the Property to authorized
representatives of the Division of Internal Audit, or such other authorized
representative as the City Manager of the City shall designate at the Property
during normal business hours. The Internal Auditing Department of the City shall
be furnished any and all records of the Company necessary to make a
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full and complete audit of the books and operations of the facilities described
in this Lease Agreement.
In addition the Company will provide the City with all sales tax
records from any and all business conducted on the Property.
EXAMINATION OF THE PREMISES BY THE CITY: The Company agrees to permit
the City, by its City Manager's designated personnel, to enter upon the Property
at any time for any purpose the City Manager of the City deems necessary or
incidental to or connected with the performance of City's duties and obligation
hereunder or in the exercise of its rights or functions.
18.DEFAULT: If the Company abandons or, vacates the Property prior to
the expiration of the term hereof, or
If the Company fails to make the rental payments as set forth herein
and said payment is not made within thirty (30) days after written notice is
given to the Company, or
If the Company fails to commence construction or complete same in
accordance with the requirements of Paragraph 6 of this Agreement, or
If the Company fails to perform in accordance with any of the other
terms and conditions herein contained, and such default is not cured within
thirty (30) days after written notice is given to the Company or if the nature
of the default is such that the Company cannot reasonably cure same within said
period and the Company fails to take diligent measures to commence and pursue
the cure thereof,
Then the Company shall be in default and the City may re-enter the
Property and terminate this lease in any manner then permitted or provided by
law. At such time, all improvements erected on the Property shall revert to the
City.
In addition to the right to re-enter and terminate the lease, the City,
in case of a breach in the payment of rent or in case of the breach of any other
of the Company's obligations hereunder, shall have all other remedies, including
but not limited to the right to operate the facility and collect rents directly
from tenants or other remedies afforded by the laws of
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the State of Florida, including but not limited to the right to xxx for and
collect rent, and to bring distress proceedings. Said remedies may be pursued
concurrently or consecutively and the resort to one shall not be considered an
election.
19. NOTICES: All notices and rental payments shall be sent to the
parties at the following addresses:
TO THE CITY: The City Manager
The City of Miami, Florida
X.X. Xxx 000000
Xxxxx, Xxxxxxx 00000
TO THE COMPANY: Bayshore Properties, Inc.
Xxxxx Trainer, President
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
The City or the Company may change such mailing addresses at any time
upon giving the other party written notice. All notices under this Lease
Agreement must be in writing and shall be deemed to be served when delivered to
the address of the addressee.
20. ATTORNEYS' FEES: In the event that it is deemed necessary for
either party to file a lawsuit in the appropriate court of law in order to
enforce any of the terms or provisions of this Lease Agreement, then the
prevailing party shall be entitled to reasonable attorneys' fees.
21. INSURANCE: The Company shall maintain during the term of this
Agreement the following insurance subject to the approval of Risk Management
Division, Department of Finance of the City:
(a) Public Liability, including Products Liability, Insurance in
the amounts of not less than $1,000,000 per occurrence for death or
bodily injury and not less than $50,000 per occurrence for property
damage.
(b) A standard Fire, Lightning, and Windstorm Insurance policy on
the premises and all furniture, fixtures, equipment, and improvements,
including the perils of fire, extended coverage, and other perils, for
the cash value thereof.
(c) Automobile Liability Insurance covering all owned, nonowned,
and hired vehicles in amounts of not less than $100,000 per accident
and $300,000 per occurrence of bodily injury and $10,000 property
damage.
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(d) Liability insurance covering the operation of the tram
service between the designated parking sites and the Property which is
considered adequate at the time of the inception of the service and
meets the approval of the Department of Finance, Risk Management
Division.
(e) The City shall be named as an additional insured under the
policies of insurance as required by this Agreement.
(f) The City shall be given at least thirty (30) days' advance
written notice of cancellation of said policies or any material
modifications thereof.
(g) Certificates of insurance shall be filed with the Finance
Department, Risk Management Division, of the City of Miami.
(h) The insurance coverage required shall include those
classifications as listed in standard liability insurance manuals
which most nearly reflect the operations of the Company.
(i) All insurance policies shall be issued by companies
authorized to do business under the laws of the State of Florida and
must be rated at least "A" as to management and Class "X" as to
financial strength, all in accordance with A. M Best's Key Rating
Guide, latest edition.
(j) The City reserves the right to amend the insurance
requirements according to usual and customary standards in the
Insurance Industry as circumstances dictate in order to protect the
interest of the City in this Lease Agreement.
(k) The Company shall furnish certificates of insurance to the
City prior to the commencement of operations, which certificates shall
clearly indicate the Company has obtained insurance in the type,
amount, and classifications as required for strict compliance with
this covenant and shall be subject to the approval of the Department
of Finance, Risk Management Division.
(1) The policy shall be endorsed as follows: "It is agreed that
in the event of any claim or suit against the insured for damages
covered by this policy, the insurance company will not deny liability
by the use of a defense based on governmental immunity".
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22. INDEMNIFICATION: The Company covenants and agrees that it shall
indemnify and save harmless the City from and against any and all claims, suits,
actions, damages or causes of action arising during the' term of this Lease
Agreement for any personal injury, by reason of or as a result of, the Company's
occupancy thereof, and from and against any orders, judgments or decrees, which
may be entered thereon, and from and against all costs, attorneys' fees,
expenses, and liabilities incurred in and about the defense of such claim and
the investigation thereof; provided, however, that before the Company shall
become liable for said cost, the Company shall be given notice in writing that
the same are about to be incurred and shall have the option itself to make the
necessary investigation and employ counsel of the Company's selection for the
necessary defense of any claims. The City may, at its option, retain its own
counsel at its sole cost and expense in addition to the provisions hereinabove
set forth.
23. DAMAGE OR LOSS TO COMPANY'S PROPERTY: The Company assumes all risk
of damage or loss to the Property for any cause whatsoever, which shall include,
but not be restricted to, any damage or loss that may occur to merchandise,
goods, equipment, or other property covered under the Lease Agreement, if lost,
damaged or destroyed by fire, theft, rain, water or leaking of any pipes or
waste water in or about said Property or from hurricane or any act of God, or
any act of negligence of any user of the facilities, or occupants of the
Property or any person whomsoever.
24. DESTRUCTION OF PROPERTY: The Company agrees to keep all
improvements on the Property insured to the full insurable value thereof and
shall provide to the City a standard fire insurance policy insuring against loss
or destruction for all of the perils of fire, extended coverage and malicious
vandalism. Subject to the rights of the Company's first mortgage lender, in the
event of loss or destruction due to any cause whatsoever, all insurance monies
shall be payable to the City, to be held by it until the Company furnishes a
bond to the City for construction or repair, as the case may be, of like tenor
and effect and under the same
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conditions as the bond hereinbefore required in the case at the initial
redevelopment. Upon the furnishing of such bond, the City shall promptly pay to
the Company all insurance proceeds. It is provided, however, that should the
cost of repairs not exceed the sum of $25,000 then the City shall pay over to
the Company, without the necessity of any bond, the amount of insurance policies
thereafter collected by the City. The Company shall furnish to the City
duplicate originals of all insurance policies required under this Lease
Agreement. The insurance policy required hereunder shall be approved by the City
as to form, amount, and insurer or insurers and shall provide that all proceeds
shall be payable to the City as provided in the Lease Agreement. All
construction and repairs shall be effected as promptly as circumstances permit.
Plans for reconstruction or repairs shall be submitted to and approved
by the City Manager, and permits therefor and inspection fees shall be procured
and paid for by the Company. If within one hundred eighty (180) days after any
such destruction or damage, the Company fails `to furnish said plans and bond to
the City, then all insurance monies collected by the City shall be and become
the property of the City and this Lease Agreement shall be cancelled and
terminated automatically.
25. BUILDING MAINTENANCE: The Company accepts the building and grounds
in their present condition and without any warranty by the City as to their
condition. The Company, at its sole cost and expense, shall maintain the grounds
and the interior and exterior of the buildings. The Company agrees to provide
adequate janitorial services. The Company further agrees to maintain the
buildings and Property in a condition of proper cleanliness, orderliness, and
state of attractive appearance at all times. If the buildings and Property are
not kept reasonably clean and attractive in appearance, the Company shall be so
advised. Corrective action shall be taken by the Company within seven (7) days
time. In the event such action is not taken, the City shall have the right to
make repairs or cause the Property
-18-
to be cleaned and the Company shall then be required to reimburse the City
within thirty (30) days for said cost and charges.
26. UTILITIES: The Company shall pay for all utilities consumed on the
Property as well as connection charges thereof and waste collection fees, if
any. The Company further agrees to place all utilities required by its use of
the leased Property underground.
27. PURE FOOD AND SANITARY LAWS: The Company shall abide by all pure
food and sanitary laws and the employees involved in the handling or sale of any
food or beverage shall all possess health certificates. All food and beverage
sold shall be of the highest grade and quality standards as established by law.
28. CONFORMITY TO THE LAW: The Company covenants to comply with all
laws, ordinances, regulations, deed restrictions and orders of Federal, State,
County and Municipal authorities pertaining to the Property and operation
thereon.
29. DOCKAGE RATES: The Company agrees to maintain the dock rates at a
level not to exceed those charged by comparable marinas in the Dinner Key Area
providing like services.
30. PLEDGE OF LEASEHOLD INTEREST: The Company may pledge this leasehold
interest as security for' industrial development bonds provided the quality of
the assignee or pledge is approved by the City Manager which approval may not be
unreasonably withheld. This section shall under no circumstances be construed to
require the City to participate in the financing or the proposed redevelopment
improvements. The City shall fully cooperate with the Company in respect to the
reasonable requirements of Company's lender.
31. ASSIGNMENT AND SUBLETTING OF PREMISES OR TRANSFER OF STOCK: The
Company shall not at any time during the term of this Lease agreement assign
this Lease Agreement or any portion or part thereof, except and by virtue of
written authorization granted by the City Manager of the City. Said
authorization shall not be unreasonably withheld or delayed. This clause shall
not apply to sub-leasing space to tenants of the Company.
-19-
The Company is a corporation authorized to do business in the State of Florida,
and agrees that it will not transfer any stock in the corporation or change
managers subsequent to entering into this Agreement or during the term of this
Agreement until such transferor change is approved by the City Manager of the
City, which approval shall not be unreasonably withheld.
32. BINDING ON SUCCESSORS: The terms and provisions of the Lease
Agreement shall, subject to the provisions of Paragraphs 17 and 23, be binding
and inure to the benefit of the successors and assigns respectively of the City
and the Company.
33. INVENTORY: All fixtures, furnishings, furniture, and equipment, if
any, in or upon the Property and their condition will be inventoried before
occupancy by the Company. The Company will maintain fixtures, furnishings,
furniture and equipment, if any, in good and operable condition during the term
of this Agreement at its sole cost and expense, and that said Property shall be
deemed in its sole custody and care. In the event any of the aforementioned
items are lost, stolen, or damaged, they shall be replaced or repaired at the
cost and expense of the Company, ordinary wear and tear excepted, during the
term of this Agreement. The Company may acquire any additional fixtures,
furnishings, furniture, or equipment that the Company deems necessary for the
operation of the Property at the Company's own expense, consistent with the
purposes for which the Property is leased.
34. OWNERSHIP OF IMPROVEMENTS: All improvements, furnishings and
equipment constructed or installed on the Property by the Company shall be
personal property and Company shall have legal title thereto during the term of
this Lease. Upon the expiration or termination of this Lease, title to all
permanent improvements constructed on the premises shall vest in the City. Title
to all supplies, furnishings, inventories, removable fixtures and removable
equipment and other personal property shall remain vested with the Company and
the Company shall have the right to remove such items from the premises unless
the Company is in default hereunder.
-20-
35. EXPIRATION: At the expiration of the term of this Lease Agreement
or at its prior termination, all permanent improvements placed on the property
by the Company shall be and become the property of the City and the Company
shall quietly and peaceably deliver the same to the City.
36. ENTIRE AGREEMENT: A waiver of the breach of any of the covenants of
this Lease Agreement shall not be construed to be a waiver of any other covenant
or any succeeding breach.
The provisions of this Lease Agreement contain the entire understanding
of the parties hereto concerning the subject matter hereof. No modifications,
release, discharge or waiver of any of the provisions hereof shall be of any
force and effect unless signed in writing by the City Manager of the City.
37. CAPTIONS: The captions contained in this Lease Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or prescribe the scope of this Lease Agreement or the intent of any
provisions thereof.
IN WITNESS WHEREOF, the parties herein have executed this Agreement the
day and year first above written.
CITY OF MIAMI, FLORIDA,
a municipal corporation
By: /s/ illegible
ATTEST: --------------------------
/s/ Illegible CITY MANAGER
-----------------------------------
CITY CLERK
BAYSHORE PROPERTIES, INC.,
a Florida corporation
/s/ illegible By: illegible
------------------------------------- --------------------------
PRESIDENT
(SEAL)
ATTEST:
/s/ illegible
------------------------------------
SECRETARY
APPROVED AS TO FORM AND CORRECTNESS:
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
XXXXX X. XXXXXXXXX
CITY ATTORNEY
-21-
MEMORANDUM OF UNDERSTANDING
This Memorandum entered into this 30thday of August, 1991, by and
between Grove Marina Market, Ltd., a Florida limited partnership ("GMM"),
Bayshore Restaurant Management Corp., a Florida corporation ("BRMC"), Terremark
Stone Crabs, Inc., a Florida corporation, ("Stone Crabs") and the City of Miami,
a municipal corporation of the State of Florida, (hereinafter referred to as the
"City" ).
WHEREAS, the CITY and Bayshore Properties, Inc., a Florida corporation
("Bayshore" ) entered into a Lease Agreement dated September 20, 1985, (the
"Lease"); and
WHEREAS, Bayshore assigned its rights and obligations to GMM pursuant
to an Assignment of Lease dated March 16, 1986 (the "Assignment"); and
WHEREAS, GMM entered into a sublease agreement with Marina Restaurant,
LTD., a Florida limited partnership ("MR") on March 14, 1986, (the "MR
Sublease") a true and correct copy of which is attached hereto and made part
hereof as Exhibit "A" whereby GMM subleased to MR a certain portion of the
premises encumbered by the Lease; and
WHEREAS, the MR Sublease was assigned by MR to BRMC on March 13, 1991
(the "Sublease Assignment"); and
WHEREAS, BRMC entered into an agreement dated the 28th day of April,
1991 to sublease a portion of the premises encumbered by the Lease, as more
specifically described in Exhibit "B" attached hereto, (the "Subleased
Premises") to Stone Crabs as evidenced by a true and correct copy of the
sublease between BRMC and Stone Crabs which is attached hereto and made part
hereof as Exhibit "C", (the "Stone Crabs Sublease"); and
WHEREAS, the parties hereto wish to clarify the meaning of certain
provisions of the Lease in order to properly apply said provisions in the manner
originally intended by the parties;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto mutually agree as follows:
-1-
I.
ASSIGNMENT AND SUBLETTING OF PREMISES:
It is acknowledged by the parties hereto that the language set forth in
Section 31 of the Lease that reads "This clause shall not apply to sub-leasing
space to tenants of the Company[]" means that the Company may sublease space
without approval of the City Manager to only those tenants who are not providing
Essential Services (as that term is defined in the Lease). Specifically, the
parties hereto agree that the City Manager's written consent shall be necessary
for the valid subleasing of the Restaurant, Marina and Retail Facilities
portions of the Property. The term "Retail Facilities" as used herein shall mean
all of the tenant spaces included in the Property other than the Restaurant and
the Marina. However, the parties hereto agree that the Company may sublease, to
individual tenants, separate and distinct spaces within the Retail Facilities
for any valid purpose without the authorization of the City Manager. It is the
subleasing of the Retail Facilities as a whole which requires the Manager's
authorization prior to being subleased. It is acknowledged by the parties hereto
that, for purposes of clarification, the term "Restaurant" means Monty's Raw
Bar, located on the ground floor of the Property, as such establishment
currently exists or as it may be expanded in the future. The Company agrees that
it shall not sublease, assign or otherwise use the Property for any purpose that
requires an occupational license for a restaurant without the prior written
authorization of the City Manager, other than the Restaurant or the Subleased
Premises. In light of the acknowledgments pertaining to Section 31, all parties
hereto agree that the Sublease and the Sublease Assignment shall be subject to
the approval of the City Manager and that the gross sales and/or gross receipts
of any subtenant of the Company subleasing the Restaurant and/or the Marina
portions of the Property at any particular time shall be used to compute the
Percentage Rental payable by the Company to the City pursuant to Section 13 of
the Lease.
-2-
II.
DETERMINATION OF PERCENTAGE RENTAL:
Company agrees that the Percentage Rental, as said term is defined in
the Lease, shall be paid monthly on the first day of each month in advance
during the term of the Lease. The amount to be paid each month in any given
Lease year shall be equal to the annual gross sales, as said term is defined in
the Lease, for the immediately preceding lease year, multiplied by each
applicable percentage rate provided for in the Lease, divided by twelve (12).
As an example, which is included herein for purposes of clarification
only, if the annual gross sales for the Lease year ending September 30, 1995,
are Twelve Million Dollars ($12,000,000) and the applicable percentage rate is
ten percent (10%), monthly payments for the Lease year commencing October 1,
1995 shall be equal to ten percent (10%) of Twelve Million Dollars divided by
twelve (12),which equals One Hundred Thousand Dollars ($100,000) ($12,000,000 x
..10 / 12 = $100,000).
III.
CREDIT TOWARDS RENTAL PAYMENTS FOR PERMANENT CAPITAL IMPROVEMENTS
OVER THREE MILLION DOLLARS ($3,000,000):
An annual credit exclusively applicable towards each Lease year's
rental payments, (the `Credit") not to exceed Three Hundred Thousand Dollars
($300,000) in any one year, shall be given annually to Company for the ten (10)
year period commencing with the Lease year 1989-1990, which has been determined
by the City to be the first year following completion of construction of
permanent capital improvements, and ending with the Lease year
1998-1999. Company shall apply the Credit by deducting an amount not to
exceed the sum of Twenty-Five Thousand Dollars ($25,000) each month from the
monthly consideration due the City. The Credit shall be applicable to either the
Minimum Annual Guaranteed Rental or the Percentage Rental, as the case may be,
as said terms are defined in the Lease.
-3-
IV.
OUTSTANDING CONSIDERATION:
The parties hereto acknowledge that the City is due the following
consideration pursuant to Section 13 of the Lease:
1. Final Audit for the Lease year 1989-1990 - City hereby acknowledges
that invoice Number 42-2965 forwarded to GMM on May 30, 1991 in the amount of
Three Hundred and Twenty-Four Thousand Seven Hundred and Sixty Four Dollars
($324,764) have been paid by the Company in the form of an increase in the
monthly payments paid the City for the lease year 1990-1991, and therefore such
invoice is declared null and void except for any amounts which may be a part of
the outstanding monthly rental as shown in Subsection IV(2) of this Memorandum.
2. Monthly Rental - The parties hereto agree that the City is owed all
rental payments for the months of June, July, August and September, 1991. (The
"Payments Due"). The Payments Due, in the total amount of Two Hundred Forty One
Thousand One Hundred and Sixteen Dollars ($241,116), as of September 30, 1991,
determined in accordance with the terms of this Memorandum and the Lease, shall
be paid to the City over a period of twelve (12) months, commencing October 1,
1991 and ending September 30, 1992, at the rate of Twenty Thousand Ninety-Three
Dollars ($20,093) each month until paid in full. The Payments Due shall be in
addition to the payment of all other considerations to be paid pursuant to
Section 13 of the Lease and the relevant sections of this Memorandum.
V.
INTENT OF THE PARTIES:
The clarifications and restatements set forth in Sections I, II, III,
and IV above and agreed upon by the parties hereto are included herein as a
means of reemphasizing the original intent of the Lease provisions being
clarified. The parties hereto
-4-
therefore agree that all provisions of the Lease, as clarified above, continue
in full force and effect.
VI.
CONSENT TO SUBLETTING TO MR:
The City Manager, for good and valuable consideration, hereby consents
to the execution of the MR Sublease solely for the purposes described in the
Lease.
VII.
CONSENT TOASSIGNMENT OF MR SUBLEASE:
The City Manager hereby consents to the execution of the Sublease
Assignment solely for the purposes described in the Lease. As consideration for
the granting of this consent, GMM and BRMC hereby agree that all payments due
from BRMC to GMM pursuant to the terms of the MR Sublease as assigned and under
the terms of this Memorandum (including section VIII), shall be made directly by
BRMC to the , City. The City agrees and acknowledges that the amounts due from
BRMC to GMM under the terms of the MR Sublease as assigned and under the terms
of this Memorandum (including section VIII) equals and fully satisfies the total
consideration owed by GMM to the City in accordance with the Lease. GMM shall
remain liable to the City, as lessee under the Lease and as party to this
Memorandum, for any default that may occur in connection with the Lease or this
Memorandum, whether by virtue of the failure of BRMC to pay any sums due to the
City pursuant to the Lease or this Memorandum, or for any other reason
whatsoever. BRMC hereby agrees that it shall abide by all the provisions of the
Lease and, in particular, shall provide the City all information it may require
in connection with Sections 15 and 16 of the Lease.
VIII.
CONSENT TO SUBLETTING TO STONE CRABS:
GMM hereby consents to the execution of the Stone Crabs Sublease solely
for the purposes described in the Lease. In consideration of GMM's consent to
the Stone Crabs Sublease, BRMC
-5-
shall pay GMM an amount equal to one hundred percent (100%) of the rents due to
BRMC pursuant to the terms of the Stone Crabs Sublease, which shall not be less
than five percent (5%) of the gross sales of Stone Crabs.
IX.
NO FURTHER CONSENT NECESSARY:
No further consent by the City shall be necessary nor shall any further
written authorization be required pursuant to the Lease, to permit the MR
Sublease and/or the Sublease Assignment and/or the Stone Crabs Sublease.
X.
CONDITION PRECEDENT:
MR, BRMC and Stone Crabs have each been furnished with a copy of the
Lease and agree to assume any and all obligations heretofore performed by GMM
with respect to the Property and the Lease. GMM, BRMC and Stone Crabs each
hereby accepts and agrees to be bound by the above-mentioned conditions.
XI.
LIMITED CONSENT:
The parties hereto agree that the consent to the MR Sublease, the
Sublease Assignment and the Stone Crabs Sublease granted hereunder is not
intended to endorse, ratify or substantiate any representations, recitals,
covenants or agreements made by GMM, MR, BRMC or Stone Crabs in the text or
pursuant to the terms of the, MR Sublease, the Sublease Assignment, the Stone
Crab Sublease or any documents or agreements collateral thereto. It is the
City's sole purpose hereunder to consent to the execution of the MR Sublease and
the Sublease Assignment, granting those rights and imposing those duties
contemplated and provided for in the Lease.
XII.
CAPITALIZED TERMS:
All capitalized terms used in this Memorandum but not defined herein
are understood to have the meaning ascribed to such terms in the Lease.
-6-
XIII.
LEASE RATIFICATION: .
Upon the execution of this Memorandum, the parties hereto hereby ratify
the Lease and agree that there are no parties in default under the terms of the
Lease. The parties hereto currently have no claims against each other arising
from the Lease, this Memorandum or any document collateral thereto, other than
those set forth in Section IV or hereof.
XIV.
ACKNOWLEDGEMENT
It is hereby acknowledged that the United States Government has granted
to the City of Miami all right, title and interest in certain property as
described in a quitclaim deed dated February 11, 1972 as long as said premises
are used for public park and public recreation area purposes.
The existing ancillary recreational parking facilities located on the
premises shall be maintained consistent with the deed restrictions.
The approved use as specified in the Program of Utilization as approved
by the Department of Interior in 1978 and ratified by subsequent biennial review
shall continue.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by the respective officials thereunto duly authorized, this the day
and year first above written.
CITY OF MIAMI, a municipal
corporation of the State of
Florida
ATTEST:
/s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxx
------------------------------ -------------------------------
City Clerk City Manager
ATTEST: GROVE MARINA MARKET, LTD.,
a Florida Limited Partnership
/s/ illegible By: /s/ illegible
------------------------------ -------------------------------
Secretary (SEAL)
as president of Grove Marina
Market, Inc.,
general partner
-7-
ATTEST: BAYSHORE RESTAURANT MANAGEMENT
CORP., a Florida Corporation
/s/ illegible By: /s/ illegible
------------------------------ -------------------------------
Corporation Secretary (SEAL)
ATTEST: TERREMARK STONE CRABS, INC.,
a Florida corporation
/s/ illegible By: /s/ illegible
------------------------------ -------------------------------
Secretary (SEAL)
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxxxxx
------------------------------ -------------------------------
Risk Management City Attorney
-8-
MEMORANDUM OF UNDERSTANDING
THIS AGREEMENT is made this 10th day of September, 1993 by and between
Grove Marina Market, Ltd., a Florida limited partnership (the "Lessee") and
Bayshore Restaurant Management Corp., a Florida corporation (the "Sublessee")
and the City of Miami, a municipal corporation of the State of Florida, (the
"City").
RECITALS
Whereas, on August 24, 1992, Hurricane Xxxxxx produced disastrous
weather conditions in the South Florida area, including the City, which as
determined by the Legislature of the State of Florida, caused damage of
sufficient severity and magnitude to warrant substantial disaster assistance
under Chapter 93-186, Laws of Florida (the "Law"); and
WHEREAS, pursuant to the Law, the State of Florida has allocated to the
City the sum of $2,333,229, for purposes of funding certain expenditures and
losses resulting from Hurricane Xxxxxx, subject to certain terms and conditions
set forth in a Memorandum of Agreement entered into between the State of
Florida, Department of Community Affairs and the City (the "MOA"), a copy of
which is attached hereto and made a part hereof; and
WHEREAS, various City owned properties located in the coastal areas of
the City, including certain docks (the "Docks") located at Xxxxx Trainer's
Bayshore Restaurant and Marina were particularly impacted by the storm's
powerful force; and
WHEREAS, the City and Bayshore Properties, Inc , a Florida corporation
entered into a Lease Agreement dated September 20, 1985, (the "Lease") which was
assigned to the Lessee pursuant to an Assignment of Lease dated March 16, 1986;
and
WHEREAS, pursuant to a Sublease Agreement dated March 14, 1986, (the
"Sublease"), the Sublesee is presently the operator of the Docks; and
WHEREAS, the City under the terms of the MOA is authorized to utilize
funds in an amount not to exceed $820,000 (the "Allocation")for the restoration
of the Docks; and
NOW, THEREFORE, for good and valuable consideration, the receipt of
which ~ is hereby acknowledged, the parties hereto mutually agree as follows:
1. INCORPORATION OF RECITALS
The above recitals are expressly incorporated here and made part of
this Agreement.
2 . PURPOSE OF AGREEMENT
The purpose of this Agreement is to extend to the Sublessee disaster
assistance funding in accordance with the provisions of the NOA and the Law, to
defray the Sublessee's cost of rebuilding the Docks.
3. DISBURSEMENT OF FUNDS
A. Request for Payment.
The Sublessee hereby agrees that it shall submit to the City a request
for payment which is to include all invoices, cancelled checks, executed
contracts, receipts, purchase orders, billing , etc., and any other appropriate
back up documentation sufficient to demonstrate that the reported costs were
incurred in the performance of eligible work and that said costs have been paid
by the Sublessee. Upon receipt of said documentation, the City shall, subject to
funding availability from the State, reimburse the Sublessee, for eligible costs
incurred and paid by the Sublessee, an amount not to exceed the Allocation, in
accordance with the terms and conditions of the MOA, the Law, and the provisions
of paragraph B as set forth below.
B. Final Payment.
The City shall withhold the sum of $250,000, from the Allocation which
sum shall be disbursed to the Sublessee as final payment only after all of the
following conditions are satisfied:
a. Verification that all work undertaken at the Docks for repair or
replacement of docks or docking facilities was performed in compliance with all
applicable laws, regulations and requirements of any and all federal, state and
local governments and agencies, including but not limited to all requirements of
Metropolitan Dade County, Department of Environmental Resources Management and
Section 24-58(1) of the Metropolitan Dade County Code.
-2-
b. City inspection of the restoration work to ascertain completion of
the work in accordance with the scope of work described in the request for
payment and in accordance with the eligibility criteria set forth in the MOA.
c. Final inspection by the State to insure that the work was performed
within the scope of the MOA.
d. Verification that the Sublessee, at a minimum, has obtained
insurance including Flood and Windstorm coverage for the Docks, for the amount
of disaster assistance funding requested.
e. Satisfactory evidence of discharge of any and all liens filed
against the property or the leasehold by reason of work, labor, services or
materials supplied in connection with the restoration of the Docks.
f. Satisfactory evidence that the funds to be disbursed will not
duplicate any federal, state, insurance, public or private funds available to
the Sublessee for the restoration of the Docks.
g. Compliance by the Sublessee with any other requirement that the City
may reasonably imposed upon the Sublessee pursuant to the terms of the MOA, the
Law and this Agreement.
4 .RECOVERY OF FUNDS
Notwithstanding any other provision of this Agreement, including those
of Section 3 above, in the event that an audit by either the State of Florida or
the City determines that funds allocated to the Sublessee under this Agreement
were not spent in accordance with the terms and conditions of the NOA or the
Law, or that funds allocated to the Sublessee exceeded the amount of actual
eligible costs, the Sublessee shall, within thirty (30) days of receipt of
notice from the City, repay to the City the amount determined to be ineligible
for funding.
5. RECORDS MAINTENANCE
The Sublessee agrees to maintain all records pertaining to the work
performed on the Docks and to the funds received under this Agreement for a
period of no less than three (3) years from the date of the final payment
hereunder. Access to those records must be provided to the City and to the
Comptroller General of the State of Florida and the Department of Community
Affairs, and their respective employees and agents.
-3-
6. ACKNOWLEDGEMENT
The parties hereto agree that all terms and conditions of the Lease and
the Sublease remain in full force and effect, and all the terms and conditions
of this Agreement are subject to the terms and conditions of the Lease and the
Sublease.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by the respective officials thereunto duly authorized, this the day
and year first above written.
ATTEST: CITY OF MIAMI, a municipal
corporation of the State of
Florida
/s/ illegible, Asst. City Clerk /s/ Xxxxx X. Xxxx
------------------------------------ -------------------------------
for XXXXX XXXXX XXXXX X. XXXX
City Clerk City Manager
ATTEST: GROVE MARINA MARKET, LTD.,
a Florida Limited Partnership
/s/ illegible /s/ illegible
------------------------------------ -------------------------------
Corporate Secretary Vice-President
ATTEST: BAYSHORE RESTAURANT MANAGEMENT
CORP., a Florida Corporation
/s/ illegible /s/ illegible
------------------------------------ -------------------------------
Corporation Secretary (SEAL)
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
/s/ Xxxxx x. Xxxxxxx, Director /s/ A. Xxxxx Xxxxx, III
------------------------------------ -------------------------------
XXXXX X. XXXXXXX, Director A. XXXXX XXXXX, III
Risk Management Department City Attorney
-4-
AMENDMENT TO LEASE AGREEMENT
BETWEEN THE CITY OF MIAMI AND GROVE MARINA MARKET, LTD.
This amendment to the Lease Agreement is entered into this 14th day of
November 2001, by and between the City of Miami, a municipal corporation of the
State of Florida (the "City"), and Grove Marina Market, Ltd. [current assignee
(the "Company")] for the purpose of amending that certain Lease Agreement
between the City and Company dated September 20, 1985 (the "Agreement").
WHEREAS, South Florida business that depend significantly on the
tourism industry have been greatly impacted by the fallout of the September 11 ,
2001 terrorist strikes; and
WHEREAS, the City rents certain space to businesses impacted by the
loss of tourism; and
WHEREAS, on September 25, 2001, the City Commission adopted Resolution
01-996 to provide for a temporary deferral of rent for those businesses affected
by loss of tourism and who rent space from the City;
NOW, THEREFORE. in consideration of mutual covenants hereinafter set
forth and in consideration of other valuable consideration the parties covenant
and agree as follows:
1. Incorporation of Recitals: The recitals and findings set forth above
are hereby adopted by reference thereto and incorporated herein as if fully set
forth in this Agreement.
2.Amendment Effective Date: This effective date of this Amendment shall
be the date upon which it is executed by the City Manager (the "Amendment
Effective Date").
3. Temporary Rent Abatement: Notwithstanding anything in the Agreement
to the contrary, Company is hereby granted a deferment of Rent due and payable
on the months of October, November and December, 2001 (the "Deferred Period").
The amount of deferred Rent shall be paid in equal monthly installments on the
first day of each month, commencing January
1, 2002 and ending September 1 , 2002. Failure to complete payment of
deferred Rent by September 1, 2002 shall constitute a default under the
Agreement. Nothing contained herein shall affect the payment of percentage rent,
if any, due and payable during the Deferred Period but accruing prior to the
Deferred Period, nor the payment of impositions, or any other amounts due under
the Agreement during the Deferred Period."
Except as specifically provided herein, all of the, terms and
provisions of the Agreement shall remain in effect.
Attest: Grove Marina Market, Ltd.
/s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxx X. O'Naghten
------------------------------- ----------------------------------
Signature Signature
Xxxxxxx Xxxxxxxxx Xxxx X. O'Naghten, President
------------------------------- ----------------------------------
Print Name and Title Print Name and Title
Grove Marina Market, Inc.
General Partner
Attest City of Miami, a municipal
corporation
of the State of Florida
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ----------------------------------
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
City Clerk City Manager
Approved As To Form And
Correctness
By: /s/ illegible
-------------------------------
illegible
City Attorney
, SECOND AMENDMENT TO LEASE AGREEMENT
BETWEEN THE CITY OF MIAMI AND GROVE MARINA MARKET, LTD.
This Second Amendment to Lease Agreement (this "Amendment") is entered
into this
20th day of August, 2004, by and between the City of Miami, a municipal
corporation of the State of Florida (the "City"), and Grove Marina Market, Ltd.
(assignee of Bayshore Properties, Inc., the "Company") for the purpose of
amending that certain Lease Agreement between the City and the Company dated
September 20, 1985, as amended by: (1) that certain Memorandum of Understanding
dated August 30, 1991 (the "1991 Memorandum"), (2) that certain Memorandum of
Understanding dated September 10, 1993, and that certain Amendment to Lease
Agreement dated November 14, 200l, copies of which are attached hereto as
Attachment I (the Lease Agreement dated September 20, 1985, the Memorandum of
Understanding dated August 30, 1991, the Memorandum of Understanding dated
September 10, 1993, and the Amendment to Lease Agreement dated November 14, 2001
are hereinafter collectively referred to as the "Agreement", "Lease Agreement"
or "Lease").
WHEREAS, pursuant to the Lease Agreement, the City leased to Bayshore
Properties, Inc. certain property located at approximately 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxx, Xxxxxxx (the "Property" or "Leased Premises"), commencing
September 30, 1985 and expiring on May 3 1, 2035;and
WHEREAS, pursuant to an Assignment of Lease dated March 16, 1986,
Bayshore Properties, Inc., assigned to the Company its rights and obligations
under the Lease Agreement, and said assignment was consented to by the City by
virtue of that certain Consent to Assignment dated March 13, 1986; and
WHEREAS, the Property comprises upland and submerged land, a portion of
which lies within an area deeded to the City by the Board of Trustees of the
Internal Improvement Fund of the State of Florida (the "Trustees") pursuant to
Deed No. 19448; and
WHEREAS, Deed No. 19448 contains a restriction that the lands described
therein are granted, bargained, conveyed and sold to the City of Miami, solely
for public purposes, including municipal purposes; and
WHEREAS, the Trustees approved a Waiver of Deed Restrictions on June
21, 1981; and
WHEREAS, recently it was discovered that the legal description of the
Property contained in the Lease Agreement does not accurately describe the
submerged lands currently and historically used by the Company; and
WHEREAS, it was determined that: (i) a portion of such submerged land
used by the Company is owned by the City pursuant to Deed No. 19448 from the
Trustees, and, therefore, subject to the restrictions thereof and (ii) certain
boats that dock along the first pier of the Property encroach onto State of
Florida owned submerged lands; and
WHEREAS, it was therefore necessary to obtain: (i) an Amendment to the
Waiver of Deed Restrictions to expand the scope of the Waiver to include such
submerged land and the docks that lie within the area deeded by the Trustees,
and (ii) a sovereignty submerged lands lease agreement for that area of
encroachment; and
WHEREAS, the City Commission adopted Resolution 03-857 at its July 24,
2003 meeting, authorizing: (1) the City Manager to execute a submerged lands
lease with the State of Florida for the submerged lands currently utilized by
the Company for dockage purposes; (2) acceptance of an amended waiver of deed
restrictions to accurately reflect the area being utilized by the Company; and
(3) the City Manager to execute an Amendment to the Lease Agreement to
accurately describe the lands being leased to the Company; and
WHEREAS, this Second Amendment to Lease Agreement incorporates a new
Exhibit A-1 to the Lease Agreement to accurately reflect the legal descriptions
of the upland and submerged land leased to the Company, an acknowledgement by
the Company of the imposition of rental payments due to the State for the use of
the State owned submerged lands and for the Waiver of Deed Restrictions, a
clarification of certain other terms and conditions of the Lease Agreement and
other terms and conditions as set forth below;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and in consideration of other valuable consideration, the parties
covenant and agree as follows:
1. Incorporation of Recitals: The recitals and findings set forth above
are hereby adopted by reference thereto and incorporated herein as if fully set
forth in this Amendment.
2. Amendment Effective Date: The effective date of this Amendment shall
be the date upon which it is executed by the City Manager and attested to by the
City Clerk (the "Amendment Effective Date").
2
3. The Lease Agreement is hereby amended as follows:
A. Exhibit A: Exhibit A of the Lease Agreement is hereby deleted in its
entirety and replaced with Exhibit A-1 , attached hereto and made a part hereof.
Any and all references to Exhibit A shall hereinafter be deemed to refer to
Exhibit A-1.
B. A new Section 1A is hereby added to the Lease, as follows:
1A. Acknowledgment of State Conditions: The City has received the following from
the Board of Trustees of the Internal Improvement Trust Fund of the State of
Florida (the "Trustees"):
(a) a 10-year lease (the "State Lease"), attached hereto and made a
part hereof as Exhibit B, for the property identified as Parcel C2, on Exhibit
A-1 attached hereto and made a part hereof (the "State Lease Property"),
containing 21,344 square feet, more or less, to operate an existing 34 slip
docking facility for the mooring of commercial and recreational vessels in
conjunction with the upland commercial marina and restaurant; and
(b) a Waiver of Deed Restrictions and Amendment to Waiver of Deed
Restrictions (collectively, the "Waiver") attached hereto and made a part hereof
as Exhibit C, for the property identified as Parcels 2, A2, 5 and B2, as more
particularly described in Exhibit A-1 attached hereto and made a part hereof
(the "Waiver Property"), containing 88,311 square feet, more or less, of deeded
submerged lands associated with the use of the upland commercial marina.
The Company has been provided copies of the State Lease and the Waiver
(collectively the "State Agreements") and agrees to comply with all of the terms
and conditions of the State Agreements in all respects. The Company acknowledges
that Section 20 of the State Lease allows for its renewal at the sole option of
the State of Florida (the "State"), no sooner than 120 days and no later than 30
days prior to the expiration of the term thereof (each a "Renewal Period"). The
City shall in good faith exercise its best efforts to renew and continue
renewing the State Lease during each Renewal Period for the entire term of this
Agreement and provide copies of such renewal requests to the Company. In the
event the City does not apply for such renewal within 90 days prior to the
expiration of the term of the State Lease, the City does not object to the
Company making application to the State for a renewal of the State Lease.
In addition, in the event that the Company elects to: (a) extend the
term of the State Lease prior to the City commencing its efforts to extend the
term of the State Lease and/or (b) extend the term of the State Lease to e
co-terminus with
3
this Agreement, then in that event the City shall, at no cost to the City other
than its internal administrative costs, assist and support the Company in its
attempt to cause the term of the State Lease to be extended; provided, however,
that in such event, the Company shall bear the cost of any additional increase
in rents (imposed as a result of the early extension of the State Lease) above
the rent that the City would otherwise be required to pay under the State Lease.
During the term of the State Lease and any renewal(s) thereof, the City shall
continue to be required to pay the sums set forth in Section 1B(i) of this
Lease, as increased annually based upon increases in the Consumer Price Index
("CPI").
In the event the State Lease is not renewed or expires prior to the expiration
of this Agreement: (1) the Company shall cease to operate the slip docking
facility and any wet slips that encroach onto the State Lease Property, and (2)
this Agreement shall terminate as to the State Lease Property.
The City agrees to comply with all the terms and conditions of the State
Agreements in all respects.
C. A new Section lB is hereby added to the Lease, as follows:
1B. Payments to the State: The State Agreements provide for the payment
of fees in accordance with Section 18-21.011, Florida Administrative Code, which
section provides for the payment of a minimum annual fee or six percent (6%) of
the annual rental value from the wet slip rental area, whichever is greater.
Notwithstanding anything contained in the State Agreements to the contrary, the
Company and the City shall pay their respective shares of the payments due to
the State during the term of the State Agreements and any extensions thereof, as
follows:
(i) State Lease: Commencing on July 1 , 2004, the City shall pay to the
State for the State Lease Property annual rent in an amount not to exceed
$2,000, as increased annually based upon increases in the CPI. The initial
annual base rent for the period from July 1 , 2004 through June 30, 2005 is
$1,952.98.
Forty-five (45) days prior to the due date, the Company shall pay to
the City for remittance to the State any and all rental fees as provided for in
the State Lease in excess of $2,000 as increased annually based upon increases
in the CPI.
(ii) Waiver on Parcels 2 and A2: The City shall pay to the State for
Parcels 2 and A2 annual fees that shall in the aggregate not exceed $27,000, as
increased annually based upon increases in the CPI. The initial annual base fee
for the period from October 1, 2004 through June 30, 2005 shall be $3,l 03.20;
thereafter, the annual base fee shall be calculated each year for the period
from July 1st through June 30th of the following year.
4
Forty five (45) days prior to the due date, the Company shall pay to the City
for remittance to the State any and all other amounts due pursuant to the Waiver
which are in excess of $27,000, as increased annually based upon increases in
the CPI as provided above.
(iii) Waiver on Parcels 5 and B2: Forty-five (45) days prior to the due
date, the Company shall pay to the City for remittance to the State one hundred
percent (100%) of any and all fees due to the State pursuant to the Waiver on
Parcels 5 and B2.
(iv) The City shall remit payments due to the State during the term of
the State Agreements and any extensions thereof within fourteen (14) days after
the City shall have received all fees due from the Company for the State Lease
Property and the Waiver Property and provide, written evidence thereof to the
Company. In the event the City does not timely remit such payments as provided
above, the Company may make such payments to the State, and any portion thereof
that the City is obligated to pay as aforesaid may be deducted by the Company
from the next rental payment(s) due from the Company to the City.
D. Section 2 of the Lease is hereby amended to read as follows:
Section 2. Term. The term of this Agreement shall commence on the 30th
day of September, 1985 and shall end on the 31st day of May, 2035.
Notwithstanding any other provision of this Agreement, the term of this
Agreement with regard to the State Lease Property shall expire on the earlier
of: (1) the expiration or earlier termination of the State Lease (or any renewal
or extension thereof), or (2) May 31, 2035.
E. Section 3 of the Lease is hereby amended to read as follows:
3. Use of Property: The Company will develop, manage and promote the
property to prospective tenants in such a manner that will offer the Essential
Services (as hereinafter defined) required and encourage public enjoyment, use
and participation so as to make the project financially feasible to both the
Company and the City, as well as to reach the objectives of the Dinner Key
Master Plan 1984, as amended January, 1985. The Property shall at all times be
managed by an Acceptable Operator as defined below. Should any event occur
during this Lease term causing the then current Acceptable Operator to cease
managing the Property, the Company shall have a period of six (6) months to have
an Acceptable Operator manage the Property.
5
"Acceptable Operator" means an entity or entities whose manager(s), principal(s)
or member(s) possess the business experience, good reputation, financial
resources, and adequate personnel necessary for the proper performance of all of
the Company's obligations under this Lease, in a manner consistent with the
quality, reputation and economic viability of the Property and the leasehold
improvements, and with no instance of termination of a lease with the City as a
result of default. The Acceptable Operator as an entity or its personnel
individually shall have a minimum of five (5) years of proven or demonstrated
experience in the successful operation and management of a marina and retail
development.
The Company covenants and agrees to provide each and every Essential
Service as required in its use of the Property, as hereinafter listed, if
allowed by law. The Essential Services will be provided during the entire term
of this Lease (subject to interruption for reasonable periods if due to a loss
of a tenant or concessionaire providing Essential Services or in the event of
casualty or condemnation as provided in Sections 24 and 41 of this Lease,
respectively) unless and until the Company files a request in writing for
permission to discontinue a use or service and the reasons therefore and said
permission is granted by the City Manager. The City Manager shall only permit
discontinuance of an Essential Service or use if he or she finds that it is no
longer essential and that the discontinuance of said Essential Service(s) or use
is in the greater interest of the public.
Essential Services required in the use of the Property:
1. Restaurant: One casual dining restaurant ("Restaurant"). The raw bar
restaurant located on the ground floor of the Leased Premises, as such
establishment currently exists or as it may be expanded in the future meets this
requirement. A sketch of the Restaurant as it currently exists is attached
hereto as Exhibit "D";
2. Retail Facilities: "Retail Facilities" shall mean all of the tenant
spaces included in the Property that sell goods and/or services directly to the
public and shall not include the areas of the Property utilized for the
Restaurant and the Marina. In the event the Company elects to operate an
Upstairs Restaurant, as defined in Section 13, the Retail Facilities shall also
exclude such area utilized for the Upstairs Restaurant;
3. Marina: A marina, including an adequate number of spaces for
transient vessels;
In addition, the following uses may be provided by the Company or the tenant(s)
of the Property, but are not required: (a) A refreshment stand; (b) Boat
rentals; (c) Bait and tackle shop; (d) Convenience food store for the benefit of
marina tenants;
6
(e) Marine supply store, including diving gear; (f) Outboard motor sale
and incidental service; (g) Marine clothing sales; (h) Marine furniture sales
and incidental manufacturing; (i) Boat tours; (j) Fishing area; (k) Sporting
goods store; (1) Antique store; (m) Art galleries and book store open to the
general public; (n) Bakery; (o) Bicycle sales and repair; (p) China and
crockery; (q) Confectionery or ice cream store; (r) Clothing; (s) Photographic
sales; (t) Gift shop; (u) Hobby shop; (v) Jewelry and watch sales, repair and
service; (w) Leather goods - sales and incidental assembly and repair; (x)
Lounges; (y) News stand or sundry; (z) Xxxxxx shop, beauty parlor, and shoe
polishing stand; (aa) Travel and ticket agency; (ab) Sailmaker; (ac) Arts and
crafts; (ad) Office for management and rental of the Property; (ae) Marine fuel
pumps; (af) Any related or allied uses to the above if approved by the City
Manager which approval may not be unreasonably withheld, conditioned or delayed.
All Marina operations, including rental of all boat slips shall be
directly controlled and operated by the Company unless the consent of the City
Manager is given in writing to do otherwise on such conditions as are mutually
agreeable to the City Manager and the Company.
F. Section 8 of the Lease is hereby amended to read as follows:
8. Construction Security Bond: Prior to the commencement of
construction or the awarding of any contract for construction on the Property,
which construction cost per contract is in excess of $200,000, the Company, at
its sole cost and expense, shall furnish to the City a Payment and Performance
Bond and/or Letter of Credit in an amount equal to 100% of the hard construction
costs
7
of the improvements to be constructed pursuant to said contract, and which shall
name the City as the owner, dual obligee or beneficiary, as appropriate.
The forms of such Payment and Performance Bond and/or Letters of Credit
and the surety or institution issuing the same shall be subject to the prior
written approval of the City Manager, which approval shall not be unreasonably
withheld. Any Payment and Performance Bond and/or Letter of Credit may be
enforced by the City in accordance with its terms.
C. Section 10 of the Lease is hereby amended to read as follows:
10. Taxes: During the term hereof, the Company covenants and agrees to
pay all taxes of whatsoever nature lawfully levied or assessed against the
Property and improvements, property, sales, rents or operations thereon,
including but not limited to, ad valorem taxes. Payment thereof shall commence
with and shall include taxes assessed for the current year. The Company further
covenants and agrees to pay all of the said taxes, if any, lawfully assessed on
such dates before delinquency. In the event the Company fails to pay the real
property taxes by April 1st of each year, the Company shall be responsible to
pay any interest and/or penalties charged by the tax assessor's office.
In addition to the interest and/or penalties payable to the tax
assessor's office, in the event that the Company becomes delinquent in the
payment of real property taxes, the City, upon providing written notice to the
Company, may require either of the following, at its sole, option: (1) the
Company to escrow monthly to the City an amount equal to one-twelfth of the
amount billed for ad valorem taxes, without discounts, during the previous
calendar year plus 5% to cover estimated annual tax increases, provided,
however, that sufficient funds, as determined by the City in its sole judgment,
shall be paid to the City, with the first such escrow payment so that the
aggregate of all such escrow payments shall be sufficient to pay the real estate
taxes for that calendar year when due. Said amount shall be paid with the rent
due on the first day of each month. In the event the amount escrowed is not
sufficient to pay the full amount of taxes due, the Company shall pay the
difference to the City, for remittance to the County within fifteen (15) days of
receipt of notice from the City of the amount of such deficiency. In the event
the amount of monies escrowed are in excess of the taxes due, the balance shall
be applied to the following year's tax payment; or (2) the Company shall enroll
in the Dade County Ad Valorem Tax Payment Plan. Provided, however, that
notwithstanding any provision hereof to the contrary, the provisions of this
paragraph shall not apply in the event that the Company pays a monthly escrow
for ad valorem taxes to a leasehold mortgagee pursuant to the requirements of a
leasehold mortgage.
8
Failure of the Company: (i) to pay the real property taxes when due and any
interest or penalties charged in connection therewith, or, (ii) if required in
accordance with the previous paragraph hereof, to pay the monthly real estate
tax escrow to the City or enroll in the Dade County Ad Valorem Tax Payment Plan,
shall Constitute an event(s) of default under this Lease Agreement, subject to
the notice and cure provisions provided in Section 18 of this Lease.
H. Section 13, paragraphs II and III are hereby amended to read as
follows:
II. Percentage Rental: The Percentage Rental shall be an amount equal
to the cumulative total of the following percentages of Gross Receipts as
defined herein:
(a) Restaurant: 8% of the annual Gross Receipts of the Restaurant
up to one million dollars ($1,000,000) and ten percent (10%) of the
annual Gross Receipts of the Restaurant in excess of one million
dollars ($1,000,000).
(b) Retail Facilities: 10% of the annual rents received from the
rentals paid by the respective retail subtenants, licensees and
concessionaires;
(c) Upstairs Restaurant: In the event the Company operates a
restaurant on the second floor of the building on the Property (the
"Upstairs Restaurant"), the Upstairs Restaurant shall pay 5% of the
Gross Receipts of the Upstairs Restaurant.
Percentage Rental shall be paid monthly in advance on the first day of
each month during the term of this Lease.
The amount to be paid each month in any given Lease year shall be equal
to the aggregate of the following divided by twelve (12):
(i) the annual Gross Receipts for the Restaurant for the
immediately preceding Lease year multiplied by the
applicable percentage rate provided for in (a) above,
plus
(ii) the annual Gross Receipts for the Retail Facilities for
the immediately preceding Lease year multiplied by ten
percent (10%), plus
(iii)the annual Gross Receipts for the Upstairs Restaurant
for the immediately preceding Lease year multiplied by
five percent (5%).
9
As an example, which is included herein for purposes of clarification
only,
if:
(a) the annual Gross Receipts for the Restaurant for the Lease
year ending September 30, 2004 are five million dollars ($5,000,000),
and
(b) the annual Gross Receipts for the Retail Facilities for the
Lease year ending September 30, 2004 are four hundred thousand dollars
($400,000), and
(c) the annual Gross Receipts for the Upstairs Restaurant for the
Lease year ending September 30, 2004 are four million dollars
($4,000,000)
then, monthly payments for the Lease year commencing October 1, 2004
shall be equal to seven hundred twenty thousand dollars ($720,000) divided by
twelve (12), which equals sixty thousand dollars ($60,000) as follows:
[($1,000,000 x 8%) plus ($4,000,000 x 10%) plus ($400,000 x 10%) plus
($4,000,000 x 5%)] divided by 12 = $60,000
III. Special Percentage Rental:
In addition, as separate and additional consideration due the City, not
included in the hereinabove Percentage Rental or the Minimum Annual Guaranteed
Rental, the Company shall also pay to the City the following Special Percentage
Rental:
(a) Two and a half cents ($0.025) per gallon of fuel sold; and
(b) 15% of the annual Gross Receipts collected from dockage
rental and dry storage of boats at the Property.
Special Percentage Rental shall be paid monthly in advance on the first
day of each month during the term of this Lease, and calculated in the manner
indicated above for the payment of Percentage Rental.
A new Section 13.IV is hereby added to the Lease, as follows:
IV. Gross Sales/Gross Receipts: For purposes of this Lease, the term
"Gross Sales" shall be considered synonymous and interchangeable with the term
"Gross Receipts" and shall be construed to include all income to the Company and
sublessees, whether collected or accrued, from all business conducted on the
Property, including, but not limited to, the rental of space, the sale of food
and beverage goods and services, or from any source whatsoever.
10
Gross Sales and/or Gross Receipts shall only include revenues and/or percentages
of revenues collected or accrued.
Gross Sales and/or Gross Receipts shall also include any revenues
whether accrued or collected, attributable to any direct or indirect
participation by the Company and/or its sublessees, or any of their officers or
principals in the business or enterprise of another entity, person or tenant of
the property besides the Company and/or sublessee per se, to the extent that
such participation entitles Company and/or its sublessees, their officers or
principals to receive remuneration; and further provided that such other
business or enterprise is done on or "in connection with" the Property provided,
however, that the term "in connection with" shall not include revenues which
result merely from the physical adjacency of location or merely from joint
promptional effort and advertising.
Notwithstanding the foregoing, Gross Receipts shall exclude any sales
taxes imposed, by law which are separately stated to and paid by the `purchaser
or user, and are directly payable to a taxing authority. Gross Receipts shall
further exclude gratuities or service charges which are payable to restaurant
employees, all sums and credits received in settlement of claims for loss or
damage to inventory or equipment, gains or losses from the sale of any capital
assets or furniture, fixtures and equipment, and proceeds of any financing or
refinancing of the Company's leasehold interest or improvements. In addition,
Gross Receipts shall also exclude any sublease rent or other income received by
the Company from the Restaurant, the Marina and/or `the Upstairs Restaurant in
excess of the percentages described in Sections 13.II and 13.III above
(Percentages: Restaurant: 8% of Gross Receipts up to $1,000,000; 10% of Gross
Receipts in excess of $1,000,000; Upstairs Restaurant: 5% of Gross Receipts; and
Marina: 15% of Gross Receipts). Gross Receipts shall not include shall not
include the gross sales of a subtenant in the Retail Facilities.
The parties agree that the gross receipts of any subtenant subleasing
the Restaurant, the Marina and/or the Upstairs Restaurant portions of the
Property at any particular time shall be used to compute the Percentage Rental
and Special Percentage Rental, as applicable, payable by the Company to the City
pursuant to this section.
Each remittance to the City of the monthly consideration, as required,
shall include the applicable amount of State of Florida sales and use tax.
The Company covenants and agrees that goods and services offered and
sold on the Property by the Company, its tenants or sublessees that pay
percentage rent, may be regularly audited by the City and/or its designee,
during normal business hours and in a manner in accordance with Paragraph 16,
and that the full
11
amount of Gross Receipts attributable to the subject Property shall not in any
way be diverted to any other business or enterprise.
The City shall also have the right, at its option, to seek a tenant
estoppel certificate or other confirmation from any sublessee or sub-sublessee
who pays rent on a flat fee basis to confirm the computation of the rents paid
and the computation of Rental payments due hereunder.
J. A new Section 13.V is hereby added to the Lease, as follows:
V. Late Fees.
i. The Company hereby acknowledges that late payment by the Company 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 Company shall not be
received by the City within fifteen (15) days after the Company's
receipt of written notice from the City that such payment was not made
on the date on which such sum was due (each, a " Notice of Payment
Due"), the Company 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 Company. Acceptance of such
late charge by the City shall not constitute a waiver of the Company'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
Company's receipt of a Notice of Payment 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 Company
under this Agreement.
K. Section 1 9 is hereby amended to read as follows:
Upon execution of the Assignment and Assumption of Lease by and between the
Company and Bayshore Landing, LLC, notices shall be sent to the parties at the
following addresses:
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To the City: To the Company:
City of Miami Bayshore Landing, LLC
City Manager Xxxxxx X. Xxxxxxxxx, Xx.
3500 Pan American Drive 000 Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
With copies to: With copies to:
City of Miami Bayshore Landing, LLC
Director of Economic Development Attn: Xxxxx Xxxxxxxxx
000 XX 0 Xxxxxx, 0xx xxxxx 0000 X Xxxxxxxx Xxxxx
Xxxxx,XX00000 Xxxxx, XX 00000
City of Miami Wachovia Bank, NA
City Attorney Attn: Xxxxx Xxxx, Senior VP
000 XX 0 Xxxxxx, 0xx Xxxxx 000 X Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxx, XX 00000 Xxxxx, XX 00000
Wachovia
Bank, NA
Mail Code
739 P0
Box 13327
Xxxxxxx,
XX 00000
All Rental payments to the City shall be mailed to the following address:
City of Miami
Finance Department - Rent Collections
000 XX 0 Xxxxxx, 0xx Xxxxx
Xxxxx, XX 00000
The City, the Company or the Leasehold Mortgagee may change such
mailing addresses at any time upon giving the other party written notice. In
every case where under any of the provisions of this Lease Agreement or
otherwise it shall or may become necessary or desirable to make or give any
declaration or notice of any kind, such notice shall be in writing and shall be
sent by United States certified or registered mail, postage prepaid, return
receipt requested, or by hand delivery, addressed to the above addresses.
L. Section 21 of the Lease is hereby amended to read as follows:
21. Insurance: The Company shall maintain during the term of this
Agreement the following insurance subject to the approval of the City of Miami,
Department of Risk Management.
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(a) Property Insurance: "Special Forth" property insurance form with
extended coverage against loss or damage by earthquake, mudslide, windstorm, and
flood.
Amounts: Such coverage shall be in the following amounts: One Hundred
Percent (100%) of the replacement cost on the building, business personal
property and leasehold improvements (exclusive of foundation and excavation
costs), lessee's alterations, improvements, fixtures, equipment, furniture,
trade fixtures and floor coverings, including the expense of removal of debris
as a result of damage by an insured peril (collectively, the "insured property")
on the property with a maximum deductible of one percent (1%) for all perils
other than windstorm and Two percent (2%) of the insured value for the peril of
windstorm. Such windstorm and flood insurance is to be provided to the extent
commercially available. Notwithstanding the foregoing, the parties acknowledge
and agree `that coastal properties are often precluded from being insured by
private insurers and that any casualty and windstorm insurance may have to be
written through the Florida Joint Underwriters Association and/or other
governmental or other insurance pool which may include certain prohibitions such
as no replacement cost coverage.
(b) Business Interruption Insurance: "Special Form" coverage with
limits not less than the minimum annual rent, loss of profits, remuneration, and
the debt service payments for the leasehold improvements during the full period
of reconstruction following a loss.
(c) Equipment Breakdown (Boiler and Machinery): Insurance covering
repair and replacement of all boilers and machinery serving or benefiting the
leasehold improvements. The policies of insurance shall be endorsed so as to
provide use and occupancy coverage for the leasehold improvements in such amount
as may be reasonably acceptable to the City.
(d)Commercial General Liability Insurance: Commercial General Liability
insurance on a commercial general liability coverage form with "broad form"
coverage, or its equivalent, including contractual liability, products and
completed operations, personal injury, liquor liability, and premises coverage,
including parking lot coverage against sums adjudicated to be payable by the
insured on account of bodily injury, death or property damage occurring in or
about the property.
14
Amounts: The limits of such coverage shall not be less than One Million
Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000)
aggregate single limit for bodily injury and property damage. The City must be
included as an additional insured or additional loss payee, as applicable.
(e) Marine Operators Legal Liability: Insurance with limits not less
than One Million Dollars (1,000,000). The City must be included as an additional
insured or additional loss payee, as applicable.
(f) Property Coverage Docks and Piers: All Risk including Windstorm and
Flood subject to replacement cost with a maximum deductible of five percent (5%)
on all perils including the peril of windstorm. Such windstorm and flood
insurance is to be provided to the extent commercially available.
Notwithstanding the foregoing, the parties acknowledge and agree that coastal
properties are often precluded from being insured by private insurers and that
any casualty and windstorm insurance may have to be written through the Florida
Joint Underwriters Association and/or other governmental or other insurance pool
which may include certain prohibitions such as no replacement cost coverage.
(g) Automobile Liability: Automobile Liability insurance covering all
owned, non-owned, and hired vehicles used in connection with operations covered
by this lease. The policy or policies of insurance shall contain limits not less
than Five Hundred Thousand ($500,000) combined single limit for bodily injury
and property damage. The City shall be named as an additional insured or
additional loss payee, as applicable, on this coverage. The requirements of this
provision will be waived upon submission of a written statement from the Company
that no automobiles are used to conduct business.
(h) Worker's Compensation: Worker's Compensation and occupational
disease coverage in the amounts and types required by Chapter 440, of the
Florida Statutes. Only the Company shall be named as an insured.
(i) Umbrella: The Company shall further maintain an excess liability
umbrella policy with limits not less than a combined single limit of One Million
Dollars ($1,000,000).
(j) Required Policy Provisions: All policies of insurance required to
be provided and obtained may not be amended,
15
cancelled, or materially changed without thirty (30) days written notice to the
City of Miami. Said notice should be delivered to the City of Miami, Division of
Risk Management, 000 X.X. 0xx Xxxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000, with a
copy to City of Miami, Department of Economic Development, 000 X.X. 0xx Xxxxxx,
Xxxxx, Xxxxxxx 00000, or such address that may be designated from time to time.
(k) Delivery: Current evidence of insurance coverage shall be supplied
to the City of Miami Department of Risk Management with a copy to City of Miami
Department Economic Development at the commencement of this Agreement, and a new
evidence of insurance coverage shall be supplied at least Twenty (20) days prior
to the expiration~ of each such policy. Insurance policies required above shall
be issued by companies authorized to do business ` under the laws of the State
of Florida, with the following qualifications as to management and financial
strength: the company should be rated "A" as to management and no less than
class "V" as to financial strength, in accordance with the latest edition of
Best's Key Rating Guide, or the company holds a valid Florida Certificate of
Authority' issued by the State of Florida, Department of Insurance, and be a
member of the Florida Guarantee Fund. Receipt of any documentation of insurance
by the City or by its representatives, which indicates less coverage than
required, does not constitute a waiver of the Company's obligation to fulfill
the insurance requirements hereof. The insurance coverage required shall include
those classifications as listed in standard liability insurance manuals which
most nearly reflect the operations of the Company.
(1) Right to amend Insurance requirements: The City reserves the right
to `reasonably amend the insurance requirements according to usual and customary
standards in the insurance industry as circumstances dictate in order to protect
the interest of the City in this Lease' Agreement.
(m) Endorsement: The insurance policies required by this Agreement
shall be endorsed as follows:
"It is agreed that in the event of any claim or suit against the
insured for damages covered by this policy, the insurance company will not deny
liability by the use of a defense based on governmental immunity."
16
M. Section 30 of the Lease is hereby amended to read as follows:
30. Pledge of Leasehold Interest; Leasehold Mortgage:
30.1 Definitions. For purposes of this Section 30, the following words
shall have the meanings set forth below:
(a) "Leasehold Mortgage" means a mortgage, deed of trust, or
other instrument which constitutes, or any security interest given in
connection therewith, which together constitute an encumbrance or lien
upon the Company's leasehold estate or any part of it, or any related
personal property, and Company's interest in the leasehold
improvements (including the Company's interest as sublessor in any
present or future subleases and any other interest of the Company in
the leasehold improvements and personal property) as security for any
loan, including the Company's construction loan provided that a
Leasehold Mortgage shall not encumber the City's fee simple interest
in the Property.
(b) "Leasehold Mortgagee" means any holder of the Leasehold
Mortgage and note or notes secured by it.
30.2 Pledge of Leasehold Interest
(a) The Company may pledge its leasehold interest as security for
industrial development bonds provided the quality of the assignee or
pledge is approved by the City Manager which approval may not be
unreasonably withheld. This section shall under no circumstances be
construed to require the City to participate in the financing or the
proposed redevelopment improvements. The City shall fully cooperate
with the Company in respect to the reasonable requirements of
Company's lender.
(b) Notwithstanding the provisions set forth in Section 31 hereof
and further provided that the City has not notified the Company in
writing that an event of default has occurred which remains uncured,
the Company shall have the right during the term of this Lease, to
encumber the Company's leasehold interest by Leasehold Mortgage, for
the purpose of acquisition financing, securing the financing of
construction costs of leasehold improvements or the long-term
financing or any refinancing of the same, provided that such Leasehold
Mortgage shall not encumber the City's leasehold estate in the State
Lease Property nor its fee simple title to the remainder of the
Property.
Notwithstanding anything to the contrary in this Section or in this Lease, it is
expressly agreed by and between the City and the Company, and (by acceptance
17
of the Leasehold Mortgage) any Leasehold Mortgagee that the Company's right to
place a Leasehold Mortgage against the Company's leasehold interest is subject
to the following:
1. At the time the Leasehold Mortgage is made, the Company has not been
notified of any event of default under this Lease which remains uncured.
2. No Leasehold Mortgagee or anyone claiming by, through or under the
Leasehold Mortgage, shall by virtue of it, acquire any greater rights in the
Property than the Company has under this Lease.
3. The Leasehold Mortgage shall be expressly subject and subordinate to
all conditions and covenants of this Lease and to the rights of the City and the
State as to the State Lease Property. The Leasehold Mortgagee of any Leasehold
Mortgage and the owner of any indebtedness secured by the Leasehold Mortgage,
upon acquiring the Company's leasehold interest shall take the same subject to
the terms, covenants and provisions of this Lease.
4. The Leasehold Mortgage shall expressly provide that the Leasehold
Mortgagee shall notify the City of default by the Company under the Leasehold
Mortgage prior to commencing foreclosure proceedings.
5. That any right of remedy available to any Leasehold Mortgagee as
provided in this Section 30 shall be deemed to apply in all respects to any
designee or nominee of such Leasehold Mortgagee.
6. That the City shall execute and deliver to any Leasehold Mortgagee a
non-disturbance agreement in form and substance reasonably satisfactory to such
Leasehold Mortgagee and the City.
7. That except as expressly prohibited by the provisions of this
Section 30, any Leasehold Mortgage may be upon such terms and conditions as the
Company and Leasehold Mortgagee may agree.
8. In no event may the amount of such leasehold financing (or
refinancing) when made exceed the greater of: (a) Eighty percent (80%) of the
fair market value of the leasehold interest and all the leasehold improvements
thereon, or (b) Eighty percent (80%) of the Replacement Costs ("Replacement
Costs" are defined as the total construction costs in the future for replacing
and/or replacing and improving the leasehold improvements on the Property). The
Company shall deliver to City promptly after execution by the Company a true and
verified copy of any Leasehold Mortgage, and/or any amendment, modification or
extension
18
thereof, together with the name and address of the owner and holder thereof. The
Company may not encumber the Company's leasehold interest as security for any
indebtedness of the Company with respect to any real or personal property now or
hereinafter owned or leased by the Company other than the leasehold interest and
leasehold improvements.
9. During the continuance of any Leasehold Mortgage until such time as
the lien of any Leasehold Mortgage has been satisfied, and provided a true and
verified copy of such Leasehold Mortgage (and any amendments, modifications or
extension thereof) shall have been delivered to the City Manager together with a
written notice of the name and address of the owner and holder thereof as
provided in Section 30(b) above:
(a) The City shall not agree to any mutual termination nor accept any
surrender of this Lease (except upon the expiration of the term hereof). In
additions the City shall not consent to any material amendment or modification
of this Lease, or waive any rights or consents it may be entitled to pursuant to
the terms hereof, without the prior written consent of Leasehold Mortgagee,
which consent shall not be unreasonably delayed or withheld.
(b) Notwithstanding any default by the Company in the performance or
observance of any covenant, condition or agreement of this Lease on the part of
the Company to be performed or observed, the City shall have no right to
terminate this Lease even though a default or an event of default under this
Lease shall have occurred and be continuing, unless and until the City Manager
shall have given Leasehold Mortgagee written notice of such default or event of
default; and Leasehold Mortgagee shall have failed to remedy such default or to
acquire the Company's leasehold interest created hereby or to commence
foreclosure or other appropriate proceedings in the nature thereof, all as set
forth in, and within the time specified by this Section 30.
(c) Subject to the provisions of subparagraph (d) immediately below,
Leasehold Mortgagee shall have the right, but not the obligation, at any time
prior to termination of this Lease, to pay all of the rent and other payments
due hereunder, to provide any insurance, to pay any taxes and make any other
payments, to make any repairs and improvements, to continue to construct and
complete the leasehold improvements, and do any other act or thing required of
the Company hereunder, and to do any act or thing which may be necessary and
proper to be done in the performance and observance of the covenants, conditions
and agreements hereof to prevent the termination of this Lease. All payments so
made and all things so done and performed by
19
Leasehold Mortgagee shall be as effective to prevent a termination of this Lease
as the same would have been if made, done and performed by the Company instead
of by Leasehold Mortgagee. Any act or inaction by a Leasehold Mortgagee shall be
at the sole discretion of the Leasehold Mortgagee.
(d) Should any event of default under this Lease occur, Leasehold
Mortgagee shall have sixty (60) days, or such additional time as is reasonably
necessary to diligently cure same, after receipt of written notice from the City
Manager setting forth the nature of such default, to remedy same and, if the
default is such that possession of the Property may be reasonably necessary to
remedy the default, Leasehold Mortgagee shall, within one hundred fifty (150)
days after receipt of such written notice from the City Manager, commence and
diligently prosecute a foreclosure action or such other proceeding as may be
necessary to enable Leasehold Mortgagee to obtain such possession; provided that
(i) Leasehold Mortgagee shall have fully cured any default in the payment of any
monetary obligations of the Company under this Lease within such sixty (60) day
period and shall continue to pay currently such monetary obligations as and when
the same are due, (ii) the Leasehold Mortgagee shall within six (6) months of
the date that it takes possession of the Property employ an Acceptable Operator,
subject to the approval of the city Manager which approval shall not be
unreasonably withheld, conditioned or delayed, for the continued operation of
the Property and leasehold improvements, under the terms and conditions of this
Lease, and (iii) the Leasehold Mortgagee shall have acquired the Company's
leasehold interest created hereby or commenced foreclosure or other appropriate
proceedings in the nature thereof within such one hundred and fifty (150) day
period, and shall be diligently and continuously prosecuting any such
proceedings to completion. All rights of the City Manager to terminate this
Lease as the result of the occurrence of any event of default shall be subject
to and conditioned upon the City Manager having first given Leasehold Mortgagee
written notice of such default and Leasehold Mortgagee having failed to remedy
such default or acquire the Company's leasehold interest created hereby or
commence foreclosure or other appropriate proceedings in the nature thereof as
set forth in and within the time period specified by this subparagraph (d).
(e) An event of default under this Lease which in the nature thereof
cannot be remedied by Leasehold Mortgagee shall be deemed to be remedied if: (i)
within one hundred and fifty (150) days after receipt of written notice from the
City Manager setting forth the nature of such default, Leasehold Mortgagee shall
have
20
acquired the Company's leasehold interest or commenced foreclosure or other
appropriate proceedings in the nature thereof (ii) Leasehold Mortgagee shall
diligently and continuously prosecute any such proceedings to completion; (iii)
within sixty (60) days after receipt of written notice of default from the City~
Manager setting forth the . nature of such default, Leasehold Mortgagee shall
have fully cured any default which does not require possession of the Property,
including a default in the payment of any monetary obligations of the Company
under this Lease, and shall thereafter continue to faithfully perform all such
obligations which do not require possession of the Property; and (iv) within six
(6) months after Leasehold Mortgagee shall have gained possession of the
Property, Leasehold Mortgagee shall have employed an Acceptable Operator and
shall continue to employ an Acceptable Operator throughout the Lease term.
(f) If the Leasehold Mortgagee is prohibited by any process, or
injunction issued by any court, or by reason of any action by any court having
jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings
involving the Company from commencing, or prosecuting foreclosure or other
appropriate proceedings in the nature thereof, the times specified in
subparagraphs (d) and (e) above for commencing or prosecuting such forec1osure
or other proceeding shall be extended for the period of such prohibition;
provided that Leasehold Mortgagee shall have fully cured any default including a
default in the payment of any monetary obligations of the Company under this
Lease, and shall continue to perform currently such obligations as and when the
same fall due, and provided that Leasehold Mortgagee shall diligently attempt to
remove any such prohibition.
(g) The City Manager shall mail to Leasehold Mortgagee a duplicate copy
by certified mail of any and all notices: (i) which the City may from time to
time give to or serve upon the Company pursuant to the provisions of this Lease,
and (ii) which the City shall have received from the State of Florida with
regard to the State Agreements. No notice by the City Manager to the Company
hereunder shall be deemed to have been given unless and until a copy thereof has
been mailed to the Leasehold Mortgagee.
(h) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether
by judicial proceedings or by virtue of any power of sale contained in the
Leasehold Mortgage, or any conveyance of the leasehold interest to Leasehold
Mortgagee (or an entity owned or controlled by it) by virtue or in lieu of the
foreclosure or other appropriate proceedings in the nature thereof.
21
or by reason of an action by a court having jurisdiction of any bankruptcy,
debtor rehabilitation or insolvency proceedings involving the Company, shall not
require the consent of the City or constitute a breach of any provision of, or a
default under, this Lease. Upon such foreclosure, sale or conveyance, the City
shall recognize Leasehold Mortgagee, an entity owned or controlled by it, or
other foreclosure sale purchaser as tenant hereunder; provided, that Leasehold
Mortgagee, an entity owned or controlled by it or other foreclosure sale
purchaser shall qualify as or shall employ an Acceptable Operator within six (6)
months of the date of such foreclosure, sale or conveyance, and shall continue
to qualify as or employ an Acceptable Operator throughout the term of this
Lease. Said Acceptable Operator shall be subject to approval by the City Manager
which approval shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding anything herein to the contrary, the Leasehold Mortgagee, an
entity owned or controlled by it, or other foreclosure sale purchaser, shall not
become liable for the performance or observance of any covenants or conditions
to be performed or observed by the Company, unless or until the Leasehold
Mortgagee, an entity owned or controlled by it, or other foreclosure sale
purchaser acquires possession of the leasehold estate. Such Leasehold Mortgagee,
an entity owned or controlled by it, or other foreclosure sale purchaser
acquiring the leasehold estate shall be liable for the performance and
observance of the terms, covenants and conditions of this Lease for so long as
such Leasehold Mortgagee, an entity owned or controlled by it, or other
foreclosure sale purchaser owns such leasehold estate. Further, provided, that
in the event there are two or more Leasehold Mortgages or foreclosure sale
purchasers (whether the same or different Leasehold Mortgages), the City shall
have no duty or obligation whatsoever to determine the relative priorities of
such Leasehold Mortgages or the rights of the different holders thereof and/or
foreclosure sale purchasers.
(i) Nothing contained herein or in any Leasehold Mortgage shall be
deemed or construed to relieve the Company from the full and faithful observance
and performance of its covenants, conditions and agreements contained herein, or
from any liability for the non-observance or non-performance thereof; or to
require or provide for the subordination to the lien of such Leasehold Mortgage
of any estate, right, title or interest of the City in or to the Property, the
leasehold improvements or this Lease. Nothing in this Lease Agreement shall be
deemed an agreement on the part of the City to subordinate its leasehold estate
in the State
22
Lease Property or its fee simple interest in the remainder of the Property to
the lien of any Leasehold Mortgage placed on the Company's leasehold interest.
(j) The City hereby subordinates and waives any and all liens on and
security interests in the Company's property which the City may now have or may
be entitled to in the future pursuant to Florida Statutes ss.83.08, to any and
all liens and security interests which the Leasehold Mortgagee may now or
hereafter have on the Company's property as security for any loan(s) now or
hereafter made by' the Leasehold Mortgagee to the Company relating to the
Property. The City hereby agrees that this subordination and waiver shall be
self-operative as to any future lien(s) or security interest(s), which the
Leasehold Mortgagee may acquire on the Company's property as security for any
loan(s) to the Company relating to the Property, and no further instrument of
waiver shall be required.
N. Section 31 of the Lease is hereby amended to read as follows:
31. Assignment and Subletting of Premises or Transfer of Stock: The
Company shall not at any time during the term of this Lease Agreement assign
this Lease Agreement or sublet any portion or part thereof, except and by virtue
of written authorization granted by the City Manager. Said authorization shall
not be unreasonably withheld, conditioned or delayed. The foregoing requirement
shall not apply to sub-leasing space to subtenants of the Company, or their
respective subtenants, provided that any such sublease is not for (i) the entire
Leased Premises, (ii) the entire Retail Facilities, as defined herein, (iii) the
entire Marina, (iv) the Restaurant (currently known as Monty's Raw Bar), located
on the ground floor of the Property, as such establishment currently exists or
as it may be expanded in the future, or (v) any other sublease that will need an
occupational license for a restaurant in order to operate its business within
the proposed subleased premises.
The Company agrees that all such subleases shall be in writing and
shall provide for the payment of rents that are not substantially below the then
fair market value of similar facilities in the Coconut Grove area of the City of
Miami. Provided, however, that in the event the Company does not self manage the
Restaurant and/or the Retail Facilities, the Company shall be permitted to
sublease not more than 2,000 square feet of the Retail Facilities to any
sublessee managing one or more of the Essential Services, at a rate that is not
less than $9 per square foot.
23
The Company is a limited partnership authorized to do business in the
State of Florida, and agrees that it will not transfer any partnership interests
or change any general partners during the term of this Agreement until such
transfer or change is approved by the City Manager of the City, which approval
shall not be wireasonably withheld, conditioned or delayed.
Bayshore Landing, LLC ("Bayshore") is a limited liability company and
upon execution of the Assignment and Assumption of Lease with Grove Marina
Market, Ltd., Bayshore shall become the "Company" for the purposes of this
Lease. Bayshore agrees that, except as provided below, it will not transfer any
membership interests in, or change managers of, Bayshore during the term of this
Agreement until such transfer or change is approved by the City Manager of the
City, which approval shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing, Bayshore shall be permitted to transfer
membership interests in the Company and change managers so long as either the
Christoph Family Trust or HMG Bayshore, LLC has a controlling interest in the
Company and the management thereof.
In the event a corporation were to become the "Company" for the
purposes of this Lease, that corporation shall not be permitted to transfer any
of its stock in the corporation or change the management thereof during the term
of this Agreement until such transfer or change is approved by the City Manager
of the City, which approval shall not be unreasonably withheld, conditioned or
delayed.
O. A new Section 38 is hereby added to the Lease, as follows:
38. Discharge of Mechanics Liens. The Company shall not suffer or
permit any mechanics liens to be filed against the fee simple title to the
Property, nor against the Company's leasehold estate or the improvements, by
reason of the work, labor, services or materials supplied or claimed to have
been supplied to the Company or any sublessee. The Company shall obtain releases
or waivers of the contractor, subcontractors and any other persons furnishing
work and materials discharging all liens and claims for all work and materials
furnished and similar releases from the architect or other recipient in the case
of payments out of the funds to the architect or other recipient. Nothing in
this Agreement shall be construed as constituting the consent or request of the
City, expressed or implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials for any specific improvement, alteration or repair
of or to the Property or the leasehold improvements. If any mechanics lien shall
at any time be filed against the Property including the leasehold improvements,
the Company shall cause it to be discharged of record or transferred to bond or
contested within thirty (30) days or such additional time as reasonably
necessary after the date the Company has knowledge of its filing. If the Company
shall fail to discharge or transfer to bond
24
or contest a mechanics lien within that period, then in addition to any other
right or remedy, the City may, but shall not be obligated to, discharge the lien
either by paying the amount claimed to be due or by procuring the discharge of
the lien by deposit in court or bonding, or in the event the City shall be
entitled, if it so elects, to compel the prosecution of any action for the
foreclosure of the mechanics lien by the lienor and to pay the amount of the
judgment, if any, in favor of the lienor with interest, costs and allowances
with the understanding that all amounts paid by the City shall constitute
additional rent due and payable under this Agreement and shall be repaid to the
City by the Company immediately upon rendition of an invoice or xxxx by the
City. The Company shall not be required to pay or discharge any mechanics lien
so long as the Company shall in good faith proceed to contest the lien by
appropriate proceedings and if the Company shall have given notice in writing to
the City of its intention to contest the validity of the lien and upon request
of the City, if necessary to protect the City's fee simple interest, shall
furnish and keep in effect a surety bond of a responsible and substantial surety
company reasonably acceptable to the City or other security reasonably
satisfactory to the City in an amount sufficient to pay one hundred ten percent
of the amount of the contested lien claim with all interest on it and costs and
expenses, including reasonable attorneys fees, to be incurred in connection with
it.
P. A new Section 39 is hereby added to the Lease, as follows:
39. Safety: The Company and each of its sublessees shall allow the City
inspectors, agents or representatives the ability to monitor compliance with
safety precautions as required by federal, state or local laws, rules,
regulations and ordinances. By performing these inspections the City, its
agents, or representatives are not assuming any liability by virtue of these
laws, rules, regulations and ordinances. The Company and its sublessees shall
have no recourse against the City, its agents or representatives from the
occurrence, non-occurrence or result of such inspection(s). Simultaneously with
the assignment of this Agreement, the Company shall contact the City's Risk
Management Department Safety Unit in writing to coordinate such inspection(s).
Q. A new Section 40 is hereby added to the Lease, as follows:
40. Americans With Disabilities Act: The Company and each of its
sublessees shall affirmatively comply with all applicable provisions of the
Americans with Disabilities Act ("ADA"), including Titles I and II of the ADA
(regarding nondiscrimination on the basis of disability) and all applicable
regulations, guidelines and standards. The City shall not require the Company to
make improvements or renovations not otherwise required by ADA or other
25
applicable law. Additionally, the Company shall, and shall require that each of
its Sublessees, take affirmative steps to ensure nondiscrimination in the
employment of disabled persons.
R. A new Section 41 is hereby added to the Lease, as follows:
41. Condemnation:
41.1 Definitions. For purposes of this Section 41, the following words
shall have the meanings set forth below:
(a) "Date of Taking" means the earlier of: (i) the date on which actual
possession of all or less than all of the Property and leasehold improvements,
as the case may be, is acquired by any lawful power or authority pursuant to the
provisions of applicable law, or (ii) the date on which title to all or less
than all of the Property and leasehold improvements, as the case may be, has
vested in any lawful power or authority pursuant to the provisions of applicable
law.
(b) "Net Condemnation Award" means the actual amount of the award paid,
in connection with or arising from the acquisition or other taking of all or
less than all of the Property and leasehold improvements, as the case may be,
less all reasonable out-of-pocket expenses incurred by the City, the Company or
any Leasehold Mortgagee in connection with obtaining such award, including,
without limitation, all reasonable attorneys' fees and disbursements incurred in
connection therewith.
41.2 Entire Property Taken by Condemnation. In the event that all of
the Property and the leasehold improvements (or such portion thereof as shall,
in the good faith opinion of the Company, render it economically unfeasible to
effect restoration thereof for its intended purpose) shall be taken for any
public purpose by the right of condemnation, the exercise of the power of
eminent domain or shall be conveyed by the City and the Company acting jointly
to avoid proceedings of such taking, the Rental pursuant to this Lease shall be
prorated and paid by the Company to the Date of Taking or conveyance in lieu
thereof, and this Lease shall terminate and become null and void as of the Date
of Taking or such conveyance; and the amount of damages resulting to the City
and the Company, respectively, and to their respective interests in and to the
Property, the leasehold improvements, and in connection with this Lease, shall
be separately determined and computed by the court having jurisdiction and
separate awards and judgments with respect to damages to
26
the City and the Company, respectively, and to each of their respective
interests, shall be made and entered.
In the event that a court shall make a single Net Condemnation Award
without separately determining the respective interests of the City and the
Company, and if the City and the Company shall not agree in writing as to their
respective portions of an award within thirty (30) days after the date of the,
final determination by the court of the amount of it, the City and the Company
agree to submit the matter to the court on stipulation for the purpose of a
judgment determinative of their respective shares. In any event, the City shall
be entitled to receive its reversionary interest in the Property and leasehold
improvements and the City's present value of Rental due under the terms of the
Lease Agreement. The Company shall be entitled to an award for the value of the
Company's leasehold estate in the Property and the leasehold improvements, which
a buyer willing but not obligated to buy, would pay therefor in an arms length
transaction. In no event shall the Company be entitled to compensation for any
fee ownership interest in the Property at the time of condemnation.
41.3 Partial Taking of Property by Condemnation.
(a) in the event less than all of the Property and/or leasehold
improvements shall be taken for any public use or purpose by the right or the
exercise of the power of eminent domain, or shall be conveyed by the City and
the Company acting jointly to avoid proceedings of such taking, and the Company
shall be of the good faith opinion that it is economically feasible to effect
restoration thereof, then this Lease and all the covenants, conditions and
provisions hereunder shall be and remain in full force and effect as to all of
the Property not so taken or conveyed (except as provided in subsection 41.4).
Subject to the rights of the Leasehold Mortgagee, the Company shall to the
extent the proceeds of the Net Condemnation Award are made available to it,
pursuant to the terms hereof, remodel, repair and restore the leasehold
improvements so that they will be comparable to the leasehold improvements prior
to the condemnation, taking into consideration the fact of the condemnation;
provided, however, that in so doing, the Company shall not be required to expend
more than the amount of any Net Condemnation Award actually received by the
Company.
(b) The Net Condemnation Award allowed to the City and the Company
shall be paid to and received by the parties hereto as follows:
27
(i) There shall be paid to the City the value of the portion of
the land so taken, which land shall be valued as if unimproved and
unencumbered;
(ii) There shall be paid to the Company any amount by which the
Company's profits and value of the Company's interest in this Lease
have been reduced by the taking;
(iii) There shall be paid to the Company the amount, required to
complete the remodeling and repairs to the leasehold improvements
pursuant to (a) above;
(iv) The City and the Company shall be paid portions of the
balance of the Net Condemnation Award or awards, if any, which are
allocable to and represented by the value of their respective interest
in the Property as found by the court in its condemnation award. In
the event that a court shall make a single Net Condemnation Award
without separately determining the respective interests of the City
and the Company and if the City and the Company shall not agree in
writing as to their respective portions of such award within thirty
(30) days after the date of the final determination by the court of
the amount of it, the City and the Company agree to submit the matter
to the court on stipulation for the purpose of a judgment
determinative of their respective shares.
41.4 Adjustment of Minimum Annual Guaranteed Rental Upon Partial
Taking. In the event a part of the Property and the leasehold improvements
thereon, if any, shall be taken for any public use or purpose by the exercise of
the power of eminent domain, or shall be conveyed by the City and the Company
acting jointly to avoid proceedings of such taking, then Rental pursuant to this
Lease Agreement shall be paid by the Company to the Date of Taking or conveyance
in lieu thereof, and after such date the Minimum Annual Guaranteed Rental for
the remainder of the Property shall be reduced by an amount equal to the Minimum
Annual Guaranteed Rental then in effect multiplied by the percent by which gross
receipts is affected by such taking.
41.5 Deposit of Condemnation Award with Escrow Agent. Unless the effect
of a condemnation proceeding shall be to terminate this Lease Agreement by
operation of law or as provided in Section 41.2 above, and except as may be
provided in any Leasehold Mortgage to, or agreement with, any Leasehold
Mortgagee described in Section 30 above, any Net Condemnation Award made in
respect of the
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leasehold improvements in a condemnation proceeding shall be deposited with the
Leasehold Mortgagee as escrow agent (unless Leasehold Mortgagee refuses to act
as such, in which case the City and the Company shall select a bank to serve as
escrow agent) to be disbursed for the cost of restoring the leasehold
improvements and for related purposes.
41.6 Rights of Leasehold Mortgagee. The City and the Company shall not
settle or compromise the amount or division of any Net Condemnation Award in any
condemnation proceeding without any Leasehold Mortgagee's reasonable consent.
Any Leasehold Mortgagee of the Company shall be entitled to appear in any
condemnation proceedings and make claim for the share of any award to which the
Company is entitled by the terms of this Section.
41.7 Temporary Taking. In the event that all or any portion of the
leasehold improvements or the Property shall be taken by the right of
condemnation or the exercise of the power of eminent domain for governmental use
or occupancy for a temporary period, this Lease Agreement shall not terminate
and the Company shall continue to perform and observe all of its obligations
(including the obligation to pay Rental as provided throughout this Lease
Agreement) as though the temporary taking had not occurred except only to the
extent that it may be prevented from so doing by the terms of the order of the
authority which make the temporary taking or by the conditions resulting from
the taking, including the loss of its possession of all or any part of the
leasehold improvements or the Property. In the event the temporary taking for
governmental occupancy is for a period entirely within the term of this Lease
Agreement, then the Company shall be entitled to receive the entire amount of
any Net Condemnation Award made for the taking, whether paid by way of damages,
rent or otherwise. If the period of governmental occupancy extends beyond the
termination of the Lease term, the City shall be entitled to receive that
portion of the Net Condemnation Award allocable to the period beyond the
termination of the Lease term. The amount of any Net Condemnation Award payable
to the Company, on account of a temporary taking of all or any part of the
leasehold improvements, shall be deemed a part of the Company's leasehold estate
for all purposes in this Lease Agreement. If the Net Condemnation Award does not
separately determine the amount applicable to the taking of the interest of the
City in this Lease Agreement and in the leasehold improvements and if the City
and the Company shall not agree in writing as to their respective portions of
such award, then the City and the Company shall submit the matter to the court
on stipulation for the purpose of a judgment determinative of the interest of
the parties.
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S. The City and the Company agree that the 1991 Memorandum is hereby
superseded and replaced by this Amendment.
T. Exhibit C: Exhibit C of the Lease Agreement is hereby deleted in its
entirety and replaced with Exhibit C-1, attached hereto and made a part hereof.
Any and all references to Exhibit C shall hereinafter be deemed to refer to
Exhibit C-1.
In addition to the public parking spaces provided in Exhibit C-1, the
Company shall have the right to use, on a non-exclusive basis and in common with
the public, the parking spaces located in: (i) the waterfront users' parking lot
immediately adjacent to the Property at 0000 Xxxxx Xxxxxxxx Xxxxx, and (ii) the
public parking lot at the corner of South Bayshore Drive and Pan American Drive.
In the event any of the above spaces are no longer available for the Company's
use, the City shall provide an alternative parking space(s) to fulfill its
obligations in accordance with Section 11 of this Lease.
4. Release of City: The Company, for itself, and its heirs, successors
and assigns, does hereby absolutely and irrevocable waive, and remise, release,
acquit, satisfy and forever discharge the City of Miami and its respective
elected officials, officials, employees, administrators, agents, consultants,
committees and members thereof, whether public employees or private citizens,
and their respective heirs, executors, administrators, personal representatives,
successors and assigns (the "Released Parties"), of and from, any and all causes
of action, actions, suits, obligations, liabilities, debts, dues, sums of money,
costs, losses, penalties, fines, expenses (including attorney's fees), damages,
judgments, claims and demands whatsoever which the Company, or any of its
successors or assigns, now has, ever had, or may have in the future, whether
asserted or unasserted, against the Released Parties, or any of them, by reason
of any matter, cause or thing whatsoever relating to, or arising out or in
connection with or resulting , in any manner from, this Lease, the State Lease
or the Waiver.
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5. No Implied Modifications: Except as specifically provided herein,
all of the terms and provision of the Agreement shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to the Lease Agreement on the day and year first above written.
ATTEST: City of Miami, a municipal
corporation of
the State of Florida
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxx Xxxxxxx
--------------------------------------- -----------------------------
Xxxxxxxxx X. Xxxxxxxx, City Clerk Xxx Xxxxxxx, City Manager
Approved As To Form And Correctness:
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx, Interim City Attorney
Approved As To Insurance Requirements:
Approved
----------------------------------------------
Xxxxx Xxxxxxxx, Risk Manager
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
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Grove Marina Market, Ltd., a Florida limited
liability company
By: Grove Marina Market, Inc., a Florida
corporation, its general partner
By: /s/ Xxxx X. O'Naghten
---------------------------------------
Xxxx X. O'Naghten
WITNESSES:
/s/ X.X. Xxxxxxxxxx
----------------------------------
Signature
X.X. Xxxxxxxxxx
----------------------------------
Print Name
/s/ Xxxxx Xxxxx
----------------------------------
Signature
Xxxxx Xxxxx
----------------------------------
Print Name
32
