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HomeMy WebLinkAboutM-91-0394City OF MIAMI, FLORIDA INTF-A-OFFICE MEMOAANDUM fn : The Honorable -Mayor and Members Wt : of the City Commission Sua,ECt REFERENCE§: FROM: Cesar H. Odio City Manager ENCLOSURES: April 24, 1991 FILE: MAY 9TH MEETING L�J } CITY OF MIAs::. F4URIL)A . ' INTF-R-OFFICE MGMORANOUM _i Cer H. Odio ° City Manager WE : April 29 , 1991 FILE sualEct : DRAFT LEASE AGREEMENT AND SUMMARY NGESOF SINIi FANT CHA /mrmFFFkENCF-8 dinner Key Boatyard 7 { r4 � SUMMARY OF SIGNIFICANT CHANGES, DELETIONS AND ADDITIONS TO THE LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND - DINNER KEY BOATYARD JOINT VENTURE Section 1.4CERTIFICATE OF OCCUPANCY:r 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 1.23 - SECURITY DEPOSIT: grammactical change in word cashiers 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"., _ 26 SUBLESSES: deleted reference'to Section 1. 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 "AS 'I S" Section.2.2 TERM OF LEASE: changed year from 2020 to 2035. Section 2.3. THE LESSEE'S' DATE .OF POSSESION : added' phrase Y" (the "Date of Possession") r Section 3.2 MINIMUMANNUALGUARANTEED RENT: deleted no. les' than.. a'nd "of fifty 'percent ( 50%) { . t 4y7 Section 3.4 INTEREST ON LATE BASE RENT PAYMENTS: deleted "twelvepercent (12%) and added_ "prime plus one` -half percent (prime + " .�5�) pier` annum (for the` purposes of this Lease r A reement prime shall mean the; prime interest rate as 9izft :NOTE': Lettei^i from published in the Wa11 Street .Journal)" Faison. requests the prime.. rate sit at that rate publisherd, h dai ly. --for NCNB, 'Florida. Y Section 3.5 -BASE. RENT COMMENCEMENT DATE: changed original date of "February, 1, '1990", to "the Date of Possession Addedq ne.w h f :phrrase which reads "Amount ($ )" as' accrued 'and unpaid Base. Rent for the period from Date of Possession to date pf� execution of the Lase , (the, "pate of Substitution") sha11 f tie s paid to Lessor. not. 1 star than the c1 ose` of us Hessn ,f Date of Substitution . NOTE; Fai son' s 1 etter states that Q+ur a proposal: to, you was that one half of .,the back rent would be Paid .at Date- of Substitution. and closing' pf`our 'fihono'�D � of the .monthly rent would be paid during. constriction $nd f+r m; per Qd -not, Ato, excaed `2 months from.0. , at1d ;the bal ape yof t ;t E ` thy: arrearages.;-'will` , be psi during the balance# the y� �11 j C S a Rl e t `Fr p.o�al' 1�+a#nip te ((qq .M . R pp �qqyy. iGK�be.-, %li �1.Rti�y7! }�Y RFP! sere?{kt^i''� ,yi a 1 - Section 3'.6 - PERCENTAGE OF GROSS REVENUES PAYABLE IN EXCESS OF MINIMUM ANNUAL GUARANTEED RtNT: added the words "Annual Guaranteed" to this sections 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 one-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 $202,500.00." Section 3.10 COMPARABLE USES TO INCREASE REVENUES: deleted "that the cumulative maximum eighteen (18) month Base Rent deferral period provided for in the preceding section of this Lease has expired," � • TERMINATION: Section 3►12 LEASE TERMIN changed timeframe from 18 months to 24. Sections 7.2 7.4: substituted the word "Bank" in place of -� "Southeast Bank". Section 7.5 - ASSIGNMENT: added "the Lessee shall maintain the proportionate respective minority interest .as set forth in Exhibit "G". NOTE: FAISON letter requests the caveat that approval cannot be unreasonably withheld. Section 7.6 SUBLEASE CONTRACT FORM: deleted second paragraph ' of this section that dealt with subleases and Cal -Florida. * Section 8.1 - ALLOWABLE USES: substituted the word "LIQUOR" for "wine" Section 9.1 - SITE LEASE "AS IS added "especially with respect to environmental contamination and pollution, has reviewed the complete Metropolitan Dade County, Department of Environmental ' Resources Management, file concerning the premises...and is x � 1 ** _fully aware of". NOTE: FAISON LETTER STATES THE "AS IS" PROVISION IS UNACCEPTABLE AS STATED BEFORE. r Section_11.1 - OPERATING PLAN: added phrase "be less than that'" �4 with regards to the minority composition 1: Sections 15.1 and 15.2 - INSURANCE - GENERAL REQUIREMENTS: NOTE:: FAISON LETTER STATES THAT THE INSURANCE CLAUSES, AS SUBMITTED. �r IT MAKE THE LEASE UNFINANCABLE. THE CHANGES FAiSON; „' BY .THE CITY, M HAD SUBMITTED WERE CAREFULLY DETERMINED AND SELECTED BY THEIR INSURANCE ADVISERS AFTER CAREFUL DISCUSSION iITH'THE FINANCING. COMMUNITY. FAISON STATES THAT THEY CANNOT GUARANTEE THAT:: THE: PROJECT WILL BE FINANCABLE IF THE CHANGES ARE NOT ACCEPTED AS SUBMITTED. n4�r Section 15.3 and 15.5 change in title from Insurance Manager to Insurance Coordinator. rf Section 1$.1 - EVENTS OF DEFAULT, Changed hea dingi from "TERMINATION' OF AGREEMENT" to "EVENTS OF DEFAULT". Nl1nAr � changes in parts a.b. and c. p with an addition of art d which"x: reads, Any of the aforementioned Events of Default specified;, in a� b or c above shall operate as an automatictemitQN of the after the specified period of cure.has p.5$4.4 ' a At that time# the .ease shall automatically torM10,at+s,-' Qt�I d:.be to violation of 'RFP. °� x# ,`K.0 i t" SM x. ,..f „fit rDA3i.v. .., .•r :2 t. w r .,, :, v .,,x _ " _ _ _ Between THE` CITY OF MIAMI and y DINNER KEY BOATYARD JOINT VENTURE; i y f Y rC at. _ TABLE O CON 1 - DEFINITIONS I . . . a. n. c• e• •,a•i.a.•.••••..•,..,...••...a.Yai•i Archi ot#6a•,i i a • . • • ♦ • ♦ a•• . ! ". 6 • :g1iCifg Permit Ctificate of insurtlr' �- k FS t iffic&itn o ofoccupancy. .Y • Y a • ,• • • a i i a a 1.4 Car ♦•♦• �2 the Work.♦...•i•••ai,•♦a••Chaijes . . 1.6 Change Order..... i............•......, 1.1 City Commission ......... • .................a 1.$ City Manager........... a. •.... i. •... •a:.•.• 1.9 Construction Cost ................. •....... . 3 Construction Documents.•. ►..•i••.........i: 4 1.10 4 i.ii Consultants...................Y;..•ii....•• j 9 Contractors • • • • • • • ► . . • • • • . • • . • too • • • i Y • • . • • •! 1.12 k< E Contracts for Construction ................: 4 1.13 5 1'.14 Even t of Default ........................... 1.15 Demised Premises or Premises ....... 5 1.16 Design Development Documents .............. 5 ' 1.17 Force Majeuere ....................:•..•.►... 5 1.18 Gross Revenues ...........................►. 5 1.19 improvements ............................... 8 3. 1.20 Lessee......... •........................... 8 1.21 Net Brokerage ................... ...•......... 9 -; 1.22 Schematic Documents ................. 9 ti 1.23 Security Deposit ... .......................• 9 1.24 -[) I��................................. 10 { 1.25 Sublease ........................ .....`..... 11 ` Sublessees....-..' 11 1.26 3 1.27 Work (capital "Work")•..............•....:.. 11 i, SECTION II GENERAL TERMSPERTAINING TO THE SITE AND TERM OF AGREEMENT 2.1 Description of Marina Site...:...:.:. ••• 12 ,2 to €, 2.2 Term of this Lease. ..........`..... The Lessee's Date of Posse 2.3 ssion...:........ 13 x CONSIDERATIONS SECTION III A. 3.1 Base Rent.NO .......,............. 3:2' Sales and Use Taxes ............ : 14 3.3 Interest on Late Base Rent -Payments ... ••.: 14 14 tit +; Base ,Rent ,Commencement Date .. Ft�4 Percentage of Gross Revenues Payable in try 3.5 9 �i4 x Excess of Minimu, Rental::......:•... 3,6 Overpayment and Underpayments' .............. 15 No Effect on Base Rent .............. ...........:. 15 3.7 ........... 15 s, Base Rent' Deferrals'.... 3.8 F� 3,9 Comparable Uses to Increase Revenues. ••• ''16 3.10 Tax Returns...;•.•......•,•.•.•,•.,.. 17� i 3.11 Lease Termination:.. .:......... ....`, 17 SECTION IV RECORDS I AUDITING,` ANNUAL' `FINANCIAL ..REPORT, r tr NO PARTNERSHIP�OR JOINT -VENTURE RELATIONSHIP ;. Annual Financial`Reports.4.2 ...'. •.: l SECTION`V LICENSES; LEASE CHALLENGES Licenses and permits ....... 1 hnt 5 2 Challenge to Leasetoo ' h 4 Y SECTION'VI MAJOR CONSTRUCTION AND,`IMPRQVEMENTS , � Schedule" of Construction of ,Improvements ', � } and constructiOnoe :igot ,.„ ,;:, `} { Quality of Construction , , • , , , , , , , .. , ; ... i t�t��� 5.4 Cliaes n 1' an i �i Spadifita ; Ptutu for, ApiprovaV, or D� aa�prs�v�►�• � , , � . � ��� xt Rigut LLLL!� -`�.,u Y_- 6,7Construction Schadules and Completion>batesii•i••.aY,•i•••f•••aYi,iifi 24 •. •+� Improvements to be Property of Lessee - During Term; City Afforded option to 5 Purchase Personalty.... af.i•fi ♦..faa••i,• �•� Gast of improvement and Equipment.......... 2� 6Y . 9 Cost b••10 Lien rY•i•i.f. •. f. i••i.. YY if •ii •i i..i•if •i•f5 _ G•il payffi; t performance Bondsii•iii•.Yi•i.••a.a 27 SECTION VII SUBORDINATION OP EASE RENT PAYMENTS TO BANE NOT ENCUMBRANCE OF ASSIGNMENT OF LEASEHOLb 7.1 NyV oi�r.SuiJo dilation . i Y i Y. Y Y Y i. i. Y... Y. Y•. i i i. �� 7.2 Ci ss-Default Clause. Y Y Y a, a i i i i.. i... • i• 7.3 Assumption by "[j Bank of Non - faults 28 Monetary de...........i.i.,... .. Y.... 7.4 Southeast Bank Right to Cure Period. ....... 28 7,j Assignment ........................... �� 7.6 Contract Forms..........Y.................. 29 SECTION'VIII USE OF THE PREMISES , 30 8.1 Allowable Uses ............................. 8.2 Continuous Uses for the Benefit of the 1 Public.....................Y.,Y..,•........ 8.3 No Unlawful Use ............................ 32 8.4 Lessee Contributions ....................... 32 SECTION IX NO REPRESENTATION BY CITY 9.1 Site Leased "As Ise•, ....... 33 SECTION X CITY NOT LIABLE FOR FAILURE OF UTILITIES 33 10;1 City Not Responsible for Utilities......... SECTION XI OPERATING PLAN, REPAIR AND ALTERATION 11,1 Operating Plan ............................. 33 11.2 Repairs.. ....... :.. ... 34 f: 11.3 Indemnification....: ....................... 34 11'.4 Operation of Marina to be Continuous....... 35 SECTION XII MAINTENANCE AND MANAGEMENT 12'.1 Maintenance and Maement........ ....... 35 na 9 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 y SECTION XV INSURANCE x ,s General Requirements ......................; 36 15:1 15:2 Insurance Shall be Provided -as New Facility and Improvements Are Built and4 placed'Into Public Operation. ••••• 38 15.3 After Completion Of All Improvements, the Additional Insurance Coverage to be ^�$ Provided By Lessee ........................` 39 f: ' L5,4 Cooperation with `Insurance Proceeds•.•.••»• 40 15.5 Deposit of Certificates and Insurance, ;,t Documents.... •..•............,...:,.. 41 �� 15.6' Change of Coverage............,..;., SECTION XVI DAMAGE AND DESTRUCTION r' 16.1 Obligation to Rebuild.... ,,.. ....,il., '4� 1 2:. Damage Less than `$200, 000 00-, . , . ♦ r • , , r • . �4� 9" ���� .: 16.3 Damage .of $200,000.00 or More ....... , � 16.4 Disbursement Requests .41 , ...♦.♦..,,,..,.. 16.5 Lessee to Furnish hsourances.'e`.••,,•,+,,,*• 16.6 No Termi nation Of Lease, It 7 No Oblig tion TQ''Rest�re Vader- Cer-tair� i.,XCWl18tan@S ♦ ! Qp! ♦ ♦ ♦ rai/.! ♦p�•1yQ ! ♦ i r r ! s a s :w ! •err ♦ f s gAxA±�I+M nli bl once Procaede , ! ! ! :e ♦ ! .l ! ! ! ! :! ! ! .e ! r .` �� #��, T H s i SECTION XVII CITY MAY CURE DEFAULTS y 1/•1 City May Cure Defaults.....•...........•.. 44 SECTION XVIII — . . • i i . • i • • i . i • • i • i i • • . 44 Erients of Default i • • • a 1g•2 Right to �yRGlet•i ••.,ii.•.•i 1. •....i i.Y.i •.• 4�... 1813 Lessees Continuing pbligations.•...66601,46 4 18.4 No T�s Y eL . • ,i i . • . i • i i . i • . i . i . . . i • i . • i . i i i. . 46 0 18 5 Rights'Cumulat �re..•.•...,.....•..•i..i.••• 47 E 1g,6 LESSEE Responsible for Sublessees .......... 4 SECTION XIX CITY INTEREST NOT ENCUMBERED 19.1 cityy's Interest in Site Not to be . Enc LLmberedi . i . . . . . . • . i . . . . . . . . . . . . • i i 47� }' SECTION XX NOTICES 20.1 Notices ............. ...............•.•..... 48 SECTION XXI INDEMNIFICATION 21,1 Indemnification ............................ 49 SECTION XXII LIENS 22.1 Liens•...................................i. 50 ' SECTION XXIII WAIVERS IN WRITING 51 23.1 Waivers and Surrenders to be in Writing.... SECTION XXIV NO CONTRACTS BEYOND LEASE TERM No Contracts Beyond Lease 24.1 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- 53 27.1 Force'' Majeure............................... SECTION XXVIII EQUAL EMPLOYMENT 28.1 Equal Employment Opportunity and Non - Discrimination..........., .................. 53 SECTION XXIX DOCKAGE _ 29.1 Dockage Agreements......*' ......... 53 Y 29.2 Dockage and Storage Rates ................. 54 r` 29.3 Public Notices ......... ................ 54 �. Y SECTION XXX HOLDING OVER 30.1 Holding Over ..................... . 54 tR v SECTION XXXI SIGNAGE 31.1 Signage...........................:........ 55 SECTION XXXII MISCELLANEOUSK 32.1 Conflict of Interest; Miscellaneous..•.•• 55 rt'j 32.2 Captions ♦••••••••••••••♦•••••♦•♦•••,•••f♦•• Gender of Words ........... 32.3 ........ ..♦,.,:...'� z 32.4 No Broker..... ... ............••.♦.♦.i. -.5 32.5 Severability.............. 32.6 Successors . ♦ . ♦ , ..........._...... ♦ ...... 'a6 kX 32.7 Surviving Covenants,...... ♦.....,........_.6 x* ' 32.8 Memorandum of Lease 3Usury ies 2.r9�J . No ury• . • ♦ •. ...• • • • ♦ i , • 1., • • • • •.s • •. • , ♦ • ♦ f • • • T `,al�•f a<.. , 32.10 32.11 ,Access and Location of Particular R,'� Improvement$ .... , ... .. . • . , ... , . f ; 32.12 Public Access Preserved•,.,,.•.•.,...•`.:�;. 32•1:3 Applicable Laws r,•••••,,r•••••••.•,•••Mjg �� } y2I�. 14 •l3n 4i�i i•. Y i. i i. i Y i•i • i. i i• i Y i. i i• i i i•, i i i Be r JL 1 32 15 • ji i y�iy Be„pi`re�, i i••• i i • ,. � i pi'1 �ti�iiq {�����ylyl�ii�iluyl in�ty'i+iii •••Y iiyc iia 1MinOrit procurement Compliance.ii.ii..•i.i — - j.l1 � 2.1 � Award f Agreement.)►i•.ii...f..•i. w 1 7 •. •f�iii p �+ i•• 7D . 32.18 �i'� liJ eepi i i i i..-i • i i i• •• i i i• Y i i i •.i'Y:i. i = SECTION XXXIII EMINENT DOMAIN i• i. i Y .vl - 33.1 [ CityTakings . i • i. • i i•. i.. i.. i i i i i -h SECTION XXXIV WAIVER OE RE09MPTION `4.1 waiver of Redemption•i......••.•...••.i+,•i SECTION XXXV EXHIBIT - - 35,1 Exhibit...........................i.i..i... s SECTION XXXVI ENTIRE LEASE 61 Entire Lease; Amendments.... ...... �•1 EXHIBITS Exhibit A �[l Cinntract Between Fad son and Dinner_ Ka , Construction of Improvements and Completion Exhibit B Schedule C Legal Description of Demised Premises - Exhibit Exhibit D Survey Exhibit E Operating Plan i Exhibit F' Request for Proposals t „�, • b 4 D ne I� Boatyard jo; nt Venture vronosal dated } . t .. r ' Y �. , ;. .: t • 5 � } - if 2 v S � ' } rF L. OV0 + ,x r WM M = THIS LASE AGREEMENT ( the -Lease") made and entered into as b and between the City of of this lot day of February, 1990► "t) y :- Miami, a Florida municipal corporation having its principal offices at 3500 Pan American Drive, Miami, Florida 33133. (hereinafter referred to as "CITY") and Dinner trey Boatyard Joint Venture, a joint venture organized and existing under the laws of the State of Florida doing business in Dade County as Dinner trey • Boatyard (hereinafter referred to as "LESSEE"). IITaZ.1EKTH: 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 roximatel 10.88 acres of municipally own management of aPP y waterfront property located at 2640 South Bayshore Drive, Miami, Florida, (hereinafter "2640 South.Bayshore Drive Property" )-for=a full :service boat yard facility,- marina, and; related. ancillary uses, -inclusive of 6.36 acres .of upland and 4.52 acres', of bay bottom contiguous to the upland extending into Biscayne 'Bay;' and, s WHEREAS, pursuant to said request for a proposal for a. unified development .project, LESSEE submitted to the CITY,its j}#. fi unified -development proposal dated February 171 '1989 (-the }u t "Proposal"), which .was determined by the City Commission toy be themost advantageous-proposal.received by.it; and# WHEREAS, due' to its voluminous nature, the: Proposal'• is ;one file at the .City Clerk's office at 3500,-Pan 'American ;'Drive, A� Miami, Florida and is incorporated herein ,by '-reference :as were =attached hereto; and � 1� WHEREAS, the City' of Miami Commission' pursuant too-r Resolution No 89-576_;adopted June 22,' 1989, silected Vinner � y4 Pay Boat and Joint Venture, as the successful= ro oasr �� . uni#led d velooment' Qf. the 2640 South Ba shore.- A ivs Pr �++�ypy t _ xtd. Y f Change order exceeds the sum of Ten Thousand'Dollars involutes an ad3dsttnant in time for more than+ days, issued _ for Construction after the execution of the ContConstruction authoisitt�g a change the fork or an adjustment in the C+ntraot for. Construction sum or the Contract for Construction time. l y (" r brf►m 3 S i211 .� The City Commission is the local Of the CITY. legislative and elective body s ' The City. Manager is the Chief :. 118 r ; r vIana 1 Administrative of the CITY. The City Manager shall { include any duly authorize designee of the City Manager, and the er shall serve as the CITY's representative to whom City Mana g ad ministrative requests for governmental approvals and/off comments upon plans, diagrams, schematics and other: documents submitted The written ap by LESSEE shall be madeproval of the er shall be required for any concession, license, City Manager ' sublease, or subcontract, the duration of which exceeds 30 days and the total of total contract a which exceeds-Twenty,,Fie between LESSEE and a business',entity Thousand Dollars ($25000 )r t or pe rson which is routine in -the marine,industry,.such,as marine x cs or electricians, managers, concessionaires,.;andstthe mechanics >i like.. All approvals-or:,.disapp rovals involving; sales or assignments of any interest o f : LESSEE are reserved , by ahis Lease 3 it Commission"[j• The: City Manager, in his discretion, to .. the C y may ;obtain the; approval of.'the City Commission.: prior =to atr :Undertaking -.-said rights and obligations.. f Shall : mean :ahe...total cst, � o` > k of all Construction of 1.Improv+amenta 4f} Ifair market value, as set forth in Exhibit ;(."Construction. of improvements")�# P 33 ttached' hereto. and.made a . part -hereof , which. LESSEE , ises�u�+}fi a ¢¢ 7 �i4'RSa make- pursuant to this Lease in accordance with the; Des.g I s to ma p Development .`'Docut►►enta (as that term is .,hereinafter defirtel ) an x {4 d #, z as that term is hereinafter dfined`�'r F they Construction Documents ( The c netruot� +�n oats sham.nc�.u�s p�m.tting cosh (++ attQrney fees for enyironment,al. permitting dive , pe�ant �.e o tie.. tot.+l.nstruot.�an:" CQ�te) ` 6 . 74.&. s r z F ,N}'` F vt fees, n architect, a landscape •architect, corirpengat on paid to a andor an engineer: and architectural and en�iineerin.g j r similar design costs incurred b the consultants costs o LESSEE. sts shall exclude the cost Construction Co of .. and dis oral, and attorneys) _ environmental testing, clean-up lobbyists, and public relations consultants. Shall 1.1�f�ocnts .. Mean drawings UM and L. ng forth in detail the requirements for specifi cations settithe Construction of Improvements. 1.11 CnnsultantSi - Shall mean those experts who are b the LESSEE to render services in their areas of engaged y ex ertise relative to the development of the Marina Site: P 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 inc lude, but not be limited to, the following: cost estimating, `sneering, s enite code/life safety, food service, landscaping, g utilities, interior design, traffic, graphic's, lighting, telephone, trash, security, and cost review. 1:12 contractors Shall mean those persons or entities sb respon Bible for performing the Work or providing the materials, r' supplies'' and equipment identified in the bid and contract Y F documents for this project. All Contractors shall possess valid k t fi Count Certif ieates of Competency and else)) be those `persons Dade C Y _. indicated in the LESSEE's Proposal except as"otherwise provided s4R in Section 11.1 of this Lease. t r Shall `mean °cc�n'�cati°� 1:13 �entracts for ConstrLr-tion - Y ya with` Contractors. s defined ..int.ii t� Shall be ?, Lease • 8 : or Pre sea Shall` meah I 1, ©emised Pram t . r� r [jlaxina Site,... or... thee' Site, located `at the': _2640,`South ►s)Q She 3+!KY 41# l��rive P opert�, consiating of a 10.8� ,.,aar <P 7i/.. i v „s I ` s J k however, Gross Revenues will not .mean the rent payments to the LESSEE or Sublessea for any Sublease in which the term "lr�ss lied to the gross sales of the above referenced Revenues" is applied _ merchandise. Further provid.ing► that LESSEE shall pay CITY three, l and petroleum products sold on the, cents per gallon of all fue percentage of the gross sales of such items premb.ises, and not.a erv3 ces , All rents and revenues occupancy or LESSEE or Sublessee resulting from any p y received by • 1 use of the Marina Site or any part thereof by professional sasses such as marine surveyors, marine service subl underwriters r 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. Boat. All sales, commissions,, or fees paid for an services rendered or any items of personal ,:property, y including without. limitation boats,:,vessels,. accessories, { supplies, equipment, hardware, sold or leased by LESSEE or Sublesseeare considered Gross Revenues, except :that;.; lease,s2 paid by Dinner Key. Boat Yard Limited'_Partnership to payments. $4� Dinner Key Boatyard Joint Venture: shall .not be considered Gross r, Revenues to .Dinner Key Boatyard Joint Venture, but the Gross s Revs nues of Dinner Key Boat .Yard, , Limited, Partnership shall bxe ' ; M F s considered as Gross Revenue of Dinner Key :;Bo Joint Ventre Fs r for .determination:of Base Rent to the CITY.by.Dinner Key HoatXarc �r Joint Venture. x .. l gross. , recs?z d.. Marina rS r received: by LESSEE or Sublessee resulting :frpm ocoupanDyrr Or k� he g of. t�fl arina. Site. _ .:., ,.: ., 4 Fr.• r �� jdi scel laneous. Receipts from all Orders, 1 F Or. received at the Marina Site by telephone,. mail f Cs � vi i yY 4 fFi tii Y', r" 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 utili2ing 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' f; a; Demised Premises. 1.20 T•r� - Shall mean Dinner Key Boatyard Joint Venture, a Joint Venture between "[] Faison nt@r2rise8 Or a fls p ar nershio to be formed and Dinner Key Boat Yard Limited rganized and existing by Partnership, a limited partnership o`< ryY virtue of the laws of the state of Florida, d/b/a Dinner Key, r$r w: Boatyard, pursuant to the fictitious name laws in Dade County, Florida. As of the date- hereof, the general partner of such 7, limited partnership is Dinner Key Boatyard Management Company, tt which is a corporation for profit organized and existing by virtue of the laws of the state of Florida. This Lease sham bin W 4, ` equally binding on all corporate and natural general partners of Dinner Key Boat Yard Limited partnership in accordance with the SX �} Florida partnership Act and Florida Limited Partnership., Act, ano all other applicable state laws. The liabilities far parV�manc�A of all covenana, terms and conditions herein (includiq withpk. lii ation the psrment Qf base Rent t+o th+aITX). shallbe, oin� L t -- t Default (including the failure to. pay Ease rent as he defined) the CITY may utilize all or part of such Deposit along with accrued interest to satisfy the out the CITY. Should any portion of the security Depos utilitod by the CITY, the LESSEE, upon receipt of writt from the CITY, shallreplenish such Security Depo$i original amount within throe (3) business &ays. -1.24 AC ] The Bank -(here nAfter referred. to t ha bank f 1 identified by the ESSEE 'as providing the loan financing for the Construction'of Improvements or Improvements which may (but has no obligation to) assume the performance of this Lease in the event of Default of the LESSEE; providing, however, that, by written notification by the LESSEE to the City Manager in accordance `with the notice provisions of this Lease -t] the LESSEE may substitute a different lender for ] the Bank and in doing so shall state the name, address and assets of such other state' chartered Florida bank, nationally chartered Federal Bank or, subject to the approval of the City Manager, such' other reputable`funding`sources such as privateF placements, pension ion funds, retirement funds or insurance 1 com anes,''which shall``be the substitute for the permanent and/o'r P N z construction financing to LESSEE in an amount necessary, to construct` the'`Constructon of Improvements or Improvements."[] Unless. the City Manager objects, for, cause to such bank or 5Z substituted lender, which may, be a different. type entity ass w hereinafter provided for in Section 7.1 hereof, all references � terms, provisions and conditions contained in_this Lease ;shall } apply, to such other bank (in lieu of Southeast Banl�, N.Aa x ..,Evidence of construction f inancing. or, a construction fund :3.nr all 1 amount sufficient to pay the total cost of the Construct3on? Improvements shall be submitted to the City ManagerA4 �r,�; s i ? sit oomm,hndaf Building Permit or 30 Ypr]or to c issuance oi h 5 IA� ccnstr uC ion . .. 25 Sub - Shall mean any , gent k�ESS;¢ .. . ri t t.Me. .#t,.f.tlte#el�it �td+4 x+ kGJiC $s6i�1� �s8 of , Any of th�ia� i ��i r �MMMM ♦ s rs`atin�, i t by 361' p f�kYFL + .kelk 1Qk q 'fx� -9.''4 7` TMht�ch ;:, y. •. t , � i C i : n 9 dfl ''+s� ' ? n — i. �3�b1 �aees �t� LESSEE hereby agrees to prolvida.. 30 days of date of execution of this Lease, CITY, within thirty ( � Y' with all documentation governing the terms and conditions Subleases betr6en the LESSEE and Dinner ROY Boat Yard LimitOa. ' the operation of the boat repair yard, the for p Partnership Notwithstanding any restaurant, and the yacht brokerage, "[� conflicting, non -conforming] or undefined terms appearing in any documentation related to this Lease including, without the arties hereto agree that the t limitation, any Sublease"[� P terms and conditions of this Lease shall be controlling and anal supersede the provisions of said documentation. y Wnrk fcan;ta� "wit As used*in AIA Documents, the 1.27 com leted construction required by the Contract for Construction, P including all labor necessary to produce such construction, and all materials and ,equipment incorporated or to be incorporated in such construction. The ,work" as contrasted with capitalized "Work is used in its ordinary -sense. It shall be the sole and exclusive responsibility of„the LESSEE, at its own sole cost and expense, to comply 'with all such laws and obtain all orders, Building Permits and permits- or other governmental approvals which are.required by law to be obtained ' thereunder, except' r this roject and the work performed t, as fo P otherwise provided herein. c�uPRAT TE t�, RTATNTNG TO TIFF SITE AND TERM OF AGREEMENT `2.1 Desc,-��t�on of Marna Site The CITY hereby le4Lses j to the LESSEE for the purposes of this Lease'and for the uses stipulated herein and under the conditions hereinafter set far , r t the property commonly referred to as the Merrill Stevens Site, +� located at 2640 South Bayshore Drive, Miami, Florida, a 10$Y f acres parcel comprised of 6.36 acres of upland, 2 82 ofay_ bottom contiguous to the upland extending into Biscayne $aY .end f y 70 acres of contiguous bay bottom of fared by tk�e , C'Y,{ i s accepted by the LESSEE for the planning_, design, ccnstruct���� f easing operation and management of new marim all .ed purp a in accordance with this ��►s+s and { �F L' M rt� ar.....n: - -- concessions, sales and activities in addition to those being` offered by the LESSEE at that time; charter and sailboat rentaist operations related to a restaurant such as snack bars, sr�ft drinks, and foods; the sale of. tobacco, miscellaneous sundry and. food items and package alcoholic beverages for consumption can or off the Premises to the extent allowed by law; the operatioh ,df`. cafeterias, lunchrooma and the sale of box lunches, in order to replace or exceed the Gross Revenues projected to be generated = 4 from -the marina slips or such other uses for which Building Permits have not been -issued by applicable governmental authorities. To the extent allowed by law, and only :if such Comparable uses have been approved, the CITY shall specify."in writing the alternate. Improvements that will be made by the - LESSEE in lieu of the Construction for Improvements for which Building Permits have not been obtained, in which event the saute Base Rent shall apply to such Comparable Uses and all of the provisions of this Lease shall equally apply. _ [ ] 3111 lax Returns - If Gross Revenues are required "to be reported ;by the LESSEE or Sublessee on -.any governmental `. return and .the .Gross Revenues so reported"are determined by 'e CITY audit to exceed the Gross Revenues as' reported to the` CITY e r pursuant to. the terms of this Lease,= then Gross Revenues : sha1.3, for ur oses.. of this Lease, be deemed to be the amount P P 5! reported and;"so determined by audit. 4 .. Lease Termina on In the event' ..that > within [ ] 3-12 the first 2A, -[],,months after February 1, 1994, [ ] tile- LESSEEr, 't3 after due: diligence; is unsuccessful, in securing the. necessaryt Building Permits for the Construction of Improvements` ;#may � terminate this Lease °upon _sixty (60) " days written:- "notice �. rrw9 RECORDS, AUDITING, ANNUAL FINANCIAL ;REPORT, rah e ;NO PARTNERSHIP QR JOINT YEN tIR RRIMIQNSHIIP; n s " p =true � al�si 4.1 � LESSEE"repare . agrees to CC?tttplete records and': accounts of "all " Grass' ,Revenuesth ° ea a Year v ariai ng or : ecruing by virtue of its , oper4t] ono ` 11 r Aemi Pr+�AIi B ire accordance with, s° g� +a 11 ►. : a � p t . ,r Ia 5 t^ TYv35 �"w " w r'X a - i c 4 t`111#..: y ` accounting p rinc Ales, itemized as to each category of Revenues. Such records and accounts shah include sale slips nutnhered cash register tapes, bank (which will be serially )� statements or duplicate deposit slips, and such other sales. records as an independent certified public accountant fist' need to _ examine in order to certify LESSEE's annual statemett of Oross Revenues. The LESSEE must provide point of sale machines or luck other cash registers or accounting control equip deemed reasonably necessary and consented to by the City Manager for proper control of cash and payments. All records and accounts for`the Lease Year shall be maintained at the Marina Site or, at LESSEE'S option, at LESSEE's main accounting office in'Dade County from a period of thirty-six (36) months after the end of each Lease Year. The CITY and its authorized representatives shall have the right, at reasonable times and under reasonable circumstances, to examine such records and accounts. For the shall also retain copies of all sales same period of time, LESSEE and tax returns covering its operation at the Dinner Key Boatyard, and any other governmental tax or other returns which show LESSEE's saletherein, and shall, upon demand, deliver s copies thereof to the CITY. The LESSEE will photographic : 3 ., i oo erate with the CITY's internal auditors (or such other cPr � auditors designated by CITY) in order to facilitate the CITY's idk conduct of computerized audits. 4.2 8nnua� Finan��al Reports - On or before the 30th } day following the close of each Lease Year, LESSEE shall deliver or cause to be delivered to the City of Miami Finance Department, ;>3 a statement prepared and certified to by an independent, { certified public accountant employed at the LESSEE' s so1e1 cost �t't¢ y. and expense showing Gross Revenues during the preceding Leas,tia: i.' year. Said accountant shall certify that he made 8 complet t _i .. >_AW # > � examination of the books, state sales tax returns, and, fe�ier r„;>sti income tax returns o LESSEE and that such statementse$$d W rind. lee accordance with generally accepted accounting � 4: � -� s r raoties an+, rpces�t the Gross Revenues Qf the i�ESE+ t►g y r, .fit fi-r( �iY�f W j t s x". period therein. With each Lease Year statement, LESSEE shall pay to -the CITY any unpaid balance of the base tent, i a able for the preceding Lease Year and the CITY shall' any, p ■- tints, if anyf in the event tha LESSEE fails to' refund over paym prepare or deliver and required annual financial report or statement to the CYTY's Finance Director within the time got forth above, the CITY, upon fifteen (15) days writtan notice to k; elect to exercise either or both of the following x LESSEE , may,- remediesr a. To treat► as a Default of this Lease, any such X: omission continuing after thirty (30) days notice thus entitling the CITY; 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 LESSEE's own cost and expense. V. r Tn�';aCu+ES LEASE rHi%T LF. CES nse and Permits The LESSEE agrees to bear the { cost and expense of -obtaining and procuring any necessary licenses, permits and Building Permits, including without limitation reasonable attorneys fees incurred in connection Ny. �. therewith. The CITY shall use all reasonable efforts to assist 5 the LESSEE in'securing such � licenses; permits and ; Building 4 _Permits° from''the pertinent governmental agencies. The City des nate a CITY employee as a contact Fpersog =to Manager shallg 4 expedite and assist LESSEE in seekingCITY approval of licenses,° a ermits'and Building Permits. The CITY will use all reasonabler3 Pr" efforts to issue' `"any permits and licenses "to the `LESSEE; �►ittin s o- �r f fifteen (15 )° business `days of the LESSEE' s' supplying' appropri,a e� � adequate andcompleted applications and fees for such pertnts $nd j, the CITY shall `.$sue all Building "Permits" as" expeditious.y~-a V . , pose j V {' � po//�''�sgbFe'f i t { a 5 2hai'� enae tQ ass - The parties �►9a�e�°'th�►tn y eF M • p i Q ,cc QQ tt ^{, 1 p a -..' �v@nt Mhe fa .In 4 sUcce$is �.]#.1. A.ehB�. �. �Fng�? "�.��o r x+ s fa7 'r f7 d c v sign h+a eo which results in a deci.arati9n Q��i;} � d�4k�A0,yj d ��; i f �� { L+sase, the Improvements (excluding. the travelift) and fiktures on the Site and all Construction bocuments and all other plant drawings and specifications for all Improvements on the Site — shall become the property of the CITY and shall be surrehdereti", with ail documents of title and statements LESSEE shall warrant including the and defend its title to the Marina Site, g Improvements and fixtures, to be free of all liens and encumbrances and all rights and claims of the LESSEE and persons`' through or under the LESSEE, or arising out of the' claiming by, g failureofthe LESSEE to perform its covenants hereunder. Subject to the CITY's below described option, the LESSEE'S movablepersonal ersonal property may be removed if it does not° materially damage the Site, provided however, that the LESSEE shall not remove any personal property from the Site if there is an uncured event of Default. The LESSEE shall offer to CITY, at fair market value (inclusive. of a depreciation allowance in`' accord with the depreciation method which the 'LESSEE has used on`' ualified, inde ends the Premises) as determined by two (2) q p , appraisers, all .of the movable personal property to which''it'has t title at the expiration'or termination of this Lease and prior to T the disposition or removal of same. - 7 ,Additionally, the LESSEE shall furnish to the: 'CITY detailed inventory listing all equipment or machinery, with a TS1 s ecific description'as to each Site and. date of purchase,° within` = 44 PVwi 30 days =of the expiretion or termination of this Lease: The LESSEE shall select .and pay for one (1) independent qualified appraiser to .promptly and ;diligently' appraise all=' such equipment° 51 And the CITY shall select and pay' `"for one' (1) independently {1 appraiser to simultaneously appraise all such equipment on su+h�f y� 3 A list. The average of, the two appraisals' within stem ' t zx, • 3"„ cent', shall be considered the fair market ° value purchase yp' Yf offered to ,the.,,CITY for all the equipment and' �nactiiriery O.d//++�� {/� decide n its ° sole dlscrtion, whether to a+cep� Qr 4r 1F'F �- ` s ha � � / suchpurchase option with -in thirty : (�0 ,. dais r + @ pt Qf hoth - ppr$ioals. The C ITiC MA PO U60 Su�h� opt��n8 - 4 {� Y , a` tl (within thirty (30) days of which event the LESSEE shall promp Y such refusal) remote such personal property or equipment and. a'r from the sitei at LESSEE's own cost and expense. machinery LESSEE, as 6.9 vemen �s�s partial consideration and as a condition to this Lease, shall ask for the construction of the Construction of a minimum investment rt amount of Four Million Nine Hundred Improvements in an } Twenty -Nine Thousand Four Hundred Dollars 4 929,400). It is expressly understood by the parties that within sixty (60) days following completi on of any substantial Construction of Improvement on the Site, LESSEE shall furnish the City Manager with an itemized statement of the actual construction cost of any such Con struction of Improvement. The itemized statement shall be sworn to, certified to and signed by the LESSEE or his responsible agent under penalty of perjury. 6.10 L.igII LESSEE agrees that it shall at all times s officials and employees, harmless and LESSEE hold the CITY, it ees against shall indemnify CITY and its officials and employ t for labor' and materials in connection with supplies, 4 claims Improvements, repairs or alterations on the Marina 2 equipment, _i Site, and the cost of defending against such claims, including Ten Dollars ($10.00) is granted ,as g f fees. . � reasonable attorney The CITY ? f,ty. separate and distinct consideration for this indemnity... P is Lease in Default in.,the event shal l be entitled to declare. this the _ bonds. required . _ by Section 6.11 have not. been obtained ors maintained in operative force and effect. _ NO:construction sh�1 6.11 ,� rpm LESSEE until LESSEE has ecured ands be commenced on the Site by i Ir, royal pursuant to the City cf Mamir ' t submitted to the CITY for ap a ,� amended; ,,`' as m„ Y E4 Code. and Section 255.05, Florida Statutes, 3 s pa►mant and performance bonds in the amount of one hund�d; w 11 be ora,e .,.... we percent%125$ of the Work, wleh -Ni"� b -ood on `the total con structi.on cost of . the �on$tructioz cif s # ktai be responsible f or ma Improve LESSEE tet oed and ofe�t th ou9agt the A/� }7 y bo�i31ls /C 4�figc a i r t u. v�j'r Y1 } r j iIS`4k p ^ z 3 a . }. - _•:..�`�,-§r mm..at a ,.. s;. ., . •• - • � .. >a t r . � ..: - ., _" tiT _, .. .rrrh. � _ a'>h�s 8.1 Allowabla.__Uses - LESSEE shall use the Site as a first class full service boat yard, marina, and marine recreational facility offering dockage, mooring, fuel, supplies and other ancillary recreational and business uses for use of and by the general public. The allowable uses, services, and activities shall be limited to the following: a. Wet and dry storage, dockage, and mooring of all boats, excepting the dry storage and/or hauling of boats up to and including 28 feet in length.l (Unless otherwise agreed in writing between Grove Key Marina, Inc. and LESSEE and further, subject to prior written approval of the City Manager). b. Rental or lease of wet slips for boats. C. Sale of nautical and marine gifts, clothing, shoes, accessories, hardware and supplies. d. Sale of bait, tackle, ice, fishing supplies and equipment, such as fly reels, fishing rods, hooks and the like, i sale of canned beverages, such as juices, sodas, milk, beer f wine and liquor (if allowed by law,) and soft drinks. e. Repairs, modifications, construction, design., rigging, outfitting and servicing of boats and vessels. r f.. Rental and charter of boats; lessons and school for marine skills and activities; water taxi facilities or, othex. waterborne transportation. f g. Information center and telephone, mail in message service and post office boxes.15 h. Shower and restroom facilities for the use patrons; vending machines `LTx i. Custodial services by LESSEE, including the {r, furnishing of all maintenance supplies. 1 7k The hau7,:tnq and dry storage of boats up to and -includi r feet in length Is exclusrely reserved.to-GroyQ Keyn, 1nc . pursuant to its Lease agreement as amended with th0 Cl t, ' >'�i { and executed A.pri1 1, 1976. a g t- t�g1¢, # L y� d i tZ 13 4v4.1si _ai l .k .. F _f V^i� Jk Yacht brokerage 'services► including a yacht — brokerage office and showroom. k. Restaurant including raw bar, outdoor and indoor dining area, which may feature live entertainment, if it is in. accordance with such plans and diagrams as approved b CitY Manager and other appropriate -governmental authorities. Y 1. operation and maintenance of recreational bay.walk to the public, who shall have full and free access► in open accordance with the terms of this Lease and applicable laws, subject to rule and regulations allowed by this Lease. m. Coin -operated washers and dryers. n. Personal services such as a -marine artist, marine surveyor, marine photographer, or similar services. o. Consulting or advisory services such as documentation, surveying, marina development consultation, marine insurance, marine financing, and maritime (admiralty) law, consultation, waterfront real estate brokerage, and a- permitting marine -related publications. _ Sales of seafood, groceries, fuels and relate _ P. d .t products. q. United States Postal Facilities_ and/or United f , Postal Service facilities. 't r. New and used boat sales and trades. s . Lockers. t. Permission for any other activities customarilyjor reasonably, associated, affiliated or allied with boatyards and/or i 'ties or servic marinas, or which may be innovative act vi X}.: associated with same, subject to the approval of the City �a Manager. 8.Con � nuous Uses For the Benefit of the Public_ rytf� i profits and Gross Revenues reasonably attainable, and shall carry - a reasonably complete stock of merchandise and maintain reasonably adequate personnel for efficiently accommodating its customers, patrons and quests and additionally shall keep the Marina Site open for business and operate the Marina Site an a high grade, first class facility, in a first class manner. 'In the event LESSEE shall fail to carry out its business c i� substantially in compliance with the provisions of this. Lease, { including, without limitation, its failure to remain open for business continuously as hereinabove provided, then, without { limiting the CITY's-other remedies, the LESSEE after thirty (301' days written notice to LESSEE, and after LESSEE'S failure to operate the Marina Site in accordance with the above within such thirty (30) days, shall pay`to the CITY Five Thousand Dollars ($5,000) per month as liquidated damages, and not as a penalty, along with its Base Rent, or a prorated portion thereof, for each day that the LESSEE fails to operate the Marina Site' in ; • 4 accordance with provisions •of- this Lease. The parties hereto agree that in the event they cannot estimate the losses or _ damages that would result in the event the LESSEE so fails to comply and therefore stipulate as to this sum, without the'CITY waiving its legal remedies with respect to any other rights and recourses the CITY may have. k y g V L 'IAi XII. mATNTENA,NC AND MANAGEMENT 12.1 Ma;ntenance and Management - From February 1,``1990 to' tT, the date of termination of this Lease,` the LESSEE shall oerat$��° x and maintain, or. cause to be operated `and maintained, the Marrs= � � Site,:in.good an d:'safei condition and repair, .. as= other ;first rclas'sl LESSEEshall maintain a'' level acilies in similar;":usage. jxf quality of . character and operation of- ; the iaprov�eme commensurate with the level of quality of "character" and of►rat:c c of other first class marinas and boatyard • repair falitieanp�n Southf'_lorida .� 7 f F A , M1i f t i _ i �u 4 •, rc A fit, rx 1 _ XI11. •._ .• ty Wit Laws The LESSEE shall, at. the �....�.•� LESSEE's sole expense, promptly comply with and cause its — contractors to comply with the requirements of every applicable statute, law, ordinance, or regulation promulgated by federal, ; municipal and other public bodies, departments, bureaus, P ' state, sta authorities or agencies. f - XIV. t�+cgECTtON By .CITY i by CITY - The LESSEE shall permit or sh 14.1all t.rRr►pr+ cart cause to be permitted during the term of this Lease inspection and access to the Marina Site, by the CITY, its authorized agents or representatives in such a manner as to cause the least` the LESSEE's business. possible interference with In the event - inspections reveal that certain activities are not in compliance - with the standards set forth in this Lease, the LESSEE, upon written notification by the CITY, shall correct such deficiencies within 30 days of such notice unless the'LESSEE:is granted an v extension by the City Manager. _ XV.; INSURAHS'Fi t a - ReQuirpments. All required by r fF insurance req 15.1 renerat l: this Lease shall be issued by insurance companies or virtue of A:X or better, per A.M. Best's Ke carriers that are rated #: 7 tin Guide, latest _edition, Ra g and which are duly licensed to -.� the aPP licable kinds of insurance business, and issue transact the appropriate kinds of insurance coverage in the Staae oyf xtt Florida. All policies shall be delivered NN promptly when required s r} proof offedergl workers compensation cover&ga shall ba provided as per the Jones Act and bong shoreman's Act and other applicable laws ^[I. c In the event the LESSEE shall own or operate 'any boats or vesLESSEE must provide throughout sels of its own; the such period ofoperation,, liability insurance ownership or ' the amount of One Million Dollar$ ($1r000,000) coverage in � 15.2 t � P*'o ; d d a New. Prom vllntq Rua � and Pi aced Ynto i the commencement to the completion of the Construction of Improvements and acceptance of the Construction of Improvements) ' applicable law and codes, an in accordance wowner's and ' with all app tractor's protection liability policy shall be issued naming contra s P the CITY and the LESSEE as additional insureds for single limits of One Million Dollars ($1,000,000) for bodily injury and damage. No waiver of the CITY's sovereign immunity, as property rovided above, shall be inte Pnded by such insurance. Additionally', the ll be in force and following insurances sha urin all construction periods until 'completion and effect' d g i acceptance: F a, [J XCU (Explosion, Collapse and -Underground i to be`specifically covered naming the CITY and the coverage) ` LESSEE as `designated insureds-[]; b# i b. All -builders Risk 'Policy in which the CITY shall a ear'; and be named as additional insured as its interest may° pp . a a nst the loss of damage`of the `work ry shall` fully cover �[J 9 the rse of construn, including fire, extended during ccu vandalism and malicious mischief: Under this ,f coverage, insurance, provisions shall be made to continue coverage aftar ht�{ 1- d sto,age„andy� the building and/or buildings, marina, wet°slips, rY 3.? 6 other facilities and improvements to be constructed.' pursuant •,, �t this Lease are completed; `for the 'term of this" Lease": 4 ,r `. Co ,. Pxoof `of automob Je coverage limits' k .}i WE i Thousand pol�.ars ' ($100 1000110 ) , ; singly limit f�`r od3; .y Ai' art ' +dasia a sha) %e - proid; nine hT �►' and for POP y g 4 LFr interest mz t; } k L a; a a including fire a� A comprehensive property coverage and extended coverages► vandalism and malicious mischief, ,hall provided to the CITY based on the replacement cost of the be � p ti or buildings► marina slips, storage and, other building / p facilities and improvements to be constructed pursuant to, this „ i Lease naming the CITY as insured as its interest may appear:r . } ss interruption coverage shall be provided to the CITY in (Business 1 amounts to be determined by the CITY's insurance "[j oordinat= naming the CITY as insured as its interest may appear),. Environment impairment liability insurance shall be carried at _ all times by the LESSEE. The City Manager may waive this requirement upon a showing that such coverage is impracticable to secure. b. Upon the sales of any beer, wine, or any other alcoholic beverages, if allowed by law and by: the ,terms of this Lease, .liquor legal liability or dram shop liability coverage. to _ be provided with a minimum limit of coverage in the amount orf Three- Hundred, Thousand, Dollars _.($300,000.00). The City Manager may waive this requirement upon a showing that such coverage is impracticable.to secure. C. .In the event sailing instruction; classes,; .snorkeling classes, or any other maritime, classes be. .:given, z; teachers legal- liability insurance shall be provided to cover f{ instructors and the minimum limit .of coverage shall be.;,,Three,, � Hundred Thousand Dollars .($300,000,00). d. Marina Operator' s Legal Liability ., an t =#3 k Comprehensive Liability shall be maintained. during ,.the tarn off` this.; agreement . Upon the commencement of,,any xepaiac, . ► H, and, .similar work on vessels and boats ..and/or shopper r�e A, marina operations insurance covering property,;.,.under; r custod and doantrol of the LESSEE or its agentP shah. be My.-, €or, suoh purpose, . with minimum limits o� coverage in th+� ►'�1�' v�x � .on; :�oll,ars ($11000, 000 , Q ) , a d..with 9 + 1 !0, ins+,�re Qr the statutQr l amIto of three to five yeas � } _ insurance to the CITY p the. LESSEE and if torn eary r t l tank as its respective interest may appear in aocordainoe with the terms of this Lease. The LESSEE shall be required to file with the CIfiY y Insurance °' [^^''di nator o,srtifi.ed copies of . renewal policies evidencing their existence together with -proof of j premium payment, , The provisions for insurance , i 15.6of Cotreraae �- i_ be altered subject to prior written approval: x contained herein may ` of the City Manager. ' XV'I . i {- 1 _ If, during the term of this 16.1 Lease, any Improvements on, at or app urtenant to the Marina Site, Y n connection therewith or used i are destroyed or damaged, in i at its whole or in part, , LESSEE shall by fire or other cause , sole cost and expense, regardless of whether any applicable , restorer f _ insurance proceeds are sufficient for that purpose repair, replace, "Restoration" or rebuild, modify or alter �s "Restore") the same, so as to minimize any loss in the reduction 3 f Base _Rent, d in such a manner to enable the continued anusage o M of the Marina Site as contemplatesions of this d by the provi Lease, so th at the fair market value of the Improvements on then _ t ` _ Site after such Restoration is completed.is at least equal to the j f the Improvements on the Site prior ' fair market value o.j or destruction. CITY shall have no obligation to Restore damage for the cost of Restoration. Immediately after such or to . pay rnra� 4 traction, LESSEE shall notify CITY in writing andt� 4 damage or destruction, r r , LESSEE's reasonable estimate of the cost Sof the'�` state the, a { xa necessary Restoration.It. ru4 � 16.2 Damage Less Than 5200.OQ0.00 event there In the is an destruction or damage to the Site or any portion ther0ofr�w y,}#ny i and +the cost of Restorations. a$ estimated, by LEaSE, �►nd concurred in by the City Manager is legs than $2Q{?, QOfJ'.4, tr i�1ftE3e .neu ante will be authorized to pay over the prQ� ec o„.3f � Est a "'ii d 4t an insurance payable on account of such damage or, ��str��t* y it ctly. to th@ $�E.S+� +E upon the re�al.pt of `yam: L : performance or compliance wi agreements or or conditions contained in the Lease a(o her covenants, q ne,t er anv `in;-or�st t on. or read ustment, liquidation, dissolution or similar relief under.. the present to any future federal Bankruptcy Act or any 'other present or future state or federal law relating to insolvency, or shall seek or consent to or acquiesce in the appointment of the i trustee, receiver ar liquidator of LESSEE or of all tf any } substantial part of its personal properties or of its interest iri : to and after due notice and failure to Si cure by LESSEE such v , Events of Default a provided herein, the City Manager may, upon one `(1) further thirty (30) day written notice, terminate and cancel this Lease. �[] a Any of the Aforementioned Events of Default s2e^, f, ed in a . b ove or c abshall operate as -an automatic of the Leas of*�*' *he stiecif;ed oeriod of cue as Da�sPQ. At t time. rt,a Lease shall tar,ninate. and Dosseson, of the Demised Premises. and` tit�p to the shall ta.a civsl action but r wart in j„d, c-, a dete*-mi pat; 18.2aht revert to the CITY, without the nothing �ssrpin will preclude any court of competent iurisd;^tion on of the rights o the parties, to Relet_ - At any time after necessity of any action by for a autoniat3 c teX " na � on, where IRsE voluntarily surrenders [ l Lam..,..... cosseis,16*, CITY may relet .the Marina Site, or any part thereof, in `the' name — of CITY or otherwise,' for such term or terms (which may be f greater or lesser than the periods which would otherwise have constituted the balance of the term of this Lease), and on such conditions (which may include concessions of free rent) as CITY, in its reasonable discretion, may determine, and may collect 5 k{t receive'the`rents thereof. The CITY shall use its reasonabJ effortsto re-:! the Marina Site, in which case' the revenues ,� „_ � oblij ..,.,,,i r�nn ti tute a se t-of f from LESSEE' s continuing v��.. to described must comply with applicable laws, rules and re u1a g tions. and will be subject to the reasonable approval of the City 'Public Works and planning Directors. b. Subject to applicable ordinances and regulations; jr the LESSEE shall have the right to maintain an appropriate, authorized sign on CITY property at or near the 2640 South 5 Bayshore Drive entrance, which may say "Dinner Key Boatyard" and include the company logo, the CITY's municipal logo, and may include the names of major tenants. XXXII. MISCELLANEOUS 32.1 Conflict of Interest• Miscellaneous _ The LESSEE., warrants that it is aware of the conflict of interest laws of the City of Miami, Dade County, Florida, and the Florida Statutes, 4 and will fully comply in all respect with the terms of such laws. Any such conflict of interest known to LESSEE shall be promptly, disclosed in writing to the CITY, LESSEE shall not otherwise' exercise bad faith. or otherwise subvert LESSEE's obligations . �.Y under this Lease. ' 32.2 Captions - The captions of this Lease and the index, preceding this Lease are for convenience and reference only, and. in no way define, limit, describe or affect the scope or intent ,S of this Lease. 32 3 f Words - Words of any gender in this Lease, x shall be held to include any other gender and words in the singular shall be held to include the plural. r . 32.4 No Broker _ nd warrants that —� LESSEE represents a frx r Yx: LESSEE did not deal with any real estate broker, agent Qr .Eiaderm r� in connection with this Lease so as to give prise �to any l�.ab��l�itAMA � f a3 yf, on the .part of CITY, and LESSEE shall hold and save CITY.'harm from any and r�i f allaleine or demands by real estate broers age is * kx q� f � or finders with whom LESSEE deals or has dealt contra 5 �� �N. x ` to axegoing wartanti► and representation. One dollar OQR. ) given as distinct, separate, and independent considerat the gtontin o this insmni t►, r ,s tFz wa " t Z '' l ,. xi�K„`,y-k i7 y far .3s 'i r provision " of this Lease. 32.5 If any (other than those relating to Payment of Lase Ront and other sums or charges to CITY# are declared invalid or unenforceable by a of Competent jurisdiction# the remainder of this Lease# or courtp = the application of such provision to persons or circumstances I • other than those as to which it is invalid or unenforceable# and each provision of this L+aase shall not be affected thereby#- shall be valid and be enforceable to the fullest extent permitted r by law. 32.6 The covenants, agreements, terms, provisions and conditions contained in this Lease shall apply to and be binding -upon the CITY and the and inure to the benefit of LESSEE and their respective successors and assigns, except as. ex ressl otherwise herein provided, and shall be deemed P y - covenants running with the respective interests of the parties hereto. 32.7 �• ;na covenants - Each provision of this Lease ce in any respect by or on behalf of which may require performan: A: either LESSEE, CITY or third parties after the expiration or termination of the Lease shall survive such expiration or earlier r 1 termination. f> 32.8 -e orandum of Lease - The parties hereto agree to ;ru tt prepare a short memorandum of this Lease suitable for filing so h{ i as to put third parties on notice as to the •existence of this 4= Lease. All recording fees, taxes and other expenses relating to ..;. the granting of this Lease and to the recording of such , memorandum of Lease shall be borne exclusively by LESSEE • r In the event anychar e, in . } q tere8t or# 3 2.9 I�]••Q_II survyj .. payment is deemed usurious by a court of 'competent jurisdiction F r* the 114 R. maximum rate allowed by Ch. 687, Florida Statutes, ta amended shall apply. onsent Where this Lease requires that consente given by either party, said consent shall not be uneaaQnaby ra°` qwr withheld or delayed. f s n w= ate" eminent domain. Whether for a total, partial or temporary tak ng j or under threat of condemnation. if the taking .is by A 'i1' m%4- 4 tv_, Elorida Statutes governing eminent domain rti.,es,%we►o }� �V V Gam. n will apply.XXXIVO s yM iy�' EEDEIM The LESSES, for itself an i 34. tr�aSye� of i�edernation m for all persons by, claiming through or under it, hereby':; y � and all expressly waives (to the extent permitted b law and t� rights which are or may be conferred upon the LASSES by any - present or future law to redeem the Marina Site, after reentry thereupon, or upon any part thereof, by the.CITY and/or Southeast Bank, or after any warrant to dispossess, writ of restitution,' judgment in ejectment or forcible detainer. The foregoing shall j _ not be deemed to constitute a waiver by LESSEE oranydefense or nights to appeal. Xi APPROVED -AS TO INSURANCE APPROVED AS TO LE13AL FORM AND Ct�MCMSS t RS UIREMENTS t J6rt�e L. Fernandez SeiqundO Peru City Attornelr v- Insurance C ro+ord i nator STATE of FLORIDA SS: COUNTY OF DADE ) - zr BEFORE ME personally appeared �[) BRAD BURGESS. -. FAISON 'NTERpRlSES and Dr. Marvin Dunn, , President of Dinner Key Boatyardtj a Florida corporation who is the sole Management Company, (corporate) general partner for the Dinner Rey Boat Yard .Limited x` Partnership, such corporations being known collectively as Dinner s Key Boatyard Joint Venture, a Joint Venture under Florida and acknowledges the foregoing for the purposes herein described. this dad' of , 1991. NOTARY PUBLIC State of `Florida at Large, My Commission Expires: ;� 5 " r � r STATE OF FLORIDA SS : _ COUNTY OF DADE ) t., S BEFORE ME personally. appeared Cesar H. Odio, City Manager° , , { ,s the,foregoing4. I the City. of Miami, Florida, and acknowledges daY o'r�. for the purposes herein described this _____, x W 1991. r � h * , NOTARY; State .of ( kV t -(;Odtlit� .tf$ 0, Eii ices t y. P {