HomeMy WebLinkAboutExhibit CC MTG 05-23-2019LEASE AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
VIRGINIA KEY, LLC
FOR THE LEASE OF CITY -OWNED PROPERTY
LOCATED AT
VIRGINIA KEY
3301, 3605, 3501, 3311, & 3511
RICKENBACKER CAUSEWAY
MIAMI, FL 33149
TABLE OF CONTENTS
PAGE
ARTICLE I INCORPORATION, EXHIBITS, & DEFINITIONS 1
1.1 Incorporation by Reference 2
1.2 Exhibits 2
1.3 Definitions 2
1.4 Priority of Documents 10
ARTICLE II LEASE OF PREMISES 11
2.1 Lease of Premises 11
2.2 Purpose of Use and Occupancy 11
2.3 Suitability of Premises 12
2.4 Limited Representations by Lessor 12
ARTICLE III TERM 13
3.1 Term of Lease 13
3.2 Option to Renew 13
ARTICLE IV RENT, SECURITY DEPOSIT, & FINANCIAL RECORDS 14
4.1 Base Rent and Percentage Rent 14
4.2 Parking Facilities 16
4.3 Security Deposit 16
4.4 Earnest Money Deposit 18
4.5 Lessee's Financial Records 18
4.6 Reports by Lessee 19
4.7 Right to Examine Financial Records 19
4.8 Audit 20
4.9 Lien for Rent & Other Charges 21
4.10 Affordable Housing Contribution 21
ARTICLE V CONSTRUCTION & LEASEHOLD IMPROVEMENTS 21
5.1 Lessee's Obligation to Construct & Maintain Leasehold Improvements 21
5.2 Conceptual Plan 22
5.3 Construction Plans 22
5.3.1 Submission. 22
5.3.2 Construction Plans Approval. 23
5.3.3 Lessee Solely Responsible. 23
5.4 Possession Date 24
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5.5 Development Schedule 24
5.6 Review 25
5.7 Payment and Performance Bond 25
5.8 Contractor's Insurance 26
5.9 Conveyance of Improvements 26
5.10 Premises to Remain Free of Liens 26
5.11 Lessor's Approval 27
ARTICLE VI CONDUCT OF BUSINESS BY LESSEE 27
ARTICLE VII MAINTENANCE, REPAIR AND ALTERATION OF PREMISES 27
7.1 Lessee's Maintenance Obligations 27
7.2 Lessee's Repair Obligation 28
7.3 Changes/Alterations/Signs 28
7.4 Capital Expenditure Fund 29
ARTICLE VIII INSURANCE AND INDEMNITY 29
8.1 Insurance on the Premises 29
8.2 Delivery of Insurance Policies 30
8.3 Adjustment of Loss 30
8.4 Indemnification of Lessor 31
8.5 Waiver of Subrogation 31
8.6 Release of Lessor 32
ARTICLE IX SERVICES AND UTILITIES 32
9.1 Lessee to Provide and Pay for Utilities 32
9.2 Lessor Not Liable for Failure of Utilities 32
ARTICLE X SUBLEASES, ASSIGNMENTS AND TRANSFERS 33
10.1 Subleases, Assignments and Transfers 33
10.2 Procedure for Transfer 34
10.3 Additional Consideration Payable to Lessor 34
10.4 Definitions 35
10.5 Acceptable Transfers 36
10.6 Information as to Owners, Etc. 37
10.7 Effectuation of Transfers 37
10.8 Criteria for Consent for Transfer 37
10.9 Liability of Lessee 38
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10.10 Acceptance of Rent from Transferee 39
10.11 Transfers of the Lessor's Interest 39
10.12 Mortgages of Leasehold Interest 39
ARTICLE XI COMPLIANCE WITH LAWS 41
11.1 Compliance with Laws 41
11.2 Labor Peace Agreements 42
11.3 Minimum Wage Requirements 42
ARTICLE XII ENVIRONMENTAL LIABILITY 42
12.1 Definition of Terms 42
12.2 Lessee's Environmental Covenant 43
12.3 Survival of Obligations 43
ARTICLE XIII DAMAGE OR DESTRUCTION OF PREMISES 43
13.1 Definitions 43
13.2 Duty to Repair, Restore or Replace Premises after Damage 44
13.3 Performance of Restoration Work 45
13.4 Intentionally Deleted 45
13.5 Lessee's Right to Terminate 45
13.6 Payment for Construction of Restoration Work 45
13.7 Collection of Insurance Proceeds 45
13.8 Unused Insurance Proceeds and Deposits 45
ARTICLE XIV EMINENT DOMAIN 46
14.1 Total Condemnation 46
14.2 Partial Condemnation 46
14.3 Adjustment of Rent Upon Partial Taking 47
14.4 Deposit of Condemnation Award with Escrow Agent 47
14.5 Temporary Taking 47
ARTICLE XV PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS 48
15.1 Payment of Taxes and Impositions; Contest Rights 48
15.2 Installment Payments of Ad Valorem Taxes and Impositions 48
15.3 Payment in Lieu of Taxes 49
15.4 Proof of Payment 49
ARTICLE XVI DEFAULT 49
16.1 Lessee Default 49
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16.2 Remedies of Lessor 50
16.3 No Waiver by Lessor 52
16.4 Late Payment Fee 52
16.5 Additional Guarantees 52
16.6 Remedies Cumulative 53
16.7 Lessor Default 53
ARTICLE XVII ACCESS 53
17.1 Right of Entry 53
17.2 Access Agreements 54
ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY 54
18.1 Loss and Damage 54
ARTICLE XIX HOLDING OVER & SUCCESSORS 55
19.1 Holding Over 55
19.2 Successors 55
ARTICLE XX EQUAL EMPLOYMENT OPPORTUNITIES 55
20.1 Equal Employment Opportunities 55
20.2 Community Small Business Enterprise 56
20.3 Non -Discrimination 56
ARTICLE XXI MISCELLANEOUS 56
21.1 Accord and Satisfaction 56
21.2 Public Records 56
21.3 Entire Agreement 57
21.4 Independent Parties 57
21.5 Notices 58
21.6 Captions and Section Numbers 58
21.7 Partial Invalidity 59
21.8 Estoppel Certificate 59
21.9 Waiver 59
21.10 Time is of the Essence 59
21.11 No Discrimination 59
21.12 Governing Law, Venue, & Attorney's Fees 60
21.13 Waiver of Counterclaims 60
21.14 Waiver of Jury Trial 60
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21.15 Quiet Enjoyment 60
21.16 Surrender of Possession 60
21.17 Joint and Several Liability 61
21.18 Third Party Beneficiary 61
21.19 Radon 61
21.20 No Liability for Act of other Party 61
21.21 Rights, Privileges and Immunities; Covenants 61
21.22 Review of Statements 61
21.23 Brokers 62
21.24 Consents 62
21.25 Memorandum of Lease 62
21.26 City as Lessor Only 62
21.27 Access to Premises 62
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), made this day of , 20 ,
by and between the CITY OF MIAMI, a municipal corporation of the State of Florida having its
offices at 3500 Pan American Drive, Miami, Florida 33133 ("Lessor" or "City") and VIRGINIA
KEY, LLC, a Florida limited liability company having its principal offices at c/o RCI Marine,
300 Alton Road, Suite 303, Miami Beach, Florida 33139 ("Lessee"). The Lessor and
Lessee (together the "Parties"), hereby recite:
RECITALS
Whereas, the City is the owner in fee simple of certain upland and submerged lands located
in the City of Miami, Miami -Dade County, Florida referred to herein as the "Premises," as
specifically set forth in Exhibit A.
Whereas, in response to the Virginia Key Marina Request for Proposals
#16-17-011 ("RFP"), Lessee submitted to Lessor a proposal, which was approved by the City
Commission on by Resolution No.
Whereas, this Lease was negotiated pursuant to the authority expressly conferred by the
City of Miami Charter and Code, general laws of the State of Florida, and the City Commission
Resolution No. , which authorized the execution of this Lease.
Whereas, this Lease was approved by referendum on , by a majority of
City of Miami voters as required by City of Miami Charter.
Whereas, it is the mutual desire of the Parties that the Premises be leased and demised by
Lessor to Lessee for the purposes set forth in this Lease, subject to and upon the express terms and
conditions contained herein. The Parties believe, intend, and affirm that this Lease is consistent
in all material respects with the RFP.
Now therefore, in consideration of the foregoing and of the rent, covenants, and agreements
hereinafter set forth, the Parties do hereby covenant and agree as follows:
ARTICLE I
INCORPORATION, EXHIBITS, & DEFINITIONS
Any word contained in the text of this Lease shall be read as the singular or the plural and
as the masculine, feminine or neuter gender as may be applicable in the particular context. More
specifically, however, for the purposes of this Lease, the following words shall have the meanings
attributed to them herein in subsection 1.3.
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1.1 Incorporation by Reference
The foregoing Recitals are hereby incorporated into this Lease by this reference as if set
out in full in the body of this Lease.
1.2 Exhibits
Attached hereto and forming a part of this Lease are the following Exhibits:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
1.3 Definitions
Survey/Legal Description of Premises
Monthly Gross Revenue Report
Contractor Insurance Requirements
Leasehold Insurance Requirements
Phasing Plan
Memorandum of Lease
Permanent Improvements
1.3.1 "Acceptable Operator" means an entity or entities possessing: (A) a
minimum of five (5) years of experience (i) directly managing and operating a similar
establishment or the applicable key component(s) thereof (e.g., marina component, restaurant
component) during the fifteen (15) year period immediately prior to the date hereof; or (ii) directly
involved in the ownership and day to day operation of a similar establishment or the applicable
key component(s) thereof (e.g., marina component, restaurant component) during the ten (10) year
period immediately prior to the date hereof; and (iii) in the management and operation for each
use proposed; and (B) the threshold criteria outlined in the RFP; and C) a good reputation in the
business community; and (D) adequate financial resources and personnel necessary for the
performance of all of Lessee's applicable obligations under this Lease in a manner consistent with
the quality, reputation and economic viability of the Lessee's business at the Premises.
1.3.2 "Additional Rent" means any and all additional sums, charges, or amounts
of whatever nature to be paid by Lessee to Lessor in accordance with the terms of this Lease,
whether or not such sums, charges or amounts are referred to as Additional Rent.
1.3.3 "Anticipated Repair Cost" shall have the meaning set forth in Section 7.4.
1.3.4 "Applicable Law(s)" means all laws, Federal, Florida Statutes, Codes, City
of Miami and Miami -Dade County ordinances, regulations, orders, judgments, decrees and
injunctions from courts having jurisdiction over the Premises and Parties, rules, and requirements
of Federal, State and local boards and agencies with jurisdiction over the Premises and Parties,
now existing or hereafter enacted, amended, adopted, foreseen and unforeseen, ordinary and
extraordinary, which may be applicable to the Premises or any part of it.
5.5.
1.3.5 "Approved Permit Adjustment" shall have the meaning set forth in Section
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1.3.6 "Assignment" refers to the complete transfer of the rights and obligations
of the Lessee under the Lease to an unrelated third party, whereupon the third -party assignee
becomes the Lessee under the Lease and takes over all of the Premises and the rent and other
obligations associated with the Lease, thereby assuming all of the prior tenant's rights and
obligations. Subleases of a portion of the Premises shall not be deemed an Assignment.
1.3.7 "Assignee" refers to the unrelated third -party entity assuming all the rights
and obligations of the Lessee or assignor or owner of the Leasehold Estate. An unrelated third -
party is any business entity who is neither a subsidiary nor affiliate of the Lessee or its principals,
Guarantor(s), or Manager(s); does not then retain an ownership interest in Lessee; and is not
operated or managed by Christoph or Suntex.
1.3.8 "Assignor" refers to the Lessee that is assigning all its rights and obligations
under this Lease to a third -party entity. Unless released from liability from the City pursuant to
Section 10.9 of this Lease, which decision shall be conditioned on the payment of the Transfer Fee
(except for an Accepted Transfer), the Assignor shall remain jointly and severally liable as a
guarantor for Lessee's obligations under this Lease, if the successor Lessee (Assignee) defaults
under the Lease.
1.3.9 "Award Date" means , 20 , the date the Lessee's proposal
in response to the RFP was approved by the City Commission by Resolution No.
1.3.10 "Base Rent" shall mean the annual Base Rent due and payable by Lessee
on a monthly basis for the use of each Phase of the Premises and shall have the sum ascribed to it
in Section 4.1.1.
1.3.11 "Business Days" means Monday through Friday, excluding legal holidays
in the City of Miami, Florida. Unless otherwise identified as Business Days, any reference to days
shall refer to calendar days.
1.3.12 "CapEx Fund" shall have the meaning set forth in Section 7.4.
1.3.13 "Capital Improvements" has the meaning set forth in Section 7.4.
1.3.14 "Christoph" means any immediate family member of Robert W. Christoph,
Robert W. Christoph, Jr., and/ or Hunter Christoph or any trust for such family members' benefit
or any entity controlled by (directly or indirectly), or under common control with, Robert W.
Christoph, Robert W. Christoph, Jr., and/or or Hunter Christoph.
1.3.15 "City Manager" shall mean the Chief Administrative Officer of the City. In
day to day matters all decisions attributed to the City in this Lease may be made by the City
Manager, or his or her authorized designee as set forth in writing to Lessee, unless otherwise
specified in writing to Lessee or in this Lease.
1.3.16 "City Commission" shall mean the local legislative body of the Executive
Mayor and City Commission. Notwithstanding anything to the contrary, the City Commission has
approved the Lease and will be required to approve any material amendments to the Lease, unless
otherwise delegated to the City Manager within this Lease.
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1.3.17 "Construction Plans" shall have the meaning set forth in Section 5.3.1 of
this Lease.
1.3.18 "Construction Work" shall mean any and all construction work performed
by the Lessee, its contractors, subcontractors, agents or employees relating to or in connection with
this Lease, including but not limited to any work performed subsequent to the completion of the
Leasehold Improvements initially contemplated as part of the Phasing Plan.
1.3.19 "Consumer Price Index" shall mean the Consumer Price Index reported by
the U.S. Bureau of Labor Statistics for All Urban Consumers, with a U.S. City Average area
coverage.
1.3.20 "`Delivery Date" shall mean the date the Lessor delivers to Lessee legal and
physical possession of the Premises. The Delivery Date shall be as promptly as possible after the
Objection Expiration Date, but no later than thirty (30) days thereafter. Notwithstanding the
foregoing, Lessee may, by written notice to Lessor, take possession of the Premises at any time
after the Lease Date and prior to the Objection Expiration Date; and the date of Lessee's written
notice shall be the Delivery Date, subject to then -existing litigation or other objections.
1.3.21 "Date of Taking" means the earlier of (i) the date on which actual possession
of all or less than all of the Premises, as the case may be, is acquired by any lawful power or
authority pursuant to the provisions of any Applicable Law; or (ii) the date on which title to all or
less than all of the Premises, as the case may be, has vested in any lawful power or authority
pursuant to the provisions of any Applicable Law.
1.3.22 "Encumbrance" means any imposition upon the Premises or other lien,
charge or similar matters affecting title which could affect clear and marketable title of the Lessor.
1.3.23 "Fair Market Value" has the meaning set forth in Section 4.1.6 of this Lease
and secondarily as supplemented by the applicable terms of the RFP.
1.3.24 "Force Majeure" means an event beyond human control, including but not
limited to acts of national security, national emergency, acts of God, natural disasters, preemption
in a local, state or national emergency, unavailability of labor or materials beyond the control of
the Parties, war, act or threats of terrorism, government regulation, strikes (other than strikes of
Lessee's employees or sublessees' employees), fire or other natural calamity, disorder, civil
disobedience; curtailment of public transportation facilities or service; lawsuits or other legal
actions that would stop, hinder or delay the legal or physical possession of the Premises by Lessee,
Construction Work, and/or intended development of all or any part of the Project; the inability to
obtain or delays in obtaining governmental approvals or permits beyond the control of Lessee; or
any occurrence which makes it illegal or impossible for Lessee to perform its applicable
obligations under this Lease. Neither party shall be entitled to claim Force Majeure for events
caused, directly or indirectly, by the claiming party or individuals or entities under its control and
Force Majeure is not intended to include any contract dispute between Lessee and its contractors.
1.3.25 "Gross 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
Premises.
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1.3.26 "Gross Insurance Proceeds" means the actual amount of insurance proceeds
paid following an insured casualty to the Leasehold Improvements to demolish, remove debris,
repair, restore, or otherwise replace or repair the Leasehold Improvements.
1.3.27 "Gross Revenues" shall mean the entire amount of all revenues and
percentages of revenues actually collected and received by the Lessee (and its assignees or
transferees) from Lessee's operation of any business at the Premises or by and through its
Leasehold Estate, including without limitation, those Gross Revenues derived from the following
sales sources:
(a) all revenue received by Lessee from Lessee or its affiliates operating
any commercial or retail business and/or services on or from the Premises other than for a
restaurant operation, the Gross Revenues from which are specifically set forth in (b), (d), (g)
and (h) below);
(b) all revenues received by Lessee from Lessee's or its affiliates' sales
of food, beverage, wine and/or beer from the Premises;
(c) all revenue received by Lessee derived from its advertising and
sponsorships conducted on the Premises by or at the direction of Lessee, including, but not limited
to, movies, television commercials. To the extent Lessee enters into any barter arrangements in
lieu of receipt of monetary payments, revenue shall not be limited to monetary payments received
by Lessee, but shall also include the fair market value attributed to the benefit of any barter
arrangement, including without limitation, the fair market value of all promotional goods, services,
programs and other benefits provided to Lessee in connection with the use of the Premises;
(d) all amounts received by Lessee from Lessee's and/or its affiliates'
catering and/or direct food operations based at the Premises;
(e) all amounts received by Lessee from valet concession sales, parking
valet services or similarly authorized and permitted concessions on the Premises where the Lessee
receives and retains any portion, percentage or fraction of the cost of such sales or services, or
obtains any fee in any manner from the concessionaire, these sales are subject to verification by a
written concession agreement, and any audit or inspection requested by the Lessor in accordance
with the requirements of Section 18-99 through 18-102 of the City Code, which is deemed
incorporated by reference as if fully set forth herein;
(f) all amounts received by Lessee from sales made or performed by
means of mechanical or other vending devices or machines on the Premises, including without
limitation, payphones, computers, peripherals, gaming, broadcasting, recording,
telecommunications, and other digital devices, vending machines, kiosks and entertainment
devices both for cash and on credit, rendered in or upon the Premises;
(g) all revenue received by Lessee for Lessee's or its affiliates'
operation of special events at the Premises, any facility thereon, or any portion thereof for any
period, including banquets, parties, and receptions, and other events held on or initiated from the
Premises;
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(h) amounts received by Lessee from Lessee's or its affiliates' sales
from interne or telephone food/beverage orders received or filled at the Premises, or procured
from the Premises by house -to -house or other canvassing, including discount, merchant and online
savings incentives including, without limitation, sources and programs such as Groupon, all
deposits not refunded to purchasers, and orders taken, although said orders may be filled
elsewhere, including proceeds of all video games;
(i) all grants, subsidies, rebates, credits or similar benefits received by
Lessee 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,
however grants received by Lessee from any governmental body or agency or any non-profit entity
or agency for the construction of any Leasehold Improvements or infra -structure, improvements,
including the remediation of any site conditions or improvements thereto or similar grants
benefitting the Premises, are specifically excluded;
(j) all donations and contributions received by Lessee, the revenues of
which are unrestricted or are to be used for general operating expenses;
(k) all Rent for any Sublease received by Lessee from a
Sublessee (whether or not such Sublessee is an affiliate of Lessee) but specifically excluding late
fees, default interest, termination fees, or any pass through charges or expenses reimbursed by a
Sublessee, such as reimbursements for utilities, impositions, insurance, common area maintenance
costs, provided that the Gross Revenue received by any affiliate Sublessee of Lessee is included,
and further providing that Lessee derives absolutely no profit from any of the above -mentioned
exclusions;
(1) and all other receipts whatsoever derived from commercial
operations conducted in or from the Premises by the Lessee.
Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized in
the period the service was provided or sale took place unless it is for a gift and or other credit
which shall be recognized upon redemption. 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. In no event shall any
received payment of funds which would be deemed part of Gross Revenues be included more than
once in calculating Lessee's aggregate Gross Revenues even if such funds may fall under multiple
categories listed above.
Items which shall be expressly excluded from the definition of Gross Revenues:
(i) Any sales, use or other taxes imposed by law which are
separately stated to and paid by the purchaser or user, and are directly payable to a taxing authority
by the Lessee, shall be excluded from gross receipts;
Page 6
(ii) Bad debts owed by an outside third party and written off by
the Lessee, in accordance with sound accounting practices consistently applied, but such bad debts
shall be included when, and if, actually received in whole or in part by Lessee in the future;
(iii) Reimbursement from the Lessee's provision, without profit,
of utilities or other services, including telephone, cable television, internet, water, electricity,
landscaping and maintenance to tenants, subtenants, licensees or concessionaires utilizing the
Premises, so long as this exclusion is susceptible to audit, and is not a profit -generating service for
Lessee;
(iv) Income from any late fees, default interest, termination fees,
or from pass -through expenses, without profit paid by any tenants, subtenants or concessionaires
utilizing the Premises, which are expenses actually incurred by Lessee such as real estate taxes or
Impositions, so long as this exclusion is susceptible to audit, and is a true dollar for dollar set-
off/loss. Any fees collected that are not a verifiable set-off/loss shall be considered as part of Gross
Revenue;
(v) Service, finance, late and/or interest charges imposed by
Lessee and paid by customers for the extension of credit on sales by Lessee where such charges
are not included in the sales prices of the items or services sold;
(vi) Gross Revenues of any Sublessee, licensee or concessionaire
not affiliated with Lessee who is renting or using space and operating a business at the Premises,
provided, however, that the rent paid by such third party shall be included as provided in (k) above;
(vii) That portion of the Gross Revenues of any fuel sales
equivalent to the actual cost of the fuel paid by Lessee as documented by invoices from the fuel
provider; and
(viii) Any sums actually paid to MPA (as defined in Section 4.2
below) or such other governmental authority or unaffiliated operator who collects parking income
in connection with the use or operation of the Parking Facilities shall be excluded from the Gross
Revenues associated with any parking or any portion thereof.
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, shall be included in Gross Revenues, at such time
that (i) the transaction is initially reflected in the books or records of Lessee (which books and
records shall be maintained on a cash basis and not an accrual basis); or (ii) Lessee receives all or
any portion of the sales price; or (iii) the applicable goods and/or services are delivered to the
customer and payment is made to Lessee, 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.
1.3.28 "Impositions" means all assessments, impositions, levies, fees, and
governmental charges, including, without limitation, assessments imposed by the City and/or
County, franchise fees, fire fees, excises, parking surcharges, license, regulatory, use and permit
fees, levies, charges and taxes, including ad valorem real estate taxes on the Premises and the
Leasehold Improvements, sales or use taxes levied for sales on the Premises, general and special,
Page 7
ordinary and extraordinary assessments properly levied against the Premises and the Leasehold
Improvements, any personal property, and/or the Lessee's Leasehold Estate which constitute a lien
on the Premises or the Leasehold Improvements.
1.3.29 "Lease" means this Lease as supplemented by the RFP, and any addendums
thereto, all of which are hereby incorporated by reference into this Lease as additional documents
providing supplemental terms and conditions; provided, however, that in the event of any express
conflicts between this Lease and the other documents referenced in this subsection this Lease shall
govern.
1.3.30 "Lease Date" means the date that the Lease is fully executed and legally
binding upon the Parties as of the date first written above, and after approval by the City of Miami
Commission and approval by referendum.
1.3.31 "Leasehold Estate" means all of Lessee's right and interest as Lessee in, to
and under this Lease, the Premises and the Leasehold Improvements, as applicable.
1.3.32 "Leasehold Improvements" means any initial permanent structures,
furnishings, or equipment constituting fixtures to be installed on the Premises, and all other items
and improvements constituting fixtures to be installed or constructed thereafter, from time to time
during the Lease Term that are hereafter located upon the Premises. If the Leasehold
Improvements are constructed in Phases as permitted in this Lease the reference to the term
Leasehold Improvements shall mean and refer to the Leasehold Improvements in a particular Phase
as the context may so indicate.
1.3.33 "Leasehold Mortgage" means a mortgage, deed of trust, collateral accounts,
or any security interest given in connection therewith, which together constitute an encumbrance
or lien upon the Lessee's Leasehold Estate, or any part of it, and Lessee's interest in the Leasehold
Improvements or personal property of Lessee directly or indirectly pledged as security for such
loan. The Leasehold Mortgage may never lien, pledge, hypothecate, or otherwise encumber or
subordinate the fee simple interest of the Lessor.
1.3.34 "Lease Term" 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.
1.3.35 "Lease Year" means twelve (12) full consecutive months. The first Lease
Year shall begin on the Delivery Date. If the Delivery Date does not fall on the first day of the
month, the first Lease Year will commence on the first day of the following month. Each
succeeding Lease Year shall commence on the anniversary date of the first Lease Year.
1.3.36 "Liens and Encumbrances" means any liens, Encumbrances, mortgages,
easements by third parties unrelated to Lessee, lis pendens, or any other matters affecting the title
of the Premises, or any part thereof, which would preclude or otherwise materially affect Lessee's
quiet enjoyment of the Premises. Liens and Encumbrances shall not include mortgages or other
liens or Encumbrances enforceable by and for the benefit of Lessee or its related entities.
Page 8
1.3.37 "Major Special Event" means any event held at the Premises which is not
in the ordinary course of the day-to-day business activities at the Premises and which event lasts
for a period of more than three (3) consecutive Business Days (excluding set up and breakdown
time).
1.3.38 "Objection Expiration Date" means the date upon which all of the following
shall have occurred: (i) all appeal periods with respect to any lawsuit, legal action, or appeal filed
with respect to the lawfulness or validity of the RFP or the referendum or other approval(s) of this
Lease, have expired without objection and if an objection has been raised, the final adjudication
or resolution of such objection in Lessee's and the City's favor; (ii) the final adjudication or
settlement of any actual litigation involving the RFP, the referendum, entering into this Lease by
the Parties, the Lessee's legal or physical possession of the Premises and/or the use of the Premises
by Lessee in Lessee's and the City's favor; and (iii) the former operator and tenant of the Premises
and any subtenants, licensees or other occupants (except wet or dry slip holders whose agreements
may be assigned to Lessee) shall have vacated the entire Premises and left the Premises in the
condition required by the lease agreement with the existing tenant and Lessor (unless such
condition of Premises is waived by Lessee), and any right to use and/or possess the Premises, or
any part thereof, belonging to such third parties shall be terminated and no longer in effect. Either
party may terminate this Lease in the event the Objection Expiration Date does not occur within
two (2) years of the Lease Date.
1.3.39 "Parking Facilities" shall mean the Parking Facilities built by Lessee at the
Premises containing the greater of (i) the minimum number of parking spaces required by the
Miami 21 Zoning Code as of the Award Date or (ii) the parking formula and requirements of the
RFP.
1.3.40 "Percentage Rent" shall have the meaning ascribed to it in Section 4.1.4 and
shall be payable annually and calculated as a percentage of the Gross Revenues.
1.3.41 "Permanent Improvements" shall mean those certain improvements and
fixtures located at the Premises and more particularly set forth in Exhibit G attached hereto.
1.3.42 "Phase" shall mean a portion of the Premises and the Leasehold
Improvements built thereon, as set forth in Exhibit E attached hereto.
1.3.43 "Phasing Plan" means the phased development of the Leasehold
Improvements and use of the Premises as set forth in Exhibit E attached hereto
1.3.44 "Premises" means the space more particularly described in Section 2.1
herein and Exhibit A attached herewith and incorporated herein by reference and having a
collective address of 3301, 3605, 3501, 3311, & 3511 Rickenbacker Causeway, Miami, Florida.
1.3.45 "Principal" means Virginia Key Parent, LLC, a Florida limited liability
company.
1.3.46 "Procedural Delay" means a failure of a Party to timely respond resulting
in day for day abatement of Rent for the time of such Procedural Delay and a day for day extension
of the deadlines in the Development Schedule set forth in Section 5.5.
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1.3.47 "Proposal" means the document received by Lessor from Lessee in response
to the RFP.
1.3.48 "Rent" means Base Rent, Percentage Rent, and any other rents, costs and
expenses denominated as Additional Rent.
1.3.49 "Rent Commencement Date" means the date that Lessee shall commence
paying Base Rent as further set forth in Section 4.1. The Rent Commencement Date shall be the
Delivery Date.
1.3.50 "RFP" means the document entitled Request for Proposals #16-17-011,
issued by the City on February 17, 2017, and addendums 1 through 6 issued by the City in
connection therewith, entitled Notice of Site Visit and Conference, Notice of Selection Committee
Appointment, Pre -Proposal Submission Conference, Sign -In Sheets and Transcript, Questions and
Answers, RFP Revisions, and Bid Security List (Amended).
1.3.51 "Sublease" means any lease (excluding this Lease), sublease, license,
concession or other agreement by which Lessee or any person or other entity claiming under
Lessee (including, without limitation, a Sub -lessee or sub -licensee) demises, leases, subleases,
licenses or sublicenses to or permits the use or occupancy by another unrelated third party of any
part of the Premises and Leasehold Improvements.
1.3.52 "Sub -lessee" means any person, firm, corporation or other legal entity using
or occupying or entitled to use or occupy any part of the Premises or the Leasehold Improvements
under a Sublease.
1.3.53 "Suntex" means Virginia Key SMI, LLC, a Delaware limited liability
company, Suntex Marina Investors LLC, a Delaware limited liability company, or any entity
directly or indirectly controlled by such entities or under common control with such entities.
1.4 Priority of Documents
The RFP shall be incorporated hereto by reference. Following the issuance of the RFP,
Lessee submitted the Proposal, which was accepted by the City. The above -referenced documents
shall be interpreted to avoid conflicts, where possible. In the event of an express conflict between
the above -referenced documents and the terms of this Lease, the following order of priority or
precedence shall govern:
1.4.1 This executed Lease and its exhibits, as may be amended, shall govern over
the RFP and the Proposal;
1.4.2 The RFP shall govern over the Proposal;
1.4.3 The Proposal will be subordinate to the Lease and the RFP, respectively.
To the extent any material term of the Proposal or the RFP has not been properly or accurately
incorporated into this Lease, at the reasonable good faith request of any party, the parties shall
promptly amend the Lease accordingly to include the same. Whenever practicable such
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amendments shall be done administratively by the City with the City Manager as signatory. All
formalities existing by law and regulations for such amendments will be followed.
ARTICLE II
LEASE OF PREMISES
2.1 Lease of Premises
The Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby leases
from the Lessor the Premises, 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 Lease Term herein specified, unless this
Lease shall be sooner terminated in a manner hereinafter provided. The Premises is described
more particularly in Exhibit A attached hereto and incorporated herein by reference.
Lessee shall have all rights, privileges, easements and appurtenances, if any, benefiting the
Premises in, over and upon adjoining and adjacent public and private land, highways, roads and
streets reasonably required for ingress or egress to or from the Premises by Lessee, its agents,
servants, employees, contractors, customers and invitees and all others related to Lessee's use and
occupancy of the Premises. Notwithstanding any language in this Lease to the contrary, Lessor is
the fee simple owner of the Premises, and this Lease shall in no way convey any title or other
rights to the Premises to Lessee unless otherwise specified herein; Lessee may not mortgage,
pledge, transfer, hypothecate, or otherwise encumber Lessor's fee simple ownership interest in the
Premises in any way, or in any way pledge any rights held by the fee simple owner, however
Lessee may mortgage, pledge or otherwise encumber its Leasehold Estate (excluding the City's
fee simple ownership interest) pursuant to the provisions of Section 10.12. Lessor agrees that it
will not impair or permit any party to impair any reasonable access to or use of the Leased Premises
during the Lease Term or, as applicable, the First Renewal Term and/or Second Renewal Term.
2.2 Purpose of Use and Occupancy
The Lessee will use and occupy the Premises, subject to compliance with all Applicable
Laws and other permits, consents, and similar approvals, including the use requirements and other
conditions imposed by the RFP, for: (i) wet and dry slips for vessels and boat storage; (ii) ship's
store; (iii) restaurant; (iv) sale of fuel; (v) small scale non-commercial repair and maintenance of
vessels and marine related equipment (however, large scale commercial for hire boat painting,
transmission repairs or dry dock repairs are not permitted to the extent prohibited by the RFP);
(vi) retail and other commercial uses, (vii) other marine uses, and (viii) all other ancillary uses in
connection with the foregoing, and for no other purpose or use of any kind without the prior written
consent of Lessor, which consent shall not be unreasonably withheld, conditioned or delayed.
Reasonably related special events may be held on the Premises without the City's prior written
consent; however the City's prior written consent shall be required for Major Special Events as
provided herein. Lessee's request for a Major Special Event must be delivered to Lessor a
minimum of fifteen (15) days prior to the date of the event and the Lessor shall have fifteen (15)
days to respond to such a request in writing. If the Lessor fails to timely respond the Lessee shall
provide a second written notice. If Lessor fails to timely respond after the second written notice,
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such matter shall be deemed approved by Lessor but solely in its capacity as landlord and such
Major Special Event shall remain subject to obtaining all necessary permits and other
governmental approvals legally required in order to hold the event in the City, and such consent
shall not waive any of Lessor's approval rights in connection with the permit application process.
Any consent by Lessor provided in this Section shall be in Lessor's capacity as landlord and owner
of the Premises and not in its capacity as a municipality or governmental body. Pursuant to the
RFP, Lessee shall operate the Premises in accordance with the Miami 21 Zoning Code CS
designation or such other applicable designation in effect as of the Award Date, and, to the extent
required by Applicable Law, the equivalent designation in any successor zoning ordinance.
Except as otherwise set forth in this Lease and with respect to any Phase under construction
as part of the initial Construction Work, the Lessee will operate the Premises a minimum of forty
(40) hours per week, except in cases of Force Majeure, casualty or condemnation or any reasonable
period of remodeling, repair or reconstruction of the Premises, which remodeling, repair or
reconstruction may not, without Lessor's prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), exceed a continuous period of thirty (30) Business
Days in any calendar year, or more than a cumulative total period of forty five (45) Business Days
in any calendar year (subject to delays for Force Majeure), excepting the initial Construction Work.
2.3 Suitability of Premises
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 Premises, or with respect
to the suitability or fitness of the Premises, for the conduct of Lessee's 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 Premises "AS IS" as of the Award Date
together with all Permanent Improvements located thereon as of the Award Date and owned by
Lessor, subject to the representations set forth in Section 2.4 herein, the RFP or elsewhere in this
Lease.
2.4 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 Premises by the Lessee:
(a) That Lessor has taken all requisite actions to make this Lease binding upon Lessor,
and Lessor has marketable, fee simple title to the Premises, and is the sole owner of and has good
right, title and authority to convey and transfer all rights and benefits which are the subject matter
of this Lease. Absent emergency action, or other Municipal Home Rule Action required by the
public health, safety and general welfare, Lessor covenants with Lessee that it will not, during the
Lease Term and any option period hereof, conferred and validly exercised, knowingly permit an
imposition upon the Premises. The obligation of the Lessor set forth in the preceding sentence is
not intended to limit the ability of the Lessor, acting in its governmental capacity, to exercise its
police powers with respect to the Premises and any activities within the Premises.
(b) That no party, other than Lessee, shall on the Lease Date be in or have any right to
possession of the Premises, except as shown on that certain Commitment for Title Insurance, File
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No. 15065644, with an Effective Date of June 30, 2017, issued by Old Republic National Title
Insurance Company ("Title Commitment"), a copy of which was delivered to Lessor at or prior to
the Lease Date. Lessee shall not be required to take the Premises subject to any lien or
encumbrance impacting the occupancy of the Premises not shown on the Title Commitment, unless
agreed to by Lessee in Lessee's reasonable discretion. To the extent the existing tenant at the
Premises fails to timely vacate the same or any portion thereof, the Lessor together with Lessee
shall promptly seek legal enforcement of the Lessee's rights to possession hereunder, and the
delivery of the Premises as required in the lease agreement with the existing tenant, including,
without limitation, filing an expedited action to evict the existing tenant, so that Lessee may obtain
legal and physical possession of the Premises as promptly as possible. Lessor and Lessee shall
pay their own litigation costs in order to represent their respective interests in any such litigation.
ARTICLE III
TERM
3.1 Term of Lease
The initial Lease Term is for a period of forty-five (45) years, commencing on the Delivery
Date. The Lease Term shall be extended to include any fraction of a single calendar month
between the Delivery Date and the first day of the first full calendar month thereof.
3.2 Option to Renew
The Lessee has the option of extending this Lease for two (2) additional terms of
fifteen (15) years each ("First Renewal Term" and "Second Renewal Term"), as long as no Event
of Default exists at the commencement of the subject Renewal Term. To exercise the First
Renewal Term or the Second Renewal Term, the Lessee must give Lessor written notice by the
latter of (i) the date which is one hundred eighty (180) prior to the expiration date of the Lease
Term or the First Renewal Term or (ii) the date thirty (30) days following written notice from
Lessor advising Lessee that Lessee has failed to furnish notice of its option to exercise the First
Renewal Term or the Second Renewal Term, as applicable, in the manner provided for herein (the
"Reminder Notice"), which Reminder Notice shall state that such notice constitutes final notice to
Lessee of its option to exercise the First Renewal Term or the Second Renewal Term, as applicable.
Lessor shall send the Reminder Notice as a pre -condition to Lessee's option of extending the Lease
Term expiring. The First Renewal Term and the Second Renewal Term will be on the same terms
and conditions as the Lease Term, except that the Base Rent will be adjusted as set forth in
Section 4.1.2 below. The total term of the Lease, inclusive of the First and Second Renewal Term,
is seventy-five (75) years. No additional renewals will be available unless agreed to in a writing
signed by the both Parties, subject to Applicable Laws, and consistent with the provisions of the
referendum, including that the Lessor receive at least Fair Market Value as determined by two (2)
independent State -certified appraisers.
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ARTICLE IV
RENT, SECURITY DEPOSIT, & FINANCIAL RECORDS
4.1 Base Rent and Percentage Rent
Commencing on the Rent Commencement Date and on the first (1st) day of every calendar
month thereafter during the Lease Term, Lessee hereby agrees to pay to the Lessor the applicable
Base Rent. If the first and/or last payment of Base Rent does not fall on the first day of the month,
then the first and/or last payment, as applicable, shall be prorated based on the number of days in
such month.
In addition to Base Rent, the Lessee hereby agrees to pay the Lessor Percentage Rent on
an annual basis as set forth in this Article. In the event that Lessee fails to provide payment of
Rent in the time required by the terms of this section, Lessee shall be subject to a Late Fee in
addition to payment then due, as more particularly described in Section 16.4 below. No Late Fee
shall be payable by Lessee on any Percentage Rent if such unpaid amount is due to the findings of
amounts payable in connection with a good faith dispute. In such event a Late Fee shall only be
payable if Lessee fails to pay any amounts due within thirty (30) days after the resolution and final
determination of such amount payable as a result of such audit and no other provision of this Lease
prohibits application of such Late Fee.
4.1.1 Base Rent and Percentage Rent
The Base Rent shall be one hundred and eighty-three thousand three hundred and thirty-
three dollars and thirty-three cents ($183,333.33) per month and payable as set forth in Section 4.1
above. The Base Rent shall be adjusted and increased annually by the method described in
Section 4.1.2 below upon the commencement of the second Lease Year.
4.1.2 Base Rent Increase
Lessee agrees that the Base Rent shall be increased annually by an amount equal to the
greater of: (i) three percent (3%) of the previous year's Base Rent or (ii) an increase based on the
amount indicated by the Consumer Price Index as of three (3) months prior to the beginning of the
applicable adjustment date. Notwithstanding the foregoing, in no event shall any such annual
adjustment to the Base Rent result in an increase that is less than three percent (3%), or more than
five percent (5%) of the Base Rent due during the Lease Year immediately prior to the effective
date of such adjustment.
4.1.3 Sales Tax
The Lessee shall be liable for the prevailing State of Florida sales, use or similar tax
imposed on the amount of Rent paid to Lessor under this Lease, in the absence of an exemption or
other reduction by the State of Florida. To the extent permitted by Applicable Law, Lessee shall
be entitled to take a credit for sales and use taxes paid by any Sublessee, licensee, concessionaire
or the like. 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.
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4.1.4 Percentage Rent
From the Rent Commencement Date and continuing throughout the Lease Term, Lessee
shall pay to the City a percentage of Lessee's annual Gross Revenues for Lessee's business
operations made from or upon the Premises for that same time period as set forth
below (collectively, "Percentage Rent"). Percentage Rent shall be computed on an annual, Lease
Year basis ("Percentage Rent Period") beginning with the Rent Commencement Date and
continuing throughout the Lease Term. Further, Percentage Rent shall be a percentage of Gross
Revenues, as further specified below, and shall not be subject to any breakpoint, whether artificial
or natural.
The amount of Percentage Rent payable shall be determined as follows:
(a) Wet Slips and Dry Boat Storage: six percent (6%) of the Gross Revenues;
(b) Commercial Space: six percent (6%) of the Gross Revenues;
(c) Restaurant Space: six percent (6%) of the Gross Revenues;
(d) Fuel Sales: six percent (6%) of the Gross Revenues; and
(e) All other income: six percent (6%) of the Gross Revenues actually received by
Lessee from the use of the premises, and not otherwise specified above.
4.1.5 Manner of Payment
The Percentage Rent shall be payable within sixty (60) days after the end of each Lease
Year. Lessee shall deliver to the Lessor a statement setting forth the Gross Revenues during the
applicable Percentage Rent Period ("Annual Percentage Rent Statement"), and Lessee shall pay to
the Lessor the amount of Percentage Rent due and payable, if any, to the Lessor pursuant to the
terms of this Lease. Each Annual Percentage Rent Statement shall be reviewed or certified by a
Certified Public Accountant selected by Lessee and shall further be signed and certified to be
complete and correct by an officer of Lessee. Such statement shall show the annual Gross
Revenues and an itemization of any exclusions or deductions for the current Lease Year. Lessee
shall provide the Annual Percentage Rent Statement with an Annual Gross Revenue Report in
substantially the same form as a compiled Monthly Gross Revenue Report attached hereto as
Exhibit B.
Lessee shall:
(i) pursuant to the terms of this Lease, pay the Lessor (x) the monthly Base Rent and
(y) the annual Percentage Rent, and
(ii) within ninety (90) days after the end of each Lease Year, deliver the Annual
Percentage Rent Statement and Annual Gross Revenue Report for the preceding Lease Year to the
City of Miami, Department of Real Estate and Asset Management at the address noted below:
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City of Miami
Department of Real Estate and Asset Management
Attention: Lease Manager
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
4.1.6 Fair Market Value
As required by Applicable Laws, the Lessor has determined that the Base Rent and the
Percentage Rent constitutes Fair Market Value as required by the RFP. The Lessor has made such
determination based upon appraisals of the proposed project performed by two (2) State -certified
general appraisers hired by the Lessor.
4.2 Parking Facilities
Lessee, its employees, agents, representatives, affiliates, contractors, sublessees, licensees,
guests and customers, shall have the right to construct and use the on -site Parking Facilities
throughout the Lease Term in accordance with the Phasing Plan and Applicable Laws. Upon
completion of the Parking Facilities, Lessee shall convey the Parking Facilities either to Lessor or
other governmental agency who is an agency or instrumentality of the City and approved by
Lessor. In addition, Lessor consents to Lessee entering into an agreement with the Miami Parking
Authority ("MPA"), on terms and conditions acceptable to Lessee and Lessor, specifically
conforming to the Rusty Pelican Lease in existence as of the Award Date, and any other existing
obligations, and with the approval of the MPA governing board. If the Lessee and MPA are unable
to reach such an agreement, the MPA or its successor, shall manage and operate the Parking
Facilities, and make the same available for Lessee's use as provided herein. Notwithstanding the
foregoing, if Lessee operates the Parking Facilities, Lessee shall make available for use by the
adjacent restaurant tenant operating the "Rusty Pelican" ("Adjacent Restaurant Operator") no less
than 220 parking spaces as specifically and to the extent required by the RFP provided the Adjacent
Restaurant Operator complies with all Applicable Laws and the reasonable rules and regulations
established by Lessee for the use of the Parking facilities. Lessee shall have the right to increase,
decrease, change, alter or otherwise modify the Parking Facilities throughout the Lease Term, in
its sole discretion, pursuant to the terms of this Lease and Applicable Law. Prior to the
construction of the Parking Facilities in accordance with the Phasing Plan, Lessee, its employees,
agents, representatives, affiliates, contractors, sublessees, licensees, guests and customers, shall
have the right to park in self-contained areas throughout the Premises so long as such parking does
not violate Applicable Law.
4.3 Security Deposit
On the Lease Date, two million and 00/100 dollars ($2,000,000.00) of the Earnest Money
payable by Lessee pursuant to Section 3.4 below shall be paid to the Lessor, to be held in a separate
segregated account as security for performance by Lessee of all obligations imposed under this
Lease which Lessee is required to perform during the Lease Term, and any extension thereof (the
"Security Deposit"). The Security Deposit shall be adjusted to one million
and 00/100 dollars ($1,000,000.00) upon the issuance of a temporary or final Certificate of
Completion for the Leasehold Improvements pursuant to the Phasing Plan as may be adjusted by
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Force Majeure, or any equivalent thereof and $1,000,000 shall be promptly returned to Lessee for
the benefit of the property. Five (5) years following the issuance of a temporary or final Certificate
of Completion, or any equivalent thereof, an additional five hundred thousand and 00/100
dollars ($500,000.00) shall be returned to Lessee; the remaining five hundred thousand and 00/100
dollars ($500,000.00) shall remain in the account as security for the Lease under the same terms
and conditions of the initial Security Deposit described herein.
The Security Deposit shall be in the form of cash or its equivalent (e.g., letter of credit)
which funds may be commingled by Lessor with its other funds. No interest shall be paid on the
Security Deposit by Lessor. 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 a Lessee Default shall occur 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, at
Lessor's sole discretion but in accordance with the terms of this Lease, to the damages sustained
by Lessor by reason of any such Lessee Default, including failure of Lessee to make any required
monetary payment under this Lease when due (beyond any applicable notice and/or cure periods).
Lessor shall provide written notice to Lessee of the amount and reason for any application of the
Security Deposit within five (5) Business Days after such application. 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. In no way shall the Security Deposit
serve as liquidated damages for any Lessee Default; rather, Lessor may apply the Security Deposit
amount to damages sustained by any Lessee Default and continue to request any additional amount
owed. Notwithstanding the above, in the event of a Lessee Default resulting from Lessee's failure
to meet the Phasing Plan deadlines set forth in Section 5.5, subject to reasonable extension and or
excuse from performance for Force Majeure or an Approved Permit Adjustment (including but not
limited to the inability to obtain permits or governmental approvals and/or any uncured default by
the Lessor, Lessor shall have the right to retain the Security Deposit or applicable portion thereof
to compensate for its damages, which shall be in addition to any other remedies to which the City
is entitled.
Further, 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 (as the same may be reduced pursuant to the terms hereof). Lessee shall
make each such requested remittance within thirty (30) 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 thirty (30) day period may be treated by Lessor as a failure by Lessee to make timely
payment of Rent and as a Lessee Default beyond any applicable notice and/or cure periods unless
Lessee has in good faith promptly disputed the validity of such request (within thirty (30) days of
when the date such request was sent) and has promptly sought judicial declaratory relief in
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connection therewith (within one hundred twenty (120) days of when the date such request was
sent).
The Security Deposit (subject to reduction as provided in this Section 4.3), shall be retained
by the Lessor throughout the entire Lease Term and, if not utilized by Lessor, will be returned to
Lessee without interest, and less any allowable deductions, credits or setoffs by Lessor, within
thirty (30) days following the expiration or termination of this Lease, inclusive of any validly
exercised renewal period, as applicable.
4.4 Earnest Money Deposit
On or prior to the Lease Date, Lessee shall provide Seven Million and 00/100
Dollars ($7,000,000.00) ("Earnest Money") by an irrevocable/unconditional cashier's check,
drawn on a financial institution authorized to do business in Florida (or may do the same by wire
transfer or similar means), or shall provide proof the above -mentioned amount has been deposited
into a restricted escrow account in the name of Lessee and specifically earmarked for the
requirements of this Lease. Upon commencement of construction of the Leasehold Improvements
pursuant to the Phasing Plan, Lessee shall be allowed to withdraw sums from that Earnest Money
escrow account as needed in order to pay for actual costs incurred by Lessee in connection with
the development of the Leasehold Improvements contemplated by this Lease, including but not
limited to design and permit fees, environmental remediation, materials, and other construction
costs.
4.5 Lessee's Financial Records
Lessee is a special purpose entity formed for the express purpose of being the lessee under
this Lease and performing its obligations hereunder. Lessee will establish one or more bank
accounts through which deposits of Gross Revenues generated from such operations will be made.
The bank in which such deposits are made shall be based in the United States or shall have a large
local presence. The said deposits of Gross Revenues will not be comingled with those from any
other operations of the Lessee outside of the Premises or any other affiliated organizations. In
addition and/or alternatively, Lessee will use an accounting system that will separately provide for
a detailed accounting of Gross Revenues. The detailed accounting shall not be commingled with
the Lessee's other operations unrelated to the Premises; and, should comply with applicable federal
income tax returns and state sales and use tax returns. Accordingly, Lessee shall prepare (or cause
to be prepared) and keep full and complete financial records and source documents in accordance
with sound accounting principles consistently applied and generally accepted in the United States,
of the Gross Revenues, whether for cash, credit or otherwise, of each separate department at any
time operated in the Premises.
The financial records and source documents to be kept by Lessee for Lessee's business
operations at the Premises shall include, but shall not be limited to true copies of: (1) records of
inventories and receipts of merchandise; (2) all financial profit and loss statements; (3) variance
reports; (4) arrearage reports; (5) balance sheets; (6) financial journals and sales summary records;
(7) general ledgers; (8) daily dated cash register tapes; (9) daily dated cash register summary
tapes ("z tapes"); (10) sales slips which are numbered or otherwise accounted for by an electronic
method, including those for mail or telephone orders; daily sales and/or point of sale (POS) reports;
Page 18
(11) financial statements; (12) bank statements; (13) records of daily bank deposits from
transactions at or from the premises; (14) duplicate validated bank deposit slips; (15) purchase
invoices; (16) inventory and receiving records; (17) pricing schedules or other materials showing
price markups; (18) state and local sales tax reports; (19) settlement statements of transactions with
subtenants, concessionaires, and lessees; and any and all records that may be reasonably examined
or required by an independent accountant in performing an audit of gross income and expenses or
which may be reasonably requested by Lessor.
To the extent reasonably available to 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, internet and telephone orders at and to the Premises, if
any, (v) settlement report sheets of transactions with any person conducting business on the
Premises, if any, (vi) original records indicating that merchandise returned by customers was
purchased at the Premises 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 and reasonably be examined by an independent accountant pursuant to accepted auditing
standards in performing an audit of gross income and expenses.
4.6 Reports by Lessee
Within thirty (30) days following the last day of each month of each Lease Year, Lessee
shall furnish to Lessor a monthly statement itemizing any and all reportable Gross Revenues
generated in the preceding calendar month ("Monthly Gross Revenue Report"). The Monthly
Gross Revenue Report shall be signed and certified to be complete and correct by an officer of
Lessee. The Monthly Gross Revenue Report shall be in a form similar to Exhibit B attached
herewith and incorporated herein, or any other form reasonably acceptable by Lessor.
Within sixty (60) days after the end of each Lease Year, Lessee shall also furnish to Lessor
the Annual Percentage Rent Statement and Annual Gross Revenue Report specified in
Section 4.1.5 above, showing in reasonable detail the amount of such Gross Revenues made by
Lessee from the Premises during the preceding Lease Year. Any intentional misstatement of Gross
Revenues made by Lessee in any written report required to be delivered under this Lease will
constitute a default under this Lease.
4.7 Right to Examine Financial Records
Lessor shall have the right to examine all of Lessee's financial records related to the
calculation of Gross Revenues, including bank statements, state sales and use tax returns/reports,
filed by Lessee, and pertaining to the financial operations on the subject Premises. To the extent
legally permissible, all such information shall be marked as confidential business records of Lessee
or such other designation in order to fall within an exception to the public records disclosure laws.
This paragraph shall not be interpreted to limit an Auditor's ability to obtain any documents
necessary to perform and publish an accurate audit report. Lessee shall make all such documents
and records available for a period of seven (7) years after the expiration of each Lease Year. Lessee
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shall furnish such information at the Premises or Lessee's main accounting office upon not less
than thirty (30) days prior written notice from Lessor.
4.8 Audit
Lessee shall establish and maintain a reasonable accounting system, inclusive of separate
accounts for operating revenues and expenses, escrows, security deposits, that shall enable the
Lessor to readily identity Lessee's assets, revenues, expenses, costs of goods, and use of funds. In
addition, Lessee will establish one or more bank accounts through which deposits of Gross
Revenues generated from such operations will be made. The bank in which such deposits are made
shall be based in the United States or shall have a large local presence. The said deposits of Gross
Revenues will not be comingled with those from any other operations of the Lessee outside of the
Premises or any other affiliated organizations.
The Lessor and its authorized representatives shall have the unrestricted right to audit, all
financial and related records, in any form relating to this Lease or Agreement, including, but not
limited to any financial records kept by the Lessee, its employees, agents, assigns, successors, and
related parties. Such records shall include, but not be limited to, all financial records, previous
audits, all reimbursements, support documentation, invoices; ledgers; deposits slips; bank
statements; journals; any and all related financial documents.
Lessee shall, at all times during the term of this Lease or Agreement and for a period of
seven (7) years after the Lease termination, maintain such records, supporting documents and
materials. The Lessee shall, at any time requested by the Lessor, at Lessee's expense, make all
such records available for inspection and audit required by the Lessor. Such records shall be made
available to the Lessor during normal business hours at either the Lessor's offices, or at the
Lessee's place of business, and within three days written notice. In the event that no such location
is available, then the financial records, together with the supporting documents and records, shall
be made available for audit at a time and location that is convenient for the Lessor.
Lessee shall direct the Lessee's employees, agents, assigns, successors to comply with all
audit requirements and ensure that all obligations and audit rights shall be explicitly included in
any of the Lessee's agreements formed between the Lessee and any representative, consultant,
employee, vendor, subcontractor and/or related entity.
The audit, at the direction of the Lessor's Auditor, or any of the Auditors' staff, may include
the entire Lease term to date, regardless of any prior outside third -party audit, financial review,
inspection, previous estoppel letter(s), and/or any written document or agreement; however, if a
subject or item has been previously audited and resolved, it shall not be re -audited.
If the audit discovers substantive findings related to fraud, misrepresentation, or non-
performance, the Lessor shall be reimbursed for the costs of the audit work from the Lessee. Any
adjustments and/or payments that must be made as a result of any such audit or inspection of the
Lessee's financials and/or records shall be made within thirty (30) days from the release of the
official City Auditor's report, to the extent not legally contested in good faith by Lessee.
If any audit shall disclose that Lessee's statement of Gross Revenues is understated by five
percent (5%) or more per annum, Lessor may bill to Lessee the reasonable cost of such audit,
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which Lessee shall pay within thirty (30) days after Lessee's receipt of Lessor's invoice. If such
audit shall disclose an overpayment, Lessor shall either, at Lessee's option, credit such
overpayment towards the next payment(s) of Rent due under the Lease or return to Lessee within
ten (10) days following Lessee's written demand. In addition to the foregoing, and in addition to
all other remedies available to Lessor, in the event Lessor's auditor shall schedule a date for an
audit of Lessee's records, and Lessee shall fail to be available upon thirty (30) days' notice or shall
otherwise fail to comply with the reasonable requirements necessary for such audit, Lessee shall
pay all reasonable costs and expenses associated with the canceled audit.
Lessor and Lessee agree to attempt to resolve any audit dispute not resolved in sixty (60)
days following delivery of Lessee's written dispute to Lessor by submitting the results of the
disputed audit to a mutually acceptable third -party Certified Public Accounting firm for its
opinion, the fees of which shall be paid by the party who does not prevail regarding the dispute,
or, if both parties prevail in some respect, the cost of the audit shall be split equally between the
Parties.
Lessor shall additionally have such audit rights as are set forth by Section 18-102, City
Code, which is deemed as being incorporated by reference as if fully set forth herein. In addition,
Lessor shall have the ability but not the duty to conduct inspections, as are set forth in
Sections 18-101-103, City Code, deemed as being incorporated by reference as if fully set forth
herein, from time to time, of the Premises as provided.
4.9 Lien for Rent & Other Charges
The whole amount of the Rent and each and every installment, and the amount of all taxes,
assessments, water rates, insurance premiums and other charges and Impositions not paid by the
Lessee prior to delinquency under the provisions of this Lease, and all out of pocket costs,
reasonable attorney's 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. Each party shall bear their
own attorney's fees and costs.
4.10 Affordable Housing Contribution
Lessor agrees that a portion of the Rent payable by Lessee hereunder in the minimum
amount of [$ ] shall be contributed by Lessor to affordable housing initiatives as determined
by Lessor. Lessee shall not be in default hereunder if Lessor fails to comply with this provision.
ARTICLE V
CONSTRUCTION & LEASEHOLD IMPROVEMENTS
5.1 Lessee's Obligation to Construct & Maintain Leasehold Improvements
The Lessee shall, at its own cost and expense, design, construct, install, equip, and maintain
the Leasehold Improvements on the Premises in accordance with the terms and conditions set forth
in the RFP and further set forth below.
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5.2 Conceptual Plan
The Lessor has approved the Lessee's plan for the redevelopment of the Premises as set
forth in the Proposal (the "Conceptual Plan"), including the conceptual design of the open space
and including, without limitation, renderings and layouts of the Premises, estimated
commencement and completion dates and preliminary information relating to scheduling
requirements during construction, estimated times and manner of delivery of equipment and
materials, and preliminary functional plans showing the proposed location of on -site utility
systems and all connections to utility supply lines at the perimeter of the Premises, all necessary
roadways, ramps, pedestrian circulation and parking areas, appropriate landscaping (including the
landscaping of open space) and fences. The parties acknowledge that the Conceptual Plan will
change from time to time based upon requirements in connection with the design and permitting
process and any reference herein to the Conceptual Plan shall mean and refer to those plans as
revised from time to time.
5.3 Construction Plans
5.3.1 Submission.
Lessee shall at Lessee's sole cost and expense, submit to Lessor for Lessor's
approval (not to be unreasonably withheld, delayed, or conditioned and as provided in
Section 5.11) its Construction Plans (defined below) for the commencement and completion of the
construction of the Leasehold Improvements for each Phase of the Project at least two (2) months
prior to Lessee's anticipated start of construction for the applicable Phase. Lessor's approval shall
be in its capacity as the Lessor and owner of the Premises and not in its capacity as a municipality
or other governmental body and shall be limited to determination of consistency with the
requirements of the RFP, this Lease, the Conceptual Plan and Applicable Laws. The plans
submitted shall include final and complete plans and specifications, drawings, calculations and
data setting forth in detail the Construction Work the Lessee proposes to perform, along with the
manner of and detailed critical path timeline for performing the same ("Construction Plans").
Additionally, Lessee's architect or engineer shall include in this submittal a certification that these
Construction Plans are in conformance and consistent with the previously approved Conceptual
Plans. The Construction Plans shall bear the seal of Lessee's architect or engineer. The
Construction Plans shall be in sufficient detail for a contractor to perform the work shown thereon
and shall separately identify each item of work and shall describe, in commercially acceptable
detail, the systems, improvements, fixtures and equipment to be installed by the Lessee. The
Lessee shall submit such additional data, detail and/or information as the Lessor may request in
order to properly review the Lessee's Construction Plans. The Conceptual Plans, the Construction
Plans and all such additional data, detail or information submitted to the Lessor shall be retained
by, and become the property of, the Lessor.
In the event that Lessor disapproves Lessee's Construction Plans, Lessor must do so in
writing delivered to Lessee within thirty (30) days of Lessor's receipt of such plans. Lessor's
notice shall include, without limitation, a reasonable explanation of the reason(s) for Lessor's
objection(s) to allow Lessee to modify accordingly. Lessee shall, within thirty (30) days of receipt
of such notice, or such longer period of time as the City shall determine, in writing, is reasonable
in light of the requested modifications, modify the Construction Plans in accordance with the
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reasons set forth in Lessor's disapproval notice. Lessor shall be required to approve or disapprove
by written notice to Lessee any resubmitted Construction Plans within twenty (20) days of its
receipt of same (so long as any disapproval notice contains the same detail as required above).
The Parties shall reasonably cooperate to resolve any difference regarding the Construction Plans.
If Lessor fails to timely respond, then Lessee shall send a second written notice. If Lessor fails to
timely respond to the second written notice, it shall be deemed a Procedural Delay until such time
that Lessor responds in writing in good faith. Such second written notice shall specify in bold and
capitalized font that failure to respond shall result in a Procedural Delay, as defined in this
Agreement.
5.3.2 Construction Plans Approval.
Following the Lessor's receipt of the Lessee's Construction Plans, the Lessor shall
give its written approval thereto or shall request revisions or modifications thereto in accordance
with Section 5.3.1 above. The Lessor may refuse to grant approval if, in its professional and
reasonable opinion, any of the proposed Construction Work as set forth in the Construction Plans:
(a) is unsafe, unsound, hazardous or improper for the use and
occupancy for which it is designed; or
(b) is designed for use for purposes other than those authorized under
this Lease; or
(c) is inconsistent with the approved Conceptual Plan as modified
pursuant to Section 5.3.1; or
(d) does not materially comply with any other provisions and terms of
the RFP or this Lease, or
(e) does not materially comply with other City of Miami requirements;
or
(0 does not comply with any Applicable Laws (excluding any pending
permits, variances, approvals or consents being sought by Lessee in connection with the work).
Lessor's review process of the Construction Plans set forth herein shall be in addition to
any permitting process required by the City of Miami and other regulatory agencies.
5.3.3 Lessee Solely Responsible.
The Lessee agrees to be solely responsible for any plans and specifications used by
it and for any loss or damages resulting from the use thereof, notwithstanding that the same have
been approved by the Lessor and notwithstanding the incorporation therein of Lessor
recommendations or requirements. In no event shall approval by the Lessor of any plans, whether
the Conceptual Plan, Construction Plans, or otherwise, impose any liability on the Lessor to the
Lessee or any other person for any errors or defects contained in such plans or for the failure of
the Leasehold Improvements or work provided for such plans to comply with any requirements,
any such liability to be that of the Lessee and/or the professionals who prepared such plans. The
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obligations assumed by the Lessee in this Article, as well as elsewhere in this Lease, shall not be
limited, affected, impaired or in any manner modified by the Lessor's approval of any Construction
Plans and supporting specifications and contracts covering Construction Work.
5.4 Possession Date
Lessor shall deliver legal and physical possession of the Premises on the Delivery Date,
subject to all then -existing litigation or other objections in the event the Delivery Date occurs prior
to the Objection Expiration Date. Delivery of possession shall further be subject to Force Majeure
delays. On or before the Delivery Date, the Lessee shall have provided the City Manager or his/her
designee evidence, as may be reasonably satisfactory to the Lessor, that Lessee has sufficient
funding or binding funding commitments to complete the Leasehold Improvements to be
constructed on the applicable Phase of the Premises.
5.5 Development Schedule
The Lessee shall give the Lessor at least sixty (60) days' notice prior to the
commencement of construction. Construction for each Phase shall commence after approval of
the Construction Plans and within two (2) months after the receipt of all necessary permits for the
applicable Phase. All physical improvements for all components must be completed within thirty-
six (36) months after the receipt of the necessary permits for each Phase subject to Force Majeure,
unless Lessee applies for and receives a waiver from Lessor. Lessor, at its reasonable discretion,
may grant a waiver extending the abovementioned schedule if the Lessee demonstrates that: (1) it
has actively and continuously pursued obtaining all required permits; and (2) the delay is a result
of Force Majeure or a result of delays outside of Lessee's control. The phased development must
be substantially completed within sixty (60) months after the Delivery Date, with all building
permits for the last Phase in place no later than forty-eight (48) months after the Delivery Date
subject only to Force Majeure, otherwise the provisions of Section 29-B of the City of Miami
Charter, as amended, shall apply. The parties acknowledge and agree that, if after using diligent,
good faith, commercially reasonable efforts, the Lessee is unable to obtain the applicable
governmental approvals or permits for any portion of the proposed development that Lessee shall
not be in Default hereunder. If the portion of the proposed development that cannot be built is due
to the inability to obtain the necessary permits or approvals and impacts the Fair Market Value of
the Rent payable hereunder, the City shall engage two appraisers to prepare appraisals indicating
the fair market rent based upon the actual Leasehold Improvements for which Lessee was able to
obtain permits and approvals for and construct, as contemplated herein ("Approved Permit
Adjustment"), the Rent shall be adjusted to reflect the Fair Market Value based upon the decreased
development and the parties shall amend the Lease accordingly. The foregoing is not intended to
excuse the Lessee's failure to construct the Leasehold Improvements for any reason other than
Force Majeure.
Lessor agrees, at no out-of-pocket cost to Lessor (other than internal staff time), to
(i) reasonably cooperate with Lessee and all governing authorities in Lessee's applying for and
obtaining all necessary permits, consents, approvals and variances for the construction of the
Leasehold Improvements and development and use of the Premises as contemplated by this Lease
and the Proposal, and (ii) promptly execute or join any and all documents necessary or appropriate
related to applying for and/or obtaining such permits, consents, approvals and/or variances.
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5.6 Review
Upon reasonable prior notice to Lessee, Lessor shall have the right, through its duly
designated representatives, to inspect the Construction Work and the plans and specifications
thereof, at any and all times during the progress thereof and from time to time, in its discretion, to
take samples and perform testing in any part of the Construction Work. Notwithstanding the
foregoing, no such inspection or testing shall unreasonably interfere with the Construction Work
or the use or operation of the Premises by Lessee or its occupants. Lessee shall provide the Lessor
upon request with all available correspondence and material associated with the permitting process
for the Premises, including any available studies and reports produced for the Premises.
5.7 Payment and Performance Bond
Within ten (10) days after the Lessor approves the Construction Plans in writing and Lessee
obtains building permits consistent with the Construction Plans, but in any event prior to the
commencement of any construction, the Lessee shall, at Lessee's and/or Lessee's contractor's sole
cost and expense, furnish the Lessor with a Payment and Performance Bond in substantially the
form prescribed by Section 255.05, Florida Statutes (the "Bond"). Plans, and design and
construction documents will comply with all applicable contractual, legal, and regulatory
requirements including, without limitation, the Florida Building Code. Any contract with a general
contractor or subcontractor entered into by Lessee must contain this Bond requirement.
The Bond shall be issued by a bonding company which shall be approved by Lessor, which
shall not be unreasonably withheld, conditioned or delayed, in an amount equal to one hundred
percent (100%) of the costs to construct the initial Leasehold Improvements (or applicable portion
thereof) 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 of the initial Leasehold Improvements, free of construction or other
liens. The conditions of the Bond shall be to ensure that the Lessee or Lessee's general contractor
will:
(a) Make prompt payments prior to delinquency to all claimants, as defined in
Section 255.05 Florida Statutes, as amended, supplying labor, materials, or supplies, used directly
or indirectly by the Lessee in the prosecution of the Construction Work related to the initial
Leasehold Improvements under this Lease;
(b) Pay Lessor all losses, damages, expenses, costs, and reasonable attorney's fees,
including appellate proceedings, that Lessor sustains because of a Lessee Default under this Lease
pursuant to claims made under Section 255.05, Florida Statutes; and
(c) Perform the guarantee of all obligations of the Lessee's under this Lease with
respect to the construction, maintenance, and the acquisition and installation of the Leasehold
Improvements, as required by the Lease and Applicable Laws.
The Bond may be terminated at such time as the construction and installation of the initial
Leasehold Improvements (or applicable portion thereof) are completed as evidenced by issuance
of a temporary or final Certificate of Occupancy, or other equivalent approval, and reasonably
satisfactory evidence thereof is provided by the Lessee to the City Manager, including certification
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by the Lessee's architect that all requirements of the Bond have been satisfied. The form of the
Bond shall be approved by the City Manager or the Risk Manager as his or her designee and by
the City Attorney as to legal form, which approval shall not be unreasonably withheld, conditioned
or delayed.
5.8 Contractor's Insurance
The Lessee shall require every contractor performing any work pertaining to the Leasehold
Improvements to furnish certificates of insurance, including Builder's Risk insurance, if
applicable, to the reasonable satisfaction of the Lessor in accordance with Exhibit C attached
hereto. Copies of such certificates shall be furnished to the City of Miami Risk Manager, 444 SW
2nd Avenue 9th Floor, Miami, FL 33130. To the extent permitted by the applicable insurance
regulations, the City will be named as an additional insured on such policies.
5.9 Conveyance of Improvements
The Lessee, in consideration of the granting of this Lease, shall upon termination or
expiration of this Lease, convey unto Lessor, free and clear of all liens, title to all Leasehold
Improvements owned by Lessee, including, but not limited to, refrigerators, stoves, freezers, hood
systems, grills, dishwashers, sinks, kitchen work stations and light fixtures that cannot be removed
without causing significant damage to the Improvements. Notwithstanding anything to the
contrary, the personal property of Lessee and its subtenants, licensees and concessionaries shall
not be conveyed to Lessor at the end of the Lease Term unless purchased by Lessor as provided
below.
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 and equipment added to or installed at the Premises by the Lessee during the
Lease Term, including all furnishings, and equipment at Fair Market Value determined by an
appraisal, provided that the Lessor provides written notice to the Lessee at least forty five (45)
days prior to the expiration or termination of the Lease Term of the items it desires to purchase.
Lessor agrees to take any property and/or Leasehold Improvements from Lessee in accordance
herewith in its "AS IS" "WHERE IS" condition as of the expiration or termination of this Lease,
and without any Lessee representation or warranty, express or implied or of any kind whatsoever,
including without limitation, its merchantability or fitness for a particular purpose.
5.10 Premises to Remain Free of Liens
The Lessee shall make, or cause to be made, prior to delinquency payment of all money
due and legally owing to all persons doing any work, including subcontractors, or providing
supplies and equipment in connection with the construction, reconstruction or operation of the
Premises. The Lessee shall have no power or right to and shall not in any way encumber the
Lessor's fee simple interest in the Premises. Other than those caused by Lessor, if any Liens or
Encumbrances shall at any time be filed against the Premises and relate to work or other matters
pertaining to Lessee, during the Lease Term, then Lessee shall, upon acquiring knowledge of such
lien or encumbrance, 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
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contest, to have the same discharged or transferred to bond. If Lessee fails to discharge, contest
or bond the lien within sixty (60) days from the date Lessee obtains knowledge of same, then
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
reasonable verifiable costs incurred by the Lessor in connection with such action, including all
reasonable paralegal or title company fees, costs and expenses. Each party shall bear their own
attorney's fees.
5.11 Lessor's Approval
All Construction 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. City Manager
shall, in writing, designate an Assistant City Manager or other City employee to act as the liaison
between the Lessor and Lessee for all such purposes.
No approval by the City Manager of any Construction Plans furnished under this Lease
pursuant to this section shall relieve Lessee of any obligation it may have at law to file such
Construction 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
Applicable Laws. 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 Construction Plans
are structurally sufficient or in compliance with any Applicable Laws.
ARTICLE VI
CONDUCT OF BUSINESS BY LESSEE
At all times during the Lease Term, Lessee shall manage the Premises with due diligence
and efficiency, in Lessee's sole discretion, subject to the limitations set forth in this Lease, and in
a manner prudent and in accord with the current first-class conditions consistent with similar first
class businesses located in Miami -Dade County with substantially the same Leasehold
Improvements and mix of Lessees. To the extent Lessee operates any retail or restaurant space
within the Premises, Lessee or the applicable Sublessee, licensee, concessionaire shall carry at all
times in the Premises a stock of merchandise of such quantity, character and quality as shall be in
accord with comparable businesses within the locale of the Premises.
ARTICLE VII
MAINTENANCE, REPAIR AND ALTERATION OF PREMISES
7.1 Lessee's Maintenance Obligations
Lessee, at its sole cost and expense, agrees to provide the necessary management and labor
to continuously maintain the Leasehold Improvements in the Premises, including all operating
equipment, utility services, and connections within the Premises. 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 Premises, and the Leasehold
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Improvements remain in good, safe, code compliant and sanitary condition and repair throughout
the Lease Term. Lessee shall be responsible for periodic painting of the interior and exterior of
the Premises and decorating the interior of the Premises, 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 (subject
to and in accordance with the terms and conditions of this Lease) to insure a continuing quality of
maintenance and appearance and physical condition of the Premises commensurate with
maintenance, health, and safety standards reasonably established by the Lessor and Applicable
Law.
7.2 Lessee's Repair Obligation
Subject to the provisions of this Lease regarding casualty damage and condemnation,
except as otherwise provided for in this Lease, Lessee, at Lessee's sole cost and expense, at all
times during the Lease Term, shall make all repairs to all Leasehold Improvements, including,
without limitation, all heating, ventilating and air-conditioning equipment and any other repair or
replacement to the Leasehold Improvements. The Lessee will be responsible for maintenance and
repairs on the Premises throughout the Lease Term. For avoidance of doubt, the Lessee's repair
obligations shall not include (i) any initial installation or provision of city -owned or operated
improvements or (ii) any repair, maintenance or replacement that includes areas outside of the
Premises, or (iii) any repair, maintenance or replacement which is the responsibility of Lessor
under the terms of this Lease and/or Applicable Law.
7.3 Changes/Alterations/Signs
Other than as set forth in the Construction Plans approved in accordance with Section 5.3.2
Lessee shall not install or cause to be installed any permanent exterior signs, exterior doors, walls
or windows without the prior written consent of the Lessor, which consent the City Manager is
hereby authorized to give, and may not unreasonably withhold, condition or delay. Lessor's prior
written consent shall not be required for Lessee to install or cause to be installed master or sub -
meters for telephone, cable television, internet, water, and electricity serving the Premises.
Furthermore, standard directional signage or temporary signage does not require Lessor approval.
Lessee shall only erect exterior signs of type, composition and design in conformance with
the City of Miami Zoning, and City Code and the Sign Regulations of Miami -Dade County, as
applicable. 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 during the Lease Term. As requested in Lessee's proposal, Lessor and Lessee
shall reasonably cooperate in order for Lessor to provide Lessee with off -site entry signage for the
Premises near the bridge into Virginia Key at no additional cost to Lessee except for the cost to
design, construct and maintain such signage. Failure of Lessor to provide such off -site signage,
after a good faith attempt, shall not be deemed a Lessor Default hereunder
No approval by the City Manager of any changes or alterations of the Leasehold
Improvements shall relieve Lessee of any obligation it may have under Applicable Law to file any
required documents with any department of the City or any other governmental authority having
jurisdiction; or to obtain any building or other permit or approval required by Applicable Law in
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connection with such change or alteration. 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 Applicable Laws.
7.4 Capital Expenditure Fund
Commencing on the earlier of the completion of the Leasehold Improvements or the first
day of Lease Year five (5), Lessee shall set aside each Lease Year into a separate interest -bearing
reserve account in Lessee's name, maintained in a federally insured financial institution selected
by Lessee, two and one half percent (2.5%) of the Gross Revenues per year of the immediately
prior Lear Year ("Cap Ex Fund"). Commencing on the twentieth (20th) anniversary of the
establishment of the CapEx Fund and extending through the next ten (10) years, the set aside
amount shall be increased to three percent (3.0%) of Gross Revenues per year of the immediately
prior Lear Year. Commencing on the thirtieth anniversary of the establishment of the Cap Ex Fund
and for the reminder of the Lease Term and any exercised renewal of the Lease Term, the set aside
amount shall be increased to three and one-half percent (3.5%) of Gross Revenue per year of the
immediately prior Lear Year.
The CapEx Fund shall be used by Lessee from time to time as Lessee reasonably
determines and applied toward major repairs, improvements and/or upgrades to the Premises,
including, but not limited to, piling replacements and other substantial mechanical and structural
purchases, upgrades, improvements, as reasonably determined by Lessee in order to keep the
Leasehold Improvements in first class condition and otherwise competitive with other similarly
sized marinas in Miami -Dade County, Florida (collectively, "Capital Improvements"). The CapEx
Fund must be spent for Capital Improvements and shall not be applied to minor repairs due to
regular wear and tear. Lessor shall be entitled to reasonable approval rights regarding which
repairs and improvements qualify as Capital Improvements. Lessee shall not allow the Leasehold
Improvements to become functionally obsolete or exceed their useful life as determined by a report
provided by a qualified structural engineer or state -certified appraiser; such report shall be
completed at Lessee's expense every fifth (5th) year after Lease Year fifteen (15).
Lessee shall receive credit for that portion of any amounts required to be set aside by any
Lender of Lessee for capital items provided the required amount is set aside in an account for
Capital Improvements. Lessee shall maintain financial accounting and "scope of work" records
together with any corresponding documentation of amounts placed in and amounts used from the
CapEx Fund, which shall be subject to review by Lessor, in the manner specified above in sections
4.6 and 4.7 of this Lease.
ARTICLE VIII
INSURANCE AND INDEMNITY
8.1 Insurance on the Premises
In connection herewith, Lessee shall obtain and maintain or cause to be obtained and
maintained in full force and effect throughout the Lease Term, the insurance coverage set forth in
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Exhibit D. Furthermore, Lessee shall cause all contractors in connection with any Construction
Work on the Premises to obtain and maintain throughout the Construction Work the insurance
coverage set forth in Exhibit C. 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 Lease Term, as applicable, such types and
amounts of payment, performance, maintenance, or restoration bond(s) as shall be reasonably
required to be reviewed and approved by the City's Risk Management Department.
The Lessor reserves the right to reasonably amend the herein insurance requirements as
may be applicable in connection with the scope contemplated under this agreement and the types
of policies and coverage and deductible amounts that are commercially reasonably available over
the Lease Term. Lessor further reserves the right to request copies of all applicable policies in
connection with this Lease.
8.2 Delivery of Insurance Policies
All liability, statutory workers compensation and property policies, if applicable, 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 by this Lease shall provide that they shall not be
amended or canceled on less than ten (10) days prior written notice to the Lessor for non-payment
and no less than thirty (30) days prior written notice for other reasons, and all insured beneficiaries
of the policies shall contain waiver of subrogation rights endorsements, as required below, to the
extent commercially available. The Lessor shall have no obligation to pay premiums, make
contributions to the insuring company or any other person, or to satisfy any deductible. On or
before the Lease 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, or 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 that indicates less coverage than required does not constitute a waiver of
the Lessee's obligation to fulfill the insurance requirements herein. Lessor shall appear listed as
an additional insured on all applicable liability policies, and loss payee on any property policy.
The insurance shall be primary and non-contributory and should include all corresponding
endorsements in connection with this Lease, and as required by the City.
8.3 Adjustment of Loss
Any Gross 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 Gross 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 reasonably 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
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requested, plus all previous disbursements made from such Gross 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 or other financial institution
or escrow agent mutually agreeable to Lessor and Lessee. If the amount of the Gross Insurance
Proceeds is less than the cost of the required work, then Lessee shall pay the excess cost; and if
the amount of the Gross Insurance Proceeds is greater than the cost of the required work, then the
excess shall be paid to and belong to the Lessee.
8.4 Indemnification of Lessor
From and after the Lease Date and until the Delivery Date or the Objection Expiration
Date, whichever occurs later, Lessee shall indemnify, defend, and hold Lessor harmless to the
extent provided in Section II.N of the RFP. From and after the later of the Delivery Date or the
Objection Expiration Date, Lessee shall indemnify, defend and hold Lessor harmless from and
against any and all claims actions, damages, liability and expense in connection with personal
injury and/or damage to or destruction of Premises arising from or out of any occurrence in, upon
or at the Premises, or arising from the occupancy or use by Lessee of the Premises or any part
thereof, or occasioned wholly or in part by any act or omission of Lessee, its agents, contractors,
employees, servants, customers, invitees, licensees, sub -lessees or concessionaires, excluding any
claims arising from the negligence or willful misconduct of the Lessor (or any other person acting
on behalf of the Lessor as its contractor, employees, agent or representative). Lessee shall further
indemnify Lessor for any penalties, fines, costs, expenses, suits, liabilities, claims, or damages
resulting from Lessee's failure to perform its obligations in this Lease and/or for Lessee's failure
to comply with Applicable Laws. In case Lessor shall be made a party to any litigation commenced
by or against Lessee and covered by this indemnity provision, then Lessee shall protect and hold
Lessor harmless and pay all of Lessor's costs and attorney's fees for outside counsel engaged by
Lessor in connection with such litigation, and any appeals thereof. Lessee shall have the right to
approve any outside counsel selected by Lessor for which Lessor is subject to reimbursement by
Lessee as provided herein, which approval shall not be unreasonably withheld, denied, delayed or
conditioned. Lessee shall also pay all of Lessor's third -party costs, expenses and reasonable
attorneys' fees that may be incurred or paid by Lessor in enforcing the covenants and agreements
in this Lease inclusive of administrative, litigation and appellate proceedings. Further, Lessee
shall indemnify, defend and hold Lessor harmless from and against any and all claims actions,
damages, liability and expense arising from or caused by the presence, in or about the Premises,
of any Hazardous Materials placed on or about the Premises 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. All Indemnifications and Releases shall survive the expiration or cancelation
of the Lease, as applicable.
8.5 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 insurance actually carried
by Lessee. Lessee shall cause its insurer(s) to issue appropriate waiver of subrogation rights
endorsements to all policies of insurance carried in connection with the Premises, or any part
thereof.
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8.6 Release of Lessor
The Lessee and its assignees, for and in consideration of the leasing and the demise of the
Premises to the Lessee, hereby release, remise and discharge the Lessor, its officers and employees,
of and from all claims, demands, and 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 Premises by Lessee or its sublessees, licensees,
concessionaires, or invitees, etc. and from any and all costs and expenses of Lessee or its assignees
in connection with this Lease, including, but not limited to those costs associated with the
development of the Premises by Lessee or its sublessees, licensees, concessionaires, or invitees,
etc. and acquisition of the Leasehold Improvements by Lessee. 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 2.4 of this Lease, neither the Lessee, nor
its assignees shall seek to recover from the Lessor compensation for reimbursement of, any costs,
losses, fees or expenses incurred by the Lessee, its assignees, sublesees, licensees, concessionaires,
or invitees. The terms of this provision shall expressly be made a part of any future assignment or
mortgage of the Leasehold Interest. This release is not intended to release Lessor from its express
obligations under this Lease or Applicable Laws.
ARTICLE IX
SERVICES AND UTILITIES
9.1 Lessee to Provide and Pay 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 Premises and any Leasehold Improvements, if any, 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 maintenance and operation of the Premises and the Leasehold Improvements as
required under this Lease. The Lessee shall, at its sole expense, procure any and all necessary
permits, licenses or other authorization required for the lawful installation and maintenance upon
the Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in
supplying any such utilities, services or substitutes to the Premises.
9.2 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 to the Premises caused by or resulting from water,
gas or electricity which may leak or flow from the water or gas mains on to any part of the Premises
or the Leasehold Improvements unless directly caused by any grossly negligent or willful, action
or inaction of Lessor. The Lessor shall not be required to make any alteration to any service or
utility system of the Premises on behalf of Lessee. Lessor shall not be liable for temporary failure
of services, and any such temporary failure shall not be deemed to constitute actual or constructive
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eviction, nor entitle Lessee to any abatement or diminution in rent payable under this Lease, unless
directly caused by any grossly negligent or willful action or inaction of Lessor.
Lessor shall not knowingly make or allow to be made after the Lease Date any changes in
any utility service or availability of capacity to, through, under or above the Premises that would
result in a materially disruptive effect on the use or operation of the Premises by the Lessee and
its customers, including but not limited to fiber optics, telephone, electricity, water, storm and
sanitary sewer, gas, heat, ventilation and air conditioning, without the prior written consent of
Lessee, which shall not be unreasonably withheld, conditioned or denied; further, provided, that
the written consent of the Lessee shall not be required for minor, routine and customary,
maintenance, repair, improvement and upgrades made by the utility provider to the utilities it
furnishes, however Lessor shall provide prior written notice thereof to Lessee, to the extent Lessor
has actual knowledge of the same.
ARTICLE X
SUBLEASES, ASSIGNMENTS AND TRANSFERS
10.1 Subleases, Assignments and Transfers
Lessee shall not, at any time during the Lease Term, enter into (i) any sublease, license,
concession, easement, or permit agreement with respect to the entire Premises or (ii) sublease,
assign or transfer this Lease to any third party or parties, which has the effect of granting exclusive
possession to the entire Premises and assigning the rent and other obligations set forth in this Lease
to any third party or parties (in each case, a "Transfer"), without first procuring the prior written
consent of Lessor's City Manager (except as otherwise permitted under this Article X, including,
without limitation, an Acceptable Transfer). The provisions of this Article constitute the sole
means by which Lessee may request Lessor's City Manager's consent to a Transfer. The consent
of Lessor's City's Manager to a Transfer shall not be unreasonably withheld, conditioned or
delayed.
In recognition of the fact that this Lease was awarded to Lessee following a competitive
procurement relying on Lessee's unique attributes, any Transfer of this Lease to any third party or
parties (except as otherwise permitted under this Article X, including without limitation an
Acceptable Transfer) shall require the prior written approval of the City Manager, which he or she
may grant, deny, refuse or consent to such Transfer based on reasonable commercial factors
including the credit worthiness, solvency, good reputation, ability and experience of such proposed
transferee in owning commercial properties provided such assignee engages an Acceptable
Operator. If approved, any such Transferee shall be required to sign a written agreement assuming
all terms and conditions of the Lease, without exception in a form reasonably satisfactory to the
Lessor, including Lessor's City Attorney's approval as to legal form and correctness and
compliance with Applicable Laws. Any such attempted Transfer 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 transferee and will additionally be a default by Lessee of this Lease.
It is agreed that all terms and conditions of this Lease shall extend to and be binding on all
transferees, assignees or Sub -lessees as may be approved by Lessor and shall be for a period of
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time equal to or less than the Lease Term. Lessor reserves the right to directly terminate the rights
and interests of any transferee or Sub -lessee under any Transfer for any cause for which Lessee's
Leasehold Interest may be terminated. Lessee shall reimburse Lessor, as Additional Rent, all
verifiable costs and expenses which Lessor reasonably incurs by reason of or in connection with a
Transfer, and all negotiations and actions with respect thereto (including, but not limited to, any
appraisals, surveys, etc.), such Additional Rent to be due and payable within thirty (30) days of
receipt of a statement of such costs and expenses from Lessor.
Notwithstanding the foregoing, consent of the Lessor shall not be required for any
Subleases (whether or not such Sublessee is an affiliate of Lessee as defined in this Lease) provided
such Subleases provide for Rent at Fair Market Value and do not violate the terms of the RFP or
of this Lease or of any Applicable Laws. Lessee shall promptly submit executed copies of all
Subleases to Lessor.
10.2 Procedure for Transfer
Subject to the provisions of Section 10.1, should Lessee desire to Transfer the Lease,
Lessee shall, in each instance, give written notice of its intention to do so to Lessor's City Manager
at least sixty (60) days prior to the effective date of any such proposed Transfer, specifying in such
notice the nature of such proposed Transfer and the proposed date thereof, identifying the proposed
Sub -lessee, Assignee or transferee, and including all other information necessary in the City's sole,
yet reasonable, discretion, for the City Manager to evaluate the proposed transferee as an
Acceptable Operator according to the requirements of this Lease and the RFP. Such notice shall
be accompanied by a copy of the proposed Transfer agreement and any other documents or
financial information Lessor may reasonably require in order to determine the suitability of the
Assignee or Transferee. If requested by Lessor and/or the City Manager, Lessee shall provide to
such requesting party copies of the Transfer documents and amendments thereto. Based on the
reasonableness factors set forth in this Article X, the City Manager shall either (i) withhold consent
to the Transfer, together with a detailed explanation for such denial, or (ii) consent to such Transfer
upon the terms and subject to the conditions provided for in this Article, in each case, by sending
written notice to Lessee of its intent to do so within sixty (60) days of receipt of Lessee's notice
and all required documentation in connection therewith. If Lessee's request to a Transfer is denied,
the City Manager shall state the reasons for such disapproval in the notice sent to Lessee. Lessee
acknowledges and agrees that the imposition of the conditions provided herein requiring the City
Manager's consent is reasonable. In the event that City Commission approval is required by this
Lease (as determined by the City Attorney per Applicable Laws), 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. If consent to a Transfer is not required, whether pursuant to
Section 10.5 or as may otherwise be stated within this Lease, the Lessee shall notify the Lessor in
writing of such Transfer (for informational purposes only) within thirty (30) days after the date of
Transfer.
10.3 Additional Consideration Payable to Lessor
If Lessor consents to any Transfer, then Lessor shall be entitled to proceeds from any such
Transfer as specifically set forth herein. Lessor's participation shall be four percent (4%) of the
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gross proceeds (less existing debt of Lessee encumbering the Lessee's interest in the Premises
and/or Leasehold Improvements held by third party unaffiliated lender(s)) from the Transfer if the
Transfer is completed within Lease Year one (1) through five (5); and five percent (5%) of the
gross proceeds if the Transfer is completed between Lease Year six (6) and the expiration or
termination of the Lease (in each case, the "Transfer Fee"). Notwithstanding the foregoing, the
Transfer Fee shall not be payable in connection with any Acceptable Transfers. Furthermore, no
sales tax shall be due to Lessor on the payment of the Transfer Fee. Assignee's or transferee's
records shall be kept in accordance with Article IV. Additionally, Lessor reserves the right to
examine transferee's books and audit transferee's entire records in accordance with Article IV of
this Lease. The Transfer Fee will apply even if the Transfer or Assignment is to a related,
subsidiary, or affiliated entity, unless such is an Acceptable Transfer as defined in section 10.5
below.
The Transfer Fee shall be perpetual and shall apply to any successive Transfer procured by
the terms of this Lease for as long as this Lease is active, including modifications and extensions,
if any. The acceptance by Lessor of the payment of rent following any Transfer prohibited by this
Article shall not be deemed to be consent by Lessor to any such Assignment or Transfer, nor shall
the same be deemed a waiver of any right or remedy of Lessor hereunder.
10.4 Definitions
As used in this Article, the term:
"Transfer" shall be deemed to include:
1. 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, but excluding any Sublease, license, or concession
agreement for any portion of the Premises, which does not result in any change of operational
control by Lessee;
2. any transfer of more than forty-nine percent (49%) of the ownership interests of
Lessee or of the ownership interest of any Owner, other than an Owner whose interests are publicly
traded, if the transfer results in a transfer of more than forty-nine percent (49%) of the beneficial
ownership of Lessee or if the transfer results in a change in the day-to-day management or control
of the Premises from either Suntex or Christoph;
3. 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.
"Owner" means:
any person, firm, corporation or other entity which owns, directly or indirectly, legally or
beneficially, more than fifteen percent (15%) of the aggregate ownership interests of the Lessee,
but shall not include any holder of an interest in Owner whose shares are publicly traded.
"Owner whose shares are publicly traded" means:
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1. an Owner 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
2. 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.
10.5 Acceptable 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 permitted
pursuant to this Article X of this Lease, 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, conditioned or delayed. Notwithstanding anything to the contrary,
the following Transfers shall be permitted hereunder without the written approval of Lessor or the
City Manager and without payment of the Transfer Fee (each being an "Acceptable Transfer"):
(a) Any Transfer directly resulting from the foreclosure of Lessee's Leasehold Estate,
provided that such purchaser or grantee is an institutional investor (including a bank or other
similar financial institution) 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 Premises, shall have entered into an agreement for
the management and operation of the Premises with an Acceptable Operator or is itself an
Acceptable Operator;
(b) Any Transfer for estate planning purposes of a direct or indirect owner of Lessee;
(c) Any Transfer required by any Lender to Lessee;
(d) Any Transfer in order for Suntex to maintain its REIT status or to otherwise comply
with the applicable tax regulations governing the same (e.g. subleasing certain portions of the
Premises generating operating income to an affiliate of Lessee provided that the Lessor receives
the same rent as if the Lease to the affiliate of Lessee did not exist); or
(e) Any Transfer by any affiliate of Suntex to any affiliate of Christoph and vice versa.
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 and/or the creation of one or
more classes of ownership interests and the offering of ownership interests to the public for
purchase, shall not constitute a Transfer hereunder and shall not require the consent of the Lessor
or its City Manager.
Any consent to a Transfer shall not waive or abridge any of the City Manager's rights to
consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null
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and void and of no force and effect. Any and each Transferee must be an investor that meets the
definition of or engages an Acceptable Operator as provided in 10.5(a) above.
10.6 Information as to Owners, Etc.
If applicable, 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 an
appropriate and authorized officer of the Lessee, setting forth (to the extent known) the full names
and addresses of material holders of ownership interests in Lessee, and the extent of their holdings,
and in the event any other parties have a material beneficial ownership interest, 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 shall not be required to be
furnished with respect to the holders of an ownership interest of any Owner whose interests are
publicly traded. As used in this section 10.6, the term "material" shall mean ownership of not less
than a ten percent (10%) interest in Lessee.
10.7 Effectuation of Transfers
No Transfer shall be effective unless and until:
(1) all then due and payable Rents, taxes, assessments, impositions, insurance,
permitting and other charges required to be paid by the Lessee to Lessor under this Lease shall be
paid 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
(2) the proposed transferee, by written instrument reasonably satisfactory to the City
Manager (subject to approval as to legal form by the City Attorney) and in a form recordable
among the land records for any transfer other than an Acceptable Transfer, 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, including the additional guarantees required under Section 16.5 of this
Lease, as of the date of such Transfer; provided, however, that any transferee shall not be required
to assume any liability under this Lease with respect to any matter arising prior or subsequent to
the period of such transferee's actual ownership, partial or whole, of the Leasehold Estate (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 relieve or release the Lessee from liability for the performance
of all of the obligations of Lessee under this Lease, except as expressly permitted by this Lease.
10.8 Criteria for Consent for Transfer
Lessor may, at its sole but reasonable discretion, condition its consent to an Assignment,
Sublease or Transfer upon satisfaction of the following conditions, which shall be deemed
reasonable [or such other reasonable conditions as the Lessor may require]:
(1) The proposed transferee shall be an Acceptable Operator or an institutional
investor;
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(2) The proposed transferee shall satisfy the qualification requirements imposed upon
Lessee and set out in the original RFP to the extent permitted by Applicable Law;
(3) The proposed transferee shall have no open and expired permits, liens in violation
of Applicable Laws, unpaid fines, unsafe structures, defaults, unpaid debts, or any ongoing
lawsuits against the Lessor;
(4) The net assets of the proposed transferee immediately prior to the Transfer shall not
be less than the greater of: (a) the net assets of the transferor whose interest is being transferred
as of immediately prior to the Transfer; (b) the net assets of the Lessee on the Lease Date; or (c) an
amount reasonably necessary to discharge Lessee's remaining obligations hereunder;
(5) Such Transfer shall not adversely and materially affect the quality and type of
business operation which the Lessee has conducted on the Premises theretofore;
(6) The proposed transferee shall possess qualifications for the Lessee's business
substantially equivalent to Lessee or 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;
(7) The proposed transferee shall agree to continue to operate the Premises similar to
the use(s) conducted at the Premises pursuant to this Lease;
(8) The proposed transferee shall assume in writing, in a form reasonably acceptable
to Lessor, and in compliance with Applicable Laws, all of Lessee's obligations hereunder as of the
date of such Transfer, and Lessee shall provide Lessor with a copy of documents evidencing such
Transfer;
(9) The proposed transferee shall submit to a credit check and other background checks
as is reasonably necessary, in Lessor's discretion, for Lessor to evaluate the proposed transferee,
in Lessor's sole but reasonable discretion. Failure or refusal to submit to said credit and
background checks shall be an automatic disqualification of the potential transferee;
(10) The Transfer shall be made for no less than fair market value which would be paid
at any "arm's length" transaction; and
(11) Lessee shall pay to the Lessor any due, but unpaid Rent.
10.9 Liability of Lessee
If a proposed transferee does not meet all of the criteria set forth in this Article, Lessor, at
its sole option, may require Lessee or other transferor transferring such interest in the Leasehold
Estate to remain liable under this Lease for the performance of all obligations of Lessee within this
Lease, including, but not limited to, payment of Rent due under this Lease. If a proposed transferee
does meet the criteria set forth in this Article X, then Lessee shall be released from any and all
remaining liability and/or obligations set forth in this Lease from the effective date of such
Assignment or Transfer, but shall remain liable and responsible as provided by this Lease and
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Applicable Laws for performance of duties including, without limitation, payment of Rent,
accruing prior to the effective date of such Transfer.
10.10 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 consent by Lessor to any such Transfer, nor shall the same
be deemed to be a waiver of any right or remedy of Lessor hereunder.
10.11 Transfers of the Lessor'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 form of or with respect to the Lessor's reversionary or fee
interest in the Premises, or any part thereof, or any interest therein, or any contract or agreement
to do any of the same, to any purchaser, assignee, mortgagee, or trustee. Lessor hereby agrees to
incorporate the terms and conditions set forth in this Lease or in any agreement or contract with
such purchaser, assignee, mortgagee, or trustee.
10.12 Mortgages of Leasehold Interest
10.12.1 Right to Mortgage. All rights of Lessee pursuant to this Lease are
mortgageable, pledgeable, assignable or transferable, in accordance with the terms of this Lease.
Any successor to, or assignee of, the rights of Lessee hereunder (whether as the result of voluntary
assignment, foreclosure, assignment in lieu of foreclosure or otherwise) shall hold or be entitled
to exercise the rights of Lessee hereunder as fully as if named as such party herein. No party
exercising rights as Lessee hereunder shall have or incur any liability for the acts of any other party
which previously exercised or subsequently shall exercise such rights. In no way shall Lessee
have any authority to mortgage the fee ownership interest belonging to Lessor. Lessor shall
reasonably cooperate with any lender of Lessee.
10.12.2 Requirements for Mortgage. In addition to the requirements
specified throughout this Lease, Lessee may pledge, hypothecate, or otherwise mortgage the
Leasehold Estate or its interest therein from time to time with unaffiliated third party institutional
lenders such as banks, investment funds, financial institutions or life insurance companies,
provided such lender has a minimum net worth of $100,000,000 at the time the loan is made. Any
other financing shall require the written permission of the City Manager, the permission for which
shall not be unreasonably withheld, conditioned or delayed.
10.12.3 Notice. In the event Lessor gives a notice of default under this Lease
to Lessee, Lessor shall also send a copy of such notice to any holder of a Leasehold Mortgage (each
a "Mortgagee"), provided such Mortgagee or Lessee shall have sent Lessor a notice informing it
of the existence of such Leasehold Mortgage and the name of the person or officer and the address
to which copies of the notices of defaults are to be sent. Such Mortgagee shall have an additional
thirty (30) days to cure any default that is capable of being cured with the payment of money, and
an additional thirty (30) days for all other defaults (and such additional time, as to non -monetary
defaults, as the Mortgagee in good faith and with reasonable diligence either attempts to cure such
default or commences and thereafter prosecutes with reasonable diligence, if not enjoined or
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stayed, appropriate proceedings for foreclosure or other enforcement of the liens securing its
financing). Initiation of foreclosure proceedings against Lessee shall constitute "diligence" by a
Mortgagee hereunder so long as such foreclosure proceedings are continuously pursued and all
Rent and Additional Rent is being paid to Lessor in accordance with this Lease during the
pendency of any foreclosure proceeding. The foregoing requirements to give notice of default to
a Mortgagee and allow such Mortgagee an opportunity to cure such default shall not delay the
exercise of self- help remedies by Lessor available under this Lease or Applicable Law in the event
of an emergency.
10.12.4 Rights of Mortgagees. Once Lessor has received a notice of any
Leasehold Mortgage as specified in the preceding section, then, from and after receipt of such
notice:
(a) No voluntary termination of this Lease by both parties shall be
effective unless consented to in writing by such Mortgagee; and any material amendment or
material modification of this Lease or the exercise by any party of any option to terminate this
Lease without the written consent of such Mortgagee shall be voidable as against such Mortgagee
at its option. If any Mortgagee shall fail to respond to any written consent under this section within
thirty (30) days after the receipt by such Mortgagee of such written request (which written request
shall make specific reference to this section), the Mortgagee shall be deemed to have denied its
consent to such request. No notice required to be given to Lessee by Lessor shall be effective as
to such Mortgagee unless and until a copy thereof has been given to such Mortgagee.
(b) Lessor shall accept performance of any and all of Lessee's
obligations hereunder, including the obligations to pay rent, from any such Mortgagee and the
performance of such obligation by such Mortgagee shall be deemed to have been a cure effected
by Lessee. Lessor hereby consents to the entry onto the Premises by any such Mortgagee for the
purpose of effecting the cure of any Lessee Default. In the event of a Lessee Default, any
Mortgagee may affect the cure of such default by foreclosing its Leasehold Mortgage, obtaining
possession of the Premises and performing all of Lessee's obligations hereunder.
(c) If it shall be necessary for any such Mortgagee to obtain possession
of the Premises to effect any such cure of a Lessee Default under this Lease, then Lessor shall not
commence any proceeding or action to terminate the Lease Term if (a) such Mortgagee shall have
informed Lessor within the grace period applicable to such Mortgagee that such Mortgagee has
taken steps to foreclose its Leasehold Mortgage to obtain possession of the Premises, (b) all due
and payable rent and all monetary obligations required to be paid to Lessor by Lessee under the
Lease shall be paid and all other provisions and requirements of this Lease which are capable of
being observed and performed without obtaining possession of the Premises are so observed and
performed while any such foreclosure, other action or other remedy is being prosecuted by any
such Mortgagee and for so long thereafter as such Mortgagee shall have obtained possession of
the Premises, and (c) such Mortgagee shall be diligently prosecuting such foreclosure or
cancellation and attempting to effect a cure of the Lessee Default. Nothing herein contained shall
be deemed to require the Mortgagee to continue with any foreclosure or other proceedings, or, in
the event such Mortgagee shall otherwise acquire possession of the Premises, to continue such
possession, if the Lessee Default in respect to which Lessor shall have given the notice shall be
remedied.
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(d) Lessor agrees that in the event of the termination of this Lease by
reason of any Lessee Default or rejection of this Lease in a bankruptcy proceeding effecting
Lessee, and if Lessor has, prior to such termination, been given written notice of the name and
address of such Mortgagee, Lessor will enter into a new agreement for the Premises with any
Mortgagee or a wholly owned subsidiary of Mortgagee for the remainder of the Lease Term,
effective as of the date of such termination, at the rent and upon the terms, options, provisions,
covenants and agreements as herein contained, provided:
(i) Such Mortgagee shall make written request upon Lessor for
such new agreement prior to or within ten (10) days after the date of such termination and such
written request is accompanied by payment to Lessor of all sums then due to Lessor hereunder, if
any outstanding;
(ii) Such Mortgagee or its nominee shall pay to Lessor at the
time of the execution and delivery of said new lease any and all sums which would at that time be
due hereunder but for such termination; and
(iii) That in the event there exists more than one Mortgagee, the
first Mortgagee shall have the first option to become Lessee under the provisions of this section,
with priority over the second Mortgagee.
(e) No Mortgagee shall become liable under the agreements, terms,
covenants or conditions of this Lease unless and until it becomes the owner of the Leasehold
Estate.
All of the provisions contained in this Lease with respect to Leasehold Mortgage and the
rights of Mortgagees shall survive the termination of this Lease for such period of time as shall be
necessary to effectuate the rights granted to all Mortgagees by the provisions of this Lease.
Nothing herein contained shall require any Mortgagee or its nominee to cure any default
by Lessee hereunder, unless Mortgagee accepts assignment and assumption; however this shall
not preclude the City from seeking a judicial remedy for any such losses or breaches of the Lease
in a manner consistent with the terms of this Lease.
ARTICLE XI
COMPLIANCE WITH LAWS
11.1 Compliance with Laws
Lessee shall, at Lessee's sole cost and expense, comply with all Applicable Laws, and all
applicable permitting and regulatory requirements, rules, regulations, codes, ordinances, and
written policies now in force, or which may hereafter be in force, pertaining to Lessee or its use of
the Premises in all material respects, and shall faithfully observe in the use of the Premises or in
the performance of any alterations (including, without limitation, the construction of any
Leasehold Improvements) all Applicable Laws now in force or which may hereafter be in force.
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11.2 Labor Peace Agreements
Lessee shall require, or otherwise incorporate the requirement into any and all Subleases,
that all contractors and employers of employees hired to staff Hospitality Operations (defined
herein as any services provided at hotels, motels, bars, clubs, cafeterias, lodging, and food and
beverage at convention or conference facilities) on the Premises, be a signatory to a "Labor Peace
Agreement" covering the employees who will staff such hospitality operations.
The Labor Peace Agreement must be a valid agreement that includes a No -Strike Pledge
prohibiting the labor organization and its members from engaging in any picketing, work
stoppages, boycotts, or any other economic interference with the hospitality operation for as long
as the Lessor determines that its revenues are at material risk from a potential labor dispute. The
Labor Peace Agreement shall cover all hospitality operations (other than construction, alteration
or repair of the Premises) that are conducted by lessees or tenants or under management
agreements, where the contract amount is reasonably expected to be in excess of $120,000. The
Labor Peace Agreement shall not include any provision that would require or compel an employee
to be a member of any labor organization.
A contracting party may be relieved of this obligation if: (a) the labor organization places
conditions upon its No -Strike Pledge that the City Commission finds, after notice and public
hearing, to be arbitrary or capricious; or (b) the City Manager makes a written finding containing
the reasons for supporting the conclusion that a labor peace agreement should not be required as it
would not be practicable or is not advantageous to the City, which finding must be approved by
the City Commission, after notice and public hearing. Lessee shall comply with this provision to
the extent not prohibited by law or any other provision within this or any other governing
agreement.
11.3 Minimum Wage Requirements
Lessee shall comply and endeavor to make its sublessees comply with all minimum wage
requirements applicable to the operations on the Premises. Lessee shall comply with this provision
to the extent not prohibited by Applicable Law or any other provision of this Lease or any other
governing agreement.
ARTICLE XII
ENVIRONMENTAL LIABILITY
12.1 Definition of Terms
For purposes of this Article XII the following terms shall have the meaning attributed to
them herein:
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,
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state or local statutes, laws, ordinances, codes, rules, regulations, orders or decrees including, but
not limited to, all Applicable Laws.
2. `Environmental Laws" shall include all applicable laws, rules and ordinances,
existing now or in the future during the Term, as amended, modified, supplemented, superseded
or replaced at any time during the Term, that govern or relate to: the existence, cleanup and/or
remedy of contamination of property; the protection of the environment from spilled, deposited or
otherwise emplaced contamination; the control of hazardous or toxic substances or wastes; the use,
generation, discharge, transportation, treatment, removal or recovery of Hazardous Materials; or
otherwise regulating the impact of human activities on the environment.
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
Premises.
4. "Clean Up" shall mean any remediation and/or disposal of Hazardous Materials at
or from the Premises which is ordered by any federal, state, or local environmental regulatory
agency.
12.2 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 Premises or any portion thereof by the Lessee, its agents, employees,
contractors, sub -lessees, licensees, or invitees except as may be customarily used and required to
conduct Lessee's business or as may be used in compliance with Environmental Laws. Lessee
shall not permit any activities on the Premises that 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 and all Clean Up. Lessee's
obligation under this section shall survive the expiration or earlier termination of this Lease for a
period of two (2) years.
12.3 Survival of Obligations
The respective rights and obligations of Lessor and Lessee under this Article XII shall
survive the expiration or termination of this Lease for a period of two (2) years.
ARTICLE XIII
DAMAGE OR DESTRUCTION OF PREMISES
13.1 Definitions
For the purposes of this Article XIII, the following words shall have the meanings
attributed to them in this Section 13.1:
(a) "Completely Destroyed" means the destruction of the safe, leasable use or
occupancy of a substantial portion of the Premises under this Lease which damage cannot
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reasonably be repaired, restored or replaced within eighteen (18) months from the date on which
the damage occurred.
(b) "Partial Destruction" means any damage to the Premises which damage can
reasonably be repaired, restored or replaced within eighteen (18) months from the date on which
the damage occurred.
13.2 Duty to Repair, Restore or Replace Premises after Damage
In the event of damage by fire or otherwise of the Premises including any machinery,
fixtures or equipment which are a part of the Premises, the Parties agree as follows:
In the event of Partial Destruction of the Premises, within sixty (60) calendar days after the
later of (i) the damage (subject to reasonable delay and/or Force Majeure) or (ii) receipt by Lessee
of the necessary building permits to rebuild the Leasehold Improvements or (iii) receipt of the
Gross Insurance Proceeds, the Lessee shall use the Gross Insurance Proceeds available, together
with Lessee's own funds (if the Gross Insurance Proceeds are insufficient) to commence and
diligently pursue to completion within one year from the date after commencement of the
construction of the Leasehold Improvements (subject to reasonable extension due to Force
Majeure or delays by Lessor in the repair, restoration, or replacement of the damaged or destroyed
portion of the Premises as required in order for the Lessee to commence the restoration of the
Leasehold Improvements or the type and scope of required repair), the repair, restoration or
replacement of the damaged or destroyed portion of the Leasehold Improvements ("Restoration
Work"), and this Lease shall remain in full force and effect, with no abatement in Rent. Lessee
shall have the right to terminate this Lease without penalty as of the date Lessee delivers possession
of the premises to Lessor if the casualty occurs during the last five (5) years of the Lease Term.
In the event the Premises are Completely Destroyed at any time during Lease Term, Lessee,
in its sole discretion, shall have the option to select whether to terminate this Lease within one
hundred eighty (180) days of the damage by delivering written notice to Lessor of its intention to
terminate, at which time Lessee shall deliver possession of the Premises to Lessor as if it was the
natural expiration of the Lease Term and both Parties shall be released from all obligations under
this Lease except those that expressly survive termination. Rent shall be prorated as of the date of
the Lessee's evacuation. In the event the Lessee shall determine not to terminate this Lease, then
at the Lessee's sole cost and expense, (together with Gross Insurance Proceeds available for that
purpose), Lessee shall commence and diligently pursue to completion the Restoration Work, in
accordance with the provisions of Section 13.3 below, and Lessee shall complete the Restoration
Work within three (3) years (subject to reasonable extension due to Force Majeure or delays by
Lessor in the repair, restoration, or replacement of the damaged or destroyed portion of the
Premises as required in order for the Lessee to commence the restoration of the Leasehold
Improvements) from later of: (i) the date the damage occurred, or (ii) receipt of the necessary
building permits to reconstruct the Leasehold Improvements to substantially similar condition
existing immediately prior to the casualty and (iii) receipt of Gross Insurance Proceeds, and this
Lease shall remain in full force and effect, with no abatement in Rent. If all Leasehold
Improvements cannot be restored due to no fault of Lessee (i.e., change in law, inability to obtain
necessary governmental permits or approvals), the Base Rent shall be equitably abated on a going -
forward basis based on Fair Market Value of the restored Leasehold Improvements.
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13.3 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 the same as possible to the
condition that existed immediately prior to the damage, and shall be performed in accordance with
the provisions of Article V applicable to the construction of any 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.
13.4 Intentionally Deleted
13.5 Lessee's Right to Terminate
If Lessee elects to exercise the option given under Subsection 13.2, to terminate this Lease,
then any and all Gross Insurance Proceeds paid for damage or destruction of the Premises shall be
applied as follows:
First toward payment of the cost to remove debris in accordance with Applicable Laws;
Second to the respective parties, assuming a termination of the Lease as of the date of the
casualty, taking into account the Lessor's interest in the Leasehold Improvements at the end of the
Lease Term.
13.6 Payment for Construction of Restoration Work
Except as otherwise provided for in this Article XIII, all Gross Insurance Proceeds shall be
applied by the Parties to the payment of the cost of the Restoration Work to restore the entire
Premises, together with any soft costs related thereto, and the Lessee shall make any additional
deposits with an escrow agent, as required in Section 8.5, if applicable.
13.7 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.
13.8 Unused Insurance Proceeds and Deposits
After the payment for all Restoration Work costs, including without limitation soft costs
related thereto, if any Gross Insurance Proceeds or sums deposited with an escrow agent or Lessor
in connection with the Restoration Work 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, as provided in Section 8.3, 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 such remaining funds shall be applied first towards any payable but delinquent Rent,
and the remaining balance promptly paid to the Lessee.
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ARTICLE XIV
EMINENT DOMAIN
14.1 Total Condemnation
In the event that all of the Premises (or such portion thereof as shall, in the good faith
opinion of Lessee, render it economically unfeasible 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 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. Any damages resulting to Lessor and Lessee, respectively, and to
their respective interests in and to the Premises, the Leasehold Improvements, and in connection
with this Lease (which amount of damages shall be calculated based on the remaining term of the
Lease and any option periods without consideration of the termination of the Lease as provided in
this Section), 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.
14.2 Partial Condemnation
In the event less than all of the Premises 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
the Premises not so taken or conveyed, subject to the Rent adjustment set forth in Section 14.3.
Lessee shall to the extent the proceeds of the Gross Condemnation Award are made available to
it, pursuant to the terms hereof, remodel, repair and restore the remaining portion of the Premises
so that it shall be comparable to the Premises prior to the condemnation; provided, however, that
in so doing, Lessee shall not be required to expend more than the amount of any Gross
Condemnation Award actually received by Lessee. Provided also that Lessee shall be entitled to
use a portion of Lessee's allocated Gross Condemnation award for actual out-of-pocket costs
incurred by Lessee and paid to unaffiliated third parties as a result of the condemnation, subject to
the review and approval of Lessor in its reasonable discretion. Lessee shall be permitted to
terminate this Lease without penalty if the partial condemnation occurs during the last five (5)
years of the Lease Term.
The Gross Condemnation Award allowed to Lessor and Lessee shall be paid to and
received by the Parties as follows:
(a) There shall be paid to the Lessor the unimproved value of the portion of the land so
taken and Lessor's reversionary interest in the improvements so taken. Lessor shall further be paid
an amount by which the Rent has been reduced by the taking;
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(b) 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 Premises have been reduced by the taking after any
payment required by the Lease;
(c) There shall be paid to the Lessee the amount required to complete the remodeling
and repairs to the Premises;
(d) The Lessor and Lessee shall be paid portions of the balance of the Gross
Condemnation Award or awards, if any, which are allocable to and represented by the value of
their respective interest in the Premises as found by the court in its condemnation award.
14.3 Adjustment of Rent Upon Partial Taking
In the event a part of the Premises 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 pursuant to this Lease shall be paid by Lessee to
the Date of Taking or conveyance in lieu thereof, and after such date the Base Rent for the
remainder of the Lease Term shall be reduced on an equitable basis based upon reduction in Gross
Revenues generated from the Premises.
14.4 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 Gross Condemnation Award made in
respect to the Premises in a condemnation proceeding shall be deposited with an escrow agent
selected by the Lessor to be disbursed for the cost of restoring the Premises.
14.5 Temporary Taking
In the event that all or any portion of the Premises 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 perform 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 Premises. If the period of governmental occupancy extends beyond the termination
of the Lease Term, the Lessor shall be entitled to receive that portion of the Gross Condemnation
Award allocable to the period beyond the termination of the Lease Term. The amount of any Gross
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 Gross Condemnation Award does not separately determine 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 sub -section.
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ARTICLE XV
PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
15.1 Payment of Taxes and Impositions; Contest Rights
From and after the Delivery Date, Lessee shall pay all ad valorem and similar taxes,
surcharged, levies, charges, assessments, and impositions levied against the Premises before any
fine, penalty, interest or costs are added for non-payment. All such ad valorem and similar taxes,
governmental levies, charges, impositions and assessments shall be payable by Lessee directly to
the taxing authority prior to delinquency (without penalty) of such taxes, provided that Lessor has
advised Lessee of its share of such taxes and assessments in a written notice, including a copy of
the tax bill prior to delinquency.
Lessee shall have the right, at its own cost and expense, to contest the validity or amount
of real estate taxes or other taxes levied against the Premises as permitted by Applicable Law,
either in its own name or in the name of Lessor with Lessor's reasonable cooperation, at no cost
to Lessor. Lessee shall be entitled to any and all resultant refund, rebate or reduction and such
amount(s) shall neither be deemed to be part of the Gross Revenues for the applicable Lease Year
to the extent such rebate, refund or reduction was an expense of Lessee, nor included in the
calculation thereof once the final decision regarding the real estate tax or other tax levied has been
made and not appealed or once all appeals are concluded in Lessee's favor.
15.2 Installment Payments of Ad Valorem Taxes and Impositions
Lessee agrees that the Premises or any interest thereon may be 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 ad valorem taxes or other Impositions are payable or may, 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 Lease Date and part of which is included
after the Delivery 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 Term, 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 Term 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 Lease Term, and the Lessor shall pay
the remainder, if applicable.
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15.3 Payment in Lieu of Taxes
The Lessee shall be responsible for the following payments or for payments in lieu of
taxes ("PILOT") during the use period in the event the Premises is deemed exempt from ad
valorem real estate taxes; in which case, Lessee will pay the City of Miami an annual PILOT in an
amount equal to the last year's taxes payable to the City of Miami (or any other governmental
body or agency making a claim upon the City of Miami for its portion of such taxes) prior to the
exempt status. The PILOT will increase on each anniversary of the Lease Date at a rate equal to
three percent (3%). If Lessee is required to pay ad valorem taxes on the Property, it shall not be
required to pay the PILOT. Lessee shall receive a dollar for dollar credit for all sums paid by
Lessee under the PILOT against any amounts payable with respect to ad valorem taxes such that
Lessee shall never pay more than the annual amount of the ad valorem taxes otherwise payable.
15.4 Proof of Payment
The Lessee shall furnish to Lessor, within thirty (30) days after the date whenever any
Imposition is actually paid by or on behalf of the Lessee, official receipts of the appropriate taxing
authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment.
ARTICLE XVI
DEFAULT
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 Rent,
as and when due and payable in accordance with this Lease, and such default continues for more
than ten (10) days after the sum is due (and for the first late payment in each 12 month period of
time Lessor has provided written notice of such failure and Lessee has failed to pay the same within
ten (10) days after receipt of such written notice);
(b) In the event Lessee shall cease to operate its business, unless in connection with
alterations, renovations, casualty or Force Majeure event, for a period of fifteen (15) consecutive
Business 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 or contested in good faith within
sixty (60) 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 for this
Lease and/or substantially all the assets of Lessee and is not a Transfer hereunder otherwise
approved by Lessor;
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(e) In the event of an appointment by any court of a receiver or other court officer of
Lessee's Premises and such receivership is not dismissed or contested in good faith within
sixty (60) days from the date of such appointment;
(f) In the event Lessee removes, attempts to remove, or permits to be removed from
the Premises, except in the usual course of trade, a substantial portion of the Leasehold
Improvements (furnishings, fixtures, and equipment) installed or placed upon the Premises by the
Lessee during the Lease Term or if such item has become obsolete, and is not replaced by a newer
version, or if the same level of service is not affected, or no adverse change occurs;
(g) In the event Lessee, before the expiration of the Lease Term, and without the
written consent of Lessor, abandons the possession of the Premises, or uses the same for purposes
other than the purposes for which the same are hereby leased or as otherwise permitted by Lessor,
and such default continues for more than thirty (30) days after written notice of the default from
the Lessor to the Lessee. In the event an execution or other legal process is levied upon a
significant portion of the goods, furniture, effects or other personal property of Lessee brought on
the Premises, or upon the interest of Lessee in this Lease, and the same is not satisfied, dismissed
or contested in good faith within sixty (60) days from such levy;
(h) In the event Lessee defaults in the due performance or observance of any Lease
term, covenant, condition or provision, other than the payment of Rent and other than provisions
for which default is specifically defined, including without limitation failure to maintain insurance
coverage in effect, failure to obtain permits or approvals required by law, or failure to timely pay
taxes, fees, surcharges, other impositions when required by law, etc. and such default continues
for more than thirty (30) days 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; or
(i) failure of the Lessee to complete the Construction Work for the Leasehold
Improvements contemplated by the Phasing Plan in the time frames required by this Lease and
Applicable Law, subject to Force Majeure or Approved Permit Adjustment.
16.2 Remedies of Lessor
During any Lessee Default, Lessor shall have the right, after the expiration of the applicable
notice and/or cure periods and after compliance with all Applicable Laws, at the sole discretion of
Lessor, to terminate this Lease upon providing Lessee with five (5) days' written notice and an
opportunity to cure. Such notice shall be in addition to any notice or cure period required in
Section 16.1 or elsewhere in this Lease or by Applicable Law. If such Lessee Default remains
uncured upon the expiration of such five (5) day period, this Lease shall automatically terminate
and the Parties shall have no further obligations under this Lease except those that expressly
survive survival. Lessor may terminate this Lease and retain the applicable portion of the Security
Deposit in accordance herewith irrespective of any suit or action brought by Lessee and the time
period required for termination of this Lease shall not be tolled by the filing of a suit or action to
the extent permitted by Applicable Law.
Additionally, during any Lessee Default, Lessor may, at its option, from time to time,
without terminating this Lease, re-enter and re -let the Premises, or any part thereof, as the agent
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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
reasonable attorneys' fees and real estate commissions paid in connection with such re -letting and
collection, and then the balance towards the payment of all Rent as it becomes due and payable to
Lessor hereunder. If the rent received by the new lessee does not cover the aforementioned
expenses and Rent, then, at Lessor's option, Lessee shall pay Lessor any deficiency within
thirty (30) days after written 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 Premises 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 Premises in excess of the Rent provided in this Lease.
If any Lessee Default occurs, Lessor shall have the right to obtain injunctive and
declaratory relief, temporary and/or permanent, against Lessee for such Lessee Default, and to
further obtain specific performance of any term, covenant or condition of this Lease, including but
not limited to the appointment of a receiver to operate Lessee's business at the Premises.
During any Lessee Default, 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 Premises 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.
No such re-entry or taking possession of the Premises 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 termination, Lessor may at all times
thereafter elect to terminate this Lease for such previous Lessee 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, unless caused by Lessor's gross negligence or
willful misconduct.
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.
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.
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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
term 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 Premises or to re -let same.
16.4 Late Payment Fee
Any installment of Rent not received within five (5) days after the due date shall be subject
to a late payment fee of five percent (5%) of the amount due ("Late Fee"). In the event that any
check, bank draft, order for payment, or negotiable instrument given to Lessor by Lessee for any
payment due and owing under this 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
Lessee Default during the Lease Term, Lessor shall be entitled to make an administrative charge
to Lessee of twenty-five and 0/100 dollars ($25.00) for each notice of a valid Lessee Default.
Lessee recognizes and agrees that the charges 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 of the costs
of Lessor in the administration of the Premises resulting from the events described herein, 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.
16.5 Additional Guarantees
In the event of a Lessee Default which directly or indirectly causes Lessor to suffer
damages, and thereafter Lessee fails to cure or remedy the respective Lessee Default in accordance
to the terms of this Lease, either: (1) Lessee's Principal, or (2) a Qualified Replacement
Guarantor (defined below), shall assume responsibility as a personal guarantor ("Guarantor") and
shall pay the amounts due and/or perform the obligations required of Lessee. Guarantor may, at
Lessor's option, be joined in any action or proceeding commenced by Lessor against Lessee in
connection with and based upon the failure of Lessee to perform. Alternatively, upon a Lessee
Default, at Lessee's sole option, Lessee may deposit an amount equal to three times the amount in
dispute into an escrow account, bond, or similar financial reserve to serve in place of the
Guarantor ("Default Escrow Funds"). The Default Escrow Funds shall be used by the Parties
solely to fulfill the obligations of Lessee as they become due under this Lease. Upon the
termination or expiration of this Lease, any remaining Default Escrow Funds shall be returned to
Lessee within three (3) Business Days.
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For purposes of this Section 16.5, the term "Qualified Replacement Guarantor" shall mean
any person, partnership, corporation, trust or other legal entity who (i) has a net worth of at least
ten million dollars ($10,000,000.00) or such greater amount as Lessor Principal as of the Lease
Date, and (ii) owns or controls, or is owned or controlled (directly or indirectly) by or under
common ownership with Lessee, Suntex, Christoph or Principal.
16.6 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.
16.7 Lessor Default
In the event that Lessor shall at any time be in default of the terms of this Lease and any
such default shall continue for a period of sixty (60) days after written notice to Lessor, and Lessor
shall not thereafter cure or commence to cure the default, Lessee shall have the right at any time
thereafter (but in no event shall be obligated) to cure such default for the account of Lessor, and
Lessor shall promptly reimburse Lessee for any amount paid and any expense or contractual
liability so incurred within thirty (3) days after written demand. In the event Lessor fails to timely
reimburse Lessee hereunder, Lessee may offset any amounts rightfully due it against future Rent
payments. In the event the Lessor default is of the nature of an emergency, is a threat to any life
safety issues or materially impairs Lessee from operating its business on the Premises, Lessee may
immediately commence the cure referenced above upon written notice to Lessor and Lessor shall
reimburse Lessee as provided above. In the event of any default by Lessor hereunder beyond any
applicable notice and/or cure period, Lessee may, at any time thereafter, from time to time, bring
an action for damages and/or injunctive relief, to the extent permitted by Applicable Law.
ARTICLE XVII
ACCESS
17.1 Right of Entry
Lessor and Lessor's agents shall have the right to enter the Premises at all reasonable times
upon reasonable prior written 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 Premises 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 Premises or any part thereof, however Lessor shall not unreasonably
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interfere with Lessee's or any Sublessee's, licensee's or concessionaire's business operation or the
Construction Work.
17.2 Access Agreements
At Lessor's request, Lessee shall enter into an agreement in form and content reasonably
acceptable to Lessee, to provide access ("Access Agreement") to individuals or entities ("Users")
for events including, but not limited to, the National Marine Manufacturers
Association ("NMMA") International Boat Show ("Boat Show"), and any other event permitted
by Lessor and approved by the City of Miami Commission on the property immediately adjacent
to the Premises ("Adjacent Premises Agreement"). No Adjacent Premises Agreement entered into
or modified after the Lease Date shall materially impair Lessee's use of the Premises for its
intended use. Lessee shall be permitted to directly discuss with NMMA and such other Users
regarding the location of the Access Areas and the terms and conditions of such use, however,
Lessee shall not be entitled to change a use fee or rent therefor. Any damage to the Premises
caused by User's use under the Access Agreement shall promptly be repaired to the satisfaction of
Lessee at such User's expense. Users shall be required to carry a commercially reasonable amount
of insurance, naming Lessee and its appropriate affiliates as additional insureds, and shall
indemnify Lessee form any injuries or damages arising out of such User's use under the Access
Agreement. Temporary structures shall be allowed to be constructed by Lessee in the Access Area
so long as they do not materially interfere with the Boat Show, pursuant to the agreement between
the City and NMMA/Boat Show as of the Lease Date. The use of the Premises by NMMA or any
User shall not impair Lessee's ability to use the Premises for its intended use or negatively impact
Lessee's or any Sublessee's, licensee's or concessionaire's business operations, including but not
limited to vehicles, pedestrian access for customers, invitees and tenant to the Leased Premises or
Construction Work during the Boat Show. All Access Agreements shall contain the rights and
obligations of all the parties set forth in this Section 17.2 and be duly executed by all Users prior
to accessing the Premises.
ARTICLE XVIII
DAMAGE TO LESSEE'S PROPERTY
18.1 Loss and Damage
Unless caused by a negligent act or omission of Lessor or Lessor's officers, employees, or
agents, the Lessor shall not be responsible for any damage to or loss of 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
Premises, by theft or otherwise. Unless caused by willful misconduct or gross negligence of Lessor
or Lessor's officers, employees, or agents, Lessor shall not be liable for any injury or damage to
persons or Premises resulting from fire, smoke, explosion, falling plaster, steam, gas, electricity,
water, rain, or leaks from any part of the Premises 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 patent or latent defect in the Premises. All
property of Lessee kept or stored on the Premises shall be so kept or stored at the risk of Lessee
only and Lessee shall hold Lessor harmless from any and all claims arising out of damage to same,
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including subrogation claims by Lessee's insurance carriers, unless caused by willful misconduct
or gross negligence of Lessor.
ARTICLE XIX
HOLDING OVER & SUCCESSORS
19.1 Holding Over
In the event Lessee remains in possession of the Premises after the expiration of the Lease
Term, Lessee, at the option of Lessor, shall be deemed to be occupying the Premises as a Lessee
at sufferance at a monthly rental equal to one and a half (1.5) times the monthly Rent of the
preceding Lease Year (including Percentage Rent, 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
Premises 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 terms 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.
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, except as otherwise
expressly provided for in this Lease, and, in the event Lessor sells its interest in the Premises and
the purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved of
all further obligations hereunder.
ARTICLE XX
EQUAL EMPLOYMENT OPPORTUNITIES
20.1 Equal Employment Opportunities
The Lessee agrees that during the Lease Term; (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 definitive 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
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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 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.
20.2 Community Small Business Enterprise
Lessee shall work towards achieving Community Small Business Enterprise ("CSBE")
goals, employing the requirements of the Community Small Business Enterprises set forth in the
City of Miami Procurement Ordinance, codified in Chapter 18, Article III, City Code, as a model;
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 Miami -Dade County certified CSBE companies, the
disabled and veterans. Such plan shall include a set of positive measures taken to insure utilization
of CSBE companies when practicable and nondiscrimination in the work place as it relates to
hiring, firing, training and promotion.
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 shall not engage in discriminatory practices and shall not discriminate in connection with
Lessee's use of the Premises on account of race, national origin, ancestry, color, sex, religion, age,
handicap, familial status, marital status or sexual orientation. Further, should the Lessee introduce
or have existing membership rules for patrons at the Premises, that it will comply with the non-
discrimination provisions incorporated within § 18-188, § 18-189, § 18-190, and § 18-191 of the City
of Miami Code as incorporated herein by reference.
ARTICLE XXI
MISCELLANEOUS
21.1 Accord and Satisfaction
No payment by Lessee or receipt by Lessor of a lesser amount than the Rent or other
amount due as specified herein shall be deemed in satisfaction of any such amounts owed; nor
shall any endorsement or statement on any check remitting partial payment or any letter
accompanying any partial payment be deemed an accord and satisfaction of Lessee's debt. 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.
21.2 Public Records
Lessee shall comply with Section 119.0701, Florida Statutes, including without limitation:
(1) keep and maintain public records that ordinarily and necessarily would be required by the City
to perform this service; (2) provide the public with access to public records on the same terms and
conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise
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provided by law; (3) ensure that public records that are exempt or confidential and exempt from
disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining
public records and transfer, at no cost, to the City all public records in its possession upon
termination of this Lease and destroy any duplicate public records that are exempt or confidential
and exempt from disclosure requirements; and, (5) provide all electronically stored public records
to the City in a format compatible with the City's information technology systems.
Notwithstanding the foregoing, Lessee may withhold and/or mark certain business records, trade
secrets and other proprietary information as confidential and any such information shall be
excluded from public records disclosure to the fullest extent permitted by applicable law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS BY PHONE AT (305)416-1883; BY EMAIL AT
PUBLICRECORDS@MIAMIGOV.COM; OR IN PERSON AT 444 SW 2ND AVENUE, 9TH
FLOOR, MIAMI, FL 33130.
21.3 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 Premises and there are no covenants, promises,
conditions or understandings, either oral or written, between them other than those set forth herein.
All representations, either oral or written, made between the Parties shall be deemed to be merged
into this Lease. No course of prior dealings between the Parties or their officer's 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. Except as herein otherwise provided, no
subsequent alteration, termination, change or addition to this Lease shall be binding upon Lessor
or Lessee unless reduced to writing and signed by the Parties. Any amendments to this Lease must
be approved with the same formalities as were used in its execution; providing, however, that the
City Manager may administratively execute non -material (i.e. non -substantial) amendments of the
Lease on behalf of the Lessor in the exercise of his professional discretion. 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.
21.4 Independent Parties
It is understood and agreed by the Parties hereto that this Lease does not create a fiduciary
or other relationship between the Parties, other than as 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.
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21.5 Notices
Any notice by the Parties required to be given must be served by certified mail return
receipt requested, nationally recognized overnight courier service, or by hand delivery, addressed
to Lessor or Lessee at the following addresses (or such other address as any party may designate
to the other party in writing from time to time):
If to Lessor at:
City Manager
City of Miami
444 SW 2nd Avenue, loth Floor
Miami, Florida 33130
With copies to:
City of Miami City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
City of Miami
Director, Department of Real Estate
and Asset Management
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
If to Lessee at:
c/o RCI Marine
300 Alton Road, Suite 303
Miami Beach, Florida 33139
Attn: Robert W. Christoph
With a copy to:
Bilzin Sumberg Baena Price &
Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131-3456
Attn: Carter McDowell, Esq.
Suzanne Amaducci-Adams,
Esq.
and
Virginia Key SMI, LLC
c/o Suntex Marina Investors LLC
17330 Preston Road, Suite 220A
Dallas, Texas 75252
Attention: Bryan C. Redmond
All notices given hereunder shall be effective and deemed to have been given upon receipt
by the party to which written notice is being given, said receipt being deemed to have occurred
upon hand delivery or posting, or upon such date as the postal authorities shall show the notice to
have been delivered, refused, or undeliverable, is evidenced by the return receipt or proof of
deliver. 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. Notices required hereunder may be given by the Parties' respective attorneys.
21.6 Captions and Section Numbers
The captions, section numbers, and article numbers appearing in this Lease are inserted
only for 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.
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21.7 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 deemed invalid or unenforceable by a Court with jurisdiction,
the remainder of this Lease shall not be affected thereby and each term, covenant or condition of
this Lease shall be valid and enforceable to the fullest extent permitted by law.
21.8 Estoppel Certificate
Each party agrees that it will, at any time and from time to time, within ten (10) Business
Days following written notice by the requesting party specifying that it is given pursuant to this
section, execute, acknowledge and deliver to the requesting party 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 known and/or currently
claimed by the certifying party and whether or not to the knowledge of the certifying party, the
requesting party is in default in performance of any, covenant, agreement or condition contained
in this Lease, and if so, specifying each such default of which certifying party has knowledge.
It is agreed that nothing contained in the provisions of this Section shall constitute waiver
by requesting party of any default existing as of the date of such notice and, unless expressly
consented to in writing by requesting party and, certifying party shall still remain liable for the
same. There will be a two hundred fifty dollar ($250.00) regulatory fee per Section 166.221,
Florida Statutes for each request made of Lessor for each estoppel certificate requested in
accordance herewith, payment in full shall be made at the time of the request. No estoppel
certificate shall be issued without payment of such fee.
21.9 Waiver
Failure on the part of either party to 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.
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.
21.11 No Discrimination
It is intended that the Premises shall be operated in a manner whereby all customers,
employees, lessees and invitees of the Lessee shall have the opportunity to obtain all the goods,
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services, accommodations, advantages, facilities and privileges of the Premises 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 Premises 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.
21.12 Governing Law, Venue, & Attorney's Fees
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. Additionally, all disputes civil action or legal proceeding arising out of or
relating to this Lease shall be brought in the courts of record in Miami -Dade County. Each party
shall bear their own attorney's fees in civil actions between them arising out of this Lease.
21.13 Waiver of Counterclaims
Lessee shall not impose any permissive counterclaim(s) 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, however, Lessee may assert any compulsory counterclaims in such action.
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.
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, and/or Lessee's use or occupancy of the Premises.
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 Lessee shall peaceably and quietly hold, occupy and enjoy the Premises 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 Premises leased herein, or by
persons with title superior to the Lessor, its successors and assigns.
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 Premises in good repair and condition,
reasonable wear and tear, casualty and condemnation excepted.
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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 Lessor, or, by virtue of
a transfer of either party's interests herein, assume the rights and obligations of the Lessee or
Lessor hereunder, the liability of each such individuals, corporations, partnerships or other
business associations (or any combination of two or more thereof) to perform all 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 shall be deemed as having been given to all of them.
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.
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.
21.20 No Liability for Act of other Party
Lessee shall not sign any contract or 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 or agreed to herein, 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, for the management and operation of the Premises;
neither Lessor nor Lessee shall be obligated by or have any liability under any agreements or
representations made by the other that are not expressly authorized in writing. 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 Term.
21.21 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 Applicable Law to restaurant operators or proprietors.
21.22 Review of Statements
All charges due from Lessee to Lessor for which Lessee must be billed by Lessor must be
billed within twelve (12) months following the expiration of the calendar year in which the charge
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is incurred by Lessor (except for Impositions under appeal which must be billed within twelve (12)
months after the final, non -appealable adjudication of such appeal) or Lessor will have waived its
right to reimbursement which may have been established in any paragraph to this Lease unless
such under payment was discovered in an Audit performed pursuant to Section 4.8.
21.23 Brokers
Lessor and Lessee each represents that it has not dealt with any broker or salesperson in
connection with the negotiation or execution of this Lease or any other person or entity who would
create any liability for the payment of a commission, finder's fee or other remuneration other than
CBRE, Inc. ("Broker"), and each agrees to indemnify and hold the other party harmless against all
claims, losses, causes of actions, demands, liability, damages, costs and expenses (including,
without limitation, reasonable attorneys' fees and costs through all levels of proceedings) for its
respective breach of the foregoing representation. Lessee shall pay to Broker a commission in an
amount not to exceed one million four hundred and seventy-five dollars ($1,475,000.00) in full
and final satisfaction of any fees due to Broker in connection with this Lease.
21.24 Consents
Wherever in this Lease the consent or approval of one party is required for an act of the
other party, unless otherwise specified, such consent or approval shall not be unreasonably
withheld, delayed or conditioned. The Parties agree that each of the terms, covenants and
conditions hereof agreed to be observed or performed by each party shall constitute concurrent
conditions of exchange. Any consent or approval by Lessor hereunder shall be in its capacity as
landlord and owner of the Premises and not in its capacity as a municipality or governmental entity.
21.25 Memorandum of Lease
Upon the occurrence of the Lease Date, at the request of either party to the other, each of
the Parties agree to execute, deliver and record in the public records in the county in which the
Premises is located a Memorandum of Lease in substantially the form attached hereto as
Exhibit G.
21.26 City as Lessor Only
Nothing in this Lease shall impose any obligations or requirements on the City of Miami
acting in its regulatory capacity. The obligations of the Lessor set forth in this Lease are not
intended to limit or otherwise affect the ability of the Lessor, acting in its governmental capacity,
to exercise its police powers and regulatory responsibilities with respect to the Premises and any
activities within the Premises.
21.27 Access to Premises. Prior to the Delivery Date, Lessee shall have reasonable
access to the Premises during business hours in order to conduct tests, make plans and for other
purposes consistent with the Lessee's performance under the Lease. Lessee shall use
commercially reasonable efforts not to disturb any occupants or tenants at the Premises during
such entry.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
LESSOR:
CITY OF MIAMI, a municipal corporation of
the State of Florida
By:
Emilio T Gonzalez, Ph.D.
City Manager
ATTEST:
By:
Todd B. Hannon
City Clerk
APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM &
REQUIREMENTS: CORRECTNESS:
By: By:
Ann -Marie Sharpe
Risk Management Director
Victoria Mendez
City Attorney
[SIGNATURE PAGE TO LEASE AGREEMENT]
Page 64
ATTEST:
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
The undersigned hereby executes this Lease to
confirm its obligations under Section 16.5 hereof.
LESSEE:
VIRGINIA KEY, LLC, a Florida limited
liability company
By: Virginia Key Parent, LLC, a Florida
limited liability company, its Manager
By:
Name:
Title:
GUARANTOR:
VIRGINIA KEY PARENT, LLC, a Florida
limited liability company
By:
Name:
Title:
[SIGNATURE PAGE TO LEASE AGREEMENT]
Page 65
EXHIBIT A
SURVEY/LEGAL DESCRIPTION OF PREMISES
Page 66
EXHIBIT B
MONTHLY GROSS REVENUE REPORT
[TO BE INSERTED PRIOR TO EXECUTION]
Page 67
EXHIBIT C
CONTRACTOR INSURANCE REQUIREMENTS
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations $1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Endorsement
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
B. Endorsements Required
City of Miami listed as an Additional Insured
Page 68
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
USL&H, if applicable
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. Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $10,000,000
Aggregate $10,000,000
City of Miami listed as an additional insured
Excess Follow Form over all applicable liability policies contained herein
Note: this does not apply to stand-alone policies for professional liability or
pollution
VI. Excess Liability
Each Occurrence
Policy Aggregate
$10,000,000
$10,000,000
Excess Follow Form over primary and umbrella limits. City listed as an additional insured
VII. Owners & Contractor's Protective
Each Occurrence $1,000,000
General Aggregate $1,000,000
Page 69
City of Miami listed as named insured
VIII. Payment and Performance Bond $Full Value
City of Miami listed as an Obligee
IX. Protection and Indemnity (if applicable)
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
Jones Act Included
City of Miami Listed as an additional insured
X. Builder's Risk
Causes of Loss: All Risk of Direct Physical Damage or Loss
Valuation: Replacement Cost
Deductibles: 5% Wind, Hail, and Flood, $25,000 AOP
Coverage Extensions included
City of Miami listed as an additional insured and loss payee
XI. Professional Liability
Limits of Liability
Each Claim $5,000,000
Policy Aggregate $5,000,000
Retro Date Included
XII. Pollution Liability (If Applicable) $2,000,000
City of Miami listed as an additional insured
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or
material change, or in accordance to policy provisions.
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Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class V" as to
Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best
Company, Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance are
subject to review and verification by Risk Management prior to insurance approval.
Page 71
EXHIBIT D
LEASEHOLD INSURANCE REQUIREMENTS
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
B. Endorsements Required
City of Miami listed as an additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident
B. Endorsements Required
City of Miami included as an Additional Insured
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$1,000,000
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III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
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. Umbrella Policy (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $5,000,000
Aggregate $5,000,000
City of Miami listed as an additional insured
Coverage is excess over all applicable liability policies evidenced herein including
liquor.
VI. Liquor Liability $1,000,000
City of Miami listed as an additional insured
VII. Crime Coverage (If Applicable) $100,000
Forgery and Alteration
Including M&S, Robbery or Safe Burglary
City of Miami listed as loss payee
Page 73
VIII. Plate Glass Scheduled
IX. Property
Commercial Property Insurance covering the Building and Business Personal Property,
including fixtures, equipment, improvements, and betterments, including coverage for
docks piers, or wharfs, dry storage and wet storage facilities owned by LESSEE. The
Commercial property form shall, at a minimum, cover the perils insured under the ISO
Special Causes of Loss Special Form (CP 10 30), or a substitute form providing equivalent
coverages written on an All Risk or Direct Physical Loss or Damage basis with no
coinsurance, including wind and named storm coverage and hail subject to a maximum of
5% deductible depending on market conditions, along with earth movement and
flood (flood shall be limited to the maximum available through NFIP/Federal government).
Coverage should be included for debris removal, and demolition and increased cost of
construction that are caused by legal requirements regulating the construction or repair of
damaged facilities or subject property, including an ordinance and law endorsement, in an
amount of not less than the replacement cost of the property insured and leasehold
improvements (exclusive of foundation and excavation costs), trade fixtures and floor
coverings. In addition, the policy should afford coverage for sprinkler leakage, extended
coverage including vandalism and malicious mischief, as well as coverage for time element
with limits covering the annual rent and debt service payment for the leased improvements,
and including ordinary payroll and contingent business income with 180 day extended
period of indemnity. Boiler and machinery coverage if applicable, covering repair and
replacement of all boilers and machinery servicing or benefiting the leasehold
improvements including use and occupancy coverage in amount acceptable to the Lessor.
Coverage enhancements or extensions as provided by the coverage form to, builders risk
exposures, limited pollution, and ingress and egress coverage among others. The amount
of insurance shall equal the full estimated replacement cost of all real and business personal
property owned by the LESSEE.
The City shall be included as an additional insured and loss payee under the commercial
property insurance.
X. Marina Operators Legal Liability $2,000,000
City of Miami listed as an additional insured on this coverage
XI. Pollution Liability
Limits of Liability
Each Occurrence $5,000,000
Policy Aggregate $5,000,000
City of Miami listed as an additional insured
Page 74
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or
material change, or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class VII" as
to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best
Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are
subject to review and verification by Risk Management prior to insurance approval.
Page 75
EXHIBIT E
PHASING PLAN
[SUBJECT TO REVISION FOR CONSISTENCY WITH RFP AND PROPOSAL]
Phase 1:
Build 282 dry slips in a mixed -use building (western most of 3 proposed buildings) which
building will include an additional commercial space (where retail and the dock master's
office relocated) and new parking spaces;
• Use of the existing 280 surface parking spaces at east end of the Project;
• Renovate the two existing commercial buildings containing approximately 19,000 sq. ft.
for use as commercial space which may include restaurant;
• Install fuel tanks, renovate existing fueling areas; and
• Renovate existing boat launch.
Phase 2:
Build an additional 180 dry slips (for total of 462), in the second mixed use building (center
building) and add second water launch facility. This building will contain approximately
5,000 sq. ft. of commercial space and additional parking spaces; and
Renovate existing docks and/or build new docks containing 40 wet slips in south portion
of the basin.
Phase 3:
Build an additional 288 dry slips in a third mixed use building for a total of 750 slips;
Build approximately 8,000 sq. ft. of commercial space (include boat and marine service);
Build approximately 162 wet slips; and
Build additional surface parking spaces for a total of approximately 630 on -site spaces.
Note: This projected schedule (i) has been developed to attempt to maximize the available
facilities during the permitting and construction phases of the Leasehold Improvements, (ii) is
subject to Force Majeure, and (iii) is subject to Lessee obtaining (a) legal and physical possession
of the Premises, and (b) the land use approvals, zoning designation and permits for the construction
of the Leasehold Improvements to be constructed by Lessee and the use of the Premises by Lessee.
It is based upon the collective experience of the project team and best practice estimates for
permitting timing for each of the phases of the Leasehold Improvements. Where experience shows
that portions of the project permitting will likely take longer than other portions, they have been
separated out into separate phases in order to expedite the prior phases and not delay those potions
Page 76
that should be able to be permitted more quickly. All of these timeframes are estimates that are
substantially dependent upon the timeliness of third party reviewing agencies. Each of the time
frames also assume there are no third -party challenges or interventions in the permitting or
construction processes. Any third -party involvement could change these timeframes significantly
and could lead to denial of some permits. Lessee reserves the right to develop the Phases out of
order.
Page 77
EXHIBIT F
MEMORANDUM OF LEASE
[PARTIES TO DISCUSS MOL TERMS]
Prepared by and after recording return to:
Suzanne Amaducci-Adams, Esq.
Bilzin Sumberg Baena Price & Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE (this "Memorandum ") is entered into as of the
day of , 201_, between The City of Miami, a municipal corporation of the State of
Florida ("Lessor"), and Virginia Key, LLC, a Florida limited liability company ("Lessee").
RECITALS:
A. Lessor and Lessee have entered into that certain Lease Agreement dated as of
, 201 (the "Lease").
B. The parties hereto desire to file this Memorandum of Lease in the Public Records
of Miami -Dade County, Florida, to provide record notice of the Lease and the terms and conditions
contained therein with respect to that certain real property located in Miami -Dade, County, State of
Florida, and more particularly described in the attached Exhibit A.
NOW, THEREFORE, for good and valuable consideration and in further consideration of
the rents reserved and the covenants and conditions more particularly set forth in the Lease, Lessor
and Lessee hereby agree as follows:
1. Incorporation of Recitals; General Provisions. The above recitals are true and
correct and are incorporated herein as if set forth in full. All capitalized terms in this Memorandum
shall have the same meaning as in the Lease, except if otherwise noted.
Page 78
2. Award Date. The Award Date, as defined in the Lease, is
3. Delivery Date. The Delivery Date, as defined in the Lease, is
4. Rent Commencement Date. The Rent Commencement Date, as defined in the
Lease, is , 201
5. Lease Term. The Lease Term means that period of time commencing on the Rent
Commencement Date and ending at 11:59 p.m. eastern time on , 20.
6. Option to Renew. Lessee shall have two (2) consecutive renewal options of
fifteen (15) years each, subject to the terms and conditions contained in the Lease.
7. Purpose. This Memorandum is not a complete summary of the terms of the Lease
and is made by the parties hereto for the purpose of evidencing and providing actual and
constructive record notice of the Lease and the lease terms set forth herein. This Memorandum is
for information purposes only and it is subject to all of the terms, provisions and conditions of the
Lease, all of which are incorporated herein by reference. Nothing contained in this Memorandum
shall be deemed to in any way modify, supplement, negate or otherwise affect any of the terms,
provisions or conditions of the Lease. In the event of any inconsistency between the terms of the
Lease and this Memorandum, the terms of the Lease shall prevail. The rights and obligations of
Lessor and Lessee shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns.
[Signature Page Follows]
Page 79
The parties hereto have executed this Memorandum to be effective as of the date first above
written.
WITNESSES:
Print Name:
Print Name:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
LESSOR:
CITY OF MIAMI
By:
The foregoing instrument was acknowledged before me this day of
201, by , as of The City of Miami, on behalf of The City of Miami.
He/she () is personally known to me or ( ) produced a driver's license as identification.
Notary Public, State of Florida
My commission expires:
[SIGNATURE PAGE TO MEMORANDUM OF LEASE]
Page 80
WITNESSES: LESSEE:
VIRGINIA KEY, LLC, a Florida limited
Print Name: liability company
Print Name:
STATE OF
COUNTY OF
)
) SS:
)
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of , 201_,
by , as of Virginia Key, LLC, a Florida limited
liability company, on behalf of such company. He/She ()is personally known to me or
U produced a driver's license as identification.
Notary Public, State of
My commission expires:
[SIGNATURE PAGE TO MEMORANDUM OF LEASE]
Page 81
EXHIBIT A
LEGAL DESCRIPTION
[TO BE INSERTED PRIOR TO EXECUTION]
Page 82
EXHIBIT G
PERMANENT IMPROVEMENTS
[TO BE INSERTED PRIOR TO EXECUTION]
Page 83