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HomeMy WebLinkAboutR-02-0847J-02-663 7/17/02 RESOLUTION NO. 02— 8 4 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), APPROVING THE ASSIGNMENT OF THE CHART HOUSE INC. ("ASSIGNOR") SUBLEASE AGREEMENT TO CHLN, INC. ("ASSIGNEE"); AUTHORIZING THE CITY MANAGER TO EXECUTE AN ASSIGNMENT AND ASSUMPTION OF SUBLEASE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH TERMS AND CONDITIONS MORE PARTICULARLY SET FORTH IN THE ASSIGNMENT; AND FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE AN ESTOPPEL CERTIFICATE AND RELATED INSTRUMENTS. WHEREAS, on April 1, 1976 the City of Miami ("Lessor") entered into a lease agreement with Grove Key Marina, Inc. ("Lessee") for the use of the waterfront marina and to provide for the construction of a restaurant facility on the leased premises; and WHEREAS, on January 27, 1977, the City authorized a certain sublease agreement between Grove Key Marina, Inc. ("Sublessor") and Grove Restaurant Limited ("Sublessee") for the purpose of providing a first-class restaurant within a portion of the leased premises of Grove Key Marina, Inc.; and CITY CONNISSION TUM be, J 1.1 L 2 5 2002 rte. } 02- 84x1 WHEREAS, on September 8, 1977, the City Commission adopted Resolution No. 77-698 authorizing an amendment to the sublease between Grove Key Marina and Grove Restaurant Limited providing for an assignment of their rights to a top quality and nationally recognized restaurant chain, CHE, Inc.; and WHEREAS, CHE, Inc. merged into Chart House, Inc. effective August 1,1987 and CHE, Inc. ceased to exist; and WHEREAS, Chart House, Inc. ("Assignor") has proposed an assignment of the sublease agreement to CHLN, Inc. ("Assignee"); and WHEREAS, Chart House Enterprises, Inc., the parent company of Assignor and Assignor entered into an asset purchase agreement with Landry's Restaurants, Inc. ("Landry's) and LCH Acquisition, Inc. to transfer and assign their assets to Assignee; and WHEREAS, after such transfer LCH Acquisition, Inc. will acquire all capital stock of Assignee and Assignee will become an indirect subsidiary of Landry's Restaurants, Inc.; and WHEREAS, the sublessor of these premises has no objection to the assignment of the sublease as is provided herein; 02- 84'7 Page 2 of 4 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated herein as if fully set forth in this Section. Section 2. The assignment of the Chart House Inc. ("Assignor") sublease agreement to CHLN, Inc. ("Assignee") is approved. Section 3. The City Manager is authorized!/ to execute an Assignment and Assumption of sublease Agreement, in substantially the attached form, with terms and conditions more particularly set forth in the Assignment, and to execute an Estoppel Certificate and related instruments. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.2/ 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. -Z/ If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 3 of 4 02-- 847 PASSED AND ADOPTED this 25th day of July , 2002. ATTEST: PRI 'I LLA A. THOM SON CITY CLERK APPROVED Aq O-jJ*ORM A;le� CORRECTNESS: VILARE Y TORNEY 7d2 -- W6 5:RSR:tr:LB MANUEL A. DIAZ, MAY Page 4 of 4 02— 847 ASSIGNMENT AND ASSUMPTION OF SUBLEASE AGREEMENT KNOW BY ALL PERSONS BY THESE PRESENTS of this Assignment and Assumption of a Sublease covering certain land and improvements located at 51 Chart House Drive, Miami, Florida 33133, by and between Chart House, Inc. (hereinafter "Assignor" or "Chart House") and CHLN, Inc. (hereinafter the "Assignee"). WITNESSETH: WHEREAS, on or about April 1, 1976, the City of Miami ("City"), as Lessor, and Grove Key Marina, Inc. entered into a lease for a waterfront marine facility, and that lease provided that the parties could agree on the construction and operation of a restaurant facility on the premises, subject to ratification by the City Commission; and WHEREAS, the City Commission adopted Resolution Number 77-698 authorizing an appropriate addendum to the April 1, 1976 Lease and Resolution Number 77-698, which authorized Grove Key Marina, Inc. to enter into the January 31, 1977 Sublease Agreement (" the Sublease") with Grove Restaurant, Ltd., as Sublessee; which sublease will expire on or about June 21, 2012; and WHEREAS, the Assignor is the successor in interest to Grove Restaurant Ltd. and is assigning of all its obligation, right, title, and interest in this Sublease to Assignee CHLN, Inc. pursuant to a transaction by which Chart House Enterprises, Inc., the parent company of Chart House, Inc., and Assignor entered into an Asset Purchase Agreement dated May 17, 2002 with Landry's Restaurants, Inc. and LCH Acquisition, Inc. to transfer and assign their assets to Assignee; and WHEREAS, upon such transfer LCH will acquire all capital stock of Assignee and Assignee will become an indirect subsidiary of Landry's Restaurants, Inc.; and WHEREAS, the Assignor and Assignee must secure the written consent of the City of Miami in order to assign this Sublease; and WHEREAS, the City being duly advised in the premises is willing to grant its written consent to the Assignment of the Sublease pursuant to the terms and conditions set forth herein. NOW, THEREFORE, for value received it is agreed and understood as follows: 1. RECITALS, INCORPORATION BY REFERENCE. All of the above recitals are true and correct in all respects. All the documents referenced herein are deemed as being expressly incorporated by reference herein as though set forth in full herein and as if they were attached hereto. 2. ASSUMPTION BY ASSIGNEE. The Assignee agrees and represents to the City, that Assignee assumes and will faithfully perform all of the terms assumed, or to be performed or discharged by the Assignor under its Sublease Agreement dated January 31, 1977, as amended to date. The Assignee agrees to be bound by all the terms and conditions of that Sublease to be 02- 847 performed by Assignor, as amended to date, and further agrees to be bound to pay the City any sums due under the Sublease which have not been paid by the Assignor prior to the instant date. 3. CONSENT BY THE CITY. The City hereby consents to the assignment of this sublease from Assignor to Assignee on the express conditions that the Assignee complies with the Sublease and this Agreement. Assignee further agrees that this instrument will be construed under the laws of the State of Florida and that venue in any civil action arising out of the Sublease or this Assignment shall be in Miami -Dade County, Florida. IN WITNESS WHEREOF, the undersigned have executed this Assignment and Assumption of a Sublease this day of , 2002. ASSIGNOR: ASSIGNEE: CHART HOUSE, INC., a Delaware corporation CHLN, INC., a Delaware corporation By: President or Other Authorized Official Attest: Corporate Secretary (Affirm Corporate Seal) CONSENT BY: ATTEST: Priscilla A. Thompson, City Clerk By: President or Other Authorized Official Witness: Witness: Attest: Corporate Secretary (Affirm Corporate Seal) CITY OF MIAMI By: Carlos A. Gimenez, City Manager Date APPROVED AS TO FORM AND CORRECTNESS: Alejandro Vilarello, City Attorney 2 02- 847 CITY OF MIAMI, FLORIDA CA=9 INTER -OFFICE MEMORANDUM TO: Honorable Mayor and DATE: FILE: Members of the City Commission 4it Amn, „.ity Manager RECOMMENDATION: SUBJECT: Chart House Sublease Assignment REFERENCES: City Commission Agenda ENCLOSURES: July 25, 2002 It is respectfully recommended that the City of Miami Commission adopt the attached Resolution authorizing the assignment of the Sublease Agreement by Chart House, Inc. ("Assignor") to CHLN, Inc ("Assignee"). This resolution further authorizes the City Manager to execute an acknowledgement of the assignment and Estoppel Certificate, and related instruments, all in a form acceptable to the City Attorney. BACKGROUND: On April 1, 1976 the City of Miami ("Lessor") entered into a Lease Agreement with Grove Key Marina ("Lessee") for the use of the waterfront marine facility and to provide for the construction of a restaurant facility on the leased premises. On January 27, 1977 the City authorized a Sublease by and between Grove Key Marina (Sublessor") and Grove Restaurant Limited ("Sublessee") for the purpose of providing a first class restaurant within a portion of the lease premises of Grove Key Marina. On September 8, 1977 the City Commission adopted Resolution 77-698 authorizing an amendment to the Sublease between Grove Key Marina and Grove Restaurant Limited providing for an assignment of their rights to a top quality and nationally recognized restaurant chain CHE, Inc. Effective August 1, 1987, CHE, Inc. merged into Chart House, Inc. and CHE, Inc. ceased to exist. Chart House, Inc. has approached the City to propose an assignment of the Sublease Agreement to CHLN, Inc. pursuant to a transaction by which Chart House Enterprises, Inc., the parent company of Chart House, Inc. and Chart House, Inc. entered into an Asset Purchase Agreement with Landry's Restaurants, Inc. ("Landry's") and LCH Acquisition Inc., to transfer and assign their assets to CHLN, Inc. After the transfer LCH Acquisition, Inc. will acquire all capital stock of the new subsidiary CHLN, Inc. and CHLN, Inc. will become an indirect subsidiary of Landry's Restaurants, Inc. Landry's currently owns and operates casual dining establishments consisting of approximately 213 restaurants including Landry's Seafood House, Joe's Crab Shack, Willie G's, Rainforest Cafe, Charley's Crab, The Crab House and the Kemah Boardwalk. Landry's is the second X44 Honorable Mayor and Members of the City Commission Page 2 largest operator of seafood restaurants chain in America with a market capitalization in excess of $800,000,000. With the acquisition of the Chart House chain, Landry's business operations are expected to double in size. FISCAL IMPACT There is no financial impact to the current general fund of the City since the minimum base rent and percentage rent shall remain the same. nCAG:DB:LB: K:eb: Memo CC Assignment of Chart House Sublease 02® 847 OT -11-02 15:23 From -MEAL GERBER T-536 P.02/14 F-983 • J1 jr !PACO "67 AGREEMENT OF XMGER Pursuant to Sectioa 252 This Agreement of Merger is ef`ec-144 of August 1 , 1987 (the "Merger Agreement"), by and between CHART HOUSE, INC., a Delaware corporation (hereinafter sometimes called "CHI" and sometimes called the "surviving corporation"), and CHE INC., a Louisiana corporation ("CHE"), said corporations being herein- after collectively called the "constituent corporations." RECITALS A. CSE is a corporation organized and existing under the laws of the State of Louisiana, having been incorporated on January 4, 1974, under the provisions of the Business Corporation Law of the State of Louisiana. 8. CHI is a corporation organized and existing under the laws of the State of Delaware, having been incorporated on June 26, 1985, under the provisions of the General Corporation. Law of the State of Delaware. C. CHE has authorized capital stock consisting of 200 shares of Common Stock, par value $10.00 per share, of which 100 shares are issued and outstanding as of the date of this Merger Agreement, and 400,000 shares of 9% Cumulative Exchangeable Redeemable Preferred Stock, par value $1.00 per share, all of which have been retired and cancelled. 125171084b/C138 02- 847 07-11-02 15:23 From -HEAL GERBER T-536 P.03/14 F1 -A63 D. The authorized capital stock of CHI consists of 100 shares, of which 8 shares are Class A Voting Common Stock, par value $0.01 per share, (the "Class A Stock"), and 92 shares are Non -Voting preferred Stock, par value $0.01 per share (the "Preferred Stock"). All of the shares of the Class A Stock are issued and outstanding as of the date of this Merger Agreement and are held by Pacific Ocean Enterprises Inc., a Delaware corporation ("Pacific"). All of the shares of the Preferred Stock are issued and outstanding as of the date of this Berger Agreement and are held by CRE. E. The Hoards of Directors of each of the constituent corporations, respectively, deem it advisable and in the best interests of those corporations and the respective stockholders of those corporations that CRE be merged with and into CHI on the terms and conditions hereinafter set forth and, by duly adopted resolution$, have approved and adopted this Merger Agreement and directed that this Merger Agreement be submitted to their respective stockholders For approval and adoption. NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto do hereby agree that CRE and CHI, the constituent corporztions, be merged into a single corporation which shall be CHI, pursuant to the laws of the State of Delaware, and do hereby agree, prescribe and set forth the terms and conditions of the w 2 125111084b/C138 02 - S 47 47 07-11-02 15:23 From-NEAL GERBER T-536 P.04/14 F-983 9, fjs-' I P. -CC 5 9 Merger, the manner of carrying the same into effect and the manner and basis of converting the shares of the constituent corporations into shares of the surviving corporation. ARTICLE I MERGER AND NAME OF SURVIVING CORPORATION CHE shall be merged with and into CHI in accordance with the applicable provisions of the General Corporation Law of the State of Delaware and the provisions of this Merger Agreement and, upon effectiveness of the Merger, the separate existence of CUE shall. cease and CHI shall continue its corporate existence under the laws of the State of Delaware under the name "Chart House, Inc." as the surviving corporation. ARTICLE II CERTIFICATE OF INCORPORATION AND BYLAWS OF 9URVIVINC CORPORATION Upon effectiveness of the Merger, the certificate of incorporation of the surviving corporation shall be amended and restated to read in its entirety as set forth in Annex I, attached hereto and incorporated herein by this reference. Upon effectiveness of the Merger, the bylaws of CHI shall become and shall continue to be the bylaws of the surviving corporation until amended in accordance with the provisions thereof and applicable law. 3 - 12S171066b/C136 02- 847 OT-11—OZ 15:24 From—NEAL GERBER _. T-536 P.05/14 F-983 ARTICLE III BOARD OF DIRECTORS OF SURVIVING CORPORATION As of the effective date of the Merger, the names of the members of the Hoard of Directors of the surviving corporation shall be as follows: Robert E. Chappell, Jr. John H. Creed Frank A. Godchaux III Patrick E. Goddard w. David Ranks Allan Shawn Solder Daniel S. O'Connell Arthur J. Nagle ARTICLE IV MANNER OF CONVERTING SHARES OF STOCK OF CON- ITOENT CORPORATIONS The maLnner and basis of converting the shares of each of the constituent corporations into shares of the surviving corpora -tion shall be as follows: 1. upon effectiveness of the Merger, each of the outstanding shares of CHI Class A Stock at the time of the Kerger shall be converted into 12.5 shares of Common Stock of the surviving corporation, while each of the outstanding shares of the CHI Preferred Stock at the time of the merger shall be retired and cancelled. 2. Upon effectiveness of the Kerge,:, each of the outstanding shares of CSE Common Stock at the time of the Merger shall be retired and cancelled. 125171084b/t138 U2-- 847 07-11-02 15:24 From-NEAL GERBER T-536 P.06/14 F-993 100Y 0...r. �; c� x'11 ARTICLE V SUBMISSION TO SHAREHOLDERS AND EFFECTIVENESS This Merger Agreement shall be submitted for consideration and vote or written consent by the shareholders of each of the constituent corporations as required by applicable law, and, if adopted by the requisite votes or written consents of the shareholders of each of the constituent corporations, then this Merger Agreement executed by the President or a Vice President and the Secretary or an Assistant Secretary of each of the constituent corporations and certified by one of those officers of each of the constituent corporations shall be delivered to the Secretary of State for the State of Delaware for filing all in accordance with -the applicable provisions of the General Corporation Law of the State of Delaware. The effective date of the Merger provided for by this Merger Agreement shall be the date on which the filing in the office of the Secretary of State of the State of belaware is completed. Thereafter, a copy of this Merger Agreement. certified by the Secretary of State of the State of Delaware shall be filed with the Secretary of State of the State of Louisiana in accordance with the applicable provisions of the Business Corporation Law of the State of Louisiana. The officers of each of the constituent corporations - 5 - 125171084b/C138 02— 847 07-11-02 15:24 From-NEAL GERBER T-536 P-07/14 F-983 shall *xecute all such other documents and shall take all such other action as may be necessary to make this Merger Agreement effective. ARTICLE VI TRANSFER OF ASSETS ANO LIABILITIES Upon effectiveness of the Merger: 1. The separate existence of CUR shall cease, and the corporate existence of CHI shall continue as the surviving corporation. Z. The surviving corporation shall have all the rights, privileges, immunities and powers and shall be subject to all the duties and liabilities of a corporation organized under the General Corporation Lay of the State of Delaware. 3. The surviving corporation shall thereupon and thereafter possess all the rights, privileges, immunities, licenses and franchises, of a public as well as of a private nature, of each of the constituent corporations; and all property, real, personal and mixed, and all debts due on whatever account, and all other choses in action, and all and every other interest, of or belonging to or due to each of the constituent corporations, shall continue or be taken and deemed to be transferred to, and vested in the surviving corporation without further act or deed. - 6 - 125171084b/C138 02- 847 07-11-02 15:24 From-NEAL GERBER T-538 P.08/14 F-983 4. The surviving corporation shall thenceforth be responsible and liable for all liabilities and obligations of each of the constituent corporations; and any claim existing or action or proceeding pending by or against either of the constituent corporations may be prosecuted as if the He>Irger had not taken place or the surviving corporation may be substituted in its place. Neither the rights of creditors nor liens upon the property of either of the constituent corporations shall be impaired by the Merger. ARTICLE VII TERMINATION OF AGREEMENT AND ABANDONMENT OF XERGER This Merger Agreement.and the Merger contemplated hereby may be terminated and abandoned at any time before this Merger Agreement has been filed With the Secretary of State of the State of Delaware, whether before or after approval of this Merger Agreement by the respective shareholders of the constituent corporations, as follows: (a) By mutual consent of the Boards of Directors of CHI and CRE; or (b) By the Hoard of Directors of either CKI or CHE if the Berger shall not have become effective by July 1, 19870 which date may be extended by mutual agreement of the eoaras of Directorsof CHI and CUE. - 7 - 125171084b/C138 02- 847 07-11-02 15:24 From-NEAL GERBER T-536 P.09/14 F-983 IN WITNESS WEEAF•OF, each of the constituent corporations has caused this Xerger Agreement to be signed in its corporate name by its President or one of its Vice Presidents, as of the thirty-first day July, A.A. 1987. ATTEST: MWTeg B. Eze , Se DUR y ATTEST - 8 - 12S171084b/C139 02-- 847 07-11702 15:25 From -MEAL GERBER CERTIFICATE of SECRETARY 1-536 P.10/14 F-993 �nno 1:15 I, Andrew B. Ezell, the Secretary of Chart House, Inc., a Delaware corporation, hereby certify that the Agreement of Merger to which this Certificate is attached, after having been first duly signed an behalf of, the corporation by the President and Secretary of said corporation, was duly approved and adopted by written consent of the sole voting stockholder of Chart House, Inc. dated as of July U, 19871 by the holder of the majority of the outstanding stock entitled to vote thereon. IW WITNESS WAERVOr, the undersigned has duly executed this Certificate as of this 31st day of July 1987. 125111O84b/C136 ' r` A 7 07-11-02 15:25 From-NEAL GERBER CERTIFICATE OF SECRETARY T-536 P.11/14 F-983 1, Andrew S. Ezell$ the Secretary of CHE Inc., a Louisiana corporation, hereby certify that the Agreement of Merger to which this Certificate is attached, after having been first duly signed on behalf of the corporation by the President and Secretary of said corporation, was duly approved and adopted by written consent of the sole shareholder of CHE Inc. dated as of :.uly 31, 1987, by the holder of the majority of the outstanding stock entitled to vote thereon. IN WITNESS WHEREOF, the undersigned has duly executed this Certificate as of this 31st day of Jn1Y 1987. Sec etary 125171084b/C138 02-. 847 07 -II -02 15:25 From-NEA1 GERBER ANNEX I T-536 P.12114 F-983 3061 (Yie"rxi :J;7 RESTATED CERTIFICATE OF INCORPORATION OF CHART ROUSE, INC. This Restated Certificate of Incorporation inte- grates, amends and restates the provisions of the Certificate of Incorporation of Chart House, Inc. which was filed with the Delaware Secretary of State on June 26, 1965 and has been duly adopted in accordance with the provisions of Sections 242 and 245 of the Delaware General Corporation Law. FIRST: the name of the corporation is "Chart House, Inc." SECOND: The corporation's registered office in the State of Delaware is 1209 Orange Street, in the city of Wilmington, County of New Castle, and the name of the corporation's registered agent at such address is The Corporation Trust Center. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The corporation is authorized to issue only one class of stock. The total number of shares of stock, which the corporation shall have authority to issue shall be 1,000, and each share shall have S.ol par value. FIFTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is authorized to make, alter or repeal the bylaws of the corporation. SIXTH: No director of the corporation shall be personally 1.able to the corporation or any stockholder of the corporation for monetary damages for breach of fiduciary duty as a director, provided that this provision shall not limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or it9 stockholders, (ii) for acts or omissions not in good faith or - 1 - 12S171084b/C135 02- 847 07-11-02 15:25 From-NEAL GERBER T-536 P.13/14 F-983 which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Lav of Delaware, o: (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General corporation Lav is hereafter amended to authorize the further elimination or limitation of the liability of a director, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of the foregoing provi- sions of this Section Sixth by the stockholders of the corpo- ration shall not adversely affect any broader protection of a director of the corporation existing at the time of such repeal or modification. IN FATNESS WHEREOr, the undersigned President and Secretary of Chart House, Inc. have duly executed this Restated Certificate of Incorpc '*onasf this 31st day of July 1987, and acknowledge eg to be the act and deed of the corporation and th t t stated herein are true. 10 - 2 - 125171084b/C138 RECENED FOR RECCORD AUGI 3 1997 W1111em M- Honeys Recorder 02- 847 2 07-11-02 15:25 F rwNEAL GERBER T-536 P.14/14 F-983 WRITTEN CONSENT OF SOLE SHAREHOLDER OF CHE INC. The undersigned, being the sole shareholder of CHE Inc., a Louisiana corporation (the "Corporation"), acting without a meeting, does hereby subscribe its written consent, pursuant to Section 12:76 of the Louisiana Business corporation Law, to the following resolutions: RESOLVED, that the merger of the Corporation with and into .its parent, Chart House, Inc., a Delaware corporation, on the terms and conditions set forth in the Agreement of Merger in the fora approved by the Board of Directors of this corporation at a meeting held July 29, 1987 and attached hereto as Exhibit A (the "'Merger Agreement-), be, and it hereby is, approved: and RESOLVED FURTHER, that the Merger Agreement be, and it hereby is, approved and adopted. Dated as of July 31, 1987 1251-76 0- 84 Grove Restaurant Ltd. 2951 S. Bayshore Drive Miami, Florida 33133 Re: Assignment of Sublease by Grove Restaurant Ltd. to CHE, Inc. Gentlemen: The City of Miami as Lessor to that certain lease by and between the City of Miami, a Municipal Corporation and Grove Key Marina, Inc., dated April 1, 1976 covering the premises described on Exhibit A attached hereto and made a part hereof, a portion of which premises was subleased by Grove Key Marina, Inc. to Grove Restaurant Ltd. by sublease dat January 31, 1977 and amended by document dated /$ 1977 hereby consents to the Assignment of &aidamended sublease to CHE, Inc., a Louisiana Corporation. ,fit t: D I ity Clerk City of Miami, a Municipal Corporation, State of Florida Approved as to Form and Correctness: 02- 847 Risk Manalyement urv�s,on AMENDMENT TO SUBLEASE DR. JANUARY 31. 1977 RECEIVED oyor��Fi This Amendment is entered into as of ZPANsmagj:]„9�9, between GROVE KEY MARINA, INC., a Florida corporation as "Sublessor" and GROVE RESTAURANT LIMITED, a Florida limited par6ership as`= "Sublessee". City Of ;.;;�:.... .... . Amendment to Sublease The Sublease between Grove Key Marina, Inc. and Grove Restaurant Limited dated January 31, 1977, is hereby amended as follows: 1. The first paragraph of Paragraph 5 is deleted and replaced with the following: .. ti 5. Improvements of City Upc.n commencement of construction of the restaurant, the City agrees to permit construction and installation of the following improvements to be paid for at the sole cost of the Sublessee: 2. Paragraph 1O(B) is deleted and replaced with a new paragraph 10(b) reading as follows: (B) Ad Valorem Taxes In the event that the Restaurant Facility becomes subject to ad valorem taxation on the leasehold interest or the possessory interest attributable to the land owned by the City which is subleased for the Restaurant Facility, then these ad valorem taxes shall be paid by the Company or its Sublessee. Ad valorem taxes attributable to the building, equipment or fixtures of the Restaurant Facility shall be paid by the Sublessee. 3. Paragraph 14 is deleted and replaced with the following: 14. -Property Taxes During the term hereof the Sublessee shall pay all taxes of whatever nature lawfully levied upon or assessed against the Premises and improvements, property, sales, rentals or operations thereon, including but not limited to ad valorem taxes. 5C 02- 847 4. A new paragraph added as Paragraph 36 to '00 d0� read as follows: 36. City's Responsibilities Nothing contained in the Sublease dated January 31, 1977 or any Amendment thereto shall be construed, nor is any such construction intended by the parties, to obligate the City to expend any funds to satisfy any debts., obligations�or other undertakings of the Sublessee. Neither the City's taxing powers or its credit are in any manner or means pledged or encumbered by this agreement. The intent of the parties regarding the financing arrangement specified in Paragraphs 8 and 9 of the Sublease dated January 31, 1977, is that the City's_, r claim for rent -in the event of a default, as against I any of Sublessee's property -is to be subordinate to the Financing Agency's claim to the same property, if secured by a financing arrangement. The City shall not be obligated to assume any fiscal responsibilities under any such financing arrangements. Similarly, with regard to any pledge of the leasehold interest, in the.event of a default the pledgee's sole remedy shall be to assume the defaulting Sublessee's duties and obligations under the Sublease. 5. Except as expressly modified herein, all terms and conditions of the Sublease dated January 31, 1977, as amended on September 15, 1977, remain in full force and effect -2- U2-- 847 • �' an, IN WITNESS WHEREOF, the parties have executed +�Oy D this Amendment to Sublease on the day and year first above r�P written. GROVE KEY MARINA, INC., Sublessor By: z. A, President ATTEST: ecre W Corporate Seal GROVE RESTAURANT, LTD., Sublessee By: • Reneral Farielr� CONSENT THE CITY OF MIAMI, a municipal corporation of the State of Florida, hereby consents and agrees to be bond by the provisions hereof. Atte ity Clerk Approved as to form and THE CITY OF MIAMI, a municipal corporation of the State of 'Florida By • ` Ct tyr ager -3- 02- 847 AMENDMENT TO SUBLEASE SEP l;) 1977 � 1 DIRECTVtt OF THIS AMENDRENT TO SUBLEASE is entered``,. toas o.��� /- , 1 `. 1977, between GROVE KEY MARINA, a Florida corporation, and GROVE RESTAURANT LIMITED, a Florida limited partnership: 1. Amendment to Sublease. This Amendment to Sublease amends the Sublease Agreement between the parties hereto dated January 31, 1977, to the extent specifically stated herein. All other provisions of the Sublease Agreement between the parties dated January 31, 1977, remain in full force and effect. 2. The Sublease Agreement dated January 31, 1977, (hereinafter the "Sublease") is amended as follows (paragraph numbers correspond to the paragraphs of the Sublease): 6.(c) The first sentence of paragraph 6.(c) is deleted and in its place the following shall be substituted. A paved parking area with parking spaces in conformity with the Planning and Zoning Ordinance of the City of Miami as it presently exists or may be amended prior to the issuance of the building permits for the improvements contemplated herein. 6.(j) Paragraph 6.(j) shall be deleted and in its place substitute: In the event of extraordinary circum- stances beyond the control of the Sublessee, which require additional time for the Sublessee to meet the construction schedule herein contained, the Sublessee may request a reas- onable extension of time in order to complete construction. Upon such request, the Sublessor with the approval of the City Manager shall not unreasonably withhold approval of such request. 8. Paragraph 8 of the Sublease is deleted and the following substituted therefor: (a) All improvements constructed on the restaurant facility premises by the Sub- lessee shall be personal property and the Sublessee shall 02- 947 have legal title thereto during the term of this Sublease. Upon the expiration or termination of this Sublease title to all permanent improvements constructed on the premises shall vest in the City of Miami. (b) Sublessor agrees 'that all trade fixtures, machinery, equipment, furniture or other personal property of whatever kind and nature kept or installed on the subleased premises by the Sublessee shall not become the property of the Sublessor or a part of the realty unless permanently affixed to the subleased premises and may be removed by Sublessee, in its discretion, at any time and from time to time during the entire term of this Sublease and any renewals. Sublessee agrees that it will repair any damage to the premises occasioned by the removal of said trade fixtures, machinery, equipment, furniture or other personal property in a good and workmanlike manner. 9. Paragraph 9 of the Sublease shall be amended to add the following sentence: Notwithstanding the foregoing, no approval shall be required of the Sublessor or the City - Manager to the extent that the pledge of the leasehold interest does not exceed the certified cost of constructing the premises or $900,000, whichever is less. The Sublessee shall not be required to furnish agreements and legal instruments as re- quired above where approval is not required. 13. The first paragraph of paragraph 13 of the Sublease shall be deleted and the following paragraph substi- tuted: For a period of two years after the close of each lease year of the term hereof, Sublessee shall keep on the premises, or such other place approved by Sublessor and the City, true, accurate, and complete records and accounts of all sales, rentals, and business being transacted upon or from this premises and shall give Sublessor or Sublessor's representative access during reasonable business hours to examine and audit such records and accounts. 15. The final sentence of paragraph 15 shall be deleted and the following substituted in its place: Upon termination of this Sublease for any cause whatsoever, all 2 02-, 8_47 , licenses, including liquor. license, :hal: become the property of Sublessor, its successors or assigns, to he used only upon proper transfer into the name of Sublessor, its successors or assigns and out of the name of Sublessee, its successors or assigns. 16. Paragraph 16(3) shall be deleted and the following substituted therefor: Minimum hours of operation shall be as follows: Dinner o�nday through Sunday 5:00 p.m. to 11:00 P.M. Cocktails Hours to comply with City of Miami Code and Ordinances. Any changes in these minimum hours of operation aca subject to the reasonable approval of the City Manager. Nothing herein contained shall be construed to authorize hours contrary to the laws governing such operations. 18. Paragraph 18 shall be deleted and the following substituted therefor: During the term hereof, Sublessee, at Sublessee's expense, shall to the reasonable satisfaction of the Sublessor, keep and maintain the premises and all improve- ments thereon in good and sanitary order, condition and repair, consistent with the operation of a first-class quality restaur- ant in the Miami area. Upon expiration or termination hereof, Sublessee shall surrender and deliver up to Sublessor the premises and all permanent improvements thereon in good and useable condition ordinary wear and tear expected. 21. The last paragraph of Paragraph 21 shall be deleted and the following substituted: The insurance provided herein shall be written by a top rated nationally recognized company. The proceeds payable under Section E hereof shall he assignable to the Sublessor and the City of Miami pursuant to Paragraph 22 of this Sublease. 22. The final paragraph of Paragraph 22 of the Sublease shall be deleted and the following substituted: in the event of destruction or damages to the restaurant facility which renders the property untenantable for a period of ninety -3- 02- 847 lay:: or l,)n�,cr., for which insurance procceds wil;, L-2 payable, .iublassuc shall have the option to terminate this Sublease, in uhich case all insurance proceeds except those rcnresent:ns; the book value of Sublessee's improvements shall he paid into a joint account of r..he City and the Sublessor and reconstruct t,n may proceed as otherwise set forth above. 23. Paragraph 23(b) of Paragraph 23 shall be deleted and the following substituted: If Sublessee fails to male the rent payments as set forth herein and said payment is not made :oithin five working days after written notice is given to Sublessee, or Paragraph 23(c) of Paragraph 23 shall be deleted and the following substituted: If Sublessee fails to perform in accordance with any of the other terms and conditions herein contained, and such default is not cured within thirty days after written notice is given to Sublessee or if Sublessee within such period has not undertaken all reasonable best efforts to cure such default as soon as — reasonably practicable, then Sublessor, at Sublessor's option and without further notice or demand to Sublessee, may enter into possession of the premises and all improvements thereon and remove all persons therefrom. Sublessor may then either termi:ate this Sublease or relet the premises subject to the approval of the City Manager, which approval shall not be un- reasonably withheld. In the event Sublessor elects to relet the premises for such rent and upon such terms as Sublessor in good faith may be able to obtain, Sublessee shall continue to pay any deficiency between the rent obtained by such reletting and the rent due hereunder. 3. Short Form Sublease. The parties hereto agree to execute a memorandum or short form sublease for the purpose of recording same in rhe public records of Dade County, Florida in order to place ::uLsequent parties on notice of the existence of this L•:ase . 4 847 IN WITNESS WHEREOF, the parties have executed this Amenitwnt to Sublease on the day and year first above written. GROVE KEY MARINA, INC., Sublessor i By: Presi ent 111 ATTEST: Secretary Corporate Seal GROVE RESTAURANT, LTD., Sublessee By: 'I. Generar Partner CONSENT THE CITY OF MIAMI, a municipal corporation of the State of Florida, hereby consents and agrees to be bound by the provisions hereof. Att'cst. City C er J 11 sApproved as to form and :coczectness: City Attorne 5 THE CITY OF MIAMI, a municipal corporation of the State of Flori 1 � By: 1 Manage I SUBLEASE AGREEMENT THIS SUBLEASE AGREEMENT is entered into as of 1921 between GROVE KEY MARINA, INC., a Florida corporation of 3385 Pan American Drive, Miami, Florida, as Sublessor ("Sublessor") and GROVE RESTAURANT, LTD., a Florida limited partnership, as Sublessee ("Sublessee"), with respect to the following circumstances: (a) Sublessor is a party to that.certain Lease Agreement dated April 1, 1976 (the "April 1976 Lease") between Grove Key Marina, Inc. ("Grove Key") and the City of Miami, a municipal corporation of the State of Florida ("the City"). (b) Tha April 1976 Lease provided for Grove Key and the City to negotiate for constructing and operating a restaurant facility, subject to ratification by the City Commission; and (c) The City Commission adopted Resolution 77- 1�`fp authorizing an Addendum to the April 1976 Lease and Resolution 77- Ccli authorizing Urove Key to enter into this Sublease Agreement. IN CONSIDERATION of the foregoing and the mutual covenants contained herein, the parties hereto agree as follows: 1. Description of Premises. For and in consideration of the mutual promises herein contained, Sublessor hereby leases to Sublessee, and Sublessee hereby leases'from Sublessor certain real property (the "Premises") described in "Exhibit A" signed by the parties hereto and incorporated by reference. 2. Term. The term shall be thirty years commencing on June 33, 1979, or the date Sublessee commences business, whichever occurs first subject to the provisions of paragraph. 3 herein contained. mo� 02- 847 3. Conditions Subsequent. (A) Suitability of Premises: Sublessor and Sublessee agree and acknowledge that the obligations of Sublessee are conditioned upon Sublessee's being able to secure a building permit and other approvals and assurances necessary to confirm that Sublessee shall have the right to construct and operate a first class restaurant and cocktail lounge on the Premises. (i) Within thirty days from the date hereof, Sublessee at its expense shall obtain a complete and accurate survey of the Premises containing an accurate metes and bounds description thereof. Within ninety days from the date hereof, Sublessee shall take steps to confirm with the appropriate governmental authorities and public utilities that there are or will be available by not later than the opening of the restaurant for business sufficient electrical, water, sewer, gas and telephone utilities to serve the restrurant. (ii) Within ninety days from this date Sublessee shall conduct soil test borings on the Premises to determine its suitability for the construction of the restaurant, and Sublessee shall have reasonable access to the premises for such purpose. Sublessee's obligations are conditioned upon the Premises being suitable for construction of the restaurant without necessity for incurring any extra -ordinary foundation expense which would cause the estimated cost of the restaurant to be substantially exceeded. (iii) Sublessor covenants that there is not to the knowledge of the Sublessor any threatened condemna- tion action with respect to the Premises or any building moratorium by any governmental agency or any injunction by any person under "anti -pollution" laws, ordinances or regulations -2- o2--, 847 TA or otherwise, which will have the effect of preventing or limiting the construction or operation of a restaurant and cocktail lounge on the Premises, or the Sublessee's right to tap into the sewer and water mains serving or being proposed to serve the Premises. (B) Financing: Sublessee shall promptly undertake to obtain sufficient financing for construction of the restaurant on the Premises, whether by sale of an equity participation in the restaurant operation, by sale of a revenue bond or otherwise. Sublessee shall use its best efforts to obtain such financing as soon as practical, but such financing arrangements shall be closed by no later than December 31, 1977. Promptly after such financing arrangements have been closed, Sublessee shall notify Sublessor thereof. For purposes of this Sublease, financing shall be deemed "obtained" only upon Sublessee's obtaining an enforceable commitment from institutional or other investors having financial strength sufficient to finance construction of the restaurant to the ex+ent of $600,000., in the reasonable judgment of Sublessor. In the event of a default by any person responsible for furnishing such financing, the obligations of Sublessee hereunder shall be extended for a reasonable period, not to exceed 90 days, during which the Sublessee shall use its best efforts to obtain alternate financing. Upon notice to Sublessor within such period that such alternate financing cannot be obtained, Sublessee and Sublessor shall be relieved of all further obligations hereunder and this Sublease shall thereupon terminate. (C) Liquor License: Sublessee shall apply for a liquor license from the appropriate governmental authorities. This sublease shall be specifically conditioned upon the issuance of a liquor license to the Sublessee permitting only t WA 02-A 847 the dispensing and sale of alcoholic beverages on the premises for consumption on the premises. Sublessee shall use every reasonable effort and due diligence to fulfill this condition. In the event that the Sublessee is unable to obtain the required liquor license then this Sublease shall be terminated. 4. Use. Sublessee covenants that it will not, under any circumstances, discriminate against individuals desiring to use the facilities and that all facilities located on the Premises shall be made available to the public, subject to the right of the Sublessee to establish and enforce rules and regulations to provide for the orderly operation and security of such facilities. The Sublessee shall use the Premises for the sole purpose of constructing, equipping, furnishing, and operating a dining facility, cocktail lounge and banquet facility, and for purposes incidental thereto, and for no other purpose whatsoever, except upon written approval of the Sublessor and the City Manager. 5. Improvements of City. Upon commencement of construction of the restaurant, the City agrees to commence construction and installation to the leased premises of the following improve- ments and to pursue such work with due diligence: (a) Access road with street lighting with underground cables with electrical stubouts for future ornamental lighting, such ornamental lighting to be installed by the Sublessee. The access road is to be located in approximately the location indicated in Exhibit A attached hereto, commencing at South Bayshore Drive providing public access to the leased premises. -4- U2- 847 �' 1 (b) Water supply to the leased premises to the property line closest to the Restaurant in an amount adequate to service the Restaurant and premises. (c) Adequate sanitary sewer. 6. Improvements of Sublessee. Within 30 days after the last of each and every of the conditions in #3A and 3B have been met, the Sublessee shall submit to the Sublessor and the City schematic plans for the Restaurant facility. Sixty days after approval by the Sublessor and the City of the schematic plans, preliminary plans shall be submitted. Final working drawings and specifications shall be submitted 90 days after the Sublessor and the City's approval of the preliminary plans. After approval of the working drawings by all appropriate agencies thirty days will be allowed for the receiving of bids and 15 days to award same and commence construction. Upon award of big, the Sublessee shall be permitted 12 months for the construction of the above-mentioned facilities, which shall include the following: (a) A restaurant complex containing a series of cocktail and dining areas, aesthetically and tastefully designed, decorated and furnished, featuring broad use of stone and wood and effective use of concrete materials assuring maximum structural safety from the elements and at the same time providing top quality design and eye appeal. (b) The restaurant facility shall consist of approximately 12,000 square feet with not less than 200 person dining capacity and cocktail lounges serving not less than 125 guests. -5- 02- 847 (c) A paved parking area with parking spaces in conformity with the Planning and Zoning Ordinance of the City of Miami as it presently exists or may be amended. The restaurant shall have no less parking spaces than required under such Ordinance. (d) Development of the site by the Sublessee shall consist of a luxurious park -like setting featuring gardens and native greenery, with outdoor areas for restaurant use during favorable climatic conditions. (e) The Sublessee shall be solely responsible for complete telephone service to the facility. (f) The Sublessee shall construct a walkway along the bayfront portion of the leased Premises. The public shall have free and unobstructed use of this walkway during the term of this Sublease. (g) All utilities required for the operation of the facility shall be placed underground at the Sublessee's expense. Any electrical service provided to the Premises shall be placed underground and such service shall be the responsibility of the Sublessee. (h) All improvements of Sublessee shall be solely at Sublessee's cost and expense and shall be performed in a good and workmanlike manner in accordance with sound construction practices. (i) The total cost of Sublessee's improvements on the Premises shall not be less than $600,00.0. 02- 847 V01 -6- (j) in the event of extraordinary circumstances, beyond the control of the Sublessee, which require additional time for the Sublessee to meet the construction schedule herein contained, the Sublessor with the approval of the City Manager may, at their discretion, extend the period for obtaining financing and/or construction for an additional period not to exceed 120 days. 7. Construction Bond. Sublessee shall, prior to commencement of construction on the Premises by Sublessee, furnish Sublessor a surety bond naming Sublessor and Sublessee as the Principals and Owners, covering 100% of the cost of constructing the improvements, including labor and material. Sublessee shall keep the Premises and such improvements free and clear of liens for labor and material and shall hold Sublessor and the City harmless from any responsibility in respect thereto. 8. Ownership of Improvements. All improvements, furnishings, and equipment constructed or installed on the Restaurant Facility premises by the Sublessee shall be personal property and the Sublessee shall have legal title thereto during the term of this sublease. In the event Sublessee decides to finance the purchase and installation of certain furniture, fixtures, and equipment by use of a financing agreement under the Uniform Commercial Code, a conditional bill of sale, a leasing agreement, or some other security or title retention agreement ("Financing Agreement"), the parties acknowledge that title to the.equipment may be in the name of the company providing the financing ("Financing Agency") for the period of financing, and that the Financing Agency's right to such equipment is paramount to the rights of the Sublessor and the City hereunder. In connection therewith, the Sublessor Mz 02-- 847 M, and City agree to execute such waiver and consent forms as are customarily required by the Financing Agency. The Sublessee will use its best efforts to require that the Financing Agency notify the Sublessor and the City of any default by Sublessee under any Financing Agreement, in the event of which the Sublessor may either (i) cure the Sublessee's default, upon which Sublessee shall assign to Sublessor its rights under the Financing Agreement; or (ii) require that the Sublessee replace the equipment removed by the Financing Agency with equipment of equal or better value. Upon the termination of the Financing Agreement the Sublessee shall obtain title to the equipment subject to such Financing Agreement or shall replace such equipment with comparable equipment of equal or better value. Upon the expiration or termination of this Sublease, title to all permanent improvements constructed on the Premises shall vest in the City of Miami subject to the rights of any financing agency. Title to all supplies, furnishings, inventories, removable fixtures and removable equipment and other personal property shall remain vested with the Sublessee, and the Sublessee shall have the right to remove such items, excepting Licenses, from the p Premises unless Sublessee is in default hereunder. 9. Pledge of Leasehold Interest. The Sublessee may pledge this leasehold interest as security for a bona fide loan, subject to the approval of the Sublessor and the City Manager of the City, which shall not be unreasonably withheld, from reputable lenders or lending institutions, but not beyond the sublease term. There shall be no pledge of leasehold interest as provided herein unless approved in writing by the Sublessor and the City Manager, which shall not be unreasonably withheld. Prior to -8- U2- 8.47 obtaining written approval, the Sublessee shall furnish to the Sublessor and the City Manager all agreements and legal instruments pertaining thereto involving the pledge of leasehold interest as security. 10. Rent for Restaurant Facility. (Rent shall be paid by the Sublessee directly to the City for this restaurant facility on the following basis: (A) Rent: During the term of this lease the Sublessee shall pay to the City a minimum annual rent of Thirty Six Thousand Dollars, payable as follows: (i) An amount equal to three and one-half percent (3,58) of gross sales as herein defined shall be paid monthly to the City on or before the fifteenth day of the following month; (ii) Within fifteen days after the close of each lease year, the Sublessee shall pay to the City the amount if any, by which the payments made pursuant to paragraph (i) above were less than Thirty Six Thousand Dollars. (iii) During the month in which the Restaurant Facility commences operation, the first day of that month shall be considered the day from which each lease year is calculated. However, the minimum annual rent for the first lease year shall be reduced prorata for the number of days during the first month which the Restaurant Facility was not yet in operation. (B) Ad Valorem Taxes: In the event that the Restaurant Facility becomes subject to ad valorem taxation on the leasehold interest or the possessory interest attribu- table to the land owned by the City which is subleased for the Restaurant Facility, then these ad valorem taxes shall be paid by the Sublessee and that amount shall be deducted Q2-- 847 a the amount which would otherwi ae payable in accordance with paragraph (A) above. This reduction from rent to the City for ad valorem taxes shall not apply to ad valorem taxes attributable to the building, equipment or fixtures of the Restaurant Facility, which shall be paid by the Sublessee. 11. Rent Deposit. On the date this Sublease is executed, the Sublessee shall pay to the Sublessor the sum of $9,000. as advance payment of the first three months minimum monthly rent due hereunder. This amount shall be promptly returned to Sublessee in the event of failure of any of the conditions subsequent in paragraph 3 above to have occurred. 12. Gross Receipts. The term "gross receipts" as used herein shall include all receipts, whether collected or accrued, derived by the Sublessee from all busi- ness conducted upon or from the Premises, including but not limited to receipts from sale of food, beverages, alcoholic beverages, mer- chandise, or from any source whatsoever; excluding the following items: (a) Retail sales taxes, excise taxes, or related direct taxes on the consumer and collected by Sublessee; (b) Receipts from the sale of waste or scrap materials resulting from Sublessor's operations on the Premises; (c) Receipts from the sale or trade-in value of any furniture, fixtures, or equipment used on the Premises; (d) The cost or value of meals or discounts given to employees of Sublessee; (e) The cost or value of food and beverage used for entertainment and business promition purposes by officers and employees of Sublessee; but in no instance shall this provision be construed to include bad debts. -10- U2 847 (f) The amount of any gratuities given by patrons to employees of Sublessee; (g) Receipts from sale of tobacco, cigarettes and cigars; and (h) Revenue from restaurant parking. 13. Records,' Accounts," 'arid 'S'tatements. Sublessee shall keep on the Premises, or such other place approved by Sublessor and the City, true, accurate, and complete records and accounts of all sales, rentals, and business being transacted upon or from the Premises and shall give Sublessor or Sublessor's representative access during reasonable business hours to examine and audit such records and accounts. Within 30 days after each month of the term hereof Sublessee shall deliver to Sublessor and the City of Miami a written monthly statement of the gross receipts for such month certified by Sublessee to be true, accurate, and complete. Within 30 days after each lease year, Sublessee shall deliver to Sublessor and the City of Miami a written annual statement of the gross receipts for such fiscal year. Said statement shall be certified as true, accurate, and complete by Sublessee. 14. Property Taxes. During the term hereof the Sublessee shall pay all tares of whatever nature lawfully levied upon or assessed against the Premises and improvements, property, sales, rentals or operations thereon, including but not.limited to ad valorem taxes, but subject to the provisions in paragraph 10B. 15. Licenses and Permits.. Sublessee shall pay for all licenses, permits and fees necessary for Sublessee to conduct Sublessee's business on the Premises. -11- 02- 847 Upon termination of this Sublease for any cause whatsoever, all licenses, including liquor license, shall become the property of the Sublessor, its successors or assigns. 16. Manner of Operation. (1) Sublessee shall keep the restaurant and cocktail lounge reasonably stocked with food and beverage and reasonably staffed to serve the patrons thereof, and Sublessee shall maintain a standard of quality of food and beverage at least equal to similar operations in the area at reasonably comparable prices. (2) The facilities to be constructed by the Sublessee shall be open seven days a week, with the exception of Christmas Day and Thanksgiving Day, or such other days that are approved in writing by the City Manager. (3) Minimum Hours of operation shall be as follows: Lunch Monday through Friday 11:00 a.m. to 2:00 p.m. Saturday and Sunday 11:00 a.m. to 3:00 p.m. Dinner Monday through Sunday 5:00 p.m. to 11:00 p.m. Cocktails Hours to comply with City of Miami Code and Ordinances. Any changes in these minimum hours of'operation are subject to the reasonable approval of the City Manager. Nothing herein contained shall be construed to authorize hours contrary to the laws governing such operations. 17. Conformity to Law. Sublessee shall comply with all laws, ordinances, regulations and orders of federal, state, county and municipal authorities pertaining to the Premises and Sublessee's improvements and operations thereon. Sublessee covenants and agrees there will be no discrimination as to race, color, creed or national origin in the use of the Premises. -12- 02- 847 18. Maintenance -and Repairs'. During the term hereof, Sublessee, at Sublessee's expense, shall to the satisfaction of the Sublessor, keep and maintain the Premises and all improvements thereon in good and sanitary order, condition, and repair, consistent with the operation of a first-class quality restaurant in the Miami area. Upon expiration or termination hereof, Sublessee shall surrender and deliver up to Sublessor the Premises and all permanent improvements thereon in good and useable condition, ordinary wear and test excepted. 19. Utilities. Sublessee shall promptly pay for charges for water, gas, electricity, telephone and all other charges for utilities which may be furnished to the Premises during the term hereof including garbage and trash pick-up. 20. Indemnification. Sublessee shall indemnify and hold harmless. Sublessor and City of Miami from damage and liability arising from liens or claims of any kind or nature whatsoever resulting from the use, activities, and operations of Sublessee on or about the Premises. 21. Insurance. At all times during the term hereof, Sublessee shall maintain in full force and effect the following described insurance covering the Premises and Sublessee's improvements and operations thereon: (a) Public Liability Including Products Liability Insurance: Not less than $500,000 for death of or injury to any one person in any one occurance. Not less than $1,000,000 for death of or injury to two or more persons in any one occurance. Not less than $50,000 property damage. (b) Fire 'and Extended Coverage: 90% of replacement value of all improvements, excluding pavement, curbs and foundations. -13- U2- 84'7 Certificates. of such insurance.shall be delivered to Sublessor and the City of Miami prior to the beginning of any construction by Sublessee; such policies shall name Sublessor and the City of Miami as additional insured and shall provide that Sublessor and the City of Miami be given at least 30 days advance written notice of cancellation or material modification. All Certificates of Insurance shall be filed with the City Clerk of the City of Miami, Florida. The insurance provided for herein shall be written by a company authorized to do business in the State of i Florida. The insurance company and the amount of coverage shall be subject to the reasonable approval of the City Manager, and the proceeds payable under Section (b) hereof shall be assignable to the Sublessor and the City of Miami pursuant to Paragraph 22 of this Sublease.. 22. Destruction. In the event of the destruction or damage of the Restaurant Facility by fire, windstorm or any other casualty for which insurance will be payable, the insurance proceeds will be deposited into a joint account of the City, the Sublessor, the Sublessee and the Financing Agency, if any, in a bank in Dade County and shall be available to the Sublessee for the reconstruction or repair as the case may be of the damaged or destroyed building or other improvements. The insurance money shall be paid out of said account by the joint signatures of representatives of the City, the Sublessor, the Sublessee and the Financing Agency only upon certification from time to time by a licensed architect or engineer (who shall supervise the construction and repair) that the amount of each draw is being applied to the payment of the reconstruction or repair and at a reasonable cost therefor. It shall be the duty of the Sublessee, at the time of creating the joint bank account, and from time to time thereafter, until the work of reconstruction and repair has been completed and -14- 0�,- 847 ,aid for to provide the City, the zlessor and the Financing Agercy with adequate evidence of the fact that at all times the undisbursed portion of the fund in said joint bank account is sufficient to pay for the work of reconstruction and repair in its entirety and to procure receipted bills and full and final waivers of lien when the said work shall have been completed and done. The work hereunder, when completed, shall restore the premises substantially to the condition in which they existed before such damage or destruction took place. In the alternative, the Sublessee may, in lieu of a joint bank account, provide the City, the Sublessor and the Financing Agency with a surety bond conditioned upon the recon- struction of said premises and the payment for all work as provided herein. The reconstruction improvements shall be or become the replacement for any security which was lost as a result of the destruction. During any period of time which any improvement or building is rendered untenable for any reason whatsoever, rent paid by the Sublessee shall be adjusted in accord with the provisions of Paragraph 25 of the April 1976 Lease. In the event of destruction or damage to the restaurant facility which renders the property untenable for a period of 90 says or longer, for which insurance proceeds will be payable, Sublessee shall have the option to terminate this Sublease, in which case all insurance proceeds shall be paid into a joint account of the City, the Sublessor and the Financing Agency, if any, and reconstruction may proceed as otherwise set forth above. 23. Default. (a) If Sublessee abandons or vacates the Premises prior to the expiration of the term hereof, or (b) If Sublessee fails to make the rent payments as set forth herein and said payment is not made within 5 days after written notice is given to Sublessee, or 02- 847 (c) If Sublessee _ils to perform in accordance with any of the other terms and conditions herein contained, and such default is not cured within 30 days after written notice is given to Sublessee or if Sublessee within such period has not undertaken all reasonable best efforts to cure such default as soon as reasonably practicable, then Sublessor, at Sublessor's option and without further notice or demand to Sublessee, may enter into possession of the Premises and all improvements thereon and remove all persons therefrom and may either take possession of all furniture, equipment, and other personal property of Sublessee found on the Premises or remove such property or any part of it and store it at Sublessee's expense subject to the rights of any financing agency. Sublessor may then either terminate this Sublease or relet the Premises subject to the approval of the City Manager which approval shall not be unreasonably withheld. In the event Sublessor elects to relet the Premises for such rent and upon such terms as Sublessor may be able to obtain, Sublessee shall continue to pay any differences between the rent obtained by such reletting and the rent due hereunder. -24. Bankruptcy or Insolvency. If Sublessee is adjudicated a bankrupt or makes an assignment for the benefit of creditors or if the leasehold interest is sold under a judgment, Sublessor shall have the right to immediately terminate this Sublease and re-enter the Premises without notice or demand. This provision shall not apply to any sale made under the provisions of paragraph 9. 25. Sublease and Assignment. Sublessee shall not sublease the Premises or any part thereof nor assign this sublease to any other person or firm or amend this sublease without first obtaining Sublessor's and the City of Miami's written approval therefor, which approval shall not be unreasonably withheld. 26. Inspection of Premises. For the purpose of inspection, Sublessor and the City hereby reserve the right to enter upon any part of the Premises at any reasonable time during the period the business is to be open under the terms of this Sublease. C � a' 27. Notices. All notices and rental payments shall be sent to the parties at the following addresses: The City of Miami, Florida P. O. Box 330708 Miami, Florida 33133 Sublessor: Grove Key Marina, Inc. 3385 Pan American Drive Miami, Florida 33133 Sublessee: Grove Restaurant, Ltd. 3387 Pan American Drive Miami, Florida 33133 The Sublessor, City of Miami, and Sublessee may change such addresses at any time upon giving the other party written notification. All notices under this lease must be in writing and shall be deemed to be served when delivered to the address of the addressee. All notices served by mail shall be by certified mail, return receipt requested. Sublessee may designate additional persons for notification of default. 28. Attorneys' Fees. Sublessee agrees to pay the cost of collection and 108 attorneys' fees on any part of said rental that may be collected by suit or by attorney after the same is past due, or in the event that it is necessary to file suit to enforce any of the other provisions of this Sublease, the prevailing party shall be entitled to costs and reasonable attorney's fees including appellate attorney's fees. 29. Waiver. No waiver by Sublessor at any time of any of the terms or conditions of the Sublease shall be deemed a waiver at any time thereafter of the same or any other terms or conditions hereof. 30. Time of Essence. Time shall be of the essence of this Sublease. -17- oo- 847 31. Terms Binding on Successors. All of the terms and conditions of the Sublease shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. 32. 'Signs. No signs whatsoever, including advertising signs, shall be erected or permitted upon the Premises until the plans therefor have first been submitted to the Sublessor and the City Manager of the City, and they shall approve said plans for the design and construction thereof in writing. Sublessee shall be entitled to an easement from the city on Bayshore Drive for the term of this Sublease, in the location and having the dimensions shown on Exhibit B hereto for the purpose of erecting a sign or signs. 33. Adjustment of Teased areas. After the completion of all improvements contemplated under the terms of this Sublease, the Sublessor and the Sublessee may agree to surrender to the City and the City may agree to accept certain portion of the subleased premises for public parking areas and public landscaped areas. 34. Acceptance of April 1976 Lease. Sublessee is aware of all provisions of the April 1976 Lease and covenants not to engage in any conduct or activity or do anything which constitutes a violation of any of the provisions of that Lease. Conduct or activity which violates the provisions of the April 1976 Lease shall automatically constitute a default under the terms of this Sublease. 35. Force Majure. The time -for performance by the parties of any term, condition or covenant of the Addendum and the Sublease relating to construction shall be deemed extended by time lost Niue to delays resulting from acts of God, strikes, unavailability of building materials, civil riots, hurricanes, -18 �� o2-84'7 floods or natural disasters, national or labor restrictions by governmental authority and any other cause not within the control of the parties. IN WITNESS WHEREOF, the parties have executed this Sublease on the date first above written. Corporate Seal GROVE KEY MARINA, INC., Sublessor President ATTEST: '• ecretary GROVE RESTAURANT, LTD., Sublessee �% By: �Qion,cz 1`r. I'! .. General PaMtner By:* A &tng General Partner -19- 02- 8 4'7 0 RESOLUTION ' 77-698 A RESOLUTION APPROVING THE AM-.NDMEAT TO SUBLEASE•. BY AND BETWEEN GI:OVE KEY MARINA, INC. AND GROVE RESTAURANT LIMITED, A COPY OF WHICH IS ATTACHED HERETO AND I -LADE A PART HEREOF. WHEREAS, the City of Miami has previously approved a sublease by and between Grove Key Marina, Inc. and Grove .Restaurant Limited for the purpose of providing a first-class restaurant on certain property presently under lease by Grove Key Marina, Inc. and WHEREAS, Grove Restaurant Limited has requested certain amendments to the sublease so that its rights may be assigned to a top quality, nationally recognized restaurant chain; NOW, THEREFORE, BE IT RESOLVED BY THE CONMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. That the Amendment to Sublease by and between Grove Key Marina, Inc. and Grove Restaurant Limited be, and it is hereby approved. MAURTU A_ FFRRG A Y 0 ATT':ST : 1'T CLEftK PREPARED AND APPROVED BY: MICHEL E. ANDERSON ASSISTANT CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: ;?:;�-7 G-IRG—E V7 KNOX, JR. CITY AT RNEY CITY CO SSIC" MEETING OF SEP 8 1977 .nournal W7 7_=fi.S .IMMM 02-- 847 9 �Qn1[ LEASE AGREEMENT 10 10°� C •�� j ' £ �eeb THIS LEASE AGREEMENT made and entered into thisi-0—day *4 0. of 1976, by and between THE CITY OF MIAMI, a municipal corporation of the State of Florida, as Lessor, hereinafter called the City, and GROVE KEY MARINA, INC., a Florida corporation, as Lessee, hereinafter called the Company. WHEREAS, the Commission of the City of Miami passed and adopted Resolution No. 73-136 awarding the bid for the lease of the waterfront marine facility hereinafter described, to Grove Key Marina, Inc., and authorizing the execution of the Lease Agreement dated March 30, 1973; and WHEREAS, on January 8, 1976, the Company made a presentation before the City Commission requesting an extension of said Lease Agreement between the City and the Company; and WHEREAS, the Company's proposal provides that the Company will, at its sole cost and expense, provide additional rack storage . for a minimum of One Hundred (100) boats; provide for the construction of a dock office immediately adjacent to the waterfront; remove the existing structure on the leased premises known as "Captain Dick's Shack"; provide the service presently offered at "Captain Dick's Shack" in a new structure; and construct a restaurant facility on the leased premises that will enhance the present service to the boating public; and WHEREAS, improvements to the leased premises shall include �� � � amenities available to the non -boating public; and WHEREAS, the Company agrees to make all improvements, adjustments and alterations to be compatible with the Dinner Key Architectural Plan; and , WHEREAS, the City Commission adopted Resolution 76-M7 authorizing and directing the City Manager to execute a lease agreement with the Company for the eight year period beginning July 1, 1976, and ending June 30, 1984. 02-- S 4ry -1- WTI, Tl :FORE, the parties agree and cox nt as follows: 1. PREMISES TO BE LEASED The City does hereby lease to the Company and the Company does hereby hire from the City those certain Hangars and that property known, described and designated as: Hangars "A" and "B" together with a small storage building in the rear of Hangar "A" and small frame building lying easterly of Hangars "A" and "B", and a boat slip located on the northerly side of Clipper Circle, all being located on the following de- scribed property: Bounded on the westerly side by a line 95 feet westerly of,and parallel with, the westerly sides of Hangars "A" and "B"; bounded on the northerly side by a woven wire fence and its westerly and easterly projections thereof; bounded on the easter- ly and southeasterly boundary of the boat slip area at Clipper Circle; bounded on the southwesterly side by yellow traffic stripes, Australian Pine Hedge and the back of the existing sidewalk defining the northeasterly boundary of Pan American Drive and Clipper Circle. The above described property, Hangars and appurtenances lying and being a part of the property known as Dinner Key according to the Plat thereof, as recorded in Plat Book 34 at Page 2 of the Public Records of Dade County, Florida. The City and the Company agree that the City, by action of the City I Commission, may exclude from the boundaries of the premises described above, a thirty foot strip immediately adjacent to the northeast portion of the woven wire fence commencing at the waterfront. A location map and aerial photograph of the area to be leased by the City to the Com- pany is attached hereto and made a part hereof as Exhibit "A" and designated City of Miami Plan No. DK -187. 2. TERM OF LEASE AGREEMENT The term of this Lease Agreement shall be for the eight-year period commencing on the lst day of July, 1976, and terminating on the 30th day of June, 1984. It is mutually agreed by both the City and the Company that the Lease Agreement dated March 30, 1973, between the Company and the City shall remain in effect through June 30, 1976, and that said Agreement shall be of no further force and effect after June 30, 1976. 3. USE OF PROPERTY The Company covenants that it will not, under any circum- stances, discriminate against individuals desiring to use the facilities and that all facilities located on the leased premises shall be made -2- 02- 847 available t tie public, subject to the right the Company to estab- lish and enforce rules and regulations to provide for the orderly operation and security of said facilities. The City and the Company covenant and agree that the Company shall have the exclusive right at Dinner Key to haul and store boats up to and including 28' in length and within that portion of the Dinner Key property, the boundaries of which are set forth in the documents attach- ed hereto and designated as Dinner Key Area DK -187, the property is to be used for the storage of boats and the general repair and servicing of boats up to and inc'.uding twenty-eight (28) feet in length, for the sale of bait, fuel, tackle, marine supplies and hardware and food and beverages, boat launching, and for the* sale of new and used boats up to and including twenty-eight (28) feet during the term of this Lease Agreement. The existing crane and elevator lift will be available to any and all boat owners for the launching and taking out of the water of their boats up to and including twenty-eight (28) feet in length, it being understood that the launching and taking out of the water of boats will be done by the Company, for which a reasonable charge will be made by the Company, said charges to be posted in a conspicuous place and be approved in writing by the City Manager, which approval shall not be unreasonably withheld. The Company shall construct and operate a new facility to provide the services presently offered by "Captain Dick's Shack", which shall include the sale of food and beverages, and shall construct a new marina office adjacent to the waterfront. The Company shall have the right to construct docks for wet storage and for the use of customers of the leased premises. All construction shall be subject to the approval of the City Manager, which approval shall not be unreasonably withheld, and subject also to the Company obtaining the necessary permits The Company _and _the.City shall negotiate for constructing and operating a restaurant facility on the leased premises. The terms and conditions relating to this food and beverage facility shall be deter- _-- . mined by _mutual.Agreement between the Company and the City; and such agreement. shall be, subject to approval by the City Commission 02-- 847 -3- 4. CONSIDERATION As rental for use and occupancy of the leased premises throughout the period of this Lease Agreement, the Company does hereby covenant and agree to pay to the City a sum equal to 10.3 percent of the gross sales, excluding the proposed restaurant facility described in Paragraph 3 of this Lease, but which includes any and all sales made on said premises, including but not limited to, in -and -out service for launching and taking out of the water of boats; all storage; all retail and wholesale sales, provided, however, that the minimum sum to be paid by the Company to the City as rental for use and occupancy of the leased premises shall be Thirty -Four Thousand, Eight Hundred and Fifty ($34,850.00) Dollars for the first year of this Agreement; Fifty Thousand ($50,000.00) for the second year of this Agreement and Sixty Thousand ($60,000.00) for the third year and each year thereafter or the percentage of the gross sales as hereinabove set forth, whichever is greater. The consideration for the proposed restaurant facility shall be the subject of future negotiation and subject to ratification by the City Commission. The Company shall pay.to_the City.either the minimum annual rent as set forth herein or 10.3 per cent of the gross sales for each lease year, whichever amount is greater. The percentage rent due shall be computed monthly and applied each month as a credit against the prepaid minimum annual rent, until such time as the sum of these monthly credits exceeds the minimum annual rent, at which time the amount of percentage rent in excess of the prepaid minimum annual rent shall be due and paid within fifteen (15) days following the end of each lease month, simultaneously with the delivery by the Company to the City of its monthly report of gross sales. 2 S. CASH DEPOSIT S 2 8 d 1 7 On July 1, 1976, the Company shall furnish to the City a Cash Deposit in the amount of Thirty -Four Thousand Eight Hundred Fift-v ($34,850.00) Dollars representing the minimum annual rent for the first year of �s eight-year agreement. On July 1, 1977, the Company will furnish to the City a Cash . - Deposit in the amount of Fifty Thousand ($50,000) Dollars represent- ing the minimum annual rent for the second year of this eight-year Agreement. On July 1, 1978, 1979, 1980, 1981, 1982, and 1983, the Company shall furnish to the City a Cash Deposit in the amount of Sixty Thousand ($60,000.00) Dollars representing the minimum annual rent for the. third, fourth; fifth, sixth, seventh, •and eighth years,. respectively, of this eight-year Agreement. 6. ACCOUNTING On or before the 15th day of each month, beginning with the second month of -this Lease Agreement and continuing during the effective period hereof, and each and every month thereafter, the Company shall file at the office of the Department of Finance of the City, or at such other place or places as may be designated here- after by the City, a statement in certificate form signed by a -- duly authorized officer of the Company, setting forth in such detail as the Director of Finance of the City shall prescribe, the amounts of the gross sales hereinabefore described which were derived by the Company during the immediately preceding month, and simultaneous- ly with the filing of such statement shall pay to the Department of Finance of the City the amount of rental due, subject to the conditions of Paragraph 4. 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 moneys paid or payable to the Company arising out of or in connection with the Company's use of the aforesaid facilities and leased premises whether or not collected, including any and all sales made on said premises, in -and -out services for launching and taking out of the water of boats, all _5_ . ()7-- 847 Y storage, all retail and wholesale sales, provided, however, that any taxes imposed by law which are separate, stated to and paid by the purchaser, and are directly payable to the taxit►g authority by the Company, shall be excluded from gross sales. Additionally, the Company shall submit quarterly reports to the City identifying expenditures on the part of the Company for making improvements to the property, equipment purchases and improvements and expenditures related to improving the facilities, amenities and services of the marina. Such reports shall be discontinued after the total value of the Company's improvements have reached or exceeded $300,000.00. 7. INSURANCE The Company. shall carry insurance for public liability in the amount of not leas than One Hundred Thousand/Three Hundred Thousand ($100,000.00/$300,000.00) Dollars bodily injury and One Hundred Thousand ($100,000) Dollars property damage. Said insurance • shall include products liability -protection, and shall name the City of Miami as an additional party to the said insurance policy. The policy of insurance, as provided herein shall before this Lease Agreement becomes effective be approved by the City Manager in writing, which approval will not be unreasonably withheld. 8. INDEMNIFICATION OF THE CITY BY THE COMPANY 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, loss of life, or damage to property sustained in or about the leased premises, 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 any such claim and the investiga- tion thereof; provided, however, that before the said Company shall become liable for said cost, the Company shall be given notice in writing ( t the same are about to be ince ,i and shall have the option itself to make the necessary investigation and employ counsel of the Company's own 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 as herein- above set forth. 9. LICENSES The Company shall obtain and pay fore all the necessary licenses required for the operation of the business facilities pro- vided for in this Lease Agreement. 10. DAMAGE OR LOSS TO COMPANY'S PROPERTY The Company releases the City from any and all liability, cost or expense for damage or loss to Company's 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 this Lease Agreement, if lost, damaged or destroyed by fire, theft, rain, water or leaking of any pipes or waste water in or about said premises, or from hurricane or any act of God, or any act of negligency of any user of the facilities, or occupants of the premises, or any person whomsoever. 11. UTILITIES C The Company shall be solely responsible and pay for all utilities used by the Company. 12. MAINTENANCE OF DEMISED PREMISES AND JANITORIAL SERVICES The Company covenants and agrees that it shall, at its own cost and expense, maintain the interior and exterior of th- buildings located upon the demised premises in the same condition as originally received, ordinary wear and tear excepted, and shall keep same in good and operable condition excluding repairs due to fire, hurricane or other act of God, and will not suffer or permit any strip or waste of the demised premises without prior written per- mission of the City Manager. 02-.847 U The Company agrees to provide adequate janitorial services. The Company further agrees to maintain the'building and premises in a condition of proper cleanliness, orderliness and state of attractive appearance at all times. If the building and premises 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 premises to be cleaned and the Company shall then be required to reimburse the City within thirty (30) days for said costs and charges. 13. TAXES The City covenants and agrees that the leased premises are to be used and have been used for a governmental, municipal or public purpose or function that could be served by the City, that the operation of the leased facility by the City would be a vapid subject for the allocation of public funds., that the consideration paid by the Company as described in this Lease Agreement is reasonable and adequate and in the best interests of the City and the public, and that the realty and leasehold interest of said leased premises are exempt from ad valorem taxes in accord with the provisions of Florida Statutes 196.199 (2) (a) and Florida Statutes 196.012(5). 1 Ll 02 847 14. ASSIGNMENT AND SUBLETTINd OF PREMISES The Company shall not at any time during the term of this Lease Agreement sublet any part of the premises, or assign this Lease Agreement or any portion or part thereof, except and by virtue of writte tion granted by the Commission of the City of Miami. 15. BOOKS, RECORDS, ACCOUNTS AND STATEMENTS The Company shall keep true, accurate and complete books, records and accounts of all sales, rentals and business being transacted upon the premises. Further, the Company shall, upon demand, make available all books and records, leases, agreements, reports and financial statements in any way pertaining to the demised premises to authorized representatives of the Department of Internal Auditing, or such other authorized representative as the City Manager of the City shall designate, at the demised premises 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 full and complete audit of the books and operations of the Company pertaining to the leased premises and operation of the facilities described in this Lease Agreement. 16. EXAMINATION OF THE PREMISES By THE CITY The Company agrees to permit the City, by its City N.anager's designated personnel; to enter upon the premises at any time for any purpose the City Manager of the City deems necessary or inci- dental to or connected with the performance of City's duties and obligations hereunder or in the exercise of its rights o.. functions. 9 -9- 02- 84'7 17'( ADVERTISING The Company shall not permit any signs or advertising matter to be placed upon the exterior of the buildings or grounds or any of the property included in this Lease Agreement nor Miall the Company in any way alter, modify or change any existing signs or advertising matter found upon the exterior of the buildings or grounds or any of the. property included in this Lease Agreement without first obtainingthe written approval of the City Manager of the City which approval will not be unreasonably withheld. 18. EMERGENCIES The Company shall during any emergency such as, but not limited to a hurricane, flood, fire or any type of disaster, cooperate with the City for the security of these facilities and shall provide access to .the demised premises for the passage of fire equipment and other emergency vehicles as specified by the Fire Department of the City. The Company shall use its best efforts during any of these timesto safeguard the buildings and protect the contents thereof from any loss or damage whatsoever, but nothing herein contained shall be construed to make Company responsible for any loss due to any occurrence as hereinabove stated. 19. PRICES, FEES AND CHARGES The Company agrees that it shall not increase, decrease or otherwise modify existing prices, fees and charges without prior written approval of the City Manager of the City, which approval shall not be unreasonably withheld. This Paragraph is to be con- strued to apply only to boat storage and launching fees. 20. IMPROVEMENTS AND EXAMINATION OF PREMISES The Company covenants and agrees that it has examined the demised premises and is aware of the condition thereof, and accepts the building and premises in their present condition as is but the Citi grants the Company the right to make alterations, improvements and additions to the equipment, buildings or grounds for its own convenieit -10_ 0 2- 847 including the construction of additional dock facilities, a new marina office and a new "Captain Dicks Shack" provided that prior written approval is first obtained from the City Manager of the City before such improvements are undertaken, which approval shall not be unreasonably withheld. All alterations, improvements or additions made by the Company shall be donewat its own cost and expense and shall be in concert with the Dinner Key Archi- tectural Plan. It is further provided that all alterations, improve- ments or additions made to the realty and which become a part thereof, that are made by the Company shall become the property of the City upon their completion, and those items which may be removed without permanent and irreparable injury to the premises shall remain the property of -the Company and may be removed by the Company, providing that upon such removal the Company shall replace the property in the same condition as when received, ordinary wear and tear excepted. It is specifically provided that boat racks placed on the premises by the Company shall remain the property of the Company. 21. SALE OF FOOD AND SANITARY LAWS In the sale of food, the Company shall abide by all Pure Food and Sanitary Laws, and each and every employee, or any person handling the food in behalf of the Company, shall each possess health certificates issued by the proper governmental agency. All such food and beverages shall be of the best grade and highest quality. 02-• 847 22. RIGHT OF CANCELLATION In the event of a default on the part of the Company, the City shall have the right to serve upon the Company a notice calling attention to the particular default or defaults complained of and demanding the termination thereof, and fn the event of the continued existence of said default or defaults for a period. of thirty (30) days (except in the case of non-payment of money, as to which five (5) days shall be applicable) from the time of the giving of such notice by the City, the City shall, by action of the City Commission, have the right to serve a further notice of its election to exercise the option hereby granted to it to terminate this Lease Agreement, and if said default or defaults shall then continue after a period of fifteen (15) days from the giving of said notice of election, the' City shall have the right without further notice to re-enter and take possession of the leased premises and all improvements thereon, with or without judicial process, and to terminate this Lease Agreement. 23. NOTICES Notices from City to Company shall be deemed duly served if mailed by registered or certified mail to Company at the address of the demised premises; and notices from Company to City shall be deemed duly served if mailed by registered or certified mail addressed to the City Manager, City of Miami, Dinner Key, Miami, Florida; or to such other respective persons or addresses as the parties may hereafter designate to each other by notice given in the foregoing manner from time to time. - 12 - 02- 847 24. SURRENDER OF PREMISES Upon termination of this Lease Agreement by lapse of time or otherwise, the Company will promptly and peacefully surrender and deliver possession to the City of all the lands and buildings to which this Lease Agreement is applicable in good V repair, ordinary wear and tear excepted. It is further understood by and *between the parties hereto that all improvements to the realty and made a part thereof by the Company, shall become the property of the City, except as modified by the provisions of this Lease Agreement contained in Paragraph 20. 25. DAMAGE OR DESTRUCTION OF BUILDING DUE TO FIRE OR CASUALTY The City agrees to obtain at its sole cost and expense at all times during the term of this Lease Agreement and any N renewal term hereof, a'standard fire insurance policy on the build- ings and contents of that which is owned by the City of Miami for. all the perils of fire, extended coverage and malicious vandalism. In the event the building or any portion of the premises 1 is damaged or destroyed by fire or other casualty, said damage or ( destruction shall be repaired and restored by the City with due diligence, subject to the right of the City, if the cost or repair and restoration is so substantial as to make such repair or restor- ation economically unfeasible in the opinion of the City Commission, L to terminate this Lease Agreement upon sixty (60) days' notice. Such notice of termination shall be subject to the right of the Company to repair or restore the premises at its own cost and expense upon the Company giving the City written notice of such election within ninety (90) days after the date of the City's notice referred to herein. In the event that either party to this Lease Agreement agrees to repair the damage or destruction as required under the provisions hereof, the work shall be done in a good and workmanlike manner and subject to plans and specifications therefor being first submitted to the City Manager and approved by him in writing and such approval shall not be unreasonably withheld. In the event the premises shall become unfit for occup- ancy because of the occurrence of damage or destruction to the premises as provided in this Paragraph 25, and the Company shall be required to close its entire business on account of such occur- rence, and said closing shall continue for a period in excess of seven (7) days, all rent shall abate while the premises remain closed until the condition shall be corrected to such degree as to permit the Company to commence regular operations on the leased premises. In the event of damage to a portion of the premises whereby the Company may still continue part of its operations, rent shall continue to be paid as described in Paragraph 4, except that the minimum annual rent shall be reduced by the percentage that the gross revenue of the damaged portion represents in relation to the gross revenues of the overall operation, and calculated for the time that the damaged portion is out of operation, based on the records submitted to the City by the Company. The Company agrees not to kectp or permit to be kept or permit to be contained in or about or on the demised premises anything of any character so hazardous as to refider it difficult, impractical or impossible to procure insurance against fire or - 14 - 02- 847 other causes in companies acceptable to the City. In the event insurance cannot be obtained because of these factors, then the Company shall furnish to the City a bond with a surety acceptable to the City fully indemnifying the City for loss, destruction, damage .or injury to the property of said City. 26. ATTORNEYS' FEES In the event that it is deemed necessary for either party to file a law suit 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. 27. BINDING ON SUCCESSORS •11he terms and provisions of this Lease Agreement shall, subject to the provisions of Paragraph 14, be binding and inure to the benefit of the successors and assigns respectively of City and Company. 28. 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 hereto have individually and through their proper corporate officials executed this Lease Agreement the day and year first above written. THE CITY OF MIAMI, a Municipal corporation ATrE of the State of Flor}da. /zzBY �� City Cler' City !tanager ATr • GROVE KEY MARINA, INC., a Florida corp. cretaryinPresident (SEAL) 15 - 02- 847 - APPROVED AS TO FORM AND CORRECTNESS: Assistant City Attorney a�t�0gto�'4.r 11 02- 847 j c ♦ Ad - 16 - 02- 847