HomeMy WebLinkAboutR-97-0774f
J-97-747
10/20/97
RESOLUTION NO. 97- 774
A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING
THE CITY MANAGER TO EXECUTE A LEASE AND
DEVELOPMENT AGREEMENT, IN SUBSTANTIALLY THE
ATTACHED FORM, WITH GROVE HARBOUR MARINA AND
CARIBBEAN MARKETPLACE, LLC. (HEREINAFTER
"LESSEE"), FOR THE PLANNING AND DESIGN,
CONSTRUCTION, LEASING AND MANAGEMENT OF A
COMMERCIAL AND RECREATIONAL MULTIPLE USE
FACILITY INCLUDING A FULL SERVICE BOAT YARD,
MARINA, MARINE RELATED RETAIL USES AND A
PUBLIC MARKET WITH ADAPTIVE REUSE OF TWO
EXISTING HISTORIC HANGAR STRUCTURES ON A
13.55 ACRE SITE (6.95 UPLAND AND 6:6
SUBMERGED ACRES) ON DINNER KEY FOR A PERIOD
OF FORTY (40) YEARS; REQUIRING SAID LESSEE TO
MAKE A TOTAL CAPITAL INVESTMENT IN SAID
PROPERTY OF NOT LESS THAN $5,000,000; PAYING
TO THE CITY OF MIAMI A MINIMUM ANNUAL LEASE
PAYMENT OF NOT LESS THAN $300,000 OR A
PERCENTAGE OF REVENUES AS SPECIFIED HEREIN,
WHICHEVER IS GREATER, INCLUDING A RENT
ESCALATION PROVISION; AND, SUBJECT TO SUCH
ADDITIONAL CONDITIONS AS ARE PROVIDED IN THE
AGREEMENT.
WHEREAS, pursuant to applicable Sections of the City Charter
and Code pertaining to Unified Development Projects, Grove
Harbour Marina and Caribbean. Marketplace, LLC. submitted a
proposal to the City of Miami on August 30, 1996 for the
development and operation of a commercial and recreational use
multiple use facility including a full service boatyard, marina,
marine related retail uses and a public market with adaptive
reuse of two existing historic hangar structures on approximately
13.55 acres of City -owned waterfront property on Dinner Key; and
CITY COPOUSSIION
MEETING OF
0 C T 2 8 1997
Resolution No.
9 7 - 774
WHEREAS, said proposal constituted an offer from said entity
to provide, planning, design, construction, leasing and
management services for improvements to said City property, as
well as a commitment for a total capital investment of not less
than $5,000,000 by Grove Harbour Marina and Caribbean
Marketplace, LLC.; and
WHEREAS, on July 23, 1997, the City Commission adopted
Resolution No.�97-493 which accepted said proposal and authorized
the City Manager to enter into lease negotiations with Grove
Harbour Marine,and Caribbean Marketplace, LLC.; and
WHEREAS, the administration has negotiated a lease and
development agreement which governs detailed arrangements with
Grove Harbour ',Marina and Caribbean Marketplace, LLC, as Lessee,
for the planning and design, construction, leasing, and
management of commercial and recreational multiple use facility;
and
WHEREAS, under the terms of the proposed lease and
development agreement, the City shall receive the greater of a
minimum annual rent of $300,000 or a percentage rent equal to:
a. 10% of gross revenues from the marina;
b.
in
of
gross
revenues from the
boatyard;
C.
5%
of
gross
revenues from
the marina fueling
facility;
d. 5% of gross revenues from the marina services
facility or if leased by Lessee to a subtenant for
,such use, then 5% of the floor rent received by
.Lessee plus 25% of the percentage rent received by
Lessee;
e. 5% of gross revenues from the restaurants;
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9-7 7 7 4
f. 2% of gross revenues received by Lessee from the
marketplace vendors;
g. from marketplace subtenants located outside the
historic hangars:
(i) 10% of the floor rent received by Lessee plus
(ii) 50% of the percentage rent received by Lessee
until the City's portion equals 3% of gross
revenues from the subtenant's operations,
thereafter, 37.5% of the percentage rent
received by Lessee; and
h. from marketplace subtenants located within the
historic hangars
(i) 10% of floor rent received by Lessee plus
(ii) 37.5% of gross revenues received by Lessee;
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 hereby adopted by reference
thereto and incorporated herein. as if fully set forth in this
Section.
Section 2. The City Manager is hereby authorizedY to
execute a lease and development agreement, in substantially the
form attached, with Grove Harbour Marina and Caribbean
Marketplace, LLC. (hereinafter "Lessee"), for the planning and
design, construction, leasing and management of a commercial and
recreational multiple use facility including a full service boat
yard,, marina, marine related retail uses and a public market
with adaptive reuse of two existing historic hangar structures on
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.
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approximately 13.55 acres (6.95 upland and 6.6 submerged acres)
on Dinner Key for a period of forty (40) years.
Section 3. Said Lessee shall make a total capital
investment in said property of not less than $5,000,000.
Section 4. Said lessee shall pay to the City of Miami
rental payments equal to the greater of a minimum annual lease
payment of $300,000 or a percentage of revenues equal to: (a)
10% of gross revenues from the marina; (b) 10% of gross revenues
from the boatyard; (c) 5% of gross revenues from the marine
fueling facility; (d) 5% of gross revenues from marina services
facilities or if leased by Lessee to a subtenant for such use
then, 5% of the floor rent received by Lessee plus 25% of the
percentage rent received by lessee; (e) 5% of gross revenues
from restaurants; (f) 2% of gross revenues received by Lessee
from the marketplace vendors; (g)from marketplace subtenants
located outside of the historic hangars: (i) 10% of the floor
rent received by Lessee plus (ii) 50% of the percentage rent
received by Lessee until the City's portion equals 3% of gross
revenues from subtenants' operations and thereafter, 37.5% of the
percentage rent received by Lessee; and (h) from marketplace
subtenants located within the historic hangars: (i) 10% of
floor rent received by Lessee plus (ii) 37.5% of gross revenues
received by Lessee; and, including a rent escalation provision.
Section 5. Said Lessee shall be subject to such additional
conditions as are provided in the lease and development
agreement.
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97- 774
E
•
Section 6. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 28th
ATTE
WALTER MAN
CITY CLERK
PREPARED AND APPROVED BY:
LINDA K. KEKR,,SON
ASSISTANT CITY AT ORNEY
APPROVED AS TO FORM AND CORRECTNESS:
v of
INN J ES, I I
CITY ATT EY
LKK/pb/1956
day of October
1997.
5 -
97m'�t'
Executive Summary
Lease and Development Agreement
between the
City of Miami, Florida
and
Grove Harbour Marina and Caribbean Marketplace, LLC
Organizational Structure & Ownership Composition:
The Lessee is a Florida Limited Liability Company composed of.
70% Harbour Management Group, Inc., a Florida Corporation
President: Alan Lima
Shareholders Alan Lima
Felix Lima
Antonio Zamora, Jr.
Felix Sabates
Manty Morese Sabates
Carl Straw
30% Southern Cross Marinas, LC, a Florida Limited Liability Company
President: Robert Christoph
Shareholders: Robert Christoph
Carlos Lacasa
Ownership is 83% minority; professional and consultants are 75% minority
Lease Term (Section 3.1):
Term of 40 years
Development Program/Leasehold Improvements (Sections 4.1, 4.2, 4.4-4.7):
Grove Harbour Marina and Caribbean Marketplace development of a multiple
use facility including commercial and recreational uses with adaptive reuse of
two existing historic hangar structures on a 13.55 acre site (6.95 upland acres
and 6.6 submerged acres) to include:
97— 77/11
11
•
A full service marina with at least 122 wet slips (includes 52 slips
that the City is constructing); approximately 140 dry slip storage
spaces for vessels larger than 28 ft. in length; ancillary facilities and
services
A full service boatyard with the capability of handling repair and
servicing some 40 boats at any one time; capability of boat owners
to repair individual boats
A marine retail facility of approximately 10,000 sq.ft.
A marine fueling facility
A public marketplace emphasizing the specialty, unique, ethnic, and
exotic aspects of subtropical and tropical cultures and cuisine
Improvements valued at a minimum investment of $5 million
Construction to commence 30 days after the issuance of a building permit and be
completed within 18 months
A Performance and Payment Bond naming the City as owner or a Letter of
Credit shall be required from Lessee in an amount equal to 100% of the cost of
construction of the improvements plus professional design fees associated with
the project
All alterations and modifications to the exterior of the existing, historic hangars
shall meet the Secretary of the Interior's Standards for Rehabilitation and shall
be approved by the City's Historic and Environmental Preservation Board
(Section 7.4).
Date of Possession (Section 4.3):
Lessee to take possession of property 30 days after the following conditions
have been met:
The property is clear of existing tenancies
The Development Plans have been reviewed and approved by the
City Manager as being in substantial accordance with the
conceptual site plan
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9
The City shall have delivered the environmental permits for the
expansion of the marina beyond the 52 slips that the City is
building
Evidence of construction and/or permanent financing of
improvements has been provided, reviewed and accepted by the
City Manager that such financing has been committed
The property has been remediated and restored to the condition
required by environmental law, pursuant to the Environmental
Liability section the Lease (summarized below) and the City shall
have received an Environmental Condition Acceptance Notice
Amount and Payment of Rent (Section 5.1-5.8):
The greater of:
The Minimum Annual Rent in an amount of:
300,000
or
A Percentage of Revenues equal to:
10% of Gross Revenue from the Marina
10% of Gross Revenue from the Boatyard
5% of Gross Revenue from the Marine Fueling Facility
5% of Gross Revenue from Marina Services Facilities or
if Lessee Leases to a Subtenant for Such Use, then
5% of the Floor Rent Received by Lessee plus
25% of the Percentage Rent Received by Lessee
5% of Gross Revenue from Restaurants
2% of Gross Revenue Received by Lessee from Marketplace
Vendors
From Marketplace Subtenants Located Outside of the Hangars:
10% of the Floor Rent Received by Lessee plus
50% of the Percentage Rent Received by Lessee Until
City's Portion Equals 3% of Gross Revenue From
Subtenant's Operations. Thereafter,
37.5% of Percentage Rent Received by Lessee
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From Marketplace Subtenants Located Within Hangars:
10% of Floor Rent Received by Lessee plus
37.5% of Gross Revenue Received by Lessee
Minimum Annual Rent to be adjusted every 5 years based on an appraisal of fair
market rent, beginning at the end of the Th lease year
Payment of Security Deposit (Section 5.3):
Simultaneously with the execution of the Lease, Lessee to deposit $150,000 with
the City as a Security Deposit
City Participation on Sale or Transfer of Lease (Section 8.9):
In the event. of a sale or transfer of 15% or more of Lessee's membership
interest, City to participate by receipt of 3% of net proceeds received by Lessee
Payment of Taxes (Sections 10.1-10.5):
Lessee to pay all taxes, assessments and other impositions. Should the Lessee
obtain a tax exemption for the property and/or the leasehold improvements, the
Lessee to pay the City an amount equal to what the City's portion of the ad
valorem taxes would be, "City Payment in Lieu of Tax"
Insurance (Sections 11.1-11.7):
At the Lessee's sole cost and expense, all required insurance to be carried and
maintained, as stipulated in the Lease
Environmental Liability (Sections 20.1-20.11):
Costs of environmental inspections and audits to be paid by Lessee
If inspections find the property in a condition acceptable to Lessee, then Lessee
to deliver to City an Environmental Condition Acceptance Notice and no further
action takes place
If inspections reveal an environmental condition that must be remediated, then
Lessee to pay the first $50,000 of the costs, the City to pay the next $50,000 of
the costs, and the parties to share equally in the cost of the next $500,000.
4 97- 774
In the event remediation costs should exceed $600,000, then the parties will
attempt to reach an agreement as to the apportionment, with either party having
the right to cancel the Lease
Additional Benefits to the City (Section 24.1):
Lessee to contribute to the City an amount equal to 50% of the taxes abated for
the historic property for the period Lessee is eligible to receive any such
abatement
Reimbursement of City Expenses (Section 30.1):
Upon execution of the Lease, Lessee to reimburse the City $21,883.54 for direct
costs associated with issuing the RFP for the project
97- 77
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LEASE AND DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF MIAMI, FLORIDA
AND
GROVE HARBOUR MARINA AND
CARIBBEAN MARKETPLACE, LLC
DATED•
9'7- 774
TABLE OF CONTENTS
ARTICLE I
EXHIBITS AND DEFINITIONS
Section 1.1
Exhibits
3
Section 1.2
Defined Terms; Singular, Plural and. Gender
3
ARTICLE II
THE DEMISE
Section 2.1
The Demise
16
Section 2.2
The Leasehold Improvements to Become the Property
16
of Lessor
Section 2.3
Delivery of Title to Lessor
16
ARTICLE III
TERM
Section 3.1
Lease Term
17
ARTICLE IV
POSSESSION OF THE SUBJECT PROPERTY AND
CONSTRUCTION OF LEASEHOLD IMPROVEMENTS
Section 4.1
The Leasehold Improvements
17
Section 4.2
Lessee's Financial Obligations .
17
Section 4.3
Delivery of Possession of Subject Property
18
("Possession Date")
Section 4.4
Additional Security for Lessee's Construction Obligations
21
Section 4.5
Time for Commencement and Completion of Construction
24
of the Leasehold Improvements
Section 4.6
Manner of Construction of Leasehold
Improvements
24
Section 4.7
Consultants
27
ARTICLE V RENT
Section 5.1
Amount of Rent
27
Section 5.2
Rent Adjustment
30
Section 5.3
Security Deposit
31
Section 5.4
Place of Payment
31
Section 5.5
Late Fees
31
Section 5.6
Rent to be Without Deduction
32
Section 5.7
Payment of Rent in Event of Loss or Damage
32
Section 5.8
Rental Deposits from Subtenants
32
Section 5.9
Review of Rent by Lessor's Dept. of Internal Audits &
Reviews/Additional Rent
32
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ARTICLE VI MORTGAGES AND MORTGAGEES
Section 6.1 Leasehold Mortgage 33
Section 6.2 No Waiver of Lessee's Obligations or City's Rights 38
ARTICLE VII ADDITIONAL CONDITIONS OF LEASE AGREEMENT AND
RESTRICTIONS UPON USE OF SUBJECT PROPERTY
Section 7.1 Certain Conditions of Leasing 39
Section 7.2 Restrictive Covenants 39
Section 7.3 Additional Conditions and Restrictions Upon Use of Subject
Property 40
Section 7.4 Historic Preservation Requirements 41
ARTICLE VIII RESTRICTIONS ON TRANSFERS OF LESSEE'S LEASEHOLD
ESTATE
Section 8.1
Representations as to Development of the Project
42
Section 8.2
Definitions
42
Section 8.3
Transfers
43
Section 8.4
Notice of Transfer; Information as to Shareholders
44
Section 8.5
Criteria for Consent for Assignments and/or Purchase. of
Subject Property
45
Section 8.6
Effectuation of Certain Permitted Transfers
46
Section 8.7
Transfers of the City's Interest
46
Section 8.8
Acceptance of Rent from Transferee
47
Section 8.9
Participation on Sale of Lessee's Business and/or Transfer
47
ARTICLE IX EASEMENTS
Section 9.1
Easements
48
Section 9.2
Confirmatory Instruments
49
ARTICLE X
PAYMENT OF IMPOSITIONS
Section 10.1
Payment of Impositions
49
Section 10.2
Payment of Ad Valorem Real Property Taxes
50
Section 10.3
Lessee's Right to Contest Impositions
50
Section 10.4
Payment of Ad Valorem Taxes to the City of Miami
51
Section 10.5
Proof of Payment
51
ARTICLE XI
INSURANCE
Section 11.1
Insurance on the Leasehold Improvements
52
Section 11.2
Other Insurance to be Carried
53
Section 11.3
Delivery of Insurance Policies
55
Section 11.4
Adjustment of Loss
56
Section 11.5
Insurer to be Approved - Premium Receipts
56
Section 11.6
Waiver of Subrogation
57
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ARTICLE XII RECORDS AND AUDITING
Section 12.1 Records of Sales 57
Section 12.2 Audit 58
ARTICLE XIII USE OF THE SUBJECT PROPERTY AND
LEASEHOLD IMPROVEMENTS
Section 13.1
Limited Representations by Lessor
59
Section 13.2
Lessee's Representations
61
Section 13.3
The Leasehold Improvements to be Open to Public
61
Section 13.4
Compliance with Laws
62
Section 13.5
Right to Contest Compliance
62
Section 13.6
Use of the Subject Property
62
Section 13.7
Parking and Circulation
62
ARTICLE XIV REPAIRS, MAINTENANCE AND IMPROVEMENTS
Section 14.1 Repair of the Leasehold Improvements 63
Section 14.2 Alteration of Exterior Improvements 63
Section 14.3 Alteration of City Property 64
ARTICLE XV LESSOR'S RIGHT TO PERFORM LESSEE'S
COVENANTS; REIMBURSEMENT OF LESSOR FOR
AMOUNTS SO EXPENDED
Section 15.1 Performance of Lessee's Covenants to Pay Money 65
Section 15.2 Lessor's Right to Cure Lessee's Default 65
Section 15.3 Reimbursement of Lessor and Lessee 65
ARTICLE XVI DAMAGE OR DESTRUCTION
Section 16.1
Definitions
66
Section 16.2
Lessee's Duty to Repair, Restore or Replace the Leasehold
Improvements After Damage
66
Section 16.3
Performance of Restoration Work
67
Section 16.4
No Right to Terminate
68
Section 16.5
Lessee's Right to Terminate
68
Section 16.6
Payment for Construction of the Restoration Work
68
Section 16.7
Collection of Insurance Proceeds
68
Section 16.8
Unused Insurance Proceeds and Deposits
68
ARTICLE XVII ARBITRATION
Section 17.1 Arbitration 69
Section 17.2 Procedures 70
ARTICLE XVIII MECHANICS LIENS
Section 18.1 Discharge of Mechanics Liens 72
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ARTICLE XIX COVENANT AGAINST WASTE AND INSPECTION
Section 19.1 Waste 74
Section 19.2 Inspection of Subject Property 74
ARTICLE XX
ENVIRONMENTAL LIABILITY
Section 20.1
Definition of Terms
74
Section 20.2
Lessee Inspection
76
Section 20.3
Lessee Environmental Covenant
78
Section 20.4
Lessee's Update
79
Section 20.5
Lessor's Right to Perform r
79
Section 20.6
Remediation
80
Section 20.7
Closure
80
Section 20.8
Lessor's Options
81
Section 20.9
Environmental Liens
81
Section 20.10
Environmental Indemnity
82
Section 20.11
Environmental Assessment at End of Lease Term
83
ARTICLE XXI PUBLIC UTILITY CHARGES
Section 21.1 Lessee to Provide and Pay for Utilities 84
Section 21.2 Lessor Not Liable for Failure of Utilities 85
ARTICLE XXII INDEMNIFICATION
Section 22.1 General Indemnification of Lessor Without Limitation of
Any Other Indemnity Given Hereunder 85
Section 22.2 General Indemnification of Lessee 86
ARTICLE XXIII LIEN FOR RENT AND OTHER CHARGES
Section 23.1 Lien for Rent 87
ARTICLE XXIV ADDITIONAL BENEFITS TO THE CITY OF MIAMI
Section 24.1 Additional Benefits 87
ARTICLE XXV
CONDEMNATION
Section 25.1
Definitions
88
Section 25.2
Entire Subject Property Taken by Condemnation
88
Section 25.3
Partial Taking of Subject Property by Condemnation
89
Section 25.4
Adjustment of Minimum Annual Rent Upon Partial Taking
90
Section 25.5
Deposit of Condemnation Award with Escrow Agent
91
Section 25.6
Rights of Leasehold Mortgagee
91
Section 25.7.
Temporary Taking
91
ARTICLE XXVI DEFAULT PROVISIONS
Section 26.1 Events of Default by Lessee 92
Section 26.2 Remedies in Event of Lessee's Default 93
Section 26.3 Waivers and Surrenders to be in Writing 94
Section 26.4 Rights of Leasehold Mortgagee Upon Lessee's Default 94
Section 26.5 Events of Default by Lessor 94
Section 26.6 Mitigation 95
ARTICLE XXVII INVALIDITY OF PARTICULAR PROVISIONS
Section 27.1 Invalidity of Provisions 95
ARTICLE XXVIII QUIET ENJOYMENT
Section 28.1 Quiet Enjoyment 96
ARTICLE XXIX LESSOR'S TITLE AND LIEN
Section 29.1 Title of Leased Property 96
Section 29.2 Lessee Not to Encumber Lessor's Interest 98
ARTICLE XXX REIMBURSEMENT OF CITY EXPENSES
Section 30.1 Reimbursement of City Expenses 98
ARTICLE XXXI LIMITATION OF LIABILITY
Section 31.1 Limitation of Liability of Lessee 98
ARTICLE XXXII ESTOPPEL CERTIFICATES
Section 32.1 Estoppel Certificates . 99
ARTICLE XXXIII REMEDIES CUMULATIVE
Section 33.1 Remedies Cumulative 100
Section 33.2 Waiver of Remedies Not to be Inferred 100
ARTICLE XXXIV SURRENDER AND HOLDING OVER
Section 34.1 Surrender at End of Term 100
Section 34.2 Rights Upon Holding Over 101
ARTICLE XXXV SUBLEASES
Section 35.1 Subleasing 101
Section 35.2 Nondisturbance and Attornment 101
ARTICLE XXXVI FINANCIAL STATEMENTS
Section 36.1 Financial Statements 102
ARTICLE XXXVII MODIFICATION
Section 37.1 Modification 102
ARTICLE XXXVIII CONVEYANCE BY LESSEE TO LESSOR
Section 38.1 Conveyance by Lessee to Lessor 103
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97- �7a
ARTICLE XXXIX APPLICABLE LAW
Section 39.1 Applicable Law 103
ARTICLE XL NOTICES
Section 40.1 Manner of Mailing Notices 103
Section 40.2 Notice to Leasehold Mortgagees 104
Section 40.3 Sufficiency of Service 105
Section 40.4 When Notice Deemed Given or Received 105
ARTICLE XLI MISCELLANEOUS PROVISIONS
Section 41.1 Captions 105
Section 41.2 Conditions and Covenants 105
Section 41.3 Entire Agreement 105
Section 41.4 Time of Essence as to Covenants of Lease Agreement 106
Section 41.5 Recording, Documentary Stamps 106
ARTICLE XLII MINORITY AND WOMEN'S BUSINESS AGREEMENT
Section 42.1
Minority and Women Participation
106
Section 42.2
tqual Employment Opportunities
107
Section 42.3
Affirmative Action
107
ARTICLE XLIII
COVENANTS TO BIND AND BENEFIT RESPECTIVE
PARTIES AND TO RUN WITH THE SUBJECT PROPERTY
Section 43.1
Covenants to Run with the Subject Property
108
ARTICLE XLIV UNAVOIDABLE DELAY
Section 44.1 Unavoidable Delay(s) 108
Section 44.2 Manner of Notice of Unavoidable Delay(s) and Conditions
With Respect to Performance of Obligations 108
Section 44.3 Payment of Minimum Annual Rent and/or Percentage Rent
in the Event of an Unavoidable Delay 109
ARTICLE XLV
GENERAL PROVISIONS
Section 45.1
Conflict of Interest
109
Section 45.2
Brokerage
110
Section 45.3
Assignability and Binding Effects
110
Section 45.4
Duplicate Originals
110
Section 45.5
No Third Party Beneficiaries
110
Section 45.6
Authority
110
Section 45.7
Waiver of Jury Trial
111
Section 45.8
Attorney's Fees and Expenses
111
Section 45.9
Independent Parties
111
Section 45.10
No Liability for Acts of Other Party
111
Section 45.11
Consents and Approvals
112
Section 45.12
Approval by the Oversight Board
112
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EXHIBIT A - Sketch of Survey of Subject Property
EXHIBIT B - Legal Description of Subject Property
EXHIBIT C - Conceptual Site Plan
EXHIBIT D Environmental Permits
EXHIBIT E - Possession Date Certificate
EXHIBIT F - Florida Department of Environmental Protection Correspondence
EXHIBIT G Florida Department of Community Affairs Binding Letter of
Interpretation of Vested Rights
EXHIBIT H Minority and Women Business Affairs and Procurement Program
Ordinance and First Source Hiring Agreement
(Note: Exhibits NOT attached herein to this Draft)
mew
97- 774
E,
LEASE AND DEVELOPMENT AGREEMENT
This Lease and Development Agreement (the "Lease" or "Lease Agreement") made as
of the 1997, by and between the City of Miami, a municipal corporation of
the State of Florida acting by and through the City Manager (the "City Manager"), and with
the approval of the City Commission of Miami having its offices at 3500 Pan American Drive,
Miami, Florida 33133 ("Lessor" or "City") and Grove Harbour Marina and Caribbean
Marketplace, L.L.C., a Florida Limited Liability Company, composed of Harbour
Management Group, Inc. and Southern Cross Marinas, L.L.C., having its offices at 3191
Coral Way, 3" Floor, Miami, Florida 33145 ("Lessee").
STATEMENT OF BACKGROUND AND PURPOSE
The City is owner, in fee simple, of all that certain land located in the City of Miami,
Dade County, Florida, which is known as and referred to herein as the "Subject Property"
located in the area of Miami known as Dinner Key. For the purpose of this Lease, the Subject
Property consists of the following three (3) parcels containing 13.55 acres, more or less,
shown on the sketch of survey attached as Exhibit A and legally described in Exhibit B:
A. Parcel A Upland containing 6.95 acres, more or less;
B. Parcel A Submerged Land containing 4.32 acres, more or less; and,
C. Parcel B Submerged Land containing 2.28 acres, more or less.
Pursuant to the authority expressly conferred in the City of Miami Charter, and general
law, the City Commission on May 23, 1996, adopted Resolution No. 96-360 which authorized
the publication of a Request for Proposals ("RFP") for the development of a multiple use
facility including commercial and recreational uses, including, a full service boat yard, marina,
marine related retail uses and a public market with adaptive reuse of two existing historic
hangar structures on a 13.55 acre site (6.95 upland acres and 6.6 submerged acres) at the
Subject Property in Dinner Key.
Lessee submitted a proposal on August 30, 1996 (the "Proposal") which was
determined by the City to be responsive to the RFP. The City Commission on July 23, 1997,
97- 774
P--J
adopted Resolution No. 97-493 which accepted the Proposal and authorized the City Manager
to enter into lease negotiations. The Proposal consists of development of a project to be
known as "Grove Harbour Marina and Caribbean Marketplace" (the "Project") which could
from time to time include, but not be limited to, the following amenities, as depicted in
Exhibit C, (the "Conceptual Site Plan") and which are to be more particularly described in the
"Development Plans":
1. A full service marina with at least 122 wet slips for vessels; approximately 140
dry slip storage spaces for vessels larger than 28 feet in length and ancillary
facilities and services;
2. A full service boatyard with the capability of handling repair and servicing
some 40 vessels at any one time;
3. A marine retail facility of approximately 10,000 square feet;
4. A marine fueling facility providing gasoline and diesel fuel for vessels;
5. A public marketplace of approximately 40,000 square feet, emphasizing the
specialty, unique, ethnic and exotic aspects of subtropical and tropical cultures
and cuisine; and
6. Parking to service the Project in sufficient quantity to comply with City of
Miami zoning requirements.
In addition to the above described amenities or so much thereof as shall be permitted,
the Lessee shall be required to design, construct and maintain specific site improvements as
amenities for public use; specifically, a bay walk along the sea wall edge at Biscayne Bay,
and a twenty (20) foot wide landscape buffer between the western edge of the Subject Property
and South Bayshore Drive which incorporates a bike path (the "Public Amenities"). The
Lessee shall be required to design and construct the bay walk in conformance with the design
guidelines and standards of the Dinner Key Marina Bay Walk.
It is the mutual desire of the Parties that the Subject Property be leased and demised by
the Lessor to the Lessee for the purposes set forth in the Proposal subject to and upon the
terms and conditions contained herein
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•
The Statement of Background and Purpose is a description of the intent of the Parties,
on the Lease Date, with regard to development and construction of the Project and is not
intended to limit the rights or the obligations of the Parties, during the Lease Term, except to
the extent that it contains definitions and terms which are used elsewhere in this Lease. The
descriptions of the amenities contained in this Statement of Background and Purpose are for
illustrative purposes only, and where in conflict, the Construction Documents, as based on the
Development Plans prepared by the Lessee and approved by the City Manager, shall control.
Certain terms defined or capitalized in the Statement of Background and Purpose or below are
more particularly defined in Section 1.2, to which reference is hereby made.
In consideration of the foregoing and of the rent, covenants, and agreements hereinafter
set forth and the sum of ten dollars, other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties do hereby covenant and agree as
follows:
A WVTOT V T
EXHIBITS AND DEFINITIONS
Section 1.1. Exhibits. Attached hereto and forming a part of this Lease Agreement
are the following Exhibits:
Exhibit A --
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Sketch of Survey of Subject Property
Legal Description of Subject Property
Conceptual Site Plan
Environmental Permits
Possession Date Certificate
Florida Department of Environmental Protection Correspondence
Florida Department .of Community Affairs Binding Letter of
Interpretation of Vested Rights
Minority and Women Business Affairs and Procurement Program
Ordinance and First Source Hiring Agreement
Section 1.2. Defined Terms; Singular, Plural And Gender.
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Any word contained in the text of this Lease Agreement shall be read as the singular or
the plural, and as the masculine, feminine or neuter gender as may be applicable in the
particular context. More specifically, however, for the purposes of this Lease Agreement the
following words shall have the meanings attributed to them in the following subsections:
1.2.1. "Acceptable Operator" means an entity or entities whose member(s) possess the
business experience, good reputation, financial resources, and adequate personnel necessary
for the proper performance of all of Lessee's obligations under this Lease in a manner
consistent with the quality, reputation and economic viability of the Project, including (without
limitation) the obligation of Rent payable by Lessee under this Lease, with proven or
demonstrated experience in the successful operation and management of a marina and retail
development.
1.2.2. "Boatyard" means a full -service boatyard facility offering a broad range of
boating and marine services and activities that shall include boat hauling and launching,
storage, repair and maintenance services for vessels greater than twenty-eight (28) feet in
length. Repair and maintenance services shall include but not be limited to electrical,
mechanical, plumbing, planking, rigging, carpentry, upholstery, hull, propulsion and engine
repairs. The Boatyard shall provide an opportunity, subject to appropriate rules and
regulations adopted by Lessee, for individual boat owners to perform repairs, general
maintenance and to make improvements to private vessels independent of such services as may
be provided by an operator or tenant of the Boatyard.
1.2.3. "Business Days" means Monday through Friday excluding legal holidays.
1.2.4. "Certificate of Appropriateness" means the certificate issued. by the City of
Miami and/or the Historic and Environmental Preservation Board of the City of Miami as
defined within Sec. 23 of the Code of the City of Miami for any new construction, alteration,
relocation or demolition within a designated historic site.
1.2.5. "Certificate of Occupancy" means the certificate issued by the City of Miami
Building and Zoning Department as defined within the South Florida Building Code Section
307.1 and in accordance with City of Miami Ordinance No. 61.45.
1.2.6. "City" or the "Lessor" has the meaning ascribed to it in the opening paragraph
of this Lease Agreement.
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1.2.7. "City Manager" means the administrative head of the City's government who
has. been appointed by the City Commission of the City of Miami in accordance with the
provisions of Section 15 of the Charter of the City of Miami, as amended, and who is
authorized to execute this Lease and other documents including notices required hereunder.
1.2.8. "City Property" means the Dinner Key Boatyard —Marina Docks, the Public
Amenities and the Historic Property.
1.2.9. "Construction Documents" means the final working drawings and specifications
including the following information: definitive architectural and landscape architectural
drawings; definitive foundation. and structural drawings; _definitive electrical and mechanical
drawings; and plans for all lighting facilities affecting the exterior appearance of the Leasehold
Improvements.
1.2.10. "Consumer Price Index" means the monthly indices for the applicable
month published by the Bureau of Labor Statistics of the United States Department of Labor as
"The Consumer Price Index for All Items, All Urban Consumers, Miami -Ft. Lauderdale,
(Base Year 1982-84 =100)" .
1.2.11. "Conceptual Site Plan" means the site plan set forth in Exhibit "C", and
as amended from time to time.
1.2.12. "Control" (including correlated meanings such as the terms controlling,
controlled by, and under common control with) as used with respect to the Lessee, its
successors or assigns, means the possession or the power to direct the management decisions
and policies of Lessee, through the ownership of voting securities, beneficial interests or by
contract.
1.2.13. "Development Plans" has the meaning ascribed to it in Section 4.6.
1.2.14. "Dinner Key Boatyard —Marina Docks" means the improvements to be
carried out by the City specifically described in City Department of Public Works Project No.
H-1088 for the Subject Property, which include: (a) reconfiguration and replacement of the
existing bulkhead with a new sea wall, including the removal of the existing peninsula; (b)
construction of approximately 52 wet boat slips, including piers, fendering and mooring pile
systems and utilities (electric, water and fire lines); (c) permitting for an additional seventy
(70) wet slips (estimated), for a total of 122 wet slips; (d) minimal grading, paving and
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drainage improvements to the upland area immediately adjacent to the new sea wall; and (e)
construction of an electrical/storage building.
1.2.15. "Dinner Key Marina Bay Walk" means the bay walk contiguous to the
City marina behind and adjacent to Miami City Hall located at 3500 Pan American Drive,
Miami, Florida.
1.2.16. "Environmental Condition Acceptance Notice" means written
notification from Lessee to Lessor stating that Lessee completed its investigation and
evaluation of the environmental conditions on the Subject Property, and that Lessee elects to
proceed with the development of the Project, subject to any conditions specified in such
notification.
1.2.17. "Environmental Permits" means the permits obtained by the City of
Miami for the reconstruction and expansion of the Dinner Key Boatyard -Marina Docks and
which outline all mitigation required in conjunction with reconstruction and expansion of the
docking facility. Environmental Permits, attached hereto as Exhibit D, include:
(i) U.S. Department of the Army Permit No. 199600956 (IP-BP);
(ii) Florida Department of Environmental Protection -Environmental
Resource Permit No. 132846159; and
(iii) Metropolitan Dade County Department of Environmental Resources
Management -Agreement for Class I Coastal Construction Permit No. CC96-031.
1.2.18. "Event of Lessee's Default" has the meaning ascribed to it in Section
26.1.
1.2.19. "Event of Lessor's Default" has the meaning ascribed to it in Section
PON
1.2.20. "Fair Market Rent" means the rent that a similar property being used as
set forth herein, with such additional uses as may be located on the Subject Property, should
bring in a competitive and open market under all conditions requisite to a fair lease, the Lessor
and Lessee each acting prudently, knowledgeably, and assuming the rent is not affected by
undue stimulus. Implicit in this definition is consummation of a lease as of a specified date
under conditions whereby:
(i) Lessor and Lessee are typically motivated;
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(ii) Both parties are well-informed or well-advised and acting in what they
consider their own best interests;
(iii) A reasonable time is allowed for exposure in the open market;
(iv) Payment is made in terms of cash in U.S. dollars or in terms of financial
arrangements comparable thereto; and,
(v) The rent represents the normal consideration for property leased
unaffected by special or creative financing or concessions granted by anyone associated with
the lease.
1.2.21. "Gross Revenue" means all revenue actually received by the Lessee and
to the extent provided below, by Lessee's Subtenants derived directly from business operations
located on or initiated at the Subject Property:
A. Gross Revenue shall include:
1. Revenue derived from advertising and sponsorships conducted on the
Subject Property;
2. Any parking revenue generated on the Subject Property;
3. Revenue from sales, rentals, and services, such as pay telephones, vending
machines, and entertainment devices both for cash and on credit, rendered
in or upon the Subject Property;
4. With respect to boatyard service, maintenance and repairs, all revenue paid
to any outside service and repair facility under contract with Lessee,
Lessee's Subtenant or which operates as Lessee's agent or Subtenant's
agent, for any sale, rental, or service initiated at or from the Subject
Property;
5. All revenue received by Lessee or Lessee's Subtenants in connection with
the use of the Subject Property, any facility thereon, or any portion thereof
for any period of time, including without limitation, for:
(i) special events, including, but not limited to, banquets, concerts,
tournaments, receptions and parties held on or initiated from the Subject
Property; and
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(ii) motion picture, commercial filming purposes or commercial
photographic purposes held on or initiated from the Subject Property.
6. Rent paid to Lessee by Subtenants of Marine Service Facility and
Marketplace vendors.
7. All revenue received by Lessee or its Subtenants from the operation of the
Marina, the Boatyard and the Marine Fueling Facility.
B. Gross Revenue shall not include the following items:
1. Exchanges of merchandise between different locations of Lessee or a
controlled party or Subtenants where such exchanges are made solely for the
operation of Lessee's business and not for the purpose of consummating a
sale which has been made at, in, or on the Subject Property;
2. Returns to shippers and manufacturers for credit;
3. Sale' of trade fixtures, eT- operating equipment or other assets after use
thereof in the conduct of Lessee's business on the Subject Property;
4. All sums and credits received in settlement of claims for loss or damage to
merchandise and all credit company charges;
5. Sales made from the Subject Property of goods or items which, are to be
shipped directly to the purchaser from another location that are wholesale,
or not retail;
6. Amount of any sales or excise tax levied upon retail sales, rentals and
services rendered and payable over to the appropriate governmental
authority;
7. Rent paid to Lessee by any Subtenants under a Percentage Rent Sublease or
other arrangement where the City is collecting Rent based on a percentage
of Subtenant's Gross Revenues as provided in Sections 5.1(vi), (vii) and
(viii);
8. Funds collected with regard to the Subject Property which are not actually
related to the day to day business of the Subject Property, including, but not
limited to, the financing of the Lessee's interest in the Subject Property,
sale or assignment of the Leasehold Estate, collection of insurance
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proceeds, collection of Eminent Domain proceeds, monies that are
collected for events that are done for charities wherein the amounts
collected are paid to the charitable sponsor or not -for -profit organizations,
and such;
9. All gratuities paid to employees.
10. Amounts received by Lessee as reimbursement of expenses and cost sharing
(for example, reimbursement of taxes, insurance, or utility bills);
11. Any grants, subsidies, rebates, credits or other similar benefits received by
Lessee or Lessee's Subtenants, from any federal, state, regional, or local
body, agency, authority, department or organization.
12. Interest earned on Lessee's deposit accounts, earnings or profits on Lessee's
investments, interest income from loans or credit facilities granted by
Lessee, and similar passive or investment income of Lessee related to
Lessee's liquid assets, investments, or loans/credit facilities granted by
Lessee.
C. Gross Revenue shall be reduced by the following items:
1. Amounts of any refunds or allowances made on merchandise claimed to be
defective or unsatisfactory, or discounts to customers; provided said
amounts had been previously included as part of Gross Revenue, and that if
such refunds, allowances or discounts are in the form of credits to
customers, such credits shall be included in Gross Revenue when used.
Gross Revenues will also be reduced by uncollected or uncollectible credit
accounts (those accounts which are more than Ninety (90) days delinquent)
provided said amounts are included in. Gross Revenue upon payment, if
made.
2. Commercially reasonable amounts, credits, concessions or enticements
given by Lessee to procure Subtenants for the Leasehold Improvements.
1.2.22. "Historic Property" means Parcel A Upland of the Subject Property,
including two (2) existing historic hangars, which is a portion of the Pan American Seaplane
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Base and Terminal Building Historic Site designated in accordance with Section 23 of the
Code of the City of Miami and listed on the National Register of Historic Places.
1.2.23. "Impositions" means all governmental assessments, including
assessments imposed by the City, franchise fees, excises, license and permit fees, levies,
charges and taxes, including ad valorem real estate taxes on the land under the Subject
Property and the Leasehold Improvements, general and special, ordinary and extraordinary
properly levied against the Subject Property and the Leasehold Improvements and/or the
Lessee's Leasehold Estate which constitute a lien on the Subject Property or the Leasehold
Improvements.
1.2.24. "Lease Date" means the date this Lease Agreement is last signed by the
City Manager on behalf of the Lessor and Lessee; after approval by the City of Miami
Commission and the Emergency Financial Oversight Board.
1.2.25. "Lease Term" or "Term" has the meaning ascribed to it in Section 3.1.
1.2.26. "Lease Year" shall mean any period of time consisting of Twelve (12)
consecutive calendar months commencing on the Possession Date and each anniversary
thereafter during the Lease Term .
1.2.27. "Leasehold Improvements" means all the buildings, structures and
improvements, including the City Property and the improvements described in the
Development Plans and Construction Documents, and any improvement constructed thereafter
from time to time during the Lease Term that are hereafter located upon the Subject Property;
as well as any apparatus and equipment incorporated into the Leasehold Improvements at any
time, including all fittings, appliances, machinery, garage equipment, heating equipment,
lighting equipment, cooling equipment, air conditioning and ventilating equipment, wiring,
controls, communications equipment, plumbing, switchboards, antennae, elevators, escalators,
floor coverings, refrigerating equipment, hot water heating and all other appliances and
equipment; excepting only in each case articles of Personal Property and trade fixtures owned
by Lessee, or others which can be removed without defacing or materially injuring the
Leasehold Improvements.
1.2.28. "Leasehold Mortgage" means a mortgage, deed of trust, or other
instrument which constitutes, or any security interest given in connection therewith, which
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together constitute an encumbrance or lien upon the Lessee's Leasehold Estate or any part of
it, or any related personal property, and Lessee's interest in the Leasehold Improvements
(including Lessee's interest as sublessor in any present or future subleases and any other
interest of the Lessee in the Leasehold Improvements and Personal Property) as security for
any loan, including the Lessee's construction loan provided that a Leasehold Mortgage shall
not encumber the City's fee simple interest in the City Property.
1.2.29. "Leasehold Mortgagee" means any holder of the Leasehold Mortgage or
note or notes secured by it.
1.2.30. "Legal Requirements" or "Applicable Law" means applicable Federal,
State and local laws, Federal Standards for Rehabilitation, Florida Statutes, codes, City and
Dade County ordinances, orders, judgments, decrees and injunctions from courts having
jurisdiction over the Subject Property, rules, and requirements of Federal, State and local
boards and agencies with jurisdiction over the Subject Property, now existing or hereafter
enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be lawfully
and without discrimination applicable to the Subject Property or any part of it.
1.2.31. "Lessee" has the meaning ascribed to it in the opening paragraph of this
Lease Agreement as well as Lessee's successors ,and/or assigns.
1.2.32. "Lessee's Leasehold Estate" means all of Lessee's right, title and
interest as Lessee in, to and under this Lease, the Subject Property and the Leasehold
Improvements.
1.2.33. "Lessee Utility Easement" has the meaning ascribed to it 'in Subsection
9.1(b)(i).
1.2.34. "Lessee Vehicular Access Easement" has the meaning ascribed to it in
Subsection 9.1(b)(ii).
1.2.35. "Marina or Full Service Marina" means a marina containing both wet
and dry slips designed, constructed and operated n a manner equivalent to the Dinner Key
Boat Yard —Marina Docks in methods, materials and finishes in accordance with all conditions
set forth in the Environmental Permits and that provides necessities and amenities to its
patrons. Such necessities and amenities include, but are not limited to:
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(a) Adequate and separately metered boat slips for such things as electricity,
telephone, water, and cable television.
(b) A fendering system, a large enough turning basin, beam length, depth,
clean water, garbage collection, recycling bins, sewage (in compliance with Dade County
Department of Environmental Resource Management), dock boxes, showers, electric cart for
groceries and luggage, washers and dryers, well lit lockers and restrooms.
(c) Seven day a week operations with a friendly and courteous staff,
providing security, a front desk for mail and messages, a security lighting system, fire lanes,
fire extinguishers, daily facility janitorial services, marine store providing basic marine
supply and materials, and appealing landscaping.
1.2.36. "Marina Services Facilities" means establishments and operations
located within the Subject Property offering goods and services for lease or sale including but
not limited to food and beverage concessions; general marine provisioning and sundry items;
marine electronics and equipment; yacht brokerage; boat, fishing and dive charters; dinner and
entertainment cruises and charters; water taxi services; boating, marine and fishing related
goods, equipment and accessories; miscellaneous vending; and such other marine or marina
related products, services and facilities as Lessee may deem beneficial.
1.2.37. "Marine Fueling Facility" means the facility at which marine fuel (diesel
and/or gasoline), together with water dependent complimentary fuel products, is dispensed and
sold, to be designed, constructed and operated in accordance will all conditions set forth in the
Environmental Permits.
1.2.38 "Marketplace" means a public, urban or community market offering a
broad range of food and non-food items and products for sale in a unique retail setting with
emphasis on permanent operation by individual, independent entrepreneurs, on a regular,
seven-day per week basis. The Marketplace shall emphasize specialty, unique, ethnic, and
exotic aspects of subtropical and tropical cultures and cuisine. Food items may include, but
are not limited to, prepared and bulk foods, produce, dairy products, baked goods, meats,
poultry, seafood, spices, coffees/teas, alcoholic beverages, specialty foods/groceries and
prepared foods. Non-food items may include, but are not limited to, flowers/plants, non -mass
produced hand -made crafts, clothing and collectable items.
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1.2.39 "Marketplace Vendors" shall mean subtenants, licensees or
concessionaires in the Marketplace that operate their businesses from counters, stalls, carts and
similar type facilities, and which pay a flat fee rent to Lessee per diem, per week or monthly
basis for terms less than one year.
1.2.40. "Minimum Annual Rent" means that minimum rent to be paid as set
forth in Section 5.1 (a).
1.2.41. "Pan American Seaplane Base and Terminal Building Historic Site"
means the site designated by the City on November 16, 1993, as depicted in the designation
report on file at the City Department of Planning & Development.
1.2.42. "Parties" means the Lessor and Lessee.
1.2.43. "Percentage Rent" means that percentage of Gross Revenue set forth in
Section 5.1(b).
1.2.44. "Percentage Rent Sublease" means a Sublease which provides for
payment of a flat rate on a square footage basis ("Floor Rent") plus a percentage of Gross
Revenues when said Subtenant's Gross Revenues reach a benchmark as set forth in the
Sublease.
1.2.45. "Permitted Delay(s)" means a delay in the construction and completion
of the Dinner Key Boatyard —Marina Docks beyond twelve (12) months from the Lease Date,
then the times for the performance of the covenants, provisions and agreement of this Lease
which are expressly subject to this term, including but not limited to the obligations of the
Lessee with respect to, possession, and beginning and/or completion of construction of the
Leasehold Improvements, shall be extended for the period of the delay(s).
1.2.46. "Person" means any natural person, trust, firm, partnership,
corporation, joint venture, association, or any other legal or business entity investment
enterprise.
1.2.47. "Personal Property" means all property owned and used by the Lessee or
any Subtenant or Transferee of the Lessee, in connection with and located upon the Subject
Property, subject to rights of any secured party or title retention agreement of a third party.
1.2.48. "Possession Date" means the date described in Section 4.3.
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1.2.49. "Prime Interest Rate" means that rate of interest charged by First Union
National Bank. of Florida (or if this bank is not in existence or making loans at the Prime
Interest Rate, then the Prime Interest Rate shall be that rate so charged by the bank located in
Dade County having the largest net worth at the applicable time) from time to time on Ninety
(90) day commercial loans to its most creditworthy corporate borrowers.
1.2.50. "Project" means the Leasehold Improvements, constructed in accordance
with the approved Development Plans and Construction Documents, described in the Statement
of Background and Purpose.
1.2.51. "Public Amenities" means a bay walk along the sea wall edge of
Biscayne Bay designed in conformance with the Dinner Key Marina Bay Walk and a twenty
(20) foot wide landscape buffer between the western edge of the Subject Property and South
Bayshore Drive which incorporates a bike path.
1.2.52. "Rent" shall be as set forth in Section 5.1 and shall include any
additional rent occurring or which may occur pursuant to the provisions of this Lease.
1.2.53. "Restoration Work" has the meaning ascribed to it in Section 16.2.
1.2.54. "Schematic Design Documents" consist of drawings and other
documents illustrating the scale and relationship of Leasehold Improvement components.
1.2.55. "Section", "subsection", "paragraph", "subparagraph", "clause", or
"subclause" followed by a number or letter means the section, subsection, paragraph,
subparagraph, clause or subclause of this Lease Agreement so designated.
1.2.56. "Special Exception Permit" has the meaning ascribed to it in Article 16
of Ordinance 11000, as amended, the Zoning Ordinance of the City of Miami, Florida.
1.2.57. "Subject Property" means the real estate owned by the Lessor and
comprising all of the land to be demised under the terms of this Lease Agreement, as reflected
on the sketch of survey attached hereto as Exhibit A, and the legal description attached hereto
as Exhibit B, together with all appurtenant rights belonging and all buildings and
improvements now or hereafter located on or under such land including, without limitation, all
of the Leasehold Improvements.
1.2.58. "Sublease" means any lease (excluding this Lease), sublease, license,
concession or other agreement by which Lessee or any person or other entity claiming under
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Lessee (including, without limitation, a subtenant or sublicensee) demises, leases, subleases,
licenses or sublicenses to or permits the use or occupancy by another person or entity of any
part of the Subject Property and Leasehold Improvements (excluding a sublease considered a
Transfer under the provisions of Article VIII).
1.2.59. "Subtenant" means any person, firm, corporation or other legal entity
using or occupying or entitled to use or occupy any part of the Subject Property or the
Leasehold Improvements under a Sublease.
1.2.60. "Total Construction Costs" means all costs and monies expended by or
on behalf of Lessee from equity, debt or any other source, including but not limited to all
payments made to architects, engineers, contractors, subcontractors and . suppliers for design,
construction, tenant improvements subject to City Manager approval, including required
infrastructure including but not limited to all labor, materials, supplies, furnishings, fixtures,
machinery and equipment, and also all soft costs including, but not necessarily limited to,
taxes and interest during construction, the cost of required bonds, construction insurance,
building, impact, mitigation and concurrency fees, financing costs, fees and expenses,
development costs, survey, title insurance charges and premiums, permits and licenses,
accounting and legal fees relating to the Project, leasing and construction, utilities, tap -in
connection fees, topographical and environmental soil tests and any clean-up costs fees and
expenses.
1.2.61. "Transfer" has the meaning ascribed to it in Section 8.2.
1.2.62. "Unavoidable Delay(s)" means a delay resulting from damage or
destruction by fire or other casualty, whether similar or dissimilar; acts of the federal, state,
county and/or city governments, including acts pertaining to strikes, embargoes, shortages of
material or labor; labor troubles or labor disputes; force majeure, unusually adverse weather
conditions; or other like or unlike events or conditions beyond the control of the Parties,
including any court actions, and injunctions by third parties.
1.2.63, "Work" means all work performed or to be performed by the Lessee,
its Subtenants and others under agreement with Lessee in the construction, improvement,
renovation, upgrading or installation of any infrastructure, buildings, structures, betterments,
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improvements, or any additions, modifications, replacements, alterations, restorations or
repairs to the Subject Property or the Leasehold Improvements.
ARTTVIN TT
THE DEMISE
Section 2.1. The Demise. The Lessor, for and in consideration of the foregoing
premises and of the covenants and agreements hereinafter contained to be performed and
observed by the parties, and in consideration of ten dollars and other good and valuable
consideration paid by Lessee to the City, the receipt and adequacy of which are hereby
acknowledged, does hereby lease, let and demise to the Lessee, and the Lessee hereby leases
from the City the Subject Property, subject to the following terms and conditions, to have and
to hold the said lands, tenements and hereditaments, with all of the rights, privileges and
appurtenances, thereurlto belonging or pertaining unto Lessee for the Lease Term herein
specified, unless this Lease shall be sooner terminated in a manner hereinafter provided.
Section 2.2. The Leasehold Improvements to Become the Property of Lessor. So
long as this Lease remains in force, the Leasehold Improvements constructed on the Subject
Property, with the exception of the City Property, shall be owned in fee simple by the Lessee
but on termination of this Lease, whether by passage of time or otherwise, the Leasehold
Improvements shall become the sole property of the Lessor in fee simple, and free and clear of
all encumbrances subject to only: (i) the lien of taxes assessed but not yet due and payable (for
which the Lessee shall remain obligated to pay to the extent that they are allocable to the
period prior to the termination of this Lease); (ii) any installments of certified special
assessment liens for public improvements not yet due and payable prior to the termination of
this Lease (for which the Lessee shall remain obligated to pay to the extent that they are
allocable to the period prior to the termination of this Lease); (iii) the Lessor's rights and
remedies in the event of the termination of this Lease because of Lessee's default, and (iv) the
rights of any Leasehold Mortgagee under this Lease.
Section 2.3. Delivery of Title to Lessor. Upon the expiration of the Lease Term, or
any earlier termination of this Lease, Lessee agrees to execute, acknowledge and deliver to
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Lessor a proper instrument in writing, releasing and quitclaiming to Lessor all right, title, and
interest of Lessee in and to the Leasehold Improvements.
ARTICLE III
TERM
Section 3.1. Lease Term. This Lease shall be for a maximum of one (1) term of
Forty (40) years plus additional extensions created by Unavoidable Delays and/or Permitted
Delay commencing on the Possession Date and ending on the date that is Forty (40) years
thereafter, unless terminated at an earlier date pursuant to the terms of this Lease. Within
Thirty (30) days after the Possession Date, the City Manager and the Lessee, upon request of
either party, shall execute one or more memoranda in such form as will enable them to be
recorded among the Public Records of Dade County, setting forth the beginning and
termination dates of the Lease Term.
ARTICLE IV
POSSESSION OF THE SUBJECT PROPERTY AND CONSTRUCTION OF
LEASEHOLD IMPROVEMENTS
For purposes of this Section, the Lessee's obligations as set forth hereinafter shall
pertain to the Leasehold Improvements with the exception of the Dinner Key Boatyard —
Marina Docks as defined in Subsection 1.2.14.
Section 4.1. The Leasehold Improvements. The Parties agree that the development
of the Project described in the Statement of Background and Purpose, shall be developed by
Lessee, at the sole cost and expense of the Lessee, and pursuant to proper permits and
substantially in the manner provided by this Section, and in accordance with the provisions of
this Lease, and Applicable Law, shall design and construct on the Subject Property the
Leasehold Improvements. The Lessee shall design and construct the Leasehold Improvements
which are to be more particularly described in the Development Plans and Construction
Documents.
Section 4.2. Lessee's Financial Obligations. It shall be the responsibility of the
Lessee to secure sufficient funds to design, construct and lease the Leasehold Improvements
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in such a manner as to meet its obligations under this Lease. Lessee hereby covenants that
Lessee shall initially invest or cause to be invested no less than Five Million Dollars
($5,000,000) for the Total Construction Costs of the Leasehold Improvements.
Section 4.3. Delivery of Possession of Subject Property (the "Possession Date")
(a) The City shall deliver possession of Subject Property to Lessee, and Lessee,
subject to the provisions of Article XXIX, Unavoidable Delay and Permitted Delay, shall take
possession thereof within- thirty (30) days after the following conditions precedent
("Conditions Precedent") to the Possession Date have been complied with by the respective
Parties :
(i) Possession. The City shall deliver possession of the Subject Property
to Lessee free and clear of all leases, claims of possession, licenses and parties in possession,
including but not limited to all of the existing tenancies, some of which are in eviction
proceedings in circuit or county courts.
(ii) Environmental Remediation. The Lessor and Lessee take all steps
necessary to cause the Subject Property to be remediated and restored to the condition required
by Environmental Laws as further set forth in Article XX of this Lease Agreement in order
that Lessee may improve and use the Subject Property for the purposes intended herein.
(iii) The City shall make available to Lessee, on or before Sixty (60) days
after the Lease Date, for examination, a current, accurate and complete abstract of title for the
Subject Property in order for the Lessee to determine and confirm whether the City's fee
simple title to the Subject Property is good, marketable and insurable. Lessee shall be
responsible for making its own examination at its own expense, as to the state of the City's
title to the Subject Property. If, as a part of its examination of the City's title to the Subject
Property the Lessee raises any title objection(s) to be cured, the City shall exercise reasonable
efforts to cure same as quickly as possible. In the event the. objection(s) are not cured to the
satisfaction of the Lessee, (a) Lessee may accept this Lease with the existing title condition;
(b) Lessee may take necessary corrective title actions; or (c) at its option, the Lessee may
terminate the Lease if the Lessee determines that the City's title is defective, without either
party being liable to the other therefor. If the Lessee elects to take corrective title actions, the
City shall cooperate with and assist the Lessee in curing any title objections.
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(iv) The Lessor shall have obtained and delivered to the Lessee all
Environmental Permits required for the construction of the Dinner Key Boatyard -Marina
Docks, including, but not limited to any permits or approvals required from the U.S.
Department of the Army, the Florida Department of Environmental Protection and the
Metropolitan Dade County Department of Environmental Resources Management.
(v) Delivery of Survey. The City shall provide a current and accurate
survey of the Subject Property to be made and delivered to the Lessee by a surveyor licensed
in the State of Florida. The survey shall be certified to the Lessee, and if requested by Lessee,
to Lessee's title insurer and Leasehold Mortgagee. The survey must comply with the
minimum technical standards for land surveyors set forth in Section 472.027 Florida Statutes.
This survey shall show and certify the elevations and actual square footage of the Subject
Property.
(vi) Moratoria. There being no moratoria as to any service required for
the Project that would impede or delay development of the Project as contemplated by this
Lease.
(vii) Availability of Utilities. All utility services necessary for the use of
the Subject Property and for the construction of the Leasehold Improvements are or shall be
available at the boundaries of the Subject Property, including water supply, storm and sanitary
sewer facilities, electric and telephone facilities. The Lessor makes no representation as to the
service capacities beyond the availability of existing and current levels of service.
(viii) The City Manager shall have approved the Development Plans, as
provided in Section 4°.6, which approval shall not be unreasonably withheld or delayed; and
(ix) The City Manager shall have received and approved, which approval
shall not be unreasonably withheld or delayed, the commitment or commitments for the
construction and/or permanent financing of the Leasehold Improvements to be constructed at
the Subject Property, or such evidence as may be reasonably satisfactory to the City Manager
that such financing has been committed or is available; and
(x) The City has received the Environmental Condition Acceptance Notice
from the Lessee.
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•
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The date that the City delivers possession of the Subject Property to Lessee in
accordance with this Article, by notice in writing, is herein called the "Possession Date".
Lessor and Lessee _agree to execute a Possession Date Certificate in the form of the certificate
attached hereto as Exhibit E. In the event the Possession Date does not fall on the first day of
the month, the Possession Date shall be adjusted to be the first day of the following month.
(b) Lessee and the City shall use good faith efforts to satisfy all of the
aforesaid conditions precedent to Lessee's taking possession of the Subject Property. It is
recognized by the Parties hereto that it is not the intention of either party to encumber the
Subject Property with this Lease for an indefinite period of time during the period of
satisfaction of the aforesaid conditions precedent and that therefore:
(i) Any City review and/or approval required above shall be
promptly undertaken by the City, but in no event shall the period of time available to the City
for such review and/or approval exceed thirty (30) days from receipt by the City of such
request. In the event that such review by the City requires additional or remedial action by the
Lessee, the Lessee shall promptly undertake such additional or remedial action, but in no event
shall the period of time available to the Lessee for such additional or remedial action exceed
thirty (30) days from receipt of the City's request; provided, however, that if such additional
or remedial action cannot reasonably be cured within such thirty (30) day period, that Lessee
shall be provided such additional time as is necessary so long as Lessee shall be diligently and
continuously endeavoring to complete such additional or remedial action; and
(ii) The Lessee or the Lessor may terminate this Lease if all of the
aforesaid Conditions Precedent are not satisfied on or before Six (6) months from the Lease
Date, except that as to the Possession condition, Lessor shall have Twelve (12) months from
the Lease Date in which to satisfy 4.3(a)(i), set forth above, prior to either Lessee or Lessor
being able to terminate this Lease pursuant hereto; provided, further that, either Party may
reasonably extend the time for performance of any of the Conditions Precedent and Lessee
may postpone taking possession of the Subject Property in the event of:
(aa) Any Unavoidable Delay and/or Permitted Delay, including, .
without limitation, a moratorium, an Unavoidable Delay or Permitted Delay in connection
with the Lessee's investigation and evaluation of the Subject Property, and/or any remediation
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to be performed by Lessor or Lessee pursuant to Article XX hereof, if required, of the
environmental condition of the Subject Property; and/or
(bb) Delay in connection with review and approval by the City
Commission and/or City Manager; and/or
(cc) Delay in curing a title defect.
(c) Notwithstanding anything herein to the contrary, prior to the Possession
Date, the Lessee shall not be required to perform any of its obligations hereunder except as
provided for in Article XX with respect to Lessee's entry upon the Subject Property for
purposes of conducting or causing the investigation and evaluation of the environmental
conditions at the Subject Property.
(d) Subject to Lessor's cooperation, the Lessee hereby undertakes and
assumes sole and exclusive responsibility to cause and obtain the permitting of all the
Leasehold Improvements, except the Dinner Key Boatyard —Marina Docks, in accordance with
the Construction Documents. Lessor agrees to cooperate fully and promptly in the permitting
process including, but not limited to, joining in any permit applications required by the U.S.
Department of the Army, the Florida Department of Environmental Protection, the South
Florida Water Management District, Dade County Department of Environmental Resources
Management and Miami --Dade Water and Sewer Department for Lessee's construction of wet
slips, dredging and filling in Biscayne Bay and any water and sewer line infrastructure
improvements required for the Subject Property, the construction plats, opinion of titles, gap
affidavits and other applicable applications or affidavits if required to do so.
Section 4.4. Additional Security For Lessee's Construction Obligations. In
connection with the commencement and completion of construction of the Leasehold
Improvements, the Lessee further agrees with the Lessor as follows:
(a) Prior to the commencement of construction of the Leasehold
Improvements, the Lessee, at Lessee's sole cost and expense, shall obtain a Payment and
Performance Bond- or Letter of Credit.
(b) The Payment and Performance Bond shall be issued by a company
authorized to do business in the State of Florida in an amount equal to One Hundred Percent
(100%) of the cost of the Leasehold Improvements plus professional design fees related to the
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preparation of the Construction Documents, for the respective phase of Leasehold
Improvements, naming the City as the owner/obligee and the Lessee as the principal
guaranteeing the payment and performance of Lessee's Leasehold construction obligations
hereunder, free of mechanic's or .other liens. The conditions of the payment and performance
bond shall be to insure that the Lessee will:
(i) promptly make payment to all claimants, as defined in §255.05
Florida Statutes, 1995, supplying the Lessee with labor, materials, or supplies, used directly
or indirectly by the Lessee in the prosecution of the Work provided for in this Lease
Agreement; and
(ii) pay the Lessor all losses, damages, expenses, costs, and
attorneys fees, including appellate proceedings, that the Lessor rightfully sustains because of a
default by the Lessee pursuant to claims made under Florida Statute 255.05; and
(iii) perform the guarantee of all Work and materials furnished under
this Lease Agreement relating to the Leasehold Improvements.
The payment and performance bond shall be reduced in amount as the Work
proceeds as certified by Lessee's architect, and may be terminated at such time as the
Leasehold 'Improvements are completed as evidenced by the issuance of a Certificate of
Occupancy; and reasonably satisfactory evidence is provided by the Lessee to the City
Manager that the requirements of the payment and performance bond have been satisfactorily
concluded. The form of the payment and performance bond shall be approved by the City
Manager, which approval shall not be unreasonably withheld.
(c) Should Lessee wish to utilize a Letter of Credit instead of a Payment and
Performance Bond, then the Letter of Credit shall be in an amount equal to One Hundred
(100%) percent of the cost of the Leasehold Improvements plus. professional design fees
related to the preparation of the Construction Documents, for the Leasehold Improvements and
issued by a state or federal banking institution, or, if not by a state or federal banking
institution, then by an institution approved by the Finance Director of the Lessor, which
approval shall not be unreasonably withheld or delayed. The Letter of Credit shall insure the
faithful performance by the Lessee of all of its construction obligations, under the same terms
and conditions as the Payment and Performance Bond, as set forth in Section 4.4 (b) for the
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Leasehold Improvements. The Letter of Credit shall be renewed annually and shall be
maintained at the City's Department of Finance during the entire term of construction and until
a Certificate of Occupancy is issued for the Leasehold Improvements. The letter of credit shall
be reduced in amount as the Work proceeds as certified by Lessee's architect, and may be
terminated at such time as the Leasehold Improvements are completed as evidenced by the
issuance of a Certificate of Occupancy for the Leasehold Improvements; and reasonably
satisfactory evidence is provided by the Lessee to the City Manager that the requirements of
the letter of credit have been satisfactorily concluded. The form of the Letter of Credit shall
be approved by the City Manager, which approval shall not be unreasonably withheld or
delayed.
(d) During the course of construction, the Lessee shall provide the Lessor (if
Lessor requires by notice in writing), once each month, a Certificate of Lessee's architect (or
copy thereof) certifying that those portions of the Leasehold Improvements completed are in
substantial accordance with the permitted Construction Documents;
(e) During the . course, of construction, Lessor and any Leasehold
Mortgagee, their architects, engineers, agents and employees may enter upon at reasonable
times, and inspect the Subject Property, and the construction of the Leasehold Improvements
for the purpose of seeing that the Work conforms with the agreements contained herein.
Lessee shall maintain copies of all Construction Documents and specifications relating to the
construction and the construction site, and Lessor and Leasehold Mortgagee may examine the
same at all reasonable times; and if required by them, Lessee shall furnish them with copies
thereof. If during construction, Lessor, or its architect or engineer shall reasonably determine
that the construction is not proceeding in accordance with the provisions of this Lease or with
the Construction Documents and specifications, and shall give written notice to Lessee
specifying in detail the particular deficiency or defect, Lessee shall thereupon take such steps
as are necessary to correct such deficiency or omission; provided, however, if Lessee shall
contend that Lessor is acting unreasonably in making any such determination, the dispute shall
be submitted to arbitration pursuant to Article XVII hereof unless Lessor and Lessee agree in
writing within fifteen (15) days from the arising of the dispute to be bound by the decision of
the Lessee's architect and submit the dispute to him for determination.
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Section 4.5. Time for Commencement and Completion of Construction of the
Leasehold Improvements. The Lessee agrees for itself, its permitted successors and assigns,
and every permitted successor in interest that, subject to Unavoidable Delay and/or Permitted
Delay, the Lessee, within days Thirty (30) days from the date of issuance of a building
permit to Lessee, Lessee shall promptly commence the construction of the Leasehold
Improvements. On or before the Possession Date, Lessee. shall provide a timetable for
completion of the Leasehold Improvements which shall include a scheduled completion date
which, subject to Unavoidable Delay and/or Permitted Delay, must be no later than Eighteen
(18) months from the date of issuance of a building permit. In the event of Unavoidable
Delay and/or. Permitted Delay, the date for commencement and/or the scheduled completion
date shall be correspondingly extended by the same number of days involved in the period of
Unavoidable Delay and/or Permitted Delay.
Section 4.6. Manner of Construction of Leasehold Improvements. The City
acknowledges that the Lessee may be submitting Development Plans (which may be amended
from time to time) in stages for approval for the Leasehold Improvements. The City shall not
be required to issue permits or other formal governmental approvals to Lessee until the City
Manager (subject to the provisions of this Lease Agreement) has approved the Development
Plans. The Parties hereto agree that the City Manager shall not unreasonably withhold or
delay its approval. Additionally, upon being contacted by the Lessee for assistance, the
Lessor agrees to expeditiously cooperate with and assist Lessee in obtaining all required
development permits and approvals.
(a) Development Plans. Development Plans shall be subject to the
submission of an application for a Special Exception Permit and a Certificate of
Appropriateness. The City agrees to use due diligence in processing the applications of the
Special Exception Permit and a Certificate of Appropriateness. For the purpose of this Lease,
"Development Plans" (commonly referred to as Schematic Design Documents) shall consist of
all application materials required pursuant to a complete Special Exception Permit application
and a complete Certificate of Appropriateness application.
(b) Construction Documents. Not later than Ninety (90) days after the City
Commission's approval of the Special Exception Permit application, Lessee shall submit to the
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City Manager Two (2) sets of Construction Documents. Upon receipt thereof, the City
Manager shall review the same and shall promptly (but in any event within Fifteen (15)
Business Days after such receipt), give Lessee notice of its approval or disapproval, setting
forth in detail its reasons for any disapproval. The City Manager's right to disapprove the
Construction Documents submitted shall be limited to matters depicted in the Construction
Documents which do not conform substantially to the Development Plans approved by the
Special Exception Permit or previously approved Construction Documents for other stages; or .
are new elements not presented in the approved Development Plans, or are violations of this
Lease or of governmental ordinances, codes, plans or regulations. If no response from the
City is delivered to Lessee within Fifteen (15) Business Days after the submission of such
Construction Documents, or any resubmission thereof as hereinafter provided, they shall be
deemed approved; except that no violations of applicable laws, ordinances, codes, regulations
or of this Lease shall be deemed waived thereby. In the event of a disapproval, Lessee shall,
subject to Unavoidable Delay, within Thirty (30) Business Days after the date Lessee received
the notice of such disapproval, resubmit the Construction Documents for that stage to the City
Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to
review and approval by the City Manager, in accordance with the procedure hereinabove
provided for in original submission, until the same shall be approved by the City Manager.
The City and Lessee shall in good faith attempt to resolve any disputes regarding the
Construction Documents. In the event the Parties fail to resolve such dispute, the dispute shall
be submitted to arbitration pursuant to Article XVII.
(c) Development Plans and Construction Documents and all Work by Lessee
with respect to the Subject Property and the construction of the Leasehold Improvements
thereon shall be performed in accordance with this Lease, the Miami Charter and Code, the
South Florida Building Code and with the provisions of all other applicable federal, state and
local laws and ordinances.
(d) No approval by the City Commission or the City Manager of any
Development Plans or Construction Documents, respectively, pursuant to this Section shall
relieve Lessee of any obligation it may have at law to file such Construction Documents with
any department of the City or any other governmental authority having jurisdiction over the
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issues; or to obtain any building or other permit or approval required by law. Lessee
acknowledges that any approval given by the City Commission or the City Manager pursuant
to this Section shall not constitute an opinion or agreement by the City that the plans are
structurally sufficient or in compliance with any laws, codes or other applicable regulations.
(e) After the Possession Date and during the construction of the Leasehold
Improvements and throughout the Term, the Lessee shall permit appropriate representatives
(such as building, zoning and fire inspectors) of the Lessor access to the Subject Property at all
reasonable times, as the Lessor deems necessary for proper purposes of this Lease Agreement
including, but not limited to, inspection of all work being performed in connection with the
construction of the Leasehold Improvements. Any such access and inspections shall not
interfere with or delay the Work being performed by or on behalf of the. Lessee. Additionally,
upon being contacted by the Lessee, the Lessor agrees to expeditiously cooperate with and
assist Lessee in obtaining such inspections.
(f) In respect to the Lessee's use and occupancy of the Subject Property
(and the subsurface of it) during the progress and period of construction, or by anyone acting
under the Lessee, except for the negligence of the Lessor, its officers, agents, and employees,
contractors or subcontractors or invitees, the Lessee covenants to indemnify, defend and hold
harmless the Lessor and its agents and employees from and against all claims and demands
whatsoever for loss or damage, including property damage, personal injury and wrongful
death which occurs at the Subject Property arising out of construction and development of the
Subject Property including the Leasehold Improvements, which the Lessee is responsible for
and which results from the actions or omissions of Lessee or any of its agents, contractors,
servants, employees, licensees or invitees.
(g) Within Thirty (30) days after all of the foundations for the Leasehold
Improvements have been installed, the Lessee shall furnish the Lessor with a survey by a
registered land surveyor showing the foundations (including any caissons) to be within the
perimeter lines of the Subject Property. Within Ninety (90) days after completion of all of the
Leasehold Improvements, the Lessee shall furnish the Lessor with a final survey showing all
improvements constructed by the Lessee, for itself, to be within the perimeter lines of the
Subject Property.
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Section 4.7. Consultants. Lessee shall retain the services of an individual or firm
fully knowledgeable of the laws and technical aspects governing the preservation, restoration
and rehabilitation of historic properties. The services of this consultant shall be retained
during the development and construction of the initial Leasehold Improvements.
Lessee shall further retain the services of an individual or firm, to be approved by the
City Manager, for purposes of establishing the Marketplace including, but not limited to, its
design, construction, training, leasing, marketing, management and operation. The services
of the Marketplace consultant shall continue for not less than one year after the opening of the
Marketplace to the public.
ARTI T.F. V
RENT
Section 5.1 Amount of Rent. The Lessee covenants that it shall pay to the Lessor as
Rent for the Subject Property the greater of the Minimum Annual Rent or Percentage Rent:
(a) Minimum Annual Rent. Commencing on the Possession Date and
continuing throughout the Lease Term, Minimum Annual Rent for each Lease Year during the
Lease Term, payable as set forth in Subsection (c) below and, adjusted in accordance with
Section 5.2 of this Article, and Section 5.3, if applicable, shall be Three Hundred Thousand
Dollars ($300,000).
(b) Percentage Rent. The Percentage Rent shall be an amount equal to a
cumulative total of the following percentages of Gross Revenue:
(i) 10% of the Gross Revenue from the Marina;
(ii) 10 % of the Gross Revenue from the Boatyard;.
(iii) 5 % of Gross Revenue from Marina Service Facilities or in the event of a
Sublease of such use, 5 % of the Floor Rent received by Lessee plus 25 %
of the percentage rent received by the Lessee under the terms of the
Sublease;
(iv) 5 % of the Gross Revenue from the Marine Fueling Facility;
(v) 2 % of the Gross Revenue received by Lessee from the Marketplace
Vendors;
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(vi) 5 % of Gross Revenue of Restaurant Subtenants. For purposes of this
subsection, "Restaurant" shall mean an establishment that has a unified
system of food preparation, food delivery, seating and service for its
patrons, where the Restaurant operator controls all aspects of food
preparation and delivery, service and seating, whether it be a white
tablecloth restaurant or an informal raw bar or paper plat/paper cups
type of restaurant. The definition of Restaurant does not include a food
concession in the Marketplace where the operator is selling food or
drinks across a counter without any control as to where its patrons or
customers sit or consume its products.
(vii) 10 % of the Floor Rent, plus 37.5 % of the Subtenant's Percentage Rent
payable to Lessee pursuant to a Percentage Rent Sublease, other than a
Restaurant and other than a Marketplace Subtenant located outside the
historic hangars. For purposes hereof, Floor Rent shall mean rent paid -
by any Subtenant to Lessee as part of a Percentage Rent Sublease prior
to Subtenant's gross revenues and receipts reaching a benchmark as
provided pursuant to such Sublease. Upon Subtenant's gross revenues
and receipts exceeding such benchmark, Subtenant shall pay Lessee
Subtenant's Percentage Rent (defined below) pursuant to the terms of
such Sublease. Subtenant's Percentage Rent shall mean percentage rent
paid to Lessee by a Subtenant when subtenant's revenues and receipts
have exceeded a breakpoint established between Lessee and Subtenant
pursuant to a Percentage Rent Sublease.
(viii) With respect to Marketplace Subtenants located outside the historic
hangars, Lessor shall receive 10 % of Floor Rent, plus 50 % of the
Subtenant's Percentage Rent payable to Lessee until the City achieves
Percentage Rent equal to 3 % of the Subtenant's Gross Revenues; once
the City has achieved a 3 % Percentage Rent, the City shall receive
37.5 % of the Subtenant's Percentage Rent payable to Lessee pursuant to
a Percentage Rent Sublease.
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(c) The parties agree that the provisions of Subsection 5.l(vi), (vii) and
(viii) relating to Percentage Rent Subleases shall not apply to the Marina, Boatyard, Marina
Services Facilities, the Marina Fueling Facility, or to Marketplace Vendors. The provisions
of Subsection 5.1(vi), (vii) and (viii) are applicable to Percentage Rent Subleases of restaurant
or grocery facilities such as, by way of illustration but not by way of limitation, a Dean and
Delucca type of establishment, a Gardener's Market, a sit down restaurant, a Norman's
Market or the like; the provisions of Subsection 5.1(vi) are also applicable to uses of the
Subject Property pursuant to Percentage Rent Subleases, where those uses were not
contemplated in Lessee's proposal to the City.
(d) Manner of Payment of Percentage Rent or Minimum Annual Rent.
Commencing on the Possession Date, the Lessee shall pay Lessor one twelfth of the
Minimum Annual Rent on the first day of each month and every month thereafter during the
Lease Term.
Thereafter, commencing with the first day of the third (3`d) month and on the first day
of each month and every month thereafter during the Lease Term (and after the termination or
expiration thereof for such additional periods as may be necessary to comply with this
Article), Lessee shall provide Lessor a statement of its Gross Revenues signed by an officer of
Lessee and Subtenant, respectively, for the month commencing approximately sixty (60) days
prior and shall pay to Lessor the greater of: (i) one/twelfth of the Minimum Annual Rent then
in effect pursuant to Section 5.1(a) hereinabove,. or (ii) the applicable percentage rent as
provided in Section 5..l(b) of the Gross Revenue for the month commencing approximately
Sixty (60) days prior.
For example, on the first day of the third (3`d) month, Lessee shall pay to Lessor one -
twelfth of the Minimum Annual Rent or the applicable percentage of Gross Revenue due of the
first (15`) month.
Commencing with the second Lease Year and each and every Lease Year thereafter
during the Lease Term (and after the termination or expiration thereof for such additional
periods as may be necessary to comply with this Article), within sixty (60) days after the end
of every Lease Year, Lessee shall deliver to Lessor a statement of the Gross Revenue for the
preceding Lease Year signed by a Certified Public Accountant along with the additional
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i
amount of Percentage Rent, if any,
Lease Year.
which is due from Lessee to Lessor for that preceding
In the event that the statement of Gross Revenue for the preceding Lease Year
indicates that the estimated Percentage Rent paid by the Lessee for the preceding Lease Year is
greater than the actual Percentage Rent due the Lessor, then, Lessor and Lessee shall reconcile
the estimated Percentage; Rent paid and the actual Percentage Rent due in the form of a rent
credit to Lessee for the next subsequent monthly installments of Rent due hereunder.
Section 5.2 Rent Adjustment. At the end of the seventh (7') Lease Year and
every five years thereafter during the Lease Term, Lessor shall cause to be made an appraisal
of the Fair Market Rent of the Subject Property according to the provisions set forth below,
for the purpose of adjusting the Minimum Annual Rent as provided in Section 5.1(a) herein.
Lessee shall reimburse Lessor fifty (50) percent of the cost of said appraisal within fifteen
(15) days of receipt of an invoice from Lessor indicating such cost. The appraiser shall (i) be
a member of the American Institute of Real Estate Appraisers, and (ii) shall have not less than
Ten (10) years experience in managing and appraising real estate.
The Fair Market !Rent determined by the appraiser shall be binding and conclusive on
the Lessor and the Lessee. The appraiser shall have the right to determine the procedure to be
adopted in arriving at the Fair Market Rent, and may, in his discretion, dispense with formal
i
hearings, it being agreed'that his task will be solely that of appraisal.
If prior to the commencement of the next Lease Year in which the Minimum Annual
Rent adjustment was to j take effect the Fair Market Rent has not been determined for any
reason, the Lessee shall continue to pay Rent as calculated pursuant to Section 5.1 utilizing the
Minimum Annual Rent in effect for the year prior to the rental adjustment. When the Fair
Market Rent has been determined, the Minimum Annual Rent will be increased as provided
retroactively to the commencement of the Lease Year in which the rental adjustment was to
take effect, and the Rent' payments shall be recalculated in accordance with Section- 5.1. If the
adjusted Minimum Annual Rent results in Rent due to Lessor, Lessee shall pay to Lessor with
the next installment of Rent, the amount of Rent due, if any. In no event shall any rental
adjustment called for in this paragraph result in a Minimum Annual Rent which is less than
three hundred thousand dollars ($300,000).
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Section 5.3. Security Deposit. In addition to the Rent as described in this Article,
and simultaneously with the execution of this Lease Agreement, the Lessee shall deposit with
the Lessor One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) as a security
deposit (the Security Deposit). The Security Deposit shall be placed by the Lessor in an
interest bearing account with all interest earned thereon being credited to Lessee.
Commencing with the rent adjustment as set forth in Section 5.2, the Security Deposit
shall also be adjusted as follows:
At the time of 'increase of the Minimum Annual Rent payable to take effect on the
eighth anniversary of this Lease and each five (5) . year anniversary thereafter, Lessee shall
deposit with Lessor such additional amount as may be necessary to increase the Security
Deposit so that the Security Deposit will be an amount equal to fifty percent (50%) of the
Minimum Annual Rent in effect after the adjustment.
The Security Deposit shall be considered as security for the payment of all of Lessees
obligations,' covariant§-:6nd'iO6 fiients.under this Lease. Within Thirty (30) days after either
this Lease expires or upon the earlier termination of this Lease Agreement (whichever
applies), the Lessor shall (provided that the Lessee is not in material default under the terms of
this Lease) return the Security Deposit to the Lessee less any portion that the Lessor shall have
used to make good any,defauli of Lessee. In the event of any such default by the Lessee,
Lessor shall have the right, but shall not be obligated, to apply .all or any portion of the
Security Deposit to cure the default, in which event the Lessee shall be obligated to deposit
with the Lessor the amount necessary to restore the Security Deposit to the amount in effect
prior to the deduction.
Section 5.4. Place Of Payment. The Lessee shall pay all Rent to Lessor in lawful
money of the United States of America at a place the Lessor shall from time to time designate
by notice to the Lessee,; and- in the absence of such designation at the office of the Lessor at
City Hall.
Section 5.5 Late Fees. In the event Lessee fails to pay Rent within fifteen (15)
Lessee shall a a late fee equal to five percent 5 % of the unpaid
days after it becomes due, pay q p ( ) p
amounts inclusive of any accrued late fees for each thirty (30) day period or fraction thereof in
which payment remains, unpaid.
i
Acceptance of such late fee by Lessor shall, in no event,
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constitute a waiver by Lessor of any default by Lessee under this Lease Agreement. The late
fee shall be deemed Rent and the rights to require it shall be in addition to all of Lessor's
rights and remedies hereunder or at law and shall not be construed as liquidated damages or as
limiting Lessor's remedies in any manner.
Section 5.6 Rent To Be Without Deduction. This Lease Agreement shall be deemed
and construed to be a triple net lease, and the Lessor shall receive all Rent, and all other
payments to be made by the Lessee free from any charges, assessments, Impositions, expenses
or deductions of any nature with the exception of those items set forth or permitted within this
Lease Agreement. The Lessor shall, not be called upon to make any expenditure for the
maintenance, repair or preservation of the Leasehold Improvements. With the exception of
any setoff allowable under the terms of this Lease, in no event shall there be any deduction of
any nature from Rent due the Lessor and no defense, setoff shall be made against Rent in any
proceeding for the collection of Rent.
Section 5.7. Payment of Rent In Event of Loss or Damage. In the event of loss or
damage to all or any part of the Leasehold Improvements or interruption of the Lessee's
business, the Rent shall not be abated but the payment thereof shall be subject to Unavoidable
Delay as provided in Section 44.2 hereof.
Section 5.8. Rental Deposits from Subtenants. All rental deposits received by the
Lessee from its Subtenants shall be handled by Lessee as required by Applicable Laws.
Section 5.9. Review of Rent by Lessor's Department of Internal Audits and
Reviews/Additional Rent: In the event Lessor's Department of Internal Audits and Reviews
cannot attest that:
a. any, of the Lessee's cash receipts, revenue or any other type of
transactions denoted oni, the Lessee's financial records should be exempt from Lessor's
compensation and/or
b. cannot identify the exact nature of the transactions due to lack of
supporting documentation or other types of audit evidence, the Lessee shall then provided such
needed documentation or other audit evidence determined by the Lessor's Department of
Internal Audits and Reviews, within fifteen (15) calendar days of the request. If the
documentation is not provided within said fifteen (15) day period, then such amounts shall be
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subject to Lessor's Rent plus applicable State Use Tax. The additional rent shall be computed
by multiplying the amounts in question by the applicable rental percentage.
The applicable rental percentage shall be determined as follows:
a. If the amount(s) in dispute can be determined as to type or category of
revenue, then the percentage used in the rental computation shall be the applicable rental
percentage denoted for the same type or category of revenue as set forth in this Lease
Agreement.
b. If the type or category of revenue cannot be determined, then the
applicable rental percentage shall, be the greatest percentage denoted in this Lease Agreement
that is used to compute Lessor's Rent.
However, in the event the exact amount of unexplained revenue, cash receipts or
discrepancy cannot be identified, then an estimate determined by the Lessor's Department of
Internal Audits and Reviews shall be used for the additional rental computation.
ARTICLE VI
MORTGAGES AND MORTGAGEES
Section 6.1. Leasehold Mortgage.
(a) Notwithstanding the provisions set forth in Article VIII hereof regarding any
Transfers (as defined in Section 8.2), but subject to the provisions of this Article VI, (provided
that Lessor has not notified Lessee in writing that an Event of Lessee Default has occurred
which remains uncured); Lessee shall have the right during the Lease Term, to encumber the
Lessee's Leasehold Estate by Leasehold Mortgage, for the sole purpose of securing the
financing of the Total Construction Costs of the Leasehold Improvements and/or for the long-
term financing or refinancing of any such Leasehold Improvements, subject to the approval of
the City Manager, provided that such Leasehold Mortgage shall not encumber the City's fee
simple title to the City Property.
Notwithstanding anything to the contrary in this Section or in this Lease, it is expressly
agreed by and between the Lessor and the Lessee, and (by acceptance of the Leasehold
Mortgage) any Leasehold Mortgagee that the Lessee's right to place a Leasehold Mortgage
against the Lessee's Leasehold Estate is subject to the following:
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1. At the time the Leasehold Mortgage is made,. the Lessee has not been
notified of any Event of Lessee's Default under this Lease which
remains uncured.
2. No Leasehold Mortgagee or anyone claiming by, through or under the
Leasehold Mortgage, shall , by virtue of it, acquire any greater rights in
the Subject Property than the Lessee has under this Lease.
3. The Leasehold Mortgage shall be expressly subject and subordinate to
all conditions and covenants of this Lease and to the rights and
obligations of the Lessor. The Leasehold Mortgagee of any Leasehold
Mortgage and the owner of any indebtedness _ secured by the Leasehold
Mortgage, upon acquiring Lessee's Leasehold Estate shall take the same
subject to the covenants of this Lease.
4. The Leasehold Mortgage shall expressly provide that the Leasehold
Mortgagee shall notify Lessor of default by Lessee under the Leasehold
Mortgage prior to commencing foreclosure proceedings.
5. That any right or remedy available to any Leasehold Mortgagee as
provided in Article VI shall be deemed to apply in all respects to any
affiliated designee or nominee of such Leasehold Mortgagee.
6. That the Lessor and any mortgagee of Lessor shall execute and deliver
to any Leasehold Mortgagee a non -disturbance agreement in form and
substance reasonably satisfactory to such Leasehold Mortgagee and
Lessor.
7. That except as expressly prohibited by the provisions of this Article VI,
any Leasehold Mortgage may be upon such terms and conditions as the
Lessee and Leasehold Mortgagee may agree.
In no event may the amount of such financing or refinancing exceed the greater of: (a)
Eighty (80) per cent of the Fair Market Value of the Leasehold Estate and all the Leasehold
Improvements thereon, or (b) the Total Construction Costs and/or Eighty percent (80%)
Replacement Costs ("Replacement Costs" are defined to be Total Construction Costs in the
future for replacing and/or replacing and improving the Leasehold Improvements including the
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attractions located on the Subject Property) . Lessee shall deliver to City promptly after
execution by Lessee a true and verified copy of any Leasehold Mortgage, and/or any
amendment, modification or extension thereof, together with the name and address of the
owner and holder thereof. Lessee may not encumber Lessee's Leasehold Estate as security for
any indebtedness of Lessee with respect to any other real or personal property now or
hereinafter owned 'by Lessee.
(b) During the continuance of any Leasehold Mortgage until such time as the lien of
any Leasehold Mortgage has been satisfied, and if a true and verified copy of such Leasehold
Mortgage shall have been delivered to the City Manager together with a written notice of the
name and address of the owner and holder thereof as provided in Section 6.1(a) above:
(i) The City shall not agree to any mutual termination nor accept any'
surrender of this Lease (except upon the expiration of the Term), nor shall the City consent to
any material amendment or modification of this Lease, or waive any rights or consents it may
be entitled to pursuant to the terms hereof, without the prior written consent of Leasehold
Mortgagee, which consent shall not be unreasonably delayed or withheld.
(ii) Notwithstanding any default by Lessee in the performance or observance
of any covenant, condition or agreement of this Lease on the part of Lessee to be performed or
observed, the City shall have no right to terminate this Lease even though an Event of
Lessee's Default under this Lease shall have occurred and be continuing, unless and until the
City Manager shall have given Leasehold Mortgagee written notice of such Event of Lessee's
Default; and Leasehold Mortgagee shall have failed to remedy such default or to acquire
Lessee's Leasehold Estate created hereby or to commence foreclosure or other appropriate
proceedings in the nature thereof, all as set forth in, and within the time specified by, this
Article VI.
(iii) Subject to the provisions of subparagraph (iv) immediately below,
Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to
termination of this Lease, to pay all of the Rent due hereunder, to provide any insurance, to
pay any taxes and make any other payments, to make any repairs and improvements, to
continue to construct and complete the Leasehold Improvements, and do any other act or thing
required of Lessee hereunder, and to do any act or thing which may be necessary and proper
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to be done in the performance and observance of the covenants, conditions and agreements
hereof to prevent the termination of this Lease. All payments so made and all things so done
and performed by Leasehold Mortgagee shall be as effective to prevent a termination of this
Lease as the same would have been if made, done and performed by Lessee instead of by
Leasehold Mortgagee. Any act or inaction by a Leasehold Mortgagee shall be at the
reasonable discretion of the Leasehold Mortgagee.
(iv) Should any Event of Lessee's Default under this Lease occur, Leasehold
Mortgagee shall have Sixty (60) days, or such additional time as is reasonably necessary to
diligently cure same, after receipt of notice from the City Manager setting forth the nature of
such Event of Lessee's Default, to remedy same and, if the default is such that possession of
the Subject Property may be reasonably necessary to remedy the default, Leasehold Mortgagee
shall, within such Sixty (60) day period, commence and diligently prosecute a foreclosure
action or such other proceeding as may be necessary to enable Leasehold Mortgagee to obtain
such possession; provided that (aa) Leasehold Mortgagee shall have fully cured any default in
the payment of any monetary obligations of Lessee under this Lease within such Sixty (60) day
period and shall continue to pay currently such monetary obligations as and when the same are
due, (bb) Leasehold Mortgagee shall within Six (6) months of the date that it takes possession
of the Subject Property employ an Acceptable Operator for the continued operation of the
Project, under the terms and conditions of this Lease, and (cc) Leasehold Mortgagee shall have
acquired Lessee's Leasehold Estate created hereby or commenced foreclosure or other
appropriate proceedings in the nature thereof within such Sixty (60) day period or prior
thereto, and shall .be diligently and continuously prosecuting any such proceedings to
completion. All rights of the City Manager to terminate this Lease as the result of the
occurrence of any such Event of Lessee's Default shall be subject to and conditioned upon the
City Manager having first given Leasehold Mortgagee written notice of such Event of
Lessee's Default and Leasehold Mortgagee having failed to remedy such default or acquire
Lessee's Leasehold Estate created hereby or commence foreclosure or other appropriate
proceedings in the nature thereof as set forth in and within the time period specified by this
subparagraph (iv).
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C.
(v) An Event of Lessee's Default under this Lease which in the nature
thereof cannot be remedied by Leasehold Mortgagee shall be deemed to be remedied if: (aa)
within Sixty (60) days after receiving written notice from the City Manager setting forth the
nature of such Event of Lessee's Default, Leasehold Mortgagee shall have acquired Lessee's
Leasehold Estate or commenced foreclosure or other appropriate proceedings in the nature
thereof; (bb) Leasehold Mortgagee shall diligently and continuously prosecute any such
proceedings to completion; (cc) Leasehold Mortgagee, within such Sixty (60) day period, shall
have fully cured any default which does not require possession of the Subject Property,
including a default in the payment of any monetary obligations of Lessee under this Lease and
shall thereafter continue to faithfully perform all such obligations which do not require
possession of the Subject Property; and (dd) within Six (6) months after Leasehold Mortgagee
shall have gained possession of the Subject Property, Leasehold Mortgagee shall have
employed an Acceptable Operator and shall continue to employ an Acceptable Operator
throughout the Lease Term.
(vi) If the Leasehold Mortgagee is prohibited by any process, or injunction
issued by any court, or by reason of any action by any court having jurisdiction of any
bankruptcy, debtor rehabilitation or insolvency proceedings involving Lessee from
commencing, or prosecuting foreclosure or other appropriate proceedings in the nature
thereof, the times specified in subparagraphs (iv) and (v) above for commencing or
prosecuting such foreclosure or other proceeding shall be extended for the period of such
prohibition; provided that Leasehold Mortgagee shall have fully cured any default including a
default in the payment of any monetary obligations of Lessee under this Lease, and shall
continue to perform currently such obligations as and when the same fall due, and provided
that Leasehold Mortgagee shall diligently attempt to remove any such prohibition.
(vii) - The City Manager shall mail to Leasehold Mortgagee a duplicate copy
by certified mail of any and all notices which the City may from time to time give to or serve
upon Lessee pursuant to the provisions of this Lease; no notice by the City Manager to Lessee
hereunder shall be deemed to have been given unless and until a copy thereof has been mailed
to the Leasehold Mortgagee.
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(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by
judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or
any conveyance of the Leasehold Estate to Leasehold Mortgagee by virtue or in lieu of the
foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent
of the City or constitute a breach of any provision of, or'a default under this Lease. Upon
such foreclosure, sale or conveyance, the City shall recognize Leasehold Mortgagee, or any
other foreclosure sale purchaser, as tenant hereunder; provided, that Leasehold Mortgagee or
any such foreclosure sale purchaser shall qualify as or shall employ an Acceptable Operator
within Six (6) months of the date of such foreclosure, sale or conveyance, and shall continue
to qualify as or employ an Acceptable Operator throughout the Lease Term. Said Acceptable
Operator to be subject to approval by the City Manager which approval shall not be
unreasonably withheld or delayed. Further, provided, that in the event there are two or more
Leasehold Mortgages 6r foreclosure sale purchasers (whether the same or different Leasehold
Mortgages), the City shall have no duty or obligation whatsoever to determine the relative
priorities of such Leasehold Mortgages or the rights of the different holders thereof and/or
foreclosure sale purchasers.
(ix) Subject to the restrictions and limitations imposed on the Lessor by the
Charter of the City of Miami and the provisions of Section 6.2, Lessor and Lessee shall
cooperate in including in this Lease by suitable amendment from time to time any provision
which may be requested by any proposed Leasehold Mortgagee, or may otherwise be
reasonably necessary, to implement the provisions of this Article VI; provided, however, that
any such amendment shall not in any way affect the Lease Term.
Section 6.2. No Waiver of Lessee's Obligations or City's Rights. Nothing contained
herein or in any Leasehold Mortgage shall be deemed or construed to relieve Lessee from the
full and faithful observance and performance of its covenants, conditions and agreements
contained herein, or from any liability for the non -observance or non-performance thereof; or
to require or provide for the subordination to the lien of such Leasehold Mortgage of any
estate, right, title or interest of the City in or to the Project, the City Property or this Lease.
Nothing in this Lease Agreement shall be deemed an agreement on the part of the Lessor to
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subordinate its fee simple interest in the Subject Property or City Property to the lien of any
Leasehold Mortgage placed on the Lessee's Leasehold Estate.
ARTICLE VII
ADDITIONAL CONDITIONS OF LEASE AGREEMENT
AND RESTRICTIONS UPON USE OF SUBJECT PROPERTY
Section 7.1. Certain Conditions Of Leasing. For the Lessee itself and every other
Person who is a beneficiary of the Lessee or a permitted successor in interest in or to any part
of the Subject Property, and who is able to control the use or leasing of the Subject Property,
and Subtenants, shall be subject to the following covenants and agreements which shall run
with the Subject Property:
(a) Devote the Subject Property only to those uses specified in this Lease
Agreement and ancillary and related uses allowed by Applicable Law; and
(b) Not discriminate in violation of any Applicable Laws upon the basis of race,
color, religion, sex, or national origin in the sale, lease or rental, or in the use or occupancy
of the Subject Property, or the Leasehold Improvements erected or to be erected on it or on
any part of it.
Section 7.2. Restrictive Covenants. The restrictive covenants contained in Section
7.3 below are intended and designed to bind the Lessee and the City and their respective
successors and assigns and bind upon and run with the Subject Property throughout the Lease
Term. The Parties recognize, however, that the development and operation of the Subject
Property and the Leasehold Improvements in a manner which is in the best interest of both
Parties may from time to time require the confirmation, clarification, amplification, or
elaboration of this Lease in order to deal adequately with circumstances which may not now be
foreseen or anticipated by the Parties. The Lessee and the City Manager reserve unto
themselves the right to enter into such interpretive, implementing or confirmatory agreements
from time to time as they may deem necessary or desirable for any such purpose without
obtaining the consent or approval of any Person or entity not a party to this Lease, except as
may be expressly otherwise provided in this Lease or by law.
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Section 7.3. Additional Conditions and Restrictions Upon Use of Subject Property.
(a) Lessee hereby agrees that the Subject Property shall not be used for the
following:
1. any unlawful or illegal business;
2. any adult entertainment and/or adult service establishments as defined in
Article 25 of Ordinance 11000, as amended, the. Zoning Ordinance of the
City of Miami;
3. the rental and/or operation of jet skis and/or any similar motorized,
personal water craft vessels;
4. hauling and/or dry land storage of vessels 28 feet in length and under
which said storage prohibition shall include repairing, surveying or
offering for sale, provided, however, in the event Grove Key Marina, Inc.
consents to such hauling and/or dry land storage of a specific vessel at a
specific time, then Lessee shall not be in default hereinunder. Upon
termination of the Grove Key Marina, Inc. lease, the Parties shall have the
right but not the obligation to negotiate the release of this prohibition.
5. Entertainment vessels which provide gambling activities shall be subject to
the approval of the City Manager which approval may be conditioned
which conditions may include the requirement of additional consideration
to the City.
6. Lessee agrees that if casino gambling shall in the future become legal in
the City of Miami, the Subject Property hereby demised shall not be used
for casino gambling, or games of chance or reward, unless:
(i) Lessee obtains the prior consent of the Lessor, which consent
may be withheld at the sole discretion of the City Commission; and
(ii) if the Lessor consents, the parties shall in good faith negotiate an
appropriate modification or amendment to this Lease, permitting such use and providing for
the payment by the Lessee to the Lessor, as additional rent, of an amount to be negotiated by
the parties.
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(b) - Permitted Uses Upon Subject Property. The uses permitted on the Subject
Property are: a boatyard facility, marina, boatyard/marina office, marine fueling facility,
charter boat concession operations, food service concession, convenience services/boater
amenities, boat yard/marina related retail, boat brokerage/dealer, marine trades school,.
public/urban/community market, historic interpretive/interactive facility and/or exhibits,
historic facility related retail, meeting/conferencing facility, educational facility, market and/or
historic facility related office, prepared food service concession, parking, and recreational
amenities and such other uses as may be ancillary, supportive, necessary or incidental thereto.
(c) Enforceability. It is intended and agreed hereby that the restrictive covenants
contained in this Section 7.3 shall be binding upon the City and the Lessee, their successors
and assigns, as covenants running with the land and successors in interest, as the case may be,
and shall be for the benefit and in favor of, and enforceable by, either the City and/or Lessee;
provided however, that such covenants shall be binding on Lessee, and the City, and their
respective successors in interest and assigns, only for such period as each shall have (i) fee
title to the Subject Property as to the City, and (ii) the Lessee's Leasehold Estate herein
demised to Lessee, as. to Lessee.
Section 7.4. Historic Preservation Requirements. At all times during the Lease
Term, and in accordance with Section 23 of the Code of the City of Miami, as amended,
Lessee agrees that:
(a) all Work done at the Historic Property shall conform in architectural style and
aesthetic form with the overall historic character of the Pan American Sea Plane Base and
Terminal Building Historic Site;
(b) all alterations, modifications and/or changes to the exterior of the existing,
historic hangars at the Historic Property shall be approved by the City's Historic and
Environmental Preservation Board prior to Work being performed; and
(c) any alterations, modifications and/or changes to the exterior of the existing,
historic hangars at the Historic Property shall meet the Secretary of the Interior's Standards for
Rehabilitation.
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ARTICLE VIII
RESTRICTIONS ON TRANSFERS OF
LESSEE'S LEASEHOLD ESTATE
Section 8.1. Representations as to Development of the Project. The Lessee
represents and agrees for itself, and its permitted successors and assigns, that the Subject
Property will be used, solely for the uses generally described in the Statement of Background
and Purpose, and this Lease. The Lessee further recognizes that:
(a) the operational experience of the Lessee was given special consideration by the
Lessor in the selection process which resulted in the award of this Lease; and
(b) any direct or indirect Transfer of interest of Lessee's Leasehold Estate, is for
practical purposes a Transfer (as defined in Section 8.2 below) of the Lessee's Leasehold
Estate; and
(c) the qualifications and identity of the Lessee and its present Owners are of
particular concern to the community and the Lessor; and
(d) it is partially because of such qualifications and identity that the Lessor is
entering into this Lease.
Section 8.2. Definitions. As used herein, the term:
(a) "Transfer" means:
(i) any total sale, assignment or conveyance (other than by a Leasehold
Mortgage) of this Lease or of the Lessee's Leasehold Estate; or
(ii) in the event Lessee is a corporation or other legal entity, transfer shall
mean any transfer of more than 15 per .cent of the stock, membership interest or beneficial
interest of Lessee or of any Owner of Lessee (unless Lessee or such Owner is publicly traded);
(iii) any merger, consolidation or sale or lease of all or substantially all of
the assets of Lessee or of any Owner, other than an Owner whose shares are publicly traded;
or
(iv) any Sublease of the entire Subject Property to a single Subtenant or
Subtenants who are related in their ownership.
(b) "Owner" means:
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i) in the event Lessee is a corporation Owner shall mean any Person, firm,
corporation or other entity which owns, directly or indirectly, legally or beneficially, more
than 15 per cent of the stock of the Lessee, but shall not include an Owner whose shares are
publicly traded.
ii) in the event Lessee is a partnership or limited liability company, Owner
shall be any Person which owns, directly or indirectly, legally or beneficially, more than 15
per cent of the partnership or membership interest(s) of the Lessee, (but shall not include an
Owner whose shares are publicly traded).
(c) "Owner whose shares are publicly traded" means an Owner:
(i) who has filed an effective registration statement with the Securities &
Exchange Commission (or its successor) with respect to the shares of any class of its voting
stock or of all classes of any other form of ownership interest which includes voting rights;
and
(ii) whose voting stock and other form of ownership interest described in
clause (i) is listed for trading purposes on a securities exchange subject to the regulatory
jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded
over the counter.
Section 8.3. Transfers. Due to the complex nature of this Project, the Project shall at
all times be directly managed by an Acceptable Operator; as of the Lease Date, the City agrees
that Lessee is an Acceptable Operator. Should any death or dissolution of an Owner occur
during this Lease Term, the Lessee shall have a period of six (6) months to re -instate an
Acceptable Operator. Except as permitted pursuant to subparagraphs (a) through (e) hereof,
and subject to the provision of Section 8.5, no Transfer may be made, suffered or created by
Lessee or any Owner. The following Transfers shall be permitted hereunder:
(a) Any Transfer by Leasehold Mortgagee to an investor.
(b) Any Transfer directly resulting from the foreclosure of a Leasehold Mortgage
or any Transfer made by the purchaser at foreclosure of a Leasehold Mortgage, provided that
such purchaser within Six (6) months after taking possession of the Subject Property, shall be
or shall have employed and continue to employ throughout the Lease Term an Acceptable
Operator.
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(c) From and after the date that the Project has been in operation for Five (5) years
after the opening date, any Transfer to an assignee or purchaser, approved by the City
Manager, which approval shall not be unreasonably withheld or delayed, provided that in
connection with such Transfer, the Project shall be directly managed by an Acceptable
Operator.
(d) Any Transfer resulting from the death or dissolution of an Owner, provided that
same does not result in the dissolution or termination of Lessee.
(e) Any Transfer by a stockholder, or Owner of Lessee made for estate planning
purposes.
(f) Any Transfer by a Stockholder, Member or Owner of Lessee to an original
Stockholder, Member or Owner of Lessee
The parties hereby acknowledge and agree that anything herein to the contrary
notwithstanding, the "going public" by Lessee, including, but not limited to, the filing of a
registration statement with . the Securities & Exchange Commission, the creation of one or
more classes of stock and the offering of shares of stock to the public for purchase, shall not
constitute a Transfer hereunder and shall not require the consent of the City so long as at all
times during the Lease Term, the Lessee or an Acceptable Operator operates the Project.
It is the intent of the parties that at all times during the Lease Term, that (i) the use and
occupancy of the Subject Property shall be subject to this Lease, (ii) Lessor shall be in privity
of contract and of estate with only the Lessee, and (iii) the Subject Property and Lessee's
Leasehold Estate shall be under the Control of a single Person. Therefore, notwithstanding
anything to the contrary in this Article, the Lessee -is expressly prohibited from assigning or
selling its right, title and interest under this Lease with respect to a portion of the Subject
Property without the prior written consent of the City Manager which consent may be withheld
or delayed for any or no reason whatsoever.
Any consent to a Transfer shall not waive any of the City's rights to consent to a
subsequent Transfer. Any Transfer made in violation of the terms of this Article shall be null
and void and of no force and effect.
Section 8.4. Notice of Transfer; Information as to Shareholders.
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(a) With respect to any Transfer which must be approved by the City Commission,
Lessee shall give or cause to be given to the Lessor written notice (including all information
necessary for the City Manager to make an evaluation and recommendation to the City
Commission as to the proposed Acceptable Operator according to the requirements of this
Lease Agreement) of any Transfer of which Lessee or its officers shall have knowledge, as
soon as practicable days prior to any such proposed Transfer, and the Lessor shall within
Thirty (30) days of its receipt of such information, advise Lessee in writing if it shall consent
to same. If the Lessor shall not consent to a Transfer, the Lessor shall state the reasons for
such disapproval in its notice to Lessee withholding its consent. If the City Manager is not
required to consent to a Transfer pursuant to the terms hereof, Lessee shall notify the Lessor
in writing of same within Thirty (30) days after the date of Transfer.
(b) Lessee shall from time to time throughout the Lease Term of this Lease, as the
Lessor shall reasonably request, furnish the Lessor with a complete statement, subscribed and
sworn to by the President or Vice -President and the Secretary or Assistant Secretary of the
Lessee, setting forth the full names and addresses of holders of stock or membership interests
in Lessee, and the extent of their holdings, and in the event any other Person has a beneficial
interest in such stock or membership interest, their full names and addresses and the extent of
such interest as determined or indicated by the records of Lessee; or copies of Lessee's annual
corporate returns. Notwithstanding the foregoing, the information required by this
subparagraph (b) shall not be required to be furnished with respect to the shareholders of any
Owner or Lessee whose shares are publicly traded.
Section 8.5 Criteria for Consent for Assignments and/or Purchase of Subject
Property. It is expressly understood and agreed that the City Manager may reasonably
withhold its consent to any Transfer using the following criteria:
(i) The net assets of the Transferee and its principals immediately prior to
the Transfer shall not be less than the greater of: (a) the net assets of Lessee immediately prior
to the Transfer,; (b) the net assets of Lessee on the Lease Date adjusted for inflation; or (c) an
amount reasonably necessary to discharge Lessee's remaining obligations hereunder;
(ii) Such Transfer shall not adversely affect the quality and type of business
operation which Lessee has'conducted theretofore;
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(iii) Such Transferee, or its Acceptable Operator shall possess qualifications
or experience necessary to successfully operate such a business.
(iv) Such Transferee shall assume in writing, in a form acceptable to Lessor,
all of Lessee's obligations hereunder and Lessee shall provide Lessor with a copy of all
documents pertaining to the Transfer;
Section 8:6 Effectuation of Certain Permitted Transfers. No Transfer of the nature
described in subsection (c) of Section 8.3 shall be effective unless and until:
(a) all Rent, Impositions, insurance, permitting and other charges due and owing as
of the date of Transfer and required to be paid by the Lessee under this Lease Agreement shall
be paid by the Lessee up to the date of Transfer and all other covenants and agreements to be
kept and performed by the Lessee shall be substantially complied with at the date of the
Transfer; and
(b) the entity to which such Transfer is made, by instrument in writing reasonably
satisfactory to the City Attorney, and in form recordable among the land records, shall, for
itself and its successors and assigns, and especially for the benefit of the City, expressly
assume all of the obligations of Lessee under this Lease and agree to be subject to all
conditions and restrictions to which Lessee is subject; provided, however, that any Leasehold
Mortgagee, or any affiliated designee or nominee thereof, -shall not be required to assume any
personal liability under this Lease with respect to any matter arising prior or subsequent to the
period of such Transferee's actual ownership of the Leasehold Estate, (it being understood,
nevertheless, that the absence of any such liability for such matters shall not impair, impede or
prejudice any other right or remedy available to the City for default by Lessee).
Section 8.7 Transfers of the City's Interest At the Lessee's request, Lessor shall
provide the Lessee copies of any and all agreements or contracts pertaining to the total or
partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode
or form of or with respect to the City's reversionary or fee interest in the Subject Property or
any part thereof, or any interest therein, or any contract or agreement to do any of the same,
to any purchaser, assignee, mortgagee, trustee or any other transferee. Lessor hereby agrees
to incorporate the terms and conditions set forth in this Lease Agreement, in any agreement or
contract with such purchaser, assignee, mortgagee, or trustee. The entity to which the City
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assigns, conveys, or mortgages the Subject Property, by instrument in writing reasonably
satisfactory to the Lessee, which approval shall not be unreasonably withheld or delayed; and
in a form recordable among the land records, shall, for itself and its successors and assigns,
and especially for the benefit of the Lessee, expressly assume all of the obligations of Lessor
under and related to this Lease and agree to be subject to all conditions and restrictions to
which Lessor is subject. Any mortgagee shall sign an attornment and non -disturbance
agreement reasonably satisfactory to the Lessee. Lessee shall attorn to any transferee of the
City's reversionary or fee interest in the Subject Property or any part thereof, or any interest
therein, (whether such transferee acquires such interest by way of a total or partial sale,
assignment, conveyance, mortgage, trust or power, or any other transfer in any mode or form)
provided that prior to such transfer by the City, the City shall cause to be executed in favor of
and delivered to Lessee by such transferee a non -disturbance agreement reasonably satisfactory
to Lessee.
Section 8.8 Acceptance of Rent from Transferee. The acceptance by Lessor of the
payment of Rent following any Transfer prohibited by this Article shall not be deemed to be a
consent by Lessor to any such Transfer, nor shall the same be deemed to be a waiver of any
right or remedy of Lessor hereunder.
Section 8.9 Participation on Sale of Lessee's Business and/or Transfer.
(a) In the event that Lessee shall sell its business located on the Subject Property,
or realizes a Transfer, as specified in Subsection 8.3(c), or sells Lessee's stock or membership
interest4subject to the provisions of 8.9(b) below with respect to publicly traded. stock), upon
receipt by Lessee of the proceeds related to such Transfer or sale, Lessee shall pay Lessor an
amount equal to Three percent (3 %) of the net proceeds of sale as defined below.
(b) In the event Lessee "goes public" and Lessee's interest in the Leasehold Estate
is owned by the public corporation, then Lessee shall be responsible to pay an amount equal to
Three percent (3 %) of net proceeds of sale attributable to the initial public offering.
For purposes hereof, net proceeds of sale shall mean the net proceeds to Lessee, or
Owner transferring such interest, remaining after payment of (i) any Leasehold Mortgage or
other debt to the Subject Property as prorated proportionately to the interest being transferred;
(ii) all reasonable cost and expenses of the sale or Transfer, including commissions, fees, and
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closing costs; (iii) any and all reasonable costs, fees, commissions and expenses relating to any
public offering of the sale or Transfer.
ARTICLE IX .
EASEMENTS
Section 9.1. Easements.
(a) Easements Reserved by Lessor. The Lessee agrees to grant to Lessor and/or
any public utility company the following permanent and perpetual easements, in, to, over,
under and across the Subject Property, including reasonable rights of ingress and egress to and
from said areas:
(i) a non-exclusive right and easement for the installation, operation,
maintenance, repair, replacement, relocation, and removal of utility facilities such as water
lines, fire lines, gas mains, electrical power lines, telephone lines, storm and sanitary sewers
and other utility lines and facilities, in the location(s) to be shown on the approved
Construction Documents or in such other locations as may be requested by the Lessor and
approved by Lessee from time to time during the Lease Term. Within a reasonable time after
the Lease Date, Lessor shall provide Lessee the necessary survey and other information so as
to fix the location(s) of any easements required for the operation of the Subject Property.
(b) Easements Granted to Lessee. The City grants to Lessee, its successors and
assigns, subject to receiving additional approvals as may be required from any other entity in
control of the proposed easement area, the following:
(i) the non-exclusive right and easement (the "Lessee Utility Easement") to
install, operate, maintain, repair, relocate, replace and remove .utility facilities such as water,
.gas, electric, telephone lines, and storm and sanitary sewers underground within portions of
Dinner Key which is not a dedicated street, in such location(s) therefore shown on the
.approved Construction Documents or in such other locations as - may be requested by the
Lessee and approved by the Lessor from time to time during the Lease Term;
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•
•
(ii) the non-exclusive right to use portions of Dinner Key in common with
the public, subject to the City's right to restrict portions of Dinner Key for reasonable periods
during special events, for the unobstructed pedestrian access to and from the Subject Property
by Lessee and the Subtenants and their employees, agents, customers and invitees .to all of the
public areas of Dinner Key as may now exist or as may be available to the public in the future,
including, but not limited to, the bay walks, bike paths, sidewalks and other open spaces;
(iii) the reasonable right and easement to enter onto those portions of Dinner
Key for the purpose of performing maintenance and repairs to the Leasehold Improvements,
such maintenance and repairs to be performed in a manner which will minimize disruption to
others; and
(c) Duration of Easements. Unless a shorter term is provided, each of the rights
and easements granted or reserved in this Article shall be for the Lease Term.
Section 9.2 Confirmatory Instruments. Each Party covenants and agrees that from
time to time at the request 'of the other party, it shall execute and deliver such additional
documents or instruments confirming the rights and easements granted and reserved in this
Article, or more precisely fixing their location as such requesting party shall deem to be
necessary or desirable.
ARTICIR X
PAYMENT OF IMPOSITIONS
Section 10.1. Payment of Impositions. The Lessee agrees to pay or cause to be paid,
all Impositions before any fine, penalty or interest is added for nonpayment.
If by law any Imposition is payable or may, in the case of taxes, at the option of the
taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of
the Imposition), the Lessee may pay the same (and any accrued interest on the unpaid balance
of the Imposition), in installments before any fine, penalty, interest or cost is added for the
nonpayment of any installment and interest. Any Imposition relating to a fiscal period of the
taxing authority, a part of which period is included before the Possession Date and part of
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which is included after the Possession Date shall be adjusted as between the Lessor and the
Lessee as of the commencement of the Lease Term, so that the Lessee shall pay that
proportion of the Imposition attributable to that part of the fiscal period included in the Lease
Term, and the Lessor shall pay the remainder, if applicable. Any Imposition relating to a
fiscal period of the taxing authority, a part of which period is included within the Lease Term
and a part of which is included in a period of time after Lease Term shall be adjusted as
between the Lessor and the Lessee as of the termination of the Lease Term, so that the Lessee
shall pay that proportion of the Imposition attributable to that part of the fiscal period included
in the term of this Lease, and the Lessor shall pay the remainder, if applicable.
Section 10.2. Payment of Ad Valorem Real Property Taxes. Notwithstanding the
above, Lessee agrees that to the extent that the Subject Property, Lessee's Leasehold Estate
and the Leasehold Improvements are subject to ad valorem taxation, Lessee, at the option of
the Lessee, may enroll in the Dade County Ad Valorem Tax Payment Plan (the "Tax Plan").
Failure to pay taxes when due shall constitute an Event of Lessee's Default under this Lease.
In the event the Tax Plan is discontinued, the City Manager and Lessee shall develop a
payment method to insure the monthly or quarterly payment of such taxes in advance of the
due date.
Section 10.3. Lessee's Right to Contest Impositions.
(a) Lessee's Right to Contest Impositions. Anything herein to the contrary
notwithstanding, Lessee shall have and retain the right to contest by .legal proceedings, or in
such other manner as it may deem suitable, any Imposition, (including ad valorem tax on the
Subject Property and the Leasehold Improvements), or any valuation in connection therewith,
without the consent of Lessor, even if the same ultimately results in the payment of any
interest, costs or penalties. Notwithstanding the above, if at any time during the last Three (3)
years of the Lease Term Lessee shall contest an Imposition (including ad valorem tax on the
Subject Property and the Leasehold Improvements), Lessee may defer payment of a contested
item upon the condition that, before instituting any such proceedings, Lessee shall furnish to
Lessor, or to any mortgagee Lessor may designate, a surety company bond, a cash deposit, or
other security satisfactory to Lessor and such mortgagee, sufficient to cover the amount of the
contested item or items, securing payment of such contested items.
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The legal proceedings herein referred to shall include appropriate proceedings to
review tax assessments and appeals from order therein and appeals from any judgments,
decrees or orders. Any such contest shall delay the time periods set forth -in Section 10.1
above.
Section 10.4 Payment of Ad Valorem Taxes to the City of Miami. For the
purposes of this Section 10.4, "City" shall mean the City of Miami acting in its capacity as a
municipal corporation of the State of Florida providing municipal services to the Subject
Property and not as "Lessor".
Should the Lessee be successful in obtaining a tax exemption for either the Subject
Property and/or the Leasehold Improvements, the Lessee shall, in accordance with Section
29A(e)(2) of the Charter of the City of Miami, Florida, as amended, pay an amount equal to
what the City's portion of the ad valorem real property taxes would be if the Subject Property
and/or the Leasehold Improvements were privately owned and used for a profit -making
purpose (the "City Payment in Lieu of Tax"). Lessee shall pay the City Payment in Lieu of
Tax to the City in accordance with the deadlines established for payment of Dade County ad
valorem real property taxes. So long as the City remains the Lessor, any disputes concerning
the amount of the City Payment in Lieu of Tax, or the assessed value of the Subject Property
and/or the Leasehold Improvements shall be subject to Arbitration in accordance. with Article
XVII. In the event the City continues to provide said services but is no longer the Lessor, the
City and Lessee agree that any disputes concerning the amount of City Payment in Lieu of Tax
shall be submitted to Arbitration in accordance with Article XVII. Should the City, acting in
its capacity as a public agency, no'longer provide municipal services to the Subject Property,
including but not limited to, fire and police services, then the requirement to pay the City
Payment in Lieu of Tax shall be null and void.
Section 10.5. Proof of Payment. Within Thirty (30) days after the date whenever any
Imposition is paid by or on behalf of the Lessee, upon request by Lessor, the Lessee shall
furnish to Lessor official receipts of the appropriate taxing authority, photocopies or other
proof satisfactory to the Lessor, evidencing the payment.
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ARTICLE ICI
TNRT TR ANCR
Section 11.1. Insurance on the Leasehold Improvements. Beginning on the Possession
Date and at all times during the Lease Term, Lessee shall, at the Lessee's sole cost and
expense but for the benefit of the Lessor and the Lessee as their interests may appear, maintain
the following insurance to the extent it is commercially available:
(a) "All Risk" property insurance including coverage against loss or damage by fire,
windstorm, flood with such endorsement for extended coverage, vandalism, malicious mischief,
sprinkler leakage and special coverage, including flammable materials used for cooking, insuring
One Hundred Percent (100%) of the full replacement cost of the Leasehold Improvements
(exclusive of foundation and excavation costs), Lessee's alterations, improvements,. fixtures,
equipment, furniture, trade fixtures and floor coverings, including the expense of the removal of
debris as a result of damage by an insured peril (collectively"`Insured Property") on the Subject
Property, with a maximum deductible of Five Thousand Dollars ($5,000.00) for all perils other
than windstorm and Five percent (5%) of the insured value for the peril or windstorm.. The
Lessor and Lessee shall be named as Loss Payees and insureds.
Unless expressly waived in writing by the .City Manager, the replacement cost of the
Insured Property . shall be determined every Three (3) years during the Lease Term by an
insurance appraiser, selected and paid for by the Lessee, provided that the Lessee shall obtain
the Lessor's approval. (which approval shall not be unreasonably withheld) of the appraiser
before commencement of the appraisal. The appraiser selected by the Lessee shall submit a
written report of the appraised replacement cost to the Lessor and the Lessee. If the Lessor or
the Lessee is not satisfied with this report, the dissatisfied party shall serve upon the other a
notice of dissatisfaction within Thirty (30) days after receipt of the report and Parties shall in
good faith attempt to resolve any disputes concerning the appraised replacement cost. During
this period of the dispute, the Lessee shall continue to maintain insurance in an amount equal
to the greater of: the amount determined by the appraiser or that maintained before the dispute
arose.
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r
Should a dispute arise concerning the appraised replacement cost of the Subject
Property as described and insured in this Section 11.1 (a),said dispute shall be submitted to
arbitration in accordance with the provisions set forth in Article XVII of this Lease
Agreement.
Immediately upon receipt of the appraiser's report, the Lessee shall procure and deliver
to the Lessor written confirmation from the insurer(s) evidencing the increase in insurance
which may be required to comply with the provisions above.
During the construction of the Leasehold Improvements, Lessee shall carry or cause to
be carried Worker's Compensation Insurance and .any such other insurance as may be required
by law to be carried by Lessor .and Lessee or either of them in connection with the
construction.
(b) All Risk Builders insurance covering one hundred percent (100%) of the
completed .replacement cost during periods of excavation and/or construction or during periods
of alteration or during periods of restoration in the event of damage or destruction or
condemnation or during periods or razing or demolition at, in or on the Subject Property, the
Leasehold Improvements or any part of it.
(c) Business Interruption insurance covering "All Risk" perils in the limits of
which insurance, if available, shall not be less than the Minimum Annual Rent and the debt
service payments for the Leasehold Improvements during the full period of reconstruction
following a total loss. Only the Lessee shall be named as a loss payee and insured.
(d) Equipment Breakdown (Boiler and Machinery) insurance covering repair and
replacement of all boilers, machinery and breakdown of all major mechanical, hydraulic and
electrical equipment serving or benefiting the Leasehold Improvements, the policies of
insurance to be endorsed so as to provide use and occupancy coverage for the Leasehold
Improvements in such amount as may be reasonably acceptable to Lessor. The Lessor and
Lessee shall be named as Loss Payees and insureds.
Section 11.2. Other Insurance To Be Carried. The Lessee shall also, at the Lessee's
sole cost and expense but for the mutual benefit of the Lessor and the Lessee (with Leasehold
Mortgage clauses for the benefit of any Leasehold Mortgagee, which clauses shall be subject
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to and not inconsistent with the terms of this Lease Agreement), maintain the following
insurance:
(a) Commercial General Liability insurance on a comprehensive general liability
coverage form, or its equivalent, including contractual liability, products and completed
operations, personal injury, liquor legal liability, and premises and operations coverages
against all claims, demands or actions, bodily injury, personal injury, death or property
damage occurring in the Subject Property, the limits of which shall not be less than Two
Million Dollars ($2,000,000) per occurrence combined single limit for bodily injury and
property damage.
(b) Marina Operators Legal Liability insurance, the limits of which shall not be less
than One Million Dollars ($1,000,000.00).
(c) Pollution/Environmental Impairment Liability insurance coverage on an
occurrence basis with limits of One Million Dollars ($1,000,000.00) per occurrence, providing
coverage for the damage caused by spillage of any fuel, petroleum products or any other
Hazardous Substances, whether those substances are solid, liquid or gaseous. Said policy of
insurance shall also provide coverage for the cost of cleanup of the affected area and for the
removal, transportation and safe disposal of any contaminated area.
(d) Automobile Liability insurance covering all owned, non -owned and hired
vehicles used in conjunction with operations covered by this Lease Agreement, along with
Garage Keepers Liability insurance coverage. The policy or policies of insurance shall contain
such limits as may be, reasonably requested by the Lessor from time to time but not less than
One Million Dollars ($1,000,000.00) for bodily injury and property. damage. Only the Lessee
shall be named as an insured in the Automobile Liability insurance policy.
(e) Workers' Compensation insurance in the amounts and types required by
Chapter 440, Florida Statutes. Only the Lessee shall be named as an insured.
(f) Lessee shall further maintain an excess umbrella ($3,000,000.00) per
occurrence and which shall, but not be limited to, extend to cover the Marina Operators Legal
Liability and the Pollution/Environmental Impairment Liability coverages.
(g) The limits of coverage set forth in paragraphs (a), (b), (c), and (f) above may,
at Lessor's option, be adjusted at the beginning of the fifth Lease Year and every five years
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thereafter by any increase and/or decrease (which decrease shall not result in an amount less
than the amounts initially required as set forth above) in the Consumer Price Index from the
Possession Date to the anniversary date in which the adjustment is to be made. In addition, all
such policies shall contain no deductible unless the prior written consent of the City Manager
is obtained, which consent shall not be unreasonably withheld. Unless otherwise noted above,
all such policies shall name the Lessor as an Additional Insured.
(h) In the event that any other type of legislation may be enacted imposing special
liability upon the Lessor or the Lessee by virtue of its use for any special purposes, before the
Lessee shall so use the Subject Property and/or the Leasehold Improvements or any part of it,
the Lessee shall provide insurance in form and substance, and with insurers and limits
reasonably satisfactory to the Lessor and meeting commercial standards insuring the interests
of the Lessor and the Lessee and naming the Lessor as an Additional Insured.
(i) The Lessor ' reserves the right to reasonably amend the herein insurance
requirements by the issuance of a notice in writing to Lessee, which amended insurance
requirements shall be subject to the reasonable approval by Lessee.
Section 11.3. Delivery of Insurance Policies: All public liability, Workers
Compensation and employers liability policies shall be retained by the Lessee.
Except as otherwise specifically provided, all other policies of insurance required to be
furnished shall be held by the Lessee, with copies to be made available to Lessor upon request,
and shall be payable jointly to the Lessor, the Leasehold Mortgagee and the Lessee, as their
interest may appear, with the proceeds to be distributed in accordance with the terms of this
Lease. Insurance company certificates evidencing the existence of all policies of insurance
shall be delivered to the Lessor. All policies of insurance required to be provided and
obtained shall provide that they shall not be amended or canceled on less than Thirty (30) days
prior written notice to the Lessor and all insured and beneficiaries of the policies and shall
contain waiver of subrogation rights endorsements, as required below. The Lessor shall have
no obligation to pay premiums or make contributions to the insuring company or any other
Person or satisfy any deductible.
On or before the Possession Date and then not less than Fifteen (15) days prior to the
expiration date of any policy required to be carried pursuant to this Article, the Lessee- shall
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deliver to the Lessor and the holder of any Leasehold Mortgage the applicable respective
policies and insurance company certificates evidencing all policies of insurance and renewals
required to be furnished. Receipt of any documentation of insurance by the Lessor or by any
of its representatives which indicates less coverage than required does not constitute a waiver
of the Lessee's obligation to fulfill the insurance requirements herein.
The Parties acknowledge and agree that coastal properties are often precluded from
being insured by private insurers and that any casualty and windstorm insurance may have to
be written through the Florida Joint Underwriters Association and/or other governmental
insurance pool which may include certain prohibitions such as no replacement cost.
Section 11.4. Adjustment of Loss. Subject to the requirements of any Leasehold
Mortgagee, all Net Insurance Proceeds (as defined in Section 16.1) recovered on account of
any damage or destruction by any casualty shall be made available for the payment of the cost
of the repairs and restoration. All of the Net Insurance Proceeds plus the amount of any
deductible applicable to said damage or destruction shall be deposited by the insurance
company or by the Lessee (in the case of the deductible) in escrow with instructions to the
escrow holder that the escrow holder shall disburse the funds to the Lessee, with notice thereof
to the Lessor, as the work of repair and restoration progresses upon certificates of the architect
or engineer supervising the repair and restoration work that the disbursements then requested,
plus all previous disbursements made from such Net Insurance Proceeds, plus the amount of
any deductible, do not exceed the cost of the repairs or restoration work already completed
and paid for, and that the balance in the escrow fund is sufficient to pay for the reasonably
estimated cost of completing the required work of repair and restoration. The escrow holder
may be the lender holding the Leasehold Mortgage if such lender accepts said escrow;
otherwise the escrow holder shall be any bank mutually agreeable to Lessor and Lessee. If the
amount of the Net Insurance Proceeds is less than the cost of the required repairs or
restoration work, then Lessee shall pay the excess cost; and if the amount of the Net Insurance
Proceeds is greater than the cost of the required repairs and restoration work, then the excess
shall be paid to and belong to the Lessee.
Section 11.5. ' Insurer To Be Approved -Premium Receipts. All policies of insurance of
the character described in Sections 11.1 and 11.2 shall be written by companies authorized to
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do business in the State of Florida and of recognized solvency and responsibility reasonably
acceptable to the Lessor. On request by the Lessor, the Lessee shall provide photocopies of
receipts showing the payment of premium for all insurance policies required to be maintained
by this Lease Agreement.
Section 11.6. Waiver of Subrogation. Lessee waives all rights to recover against the
Lessor for any damage arising from any cause covered by any insurance required to be carried
by Lessee, or any insurance actually carried by Lessee. The Lessee shall cause its insurer(s)
to issue appropriate waiver of subrogation rights endorsements to all policies of insurance
carried in connection with the Subject Property. Lessee will cause all Subtenants to execute
and deliver to .Lessor a waiver of claims similar to the waiver in this paragraph and to obtain
such waiver of subrogation rights endorsements.
ARTICLE XII
RECORDS AND AUDITING
Section 12.1. Records of Sales. During the Lease Term, Lessee shall maintain and
keep, or cause to be maintained and kept at the Subject Property, a full, complete and accurate
record and account of all Gross Revenue arising or accruing by virtue of the operations
conducted at or from the Subject Property, for each day of the Lease Term, subject to Lessor's
approval. At all times during the Lease Term, upon providing Two (2) business days prior
written notice to Lessee or such additional time as may be reasonably necessary, all records
and accounts and all other supporting records, shall be available for inspection and audit by
the Lessor and its duly authorized agents or representatives during the hours of 8:00 AM to
5:00 PM, Monday through Friday, and shall be in accordance with generally accepted
accounting principles and practices. Lessee must provide point of sale machines or such other
cash registers or accounting control equipment deemed reasonably necessary for proper
control of receipts whether such transaction is a cash or credit transaction. Lessee shall keep
and preserve, or cause to be kept and preserved, said records for not less than Thirty Six (36)
months after the payment of the Percentage Rent due under the terms hereof. For the same
period of time, Lessee shall also retain copies of all sales and tax returns covering its
operations at the Subject Property, and any other governmental tax or other returns which
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show Lessee's sales therein, and shall, upon demand, deliver photographic copies or computer
disks thereof to the Lessor. The Lessee will cooperate with the Lessor's internal auditors (or
such other auditors designated by Lessor) in order to facilitate the Lessor's examination of
records and accounts.
Section 12.2. Audit. Lessee shall deliver or cause to be delivered within Ninety (90)
days after the end of each Lease Year, to Lessor's Division of Asset Management, located at
444 SW 2 Avenue, Suite 325, Miami, FL 33130, a Gross Revenue report for the prior Lease
Year, prepared and certified by an independent certified public accountant ("CPA") employed
at Lessee's sole cost and expense. Said CPA shall certify that he made a complete
examination of the books, state sales tax returns, and federal income tax returns of Lessee and
that such report is. prepared in accordance with generally accepted accounting principles and
practices and represents the Gross Revenue of the Lessee and its Subtenants for the period
indicated therein. Within Thirty (30) days of the delivery of each Gross Revenue report,
Lessee shall pay to Lessor any unpaid balance of the Rent or underpayment of Percentage
Rent, if any, and Lessor shall credit any overpayments, if any, towards the next payment of
Rent due. In the event the Lessee fails to prepare or deliver the required Audited Gross
Revenue Report to the Lessor within the time set forth above, the Lessor, upon Fifteen (15)
days written notice to Lessee may elect to exercise either or both of the following remedies:
a) To. treat, as a default of this Lease, any such omission continuing after Thirty
(30) days written notice to Lessee; and/or
b) To cause an audit and/or accounting, pursuant to the provisions of this Lease to
be made at the sole cost and expense of Lessee. Lessee shall pay the full reasonable cost of
such audit within Thirty (30) days of receipt of an invoice indicating the cost of such audit.
Notwithstanding the above, at its option, Lessor may cause, at its sole cost and
expense, at any time within Thirty Six (36) months of receipt of any Percentage Rent statement
furnished by Lessee, and upon providing Fifteen (15) business days written notice to Lessee, a
complete audit to be made of Lessee and its Subtenants' accounting records related to Gross
Revenue for the period covered by any such statement furnished by Lessee. If such audit shall
disclose an underpayment of Rent, Lessee shall pay Lessor any unpaid balance within Thirty
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(30) days of receipt of notice from Lessor that such balance is due. If such audit shall disclose
an overpayment, Lessor shall credit such overpayment towards the next payment of Rent due.
Lessee shall allow the Lessor or the auditors of the Lessor to inspect all or any part of
the compilation procedures for the aforesaid monthly reports. Said inspection shall be
reasonable and is at the sole discretion of the Lessor.
The acceptance by Lessor of payments of Percentage Rent shall be without prejudice to
Lessor's right to conduct an examination of Lessee's books and records of its Gross Revenue
and inventories of merchandise on the Lease Property in order to verify the amount of annual
Gross Revenue derived by Lessee in and from the Subject Property. Lessor shall not re-
examine an accounting period which has. previously been audited, unless it has reasonable
cause, and may not go back further than Thirty Six (36) months from the receipt of Percentage
Rent.
ARTICLE XIII
USE OF THE SUBJECT PROPERTY AND LEASEHOLD IMPROVEMENTS
Section 13.1. Limited Representations by Lessor.
(a) Lessor makes the following representations, covenants and warranties which
shall survive the execution of this Lease and the taking of possession of the Subject Property
by the Lessee:
(i) The Lessor does not know_ of any latent or hidden defects affecting the
Subject Property or the uses contemplated by this Lease;
(ii) The Lessor does not know of any surface, ground or underground
environmental waste or contamination or storage thereof or of Hazardous Materials or of an
Environmental Condition or any violation of any "Environmental Laws" (as such term is
defined in Section 20.1(b) of this Lease), except as provided for in Florida Department of
Environmental Protection correspondence dated November 30, 1993 and February 8, 1995,
attached as Exhibit F.
(iii) That Lessor has taken all requisite actions to make this Agreement
binding upon the Lessor, and the Lessor is indefeasibly seized of marketable, fee simple title
to the Subject Property, and is the sole owner of and has good right, title and authority. to
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convey and transfer all property, rights and benefits which are the subject matter of this
Agreement, free and clear of all liens and encumbrances; and there are no other liens or claims
on or affecting the Subject Property;
(iv) There is no condemnation, environmental, zoning or other land -use
regulation proceedings, which would detrimentally affect the use and operation of the Subject
Property as contemplated by this Lease Agreement and the Proposal;
(v) That no party except Lessee shall, on the Possession Date, be in or have
any right to possession of the Subject Property.
(vi) That as of the Lease Date, the Subject Property has been exempt from
all ad valorem real property taxes and therefore no tax is due for the year 1997 and all prior
years;
(vii) That there is, and during the Lease Term, Lessor shall provide perpetual
legal and physical ingress and egress to the Subject Property from a paved public street for
vehicular traffic and perpetual legal and physical ingress and egress for pedestrian traffic.
(viii) That there are no existing or pending special assessments or fees
affecting the Subject Property;
(ix) That the Subject Property may be used and operated as set forth in this
Lease, without any further City, County and State approvals with regard to Platting and
Zoning (except for the Special Exception Permit). Furthermore, the Subject Property is either
exempt from zoning and platting and/or meets all zoning and platting requirements of all
applicable government agencies except as provided above, so that the Subject Property may be
used and operated as set forth in this Lease and the Proposal; and
(ix) That Lessor has applied for and received a Binding Letter of
Interpretation of Vested Rights ("BLIVR") from the Florida Department of Community of
Affairs, attached hereto as Exhibit G, finding that Fifty Five (55) wet slips and Forty (40) dry
slips are vested from Development of Regional Impact (DRI) review, as defined by F.S.
380.06.
(x) All of the representations and warranties of Lessor contained in this
Lease Agreement shall continue to be true as of the Possession Date and said representations
and warranties shall be deemed to be restated and affirmed by Lessor as of the Possession Date
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• a
without the necessity of Lessor's execution of any document with regard thereto, and the
Lessor's liability (except with respect to the environmental condition of the Subject Property
which is expressly addressed. in Article XX of this Lease) therefor shall survive the signing of
this Lease Agreement. Lessee shall have no duty to investigate or inquire (except with respect
to the environmental condition of the Subject Property which is expressly addressed in Article
XX of this Lease) regarding the accuracy or veracity of any representation or warranty of
Lessor, and it shall be deemed reasonable for Lessee to fully rely upon same. Should any of
the representations and warranties prove to be incorrect, it shall be Lessor's obligation to cure
those warranties and representations which are set forth herein forthwith at Lessor's expense.
Section 13.2. Lessee's Representations. The Lessee acknowledges that it has
examined the Subject Property (except for hidden or latent defects and environmental matters)
and knows the physical condition of it, and subject to the provisions of Sections 13.1(a), (b)
and (c) above and Article XX herein, and will accept the Subject Property in its present
condition and without any additional representations or warranties of any kind or nature
whatsoever by the Lessor as to its physical condition. The Lessee assumes the sole
responsibility for the condition of the present improvements and other structures located on
the Subject Property in order that Lessee may construct, restore, operate, maintain and manage
the Leasehold Improvements upon the Subject Property; and the Lessor shall not be required at
any time to make any repairs, replacements, changes. (structural or otherwise), additions or
alterations to the Subject Property, the Leasehold Improvements and/or any other property of
any kind demised by this Lease.
Section 13.3. The Leasehold Improvements to be Open to Public. Lessee covenants
that the Leasehold Improvements which are not restricted to Lessee's business uses shall be
open to the general public without discrimination upon payment of such charges as may be
charged by Lessee in it sole discretion. Lessee shall at all times during the Lease Term
continuously operate Lessee's business on the Subject Property in a fiscally sound manner so
as to maximize the Gross Revenue produced by the Project. Lessee will carry on its business
diligently at the Subject Property through the Lease Term and will keep the Subject Property
open for business on a continual basis during the usual days and hours for such business as are .
customary for this type of use.
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Section 13.4. Compliance with Laws. The Lessee and Lessor shall throughout the
Lease Term comply with all Applicable Laws as the same may be amended, replaced,
supplemented or superseded from time to time, and any and all requirement of public liability,
fire and other policies of insurance which may be applicable to its operations, activities, rights,
and obligations under this Lease, and the Leasehold Improvements. The foregoing shall not
impose any of the costs or expenses of the Lessee upon the Lessor, such as but not limited to
insurance expenses; nor shall the foregoing be construed to impose upon the Lessee any of the
Lessor's costs or expenses- in complying with Applicable Laws.
Section 13.5. Right to Contest Compliance. The Lessee shall have the right to contest
by appropriate legal proceeding, without cost or expense to the Lessor, the validity of any
Applicable Law of the nature referred to, and if by the terms of any Applicable Law
compliance may legally be held in abeyance without the incidence of any lien, charge or
liability of any kind against the title to the Subject Property, the Lessee's Leasehold Estate and
without subjecting the Lessee or the Lessor to any liability of whatsoever nature for failure so
to comply, the Lessee may postpone compliance until the final determination of any
proceedings, provided that all proceedings shall be prosecuted with all due diligence and
dispatch.
Section 13.6. Use of the Subject Property. During the Lease Term, Lessee shall use
the Subject Property for the uses permitted by this Lease, and develop, and continuously
operate and manage, the Leasehold Improvements so as to address the needs of the local
marine community and marine patrons; contribute to the economic prosperity of the
community; promote the unique culture and history of Miami and South Florida and offer an
outstanding commercial and recreational facility to local residents and visitors. Lessor agrees
to cooperate with and assist Lessee in achieving the. foregoing.
Section 13.7. Parking and Circulation. Lessee shall be required to design and provide
parking in sufficient quantity to service all primary and secondary uses included on the Subject
Property and in compliance with applicable zoning requirements. Such required parking, and
all utility, loading and/or service areas shall be organized, appropriately landscaped and
bermed or screened from surrounding areas and streets. Additionally, Lessee shall also design
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a compatible, safe and effective pedestrian and vehicular circulation to service the Leasehold
Improvements and the Public Amenities.
Upon receipt of a certificate of occupancy for the initial Leasehold Improvements,
Lessee shall be deemed to have complied with the requirements of this Section 13.7 for the
Leasehold Improvements contemplated by this Lease, provided that Lessee shall thereafter
maintain and keep in good condition and repair the parking and access facilities on the Subject
Property.
ARTICLE XIV
REPAIRS, MAINTENANCE AND IMPROVEMENTS
Section 14.1. Repair of The Leasehold Improvements. The Lessee shall throughout
the Lease Term, at the Lessee's sole cost and expense, maintain in good, clean and orderly
condition and repair the Subject Property and the Leasehold Improvements. The Lessee shall,
at Lessee's sole cost and expense, promptly make to the Leasehold Improvements all necessary
repairs, ienewals and replacements, interior and exterior, structural and nonstructural, whether
made necessary or caused by fire or other casualty, or by ordinary wear and tear. All repairs,
renewals and replacements shall be of good quality sufficient for the proper maintenance and
operation of the Leasehold Improvements and shall be constructed and installed in compliance
with all legal requirements of all governmental authorities having jurisdiction. The Lessee
shall not permit the accumulation of waste or refuse matter, nor permit anything to be done
upon the Subject Property or the Leasehold Improvements which would invalidate or prevent
the procurement of all insurance policies which may at any time be required pursuant to the
provisions of Article XI. All proceeds of insurance on account of any loss or damage shall, to
the extent required, be applied on the cost of any repairs, renewals and replacements as
provided for in this Article XIV. Nothing contained in this Lease shall impose on the Lessor
the obligation to make any repairs or expend any monies for the maintenance of the Subject
Property, or the renewal, replacement or repair of the Leasehold Improvements.
Section 14.2. Alteration of Exterior Improvements. The following provision does not
apply to City Property. Lessor's consent shall not be required as to any non-structural
alteration, addition or change in the. Leasehold exterior improvements, nor to any structural
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alteration, addition or change involving a cost of less than One Hundred Thousand ($100,000)
Dollars [to be adjusted every Three (3) years, commencing on the first day of the first Lease
Year, based upon increases or decreases (which decrease shall not result in an amount less
than One Hundred Thousand ($100,000) Dollars) in the Consumer Price Index, calculated
from the Possession Date to the anniversary of the Possession Date on the year in which the
adjustment is calculated], unless such non-structural alteration, addition, or change in the
Leasehold Improvements will substantially affect the character and/or the aesthetic appearance
of the Project. The Lessee shall not make or permit to be made any structural alteration of,
addition to, or change in, the Leasehold Improvements, involving a cost in excess of One
Hundred Thousand ($100,000) Dollars [to be adjusted every Three (3) years, commencing on
the first day of the first Lease Year, based upon increases or decreases (which decrease shall
not result in an amount less than One Hundred Thousand ($100,000) Dollars) in the
Consumer Price Index, calculated from the Possession Date to the anniversary of the
Possession Date on the year in which the adjustment is calculated], without the prior written
consent of the Lessor, which consent shall not be unreasonably withheld or delayed.
Regardless of the cost, Lessee shall not make or permit any demolition of the structural
Leasehold Improvements, without the prior written consent of the Lessor, which consent shall
not be unreasonably withheld or delayed. The Lessee shall submit to the Lessor detailed
Construction Documents and specifications of the proposed work, an explanation of the needs
and reasons for it, and a plan of full payment of the costs of it and the Lessor shall notify the
Lessee of its approval or objections, as the case may be, as promptly as possible after
receiving the information, but not exceeding Thirty (30) days from receipt by Lessor of such
information. Failure of the Lessor to deliver written objection to Lessee within such Thirty
(30) day period shall conclusively constitute Lessor's consent to the proposed work.
Section 14.3. Alteration of City Property. Lessor's prior, written consent shall be
required as to any alteration, addition or change to City Property. The Lessee shall submit to
the Lessor detailed Construction Documents and specifications of the proposed work, an
explanation of the needs and reasons for it, and a plan of full payment of the costs of it and the
Lessor shall notify the Lessee of its approval or objections, as the case may be, within Thirty
(30) days from receipt by Lessor of such information. Any approved alteration, addition or
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change to City Property shall be at Lessee's sole cost and expense. Any alteration, addition or
change to Historic City Property shall be in conformance with provisions set forth in Section
7.4 herein.
ARTICLE XV
LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS;
REIMBURSEMENT OF LESSOR FOR AMOUNTS SO EXPENDED
Section 15.1. Performance of Lessee's Covenants to Pay Money. The Lessee
covenants that if it shall at any time default in the payment of any Impositions pursuant to the
provisions of Article X, or shall fail to make any other payment (other than Rent) due and the
failure shall continue for Fifteen (15) days after written notice by Lessor to the Lessee,
("Notice of Non -Payment of Imposition") then the Lessor may, but shall not be obligated so to
do, and without farthet notice to or demand upon the Lessee and without waiving or releasing
the Lessee from any obligations of the Lessee in this Lease contained, pay any Imposition,
effect any insurance coverage and pay premiums for it, or make any other payment which
Lessee has improperly failed to pay as set forth in the Notice of Non -Payment of Imposition.
Section 15.2. Lessor's Right to Cure Lessee's Default. Notwithstanding anything
herein to the contrary as set forth in Article XVII or under this Lease, if there shall be an
Event of Lessee's Default involving the failure of the Lessee to keep the Leasehold
Improvements in good condition and repair in accordance with the provisions of this Lease, to
make any necessary renewals or replacements, or to remove any dangerous condition in
accordance with the requirements of this Lease which would constitute an immediate threat to
the health, safety and welfare of the public and/or the environment, then the Lessor may
proceed with any permissible action in a Court of Law having jurisdiction, but Lessor shall not
have the right, to make good any such alleged Event of Lessee's Default.
Section 15.3. Reimbursement of Lessor and Lessee. All sums advanced by the Lessor
pursuant to the provisions of Section 15.1, and all necessary and incidental costs, expenses
and attorneys fees in connection with the performance of any acts, together with interest at the
Prime Interest Rate per annum from the date of the making of advancements, shall be deemed
additional Rent, and shall be promptly payable by the Lessee, in the respective amounts so
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•
advanced, to the Lessor. This reimbursement shall be made on demand, or, at the option of
the Lessor, may be added to any Rent then due or becoming due under this Lease, and the
Lessee covenants to pay the sum or sums with interest.
ARTICLE XVI
DAMAGE OR DESTRUCTION
Section 16.1. Definitions. For the purposes of this Article XVI, the following words
shall have the meanings attributed to them in this Section 16.1:
(a) "Completely Destroyed" means the destruction of the safe, tenantable
use or occupancy of a substantial portion of the Leasehold Improvements
under this Lease which damage cannot reasonably be repaired, restored
or replaced within One Hundred and Eighty (180) calendar days from
the date on which the damage occurred.
(b) "Partial Destruction" means any damage to the Leasehold Improvements
which damage can reasonably be repaired; restored or replaced within
One Hundred Eighty (180) calendar days from the date on which the
damage occurred.
(c) "Net Insurance Proceeds" means the actual amount of insurance
proceeds paid following an insured casualty to the Leasehold
Improvements less all costs and expenses including reasonable attorneys'
fees incurred by the Lessee and/or Lessor with respect to the collection
thereof.
Section 16.2. Lessee's Duty to Repair, Restore or Replace the Leasehold
Improvements After Damage. In the event of damage by fire or otherwise of the Leasehold
Improvements including any machinery, fixtures or equipment which are a part of the
Leasehold Improvements located on the Subject Property, the Parties agree as follows:
(i) In the event of Partial Destruction, within Sixty (60) calendar days. of the
damage (subject to reasonable and/or Unavoidable Delay), the Lessee shall use the Net
Insurance Proceeds available for that purpose, together with Lessee's own funds (if the Net
Insurance Proceeds are insufficient) to commence and diligently pursue to completion within
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One Hundred Eighty (180) calendar days from the date the damage occurred (subject to
reasonable extension and/or Unavoidable Delay), the repair, restoration or replacement of the
damaged or destroyed Leasehold Improvements (the "Restoration Work"), and this Lease shall
remain in full force and effect, with no abatement in Rent.
(ii) In the event the Leasehold Improvements are Completely Destroyed at any time
during Lease Years One (1) through Thirty Five (35) of the Lease Term, within Sixty (60)
days of the damage, the Lessee, in its sole discretion, shall have the option (a) at the Lessee's
sole cost and expense, (but using along with the Lessee's own funds and Net Insurance
Proceeds available for that purpose), to commence and diligently pursue to completion the
Restoration Work, in accordance with the provisions of Section 16.3 below, and Lessee shall
complete the Restoration Work within Eighteen (18) months from the date the damage
occurred and this Lease shall remain in full force and effect, with no abatement in Rent or (b)
to elect not to undertake the Restoration Work by providing written notice to Lessor and in
which event this Lease shall terminate, and the Lessee shall at the Lessee's sole cost and
expense, (but using along with the Lessee's own funds, Net Insurance Proceeds available for
that purpose) deliver possession of the Subject Property to Lessor free and clear of all debris
and Lessor and Lessee shall each be released thereby from any further obligations hereunder
accruing after the effective date of such termination, except that such release shall not apply
(aa) to any sums accrued or due (bb) Lessee's obligations regarding surrender of the Subject
Property including the removal of debris, and (cc) environmental liability as provided for in
Article XX.
(iii) In the event the Leasehold Improvements are Completely Destroyed at any time
during Lease Years Thirty Six (36) through Forty (40), Lessor, in it sole discretion, shall have
the right to terminate this Lease Agreement by giving written notice to Lessee within ninety
(90) days from the date the damage occurred.
Section 16.1. Performance of Restoration Work. In the event Lessee undertakes any
Restoration Work in accordance with the provisions of this Article, such Restoration Work by
Lessee shall be substantially as possible to the condition that existed immediately prior to the
damage, and shall be performed in accordance with the provisions of Article IV applicable to
the construction of the initial Leasehold Improvements and City Property, Section 7.4
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applicable to .the alteration, addition or change to City Historic Property. Lessor hereby
acknowledges and agrees that Lessee's obligations hereunder and the time periods set forth
above are subject to Unavoidable Delay, and reasonable extensions based on the severity of the
damage,
Section 16.4. No Right to Terminate. Except for the Lessee's right to terminate this
Lease Agreement in accordance with the provisions of Section 16.2(ii).(b), Lessee waives the
provisions of any statute, code or judicial decision which grants Lessee the right to terminate
this Lease in the event of damage or destruction of the Subject Property.
Section 16.5. Lessee's Right to Terminate. If Lessee or Lessor elect to exercise the
option given under Section 16.2(ii) or Section 16.2(iii), respectively, to terminate this then any
and all Net Insurance Proceeds paid for damage or destruction of the Leasehold Improvements
shall be applied as follows:
(i) First toward the reduction of the unpaid principal balance of any and all
obligations secured by a Leasehold Mortgage;
(ii) Second toward cost for debris removal; and
(ii) The balance of the proceeds, if any, after payment of any Rent due, shall
be paid to the Parties as their respective interests may then appear.
Section 16.6. Payment for Construction of the Restoration Work. Subject to any
requirements of a Leasehold Mortgagee, all Net Insurance Proceeds shall be applied by the
Parties to the payment of the cost of the Restoration Work (pursuant to this Article and Section
11.4) to restore the Leasehold Improvements. The Net Insurance Proceeds shall be paid out,
the Restoration Work shall be performed, and the Lessee shall make additional deposits with
an escrow agent, if any are required, all in accordance with Section 11.4, as may be
applicable.
Section 16.7. Collection of Insurance Proceeds. The Lessor shall in no event be
responsible for the non -collection of any insurance proceeds under this Lease Agreement but
only for insurance money that shall come into its hands.
Section 16.8. Unused Insurance Proceeds and Deposits. In the event any Net
Insurance Proceeds or sums deposited with an escrow agent or Lessor in connection with the
Restoration Work shall remain in the hands of an escrow agent or the Lessor, if the Parties
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have agreed to allow the Lessor to hold the insurance proceeds until completion of the
Restoration Work, and if the Lessee shall not then be in default under this Lease Agreement in
respect of any matter or thing of which notice of default has been served on the Lessee, then
the remaining funds shall be applied first towards any unpaid Rent, and the balance paid to the
Lessee.
ARTICLE XVII
ARBITRATION
Section 17.1. Arbitration. A panel of arbitrators ("Arbitration Panel") shall be
established to resolve any controversy, dispute or breach, arising out of or relating to this
Lease, (excluding any controversy, dispute, breach or Event of Lessee's Default with respect
to the payment of Minimum Annual Rent or Percentage Rent), including but not limited to:
a) Non -monetary disputes including alleged defaults of Lessor or Lessee.
b) Whenever the term "reasonable" applies to Lessor or Lessee's actions either to be
taken or taken.
c) Wherever under the Lease an approval is required which." shall not be unreasonably
withheld or delayed".
d) Monetary disputes other than the payment of Minimum Annual Rent or Percentage
Rent.
e) Disputes concerning: (i) whether or not a default as described in Section 26.1(b)
has occurred (ii) whether or not a default as described in Section 26.1(b) can or
cannot be cured within Thirty (30) days, and/or (iii) whether or not the Lessee or
any person holding by, through or under the Lessee, (in the event of a default
which can not be cured within Thirty (30) days) has in good faith and promptly
commenced and continued to diligently and reasonably prosecute all action
necessary to cure the default.
The Parties agree that in the event that Lessor has commenced an action in court with
respect to an Event of Lessee's Default pertaining to the payment of Minimum Annual Rent
and/or Percentage Rent, notwithstanding anything herein to the contrary, the Lessee may
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counterclaim and/or litigate any matter in court which is related to or arising out of Lessor's
action.
Section 17.2 Procedures. These procedures will govern any arbitration according to
this Lease.
a) Arbitration will be commenced by: (i) a written demand made by the City Manager
on behalf of the Lessor or a written demand made by the Lessee containing a statement of the
question to be arbitrated and the name and address of its arbitrator, if available; (ii) a written
demand made by the City Manager on behalf of the Lessor at any time after an alleged Event
of Lessee's Default (as described in Section 26.1(b)) specifying the default and the name and
address of its arbitrator, if available, or a written demand made by the Lessee specifying the
default and the name and address of its arbitrator, if available, at any time after an alleged
Event of Lessor's Default (as described in Section 26.5(a)).
b) Within Ten'(10) days after its receipt of the written demand the other Party will
give the demandant written notice of the name and address of its. arbitrator. Within Ten (10)
days after the appointment of the two arbitrators, the two arbitrators shall meet and appoint a
third arbitrator which shall constitute the Arbitration Panel.
c) Every member of the Arbitration Panel must be a member of the American
Arbitration Association (hereinafter referred to as a "Member"). In addition to the foregoing
criterion, each Member shall satisfy the following conditions: (i) no Member shall be a person
who is or has been an employee of either the Lessor or Lessee during the Five (5) year period
immediately preceding his or her appointment; (ii) each Member shall be neutral and
independent of the Parties to this Lease; (iii) no Member shall be affiliated with either Parties'
auditors; and (iv) no Member shall have a conflict of interest with (including, without
limitation, any bias towards or against) a Party hereto.
d) If either party shall fail to designate a Member within Ten (10) days after receipt of
the written demand, then such other party may request the President of the Florida Chapter of
the American Arbitration Association to designate a Member, who, when so designated, shall
act in the same manner as if he had been the Member designated by the party so failing to
designate an arbitrator.
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e) If the two Members appointed by the Parties are unable to agree upon the third
Member within Ten (10) days from the last date of designation, then upon the request of either
of the Two (2). Members, or either Party, such third Member shall be designated by the
President of the Florida Chapter of the American Arbitration Association,' who shall appoint
such third Member within Ten (10) days of the request.
f) A hearing shall be commenced within Thirty (30) days following the selection of
the Arbitration Panel. The Parties shall each make a good faith effort to cooperate with each .
other in all respects in connection with the exchange of documents relevant to the subject
dispute. A court reporter shall make a transcript of the hearing. The Parties and the
Arbitration Panel shall use their best efforts to conclude the hearing within Ten (10) days.
The Parties shall be entitled to such pre-trial discovery as they may agree, or as determined by
the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the
hearing, but not to call witnesses. The Arbitration Panel may grant continuances only by the
agreement of both Parties. The Arbitration Panel may render a decision at the close of the
hearing, or may request briefs on any or all issues. Any and all such briefs, including reply
briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in
any event no later Forty Five (45) days following the commencement of the hearing. The
Arbitration Panel shall render a determination within Thirty (30) days from the conclusion of
the hearing, and in the event briefs are submitted, within Thirty (30) days after receipt of said
briefs. If no determination is rendered within such time, unless the parties agree otherwise, a
new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall
render a determination solely upon review of the record of the hearing without a further
hearing.
g) All actions, hearings and decisions of the Arbitration Panel shall be conducted,
based upon and in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. In all controversies, disputes or claims with respect to the value of
the real property for purposes of establishing the City Payment in Lieu of Taxes referred to
Arbitration under the provisions of this Lease Agreement, the Arbitration shall be conducted
in accordance with the Real Estate Valuation Rules of the American Arbitration Association.
In determining any matter before them, the Arbitration Panel shall apply the terms of this
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Lease Agreement, and shall not have the power to vary, modify or reform any terms or
provisions of the Lease Agreement in any respect. No Arbitrator is authorized to make an
award of punitive or exemplary damages. The Arbitration Panel shall afford a hearing to the
Lessor and to the Lessee who shall each have the right to be represented by counsel at, such
hearing and to call witnesses, and the right to submit evidence with the privilege of cross-
examination on the question at issue. All arbitration hearings shall be held at a place
designated by the Arbitration Panel in Dade County, Florida.
h) The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics
for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association
and the American Bar Association,, or any successor code. The decision of a majority with
respect to any matter referred to it under this Lease shall be final, binding and conclusive on
the City and Lessee and enforceable in any court of competent jurisdiction. Together with the
determination, the Arbitration Panel shall provide a written explanation of the basis for the
"determination. Each party shall pay the fees and expenses of the Member of the Arbitration
Panel designated by such party, such party's counsel and witness fees, and one-half ('/2) of all
expenses of the third Member of the Arbitration Panel. The decision of the Arbitration Panel
will be final and may be enforced according to the laws of the State of Florida and judgment
upon the award rendered by the Arbitration Panel shall be entered in any Court having
jurisdiction thereof.
ARTICLE XVIII
MECHANICS LIENS
Section 18.1. Discharge of Mechanics Liens. The Lessee shall not suffer or permit
any mechanics liens to be filed against the title to the Subject Property, nor against the
Lessee's Leasehold Estate, nor against the Leasehold Improvements or by reason of the Work,
labor, services or materials supplied or claimed to have been supplied to the Lessee or any
Subtenant. Lessee shall obtain releases or waivers of the contractor, subcontractors and any
other persons furnishing work and materials discharging all liens and claims for all Work and
materials furnished .and similar releases from the architect or other recipient in the case of
payments out of the funds to the architect or other recipient.
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Nothing in this Lease Agreement shall be construed as constituting the consent or
request of the Lessor, expressed or implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the furnishing of
any materials for any specific improvement, alteration or repair of or to the Subject Property
or the Leasehold Improvements. If any mechanics lien shall at any time be filed against the
Subject Property including the Leasehold Improvements, the Lessee shall cause it to be
discharged of record or transferred to bond or contested within Thirty (30) days or such
additional time as reasonably necessary after the date the Lessee has knowledge of its filing.
If the Lessee shall fail to discharge or transfer to bond or contest a mechanics lien within that
period, then in addition to any other right or remedy, the Lessor may, but shall not be
obligated to, discharge the lien either by paying the amount claimed to be due or by procuring
the discharge of the lien by deposit in court or bonding, or in the event the Lessor shall be
entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the
mechanics lien by the Lienor and to pay the amount of the judgment, if any, in favor of the
lienor with interest, costs and allowances with the understanding that all amounts paid by the
Lessor shall constitute additional Rent due and payable under this Lease Agreement and shall
be repaid to the Lessor by the Lessee immediately upon rendition of an invoice or bill by the
Lessor. TheLessee Lessee shall not be required to pay or discharge any mechanics lien so long as
the Lessee shall in good faith proceed to contest the lien by appropriate proceedings and if the
Lessee shall have given notice in writing to the Lessor of its intention to contest the validity of
the lien and upon request of Lessor, if necessary to protect Lessor's fee simple interest, shall
furnish and keep in. effect a surety bond of a responsible and substantial surety company
reasonably acceptable to Lessor or other security reasonably satisfactory to Lessor in an
amount sufficient to pay one hundred ten percent of the amount of the contested lien claim
with all interest on it and costs and expenses, including reasonable attorneys fees, to be
incurred in connection with it.
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ARTICLE XIX
COVENANT AGAINST WASTE AND INSPECTION
Section 19.1. Waste. Except as otherwise permitted by this Lease Agreement, the
Lessee covenants not to do or suffer any demolition, waste or damage, disfigurement or injury
to the Subject Property or the Leasehold Improvements or any part of it. The provisions of
this Section 19.1 shall not apply to any demolition or disfigurement involved with repairs,
renovations, upgrading or new construction.
Section 19.2. Inspection of Subject Property. Lessor, its agents, employees and
authorized representatives may enter the Subject Property at any time in response to an
emergency, and upon reasonable prior notice at reasonable times during business hours as
Lessor deems necessary to, incident to, or connected with the performance of Lessor's duties
and obligations hereunder or in the exercise of its rights and functions.
ARTICLE XX
ENVIRONMENTAL LIABILITY
Section 20.1. Definition of Terms. For purposes of this Article XX, the following
terms shall have the meaning attributed to them in this Section 20.1:
20.1.1 "Hazardous Materials" means any toxic or hazardous substance, material, or
waste, and any other contaminant, pollutant or constituent thereof, whether liquid, solid, semi-
solid, sludge and/or gaseous, including without limitation, chemicals, compounds; pesticides,
petroleum products including crude oil and any fraction thereof, asbestos containing materials
or other similar substances or materials which are regulated or controlled by, under or
pursuant to any federal, state or local statutes, laws, ordinances, codes, rules, regulations,
orders or decrees, not limited to, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980; as amended by the Superfund Amendment and Reauthorization Act
of 1986 ("SARA"), 42 U.S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 ("RCRA") and subsequent Hazardous and Solid Waste Amendments of 1984, also
known as the 1984 "RCRA" amendments, 42 U.S.C. §6901 et seq.; the Hazardous Material
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Transportation Act, 49 U.S.C. §1801, et seq.; the Clean Water Act, as amended, 33 U.S.C.
§1311, et seq:; the Clean Air Act, as amended, 42 U.S.C. §7401-7642; Toxic .Substance
Control Act, as amended, 15 U.S.C. §2601 et seq.; the Federal Insecticide, Fungicide, and
Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y; the Emergency Planning and
Community Right -to -Know Act of 1986 ("EPCRTKA" or "EPCRA"), as amended, 42 U.S.C.
§ 11001, et seq. (Title III of SARA); the Occupational Safety and Health Act of 1970
("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute, including without
limitation, and by way of example, Chapters 376 or 403, Florida Statutes, as amended; or in
the regulations implementing such statutes, or which has been or shall be determined at any
time by any agency or the courtto be a hazardous or toxic substance regulated under any other
Environmental Laws; or any substance or material that is or becomes regulated by any federal,
state, or local governmental authority.
20.1.2 "Environmental Laws" shall include, but shall not be limited to, . the
Comprehensive Environmental Response, Compensation ,and Liability Act of 1980, as
amended by the Superfund Amendment and Reauthorization Act of 1986 ("SARA"), 42
U.S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and subsequent
Hazardous and Solid Waste Amendments of 1984, also known as the 1984 "RCRA"
amendments, 42 U.S.C. §6901 et seq.; the Hazardous Material Transportation Act, 49
U.S.C. §1801, et seq.; the Clean Water Act, as amended, 33 U.S.C. §1311, et seq.; the
Clean Air Act, as amended, 15 U.S.C. §2601 et seq.; the Federal Insecticide, Fungicide, and
Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y; the Emergency Planning and
Community Right -to -Know Act of 1986 ("EPCRTKA" or "EPCRA"), as amended, 42 U.S.C.
§11001, et seq. (Title III of SARA); the Occupational Safety and Health Act of 1970
("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute, including without
limitation Chapters 252,255,376,403,442, Florida Statutes, as amended; and the regulations
promulgated thereunder, and any other local laws or regulations, including, but not limited to
Chapter 24, Environmental Protection, of the Code of Metropolitan Dade County, Florida, as
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all of the foregoing may be amended, modified, supplemented, superseded or replaced at any
time during the Term, that govern or relate to:
(i) The existence, cleanup and/or remedy of contamination of property;
(ii) The protection of the environment from spilled, deposited or otherwise
emplaced contamination;
(iii) The control of hazardous or toxic substances or wastes; or
(iv) The use, generation, discharge, transportation, treatment, removal or
recovery of Hazardous Materials.
20.1.3. "Environmental Activity" shall mean any activity on the Subject
Property which involves the handling, .use, or disposal of Hazardous Materials or which is
subject to regulation under any Environmental Law.
20.1.4. "Environmental" Record shall mean any document, correspondence,
report, assessment, analytical result, governmental approval, or other record concerning any
Hazardous Materials, in compliance with Environmental Laws, Environmental Activity or any
other environmental matter pertaining to the Subject Property.
20.1.5. "Costs" shall mean all costs incurred by Lessor or Lessee in connection
with correcting any violations of any Environmental Laws and/or in conducting any clean-up
work with respect to any Hazardous Materials or any Environmental Condition at the Subject
Property.
Section 20.2. Lessee Inspection.
(a) Prior to Lessee commencing its review and environmental inspection of the
Subject Property (the "Audit") through Lessee's environmental consultant (the "Consultant"),
Lessor shall provide Lessee with Lessor's complete Environmental Record of the Subject
Property for Lessee's and Consultant's review.
Thereafter, Lessee at its sole cost and expense shall have the right to conduct the
Audit. If the Audit reveals (i) any violations of any Environmental Laws with respect to any
Hazardous Material present or any Environmental Activity conducted or permitted at the
Subject Property; (ii) any present or contingent liability which may attach or be attributed to a
prior owner, lessee, sublessee or operator of the Lessor of the Subject Property; or (iii) any
significant risk to the health or safety of occupants of the Subject Property arising form any
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Hazardous Materials present or Environmental Activity conducted or permitted at the Subject
Property (the foregoing conditions are hereinafter referred to as "Environmental Conditions"),
then Lessee shall deliver to Lessor a notice (the "Audit Notice") of each Environmental
Condition affecting the Subject Property, together with a copy of the Audit Report and an
estimate of the cost and time period necessary to remedy any such Environmental Condition.
(i) In the event Lessee's environmental inspections of the Subject Property are
acceptable to Lessee, in Lessee's sole judgment, then Lessee .shall deliver to Lessor the
Environmental Condition Acceptance Notice.
(ii) If Lessee's environmental inspections reveal an Environmental Condition as set
forth above, and Lessee, in its sole judgment, proceeds with remediation of the Environmental
Condition(s), then Lessee shall be responsible for the first Fifty Thousand Dollars
($50,000.00) worth of remediation at the Subject Property; Lessor shall be responsible for the
next Fifty Thousand Dollars ($50,000.00) of remediation at the Subject Property; Lessee and
Lessor shall . share equally in the cost of the next Five Hundred Thousand Dollars
($500,000.00) for a total cost of Six Hundred Thousand Dollars ($600,000.00).
(iii) If the remediation should - exceed Six Hundred Thousand Dollars
($600,000.00), Lessor and Lessee will attempt to reach an agreement as to the apportionment
of any additional costs for clean-up. In the event the Parties are unable to reach an agreement,
either party shall have the right to cancel this Lease Agreement
It is understood between Lessor and Lessee that Lessor's contributions for clean-up of
the Subject Property may be in the form of Rent credits to Lessee rather than actual cash
contributions, whereby Lessee shall be responsible for the full cost of the clean-up to a
maximum of Six Hundred Thousand Dollars ($600,000.00) as set forth above.
(b) Upon Lessee performing the Audit of the Subject Property and either (i)
accepting the environmental status of the Subject Property, or (ii) remediating any
Environmental Condition(s) at the Subject Property pursuant to 20.2(a)(ii) above, Lessee shall
provide Lessor with notice pursuant to this Article XX, thereby agreeing to take the Subject
Property "AS IS" without any further representations from Lessor as. to the condition or
suitability of the Subject Property, as further set forth in Section 13.2 of this Lease
Agreement, for the uses intended and set forth in this Lease Agreement.
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(c) Release.
Lessee, on behalf of itself and its heirs, successors and assigns, hereby waives,
releases, acquits and forever discharges Lessor, officials and employees, agents,
representatives and any other person acting on behalf of Lessor, and the successors and assigns
of any of the preceding, of and from any and all claims, actions, causes of action, demands,
rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or
unknown, foreseen or unforeseen, which Lessee or any of its heirs, successors or assigns now
has or which may arise in the future on account of or in any way related to or in connection
with Hazardous Materials or Environmental Condition(s), in, at, on, under or related to the
Subject Property, or any violation or potential violation of any Environmental Law applicable
thereto.
20.3 Lessee Environmental Covenant.
a. Throughout the Term of this Lease Agreement, Lessee shall not undertake or
permit any Environmental Activity other than (i) in compliance with all Environmental Laws,
(ii) in. such manner as not to present a significant present or potential health risk to Lessor,
other Subtenants or their respective agents, employees and guests, and (iii) as is customary for
boatyard lessees in the State of Florida. If Lessee shall breach the covenant in this Section,
then in addition to any other rights and remedies which may be available to Lessor under this
Lease Agreement or otherwise at law or in equity, Lessor may require Lessee to take all
actions, or to reimburse Lessor for the costs of any and all actions taken by Lessor, as are
necessary to comply with all Environmental Laws and to abate any significant present or
potential health risk with respect to any Environmental Activity conducted or permitted or any
Hazardous Material present or potential health risk with respect to any Environmental Activity
conducted or permitted or any Hazardous Material present at the Subject Property. Lessee's
obligation under this Section shall survive the expiration or earlier termination of this Lease
Agreement for a period of One (1) year or such other time frame established pursuant to
Section 20.11.
b. No Hazardous Materials.
Lessee shall not cause, permit or suffer any Hazardous Materials to be brought
upon, treated, stored, disposed of, discharged, released, produced, manufactured, generated,
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refined or used upon, about or beneath the Subject Property or any portion thereof by Lessee,
its agents, employees, contractors, Subtenants or invitees, other than Hazardous Materials of a
nature and in amounts which are incidental to and customarily present for the uses permitted at
the Subject Property.
C. Permitted Hazardous Materials.
Lessee shall not cause, permit or suffer any Hazardous Materials to be brought
upon, treated, stored, disposed of, discharged, released, produced, manufactured, generated,
refined or used upon, about or beneath the Subject Property or any portion thereof by Lessee,
its agents, employees, contractors, Subtenants or invitees other than those Hazardous Materials
incidental to and customarily present at boatyards, marinas, and public marketplaces in the
State of Florida (the "Permitted Hazardous Materials"). The Permitted Hazardous Materials
may only be brought upon, kept and used in or about the Subject Property by such parties in
strict compliance with` all Environmental Laws and applicable handling, storage, use and
disposal procedures (the "Approved Handling Procedures"), which shall be submitted by
Lessee to Lessor at the time Lessee commences its business operations on the Subject Property
or enters into such Subleases for the use of the Subject Property as contemplated herein.
20.4. Lessee's Update. In any event, Lessee shall, no less frequently than on an
annual basis, within Thirty (30) days of the beginning of each Lease Year, and at Lessee's sole
cost and expense, engage a licensed consultant reasonably acceptable to Lessor to update the
Approved Handling Procedures to bring them into compliance with all Environmental Laws
then in effect. Throughout the Term of the Lease Agreement, Lessee shall maintain, at the
Subject Property, accurate and complete records with respect to Lessee or Lessee's
Subtenants' use, storage, handling and disposal of all Hazardous Materials at, in, on or under
the Subject Property, and Lessee shall make such records available to Lessor and Lessor's
environmental consultants upon Lessor's request therefor.
20.5. Lessor's Right to Perform.
After Sixty (60) day prior written notice, should Lessee fail to perform or
observe any of its obligations or agreements pertaining to Hazardous Materials or
Environmental Activities under this Lease Agreement or under Environmental Laws, then
Lessor shall have the right, but not the duty, without limitation upon any of the rights of
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Lessor under .this Lease Agreement, to enter the Subject Property personally or through its
agents, consultants or contractors and perform the same. Lessee agrees to indemnify,
reimburse, protect, defend and hold harmless Lessor for the costs thereof and liabilities arising
or resulting therefrom or in connection therewith.
20.6. Remediation.
In the event Lessor discovers any breaches under this Lease Agreement or any
violations of Environmental Laws pursuant to the foregoing , without limitation:: (i) any
contamination of the Subject Property from Hazardous Materials caused or permitted to be on
the Subject Property by Lessee, its agents, employees, contractors, licensees or invitees (such
parties being collectively referred to as "Lessee" for purposes of this Section 20.6); (ii) a
violation of any Environmental Laws, or the non-compliance with any Approved Handling
Procedures, with respect to any Hazardous Materials or any Environmental Activity conducted
or permitted by Lessee at the Subject Property; or (iii) a breach by Lessee of its covenants and
obligations under this Lease Agreement, then Lessee shall immediately cease all operations on
the Subject Property involving the use of Hazardous Materials found not to be in compliance
with Environmental Laws or Approved Handling Procedures until such operations are brought
into compliance therewith. To the extent of any Hazardous Material contamination of the
Subject Property or other properties caused or permitted by Lessee, Lessee shall promptly
commence and pursue to completion, at Lessee's sole cost and expense, a remediation program
with respect to such Hazardous Materials; .provided, however, Lessor may at its option (but in
no event shall be obligated to) elect to conduct the remediation program at Lessee's sole cost
and expense, the design and scope of which shall be determined solely by Lessor and Lessor's
environmental consultants and any pertinent governmental agencies.
20.7. Closure.
If any 'Environmental Laws or any permits, variances, licenses or similar
entitlements, authorizations or approvals involve or contain closure or post -closure
requirements or conditions, Lessee shall comply with and satisfy all such requirements and
conditions prior to the expiration or -earlier termination of this Lease Agreement, and in no
event later than Lessee's vacating the Subject Property. Lessee shall, upon Lessor's request,
provide Lessor with security acceptable to the Lessor to secure Lessee's obligations to comply
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with 'and satisfy such closure and post -closure requirements and conditions. If Lessor
determines that Lessee will not or will be unable to comply with and satisfy such requirements
and conditions prior to the expiration or earlier termination of this Lease Agreement, or prior
to Lessee's vacating the Subject Property, Lessor may, but shall not be obligated to, comply
with or satisfy such requirements and conditions on Lessee's behalf and may apply the security
provided by Lessee for such purposes. Any such action by Lessor shall not be deemed a
waiver or excuse of any default by Lessee in the performance of its obligations under this
Article XX, but shall be in addition to and not in lieu of any other rights or remedies available
to Lessor at law or inequity with respect to Lessee's default in such obligations.
20.8.. Lessor's Option.
If Lessee fails to comply with the provisions of this Section prior to the
expiration or earlier termination of the Term of this Lease Agreement, or prior to Lessee's
vacating the Subject Property, then upon the expiration or earlier termination of the Term of
this Lease Agreement or Lessee's vacation of the Subject Property, Lessor shall have the
option either to consider the Lease Agreement as having ended or to treat Lessee as a holdover
lessee in possession of the Subject Property. If Lessor considers the Lease Agreement as
having ended, then Lessee shall not be released from its obligations set forth in this Section.
If Lessor treats Lessee as a holdover Lessee in possession of the Subject Property, then Lessee
shall pay to Lessor the sum as set forth in Section 34.2, until such time as Lessee fulfills its
obligations under this Section, and during such holdover period all of the terms of this Lease
Agreement and Lessee's obligations hereunder shall remain in full force and effect.
20.9. Environmental Liens.
Lessee shall promptly notify Lessor as to any liens threatened or attached
against the Subject Property pursuant to any Environmental Law. In the event that such a lien
is filed against the Subject Property, then Lessee shall, within Thirty (30) days from the date
that the lien is filed against the Subject Property, and at any rate prior to the date of any
Governmental Agency or other party commences proceedings to foreclose on such lien, either:
(a) pay the claim and remove the lien from the Subject Property; or (b) furnish either (i) a
bond satisfactory to Lessor in the amount of the claim out of which the lien arises, (ii) a cash
deposit in the amount of the claim out of which the lien arises, or (iii) other security
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satisfactory to the Lessor in an amount sufficient to discharge the claim out of which the lien
arises.
20.10 Environmental Indemnity.
a. Indemnity. With respect to the presence of any Hazardous Materials
in, at, on, under or about the Subject Property or the threatened releases of any Hazardous
Materials in, at, on, under or about the Subject Property, or any Environmental Activity
conducted or permitted by Lessee or any other party on the Subject Property during the Term
of this Lease Agreement or holdover period, or any violation of any Environmental Laws
pertaining to the condition of the Subject Property or any Environmental Activity thereon to
the extent caused by Lessee at any time or caused by Lessee's officers, employees, agents,
subcontractors, licensees, Subtenants, or invitees during the Term of the Lease Agreement, or
the breach of any warranty or covenant or the inaccuracy of any representation of Lessee
contained in this Lease Agreement, and subject to other defenses allowed by law, Lessee
hereby indemnifies, defends and holds harmless Lessor from and against any suits, actions,
legal or administrative proceedings, demands, claims, liabilities, fines, penalties, losses,
injuries, damages, penalties, expenses or costs, including interest and reasonable attorneys'
and paralegals' fees for attorneys of Lessor's choice, costs of defense (direct and on appeal),
settlement or judgment, of any and every kind whatsoever paid, incurred or suffered. by,
claimed or assessed against Lessor under any Environmental Law, without limitation, and any
and all statutes, laws, ordinances, codes, rules, regulations, orders or decrees, or regulation
with respect to or imposing liability including strict liability, or other standards of conduct
concerning any Hazardous Materials or Environmental Activity, by any person or entity or
governmental department or agency for, with respect to, or as direct or indirect result of the
presence in or under, or the transportation, handling, management, storage, spill, escape
seepage, leakage, spillage, discharge, emission, or release to/from the Subject Property of any
Hazardous Material, which is in any way connected with any death or injury to any person,
destruction or damage to any property, potential or actual impacts, contamination or adverse
effects on the environment, violation of Environmental Law, or any loss to the Lessor
occasioned in any .way by Hazardous Materials or any Environmental Activity on the Subject
Property caused by (i) Lessee's breach of any term or provision of this Lease Agreement; or
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(ii) the negligent or intentional activities of the ' Lessee before, during. or after Lessee's
occupancy of the Subject Property.
b. Lessee's Direct Obligation. This indemnity specifically includes the
direct obligation of Lessee to perform, at its sole cost and expense, any remedial or other
activities required, ordered, recommended or requested by any agency or government official
or otherwise necessary to avoid or minimize injury or liability to any person, or to prevent the
spread of pollution, however it came to located thereon (hereinafter, the "Remedial Work").
Lessee shall perform all such Remedial Work in its own name in accordance with
Environmental Laws.
C. Lessor's Option. Without waiving its rights hereunder, Lessor may,
at its option, perform such remediation as described herein and thereafter seek reimbursement
for the costs thereof. Lessee shall permit Lessor access to the Subject Property to perform
such remedial activities.
d. Reimbursement. Whenever Lessor has incurred costs described in
this Section, Lessee shall, within Thirty (30) days of receipt of notice thereof, reimburse
Lessor for all such expenses together with interest from the date of expenditure at prime rate.
e. Survival of Indemnity Provisions. Lessee's obligations hereunder shall
survive the expiration or earlier termination of the Term of the Lease Agreement, the
discharge of all other obligations owed by the parties to each other, and any transfer of title to
the Subject Property (whether by sale, foreclosure, deed in lieu of foreclosure or otherwise)
for a period of no more than One (1) year or such other time frame established pursuant to
Section 20.11.
f. Successors and Assigns. Subject to Article VIII pertaining to the
transfer rights of the Parties, this Article XX shall be binding upon and inure to the benefit of
the Parties hereto and their respective executors, administrators, legal representatives, heirs,
successors and assigns.
Section 20.11. Environmental Assessment at End of Lease Term.
(a) At any time within the Twelve (12) month period prior to the expiration of the
Termof the Lease- Agreement, or upon earlier termination of the Lease Agreement, Lessee,
upon written request by. Lessor, shall cause to be prepared at it sole cost and expense an
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environmental audit (the "End -Term Audit") of the Subject Property and the Leasehold
Improvements. to determine the environmental condition of the Subject Property and the
Leasehold Improvements. The End -Term Audit shall be completed by the Consultant or such
other environmental consultant of Lessee's choice with the approval .of the City Manager,
which approval shall not be unreasonably withheld.
If the End -Term Audit indicates. the presence of Hazardous Materials or any
Environmental Condition not present or indicated in the Audit, then Lessee and Lessor shall
together determine whether the presence of such Hazardous Materials or Environmental
Condition was caused by Lessee and/or Lessee's Subtenants or some other third party. If the
contaminator is the Lessee and/or its Subtenants, including their agents, officials, employees,
contractors, subcontractors, licenses, or invitees, the Lessee shall pay or cause to be paid all
Costs associated with the required remediation and clean-up.
(b) In the event that it is determined that neither the Lessee nor its Subtenants,
including their agents, officials, employees, contractors, subcontractors, licensees or invitees,
is the contaminator, but that the presence of such new Hazardous Materials was caused by the
acts or negligence of a third party, the Lessor and Lessee shall fully cooperate with each other
in all matters relating to the identification and clean-up responsibilities of such third party
contaminator and its clean-up responsibilities.
(c) Any dispute between the Lessor and Lessee arising in connection with a
determination of (i) the source of any new Hazardous Materials, (ii) the Person or Persons
responsible for such new Hazardous Materials, (iii) the allocation of costs of clean-up of any
new Hazardous Materials if more than one Person is responsible, or (iv) any related matter,
shall be submitted to arbitration in accordance with the provisions of Article XVII.
ARTICLE XXI
PUBLIC UTILITY CHARGES
Section 21.1. Lessee to Provide and Pay for Utilities. The Lessee shall pay, or cause
to be paid, all proper charges, including connection and tapping fees, for the use of gas,
electricity, light, heat, water, sewer, storm sewer and power, fire lines, telephone, protective
services and other communication services, and for all other public or private utility services,
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which shall be used, rendered or supplied upon or in connection with the Subject Property and
the Leasehold Improvements or any part of it, at any and the Lessor will cooperate with and
assist the Lessee in such endeavor.
Section 21.2. Lessor Not Liable for Failure of Utilities. Lessor. shall not be liable
(other than for their own or any of their agents, servants and employees gross negligence or
intentional wrongful acts) for any failure of water supply, sewer, gas or electric current, or for
any injury or damage to any Person or property caused by or resulting water, sewer, gas or
electricity which may leak or flow from the water, sewer or gas mains on to any part of the
Leasehold Improvements or the Subject Property.
ARTICLE XXII
INDEMNIFICATION
Section 22.1. General Indemnification of Lessor Without Limitation of Any Other
Indemnity Given Hereunder. The Lessee agrees to indemnify, defend and save harmless the
Lessor against and from any and all claims by or on behalf of any person, firm or corporation,
arising, (other than due to the Lessor's gross or wanton negligence or intentional wrongful
acts upon the Subject Property) from any Work in or about the Subject Property and the
Leasehold Improvements. The Lessee also agrees to indemnify, defend and save the Lessor
harmless against and from claims and damages arising (other than due to the Lessor's gross
negligence), during the Lease Term from a hazardous condition of the Leasehold
Improvements and Subject Property suffered or created by Lessee or any of its agents,
contractors, servants, employees, licensees or invitees, or arising, other than due to the
Lessor's negligence or intentional wrongful acts, from any breach or default on the part of the
Lessee to be performed, pursuant to the terms of this Lease Agreement, or arising from any
act or negligence of the Lessee or any of its agents, contractors, servants, employees or
licensees or invitees (eg. boatyard clientele), or arising, (other than due to the Lessor's gross
or wanton negligence) from any accident, injury or damage caused to any Person occurring
during the Lease Term in or on the Subject Property, and from and against all costs, counsel
and legal fees, expenses and liabilities incurred in any claim or action or proceeding brought
thereon. In case any action or proceeding be brought against the Lessor by reason of a claim,
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the Lessee, upon notice from the Lessor, shall, at its expense, resist or defend the action or
proceeding by counsel reasonably satisfactory to the Lessor. If the Lessee be required to
defend any action or proceeding pursuant to this Article XXH to which action or proceeding
the Lessor is made a party, the Lessor shall also be entitled to appear, defend, or otherwise
take part in the matter involved, at its election, and at the sole expense of the Lessee (except
the Lessee shall not be obligated to pay counsel fees when an insurance carrier is obligated to
and does defend the Lessor), by counsel located within Dade County of its own choosing,
provided this action by the Lessor does not limit or make void any liability of any insurer of
the Lessor or the Lessee in respect to the claim or matter in question and provided that the
legal fees and costs are reasonable. The foregoing agreements of indemnity are in addition to
and not by way of limitation of any other covenants in this Lease Agreement to indemnify the
Lessor. The foregoing agreements of indemnity by the Lessee do not apply to any claims of
damages arising out of the failure of the Lessor to perform acts or render services in its
municipal capacity.
Section 22.2. General Indemnification of Lessee. Except as provided in Article XX
which exclusively covers the Lessor's liability for Environmental Costs, Lessor, to the extent
allowed by law, shall protect, defend, indemnify, and hold the Lessee and its officers,
members, directors, agents, and employees completely harmless from and against any and all
liabilities, losses, suits, claims, judgments, fines or demands arising by reason of the injury or
death of any person at the Subject Property or damage to the Subject Property, including all
reasonable costs for investigation and defense thereof (including, but not limited to attorney
fees, court costs, and expert fees, through all levels of trial and appellate proceedings), of any
nature whatsoever, arising out of the Lessor's operation, use or occupancy of the Subject
Property or the acts or omissions of its officers, employees, contractors, agents,
subcontractors, licensees, tenants, or invitees on the Subject Property, provided such injury,
death or damage occurred in or at the Subject Property, except to the extent such injury, death
or damage is caused (a) by an act of God, or (b) by the negligence or willful misconduct of the
Lessee, its officers, employees, agents, subcontractors, licenses, Subtenants or invitees. The
Lessee shall give the Lessor reasonable notice of any such claims or actions. The provisions
of this Section 22.2 shall survive the expirations or early termination of this Lease. The
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provisions of this Section 22.2 do not cover indemnification or liability of the Lessor to Lessee
for Environmental Costs, which is exclusively covered in Article XX.
ARTICLE XXIII
LIEN FOR RENT AND OTHER CHARGES
Section 23.1. Lien for Rent. The whole amount of the Rent, and each and every
installment, and the amount of all taxes, assessments, water rates, insurance premiums and
other charges and Impositions paid by the Lessor under the provisions of this Lease
Agreement, and all costs and attorneys fees which may be incurred by the Lessor in enforcing
the provisions of this Lease Agreement in carrying out any of the provisions of this Lease
Agreement, shall be and they are deemed to constitute a valid lien upon the Leasehold
Improvements, and upon the Lessee's Leasehold Estate, subject and subordinate, however, to
any Leasehold Mortgage and to the rights of any Leasehold Mortgagee and to the lien given by
Lessee in the purchase of -any equipment, machinery, furniture, fixtures or other personalty
utilized on or in the Subject Property, and may be enforced by all remedies at law and in
equity. The City Manager shall promptly, upon request of Lessee, execute and deliver lien
subordination agreements required by any Leasehold Mortgagee or other creditor -described
above.
ARTICLE XXIV
ADDITIONAL BENEFITS TO THE CITY OF MIAMI
Section 24.1. Additional Benefits. Lessee hereby agrees to provide each Lease Year
during the Lease Term the following additional benefits to the City of Miami:
(a) Tax Abatement for Historic Property. Should the Lessee be successful in
obtaining . a tax abatement for the Historic Property, Lessee shall, on an annual basis,
contribute to Lessor, acting in its capacity as a municipal corporation of the State of Florida,
an amount equal to fifty percent (50%) of the taxes abated, for the period of time Lessee is
eligible to receive such abatement.
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ARTICLE XXV
CONDEMNATION
Section 25.1. Definitions. For purposes of this Article XXV, the following words
shall have the meanings attributed to them in Section 25.1:
(a) "Date of Taking" means the earlier of (i) the date on which actual possession of all
or less than all of the Subject Property and Leasehold Improvements, as the case
may be, is acquired by any lawful power or authority pursuant to the provisions of
Applicable Law or (ii) the date on which title to all of less than all of the Subject
Property and Leasehold Improvements, as the case may be, has vested in any lawful
power or authority pursuant to the provisions of Applicable Law.
(b) "Net Condemnation Award" means the actual amount of the award paid in
connection with or arising from the acquisition or other taking of all or less than all
of the Subject Property and Leasehold Improvements, as the case may be, less all
reasonable out-of-pocket expenses incurred by Lessor, Lessee or any Leasehold
Mortgagee in connection with obtaining such award, including, without limitation,
all reasonable attorneys' fees and disbursements incurred in connection therewith.
Section 25.2. Entire Subject Property Taken by Condemnation. In the event that all of
the Subject Property and the Leasehold Improvements (or such portion thereof as shall, in the
good faith opinion of Lessee, render it economically unfeasible to effect restoration thereof for
its intended purpose) shall be taken for any public purpose by the right of condemnation, the
exercise of the power of eminent domain or shall be conveyed by the Lessor and Lessee acting
jointly to avoid proceedings of such taking, the Rent and money to be treated as Additional
Rent pursuant to this Lease shall be prorated and paid by the Lessee to the Date of Taking or
conveyance in lieu thereof, and this Lease shall terminate and become null and void as of the
Date of Taking or such conveyance; and the amount of damages resulting to Lessor and
Lessee, respectively, and to their respective interests in and to the Subject Property, the
Leasehold Improvements, and in connection with this Lease, shall be separately determined
and computed by the court having jurisdiction and separate awards and judgments with respect
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to damages to Lessor and Lessee, respectively, and to each of their respective interests, shall
be made and entered.
In the event that a court shall make a single Net Condemnation Award without
separately determining the respective interests of Lessor and Lessee, and if Lessor and Lessee
shall not agree in writing as to their respective portions. of an award within Thirty (30) days
after the date of the final determination by the court of the amount of it, Lessor and Lessee
agree to submit the matter to the court on stipulation for the purpose of a judgment
determinative of their respective shares. In the event for any reason the trial judge refuses to
permit a determination by judgment, then the respective interests of Lessor and Lessee shall be
determined by arbitration under Article XVII. In any event, the Lessor shall be entitled to
receive its reversionary interest . in the Subject Property and Leasehold Improvements and
Lessor's present value of rent due under the terms of the Lease Agreement and for the
Lessee's estate in the Subject Property and the Leasehold Improvements which a buyer willing
but not obligated to buy, would pay therefore in an arms length transaction. In no event shall
Lessee be entitled to compensation for any ownership interest in the Subject Property at the
time of condemnation.
Section 25.3. Partial Taking of Subject Property by Condemnation.
(a) In the event less than all of the Subject Property and/or Leasehold
Improvements shall be taken for any public use or purpose by the right or the exercise of the
power of eminent domain, or shall be conveyed by the Lessor and Lessee acting jointly to
avoid proceedings of such taking, and Lessee shall be of the good faith opinion that it is
economically feasible to effect restoration thereof, then this Lease and all the covenants,
conditions and provisions hereunder shall be and remain in full force and effect as to all of the
Subject Property not so .taken or conveyed (except as provided in subsection 25.4). Lessee
shall to the extent the proceeds of the Net Condemnation Award are made available .to it,
pursuant to the terms hereof, remodel, repair and restore the Leasehold Improvements so that
they will be comparable to the Leasehold Improvements prior to the condemnation, taking into
consideration the fact of the condemnation; provided, however, that in so doing, Lessee shall
not be required, to expend. more than the amount of any Net Condemnation Award actually
received by Lessee.
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(b) The Net Condemnation Award allowed to Lessor and Lessee shall be paid to
and received by the Parties as follows:
(i) There shall be paid to the Lessor the value of the portion of the land so
taken, which land shall be valued as if unencumbered;
(ii) There • shall be paid to the Lessee any amount by which Lessee's profits
and value of Lessee's interest in the Lease Agreement and the Leasehold Improvements have
been reduced by the taking after any payment required by the Lease Agreement;
(iii) There shall be paid to the Lessee the amount required to complete the
remodeling and repairs to the Leasehold Improvements pursuant to (a) above;
(iv) The Lessor and Lessee shall be paid portions of the balance of the Net
Condemnation Award or awards, if any, which are allocable to and represented by the value of
their respective interest in the Subject Property as found by the court in its condemnation
award. In the event that a court shall make a single Net Condemnation Award without
separately determining the respective interests of Lessor and Lessee, and if Lessor and Lessee
shall not agree in writing as to their respective portions of such award within Thirty (30) days
after the date of the final determination by the court of the amount of it, Lessor and Lessee
agree to submit the matter to the court on stipulation for the purpose of a judgment
determinative of their respective shares. In the event for any reason the trial judge refuses to
permit a determination by judgment, then the respective interests of Lessor and Lessee shall be
determined by arbitration under Article XVII.
Section 25.4. Adjustment of Minimum Annual Rent Upon Partial Taking. In the ,event
a part of the Subject Property and the Leasehold Improvements thereon, if any, shall be taken
for any public use or purpose by the exercise of the power of eminent domain, or shall be
conveyed by Lessor and Lessee acting jointly to avoid proceedings of such taking, then Rent,
and money to be treated as Additional Rent pursuant to this Lease Agreement shall be paid by
Lessee to the Date of Taking or conveyance in lieu thereof, and after such date the Minimum
Annual Rent for the remainder of the Subject Property shall be reduced by an amount equal to
the Minimum Annual Rent then in effect multiplied by the percent by which Gross Revenue is
affected by such taking.
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Section 25.5. Deposit of Condemnation Award with Escrow Agent. Unless the effect
of a condemnation proceeding shall be to terminate this Lease Agreement by operation of law
or as provided in Section 25.2 above, and except as may be provided in any Leasehold
Mortgage to, or agreement with, any Leasehold Mortgagee described in Section 6.8 above,
any Net Condemnation Award made in respect of the Leasehold Improvements in a
condemnation proceeding shall be deposited with the Leasehold Mortgagee as escrow agent
(unless Leasehold Mortgagee refuses to act as such, in which case the Lessor and Lessee shall
select a bank to serve as escrow agent) to be disbursed for the cost of restoring the Leasehold
Improvements and accomplishing the Work and for other related purposes.
Section 25.6. Rights of Leasehold Mortgagee. Lessor and Lessee shall not settle or
compromise the amount or division of any Net Condemnation Award in any condemnation
proceeding without any Leasehold Mortgagee's reasonable consent. Any Leasehold
Mortgagee of Lessee shall be entitled to appear in any condemnation proceedings and make
claim for the share of any award to which Lessee is entitled by the terms of this Article.
Section 25.7. Temporary Taking. In the event that all or any portion of the Leasehold
Improvements or the Subject Property shall be taken by the right of condemnation or the
exercise of the power of eminent domain for governmental use or occupancy for a temporary
period, this Lease Agreement shall not terminate and Lessee shall continue to perform and
observe all of its obligations (including the obligation to pay Rent as provided throughout this
Lease Agreement) as though the temporary taking had not occurred except only to the , extent
that it may be prevented from so doing by the terms of the order of the authority which make
the temporary taking or by the conditions resulting from the taking, including the loss of its
possession of all or any part of the Leasehold Improvements or the Subject Property. In the
event the taking for governmental occupancy is for a period entirely within the term of this
Lease Agreement, then Lessee shall be entitled to receive the entire amount of any Net
Condemnation Award made for the taking, whether paid by way of damages, . Rent or
otherwise. If the period of governmental occupancy extends beyond the termination of the
Lease Term, the Lessor shall only be entitled to receive that portion of the Net Condemnation
Award allocable to the period beyond. the termination of the Lease Term. The amount of any
Net Condemnation Award payable to Lessee, on account of a temporary taking of all or any
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part of the Leasehold Improvements, shall be deemed a part of the Lessee's Leasehold Estate
for all purposes in this Lease Agreement. If the Net Condemnation Award does not separately
determine the amount applicable to the taking of the interest of the Lessor in this Lease
Agreement and in the Leasehold Improvements and if Lessor and Lessee shall not agree in
writing as to the proportion of the award so applicable to the respective Parties, then Lessor
and Lessee shall submit the matter to the court on stipulation for the purpose of a judgment
determinative of the interest of the parties. In the event for any reason the trial judge refuses
to permit a determination by judgment, then the respective interests of Lessor and Lessee shall
be determined by arbitration under Article XVII.
ARTICLE XXVI
DEFAULT PROVISIONS
Section 26.1. Events of Default by Lessee. Each of following events is defined as an
Event of Lessee's Default:
(a) The failure of the Lessee to pay any installment of Minimum Annual Rent or
Percentage Rent, when due and the continuance of the failure for a period of Fifteen (15) days
after notice in writing from the Lessor to the Lessee;
(b) The failure of the Lessee to perform any of the other covenants, conditions and
agreements of this Lease Agreement on the part of the Lessee to be performed; and the
continuance of the failure for a period of Thirty (30) days after notice in writing (which notice
shall specify the respects in which the Lessor contends that the Lessee has failed to perform
any of the covenants, conditions and agreements) from the Lessor to the Lessee, unless with
respect to any default which cannot be cured within Thirty (30) days, the Lessee, or any
person holding by, through or under the Lessee, in good faith, promptly after receipt of
written notice, shall have commenced and continued diligently to reasonably prosecute all
action necessary to cure the default; or
(c) The entry of an order, judgment or decree by any court of competent
jurisdiction, appointing a receiver, trustee or' liquidator of it or of its assets, and this order,
judgment or decree continuing unstayed and in effect for any period of Sixty (60) consecutive
days, or if this Lease Agreement is taken under a writ of execution.
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In the event this Lease Agreement is assumed by or assigned to a trustee pursuant to
the provisions of the Bankruptcy Reform Act of 1978 (referred to as Bankruptcy Code) (11
USC 1 et seq. ), and the trustee shall cure any default under this Lease Agreement and shall
provide adequate assurances of future performance of this Lease Agreement as are required by
the Bankruptcy Code (including, but not limited to, the requirement of Section 365(b)(1))
(referred to as Adequate Assurances), and if the trustee does not cure such default and provide
such Adequate Assurances under the Bankruptcy Code within the applicable time periods
provided by the Bankruptcy Code, then this Lease Agreement shall be deemed rejected
automatically and the Lessor shall have the right immediately to possession of the Subject
Property and shall be entitled to all remedies provided by the Bankruptcy Code for damages
for breach or termination of this Lease Agreement.
Section 26.2. Remedies in Event of Lessee's Default. The Lessor may treat any one
or more of the Event(s) of Lessee's Default as a breach of this Lease Agreement, and
thereupon at its option, by serving written notice on the Lessee and its Leasehold Mortgagee
of the Event of Default, the Lessor shall have, in addition to every other right or remedy
existing at law or equity, subject to: (i) the provisions of Article VI; (ii) compliance with all
applicable laws; (iii) the grace periods and cure periods set forth within this Lease, and (iv)
with respect to Event(s) of Lessee's Default described in Section 26.1 (b) above, subject to the
requirements pertaining to arbitration as set forth in Article 17 of this Lease, one or more of
the following remedies:
(a) Bring an action in court to terminate Lessee's right of possession under this
Lease and to collect any other sum of money and damages due under the terms of this Lease,
however, notwithstanding the foregoing, the Parties agree that the Lessee shall have the right
to cure any Event of Lessee's Default with respect to the payment of Minimum Annual Rent or
Percentage Rent at any time prior to the issuance of a final judgment granting the Lessor
possession of the Subject Property, provided that Lessee pays to the Lessor, in addition to the
full amount of Minimum Annual Rent or Percentage Rent due, interest at prime rate on such
amount due for the period commencing on the date of the Event of Default through the date of
such payment, and all reasonable court costs and attorney's fees.
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(b) During the. development or construction of the Leasehold Improvements, the
Lessor shall have the right, but not the obligation, to carry out or complete the Work on behalf
of the Lessee without terminating this Lease Agreement, utilizing the proceeds of the payment
and performance bonds.
Section 26.3. Waivers and Surrenders to Be in Writing. The receipt of Rent by the
Lessor, with knowledge of any breach of this Lease Agreement by the Lessee or of any
default on the part of the Lessee in the observance or performance of any of the conditions,
agreements or covenants of this Lease Agreement, shall not be deemed to be a waiver of any
provision of this Lease Agreement. Notwithstanding the foregoing, Lessor must advise Lessee
forthwith in writing of any breach of this Lease Agreement which Lessor has knowledge of.
No failure on the part of the Lessor to enforce any covenant or provision contained in this
Lease Agreement, or any waiver of any right under it by the Lessor, unless in writing, shall
discharge or invalidate' such covenant or provision or affect the right of the Lessor to enforce it
in the event of any subsequent breach or default. No covenant or condition of this Lease
Agreement shall be deemed to have been waived by the Lessor unless the waiver be in writing,
signed by the City Manager or the Lessor's agent duly authorized in writing. .Consent of the
Lessor to any act or matter must be in writing and shall apply only with respect to the
particular act or matter to which the consent is given and shall not relieve the Lessee from the
obligation, wherever required under this Lease Agreement, to obtain the consent of the Lessor
to any other act or matter. The receipt by the Lessor of any Rent or any other sum of money
or any other consideration paid by the Lessee after the entry of a judgment granting possession
of the Subject Property to the Lessor, shall not reinstate or continue the Lease Term demised
unless so agreed to in writing and signed by the City Manager and Lessee.
Section 26.4. Rights of Leasehold Mortgagee Upon Lessee's Default. All of Lessor's
rights and remedies upon Lessee's default are subject and subordinate to the provisions of
Article VI of this Lease concerning the rights and remedies of Leasehold Mortgagees.
Section 26.5. Events of Default by Lessor.
(a) Events of Lessor's Default. The failure of the Lessor to ,perform any of the
covenants, conditions and agreements of this Lease which are to be performed by the Lessor
and the continuance of such failure for a period of Sixty (60) days after notice thereof in
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writing from Lessee to the Lessor (which notice shall specify the respects in which Lessee
contends that the Lessor has failed to perform any of such covenants, , conditions and
agreements), and unless such default be one which cannot be cured within Sixty (60) days and
the Lessor within such Sixty (60) day period shall have commenced and thereafter shall
continue diligently to prosecute all actions necessary to cure such defaults, such failure shall
constitute an "Event of the Lessor's Default".
(b) Lessee's Remedies in Event of Lessor's Default. If an Event of. the Lessor's
Default shall occur, Lessee, may treat any one or more of the Event(s) of Lessor's Default as a
breach of this Lease Agreement, and thereupon at its option, by serving written notice on the
Lessor, the Lessee shall have, in addition to every other right or remedy existing at law or
equity (but subject to compliance with all Applicable Laws, the grace periods and cure periods
set forth within this Lease, and the requirements pertaining to arbitration as set forth in
Article XVII of this Lease), one or more of the following remedies:
hereunder;
(i) the right and option to terminate this Lease and all of its obligations
(ii) the right to a writ of mandamus, specific performance, injunction or other
similar relief, available to it under Applicable Law against the Lessor (including any or all of
the members of its governing body, and its officers, agents or representatives) provided,
however, that in no event shall any member of such governing body or any of its officers,
agents or representatives be personally liable for any of the Lessor's obligations to Lessee
hereunder;
(iii) the right to obtain damages resulting from such default.
Section 26.6 Mitigation. Lessor and Lessee hereby expressly acknowledge and agree
that each shall have an' affirmative obligation. to mitigate their respective damages as a
consequence of a default by the other.
ARTICLE XXVII
INVALIDITY OF PARTICULAR PROVISIONS
Section 27.1. Invalidity of Provisions. If any provision of this Lease or the application
of it to either Party shall to any extent be invalid or unenforceable; the remainder of this Lease
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Agreement, shall not be affected, and each provision of this Lease Agreement shall be valid
and be enforced to the fullest extent permitted by law.
ARTICLE XXVIII
QUIET ENJOYMENT
Section 28.1. Quiet Enjoyment. Subject to the terms of this Lease, specifically
including, but not limited to the environmental remediation steps to be taken under Article XX
"Environmental Protection" by the parties as set forth therein which provision and others in
the Lease the Lessee acknowledges may cause disruptions and disturbance to the Lessee, and
upon the observance by the Lessee hereunder of all the terms, provisions, covenants and
conditions imposed upon the Lessee, the Lessor covenants to the Lessee that the Lessee shall
peaceably and quietly hold, occupy and enjoy the Subject Property for the Term of this Lease
without any interruption, disturbance, or hindrance by the Lessor, its successors and assigns,
or by persons claiming by, through, or under the Lessor for the Subject Property leased
herein, or by persons with title superior to the Lessor, its successors and assigns; provided,
however, that the Lessor shall not be liable or any violation of this clause or for any
disturbance or disruption in or to the Lessee's business, for acts or omissions of tenants, users
of the Marina and third parties, specifically including but not limited to users of any areas
within or adjacent to the Subject Property boundaries, or when the Lessor or any department
or agency thereof is acting in its governmental capacity, or by Force Majeure.
ARTICLE XXIX
LESSOR'S TITLE AND LIEN
Section 29.1. Title of Leased Property. The Lessor covenants and warrants that
Lessor has full right. and authority to enter into this Lease for the Lease Term. Lessor shall
deliver to counsel for Lessee on or before Sixty (60) days after the Execution Date of this
Lease Agreement, an Abstract of Title prepared or brought current by a reputable abstract firm
purporting to be an accurate synopsis of the instruments affecting the title to Subject Property
recorded in the public records of Dade County through the Lease Date. An abstract shall
commence with the earliest public records, or such later date as may be customary in Dade
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County. Lessor shall demise and lease to Lessee good and marketable title in the Subject
Property in accordance with Title Standards adopted by the Florida Bar and in accordance with
law, together with all of the singular tenements, hereditaments, easements, privileges,
riparian, littoral and other rights benefiting and belonging to the Subject Property, including,
without limitation, water and canal rights or other rights (hereinafter collectively referred to as
appurtenant rights) which may have been acquired by Lessor in and to any of the foregoing in
the period commencing and including the respective dates Lessor acquired such rights, and
extending to and including the Lease Date, subject only to liens, encumbrances, exceptions or
qualifications (which existing liens, encumbrances, exceptions and qualifications are not
reimposed by this Lease) as may be approved by Lessee. Lessee shall have Forty-five (45)
calendar days from date of receiving evidence of title to examine same. If title is found
defective, Lessee shall notify Lessor in writing specifying defect(s). Upon receipt of such
notification, Lessor shall exercise reasonable efforts to cure same as quickly as possible. In
the event the objection(s) are not cured to the satisfaction of the Lessee, (a) Lessee may accept
this Lease with the existing title condition; (b) Lessee may take necessary corrective title
actions, or (c) at its option, Lessee may terminate the Lease if the Lessee determines that the
Lessor's title is defective, without either Party being liable to the other therefor. If the Lessee
elects to take corrective title actions, the Lessor shall cooperate with and assist the Lessee in
curing any title objections.
From and after the Lease Date, Lessor shall take no action which would impair or
otherwise affect title to any portion of the Subject Property, and shall record no documents in
the Public Records which would affect title to the Subject Property, without the prior written
consent of Lessee.
The Lessor agrees it shall demise and lease to the Lessee at the time of execution of
this Lease Agreement the Subject Property with good marketable, merchantable and insurable
title. The Lessee at its option may have the property surveyed by a certified licensed surveyor
at its expense, which survey shall be dated subsequent to this Lease. In the event that the
survey reflects that any of the representations and warranties set forth in this Lease are not
true and correct and /or that there are encroachments onto the Subject Property, then in the
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event of the foregoing, said survey report shall be treated in the same manner as a
representation and title exception.
Section 29.2. Lessee Not to Encumber Lessor's Interest. The Lessee shall have no
right or power to, and shall not in any way encumber the title of the Lessor in and to the
Subject Property, or the title of the Lessor's remainder or residual interest in the Leasehold
Improvements, other than by this Lease Agreement. The fee simple estate of the Lessor in the
Subject Property and the residual interest of the Lessor in the Leasehold Improvements shall
not. be in any way subject to any claim by way of lien or otherwise, whether claimed by
operation of law or by virtue or any express or implied lease or contract or other instrument
made by the Lessee and any claim to the lien or otherwise upon the Subject Property or in the
Leasehold Improvements arising from any act or omission of the Lessee shall accrue only
against the Lessee's Leasehold Estate and the Lessee's interest in the Leasehold
Improvements.
ARTICLE XXX
REIMBURSEMENT OF CITY EXPENSES
Section 30.1 Reimbursement of City Expenses. Upon execution of this Lease
Agreement by the Lessee, Lessee shall reimburse Lessor the amount of Twenty One Thousand
Eight Hundred Eighty Three Dollars and Fifty Four Cents ($21,883.54) representing the
Lessor's actual cost for surveying, appraising, certified public accounting, and advertising
services in connection with the request for proposals issued May 31, 1996 for development of
the Dinner Key Waterfront Redevelopment, less the Lessee's non-refundable cashier's check in
the amount of Twenty Five Thousand Dollars ($25,000.00) submitted with Lessee's proposal
and the sum of Six Thousand Dollars ($6,000.00) submitted as non-refundable application fees
by proposers responding to the request for proposals.
ARTICLE XXXI
LIMITATION OF LIABILITY
Section 31.1. Limitation of Liability of Lessee. It is expressly understood and agreed
by and between the Parties, anything herein to the contrary notwithstanding, that each and all
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of the representations, covenants, undertakings and agreements herein made on the part of the
Lessee while in form purporting to be the representations, covenants, undertakings and
agreements of the Lessee are nevertheless, each and everyone of them, made and intended not
as personal representations, covenants, undertakings and agreements by the Officers,
Members, Directors and Stockholders of the Lessee, or for the purpose or with the intention of
binding the Lessee's Officers, Members, Directors, and Stockholders personally; but are made
and intended for the purpose of binding the Leasehold Estate. No personal liability or personal
responsibility is assumed by nor shall at any time be asserted or enforceable against the
Stockholders, Officers, and Directors of Lessee on account of this Lease or on account of any
representation, covenant, undertaking or agreement of the Lessee in this Lease.
ARTICLE XXXII
ESTOPPEL CERTIFICATES
Section 32.1. Estoppel Certificates. The Lessor and the Lessee each agree at any time
and from time to time, so long as this Lease shall remain in effect, upon not less than Twenty
(20) days prior written request by the other Party, to execute, acknowledge and deliver to the
other Party a statement in writing certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that it is in full force and effect as modified,
stating the modifications) and the dates to which the Rent and other charges have been paid in
advance, if any, and stating whether any default under the terms of this Lease is known -by, or
any notice of default has been served by, the Party giving the certificate, it being intended that
any statement delivered pursuant to this Article may be relied upon by any prospective
purchaser of the Lessor's fee simple interest in the Subject Property or of the Lessor's
remainder interest in the Leasehold Improvements or the Lessee's interest in the Leasehold
Improvements, or by any -permitted assignee or Leasehold Mortgagee of the Lessee's
Leasehold Estate or the Lessee's interest in the Leasehold Estate or by a Subtenant of all or
any part of the Leasehold Improvements or the Subject Property, as the case may be.
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ARTICLE XXXIII
REMEDIES CUMULATIVE
Section 33.1. Remedies Cumulative. No remedy conferred upon or reserved to the
Lessor or the Lessee shall be considered exclusive of any other remedy, but shall be
cumulative and shall be in addition to every other remedy given under this Lease Agreement
or existing at law or in equity or by statute; and every power and remedy given by this Lease
Agreement to the Lessor or the Lessee may be exercised from time to time and as often as
occasion may arise, or as may be deemed expedient by the Lessor or the Lessee. No delay or
omission of Lessor or Lessee to exercise any right or power arising from any default shall
impair any right or power, nor shall it be construed to be a waiver of any default or any
acquiescence in it. The rights of the Lessor under this Lease shall be cumulative and the
failure on the part of ` the Lessor to exercise properly any rights given hereunder shall not
operate to forfeit any of the said rights..
Section 33.2. Waiver of Remedies Not To Be Inferred. No waiver of any breach of
any of the covenants or conditions of this Lease Agreement shall be construed to be a waiver
of any other breach or to be a waiver of, acquiescence in, or consent to any further or
succeeding breach of the same or similar covenant or condition.
ARTICLE XXXIV
SURRENDER AND HOLDING OVER
Section 34.1. Surrender at End of Term. On the last day of the Lease Term the
Lessee shall peaceably and quietly leave, surrender and deliver the entire Subject Property to
the Lessor, together with the Leasehold Improvements and all alterations, changes, additions
and other improvements made upon the Subject Property, and together with any and all
improvements, furniture, trade fixtures, machinery, equipment or other personal property of
any kind or nature, which the Lessee may have installed or affixed to the Subject Property or
the Leasehold Improvements for use in connection with the operation and maintenance of the
Subject Property and the Leasehold Improvements (whether or not the property is deemed to
be fixtures), in good condition with the exception of ordinary wear and tear, free and clear of
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any and all Leasehold Mortgages, liens, encumbrances and claims. At the time of the
surrender, the Lessee shall also surrender any and all security deposits and rent advances of
Subtenant's made pursuant to Article XXXV. If the Subject Property and the Leasehold
Improvements are not so surrendered, the Lessee shall repay the Lessor for all expenses which
the Lessor shall incur by reason of it, and in addition the Lessee shall indemnify, defend and
hold harmless the Lessor from and against all claims made by any succeeding Lessee against
the Lessor, founded upon delay occasioned by the failure of the Lessee to surrender the
Subject Property and the Leasehold Improvements.
Section .34.2. Rights Upon Holding Over. At the termination of this Lease Agreement
by lapse of time or otherwise, the Lessee shall yield up immediate possession of the Subject
Property and the Leasehold Improvements to the Lessor and, failing so to do, agrees, at the
option of the Lessor, to pay to the Lessor for the whole time such possession is withheld a
sum per day equal to Two Hundred (200) percent times 1/365th of the aggregate of the Rent
paid or payable to Lessor for the prior Lease`Year as set forth in Article V.
The provisions of this Article shall not be held to be a waiver by the Lessor of any
right of entry or reentry as set forth in this Lease Agreement, nor shall the receipt of a sum, or
any other act in apparent affirmance of the tenancy, operate as a waiver of the right to
terminate this Lease Agreement and the term granted for the period still unexpired for any
breach of the Lessee under this Lease Agreement.
ARTICLE XXXV
QT TUT IPA QV Q
Section 35.1. Subleasing. Lessee shall at any time during the Lease Term have the
right, to enter into a Sublease(s), subject to: i) the terms and conditions of the Sublease shall
be subject to and subordinate to this Lease; ii) the term of the Sublease shall be for a period
of time less than the Lease Term; and iii) at the commencement of each Lease Year, Lessee
shall deliver to Lessor a current list of all Subtenants. If requested by Lessor, Lessee shall
provide to Lessor copies of all Subleases and amendments thereto.
Section 35.2 Nondisturbance and Attornment. On Lessee's request, the City Manager
shall enter into appropriate agreements with Lessee's Subtenants granting assurances that such
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Subtenants will not be evicted by Lessor on termination of this Lease for Lessee's default,
provided:
(i) the Subtenant is no in default under its Sublease from Lessee;
(ii) the Subtenant has no paid Lessee more than Three (3) months Rent in advance
of the then current month; and
(iii) the Subtenant is paying such rentals under its Sublease as is comparable with
rentals payable by other Subtenants in the Subject Property for comparable space or by lessees
of comparable facilities;
(iv) the Lessor's acceptance of such tenancy shall not impose any obligations on the
Lessor which are more onerous than those imposed upon it under the provisions of the Lease,
or deprive the Lessor of any of its rights under the provisions of the Lease;
(v) the terms of the Sublease shall not effect any reduction in Lessee's obligations
(with respect to the Portion of the Subject Property demised to the Subtenant under the
Sublease) with respect to the payment of Rent, Impositions, insurance, repairs, and restoration
of damage; and
(vi) the Subtenant agrees that in the event the Lease is terminated, Subtenant shall
attorn to the Lessor.
ARTICLE XXXVI
FINANCIAL STATEMENTS
Section 36.1. Financial Statements. Within One Hundred and Twenty (120) days after
the end of each calendar year, the Lessee shall throughout the Lease Term submit to the
Lessor a copy of an unaudited financial statement of Lessee as prepared by a Certified Public
Accountant.
ARTICLE XXXVII
MODIFICATION
Section 37.1. Modification. None of the covenants, terms or conditions of this Lease
Agreement to be kept and performed by either party to this Lease Agreement shall in any
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manner be waived, modified, changed or abandoned except by a written instrument duly
signed, acknowledged and delivered by both Lessor and Lessee.
ARTICLE XXXVIII
CONVEYANCE BY LESSEE TO LESSOR
Section 38.1. Conveyance by Lessee to Lessor. Effective upon the termination of this
Lease Agreement, whether by passage of time or otherwise, the Lessee, in consideration of the
granting of this Lease Agreement by the Lessor to the Lessee, grants and conveys unto the
Lessor and Lessor's legal representatives and assigns forever all of Lessee's right, title and
interest in the Leasehold Improvements. In the event that the Lessee is contesting a
termination of this Lease, the automatic conveyance conferred by this Section shall be
ineffective to convey to the Lessor any of Lessee's right, title and interest in the Leasehold
Improvements, subject to the Lessee continuing to pay Rent and abide by the terms and
conditions of this Lease, until the final resolution of such dispute.
ARTICLE XXXIX
APPLICABLE LAW
Section 39.1. Applicable Law. This Lease Agreement shall be construed and enforced
in accordance with the laws of the State of Florida.
ARTICLE XL
NOTICES
Section 40.1. Manner of Mailing Notices. In every case where under any of the
provisions of this Lease Agreement or otherwise it shall or may become necessary or desirable
to make or give any declaration or notice of any kind to the Lessor or the Lessee, such notice
shall be in writing and shall be sent by United States certified or registered mail, postage
prepaid, return receipt requested, addressed:
if to Lessor at: City Manager
City of Miami, Florida
444 SW 2°d Avenue, 10"' Floor
Miami, FL 33130
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11
with a copy to: City of Miami
Department of Planning and Development
Asset Management Division
444 SW 2 Avenue, Suite 325
Miami, FL 33130
Additionally, during the time of construction of the Leasehold Improvements, Lessee shall
send a copy to:
City of Miami
Department of Planning and Development
Development Division.
444 SW 2 Avenue, 3rd Floor
Miami, FL 33130
and if to Lessee, at: Alan Lima
3191 Coral Way, 3`d Floor
Miami, Florida 33145
Robert Christoph
300 Alton Road, Suite 303
Miami Beach, FL 33139
with a copy to: Ramon Rasco, Esquire
Rasco Reininger, and Perez, P.A.
5200 Blue Lagoon Drive, Suite 700
Miami, Florida 33126
Each party from time to time may change its address for purposes of receiving
declarations or notices by giving notice of the changed address, to become effective ten days
following the giving of notice.
Section 40.2. Notice to Leasehold Mortgagees. All notices, demands or requests
which may be required to be given by the Lessor or the Lessee to any Leasehold Mortgagee
shall be sent in writing, by United States registered or certified mail, return receipt requested,
postage prepaid, addressed to the Leasehold Mortgagee at a place as the Leasehold Mortgagee
may from time to time designate in a written notice to the Lessor and Lessee. Copies of all
notices shall simultaneously be sent to the other of the Lessor or the Lessee, as the case may
be.
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Section 40.3. Sufficiency' of Service. Service of any demand or notice as in this
Article provided shall be sufficient for all purposes.
Section 40.4 When Notice Deemed Given or Received. Whenever a notice is
required by this Lease Agreement to be given by any Party to the other Party or by any Party
to a Leasehold Mortgagee, the notice shall be considered as having been given when a
registered or certified notice is placed in the U.S. Post Office mail as provided by this Article
and shall be deemed received on the third. business day thereafter and for all purposes under
this Lease Agreement of starting any time period after notice, the time period shall be
conclusively deemed to have commenced three business days after the giving of notice and
whether or not it is provided that a time period commences after notice is given or after notice
is received.
ARTICLE XLI
MISCELLANEOUS PROVISIONS
Section 41.1. Captions. The captions of this Lease Agreement and the index
preceding it are for convenience and reference only and in no way define, limit or describe the
scope or intent of this Lease Agreement, nor in any way affect this Lease Agreement.
Section 41.2. Conditions and Covenants. All the provisions of this Lease Agreement
shall be deemed and construed to be conditions as well as covenants, as though the words
specifically expressing or importing covenants and conditions were used in each separate
provision.
Section 41.3. Entire Agreement. This Lease Agreement (together with all of the
Exhibits and other attachments (if any) hereto, all easement agreements between the Parties
and the agreement between the Parties for the construction of the Infrastructure Improvements)
contains the entire agreement between the Parties concerning the Subject Property and the
related leasing transaction between the Parties and shall not be modified in any manner except
by an instrument in writing executed by the Parties or their respective successors or assigns in
interest. This Lease Agreement shall supersede any and all prior agreements and negotiations
between the Parties, whether oral or in writing (which are hereby expressly merged into this
Lease), including, without limitation, the Request for Unified Development Proposals for the
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Dinner .Key Waterfront Redevelopment issued by the Lessor on May 31, 1996 and the
Proposal to the Lessor submitted by the Lessee on August 30, 1996.
Section 41.4. Time of Essence as to Covenants of Lease Agreement. Subject to any
extensions expressly provided with respect thereto, time is of the essence as to the
performance of the provisions of this Lease by the Lessee and Lessor..
Section 41.5. Recording, Documentary Stamps. The Parties hereto shall, at the
request of either Party, execute a short -form lease and have it properly acknowledged for the
purpose of recording in the Public Records of Dade County, Florida. Such short -form lease
shall have included therein such of the provisions hereof as may be requested by either of the
parties. The cost of any such recordation, cost of any State of Florida documentary stamps
which legally must be attached to any or all -of said papers, and the cost of the applicable Dade
County and State transfer tax shall be paid in' full by Lessee.
ARTICLE XLII
MINORITY AND WOMEN PARTICIPATION AND
EQUAL EMPLOYMENT OPPORTUNITIES
Section 42.1. Minority and Women Participation. The Lessee shall comply with the
provisions set forth in The Minority and Women Business Affairs and Procurement Program
Ordinance of the City of Miami and the First Source Hiring Agreement, as they currently exist
and as they may be amended hereafter, both of which are attached hereto as Exhibit H and
incorporated herein.
In compliance therewith, the Lessee agrees during construction and operation of the
Leasehold Improvements; (a) it will take reasonable affirmative action in the recruitment and
recruitment advertising to attract and retain qualified minority and female contractors and
subcontractors; (b) provide a reasonable opportunity in the recruitment, recruitment
advertising and hiring for contractors and subcontractors residing within the City of Miami;
(c) will take reasonable affirmative action to retain employees regardless of race, color, place
or birth, religion, national origin, sex, age, marital status, veteran and disability status; (d)
maintain equitable principles in the recruitment, recruitment advertising, hiring, upgrading
transfer, layoff, termination, compensation and all other terms, conditions and privileges of
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employment; and (e) monitor and review personnel practices to guarantee that equal
opportunities are being provided to all employees, regardless of race, color, place of birth,
religion, national origin, sex, age, marital status, veteran and disability status.
Section 42.2. Equal Employment Opportunities. The Lessee agrees that during
construction of the Leasehold Improvements: (a) it will not discriminate against any employee
or applicant for employment because of race, creed, color or national origin and will take
affirmative action to assure that applicants are employed and that employees are treated during
employment without regard to race, creed, color or national origin; (b) post in conspicuous
places, available to employees and applicants for, employment, notices the form of which is to
be provided by the Lessor setting forth provisions of this nondiscrimination clause; (c) in all
solicitations or advertisements for employees placed by or on behalf of the Lessee state that
all qualified applicants will receive consideration for employment without regard to race,
creed, color or national origin; and (d) to send to each labor union or representative of
workers with which the construction contractor has a collective bargaining agreement or other
contract or understanding a notice, the form of which is to be provided by the Lessor, advising
the union or representative of the Lessee's commitments and posting copies of the notice
conspicuous places available to employees and applicants for employment.
Section 42.3. Affirmative Action. Lessee shall have in place an Affirmative
Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement
which will require that action be taken to provide equal opportunity in hiring and promoting
for women, minorities, the disabled and veterans. Such plan will include a set of positive
measures which will be taken to insure nondiscrimination in the work place as it relates to
hiring, firing, training and promotion. In lieu of such a policy/plan, Lessee shall submit a
Statement of Assurance indicating that their operation is in compliance with all relevant Civil
Rights laws and regulations.
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•
1]
ARTICLE XLIII
COVENANTS TO BIND AND BENEFIT RESPECTIVE
PARTIES AND TO RUN WITH THE SUBJECT PROPERTY
Section 43.1. Covenants to Run with the Subject Property. All covenants, agreements
conditions and undertakings in this Lease Agreement shall extend and inure to the benefit of
and be binding upon the successors and assigns of each of the Parties, the same as if they were
in every case named and expressed, and they shall be construed as covenants running with the
Subject Property and the Leasehold Improvements. Wherever in this Lease Agreement
reference is made to any of the Parties, it shall (unless expressly provided to the contrary in
such reference) be held to include and , apply to, wherever applicable, also the officers,
directors, successors and assigns of each Party, the same as if in each and every case so
expressed.
ARTICLE XLIV
UNAVOIDABLE DELAY
Section 44.1. Unavoidable Delay(s). For the purpose of any of the provisions of this
Lease (except the payment of Minimum Annual Rent or Percentage Rent), neither the Lessor
nor the Lessee, as the case may be, nor any successor in interest, shall be considered in breach
of or in default of any obligations under this Lease, including but not limited to the preparation
of the Subject Property for development, the performance of the Conditions Precedent to
Lessee taking Possession of the Subject Property, the commencement and completion of
construction of the Leasehold Improvements, or progress in respect thereto in the event of an
Unavoidable Delay(s), in accordance with the provisions of Section 44.2 below.
Section 44.2. Manner of Notice of Unavoidable Delay(s) and Conditions With Respect
to Performance of Obligations. In the event of Unavoidable Delay(s), the time for
performance of obligations, covenants, and/or agreements which are affected by the
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Unavoidable Delay(s) shall be extended for the period of time of the Unavoidable Delay(s) or
for such period of time as may be necessary under the circumstances, provided that the Party
seeking the benefit of the provisions of this Section shall:
(a) As soon as reasonably possible, but no later than Thirty (30) days after such Party
shall have become aware of the Unavoidable Delay(s), give notice, in writing, to
the other Party of the Unavoidable Delay(s), which notice shall specify which of the
obligations, covenants, and/or agreements of this Lease the notifying Party is
unable to perform at the time of such notice and how the Unavoidable Delay(s) has
affected the Party's performance of such obligations, covenants, and/or agreements;
(b) As soon as reasonably possible, the Party claiming such Unavoidable Delay(s) shall
commence and shall continue diligently the performance of such obligations,
covenants, and/or agreements so delayed.
Section 44.3. Payment of Minimum Annual Rent and/or Percentage Rent in the Event
of an Unavoidable Delay. Notwithstanding the foregoing, the Parties agree that Lessee's
obligations with respect to the payment of Minimum Annual Rent and/or Percentage Rent shall
in no event be abated, however the Lessee may, at Lessee's option defer the payment of
Minimum Annual Rent and/or Percentage Rent (provided all sums so delayed shall be paid by
Lessee within Twenty Four (24) months of the date that the business is reopened) due to an
Unavoidable Delay, but only if such Unavoidable Delay results in Lessee's business at the
Subject Property being closed to the public for more than Seven (7) days. In the event that
there are business interruption insurance proceeds paid to the Lessee in connection with the
Unavoidable Delay with respect to the Minimum Annual Rent and/or Percentage Rent, and if
such proceeds are less than the total Minimum Annual Rent and/or Percentage Rent due, then
the difference may be deferred as provided above.
ARTICLE XLV
GENERAL PROVISIONS
Section 45.1. Conflict of Interest. Lessee agrees to comply with the conflict of
interest provisions of the Miami City Code, Dade County Code and the State of Florida. No
member, official, or employee of the Lessor shall have any personal interest, direct or,
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indirect, in this Lease Agreement, nor shall any member, official, or employee participate in
any decision relating to this Lease Agreement which affects his or her personal interests or the
interests of any other entity or Person in which he or she is, directly or indirectly, interested.
No member, official, or employee of the Lessor shall be personally liable to the Lessee, its
successors and assigns, or anyone claiming by, through or under the Lessee or any successor
in interest to the Subject Property, in the event~ of any default or breach by the Lessor or for
any amount which may become due to the Lessee, its successors and assigns, or any successor
in interest to the Subject Property, or on any obligation under the terms of this Lease
Agreement.
Section 45.2. Brokerage. The Lessee and the Lessor each represent and warrant to
the other that neither has dealt with any broker or finder in connection with the transactions
contemplated and each agrees to indemnify, defend and hold the other harmless of and from
any and all manner of claims, including, but not limited to, reasonable attorneys fees and
expenses, incurred by the other party and arising out of any claim by any broker or finder if it
is ultimately determined that either party has dealt in contravention of its representation and
warranty.
Section 45.3. Assignability and Binding Effects. Subject to all provisions respecting
the rights of assignment or Subleasing, this Lease Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto.
Section 45.4. Duplicate Originals. This Lease Agreement may be executed in any
number of copies, each of which shall constitute an original of this Lease Agreement.
Section 45.5. No Third Party Beneficiaries. Nothing in this Lease shall confer upon
any person, other than the Parties hereto and their respective successors and permitted assigns,
any rights or remedies under or by reason of this Lease; provided, however, that a Leasehold
Mortgagee or its affiliated designee or nominee shall be a third party beneficiary hereunder to
the extent such Leasehold Mortgagee or such designee or nominee is granted rights hereunder.
Section 45.6. Authority.
(a) The Lessor and Lessee represent to each other as follows:
(i) That each has, and has exercised, the applicable Legal Requirements
necessary to adopt, execute and deliver this Lease Agreement and perform its obligations; and
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(ii) That this Lease Agreement has been duly executed and delivered by each
and constitutes a valid and binding obligation of each enforceable in accordance with its terms,
conditions, and provisions; and
(b) Lessor specifically, represents that the execution and delivery of this Lease
Agreement has been duly authorized and is in accordance with and pursuant to all Applicable
Laws (including without limitation those of the Lessor) and the Constitution of the State of
Florida.
Section 45.7. Waiver of Jury Trial. The Parties hereby knowingly, irrevocable,
voluntarily and intentionally waive any right either may have to a trial by jury in respect of
any action, proceeding or counterclaim based on this lease, or arising out of, under or in
connection with this Lease or any amendment or modification of this Lease, or any other
agreement executed by and between the parties in connection with this Lease, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any Party
hereto. This waiver of jury trial provision is a material inducement for the Lessor and Lessee
entering into the subject transaction.
Section 45.8. Attorney's Fees and Expenses. In the event of any litigation between the
parties, all expenses, including reasonable attorneys fees and, court costs, at both the trial and
appellate levels incurred by the prevailing party, shall be paid by the non -prevailing party.
Section 45.9. Independent Parties. It is understood and agreed by the Parties hereto
that this Lease does not create a fiduciary or other relationship between Lessor and Lessee,
other than Lessor and, Lessor or contracting parties, as applicable. Lessor and Lessee are and
shall be independent contracting parties, and nothing in this Lease is intended to make either
Party a general or special agent, joint venturer, partner, or employee of the other for any
purpose.
Section 45.10. No Liability for Acts of Other Party. Lessee shall not sign any
contract, application for any lease or permit, or do anything that may result in liability to the
Lessor for any indebtedness or obligation of Lessee, unless expressly provided herein or
approved in writing by the Lessor. Except as expressly authorized in writing, neither Lessor
nor Lessee shall make any express or implied agreements, warranties, guarantees, or
representations, or incur any debt except as to state, or federal grants and loans agreed to by
97,= 774
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Lessor in the name of or on behalf of the other, or represent that their relationship is other
than Lessor and Lessee, unless otherwise agreed to herein for the management and operation
of the Subject Property and neither Lessor nor Lessee shall be obligated by or have any
liability under any agreements or representations made by the other that are not expressly
authorized as aforesaid.
Section 45.11 Consents and Approvals. The Lessor agrees that whenever in this Lease
the Lessor's consent or approval or act is required or permitted, such consent, approval or act
shall not be unreasonably withheld or delayed; and that whenever in this Lease, the Lessor
may require or require some act or thing of Lessee, such request or requirement shall be
reasonable. Lessee agrees that the response to such request or requirement shall not be
unreasonably withheld, conditioned or delayed. At all times during the Term of this Lease,
each Party shall conduct itself in a commercially reasonably manner.
Section 45.12. Approval by the Oversight Board. The State of Florida has appointed
an Emergency Financial Oversight Board (the "Oversight Board") which is empowered to
review and approve all pending City of Miami contracts. As a result, contracts shall not be
binding on the Lessor until such time as they have been approved by the. Oversight Board.
Execution of this Lease Agreement by the City Manager shall constitute evidence of its
approval by the Oversight Board.
In witness; the. Lessor has caused this Lease Agreement to be executed in its name and
on its behalf by the City Manager of the City of Miami, Florida the City Clerk of the City of
Miami, Florida, and the Lessee has signed as of the date and year first above written.
LESSOR:
ATTEST: CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Walter Foeman Edward Marquez
City Clerk City Manager
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•
APPROVED AS TO INSURANCE
REQUIREMENTS:
APPROVED AS TO FORM AND
CORRECTNESS:
Frank Rollason, Chief A. Quinn Jones, III
Division of Risk Management City Attorney
LESSEE:
Grove Harbour Marina and Caribbean
Marketplace, LLC., a Florida Limited
ATTEST: Liability Company
By: By:
Corporate Secretary Alan Lima, President
Harbour Management Group, Inc.
ATTEST
By: By:
Corporate Secretary Robert Christoph, President
Southern Cross Marinas, L.C.
LKK/W 196
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•
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO: Honorable Mayor and Members
p
mmission
e
' FROM: City Manag
RECOMMENDATION
• 16
DATE: OCT 2 1 jgo f FILE:
Proposed Lease & Development
SUBJECT: Agreement with Grove Harbour
Proposed Resolution; Executive
REFERENCES: Summary; Lease Agreement
ENCLOSURES:
It is respectfully recommended that the City Commission adopt the attached Resolution
authorizing the City Manager to execute a Lease and Development Agreement, in
substantially the form attached, with Grove Harbour Marina and Caribbean Marketplace,
LLC, for the planning and design, construction, leasing and management of a commercial
and recreational multiple use facility including a full service boat yard, marina, marine
related retail uses and a public market with adaptive reuse of two existing historic hangar
structures on a 13.55 acre site on Dinner Key for a period of forty years; requiring said
Lessee to make a total capital investment in said property of not less than $5,000,000; paying
to the City a minimum annual lease payment of not less than $300,000 or a percentage of
revenues as specified herein, whichever is greater, including a rent escalation provision; and,
subject to such additional conditions as are provided in the Lease and Development
Agreement.
BACKGROUND
The Department of Planning and Development has coordinated the unified development
project process for redevelopment of the Dinner Key waterfront property located at 2640
South Bayshore Drive, Miami, Florida.
On July 23, 1997, the City Commission adopted Resolution No. 97-493 which accepted the
proposal submitted by Grove Harbour Marina and Caribbean Marketplace, LLC on August
30, 1996, for the redevelopment of the 13.55 acre waterfront property located at 2640 South
Bayshore Drive on Dinner Key and authorized the City Manager to enter into lease
negotiations.
The staff has negotiated a Lease and Development Agreement which governs detailed
arrangements with Grove Harbour Marina and Caribbean Marketplace, LLC for the planning
and design, construction, leasing and management of a commercial and recreational multiple
use facility that includes adaptive reuse of two existing hangar structures.
l 9 6 774
Honorable Mayor and Members
of the City Commission
Page Two
Under the terms of the proposed Agreement, the City shall receive the greater of a minimum
annual lease payment in the amount of $300,000 or a percentage of revenues equal to:
10% of gross revenues from the marina;
10% of gross revenues from the boatyard;
5% of gross revenues from the marina fueling facility;
5% of gross revenues from the marina services facility
or Lessee leases to a subtenant for such use, then.
5% of the floor rent received by Lessee plus
25% of the percentage rent received by Lessee;
5% of gross revenues from the restaurants;
2% of gross revenues received by Lessee from the
marketplace vendors;
from marketplace subtenants located outside of the historic
hangars (stand-alone):
10% of the floor rent received by Lessee plus
50% of the percentage rent received by Lessee
until the City's portion equals 3% of gross
revenues from the subtenant's operations,
thereafter, 37.5% of the percentage rent received
by Lessee; and,
from marketplace subtenants located within the historic
hangars:
10% of floor rent received by Lessee plus
37.5% of gross revenues received by Lessee.
An Executive Summary of the proposed Lease and Development Agreement is attached.
2 9 T/ I 714
Executive Summary
Lease and Development Agreement
between the
City of Miami, Florida
and
Grove Harbour Marina and Caribbean Marketplace, LLC
Organizational Structure & Ownership Composition:
The Lessee is a Florida Limited Liability Company composed. of:
70•/o Harbour Management Group, Inc., a Florida Corporation
President: Alan Lima
Shareholders Alan Lima
Felix Lima
Antonio Zamora, Jr.
Felix Sabates
Manty Morese Sabates
Carl Straw
30% Southern Cross Marinas, LC, a Florida Limited Liability Company
President: Robert Christoph
Shareholders: Robert Christoph
Carlos Lacasa
Julio G. Rebull
Ownership is 83% minority; professional and consultants are 75% minority
Lease Term (Section 3.1):
Term of 40 years
Development Program/Leasehold Improvements (Sections 4.1, 4.2, 4.4-4.7):
Grove Harbour Marina and Caribbean Marketplace development of a multiple
use facility including commercial and recreational uses with adaptive reuse of
two existing historic hangar structures on a 13.55 acre site (6.95 upland acres
and 6.6 submerged acres) to include:
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A full service marina with at least 122 wet slips (includes 52 slips
that the City is constructing); approximately 140 dry slip storage
spaces for vessels larger than 28 ft. in length; ancillary facilities and
services
A full service boatyard with the capability of handling repair and
servicing some 40 boats at any one time; capability of boat owners
to repair individual boats
A marine retail facility of approximately 10,000 sq.ft.
A marine fueling facility
A public marketplace emphasizing the specialty, unique, ethnic, and
exotic aspects of subtropical and tropical cultures and cuisine
Improvements valued at a minimum investment of $5 million
Construction to commence 30 days after the issuance of a building permit and be
completed within 18 months
A Performance and Payment Bond naming the City as owner or a Letter of
Credit shall be required from Lessee in an amount equal to 100% of the cost of
construction of the improvements plus professional design fees associated with
the project
All alterations and modifications to the exterior of the existing, historic hangars
shall meet the Secretary of the Interior's Standards for Rehabilitation and shall
be approved by the City's Historic and Environmental Preservation Board
(Section 7.4).
Date of Possession (Section 4.3):
Lessee to take possession of property 30 days after the following conditions
have been met:
The property is clear of existing tenancies
The Development Plans have been reviewed and approved by the
City Manager as being in substantial accordance with the
conceptual site plan
2
4 �-
The City shall have delivered the environmental permits for the
expansion of the marina beyond the 52 slips that the City is
building
Evidence of construction and/or permanent financing of
improvements has been provided, reviewed and accepted by the
City Manager that such financing has been committed
The property has been remediated and restored to the condition
required by environmental law, pursuant to the Environmental
Liability section the Lease (summarized below) and the City shall
have received an Environmental Condition Acceptance Notice
Amount and Payment of Rent (Section 5.1-5.8):
The greater of
The Minimum Annual Rent in an amount of
300,000
or
A Percentage of Revenues equal to:
10% of Gross Revenue from the Marina
10% of Gross Revenue from the Boatyard
5% of Gross Revenue from the Marine Fueling Facility
5% of Gross Revenue from Marina Services Facilities or
if Lessee Leases to a Subtenant for Such Use, then
5% of the Floor Rent Received by Lessee plus
25% of the Percentage Rent Received by Lessee
5% of Gross Revenue from Restaurants
2% of Gross Revenue Received by Lessee from Marketplace
Vendors
From Marketplace Subtenants Located Outside of the Hangars:
10% of the Floor Rent Received by Lessee plus
50% of the Percentage Rent Received by Lessee Until
City's Portion Equals 3% of Gross Revenue From
Subtenant's Operations. Thereafter,
37.5% of Percentage Rent Received by Lessee
3
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From Marketplace Subtenants Located Within Hangars:
10% of Floor Rent Received by Lessee plus
37.5% of Gross Revenue Received by Lessee
Minimum Annual Rent to be adjusted every 5 years based on an appraisal of fair
market rent, beginning at the end of the 7' lease year
Payment of Security Deposit (Section 5.3):
Simultaneously with the execution of the Lease, Lessee to deposit $150,000 with
the City as a Security Deposit
City Participation on Sale or Transfer of Lease (Section 8.9):
In the event of a sale or transfer of 15% or more of Lessee's membership
interest, City to participate by receipt of 3% of net proceeds received by Lessee
Payment of Taxes (Sections 10.1-10.5):
Lessee to pay all taxes, assessments and other impositions. Should the Lessee
obtain a tax exemption for the property and/or the leasehold improvements, the
Lessee to pay the City an amount equal to what the City's portion of the ad
valorem taxes would be, "City Payment in Lieu of Tax"
Insurance (Sections 11.1-11.7):
At the Lessee's sole cost and expense, all required insurance to be carried and
maintained, as stipulated in the Lease .
Environmental Liability (Sections 20.1-20.11):
Costs of environmental inspections and audits to be paid by Lessee
If inspections find the property in a condition acceptable to Lessee, then Lessee
to deliver to City an Environmental Condition Acceptance Notice and no further
action takes place
If inspections reveal an environmental condition that must be remediated, then
Lessee to pay the first $50,000 of the costs, the City to pay the next $50,000 of
the costs, and the parties to share equally in the cost of the next $500,000.
6 �,n .,.., 97— 774
In the event remediation costs should exceed $600,000, then the parties will
attempt to reach an agreement as to the apportionment, with either party having
the right to cancel the Lease
Additional Benefits to the City (Section 24.1):
Lessee to contribute to the City an amount equal to 50% of the taxes abated for
the historic property for the period Lessee is eligible to receive any such
abatement
Reimbursement of City Expenses (Section 30.1):
Upon execution of the Lease, Lessee to reimburse the City $21,883.54 for direct
costs associated with issuing the RFP for the project
5
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