HomeMy WebLinkAboutExhibitAMENDMENT NO. 3 TO LEASE AGREEMENT
BETWEEN CITY OF MIAMI
I•� E
BISCAYNE BAY RESTAURANT CORPORATION,
A Florida Corporation, a wholiv owned subsidiary of Specialty Restaurants Corporation, a
California Corporation, d/b/a Rusty Pelican
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TABLE OF CONTENTS
1.
Incorporation of Recitals.........................................................................................
2
2.
Definitions...............................................................................................................2
3.
Term........................................................................................................................
3
4.
Use..........................................................................................................................
4
5.
Ownership of Improvements...................................................................................
6.
Pledge of Leasehold Interest...................................................................................
6
7.
Rent......................................................................................................................... 7
8.
Gross Receipts......................................................................................................
10
9.
Records, Accounts and Statements.......................................................................
11
10.
Manner of Operation.............................................................................................
13
11.
Maintenance and Repair.......................................................................................
14
12.
Destruction............................................................................................................19
13.
Insurance...............................................................................................................
19
14.
..................
Notices...................................................................................... ..........18
15.
Capital Improvements...........................................................................................
19
16.
State Approval......................................................................................................
19
17.
Safety................................................................................
18.
Americans With Disabilites Act...........................................................................
19
19.
Force Majeure....................................................................................................19
20.
No Defaults ......................... ..................................................................................
19
21.
Counterparts..........................................................................................................
19
22.
Amendment...........................................................................................................19
23.
Additional Parking ......................................................................
19
Exhibit "A" ..........................Legal Description
Exhibit 'B"..........................Required Capital Improvements
Exhibit 'B-I".........................Phase I Required Capital Improvements
Exhibit "B -II" ....................... Phase II Required Capital Improvements
Exhibit "B-III".......................Phase III Required Capital Improvements
Exhibit 'B -IV" .......................Optional Capital Improvements
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Schedule 1........................Insurance Requirements
Schedule 2........................Location of New Parking Facility and Access Road from
New Parking Facility
Schedule 3........................Sketch of Location for Additional Parking
Schedule 4........................Construction Draw Down Schedule
Schedule 5........................Form of Notice of Parking Rights
AMENDMENT NO.3 TO LEASE AGREEMENT
THIS AMENDMENT to Lease ("Amendment") is made and entered into as of the
day of 2009 ("Execution Date"), between the CITY OF MIAMI, a municipal corporation of
the State of Florida ("Lessor"), and BISCAYNE BAY RESTAURANT CORPORATION, a
Florida Corporation, a wholly owned subsidiary of Specialty Restaurants Corporation, a
California corporation, d/b/a Rusty Pelican ("Lessee").
RECITALS
A. Lessor and Lessee entered into a Lease Agreement dated February 13, 1970 (the
"1970 Lease Agreement") whereby the Lessor leased to Lessee the property
described in Exhibit "A" attached hereto (the "Property"), for the development
and operation of a first class waterfront restaurant now known as the Rusty
Pelican Restaurant (the "Rusty Pelican"). The 1970 Lease Agreement has been
amended by a ' Supplemental Lease Agreement dated July 23, 1970, an
Amendment No. 1 to Lease Agreement dated May 28, 1982, an undated
Addendum to Lease Agreement authorized by Resolution 89-508 adopted by the
City Commission on June 7, 1989, and an Amendment to Lease Agreement dated
December 18, 2001 (collectively the "Lease").
B. The current term of the Lease, together with the options to renew, expires on
October 1, 2012 (the "Original Expiration Date").
C. Lessee requested that Lessor extend the term of the Lease in order to allow Lessee
to amortize the cost of certain capital improvements that the Lessee plans to
perform on the Properly, which are more specifically described in Exhibit "B"
hereto.
D. Pursuant to Resolution No. 03-855, adopted July 24, 2003, the City Commission
of the City of Miami (the "City Commission") authorized the submission for
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consideration by the electorate of the City of Miami (the "City"), of a ballot
question to amend Section 29-B of the Charter of the City to authorize the City
Commission to amend the Lease for the purpose of extending the Original
Expiration Date and increasing the minimum guaranteed rent to be paid by Lessee
to the Lessor.
E. On a special municipal election held on November 4, 2003 the electorate of the
City approved the proposed extension and modification of the Lease.
F. Subsequent to said special municipal election, the City engaged EDSA
Consultants to prepare a master plan (the "EDSA Plan') for the entire island of
Virginia Key (on which the Property is located).
G. As a result of certain recommendations included in the EDSA Plan, additional and
different capital improvements have therefore been proposed by Lessee, and
Lessor has agreed to and accepted the same_
NOW, THEREFORE, in consideration of the foregoing and the conditions, covenants and
agreements hereinafter set forth and in consideration of other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Lessor and Lessee agree to amend the Lease
as follows:
1. Incorporation of Recitals
The recitals and findings set forth above are hereby adopted by reference thereto and
incorporated herein as if fully set forth in this Amendment.
2. Definitions
A new paragraph is hereby added immediately prior to Paragraph 1 of the Lease to define certain
teens and phrases in the Lease as follows:
A. "Effective Date" means the date on which the State of Florida issues its
determination that the use of the Property complies with the deed restriction or
waives the deed restriction, as described in Section 16 of this Amendment.
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B. "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.
C. "Gross Revenues" shall have the meaning ascribed to it in Section 8 of this
Amendment amending Paragraph 12 of the Lease.
D. "Improvements" means all improvements, including Lessee'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 the
BaywaIk and Vista Point, if constructed by Lessee as contemplated in this
Amendment, and any additions to, substitutions for, changes in or replacements
of, the whole or any part thereof.
E. "Land'' means the approximately 5.886 acres of real property in the City of
Miami, described in Exhibit "A" hereto.
F. "Lessee's Capital Improvements" means the improvements described in Exhibit
"B" as the "Required Capital Improvements" and the "Optional Capital
Improvements", as the same may be modified, relocated, reduced or expanded,
by mutual agreement, and as provided in this Lease Agreement, from time to
time.
G. "Phase I and Phase II Required Capital Improvements" mean the improvements
described in Exhibit `B" as Required Capital Improvements: Phase I and Phase II
to be constructed by the Lessee in accordance with Section 15 of this
Amendment.
H. "Property" shall mean the Land and the Improvements.
3. Term
Paragraph 2 of the Lease is hereby amended to read as follows:
2. Term.
The base term of this Lease currently expires on October 1, 2012. The base term
of this Lease shall be automatically extended to October 1, 2027 provided (i) the
Effective Date occurs on or before the first anniversary of the Execution Date, or
such other date as may be extended by the City Manager in accordance with
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Section 17 of this Amendment, and (ii) Lessee has substantially completed the
Phase I and Phase II Required Capital Improvements within twenty-four (24)
months from the Execution Date, subject to Force Majeure (and, with respect to
the Phase II Required Capital Improvements, subject to extension as provided for
in Section 34. C of this Amendment). In addition, if the base term of the Lease is
extended in accordance with the preceding sentence, Lessee is hereby granted two
(2) options to renew the term of this Lease, under the same terms and conditions,
for two (2) additional successive periods of five (5) years each. If exercised, the
first extension term will commence on October 2, 2027 and will expire on
October 1, 2032 (the "First Extension Term") and, if exercised, the second
extension term will commence on October 2, 2032 and expire on October 1, 2037
(the '`Second Extension Term"). Lessee shall give Lessor written notification of
its intention to exercise the option to extend this Lease for the First Extension
Term no earlier than October 1, 2025, and not later than October 1, 2026. Lessee
shall give Lessor written notification of its intention to exercise the option to
extend this Lease for the Second Extension Term no earlier than October 1, 2030,
and not later than October 1, 2031. If the conditions described in the second
sentence of this Section are not satisfied within the time provided herein, then the
provisions of this Section 3 for the automatic extension of the base term of the
Lease will be void and of no further force and effect and the Lease will expire on
October 1, 2012. For purposes of this Amendment, the Phase I and Phase II
Required Capital Improvements shall be deemed substantially completed when
the Lessee's architect certifies to Lessor in writing, and Lessor accepts such
certification, that such Phase I and Phase II Required Capital Improvements are
substantially complete.
4. Use
Paragraph 4 of the Lease is hereby amended to read as follows:
4. Use.
The Property is leased to Lessee for the purpose of operating a first class
restaurant, including dining and banquet facilities; cocktail lounge, outdoor
patios/decks/Ceremony Deck, walkways, gift shop, water taxi accommodations
and related parking facilities, and for purposes incidental thereto. Lessee shall
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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 term of this Lease, Lessee has
agreed to construct a pedestrian walkway substantially in accordance with the
sketch attached as Exhibit `B-1" hereto (the "Baywalk"), and an outdoor deck
substantially in accordance with the sketch attached as Exhibit `B-1" hereto (the
"Vista Point"). The Baywalk and Vista Point shall be treated as part of the
Property for all purposes under this Lease, except that (i) the Baywalk shall be
open to use by the public and such public use shall not be prohibited by the
Lessee in the operation of its business in the Property, and (ii) the Vista Point
shall be open to use by the public, but Lessor acknowledges and agrees that
Lessee shall be authorized to use the Vista Point in the regular course of its
business, including for restaurant events. Notwithstanding the above, the Lessor
shall have the right to request from Lessee the use of the Vista Point for up to six
(6) events per calendar year for City special events. The Lessor's use of the Vista
Point for such special events shall be coordinated with and reserved through the
General Manager of Lessee's restaurant. In no circumstance shall any City
special event supercede a previously reserved event booked by the Lessee's
restaurant. The Lessor shall have the right to make alternative arrangements for
food and beverages for any of its special events at the Vista Point at its sole
discretion. Notwithstanding same, the Lessee shall have the first right of refusal to
provide such food and beverages if Lessee agrees to provide similar or better
quality food and beverages, with a comparable menu, at the same or lesser price
than that which the City was going to pay to a third party.
5. Ownership of Improvements
Paragraph 8 of the Lease is hereby amended to read as follows:
8. Ownership of Improvements.
Except for the Baywalk and Vista Point, which once constructed by the Lessee,
shall inunediately become the property of the Lessor, all other improvements,
furnishings, and equipment constructed or installed on the Property by Lessee
shall be personal property of Lessee and Lessee shall have legal title thereto
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during the term of the Lease. Upon the expiration or termination of this Lease,
title to all permanent improvements constructed on the Property and all
transferable licenses used in the operation of the restaurant, shall vest in Lessor.
Title to all supplies, furniture, furnishings, inventories, removable fixtures and
equipment not permanently attached to the Property, and other personal property,
shall remain vested with the Lessee, and the Lessee shall have the right to remove
such items from the Property provided that it repairs any damage caused by
Lessee's removal. Should Lessee fail to repair any damage to the Property caused
by Lessee's removal of its personal property within ten (10) days after receipt of
written notice from the Lessor directing the required repairs, the Lessor shall
cause the Property to be repaired at the sole cost and expense of Lessee. Lessee
shall pay 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 Lessee to remove any
improvements constructed in connection with the Ceremony Deck. Should
Lessee fail to remove said improvements and other items of personalty by the last
day of the Term, 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 Lessee's sole cost and expense.
6. Pledge of Leasehold Interest
Paragraph 9 of the Lease is hereby amended to read as follows:
9. Pledze of Leasehold Interest.
Lessee may pledge or encumber Lessee's leasehold interest as security for an
institutional loan, subject to the written approval of the City Manager of the City,
which approval will not be unreasonably withheld, or delayed, from reputable
lenders or lending institutions, but not beyond the term of the Lease and in an
amount not to exceed Two Million Five Hundred Thousand Dollars ($2,500;000)
for the sole purpose of funding capital improvements to the Property. The
leasehold interest pledged shall not include public land. Prior to obtaining
written approval, Lessee shall furnish to the City Manager all agreements and
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legal instruments pertaining thereto involving the pledge of leasehold interest as
security.
7. Rent
Paragraph 10 of the Lease is hereby amended to read as follows:
10. Rent
A. Base Rent. Commencing on the Execution Date, Lessee shall pay Lessor
as Base Rent the sum of Three Hundred Sixty Thousand Dollars ($360,000) per
year, payable in equal monthly installments of Thirty Thousand Dollars ($30,000)
per month, plus Florida State Use Tax, if applicable. Base Rent shall be paid in
advance on the first day of each and every calendar month from the Execution
Date. If the first payment of Base Rent does not fall on the first day of the month,
the first payment shall be prorated based upon the number of days in such month.
Commencing on the fifth (5th) anniversary of the Execution Date, and every five
(5) years thereafter during the term of the Lease, the Base Rent shall be adjusted
to that amount which equals fift3, percent (50%) of the average total annual rent
including Percentage Rent paid by Lessee to Lessor during the previous five (5)
year period, provided however that in no event shall the annual Base Rent be
reduced below the annual Base Rent applicable for the prior five year period.
B. Percentaae Rent. From the Execution Date and continuing throughout the
term of the Lease, Lessee shall pay to Lessor a variable percentage of Lessee's
monthly Gross Revenues (as defined herein) made from or upon the Property,
including, without limitation, the Baywalk, Vista Point and Ceremony Deck; if
any, in excess of the Base Rent (as such sum may be increased over the Term of
the Lease) for that same time period. Percentage Rent shall be computed on a
monthly basis ("Percentage Rent Period") beginning with the Execution Date and
continuing throughout the Term.
The amount of Percentage Rent, if any, due and payable from Lessee shall
be calculated as follows:
(1) From the Execution Date and continuing until the earlier of (a) the
first day of the month following the month of completion of the first Phase
to be completed of Required Capital Improvements; or (b) the first day of
the 24th month after issuance of the first building permit for the first Phase
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of the Required Capital Improvements, the amount of monthly Percentage
Rent due from Lessee shall be as follows:
• 2.5% of Gross Revenues in excess of the monthly Base
Rent from $0 to $100,000 per month; and
• 3% of Gross Revenues in excess of the monthly Base Rent
over $100,000 to $150,000 per month; and
• 5% of Gross Revenues in excess of the monthly Base Rent
over $150,000 per month.
(2) From the earlier of (a) completion of the first Phase of Required-
Capital
equiredCapital Improvements to be completed; or (b) 24 months after issuance of
the first building permit for the first Phase of Required Capital
Improvements, and continuing through the term of the Lease, as extended
hereby, the amount of Percentage Rent due from Lessee shall be as
follows:
• 7% of Gross Revenues from $0 to $12,000,000 annually;
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• 8% of Gross Revenues over $12,000,000 annually.
(3) Thereafter, during the First Extension Period and the Second
Extension Period, Percentage Rent shall be as follows:
• 8.5% of Gross Revenues.
C. Percentage Rent Due. Percentage Rent in the amounts set forth in
Subsection B above shall be payable in monthly installments, in arrears, on the
first (1st) day of each month during the Tenn, commencing on the first (1st) day
of the month which is two months after the Execution Date (e.g., if the Execution
Date is in May, the first installment of percentage rent for the month of May,
calculated as set forth in Subsection B above, is due July 1). Lessee shall deliver
to Lessor a statement setting forth the Gross Revenues during the applicable
Percentage Rent period, and Lessee shall pay to Lessor the amount, if any, by
which the applicable percentage of the Gross Revenues for such month exceeds
the monthly installment of Base Rent (as the same is increased pursuant to the
terms of this Lease) for the same month. Each statement shall be signed and
certified to be complete and correct by an officer of Lessee. Such statement shall
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show the monthly Gross Revenues and an itemization of any exclusions or
deductions therefrom for such month, as well as year-to-date amounts for the
current calendar year.
D. Delivery of Financial Information. Within one hundred twenty (120) days
after the expiration of Lessee's fiscal year, Lessee shall deliver to Lessor annual
audited financial statements including Gross Revenues for the Property for the
preceding calendar year prepared by Lessee's independent certified public
accountant. In the event that the audited financial statements indicate that Lessee
has underpaid Percentage Rent, Lessee shall pay to Lessor within said one
hundred twenty (120) day period any additional Percentage Rent that is due. In
the event that the audited financial statements indicate that Lessee has overpaid
Percentage Rent, such overpayment shall be reimbursed to Lessee in the form of a
credit to Lessee for the next accruing monthly Rent installments due hereunder, or
if no further installments are due from Lessee hereunder, such amounts shall be
refunded directly to Lessee by Lessor and this obligation of Lessor shall survive
the expiration or termination of the Lease.
If Lessee shall fail to deliver such annual audited financial statement to
Lessor within said one hundred twenty (120) day period, and such failure
continues for ten (10) days after written notice from Lessor, 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 Paragraph 13 of the Lease, as may be
necessary to certify the amount of Gross Revenues for such rental year, and
Lessee shall pay to Lessor the reasonable cost of the audit within ten (10) days of
receipt from Lessor of the cost thereof. Any underpayment or overpayment of
Percentage Rent identified in such audit shall be treated as provided above.
E. 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
444 SW 2 Avenue, 6th floor
Attention: Treasury Management/Receipts
Miami, FL 33130
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S. Gross Revenues
Paragraph 12 of the Lease is hereby amended to read as follows:
12. Gross Revenues Defined.
"Gross Revenues" means the gross selling price of all merchandise or services
sold, leased, licensed or delivered in, from or arising out of the use of the Property
and the Baywalk, Vista Point and Ceremony Deck (if constructed) by Lessee, or
received by Lessee from its permitted licensees or concessionaires, whether for
cash or on credit (whether collected or not), including the gross amount received
by reason of orders taken on the Property although filled elsewhere, and whether
made by store personnel or vending machines. Any transaction on an installment
basis, including without limitation, any "lay -away" sale or like transaction, or
otherwise involving the extension of credit, shall be treated as a sale for the full
price at the time of the transaction, irrespective of the time of payment or when
title passes. Gross Revenues also shall include any sums that Lessee receives
from all mechanical or other vending devices placed in or on Property, including
but not limited to: pay telephones, stamp machines, music machines, or
amusement machines. Gross Revenues shall also include any deposit not
refunded. Gross Revenues shall not include, or if included there shall be deducted
therefrom (but only to the extent they have been included), the following:
(1) The selling price of all merchandise returned by customers and
accepted for full credit, or the amount of discounts, refunds, and
allowances made on such merchandise.
(2) Merchandise returned to sources or transferred to another store or
warehouse owned by or affiliated with Lessee.
(3) Sums and credits received in the settlement of claims for loss of or
damage to merchandise.
(4) The price allowed on all merchandise traded in by customers for
credit or the amount of credit for discounts and allowances made instead
of acceptance of merchandise.
(5) Sales and use taxes, so-called luxury taxes, consumers' excise
taxes, gross receipt taxes, and other similar taxes now or in the future
imposed on the sale of merchandise or services, but only if such taxes are
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added to the selling price, separately stated, collected separately from the
selling price of merchandise or services, and collected from customers.
(6) Receipts from the sale of waste or scrap materials resulting from
Lessee's operations on Property.
(7) The costs or value of meals or discounts given to employees; for
which no payment is received, payroll deduction made and no other direct
consideration is received by Lessee.
(8) The cost or value of food and beverages used for entertainment and
promotion purposes.
(9) The amount of gratuities given by patrons to employees of Lessee
and banquet services charges paid to employees. Management or service
fees retained by Lessee for managing and/or distributing gratuities shall be
deemed part of Gross Revenues.
(10) Parking gratuities collected at the Property.
(11) Receipts from the sale of tobacco, cigarettes and cigars.
(12) Receipts from the sale or trade-in value of any furniture, fixtures or
equipment used on the Property.
(13) Any sums deposited by Lessee into the Reserve Fund (as
hereinafter defined).
9. Records, Accounts and Statements
Paragraph 13 of the Lease is hereby amended to read as follows:
13. Records and Inspections.
A. Records. Lessee 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 Lessee's sales therein. Lessee 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
Lessee, 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
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representatives during the hours of 8:00 AM to 5:00 PM, Monday through Friday.
Such inspection and audit shall be conducted at Lessor's cost and expense and 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. Lessee shall, upon demand, deliver photographic copies or
computer disks of the information, if available, to the Lessor at no cost. The
Lessee 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, and Lessor agrees to use commercially reasonable efforts to
minimize interference with Lessee's business operations during any such
examination of Lessee's 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. Citv's Richt to Audit. Notwithstanding the provisions contained in
Paragraph 13 of the Lease requiring Lessee to provided annual audited statements,
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
Lessee, and upon providing thirty (30) days written notice to Lessee, a complete
audit to be made of Lessee and its subtenants, 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 Lessee. If such audit
shall disclose an underpayment of Percentage Rent, Lessee shall pay Lessor any
unpaid balance within thirty (30) days of receipt of notice from Lessor that such
balance is due. If such audit shall disclose an overpayment, Lessor shall credit
such overpayment towards the next payment of Rent due, or if no further
payments are due, Lessor shall promptly refund any overpayment to Lessee and
this obligation shall survive the expiration or termination of the Lease.
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Lessee shall allow the Lessor or the auditors 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 Lessee's books
and records and of its 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.
10. Manner of Operation
Paragraph 16 of the Lease is hereby amended to read as follows:
16. Manner of Operation.
a. Lessee shall keep the restaurant and cocktail lounge reasonably stocked
with food and beverage and reasonably staffed to serve the patrons thereof, and
Lessee shall maintain a standard of quality of food and beverage and charge
reasonably comparable prices at least equal to similar operations in the area.
b. The facilities shall be, at a minimum, open for lunch 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. Lessee may also close the restaurant
during construction of improvements, if deemed necessary or appropriate in
Lessee's reasonable discretion. In the event that the restaurant is closed for the
construction of improvements as pennitted hereunder, the Base Rent payable by
Lessee shall be deferred for up to a maximum of three (3) months, and the amount
of such deferred Base Rent shall then be payable by Lessee in twelve (12) equal
montlAy installments over the next twelve (12) months of the Lease Tenn.
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C. Except where the Property is rendered untenantable by reason of fire or
other casualty, the Lessee shall at all times during the Term occupy and conduct
operations of the Rusty Pelican on the Property in accordance with this Lease.
11. Maintenance and Repair
Paragraph 18 of the Lease is hereby amended to read as follows:
18. Maintenance. Repair and Alterations
A. Duty to Repair. During the term hereof, Lessee, at Lessee's expense, shall
keep and maintain the Property and all improvements thereon in good and
sanitary order, condition and repair consistent with the operation of a first-class
quality restaurant in the Miami area. Upon expiration or termination hereof,
Lessee shall surrender and deliver up to Lessor the Property and all permanent
improvements thereon in good and usable condition, ordinary wear and tear and
casualty damage excepted.
B. Periodic Inspections. Within sixty (60) days of every fifth (5th)
anniversary of the Execution Date, Lessee 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 a first class condition. If
necessary, Lessee 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 further sixty (60) day period. Any disputes shall be submitted to
arbitration as provided hereinafter. Once reconciled/agreed, or an arbitration
decision has been rendered, Lessee will, within 120 days, submit to Lessor plans
for such repairs and, after approval thereof, will perform such repairs in an
expeditious manner. The cost of such repairs shall be paid from the Capital
Repairs, Replacements and Improvements Fund to be created pursuant to
Subparagraph D below.
C. Alterations and Additions. Lessee shall not make any alterations or
additions to the Property exceeding the cost of One Hundred Thousand Dollars
($100,000) in each instance, shall not make any structural alterations or
alterations to the exterior of the Property, shall not change the footprint of the
Property or install any signage to the exterior of the Property, ("Alterations")
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without the prior written approval of the City Manager, which approval shall not
be unreasonably withheld or delayed. All permitted Alterations shall be
completed free of liens and in accordance with all applicable legal requirements.
The City Manager may impose, as a 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.
Notwithstanding the foregoing, Lessor acknowledges and agrees that Lessee shall
not be permitted to undertake the Required Capital Improvements as described on
Exhibit `B" hereto without first obtaining the consent of the City Manager as
required pursuant to Section 34.13 of this Amendment.
D. vital Repair and Improvements. The parties recognize that the Property
requires regular capital repairs to remain competitive in the marketplace.
Therefore, commencing with the fourth anniversary date of the Execution Date,
Lessee shall begin depositing a sum equal to 1.0% of monthly Gross Revenues
into a separate Capital Repairs, Replacements and Improvements Fund (the
"Reserve Fund"), to be maintained by Lessee in a separate account, and spent by
Lessee on capital expenditures including the costs of any repairs to the Property
and any improvements or equipment installed (including labor and materials, but
excluding routine maintenance and landscaping payroll), the repair or replacement
of restaurant facility furniture, fixture and equipment ("FF&E"), and landscaping
replacements and improvements. Any sums spent by Lessee on such capital
expenditures in excess of the 1.0 % of Gross Revenues deposited by Lessee in the
Reserve Fund in any one year shall be carried over and counted against the
following year(s) and paid from future sums deposited into the Reserve Fund.
Lessee shall submit annual reports to Lessor, detailing such expenditures, and
Lessor may audit such reports at Lessor's expense, within one (1) year of its
receipt of any such report.
E. Process for Resolving Disaareements. In the event of any unresolved
dispute between the Lessor and Lessee regarding the 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
Error! Unknown document property name. 15
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 after one of the parties notifies the other in
writing that it has elected to resolve the dispute through arbitration, then such
arbitrator shall be appointed by the chief judge of the local state court. The
provisions of the Commercial 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.
12. Destruction.
Paragraph 19 of the Lease is hereby amended to read as follows:
19. Destruction.
a. In the event the Property shall be damaged or injured by fire or other
casualty during the term of this Lease, but the damages are not material (as
defined below), Lessee shall repair the damage and restore the Property to the
same condition as existed before such damage (or to as close as possible to such
condition taking into consideration then applicable building codes and
requirements), and this Lease shall remain in full force and effect. Lessee shall
commence repairs as soon as practicable (but not later than nine (9) months
thereafter without the written consent of the City Manager) and complete such
repairs within a reasonable period of time.
b. In the event the Property shall be damaged or injured by fire or other
casualty during the term of this Lease and the damages are material (as defined
below), then Lessee may elect not to commence repair of the Property, shall
provide written notice to Lessor of its intent not to repair within ninety (90) days
after the date of such casualty, and the proceeds of the insurance policy or policies
covering such loss or damage shall be paid to the City of Miami and the Lessee as
their interests appear, and this Lease shall be deemed terminated and the rent shall
be payable only to the date that said Property is rendered untenantable.
Notwithstanding the above, all insurance proceeds received for loss relating to
furniture, fixtures and equipment and business interruption shall be paid to
Lessee.
Error! Unknown document property name. 16
C. In the event the Property shall be damaged or injured by fire or other
casualty during the term of this Lease and the damages are material (as defined
below), but Lessee elects not to terminate the Lease, Lessee shall provide written
notice to Lessor of its intent not to terminate within ninety (90) days after the date
of such casualty, and repair the damage to the Property and restore the Property to
the same condition as existed before such damage (or to as close as possible to
such condition taking into consideration then applicable building codes and
requirements), and this Lease shall remain in full force and effect. Lessee shall
commence repairs as soon as practicable (but not later than nine (9) months
thereafter without the written consent of the City Manager) and complete such
repairs within a reasonable period of time.
d. For purposes of this Lease, damage to the Property shall be deemed
material if, in Lessee's reasonable judgment, the uninsured cost of repairing the
damage exceeds One Hundred Thousand Dollars ($100,000) for losses as a result
or windstorm, hail and excess flood and Twenty Five Thousand Dollars ($25,000)
as to All Other Perils (AOP). If insurance proceeds are available to Lessee in an
amount which is sufficient to pay the entire cost of repairing all of the damage to
the Property, the damage shall be deemed material if the cost of repairing the
damage exceeds Five Hundred Thousand Dollars ($500,000). Damage to the
Property shall also be deemed material if (a) the Property cannot be rebuilt or
repaired to substantially the same condition it was in prior to the damage due
solely to laws or regulations in effect at the time the repairs will be made, (b) the
holder of any mortgage encumbering the Lessee's leasehold interest in the
Property requires that insurance proceeds available to repair the damage in excess
of Twenty-five Thousand Dollars ($25,000) be applied to the repayment of the
indebtedness secured by the mortgage, or (c) the damage occurs during the last
twelve (12) months of the Lease Term.
e. If Lessee elects not to terminate the Lease as a result of a casualty, but
fails to commence repairs within nine (9) months following the occurrence of the
casualty (without the written consent of the City Manager) then the Lessor, in
addition to all other remedies available by law or in equity as a result of Lessee's
default; shall have the right to treat Lessee's failure to commence repairs as
ID
Error! Unknown document property name. 17
Lessee's election to terminate the Lease, whereupon the proceeds of the insurance
policy or policies covering such loss or damage shall be paid to the Lessor and the
Lessee as their interests appear.
13. Insurance.
See Schedule I attached hereto and made a part hereof.
14. Notices.
Paragraph 27 of the Lease is hereby amended to read as follows:
27. Notices.
All notices shall be sent to the parties at the following addresses:
LESSOR: The City of Miami, Florida
City Manager
300 Pan American Drive
Miami, FL 33133
With copy to:
Emla
City of Miami
City Attorney
444 SW 2 Avenue, 9th Floor
Miami, FL 3 313 0
Director of Public Facilities Department
444 SW 2 Avenue, 3rd floor
Miami, FL 33130
LESSEE: Biscayne Bay Restaurant Corporation
8191 East Kaiser Boulevard
Anaheim, CA 92808
Attention: President
With copy to:
Same Address
Attention: General Counsel
Lessor or Lessee may change such addresses at any time upon giving the
other party at least ten (10) days prior written notification.
All notices under this Lease must be in writing and shall be deemed to be
served when delivered to the address of the addressee. All notices served by mail
shall be registered or certified mail, return receipt requested.
Lessee may designate additional persons for notification of default.
Error! Unknown document property name. 18
15. Capital Improvements
A new Paragraph 34 is hereby added to read as follows:
34. Capital Improvements.
A. Lessee's Coital Improvements. In consideration of Lessor's entering into
this Amendment, Lessee has agreed to construct the Required Capital
Improvements. Lessee agrees to complete the Required Capital
Improvements in three (3) phases as more particularly described on
Exhibit `B". The parties have further agreed that certain additional
rn
optional capital improvements may be constructed by Lessee on the
Property as described in Exhibit `B" (the "Optional Capital
Improvements"). The Required Capital Improvements and the Optional
Capital Improvements are collectively referred to as the "Lessee's Capital
Improvements". Lessor acknowledges and agrees that any applications for
permits for the Baywalk (to be completed as a Required Capital
Improvement) shall be made by Lessee with the Lessor as the named
applicant or co-applicant, as required by law. Lessee agrees to make
such changes to the Baywalk permit applications as may be necessary to
obtain the Baywalk permits.
The work described in each of the items listed as numbers 1
through 6 in Phase I, 1 on Phase II, 1, 2 and 3 in Phase III and 1 and 2 of
the Optional Capital Improvements, as described in Exhibit B,", shall be
referred to herein as a "Project". Subject to Lessee receiving Lessor's
approval pursuant to Paragraph 343. below and all necessary approvals
and permits from all applicable Governmental Authorities, on a Project-
by-Project basis, Lessee shall cause to be constructed and/or installed the
Required Capital Improvements. Lessee agrees that the total aggregate
cost of the Phase I Required Capital Improvements shall be not less than
Three Million Dollars ($3,000,000), including costs of permits,
architectural, engineering and other professional fees and related costs.
B. Plans and Specifications. Lessee shall furnish plans and drawings for the
Lessee's Capital Improvements to the City Manager or his designee for
approval. The City Manager's approval shall not be unreasonably
Error! Unknown document property name. 19
conditioned, delayed or withheld, and shall be communicated by the City
Manager or his designee to Lessee within fifteen (15) days after Lessee's
submittal of the applicable plans and drawings. The plans and drawings
shall be prepared by a licensed architect and in sufficient detail to obtain a
building permit from the City of Miami.
C. Completion of Lessee's Cqpital Improvements. Lessee shall apply for,
and shall use good faith diligent efforts to obtain, all applicable permits for
the Phase I and Phase II Required Capital Improvements within twelve
(12) months after the Execution Date. With respect to the Phase II
Required Capital Improvements, and provided Lessee has applied for, and
has used good faith diligent efforts to obtain, such permits within the time
stipulated herein, Lessor agrees to extend the time in which to obtain such
permits for such time period as is reasonably necessary to obtain any
required permits from the U.S. Army Corps of Engineers, the Florida
Department of Environmental Protection, the South Florida Water
Management District and/or the Miami -Dade County DERM Coastal
Resources Section for any portion of the Lessee's Required Capital
Improvements that will extend beyond the mean high water line or that
may impact coastal wetlands. Lessee agrees that Lessee will periodically
(at least once every 4 months from the Execution Date) provide the Lessor
with documentation evidencing that Lessee and its agents are making
consistent and substantial progress in the permitting process, and Lessor
agrees that so long as Lessee demonstrates that Lessee or its agents are
making consistent and substantial progress in the permitting process,
Lessee's date for obtaining the permits and for completion of the Phase II
Required Capital Improvements shall be appropriately extended.
Notwithstanding the foregoing, Lessor expressly ackriowledges and agrees
that the Phase III Required Capital Improvements cannot be completed
until such time as the Lessee is provided with alternative dedicated
parking on Virginia Key that can accommodate the required parking that
will be lost as a result of the Required Capital Improvements. For this
reason, Lessee shall not be required to commence construction of the
Error! Unknown document property name. 20
IN
Phase III Required Capital Improvements until the New Parking Facility
described in Section 16 of this Amendment, creating a new Paragraph 35
of the Lease, is substantially completed. In the event the New Parking
Facility is not built, then Lessee shall have no obligation to construct the
Phase III Required Capital Improvements. Lessee shall obtain applicable
permits for, and complete the Phase III Required Capital Improvements,
within six (6) months after the New Parking Facility has been substantially
completed and is available for Lessee's use, as evidenced by a Temporary
Certificate of Occupancy (TCO), or a Certificate of Occupancy (CO), if no
TCO is issued, or a certificate of completion, if no CO is required. With
respect to the Phase I Required Capital Improvements, Lessee shall
substantially complete construction of each Project in an expeditious
manner but no later than twelve (12) months of obtaining a building
permit for each such Project, but in no event later than two (2) years from
the Execution Date. With respect to the Phase II Required Capital
Improvements, Lessee shall substantially complete the same in an
expeditious manner, subject to the extensions allowed for obtaining
permits in this Section 34.C., but no later than twelve (12) months of
obtaining a building permit.
Performance Bond. As assurance for the faithful and timely performance
and construction of the Lessee's Capital Improvements, Lessee shall, prior
to commencement of construction of each Project in excess of $200,000,
furnish Lessor a bond (or such alternate fonn of security, such as a letter
of credit, as may be approved by Lessor) in the amount of 100% of the
cost of each Project. 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 Project of Lessee's Capital Improvements as evidenced by
providing final release of liens, the issuance of a TCO, or a CO, if no
TCO is issued; or a certificate of completion if no CO is required.
Error! Unknown document property name. 21
16. New Parking Facilitv:
A new Paragraph 35 is hereby added to read as follows:
35. New Parking Facilitv.
A. The New Parking Facility. Lessor expressly acknowledges and agrees
that Lessee shall have no obligation to undertake any of the Phase III
Required Capital Improvements unless and until a new parking facility is
constructed, and at least 220 parking spaces within such facility are
available for Lessee's use at no cost to Lessee, during the remaining term
of the Lease. The 220 parking spaces must be able to be accessed by the
Lessee over a direct roadway between the Rusty Pelican and such new
parlung facility that does not require the Lessee to access the
Rickenbacker Causeway (the "New Parking Facility"). The location of
the New Parking Facility and the access road between the New Parking
Facility and the Rusty Pelican are as shown on Schedule 2 attached hereto.
B. Construction and Operation. If the Lessor elects to construct, or cause to
be constructed, the New Parking Facility, then it shall be constructed,
operated and maintained solely by the Lessor, RMPA (as hereinafter
defined), or some other entity, in Lessor's sole discretion, and Lessee shall
have no obligation to operate, repair or maintain the New Parking Facility.
Lessee acknowledges that Lessor intends to assign its obligations to
construct the New Parking Facility under this Paragraph 35 to MPA, as
provided in Sub -paragraph D. below, and upon Lessor's assignment and
MPA's assumption of all of Lessor's obligations to construct the New
Parking Facility in accordance with the terms of this Amendment, Lessee
agrees to recognize that MPA may perforin Lessor's obligations with
respect to the New Parking Facility under the terms of this Amendment.
C. Construction Contribution. In order to facilitate construction of
the New Parking Facility, Lessee agrees to contribute to the Lessor the
amount of $4;000,000.00 (the "Construction Contribution"), which
represents 66.5% of the estimated cost of construction of the New Parking
Facility. Lessor agrees to provide Lessee with copies of any documents or
drawings prepared for Lessor as part of the design and construction
Error. Unknown document property name. 22
process for the New Parking Facility, together with any other
documentation reasonably requested by Lessee related to the design and
construction of the New Parking Facility. Lessor further agrees that in
consideration of Lessee's agreement to make the Construction
Contribution, Lessor will seek Lessee's input with respect to the design,
layout, location, ingress, egress and access to the New Parking Facility
and Lessor agrees to take Lessee's requested revisions into consideration
in the finalplans and specifications for the New Parking Facility. The
Construction Contribution will be paid by Lessee to Lessor in installments
as set forth below. Lessee acknowledges and agrees that its failure to pay
the Construction Contribution, as herein provided, shall be a default by
Lessee under the Lease.
(a) The first installment of the Construction Contribution (up to
$240,000) shall be used by the Lessor to pay for the costs to design the
New Parking Facility and for pre -development costs (the "Soft Costs
Installment"). Lessee shall pay the Soft Costs Installment to Lessor within
ten (10) business days of its receipt of Lessor's written request for the Soft
Costs Installment and Lessor may request such payment at any time after
the Execution Date. Lessor acknowledges and agrees that Lessor will use
the Soft Costs Installment solely to reimburse any third party design
professionals retained by the Lessor for the design of the Nein Parking
Facility and for pre -development costs, including the cost of
environmental testing and remediation, if any.
(b) The remaining installments of the Construction Contribution (the
"Construction Installments") shall not be due and payable by Lessee until
Lessee receives Lessor's written confirmation ("Lessor's Written
Confirmation") that: (i) the design of the New Parking Facility has been
completed, (ii) Lessor has identified funds available for the construction of
the New Parking Facility and (iii) Lessor intends to start construction of
the New Parking Facility within one hundred twenty (120) days from the
date of the written confirmation. Lessor agrees that it will also deliver to
Lessee such reasonable supporting documentation as may be requested by
Error! Unknown document property name. 2 33
Lessee to document that Lessor has met the conditions for the
Construction Installments as set forth in the preceding sentence.
(c) Lessee agrees to pay the Construction Installments in accordance
with the Virginia Key Parking Draw Down Schedule attached hereto as
Schedule 4 (the "Draw Down Schedule"). The amount of each payment
by Lessee to Lessor shall be based upon the actual costs then incurred by
Lessor for the construction of the New Parking Facility ("Disbursements")
and no Disbursement shall exceed the applicable monthly amount set forth
in the Schedule for the Disbursement for the month in question. In the
event that the actual cost to construct the New Parking Facility is less than
$6,000,000.00, Lessee's acknowledges that its contribution shall not be
reduced. Instead, the difference between Lessee's Construction
Contribution and 66.5% of the actual cost of the construction of the New
Parking Facility shall be paid by Lessee as its last instalhnent of the
Construction Contribution, and shall be placed by Lessor in an account for
the maintenance of the New Parking Facility. Lessee shall not be required
to make more than one Disbursement during any one calendar month.
(d) Lessee agrees to make a requested Disbursement not later
than ten (10) business days after Lessor delivers to Lessee a written
certificate (the "Certificate") from the architect selected by the Lessor to
design the New Parking Facility (the "Architect") setting forth, with
respect to each request for disbursement:
(i) the amount of the Disbursement being applied for;
(ii) the previously requested amounts;
(iii) the estimated amounts remaining to complete the New
Parking Facility;
(iv) the percentage of the New Parking Facility that has been
completed as of the date of the request;
(v) a statement that all amounts previously disbursed and
currently requested have been or will be disbursed by the
Lessor in .a timely manner solely in payment of costs
associated with the New Parking Facility;
Error! Unknown document property name. 24
(vi) a statement that the sum then requested is payable to the
contractors, subcontractors, materialmen, engineers,
architects or others who have rendered or furnished
services or materials for the New Parking Facility;
(vii) a statement that no work performed or materials supplied
for the New Parking Facility which is the basis for the
current Disbursement request has been the basis for any
previously paid Disbursement;
(viii) a statement that in the opinion of the Architect and/or
Contractor, the New Parking Facility can be substantially
completed in accordance with the budget and by the
completion date set forth in the Schedule, as same may be
extended by change orders or events of Force Majeure;
(ix) a statement that there have been no material changes to the
scope of work for the New Parking Facility;
(x) a statement that the representations and warranties made in
the Disbursement request are true and correct as of the date
made;
(xi) in reliance on lien waivers received, full payment has been
made of all obligations incurred by the Lessor to
contractors, workmen and materialmen for and with respect
to all work and materials supplied through and including
the date of the last Disbursement request, except for the
amount of any customary retainage being withheld; and
(xii) for all dollar amounts requested in the Disbursement
request, an invoice or a copy of an invoice as backup.
Lessor expressly acknowledges and agrees that in the event that a New Parking
Facility is not open for Lessee's use within three (3)) years from the date that
Lessee delivers the first of the Construction Installments to Lessor, that Lessor
shall be in default under the Lease and Lessee shall have the right to file suit
against Lessor for such default.
Error! Unknown document property name. 25
Lessor agrees that at the same time that Lessee makes the first Construction
Installment payment to Lessor, Lessee may file, in the Public Records of Miami -
Dade County, Florida, a notice of Lessee's interest to use at least 220 parking
spaces in the New Parking Facility at no charge to Lessee during the term of the
Lease. The notice to be recorded shall be substantially in accordance with the
form of notice attached as Schedule 5 hereto.
(e) Lessor agrees to complete construction of the New Parking Facility within
three (3) years from the date that Lessee delivers the first of the Construction
Installments to Lessor. Lessee acknowledges and agrees that at any time during
the term of this Lease but subsequent to the date of Lessor's Written
Confirmation, upon Lessor's written request, Lessee will provide Lessor with
reasonable evidence that Lessee has funds available to make the Construction
Contribution required under the Lease. Lessee further acknowledges and agrees
that Lessee's failure to make any of the installment payments for the Construction
Contribution in accordance with the terms of this Section 35 shall be a default by
Lessee under the Lease. Lessor further acknowledges and agrees that
notwithstanding anything to the contrary contained in the Lease or in this Section
35 to the contrary, in the event that Lessor has not commenced construction of a
New Parking Facility pursuant to a full building pemlit within ten (10) years after
the Execution Date, Lessee shall have no obligation to pay any portion of the
Construction Contribution to Lessor.
(f) Lessor agrees that in the event Lessor constructs another parking
facility in a location that is closer to the Rusty Pelican than the New Parking
Facility (a "Closer Parking Facility"), the Lessee shall have the option to transfer
its right to use 220 parking spaces in the New Parking Facility (or some portion
of the 220 parking spaces) to the Closer Parking Facility, when the Closer Parking
Facility is completed and Lessee shall be entitled to use 220 parking spaces (or
the portion of its 220 parking spaces that are transferred to the Closer Parking
Facility) at no charge to Lessee. Lessee shall exercise this right to transfer the use
of parking spaces to the Closer Parking Facility at no charge to the. Lessee not
Error! Unknown document property name. 26
later than 90 days after Lessee's receipt of Lessor's written notice offering spaces
in the Closer Parking Facility.
D. Assianment of Lessor's R.iahts and Obligations under this Paragraph 35.
Lessee acknowledges Lessor's intent to assign all of Lessor's rights and
obligations under this Paragraph 35, including, without limitation, the right to
receive Lessee's Construction Contribution, (the "Assignment") to the
Department of Off -Street Parking of the City of Miami (MPA) and upon Lessor's
assignment and MPA's assumption of all of Lessor's obligations to construct the
New Parking Facility in accordance with the terms of this Amendment, Lessee
agrees to recognize that MPA may perform Lessor's obligations with respect to
the New Parking Facility under the terms of this Amendment.
17. State Approval.
A new paragraph 36 is hereby added as follows:
36. State Approval.
Lessor and Lessee 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.
Lessee agrees to use good faith diligent efforts to obtain from the State of Florida
a finding of compliance with the deed restriction or a waiver of compliance with
such deed restriction ("State Approval"). The date of issuance of the State
Approval is referred to herein as the "Effective Date". Lessee acknowledges that
if the State Approval is not obtained within one (1) year following the Execution
Date, unless otherwise extended by the City Manager, as hereinafter provided,
then the term of the Lease shall expire on October 1, 2012, The City Manager
may extend the one (1) year period in which to obtain State Approval, in its
reasonable discretion, by two (2) additional periods of six months each.
18. Safe .
A new paragraph 37 is hereby added as follows:
37.
Safety.
Lessee will allow City inspectors, agents or representatives the ability to monitor
its compliance with safety precautions as required by federal, state or local laws,
Error! Unknown document property name. 27
rules, regulations and ordinances. By performing these inspections the City, its
agents, or representatives are not assuming any liability by virtue of these laws,
rules, regulations and ordinances. Lessee shall have no recourse against the City,
its agents, or representatives from the occurrence, non-occurrence or result of
such inspection(s).
19. Americans With Disabilities Act.
A new paragraph 38 is hereby added to read as follows:
38. Americans With Disabilities Act.
Lessee shall affirmatively comply with all applicable provisions of the Americans
with Disabilities Act ("ADA") in the course of providing any work, labor or
services funded by the City including Titles I and Il of the ADA (regarding
nondiscrimination on the basis of disability) and all applicable regulations,
C) and standards. Additionally, Lessee shall take affirmative steps to
ensure nondiscrimination in employment of disabled persons.
20. Force Majeure.
A new paragraph 39 is hereby added to read as follows:
39. Force Majeure.
In the event that the ability of the parties hereto to perform their respective
obligations under this Lease are rendered impossible or impractical by acts of God
(including fire, flood, hurricane, windstonn, and/or earthquake), war, civil unrest
or strife, terrorist acts or threats, or labor shortage, walkouts, unrest or stoppages
and other conditions or causes beyond such party's reasonable control ("Force
Majeure"), then the time or times for the performance of the obligation so affected
(except for the payment of rent) shall be extended for such time until such Force
Majeure condition ceases, provided, however, that either party shall have the right
to terminate the Lease in the event that a Force Majeure condition delays
performance of the Lessee's obligation to complete the Phase I Required Capital
Improvements by a period in excess of one (1) year, or in the event that a Force
Majeure condition delays perforinance by either party of any other obligation
hereunder so affected by a period in excess of three (3) years.
Errorl Unknown document property name. 28
21. No Defaults.
Lessor and Lessee hereby acknowledge and agree that neither is aware of any existing
defaults by reason of any act or omission on the part of the other party under the Lease and that
each party has fulfilled all of its duties and obligations under the Lease to date.
22. Counterparts.
This Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but all together of which shall constitute one and the same document.
23. Amendment.
Lessor and Lessee acknowledge and agree that except as specifically modified hereby, all
of the provisions of the Lease which are not in conflict with the terms of this Amendment shall
remain in full force and effect.
24. Additional Parking
Commencing on the Execution Date through the completion of construction of the New
Parking Facility, Lessor shall make available for use by the Lessee, (i) 50 parking spaces within
the Rickenbacker Marina site and (ii) 60 parking spaces at the Miami Marine Stadium site (the
"Additional Parking Spaces"). The Additional Parking Spaces shall be located generally in the
areas identified on the Sketch attached as Schedule 3 hereto. In the event the New Parking
Facility is not constructed, Lessor agrees to continue to provide such number of Additional
Parking Spaces as may be at that tune required by applicable law to accommodate any parking
lost as a result of Lessee's Required Capital Improvements, if any. The Lessor acknowledges
and agrees that the Lessee's ability to commence construction of the Public Baywalk portion of
the Required Capital Improvements is expressly conditioned upon the Lessor's making the
Additional Parking Spaces available for Lessee's use. In the event that such Additional Parking
Spaces are not available for Lessee's use at any time after the Execution Date, Lessee's
obligation to complete the Public Baywalk portion of the Required Capital Improvements shall
be extended for a reasonable and equitable period of time, taking into consideration the length of
the delay in the construction of the Public Baywalk resulting from the fact that such Additional
Parking Spaces were not available to Lessee, but at a minimum, at least one day of extension for
each day that the Additional Parking Spaces are not available for Lessee's use.
Errorf Unknown document property name. 29
above written.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first
"LESSOR"
Attest: CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Priscilla A. Thompson Pedro G. Hernandez, City Manager
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
By:
LeeAnn Brehm, Director Julie 0. Bru,
Risk Management Department City Attorney
"LESSEE"
BISCAYNE BAY RESTAURANT
Attest: CORPORATION
By: By:
Howard Bell, CEO
Print Name and Title Date
Date
Error! Unknown document property name. 30
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Commence at the southeast corner of Section 17, Township 54 South, Range 42
East; thence run north 89° 56' 49.5" west for a distance of 2,649.84 feet, more or less, to
a point of intersection with the center line of Rickenbacker Causeway as shown in Plat
Book 74, at Page 9, Sheet 2, of the Metropolitan Dade County Bulkhead Line; thence run
north 45° 22' 07" west along said center line of Rickenbacker Causeway and its
northwesterly prolongation thereof for a distance of 4,700.21 feet to a point; thence run
north 44° 37' 53" east for a distance of 520.00 feet to the Point of Beginning of the
hereinafter described tract; thence run north 45° 22' 07" west for a distance of 1024.4 feet
to a point; thence run north 44° 06' 48" east for a distance of 250.00 feet to a point;
thence run south 45° 22' 07" east for a distance of 1026.66 feet to a point; thence run
south 44° 37' 53"' west for a distance of 250.0 feet to the Point of Beginning.
EXHIBIT "B"
REQUIRED CAPITAL IMPROVEMENT'S:
Phase I:
1. Vista Point construction.
2 New Banquet Room and other space totaling approximately 4,500 SF of Gross
A/C Space.
3. Exterior Improvements.
4. Interior Improvements.
5. Public Baywalk, at grade connected to Vista Point (North side of the Parking
Lot) and continuing around the Building (as shown on Exhibit B -I hereto) and
subject to the terms of Section 23 of the Lease Amendment.
6. Reconfigured Existing Parking Lot.
All as more particularly described in the plans for the Phase I improvements attached
hereto as Exhibit B -I hereto.
Phase II:
1. Extension of Public Baywalk around the Building as more particularly
described in the plans for the Phase II improvements attached as Exhibit B -II
hereto and any other portion of the Phase I improvements that may require Lessee
to obtain permits from the U.S. Army Corps of Engineers, the Florida Department
of Environmental Protection, the South Florida Water Management District
and/or the Miami -Dade County DERM Coastal Resources Section.
Phase III (Pending City Providing Alternate Structure Parking):
1. Lessee participation/investirnent in new parking structure, subject to the terms
of Section 34.E. of the Lease Amendment.
2. Reconfigured Parking Lot with enhanced green space, as per plan,
3. Extension of Public Baywalk at grade (South Side of the Parking Lot).
All as more particularly described in the plans for the Phase III improvements attached as
Exhibit B -III hereto.
OPTIONAL CAPITAL IMPROVEMENTS:
1. Ceremony Deck - (Fixed or Floating)
2. Water Taxi Dock (2 Slips)
All as more particularly described in the drawings for the Optional Capital
Improvements attached as Exhibit B -IV hereto.
EXHIBIT "B -I"
Phase I Required Capital Improvements
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EXHIBIT "B -III"
Phase III Required Capital Improvements
Exhibit "B -III"
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RUSTY PELICAN RESTAURA
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EXHIBIT "B -IV"
Optional Capital Improvements
SIGNAGE
XTER'lu"'R"' E*/4"ESIGN
Schedule I
Paragraph 21 of the Lease is hereby amended to read as follows:
21. Insurance.
A. At all times during the Lease Term, Lessee shall, at Lessee's sole cost and
expense but for the benefit of Lessor and Lessee as their interests may appear, maintain in
full force and effect the following insurance:
1. Property Insurance. Lessee shall submit to the City a certificate of
insurance affording coverage for Real and Personal Property insuring
against "All Risk" of directphysical loss or damage, including, but not
limited to the perils of windstorm, hail, earthquake and flood, if
commercially available. In addition, the certificate must provide coverage
for debris removal, law and ordinance coverage to include coverage for
loss or undamaged portion of the building, demolition costs and increased
costs of construction, mold coverage, if commercially available, sprinkler
leakage, equipment breakdown/boiler and machinery protecting against
costs of repairing or replacing a broad range of equipment, technology and
machinery essential to the operation of the lessee, as well as business
interruption and extra expense, along with coverage for extended Business
Income for a period of at least 180 days and contingent business income, if
applicable, written on an adequate monthly limit of indemnity, actual loss
sustained, or agreed value, whichever is broader, to insure payment of all
operating expenses, including payroll, during the period of restoration or
extended period of indemnity.
All property coverage must be written on a replacement cost basis and no
coinsurance provisions.
Deductibles are as follows: All Other Perils up to $25,000. Wind and Hail
will be subject to a maximum of 3%, with a minimum deductible of
$100,000, if commercially available, and up $100,000 deductible on
Excess Flood, if commercially available,
The City of Miami shall appear listed as named insured/additional insured
and loss payee on the property certificate. The cancellation provision
should read (30) days, (10) for non payment of premium.
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
prohibitions such as no replacement cost coverage and/or modifications to
"deductibles", and Lessor agrees to accept such policies, coverage and/or
modifications as are reasonably commercially available to Lessee.
Adjustments to Amount of Insurance.
V. From time to time during the term of the Lease, Lessor
shall have the right to require Lessee to obtain such additional
insurance or to increase the amount of the coverage required
hereunder so that that it is substantially similar to the insurance
that is customarily carried by owners or operators of other
comparable restaurant operations in the geographical area of the
Property.
vi. Notwithstanding the Lessor's right to request
increases as set forth in v. above, upon completion of each Phase
of the Lessee's Capital Improvements listed on Exhibit "B"
hereto, the Lessee shall increase its property insurance to reflect
the increased replacement cost of the Improvements and shall
obtain additional windstonn and flood insurance in the same ratio
to building and content value in effect at the time of execution of
the amendment, subject to the limitations set forth in Paragraph
A(1)(1v) above.
vii. Notwithstanding the above, unless expressly waived
in writing by the City Manager, commencing on September 1,
2013 and every four years thereafter, the replacement cost of the
Insured Property shall be adjusted pursuant to an appraisal
conducted by an insurance appraiser, selected and paid for by the
Lessee, provided that the Lessee shall obtain the Lessor's approval
(which approval shall not be unreasonably withheld, conditioned
or delayed) of the appraiser before commencement of the
appraisal. The appraiser selected by the Lessee shall submit a
written report of the appraised replacement cost to the Lessor and
the Lessee by July 15th in the year of the adjustment. If the Lessor
or the Lessee is not satisfied with this report, the dissatisfied party
shall serve upon the other a notice of dissatisfaction within thirty
(30) days after receipt of the report and parties shall in good faith
attempt to resolve any disputes concerning the appraised
replacement cost. During this period of the dispute, the Lessee
shall continue to maintain insurance in an amount equal to the
greater of the amount determined by the appraiser or that
maintained before the dispute arose. The Lessee shall procure and
deliver to the Lessor written confirmation from the insurer(s)
evidencing the increase in insurance which may be required to
comply with the provisions above which increase in insurance
shall be effective September 1 of the same year in which the
appraisal is made. For those years in which an appraisal
adjustment is made, there shall be no increase to the insured
amounts pursuant to section v. above.
B. Other Insurance To Be Carried.
Lessee shall also, at Lessee's sole cost and expense but for the mutual
benefit of Lessor (with Lessor being named as an additional insured thereunder)
and Lessee, maintain the following insurance:
1. CGL Insurance- The lessee shall provide the City with a
certificate of insurance with respect to Commercial General Liability
affording coverage against all claims demands, or actions as a result of
bodily injury or property damage occurring in or about the property. The
certificate must include coverage and protect against exposures such as
premises and operations liability, contingent liability, contractual liability,
products and completed operations, and personal and advertising liability
with limits of $1,000,000 per occurrence, with a $2,000,000 aggregate
limit . The coverage must be written on a primary and non contributory
basis, and must include the City as an additional insured pursuant to
endorsement CG 2010 (11/85), or its equivalence. Waiver of subrogation
must be included in favor of the City. In addition, the certificate must
include coverage for liquor liability with limits of at least $2,000,000.
However, Lessee is granted permission to use the umbrella excess for
additional limits if underlying policy contains $1,000,000 limits. The
certificate should have a maximum deductible of $25,000, and must reflect
(30) days on the cancellation provision, except for (10) days for
nonpayment of premium.
2. Automobile Liability- The lessee shall provide the City
with a certificate of insurance including coverage for all owned, hired and
non owned autos with a combined single limit of $1,000,000, including
coverage for employees as insureds, and further listing the City as an
additional insured. The certificate must reflect (30) days on the
cancellation provision, except for (10) days for nonpayment of premium.
3. Workers' Compensation- The lessee shall provide workers'
compensation and occupational disease in accordance to Florida Law. The
certificate must specify coverage for employer's liability as follows:
$1,000,000 each accident, each employee, $1,000,000 disease each
employee, $1,000,000 disease policy limit. The City will only appear as
certificate holder on this coverage. The certificate must include (30) days
on the cancellation provision, except for (10) days for non payment of
premium.
4. Umbrella Policy- The lessee shall maintain in force an
umbrella policy, and provide the City with a certificate of insurance on
this coverage with limits of $10,000,000 per occurrence, $10,000,000
aggregate limit. The umbrella must be issued on an excess follow form, or
true excess follow form, or true umbrella form, and must include the City
as an additional insured. The cancellation provision must read (30) days,
except for (10) days non payment of premium.
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
Lessee. 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
(including foundations and pilings of the restaurant building), 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 buildings on the Property or Installation Floaters coverage.
3. E & 0 Coverage. Lessee shall cause all of the key or
primary professionals retained by it in connection with any construction
(e.g., architects and engineers) to procure Professional Liability/Error's &
Omissions Coverage ----errors and omission coverage reasonably
satisfactory to Lessee for Lessee's and Lessor's benefit, in such amounts
as are customarily carried by such professionals in Miami -Dade County,
Florida. As of the Execution Date, One Million Dollars ($1,000,000) in
coverage is per claim/$1,000,000 aggregate is acceptable to Lessor. The
certificate must specify retro date of coverage and must list the City as
certificate holder only.
4. m 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.
5. Other Coverage. In the event that any other type of
legislation may be enacted imposing special liability upon Lessor or
Lessee by virtue of Lessee use of the Property for any special purposes,
before Lessee shall so use the Property and/or the improvements or any
part of it for such purposes, Lessee 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 Lessee and naming Lessor as additional
insured.
6. Amendment to Coverage. The Lessor's Director of Risk
Management shall have right to request that Lessee reasonably amend the
herein insurance requirements (so that they substantially conform with the
insurance coverage maintained by other similarly situated property owners
in the vicinity of the Property) by the issuance of a notice in writing to
Lessee at least 90 days in advance of the renewal date on the insurance
policy in question. Such amended coverage shall be procured by Lessee
no later than the time for renewal and/or procurement of its next insurance
policy.
C. Policies Obtained by Independent Contractors. The lessee 1
shall require its contractors to produce certificates of insurance with coverage
acceptable to the City. The contractor shall include the lessee and the City as an
additional insured on all its liability policies in connection to any work perfornied
by the contractor on behalf of the lessee. The lessee may at its own discretion
provide builder's risk coverage for a construction project, or it may designate the
contractor to do so. The lessee will require contractor to list the City and lessee as
an additional insured on this coverage. Delivery of Insurance
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) Delivery. On or before the Execution Date and then not
less than twenty (20) days prior to the expiration date of any policy
required to be carried pursuant to this Article, Lessee 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
Lessee's obligation to fulfill the insurance requirements herein.
E. Lessor's Right to Obtain. If Lessee fails to pay insurance
premiums when due or to comply with other insurance requirements set forth in
this Lease, 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 Lessee in which event the amount of the premium
paid shall be paid by Lessee 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 payment by the City. Lessee's failure to
procure insurance shall in no way release Lessee from its obligations and
responsibilities as provided hereof. Unless there would ensue a lapse of coverage,
Lessor shall, before making any such advance, provide Lessee with thirty ('10)
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 'W". 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, Lessee shall provide
photocopies of receipts showing the payment of premiums for all insurance
policies required to be maintained by this Lease.
G. Waiver of Subrogation
i) Mutual Waiver. Each Parry 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.
H. Blanket Policies. Notwithstanding anything to the contrary contained
herein, Lessee shall have the right to provide insurance coverage pursuant
to blanket policies obtained by Lessee provided such blanket policies
expressly afford coverage required by this Section 21.
Schedule 2
[Location of New Parking Facility and Access Road
from New Parking Facility to Rusty Pelican]
Schedule 3
[Sketch of Location for Additional Parking]
Schedule 3
Schedule 4
[Construction Draw Down Schedule]
Virginia Key Parking
Draw Down Schedule
Project Budget $6,000.000.OTi
Schedule 4
Month
Work Please
Costs
Biscayne Bay
Restaurant Corp.
Marina Tenant
January -2010
Design/Pre-development
_
4.00%
1.00°l0
1.OD%
1.00l
5.00%
10.D0°lo
15M%
20.00%
10.00%
10.00%
8.00%
5m%
10.00%
$ 240,000.00
$ 160,000 00
$ 80,000.00
February -2010
RFPIPermitting
$� 60,000.00
$ 40,000 00
$ 20,000.00
March -2010
RFP/Permitting
$0,000.00_
$ ,
$
April -2010
RFP/Permittin _
�
77 60,000.00
$ 40,000.00
--_----20,000-.00
$ 0,000.00-
May -2010
Construction
$, 300,000.00
$ 200,000.00
$ 100,000.00
June -2010
Construction
$ 600,000.00_
$ 400,000.00
$ 200,000.00
J July -2010
Construction
$ 900,000.00
$ 600,000.00
$ 300,000.00
August -2010
Construction
_
$� 1,200,000.00
$ 800,000.00
$ 400,000.00
September -2010
Construction
$ 600,000.00
$ 400,000.00
$ 200,000.00
October -2010
Construction
$ 600,000.00
$ 400,000.00
$ 200,000.00
November -2010
Construction
$ 480,000.00
$ 320,000.00
$ 160,000 00
December -2010
Construction
$ _ v 300,000.00
$ 200,000.00
$ 100,000.00
January -2011
Construction & Retainage
$ 600,000.00
$ 400,000.00
$ 200,000.00
Total Estimated Expenses
100.00%
$ 6,000,000.00
$ 4,000,000.00
$ 2,000,000.00
Schedule 5
[Form of Notice of Parking Rights]
This instrument prepared by or under the supervision of
Name: Michael T. Lynott, Esq.
Address: Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131-3261
MEMORANDUM OF NOTICE OF PARKING RIGHTS
THIS MEMORANDUM OF NOTICE OF PARKING RIGHTS is made and entered
into this day of 20_, by and between the CITY OF MIAMI, a municipal
corporation of the State of Florida ("Lessor"), and BISCAYNE BAY RESTAURANT
CORPORATION, a Florida Corporation, a wholly owned subsidiary of Specialty
Restaurants Corporation, a California corporation, d/b/a Rusty Pelican ("Lessee").
►11,13si-�l_�:I�
A. Lessor is the owner of that certain real property located in Miami -Dade County,
Florida, (the "Property") where the parking garage referenced in the Lease dated February 13,
1970, as amended (the "Lease"), will be constructed, which Property is more particularly
described in Exhibit "A" attached hereto and by this reference made a part hereof.
B. Lessor and Lessee are the parties to the Lease.
C. The Lease provides that in exchange for the Lessee's making certain monetary
contributions to the Lessor- (or to its municipal parking authority) toward the construction of a
parking garage facility on the Property, that Lessee shall be entitled to use a minimum of 220
parking spaces in such parking facility at no charge to Lessee during the term of the Lease (the
"Parking Rights").
C. Lessor and Lessee desire to place all persons to whom these presents may come
upon notice of the existence of the Lease and the Parking Rights.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee
agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein by
reference.
2. All persons are hereby placed on notice of the existence of the Lease and the
Parking Rights.
3. The initial term of the Lease expires on October 1, 2012, The Lease provides for
an extension until October 1, 2027, and also contains two (2) additional options to extend for five
(5) years each, the last of which will expire on October 1, 2037.
4. The rights of Lessee as a tenant under the Lease (including the Parking
Rights) and this Memorandum shall expire for all purposes and be of no further force and
effect either upon_ (i) the expiration of the term of the Lease, together with all applicable
extension periods. or (ii) the recording of a written instrument terminating or releasing this
Memorandum; executed by both Lessor and Lessee whichever is earlier. Upon such
termination, no person who comes upon these presents shall be charged with any notice of
the provisions hereof.
5. The terms of this Memorandum may only be modified or amended by an
instrument in writing, fully executed by Lessor and Lessee.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Memorandum to be executed as
of the day and year first above written.
Signed, sealed and delivered
in the presence of:
Witness:
Print Name:
Witness:
Print Name:
Witness:_
Print Name:
Witness:
Print Name:
"LESSOR"
CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Pedro G. Hernandez, City Manager
"LESSEE"
BISCAYNE BAY RESTAURANT
CORPORATION, a California
corporation
Bv:
Howard Bell, CEO
STATE OF
SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2009, by Pedro G. Hernandez as the City Manager of the City of Miami, a
municipal corporation of the State of Florida, on behalf of the City. He is personally known to
me or has produced as identification and did take an oath.
Name:
Notary Public, State of Florida
My Commission Expires:
No.:
[NOTARIAL SEAL]
STATE OF )
SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2009, by Howard Bell, as the CEO of Biscayne Bay Restaurant
Corporation, a California corporation, on behalf of the corporation. He is personally known to
me or has produced as identification and did take an oath.
My Commission Expires:
No.:
Name:
Notary Public, State of
Commission
[NOTARIAL SEAL]