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Home My WebLink AboutR-89-0960J-89-986 10/12/89 RESOLUTION NO. 89-960 A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE NEGOTIATED LEASE AGREEMENT, IN SUBSTANTIALLY THE FORM ATTACHED, BETWEEN THE CITY OF MIAMI AND DINNER KEY BOATYARD, J.V., FOR THE PLANNING AND DESIGN, CONSTRUCTION, LEASING, AND MANAGEMENT OF A FULL SERVICE BOAT YARD, MARINA, AND ANCILLARY MARINE -RELATED RETAIL USES ON APPROXIMATELY 10.88 ACRES OF CITY - OWNED WATERFRONT PROPERTY LOCATED AT 2640 SOUTH BAYSHORE DRIVE, MIAMI, FLORIDA. WHEREAS, on October 6, 1986, by Resolution No. 88-954. the City Commission determined that the development of approximately 10.88 acres of City -owned, waterfront property including the uplands and bay bottom contiguous to the uplands located at 2640 South Bayshore Drive, Miami, Florida, would best be accomplished by the Unified Development Project process for a full -service boat yard facility, marina, and ancillary marine -related retail uses; and WHEREAS, on October 27, 1988, by Resolution No. 88-992, the City Commission authorized the issuance of a Request for Unified Development Proposals for a full -service boat yard, marina, and marine -related retail uses at 2640 South Bayshore Drive, selected a certified public accounting firm and appointed members of a Review Committee to evaluate the proposals as their duties are prescribed by local law; and WHEREAS, the Request for Unified Development Proposals for 2640 South Bayshore Drive was issued November 14, 1988; and WHEREAS, five proposals were received by the City in response to the Request for Unified Development Proposals on February 17, 1989, the published date for receipt of proposals; and WHEREAS, in accordance with the City's Unified Development Project process outlined in Charter Section 29-A(c) and Code Section 18-52.9, the City Manager on June 22, 1989, transmitted CITY COMMISSION MEETING OF OCT �26� 1989 RESOLUTION No. • A►, to the City Commission his recommendations including the written reports, from the aforementioned certified public accounting firm and Review Committee, including minority opinions; and WHEREAS, Resolution No. 89-576)adopted June 22, 1989, by the City of Miami Commission, selected Dinner Key Boatyard, J.17. as the successful proposer for the Unified Development of the 2640 South Bayshore Drive property, and further authorized the City Manager to negotiate an agreement; and WHEREAS, the lease agreement attached herein as part of this Resolution, was negotiated in good faith by the City of Miami administration and representatives of Dinner Key Boatyard, J.V.; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to execute a lease agreement, in substantially the form attached, between the City of Miami and Dinner Key Boatyard, J.V., for the planning and design, construction, leasing, and management of a full service boat yard, marina, and ancillary marine -related retail uses on approximately 10..88,acres of City -owned waterfront property located at 2640 South Bayshore Drive, Miami, Florida. Section 2. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 26th day of October , 1989. ATTES . MAT Y HIRAI CITY CLERK PREPARED AND APPROVED BY: RAFAEL 46. DIM ASSISTANT CITY ATTO Y -"'::: XAVIER L. SUA Z, M YOR APPROVED AS TO FORM AND CORRECTNESS: JQRGE'L. RNANDEZ C TY ATTO EY i►i LEASE AGREEMENT Between THE CITY OF MIAMI and DINNER KEY BOATYARD JOINT VENTURE 11 TABLE OF CONTENTS PAGE SECTION I DEFINITIONS 1.1 Architect... ............................. 2 -1.2 Building Permit ............................ 2 1.3 Certificate of Insurance ................... 2 1.4 Certificate of Occupancy ................... 2 1.5 Changes in the Work ........................ 2 1.6 Change Order ............................... 2 1.7 City Commission ............................ 3 1.8 City Manager ............................... 3 1.9 Construction Cost .......................... 3 1.10 Construction Documents ..................... 4 1.11 Consultants ................................ 4 1.12 Contractors... ....... ................... 4 1.13 Contracts for Construction ................. 4 1.14 Default ................. .................. 5 1.15 Demised Premises or Premises ............... 5 1.16 Design Development Documents ........ :...... 5 1.17 Force Majeuere ............................. 5 1.18 Gross Revenues.......... 6.................. 5 1.19 Improvements ............................... 8 1.20 Lessee ..................................... 8 1.21 Net Brokerage .... .......................... 9 1.22 Schematic Design Documents ................. 9 1.23 Security Deposit ........................... 9 1.24 Southeast Bank, N.A........................ 10 1.25 Sublease ................................... 11 1.26 Sublessees..... ....................... 11 1.27 Work (capital "Work") ...................... 11 SECTION II GENERAL TERMS PERTAINING TO THE SITE AND TERM OF AGREEMENT 2.1 Description of Marina Site ................. 12 2.2 Term of this Lease. ..................... 12 2.3 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 3.5 Percentage of Gross Revenues Payable in Excess of Minimum Rental ................... 14 3.6 Overpayment and Underpayments .............. 15 3.7 No Effect on Base Rent ..................... 15 3.8 Base Rent Deferrals ........................ 16 3.9 Comparable Uses to Increase Revenues....... 16 3.10 Tax Returns... .6.......................... 17 3.11 Lease Termination .......................... 17 SECTION IV RECORDS, AUDITING, ANNUAL FINANCIAL REPORT, NO PARTNERSHIP OR JOINT VENTURE RELATIONSHIP 4.1 Records ...... ....... ..................... 18 4.2 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 .............6............. 20 6.2 Plan Approvals...... ...............6..... 23 6.3 Quality of Construction .................... 23 6.4 Changes in Plans and Specifications........ 23 6.5 Procedures for Approval or Disapproval..... 24 - i - y 6.6 Right of Inspection ........................ 24 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 SECTION VII SUBORDINATION OF BASE RENT PAYMENTS TO BANK NOT ENCUMBRANCE OF ASSIGNMENT OF LEASEHOLD 7.1 No Subordination .......................... 27 7.2 Cross -Default Clause .......... ............ 27 7.3 Assumption by Southeast 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 ...................... 43 16.5 Lessee to Furnish Assurances ............... 43 16.6 No Termination Of Lease .................... 43 89-96 0 s 16.7 No Obligation To Restore Under Certain Circumstances .... ....... .................. 43 16.8 Excess InsuranceProceeds .................. 44 SECTION XVII CITY MAY CURE DEFAULTS 17.1 City May Cure Defaults ..................... 44 SECTION XVIII TERMINATION OF AGREEMENT 18.1 Events of Default .......................... 44 18.2 Right to Relet.......................... ... 46 18.3 Lessee's Continuing Obligations............ 46 a 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 Encum bered...................................... 47 SECTION XX NOTICES 20.1 Notices .................................... 48 SECTION XXI INDEMNIFICATION - 21.1 Indemnification ............................ 49 SECTION XXII LIENS 22.1 Liens ...................................... 50 SECTION XXVII 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 DOCKAGE 29.1 Dockage Agreements.. ..................... 53 29.2 Dockage and Storage Rates .................. 54 29.3 Public Notices ............................. 54 SECTION XXX HOLDING OVER 30.1 Holding Over ............................... 54 SECTION XXXI SIGNAGE 31.1 Signage.................................... 55 SECTION XXXII MISCELLANEOUS 32.1 Conflict of Interest; Miscellaneous........ 55 32.2 Captions.. .. ............................ 55 32.3 Gender of Words ............................ 55 32.4 No Broker .................................. 55 - 32.5 Severability ............................... 56 32.6 Successors ................................. 56 32.7 Surviving Covenants ........................ 56 32.8 Memorandum of Lease ........................ 56 32.9 No Usury ................................... 56 32.10 Consent .................................... 57 4 F i 1 1 1 i 89-960 32.11 Access and Location of Particular Improvements ............................... 57 32.12 Public Access Preserved .................... 57 32.13 Applicable Laws ............................ 58 32.14 Venue ...................................... 58 32.15 Reimbursement ............ ................. 58 32.16 Minority Procurement Compliance............ 58 32.17 Award of Agreement ......................... 58 32.18 Employees .................................. 58 SECTION XXXIII EMINENT DOMAIN 33.1 Permanent Taking ........................... 59 33.2 Temporary Taking ........................... 60 33.3 City Taking ................................ 61 SECTION XXXIV WAIVER OF REDEMPTION 34.1 Waiver of Redemption ....................... 61 SECTION XXXV EXHIBIT 35.1 Exhibit .................................... 61 SECTION XXXVI ENTIRE LEASE 36.1 Entire Lease; Amendments ................... 61 EXHIBITS Exhibit A Composite of the three (3) Subleases to Dinner Key Boat Yard Limited Partnership and one Sublease to Cal -Florida Marine Industries, Inc. Exhibit B Construction of Improvements and Completion Schedule Exhibit C Legal Description of Demised Premises Exhibit D Survey Exhibit E Operating Plan Exhibit F Request for Proposals - iv - } 89--960 ,a- t= • El LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease") made and entered into this day of , 1989, by and between the City of Miami, a Florida municipal corporation having its principal offices at 3500 Pan American Drive, Miami, Florida 33133 (herein- after referred to as "CITY") and Dinner Key Boatyard Joint 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 S S 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 owned 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 WHEREAS, pursuant to said request for a proposal for a unified development project, LESSEE submitted to the CITY its unified development proposal dated February 17, 1989 (the "Proposal"), which was determined by the City Commission to be the most advantageous proposal received by it; and WHEREAS, due to its voluminous nature, the Proposal is on file at the City Clerk's Office at 3500 Pan American Drive, Miami, Florida and is incorporated herein by reference as if it were attached hereto; and WHEREAS, the City of Miami Commission, pursuant to Resolution No. 89-576 adopted June 22, 1989, selected Dinner Key Boatyard Joint Venture, as the successful proposer for the unified development of the 2640 South Bayshore Drive Property; 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 Architect - shall mean the firm of Bermello, Kurki and Vera, which is a firm of professional architects licensed 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 of Insurance - A document issued by an authorized representative of an insurance company stating the types, amounts and effective dates of insurance in force for a designated insured. 1.4 Certificate of Occupancy - Document issued by an appropriate governmental authority certifying that all or a designated portion of a building complies with the provisions of applicable statutes and regulations, and permitting occupancy for its designated use. 1.5 Changes in the Work - Changes in the Work shall be changes ordered by the LESSEE in the construction of the Con- struction of Improvements (as that term is hereinafter defined), within the general scope of the Contracts for Construction (as that term is hereinafter defined), consisting of additions, dele- tions, and other revisions and the Contract for Construction sum and the Contracts for Construction time being adjusted accordingly. All such Changes in the Work shall be authorized by Change Order (as that term is hereinafter defined). 1.6 Change Order - Change Order shall be a written order to the Contractor (as that term is hereinafter defined) signed by the LESSEE and approved by the City Manager when the Change Order - 2 - i% • • ■ ti 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 Architect - shall mean the firm of Bermello, Kurki and Vera, which is a firm of professional architects licensed 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 of Insurance - A document issued by an authorized representative of an insurance company stating the types, amounts and effective dates of insurance in force for a designated insured. 1.4 Certificate of Occupancy - Document issued by an appropriate governmental authority certifying that all or a designated portion of a building complies with the provisions of applicable statutes and regulations, and permitting occupancy for its designated use. 1.5 Changes in the Work - Changes in the Work shall be changes ordered by the LESSEE in the construction of the Con- struction of Improvements (as that term is hereinafter defined), within the general scope of the Contracts for Construction (as that term is hereinafter defined), consisting of additions, dele- tions, and other revisions and the Contract for Construction sum and the Contracts for Construction time being adjusted accordingly. All such Changes in the Work shall be authorized by Change Order (as that term is hereinafter defined). 1.6 Change Order - Change Order shall be a written order to the Contractor (as that term is hereinafter defined) signed by the LESSEE and approved by the City Manager when the Change Order - 2 - s exceeds the sum of Ten Thousand Dollars ($10,000) or involves an adjustment in time for more than 30 days, issued after the execu- tion 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 Adminis- trative Officer of the CITY. The City Manager shall include any duly authorized designee of the City Manager, and the City Manager shall serve as the CITY's representative to whom adminis- trative 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 sub- contract, 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; except that Subleases to Dinner Key Boat Yard 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. The City Manager, in his discretion, may obtain the approval of the City Commission prior to undertaking said rights and obligations. 1.9 Construction Cost - Shall mean the total cost, at fair market value, of all Construction of Improvements ("Construction of Improvements") p ) as set forth in Exhibit "B" attached hereto and made a part hereof, which LESSEE is required to make pursuant to this Lease in accordance with the Design Development Documents (as that term is hereinafter defined) and the Construction Docu- - 3 - ments (as that term is hereinafter defined). The Construction Costs shall include permitting costs (including attorneys fees for environmental permitting not to exceed 5% (five percent) of the total Construction Costs); site inspection 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 exper- tise 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, tele- phone, 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 docu- ments for this project. All Contractors shall possess valid Dade County Certificates of Competency and shall be those persons indicated in the LESSEE's Proposal except as otherwise provided in Section 11.1 of this Lease. 1.13 Contracts for Construction - Shall mean contracts with Contractors. - 4 - o • • 0 a 1.14 Default - Shall be an event of Default as defined in this Lease. 1.15 Demised Premises or Premises - Shall mean the Marina Site, or the Site, located at the 2640 South Bayshore Drive Property, consisting of a 10.86 acre parcel comprised of 6.36 acres of upland, 2.82 acres of bay bottom contiguous to the up- land 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 Development 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 other- wise 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 - 5 - 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 within the LESSEE's offices). Provided, 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 serv- ice 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/affili- ate/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, sup- plies, 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 Storage. All gross receipts received by LESSEE or Sublessee resultinq from occupancy or use of the Marina Site. e. Miscellaneous. Receipts from all orders secured or received at the Marina Site by telephone, mail, facsimile machine, boat to boat order canvassing operating at the Marina Site or which the LESSEE, in the customary course of its opera- tions, 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 § 328.17, Florida Statutes, or similar remedies provided by law, costs of collection efforts, including reasonable attorneys fees. 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 stand- ard 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 com- mercial 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 LESSEE - Shall mean Dinner Key Boatyard Joint Venture, a Joint Venture between Cal -Florida Marine Industries, Inc. 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 pro- fit 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 i 7 w 1$9_9f0 0 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 and several obligations of each and every joint venturer, general or limited partner or successor entity or person which comprise the LESSEE or Sublessee, but as to limited partners, such liability shall be limited as provided in Florida Statutes. 1.21 Net Brokerage - Shall mean the amount paid to the yacht broker above the amount remitted to the owner/seller less commission fees paid to anyone other than the yacht broker, boat storage or dockage costs, boat maintenance costs, transactional costs such as legal fees and documentation, taxes paid, direct or — proportional advertising costs, direct or allocated costs such — as, office, rent, staff or office equipment. 1.22 Schematic Design Documents - Shall mean drawings and other documents illustrating the scale and relationship of the components of the Improvements. Final Schematic Design Documents for the Construction of Improvements shall require the written approval of the City Manager. Such Schematic Design Documents shall be deemed approved unless the City Manager advises other- wise within ten (10) working days of submittal to the City Manager, unless the City Manager is prevented from doing so as a result of an event described in Section XXIX of this Lease. 1.23 Security Deposit - Shall mean the One Hundred Thou- sand Dollars ($100,000) to be deposited by the LESSEE with the CITY's Finance Director upon the execution of this Lease. The Security Deposit shall be in cash, certified (cashiers') check drawn on a Florida bank, an irrevocable unconditional letter of credit in a form acceptable to the City Manager or a certificate of deposit properly assigned to the CITY and shall serve as security for the proper completion of the Construction of - 9 - 89-960 Improvements by the LESSEE. Interest on the Security Deposit shall inure solely to the benefit of the LESSEE. At such time as the CITY certifies that the Construction of Improvements have been completed in accordance with the terms of this Lease, the Security Deposit and all accrued interest shall be returned to the LESSEE. During the time that the Security Deposit is held by the CITY, in the event of a LESSEE Default (including the failure to pay Base Rent as hereinafter defined) the CITY may utilize all or part of such Security Deposit along with accrued interest to satisfy the sums due to the CITY. Should any portion of the Security Deposit be so utilized by the CITY, the LESSEE, upon receipt of written notice from the CITY, shall replenish such Security Deposit to its original amount within three (3) business days. 1.24 Southeast Bank, N.A (hereinafter referred to as - "Southeast") - Shall mean the bank presently identified by the LESSEE 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 prior to or within three months after the CITY's execution of this Lease, the LESSEE may substitute a different lender for Southeast 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 private placements, pension funds, retirement funds or insurance companies, which shall be the substitute for the permanent and/or construction financing to LESSEE in an amount necessary to construct the Construction of Improvements or - 10 - -w 5 89-960 Improvements.* Unless the City Manager objects for cause to such bank or substituted lender, which may be a different type entity as 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 Bank, N.A.). Evidence of construction financing or a construction fund in an amount sufficient to pay the total cost of the Construction of Improvements shall be submitted to the City Manager prior to issuance of a Building Permit or 30 days prior to commencing construction. 1.25 Sublease - Shall mean any grant by LESSEE or Sub- lessees of any of their right, title or interest under this Lease. 1.26 Sublessees - Shall mean Dinner Key Boat Yard, Limited Partnership and Cal -Florida Marine Industries, Inc. LESSEE hereby agrees to provide CITY, within thirty (30) days of date of execution of this Lease, with all documentation governing the terms and conditions of the Subleases between the LESSEE and Dinner Key Boat Yard Limited Partnership for the operation of the boat repair yard, the restaurant, and the yacht brokerage, and Cal -Florida Marine Industries, Inc. In the event of any conflict between the terms and conditions of this Lease and said documentation, the terms of this Lease shall govern. 1.27 Work (capital "W") - As used in AIA Documents, the completed construction required by the Contract for Construction, 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 * For the purpose of this Lease, the name of the substituted lender will replace the name Southeast Bank, N.A. whenever it appears herein. laws and obtain all orders, Building Permits and permits or other governmental approvals which are required by law to be obtained for this project and the work performed thereunder, except as otherwise provided herein. II. GENERAL TERMS PERTAINING TO THE SITE AND TERM OF AGREEMENT 2.1 Description of Marina Site - The CITY hereby leases to the LESSEE for the purposes of this Lease and for the uses stipulated herein and under the conditions hereinafter set forth the property commonly referred to as the Merrill Stevens Site, - located at 2640 South Bayshore Drive, Miami, Florida, a 10.88 acres parcel comprised of 6.36 acres of upland, 2.82 of bay - bottom contiguous to the upland extending into Biscayne Bay and = 1.70 acres of contiguous bay bottom offered by the CITY and accepted by the LESSEE for the planning, design, construction, leasing, operation and management of new marina facilities and allied purposes in accordance with this Lease and for the expan- sion of existing marina facilities. Said Demised Premises shall - constitute the municipally owned facilities as delineated on Exhibit "C" attached hereto and made a part hereof. The parties agree that while the CITY is fee simple owner of the Site, it makes no representat.ions or warranties as to its title to the Site and further that CITY's title is subject to any easements, licenses, rights -of -way and other similar restrictions of record existing in the public records of Dade County. The Marina Site is leased as is and no representations or warranties whatsoever are made as to the condition of the Marina Site nor any materials _. or other components thereof. Nothing contained herein shall be construed to release any third parties from liability for such conditions. 2.2 Term of this Lease - The term of this Lease shall commence on February 1, 1990, and shall end on midnight (12:00 A.M.), January 31, 2020. At CITY's sole option, CITY may negotiate with LESSEE an extension of this Lease with terms and conditions favorable to CITY, and in no event shall such terms and conditions be less than those set forth in Exhibit "F". - 12 - 2.3 The LESSEE's Date of Possession - The effective date of possession of the Premises by LESSEE shall be as of February 1, 1990, but physical possession of the Premises will remain in the Merrill Stevens Drydock Company until March 31, 1990. It is understood that LESSEE shall have the right to enter upon the Premises for the commencement of the Construction of Improvements. LESSEE shall hold harmless and defend the CITY for any acts or omissions by any officers, agents or employees regarding the right of entry and/or activities on the Premises. III. CONSIDERATIONS 3.1 Base Rent - The LESSEE shall pay to the CITY as base rent ("Base Rent") the greater of the minimum annual guaranteed rent ("Minimum Annual Guaranteed Rent") of Four Hundred and Five Thousand Dollars ($405,000) per annum or: a. Seven and one half percent (7.5%) of Gross Revenue for Gross Revenues up to Six Million Dollars ($6,000,000). b. Eight and one half per cent (8.5%) of Gross Revenue for Gross Revenues in excess of Six Million Dollars ($6,000,000) and up to Seven Million Dollars ($7,000,000). C. Nine and one half percent (9.5%) of Gross Revenue for Gross Revenues in excess of Seven Million Dollars ($7,000,000) and up to Eight Million Dollars ($8,000,000). d. Ten and one half percent (10.5%) of Gross Revenue for Gross Revenues in excess of Eight Million Dollars ($8,000,000). (a., b., c., and d., above shall mean the "Percentage Rent"). The Minimum Annual Guaranteed Rent shall be payable as fol- lows: One -twelfth (1/12) of the Minimum Annual Guaranteed Rent shall be paid each month commencing with the first day of the first month of possession of the Premises and on the first day of each and every subsequent month that this Lease is in operative - 13 - • i force and effect. Such payments shall be payable in advance on the first day of each and every month during the term hereof to the City of Miami, c/o City of Miami Finance Department, at 3500 Pan American Drive, Miami, Florida 33133, or such other address as the CITY may from time to time designate, by cash, cashier's check or certified check drawn on a Florida bank. 3.2 Sales, Use and Ad Valorem Taxes - It is understood and agreed that the State of Florida sales and use taxes, which may be applicable on rental payments, shall be excluded from and shall be in addition to the Base Rent. Furthermore, LESSEE shall pay any Ad Valorem taxes which may be assessed against the Marina Site. 3.3 Interest on Late Base Rent Payments - Any Base Rent payment which is not paid on or before the respective dates under this Lease shall be subject to interest at the rate of twelve percent (12%) per annum (or such other rate as specified as the general interest rate on obligations in Florida by Chapter 687, Florida Statutes) from the date such Base Rent payment is due until such time as the Base Rent payment is actually received by the CITY. 3.4 Base Rent Commencement Date - Base Rent payments shall commence on February 1, 1990 and shall be due for the respective monthly and quarterly periods provided for in this Lease from such date until the expiration of the term of this Lease. The Lease Year (hereinafter "Lease Year") shall be from February 1 to January 31 for the term of this Lease. 3.5 Percentage of Gross Revenues Payable in Excess of Minimum Rental - The percentage of Gross Revenues shall be pay- able to the CITY in the same manner and to the same address as specified above for the Minimum Annual Guaranteed Rent, on a quarterly basis, during the entire term of this Lease, commencing with the first quarter of the year (quarterly periods of the year commencing January 1st, April 1st, July 1st and October 1st) following February 1, 1990 as set forth in subsection 3.4 of this Lease. The LESSEE shall have one calendar month in which to calculate and pay the quarterly payment of Percentage Rent due - 14 - the CITY and said payments shall be accompanied by a detailed statement of Gross Revenue for such quarter. The previously paid Minimum Annual Guaranteed Rent for the applicable quarter shall be a credit against the quarterly Percentage Rent. For example, if the Percentage Rent is due on February 1 for the preceding quarter it would cover the months of October, November and Decem- ber. The detailed report of Gross Revenues to be submitted along with payment of Percentage Rent on February 1 shall be in a form acceptable to the City Manager and shall be executed by a duly authorized officer, partner of the LESSEE or its responsible agent, who shall be either a Florida licensed C.P.A. or an attorney at law, and shall include the following data or informa- tion: a. The total Gross Revenues for said quarter of the Lease Year itemized as to all of the categories of uses specified herein. b. The resulting Percentage Rent for each of those - categories computed for that quarter. C. The total Minimum Annual Guaranteed Rent pre- viously paid by the LESSEE for the applicable months of the Lease Year in which that quarter falls. 3.6 Overpayment and Underpayments - In the event that the LESSEE can demonstrate, by standard and acceptable accounting practices, that it has made an overpayment in the Percentage Rent in remitting the sum due in accordance with the subsection 3.1 of this Lease, such overpayment shall be refunded promptly to the LESSEE exclusive of interest thereon, but if the LESSEE has made an underpayment in the Percentage Rent then said underpayment shall be paid to the CITY with interest thereon at the rate of twelve percent (12%) per annum hereof from the date that it was originally due until it is paid (or such other interest rate as is set forth in Chapter 687, Florida Statutes, as amended). 3.7 No Effect on Base Rent - The Base Rent specified in this Lease shall not be affected solely by virtue of the LESSEE's - 15 - inability to utilize the Demised Premises for all or substan- tially all of the proposed uses that this Lease contemplates, nor will it be affected by any inability or failure of the LESSEE to perform any of its obligations hereunder. 3.8 Base Rent Deferrals - In the event that the Building Permits for new marina slips, additional marina docks, extension to existing slips, and other revenue producing components of the Marina Site have not been issued within one year after proper application for such Building Permits has been made by the LESSEE, then the LESSEE may request from the City Manager a Base Rent deferral of an amount not exceeding twenty percent (20%) on a monthly basis of the Base Rent. The amount of Base Rent to be so deferred, shall be determined by a separate letter agreement between the City Manager and the LESSEE, which letter agreement shall state the exact amount of the deferred Base Rent, the interest rate to be applied, and the terms of repayment. The letter agreement shall also state the commencement and termina- tion dates of such deferral of Base Rent. The deferred Base Rent payments shall be subject to the same auditing and bookkeeping requirements and all other terms and conditions of this Lease. No deferral of Base Rent granted under this section shall be granted for periods which cumulatively exceed eighteen (18) months, which shall be measured from the date of the CITY's approval of the request for such deferral. No deferral of Base Rent provided for hereunder shall be construed in any manner to be a deduction, abatement or set cff for any reason or cause whatsoever from the Base Rent. 3.9 Comparable Uses to Increase Revenues - In the event that the cumulative maximum eighteen (18) month Base Rent deferral period provided for in the preceding section of this Lease has expired, and despite the exercise of due diligence the LESSEE has not been able to secure Building Permits for the intended Construction of Improvements, then the CITY shall use all reasonable efforts to devise comparable or similar allowable a IN • alternate and replacement uses (hereinafter "Comparable Uses") of the Premises which are in accordance with applicable Federal, State and local laws, ordinances, and regulations. The Compar- able Uses to be considered under such circumstances shall include but not be limited to other maritime recreational concessions, sales and activities in addition to those being offered by the LESSEE at that time; charter and sailboat rentals; operations related to a restaurant such as snack bars, soft drinks, and foods; the sale of tobacco, miscellaneous sundry and food items and package alcoholic beverages for consumption on or off the Premises to the extent allowed by law; the operation of cafeterias, lunchrooms and the sale of box lunches, in order to replace or exceed the Gross Revenues projected to be generated from the marina slips or such other uses for which Building Per- mits have not been issued by applicable governmental authori- ties. 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 same Base Rent shall apply to such Comparable Uses and all of the provisions of this Lease shall equally apply. 3.10 Tax Returns - If Gross Revenues are required to be reported by the LESSEE or Sublessee on any governmental tax return and the Gross Revenues so reported are determined by a CITY audit to exceed the Gross Revenues as reported to the CITY pursuant to the terms of this Lease, then Gross Revenues shall, for purposes of this Lease, be deemed to be the amount so reported and so determined by audit. 3.11 Lease Termination - In the event that, within the first 18 months after February 1, 1990, the LESSEE, after due diligence, is unsuccessful in securing the necessary Building Permits for the Construction of Improvements, LESSEE may termi- nate this Lease upon sixty (60) days written notice to CITY. - 17 - 11 IV. RECORDS, AUDITING, ANNUAL FINANCIAL REPORT, NO PARTNERSHIP OR JOINT VENTURE RELATIONSHIP 4.1 Records - LESSEE agrees to prepare true and complete records and accounts of all Gross Revenues for each Lease Year arising or accruing by virtue of its operations on the Demised Premises, in accordance with generally acceptable accounting principles, itemized as to each category of Gross Revenues. Such records and accounts shall include sale slips (which will be serially numbered), cash register tapes, bank statements or duplicate deposit slips, and such other sales records as an inde- pendent certified public accountant may need to examine in order to certify LESSEE's annual statement of Gross Revenues. The LESSEE must provide point of sale machines or such other cash registers or accounting control equipment deemed reasonably necessary and consented to by the City Manager for proper control of cash and payments. 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 for 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 same period of time, LESSEE shall also retain copies of all sales and tax returns covering its operation at the Dinner Key Boatyard, and any other governmental tax or other returns which show LESSEE's sales therein, and shall, upon demand, deliver photographic copies thereof to the CITY. The LESSEE will cooperate with the CITY's internal auditors (or such other auditors designated by CITY) in order to facilitate the CITY's conduct of computerized audits. 4.2 Annual Financial 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, a statement prepared and certified to by an independent, certified public accountant employed at the LESSEE's sole cost and expense - 18 - s � - showing Gross Revenues during the preceding Lease Year. Said accountant shall certify that he made a complete examination of the books, state sales tax returns, and federal income tax returns of LESSEE and that such statement is prepared in accor- dance with generally accepted accounting principles and practices and represents the Gross Revenues of the LESSEE for the period indicated therein. With each Lease Year statement, LESSEE shall pay to the CITY any unpaid balance of the Base Rent, if any, payable for the preceding Lease Year and the CITY shall refund over payments, if any. In the event the LESSEE fails to prepare or deliver any required annual financial report or statement to the CITY's Finance Director within the time set forth above, the CITY, upon fifteen (15) days written notice to LESSEE, may elect to exercise either or both of the following remedies: a. To treat, as a Default of this Lease, any such omission continuing after thirty (30) days notice thus entitling = the 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. LICENSES; LEASE CHALLENGES 5.1 Licenses and Permits - The LESSEE agrees to bear the cost and expense of obtaining and procuring any necessary licenses, permits and Building Permits, including without limita- tion reasonable attorney's fees incurred in connection there- with. The CITY shall use all reasonable efforts to assist the LESSEE in securing such licenses, permits and Building Permits from the pertinent governmental agencies. The City Manager shall designate a CITY employee as a contact person to expedite and assist LESSEE in seeking CITY approval of licenses, permits and Building Permits. The CITY will use all reasonable efforts to issue any permits and licenses to the LESSEE within fifteen (15) - 19 - [16161=066i business days of the LESSEE's supplying appropriate, adequate and completed applications and fees for such permits and the CITY shall issue all Building Permits as expeditiously as possible. 5.2 Challenge to Lease - The parties agree that in the event there is a successful challenge to this Lease, or any pro- vision hereof, which results in a declaration or order or final decree by a court of competent jurisdiction invalidating this Lease, or a material and substantive portion hereof, the sole and exclusive remedy of the parties hereto will be the cancellation of this Lease and neither party shall have any liability to the other with respect to such cancellation; provided however, that the LESSEE may seek reimbursement for all out of pocket expenses and the actual Construction Cost from any person or entity other than the CITY. At the time that litigation is initiated which challenges the Lease, LESSEE may request from the City Commission a Base Rent abatement during the time of the challenge. The City Commission may abate the Base Rent and may extend the term of the Lease for a period of time equal to the litigation time. VI. MAJOR CONSTRUCTION AND CONSTRUCTION OF IMPROVEMENTS 6.1 Schedule of Construction of Improvements and Con- struction - In accordance with Exhibit "B", on or before ninety (90) days after February 1, 1990, or within thirty (30) days after the issuance of Building Permits, whichever is applicable, LESSEE shall commence construction. The Construction of Improve- ments shall include, without limitation, the following items: a. Travelift, including adjacent travelift pier; b. Launch and recovery basin for stack storage boats, including seawall; C. Renovation and/or replacement of existing wet slips and marina fuel docks; d. Replacement of all anchor and fender pilings and pier pilings as necessary to bring the marina into first-class condition; - 20 - e. Construction of maximum amount of new wet slips proposed, consistent with the first-class quality of the Marina, which shall maximize the use of the Site; f. Construction of a restaurant encompassing up to 3,000 square feet, which shall comply with all CITY, County and State setback requirements and shall be constructed in such a manner as to provide a pleasing vista for observing the Bay and the boatyard operations; g. Renovation of facilities for fuel, oil, and related products; h. Construction of yacht brokerage offices; i. Demolition of small and large hangers of the existing marina; j. Construction of covered dry storage facilities; k. Paving replacement throughout all areas on the Marina Site and site drainage repair through all areas of the Marina Site and additional pavement, sidewalk and drainage improvements in conformance with all applicable codes, laws, ordinances and regulations. 1. Occupational and life safety, fire protection, environmental, handicap access apparatus, equipment, improvements and devices as are required by law, or which, in the LESSEE's - discretion, would be beneficial in the facilities and its opera- tions; M. Baywalk including the following features: a pub- lic access easement with improved walkways, lighting, landscaping and seating shall be provided along the water's edge from north to south to reclaim public property for public open space and provide visual and physical connection to Miami's waterfront. The easement shall be a minimum of 20 feet wide and designed in accordance with the published City of Miami Baywalk Design Standards. The LESSEE will assure public pedestrian access to the baywalk. The CITY recognizes the necessity to separate pub- lic access and boat hauling functions and will consider architec- tural solutions to such separations. - 21 - t s �r n. Landscaping appropriate for the Demised Premises and all Improvements thereon; o. Procurement and installation of such operational office software and office and marine equipment deemed acceptable in first class marine facilities in South Florida for the desired service and functions; P. Perimeter fence adequate to secure the Site and which complies with applicable codes; q. Yard sweeping and maintenance equipment; r. Administrative and management offices, which will include space for the executive offices of any restaurant, lounge or similar use on the Premises, and common reception area and conference room for said offices; S. Full length seawall replacement encompassing the entirety of the seawall contiguous with the Marina Site. t. Flagpole and signage subject to the approval of the City of Miami Planning and Public Works Directors, and in conformance with applicable local laws; U. Construction, renovation and reconfiguration of all on site parking, within the Marina Site, subject to applica- ble laws. v. Construction of a "do-it-yourself" boat repair yard, sufficient to accommodate eight (8) vessels. W. A passive mini -park that shall include land- scaping, lighting, seating, walkways and other appropriate amen- ities. X. All other construction of Construction of Improvements. The LESSEE will finance all the Construction of Improvements provided for herein, and in planning and making all Construction of Improvements the LESSEE shall achieve standards comparable to competitive first-class marine facilities and improvements in the Dade, Broward, and Monroe Counties. All Improvements shall be made at the LESSEE's sole cost and expense and shall become the - 22 - property of the CITY upon termination of this Lease, provided, however, that such items of personal property or fixtures not permanently embedded in or attached or affixed to the Demised Premises and which can be removed by the LESSEE at the expiration or termination of said Lease without injuring the Demised Prem- ises may be removed by the LESSEE at the expiration or termina- tion of the Lease. In the event LESSEE is unable to construct the Construction of Improvements in accordance with the schedule set forth in Exhibit "B", LESSEE may submit to the City Manager a written request seeking an extension of time for completion of the Construction of Improvements, and the City Manager may con- sent to such extension, for good cause, for a period of not less than three (3) months nor more than twelve (12) months. No more than two (2) extensions of such time for any particular Construc- tion of Improvement may be granted. The total time granted for all such extensions shall not exceed a cumulative period of twenty-four (24) months. The construction schedule set forth in Exhibit "B" shall provide time periods for commencement and com- pletion of the specific Construction of Improvements. It is expressly understood and agreed that time is of the essence in meeting the requirements of Exhibit "B". 6.2 Plan Approvals - The construction of any Construction of Improvements on the Marina Site shall be in accordance with the Design Development Documents, the Construction Documents and the Schematic Design Documents. 6.3 Quality of Construction - The Security Deposit shall be returned to LESSEE upon completion of the Construction of Improvements subsequent to the City Manager certifying in writing that said Construction of Improvements was completed in accor- dance with subsection 6.2 hereof, without assuming any liability or duty for such certification. 6.4 Changes in Plans and Specifications - If, after Con- struction of Improvements has begun, LESSEE desires to make sub- stantial changes or additions to Design Development Documents, - 23 - LESSEE shall furnish such changes to the City Manager for his approval, which approval may not be unreasonably withheld or delayed. 6.5 Procedures for Approval or Disapproval - Unless otherwise specifically provided in this Lease, and, further sub- ject to Force Majeure, any consent or approval required by LESSEE from the City Manager pursuant to the terms of this Lease which has not been given within ten (10) business days following receipt of the request for consent or approval by the City Manager, then in such event said consent or approval shall be deemed to have been given. In the event that the City Manager disapproves or qualifies his approval or consent of such within such ten (10) business day period, said written disapproval or qualification shall be in writing setting forth the specific reasons therefore. 6.6 Right of Inspection - During construction on the Pre- mises the CITY may inspect, but shall have no duty or obligation to do so, the Work being performed on the Site and the materials being used or to be used in the performance of such Work. If during construction on the Site, the CITY shall reasonably deter- mine the materials do not substantially conform to the approved Design Development Documents or the construction is not substan- tially in accord with the Construction Documents previously approved by the Building Department of the CITY, notices may be given by CITY to LESSEE specifying the nature of the deficiency, defect, or omission. Upon receipt of such notice, LESSEE shall promptly take such steps as may be necessary to correct such defects, deficiencies or omissions. The LESSEE agrees to permit the City Manager to enter the Premises at any time for any pur- pose the CITY deems necessary for the duration of this Lease. 6.7 Construction Schedules and Completion Dates - Subject to the Force Majeure provisions of this Lease and the limited extension of time provisions which may be granted by the City Manager as specifically set forth in this Lease, Construction of - 24 - Improvements shall commence and be completed as reflected on the attached schedule to this Lease, entitled "Construction of Improvements and Completion Schedule," which is Exhibit "B" to this Lease. 6.8 Improvements to be Property of Lessee During Lease Term; City Afforded Option to Purchase Personalty - During the term of this Lease, the Improvements which may be constructed on the Site, the machinery and equipment which may be installed thereon, and items of personal property which may be used in the operation, management or maintenance of the Site shall be the property of the LESSEE. Upon expiration or termination of this Lease, the Improvements and fixtures on the Site and all Con- struction Documents and all other plans, drawings and specifica- tions for all Improvements on the Site shall become the property of the CITY and shall be surrendered with all documents of title and statements. LESSEE shall warrant and defend its title to the Marina Site, including the Improvements and fixtures, to be free of all liens and encumbrances and all rights and claims of the LESSEE and persons claiming by, through or under the LESSEE, or arising out of the failure of the LESSEE to perform its covenants hereunder. Subject to the CITY's below described option, the LESSEE's movable personal 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 the Premises) as determined by two (2) qualified, independent appraisers, all of the movable personal property to which it has title at the expiration or termination of this Lease and prior to the disposition or removal of same. Additionally, the LESSEE shall furnish to the CITY a detailed inventory listing all equipment or machinery, with a specific description as to each item and date of purchase, within - 25 - I 30 days of the expiration or germination of this Lease. The LESSEE shall select and pay for one (1) independent qualified appraiser to promptly and diligently appraise all such equipment and the CITY shall select and pay for one (1) independent appraiser to simultaneously appraise all such equipment on such list. The average of the two appraisals, within ten (10%) per- cent, shall be considered the fair market value purchase price offered to the CITY for all the equipment and machinery, which CITY shall decide, in its sole discretion, whether to accept or reject such purchase option within thirty (30) days of its receipt of both appraisals. The CITY may refuse such options in which event the LESSEE shall promptly (within thirty (30) days of such refusal) remove such personal property or equipment and machinery from the site, at LESSEE's own cost and expense. 6.9 Cost of Improvements and Equipment - LESSEE, as par- tial consideration and as a condition to this Lease, shall make a minimum investment for the construction of the Construction of ' Improvements in an amount of Four Million Nine Hundred Twenty - Nine Thousand Four Hundred Dollars ($4,929,400). It is expressly understood by the parties that within sixty (60) days following completion of any substantial Ccnstruction of Improvement on the Site, LESSEE shall furnish the City Manager with an itemized statement of the actual construction cost of any such Construc- tion 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 Lien - LESSEE agrees that it shall at all times hold the CITY, its officials and employees, harmless and LESSEE shall indemnify CITY and its officials and employees against claims for labor and materials in connection with supplies, equipment, Improvements, repairs or alterations on the Marina Site, and the cost of defending against such claims, including reasonable attorney's fees. Ten Dollars ($10.00) is granted as separate and distinct consideration for this indemnity. The CITY shall be - 26 - 89--96 Q entitled to declare this Lease in Default in the event the bonds required by § 6.11 have not been obtained or maintained in opera- tive force and effect. 6.11 Payment/Performance Bonds - No construction shall be commenced on the Site by LESSEE until LESSEE has secured and submitted to the CITY for approval pursuant to the City of Miami Code, and § 255.05, Florida Statutes, as may be amended, payment and performance bonds in the amount of one hundred twenty-five percent (125%) of the Work, which will be prorated based on the total construction cost of the Construction of Improvements. LESSEE shall be responsible for maintaining said bonds in full force and effect throughout the entirety of the Construction of Improvements. All bonds will be issued by insurance and surety companies reasonably acceptable to the CITY, and duly qualified to transact such bonding business in the State of Florida, and subject to form and substance approval by the CITY. VI I. SUBORDINATION OF BASE RENT PAYMENTS TO BANK NOT ENCUMBRANCE OR ASSIGNMENT OF LEASE 7.1 No Subordination - The LESSEE hereby agrees that there shall be no subordination of Base Rent payments under this Lease. 7.2 Cross -Default Clause - Irrespective of the subordina- tion provided herein, in the event that Southeast Bank should declare a Default or institute an action for such Default upon its loan documents with LESSEE, or if the acts of LESSEE consti- tute a material breach of its permanent or construction financing in connection with the Construction of Improvements ("Financ- ing"), the LESSEE shall be deemed to be in Default pursuant to the applicable provisions hereof and the CITY may exercise all rights and remedies it may have under law. Provided, further, that in the event there is a Default in the Southeast Bank financing, and Southeast Bank declares a Default, Southeast Bank may assume the Lease and operate the Marina Site subject to each - 27 - 89-96Ci and every obligation of LESSEE expressed in the Lease, and further, subject to the execution of all such documents and instruments in writing in a form satisfactory to the City Attorney. 7.3 Assumption By Southeast Bank of Non -Monetary De- faults - In the event LESSEE's Default may not be cured merely by the payment of money, then the City Commission, in its sole discretion, may allow Southeast Bank to enter into possession of the Premises to cure all Defaults then pending hereunder and complete such curative action thereafter with due diligence if it is commenced during the curative period set forth in this Lease. 7.4 Southeast Bank Right To Cure Period - In the event of a Default, and the expiration of the applicable curative period and the termination of this Lease by the CITY in the manner pro- vided for herein, Southeast Bank, within 30 days after notice in accordance with Section XX herein, may advise the CITY of its intent to: (a) assume the Lease and pay all delinquent Base Rent and other sums due under this Lease; (b) execute within 90 days such documents as are determined legally appropriate by the City Attorney for Southeast Bank's assumption of the Lease, subject to the approval of the City Commission; (c) commence the curing of all other prior Defaults of LESSEE under this Lease within thirty (30) days after assumption of the Lease and shall proceed with due diligence to complete curative actions. In the event Southeast takes such action, LESSEE shall release the CITY and the Commission from all claims hereunder. 7.5 Assignment - LESSEE hereby covenants and agrees that Sherman R. Whitmore, IV, Dr. Marvin Dunn, Ronald J. Falkey, Roberta Balfe, Robert A. Hardin and Clara Keyes Hardin shall maintain his/her proportionate respective interests as set forth in the Proposal, except that the "Agreement for Sale of Joint Venture Interest" set forth in the Proposal, having been rejected by the CITY, shall be null and void. LESSEE shall not assign or transfer, in whole or in part, any part of this Lease nor any - 28 - �9--960 interest it has therein, which shall include without limitation: merger, bulk sale, consolidation, dissolution or sale, or other disposition of any interest in the LESSEE, without the prior written consent of the City Commission, of either the assignment or transfer of interest. 7.6 Sublease Contract Forms - Except as otherwise provided in Section 1.8 of this Lease, LESSEE may sublease all or portions of the Demised Premises with prior written approval of the City Manager. LESSEE shall provide CITY with standard forms for licenses and moorage and dockage agreements which shall require the approval of the City Manager as to the form, but once approved, shall not require further consent unless the form approved shall have been materially modified. CITY acknowledges that LESSEE intends to enter into four (4) Subleases with (1) Dinner Key Boat Yard Limited Partnership for the Dinner Key Boatyard Repair Yard; (2) Dinner Key Boat Yard Limited Partnership for the Dinner Key Boatyard Restaurant; (3) Dinner Key Boat 'lard Limited Partnership for the Dinner Key Boatyard yacht brokerage and (4) Cal -Florida Marine Industries, Inc. for general terms. CITY consents to said Subleases so long as the Subleases conform in all respects with the requirements of this Lease. CITY shall have thirty (30) days from receipt of the four (4) Subleases to review said Subleases for conformity with the Lease. LESSEE shall correct any non- conformity within thirty (30) days of notice by CITY. LESSEE shall insure that any and all Subleases or other form documents shall comply in all respects to the terms, conditions and obligations of this Lease. No Sublease or similar documents shall release LESSEE from its obligations under this Lease. - 29 - VIII. USE OF THE PREMISES 8.1 Allowable 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.* (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, sale of canned beverages, such as juices, sodas, milk, beer and wine (if allowed by law,) and soft drinks. e. Repairs, modifications, construction, design, rigging, outfitting and servicing of boats and vessels. f. Rental and charter of boats; lessons and schools for marine skills and activities; water taxi facilities or other waterborne transportation. g. Information center and telephone, mail in message service and post office boxes. h. Shower and restroom facilities for the use of patrons; vending machines. i. Custodial services by LESSEE, including the furnishing of all maintenance supplies. * The hauling and dry storage of boats up to and including 28 feet in length is exclusively reserved to Grove Key Marina, Inc. pursuant to its lease agreement as amended with the City and executed April 1, 1976. - 30 - tip,. !► A j. 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 by City Manager and other appropriate -governmental authorities. 1. operation and maintenance of recreational bay walk open to the public, who shall have full and free access, in accordance with the terms of this Lease and applicable laws, subject to rules 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 documen- tation, surveying, marina development consultation, marine insur- ance, marine financing, and maritime (admiralty) law, permitting consultation, waterfront real estate brokerage, and marine - related publications. P. Sales of seafood, groceries, fuels and related - products. q. United States Postal Facilities and/or United Postal Service facilities. r. New and used boat sales and trades. S. Lockers t. Permission for any other activities customarily or reasonably associated, affiliated or allied with boatyards and/or marinas, or which may be innovative activities or services associated with same, subject to the approval of the City Manager. 8.2 Continuous Uses For the Benefit of the Public - It is mutually agreed that a condition of the granting of this Lease is the active and continuous operation of a first class marina by the LESSEE, for the purposes herein described, and that said use provides needed public services and provides additional employ- - 31 - ment, taxes and other benefits to the general economy of the CITY. The LESSEE covenants that all facilities located on the Site shall be made available to the general public, subject to the LESSEE's ability to establish and enforce reasonable rules and regulations, including without limitation safety rules and the establishing of dockage rates and other fees, and to provide the efficient, orderly and safe operation and security of the Marina Site. Any rules and regulations promulgated by LESSEE pursuant to this Lease shall be subject to the prior written approval of the City Manager, which shall not be unreasonably withheld. The LESSEE covenants and agrees that it will not enter into any subleases, concessions, sub -tenancies, licenses or simi- lar arrangements relating to the Marina Site for any period of time beyond the stated expiration date of this Lease (unless by the written agreement of both parties). 8.3 No Unlawful Use - LESSEE will not use or allow the Marina Site to be used or occupied for any unlawful purpose or in violation of any certificate, license, permit or other applicable legal or insurance requirement and will not suffer any act to be done or any condition to exist which would constitute a violation of or which will make void cr voidable any insurance then in force with respect thereto. 8.4 Lessee Contributions - The LESSEE, throughout the term of this Lease shall: a. Make two (2) slips available at all times for the continuous use (non -permanent dockage) of boats owned or operated by CITY's law enforcement agencies, such as the police or marine patrol; and b. Haul and paint the bottoms of the two (2) City of Miami owned vessels each year of this Lease; and C. Provide the CITY's Police Department and/or Marine Patrol, a small office of adequate size (not less than thirty (30) feet by twenty (20) feet) equipped with utilities and telephone service, to be furnished at the LESSEE's own cost and - 32 - expense, which shall have adequate visibility to permit identifi- cation. IX. NO REPRESENTATION BY CITY - 9.1 Site Leased "As Is" - LESSEE acknowledges that it has examined the Marina Site and knows the condition thereof, and accepts the Site in its present condition without any represen- tations or warranties of any kind or nature by CITY as to its condition or the occupancy which may be made thereof. However, LESSEE reserves the right to hold third parties accountable or liable for the existing conditions. The LESSEE assumes respons- ibility for the condition, operation, maintenance and management of the Site and all Improvements now or hereinafter situated thereupon "as is" only after April 1, 1990. X. CITY NOT LIABLE FOR FAILURE OF UTILITIES 10.1 City Not Responsible For Utilities - The CITY shall not be liable for the failure of any water supply, gas or elec- tric current nor any other utility, nor any injury or damage to persons or property caused by or resulting from gasoline, elec- tricity, oil, butane gas, kerosene, steam gas or electricity or from hurricane, tornado, flood, lightning, or storms or from disturbances or from water or rain which may leak or flow upon the streets, sewers, gas mains or any other areas of the Marina Site. XI. OPERATING PLAN, REPAIR AND ALTERATION 11.1 Operating Plan - The LESSEE shall prepare an operat- ing plan within ninety (90) days following execution of this Lease and shall submit the plan to the City Manager. The operat- ing plan shall be deemed to be an Exhibit to this Lease, as Exhibit "E", as if attached hereto. The operating plan shall - 33 - t �6Q name key management and executive personnel of the marina operations. The LESSEE shall have a continuing duty to notify the City Manager of any changes in key management personnel or other substantial changes in the operating plan within thirty (30) days from any such change. The LESSEE shall exercise its best efforts to reach agreements with and utilize the services of the minority subcontractors, professionals and operating per- sonnel named in its proposal, but if unable to do so because such firms will not perform the Work at a fee which is no greater than 10% higher than that of the lowest bidder, then LESSEE may sub- stitute other equally qualified and competent minorities; pro- vided, however, in no event shall the minority composition set forth in LESSEE's Proposal. 11.2 Repairs - LESSEE shall maintain the Marina Site in a state of good repair. The LESSEE shall, in accordance with all applicable ordinances, laws and regulations, promptly make or acquire all needed repairs, replacements, renewals or additions, structural or otherwise, to the Site and to the Improvements in order to maintain and keep the Site as a first-class facility throughout this Lease. All repairs, replacements, renewals, and additions, shall be of first-class quality and sufficient for the proper construction, installation, maintenance and operation of the Site. Moreover, the LESSEE shall not allow obstruction of the Site, except in cases of emergency or as may be permitted by the City Manager. 11.3 Indemnification - The LESSEE shall defend and hold harmless the CITY, its officials and employees for and from any claims, actions or suits regarding the work, materials, and sup- plies relative to all work done by the LESSEE, its contractors, and other agents, which work shall be done in a first class work- manlike manner, using only good grades of materials, and shall comply with all insurance requirements and other applicable laws and ordinances, and rules and regulations of governmental agencies. - 34 - 11.4 Operation of Marina Site to be Continuous - Subject to its right to close parts of the Marina Site temporarily For , custodial maintenance, and for such other reasonable cause to be approved by the City Manager, and subject to the provisions of the Force Majeure clause, LESSEE shall continuously operate all of the Marina Site in good faith during the term of this Lease with due diligence and efficiency so as to produce the maximum profits and Gross Revenues reasonably attainable, and shall carry a reasonably complete stock of merchandise and maintain reason- ably adequate personnel for efficiently accommodating its cus- tomers, patrons and guests and additionally shall keep the Marina Site open for business and operate the Marina Site as a high grade, first class facility, in a first class manner. In the event LESSEE shall fail to carry out its business substantially in compliance with the provisions of this Lease, including, with- out limitation, its failure to remain open for business continu- ously as hereinabove provided, then, without limiting the CITY's _ other remedies, the LESSEE after thirty (30) 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 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. XII. MAINTENANCE AND MANAGEMENT 12.1 Maintenance and Management - From February 1, 1990 to the date of termination of this Lease, the LESSEE shall operate and maintain, or cause to be operated and maintained, the Marina Site, in good and safe condition and repair, as other first class - 35 - 89-96Q } r� 0 A facilities in similar usage. LESSEE shall maintain a level of quality of character and operation of the improvement commensu- rate with the level of quality of character and operation of other first class marinas and boatyard repair facilities in South Florida. XIII. LESSEE TO COMPLY WITH LAWS 13.1 LESSEE to Comply With Laws - The LESSEE shall, at the LESSEE's sole expense, promptly comply with and cause its con- tractors to comply with the requirements of every applicable statute, law, ordinance, or regulation promulgated by federal, state, municipal and other public bodies, departments, bureaus, authorities or agencies. XIV. INSPECTION BY CITY 14.1 Inspection by CITY - The LESSEE shall permit or shall 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 possi- ble interference with the LESSEE's business. 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 extension by the City Manager. XV. 15.1 General Requirements - All insurance required by virtue of this Lease shall be issued by insurance companies or carriers that are rated A:X, or better, per A.M. Best's Key Rating Guide, latest edition, and which are duly licensed to transact the applicable kinds of insurance business, and issue - 36 - y t 89-960 0 f% the appropriate kinds of insurance coverage in the State of - Florida. All policies shall be delivered promptly when required to the CITY, One Southeast Third Avenue, Miami, Florida 33131, _ which shall receive sixty (60) days written notice of any material modification or cancellation of such policies (accord form certificates must be modified accordingly). The LESSEE agrees that the insurance coverage provided for herein, shall be maintained in full operative force and effect throughout the term of this Lease and that the certificates and policies reflecting such insurance coverage will be duly filed, as renewed or replaced from time to time, with the CITY's Insurance Manager. If the CITY's insurance manager requires, the policies for insur- ance shall name the CITY as an additional named insured. The following insurance coverages will be maintained by the LESSEE throughout the course of this Lease: a. A commercial general liability policy in the amount of One Million Dollars ($1,000,000) which shall include the following coverages: i. Contractual coverage, as pursuant to the hold harmless agreement with the CITY provided for herein which shall -rovide as follows within its policy language; LESSEE further covenants that it will indemnify and save the CITY, its officials and employees harmless in and up to the amount of One Million Dollars ($1,000,000) per occurrence against any and all legal liability, actions, suits, demands, penalties, damages, expenses and judgments arising from injuries or damages to per- sons or property during the term hereof occasioned by any act or acts, omissions, or co -omissions of LESSEE, or any of its employees, agents, concessionaires, sublessees, invitees and licensees, growing out of the use and occupancy of the Marina Site by LESSEE or any of aforementioned persons or entities, and this shall be construed to encompass any such liability of the CITY by virtue of its ownership of the Marina Site. This insur- ance coverage shall provide that this coverage is primary to all - 37 - other coverages carried by the CITY, and shall include cross liability or severability of interest clause endorsement; a broad form property endorsement; a product and completed operations clause; coverage for independent contractors; and personal injury - liability. This insurance shall in no way be construed, inter- preted or applied as a waiver of the CITY's sovereign immunity under the laws of the State of Florida, which the CITY expressly reserves and retains. b. Proof of worker's compensation coverage shall be provided as per Chapter 440, Florida Statutes, as amended, and proof of federal worker's compensation coverage shall be provided as per the Jones Act and Longshoreman's Act and other applicable laws. C. In the event the LESSEE shall own or operate any boats or vessels of its own, the LESSEE must provide throughout such period of ownership or operation, liability insurance cover- age in the amount of One Million Dollars ($1,000,000). 15.2 Insurance Shall be Provided as New Facility and Improvements are Built and Placed Into Public Operation - From the commencement to the completion of the Construction of Improvements (and acceptance of the Construction of Improvements) in accordance with all applicable laws and codes, an owner's and contractor's protection liability policy shall be issued naming the CITY and the LESSEE as additional insureds for single limits of One Million Dollars ($1,000,000) for bodily injury and prop- erty damage. No waiver of the CITY's sovereign immunity, as provided above, shall be intended by such insurance. Addition- ally, the following insurances shall be in force and effect during all construction periods until completion and acceptance: i a. XCU (Explosion, Collapse and Underground Cover- age) to be specifically covered naming the CITY and the LESSEE as i designated insureds; 1 I b. All -builders Risk Policy in which the CITY shall i be named as additional insured as its interest may appear, and it - 38 - shall fully cover against the loss or damage of the work during the course of construction, including fire, extended coverage, vandalism and malicious mischief. Under this insurance, provi- sions shall be made to continue coverage after the building and/or buildings, marina, wet slips, dry storage and other facil- ities and improvements to be constructed pursuant to this Lease are completed, for the term of this Lease. C. Proof of automobile coverage for limits of One Hundred Thousand Dollars ($100,000.00), single limit for bodily injury and for property damage shall be provided, naming the CITY as an additional insured as its interest may appear. 15.3 After Completion of all Improvements, the Additional Insurance Coverage to be Provided by LESSEE - a. A comprehensive property coverage including fire and extended coverages, vandalism and malicious mischief, shall be provided to the CITY based on the replacement cost of the building and/or buildings, marina slips, storage and other faci- lities and improvements to be constructed pursuant to this Lease naming the CITY as insured as its interest may appear. (Business interruption coverage shall be provided to the CITY in amounts to be determined by the CITY's Insurance Manager 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 i be provided with a minimum limit of coverage in the amount of Three Hundred Thousand Dollars ($300,000.00). The City Manager may waive this requirement upon a showing that such coverage is a impracticable to secure. i C. In the event sailing instruction classes, snor- keling classes, or any other maritime classes be given, teachers - 39 - t e9--9so #4 r legal liability insurance shall be provided to cover instructors and the minimum limit of coverage shall be Three Hundred Thousand - Dollars ($300,000.00). d. Marina Operator's Legal Liability and Comprehen- sive Liability shall be maintained during the term of this agree- ment. Upon the commencement of any repair, maintenance and simi- lar work on vessels and boats and/or shoppers repair marina oper- ations insurance covering property under the care, custody and control of the LESSEE or its agents shall be provided for such purpose, with minimum limits of coverage in the amount of One Million Dollars ($1,000,000.00) and with legal liability insured for the statutory limits of three to five years. e. Proof of automobile coverage should be provided for automobiles owned, hired or leased to the LESSEE and garage keepers legal liability to cover valet parking services in the event any are offered with limits of one hundred thousand dollars ($100,000) for bodily injury and for property damage. f. It is understood that if the LESSEE does not conduct such activities on the Premises, it is not required to obtain the particular insurances set forth above. If the LESSEE is to deviate from any of the uses specifically provided for herein, the LESSEE has a contractual duty and obligation to con- fer with the City of Miami Insurance Manager and will use all reasonable efforts to obtain any such insurance, at its own cost and expense, as stated by the CITY's Insurance Manager for such additional uses of the property. 15.4 Cooperation with Insurance Proceeds - LESSEE and CITY shall cooperate in connection with collection of insurance money and proceeds that may become payable in the event of a loss, and LESSEE and CITY will cooperate in executing such proofs of loss and other documents that may be required by insurance carriers for the purpose of obtaining the recovery of any such insurance monies. - 40 - 15.5 De20sit of Certificates and Insurance Documents - Certificates of insurance evidencing the coverage required to be maintained by LESSEE hereunder shall be delivered and deposited with the CITY's Insurance Manager as well as receipted bills or other proofs satisfactory to him of payment of premiums of insur- ance policies which are required to be maintained under this lease. All such policies shall provide that any loss payable thereunder shall be adjusted by the CITY, LESSEE, and if neces- sary, Southeast Bank, and that the proceeds of such insurance shall be paid to and deposited with the bank or trust company of the CITY's selection within the City of Miami, Dade County, Florida, having assets in excess of Twenty Million Dollars ($20,000,000.00) as insurance trustee (insurance trustee) which shall hold, apply and make available the proceeds of such insur- ance to the CITY, the LESSEE and if necessary, Southeast Bank as its respective interest may appear in accordance with the terms of this Lease. The LESSEE shall be required to file with the CITY's Insurance Manager certified copies of renewal policies evidencing their existence together with proof of premium pay- ment. 15.6 Change of Coverage - The provisions for insurance contained herein may be altered subject to prior written approval of the City Manager. XVI. DAMAGE AND DESTRUCTION 16.1 Obligation to Rebuild - If, during the term of this Lease, any Improvements on, at or appurtenant to the Marina Site, i or used in connection therewith are destroyed or damaged, in 1 whole or in part, by fire or other cause, LESSEE shall, at its sole cost and expense, regardless of whether any applicable insurance proceeds are sufficient for that purpose, restore, repair, replace, rebuild, modify or alter ("Restoration" or "Restore") the same, so as to minimize any loss in the reduction - 41 - s9-9 0 of Base Rent, and in such a manner to enable the continued usage of the Marina Site as contemplated by the provisions of this Lease, so that the fair market value of the Improvements on the Site after such Restoration is completed is at least equal to the fair market value of the Improvements on the Site prior to the damage or destruction. CITY shall have no obligation to Restore or to pay for the cost of Restoration. Immediately after such damage or destruction, LESSEE shall notify CITY in writing and state the LESSEE's reasonable estimate of the cost of the necessary Restoration. 16.2 Damage Less Than $200,000.00 - In the event there is any destruction or damage to the Site or any portion thereof, and the cost of Restoration, as estimated by LESSEE, and concurred in by the City Manager, is less than $200,000.00, the insurance trustee will be authorized to pay over the proceeds of any insur- ance payable on account of such damage or destruction directly to the LESSEE upon the receipt of a written notice from the CITY authorizing such payment, and LESSEE will then diligently proceed with the Restoration of the Site, as set forth above. 16.3 Damage of $200,000.00 Or More - In the event of destruction or damage to the Marina Site, or any portion thereof, such that the cost of Restoration as estimated by LESSEE, and agreed to by the City Manager, is Two Hundred Thousand Dollars ($200,000.00) or more, Restoration shall proceed by plans and specifications for Restoration to be submitted by LESSEE to the City Manager, within ninety (90) days of such damage and destruc- tion, and then in the City Manager's judgment and discretion the City Manager may approve or disapprove all said plans for Restoration being submitted in the same manner as the original plans and diagrams submitted to him under this Lease. Such Restoration will attempt to maximize the continued usage of the Site with the minimum interference to its operations and minimize the impact of any loss as set forth in 16.1 above. After there is an approved plan of Restoration, the insurance trustee, upon - 42 - 89-960 written approval of the City Manager, will promptly deposit any insurance proceeds in a capital expenditure account to be utilized, along with any interest accruing thereon, for the Restoration. LESSEE hereby agrees to commence Restoration of the Site as expeditiously as possible, but, in any event, no later than six months after the disbursement of funds by the insurance trustee. 16.4 Disbursement Requests - A copy of each disbursement of the insurance proceeds shall be mailed to the City Manager by the insurance trustee and shall state in reasonable detail the basis for the disbursement. 16.5 LESSEE to Furnish Assurances - The LESSEE shall pay for any deficiency in Restoration not covered by insurance. LESSEE shall demonstrate to the City Manager, by either an irre- vocable letter of credit or by some other acceptable guarantee, approved by the City Manager, a source for the payment of any deficiency. 16.6 No Termination Of Lease - No destruction or damage to the Marina Site, unless it is a total destruction pursuant to § 16.7 of this Lease, shall permit the LESSEE to terminate this Lease or relieve the LESSEE of its liability to pay the Base Rent (except as provided in Section 27.1), and other charges payable under this Lease, and the LESSEE waives any rights it has or may hereafter have to terminate the Lease. 16.7 No Obligation to Restore under Certain Circum- stances - Notwithstanding anything to the contrary in this Lease, LESSEE shall have no obligation to Restore the Marina Site during the last three (3) years of the term of this Lease when the damage or destruction exceeds $200,000.00, or if, at any time during the term of this Lease there is damage or destruction which is not required to be insured against, the Restoration cost of which exceeds fifty percent (50%) of the amount of all the Improvements made by the LESSEE. - 43 - 139 Q e C% 16.8 Excess Insurance Proceeds - In the event insurance proceeds exceed the cost of Restoration, and the LESSEE (for a period not exceeding six (6) months cumulatively) has not paid - its Base Rent due to Force Majeure as set forth in Section XXVIII, then such excess, upon completion of Restoration, shall be applied against Base Rent pursuant to the terms of this Lease. XVII. CITY MAY CURE DEFAULTS 17.1 CITY May Cure Defaults - In the event of a LESSEE Default in the performance of any covenant or condition of this Lease, the City Manager, without being under obligation or duty to do so and without waiving the CITY's legal remedies for Default, may, without notice to the LESSEE, declare that an emergency exists and perform such covenants and conditions. The LESSEE shall hold harmless, indemnify and defend the CITY against any claim, action or proceeding instituted by reason of the i CITY's performance of such covenant and condition resulting from a Default of the LESSEE. XVIIZ. TERMINATION OF AGREEMENT 18.1 Events of Default - The CITY may terminate this Lease after written notice and opportunity to cure as provided herein, if any one or more of the following events of Default occur: a. Default in Base Rent. In the event LESSEE Defaults in the timely payment of Base Rent, or any interest I thereon, or other sums or charges payable by LESSEE under this I Lease, and such Default shall continue for a period of thirty (30) days after written notice thereof from CITY to LESSEE, which notice shall state the amount of such rent and other sums or charges then due and the date or dates upon which the same were due and payable under the terms and provisions of this Lease (except that allowed deferrals of Base Rent as stated elsewhere in this Lease shall not be deemed to be events of Default); - 44 - ' C7w7 .7VQ 0 c% b. Default in Lease Compliance. In the event LESSEE Defaults in the performance or compliance with any of the terms, conditions, covenants, agreements or conditions contained in this Lease and such Default shall continue for a period of thirty (30) days after written notice thereof from CITY to LESSEE, describing with reasonable particularity the Default of LESSEE and the approximate date on which such Default occurred - (provided, however, that LESSEE shall not be deemed to be in Default if substantial rectification of said Default shall be commenced in good faith before the end of said thirty (30) day period of cure, and correction thereof shall be prosecuted with due diligence to completion); C. Default by Bankruptcy or Insolvency; Executions. If LESSEE shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or action seeking LESSEE's reorganization, merger, dissolution, or termination, or makes an assignment or bulk transfer for the benefit of its creditors, suffers a writ of execution, attachment, levy, garnishment or similar writ in the nature of legal process to be effectuated against the Marina Site or any personal property thereon, is a debtor in any action involving LESSEE, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or 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 trustee, receiver or liquidator of LESSEE or of all or any substantial Epart of its personal properties or of its interest in Site, and i after due notice and failure to cure by LESSEE such events of Default as provided herein, the City Manager may, upon one (1) further thirty (30) day written notice, terminate and cancel this Lease. Any of the aforementioned events of Default shall operate as an automatic termination of the Lease, following thirty (30) days after the second thirty (30) day written notice from the - 45 - 0 0% CITY has passed. At that time, the Lease shall automatically terminate 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 the LESSEE in any court of competent jurisdiction for a judicial determination of the rights of the parties. 18.2 Right to R.elet - At any time that there is a Default of any type by LESSEE and Sublessee and from time to time after any event of Default, 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 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 and receive the rents therefor. The CITY shall use its reasonable efforts to relet the Marina Site, or otherwise secure setoff revenues from its own operation of the marina, in which case the LESSEE would be liable for the CITY's operating deficit calculated by using standard accounting principles. 18.3 LESSEE's Continuing Obligations - No such expiration or termination of this Lease shall relieve LESSEE of its liabi- lity and obligations under this Lease. In the event of any such expiration or termination, whether or not the Marina Site, or any part thereof, shall have been relet, LESSEE shall pay to the CITY as damages the present value of the Lease, which shall be accel- erated with interest to the date of the Default. 18.4 No Waiver - No failure by either party to insist upon the strict performance of any term, covenant, agreement, provi- sion or condition of this Lease or to exercise any right or reme- dies consequent upon a Default thereof, and no acceptance of full or partial Base Rent during continuance of any such Default, shall constitute a waiver of any such Default or of such term, covenant, agreement, provision or condition of this Lease unless otherwise agreed to in writing by the parties hereto. - 46 - 89-96 C f 4 c% 18.5 Rights Cumulative - Each right and remedy of either party provided for in this Lease shall be in addition to every other right or remedy provided for in this Lease or now or here- after existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by either party of any one or more of the rights or remedies provided for in the Lease shall not preclude the simultaneous or later exercise by either party of any or all other rights and remedies provided for in this Lease. 18.6 Lessee Responsible for Sublessees - Any violation of any covenant or provision of this Lease, whether by act or omis- sion, by any Sublessee or subtenant, concessionaire, licensee and the like acting under a written or oral agreement with the LESSEE or Sublessee, or their representatives, successors or assigns, or any other persons occupying space in the Marina Site, shall be deemed a violation of such covenant or provision by the LESSEE and a Default under this Lease. However, LESSEE or Sublessee shall be given an opportunity to cure the Default in the same manner as provided in § 18.1. XIX. CITY INTEREST NOT ENCUMBERED 19.1 City's Interest in Site Not to be Encumbered - Neither the CITY's interest in the Marina Site nor Improvements thereon, nor the rights of CITY under this Lease shall be encumbered by or to any mortgage, chattel mortgage, security interest, security agreement, conditional sale contract, or conditional bill of sale or any other pledge, lien or encumbrance -� to be made or created by LESSEE on the Lease and/or on the Marina Site, nor shall the LESSEE in any event have any right or author- ity to create any liens or encumbrances on or affecting the CITY's rights and interest in the Marina Site or Improvements ( thereon. Subject to the written approval of the City Commission { and provided LESSEE is not in Default, LESSEE may encumber its interest in the Lease, the Improvements and the equipment located F - 47 - 3 1 on the Site, solely for purposes which relate to the improvement, operation, maintenance or any other need related to or arising from the boatyard business at the Site. However, encumbrance of LESSEV s interest in the Lease and Construction of Improvements for the purpose of financing said Construction of Improvements is hereby approved. XX. NOTICES 20.1 Notices - All notices, demands, requests or communi- cations by LESSEE to CITY shall be deemed to have been properly served or given, if delivered personally or sent by United States registered or certified mail, return receipt requested, postage prepaid, addressed to: City Manager - 3500 Pan American Drive Miami, Florida 33133 and City Attorney 1100 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 or to such other address and to the attention of such other party as CITY may from time to time designate by written notice to LESSEE addressed to: Dinner Key Boatyard Joint Venture Attention: Sherman Whitmore and Marvin Dunn, Bob Hardin 2640 South Bayshore Drive Miami, Florida 33133 and with a copy to legal counsel for the LESSEE: Robert H. Traurig, Esq. GREENBERG, TRAURIG, HOFFMAN, LIPGFF, ROSEN & QUENTEL, P.A. Attorneys for LESSEE 1221 Brickell Avenue Miami, Florida 33131 John H. Thomas, Esq. JOHN H. THOMAS, P.A. Attorneys for Sublessee 3037 S.W. Fourth Avenue Miami, Florida 33129 All notices, demands, requests or communications by CITY to LES- SEE shall be deemed to have been properly served or given if delivered personally, or sent by United States registered or cer- tified mail, return receipt requested, postage prepaid, addressed- - 48 - f 1 to the LESSEE, at the above address, or to such other address and to the attention of such other party as LESSEE may from time to time designate by written notice to CITY. XXI. INDEMNIFICATION 21.1 Indemnification - The LESSEE shall indemnify and hold harmless, the CITY, its officials and employees, against any and all claims, suits, actions, damages, liabilities, debts, proceed- ings, or causes of action connected with, related to, by reason of, or arising out of any personal injury, loss of life, or dam- age to property sustained in or on the Marina Site by reason of or as a result of LESSEE's planning, construction, design, leasing, management uses, activities, acts, failures to act, omissions, and operations relating to said Marina Site including, but not limited to all costs, attorney's fees, expenses and liabilities incurred in the defense of any claim and the investi- gation thereof, inclusive of appellate costs. The LESSEE will — pay, discharge or appeal all judgments issued therein and shall pay or appeal all damages which may issue thereon. The LESSEE will defend the CITY, its officials or employees, at its own cost and expense. This section will apply regardless of whether the actions sound in tort or in contract, in law or in equity. LES- SEE further agrees to indemnify, defend, and save harmless the CITY, its officials, agents and employees, from any and all claims and losses accruing or resulting to any and all contrac- tors, subcontractors, materialmen, laborers, and any other per- son, firm or corporation furnishing or supplying work, services, — materials or supplies in connection with the performance of this contract and from any and all claims, actions, suits, and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by LESSEE in the performance of this Lease or of that person, firm or corporation's agreement, license, permit, concession, Sublease or other written instrument or oral understanding with the LESSEE. 49 - �' 89--960 The foregoing agreements of indemnity are in addition to and not by way of limitation on any other covenants herein. One Dollar ($1.00) is given as distinct, separate and independent consideration for the granting of this indemnity, along with the other valuable consideration, receipt of which is acknowledged by LESSEE. The foregoing indemnity will be incorporated as an addendum, rider, clause or appendix to all liability insurance required by this Lease. XXII. LIENS 22.1 Liens - The parties hereto agree that the CITY is not and shall not be liable for any labor, supplies or materials fur- nished or to be furnished to the LESSEE on credit, and that no mechanics, suppliers, laborers, statutory, equitable or other lien of any nature for any such labor or materials or supplies shall attach to or affect the title, estate or interest of the CITY in and to the Marina Site and/or the remainder or other estate or interest of the CITY in and to the Marina Site. In order to assure the CITY the payment of Base Rent hereunder, the LESSEE covenants that whenever and as often as any mechanics' or similar lien shall have been filed against the Marina Site, based upon any act or interest of the LESSEE or of any one claiming through the LESSEE, or any and all conditional bills of sale or chattel mortgages or security agreements, and such lien is not discharged, of record, within fifteen (15) days after notice to LESSEE, the CITY may (but has no obligation to) pay the amount of such mechanics' lien, conditional bills of sale or chattel mort- gage or security agreement (limited to liens affecting CITY's real estate interest and the Improvements thereon and excepting liens affecting LESSEE's movable, personal property which result from bona fide transactions for fair value) or discharge the same by deposit, and the amount so paid or deposited, with interest thereon, shall be deemed additional Base Rent for purposes of the - 50 - ;a o ' ' CITY's rights and remedies under this Lease, and shall be payable forthwith with interest at the rate of one percent (1%) per annum over the New York prime rate of interest. XXIII. WAIVERS IN WRITING 23.1 Waivers and Surrenders to be in Writing - The receipt of Base Rent by the CITY, with knowledge of any breach of this Lease by the LESSEE or of any Default on the part of the LESSEE in the observance or performance of any of the conditions, agree- ments or covenants of this Lease, shall not be deemed to be a • — waiver of any provision of this Lease. No failure on the part of the CITY to enforce any covenant or provision herein contained, nor any waiver of any right hereunder by the CITY, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of the CITY to enforce the same in the event of any subsequent breach or Default. No covenant or condition of this Lease shall be deemed to have been waived by the CITY unless such waiver be in writing, signed by the City Manager. XXIV. NO CONTRACTS BEYOND LEASE TERM 24.1 No Contracts Beyond Lease Term - The LESSEE covenants and agrees that it will not enter into any subleases, subtenancies, licenses or concession agreements relating to the Marina Site for a period of time beyond the stated expiration date of this Lease. XXV. 25.1 Net Lease - This Lease shall be deemed and construed to be a "net lease" and the LESSEE shall pay to the CITY abso- lutely net throughout the term of this Lease, the Base Rent and other payments hereunder, free of any charge, assessments, impo- sitions, expenses or deductions of any kind and without abate- - 51 - QM ment, deduction or setoff. The CITY shall not be expected or required to make any payment of any kind whatsoever (unless reim- bursed by LESSEE) or be under any other obligation or liability as to the Marina Site except as otherwise specifically stated in this Lease; and the LESSEE agrees to pay all costs and expenses of every kind and nature whatsoever arising out of or in connec- tion with the Marina Site which may arise or become due during the term of this Lease, and which except for the execution and delivery hereof, would or could have been payable by the CITY. XXVI. STATEMENTS 26.1 City and Lessee to Furnish Statement - The CITY, within twenty (20) days after written request the by LESSEE or by any holder or prospective holder of a mortgage on this Lease, will furnish a written statement to the requesting party deline- ating: (1) the amount of the Base Rent then due, if any; (2) whether or not the insurance required by this Lease has been supplied in compliance therewith; (3) whether or not this Lease is unmodified and in full force and effect (or, if there have been modifications, that the same are in full force and effect as modified, and stating the modifications); (4) whether or not to the best of the CITY's knowledge, LESSEE is in Default and spe- cifying the nature of such Defaults; and (5) such other matters as LESSEE or the mortgagee may reasonably request. The LESSEE, within twenty (20) days after written request of CITY, will furnish a written statement, as to (1) whether the Lease is unmodified and in full force and effect (or, if there have been modifications, that the same are in full force and effect as modified and stating the modifications); (2) whether there are any Defaults thereunder on the part of CITY to the knowledge of the LESSEE and specifying the nature of such Defaults, if any; and (3) such other matters as CITY may reason- ably request. - 52 - 1� Xxvit. FORCE MAJEURE 27.1 Force Majeure - In the event of Force Majeure, LESSEE, after written notice to the City Manager of commencement of the Force Majeure event, may be excused from payment of its Base Rent for a cumulative period of six months over the term of this Lease. Said Base Rent together with interest shall be paid to the CITY within the time period and upon the terms provided for on a separate letter agreement with the City Manager. Either party hereto shall give written notice of such delay to the other party within twenty (20) days of the such event of Force Majeure; provided, however, that LESSEE's inability to obtain financing shall be deemed a cause within the reasonable control of LESSEE. XXIII. EQUAL EMPLOYMENT 28.1 Equal Employment Opportunity and Nondiscrimination - LESSEE shall not discriminate against any employee or applicant for employment because of race, age, color, religion, handicap, sex or national origin and shall take such affirmative action as may be required by federal, state, or local law, ordinance or a. Only vessels in good condition will be permitted in the dockage and mooring area. b. The LESSEE will enforce rules that prohibit the use of charcoal burners, open flame torches, and any other open flame -producing equipment. C. The LESSEE shall enforce rules and regulations prohibiting the throwing overboard of any objects, such as gar- bage, trash or human waste, and shall enforce other rules prohi- biting swimming, recreational diving or fishing from the wet slips. d. All vessels will be subject to the CITY's pub- lished Mooring and Dockage Ordinances, as amended. 29.2 Dockage and Storage Rates - The LESSEE shall estab- lish dockage and storage rates and rates for the use of other facilities and services. 29.3 Public Notices - The LESSEE shall have the right to post notices and enforce reasonable policies and regulations, including but not limited to requirements that no individual, corporation or other entity, including "freelance" carpenters, painters► mechanics, riggers, brokers, electricians, installers, cleaners, hull cleaners, or peddlers, may do business on the Marina Site. XXX. HOLDING OVER 30.1 Holding Over - In the event LESSEE or the Sublessee shall hold over after the expiration of this Lease for any cause, such holding over shall be deemed a tenancy from month to month only, at the same Base Rent and upon the same terms, conditions and provisions of this Lease, unless other term, conditions and provisions be agreed upon in writing by CITY and LESSEE or its Sublessee; provided, however, nothing herein set forth shall be construed to allow LESSEE to hold over without the prior written consent of the CITY. - 54 - 89-960 � G XXXI. SIGNAGE 31.1 Signage: a. Any and all signs on the property herein described must comply with applicable laws, rules and regulations and will be subject to the reasonable approval of the City Public Works and Planning Directors. b. Subject to applicable ordinances and regula- tions, the LESSEE shall have the right to maintain an appropri- ate, authorized sign on CITY property at or near the 2640 South 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 war- rants that it is aware of the conflict of interest laws of the City of Miami, Dade County, Florida, and the Florida Statutes, 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 obli- gations 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 of this Lease. 32.3 Gender of Words - Words of any gender in this Lease shall be held to include any other gender and words in the singu- lar shall be held to include the plural. 32.4 No Broker - LESSEE represents and warrants that LESSEE did not deal with any real estate broker, agent or finder in connection with this Lease so as to give rise to any liability on the part of CITY, and LESSEE shall hold and save CITY harmless - 55 - oil from any and all claims or demands by real estate brokers, agents or finders with whom LESSEE deals or has dealt contrary to the foregoing warranty and representation. One dollar ($1.00) is given as distinct, separate, and independent consideration for the granting of this indemnity. 32.5 Severability - If any provision of this Lease (other than those relating to payment of Base Rent and other sums or charges to CITY, are declared invalid or unenforceable by a court of competent jurisdiction, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. 32.6 Successors - The covenants, agreements, terms, provi- sions and conditions contained in this Lease shall apply to and inure to the benefit of and be binding upon the CITY and the LESSEE and their respective successors and assigns, except as expressly otherwise herein provided, and shall be deemed cove- nants running with the respective interests of the parties here- to. 32.7 Surviving Covenants - Each provision of this Lease which may require performance in any respect by or on behalf of either LESSEE, CITY or third parties after the expiration or termination of the Lease shall survive such expiration or earlier termination. 32.8 Memorandum of Lease - The parties hereto agree to prepare a short memorandum of this Lease suitable for filing so as to put third parties on notice as to the existence of this Lease. All recording fees, taxes and other expenses relating to the granting of this Lease and to the recording of such memoran- dum of Lease shall be borne exclusively by LESSEE. 32.9 No Usury - In the event any charge, interest or pay- ment is deemed usurious by a court of competent jurisdiction the maximum rate allowed by Ch. 687, Florida Statutes, as amended, shall apply. - 56 - 32.10 Consent - Where this Lease requires that consent be given by either party, said consent shall not be unreasonably withheld or delayed. 32.11 Access and Location of Particular Improvements - CITY agrees, to the extent allowed by law, to grant LESSEE, or appro- priate public utility companies if requested by LESSEE, rights - of -way (to be located so as to give said utilities and/or LESSEE i as convenient access to the Marina Site as is practicable), with- ' out unreasonable interference with the use by CITY of its prop- erty; provided that the location of such access, insofar as it - affects any of the CITY's property within or outside of the Marina Site, shall be approved in writing in advance by the City Manager; provided that such rights -of -way for access may be granted by the CITY in its discretion only for the duration of the term of this Lease or any extension thereof; and provided further that LESSEE shall assume all risks, costs or other obli- gations imposed or incurred as a result of provision of such access. It is expressly understood that CITY reserves the right to install, or to permit the installation, including the right to grant rights -of -way to others, of utility services and other access (including over and to the baywalk) over, across, through, or under the Marina Site provided that such access shall not unreasonably interfere with LESSEE's use of the Marina Site as herein contemplated. 32.12 Public Access Preserved - The LESSEE agrees to pro- vide maximum public access to its operation consistent with the public safety, reasonable security for boat owners and the patrons and guests and insurance requirements. To the extent allowed by law, the LESSEE may limit access to its baywalk to normal business hours, and may place other restrictions on access as may be necessary to comply with public safety, applicable CITY, State and Federal regulations, and insurance requirements consistent with the safe, normal and prudent operation of a full- - 57 - 89-~9f C service boatyard and marina; provided, however, that such regu- lations shall allow access to the baywalk, Biscayne Bay, and the restaurant. 32.13 Applicable Laws - This Lease shall be governed by the State of Florida. 32.14 Venue - Venue in any civil actions or proceedings arising out of or by virtue of this lease shall be in Dade County, Florida. 32.15 Reimbursement - Upon execution of this lease agree- ment LESSEE shall reimburse the CITY the Jump sum of $47,500 representative of CITY's out of pocket direct costs of evaluating the proposal submissions for the Unified Development Project. 32.16 Minority Procurement Compliance - The LESSEE acknowl- edges that it has been furnished a copy of Ordinance No. 10538, the Minority and Women Business Affairs Procurement Program ordi- nance of the City of Miami, and agrees to comply with all appli- cable substantive and procedural provisions therein, including any amendments thereto. 32.17 Award of Agreement - The LESSEE warrants that it has not employed or retained any person employed by the CITY to soli- cit or secure the Lease and that it has not paid, or agreed to pay any person employed by the CITY any fee, commission, percent- age, brokerage fee, or gift of any kind contingent upon or resulting from the awarding of the Lease. 32.18 Employees - LESSEE shall use his best efforts to retain and/or rehire all non -managerial employees of Merrill Stevens Dry Dock Company employed at the time at the execution of this Lease at the 2640 S. Bayshore Drive Property and shall fur- nish a letter to the City Manager within thirty (30) days of the execution of this Lease detailing such efforts. All non -managerial employees of the LESSEE shall be cour- teous, well-groomed and shall wear either a uniform or other identification. - 58 - Y1 XXXIII. EMINENT DOMAIN 33.1 Permanent Taking - In the event all of the Marina Site shall be permanently appropriated or taken under the power of eminent domain by any public or quasi -public authority, this Lease shall terminate and expire as of the date of such taking, and both CITY and LESSEE shall thereupon be released from any liability thereafter accruing hereunder. In the event more than twenty-five percent (25%) of the total square footage of the Marina Site is permanently taken under the power of eminent domain by any public or quasi -public authority, or if by reason of any appropriation or taking, regardless of the amount so taken, the remainder of the areas of the Marina Site are not usa- ble for the purposes for which the Premises were leased, then LESSEE shall have the right to terminate this Lease, as of the date LESSEE is required to vacate the Site, upon giving notice to the CITY in writing of such election within sixty (60) days after the date of such taking. In the evert of such termination, the LESSEE and CITY shall thereupon be released from any liability thereafter accruing hereunder. If this Lease is terminated as hereinabove provided, all Base Rent and other charges for the last month of LESSEE's occupancy shall be prorated, and CITY agrees to refund to LESSEE any Base Rent paid in advance and to return the security deposit (exclusive of interest) in accordance with the provisions of this Lease. For purposes of this Section, a taking for more than six (6) months shall be deemed a permanent taking. A voluntary sale or conveyance in lieu of condemnation, but under threat of condemna- tion, shall be deemed an appropriation or taking under the power of eminent domain. If this Lease is not so terminated, LESSEE shall remain in that portion of the Marina Site which shall not be appropriated or taken as herein provided, and LESSEE at LESSEE's cost and expense shall, as soon as is reasonably possible, restore the - 59 - remaining portion of the Premises to the same quality and character of facilities, improvements and operations as existed prior to such appropriation or taking to the greatest extent possible. Any change to the Base Rent shall be agreed to by CITY 4 and LESSEE prior to such restoration. If the parties cannot agree within 90 days the Base Rent remains the same as set forth in Section III hereof or LESSEE may terminate the Lease upon 4 sixty (60) days notice from the date of the parties' failure to f agree. In the event the Marina Site, or any part thereof, shall be acquired by appropriation or taking at any time during the term of this Lease, the division of the compensation therefor shall be based upon the respective interests at law of all parties having an interest in said areas. Any portion of such compensation attributable to the Improvements shall be first applied to retire any Construction of Improvement's indebtedness in the order of its priority and then paid to LESSEE. 33.2 Temporary Taking - If the temporary use of the whole or any part of the Marina Site shall be taken by any lawful power of authority, by the exercise of the right of eminent domain, LESSEE shall give prompt notice thereof to CITY. The term of this Lease shall not.be reduced or affected in any way and LESSEE shall continue to pay in full the Base Rent without setoff or reduction. Base Rent may be deferred for the time of the taking upon approval of the City Manager. LESSEE shall be entitled to receive for itself all awards or payments made in connection with the taking, including, without limitation, awards for such use during the remaining term of this Lease and awards for damages to or restoration of the Marina Site (including damages to any remainder not taken), after all Base Rent payments to the CITY are current and satisfied. When possession of the whole or such part of the Marina Site as shall have been taken for such temporary use reverts to the LESSEE prior to the expiration or earlier termination of the term of this Lease, LESSEE shall promptly, at LESSEE's sole cost and expense, restore the building so that the Marina Site shall upon completion of such restoration be in substantially the condition it was in prior to such taking, ordinary wear and deterioration excepted. 33.3 City Taking - The provisions of this Section do not apply if the CITY uses its power of eminent domain whether for a total, partial or temporary taking or under threat of condemna- tion. If the taking is by the CITY, Florida Statutes governing eminent domain will apply. XXXIV. WAIVER OF REDEMPTION 34.1 Waiver of Redemption - The LESSEE, for itself and for all persons by, claiming through or under it, hereby expressly waives (to the extent permitted by law) any and all rights which are or may be conferred upon the LESSEE 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 not be deemed to con- stitute a waiver by LESSEE of any defenses or rights to appeal. XXXV. EXHIBITS 35.1 Exhibits - All Exhibits attached hereto are hereby incorporated by reference and made a part hereof. In the event of a conflict between the language contained in any of the Exhi- bits and this Lease, the terms of this Lease shall govern. XXXVI. ENTIRE LEASE 36.1 Entire Lease; Amendments - This Lease, the Exhibits attached hereto including the Request for Proposals ("Request for Proposals") issued by the CITY on November 14, 1988, attached - 61 - • hereto and made a part hereof as Exhibit "F", and the Proposal contain the entire agreement between the parties and shall not be modified in any manner except by an instrument in writing exe- cuted by the parties or their respective successors or assigns in interest. This Lease shall supersede and annul any and all leases, management or rental agreements heretofore made or issued for all or any part of the Marina Site between CITY and LESSEE, and any such leases, management or rental agreements shall hereafter be void and of no effect. This Lease has been drafted by both parties and may not be more strictly construed against either. IN WITNESS WHEREOF, the parties, by and through their duly authorized representatives, have executed this Lease in their respective names, all as of the day and year first above written. ATTEST: Corporate Secretary ATTEST: Clara Keyes Hardin Corporate Secretary WITNESSES: LESSEE: (A Joint Venture) DINNER KEY BOATYARD JOINT VENTURE BY: CAL-FLORIDA MARINE INDUSTRIES, INC. Sherman Whitmore, President and DINNER KEY BOATYARD LIMITED PARTNERSHIP, a Florida limited part- nership BY: DINNER KEY BOATYARD MANAGEMENT COMPANY, a Florida corporation, General partner - 62 - Dr. Marvin Dunn, President • tM CITY OF MIAMI, A MUNICIPAL ATTEST: CORPORATION OF THE STATE OF FLORIDA MATTY HIRAI CESAR H. ODIO CITY Clerk City Manager Date Executed: APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM REQUIREMENTS: AND CORRECTNESS: Segundo Perez JORGE L. FERNANDEZ Insurance Manager City Attorney - 63 - 89-9 V STATE OF FLORIDA ) ) SS: COUNTY OF DADE } BEFORE ME personally appeared Sherman Whitmore, President of Cal -Florida Marine Industries, a California corporation and Dr. Marvin Dunn, President of Dinner Key Boatyard Management Company, a Florida corporation who is the sole (corporate) general partner for the Dinner Key Boat Yard Limited Partnership, such corpora- tions being known collectively as Dinner Key Boatyard Joint Venture, a Joint Venture under Florida Law, and acknowledges the foregoing for the purposes herein described this day of 1989. My Commission Expires: STATE OF FLORIDA NOTARY PUBLIC, State of Florida at Large ) SS: COUNTY OF DADE ) BEFORE ME personally appeared Cesar H. Odio, City Manager for the City of Miami, Florida, and acknowledges the foregoing for the purposes herein described this day of , 1989. NOTARY PUBLIC, State of My Commission Expires: Florida at Large LAD/DnrKyLse - 64 - CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Honorable Mayor and Members of the City Commission Cesar H. Od City Manage RECONKENDATION: DATE �t r fLE SUBJECT OC'1 itiot988A9uthorizing Execution of Lease Agreement with Dinner REFERENCES Key Boatyard J.V. ENCLOSURES For October 26, 1989 City Commission Meeting It is respectfully recommended that the City Commission adopt the attached Resolution, with attachments, authorizing the City Manager to execute a negotiated lease agreement, in substantially the form attached, between the City of Miami and Dinner Key Boatyard, J.V., for the planning and design, construction, leasing and management of a full service boat yard, marina and ancillary marine -related retail uses on approximately 10.88 acres of City -owned waterfront property located at 2640 South Bayshore Drive, Miami, Florida. BACKGROUND: The Department of Development has implemented the unified development process for this project and has assisted the City Manager in the lease agreement negotiations. On June 22, 1989, the City of Miami Commission, by Resolution No. 89-576, authorized the City Manager to negotiate a lease agreement with Dinner Key Boatyard, J.V. for the planning and design, construction, leasing and management of a full -service boat yard, marina and ancillary marine -related retail uses on City -owned waterfront property at Dinner Key. The lease agreement attached as part of this Resolution was negotiated in good faith by the City of Miami administration and representatives of Dinner Key Boatyard, J.V. It incorporates the following provisions, as directed by the City Commission: -- February 1, 1990 date of property possession and rent commencement. (Merrill Stevens remaining in possession until March 31, 1990.) -- A lease term of twenty-five (25) years commencing on February 1, 1990. -- A minimum annual guaranteed rental payment of four hundred and five thousand dollars ($405,000) or a percentage W of revenues, whichever is greater. Honorable Mayor and Members of the City Commission Page Two -- A four million nine hundred twenty-nine thousand four hundred dollar ($4,929,400) investment in capital improvements and equipment, fifty percent (50%) to be made within twenty-four (24) months of the date of possession and all improvements to be substantially completed within forty-eight (48) months. -- Construction of all project elements and amenities as reflected in the proposer's proposal submission for the unified development of this property incorporated as a part of the Agreement. -- Construction of improvements to commence within ninety (90) days of the date of possession and in accordance with a construction schedule made part of the Agreement as Exhibit B. -- Construction of improvements to be in accordance with plans and specifications prepared by licensed professionals, to be approved by the City Manager, prior to the commencement of such construction. -- Compliance with the City's minority procurement ordinance and other relevant laws. Pursuant to Resolution 89-576, the negotiated lease agreement with Dinner Key Boatyard, J.Y. is hereby presented for your review, consideration, and approval prior to its execution. Attachments: Proposed Resolution Draft Lease Agreement R4-960