HomeMy WebLinkAbout24133AGREEMENT INFORMATION
AGREEMENT NUMBER
24133
NAME/TYPE OF AGREEMENT
STATE OF FLORIDA & GROVE BAY INVESTMENT GROUP,
LLC
DESCRIPTION
GROUND LESSOR'S ESTOPPEL CERTIFICATE/3385 & 3349
PAN AMERICAN DRIVE, 3351 & 3371 CHARTHOUSE DRIVE,
MIAMI, FLORIDA/MATTER ID: 22-635/#35
EFFECTIVE DATE
ATTESTED BY
ATTESTED DATE
DATE RECEIVED FROM ISSUING
DEPT.
11/4/2022
NOTE
CITY OF MIAMI
DOCUMENT ROUTING FORM
ORIGINATING DEPARTMENT: eal Estate and Asset Management
DEPT. CONTACT PERSO ► Yvonne Hernandez
NAME OF OTHER CO
RACTUAL PARTY/ENTITY: Grove
IS THIS AGREEMENT A RE'T T OF A COMPETITIVE
TOTAL CONTRACT AMOUNT: $
305-416-1429
V Investment Group, LLC
CUREMENT PROCESS? ❑ YES // NO
FUNDING INVOLVED? ❑ YES ® NO
TYPE OF AGREEMENT:
❑ MANAGEMENT AGREEMENT
❑ PROFESSIONAL SERVICES AGREEMENT
❑ GRANT AGREEMENT
❑ EXPERT CONSULTANT AGREEMENT
❑ LICENSE AGREEMENT
❑ PUBLIC WORKS AGREEMENT
❑ MAINTENANCE AGREEMENT
❑ INTER -LOCAL AGREEMENT
❑ LEASE AGREEMENT
❑ PURCHASE OR SALE AGREEMENT;
OTHER: (PLEASE SPECIFY) Ground Lessor's Estoppel Certificate
C.
PURPOSE OF ITEM (BRIEF SUMMARY): Certification to Lessee and First Bank Puerto Rico D/B/A Firstbthik Florida
and each subsequent owner of a loan secured by Lessee's leasehold interest in the property located at 3385 & 3349 Pan
American Drive, Miami FL and 3351 & 3377 Charthouse Drive, Miami FL
COMMISSION APPROVAL DATE: / / FILE ID:
ENACTMENT NO.:
IF THIS DOES NOT REQUIRE COMMISSION APPROVAL, PLEASE EXPLAIN:
N/A
;::ROUTIING;INFORMATION> .::'.: `_ .::` _.:
Date
PLEASE PRINT AND SIGN
APPROVAL BY DEPARTMENTAL DIRECTOR
7/1/2022
PRINT: Jacqueline Lorenzo
SIGNATURE:
SUBMITTED TO RISK MANAGEMENTM-
PRINT: Ann ar'e S atpe
SIGNATURE:
tuaji,/- 2.2 .-(e
SUBMITTED TO CITY ATTORNEY IAJ
7/15/22
PRINT: Victoria Mendez
7t
SIGNATURE:
APPROVAL BY ASSISTANT CITY MANAGER
pt
1,1
PRINT: Larry Spr
SIGNATUR.�
RECEIVED BY CITY MANAGER
7-4
Y-1
-9-
PRINT: Arthur No , eg
SIGNATURE:
1) ONE ORIGINAL TO CITY CLERK,
2) ONE COPY TO CITY ATTORNEY'S OFFICE,
3) REMAINING ORIGINAL(S) TO ORIGINATING
DEPARTMENT
PRINT:
SIGNATURE:
PRINT:
SIGNATURE:
PRINT:
SIGNATURE:
PLEASE ATTACH THIS ROUTING FORM TO ALL DOCUMENTS THAT REQUIRE
EXECUTION BY THE CITY MANAGER
GROUND LEASE MORTGAGE
GROUND LESSOR'S ESTOPPEL CERTIFICATE
June 30, 2022
Grove Bay Investment Group, LLC
2640 S. Bayshore Drive, Suite 302
Miami, Florida 33133
Attn: Eduardo Garcia
Re: Ground leased property located at 3385 & 3349 Pan American Drive, Miami, Florida,
and 3351 & 3377 Charthouse Drive, Miami, Florida ("Property")
Ladies and Gentlemen:
The undersigned, the CITY OF MIAMI, a municipal corporation organized under the laws of the State of
Florida ("Lessor"), as lessor under that certain Lease dated October 24, 2013, between Lessor and GROVE
BAY INVESTMENT GROUP, LLC, a Florida limited liability company ("Lessee"), as lessee, covering
the Property, as supplemented by that certain Grove Bay Parking Facilities Agreement dated February 8,
2016, by and among Lessor, Lessee and the Department of Off -Street Parking of the City of Miami, d/b/a
Miami Parking Authority, as an agency and instrumentality of Lessor (as amended, the "Lease"), warrants,
represents and certifies to Lessee and FIRSTBANK PUERTO RICO D/B/A FIRSTBANK FLORIDA, a
financial institution organized under the laws of Puerto Rico, and each subsequent owner of the loan secured
by Lessee's leasehold interest in the Property (together with their successors or assigns, "Lender") as
follows, as of the date of this Ground Lessor's Estoppel Certificate ("Certificate"):
1. Lessor is the lessor under the Lease and Lessee is the lessee under the Lease. Lessor has received
no written notice that Lessee has mortgaged or will mortgage the Lease and its leasehold interests
therein, except to Lender in connection with the loan from Lender secured by Lessee's leasehold
interest in the Property (and further excepting the loan subject to refinance via Lender). All
capitalized terms used but not defined herein shall have the meaning set forth in the Lease.
2. The term of the Lease commenced on November 11, 2013, and expires on November 11, 2063,
subject to Lessee's Renewal Options. Lessee holds two (2) Renewal Options to extend the Lease
for two (2) consecutive fifteen -year periods.
3. All rent is payable as set forth in Article IV of the Lease, and all rent owed in accordance with
Article IV of the Lease has been paid through June 30, 2022.
4. All conditions precedent to the effectiveness of the Lease have been fully satisfied and the Lease
is in full force and effect. True, correct and complete copies of all of the documents constituting
the Lease are attached hereto as Exhibit A. The Lease has not been assigned, modified,
supplemented or amended in any way, except as reflected in Exhibit A. There are no other
agreements concerning the Property, whether oral or written, between Lessee and Lessor.
5. As of the date specified above, Lessor has not delivered or received any notices of default under
the Lease; to the best of the Lessor's knowledge, there is no default by Lessee or Lessor under the
Lease, nor has any event or omission occurred which, with the giving of notice or the lapse of time,
or both, would constitute a default by Lessor or Lessee. To be the best of Lessor's knowledge, no
controversy presently exists between Lessor and Lessee, including any litigation or arbitration, with
00168039.DOCX v.4
Ground Lessor's Estoppel Certificate
respect to the Lease or the Property. To the best of Lessor's knowledge, there are no existing or
outstanding offsets, counterclaims, defenses, deductions or credits whatsoever with respect to the
Lease or any amount owing under the Lease.
6. Lessor is the record and beneficial owner of the Property. Lessor has not subordinated its interest
in the Lease to any mortgage, lien or other encumbrance on the fee. Lessor has not assigned,
conveyed, transferred, sold, encumbered or mortgaged its interest in the Lease or the Property.
Notwithstanding the aforementioned, Lessor has entered into non-exclusive utility easements and
other encumbrances of record over the Property. No consent or approval of any third party is
required in order for Lessor to deliver this Certificate. For the avoidance of doubt, Lessor makes
no representations regarding actions taken by or on behalf of the Department of Off -Street Parking
of the City of Miami.
7. Lessor has not granted to the Lessee or any third party an option or preferential right to purchase
all or any part of the Property.
8. Lessor has not received written notice of any pending eminent domain proceedings or other
governmental actions or any judicial actions of any kind against Lessor's interest in the Property.
9. Lessor has not received written notice that it is in violation of any governmental law or regulation
applicable to its interest in the Property and has no reason to believe that there are grounds for any
claim of any such violation. There are no restrictions on the use of the Property that conflict with
or prohibit the Permitted Uses as defined in the Lease, and Lessor has obtained the termination or
waiver of any deed restrictions claiming to limit the use of the Property solely for municipal
purposes.
10. Neither Lessee nor any affiliate of Lessee has any direct or indirect ownership interest in Lessor or
any affiliate of Lessor.
12. Lessor acknowledges that Lender's address for notice and other purposes under the Lease is as
follows:
FirstBank Puerto Rico d/b/a FirstBank Florida
701 Waterford Way, Suite 800
Miami, Florida 33126
Attention: Legal Department
13. Lessor and the person or persons executing this certificate on behalf of Lessor have the power and
authority to execute this certificate.
14. Lessor consents to the execution and delivery by Lessee to Lender of (1) a Leasehold Mortgage,
Assignment of Leases and Rents, Fixture Filing and Security Agreement by Lessee in favor of
Lender covering Lessee's leasehold interest in and to the Property, (2) an Assignment of Leases
and Rents by Lessee in favor of Lender assigning the leases and rents of Lessee's leasehold interest
in the Property to Lender, and (3) a UCC-1 Financing Statement naming Lessee as debtor and
Lender as the secured party, granting Lender a first priority security interest in all assets of Lessee,
including, machinery, fixtures and equipment, materials on site and inventory, accounts receivable
and collections, licenses, permits, and material contracts. Lessor further consents to the recording
of all the foregoing instruments in the official property records of Miami -Dade County, Florida and
also the filing of the UCC-1 Financing Statement in the State of Florida Secured Transaction
Registry. Notwithstanding any language contained herein to the contrary, nothing in this Certificate
shall be construed as a waiver, by Lessor, of any of its rights under the Lease including, but not
Ground Lessor's Estoppel Certificate Page 2
limited to, (i) the leases and rents of Lessee's leasehold interest in the Property, and (ii) the assets
of Lessee, including, machinery, fixtures and equipment, materials on site and inventory, accounts
receivable and collections, licenses, permits, and material contracts.
Lender and its successors and assigns may rely upon the truth and accuracy of the certifications contained
in this Certificate, and this Certificate will be binding upon Lessor and its successors and assigns, and inure
to the benefit of Lender and its successors and assigns. This Certificate may not be deemed to alter or
modify any of the terms and conditions of the Lease.
[signature page follows]
Ground Lessor's Estoppel Certificate Page 3
GROUND LESSOR:
THE CITY OF I, Florida, a municipal
corporation organize nder the laws of the State of
Florida
By:
Approved as To Legal Form and
Correctness:
By 7t for
Victoria Mendez
City Attorney
Arthur No ga, City Manager
Ground Lessor's Estoppel Certificate Page 4
EXHIBIT A
GROUND LEASE AND AMENDMENTS
Ground Lessor's Estoppel Certificate Page 5
LEASE
BETWEEN
THE CITY OF MIAMI
AND
GROVE BAY INVESTMENT GROUP, LLC
FOR THE USE OF
A. CERTAIN PORTION OF
THE CITY -OWNED PROPERTY LOCATED AT
3385 Pan American Drive, Miami, Florida
3349 Pan American Drive, Miami, Florida
& 3351 & 3377 Charthouse Drive, Miami, Florida
LEASE•AGREEMENT
This LEASE AGREEMENT ("Lease") is made as of the — day of , 2013,
by and between the CITY OF MIAMi, FLORIDA ("Lessor"), a municipal .corporation of the State of
Florida having its offices at 3500 Pan American Drive, Miami, Florida, 33133 and. GROVE BAY
INVESTMENT GROUP, LLC, a Florida limited liability company, having its offices at 2950 SW 27
Avenue,.Miatni, Florida, 33133 ("Lessee").
The Lessor and. Lessee, together the "Parties," agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. 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 inay be applicable in the particular context, More specifically,.
however, kin' the purposes of this Lease, the following words shall have the meanings attributed to them in
this Section;
.1.1.1 "Additional Rent" means all additional stns, charges, or amounts of whatever nature to
be paid. by Lessee, not. defined as Minimum Base Rent or Percentage Rent, in accordance with the
provisions of this Lease, whether or .not. such sums, charges or amounts are referred to as additional rent,
1.1.2 "Applicable Law" -means all laws of the United States; Florida Statutes, City of Miami
and Miami -Dade 'County ordinances; .codes, ru.Ies, regulations, resolutions, orders, ,judgments,. decrees and
injunctions from courts having jurisdiction over the Property, rules, and. requirements of State and. local
hoards and agencies with jurisdiction over the Property, now existing or hereafter enacted, adopted,
foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Property or any part
of it.
1.1,3 "Assignment" -means the complete transfer of the rights and obligations of the Lessee
under the Lease to a third party, whereupon the third party Assignee• becomes the Lessee under the Lease
and takes over all of the Property and the rem and other obligations associated with the Lease, thereby
assuming the prior tenant's rights and obligations.
1,:1,4 "Assignee" means the third -party entity taking over the rights and-obligatio.ns of the
Lessee or assignor or owner of the Leasehold Estate.
1..1,6 "Business Days" -means Monday through Friday. excluding legal holidays.
1.1,7 "Casual Restaurant" means the restaurant operating at the location indicated for the
casual restaurant in the Proposal characterized by a casual atmosphere and generally at a price point lower
than that of the Formal Restaurant.
1.1.8 "City" means the City of Miami, a municipal Corporation of the State of Florida.
1.1.9 "City Manager" means the administrative head of the City's govermnent who is
authorized to.execute this Lease and other documents included notices hereunder.
1.;1.10 "Date of Taking" means the earlier of (i) the date on which. actual. possession of all or less
than: all of the Property, as the case may be, is acquired by any lawful power or authority pursuant to the
provisions of Applicable Law; or (ii) the date on. which title to all or less than all of the Property, as the
case may be, has vested in any lawful power or.authotity pursuant to the provisions of Applicable Law.
1.1.1.1. "DEP" means the State of Florida Department of Environmental Protection.
1.1.12 "Effective Date" means the date this Lease is. fully executed and legally binding upon the
Patties, only after final approval by the City and a public referendum.
1.1.13 "Equity Contribution" means the equity in the Projeot provided by Lessee personally or
through- one or more Persons, which are wholly owned by the Lessee and over which Lessee retains voting
control, shall equal not less than. $17,900,000, inclusive of the Lessee's contribution to the Parking
Facilities. The foregoing sum shall include all demonstrable hard costs and soft costs, including, but not
Ihnited to, architectural, consulting, and legal fees, reasonably related to the Project expended or
reimbursed by the foregoing patties prior to or after the date hereof. The Lessee has deposited funds in
escrow in the amount of $ 7,000,000 (the "Good Faith Escrowed Funds"). which ftmnds shall be available to
Lessee in order to ensin'e that Leasehold Improvements required by the terms of this Lease are paid and for
other hard costs and soft. costs reasonably related to the Project. The Good Faith Escrowed Funds shall be
deemed to constitute a portion of the Equity Contribution.
2
1.1.14 "Fair Market Rent" means the rent that a similar property with the entitlements currently
applicable to the Property, without consideration of the Leasehold Improvements constructed by the
Lessee, would bring in a competitive and open market under all conditions requisite to an arm's length
transaction, the parties each acting prudently, knowledgeably, and assuming, the rent is not:affected by
undue stimulus. Implicit in this definition are the following assumptions;
(i) Both parties are typically motivated;
(ii) Both parties are well informed or well-advised and acting in what they consider
their own best interest;
(iii) A reasonable time is allowed for exposure in the open market;
(iv) Payment is made in terms of cash in. US, dollars in terms of financial
arrangements comparable thereto; and
(v) The rent represents the not7nal consideration for property leased, under the
current market conditions (as of any date as of which Fair Market Rent is
determined) unaffected by special or creative financing or concessions granted
by anyone associated with the Lease.
1.1,15 "Formal Restaurant" means the restaurant operating at the location(s) indicated for the
formal restaurant in the Proposal characterized. by a price point generally higher than. that of the Casual or
a semi -casual Restaurant, •
1.1.16 "Force Majeure" means any period of delay which arises from or through acts of God;
strikes, lockouts; , riot, or civil commotion; act of war; fire or other casualty; legal requirements; delays
caused by the other :party; and causes beyond the reasonable control of a:party.
' 1.1.17 "Gross Revenues" shall have.the meaning described in Section 4.1,3. of the Lease,
1,1.18 "Impositions" means all governmental assessments, including assessments unposed by
the City and the State of Florida, franchise fees, fire fees, excises, license and permit fees, submerged land
fees; levies, charges, and. taxes, including ad valorem real estate taxes on the Property and the Leasehold
Estate„ general and special, .ordinary and .extraordinary properly levied against the Property and the
Leasehold Improvetner,ts and/or the Lessee's Leasehold Estate which constitute a lien on the Property or
the Leasehold Improvements, due as a result of the Lessee's use of the leasehold and/or duet() the Lessee's
operation of a commercial business on the Property.
1.1.19 "Leasehold Estate" means all of Lessee's.right, title and interest as Lessee in, to and under
this Lease, the Property and the Leasehold Improvements.
1.1,20 "Leasehold Improvements" means a description of remodeling/renovation work to be
done to the physical plant as described in Exhibit"A" entitled "Schedule of Leasehold Improvements" and
all fiu•nishings, fixtures, or equipment Mho installed in accordance with Section 6.1, and all other items and
improvements installed or constructed. thereafter, from time to time •during the Lease Term that are
hereafter located upon the Property,
1.1.21 "Leasehold: Mortgage" means a mortgage or other instrument which constitutes an
encuinbrance or lien upon the Leasehold. Estate or any part thereof; or any related personal property, and
Lessee's interest in the Leasehold Improvements (including Lessee's interest as sublessor in any present or
flrture Subleases and any other interest of the Lessee in the Leasehold Improvements); as security for any
loan, including any construction loan; provided, however, that. no Leasehold .Mortgage shall. encumber
Lessor's fee simple interest in the Property.
1.1.22 "Leasehold Mortgagee" means any holder of a Leasehold Mortgage or any note or notes
secured thereby.
1..1.23 "Lease Term", means the period of time fixed in Section 3,1 and shall be deemed to
include each Renewal, Term fixed in Section 3.2 if Lessee exercises the applicable Renewal Option for
Lessees right to renew the Lease.
1,1.24 "Lease Year" means twelve (L2) oonsecutive months commencing on the Effective Date.
The first Lease Year shall begin on the Effective Date, Each subceeding Lease Year shall commence upon
the anniversary date of the Effective Date,
1.1.25 "Lessee" has the meaning ascribed to it in the opening paragraph of this Lease as well as
Lessee's successors and. assigns.
1.1.26 "Licensee" means Grove Key Marina, Inc., the current operator of the marina and casual
restaurant located on the Property.
3
1.1,27 "MPA" means the Department of Off -Street Parking of the City of Miami, d/b/a Miami
Parking Authority. In relation to the parking obligations in this Lease, the term Lessor and MPA shall be
used interchangeably,
1.1.28 "Minimum Base Rent" means the annual Minimum Base Rent due and payable by the
Lessee on a monthly basis for the use of the subject Property in the amount sot forth in Section 4.1.1.
1.1.29 "Marine Retail Store" means an establishment in which 50% or more of the floor area is
stocked with supplies and equipment designed primarily or exclusively for use in commercial fishing or
recreational boating. Examples of such supplies and equipment include navigational instruments, marine
hardware and paints, nautical publications, nautical clothing (e,g,, foul -weather gear), fishing supplies and
marine engines.
1..1,30 "Net Condemnation Award" means the actual amount of the award paid in connection
with or arising from the taking of all or less than nil. of the Property, as the case may be, less all reasonable
out-of-pocket expenses ineurred by Lessor or Lessee in .connection with obtaining such award, including,
without limitation, all reasonable attorneys.' fees and disbursements incurred. in connection therewith.
1.1.31 "Net Insurance Proceeds" means the actual amount of insurance. proceeds paid following
an insured. casualty to the Leasehold Improvements less all costs and expenses including reasonable
attorneys' fees incurred by the Lessee with respect to the collection thereof,
1.1,32 "Net Sale .Proceeds'.' shall mean the net .proceeds to Lessee, or owner transferring such
interest, (pursuant to Article XI herein), retraining after payment of (i) any other debt relating to the
Property as prorated proportionately to the interest being •transferred; and (ii) nll reasonable costs and
expenses of the sale or Transfer, including commissions, fees, and closing costs,
• 1.1,33 "Parking Facilities Conditions" mean the satisfaction of following conditions precedent:
(a) the completion of construction of the Parking. Facilities, including, without limitation, the Guaranteed
Parking Spaces, as evidenced by a permanent Certificate of Occupancy or .Certificate of Completion, as
applicable, (b) the completion of construction of the Parking Facilities Retail Area, materially in
accordance with the "Gray Shell Standards" described on Exhibit "B" attached hereto, and the issuance of
a permanent Certificate of Occupancy therefor, and (c) Lessor, Lessee and the MPA shall have entered into
an agreement pursuant to which (1) the MPA shall make available to Lessee, for use by Lessee and Sub-
lessees, and their respective employees,. patrons and customers, suppliers and contractors ("Qualified
Parkerss"), of approximately 497 parking spaces (ns may be adjusted based upon final gross leasable retail
square. footage of Parking. Facilities Retail Area constructed by the MPA), on a nonexclusive basis (the
"Guaranteed Parking Spaces"),.open during the one hour before through the two hours after the established
operating hours of the Permitted Uses on three hundred sixty-five day per year basis, throughout the Lease
Term, at hourly and daily parking rates which shall not exceed. the parking rates. in effect from time to time
for comparable parking facilities in Coconut Grove; provided that for the first Lease Year, there shall be no
charge for the first hour of parking for each Qualified Parker, and that for the second Lease Year thereafter,
the charge for the iirst.hotir of parking for each Qualified Parker shall be one half of the charge for each
successive hour, (2) the MPA shall make available to employees of Lessee or of .any Sub -lessee (as
identified to Lessor (or the MPA) from time to time) n set parking rate at a discount to Qualified Parkers,
(3) the MPA sets forth a validation program. for Lessee's patrons consistent with the commitments set forth
in. the RFP, (4)•MPA agrees to maintain and repair the Parking Facilities, (5) the MPA agrees tbllowing any
casualty to immediately continence and diligently pursue any required restoration to the Parking Facilities,
including the Parking Facilities Retail Area, and (6) the City agrees, upon any casualty to the Parking
Facilities, and until completion of the restoration of the Parking Facilities, to use its best efforts to make
available to Lessee a number of parking spaces equal to the Guaranteed Parking Spaces within. close
proximity to the Property on. the same basis and terns applicable to the Guaranteed Parking Spaces,
1.1.34 "Parking Facilities" means the structure the Miami. Parking Authority (the "MPA") will
construct to provide parking to service the Property, which will include the Guaranteed Parking Spaces and
the Parking Facilities Retail Area, MPA shall construct the Parking Facilities Retail Area as part. of the
Property.
1.1,35 "Parking Facilities Retail Area' means the ground floor retail area' to. be constructed as
part of the Parking Facilities.
1.1,36 "Percentage. Rent" means those amounts described in Section 4,1.3, below.
1.1,37 "Possession Date" means the first day following the latter to occur of the following; (i)
approval of thisLease by referendum as contemplated in the RFP, (ii) execution of this Lease by all parties,
and (iii) the Licensee vacates the Property and the Lessor delivers to Lessee possession of the entirety of
4
the Property.
1.1.38 "Project" means the planning, designing, renovating or redeveloping, leasing, managing
and operating of a mixed -use waterfront facility as contemplated by the Proposal.
1.1.39 "Property" means the land, buildings, improvements and authorized submerged. lands
located ar 3385 Pan American Drive, 3349 Pan American Drive, 3351 & 3377 Chart Ilouse Drive, Miami,
Florida, as more particularly described in Composite Exhibit "Cl" attached herewith and incorporated
herein: by reference. Specifically, Property shall include all of the retail spaces located within the Parking
Facilities, but not the parking spaces or land upon which the Parking Facilities will be constructed. Upon
issunnee of a Certificate of Occupancy for the Parking Facilities, the final description of the Property,
including the Parking .Facilities Retail Area, shall be annexed to this Lease as Exhibit "C2."
1.1,40 "Proposal" means the document received by the Lessor dated May 10, 2013 in response
to the RFP, a copy of which is available at the City Clerk's Office and incorporated herein by this
reference.
1.1,41 "Rent" means Minimum Base Rent or Percentage Rent, •as such amounts are described
and fixed in Section 4, 1,1 and 4,1.,3, and adjusted pursuant to the terms of Section 4.1.2 herein,
•
1,1.42 "RFP.' means the document entitled "Request for Proposals ("RFP") No. 12-13-001
Lease of City -owned Waterfront Property for Marina/Restaurant/Garage Retail Uses" located. at 3385 Pan
American Drive and 51 Chart House Drive, Miami Florida, issued by the City of Miami on January 11,
2013, and the addenda. thereto, a. copy of which is available at the City Clerk's Office and incorporated
herein by this reference. •
1,1,43 "Sublease" means any lease (excluding this Lease), -sublease, license, concession, permit
agreement, or other agreement. by which Lessee or any person or other entity claiming under Lessee,
demises, leases, subleases, licenses or sublicenses to or pen nits the use or occupancy by another person or
entity of any part of the Property and Leasehold Improvements.
1.1.44 "Subleasehold Estate Transfer" means any direct or indirect, voluntary or involuntary,
sale, transfer, or assignment of any right, title or interest in and to any Sublease or any Subleasehold Estate,
1.1,45 "Sub -lessee." means any person, film, corporation or other legal entity using or occupying
or entitled to use or occupy any part ofthe Property or the Leasehold Improvements under a Sublease.
1.1.46 "Submerged Lands" means any Submerged Lands adjacent to the Property which have
been authorized for marina or marine -related uses by the Lessor and/or the Lessee by the State of Florida
Board of Trustees for Internal Improvement Trust Fund or by its administrative arm, the DEP.
1.1,47 "Submerged -Land Fees" means all. fees, waivers, rentals and taxes as determined by DEP
and any and all government agencies for the use of the Submerged Lands area.
1.1.48 "Third' Party Caterer" means any person or entity providing food, supplies, entertainment,
or other related servicer at any event or gathering held at. the Property and, if a person, such person does not
have direct familial relationship with any of the equity holders of the Lessor or, if an entity, such entity is
not owned, directly or indirectly, by any of the equity holders of•the Lessor. The phrase "direct familial
relationship means a spouse. child, sibling, parent, grandparent, grandchild, or first cousin,
1.1.49 "'Transferee" means the receiving entity of a transfer is accordance with Article XI
herein.
1.1.50 "'Transfer of Control" means any interest assignment which results in. a change in voting
and operational -control of Lessee.
1.1.51. "Transferor" means the owner who is transferring in. accordance with Article XI herein.
ARTICLE II
LEASE OF PROPERTY
Section 2,1 Lease of Property,
The Lessor does hereby lease, lot and demise to the Lessee, and the Lessee hereby leases from the
Lessor the Property, subject to the terms and conditions in this Lease, to have and to hold the Property, with
all of the rights, privileges .and appurtenances, thereunto belonging or pertaining, for the tenn herein
specified, unless this Lease shall be sooner terminated in a manner hereinafter provided.
Section 2.2 Purpose of Use and Occupancy.
The Lessee will use and occupy the Property as a full -service, dry storage marina, with ancillary
minor boat repair functions, other ancillary marine -related services, fuel sales, other related. food services,
one or more casual restaurants, one or more formal restaurants, retail uses and such other uses as
contemplated in the Proposal (the "Permitted Uses") and for no other purpose or use of any kind.
5
The marina shall provide for dry storage racks or comparable 'storage equipment, accommodating
the storage of a mininmun of 400 boats. Vessels stored at the marina shall be .28 feet or lesser in length.
The retail use shall be located in the Parking Facilities Retail Area on the ground floor of the Parking
Facilities. In addition, retail uses shall be permitted in such areas designated for retail uses in the Proposal
(the "Other Permitted. Retail Areas"), Lessee agrees that the Parking. Facilities Retail Area and the. Other
Permitted Retail Areas shall not allow tenants operating adult -novelty shops, gun shops and pawn shops.
The parking garage portion of Parking Facility will be managed, operated and the parking spaces leased out
by the MPA.
The Lessee agrees to use its hest efforts to obtain permits necessary to construct the pier set forth
in the Proposal. In addition to the foregoing, the Lessee agrees to .use best .efforts to construct two
additional boat launches at the location described in the Proposal. The Lessor acknowledges that its
consent may be required to construct such additional boat launches and, to 'the extent such approval is
necessary, Lessor hereby agrees not to unreasonably condition, delay and withhold approval -thereof. For
avoidance of doubt, the cost of such additional boat brunches and any improvements necessary to the
baywaik associated thereto shall -count towards the Equity Contribution as set forth in. the Proposal. Lessee
a grees that should the additional boat launches -located. at (]rove Harbour (as described. in the Proposal) not
be available for use, that the Lessee shall construct the on -site boat launch as depicted in the Proposal..
The (i)- terraced .open-air space located over the Formal Restaurant (as described in the Proposal)
mul (ii) the pier set forth in the Proposal, each subject to obtaining applicable approvals. and upon
completion thereof, shall be available for public use, subject to such reasonable access and use restrictions
as established from time -to -time by Lessee.
Section 2.3 Use of Submerged Lands,
The use of any submerged land owned by the State of Florida, adjacent to the Property, shall be
subject to approval by the DEP and may contain restrictions set forth by DEP for the use of said submerged
lands, as more particularly described in Exhibit "D" attached hereto to be incorporated and made a part
hereof.
Section 2,4 Suitability of Property.
Lessee acknowledges that neither the Lessor nor any of Lessor's officers, representatives, or
employees has made any representation or warranty with respect to the Property or with respect to the
.suitability or fitness of the Property for the conduct of Lessee's marina ,and/or .restaurant operations or for
any other purpose, except as set forth in this Lease or in the REP. The execution of this Lease by Lessee
shall establish that the Lessee accepts the condition of the Property "AS IS",
Section 2.5 Limited Representations by Lessor, •
Lessor makes the following representations,, covenants and warranties, which shall survive the
execution of -this Lease and Lessee's taking of possession of the Property:
(a) That Lessor has taken all requisite actions to make this Lease binding upon the
Lessor, and the Lessor is indefeasibly seized of marketable, fee siinple title to. the Property, and is
'the sole owner of and has good right, title and authority to convey and transfer all property, rights
and benefits which are the subject matter of this Lease.
(b) That, as of the Effective Date end throughout the Lease Term, no party except
Lessee and parties in possession by through or under Lessee shall be in or have' any right to
possession of the Property, except certain dry slip users pursuant to the lease agreements described
on Exhibit "E," which will be disclosed to the Lessee and included in this Lease as Exhibit "E,"
upon receipt from Licensee,
(c) That there is on the Effective Date and shall be throughout the Lease Term, legal
and physical ingress and egress to the Property from a paved public street fbr vehicular traffic and
perpetual legal and physical ingress and egress for pedestrian traffic,
(d) The Property may be used and operated only for the Permitted Uses; and as of
the Effective Date and throughout. the Lease Term, there shall be no Applicable Laws, private
restrictions or other conditions which restrict or prevent the Property from being used and operated
for the Permitted Uses.
(e) All of the representations and warranties of Lessor contained. in this Lease shall
continue to be true as of the Effective Date •and throughout the Lease Term, and said
representations and warranties shall be deemed to be restated and affirmed by Lessor as of the
Effective Date without the necessity of Lessor's execution of any document with regard thereto,
and the Lessor's liability (except with respect to the environmental condition of the Property which
is expressly addressed in Article XII of this Lease) therefore, shall survive the signing of this
Lease. Should any of the representations and. warranties prove to be incorrect, it shall he Lessor's
obligation to cure those warranties and. representations,. which are set forth herein forthwith a.t.
Lessor's expense.
Section 2.6 Lease Execution.
This Lease remains subject to final approval by the City Commission and approval by public
referendum as. provided pursuant to Section 3(f)(iii) of the Charter of the •City of Miami. Prior to
consideration by the City Commission, Lessee shall deliver two (2) fully executed copies of this Lease to
the City Manager, which copies shall be held in escrow by the City Manager until approval of the Lease by
public referendum and,. thereupon, the Lease shall become binding and effective as to both the Lessee and
Lessor. If the Lease has not been.approved by the City Commission and public referendum by December
31, 2013, then Lessee shall have the. right at any time thereafter, to terminate this Lease by written notice
thereof to Lessor.
Section 2.7 Prohibition on Casino Gambling.
Lessee agrees. that, if casino gambling shall in the future become legal in the City of Miami, the
Property hereby demised. shall not be used for .casino gambling, or games of chance or reward, unless: (i)
Lessee obtains the prior consent of the Lessor, which consent may be withheld at the sole discretion of the
City Commission; and (ii) if the Lessor .consents, the Parties shall in good faith. negotiate an appropriate
modification or amendment to this Lease, permitting such use and providing for the payment by the Lessee
to the Lessor, as Additional Rent, of an amount to be negotiated, by the Parties.
ARTICLE III
. TERM
Section 3,1 Term of Lease.
The initial tern rl of this Lease is for a. period of filly (50) years ("Term"); commencing on the
Effective Date.
Section 3,2 Option to Renew.
The Lessee has two options. (each, a "Renewal Option") of extending this Lease for two (2)
fifteen -year (15) periods ("Renewal Tertn(s)"), Lessee may not cxeroise either Renewal Option to extend
if the Lessee then has uncured detlrults on the teats and conditions of this Lease. To exercise the
applicable Renewal Option, the Lessee must not be in default under the terms and conditions of this Lease
beyond any applicable cure period following applicable notice, and Lessee must give Lessor written notice
by the latter of (x) the date which is three hundred and sixty five (365) days before the expiration date of
the current Lease Term or (y) the date thirty (30) days following written notice from Lessor advising
Lessee that Lessee has failed to ftrrnish notice of its exercise the applicable Renewal Option by the date
three hundred sixty-five (365) day before the expiration of the cutyent Lease Term, Which notice shall state
in bold capitalized large font letters that such. notice constitutes final notice to Lessee of its right to exercise
the applicable Renewal Option. Each Renewal Term will be en the same terms and conditions as the Lease,
except that the Rent will be adjusted. as set forth in Article IV below.
Section 3.3 Parking Facilities,
Prior to the issuance of a Certificate of Ocoupancy for the Parking Facilities, Lessor shall make its
best effort, or shall cause the MPA to make its best efforts, to make available to Lessee such parking spaces
as necessary to operate and open to the public the Permitted Uses prior to the completion of the Parking
Facilities, on the same basis as the Guaranteed Parking Spaces, in the existing parking garages and parking
lots owned or controlled by Lessor identified on Exhibit "F" attached hereto (the "Existing Parking
Facilities") However, Lessor's or MPA's failure to snake such parking spaces available shall not he
deemed a. default of this Lease. if Lessor and MPA have undertaken hest. efforts to make .available to Lessee
such parking spaces and, under such circumstances, the parties hereby agree to work cooperatively to find •
solutions that would permit Lessee to meet the parking requirements pursuant to Miami 21..
•
ARTICLE IV
RENT, FEES AND PAYMENTS
Section 4.1 Amount of Rent,
The Lessee covenants that it shall pay to the Lessor as Rent for the Property the greater of the
Initial Minimum. Base Rent (as defined in. Section. 4.1, t) or the Percentage Rent from the Possession Date
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of the Lease until six (6) months following receipt of a Certificate of Occupancy for the Parking Facilities,
including the Parking Facilities Retail Area ("Operation Date"). From .and after the Operation Date
forward continuously for the duration of the Lease Term, the Lessee agrees to pay an amount equal to the
greater of the Minimum Base Rent (as defined in Section 4.1,1) or Percentage Rent to the Lessor The
Parties. shall memorialize the Operation Date• through the execution of an appropriate document
establishing the exact date,
4.1.1 Minimum Base Rent.
From and after the Possession Date, the Lessee shall pay to the Lessor Minimum Base Rent
payable in advance on the first day of each month in equal .monthly installments. The Minimum Base Rent
shall initially be $1,4 .million per annum (the "Initial Minimum Base Rent"). and shall increase to $1.8
million per annum upon the Operation Date; provided however, that upon satisfaction of the Parking
Facilities Conditions, the Minimum Base Rent shall increase to $1.9 million per annum for the twenty four
(24) month period after satisfaction of the Parking Facility Conditions and $2.0 million per annum
thereafter. Notwithstanding the foregoing, if the Parking Facilities Conditions are satisfied, but only after
June 1, 2016, then the amount of the Minimum. Base Rent shall remain at $1,9 million and will not increase
to $2.0. million as set forth above and, if the Parking Facilities Conditions are satisfied, but only after
January 1,-2017, then the amount. the Minimum Base Rent.shall remain at $1.8 mullion for the duration of
the Lease (each subject to adjustment as set forth in following sentence), Following each of Lease Yearsl0,
20, 30, 40, 5. and 60, the Minimum Base Rent shall be adjusted. to equal the then applicable Fair Market
Rent, as determined pursuant to Section 4.3.2. Notwithstanding the foregoing, the parties acknowledge
that the calculation of Minimum Base Rent set forth above is based on the assumption that the Parking
Facilities Retail Area will contain 40,000 square feet of gross leasable retail space and, as such, the Lessee
will pay $400,000 of Minimum Base Rent or $10 per square foot per annum of gross leasable retail space.
As such, the amount of Minimum Base Rent set forth above shall be adjusted such that the Minimum Base
Rent shall equal $1.0 per square foot per annum of gross leasable retail space actually constructed by the
MPA. The Parties acknowledge that the Parking Facilities Retail Area may contain as much as 60,000
square feet of gross leasable retail space.
4.1,2 Consumer Price Index (CPI)' Escalation,
Lessee agrees that, except for the Lease Years ns of which Minimum Base Rent shall be adjusted
as provided in 4,1,1 above, the Minimum Base Rent shall be increased every five years (each, a
Escalation Year") from. the Lease Effective Date by an amount equal to the: percentage increase during the
prior year in the consumer price index ("Index"). which is the monthly index published by the Bureau of
Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items,
Miami•Ft. Lauderdale, Florida, Base Year 1982-14 =100, The CPI adjustment to Minimum Base Rent shall
be hereinafter referred to as the "CPI Escalation. The amount of the CPI Escalation. to. Minimum Base
Rent shall be capped. at five percent (5%). each time the CPI Escalation is made '(the "Maxinnun CPI
Percentage"). The first CPI Escalation shall be at Lease Year 5. The CPI adjustment set forth herein shall
not result in a reduction of the Minimum Base Rent.
The CPI Escalation of the Minimum Base Rent shall be equal to the Minimum Base Rent in effect
for the immediately preceding Lease Year multiplied by the "CPI Percentage" (as defined below) not to
exceed the Maximum CPI Percentage. The CPI Percentage shall equal the fraotion (i) whose numerator
equals the monthly Index published immediately prior to the new Lease Year (or the nearest. reported
previous month), and (ii) whose denominator is the same monthly Index published immediately prior to the
immediately preceding Lease Year (or the nearest reported previous month), If the Index is discontinued
with no successor Index, Lessor shall select a commercially reasonable comparable index.
Lessor shrill compute the CPI Escalations and send a notice, with calculations, to Lessee setting
forth the adjusted Minimum Base Rent within. sixty (60) days of the commencement of each' CPI Escalation
Year or as soon as such Index is available. Li the event the Minimum Base Rent. increases, Lessee shall pay
to Lessor within thirty (311) days of receiving such notice, the Additional Rent owed for the months that
have elapsed in the current Lease Year.
4.1.3 Percentage Rent.
Commencing on the Possession Date and continuing throughout the Lease Term; the Percentage
Rent shall be due and. payable to the Lessor. The Percentage Rent shall be an amount equal to the sum of
(x) the cumulative total of the following. percentages of Gross Revenue described in items (i) through (v),
below, and (y) the other amounts described in item (vi) due hereunder:
i) 5% percent of the Gross Revenues from the Formal Dining Restaurants;
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ii) 10.3% percent of the Gross Revenues from the Casual Restaurants;
iii) 15% percent of the Gross Revenues from marina operations (non-t iel);,
iv) 15% percent of marina gross fuel profits (gross Biel profits defined as gross fuel sale
price per gallon minus cost of delivered fuel per gallon);
v) 5%. percent of the Gross Revenue from any Marine Retail Store (excluding any -Marine
Retail Store within the Parking .Facilities Retail Area, which shall pay rent. pursuant to
(vi) below) and any ancillary sales from any other source within the Property, excluding
those sources identified in subparts (i), (ii), (iii), (iv) or (vi); and
vi) $10 per square foot per annum for all occupied or vacant retail spaces within the Parking
Facilities Retail Area and within the Other Permitted Retail Areas and (other than those
uses described. in items (i) through (v), above within such area, such that the Percentage
Rent payable tot' such retail uses shall be without duplication between categories) (the
"4.1.3 Rent"), Commencing with each of the Lease Years following_ Lease Years 1.0, 20,
30, 40, 50 and 60-(eaoh, an "Adjustment Lease Year"), the 4,1,3 Rent shall he adjusted. as
follows; (1) as of the commencement of the. first Adjustment Lease Year, the 4.1. 3 Rent
shall be increased to $1 1. 50•per square foot per annum; and (2) as of the commencement
of each subsequent Adjustment Lease- Year, the 4.1.3 Rent shall' be adjusted to equal the
product of (x) the 4.1.3 Rent in effect. immediately preceding such Adjustment Lease
Year, times (y) 50% of the percentage increase in Mininnim Base Rent, as determined
pursuant to Section 4.3.2, that will take effect as of the commencement of each applicable
Adjustment Lease Year.
The percentages used to determine the Percentage Rent described in items (i) through (v),
above shall not be subject to adjustment. The. parties recognize that the characterization
of a portion of the Property, e.g. as Marine Retail Store, or Non -Marine Retail, may
change from time -to -time. For example, a portion of the Property characterized for
purposes of Percentage Rent as non -Marine Retail may subsequently he occupied for a
Marine Retail use or a portion. of the Property used initially for a marine operations. use
may, upon completion of the Leasehold Improvements, be used for Marine Retail. For
avoidance of doubt, the characterization: of the use for purposes of determining
Percentage Rent' shall he adjusted as of the date the Lessee or its Sub -Lessee obtains a
new certificate of use (or its equivalent) for such new use.
If there is any underpayment of Percentage Rent, Lessee shall. pay the Lessor the amount of the
deficiency within thirty (30) days of the Lessor's receipt of the Percentage Rent payment. If the Percentage
Rent is not paid after thirty (30) days, Lessee shall he charged a late payment fee in accordance with
Section 16.4 until the amount of underpayment is paid in full.
4.1.4 Gross Revenues.
Gross Revenues shall include the entire amount of all revenues and percentages of
revenues actually collected and received. by the Lessee and its Sub -lessees or its Assignees (excluding
such revenues derived from the Parking Facilities Retail Area or any non -Marine Retail within the Other
Permitted Retail Areas) and derived from the following sales sources, including without limitation;
(i) all revenue from the commercial business and, services Lessee and its Sub-
lessees and/or Assignees conduct on or from the Property (except as otherwise
provided under this Lease);
(ii) all revenue from sale of food, beverage, wine, beer, merchandise or services
from the Property, excluding revenue derived from the rental for any event or
revenue earned by Third Party Caterer otherwise paying rental to Lessee in
connection with any event, which rental will be. included. in Gross Revenues
pursuant to subpart (viii), below;
(iii) all revenue derived from advertising and sponsorships conducted on the
Property, including but not limited to, movie; television commercials, etc.;
(iv) all amounts received from. any catering food operations in any way conducted at
or from the Property, excluding revenue earned by any' Third Party Caterer
otherwise paying rental to Lessee in connection with such special event, which
rental. will he included i.n Ciross Revenues pursuant to subpart (viii), below;
all amounts received by Lessee from valet concession sales or parking valet
services and calculated pursuant to Section 11.1(c) of this Lease;
(vi) delivery charges;
(vii) sales made or performed by means of mechanical or other vending sales and
services devices or machines on the Property, including without limitation, pay
telephones, vending machines, and entertainment devices 'both for cash and on
credit, rendered in or upon the Property, excluding revenue derived from the
rental'of any portion -of the Properly for any event or revenue earned by Third
Party Caterer. otherwise paying rental to Lessee in connection with any event,
• which rental will be included in Gross Revenues pursuant to subpart (viii),
below, •
(viii) all revenue received by Lessee in connection with events at any facility within.
the Property, or any portion thereof for any period of time, including without
limitation, banquets, parties, receptions held on or initiated from the Property,
which Percentage Rent will be calculated pursuant to Section 4,.1.3(v);
(ix): internet or telephone food/beverage orders received or tilled at the Property, -or
procured from the Property by house -to -house or other canvassing, all deposits
not refunded. to purchasers, and. orders taken, although said orders may be tilled.
elsewhere, including proceeds of all video games;
(x) all grants, subsidies, rebates, credits or similar benefits received from any
federal, state, regional or local body, agency, authority, department or
organization which revenues are actually received by Lessee and pursuant to the
terms thereof constitute unrestricted funds that may be used for general
operating expenses; provided, however, sales tax and federal income tax credits
for which Lessee may qualify shall be excluded. from the foregoing;
(xi) • all donations and contributions received, the revenues of which are actually
received by Lessee and pursuant to the terms thereof constitute unrestricted
funds that may be used for general operating.expenses; and
(xii) all. other receipts whatsoever derived from other commercial operations
conducted in or from the Property by the Lessee and its Sub -lessees (if any).
Gross Revenues shall not include the following;
(i) ' any sums collected and paid out by Lessee for any sales, use or excise tax
imposed by any federal, state or governmental authority directly on sales and
collected from customerss and accounted for by Lessee and/or Sub -lessees,
provided that the amount is added to the selling price therein and paid .by the
Lessee to such governmental authority;
(ii) the. exchange of merchandise between the stores of Lessee, a party controlled by
Lessee, or Sub -lessees, if any, where such exchange of goods or merchandise. is
made solely for the convenient operation of the business of Lessee and not for
the ptupose of consummating a sale which has theretofore been made in or from
the Property and/or for the purpose of'depriving Lessor of the benefit of a sale
which otherwise would be made in or from the Property,;
(iii) the amount of returns to shippers or manufacturers;
(iv) proceeds from the sale of trade fixtures, operating equipment or similar assets
after use thereof in the conduct of Lessee's and Sub -lessees' business on the
Property;
(v) all sums and credits received in settlement of claims for loss or damage to
merchandise;
(vi) funds collected with regard to the Property which are not actually related to the
day-to-day business of the Property such as, but not limited to the financing of
the Lessee's interest in the Property;
(vii) collection of insurance proceeds;
(viii) collection of eminent domain proceeds;
(ix) monies collected for events, to the extent any portion of such monies collected
are paid or delivered to the sponsor, so long as sponsor is not affiliated with
Lessee;
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(x) , all gratuities paid to employees;
(xi) amounts received by Lessee as reimbursements of expenses and cost sharing
(for example, reimbursement of taxes, maintenance, insurance or utility bills);
(xii) apy grants, subsidies, rebates, credits or similar benefits received by Lessee or
Sub -lessee from any federal, state, regional or local body, agency, authority,
department or organization;
(xiii) interest earned on Lessee's deposit accounts, earnings or profits on Lessee's
investments;
(xiv) interest income from loans or credit facilities granted. by Lessee and. similar
passive or .investment income of Lessee related to Lessee's liquid assets,
investments or loans/credit facilities granted. by Lessee;
(xv). rents or percentage rents and commissions paid to Lessee by any Sub -lessees
where the Lessor is collecting rent based on a percentage of Sub -lessee's Gross
Revenues..
(xvi). Amounts received by a valet parking. concessionaire when Lessee is' remitting
the respective percentage due to Lessor as provided pursuant to Section 11.1(c),
(xvii) Any restricted donations or contributions whose revenues are earmarked for
capital expenditures, as approved by the Lessor, to the Property.
(xviii) Interest and finance charges charged by Lessee,
If a safe is by .credit card, no deduction shall be allowed. for any commission associated with such
sale. A "sale" shall br deemed. to have been consummated for the purpose of this Lease, and the entire
amount of sales price collected by Lessee and Sub -lessees shall. be included in Gross Revenues, at such
time that (i) the transaction is initially reflected in the books or records of Lessee or Sub-lessee(s); or (ii)
Lessee or Sub-lessee(s) receives all or any portion. of the sales price; or (iii) the applicable goods or
.services are delivered to the customer and payment is made to Lessee or Sub-lessee(s), whichever first
occurs, irrespective of whether payment is made in installments, the sale is for dash or fbr credit, or
otherwise, or all or any portion of the sale price has actually been paid at the tune of inclusion in Gross
Revenues or at any other time,
No deduction shall be allowed for direct or indirect discounts, rebates, or other reductions on.sales,
unless generally offered to employees or the public on a udifornn basis, within the applicable restaurant or
retail establishment, Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be
recognized. at such time as provided in the foregoing paragraph. 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. Gross Revenues shall be reduced by the
amount of any refund made upon any sale in or from the Property, provided said amounts had been
previously included in "Gross Revenues," not to exceed the stun so previously included, where the
merchandise sold is thereafter returned by the purchaser and accepted by the Lessee or Sub -lessees, and if
such refund is in: the form of a credit to customer, such credit shall be included in Gross Revenues when
used, Lessee shall be entitled to.deduet'from any amount originally included in Gross Revenues any portion
thereof which is determined .by Lessee to be uncollectible" after ninety (90) days following the date such
amount was originally due and payable •to Lessee.
4.1.5 Sales Tax. •
The Lessee shall be liable for the prevailing State. of Florida Use Tax imposed on the amount of
rent paid to Lessor under this Lease, in the absence of'an exemption or other reduction by the State of
Florida: This Sales anu Use Tax shall be payable to the Lessor when refit is due, and in. turn, Lessor will
remit the same, less any authorized handling deductions, if any, to the State. Said tax is applicable to the
Minimum Base Rent payments, unless otherwise determined. by the State of Florida,
4.1.6 Manner of Payment. .
Every 15th day of the calendar month, Lessee shall pay the Lessor the monthly Initial Minimum
Base Rent or Minimum Base Rent. and the difference between such amount and Percentage Rent, as
applicable,. and shall deliver such payment along with the corresponding Gross Revenue Report for the
preceding calendar month to the City of Miami, Department of Finance at the address noted below,
City of Miami
Department of Finance
11
Attention: Treasury Management/Receipts
444 SW 2nd Avenue, Gth Floor
Miami, Florida 33130
Lessee shall use a Gross Revenue Report, a sample of which is attached herewith and incorporated herein
as Exhibit 0/G" to itemize any and all reportable Gross Revenues as described in Section 4,1.4 herein. For
avoidance of doubt, the Percentage.Rent clue by Lessee to Lessor will be calculated. on a Lease Year basis
and, as such, the parties will- reconcile the final amount of Rent due by Lessee for any applicable Lease
Year by no later than ninety (90) days after the end of each Lease Year, and the Lessee shall pay to Lessor
any underpayment in Rent (after determining that die amount of Percentage Rent due in. such Lease Year
exceeds the amount paid in Rent by the Lessee in such Lease Year) within thirty (30) days thereof or, if
applicable, the Lessor shall pay to Lessee (either, at Lessor's option, by rent credit or in cash) any
overpayment, in Rent.(after determining that the amount of Rent paid by Lessee is such Lease Year exceeds
the greater of the Minimtun Base R.ent or the Percentage Rent due in such Lease- Year).
Section 4.2 Security Deposit,
Simultaneously with the execution of this Lease on the Effective Date, Lessee shall. initially
deposit with. the -Lessor, the sum of nine hundred thousand dollars ($900,000), which shall be equal to 50%
of the annual Minimum Base Rent ("Security Deposit") in the form of cash, which may be applied from the
Good. Faith Escrowed Funds; or in the form of a letter of credit, The Security Deposit shall be adjusted in
the manner described- in Section 4,3.1 herein. The Security Deposit shall be maintained by Lessor in an
interest -hearing money market account; all interest accrued from tine to time thereon shall be paid to
Lessee on an annual basis throughout. the Leitse Tenn,. by no later then fifteen days following the end. of
each calendar- year. For so long as the Security Deposit has not been repaid. by Lessor, it shall constitute an
accotmt payable by Lessor to Lessee .within thirty (30) days following termination of this Lease to the
extent, if any, that the Security Deposit has -not been applied by Lessor as hereunder provided.
If Lessee shall default with respect to any covenant duty, or obligation of Lessee under this Lease,
then the Security Deposit or any part thereof may be applied by Lessor after the satisfaction. of any relevant
Cure- Period (but Lessor shall not be obligated to do so) to- the damages sustained by Lessor by reason of
any such default or to indebtedness owing by reason of any tailure of Lessee to make any required
monetary payment under this Lease-. No such application shall he 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 nor recovered in full from the Security Deposit shall remain in hall .force and effect.
At. any time.or times when Lessor has made any such application of all or any part of the Security Deposit,
Lessor shall have the right (but not. the obligation) at any time thereafter to- request in writing that. Lessee
pay to Lessor a sutn or sums equal to the amounts so applied. by Lessor so that. Lessor will always be in
possession of a sum equal to 50% of the annual Minimum Base Rent. Lessee shall make each such
requested remittance within fifteen (15) clays following -such request from Lessor and. each such remittance
received by Lessor shall thereupon constitute a part of the Security Deposit subject to the terms and
provisions thereof. Failure to make any such. requested remittance within such ten (10) day period. May bo
treated by Lessor as a failure by Lessee to make timely payment .of rent and as a Lessee Default. In the
event of any conveyance or other transfer of the Property by the Lessor, Lessor's remittance of the Security
Deposit or any remaining portion thereof to the purchaser of the Property shall release and relieve Lessor of
any further obligation or liability to Lessee with respect to the Security Deposit,
Section 4,3 Adjustments to Rent.
The Security Deposit shall he adjusted from time -to -time, at such time as- the Minimum Base Rent
shall be adjusted., as otherwise provided. herein, such that the Security Deposit shall at all tunes be equal to
fifty percent (50%) of then applicable yearly Minimum Base Rent. In the instance where the Lessor deducts
any amount of the Security Deposit, the Security Deposit shall be replenished by the Lessee to the extent
necessary to restore the Security Deposit to the adjusted amount of the Security Deposit, 'within fifteen (15)
days of the drawdown r..f the Security Deposit
4,3.2 Appraisal Rent Adjustment,
43,2,1 Determination of Fair Market Rent.
The Minimum Base Rent shall he evaluated in accordance with the procedures set forth in this
Section 4.3.2 (each,- a "Scheduled Appraisal") to determine the current Fair Market Rent for Minimum
Base Rent and the required adjustments to these values,
12
4.3.2.2 Appraisers. No later then three hundred and sixty-five (365)-days prior to the end of
each of Lease Years 10, 20, 30, 40, 50 and 60, Lessor shall deliver to Lessee a determination of the Fair
Market Rent, in accordance with the criteria set forth herein applicable to the determination of Fnir Market
Rent. The determination of Fair Market Rent provided by Lessor shall be conducted by an independent
commercial real estate appraiser who is a member of the American Institute of Real Estate Appraisers and
who has not less than ten (10) years experience in appraising properties comparable to. the Property (a
'Qualified' Aupraiser" ). Lessor shall pay for the appraisal, Lessor shall select its Qualified Appraiser from
the City's general appraisers' services list, In no event shall an appraisal result in a reduction in .the
minimum rent due to the City. The Qualified Appraiser shall be hired the year prior to the Lease Year (i.e.
Lease Years 9, 19, 29, 39, 49 and 59) that the newly appraised Minimum Base Rent shall commence to take
effect (each, an "Adjustment Lease Year"). In• the event that Tenant shall dispute the determination of Fair
Market Rent made by Lessor's Qualified Appraiser, then, Lessee shall,. within thirty (30) days following its
receipt of the determination made by Lessor's Qualified .Appraiser, select its own real estate appraiser, who
shall also be a Qualified Appraiser (though Lessee's Qualified Appraiser shall not be required to be on the
City's general appraisers' service list). Lessee shall pay the- costs of Lessee's Qualified Appraiser, The
Lessor's Qualified Appraiser and the Lessee's Qualified Appraiser shall then have a period of thirty (30)
days tollowing the selection of Lessee's Qualified Appraiser within which to attempt, in good faith, to reach
agreement on the Fair Market Rent for the Property. If Lessor's Qualified Appraiser and Lessee's Qualified
Appraiser are .unable to agree upon the Fair Market Rent within such thirty (3-0) day period, then the Fair
Market Rent shall be determined in accordance with the methodology set forth below:
Within fifteen (15) days following the expiration of such thirty (30) day period, Lessor's Qualified
Appraiser and Lessee's Qualified Appraiser shall endeavor to mutually agree upon an independent
commercial real estate appraiser who. shall be a Qualified Appraiser. If the Lessee elects, the pool of
Qualified Appraisers shall exclude any appraiser on the City's general appraisers service list. If the Lessor's
Qualified. Appraiser. and Lessee's Qualified Appraiser are unable to agree on such third Qualified Appraiser,
Lessor and Lessee shall apply .to. the American Arbitration Association for designation of an appropriate
third Qualified Appraiser. The Qualified Appraiser so selected or designated by the American Arbitration
Association. is hereinaft jr referred to as the "Third Appraiser,"
Within ten (10) days following the selection of the Third Appraiser, Lessor's Qualified .Appraiser
and Lessee's Qualified Appraiser shall each submit to the Third Appraiser their respective final
determinations of the Fair Market Rent,. Within thirty (30) days thereafter, the Third'Appraiser shall select,
as the Fair Market Rent, either the .determination .submitted by Lessor's Qualified Appraiser or the
'determination submitted. by Lessee's Qualified Appraiser. The Third Appraiser shall not select any amount
as the Fair Markel. Rent, other than the amount submitted by either the Lessor's Qualitied Appraiser or the
amount submitted by the Lessee's Qualified Appraiser.
The Third Appraiser shall notify both Lessor and Lessee, in writing, which of the two
determinations the Third Appraiser has selected as the Fair Market Rent. The selection of the Third
Appraiser shall be final and binding on both Lessor and Lessee and the Fair Market Rent, as selected by the
Third Appraiser, shall be the Minimum -Base Rent,which shall take effect commencing as of the beginning
of the applicable Adjustment Lease Year.
4.3,2.3 Method.
Each Qualified Appraiser shall determine the Fair Market Rent based on the parameters set forth
in the definition thereof set 'forth in Section 1,1,13. Each Qualified Appraiser, in its discretion, may
dispense with formal hearings, it being agreed that his task will bo solely that of appraisal,
4.3.2.4 Effect of Appraisal.
The Fair Market Rent determined in accordance with the procedures set forth in this Section 4,3,2
shall be binding and conclusive on the Lessor and the.Lessee, except that in no event shall the Fair Market
Rent. be adjusted below the then'applicable Minimum Base Rent for such Lease Year,
4.3.2,5 Anpraisnl Fee.
The Lessee shall be responsible for one hundred percent (100%) of the costs associated with the
hiring of the Lessee's Qualified Appraiser; and Lessor shall be responsible for one hundred. percent (100%)
of' the costs associated with the hiring of the Lessor's Qualified Appraiser. In the event the Lessee disputes
the first appraisal, the costs associated with the hiring of the Third. Appraiser shall be paid by the party
whose Qualified. Appraiser's determination of Fair Market Rent is not selected by the Third. Appraiser;
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provided, however, if Lessee elects to exclude from the pool of Qualified Appraisers any appraiser on the
City's general appraiser's service list, then Lessee shall pay the Lull cost of the Third Appraiser,
4.3.2,6 Delayed Appraisal.
If prior to the commencement of the Adjustment Lease Year, the adjusted Minimum Base Rent has
not been determined by independent appraisal in accordance with the procedures set forth in this Section
4.3.2, the Lessee shall continue to pay all then applicable Rent(s), as may have been previously adjusted
pursuant to the terms of this Lease.
Following the determination of the Rent by independent appraisal, in accordance with the
procedures set forth it this Section 4.3.2, the Rent will be adjusted as provided retroactively to the
com tnencement, as applicable, of the next following Adjustment Lease Year, and, if necessary, the Lessee
shall pay to the Lessor with the next installment of Rent due, the amount, if any, by which the Rent, as
adjusted, exceeds the Rent that•has been paid:by the Lessee tbr the retroactive period.
Section. 4,4 Submerged Land Fees
In. addition to the rent described in ,Sections 4,1.1 to 4.1.2 herein, commencing upon the later of
the Effective Date of this Lease or the effective date of an agreement with the DEP for use of the
Submerged Lands, Lessee shall be obligated to pay all Submerged Land. Fees as determined by the DEP for
the use of the Submerged Lands and pay for alt• expenses incurred in obtaining the State's approval and
waiver, The annual Submerged Lands Fee shall be paid to the City at the same location as the Minimum
Base Rent and the City shall remit payment to DEP. Lessee shall remit the annual Submerged. Lands. Fees
to the City within. five (5) thirty (30) Business Days of Lessee being billed by the City forlhe same. Lessee
shall further be obligated to submit to the Lessor for remittance to DEP any and all documents required by
DEP which may include, but is not limited to, disclosure of any income -from wet slips for the Submerged
Lands.
Except as otherwise provided, the annual Submerged. Lands Fee shall be as provided in Florida
Department of Environmental Protection, Administrative .Rule.18-21.A11(l.)(b), as may be amended, and
subject to yearly consumer price.index (CPI) increases by DEP, •
Section 4.5 Lessee's Records,
To the extent 'Gross Revenues generated by Lessee or any Sub -lessee (an '•Applicable Sub-
lessee") are applicable to the determination of any Percentage Rent hereunder (the "Applicable Gross
Revenues"), Lessee shall prepare and keep or shall use commercially reasonable efforts to cause Applicable
Sub -lessees to prepare and. keep, full, complete and proper books and source documents in accordance with
generally accepted accounting principles, of the Applicable Gross Revenues, whether for cash, credit or
otherwise, of each separate department at any time operated in" the Property. The books and source
documents to be kept by Lessee (and Applicable Sub -lessees) shall include, without limitation, true copies.
of all federal, state and local tax returns and :reports; records of inventories and •receipts of merchandise,
daily receipts from all sales and other pertinent original sales records and records of any other transactions
conducted in or from the Property by Lessee.
Pertinent original sales records may include any of the following,: (i) sales reports of back office
systems fed from point of sale terminals, (ii). cash register tapes, including tapes from tempormy registers,
if any, (iii) serially pre -numbered sales slips, (iv)" the original records of all mail, internet and telephone
order's at and to the Property, if any, (v) settlement report sheets of transactions with any person.conducting
business in the Premise, if any, (vi) original records indicating that merchandise returned.by customers was
purchased at the Property by such customers, (vii) memorandum receipts or other records of merchandise
taken .out on approval, (viii) detailed original records of any exclusions or deductions from Gross
Revenues, (ix) sales tax records, and (x) such other sales records, if any, which would normally be
examined by an independent accountant pursuant to accepted auditing standards in performing an audit of
Lessee's sales. Lessor and Lessee acknowledge and agree that, during the Lease Term, .and in connection
with certain Sub -leases, not all of the foregoing sales records may be maintained;. however,. Lessee hereby
agrees to maintai❑ (or to use commercially reasonable efforts to cause any Applicable Sub -lessee to
maintain) all such sales records as shall, in accordance with commercially reasonable standards, be required
in connection with the determination of Applicable Gross Revenues, where applicable to the determination
of any Percentage Rent hereunder.
Subject to the preceding paragraph, Lessee shall record (or use commercially reasonable efforts to
cause any Applicable Sub -lessee to record), at the time of each sale or other transaction, in the presence of
the customer, all receipts from, such sale or other transaction, whether for• cash, credit or otherwise, in a
cash register or cash registers having a cumulative total which shall be sealed in a manner approved by
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Lessor and. which shall possess such other features as shall be reasonably required. by Lessor. Lessee shall
be required to. install (and to use commercially reasonable eftbrtst.o cause Applicable Sub -lessees to install)
point of sale terminals, pollable, point ot'sales cash register systems or such other point of sale equipment
of a make and.model mutually agreed to by the Parties,
Section4.6 Reports by Lessee.
Within ninety (90) days after the end of each Lease Year, Lessee shall also furnish to Lessor a
certified financial report (i.e. a gross revenue audit) by an independent certified. public accountant (the
"Annual Report.") showing in all reasonable detail of the amount of such Applicable Gross Revenues made
by Lessee and Applicable Sublessees from the Property during the preceding Lease Year. Lessee shall in
a II events furnish to Lessor within fifteen (15) days after the end of each month of the Lease Tenn a written
statement of Applicable Gross Revenues covering the preceding month, the statement to be in such form.
and style and contain snob details and breakdown as Lessor may reasonably require. Lessor acknowledges
and agrees. that, ,with respect to Applicable Gross Revenues generated by any Applicable Sub -lessee,
Lessee shall rely on the reporting made by each such Applicable Sub -lessee with respect to its Applicable
(:cross Revenues and shall have no liability whatsoever for reporting errors made by any such Applicable
Sub -lessee; provided,. however, Lessee shall use commercially reasonable efforts to include in each
sublease with any Applicable Sub -lessee reporting requirements with respect. to Applicable Gross Revenues
consistent with the reporting requirements applicable to the•operations of'Lessee.herettnder.
Section 4.7 RiRht to Examine Books,
Notwithstanding the acceptance by Lessor of payments of Minimum Base Rent and Percentage
Rent, Lessor shall have the right to all Rents and other charges actually due hereunder, and the right to
examine, make extracts from and, copy, at the Property or Lessee's main accounting office, Lessee's books,
source documents, accounts, records and sales and income tax reports filed with applicable government
agencies by Lessee in order to verify the amount of .Applicable Gross Revenues in and from the Property.
For a period of five (5) .years after the expiration of each Lease Year, Lessee shall make (or use
commercially reasonable efforts to cause any Applicable Sub -lessee to make) all such documents and
reoords available at the Property or Lessee's main accounting office upon ten ('10) days' prior written notice
from Lessor. The Lessee will establish one or more hank accounts to deposit all Gross Revenues
recognized froin the operations on• the Property, which hank. account .deposits will not be cbtningled: with
the revenue from any other operations of the Lessee or any other affiliated companies.
Section 4.8 Audit.
(a) At its option, Lessor may at any time, upon ten (10) days ' prior written notice to Lessee,
arrange for an auditor selected by Lessor to conduct a complete audit (including a physical inventory) of .
the applicable records and operations of Lessee and each Applicable Sub -lessee included in Applicable
Gross Revenues from the Property during the period covered by any statement issued. by Lessee. Lessee
shall make available (or use commercially reasonable efforts to cause any Applicable. Sub -lessee to make
available) to the Lessor s auditor at the Property or Lessee's main accounting office on the day set forth in
Lessor's notice, requiring such audit, all of the applicable books, source documents, accounts and reoords
referred to in Section 4.6 hereof and any other materials which such auriitor reasonably deems necessary or
desirable for the purpose of making such audit. Lessee shall promptly pay to Lessor the amount of any -
deficiency in Percentage Rent payments disclosed: by any such audit; If such audit shall disclose that
Lessee's statement of Applicable Gross Revenues is understated to the extent of five•pereent (5%) or more,
then, unless Lessee shall dispute the results of such audit, Lessor may bill to Lessee the cost of such audit,
which shall be paid by Lessee within thirty (3.0) days after Lessee's receipt of Lessor's invoice. If such
audit shall disclose. that Lessee's statement of Applicable. Gross Revenues is understated to the extent of ten
percent (10%) or more, then, unless Lessee shall dispute the results of such audit, Lessor, in addition to the
foregoing remedy and other remedies available to Lessor, shall have the option, upon Lessee's failure to
pay such additional sums within thirty (30) days after written notice to the Lessee, to declare Lessee to be
in default. hereunder, in which event, Lessor shall, be entitled to all of the remedies set forth in Article XVI
below. In addition to the foregoing, and in addition to all other remedies available to Lessor, in the event
Lessee's auditor and Lessor's auditor shall schedule a date for an audit of Lessee's records in accordance
with this Section 4,8, and Lessee shall fail to be available or shall otherwise fail to comply with the
requirements for such audit, Lessee shall pay all costs and expenses associated with the canceled audit,
(b) In addition to all other remedies available to Lessor,. in the event that any such audit shall
disclose that Lessee's records and other documents as referred to in Section 4.4, 4.5 and 4.6 hereof and such
other materials provided by Lessee to Lessor's auditor are inadequate, in the opinion of an independent
15
auditor serving as Lessor's auditor, to disclose accurately Lessee's Gross Revenues, then Lessee shall have
thirty (30) days to cure any deficiencies raised by Lessor's auditor and shall then notify Lessor so that
Lessor's auditor can continue its audit, Lessor's exercise of the foregoing remedy shall in no way limit or
otherwise affect Lessor's ability to exercise other remedies available to it, nor shall Lessee's obligations
pursuant to the terms, covenants and. conditions- of' this Lease (including, without limitation, Lessee's
obligation with respect to reporting Gross Revenues and. payment of' Percentage Rent) be in any manner
reduced or diminished by the exercise of such remedy, Notwithstanding anything herein to the contrary, to
the extent that Lessee shall fail to provide to- Lessor any required reporting or records with respect to
Applicable Gross Revenues as a consequence of any Applicable Sub -lessee's failure to timely furnish to
Lessee any required reporting or records with respect to the Applicable Gross Revenues generated by such
Applicable Sub -lessee, then, provided that Lessee shall take all commercially reasonable measures
pursuant to the terms of the applicable sublease to enforce the requirements of such sublease with respect to
producing such reports or records, Lessee shall have no liability to -Lessor in connection therewith, but shall
promptly commence to take all commercially reasonable efforts to terminate such sublease, and, in
connection there with, to. recover all Applicable Percentage Rent due in connection with the Applicable
Gross Revenues generated by such Applicable Sub -lessee and to account to Lessor for same.
Section 4,9 Lien for Rent, •
The whole amount of the Rent, Additional Rent, and. each and. every installment, and the amount
of all taxes, assessments, water rates, insurance premiums and other charges and Impositions paid by the
Lessee under the provisions of this Lease, and all costs, attorneys fees and other expenses which may be
incurred. by the Lessor in enforcing the provisions of this Lease, or on account 'of any delinquency of the
Lessee in.canying 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. Lessor hereby agrees that
in the event Lessee shall obtain financing in connection with the Project which may entail granting to any
Leasehold. Mortgagee or other lender providing such financing a Leasehold Mortgage or other
encumbrance upon all or any portion of the Leasehold Improvements, the Lessee's Leasehold Estate, or any
personal property belonging to- Lessee, Lessor shall subordinate its lien over and upon the Leasehold
Improvements, Lessee's Leasehold Estate and any such personal property belonging to Lessee, pursuant to
such commercially reasonable form of a subordination agreement as such. Leasehold Mortgagee or other
lender shall request. .
Section 4,10 Parking Trust Hind Contribution.
The Lessee shall be required. to contribute S10,000 per parking space required to meet the Lessee's
parking requirement pursuant to, the RFP. Based on the development contemplated by the Proposal, the
Lessee's total contribution to the Parking Garage. Facilities shall be $4,970,I00 for a total of 497 parking
spaces, which amount may be adjusted as set. forth below ("Parking Trust Fund Contribution"). Lessee.
hereby elects the option of financing a portion of the Parking Trust Fund Contribution; therefore, as of the
Effective Date of the Lease, the Lessee shall transfer $1,242,500•of the Good Faith Escrowed Funds to the.
Lessor with the remainder of die amount of the Parking Trust Fund Contribution (in the amount of
S3,727,500 plus any additional bond issuance cost) to be financed by the MPA fully amortized over a
twenty (20) year tern at six percent (6%) interest and the corresponding payments to such financed amount
constituting Additional Rent. The Lessee shall pay each installment -of debt service for the balance of the
Parking Trust Fund Contribution: by cashier's .check or money order and delivered to the Finance Director,
444 SW 2" `r Avenue, 7"' Floor, Miami, Florida 33130, If the MPA has not obtained building. pennits for,
and commenced construction of, the Parking Facilities by January 1, 2015, then the Lessor shall retnm the
Parking Trust Fund Co itribution to the Lessee. The Parties acknowledge that the final calculation of the
Parking Trust Fund Contribution may fluctuate based on the actual gross leasable retail square footage
constructed by the MPA as Parking Facilities Retail Area; therefore, the actual amount of the contribution
will. be adjusted (based on the formula set forth in the RFP) upon completion of the Parking Facilities
Retail Area with the MPA financing the maximum percentage of such contribution as permitted in the RFP.
Section 5.1
ARTICLE V
PAYMENT OF TAXES, ASSESSMENTS
AND OTHER IMPOSITIONS
Payment of'fnxes and Impositions
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Lessee shall pay before any 'fine, penalty, interest or costs are added for nonpayment, any and all
Impositions levied against the Property or against personal property of .any kind, owned by or placed in,
upon or about the Property by Lessee.
Section 5,2 Installment Payments of Ad Valorem Taxes and Impositions
Lessee agrees that to the extent the Property or any interest thereon is subject. to ad. valorem
taxation, Lessee, at its option, may enroll in the Miami -Dade County Ad Valorem Tax Payment Plan.
If by law, any taxes, assessments or other Impositions are payable or may, in the case of taxes, at
the option of the taxpayer, be paid in installments (whether or not interest shall accrue on the unpaid
balance of the Imposition), the Lessee may pay the same (and any accrued. interest on the unpaid balance of
the Imposition), in installments betbre any fine, penalty, interest or cost is added for the nonpayment of any
installment and interest. Any Imposition relating. to a fiscal period of•the taxing authority, a part of which
period is included before the Effective Date and part of which is included. after the Effective Date shall be
adjusted as between the Lessor and the Lessee as of the Effective Date of the Lease Term, so that the
Lessee shall pay that portion of' the Imposition attributable to that part of the fiscal period included in the
Lease Tenn, and the Lessor shall pay' the remainder, if applicable,. Any Imposition relating to a fiscal
period of the taxing authority, a part of which period is included. within the Lease Term•and a part of which
is included in a period of time after Lease 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 term ot'this Lease, and the Lessor shall pay the
remainder, if applicable.
Section 5,3 Proof of Payment,
The Lessee shall furnish to Lessor, within thirty (30) days after the date whenever any Imposition
is payable by or in behalf of the Lessee, official receipts of the appropriate taxing authority, photocopies or
other proof satisfactory to the Lessor, evidencing the payment.
•Section 5,4 Lessee's Right to Contest Impositions.
Anything herein to the contrary notwithstanding,Lessee shall have and retain the right to appeal or
contest by legal proceedings, or in such other manner as it may deem suitable, any Imposition, or any
valuation in connection therewith, and to defer payment of any such contested item, without the consent of
Lessor, even if the same ultimately results in the payment of any interest, costs or penalties. In the event
that Lessee contests any Imposition, Lessee shall immediately notify the City Manager or his/her
authorized designee o.f its intention to appeal said Imposition.
If at any time during the last three (3) years of the initial Lease Terin or Renewal Term, Lessee
shall contest an Imposition, Lessee may defer payment of a contested item -upon the condition that, before
instituting any such proceedings, Lessee shall tbniish and keep in effect a surety bond, cash deposit or other
security satisfactory to the City Manager of his/her designee in an amount sufficient to pay one hundred
percent (100%) of' the contested Imposition or assessment, with all interest on it and costs and expenses,
including reasonable attorneys' fees to be incurred in connection with it. The legal proceedings herein
referred to shall include appropriate proceedings to review tax assessments and appeals from an order
issued therein and appeals from any judgments, decrees or orders. Any such contest shall delay the time
periods set forth in Section 5.2 above,
Lessee agrees to pay such Impositions in a lump sum payment or on an installment basis. Failure
of the Lessee to pay such Impositions or assessments or, any installment payment thereof shall constitute a
default under this Lease. '
Iri connection with any appeal or contest of Impositions instituted by Lessee, upon written request
by Lessee to Lessor, Lessor shall cooperate with Lessee in connection with any such appeal or contest,
including, but not limited to, executing such documents or affidavits when and as may be reasonably
required in connection therewith; provided, however, Lessee shall pay the reasonable .costs incurred by
Lessor therefbr.
ARTICLE VI
LEASEHOLD IMPROVEMENTS
Section .6.1 Lessee's Obligation to Provide and Fund Leasehold Improvements.
. Within one hundred eighty days (180) days of the Effective Date, Lessee, at its own cost and
expense, shall submit to Lessor its plans for the connnencement and completion of the construction, and the
acquisition and installation of the Leasehold Improvements, The plans shall include; a layout of the
Property (excluding the Parking Facilities Retail Area), a lighting plan, a depiction of all fixtures to be
17
added to Property, interior and exterior finishes and material samples, typical display technique, interior
and exterior signage plan, landscaping plans, store front and any work or equipment to be done or installed
by Lessee affecting. any structural, mechanical or electrical part of the- Property ("Plans"). Within ten (10)
Business Days of receipt of the Plans, the Lessor shall give Lessee written notice of either, Lessor's
approval or Lessor's. disapprovnl setting forth the reasons therefor. The Lessor may only disapprove of the
Plans upon- a finding by the City Manager that the Plans contain material variations from the plans arid
specifications set forth in the Proposal. In the event. that Lessor disapproves the Plans, the Lessee shall
within fifteen (15) Business Days of receipt of the notice modify the Plans in accordance with the reasons
set forth in Lessor's disapproval notice. The modified Plans shall be resubmitted. to Lessor for Lessor's
final review and approval, in accordance• with the standards of review set forth above; Lessor shall have a
period of ten (10) Business Days following receipt of such revised. Plans within which to review same and
furnish to Lessee written notice of' Lessor's approval or disapproval. If Lessor shall fall to furnish to Lessee
written notice or Lessor's approval or disapproval of the Plans or revised Plans submitted to Lessor, within
the time frame set forth above, then the time frames set forth herein to complete. construction. of' the
Leasehold Improvements shall he extended by the number of such additional days taken by Lessor to .
provide written notice of Lessor's approval or disapproval of the Plans or the revised Plans submitted to
Lessor, as the case may be. Notwithstanding the above, the Lessee shall cause the new dry rack storage
slips to be installed. as soon as reasonably possible following the removal by Licensee of the diy rack
storage slips currently on the Property, and in any event, within one hundred and eighty days (180)
following the Possessioi Date.
Lessee, at its sole cost and expense; shall complete construction, acquisition and installation of the
initial Leasehold. Irnprovenrents as more fully described. in Exhibit "A" attached hereto and made a part..
hereof, and acquireand install the Ibmishings, fixtures and equipment required for operation of the
Property within three hundred and sixty five (365) days from the receipt of all required permits for
construction of the approved Plans (except for the Dry Rack. Storage Slips which shall he installed within •
one hundred and eighty (180)' days following the Possession Date, as provided above), Lessee hereby
covenants that Lessee shall expend no less than Seventeen Million Nine Hundred Seventy Thousand
Dollars ($ 17,970,000,00) ("Minimum Level of Investment") in connection with the Project, which shall
inchrde, without limitation; (i) all soft and hard costs and expenses incurred. by .Lessee to complete all
capital Leasehold Improvements, including, without limitation, building, facilities, docks. and equipment,
(ii) all environmental remediation costs, paid by Lessee or on its behalf, (iii) the $1,000,000 Security
Deposit and (iv) the Parking Trust Fund Contribution, Upon completion of the construction, acquisition
and installation of the Leasehold Improvements, and acquisition and installation of the furnishings, fixtures
and equipment, Lessee shall furnish to Lessor copies of receipts, releases and bill ot'sales in connection
therewith as shall be required to reasonably demonstrate Lessee's achievement. of the Minimum Level of
Investment.
Section 6.2 • Payment and Performance Bond.
Prior to the commencement of any construction, the Lessee shall, at Lessee's sole cost and
expense, cause Lessee's general contractor to fbrnish the Lessor with a Payment and. Performance Bond.
The Payment and Performance Bond shall be issued by a bonding company which shall be
approved by Lessor, in an amount equal to one hundred percent (100%) of the hard costs to construct the
Leasehold Improvements, 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 const•0otion work pertaining to the Leasehold Improvements; free of construction or other
liens, The conditions of the Payment and Performance Bond shall. he to insure that the Lessee or -Lessee's
general contractor will;
(i) promptly make payment to all claimants, as defined in Section 255.05, Florida
Statutes (2012), as amended, supplying the Lessee with labor, materials, or supplies, used directly
or indirectly by the Lessee in the prosecution of the work related to the Leasehold Improvements
under this Lease; and
(ii) to pay the Lessor all losses, damages, expenses, costs, and attorneys fees,
including appellate proceedings, that. the Lessor sustains because of the Lessee under this Lease
pursuant to claims made under Section 255.05, Florida Statutes (2012), as amended; and
(iii) perform the guarantee of all obligations of the Lessee's under this Lease with
respect. to the construction, and the acquisition and installation of the Leasehold Improvements.
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The Payment and Performance Bond may be terminated at such time as the construction, and the
acquisition and installation of the Leasehold Improvements are completed as evidenced by issuance of a
certificate of occupancy and reasonably satisfactory evidence thereof is provided by the Lessee to the City
• Manager, including certification by the Lessee's architect that all requirements of the Payment and
Performance Bond have been satisfactorily concluded: The form of the Payment. and•Performance Bond, a
sample of which is attached herewith by reference as Exhibit "H," shall be approved by the City Manager,
which approval shall. not be unreasonably withheld.
The Lessor agrees that in the event the Lessee cannot. obtain the above Payment and Performance
Bond, the Payment and Performance. Bond may be provided by the general contractor (s) (in an amount.
acceptable to the Lessor with. respect to the work to be performed by the general contractor(s), in lieu of
the Lessee. providing the same as Principal of the Project. Said Payment and Performance Bond(s) shall
comply with all the requirements listed under in subsections (i) through (iii) above.
. Section 6.3- Contractor's Insurance
The Lessee shall require every contractor pertbrming any work pertaining to the Leasehold
Improvements to furnish certificates of insurance including Builder's Risk Insurance, if applicable,
satisfying the Lessor's customary and. commercially reasonable requirements therefor, protecting the Lessor
and its respective commissioners, officers, agents, and employees, against any claim for personal injuries,
death and property damage that may be asserted because of the construction, or the acquisition or
installation of the Leasehold Improvements,
Section 6.4 Additional Consideration,
(a) • The Lessor hereby, ih consideration for the promises and covenants contained in this
Lease to be kept aniperformed by the Lessee, shall simultaneously with the execution of this Lease on the
Effective Date, grant and convey unto the Lessee all. existing Improvements (including improvements,
furnishings, fixtures and equipment) listed in Exhibit "I",: in its "as is" and "where is" condition. (b)
The Lessee hereby, in consideration of the granting of this Lease shall upon .termination or
expiration.of this Lease:
(i) grant and convey unto the Lessor,. free and clear of all. liens, title to all
Leasehold Improvements of a. permanent character (including,. for avoidance of doubt, all
dry Packs, but excluding all trade fixtures, furnishings, equipment and movable personal
property such as, without limitation refrigerators, stoves, freezers, hood systems, grills,
.and dishwashers); and
(ii) In addition to the Leasehold hnprovements 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 trade fixtures, furnishings, equipment and personal property added
to or installed .at the Property by the Lessee during the Lease Term, including all
furnishings and equipment at then fair market value thereof, as determined. by an
appraisal, provided that the Lessor by notice in writing to the Lessee of at least forty five
(45) days prior to the expiration, or earlier termination of the Lease Term, notifies the
Lessee of its election.
Section 6,5 Lessor's Property to Remain Free of Liens.
The Lessee shall make, or cause to be made, prompt payment of all money due and legally owing
to all persons doing any work, including subcontractors; or providing supplies and equipment in connection
with the construction, reeonstructi.on. or operation of the Property. The Lessee shall have no power or right
to and shall not in any way encumber the Lessor's fee simple interest in the Property. If any lien shall at
any time be filed against the Property, the Lessee shall promptly take and diligently pursue a cntise of
action to have the same discharged or to contest in good faith the amount or validity thereof and if
unsuccessflrl in such caatest, to have the same discharged, Upon the Lessee's failure to do so, within thirty
(30) days following Lessee's receipt of notice thereof from Lessor, the Lessor, in addition to any other right
or remedy that it may have, may take such action as may be reasonably necessary to protect. its interest, and
the Lessee shall be responsible for any and all reasonable costs incurred. by the Lessor in connection with
such action, including all reasonable legal fees, costs and expenses.
Section 6.6 Lessor Approval,
All Plans furnished under this Lease are expressly subject le 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 withheld or delay and which approval shall be subject to the criteria for
approval set forth in Section 6. I, above.
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No approval by the City Manager army Plans furnished. under this Lease pursuant to this Section
shall relieve Lessee of any obligation it may have at law to file such Plans with any department of the City
or any other governmental authority having jurisdiction over the issues; or to obtain any building or other
permit or approval required by law. Lessee acknowledges that any approval given by the City Manager
pursuant to this Section shall not constitute an opinion or agreement by the City that the Plans are
structurally sufficient or in compliance with any laws, codes or other applicable regulations.
ARTICLE VII
CONDUCT OF BUSINESS BY LESSEE
Section 7.1 Use of Property.
The Lessee shall occupy the Property and commence operations on the Possession Date, subject to
the operational limitations that will result firoin the contemplated construction of the Leasehold
Improvements. After the referendum with respect to this Lease concerning the Property is approved, then,
within fifteen (15) days following the date as of which the Licensee vacates that portion of the Property
occupied by Licensee; or abandons its operations, Lessee may take possession of and occupy such portion
of the Property.
Following the Possession Date, Lessee shall occupy the Property as soon as reasonably possible,
and covenants to continuously conduct its permitted business therein throughout the Lease Term, subject to
the operational limitations that will result from the contemplated construction of the Leasehold
Improvements, periodic tenant vacancies, periodic repair and refurbishment to the- Leasehold
improvements, periods of time required for insurance adjustments and reconstruction following casualty or
partial taking, and Force Majeure, Lessee shall use the Property solely for the Permitted Uses. Lessee shall
not use, permit or suffer the use of the Property for any•other business or purpose, Lessee agrees to
conduct its business upon the Property in accordance with the highest ethical and operating standards of the
tsarina and restaurant industry of which Lessee forms a part,
Section 7.2 Operation of Lessee's Business.
At all times during the Lease Term, Lessee shall 'manage the marina and restaurant operations at
the Property with due diligence and efficiency, in Lessee's sole and absolute discretion, and in a manner
prudent and in accord with the current business techniques within the locale for Lessee's business so as to
maximize the amount of Applicable Gross Revenues, subject to Force Majeure. Lessee shall Cary (and
shall use commercially reasonable efforts to cause each Applicable Sub -lessee to carry) at all tunes in the
Property a stock of merchandise of such quantity, character and quality as shall be in accord with good and,
reputable business practices within the Coconut Grove business district which is the locale for Lessee's
business.
Section 7„3 Suns,
In addition t.o the signage set forth in the Proposal, which is hereby deemed- approved subject to
obtaining any applicable permits, Lessee shall institute and enforce a uniform signage regime throughout
the Property, which will apply to all directional sidewalk and street signage, and all exterior storefront and
canopy signage for the Parking Facilities Retail Area and the Permitted Retail Area (the "Property
Directional and Retail Signage Regime"), which Lessee may revise from time to time. The Property
Directional and Retail Signage Regime and periodic revisions to same shall be subject to Lessor's written
approval and consent (which the City Manager is authorized to give), which may not be unreasonably
withheld, delayed or conditioned, All other signage on the Property (including, without limitation,
restaurant signage and marina signage) shall be subject .only to the requirements of applicable signage
codes. Lessee shall erect an exterior monument or pylon sign for the Property, of type, composition and
design in conformance with the Miami 21 Zoning Code, Lessee further agrees that it shall maintain (or.
shall use commercially reasonable efforts to cause any Sub -lessee to maintain) any exterior sign, awning,
canopy, decoration, lettering, advertising matter or other thing in good condition and repair at all tithes,
and, to the extent applicable, in accordance with Retail the Property Directional and Retail Signage
Regime..
ARTICLE VIII.
MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY
Section. 8.1 Lessee's Maintenance Obligations.
Lessee,. at its sole cost and expense, agrees to provide the necessary management and labor, to
continuously maintain the Property, including all operating equipment, utility services, and connections on
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the Property. Lessee, at its sole cost and expense, agrees to provide, janitorial and custodian services, trash
and garbage removal services, and any and all other related. services necessary to have the Property,. and the
Leasehold Improvements .remain in good, safe, sanitary condition and. repair throughout the Lease Term.
Lessee shall be responsible for periodic repainting of all exterior surfaces of the Leasehold IYnprovcments
on the Property, maintaining all landscaping on the Property, and. maintaining its equipment, fixtures,
furnishings, and other personal property in good condition and repair. All maintenance shall be at the
Lessee's sole cost and expense and will be subject to general inspection by the Lessor to insure a
continuing quality of maintenance and appearance and physical condition of the Property commensurate
with maintenance, health, and safety standards established by Applicable Law.
. Section 8,2 Lessee's Repair Obligation.
Lessee, at Lessee's sole .cost and expense, at all times during the Lease Term, shall make all
interior, exterior, structural -repairs, including repairs to the roof, wires, pipes, conduits and other equipment
or facilities for supplying heat, light, power, .hot and cold water services, all drainage and waste pipes or
:tboilities leading from the Property, and to all heating, ventilating and air-conditioning equipment and any
other repair or replacement to the Property and to. the Leasehold Improvements,
Section 8.3 PreventativeMaintenanee and Services.
Lessee shall, at its sole cost and. expense, provide the following preventive maintenance and
services:
a. Daily cleaning and. janitorial services for the exterior common areas of the Property;
b. Grounds services including lawn, shrub and tree maintenance and removal of any rubbish
or obstructions from 'the Property;
e. Exterior window cleaning to be performed as needed but no less than once every one
hundred and twenty days;
d. Vermin control as necessary, but no less than once every thirty (30) days;
e. Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or
grease inceptors, if applicable, but no less than once every ninety (90) days; and
Painting of exterior of building including caulking of all windows and door frames no
less than once every four (4) years.
In addition to the above, on the tenth and twentieth Lease Year of the Effective Date, and. once.
every five years thereafter, the Lessee, at its sole cost and expense, shall have a qualified engineer perform
a physical inspection of the Property including, but not limited to all structural components, plumbing, life
safety, electrical, heating and air conditioning systems and mechanical equipment as well as any and all
structural trade tixture's on the Property, as part of a preventive maintenance program, The Lessee shall
submit the engineer's report along with a proposed. plan for the funding and implementation of the
recommendations contained -in the engineer's report to the Lessor by the end of the Lease Year in which
such report is due for th a Lessor's review.
If the Lessee refuses, neglects or fails to provide the services required herein or•does not provide
adequate services within thirty (30) days _after written. demand from the Lessor, the Lessor may take
corrective measures or cause the Property to be. cleaned or repaired without waiving its right based upon
any default of the Lessee and without releasing the Lessee from any obligations hereunder. The Lessee
shall pay the Lessor the full reasonable cost of such work within thirty (30) days of receipt of an invoice
indicated the cost of such corrective measures or cleanup. Failure to pay sueh,.invoioe shall constitute a
default of this Lease. Notwithstanding the above,. -the Lessee's failure to perform the corrective measures
or clean-up to the Property as directed shall constitute a default of this Lease, subject to the applicable Cure
Periods.
Nothing herein shall imply that maintenance, repair, and inspections should be performed by the
Lessee only at the suggested intervals. The Lessee shall, at all times, be responsible for the condition of the
Property and shall perform repairs required. in a timely manner so as to prevent injury to persons and waste
to Property. .
Section 8.4 Chanties/Alterations:
Except as oonsistent with the plans and specifications set forth in the Proposal, which are hereby
deemed approved subject to obtaining applicable permits, Lessee shall not remove any buildings
constituting a portion of the Leasehold Improvements or construct any additional buildings in and. to the
Property or any part .thereof, without the prior written consent of the Lessor, which consent shall be at the
sole discretion of the City Commission, Lessor's consent or approval shall not be. required with respect to
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any other alterations to the Leasehold Improvements so long as such alterations are generally consistent
with the Proposal or necessary to comply with Applicable Law, and, without limiting the foregoing, Lessee
shall not be required to obtain the consent of Lessor in connection with the repair or periodic maintenance
or refiirbishment of any Leasehold Improvements or the reconstruction of any Leasehold Improvements
following any casualty or taking,. or in connection with the installation of any trade fixtures, furnishings or
equipment, exterior signs (so long as same conform to the: Property Directional and Retail Signage
Regime), exterior machinery, floor covering, interior or exterior lighting, plumbing fixtures; shades,
awnings, interior build -out, including, without limitation, tenant improvements to the Parking Facilities
Retail Area or the Other Permitted Retail Area
No approval. -by the City Commission of' any changes or alterations shall relieve Lessee of any
obligation it may have at law to file the required documents with any department of the City or any other
governmental authority having jurisdiction. over the issues; or to obtain any building. or other permit or
approval required by law, Lessee acknowledges that any approval given by the City Commission pursuant
to this Section shall not constitute an opinion or agreement by the City that the.changes or alterations are in
compliance with any laws, codes or other npplioable regulations.
8.5 Capital Infrastructure Account. Lessee agrees to contribute l % of gross revenues to a
Capital Infrastructure Escrow Account to fund on -going capital infrastructures costs, In regards to sub-
lessees, Gross Revenues will apply to rents received by Lessee, Lessee shall send notification of the
escrow fund balance to Lessor on an annual basis, The Parties shall enter into .an escrow agreement to
govern the use of these funds.
ARTICLE IX
INSURANCE AND INDEMNITY
Section 9.1 Insurance on the Property.
(a) In connection herewith, Lessee shall obtain and maintain or cause to he obtained and
maintained in full force and effect throughout the period of this Lease, with respect to its operations on the
Property the types and amounts of insurance coverage set fbrth in items 1 through VII of Exhibit "J"
attached hereto and incorporated herein by reference; and with respect to all Leasehold. hnprovements
(expressly excluding the Parking Facilities Retail Area) the types and atnounts of insurance coverage set
forth in item. V.III of .Exhibit "J". If required by state, county, or city laws front time to time for work
conducted on or use of ntunioipal properties, Lessee shall obtain and maintain or cause to be obtained and
maintained throughout or during the term of this Lease, as applicable, such types and amounts ofpayment,
performance, maintenance, or restoration bond(s) as shall he required to be reviewed and approved by the
City's Risk Management Department in coordination with. Lessee's Risk Management or other appropriate
Department, which .approval shall not be unreasonably withheld, delayed or conditioned,
•The Lessor reserves the right to reasonably amend the herein insurance requirements by the
issuance of a notice in writing to the Lessee, which. amended. insurance requirements shall be consistent
with commercially reasonable requirements .then applicable to comparable leasehold interests and subject
to the reasonable approval by Lessee;. which approval shall not he unreasonably withheld.
(h) Lessor shall obtain and maintain (or shall cause the MPA to obtain and maintain) in full
force and effect throughout the Lease Term, with respect to the Parking Facilitiess (including, without
limitation,. the Gray Shell Improvements),. the types and amounts of insurance coverage set forth in items I,
III, IV, VI and VIII of Exhibit "J",.as the criteria therein may he revised from time to time as provided
in the immediately preceding subparagraph a. Lessor's insurance requirements may be met through a self-
insurance program,
Section 9.2 Delivery of Insurance Policies,
All. public liability, workers compensation and employer's liability policies shall be retained by
the Lessee. The policies of insurance required to be furnished pursuant to item VIII of Exhibit "J" shall
be held by and be payable, and the proceeds thereof shnll be distributed. in accordance with the terms of this
Lease. Insurance company certificates evidencing the existence of all of these policies of insurance shall be
delivered to the Lessor. All policies of insurance required to be provided and obtained. by Lessee shall
provide that they shall not be amended or canceled on less than thirty (30): days prior written notice to the
Lessor, The Policies required to be maintained. by Lessor and. Lessee pursuant to item VIII of Exhibit "J"
shall contain waivers of subrogation rights endorsements, as required below. The Lessor shall have no
obligation to pay premiums or make contributions to the insuring company or any other person or satisfy
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any deductible with respect to any policy required to be maintained by Lessee. On or before the Effective
Date and not less than thirty (30) days prior to the expiration date of any policy required to be earned
pursuant to this Section, the Lessee shall deliver to the Lessor insurance company certificates evidencing
all policies of insurance and renewals required to be furnished, and, upon written request by Lessor, Lessee
shall furnish to Lessor copies of the applicable respective policies, Receipt of any documentation of
insurance by the Lessor or by any of its representatives which indicates less coverage than required does
not constitute a waiver of the Lessee's obligation to fulfill the insurance requirements 'herein.
Section 9.3 Adlustment: of Loss,
Any Net Insurance Proceeds recovered on account of any damage or destruction by any casualty
shall be made available for the payment of the cost of the reconstruction, replacement or repairs. All of the
Net Insurance Proceeds plus the amount orally deductible applicable to said damage or destruction (the
"Reconstruction Escrow Pund") shall be deposited by .the insurance company or by the Lessee (in the case
of the deductible) with an escrow agent acceptable to the City Manager (subject to approval by City
Attorney) and Lessee, pursuant to an, escrow agreement which shall be reasonably satisfactory to the City
Manager and Lessee, with commercially customary provisions for such escrows, including, without
limitation, 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 Lessee's architect. or. engineer supervising the work that the disbursements then requested,
plus all previous disbursements made from such Reconstruction Escrow Fund, do not exceed thecost. of the
work already completed and pail for, and that the balance in the Reconstruction Escrow Fund is sufficient
to pay for the reasonably estimated cost of completing the required work. If the amount of the Net
Insurance Proceeds is less than the cost. of the required work, then Lessee shall pay the excess cost; and if
the amount of the -Net Insurance Proceeds is greater than the cost of the required work, then the excess
shall he paid to and belong to the Lessee.
Section 9.4 Insurer to Be Approved -Premium Receipts,
Ali policies of insurance of the character described in Exhibit "J" shall be written by companies
of recognized responsibility reasonably acceptable to the Lessor, On request by Lessor, Lessee Shall
provide photocopies of receipts showing the payment of premium for all insurance policies required to be
maintained by this Lease.
Section 9,5 Indemnification of Lessor'.,
Lessee shall indemnify, defend and save Lessor harmless from and against any and all claims,
actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to or
destruction of property arising from or out of any occurrence in, upon or at the Property, or the occupancy
or use by Lessee of the Property, or any part thereof, or occasioned wholly or in part by any act of omission
of Lessee, its agents, contractors, employees,. servants, customers, invitees, Lessees, Sub -lessees or.
concessionaires. In case Lessor shall be_ made' a party to any litigation commenced by or against Lessee
covered by this indemnity provision, then Lessee shall protect and hold Lessor harmless and pay all costs
and attorney's fees incurred by Lessor in connection with such litigation, and any appeals thereof; Lessee
shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by Lessor in
enforcing the covenants and agreements in this Lease,
Section 9.6 Waiver of Subrogation,
Lessor and Lessee each hereby waives any and all right of recovery Lessor or Lessee, as the case
may be may otherwise have against the other party hereto and such other party's respective servants, agents,
contractors, customers and employees, for loss or damage to the Property or the Parking Facilities, as the
case may be, to the extent such loss or damage is covered by the All -Risk policies maintained or required to
be maintained, respectively by Lessor (or the MPA) or Lessee, as the ease may be, pursuant to the terns
hereof, notwithstanding that such. loss or damage may result from the negligence or fault of the other party
hereto, or its servants, agents, contractors, customers or employees. Lessor and 'Lessee each hereby waives
all rights to recover against the other party for any damages arising from any cause covered by any
insurance required to be carried by Lessor or Lessee, , as the case may be, or any insurance actually carried
by Lessor or Lessee, as a case -may be. Lessee shall cause and Lessor shall cause (or shall cause the MPA
to cause) its respective insurer(s) to issue appropriate waivers of subrogation rights endorsements to all
policies of All -Risk insurance policies carried in connection with the Property in the Parking Facilities and
all commercial general liability policies maintained by Lessee and Lessor (and where applicable, the MPA)
shall include contractual liability coverage with respect to the contractual obligations_ of Lessee and Lessor
(and, where applioable, the MPA) hereunder,
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Section 9.7 Release ofLessor.
Except as expressly .provided below, the Lessee for -and in consideration of the leasing and the
demise of the Property .to the Lessee hereby release, remise and discharge the Lessor, its officers and
employees, of and from all claims, demands, actions, whether in law or in equity which may be tiled or
asserted by the Lessee or its Assignees for or on account of improvements made and furniture, fixtures and
equipment installed in the Property, and from any and all costs and expenses, of Lessee or its Assignees in
connection with this Lease, including, but. not limited to the development of the Property and acquisition of
the Leasehold Improvements, which may result from a third party challenging. the validity or legality of this
transaction under the City Charter or Code or the laws of the State of' Florida, or arising out of the award of
this Lease, or any subsequent Assignment of this Lease by the Lessee or its Assignees ("Claim"), It is the
intent of the Parties that, except as expressly provided below, this provision shall control over any other
provision in this Lease and that notwithstanding any limited representations provided by Lessor under
Section 2.5 of' this Lease, except as expressly provided. below, neither the Lessee, nor its Assignees shall
seek to recover from the Lessor compensation for, or reimbursement of any costs, losses, fees or expenses
incurred by the Lessee or its Assignees, including expenses incurred in connection with the acquisition of
this Lease or the financing, and/or installation of the Leasehold. Improvements, or otherwise, as n result of
any adverse judgment which may be entered or relief granted in connection with the Claim. The terns of
this provision shall expressly be made a part of any future assignment or mortgage of the Leasehold
Interest.
ARTICLE X
SERVICES AND U'T'ILITIES
Section 10.1 . 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 Property and the
Leasehold Improvements, or any part of it, at any time during the Lease Term; and the Lessee shall comply
with all contracts relating to any such services and will do all other thingsrequired for. the maintenance and
continuance of all services as are necessary for the proper maintenance and operation of the Property and
the Leasehold Improvements. The Lessee shall also at its sole expense procure any and all necessary
permits', licenses or other authorization required for the lawful and proper installation and maintenance
upon the Property of' wires, pipes, conduits, tubes and other equipment and appliances for use in supplying
any such utilities, services or substitutes to the Property.
Section 10.2 Lessor Not Liable for Failure of Utilities.
The Lessor shall not be liable for any failure of water supply, sewer, gas or electric current, or for
any injury or damage to any person or the Property caused by or resulting from water, gas or electricity
which may leak or flow from -the water or gas mains on to any part of the Property or the Leasehold
Improvements. The Lessor shall not be required to make any alteration to any service or -utility system of
the Property on behalf of Lessee; provided, however, following notice 'in writing from Lessee to Lessor of
the interruption of any electric, water or sewer service to the Parking Facilities Retail Area, Lessor shall
immediately commence, and diligently pursue, all commercially reasonable measures required in order to
restore such service, Lessor shall not be liable for temporary failure of services, and saute shall -not be
deemed to constitute actual or constructive eviction, nor entitle Lessee to any abatement or diminution in
rent payable under this Lease.
ARTICLE XI
TRANSFERS, SUBLETTING AND LEASEHOLD FINANCING.
Section 11.1
Lessee,slttill have the authority to enter into Sub -leases or assignments for portions of the
Property, without the consent of Lessor, so long as such Sub -leases or assignments conform to the
Permitted Uses. Any Sub -leases or assignments not conforming to such uses shall be void and of no force
or:effect and shall not confer any interest or estate in the purported Sub -lessee or assignee, and if Lessee
shall fail to terminate any such .Sublease or assignment not conforming to- the Permitted Uses, within sixty
(60) days following demand therefor from Lessor, such failure shall constitute a default under this Lease
and the Lessor, at its election, may terminate this Lease,
It is agreed that all applicable terms and conditions of this Lease shall extend to and be binding
on all Sub -lessees and shall be for a period of time equal to or less than the Lease Term. Lessee shall he
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liable for acts and. omissions by any Sub -lessee to the extent any such acts or omissions constitute a breach
of the terms of this Lease. Lessor reserves the right. to directly terminate the tights and interests of any
Sub -lessee under any Sub -lease for any cause for which Lessee's Leasehold. Interest may be terminated,
following the expiration of any applicable cure period, following applicable notice.
To the extent Lessor's eonsent is required with respect to any Sublease or assignment, Lessee shall
reimburse to Lessor, as Additional Rent, all reasonable costs and expenses, including reasonable attorneys'
fees, which Lessor incurs by reason of or in connection with its review and. consideration of any such
Sublease or assignment, and all negotiations and actions with respect thereto, such Additional Rent to be
due and payable within thirty (30) days of receipt ofa statement of such costs and expenses from Lessor,
(b) Procedure for Sub -lease or Assignment.
Should Lessee desire- to• enter into a Sublease or assign its interest in this Lease (in each case, to
the extent Lessor's consent thereto is required as provided above), Lessee shall, in each instance, give
written notice of its intention to do so to the City Manager at least f fteen (15) days, in the case of any such
Sublease, and thirty (30) in the case of any such assignment, prior to the effective date of any such.
proposed Sublease or assignment, specifying in such notice the nature of such proposed Sublease or
assignment and the proposed date thereof and specifically identifying the proposed Sub -lessee or Assignee. .
Such notice shall be accompanied by a copy of the proposed Sublease, license, concession or permit
agreement, or proposed assignment.
(c) Additional Consideration Payable to Lessor,
Except as provided below with respect to a valet concession and with respect to Subleases within
the Parking Facilities Retail Area and. the Other Permitted Retail. Areas (other than a Marine Retail Store),.
Lessee shall, in consideration therefore, include in Lessee's Gross Revenues the amount of Sub -lessee's
Gross Revenues which shall be listed separately on Lessee's monthly and annual reports of Gross.
Revenues. Sub -lessee's records shall be kept in accordance with Section 4,4. Additionally, Lessor reserves
the right to examine such Sub -lessee's books and audit Sub -lessee's. entire records in accordance with
Sections 4.6 and 4.7 of this Lease.
Lessee shall collect a fee from all valet concessionaires allowed on the Property ("Valet Fees").
Lessee shall inolude.in its ,calculation of Gross Revenue such Valet Fees as received by Lessee and
Percentage Rent for such Valet Fees shall he calculated. pursuant to Section 4,1.3(v) of this Lease,
The acceptance by Lessor of the payment of Rent following any Sub -lease prohibited by this -
Article shall not be deemed to be a consent by Lessor to atiy such Sub -lease nor shall the same be deemed
to be a waiver of any right or remedy of Lessor hereunder.
Section 11.2 Definitions,
As used in this Article the term:
(a) "Transfer" omens:
(i) any total or partial sale, Assignment or gifting of Lessee's Leasehold. Estate or
any contract. or agreement to do any of the same;
(ii) any transfer of the membership interests of Lessee if the transfer results in the
beneficial ownership of Grove Bay Investment Group, LLC ("GBIG") being Tess
than 51% of the Lessee; or
(iii) any merger or consolidation of Lessee with any other person, or the sale or lease
of all or substantially all of the assets of the Lessee or of any Owner, other than
an Owner whose shares are publicly traded,
(b) "Owner" means:
(i) any person, firm, corporation or other entity which owns, directly or indirectly,
legally or beneficially, more than fifteen percent (15%) of the stock or equity of the
Lessee, but shall not include any equityholder of an Owner whose shares are publicly
traded.
(c) "Owner whose shares are publicly traded" means an Owner:
(i) who has filed. an effective registration statement with the Securities & Exchange
Commission (or its successor) with respect. to•the shares of any class of its voting stock or
of all classes of any other form of ownership interest which. includes voting rights; and
(ii) whose voting stock and other form of ownership interest described in clause .(i)
is listed far 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.
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Section 11.3 Transfers.
• The Lessee recognizes that the operational experience of the Lessee as set forth in the Proposal
was given special consideration by the Lessor in the public selection process- undertaken by the Lessor for
the award of this Lease, Therefore, Lessee agrees that except as permitted pursuant to subparagraphs (a),
(b) and (c) below, or as specifically approved pursuant Section 11.7 below, no Transfer may be made,
suffered or created by the Lessee, or any Owner without the prior written consent of the City Manager
which consent shall not be unreasonably withheld or delayed, The City Manager, in his sole discretion,
may, but shall not be obligated to, present any request for Transfer to the City Commission for its final
approval. The following Transfers shall be permitted hereunder:
(a) Any Transfer directly resulting from the foreclosure of Lessee's Leasehold Estate,
provided that such purchaser or .grantee is an institutional investor or an agent, designee or nominee of an
institutional investor which is wholly owned or controlled by an institutional investor, and that such
purchaser or grantee within six •(6) months after taking possession of the Property, shall have entered into
an agreement for the management and operation of the Property with an acceptable operator•or is itself an
acceptable operator;
(b) any Transfer to an acceptable .operator consented to by the City Manager, whose consent
shall not be unreasonab,y withheld or delayed or conditioned;
(c) the issuance of stock/equity or stock/equity options to Lessee's directors, officers, or
employees, provided the stock/equity or stocldequity options issued constitute, in the aggregate, less' than
fifteen percent( of the issued and outstanding. stock/equity of Lessee;
The Parties hereby acknowledge and agree that anything herein to the contrary notwithstanding,
the "going public" by Lessee, including, but not limited. to, the filing of a registration statement with the
Securities and Exchange Commission, the creation of one or more classes of stock and the offering of
shares of stock to the public for purchase, shall not constitute a Transfer hereunder and shall not require the
consent of the Lessor, .
Any consent to a Transfer shall not waive any of the Lessor's rights to consent to a subsequent
Transfer, Any Transfer made in violation of the terms hereof shall be null and void and of no force and
effect.
Section 11.4 Notice or'Transfer.
With. respect to any Transfer which must be approved by the City Manager, the Lessee shall give
or cause to be given to the Lessor Written notice (including all information necessary for the Lessor to. make
an evaluation of the proposed acceptable operator according to the requirements of this Lease) of any
Transfer of which Lessee, or its officers shall have knowledge, not less than sixty (60) days prior 'to any
such proposed Transfer, and the Lessor shall within thirty •(30) days of its receipt of such information,
advise Lessee in writing if it shall consent to same. If the Lessor shall not consent to a Transfer, the City
Manager shall statethe reasons for such disapproval in his notice to Lessee. If the Lessor is not required to
consent to a Transfer .pursuant to the terms hereof, the Lessee shall notify the Lesser in writing of same
within thirty (30) days after the date of Transfer. In the event the City Manager elects to exerciselbis right
under Section 11.3 to present any request for Transfer to the City Commission for its approval, the City
Manager shall use due diligence to present the request for Transfer to the City Commission as soon as
practicable and the tin for performance by Lessor shall be reasonably extended to provide sufficient time
for presentation to the City Commission.
Section 11,5 Information as to Shareholders, etc,
Lessee shall from time to time throughout the Lease Term, as the Lessor shall reasonably request,
furnish the Lessor with a complete statement, subscribed. and sworn to by the President or Vice -President
and the Secretary or Assistant Secretary, or manager, as the case may be, of the Lessee, setting forth the hill
names and addresses of holders of membership interests in Lessee, and the extent of their holdings, and in
the event any other parties have a beneficial interest in such stock, their fill names and addresses and the
extent of such interest as determined or indicated by the records of Lessee. Notwithstanding the foregoing,
the information required. by this Section 11.5 shall not be required to he furnished with respect to the
shareholders of any owner whose shares are publicly traded,
Section 11,6 Effectuation of Permitted Transfers.
No Transfer of the nature described in Subsection 1 L3(b) above shall be effective unless and until:
(a) all Rents, taxes, assessments, Impositions., insurance, permitting and other charges
required to be paid by the Lessee under this Lease shall be paid by the Lessee up to the date of Transfer,
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and all other covenants and agreements to be kept and performed by the Lessee shall be substantially
complied with at the date of Transfer; and
(b) the entity to which such Transfer is made, by instrument. in writing reasonably
satisfactory to the City Manager and in a form recordable among the land records, shall, for itself and. its
successors and assigns, and especially for the benefit. of the Lessor expressly assume all of the obligations
of Lessee under this Lease, and agree to be subject to all conditions and restrictions to which Lessee is
subject; provided, however, that any Transferee shall not be .required. to assume any personal liability under
this Lease with respect to any matter arising prior or subsequent to the period. of such Transferee's actual
ownership of the Leasehold Estate created by this Lease (it being understood, nevertheless, that the absence
of any such liability for such matters shall not • impair, impede or prejudice any other right or remedy
available to the Lessor for default by Lessee), Nothing herein shall be construed to relive or release the
Lessee from liability for the performance of all of tine obligations of Lessee under this. Lease, unless the
Lessor in writing expressly provides for such. a release; provided, however, notwithstanding the foregoing,
the Lessee immediately prior to such Transfer shall. have no liability whatsoever with respeet to any matter
arising subsequent to the date of such Transfer.
Section 11.7 Criteria for Consent for Transfer.
The Lessor may condition its consent to a permitted Transfer upon satisfaction of all or any of the
following conditions;
(i) The net worth, determined in accordance with generally accepted accounting principles,
of the Transferee immediately prior to the Transfer shall not be less than the.net worth of said Transferor on
the Effective Date adjusted. for inflation,
(ii) Such Transfer shall not adversely affect the quality and type of business operation which
the Lessee has conducted theretofore;
(iii) Such Transferee, shall possess qualifications for the operation of Lessee's business as
reasonably required of an acceptable operatora comparable project, or shall engage an acceptable operator
having such qualifications and shall. have demonstrated recognized. experience in suceessfiilly operating
such a business, including, without limitation, experience in successfully operating a similar quality
business;
(iv). Such Transferee shall continue to operate the business conducted at the Property pursuant
to all the provisions of this Lease; .
(s) Such Transferee shall assume in writing, in a form acceptable to Lessor, all of Lessee's
obligations hereunder, and Lessee shall provide Lessor with a copy of all documents pertaining to such
Transfer; and
(vi) Lessee shall pay to the Lessor any due, but unpaid_ Rent.
Section 11.8 Liability of Lessee.
If a Transferee does not meet all of the criteria set forth in Section 11,7, Lessor, at its sole option,
by notice to Lessee prior to the consummation of such Transfer, may require Lessee transferring such
interest to remain liable under this Lease for the performance of all terms, including, but not limited ta,
payment. of Rent due under this Lease.
Section 11.9 Payment Upon Transfer or Sale of Lessee Business or Stock, •
Lessee recognizes and agrees that; (i) the experience of Lessee was given special consideration by
Lessor in the selection process which resulted in the award of this Lease; (ii) the qualifications and identity
of Lessee are of partic; liar concern to the conununity and Lessor; and (iii) it is partially because of such
qualifications and identity that Lessor is entering into this Lease. Accordingly, at all times prior•to the date
of Transfer: (A) the Lessee's Equity Contribution shall be maintained or have been satisfied prior to the
date of Transfer, and (B) GBICi shall retain voting and operational control of Lessee, Any waiver of the
foregoing requirement shall require the City Manager's prior written consent, which may be granted or
withheld in his or her sole and absolute discretion. Lessee or Transferee shall pay to Lessor a fee (the
"Transfer Fee"), in connection with any Transfer as follows; during the initial five (5) years of the Term,
the Transfer Fee for any sale or Transfer shall be 2% of the Gross Sale Amount; between Years 5 to 10 of
the Term the Transfer Fee shall be 1.5% of the Gross Sale Amount; between Years 10.— 20 of the Term the
Transfer Fee shall be 1.0% of the Gross Sale Amount; and after•Year 20 of the Term, the Transfer Fee shall
be 0,75% of the gross sale amount of such transaction, The Lessee shall pay to the Lessor the Transfer Fee
at the time the Transfer becomes effective, or in the case of the sale of the Lessee's stock at the time the
shares of stock are.sold,
Section 11,10 Acceptance of Rent from Transferee.
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The acceptance by Lessor of the payment of Rent following any Transfer prohibited by this
Article shall not be deemed to be a consent by Lessor to any such, nor shall the satne be deemed to be a
waiver of any right or remedy of Lessor hereunder,
Section 1:1,11 Transfers of the City'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 Property,
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 suoh purchaser, Assignee, mortgagee,. or. trustee.
Section 11.12 Mortgages and Mortgagees,
11.12.1 Leasehold Mortgage.
(a) Notwithstanding anything herein to the contrary regarding any Transfers, but subject
to the provisions of this Section 11.12, and. further provided. that Lessor has not notified Lessee in writing
that a Lessee Default has occurred that remains uncured, Lessee shall have the right during the Lease Term,
to encumber the Leasehold Estate by Leasehold: Mortgage, for the purpose of securing the financing for the
construction of the .Leasehold Improvements and/or for the long-term financing or refinancing of any such
Leasehold Improvements, subject to review and approval by the City Manager of the mortgage documents,
for the sole purpose of ensuring compliance thereof with .the conditions for mortgaging as set forth hi this
Section 11.12, provider, that such Leasehold Mortgage shall not encumber Lessor's fee simple title to the
Property, Lessee shall provide copies of all mortgage documents reqtiired for the City Manager's review.
Notwithstanding .anything to the contrary in this Section .or in this Lease, the Lessor and Lessee
expressly agree, and (by acceptance of the Leasehold Mortgage) any Leasehold Mortgagee, that the
Lessee's right to place a Leasehold Mortgage against the Lessee's Leasehold Estate is subject to the
following:
1 At the time the Leasehold Mortgages is made, Lessee has not been notified of any
Lessee Default uncle'. this Lease that retrains uncured,
2. No Leasehold Mortgagee .or anyone claiming by, through or under the Leasehold
Mortgagee, shall by virtue of such Leasehold Mortgage, aequire any greater rights in the Property than the
Lessee has under this Lease,
3. The Leasehold Mortgage shall be expressly subject and subordinate to all conditions
and covenants of this Lease and to the rights and obligations of Lessor, The Leasehold"Mortgagee of any
Leasehold Mortgage and the owner of any indebtedness secured by the Leasehold Mortgage, upon
acquiring Lessee's Leasehold Estate shall take the same subject to the covenants Of this Lease,
4. The Leasehold Mortgage shall expressly provide that the Leasehold. Mortgagee shall
notify Lessor of default by Lessee under the Leasehold Mortgage prior to coinmencing toreclosure
proceedings,
5. That any right or remedy available to any Leasehold Mortgagee as provided in this
Section 11.12 shall be deemed to apply in all respects to any affiliated designee or nominee of such
Leasehold Mortgagee.
6, That the Lessor and any mortgagee of Lessor shall execute and deliver to any
Leasehold Mortgagee a non -disturbance agreement in fot•tn and substance reasonably satisfactory to such
Leasehold Mortgagee and Lessor.
7, That except as expressly prohibited by the provisions of this Section 11.12, any
Leasehold Mortgage may be upon such terms and conditions as the Lessee and Leasehold Mortgagee may
agree.
In no event may the amount of such financing or .refinancing exceed the greater of: (a) eighty
percent (80%) of the fair market value of the Leasehold Estate and all the Leasehold Improvements
thereon, or (b) eighty percent (80%) of the Replacement Costs ("Replacement Costs" are defined as the
total costs for replacing the Leasehold Improvements located on the Property). Lessee shall deliver to
Lessor promptly after execution by Lessee a true and verified copy of any Leasehold Mortgage, and/or any
amendment, modification or extension thereof, together with the name and address of the owner and. holder
thereof. Lessee may not encumber the Leasehold Estate as security for any indebtedness of Lessee with
respect to any other real or personal property now or hereinafter owned by Lessee.
(b) During the continuanee of any Leasehold Mortgage until such time as the lien of
any Leasehold Mortgage has been satisfied:
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,l
(i) The Lessor shall not agree to any mutual termination nor accept any
surrender of' this Lease (except upon the expiration of the 'term), nor shall the Lessor consent to any
material amendment or modification of this Lease, or waive any rights or consents it may be entitled to
pursuant to the terns hereof, without the prior written consent of Leasehold Mortgagee, which consent
shall not be unreasonably delayed or withheld.
(ii). Notwithstanding any default by Lessee in the .performance or
observance of any covenant, condition or agreement of this Lease on the part of Lessee to beperfortned or
observed, the Lessor shall have no right to terminate this Lease even though a Lessee Default shall have
occurred and be continuing, unless and until the City Manager shall have given Leasehold Mortgagee
written notice of such Lessee Default and Leasehold Mortgagee shall have failed to remedy such default or
to acquire the Leasehold Estate created hereby or to .commence foreclosure .or other appropriate
proceedings in the nature thereof, all as set forth in, and within the time specified by, this Section 11,12.
(iii) Subject to the provisions of subparagraph (iv) immediately below,
Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this
Lease, to pay all of the Rent due hereunder, to provide any insurance, to pay any taxes and make any other
payments,. to make any repairs and improvements, to continue to construct and complete the Leasehold.
Improvements, and do any other act or thing required ofLessee hereunder, -and to do any act or thing which
may be necessary and proper to be done in the performance and observance of the covenants, conditions
and agreements hereof to prevent the termination of this Lease.. All payments so made and all things so
clone and:perf'ormed by Leasehold Mortgagee shall be as effective to prevent a termination of this Lease as
the same would have been if' made, done and performed. by Lessee instead of by Leasehold Mortgagee. Any
act orinaction by a L,ea.,ehold Mortgagee shall be at the reasonable discretion of the Leasehold Mortgagee.
(iv) Should any Lessee Default under this Lease occur, Leasehold
Mortgagee shall have sixty (60) days, or such additional time as is reasonably necessary to diligently cure
the Lessee .Default, after receipt of notice from the City Manager setting forth the nature of such Lessee
Default, to remedy sane and, if the Lessee Default is such that possession of the Property may be
reasonably necessary to remedy the Lessee Default, Leasehold Mortgagee shall, within such sixty (60) day
period, commence and diligently prosecute a foreclosure action or such other proceeding as may be
necessary to enable Leasehold Mortgagee to obtain, such possession; provided that (an) Leasehold
Mortgagee shall have fully cured any default in the payment of any monetary obligations of Lessee under
this Lease within suoh. sixty (60) day period and shall continue to pay currently such monetary obligations
as and when the same are due, (bb) Leasehold .Mortgagee shallwithin six (6) months of the date that it
takes possession of the Subject. Property employ an "Acceptable Operator" for the continued operation of
the Project, which shall mean such operator of the facility as designated by the Leasehold Mortgagee and
approved by the -City Manager, which approval shall not be unreasonably withheld or delayed so long as
such operator has the relevant experience and operating history comparable to the Lessee, and (cc)
Leasehold Mortgagee shall have acquired the Leasehold Estate created hereby. or commenced foreclosure
or other appropriate proceedings in the nature thereof within such sixty (60) day period or prior thereto,, and
shall be diligently and continuously prosecuting any. such proceedings to completion. All. rights of' the City
Manager to terminate this Lease as the result of the occurrence of any such Lessee Default shall be subject
to and conditioned upon the City Manager having first given Leasehold Mortgagee written notice of such
Lessee Default and Leasehold. Mortgagee having failed to remedy such default or acquire Lessee's
Leasehold Estate created hereby or ootninence foreclosure or other appropriate proceedings in the nature
thereof as set.forth in and within the time period specified by this subparagraph (iv).
(v) A Lessee Default under this Lease which in the nature thereof cannot
be remedied by Leaseh cld Mortgagee shall be deemed to be remedied if; (aa) within. sixty (60) days after
receiving. written notice from the City Manager setting forth the nature of such Lessee Default, Leasehold
Mortgagee shall have acquired Lessee's Leasehold Estate or commenced foreclosure or other appropriate
proceedings in the nature thereof; (bb) Leasehold Mortgagee shall diligently and continuously prosecute
any such proceedings to completion; (cc) Leasehold. Mortgagee, within such sixty (60) day period, shall
have fully cured any default that does not require possession of the Property, including a default in the
payment of any monetary .obligations of Lessee under this Lease and shall thereafter continue to faithfully
perform all such obligations that do not require possession of the Property; and (dd) within six (6) months
after Leasehold Mortgagee shall have gained possession of the Property, Leasehold Mortgagee shall have
employed an Acceptable Operator and shall continue to employ an Acceptable Operator throughout the
Lease Term.
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(vi) If the Leasehold Mortgagee. is prohibited by any process, or
injunction issued by any court, or by reason of any action by any court having jurisdiction of' any
bankruptcy, debtor rehabilitation or insolvency proceedings involving Lessee from commencing, or
prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in
subparagraphs (iv) and (v)'above for commencing or prosecuting such foreclosure or other proceeding shall
• be -extended for the period of such prohibition; provided. that Leasehold Mortgagee shall have frilly cured
any default including 4i default in the payment of any monetary obligations of Lessee 'under this Lease, and
shall eontintie to- perform currently such obligations as and when the same fall due, and provided that
Leasehold. Mortgagee shall diligently attempt ta remove any such prohibition.
(vii) The City Manager shall mail to Leasehold Mortgagee a duplicate
copy by certified mail of any and all notices which the Lessor may from time to time give to or serve upon
Lessee pursuant to the provisions of this Lease; no notice by the City Manager to Lessee hereunder shall be
deemed to have been given unless and until a copy thereof has been mailed to the Leasehold Mortgagee,
(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder,
whether by. judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or
any conveyance of the Leasehold Estate to Leasehold Mortgagee by virtue or in lieu of the foreclosure or
other appropriate proceedings in the nature thereof, shall not require the Lessor's consent or constitute a
breach of any provision of, or a default under this Lease, Upon such foreclosure, sale or conveyance, the
Lessor shall recognize Leasehold Mortgagee, or any other foreclosure sale purchaser, as tenant hereunder;
provided, that Leasehold Mortgagee or any such foreclosure sale purchaser shall qualify as or shall employ
an Acceptable Operator within six (6) months of the date of such foreclosure, sale or conveyance, and shall
continue to qualify as or employ an Acceptable Operator throughout the Lease Term, .Further, -provided,
that in the event there are two or more Leasehold Mortgagees or foreclosure sale purchasers (whether the
same or different Leasehold Mortgagees), the Lessor shall have. no duty or obligation whatsoever to
determine the relative, priorities of such Leasehold Mortgages or the rights.of the different holders thereof
and/or foreclosure -sale purchasers.
(ix) Subject to the restrictions and limitations imposed on the Lessor by
the Charter of the City of Miami and the provisions of Section 11.1.2, Lessor and Lessee shall cooperate in
including in this Lease by suitable amendment from time to time any provision which may be requested by
any proposed Leasehold Mortgagee, or may otherwise be reasonably necessary, to implement the
provisions of this Section 11,12; provided, however, that any such amendment shall not in any way affect
the Lease Term,
(x) Notwithstanding that this Lease otherwise contemplates that Net.
Insurance Proceeds or idet Condemnation Proceeds shall be deposited with an. escrow agent and disbursed
pursuant to the terms• of the escrow agreement -with such escrow agent, whenever the Leasehold, Estateshall
be encumbered by a Leasehold Mortgage during the Lease Term, all such Net Insurance Proceeds or Net
Condemnation Proceeds shall be deposited with and disbursed by such Leasehold Mortgagee pursuant to its
customary and commercially reasonable Procedures.
11.112. No Waiverof'Lessee's Obligations or Lessor's Rights,
Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve
Lessee from the full and faithful- observance and performance of its covenants, conditions and agreements
contained herein, or from any liability for the non -observance or non-pertbrmance thereof; or to require or
provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of
the City in or to the Project, the •Property or this Lease. Nothing in this Lease shall be deemed an agreement
on the part of the Lessor to. subordinate its fee simple interest in the Property to the lien of any Leasehold
Mortgage placed on the Leasehold Estate.
ARTICLE XII
COMPLIANCE WITH LAWS
Section 12.1 Compliance with Laws,
Lessee shall, at Lessee's sole cost and: expense, comply with all regulations of all Applicable Laws
now in force, or which may hereafter be in force, pertaining to Lessee or its. use of the Property, and shall
faithfully observe in the use of the Property or .in the•performance of'any alterations (including, without
limitation, Lessee's work) all Applicable Laws now in force, or which may hereafter be in force. Lessee
shall indemnify (and such indemnity will survive the termination or expiration of the Lease for a period. of
five (S) years), defend and save Lessor harmless from. penalties, fines, costs, expenses, suits, claims, or
damages resulting frotit'Lessee's failure to per•fonn its obligations in this Lease.
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ARTICLE XIII
ENVIRONMENTAL LIABILITY
Section 13.1 •Dofinition of Terns. For purposes of this Article XIII the following terms shall
have the meaning attributed to them herein:
13,1,1 "Hazardous Materials" means any toxic or hazardous substance, material, or waste,
and any other contaminant, pollutant or constituent thereof, whether liquid, solid, semi -solid, sludge ancVor
gaseous, including without limitation, chemicals, compounds, pesticides, petroleum products including
crude oil and any fraction thereof, asbestos containing. materials or other similar substances or materials
which are regulated or controlled. by, under or pursuant to any federal, state or local statutes, laws,
ordinances, codes, rules, regulations, orders or decrees including, but not limited to, all Applicable Laws,
13,1,2 "Environmental Laws" shalt include, but shall not he limited to, the Comprehensive
Environmental Response, Compensation. and Liability Act of 1980, as amended by the Superfund
Amendment and Reauthorization Act of 1986 f"Sara"), 42 U.S.C. §9601, et seq. (hereinafter collectively
"CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976 ("RCRA") and subsequent I-Iazardous and Solid Waste Amendments of 1984, also known as the
1984 "RCRA" amendments, 42 U,S.C, §9601, et seq.; the Hazardous Material. Transportation Act, 49
U,S,C, § 1801, et seq.; the Clean Water Act, as amended, 33 U.S.C. § 1311, et seq.; the Clean Air Act, as
amended, 15 U.S.C, §2601 et seq.; the Federal Insecticide, Fungicide, and Rodentioide Act (" FIFRA"), as
amended, 7 U.S.C, §136-136y; the Emergency Planning and Community Right -to -Know Act of 1986
("EPCRTKA.". or EPCRA"), as amended, 42 U.S.C.. § 11001, et seq. (Title III of Sara); the Occupational
Safety and .Health Act of' 1970 ("OSHA"), as amended, 29 U,S,C. §651, et seq,; any similar state statute,
including without limitation. Chapters 252,255,376,403,442, Florida Statutes, as amended; and the
regulations promulgated thereunder, and any other local laws regulations, including, but not limited to
Chapter 24, Environmental Protection, of the Code of Miami-Dade.Counry, Florida, as all of the foregoing
may be amended, modified, supplemented, superseded or replaced. at any time during the Term, that govern
or relate to:
(i) The existence, cleanup and/or remedy of contamination of the Property by Hazardous
Materials;
(ii) The protection of the environment from spilled, deposited or otherwise emplaced
contamination by Hazardous Materials;
(iii) The control of Hazardous Materials; or
(iv) The use, generation, discharge, transportation, treatment, removal or recovery of
Hazardous Materials,
13.1.3 "Cost)" 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 by Hazardous Materials on
the Property.
13.1.4"Clean Up" shall mean any remediation and/or disposal of Hazardous Materials at or from
the Property, which is ordered by any federal, state, or local environmental regulatory agency.
13-.1,5"Underground Storage Tanks" shall mean any fuel oil, petroleum: or gas underground
storage tanks which may be located on the Property ("USTs"),
Section 13,2 Lessee's Environmental Covenants.
The Lessee shall not cause or permit any Hazardous Materials to be brought upon, treated,
stored, disposed of, discharged, released, produced, manufactured, generated, refined, or used upon, about
or beneath the Property or any portion thereof by the Lessee, its agents, employees, contractors, Lessees, or
invitees except as may be customarily used and required to conduct marina and restaurant operations and in
connection with any other Permitted Uses.
Lessee shall not permit any activities on the Property that would violate Environmental Laws,
If Lessee should breach this covenant, Lessee shall take all actions necessary to comply with all
Environmental Laws and. shall, at Lessee's sole cost and expense, perform any Clean Up. Lessee's
obligation under this Section shall survive the expiration or earlier termination of.this Lease for a period of
one (1) year.
13.2.1 Environmental Testing Obligations
Lessee shall conduct a Phase Two Environmental Assessment and soil analysis of the Property
before and. alter the Lease Tenn (or Renewal Term) to determine if it has left any Hazardous Materials
31
contaminants on the Property. If contamination by I-Iazardous Materials is found to be left on the Property,
to the extent such contamination originated upon the Property arising from or caused by the presence, in or
about the Property, of any Hazardous Materials placed on or about the Property by Lessee, or -its agents,
employees or Assignees, or at Lessee's direction, or by .Lessee's failure to comply with .all applicable
Environmental Laws (and not as a consequence, for example, of migration of contamination from nearby
properties). during the Lease Tenn, Lessee shall, at its sole cost and expense, pay to clean up the
contamination of such Hazardous Materials, subject to the limitations within Section 13.4 herein
Additionally, upon Lessor's request (but not more frequently than once during any five year period during
the Lease Term, 'unless the City has a reasonable basis to believe that Contamination by Hazardous
Materials in violation. of applicable Environmental Laws, then exists), Lessee shall conduct' such soil
analysis tests the city may require from time to time during the Lease- Term. and Renewal Term, if any;
Lessee shall be responsible fbr the cost of any such tests '
Section 13,3Representation by Lessor.
The Lessor represents and warrants that no lawsuits, claims, legal or administrative, have been
brought against Lessor, in connection with the environmental condition of the Property or the USTs as a
result of the Lessor's or any prior Lessee's use or occupancy 'of the Property, nor is Lessor aware of the
existence of any Hazardous Materials thereon, except as may be present in connection with the USTs
and/or the asbestos containing materials as expressly provided for herein.
Section 13,4 Lessee's Indemnification.
Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and against any
and all suits, actions, claims, regulatory actions, liabilities, penalties, losses, injuries,' and expenses,
including attorney's fees, resulting from the death or injury to any person, destruction or damage to
property, arising from or caused by the presence, in or about the Property, of any Hazardous Materials
placed on or about the Property by Lessee, or its agents, employees or Assignees, or at Lessee's direction,
or by Lessee's failure to comply with all applicable Environmental Laws.
Section 13,5 Asbestos.
The Lessee acknowledges that prior to the Effective Date, the Lessee has undertaken an
environmental site assessment of the Property and accordingly, the .Lessee knows that there may be
asbestos containing materials. ("ACM.") in the form of ceiling tiles, plaster walls and roofing material, The
Lessee shall, at Lessee's sole cost and expense, Clean Up. any such ACM in the event that as a result of
building renovations or modifications such ACM becomes friable,
Section 13,6 Survival ofLessee's and Lessor's Obligations.
The respective rights and obligations of Lessor and Lessee under this Article XIII shall survive
the expiration or termination of this Lease fora period of one (I) year.. •
Section 13.7 Cost of Environmental Remediation.
The Parties hereto shall be responsible for the cost of any environmental remediation or
mitigation within the Property and the Submerged Lands on the following basis: (i) Lessee's initial liability
to satisfy environmental permitting- requirements, including any environmental reinediation or mitigation
required as a condition to such permit, or to Clean Up any pre-existing contamination by Iazardous
Materials in accordance with .Applicable Law, provided herein shall be One Million Dollars.(01,000,000),
and (ii) In the event the cost of remediation exceeds $1;000,000, the amount which .exceeds $ 1,000,000 will
be split on a 50/50 basis between the Lessor and the Lessee (provided that Lessor may elect to offset the
50% share of the Lessor therefore against Rent thereafter coming due hereunder). One hundred percent
(100%) of the remediation costs paid by Lessee's remediation will be counted towards the Equity
Contribution and the Minimum Level of Investment, The Lessee shall be required to submit reasonably
acceptable documentation to the Lessor in order to facilitate the Lessor's verification of Lessee's
expenditures for any such remediation costs,
ARTICLE XIV
• DAMAGE OR DESTRUCTION OF PROPERTY
Section 14,1 Definitions. For the purposes of this Article XIV, the following words shall have
the meanings attributed. to them in this Section 14.1:
(a) "Completely Destroyed" means the destruction of the safe, leasable use or occupancy of a
substantial portion of the Property (excluding the Parking Facilities Retail Area), as
determined by Lessee in its sole discretion, under this Lease which damage cannot
32
reasonably be repaired, restored or replaced within one hundred and eighty (180)
calendar days from the date on which the damage occurred.
(b) "Partial Destruction" means any damage to the Property (excluding the Parking Facilities
Retail Area) which damage can reasonably be repaired, restored or replaced within one
hundred eighty (180) calendar days from the date on which the damage occurred.
Section 14.2 Lessee's Duty to Repair, Restore or Replace the Property After Damage.
In the event of damage by fire or otherwise oldie Property (excluding the Parking Facilities Retail
Area) including any machinery, fixtures or equipment which is a part of the Property, the Parties agree as
follows:
(i) In the event of Partial Destruction, Within sixty (60) calendar days of the damage
(subject to reasonable delay and/or Force Majeure), the Lessee shall use the Net Insurance
Proceeds available for that purpose, together with Lessee's own fluids (if the Net Insurance
Proceeds are insufficient) to commence- and diligently pursue to .completion within one hundred
eighty (180) calendar days from the date the damage occurred (subject to reasonable extension
and/or Force Majeure), the repair, restoration or replacement of the damaged or destroyed portion
of the Property ("Restoration Work"), and this Lease shall remain in full force and effect, with no
'abatement in Rent,
(ii) In the event the Property (excluding the Parking Facilities Retail Area) is
Completely Destroyed at any time during the Lease Term, inclusive of any Renewal Term, the
Lessee, in its sole discretion, shall have the option (a) at the Lessee's sole cost and expense
(together with Net Insurance. Proceeds available for that purpose), to. commence and diligently
pursue to completion the Restoration Work, in accordance with the provisions of Section 143
below, and Lessee shall complete the Restoration Work within twelve (12) months from: the date
the damage occurred (subject to reasonable delay and/or Force Majeure) and this Lease shall
remain in full force and effect, with no abatement in Rent, or (b) to elect not to undertake the
Restoration. Work by providing written notice to Lessor and in which event this Lease shall
terminate, and the Lessee shall, at the Lessee's sole cost and expense, (hut .using along with the
Lessee's own funds, Net Insurance Proceeds available for that purpose) deliver possession of the
Property to Lessor free and clear of all debris and Lessor and Lessee -shall each be released
thereby from any dither obligations hereunder accruing atter the effective date of such
termination,. except that such release shall not apply (aa) to any Rent or AdditionalRent or other
stuns accrued or due (bb) Lessee's obligations regarding surrender of the Property including the
removal of debris, and (co) environmental liability as provided for in Article XIII.
(iii) In the event the Property (excluding the Parking Facilities Retail Aren) is Completely
Destroyed at any time during the fast Lease Year of the Lease Term (inclusive of any Renewal
Term), and Lessee has not timely exercised any applicable option to extend the Lease Tern for the
next succeeding Renewal Term, if any, then either Party, in its sole discretion, shall have the right
to terminate this Lease by giving written notice to the other Party. within ninety (90) days from the
date the dam.age occurred, , In the event this. Lease is terminated as provided herein, the Lessee
shall, at the Lessee's sole cost and expense, (but using along with the Lessee's own facts, Net
Insurance Proceeds available for that purpose) deliver possession of the Property to Lessor free
and clear of a i1 debris and Lessor and Lessee shall each be released thereby from any further
obligations hereunder accruing after the effective date of such termination, except that such release
shall not apply (aa) to any Rent or Additional Rent or other sums accrued or due (bb) Lessee's
obligations regarding surrender of the Property including the removal of debris, and (ce)
enviromnental liability as provided for in Article XIII,
Section 14.3 Pertonnance 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 performed as substantially as: reasonably possible to the
condition that existed immediately prior to the damage, and shall be performed in accordance with the
provisions of Article VI applicable to the construction of the initial Leasehold Improvements, to the extent
reasonably possible, and subject to changes in Applicable Law, .including, without limitation, building
codes. 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, including, without. limitation, based
on the severity of the damage, time required for adjustment of insurance proceeds, preparation of
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construction drawings, obtaining 'building pennits, and the bidding out of the. construction work and
engagement of a general contractor.
Section 14.4 No Right to Terminate.
Except for the Lessee's right to terminate this Lease in accordance with the provisions of
Subsections 14,2(ii)(b) and (iii), Lessee waives the provisions of any statute, code or judicial decision
which grants Lessee the right to terminate this Lease in the event of damage or destruction of the Property,
Section 14.5 Lessee's Right to Terminate.
If Lessee or Lessor elects to exercise the option given under Subsections 14.2(ii) or (iii),
respectively, to terminate this Lease, then. any and all Net Insurance Proceeds paid. for damage or
destruction of the Property shall be applied as follows:
(i) First toward debris removal; and
(ii) Second, the balance of the proceeds, if any, after payment of any Rent and/or
Additional Rent due through the effective date of termination, shall be paid as follows: (i) to Lessee
to the extent such Net Insurance Proceeds- are attributable to damage to the Leasehold Improvements
and to any trade 'fixtures, furnishings, equipment or other personal property of Lessee; and (ii) to
Lessor to the extent such Insurance Proceeds fire attributable to .damage to any buildings .or
structures on the Property constructed prior to the Possession Date (exclusive of damage to any
Leasehold Improvements which Lessee shall have made to any .such existing buildings or
structures),
Section .14,6 Pavment'for Construction of the Restoration Work.
To the extent this Lease is not terminated pursuant to the terms of Section 14.2, above, then Net.
Insurance Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work
(pursuant to this Article and Section 9.3) to restore the Property (excluding the Parking Facilities Retail
Area). The Net Insurance Proceeds shall be paid out, the Restoration Work. shall be performed, and the
Lessee shall make additional deposits with an escrow agent, if any are required, all in accordance with
Section 9.3, as .maybe applicable
Section 14,7 Collection of Insurance Proceeds.
The Lessor shall in no event beresponsible for the non -collection of any insttrnnee proceeds under
this Lease -but only for' insurance money that shall come into its hands.
Section 14,8 Unused Insurance Proceeds and Deposits.
In the event. that following the substantial completion of any Restoration Work, any Net Insurance
Proceeds or sums deposited with an escrow agent or Lessor in connection with the Restoration Work shall
remain in the hands of an escrow agent or the Lessor, if the Parties have agreed: to allow the Lessor to hold
the insurance proceeds until completion of the Restoration Work, and if the Lessee shall not then be in.
default under this Lease in respect of any matter or thing of which notice of default has been served on the
Lessee, following the expiration of any applicable cure period following notice, then the remaining funds
shall be applied first towards any unpaid Rent, and the balance paid to the Lessee, within thirty (30) days
followingthe substantial completion of.any such Restoration Work.
ARTICLE XV
EMINENT DOMAIN
Section 15.1 Total Condemnation.
In the event that all of the Property (or such portion thereof as shall, in the reasonable discretion of
Lessor or Lessee, renter it economically unfeasible to maintain in effect this Leiuse far its intended
purpose) shall be taken for any public purpose by the right of condemnation, the exercise of the power of
eminent domain or shall be conveyed by the Lessor and. Lessee acting jointly to avoid proceedings of such
taking, the Rent and money to be treated as Additional Rent pursuant to this Lease shall be prorated and
paid by the Lessee to the Date of Taking or conveyance in lieu thereof, and this Lease shall terminate and
become null and void as of the Date of Taking or such conveyance; arid. the amount of damages resulting to
Lessor and Lessee, respectively, and to their respective interests in and to the Property; the Leasehold
Improvements, and. this Lease, taking into account the Agreed Allocation Principles (as such term is
defined below) shall be separately determined and computed by the court having jurisdiction and separate
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awards and judgments with respect to damages to Lessor and Lessee, respectively, and. to each of their
respective interests, shall he made and entered ,
In the event. that n court shalt make a single Nct Condemnation Award without separately
determining the respective interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in
writing as to their respective portions of an award within twenty (20) days after the date of the final
determination by the court of the amount of it, Lessor and Lessee agree to submit the matter to the court on
stipulation for the purpose of judgment determinative of their respective shares, in accordance with the
Agreed Allocation Principles. In the event for any reason the trial judge rethses to permit a determination
by judgment, then the respective interests of Lessor and Lessee shall be determined by arbitration under the
provisions set forth in Section .16.6 of this Lease, on the basis of the following premises (the "Agreed
Allocation Principles"): the Lessor shall be entitled to receive the then value of its fee interest in the
Property, assuming that such fee interest shall be subject to this Lease (and all of the terms and conditions
thereof), which a buyer willing but not obligated to buy, wouldpay therefore in an arms length transaction„
Lessee shall be entitled to the then value of its Leasehold Estate and the Leasehold Improvements, which a
buyer willing but not ;obligated to buy, would pay therefore in an arm's length transaction. In no event
shall Lessee he entitled to compensation for any fee simple ownership interest in the Property at the time of
condemnation.
Section 15.2 Partial Condemnation,
(a) In the event less than all of the.Propert.y 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 determine in its reasonable discretion
that it is economically feasible to maintain in effect this Lease, then this Lease and all the covenants,
conditions and provisions hereunder shall be and remain in. full .force and effect as to all of the Property not
so token or conveyed (except as provided in Section 15.5). Lessee shall to the extent the proceeds of the
Net Condemnation A.wt rd are made available to it, pursuant to the terms hereof, remodel, repair and restore
the Leasehold Improvements on the Property so that they shall be reasonably comparable to Leasehold
Improvements on the Property prior to the condemnation, taking into consideration the fact of the
condemnation; provided, however, that in so doing, Lessee shall not be required to expend more than the
amount of any Net Condemnation Award actually received by Lessee.
(h) The Net Condemnation Award allowed to. Lessor and Lessee shall be paid to and
received by the Parties as follows:
(i) There shall be• paid to the Lessor the then value of the portion of the Property so
taken, assuming that .such portion of the Property shall be subject to this Lease and all of the
terms and conditions thereof), which a buyer willing, but not obligated to buy, would pay therefore
in an arms length transaction.
(ii) There shall be paid to the Lessee the then value of the portion of the Leasehold
Estate and the Leasehold Improvements so taken, which a buyer willing but not obligated to buy,
would pay therefore in an arm's length transaction;
(iii) There shall be paid to the Lessee the amount required to complete the remodeling
and repairs to the Property and the Leasehold Improvements thereon, required as a result of such
taking;
(iv) The Lessor and Lessee sha1I he paid portions of the balance of the Net
Condemnation Award or awards, if any, which. are allocable' to and represented by the value of
theirrespective interest in .the Property (consistent with the agreed allocation principles set forth in
subparts (i) through (iii), above), as fund by the court in its condemnation award. In the event
that a court shall make a single Net Condemnation Award without separately determining the
respective interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in writing as to
their respective portions of such award within .twenty (20) days alter the date of the final
determination by the court of the amount of it, Lessor and Lessee agree to submit the matter to the
court on stipulation for the purpose of a judgment determinative of their respective shares, in
accordance with the premises set forth in .subparts (i) through (iii), above. In the event for any
reason the trial judge refuses to permit a determination by judgment, then the respective interests
of Lessor and Lessee shall be determined by the arbitration provisions set forth under Section 16.6
of this Lease.
Suction 15.3. Adiustment. of Rent Upon Partial Taking.
In the event a part of the Property shall be taken fair any public use or purpose by the exercise of
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the power of eminent domain, or shall be conveyed by Lessor and Lessee acting jointly to avoid
proceedings of such taking, then Rent, and money to be treated as Additional Rent pursuant to this Lease
shall be paid by Lessee to the Date of Taking or conveyance in lieu thereof, and. after such date the
Minimum Base Rent for the remainder of the Property shall be reduced in the same proportion as the'
reduction in the Fair Market Rent as a consequence of such taking, as determined in accordance with an
appraisal conducted pursuant to the procedures set forth in Section 4,3,2, above.
Section 15.4. Deposit of Condemnation Award with Escrow Agent,
Unless the effect of a condemnation proceeding shall be to terminate this Lease by operation of
law or as provided in Section 14.2 above, any Net Condemnation Award made in respect to the Property in
a condemnation proceeding shall he deposited with an escrow agent selected by the Lessor and. Lessee
escrow agent) to be disbursed for the cost of restoring the Property and for other related purposes.
Section 15.5, Temporary Taking.
In. the event that all or any portion of the Property shall be taken by the.right of condemnation or
the exercise of the power of eminent domain for governmental use or occupancy for a temporary period,
this Lease shall not terminate and Lessee shall continue to 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 Property, " In the event the taking for governmental
occupancy is for a period entirely within the term of this Lease, then Lessee shall be entitled to receive the
entire amount. of any Net Condemnation Award made for the taking, whether paid by way of damages,
Rent or otherwise, If the period. of governmental occupancy' extends beyond the termination- of the Lease
Term, the Lessor shall only be entitled to receive that portion.of the Net Condemnation Award allocable to
the period beyond the termination of the Lease Term, The amount of any Net Condemnation Award
payable to Lessee, on account of a temporary taking of all or any part of the Leasehold lmprovements,,shall
be deemed a. part of the Lessee's Leasehold Estate for all purposes in this Lease, If die Net 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 Section 15.5, In the event for any reason the trial judge. refuses to
permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined
by the arbitration provisions set forth under Section 16,6.o1'this Lease.
ARTICLE XVI
LESSEE DEFAULTS & LESSOR
REMEDIES FOR DEFAULT
Section 16,1 Lessee Default.
The occurrence of any one or more of the following events is deemed a "Lessee Default;"
(a) If the Lessee defaults in the due and punctual payment of any installment of Minimum
Base Rent, Percentage Rent or any other sums required to be paid hereunder as Additional Rent, as and
when due and payable in accordance with this Lease, and such. default continues for more than (10) ten
days following receipt of written notice from Lessor;
(b) Except with respect to an event of Force Majeure, periodic tenant vacancies, periodic
repair and refurbishment to .the Leasehold Improvements, periods of time required for insurance
adjustments and reconstruction following casualty or partial taking, in the event Lessee shall cease to
operate its business, unless pernntted by Lessor in connection with alterations or renovations, for a period
of thirty (30) conseeuth a days;
(c) In the event. n petition in. bankruptcy under any present or future bankruptcy laws
(including but not limited to reorganization proceedings or voluntary insolvency Cling) be filed by or
against Lessee and such petition is not dismissed within ninety (90) days from the tiling 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, except as
provided in Section 11,3(a);
(e) In the event of an appointment by any court of a receiver or other court officer of Lessee's
Property and such receivership is not dismissed within ninety (90) clays from the date of such appointment;
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(t) In the event Lessee removes, attempts to remove, or permits to be removed from the
Property, except in the usual course of trade, the Leasehold Improvements (or any furnishings, fixtures; and
equipment) installed. or placed upon the Property by the Lessee during the Lease Term;
(g) In the event Lessee, before the expiration of the term of this Lease, and without the
written consent of' Lessor, vacates the Property or abandons the possession thereof (except with respect to
an event of Force Majeure, and excluding periodic tenant vacancies, periodic repair and refurbishment to
the Leasehold Improvements, periods of time required. for insurance adjustments and reconstruction
following casualty or partial taking), or uses the same for purposes other than- the purposes for which the
same are hereby leased, or ceases to use the Property for the -purposes herein contained;
(h) In the event Lessee does Dot accept. the adjusted Minimum Base Rent determined by the
independent appraiser established for the Renewal Tenn after the conclusion of any dispute resolution
process related thereto.
(i) Subject to the rights of a Leasehold Mortgagee, pursuant to Seotion 11.12, above, in the
event. an execution or other legal process is levied upon. a material portion of the goods, ftuniture, effects or
other personal. property of Lessee brought on the Property, or upon the- interest of Lessee in this Lease, and
the same is not satisfied, dismissed: or bonded within sixty (60) days from such levy; or
(j) In the event Lessee defaults in the due performance or observance of any material
covenant, condition or provision of this Lease rind such default continues for more than sixty (66) days
alter written notice of the default from the Lessor to the Lessee, unless such default be. one which cannot
reasonably he cured within sixty (60) days and the Lessee within such sixty (60) day period shall have
commenced and thereafter shall continue to diligently prosecute all actions necessary to ore stl.ch defaults,
such failure shall constitute a Lessee Default.
Section 16.2 Remedies of Lessor,
(a) If an Lessee Default occurs, Lessor shall .have the right after the expiration of the
applicable cute periods set forth in subsections (a) through (j) -(each, a "Cure Period"), at the option of
Lessor and subject to the rights of the Leasehold Mortgagee, to terminate this Lease upon providing fifteen
(15) days written notice if the default has not been cured by the expiration of such fifteen {15) day period,
A Lessee Default shall be. deemed to have occurred if the default has not been cured by the expiration. of
such. fifteen. (15) day period. Additionally, if any Lessee Default occurs, Lessor may, at its option, .from
time to time, without terminating this Lease, re-enter and re -let the Property, or any part thereof, as the
agent and for the account of Lessee upon such terms and conditions as Lessor may deem advisable or
satisfactory, in which event the rents received an such re -letting shall be applied. first to the expenses of
such re -letting and. collection including but not limited to, necessary renovation and. alterations of the
Property, treasonable attorneys fees, any real estate commissions paid, and thereafter toward payment of all
sums due orto become due to Lessor hereunder; and..if a sufficient sum shall not be thus realized or secured
to pay such sums and. other chatges,.at Lessor's option, Lessee shall pay Lessor any deficiency immeiiately
upon demand therefore, notwithstanding.that Lessor may have received periodic rental in excess of the
periodic rental stipulated in this Lease in previous or subsequent rental periods, and Lessor may bring an
action. therefore as such deficiency shall arise, Nothing herein, however, shall be construed to require
Lessor to re-enter and re -let the Property in any event, Lessor shall not, in any event, be- required to pay
Lessee any surplus of any sums received by Lessor on a re -letting nt'saki Property in excess of the Rent
provided in. this Lease.
(b) If a Lessee Default occurs, Lessor shall have the right to obtain injunctive and declaratory
relief, temporary and/or permanent, against Lessee or any acts, conduct or omissions of Lessee, and to
further obtain specific performance of any term, covenant or condition of this Lease,
(c)If a Lessee Default occurs, Lessor shall have the right, at its option, to declare the present
value of the sum of all Rent (or any portion thereof) For the• entire remaining Lease Term, and other
indebtedness owing by Lessee to Lessor, if any (less the present value of the Fair Market Rent for the
Property, determined as provided in Section 4,3,2, above, for the .remaining Lease Term) immediately due
and payable without regard to whether possession of the Property shall have been surrendered to or taken
by Lessor, and may commence action immediately thereupon and recover judgment therefore.
(d) If Lessee Default 'occurs, Lessor, in addition to other rights and remedies it may have,
shall have the right to remove all or any part of Lessee's personal properly from the Property and. any
personal property removed may be stored in any public warehouse or elsewhere at the cost nt, and for the
account of Lessee, and Lessor shall not be responsible for the care or safekeeping thereof whether in
37
transport, storage or otherwise, • and Lessee hereby waives any and all claim against Lessor for loss,
destruction and/or damage or injury which may he occasioned by any of the aforesaid acts,
(e) No such re-entry or taking possession of the Property by Lessor shall be construed as an
election on Lessor's part to terminate this'Lease unless a written notice of such intention is given to Lessee.
Notwithstanding any such re -letting without termination, Lessor may at all times thereafter elect to
terminate this Lease for such previous Lessee Default, Any such re-entry shall he 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.
(1) Any Rent which may be due Lessor, whether by acceleration or otherwise as herein
provided in this .A.rticle, shall. include .Minimum Base Rent,_ Percentage Rent and any otherr ents, costs and
expenses denominated as Additional Rentin this Lease.
(g) It is expressly agreed that the forbearance on the part of Lessor in the institution of any
suit or entry of judgment for any part of the Rent herein reserved to Lessor, shall not serve as a defense
against nor prejudice a subsequent action for such Rent, Lessee hereby expressly waives Lessee's right to
claim a merger or waiver of such subsequent action in any previous suit or in the judgment entered therein.
Furthermore, it is expressly agreed that claims for liquidated Minimum Base Rent and/or Percentage Rent.
may he regarded by Lessor, if it so elects, as separate and independent claims capable of being separately
assigned.
(h) Any and all rights, remedies and options given in this Lease to Lessor shall be cumulative
and in addition to and without waiver of or in derogation. of, any right or remedy given to it under any laws
now or hereafter in effect.
Section 16.3 No Waiver by Lessor.
The waiver (either expressed or implied by law) by Lessor of any default of any term, condition or
covenant herein contained shall not be a waiver of any subsequent default .of the same or any other term,
condition or covenant herein contained, The consent or approval by Lessor to or of:any act by Lessee
requiring Lessor's consent or approval shall not he deemed to waive or render unnecessary Lessor's consent
to or approval of any subsequent similar act by Lessee. Na 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 teen, covenant or condition ofthis Lease, or
a waiver of the right of Lessor to annul this Lease or to re-enter the Property or to. re -let same.
Section 16,4 Late Payments.
In the event any payment due Lessor under this Lease shall not be paid on the due date, Lessee
agrees to pay, in addition to the payment then due, ono -half (0.5%) percent of the amount due or the sum
of One hundred Dollars ($400), whichever' is greater, for each day that the payment is late, ("Late Fee").
and in the event that any check, bank draft, order for payment or negotiable instrument given to Lessor for
any payment under Lease shall be dishonored lbr any reason whatsoever not attributable to Lessor, Lessor,
in addition to the Late Fee, shall he 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 ,o Lessee of any violation of this Lease, during the tern hereof, Lessor shall. he
entitled' to make an administrative charge to Lessee of One Hundred and 0/100 Dollars ($100,00) for each
such subsequent notice after the first notice. Lessee recognizes and agrees that the charges which Lessor is
entitled to. make upon the conditions stated in this section represent, at the time this Lease is made, a fair
and reasonable estimate andliquidation of the costs of Lessor in the administration of the Property resulting •
from the events described which costs are not contemplated or included in any Rent, or other charges
provided to be paid by Lessee to Lessor in this Lease, Any charges becoming due under this Section of this
Lease shall he added to and become due with the late payment for which the charge was assessed and shall
he collectible as a part thereof,
Section 16,5 Remedies Cumulative.
No remedy conferred upon or reserved to the Lessor or the Lessee shall be considered exclusive of
any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this
Lease or existing at law or in equity or by statute; and every power and remedy given by this Lease to the
Lessor or the Lessee may he 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 he construed to he a
waiver of any default or any acquiescence in it,
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Section ] 6.G Arbitration.
(a) Rectuest to Arbitrate, The Parties.hereby agree that, subject to the consent of the
City Manager and the Lessee, which consent may be withheld by either party for any reason, any dispute,
disagreement or controversy arising under this Lease, or with respect to the interpretation or enforcement of
this Lease may be .settled by arbitration. Either Party may request to arbitrate by providing written notice to
the other Party setting forth the nature of the request to arbitrate, Within fifteen (15) days of receipt of such
request. to arbitrate, the other Party shall respond as to its agreement or disagreement to arbitrate, Failure of
the other Party to respond shall be deemed denial of a•request to arbitrate.
(b) Procedures. In the event .arbitration is agreed to, the following :procedures will govern
any arbitration aceorciing.to tbis_Lease,._
(i) Within ten (10) days of the Parties agreeing to arbitrate, each, party shall
designate an arbitrator.
(ii) Within ten (10) days after the appointment of the two arbitrators,, the two
arbitrators shall meet and appoint a third arbitrator which shall constitute the Arbitration Panel.
(iii) Every member of the Arbitration Panel must be a member of the American
Arbitration Association ("Member"), In addition to the foregoing criterion, each Member shall satisfy the
following conditions; ( ) no Member shall be a person who is or has been an employee of either the Lessor
or Lessee during the five (5) year period immediately preceding his or her appointment; (ii) each Member
shall be neutral and independent of the Parties to this.Lease; (iii) no Member shall be affiliated with either
Parties' auditors; and (iv) no Member shall have a conflict of interest with (including, without limitation,
any bias towards or against) a Party hereto.
(iv) If'either party shall fail to. designate a Member within ten (10) days after receipt
of the written notice from the other party, then such other party may request the President of the Florida
Chapter of the American Arbitration Association to designate a Member, who, when so designated, shall
act in the same manner as if he had been the Member designated by the party so failing to designate an
arbitrator.
(v) I1'the two Members appointed by the Parties are tumble to agree upon the third
Member within ten (10) days front. the last date of designation, then upon the request of either of the two
(2) Members, or either Party, such third Member shall be designated by the President of the Florida Chapter
ol'the American Arbitration•.Association, who shall appoint such third Member within ten (10) days of the
request.
(vi) A hearing shall be commenced within thirty (30) days f.'ollowing the selection. of
the Arbitration Panel.; The Parties shall each make a good faith effort to cooperate with each other in all
respects in connection with the exchange, of documents .relevant to the subject dispute. A court reporter
shall make a transcript of.the hearing. The Parties and. the Arbitration Panel shall use their best efforts to
conclude the hearing within ten (10) days. The Parties shall be entitled to such pre-trial discovery as they
may agree, or as determined by the Arbitration Panel, The Arbitration Panel shall have the right to
question witnesses at the hearing, but not to cull witnesses, The Arbitration Panel may grant continuances
only by the agreement of both Parties. The Arbitration. Panel may render a decision at the close of the
hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall.be
filed with the terms and, on the schedule set by the Arbitration .Panel, but in any event no later than forty-
five (45) days following the commencement of the hearing. The Arbitration Panel shall render a
determination within thirty (30) days from the conclusion of the hearing, and in the event briefs are
submitted, within thirty (30) days after receipt of said briefs. If no determination is rendered within such
time, unless the Parties agree otherwise, a new Arbitration Panel shall be selected as described above, but
the new Arbitration. Panel shall render a determination solely upon review of the record of the hearing
without a further hearing.
(vii) All actions, hearings and decisions of the Arbitration Panel shall be conducted,
based upon and in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. In determining any matter before them, the Arbitration Panel shall apply the terms of this
Lease, and shall not have the power to vary, modify or reform any terms or provisions of the Lease in any
respect. No Arbitrator is authorized to make an award of punitive or exemplary damages, The Arbitration
Panel shall afford a hearing to the Lessor and to the Lessee who shall each have the right to be represented
by counsel at such hearing and to call witnesses, and the right to submit evidence with the privilege of
cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by
the Arbitration Panel in Miami -Dade County, Florida.
39
(viii) The Arbitration Panel selected hereunder shall agree to observe the Code of
Ethics for Arbitrators in Commercial -Disputes promulgated by the American Arbitration Association and
the American Bar Association, or any successor code. The decision of a majority with respect to any
matter referred. to it under this Lease shall be final, binding and conclusive on the Lessor and Lessee and
enforceable in any court of competent jurisdiction. Together with the determination, the Arbitration Panel
shall provide a written explanation of the basis for the determination. Each party shall pay the fees and
expenses of the Member of the Arbitration Panel designated by such party, such party's. counsel and witness
fees, and one-half ('/2) of all expenses of the third Member of the Arbitration Panel. The decision of the
Arbitration Panel will be final, and may be enforced according to the laws of the State of Florida and
judgment upon the award_ rendered by_ the _Arbitration_Panel shall be entered in any Court having__
jurisdiction thereof,
ARTICLE XVII.
ACCESS EY LESSOR
Section 17,1 Right of Entry.
Lessor and Lessor's agents shall have the right to enter the Property at all reasonable times upon
not less than twenty-four hours prior notice to the Lessee (except in the case of an emergency when no
notice is required), to examine the satne. Lessee shall have the right to designate a representative of Lessee
to accompany Lessor during any such entry upon the Property. I1' Lessee shall not be personally present to
open and permit entry into the Property at any time when in the event. of an emergency, an entry therein
shall be necessary, Lessor or Lessor's agents may enter the same without in any manner affecting the
obligations and covenants of this Lease: Nothing herein contained, however, shall be deemed or construed
to impose upon Lessor any obligation, responsibility or .liability whatsoever, for the care, maintenance or
repair of the Property or any part thereof, except as otherwiseberein specifically provided.
ARTICLE XVHI
DAMAGE TO LESSEE'S PROPERTY
Section 18.1 Loss and Damage.
Lessor shall not be responsible for any .damage to any property of Lessee (including without
limitation applianees, •equipment, machinery, stock, inventory; fixtures, furniture, improvements, displays,
'decorations, carpeting and painting), or of others located on the Property, nor for the Toss of or damage to
any property of Lessee, or of others -by theft or otherwise, except as resulting from the actions of Lessor or
Lessor's agents, employees, or representatives, Lessor shall not be liable for any injury or damage to
persons or property resulting from fire, smoke, explosion, falling plaster, steam, gas, electricity,. water, rain,
or leaks from any part of the Property or from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place by dampness or by any •other cause of whatsoever nature.
Lessor shall not be liable for any latent defect in the Property. All property of Lessee kept or stored on the
Property shall be so kept or stored at the risk of Lessee only and Lessee shall hold Lessor harmless from
any and all claims arising out of damage to same, including subrogation claims by Lessee's insurance
carriers, except as resulting 1i'otn the actions of Lessor or Lessor's agents, employees, or representatives
ARTICLE XIX
HOLDING OVER, SUCCESSORS
Section 19.1 Holding Over.
In the event Lessee remains in possession of the Property alter the expiration of the Lease Term,
Lessee, at the option of Lessor, shall be deemed to be occupying the Property as a Lessee at sufferanceat a
monthly rental equal to two (2) times the Minimum Base Rent and the 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 ad valorem taxes for the Property based upon the total ad valorem taxes payable for the Lease Year
immediately prior to the Lease Year in which the expiration occurs; (b) the monthly premium cost. of
insurance for which Lessee would have been responsible if this Lease had been renewed an 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 .attributable to the period of such holdover. 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 ol'this Lease,
Section 19.2 Successors. .
All rights turd liabilities herein given to, or imposed upon, the respective Parties hereto shall
40
extend to and bind the several respective heirs, executors, administrators, successors, and the assigns of the
said Parties;. and if there shall be more than one Lessee, they shall be bound jointly and severally by the
terms, covenants and agreements herein. Nothing contained in this Lease shall in any manner restrict
Lessor's right to assign or encumber this Lease and, in the event. Lessor sells its interest. in the Property and
the purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved of all fbrther
obligations hereunder.
ARTICLE XX
EQUAL OPPORTUNITY & NON-DISCRIMINATION
Section 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' affirmative action to assure that applicants are
employed and that employees are treated during employment without, regard to race, creed, color, place of
birth, religion, national origin, sex, age, marital .status, veteran and disability status; (b) post in conspicuous
places, available to employees and. applicants for employment, notices; the form of which is to be provided
by the Lessor, setting forth provisions for this nondiscrimination clause; (e) in all solicitations or
advertisements for employees placed by or on behalf of the Lessee shall state that all qualified applicants.
will receive consideration for employment without regard. to race, creed color or national origin; and (d) if
applicable, to send to each labor union or representative of workers with which the construction contractor
has a collective bargaining agreement or other contract or understanding n 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.
Section. 20.2 Non -Discrimination,
• Lessee represents and warrants to the Lessor that.it_will' comply with Sections 18-188 through. 18-
1.90 of the Code of the City of Miami Code, as amended, and incorporated herein by reference ("Code"),
Lessee hereby represents and warrants that it does not and will not engage in discriminatory practices and
shall' not discriminate in connection with Lessee's use of the Property on account of race, national origin,
ancestry, color, sex, religion, age, handicap, fiunilial status, marital status or sexual orientation,
Furthermore, should the Lessee have existing or introduce membership rules for patrons at the Property that
it will comply •with the non-discrimination provisions incorporated within the Code,
ARTICLE XXI
MISCELLANEOUS
Section 21.1 Accord and Satisfaction,
No payment' by Lessee or receipt by Lessor of a. lesser amount than the Rent herein stipulated to be
paid shall be deemed.to be other than on account of the earliest stipulated Rent, nor shall any endorsement
or statement on any d1 eck or any letter accompanying any check or payment. as rent be deemed an accord
and satisfaction, and Lessor may accept such check or payment without prejudice to Lessor's right to
recover the balance of such Rent or pursue any other remedy provided herein or by law.
Section 21..2 Entire Agreement; Amendments; -Resolution. of Conflicts,
(a) This Lease, the REP, the Proposal, and the Exhibits attaohed hereto and f'onning a part
thereof as if fully set forth herein constitute all of the covenants, promises, agreements, conditions and
understandings betweer Lessor and Lessee concerning the Property and there are no covenants, promises,
conditions or understandings, either oral or written, between them other than as are herein set forth,
Neither Lessor nor Lessor's agents have made nor shall be bound to any representations with respect to the
Property except as herein expressly set forth; and all representations, either oral or written, shall be deemed
to be merged into this Lease. No course. of prior or future dealings between the Parties or their officers,
employees, agents. or affiliates shall be relevant. er 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 Pnrties•or their affiliates shall not be relevant or admissible to determine. the
meaning of any of the terms of this Lease, 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.
(b) Except as herein otherwise provided, the Parties may only amend, alter, change, or
41
modify this Lease by execution of written instrument signed by the Parties.
(c) If a conflict, error, ambiguity, or discrepancy arises between the provisions of this Lease,
the Proposal and the RFP, then the in resolving any matter between the provisions thereof (except where
such an interpretation would result in a violation of Applicable Law) the provisions of this Lease shall take
precedence over either the Proposal or RFP and the provisions of the RPP shall take precedence over the
Proposal.
Section 21,3 Independent Parties
It is understood. and agreed by the Parties hereto that this Lease does not create a fiduciary or other
relationship between Lessor and Lessee, other than Lessor and Lessee or contracting parties, as applicable,
Lessor and Lessee are and shall be independent contracting parties and nothing in this Lease are intended to
make either Party a general or special agent, ,joint venturer, partner or employee of the other for any
purpose,
Section 21,4 Notices.
Any notice by the Parties required to be given must be served by certified. mail return receipt
requested, or by hand delivery, addressed to Lessor or Lessee at:
If to Lessor at:
City Manager
City of Miami
444 SW 2nd Avenue, 10'1' Floor
Miami, Florida 33130
With a copy to:
City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9d' Floor
Miami, Florida 33130
City of Miami
Dept. of Public Facilities
Asset Management Division
444 SW 2nd.Avenue, Suite 325
Miami, Florida 33130
If to Lessee at:
Grove Bay Investment Group, LLC
2950 SW 27 Avenue
Miami, Florida, 33133
With a copy to:
Holland & Knight LLP
Attn: Richard A. Perez
701 Mickel] Avenue, Suite 3000
Miami, Florida 33131
All notices given hereunder shall be effective and deemed to have been. given upon receipt by the
party to which notice is being given, said receipt being deemed to have occurred upon hand delivery or
posting, or upon such date as the postal authorities shallshow the notice to have been delivered, refused, or
undeliverable, is evidenced by the return receipt or proof of deliver. Notwithstanding any other provision
hereof, Lessor shall also have the right to give notice to Lessee in any other manner provided by law. Il'
there shall be more than one Lessee, any notice required or permitted by the terns of this Lease may be
given by or to any one thereof, and shall have the same force and effect as if given to all thereof.
Section 21.5 Captions and Section Numbers.
The captions; section numbers, and article numbers appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections
or articles of this Lease nor in any way affect this Lease.
Section 21,6 Partial Invalidity.
If any term, covenant or condition of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid orunenforceable, the remainder of this Lease, the application
of such term, covenant or condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and. each term, covenant or condition of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
Section 2(.7 Estoppel Certificate.
Lessee agrees that it will, at any time and from time to time, within ten (10) Business days
42
following written notice by Lessor specifying that it is given pursuant to this Section,. execute, acknowledge
and deliver to Lessor a statement in writing certifying that this Lease is unmodified. and in full force and
-effeect (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 Minimum Base Rent, Percentage Rent and any other payments
due hereunder from Lessee have been paid in advance, if any, end stating whether .or not there are defenses
or offsets claimed by Lessee and whether or not to the best knowledge of Lessee, Lessor is in default in
performance of any, covenant, agreement or condition contained in this Lease, and if so, specifying each
such default of which Lessee may have knowledge, The failure of Lessee to execute, acknowledge and
deliver to Lessor a statement in accordance with the provisions of this Section within said ten (10) Business
day period shall constitute Lessee Default hereunder and shall also constitute an. acknowledgment h�
Lessee, which may be relied on by any person holding or proposing to acquire an interest in the Property or
any part thereof or this Lease from or through the other party, that this Lease is unmodified end in full force
and effect and that such rents have been duly and fully paid to and including the respective due dates
unmediately preceding the date ofsuelr notice and shall. constitute, as to any person entitled as aforesaid to
rely upon such statement, a waiver of any defaults which may exist prior to the date of such notice, It is
agreed that nothing contained in .the provisions of this Section shall constitute waiver by Lessor of any
default in payment of Rent or other charges existing as of the date of such notice and, unless expressly
consented to in writing by Lessor and, Lesseeshall still remain liable for the same.
Lessor agrees that it will, at any time and. from time to time, within fifteen (15) Business days
following written nottee• by Lessee- specifying that it is given pursuant t.o this Section, execute;
acknowledge and deliver to Lessee or any lender providing financing to Lessee, 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 Minimum Base
Rent, Percentage Rent and any other payments due hereunder from Lessee have been paid in advance, if
any, and stating whether or not there are defenses or offsets claimed by Lesaor and whether or not to the
best knowledge ofLessor, Lessee is in default in 'performance orally; covenant, agreement or condition
contained in this Lease, and if so, specifying each such default of which Lessor may have knowledge. The
failure of Lessor to execute, acknowledge and deliver to Lessor a. statement in accordance with the
provisions of this Section within said tluirty (30) Business Day period shall constitute an acknowledgment
by Lessor, which may be relied on by any person holding or proposing to acquire an interest in the
Property, including, without limitation, any -leasehold mortgage upon the Leasehold 13state, or any part
thereof or this Lease from• or through the other party, that this i.,ease is unmodified and in. full force .and
effect and that such rents have been duly and fifty paid to and including the respeotive due dates
immediately preceding the date of such notice and shall constitute, as to any person entitled as aforesaid. to
rely upon such statement, a waiver of any delimits which may exist prior to the date of such notice.
Section 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 offthe 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 tune of the same provisions, The consent or approval to or of any .action by either party
requiring such consent or approval shall not be deemed to waive or render unnecessary such consent or
approval to or of any subsequent similar act by such party.
Section 21.,10 Time is of the 13ssence.
Time is of the essence with respect to the performance of every provision of this Lease in which
time of performance is a factor.
Section 21,11 Governing Law,
It is the intent. of the Parties hereto that all questions with respect to the construction of the Lease
and the rights and the liabilities of the Parties hereto shall be determined in accordance with the laws of
Florida and that all disputes arising hereunder shallbe heard and decided in Miami -Dade County, Florida.
Section 21.12 Waiver of Counterclaims.
Lessee shall not impose any counterclaim or counterclaims for damages (except for compulsory
counterclaims) in a summary proceeding or other action based on termination or holdover, it being the •
intent of the Parties hereto. that Lessee is strictly limited in such instances to bringing. a separate action in
the court of appropriate jurisdiction. The foregoing waiver is a material inducement to Lessor making,
43
executing nnddelivering this Lease and Lessee's waiver of its right to counterclaim (except for compulsory
counterclaims) in any summary proceeding or other action based on termination or holdover is done so
knowingly, intelligently and voluntarily.
Section 21.13 Waiver of Jut), Trial.
Lessor and Lessee hereby waive trial by jury in any action, proceeding or counterclaim brought by
either of the Parties hereto against the other on, or in respect of, any matter whatsoever arising out of or in
any way connected with this Lease, the relationship of Lessor and Lessee hereunder, Lessee's use or
occupancy of the Lease Property and/or any claim of injury or damage.
Section 21.14 Quiet.Rnjoyment,
____Zpnn_the observance._hy_the_Lesscn_hereu ides a _all the_terns;_proxisions,Yenants_and
conditions imposed upon the Lessee, the Lessor covenants to the Lessee that the Lessee shall peaceably and
quietly hold, occupy and enjoy the Property for the Lease Term without.any interruption, disturbance or
hindrance by the Lessor, its successors and assigns, or by persons claiming by, through or under the Lessor
for the Property leased herein, orby.persons with title superior to the Lessor, its successors and assigns.
Section.21.,15 Surrender of Possession. •
Upon the expiration or earlier termination of the Lease pursuant. to the provisions hereof,. the
Lessee shall deliver to the Lessor possession of the Property in good repair and condition, reasonable wear
and tear excepted.
Section 21,16 Joint nnd.Several Liability,
If two or more individuals, corporations, partnerships or other business associations (or any
combination of two or more thereof) shall sign this Lease as Lessee, or by virtue of a Transfer assume the
rights and obligations of the Lessee hereunder, the liability of eaoh such individuals, corporations,
partnerships or other business associations (or any combination of two or more thereat) to pay Rent and
perform all other obligations hereunder shall be deemed to be joint and several, and all notices, payments
and agreements given or made by, with or to any one of such individuals, corporations, partnerships or
other business associations (or any combination of two or more thereof) shall be deemed to have been
given or made by, with or all of them.
Section 21.17 Third Party Benefioiarv.
Nothing. contained in this Lease shall be construed so as to confer upon any other party the rights
of third party beneficiary.
Section 21.18 Radon.
Radon is a naturally occurring radioactive gas that, when it has acoumulirled in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon
that exceed Federal and State guidelines have been found in buildings in Florida. Additional information
regarding Radon and Radon testing may be obtained from your county public health unit.
Section 21.19 No Liability for Act of other Party
Lessee shall not sign any contract, application for any license or permit or do 'anything that may
result in liability to the Lessor for any indebtedness or obligation of Lessee, unless expressly provided
herein or approved in writing by the Lessor. Except as expressly authorized in writing, neither• Lessor nor
Lessee shall make any t.xpress or implied agreement, warranties, guarantees or representations or incur any
debt, or represent that their relationship is other than Lessor and Lessee, unless otherwise agreed to herein
for the management. and operation of the Property and neither Lessor nor Lessee shall be obligated by or
have any liability under any agreements or representations made by the other that are not expressly
authorized as aforesaid. Lessor reserves the right, at its sole option, to refuse an agreement for any Federal,
State or local grants and loans when the aoceptanee of 'same by either Lessor or Lessee may impose a
hardship upon Lessor or include obligations which extend beyond theLease Term,
Section 21.20 Rights. Privileges and Immunities: Covenants.
The Lessee shall have, and the Lessor shall fully 'cooperate in providing to the Lessee, for its use
and enjoyment, all rights, privileges and immunities as shall from time to time be granted or afforded by
Federal, State or local law to restaurant operators or proprietors and operators and proprietors of uses
comparable to those included among the Permitted Uses.
The Parties agree that each of the terms, covenants and conditionshereof agreed to be observed or
performed by each party shall constitute concurrent conditions of exchange.
Section 2I.21 City of Miami 1-Iirina
Lessee agrees that a minimum of fifteen percent (15%) of the contract value for the construction of
the Leasehold Improvements will be performed by an entity then certified by Miami -Dade County
44
Community Small Business Enterprise. Lessee anticipates that the marina and. restaurant operations at the
Property will generate approximately 200 full time equivalent jobs upon stabilization. Lessee agrees to
work with South Florida Work Force and the City's Economic Initiatives and. Access Programs to advertise
all of the Lessee's entry level positions. Commencing as of the date that the Leasehold Improvements are
completed, Lessee agrees to use good faith efforts to ensure that at least sixty percent (60%) of its
employees are City of Miami residents. The calculation. of employees will be based on the total payroll of
the Lessee, including operational and administrative staff. Afler the third anniversary of the completion of
the Leasehold Improvements, the commitment set forth above will be•reduced to forty (40) percent. The
fbregoing requirements.shal l not apply to Sub -lessees.
Sactionli 2? G.haritable C'onttilzutio
Lessee shall make an annual charitable contribution of thirty thousand dollars ($3.0,000) every
year of the Lease Term to help hind a charitable hospitality -related organization selected by Lessee in
consultation with the City Manager; •
[signature page follows!
45
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,
ATTES
By:
Todd Ha
CI tu Cleric
APP
RE
Ivin Ellis, DI far
Isk Manage �:r nt De•artment
GROUP,
company
() c' , nr 6e/Z
Title
_ffoetziCeyet_
Title
ItyneWoo teotv, elpit4t-
Company Name
46
LESSOR:
CITY OF MIAMI, a • unieipal
corporation of the St F1pri, a
� e
B.•
Jo nny
Ctty-ivlmn'
APPRO
CO
By:
•
El) A
THE
TO FOR AND
•
z&t'ot e Mande
City Attorney
LESSEE:
By:
GROVE BAY INVESTMENT
LLC, a Floridalimited liabili
I3y:
Print Nam
Title
CORPORATE SEAL
EXHIBIT "A"
SCHEDULE OF LEASEHOLD IMPROVEMENTS*
Minimum Marin.a•Renovations
• Complete interior/exterior restoration ol'the two (2) hangar buildings to afford best utilization
of available space for dry rack storage and other uses,
Construction/refurbishment of visually appealing concrete pavement design and construction of
marina-/btra tyard ttnneet-appropriatevehiclas-andioads-tn-result-fronrproposed-mar ina-use.
• Coiplete dock/bulkhead restoration or• replacement alongside •marina in a manner
homogeneous in appearance with the restoration of the adjoining bulkhead. for the casual and
formal restaurant portions of the Property,
Minimum Casual Restaurant Renovations
• Installation of outdoor covering to facilitate patio use.
• Installation of air conditioning within. the enclosed areas,
• Complete renovation of restaurant according .to federal; state and local regulations and code
requirements,
• Complete dock/bulkhead restoration or replacement alongside casual restaurant in a manner
homogeneous in appearance with the restoration of the adjoining bulkhead. for the. marina and
formal restaurant portions of the Property. •
• All applicable ADA requirements and. improvements.
Minimum Formal Restaurant Renovations
• Complete remodeling of the interior to reflect the appearance of modern restaurants,
• Complete renovation of restaurant in compliance with all applicable federal, state and local
regulations,
• Structural modifications to windows so' as to provide full height windows to.improve waterfront.
visibility,
• -Repair of entire dock/bulkhead alongside formal restaurant in. -a manner homogeneous in
appearance with the restoration of the adjoining bulkhead for the marina/casual restaurant portions
.of the Property.
All applicable ADA improvements.
Dock Renovations •
• Construdtion of a fixed dock in front Of formal restaurant portion of Property;
• Renovation of finger pier at casual restaurant.
Garage Retail
. • Build -out of Parking Facilities Retail Area to. be provided by City
*The Leasehold Improvements set forth in. the Proposal, to the extent inconsistent with the description set
forth herein, shall supersede the descriptions set forth in. this Exhibit A,
47
EXHIBIT'"B"
GRAY SHELL STANDARDS
1. Continuous smooth, clean, level completed concrete floor, ready to receive finishes.
2, Demising walls will be hill height metal stud, 3 5/8" 20 ga. 24" oe.
3. Storefront. will have eight (8) aluminum frame glass entrance doors, evenly spaced, located as
L,esse_e'shalipeeify, with hardware installed; andstorefront shall have laminated.safety &AA
window fronts.
4. Interior of exterior walls and interior of demising walls will he finished with. code compliant
drywall, sanded, and ready for paint.
5. No interior walls are provided.
.6. Eight (8) Rear service door, evenly spaced, located as Lessee shall specify, with hardware installed.
7. Plumbing
a. Water and sewer stubbed to meter room location to he agreed upon by lessor and lessee
during the design process., with water meter. Lessee shall he responsible for distribution.
b, Fire sprinkler system installed throughout, including risers, but without drops.
9. Electrical
a. 200 amp, 3-Phase electrical, stubbed to panel in meter room location specified by Lessee and
lessor during the design phase, with electrical meter,
b. One (I) exit/emergency light fixture or as shown on plan
c. Conduit and box for exterior tenant signageor as shown on plan
48
COMPOSITE r'XHIBiT "Gin
PROPERTY
LEGAL DESCRIPTION (PARCEL 1) .
(MARINA/BOATYARD UPLANDS)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of
the Public Records of Miami Dade County, Florida and a portion of.Section 22, Township 54 South, Range
41 East, Miami -Dade County, Florida, more. particularly described as follows:
Commence at the Southwest corner, 'of the Northwest %, of said Section 22; Thence South 02°24'44" East,
along the Sotitherly extension of the West line of the NW 1/4 of said Section 22, for 436.51 feet; Thence
North 86°27'43" East Ad, 75,86 feet to a point labeled FIL-78-C said point being a point of intersection with
the U.S, Pier-I-Iead Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of
Miami -Dade County, Florida, said line also being the Northwesterly line of T.I,I.F. Deecl No. 19448 .to City
of.Miarni, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade 'County,
Florida; Thence along said U,S. Pier -Head Bulkhead line, for the following described four (4) courses; 1)
Thence South 77'01'17" East, for 669.48 feet to a point labeled IIL-78-B; 2) Thence North 74°08'1'0" East
for 526.25 feet to a point labeled HL-78-A; 3). Thence North 4:4°08'20" East for 250,00 feet; 4) Thence
Noit11 '12°08`10" East for 88,25 feet; Thence North 45°44'46" West, departing the previously described line,
for 3:75 feet to a point on the outside face of an existing Seawall; Thence along the outside Thee of said
seawall for the following described twelve (12 ) courses; 1) Thence continue North 45°44'46" West for
12.58 feet; 2) Thence North 46°50'16" West for 262,72 feet to the Joint of Beginning of the hereinafter
described. parcel; 3) Thence North 47°06'49" West for 73,59 feet; 4) Thence North 02°02'56" East for 0,70
feet; 5) Thence North 47°07'52" West for 59.52 feet;.6) Thence North 43°12'49" East for 100.72 feet; 7)
Thence South 46°47'08" East for 61.00 feel; 8) Thence North 88°45'00" East for 0.64 feet; 9) Thence South
47°14'37" Eastfor41.99 feet; 10) Thence North 61°42'01" East for 21.07 feet; 11) Thence South 30°14'35"
East for 2.75 feet; 12) Thence North 62°06'03" East for 5.43 feet to a point of intersection with the
Southerly extension of an existing chain link fence; Thence along said chain link fence .and its southerly
extension for the following described three (3) courses; 1) Thence North 49°34'23" West for 26.67 feet; 2)
Thence South 49°46'11." West for 14,07 feet; 3) Thence North 4694'27" West for 48.90 'feet to a point of
intersection with the Southeasterly extension of the edge of an existing concrete slab; Thence along the
previously described edge of concrete and its 'Southwesterly and Northerly extensions for the following
descried five (5) courses; 1) Thence North 41°51'16" East for 19.89 feet; 2) Thence North 45°40' 17" West
for 20.02 feet; 3) Thence North 41'51'16" East for 10.30 feet; 4) Thence North 448°08'44" West for 26.07
feet; 5)Thence North 43°17' 10" East for 63,60' feet to a point of intersection with the Boundary line of the
tract of land described 'alder Exhibit A in that certain Lease Agreement recorded in Official Records Book
9916, at Page 1110, of the Public Records of Miami Dade County, Florida; Thence along the previously
described Boundary line, and its Northerly extension, for the following described two (2) courses; 1)
Thence North 76°17'34" West fir 63,38 feet; 2) Thence North 12°55'28" East for 138.99 feet to.a point of
intersection with the back of an existing concrete sidewalk; Thence along the back of said concrete
sidewalk, for the following described twenty one (21) courses; 1) Thence North 47°44'58" West for 12.22
feet to a point of curvature of a circular curve concave to the Northeast; 2) Thence Northwesterly, along the
arc of said. curve to the right, having a radius of 98.00 feet and a central angle of 16°31'40" fora distance of
28.27 feet to the point of tangency; 3) Thence North 31 °13'I8 West for 14.48. feet to a point of eurvature
of a circular curve concave to the Southwest; 4) Thence Northwesterly, along the arc of said curve to the
left, having a radius of 100.00 feet and a central angle of 1198'35" for a distance of 20.32 feet to a point of
tangency; 5) Thence North 42°51'53" West.for 5.10 feet to: a point of curvature of n ciroular curve concave
to the Southwest; 6) Thence Northwesterly, along the arc of said curve to the left, having a radius of 33,00
feet and a central angle of 33°27'08" for a distance of 19.27 feet to the point of tangency; 7) Thence North
76°19'01" West for 64.42 feet; 8) Thence South 13°57'56" West for 1.47 feet; .9) Thence North 75°50'29"
West for 25,93 feet; 10) Thence North 45°02'51" West for 18.31 feet to a point of curvature of a circular
curve concave to the Southwest; 11) Thence Northwesterly, along the are of said curve to the loft, having a
radius of 64.79 feet and a central. angle of 11°21'21" for a distance of 12,84 feet to the point of tangency;
12) Thence North 56°24' 12" West. for 5.41 feel to a point of curvature of a circular curve concave to the
Northeast; 13) Thence Northwesterly, along the arc of said curve to the right, having a radius of 23,50 feet
49
and a central angle of 30°58'59" for a distance of 12.71 feet to the point of tangency; 14) Thence North
2'5°25' 13" West for 6.96 feet to a point of curvature of a circular curve concave to the South; 15) Thence
Northwesterly, along the arc of said. curve to the letl, having a radius of 3,00 feet and a central angle of
51 °39'10" fora distance of 2,70 feet to the point of tangency; 16) Thence North 77°04'23" West for 125,67
feet to a point of curvature of a circular curve concave -to the South; 17) Thence Northwesterly, Westerly
and Southwesterly along the arc of said curve to the left, having a radius of 10.15 feet and a central angle of
14°26'49" for a distance of 2.56 feet to the point of tangency; 18) Thence South 88°28'48" West for 17,55
feet; 19) Thence North 76°52' 13" West for 28.42 feet; 20) Thence South 76°07'58" West for 40.18 feet to a
point of cuivatttre of a circular curve concave to the Northwest; 21)'Thence Southwesterly, along the arc of
said curve to the right, having a radius of 43.33 feet and a central angle of 09°406" for .a distance of 7.42
feet to a point of intersection with a line parallel with and 95.00 feet Northwesterly of, as measured at right
angles, the Northwesterly outside face of an .existing building; Thence South 13° 01'32" West, along the.
previously described line, for 135.78 feet, Thence South 12 46'52" West, departing the previously
described line, for 37.38 feet to a point of intersection with a Iine parallel with and 95,00 feet Northwesterly
of, as measured at nigh. angles, .the Northwesterly outside face of an existing building; Thence South 113
07'29" West, along the previously described line and its southerly extension, for 148.75 feet; Thence South
07°43'57" West for 9,81 feet; Thence South 49°47'35" West for 4.49 feet; Thence South 43°01'12"'East for
77.73 feet; Thence South 43°33V0" East for 54,15 feet; Thence South 43°26'13" East for 4.55 feet; Thence
South'48°06'57" East for 20,77 feet to a point of curvature of ft circular curve concave to the northeast;
Thence Southeasterly, along the arc of said cuive to the left, having a radius of 374.00 feet and. a central'
angle of 09°28'16" for a distance of-61.82 feet to the point of tangency; Thence South 57°35'13" East for
23.28 feet; Thence South 80°19'31" East for 172.00 feet; Thence South 79°19'15" East for 13.25 feet to a
point. of intersection with the back of an existing concrete sidewalk running along the north side of Pan
American Drive;; Thence, along the hack of said existing sidewalk and its northeasterly extension, for the
following described five (5) courses; 1) Thence South 74°54'37" East for 28.80 feet; 2) Thence South.
77°42'57" East for 5,71 feet to a point of curvature of a circular curve concave to the Southwest; 3) Thence
Southeasterly, along the arc of saicl curve to the right, having a radius of 222.00 feet and a central angle of
21°55'13" for a distance of 84.93 feet to a point on said curve; 4) Thence North 87°54'54" East for 5,28
feet; 5) Thence North 442°23' 11" East for 11.27 feet to the Point of Beginning,
Containing 195,848 sq. ft. or 4.50 acres more or less.
50
1
LEGAL DESCRIPTION (PARCEL 2)
(FORMAL RESTAURANT
& RESTAURANT PARKING)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of
the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range
41 East, Miami -Dade County, Florida, more particularly described as follows:
Commence at the Southwest corner, of the Northwest 'A, of said Section 22; Thence South 02°24'44" East,
alorng the Southerly extension of the West line of the NW ''A, of said Section 22, for 436.51 feet; Thence
North 86°27'43" East for 75.86 :feet to a point of intersection with the U.S. Pier -Head Bulkhead line of'
1939 as recorded in Plat Book 74, at Page .3, of the Public Records of Miami -Dade County., Florida, said
point labeled HL,-7.8-C.and said line also being the Northwesterly line of T.1.LF. Deed No. 19448 to City of
Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of'Miami-Dade County, Florida;
Thence along said U.S, Pierd-lead Bulkhead lino, for the following described four (4) courses; 1.) Thence
South 77°01'17" East, for 669,48 feet to a point labeled HL-78-B on the previously named. plat; 2) Thence
North 74°08'10" East fnr 526.25 feet to a point labeled HL-78-A on the previously named plat; 3) Thence
North 43°08'20" East for 250,00 feet to a point labeled 1-1L,-76 on the previously named plat; 4) Thence
North 12°08'10" East for 88.25 feet; Thence North 45°44'46" West, departing the previously described Tine,
for 3,75 feet to a point on the outside face of an existing Seawall; Thence along the outside face of said
seawall f'or the following described. fifteen :(15 ) courses; 1) Thence continue North 45°44'46" West .for
12.58 feet; 2) Thence North 46°50'16" West for 262.72 feet; 3). Thence North 47°06'49" West for 73.59
feet; 4) Thence North 02°02'56" East for 0.70 feet; 5) Thence .North 47°07'52" West for 59.52 feet; 6)
Thence North 43° 12'49" East for 100.72 feet; 7) Thence South 46°47'08" East for 61.00 feet; 8). Thence
North 88°45'00" East for 0.64 feet; 9) Thence South 47°14'37" East for 41,99 feet; 10) Thence North
61°42'01" East for 21,07 feet; 11) Thence South 30° 14'35" East for 2.75 feet; 12) Thence North 62°06'03"
East'for 87,88 feet to the Point of Beginning of the hereinafter described parcel; 13) Thence continue North
62°06'03" East for 114.64 feet to a point of curvature of a circular curve concave to the West; 14) Thence
Northeasterly, Northerly and Northwesterly, along the arc ot'said curve to the left, having a radius of 75.00
feet and a central angle of 80°48'49" for a distance of 105.78 feet to the point of tangency; 15) Thence
North 18°42'46" West for 101.33 feet to a point on the northerly right-of-way line of Chart House Drive as
shown on the sketch of survey dated January 14, 1985 referred file No. mist, 61.439 rev, and prepared by
Schwebke & Shiskin and Associates and as shown on that Specific Purpose Survey at Dinner Ivey Marina,
prepared by Biscayne Engineering ; Thence North 76°03'06" West, along the previously described line, for
226.31 feet; Thence South 39°08'26" West, departing the previously described northerly right-of-way litre,
for 12,87 feet to a point on the northerly edge of pavement of Chart House Drive said point being on a
circular curve concave to the Northeast and said point bears South 45°04'04" West from the center of said
curve; Thence along the northerly edge of pavement of said Chart'House Drive for the following described
three (3) courses; 1) Thence' Southeasterly along the arc of said curve to the left, having a radius of 273,78
feet and a central angle of 04°52'06" for a distance of 23.26 feet to a point; 2) Thence South 29°13'50" .
West .for 21.82 feet to a point on a circular curve concave to the Northeast and said point bears South
38°44'40" West from tLe center of said curve; 3) Thence Northwesterly along the arc of said curve to the
Right, having a radius of 348.97 feet and a central angle of 04°24`23" for a distance of 26.84 feet to a point
of intersection with the Boundary line of the tract of land described under Exhibit A in that certain: Lease
Agreement recorded in Official Records Book 9916, at Page 1110, of the Public Records of Miami Dade
County, Florida; Thence along the previously described Boundary line, and its Northerly extension, for the
following described two (2) courses; 1) Thence South 12°55'28" West for 152.77 feet; 2) Thence South
76°17'34" East for 63.38 feet; Thence North 43°17'10" East, departing the previously described boundary
line, for 5.77 feet; Thence South 74°27'18" East for 13,19 feet to a point of curvature of a circular curve
concave to the Southeast; Thence Southeasterly, along the arc of said curve to the right, having a radius of
31.50 feet and a central angle of 33°37'09" East for a distance of 18.48 feet to the point of tangency;
Thence South 40°50'09" East for 37,58 feet to a point on the northerly end of an existing C.B.S. wall;
Thence South 49°09'51 West, along the northerly end of said existing C.B.S. wall for 0.43 feet to a point
on the southerly face of said existing C.B.S. wall; Thence South 38°59'48" East, along the southerly face of
said existing C,B,S. wall and its southerly extension, for 84,41 feet to the' Point of Beginning.
Containing 58,242 sq. ft. or 1.34 acres more or less.
51
LEGAL DESCRIPTION (PAR.CEL 3)
(CASUAL RESTAURANT UPLANDS)
A portion of Section 22., Township 54 South, Range 41 East, Miami -Dade County, Florida, more
particularly described as follows;
Commence at the Southwest corner, of the Northwest''/a, of said Section 22; Thence South 02°24'44" East,
along_the_S.outherly_extensinn_of_thc West_line_of the.NW '/ of said Section 22 for 436,51 feet; Thence
North 86°27'43" East, .departing the previously described line, for 75.86 feet to a point labeled HL-78-C
said point being a point of intersection with the US, Pier -Head Bulkhead line of 1939 as recorded in Piet
Book 74, et Page 3, of the Public Records of Miami -Dade County, Florida, said line also: being the
Northwesterly line of T,LLF..Deed No, 19448 to City of Miami, recorded in Deed Book 3130, at Page 260,
of the Public Records of Miami -Dade County, Florida; Thence along said US, Pier -Head Bulkhead line,
for the following described four (4) courses; 1) Thence South 77°01'17" East, for 669.48 feet to a point.
labeled IlL-78-B; 2) Thence North 74°08'10" East for 526,25 feet to a point labeled'HL-78-A; 3)_Thence
North 43°08'20" East for 250.00 feet to a point labeled HL-76; 4) Thence North 12°08'10" East for 88.25
feet to a. point of intersection with the southerly extension of the outside face of an existing Seawall;
Thence along the outsic'e face of said seawall and its southerly extension for the following described twelve
(12) courses; 1) Thence North 45°44'46" West for 16,33 feet; 2) Thence North 46°50'16" West for 262.72
feet; Thence North 47°06'49" West for 73.59 feet; 3) Thence North 02°02'56" East for 0,70 feet; 4) Thence
North 47°07'52" West for 59.52 feet; 5) Thence North 43°12'49" East for 100.72 feet; 6) Thence South
46°47'08" East for 61,00 feet; 7) Thence North 88°45'00" East for 0,64 feet; 8) Thence South 47°14'37"
East for 41.99 feet; 9)'Thenoe North 61°42'01" East for 21,07 feet; 10) Thence South 30°14'35" East for
2.75 feet; 1.1) Thence North 62°06'03" East for 5,43 feet to the Point of Beginning of the hereinafter
described parcel; 12) Thence continue North. 62°06'03" East for 82.45 feet; Thence North 38°59'48" West,
departing the previously described face of the seawall and numing along the southerly face of an existing
C,B.S, wall and. its southerly extension, for 84.41 feet; Thence North 49°09'51" East along the northerly
end of said C.B.S. wall for 0.43 feet ton .point on the Edge of an existing Asphalt. Pavement; Thence along
the Edge of said A.sphalt Pavement and its Northwesterly extension, for the following described three (3)
courses; 1) Thence North 40°50'09" West for 37.58 feet to a point of curvature of a circular curve concave
to the Southwest; 2) Thence Northwesterly, along the arc of said. curve to the left, having a radius of 31.50
feet and a central angle of 33°37'09" for a distance of 18,48 feet to the point of tangency; 3) Thence North
74°27' 18" West for 13,19 feet to a point on the Northeasterly extension of the edge• of an existing concrete;
Thence along the previously described edge of said concrete and its Northeasterly and Southwesterly
extensions for the following descried five (5) courses; i) Thence South 43°17'10" West for 69.37 feet; 2)
Thence South 48°08'44" East for 26.07 feet; 3) Thence South 41°51'16" West for 10,30 feet; 4) Thence
South 45°40'17" East for 20.02 feet; 5) Thence South 41°51'16" West for 19.89 feet to a point of
intersection with an existing chain link fence; Thence •along said chain link fence and its southerly
extension for the following described. three (3) courses; 1) Thence South.46°34'27" Fast for 48,90 feet; 2)
Thence North 49°46' l 1 East for 14,07 feet; 3) Thence South 49°34'23" East for 26.67 feet to the Point of
Beginning.
Containing 12,356 sq, L or 0.284 acres more or less.
LEGAL DESCRIPTION (PARCEL 6A)
(MARINA SUBMERGED LANDS)
A portion of Tract A of Dinner I ey,.according to the plat thereof as recorded. in plat book 34, at page 2, of
the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range
41 East, Miami -Dade C unty, Florida, more particularly described as follows:
Commence at the Southwest corner, of the Northwest '74, of said Section. 22; Thence South 02°24'44" East,
along the Southerly extension of the West line •of the NW VI of said Section 22, for 4 36..:51 fe.. et . T henc: e
North 86°27'43" East for 75.86 feet to a point of intersection with the U.S. Pier -Head .Bulkhead line of
•1939 as recorded in Plat Book. 74, .at Page 3, of the Public Records of Miami -Dade County, Florida, said
point labeled HL-78-C and said line also being the Northwesterly line of T,I.I.F. Deed No, 19448 to City of
Miami, recorded in Deed Book 3130,. at Page 260, of the Public Records of Miami -Dade County, Florida;
Thence along said U.S. Pier -Head Bulkhead line, for the following described six (6 ) courses;. 1) Thence
South 77°01'17" East, for 669.48 feet to a point labeled. IIL-78-B on the previously named, plat; 2) Thence
North 74°08'10" East. for 526,25 feet to a point labeled HL-78-A on the previously named plat; 3) Thence
North 43°08'20" East for 250.00 feet to a point labeled HL-76 on the previously named plat; 4) Thence
North 12°08'10" East for 88.25 feet; Thence along the outside face of an existing seawall and its Southerly
.extension for the Mowing described. twelve (12 ) courses; 1) Thence North 45°44'46" West for 16.33 feet;
2) Thence North 46°50'16" West for 262.72 feet to the Point of Beginning of the hereinafter described
parcel; 3) Thence North 47°06'49" West for 73,59 feet; 4) Thence North 02°02'56" East for 0.70 feet; 5)
Thence North.47°07'52" West for 59.52 feet; 6) Thence North 43°1.2'49" East for 100.72 feet; 7) Thence
South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0,64 feet; 9) Thence South
47°14'37" East for 41.99 feet; 10) ThenceNorth 61°42'01" East for 21,07 feet; 11) Thence South 30°14'35"
East for 2.75. feet; 12) Thence North 62°06'03" East for 87.88 feet; Thence South 27°53'57" East, departing
the previously described existing seawall, for 60.00 feet; Thence South 62°06'03" West for 118,88 feet;
Thence North 47° 14'37"• West for 26.50 feet; Thence South 42°45'23" West for 71,49 feet to the Point of
.Beginning.
Containing 20,317 sq. ft. or 0.47 acres more or less.
53
LEGAL DESCRIPTION (PARCEL 6B)
(SUBMERGED LANDS ABUTTING
FORMAL RESTAURANT)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of
the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, .Range
41 East, Miami -Dade County, Florida, more particularly described as follows:
Commence at the Soull west corner, of tho Northwest 'A, of said Section 22;, Thence South 02924'44" East,
along the Southerly extension of the West line of the NW ''A of said Section 22, for 436,51 feet; Thence
North 86°27'43" East for 75.86 feet to a point of intersection with the U.S. Pier -Head Bulkhead line of
1939 as recorded in Plat Book 74, at Page '3, of the Public Records of Miami -Dade County, Florida, said
point labeled I-IL-78-C and said line also being the Northwesterly line of TILE Deed No, 19448 to City of
Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida;
Thence along said U.S. Pier -Head Bulkhead line, for the following described four (4) courses; 1) Thence
South 77°01'17" East, for •669.48 feet to a point. labeled I-IL-78-B on the previously named plat; 2) Thence
North 74°08'10" East for 526.25 feet to a point lcibeled HL-78-A on the previously named plat; 3) Thence
North 43908'20" East for 251.00 feet to a point labeled. 1IL-76 on the .previously named plat; 4) Thence
North 12°08'10" East for 88.25 feet; Thence along the outside thee of au existing seawall and its Southerly
extension for the following described two (2) courses; I) Thence North. 45944'46a West for 16.33 feet; 2)
Thence North 46°50'16" West for 262.72 feet; Thence North 42°45'23" East, departing the previously
described existing seawall for 71.49 feet; Thence South 47° 14'37" East for 26.50 feet; Thence North
62°06'03" East for 118.88 feet to the Point of Beginning of the hereinafter described parcel; Thence
continue North 62°06'03" East for 175.75 feet to .the point of intersection with the previously described
U.S. Pier -Head Bulkhead line of 1939; Thence North 21°08'57' East, along the previously described line,
for 146.73 feet; Thence North 76°03'06" West for 119.88 feet to a point of intersection with the outside
face of an existing seawall; Thence along the outside face of said existing seawall for the following
described three (3) courses; 1) Thence South 18°42'46" East for 53,81 feet to the point of curvature of a
circular curve concave to the Northwest; 2) Thence southeasterly, southerly and southwesterly, along the
arc of said curve to the right, having a radius of 75.00 feet and a central angle of 80°48'49" for a distance of
105.78 feet to the point of tangency; 3) Thence South 62°06'03" West for 114.64 feet to the Point of
Beginning.
Containing 20,579 sq. f,, or 0,47 acres. more or less:
54
EXHIBIT "D"
STATE DEP AGREEMENTS
55
EXHIBIT "E"
EXISTING DRY SLIP USE AGREEMENTS
LTO-BRINCLUDED-IIESMRECI EIPT FROM LICF,NSEE1
EXHIBIT "F"
EXISTING PARKING FACILITIES
EXHth!T "G"
GROSS REVENUE REPORT
58
GROSS REVENUE SOURCE
TENANT NAME
GROSS REVENUE REPORT
Gross Revenue
Source
Source
Totals
Month of t_
Total Percentage
Applicable Fee and FI.State
Percentage Percentage Fee State Use Tax Use.Tax Due City
Monthly Fee i?
MONTHLY FEE PLUS PERCENTAGE FEE AMOUNT DUE THIS PERIOD
I hereby certifyto the accuracy of this report, and acknowledge that (Tenant Name) has pald all applicable Florida State
sales and use taxes which are due and payable, whether directly or Ihdlrectly, under FL. Statute 212 to the State of Florida
Department of Revenue*". The City of Mlaml can relyon the above monthly report to be true and accurate as submitted.
SIGNATURE DATE
REMARKS
Tenant shall report Gross Revenues of the preceding month on or before the (enter date) of each month. Any Percentage Rent due
and payable shall be remitted with this report. Make check payable to the City of Mtaml and return this report together
with the proper remittance to:
CITY OF MIAMI
DEPARTMENT OF PUBLIC FACILITIES
444 SW 2ND AVENUE,.3RD FLOOR
ATTENTION: LEASE MANAGER.
MIAMI, FL. 33130
" Gross Revenue Report subject to change andrevislon, Rev. 10/10/13 .
EXHIBIT "H"
PAYMENT AND PERFORMANCE BOND
PERFORMANCE AND PAYMENT BOND •
BY TI-IIS BOND, We , as Principal,
hereinafter called CONTRACTOR, and as.Surety, are hound to the City of
Miami, Florida, hereinafter called CITY, hereinafter referred to as OBLIGEE, in the amount of
Dollars ($ for the payment whereof,
CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors and assigns,
jointly -and severally
WHEREAS, CONTRACTOR has by written agreement entered into a Contract, Bid/Contract
No.: _ ,. awarded this day of
20_ with which Contract•Documents are by reference -incorporated herein and made a part
hereof, and specifically include provision for liquidated damages, and other damages identified and for the
purposes of this Bond are hereafter referred to as the "Contract."
THB CONDITION OF THIS BOND is that if CONTRACTOR:
1. Perlbrms the Contract between CONTRACTOR and l'or eonstnuction of
, the Contract being made a part of this Bond by
reference, at the times and in the manner prescribed in the Contract; and
2. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees, including
appellate proceedings, that CITY sustains as a result of default by CONTRACTOR under the
Contract; and
3. Promptly makes payments to all claimants, as defined by Florida. Statutes 255,05(1) for all
labor, materials .and supplies used directly or indirectly by CONTRACTOR in the performance of
the Contract;
TIHEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SI-IALL
REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING:
. CONDITIONS;
3.1 A claimant except a laborer, who is not in privity with CONTRACTOR, and who
has not received payment for its labor, materials or supplies, shall, within. forty-five (45).days
alter beginning to furnish labor, materials or supplies for the prosecution of the work, furnish
to CONTRACTOR, n notice that he intends to look to the bond tier protection.
3.2 A claimant who is not in privity with CONTRACTOR and who has not received
payment for its labor, materials or supplies, shall, within ninety (90) days after Performance of
the labor or after complete delivery of the materials or supplies, deliver to CONTRACTOR
and to the Surety, written notice of the performance of the labor or delivery of the materials or
supplies nod of the nonpayment.
3.3 No action for the labor, materials or supplies may be instituted against
CONTRACTOR or the Surety unless the notices stated under the preceding conditions (2,1)
and (2.2) have been given, .
3.4 Any action under this Bond must be instituted in aocordance with the longer of the
applicable Notice and Time Limitations provisions prescribed in Section 255.05(2) or Section
95,11, Florida Statutes.
GO
4 Performs the guarantee of all worlc and materials furnished under the Contract for the time
specified in the Contract; then THIS BOND IS VOID. OTHERWISE IT REMAINS IN FULL
FORCE AND EFFECT.
Whenever, CONTRACTOR shall be, and is declared by CITY to be, in default under the
Contract, having performed CITY obligations there under, the Surety may
promptly remedy the default or shall promptly:
4.1 Complete the Project in accordance with the terms.and conditions of the Contract Documents;
or
4.2 Obtain a bid or bids for completing the Project in accordanee with the teens and conditions of
the Contraot Doctments,. and upon determination by Surety of the lowest responsible Bidder,
or if elects, upon determination by and Surety, jointly of the
lowest responsible Bidder, arrange for a contract between such Bidder and and
make available as work progresses (even though there should be a default or a succession of
defaults under the Contract or Contracts of .completion • arranged under this paragraph)
sufficient funds to pay the cost of oompletion less the balance of the Contract Price; but not
exceeding, including other costs and damages for which the Surety' may be liable, hereunder,
the amount set forth in the first paragraph hereof, The terni "balance of the Contract Price" as
used in this paragraph, shall mean the total amount payable by CITY to CONTRACTOR
under the Contract and any amendments thereto, less the amount. properly paid by to
CONTRACTOR.
No right of action shall accrue on this bond to or for the use of any person. or corporation
other than CITY named herein.
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and compliance or noncompliance with any formalities connected with the
Contract or the changes does not affect Surety's obligation under this Bond,
Signed and sealed this day of • , 20 .
WITNESSES/ATTEST: CONTRACTOR:
Contractor)
G1
(Name
of
CORPORATE SEAL)
IN THE PRESENCE OF: INSURANCE COMPANY
Fact)
By:
(Agent and Attorney -in -
(Street)
Address:
(City/State/Zip Code)
Telephone No.;
62
1
EXHIBIT "I"
EXISTING IMPROVEMENTS
EXHIBIT "J"
INSURANCE REQUIREMENTS '
Lessee, at its sole cost, shall obtain and maintain in fu11 force and effect at all times throughout the period
of this Lease, the following insurance coverage:
Commercial General Liability
Limits of Liability _
Bodily Injury and. Property Damage Liability
Each Occurrence
$1,000,000
General Aggregate Limit $2,000,000
Products and Completed Operations $1,000,000
Personal and Advertising Injury $1,000;000
Damage to rented. premises $100,000
Endorsements Required
City of Miami listed as an Additional Insured
Additional insured endorsement required
Conti Tent Liability & Contractual Liability
Premises/Operations Liability
H. Business Automobile Liability
Limits of Liability
Bodily Injury and PropertyDamage Liability
Combined Single Limit
Any Auto/Owned/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident
Endorsetn.ents Required
City of Miami listed as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
$500,000
IV, Employer's Liability
Limits of Liability
Bodily injury caused by an accident, each accident $500,000
Bodily injury caused by disease, each employee $500,000
Bodily injury caused by disease, policy limit $500,000'
V. Liquor Liability
A. Limit, of Liability
Each Occurrence
$1,000,000
VI. Excess Liability/Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
64
Each Occurrence
$3,000,000
Aggregate $3,000,000
City of Miami listed as an additional insured, Umbrella should include liquor liability
VII. Marine Operators Legal Liability
A. Limits of Liability
Each Occurrence
$ 1,000,000
VIII. "All Risk"
Causes of Loss: special form coverage, including theft, windstorm and flood. coverage, and
equipment breakdown coverage,
Vakiation: 100%. replacement cost on building. and. Lessee's business personal property,
including improvements, all its equipment, fixtures and furniture. The Lessee must furnish a
Certificate of Insurance for aflhrding. coverage for the building or premises Business Income
and Extra Expense should. be included preferably issued on an Actual Loss Sustained Basis,
The City's Department of Risk Management, reserves the right to reasonably amend the insurance
requirements by the issuance of a notice in writing to Lessee. The Lessee shall provide any other
insurance or security reasonably required by the City,
The policy or policies,of insurance required shall provide for notice of cancellation or material changes in
accordance to policy provisions. Said notice should be delivered to the City of Miami, I)epartnient of Risk
Management, 444 SW 2 Avenue, 9'r' Floor Mia}ni, Florida 33130,.with copy to City of Miami, Department
of Public Facilities, 444 SW 2 Avenue, 34 Floor, Miami, Florida 33I30, or such other address that may be
designated from time to time.
A current evidence and policy of insurance evidencing the aforesaid required insurance coverage shall be
supplied to. Department of Public Facilities of the City at the commencement of this Lease and a new
evidence and policy shall be supplied at least twenty (20) days prior to the expiration of each such policy.
Insurance policies required above shall be issued by companies authorized to do business under the laws of
the State, with the following qualifications as to management and financial strength; the company or
companies should be rated "A=' as to management, and no less than class "V" as to financial strength, in
accordance with the latest edition of Best's Key Ratint Guide, or the company or companies holds a valid
Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of
the Florida Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its
representatives, which indicates Tess coverage than required, does not constitute a waiver of Lessee's
obligation to fulfill the insurance requirements herein.
In. the event Lessee shall fail to procure and place such. insurance, the City may, but shall. not be obligated
to, procure and place same, in. which event the amount of the premium paid shall be paid by Lessee to the
City as an additional fee upon demand and shall in each instance be.collectible on the first day of the month
or any subsequent month following the date of payment by the City. Lessee's failure to procure insurance
shall in no way release Lessee from its obligations and responsibilities as provided herein,
65
INSURANCE REQUIREMENTS CONSTRUCTION PORTION
MARINA/RESTAURANTS
I. Commercial General Iability
Limits .of Liability
Bodily Injury and Property Damage Liability
Each Occurrence • $1,000,000
General Aggregate Lirnit $2,000,000
Products/Completed Operations $1,000,000
Personal and Advertising Injury $1,000,000
Endorsements Required
City of Miami listed. as an Additional Insured
Employees included. as insured
Independent Contractors Coverage
Contractual Liability
Premises/Operations
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident
Endorsements Required
City of Miami listed. as an Additional Insured
Worker's Compensation
Limits of Liability
Statutory -State ol'Florida
Waiver of subrogation
ITSL&H if Applicable
$1,000,000
IV. Employer's Liability
A. Limits of Liability .
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
V. Owner's & Contractor's Protective
A. Limits of Liability
Each Occurrence
$1,000,000
$1,000,000
Policy Aggregate
City of Miami listed as named insured
VI. Excess Llability/Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
66
Aggregate $5,000,000
City of Miami listed as an additional insured
VII. Payment and Performance Bond $
TBD
VIII.
City of Mia►ni 'Listed, as Obligee
Builder's Risk
Causes of Loss: Special /MI Risk
Valuation: Replacement Cost
Deductible: 5% wind and hail
City listed as loss payee
IX. Protection and Indemnity (If applicable)
$1,000,000
Tones Act included,
GROVE BAY PARING FACILITIES AGREEMENT
BY AND BETWEEN
CITY OF MIAMI, FLORIDA, A MUNICIPAL CORPORATION ORGANIZED UNDER
THE LAWS OF THE STATE OF FLORIDA,
DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI, D/B/A
MIAMI PARIIING AUTHORITY,
AND
GROVE BAY INVESTMENT GROUP, LLC
GROVE BAY PARKING FACILITIES AGREEMENT
This GROVE BAY PARKING FACILITIES AGREEMENT (this "Agreement") is entered
into this Y1-Way of r& 4f 1 3 101(, ('Effective Date"), by and between (i) CITY OF
MIAMI, a municipal corporation drganized under the laws of the State of Florida (the "City") (ii) the
DEPARTMENT OF OFF-STREET PARKING of the City of Miami d/b/a MIAMI PARKING
AUTHORITY, an agency and instrumentality of the City of Miami, Florida ("MPA"), and (iii)
GROVE BAY INVESTMENT GROUP, LLC("Grove Bay" and, together with the MPA and the City,
the "Parties").
RECITALS
A. The City owns the waterfront properties located at 3385 Pan American Drive and
51 Chart House Drive, Miami Florida, as more particularly described in Exhibit "A" (the "Marina
Property") and that certain property at the intersection of South Bayshore Drive and Pan American
Drive as more particularly described in Exhibit "B" (the "Parking Property").
B. Under the terms of Request for Proposals No, 12-13-001 (the "RFP"), the City
sought bids for the lease and redevelopment of .the Marina Property and for the lease of
approximately 40,000 square feet of retail uses (the "Parking Facilities Retail Area") to be located
within the Parking Structure (as defined below),
C. Consistent with the terms of the RFP, the City approved a Lease Agreement (the
"Lease") with Grove Bay for the Marina Property and the Parking Facilities Retail Area,
D. The RFP and .the Lease contemplate that the MPA will construct certain
improvements within the Parking Property to, among other matters, replace existing parking
spaces that served the Dinner Key Auditorium and provide convenient parking for the patrons of
the existing and proposed development contemplated by the Lease.
E. Section 1.1.27 of the Lease contemplates that, with respect to the Parking Property
and the Parking Structure, the City and MPA are deemed interchangeable terms in relation to the
parking obligations; however, the Lease does not fully describe the contemplated relationship
between the City, MPA and Grove Bay with respect thereto.
F. The MPA was created, pursuant to Section 23 of the Charter of the City of Miami,
Florida ("Charter"), to manage off-street parking facilities throughout the City of Miami,
G. The. Florida Interlocal Cooperation Act of 1969, Chapter 163, Part I of the Florida
Statutes ("Act"), permits local governmental units to make the most efficient use of their powers by
enabling them to cooperate with other agencies on a basis of mutual advantage and thereby to provide
services and facilities in a manner and pursuant to forms of governmental organization that will
accord best with the needs of local communities, such as those contemplated herein.
H. Pursuant to Sections 23 and 29-B(c) of the Charter, the City and MPA entered into
that certain Interlocal Agreement, dated (the "Interlocal Agreement"), which Interlocal
Agreement contemplates that MPA will be responsible for the construction of the Parking
Facilities and certain obligations of the City under the Lease, as modified in this Agreement,
I. The Parties desire to enter into this Agreement in order to set forth the agreements
and covenants of the Parties, in connection with the Parking Property and the Parking. Facilities to
be constructed thereon, including, without limitation: (i) the MPA's obligations in connection with
the construction of the Parking Facilities, (ii) the respective obligations of the Parties with respect
to the operation of the Parking Facilities, including, without limitation, the Parking Facilities Retail
Area, (iii) the rights of Grove Bay and its Permittees to use the Parking Facilities; and. (iv) such
other agreements with respect to the Parking Facilities, including, without limitation, the Parking
Facilities Retail .Area, contained herein.
NOW, THEREFORE, in consideration of the mutual promises of the Parties contained
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Any word contained in the text of this Agreement will be
read as the singular or the plural and as the masculine, feminine, or neuter gender as may be
applicable in the particular context. Capitalized terms used but not defined herein will have the
meanings assigned to such terms in the Lease. Notwithstanding the foregoing, the following
capitalized terms shall have the following meanings:
"Approved Architect" shall mean any design professional listed as "Architect of Record"
for the construction of the Parking Facilities. The Approved Architect shall be certified under
481.219, Florida Statutes to practice architecture.
"Building Operating Systems" shallhave the meaning ascribed to such term in Section
2.4(d) of this Agreement.
"Business Day shall mean Monday through Friday, inclusive, other than (i) holidays
recognized by the City of Miami or the federal .government and (ii) days on which the City of
Miami or federal government closes for business as a result of severe inclement weather or a
declared national emergency which is given legal effect in the City of Miami. If any item must be
accomplished or delivered under this Agreement on a day that is not a Business Day; then it shall
be deemed to have been timely accomplished or delivered if accomplished or delivered on the next
following Business Day. Any time period that ends on other than a Business Day shall be deemed
to have been extended to the next Business Day.
"Certificate of Occupancy" shall mean a permanent certificate of occupancy (free of any
conditions) that must be obtained from the appropriate Governmental Authority as a condition to
the lawful occupancy of the applicable Parking Facilities (as such term is defined below), or any
phase, component or portion thereof.
"Certified Area" shall have the meaning ascribed to such term in Section 3.3(f) of this
Agreement.
"City" shall have the meaning ascribed in the preamble of this Agreement.
"City Commission" shall mean the legislative body of the City as designated in the Charter
of the City of Miami,
"City Manager" shall mean the chief executive officer and administrator for the City and
which, unless stated otherwise herein this Agreement, shall be responsible for the primary
administrative decision -making authority for the City.
"Commercially Reasonable Business Efforts" shall mean, that, as and when required, the
Person charged with making such effort is timely and diligently taking, or causing to be taken, in
good faith the steps usually and customarily taken by an experienced real estate lessee or owner,
as applicable, seeking with reasonable due diligence to lawfully achieve the objective to which the
particular effort pertains.
"Design" shall have the meaning ascribed to such term in Section 3.2 of this Agreement.
"Excess Parking Hours" shall mean the amount of free parking time provided by the MPA
to any Qualified Marina User parking within the Parking Structure during any period in which
more than eighty (80) Qualified Marina Users are simultaneously parked within the Parking
Structure, but only with respect to the amount of actual free parking time provided by the MPA to
those Qualified Marina User(s), inexcess of eighty (80), parking within the Parking Structure
duringsuch period.
"Executive Director" shall mean the chief executive officer and administrator for the MPA
and which, unless stated otherwise herein this Agreement, shall be responsible for the primary
administrative decision -making authority for the MPA. Executive Director shall also mean any
duly authorized designee of the Executive Director for minor contractual matters.
"Existing Parking Facilities" shall have the meaning ascribed to such term in Section 4.3
of this Agreement.
"Facility Parking Spaces" shall have the meaning ascribed to such term in Section 3.3 (d)(2)
of this Agreement.
"Final Completion" shall mean that, after Substantial Completion,. the MPA has completed
all punch list items to the reasonable satisfaction of Grove Bay.
"First Class Standards" shall mean a quality that is equal to or in excess of the quality of
first class mixed use parking andretail projects located in the Cities of Miami, Miami Beach, and
Coral Gables. .
"Governmental Requirement" shall mean building, zoning, subdivision, traffic, parking,
land use, plat and street or other public works, environmental, occupancy, health, accessibility for
disabled and other applicable laws, statutes, codes, ordinances, rules, regulations, requirements,
and decrees, of any federal, State .of Florida, Miami -Dade County, Florida, City of Miami, state,
county, municipal or other governmental or quasi -governmental authority or agency pertaining to
any or all .of the Property.
"Grove Bay" shall have the meaning ascribed to such term in the Preamble to this
Agreement.
"Initial Trust Fund Contribution" shall have the meaning ascribed to such term in Section
3.4(a) to this Agreement.
"Interlocal Agreement" shall have the meaning ascribed to such term in the Recitals to this
Agreement.
"Lease" shall have the meaning ascribed to such term in the Recitals to this Agreement.
"Marina Property" shall have the meaning ascribed to such term in the Recitals to this
Agreement.
"MPA" shall have the meaning ascribed to such term in the Preamble to this Agreement.
"MPA Site Spaces" shall have the meaning ascribed to such term in Section 4.2(a) to this
Agreement.
"Parking Facilities" shall mean the Parking Structure, including the Parking Facilities
Retail Area, and those other surface parking spaces to be constructed by the MPA, at its sole cost
and expense, within the Parking Property, each in accordance with the Design.
"Parking Facilities Retail Area" shall have the meaning ascribed to such term in the
Recitals to this Agreement.
"Parking Property" shall have the meaning ascribed to such term in the Recitals to this
Agreement.
"Parking, Structure" shall mean the multi -level parking facility that the MPA contemplates
constructing on the Parking Property in accordance with the Design.
"Parties" shall have the meaning ascribed to such term in the Preamble to this Agreement.
"Permittees" shall mean, with respect to the applicable Party, any tenant, subtenant or other
authorized occupant or riser of any portion of the Parking Facilities and their respective officers,
directors, employees, agents, partners, contractors, representatives, customers, visitors, invitees,
guests, licensees and concessionaires.
"Plans and Specifications" shall mean the plans and specifications for the Parking Facilities
approved by the Parties and based on the Design.
"Property" shall mean, collectively, the Marina Property and the Parking Property.
"Property Directional Signage Regime" shall have the meaning ascribed to such term in
Section 4.4 of this Agreement.
"Qualified Marina User(s)" shall have the meaning ascribed to such term in Section 4.2(b)
of this Agreement.
"Qualified Parker" shall have the meaning ascribed to such term in Section 4.1(a) of this
Agreement. •
"Shared Plumbing Facilities"' shall mean the central plumbing system for the Parking
Structure.
11Substantial Completion" shall mean completion of the Parking. Facilities, including the
Parking Facilities Retail Area, in accordance with the Plans and Specifications and with all
Governmental Requirements (but not including improvements within the Parking Facilities Retail
Area intended for the occupancy of tenants beyond the Grey Shell Standards attached hereto as
Exhibit,"E"), asevidenced by the following: (i) issuance of a certification given by the applicable
Approved Architect in AIA Form G-704 (or a certificate containing language substantially similar
to G-704 that isno less protective of owner than a G-704 certificate), and provided that the only
items of work necessary to complete the Parking Facilities consist of those items thatwillnot
materially interfere with the use and occupancy of the Parking Facilities for their intended purpose
(the punch list items), (ii) issuance of Certificates of Occupancy for the Parking Facilities
(including the Parking Facilities Retail Area), (ill) issuance of a certification by the MPA that
Substantial Completion of the Parldng Facilities (including the Parking Facilities Retail Area) has
occurred, and (iv) confirmation by the City of Miami and Miami -Dade County that the streets and
rights of way, as shown on the Plans. and Specifications, can be used by the public for vehicular
and pedestrian purposes as shown on the Plans and Specifications.
ARTICLE II
LEASE
• Section 2.1 Assignment of Rights. by City. Pursuant to the terms of the Interlocal
Agreement, the City has assigned to MPA, among other matters, its rights and obligation with
respect to the Parking Facilities, including its obligation to construct the Parking Facilities and
provide the parking spaces for use by Grove Bay and its Permittees, each pursuant to the terms
and conditions set forth in the Lease, as amended in this Agreement. The intent of this Agreement
is to clarify the respective rights and obligations of the City, MPA and Grove Bay with respect to
the use by Grove Bay and its Permittees of the Parking Facilities and to delineate the obligations
of the City and MPA to •Grove Bay with respect to the construction and operation of Parking
Facilities. The City and MPA hereby represent to Grove Bay that (a) this Agreement has been
approved by the City and the MPA, (h) the Interlocal Agreement has been approved by the City
and MPA, and (c) no further approvals or consents are required from any other parties to effectuate
the matters set forth in this Agreement and the Interlocal Agreement.
Section 2.2 Status of Lease, The Parties agree that there exists the need to amend
certain commitments and obligations set forth in the Lease to clarify the respective rights of the
Parties as related to the Parking Property and the construction, operation and maintenance of the
Parking Facilities. This Agreement shall be deemed an amendment to the Lease. In the event of
any inconsistency between the terms of this Agreement and the terms of the Lease, then the terms
of this Agreement shall control. Except as specifically modified in this Agreement, all of the terms
and conditions of the Lease shall remain in full force and effect.
Section 2.3 Term, The term of this Agreement shall commence on the Effective
Date, and shall terminate concurrently with the expiration or termination of the Lease, unless sooner
terminated pursuant to any applicable provision of this Agreement. The term of this Agreement
shall include any renewal terms under the Lease (if exercised by Grove Bay or its successors in
interest or authorized assigns) and, individually and collectively shall be referred to as the "Term."
Provided Grove Bay is not in default of this Agreement, if Grove Bay exercises any Renewal
Option under the Lease, then this Agreement will be deemed extended on the same terms and
conditions as provided herein (without the need of any further action by the City, MPA, or Grove
Bay),.
Section 2.4 Alterations.
(a) Grove Bay may, at its expense, make (or permit its Perrnittees to make) any
non-structural alterations, additions, improvements and/or changes to the Parking Facilities Retail
Area without the consent of the City or MPA. For avoidance of doubt, the City has entered into
this Agreement in its proprietary capacity and not in its governmental capacity. Therefore, the
City reserves all rights to review and approve any plans for alterations, additions, improvements
and/or changes to the Parking Facilities (whether structural or non-structural) in its governmental
capacity and pursuant to such laws, ordinances, and regulations adopted pursuant thereto.
(b) Grove Bay may, at its expense, make any structural alterations, additions,
improvements and/or changes to the Parking Facilities Retail Area with the prior consent of the
City (not to be unreasonably withheld, conditioned or delayed by the City). Grove Bay shall be
responsible for applying, paying for, and securing any and all governmental approvals and permits
from all applicable public agencies with respect to such structural alterations, additions;
improvements and/or changes.
(c) Except as may be conditioned by the approval rights set forth in Section
2.4(b), the City and, to the :extent necessary, the MPA agree to sign any permit applications
presented to the City or MPA by Grove Bay (or its successors or assigns) pursued consistent with
the terms of this Agreement and to take all such other actions as are reasonably required to allow
Grove Bay to accomplish any such alterations, additions, improvements and/or changes to the
Parking Facilities Retail Area permitted pursuant to the terms of this Agreement. The City will
reasonably cooperate with, and assist Grove Bay with, the approval of any and all' municipal
permits; provided, however, that the City retains all municipal governmental and planning level
attributes in reviewing such permits and determining are in conformity with applicable laws,
regulations, and conditions.
(d) Any and all improvements constructed within the Parking Facilities Retail
Area by Grove Bay, or at the request of Grove Bay or its Permittees, that constitute permanent
structural alterations, including additions or improvements to the heating, ventilation and cooling
system, or the electrical, the mechanical, plumbing or life safety systems (the "Building Operating
Systems") serving the Parking Facilities Retail Area, shall become the property of the City at the
termination of this Agreement. Notwithstanding anything contained herein to the contrary, (i) all
machinery, fixtures (other than fixtures constituting any portion of the Building Operating
Systems), trade fixtures, furniture, equipment (including without limitation all machinery and
equipment that may be attached to the floor of the Parking Facilities Retail Area), and other
personal property installed or placed in the Parking Facilities Retail Area provided by or at the
expense of Grove Bay or any Permittees, regardless of the manner of attachment to the Parking
Facilities Retail Area or the improvements thereon, shall be and remain the property of Grove Bay
(or of its Permittees), removable by it at its option at any time, including upon the expiration or
earlier termination of this Lease, so long as such removal would not create any structural damage
or permanent alteration, substantial or material damage to structural or exterior components of the
Parking Structure. Grove Bay shall, however promptly repair any damage caused by said removal
from the Parking Facilities Retail Area and promptly restore the Parking Facilities Retail Area to
the same condition as it was prior to such removal or be liable to the City for all repair and costs.
This duty of Grove Bay (as related to the restoration of the Parking Facilities Retail Area for
damages occasioned by such removal prior to the expiration or termination of the Lease) shall
survive the cancellation or expiration of this Agreement and the Lease.
ARTICLE III
DESIGN AND CONSTRUCTION
Section 3.1 Parking Facilities. Pursuant to the Lease (as modified in this
Agreement), the MPA will construct the Parking Facilities within the Property, at its sole cost and
expense (except for the payment by Grove Bay of the Parking Trust Fund Contribution in the
manner set forth in Section 4.10 of the Lease and modified in this Agreement). MPA- shall
construct the Parking Facilities consistent with the Plans and Specifications in a good and
workmanlike manner in accordance with all Governmental Requirements, good industry practice
and First Class Standards. For avoidance of doubt, the obligations of the MPA as related to the
construction of the .Parking Facilities includes the payment of any governmental assessments,
including, but not limited to, any impact fees, permit fees, or other charges, related to the
construction of the Parking Facilities,
Section 3.2 Design of the Parking Facilities. The Parties hereby agree that the
Parking Facilities shall be constructed in accordance with the design attached hereto as Exhibit
"C" (the "Design").
Section. 3.3 Construction of Parking Facilities.
(a) MPA shall be responsible for construction of the Parking Facilities in
accordance with the Design to achieve Final Completion of the Parking Facilities. The MPA, at
its sole cost and expense, will seek and obtain all necessary government approvals and permits for
the construction. of the Parking Facilities, including, but not limited to, approvals necessary to
permit the uses contemplated by this Agreement and the Lease.
(b) MPA shall cause the appropriate insurance described in Exhibit "D" to be
maintained (and shall provide evidence thereof) during construction of the Parking Facilities. The
MPA shall cause the contractor to obtain payment and performance bonds in form, substance and
scope in compliance applicable Section 255.05, Florida Statutes, and all applicable codes and
ordinances.
(c) Except to the extent specifically provided in this Agreement with respect to
those obligations of the MPA related to the Parking Facilities, in no event shall either party have
any liability to the other under this Agreement for construction of the other party's improvements
(d) The Parties further agree that the Parking Facilities shall be constructed and
the Parking Facilities Retail Area delivered to Grove Bay in accordance with the following.
minimum requirements:
(1) the Parking Facilities Retail Area shall be constructed (and delivered
to Grove Bay) substantially in accordance with the "Gray Shell Standards" attached to the Lease
as Exhibit "E";
(2) the Parking Facilities will consist of a three level parking garage
containing not less than 333 parking spaces within the Parking Structure and 80 surface parking
spaces within the Parking Property (collectively, the "Facility Parking Spaces") and approximately
40,000 square feet of first floor retail space, and such other portions of the Parking Facilities set
forth in the Plans and Specifications;
(3) the Parking Facilities shall be completed in accordance with all
Governmental Requirements necessary for issuance by the applicable Governmental Authority of
a Certificate of Occupancy, and delivered to Grove Bay broom -clean and free from debris caused
or created by the MPA or its agents, employees, contractors, and subcontractors and in a manner
so that same shall be accessible and usable by Grove Bay and all applicable Permittees, including,
without limitation, subtenants, and retail customers, for customary loading and parking purposes;
and
(4) the Parking Facilities will be constructed wholly within the
boundaries set forth in the Design.
(e) MPA shall be responsible for promptly repairing any substandard or
defective work affecting the Parking Facilities Retail Area; provided, however, that nothing in this
Agreement shall in any way limit the right of Grove Bay to assert claims resulting from patent or
latent defects in the construction of the Parking Facilities for the period of limitations prescribed
by applicable law. •
(f) The parties acknowledge that the dimensions and usable area of the Parking
Facilities Retail Area have not yet been definitively established because the final design of the
Parking Facilities has not, as of the date hereof, been completed. Upon delivery of possession of
the Parking Facilities Retail Area, the MPA shall specify in writing to Grove Bay the amount of
usable area contained within the Parking Facilities Retail Area. Within forty five (45) days after
taking possession of the Parking Facilities Retail Area, Grove Bay may cause the square footage
of the usable area (enclosed and under roof) of the Parking Facilities Retail Area to be measured
by an independent, professional, certified and licensed architect who will certify to the MPA and
Grove Bay the actual usable area of the Parking Facilities Retail Area (the "Certified Area"). The
measurement of the usable area shall be based on the Business Owners and Managers Association
(BOMA) Standard. If the Certified Area varies from the area specified in the notice provided by
MPA, the usable area of the Parking Facilities Retail Area shall be modified to be the Certified
Area as herein provided, and the 4.1.3 Rent and any other rent, charge or receipt under this Lease
based upon the square footage of the Parking Facilities Retail Area shall beadjusted
proportionately to reflect the Certified Area.
Section 3.4 Parking, Trust Fund Contribution.
(a) Current Status. The Parties acknowledge and agree that Grove Bay deposited
$1,242,500 with the City in compliance with Grove Bay's obligation related to the Initial Parking
Trust Fund Contribution as set forth in Section 4.10 of the Lease (the "Initial Trust Fund
Contribution") and that the Lease provides that the total aggregate contribution (inclusive of the
Initial Trust Fund Contribution) payable by Grove Bay towards the construction of the Parking
Facilities is $4,970,000. However, under Section 4.10 of the Lease, the City is obligated to return
the Parking Trust Fund Contribution to Grove Bay if the MPA has not obtained building permits
for, and commenced construction of, the Parking. Facilities by January 1, 2015. The Parties
acknowledge and accept without objection that the MPA has not obtained building permits for, or
commenced construction of, the Parking Facilities by January 1,.2015. In addition, under Section
4.10 of the Lease, the amount of the Parking Trust Fund Contribution was based on constructing
Parking Facilities with 497 parking spaces and, as such, the reduction of the size of the Parking
Facilities (as set forth in the Design) would entitle Grove Bay to an equitable reduction in the
overall Parking Trust Fund Contribution. Furthermore, as set forth in Section 4.10 of the Lease,
the City agreed to finance Grove Bay's Parking Trust Fund Contribution over 20 years; however,
the City and the MPA have requested that, and Grove Bay has hereby agreed to, pay the full amount
thereof in conjunction with the construction of the Parking Facilities.
(b) Agreed Accommodations. Grove Bay hereby agrees to waive its entitlement to a
return of the Parking Trust Fund Contribution as a result of the matters set forth above and hereby
agrees to waive its entitlement to finance the Parking Trust Fund Contribution as contemplated by.
Section 4.10 of the Lease, which waivers are based on the accommodations set forth in this
Agreement and further conditioned on the following agreement hereby reached between the
Parties: (i) the City will release the Initial Trust Fund Contribution to MPA upon MPA delivering
notice to the City that the MPA has received the applicable building permits to construct the
Parking Facilities, (ii) the Parking Trust Fund Contribution (in the amount modified herein) will
be released or paid to MPA in conjunction with the construction of the Parking Facilities as set
forth in Section 3.6 of this Agreement, (iii) the aggregate amount of the Parking Trust Fund
Contribution shall be a stipulated amount of $4,000,000 (which stipulated sum is based on
multiplying the total number of parking spaces within the Parking Structure by $12,000), (iv)
Grove Bay will deposit the balance of the Parking Trust Fund Contribution (a total of $2,757,500)
in a separate, segregated and limited purpose account in the name of Grove Bay (evidence of which
to be provided to the City and MPA), within thirty (30) days of the MPA delivering notice to Grove
Bay that the MPA has received the applicable building permits to construct the Parking Facilities,
(v) the City will return to Grove Bay the Initial Parking Trust Fund Contribution (and, for
avoidance of doubt, Grove Bay's obligation to make any future contribution related thereto shall
terminate) if the MPA has not obtained building permits for, and commenced construction of, the
Parking Facilities, within twelve (12) months after the Possession Date, (vi) the phrase "Parking
Facilities Conditions," as defined in the Lease, is hereby amended to replace the reference to
"approximately 497 parking spaces" with "approximately 333 parking spaceswithin the parking
garage and 80 surface parking spaces within the property in which the Parking Facilities are
located," (vii) the third sentence of Section 4.1.1 of the Lease is hereby deleted in its entirety and
replaced with the following: "Notwithstanding the foregoing, if the Parking Facilities Conditions
are satisfied, but only after January 1, 2018, then the amount of the Minimum Base Rent shall
remain at $1.9 million and will not increase to $2.0 million as set forth above and, if the Parking
Facilities Conditions are satisfied, but only after June 1, 2018, then the amount of the Minimum
Base Rent shall remain at $1.8 million for the duration of the Lease (each subject to adjustment as
set forth in the following sentence)," and (vii) the City and the MPA will use the Parking Trust
Fund Contribution solely to pay the cost of construction of the Parking Facilities and other
ancillary and incidental purposes related to such construction. Notwithstanding the modification
to the amount of the Parking Trust Fund Contribution set forth herein, Grove Bay hereby
acknowledges and agrees that the total amount of privately funded improvements to the Property,
referred to in the Lease as the "Equity Contribution," will not be less than $17,900,000, For
avoidance of doubt, if the total number of parking spaces within the Parking Structure is less than
the 333 parking spaces set forth in the Design, the total amount of the Parking Trust Fund
Contribution shall be reduced based on the method of calculation set forth above.
Section 3.5 Configuration of the Retail Space. As set forth in Section 3.3(d)(1) of
this Agreement, the MPA will complete the Parking Facilities Retail Area substantially in
accordance with the "Gray Shell Standards" described on Exhibit "E" attached to the Lease. The
Parties hereby agree that the Parking Facilities Retail Area shall be configured in accordance with
the configuration attached hereto as Exhibit "E" (the "Retail Configuration"). At any time prior to
the submission of the Design to the City for approval of the building permit plans, the MPA and
Grove Bay may mutually agree to modifications of the Retail Configuration (without the need to
amend this Agreement). If Grove Bay requests modifications to the Retail Configuration after
submission of the building permit plans for approval by the City, but prior to Substantial
Completion of the Parking Facilities Retail Area, then MPA agrees to work cooperatively with .
Grove Bay to modify the design to accommodate such request; provided, however, that MPA does
not have to agree to any changes that (i) will materially delay the construction or Substantial
Completion of the Parking Facilities or (ii) result in a change order or any additional material costs
to the MPA for which the Grove Bay has not expressly and unconditionally agreed to assume such
additional costs.
. Section 3.6 Progress Payments for onstructien. of Parking Facilities. The MPA will
have the right to receive payments from the Parking Trust Fund Contribution (in the amount as
modified under Section 3.4(b) of this Agreement) pursuant to a draw down schedule to be mutually
agreed to by the MPA and Grove Bay and subject to the following procedures and conditions: (i)
on the first day of each month, the MPA will submit to Grove Bay an application for payment,
certified by the project architect, including a statement from the MPA as to the percentage of work
performed up to the last day of the previous month and the amounts sought therein from the
Parking Trust Fund Contribution for labor and materials fiurnished to the project; (ii) within ten
(10) days after receipt of each monthly application for payment, Grove Bay will pay directly to
the MPA any undisputed amount for which the MPA has made an application for payment, less
any amounts previously paid by Grove Bay and a retainage in the amount of ten percent (10%) of
the amount otherwise payable to the MPA; (iii) Grove Bay's progress payment, occupancy or use
of the Parking Facilities, whether in whole or in part, shall not be deemed an acceptance of any
work not conforming to the requirements set forth in this Agreement; and (iv) upon Final
Completion, Grove Bay shall pay the MPA the entire unpaid balance of the Parking Trust Fund
Contribution. For avoidanceof doubt, Grove Bay's obligation to pay any amounts to the MPA
from the Parking Trust Fund Contribution shall commence after the MPA has completed the
requisite percentage of work pursuant to the draw down schedule entitling the MPA to payments
in excess of the Initial Trust Fund Contribution. The MPA will look solely to the City to receive
funds from the Initial Trust Fund Contribution, which amounts Grove Bay has deposited in escrow
with the City.
ARTICLE IV
OPERATION OF PARTING AREA
Section 4.1 Facility Parking Spaces.
(a) Upon Substantial Completion of the construction of the Parking Facilities, the MPA
will make the Facility Parking Spaces accessible to Grove Bay, for use by Grove Bay and its
Permittees, and their respective employees, patrons and customers, suppliers and contractors (the
"Qualified Parkers") on a non-exclusive basis. The Facility Parking Spaces will be available
during the one (1) hour before through the two (2) hours after the established operating hours of
uses established on the Property by Grove Bay or its Permittees, on a three hundred sixty-five day
per year basis, throughout the Lease Term, at hourly and daily parking rates that will not exceed
the parking rates in effect from time to time for comparable parking facilities in Coconut Grove
(subject to the specific limitationsset forth in Section 4.2 of this Agreement). MPA shall have the
right to collect parking revenues from the parking spaces located within the Parking Property,
subject to the limitations in Section 4.2 of this Agreement.
(b) The Parties acknowledge and agree that the Parking Facilities are being constructed
with the intention that such Parking Facilities will serve to satisfy the parking requirements
imposed by applicable law arising from the contemplated development within the Marina Property
and the Parking Facilities Retail Area and, to the extent any additional parking spaces are available.
after such needs are met, the additional spaces shall be made available to the general public on the
terms and conditions set forth in this Agreement. The MPA and City hereby agree to execute all
required permit applications and to take all such other actions as are reasonably required to
evidence that the parking requirements created in connection with the development of the Parking
Facilities Retail Area and the Marina Property are satisfied by the Parking Facilities, The MPA
and City agree not to take any action that may hinder the ability of the Marina Property or the
Parking Facilities Retail Area to satisfy any parking requirements imposed by applicable laws or
regulations from the parking spaces available at the Parking Facilities.
Section 4.2 MPA Site Spaces.
(a) Grove Bay hereby agrees to permit the MPA to place parking equipment, and
collect all parking revenues from, those certain parking spaces within the Marina Property
specifically identified on attached Exhibit "F" (the "MPA Site Spaces").
(b) In consideration for the use of the MPA Site Spaces and the other accommodations
reached with Grove Bay in this Agreement, the MPA agrees (i) that, through the twentieth
anniversary of this Agreement, the MPA will not charge any parking fee for the first one-half (1/2)
hour that a Qualified Parker's vehicle is parked within the Property; (ii) that, for the term of this
Agreement, the MPA will not charge any parking fee to any person using the Parking Structure
that stores a boat at the Marina Property (the "Qualified Marina User"), subject to the following
restrictions: (x) such parking shall be limitedto one (1) parking space within the Parking Structure
per boat stored by the Qualified Marina User at the Marina Property, (y). the MPA will provide
free parking to a .Qualified Marina User within the Parking Structure for no more than 12 hours
per calendar day and, if such Qualified Marina User exceeds such period, the MPA will directly
charge the Qualified Marina User for any time in excess thereof at the applicable standard parking
rates, and (z) the MPA will charge Grove Bay for any Excess Parking Hours at the applicable
standard parking rate; (iii) that Grove Bay will have the exclusive right to use (without charge) the
parking spaces located on the top floor of the Parking Structure (which area will be specifically
designated for -such exclusive use and segregated pursuant to means mutually agreed to between
the parties); and (iv) that the MPA will be responsible for the entire cost (including maintenance)
of any specialized equipment or signage necessary to meter and designate the MPA Site Spaces;
provided, however, that the number, design, and location of such specialized equipment and
signage shall be subject to the approval of Grove Bay. The City acknowledges that the revenue
derived by the MPA from the MPA Site Spacesshall not be deemed Gross Revenue to Grove Bay.
The means of parking validation within. the Property shall be determined by the MPA in the
exercise of its reasonable discretion; provided, however, that if the validation process selected by
the MPA creates operational issues, beyond a minor inconvenience, for the tenants located within
the Property, then the MPA will in good faith consult with Grove Bay to revise operations and
implement improvements thereto.
(c) For avoidance of doubt, the agreement set forth above regarding the use of the
parking spaces managed by the MPA within the Property are in addition to the provisions in the
Lease, which the MPA hereby agrees and acknowledges to, providing (i) that, for the first year
after Final Completion of the Parking Facilities, the MPA will not charge any parking fee for the
first hour and a half (1.5) that a Qualified Parker's vehicle is parked within the Property (subject
to appropriate validation), and (ii) that, for.the second year after Final Completion of the Parking
Facilities, the MPA will not charge any parking fee for the first hour (1) that a Qualified Parker's
vehicle is parked within the Property (subject to appropriate validation).
Section 4.3 Opening of Parking Facilities. Prior to the issuance of a Certificate of
Occupancy for the Parking Facilities, MPA shall make its reasonable effort to make available to
Grove Bay such parking spaces as necessary to operate and open the development contemplated
for the Marina Property to the public prior to the Final Completion of the Parking Facilities, on the
same basis as the Facility Parking Spaces, within the existing parking garages and parking lots
owned or controlled by MPA or the City of Miami within close proximity to the Property (the
"Existing ParlcingFacilities"). However, MPA's failure to make such parking spaces available shall
not be deemed a default of this Agreement if the MPA has undertaken reasonable efforts to make
available to Grove Bay such Existing Parking Facilities and, under such circumstances, the Parties
hereby agree to work cooperatively .to find solutions that would permit Grove Bay to meet any
applicable parking requirements imposed by applicable law or zoning code or if the failure to make
such parking spaces available are due to public safety and public liability considerations. The
obligations of the MPA set forth in this Section 4.3 are in addition to the obligations of the City
related to the same subject matter as contained in the Lease.
Section 4.4 Signage. MPA shall institute and enforce a uniform signage regime for
the Parking Facilities that will apply to all directional signage (the "Property Directional Signage
Regime"), which the MPA may revise from time to time. Grove Bay and its Permittees shall
have the right to place all other signage on the Parking Property (including, without limitation, any
signage related to the uses established by Grove Bay or its Permittees within Property), which right
shall be subject only to the requirements of applicable laws, and regulations including City and
County Sign Codes, and the requirements set forth in the Lease. Other than signs consistent with
the Property Directional. Signage Regime, the MPA shall not install (or permit any other party to
install) any other signage within the Parking Property.
Section 4.5 Nature of Parking Facilities. The Parking Facilities will serve as Public
(Municipal) Parking Facilities and will be open and accessible to the public during all hours of
operations. Nothing in this Agreement will be construed or interpreted to change their essential
and primary nature as Public (Municipal) Parking Facilities nor will Grove Bay undertake any
actions to undermine their character as such. The Parking Facilities, excluding the Parking
Facilities Retail Area, will be managed, supervised and controlled by MPA.
ARTICLE V
MAINTENANCE OF PARKING FACILITIES
Section 5.1 Maintenance of Parking Facilities.
(a) Following Final Completion of the Parking Facilities, MPA shall keep and
maintain or cause to be kept and maintained the Parking Facilities (including the non-structural
components of the Parking Facilities Retail Area) in a good and safe state of repair and in a clean
and orderly condition, complying with. First Class Standards. All maintenance, monitoring and
repair conducted by the MPA during regular business hours of those businesses operating within
the Parking Facilities Retail Area shall be scheduled, whenever practicable after input from Grove
Bay, to minimize disruption of such businesses, except in an emergency (where telephonic notice
and input shall be given as soon as possible). The City will reimburse the MPA, in the manner set
forth in the Interlocal Agreement, for the cost of maintenance of the non-structural components of
the exterior of the Parking Facilities Retail Area.
(b) The MPA will be responsible for periodic repainting of all exterior surfaces
of the Parking Facilities, maintaining all landscaping within the Parking Property, and maintaining
its equipment, fixtures, furnishings, and other personal property in good condition and repair. All
maintenance shall be at the MPA's sole cost and expense and will be subject to a continuing quality
of maintenance and appearance and physical condition of the Parking Facilities substantially
commensurate with maintenance, health, and safety standards maintained by MPA and secondarily
by Grove Bay.
(c) Following Substantial Completion of the Parking Facilities, MPA shall
maintain insurance as set forth in Section 9,1(b) of the Lease Agreement and, for avoidance of
doubt, such insurance shall cover the MPA Site Spaces and, to the extent applicable, name Grove
Bay as an additional insured in such policies. The Parties acknowledge that the inclusion of this
requirement is not intended to waive or limit the provisions set forth in Section 768.28, Florida
Statutes.
Section 5.2 Covenants of the Parties. The Parties shall comply (as applicable) with
the following covenants during the term of this Agreement:
(a) Except with respect to the rights granted to Grove Bay and its Permittees
under this Agreement, MPA and City shall not be permitted to use any portion of the Parking
Facilities for any use (whether or not such use is of a temporary nature) that may be competitive
to any of the uses existing or contemplated by Grove Bay or its. Permittees within the Property,
provided that nothing herein shall be deemed to prohibit the use of the Parking Facilities as Public
Municipal Parking.
(b) •Grove Bay shall cause the installation of grease traps and, if warranted,
additional similar precautions standard in the trade, of sufficient size and design to catch grease,
fat and oils disposed into the sinks and floor drains with respect to any use of the Parking Facilities
Retail Area warranting the installation of such devices.
(c) Each Party shall not use the plumbing facilities for any purposes other than
that for which they were constructed, or dispose of any foreign substances therein.
(d) All space within the Parking Structure and the equipment contained therein
must at all times be adequately ventilated, filtered and maintained and any odors therefrom must
be exhausted and dispersed in accordance with First Class Standards, •
(e) Each Party shall treat the respective areas of the Parking Property within its
control .as often as necessary to keep it free and clear of all pests, including rodents and insects.
(f) MPA shall operate, repair, maintain, monitor and replace any damaged or
defective, cooling towers, condenser water loop and other HVAC equipment within the Parking
Structure (but only to the extent such equipment was installed by the MPA to service areas.within
the Parking Facilities other than the Parking Facilities Retail Area) to a First Class Standard,
subject to interruption for repair, replacement, emergencies and Force Majeure Events.
(g) MPA shall operate, repair, maintain, monitor and replace the Shared
Plumbing Facilities within the Parking Structure to a First Class Standard; provided, however, the
expense of any breakage, stoppage or damage to the Shared Plumbing Facilities caused, in whole
or in part, by Grove Bay or its Permittees shall be borne by Grove Bay.
(h) Grove Bay shall, or shall cause its subtenants (x) to operate, repair,
maintain, monitor, and replace any damaged or defective, cooling towers, condenser water loop
and other HVAC equipment located within the Parking Structure (but only to the extent such
equipment was installed by Grove Bay or its Permittees to service areas within the Parking
Facilities Retail Area) and (y) to enter into annual maintenance contracts from a reputable heating,
ventilating and air conditioning contractor to maintain and service such equipment.
Section 5.3 Intentionally Deleted,
Section 5.4 Indemnity. Grove Bay shall indemnify, defend and save MPA, City, and
their respective officers and employees, harmless from and against any and all claims, actions,
damages, liability and expense in connection with loss of life, personal injury and/or damage to or
destruction of property arising from or out of any occurrence in, upon or at the Parking Facilities •
Retail Arca, or the occupancy or use by Grove Bay of the Parking Facilities Retail Area, or any
part thereof, or occasioned wholly or in part by any act of omission of Grove Bay, its agents,
contractors, employees, servants, customers, invitees, lessees, representatives, licenses, patrons or
guests, sub -lessees or concessionaires. In case MPA, City, and their respective officers and
employees, shall be made a party to any litigation commenced by or against Grove Bay covered
by this indemnity provision, then Grove Bay shall protect and hold MPA harmless and pay all
costs and attorney's fees incurred by MPA, City, and their respective officers and employees, in
connection with such litigation, and any appeals thereof. Grove Bay shall also pay all costs,
expenses and reasonable attorneys' fees that may be incurred or paid by MPA in enforcing the
covenants and agreements set forth in this Section 5,4 of the Agreement. This Section shall survive
the cancellation or expiration of this Agreement, as applicable.
ARTICLE VI
RESTORATION
Section 6.1 Damage or Destruction of the Parking Facilities.
(a) In the event of damage to or destruction of all or any part of the Parking
Facilities during the Term of this Agreement, MPA shall be obligated to repair and restore the
Parking Facilities to the condition that existed immediately prior to the casualty in substantial
accordance with the Plans and Specifications, using insurance proceeds (and to the extent damages
occur in excess of insurance proceeds, MPA shall pay such excess, including any deductibles).
(b) Any such reconstruction shall be performed in substantial accordance with
the Plans and Specifications for the portion of the Parking Facilities damaged and in a good and
workmanlilce manner, in accordance with all Governmental Requirements and in accordance with
the terms and conditions of this Agreement and the Lease. Upon completion of any such repair
and restoration, any remaining insurance proceeds paid by reason of such damage shall be
distributed to MPA.
(c) In the event of any repair, renovation, or redevelopment of the Parking
Facilities, which interferes with the continuing operation of the Parking Facilities, the MPA and
the City will use its Commercially Reasonable Best Efforts to provide Grove Bay with alternative
locations (including parking on -site, at City Hall, the parking areas at Regatta Park, or in the
adjacent areas) to provide the necessary parking for the continuing operation of the uses.
contemplated or developed by Grove Bay at the Property in such number and on the terms and
conditions applicable to the Facility Parking Spaces, The alternative locations will be subject to
the reasonable approval of the City Manager. During such period of time, the City shall agree to
equitably adjust the 4.1.3 Rent to reimburse Grove Bay for any reasonable rent abatements
required under any subleases entered into by Grove Bay for tenants within the Parking Facilities
Retail Area related to such casualty events.
ARTICLE VII
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 7.1 Representations and Warranties of MPA and City, The MPA and the
City, as applicable, make the following representations,warranties, and covenants, which will
survive the execution of this Agreement:
(a) That the MPA. and City have taken the requisite actions to make this
Agreement binding upon the MPA and City, and the MPA and City, to the best of their opinion,
information and belief, have a valid and binding agreement granting the MPA the authority to
enter into this Agreement and provide to Grove Bay all rights and benefits which are the subject
matter of this Agreement (with exclusion of the rights to the Parking Facilities Retail Area, which
are granted by the City under the Lease).
(b) That there is on the Effective Date and shall be throughout the Term, legal
and physical ingress and egress to the Parking Facilities from a paved public street for vehicular
traffic and perpetual legal and physical ingress and egress for pedestrian traffic,
(c) There are and will be no known or readily discoverable Applicable Laws,
private restrictions or other conditions whichrestrict or prevent the Parking Facilities from being
used and operated as contemplated herein and in the Lease.
(d) All of the representations and warranties of the MPA and City contained in
this Agreement shall continue to be true as of the Effective Date and throughout the Lease Term,
and said representations and warranties shall be deemed to be restated and affirmed by the MPA
and City as of the Effective Date without the necessity of the MPA's or the City's execution of any
document with regard thereto.
Section 7.2 Representations and Warranties of Grove Bay. Grove Bay makes the
following representations, warranties, and covenants, which will survive the execution of this
Agreement: Grove Bay affirms it has taken the requisite actions to make this Agreement binding
upon it and the authority to enter into this Agreement and provide to the City and MPA all rights
and benefits which are the subject matter of this Agreement,
ARTICLE VIII
REMEDIES
Section 8.1 Self -Help Rights. In the event MPA or Grove Bay fails to perform any
of its non -monetary obligations under this Agreement and such failure continues for more than
thirty (30) days after delivery of written notice by the non -defaulting party to the defaulting party
that such obligations have not been performed, or if such obligations are not susceptible to being
-performed within -thirty (-30) days,,rif such party fails -to -commence any such performance within -
the thirty (30)-day period and prosecute the same diligently to completion, then the non -defaulting
party shall have the right but not the obligation to perform such obligations on behalf of and for
the account of the defaulting party. The non -defaulting party shall complete any repair, restoration
or other work it undertakes pursuant to this Section 8.1 in a good and workmanlike manner in
accordance with all Governmental Requirements, good industry practice and First Class Standards.
The non -defaulting party is hereby granted an easement across the defaulting party's portion of the
Property to effect its self-help rights hereunder, provided that exercise of its rights hereunder shall
be carried out so as to minimize disruption with the operations on the defaulting party's portion of
the Property and shall not unreasonably interfere with, delay or impair the ability of the defaulting
party or its successor to complete improvements on its portion Property or cause a breach of the
peace . If a party exercises its self-help rights under this Section 8.1 following a breach by the
other party, the defaulting party shall reimburse the non -defaulting party for an amount equal to
all documented labor and materials direct costs actually incurred, verified and expended and
substantiated by the non -defaulting party in connection with such exercise of its self-help rights
under this Section 8.1 the authority to enter into this Agreement and provide. to Grove Bay all
rights and benefits which are the subject matter of this. The self-help rights shall not be used to
commit a breach of the peace and may only be exercised in accordance with Florida
Landlord/Tenant Law.
Section 8.2 Other Remedies.
MPA, the City, and Grove Bay shall each have such other remedies available at law or in
equity by virtue of the laws of the State of Florida for breach by the other hereunder.
Section 8.3 Limitation of Liability.
• Notwithstanding anything to the contrary contained in this Agreement, each party
specifically agrees that the liability of each other party hereunder shall be limited to the right, title
and interest of such party in and to its portion of the Property, the improvements and any other
land or improvements on its portion of the Property. - -
ARTICLE IX
EASEMENTS
Section 9.1 General.
(a) This Agreement shall allow and provide for easements necessary and
required for the purposes expressly set forth in the Lease and for the benefit of the officers,
employees,. patrons_,._licensees_and.guests_.ofthe_C.ity.,-the-MRA,-Grove-Bay and-its-P-ermittees. The—
grant of an easement by a grantor shall bind and burden its Property which shall, for the purpose
of this Agreement, be deemed to be the- servient tenement (but where only a portion of the Property
is bound and burdened by the easement, only that portion. shall be deemed to be the sentient
tenement), and shall survive the total or partial destruction of the subject matter of the easement
and shall run with the land.
(b) The grant of an easement to a grantee shall benefit its Property which shall,
for the purpose of this Agreement, be deemed to be the dominant tenement (but where only a
portion of the Property is so benefited, only that portion, shall be deemed to be the dominant
tenement).
(c) Unless expressly provided otherwise, all easements granted herein are non-
exclusive and in common with the Party of the servient tenement, and irrevocable for the term
herein provided for any such easement, and for the benefit of the Party of the dominant tenement.
Any easement provided or reserved under this Agreement which is .designated as non-exclusive
shall permit the Party of the servient tenement to utilize such easement areas for its own purposes
and/or grant other easements or interests therein which are not inconsistent with that of the
dominant tenement hereunder or with this Agreement.
(d) The grant of an easement shall run to the benefit of the Party that is the
grantee of such easement, its successors and assigns; and the grantee of such easement, its
successors and assigns as Party of the Property so benefited by such easement shall have th.e right
to allow its Permittees to use such easement subject to the limitations in this Agreement.
(e) All easementsgranted hereunder shall be utilized in compliance with all
Permits and other Governmental Requirements and in accordance with First Class Standards.
(f) All easements granted hereunder shall exist by virtue of this Agreement,
without the necessity of confirmation by any additional document. No easement may be terminated
except by written instrument signed by the Party that is a grantee of such easement provided the
consent of that party will not be unreasonably refused, delayed, conditioned or denied. Upon the
termination of any easement (in whole or in part) or its release (in whole or in part) in respect of
all or any part of any Property, the same shall be deemed to have been terminated or released
without the necessity of confirmation by any other document. However, upon the request of the
Grove Bay or the MPA, as the case may be, and at such requesting Party's expense, such Party will
sign and acknowledge a document memorializing the existence (including the location and any
conditions), the termination (in whole or in part), or the release (in whole or in part), as the case
may be, of any easement, if the form and substance of the document is reasonably acceptable to
such Party.
Section 9.2 Grant of Easements. The Parties hereby grant, to its respective tenants,
customers, invitees, and licensees subject to such reasonable limitations as shall be imposed by the
owner and holder thereof, and reserves unto itself and its tenants, customers, invitees, and licensees,
the non-exclusive right, subject and subordinate at all times to the rights of the City and the general
public to the following:
other parcels;
(a) easements in the common area of each parcel for ingress to and egress from
(b) easements in the common area of each parcel for the passage of vehicles;
(c) easements in the common area of each parcel for the passage and
accommodation of pedestrians;
(d) easements for access roads across the common area of each parcel to public
and private roadways;
(e) easements for the installation, use, operation, maintenance, repair,
replacement, relocation and removal of utility facilities in appropriate areas in each such parcel;
(f) easements on each such parcel for construction of buildings and
improvements in favor of each such other parcel; '
(g) easements upon each such parcel in favor of each adjoining parcel for the
installation, use, maintenance, repair, replacement and removal of common construction
improvements such as footings, supports and foundations;
(h) easements on each such parcel for building overhangs, other overhangs and
projections encroaching upon such parcel from adjoining parcel such as, by way of example,
marquees, canopies, lights, lighting devices, awnings, wing walls and the like, if necessary;
(i)
6)
cuts;
appropriate reservation of rights to grant easements to utility companies;
appropriate reservation of rights to dedicate road rights -of -way and curb
(k) easements in favor of each such parcel for pedestrian and vehicular traffic
over dedicated private access roads; and
(1) easements in favor of Grove Bay and its Permittees to use the covered areas
(breezeways and walkways) adjacent to the Parking Facilities Retail Area (except such areasas
necessary to permit pedestrian movement through the Parking Structure) for .outdoor seating,
special events, and other ancillary uses related to the business conducted therein,
Section 9.3 No Dedication of Easements and Benefit to Permittees.
Nothing contained in this Agreement, including the grant of any or all easements herein
provided, shall be deemed to constitute a dedication of any Property or any portion or portions
thereof to any governmental body or agency or to the general public, or construed to create any
rights in or for the benefit of -any Persons other than the City of Miami, MPA and Grove Bay, it
being the intent that the City of Miami, MPA and the Grove Bay by this Agreement shall be strictly
limited to and for the purposes herein expressed. Either such Party may, however, extend the
benefits of the easements created b_y_this_Agreement-to-its-P-er-mittees-subject to -the -limitations -in
this Agreement provided such Permittees shall observe and obey applicable rules and comply with.
this Agreement.. No Permittees, other than heirs, successors, and assigns of the applicable Party
that is the grantee of an easement, shall acquire any rights in, to or under any easement.
Section 9.4 Utility Easements.
Nothing contained in this Agreement shall be deemed to prohibit or limit the right of MPA
and Grove B.ay to (i) grant easements to any governmental unit, public body and/or utility company
for the construction,installation, operation, maintenance, monitoring, repair, relocation,
modification, extension or alteration of sanitary sewers, storm drainage systems, fire protection
installations, gas, water, electric power and lighting and telephone lines, mains and trunks in, under
or across its Property, or (ii) transfer or assign to any public body and/or utility company any of
the easements on its Property withrespect to utilities granted to the other Party hereunder, without
the necessity of the payment of any compensation to the grantee of such easement.
Section 9.5 Rights Temporarily to Close and to Enter in Emergencies.
MPA and Grove Bay each reserves the right to close off its portion of the Property or any
improvements on its portion of the Property temporarily for (a) such reasonable periods of time as
may be legally necessary to avoid the possibility of dedicating the same for public use or to prevent
the acquisition or creation of prescriptive rights by anyone; and (b) such reasonable periods of time
as may be reasonably necessary for cleaning, repair, alteration, improvement or maintenance or as
required for emergencies provided that this shall not change the character of the Parking Facilities
as an area for public parking. Furthermore, MPA and Grove Bay each reserves the right to enter
the respective Party's Property, as applicable, in case of emergency in order to prevent or minimize
damage or destruction to personal property, the improvements on such Party's portion of the
Property or to preserve and protect the health and safety of persons, as such MPA and Grove Bay,
as applicable, shall deem necessary or desirable in such emergency situation. In exercising such
right, MPA and Grove Bay each will use reasonable efforts under the circumstances not to interfere
with the use of such easement area (or the operations of the. Building's structural, mechanical,
electrical, or plumbing systems (including telecommunication systems, data systems and life -
safety systems) by the grantee thereof.
Section 9.6 Additional Easements.
To the extent the Plans and Specifications provide for additional conduits, lines, wires,
equipment, mains, pipes, cables or other facilities on. or running through one Property but serving
the other and such facilities are actually constructed as part of the Parking Facilities, each of MPA
and Grove Bay hereby grants to the other easements to the extent required to install, lay, maintain,
monitor, repair, replace and use the same, subject to the terms and conditions of this Agreement.
If it becomes clear that additional easements or rights of use or rights of way are necessary or
desirable to effectuate the purposes of this Agreement to allow efficient operations to. a First Class
Standard on the Parking Facilities, regardless of whether such proposed additional easements are
provided for in the Plans and Specifications, each Party, as owner of the servient tenement, hereby
agrees to grant to each other Party, as owner of the dominant tenement, such additional easements
as are necessary and desirable. No Party shall be required to grant any such proposed additional
easements -to -the extent that--such-easement-woulthrateriall civerselyrnter erf—e with —the use (or
contemplated use) and occupancy of any portion of the Property or materially affect access to or
operation of any portion of the improvements existing or contemplated to exist on the Property. At
the request of any Party, the other Party shall execute document(s) to confirm such additional
easements and shall record such document(s) against the affected Property(s) in the public records
of Miami -Dade County, Florida. Any additional easements granted pursuant to this Section 9.6
shall be non-exclusive unless otherwise agreed by the applicable Party(s)..
Section 9.7 Term of Easements.
Unless specifically otherwise provided in this Agreement, the easements granted in this
Agreement shall automatically expire on the termination of this Agreement :,without the necessity
of further action.
ARTICLE X
NOTICES
Section 10,1 Notice.
Any notice, communication, request, reply or advice or duplicate thereof in this Agreement
provided or permitted to be given, made or accepted by either party to any person must be in
writing and may be given or be served by e-mail, or by personal delivery, or by using a recognized
overnight delivery service and shall be sent or delivered to the e-mail or physical address for each
party set forth below, or such other addresses as may be designated by ten (10) days' prior notice.
If to the MPA at:
Chief Executive Officer
Miami Parking Authority
40 NW 3rd Street, Suite 1103
Miami, Florida, 33128
With a copy to:
City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9t1' Floor
Miami, Florida 33130
If to Grove Bay at:
Grove Bay Investment Group,LLC
2640 South Bayshore Drive
Miami, Florida. 33130
With a copy to:
Holland & Knight LLP
Attn: Richard A. Perez
701 Brickell Avenue, Suite 3000
Miami, Florida 33131
City of Miami
Director Dept. of Real Estate
and Asset Management
444 SW 2nd Avenue, Suite 325
Miami, Florida 33130
If to the City at:
City Manager
444 SW 2nd Avenue, 10th Floor
Miami, Fl. 33130
Notices shall be deemed to be effective (A) if by e-mail at the time and on the date when sent
(provided that the sender of such communication shall also deliver a duplicate copy thereof by
sending within one (1) Business Day via mail, overnight delivery or courier, to the appropriate
parties), or (B) if personally delivered, as shown on a receipt therefor (which shall include delivery
by an internationally recognized delivery service) on the date of delivery or on the date delivery
was refused by the addressee.
ARTICLE XI
ASSIGNMENT, SUBLEASES, AND TRANSFER
Section 11.1 Assignments, Subleases, and Transfers.
(a) Grove Bay shall not require the approval of either the MPA or the City in order to
sublease any portion of the Parking Facilities Retail Area to a Permittee if such use constitutes a
Permitted Use under the terms of the Lease Agreement. Any transfer or conveyance of the interests
of Grove Bay in this Agreement (other than a sublease as permitted in the preceding sentence)
shall require approval of the City Manager and the Executive Director, which approvalmay not
be unreasonable withheld, delayed or conditioned; provided, however, that any transfer or
conveyance of this Agreement in conjunction with an Assignment of the Lease approved in
accordance with the procedures set forth therein shall be deemed an approval of the transfer or
conveyance of this Agreement. A transfer or conveyance by Grove Bay of its interest pursuant to
any approved transfer or conveyance shall be deemed to release Grove Bay from all further liability
arising under this Agreement in respect of any period after the date of such transfer or conveyance.
(b) If any portion of the Property is, directly or indirectly, sold or otherwise transferred,
such transferees shall be subject to this Agreement and the transferees shall be bound by its
transferor's obligations and enjoy its transferor's benefits hereunder as fully as if such transferees
were originally parties hereto, and such obligations and benefits shall run with and be binding upon
the Property and be binding upon all subsequent owners thereof, including any easements, claims
or liens arising under this Agreement against a prior Party of a Property which shall continue as to
any transferee of such Property. For avoidance of doubt, if the MPA dissolves, or for any other
reason the rights and obligations_ of the MPA are transferred to the City or any other instrumentality
of the City, then the references in this Agreement to MPA shall be deemed, for all purposes, to be
references to the City or any successor entity to the MPA.
Section 11,2 Priority of Agreement.
The parities all expressly understand, acknowledge and agree that municipal real property
of the City or of MPA. cannot be mortgaged, lien or pledge and that any such lien, encumbrance ,
is disallowed under Florida law and expressly disallowed by the City and MPA. This Agreement
and the rights, interests, liens and easements created hereunder shalLbe pri.or_and_superior to any
Mortgage or other lien upon or against any interest in Party's Property other than such liens as by
law have priority over the lien and operation of this Agreement.
ARTICLE XLI
MISCELLANEOUS
Section 12.1 Entire Agreement. This Agreement, the Exhibits attached hereto and
forming a part hereof as if fully set forth herein, and the Lease constitute all of the covenants,
promises, agreements, conditions and understandings between the parties concerning the Parking
Facilities and there are no covenants, promises, conditions or understandings, either oral or written,
between them other than as are herein and therein set forth. No party nor its respective agents have
made nor shall be bound to any representations with respect to the Parking Facilities except as
herein expressly set forth, and all representations, either oral or written, shall be deemed to be
merged into this Agreement. No course of prior or future dealings between the parties or their
officers, employees, agents or affiliates shall be relevant or admissible to supplement, explain or
vary any of the terms of this Agreement. 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 Agreement. This
Agreement has been negotiated "at arm's length" by and between the parties, each having the
opportunity to be represented by legal counsel of its choice and to negotiate the form and substance
of this Agreement, and therefore in construing the provisions of this Agreement no party will be
deemed disproportionately responsible for draftsmanship.
Section 12.2 Written Amendments. Except as herein otherwise provided, the Parties
may only amend, alter, change, or modify this Agreement by execution of written instrument
signed by all of the Parties.
Section 12.3 Independent Parties. It is understood and agreed by the parties hereto
that this Agreement does not create a fiduciary or other relationship between the parties, other than
contracting parties. The parties are and shall be independent contracting parties and nothing in
this Agreement is intended to make any party a general or special.agent, joint venturer, partner or
employee of any other for any purpose.
Section 12.4 Captions and Section Numbers. The captions, section numbers, and
article numbers appearing in this Agreement are inserted only as a matter of convenience and in
no way define, limit, construe, or describe the scope or intent of such sections or articles of this
Agreement nor in any way affect this Agreement.
Section 12.5 Partial Invalidity. If any term, covenant or condition of this Agreement
or the application thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
Section 12.6 Waives. Failure on the part of any party to complain of any action or
non -action -on -the part -of the -other no-matter-how-long-the-same-ma-y-eontinue,-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 any 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 any party requiring such consent or approval shall
not be deemed to waive or render unnecessary such consent or approval to or of any subsequent
similar act by such party.
Section 12.7 Time is of the Essence, Time is of' the essence with respect to the
performance of every provision of this Agreement in which time of performance is a factor.
Section 12.8 Governing Law. It is the intent of the parties hereto that all questions
with respect to the construction of the Agreement and the rights and the liabilities of the parties
hereto shall be determined in accordance with the laws of Florida and that all disputes arising
hereunder shall be heard and decided in Miami -Dade County, Florida. The parties shall bear their
own attorney's fees.
Section 12.9 Arbitration. The parties hereby agree that, subject to the consent of the
City Manager, Executive Director, and Grove Bay, which consent may be withheld by any party
for any reason, any dispute, disagreement or controversy arising under this Agreement, or with
respect to the interpretation or enforcement of this Agreement may be settled by arbitration
pursuant to the procedures set forth in Section 16.6 of the Lease. For avoidance doubt, the
reference to "each party" or any reference' to "Lessor and/or Lessee" in Section 16.6 of the Lease
shall be deemed a reference to the MPA, City and Grove Bay.
Section 12.10 Waiver of Jury Trial. The parties 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 Agreement, the
relationship of the parties hereunder, Grove Bay's use or occupancy of the Parking Facilities and/or
any claim of injury or damage, In an effort to expedite the conclusion of any litigation the parties
agree not to file permissive counterclaims in any actions arising under this Agreement.
Section 12.11 Quiet Enjoyment. Upon the observance by the Grove Bay hereunder of
all the teams, provisions, covenants and conditions imposed upon the Grove Bay, the MPA
covenants to the Grove Bay that the Grove Bay shall peaceably and quietly hold, occupy and enjoy
the Parking Facilities Retail Area for the Lease Term without any interruption, disturbance or
hindrance by MPA, or their respective successors and assigns, or by persons claiming by, through
or under the MPA for the Parking Facilities Retail Area, or by persons with title superior to the
MPA, or their respective successors and assigns
Section 12.12 Recording of a Memorandum of this Agreement. A. Memorandum of
This Agreement briefly summarizing its terms shall be recorded in the public records of Miami -
Dade County, Florida.
Section 12.13 Number; Gender. Whenever required by the context, the singular shall
include the plural, the neuter gender shall include the male gender ancLfemale_gender, and vice
versa.
Section 12.14 Counterparts. This Agreement may be executed in separate counterpart
copies, all of which counterparts shall have the same force and effect as if all parties hereto had
executed a single copy of this Agreement.
Section 12.15 Schedules and Exhibits. All Exhibits referenced in this Agreement are
incorporated by this reference as if fully set forth in this Agreement.
Section 12,16 Including. The word "including" and variations thereof, shall mean
"including without limitation."
Section 12.17 No. Construction Against Drafter. This Agreement has been negotiated
and prepared by the parties and their respective attorneys and should any provision of this
Agreement require judicial interpretation,the court interpreting or construing such provision shall
not apply the rule of construction that a document is to be construed more strictly against one party.
Section 12.18 Rights Not for Benefit of Third Parties. In no event and under no
circumstances whatsoever shall the rights herein granted or to be granted in the future pursuant to
this Agreement, to or for the benefit of any party be deemed to be for the benefit of the public. No
individual or entity that is not a signatory to this Agreement (other than successors and permitted
assigns of the signatories of this Agreement) shall have any rights or privileges under or arising
out of this Agreement, nor shall any person or entity that is not a signatory to this Agreement
otherwise be deemed a third party beneficiary of this Agreement.
Section 12.19 Agents and Representatives. No Person other than the parties to this
Agreement, and the permitted assignees of such parties, shall have any liability or obligation under
this Agreement.
Section 12.20 Further Assurances. Each of the parties to this Agreement shall execute
such further assurances as any other party may reasonably require to confirm and perfect the
transaction described hi this Agreement.
Section 12.21 Rights and Remedies Cumulative. The rights and remedies of the parties
under this Agreement, whether provided by law, in equity, or by this Agreement, .shall be
cumulative, and the exercise by any party of any one or more of such remedies shall not preclude
the exercise of any other remedies for the same such default or breach,
Section 12.22 Estoppels. The parties hereto shall, from time to time, within fifteen (15)
Business Days of request in writing of any other party, without additional consideration, execute
and deliver an estoppel certificate consisting of statements, if true (and if not true, setting forth the
true state of facts as the party delivering the estoppel certificate views them), that (i) this
Agreement is in full force and effect; (ii) this Agreement has not been modified or amended (or if
it has,a list of the amendments); (iii) the party requesting the estoppel certificate is not then in
default; (iv) the parties have fully performed all of their respective obligations thereunder; and (v)
such other statements as reasonably may be required by any party or any other appropriate party
_sucl as_their-respective-partnens—inverter-s-and lenders—Fai-l-iwe-to respond to -an -estoppel -request
within fifteen (15) Business Days following the date of request shall constitute certification as true
and correct, in all material respects the statements contained therein.
Section 12.23 Covenants Run With the Land. It is intended that the covenants, grants,
easements, agreements, promises and duties of each party as set forth in this Agreement, shall be
construed as covenantsand not as conditions, and that, to the fullest extent legally possible, all
such covenants shall run with and be enforceable against both the covenantor and the affected
Property or constitute equitable servitudes between the Property of the respective covenantor, as
the servient tenement, and the Property of the respective covenantee, as the dominant tenement.
Unless the content indicates otherwise, every covenant, easement, agreement and promise of each
party as set forth in this Agreement shall be deemed a covenant, easement, agreement and promise
made for the joint and several benefit of the other parties and every duty of each party as set forth
in this Agreement shall be deemed to run to and for the joint and several benefit of the other parties
Section 12.24 Licenses and Permits. Accept as provided for herein, Grove Bay shall, at
its sole cost and expense, apply for, secure and obtain any and all licenses, approvals,consents,.
and permits necessary in connection with any tenant's use and occupancy of the Parking Facilities
Retail Area.
Section 12,25 Compliance with Laws. Grove Bay accepts this Agreement and hereby
acknowledges that its compliance with all 'applicable laws, ordinances and codes of federal, state
and local governments, as they may apply to this Agreement..
[signature page follows]
INWITNESSWHEREOF, the parties have executed this Grove Bay Parking Facilities
Agreement, or have caused the same to be executed, as of the date and year first above written.
ATTEST:.
ATTEST:
C.-�..
E7SiCk -S"
ATTEST;
BY:
Todd B, Hannon
City Clerk
APPR
CO
(Affix City Seal)
Victoria Men
ity Attorr�cy/4- 14(eb
0 FORM AND
GROVE BAY:
GROVE BAY INVESTMENT GROUP LLC, a
limited liability company of the State of Florida
By:
Title:
MIAMI PARKING AUTHORITY,
an agency and instrumentality of the
City of Miami, Florida
BY:
Arthur o riega
Chief Ex'cutive Officer
CITY OF MIAMI, a municipal
corporation of the State o f Florida
Daniel J. Alf
City Manager
APPROV
REQ
B
Anne-Mar'e Sh. pe
_Risk Ma . eme t Director
CE
Exhibit "A"
Marina Property
LEGAL DESCRIPTION (PARCEL I)
(MARINA/BOATYARD 'UPLANDS)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, to page 2, or
the Public: Records of Miami Dade County, Florida and a portion of Section 22, Township 54 Youth, Range
41 East, Miami -Dade County, Florida, more particularly described as follows:
Commence at the Southwest corner, of the Northwest 1/4, of said Section 22; Thence South 02°24'44" East,
along the Southerly extension of the West line of the NW 1/4 of said Section 22, for 436,51 feet; Thence
North 86°27'43" East For75.86 feet to a psvntlaheled HT 18-Csaid_point_being_a-point-of' intersection-wit:h
the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, ot'the Public Records el'
Miami -Dade County, Florida, said line aitro being the Northwesterly line ofT.I.I.F. Deed No. 19448 to City
of Mia►ni, recorded in Deed Book 31.30, at Page 260, of the Public Records of Miami -Dade County,
Florida; Thence along l aid U.S. Pier -Head Bulkhead. line, for the following described four (4) courses; 1)
Thence. South 77°01'17" East, for 669.48 feet to a point labeled HL-78-B; 2) Thence North 74°08' 10" East
for 526,25 Net to a point labeled .HL-78-A; 3) Thence North 43°08'20" East 'for 250.00 feet; 4) Thence
North 12°08'10" East fbr 88.25 feet; Thence North 45°44'46" West, departing the previously described line,
for 3.75 feet to a point on the outside nee of an existing Seawall; Thence along the outside Not of said
seawall tor the following described twelve (12 ) courses; 1) Thence continue North 45°44'46" West for
12.58 feet; 2) Thence North 46°50' 1.6" West for 262,72 feet to the Point of Beginnin; of the hcreinaticr
described parcel; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56 last for 0.70
feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'49" East ftw 100.72 feet; 7)
Thence South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0,64 feet; 9) Thence South
47'1417" East for 41.99 feet; 10) 'Thence North 61 °42'01"Ernst for 21.07 feet; 11) Thence South 30°14'35"
East fbr 2.75 feet; 12) 'Thence North 62°06'03" East for 5,43 feet to a point of intersection with the
Southerly extension of an existing chain link fence; Thence along said chain link fence and its southerly
extension for the fbllowing described three (3) courses; 1) Thence North 49°34'23" West for 26,67 feet; 2)
'thence South 49°46'11" West for 14.07 Net; 3) Thence North 46°34'27" West for 48,90 feet to a point of
intersection with the Southeasterly extension of the edge of an existing concrete slab; Thence along the
previously described edge of concrete and its Southwesterly and Northerly extensions for the Billowing
descried five (5) courses; 1.) Thence North 41°51'16" East for 19.89 feet; 2) Thence North 45°40'17" West
for 20.02 feet; 3) Thence North 41°51'16" East for I0,30 feet; 4) Thence North 48°08'44" West for 26,07
feet; 5)Thence North 43°17'10" East for 63.60 Net to a point of intersection with the Boundary line ot'the
tract of land described under Exhibit A in that certain Lease Agreement recorded in Official Records Book
9916, at Page 1110, of the Public Records of Miami Dade County, Florida; Thence along the previously
described Boundary line, and its Northerly extension, for the following described two (2) courses; 1)
Thence North 76° 17'34" West for 63.38 Net; 2) Thence North 12°55'28" East for 138.99 feet to a point of
intersection with the i .ack of an existing concrete sidewalk; Thence along the hark of said concrete
sidewalk, for the lbl.lowing described twenty one (21) courses; l) Thence North 47°44'58" West lbr 12.22
Net to a point of curvature of a circular curve concave to the Northeast; 2) Thence Northwesterly, along the
arc of said curve to the right, having a radius of 98.00' feet and a central angle of 16°31'40".for a distance of
28.27 feet to the point of tangency; 3) Thence North 31°13' 18" West for 14,4E Net to a point of curvature
of a circular curve concave to the Southwest; 4) Thence Northwesterly, along the arc of said curve to the
left, having a radius of 100.00 feet ancl.a central angle of L 1°38'35" for a distance of 20.32 feet to a point of
tangency; 5) Thence North 42°5 (153" West for 5. l0 feet to a point of curvature of a circular curve concave
to the Southwest; 6) Thence Northwesterly, along (he arc of said curve to the left, having a radius of 33.00
feet and a central angle of 33°27'08" for a distance of 19.27 feet to the point of tangency; 7) Thence North
76°19'O1" West for 64.42 Net; 8) Thence. South 13°57'56" West for 1.47 feet; 9) Thence North 75°50'29"
West for 25.93 feet; 10) Thence North 45°02'51" West for 18.31 feet to a point of eurvature of a circular
curve concave to the Southwest; 11) Thence Northwesterly, along the are of said curve to the left, having a
radius of 64.79 feet and a central angle of 11°21'21" for a distance of 12.84 feet to the point of tangency;
12) Thence North 56°24'12" West for 5.41 Net to a point o1'curvature of a circular curve concave to the
Northeast; 1 3) Thenec Northwesterly, along the arc of said curve to the right, having a radius ol'23..50 fvet
and a central angle of 30°58'59" fora distance of 12,71 feet to the point of tangency; 14) Thence North
25°25'13" West for 6.96 feet to a point of curvature of a circular curve concave to the South: 15) Thence
Northwesterly, along the arc of said curve to the left, having a radius of 3,00 feet and a central angle of
51 °39' 10" for a distance of 2,70 t'eet to the point of tangency; 16) Thence North 77°04'23" West for 125,67
feet to a point of curvature of a circular curve concave to the South; 17) Thence Northwesterly, Westerly
and Southwesterly along the arc or said curve to the left, having a radius of 10,15 feet and a central angle of
14°26'49" for a distance of 2,56 feet to the point of tangency; 18) Thence South 88°28'48" West for 17.55
Peet; 19) Thence North 76°52'13" West for 28,42 feet; 20) Thence South 76°07'58" West for 40.18 feet to a
paint ofcurvature ofa circular Cute concave to the Northwest; 21) Thence Southwesterly, along the arc of
said curve to the right, having a radius of 43.33 feet and a central angle of 09°48'56" for a distance of 7
feet to a point of intersection with a line parallel with and 95.00 feet Northwesterly of, as measured at right
angles, the Northwesterly outside face of an existing building; Thence South 13° 01'32" West, along. the
previously described line, for 135.78 feet; Thence South 12 46'52" West, departing the previously
• described line, tier 37.38 feet to a point of intersection with a line parallel with and 95.00 feet Northwesterly
of, as measured at right angles, the Northwesterly outside face of an existing building; Thence South 13
07'29" West, along the previously described line and its southerly extension, for 148.75 feet; Thence South
07°43'5 7" West for 9.81 feet; Thence South 49°47'35" West .for 4,49 feet; Thence South 43°01' 12" Fast for
77.73 feet; Thence South 43'33'00" East for 54.15 feet; Thence South 43°26'13" East for 4 55 feet; Thence
South 48°06'S7" East for 20.77 feet to a point of Curvature of a circular curs,c concave to the northeast;
Thence Sauthettsterly, along the arc of said curve to the left, having a radius of 374.00 feet and a central
angle of 09°28' 16" for a distance of 61,82 feet to the point of tangency; Thence South 57°35' 13" East for
23.28 feet; Thence Sou h 80°19'2,1" East for 172,00 feet; Thence South 79°19'15" East for 13.23 feet toa
point of intersection with the back of an existing concrete sidewalk running along the north side of Pan
American Drive; Thence along the back of said existing sidewalk and its northeasterly extension, for the
following described t7.ve (5) courses; 1) 'thence South 74°54'37" East for 28.80 feet; 2) Thence South
77°42'57" East for 5.71 feet to a point ofcurvature of a circular ctnve coticave to the Southwest; 3) Thence
Southeasterly, along the arc of said curve to the right, having a radius of 222.00 feet and a central angle of'
21°55'13" for a distance of 84,93 feet to a point on Naid curve; 4) Thence North 87°54'54" East for 5:28
feet; 5) "!hence North 42°23' 1 i" East for 11.27 Net to the Point of jegitming.
Containing 195,848 sq. ft, ar4.50 acres more or leas.
LEGAL DESCRIPTION (PARCEL 2)
(FORMAL RESTAURANT •
& RESTAURANT PARKING)
A portion of Tract A of Dinner Key, according to the plat thereof its recorded in plat book 34, at page 2, of
the Public Records of Miatni Dade County, Florida and a portion of Section 22, Township 54 South, Range
41 East, Miatni-Dade County, Florida, more particularly described as follows:
Commence al the Southwest corner, of the Northwest '/,, of said Section 22; Thence South 02°24'44" East.
along the Southerly extension of'the West line of the NW 'f, of said Section 22, for 436.51 feet; Thence
North 86°27'43" East for 75.86 feet to a point of intersection with the U.S. Pier -Head Bulkhead line of
1939- as recorded in Pint Book 74, at Page 3, of the Public Records of Maim -Dade County, Florida, said
point labeled 11L-78-C 4nd said lute also being, the Northwesterly line ot"T.F,LF. Deed No. 19448 to City of
Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miatrtt-Dade County, Florida;
Thence along said I;,S. Pier -Head Bulkhead line, for the following described four (4) courses; 1) Thence
South 77°01'17" East, for 669,48 feet to a point labeled FIL; 78-B on the previously named plat; 2) Thence
North 74°08' 10" East ibr 526.25 feet to a point labeled HL: 78-A on the previously named plat; 3) Thence
North 43°08'20" East for 250.00 feet to a point labeled ; IL-76 on the previously named plat; 4) Thence
North 12°08'10" East ler 88,25 feet; Thence North 45°44'46" West, departing the previously described line,
for 3.75 feet to a point on the outside fece of an existing Seawall; Thence along the outside thee of said
seawall for the following described fifteen (15 ) courses; 1) Thence continue North 45'44'46" West for
12.58 feet; 2) Thence North 46°50'16" West for 262,72 feet; 3) Thence North 47°06'49" West for 73,59
feet; 4) Thence North 02°02'56" East for 0.70 feet; 5) Thence North 47°07'52" West for 59.52 feel; 6)
Theme North 41° 12'4C" East for 100.72 feet; 7) Thence South 46'47'08" East for 61.00 feet; 8) Thence
North 88°45'00" East for 0.64 feet; 9) Thence South 47°14'37" East for 41.99 feet; 10) Thence North
61'42'01" East for 21.07 feet, 11) '!'hence South 30° 14'35" East for 2,75 feet; 12) Thence North 62°06'03"
East fur 87.88 feet to the Point of L.3eeinning ofthe hereinafter described parcel; 13) Thence continue North
62°06'03" East for 114.64 feet to a point of curvature of a circular curve concave to the West, 14) Thence
Northeasterly, Northerly and Northwesterly, along the are of said curve to the left, having a radius of 75,00
feet and a central angle of 80°48'49" for a distance of 105.78 feet to the point of tangency; 15) Thence
North 18'42'46" West For 101.33 feet to a point on the northerly right-of-way line of Chart House !)rive as
shown, on the sketch of survey dated January 14, 1985 referred file No. misc. 61-139 rev, and prepared by
Schwebke & Shiskin and Associates and as shown on that Specific Purpose Surrey at Dinner Key Marina,
prepared by Biscayne Engineering ; Thence North 76°03'06" West, along the previously described line, for
226.31 feet; Thence South 39°08'26" West, departing the previously described northerly right-of-way line,
for 12.87 feet to a point on the northerly edge of pavement of Chart Mouse Drive said point being on a
circular curve concave to the Northeast and said point hears South 45°04'04" West from the center of sitid
curve; Thence along the northerly edge of'pavement of said Chart House Drive lbr the following described
three (3) courses; 1) Thence Southeasterly along the are of said curve to the left, luiving a radius of 273.78
feet and a central angle of 04'52'06" for a distance of 23.26 feet to a point; 2) Thence South 29°13'50"
West. tbr 21.8.2 feet to a point on a circular curve concave to the Northeast and said point bears South
38°44'40" West from the center of said curve; 3) Thence Northwesterly along the are of said curve to the
Right, having a radius ul' 348.97 feet and a central angle of 04°24'23" t'or a distance of 26,84 feet to a point
of intersection with thi T3oundary line of the tract of land described under Exhibit A in that certain Lease
Agreement recorded in Official Records Book 9916, at Page 1 1 10, of the Public Records of Miami Dade
County, Florida; Thence along the previously described l3oundcry line, and its Northerly extension, for the
following described two (2) courses; 1) Thence South 12°55'28" West for 152.77 feet; 2) Thence South
76° 17'34" East for 63.38 feet; `thence North 43°17'10" East, departing the previously described boundary
tine, for 5.77 feet; Thence South 74'27' 18" East t'or 13,19 feet to a point ot'curvature of a circular curve
concave to the Southeast; Thence Southeasterly, along the are of said curve to the right, having a radius of
31.50 feet and a Central angle of 33°37'09" East for a distance of 18.48 feet to the point of tangency;
Thence South 40°50'09" East for 37.58 feet to a point on the northerly end of an existing C.D.S. wall;
Thence South 49°09'51" West, along the northerly end of said existing C,13.S, wall for 0.43 feet to a point
on the southerly face amid existing t::.13.5. wall; Thence South 38°59'48" ;last, along the southerly thee of
said existing C.B.S. wall and its southerly extension,. for 84.41 feet to the Point of4pgiunii .
Containing 58,242 sq. ft or 1.34 acres more or less.
LEGAL DESCRIPTION (PARCEL 3)
(CASUAL RESTAURANT UPLANDS)
A ,portion of Section 22, Township 54 South, Range 41 Fast, Miami -Dade County. Florida, more
particularly described as follows;
Commence at the Southwest corner, ate Northwest 1, of said Section 22; Thence South 02°24'44" East,
along the Southerly extension of the West line of the NW '!a of said Section 22, for 436.51 feet; Theme
North 86°27'43" East, departing the previously described line, for 75.86 feet to a point labeled i-IL-7$-C
said point being a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in .Plat
13ook 74, .at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the
Northwesterly line of T.LI.F. Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260,
of the Public Records of Miami -Dade County, Florida; Thence along said LI.S. Pier -(-lead Bulkhead line,
for the following described tour (4) courses; 1) Thence South 77'01'17" East, lbr 669.48 feet to a point
labeled I1L-78-t; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled 1-11.-78-A; 3) Thence
North 43°08'20" East for 250..00 feet to a point labeled 1-IE.-76; 4) Thence North 12°08'110" East lbr 88.25
feel to a point of intersection with the southerly extension of the outside lace of an existing Seawnll;
'thence along the outside face oi'said seawall and its southerly extension for the following described twelve
(I 2) eourses; 1) Thence North 45°44'46" West lbr 16.33 feet; 2) Thence North 46°50' 16" West for 262.72
feet; Thence North 47°06'49" West for 73.59 feet; 3) Thence North 02°02'56" East for 0.70 feet; 4) 1 hence
North 47°07'52" West for 59.52 feet; 5) Thence North 43°12'49" East for 100.72 feet; 6) Thence South
46°47'08" East for 61,00 feet; 7) 'thence North 88°45'00" East for 0.64 feet; 8) Thence South 47° 14'37"
East for 41.99 feet; 9) Thenoe North 61°42'01" East for 21.07 feet; 10) Thence South 30° 14'35" East t r
2,75 feet; II) Thence North 62°06'03" East for 5.43 feet to the Point of Beginning of the hereinafter
described parcel; (2) Thence continue 'North 62°06'03" East for 82.45 feet; Thence North 38°59'48" West,
departing the previously described face of the seawall and running along the southerly face of an existing
C'.13.5. wall and its southerly extension, for 84,41 feet; Thence North 49°09'S1" East along the northerly
end of'said C.B.S. for 0,43 feet to a point on the Edge an existing Asphalt Pavement; Thence along
the Edge of said Asphalt Pavement and its.Nurthwesterly extension, for the Ibllowing described three (3)
courses; 1) Thcnoe North 40°50'09" West for 3.7.58 feet to a point of curvature of n cii'eular eurve coneaVC
to the Southwest; 2) Thenee Northwesterly, along the are of said curve to the left, having a radius of 31.50
feet and a central angle of 33°37'09" for a distance of 18,48 feet to the point of tangency: 3) Thence North
74°2.7' 18" West for 13". l9 feet to a point on the Northeasterly extension of the edge anti existing concrete:
Thence along the ,previously described edge of said concrete and its Northeasterly and Southwesterly
extensions for the following descried live (5) courses; 1) Thence South 43°17'10" West for 69.37 feet; 2)
Thence South 48°08'44" East fox 26.07 feet; 3) Thence South 41°51116" West for 10.30 feet; 4) Thence
South 45°40'17" East for 20.02 feet; 5) Thence South 41°51'16" West for 19.89 feet to a point of
intersection with an existing chain. link fence; Thence along said chain link fence and its southerly
extension for the following described three (3) courses; I) Thence South 46°34'27" East for 48.90 feet; 2)
Thence North 49°46'11" East for 14,07 feet; 3) Thenoe South 49°34'23" East for 26.67 fent to the Point of
Beginning.
Containing 12,356 sq. ft. or 0.284 acres more or less,
LEGAL DESCRIPTION (PARCEL 6A)
(MARINA. SUBMERGED LANDS)
A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, ar
the Public Records ot'11(jinni Dade County, Florida and a portion of Section 22, 'Township 54 South. Range
41 East, Miami -Dade County, Florida, more particularly described as follows!
Commence at the Southwest corner, of the Northwest'/, of said Section 22; Thence South 02°24.'44" last,
along the Southerly extension of the West line of the NW '/ of said Section. 22, for 436.51 feet; 'Thence
North 86°27'43" East for 75.86 feet to a point of intersection with the C1.S, Pier -Head Bulkhead line or
1939 as recorder! in Plat' Book 74, at Page 3, of the; Public Records of Miami -Dade County, Florida, said
point labeled HL-78-C and said line also being the Northwesterly line of T.1.1.F. Deed No 19448 to City of
Miami, recorded in Deed Book 3130; at Page 260, of the Public Records of Miami -Dade County, Florida;
Thence along said lt.S.. Pier -Head Bulkhead line, for the following described six (6 ) courses; 1) Thence
South 77°01'17" East, for 669,48 feet to a paint labeled I-HL-78-13 on the previously gained plat; 2) Thence
North 74°08'10" East for 526.25 feet to a point labeled 1.1L-78-A on the previously named plat; 3) Thence
North 43°08'20" East for 250.00 feet to a point labeled IRL•76 on the previously named plat; 4) Thence
North 12°08'10" East for 88.25 feet; Thence along the outside face of an existing seawall and its Southerly
extension for the following described twelve (12) courses; 1) Thence North 45°44'46'1 West for 16.33 lect:
2) Thence North 46°50'16" West for 262.72 feet to the Point of Beginning of the hereinafter described
parcel; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" hast for 0,70 feet; 5)
"Thence North 47'07'52" West for 59.52 feet; 6) Thence North 43°12'49" East tier 100.72 feet; 7) Thence
South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0,64 feet; 9) Thence South
47°14'37" East for 41.99 feet; 10) Thence North 6 t'°42'01" Eat for 21.07 feet; 11) Thence South 30° 14'35"
East for 2.75 feet; 12) 'Thence North 62°06'03" East for 87.88 feet; Thence South 27°53'57" Fast, departing
the previously described existing seawall, for 60.00 feet; Thence South 62°06'03" West for 118,88 feet;
Thence North 47°14'37" West for 26.50 feet; T'henec South 42°45'23" West for 71.49 feet to the Point of
i3egmning.
Containing 20,317 sq. cc. or 0.47 acres more or less.
LEGAL DESCRIPTION (PARCEL 6B)
(SUBMERGED LANDS ABUTTING
FORMAL RESTAURANT)
A portion ofTract A of Dinner Key, according to the plat thereof as recorded in plat hook 34, at page 2, of
the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South. Range
4 I East, Miami -Dade County, Florida, more partieularty described as follows:
Commence at the Southwest corner, of the Northwest '/, ol'said Section 22; Thence South 02°24'44" East,
along the Southerly extension of the West line of the NW '/ of said Section 22, for 436.51 feet; '['.hence
North 86°27'43" East for 75.86 feet to a point of intersection with the U.S. Pier -Head 13ulkhead line of
1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Ivlianti-Dade County, Florida, said
point labeled HL-78-C and said line also being the Northwesterly line of T.I.I,F. Deed No. 19448 to City of
Miami, recorded in Deed Book 3130, at Page.260, of the Public Records' of Miami -Dade County, Florida::
Thence along said U.S. Pier -Head Bulkhead line, for the following .described four (4 ) courses; 1) Thence
South 77°01'17" East, for 669.48 feet to a point labeled TIL-78-13 on the previously natned plat; 2) Thence
North 74°08'10" East for 526.25 feet to a point labeled FIL-78-A on the .previously named plat; 3) Thence
North 43°08'20" East for 250.00 feet to a point labeled Hi..-76 on the previously named plat, 4) Thence
North 12°08' 10" East. for 88.25 feat; Thence along the outside face of an existing seawall and its :Southerly
extension for the following described two (2) courses; 1) Thence North 45°44'46' West for 16.33 feet: 2)
Thence North 46°50'16" West for 262.72 feet, Thence North 42°45'23" East, departing the previously
described existing seawall for 71.49 feet; Thence South 47'14'37" Fast for 26.50 feet, Thence North
62°f06'03" East for 118.88 feet to the Point of E3eginntng of the hereinafter described parcel; Thence
continue North 62°06'03" East for 175,75 feet to the point of intersection with the previously described
U.S, Pier -Head Bulkhead line of 1939; 'Thence North 21°08'57' }:;act, along the previously described line.
for 146.73 feet; Thence North 76°03'06" West for 119,88 feet to El point of intersection with the outside
Face of an existing seawall; Thence along the outside face of said existing seawall for the following
described three (3) courses; 1) Thence South 18°42'46" East for 53,81 feet to the point of curvature of a
circular curve concave to the Northwest; 2) Thence southeasterly, southerly and southwesterly, along the
arc of said curve to the right, having a radius of 75.00 feet and a central angle of 80°48'499" fora distance of
105.78 feet to the point of tangency; 3) Thence South 62°06'03" West for 114.64 feet to the Point of
Beginn' g�
Containing 20,579 sq. ft. or 0.47 acres more or Tess.
Exhibit "B"
Parking Property
A PORTION of TRACT n" OF DINNER KEY, ACCORDING TO THE PLAT• THERM', AS RECDRDEO IN PLAT BC01( 34, PAGE
2 OP THE PUBLIC RECORDS OP MM14M1-0ARE CO(/NTY, FTORIDA AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE INTERSECTION OF THE CITY ItIONUMENT LINES OF SW 27TH AVENUE 1471H SOUTH BAY SHORE ORP/E
AS SHOWN ON S11D PW OF DINNER KEY,' THENCE NORTH 36' DEGRR'S 10 MINUTES 31 SECONDS EAST ALONG THE
410NL1MENT" LINE OP SAID BA*SHORE DRM FOR A DISTANCE Or 632.12 F&'7 THENCE SOUTH 44 DEGREES 34 MINUTES
37 SECONDS EAST ALONG 77I5 NORTHWESTERLY EXTENSION OF THE HISTORIC RIGHT -Of WAY LINE AS SHOWN ON THAT
BOUNDARY SURVEY INNER KEY CON'VEAIT10N CENTER S ADJACENT PARTING LOT" PREPARED BY GOLD COAST
ENGINEERING CONSULTANTS' INC GATED SEPTEM6 7 ,3A,. 1999,FOR A DISTANCE OF 77.62 FEET TO THE POINT OF
BEGINNING OF' THE FOLLOWING DESCRIBED PARCEL OF LANa THENCE NORM 36 DEGREES /0 MINUTES 31 SECONDS
EAST; ALONG A LINE' PARALLEL W1771 AND 77.00 FEET SOUTHEASTERLY or, AS MEASURED AT RIGHT ANGLES TO, THE
MONUMENT UNE aF SAID LrtYS'HORE DRIVE; FOR A DISTANCE OF 60.83 AZT To A POINT ON A CURVE;' SAID POINT
BEARS NORTH 38 DEGREES 35 MINUTES 40 SECONDS WEST, FROM TIE RADIUS POINT OF THE NEXT DESCRIBED
CIRCULAR CURVE CONCAVE TO THE SOUTHEAST AND RAVING A RADIUS OF 45.00 FEET; THENCE ALONG SAID CURVE TO
17/E RIGFLr FOR AN ARC DISTANCE' OF 7.25 FEET THROUGH A CENTRAL ANGLE OF 9 DEGREE'S 13 MINUTES 50
SECONDS TO A POINT' OF REVERSE' CURVATURE' MPH A CIRCULAR CURVE CONCAVE TO THE NORTHWEST AND MONO A
RADIUS OF 70.00 FEET; THENCE ALONG SAID CURVE' TO THE LEFT FOR AN ARC DISTANCE OF 27.38 FEET THROUGH A
CENTRAL ANGLE OF 22 DEGREES 24 MINUTES 39 SECONDS TO A POINT OF TANGENCY; THENCE NORTH 38 DEGREES 10
MINUTES 31 SECONDS' EAST ALONG A LINE PARALLEL WITH AND 84.50 55E7 SOUTHEASTERLY OF; AS MEASURED AT
RIGHT ANGLES TO, THE MONUMENT LINE OF SAID BAYSHORE DRIVE; FOR A DISTANCE OF 74.33 PE'ET TO A POINT of
CURVATURE WITH A CIRCULAR CURVE CONCAVE TO 7715 NORTHWEST AND HAVING A RADIUS OF 70.00 F'E51 THENCE
ALONG SAID CURVE TO THE LEFT FOR AN ARC DISTANCE OF 21.86 ME) THROUGH A CENTRAL ANGLE OF 17 DEGREES
53 MINUTES 48 SECONDS TO A PONT.OF REVERSE CURVATURE WITH A CIRCULAR CURVE CONCAVE' 10 THE SOUTHEAST
AND HAVING A RADIUS OF 85.00 PLT7 THENCE ALONG SAID CURVE' TO THE RIGHT FOR AN ARC DISTANCE OF 26.55
FEET THROUGH A CENTRAL ANGLE OF 17 DEGREES $3 MINUTES 48 SECONDS TO A POINT OF TANGENCY (THE LAST
MENTIONED FIVE COURSES BM ALONG THE £XIS77NG BACK Of WALK OF SAID 84YSHORE DRIVE); THENCE NORTH 36
DEGREES 10 MIMES 31 SECONDS FAST; ALONG A LINE PARALLEL WITH AND 77.00 FEET SOUTHEASTERLY OF; AS
MEASURED Ar RIGHT ANGLES TO, THE' A4ONUME.VT LINE ow SAID 8AYSHOR3 DRIVE, FORA DISTANCE OF 39.60 FEET TO A
POINT ON A CURVE,' SAID POINT BEARS NORTH 21 DEGREES 53 MINUTES 46 SECONDS WEST FROM THE RADIUS POINT
OF THE NEXT DESCRIBED CIRCULAR CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 15,00 FEET; THENCE
ALONG SAID CURD TO THE RIGHT FOR AN ARC DISTANCE OP 1.3.38 FEET THROUGH A CENTRAL ANGLE OF 51 DEGREES
05 MINUTES 53 SECONDS TO A P01NT OF COMPOUND CURVATURE WITH A. CIRCULAR CURVE CONCAVE TO THE
SOUTHWEST AND HAVING A RADIUS OF 25;00 FEET; HENCE ALONG SAID CURVE TO THE RIGHT' FOR AN ARC DISTANCE
OF 11.34 FEET THROUGH A CENTRAL ANGLE OF 26' DEGREES 05 ,MINUTES 12 SECONDS TO A POINT OF TANGENCY;
TF/ENOE SOUTH 34 DEGREES 44 MINUTES 51 5EC0ND5 EAST FOR A DISTANCE OF 8.61 FEET; THENCE SOUTH 31
DEGREE'S 1, MINUTES 12 SECONDS EAST soR A DISTANCE OF 207.40 FEET TO A POINT of CURVATURE WITH A
CIRCULAR CURVE CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 60.00 FELT, THENCE ALONG SAID CURVE TO
THE LEFT FOR AN ARC DISTANCE OF 33.93 FEET THROUGH A CENTRAL ANGLE OF 32 DEGREES 24 MINUTES Of
SECONDS TO A POINT OF TANGENCY,' THENCE 50UTH 63 DEGREES 35 Mi'NUTES 13 SECONDS EAST FORA DISTANCE OF
0.42 FEET T'O A Paw OF CURVATURE` WITH A CIRCULAR CURVE CONCAVE TO THE NORTHEAST AND FWV1iVG A RADIUS' OF
72,00 FEET, THENCE ALONG SAID CURVE' TO THE LEFT FOR AN ARC DISTANCE OF 19.66 FEET THROUGH A CENTRAL
ANGLE OF 15 DEGREES 38 MINUTES 34 SECONDS TO A POINT OF TANGENCY THENCE SOUTH 79 DEGREES 13
/bVU7ES 47 SECONDS EAST PUT' A DISTANCE' OF 6147 FEET; THENCE SOUTH 75 DEGREES 35 worts 44 SECONDS
EAST F'01R A DISTANCE OP 4.30 FEET; THENCE ,SOUTFI 14 DEGREES 59 /1NOTEs 22 SECONDS WEST,, ALONG THE
NORTHWESTERLY LINE OF PARCEL 5, AS SHOWN ON Thor TOPOGRAPHIC SURVEY PREPARED BY MANUEL a 1ERA +1c
ASSOC/TES DATED MARCH 5, 2012, FORA DISTANCE OF 266.99 FEET THENCE NORTH 44 DEGREES 34 MINUTES 37
S5CON'Os 215$7 ALONG THE HISTORIC RIGHT -OF --WAY LINE' AS SHOWN ON T71AI BOUNDARY SURVEY DINNER KEY
CONVENTION CENTENS ADJACENT PARKING LOT' PREPARED BY GOLD COAST ENGINEERING CONSULTANTS No DATED
SEPTEMBER 30, 1999, FOR A DISTANCE OF 394.43 FEET TO THE POINT OF DEMOTING (SAID COURSE BEING ALONG
ALINE PARALLEL W1111 AND 50:0 FEET NORTHEASTERLY OF, AS MEASURED AT RIGHT ANGLES TO, A LAVE ESTABLISHED
BETWEEN T5IE MONUMENT LINE OF 9*880RE DRIVE 4VD THAT CERTAIN U,sc. & 0,S. MONUMENT LOCATED AT THE
ROOF OF THE CITY OF MLAO HALL BUILDING A5 SHOWN ON THAT SPECIFIC PURPOSE' SURVEY 'TJINNE)? KEY MiIR/NA
AREA" PREPARED BY FERNANDO CA7ELL DATED MARCH 3; 2000),
SA/0 PARCEL OF LAND CONTAINING 79,320 SQUARE FEET OR• 1.82 ACRES MORE 01? LESS.
LYING AND BEING IN S5C770N 22, TOWNSHIP 54 SOUTH,, RANGE 41 EAST; CITY OF M/AK AMIAMI-DADE
Exhibit "C"
Design
(attached)
Exhibit "D"
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE
CONSTRUCTION COMPONENT GROVE BAY
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
DOSP d/b/a Miami Parking Authority
Continent and Contractual Liability
Waiver of Subrogation
Premises/Operations liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
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 included as an additional insured
DOSP d/b/a Miami Parking Authority listed as additional insured
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
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 Iiability policies
DOSP d/b/a Miami Parking Authority
VII. Owners & Contractor's Protective
Each Occurrence
General Aggregate
City of Miami listed as named insured
DOS? d/b/a
$1,000,000.
$1,000,000
VI. Payment and Performance Bond $TBD
City of Miami and DOS? d/b/a Miami Parking Authority listed as obligees
VIII. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $10,000 All other Perils
5% maximum on Wind
City of Miami and DOSP d/b/a MPA listed as loss payees
A.Limit/Value at Location or Site
B. Coverage Extensions:
As provided by the carrier
The above policies shall provide the City of Miami with written notice of cancellation or
materialchange from the insurer not less than (30) days prior to any such cancellation or
material change.
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.
Exhibit "E'r
Retail Configuration
GROVE BAY PARKINGfGARAGE
VS40 a laayar•Oria
Mi• Mtn
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2
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ii
a
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1 i /V
-
1 4 ili • •
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-
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=
MidogdiA44
1111141
1 The MPASite Spaces are generally located within the areas shown bubbled on this exhibit. The final location and
1 number of MPA Site Spaces shall be determined upon final approval by the city of the applicable plans for the
redevelopment of the subject property or any modification thereof. Grove Bayshall have the right to reconfigure
!A the MPA Site Spaces in order.to accommodate the entry and access points to the Parking Structure and future
service areas to accommodate tenants of the Marina Property and, from time -to -time, Grove Bay shall have the
right to temporarily close off the MPA Site Spaces, without compensation to the MPA, for construction staging,
special events and other similar types of temporary conditions or events.
2 . 3
5
War.mos..a,ft
THE HARBOuR
526;0 S Baystroe 142111,FL
31.123 _
D:ARODITELIDIVICA
0 Gram gay 1.../wastcroap.UC •
2544$. Baphase °dm i
Suite=
Miami FL303
WcW.
1
ceoEsuurectuo...st
imal-s04.3ent
Li.11.6021400...
XECulnekl:
;AROCIIIFCTUNICAGBI
B1
VTEPLAN
A-010
4
5
sooudS IS VdJ'N
FIRST AMENDMENT TO GROVE BAY PARKING FACILITIES AGREEMENT
Mn THIS FIRST AMENDMENT TO THE GROVE BAY PARKING
4rJ FACILITIES AGREEMENT (the "Amendment") is entered into as of the /ay of
410,01 J ary, 2019 (the "Effective Date"), by and among (i) the CITY OF MIAMI,
FLORIDA, a municipal corporation organized under the laws of the State of Florida (the
"City"), (ii) the DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF
MIAMI D/B/A MIAMI PARKING AUTHORITY, an agency and instrumentality of the
City of Miami, Florida (the "MPA"), and (iii) GROVE BAY INVESTMENT GROUP,
LLC, a Florida limited liability company ("Grove Bay" and, together with the City and
MPA, collectively, the "Parties").
RECITALS
WHEREAS, the City, MPA, and Grove Bay entered into that certain Grove Bay
Parking Facilities Agreement, dated effective as of February 8, 2016 (the "Parking
Agreement"); and
WHEREAS, the Parking Agreement amended that certain Lease between the
City and Grove Bay, dated October 24, 2013, related to that certain property owned by
the City and located at 3385 Pan American Drive and 51 Chart House Drive, Miami,
Florida (the "Lease"); and
WHEREAS, the amendments to the Lease incorporated into the Parking
Agreement were intended, to among other matters, set forth the understanding between
the Parties related to the Parking Property and the Parking Facilities to be constructed
thereon, including, without limitation; (i) the MPA's obligations in connection with the
construction of the Parking Facilities, (ii) the respective obligations of the Parties with
respect to the operation of the Parking Facilities, including, without limitation, the
Parking Facilities Retail Area, and (iii) the rights and corresponding duties of Grove Bay
and its Permittees to use the Parking Facilities; and
WHEREAS, the MPA sought bids for the construction of the Parking Facilities
soon after the execution of the Parking Agreement; however, such bids exceeded the
MPA's budget for the construction of the Parking Facilities, which the MPA determined
necessitated the value engineering of the Parking Facilities; and
WHEREAS, the Parties desire to make changes to the Parking Agreement to
incorporate the design changes resulting from the value engineering process and to,
among other matters, amend the deadlines for the commencement and completion of the
construction of the Parking Facilities; and
WHEREAS, the changes requested in this Amendment are being presented
because certain conditions subsequent, such as the commencement of construction of the
Parking Facilities by the date specified in the Agreement, did not occur within the time
required in the Agreement; and
17-2511/ June 6, 2018
WHEREAS, various authorities have recognized and allowed modifications and
amendments to a competitively procured Agreement which are within the scope of the
original competitive procurement; and
WHEREAS, various authorities have recognized the "cardinal change doctrine"
that allows changes to a competitively procured Agreement which are not materially
different from the Agreement entered as a result of such competitive procurement
process; and
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained, the parties hereto agree as follows:
A. The above recitals are true and correct and are incorporated herein by this
reference. All capitalized terms used in this Amendment without separate definition shall
have the same meanings assigned to such terms hi the Lease and/or the Parking
Agreement.
B. Section 3.2 of the Parking Agreement, entitled "Design of the Parking
Facilities," is hereby amended by deleting Exhibit "C" in its entirety and replacing
Exhibit "C" with the document entitled "Revised Exhibit C" and attached hereto.
C. Section 3.3(d)(2) of the Parking Agreement is hereby deleted in its entirety
and replaced as follows:
"(2) the Parking Facilities will consist of a three (3) level
parking structure, containing (i) not less than 253 parking spaces
within the Parking Structure and 77 surface parking spaces within
the Parking Property (collectively, the "Facility Parking Spaces"),
(ii) approximately 33,476 square feet of Gross Leasable Area
(enclosed and under roof) on first floor of the Parking Facilities,
and (iii) such other uses as set forth in the Plans and
Specifications;"
The City, MPA , and Grove Bay further each acknowledge that Section 4.1.1 of the
Lease currently and expressly provides for an adjustment to the Minimum Base Rent if
the MPA constructs a Parking Facilities Retail Area with less than 40,000 square feet of
gross leasable retail space. Specifically, Section 4.1.1 of the Lease currently provides as
follows:
"Notwithstanding the foregoing, the parties acknowledge that the
calculation of Minimum Base Rent set forth above is based on the
assumption that the Parking Facilities Retail Area will contain
40,000 square feet of gross leasable retail space and, as such, the
Lessee will pay $400,000 of Minimum Base Rent or $10 per
square foot per annum of gross leasable retail space. As such, the
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amount of Minimum Base Rent set forth above shall be adjusted
such that the Minimum Base Rent shall equal $10 per square foot
per annum of gross leasable retail space actually constructed by the
MPA."
Therefore, as a result of the reduction in the size of the Parking Facilities Retail Area
from 40,000 square feet of Gross Leasable Area to 33,476 square feet of Gross Leasable
Area, the Lease entitles and provides to Grove Bay to a proportional reduction to the
Minimum Base Rent as specified in Section 4.1.1 of the Lease. The proportional
reduction provided by Section 4.1.1 of the Lease results in a downward adjustment to the
Minimum Base Rent of $65,240 per year (assuming that, after construction, the Gross
Leasable Area of the Parking Facilities Retail Area equals 33,476 square feet of Gross
Leasable Area), which reduction shall be applied to the Minimum Base Rent due after the
occurrence of the Operation Date.
D. Section 3.3(f) of the Parking Agreement is hereby deleted in its entirety
and replaced as follows:
"The parties acknowledge that the Gross Leasable Area of the
Parking Facilities Retail Area have not yet been definitively
established because the final design of the Parking Facilities has
not, as of the present date of execution of this Amendment hereof,
been completed. Upon delivery of possession of the Parking
Facilities Retail Area, the MPA shall set forth in writing to Grove
Bay the amount of Gross Leasable Area (enclosed and under roof)
contained within the Parking Facilities Retail Area. Within forty-
five (45) days after the Operation Date (as defined in Section 4.1
of the Lease), Grove Bay may cause the Parking Facilities Retail
Area to be measured by an independent, professional, certified and
licensed architect approved by the Parties, and paid for jointly by
Grove Bay and the MPA , in a written document who will certify
to the MPA and Grove Bay the actual Gross Leasable Area of the
Parking Facilities Retail Area (the "Certified Area"). The
measurement of the Parking Facilities, whether for the purposes set
forth in this Section 3.3(f) or for any other purpose under the Lease
or the Parking Agreement, shall be based on the accepted and
established definitions and standards for measuring Gross Leasable
Area as set forth in the Business Owners and Managers
Association Retail Standard (ANSI/BOMA Z65.5-2012). If the
Certified Area varies from the Gross Leasable Area specified in the
notice provided by MPA, the measurement of Gross Leasable Area
of the Parking Facilities Retail Area shall be modified to be the
Certified Area as herein provided, and the 4.1.3 Rent and any other
rent, charge or receipt under this Lease based upon the square
footage of the Parking Facilities Retail Area shall be adjusted
proportionately to reflect the Certified Area."
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E. Section 3.4 of the Parking Agreement, entitled "Parking Trust Fund
Contribution" is hereby deleted in its entirety and replaced as follows:
(a) Current Status. The Parties acknowledge and agree that
Grove Bay has deposited $1,242,500 with the City in compliance
with Grove Bay's obligation related to the Initial Parking Trust
Fund Contribution as set forth in Section 4.10 of the Lease (the
"Initial Trust Fund Contribution") and that the Lease, as amended
by the Parking Agreement, provides that the total aggregate
contribution (inclusive of the Initial Trust Fund Contribution)
payable by Grove Bay towards the construction of the Parking
Facilities is $4,000,000. However, under Section 4.10 of the
Lease, as amended by the Parking Agreement, the City is obligated
to return the Parking Trust Fund Contribution to Grove Bay if the
MPA has not obtained building permits for, and commenced
construction of, the Parking Facilities within twelve (12) months of
the Possession Date (as defined in Section 1.1.37 of the Lease).
The Parties acknowledge, and accept without objection, that the
MPA has not obtained building permits for, or commenced
construction of, the Parking Facilities within twelve (12) months of
the Possession Date; provided, however, the Parties acknowledge
that MPA has obtained building permits and commenced
construction of the Parking Facilities prior to the date of this
Amendment. In addition, under Section 4.10 of the Lease, as
amended by the Parking Agreement, the amount of the Parking
Trust Fund Contribution was based on constructing Parking
Facilities with 333 parking spaces within the parking garage and,
as such, the reduction in the size of the Parking Facilities (as set
forth in the Design) would expressly entitle Grove Bay, pursuant to
Section 4.10 of the Lease, to an equitable reduction in the overall
Parking Trust Fund Contribution based on the stipulated sum of
$12,000 per parking space. Furthermore, Section 4.1.1 of the
Lease, as amended by the Parking Agreement, provides that the
Minimum Base Rent will not increase to $2.0 million per year, and
remain at $1.9 million for the duration of the Lease, if the Parking
Facilities Conditions are not satisfied by January 1, 2018, and
further reduced to $1.8 million for the duration of the Lease if the
Parking Facilities Conditions are not met by June 1, 2018.
(b) Agreed Accommodations. Grove Bay hereby agrees to
voluntarily, freely and knowingly waive its entitlement or rights to
any claim, cause of action, or action for a return of the Parking
Trust Fund Contribution as a result of the matters set forth above,
conditioned on the following agreement hereby reached between
the Parties: (i) the City will release the Initial Trust Fund
Contribution to MPA upon MPA delivering written notice to the
City that the MPA has received the applicable building permits to
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construct the Parking Facilities; (ii) the Parking Trust Fund
Contribution (in the amount modified herein) will be released or
paid to MPA in conjunction with the construction of the Parking
Facilities as set forth in Section 3.6 of this Agreement; (iii) the
aggregate amount of the Parking Trust Fund Contribution for the
parking spaces presently being constructed shall be a stipulated
amount of $3,036,000 (which stipulated sum is based on
multiplying the total number of parking spaces within the Parking
Structure by $12,000), (iv) Grove Bay will deposit the entire
balance of the Parking Trust Fund Contribution (a total of
$1,793,500) in a separate, segregated and limited purpose account
in the name of Grove Bay (sufficient written evidence of which to
be provided to the City and MPA), within thirty (30) days of the
Effective Date of this Amendment; (v) the phrase "Parking
Facilities Conditions," as defined in the Lease, as amended by the
Parking Agreement, is hereby amended to replace the reference to
"approximately 333 parking spaces and 80 surface parking spaces
within the property in which the Parking Facilities are located"
with "approximately 253 parking spaces within the parking garage
and 77 surface parking spaces within the property in which the
Parking Facilities are Located"; (vi) the City and the MPA hereby
waive any existing defaults, if any, by Grove Bay under the Lease
occurring prior to the Effective Date; and (vii) the City and the
MPA will use the Parking Trust Fund Contribution solely to pay
the cost of construction of the Parking Facilities and other ancillary
and incidental purposes related to such construction.
(c) The City and MPA further acknowledge that Section 4.1.1
of the Lease (as amended by the Parking Agreement) currently
contemplates an increase in the Minimum Base Rent payable by
Grove Bay, which increase is conditioned upon the City and MPA
timely completing the Parking Facilities Conditions. Specifically,
Section 4.1.1 of the Lease (as amended by the Parking Agreement)
currently provides the following:
". . . upon satisfaction of the Parking Facilities
Conditions, the Minimum Base Rent shall increase
to $1.9 million per annum for the twenty-four (24)
month period after satisfaction of the Parking
Facilities Conditions are satisfied and $2.0 million
per annum thereafter. Notwithstanding the
foregoing, if the Parking Facilities Conditions are
satisfied, but only after January 1, 2018, then the
amount of the Minimum Base Rent shall remain at
$1.9 million and will not increase to $2.0 million as
set forth above and, if the Parking Facilities
Conditions are satisfied, but only after June 1, 2018,
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then the amount the Minimum Base Rent shall
remain at $1.8 million for the duration of the Lease
(each subject to adjustment as set forth in following
sentence)."
As a result of the untimely satisfaction of the Parking Facilities
Conditions, Grove Bay is not currently legally obligated to either
pay the Parking Trust Fund Contribution or increase the Minimum
Base Rent to the amounts set forth above. In consideration for the
temporary reduction in the Rent for the period commencing on the
month immediately after the Effective Date (the "Temporary
Reduction Commencement Date") and ending on the second
anniversary of Temporary Reduction Commencement Date in the
amount of $58,333.33 per month for a total of twenty four (24)
months, Grove Bay agrees to the accommodations set forth above
related to the Parking Trust Fund Contribution and delete in its
entirety the second and third sentences of Section 4.1.1 of the
Lease and replace such sentences with the following:
"The Minimum Base Rent shall initially be $1.4
million per annum (the "Initial Minimum Base
Rent") and shall increase to $1.8 million per annum
upon the Operation Date; provided, however, that
the Minimum Base Rent shall increase to $1.9
million per annum after the Operation Date if the
City meets the Parking Facilities Conditions on or
before April 30, 2019 (each amount set forth above
subject to adjustment as set forth in following
sentences). Notwithstanding the foregoing, the
Rent (as defined in Section 1.1.41 of the Lease)
payable by Lessee to the City shall be temporarily
reduced by $58,333.33 per month for the period
commencing on the Effective Date of the
Amendment through the second (2"d) anniversary of
such date."
(d) Notwithstanding the modification to the amount of the
Parking Trust Fund Contribution set forth herein, Grove Bay
hereby acknowledges and agrees that the total amount of privately
funded improvements to the Property, referred to in the Lease as
the "Equity Contribution," will not be less than $17,900,000. For
avoidance of doubt, if the total number of parking spaces within
the Parking Structure is less than the 253 parking spaces set forth
in the Design, the total amount of the Parking Trust Fund
Contribution shall be reduced based on the method of calculation
set forth above.
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F. Section 3.5 of the Parking Agreement, entitled "Configuration of the
Retail Space," is hereby amended by deleting Exhibit "E" (Retail Configuration) in its
entirety and replacing Exhibit "E" with the document entitled "Revised Exhibit E (Retail
Configuration)" and attached hereto.
G. Section 4 .2(b)(iii) of the Parking Agreement is hereby deleted in its
entirety and replaced as follows:
"(iii) that Grove Bay and its Permittees will, at any time during the
normal operating hours of the Parking Garage, have the right to use
up to, but not more than, 103 parking spaces within the Parking
Garage without charge to either Grove Bay or its Permittees
(without limiting the generality of the foregoing, the MPA and
Grove Bay shall in good faith negotiate, prior to the
commencement of operation of the Parking Garage, the written
rules and mutually accepted methods agreed to in writing by which
Grove Bay and its Permittees will be provided the above stated
access to the Parking Garage)"
The MPA acknowledges that the Parking Agreement provided Grove Bay with the
exclusive use of the top floor of the Parking Garage in consideration for Grove Bay
granting the MPA the right to receive all the revenues from the MPA Site Spaces. As
such, the amendment set forth above is an accommodation to the MPA, which will
provide the MPA with greater flexibility in managing the operation of the Parking
Garage. In recognition thereof, the MPA agrees that Grove Bay shall have the right,
upon three (3) days' written notice to the MPA, to the exclusive use of the top floor of the
Parking Garage for such events as may, from time -to -time, be scheduled by Grove Bay;
provided, however, that Grove Bay acknowledges that any such event will require such
applicable governmental approvals and permits, and compliance with applicable laws and
regulations, including, without limitation, a special event permit, as may be necessary to
comply with applicable laws and regulations.
For avoidance of doubt, the Parties also acknowledge that the parking spaces made
available as the MPA Site Spaces (as defined in Section 4.2 of the Parking Agreement)
are being constructed with the intention that such parking spaces will serve towards
satisfying the parking requirements imposed by applicable laws or regulations including,
without limitation, the City of Miami 21 Code (the Zoning Ordinance of the City) arising
from the contemplated development within the Marina Property. The MPA and City
agree not to take any action that may hinder the ability of the Marina Property to use the
MPA Site Spaces towards satisfying the parking requirements imposed by applicable
laws or regulations.
H. Section 9.2(1) of the Parking Agreement is hereby deleted in its entirety
and replaced as follows:
"(1) the right granted by the City and MPA in favor of Grove Bay
and its Permittees (i) to use, without charge, the covered areas
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(breezeways and walkways) identified on Exhibit "G", which
Exhibit depict an area containing no more than approximately
9,220 square feet for outdoor seating, special events, and other
approved ancillary uses related to the business conducted therein
(except such areas as necessary for public safety, public health, or
emergency measures or to permit pedestrian movement through
the Parking Structure) and (ii) to install and maintain, without
charge, restaurnt hoods and ventilation systems in such areas as
identified on the Plans and Specifications for use thereof."
I. In addition to the Indemnification provisions set forth in the Lease and
Parking Agreement, Grove Bay indemnifies, hold harmless and agrees to defend, at its
own cost, the City and MPA1 jointly and severally, and their respective officials and
officers, from any and all claims, actions, causes of action filed against the City or MPA
alleging that actions taken by Grove Bay or its agents with respect to the Property (i)
violate applicable laws, regulations or agreements or (ii) fail to comply with any permits,
approvals or consents required by applicable laws, regulations or agreements. This duty
to Indemnify, Hold Harmless and Defend will survive the expiration or cancellation of
this Amendment or any Agree ent it amends. In the event that the City or MPA receive
notice of the assertion of any Maim or the commencement of any action by a third party
in respect of which indemnity may be sought hereunder, the City and/or MPA shall notify
Grove Bay in writing of such claim. Grove Bay shall assume the defense of such claim
in accordance herewith and the tender of defense shall be through one counsel selected by
Grove Bay and reasonably satsfactory, as applicable, to the City and MPA, and will
apply to and throughout administrative, trial, appellate, bankruptcy, regulatory and all
other claims, actions, causes of action, or proceedings.. If either the City or the MPA
determine that it is in their best interest to engage separate counsel or, if the interest of the
parties shall diverge such that, in the reasonable discretion of the counsel tendered for the
parties, the parties may not be represented by one counsel, then the City or MPA shall
retain separate co -counsel and the fees and expenses related to such co -counsel shall be at
the expense of the City or MPA. Grove Bay acknowledges receipt of good, sufficient
and independent consideration fr this voluntary grant of an Indemnity.
J. Except as specifically modified in this Amendment, all the terms and
conditions of the Lease and the Parking Agreement shall remain in full force and effect.
In the event of any inconsistency between the terms of this Amendment and the terms of
the Lease or the Parking Agreement, then the terms of this Amendment shall control.
This Amendment shall be binding upon the heirs, successors and assigns of the Parties.
K. This Amendment may be executed in any number of counterparts, each of
which will be deemed to be an original, and all of such counterparts will constitute one
Amendment. To facilitate execs Lion and delivery of this Amendment, the parties may
execute and exchange counterparts of the signature page by fax. The signature of any
party to any counterpart may be appended to any other counterpart.
signature page follows]
-S-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
ATTEST:
City Clerk
(Affix City Seal)
ATTEST:
CITY:
THE CITY OF MIAMI, Florida, a municipal
corporatio •rg:nized under the las' the State
of Florid
Dr. Emilio T. Gonzalez
City Manager
MPA:
DEPARTMENT OF OFF-STREET PARKING OF
THE CITY OF MIAMI,
D/B/A MIAMI P ING AUTHORITY
By:
Name: Arthur riega
Title: Chief Executive Officer
GROVE BAY:
GROVE BAY INVESTMENT GROUP LLC
By:
Nam 6- J 6ce,rcaa. ,
Title: Authorize anaging Partner or Member
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ATTEST:
Bv:
Name:
AP ROVED AS TO LEGAL FORM:
ictoria M nd
City Attor ey
PROV . SjYO INSURANCE:
Anne Marie-S arpe, Director of Risk
Management
-I0-
REVISED EXHIBIT "C"
The parties acknowledge that the design of the Parking Facilities will be as set forth in the plans entitled "Grove Bay
Parking Garage for Miami Panting Authority," revision dated October 4, 2017, prepared by Wolfberg Alvarez
Architecture Engineering (a copy of Page A1.01 thereof is attached hereto for reference), The parties further
acknowledge that certain matters related to the design of the Parking Facilities remain subject to the good faith
negotiations between the parties; specif cally, the location of exhaust hoods and service corridors, the modification of
the design to include double doors in each retail bay, and the removal of certain glass storefront areas.
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- 11 -
REVISED EXHIBIT "E"
CCMC1l I{WIII'FOhIVUNY3I MYNNVa CON
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-12-
EXHIBIT "G"
"Hatched Areas" are the covered areas (breezeways and walkways) referred to in Section
9.2(1) of the Parking Agreement, as amended.
"""r""""" •tunas-11
111/11111.41
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