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HomeMy WebLinkAboutLease Agreemention ent Sect° • e- V 3ne�a�e�e a LEA S E AGREEMENT' THIS LEASE AGREEMENT entered into this 1977, by and between The City of Miami, a municipal corploration of the State of Florida, hereinafter referred to as LESSOR, and Marina Biscayne, Inc., a corporation organized and existing under the laws of the State oL Florida, hereinafter referred to as LESSEE WITNES SET It; WHEREAS,prior to 1961 the City of Miami received several requests from private entrepeneurs for the development of a Marine Stadium on public properties on Virginia Key, The development of such a facility had several functions in that it was to serve as a facility for boat races, boating and water attractions including a variety of shows, andwas to be a significant tourist attraction ; and WHEREAS, in 1961, the City Commission took under advise- ment these various plans and concluded that it would be to the community's advantage to have a marine stadium developed through the City government; and WHEREAS, in 1961 and 62 the City Commission authorized the commissioning of Ralph H. Burke, Inc., Engineers -Architects of Chicago -Park Ridge, Illinois, to develop a master plan feasibility study for a marine stadium to be located on Virginia Key. The master plan, which is on file, recommended the construction of a marine stadium to cover a variety of uses and needs and emphasized that such a marine stadium would be a major tourist attraction; and WHEREAS, the City financed and constructed the marine stadium facility which became available to the public through dedication ceremonies held on December 27, 1963; and WHEREAS, the City of Miami has continuously upgraded the Marine Stadium facility with the objective that it would become a major tourist attraction, whereby improvement items such as a barge, temporary barge cover to hold outdoor shows, design and proposed construction of a permanent barge cover, additional landscaping, a fountain, marquee sign, parking lot lighting, bulkheaded pit area, overhead crane boat hoist, boating ramp launching areas, construction of a special bulkhead slip area to berth the floating stage and other items have been added 'to improve the facility; and WHEREAS, from time to time various interested organiza- tions of the community, such as the Chamber of Commerce, the Marine Council and individual boat owners have recommended programs whereby greater utilization might be made of the Marine Stadium to improve its tourist oriented activities; and WHEREAS, the preceding community organizations, in addi- tion to the City of Miami, recognized a public purpose need to provide additional marina and marina support facilities for boat owners who require dock, dry storage, ramps, fuel and other related support facilities at the Miami Marine Stadium. The City Commission after a number of public hearings, concluded that a marina and marina support facilities were a necessary element at the Marine Stadium; and WHEREAS, it has been deemed by the City Commission of the City of Miami through public meetings, that a marina and Marina support facilities are an allied purpose to the Marine Stadium complex and is required to fulfill the request that the Marine Stadium be classified as a major tourist attraction, and WHEREAS, the City Commission after public calls for marina and marina support facilities development proposals at the Marine Stadium adopted Resolution 77-407 on May 12, 1977 accepting the proposal by Martin Rabin and Henry A. Grady III, partners who will herein be operating through MARINA BISCAYNE, INC., a Florida corporation formed for the development, operation and maintenance of a marina and marina support facilities at the City of Miami Marine Stadium; further.authorizing the City Manager to enter into an agreement for development, operations and maintenance of the facilities at the Marine Stadium. NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained , the parties hereto covenant and agree as follows: 1. DESCRIPTION OF PREMISES Lessor hereby leases to Lessee said real property and bay bottom hereinafter referred to as the Premises, described in Exhibit A and Exhibit B attached areto and made a part hereof. 2. TERM The term shall be 20 years commencing with the receipt by Lessor of all permits and approvals required for the construction 4 1 of a fully equipped marina facility as set forth in this agreement. The Lessee is herein given the option to renew the terms of this lease under the terms aQd conditions as set forth in the Rental Schedule for two (2) additional periods of five (5) years each. The first five- year period commencing upon the expiration of the original term and the second five=year period commencing at the expiration of the first five-year renewal period. If Lessee desires to exercise these options, Lessee shall give Lessor written notification not later than six (6) months preceeding the termination of the original term of this lease as to the first five-year renewal period and not later than six (6) months preceeding the termination'of the first five-year renewal period as to the renewal of the second five-year period. 3. USE Lessee shall use the premises for the sole purpose of constructing, equipping and operating a privately owned marina offering wet and dry dockage and all other related services for the use of and by the general public. These services shall include: a. Storage of boats, wet, dry and trailered b. General repairs and servicing of boats c. Sale of bait, tackle, and ice d. Sale of marine hardware and supplies e. Launching services of all kinds f. Sale of new and used boats and motors g. Sale of nautical gifts and sundries h. Sale and consumption of beverages, food and beer i. Sale of fuel j. All other related services 4. CONDITIONS PRECEDENT As a condition precedent to the operation of this lease Lessee shall obtain at its sole cost and expense all permits, approvals Licenses and related documents from any and all Federal, State and local governments and agencies requiring them for the construction of a fully equipped marina as set forth in this lease. Lessee agrees that Lessor, being the fee holder and having vested rights in the real estate which is the subject of this agreement, shall be the Applic: and the Lessee its Agent in filing for all such permits. Lessee will use his best efforts to obtain such permits and Lessor will use its best efforts to assist therein. All such permits shall be and remai at all times the property of the Lessor, its successors or assigns. ' Lessee shall file an application for all permits or approvals necessary to commence construction under Phase I of the construction schedule no later than 30 days after the execution of this lease. Lessee shall inform the City Manager of all such applications and shall attach copies thereof. Permits and licenses, as they are approved, shall be issued in the name of the City. Lessee shall have 18 months after execution of the lease within which to obtain all above mentioned, permits and licenses necessa for the construction of the marina. If at the expiration of this period of. time Lessee has not obtained all the necessary permits, Lessee may at its option either terminate this agreement or may commence payment of rent in accordance with Section 9 providing for the payment of rent. Either party may at any time after 18 months from the date of execution of this Lease, but before all permits have been obtained have the right to terminate this lease. In the event of termination, pursuant to this section, Lessor shall return to, Lessee any monies paid to Lessor prior to termination. 5. IMPROVEMENTS BY LESSEE No later than thirty (30) days after the issuance of all permits, Lessee shall have prepared sealed drawings that will contain, but not be limited to the following: a. Complete Master Site Plan b. Wet storage facilities to accommodate 200 craft c. Dry storage facilities to accommodate at least 130 craft d. Launching ramp e. Parking area that will provide sufficient capacity for all planned improvements f. Landscaping plan g. Mechanical drawing for electric, water and sewage h. Marina building complex containing Dockmaster area, ship store area, restroom area, food and beverage area i. Soil borings analysis on areas of construction The Master Plan shall comply with the Planning and Zoning Ordinances of the City of Miami and said plan shall be submitted to Lessor for approval by the City Manager prior to construction. The MastertPlan will provide for preservation of access to the facility presently known as the Rusty Pelican Restaurant operate by Biscayne Bay Restaurant Corporation, a Florida corporation, a wholly owned subsidiary of Specialty Restaurants Corporation. The Lessee will construct this marina according to the following Construction Schedule! PHASE I (Approximate construction time is 8 months from final approval of permits & approvals) a. Construct piers and facilities for approximately 95 wet storage boats b. Clear area as needed c. Erect small temporary office (possibly use small house trailer or houseboat) d. Install necessary toilet facilities e. Install water supply system f. Install new fencing as necessary g. Install necessary lighting and electric service h. Create initial parking PHASE II (Approximate construction time 8 months from end of Phase I) a. Construct platform for the launching of dry storage boats and prepare area for a fuel facility b. Construct cradles for the dry storage of approximately fifty (50) boats c. Acquire fork lift .for the handling of dry storage boats d. Construct wet staging facilities for launching and retrieving dry storage boats e. Expand parking facilities f. Improve landscaping g. Install fuel service facility -5- PHASE III (Approximate construction time 8 months from end of Phase II) a. Construct steel rack to add approximately fifty (50) dry storage boats (Total now approximately 100) b. Finish landscaping c. Start construction cf Marina Headquarters and sales and facilities building d. Add toilet facilities as necessary PHASE IV (Approximate construction time 12 months from end of Phase III) a. Complete Marina Headquarters building b. Add additional piles to accommodate approximately one hundred five (105) additional wet storage boats bringing the total to approximately 200 c. Increase dry storage by fifty (50) to approximately 150 total based upon availability of space d. Construct maint.Gudnce facility e. Add sales, service and facilities as dictated by demand. Any changes in the design, order, and extent of construction for any reaso must be approved by Lessor. Approval for minor changes or readjustments shall not be unreasonably withheld. Notwithstanding the above, it is understood that Lessee shall not be responsible for failure to complete construction according to the above described time schedule due to causes beyond its reasonable control including acts of God, or the public enemy, acts of any govern- mental authority; fires, floods, unusually severe weather, epidemics, quarantine restrictions, strikes,' labor disputes and freight embargo. In the event that construction is delayed for any of the above mentioned reasons the construction schedule may be altered accordingly. The Lessee shall be solely responsible for complete construc- tion and installation of all utilities to the facilities. All improve- ments made by Lessee shall be solely at Lessee's cost and expense and shall be performed in a good workmanlike manner in accordance with sound -6- _construction practices. Lessee shall keep the premises and said • improvements free and clear of liens for labor and material and shall hold Lessor harmless from any responsibility in respect thereto, in accordance with the provisions of Paragraph 19. The total cost of Lessee's improvements on the premises shall' not be less than three hundred thousand dollars ($300,000.00) 6. CONSTRUCTION WARRANTY Prior to construction the Lessee will deposit with the City Twenty five thousand dollars ($25,000.00) to be used during the construc- tion of Phase I of this project. During Phase I of the construction schedule Lessee shall from time to time present copies of its paid construction invoices to the Lessor. Lessor shall thereupon pay to Lessee from the funds placed on deposit with the City, pursuant to this section, an amount equal to one-fourth of the cost to Lessee of construc- tion as evidenced by the documents presented. 'If Lessee should fail to complete Phase I of the construction schedule, Lessor will retain all monies not previously paid to Lessee. 7. OWNERSHIP OF IMPROVEMENTS All improvements, furnishings, and equipment constructed or installed on the premises by the Lessee shall be personal property and Lessee shall have legal title thereto during the term of this lease. Upon the expiration or termination of this lease, title to all permanent improvements constructed on the premises shall vest in Lessor. Title to all supplies, furnishings, inventories, equipment and other personal property shall remain vested with the Lessee, and the Lessee shall have the right to remove such items, excepting Licenses, from the Premises unless Lessee is in default hereunder. 8. PLEDGE OF LEASEHOLD INTEREST Lessee may pledge this leasehold interest as security for a;bona fide loan, the proceeds of which are to be used solely for the -7- • purchase of improvements to the premises pursuant to this lease, subject to the approval of the City Manager of the City of Miami, from reputable lenders or lending institutions, but not beyond the lease term and in an amount not to exceed $200,000. There shall be no pledge of leasehold interest as provided therein unless approved in writing by the City Manager Prior to obtaining writLLen approval, the Lessee shall furnish to the City Manager all agreements and legal instruments pertaining thereto involving;, the pledge of leasehold interest as security. Approvals shall not be arbitrarily withheld, 9. RENT (a) PERCENTAGE RENT ON BOAT STORAGE: As rental for the use and occupancy of the leased premises throughout the period of this Leasa Agreement, the Lessee does hereby covenant and agree to pay to the Lessor a sum equal to 10% of the gross receipts from wet and dry storage, excluding taxes, but subject to the following_minimums. (b) MINIMUM MONTHLY RENT During the term•of this lease Lessee shall pay Lessor a minimum monthly rent as follows: PHASE I: One Thousand Dollars ($1,000)per month payable in advance at the address of the Lessor on the first day of each month beginning eight (8) months after receiving the necessary permits and approvals or l8 months after the lease execution as shown in #2.. whichever date occurs first. 44.0 `-.4. ���� )'W ► 1. PHASE II: Beginning eight months after the initial rental guarantee, monthly minimum rent shall increase to fifteen hundred dollars ($1,500) per month. '..att<'zr oii ctt:pr 1r tq`:4) PHASE III: Beginning sixteen (16) months after the initial rental guarantee, monthly minimum rent shall increase to two thousand dollars ($2,000) per month(ST attr rv1A1 i 4-r•1gW) -8- .I 1 PHASE IV: Beginning twenty-eight (28) months after the initial rental guarantee, monthly minimum rent shall increase to twenty- five hundred dollars ($2,500) per month.a h1" 11r1) PHASE V. Beginning with the sixtieth (60) month after receipt of all permits and approvals, the monthly minimum rent shall increase to three thousand dollars ($3,000) per month. (i THN i" ) PHASE VI: Begining with the one hundred twentieth (120) month after receipt of all permits and approvals, the monthly minimum rent shall increase to three thousand five hundred dollars ($3,500.) . ikqu. I, 14d4, per month. PHASE VII: Beginning with the one hundred eightieth (180) month after receipt of all permits and approvals, the monthly minimum rent shall increase to four thousand dollars ($4,000) per month.( AN1i99�i Option #1: If the Lessee exercises the 1st option which begins two hundred forty (240) months after reeipt of permits and approvals, the monthly minimum rent shall increase to four thousand five hundred dollars ($4,500) per month.(aAN1,IR97) Option #J: If the lessee exercises the 2nd option which begins three hundred (300) months after receipt of permits and approvals the monthly minimum rent shall increase to five thousand ($5,000) per month. If rent begins in the middle of the month, rent for such month shall be prorated and paid in advance. If the marina facility in the future becomes subject to real property or possessory interest taxes the minimum monthly rent and percentage may be reduced subject to negotiations between the Lessor and the Lessee. ( 1. (12vvy) c. OTHER PERCENTAGE RENT In addition to the percentage or minimum monthly rent for wet and dry storage, the lessee shall pay Lessor as percentage rent on other sales in accordance with the following: (see exclusions in # 11, Gross Receipts) Per- cent- age Gross Receipts 3% $0 to $20,000 per month 2.5% $20,000 to $50,000 per month 2% $50,000 per month 2.5 cents per gallon on all fuel sales 10. RENT pEPOSIT On the date this lease is executed, Lessee shall pay to Lessor the sum of six thousand dollars ($6,000) as advance payment of the first six (6) months minimum monthly rent due hereunder. 11. GROSS RECEIPTS The term "gross receipts" as used herein shall include all receipts, whether collected or accrued, derived by Lessee or any licensee, concessionaire, or tenant of Lessee, from all business conducted upon or from the premises, including but 1'ot limited to, receipts from rentals, sales, service. The following items are excluded: (a) Retail sales taxes, excise taxes, or other taxes paid by the consumer and collected by Lessee (b) The amount of gratuities given to employees of Lessee. 12: RECORDS, ACCOUNTS, AND STATEMENTS Lessee shall keep on the premises, orsuch other place approved by Lessor, true, accurate, and complete records and accounts of all sales, rentals, and business being transacted upon or from the premises and shall give Lessor or Lessor's representative access during reasonable business hours to examine and audit such records and accounts. Within thirty (30) days after each month of the term hereof, Lessee shall deliver to Lessor a written monthly statement of the gross receipts for such month certified by Lessee to be true, accurate, and complete. Within :sixty (60) days after each fiscal year, Lessee shall deliver to Lessor a written annual statement of the gross receipts for such fiscal year. Said statement shall be certified as true, accurate, and complete by Lessee and his certified public accountant. , 13. PROPERTY TAXES: During the term hereof Lessee shall pay all taxes of whatever nature lawfully levied upon or assessed against the premises and improvements, property, sales, rentals or operations thereon, including but not limited to ad valorem taxes. 14. LICENgES AND PERMITS Lessee shall obtain and pay for all licenses, permits and •fees necessary for Lessee to conduct Lessee's business on the premises.. Upon termination of this lease for any cause whatsoever, all such licenses and permits shall become the property of the City of Miami, its successors or assigns. 15. MANNER OF OPERATION • 1. The facilities Lv be constructed by the Lessee shall be open seven (7) days a week, to'serve the needs of the public. At lease one person shall be on the premises at ail times to act as security for the premises and boats in storage. 2. Lessee shall at all times see that the public road leading from the causeway to the Rusty Pelican Restaurant is kept free of equipment and patrom parking. 16. CONFORMITY TO LAW Lessee shall comply with all laws, ordinances, regulations and orders of federal, state, county and municipal authorities per- taining to the premises and Lessee's improvements and operations thereon. 17. MAINTENANCE AND REPAIRS During the term hereof, Lessee, at Lessee's expense, shall, tothe satisfaction of the Lessor, keep and maintain•the premises and all improvements thereon in good and sanitary order, condition, and repair, consistent with the operation of a first-class marina. Lessee shall also -11- be responsible for the continued maintenance of the road used for the transportation of his heavy equipment. Upon expiration or termina- tion hereof, Lessee shall surrender and deliver up to Lessor the premises and all permanent improvements thereon in good and usable condition, ordinary wear and tear excepted. 18. DESTRi, TION In the event the Marine, Marina support facilities or any portion of the premises shall be destroyed or so damaged or injured by fire or other casualty during the life of this agreement whereby the same shall be rendered untenantable, then the Lessee shall render said premises tenantable by repairs within ninety (90) days therefrom, or such additional period of time as agreed to by Lessor's City Manager in writing. During this period of reconstruction rent shall be pro- portionately reduced as to space dr facilities not available to Lessee. In the event the premises are substantially destroyed or so damaged or injured by fire or other casualty that the premises cannot be rendered tenantable or that Lessee elects not to replace within the ninety (90) day period as set forth above, or such additional period of time as agreed to by the Lessor's City Manager, then the proceeds of the insurance policy or policies covering such loss or damage shall be paid to the City of Miami and the Lessee as its interests appear, and this agreement shall be deemed terminated with no further liability to either party and the rent shall be' payable only to the date that said premises are rendered untenantable. 19.INDEMNIFICATION The Lessee covenants and agrees that it•shall indemnify and save harmless the Lessor from and against any and all claims, suits, actions, damages or causes of action arising during the term of this Lease 1 .f �agreement for any personal injury, loss of life, or damage to property, • sustained in or about the leased premises, by reason of or as a result of the Lessee's occupancy thereof, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorneys' fees,. expenses and liabilities incurred in and about the defense of ancsuch claim and the investigation thereof. Lessee further agrees to indemnify, defend, and save harmless the Lessor, its officers, agents, and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, materialmen, laborers, and any other person, firm or corporation furnishing or supplying work, services, materials or supplies in connection with the performance of this contract and from any and all claims and losses acuiuing or resulting to any person, firm or corporation who may be injured'or damaged by Lessee in the performance of this agreement. / 20. INSURANCE At all times during the term hereof, Lessee shall maintain in full force andeffect the following described insurance covering the premises and lessee's improvements and operations thereof: (a) PUBLIC LIABILITY INCLUDING PRODUCTS LIABILITY INSURANCE: Not less than $300,000 for death of or injury to any one person in any one occurrence. (b) FIRE AND EXTENDED COVERAGE: 90% of replacement value of all improvements, less the concrete docks and steel boat racks. Certificates of such insurance shall be delivered to the Lessor prior to the beginning of any construction by Lessee; such policies shall name Lessor as additional insured and shall provide that Lessor be given at least thirty (30) days advance written notice of cancellation or material modification. All Certificates of Insurance shall be filed with the Risk Management Division of the City of Miami, Florida. '3- The insurance provided for herein shall be written by a company authorized to do business in the State of Florida through an agent authorized to do business in the State of Florida. The company must have a rating no less than "A" as to management, and no less than "Class X" as to strength, in accordance with the latest edition of A.M. Best's Key Rating Guide. The insurance company and the amount of coverage shall be subject to the approval of the Lessor's City Manager, and the proceeds payable under Section (b) hereof shall be assignable to the City of Miami pursuant to Paragraph 19 of this lease. Lessee shall also be required to provide a certification of Workmen's Compensation Insurance coverage before being permitted to commence business operations, in accordance with Chapter 440 of Florida Statutes. 21. UTILITIES Lessee shall promptly pay for charges for water, gas, electricity, telephone, and all other charges for utilities which may be furnished to the premises during the term hereof. 22. DEFAULT (a) If Lessee abandons or vacates the premises prior to the expiration of the term hereof, or (b) If Lessee fails to make the rent payments as set forth herein and said payment is nbt made within 15 days after written notice is given to Lessee, or (c) If Lessee fails to perform in accordance with any ofthe other terms and conditions herein contained, and such default is not cured within 30 days after written notice is given to Lessee, then Lessor, at Lessor's option and without further notice or demand to Lessee, may enter into possession of the premises and all improvements -14- thereon and remove all persons therefrom and may either take possession of all furniture, equipment, and other personal property of Lessee found on the premises or remove such property or any part of it and store it at Lessee's expense. Lessor may then either terminate this lease or relet the premises. In the event Lessor elects to relet the premises for such rent and upon such terms as Lessor may be able to obtain, Lessee shall continue to pay any difference between the rent obtained by such reletting and the rent due hereunder. 23 BANKRUPTCY OR INSOLVENCY If Lessee is adjudicated a bankrupt or 'makes an assignment for the benefit of creditors, or if the leasehold interest is sold under a legal order, or judgment, Lessor shall have the right to immediately terminate this lease apd re-enter the premises without notice or demand. 24. ASSIGNMENT AND SUBLETTING OF PREMISES The Lessee shall not at any time during the term of this Lease Agreement assign this Lease Agreement or any portion or part thereof, except and by virtue of written authorization granted by the City Manager of the City. Said authorization shall not be unreasonably withheld. 25. INSPECTION OF THE PREMISES BY THE CITY The Lessee agrees to permit the Lessor, by its City Manager's designated personnel, to enter upon the property at any time during business hours for any purpose the City Manager of the City deems necessary or incidental to or connected with the performance of Lessor's duties and obligations hereunder,or in the exercise of its rights or functions. -15- r• ti 26. NOTICES All notices and rental payments shall be sent to the parties at the following addresses: LESSOR: The City of Miami, Florida P.O.Box 330708 Coconut Grove Station Miami, Florida, 33133 LESSEE: Marina Biscayne, Inc., Martin Rabin, Presiden 6805 Talavera Street Coral Gables, Florida, 33146 Either party shall immediately notify the other of any change of address. 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 mail, return receipt requested. Lessee may designate additional persons for notification of default. 27: ATTORNEYS' FEES In the event that it is deemed necessary for either part), to file a lawsuit in the appropriate court of law in order to enforce any of the terms or provisions of this Lease Agreement, then the prevailing party shall be entitled to reasonable attorneys' fees. In the event Lessee is in default in payment of rent, Lessee agrees to pay all the costs of collection by any means (including any and all attorneys' fees) plus 107. of the amount of rental due as liquidated damages. 28. WAIVER No waiver of any breach of any provision of this agreement shall constitute a waiver of any other breach of such provision. 29. TIME OF ESSENCE Time shall be of the essence of this lease. _14 30. TERMS BINDING ON SUCCESSORS All of the terms and conditions of this lease shall inure. to the benefit of and be binding upon the successors and assigns of the parties hereto. 31. SIGNS No outdoor signs whatsoever, including advertising signs, shall be erected or pervitted upon the premises until the plans therefor have first been submitted to the City Manager of the City of Miami, and he shall approve said plans for the design and construction thereof in writing. Approvals shall not be arbitrarily withheld. Excluded from these requirements are those signs required by law and for safety and • the identification of facilities. IN WITNESS WHEREOF, the parties have executed this lease on the date first above written .? --2- THE CITY; OF MIAMI, FLORIDA, Lessor Atteslr� O )Secre ry By.. qTY MANAGER MARINA BISCAYNE, INC., Lessee By ! ry •7.'' if,/ President Prepared and approved by: Judith Hollaner, Asst. City Attorney APP OyED AS TO FORM AND CORRECTNESS: Te ORGE F KNs , R TTORNEY l1 LJADE COUNTY a ,Mead Line 0'4 -9' 27.5 1f: ... = � ,bl4� P! -- �...• ram•. • l w :�R.ritMq.w.., J. •• / •. EWA•Y" - • -.+ A• 3.57• /NYJ•PTor'WJ C-Lr :ioo_J o .. 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