HomeMy WebLinkAboutExhibit 1LEASE AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
DAVID ONE LLC.
FOR THE USE OF
A CERTAIN PORTION OF
THE CITY -OWNED PROPERTY LOCATED AT
3385 PAN AMERICAN DRIVE
MIAMI, FL. 33133
LEASE AGREEMENT
This LEASE AGREEMENT ("Lease") is made as of the day of
, 2012, ("Effective Date"), by and between the CITY OF MIAMI,
FLORIDA ("Lessor"), a municipal corporation of the State of Florida acting by and
through the City Manager ("City Manager"), and with the approval of the City
Commission of Miami having its offices at 3500 Pan American Drive, Miami, Florida
33133 and David One, LLC., a Limited Liability Company, having its offices at 1200
Brickell Avenue, Miami Florida 33131 ("Lessee").
The Lessor and Lessee, together the "Parties," agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
Any word contained in the text of this Lease shall
plural and as the masculine, feminine or neuter gender
particular context. More specifically, however, for the
following words shall have the meanings attributed to them
be read as the singular or the
as may be applicable in the
purposes of this Lease, the
in this Section:
1.1.1 "Additional Rent" means all additional sums, charges, or amounts of
whatever nature to be paid by Lessee, not defined as Base Rent or monthly Percentage
Rent, in accordance with the provisions of this Lease, whether or not such sums, charges
or amounts are referred to as additional rent.
1.1.2 "Applicable Law" means all laws of the United States, Florida Statutes,
City of Miami and Miami -Dade County ordinances, codes, rules, regulations, resolutions,
orders, judgments, decrees and injunctions from courts having jurisdiction over the
Property, rules, and requirements of State and local boards and agencies with jurisdiction
over the Property, now existing or hereafter enacted, adopted, foreseen and unforeseen,
ordinary and extraordinary, which may be applicable to the Property or any part of it.
1.1.3 "Assignment" refers to the complete transfer of the rights and obligations
of the Lessee under the Lease to a third party, whereupon the third party Assignee
becomes the Lessee under the Lease and takes over all of the Lease Area and the rent and
other obligations associated with the Lease, thereby substituting the old tenant's rights
and obligations.
1.1.4 "Assignee" refers to the third -party entity taking over the rights and
obligations of the Lessee or assignor or owner of the Leasehold Estate.
1.1.5 "Base Rent" shall mean the annual Base Rent due and payable by the
Lessee on a monthly basis for the use of the subject Property and which commences at
$60,000.00 per month ($720,000 per Annum) as of the Effective Date. The Base Rent
shall be increased on the first day of the second year of the Lease Term to $65,000 per
month ($780,000 per Annum) and on the first day of the third year of the Lease Term to
$70,000 per month ($840,000 per Annum).
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1.1.6 "Business Days" means Monday through. Fridayexcluding legal holidays.
1.1.7 "City" means the City of Miami, a municipal Corporation of the State of
Florida.
1.1.8 "City Manager" means the administrative head of the City's government
who is authorized to execute this Agreement and other documents included notices
hereunder.
1.1.9 "Date of Taking" means the earlier of (i) the date on which actual
possession of all or less than all of the Property, as the case may be, is acquired by any
lawful power or authority pursuant to the provisions of Applicable Law; or (ii) the date
on which title to all or less than all of the Property, as the case may be, has vested in any
lawful power or authority pursuant to the provisions of Applicable Law.
1.1.10 "DEP" means the State of Florida Department of Environmental
Protection.
1.1.11 "Effective Date" means the date that possession of the Property (as
hereinafter defined) is delivered to the Lessee. The Effective Date is sometimes referred
to in the Lease as the Possession Date and both the Effective Date and Possession Date
shall be one and the same date.
1.1.12 "Equity Contribution" means that the equity in the Project provided by
Lessee personally or through one or more Persons which are wholly owned by the Lessee
and over which Lessee has Voting and Operational Control, shall equal not less than
$4,000,000. The foregoing sum shall include all demonstrable hard costs and soft costs
reasonably related to the Project expended or reimbursed by the foregoing parties prior to
or after the date hereof. Notwithstanding the Equity Contribution, the Lessee has
deposited funds in escrow in the amount of $5,500,000, which funds shall be available to
Lessee in order to ensure that Leasehold Improvements required by the teinis of this
Lease are paid.
1.1.13 "Fair Market Rent" means the rent that a similar property being used as set
forth herein, with such additional uses as may be located on the Property, would bring in
a competitive and open market under all conditions requisite to an arms length
transaction, the parties each acting prudently, knowledgeably, and assuming the rent is
not affected by undue stimulus. Implicit in this definition is consummation of an
agreement as of a specified date under conditions whereby:
(i) Both parties are typically motivated;
(ii) Both parties are well-informed or well-advised and acting in what
they consider their own best interest;
(iii) A reasonable time is allowed for exposure in the open market;
(iv) Payment is made in terms of cash in U.S. dollars in teinis of
financial arrangements comparable thereto; and
(v) The rent represents the normal consideration for property leased,
under the current marker conditions unaffected by special or
creative financing or concessions granted by anyone associated
withlease.
1.1.14 "Force Majeure" means any period of delay which arises from or through
acts of God; strikes, lockouts, or labor difficulty; explosion, sabotage, accident, riot, or
civil commotion; act of war; fire or other casualty;. legal requirements; delays caused by
the other party; and causes beyond the reasonable control of a party.
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1.1.15 "Gross Revenues" shall have the meaning described in Section 4.1.3 of the
Lease.
1.1.16 "Impositions" means all governmental assessments, including assessments
imposed by the City and the State of Florida, franchise fees, fire fees, excises, license and
permit fees, submerged land fees, levies, charges, and taxes, including ad valorem real
estate taxes on the Property and the Leasehold Improvements, general and special,
ordinary and extraordinary properly levied against the Property and the Leasehold
Improvements and/or the Lessee's Leasehold Estate which constitute a lien on the
Property or the Leasehold Improvements, due as a result of the Lessee use of the
leasehold and/or due to the Lessee's operation of a commercial business on the Property.
1.1.17 "Leasehold Estate" means all of Lessee's right, title and interest as Lessee
in, to and under this Lease, the Property and the Leasehold Improvements.
1.1.18 "Leasehold Improvements" means a description of remodeling/renovation
work to be done to the physical plant as described in Exhibit "A" entitled "Schedule of
Leasehold Improvements" and all furnishings, fixtures, or equipment to be installed in
accordance with Section 6.1, and all other items and improvements installed or
constructed thereafter, from time to time during the Lease Term that are hereafter located
upon the Property.
1.1.19 "Lease Teiui" means the period of time fixed in Section 3.1 and shall be
deemed to include the additional period of time fixed in Section 3.2 if Lessee exercises
Lessee's right to renew the Lease.
1.1.20 "Lease Year" means twelve (12) consecutive months. The first Lease
Year shall begin on the Effective Date. Each succeeding Lease Year shall commence
upon the anniversary date of the Effective Date.
1.1.21 "Lessee" has the meaning ascribed to it in the opening paragraph of this
Lease as well as Lessee's successors and assigns.
1.1.22 "Net Condemnation Award" means the actual amount of the award paid in
connection with or arising from the acquisition or other taking of all or less than all of the
Property, as the case may be, less all reasonable out-of-pocket expenses incurred by
Lessor or Lessee in connection with obtaining such award, including, without limitation,
all reasonable attorneys' fees and disbursements incurred in connection therewith.
1.1.23 "Net Insurance Proceeds" means the actual amount of insurance proceeds
paid following an insured casualty to the Leasehold Improvements less all costs and
expenses including reasonable attorneys' fees incurred by the Lessee and/or Lessor with
respect to the collection thereof.
1.1.24 "Net Sale Proceeds" shall mean the net proceeds to Lessee, or owner
transferring such interest, (pursuant to Article XI herein), remaining after payment of (i)
any other debt relating to the Property as prorated proportionately to the interest being
transferred; and (ii) all reasonable costs and expenses of the sale or Transfer, including
commissions, fees, and closing costs.
1.1.25 "Parties" means the Lessor and Lessee.
1.1.26 "Percentage Rent" is calculated as a percentage of Gross Revenues from
Lessee's operations, which includes revenues from those operations, services or activities
furnished by the Lessee and Sub -lessees that enter into agreements with Lessee to
provide the activities or vending machines on the Property and collect payment directly
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from patrons or invitees to the site.
1.1.27 "Property" means the land, buildings, improvements and authorized
submerged lands located at 3385 Pan American Drive, Miami, Florida, as more
particularly described in Exhibit `B 1" and Exhibit "B2" attached herewith and
incorporated herein by reference.
1.1.28 "Proposal" means the document received by the Lessor dated June 15,
2012 in response to the RFP.
1.1.29 "Rent" means monthly Base Rent and monthly Percentage Rent , as such
amounts are described and fixed in Section 4.1.1 and adjusted pursuant to the terms of
Section 4.1.2 herein.
"Rent" means greater of the monthly Base Rent or Percentage Rent, as such
amounts are described and fixed in Section 4.
1.1.30 "RFP" means the document entitled Request for Proposals for the leasing
of a city -owned property located at 3385 Pan American Drive, Miami Florida, issued by
the City of Miami on March 16, 2012, a copy of which is available at the City Clerk's
Office.
1.1.31 "Sublease" means any lease (excluding this. Lease), sublease, license,
concession, permit agreement, or other agreement by which Lessee or any person or other
entity claiming under Lessee, demises, leases, subleases, licenses or sublicenses to or
peunits the use or occupancy by another person or entity of any part of the Property and
Leasehold Improvements.
1.1.32 "Subleasehold Estate Transfer" means any direct or indirect, voluntary or
involuntary, sale, transfer, or assignment of any right, title or interest in and to any
Sublease or any Subleasehold Estate.
1.1.33 "Sub -lessee" means any person, firm, corporation or other legal entity
using or occupying or entitled to use or occupy any part of the Property or the Leasehold
Improvements under a Sublease.
1.1.34 "Submerged Lands" means any Submerged Lands within the Property
which have been authorized for marina or marine -related uses by the Lessor and/or the
Lessee by the State of Florida Board of Trustees for Internal Improvement Trust Fund
("TIITF") or by its administrative arm, DEP.
1.1.35 "Submerged Land Fees" means all fees, waivers, rentals and taxes as
determined by DEP for use of the Submerged Lands area.
1.1.36 "Transfer of Control" means any lessee interest assignment which results
in a change in voting and operational control of lessee.
1.1.37 "Transferor" means the owner who is transferring in accordance with
Article XI herein.
ARTICLE II
LEASE OF PROPERTY
Section 2.1 Lease of Property.
The Lessor, for and in consideration of the foregoing Property and of the
covenants and agreements hereinafter contained to be performed and observed by the
Parties, and in consideration of Ten and 0/100 Dollars ($10.00) and other good and
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valuable consideration paid by Lessee to Lessor, the receipt and adequacy of which are
hereby acknowledged, does hereby lease, let and demise to the Lessee, and the Lessee
hereby leases from the Lessor the Property, subject to the following terms and conditions,
to have and to hold the said lands, tenements and hereditaments, with all of the rights,
privileges and appurtenances, thereunto belonging or pertaining unto Lessee for the term
herein specified, unless this Lease shall be sooner terminated in a manner hereinafter
provided.
Section 2.2 Purpose of Use and Occupancy.
The Lessee will use and occupy the Property as a full -service, dry storage marina
and casual outdoor restaurant, with ancillary minor boat repair functions, other ancillary
marine -related services, fuel sales, other related food services and for no other purpose or
use of any kind without first obtaining the permission of. the City Manager, which
permission shall not be unreasonably withheld conditioned or delayed.
Section 2.3 Use of Submerged Lands.
The use of any submerged land owned by the State of Florida, shall be subject to
approval by the State of Florida DEP and may contain restrictions set forth by DEP for
the use of said Property, as more particularly described in prospective Exhibits "C" and
"D" attached hereto to be incorporated and made a part hereof. In the event DEP fails to
issue an agreement for the use of the Submerged Lands, then either party shall have the
right to terminate this Agreement pursuant to Section 14.5 herein, without liability or
recourse.
Section 2.4 Suitability of Property.
Lessee acknowledges that neither the Lessor nor any of Lessor's officers,
representatives, or employees has made any representation or warranty with respect to the
Property or with respect to the suitability or fitness of the Property for the conduct of
Lessee's marina and/or restaurant operations or for any other purpose, except as set forth
in this Lease or in the RFP. The execution of this Lease by Lessee shall establish that the
Lessee accepts the condition of the Property "AS IS", subject to the representations set
forth in this section, the RFP or elsewhere in this Lease.
Notwithstanding the above, in accordance with that certain Agreement
between Lessor and the current licensee of the Property, the Lessor shall use diligence
and best efforts to ensure that the Property is delivered to the Lessee with all of the
improvements, fixtures and personal property currently existing on the Property ("Exiting
Improvements") as further described on that certain Exhibit "G" Existing Improvements.
Furthermore, the Lessor shall use diligence and best efforts to cause for the Existing
Improvements to remain on the Property for Six (6) Months from the Effective Date
subject only to the Lessee's desire to have same removed. The Lessor shall use diligence
and best efforts to cause for the Existing Improvements to be surrendered to the Lessee in
the same condition as exists on the date this Lease is executed.
Section 2.5 Limited Representations by Lessor.
Lessor makes the following representations, covenants and warranties
which shall survive the execution of this Lease and the taking of possession of the
Property by the Lessee:
(a) That Lessor has taken all requisite actions to make this Lease binding
upon the Lessor, and the Lessor is indefeasibly seized of marketable, fee simple title to
the Property, and is the sole owner of and has good right, title and authority to convey
and transfer all property, rights and benefits which are the subject matter of this Lease.
(b) That no party except Lessee shall, on the Effective Date, be in or have any
right to possession of the Property, except for those certain dry slip tenants as shall be
disclosed to the Lessee.
(c) That there is on the Effective Date legal and physical ingress and egress to
the Property from a paved public street for vehicular traffic and perpetual legal and
physical ingress and egress for pedestrian traffic.
(d) The Property may used and operated only for the purpose set forth and
as contemplated by the RFP and this Lease;. and there are no Applicable Laws, private
restrictions or other conditions which restrict or prevent the Property from being used and
operated for restaurant operations on the Effective Date.
(e) All of the representations and warranties of Lessor contained in this Lease
shall continue to be true as of the Effective Date and said representations and warranties
shall be deemed to be restated and affirmed by Lessor as of the Effective Date without
the necessity of Lessor's execution of any document with regard thereto, and the Lessor's
liability (except with respect to the environmental condition of the Property which is
expressly addressed in Article XII of this Lease) therefore, shall survive the signing of
this Lease. Should any of the representations and warranties prove to be incorrect, it shall
be Lessor's obligation to cure those warranties and representations which are set forth
herein forthwith at Lessor's expense.
Section 2.6 Possession.
On the Effective Date, the Lessor shall deliver possession of the Property to
Lessee.
ARTICLE III
TERM
Section 3.1 Term of Lease.
The initial, term of this Lease is for a period of Forty (40) years, commencing on
the Effective Date ("Teuni"). The Effective Date shall be the date upon which actual
possession of the Property is tendered to the Lessee.
Section 3.2 Option to Renew.
The Lessee has the option of extending this Lease for one (1) ten-year period, as
long as the Lessee is not in default of any of the Lease provisions ("Renewal Term"). To
exercise the Renewal Term, the Lessee must give Lessor written notice not less than three
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hundred and sixty five (365) days before the expiration date of the initial Lease Term.
The Renewal Tenn will be on the same taints and conditions as the Lease Tenn, except
that the Rent will be adjusted as set forth in Article IV below.
ARTICLE IV
RENT, FEES AND PAYMENTS
Section 4.1 Amount of Rent
The Lessee covenants that, it shall pay to the Lessor as Rent for the Property, the
Base Rent in accordance to Sections 4.1.1 and 4.1.2 herein from the Effective Date of the
Agreement until the day preceding the Possession Date. From and after the Possession
Date forward continuously for the duration of the Lease Tein', the Lessee agrees to pay
an amount equal to the greater of the minimum monthly Base Rent (as defined in Section
4.1.1) or Percentage Rent to the Lessor.
4.1.1 Base Rent.
From and after the Effective Date the Lessee shall pay to the Lessor, Base
Rent payable in advance on the first day of each month in equal monthly installments
("Minimum Monthly Base Rent"). The Minimum Monthly Base Rent shall be
$720,000.00 in Lease Year 1 (including the period of construction/renovation),_
$780,000.00 in Lease Year 2 and $840,000 Lease Year 3 of the Lease. In Lease Year 6
and at the beginning of every sixth (6th) year thereafter, the Rent shall be adjusted
according to increases determined by the consumer price index (CPI), in accordance with
Sections 4.1.2 below.
4.1.2 Consumer Price Index (CPI) Escalation. Lessee agrees that, except for
provided in 4.1.1 above, the Base Rent shall be increased at the beginning of
every fifth 5th year of the Lease Term beginning on year six (6) of the Lease
Term (each CPI Escalation date shall be referred to as the "Anniversary Date"),
by any increase during the prior year in the consumer price index ("CPP'), which
is the monthly indices for the applicable month published by the Bureau of Labor
Statistics of the United States Department of Labor as the Consumer Price Index
for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100. The CPI
adjustment shall be hereinafter referred to as the "CPI Escalation". The CPI
Escalation shall be capped at Three (3%) Percent each time the CPI Escalation is
made (CPI Escalation shall be at the beginning of every 5th year of the Lease.
Tenn beginning on the first date of year 6 of the Lease Term). At no time will the
Base Rent be greater than 1.03 times the previously adjusted Base Rent.
The CPI Escalation of the Base Rent shall be equal to Base Rent in effect
for the immediately preceding Lease Year plus the product of that Base Rent
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multiplied by the "CPI Percentage" (as defined below). The CPI Percentage shall
equal the fraction (i) whose numerator equals the total of (a) the monthly Index
published immediately prior to the anniversary date (or the nearest reported
previous month), minus (b) the monthly Index published immediately prior to the
Anniversary date (or the nearest reported previous month) and (ii) whose
denominator is the same monthly Index as (b) above. If the Index is discontinued
with no successor Index, Lessor shall select a comparable index.
Lessor shall compute the CPI Escalations and send a notice, with
calculations, to Lessee setting forth the adjusted Base Rent within sixty (60) days
of the commencement of Anniversary Date or as soon as such Index is available.
In the event the Base Rent increases, Lessee shall pay to Lessor within thirty (30)
days of receiving such notice, the additional Rent owed for the months, which
have elapsed in the current Lease Year.
4.1.3 Percentage Rent.
Commencing on the Possession Date and continuing throughout the Lease Term,
the Percentage Rent shall be due and payable to the Lessor, Percentage Rent shall be
equal to the combined Gross Revenues of the Lessee and any and all sub-lessee(s) for any
preceding calendar month as follows:
The Percentage Rent shall be an amount equal to the cumulative total of the
following percentages of Gross Revenue:
i) Ten (10%) percent of the Gross Revenues from the restaurant; and
ii) Fifteen (15%) percent of the Gross Revenues from the marina dry rack
storage;
iii) Ten (10%) percent of marina gross fuel profits (which shall be deemed to
be gross fuel revenues less actual fuel costs and taxes);
iv) Five (5%) percent of ancillary marina retail, boat repairs or other
allowable uses.
If there is any underpayment of Percentage Rent, Lessee shall pay the Lessor the
amount of the deficiency within thirty (30)-days of the Lessor receipt of the Percentage
Rent payment. If the Percentage Rent is not paid after thirty (30) days, Lessee shall be
charged a late payment fee in accordance with Section 16.4 until the amount of
underpayment is paid in full.
4.1.4 Gross Revenues_
Gross Revenues shall include the entire amount of all revenues and
percentages of revenues actually collected and received by the Lessee and its Sub-
lessees or its Assignees and derived from the following sales sources, including
without limitation:
(i) all revenue from the commercial business and services conducted
by Lessee and its Sub -lessees and/or Assignees) on or from the
Property or Lease Area;
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(ii) all revenues from sales of food, beverage, wine, beer, merchandise
or services from the Property or Lease Area;
(iii) all revenue derived from advertising and sponsorships conducted
on the Property, including but not limited to, movie, television
commercials, etc.;
(iv) all amounts received from any catering food operations based at
the Property;
(v) all amounts received from valet concession sales or parking valet
services (not reported in (i) above);
(vi) delivery charges;
(vii) sales made or perfoiiiied by means of mechanical or other vending
sales and services devices or machines on the Property or Lease
Area, including without limitation, pay telephones, vending
machines, and entertainment devices both for cash and on credit,
rendered in or upon the Property;
(viii) all revenue received by Lessee in connection with the special
events uses of the Property, any facility thereon, or any portion
thereof for any period of time, including without limitation,
banquets, parties, receptions held on or initiated from the Property;
(ix) internet or telephone food/beverage orders received or filled at the
Property, or procured from the Property by house -to -house or other
canvassing, all deposits not refunded to purchasers, and orders
taken, although said orders may be filled elsewhere, including
proceeds of all video games;
(x) all grants, subsidies, rebates, credits or similar benefits received
from any federal, state, regional or local body, agency, authority,
department or organization which revenues are unrestricted or are
to be used for general operating expenses;
(xi) all donations and contributions received, the revenues of which are
unrestricted orare to be used for general operating expenses; and
(xii) and all other receipts whatsoever derived from other commercial
operations conducted in or from the Property or Lease Area by the
Lessee and its Sub -lessees (if any).
Gross Revenues shall not include the following:
i) direct or indirect discounts or other reductions on sales to
employees, Police Officers, Fire Fighters, Members of the Armed
Forces, in the sole discretion of the Lessee. Notwithstanding the
aforementioned exclusion, the Lessee shall only be permitted to
exclude any discounts to the aforementioned parties up to ten
(10%) percent of Gross Sales in any given year;
ii) any sums collected and paid out by Lessee for any sales, use or
excise tax imposed by any federal, state or governmental authority
directly on sales and collected from customers and accounted for
by Lessee and/or Sub -lessees, provided that the amount is added to
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the selling price therein and paid by the Lessee to such
governmental authority;
iii) the exchange of merchandise between the stores of Lessee, a party
controlled by Lessee, or Sub -lessees, if any, where such exchange
of goods or merchandise is made solely for the convenient
operation of the business of Lessee and not for the purpose of
consummating a sale which has theretofore been made in or from
the Property and/or for the purpose of depriving Lessor of the
benefit of a sale which otherwise would be made in or from the
Property;
iv) the amount of returns to shippers or manufacturers;
v) proceeds from the sale of trade fixtures, operating equipment or
similar assets after use thereof in the conduct of Lessee's and Sub-
lessees' business on the Property;
vi) the sales price, if Lessee sells part or all of the entire business;
vii) all sums and credits received in settlement of claims for loss or
damage to merchandise;
viii) funds collected with regard to the Property which are not actually
related to the day-to-day business of the Property such as, but not
limited to the financing of the Lessee's interest in the Property;
ix) sale or Assignment of Leasehold Estate;
x) collection of insurance proceeds;
xi) collection of eminent domain proceeds;
xii) monies collected for events that are done for charities wherein the
total amounts collected are paid to the charitable sponsor or not -
for -profit organizations;
xiii) all gratuities paid to employees;
xiv) amounts received by Lessee as reimbursements of expenses and
cost sharing (for example, reimbursement of taxes, insurance or
utility bills);
xv) any grants, subsidies, rebates, credits or similar benefits received
by Lessee or Sub -lessee from any federal, state, regional or local
body, agency, authority, department or organization;
xvi) interest earned on Lessee's deposit accounts, earnings or profits on
Lessee's investments;
xvii) interest income from loans or credit facilities granted by Lessee
and similar passive or investment income of Lessee related to
Lessee's liquid assets, investments or loans/credit facilities granted
by Lessee;
xviii) rents or percentage rents and commissions paid to Lessee by any
Sub -lessees where the Lessor is collecting rent based on a
percentage of Sub -lessee's Gross Revenues as provided in Section
10.1.
xix) Amounts received by a valet parking concessionaire when Lessee
is remitting the respective percentage due to Lessor as provided
above.
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xx) Any restricted donations or contributions whose revenues are
earmarked for capital expenditures, as approved by the Lessor, to
the Property.
If a sale is by credit card no deduction shall be allowed for any commission
associated with such sale. A "sale" shall be deemed to have been consummated for the
purpose of this Lease, and the entire amount of sales price collected by Lessee and Sub-
lessees, shall be included in Gross Revenues, at such time that (i) the transaction is
initially reflected in the books or records of Lessee or Sub-lessee(s); or (ii) Lessee or
Sub-lessee(s) receives all or any portion of the sales price; or (iii) the applicable goods or
services are delivered to the customer and payment is made to Lessee or Sub-lessee(s),
whichever first occurs, irrespective of whether payment is made in installments, the sale
is for cash or for credit, or otherwise, or all or any portion of the sale price has actually
been paid at the time of inclusion in Gross Revenues or at any other time.
No deduction shall be allowed for direct or indirect discounts, rebates, or other
reductions on sales, unless generally offered to employees or the public on a uniform
basis. Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be
recognized in the period the service was provided or sale took place. Payments received
in advance are deferred and are recognized as revenue in the period the service is
rendered or sale takes place. Grants shall be recorded as income during the period
designated by the grants or when the Lessee has incurred expenditures in compliance
with the restrictions of the grantor. If a sale is by credit card, no deduction shall be
allowed for any commission associated with such sale. Gross Revenues shall be reduced
by the amount of any refund made upon any sale in or from the Property, provided said
amounts had been previously included in "Gross Revenues," not to exceed the sum so
previously included, where the merchandise sold is thereafter returned by the purchaser
and accepted by the Lessee or Sub -lessees, and if such refund is in the founn of a credit to
customer, such credit shall be included in Gross Revenues when used.
4.1.5 Sales Tax.
The Lessee shall be liable for the prevailing State of Florida Use Tax imposed on
the amount of rent paid to Lessor under this Agreement, in the absence of an exemption
or other reduction by the State of Florida. This Sales and Use Tax shall be payable to the
Lessor when rent is due, and in turn, Lessor will remit the same, less any authorized
handling deductions, if any, to the State. Said tax is applicable to the monthly Base Rent
payments, unless otherwise determined by the State of Florida.
4.1.6 Manner ofPayment.
Every 15th day of the calendar month, Lessee shall pay the Lessor the monthly
Base Rent and the difference between the Base Rent and Percentage Rent, as applicable,
along with the corresponding Gross Revenue Report for the preceding calendar month to
the City of Miami, Department of Finance at the address noted below:
City of Miami
Department of Finance
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Attention: Treasury Management/Receipts
444 SW 2nd Avenue, 6th Floor
Miami, Florida 33130
Lessee shall use a Gross Revenue Report, a sample of which is attached herewith
and incorporated herein as Exhibit "C" to itemize any and all reportable Gross Revenues
as described in Section 1.1.15 herein.
Section 4.2 Security Deposit.
Simultaneously with the execution of this Lease on the Effective Date, Lessee
shall deposit with the Lessor, the. sum of One Hundred Thousand Dollars and Zero Cents
($100,000.00) ("Security Deposit") in the form of cash or its equivalent which funds may
be commingled by Lessor with its other funds. No interest shall be paid on the Security
Deposit. For so long as the Security Deposit has not been repaid by Lessor, it shall
constitute an account payable by Lessor to Lessee within thirty (30) days following
termination of this Lease to the extent, if any, that the Security Deposit has . not been
applied by Lessor as hereunder provided.
If Lessee shall default with respect to any covenant duty, or obligation of Lessee
under this Lease, then the Security Deposit or any part thereof may be applied by Lessor
(but Lessor shall not be obligated to do so) to the damages sustained by Lessor by reason
of any such default or to indebtedness owing by reason of any failure of Lessee to make
any required monetary payment under this Lease. No such application shall be construed
as an agreement to limit the amount of Lessor's claim or as a waiver of any damage or
release of any indebtedness, and any claims of Lessor under this Lease not recovered in
full from the Security Deposit shall remain in full force and effect. At any time or times
when Lessor has made any such application of all or any part of the Security Deposit,
Lessor shall have the right (but not the obligation) at any time thereafter to request in
writing that Lessee pay to Lessor a sum or sums equal to the amounts so applied by
Lessor so that Lessor will always be in possession of a sum equal to the amount of the
Security Deposit stated above. Lessee shall make each such requested remittance within
ten (10) days following such request from Lessor and each such remittance received by
Lessor shall thereupon constitute a part of the Security Deposit subject to the terms and
provisions thereof. Failure to make any such requested remittance within such ten (10)
day period may be treated by Lessor as a failure by Lessee to make timely payment of
rent and as an Event of Default. In the event of any conveyance or other transfer of the
Property by the Lessor, Lessor's remittance of the Security Deposit or any remaining
portion thereof to the purchaser of the Property shall release and relieve Lessor of any
further obligation or liability to Lessee with respect to the Security Deposit.
4.3 Submerged Land Fees.
In addition to the rent described in Sections 4.1.1 to 4.1.2 herein, commencing
upon the later of the Effective Date of this Agreement or the effective date of an
agreement with the DEP for use of the Submerged Lands area, Lessee shall be obligated
to pay all Submerged Land Fees as determined by the DEP for the use of the Submerged
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Lands Area of the Property and pay for all expenses incurred in obtaining the State's
approval and waiver The Annual Submerged Lands Fee shall be paid to the City at the
same location as the Use Fee and the City shall remit payment to DEP. Lessee shall remit
the annual Submerged Lands Fees to the City within five (5) Business Days of being
billed by the City for the same. Lessee shall further be obligated to submit to the Lessor
for remittance to DEP any and all documents required by DEP which may include, but is
not limited to, disclosure of any income from wet slips for the Submerged Lands.
Except as otherwise provided, the annual Submerged Lands fee shall be the
greater of the state base fee, the minimum annual fee or six. percent of the annual rental
value from any wet slip rental area and shall include discounts, surcharges and other
payments as provided in Florida Department of Environmental Protection, Administrative
Rule 18-21.011(1)(b), as may be amended. The minimum annual fee and base feeshall
be established and defined by DEP Administrative Rule 18-21.011(1)(b). These fees
shall be subject to yearly consumer price index (CPI) increases by DEP.
Section 4.4 Lessee's Records.
Lessee shall prepare and keep full, complete and proper books and source
documents in accordance with generally accepted accounting principles, of the Gross
Revenues, whether for cash, credit or otherwise, of each separate department at any time
operated in the Property. The books and source documents to be kept by Lessee shall
include, without limitation, true copies of all federal, state and local tax returns and
reports, records of inventories and receipts of merchandise, daily receipts from all sales
and other pertinent original sales records and records of any other transactions conducted
in or from the Property by Lessee.
Pertinent original sales records shall include, without limitation: (i) sales reports
of back office systems fed from point of sale terminals, (ii) cash register tapes, including
tapes from temporary registers, if any, (iii) serially pre -numbered sales slips, (iv) the
original records of all mail, interne and telephone orders at and to the Property, if any,
(v) settlement report sheets of transactions with any person conducting business in the
Premise, if any, (vi) original records indicating that merchandise returned by customers
was purchased at the Property by such customers, (vii) memorandum receipts or other
records of merchandise taken out on approval, (viii) detailed original records of any
exclusions or deductions from Gross Revenues, (ix) sales tax records, and (x) such other
sales records, if any, which would normally be examined by an independent accountant
pursuant to accepted auditing standards in performing an audit of Lessee's sales.
Lessee shall record, at the time of each sale or other transaction, in the presence of
the customer, all receipts from, such sale or other transaction, whether for cash, credit or
otherwise, in a cash register or cash registers having a cumulative total which shall be
sealed in a manner approved by Lessor and which shall possess such other features as
shall be required by Lessor. Lessee shall be required to install point of sale terminals,
pollable, point of sales cash register systems or such other point of sale equipment of a
make and model mutually agreed, to by the Parties.
Section 4.5 Reports by Lessee.
Within ninety (90) days after the end of each Lease Year, Lessee shall also
furnish to Lessor a financial report by an independent certified public accountant (the
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"Annual Report"), showing in all reasonable detail of the amount of such Gross Revenues
made by Lessee from the Property during the preceding Lease Year. Lessee shall in all
events furnish to Lessor within fifteen (15) days after the end of each month of the Lease
Term a written statement of Gross Revenues covering the preceding month, the statement
to be in such form and style and contain such details and breakdown as Lessor may
reasonably require. Any intentional misstatement of Gross Revenues will constitute a
default under this Lease.
Section 4.6 Right to Examine Books.
Notwithstanding the acceptance by Lessor of payments of Base Rent and
Percentage Rent, Lessor shall have the right to all Rents and other charges actually due
hereunder, and the right to examine, make extracts from and copy, at the Property or
Lessee's main accounting office, Lessee's books, source documents, accounts, records
and sales tax reports filed with applicable government agencies by Lessee in order to
verify the amount of Gross Revenues in and from the Property. For a period of three (3)
years after the expiration of each Lease Year, Lessee shall make all such documents and
records available at the Property or Lessee's main accounting office upon ten (10) days
prior written notice from Lessor.
Section 4.7 Audit.
(a) At its option, Lessor may at any time, upon ten (10) days, prior written
notice to Lessee, arrange for an auditor selected by Lessor to conduct a complete audit
(including a physical inventory) of the entire records and operations of Lessee and Sub-
lessee included in Gross Revenues from the Property during the period covered by any
statement issued by Lessee. Lessee shall make available to the Lessor's auditor at the
Property or Lessee's main accounting office on the day set forth in Lessor's notice,
requiring such audit, all of the books, source documents, accounts and records referred to
in Section 4.7 hereof and any other materials which such auditor deems necessary or
desirable for the purpose of making such audit. Lessee shall promptly pay to Lessor the
amount of any deficiency in Percentage Rent payments disclosed by any such audit. If
such audit shall disclose that Lessee's statement of Gross Revenues is at variance to the
extent of five percent (5%) or more; Lessor may bill to Lessee the cost of such audit,
which shall be paid by Lessee within thirty (30) days after Lessee's receipt of Lessor's
invoice. If such audit shall disclose that Lessee's statement of Gross Revenues is at
variance to the extent of ten percent (10%) or more, then Lessor, in addition to the
foregoing remedy and other remedies available to Lessor, shall have the option, upon
Lessee's failure to pay such additional sums within thirty (30) days after written notice to
the Lessee, to declare this Lease terminated and the Lease Term ended, in which event
this Lease shall cease and teuinate on the date specified in such notice with the same
force and effect as though the date set forth in such notice were the date originally set
forth herein and fixed for the expiration of the Lease Term, and Lessee shall vacate and
surrender the Property but shall remain liable for all obligations arising during the
balance of the original stated term as provided in this Lease. If such audit shall disclose
an overpayment, Lessor shall credit such overpayment towards the next payment of Base
Rent due. In addition to the foregoing, and in addition to all other remedies available to
Lessor, in the event Lessee's auditor and Lessor's auditor shall schedule a date for an
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audit of Lessee's records in accordance with this Section 4.8, and Lessee shall fail to be
available or shall otherwise fail to comply with the requirements for such audit, Lessee
shall pay all costs and expenses associated with the canceled audit. Prior to the
conclusion of any audit, preliminary findings will be provided to the Lessee before being
released to the Public. Upon receipt of said Audit results, the Lessee shall have the right,
in the Lessee's sole and absolute discretion and at the sole cost of the Lessee, to object to
the Audit results and cause for an independent third party Auditor to review the Audit
Results. Any objection by the Lessee to the Audit must be made within Thirty (30) days
from the date Lessee receives the Audit from the Lessor. The City Manager shall resolve
any audit result disputes in his/her sole discretion,
(b) In addition to all other remedies available to Lessor, in the event that any
such audit shall disclose that Lessee's records and other documents as referred to in
Section 4.4, 4.5 and 4.6 hereof and such other materials provided by Lessee to Lessor's
auditor are inadequate, in the opinion of an independent CPA serving as Lessor's auditor,
to disclose accurately Lessee's Gross Revenues, then Lessee shall have thirty (30) days to
cure any reasonably deficiencies raised by Lessor's auditor and shall then notify Lessor
so that Lessor's auditor can continue its audit. If the audit findings show a greater than
two percent (2%) or greater variance, said audit costs will be charged to the Proposer.
Lessor's exercise of the foregoing remedy shall in no way limit or otherwise affect
Lessor's ability to exercise other remedies available to it, nor shall Lessee's obligations
pursuant to the terms, covenants and conditions of this Lease (including, without
limitation, Lessee's obligation with respect to reporting Gross Revenues and payment of
Percentage Rent) be in any manner reduced or diminished by the exercise of such
remedy.
Section 4.8 Lien for Rent.
The whole amount of the Rent, Additional Rent, and each and every installment,
and the amount of all taxes, assessments, water rates, insurance premiums and other
charges and Impositions paid by the Lessee under the provisions of this Lease, and all
costs, attorneys . fees and other expenses which may be incurred by the Lessor in
enforcing the provisions of this Lease, or on account of any delinquency of the Lessee in
carrying out any of the provisions of this Lease, shall be and they are deemed to
constitute a valid lien upon the Leasehold Improvements, and upon the Lessee's
Leasehold Estate.
ARTICLE V
PAYMENT OF TAXES, ASSESSMENTS
AND OTHER IMPOSITIONS
Section 5.1 Payment of Taxes and Impositions
Lessee shall pay before any fine, penalty, interest or costs is added for non-
payment, any and all Impositions levied against the Property or against personal property
of any kind, owned by or placed in, upon or about the Property by Lessee.
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The Lessee
any Imposition is
appropriate taxing
evidencing the paym
Section 5.2 Installment Payments of Ad Valorem Taxes and Impositions
Lessee agrees that to the extent the Property or any interest thereon is
subject to ad valorem taxation, Lessee, at its option, may enroll in the Miami -Dade
County Ad Valorem Tax Payment Plan.
If by law, any taxes, assessments or other Impositions are payable or may,
in the case of taxes, at the option of the taxpayer, be paid in installments (whether or not
interest shall accrue on the unpaid balance of the Imposition), the Lessee may pay the
same (and any accrued interest on the unpaid balance of the Imposition), in installments
before any fine, penalty, interest or cost is added for the nonpayment of any installment
and interest. Any Imposition relating to a fiscal period of the taxing authority, a part of
which period is included before the Effective Date and part of which is included after the
Effective Date shall be adjusted as between the Lessor and the Lessee as of the
commencement of the Lease Term, so that the Lessee shall pay that portion of the
Imposition attributable to that part of the fiscal period included in the Lease Tenn, and
the Lessor shall pay the remainder, if applicable. Any Imposition relating to a fiscal
period of the taxing authority, a part of which period is included within the Lease Term
and a part of which is included in a period of time after Lease Teini shall be adjusted as
between the Lessor and the Lessee as of the termination of the Lease Term, so that the
Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal
period included in the teini of this Lease, and the Lessor shall pay the remainder, if
applicable.
Section 5.3 City of Miami Employee Requirement.
The Lessee shall take anv and all reasonable steps to ensure that at all times no
less than Sixty Five Percent (65%) of the employees employed by Lessee to work on the
Property are residents of the City of Miami.
Section 5.4 Proof of Payment.
shall furnish to Lessor, within thirty (30) days after the date whenever
payable by or in behalf of the Lessee, official receipts of the
authority, photocopies or other proof satisfactory to the Lessor,
ent.
Section 5.5 Lessee's Right to Contest Impositions Anything herein to the
contrary notwithstanding, Lessee shall have and retain the right to appeal or contest by
legal proceedings, or in such other manner as it may deem suitable, any Imposition,
(including but not limited to any Assessments and ad valorem taxes on the Property and
the Leasehold Improvements), or any valuation in connection therewith, without the
consent of Lessor, even if the same ultimately results in the payment of any interest, costs
or penalties. In the event that Lessee contests any Imposition, Lessee shall immediately
notify the City Manager or his/her authorized designee of its intention to appeal said
Imposition.
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If at any time during the last Three (3) years of the initial Lease Term or Renewal
Term, Lessee shall contest an Imposition, Lessee may defer payment of a contested item
upon the condition that, before instituting any such proceedings, Lessee shall furnish and
keep in effect a surety bond, cash deposit or other security satisfactory to the City
Manager or his/her designee in an amount sufficient to pay one hundred percent (100%)
of the contested Imposition or Assessment, with all interest on it and costs and expenses,
including reasonable attorneys' fees to be incurred in connection with it. The legal
proceedings herein referred to shall include appropriate proceedings to review tax
assessments and appeals from an order issued therein and appeals from any judgments,
decrees or orders. Any such contest shall delay the time periods set forth in Section 5.2
above.
Lessor agrees to pay such Impositions in a lump sum payment or on an
installment basis. Failure of the Lessee to pay such Impositions or Assessments or any
installment payment thereof shall constitute a default under this Agreement.
ARTICLE VI
LEASEHOLD IMPROVEMENTS
Section 6.1 Lessee's Obliczation to Provide and Fund Leasehold Improvements.
Within One Hundred and Eighty Days (180) days of the Effective Date, Lessee, at
its own cost and expense, shall submit to Lessor its plans for the commencement and
completion of the construction, and the acquisition and installation of the Leasehold
Improvements. The plans shall include: a layout of the Property, a lighting plan, a
depiction of all fixtures to be added to Property, interior and exterior finishes and
material samples, typical display technique, interior and exterior signage plan,
landscaping plans, store front and any work or equipment to be done or installed by
Lessee affecting any structural, mechanical or electrical part of the Property (the "Plans").
Within ten (10) Business Days of receipt of the Plans, the Lessor shall give Lessee
written notice of either, Lessor's approval or Lessor's disapproval setting forth the reasons
therefore. In the event that Lessor disapproves the Plans, the Lessee shall within ten (10)
Business Days of receipt of the notice modify the Plans in accordance with the reasons
set forth in Lessor's disapproval notice. The modified Plans shall be resubmitted to
Lessor for Lessor's final review and approval. Notwithstanding the above, the Lessee
shall cause for the Dry Rack Storage Slips to be installed within one hundred and eighty
days, or earlier if removed by current Licensee, from the date that the Lessor provides
notice to the current Licensee of the Property of the Lessors demand that the current
leasehold improvements be removed from the Property
Lessee, at its sole cost and expense, shall complete construction, acquisition and
installation of the initial Leasehold Improvements as more fully described in Exhibit "A"
attached hereto and made a part hereof, and acquire and install the furnishings, fixtures
and equipment required for operation of the Property within Three Hundred and Sixty
Five (365) days from the receipt of all required permits for construction of the approved
plans (except for the Dry Rack Storage Slips which shall be installed within 180 days as
provided above). Lessee hereby covenants .that Lessee shall expend approximately Five
Million, Five Hundred Thousand Dollars ($5,500,000.00) to complete all capital
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Leasehold Improvements.. Upon completion of the construction, acquisition and
installation of the Leasehold Improvements, and acquisition and installation of the
furnishings, fixtures and equipment, Lessee shall furnish to Lessor copies of all receipts,
releases and bill of sales in connection therewith.
Section 6.2 Payment and Performance Bond.
Within ten (10) days after the Lessor approves the plans for commencement and
completion of the construction, and the acquisition and installation of the permanent
Leasehold Improvements by the Lessee (as described in Exhibit "A" attached), but in any
event prior to the commencement of any construction, the Lessee shall, at Lessee's sole
cost and expense, furnish the Lessor with a Payment and Perfoiiiiance Bond.
The Payment and Performance Bond shall be issued by a bonding company which
shall be approved by Lessor, in an amount equal to one hundred percent (100%) of the
costs to construct the Leasehold Improvements plus professional design fees related to
the preparation of the construction documents for the Leasehold Improvements described
in Exhibit "E" naming the Lessor as . the owner/obligee, and the Lessee or Lessee's
general contractor, as the principal, guaranteeing the payment and performance of
Lessee's obligations with respect to any and all construction work pertaining to the
Leasehold Improvements, free of construction or other liens. The conditions of the
Payment and Performance Bond shall be to insure that the Lessee or Lessee's general
contractor will:
(i) promptly make payment to all claimants, as defined in §255.05
Florida Statutes 2012, as amended, supplying the Lessee with labor, materials, or
supplies, used directly or indirectly by the Lessee in the prosecution of the work related
to the Leasehold Improvements under this Lease; and
(ii) to pay the Lessor all losses, damages, expenses, costs, and
attorneys fees, including appellate proceedings, that the Lessor sustains because of a
default by the Lessee under this Lease pursuant to claims made under §255.05, Florida
Statutes 2012, as amended; and
(iii) perform the guarantee of all obligations of the Lessee's under this
Lease with respect to the construction, and the acquisition and installation of the
Leasehold Improvements, as described in Exhibit '`A".
The Payment and Performance Bond may be terminated at such time as the
construction, and the acquisition and installation of the Leasehold Improvements are
completed as evidenced by issuance of a Certificate of Occupancy and reasonably
satisfactory evidence thereof is provided by the Lessee to the City Manager, including
certification by the Lessee's architect that all requirements of the Payment and
Perfoumance Bond have been satisfactorily concluded, and by the issuance of a certificate
of occupancy. The form of the Payment and Performance Bond, a sample of which is
attached herewith by reference as Exhibit "E," shall be approved by the City Manager,
which approval shall not be unreasonably be withheld.
The Lessor agrees that in the event the Lessee cannot obtain the above Payment
and Perfoiniance Bond, the Payment and Performance Bond may be provided by the
General Contractor(s) (in an amount acceptable to the Lessor with respect to the work to
be perfouiied by the General Contractor(s), together with such Payment and Performance
Bonds of the subcontractors as shall be required by the Lessor, in lieu of the Lessee
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providing the same as Principal of the project. Said Payment and Performance Bond(s)
shall comply with all the requirements listed under in subsections (i) through (iii) above.
The Lessee shall have the option of posting the Performance Bond or electing to
utilize the Five Million Five Hundred Thousand Dollars ($5,500,000) currently in Escrow
("Escrowed Funds ") to pay for all Leasehold Improvements to the Property as required
by this Lease. In the event the Lessee elects to allocate the Escrowed Funds, the
Escrowed Funds shall be held pursuant to and escrow agreement between the Lessee and
the Escrow Agent, which Escrow Agreement shall specifically provided that all such
Escrowed Funds, must be used to ensure that all Leasehold Improvements are paid from
the Escrowed Funds in accordance with the construction budget which will become an
Exhibit to the Escrow Agreement.
Section 6.3 Contractor's Insurance.
The Lessee shall require every contractor perfouniing any work pertaining to the
Leasehold Improvements to furnish certificates of insurance including Builder's Risk
Insurance, if applicable, to the satisfaction of the City protecting the Lessor and its
respective commissioners, officers, agents, and employees, against any claim for personal
injuries, death and property damage that may be asserted because of the construction, or
the acquisition or installation of the Leasehold Improvements.
Section 6.4 Additional Consideration.
(a) The Lessor hereby, in consideration for the promises and covenants
contained in this Lease to be kept and perfoumed by the Lessee, shall simultaneously with
the execution of this Lease on the Effective Date grant and convey unto the Lessee all
furnishings, fixtures and equipment listed in Exhibit "G", in its "as is" and "where is"
condition.
(b) The Lessee hereby, in consideration of the granting of this Lease shall
upon termination or expiration of this Lease:
(i) grant and convey unto the Lessor, free and clear of all liens, title to
all Leasehold Improvements of a permanent character including but not limited to, dry
racks, refrigerators, stoves, freezers, hood systems, grills, dishwashers, sinks, kitchen
work stations and light fixtures, and
(ii) In addition to the Leasehold Improvements to be conveyed to
Lessor as referenced above, Lessee shall further grant to the Lessor the right to purchase
from the Lessee, all of Lessee's personal property added to or installed at the Property by
the Lessee during the Lease Term, including all furnishings, and equipment at actual cost
less actual "observed" depreciation as determined by an appraisal, provided that the
Lessor by notice in writing to the Lessee of at least forty five (45) days prior to the
expiration, or earlier termination of the Lease Term, notifies the Lessee of its election.
Section 6.5 Lessor's Property to Remain Free of Liens.
The Lessee shall make, or cause to be made, prompt payment of all money due
and legally owing to all persons doing any work, including subcontractors, or providing
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supplies and equipment in connection with the construction, reconstruction or operation
of the Property. The Lessee shall have no power or right to and shall not in any way
encumber the Lessor's fee simple interest in the Property. If any lien shall at any time be
filed against the Property, the Lessee shall promptly take and diligently pursue a cause of
action to have the same discharged or to contest in good faith the amount or validity
thereof and if unsuccessful in such contest, to have the same discharged. Upon the
Lessee's failure to do so, the Lessor, in addition to any other right or remedy that it may
have, may take such action as may be reasonably necessary to protect its interest, and the
Lessee shall be responsible for any and all costs incurred by the Lessor in connection
with such action, including all reasonable legal fees, costs and expenses.
Section 6.6 Lessor Approval.
All Plans furnished under this Lease are expressly subject to Lessor's written
approval, which the City Manager is hereby authorized to act on behalf of for purposes of
such approval, and which approval he or she may not unreasonably withhold or delay.
No approval by the City Manager of any Plans furnished under this Lease
pursuant to this Section shall relieve Lessee of any obligation it may have at law to file
such Plans with any department of the City or any other governmental authority having
jurisdiction over the issues; or to obtain any building or other permit or approval required
by law. Lessee acknowledges that any approval given by the City Manager pursuant to
this Section shall not constitute an opinion or agreement by the City that the Plans are
structurally sufficient or in compliance with any laws, codes or other applicable
regulations.
ARTICLE VII
CONDUCT OF BUSINESS BY LESSEE
Section 7.1 Use of Property.
The Lessee shall occupy the Property and commence operations on the Effective
Date or as soon after the Effective Date as commercially reasonable. If however, after
the referendum concerning the subject Property is approved, and if the current Licensee
vacates the Property or abandons the operations, Lessee shall occupy the Property and
commence operations as soon after said vacation or abandonment as is commercially
reasonable.
Upon completion of the Leasehold Improvements as provided in Section 6.1
hereof, Lessee shall occupy the Property without delay, and covenants to continuously
conduct its permitted business therein throughout the Lease Term. Lessee shall use the
Property solely for marina and restaurant operations. Lessee shall not use, pein it or
suffer the use of the Property for any other business or purpose. Lessee agrees to conduct
its business upon the Property in accordance with the highest ethical and operating
standards of the marina and restaurant industry of which Lessee forms a part.
Section 7.2 Operation of Lessee's Business.
At all times during the Lease Term, Lessee shall manage the marina and
restaurant operations at the Property with due diligence and efficiency, in Lessee's sole
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and absolute discretion, and in a manner prudent and in accord with the current business
techniques within the locale for Lessee's business so as to maximize the amount of Gross
Revenues, subject to Force Majeure. Lessee shall carry at all times in the Property a
stock of merchandise of such quantity, character and quality as shall be in accord with
advanced and highest quality business practices within the locale for Lessee's business.
Section 7.3 Sims.
Lessee will not place or permit to be placed or maintained on any exterior door,
wall or window of the Property, or within the interior of the Property, any signage or
advertising matter of any kind, without first obtaining Lessor's written approval and
consent, which may not be unreasonably withheld. Lessee shall erect an exterior sign of
type, composition and design in conformance with the Miami 21 Zoning Code. Lessee
further agrees that such signs, awning, canopy, decoration, lettering, advertising matter or
other thing as may be approved shall be maintained in good condition and repair at all
times and shall conform to the criteria established from time to time by Lessor.
ARTICLE VIII
MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY
Section 8.1 Lessee's Maintenance Obligations.
Lessee, at its sole cost and expense, agrees to provide the necessary management
and labor, to continuously maintain the Property, including all operating equipment,
utility services, and connections on the Property. Lessee, at its sole cost and expense,
agrees to provide, janitorial and custodian services, trash and garbage removal services,
and any and all other related services necessary to have the Property, and the Leasehold
Improvements remain in good, safe, sanitary condition and repair throughout the Lease
Teini. Lessee shall be responsible for painting the interior and exterior of the Property
and decorating the interior of the Property, maintaining its equipment, fixtures,
furnishings, and other personal property in good condition and repair. All maintenance
shall be at the Lessee's sole cost and expense and will be subject to general inspection by
the Lessor to insure a continuing quality of maintenance and appearance and physical
condition of the Property commensurate with maintenance, health, and safety standards
established by the Lessor and Applicable Law.
Section 8.2 Lessee's Repair Obligation.
Lessee, at Lessee's sole cost and expense, at all times during the Lease Term,
shall make all interior, exterior, structural repairs, including repairs to the roof, wires,
pipes, conduits and other equipment or facilities for supplying heat, light, power, hot and
cold water services, all drainage and waste pipes or facilities leading from the Property,
and to all heating, ventilating and air-conditioning equipment and any other repair or
replacement to the Property and to the Leasehold Improvements.
Section 8.3 Preventative Maintenance and Services.
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Lessee shall, at its sole cost and expense, provide the following preventive
maintenance and services:
a. Cleaning and janitorial services for the Property;
b. Grounds services including lawn, shrub and tree maintenance and removal
of any rubbish or obstructions from the Property;
c. Interior and exterior window cleaning to be performed as needed but no
less than once every one hundred and twenty days;
d. Vermin control as necessary, but no less than once every thirty (30) days;
e. Periodic maintenance and cleaning of kitchen and exhaust equipment, and
grease traps or grease inceptors, if applicable; and
f. Painting of interior and exterior of building including caulking of all
windows and door frames painting of signs, if applicable, and restriping of
parking spaces on Property as necessary, but no less than once every four
(4) years.
In addition to the above, commencing on the fourth year of the Effective Date,
and once every two years thereafter, the Lessee, at.its sole cost and expense shall have a
qualified engineer perform a physical inspection of the Property including, but not
limited to all structural components, plumbing, life safety, electrical, heating and air
conditioning systems and mechanical equipment as well as any and all structural trade
fixtures on the Property, as part of a preventive maintenance program. The Lessee shall
submit the engineer's report along with a proposed plan for the funding and
implementation of the recommendations contained in the engineer's to the Lessor by the
end of the Lease Year in which such report is due for the Lessor's review.
If the Lessee refuses, neglects or fails to provide the services required herein or
does not provide adequate services within thirty (30) days after written demand from the
Lessor, the lessor may take corrective measures or cause the Property to be cleaned or
repaired without waiving its right based upon any default of the Lessee and without
releasing the Lessee from any obligations hereunder. The Lessee shall pay the Lessor the
full cost of such work within thirty (30) days of receipt of an invoice indicated the cost of
such corrective measures or cleanup. Failure to pay such invoice shall constitute a
default of this Lease. Notwithstanding the above, the Lessee's failure to perfoiun the
corrective measures or cleanup to the Property as directed shall constitute a default of this
Lease.
Nothing herein shall imply that maintenance, repair and inspections should be
performed by the Lessee only at the suggested intervals. The Lessee shall, at all times, be
responsible for the condition of the property and shall perform repairs required in a
timely manner so as to prevent injury to persons and waste to property.
Section 8.4 Changes/Alterations.
Lessee shall not make any major changes, alterations, including without
limitation, installing or causing to be installed any trade fixtures, , exterior machinery,
floor covering, interior or exterior lighting, plumbing fixtures, shades, in and to the
Property or any part thereof without the prior written consent of the Lessor, which
consent the City Manager is hereby authorized to give, and may not unreasonably
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withhold or delay.
No approval by the City Manager of any changes or alterations shall relieve
Lessee of any obligation it may have at law to file the required documents with any
department of the City or any other governmental authority having jurisdiction over the
issues; or to obtain any building or other permit or approval required by law. Lessee
acknowledges that any approval given by the City Manager pursuant to this Section shall
not constitute an opinion or agreement by the City that the changes or alterations are in
compliance with any laws, codes or other applicable regulations.
ARTICLE IX
INSURANCE AND INDEMNITY
Section 9.1 Insurance on the Property.
In connection herewith, Lessee shall obtain and maintain or cause to be obtained
and maintained in full force and effect throughout the period of this Agreement, the types
and amounts of insurance coverage set forth in Exhibit "F" attached hereto and
incorporated herein by reference. If required by state, county, or city laws from time to
time for work conducted on or use of municipal properties, Lessee shall obtain and
maintain or" cause to the obtained and maintained throughout or during the term of this
Agreement, as applicable, such types and amounts of payment, performance,
maintenance, or restoration bond(s) as shall be required to be reviewed and approved by
the City's Risk Management Department in coordination with . Lessee's Risk
Management or other appropriate Department.
The Lessor reserves the right to reasonably amend the herein insurance
requirements by the issuance of a notice in writing to the Lessee, which amended
insurance requirements shall be subject to the reasonable approval by Lessee, which
approval shall not be unreasonably withheld.
Section 9.2 Delivery of Insurance Policies.
All public liability, workers compensation and employer's liability policies shall
be retained by the Lessee. Except as otherwise specifically provided, all other policies of
insurance required to be furnished shall be held by and be payable jointly to the Lessor
and the Lessee with the proceeds to be distributed in accordance with the terms of this
Lease. Insurance company certificates evidencing the existence of all of these policies of
insurance shall be delivered to the Lessor. 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 the Lessor and all insured and beneficiaries of
the policies shall contain waiver of subrogation rights endorsements, as required below.
The Lessor shall have no obligation to pay premiums or make contributions to the
insuring company or any other person or satisfy any deductible. On or before the
Effective Date and not less than thirty (30) days prior to the expiration date of any policy
required to be carried pursuant to this Section, the Lessee shall deliver to the Lessor the
applicable respective policies and insurance company certificates evidencing all policies
of insurance and renewals required to be furnished. Receipt of any documentation of
insurance by the Lessor or by any of its representatives which indicates less coverage
than required does not constitute a waiver of the Lessee's obligation to fulfill the
insurance requirements herein.
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Section 9.3 Adjustment of Loss.
Subject to the requirements of any Net Insurance Proceeds recovered on account
of any damage or destruction by any casualty shall be made available for the payment of
the cost of the reconstruction, replacement or repairs. All of the Net Insurance Proceeds
plus the amount of any deductible applicable to said damage or destruction shall be
deposited by the insurance company or by the Lessee (in the case of the deductible) with
an escrow agent acceptable to the City Manager, with instructions to the escrow holder
that the escrow holder shall disburse the funds to the Lessee, with notice thereof to the
Lessor, as the work of the reconstruction, replacement or repairs progresses upon
certificates of the architect or engineer supervising the work that the disbursements then
requested, plus all previous disbursements made from such Net Insurance Proceeds, plus
the amount of any deductible, do not exceed the cost of the work already completed and
paid for, and that the balance in the escrow fund is sufficient to pay for the reasonably
estimated cost of completing the required work. The escrow holder shall be any bank
mutually agreeable to Lessor and Lessee. If the amount of the Net Insurance Proceeds is
less than the cost of the required work, then Lessee shall pay the excess cost; and if, the
amount of the Net Insurance Proceeds is greater than the cost of the required work, then
the excess shall be paid to and belong to the Lessee.
Section 9.4 Insurer To Be Approved -Premium Receipts.
All policies of insurance of the character described in Exhibit "F" shall be written
by companies of recognized responsibility reasonably acceptable to the Lessor. On
request by Lessor, Lessee shall provide photocopies of receipts showing the payment of
premium for all insurance policies required to be maintained by this Lease.
Section 9.5 Indemnification of Lessor.
Subject to any acts of Gross Negligence by the Lessor for which the Indemnity
provided for herein shall not apply, Lessee shall indemnify, defend and save Lessor
harmless from and against any and all claims actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or destruction of Property
arising from or out of any occurrence in, upon or at the Property, or the occupancy or use
by Lessee of the Property or any part thereof, or occasioned wholly or in part by any act
of omission of Lessee, its agents, contractors, employees, servants, customers, invitees,
Lessees, Sub -lessees or concessionaires. In case Lessor shall be made a party to any
litigation commenced by or against Lessee covered by this indemnity provision, then
Lessee shall protect and hold Lessor harmless and pay all costs and attorney's fees
incurred by Lessor in connection with such litigation, and any appeals thereof. Lessee
shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or
paid by Lessor in enforcing the covenants and agreements in this Lease.
Section 9.6 Waiver of Subrogation.
Lessee waives all rights to recover against the Lessor for any damages arising
from any cause covered by any insurance required to be carried by Lessee, or any
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insurance actually carried by Lessee. The Lessee shall cause its insurer(s) to . issue
appropriate waiver of subrogation rights endorsements to all policies of insurance carried
in connection with the Property.
Section 9.7 Release of Lessor.
The Lessee for and in consideration of the leasing and the demise of the Property
to the Lessee hereby release, remise and discharge the Lessor, its officers and employees,
of and from all claims, demands, actions, whether in law or in equity which may be filed
or asserted by the Lessee or its Assignees for or on account of improvements made and
furniture, fixtures and equipment installed in the Property, and from any and all costs and
expenses, of Lessee or its Assignees in connection with this Lease, including, but not
limited to the development of the Property and acquisition of the Leasehold
Improvements, which may result from a third party challenging the validity or legality of
this transaction under the City Charter or Code or the laws of the State of Florida, or
arising out of the award of this Lease, or any subsequent Assignment of this Lease by the
Lessee or its Assignees (the "Claim"). It is the intent of the. Parties that this provision
shall control over any other provision in this Lease and that notwithstanding any limited
representations provided by Lessor under Section 2.5 of this Lease, neither the Lessee,
nor its Assignees shall seek to recover from the Lessor compensation for, or
reimbursement of any costs, losses, fees or expenses incurred by the Lessee or its
Assignees, including expenses incurred in connection with the acquisition of this Lease
or the financing, and/or installation of the Leasehold Improvements, or otherwise, as a
result of any adverse judgment which may be entered or relief granted in connection with
the Claim. The terms of this provision shall expressly be made a part of any future
Assignment or mortgage of the Leasehold Interest.
In the event a Claim is filed or asserted within forty (40) days of the Effective
Date, either party shall have the right to terminate this Lease and except as otherwise
hereafter provided in this paragraph, the Parties shall thereupon be relieved of any and all
further responsibility hereunder and neither Party shall have any further obligation under
this Lease. In the event of such teiiuination, Lessor shall return the Security Deposit to
the Lessee, without interest. Lessor shall further prorate the Base Rent due, without a
discount, from the Effective Date to the date of termination and shall refund to the Lessee
the difference between the pre -paid rent and the amount of rent due.
In the event a Claim is filed or asserted after the forty (40) day period has expired,
or in the event the Parties agree not to terminate this Lease as provided above, Lessor
agrees that it will defend against the Claim in good faith and with reasonable diligence.
Lessee agrees that it shall continue to comply with the terms and conditions of this Lease
including the timely performance of all construction obligations under this Lease, and the
Claim shall not constitute an Event of Force Majeure under this Lease.
Notwithstanding anything to the contrary in this Lease, in the event this Lease is
terminated as a result of a Claim within the first two years of the Lease Tetttl, Lessee
shall be permitted to remove such movable trade fixtures installed as part of the initial
Leasehold Improvements so long as same does not damage the Property. Lessee shall not
be permitted to remove any equipment outlined in Exhibit "G" attached hereto and made
a part hereof even if same was reconditioned by Lessee.
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ARTICLE X
SERVICES AND UTILITIES
Section 10.1 Lessee to Provide and Pav for Utilities.
The Lessee shall pay, or cause to be paid, all proper charges for gas, electricity,
light, heat, water and power, for telephone, protective and other communication services,
and for all other public or private utility services, which shall be used, rendered or
supplied upon or in connection with the Property and the Leasehold Improvements, or
any part of it, at any time during the Lease Term, and the Lessee shall comply with all
contracts relating to any such services and will do all other things required for the
maintenance and continuance of all services as are necessary for the proper maintenance
and operation of the Property and the Leasehold Improvements. The Lessee shall also at
its sole expense procure any and all necessary permits, licenses or other authorization
required for the lawful and proper installation and maintenance upon the Property of
wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any
such utilities, services or substitutes to the Property.
Section 10.2 Lessor Not Liable for Failure of Utilities.
The Lessor shall not be liable for any failure of water supply, sewer, gas or
electric current, or for any injury or damage to any person or the Property caused by or
resulting water, gas or electricity which may leak or flow from the water or gas mains on
to any part of the Property or the Leasehold Improvements. The Lessor shall not be
required to make any alteration to any service or utility system of the Property on behalf
of Lessee. Lessor shall not be liable for temporary failure of services, and same shall not
be deemed to constitute actual or constructive eviction, nor entitle Lessee to any
abatement or diminution in rent payable under this Lease.
ARTICLE XI
TRANSFERS AND SUBLETTING
Section 11.1 Subleasing. and Assignments
(a) Lessee shall not, at any time during the term of this Lease, enter into any
Sublease with respect to the Property or any portion thereof, nor assign this Lease to any
third party or parties other than Lessee, its authorized agents, employees, invitees and
visitors to occupy or use the Property or any portion thereof, without first obtaining the
prior written consent of the City Manager. Any such attempted subleasing of the
Property or Assignment of the Lease, without the Lessor's prior written consent, shall be
void and of no force or effect and .shall not confer any interest or estate in the purported
Sub -lessee or Assignee, and shall constitute a default under this Lease and the Lessor, at
its election, may terminate this Lease. Under no circumstances is Lessee allowed to
Sublease more than twenty-five (25%) of the total square footage of the leased parcel.
The provisions of Subsection 11.1(b) constitute the sole means by which Lessee
may request Lessor's consent to a Sublease. The consent of Lessor shall not be
unreasonably withheld or delayed.
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It is agreed that all terms and conditions of the Request for Proposals issued by
the City of Miami on March 16, 2012 titled "Request for Proposals. (RFP) Lease of City -
owned Waterfront Property for Marina/Outdoor Cafe Use" and this Lease shall extend to
and be binding on all Sub -lessees as may be approved by Lessor and shall be for a period
of time equal to or less than the Lease Term. Lessee shall be liable for acts and omissions
by any Sub -lessee affecting this Lease. Lessor reserves the right to directly terminate the
rights and interests of any Sub -lessee under any sub -lease for any cause for which
Lessee's Leasehold Interest may be terminated.
Lessee shall reimburse to Lessor, as Additional Rent, all costs and expenses,
including attorneys' fees, which Lessor incurs by reason of or in connection with a sub-
lease, and all negotiations and actions with respect thereto, such Additional Rent to be
due and payable within thirty (30) days of receipt of a statement of such costs and
expenses from Lessor.
(b) Procedure for Sub -lease.
Should Lessee desire to enter into a sub -lease, Lessee shall, in each instance, give
written notice of its intention to do so to the City Manager at least thirty (30) days prior to
the effective date of any such proposed sub -lease, specifying in such notice the nature of
such proposed sub -lease and the proposed date thereof and specifically identifying the
proposed Sub -lessee. Such notice shall be accompanied by a copy of the proposed sub-
lease, license, concession or peuniit agreement and any other documents or financial
infouunation Lessor may reasonably require in order to make a determination as to the
suitability of the Sub -lessee. Lessor, Lessee shall provide to Lessor copies of all sub-
leases and amendments thereto Lessor shall, within twenty (20) days after its receipt of
such notice of a proposed sub -lease from Lessee, by mailing written notice to Lessee of
its intent to do so, either (i) withhold consent to the sub -lease, or (ii) consent to such sub-
lease upon the terms and subject to the conditions provided for in this Article. Lessee
acknowledges and agrees that the Imposition of the conditions described in this Article X
as a condition of Lessor's consent is reasonable.
(c) Additional Consideration Payable to Lessor.
Except as provided below with respect to a valet concession, if Lessor gives its
consent to any sub -lease, Lessee shall, in consideration therefore, include in Lessee's
Gross Revenues the amount of Sub -lessee's Gross Revenues which shall be listed
separately on Lessee's Semi -Annual Report. Sub -lessee's records shall be kept in
accordance with Section 4.5. Additionally, Lessor reserves the right to examine Sub -
lessee's books and audit Sub -lessee's entire records in accordance with Sections 4.6 and
4.7 of this Lease.
Lessee shall collect a fee from all valet concessionaires allowed on the Property.
In the event Lessee is able to obtain such a fee, Lessee shall include any and all amounts
Lessee receives from the valet concessionaire in Lessee's Gross Revenues and Lessor
shall receive Percentage Rent from Lessee pursuant to Article IV.
The acceptance by Lessor of the payment of Rent following any sub -lease
prohibited by this Article shall not be deemed to be a consent by Lessor to any such sub-
lease nor shall the same be deemed to be a waiver of any right or remedy of Lessor
hereunder.
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Section 11.2 Definitions.
As used in this Article the term:
(a) "Transfer" means:
(i) any total or partial sale, or Assignment of Lessee's business or
Leasehold Estate or any contract or agreement to do any of the same;
(ii) any transfer of the stock of Lessee if the transfer results in the
beneficial ownership of Alton Road Capital, LLC being less than 51% of the Lessee;
(iii) any merger, consolidation or sale or lease of all or substantially all
of the assets of the Lessee or of any Owner, other than an owner whose shares are
publicly traded.
(b) "Owner" means:
(i) any person, firm, corporation or other entity which owns, directly
or indirectly, legally or beneficially, more than fifteen percent (15%) of the stock of the
Lessee, but shall not include any shareholder of an Owner whose shares are publicly
traded.
(c) "Owner whose shares are publicly traded" means an Owner:
(i) who has filed an effective registration statement with the Securities
& Exchange Commission (or its successor) with respect to the shares of any class of its
voting stock or of all classes of any other form of ownership interest which includes
voting rights; and
(ii) whose voting stock and other form of ownership interest described
in clause (i) is listed for trading purposes on a securities exchange subject to the
regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is
publicly traded over the counter.
Section 11.3 Transfers.
The Lessee recognizes that the operational experience of the Lessee as set forth in
the Proposal was given special consideration by the Lessor in the public selection process
undertaken .by the Lessor for the award of this Lease. Therefore, Lessee agrees that
except as peinntted pursuant to subparagraphs (a), (b) and (c) below, or as specifically
approved pursuant Section 11.7 below, no Transfer may be made, suffered or created by
the Lessee, or any Owner without the prior written consent of the City Manager which
consent shall not be unreasonably withheld or delayed. The City Manager, in his sole
discretion, may, but shall not be obligated to, present any request for Transfer to the City
Commission for its final approval. The following Transfers shall be permitted hereunder:
(a) Any Transfer directly resulting from the foreclosure of Lessee's Leasehold
Estate, provided that such purchaser or grantee is an institutional investor or an agent,
designee or nominee of an institutional investor which is wholly owned or controlled by
an institutional investor, and that such purchaser or grantee within six (6) months after
taking possession of the Property, shall have entered into an agreement for the
management and operation of the Property with an acceptable operator or is itself an
Acceptable Operator;
(b) any Transfer to an acceptable operator consented to by the City Manager;
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(c) the issuance of stock or stock options to Lessee's directors, officers, or
employees, provided the stock or stock options issued constitute, in the aggregate, less
than fifteen percent (15%) of the issued and outstanding stock of Lessee;
The Parties hereby acknowledge and agree that anything herein to the contrary
notwithstanding, the "going public" by Lessee, including, but not limited to, the filing of
a registration statement with the Securities and Exchange Commission, the creation of
one or more classes of stock and the offering of shares of stock to the public for purchase,
shall not constitute a Transfer hereunder and shall not require the consent of the Lessor.
Any consent to a Transfer shall not waive any of the Lessor's rights to consent to
a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null
and void and of no force and effect.
Section 11.4 Notice of Transfer.
With respect to any Transfer which must be approved by the City Manager, the
Lessee shall give or cause to be given to the Lessor written notice (including all
information necessary for the Lessor to make an evaluation of the proposed acceptable
operator according to the requirements of this Lease) of any Transfer of which Lessee,. or
its officers shall have knowledge, not less than thirty (30) days prior to, any such proposed
Transfer, and the Lessor shall within thirty (30) days of its receipt of such information,
advise Lessee in writing if it shall consent to same. If the Lessor shall not consent to a
Transfer, the City Manager shall state the reasons for such disapproval in his notice to
Lessee. If the Lessor is not required to consent to a Transfer pursuant to the terms
hereof, the Lessee shall notify the Lessor in writing of same within thirty (30) days after
the date of Transfer. In the event the City Manager elects to exercise his right under
Section 11.3 to present any request for Transfer to the City Commission for its approval,
the City Manager shall use due diligence to present the request for Transfer to the City
Commission as soon as practicable and the time for performance by Lessor shall be
reasonably extended to provide sufficient time for presentation to the City Commission.
Section 11.5 Information as to Shareholders. etc.
Lessee shall from time to time throughout the Lease Term, as the Lessor shall
reasonably request, furnish the Lessor with a complete statement, subscribed and sworn
to by the President or Vice -President and the Secretary or Assistant Secretary of the
Lessee, setting forth the full names and addresses of holders of stock interests in Lessee,
and the extent of their holdings, and in the event any other parties have a beneficial
interest in such stock, their full names and addresses and the extent of such interest as
determined or indicated by the records of Lessee. Notwithstanding the foregoing, the
information required by this Section 11.5 shall not be required to be furnished with
respect to the shareholders of any Owner whose shares are publicly traded.
Section 11.6 Effectuation of Permitted Transfers.
No Transfer of the nature described in Subsection 11.3(b) above shall be effective
unless and until:
(a) all Rents, taxes, assessments, Impositions, insurance, permitting and other
charges required to be paid by the Lessee under this Lease shall be paid by the Lessee up
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to the date of transfer, and all other covenants and agreements to .be kept and performed
by the Lessee shall be substantially complied with at the date of the Transfer; and
(b) the entity to which such Transfer is made, by instrument in writing
reasonably satisfactory to the City Manager and in a form recordable among the land
records, shall, for itself and its successors and assigns, and especially for the benefit of
the Lessor expressly assume all of the obligations of Lessee under this Lease, and agree
to be subject to all conditions and restrictions to which Lessee is subject; provided,
however, that any transferee shall not be required to assume any personal liability under
this Lease with respect to any matter arising prior or subsequent to the period of such
transferee's actual ownership of the Leasehold Estate created by this Lease (it being
understood, nevertheless, that the absence of any such liability for such matters shall not
impair, impede or prejudice any other right or remedy available to the Lessor for default
by Lessee). Nothing herein shall be construed to relive or release the Lessee from
liability for the performance of all of the obligations of Lessee under this Lease, unless
the Lessor in writing expressly provides for such a release.
Section 11.7 Criteria for Consent for Transfer.
The Lessor may condition its consent to a permitted Transfer upon satisfaction of
all or any of the following conditions:
(i) The net assets of the Transferee immediately prior to the Transfer shall not
be less than: (a) the net assets of the Transferor whose interest is being transferred
immediately prior to the Transfer; (b) the net assets of said Transferor on the Effective
Date adjusted for inflation; or (c) an amount reasonably necessary to discharge Lessee's
remaining obligations hereunder;
(ii) Such Transfer shall not adversely affect the quality and type of business
operation which the Lessee has conducted theretofore;
(iii) Such Transferee, shall possess qualifications for the Lessee's business
substantially equivalent to an acceptable operator, or shall engage an acceptable operator
and shall have demonstrated recognized experience in successfully operating such a
business, including, without limitation, experience in successfully operating a similar
quality business;
(iv) Such Transferee shall continue to operate the business conducted at the
Property pursuant to all the provisions of this Lease;
(v) Such Transferee shall assume in writing, in a form acceptable to Lessor,
all of Lessee's obligations hereunder, and Lessee shall provide Lessor with a copy of all
documents pertaining to such Transfer;
(vi) Lessee shall reimburse the Lessor for all of its internal costs and expenses
incurred with respect to the Transfer, including, without limitation, costs incurred in
connection with the review of financial materials, meetings with representatives of
Transferee, and preparation, review, approval and execution of the required documents;
(vii) Lessee shall pay to the Lessor any due, but unpaid Rent.
Section 11.8 Liability of Lessee.
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If a Transferee does not meet all of the criteria set forth in Section 11.7, Lessor, at
its sole option, may require Lessee or Owner transferring such interest to remain liable
under this Lease for the performance of all terms, including, but not limited to, payment
of Rent due under this Lease.
Section 11.9 Payment Upon Transfer or Sale of Lessee Business or Stock.
Lessee recognizes and agrees that: (i) the experience of Lessee was given special
consideration by Lessor in the selection process which resulted in the award of this
Lease; (ii) the qualifications and identity of Lessee are of particular concern to the
community and Lessor; and (iii) it is partially because of such qualifications and identity
that Lessor is entering into this Lease. Accordingly, at all times prior to the Transfer
Date: (A) the Lessee's Equity Contribution shall be maintained; (B) Lessee shall retain
voting and operational control of Lessee; (C) Lessee shall retain voting and operational
control of each subtenant then in existence; and (D) Lessee shall own more than Fifty
Percent (50%) of the ownership interests in each subtenant then in existence.
Furthermore, at all times prior to the Lessee's Transfer Date, there shall be no Leasehold
Estate Transfer, Lessee Transfer of Control or Sub -leasehold Estate Transfer. Any
waiver of the foregoing requirement shall require the City Manager's prior written
consent, which may be granted or withheld in his or her sole and absolute discretion.
During the initial ten (10) years of the Term, Lessee agrees to pay Lessor an amount
equal to the greater of ten percent (10%) of Net Sale Proceeds, as hereinafter defined, or
six percent (6%) of any and all consideration paid or agreed to be paid, directly or
indirectly, to Lessee in connection with any Transfer, or for the sale of Lessees' business
in connection with any such Transfer, or in connection with the sale or transfer resulting
in the beneficial ownership of Alton Road Capital, LLC being less than 51 % of the
Lessee("Transfer Fee"). After the initial ten (10) years of the Term, the Transfer Fee
shall be equal to the greater of five percent (5%) of Net Sale Proceeds, as hereinafter
defined, or three percent (3%) of any and all consideration paid or agreed to be paid,
directly or indirectly, to Lessee in connection with any Transfer, or for the sale of
Lessees' business in connection with any such Transfer, or in connection with the sale or
transfer resulting in the beneficial ownership of Alton Road Capital, LLC being less than
51% of the Lessee. The Lessee shall pay to the Lessor the Transfer Fee at the time the
Transfer becomes effective, or in the case of the sale of the Lessee's stock at the time the
shares of stock are sold.
Section 11.10 Acceptance of Rent from Transferee.
The acceptance by Lessor of the payment of Rent following any Transfer
prohibited by this Article shall not be deemed to be a consent by Lessor to any such, nor
shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder.
Section 11.11 Transfers of the Citv's Interest.
At the Lessee's request, Lessor shall provide the Lessee copies of any and all
agreements or contracts pertaining to the total or partial sale, Assignment, conveyance,
mortgage, trust or power, or other transfer in any mode or foini of or with respect to the
Lessor's reversionary or fee interest in the Property, or any part thereof, or any interest
therein, or any contract or agreement to do any of the same, to any purchaser, Assignee,
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mortgagee, or trustee. Lessor hereby agrees to incorporate the tents and conditions set
forth in this Lease or in any agreement or contract with such purchaser, Assignee,
mortgagee, or trustee.
ARTICLE XII
COMPLIANCE WITH LAWS
Section 12.1 Compliance With Laws.
Lessee shall, at Lessee's sole cost and expense, comply with all regulations of all
Applicable Laws now in force, or which may hereafter be in force, pertaining to Lessee
or its use of the Property, and shall faithfully observe in the use of the Property or in the
perfoiuiance of any alterations (including, without limitation, Lessee's work) all
Applicable Laws now in force or which may hereafter be in force. Lessee shall
indemnify (and such indemnity will survive the termination or expiration of the Lease for
a period of five (5) years), defend and save Lessor harmless from penalties, fines, costs,
expenses, suits, claims, or damages resulting from Lessee's failure to perform its
obligations in this Section.
ARTICLE XIII
ENVIRONMENTAL LIABILITY
Section 13.1 Definition of Terms. For purposes of this Article XIII the following terms
shall have the meaning attributed to them herein:
13.1.1 "Hazardous Materials" means any toxic or hazardous substance, material,
or waste, and any other contaminant, pollutant or constituent thereof, whether liquid,
solid, semi -solid, sludge and/or gaseous, including without limitation, chemicals,
compounds, pesticides, petroleum products including crude oil and any fraction thereof,
asbestos containing materials or other similar substances or materials which are regulated
or controlled by, under or pursuant to any federal, state or local statutes, laws, ordinances,
codes, rules, regulations, orders or decrees including, but not limited to, all Applicable
Laws.
13.1.2 "Environmental Laws" shall include, but shall not be limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendment and Reauthorization Act of 1986, ("Sara"), 42
U.S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and
subsequent Hazardous and Solid Waste Amendments of 1984, also known as the 1984
"RCRA" amendments, 42 U.S.C. §9601, et seq.; the Hazardous Material Transportation
Act, 49 U.S.C. §1801, et seq.; the Clean Water Act, as amended, 33 U.S.C. §1311, et
seq.; the Clean Air Act, as amended, 15 U.S.C. §2601 et seq.; the Federal Insecticide,
Fungicide, and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y; the
Emergency Planning and Community Right -to -Know Act of 1986 ("EPCRTKA" or
EPCRA"), as amended, 42 U.S.C. §11001, et seq. (Title III of Sara); the Occupational
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Safety and Health Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq.; any
similar state statute, including without limitation Chapters 252,255,376,403,442, Florida
Statutes, as amended; and the regulations promulgated thereunder, and any other local
laws regulations, including, but not limited to Chapter 24, Environmental Protection, of
the Code of Miami -Dade County, Florida, as all of the foregoing may be amended,
modified, supplemented, superseded or replaced at any time during the Term, that govern
or relate to:
(i) The existence, cleanup and/or remedy of contamination of the Property;
(ii) The protection of the environment from spilled, deposited or otherwise
emplaced contamination;
(iii) The control of hazardous or toxic substances or wastes; or
(iv) The use, generation, discharge, transportation, treatment, removal or
recovery of Hazardous Materials.
13.1.3 "Costs" shall mean all costs incurred in connection with correcting any
violations of any Environmental Laws and/or in connection with the clean-up of
contamination on the Property.
13.1.4 "Clean Up" shall mean any remediation and/or disposal of Hazardous
Materials at or from the Property which is ordered by any federal, state, or local
environmental regulatory agency.
13.1.5 "Underground Storage Tanks" shall mean any fuel oil, petroleum or gas
underground storage tanks which may be located on the Property ("USTs").
Section 13.2 Lessee's Environmental Covenant.
The Lessee shall not cause or permit any Hazardous Materials to be brought upon,
treated, stored, disposed of, discharged, released, produced, manufactured, generated,
refined, or used upon, about or beneath the Property or any portion thereof by the Lessee,
its agents, employees, contractors, Lessees, or invitees except as may be customarily used
and required to conduct marina and restaurant operations.
Lessee shall not permit any activities on the Property that would violate
Environmental Laws. If Lessee should breach this covenant, Lessee shall take all actions
necessary to comply with all Environmental Laws and shall, at Lessee's sole cost and
expense, perform any Clean Up. Lessee's obligation under this section shall survive the
expiration or earlier termination of this Lease for a period of one (1) year.
Section 13.3 Representation by Lessor.
The Lessor represents and warrants that no lawsuits, claims, legal or
administrative, have been brought against Lessor, in connection with the environmental
condition of the Property or the USTs as a result of the Lessor's or any prior Lessee's use
or occupancy of the Property, nor is Lessor aware of the existence of any Hazardous
Materials thereon, except as may be present in connection with the USTs and/or the
asbestos containing materials as expressly provided for herein.
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Section 13.4 Lessee's Indemnification.
Lessee shall indemnify, protect, defend and hold Lessor free and harmless from
and against any and all suits, actions, claims, regulatory actions, liabilities, penalties,
losses, injuries, and expenses, including attorney's fees, resulting from the death or injury
to any person, destruction or damage to property, arising from or caused by the presence,
in or about the Property, of any Hazardous Materials placed on orabout the Property by
Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's
failure to comply with all applicable Environmental Laws. The initial liability of the
Lessee provided by this Section 1.3.4 shall be limited to Five Hundred Thousand Dollars
($500,000). In the event the Lessee is obligated to expend greater than $500,000, the
Lessee, shall be entitled to a credit against Rent for the amount up to a cap of $1,000,000
(total remediation costs would be equal to $1,500,000). The Rent credit shall be applied
equally over the succeeding ten (10) years of the Term. In the event the cost of
remediation should exceed $1,500,0.00, the Lessor reserves the right to extend the limit
above 1.5 million. If Lessor does not grant the modification, than the lessee shall have the
right to cancel this Lease by providing the Lessor with notice of its intention to do so
within fifteen (15) days of Lesses's receipt of the Environmental Assessment Report.
Section 13.5 Asbestos.
The Lessee acknowledges that prior to the Effective Date, the Lessee has
undertaken an environmental site assessment of the Property and accordingly, the Lessee
knows that there may be asbestos containing materials ("ACM") in the form of ceiling
tiles, plaster walls and roofing material. The Lessee shall, at Lessee's sole cost and
expense, Clean Up any such ACM in the event that as a result of building renovations or
modifications such ACM becomes friable.
Section 13.6 Survival of Lessee's and Lessor's Obligations.
The respective rights and obligations of Lessor and Lessee under this Article XIII
shall survive the expiration or termination of this Lease for a period of one (1) year.
Section 13.7 Cost of Environmental Remediation.
The Lessee shall be responsible to pay for the cost of removal of any hazardous
materials or remediation of any existing contamination at the Property, if any, at its own
cost and expense.
ARTICLE XIV
DAMAGE OR DESTRUCTION OF PROPERTY
Section 14.1 Definitions. For the purposes of this Article XIV, the following words
shall have the meanings attributed to them in this Section 14.1:
(a) "Completely Destroyed" means the destruction of the safe, leasable use or
occupancy of a substantial portion of the Property under this Lease which
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damage cannot reasonably be repaired, restored or replaced within one
hundred and eighty (180) calendar days from the date on which the
damage occurred.
(b) "Partial Destruction" means any damage to the Property which damage
can reasonably be repaired, restored or replaced within one hundred eighty
(180) calendar days from the date on which the damage occurred.
Section 14.2 Lessee's Duty to Repair. Restore or Replace the Property After
Damage.
In the event of damage by fire or otherwise of the Property including any
machinery, fixtures or equipment which are a part of the Property, the Parties agree as
follows:
(i) In the event of Partial Destruction, within sixty (60) calendar days of the
damage (subject to reasonable delay and/or Force Majeure), the Lessee shall use the Net
Insurance Proceeds available for that purpose, together with Lessee's own funds (if the
Net Insurance Proceeds are insufficient) to commence and diligently pursue to
completion within ,one hundred eighty (180) calendar days from the date the damage
occurred (subject to reasonable extension and/or Force Majeure), the repair, restoration or
replacement of the damaged or destroyed portion of the Property ("Restoration Work"),
and this Lease shall remain in full force and effect, with no abatement in Rent.
(ii) In the event the Property is Completely Destroyed at any time during
Lease Years One (1) through Thirty-nine (39) of the Lease Term, and in Lease Years'
Forty (40) through Forty-eight (48), if the Renewal Teim has been exercised, within sixty
(60) days of the damage, the Lessee, in its sole discretion, shall have the option (a) at the
Lessee's sole cost and expense, (together with Net Insurance Proceeds available for that
purpose), to commence and diligently pursue to completion the Restoration Work, in
accordance with the provisions of Section 14.3 below, and Lessee shall complete the
Restoration Work within twelve (12) months from the date the damage occurred and this
Lease shall remain in full force and effect, with no abatement in Rent, or (b) to elect not
to undertake the Restoration Work by providing written notice to Lessor and in which
event this Lease shall terminate, and the Lessee shall, at the Lessee's sole cost and
expense, (but using along with the Lessee's own funds, Net Insurance Proceeds available
for that purpose) deliver possession of the Property to Lessor free and clear of all debris
and Lessor and Lessee shall each be released thereby from any further obligations
hereunder accruing after the effective date of such termination, except that such release
shall not apply (aa) to any Rent. or Additional Rent or other sums accrued or due (bb)
Lessee's obligations regarding surrender of the Property including the removal of debris,
and (cc) environmental liability as provided for in Article XIII.
(iii) In the event the Property is Completely Destroyed at any time during
Lease Years Thirty-nine (39) or Forty (40), if the Renewal Term option has not been
exercised, and at any time during Lease Years Forty-seven (47), Forty-eight (48) and
Forty-nine (49), either Party, in its sole discretion, shall have the right to terminate this
Lease by giving written notice to the other Party within ninety (90) days from the date the
damage occurred. In the event this Lease is terminated as provided above, the Lessee
shall, at the Lessee's sole cost and expense, (but using along with the Lessee's own
funds, Net Insurance Proceeds available for that purpose) deliver possession of the
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Property to Lessor free and clear of all debris and Lessor and Lessee shall each be
released thereby from any further obligations hereunder accruing after the effective date
of such termination, except that such release shall not apply (aa) to any Rent or
Additional Rent or other sums accrued or due (bb) Lessee's obligations regarding
surrender of the Property including the removal of debris, and (cc) environmental liability
as provided for in Article XIII.
Section 14.3 Performance of Restoration Work.
In the event Lessee undertakes any Restoration Work in accordance with the
provisions of this Article, such Restoration Work by Lessee shall be substantially as
possible to the condition that existed immediately prior to the damage, and shall be
perfoinned in accordance with the provisions of Article VI applicable to the construction
of the initial Leasehold Improvements. Lessor hereby acknowledges and agrees that
Lessee's obligations hereunder and the time periods set forth above are subject to Force
Majeure, and reasonable extensions based on the severity of the damage.
Section 14.4 No Right to Terminate.
Except for the Lessee's right to terminate this Lease in accordance with the
provisions of Subsections 14.2(ii)(b) and (iii), Lessee waives the provisions of any
statute, code or judicial decision which grants Lessee the right to teiuuinate this Lease in
the event of damage or destruction of the Property.
Section 14.5 Lessee's Right to Terminate.
If Lessee or Lessor elect to exercise the option given under Subsections 14.2(ii) or
(iii), respectively, to teiininate this Lease, then any and all Net Insurance Proceeds paid
for damage or destruction of the Property shall be applied as follows:
(i) First toward debris removal; and
(iii) Second, toward the balance of the proceeds, if any, after payment of any
Rent and/or Additional Rent due, shall be paid to the Parties as their respective interests
may then appear.
Section 14.6 Payment for Construction of the Restoration Work.
All Net Insurance Proceeds shall be applied by the Parties to the payment of the
cost of the Restoration Work (pursuant to this Article and Section 9.3) to restore the
Property. The Net Insurance Proceeds shall be paid out, the Restoration Work shall be
performed, and the Lessee shall make additional deposits with an escrow agent, if any are
required, all in accordance with Section 9.3, as may be applicable.
Section 14.7 Collection of Insurance Proceeds.
The Lessor shall in no event be responsible for the non -collection of any
insurance proceeds under this Lease but only for insurance money that shall come into its
hands.
Section 14.8 Unused Insurance Proceeds and Deposits.
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In the event any Net Insurance Proceeds or sums deposited with an escrow agent
or Lessor in connection with the Restoration Work shall remain in the hands of an escrow
agent or the Lessor, if the Parties have agreed to allow the Lessor to hold the insurance
proceeds until completion of the Restoration Work, and if the Lessee shall not then be in
default under this Lease in respect of any matter or thing of which notice of default has
been served on the Lessee, then the remaining funds shall be applied first towards any
unpaid Rent, and the balance paid to the Lessee.
ARTICLE XV
EMINENT DOMAIN
Section 15.1 Total Condemnation.
In the event that all of the Property (or such portion thereof as shall, in the good
faith opinion of Lessor or Lessee, render it economically unfeasible to effect restoration
thereof for its intended purpose) shall be taken for any public purpose by the right of
condemnation, the exercise of the power of eminent domain or shall be conveyed by the
Lessor and Lessee acting jointly to avoid proceedings of such taking, the Rent and money
to be treated as Additional Rent pursuant to this Lease shall be prorated and paid by the
Lessee to the Date of Taking or conveyance in lieu thereof, and this Lease shall terminate
and become null and void as of the Date of Taking or such conveyance; and the amount
of damages resulting to Lessor and Lessee, respectively, and to their respective interests
in and to the Property, the Leasehold Improvements, and in connection with this Lease,
shall be separately determined and computed by the court having jurisdiction and
separate awards and judgments with respect to damages to Lessor and Lessee,
respectively, and to each of their respective interests, shall be made and entered.
In the event that a court shall make a single Net Condemnation Award
without separately determining the respective interests of Lessor and Lessee, and if
Lessor and Lessee shall not agree in writing as to their respective portions of an award
within twenty (20) days after the date of the final determination by the court of the
amount of it, Lessor and Lessee agree to submit the matter to the court on stipulation for
the purpose of a judgment deteuminative of their respective shares. In the event for any
reason the trial judge refuses to permit a deteiniination by judgment, then the respective
interests of Lessor and Lessee shall be determined by arbitration under the provisions set
forth in Section 16.6 of this Lease. In any event, the Lessor shall be entitled to receive its
reversionary interest in the Property and Leasehold Improvements and Lessor's present
value of Rent and Additional Rent due under the terms of the Lease. Lessee shall be
entitled to the then value of its Leasehold Estate and the Leasehold Improvements which
a buyer willing but not obligated to buy, would pay therefore in an arm's' length
transaction. In no event shall Lessee be entitled to compensation for any fee simple
ownership interest in the Property at the time of condemnation.
Section 15.2 Partial Condemnation.
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(a) In the event less than all of the Property shall be taken for any public use
or purpose by the right or the exercise of the power of eminent domain, or shall be
conveyed by the Lessor and Lessee acting jointly to avoid proceedings of such taking,
and Lessee shall be of the good faith opinion that it is economically feasible to effect
restoration thereof, then this Lease and all the covenants, conditions and provisions
hereunder shall be and remain in full force and effect as to all of the Property not so taken
or conveyed (except as provided in Section 15.5). Lessee shall to the extent the proceeds
of the Net Condemnation Award are made available to it, pursuant to the terms hereof,
remodel, repair and restore the Property so that it shall be comparable to the Property
prior to the condemnation, taking into consideration the fact of the condemnation;
provided, however, that in so doing, Lessee shall not be required to expend more than the
amount of any Net Condemnation Award actually received by Lessee.
(b) The Net Condemnation Award allowed to Lessor and Lessee shall be paid
to and received by the Parties as follows:
(i) There shall be paid to the Lessor the value of the portion of the
land so taken and Lessor's reversionary interest in the improvements so taken, which land
and reversionary improvements shall be valued as if unencumbered. Lessor shall further
be paid an amount by which Lessor's Rent and Additional Rent have been reduced by the
taking;
(ii) There shall be paid to the Lessee any amount by which Lessee's
profits and value of Lessee's interest in the Lease and the Property have been reduced by
the taking after any payment required by the Lease;
(iii) There shall be paid to the Lessee the amount required to complete
the remodeling and repairs to the Property pursuant to Section 14.2 above;
(iv) The Lessor and Lessee shall be paid portions of the balance of the
Net Condemnation Award or awards, if any, which are allocable to and represented by
the value of their respective interest in the Property as found by the court in its
condemnation award. In the event that a court shall make a single Net Condemnation
Award without separately deter ining the respective interests of Lessor and Lessee, and
if Lessor and Lessee shall not agree in writing as to their respective portions of such
award within twenty (20) days after the date of the final determination by the court of the
amount of it, Lessor and Lessee agree to submit the matter to the court on stipulation for
the purpose of a judgment determinative of their respective shares. In the event for any
reason the trial judge refuses to permit a determination by judgment, then the respective
interests of Lessor and Lessee shall be determined by the arbitration provisions set forth
under Section 16.6 of this Lease.
Section 15.3. Adjustment of Rent Upon Partial Taking..
In the event a part of the Property shall be taken for any public'use or purpose by
the exercise of the power of eminent domain, or shall be conveyed by Lessor and Lessee
acting jointly to avoid proceedings of such taking, then Rent, and money to be treated as
Additional Rent pursuant to this Lease shall be paid by Lessee to the Date of Taking or
conveyance in lieu thereof, and after such date the Rent for the remainder of the Property
shall be reduced in the same proportion that Gross Revenues have been reduced due to
such taking compared to the Gross Revenues immediately prior to the taking.
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Section 15.4. Deposit of Condemnation Award with Escrow Agent.
Unless the effect of a condemnation proceeding shall be to terminate this Lease
by operation of law or as provided in Section 14.2 above, any Net Condemnation Award
made in respect to the Property in a condemnation proceeding shall be deposited with an
escrow agent selected by the Lessor and Lessee escrow agent) to be disbursed for the cost
of restoring the Property and for other related purposes.
Section 15.5. Temporary Taking.
In the event that all or any portion of the Property shall be taken by the right of
condemnation or the exercise of the power of eminent domain for governmental use or
occupancy for a temporary period, this Lease shall not terminate and Lessee shall
continue to perfouui and observe all of its obligations (including the obligation to pay
Rent as provided throughout this Lease) as though the temporary taking had not occurred
except only to the extent that it,may be prevented from so doing by the terms of the order
of the authority which make the temporary taking or by the conditions resulting from the
taking, including the loss of its possession of all or any part of the Property. In the event
the taking for governmental occupancy is for a period entirely within the term of this
Lease, then Lessee shall be entitled to receive the entire amount of any Net
Condemnation Award made for the taking, whether paid by way of damages, Rent or
otherwise. If the period of governmental occupancy extends beyond the termination of
the Lease Term, the Lessor shall only be entitled to receive that portion of the Net
Condemnation Award allocable to the period beyond the termination of the Lease Term.
The amount of any Net Condemnation Award payable to Lessee, on account of a
temporary taking of all or any part of the Leasehold Improvements, shall be deemed a
part of the Lessee's Leasehold Estate for all purposes in this Lease. If the Net
Condemnation Award does not separately deteiruine the amount applicable to the taking
of the interest of the Lessor in this Lease and in the Leasehold Improvements and if
Lessor and Lessee shall not agree in writing as to the proportion of the award so
applicable to the respective Parties, then Lessor and Lessee shall submit the matter to the
court on stipulation for the purpose of a judgment determinative of the interest of the
Parties in accordance with the terms of this Section 15.5. In the event for any reason the
trial judge refuses to peiruit a deterurination by judgment, then the respective interests of
Lessor and Lessee shall be determined by the arbitration provisions set forth under
Section 16.6 of this Lease.
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ARTICLE XVI
LESSEE DEFAULTS & LESSOR
REMEDIES FOR DEFAULT
Section 16.1 Lessee Default.
The occurrence of any one or more of the following events is deemed a "Lessee
Default:"
(a) If the Lessee defaults in the due and punctual payment of any installment
of Base Rent, Percentage Rent or any other sums required to be paid hereunder as
Additional Rent, as and when due and payable in accordance with this Lease, and such
default continues for more than (10) ten days after the sum is due;
(b) Except with respect to an event of Force Majeure, in the event Lessee shall
cease to operate its business, unless permitted by Lessor in connection with alterations or
renovations, for a period of fifteen (15) consecutive days;
(c) In the event a petition in bankruptcy under any present or future
bankruptcy laws (including but not limited to reorganization proceedings or voluntary
insolvency filing) be filed by or against Lessee and such petition is not dismissed within
Thirty (30) days from the filing thereof, or in the event Lessee is adjudged a bankrupt;
(d) In the event an Assignment for the benefit of creditors is made by Lessee;
(e) In the event of an appointment by any court of a receiver or other court
officer of Lessee's Property and such receivership is not dismissed within thirty (30) clays
from the date of such appointment;
(f) In the event Lessee removes, attempts to remove, or permits to be
removed from the Property, except in the usual course of trade, the Leasehold
Improvements (furnishings, fixtures, and equipment) installed or placed . upon the
Property by the Lessee during the Lease Term;
(g) In the event Lessee, before the expiration of the term of this Lease, and
without the written consent of Lessor, vacates the Property or abandons the possession
thereof, or uses the same for purposes other than the purposes for which the same are
hereby leased, or ceases to use the Property for the purposes herein contained;
(h) In the event Lessee does not accept the adjusted Base Rent and Percentage
Rent rates determined by the independent appraiser every five (5) years.
(i) In the event an execution or other legal process is levied upon the goods,
furniture, effects or other personal property of Lessee brought on the Property, or upon
the interest of Lessee in this Lease, and the same is not satisfied, dismissed or Bonded
within thirty (30) days from such levy; or
(j) In the event Lessee defaults in the due performance or observance of any
lease covenant or condition or provision, and such default continues for more than (15)
fifteen days ("Cure Period") after written notice of the default from the Lessor to the
Lessee, or such longer period as is reasonably necessary to diligently cure such default.
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Section 16.2 Remedies of Lessor.
(a) If any Lessee Default occurs, Lessor shall have the right after the
expiration of the applicable Cure Period, at the option of Lessor, to terminate this Lease
upon providing fifteen (15) days written notice if the default has not been cured by the
expiration of such fifteen (15) day period. An Event of Default shall be deemed to have
occurred at the expiration of the Cure Period if the default has not been cured by the
expiration of such fifteen (15) day period, or such reasonable time as necessary to cure
the Default if the Default can not be cured within said Cure Period and Lessee can
demonstrate that it is diligently pursuing the cure of said default. Additionally, if any
Event of Default occurs, Lessor may, at its option, from time to time, without terminating
this Lease, re-enter and re -let the Property, or any part thereof, as the agent and for the
account of Lessee upon such terms and conditions as Lessor may deem advisable or
satisfactory, in which event the rents received on such re -letting shall be applied first to
the expenses of such re -letting and collection including but not limited to, necessary
renovation and alterations of the Property, reasonable attorneys fees, any real estate
commissions paid, and thereafter toward payment of all sums due or to become due to
Lessor hereunder, and if a sufficient sum shall not be thus realized or secured to pay such
sums and other charges, at Lessor's option, Lessee shall pay Lessor any deficiency
immediately upon demand therefore, notwithstanding that Lessor may have received
periodic rental in excess of the periodic rental stipulated in this Lease in previous or
subsequent rental periods, and Lessor may bring an action therefore as such deficiency
shall arise. Nothing herein, however, shall be construed to require Lessor to re-enter and
re -let the Property in any event. Lessor shall not, in any event, be required to pay Lessee
any surplus of any sums received by Lessor on a re -letting of said Property in excess of
the Rent provided in this Lease.
(b) If any Event of Default occurs, Lessor shall have the right to obtain
injunctive and declaratory relief, temporary and/or peinianent, against Lessee or any acts,
conduct or omissions of Lessee, and to further obtain specific performance of any tend,
covenant or condition of this Lease.
(c) If any Event of Default occurs, Lessor shall have the right, at its option, to
declare all Rent (or any portion thereof) for the entire remaining Lease Term, and other
indebtedness owing by Lessee to Lessor, if any, immediately due and payable without
regard to whether possession of the Property shall have been surrendered to or taken by
Lessor, and may commence action immediately thereupon and recover judgment
therefore.
(d) If any Event of Default occurs, Lessor, in addition to other rights and
remedies it may have, shall have the right to remove all or any part of Lessee's personal
property from the Property and any personal property removed may be stored in any
public warehouse or elsewhere at the cost of, and for the account of Lessee, and Lessor
shall not be responsible for the care' or safekeeping thereof whether in transport, storage
or otherwise, and Lessee hereby waives any and all claim against Lessor for loss,
destruction and/or damage or injury which may be occasioned by any of the aforesaid
acts. .
(e) No such re-entry or taking possession of the Property by Lessor shall be
construed as an election on Lessor's part to terminate this Lease unless a written notice of
such intention is given to Lessee. Notwithstanding any such re -letting without
42
termination, Lessor may at all times thereafter elect to terminate this Lease for such
previous default. Any such re-entry shall be allowed by Lessee without hindrance, and
Lessor shall not be liable in damages for any such re-entry, or guilty of trespass or
forcible entry.
(f) Any Rent which may be due Lessor, whether by acceleration or otherwise
as herein provided in this Article, shall include Base Rent, Percentage Rent and any other
rents, costs and expenses denominated as Additional Rent in this Lease.
(g) It is expressly agreed that the forbearance on the part of Lessor in the
institution of any suit or entry of judgment for any part of the Rent herein reserved to
Lessor, shall not serve as a defense against nor prejudice a subsequent action for such
Rent. Lessee hereby expressly waives Lessee's right to claim a merger or waiver of such
subsequent action in any previous suit or in the judgment entered therein. Furthermore,
it is expressly agreed that claims for liquidated Base Rent and/or Percentage Rent may be
regarded by Lessor, if it so elects, as separate and independent claims capable of being
separately assigned.
(h) Any and all rights, remedies and options given in this Lease to Lessor
shall be cumulative and in addition to and without waiver of, or in derogation of, any
right or remedy given to it under any laws now or hereafter in effect.
Section 16.3 No Waiver by Lessor.
The waiver (either expressed or implied by law) by Lessor of any default of any
term, condition or covenant herein contained shall not be a waiver of any subsequent
default of the same or any other term, condition or covenant herein contained. The
consent or approval by Lessor to or of any act by Lessee requiring Lessor's consent or
approval shall not be deemed to waive or render unnecessary Lessor's consent to or
approval of any subsequent similar act by Lessee. No re-entry hereunder shall bar the
recovery of rents or damages for the default or delay on the part of Lessor to enforce any
right hereunder and shall not be deemed a waiver of any preceding default by Lessee of
any term, covenant or condition of this Lease, or a waiver of the right of Lessor to annul
this Lease or to re-enter the Property or to re -let same.
Section 16.4 Late Payments.
In the event any payment due Lessor under this Lease shall not be paid on the due
date, Lessee agrees to pay, in addition to the payment then due, one-half (0.5%) percent
of the amount due or the sum of Two Hundred and 0/100 Dollars ($200.00), whichever is
greater, for each day that the payment is late, ("Late Fee"), and in the event that any
check, bank draft, order for payment or negotiable instrument given to Lessor for any
payment under Lease shall be dishonored for any reason whatsoever not attributable to
Lessor, Lessor, in addition to the Late Fee, shall be entitled to make an administrative
charge to Lessee of One Hundred and 0/100 Dollars ($100.00), or the actual charge, to
Lessor by Lessor's bank for dealing with such dishonored tender, whichever is greater. In
the event that it shall be necessary for Lessor to give more than one (1) written notice to
Lessee of any violation of this Lease, during the term hereof, Lessor shall be entitled to
make an administrative charge to Lessee of One Hundred and 0/100 Dollars ($100.00) for
each such subsequent notice after the first notice. Lessee recognizes and agrees that the
43
charges which Lessor is entitled to make upon the conditions stated in this section
represent, at the time this Lease is made, a fair and reasonable estimate and liquidation of
the costs of Lessor in the administration of the Property resulting from the events
described which costs are not contemplated or included in any Rent, or other charges
provided to be paid by Lessee to Lessor in this Lease. Any charges becoming due under
this Section of this Lease shall be added to and become due with the late payment for
which the charge was assessed and shall be collectible as a part thereof.
Section 16.5 Remedies Cumulative.
No remedy conferred upon or reserved to the Lessor or the Lessee shall be
considered exclusive of any other remedy, but shall be cumulative and shall be in
addition to every other remedy given under this Lease or existing at law or in equity or by
statute; and every power and remedy given by this Lease to the Lessor or the Lessee may
be exercised from time to time and as often as occasion may arise or as may be deemed
expedient by the Lessor or the Lessee. No delay or omission of Lessor or Lessee to
exercise any right or power arising from any default shall impair any right or power, nor
shall it be construed to be a waiver of any default or any acquiescence in it.
Section 16.6 Arbitration.
(a) Request to Arbitrate. The Parties hereby agree that, subject to the consent
of the City Manager and the Lessee, which consent may be withheld by either party for
any reason, any dispute, disagreement or controversy arising under this Lease, or with
respect to the interpretation or enforcement of this Lease may be settled by arbitration.
Either Party may request to arbitrate by providing written notice to the other Party setting
forth the nature of the request to arbitrate. Within fifteen (15) days of receipt of such
request to arbitrate, the other Party shall respond as to its agreement or disagreement to
arbitrate. Failure of the other Party to respond shall be deemed denial of a request to
arbitrate.
(b) Procedures. In the event arbitration is agreed to, the following procedures
will govern any arbitration according to this Lease.
(i) Within ten (10) days of the Parties agreeing to arbitrate, each party
shall designate an arbitrator.
(ii) Within ten (10) days after the appointment of the two arbitrators,
the two arbitrators shall meet and appoint a third arbitrator which shall constitute the
Arbitration Panel.
(iii) Every member of the Arbitration Panel must be a member of the
American Arbitration Association ("Member"). In addition to the foregoing criterion,
each Member shall satisfy the following conditions: (i) no Member shall be a person
who is or has been an employee of either the Lessor or Lessee during the five (5) year
period immediately preceding his or her appointment; (ii) each Member shall be neutral
and independent of the Parties to this Lease; (iii) no Member shall be affiliated with
either Parties' auditors; and (iv) no Member shall have a conflict of interest with
(including, without limitation, any bias towards or against) a Party hereto.
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(iv) If either party shall fail to designate a Member within ten (10) days
after receipt of the written notice from the other party, then such other party may request
the President of the Florida Chapter of the American Arbitration Association to designate
a Member, who, when so designated, shall act in the same manner as if he had been the
Member designated by the party so failing to designate an arbitrator.
(v) If the two Members appointed by the Parties are unable to agree
upon the third Member within ten (10) days from the last date of designation, then upon
the request of either of the two (2) Members, or either Party, such third Member shall be
designated by the President of the Florida Chapter of the American Arbitration
Association, who shall appoint such third Member within ten (10) days of the request.
(vi) A hearing shall be commenced within thirty (30) days following
the selection of the Arbitration Panel. The Parties shall each make a good faith effort to
cooperate with each other in all respects in connection with the exchange of documents
relevant to the subject dispute. A court reporter shall make a transcript of the hearing.
The Parties and the Arbitration Panel shall use their best efforts to conclude the hearing
within ten (10) days. The Parties shall be entitled to such pre-trial discovery as they may
agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the
right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel
may grant continuances only by the agreement of both Parties. The Arbitration Panel
may render a decision at the close of the hearing, or may request briefs on any or all
issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on
the schedule set by the Arbitration Panel, but in any event no later than forty-five (45)
days following the commencement of the hearing. The Arbitration Panel shall render a
determination within thirty (30) days from the conclusion of the hearing, and in the event
briefs are submitted, within thirty (30) days after receipt of said briefs. If no
determination is rendered within such time, unless the Parties agree otherwise, a new
Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall
render a determination solely upon review of the record of the hearing without a further
hearing.
(vii) All actions, hearings and decisions of the Arbitration Panel shall be
conducted, based upon and in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. In deteunining any matter before them, the Arbitration
Panel shall apply the terms of this Lease, and shall not have the power to vary, modify or
reform any terms or provisions of the Lease in any respect. No Arbitrator is authorized to
make an award of punitive or exemplary damages. The Arbitration Panel shall afford a
hearing to the Lessor and to the Lessee who shall each have the right to be represented by
counsel at such hearing and to call witnesses, and the right to submit evidence with the
privilege of cross-examination on the question at issue. All arbitration hearings shall be
held at a place designated by the Arbitration Panel in Miami -Dade County, Florida.
(viii) The Arbitration Panel selected hereunder shall agree to observe the
Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American
Arbitration Association and the American Bar Association, or any successor code. The
decision of a majority with respect to any matter referred to it under this Lease shall be
final, binding and conclusive on the Lessor and Lessee and enforceable in any court of
competent jurisdiction. Together with the determination, the Arbitration Panel shall
provide a written explanation of the basis for the determination. Each party shall pay the
45
fees and expenses of the Member of the Arbitration Panel designated by such party, such
party's counsel and witness fees, and one-half ('h) of all expenses of the third Member of
the Arbitration Panel. The decision of the Arbitration Panel will be final, and may be
enforced according to the laws of the State of Florida and judgment upon the award
rendered by the Arbitration Panel shall be entered in any Court having jurisdiction
thereof.
ARTICLE XVII
ACCESS BY LESSOR
Section 17.1 Right of Entry.
Lessor and Lessor's agents shall have the right to enter the Property at all
reasonable times upon reasonable notice to the Lessee (except in the case of an
emergency when no notice is required), to examine the same. If Lessee shall not be
personally present to open and permit entry into the Property at any time when for any
reason an entry therein shall be necessary or permissible, Lessor or Lessor's agents may
enter the same without in any manner affecting the obligations and covenants of this
Lease. Nothing herein contained, however, shall be deemed or construed to impose upon
Lessor any obligation, responsibility or liability whatsoever, for the care, maintenance or
repair of the Property or any part thereof, except as otherwise herein specifically
provided.
ARTICLE XVIII
DAMAGE TO LESSEE'S PROPERTY
Section 18.1 Loss and Damage.
Unless caused by a negligent act or omission of Lessor or the Lessor's officers,
employees, or agents, the Lessor shall not be responsible for any damage to any property
of Lessee (including without limitation appliances, equipment, machinery, stock,
inventory, fixtures, furniture, improvements, displays, decorations, carpeting and
painting), or of others located on the Property, nor for the loss of or damage to any
property of Lessee, or of others by theft or otherwise. Lessor shall not be liable for any
injury or damage to persons or Property resulting from fire, smoke, explosion, falling
plaster, steam, gas, electricity, water, rain, or leaks from any part of the Property or from
the pipes, appliances or plumbing works or from the roof, street or subsurface or from
any other place by dampness or by any other cause of whatsoever nature. -Lessor shall not
be liable for any latent defect in the Property. All property of Lessee kept or stored on
the Property shall be so kept or stored at the risk of Lessee only and Lessee shall hold
Lessor haiiuless from any and all claims arising out of damage to same, including
subrogation claims by Lessee's insurance carriers.
ARTICLE XIX
HOLDING OVER, SUCCESSORS
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Section 19.1 Holding Over.
In the event Lessee remains in possession of the Property after the expiration of
the Lease Term, Lessee, at the option of Lessor, shall be deemed to be occupying the
Property as a Lessee at sufferance at a monthly rental equal to two (2) times the Base
Rent and the Percentage Rent of the preceding Lease Year, payable during the last month
of the Lease Term hereof. In addition, Lessee agrees to pay monthly: (a) one -twelfth
(1/12) of the taxes for the Property based upon the total taxes payable for the Lease Year
immediately prior to the Lease Year in which the expiration occurs; (b) cost of insurance
for which Lessee would have been responsible if this Lease had been renewed on the
same teiuis contained herein; (c) all sales taxes assessed against such increased rent, and
(d) any and all Additional Rent otherwise payable by Lessee hereunder. Such tenancy
shall be subject to all the other conditions, provisions and obligations of this Lease.
Lessee's obligation to pay any rents or sums provided in this Lease shall survive the
expiration or earlier termination of this Lease.
Section 19.2 Successors.
All rights and liabilities herein given to, or imposed upon, the respective Parties
hereto shall extend to and bind the several respective heirs, executors, administrators,
successors, and the assigns of the said Parties; and if there shall be more than one Lessee,
they shall be bound jointly and severally by the terms, covenants and agreements herein.
Nothing contained in this Lease shall in any manner restrict Lessor's right to assign or
encumber this Lease and, in the event Lessor sells its interest in the Property and the
purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved
of all further obligations hereunder.
ARTICLE XX
EQUAL OPPORTUNITY & NON-DISCRIMINATION
Section 20.1 Equal Employment Opportunities.
The Lessee agrees that during the Lease Tenni; (a) it will not discriminate against
any employee or applicant for employment because of race, creed, color, place of birth,
religion, national origin, sex, age, marital status, veteran and disability status and will
take affirmative action to assure that applicants are employed and that employees are
treated during employment without regard to race, creed, color, place of birth, religion,
national origin, sex, age, marital status, veteran and disability status; (b) post in
conspicuous places, available to employees and applicants for employment, notices, the
form of which is to be provided by the Lessor, setting forth provisions for this
nondiscrimination clause; (c) in all solicitations or advertisements for employees placed
by or on behalf of the Lessee shall state that all qualified applicants will receive
consideration for employment without regard to race, creed color or national origin; and
(d) if applicable, to send to each labor union or representative of workers with which the
construction contractor has a collective bargaining agreement or other contract or
understanding a notice, the form of which is to be provided by the Lessor, advising the
47
union or representative of the Lessee's commitment and posting copies of the notice in a
conspicuous places available to employees and applicants for employment.
Section 20.2 Affirmative Action.
Lessee shall have in place an Affirmative Action/Equal Opportunity "goal" and
shall try to attain, but not mandate a plan for its achievement, which will strive to provide
equal opportunity in hiring and promoting for women, minorities, the disabled and
veterans. Such plan will include a set of positive measures which will be taken to insure
nondiscrimination in the work place as it relates to hiring, firing, training and promotion.
This is an inspirational goal and not a requirement.
Section 20.3 Non -Discrimination.
Lessee represents and warrants to the Lessor that it will comply with § 18-188,
§18-189 and §18-190 of the City of Miami Code incorporated herein. Lessee hereby
represents and warrants that it does not and will not engage in discriminatory practices
and shall not discriminate in connection with Lessee's use of the Property on account of
race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital
status or sexual orientation. Furthermore, should the Lessee have existing or introduce
membership rules for patrons at the Property, that it will comply with the non-
discrimination provisions incorporated within §18-188, §18-189 and §18-190 of the City
of Miami Code as incorporated herein by reference.
ARTICLE XXI
MISCELLANEOUS
Section 21.1 Accord and Satisfaction.
No payment by Lessee or receipt by Lessor of a lesser amount than the Rent
herein stipulated to be paid shall be deemed to be other than on account of the earliest
stipulated Rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction, and
Lessor may accept .such check or payment without prejudice to Lessor's right to recover
the balance of such Rent or pursue any other remedy provided herein or by law.
Section 21.2 Entire Agreement.
This Lease and the Exhibits attached hereto and forming a part thereof as if fully
set forth herein constitute all of the covenants, promises, agreements, conditions and
understandings between Lessor and Lessee concerning the Property and there are no
covenants, promises, conditions or understandings, either oral or written, between them
other than as are herein set forth. Neither Lessor nor Lessor's agents have made,nor shall
be bound to any representations with respect to the Property except as herein expressly
set forth, and all representations, either oral or written, shall be deemed to be merged into
this Lease. No course of prior dealings between the Parties or their officers employees,
agents or affiliates shall be relevant or admissible to supplement, explain or vary any of
the terms of this Lease. Acceptance of, or acquiescence in, a course of performance
rendered under this or any prior agreement between the Parties or their affiliates shall not
be relevant or admissible to determine the meaning of any of the terms of this Lease.
48
Except as herein otherwise provided, no subsequent alteration, change or addition to this
Lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by the
Parties. This Lease has been negotiated "at arm's length" by and between Lessor and
Lessee, each having the opportunity to be represented by legal counsel of its choice and
to negotiate the form and substance of this Lease, and therefore in construing the
provisions of this Lease neither party will be deemed disproportionately responsible for
draftsmanship.
Section 21.3 Independent Parties
It is understood and agreed by the Parties hereto that this Lease does not create a
fiduciary or other relationship between Lessor and Lessee, other than Lessor and Lessee
or contracting parties, as applicable. Lessor and Lessee are and shall be independent
contracting parties and nothing in this Lease is intended to make either Party a general or
special agent, joint venturer, partner or employee of the other for any purpose.
Section 21.4 Notices.
Any notice by the Parties required to be given must be served by certified mail
return receipt requested, or by hand delivery, addressed to Lessor or Lessee at:
If to Lessor at:
City Manager
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
With a copy to:
City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
City of Miami
Dept. of PublicFacilities
Asset Management Division
444 SW 2nd Avenue, Suite 325
Miami, Florida 33130
If to Lessee at:
David One, LLC
c/o Lincoln Capital
Attention: Stephen Temes
David One LLC,
c/o 1200 Brickell Avenue
Suite 1410
Miami FL. 33131
With a copy to:
Beloff Parker, PLC
Attention; Jay Phillip Parker
1691 Michigan Avenue
Suite 320
Miami Beach, Florida 33139
All notices given hereunder shall be effective and deemed to have been given
upon receipt by the party to which notice is being given, said receipt being deemed to
have occurred upon hand delivery or posting, or upon such date as the postal authorities
49
shall show the notice to have been delivered, refused, or undeliverable, is evidenced by
the return receipt or proof of deliver. Notwithstanding any other provision hereof, Lessor
shall also have the right to give notice to Lessee in any other manner provided by law. If
there shall be more than one Lessee, any notice required or permitted by the terms of this
Lease may be given by or to any one thereof, and shall have the same force and effect as
if given to all thereof.
Section 21.5 Captions and Section Numbers.
The captions, section numbers, and article numbers appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit, construe, or describe
the scope or intent of such sections or articles of this Lease nor in any way affect this
Lease.
Section 21.6 Partial Invalidity.
If any term, covenant or condition of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, the application of such teuun, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each taint, covenant or condition of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
Section 21.7 Estoppel Certificate.
Lessee agrees that it will, at any time and from time to time, within ten (10)
Business days following written notice by Lessor specifying that it is given pursuant to
this Section, execute, acknowledge and deliver to Lessor a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect and stating the modifications), and
the date to which the Base Rent, Percentage Rent and any other payments due hereunder
from Lessee have been paid in advance, if any, and stating whether or not there are
defenses or offsets claimed by Lessee and whether or not to the best knowledge of
Lessee, Lessor is in default in performance of any, covenant, agreement or condition
contained in this Lease, and if so, specifying each such default of which Lessee may have
knowledge. The failure of Lessee to execute, acknowledge and deliver to Lessor a
statement in accordance with the provisions of this Section within said ten (10) Business
day period shall constitute an Event of Default hereunder and shall also constitute an
acknowledgment by Lessee, which may be relied on by any person holding or proposing
to acquire an interest in the Property or any party thereof or this Lease from or through
the other party, that this Lease is unmodified and in full force and effect and that such
rents have been duly and fully paid to and including the respective due dates immediately
Preceding the date of such notice and shall constitute, as to any person entitled as
aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to
the date of such notice. It is agreed that nothing contained in the provisions of this
Section shall constitute waiver by Lessor of any default in payment of Rent or other
charges existing as of the date of such notice and, unless expressly consented to in
writing by Lessor and, Lessee shall still remain liable for the same.
50
Section 21.9 Waiver.
Failure on the part of either part of complain of any action or non -action
on the part of the other, no matter how long the same may continue, shall never be
deemed to be a waiver by such party of any of its rights hereunder. Further, it is
covenanted and agreed that no waiver at any time of any of the provisions hereof by
either party shall be construed as a waiver of any of the other provisions hereof, and that
a waiver at any time of any of the provisions hereof shall not be construed as a waiver at
any subsequent time of the same provisions. The consent or approval to or of any action
by either party requiring such consent or approval shall not be deemed to waive or render
unnecessary such consent or approval to or of any subsequent similar act by such party.
Section 21.10 Time is of the Essence.
Time is of the essence with respect to the performance of every provision
of this Lease in which time of performance is a factor.
Section 21".11 No Discrimination.
It is intended that the Property shall be developed so that all customers,
employees, Lessees and invitees of the Lessees shall have the opportunity to obtain all
the goods, services, accommodations, advantages, facilities and privileges of the Property
without discrimination because of race, creed, color, sex, age, national origin, ancestry,
handicap or disability of any kind. To that end, Lessee shall not discriminate in the
conduct and operation of its business in the Property against any person or group of
persons because of the race, creed, color, sex, age, national origin, ancestry, handicap or
disability of such person or group of persons.
Section 21.12 Governing Law.
It is the intent of the Parties hereto that all questions with respect to the
construction of the Lease and the rights and the liabilities of the Parties hereto shall be
determined in accordance with the laws of Florida and that all disputes arising hereunder
shall be heard and decided in Miami -Dade County, Florida.
Section 21.13 Waiver of Counterclaims.
Lessee shall not impose any counterclaim or counterclaims for damages in a
summary proceeding or other action based on termination or holdover, it being the intent
of the Parties hereto that Lessee be strictly limited in such instances to bringing a separate
action in the court of appropriate jurisdiction. The foregoing waiver is a material
inducement to Lessor making, executing and delivering this Lease and Lessee's waiver of
its right to counterclaim in any summary proceeding or other action based on termination
or holdover is done so knowingly, intelligently and voluntarily.
Section 21.14 Waiver of Jury Trial.
Lessor and Lessee hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the Parties hereto against the other on, or in respect of,
any matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Lessor and Lessee hereunder, Lessee's use or occupancy of the Lease
51
Property and/or any claim of injury or damage.
Section 21.15 Quiet Enjoyment.
Subject to the terms of this Lease, upon the observance by the Lessee hereunder
of all the terms, provisions, covenants and conditions imposed upon the Lessee, the
Lessor covenants to the Lessee that the Lessee shall peaceably and quietly hold, occupy
and enjoy the Property for the Lease Term without any interruption, disturbance or
hindrance by the Lessor, its successors and assigns, or by persons claiming by, through or
under the Lessor for the Property leased herein, or by persons with title superior to the
Lessor, its successors and assigns.
Section 21.16 Surrender of Possession.
Upon the expiration or earlier termination of the Lease pursuant to the provisions
hereof, the Lessee shall deliver to the Lessor possession of the Property in good repair
and condition, reasonable wear and tear excepted.
Section 21.17 Joint and Several Liability.
If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sign this Lease as Lessee,
or by virtue of a Transfer assume the rights and obligations of the Lessee hereunder, the
liability of each such individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) to pay Rent and perform all
other obligations hereunder shall be deemed to be joint and several, and all notices,
payments and agreements given or made by, with or to any one of such individuals,
corporations, partnerships or other business associations (or any combination of two or
more thereof) shall be deemed to have been given or made by, with or all of them.
Section 21.18 Third Party Beneficiary.
Nothing contained in this Lease shall be construed so as to confer upon any other
party the rights of third party beneficiary.
Section 21.19 Radon.
Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of Radon that exceed Federal and State guidelines have been found in
buildings in Florida. Additional information regarding Radon and Radon testing may be
obtained from your county public health unit.
Section 21.20 No Liability for Act of other Party
Lessee shall not sign any contract, application for any license or permit or do
anything that may result in liability to the Lessor for any indebtedness or obligation of
Lessee, unless expressly provided herein or approved in writing by the Lessor. Except as
expressly authorized in writing, neither Lessor nor Lessee shall make any express or
implied agreement, warranties, guarantees or representations or incur any debt, or
represent that their relationship is other than Lessor and Lessee, unless otherwise agreed
to herein for the management and operation of the Property and neither Lessor nor Lessee
52
shall be obligated by or have any liability under any agreements or representations made
by the other that are not expressly authorized as aforesaid. Lessor reserves the right, at its
sole option, to refuse an agreement for any Federal, State or local grants and loans when
the acceptance of same by either Lessor or Lessee may impose a hardship upon Lessor or
include obligations which extend beyond the Lease Tenn.
Section 21.21 Consents and Approvals.
Except as otherwise provided in Sections 16.6, 14.2(iii) and 20.21, the Lessor
agrees that whenever in this Lease the Lessor's consent or approval or act is required or
permitted, such consent, approval or act shall not be unreasonably withheld or delayed;
and that whenever in this Lease, the Lessor may request or require some act or thing of
Lessee, such request or requirement shall not be unreasonably withheld, conditioned or
delayed. At all times during the Lease Term, each Party shall conduct itself in a
commercially reasonable manner subject to the Lessor's obligations to protect its
proprietary interests and carry out its regulatory powers which shall be effected in a not
unjustly discriminatory manner.
Section 21.23 Rights. Privileges and Immunities: Covenants.
The Lessee shall have, and the Lessor shall fully cooperate in providing to the
Lessee, for its use and enjoyment, all rights, privileges and immunities as shall from time
to time be granted or afforded by Federal, State or local law to restaurant operators or
proprietors.
The Parties agree that each of the terms, covenants and conditions hereof agreed
to be observed or perfonnued by each party shall constitute concurrent conditions of
exchange.
Section 21.24 City of Miami Hiring
Lessee agrees to hire at least sixty-five percent (65%) of its workforce from City of
Miami residents. Lessee also agrees to make. good faith efforts to work in coordination
with local employment services providers such as the South Florida Work Force and the
City of Miami's Economic Initiatives and Access Miami programs to fill its entry level
positions.
IN WITNESS 'WHEREOF, Lessor and Lessee have executed this Lease, or have
caused the same to be executed, as of the date and year first above written.
53
LESSOR:
CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Johnny Martinez
City Manager
ATTEST:
By:
Priscilla A. Thompson
City Clerk
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
By: By:
Calvin Ellis, Director Julie O. Bru
Risk Management Department City Attorney
54
ATTESTED BY:
By:
Name
Title
Company Name
By:
Name
Title
Company Name
55
LESSEE:
By:
Print Name
Title
CORPORATE SEAL
EXHIBIT "A"
SCHEDULE OF LEASEHOLD IMPROVEMENTS
Minimum Marina Renovations
• Complete interior/exterior restoration of the two (2) hangar buildings to afford
best utilization of available space
• Concrete pavement design and construction for marina/boatyard
• Complete dock/bulkhead restoration or replacement alongside marina
• Renovation/installation of tourist pier
Cafe/Casual Dining Area Renovations
• Installation of outdoor covering to facilitate patio use
• Installation of air conditioning
• Complete renovation of kitchen according to federal, state and local regulations
• ADA improvements tooutdoor restaurant bathrooms
56
EXHIBIT "B1"
PROPERTY
LEGAL DESCRIPTION (PARCEL 1)
(UPLANDS - MARINA/BOATYARD)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book
34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of
Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more
particularly described as follows:
Commence at the Southwest corner, of the Northwest 'A, of said Section 22; Thence
South 02°24'44" East, along the Southerly extension of the West line of the NW 1/4 of
said Section 22, for 436.51 feet; Thence North 86°27'43" East for 75.86 feet to a point
labeled HL-78-C said point being a point of intersection with the U.S. Pier -Head
Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of
Miami -Dade County, Florida, said line also being the Northwesterly line of T.I.I.F. Deed
No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public
Records of Miami -Dade County, Florida; Thence along said U.S. Pier -Head Bulkhead
line, for the following described four (4) courses; 1) Thence South 77°01'17" East, for
669.48 feet to a point labeled HL-78-B; 2) Thence North 74°08'10" East for 526.25 feet
to a point labeled HL-78-A; 3) Thence North 43°08'20" East for 250.00 feet; 4) Thence
North 12°08'10" East for 88.25 feet; Thence North 45°44'46" West, departing the
previously described line, for 3.75 feet to a point on the outside face of an existing
Seawall; Thence along the outside face of said seawall for the following described twelve
(12) courses; 1) Thence continue North 45°44'46" West for 12.58 feet; 2) Thence North
46°50'16" West for 262.72 feet to the Point of Beginning_ of the hereinafter described
parcel; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" East
for 0.70 feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'49"
East for 100.72 feet; 7) Thence South 46°47'08" East for 61.00 feet; 8) Thence North
88°45'00" East for 0.64 feet; 9) Thence South 47°14'37" East for 41.99 feet; 10) Thence
North 61°42'01" East for 21.07 feet; 11) Thence South 30°14'35" East for 2.75 feet; 12)
Thence North 62°06'03" East for 5.43 feet to a point of intersection with the Southerly
extension of an existing chain link fence; Thence along said chain link fence and its
southerly extension for the following described three (3) courses; 1) Thence North
49°34'23" West for 26.67 feet; 2) Thence South 49°46'11" West for 14.07 feet; 3) Thence
North 46°34'27" West for 48.90 feet to a point of intersection with the Southeasterly
extension of the edge of an existing concrete slab; Thence along the previously described
edge . of concrete and its Southwesterly and Northerly extensions for the following
descried five (5) courses; 1) Thence North 41°51'16" East for 19.89 feet; 2) Thence North'
45°40'17" West for 20.02 feet; 3) Thence North 41°51'16" East for 10.30 feet; 4) Thence
North 48°08'44" West for 26.07 feet; 5)Thence North 43°17'10" East for 63.60 feet to a
point of intersection with the Boundary line of the tract of. land described under Exhibit A
in that certain Lease Agreement recorded in Official Records Book 9916, at Page 1110,
of the Public Records of Miami Dade County, FLorida; Thence along the previously
described Boundary line, and its Northerly extension, for the following described two (2)
courses; 1) Thence North 76°17'34" West for 63.38 feet; 2) Thence North 12°55'28" East
57
for 138.99 feet to a point of intersection with the back of an existing concrete sidewalk;
Thence along the back of said concrete sidewalk, for the following described twenty one
(21) courses; 1) Thence North 47°44'58" West for 12.22 feet to a point of curvature of a
circular curve concave to the Northeast; 2) Thence Northwesterly, along the arc of said
curve to the right, having a radius of 98.00 feet and a central angle of 16°31'40" for a
distance of 28.27 feet to the point of tangency; 3) Thence North 31°13'18" West for 14.48
feet to a point of curvature of a circular curve concave to the Southwest; 4) Thence
Northwesterly, along the arc of said curve to the left, having a radius of 100.00 feet and a
central angle of 11°38'35" for a distance of 20.32 feet to a point of tangency; 5) Thence
North 42°51'53" West for 5.10 feet to a point of curvature of a circular curve concave to
the Southwest; 6) Thence Northwesterly, along the arc of said curve to the left, having a
radius of 33.00 feet and a central angle of 33°27'08" for a distance of 19.27 feet to the
point of tangency; 7) Thence North 76°19'01" West for 64.42 feet; 8) Thence South
13°57'56" West for 1.47 feet; 9) Thence North 75°50'29" West for 25.93 feet; 10) Thence
North 45°02'51" West for 18.31 feet to a point of curvature of a circular curve concave to
the Southwest; 11) Thence Northwesterly, along the arc of said curve to the left, having a
radius of 64.79 feet and a central angle of 11 °21'21" for a distance of 12.84 feet to the
point of tangency; 12) Thence North 56°24'12" West for 5.41 feet to a point of curvature
of a circular curve concave to the Northeast; 13) Thence Northwesterly, along the arc of
said curve to the right, having a radius of 23.50 feet and a central angle of 30°58'59" for a
distance of 12.71 feet to the point of tangency; 14) Thence North 25°25'13'1 West for 6.96
feet to a point of curvature of a circular curve concave to the South; 15) Thence
Northwesterly, along the arc of said curve to the left, having a radius of 3.00 feet and a
central angle of 51 °3 9' 10" for a distance of 2.70 feet to the point of tangency; 16) Thence
North 77°04'23" West for 125.67
feet to a point of curvature of a circular curve concave to the South; 17) Thence
Northwesterly, Westerly and Southwesterly along the arc of said curve to the left, having
a radius of 10.15 feet and a central angle of 14°26149" for a distance of 2.56 feet to the
point of tangency; 18) Thence South 88°28'48" West for 17.55 feet; 19) Thence North
76°52'13" West for 28.42 feet; 20) Thence South 76°07'58'1 West for 40.18 feet to a point
of curvature of a circular curve concave to the Northwest; 21) Thence Southwesterly,
along the arc of said curve to the right, having a radius of 43.33 feet and a central angle
of 09°48'56" for a distance of 7.42 feet to a point of intersection with a line parallel with
and 95.00 feet Northwesterly of, as measured at right angles, the Northwesterly outside
face of an existing building; Thence South 13° 01'32" West, along the previously
described line, for 135.78 feet; Thence South 12 46'52" West, departing the previously
described line, for 37.38 feet to a point of intersection with a line parallel with and 95.00
feet Northwesterly of, as measured at right angles, the Northwesterly outside face of an
existing building; Thence South 13 07'29" West, along the previously described line and
its southerly extension, for 148.75 feet; Thence South 07°43'57" West for '9.81 feet;
Thence South 49°47'35" West for 4.49 feet; Thence South 43°01'12" East for 77.73 feet;
Thence South 43°33'00" East for 54.15 feet; Thence South 43°26'13" East for 4.55 feet;
Thence South 48°06'57" East for 20.77 feet to a point of curvature of a circular curve
concave to the northeast; Thence Southeasterly, along the arc of said curve to the left,
having a radius of 374.00 feet and a central angle of 09°28'16" for a distance of 61.82
feet to the point of tangency; Thence South 57°35'13" East for 23.28 feet; Thence South
58
80° 19'31 " East for 172.00 feet; Thence South 79° 19' 15" East for 13.23 feet to a point of
intersection with the back of an existing concrete sidewalk running along the north side
of Pan American Drive; Thence along the back of said existing sidewalk and its
northeasterly extension, for the following described five (5) courses; 1) Thence South
74°54'37" East for 28.80 feet; 2) Thence South 77°42'57" East for 5.71 feet to a point of
curvature of a circular curve concave to the Southwest; 3) Thence Southeasterly, along
the arc of said curve to the right, having a radius of 222.00 feet and a central angle of
21°55'13" for a distance of 84.93 feet to a point on said curve; 4) Thence North 87°54'54"
East for 5.28 feet; 5) Thence North 42°23'11" East for 11.27 feet to the Point of
Beginning.
Containing 195,848 sq. ft. or 4.50 acres more or less.
59
LEGAL DESCRIPTION (PARCEL 3)
(UPLANDS - CASUAL OUTDOOR RESTAURANT)
A portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County,
Florida, more particularly described as follows:
Commence at the Southwest corner, of the Northwest 1/, of said Section 22; Thence
South 02°24'44" East, along the Southerly extension of the West line of the NW '/ of said
Section 22, for 436.51 feet; Thence North 86°27'43" East, departing the previously
described line, for 75.86 feet to a point labeled HL-78-C said point being a point of
intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74,
at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the
Northwesterly line of T.I.I.F. Deed No. 19448 to City of Miami, recorded in Deed Book
3130, at Page 260, of the Public Records of Miami -Dade County, Florida; Thence along
said U.S. Pier -Head Bulkhead line, for the following described four (4) courses; 1)
Thence South 77°01'17" East, for 669.48 feet to a point labeled HL-78-B; 2) Thence
North 74°08'10" East for 526.25 feet to a point labeled HL-78-A; 3) Thence North
43°08'20" East for 250.00 feet to a point labeled HL-76; 4) Thence North 12°08'10" East
for 88.25 feet to a point of intersection with the southerly extension of the outside face of
an existing Seawall; Thence along the outside face of said seawall and its southerly
extension for the following described twelve (12) courses; 1) Thence North 45°44'46"
West for 16.33 feet; 2) Thence North 46°50'16" West for 262.72 feet; Thence North
47°06'49" West for 73.59 feet; 3) Thence North 02°02'56" East for 0.70 feet; 4) Thence
North 47°07'52" West for 59.52 feet; 5) Thence North 43°12'49" East for 100.72 feet; 6)
Thence South 46°47'08" East for 61.00 feet; 7) Thence North 88°45'00" East for 0.64
feet; 8) Thence South 47°14'37" East for 41.99 feet; 9) Thence North 61°42'01" East for
21.07 feet; 10) Thence South 30°14'35" East for 2.75 feet; 11) Thence North 62°06'03"
East for 5.43 feet to the Point of Beginning of the hereinafter described parcel; 12)
Thence continue North 62°06'03" East for 82.45 feet; Thence North 38°59'48" West,
departing the previously described face of the seawall and running along the southerly
face of an existing C.B.S. wall and its southerly extension, for 84.41 feet; Thence North
49°09'51" East along the northerly end of said C.B.S. wall for 0.43 feet to a point on the
Edge of an existing Asphalt Pavement; Thence along the Edge of said Asphalt Pavement
and its Northwesterly extension, for the following described three (3) courses; 1) Thence
North 40°50'09" West for 37.58 feet to a point of curvature of a circular curve concave to
the Southwest; 2) Thence Northwesterly, along the arc of said curve to the left, having a
radius of 31.50 feet and a central angle of 33°37'09" for a distance of 18.48 feet to the
point of tangency; 3) Thence North 74°27'18" West for 13.19 feet to a point on the
Northeasterly extension of the edge of an existing concrete; Thence along the previously
described edge of said concrete and its Northeasterly and Southwesterly extensions for
the following descried five (5) courses; 1) Thence South 43°17'10" West for 69.37 feet;
2) Thence South 48°08'44" East for 26.07 feet; 3) Thence South 41°51'16" West for
10.30 feet; 4) Thence South 45°40'17" East for 20.02 feet; 5) Thence South 41°51'16"
West for 19.89 feet to a point of intersection with an existing chain link fence; Thence
along said chain link fence and its southerly extension for the following described three
60
(3) courses; 1) Thence South 46°34'27" East for 48.90 feet; 2) Thence North 49°46'11"
East for 14.07 feet; 3) Thence South 49°34'23" East for 26.67 feet to the Point of
Beginning.
Containing 12,356 sq. ft. or 0.284 acres more or less.
61
LEGAL DESCRIPTION (PARCEL 5)
(UPLANDS - SHARED PARKING AREA)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book
34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of
Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more
particularly described as follows:
Commence at the intersection of the City Monument Lines of SW. 27th Avenue with
South Bay shore Drive as shown on said plat of Dinner Key; Thence along the
Monument Line of said South Bay shore Drive for the following described two (2)
courses 1) Thence North 36°17'22" East for 1131.51 feet; 2) Thence North 51°31'O1"
East, for 33.47 feet; Thence South 76°46'59" East, departing the previously described
line, for 98.06 feet; Thence South 51°31'O1" West for 8.28 feet; Thence South 12°58'01"
West for 17.90 feet; Thence North 76°28'34" West for 5.25 feet to a point of intersection
with a line parallel with and 22.22 feet southeasterly of as measured at right angles, the
southeasterly right-of-way line of South Bay Shore Drive; Thence South 36°09'01" West,
along the previously described line, for 245.49 to a point of intersection with the
northerly right-of-way line of Chart House Drive as shown on the Sketch of Survey dated
January 14. 1985 referred file No. Misc. 61-139 rev. and prepared by Schwebke &
Shiskin and Associates and as shown on that Specific Purpose Survey at Dinner Key
Marina, prepared by Biscayne Engineering; Thence South 32°05'13" East, along the
previously described line, for 237.20 feet; Thence South 12°23'l7" West, departing the
previously described line, for 38.46 feet to a point of intersection with an existing back of
sidewalk and a point of curvature of a circular curve concave to the Northeast, said point
bears North 24° 23'17" East from the center of said curve; Thence along the previously
described back of sidewalk for the following described four (4) courses; 1) Thence
Southeasterly, along the arc of said curve to the left, having a radius of 72.00 feet and a
central angle of 15°38'34" for a distance of 19.66 feet to the point of tangency; 2) Thence
South 81 ° 15' 17" East for 6.47 feet; 3) Thence South 77°37' 14" East for 4.31 to the Point
of BeainninQ of the hereinafter described parcel; 4) Thence continue South 77°37'14"
East for 54.56 to a point of intersection with an existing edge of pavement and to a point
of curvature of a circular curve concave to the Northeast, said point bears North
23°33'59" East from the center of said curve; Thence Southeasterly, along the previously
described edge of pavement and along the arc of said curve to the left, having a radius of
29.25 feet and a central angle of 16°37'02" for a distance of 8.48 feet; Thence North
12°56'52" East for 2.79 feet to a point of intersection with an existing back of sidewalk
and a point on a circular curve concave to the Northwest said point bears North 00°08'09"
West from the center of said curve; Thence Southeasterly, along the previously described
back of sidewalk and along the arc of said curve to the left, having a radius of 43.33 feet
and a central angle of 3°54'56" for a distance of 2.96 feet to a point of intersection with a
line parallel with and 95.00 feet Northwesterly of, as measured at right angles, the
Northwesterly outside face of an existing building; Thence South 13°01'32" West, along
the previously described line for 135.78; Thence South 12°46'52" West for 37.38 feet to a
point of intersection with a line parallel with and 95.00 feet Northwesterly of, as
measured at right angles, the Northwesterly outside face of an existing building; Thence
62
South 13°07'29" West, along the previously described line for 148.75 feet to a point of
intersection with the Southeasterly extension of an existing northerly back of sidewalk;
Thence South 07°43'57"West for 9.81feet; Thence South 49°47'35" West for 2.57feet;
Thence North 46°31'57" West for 10.37 feet to a point on a circular curve concave to the
Northeast; Thence Northwesterly along the arc of said curve to the right, having a radius
of 19.25 feet and a central angle of 57°47'29" for a distance of 19.42 feet to the point of
tangency; Thence North 11°15'32" East for 1.66 feet; Thence North 46°50'25" West for
53.59 feet; Thence North 12°57'52" East for 280.06 feet to the Point of Beainnina.
Containing 19,906 sq. ft. or 0.46 acres more or less.
63
LEGAL DESCRIPTION (PARCEL 4)
(UPLANDS - CHARTHOUSE DRIVE/SHARED DRIVEWAY)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book
34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of
Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more
particularly described as follows:
Commence at the intersection of the City Monument Lines of SW. 27th Avenue with
South Bay Shore Drive as shown on said plat of Dinner Key; Thence along the
Monument Line of said South Bay Shore Drive for the following described two (2)
courses 1) Thence North 36° 17'22" East for 1131.51 feet; 2) Thence North 51 °31'01 "
East, for 33.47 feet; Thence South 76°46'59" East, departing the previously described
line, for 98.06 feet; Thence South 51°31'01" West for 8.28 feet; Thence South 12°58'01"
West for 17.90 feet; Thence North 76°28'34" West for 5.25 feet to a point of intersection
with a line parallel with and 22.22 feet southeasterly of as measured at right angles, .the
southeasterly right-of-way line of South Bay Shore Drive; Thence South 36°09'0l" West,
along the previously described line, for 245.49 feet to a point of intersection with the
northerly right-of-way line of Chart House Drive as shown on the Sketch of Survey dated
January 14. 1985 referred file No. Misc. 61-139 rev. and prepared by Schwebke &
Shiskin and Associates and as shown on that Specific Purpose Survey at Dinner Key
Marina, prepared by Biscayne Engineering; Thence along said line, for the following
described eight (8) courses; 1) Thence South 32°05'13" East for 237.20 feet to the Point
of Beginning of the hereinafter described parcel; 2) Thence South 76°46'59 East for
78.00 feet; 3) Thence North 70°41'48" East for 46.60 feet; 4) Thence South 76°46'59"
East for 215.80 feet; 5) Thence South 54°24'40" East for 60.50 feet; 6) Thence South
76°46'59" East for 93.00 feet; 7) Thence South 31°04'07" East for 70.18 feet; 8) Thence
South 76°03'06" East for 17.58 feet; Thence South 39°08'26" West departing the
previously described line, for 12.87 feet to a point on the northerly edge of pavement of
Chart House Drive said point being on a circular curve concave to the Northeast and said
point bears South 45°04'04" West 'from the center of said curve; Thence along the
northerly edge of pavement of said Chart House Drive for the following described three
(3) courses; 1) Thence Southeasterly along the arc of said curve to the left, having a
radius of 273.78 feet and a central angle of 04°52'06" for a distance of 23.26 feet to a
point; 2) Thence South 29°13'50" West for 21.82 feet to a point on a circular curve
concave to the Northeast and said point bears South 38°44'40" West from the center of
said curve; 3) Thence Northwesterly along the arc of said curve to the Right, having a
radius of 348.97 feet and a central angle of 04°24'23" for a distance of 26.84 feet to a
point; Thence South 12°55'28" West for 13.78 feet to a point of intersection with an
existing back of sidewalk; Thence along the previously described back of sidewalk for
the following described twenty one (21) courses; 1) Thence North 47°44'58" West for
12.22 feet to a point of curvature of a circular curve concave to the Northeast; 2) Thence
Northwesterly, along the arc of said curve to the right, having a radius of 98.00 feet and a
central angle of 16°31'40" for a distance of 28.27 feet to the point of tangency; 3) Thence
North 31°13'18" West for 14.48 feet to a point of curvature of a circular curve concave to
the Southwest; 4) Thence Northwesterly, along the arc of said curve to the left, having a
64
radius of 100.00 feet and a central angle of 11°38'35" for a distance of 20.32 feet to the
point of tangency; 5) Thence North 42°51'53" West for 5.10 feet to a point of curvature
of a circular curve concave to the Southwest; 6) Thence continue Northwesterly, along
the arc of said curve to the left, having a radius of 33.00 feet and a central angle of
33°27'08" for a distance of 19.27 feet to the point of tangency; 7) Thence North
76°19'01" West for 64.42 feet; 8) Thence South 13°57'56" West for 1.47 feet; 9) Thence
North 75°50'29" West for 25.93 feet; 10) Thence North 45°02'51" West for 18.31 feet to
a point of curvature of a circular curve concave to the Southwest; 11) Thence
Northwesterly, along the arc of said curve to the left, having a radius of 64.79 feet and a
central angle of 11 °21'21 " for a distance of 12.84 feet to the point of tangency; 12)
Thence North 56°24'12" West for 5.41 feet to a point of curvature of a circular curve
concave to the Northeast; 13) Thence Northwesterly, along the arc of said curve to the
right, having a radius of 23.50 feet and a central angle of 30°58'59" for a distance of
12.71 feet to the point of tangency; 14) Thence North 25°25'13" West for 6.96 feet to a
point of curvature of a circular curve concave to the South; 15) Thence Northwesterly,
along the arc of said curve to .the left, having a radius of 3.00 feet and a central angle of
51 °39' 10" for a distance , of 2.70 feet to the point of tangency; 16) Thence, North
77°04'23" West for 125.67 feet to a point of curvature of a circular curve concave to the
South; 17) Thence Northwesterly, Westerly and Southwesterly along the arc of said curve
to the left, having a radius of 10.15 feet and a central angle of 14°26'49" for a distance of
2.56 feet to the point of tangency; 18) Thence South 88°28'48" West for 17.55 feet; 19)
Thence North 76°52'13" West for 28.42 feet; 20) Thence South 76°07'58" West for 40.18
feet to a point of curvature of a circular curve concave to the Northwest; 21) Thence
Southwesterly, along the arc of said curve to the right, having a radius of 43.33 feet and a
central angle of 13°43'53" for a distance of 10.38 feet; Thence South 12°56'52" West for
2.79 feet to a point on a circular curve concave to the Northeast and said point bears
South 06°56'57" West from the center of said curve; Thence Northwesterly, along the arc
of said curve to the right, having a radius of 29.25 feet and a central angle of 16°37'02"
for a distance of 8.48 feet to a point; Thence North 77°37'14" West for 58.87 feet to a
point of intersection with an existing back of sidewalk; Thence along the previously
described back of sidewalk for the following described two (2) courses; 1) Thence North
81 ° 15' 17" West for 6.47 feet to a point of curvature of a circular curve concave to the
Northeast; 2) Thence Northwesterly, along the arc of said curve to the right, having a
radius of 72.00 feet and a central angle of 15°38'34" for a distance of 19.66 feet; Thence
North 12°23'17" East for 38.46 feet to the Point of Beginning.
Containing 22,826 sq. ft. or 0.52 acres more or less.
65
EXHIBIT B2
LEGAL DESCRIPTION (PARCEL 6A) ,
(MARINA SUBMERGED LANDS)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book
34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of
Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more
particularly described as follows:
Commence at the Southwest corner, of the Northwest ' , of said Section 22; Thence
South 02°24'44" East, along the Southerly extension of the West line of the NW '/ of said
Section 22, for 436.51 feet; Thence North 86°27'43" East for 75.86 feet to a point of
intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74,
at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HL-
78-C and said'line also being the Northwesterly line of T.I.I.F. Deed No. 19448 to City of
Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade
County, Florida; Thence along said U.S. Pier -Head Bulkhead line, for the following
described six (6 ) courses; 1) Thence South 77°01'17" East, for 669.48 feet to a point
labeled HL-78-B on the previously named plat; 2) Thence North 74°08110" East for
526.25 feet to a point labeled HL-78-A on the previously named plat; 3) Thence North
43°08'20'1 East for 250.00 feet to a point labeled HL-76 on the previously named plat; 4)
Thence North 12°08'10" East for 88.25 feet; Thence along the outside face of an existing
seawall and its Southerly extension for the following described twelve (12 ) courses; 1)
Thence North 45°44'46" West for 16.33 feet; 2) Thence North 46°50'16" West for 262.72
feet to the Point of Beginning of the hereinafter described parcel; '3) Thence North
47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" East for 0.70 feet; 5) Thence
North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'49" East for 100.72 feet; 7)
Thence South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0.64
feet; 9) Thence South 47°14137" East for 41.99 feet; 10) Thence North 61°42'01" East for
21.07 feet; 11) Thence South 30°14'35" East for 2.75 feet; 12) Thence North 62°06'03"
East for 87.88 feet; Thence South 27°53'57" East, departing the previously described
existing seawall, for 60.00 feet; Thence South 62°06'03" West for 118.88 feet; Thence
North 47°14'37" West for 26.50 feet; Thence South 42°45'23" West for 71.49 feet to the
Point of Beginning.
Containing 20,317 sq. ft. or 0.47 acres more or less.
66
EXHIBIT "C"
GROSS REVENUE REPORT
[TO BE INSERTED PRIOR TO EXECUTION]
67
EXHIBIT "D"
POSSESSION DATE CERTIFICATE
This Possession Date Certificate is entered into by Lessor and Lessee pursuant to
Section 5.2 of the Lease (as hereinafter defined). Capitalized terms not defined herein
shall have the meanings provided in the Lease.
1) Definitions. In this certificate the following teiiiis have the
meanings given below:
Lessor: City of Miami
Lessee:
Lease: Lease dated as of between City and Lessee.
Subject Property: As legally described and identified in Exhibit B1 and B2 attached
to the Lease.
2) Confirmation of Possession Date: Lessor and Lessee confiuni that the
Possession Date of the Lease is and the expiration date of
the Initial Tenn is
3) Acceptance of the Subject Property: Lessee accepted the Subject Property on
, 20 with the Rent and any other fees due under the
Lease, including but not limited to the fees described in Section ; commencing
on the same date.
Lessor and Lessee have executed this Possession Date Certificate as of the dates
set forth below:
68
LESSOR:
ATTEST:
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
STATE OF FLORIDA )
COUNTY OF DADE )
CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Johnny Martinez
City Manager
The foregoing instrument was acknowledge before me this day of
, 20, by , who is personally
known to me or who has produced (type of identification) as
identification and who did (did not) take an oath.
Signature of Notary Public
Print Name
Commission No.
69
LESSEE:
a Florida corporation
ATTESTED BY:
By: By:
Name Name
Title Title
Company Name Company Name
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 20 , by , who is personally
known to me or who has produced (type of identification) as
identification and who did (did not) take an oath.
Signature of Notary Public
Print Name
Commission No.
70
WITNESSES:
By:
Name
Title
Company Name
By:
Name
Title
Company Name
STATE OF FLORIDA )
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 20. by , who is personally
known to me or who has produced (type of identification) as
identification and who did (did not) take an oath.
Signature of Notary Public
Print Name
Commission No.
EXHIBIT "E"
PAYMENT AND PERFORMANCE BOND
[TO BE INSERTED PRIOR TO EXECUTION]
72
PERFORMANCE AND PAYMENT BOND
BY THIS BOND, We
as Principal, hereinafter called CONTRACTOR, and , as
Surety, are bound to the City of Miami, Florida, hereinafter called CITY, hereinafter
referred to as OBLIGEE, in the amount of Dollars
($ for the payment whereof, CONTRACTOR and Surety bind
themselves, their heirs, executors, administrators, successors and assigns, jointly and
severally.
WHEREAS, CONTRACTOR has by written agreement entered into a Contract,
Bid/Contract No.: , awarded this
day of , 20 with which Contract Documents are
by reference incorporated herein and madea part hereof, and specifically include
provision for liquidated damages, and other damages identified and for the purposes of
this Bond are hereafter referred to as the "Contract."
THE CONDITION OF THIS BOND is that if CONTRACTOR:
1. Performs the Contract between CONTRACTOR and for
construction of , the Contract being
made a part of this Bond by reference, at the times and in the manner prescribed
in the Contract; and
2. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees,
including appellate proceedings, that CITY sustains as a result of default. by
CONTRACTOR under the Contract; and
3. Promptly makes payments to all claimants, as defined by Florida Statutes
255.05(1) for all labor, materials and supplies used directly or indirectly by
CONTRACTOR in the perfoiniance of the Contract;
THEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT
SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER,
TO THE FOLLOWING CONDITIONS:
3.1 A claimant except a laborer, who is not in privity. with CONTRACTOR, and
who has not received payment for its labor, materials or supplies, shall, within
forty-five (45) days after beginning to furnish labor, materials or supplies for
the prosecution of the work, furnish to CONTRACTOR, a notice that he
intends to look to the bond for protection.
3.2 A claimant . who is not in privity with CONTRACTOR and who has not
received payment for its labor, materials or supplies, shall, within ninety (90)
73
days after performance of the labor or after complete delivery of the materials
or supplies, deliver to CONTRACTOR and to the Surety, written notice of the
performance of the labor or delivery of the materials or supplies and of the
nonpayment.
3.3 No action for the labor, materials or supplies may be instituted against
CONTRACTOR or the Surety unless the notices stated under the preceding
conditions (2.1) and (2.2) have been given.
3.4 Any action under this Bond must be instituted in accordance with the longer
of the applicable Notice and Time Limitations provisions prescribed in
Section 255.05(2) or Section 95.11, Florida Statutes.
4 Performs the guarantee of all work and materials furnished under the Contract
for the time specified in the Contract; then THIS BOND IS VOID.
OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT.
Whenever, CONTRACTOR shall be, and is declared by CITY to be, in
default under the Contract, having performed CITY
obligations there under, the Surety may promptly remedy the default or shall
promptly:
4.1 Complete the Project in accordance with the terms and conditions of the
Contract Documents; or
4.2 Obtain a bid or bids for completing the Project in accordance with the terms
and conditions of the Contract Documents, and upon determination by Surety
of the lowest responsible Bidder, or if elects, upon determination
by and Surety, jointly of the lowest responsible Bidder,
arrange for a contract between such Bidder and and make
available as work progresses (even though there should be a default or a
succession of defaults under the Contract or Contracts of completion arranged
under this paragraph) sufficient funds to pay the cost of completion less the
balance of the Contract Price; but not exceeding, including other costs and
damages for which the Surety may be liable hereunder, the amount set forth in
the first paragraph hereof. The terns "balance of the Contract Price" as used in
this paragraph, shall mean the total amount payable by CITY to
CONTRACTOR under the Contract and any amendments thereto, less the
amount properly paid by to CONTRACTOR.
No right of action shall accrue on this bond to or for the use of any person or
corporation other than CITY named herein.
The Surety hereby waives notice of and agrees that any changes in or under
the Contract Documents and compliance or noncompliance with any
foirrialities connected with the Contract or the changes does not affect
Surety's obligation under this Bond.
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Signed and sealed this day of , 20
WITNESSES/ATTEST: CONTRACTOR:
(Name of Contractor)
By:
Secretary (Signature)
(Print Name and Title)
(CORPORATE SEAL)
IN THE PRESENCE OF: INSURANCE COMPANY
75
By:
(Agent and Attorney -in -Fact)
Address:
(Street)
(Ciiy/State/Zip Code)
Telephone No.:
EXHIBIT "F"
INSURANCE REQUIREMENTS
Lessee, at its sole cost, shall obtain and maintain in full force and effect at all times
throughout the period of this Agreement, the following insurance coverage:
I. Commercial General Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Endorsements Required
$ 1,000,000
$ 2,000,000
City of Miami included as an Additional Insured
Employees included as insured
Contingent Liability (Independent Contractor's $ 1,000,000
Coverage)
Premises/Operations $ 1,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $ 1,000,000
II. Business Automobile Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
Endorsements Required
City of Miami included as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
IV. Employer's Liability.
Limits of Liability
Bodily injury caused by an accident, each accident $1,000,000
Bodily injury caused by disease, each employee $1,000,000.
Bodily injury caused by disease, policy limit $1,000,000
V. Liquor Liability
A. Limits of Liability
Each Occurrence $1,000,000
Aggregate $1,000,000
VI. Excess Liability/Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 1000,000
Aggregate $ 1,000,000
VII. Marine Operators Legal Liability
A. Limits of Liability
Each Occurrence
$ 1,000,000
VIII. "All Risk"
Causes of Loss: special foiiu coverage, including theft, windstorm and flood
coverage, and equipment breakdown coverage.
Valuation: 100% replacement cost on building and Lessee's business
personal property, including improvements, all its equipment, fixtures and
furniture. The Lessee must furnish a Certificate of Insurance for affording
coverage for the building or premises Business Income and Extra Expense
should be included preferably issued on an Actual Loss Sustained Basis.
The City's Department of Risk Management, reserves the right to reasonably
amend the insurance requirements by the issuance of a notice in writing to Lessee.
The Lessee shall provide any other insurance or security reasonably required' by the
City.
The policy or policies of insurance required shall provide for notice of cancellation or
material changes in accordance to policy provisions. Said notice should be delivered to
the City of Miami, Department of Risk Management, 444 SW 2 Avenue, 9th Floor,
Miami, Florida 33130, with copy to City of Miami, Department of Public Facilities, 444
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SW 2 Avenue, 3rd Floor, Miami, Florida 33130, or such other address that may be
designated from time to time.
A current evidence and policy of insurance evidencing the aforesaid required insurance
coverage shall be supplied to Department of Public Facilities of the City at the
commencement of this Agreement and a new evidence and policy shall be supplied at
least twenty (20) days prior to the expiration of each such policy. Insurance policies
required above shall be issued by companies authorized to do business under the laws of
the State, with the following qualifications as to management and financial strength: the
company or companies should be rated "A-" as to management, and no less than class
"V" as to financial strength, in accordance with the latest edition of Best's Key Rating
Guide, or the company or companies holds a valid Florida Certificate of Authority issued
by the State of Florida, Department of Insurance, and is a member of the Florida
Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its
representatives, which indicates less coverage than required, does not constitute a waiver
of Lessee's obligation to fulfill the insurance requirements herein.
In the event Lessee shall fail to procure and place such insurance, the City may, but shall
not be obligated to, procure and place same, in which event the amount of the. premium
paid shall be paid by Lessee to the City as an additional fee upon demand and shall in
each instance be collectible on the first day of the month or any subsequent month
following the date of payment by the City. Lessee's failure to procure insurance shall in
no way release Lessee from its obligations and responsibilities as provided herein.
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INSURANCE REQUIREMENTS CONSTRUCTION PORTION
MARINA/OUTDOOR CASUAL RESTAURANT
I. Commercial General Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
Endorsements Required
$ 1,000,000
$ 2,000,000
$ 1,000,000
$ 1,000,000
City of Miami included as an Additional Insured
Employees included as insured
Independent Contractors Coverage
Contractual Liability
Premises/Operations
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
Endorsements Required
City of Miami included as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
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IV. Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
V. Owner's & Contractor's Protective
A. Limits of Liability
Each Occurrence
Policy Aggregate
VI. Excess Liability/Umbrella Policy
$ 1,000,000
$ 1,000,000
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 2,000,000
Aggregate $ 2,000,000
City of Miami listed as an additional insured
VII. Payment and Performance Bond $ TBD
City of Miami Listed as Obligee
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EXHIBIT "G"
LIST OF EQUIPMENT
[TO BE ADDED UPON LEASE NEGOTIATIONS]
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EXHIBIT "H"
LIST OF EXISTING IMPROVEMENTS
82