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Resolution: R-09-0482
File Number: 09-01004 Final Action Date: 10/8/2009
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 3 TO THE
LEASE AGREEMENT BETWEEN THE CITY OF MIAMI ("CITY") AND BISCAYNE
BAY RESTAURANT CORPORATION (D/B/A RUSTY PELICAN) ("LESSEE"), IN
SUBSTANTIALLY THE ATTACHED FORM, ("AMENDMENT"), TO PROVIDE FOR:
(1) AN EXTENSION OF THE BASE TERM TO EXPIRE ON OCTOBER 1, 2027
WITH TWO (2) FIVE-YEAR OPTIONS TO RENEW, COMMENCING ON THE
EFFECTIVE DATE OF THE AMENDMENT; (2) AN INCREASE IN BASE RENT
FROM $48,000 TO $360,000 ANNUALLY, COMMENCING ON THE EXECUTION
DATE OF THE AMENDMENT; (3) AN INCREASE IN PERCENTAGE RENT UPON
THE EARLIER OF (I) COMPLETION OF THE PHASE I REQUIRED CAPITAL
IMPROVEMENTS OR (II) TWENTY-FOUR MONTHS AFTER ISSUANCE OF THE
FIRST BUILDING PERMIT FOR PHASE I, TO 7% OF GROSS REVENUES FROM
$0 - $12,000,000 ANNUALLY, 8% OF GROSS REVENUES OVER $12,000,000
ANNUALLY, AND 8.5% OF GROSS REVENUES ANNUALLY THEREAFTER
DURING ANY RENEWAL PERIODS; (4) LESSEE'S CONSTRUCTION OF CERTAIN
CAPITAL IMPROVEMENTS, AT A COST OF NOT LESS THAN $3,000,000
INCLUDING SOFT COSTS; (5) LESSEE'S CONTRIBUTION OF $4,000,000
TOWARD THE COST OF CONSTRUCTION OF A NEW PARKING FACILITY; (6)
THE CITY'S RIGHT TO ASSIGN ALL OF ITS RIGHTS AND OBLIGATIONS
RELATING TO THE CONSTRUCTION OF THE NEW PARKING FACILITY TO THE
DEPARTMENT OF OFF-STREET PARKING ("MPA"); INCLUDING THE RIGHT TO
RECEIVE LESSEE'S CONSTRUCTION CONTRIBUTION AND LESSEE'S
CONSENT TO SAID ASSIGNMENT UPON MPA'S ASSUMPTION THEREOF, ALL
AS MORE PARTICULARLY SET FORTH IN THE AMENDMENT; FURTHER
AUTHORIZING THE CITY MANAGER TO EXECUTE OTHER DOCUMENTS AS
MAY BE REQUIRED TO IMPLEMENT THE AMENDMENT.
WHEREAS, the City of Miami ("City") and Biscayne Bay Restaurant ("Lessee") entered into a
Lease Agreement dated February 13, 1970 (the "1970 Lease Agreement") whereby the City leased to
Lessee the City -owned property located at approximately 3201 Rickenbacker Causeway, Miami,
Florida (the "Property"), for the development and operation of a first class waterfront restaurant now
known as the Rusty Pelican Restaurant (the "Rusty Pelican"); and
WHEREAS, the 1970 Lease Agreement has been amended by Supplemental Lease
Agreement dated July 23, 1970, Amendment No. 1 to Lease Agreement dated May 28, 1982,
City of Miand Page I of 3 File Id. 09-01004 (Version: 1) Printed On: 7/3/2017
File Number: 09-01004 Enactment Number: R-09-0482
undated Addendum to Lease Agreement authorized by Resolution No. 89-508 adopted by the City
Commission on June 7, 1989, and Amendment to Lease Agreement dated December 18, 2001
(collectively the "Lease"); and
WHEREAS, the term of the Lease, together with the options to renew, expires on October 1,
2012; and
WHEREAS, Lessee requested the City to extend the term of the Lease in order to amortize
the cost of certain capital improvements that the Lessee plans to perform on the Property; and
WHEREAS, on July 24, 2003, the City Commission authorized the submission for
consideration by the electorate of the City, of a ballot question to amend Section 29-B of the City
Charter to authorize the City Commission to amend the Lease to extend the Original Expiration Date
and increase the minimum guarantee to the City; and
WHEREAS, on a special municipal election held on November 4, 2003 the electorate of the
City approved the proposed extension and modification of the Lease;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted
by reference and incorporated as if fully set forth in this Section.
Section 2. The City Manager is authorized{1} to execute Amendment No. 3, in substantially
the attached form, to the Lease between the City and Lessee, to provide for: (1) an extension of the
base term to expire on October 1, 2027 with two (2) five-year options to renew, commencing on the
effective date of the Amendment; (2) an increase in base rent from $48,000 to $360,000 annually,
commencing on the execution date of the Amendment; (3) an increase in percentage rent upon the
earlier of: (i) completion of Phase 1 of the required capital improvements or (ii) twenty-four months
after issuance of the first building permit for Phase 1, to 7% of gross revenues from $0 - $12,000,000
annually, 8% of gross revenues over $12,000,000 annually, and 8.5% of gross revenues annually
thereafter during any renewal periods; (4) Lessee's construction of certain capital improvements at a
cost of not less than $3,000,000 including soft costs, (5) Lessee's contribution of $4,000,000 toward
the cost of construction of a new parking facility, and (6) the City's right to assign all of its rights and
obligations relating to the construction of the new parking facility to the Department of Off -Street
Parking ("MPA"), including the right to receive Lessee's construction contribution and Lessee's
consent to said assignment upon MPA's assumption thereof, all as more particularly set forth in the
Amendment.
Section 3. The City Manager is further authorized{1} to execute the Amendment and such
other documents as may be required implement the Amendment.
Section 4. This Resolution shall become effective immediately upon its adoption and signature
of the Mayor. {2}
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Footnotes:
Enactment Number: R-09-0482
(1)The herein authorization is further subject to compliance with all requirements that may be
imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter
and Code provisions.
(2)lf the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days
from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become
effective immediately upon override of the veto by the City Commission.
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