Loading...
HomeMy WebLinkAboutR-79-010155 RESOLUTION NO. 7 9- 1 0 1 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDATORY AGREEMENT (AMEND- MENT NO. 2), AMENDING AN ORIGINAL LEASE AGREE- MENT WITH RESTAURANT ASSOCIATES INDUSTRIES, INC.; SAID AGREEMENT HAVING BEEN ASSIGNED AUGUST 1, 1970 TO ST. CLAIRS OF NORTH MIAMI, INC., WHOSE FIRM NAME WAS SUBSEQUENTLY CHANGED TO RESTAURANT ASSOCIATES INDUSTRIES OF FLORIDA, INC.; SAID ORIGINAL AGREEMENT PROVIDING FOR THE LEASE OF THE RESTAURANT FACILITY AT MIAMARINA. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to execute an Amendatory Areement (Amendment No. 2), amending an original Lease Agreement with Restaurant Associates Industries, Inc.; said Agreement having been assigned August 1, 1970 to St. Clairs of North Miami, Inc., whose firm name was subsequently changed to Restaurant Associates Industries of Florida, Inc.; said original agreement providing for the lease of the Restaurant Facility at Miamarina. PASSED AND ADOPTED this 22 day of FEBRUARY 1979. "SUPPORTIVE DOCUMENTS FOLLOW" ATTEST: CZ-e_ RAL H G GIE, CITY CLERK PREPARED AND APPROVED BY: TERRY V. PECY ASSISTANT CITY ATTORNEY MAURICE A. FERRE. MAYOR APP'! D AS TO FORM AND CORRECTNESS: GEORG. F. KNOX, JR., TTORNEY "DOCUMENT/ NDEX ITEM NO. CITY COMMISSION MEETING OF FEB3 2 iu,v asaunoN No.7 9 - 1 0 .fl 58 ...TV OF !.1 A7.11, `a i �:i•��F!CC ;,IEMOr ANDUM Joseph R. Grassie City Manger17((,;f / ROM: Vincent E. Grimm, J Assistant City Manager DATE February 16, 1979 ,;,F)JF:cr Suggested Amendment to Restaurant Associates' Lease--Miamarina HENCEd. 1 On January 18, 1979, the City Commission by Motion #79-11 instructed you to formalize negotiations with Restaurant Associates on the basis of material previously submitted to the City Commission in writing, and to encompass the following three items: 1. That it would increase the level of percentage that the City is getting; 2. Requiring that Restaurant Associates expend $350,000 on improvements within one year and $1,200,000 over the total length of the contract; 3. Further requiring that Restaurant Associates immediately pay $175,000 in back rent and become current, and that this amount be put in a reserve account from which the City can draw for necessary improvements/maintenance of the facility, provided however, that the City does not accept, by so doing, any legal responsibility for such maintenance, and that whatever amounts are expended from this reserve account for repairs/maintenance of the facility shall be repaid to the City of Miami by Restaur- ant Associates over a 5-year period at six percent (6) simple interest. There were several different exhibits prepared by Restaurant Asso- ciates, and I have to assume that the Commission has received copies of the suggested changes as proposed by Restaurant Associates. The attached modifications are the end result of the negotiations between the Manager's Office and Restaurant Associates. In summary, the revised agreement does the following. Section 1 revises the number of non-exclusive parking spaces and reduces the total number of spaces available to the restaurant by 67. This provision further eliminates any conflict between the restaurant parking and Off -Street Parking Authority's metered spaces This amendment also provides that in the event future parking spaces become available, the City will do its best to provide additional parking for the restaurant. "SUPPORTIVE - DOCUMENTS FOLLOW" Page 1 of 3 '79-1nt 58 Joseph R. Grassie City Manriier i iROM: Vincent E. Grimm, J Assistant City Manager r_:z•oi-F!C.,*.: ;-, _:NIOR NDUM DATE February 16, 1979 ,;ni:c- Suggested Amendment to Restaurant Associates' Lease--Miamarina �.rNENCL� :.•4_Lo.IJf—U . 1 On January 18, 1979, the City Commission by Motion #79-11 instructed you to formalize negotiations with Restaurant Associates on the basis of material previously submitted to the City Commission in writing, and to encompass the following three items: 1. That it would increase the level of percentage that the City is getting; 2. Requiring that Restaurant Associates expend $350,000 on improvements within one year and $1,200,000 over the total length of the contract; 3. Further requiring that Restaurant Associates immedLately pay $175,000 in back rent and become current, and that this amount be put in a reserve account from which the City can draw for necessary improvements/maintenance of the facility, provided however, that the City does not accept, by so doing, any legal responsibility for such maintenance, and that whatever amounts are expended from this reserve account for repairs/maintenance of the facility shall be repaid to the City of Miami by Restaur- ant Associates over a 5-year period at six percent (6) simple interest. There were several different exhibits prepared by Restaurant Asso- ciates, and I have to assume that the Commission has received copies of the suggested changes as proposed by Restaurant Associates. The attached modifications are the end result of the negotiations between the Manager's Office and Restaurant Associates. In summary, the revised agreement does the following. Section 1 revises the number of non-exclusive parking spaces and reduces the total number of spaces available to the restaurant by 67. This provision further eliminates any conflict between the restaurant parking and Off -Street Parking Authority's metered spaces. This amendment also provides that in the event future parking spaces become available, the City will do its best to provide additional parking for the restaurant. "SUPPORTIVE DOCUMENTS FOLLOW" Page 1 of 3 -.79-1"1 Joseph R. Grassie City Manager February 16, 1979. Section 2 clarifies the commencement date of the original lease as November 5, 1970. Section 3 allows the lessee to sublease a small portion of the down- stairs, not to exceed 1,000 square feet, for gift shops or boutiques and that gross sales from such use will be included as part of the gross sales of the restaurant concession. Section 4 deletes the previous provision in the old agreement on operating hours and makes it an all-inclusive day. Section 5 revises the minimum rents as follows: $75,000 for the next five years; $85,000 for the second five; and $100,000 for the remaining years of the lease. Paragraph B under Section 5 makes provisions for the payment of outstanding rents. Paragraph C under Section 5 establishes a percentage rent in addition to the minimum rents. Paragraph D establishes minimum rent payments in the event that the revised lease should produce lesser revenues than the original lease would have. The payments of these lesser rents are established by paragraphs 1, 2, 3, 5 and 6 under Paragraph D of Section 5. Section 6 of the revised lease deletes Article 10 of the original lease and substitutes: Subparagraph A that the lessee will accept the structure, equipment and the site in their existing conditions. Subparagraph B states the lessee will spend a minimum of $1,225,000 by November 4, 1989 and that further, $350,000 of this amount will be spent in the first year, and that this $350,000 expenditure will go for major improvements and not for expendable items. Subparagraph C states the City will deposit $175,000 received from back rent in a Trust and Agency account. The City will grant to the lessee the right to draw from this $175,000 for improvements to be done within one year of the amended lease.. The subparagraph further stipulates that the lessee shall repay to the City this $175,000 together with interest in five equal consecutive annual installments of $39,200; the first payment to take place immediately following the expenditure of the $175,000 or year, whichever comes first. Subparagraph D indicates the work will be done according to City standards. Section 7 revises Article 12 of the original agreement, stating that when the Manager's approval is necessary, such approval will not be unreasonably withheld or delayed. Section 8 amends Article 13 of the original lease stating that the City will use its best efforts to provide for installation of infor- mational and directional signs on City property. Page 2 of 3 Joseph R. Grassie City Manager February 16, 1979 Section 10 of the new agreement provides for a minimum of 1% of gross sales to be spent annually for advertising. Section 11 of the amended lease adds a new section which gives the City the right to lease the adjoining marina to a private operator should it choose to do so. The above summarizes the amendments, but for further clarity a copy of the total agreement is attached. "SUPP P,T1VE • DOCU!ViENTS FOLLOW„ Page 3 of 3 79-101 • THIS AGREEMENT by and between THE CITY OF MIAMI, a municipal corporation in the State of Florida (the "City"), and MIAMARINA ASSOCIATES, LTD., a Florida limited partnership ("Lessee") dated , 1979 (the "1979 Amendment"). WITNESSETH WHEREAS, the economy of the City is of such a tourist and recreation orientation that the City has expended the proceeds of general revenue bonds for the construction of marinas and associated restaurant facilities for the public purposes they serve, including, more particularly, the Miamarina, and WHEREAS, the City, in determining that public welfare and purposes can better be served by leasing the restaurant portion of the Miamarina to a restaurant organization with appropriate operational controls rather than by operating such facility through the City Manager, on May 1, 1970 entered into an agreement of lease of premises at the Miamarina (the "Original Lease") with Restaurant Associates Industries, Inc. ("RAI"), and WHEREAS, the Original Lease was assigned by RAI as of August 1, 1970 to St. Clairs of North Miami, Inc., the name of which was changed to Restaurant Associates Industries of Florida, Inc., and WHEREAS, the Original Lease, as amended (the "Lease") was thereafter assigned as of January 2, 1973 to Lessee, and WHEREAS, circumstances since the execution of the Original Lease have changed so that the parties desire to hereby amend the Lease "SUPPORTIVE DOCUMENTS FOLLOW" 79- 1 01 -2- so as more fully to insure that the public purpose will be served. NOW, THEREFORE, the parties agree to amend the Lease as follows: 1. The last two paragraphs of Article 1 of the Original Lease at Page 4 thereof are hereby deleted and the following substituted in their places: "The Lessee shall be granted the non-exclusive right to use the areas designated in Exhibit C-1 revised January 1979, attached hereto and made a part hereof as set forth in full herein for parking. These areas are described on said Exhibit as Parking Areas A, B, C and D and the dimensions of said areas are set forth in said Exhibit C-1 revised January 1979. "Exhibits A-1, A-2 and A-3 are schematic drawings of the restaurant structure. Exhibit B describes the Miamarina general site and parking for the entire complex known as Miamarina. Exhibit C-1 revised January 1979 describes the Miamarina restaurant site and parking reserved for restaurant use. The City will use its best efforts to provide, obtain and cause adequate parking to be made available to the Lessee." 2. The last sentence is hereby deleted from Article 2 of the Original Lease and the following substituted in its place: "The parties agree that the Commencement Date is November 5, 1970." 3. The following sentence shall be added to the first paragraph of Article 4 of the Original Lease: -3- "The City will not withhold its consent to the subletting or sublicensing by the Lessee of a relatively small amount of ground floor space not in excess of 1,000 square feet, for gift shop or boutique purposes. In such event, the rent or licensing fee or other amount received by Lessee from such gift shop or boutique, rather than the gross sales of such gift shop or boutique, shall be included in "Gross Sales" as such term is hereinafter defined. 4. The fourth paragraph of Article 4 of the Original Lease is amended by striking out of the first sentence the words "morning commencing no later than 6 a.m. and closing not earlier than the con- clusion of the dinner hour" and substituting in their place the word "day". 5. Article 5 of the Original Lease is hereby deleted therefrom and the following substituted in its place: "5. Rent: Lessee shall pay to the City the minimum rent and percentage rent as follows: "A. Minimum Rent. For each of the first five years of the term of this Lease For each of the next three years of the term of this Lease For each of the next five years of the term of this Lease For each of the next five years of the term of this Lease For each of the remaining years of the term of this Lease "SUPPORTIVE DOCUMENTS FOLLOW" $ 75,000 $100,000 $ 75,000 $ 85,000 $100,000 • 79-101 -4- "B. The minimum rent shall be paid annually in advance beginning November 5, 1970 for each of the first five years of the term of this Lease. The parties acknowledge that an aggregate of $125,000 of the minimum rent (together with the sales tax thereon) has been paid for the following three lease years in the period November 5, 1975 through November 4, 1978. The remaining minimum rent in the aggregate of $175,000 for such three lease years shall be paid promptly after the execution and delivery of the 1979 Amendment. The minimum rent for the lease year commencing November 5, 1978 shall be paid promptly upon the execution and delivery of the 1979 Amendment. The minimum rent for each of the lease years commencing November 5, 1979 shall be paid annually in advance. "C. Percentage Rent. Commencing with the November 5, 1978 in addition to the lease year and for each lease year thereafter, the Lessee shall pay to- minimum rent t-he- i- �s percentage rent for theCitylease year an amount equal to: (i) 5% of the excess of the Gross Sales in such lease year over $2'2 million up to and including $3'2 million, plus (ii) 6% of the excess of Gross Sales in such lease year over $3'-2 million up to and including $4!,i million, plus (iii) 7% of the excess of the Gross Sales in such lease year over $41/2 million. Percentage rent shall be computed annually and paid within 60 days following the end of each lease year simultaneously with the delivery by Lessee to the City of its annual report of Gross Sales (the "Annual Report"). "D. Supplementary Minimum Rent. (1) In the event the payments of minimum and percentage rent for the first 21 years of the term of this Lease shall aggregate -5- less than $2,145,000, the Lessee shall, simultaneously with the delivery by the Lessee to the City of its Annual Report for the 21st lease year, pay to the City as supplementary minimum rental for such 21st lease year an amount equal to one -fifth of such difference. The aggregate of minimum rent, percentage rent and supplementary minimum rent is hereinafter referred to as "Total Rent." (2) In the event the payments of Total Rent paid to the City for the first 22 years of this agreement shall aggregate less than $2,265,000, the Lessee shall, simultaneously with the delivery by the Lessee to the City of its Annual Report for the 22nd lease year, pay to the City as supplementary minimum rent for such 22nd lease year, an amount equal to one-fourth of such difference. (3) In the event the payments of Total Rent paid to the City for the first 23 years of this agreement shall aggregate less than $2,385,000, the Lessee shall, simultaneously with the delivery by the Lessee to the City of its Annual Report for the 23rd lease year, pay to the City as supplementary minimum rent for such 23rd lease year, an amount equal to one-third of such .difference. (4) In the event the payment of Total Rent paid to the City for the first 24 years of this agreement shall aggregate less than $2,505,000, the Lessee shall, simultaneously with the delivery by the Lessee to the City of its Annual Report for the 24th lease year, pay to the City as supplementary minimum rent for such 24th lease year, an amount equal to one-half of such difference. (5) In the event the payments of Total Rent paid to the City for the first 250rs,uf`Jt,k1 g-,agrpoment shall aggregate less 79-101 -6- than $2,625,000, the Lessee shall, simultaneously with the delivery by the Lessee to the City of its Annual Report for the 25th lease year, pay the City as supplementary minimum rent for such 25th lease year, such difference. (6) If at the end of the 22nd, 23rd, 24th or 25th lease years, the Total Rent paid to the City from the Commencement Date through the end of such lease years shall exceed $2,265,000 or $2,385,000 or $2,505,000 or $2,625,000, respectively, the amount of percentage rent due for such lease year shall be reduced by the lower of (i) such excess or (ii) the aggregate of the payments of supplementary minimum rent previously paid under this paragraph D. "E. For the 25th lease year an amount of incremental rent shall be paid to the City equal to 6% of the excess, if any, of the aggregate for every lease year of the cumulative Minimum Rents since the commencement of the first lease year as set forth in Article 5 of the Original Lease (prior to the 1979 Amendment) over the aggregate of cumulative Total Rent paid for such periods since the commencement of the first lease year, such incremental amount to be reduced to the extent of the excess,' if any, of the aggregate (less the amount of reduction applied under subparagraph D(6) hereof) of Total Rent paid over $2,625,000 for the 25 lease years hereof." 6. Article 10 of the Original Lease is hereby deleted and the following substituted in its place: "A. Lessee agrees to accept the structure and all of its existing equipment and the site, as defined by the Exhibits, in their existing condition. "B. In the 11-year period commencing with the date of -7- execution of the 1979 Amendment, the Lessee will spend a minimum of an aggregate amount of $1,225,000 in fulfilling the Lessee's -- maintenance (excluding cleaning), repair and replacement obligations under this Lease and in making alterations, improvements and capital expenditures. $725,000 of such amount shall be spent by November 4, 1984 and $500,000 by November 4, 1989. In the one-year period commencing with the date of the execution of the 1979 Amendment, the Lessee will spend $350,000 of the $725,000 referred to above on those improvements which are part of major physical improvements, remodeling or refurbishing of the building, either interior or exterior, it not being the intent that the purchase of expendable items, such as glassware, silverware and tablecloths, would be considered as major permanent improvements, and it being further intended that maintenance - type work Kill not be considered as part of such $350,000 for expenditures and only those items which might be considered as having a relatively long life, such as replacement of motors, air conditioning units, etc., would be allowable expenditures included in such $350,000. "C. The City agrees to deposit into a trust/agency account the $175,000 paid under Article 5 B of the Lease out of which the City will advance to the Lessee such amounts, aggregating $175,000, as the Lessee may from time to time request, promptly upon the making of such request in writing accompanied by appropriate evidence that the Lessee has incurred expenditures in such amounts in fulfilling its obligations under Article 10.C(1) hereof. The Lessee shall repay such amounts to the City, together with interest, in five equal annual consecutive installments of $39,200, the first such installment to be made immediately following the last of the advances "SUPPORTIVE DOCUMENTS FOLLOW" aggregating $175,000. 79-101 -8- Total expenditure of the $175,000 shall take place in one year from the date of the 1979 Amendment. "D. The Lessee agrees that all work under this Article will be performed in a workmanlike manner, and that records for expenditures for all the work shall be maintained and shall be made available to the City Manager or his designee for his inspection and audit. The Lessee agrees that all necessary licenses and permits to accomplish the work under this provision shall be obtained by the Lessee. The Lessee further agrees that all construction performed for the Lessee under this Article on the premises shall be covered by 100°; bond for labor and material. This bond shall be approved by the City Manager and shall be in conformity with Chapter 255 of the Florida Statutes." 7. Article 12 of the Original Lease is amended by adding after the words"City Manager of the City" in the first sentence the words "which approval shall not be unreasonably withheld or delayed." 8. The following sentence shall be added to Article 13 of the Original Lease: "The City will use its best efforts to provide for the installation of directional and informational signs on City property." 9. Article 14 of the Original Lease is amended by the addition of the words "cause Metro Dade to" after the words "the City shall" in each of the first two sentences of such paragraph. 10. Article 23 of the Original Lease is amended by striking out the words "initial three" on the second line thereof and substituting for the amount "5100,000" wherever same appears in such Article the words "an amount equal to 1% of Gross Sales." -9- 11. The following new Article 43 shall be added to the Lease: "43. In the event the City shall determine it shall better serve the public interest, the City may lease the adjoining marina facilities to a private operator rather than to operate such facilities itself." THE CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida By (Seal) City Manager Attest: City CTerk MIAMARINA ASSOCIATES, LTD., a Florida limited partnership By (Seal) Vice President • Attest: Approved as to form and correctness. City Attorney Assistant Secretary 79-101