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HomeMy WebLinkAboutExhibit BTitu of ARTHUR NORIEGA V City Manager October 3, 2023 Delivered via Certified Mail, Email, and Posting Certified Mail No. 7022 3330 0001 2879 3600 Veronica Lacasa Bayside Seafood Restaurant, Inc. Blue Green Bay Corp. (Atlantica) 3501 Rickenbacker Cswy Miami, FL 33149 veronicalacasaAao1.com RE: Notice of Default, Demand for Payment and Termination Dear Veronica Lacasa: This correspondence is in reference to the Revocable Permit dated December 21, 1994 ("Permit") issued by the City of Miami ("City") to Bayside Seafood Restaurant, Inc. ("Permittee"), for the use of the City of Miami property located at 3501 Rickenbacker Causeway, Miami, Florida ("Property"). This is an official notice of default, demand for payment and official notice of automatic termination if there is failure to cure all defaults within 10 days of this letter on October 13, 2023. For your convenience, a copy of the Revocable Permit is enclosed with this correspondence. Permittee is in default under the Revocable Permit for failure to comply with the terms of the Peiiuit, including but not limited to: (1) Default under Section 4. a. Failure to pay the monthly fee and percentage of monthly gross proceeds plus any applicable state tax and associated late fees and interest (Sections 4, 5, 9, 19, and 20 of the Revocable Permit). An audit was initiated by the City, and pursuant to the Draft Audit Report, the Permittee owes the City past due use fees totaling approximately $225,117 in base and percentage rents, utility fees and sales tax for the time frame between January 1, 2018, through December 31, 2022. This past due amount is exclusive of any late fees, interest owed. b. For the period commencing January 01, 2023, to the date of this letter, payment is outstanding in the amount of $2,901.30 and remain due and payable and must be remitted to the City of Miami in addition to any outstanding percentage rent payments. Please submit total outstanding payments to the City in the amount of $228,018.30. (2) Default under Section 5 and Section 9. a. Failure to obtain consent from the City of Miami as property owner to undertake improvements and alterations to the Property as Permittee. b. Permittee has undertaken demolition, construction, repairs, alterations and/or improvements to the Property without proper approvals by the City and has not obtained DEPARTMENT OF REAL ESTATE AND ASSET MANAGEMENT 444 S.W. 2nd Avenue, 3rd Floor, Miami, Florida 33130 / (305) 416-1450 / Fax: (305) 416-2156 or provided any building permits for the work done in violation of the Code of the City of Miami. c. As of the date of this letter, the Permittee is in violation of the Miami -Dade County's Department of Regulatory and Economic Resources Division of Environmental Management (RER-DERM) as it relates to the grease traps. (3) Default under Section 14. a. Failure to maintain the required insurance pursuant to the terms of the Permit. If there is failure to cure all defaults within 10 days of this letter, this agreement is automatically terminated and Permittee shall without demand promptly and peacefully surrender, remove all personal items and terminate its operations at the Property in accordance with the terms of the Permit. Nothing in this letter shall serve to waive or abridge any right or remedy the City has under the law. Please note that the City reserves the right to seek all payments and any and all applicable remedies against Permittee. Should you have any questions, please contact me at AFrey@miamigov.com (305) 416-1458. Respectfully, DocuSigned by: AA Ire, i Frey 9AB076E0CF7E4C0... Anarew rrey Director of Real Estate and Asset Management cc: Arthur Noriega V, City Manager, City of Miami anoriega@miamigov.com Larry M. Spring, Jr., CPA, CFO, Assistant City Manager, City of Miami Ispring@miamigov com Victoria Mendez, City Attorney, City of Miami vmendez@miamigov.com Isiaa Jones, Assistant City Attorney, City of Miami ijones@miamigov com Aldo Bustamante, Real Estate Manager, City of Miami abustamante@miamigov.com Enclosure Page 2 • ATTEST: REVOCABLE PERMIT ISSUED BY THE • • CITY OF MIAMI . TO BAYSIDE SEAFOOD RESTAURANT, INC. FOR THE USE OF THE RESTAURANT AREA LOCATED AT MARINE STADIUM MARINA (f/k/a Virginia Key Marina) 3501. RICKENBACKER CAUSEWAY MIAMI, FLORIDA Issued this a‘ day of b Qz , 1994. i't TTY H . • I CITY CLERK APPROVED AS TO FORM AND CORRECTNESS: SI ICJ � •�l{` t�,l� �1 —�'c 1 :..,:� 1N � 0. 11 A 0 11 . 1 :' I Y _. 1 L. : . r 1 CITY OF MIAMI, a municipal corporates on of the State of Florid CESAR H. ODIO CITY MANAGER APPROVED AS TO INSURANCE REQUIREMENTS: FRANK ROLLASON, DIRECTOR RISK MANAGEMENT DEPARTMENT CONTENTS 1. DESCRIPTION OF AREA 2. TIME 3. PURPOSE AND USE - 4. FEE 5. LAWS APPLICABLE 6. UTILITIES 7. NO ASSIGNMENT OR TRANSFER 8. CONDITION OF AREA t9. IMPROVEMENTS 10. MAINTENANCE 11. CITY'S RIGHT OF ENTRY 12. RISK OF LOSS 13. INDEMNIFICATION 14. INSURANCE 15. PEACEFUL RELINQUISHMENT 16. GENERAL CONDITIONS 17. ADVERTISING 18. NONDISCRIMINATION 19. VIOLATIONS 20. TAXES 21. INTEREST CONFERRED BY PERMIT 22. AFFIRMATIVE ACTION 23. MINORITY/WOMEN BUSINESS UTILIZATION 24. ENTIRE AGREEMENT 25. AMENDMENTS ij t 26. WAIVER OF JURY TRIAL 27 COURT COSTS AND ATTORNEY'S FEES 28. MODIFICATIONS 29. AUDIT RXGHTS CORPORATE RESOLUTION REVOCABLE PERMIT 1. DESCRIPTION OF AREA The City of Miami (hereinafter referred to as the "CITY") hereby issues this revocable permit (hereinafter referred to as the "PERMIT") to BAYSIDE SEAFOOD RESTAURANT, INC., a Florida corporation, (hereinafter referred to as the "PERMITTEE"), for the purpose of and under the conditions hereinafter set% forth, permitting said PERMITTEE to use the restaurant concession consisting of approximately 4,000 square feet of outdoor deck dining area and approximately 2,000 square feet of enclosed kitchen and dining area, and the existing equipment which is more fully described in Exhibit 1, attached hereto and made a part hereof, located in Marine Stadium Marina (formerly known as Virginia Key Marina), 3501 Rickenbacker Causeway, Miami, Florida, (hereinafter referred to as the "AREA"). CONDITIONS 2. TIME This PERMIT shall be valid on a month -to -month basis commencing on December 1, 1994, unless otherwise revoked as provided below. This PERMIT may be revoked by the City Manager, with or without cause at any time by delivery of a written notice of revocation, thirty (30) days prior to revocation. 3. PURPOSE AND USE PERMITTEE's AREA shall be used by the PERMITTEE to operate a restaurant selling food, beverages, including alcoholic beverages, and tobacco. 4 4. FEE On or before the 15th day of each month, beginning with January 15, 1995, and continuing during the effective period hereof, PERMITTEE shall pay to CITY for the use of the AREA a monthly fee of Two Thousand Five Hundred Dollars ($2,500.00) plus ten and three..tenths percent (10.3%) of its monthly gross proceeds. Gross proceeds shall mean the aggregate of the gross sales or gross volume of business done on the described premises, whether or not collected. Gross proceeds shall be stated on the Monthly Report form provided'by CITY, which shall be signed by a duly authorized officer of. the PERMITTEE, setting forth the amount of gross proceeds which were derived by PERMITTEE during the immediately preceding month. 5. LAWS APPLICABLE PERMITTEE accepts this PERMIT and hereby acknowledges that PERMITTEE's compliance with all laws of the State of Florida, Ordinances of the City of Miami and Dade County, Florida, pertaining to the operation and maintenance of the AREA, including but not limited to building codes and zoning restrictions, is a condition of this PERMIT, and PERMITTEE shall comply therewith as the same presently exist and as they maybe amended hereafter. 6. UTILITIES PERMITTEE shall pay for all its utilities consumed at the AREA, including but not limited to electricity, water, gas and telephone charges, including the cost of installation of any 5 lines and equipment necessary. PERMITTEE shall be solely responsible for payment of all Stormwater Utility Fees imposed upon the AREA. 7. NO ASSIGNMENT OR TRANSFER PERMITTEE cannot assign or transfer its privilege of entry and use granted unto it by this PERMIT. 8. CONDITION OF AREA PERMITTEE hereby accepts the AREA in its present condition and shall maintain it in good condition, order and repair. 9. IMPROVEMENTS PERMITTEE agrees that no construction, repairs, alterations or improvements may be undertaken upon the AREA unless the plans are: A. Submitted to the Office of Asset Management and Capital Improvements for review and prior approval which approval shall not be unreasonably delayed or denied; B. Approved by all departments and offices of the CITY having jurisdiction thereof; and C. In compliance with all State, Dade County and City of Miami rules and regulations. All additions, partitions, or improvements shall become the property of CITY and shall remain a part of the AREA at the expiration of this PERMIT. The cost of renovation of the AREA as to alterations, additions, partitions or improvements shall be borne by and is the financial responsibility of PERMITTEE. 6 Prior to the expiration date of this PERMIT or the effective date of any earlier termination, PERMITTEE shall have the right to remove any movable personal property or trade fixtures that it places on the AREA, however, if any removal of machinery, equipment, or trade fixtures shall injure or damage the AREA; PERMITTEE shall repair such damage at its own expense. Any personal property or trade fixtures remaining at the AREA after the termination or expiration of this PERMIT shall become the property of the CITY. PERMITTEE also hereby. agrees to pay for and obtain all ;necessary and applicable permits in compliance with all State, Dade County and City of Miami laws, rules and regulations in connection with any additions, partitions or improvements made by PERMITTEE to the AREA. 10. MAINTENANCE PERMITTEE shall at PERMITTEE's sole cost and expense maintain the AREA, including all plumbing, electrical, heating and gas facilities, in good order and repair at all times, and in an attractive, clean and sanitary condition during the period of. this PERMIT or any extension or renewal hereof. 11. CITY'S RIGHT OF ENTRY CITY, or any of its properly designated agents, representatives, or employees, shall have the right to enter the AREA during all reasonable working hours, to examine and/or inspect the same. 7 12. RISK OF LOSS PERMITTEE shall indemnify and save CITY harmless against all risk of loss, injury or damage of any kind or nature whatsoever to property now or hereafter placed on or within the AREA and all risk of loss, injury or damage of any kind or nature whatsoever to the contents of such building or improvements made by PERMITTEE to the structure or structures, or to any goods, chattels, merchandise or to any other property that may now or hereafter be placed upon the AREA, whetherbelonging to PERMITTEE or others, whether said loss, injury or damage results from fire, hurricane, rising water or from any other cause or other contingency, and whether the same be caused by the claimed negligence of CITY or any of its employees, agents or otherwise, and shall keep CITY harmless from all claims and suits growing out of any such loss, injury or damage. 13. INDEMNIFICATION AND HOLD HARMLESS PERMITTEE covenants and agrees that it shall indemnify, hold harmless and defend CITY from and against any and all claims, suits, actions, damages or causes of action arising during the period of this PERMIT or any extensions or renewals hereof, for any personal injury, loss of life or damage to property sustained in or on the AREA, by reason of or as a result of PERMITTEE's use or operations thereon, and from and against any orders, judgments, or decrees which may be entered thereon, and from and. against all costs, attorney's fees, expenses and liabilities incurred in and about the defense of any such claim and the investigation thereof. 8 ( 14. INSURANCE PERMITTEE shall maintain throughout the period of this PERMIT and through any periods of extensions or renewals, the following insurance: A. Commercial General Liability, Comprehensive General Liability or its equivalent, including premises, operations, and contractual coverages, with,a combined single limit of at least $1,000,000 for bodily injury liability and property damage liability. B. Any other coverage deemed necessary in the course of business, broad form property coverage in building, fire, flood, windstorm and extended coverage on a replacement cost basis and worker's compensation as determined by State law. C. The City shall be named an additional insured and Loss Payee on all the required policies of insurance. Required policies of insurance shall be so written that the policy or policies may not be cancelled or materially changed without thirty (30) days advance written notice to the CITY. D. A current Certificate and Policy of Insurance showing the required coverage shall be supplied to the Office of Asset Management and Capital Improvements of the CITY. Insurance policies required above shall be issued by companies duly authorized to do business under the laws of the State, and approved by the CITY 9 with the following qualifications as to management and financial strength: the company should be rated "B+" as to management, and no less than class "X" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the company holds a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the CITY or by any of its representatives which indicates less coverage than required does not constitute a waiver of the PERMITTEE's obligation to fulfillthe insurance requirements herein. 15. PEACEFUL RELINQUISHMENT At the expiration of the PERMIT period, PERMITTEE shall, without demand, quietly and peaceably relinquish, surrender and deliver up possession of the AREA in good as condition as it was at the beginning of the PERMIT period. Peaceful relinquishment is also required pursuant to the provisions of Section 19 hereof, or as provided in Section 2 hereof or as may otherwise be directed by CITY. 16. GENERAL CONDITIONS A. Notices: All notices or other communications which may be given pursuant to this PERMIT shall be delivered in writing, by personal service or registered mail, and shall be addressed to 10 CITY and PERMITTEE as follows: CITY OF MIAMI City Manager Attn: Asset Management City of Miami P.O. Box 330708 Miami, Florida PERMITTEE Bayside Seafood Restaurant Attn: Rolf Gerstner 3501 Rickenbacker Cswy. Miami, F1. 33149 or Claude Laroche 490 Northeast 91 Street Miami Shores, Fl. 33138 Such notice shall be deemed given on the day on which personally served; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. B. Title and paragraph headings are for convenient 'reference and are not a part of this PERMIT. C. Waiver: No failure on the part of the CITY to enforce or insist upon performance of any of the terms of this PERMIT, nor any waiver of any right hereunder by the CITY, unless in writing, shall be construed as a waiver of any other term or as a waiver of any future right to enforce or insist upon the performance of the same term. D. Should any provisions, paragraphs, sentences, words or phrases contained in this PERMIT be determined by a court of competent jurisdiction to be invalid, illegal or other4aise unlawful under the laws of the State of Florida or the City of Miami, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the CITY, and in such event, the remaining terms and conditions 11 of this PERMIT shall remain unmodified and in full force and effect. 17. ADVERTISING PERMITTEE shall not permit any signs or advertising matter to be placed either in the interior or upon the exterior of the AREA grounds without having first obtained the approval of the City Manager or his designee. CITY reserves the right to erect or place upon the AREA an appropriate sign indicating CITY's having issued this PERMIT. 18. NONDISCRIMINATION PERMITTEE shall not discriminate against any persons on account of race, color, sex, religious creed, ancestry, national origin, mental or physical handicap, in the use of the AREA and improvements thereon. 19. VIOLATIONS If PERMITTEE in any manner violates the restrictions and conditions of this PERMIT, then, and in the event, after ten (10) days written notice given to PERMITTEE by the City Manager within which to cease such violation or to correct such deficiencies, and upon failure of PERMITTEE to do so after such written notice, this PERMIT is hereby revoked automatically without the need for other or further action by'CITY. 20. TAXES During the period of this PERMIT, PERMITTEE shall pay any and all taxes of whatever nature lawfully levied upon or assessed against the AREA. 12 21. INTEREST CONFERRED BY PERMIT The provisions of this PERMIT do not constitute a lease and the rights of PERMITTEE hereunder are not those of a tenant. No leasehold interest in the AREA is conferred upon PERMITTEE under the provisions hereof. 22. AFFIRMATIVE ACTION PERMITTEE, shall have in place an Affirmative Action/Equal. Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, the handicapped, and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, PERMITTEE shall submit a Statement of Assurance indicating that their operation is in compliance with all relevant Civil Rights laws and regulations. 23. MINORITY/WOMEN BUSINESS UTILIZATION PERMITTEE, shall make every good faith effort to purchase/contract fifty-one percent (51%) of its annual goods and services requirements from Hispanic, Black and Women businesses/professionals registered/certified with the City%`of Miami's Office of Minority/Women Business Affairs. Such lists will be made available to the PERMITTEE at the time of the issuance of the PERMIT by the City of Miami and updates will be routinely provided by the City's Office of Minority/Women Business Affairs. 13 24. ENTIRE AGREEMENT This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this PERMIT are of no force or effect. 25. AMENDMENT No amendments to this PERMIT shall be binding on either party unless in writing and signed by both parties. 26. WAIVER OF JURY TRIAL PERMITTEE waives a trial by jury of any and all issues arising in any action or proceeding between the parties hereto, or their successors or assigns, under or connected with this PERMIT, or any of its provisions, the relationship of the parties, the PERMITTEE's use or occupancy of the premises, PERMITTEE's rights thereto, and/or claim of injury or damage and any emergency statutory or any other statutory remedy or otherwise. 27. COURT COSTS AND ATTORNEY'S FEES In the event that it becomes necessary for CITY to institute legal proceedings to enforce the provisions of this PERMIT, PERMITTEE shall pay CITY's court costs and attorney's fees. 28. MODIFICATIONS The conditions contained herein shall not be modified unless said modifications are approved in writing by the City 14 Commission. 29. AUDIT RIGHTS The PERMITTEE shall, upon to authorized representatives reasonable demand, make available of CITY, the financial records pertaining to its operation and income in order for CITY to ascertain the gross proceeds of said operations. CITY reserves the right to audit the records for a period of three years after expiration of this PERMIT. IN WITNESS WHEREOF, PERMITTEE has hereunto caused this Revocable Permit to be applied for and has executed the following by its duly authorized officers, as of this 54 day of !/ EC eM 8 EW , 1994. ATTEST: 4,44 ,1„ Corporate Secretary PERMITTEE: BAYS DE EAFOOD RESTAURANT, INC. Directo (Seal) 15 EXHIBIT 1 INVENTORY OF RESTAURANT EQUIPMENT AT VIRGINIA KEY MARINA 3501 RICKENBACKER CAUSEWAY MIAMI, FLORIDA - One (1) "Traulsen" stainless steel refrigerator with two (2) glass doors and four (4) interior shelves One (1) "Kenmore 23" stainless Model No. 253.9133380 Serial No. S308193448 steel regrigerator One (1) "Alco Dispensing System" for soft drinks Model No. 2323 Serial No. 20157 -- One (1) stainless steel sink CORPORATE RESOLUTION WHEREAS, the CITY OF MIAMI has agreed to enter into a Revocable Permit with BAYSIDE SEAFOOD RESTAURANT, INC. a Florida corporation, for the use of the restaurant area of Virginia Key Marina, Inc., located at 3501 Rickenbacker Causeway, Miami, Florida ("AREA"); and WHEREAS, BAYSIDE SEAFOOD RESTAURANT, INC. has agreed to accept this Revocable Permit; and WHEREAS, the Board of Directors of BAYSIDE SEAFOOD RESTAURANT, INC. has examined the terms, conditions, and ,obligations of the attached Revocable Permit with the CITY OF MIAMI, for the use of the AREA; and WHEREAS, the Board of Directors of BAYSIDE SEAFOOD RESTAURANT, INC. at a duly held corporate meeting, has considered the matter in accordance with the bylaws of the corporation; NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF DIRECTORS OF BAYSIDE SEAFOOD RESTAURANT, INC., that the president and secretary are hereby authorized to enter into a Revocable•Permit in the name of, and on behalf of this corporation, with the CITY OF MIAMI for the price and upon the terms and payments contained in the attached Revocable Permit submitted by the CITY OF MIAMI%. IN WITNESS WHEREOF , this /V'" day of =- &-cR , 1994. /6(-47//- Secretary BAYSIDE SEAFOOD RESTAURANT, INC. By: President Board of Directors 17 Amendment to Revocable Permit THIS AMENDMENT made this _ 44-'day of 1997, to a Revocable Permit dated December 21, 1994 (the "Permit"), by and betwee the City of Miami (the "City") and Bayside Seafood Restaurant, Inc. (the "Permittee" . Witnesseth WHEREAS, by Revocable Permit ("Permit") dated December 21, 1994, the City permitted Permittee to operate a restaurant concession consisting of approximately 4,000 s.f. of outdoor deck dining area and approximately 2,000 s.f. of enclosed kitchen and dining area at approximately 3501 Rickenbacker Causeway, Miami, Florida; WHEREAS, City and Permittee desire to amend the Permit and to formally reflect their understandings and agreements with respect thereto; NOW, THEREFORE, the parties hereto do hereby covenant and agree as follows: 1. Paragraph 4 of the Permit is hereby amended as follows: Effective February 1, 1997, the monthly Fee for use of the Area shall be a minimum of two thousand five hundred dollars ($2,500) plus eight percent (8%) of Gross Proceeds greater than $500,000 per year prorated on a monthly basis. Within fifteen (15) days after the end of each calendar month: (i) Permittee shall pay to City the monthly Fee of $2,500); (ii) Permittee shall deliver to City a written report of Gross Proceeds during the preceding calendar month, on forms approved by City. This report shall be signed by Permittee certifying to the accuracy of such Gross Proceeds, and (iii) Permittee shall pay to City the percentage fee due, if any, for the preceding calendar month based upon the Gross Proceeds for the preceding calendar month. At the end of each Permit year, if Permittee can demonstrate that it has made an overpayment in percentage fees due, Permittee shall be entitled to receive a credit against the next payment of minimum monthly fees due. In no event shall Permittee be entitled to receive any interest on any overpayment. 2. A new paragraph 30 is hereby added as follows: Credits. Adjustments and Agreements a) Existing Debt. Permittee hereby acknowledges that Permittee failed to pay the monthly fees due to the City under the terms of the Permit for the period of November, 1995 through January, 1997. Accordingly, Permittee acknowledges that Permittee owes the City unpaid fees in the amount of forty thousand, six hundred and eighty-six dollars and 72/100 ($40,686.72) plus State use tax in the amount of four thousand, five hundred and sixteen dollars and 08/100 ($4,516.08) for a total amount due of forty-five thousand, two hundred and two dollars and 80/100 ($45,202.80). b) Credits to Permittee. Permittee shall receive a one time credit in the amount of twelve thousand, nine hundred and twenty dollars and 32/100 ($12,920.32) to be applied against the monies due to the City leaving a balance due to the City of thirty-two thousand, two hundred and eighty-two dollars and 48/100 ($32,282.48) (the "Existing Debt"). Effective February 1, 1997, the City shall issue to Permittee a monthly credit of seven hundred and eighty-five dollars ($785) for the provision of janitorial services to the public restrooms. This credit shall applied to reduce the amount of the "Existing Debt". c) Payment Agreement. Permittee agrees to pay to the City the Existing Debt on the date and in the manner following: Four thousand dollars ($4,000) to be paid by Permittee on or before May 30, 1997, and one thousand dollars ($1,000) per month commencing June 1, 1997 and an equal payment of one thousand dollars ($1,000) on the first day of each month thereafter until all amounts due are paid in full. City hereby acknowledges receipt of four thousand dollars ($4,000) on May 27, 1997 representing the monthly payment for the Existing Debt for the period of February through May, 1997. City further acknowledges receipt of the following one thousand dollar payments as payment towards the Existing Debt: (a) Payment for June, 1997 was received on June 4, 1997; (b) Payment for July, 1997 was received on July 7, 1997; (c) payment for August, 1997 was received on August 18, 1997; and (d) payment for September, 1997 was received on September 15, 1997. Any payment not received by the 15th day of any given month shall be assessed a 5% late charge fee of the amount due. d) Permittee's Water Consumption. Permittee hereby agrees to procure a new water consumption survey to be performed by an engineer approved by the City. The City shall share in the cost of the survey by permitting Permittee to reduce the existing debt by 50% of the actual survey cost. The findings of said survey shall be binding upon the parties. The City shall adjust amounts due for water service retroactive to December, 1994, based on the usage findings of the new consumption survey. The adjusted usage amount shall remain payable monthly to the City by Permittee, on the first day of each month. 3. A new paragraph 31 is hereby added as follows: Condition Precedent The parties acknowledge that this Amendment is contingent upon receipt by the City of a personal guarantee from Rolf Gerstner, individual, guaranteeing the payment of the Existing Debt in accordance with the terms and conditions of the guarantee attached hereto as Exhibit I. In lieu of a personal guarantee, the City will accept a check payable to the "City of Miami" in the amount of eighteen thousand and two dollars and 48/100 ($18,002.48) ("Guarantee Check"), representing the outstanding balance of the Existing Debt as of September 25, 1997. Said check shall be held by the City and shall not be deposited unless and until Permittee violates the terms and conditions of the Permit, as amended. In the event the Existing Debt is not extinguished within six months of the date the check is written, Permittee shall provide a new check in the amount of the Existing Debt then outstanding which check shall also be held and not deposited as provided above unless and until Permittee violates the terms and conditions of the Permit, as amended. Notwithstanding the above, Permittee may from time to time provide to City a new check to be held in escrow as referenced above to reflect the amount of the Existing Debt then outstanding at the time the new check is provided. In the event of a default by Permittee under the terms of the Permit, the Guarantee Check shall be held by the City as a guarantee that the one thousand dollar ($1,000) monthly payments continue under the terms herein. If said payments are not made as provided, then the Guarantee Check will be deposited and the City will refund the difference, if any, between the Guarantee Check and the then outstanding Existing Debt. 4. The Permit entered into between City and Permittee dated December 21, 1994 shall remain in full force and effect and shall not be deemed to be modified except as modified hereinabove. IN WITNESS WHEREOF, the parties hereto have, through their property corporate officials, executed this Amendment to the Permit on the day and year first above written. Cit G[1 Edward Marqu z City Manager Attest: alter Foeman, City Clerk Approved as to Form and Correctness: n i• es, III City Atto y Pe mit ee: • Rolf Ge tner, President Bayside eafood Restaurant, Inc. STATE OF FLORIDA COUNTY OF DADE Th foregoing instrument was acknowled ed befpre me this '1, day of © 0tithe y , 1997 by Re / &l'S /7 e (name of person nowled �' g), v�ho is personally krtdwn to me or who has produced > fen q. C' a 4. as identification and who did (did not) take an oath. er�i n - A./ c - Sjgn9,ture of Notary Pu (o 7 4 ; 17,7 Print Name C'C 7c9-667 Commission No. GLENNA J. CARROLL Notary Pubic - State or Florida MV Corr isgon Expires Dec 4, 1999 Coo -mission /CC 492607 Second Amendment to Revocable Permit THIS SECOND AMENDMENT made this 1E day of _be c e....b cr 2001, to a Revocable Permit dated December 21, 1994, as amended, (the "Permit"), by and between the City of Miami (the "City") and Bayside Seafood Restaurant, Inc. (the "Permittee"). Witnesseth WHEREAS, by Revocable Permit ("Permit") dated December 2I, 1994, the City permitted Permittee to operate a restaurant concession consisting of approximately 4,000 square feet of outdoor deck dining area and approximately 2,000 square feet of enclosed kitchen and dining area located at approximately 3501 Rickenbacker Causeway, Miami, Florida; WHEREAS, on April 10, 1997, the City Commission by Resolution 97-290, authorized the City Manager to execute an Amendment to the Revocable Permit with Permittee to provide for, among other things, a revision of the Monthly Fee, a credit for janitorial services, a payment plan for past due fees that was owed to the City, a procurement of water consumption survey, and a personal guarantee from the owner of Bayside Seafood Restaurant, Inc. guaranteeing the monies owed to the City. WHEREAS, on August 10, 2001, Permittee incurred fire damage that destroyed the outdoor deck dining area, and partially damaged the dining and kitchen area, and Permittee wishes to use insurance proceeds from a claim to rebuild these areas. WHEREAS, on September 25, 2001, the City Commission approved and adopted Resolution 01-998 which among other thinks, granted Permittee the right to rebuild the outdoor deck dining area, and partially damaged dining and kitchen area with insurance proceeds jointly received by the City and Permittee to complete the construction, and Permittee agreed to donate the improvements to the City'. WHEREAS, City and Permittee desire to amend the Permit and to formally reflect their understandings and agreements with respect thereto; NOW, THEREFORE, the parties hereto do hereby covenant and agree as follows: I. A new Paragraph 31 of the Amended Permit is hereby added as follows: RIGHT TO REBUILD cry -On August 10, 2001, Permitted incurred fire damage that destroyed its outdoor deck dining urea and partially damaged the dining and kitchen portion of the Area. Permitter. at its sole cost and expense, shall have the right to rebuild the fire damaged ,4rea with the proceeds from an insurance claim to Lloyd's of London (number 849149), along with Permittee's own funds to complete reconstruction of the Area. Permittee shall he required to provide evidence to the Office of Asset ;Llanagentent of the use of the insurance proceeds and cell other funds used to complete reconstruction of the .-treu, which shall include hut not he limited to copies of paid invoices, cancelled checks, final re1ea.•es of liens. and a Certificate of Occupancy. Upon completion of Construction of the .Area. a.► evidenced by a Certificate of Occupancy, said improvements shall he donated to the C'it1. and become the property claw City, and shall remain a part of the Area at the expiration of this Permit." b) "No Alterations shall commence in or on the Area until the Permittee has written approval from the City Manager. The City Manager, in his sole discretion. may mandate that the requested construction be secured by means of a perlrirmance bond or letter of credit (hereinafter L.C."") in the amount clone hundred twenty-five percent (12 %) of the total construction cost, or in such other amounts as may be designated by the City Manager. Permittee shall be responsible for maintaining said bonds or L.C. in full force and effect throughout the construction. Any bond or LC provided to the City hereunder shall be issued by insurance and surety companies or banks acceptable to the City, and duly qualified to transact such business in the State of Florida and shall be subject to .form and substance approval by the City Manager." c) "The Permittee shall not suffer or permit any mechanics' liens to be filed against the tide to the Area. nor against the Permittee's interest in the .Area, nor against any Alteration by reason of work, labor, services or materials supplied to the Permittee or anyone having a right to possession of the Area. Nothing in this Permit shall be construed as constituting the consent or request of the City. expressed or implied. by inference or otherwise. to any contractor, subcontractor. laborer or material man for the performance of any labor or the furnishing of any materials for any specific Alteration. or repair of or to the Area nor as giving the Permittee the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the fling of any mechanics liens against the Area. If any mechanics' lien shall at any time he filed against the Area. the Permittee shall cause it to be discharged of record within fifteen (15) days after the date the Permittee acquires knowledge of its filing. If the Permittee shall fail to discharge a mechanics' lien within that period. then in addition to any other right or remedy available to the City, the City may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court of bonding. Additionally. the City may compel the prosecution of an action for the foreclosure of the mechanics' lien by the lienor and pay the amount of the judgment, if any, in favor of the lienor (with interest, costs and allowances), with the understanding that all amounts paid by the City shall constitute additional payments due and payable under this Permit and shall be repaid to the City by the Permittee immediately upon rendition of any invoice or bill by the City. The Permittee shall not be required to pay or discharge any mechanics' lien so long as (i) the Permittee shall in good faith proceed to contest the lien by appropriate proceedings, (ii) the Permittee shall have given notice in writing to the City of its intention to contest the validity of the lien, and (iii) the Permittee shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred ten percent of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees, to he incurred in connection therewith" d) "Notwithstanding anything in the Permit to the contrary, Permittee is hereby granted a deferment of all monthly. Fees, including water use fees, due and payable on the months of August 2001 through November 2001 {the "Deferred Period'). Commencing December 1, 2001 and ending May 31, 2002,Permittee shall pay to the City the deferred monthly Fees, inclusive of Florida State Use Tax and deferred water use fees. Said deferred monthly Fees shall be payable in equal monthly installments on the first day of each month in the amount of one thousand seven hundred seventy five and 01/100 ($1, 775. 01). The deferred fifty-nine water use fees shall be payable in equal monthly installments of one hundred r nine and 20/100 ($159.20). Commencing December 1, 2001 and thereafter. Permittee shall also pay to the City the minimum monthly Fee of two thousand five hundred dollars ($2, 500.00) plus eight percent of Gross Proceeds greater than $500, 000 per year prorated on a monthly basis. and Florida State Use Tax, if applicable . Fail shallre l complete payment of deferred monthly Fees and water use fees by May constitute a default under the Permit. Nothing contained herein during the Deferred Period but accruing prior to the Deferred Period. shall affect the payment of percentage fees, if any, due and payable nor the payment of impositions, or any other amounts due under the Permit during the Deferred Period. e) "Permittee hereby releases the City from and against any and all actions, claims, suits, judgments and demands whatsoever, in law or in equity, for (i) costs, last profits and/or any other damages Irelating s an��p' r otherr to any damagesdelay in the during the opening of the Area for business, (r ) reconstruction period of the damaged Area, and/or (iii) the use of the insurance proceeds and additional funds required for the reconstruction of the damaged Area. ' Paragraph 16.A. of the Amended Permit is hereby amended as follows: A. Notices. City of Miami City Manager 444 S.W. 2 Avenue, 106 Floor Miami, Florida 33130 COPY TO: City of Miami City of Miami Office of Asset Management City Attorney 444 S.W. 2"d Avenue, Suite 325 444 S.W. 2 Avenue, Suite 945Miami, Florida 33130 Miami, FL 33130 1994, as 3. The Permit entered into between City and Permittee be deemeded to bec od�fier d,except as modified shall remain in full force and effect and shall not hereinabove. Print Name rtncss Si ature Jl/ x�� Print Namc STATE OF FLORIDA COUNTY OF DAD}k. The foregoing il>.strument was rtuknowledgul 2001 by / e.,(s" Restauran�inc., a for profit corporation of the Slate of Florida, personall known to me or who has produced and did (u id not) take an oath. Signature of Notary Public Priltt Name Cuininissiuin Nu. f�ise• ttiera Gomez MY COMMISSION ON r CC3IItO4 EMPIRES May i S 2003 IOPIDEDTHAUfear Fa1NIHTI)0ASC NC Print Name Restaurant, Inc. ner, Presidcntt - r 6112Ch \ AlF bcfurc me this %% day of T ►� of Baysidc Scafood on behalf of the corporation He/She is as idcntilicatiion IN WITNESS WHEREOF, the parties hereto have, through their property corporate officials, executed this Amendment to the Permit on the day and year first above written. APPROVED A • RM CORREC arello orney Walter Foenan City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Mario Soldevilta Risk Management Administrator THE CITY OF MIAMI, a municipal corporation of the State of Florida Car City Manager menez IC-[1►cm 0012 i