HomeMy WebLinkAboutSecond Amendment to LeaseSECOND AMENDMENT TO LEASE AGREEMENT
BETWEEN CITY OF MIAMI
AND
RICKENBACKER MARINA, INC.
/37
TABLE OF CONTENTS
1. Incorporation of Recitals 4
2. Term 4
3. Rent 4
4. Entire Agreement. 5
Exhibit `'A"
Exhibit "B"
Property
Capital Improvements and Aesthetic Improvements
THIS SECOND AMENDMENT to the Lease ("Amendment") is made and entered into
between the CITY OF MIAMI, a municipal corporation of the State of Florida ("Lessor" or
"City"), and RICKENBACKER MARINA, INC., a Florida Corporation, ("Rickenbacker").
RECITALS
A. The Lessor and Marina Biscayne, Inc. ("Original Lessee") entered into that
certain lease agreement dated July 8, 1977, as amended by that certain Memorandum of
Understanding between the parties (the "Lease"), pursuant to which Original Lessee leased
certain City -owned real property and bay bottom for the development and operation of, among
other things, a full service marina, described in Exhibit A attached hereto and made a part hereof,
located at"3301 Rickenbacker Causeway, City of Miami, Dade County, Florida (the "Premises");
B. Original Lessee assigned the Lease to Michael D. Brandon as Trustee under an
unrecorded trust for Marina Biscayne; Ltd. ("Successor Lessee"), pursuant to an Assignment of
Lease dated January 31, 1983;
C. With Lessor's consent, Successor Lessee assigned and transferred all its interest in
the Lease to Rickenbacker Marina, Inc. ('Rickenbacker" or "Lessee") pursuant to an Assignment
of Lease dated June 25, 1986.
D. Rickenbacker requested. Lessor to extend the term of the Lease in order to
amortize the cost of certain capital iriiprovements that Rickenbacker plans to perform on the
Premises, which are more specifically described in Exhibit `B" hereto.
E. The term of the Lease, together with any options to renew, was to expire on
January 7, 2009 (the "Original Expiration Date").
F. Pursuant to Resolution, No, 08-0704, adopted December 11, 2008, the City
Commission of the City of Miami (the "City Commission"), by a four -fifths (4/5ths) affirmative
vote, in accordance with Section 29-B of the Charter of the City of Miami, authorized the
extension of the term of the Lease between the City and Rickenbacker, subject to conditions
providing for City Commission approval of the terms of such extension on or before March 12,
2009, and providing for automatic rescission of the authority granted should the City
Commission fail to approve such terms on or before March 12, 2009.
G. The Lessor and Rickenbacker entered into a FIRST AMENDMENT to Lease on
January 8, 2009 ("Effective Date"), for the purpose of extending the term of the wet storage
facilities including moorings, restaurant and tiki deck, restrooms/showers, office/store and fuel
dock facilities, and other ancillary facilities and services of the Property, for seven and one-half
(7%) years to July 7, 2016, and the dry storage facilities of the Property for a term of four and
one-half (4V2) years to July 7, 2013, with three I -year options to renew the Lease, subject to
approval by the City Manager.
H. The Lessor and Rickenbacker desire to enter into this Amendment for the purpose
of combining the renewal options from three 1-year options to one 3-year option, exercised
immediately, thereby matching the dry storage term of the Lease to the wet storage term of the
Lease as set forth herein.
I. The Lessor and Rickenbacker acknowledge that the modification of the term of
the Lease granted herein is specifically conditioned upon Rickenbacker contributing no less than
$2 million towards the construction of a new parking facility with at least 220 parking spaces to
serve the users of the Premises and other areas in the vicinity of the Premises, if the City builds,
or causes to be built such parking facility ("New Parking Facility"). Rickenbacker's failure to
make such contribution upon written request from the Lessor, MPA, or some other entity, in a
timely manner shall be deemed a default of the Lease, and the City Attorney shall proceed with
any legal actions authorized by the Lease.
J. 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, Miami
Parking Authority ("MPA"), 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.
3
K. Upon Lessor's assignment and MPA's assumption of all of Lessor's obligations to
construct the New Parking Facility, Lessee agrees to recognize that MPA may perform Lessor's
obligations with respect to the New Parking Facility under the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the conditions, covenants and
agreements hereinafter set forth and in consideration of other valuable consideration the parties
hereto agree to amend the Lease as follows:
1. Incorporation of Recitals
The recitals and findings set forth above are adopted by reference thereto and
incorporated herein as if fuIIy set forth in this Amendment.
2. Term
Section 2 of the Lease is amended to read as follows:
2. Term.
The Term of this Lease shall 'be as follows: 1) the use of wet storage facilities including
moorings, restaurant and tiki deck, restrooms/showers, office/store and fuel dock facilities, and
other ancillary facilities and services of the Property, shall be extended for a term of seven and
one-half (7 '/2) years from January 8, 2009 through July 7, 2016, subject to the terms and
conditions set forth herein; and 2) the use of dry storage facilities of the Property shall be
extended for a term of seven and one-half (7 'A) years from January 8, 2009 through July 7, 2016,
subject to the other terms and conditions set forth herein, (collectively, the "Term").
3. Rent
Section 9 of the Lease is amended to read as follows:
2. (a) Percentage Rent shall be calculated as follows: As of the Effective Date
and continuing throughout the Term, Percentage Rent shall be as follows:
15% of Gross Revenues for wet storage facilities including any
moorings:.
12% of Gross Revenues for dry storage facilities, to be increased
one percent (1%) per year, commencing July 8, 2013, and every
year thereafter of the term.
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40% of any revenues collected for subleasing, management
agreements, licenses, joint ventures and any other agreements,
whether written or oral, between Rickenbacker and any third party
for a third party's operation of activity on the Property.
5% of Gross Revenues for any other related services performed on
the Property.
5% of Gross Revenues for fuel dock facility.
4. Entire Agreement. The Lease, as amended by the First, and Second Amendment,
constitutes the entire agreement and understanding among the parties with respect to the
subject matter hereof Lessor and Rickenbacker 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.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
Attest:
Priscilla A. T ompson
City Clerk
APPROVED. AS T
REQUIREMENT.:
r
I7SURANCE
Gary Reshefsky, Inferun Director
D partment ofpisk.Management
5
"LESSOR"
THE CITY OF MIAMI
ony E. Crapp, Jr.
City Manager
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. ru
City Attorney
Attest:
By:
Signature
AL55Y Qu uJTT
Print Name
STATE OF FLORIDA )
COUNTY OF DADE )
"LESSEE"
RICKENBAC A MARINA, INC.
laid/j--
Print Name and Title
�/ij
Date
The foregoing instrument was acknowledged before me this 14 day of
�► , 201ii by of Rickenbacker Marina, Inc., a for profit
corporati n of the State of Florida, on behalf of the corporation. He/sl+isyersonally known to me or has
produced as identification and who did (did not) take an oath.
Print Name of Notary
DON ESPITIA
Comm# DD0888862
Fs w.XPires 6/18/2011
Netodda NotaryAssn., Inc
�yygpµccaexuagxagpq{�gpFaBiannpnv:
6
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
7
/ 1/ :'///o'l->
Exhibit
LEGAL DESCRIPTION
LEASE AREA NO., 2
Commence at the southeast corner of Section 17, Township 51, Suufh,
Range 62 East; thence niong the south line of said Sect ton 17
N 89° 56' 49.5" W 2,649.84 feet to its intersection -with theloenter
• line of 0ickenbacker Causeway, ae shown or "IRE •I-F_TRDPOLITAU DADE
COUNTY BULKHEAD LINE", according iv the plat thereof, as rrcorded
in Plat Bock 74; at Page' 9', Sheet No. 2, of the' Public Records of
Dade County, Florida; thence n1or •sa.id center line 9 45 22' 07" N
3,593.07 feet; thence.N 4e.37' 53" E 200.00 feet to the Po lot of •
beginning_of-te here±.anfter._descr-bed_izact_No. 2 n,e,id optntpf
Beginning being elan on the northee'ster.y- right -DE -way line DE said
"Rickenbacker Causeway.'!,•thence•along said right -of -was line •
•N 45'221 07 1d'T61:08 fear to, the beginning of a curve concave, to
the southwest, a"'r5diu3 o.-,632.40 fee_; thence north,.est-
e_Lp'�no westerly '-•,Z9..,. 41„ d carve through a centr21.c,8 •feet ahogg Said
•
n-ii -e:ofi: vf:tangency; 'thence clong •said .
,•
righC=of-wap8.894:,06.'.48" W.13°.26 feet be Its intersection with
" 11E;:METRDPOLIThN'I7ADE. OD11NTx BUUGBAD LIPTE", `as ahDwn•ia seid P1e
Hgok :74;'.therice along said bulkheadline R 44° 06' ,48" E.908.00
'et , thence',:along'thes•outhwester l}^propety lY.ne Hof .toe tract or
Exhibit
LEGAL DESCRI,NON .
LEASE AREA NO, 2
1:Ind dcscribed 1i rrylsvd inhibit "A" lonsr.betw”Pn 'The City 1:,/
Wand." (lessnr) and 5vrclally Rygtoornnts Cnrporat Inn "Rusty. .
rcitra" Restrifirnot" (lessee) E 459 2207" E 1,02(,,41; feet; !hence
14 44° 37' .5r1E 250,0E fret; iitInue 5 45r 22' 07" E 640,176 feet ;
thence S le 22' 07" 0 344.14 1,001.:; thence s 40' 3j, 53' 0 61,04
feet to the northeasterly corner of .a two- foo.1 concrete eeswall;
theme continue elong said Une S 44° 37' 53" W 150. 57 feet; thence
S 45c 22' 07" 5 255.17 feet; thence 5 44`' 37' 53' W 161.00 feet tc
the_loint_oLBegLnning.;—less.-the-following':--beese
7cad to restaurtnt •
Containing 20.975 acres, more or less.
EXHIBIT "B"
CAPITAL IMPROVEMENTS
8
R[CKENBACIOER. MARINA, INC.
ICES' BISCAYNE, FL
7e1: 305-36I.1 900
Fax: 305=361-203b
Emil! r ckenbarbcllsomi:.nci
February _, 2009
lvinrk �, t?uinljw n, 1vi.k,l., Stwc Ccrt iicd Gcncrnl Apnn iscr
President
Quinlivnn Appraiso! P.A.
5730 SW 74th St, Sic 300
South tvliami, FL 33 J43
3301 Rickcnnnckcr Cacsewey
1:cy liscnvnc, Flridc 33149
wr�c icL=nbacl:eanarinacanl
Re: Appraisal for Piekcnbacker Marina-, Inc, (2hal)—Schcdnie of -Capita? Casts
Denr_Mr. Qninlivan,
As per Mrs. Valdes's request, please find the revised scbeuuJe and scope of copito) costs to
be implemented it your appriiisal of R1\41. As a/Wayys, please call me al any hour for any
questions, comments, or concerns,
I. MIAA1T IRON WORK, INC.
'This estimate includes the removal DC the cxisiing chain link Icnce and
• rcploccut_nt of the entire fenoc running niong the dnuhusc area and thy sturuee frontage
facing the periling lnl. 'The replacement leper wifl be n rnorc•ornsLe, white, welded
galvanized rod Fence, with the outwardly curved spikes along the lop edge for security,
New sliding poles will also be placed at the entrance of the dry storage urea and an
automized security gale will be placed .at caul' entrance of the docks.
Fence and Gate S 6fi,504.67
Exhibit "E"
2. R9AItIN & It'1J.RIN CONSTRUCTION
The pier improvements consist of 90 'firmer piers" that will run perpendicular
from each main pier (A, i3, C, D) and parallel to each vessel for greater convenience of
recess in boarding, maintaining the vessel, and docking. Meuse note that Vv't are not
adding more slips to the facility; we are merely -enhancing our existing ones,
The shoreline stabilization includes the placement or Sheet piling to form sea
1>1alt, as n bulkhead, asainsi erosion along the entire norlherr facing area of our.puTJ:ing
lot (Marine Smdiunt basin). This will be constructed 10 Prevent erosion or the shoreline
. along the surface lot. This improvement is e condition precedent to the eventual building
of n boardivall or wnterfront promenade (1yia4ter Plan item), as shoreline sinbllizotiop is o
key clement in any waterfront construction. As SCn levets:iSe this Will also be a crucial
element against erosion of shoreline and eventually ibe surface lot. hhoteover, bosh the
pier and shoreline improvements will lost and beneliit•the City fur beyond the expiration
of the lease extension tem.
Pier improvements S 297,549,00
Pier improvements S �aa0.9i1
Shoreline Stabilization 9 185,450.00
3. SURGE SOLUTION'S GROUP
This item, will ensure that the underground fuel: innks at our fuel station will be in .
compliance once the modified code requiring all unucrmround fuel tanks to he doubl:
walled goes into enforcement at•tbe end of 2009, The relinine is a cost effective, code
compliant option for 'double walling' the tanks (this option is ,n30)c chcaner Than
replacement and there is far less business inlcmrption.) the tanks are removed, cleansed
and vacuumed, and are then injected with a cornpound to form a mold that reinforces the
walls of the tank.
Fuel tank rel nine S 128,957.36
4. PINARD CONSTRUCTION (dry storage)
. This is includes the execution of the first trade in the dry storage repaving job, the
cutting and demolition of the existing slob. The above sub contractor willcut into smaller
pieces and remove the existing slab so thus e new 'char foundation may be laid grub e
level surface, prior to the pouring of new concrete.
Concrete culling and demolition S 3.9,500x 3 9118,500.00
5, WKITECAP CONSTRUCTION SUPPLY (dry storage)
This includes the rubrication ond delivery of the rebar to be taigas s foundation
for the new slabs.
RlCKEINBACKRR MARINA, rNC.
KEY BISCAYNE, FL
Tel: 305-361. 3 900
Fn,c 305-36)-2036
H61041: rid:cab e;bcllsontlt.a 1
February l3, 2000
19adclinc Araldcs
Director
Department of Public Fucititics!1tss1 ,Matta,>etnent
City or Miami
444 S.W. 2nd Ave., 3' Floor
Alian_ti, FL 3312E
Re: P %cicenbncker Merino — 8cst11eaic i mprovemeots
Dear Mrs. Valdes,
?3U7 Pickenbnckcr Cousewny
Key Biscayne, Florida 33;49
wtt w. ockenbn ^_kcrmari n a.enm
Rickenbackcr Marina, Inc. (Rh4I), along with the r1.3 miliiun•ir capital improvements
already pledged, will render a number of aesthetic improvements, including but not limited to the
followine:
1. 'Fite removal (tithe Key Biscayne Boat Rental (KBI;R) trailer office, as well as the lartc
shipping container currently used by them es a storage unit_ Also to be.rentoved are all of
the steel rucks hut house their personal water crafts (P\VC's) on the northeastern portion
of the subleased parcel (Stadium Basin side; adjacent in our dry storave), A portion of
this Brea Will most likely be used as ouch needed additional parking spuce and the
balance will likely be occupied by n boat dealership satcllitc office.
2, Re -painting of the restaurant building al the entrance of RJvII's lease parcel, to give it a
more nautical appearance. Please note that the :mire roof of .he restaurant will also be
replaced, es mentioned in the capital costs binder.
3. Re-sudbcing and re -striping of the entire surface purking lot in tits R9I Ieasc parcel. This
does not include the public roadway leading to the Rusty Pelican. However, should the
City so desire that this public roadway be re -surfaced and striped, P.MJ will seek the
required approvals and render this improvement.
Exhibit HD
4. Landscaping - native plants only i.e., nnhns, silver buttonwood, gumbo lirnbu, etc. -
ornamental planters will be placed in the following itr.as on the lease parcel:
a. Along the mire narthenn facing border of the parking Jot, along the Stadium Basin
• b, Alone the entire southern facing border of the parking Jot, along our suet slip basin.
c. Along the cutire southern facing border of our dry storage area (already commenced).
d. Along the entire western facing border of the dry storage Oren {already commenced).
5. Lo-q' voltage landscape lighting to hiehlieht the existing and new landscaping al night.
This will provide a more auspicious pathway for RAC and Rusty Pelican patrons at night.
6. A shaded pavilion area for our customers at the main entrance to the wet slips. This will
include the installation of ornate brick pavers on the ground. A shaded pstiilion urea for
our tiry storage Cnstomer.s rnuy n)co be constructed in a portion of the area previously
occupied by KJ3BR — also to include, with the City's approval, a paved tt'allaway Jeadine
to the current Juuuch area on the adjacent City marine parcel. This will be a secured,
enled, pedestrian walkway that will be ssitbin oar setback, and ;will not encroach upon the
wetlands, and thus will allow RMI to circumvent approval from DERIvf. Renternbe;, we
gain some upland arca upon the installation of the seawall and idled iu area beltind it •
(refer to engineer's drawings in the capital costs binder.)
7. Also, as mentioned in the rirewious capital costs binder, tt'e will be installing the more
ornate galvanized rod fonciug. New signage will be placed on or in front the fenced areas
as well as all areas where the required si page currently appears.
Thank you again for your continued.:guidance throughout this negotiation. Please know Choi
.RMl is not fit -oiling itself to the above improvements end is open to any suggestions that your
department or the City Commission ratty have.
Respectfully Submitted,
Aabnd R. McJwani, Esq.
President
Rickcbackcr Marina, Jnc.
Cc: Last' Spring, Cbiel'Pinancial Officer, City of Miami
Mara D. Sarnoff, Commissioner District 2, Cily ofhliami
Pedro O. llcmanticz, City Manager, City of Miami
FIRST AMENDMENT TO LEASE AGREEMENT
BETWEEN CITY OF MIAMI
AND
RICKENBACKEER MARINA, INC.
TABLE OF CONTENTS
1. Incorporation of Recitals 3
2. Definitions 3
3. Term 4
4. Use 4
5. Improvements By Lessee 5
6. Ownership of Improvements 6
7. Pledge of Leasehold Interest 6
8. Rent .. 7
9. Rent Deposit 9
10. Gross Revenues 10
11. Records, Accounts and Statements 11
12. State of Florida. 12
13. Property Taxes 13
14. Manner of Operation 13
15. Maintenance and Repair. 14
16. Destruction. 15
17. Insurance 16
18. Assignment and subletting of premises 21
19. Notices 21
20. Safety. 22
21. Americans With Disabilities Act 23
22. Force Majeure 23
Exhibit "A" Property
Exhibit "B" Capital Improvements and Aesthetic Improvements
THIS FIRST AMENDMENT to the Lease ("Amendment") is made and entered into
between the CITY OF MIA1 II, a municipal corporation of the State of Florida ("Lessor" or
"City"), and RICKENBACKER MARINA, INC., a Florida Corporation, ("Rickenbacker").
RECITALS
A. The Lessor and Marina Biscayne, Inc. ("Original Lessee") entered into that
certain lease agreement dated July 8, 1977, as amended by that certain Memorandum of
Understanding between the parties (the "Lease"), pursuant to which Original Lessee leased
certain City -owned real property and bay bottom for the development and operation of, among
other things, a full service marina, described in Exhibit A attached hereto and made a part hereof,
located at 3301 Rickenbacker Causeway, City of Miami, Dade County, Florida (the "Premises");
B. Original Lessee assigned the Lease to Michael D. Brandon as Trustee under an
unrecorded trust for Marina Biscayne, Ltd. ("Successor Lessee"), pursuant to an Assignment of
Lease dated January 31, 1983;
C. With Lessor's consent, Successor Lessee assigned and transferred all its interest in
the Lease to Rickenbacker Marina, Inc. ("Rickenbacker" or "Lessee") pursuant to an Assignment
of Lease dated June 25, 1986.
D. Rickenbacker requested Lessor to extend the term of the Lease in order to
amortize the cost of certain capital improvements that Rickenbacker plans to perform on the
Premises, which are more specifically described in Exhibit `B" hereto.
E. The term of the Lease, together with any options to renew, was to expire on
January 7, 2009 (the "Original Expiration Date").
F. Pursuant to Resolution No. 08-0704, adopted December 11, 2008, the City
Commission of the City of Miami (the "City Commission"), by a four -fifths (4/5ths) affirmative
vote, in accordance with Section 29-B of the Charter of the City of Miami, authorized the
extension of the term of the Lease between the City and Rickenbacker, subject to conditions
providing for City Commission approval of the terms of such extension on or before March 12,
2
2009, and providing for automatic rescission of the authority granted should the City
Commission fail to approve such terms on or before March 12, 2009.
G. The Lessor and Rickenbacker desire to enter into this Amendment for the purpose
of extending the term of the Lease, and for the other purposes as set forth herein.
H. The Lessor and Rickenbacker acknowledge that the extension of the term of the
Lease granted herein is specifically conditioned upon Rickenbacker contributing no less than $2
million towards the construction of a parking facility to serve the users of the Premises and other
areas in the vicinity of the Premises, if the City builds, or causes to be built such parking facility.
Rickenbacker's failure to make such contribution shall be deemed a default of the Lease, and the
City Attomey shall proceed with any legal actions authorized by the Lease.
NOW, THEREFORE, in consideration of the foregoing and the conditions, covenants and
agreements hereinafter set forth and in consideration of other valuable consideration the parties
hereto agree to amend the Lease as follows:
1. Incorporation of Recitals
The recitals and findings set forth above are adopted by reference thereto and
incorporated herein as if fully set forth in this Amendment.
2. Definitions
A new section titled "Definitions" is added immediately prior to Section 1 of the Lease to
define certain terms and phrases in the Lease as follows:
Section 1. Definitions:
A. "Capital Improvements" means the improvements described in Exhibit "B" to be
constructed by Rickenbacker in whole or in part on the Property, as the same may be modified,
relocated, reduced or expanded, by mutual agreement, and as provided in this Lease, from time to
time.
B. "Effective Date" means January 8, 2009.
C. "Governmental Authorities" means all federal, state and municipal governments,
agencies, departments, commissions, boards and officials having jurisdiction over the Property,
the Improvements or the construction thereof.
3
D. "Gross Revenues" shall have the same meaning as gross receipts and shall include
all revenue actually received by Rickenbacker and to the extent provided below, . by
Rickenbacker's subtenants derived directly from business operations located on or initiated at the
Property as further described in Section 10 below.
E. "Improvements" means all improvements, including Rickenbacker's Capital
Improvements, buildings, structures and fixtures now or hereafter situated, placed, constructed or
installed on the Land, including but not limited to, all attached fixtures, equipment, apparatus,
machinery, fittings and appliances, and any additions to, substitutions for, changes in or
replacements of, the whole or any part thereof. All title to Improvements shall immediately vest
with the City.
F. "Land" shall have the same meaning as "Premises" for Area 2 of approximately
21.975 acres of real property in the City of Miami, described in Exhibit "A",
G. "Property" shall mean the Land and the Improvements.
H. "State Approval" shall mean the State of Florida Board of Trustees of the Internal
Improvement Trust Fund (the "State Approval").
3. Term
Section 2 of the Lease is amended to read as follows:
2. Term.
The teen of this Lease shall be as follows: 1) the use of wet storage facilities including
moorings, restaurant and tiki deck, restrooms/showers, office/store and fuel dock facilities, and
other ancillary facilities and services of the Property, shall be extended for a term of seven and
one-half (TA) years from January 8, 2009 through July 7, 2016, subject to the terms and
conditions set forth herein; and 2) the use of dry storage facilities of the Property shall be
extended for a term of four and one-half (41/2) years from January 8, 2009 through July 7, 2013,
with three 1-year options to renew the Lease, subject to approval by the City Manager, at his sole
discretion, following ninety (90) days prior written notice from Rickenbacker and subject to the
other terms and conditions set forth herein, (collectively, the "Term").
4. Use
Section 3 of the Lease is amended to read as follows:
3. Use.
4
The Property is leased to Rickenbacker for the sole purpose of operating a full service
marina facility providing for approximately 190-wet storage facilities including moorings, a
restaurant and tiki deck, restrooms/showers, office/store and fuel dock facility, approximately
298 dry storage facilities, boat repair, and other ancillary services for the use of and by the
general public. These services shall include:
1. Storage of boats, wet, dry and trailered
2. General repairs and servicing of boats
3. Sale of bait, tackle, and ice
4. Sale of marine hardware and supplies
5. Launching services of all kinds
6. Sale of new and used boats and motors
7. Sale of nautical gifts and sundries
8. Sale and consumption of beverages, food and beer
9. Sale of fuel
10. All other reasonable ancillary services
Rickenbacker shall not use the Property for any other purposes without the prior written
approval of the City Manager, which may be withheld or conditioned in his/her sole discretion.
As consideration for the extension of the Original Expiration Date, Rickenbacker has
agreed to make certain Capital Improvements on the Property, which is wholly owned by Lessor.
These Capital Improvements are in addition to any Capital Improvements Rickenbacker was to
complete prior to the Original Expiration Date.
5. Improvements By Lessee
Section 5 of the Lease is amended to read as follows:
5. Improvements by Rickenbacker
A. Improvements. Commencing no later than April 1, 2009, Rickenbacker must
perform the required 'Capital Improvements described in Exhibit "B". These Capital
Improvements must be completed on or before March 31, 2011. If Rickenbacker fails to
complete the required Capital Improvements by said date, Rickenbacker agrees to pay Lessor the
total cost to complete said Capital Improvements, as Lessor determines the costs to be.
B. Performance Bond. As assurance for the faithful and timely performance and
construction of the Rickenbacker's Capital Improvements, Rickenbacker shall, prior to
5
commencement of any construction in excess of $200,000, furnish Lessor a bond (or such
alternate form of security, such as a letter of credit, as may be approved by Lessor) in the amount
of 100% of the cost of each Capital Improvement. The surety on said bond (or issuer of any
alternate form of security), shall be subject to the approval of the City Manager, which approval
shall not be unreasonably withheld or delayed. The bond (or alternate form of security) shall be
released by Lessor upon completion of each of Rickenbacker's Capital Improvements as
evidenced by the issuance of Final Release of Liens as issued by Rickenbacker's contractor or
subcontractor for work completed.
6. Ownership of Improvements
Section 7 of the Lease is amended to read as follows:
7. Ownership of Improvements As of the Effective Date of this Amendment, title to
all existing Improvements shall immediately become the property of Lessor. Title to all future
Improvements, including the required Capital Improvements described in Exhibit "B" once
completed, shall immediately become the property of Lessor. Title to all supplies, furniture,
inventories, if not attached to the Property, shall remain the personal property of Rickenbacker
and Rickenbacker shall have legal title thereto upon the expiration or early termination of this
Lease. Rickenbacker shall have the right to remove such items from the Property provided that it
repairs any damage caused by such removal. Should Rickenbacker fail to repair any damage
caused to the Property within ten (10) days after receipt of written notice from the Lessor
directing the required repairs, the Lessor shall cause the Property to be repaired at
Rickenbacker's sole cost and expense. Rickenbacker shall pay the Lessor the full cost of such
repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs.
At the Lessor's option, the Lessor may require Rickenbacker to remove any
Improvements. Should Rickenbacker fail to remove said Improvements and other items of
personalty on or before the expiration or early termination date of the Lease, said property shall
be deemed abandoned and thereupon shall become the sole personal property of the Lessor. The
Lessor, at its sole discretion and without liability, may remove and/or dispose of same as the
Lessor sees fit, all at Rickenbacker's sole cost and expense.
7. Pledge of Leasehold Interest
Section 8 of the Lease is deleted in its entirety.
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8. Rent
Section 9 of the Lease is amended to read as follows:
9. Amount of Rent. Commencing on the Effective Date, and continuing throughout the
term of the Lease, Rickenbacker covenants that it shall pay to the Lessor as Rent for the Property,
the greater of the Minimum Annual Rent or Percentage Rent as follows:
1. Minimum Annual Rent. Minimum Annual Rent shall be the sum of Three
Hundred Sixty Thousand Dollars ($360,000.00) plus Florida State Use tax, if
applicable. Rickenbacker shall pay one twelfth of the Minimum Annual Rent to
Lessor each month. The Minimum Annual Rent shall be paid in advance on the
first day of each and every calendar month as of the Effective Date.
2. Percentage Rent. Percentage Rent shall be a sum equal to a variable
percentage of Rickenbacker's Gross Revenues (as defined herein) made from or
upon the Property during each month which exceeds the Minimum Annual Rent
for that same time period. Percentage Rent shall be computed on a monthly basis
("Percentage Rent Period") beginning on the Effective Date and continuing
throughout the Term.
(a) Percentage Rent shall be calculated as follows: As of the Effective
Date and continuing throughout the Term, Percentage Rent shall be as
follows:
15% of Gross Revenues for wet storage facilities including any
moorings.
12% of Gross Revenues for dry storage facilities, to be increased
one percent (1%) per year after initial four and one-half (4%z) year
term.
40% of any revenues collected for subleasing, management
agreements, licenses, joint ventures and any other agreements,
whether written or oral, between Rickenbacker and any third party
for a third party's operation of activity on the Property.
5% of Gross Revenues for any other related services performed on
the Property.
5% of Gross Revenues for fuel dock facility.
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(b) Percentage Rent Due. Percentage Rent shall be payable in monthly
installments, in arrears, on the thirtieth (30th) day of each month during the Terrn
(e.g., an installment due on February 28th shall be for the Percentage Rent for the
preceding January). If Percentage Rent is due for the months of January 2009 or
February 2009, that Percentage Rate shall be due on or before March 30, 2009.
Commencing on March 30, 2009 and following the thirtieth (30th) day of each
month thereafter during the Term, Rickenbacker shall deliver to Lessor. a
statement setting forth such Gross Revenues during the Percentage Rent Period,
and Rickenbacker shall pay to Lessor the amount, if any, by which applicable
percentage of the Gross Revenues for such month exceeds the monthly installment
of Minimum Annual Rent for the same month. Each statement shall be signed
and certified to be complete and correct by an officer of Rickenbacker. Such
statement shall show Gross Revenues and an itemization of any exclusions or
deductions therefrom for such month, as well as year-to-date amounts for the
current year.
Within ninety (90) days following the expiration of Rickenbacker's fiscal year,
Rickenbacker shall deliver to Lessor annual audited financial statements of the Property for the
preceding calendar year prepared by an independent Certified Public Accountant. In the event
Rickenbacker has underpaid Percentage Rent, Rickenbacker shall pay to Lessor within said
ninety (90) day period any additional rent that is due. In the event Rickenbacker has overpaid
Percentage Rent, such overpayment shall be reimbursed to Rickenbacker in the form of a credit
to Rickenbacker for the next accruing monthly installments of Minimum Annual Rent due
hereunder.
If Rickenbacker shall fail to deliver such annual audited statement to Lessor within said
ninety (90) day period, Lessor shall have the right thereafter to audit or cause an audit to be
performed, including without limitation an audit of all records required by Section 11B herein, as
may be necessary to certify the amount of Gross Revenues for such rental year, and Rickenbacker
shall pay to Lessor the cost of the audit within ten (10) days of receipt from Lessor of the cost
thereof. Any underpayment or overpayment of Percentage Rent shall be treated as provided
above.
8
B. Payment of Rent. All Rent and statements of Gross Revenues shall be paid and
sent to Lessor at the following address, or such other address as may be designated by Lessor in
writing:
City of Miami
Department of Finance
Attention: Treasury/Receipts
444 SW 2 Avenue, 6th floor
Miami, FL 33130
C. Late Fees. In the event Rickenbacker fails to pay Rent within five (5) days after it
becomes due, Rickenbacker shall pay a late fee equal to five percent (5%) of the unpaid amounts
inclusive of any accrued late fees for each thirty (30) day period or fraction thereof in which
payment remains unpaid. Acceptance of such late fee by Lessor shall, in no event, constitute a
waiver by Lessor of any default by Rickenbacker under this Lease. The late fee shall be deemed
additional rent and the rights to require it shall be in addition to all of Lessor's rights and
remedies hereunder or at law and shall not be construed as liquidated damages or as limiting
Lessor's remedies in any manner.
9. Rent Deposit
Section 10 of the Lease is amended to read as follows:
10. Security Deposit
In addition to the Rent as described in Section 9, Rickenbacker shall deposit with the
Lessor Ninety Thousand and no/100 Dollars ($90,000.00) as a security deposit (the Security
Deposit). The Security Deposit shall be payable in ten (10) equal monthly installments of Nine
Thousand and no/100 Dollars ($9,000.00). Rickenbacker shall make its first monthly installment
of the Security Deposit on or before April 1, 2009. The Security Deposit shall be placed by the
Lessor in a noninterest bearing account for the benefit of Rickenbacker.
The Security Deposit shall be considered as security for the payment of all of
Rickenbacker's obligations, covenants and agreements under this Lease. Within Thirty (30) days
after either this Lease expires or upon the earlier termination of this Lease (whichever applies),
the Lessor shall (provided that the Rickenbacker is not in material default under the terms of this
Lease) return the Security Deposit to the Rickenbacker less any portion of the Security Deposit
that the Lessor shall have used to make good any default of Rickenbacker.. In the event of any
such default by Rickenbacker, Lessor shall have the right, but shall not be obligated, to apply all
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or any portion of the Security Deposit to cure the default, in which event Rickenbacker shall be
obligated to deposit with the Lessor the amount necessary to restore the Security Deposit to
Ninety Thousand and no/100 Dollars ($90,000.00).
10. Gross Revenues
Section 11 of the Leaseis amended to read as follows:
11. Gross Revenues Defined.
"Gross Revenues" means all revenue actually received by Rickenbacker and to the extent
provided below, by Rickenbacker's other related services derived directly and indirectly from
business operations located on or initiated at the Property. Gross Revenue shall include:
1. Revenue derived from advertising and sponsorships conducted on the
Property;
2. Any parking revenue generated on the Property;
3. Revenue from sales, rentals, and services, such as pay telephones, vending
machines, and entertainment devices both for cash and on credit, rendered in
or upon the Property;
4. With respect to boatyard service, maintenance and repairs, all revenue paid to
any outside service and repair facility under contract with Rickenbacker's
subtenant or which operates as Rickenbacker's agent or subtenant's agent, for
any sale, rental, or service initiated at or from the Property;
5. All revenue received by Rickenbacker or Rent paid to Rickenbacker from
Rickenbacker's subtenants in connection with the use of the Property, any
facility thereon, or any portion thereof for any period of time, including
without limitation, for:
(i) special events, including, but not limited to, banquets, concerts,
tournaments, receptions and parties held on or initiated from the Property;
and
(ii) motion picture, commercial filming. purposes or commercial photographic
purposes held on or initiated from the Property;
6. Rent paid to Rickenbacker by subtenants of marine services;
7. All revenue received by Rickenbacker from the operation of the marina,
moorings, the boatyard and the marine fueling facility.
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11. Records, Accounts and Statements
Section 12 of the Lease is hereby amended to read as follows:
12. Records and Inspections.
A. Records. Rickenbacker shall maintain full and accurate books of account,
records, cash receipts, and other pertinent data showing its Gross Revenues for the Property,
together with copies of all sales and tax returns covering its operations at the Property, and any
other governmental tax or other returns related to the Property that show Rickenbacker's sales
therein. Rickenbacker shall install and maintain accurate receipt -printing Point of Sale system(s)
and shall record on the Point of Sale system(s) every sale and other transaction made from the
Property. At all times during the Term, upon providing ten (1(1) business days prior notice to
Rickenbacker, all records and accounts and all other supporting records, shall be available for
inspection and audit by the Lessor and its duly authorized agents or representatives during the
hours of 8:00 AM to 5:00 PM, Monday through Friday, and shall be in accordance with generally
accepted accounting principles. Said inspection and audit of such records and accounts shall not
occur more than two (2) times in any given calendar year. Rickenbacker shall, upon demand,
deliver photographic copies or computer disks, if available, thereof to the Lessor at no cost.
Rickenbacker will cooperate with the Lessor's internal auditors (or such other auditors designated
by Lessor) in order to facilitate the Lessor's examination of records and accounts.
Such books of account, records, cash receipts, and other pertinent data shall be kept for a
period of five (5) years after the end of each year of the Lease. The receipt by Lessor of any
statement, or any payment of Percentage Rent for any period, shall not bind Lessor as to the
correctness of the statement or the payment.
B. City's Right to Audit. Notwithstanding the provisions contained in Section 8 2
(b) requiring Rickenbacker to provide annual audited financial statement, at its option, Lessor
may cause, at its sole cost and expense, at any time within sixty (60) months of receipt of any
Percentage Rent statement furnished by Rickenbacker, and upon providing thirty (30) days
written notice to Rickenbacker, a complete audit to be made of Rickenbacker and its subtenants,
management agreements, licensees and concessionaires' accounting records in connection with
the sales on, from or related to the Property for the period covered by any such statement
furnished by Rickenbacker. If such audit shall disclose an underpayment of Rent, Rickenbacker
shall pay Lessor any unpaid balance within thirty (30) days of receipt of notice from Lessor that
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such balance is due. If such audit shall disclose an overpayment, Lessor shall credit such
overpayment towards the next payment of Rent due.
Rickenbacker shall allow the Lessor or 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 Rickenbacker's books and records of its and
inventories of merchandise on the Property in order to verify the amount of annual sales made in
and from the Property. Lessor shall not re-examine an accounting period which has previously
been audited, unless it has reasonable cause, and may not go back further than sixty (60) months
from the receipt of Percentage Rent.
To the extent permitted by law, Lessor shall keep any information gained from such
statements, inspection or audit confidential and shall not disclose it other than to carry out the
purposes of this Lease, except that Lessor shall be permitted to divulge the contents of any
statements in connection with any financing arrangements or sale of Lessor's interestin the
Property.
12. State of Florida.
A new Section 32 is added to the Lease to read as follows:
12. State of Florida.
Rickenbacker and Lessor acknowledge that a portion of the Land is subject to certain
restrictions contained in Deed No. 18030 made by the Trustees of the Internal Improvement Fund
of the State of Florida to the City dated July 23, 1929. Rickenbacker and Lessor will fully
cooperate and work together utilizing best efforts and diligence in order to obtain a finding of
compliance with the deed restriction or a waiver of deed restriction if a funding of compliance
cannot be obtained from the State of Florida Board of Trustees of the Internal Improvement Trust
Fund. Rickenbacker shall comply with all of the terms of and make all payments, including any
prior year payments to the State and/or the Board of Trustees of the Internal Improvement Trust
Fund of the State of Florida (the "Trustees"), if any are required. However, the City will advise
Rickenbacker in writing, within fifteen (15) days of its receipt of notice from the State, that
retroactive fees will apply and Rickenbacker will have fifteen (15) days to respond in writing to
the City as to whether or not Rickenbacker is willing to pay the retroactive fees or terminate this
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Lease. In the event that the Rickenbacker is not willing to pay all of the retroactive fees, or fails
to respond within said fifteen (15) day period, then this Amendment shall expire on the Original
Expiration Date, and all other provisions which under this Amendment become effective on the
Effective Date will be null and void.
Rickenbacker shall provide Lessor with adequate proof that the payment has been made
to the Trustees. Should Rickenbacker not make the payments when due as required, then Lessor
may make the payment and Rickenbacker shall reimburse Lessor full payment within ten (10)
days after providing Rickenbacker written notice of the monies due to Lessor.
13. Property Taxes.
Section 13 of the Lease is amended to read as follows:
13. Property Taxes
During the teiiu of this Amendment, Rickenbacker agrees to pay or cause.to be paid, all
ad valorem real property taxes and any special assessments before any fine, penalty or interest is
added for nonpayment of the Property. Notwithstanding the above, Rickenbacker agrees that to
the extent that the Property's Improvements are subject to ad valorem taxation, Rickenbacker, at
the option of the Rickenbacker, may enroll in the Dade County Ad Valorem Tax Payment Plan
(the "Tax Plan"). Failure to pay taxes when due shall constitute an Event of Rickenbacker's
Default under this Lease.
14. Manner of Operation
Section 15 of the Lease is hereby amended to read as follows:
15. Manner of Operation.
Rickenbacker shall keep the Property reasonably staffed to serve the patrons thereof, and
Rickenbacker shall maintain a standard of quality of at least equal to similar marina operations in
the area at reasonably comparable prices.
The restaurant and tiki bar 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. Rickenbacker may also close the restaurant and till bar during
construction of improvements, if deemed necessary or appropriate in its reasonable discretion,
provided, however, that in no event shall the restaurant and tiki bar be closed more than three (3)
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consecutive days during any one calendar year. There shall be no abatement of rent for any
period of time that the restaurant and tiki bar is closed.
Except where the Property is rendered untenantable by reason of fire or other casualty,
Rickenbacker shall at all times during the Term of this Lease occupy and continuously conduct
operations of the Property in accordance with this Lease.
15. Maintenance and Repair.
Section 17 of the Lease is hereby amended to read as follows:
17. Maintenance, Repair and Alterations
A. Duty to Repair. During the term hereof, Rickenbacker, at Rickenbacker's
expense, shall keep and maintain the Property thereon in good and sanitary order, condition and
repair consistent with the operation of a first-class quality marina and restaurant in the Miami
area. Upon expiration or termination hereof, Rickenbacker shall surrender and deliver up to
Lessor the Property and all Improvements thereon in good and usable condition, ordinary, wear
and tear excepted.
B. Periodic Inspections. Within sixty (60) days of every anniversary of the Effective
Date, Rickenbacker and Lessor, together, and with their respective consultants shall conduct an
inspection of the Property for the purposes of assuring that the Property is maintained in first
class condition. Rickenbacker and Lessor will each prepare a list of suggested repairs. The
parties shall endeavor, in good faith, to reconcile their respective repair lists within a 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, Rickenbacker 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 apply toward the pursuant to
Subsection D below.
C. Alterations and Additions. Rickenbacker shall not make any alterations or
additions to the Property exceeding the cost of One Hundred Thousand Dollars ($100,000) in
each instance except as defined and shall not make any structural alterations or alterations to the
exterior of the Property except as defined in Exhibit `B", shall not change the footprint of the
Property or install any signage to the exterior of the Property, ("Alterations") without the prior
written approval of the City Manager. All permitted Alterations shall be completed free of liens
and in accordance with all applicable legal requirements. The City Manager may impose, as a
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condition of the consent to an Alteration, such requirements as he/she, in his/her reasonable
discretion, may deem desirable, including, but not limited to, obtaining bonds and Builder's Risk
Insurance.
D. Process for Disagreement. In the event of any unresolved dispute between the
Lessor and Rickenbacker regarding the reserve fund and/or reserve fund expenditures, the parties
shall submit the dispute to arbitration conducted by the American Arbitration Association in
accordance with the Commercial Arbitration Rules of the American Arbitration Association then
in effect. Any such arbitration shall be held and conducted in Miami, Florida before an arbitrator
who shall be selected by mutual agreement of the parties. If agreement is not reached on the
selection of the arbitrator within ten (10) days, then such arbitrator shall be appointed by the
presiding judge of the local state court. The provisions of the 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.
16. Destruction.
Section 18 of the Lease is hereby amended to read as follows:
18. ' Destruction.
In the event the Property shall be substantially destroyed or so damaged or injured by fire
or other casualty during the term of this Amendment whereby the same shall be rendered
completely or substantially untenantable, then Rickenbacker shall commence repairs as soon as
practicable (but not later than six months thereafter without the written consent of the City
Manager) and complete such repairs within a reasonableperiod of time.
In the event the Property is substantially destroyed or so damaged or injured by fire or
other casualty that the Property cannot be rendered tenantable or that Rickenbacker elects not to
commence repair within the six month period as set forth above, or such additional period of
time as agreed to by the Lessor's City Manager, then the proceeds of the insurance policy or
policies covering such loss or damage shall be paid to the City of Miami and Rickenbacker as its
interests appear, and 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 Rickenbacker.
15
17. )(insurance.
Section 20 of the Lease is hereby amended to read as follows:
20. Insurance.
A. At all times during this Amendment, Rickenbacker shall, at Rickenbacker's sole
cost and expense but for the benefit of Lessor and Rickenbacker as their interests may appear,
maintain in full force and effect the following insurance:
1. Property Insurance. "All risk" property insurance, including coverage for
earthquake, mudslide, windstorm, hail, sprinkler leakage and flood.
i) Amounts. Such coverage shall be subject to One Hundred Percent
(100%) of the replacement cost of the Improvements (exclusive of foundation
and excavation costs), Rickenbacker's alterations, improvements, fixtures,
equipment, furniture, trade fixtures and floor coverings, including the expense
of the removal of debris as a result of damage by an insured peril (collectively,
the "Insured Property") on the Property. With respect to Wind and Hail
coverage, the policy may include a limitation on the building coverage of
$1,000,000.
ii) Deductibles. The maximum deductibles for such coverage shall be
as follows: (i) as to windstorm, greater of One Hundred Thousand Dollars
($100,000) or Five Percent (5%) of value of building and contents; (ii) as
to flood, One Thousand Dollars ($1,000) on building and One Thousand
Dollars ($1,000) on contents; and (ii) as to all other perils, One Percent
(1%) of the insured value.
iii) Loss Payees and Insureds. Lessor and Rickenbacker shall be
named as loss payees. Rickenbacker shall be the first named insured, and
Lessor shall be named as additional insured.
iv) Special Considerations for Property and Windstorm Insurance.
Notwithstanding the foregoing, the parties acknowledge and agree that
coastal properties are often precluded from being insured by private
insurers and that any casualty and windstorm insurance may have to be
written through the Florida Joint Underwriters Association -and/or other
governmental or other insurance pool which may include certain
16
prohibitions such as no replacement cost coverage and/or modifications to
"deductibles".
v) Business Interruption Insurance. Business interruption insurance
covering "All Risk" perils in the limits of which insurance, if available,
shall not be less than the annual Base Rent and the debt service payments,
if any, affecting Property during the full period of reconstruction following
a total loss. Rickenbacker shall be named as loss payee. Rickenbacker
shall be the first named insured and Lessor shall be named as additional
insured.
B. Other Insurance To Be Carried.
Rickenbacker shall also, at Rickenbacker's sole cost and expense but for the mutual
benefit of Lessor (with Lessor being named as an additional insured thereunder) and
Rickenbacker, maintain the following insurance:
1. CGL Insurance. Commercial General Liability insurance on a
commercial general liability coverage form with "broad form" coverage, or its equivalent,
including contractual liability, products and completed operations, personal injury, liquor legal
liability, garage keepers liability, if applicable, and products and completed operations, personal
injury, and premises coverage against all claims, demands or actions, bodily injury, personal
injury, death or property damage occurring in or about the Property.
i) Amounts. The limits of such coverage shall not be less than One
Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars
($2,000,000.00) aggregate. No deductible in excess of Twenty-five
Thousand Dollars ($25,000.00) will be carried under this coverage without
the City Manager's prior written consent, which shall not be unreasonably
withheld. The Lessor shall be named as Additional Insured on the policy
or policies of insurance.
ii) Marina Operators Legal Liability insurance, including coverage for
protection and indemnity, the limits of which shall not be Iess than One
Million Dollars ($1,000,000.00).
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iii) Umbrella Policy. Rickenbacker shall further maintain an excess
follow form liability umbrella policy whose limits shall not be less than a
combined single limit of Three Million Dollars ($3,000,000.00).
2. Builder's Risk. During periods of excavation and/or construction
or during periods of alteration or during periods of restoration in the event of damage or
destruction or condemnation or during periods of razing or demolition at, in or on the Property,
the improvements or any part of it, an all risk Builder's Risk policy (including extended coverage
for fire, lightning, earth movement, flood, collapse, business interruption, hurricane, boiler and
machinery) covering the interests of Lessor and Rickenbacker. Such policy shall insure that
portion of the improvements which is affected by such excavation and/or construction for not
less than One Hundred Percent (100%) replacement cost on a completed value basis (including
foundations and pilings), as well as the contingent liability from the operation of buildings, and
coverage for the demolition cost of undamaged portions of buildings. This Builder's Risk
coverage may be satisfied by an overall policy covering "additions" made to the Property or
Installation Floaters coverage.
3. E & 0 Coverage. Rickenbacker shall cause all of the key or
primary professionals retained by it in connection with any construction (e.g., architects and
engineers) to procure errors and omission coverage reasonably satisfactory to Rickenbacker for
Rickenbacker's and Lessor's benefit, in such amounts as are customarily carried by such
professionals in Miami -Dade County, Florida. As of the Effective Date, One Million Dollars
($1,000,000.00) in coverage is acceptable to Lessor. Lessor shall be named as Additional
Insured.
4. Worker's Compensation. Worker's compensation and
occupational disease coverage, including USL&H endorsement, if applicable; in the amounts and
types required by State law. Only Rickenbacker shall be named as an insured. During the
construction of any improvements, Rickenbacker shall carry or cause to be carried worker's
compensation insurance and any such other insurance as may be required by law to be carried by
Lessor and Rickenbacker or either of them in connection with the construction.
5. Automobile Liability. Automobile liability insurance covering all
owned, non -owned and hired vehicles used in conjunction with operations covered by this
Amendment. This automobile liability coverage may be. satisfied by a policy obtained by an
18
independent valet company if such valet service is contracted out by Rickenbacker, subject to
said valet company listing Lessor and Rickenbacker as additional insureds, and Lessor receiving
and approving such evidence of insurance. The policy or policies of insurance shall contain such
limits as may be reasonably requested by Lessor from time to time but not less than Five
Hundred Thousand ($500,000) for bodily injury and property damage.
6. Terrorism Coverage. The Lessor's Director of Risk Management
shall have the right to require insurance coverage for terrorist acts, if such coverage is available
in the insurance market, at a reasonable cost, with such limits and deductibles to be approved by
the Director of Risk Management.
7. Other Coverage. In the event that any other type of legislation may
be enacted imposing special liability upon Lessor or Rickenbacker by virtue of its use for any
special purposes, before Rickenbacker shall so use the Property and/or the improvements or any
part of it for such purposes, Rickenbacker shall provide insurance in form and substance, and
with insurers and limits reasonably satisfactory to Lessor's Director of Risk Management and
meeting commercial standards insuring the interests of Lessor and Rickenbacker and naming
Lessor as additional insured.
8. Amendment to Coverage. The Lessor's Director of Risk
Management shall have right to reasonably amend the herein insurance requirements by the
issuance of a notice in writing to Rickenbacker at least 90 days in advance of the renewal date on
the insurance policy in question. Such amended coverage shall be procured by Rickenbacker no.
later than the time for renewal and/or procurement of its next insurance policy.
C. Policies Obtained by Independent Contractors. Rickenbacker may
cause its independent contractors to provide some or all of the insurance coverages required
hereunder. To the extent that such independent contractors carry such coverages, Rickenbacker
shall not be required to carry such coverages, so long as the coverages obtained by Rickenbacker
and such independent contractors together satisfy the requirements of this section on insurance.
Lessor and Rickenbacker shall be named as additional insureds as to any such coverages obtained
by Rickenbacker's independent contractors.
D. Delivery of Insurance Policies. All public liability and worker's
compensation policies shall be retained by Rickenbacker. All other policies of insurance
required to be furnished shall be held jointly by Lessor and Rickenbacker. Insurance company
19
certificates evidencing the existence of all of thesepolicies of insurance shall be delivered to
Lessor.
i) Required Policy Provisions. All policies of insurance required to
be provided and obtained shall provide that they shall not be amended or canceled
on less than thirty (30) days' prior written notice to Lessor and all insureds and
beneficiaries of the policies; provided, however, that if thirty (30) days' notice is
ever commercially unavailable, then the required number of days' notice shall be
reduced to such number as is commercially available. All policies of insurance
shall further provide that they shall not be cancelled for non-payment of premium
on less than ten (10) days' prior written notice to Lessor and all insureds and
beneficiaries of the policies. All such policies shall contain waiver of subrogation
rights endorsements as required below. Lessor shall have no obligation to pay
premiums or make contributions to the insuring company or any other person or
satisfy any deductible.
ii) Delivery. On or before the Effective Date and then not Less than
twenty (20) days prior to the expiration date of any policy required to be carried
pursuant to this Section, Rickenbacker shall deliver to Lessor the applicable
respective policies and insurance company certificates evidencing all policies of
insurance and renewals required to be furnished hereunder, including those
policies that may be provided by a valet company or other independent contractor.
Receipt of any documentation of insurance by Lessor or by any of its
representatives which indicates less coverage than required does not constitute a
waiver of Rickenbacker's obligation to fulfill the insurance requirements herein.
E. Lessor's Right to Obtain. If Rickenbacker fails to pay insurance premiums
when due or to comply with other insurance requirements set forth in this Amendment,
Lessor shall have the right, at its option but not an obligation, to order insurance policies
and to advance such sums as are required to maintain or procure such insurance, and to
the extent of the money so advanced, Lessor shall be entitled to reimbursement by
Rickenbacker in which event the amount of the premium paid shall be paid by
Rickenbacker to the Lessor as additional rent upon demand and shall in each instance be
collectible on the first day of the month or any subsequent month following the date of
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payment by the City. Rickenbacker's failure to procure insurance shall in no way release
Rickenbacker from its obligations and responsibilities as provided hereof. Unless there
would ensue a lapse of coverage, Lessor shall, before making any such advance, provide
Rickenbacker with thirty (30) days' prior written notice and the opportunity to obtain the
required policies.
F. Insurer To Be Approved; Premium Receipts. All policies of insurance of
the character described herein shall be effected under policies issued by insurers
permitted to do business in the State of Florida as an admitted or non -admitted carrier and
rated in Best's Insurance Guide, or any successor thereto (or, if there is none, an
organization having a national reputation for rating insurance companies) as having a
general policyholder rating of "A" and a financial strength rating of at least "X". In the
event that a carrier with such rating is not available, the policy must be submitted to
Lessor's Director of Risk Management for review and acceptance. On written request by
Lessor, Rickenbacker shall provide photocopies of receipts showing the payment of
premiums for all insurance policies required to be maintained by this Amendment.
G. Waiver of Subrogation
i) Mutual Waiver. Each party waives all rights to recover against the
other party for any damage arising from any cause covered by any insurance
required to be carried by the waiving party, or any insurance actually carried by
the waiving party; provided, however, that such waiver shall apply only to the
extent the applicable insurers issue the appropriate waiver of subrogation rights
endorsements described below.
ii) Endorsements. Each party shall cause its insurer(s) to issue
appropriate waiver of subrogation rights endorsements to all policies of insurance
carried in connection with the Property.
18. Assignment and subletting of premises.
Section 24 of the Lease is hereby amended to read as follows:
24. Assignment and subletting of premises.
The Lessee shall not at any time during the tern of this Lease Agreement assign this
Lease Agreement or any portion or part thereof, except and by virtue of written authorization
granted by the City Manager of the City. The Lessee agrees that all monies, including but not
21
limited to rent and other Rickenbacker imposed fees, due to Rickenbacker from any existing
subleases, will not increase by more than twenty percent (20%) of the current monies due.
19. Notices.
Section 26 of the Lease is amended to read as follows:
26. Notices.
All notices shall be sent to the parties at the following addresses:
LESSOR: City of Miami
City Manager
3500 Pan American Drive
Miami, FL 33133
With copy to:
City of Miami
City Attorney
444 SW 2 Avenue, 9th Floor
Miami, FL 33130
City of Miami
Director, Department of Public Facilities
444 SW 2 Avenue, 3rd floor
Miami, FL 33130
LESSEE: Rickenbacker Marina, Inc.
Aabad R. Melwani, President
3301 Rickenbacker Causeway
Miami, Florida 33149
Lessor and Rickenbacker may change such addresses at any time upon giving the
other party written notification.
All notices under this Amendment must be in writing and shall be deemed to be
served when delivered to the address of the addressee. All notices served by mail shall be
registered or certified mail, return receipt requested.
Rickenbacker may designate additional persons for notification of default.
20. Safety.
A new Section 33 is hereby added as follows:
33. Safety.
Rickenbacker will allow Lessor inspectors, agents or representatives the ability to monitor
its compliance with safety precautions as required by federal, state or local laws, rules,
22
regulations and ordinances. By performing these inspections Lessor, its agents, or representatives
are not assuming any liability by virtue of these laws, rules, regulations and ordinances.
Rickenbacker shall have no recourse against the Lessor, its agents, or representatives from the
occurrence, non-occurrence or result of such inspection(s).
21. Americans With Disabilities Act.
A new paragraph 34 is hereby added to read as follows:
34. Americans With Disability Act.
Rickenbacker 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 II of the ADA (regarding
nondiscrimination on the basis of disability) and all applicable regulations, guidelines and
standards. Additionally, Rickenbacker shall take affirmative steps to ensure
nondiscrimination in employment of disabled persons.
22. Force Majeure.
A new paragraph 35 is hereby added to read as follows:
35. 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, windstorm, 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.
Intentionally Left.Blank
23
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
Attest:
Priscilla A. Th•mpson /k-3 Of
City Clerk
APPROVED AS TO U1 Si4I(.ANCE.
REQUIREMENTS:
/
LeeAnn Brehm, Diiector
Risk Management Department
0{
O,»
TII ITY OF MIAMI
Pedro G. Hernandez
City Manager
APPROVED AS.TO FORM AND
CORRECTNESS:
24
Print Name
STATE OF FLORIDA
COUNTY OF DADE
"LESSEE"
Print Name and Title
Date
V/09,
The foregoing instrument was waancknowledged before me this av<c4 day of
,4�1L 2009 by _ + Y ►&1 o, n t. of Rickenbacker Marina, Inc., a for profit
corporation of the State of Florida, on behalf of the corporation. He/she is personally known to me or has
produced htin dILCi-Fti.` A Cbiog. as identification and who did (did not) take an oath.
Notary Public Signature
H_t 1 Alpyr
Print Name of Notary
DID ('q 4-1-1
Commission No.
Notary Public State of Honda
Maria Elizabeth Alper
as My Commission D0699477
flo°' Expires 07/26/2011
25
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
26
•
Exhibit "A"
LEGAL DESCRIPTION
LEASE AREA NO.. 2
1 (A-1'1/)(4.4lot l y `'`t )-Ci
r
Commence at the southeast corner of Section 17, Township 54 Suulh,
Range 42 East; thence along the south line of said Section 3.7
N 89° 56' 449.5" W 2,649.84 feet to its intersection with the/center
line of Rickenbacker Causeway, as shown on "IIIE METROPOLITAN DADE
COUNTY BUL103EAD LINE", according to the plat thereof;, as recorded
in Plat Book 74, at Page 9', Sheet No. 2, of the Public Records of
Dade County, Florida; thence along -said center line N 45t' 22' 07" W
3,593.07 feet; thence.N 44°' 37' 53" E 200.00 feet to the Point of •
Beg inning -of- the _here inaftez_desc=Lberl Tract`No iti�LJ AJ04�f
' Beginning being also on tha•northea:sterly right-of-way line of said
•
"Rickenbacker. Causeway.'i;., hence •along said right-nf-way line
•
•
a,r .
N 45°•'22! 07" W •t61:0B feet to, the beginning of a curve concave, to
•
the southwest,heving•a'"radius of 1,632.40 feet; thence northwest-
eriy-and westbrl'y 1�29 84y,,£eet along said curve through a central
eagle'of 45-,•:.91t• 05";tv:: :point vf-•tangency; thence along said .
tight^ -of -way: S 894'.06!,5A8", W. 139.26 feet to its intersection with •
•
'"TitE: 1E1R0POLITAN'UADE COON BULK1lEAD. LINE", 'as andwn n said Plat
."? ��:'�Egok •,74;',thence along •said bulkhead'line N 44° 06' ,48" E.908.00
e,eh •c:;: tence'.:along.:'fhe southwesterly,'•prdperty line of .the ttact of ..
!"G�4i Cde� lt„
„...1•101.
Exhibit "A”
LEGAL DESCRIFTE6N .
LEASE AREA No. 2
lAnd described in revised Ev.hibir "A" lynse.betwi,en "ThC. City of
1.11Ami." (lessor) end Specially It'stnurets Corporatinn "Misty, .
Pelican RestnnirnOC" (lessee) S 4n9 2207° E 1,024.40 reel: thence -
N 44° 37' .53'4. 250.00 fret; Lhence S 45° 22' 07" E 440..06 feet.; •
thence S 10° 22' 07" E 344.14 Uri; thence S 4437' 53" W 61.04 .'
feet to the northeasterly corner of•a two -foot concrete seawall;
thence continue along said line S 44° 37' 53" W 150.57 feet; thence
S 45° 22' 07" E 285.17 feet; thence S 44° 37' 53" W 161.00 feet to
tfrr-5anaccesh
road to restaurant.
Containing 20.975 acres, more or less.
•
..•
EXHIBIT "B"
CAPITAL IMPROVEMENTS
27
RICICENBACKER MARINA, INC.
KEY BISCAYNE, FL
Tel: 305-3t I-1900
i ax: 305-361-2036
[moil; ,i ] nba@bellsouah.net
February 2, 2009
Mark J. Quinlivan, M.A.J., State Certified General Appraiser
President
Quinlivan Appraisal P.A.
5730 SW 74th St, Ste 300
South Miami, FL 33143
3301 Rickenbacker Causeway
Key Biscayne, Florida 33149
w'w w_rickenbact:ennnrina.com
Re: Appraisal for Riekenbacker Marina, Inc. (JU\1I) — Schedule of Capital Casts
Dear Mr. Quiniivan,
As per Mrs. Valdes's request_ please find the revised schedule and scope of capital costs to
be implemented in your appraisal of RM1. As always, please call me at any hour for any
questions, comments, orconcents.
1. hIIAMI IRON WORK, INC.
This estimate includes the removal of the existing chain link fence and
• replacement of the entire fence running along the dockage area and dry storage frontage
facing the parking lot. The replacement fence will be a more -ornate, white, welded
galvanized rod fence, with the outwardly curved spikes along the top edge for security.
New sliding gates will also be placed at Ike entrance of the dry storage area and an
automized security gate \vi11 be placed at each entrance of the docks.
Fence and Gate . S 66,504.67
Exhibit "B"
2. MA UN & MARIN CONSTRUCTION
The pier improvements consist of 90 "finger piers" that will nun perpendicular
from cacti main pier (A, 13, C, D) and parallel to each vessel for greater convenience of
access in boarding, maintaining the vessel, and docking. Please note that we are not
adding more slips to the facility; we are merely enhancing our existing ones.
'The shoreline stabilization includes the placement of street piling to Conn a sea
wall, as n bulkhead, against erosion along the entire northern facing arca of our parking
lot (Marine Stadium basin). This will be constructed to prevent erosion of the shoreline
alorig the surface lot. This improvement is a condition precedent to the eventual building
of a boardwalk or waterfront promenade (Master Plan item), as shoreline stabrization is a
key element in any waterfront construction. As sea levels rise this Will also be u crucial
clement against erosion of shoreline and eventually the surface lot. Moreover, both the
pier and shoreline improvements will last and benefit -tire City far beyond the expiration
of the lease extension terra.
Pier improvements S 297,540.00
Pier improvements S 3650.00'.
Shoreline Stnbilizati011 $ 1.85,450.00
3. SURGE SOLUTIONS GROUP
This item, will ensure that.t}re underground fuel tanks at oar fuel station will be in
compliance once the modified code requiring all underground tire] tanks to be double
walled goes into enforcement at the end of 2009. The relining is a cost effective, code
compliant option for '`double walling" the tnnks (this option is $30k cheaper than
replacement and there is far less business interruption.) 11ie tanks are removed, cleansed
and vacuumed, and are then injected with a compound to form a mold that reintbrces the
walls of the tank.
Fuel tank relining S 128,967.18
4. PINARD CQNSTRUC"1'1ON (dry. storage)
This is includes ilie execution of the first trade in the dry storage repaving job, the
cutting and demolition of the existing slab. The above sub contractor will cut into smaller
pieces and remove the existing slob so that a new rebar foundation may be laid onto a
level surface, prior to the pouring of new concrete.
Concrete cutting and demolition 39,500 x 3 $118,500.00
5. WHITECAP CONSTRUCTION SUPPLY (dry storage)
This includes the fabrication and delivery of the rebar to be laid as n foundation
for the new slabs.
RJCKEINBACKER MARINA, INC.
KEY BISCAYNE, EL
Tci: 305-361-1900
Fax: 3D5-361-2036
Email: rickenbar::bellsonth.net
February I3, 2009
Madeline Valdes
Director
Department of Public Facilities/Asset Management
City of Miami
444 S.W. 2nd Ave_ 3'4 Floor
Miami, FL 33128
Re: Ricltenbacker Marina —Aesthetic improvements
Dear Mrs, Valdes,
330) Rickcnbacker Causeway
Key Biscayne, Florida 33149
www.rickenbackermarina.com
Rickenbacker Marina, Inc. (RAC, along with the $1.3 million in capital improvements
already pledged, will renders number 0/aesthetic improvements, including but not limited to the
following:
1. The removal of the Key Biscayne Boat Rental (KBBR) trailer office, as well as the large
shipping container currently used by them as a storage unit. Also to be removed arc all of
the steel racks that house their personal water crafts (PWC's) on the northeastern portion
of the subleased parcel (Stadium Basin side, adjacent to our dry storage). A portion of
this area will most likely he used as much needed additional parking space and the
balance will likely be occupied by a.boat dealership satellite office.
2. Re -painting of the restaurant building at the entrance of RMI's lease parcel, to give it a
more nautical appearance. Please note that the entire roof of the restaurant will also be
replaced, as mentioned in the capital costs binder.
3. Re -surfacing and re -striping of the entire surface parking lot in the RMI lease parcel. This
does not include the public roadway lending to the Rusty Pelican. However, should the
City so desire that this public roadway be re -surfaced and striped, MAI will seek the •
required approvals and render this improvement.
Exhibit "B"
4. Landscaping - native plants only i.e., palms, silver buttonwood, gumbo limbo, etc. - in
ornamental planters will be placed in the following areas on the lease parcel:
a. Along the entire northern facing border of the parking lot, along the Stadium Basin
b. Along the entire southern facing border ache parking lot, along our wet slip basin.
c. Along the entire southern facing border of our dry storage area (already commenced).
d. Along the entire western having border of the dry storage area (already con ntenced).
5. Low voltage landscape lighting to highlight the existing and new landscaping at night.
This will provide u more auspicious pathway for R]vll and Rusty Pelican patrons at night.
6. A shaded pavilion area for our customers at the main entrance to the wet slips. This will
include the installation of ornate brick pavers on the ground. A shaded pavilion area for
our dry storage customers may also be constructed in a portion of the area previously
occupied by KBBR — also to include, with the City's approval, a paved walkway leading
to the current launch area on the adjacent City marina parcel. This will be u secured,
gated, pedestrian walkway that will be within our setback, and will not encroach upon the
wetlands, and thus will allow ROT to circumvent approval from DERM. Remember, eve
"Will gain some upland area upon the installation of the seawall and filled in area behind it
(refer to engineer's drawings in the capital costs binder.)
7. Also, as mentioned in the previous capital costs binder, we will be installing the more
ornate galvanized and fencing..New signage will be placed on or in front the fenced areas
as well as all areas where the required signage currently appears.
Thank you again for your continued. guidance throughout this negotiation. Please know that
RM1 is not limiting itself to the above improvements and is open to any suggestions that your
department or the City Commission may have.
Respectfully Submitted,
Aabad R. Melwani, Esq.
President
Rickebacker Marina, Inc.
Cc: Larry Spring, Chief Financial Officer, City of Miami
Marc D. Sarnoff, Commissioner District 2, City orMinmi
Pedro G. Hernandez, City lvtanager, City ofMiami
r,I
Pe
far
trf0it
PROPERTY LEASE
MARINA AND MARINA SUPPORT FACILITIES TO
BE DEVELOPED, OPERATED AND MAINTAINED ON
AND AROUND BAY BOTTOM LAND 1N THE LAGOON
SITUATED NORTHWEST OF MIAMI MARINE STADIUM.
C5ZieIeAktoae ie r Ylnvi,na6
LEASE DATE:
LESSOR:
LESSEE:
THE CITY OF MIAMI
MARINA BISCAYNE INC.
U�ds�QI dam,
INDEX F4f
uPY,
49 ypT
Section
WITNESSED 1
1 DESCRIPTION OF THE PREMISES • 2
2 TERM 3
3 USE 3
.4 CONDITIONS PRECEDENT 3
v .
5 IMPROVEMENTS BY LESSEE 4
6 CONSTRUCTION WARRANTY 7
7 OWNERSHIP OF IMPROVEMENTS 7
8 PLEDGE OF LEASEHOLD INTEREST 8
9 RENT 8
10 RENT DEPOSIT 10
11 GROSS RECEIPTS 10
12 RECORDS, ACCOUNTS AND STATEMENTS 10
13 PROPERTY TAXES 11
14 LICENSES AND PERMITS 11
15 MANNER OF OPERATION 11 ✓
16 CONFORMITY TO LAW 11
17 MAINTENANCE AND REPAIRS 11 ✓
18 DESTRUCTION 12
19 INDEMNIFICATION 12
20 INSURANCE 13
21 UTILITIES 14
22 DEFAULT 14
23 BANKRUPTCY OR INSOLVENCY 15
24 SUBLEASE AND ASSIGNMENT 15
25 INSPECTION OF PREMISES 15
26 NOTICES 16
• 27 ATTORNEY FEES 16
.28 WAIVER 16
29 TIME OF ESSENCE 16
30 TERMS BINDING ON SUCCESSORS 17
31 SIGNS 17
EXHIBIT "A" (Survey)
EXHIBIT "B" (Parcel Survey Sketches)
LEA S E AGREEMENT
TIIIS LEASE AGREEMENT entered into this Ylltday of
, 1977, by and between The City of Miami, a municipal
corporation 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 of Florida, hereinafter referred to as LESSEE
W I T N E S S E T H:
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 :reto and made a part hereof.
-2-
2_ TERM
The term shall be 20 yearscommencing with the receipt
by Lessor of all permits and approvals required for the construction �
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 aid 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 .
-3-
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
-4-
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 Master*Plan 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 hdats
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 constriction of 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 mainL�.ance 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 utilit'es 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 khree 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 personalpropeLty
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
abona fide loan, the proceeds of which are to be used solely for the
-7-
I
r 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 writBten 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 30AT 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 LO?, of the gross
receipts from wet and dry storage, excluding taes, 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 18 months after the lease execution as shown in #2f whichever
date occurs first.
PHASE II: Beginning eight months after the initial rental
guarantee, monthly minimum rent shall increase to fifteen hundred dollars
($1,500) per month. (•:�trzr ou gts,9r. V47- g7q�
PHASE III: Beginning sixteen (16) months after the initial
rental guarantee, monthly minimum rent shall increase to two thousand
dollars ($2,000) per month( r T ropy 1. gri98'el)
-8-
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.6 )191 lin
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. (L T'N It11)
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.)
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.(ZW/,,q4J,
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.(1A0I,I411t)
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. ( Q.(,2vvq)
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 i) 11, Gross
Receipts)
9-
•
Per -
cent -
_aPe_
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 not 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, or such 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 he 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.
-10-
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. LICENSES 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 Lu 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,
to the 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. DESTRUCTION
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 or facilities not available to Lessee.
In the event the premises are subgtantially 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 bepayable 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
-12-
agreement for any personal injury, loss of life, or damage to property,
sustained in or about theleased 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 anY such 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 accruing 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 and. effect 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:
907 of replacement value of all improvements, less the
concrete docks and steel boat racks.
Certificates of such insuranceshall 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 not 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
9
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 snakes 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 and 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
time during business hours for any
City deems necessary or incidental
of Lessor's duties and obligations
its rights or functions.
enter upon the property at any
purpose the City Manager of the
to or connected with the performance
hereunder.or in the exercise of
-15-
•
26. NOTICES
A11 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
rt.Miami, Florida, 33133
LESSEE: Marina Biscayne, Inc., Martin Rabin, President_,
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
party 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 10% 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.
-16-
(77
ATr
30. TERMS BINDING ON SUCCESSORS
A1I of the terms and conditions of this lease shall inure.
to the benefit of and he 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 dale first above written. 1.4
7-TCITY,-OF MIAMI, FLORIDA, Lessor
C±2y'Clerk
Prepared and approved by:
•
By
C,TY MANAGER
MARINA BISCAYNE, INC., Lessee
/f.'
By ��`h.. �..
// President
\/!a. ._
Judith Ho lan er, Asst. City Attorney
APP.
G
OMED AS TO FORM AND CORRECTNESS:
TTORNEY
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LECAL DESCRIPTION
LEASE AREA NO. 2
Commence at the southeast cornier of Section 17, Township 54 South,
Range 42 East; thence along the south line of said Section 17
N 89° 56' 69.5" W 2,649.84 feet to its intersection with the center
line of Rickenbacker Causeway, as shown on "THE METROPOLITAN DADE
COUNTY BULKHEAD LINE", according to the plat thereof, as recorded
in Plat Book 74, at. Page 9, Sheet No. 2, of the Public Records of
Dade County, Florida; thence along said center line N 45° 22' 07" 1J
3,593.07 feet; thence N 44° 37' 53" E 200.00 feet to the Point of
• Beginning-of-the.hereinafter._described Tract_No,.- 7 said Zoint of
Beginning being also on the northeasterly right-of-way line of said
"RickenbackerCauseway."-;.thence along said right-of-way line
'N 45° 22! 07" W 761:08 feet to. the beginning of a curve concave to
•
-the southwest, having a" -radius of 1,632.40 feet; tfience northwest-
erly and westerly 1,29644,_feet along said curve through a central
• engle of 45° 31' OS" to a point of tangenej;•thence along said-•
right-of-wap'S 89°'_06,' 48" W.139.26 feet. to its intersection with
"TILE:METROPOLITAN':DADE COUNTY BUL}OIEAD.LINE",•as shown in said Plat
ook 74;'thence along said bulkhead line N 44° 06'.48" E 908.00
ieet4-thence.:along.the southwesterly property line of .the tract of
LEGAL DESCRIPTION
LEASE AREA N0. 2
land described in revised Eo;hibit "A" lcnse botw'•en "The City of
Ninmi" (lessor) and Specialty Restaurants Corporation "Rusty.
Pelican Restaurant" (lessee) S 4' 22' 07" E 1,024.40 (eel; thence
N 44° 37' S3"1E 250.00 feet; thence S 45n 22' 07" E 440.06 feet;
thence S 10° 22' 07" E 344.14 feet; thence S 44° 37' 53" W 61.04
feet to the northeasterly corner of a two -foot concrete seawall.;
thence continue along said line S 44° 37' 53",W 150.57 feet; thence
S 45° 22' 07" E 285.17 feet; thence 5 44° 37' 53" W 161.00 feet to
the_Point_oLBegLnning.;_less-the-following:—Lease -Nn.- 3--and--access
road to restaurant.
Containing 20.975 acres, more or less.
%r, laery¢Y gV%biO,)
CDRaNTLIOLPLEDGE OF LEASEHOLD INTEREST
WITNESSETH:
WHEREAS, on July 0, 1977, the City of Miami ("CITY") as
Lessor and Marina Biscayne, Inc., as Lessee, entered into a Lease
Agreement, as amended by that certain Memorandum of Understanding
between said parties, dated July 8, 1977, hereinafter
collectively referred to as the "Lease"; and
WHEREAS, the CITY approved the assignment of the Lease by
Marina Biscayne, Inc. to Michael D. Brandon as Trustee for Marina
Biscayne, Ltd. on January 5, 1903 (the "1983 Assignment"); and
WHEREAS, the CITY, on June 25, 1986 approved the assignment
of the Lease by Michael D. Brandon, as Trustee, to Rickenbacker
Marina, Inc. (the "1986 Assignment"); and
WHEREAS, the 1983 Assignment contemplated the execution of a
leasehold mortgage which was issued by Rickenbacker Marina, Inc.
as a consequence of the 1986 Assignment; and
WHEREAS, Rickenbacker Marina, Inc. now wishes to pay off the
existing mortgage and execute a new mortgage with Rey Biscayne
Bank and Trust, Co. in the amount of $1,250,000; and
WHEREAS, Rickenbacker Marina, Inc., pursuant to Paragraph 8
of the Lease is required to obtain the consent of the CITY to
pledge any leasehold interest in the Lease;
NOW, THEREFORE, for value received the parties hereto agree
as follows:
1. RECITALS
All of the above recitals are true and correct in all
respects.
2. CONSENT TO PLEDGE
The CITY hereby gives its consent and grants its
authorization to Rickenbacker Marina, Inc. to pledge its
leasehold interest in the Lease to Key Biscayne Bank and Trust,
Co. for a term not to exceed the Lease term and in an amount not
to exceed $1,250,000.
IN WITNESS WHEREOF, the undersigned have executed this
Consent on this l F-rif day of �3.z,J_rz may, 1991.
4 RATTY RAI '_.
/2 City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
J
R ANDEZ
City Atto ney
ROD/pb/M248
2/04/91 9:56 AM
-2-
CITY OF MIAMI, a municipal
corporation rf the State of
Florida
By:
CESAR H. ODIO
City Manager
INDEX
Section Page
WITNESSED 1
1 DESCRIPTION OF THE PREMISES 3
2 TERM 4
3 CONDITIONS SUBSEQUENT 4
4 USE - 5
5 ' IMPROVEMENTS OF LESSOR 5
6 . IMPROVEMENTS OF LESSEE •5
7 CONSTRUCTION BOND 8
8 OWNERSHIP OF IMPROVEMENTS 8
9 PLEDGE OF LEASEHOLD INTEREST 8
10 RENT 9
11 RENT DEPOSIT 10
12 GROSS RECEIPTS 10
13 - RECORDS, ACCOUNTS AND STATEMENTS 11
14 PROPERTY TAXES 12
15 LICENSES AND PERMITS 12
16 MANNER OF OPERATION 12
17 CONFORMITY TO LAW 13
18 MAINTENANCE AND REPAIRS 13
19- DESTRUCTION 13
20 INDEMNIFICATION , 14
21 INSURANCE 14
22 UTILITIES - 15
23 • DEFAULT 16
24 BANKRUPTCY OR INSOLVENCY 16
25 SUBLEASE AND ASSIGNMENT 17
Section Page
26 INSPECTION OF PREMISES 17
27 NOTICES 17
28 ATTORNEY FEES 18
29 WAIVER 18
30 TIME OF ESSENCE 18
' 31 TERNS BINDING ON SUCCESSORS 18
32 COVENANT OF SPECIALTY RESTAURANTS
CORPORATION 18
33 SIGNS 19
EXHIBIT "A" 22
EXHIBIT "B" (Location Sketch)