HomeMy WebLinkAboutExhibit 1- SUB0,P ea -k
FIRST AMENDMENT TO LEASE AGREEMENT
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BETWEEN CITY OF MIAMI
RICKENBACKER MARINA., INC.
VA -Y
TABLE OF CONTENTS
1. Incorporation of Recitals............................................................................................. 3
2. Definitions................................................................................................................... 3
3. Term............................................................................................................................ 4
4. Use...............................................................................................................................4
5. Improvements By Lessee............................................................................................. 5
6. Ownership of Improvements....................................................................................... 6
7. Pledge of Leasehold Interest........................................................................................ 6
8. Rent............................................................................................................................. 7
9. Rent Deposit................................................................................................................ 9
10. Gross Revenues......................................................................................................... 10
11, Records, Accounts and Statements ............................................................................ 11
12. State of Florida.......................................................................................................... 12
13. Property Taxes........................................................................................................... 13
14. Manner of Operation................................................................................................. 13
15. Maintenance and Repair............................................................................................ 14
16. Destruction...............................................................................................................15
17. Insurance.................................................................................................................... 16
18. Assignment and subletting of premises ................... . .................................21
19. Notices......................................................................................................................21
20. Safety.........................................................................................................................22
21. Americans With Disabilities Act............................................................................... 23
22. Force Majeure............................................................................................................ 23
Exhibit "A" - _Property -
Exhibit "B" Capital Improvements and Aesthetic Improvements
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TRIS FIRST AMENDMENT to the Lease ("Amendment") is made and entered into
between the CITY OF MIAMI, a municipal corporation of the State of Florida ("Lessor" or
"City"), and RICK.ENBACKER MARINA, INC., a Florida Corporation, ("Rickenbacker").
RECITALS
A. The Lessor and Marina Biscayne, Inc. ("Original Lessee") entered into that
certain lease agreement dated July 8, 1977, as amended by that certain Memorandum of
Understanding between the parties (the "Lease"), pursuant to which Original Lessee leased
certain City -owned real property and bay bottom for the development and operation of, among
other things, a full service marina, described in Exhibit A attached hereto and made a part hereof,
located at 3301 Rickenbacker Causeway, City of Miami, Dade County, Florida (the "Premises");
B. Original Lessee assigned the Lease to Michael D. Brandon as Trustee tinder an
unrecorded trust for Marina Biscayne, Ltd.. ("Successor Lessee"), pursuant to an Assignment of
Lease dated January 31, 1983;
C. With Lessor's consent, Successor Lessee assigned and transferred all its interest in
the Lease to Rickenbacker Marina, Inc. ("Rickenbacker" or "Lessee") pursuant to an Assigmnent
of Lease dated June 25, 1986.
D. Rickenbacker requested Lessor to extend the term of the Lease in order to
amortize the cost of certain capital improvements that Rickenbacker plans to perform on the
Premises, which are more specifically described in Exhibit "B" hereto.
E. The term of the Lease, together with any options to renew, was to expire on
January 7, 2009 (the "Original Expiration Date").
F. Pursuant to Resolution No. 08-0704, adopted December 11, 2008, the City
Commission of the City of Miami (the "City Commission"), by a four-fifths (4/5ths) affirmative
vote, in accordance with Section 29-B of the Charter of the City of Miami, authorized the
extension of the term of the Lease between the City and Rickenbacker, subject to conditions
providing for City Commission approval of the terms of such extension on or before March 12,
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2009, and providing for automatic rescission of the authority granted should the City
Commission fail to approve such terms on or before March 12, 2009.
G. The Lessor and Rickenbacker desire to enter into this Amendment for the purpose
of extending the term of the Lease, and for the other purposes as set forth herein.
H. The Lessor and Rickenbacker acknowledge that the extension of the term of the
Lease granted herein is specifically conditioned upon Rickenbacker contributing no less than $2
million towards the construction of a parking facility to serve the users of the Premises and other
areas in the vicinity of the Premises, if the City builds, or causes to be built such parking facility.
Rickenbacker's failure to make such contribution shall be deemed a default of the Lease, and the
City Attorney shall proceed with any legal actions authorized by the Lease.
NOW, THEREFORE, in consideration of the foregoing and the conditions, covenants and
agreements hereinafter set forth and in consideration of other valuable consideration the parties
hereto agree to amend the Lease as follows:
1. Incorporation of Recitals
The recitals and findings set forth above are adopted by reference thereto and
incorporated herein as if fully set forth in this Amendment.
2. Definitions
A new section titled "Definitions" is added immediately prior to Section 1 of the Lease to
define certain terms and phrases in the Lease as follows:
Section 1. Definitions:
A. "Capital hnprovements" means the improvements described in Exhibit "B" to be
constructed by Rickenbacker in whole or in part on the Property, as the same may be modified,
relocated, reduced or expanded, by mutual agreement, and as provided in this Lease, from time to
time.
B. "Effective Date" means January 8, 2009.
C. "Governmental Authorities" means all federal, state and municipal governments,
agencies, departments, commissions, boards and officials having jurisdiction over the Property,
the Improvements or the construction thereof. .
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D. "Gross Revenues" shall have the same meaning as gross receipts and shall include
all revenue actually received by Rickenbacker and to the extent provided below, by
Rickenbacker's subtenants derived directly from business operations located on or initiated at the
Property as further described in Section 10 below.
E. "Improvements" means all improvements, including Rickenbacker's Capital
Improvements, buildings, structures and fixtures now or hereafter situated, placed, constructed or
installed on the Land, including but not limited to, all attached fixtures, equipment, apparatus,
machinery, fittings and appliances, and any additions to, substitutions for, changes in or
replacements of, the whole or any part thereof. All title to Improvements shall immediately vest
with the City.
F. "Land" shall have the same meaning as "Premises" for Area 2 of approximately
21.975 acres of real property in the City of Miami, described in Exhibit "A".
G. "Property" shall mean the Land and the Improvements.
H. "State Approval" shall mean the State of Florida Board of Trustees of the Internal
Improvement Trust Fund (the "State Approval").
3. Term
Section 2 of the Lease is amended to read as follows:
2. Term.
The term of this Lease shall be as follows: 1) the use of wet storage facilities including
moorings, restaurant and tiki deck, restrooms/showers, office/store and fuel dock facilities, and
other ancillary facilities and services of the Property, shall be extended for a term of seven and
one-half, (7%2) years from January 8, 2009 through July 7, 2016, subject to the teens and
conditions set forth herein; and 2) the use of dry storage facilities of the Property shall be
extended for a term of four and one-half (4'/z) years from January 8, 2009 through July 7, 2013,
with three 1 -year options to renew the Lease, subject to approval by the City Manager, at his sole
discretion, following ninety (90) days prior written notice from Rickenbacker and subject to the
other terms and conditions set forth herein, (collectively, the "Term").
4. Use
Section 3 of the Lease is amended to read as follows:
3. Use.
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The Property is leased to Rickenbacker for the sole purpose of operating a -full service
marina facility providing for approximately 190 -wet storage facilities including moorings, a
restaurant and tiki deck, restrooms/showers, office/store and fuel dock facility, approximately
298 dry storage facilities, boat repair, and other ancillary services for the use of and by the
general public. These services shall include:
1. Storage of boats, wet, dry and trailered
2. General repairs and servicing of boats
3. Sale of bait, tackle, and ice
4. Sale of marine hardware and supplies
5. Launching services of all kinds
6. Sale of new and used boats and motors
7. Sale of nautical gifts and sundries
8. Sale and consumption of beverages, food and beer
9. Sale of fuel
10. All other reasonable ancillary services
Rickenbacker shall not use the Property for any other purposes without the prior written
approval of the City Manager, which may be withheld or conditioned in his/her sole discretion.
As consideration for the extension of the Original Expiration Date, Ricicenbacker has
agreed to make certain Capital Improvements on the Property, which is wholly owned by Lessor.
These Capital Improvements are in addition to any Capital Improvements Rickenbacker was to
complete prior to the Original Expiration Date.
5. Improvements By Lessee
Section 5 of the Lease is amended to read as follows:
5. Improvements by Rickenbacker
A. Improvements. Conu-rsencing no later than April 1, 2009, Rickenbacker must
perform the required Capital Improvements described in Exhibit "B". These Capital
Improvements must be completed on or before March 31, 2011, If Rickenbacker fails to
complete the required Capital Improvements by said date, Rickenbacker agrees to pay Lessor the
total cost to complete said Capital Improvements, as Lessor determines the costs to be.
B. Performance Bond. As assurance for the faithful and timely performance and
construction of the Rickenbacker's Capital Improvements, Rickenbacker shall, -prior to
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commencement of any construction in excess of $200,000, furnish Lessor a bond (or such
alternate form of security, such as a letter of credit, as may be approved by Lessor) in the amount
of 100% of the cost of each Capital Improvement. The surety on said bond (or issuer of any
alternate form of security), shall be subject to the approval of the City Manager, which approval
shall not be unreasonably withheld or delayed. The bond (or alternate form of security) shall be
released by Lessor upon completion of each of Rickenbacker's Capital Improvements as
evidenced by the issuance of Filial Release of Liens as issued by Rickenbacker's contractor or
subcontractor for work completed.
6. Ownership of Improvements
Section 7 of the Lease is amended to read as follows;
7. Ownership of Improvements_ As of the Effective Date of this Amendment, title to
all existing Improvements shall immediately become the property of Lessor. Title to all future
Improvements, including the required Capital Improvements described in Exhibit "B" once
completed, shall immediately become the property of Lessor. Title to all supplies, furniture,
inventories, if not attached to the Property, shall remain the personal property of Rickenbacker
and Rickenbacker shall have legal title thereto upon the expiration or early termination of this
Lease. Rickenbacker shall have the right to remove such items from the Property provided that it
repairs any damage caused by such removal. Should Rickenbacker fail to repair any damage
caused to the Property within ten (10) days after receipt of written notice fiom the Lessor
directing the required repairs, the Lessor shall cause the Property to be repaired at
Rickenbacker's sole cost and expense. Rickenbacker shall pay the Lessor the full cost of such
repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs.
At the Lessor's option, the Lessor may require Rickenbacker to remove any
Improvements. Should Rickenbacker fail to remove said Improvements and other items of
personalty on or before the expiration or early termination date of the Lease, said property shall
be deemed abandoned and thereupon shall become the sole personal property of the Lessor. The
Lessor, at its sole discretion and without liability, may remove and/or dispose of same as the
Lessor sees fit, all at Rickenbacker's sole cost and expense.
7. Pledge of Leasehold Interest
Section 8 of the Lease is deleted in its entirety.
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8. Rent
Section 9 of the Lease is amended to read as follows:
9. Amount of Rent. Commencing on the Effective Date, and continuing throughout the
term of the Lease, Rickenbacker covenants that it shall pay to the Lessor as Rent for the Property,
the greater of the Minimum Annual Rent or Percentage Rent as follows:
1. Minimum Annual Rent. Minimum Annual Rent shall be the sum of Three
Hundred Sixty Thousand Dollars ($360,000.00) plus Florida State Use tax, if
applicable. Rickenbacker shall pay one twelfth of the Minimum Annual Rent to
Lessor each month. The Minimum Annual Rent shall be paid in advance on the
first day of each and every calendar month as of the Effective Date.
2. PercentageRent. Percentage Rent shall be a sum e4ua1 to a variable
percentage of Rickenbacker's Gross Revenues (as defined herein) made from or
upon the Property during each month which exceeds the Minimum Annual Rent
for that same time period. Percentage Rent shall be computed on a monthly basis
("Percentage Rent Period") beginning on the Effective Date and continuing
throughout the Term.
(a) Percentage Rent shall be calculated as follows: As of the Effective
Date and continuing throughout the Term, Percentage Rent shall be as
follows:
15% of Gross Revenues for wet storage facilities including any
moorings.
12% of Gross Revenues for dry storage facilities, to be increased
one percent (1%) per year after initial four and one-half (4'/Z) year
term.
40% of any revenues collected for subleasing, management
agreements, licenses, joint ventures and any other agreements,
whether written or oral, between Rickenbacker and any third party
for a third party's operation of activity on the Property.
5% of Gross Revenues for any other related services performed on
the Property.
5% of Gross Revenues for fuel dock facility.
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(b) Percentage Rent Due. Percentage Rent shall be payable in monthly
installments, in arrears, on the thirtieth (30th) day of each month during the Term
(e.g., an installment due on February 28th shall be for the Percentage Rent for the
preceding January). If Percentage Rent is due for the months of January 2009 or
February 2009, that Percentage Rate shall be due on or before March 30, 2009.
Commencing on March 30, 2009 and following the thirtieth (30th) day of each
month thereafter during the Term, Rickenbacker shall deliver to Lessor. a
statement setting forth such Gross Revenues during the Percentage Rent Period,
and Rickenbacker shall pay to Lessor the amount, if any, by which applicable
percentage of the Gross Revenues for such month exceeds the monthly installment
of Minimum Annual Rent for the same month. Each statement shall be signed
and certified to be complete and correct by an officer of Rickenbacker. Such
statement shall show Gross Revenues and an itemization of any exclusions or
deductions therefrom for such month, as well as year-to-date amounts for the
current year.
Within ninety (90) days following the expiration of Rickenbacker's fiscal year,
Rickenbacker shall deliver to Lessor annual audited financial statements of the Property for the
preceding calendar year prepared by an independent Certified Public Accountant. In the event
Rickenbacker has underpaid Percentage Rent, Rickenbacker shall pay to Lessor within said
ninety (90) day period any additional rent that is due. In the event Rickenbacker has overpaid
Percentage Rent, such overpayment shall be reimbursed to Rickenbacker in the form of a credit
to Rickenbaeker for the next accruing monthly installments of Minimum Annual Remit due
hereunder.
If Rickenbacker shall fail to deliver such annual audited statement to Lessor within said
ninety (90) day period, Lessor shall have the right thereafter to audit or cause an audit to be
performed, including without limitation an audit of all records required by Section 11B herein, as
may be necessary to certify the amount of Gross Revenues for such rental year, and Rickenbacker
shall pay to Lessor the cost of the audit within teal (10) days of receipt from Lessor of the cost
thereof. Any underpayment or overpayment of Percentage Rent shall be. treated as provided
above.
B. Payment of Rent. All Rent and statements of Gross Revenues shall be paid and
sent to Lessor at the following address, or such other address as may be designated by Lessor in
writing:
City of Miami
Department of Finance
Attention: Treasuiy/Receipts
444 SW 2 Avenue, 6"' floor
Miami, FL 33130
C. Late Fees. In the event Rickenbacker fails to pay Rent within five (5) days after it
becomes due, Rickenbacker shall pay a late fee equal to five percent (5%) of the unpaid amounts
inclusive of any accrued late fees for each thirty (30) day period or fiaction thereof in which
payment remains unpaid. Acceptance of such late fee by Lessor shall, in no event, constitute a
waiver by Lessor of any default by Rickenbacker under this Lease. The late fee shall be deemed
additional rent and the rights to require it shall be in addition to all of Lessor's rights and
remedies hereunder or at law and shall not be construed as liquidated damages or as limiting
Lessor's remedies in any manner.
9. Rent Deposit
Section 10 of the Lease is amended to read as follows:
10. Security Deposit
In addition to the Rent as described in Section 9, Rickenbacker shall deposit with the
Lessor Ninety Thousand and no/100 Dollars ($90,000.00) as a security deposit (the Security
Deposit). The Security Deposit shall be payable in ten (10) equal monthly installments of Nine
Thousand and no/100 Dollars ($9,000.00). Rickenbacker shall make its first monthly installment
of the Security Deposit on or before April 1, 2009. The Security Deposit shall be placed by the
Lessor in a noninterest bearing account for the benefit of Rickenbacker.
The Security Deposit shall be considered as security for the payment of all of
Rickenbacker's obligations, covenants and agreements under this Lease. Within Thirty (30) days
after either this Lease expires or upon the earlier termination of this Lease (whichever applies),
the Lessor shall (provided that the Rickenbacker is not in material default under the terms of this
Lease) return the Security Deposit to the Rickenbacker less any portion of the' Security Deposit
that the Lessor shall have used to make good any default of Rickenbacicer. In the event of any
such default by Rickenbacker, Lessor shall have the right, but shall not be obligated, to apply all
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or any portion of the Security Deposit to cure the default, in which event Rickenbacker shall be
obligated to deposit with the Lessor the amount necessary to restore the Security Deposit to
Ninety Thousand and no/100 Dollars ($90,000.00).
10. Gross Revenues
Section 11 of the Lease is amended to read as follows:
11. Gross Revenues Defined.
"Gross Revenues" means all revenue actually received by Rickenbacker and to the extent
provided below, by Rickenbacker's other related services derived directly and indirectly from
business operations located on or initiated at the Property. Gross Revenue shall include:
1. Revenue derived from. advertising and sponsorships conducted on the
Property;
2. Any parking revenue generated on the Property;
3. Revenue fiom sales, rentals, and services, such as pay telephones, vending
machines, and entertainment devices both for cash and on credit, rendered in
or upon the Property;
4. With respect to boatyard service, maintenance and repairs, all revenue paid to
any outside service and repair facility under contract with Rickenbacker's
subtenant or which operates as Rickenbacker's agent or subtenant's agent, for
any sale, rental, or service initiated at or from the Property;
5. All revenue received by Rickenbacker or Rent paid to Rickenbacker from
Rickenbacker's subtenants in connection with the use of the Property, any
facility thereon, or any portion thereof for any period of time, including
without limitation, for:
(i) special events, including, but not limited to, banquets, concerts,
tournaments, receptions and parties held on or initiated from the Property;
and
(ii) motion picture, commercial filming purposes or commercial photographic
purposes held on or initiated from the Property;
6. Rent paid -to Rickenbacker by subtenants of marine services;
7. All revenue received by Rickenbacker from the operation of the marina,
moorings, the boatyard and the marine fueling facility.
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11. Records, Accounts and Statements
Section 12 of the Lease is hereby amended to read as follows:
12. Records and Inspections.
A. Records. Rickenbacker shall maintain full and accurate books of account,
records, cash receipts, and other pertinent data showing its Gross Revenues for the Property,
together with copies of all sales and tax returns covering its operations at the Property, and any
other governmental tax or other returns related to the Property that show Rickenbacker's sales
therein. Rickenbacker shall install and maintain accurate receipt -printing Point of Sale system(s)
and shall record on the Point of Sale system(s) every sale and other transaction made from the
Property. At all times during the Term, upon providing ten (10) business days prior notice to
Rickenbacker, all records and accounts and all other supporting records, shall be available for
inspection and audit by the Lessor and its duly authorized agents or representatives during the
hours of 8:00 AM to 5:00 PM, Monday through Friday, and shall be in accordance with generally
accepted accounting principles. Said inspection and audit of such records and accounts shall not
occur more than two (2) times in any given calendar year. Rickenbacker shall, upon demand,
deliver photographic copies or computer disks, if available, thereof to the Lessor at no cost.
Rickenbacker will cooperate with the Lessor's internal auditors (or such other auditors designated
by Lessor) in order to facilitate the Lessor's examination of records and accounts.
Such books of account, records, cash receipts, and other pertinent data shall be kept for a
period of five (5) years after the end of each year of the Lease. The receipt by Lessor of any
statement, or any payment of Percentage Rent for any period, shall not bind Lessor as to the
correctness of the statement or the payment.
B. City's Richt to Audit. Notwithstanding the provisions contained in Section 8 2
(b) requiring Rickenbacker to provide annual audited financial statement, at its option, Lessor
may cause, at its sole cost and expense, at any time within sixty (60) months of receipt of any
Percentage Rent statement furnished by Rickenbacker, and upon providing thirty (30) days
written notice to Rickenbacker, a complete audit to be made of Rickenbacker and its subtenants,
management agreements, licensees and concessionaires' accounting records in connection with
the sales on, from or related to the Property for the period covered by any such statement
furnished by Rickenbacker. If such audit shall disclose an underpayment of Rent, Rickenbacker
shall pay Lessor any unpaid balance within thirty (30) days of receipt of notice from Lessor that
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such balance is due. If such audit shall disclose an overpayment, Lessor shall credit such
overpayment towards the next payment of Rent due.
Rickenbacker shall allow the Lessor or theAuditors of the Lessor to inspect all or any part
of the compilation procedures for the aforesaid monthly reports. Said inspection shall be
reasonable and is at the sole discretion of the Lessor.
The acceptance by Lessor of payments of Percentage Rent shall be without prejudice to
Lessor's right to conduct an examination of Rickenbacker's books and records of its and
inventories of merchandise on the Property in order to verify the amount of annual sales made in
and from the Property. Lessor shall not re-examine an accounting period which has previously
been audited, unless it has reasonable cause, and may not go back further than sixty (60) months
from the receipt of Percentage Rent.
To the extent permitted by law, Lessor shall keep any information gained from such
statements, inspection or audit confidential and shall not disclose it other than to carry out the
purposes of this Lease, except that Lessor shall be permitted to divulge the contents of any
statements in connection with any financing arrangements or sale of Lessor's interest in the
Property.
12. State of Florida.
A new Section 32 is added to the Lease to read as follows;
12. State of Florida.
Rickenbacker and Lessor acknowledge that a portion of the Land is subject to certain
restrictions contained in Deed No. 18030 made by the Trustees of the Internal Improvement Fund
of the State of Florida to the City dated July 23, 1929. Rickenbacker and Lessor will fully
cooperate and work together utilizing best efforts and diligence in order to obtain a finding of
compliance with the deed restriction or a waiver of deed restriction if a finding of compliance
cannot be obtained from the State of Florida Board of Trustees of the Internal Improvement Trust
Fund. Rickenbacker shall comply with all of the terms of and make all payments, including any
prior year payments to the State and/or the Board of Trustees of the Internal Improvement Trust
Fund of the State of Florida (the "Trustees"), if any are required. However, the City will advise
Rickenbacker in writing, within fifteen (15) days of its receipt of notice from the State, that
retroactive fees will apply and Rickenbacker will have fifteen (15) days to respond in writing to
the City as to whether or not Rickenbacker is willing to pay the retroactive fees or terminate this
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Lease. In the event that the Rickenbacker is not willing to pay all of the retroactive fees, or fails
to respond within said fifteen (15) day period, then this Amendment shall expire on the Original
Expiration Date, and all other provisions which under this Amendment become effective on the
Effective Date will be null and void.
Rickenbacker shall provide Lessor with adequate proof that the payment has been made
to the Trustees. Should Rickenbacker not make the payments when due as required, then Lessor
may make the payment and Rickenbacker shall reimburse Lessor full payment within ten (10)
days after providing Rickenbaeker written notice of the monies due to Lessor.
13. Property Taxes,
Section 13 of the Lease is amended to read as follows:
13. Property Taxes
During the term of this Amendment, Rickenbacker agrees to pay or cause -to be paid, all
ad valorem real property taxes and any special assessments before any fine, penalty or interest is
added for nonpayment of the Property. Notwithstanding the above, Rickenbacker agrees that to
the extent that the Property's Improvements are subject to ad valorem taxation, Rickenbacker, at
the option of the Rickenbacker, may enroll in the Dade County Ad Valorem Tax Payment Plan
(the "Tax Plan"). Failure to pay taxes when due shall constitute an Event of Ri:ckenbacker's
Default under this Lease.
14. Manner of Operation
Section 15 of the Lease is hereby amended to read as follows:
15. Manner of Operation.
Rickenbacker shall keep the Property reasonably staffed to serve the patrons thereof, and
Rickenbacker shall maintain a standard of quality of at least equal to similar marina operations in
the area at reasonably comparable prices.
The restaurant and till bar shall be, at a minimum, open for hunch and dinner seven (7)
days a week, with the exception of national holidays or such other days that are approved in
writing by the City Manager. Rickenbacker may also close the restaurant and till bar during
construction of improvements, if deemed necessary or appropriate in its reasonable discretion,
provided, however, that in no event shall the restaurant and tiki bar be closed more than three (3)
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consecutive days during any one calendar year. There shall be no abatement of rent for any
period of time that the restaurant and tiki bar is closed.
Except where the Property is rendered untenantable by reason of fire or other casualty,
Rickenbacker shall at all times during the Term of this Lease occupy and continuously conduct
operations of the Property in accordance with this Lease.
15. Maintenance and Repair.
Section 17 of the Lease is hereby amended to read as follows:
17. Maintenance, Repair and Alterations
A. Dgt, t% o Re air. During the term hereof, Rickenbacker, at Rickenbacker's
expense, shall keep and maintain the Property thereon in good and sanitary order, condition and
repair consistent with the operation of a first-class quality marina and restaurant in the Miami
area. Upon expiration or termination hereof, Rickenbacker shall surrender and deliver up to
Lessor the Property and all Improvements thereon in good and usable condition, ordinary wear
and tear excepted.
B. Periodic Inspections. Within sixty (60) days of every anniversary of the Effective
Date, Rickenbacker and Lessor, together, and with their respective consultants shall conduct an
inspection of the Property for the purposes of assuring that the Property is maintained in first
class condition. Rickenbacker and Lessor will each prepare a list of suggested repairs. The
parties shall endeavor, in good faith, to reconcile their respective repair lists within a farther sixty
(60) day period. Any disputes shall be submitted to arbitration as provided hereinafter. Once
reconciled/agreed, or an arbitration decision has been rendered, Rickenbacker will, within 120
days, submit to Lessor plans for such repairs and, after approval thereof, will perform such
repairs in an expeditious maimer. The cost of such repairs shall apply toward the pursuant to
Subsection D below.
C. Alterations and Additions. Rickenbacker shall not make any alterations or
additions to the Property exceeding the cost of One Hundred Thousand Dollars ($100,000) in
each instance except as defined and shall not make any structural alterations or alterations to the
exterior of the Property except as defined in Exhibit "B", shall not change the footprint of the
Property or install any signage to the exterior of the Property, ("Alterations") without the prior
written approval of the City Manager. All permitted Alterations shall be completed free of liens
and in accordance with all applicable legal requirements. The City Manager may impose, as a
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condition of the consent to an Alteration, such requirements as he/she, in his/her reasonable
discretion, may deem desirable, including, but not limited to, obtaining bonds and Builder's Risk
Insurance.
D. Process for Disagreement. In the event of any unresolved dispute between the
Lessor and Rickenbacker regarding the reserve fund and/or reserve fund expenditures, the parties
shall submit the dispute to arbitration conducted by the American Arbitration Association in
accordance with the Commercial Arbitration Rules of the American Arbitration Association then
in effect. Any such arbitration shall be held and conducted in Miami, Florida before an arbitrator
who shall be selected by mutual agreement of the parties. If agreement is not reached on the
selection of the arbitrator within ten (10) days, then such arbitrator shall be appointed by the
presiding judge of the local state court. The provisions of the Cominercial Arbitration Rules of
the American Arbitration Association shall apply to and govern such arbitration, with the
exception that the decision of the arbitrator shall be final, and judgment may be entered on it in
accordance with applicable law in any court having jurisdiction over the matter.
16. Destruction.
Section 18 of the Lease is hereby amended to read as follows:
18. ' Destruction.
In the event the Property shall be substantially destroyed or so damaged or injured by fire
or other casualty during the term of this Amendment whereby the same shall be rendered
completely or substantially untenantable, then Rickenbacker shall commence repairs as soon as
practicable (but not later than six months thereafter without the written consent of the City
Manager) and complete such repairs within a reasonable period of time.
In the event the Property is substantially destroyed or so damaged or injured by fire or
other casualty that the Property cannot be rendered tenantable or that Ricicenbacicer elects not to
commence repair within the six month period as set forth above, or such additional period of
time as agreed to by the Lessor's City Manager, then the proceeds of the insurance policy or
policies covering such loss or damage shall be paid to the City of Miami and Rickenbacker as its
interests appear, and tlus Lease shall be deemed terminated and the rent shall be payable only to
the date that said Property is rendered uritenantable. Notwithstanding the above, all insurance
proceeds received for loss relating to fiu-niture, fixtures and equipment and business interruption
shall be paid to Rickenbacker.
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17. Insurance.
Section 20 of the Lease is hereby amended to read as follows:
20. Insurance.
A. At all times during this Amendment, Rickenbacker shall, at Rickenbacker's sole
cost and expense but for the benefit of Lessor and Rickenbacker as their interests may appear,
maintain in fiill force and effect the following insurance:
1. Property Insurance. "All risk" property insurance, including coverage for
earthquake, mudslide, windstorm, hail, sprinkler leakage and flood.
i) Amounts. Such coverage shall be subject to One Hundred Percent
(100%) of the replacement cost of the Improvements (exclusive of foundation
and excavation costs), Rickenbacker's alterations, improvements, fixtures,
equipment, furniture, trade fixtures and floor coverings, including the expense
of the removal of debris as a result of damage by an insured peril (collectively,
the "Insured Property") on the Property. With respect to Wind and Hail
coverage, the policy may include a limitation on the building coverage of
$1,000,000.
ii) Deductibles. The maximum deductibles for such coverage shall be
as follows: (i) as to windstorm, greater of One Hundred Thousand Dollars
($100,000) or Five Percent (5%) of value of building and contents; (ii) as
to flood, One Thousand Dollars ($1,000) on building and One Thousand
Dollars ($1,000) on contents; and (ii) as to all other perils, One Percent
(1%) of the insured value.
iii) Loss Payees and Insureds. Lessor and Rickenbacker shall be
named as loss payees. Rickenbacker shall be the first named insured, and
Lessor shall be named as additional insured.
iv) Special Considerations for Property and Windstorm Insurance.
Notwithstanding the foregoing, the parties acknowledge and agree that
coastal properties are often precluded from being insured by private
insurers and that any casualty and windstorm insurance may have to be
written through the Florida Joint Underwriters Association and/or other
governmental or other insurance pool which may include certain
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prohibitions such as no replacement cost coverage and/or modifications to
"deductibles".
v) Business Interruption Insurance. Business interruption insurance
covering "All Risk" perils in the limits of which insurance, if available,
shall not be less than the annual Base Rent and the debt service payments,
if any, affecting Property during the full period of reconstruction following
a total loss. Rickenbacker shall be named as loss payee. Rickenbacker
shall be the first named insured and Lessor shall be named as additional
insured.
B. Other Insurance To Be Carried.
Rickenbacker shall also, at Rickenbacker's sole cost' and expense but for the mutual
benefit of Lessor (with Lessor being named as an additional insured thereunder) and
Rickenbacker, maintain the following insurance:
1. CGL Insurance. Commercial General Liability insurance on a
commercial general liability coverage form with "broad form" coverage, or its equivalent,
including contractual liability, products and completed operations, personal injury, liquor legal
liability, garage keepers liability, if applicable, and products and completed operations, personal
injury, and premises coverage against all claims, demands or actions, bodily injury, personal
injury, death or property damage occurring in or about the Property.
i) Amounts. The limits of such coverage shall not be less than One
Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars
($2,000,000.00) aggregate. No deductible in excess of Twenty-five
Thousand Dollars ($25,000.00) will be carried under this coverage without
the City Manager's prior written consent, which shall not be unreasonably
withheld. The Lessor shall be named as Additional Insured on the policy
or policies of insurance.
ii) Marina Operators Legal Liability insurance, including coverage for
protection and indemnity, the limits of which shall not be less than One
Million Dollars ($1,000,000.00).
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iii) Umbrella Policy. Rickenbacker shall further maintain an excess
follow form liability umbrella policy whose limits shall not be less than a
combined single limit of Three Million Dollars ($3,000,000.00).
2. Builder's Risk. During periods of excavation and/or construction
or during periods of alteration or during periods of restoration in the event of damage or
destruction or condemnation or during periods of razing or demolition at, in or on the Property,
the improvements or any part of it, an all risk Builder's Risk policy (including extended coverage
for fire, lightning, earth movement, flood, collapse, business interruption, hurricane, boiler and
machinery) covering the interests of Lessor and Rickenbacker. Such policy shall insure that
portion of the improvements which is affected by such excavation and/or construction for not
less than One Hundred Percent (100%) replacement cost on a completed value basis (inchiding
foundations and pilings), as well as the contingent liability from the operation of buildings, and
coverage for the demolition cost of undamaged portions of buildings. This Builder's Risk
coverage may be satisfied by an overall policy covering "additions" made to the Properly or
Installation Floaters coverage.
3. E & O Coverage. Rickenbacker shall cause all of the key or
primary professionals retained by it in connection with any construction (e.g., architects and
engineers) to procure errors and omission coverage reasonably satisfactory to Rickenbacker for
Rickenbacker's and Lessor's benefit, in such amounts as are customarily carried by such
professionals in Miami -Dade County, Florida. As of the Effective Date, One Million Dollars
($1,000,000.00) in coverage is acceptable to Lessor. Lessor shall be named as Additional
Insured,
4. Worker's Compensation. Worker's compensation and
occupational disease coverage, including USL&H endorsement, if applicable; in the amounts and
types required by State law. Only Rickenbacker shall be named, as an insured. During the
construction of any improvements, Rickenbacker shall carry or cause to be carried worker's
compensation insurance and any such other insurance as may be required by law to be carried by
Lessor and Rickenbacker or either of them in connection with the construction.
5. Automobile Liability. Automobile liability insurance covering all
owned, non -owned and hired vehicles used in conjunction with operations covered by this
Amendment. This automobile liability coverage. may be. satisfied by a policy obtained by an
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independent valet company if such valet service is contracted out by Rickenbacker, subject to
said valet company listing Lessor and Rickenbacker as additional insureds, and Lessor receiving
and approving such evidence of insurance. The policy or policies of insurance shall contain such
limits as may be reasonably requested by Lessor from time to time but not less than Five
Hundred Thousand ($500,000) for bodily injury and property damage.
6. Terrorism Coverage. The Lessor's Director of Risk Management
shall have the right to require insurance coverage for terrorist acts, if such coverage is available
in the insurance market, at a reasonable cost, with such limits and deductibles to be approved by
the Director of Risk Management.
7. Other Coveraye. In the event that any other type of legislation may
be enacted imposing special liability upon Lessor or Rickenbacker by virtue of its use for any
special purposes, before Rickenbacker shall so use the Property and/or the improvements or any
part of it for such purposes, Rickenbacker shall provide insurance in form and substance, and
with insurers and limits reasonably satisfactory to Lessor's Director of Risk Management and
meeting commercial standards insuring the interests of Lessor and Rickenbacker and naming
Lessor as additional insured.
8. Amendment to Coverage. The Lessor's Director of Risk
Management shall have right to reasonably amend the herein insurance requirements by the
issuance of a notice in writing to Rickenbacker at least 90 days in advance of the renewal date on
the insurance policy in question. Such amended coverage shall be procured by Rickenbacker no
later than the time for renewal and/or procurement of its next insurance policy.
C. Policies Obtained by Independent Contractors. Rickenbacker may
cause its independent contractors to provide some or all of the insurance coverages required
hereunder. To the extent that such independent contractors carry such coverages, Rickenbacker
shall not be required to carry such coverages, so long as the coverages obtained by Rickenbacker
and such independent contractors together satisfy the requirements of this section on insurance.
Lessor and Rickenbacker shall be named as additional insureds as to any such coverages obtained
by Rickenbacker's independent contractors.
D. Deliv= of Insurance Policies. All public liability and worker's
compensation policies shall be retained by Rickenbacker. All other policies of insurance
required to be furnished shall be held jointly by Lessor and Rickenbacker. Insurance company
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certificates evidencing the existence of all of these policies of insurance. shall be delivered to
Lessor.
i) Required Policy Provisions. All policies of insurance required to
be provided and obtained shall provide that they shall not be amended or canceled
on less than thirty (30) days' prior written notice to Lessor and all insureds and
beneficiaries of the policies; provided, however, that if thirty (30) days' notice is
ever commercially unavailable, then the required number of days' notice shall be
reduced to such number as is commercially available. All policies of insurance
shall further provide that they shall not be cancelled for non-payment of premium
on less than ten (10) days' prior written notice to Lessor and all insureds and
beneficiaries of the policies. All such policies shall contain waiver of subrogation
rights endorsements as required below. Lessor shall have no obligation to pay
premiums or make contributions to the insuring company or any other person or
satisfy any deductible.
ii) Delive . On or before the Effective Date and then not less than
twenty (20) days prior to the expiration date of any policy required to be carried
pursuant to this Section, Rickenbacker shall deliver to Lessor the applicable
respective policies and insurance company certificates evidencing all policies of
insurance and renewals required to be furnished hereunder, including those
policies that may be provided by a valet company or other independent contractor.
Receipt of any documentation of insurance by Lessor or by any of its
representatives which indicates less coverage than required does not constitute a
waiver of Rickenbacker's obligation to fulfill the insurance requirements herein.
E. Lessor's Right to Obtain. If Rickenbacker fails to pay insurance premiums
when due or to comply with other insurance requirements set forth in this Amendment,
Lessor shall have the right, at its option but not an obligation, to order insurance policies
and to advance such sums as are required to maintain or procure such insurance, and to
the extent of the money so advanced, Lessor shall be entitled to reimbursement by
Rickenbacker in wluch event the amount of the premium paid shall be paid by
Rickenbacker to the Lessor as additional rent upon demand and shall in each instance be
collectible on the first day of the month or any subsequent month following the date of
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payment by the City. Rickenbacker's failure to procure insurance shall in no way release
Rickenbacker from its obligations and responsibilities as provided hereof. Unless there
would ensue a lapse of coverage, Lessor shall, before malting any such advance, provide
Rickenbacker with thirty (30) days' prior written notice and the opportunity to obtain the
required policies.
F. Insurer To Be Approved, Premium Receipts. All policies of insurance of
the character described herein shall be effected under policies issued by insurers
permitted to do business in the State of Florida as an admitted or non -admitted carrier and
rated in Best's Insurance Guide, or any successor thereto (or, if there is none, an
organization having a national reputation for rating insurance companies) as having a
general policyholder rating of "A" and a financial strength rating of at least "X". In the
event that a carrier with such rating is not available, the policy must be submitted to
Lessor's Director of Risk Management for review and acceptance. On written request by
Lessor, Rickenbacker shall provide photocopies of receipts showing the payment of
premiums for all insurance policies required to be maintained by this Amendment.
G. Waiver of Subro ag tion
i) Mutual Waiver. Each party waives all rights to recover against the
other party for any damage arising from any cause covered by any insurance
required to be carried by the waiving party, or any insurance actually carried by
the waiving party; provided, however, that such waiver shall apply only to the
extent the applicable insurers issue the appropriate waiver of subrogation rights
endorsements described below.
ii) Endorsements. Each party shall cause its insurer(s) to issue
appropriate waiver of subrogation rights endorsements to all policies of insurance
carried in connection with the Property.
18. Assignment and subletting of premises.
Section 24 of the Lease is hereby amended to read as follows:
24. Assignment and subletting of premises.
The Lessee shall not at any time during the term of this Lease Agreement assign this
Lease Agreement or any portion or part thereof, except and by virtue of written authorization
granted by the City Manager of the City. The Lessee agrees that all monies, including but not
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limited to rent and other Rickenbacker imposed fees, due to Rickenbacker from any existing
subleases, will not increase by more than twenty percent (20%) of the current monies due.
19. Notices.
Section 26 of the Lease is amended to read as follows:
26. Notices.
All notices shall be sent to the parties at the following addresses:
LESSOR: City of Miami
City Manager
3500 Pan American Drive
Miami, FL 33133
With copy to:
City of Miami
City Attorney
444 SW 2 Avenue, 9t" Floor
Miami, FL 331.30
City of Miami
Director, Department of Public Facilities
444 SW 2 Avenue, 3rd floor
Miami, FL 33130
LESSEE: Rickenbacker Marina, hie.
Aabad R. Melwani, President
3301 Rickenbacker Causeway
Miami, Florida 33149
Lessor and Rickenbacker may change such addresses at any time upon giving the
other party written notification.
All notices under this Amendment must be in writing and shall be deemed to be
served when delivered to the address of the addressee. All notices served by snail shall be
registered or certified mail, return receipt requested.
Rickenbacker may designate additional persons for notification of default.
20. Safety.
A new Section 33 is hereby added as follows:
33. Safely.
Rickenbacker will allow Lessor inspectors, agents or representatives the ability to monitor
its compliance with safety precautions as required by federal, state or local laws, rules,
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