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HomeMy WebLinkAboutExhibitvk FIRST AMENDMENT TO GROVE KEY MARINA, LLC REVOCABLE LICENSE AGREEMENT This FIRST AMENDMENT to the Grove Key Marina. LLC, Revocable License Agreement dated February 19, 2013 ("Aareement"), is made and entered into this day of November, 2014 ("Amendment") by and between the CITY OF MIAMI ("City") a municipal corporation of the State of Florida, and Grove Key Marina, inc., a Florida corporation f/k/a Grove Key Marina, LLC., a Florida limited liability company ("Licensee"). RECITALS A. The City and Licensee have entered into the Agreement for the use of the Property located at 3385 Pan American Drive, Miami, FL. B. The City completed a competitive solicitation process and has entered into a lease agreement with the winning proposer but has been unable to deliver possession due to ongoing litigation. C. The Parties agree to remove the Termination Date of December 31, 2014 so this agreement will continue on a month to month basis in order to continue uninterrupted revenue to the City, uninterrupted service to the patrons of the waterfront marina and casual restaurant facility and uninterrupted service to the patrons of the fueling services, until the City provides 60 days written notice to terminate or cancel the Agreement. D. The Parties now wish to amend the Agreement to reflect the recent changes in terms. NOW, THEREFORE, in consideration of the mutual promises of the Parties contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Recitals. The Recitals to this Amendment are true and correct, and are incorporated herein by reference and made a part hereof. 2. Conflicts. In the event of any conflict between this Amendment and the Agreement, the terms of this Amendment shall control. 3. Ratification. Except as may be modified herein, and only to the extent thereof, the Parties ratify and reaffinn all of the terms and conditions of the Agreement. 4. Definitions. Except as may be otherwise provided herein, defined terms utilized but not defined in this Amendment shall have the same meaning ascribed to it in the Agreement. 4.1 "Amendment" shall have the meaning ascribed to it in the title hereof. 5, Amended Sections, The following sections utilized in the Agreement are amended as follows: 5.1 Section 7 of the Agreement, titled Occupancy and Term is deleted in its entirety and replaced with the following: 41 pi zi 5'4 7. Occupancy and Term. A. This Agreement is revocable -at -will, subject to notice requirements below. Unless this Agreement is revoked or terminated as provided in this Agreement, this Agreement shall commence upon the Effective Date and shalt continue on a month -to -month basis, provided Licensee is not in violation of the Agreement, until the revocation of this Agreement by either party upon not less than sixty (60) days written notice. B. Revocation by Licensee. Should Licensee revoke this Agreement, it shall be obligated to provide the City with use of the equipment listed in Exhibit "C" attached hereto and made a part hereof, solely for the present uses for such equipment on the Premises, for period of six (6) months following the date of revocation, at no cost to the City. In such event, the City shall indemnify Licensee, subject to the limitations and financial restrictions and limits provided under section 768.28(5), Florida Statutes, or any such City Iimitations under City Code, or cause to have Licensee indemnified, by any third -party, for any losses or injuries resulting from the City's or a third-party's negligent, grossly negligent or wrongful use of the equipment listed in Exhibit "C". Further, the Licensee shall be named as an additional insured on applicable insurance policies held by any third party operating or using the equipment, subject to any restrictions and guidelines as enumerated above, in the amounts set forth in Paragraph 20 herein. C. Revocation by the City. Should the City revoke this Agreement for cause, the Licensee shalt be obligated to provide the City with the equipment listed in Exhibit "C" as follows: 1. If the equipment is to be used on the premises by the anticipated tenant, Grove Bay Investment Group LLC, or any affiliated or related entity ("Grove Bay"), or the City, it may be used by Grove Bay, or by the City for a period of four (4) months following the date of revocation at no cost to the City. In such case, Grove Bay, or the City shall notify the Licensee of its desire to use the equipment at least 30 days before the effective date of the revocation. Should Grove Bay or the City decide to retain the equipment listed on Exhibit "C" for an additional two (2) months thereafter, it shall notify Licensee in writing at least 30 days prior to the expiration of the four (4) month time period, and it shall compensate Licensee a rental .fee of Four Thousand Five Hundred Dollars ($4,500.00) per month for the two additional months, on the first day of each additional month. 2. Notwithstanding the above, If the equipment is to be used on the premises by a third party, other than Grove Bay Investments LLC, an affiliate of Grove Bay, or by the City, it may be used by a third party under the direction and control of the City for a period of six (6) months following the date of revocation at the cost of $6,500 per month for items designated within Exhibit "C" as the Grove Key Marina Equipment List, and $3,500 per month for items designated within Exhibit "C" as the Scotty's Landing Restaurant Inventory List. In such case, the City shall notify the Licensee of its desire to use the equipment at least 30 days before the effective date of the revocation. Should the City revoke this Agreement without cause, the Licensee shall be authorized to remove the equipment and inventory listed in Exhibit "C", sixty (60) days after receipt of the City's notice of revocation, unless the Licensee has received notice by Grove Bay or the City of Grove Bay's intent -to use the equipment at the premises, in which case it shall be permitted to do so under the teens of paragraph C.1. above. 5.3 Section 13.2 of the agreement, titled Financials, is deleted in its entirety and replaced with the fol lowing: 13.2 Financials Within one hundred twenty (120) days after the end of its fiscal year, Licensee shall deliver or cause to be delivered to the Director a financial statement which includes, among other things, information on the Licensee's business operations for the fiscal year. Such financial statement shall be prepared by an independent certified public accountant (`'CPA") employed at the Licensee's sole cost and expense. In the event Licensee is unable to timely submit the financial statement and provided Licensee has commenced and diligently pursued the completion of the financial statement, Licensee may request from the Director a thirty (30) day extension to complete the financial statement, which request shall not be unreasonably denied, Said CPA shall attest that such statement is prepared in accordance with generally accepted accounting principles and practices and represents the results of operations for the period indicated therein. Notwithstanding the above and during the Term of this Agreement, and for a period expiring one (1) year after the expiration of the term, at its option the City may, at its sole cost and expense, audit Licensee's business affairs, records, program files, sales slips and sales tax records in connection with Licensee's sales on, from or related to the Property for the period covered by any financial statement, report or record furnished to the City. Licensee shall allow the City or auditors of the City to inspect all or any part of the source documents and records for the aforesaid reports. Said inspection shall be conducted at the sole discretion of the City. Records shall be available Monday through Friday, inclusive. between the hours of 8:00 AM and 5:00 PM at the Licensee's address provided in Paragraph 26 of this Agreement or at such other address as Licensee may direct, if notice is required after the termination of this Agreement. Alternatively, at Licensee's option, Licensee may give its source documents and records to the City upon termination of this Agreement. Copies requested by the City shall be furnished to the City at no cost. This Agreement is subject to the audit and inspection rights set forth in Sections 18-100 to 18-102 of the Code. At the City's request, or at Grove Bay's request, - Licensee shall provide the City or Grove Bay with all property documents, financial records, marina operation records and, lists, related to the operation of the Property. Such records shall include all electronic copies, or if no paper record is available, and the record is kept via email, computer or any electronic version shall suffice. This request shall be honored at any time prior to, or after of the expiration of the term described in this First Amendment, to the extent described above. 5.4 Section 23 of the agreement, titled Taxes and Fees is deleted in its entirety and replaced with the following: 23. Taxes and Fees. Licensee shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all charges, fees, taxes, impositions or assessments levied against the Property (collectively Assessments), and/or against personal property of any kind, owned by or placed in, upon or about the Property by Licensee, including, but not limited to, ad valorem taxes, fire fees, if any, and parking surcharges from and after the Effective Date. Provided, however, that ad valorem real property taxes shall be paid in 2013, 2014 and any additional years that this Agreement remains active, by the City using the funds that have been paid by the Licensee pursuant to paragraph 9 above. Licensee shall not be responsible for any amounts due for ad valorem taxes incurred after the revocation or termination of this Agreement beyond their proportionate share of the amount stated on the tax bill as due for the year of revocation or termination, with maximum discount. The amount due by the Licensee for the final year end property taxes shall be the amount due on the tax bill, with maximum discount, divided by 365 for the number of days in the year multiplied by the number of days that the License remained active. The City shall be responsible for personal property taxes on the value of the property listed on Exhibit "C" during any period it is in possession of the same after revocation or termination of this Agreement. The Licensee shall have the right to appeal any Ad Valorem Tax Assessment. In the event Licensee appeals an Assessment, Licensee shall immediately notify the City Manager of its intention to appeal said Assessment and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City Manager, or his designee, or other security reasonably satisfactory to the City Manager, or his designee, in an amount sufficient to pay one hundred percent (100%) of the contested Assessment with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it, to the extent such amounts exceed the funds previously paid under paragraph 9 above. In the event that a refund is due for as a result of a successful appeal or otherwise, the City shall refund any overpayment of Licensee's share within 30 days of receipt of any refund. 5.3 Section 33 of the agreement, titled Surrender of Property is deleted in its entirety and replaced with the following: 33. Surrender of Property. In either event of termination or revocation of this Agreement, Licensee shall peacefully surrender the Property in its current condition, reasonable wear and tear excepted, together with all alterations, equipment and fixtures, installation, additions and improvements which may have been made in or attached on or to the Property. A listing of all equipment and fixtures on the Property belonging to the Licensee is set forth in Exhibit "C". In the event of termination or revocation of this Agreement, the equipment and fixtures set forth in Exhibit "C" shall be removed by Licensee as of the Termination Date unless other arrangements are made with the City and/or the party with whom the City has entered into a new lease, subject to the provisions of Paragraph 7 C above. Upon surrender, Licensee shall turn over to the City any and all security deposits, advance rent or other deposits/monies it has received from any subtenants or customers for services or use of any part of the Property. Further, within fifteen (15) days following the issuance of a notice of revocation pursuant to Paragraph 7, Licensee shall turn over to the City, in an electronic format, copies of any and all vendor, customer and subtenant information, including but not limited to; contracts, lists, files, etc. in addition, upon surrender (except as required by Paragraph 7), Licensee shall promptly remove all its personal property as set forth in Exhibit C, trade fixtures and equipment and Licensee shall repair any damage to the Property caused thereby. Should Licensee fail to repair such damage to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City may cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full, reasonable cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. At City's option, City may require Licensee to restore the Property so that the Property shall be as it was on the Effective Date of this Agreement, reasonable wear and tear excepted. Tenant shall make minor repairs to the wooden piers, so that all the piers are in a safe operable condition. In the event Licensee fails to remove any of its personal property, equipment and/or fixtures from the Property within the 60 days noticed by the revocation of the Agreement, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City sees fit. The, removal obligations set forth herein are subject to the provisions of Paragraph 7, above. 6. Representations. Licensee acknowledges that the representations made herein are material inducements for City's and the Licensee's execution of this Amendment. 7. Agreement Effective. Except as herein amended the terms and conditions of the Agreement, remain in operative force and effect. IN WITNESS WHEREOF, in consideration of the mutual entry into this Amendment, for other good and valuable consideration, and intending to be legally bound, the Parties have executed this Amendment as of the date first above written. A 1'1'EST: CITY OF MIAMI, a municipal corporation of the State of Florida By: Todd B. Hannon City Clerk By Daniel J. Alfonso City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM REQUIREMENTS: AND LEGAL CORRECTNESS: Bv: Bv: Ann -Marie Sharpe, Director Victoria Mendez Department of Risk Management City Attorney By: °'ri t Name GROVE KEY MARINA, INC. Scott Wessel. President Print Name ffr Date