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HomeMy WebLinkAboutR-95-0865k' t l J-95-875 11/8/95 95— 865 RESOLUTION NO. A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING THE CITY MANAGER TO ENTER INTO A LEASE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH THE MIAMI OUTBOARD CLUB, A NON- PROFIT CORPORATION, FOR THE LEASING OF CERTAIN REAL PROPERTY AND IMPROVEMENTS THEREON, WITHIN WATSON ISLAND, ALONG WITH BAY BOTTOM LANDS, SAID LEASE TO BE: (1) FOR AN INITIAL PERIOD OF TWENTY YEARS WITH AN OPTION TO RENEW FOR TWO ADDITIONAL FIVE-YEAR PERIODS; (2) AT AN INITIAL MONTHLY RENTAL OF x $5,417.00 PLUS TEN PERCENT OF GROSS RESTAURANT REVENUES IN EXCESS OF $10,000 PER MONTH; (3) PROVIDING FOR COMMUNITY SERVICE CREDITS; AND (4) IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED IN SAID LEASE AGREEMENT. WHEREAS, the Miami Outboard Club has occupied a portion of Watson Island for many years; and WHEREAS, the lease between the Miami Outboard Club and the City of Miami for certain real property and improvements including certain bay bottom lands has expired; and WHEREAS, Section 29-D of the Charter of the City of Miami, Florida, as amended, provides that the City Commission may waive competitive bidding and referendum requirements when entering into a lease or extending an existing lease with a non-profit, noncommercial, water -dependent organization which provides or seeks to provide marine -recreation services and/or activities to the community at any City -owned waterfront property, provided 'IATTACH MEFdT(5) CONTAINED :CITY COM assioN MEETING OF DEC 0 7 1995 [� CC Resolution No. certain conditions are met pertaining to public access, public ;r use, waterfront setback and view -corridor requirements, fair return to the City, compliance with the master plan and requirements prescribed by ordinance pertaining to an organization using City -owned facilities; and WHEREAS, the City Commission has found it to be in the best interest of the citizens of Miami to waive competitive bidding and referendum requirements as provided for in Section 29-D of the. City Charter and to enter into a lease agreement with the Miami Outboard Club; 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 F j Section. Section 2. The City Manager is hereby authorized-/ to j enter into a lease agreement, in substantially the attached form, i with the Miami Outboard Club, a non-profit corporation, for the leasing of certain real property and improvements thereon, within 1 Watson Island, along with bay bottom lands, said lease to be: ;III (1) for an initial period of twenty years with an option to renew for two additional five-year periods; (2) at an initial monthly rental of $5,417.00 plus ten percent of gross restaurant revenues 1 i� 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. - 2 - 95-- 865 in excess of $10,000 per month; (3) providing for community service credits and (4) in accordance with the terms and conditions contained in said lease agreement. Section 3. This Resolution shall become effective immediately upon its adoption. A .T CIT TTQJd7�NNO J , I I I W430:JOB:B r day of December 1995. kc7P S E EN P. CLAR , MAYOR 95- 865 95- 865 4.6 4.7 4.8 4.9 4.10 4.11 INDEX DESCRIPTION AND TERM DESCRIPTION OF LEASE PROPERTY ADDITIONAL PROPERTY TERM OF LEASE PURPOSE OF USE AND OCCUPANCY PURPOSE OF USE AND OCCUPANCY OF LEASE PROPERTY LIMITATIONS ON COMMERCIAL ACTIVITIES ADDITIONAL LIMITATIONS AND RESTRICTIONS ON LESSEE'S USE OF LEASE PROPERTY CONTINUOUS DUTY TO OPERATE HAZARDOUS MATERIALS HANDLING OF HAZARDOUS MATERIALS INDEMNIFICATION DISCLOSURE, WARNING AND NOTICE OBLIGATIONS ENVIRONMENTAL TESTS AND AUDITS SURVIVAL OF LESSEE'S OBLIGATIONS , CONSIDERATION RENT PERCENTAGE RENT COMMUNITY SERVICE CREDIT COMMUNITY SERVICES ADJUSTMENT OF BASE MONTHLY RENT, COMMUNITY SERVICE CREDIT & BASE RESTAURANT REVENUES SALES TAX SECURITY DEPOSITS ADDITIONAL PAYMENTS INTEREST ON LATE PAYMENTS OVERPAYMENT AND UNDERPAYMENT SPECIAL ASSESSMENTS OR TAXES 4.12 PAYMENT OF AD VALOREM TAXES 2 LESSOR LESSEE 95- 865 ARTICLE XII 12.1 12.2 12.3 RECORDS AND AUDITING RECORDS OF SALE AUDIT LICENSES; COMPLIANCE WITH LAWS LICENSES AND PERMITS COMPLIANCE WITH LAWS ALTERATIONS AND IMPROVEMENTS LESSEE'S ALTERATION OF IMPROVEMENTS INITIAL IMPROVEMENTS LESSOR'S IMPROVEMENTS MECHANICS' LIENS PAYMENT AND PERFORMANCE BONDS LESSOR'S INSPECTION AND RIGHT OF ENTRY INSPECTION BY LESSOR LESSOR'S RIGHT OF ENTRY UTILITY CHARGES UTILITIES NO REPRESENTATION BY LESSOR CONDITION OF LEASE PROPERTY MAINTENANCE AND REPAIR MAINTENANCE AND REPAIR OF LEASE PROPERTY PREVENTIVE MAINTENANCE AND SERVICES RESERVE FUNDS FOR CAPITAL IMPROVEMENTS INDEMNIFICATION AND INSURANCE INDEMNIFICATION AND HOLD HARMLESS INSURANCE DAMAGE OR LOSS TO LESSEE'S PROPERTY 3 ARTICLE XV ASSIGNMENTS AND SUBLETTING 15.1 ASSIGNMENT AND SUBLETTING OF LEASE PROPERTY 15.2 PROCEDURE FOR TRANSFER 15.3 ADJUSTMENT TO RENTS AS A RESULT OF A TRANSFER 15.4 NO RELEASE OF LESSEE 15.5 EVENT OF BANKRUPTCY ARITICLE XVI OWNERSHIP OF IMPROVEMENTS 16.1 OWNERSHIP OF IMPROVEMENTS ARTICLE XVII SIGNAGE 17.1 SIGNS ARTICLE XVIII DEFAULT PROVISIONS 18.1 DEFAULT - 18.2 REPEATED DEFAULTS 18.3 LESSOR'S RIGHT TO CURE LESSEE'S DEFAULT ARTICLE XIX NOTICES , 19.1 NOTICES ARTICLE XX MISCELLANEOUS PROVISIONS 20.1 INGRESS AND EGRESS 20.2 SUCCESSORS AND ASSIGNS 20.3 SURRENDER OF LEASE PROPERTY 20.4 AMENDMENTS 20.5 AWARD OF AGREEMENT 20.6 CONFLICT OF INTEREST 20.7 CONSTRUCTION OF AGREEMENT 4 LESSOR LESSEE 95- 20.8 COURT COSTS AND ATTORNEYS' FEES 20.9 WAIVER OF JURY TRIAL 20.10 SEVERABILITY 20.11 WAIVER 20.12 CAPTIONS 20.13 RADON 20.14 NO RECORDATION 20.15 TRIPLICATE ORIGINALS ARTICLE XXI HOLDING OVER 21.1 HOLDING OVER ARTICLE XXII QUIET ENJOYMENT 22.1 QUIET ENJOYMENT ARTICLE XXIII AFFIRMATIVE ACTION 23.1 AFFIRMATIVE ACTION 23.2 NONDISCRIMINATION ARTICLE XXIV MINORITY PROCUREMENT 24.1 MINORITY/WOMEN BUSINESS UTILIZATION ARTICLE XXV ENTIRE AGREEMENT 25.1 ENTIRE AGREEMENT EXHIBIT A LEASE PROPERTY INCLUDING IMPROVEMENTS AND BUILDINGS EXHIBIT B ADJACENT AREA EXHIBIT C INITIAL IMPROVEMENTS 5 LESSOR LESSEE- 90 ESSEE-0 5 - 865 0 LEASE AGREEMENT This Lease Agreement (the "Lease"), is made and entered into this day of 1995, by and between the City of Miami, a municipal corporation of the State of Florida (hereinafter called the "Lessor") and the Miami Outboard Club, a non-profit corporation (hereinafter called the "Lessee"). WITNESSETH WHEREAS, the Miami Outboard Club, a Florida not -for -profit corporation, since its occupancy of a portion of Watson Island has provided the following public services; 1. Taught small boating, water skiing, fishing, navigation regulations, water safety and other allied subjects to its members, to the youth of the area and to the public; 2. Established and maintained, not only for itself, in cooperation with the United States Coast Guard and the City of Miami, a radio patrol team which has been of service in times of emergency as well as boating regattas, all of which has been of benefit to the general welfare of the City of Miami and its inhabitants; 3. Established and conducted regattas which have brought and will continue to bring international publicity to Miami; 4. -"--Combatted, through its activities in an affirmative manner, juvenile delinquency in the City of Miami; 5. Aided in providing facilities for small boating in the City of Miami; 6. Pioneered small boating in the Miami area and this pioneering has aided in establishing small boating as a major economic asset to the Miami area; 7. Volunteered charitable work to the community, including the feeding of the elderly and low income housing seniors, participation in hosting Sister City International, 6 LESSOR LESSEE 95- 865 I Baysioe cleanup, Boys Town outings, hosting charitable events for the City of Miami Police Department, Florida Highway Patrol, Florida Marine Patrol and supporting Camillus House and the Cancer Society. WHEREAS, on November 2, 1993, the electorate of the City of Miami approved Charter Amendment No. 1 thereby amending the Charter of the City of Miami to establish a procedure for waiving competitive bidding and referendum requirements when entering into a lease or extending an existing lease with a nonprofit, noncommercial, water -dependent organization which provides or seeks to provide marine -recreation services and/or activities to the community at any city -owned waterfront property, provided certain conditions are met pertaining to public access, public use, waterfront setback and view -corridor requirements, fair return to the City, compliance with the master plan and requirements prescribed by ordinance pertaining to an organization using city -owned facilities; and WHEREAS, the Commission of the City of Miami, Florida, by Resolution No. passed and adopted on 1995, determined that it is in the best interest of the City of Miami to enter into a lease agreement with the Miami Outboard Club for the provision of marine -recreation services in accordance with the provisions of Section 29-D of the Charter of the City of Miami; NOW, THEREFORE, in consideration of the premises and mutual covenants herein after contained •to be observed and performed, the parties hereto do hereby covenant and agree as follows: 7 LESSOR LESSEE I ARTICLE I DESCRIPTION AND TERM 1.1 DESCRIPTION OF LEASE PROPERTY The Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor the following real property and the improvements thereon, within Watson Island Park along with bay bottom lands, in the City of Miami, Dade County, Florida (hereinafter the "Lease Property"), as described in Exhibit A which is attached hereto and made a part hereof. 1.2 ADDITIONAL PROPERTY In the event the public access road lying within the area identified as "Adjacent Area" as described and depicted in Exhibit B attached hereto and made a part hereof, is realigned within two years of the Effective Date (December 31, 1997), or if Lessee elects to realign said road as provided below, to a route outside of Adjacent Area; the City Manager and the Lessee shall execute a modification to this Lease modifying the legal description of the Lease Property to include the Adjacent Area, less any portion which may be dedicated for vehicle access purposes. In that event, this Lease shall cover and demise the Lease Property and Adjacent Area, and reference to the Lease Property in this Lease shall be deemed to include the Adjacent Area. At such time, the Lessee shall provide adequate vehicle parking within the Lease Property for its patrons and employees. In the event the public access road is not realigned by December 31, 1997, Lessee may, at its sole cost and expense, realign said road. Lessee shall notify Lessor in writing by January 31, 1998 of its intent to realign or not realign the public access road. In the event Lessee elects to construct and realign said road, at its sole cost and expense, the City Manager and Lessee shall enter into a Letter Agreement setting forth certain conditions, including but to limited to, design standards, insurance requirements and time frames for construction. The 8 LESSOR LESSEE 95- 865 construction of this road shall be coordinated with Lessor, the proposed development of Parrot Jungle and any infrastructure improvements which may take place on Watson Island. In the event, the road is not realigned by December 31, 1997, and the Lessee elects not to realign the road, Lessee shall have shall have until December 31, 1998 to provide adequate vehicle parking within the Lease Property for its patrons and employees. 1.3 TERM OF LEASE The Term of this Lease shall be for a twenty (20) year period commencing January 1, 1996 (hereinafter the "Effective Date") and expiring on December 31, 2015, unless sooner terminated as provided herein. Lessee shall have the option, provided that no Event of Default, as this term is defined in Section 18.1 herein, has occurred and is continuing to extend the term of this Lease for two (2) additional five (5) year periods upon the same terms and conditions contained in this Lease, except for as pertaining to the Term, (hereinafter the "Additional Terms"). If Lessee elects to exercise its option, Lessee must deliver written notice of its intent to the Lessor six (6) months in advance of expiration of the Term or of the first Additional Term, but no egdier than twelve (12) months prior to the expiration of the Term or the first Additional Term. In the event any option to extend the original term is exercised, the Lessor will retain the Security Deposit set forth in Section 4.7 of this Lease, for the same purposes as described in said Section. The original Term and -any Additional Term shall be collectively referred to as the "Lease Term". ARTICLE II PURPOSE OF USE AND OCCUPANCY 2.1 PURPOSE OF USE AND OCCUPANCY OF LEASE PROPERTY Lessee shall use the Lease Property to conduct the usual functions incidental to boat club operations, subject to the limitations contained in this Section and other applicable provisions of this Lease. The Lease Property shall not be used for any other purpose without LESSOR LESSEE 95- 865 the prior written consent of the City Manager, which consent may be withheld in the City Manager's sole discretion. This Lease and all rights of Lessee hereunder shall, at the option of - the Lessor., cease and terminate upon discontinuance of the stated use and operation of the Lease Property, after having first been given written notice by Lessor of the violation and/or default as provided in Section 18.1 and after having first been given the opportunity to cure said violation within thirty (30) days. 2.2 LIMITATIONS ON COMMERCIAL ACTIVITIES Lessee may engage in the following commercial activities but only to the extent necessary to service the Club members and their guests and to enhance public access to and utilization of the Lease Property and only to the extent specifically authorized as follows: (i) Lessee may sell food and beverages, including alcoholic beverages, and Club memorabilia to Club members and their guests; (ii) Lessee may sell food and beverages excluding alcoholic beverages to the general public; (iii) Lessee may charge fees to Club members for the storage of boats (wet and dry), dockage fees, membership dues, initiation fees, or use fees for rental of the Clubhouse for use by Club members. 2.3 ADDITIONAL LIMITATIONS AND RESTRICTIONS ON LESSEE'S USE OF LEASE PROPERTY Only minor repairs and servicing of Club members' boats shall be permitted on the Lease Property. The Lease Property shall not be used for the purpose of major maintenance or overhauling of Club members' boats or craft. Except for the refilling by a licensed company of propane fuel tanks for cooking purposes, there shall be no sale or dispensing of fuel on the Lease Property. 10 LESSOR LESSEE 9 5 w 865 2.4 CONTINUOUS DUTY TO OPERATE Except where the Lease Property is rendered untenantable by reason of fire or other casualty, Lessee shall at all times during the term of this Lease (i) occupy the Lease Property upon the Effective Date; (ii) shall thereafter continuously conduct operations in the Lease Property in accordance with the terms of this Lease and shall at all times keep the Lease Property fully stocked with materials, trade fixtures and furnishings necessary and proper to operate the Lease Property and (iii) keep the Lease Property open for operation during hours established from time to time as approved by Lessor's City Manager ("Required Operating Hours"). As of the date hereof the minimum Required Operating Hours of the Lease Property are Sunday through Saturday, excluding holidays, from 9:00 AM to 5:00 PM and the minimum Required Operating Hours of the food and beverage operations are Monday through Saturday, excluding holidays, from 11:30 AM to 2:30 PM. If the Lessee fails or refuses to satisfy any of the foregoing requirements in items (i) through (iii), then in such event Lessor shall have the right, in addition to all remedies herein provided for Default, to collect, and Lessee shall be obligated to pay, as Additional Payments, fifty dollars and 001100 ($50.00) for each day that Lessee does not comply with said requirements. I . ARTICLE III HAZARDOUS MATERIALS 3.1 HANDLING OF HAZARDOUS MATERIALS Lessee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental I I LESSOR LESSEE �5- 865 protection or the use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", under any such laws, ordinances or regulations (collectively "Hazardous Materials"). Lessee shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Lease Property required for Lessee's use of -any Hazardous Materials in or about the Lease Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Lessor recognizes and agrees that Lessee may use materials in normal quantities that are applicable to the use of the Lease Property for the purposes stated herein and that such use by Lessee shall not be deemed a violation of this Section, so long as the levels are not in violation of any Hazardous Materials Laws. _ Lessee shall, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result 'af a release of Hazardous Materials in or about the Lease Property, caused by the placement of Hazardous Materials in or about the Lease, Property, or used by Lessee or at Lessee's direction or by Lessee's failure to comply with any Hazardous Materials Laws. Upon termination or expiration of the Lease, Lessee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Lease Property by Lessee or its members or guests or at Lessee's direction to be removed from the Lease Property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. Lessor acknowledges that it is not 12 LESSOR LESSEE 95- 865 { the intent of this Article ill to prohibit Lessee from operating the Lease Property for the use described in Section 2.1. Lessee may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to all applicable governmental requirements. 3.2 INDEMNIFICATION Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and expenses (including attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by the presence in or about the Lease Property of any Hazardous Materials placed in or about the Lease Property or used by Lessee or at Lessee's direction or by Lessee's failure to comply with any Hazardous Materials Law or in connection with any removal, remediation, cleanup, restoration and materials required hereunder to return the Lease Property and any other property of whatever nature to their condition existing prior to the appearance of the Hazardous Materials. 3.3 DISCLOSURE, WARNING AND NOTICE OBLIGATIONS , Lessee shall comply with all laws, ordinances and regulations in the State of Florida regarding the disclosure of the presence or danger of Hazardous Materials. Lessee acknowledges and agrees that all reporting and warning obligations required under the Hazardous Materials Laws are the sole responsibility of Lessee, whether or not such Hazardous Materials Laws permit or require Lessor to provide such reporting or warning, and Lessee shall be solely responsible for complying with Hazardous Materials Laws regarding the disclosure of, the presence or danger of Hazardous Materials. Lessee shall immediately notify Lessor, in writing, of any complaints, notices, warning, reports or asserted violations of which Lessee becomes aware relating to Hazardous Materials on or about the Lease Property. Lessee shall also immediately notify Lessor if Lessee knows or has reason to believe a 13 LESSOR LESSEE 95- 865 i complaint, notice, warning, report or asserted violation will be released on or about the Lease Property. 3.4 ENiVIRONMENTAL TESTS AND AUDITS Lessee shall not perform or cause to be performed, any Hazardous Materials surveys, studies, reports or inspections, relating to the Lease Property without obtaining Lessor's advance written consent, which consent will not be unreasonably denied. At any time during the Lease Term, Lessor shall have the right to enter upon the Lease Property in order to conduct appropriate tests to establish whether the Lease Property is in compliance with all applicable Hazardous Materials Laws. 3.5 SURVIVAL OF LESSEE'S OBLIGATIONS The respective rights and obligations of Lessor and Lessee under this Article III shall survive the expiration of termination of this Lease. ARTICLE IV CONSIDERATION 4.1 RENT The Minimum Monthly Guaranteed Rental (hereinafter:the "Minimum Guarantee") for the Lease Property, which Lessee hereby agrees to pay in advance to the Lessor on the 1st day of each month, and Lessor hereby agrees to accept, shall be equal to the Base Monthly Rent (as hereinafter defined) less the Average Monthly Community Service Credit (as hereinafter defined). As of the Effective Date, the Base Monthly Rent shall be five thousand four hundred seventeen dollars and 00/100 ($5,417.00) and the Average Monthly Community Service Credit shall be two thousand five hundred dollars ($2,500.00) for a Minimum Guarantee i due of two thousand nine hundred and seventeen dollars and 00/100 ($2,917.00)._Lessee agrees to pay such Minimum Guarantee to Lessor monthly when due, payable to City of Miami I 14 LESSOR f LESSEE 95- 865 and mailed to City of Miami, Finance Department, Collections, 300 Biscayne Boulevard Way, Suite 210, Miami, Florida, or at such other address which may be designated from time to time. 4.2 PERCENTAGE RENT In addition to the payment of Minimum Guarantee, Lessee shall pay to Lessor monthly, in the manner and upon the conditions hereinafter provided, Percentage Rent during each Lease Year including any extension hereof, an amount equal to ten percent (10%) of Gross Restaurant Revenues in excess of ten thousand dollars and 00/100 ($10,000) (hereinafter the "Base Restaurant Revenues") per month. Within thirty (30) days after the end of each calendar month: (i) Lessee shall deliver to Lessor a written report of Gross Restaurant Revenues during the preceding calendar month, on forms approved by Lessor. This report shall be signed by Lessee certifying to the accuracy of such Gross Restaurant Revenues, and (0) Lessee shall pay to Lessor the Percentage Rent due, if any, for the preceding calendar month based upon the Gross Restaurant Revenues for the preceding calendar month. Lessee shall not be entitled, in any manner, to a rebate or credit against payment of Minimum Guarantee if, based upon the calculation required above, no Percentage Rent is due, and Lessee shall continue to be fully responsible for the future payment of the Minimum Guarantee as set forth in the Section of the Lease entitled "Rent". Gross Restaurant Revenues, as defined herein, shall mean the entire amount of the revenues and/or: percentages of revenues collected or accrued, from the sale of all food and beverages (excluding alcoholic beverages), conducted on the Lease Property, including sales made or performed by means of mechanical or other vending devices on the Lease Property, whether such revenues shall be credit or cash or otherwise, and whether the foregoing be collected or uncollected and shall include any finance charges or similar payments received by Lessee as a result of any of the foregoing. Gross Restaurant Revenues shall not include any amount of any sales, use or gross sales tax imposed by any federal, state or governmental 15 LESSOR LESSEE. 9 J ^ 865 authority directly on sales and collected from customers, provided that the amount is added to the selling price therein and paid by the Lessee to such governmental authority. 4.3 COMMUNITY SERVICE CREDIT A Community Service Credit is hereby defined as a credit given for the performance of Community Services as outlined in Section 4.4. A maximum of six Community Service Credits shall be given in any Lease Year. As of the Effective Date, a Community Service Credit shall be valued at five thousand dollars ($5,000) per event. The value of the six Community Service Credits shall be totaled and averaged over a period of one Lease Year (hereinafter the "Average Monthly Community Service Credit"). The Average Monthly Community Service Credit shall be deducted from the Base Monthly Rent as provided in Section 4.1. Except as provided herein, for each Community Service Lessee fails to provide, it shall remit to Lessor with its next payment of the Minimum Guarantee the value of one Community Service Credit. Failure to pay such credit as provided herein shall result in a finding of default. 4.4 COMMUNITY SERVICES In accordance with the requirements set forth in Section 2-363 and 37-14 of the City of Miami Code, as amended, and to enhance the public purpose and the benefit to residents in the watersport recreation facilities afforded under this Lease, and to verify the commitment of Lessee to said public purpose as defined herein, Lessee shall provide the following community services to the Lessor: a) At least three (3) Saturdays or Sundays per Lease Year, Lessee shall provide recreational and educational activities with priority to inner city children of the City of Miami. A list of participants shall be provided by the City of Miami Parks and Recreation and shall be limited to thirty (30) participants on any given Saturday or Sunday unless a greater number is agreed to by Lessee. At least two of these activities shall be boating excursions which shall occur within the months of June, July and/or August. 16 LESSOR LESSEE 95� 865 b) Lessee agrees that for reasonable public purpose, it will make the Club facilities available, at no cost to Lessor, three (3) times a year for public events as designated by the Miami City Commission, upon available dates. Lessor shall provide a written request to Lessee for the staging of a community service event at least fourteen (14) days prior to the scheduled event. Lessee shall immediately notify Lessor of any scheduling conflicts. It shall be the responsibility of Lessee to be proactive in requesting from Lessor community service event dates for (a) and (b) above. In the event Lessor does not require the services of Lessee, Lessee may request the written permission of Lessor to substitute an alternate community service for (a) or (b) above and receive a credit for same as provided in Section 4.3 herein. Such permission must be requested in writing prior to the event taking place. In the event it becomes necessary for the Lessor to cancel or reschedule an event, the Lessor shall provide written notice to Lessee a minimum of seven (7) calendar days prior to the scheduled event. Lessee shall be entitled to receive a Community Service Credit if Lessor fails to notify Lessee within the time frame, provided above. i In the event it becomes necessary for the Lessee to reschedule an event, the Lessee shall provide written notice to Lessor a minimum of seven (7) calendar days prior to the scheduled event. If Lessee fails to notify Lessor within the time frame provided above, Lessee shall provide the --necessary services for the rescheduled event without the benefit of receiving a i Community Service Credit. Neither party shall be liable to the other party for acts of God which require the cancellation, rescheduling or modification of an events' activities. Lessor acknowledges Lessee's active participation in providing services to the community and considered same in granting a waiver of competitive bidding and referendum requirements as provided in Section 29-D of the City of Miami Charter. Lessor encourages 17 LESSOR LESSEE 5 _ 865 65 el Lessee to continue to provide such services to serve primarily the residents of the City of Miami. Except as provided herein for substitution of events, Lessee agrees that it shall not receive Community Service Credits for providing community services in addition to (a) and (b) above. 4.5 ADJUSTMENT OF BASE MONTHLY RENT, COMMUNITY SERVICE CREDIT AND BASE RESTAURANT REVENUES Lessee agrees that, as provided for below, the Base Monthly Rent, the Community Service Credit and Base Restaurant Revenues shall be increased on the first day of each Lease Year (hereinafter the "Anniversary Date"), by any increase during the prior year in the index known as "United States Bureau of Labor Statistics, Consumer Price Index. The Base Monthly Rent, Community Service Credit and Base Restaurant Revenues shall utilize the "Consumer Price Index for All Items, Miami - Ft. Lauderdale, Florida", Base Year 1982-84=100 (hereinafter the "CPI"). Said adjustment shall be hereinafter referred to as the "CPI Escalation". The CPI Escalation of the Base Monthly Rent shall be equal to Base Monthly Rent in effect for the immediately preceding Lease Year plus the product of that Base Monthly Rent multiplied by the "CPI Percentage" (as defined below). The CPI Escalation of the Community Service Credit shall be equal to the Community Service Credit in effect for the immediately preceding Lease Year plus the product of that same Community Service Credit multiplied by the "CPI Percentage" (as defined below). The CPI Escalation of the Base Restaurant Revenues shall be equal to the Base Restaurant Revenue in effect for the immediately preceding Lease Year plus the product of that same Base Restaurant Revenue multiplied by the "CPI Percentage" (as defined below). The CPI Percentage shall equal the fraction (i) whose numerator equals the total of (a) the monthly Index published immediately prior to the Anniversary Date (or the nearest reported previous month), minus (b) the monthly Index published immediately prior to the 18 LESSOR • LESSEE •W Effective Date (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index as (b) above. If the Index is discontinued with no successor Index, Lessor shall select a comparable index. Lessor shall compute the CPI Escalations and send a notice, with calculations, to Lessee setting forth the adjusted Base Monthly Rent, Community Service Credit, and Base Restaurant Revenues by February 15th of each Lease Year or as soon as such Index is available. In the event the Minimum Guarantee increases, Lessee shall pay to Lessor within thirty (30) days of receiving such notice, the additional Minimum Guarantee owed for the months which have elapsed in the current Lease Year. In the event the Base Restaurant Revenues increase and Lessee has paid Percentage Rent based on the previous Lease Year's Base Restaurant Revenues within the months which have elapsed in the current Lease Year, Lessee shall be entitled to receive a credit against the next payment of the Minimum Guarantee of any overpayment of Percentage Rent. 4.6 SALES TAX The Lessee shall be liable for the prevailing State of Florida Use Tax imposed on rent (currently at the rate of 6.5%) on the amounts payable to the Lessor under this Agreement. This Sales and Use Tax shall be payable to the Lessor, when rent is due, which in turn will J remit same, less authorized handling deductions, to the State. Said tax is applicable to Minimum Guarantee and Percentage Rent payments, unless otherwise determined by the State of Florida. 4.7 SECURITY DEPOSITS Simultaneously with the execution of this Lease by Lessee, Lessee shall deposit with Lessor the sum of eight thousand seven hundred and fifty-one dollars and 00/100 ($8,751) as a security deposit (the "Security Deposit"). Lessee shall further deposit on the first day of 19 LESSOR LESSEE 865 Lease Year ten (10) and the first day of Lease Year twenty (20) an additional amount sufficient to have the Security Deposit equal three months of the Minimum Guarantee in effect on the respective day of deposit. The Security Deposit shall be security for the payment and performance by Lessee of all of Lessee's obligations, covenants, conditions, and agreements under this Lease. Lessor shall have the right, but shall not be obligated, to apply all or any portion of the Security Deposit to make any such payment or perform any such act on Lessee's part without waiving its right based upon any default of Lessee and without releasing Lessee from any obligations hereunder. Lessee shall promptly deposit with Lessor the amount necessary to restore the Security Deposit to its full amount. The Security Deposit shall not be deemed liquidated damages and application of the Security Deposit to reduce Lessor's damages, shall not preclude Lessor from recovering from Lessee all additional damages incurred by Lessor. The Security Deposit shall bear no interest. If legally permissible, Lessor shall be entitled to co -mingle the Security Deposit with Lessor's other funds. If Lessee fully and faithfully complies with all of the terms, provisions and conditions of the Lease, the Security Deposit shall be returned to Lessee without interest after both: (i) the expiration of the Lease term, as may be extended pursuant to the provisions of this Lease, and (ii) Lessee's delivery to Lessor of the entire Lease Property in the same condition or better than existed on the Effective Date, ordinary wear and tear excepted; have occurred. In the event of a sale or transfer of Lessor's interest in the Lease Property, Lessor shall have the right to transfer the Security Deposit to such transferee and thereafter Lessor shall be released from all liability relating to the return of the Security Deposit, and Lessee shall look to such transferee for the return of the Security Deposit. 4.8 ADDITIONAL PAYMENTS In addition to the Minimum Guarantee and the Percentage Rent under Sections 4.1 and 4.2, all other payments or charges payable by Lessee, however denoted, are called 20 LESSOR LESSEE 95- 865 "Additional Payments„. Unless this Lease provides otherwise, all Additional Payments shall be paid with the next installment of the Minimum Guarantee. 4.9 INTEREST ON LATE PAYMENTS Any payment made by Lessee for any rental, fee or charge as required to be paid under the provisions of this Lease, which is not received by Lessor within five (5) days after same shall become due, shall be subject to interest at the prime interest rate, or such other rate as specified as the general interest rate on obligations in Florida by Chapter 687, Florida Statutes, whichever is higher, from the date such payment is due until such time as the payment is actually received by the City. 4.10 OVERPAYMENT AND UNDERPAYMENT In the event that the Lessee can demonstrate, by standard and acceptable accounting practices, that is has made an overpayment in the Percentage Rent in remitting the sum due in accordance with Section 4.2 of this Lease, such overpayment shall be refunded promptly to the Lessee exclusive of interest thereon, but if the Lessee has made an underpayment in the Percentage Rent then said underpayment shall be paid to the Lessor with interest thereon at the prime interest rate from the date that it was originally due until it is paid, or such other interest rate as is set forth in Chapter 687, Florida Statutes, as amended, whichever is higher. M 4.11 SPECIAL ASSESSMENTS OR TAXES Notwithstanding that Lessor retains title to the Lease Property and any improvements thereto during the Lease Term hereof, Lessee covenants and agrees to pay any and all charges, taxes, or assessments, levied against the Lease Property and improvements, personal property or operations thereon, including, but not limited to, ad valorem taxes. Payment thereof shall commence with and shall include taxes assessed for the current year, if any. The Lessee further covenants and agrees to pay all of said charges, taxes, or 21 LESSOR LESSEE 95- 865 assessments, if any, lawfully assessed, on such dates as they become due and payable. Failure of Lessee to pay such as aforesaid shall constitute a default of this Lease by the Lessor, subject to the terms and conditions of Section 15.1. 4.12 PAYMENT OF AD VALOREM TAXES Prior to or simultaneously with the execution of this Lease by Lessee, Lessee shall pay in full the 1995 Ad Valorem Taxes on the Lease Property. Lessee agrees that each year thereafter, it shall enroll in the Dade County Ad Valorem Tax Payment Plan. Failure to enroll in said plan or to make payments in accordance with said plan shall be a default of this Lease. In the event Lessee appeals an ad valorem tax or the assessment value, Lessee shall immediately notify Lessor of its intention to appeal said tax and 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 percent of the contested tax with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. ARTICLE V RECORDS AND AUDITING 5.1 RECORDS OF SALES During the term of this Lease and any extension thereto, Lessee shall maintain and keep, or cause to maintained and kept at the Lease Property, a full, complete and accurate record and account of all Gross Restaurant Revenues arising or accruing by virtue of its operations conducted at or from the Lease Property, for each day of the term and all extensions thereof. All records and accounts including sales slips (which will be serially numbered), cash register tapes, bank statements or duplicate deposit slips, mail orders, telephone orders and all other supporting records, shall be available for inspection and audit by the Lessor and its duly 22 LESSOR LESSEE 95- 865 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 procedures. Lessee must provide point of sale machines or such other cash registers or accounting control equipment deemed reasonably necessary and consented to by the City Manager, for proper control of cash and payments 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 sixty (60) 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 Lease Property, and any other governmental tax or other returns which show Lessee's sales therein, and shall, upon demand, deliver photographic copies 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. 5.2 AUDIT Upon Lessor's request which shall occur no more than once in any given Lease Year, Lessee shall deliver or cause to be delivered within ninety (90) days of such request, to Lessor's, Office of Asset Management, 300 Biscayne Boulevard Way, Suite 400, Miami, Florida 33131, a financial statement for the Lease Years so specified in Lessor's request, prepared and certified by an auditor employed at Lessee's sole cost and expense. Said Auditor shall certify that he made a complete examination of the books, state sales flax returns, and federal income tax returns of Lessee and that such statement is prepared in accordance with generally accepted accounting principles and practices and represents the Gross Restaurant Revenues of the Lessee for the period indicated therein. With each financial statement, Lessee shall pay to Lessor any unpaid balance of the Rent or underpayment of Percentage Rent, if any, and 1 Lessor shall refund any overpayments, if any. In the event the Lessee fails to prepare or deliver any required Audited Financial Statement to the Lessor within the time set forth above, 23 LESSOR LESSEE 95- 865 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 notice thus entitling the Lessor, without further notice, to exercise its right to cancel this Lease and resort to other legal remedies; 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 cost of such audit within thirty (30) days of receipt of an invoice indicating the cost of such audit. Failure to pay such invoice shall constitute a default of this Lease as provided in Section 18.1 below. Notwithstanding the above, at its option, Lessor may cause, at its sole cost and expense, at any time within sixty (60) months of receipt of any Percentage Rent statement furnished by Lessee, a complete audit to be made of Lessee's business affairs, records, files, sales slips and sales tax records in connection with Lessee's sales on, from or related to the Lease Property 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 (30) days of receipt of notice from Lessor that such balance is due. If such audit shall disclose an overpayment, Lessor shall refund such to Lessee.:: 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. Records shall be available Monday I through Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the lease Property. 1 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 Restaurant Revenues and inventories of merchandise on the Lease Property in order to i i i i 24 LESSOR I' LESSEE 95- 865 veiny ine at"ount oT annua1 VI U5zs RtlSIQUI dl it 1 RCVCi IUCJ I l IdUC UY 1_GSJCG III al IU I I UI I i U IU Lease Property. ARTICLE VI LICENSES: COMPLIANCE WITH LAWS 6.1 LICENSES AND PERMITS The Lessee shall, at Lessee's sole cost and expense, obtain any and all licenses and permits necessary and in connection with Lessee's use and occupancy of the Lease Property. Lessee's liquor license shall be restricted to a License for Clubs, currently referred to as a Type 11(c) License for Clubs as issued by the State of Florida. 6.2 COMPLIANCE WITH LAWS Lessee accepts this Lease and hereby acknowledges that Lessee's compliance with all applicable laws, ordinances and codes of federal, state and local governments, as they may apply to this Lease, including but not limited to building codes and zoning restrictions, is a condition of this Lease and Lessee shall comply therewith as the same presently exist and as they may be amended hereafter. ARTICLE Vil ALTERATIONS AND IMPROVEMENTS 7.1 LESSEE'S ALTERATION OF IMPROVEMENTS Lessee shall not make or permit to be made any construction, repairs, alterations, additions, partitions or changes to the Lease Property (hereinafter collectively called "Alterations") unless the detailed plans and specifications of the proposed Alteration: A. Are first submitted to the Director of Office of Asset Management for presentation, review and approval by all departments and offices of the Lessor with jurisdiction 25 LESSOR LESSEE ... ....... r B. Are approved by the City Manager which approval shall not be unreasonably delayed or denied; and C. Are in compliance with all statutes, laws, ordinances and regulations of the State, Dade County, City of Miami and any other agency that may have jurisdiction over the Lease Property as they presently exist and as they may be amended hereafter. Lessee also hereby agrees to pay for and obtain the necessary and applicable permits in compliance with all State, Dade County and City of Miami laws, rules and regulations in connection with any Alterations made by Lessee to the Lease Property; and Upon completion of any Alterations, the paid invoices, receipts, canceled checks and other such documents shall be submitted to the Lessor and shall be incorporated herein and attached hereto. Lessee shall have the right to remove any movable personal property that it places in or on the Lease Property. All Alterations must be in conformance with the provisions of Section 6.2 hereof. If any part of the Lease Property is in any way damaged by the removal of such items, said damage shall be repaired by Lessee at its sole cost and expense. Should Lessee fail to repair any damage caused to the Lease Property within thirty (30) days after receipt of written notice from Lessor directing the required repairs, Lessor shall cause the Lease Property to be repaired at the sole cost and expense of Lessee. Lessee shall pay Lessor the full cost of such:repairs within thirty (30) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice shall constitute a default of this Lease as provided in Section 18.1 below. Notwithstanding the above, this Lease may be terminated as provided in Section 18.1 below due to Lessee's failure to repair the Lease Property as directed without the necessity of Lessor repairing the Lease Property. 26 LESSOR LESSEE 95- 865 7.2 INITIAL IMPROVEMENTS Lessee, at its sole cost and expense, shall complete the construction, repairs, improvements and alterations as outlined in Exhibit "C" attached hereto and made a part hereof (collectively the "Initial Improvements"). Such Initial Improvements shall be completed within five years of the Effective Date and shall be in conformance with Section 7.1 above. In the event Lessee is unable to complete construction of the Initial Improvements within said five year period due to no fault of its own, Lessee shall request, in writing, from Lessor an extension for completion of the Initial Improvements which shall not be unreasonably denied. The maximum extension permitted shall be an additional twenty-four (24) months. Notwithstanding the above, if Lessee is required to construct and realign the public access road as provided in the Use Agreement, Lessee shall be .granted an automatic extension of twenty-four (24) months in which to complete construction of the Initial Improvements. Lessee agrees that it shall coordinate all applicable Initial Improvements with the City and the proposed development by Parrot Jungle. 7.3 LESSOR'S IMPROVEMENTS Lessor agrees it shall spend approximately fifty thousand dollars ($50,000) for the purpose of making code upgrades to the Lease Property. Such code upgrades to be performed within five (5) years of the Effective Date and shall be coordinated with Lessee and Lessee's Initial Improvements. All work in connection with such code upgrades shall be performed by the City. Lessor's improvements are in addition to, and not a part of, the Initial Improvements to be performed by Lessee. 27 LESSOR LESSEE 95- 865 7.4 MECHANICS' LIENS The Lessee shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Lease Property, nor against the Lessee's interest in the property, nor against any Alteration by reason of work, labor, services or materials supplied to the Lessee or anyone having a right to possession of the Lease Property as a result of an agreement with or the consent of Lessee. Nothing in this Lease 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 Alteration, or repair of or to the Lease Property nor as giving the Lessee the right, power or authority to contract for or permit the rendering of any services of the furnishing of any materials that would give rise to the filing of any mechanics liens against the Lessor's interest in the Lease Property. If any mechanics' lien shall at any time be filed against the Lease Property, the Lessee shall cause it to be discharged of record within thirty (30) days after the date the Lessee has knowledge of its filing. If the Lessee shall fail to discharge 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 of 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 Payments due and payable under this Lease and shall be repaid to the Lessor by the Lessee immediately upon rendition of any invoice or bill by the Lessor. The 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 28 LESSOR LESSEE 95. 865 the Lessee shall have given notice in writing to the Lessor of its intention to contest the validity of the lien and 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. 7.5 PAYMENT AND PERFORMANCE BONDS No construction of Initial Improvements and Alterations with a cost in excess of two hundred thousand dollars ($200,000) shall be commenced on the Lease Property until Lessee has secured and submitted to the Lessor for approval pursuant to the City of Miami Code and Section 255.05, Florida Statutes, as may be amended, payment and performance bonds in the amount of one hundred twenty-five percent (125%) of the total construction cost of the Initial Improvements or Alterations. Lessee shall be responsible for maintaining said bonds in full force and effect throughout the construction of the Initial Improvements and Alterations. All bonds shall be issued by insurance and surety companies acceptable to the Lessor and duly qualified to transact such bonding business in 'the State of Florida, subject to form and substance approval by Lessor's City Manager. ' ARTICLE VIII LESSOR'S INSPECTION AND RIGHT OF ENTRY 8.1 INSPECTION BY LESSOR Lessor shall have the authority to make periodic reasonable inspections of all the Lease Property and improvements thereof, during normal working hours to determine if such are being maintained in a neat and orderly condition. Lessee, at its sole cost and expense, shall be required to make any improvements in cleaning or maintenance methods reasonably 29 LESSOR LESSEE 95- 865 r required by Lessor. Such periodic inspections may also be made at the Lessor's discretion to determine whether Lessee is operating in compliance with the terms and provisions of this Lease. 8.2 LESSOR'S RIGHT OF ENTRY Lessee agrees to permit Lessor to enter upon the Lease Property at all reasonable times, for any purpose 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 IX UTILITY CHARGES 9.1 UTILITIES Lessee, at its sole cost and expense, shall be responsible for all utilities rendered or supplied upon or in connection with the Lease- Property, including but not limited to, electricity, telephone, water, gas, sewage disposal, stormwater utility fees, trash and garbage removal, as well as all costs for installation of any lines and equipment necessary. ARTICLE X NO REPRESENTATION BY LESSOR 10.1 CONDITION OF LEASE PROPERTY Lessee takes the Lease Property "as is", in its present condition and state of repair and without any representation by or on behalf of Lessor, and agrees that Lessor shall, under no circumstances, be liable for any latent, patent or other defects in the Lease Property. 30 LESSOR LESSEE 95- 865 ARTICLE XI MAINTENANCE AND REPAIR 11.1 MAINTENANCE AND REPAIR OF LEASE PROPERTY Lessee shall, at its sole cost and expense, at all times during the Lease Term, keep and maintain in good order, condition and repair the Lease Property and every part thereof, including, without limitation, air conditioning and heating systems, decoration, plumbing, mechanical, electrical, fixtures, floor coverings, elevator, structural, window and roof repairs and replacements. Lessee shall not commit, or suffer to be committed, any waste in or upon the. Lease Property or do anything in or on the Lease Property which, in Lessor's sole opinion, detracts from the appearance of the Lease Property. All repairs or replacements shall be performed to the satisfaction of Lessor. At the expiration or earlier termination of the term of this Lease, Lessee shall surrender the Lease Property "broom clean" and in the same order and condition, or better, which it was upon execution of the Lease,. ordinary wear and tear and damage by the. elements, fire and other insured casualty excepted. 11.2 PREVENTIVE MAINTENANCE AND SERVICES Lessee shall, at its sole cost and expense, provide the following preventive maintenance and services: (i) Cleaning and janitorial services for the Lease Property; Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Lease Property; (iii) Interior and exterior window cleaning to be performed as needed but no less than once every one hundred and twenty (120) days; (iv) Vermin control as necessary, but no less than once every sixty (60) days; 31 LESSOR LESSEE 95- 865 (v) Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable. (vi) Painting of interior and exterior of buildings including caulking of all window and door frames, painting of signs, if applicable, and restriping of parking lot on Lease Property as necessary, but no less than once every four years; (vii) Repainting roof as necessary, but no less than once every two years; (viii) Reseal all wood docks and decks as necessary, but no less than once every two years; In addition to the above, Lessee, at its sole cost and expense, shall have a qualified property inspector perform a physical inspection of the Lease Property including all structural components and mechanical equipment as part of a preventive maintenance program and shall submit an inspection report to Lessor of conditions found. Such physical inspection shall be performed on the first anniversary of the Term and annually thereafter. Within sixty (60) days of completing said inspection, Lessee shall submit a remediation plan to Lessor, to be approved by the City Manager, for all conditions requiring repair, replacement or modification as noted in the inspection report. If Lessee refuses, neglects or fails to provide the above services or does not provide adequate services within thirty (30) days after written demand from Lessor, Lessor may take corrective iimeasures or cause the Lease Property to be cleaned or repaired without waiving its right based upon any default of Lessee and without releasing Lessee from any obligations hereunder. Lessee shall pay Lessor, as Additional Payments, the full cost of such work within thirty (30) days of receipt of an invoice indicating the cost of such corrective measures or cleanup. Failure to pay such invoice shall constitute a default of this Lease as provided in Section 18.1 below. Notwithstanding the above, Lessee's failure to perform the corrective measures or cleanup to the Lease Property as directed without the necessity of 32 LESSOR LESSEE 95 865 Lessor repairing the Lease Property shall constitute a default of this Lease as provided in Section 18.1 below. Nothing herein shall imply that maintenance, repair and inspections should be performed by Lessee only at the suggested intervals. Lessee shall, at all times, be responsible for the condition of the Lease Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to property. 11.3 RESERVE FUNDS FOR CAPITAL IMPROVEMENTS Lessee agrees by the end of Lease Years one through five, Lessee shall deposit in a separate account by the end of each of these lease years the sum of ten thousand dollars and 00/100 ($10,000) (the "Annual Contribution") for the purpose of establishing a Reserve Fund for the sole purpose of funding "Capital Improvements" to the Lease Property, and no other purpose. A Capital Improvement is defined as a capital expenditure of five thousand dollars and 00/100 ($5,000) or more, resulting in the acquisition, improvement or addition to fixed assets in the form of buildings or improvements, more or less permanent in character and durable equipment with a life expectancy of at least three years. By the end of Lease -Year five, said Reserve Fund shall have an ending balance of fifty thousand dollars ($50,000). Except for Lease Years I through 5, by the end of each Lease Year, the Reserve Fund shall have a minimum fund balance of fifty thousand dollars ($50,000). By the end of each Lease Year 1 thereafter, Lessee shall make an Annual Contribution to said fund. Lessee agrees that, as provided for below, the Annual Contribution shall be increased by any increase during the prior 1 year in the index known as "United States Bureau of Labor Statistics, Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100 (hereinafter the "CPI") or five percent (5%), whichever is less. The adjustment utilizing the CPI Index shall hereinafter be referred to as the "CPI Escalation". The CPI Escalation shall be equal to the Annual Contribution in effect for the 33 LESSOR 1 LESSEE 95-- 865 immediately preceding Lease Year plus the product of that same Annual Contribution multiplied by the "CPI Percentage". The CPI Percentage shall be equal to the fraction (1) whose numerator equals the total of (a) the monthly Index published immediately prior to the Anniversary Date (or the nearest reported month), minus (b) the monthly Index published immediately prior to the Effective Date (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index as (b) above. If the Index is discontinued with no successor Index, Lessor shall select a comparable index. The five percent (5%) escalation shall be equal to the Annual Contribution in effect for the immediately preceding Lease Year plus the product of that same Annual Contribution "multiplied by five percent (5%). Lessor shall compute the CPI Escalation and five percent (5%) escalation and send a notice with calculations to Lessee setting forth the adjusted Annual Contribution by February 15th of each Lease Year or as soon as such Index is available, whichever is later._ All Capital Improvements shall be performed in accordance with Sections 6.2 and 7.1 herein. Maintenance of the Base Fund Balance shall not waive the requirement that Lessee make the required Annual Contribution in the Reserve Fund by the end of each Lease Year. It is the intent of the Reserve Fund to facilitate the funding of Capital Improvements. The Annual Contribution required above is a minimum contribution and is not meant to limit the ability of Lessee to deposit additional monies in said fund for the purpose of funding Capital Improvements which may be desired or required pursuant to this Lease. 34 LESSOR LESSEE- 865 65 ARTICLE XII INDEMNIFICATION AND INSURANCE 12.1 INDEMNIFICATION Lessee shall indemnify, protect, defend and hold harmless the Lessor, its officials and employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the use or operation of the Lease Property, whether such claim shall be made by an employee or member of Lessee, an employee of the Lessor or by any third party, and whether it relates to injury to persons (including death) or damage to property and whether it is alleged that the Lessor or its employees or officials were negligent. Lessee shall, at its own cost and expense, pay and satisfy all costs related to any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. Lessee shall further indemnify, defend, protect and hold Lessor harmless from and against any and all claims arising from any breach or default in performance of any obligation of Lessee's part to be performed under the terms of this Lease, or arising from any act, neglect, fault or omission of Lessee, its members, agents, contractors, employees and servants and from and against all costs, attorneys' fees, expenses and liability incurred in connection with such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against Lessor by reason of any claim, Lessee upon notice from Lessor shall defend the same at Lessee's expense by counsel approved in writing by Lessor. Lessor reserves the right to defend itself. 35 LESSOR LESSEE 95- 865 Lessee shall immediately notify Lessor, in writing, of any claim or action filed, of whatever nature, arising out of the use or operation of the Lease Property by Lessee, its members, agents, contractors, employees or servants. Lessee shall also immediately notify Lessor if Lessee knows or has reason to believe a claim or action will be filed, of whatever nature, arising out of the use or operation of the Lease Property by Lessee, its members, agents, contractors, employees or servants. 12.2 INSURANCE Lessee, at its sole cost and expense, shall obtain and maintain in full force and effect at all times throughout the period of this Lease and through any periods of extensions, the following insurance: A. Commercial General Liability insurance on a comprehensive general liability coverage form, or its equivalent, including contractual liability, marina operators 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 Lease Property with such limits as may be reasonably requested by the Lessor from time to time but not •less than $1,000,000 per occurrence combined single limit for"bodily injury and property damage. The Lessor shall be named as Additional Insured on the policy or policies of insurance. B. "All Risk" property insurance against loss or damage by fire, windstorm, flood with such endorsement for extended coverage, vandalism, malicious mischief and special coverage, including flammable materials used for cooking, insuring 100% of the replacement cost of the Lease Property, including but not limited to, the buildings, docks, Lessee's alterations, improvements, fixtures, equipment, furniture and all other personal property in and about the Lease Property. The Lessor shall be named as a Loss Payee. 36 LESSOR LESSEE 95- 865 C. Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this agreement. 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 $300,000 for bodily injury and property damage. The requirements of this provision may be waived upon submission of a written statement that no automobiles are used to conduct business. D. Worker's Compensation in the form and amounts required by State law. E. The Lessor reserves the right to amend the insurance requirements by the issuance of a notice in writing to Lessee. The Lessee shall provide any other insurance or security reasonably required by the Lessor. F. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to Lessor. Said notice should be delivered to the City of Miami, Division of Risk Management, 300 Biscayne Boulevard Way, Suite 328, Miami, Florida 33131 with copy to City of Miami, Office of Asset Management, 300 Biscayne Boulevard Way, Suite .400, Miami, FL 33131. G. A current Evidence of Insurance and Policy of: Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Office of Asset Management of the Lessor at the. -commencement of the term of this Lease and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: the company should be rated "A" as to management, and no less than class "X" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the company holds a valid Florida Certificate of Authority and is a member of the Florida Guarantee 37 LESSOR LESSEE _ 95- 865 Fund. 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. In the event Lessee shall fail to procure and place such insurance, the Lessor may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Lessee to the Lessor as Additional Payments upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the Lessor. Failure to pay such amount within the time frame provided shall constitute a default of this Lease as provided in Section 18.1 below. Lessee's failure to procure insurance shall in no way release Lessee from its obligations and responsibilities as provided herein. 12.3 DAMAGE OR LOSS TO LESSEE'S PROPERTY Lessor shall not be liable for injury or damage which may be sustained to the Lease Property or sustained by a person, goods, wares, merchandise or other property of the Lessee, or Lessee's employees, agents, representatives, invitees, members, guests or of any other person in or about the Lease Property caused by or resulting from any peril whatsoever which may affect the Lease Property, including, without limitation, fire, steam, electricity, gas, water, rain or theft which may leak or flow from or into any part of the Lease Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Lease Property, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Lease Property or any person whomsoever, including Lessor, its officers, employees or agents, whether such damage or injury results from conditions arising upon the Lease Property or upon other portions of the Lease Property or from other sources. Lessor shall not be liable for any damages arising 38 LESSOR LESSEE 95- 865 u from any act or neglect of: (a) any other member, visitor or invitee of Lessee; or (b) any officer, employee, or agent of any such Lessee. ARTICLE XIII DAMAGE AND DESTRUCTION 13.1 DESTRUCTION OF LEASE PROPERTY If during the Lease Term or any extension hereof, the Lease Property shall be damaged by fire or other casualty, Lessee shall be responsible for filing the necessary claim with the insurance company. Upon receipt of the insurance proceeds, Lessee shall endorse such payment and furnish same to the Lessor for deposit in Lessor's Deposit Refundable Account. Lessee shall within ninety (90) days of receipt of such insurance proceeds, commence and continue to repair or replace the Lease Property to substantially the same condition or better that existed prior to such fire or other casualty. It shall be the responsibility of the Lessee to ensure sufficient proceeds are received to cover the cost of such repair or replacement. The Lessee shall further be responsible for payment of any deductible, co -payment and/or any difference in the cost of the repair or replacement and insurance. proceeds received. In the event insurance proceeds, co- payment and deductible are inadequate to complete the repairs or replacement, Lessee shall within ninety (90) days after the date of such damage provide written notice to Lessor of its option to either repair or replace at Lessee's sole cost and expense, in which case this Lease shall remain in full force and effect, or not repair or replace, in which event the Lease shall terminate as of the date of such notice to Lessor. If Lessee terminates this Lease, all insurance proceeds payable shall thereupon be paid directly to, and retained solely by Lessor. In the event the repairs or replacement are performed at a cost which is less than the insurance proceeds available, the Lessee shall receive such excess funds. 39 LESSOR LESSEE 95- Lessor shall not be liable for any inconvenience or annoyance to Lessee or injury to Lessee's operations resulting in any way from such casualty damage or repair thereof. Upon any termination of this Lease under any of the provisions of this Article XIII, Lessee and Lessor 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 to any sums then accrued or due, or to Lessee's obligations regarding Surrender of the Lease Property and Hazardous Materials, and at such time the remaining balance of the Security Deposit, less any sums Lessor is entitled to deduct, shall be returned to Lessee. In the event of any repair or replacement as provided in this Section, Lessee's Minimum Guarantee shall be equitably abated proportionately based upon the degree to which Lessee's use of the Lease Property is impaired commencing from the date of such damage or destruction and continuing during the period of such repair or replacement. Notwithstanding the foregoing, there shall be no abatement whatsoever if either (i) the damage is due to the act, omission, fault or neglect of Lessee or its employees, agents, representatives, members or guests, or (ii) if the use and enjoyment of -the Lease Property is not affected for more than five (5) calendar days of operation. Lessee understands that Lessor will not carry insurance of any kind on the Lease Property or improvements thereon, or on Lessee's furniture, furnishing or on any fixtures or equipment, inventory or other personal items under the provisions of this Lease, that Lessor shall not be obligated to repair any damage thereto or replace the same and that Lessee shall not be entitled to any compensation from Lessor for loss of the same or for loss of the use of the whole or any part of the Lease Property, or any inconvenience, interruption or annoyance occasioned to Lessee or its operations by such damage, repair or replacement. 40 LESSOR LESSEE 95- 865 ARTICLE XIV EMINENT DOMAIN 14.1 EMINENT DOMAIN A. Permanent Taking If the whole or portion of the Lease Property is taken under power of eminent domain or sold, transferred or conveyed in lieu thereof, and such taking affects the primary purpose of this Lease as outlined in Section 2.1 hereof, either Lessor or Lessee shall have the right to terminate this Lease as of the earlier of the date of vesting of title or the date possession is taken by the condemning authority; such right shall be exercised by the giving of written notice to the other party on or before said date. Lessor shall receive the entire award which may be made in such taking or condemnation and Lessee hereby assigns to Lessor any and all rights of Lessee now or hereafter arising in or to the same whether or not attributable to the value of the unexplored portion of this Lease. Provided, however, that Lessor shall pay Lessee the unamortized cost of any Initial -Improvements undertaken by Lessee upon -the Lease Property in accordance with Section 7.2 hereof. The amortization period herein referenced shall be based on a straight line method using a ten year term commencing the Effective Date. The maximum amount to be amortized shall be three hundred thousand dollars and 00/100 ($300,000). Said amount to be based on actual receipts and copies of payments submitted in accordance with Section 7.1. Nothing contained herein shall be deemed to give Lessor any interest in or to require Lessee to assign to Lessor any award made to Lessee for Lessee's moving expenses or the taking of the unamortized value or undepreciated value of Lessee's personal property. In the event this Lease is not terminated by Lessor or Lessee as provided above, or if such taking, or sale, transfer or conveyance in lieu thereof, does not affect the primary purpose of this Lease, then this Lease shall automatically terminate as to the portion of 41 LESSOR LESSEE 865 1 the Lease Property so taken as of the earlier of the date of vesting of title or the date possession is taken by the commencing authority. The parties further agree to review the affects of such taking upon the primary purpose of this Lease and to make adjustments to the Rent and Percentage Rent as may be necessary. If any part of the Lease Property is taken and if such part affects Lessor or Lessee's ability to perform any covenant contained in this Lease, then the respective party shall upon such taking be relieved of such covenant. Lessee hereby waives any and all rights it might otherwise have to terminate this Lease or to any condemnation proceedings under any statutes, laws, or ordinances in the State of Florida. B. Temporary Taking In the event of temporary taking of all or any portion of the Lease Property for a period of thirty (30) days or less, then this Lease shall not terminate but the Minimum Guarantee shall be abated for the period of such taking in proportion to the ratio to that of the remaining square feet of the Lease Property. Lessor shall be entitled to receive the entire award made in connection with any such temporary taking. ARTICLE XV ASSIGNMENTS AND SUBLETTING 15.1 ASSIGNMENT AND SUBLETTING OF LEASE PROPERTY Lessee shall not, at any time during the term of this Lease, assign, mortgage, pledge or otherwise encumber this Lease, the term or estate hereby granted, or any interest hereunder; or sublease or offer or advertise for subleasing the Lease Property or any portion thereof. Lessee shall not, at any time during the term of this Lease, enter into any license, concession or permit agreement with respect to the Lease Property or any portion thereof, nor permit any third party or parties other than Lessee, its authorized agents, employees and 42 LESSOR LESSEE 95- 865 members, to occupy or use the Lease Property or any portion thereof (hereinafter individually and collectively referred to as a "Transfer") without first procuring the written consent of the City Commission. Any such attempted or purported Transfer, without Lessor's prior written consent, shall be void and of no force or effect, shall not confer any interest or estate in the purported Transferee, and shall result in forfeiture of Lessee's rights under this Lease. _ The provisions of Section 15.2 constitute the sole means by which Lessor's consent may be requested. The consent of Lessor may be withheld for any or no reason whatsoever, at its sole discretion. It is agreed that all terms and conditions of this Lease shall extend to and be binding on all Transferees as may be approved by Lessor. Lessee shall be liable for acts and omissions by any Transferee affecting this Lease. Lessor reserves the right to directly terminate any Transferee for any cause for which Lessee may be terminated. Lessee shall reimburse to Lessor, as Additional Payments, all costs and expenses, including attorneys' fees, which Lessor incurs by reason of or in connection with Transfer, and all negotiations and actions with respect thereto, such Additional Payments to be due and payable within thirty (30) days of receipt of a statement of such costs and expenses from Lessor. 15.2 PROCEDURE FOR TRANSFER Should Lessee desire to make a Transfer hereunder, Lessee shall, in each instance, give written notice of its intention to do so to Lessor at least ninety (90) days prior to the effective date of any such proposed Transfer, specifying in such notice the nature of such proposed Transfer and the proposed date thereof and specifically identifying the proposed Transferee. Such notice shall be accompanied, in the case of a license, concession or permit agreement, by a copy of the proposed license, concession or permit agreement and any other documents or financial information (including without limitation, three years audited financial 43 LESSOR LESSEE 95- 865 statements of certified financial statements) Lessor may require in order to make a determination as to the suitability of the Transferee. Lessor shall, within forty-five (45) days after its receipt of such notice of a proposed Transfer from Lessee, by mailing written notice .to Lessee of its intent to do so, either (i) withhold consent to the Transfer, or (ii) consent to such Transfer upon the terms and subject to the conditions provided for in this Article. Lessee acknowledges and agrees that the imposition of the conditions described in this Article XV as a condition of Lessor's consent is reasonable. 15.3 ADJUSTMENT TO RENTS AS A RESULT OF A TRANSFER In the event that Lessee shall make a permitted Transfer hereunder of all or any portion of the Lease Property (the "Transfer Space"), then the following shall apply: Lessee shall pay Lessor monthly, as Additional Payments, at the same time as the Minimum Guarantee installment required hereunder, fifty percent (50%) of the "Fee" payable by the Transferee pursuant to the terms reserved in the Transfer agreement, concession or license or ten percent (10%) of the gross revenues of Transferee's operations, whichever is greater.' For purposes of this Section 15.4 "Fee" shall mean all use fees, rent and other amounts paid or payable by the Transferee to Lessee pursuant to the terms of the Transfer. 15.4 NO RELEASE OF LESSEE Any assignment, sublease, pledge, encumbrance of this Lease or Transfer in violation of this tease or without Lessor's prior written consent, shall at the option of Lessor, constitute a default of this Lease. No Transfer permitted by this Article XV shall release Lessee or change Lessee's primary liability to pay the Minimum Guarantee, Percentage Rent, Additional Payments and to perform all other obligations of Lessee under this Lease. Lessor's acceptance of rent from any other person is not a waiver of any provision of this Article XV. Consent to one transfer is not a consent to any subsequent transfer. If Lessee's Transferee defaults under this Lease, Lessor may proceed directly against Lessee without pursuing 44 LESSOR LESSEE 95- �6� remedies against the Transferee, or against the Transferee and then also proceed directly against the Lessee under this tease. Any action by Lessor against the Lessee shall not release the Transferee. Lessor may consent to subsequent Transfers or modifications of this Lease by Lessee's Transferee, without notifying Lessee or obtaining its consent. Such action shall not relieve Lessee's liability under this Lease or the liability of the Transferee. 15.5 EVENT OF BANKRUPTCY If this Lease is assigned to any person or entity pursuant to the provision of the United States Bankruptcy Code,11 U.S.C. SS 101 et seq (the "Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Lessor, shall be and remain the exclusive property of Lessor, and shall not constitute the property of Lessee or of the estate of Lessee within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Lessor's property under this Section not paid or delivered to Lessor shall be held in trust for the benefit of Lessor and shall be promptly paid or delivered to Lessor. Any person or entity to which this Lease is assigned pursuant to the provision of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of such assignment. ARTICLE XVI OWNERSHIP OF IMPROVEMENTS 16.1 OWNERSHIP OF IMPROVEMENTS As of the Effective Date and throughout the Lease Term, title to the Lease Property, all buildings and improvements thereon shall be vested in Lessor. Furthermore, title to all Alterations made in or to the Lease Property during the Lease Term, whether or not by or at the expense of Lessee, shall, unless otherwise provided by written agreement, immediately upon 45 LESSOR LESSEE 95- 865 t". their completion become the property of Lessor and shall remain and be surrendered with the Lease Property. Any furniture, furnishing, equipment or other articles of movable personal property owned by Lessee and located in the Lease Property, shall be and shall remain the property of Lessee and may be removed by it at any time during the term of this Lease so long as Lessee is not in default of any of its obligations under this Lease and the same have not become a part of the freehold, and so long as such does not materially affect Lessee's ability to use said premises ana conauct its operations as proviaea nerein. however, it any or the Lessee-s property is removed and such removal causes damage to the Lease Property, Lessee shall repair such damage at its sole cost and expense. Should Lessee fail to repair any damage caused to the Lease Property within thirty (30) days after receipt of written notice from Lessor directing the required repairs, Lessor shall cause the Lease Property to be repaired at the sole cost and expense of Lessee. Lessee shall pay Lessor the full cost of such repairs within thirty (30) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice shall consitute a default of this Lease as provided in Section 18.1 below.. Any property belonging to Lessee and not removed by Lessee at the expiration or earlier termination of the Lease, shall, at the election of the Lessor, be deemed to be abandoned by Lessee, and the Lessor may keep or dispose of such property and restore the premises to good order within ten (10) days after billing therefore. At the expiration of the term of this Lease, Lessee shall deliver to the Lessor the keys and combination to all safes, cabinets, vaults, doors and other locks left by Lessee on the Lease Property. 46 LESSOR LESSEE 95- 865 ARTICLE XVII SIGNAGE 17.1 SIGNS Lessee shall not permit any signs or advertising matter to be placed on any portion of the Lease Property except with prior written approval of the City Manager, which approval may withheld, for any or no reason whatsoever, at his sole discretion. Lessee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the expiration or earlier termination of this Lease, for any reason, Lessee shall, at its sole cost and expense, remove and dispose of all signs located on the Lease Property. ARTICLE XVIII DEFAULT PROVISIONS 18.1 DEFAULT In the event that during or after the Term, or extension thereto, Lessee fails to perform any of the covenants, provisions, obligations or agreements contained in this Lease within thirty (30) days after receipt of written notice from the Lessor of such refusal or neglect, unless such default cannot be cured within thirty (30) days and Lessee within said thirty (30) days shall have commenced and thereafter shall have continued diligently to prosecute all actions necessary to cure such default, Lessee shall be in default ("Default") hereunder and Lessor shall have the option to terminate this Lease and all of Lessee's rights hereunder. In the event of such termination, the Lessor shall have the right to seek any damages sustained by it by reason of Lessee's actions or inactions and the resulting termination of this Lease. Upon 47 LESSOR LESSEE 95- 865 termination of the Lease, Lessee shall immediately cease all operations at the Lease Property and surrender the Lease Property in accordance with the provisions contained herein. 18.2 REPEATED DEFAULTS If more than twice during any twelve (12) month period during the term of this Lease, Lessee fails to satisfy or comply with the same or substantially the same requirements or provisions under this Lease, including the non-payment when due of rent of any kind or nature, then at Lessor's election, Lessee shall not have any right to cure such repeated failure to satisfy or comply, the terms and conditions of the section of this Lease entitled, "DEFAULT', notwithstanding, unless such repeated default arises from acts of God or results from causes or conditions not attributable, directly or indirectly, to Lessee, its members, employees, agents or others within Lessee's control. In the event of Lessor's election not to allow a cure of a repeated failure to satisfy or comply, Lessor shall have all of the rights for an uncured Default provided for in the section of this Lease entitled "DEFAULT'. 18.3 LESSOR'S RIGHT TO CURE LESSEE'S DEFAULT If Lessee fails to make any payment to any third party or do any act required to be made or done by Lessee, then Lessor may, but shall not be required to, make payment to such third party or perform such act at the sole cost and expense of Lessee. Lessee shall pay Lessor, as Additional Payment due hereunder, upon receipt of a written invoice of costs from r Lessor, Lessor's -expenses in making such payment or in performing such obligations together with interest thereon at a rate equal to the prime interest rate (or such other rate as specified as the general interest rate on obligations in Florida by Chapter 687, Florida Statutes), whichever is higher, accruing from the date Lessor incurs such expenses until Lessee makes such payment to Lessor. The making of such payment or the doing of such act by Lessor shall not operate to cure Lessee's Default, nor shall it prevent Lessor from the pursuit of any remedy to s which Lessor would otherwise be entitled. 48 LESSOR LESSEE 95- MRIM 411 ARTICLE XIX NOTICES 19.1 NOTICE All notices or other communications which shall or may be given pursuant to this Lease shall be in writing and shall be delivered by personal service or by certified mail addressed to the parties at their respective addresses indicated below or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. NOTICE TO LESSOR: NOTICE TO LESSEE: City of Miami Miami Outboard Club City Manager Attn: Commodore 3500 Pan American Drive 1099 MacArthur Causeway (Miami, Florida 33133 Miami, FL 33132 WITH COPY TO: , City of Miami Office of Asset Management 300 Biscayne Boulevard Way Suite 400 Miami, FL 33131 ARTICLE XX MISCELLANEOUS PROVISIONS 20.1 INGRESS AND EGRESS Subject to rules and regulations, statutes and ordinances and terms of this Lease governing the use of the facility, Lessee, his agents, representatives, members, visitors and LESSOR LESSEE 95- 865 20.2 SUCCESSORS AND ASSIGNS This Lease shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. 20.3 SURRENDER OF LEASE PROPERTY Upon the expiration or earlier termination of this Lease by lapse of time or otherwise, Lessee shall promptly and peacefully surrender and deliver possession of the Lease Property to Lessor in accordance with the covenants herein contained. 20.4 AMENDMENTS Lessor and Lessee by mutual agreement, shall have the right but not the obligation to amend this Lease. Such amendments must be approved by the City Commission and shall be effective only when signed by Lessor and Lessee and shall be incorporated as a part of this Lease. 20.5 AWARD OF AGREEMENT Lessee warrants that it has not employed or retained any person employed by Lessor to solicit or secure this Lease and that it has not offered to pay, paid, or agreed to pay any person employed by Lessor any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Lease. 20.6 CONFLICT OF INTEREST Lessee is aware of the conflict of interest laws of the City of Miami as set forth in Article 5, Conflicts of Interest, of Chapter 2 of the Code of the City of Miami Florida, as amended, and agrees that it will fully comply in all respects with the terms thereof. 20.7 CONSTRUCTION OF AGREEMENT Florida. This Lease shall be construed and enforced according to the laws of the State of 50 LESSOR LESSEE 95- 865 20.8 COURT COSTS AND ATTORNEYS' FEES In the event that it becomes necessary for Lessor to institute legal proceedings to enforce the provisions of this Lease, Lessee shall pay Lessor's court costs and attomey(s)' fees. 20.9 WAIVER OF JURY TRIAL Lessee waives a trial by jury of any and all issues arising in any action or proceeding between the parties hereto, or their successors or assigns, under or connected with this Lease, or any of its provisions, the relationship of the parties, the Lessee's use or occupancy of the Lease Property, Lessee's rights thereto, and/or any claim of injury or damage and any emergency statutory or any other statutory remedy, or otherwise. 20.10 SEVERABILITY If any provision of the Lease, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Lease shall be construed as if such invalid part were never included herein and the Lease shall be and remain, valid and enforceable to the fullest extent permitted by law. 20.11 WAIVER No waiver of any provision hereof shall be deemed to have been made unless such { waiver is in writing and signed by Lessor or Lessee. The failure of either party to insist upon the strict performance of any of the provisions or conditions of this Lease shall not be construed as waiving or relinquishing in the future any such covenants or conditions but the same shall continue and remain in full force and effect. 51 LESSOR LESSEE 95- 865 20.12 CAPTIONS The captions contained in this Lease are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Lease or the intent of any provisions thereof. 20.13 RADON Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your county public health unit. 20.14 NO RECORDATION Lessee shall not record this Lease without the prior written consent of Lessor. However, Lessor may require that this Lease be recorded or a "Short Form" memorandum of this Lease be executed by both parties and recorded. , 20.15 TRIPLICATE ORIGINALS Three originals of this Lease shall be executed, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. ARTICLE XXI HOLDING OVER 21.1 HOLDING OVER i Lessee shall vacate the Lease Property upon the expiration or earlier termination of i this Lease. Lessee shall reimburse Lessor for and indemnify Lessor against all damages i incurred by Lessor from any delay by Lessee in vacating the Lease Property. If Lessee j remains in possession of all or any part of the Lease Property after the expiration of the Term or I_ 52 LESSOR _ LESSEE 95- 865 Additional Term, as the case may be, with or without the express or implied consent of Lessor, such tenancy shall be from month -to -month only and not a renewal hereof or an extension for any further term, and in such case, the Minimum Guarantee then in effect shall be increased by fifty percent (50%) and other monetary sums due hereunder shall be payable in the amount and the time specified in the Lease, and such month -to -month tenancy shall be subject to every other term, covenant and agreement contained herein, except that the month -to -month tenancy will be terminable on thirty (30) days notice given at any time by either party. ARTICLE XXII QUIET ENJOYMENT 22.1 QUIET ENJOYMENT Lessor covenants and agrees that so long as no default exists in the performance of Lessee's covenants and agreements contained herein, Lessee may peaceably and quietly hold and enjoy the Lease Property and all part thereof for that portion of the Lease -Term, free from eviction or disturbance by Lessor or any person claiming under, by or through Lessor. ARTICLE XXIII AFFIRMATIVE ACTION r 23.1 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, individuals with disabilities, 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 53 LESSOR LESSEE 95- 865 promotion. In lieu of such a policy/plan, Lessee shall submit a Statement of Assurance indicating that their business is in compliance with all relevant Civil Rights laws and regulations. 23.2 NONDISCRIMINATION Lessee agrees that there will be no discrimination against any person based upon race, religion, color, sex, ancestry, age, national origin, mental or physical handicap, in the use of the Lease Property and improvements thereof. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, Lessor shall have the right to terminate this Lease. ARTICLE XXIV MINORITY PROCUREMENT 24.1 MINORITYNVOMEN BUSINESS UTILIZATION Lessee shall make every good faith effort to purchase/contract fifty-one (51%) of its annual goods and services requirements from Hispanic, Black and Women businesses/professionals registered/certified with the City of Miami's Office of Minority/Women Business Affairs. Such lists will be made available to Lessee at the time of the signing of the lease with the City of Miami and updates will be routinely provided by the City's Office of Minority/Women Business Affairs. ARTICLE XXV ENTIRE AGREEMENT 25.1 ENTIRE AGREEMENT This Lease represents the total agreement between the parties. All other prior agreements between the parties, either verbal or written, are superseded by this Lease and are therefore no longer valid. LESSOR LESSEE 95- 865 IN WITNESS WHEREOF, the parties hereto have individually, through their proper officials, executed this Lease the day and year first herein above written. APPROVED AS TO FORM APPROVED AS TO INSURANCE AND CORRECTNESS REQUIREMENTS By: A. Quinn Jones, Ill Chief Frank Roliason City Attorney Risk Management THE CITY OF MIAMI, a municipal corporation ATTEST: of the State of Florida By: By: Walter J. Foeman Cesar H. Odio City Clerk City Manager WITNESSES Witness Signature Witness Signature Print Name Print Name STATE OF FLORIDA ) COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of 1995, by of the City of Miami, a municipal corporation of the State of Florida, on behalf of the corporation. He/she is personally known to me or has produced as identification and who did (did not) take an oath. Notary Public Signature Print Name of Notary Commission No. 55 LESSOR LESSEE 95- 865 By:_ _ By: _ Secretary Print Name Print Name & Title WITNESSES: Witness Signature Print Name Witness Signature Print Name STATE OF FLORIDA ) COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of 1995, by of the Miami Outboard Club, a non-profit corporation of the State of Florida, on behalf of the corporation. He/she is personally known to me or has produced as identification and who did (did not) take an oath. 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SAID LINE SLING THE ARC Or A CViYS WAVING A RADIUS Or 1946.00 FEET AND A CbTRAL ANCLt Or 27'aRl10- TOR A Dt STANCE Or 745.03 FEET To A POLNT1 TMtMCi ROM SO')R')S- EAST. A DISTANCE Or SNt.ai I =* MORE OR iltS, TO A POINT/ TKDPCK SOUTH 31'!0.13- EAST. AICNC THE BULKKUD LIME AS SMDNN ON MAP Of WATSON ISLAND• MOANED SY THE DEPARTNWT OF PUSLIC Postts,'CtTY OF MIAHI, FLORIDA. JOB NO. I. 7ORf, /ILS MO. uC. SAS. DATEO WV7t, A DIfTANCS Or 614.41 FEt'T, MORE OR LASS, TO THS POINT Or DECIMNING, CONTAIMI110 4.71 ACRES• MORE OR Lima. (1.74 ACRES IORt OR Lus 0tIM0 SUBMERGLO LAMO). , ALSO INCLVOINO Tur SOBMlAoto WED SALT OP SAID BVtiom" LINE act" MORN FANTICVLARLT DESCRIBto AS FOLLOWS$ FROM SAID POINT or SSGIMW IN01 TNONCi Post. M Ttt Il'70•IS- Hsr[ ONO $AID SUUOILAD LIME. A DISTAMCS Of 010.61. PEST ROSE OR LESS THENCY DEPARTING SAID SUL10tub Link. SOUTH 21•24•57• SAM A DISTANCE Or 177. 41 rtlTt TTMtNCS fOUTH 00.11•51• LAST, A OISTAMCZ OF )Oa.77 rIETN THENCE SOUTH OO•Sa•ce LAST, A DtSTANCi Or aOS.Sa ritT TO Tut )DINT Of SiGINXINO. CONTAINING 0.12 ACRES 06M OR LESS (BSING SV$NLINCEO LAND). werr— 2of'� 95- 865 � L Iwul lnucn I-Iw - /�`' •�, _ Ida 4 1 trtiwr t••N t4t 0LN Wp. tlY1W 40 .v NI p r•�F irkr W. r nt trrtraw r Mue••Wt. ` ' yMy Ita,,N••• IW1LL. JM «. t. tnt, LtY M. M. Yt. ' A M Tb It.I�. rlq a;-y N1L+LIy1vrY� 111t « la'LTL t err tr rlrr rt «.ea•w n nu rne. •' v� \ •� .n.1O1int ��� �„y LwiL tart t«1 t111tr r YrTaf Y IwIM n t R �'Y M Na®rw YLt Y taaw lar«/ It Ala«t111•tt !O • ' J � N taT t W« r T« r•wtlan w «Irna Y tww. ✓'b f�/ Lqq YtLL«'i tW «LrwY tYYL Ytw M tMrr t••rtM1t•t � ✓ . ' t 1�r•.t.�Y L llwW tYr Lrt rll. rtN .W 11 W' ♦ , \ .1. IaiL %�LIN�NIR• \ \ I ILa r, • e..tlamro to J °9�� �� f�.. 't r'•+aw rut • � yarn tT>C t � +.. �.. 1 '�.i j• ''••M0.^M>Mt Ray F.T. SIA.c Ittf ♦ �i FO - �h•t. ,` of IOII N • N09. 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IY.Ir� lant•A rrirrt laver; srTRrii :.irnaa % uo. mn r .win.ir ' r� } t- 44 .�►d� jo��, � rat-�P�'.-�hI C:MMtMCT AT A POINT tMOMH AS VT. ETA. 4I*I4.06 ON TMt Or►ICIAL XAP Of LOCATION AMo SURrtT Or A PORTION or itrrtOM $lot. butcNATtb AS A PART Of STATt ROAD A-1-A tP bt,bt t•OVMTT. rWP.t"A. AS U".1tDtD 1w MAP "*It 14 AT P"t *,I OT Tilt ►VOUC AM"m Or mwc CWlwrv. PIORtDA, SAtb POtuT RttMo Txt .•Otor or TAMCtw" Or r"c CEMrtA unt Or TM[ Mot? SairronLr MOVE or OtNCML DOUbut HACARTW A CAUMM AVwutW. MORTWOTCALT "M M Tut AOUTHUMALt CORNEA Or WATSOu IStANb A" wAvtRC A DAbJUS or 1910.09 ►tCT A" A CtNTPAL AMOU Or 341471911i T%tMtt VON" 24-4S°10• CAST AIOMo Wit V"IAL LINO OP TRt AWVt Atul20ACO OURvt POR A DISTANCE Jr $5.04 ICE'S) TMCUCZ MOWTWWtSrt*Lr AtOMG "a MORTWOLr *IOMI.OI-VAt W-9 Or SA20 Ct"YAL DOUCW MACAR"n CAUSCWAT. "to UPC BEING Tut ARC Or A CUMV AAVtwo A 0"J" Or 1043.44 rtCT AM A CtutIWL AMCIS Or 03'05-10•. A OISTAutt Or 140.6% MET. TO M -00trT Or SCCt""IM41 TMXWCC CON.IMIt*C AtARd SAtO Rttbtr-Or-rutf U t IUIb ARC Or SAID Ovavt AAYtRC A AADtW Or 141S.09 rU.. T'MAOWA A C mT*AL AWOL! or 05112•411. A DISTAOM Or 300.N rtCT/ Tutp" VOATM 10-4S•51- CAST. A OISTAOCt Or $/S.AS rttT1 TXWC SOt1t7f SO'If'»• WEST. MOM TMt MOM"CRLT LINE Or UASC ARG 1. A OtSTA»CC Or $49.44 rMt MORE OA 1atS TO Tut POINT or OCOISRsoc. COWTAIMtR6 1.2E Amt# MORE OA Lit" 1.03 ACRES mat OR sass "too SVwtt0 ea tAub1.- 95- 865 x MIAMfI OUTBOARD CLUB PLANNED CAPITAL IMPROVEMENTS (NON -PRIORITY ORDER) 1. Parking (Paving, Lighting) 2. fencing (New & vinyl slatting of existing fence) -3. Gates 4 Landscaping 5. Irrigation 6. New Entrance Facade 7. Security System 8. Smoke Alarms 9. Air Conditioning & Upgrade A/C Electrical 10. Roof Repairs 11. Bar Addition 12. Kitchen Extension r TOTAL $ 300,000.00 95- 865 i r CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM 28 To : The Honorable Mayor and Members oArE : NOV 8 1995 FILE of the City Commission SUBJECT : Lease with Miami Outboard Club on Watson Island FROM TCes I REFERENCES: City, ENCLOSURES: RECOMMENDATION: It is hereby recommended that the City Commission adopt the attached Resolution authorizing the City Manager to enter into a lease agreement, in substantially the attached form, with the Miami Outboard Club; a non-profit corporation, for the leasing of certain real property and improvements thereon, within Watson Island, along with bay bottom lands (the `Lease Property"), said lease to be: (1) for an initial period of twenty years with and option to renew for two additional five year periods; (2) at an initial monthly rental of $5,417 plus ten percent (10%) of gross restaurant revenues in excess of $10,000 per month; (3) providing for community service credits; and (4) in accordance with, the terms and conditions contained in said lease agreement BACKGROUND: Pursuant to City Commission direction, the Office of Asset Management negotiated a lease agreement with the Miami Outboard Club (the "Club") for the provision of marine -recreation services in accordance with the provisions of Section 29-D"of the Charter of the City of Miami. The highlights of the lease agreement are as follows: _ Term: 20 years commencing January 1, 1996 and expiring December 31, 2015 j Options: two 5-year options Additional Property: In the event the public access road lying within an area adjacent to the Club is realigned within 2 years of January 1, 1996 or if the Club elects to realign said I road, the City Manager and the Club will modify the legal description of the Lease Property to include the adjacent area and at such time the Club will be required to provide adequate parking for its patrons and employees within the Lease 1 Property. If the road is not realigned by December 31, 1997 and the Club elects not to realign the road, the Club shall have until December 31, 1998 to provide adequate vehicle parking within the original Lease Property area. Rent: $5,417/mo or $65,004/yr plus 10% of gross restaurant revenues in excess of $10,000/mo ("Gross Restaurant Revenues Base") vpe -1 95- 865 The 'Honorable Mayor and Members of the City Commission Page 2 Community Services: Club must provide: (a) 3 times a year, recreational and educational activities for at least 30 participants on Saturdays or Sundays with at least 2 of these events being boating excursions. The Department of Parks and Recreation will provide the names of the children who will participate; (b) 3 times a year the City Commission may designate dates for use of the Club facilities for public events, at no cost to the City. It will be the responsibility of the Club to be proactive in requesting the event dates from the City. In the event the City does not need their services, the Club may request to substitute an alternate community service event. Community Service Credit: A maximum of 6 community service credits may be given in any lease year. A community service credit shall be valued at $5,000 per event. The value of 6 events shall be averaged over a twelve month period and the averaged amount shall be deducted from the monthly rent payment CPI Escalations: The monthly rent, the community service credit value and the Gross Restaurant Revenues Base shall be adjusted annually by any increase in the Consumer Price Index, All Items, Miami -Ft Lauderdale, Florida. Security Deposit: The Club shall deposit $8,751 with the City as a security deposit Initial Improvements: Within five years of January 1, 1996, the Club shall perform improvements with a value of approximately $300,000. Improvements include fencing, gates, landscaping, irrigation, new entrance facade, security system, smoke alarms, air conditioning, roof repairs, bar addition, kitchen extension and parking area. City's Improvements: The City has previously appropriated $50,000 for use on the property. These monies will be used by the City to provide code upgrades (ie. electrical, plumbing, ADA improvements) Maintenance: The Club shall be responsible, at its sole cost and expense, to maintain the property including, without limitation, air conditioning, plumbing, electrical, floor coverings, structural, roof repairs and replacements. In addition, each year the Club, at its sole cost and expense, shall have a qualified property inspector perform a physical inspection of the property including all structural and mechanical components as part of a preventive maintenance program. Within 60 days after completing the inspection, the Club shall submit a remediation plan to the City, to be approved by the City Manager, for all conditions requiring repair, replacement or modification as noted in the inspection report. 95- 865 t1. -.,. .. .. ... ... .. The Honorable Mayor and Members of the City Commission Page 3 Reserve Fund: A Reserve Fund is being established to facilitate the Club's ability to fund capital improvements to the property. During Lease Years 1 through 5, the Club will be required to deposit in a separate account by the end of each lease year, the sum of $10,000. By the end of the 5 years, the Reserve Fund shall have an ending balance of $50,000. Each lease year thereafter, the Club shall make an Annual Contribution equal to the immediately preceding lease year's Annual Contribution increased by any change in the CPI or 5%, whichever is less. Taxes: The Club shall pay all taxes, charges, or assessments levied against the property and improvements, personal property or operations thereon including ad valorem taxes. It is recommended at this time that the City Commission adopt the attached Resolution authorizing the City Manager to enter into the proposed lease agreement with the Miami Outboard Club. i 95- 865 MIAMI� . mot O u"'O 1 R.D CL UB, Inc. * 1099 MACARTHUR CAUSEWAY * MIAMI. FLORIDA 33132 November 8, 1995 Mr. Eduardo Rodriguez, Director Office of Asset Management 300 Biscayne Boulevard Way, Suite 400 Miami, FL 33131 Dear Mr. Rodriguez: This letter serves to formally notify you that the Miami Outboard Club Lease Committee, on behalf of its members, has reviewed and approved the proposed lease agreement being presented to the City Commission for approval If you require further information, please call me at 371-4221. Sincerely, For a se Committee Jac cGov n, Chairperson ick Taylor 95- 865