HomeMy WebLinkAboutR-77-0096A/t§
1/11/7/
CITY OF MIAMI, FLORIDA:
RESOLUTION NO..... 77
A RESOLUTION APPROV'INd SITE AND DEVELOPMENT PLAN ON A
PROPOSED RESTAURANT ON CITY -OWNED PROPERTY t�Nc WN A8
GROVE ttR' MARINA, AT APPROXIMATELY 2664 SOUTH BAYHHORR
DRIVE, DINNER REY, AS REQUIRED BY SECTION 4 (1) , ARTICLE
XVIII..1 (PUBLIC PARKS & RECREATIONAL USE) P..R DISTRICT,
SUBJECT TO SUBMISSION OP DETAILED SITE, LANDSCARINct
AND BUILDING PLANS ROR PLANNING DEPARTMENT APPROVAL.
WHEREAS, the Miami planning Advisory Board, at its meeting
of January 5, 1977, Item #5, following an advertised hearing,
adopted Resolution No. PAB 3-77 by a 7 to 0 vote recommending
site and development plan approval on a proposed restaurant on
City -owned property known as Grove Key Marina, at approximately
2664 South Bayshore Drive, Dinner Key, as required by Section
4(1), ARTICLE XVIII-I (Public Parks & Recreational Use) P-R
District; and
WHEREAS, no objections have been received to said site and
development plan; and
WHEREAS, the City Commission deems it advisable and in the
best interest of the general welfare of the City of Miami and
its inhabitants to grant said approval;
NOW, THEREFORE, BE IT RESOLVED BYD ongterg
THE
r+
• ITEM NO.
Section 1. The site and development plan on a proposed
restaurant on City -owned property known as Grove Key Marina, at
approximately 2664 South Bayshore Drive, Dinner Key, as required
by Section 4(1), ARTICLE XVIII-1 (Public Parks & Recreational
Use) P-R District, be and the same is hereby approved, subject
to submission of detailed site, landscaping and building plans
for Planning Department approval.
PASSED AND ADOPTED this 27 day of
.JANUARY
, 1977,
PROP 3RED AND APPROVED BY; APP = tBD AS T S FORM AND
• „
Michel E, ABder$on I iv
-rLie.tw_'�
ASSistant City.Attorney
rao-. 1. KBQ
ty Attorney
RECTNESS:
CQMMISSIQN
MEETING OF
JAN 1 l I977
THIS AbbEN SUM TO THE Lthst AGREEMENT between the City
bf Miaiiti, a municipal corporation of the State of Florida
hereinafter called the "City" and Crove Rey Marina, Inc, a
r1orida corporation, hereinafter called the "Company", adds
certain provisions .sions to that Lease Agreement trade and entered into
between the parties on April 1, 1976=
WHEREAS, the City Commission adopted Resolution
76-307 authorizing and directing the City Manager to execute
a Lease Agreement with the Company for the eight year period
beginning Tu1y 1, 1976 and ending June 30, 1984; and
WHEREAS, said Lease Agreement dated April I, 1976
(hereinafter the "Lease Agreement") provided that the Company
and the City shall negotiate for constructing and operating a
restaurant facility on the leased premises, with the terms and
conditions relating to this food and beverage facility to be
determined by mutual agreement between the City and the Company
and subject to approval by the City Commissicf; and
WHEREAS, said Lease Agreement provided that the
Company shall not sublet any part of the premises except by
virtue of written authorization granted by the Commission of
Miami; and
WHEREAS, the City Commission on October 14, 1976 by
Motion 76-885 approved in concept the size and type of
restaurant to be constructed on the premises;
NOW, THEREFORE, the parties agree as follows:
1, premises to be Leased.
The City does hereby lease to the Company and
the Company does hereby hire from the City, in addition to the
.:operty set forth in paragraph .. of the Lease Agreement, the
property more prirtieu1urly described in Exhibit A attached
hereto,
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77 re
The City cues hereby grant an easement to Gtove
Rettautaht t,td. , Sublessee, uftdet the terms of the Sublease
attached hereto as Exhibit C for the purpose of erecting a
sign or signs, said easePent berg more particularly described
in Exhibit g attached hereto►
2. Pub1ease.
The City hereby authorizes the Company to
sublease that certain parcel described in Exhibit A, herein. -
after referred to as the "Restaurant Facility" to Grove
Restaurant Ltd., a Florida limited partnership, and approves
the sublease between Grove Rey Marina, Inc. and Grove Restaurant
Ltd. attached hereto as Exhibit C.
In the event that Grove Key Marina, Inc.
defaults under the terms of the Lease agreement or in the
event that Grove Key Marina, Inc. is removed from the premises
or ceases to operate the premises for any reason, the City
and the Sublessee shall be deemed to be in direct privity
and all payments required under the terms of the Sublease
shall continue to be made directly to the City.
3. Rent for Restaurant Facility.
The consideration contemplated under Paragraph
4 of the Lease Agreement shall not apply to the Restaurant
Facility. Rent shall be paid to the City for this Restaurant
Facility on the following basis:
(A) Rent.
During the term of this lease the Company
or its Sublessee shall pay to the City a minimum annual rent
of Thirty Six Thousand Dollars, payable as follows:
(i) An .amount equal to three and one-half
percent (3.5%) of monthly gross sales as herein defined
hall be paid monthly to the City on or before the fifteenth
day of the following month;
r
(i) Within fifteen days after the elbse of
caoh lease year, the Company or its Sublessee shall pay to the
City the amount, if any► by which the payments made pursuant to
Paragraph (i) abode were less than 'Thirty Six Thousand boliars.
(iii) boring t-.e month in which the
Restaurant Facility commences operation, the first day of that
itionth shall be considered the day fµo-i which each lease year is
calculated. However, the minimum annual rent for the first
.ease year shall be reduced pr-orata for the number of days
during the first month which the restaurant Facility was not
yet in operation,
(8) Ad Valorem Tares.
In the event that the Restaurant Facility
becomes subject to ad valorem taxation on the leasehold interest
or the possessory interest attributable to the land owned by the
City which is subleased for the Restaurant Facility, then these
ad valorem taxes shall be paid by the Company or its Sublessee
and that amount shall be deducted from the amount which would
otherwise be payable in accordance with Paragraph (A) above.
This reduction from rent to the City for ad valorem
taxes shall not apply to ad valorem taxes attributable to the
building, equipment or fixtures of the Restaurant Facility, which
shall be paid by the Company or its Sublessee.
(C) Payment by Sublessee
Rent under the terms of this provision will
be paid directly to the City by the Sublessee but in no instance
shall this provision be construed tc release the Company from
paying said rent if the Sublessee s'.-.ould fail to make rental
payments.
4, Gross Sales
The terms gross sales shall be interchangeable with
the term gross receipts, Gross sales for the Restaurant Facility
as used in paragraph 3A of this Addc:jdum shall be as defined in
paragraph 12 of the Sublease between Grove Key Marina and Grove
Restaurant: I.tci., which is attached Y veto as Exhibit C.
(ii) Withih fifteen days after the close of
€ach lease year, the Company or its Sublessee shall pay to the
City the amount, if any, by which the payments made pursuant to
paragraph (i) above were less than Thirty Six Thousa►d Dollars.
(iii) During the month in which the
Restaurant Facility commences operation, the first day of that
month shall be considered the day from which each lease year is
calculated. However, the minimum annual rent for the first
lease year shall be reduced prorata for the number of days
during the first. month which the Restaurant Facility was not
yet in operation.
(8) Ad Valorem Taxes.
In the event that the Restaurant Facility
becomes subject to ad valorem taxation on the leasehold interest
or the possessory interest attributable to the land owned by the
City which is subleased for the Restaurant Facility, then these
ad valorem taxes shall be paid by the Company or its Sublessee
and that amount shall be deducted from the amount which would
otherwise be payable in accordance with Paragraph (A) above.
This reduction from rent to the City for ad valorem
taxes shall not apply to ad valorem taxes attributable to the
building, equipment or fixtures of the Restaurant Facility, which
shall be paid by the Company or its Sublessee.
(C) Payment by Sublessee
Rent under the terms of this provision will
be paid directly to the City by the Sublessee but in no instance
shall this provision be construed to release the Company from
paying said rent if the Sublessee should fail to make rental
payments.
4. Gross Sales
The term gross sales shall be interchangeable with
the term gross receipts, Gross sales for the Restaurant Facility
as used in paragraph 3A of this Addendum shall be as defined in
paragraph 12 of the Sublease between Grove Key Marina and Grove
Restaurant )atd,, which is attached hereto as txhibit C,
Cross sales as set forth in paragraph 4 of the
Lease Alreetneht shill be strictly construed as defined
thtreihi and shall not apply to reVeniaes of the Company
Which arise from inVestments or par tieipation in the operation
of the restaurant facility, or receipts attributable to the
Sublease Agreement or ihvestments or participation in rather
business ventures unrelated to the Lease Agreement.
S. '10r'1t Deposit.
On the date this Addendum and the Sublease
(exhibit C) are approved by the City and executed, the
Company or its Sublessee shall pay to the City the sum of
$9,000. as advance payment of the first three months minimum
monthly rent due hereunder. This amount shall be promptly
returned to the Company or its Sublessee in the event that
failure of any of the conditions subsequent in paragraph 3
of the Sublease have occurred.
6. Improvements of City.
Upon commencement of construction of the
restaurant, the City agrees to commence construction and
installation to the leased premises of the following improve-
ments and to pursue such work with due diligence:
a. Access road with street lighting with
underground cables with electrical stubouts
for future ornamental iighti_ng, such ornamental
lighting to be installed by the Sublessee.
The access road is to be located in approximately
the location indicated in Exhibit A attached
hereto, commencing at South F3ayshore Drive
providing public access to the leased premises,
b. Water supply to the lased premises to
the property line closest to the Restaur°ant
In an afflount adequate to serviee the Restaurant
and premises.
o. Adequate sanitary sewer.
7. Term.
The parties agree that in order to facilitate
the financing of the major improvements to the leased premises,
including the construction of the Restaurant Facility, the term
of the Lease Agreement is hereby extended through ►7une 30, 2009,
or thirty years from the date the Restaurant Facility commences
business, whichever terminates first.
8. Licenses.
It is contemplated that the Restaurant Facility
shall require a license to sell alcoholic beverages, and the
City hereby agrees to cooperate fully with The Company and its
Sublessee to obtain such license, as well as other licenses
or permits as may be necessary in the construction and
operation of the Restaurant Facility. This paragraph shall
not be construed to require the City to relax or avoid its
laws.
9. Ownership of Improvements.
All improvements, furnishings, and equipment
constructed or installed on the Restaurant Facility Premises
by the Company or its Sublessee shall be personal property,
and Company or. its Sublessee shall have legal title thereto
during the term of this lease. In the event Company or its
Sublessee decides to finance the purchase and installation
of certain furniture, fixtures, and equipment by use of a
financing agreement under the Uniform Commercial Code, a
conditional bill of sale, a leasing agreement, or some other
security or title retention agreement ("Financing Agreement'")
the City acl;now].edges that title to the equipment may be in
the name Qf the company providing the financing t" 'i nanc ng
Agency" ) for the period of financing, attc1 that the Pihahcihg
Agency's right to such equipment is paramount to the rights
of the City hereunder, In connection therewith, the City
agrees tb execute such waiver and consent forms as are
Customarily required by the Pihancing Agency, The Company
or its Sublessee will use their best efforts to require that
the Financing Agency notify the City of any default by the
Company or its Sublessee under any Financing Agreement, in
the event of which the City may either (i) cure the Company
or its Sublessee's default, upon which Company or its
Sublessee shall assign to the City its rights under the
Financing Agreement; or (ii) require that the Company or its
Sublessee replace the equipment removed by the Financing
Agency with equipment of equal or better value. Upon the
termination of the Financing Agreement the Company or its
Sublessee shall obtain title to such equipment or shall
replace such equipment with comparable equipment of equal or
better value. upon the expiration or termination of this
lease, title to all permanent real property improvements
constructed on the Premises shall vest in the City.subject.
to -the rights of any financing agency. Title to all supplie%,
furnishings, inventories, business fixtures, removable
equipment and other personal property shall remain vested
with the Company or its Sublessee, and the Company or its
Sublessee shall have the right to remove such items, excepting
Licenses, from the Premises unless the Company or its
Sublessee is in default hereunder,
10. Manner of Operation.
a, The Company or its Sublessee shall },eep
the restaurant and coc}*tail lounge reasonably stocked with food
and beverage and reasonably staffed to serve the patrons
thereof, and the Company or its Sublessee shall maintain 4
1
standard of quality of food and beverage at least equal to similar
operations iti the area at reasonably comparable prices.
b. r.'he facilities to be constructed by the
Company or its Sublessee shall be open seven days a week'
with the ekcep€JMh of Christmas bay and Thanksgiving bay, or
such other days that are approved in writing by the City
Manager.
follows:
c. Minimum hours of operation shall be as
Lunch
Monday through 1riday
Saturday and Sunday
11:00 a.m. to 2:00 p.m.
11:00 a.m. to 3 : 00 p.m.
Dinner
Monday through Sunday 5:00 p.m. to 11:00 p.m.
Cocktails
Hours to comply with City of Miami Code and .
Ordinances.
Any changes in these minimum hours of operation
are subject to the reasonable approval of the City Manager.
Nothing herein contained shall be construed to
authorize hours contrary to the laws governing such operations.
11. Conditions Subsequent.
In the event of termination of the Sublease
pursuant to the terms of Paragraph 3 of the Sublease attached
hereto as Exhibit C, this Addendum shall be deemed cancelled
and rescinded and the Company and the City released from all
obligations hereunder as though this Addendum had not been
executed.
12. Pledge of Leasehold Interest.
The Company or its Sublessee may pledge or
subordinate that portion of its leasehold interest as is
subleased for the Restaurant Facility as security for a bona
fide loan from reputable 'enders or lending institutions, but
not beyond t ho term of the Sublease attached hereto as Exhibit
C, subject to the approval of the City Manager, which shall
not be unreasonably withheld, There shah. be
fib pledge of leasehold interest as provided herein finless
Approved in writing by the City M inager, which approval shall
not be unreasonably withheld. Prior to obtaining written
approval, the Company shall furnish to the City Manager` all
agreements and legal instruments pertaining thereto itnvolVing
the pledge of leasehold interest as security.
1A. Right to Cure.
The City hereby agrees to provide not the to any
agency or institution financing improvements on the property,
of the failure of the Company or its Sublessee to comply with
the terms and conditions contained in the Lease Agreement or
the Sublease or to notify the financing agency if the Company
or its Sublessee abandons or vacates the property prior to the
expiration of the term of the Lease Agreement, provided that the
financing agency desiring such notification notifies the City
Manager, in writing, of its desire to receive such notification.
Said notice shall be sent at the same time notice is sent to the
Company as provided in Paragraph 22 of the Lease Agreement. The
City hereby agrees to grant to any financing institution or agency
the right to cure said breach or default within the same time
periods allowed to the Company provided, however, that if the
Company vacates or abandons the demised property prior to the
expiration of the term of this lease the City shall grant to the
financing institution a reasonable time to cure such default.
Notwithstanding the provisions of Paragraph 22 of the Lease
Agreement, the cure of any default or breach of the Company by
the financing agency or institution may operate as an assignment
of the rights of the Company under this agreement if such
provision is required by the financing agreement.
14. Easement to City or Assigns.
if and in the event the City decides to provide
a tram or people -mover system or grant a franchise for same for.
the Dinner Key area, the Company agrees to permit the City or
its assigns to establish a station or terminal for said system
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and to per iit adcess across the property, subjedt to the approvals
Of the Cotinpany and its Sublessee, which approvals shall not be
unreasonably withheld.
If and ih the event the City decides to provide
water borne transportation or to grant a franchise to provide
water borne transportation to and from the Dinner key area to
Other locations in the City, the Company agrees to permit the
City or its franchisee to build sufficient docking facilities for
said water borne transportation in a location subject to approvals
of the Company acid its Sublessee, which approvals shall not be
unreasonably withheld.
It is agreed by the parties hereto that neither
of the above transportation systems will be permitted to
interfere with the normal operations of the marina or the
Restaurant Facility, but rather to enhance these operations by
making them more accessible to the general public.
15. Adjustment of Leased Areas.
After the completion of all improvements contem-
plated under the terms of this lease, the Company and the
Sublessee may agree to the surrender and the City may agree
to accept certain portions of the leased premises for public
parking areas and public landscaped areas.
16. Termination.
(A) The City shall have the right to terminate
this Lease by written notice to the Company and its Sublessee
not less than 180 days prior to the effective date of termination.
On the day of termination, the City shall pay to the Company the
fair market value of its investments, improvements and projected
profits, which fair market value shall have been determined in
the following manner;
(1) 13y direct negotiation between the City and
the Company, or if the parties cannot agree on the
amount to be paid, then
t 2) by arbitration , Whereby the City shall
select ari appraiser and the Company shell select an
appraiser, and these two appraisers shall agree oh
a third appraiser' and the decision of the three br
ahy two oh the sums to be paid after the same has
been fully submitted and argued, shall be bihding
upon the parties hereto, tech of the parties hereto
shall bear all the expenses relating to the services
and activities of their own arbiter and the fees and
expenses of the referee shall be borne equally by
both parties.
(3) In no case shall the amount of the money
that is to be paid by the City be less than the
following:
(a) The total amount of outstanding loans
on the leasehold interest, improvements and
equipment of the Company; plus
(b) The remaining net value of all the
Company's improvements and equipment based on
straight line depreciation over their useful
life; plus
(c) The average annual profit for the
preceding three years based on the Company's
books and records, multiplied by the number
of years which remained on the lease in the
absence of termination.
(B) On the day of termination the City shall also
pay to the Sublessees of the Company the fair market value of
their investments, improvements and projected profits, such
fair market value to be determined according to the same method
as set forth in this paragraph.
(C) At the time of payment of all sums set forth
above, the Company and its Sublessees shall execute agreements
cancelling this Lease and any Subleases hereunder, and shall
execute bills of sale for all personal property to be transferred
on forms satisfactory to the City,
(b) the right of tortnination granted by this
paragraph may shot be ekerci8ec1 by the City prior to ,iune 30, 1999,
and May be e tercisecl only by action of the City Commissioft at a
regularly scheduled public meeting.
17. once a j uere
The time for performance by the parties of
any term, condition or covenant of the Addendum and the
Sublease relating to construction shall be deemed extended
by time lost due to delays resulting from acts of Cod,
strikes, unavailability of building materials, civil riots,
hurricanes or natural disasters, floods, national or labor,
restrictions by governmental authority and any other cause
not within the control of the parties.
THIS ADDENDUM shall be deemed to add certain
terms and conditions in accordance with the provisions of
Paragraph 3 of the Lease Agreement, and said Lease Agreement
shall not be deemed to be repealed, amended, or modified in
any manner whatsoever except as hereinabove specifically
provided.
IN WITNESS WHEREOF, the parties hereto have
individually and through their proper corporate officials
executed THIS ADDENDUM this day of
1977.
THE CITY OF MIAr1I, a Municipal
Corporation of the State of Florida
ATTEST: By
City Clerk
City Manager
GROVE 1:EY I J RINA, INC., a
Florida corporation
ATTEST; By
Secr,:!ta y
(Seal)
pres .dent
Pfi%,AS1Gri�tT
TiiiS SUDIXASt AGRDEMENT is ehtered into as of
19 between CROVS IttY MARINA' INC., a
11orida borporation of 3 8S pan American brive, Miatni,
'1.or L a, as Sublessor ("Sublessor") and CROVt RESTAUPANT,
LTD., a Vlotida limited partnership, as Sublessee ("Sublessee")r
With respect to the following circumstances:
(a) Sublessor is a party to that certain Lease
Agreement dated April 1, 1976 (the "April 1976 Lease")
between Grove Key Marina, Inc. ("Grove Key") and the City of
Miami, a municipal corporation of the State of Florida ("the
City") .
(b) The April 1976 Lease provided for Grove Key
and the City to negotiate for constructing and operating a
restaurant facility, subject to ratification by the City
Commission; and
(c) The City Commission adopted Resolution 77-
authorizing an Addendum to the April 1976 Lease and Resolution
77- authorizing Grove Key to enter into this Sublease
Agreement.
IN CONSIDERATION of the foregoing and the mutual
covenants contained herein, the parties hereto agree as
follows:
1. Description of Premises.
For and in consideration of the mutual promises
herein contained, Sublessor hereby leases to Sublessee, and
Sublessee hereby leases from Sublessor certain real property
(the "Premises") described in "Exhibit A" signed by the
parties hereto and incorporated by reference.
2. Term.
The term shall be thirty years commencing on
June 30, 1979, or the elate Sublessee commences business,
whichever occurs first subject to the provisions of paragraph
3 herein contained.
. r Cpnditiohs,._ SubsegUent.
(A) Suitability of Premises! Sublessor and
Sublessee agree and acknowledge that the obligations of
Sublessee are conditioned upon Sublessee's being able to
secure a building permit and other approvals and assurances
necessary to confirm that Sublessee shall have the right to
construct and operate a first class restaurant and cocktail
lounge on the Premises.
(i) Within thirty days from the date
hereof, Sublessee at its expense shall obtain a complete and
accurate survey of the Premises containing an accurate metes
and bounds description thereof. Within ninety days from the
date hereof, Sublessee shall take steps to confirm with the
appropriate governmental authorities and public utilities
that there are or will be available by not later than the
opening of the restaurant for business sufficient electrical,
water, sewer, gas and telephone utilities to serve the
restaurant.
(ii) Within ninety days from this date
Sublessee shall conduct soil test borings on the Premises to
determine its suitability for the construction of the restaurant,
and Sublessee shall have reasonable access to the premises
for such purpose. Sublessee's obligations are conditioned
upon the Premises being suitable for construction of the
restaurant without necessity for incurring any extra -ordinary
foundation expense which would cause the estimated cost of
the restaurant to be substantially exceeded.
(iii) Sublessor covenants that there is
not to the knowledge of the Sublessor any threatened condemna-
tion action with respect to the Premises or any building
moratorium by any governmental agency or any injunction by
any person under "anti -pollution" laws, ordinances or regulations
tr tithertisor which will have the effect of preventing or
lii ititg the constructioh or operation of a restaurant acid
Cocktail lounge on the premisos, or the Sublessee' s right to
tap into the sewer and water mains serving or bcitig proposed
to terve the t rerises .
() i:'inancing: Sublessee shall promptly
undertake to obtain sufficient financing for construction of
the restaurant on the premises, whether by sale of an equity
participation in.the restaurant operation, by sale of a
revenue bond or otherwise. Sublessee shall use its best
efforts to obtain such financing as soon as practical, but
such financing arrangements shall be closed by Po later than
December 31, 1977. Promptly after such financing arrangements
have been closed, Sublessee shall notify Sublessor thereof,
For purposes of this Sublease, financing shall be deemed
"obtained" only upon Sublessee's obtaining an enforceable
commitment from institutional or other investors having
financial strength sufficient to finance construction of the
restaurant to the extent of $600,000., in the reasonable
judgment of Sublessor. In the event of a default by any
person responsible for furnishing such financing, the
obligations of Sublessee hereunder shall be extended for
reasonable period, not to exceed 90 days, during which the
Sublessee shall use its best efforts to obtain alternate
financing. Upon notice to Sublessor within such period that
such alternate financing cannot be obtained, Sublessee and
Sublessor shall be relieved of all further obligations
hereunder and this Sublease shall thereupon terminate.
(C) Liquor License: Sublessee shall apply
for a liquor license from the appropriate governmental authorities.
This sublease shall be specifically conditioned upon the
issuance of a liquor license to the $ublecsee permitting only
the dispehtinc and sale of alcoholic beverages bh the premises
of tohsumption oh the premises. Sublessee shall use every
reasonable effort grid due diligence to fulfill this condition.
In the event that the Sublessee is unable to obtain the required
liquor license then this Sublease shall be terminated.
4. Use.
Sublessee covenants that it will not, under any
circumstances, discriminate against individuals desiring to
use the facilities and that all facilities located on the
Premises shall be made available to the public, subject to the
tight of the Sublessee to establish and enforce rules and
regulations to provide for the orderly operation and security
of such facilities. The Sublessee shall use the Premises for
the sole purpose of constructing, equipping, furnishing, and
operating a dining facility, cocktail lounge and banquet facility,
and for purposes incidental thereto, and for no other purpose
whatsoever, except upon written approval of the Sublessor and
the City Manager.
5. Improvements of City.
Upon commencement of construction of the
restaurant, the City agrees to commence construction and
installation to the leased premises of the following improve-
ments and to pursue such work with due diligence:
(a) Access road with street lighting
with underground cables with electrical
stubouts for future ornamental lighting, such
ornamental lighting to be installed by the
Sublessee. The access road is to be located
in approximately the location indicated in
Exhibit P attached hereto, commencing at
South I3ayshore Drive providing public access
to the leased premises,
(b) Water supply to the leased premises
tt the property line closest to the Restaurant
in an amount adequate to serVicc the Restaurant
and premises.
(c) Adequate sanitary► sewer.
6. Impr9yements of 8.1b1essee.
Within 30 days after the last of each and every
Of the conditions in OA and 28 have been met, the Sublessee
shall submit to the Sublessor and the City schematic plans
for the Zestautant facility. Sixty days after approval by
the Sublessor and the City of the schematic plans, preliminary
plans shall be submitted. 1'inal working drawings and
specifications shall be submitted 90 days after the Sublessor
and the City's approval of the preliminary plans. After
approval of the working drawings by all appropriate agencies
thirty days will be allowed for the receiving of bids and 15
days to award same and commence construction. Upon award
of bid, the Sublessee shall be permitted 12 months for the
construction of the above -mentioned facilities, which shall
include the following:
(a) A restaurant complex containing a
series of cocktail and dining areas, aesthetically
and tastefully designed, decorated and furnished,
featuring broad use of stone and wood and
effective use of concrete materials assuring
maximum structural safety from the elements
and at the sate time providing top quality
design and eye appeal.
(b) The restaurant facility shall
consist of approximately 12,000 square feet
with not less than 200 person dining capacity
and cocktail lounges serving not less than
125 guests,
c ) A paved parking area with parkifg
spaces in conformity with the ttlanning and
Mining Ordinafice of the City of Miami as it
presently exists or may be attiended. The
restaurant shall have no iess parking spaces
than required under such Ordinance.
(d) Development of the site by the
Sublessee shall consist of a luxurious
park -like setting featuring gardens and
native greenery, with outdoor areas for
restaurant use during favorable climatic
chnditions.
(e) The Sublessee shall be solely
responsible for complete telephone service to
the facility.
(f) The Sublessee shall construct a
walkway along the bayfront portion of the
leased Premises. The public shall have free
and unobstructed use of this walkway during
the term of this Sublease.
(g) All utilities required for the
operation of the facility shall be placed
underground at the Sublessee's expense. Any
electrical service provided to the Premises
shall be placed underground and such service
shall be the responsibility of the Sublessee.
(h) All improvements of Sublessee shall
be solely at Sublessee's coat and expense and
shall be performed in a good and workmanlike
Manner in accordance with sound construction
practices.
(i) The total cost of Sublessees
improvements on the Premises shall not be
leas than ..W)04.000.
(3) In the event bf etitraordinary
circumstances, beyond the control of the
Sublessee, which require additional time for
the Sublessee to meet the construction
schedule herein contained, the Sublessor With
the approval of the City Manager may, at
their discretion, extend the period for
obtaining financing and/or construction for
an additional period not to exceed 120 days.
7. Construction Sonde
Sublessee shall, prior to commencement of construction
on the Premises by Sublessee, furnish Sublessor a surety
bond naming Sublessor and Sublessee as the Principals and
Owners, covering 100% of the cost of constructing the
improvements, including labor and material. Sublessee shall
keep the Premises and such improvements free and clear of
liens for labor and material and shall hold Sublessor and
the City harmless from any responsibility in respect thereto.
8. Owner2hip of Improvements.
All improvements, furnishings, and equipment
constructed or installed on the Restaurant Facility premises
by the Sublessee shall be personal property and the Sublessee
shall have legal title thereto during the term of this
sublease. In the event Sublessee decides to finance the
purchase and installation of certain furniture, fixtures,
and equipment by use of a financing agreement under the
Uniform Commercial Code, a conditional bill of sale, a
leasing agreement, or some other security or title retention
agreement ("Financing Agreement") , the parties acknowledge
that title to the equipment may be in the name of the company
providing the financing ("Financing Agency") for the period
of financing, and that the Financing Agency's right to such
equipment is paramount to the rights of the Sublessor and
the City hereunder. In commotion therewith, the Sublessor
And City agree to e3tecute such waiver and consent forts as
Are customarily required by the Financing Agency. The
Sublessee will use its best efforts to require that the
rihancing Agency notify the Sublessor and the City of any
default by Sublessee under any Financing Agreement, ih the
event of which the Sublessor may either (i) cure the Sublessee's
default, upon which Sublessee shall assign to Sublessor its
Sights under the Financing Agreement; or (ii) require that
the Sublessee replace the equipment removed by the Financing
Agency with equipment of equal or better value. Upon the
termination of the Financing Agreement the Sublessee shall
obtain title to the equipment subject to such Financing
Agreement or shall replace such equipment with comparable
equipment of equal or better value. Upon the expiration or
termination of this Sublease, title to all permanent improvements
constructed on the Premises shall vest in the City of Miami
subject to the rights of any financing agency. Title to all
supplies, furnishings, inventories, removable fixtures and
removable equipment and other personal property shall remain
vested with the Sublessee, and the Sublessee shall have the
right to remove such items, excepting Licenses, from the
Premises unless Sublessee is in default hereunder.
9. Pledge of Leasehold Interest.
The Sublessee may pledge this leasehold interest
as security for a bona fide loan, subject to the approval of
the Sublessor and the City Manager of the City, which shall
not be unreasonably withheld, from reputable lenders or
lending institutions, but not beyond the sublease term. There
shall be no pledge of leasehold interest as provided herein
Unless approved in writing by the Sublessor and the City
Manager,
which shall not be unreasonably withheld. Prior to
obtz ning written approval, the Sublessee shall furnish to
the Sublessor and the City Manager all agreements and legal
instruments pertaining thereto involving the pledge of
leasehold interest as security.
10. tPnt for 1te8taurant YaoilitY.
!Rent- shall be paid by the Sublessee directly to the
City for this restaurant facility on the following basis:
(A) Rent: During the term of this lease the
Sublessee shall pay to the City a minimum annual rent of
Thirty Six Thousand Dollars, payable as follows:
(i) An amount equal to three and one --half
percent (3,5%) of gross sales as herein defined shall be paid
monthly to the City on or before the fifteenth day of the
following month;
(ii) Within fifteen days after the close of
each lease year, the Sublessee shall pay to the City the amount
if any, by which the payments made pursuant to paragraph (i)
above were less than Thirty Six Thousand Dollars.
(iii) During the month in which the
Restaurant Facility commences operation, the first day of that
month shall be considered the day from which each lease year
is calculated. However, the minimum annual rent for the first
lease year shall be reduced prorata for the number of days
during the first month which the Restaurant Facility was
not yet in operation.
(13) Ad Valorem Taxes: In the event that the
Restaurant Facility becomes subject to ad valorem taxation
on the lease -}old interest or the possessory interest attribu-
table to the land owned by the City which is subleased for
the Restaurant Facility, then these ad valorem tares shall
be paid by the Sublessee and that amount shall, be deducted
from the amount which would otherwise be payable in accordance
with paragraph (A) above.
This reduction from tent to the City for ad
Valorem taxes shall not apply to ad valorem taxes attributable
to the building, equipment or fixtures of the Ilestautant
'agility, which shall be paid by the Sublessee.
�• lent beposit.
On the date this Sublease is executed, the Sublessee
shall pay to the Sublessor the sum of $9,000. as advance
payment of the first three months minimum monthly rent due
hereunder. This amount shall be promptly returned to
Sublessee in the event of failure of any of the conditions
subsequent in paragraph 3 above to have occurred.
12. Gross Receipts.
The term "gross receipts" as used herein shall
include all receipts, whether collected or accrued, derived
by the Sublessee from all business conducted upon or from
the Premises, including but not limited to receipts from
sale of food, beverac.es, alcoholic beverages, merchandise,
or from any source whatsoever; excluding the following
items:
(a) Retail sales taxes, excise taxes, or
related direct taxes on the consumer and collected
by Sublessee;
(b) Receipts from the salt of waste or scrap
materials resulting from Sublessor's operations on
the Premises;
(c) Receipts from the sale or trade-in
value of any furniture, fixtures, or equipment
used on the Premises;
(d) The cost or value of :-teals or discounts
given to employees of Sublessee;
(e) The cost or value of food and beverage
used for entertainment and business promotion
purposes by officers And employees of Sublessee;
(f) The atibiint of by gratuities given by
patrons to employees of Sublessee,.
(g) Receipts from sale Of tobacco, ciga:ettea
and cigars; and
(h) Ikevenue from restaurant parking.
13. Records, Accounts, and Statements.
Sublessee shall keep on the Premises, or such
Other place approved by Sublessor and the City, true,
accurate, and complete records and accounts of all sales,
rentals, and business being transacted upon or from the
Premises and shall give Sublessor or Sublessor's representative
access during reasonable business hours to examine and audit
such records and accounts.
Within 30 days after each month of the term hereof
Sublessee shall deliver to Sublessor and the City of Miami a
written monthly statement of the gross receipts for such
month certified by Sublessee to be true, accurate, and
complete.
Within 30 days after each lease year, Sublessee
shall deliver to Sublessor and the City of Miami a written
annual statement of the gross receipts for such fiscal year.
Said statement shall be certified as true, accurate, and
complete by Sublessee.
14. Property Taxes.
During the term hereof the Sublessee shall pay all
taxes of whatever nature lawfully levied upon or assessed
against the Premises and improvements, property, sales,
rentals or operations thereon, including but not limited to
ad valorem taxes, but subject to the provisions in paragraph
10D.
15. Licenses and Permits.
Sublessee shall pay for all licenses, permits and
fees necessary for Sublessee to conduct Sublessoe' s business
on the Premises.
Upon terntiiiatioii bf this Sublease fof any catisc
whatsoever, all licenses, including liquor license, shah.
beobne the property of the tuble8orl its succes5ott or
aSaign8,
16. Vanhei• or ope `ati1 31.
(1) Sublessee shall keep the restaurant and
cocktail lounge reasonably stocked with food and beverage
and reasonably staffed to serve the patrons thereof, and
Sublessee shall maintain a standard of quality of food and
beverage at least equal to similar operations in the area at
reasonably comparable prices.
(2) The facilities to be constructed by the
Sublessee shall be open seven days a week, with the exception
of Christmas Day and Thanksgiving Day, or such other days
that are approved in writing by the City Manager.
(3) Minimum Hours of operation shall be as
follows:
Lunch
Monday through Friday
Saturday and Sunday
Dinner
Monday through Sunday
Cocktails
Hours to comply with City of Miami Code and
Ordinances.
11:00 a.m. to 2:00 p.m.
11:00 a.m. to 3:00 p.m.
5:00 p.m. to 11:00 p.m.
Any changes in these minimum hours of operation
are subject to the reasonable approval of the City Manager.
Nothing herein contained shall be construed to
authorize hours contrary to the laws governing such operations.
17, Conformity to Law.
Sublessee shall comply with all laws, ordinances,
regulations and orders of federal, state, county and municipal
authorities pertaining to the Premises and Sublessee's
improvements and operations thereon.
Sublessee covenants and agrees there will be no
discrimination as to race, color, creed or national origin
in the ,u .e of the s es .
106 NO-h,,t9Pance arkd tIPPdits,
burinthe term hereof, Sublessee, at SUblessee's
eXpense, shall to the satisfaction of the Sublessor, keep
and maintain the Premises and all improVeMehts thereon in
good and sanitary order, condition, and repair, consistent
with the operation of a first-class quality restaurant ih
the Miami area. Upoh expiration or termination hereof,
Sublessee shall surrender and deliver up to Sublessor the
Premises and all permanent improvements thereon in good and
useable condition, ordinary wear and test excepted.
19. Utilities.
Sublessee shall promptly pay for charges for water,
gas, electricity, telephone and all other charges for utilities
which may be furnished to the Premises during the term
hereof including garbage and trash pick-up.
20. Indemnification.
Sublessee shall indemnify and hold harmless
Sublessor and City of Miami from damage and liability
arising from liens or claims of any kind or nature whatsoever
resulting from the use, activities, and operations of
Sublessee on or about the Premises.
21. Insurance.
At all times during the term hereof, Sublessee
shall maintain in full force and effect the following
described insurance covering the Premises and Sublessee's
improvements and operations thereon:
(a) Public Liability Including Products
Liability Insurance:
Not less than $500,000 for death of or injury
to any one person in any one occurance.
Not less tban $1,000,000 for death of or injury
to two or more persons in any one occurance,
Not less than $50,000 property damage.
04 Fire and Extended Coverage;
90% of rep3acement value of all improvementsf
excluding payment, curbs an a foundations,
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Certificates of such ihst.r hde shall be de1iVered
6 Sublessor and the City of Miami prier to the begihn ttt Of
ey eonstruction by Sublessee; such policies shall name
Sublessor and the City of Miami as additional insured and
shall provide that Sublessor and the City of Miattti be given
at least 30 days advance written notice of cancellation or
material modification. All Certificates of Insurance shall
be filed with the City Clerk of the City of Miami, Florida.
The insurance provided for herein shall be written
by a company authorized to do business in the State of
Florida. The insurance company and the amount of coverage
shall be subject to the reasonable approval of the City
Manager, and the proceeds payable under Section (b) hereof
shall be assignable to the Sublessor and the City of Miami
pursuant to Paragraph 22 of this Sublease.
22. Destruction.
In the event of the destruction or damage of the
Restaurant Facility by fire, windstorm or any other casualty
for which insurance will be payable, the insurance proceeds
will be deposited into a joint account of the City, the
Sublessor, the Sublessee and the Financing Agency, if any,
in a bank in Dade County and shall be available to the
Sublessee for the reconstruction or repair as the case may
be of the damaged or destroyed building or other improvements.
The insurance money shall be paid out of said account by the
joint signatures of representatives of the City, the Sublessor,
the Sublessee and the Financing Agency only upon certification
from time to time by a licensed architect or engineer (who
shall supervise the construction and repair) that the amount
of each draw is being applied to the payment of the reconstruction
or repair and at a reasonable cost therefor, It shall be
the duty of the Sublessee, at the time of creating the joint
ban% account, and from time to time thereafter, until the
work of reconstruction and repair has been completed and
paid for try provide the City, the Sublessor acid the Pihandihg
Agency With adequate eVidehce of the fact that at alltunes
the undisbursed portion of the fund ih said joint bank account
S suffici.eht to pay for the Bork of reconstruction and repair
ih its entirety and to procure receipted bills and full and
final Waivers of lien when the said work shall have been
completed and done. The work hereunder, when completed, shall
restore the premises substantially to the condition in which
they existed before such damage or destruction took place.
In the alternative, the Sublessee may, in lieu of a
joint bank account, provide the City, the Sublessor and the
Financing Agency with a surety bond conditioned upon the recon-
struction of said premises and the payment for all work as
provided herein.
The reconstruction improvements shall be or become the
replacement for any security which was lost as a result of the
destruction.
During any period of time which any improvement or
building is rendered untenable for any reason whatsoever, rent
paid by the Sublessee shall be adjusted in accord with the
provisions of Paragraph 25 of the April 1976 Lease.
In the event of destruction or damage to the restaurant
facility which renders the property untenable for a period of
90 days or longer, for which insurance proceeds will be payable,
Sublessee shall have the option to terminate this Sublease, in
which case all insurance proceeds shall be paid into a joint
account of the City, the Sublessor and the Financing Agency, if
any, and reconstruction may proceed as otherwise set forth above.
23. Default.
(a) if Sublessee abandons or vacates the
Premises prior to the expiration of the term hereof, or
(b) If Sublessee fails to make the rent payments
as sct forth herein and said payment is not made within 5 days
after written notice is given to Sublessee, or
(c) if Sublessee fails to perfbrtn in acdOrdande
With any of the other terms attd conditions herein Contained, and
such default is hot cured Within 30 days after written notice is
giVen to Sublessee ot'if Sublessee Within such period has hot
undertaken all reasonable best efforts to cure such default
as soon as reasonably practicable, then Sublessor, at Sublessor's
option and without further notice or demand to Sublessee, may
enter into possession of the Premises and all improvements thereon
and remove all persons therefrom and may either take possession
of all furniture, equipment, and other personal property of
Sublessee found on the Premises or remove such property or any
part of it and store it at Sublessee's expense subject to the rights
of any financing agency. Sublessor may then either terminate this
Sublease or relet the Premises subject to the approval of the City
Manager which approval shall not be unreasonably withheld.
In the event Sublessor elects to relet the Premises for
such rent and upon such terms as Sublessor may be able to obtain,
Sublessee shall continue to pay any differences between the rent
obtained by such reletting and the rent due hereunder.
24. Bankruptcy or Insolvency.
If Sublessee is adjudicated a bankrupt or makes an
assignment for the benefit of creditors or if the leasehold interest
is sold under a judgment, Sublessor shall have the right to
immediately terminate this Sublease and re-enter the Premises
without notice or demand.
This provision shall not apply to any sale made
under the provisions of. paragraph 9.
25. Sublease and Assignment.
Sublessee shall not sublease the Premises or any
part thereof nor assign this sublease to any other person or firm
or amend this sublease without first obtaining Sublessor's and the
City of Miami's written approval therefor, which approval shall not
be unreasonably withhold,
26. Inspection of Promises,
For the purpose of inspection, Sublessor and the
City hereby reserve the right to enter upon any part of the Premises
at any reasonable time during the period the business is to be open
under the temp of this Sublease.
276 Notioest
All notices and rental payments shall be sent to
the parties at the folloWing addresses:
The City of Miami, Florida
P. t . box 130708
Miami, Florida 33133
Sublessor: Grove Rey Marina, Inc.
338S Pan American b.rve
Miami, Florida 33133
Sublessee: Grove Restaurant, btd.
3387 Pan American brive
Miami, Florida 33123
The Sublessor, City of Miami, and Sublessee may
change such addresses at any time upon giving the other
party written notification.
All notices under this lease must be in writing
and shall be deemed to be served when delivered to the
address of the addressee. All notices served by mail shall
be by certified snail, return receipt requested.
Sublessee may designate additional persons for
notification of default.
28. Attorneys' Fees.
Sublessee agrees to pay the cost of collection and
10% attorneys' fees on any part of said rental that may be
collected by suit or by attorney after the same is past due,
or in the event that it is necessary to filo suit to enforce
any of the other provisions of this Sublease, the prevailing
party shall be entitled to costs and reasonable attorney's
fees including appellate attorney's fees.
29. Waiver.
No waiver by Sublessor at any time of any of the
terms or conditions of the Sublease shall be deemed a waiver
at any time thereafter of the Same or any other terms or
conditions hereof.
30. Time of Essence,
Time shall lie of the ossenoe of this Sublease.
31. Tormg_Piric is ...bn ,. g1toees O's.
All of the teams and conditions of the Sublease
tha11 inure to the benefit of and be binding upon the
successors and assigns of the patties hereto.
324 pigns.
No signs whatsoever, including advertising signs,
sha11 be erected or permitted upon the premises until the
plans therefor have first been submitted to the Sublessor
and the City Manager of the City, and they shall approve
said plans for the design and construction thereof in
writing. Sublessee shall be entitled to an easement from
the City on Bayshore Drive for the term of this Sublease, in
the location and having the dimensions shown on Exhibit B
hereto for the purpose of erecting a sign or signs.
33. Adjustment of leased areas.
After the completion of all improvements contemplated
under the terms of this Sublease, the Sublessor and the
Sublessee may agree to surrender to the City and the City
may agree to accept certain portion of the subleased premises
for public parking areas and public landscaped areas.
34. Acceptance of April 1976 Lease.
Sublessee is aware of all provisions of the April
1976 Lease and covenants not to engage in any conduct or
activity or do anything which constitutes a violation of any
of the provisions of that Lease. Conduct or activity which
violates the provisions of the April 1976 Lease shall
automatically constitute a default under the terms of this
Sublease.
35. Force Majure.
The time for performance by the parties of any
term, condition or covenant of the Addendum and the Sublease
relating to construction shallbe deemed etended by time
lost due to delays resulting from acts of Cod, strikes,
unavailability of building materials, civil riots, hurricanes,
flOOds Or natural disasters) national or labor restrictions
by gtVernmental authority and any other cause not within the
Contre51 of the parties.
3N W/TNES8 WERE0P0 the parties have executed this
SUblease on the date first above written.
Corporate Seal
COVE REY MARINA) INC.)
Sublessor
ty:
ATTEST:
President
Secretary
GROVE RESTAURANT, LTD.,
Sublessee
By:
By:
General Partner
-19-
General Partner