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HomeMy WebLinkAboutPre-LegislationJ-05-721 • RESOLUTION NO. 85-717 A RESOLUTION APPROVING THE AGREEMENT BETWEEN BAYSHORE PROPERTIES, INC. AND THE CITY OF MIAMI FOR THE EXTENSION, COMBINATION AND MODIFICATION OF THE EXISTING TWO LEASE AGREEMENTS RELATED TO THE OPERATION OF MONTY TRAINER'S RESTAURANT, MARINA, AND BOATSIiED FACILITY IN ORDER TO SECURE FINANCING FOR RENOVATION OF THE LEASED PROPERTIES LOCATED ON CITY OWNED WATERFRONT PROPERTY IN THE COCONUT GROVE AREA OF THE CITY OF MIAMI, AND FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT IN SUBSTANTIALLY THE FORM ATTACHED, SUBJECT TO VOTER APPROVAL ON AUGUST 13, 1985, AND IN A FORM ACCEPTABLE TO THE CITY ATTORNEY. WHEREAS, the City of Miami desires redevelopment and utilization of two adjoining parcels of City owned property known as the Kelly Property and the Miley property in general accord with the Dinner Key Master Plan; and WHEREAS, Bayshore Properties, Inc. entered into separate lease agreements for the Kelly Property and for the Miley property; and WHEREAS, Bayshore Properties, Inc. has been operating a restaurant, marina and raw bar on the premises; and WHEREAS, the terms of both lease agreements were originally to expire in the year 2007; and WHEREAS, because of complex litigation which precluded the development and use of the Kelly Property for the period in excess of three years, the City Commission adopted Resolution No. 84-1450 which extended the term of the Kelly Property lease agreement an additional three years to the year 2010; and WHEREAS, Bayshore Properties, Inc. desires to redevelop the two parcels as integrated site to provide additional waterfront commercial and recreational activities for the benefit of the public; and WHEREAS, in order to develop the site in a financially feasible manner, Bayshore Properties, Inc. has requested that the two leases be combined into one lease and that said lease term be extended for an additional 25 year from the year 2010; CITY COMMISSION MELTING OF JUL 18 1555 WHEREAS, the City Charter requires that under certain circumstances, an extension or modification to an existing lease of City owned waterfront property first be approved by a majority of the voters of the City of Miami; and WHEREAS, the City Commission adopted Resolution 85-642 on June 13, 1985, calling and providing for a special municipal election to be held on August 13, 1985, for the purpose of submitting to the qualified electors of the City of Miami for their approval or disapproval of Bayshore Properties, Inc.'s proposal; and WHEREAS, the City Manager recommends that the City Commission approve the agreement, in substantially the form attached, between Bayshore Properties, Inc. and the City of Miami for an extension, combination and modification of the two existing lease agreements related to the operation of Monty Trainer's Restaurant, Marina and Boatshed Facility; and WHEREAS, the City Manager further recommends that the City Commission authorize the execution of said agreement, in substantially the form attached, subject to voter approval at a special municipal election to be held August 13, 1985; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Commission hereby approves the agreement between Bayshore Properties, Inc. and the City of Miami, extending, combining and modifying the two existing lease agreements related to the operation of Monty Trainer's Restaurant, Marina and Boatshed Facility located on City -owned, waterfront property in the Coconut Grove area of the City of Miami. Section 2. The City Manager is hereby authorized to execute said agreement, in substantially the form attached, subject to voter approval at a special municipal election to be held August 13, 1985, and in a form acceptable to the City Attorney. 2 85-717 • PASSED AND ADOPTED this 18th day of July* 1985. Maurice A. Ferre MAURICE A. FERRE* MAYOR APPROVED A /FORM AND CORRECTESS: / 1 85-717 • LEASE AGREEMENT Between THE CITY OF MIAMI and BAYSHORE PROPERTIES, INC. 85-7i7_ LEASE AGREEMENT TABLE OF CONTENTS PREAMBLE 1. DESCRIPTION OF PREMISES 2. TERM 3. USE OF PROPERTY 4. ?TON -DISCRIMINATION 5, PUBLIC ACCESS TO THE WATERFRONT 6. REDEVELOPMENT PLANS 7. PERMITS 8. CONSTRUCTION SURETY BOND 9. LICENSES 10. TAXES 11. PARKING 12. EASEMENT FOR WATER TAXI OR 13. CONSIDERATION 14. PERFORMANCE BOND - CASH DEPOSIT 15. ACCOUNTING 16. BOOKS, RECORDS, ACCOUNTS AND STATEMENTS 17. EXAMINATION BY THE CITY 18. DEFAULT 19. NOTICES 20. ATTORNEY FEES 21. INSURANCE 22. INDEMNIFICATIONS 23. DAMAGE OR LOSS TO COMPANY PROPERTY 24. DESTRUCTION OF PROPERTY 25. BUILDING MAINTENANCE 26. UTILITIES 27. PURE FOOD AND SANITARY LAWS 28. CONFORMITY TO THE LAW 29. DOCKAGE RATES 30. PLEDGE OF LEASEHOLD INTEREST 31. ASSIGNMENT AND SUBLETTING OF PREMISS 32. BINDING ON SUCCESSORS 33. INVENTORY 34. OWNERSHIP OF IMPROVEMENTS 35. EXPIRATION 36. ENTIRE AGREEMENT 37. CAPTIONS 85- 717_ LEASE A EEMENT THIS LEASE AGREEMENT made this day of 1085, between the CITY OF MIAMI, a Municipal corporation of the State of Florida, hereinafter called the "City", and BAYSEORE PROPERTIES, INC., a Florida corporation, with offices in 2460 Utilization of two adjoining parcels of City -owned property known as the Kelley Property and the Miley Property in general accord With the Dinner Key Master Plan; and WHEREAS, the City and Bayshore Properties, Inc. have for the Kelley Property and a separate Lease Acreement dated the entered into a Lease Agreement dated the 30th day of April, 1981 South Bayshore Drive, Miami, Florida 33133, hereinafte,' teferred to as the "Company." day of WHEREAS, WHEREAS, the City Of Miami desires redevelopment and both Lease Agreements were to expire in the , 1977 for the Miley Property; and WITNESSETE: year 2007; and WHEREAS, because of complex litigation which precluded the development and use of the Kelley Property for a period in excess of three years the Commission adopted Resolution No. 84-1450 which extended the terms of the Kelley Property lease agreement an additional three years to the year 2010; and WHEREAS, Bayshore Properties, Inc. desires to redevelop the two parcels as an integrated site to provide additional waterfront commercial and recreational activities for the benefit of the public; and WHEREAS, in order to develop the sites in a financially feasible manner Bayshore Properties, Inc. has requested that the two leases be combined into one lease and said lease terms be extended for an additional 25 years from the year 2010; and WHEREAS, the Charter of the City requires that under certain circumstances an extension or modification to an existing 85-717 .. 0 lease of waterfront property first be approved by a Majority of the voters of the City of Miami; and WHEREAS, the City Commission has determined the requested modification and extension is in the best interest of the public and herein directs that a special municipal election be held; and WHEREAS, on the requested modifications and extension were approved by a majority de the voters; and WHEREAS, the parties agree that upon execution of this Lease Agreement the two lease agreements referred to hereinabove are hereby terminated and the covenants, obligations conditions contained therein are extinguished; and WHEREAS, the City Commission in Resolution No. 85- upon the recommendation of the City Manager, and subject t referendum, approved the herein Lease Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, it is agreed by he parties hereto as follows: 1. DESCRIPTION OF PREMISES: The City hereby leases unto the Company for the purpose and under the conditions hereinafter set forth, the following real property and bay bottom lands (hereinafter referred to as the "Property"), located on Biscayne Bay, City of Miami, Dade County, Florida, as described in Exhibit A attached hereto and made a part hereof: 2. on the day of , 1985, and shall end on the 31st day f May, 2035. 3. USE OF PROPERTY: The Company will davelop, manage, and promote the property to prospective tenants in such a manner that will offer the Essential Services (as hereinafter defined) required and encourage public enjoyment, use, and participation so as to make the project financially feasible to both the Company and the City, as well as to reach the objectives of the Dinner Key Master Plan, and TERM: The term of this Lease Agreement shall commence 85--71'7. The Company covenants and agrees to provide each and every Essential Service as as hereinafter listed, if issuance of a certificate approval. The Essential entire term of this lease periods required in its use of the Property, allowed by law; and subject to the of use and occupancy with City zoning Services will be provided during the (subject to interruption for reasonable if due to a loss of a tenant Essential Services) unless or concessionaire providing and until the Company files a request in writing for permission to discontinue a use or service and the reasons therefor and said permission is granted by the City Manager. The City Manager shall only permit discontinuance of an Essential Service or use if he or she finds that it is no longer essential and that the discontinuance of said Essential Service(s) or use is in the greater interest of the public. Essential Services required in the use of the Property: 1. A restaurant; 2. Retail facilities; A marina, including an ade nt vessels; In addition, the following list of uses may be he Company or the tenant(s) of the Property:: (a) A refreshment stand; (b) Boat rentals; (c) Bait and tackle shop; (d) Convenience food store tenants; (e) Marine supply store, including diving gear; (f) Outboard motor sale and incidental service; (g) Marine clothing sales; (h) Marine furniture sales and incidental manufactur- ing; (i) Boat tours; (j) Fishing area; (k) Sporting goods store; 85-717 . (1) (m) Antique store; Art galleries and book store open public; (h) Bakery; (o) Bicycle sales and repai (p) China and crockery; (q) Confectionery or ice (r) Clothing; (s) Photographic sales; (t) Gift shop; (u) Hobby shop; (v) Jewelry and watch sales, repair and service; (w) Leather goods sales and incidental assembly repair; (x) Lounges; (y) News stand or sundry; (z) Barber shop, beauty parlor, and shoe polishing stand; (aa) Travel and ticket agency; (ab) Sailmaker; (ac) Arts and crafts; (ad) Office for management and rental of -the Property; (ae) Marine fuel pumps; (af) Any related or allied uses to the above if approved by the City Manager which approval may not be unreasonably withheld or delayed. All Marina operations, including rental of all boat slips shall be directly controlled and operated by the Company unless the consent of the City Manager is given in writing to do otherwise on such conditions as are mutually agreeable to the City Manager and the Company. 4. NON-DISCRIMINATION: The Company agrees that there will no discrimination under any circumstances against any person 85-717. Oh account cf race, color, sex, religious creed, ancestry, or national origin desiring to use the Property and the improve - tents. Any such acts will be considered a default subject to the terms and conditions of Paragraph 18, and it is expressly under- stood that upon final determination of such discrimination the City shall ha•:e the right to terminate this Lease Agreement. The Company agrees that minorities shall participate in the develop- ment cf the Project, including construction contracts and jobs as well as in the work force created by the development. Minorities shall have priority in the leasing of all tenant spaces. 5. PUBLIC ACCESS TO THE WATERFRONT: .he public shall be allowed access to the waterfront areas of the Property and all facilities located on the Property shall be available to the public, subject to the right of the Company to establish and enforce rules and regulations to provide for the orderly opera- tion, security, and public safety of said facilities. A copy of all rules and regulations and any changes cccl_ring therein shall be subject to the approval of the City Manager, which approval shall not be unreasonably withheld or delayed. 6. REDEVELOPMENT PLANS: The Company agrees to redevelop the property in substantial accordance with plans and specifi- cations furnished in its public proposal (Exhibit "B") as may be allowed by law. The redevelopment of the docking facilities is anticipated by the Company. If by law dredging and/or land fill is not permitted, this will not substantially alter the remaining overall project, and a boardwalk would still border the bay - front. The developmental plans of the Company must complement the overall design and planning of the Coconut Grove Dinner Key area. Any waiver by the City of the execution of any part of the proposed plans shall not be construed to be a waiver of any other part of such plan. The Company agrees that no structure of any kind now existing on the premises shall be altered or any new structure erected upon the Property unless the plans therefor Shall have been approved by the City Manager, which approval 85-71'7 . Shall not be unreasonably withheld cr delayed. Construction Shall commence within eighteen (18) months of the date of execu- tion of said Agreement and shall be completed within five (5) years from this date unless permits or other delays are caused by the City, and in such case, this eighteen (18) month and/or five (5) year period shall be extended by the same time period (the "delay period"). Composite Exhibit "5" attached hereto describes the plans and specifications furnished in the Company's proposal. It is agreed that the improvements to the Property, as described in Paragraph 1, and to be made by the Company, will require the expenditure of not less than Two Million Six Hundred Thousand Dollars ($2,600,000.00) (the "Improvement Expenditure"). This sum does not include the expenditure for improvements to a parking site or sites as described in Paragraph 11, said sum, which is not to he less than Four Hundred Thousand ($400,000.00) Dollars (the "Parking Sites Expenditure"), which Parking Sites Expenditure is to be in addition to the Improvement Expenditure. The Company will submit copies of paid invoices corresponding to the Improvement Expenditure and the Parking Sites Expenditure in accordance with Paragraph 15. The City agrees, within ninety (90) days after the exe- cution of this lease, to provide adequate water and sanitary sewage lines to the property line in accordance with normal City services. The Company shall have the responsibility of ensuring and providing for adequate electrical power, gas, and telephone service to the property. The Company shall provide the required ornamental landscaping and lighting, all in accordance with the redevelopment plan. The boardwalk, as proposed in the Company's proposal document (Composite Exhibit "P"), shall be constructed in accor- dance with the design standards set forth in the Dinner Key Master Plan and shall be constructed by the Company. The public shall have free and• unobstructed use of the boardwalk at all times. Said boardwalk shall be completed prior to the issuance of a certificate of occupancy for the proposed project. 85-717 7, PERMITS: The Cornpany agrees to have final plans pre pared which will comply with all pertinent provisions of the South Florida Building Code and the ordinances, rules and regula- tions of Dade County and the City of Miami. The Company agrees that no structure of any kind now existing on the Property shall be altered or a new structure erected upon the Property unless the plans for said construction have been approved by the City Manager, which approval shall not be unreasonably withheld or delayed. As a condition to this Lease the Company shall obtain at its sole cost and expense all permits, approvals, and related documents from any and all Federal, State, and local governments and agencies requiring them for the construction, or construction of any new docking or upland Company facilities. The Company shall apply for and obtain all permits or approvals necessary to commence ccnstructisn, dredging, and/or filling on the Property. 8. CONSTRUCTION SECURITY BOND: The Company shall, prior to the commencement of construction or the awarding of any contract for construction on the Property by the Company or any agent of the Company, furnish the City with a Statutory Payment and Per- formance Bond (the "Construction Bond"), in the amount of Seven Hundred Fifty Thousand ($750,000.00) Dollars, naming the City as the owner and the Company as the principal. The conditions of the Construction Bond shall be to insure that the Company will: (1) promptly make payment to all claimants, as defined in Section 255.05 (1) Florida Statutes, supplying the principal with labor, materials, or supplies, used directly or indirectly by the prin- cipal in the prosecution of the work provided for in the Agree- ment; (2) pay the owner all losses, damages, expenses, costs, and attorney's fees, including appellate proceedings, that the owner sustains because of a default by the principal under the Agree- ment, and; (3) performs the guarantee of all works and materials furnished under the Agreement for the time specified in the Agreement. The Construction Bond may be terminated, with the written approval of the City Manager of the City, at such time as .7- 85--717_ . the proposed construction project is completed and fully opera- tional and open to the public; and satisfactory evidence is pro- vided by the Company to the City Manager that all requirements of the Construction Bond have been satisfactorily concluded. The form of the Construction Bond shall be as approved by the City Finance Department, Risk Management Division, in accordance with the requirements of Chapter 255, Florida Statutes, and Miami City Code § 18.57. 9. LICENSES: The Company agrees to obtain and pay for all required licenses necessary for the proposed operation and con- duct of its business, and agrees to comply with all laws govern- ing the responsibility of an employer with respect to persons employed by the Company. It will be the responsibility of the Company to obtain the necessary liquor licenses to permit the sale of alccholic beverages as permitted by this Agreement. The Company may sell all alcoholic beverages incidental to the restaurant but only beer and wine sales will be permitted from the refreshment stands and convenience food store. All alcoholic beverages sold in accordance with the provisions of this Agree- ment shall be sold in accordance with applicable State Beverage Regulations. 10. TAXES: During the term hereof, the Company covenants and agrees to pay all taxes of whatsoever nature lawfully levied or assessed against the Property and improvements, property, sales, rents or operations thereon, including, but not limited to, ad valorem taxes. Payment thereof shall commence with and shall include taxes assessed for the current year. The Company further covenants and agrees to pay all of the said taxes, if any, lawfully assessed, on such dates as they become due and payable. The failure of the Company to pay the taxes as afore- said shall constitute grounds for the immediate cancellation of this Lease Agreement by the City, subject to the terms and condi- tions of Paragraph 18. 11. PARKING: The Company shall meet the lawful off-street parking requirements for the use of the Property. The City shall provide one or more sites for said off-street parking. The 85.717 . tompany will develop and construct the parking on such sites at its expense and according to the standard specifications of the City. All parking so developed shall be used in common with the public but shall count for required off-street parking of COMpany. The Company shall be allowed by the City to use the area shown on Exhibit "C" to meet its required parking until such time as the City Commission requires the Company t77 vacate because of imminent construction activity on the area as a result of the City Commission's approval of other development for the area or if required to do so by judicial action. :n either case the City Commission shall provide the required parking in the Dinner Key area. The Company shall provide a tram service during normal hours of operation from the parking sites to the subject Property, which service shall run a minimum of twelve (12) times daily from the parking sites to the Property. The tram service shall be provided at the sole cost and expense of the Company, its agents or assigns. The Company shall indemnify the City in the operation of said tram service as provided in paragraph 23 and shall provide the City with adequate insurance coverage, which is usual and customary to cover an exposure of this type for the tram service, subject to the approval of the Department of Finance, Risk Management Division. 12. EASEMENT FOR WATER TAXI OR TRAM STATION: In the event the City decides to provide or grant a franchise to provide a tram or people mover system for the Dinner Key area, the Company agrees to permit the City to establish a station and roadway for access for said system on the Property so long as the same does not unreasonably interfere with the operations of the Company or its tenants under this lease. Any costs in adjusting the site to accommodate said system shall be borne by the City or its fran- chisee as the case may be. Location of said facilities as described above are subject to approval by the Company which the Company shall not unreasonably withhold or delay. 13. CONSIDERATION: T. Minimum Annual Guaranteed Rental: As considera0.on. for the lease of the said property, the Company shall pay to the 85—'717 dity the greater of: (1) the Minimum Annual Guaranteed Rental as hereinafter defined; or (2) Percentaae P.ental as hereinafter defined. The Minimum Annual Guaranteed Rental shall be payable as follows: (a) beginning upon the execution of this Agreement, Two Hundred Forty -Seven Thousand Five Hundred Eighty -Si:: Dollars ($247,586.00) per annum; (b) beginning twelve (12) months after the execution of this Agreement, Two Hundred Fifty -Seven Thousand Five Hundred Eighty -Six Dollars ($257,586.00) per annum; and (c) beginning twenty-four (24) months after the execution of this Agreement Thousand annum. and through the year 2010, Two Hundred Seventy -Seven Five Hundred Eighty -Six Dollars ($277,586.00) The Minimum Annual Guaranteed Rental shall become, per for the remainder of this Agreement, the average of the immediately preceding three (3) years rental payments to the City. The Company shall pay on a monthly basis one -twelfth (1/12th) of the Minimum Annual Guaranteed Rental on the first day of each month in advance. For permanent capital improvements over Three Million Dollars ($3,000,000.00), a credit towards rental payments, not to exceed Three Hundred Thousand Dollars ($300,000.00) in any one (1) year, shall be given, dollar for dollar, amortized over the first ten (10) years following completion of construction. II. Percentaae Rental: As an alternative amount of consideration in lieu of the Minimum Annual Guaranteed Rental, the Company shall pay the Percentage Rental based on the follow- ing formulae throughout the entire term of this agreement: (a) Eight (8%) per cent on all gross receipts up to One Million ($1,000,000.00) Dollars in gross receipts per lease year. (b) Ten (101) per cent on all gross receipts in excess of One Million ($1,000,000.00) Dollars per lease year. Percentage Rental shall be determined annually and shall be paid monthly, if applicable within twenty-five (25) days from the end of the preceding month. Adjust- ments to the rental shall be made at the end of the SS-'717. . lease year based upon the annual percentage rent set forth herein. The term "gross sales" as used herein shall be consi- deted synonymous and interchangeable with the term "gross feceipts" and shall be construed to include all income, whether collected or accrued, from all business conducted on the Property by Company, including but not limited to, the rental cf space, the sale of focd and beverage, goods and services, or from any source Whatsoever, but excluding receipts from dockage and gas sales, Gross sales and/or gross receipts shall only include revenues and/or percentages of revenues collected or accrued by the Company, and shall be computed on the basis of gross receipts by the Company only. (It shall not be computed on the basis of gross receipts of tenants, lessees, or sublessees of the Company (fuel sales excepted):...:ever, any sales taxes i.nposed by law which are separately stated to and and paid by the purchaser or user, and are directly payable to a taxing authority by the Company, shall be excluded from gross receipts. Gross sales and/or gross receipts shall also include any revenues, whether accrued or collected, attributable to any direct or indirect participation by the Company or any of its officers or principals in the business or enterprise of another entity, person or tenant of the property besides the Company per se, to the extent that such participation entitles Company, its officers or principals to receive remuneration; and further provided that such other business or enterprise is done on or "in connection with" the Property provided, however, that the term "in connection with" shall not include revenues which result merely from the physical adjacency of location or merely from joint promotional effort and advertising. The Company shall include in every remittance to the City, of the monthly consideration as required, the applicable amount of State of Florida sales and use tax. The Company covenants and agrees that goods and services offered and sold on the subject property by the Company, its 85--717 -11- tenants, lessee or sublessee, shall be regularly audited, during normal business hours and in a Manner in accordance with Para- graph 16, by the City, and that the full amount of gross receipts attributable to the subject property shall not in any way be diverted t7, any other business or enterprise. For permanent capital improvements over Three Million Dollars (S3,000,000.00), a credit tt'war s rental payments, not tc exceed :h,se Hundred Thousand Dollars (S300,000.00) in any one (1) year, shah be given, dollar for dollar, ancrticed over the first ten (10) years following completion of construction. Ili. Special Percentage Rental cn Fuel Sales and D^eky- Ace: In addition, as separate and additional consideration due the City, not included in the hereinabove Percentage Rental, or the Minimum Annual Guaranteed Rental, the Company shall also pay to the City cn the first day of each month, throughout the term of this agreement the following: Two and a half: cents ($0.025) per gallon of fuel sold by the Company or its subtenant from the Property in the prior month, and fifteen (15%) per cent of gross receipts which are collected by the Company from dockage rental and dry storage of boats at the Property in the prior month. 4. PERFORMANCE BONDS: The Company shall post a performance bond in the amount of Ten Thousand ($10 000.00) Dollars with the City within thirty (30) consecutive calendar days after the exe- cution of this Agreement to stand as security for the performance of the Company's obligations hereunder. Said performance bond shall be posted in cash or issued by a surety company authorized to do business in the State of Florida and shall be refundable at the termination of this Agreement if all terms and conditions of this Agreement have been satisfied. If the performance bond is on an annual coverage basis, certified evidence of renewal for each succeeding year shall be submitted to the Department of Finance, Risk Management Division, thirty (30) days prior to the termination date of the existing performance bond. 8S-'717 . • 154 ACCOUNTING: The Company shall report all "Gross PeCeipts" or Gross Sales on cr before the 25th day of each month beginning at the completion of the first month after the execu- tion of this Lease. Each and every month thereafter, reports Shall be submitted to Property and Lease Management Division, Department of Finance of the City, or at such other place ot places as may be designated hereafter by the City. The Company shall provide a statement in certificate form signed by a duly authorized officer of the Company, setting forth in such detail as it might be necessary or consdered necessary by the Director tf Finance of the City to determine the Gross Sales per month fcr the Property. An additional detailed report of Gross Sales for the year in conjunction with the payment of the Annual Percentage Rent shall be submitted at the end of the lease yea: for the purpose of computinTthe Annual Percentage Rental. The Company shall submit quarterly reports commencing within thirty (30) days after the first quarter of the Lease Agreement, and continuing during the effective period thereof, and each and every quarter thereafter, identifying expenditures on the part of the Company for making improvements to the Property, equipment purchases and improvements and expenditures related to improving the facility's amenities and services of the Property. Such reports shall continue during the term of this lease, in order to provide proper accounting in accordance with Paragraphs 15 and 19 of this lease. 16. BOOKS, RECORDS, ACCOUNTS AND STATEMENTS: The Company shall keep true, accurate, and complete books, records, and accounts of all sales, rentals, and business being transacted upon the Property. Further, the Company shall, upon demand make available all books and records, leases, agreements, reports and financial statements in any way pertaining to the Property to authorized representatives of the Division of Internal Audit, or such other authorized representative as the City Manager of the City shall designate at the Property during normal business hours, The Internal Auditing Department of the City shall be furnished any and all records of the Company necessary to make a -13- 85--717 foil and complete audit of the books and operations of the faci- lities described in this Lease Agreement. In addition the Company will provide the City with oopies of all sales tax records from any and all business con= ducted cn the Property. 17. EXAMINATION OF THE PREMISES BY T':E CITY: The Company agrees to permit the City, by its City Manager's designated per- sonnel, to enter upon the Property at any time for any purpose the City Manager of the City deems necessary or incidental to or connected with the performance of City's duties and obligations hereunder or in the exercise of its rights or functions. 18. DEFAULT: If the Company abandons vacates the Property prior to the expiration of the term hereof, or If the Company fails to make the rental payments as set forth herein and said payment is not „jade within thirty (30) days after written notice is given to the Company, or If the Company fails to commence construction or complete same in accordance with the requirements of Paragraph 6 this Agreement, or If the Company fails to perform in accordance with any f the other terms and conditions herein contained, and such default is not cured within thirty (30) days after written notice is given to the Company or if the nature of the default is such that the Company cannot reasonably cure same within said period and the Company fails to take diligent measures to commence and pursue the cure thereof, Then the Company shall be in default and the City may re-enter the Property and terminate this lease in any manner then permitted or provided by law. At such time, all improvements erected on the Property shall revert to the City. In addition to the right to re-enter and terminate the lease, the City, in case of a breach in the payment of rent or in case of the breach of any other of the Company's obligations hereunder, shall have all other remedies, including but not limited to the right to operate the facility and collect rents directly from tenants or other remedies afforded by the laws of 85-'717 . r the State of Florida, including but not limited to, the right to Sue for and collect rent, and to bring distress proceedings. Said remedies may be pursued concurrently or consecutively and the resort to one shall not be considered an election. 19. NOTICES: All notices and rental payments shall be sent to the parties at the following addresses: TO THE CITY: To THE COMPANY: The City Manager The City of Miami, Florida P.O. Box 330708 Miami, Florida 33133 Bayshore Properties, inc. Monty Trainer, President 2562 South Bayshore Drive Miami, Florida 33133 he City or the Company may change such mailing addresses at any time upon giving the other party written notice. All notices under this Lease Agreement must be in writing and shall be deemed to be served when delivered to the address of the addressee. 20. ATTORNEYS' FEES: In the event that it is deemed neces sary for either party to file a lawsuit in the appropriate court of law in order to enforce any of the terms or provisions of this Lease Agreement, then the prevailing party shall be entitled to reasonable attorneys' fees. 21. INSURANCE: The Company shall maintain during the term of this Agreement the following insurance subject to the approval of Risk Management Division, Department of Finance of the City: (a) Public Liability, including Products Liability, Insurance in the amounts of not less than $1,000,000 per occur- rence for death or bodily injury and not less than $50,000 per occurrence for property damage. (b) A standard Fire, Lightning, and Windstorm Insurance policy on the premises and all furniture, fixtures, equipment, and improvements, including the perils of fire, extended cove- rage, and other perils, for the cash value thereof. (c) Automobile Liability Insurance covering all owned, nonowned, and hired vehicles in amounts of not less than $100,000 per accident and $300,000 per occurrence of bodily injury and $10,000 property damage. 85 L7,. (d) Liability insurance covering the operation oE the tram service between the designated parking sites and the Property which is considered adequate at the time of the incep- tiOn of the operation of the service and meets the approval of the Department of Finance, Risk Management Division. (e) The City shall be named as an additional insured under the policies of insurance as required by this Agreement. (f) The City shall be given at least thirty (30) days advance written notice of cancellation of said polices or any material modifications thereof. (g) Certificates of insurance shall be filed with the rinance Department, Risk Management Division, of the City -Of Miami. (h) The insurance coverage required shall -,include -those classifications as listed in standard liability insurance manuals which most nea:ly reflect the operations of the Company. (i) All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must be rated at least "A" as to management and Class "X" as to financial strength, all in accordance with A. M Best's Key'. Rating Guide, latest edition. (j) The City reserves the right to amend the insurance requirements according to usual and customary standards in the Insurance Industry as circumstances dictate in order to protect the interest of the City in this Lease Agreement. (k) The Company shall furnish certificates of insurance to the City prior to the commencement of operations, which certi- ficates shall clearly indicate the Company has obtained insurance in the type, amount, and classifications as required for strict compliance with this covenant and shall be subject to the approval of the Department of Finance, Risk Management Division. (1) The policy shall be endorsed as follows: "It is agreed that in the event of any claim or suit against the insured for damages covered by this policy, the insurance company will not deny liability by the use of a defense based on governmental immunity". -16- 85-717.. 22. INDEMNIFICATION: The Company covenants and agrees that shall indemnify and save harmless the City from and against any and all claims, suits, actions, damages or causes of action arisino during the term of this Lease Agreement for any personal injury, by reason of or as a result cf the Company's occupancy thereof, and from and against any orders, judgments or decrees, which may be entered thereon, and from and against all costs, attorneys' fees, expenses, and liabilities incurred in and about the defense of such claim and the investigation thereof; pro- vided, however, that before the Company shall become liable for said cost, the Company shall be given notice in writing that the same are about to be incurred and shall have the option itself to make the necessary investigation and employ counsel of the Company's selection for the necessary defense of any claims. The City may, at its option, retain its own counsel at its sole cost and expense in addition to the provisions hereinabove set forth. 23. DAMAGE OR LOSS TO COMPANY'S PROPERTY: The Company assumes all risk of damage or loss to the Property for any cause whatsoever, which shall include, but not be restricted to, any damage or loss that may occur to merchandise, goods, equipment, or other property covered under the Lease Agreement, if lost, damaged or destroyed by fire, theft, rain, water or leaking of any pipes or waste water in or about said Property or from hur- ricane or any act of God, or any act of negligence of any user of the facilities, or occupants of the Property or any person whom- soever. 24. DESTRUCTION OF PROPERTY: The Company agrees to keep all improvements on the Property insured to the full insurable value thereof and shall provide to the City a standard fire insurance policy insuring against loss or destruction for all of the perils of fire, extended coverage and malicious vandalism. Subject to the rights of the Company's first mortgage lender, in the event of loss or destruction due to any cause whatsoever, all insurance monies shall be payable to the City, to be held by it until the Company furnishes a bond to the City for construction or repair, the Case may be, of like tenor and effect and under the same -17- 85-717_ _ Conditions as the bond hereinbefore required in the case at the initial redevelopment. Upon the furnishing of such bond, the City shall promptly pay to the Company all insurance proceeds. It is provided, however, that should the cost of repairs not exceed the sum of $25,000 then the City shall pay over to the Company, without the necessity of any bond, the amount of insur- ance policies thereafter collected by the City. The Company shall furnish to the City duplicate originals of all insurance policies required under this Lease Agreement. The insurance policy required hereunder shall be approved by the City as to form, amount, and insurer or insurers and shall provide that all proceeds shall be payable to the City as provided in the ;ease Agreement. All construction and repairs shall be effected as promptly as circumstances permit. Plans for reconstruction or repairs shall be submitted to and approved by the City Manager, and permits inspection fees shall be procured and paid for by therefor and the Company. If within one hundred eighty (180) days after any such destruction or damage, the Company fails to furnish said plans and bond to the City, then all insurance monies collected by the City shall be and become the property of the City and this Lease Agreement shall be cancelled and terminated automatically. 25. BUILDING MAINTENANCE: The Company accepts the building`, and grounds in their present condition and without any warranty by the City as to their condition. The Company, at its sole cost and expense, shall maintain the grounds and the interior and exterior of the buildings. The Company agrees to provide ade- quate janitorial services. The Company further agrees to main- tain the buildings and Property in a condition of proper clean- liness, orderliness, and state of attractive appearance at all times. If the buildings and Property are not kept reasonably clean and attractive in appearance, the Ccmpany shall be so advised. Corrective action shall be taken by the Company within seven (7) days time. In the event such action is not taken, the City shall have the right to make repairs or cause the Property -18- 85'il' td be cleaned and the Company shall then be required to reimburse the City within thirty (30) days fcr said cost and charges. 26. UTILITIES: The Company shall pay for all utilities Consumed on the Property as well as connection charges thereof and waste collection fees, if any. The Company further agrees to place all utilities required by its use of the leased Property underground. 27. PURE FOOD AND SANITARY LAWS: The Company shall abide by all pure food and sanitary laws and the employees involved in the handling or sale of any food or beverage shall all possess health certificates. All food and beverage sold shall be of the highest grade and quality standards as established by law. 28. CONFORMITY TO THE LAW: The Company covenants to comply with all laws, ordinances, regulations, deed restrictions and orders of Federal, State, County and Municipal authorities pertaining to the Property and operation thereon. 29. DOCKAGE RATES: The Company agrees to maintain the dock rates at a level not to exceed those charged by comparable marinas in the Dinner Key Area providing like services. 30. PLEDGE OF LEASEHOLD INTEREST: The Company may pledge his leasehold interest as security for industrial development bonds provided the quality of the assignee or pledge is approved by the City Manager which approval may not be unreasonably withheld. This section shall under no circumstances be construed to require the City to participate in the financing or the proposed redevelopment improvements. The City shall fully cooperate with the Company in respect to the reasonable require- ments of Company's lender. 31. ASSIGNMENT AND SUBLETTING OF PREMISES OR TRANSFER OF STOCK: The Company shall not at any time during the term of this Lease Agreement assign this Lease Agreement or any portion or part thereof, except and by virtue of written authorization granted by the City Manager of the City. Said authorization Shall not be unreasonably withheld or delayed. This clause shall ncc apply to sub -leasing space tc tenants of the Company. 85-'717._ The Company is a corporation authorized to do business in the State of Florida, and agrees that it will not transfer any tick in the corporation or change managers subsequent to enter- ing into this Agreement or during the term of this Agreement Until such transfer or change is approved by the City Manager of the City, which approval shall not be unreasonably withheld. 32. B:ND:NG ON SCCCESSORS: The terms and provisions of the Lease Agreement shall, subject to the provisions of Paragraphs 17 and 23, be binding and inure to the benefit of the successors and assigns respectively of the City and the Company. 33. INVENTORY: All fixtures, furnishings, furniture, ar.d equipment, if any, in or upon the Property and their condition will be inventoried before occupancy by the Company. The Company will maintain fixtures, furnishings, furniture and equipment, if any, in good and operable condition during the term of this Agreement at its sole cost ar.d expense, and that said Property shall be deemed in its sole custody and care. In the event any of the aforementioned items are lost, stolen, or damaged, they shall be replaced or repaired at the cost and expense of the Company, ordinary wear and tear excepted, during the term of this Agreement. The Company may acquire any additional fixtures, furnishings, furniture, or equipment that the Company deems necessary for the operation of the Property at the Company's own expense, consistent with the purposes for which the Property is leased. 34. OWNERSHIP OF IMPROVEMENTS: All improvements, furnish— ings and equipment constructed or installed on the Property by the Company shall be personal property and Company shall have legal title thereto during the term of this Lease. Upon the expiration or termination of this Lease, title to all permanent improvements constructed on the premises shall vest in the City. Title to all supplies, furnishings, inventories, removable fixtures and removable equipment and other personal property shall remain vested with the Company and the Company shall have the right to remove such items from the premises unless the Company is in default hereunder. 85-'-'717 15. EXPIRATION: At the expiration of the term of this Lease Agreement or at its prior termination, all permanent improvements placed on the property by the Company shall be and become the property of the City and the Company shall quietly and peaceably deliver the same to the City. 36. ENTIRE AGREEMENT: A waiver of the breach of any of the covenants of this Lease Agreement shall not be c:;"-'__,.,9 to be a Giver of any other covenant or any succeeding breach. The previsions of this Lease Agreement contain the entire understanding of the parties hereto concerning the subject matter hereof. No modifications, release, discharge or waiver of of the provisions hereof shall be of any force and effect unless signed in writing by the City Manager of the City. 37. CAPTIONS: The captions contained in this Lease Agree- ment are inserted only as a :natter of convenience and for reference and in no way define, limit or prescribe the scope of this Lease Agreement or the intent of any provisions thereof. IN WITNESS WHEREOF, the parties herein have executed this Agreement the day and year first above written. ATTEST: CITY OF MIAMI, FLORIDA, a municipal corporation By: CITY CLERK CITY MANAGER BAYSHORE PROPERTIES, INC., a Florida corporation By: ATTEST: SECRETARY PRESIDENT (SEAL) 85-'717. _ APPROVED A$ TO FORM AND CORA CTNE LUCIA A. DOUGHERTY CITY ATTORNEY 05-143-053/5* 85-717_ -fik -I- 41 DESCRIPTION OF PREMISES - EXHIBIT A The "CITY" does hereby lease to the "COMPANY" for the purposes and under the conditions hereinafter set forth, the following described property known, and designated as: Lots 20, 21, 22 and 23 (less the southwesterly 25 feet of said Lot 23) Block 43, of SAmUEL RHODES PLAT OF NEW BISCAYNE, according to the plat thereof, as recorded in Plat Book B of Page 16, of the Public Records of Dade County, Florida. Also included in this lease are the following described Say Bottom lands in Biscayne Bay, Dade County, Florida, to-witt Commence at the northerly corner of Lot 20, Block 43, of the Amended Plat of NEW BISCAYNE as recorded in Plat Book B, at Page 16, of the Public Records of Dade County, Florida; thence run south 40° 23' 32" east along the north- easterly line of said Lot 20 and its south- easterly prolongation thereof for a distance of 691.46 feet, more or less, to a point of intersection with the Dade County Bulkhead Line (U.S. Harbor Line) as recorded in Plat Book 74, at Page 35, of the Public Records of Dade County, Florida, said point being the Point of Beginning of the hereinafter described parcel of submerged land; thence continued south 40° 23' 32" east along the southeasterly prolongation of the north- easterly line of said Lot 20 for a distance of 270.00 feet to a point; thence run south 49°'33' 29" west for a distance of 167.00 feet, more or less, to a point of intersection with the southeasterly prolongation of the southwesterly line of the northeasterly 1/2 of Lot 23, Block 43, of said Amended Plat of New Biscayne; thence run north 40° 23' 32" west along the southeasterly prolongation of the southwesterly line of the northeasterly 1/2 of said Lot 23 for a distance of 183.78 feet, more or less, to a point of intersection with said Dade County Bulkhead Line; thence run north 21° 41' 51" east along said Dade County Bulkhead line (U.S. Harbor Line) for a dis- tance of 184.49 feet, more or less, to U.S. Harbor Line Point No. 74; thence run north 49° 33' 29" east along said Dade County Bulkhead Line for a distance of 3.97 feet, more or less, to the Point of Beginning; said parcel contains 0.8738 acres, more cr less; and Lot 24 and the SW'ly 25 feet of Lot 23, Block 43, RHODES PLAT OF NEW BISCAYNE, according to the plat thereof, recorded in Plat Bock "B" at Page 16, of the Public Records of Dade County, Florida, less, however, a strip of land 4 feet in width off of the NW'ly side thereof hereto- fore dedicated to the City of Miami, as des- cribed in Clerk's File 67R-11237; and A Parcel of submerged land in Biscayne Bay Sec. 22-54-41 described as Lying SE'iy of and abutting Lot 24 and SW'ly of of 23 (less N'ly 4') of Block 43 of SAMUEL RHODES AMENDED -23- 85--71'7,_ MAP OF NEW BISCAYNE, PB B/16, more particu- larly described as follows: Begin at SW'ly corner of said Lot 23, said ccrner being, in the mean high water line of Biscayne Bay; thence S 40°23'32" E along SE'ly extension of SW'ly line of Lot 24, a distance of 538.57' to a point in the Bulkhead Line established for this area shown on mac in PB 74 '3 (Sheet 5) ; thence N 21°41'S1" W along said Bulkhead Line a distance of 84.87 feet to the intersection with SE'ly ; of Lot 23; thence N 40°23'32" W along said SW'ly extension a distance of 497.47 feet to the mean high .rater line _ boundary ,f said SW'ly d of Lot 23 and of said Lot 24, a� distance cf 75.00 feet more or less to the POB as described in Clerk's File 68R- 115129, together with improvements thereon, any and all rights appurtenant thereto, and together with any and all riparian rights. A location map cf the area to be leased by the "C TY" to the "COMPANY" is attached hereto and made a part hereof as Exhibit "A-1" 4 85-'717 .. 85-71' • NA, A T Wollbery, Alvarez &Taracido • En; m•ar r Planning / InterlOr Design S47.*: SO.•""' os!ard E 511* 100 s -ni F BAYSHORE BOAT SHED PARK & PARKING EAr.lui,_ 6 0 (I) 1 (Li1 is ` - 0: r`"4 ...7 ,,,',� ` .yam — /'y" �� Cq r w1 rt \ Air, — \\ram ,. —'9 / Y 1: k � .i'� \r i 'Y • • 't r. !. _ i'--'-N A jr‘f.l.,. 1,,,:::;:,:i ' i•!'r•-._.,..L1 .7,!(;', i \---:-...";:t' : 1.a, r ''' ;;•,)(;), •,....1.2.1'‘,.„1-:1,--1•:;....;7::. 1.; \'' \,4:i1"; i j •'7.-� ���;' •s�'� r,'.''it IS~c:.. 'ti3_ .;+ 't — ,,4- —t j, • i. r <'2-"•iR '2 --., �i;. •I• =� S .v,�ys. �ti`,E; l�.^JJ !v� \tiit ' r�'J -1�•ti 1'j / O' ell.:;./ lf. , t ,t'r.1,- l,,I.,_._,' {l , r - , j Y4 I. �r.LY W A i" '.lo:'C _r7, A!..arez&Taracido t.c•. .:'.•• E•p.-ur.n� , Or Of Design M t •-• • F E:.YSHOFE BOAT SHED PARK & PARKING CD JO 85-11/.. ['I' A T V:cllberg, Alvarez &Taracido ���•.uct.,� (.;,,wing , Airnrvnq i Int.•IO D+uon NO* •Y a 5,01 • 10G V.11, f BAYSHORE BOAT SHED PARK & PARKING 270 1,'3``_ CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM 40 Honorable Mayor and Members of the City Commission Sergio Per• a FROM: City Manager DATE SUBJECT I V.E FILE: Bayshore Properties, Inc. Agreement R EFERENCES ` or City Commission Meeting of July 13, 19? ENCLOSURES nesoiution, Agreement It is recommended that the City Commission adopt the attached Resolution approving the Agreement between Bayshore Properties, Inc. and the City of Miami for an extension, tomb_^,a tion ant modifica i:n of :re t'.vo existing i.ease agreements related to the operation of Monty Trainer's Restaurant, Marina, and Boatshed Facility, and further authorizing. the City Manager to execute said agreement in substantially the form attached subject to voter approval. Bayshore Properties, Inc. operates Monty Trainer's Restaurant, Marina and Boatshed Facility on two parcels of City -owned, waterfront property under two existing lease agreement with the City. In order to develop the properties known as the Kelly Property and the Miley Property in a financially feasible manner, Bayshore Properties, Inc. has requested that the two leases be combined into one lease and that said lease term be extended for an additional 25 years from the year 2010. The City Charter requires that under certain circumstances an extensic. or modification to an existing lease of City -owned waterfront property first be approved by a majority of the voters of the City of Miami. By Resolution 85-642 adopted June 13, 1985, the City Commission called and provided for a special municipal election to be held on August 13, 1985. The purpose of the election is to submit Bayshore Properties Inc.'s proposal to the electorate for their approval or disapproval. " " � Honorable Mayor and Members of the city Commission Page Two it is recommended that the attached resolution he adoptcd, approving the agreement between 8ayahnre Properties, Inc. and the City of Miami fo r the axtens1on, comb-Ination and mod1Cj.catiun of the exiotin.g cwu lease agreemento related to the operation of Monty 7raincr's Restaurant, Marina and 6oatshrd Facility. The resolution further authorizes the City Manager to execute said agreement in substantially the yonn attacbed, subject to voter approval at the special municipal election on August 13, 1985' it is requested that the attached resolution be scheduled on 1,oe city Commission meting of July 18, 1985.