HomeMy WebLinkAboutItem #60 - Discussion ItemCITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
The Honorable Mayor and Members DATE:
of the City Commission
SUBJECT
A�
REFERENCES:
Cesar H. Odio
City Manager ENCLOSURES:
April 24, 1991 FILE
DISCUSSION ITEM:
DINNER KEY BOATYARD
JOINT VENTURE REORGANI-
ZATION
MAY 9TH MEETING
I would like to discuss the Dinner Key Boatyard Joint Venture
Reorganization at the May 9th Commission meeting after 5:00 p.m/
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CITY OF MIA%';. FLORIDA
INTER -OFFICE MEMORANDUM
TO
Cesar H. Odi o DATE : April 299 1991 FILE
City Manager
SUBJECT : DRAFT LEASE AGREEMENT
AND SUMMARY OF SIGNI-
FANT CHANGES
' REFERENCES:
FROM Herbert J. Bailey Dinner Key Boatyard
Assistant City M g Property
ENCLOSURES:
Based on several meetings held between the administration, the
law department and Faison Associates, attached for discussion at
the May 9th City Commission meeting is the draft agreement
between the City of Miami and Dinner Key Boatyard Joint Venture.
Also, attached is a summary of the significant changes, deletions
and additions to the original agreement. Those changes that the
City has agreed to have been included in the attached draft Lease
Agreement. Those changes that Faison Associates would like to
incorporate into the agreement are detailed in the attached
letter.
Please note that the U.S. Bankruptcy Court has informally
indicated that, subject to the consent of the City Commission, it
would approve a reorganization plan substituting Faison
Associates as the equity partner of the Dinner Key Boatyard Joint
Venture.
Attachments
1
91- 380.1
e
SUMMARY OF SIGNIFICANT CHANGES, DELETIONS AND ADDITIONI
TO THE LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND
DINNER KEY BOATYARD JOINT VENTURE _
Section 1.4 - CERTIFICATE OF OCCUPANCY:' deleted the word
"building" and added "premises".
Section 1.8 - CITY MANAGER: deleted phrase "except that
Subleases to Dinner Key Boatyard Limited Partnership and Cal -
Florida Marine Industries, Inc. copies of which are attached
hereto and made a part hereof as composite Exhibit "A", are
approved upon execution of this Lease."
Section 1.14 - EVENT OF DEFAULT: deleted repititous wording "an
event of Default".
Section 1.20 - LESSEE: deleted "Cal -Florida Marine Industries"
and replaced with "Faison Enterprises or a partnership to be
formed".
Section 1..?3 - SECURITY DEPOSIT: grammactical change in word
"cashier's check"; added the word paid in regards to interest
on Security Deposit.
Section 1.24 - THE BANK: deleted reference to "Southeast Bank"
and generalizes with just the word "bank".
Section 1.26 - SUBLESSES: deleted reference to Dinner Key
Boatyard Limited Partnership and Cal -Florida Marine
Industries, Inc.
Section 2.1 - DESCRIPTION OF MARINA SITE: The marina site is
** leased AS IS . NOTE: LETTER FROM FAISON STATES THEY WILL NOT
TAKE THE —STYE "AS IS".
Section 2.2 - TERM OF LEASE: changed year from 2020 to 2036.
Section 2.3 - THE LESSEE'S DATE OF POSSESION: added phrase "(the
"Date of Possession")"
Section 3.2 - MINIMUM ANNUAL GUARANTEED RENT: deleted "no less
than" and "of fifty percent (50%)"
Section 3.4 - INTEREST ON LATE BASE RENT PAYMENTS: deleted
"twelve percent (12%) and added "prime plus one-half percent
(prime + .5%) per annum (for the purposes of this Lease
Agreement "prime" shall mean the prime interest rate as
published in the Wall Street Journal)". NOTE: Letter from
Faison requests the prime rate sit at that rate published
daily for NCNB, Florida.
Section 3.5 - BASE RENT COMMENCEMENT DATE: changed original date
of "February 1, 1990" to "the Date of Possession". Added new
phrase which reads "Amount (s ) as accrued and unpaid
Base Rent for the period from Date of Possession to date of
execution of the Lase (the "Date of Substitution") shall be
paid to Lessor not later than the close of business on the
Date of Substitution. NOTE: Faison's letter states that "Our
proposal to you was that one half of the back rent would be
paid at Date of Substitution and closing of our financing, 1/2
of the monthly rent would be paid during construction and for
a period not to exceed 24 months from C.O., and the balance of
the arrearages will be paid during the balance of the lease.
Our same proposal remains the same."
91- 380-1
3
Section 3.6 - PERCENTAGE OF GROSS REVENUES PAYABLE IN EXCESS OF
MINIMUM ANNUAL GUARANTEED RENT: added the words "Annual
Guaranteed" to this section's title.
Section 3.7 - OVERPAYMENT AND UNDERPAYMENT: added the phrase
"and if such overpayment was paid on the demand of the CITY
and the amount demanded is found to be in error then the CITY
shall refund the overpayment with interest thereon at the rate
of prime plus onc;r-half percent (prime + .5%) per annum from
the date of overpayment,"
Section 3.9 - BASE RENT DEFERRALS: changed the Base Rent deferral
from twenty percent to fifty percent (50%) and added the
following: "In addition to the above, LESSEE shall be granted
a deferral of 50% of the minimum annual guaranteed rent for
not longer than 24 months from date of issuance of a
Certificate of Occupancy. Also added " and in no event shall
rent paid to the Lessor ever be less than $202,500.00."
Section, 3.10 - COMPARABLE USES TO INCREASE REVENUES: deleted
"that the cumulative maximum eighteen (18) month Base Rent
deferral period provided for in the preceding section of this
Lease has expired," _
Section 3.12 - LEASE TERMINATION: changed timeframe from 18
months to 24.
Sections 7.2 - 7.4: substituted the word "Bank" in place of
"Southeast Bank".
Section 7.5 - ASSIGNMENT: added "the Lessee shall maintain the _
proportionate respective minority interest as set forth in
Exhibit "G". NOTE: FAISON letter requests the caveat that
approval cannot be unreasonably withheld.
Section 7.6 - SUBLEASE CONTRACT FORM: deleted second paragraph
of this section that dealt with subleases and Cal -Florida.
** Section 8.1 - ALLOWABLE USES: substituted the word "LIQUOR" for
"wine".
Section 9.1 - SITE LEASE "AS IS": added "especially with respect
to environmental contamination and pollution, has reviewed the
complete Metropolitan Dade County, Department of Environmental
i Resources Management, file concerning the premises....and is
*k fully aware of NOTE: FAISON LETTER STATES THE "AS IS"
PROVISION IS UNACCEPTABLE AS STATED BEFORE.
Section 11.1 - OPERATING PLAN: added phrase "be less than that"
with regards to the minority composition.
Sections 15.1 and 15.2 - INSURANCE - GENERAL REQUIREMENTS: NOTE:
FAISON LETTER STATES THAT THE INSURANCE CLAUSES, AS SUBMITTED
BY THE CITY, MAKE THE LEASE UNFINANCABLE. THE CHANGES FAISON
HAD SUBMITTED WERE CAREFULLY DETERMINED AND SELECTED BY THEIR
INSURANCE ADVISERS AFTER CAREFUL DISCUSSION WITH THE FINANCING
COMMUNITY. FAISON STATES THAT THEY CANNOT GUARANTEE THAT THE
PROJECT WILL BE FINANCABLE IF THE CHANGES ARE NOT ACCEPTED AS
SUBMITTED.
Section 15.3 and 15.5- change in title from Insurance Manager to
Insurance Coordinator.
,Section 18.1 - EVENTS OF DEFAULT: Changed heading from
"TERMINATION OF AGREEMENT" to "EVENTS OF DEFAULT". Minor
changes in parts a.b. and c. with an addition of part d. which
reads, "Any of the aforementioned Events of Default specified
in a, b or c above shall operate as an automatic termination
of the Lease after the specified period of cure has passed.
At that time, the Lease shall automatically terminate, and
**Change would be in violation of RFP. 9 1- 380.1
q
possession of the Demised Premises, and title to the
Improvements, shall revert to the CITY, without the necessity
of a civil action, but nothing herein will preclude any action
by either party in any court of competent jurisdiction for a
judicial determination of the rights of the parties."
Section 18.3 - LESSEE'S CONTINUING OBLIGATIONS: NOTE: Faison
letter states that "this new paragraph is unacceptable.
Acceleration of rent is not permitted by Florida Law. We
understand that the difference between 'replacement rent and
contract rent is the obligation in question."
Section 20.1 - NOTICES: deleted words "if delivered personally"
and names associated with Cal -Florida.
Section 27.1 - FORCE MAJEURE: changed wording from "excused" to
"deferred".
Section 32.4 - NO BROKER: NOTE: Faison letter asks that this be
reciprocal.
Section 33.1 - EMINENT DOMAIN: rewritten and changed to
"Government Taking" - The provisions of this Section do not =
apply if a government uses its power of eminent domain whether
for a total, partial or temporary taking or under threat of
condemnation. If the taking is by a governmental entity,
Florida Statutes governing eminent domain will apply.
I
palsan Associates
NCNB Plato
North Ashley 51.
Suite 2000
Tampa, FL 33602
813/229.8545
April 9, 1991
Mr. Herb Bailey
Assistant City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
Re: Dinner Key Boatyard
Dear Herb,
I want to thank you for your time last week to discuss the
last remaining issues of the lease. We are encouraged by
your pragmatic approachto the resolvecthosens and issuesfsolthattweecanl
have the opportunity to
conclude our negotiations.
The following is a list of outstanding business points you
asked me to outline in writing to you:
D� cJ o 1, 1.18 The fast sentence states
a fuel
r �" tax. This was previously
overlooked, but has additional
financial impact and we must reject
this provision.
o P 7,Para.2.1
0
As we have discussed, we will not
take the site "as is". Our
exposure must be limited or else we
cannot finance the project, nor
would we leave ourselves to unknown
limits of liability.' Your
additional language, it it remains,
would cause us to terminate
discussions.
0
PCLr 13 - —o Pa 9, Para. 3.4
o Pa�19,Para. 3.5
E7
We would like for the prime
rate to sit at that rate
published daily by NCNB,
Florida.
Our proposal to you was that
one half of the back rent
would be paid at bate of
Substitution. -and closing of
our financing, 1/2 of the
monthly rent would be
paid during construction and
for a period not to exceed
24 months from C.O., and
the balance of the arrearages
will be paid during the
balance of th(: '.ease. Our
proposal remains the same.
P(Le.0 2$ o Pa 5, Para. 7.5 We must have the caveat that
your approval cannot be
unreasonably withheld.
3A o P;Wlf, Para. 9.1 The "as is" provision is
unacceptable as I have stated
in my first paragraph.
A 3 !�o Pa 42, Para. 15.1 The insurance clauses, as
submitted by the City, make
the lease unfinancable.
The changes we submitted were
carefully determined and
selected by our insurance
advisers after careful
discussion with the financing
community. We cannot
guarantee that the project
will be financable if the
changes are not accepted as
submitted by us.
la 450 P e 52, Para. 18.3 This new paragraph is
unacceptable. Acceleration
of rent is not permitted by
Florida Law. We understand
that the difference between
replacement rent and contract
rent is the obligation in
question.
Q j30 Pa 61, Para. 32.4 Please make reciprocal.
1"A
i.
These are the issues still outstanding. Resolution of these
are required before we can agree to the lease.
An important issue arose on my last visit in Miami which
causes us great concern. We have been advised by counsel
that it could take a minimum of six months to get necessary
approvals and permits to instruct the facility as
_ pro -formed. We absolutely must have all necessary per
before we will sign the lease, close financing or start
construction.
Therefore, as we have agreed to pay for the back rent to
date, I cannot agree to contintw to pay the rent due the
City while we wait for permitting. Any assistance the
City can bring to bear in expediting this process,
I would
has a
like to antcfinancialuss with yimpactlonnow thethat citytofsMiami.
signifific
If you can quickly respond to these matters, it would be
greatly appreciated.
S cerely,
f
Bradfor C. Burgess
Regions Partner, uth Florida
BCB/ng
cc: Michael Moore
Tony Skillbeck
LEASE AGREEMENT
Between
THE CITY OF MIAMI
and
<:
DINNER KEY BOATYARD JOINT VENTURE
i
-
1
Y
Key:
nn, d�hne indicates additions to original.
Lease,
(Brackets] indicate language deleted from
original Lease or from
Faison proposal,:
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SECTION I
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
SECTION II
2.1
2.2
2.3
DEFINITIONS
Architect .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Building Permit ............................
2
Certificate of Insurance ...................
2
Certificate of Occupancy ...................
2
Changes in the Work....... .................
2
Change Order ...............................
2
CityCommission ............................
3
CityManager ...............................
3
Construction Cost ..........................
3
Construction Documents .....................
4
Consultants ................................
4
Contractors ................................
4
Contracts for Construction .................
4
Event of Default.
5
Demised Premises or Premises ...............
5
Design Development Documents ...............
5
Force Majeuere .............................
5
GrossRevenues .............................
5
Improvements ...............................
8
Lessee .....................................
8
Net Brokerage ..............................
9
Schematic Design Documents .................
9
Security Deposit ...........................
9
�[] Lender .................................
10
Sublease ...................................
it
Sublessees .................................
11
Work (capital "Work") ......................
11
GENERAL TERMS PERTAINING TO THE SITE
AND TERM OF AGREEMENT
Description of Marina Site ................. 12
Term of this Lease ......................... 12
The Lessee's Date of Possession............ 13
SECTION III
CONSIDERATIONS
3.1
Base Rent ..................................
13
3.2'
Sales and Use Taxes ........................
14
3.3
Interest on Late Base Rent Payments........
14
` 3.4
Base Rent Commencement Date ................
14
- 35
Percentage of Gross Revenues Payable in
Excess of Minimum Rental ...................
14
3.6
Overpayment and Underpayments ..............
15
3.7
No Effect on Base Rent .....................
is
1.8
Base Rent Deferrals ........................
16
3.9
Comparable Uses to Increase Revenues.......
16
3.10
3.11
Tax Returns ................................
Lease Termination
17
17
..........................
SECTION IV
RECORDS, AUDITING, ANNUAL FINANCIAL REPORT,
NO PARTNERSHIP OR JOINT VENTURE RELATIONSHIP
' 4.1
Records ....................................
18
A.2
Annual Financial Reports ...................
18
SECTION V
LICENSES; LEASE CHALLENGES
5.1
Licenses and Permits .......................
19
5.2
Challenge to Lease .........................
20
_SECTION VI
MAJOR CONSTRUCTION AND IMPROVEMENTS
6.1
Schedule of Construction of Improvements
and Construction ...........................
20
6.2
Plan Approvals .............................
23
6.3'
Quality of Construction ....................
23
6.4'
Changes in Plans and Specifications.,,,-,,,
23
5
Procedures for Approval or Disapproval.....
24
Might of
Inspection .......................
24
tt
x
91- 380
Jt
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6.7
Construction Schedules and
Completion Dates ...........................
24
,6.8
Improvements to be Property of Lessee
During Term; City Afforded Option to
_.
Purchase Personalty ........................
25 -
6.9
Cost of Improvements and Equipment.........
26
6.10
Lien .......................................
26
6.11
Payment/Performance Bonds ..................
27 i
SECTION VII
SUBORDINATION OF BASE RENT PAYMENTS TO BANK
NOT ENCUMBP.ANCE OF ASSIGNMENT OF LEASEHOLD
7.1
No Subordination
27
.7.2
Cross -Default Clause .......................
27
7.3
Assumption by ^[] Bank of Non -
Monetary Defaults ..........................
28
7.4
Southeast Bank Right to Cure Period........
28
7.5
Assignment .................................
28
7.6
Contract Forms .............................
29
SECTION VIII
USE OF THE PREMISES
`=
8.1
Allowable Uses .............................
30
8.2
Continuous Uses for the Benefit of the
Public.....................................
31
8.3
No Unlawful Use ............................
32
8.4
Lessee Contributions .......................
32
SECTION IX
NO REPRESENTATION BY CITY
9.1
Site Leased "As Is" ........................
33 _
SECTION X
CITY NOT LIABLE FOR FAILURE OF UTILITIES
10.1
City Not Responsible for Utilities.........
33
SECTION XI
OPERATING PLAN, REPAIR AND ALTERATION
11.1
Operating Plan .............................
33
11.2
Repairs ....................................
34
11.3
Indemnification.....
34
11.4
Operation of Marina to be Continuous.......
35
SECTION XII
MAINTENANCE AND MANAGEMENT
12.1
Maintenance and Management ...............
35
SECTION XIII
LESSEE TO COMPLY WITH LAWS
13.1
Lessee to Comply with Laws .................
36
SECTION XIV
INSPECTION BY CITY
14.1
Inspection by City .........................
36
SECTION XV INSURANCE
15.1 General Requirements... ................ 36
15.2 Insurance Shall be Provided as New
Facility and Improvements Are Built and
Placed Into Public Operation ............... 38
15.3 After Completion Of All improvements,
the Additional Insurance Coverage to be
Provided By Lessee ......................... 39
15.4 Cooperation with Insurance Proceeds........ 40
15.5 Deposit of Certificates and Insurance
Documents .................................. 41
15.6 Change of Coverage ......................... 41
SECTION XVI
DAMAGE AND DESTRUCTION
16.1
Obligation to Rebuild ............... :........
41
16.2
Damage Less than $200,000.00...............
42
16.3
Damage of $200,000.00 or. More ..............
42
16.4
Disbursement Requests. .............. 0 ....
43
16.5
Lessee to Furnish Assurances ...............
43
16.6
No Termination Of Lease ....................
43
16.7
No Obligation To Restore Under Certain
Circumstances .............................. 43
16.8 Excess Insurance Proceeds .................. 44
ii -
91-- 380•1
a
SECTION XVII
CITY MAY CURE DEFAULTS
17.1
City May Cure Defaults ......................
44
SECTION X'VI I I
EVENT OF DE AULT - [ ]
18.1
Events of Default ..........................
44
18.2
Right to Relet .............................
46
18.3
Lessee's Continuing Obligations............
46
18.4
No Waiver ..................................
46
18.5
Rights Cumulative ..........................
47
18.6
LESSEE Responsible for Sublessees..........
47
SECTION XIX
CITY INTEREST NOT ENCUMBERED
19.1
City's Interest in Site Not to be
Encumbered.................................
47
SECTION XX
NOTICES
20.1
Notices ....................................
48
SECTION XXI
INDEMNIFICATION
21.1
Indemnification ............................
49
SECTION XXII
LIENS
22.1
Liens ......................................
50
SECTION XXIII
WAIVERS IN WRITING
23.1
Waivers and Surrenders to be in Writing....
51
SECTION XXIV
NO CONTRACTS BEYOND LEASE TERM
24.1
No Contracts Beyond Lease Term .............
51
SECTION XXV
NET LEASE
25.1
Net Lease ..................................
51
SECTION XXVI STATEMENTS
26.1 City and Lessee to Furnish Statement....... 52
SECTION XXVII FORCE MAJEURE
27.1 Force Majeure .............................. 53
SECTION XXVIII EQUAL EMPLOYMENT
28.1 Equal Employment Opportunity and Non -
Discrimination............................. 53
SECTION XXIX
29.1
29.2
29.3
SECTION XXX
30.1
SECTION XXXI
31.1
SECTION XXXII
32.1
32.2
32.3
32.4
32.5
32.6
32.7
32.8
32.9
32.10
32.11
32.12
32.13
DOCKAGE
Dockage Agreements ......................... 53
Dockage and Storage Rates .................. 54
Public Notices ............................. 54
HOLDING OVER
Holding Over ............................... 5
SIGNAGE
Signage....................................
55
MISCELLANEOUS
Conflict of Interest; Miscellaneous.......
55
Captions..................................
55
Gender of Words ............................
55
NoBroker ..................................
55
Severability ...............................
56
Successors.................................
56
Surviving Covenants ........................
56
Memorandum of Lease ........................
56
NoUsury ...................................
56
Consent....................................
57
Access and Location of Particular
Improvements...............................
57
PublicAccess Preserved ....................
57
Applicable Laws ............................ 50
Z
0
32.14
32.15
32.16
32. 1,
32.18
SECTION XXXIII
33.1
SECTION XXXIV
34.1
SECTION XXXV
35.1
SECTION XXXII
36.1
EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exh i.hi.t D
Exhibit E
Exhibit F
Exhibit G
Venue ......................................
Reimbursement ..............................
Minority Procurement Compliance............
Award of Agreement .........................
Employees ..................................
EMINENT DOMAIN
�[] City Taking ............................
WAIVER OF REDEMPTION
Waiverof Redemption .......................
EXHIBIT
Exhibit....................................
ENTIRE LEASE
Entire Lease; Amendments ...................
I
ontract Between Faison and Dinner Ke
Boatyard Limited Partnership
Construction of Improvements and Completion
Schedule
Legal Description of Demised Premises
Survey
Operating Plan
Request for Proposals
Dinner Key Boatyard Joint Venture Proposal
- dated February 17, 19H
58
58
58
58
58
61
61
61
61
- jv -
THIS LEASE AGREEMENT (the "Tease") made and entered into as
of this 1st day of February, 1990, ^[] by and between the City of
Miami, a Florida municipal corporation having its principal
offices at 3500 Pan American Drive, Miami, Florida 33133
(hereinafter referred to as "CITY") and Dinner Key Boatyard Joint
t
Venture, a joint venture organized and existing under the laws of
the State of Florida doing business in Dade County as Dinner Key
Boatyard (hereinafter referred to as "LESSEE").
W I T N E S5 E T H:
WHEREAS, the City of Miami, acting by and through its City
Commission, issued on November 14, 1988, a request for a unified
development proposal pursuant to applicable public procurement
methods for the planning and design, construction, leasing and
management of approximately 10.88 acres of municipally own
waterfront property located at 2640 South Bayshore Drive, Miami ,
Florida, (hereinafter "2640 South 8ayshore Drive for a
full service boat yard facility, marina, and ,-e.i_att�cd driciliar.y
Uses, inclusive of 6. 36 acres of tip] and and 4 . 52 acres c.il: tray
bottom contiguous to the upland t-�Ytendirig into Biscayne Pay; i.nri
WHEREAS, pursuant to said request for r.;rCDOSc, 1_ fo c 3
unified developmen't: project, I,F:SSEE staf md; -ted to 1:11 �'I'"' i r.s
unified development proposalt .:1a-C d 1'et,ruartr
"Proposal') , which was determ.lned ray t e City T.- Lie
the most advantageous proposal r<'Ceiv :d ITV It i c?I1r
WHEREAS, dire to its vc,lurnirlo�us na.t.ur�- , t ie
file at the C.it.y C II s t-irf.ic35f) Par: m; I
Mla1111, Florida and is J iI�(_)_-'}��-�? «tt'("� f, r" ='1 n h}'
.i
were attached h��rct��; alai
WHEREAS, tI CJ.t,v i
pesolutinn fio, 89--576 adclp').i---(_i AunE:
Boatyar.-d _3 i1 `,-
IIIii it,(J lii?mv OprllC'IIt !:?I l_fit-
0
NOW THEREFORE, in consideration of the mutual covenants set
forth herein and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto agree as
follows:
I.
DEFINITIONS
All terms defined in any part of this Lease shall have the
same meaning throughout this Lease. The following terms shall
have the meanings specified below in this definitional section.
1.1 hrchitect - Shall mean the firm of Bermello, Kurki
and Vera, which is a firm of professional architects license in
the state of Florida, who will perform architectural services.
1.2 Building --Permit - A permit issued by an appropriate
governmental authority allowing construction of Improvements.
1.3 Certificate ofInsurance - A document issued by an
authorized representative of an insurance company stating the
types, :mounts and effective dates of insurance ill force for a
designated insured.
1.4 Cex�t—i.fi.c *e c£�_)ccl a_ne,� A document issued by an
appropriate governmienta.l_ authority certifyi-ng that: all or a
designated portion of tile Premise 0illv ittl the
Provisions of applicable statu;.-es and reyulat:.ic,ns, and perr,litt:.i_ng
occupancy for its designated ust-z.
tC har..gt ��i.it_ Lhc -rr - t'flang� � i?1 t 11�., 6;�7:-r: shall
changes ordered by t.11e 1,I'.: I' 2 1-Ii 1.I:a 7C7S51_ I U C. L 1 Ui.
L-(?nStl'UL t;101i �� T1ilpi- :.'L?mf:'n s ClS T._Iii:SL
C<1F'rir-A e d �ti1_i.11li7 the �t.IIE Ics:S ID
.1TtrU'..t,_C)Se l �35 t(lat. i_F'Z.It" ' cd'iit_1
Change Order exceeds the sum of Ten Thousand Dollars ($10,000) or
involves an adjustment in time for more than 30 days, issued
after the execution of the Contract for Construction authorizing
a Change in the Work or an adjustment in the Contract for
Construction sum or the Contract for Construction time.
1.7 City Commission - The City Commission is the local
legislative and elective body of the CITY.
1.8 City Manager - The City Manager is the Chief
Administrative Officer of the CITY. The City Manager shall
include any duly authorize designee of the City Manager, and the
City Manager shall serve as the CITY's representative to whom
administrative requests for governmental approvals and/or
comments upon plans, diagrams, schematics and other documents
submitted by LESSEE shall be made. The written approval of the
City Manager shall be required for any concession, license,
sublease, or subcontract, the duration of which exceeds 30 days
and the total contract amount of which exceeds Twenty Five
Thousand Dollars ($25,000), between LESSEE and a business entity
or person which is routine in the marine industry, such as marine
mechanics or electricians, managers, concessionaires, and the
like. All approvals or disapprovals involving sales or
assignments of any interest of LESSEE are reserved by this Lease
to the City Commission-[]. The City Manager, in his discretion,
may obtain t}1e approval of the City Commission prior_ to
ul.Jertakinq said ri-ghts and obligations.
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fees, compensation paid to an architect, a landscape architect,
and/or an engineer: and architectural and engineering
consultant's costs or similar design costs incurred by the
LESSEE. Construction Costs shall exclude the cost of
environmental testing, clean-up and disposal, and attorneys,
lobbyists, and public relations consultants.
1.10 Construction Documents - Shall mean drawings and
specifications setting forth in detail the requirements for the
Construction of Improvements.
1.11 Consultants - Shall mean those experts who are
engaged by the LESSEE to render services in their areas of
expertise relative to the development of the Marina Site.
Consultants shall be deemed agents of the LESSEE. The LESSEE and
the Consultants are jointly and severally liable to the CITY for
all duties, obligations and liabilities arising by virtue of this
Lease or the performances of their services in connection with
the development of the Marina Site. Areas of expertise shall
include, but not be limited to, the following: cost estimating,
code/life safety, food service, landscaping, engineering, site
utilities, interior design, traffic, graphics, lighting,
telephone, trash, security, and cost review.
1.12 Contractors - Shall mean those persons or entities
responsible for performing the Work or providing the materials,
supplies and equipment identified in the bid and contract
documents for this project. All Contractors shall possess valid
MDade County Certificates of Competency and shall be those persons
indicated in the LESSEE's Proposal except as otherwise provided
4n Section 11.1 of this Lease.
1.13 Contracts for Construction - Shall mean contracts
with Contractors.
1 . 14 Event of. Default - Shall be _ [ j as defined in this
Lease.
1 . 15
s e s c)r
Prein i_s(,�5
- Shal l
rnean th e
Marina Site,
or the
Site, 1.0cat_ed
at the
2640 South
nayshor(;
Dr.i Ve Pruj--)erty, consisting C7L a l 0 . Qg ac.rC parct.l comp)-1 se(i of
6.36 acres of upland, 2.82 acres of bay bottom contiguous to the
upland exiting into Biscayne Bay, and 1.70 acres of contiguous
bay bottom offered by the CITY for expansion of existing marina
facilities. The Demised Premises are more particularly described
in Exhibit "C", which is attached hereto and made a part of this
Lease.
1.16 Design Dgve pment Documents - Shall mean drawings
and other documents which fix and describe the size and character
of the Construction of Improvements including, but not limited to
architectural, structural, mechanical and electrical systems,
materials and such other elements as may be appropriate. Final
Design Development Documents shall be subject to the written
approval of the City Manager. The Design Development Documents
shall be deemed approved unless the City Manager indicates
otherwise within 10 working days of submittal, unless the City
Manager is prevented from doing so as a result of Force Majeure
(as that term is hereinafter defined).
1.17 Force Majeure - Shall mean an act of God, weather
of unusual severity, fire, earthquake, flood, hurricane,
explosion, action of the elements, war (declared or undeclared),
invasion, insurrection, riot, mob violence, sabotage, malicious
mischief, failure of transportation; strikes, lockouts, action of
labor unions, condemnation, public requisition, laws, or order of
government.
1.18 Gross Revenues - Shall mean:
a. Retail Sales. The entire amount of the price
charged by or paid for all foods, beverages, supplies, equipment,
goods, wares, property, merchandise and chattels, of any kind,
sold, leased, or delivered, whether wholly or partially in cash
or by credit, and in the case of sales on credit, whether or not
payment is actually made therefore or otherwise. Gross Revenues
include the revenue from mechanical or vending devices (other
than telephones and soft drinks or similar devices operating
primarily and substantially for the convenience of LESSEE's
employees and located wifnin the LESSEE's offices). 11rov;d(3d,
however,
Gross Revenues
will
not mean
the rent
payments
to the
LESSEE or
Sublessee for
any
Sublease
in which
the term
"Gross
Revenues" is applied to the gross sales of the above referenced
merchandise. Further providing, that LESSEE shall pay CITY three
cents per gallon of all fuel and petroleum products sold on the
Premises, and not a percentage of the gross sales of such items.
b. Professional Services. All rents and revenues
received by LESSEE or Sublessee resulting from any occupancy or
use of the Marina Site or any part thereof by professional
service sublessees, such as marine surveyors, marine underwriters
or insurance salespersons, maritime attorneys, instructors, and
other like professionals, shall be considered Gross Revenues but
the gross sales of such services shall not be considered Gross
Revenues. Additionally, when the LESSEE or a subsidiary/
affiliate/Sublessee person or entity acts as a yacht broker, the
LESSEE shall pay the CITY net brokerage commissions resulting
from such brokerage sales at the same percentage as set forth in
Section 3.1 of this Lease.
c. Boatyard. All sales, commissions, or fees paid
for any services rendered or any items of personal property,
including without limitation boats, vessels, accessories,
supplies, equipment, hardware, sold or leased by LESSEE or
Sublessee are considered Gross Revenues, except that lease
payments paid by Dinner Key Boat Yard Limited Partnership to
Dinner Key Boatyard Joint Venture shall not be considered Gross
Revenues to Dinner Key Boatyard Joint Venture, but the Gross
Revenues of Dinner Key Boat Yard, Limited Partnership shall be
considered as Gross Revenue of Dinner Key Boatyard Joint Venture
for determination of Base Rent to the CITY by Dinner Key Boatyard
Joint Venture.
d. Marina and Dry Storaae. All gross receipts
received by LESSEE or Sublessee resulting from occupancy or use
of the Marina Site.
e. Miscellaneous. Receipts from all orders secured
or received at the Marina Site by telephone, mail, facs.imile
6 -
/9
machine, boat, to boat order canvassing operating at the Marina
Site or which the LESSEE, in the customary course of its
operations, would credit or attribute to its business on the
Marina Site, shall be considered Gross Revenues in connection
with those activities set forth in subsections A, C or D above.
All deposits received and not refunded to the purchaser in
connection with any transaction shall be considered Gross
Revenues.
Gross Revenues shall not include the following items:
a. The net amount of cash or credit refund made upon
gross receipts, where the merchandise sold is returned by the
purchaser to and accepted by LESSEE (in no instance exceeding the
selling price of the item in question);
b. The amount of any sales tax, use tax or retail
tax, which is imposed by any duly constituted governmental
authority directly on the sales and which is both added to the
sale price and is paid to the taxing authority by the LESSEE or
the amount of taxes, if any, applicable on the Base Rent from the
LESSEE to the CITY;
C. Returns of merchandise to shippers, suppliers and
manufacturers (when such returns are authorized by both vendor
and vendee);
d. Service, finance and interest charges imposed by
LESSEE for extensions of credit on sales by'LESSEE, only when
such charges are not included in the sales price of the items or
services sold;
e. Bad debts on a cumulative basis not to exceed ten
percent (10%) of LESSEE's total gross receipts in any applicable
year of this Lease; provided that LESSEE shall use due diligence
in effectuating its own collections by the use of collection
agencies, attorneys at law, nonjudicial sale of vessels pursuant
to Section 328.17, Florida Statutes, or similar remedies provided
by law, costs of collection efforts, including reasonable
attorneys fees;
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7 -
f. Income from the LESSEE's provision, without profit
to LESSEE or Sublessee, of telephone, facsimile machine, and
cable television services or other utilities to persons utilizing
the Marina Site, so long as the nonprofit status is confirmed by
CITY auditors according to generally accepted standard accounting
principles;
g. Maritime repairs, maintenance, labor, supplies and
similar charges when performed by LESSEE or Sublessee and payable
solely by insurance proceeds or by a salvage company or agency,
shall be deemed Gross Revenues only when payment is received by
the LESSEE from the proceeds of insurance, or from a salvage
company or agency, or the like, as applicable;
h. Sales made on personal credit of the purchaser,
not involving payment by credit card, money order, or other
commercial paper or negotiable instruments shall be deemed Gross
Revenues only when such payment is actually made to the LESSEE.
1.19 Improvements - Shall mean all Construction of
Improvements and all future construction and development on the
Demised Premises.
1.20 LE - Shall mean Dinner Key Boatyard Joint
Venture, a Joint Venture between "[] Faison Enterprises or a L1
partnership to be formed and Dinner Key Boat Yard Limited
Partnership, a limited partnership organized and existing by
virtue of the laws of the state of Florida, d/b/a Dinner Key
Boatyard, pursuant to the fictitious name laws in Dade County,
Florida. As of the date hereof, the general partner of such
limited partnership is Dinner Key Boatyard Management Company,
which is a corporation for profit organized and existing by
virtue of the laws of the state of Florida. This Lease shall be
equally binding on all corporate and natural general partners of
Dinner Key Boat Yard Limited Partnership in accordance with the
Florida Partnership Act and Florida Limited Partnership Act, and
all other applicable state laws. The liabilities for performance
of all covenants, terms and conditions herein (including without
limitation the payment of Base Rent to the CITY) shall be joint
91 - 380.1
:21
J
and se• eral obligations c, f each and every joint venturer, general
or lim._ted partner or ':.accessor entity or person which comprise
the i.;:.SSEE or SublesE.-'e, but as to limited partners, such
liabi.l l.ty shall Ha limi•.::td as provided in Florida Statutes.
1.21 Net Brokerg.-- - Shall mean the amount paid to the
yacht Broker above the amount remitted to the owner/seller less
comm}.r:sion fees paid to ;anyone other than the yacht broker, boat
stora,sa or dockage cost,,, boat maintenance costs, transactional
Costs .such as legal fees and documentation, taxes paid, direct or
proportional advertisin,. costs, direct or allocated costs such
as, oMce, rent, staff office equipment.
.22 Scherr,atic D-r�,,ign Documents - Shall mean drawings
and o,.her documents illistrating the scale and relationship of
the c:)mponents of the Improvements. Final Schematic Design
Documents for the Constr,tction of Improvements shall require the
written approval of th*� City Manager. Such Schematic Design
Docuin4:nts shall be deeded approved unless the City Manager
adv-.:*r::, otherwise within ten (10) working days of submittal to
the C.,ty Manager, unless the City Manager is prevented from doing
so ab result of an event described in Section XXIX of this Lease.
1.23 Security Qga.- sit - Shall mean the One Hundred
Thous:.nd Dollars ($100,COO) to be deposited by the LESSEE with
the (.:CTY's Finance Dire::or upon the execution of this Lease.
The S,::curity Deposit sha:4a be in cash, certified ..[ ] or cashiers'
check drawn on a Flor:'.d.a bank, an irrevocable unconditional
lett:,,• of credit in a form acceptable to the City Manager or a
cer, icate of deposit properly assigned to the CITY and shall
sere-.. as security for ttc proper completion of the Construction
of Improvements by the .aa.SSEE. Interest paid on the Security
Depos its,, tf any ,is paid. :shall inure solely to the benefit of the
LESSh . At such time as *;.,ie CITY certifies that the Construction
of 1uprovements have been completed in accordance with the terms
of pis Lease, the Security Deposit and all accrued interest
shah be returned to thy: LESSEE. During the tine that the
Security Deposit is held 1)y the CITY, in the event of a LESSEE
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91-- 380 '1