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HomeMy WebLinkAboutExhibitFIFTH AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND ALIGNED BAYSHORE MARINA LLC This Fifth Amendment to Lease Agreement (this "Fifth Amendment"), effective as of the day of , 2017, by and between the City of Miami, a municipal corporation of the State of Florida (the "City" and "Landlord"), and Aligned Bayshore Marina LLC, a Florida limited liability company (the "Company"), for purposes of amending that certain Lease Agreement between the City and the Company, entered into as follows: RECITALS WHEREAS, that certain Lease Agreement, was originally entered between the City and Bayshore Properties, Inc. ("BPI"), on September 20, 1985, and authorized by City Commission Resolution No. 85-717, adopted July 18, 1985, with related ballot language approved by referendum of voters on August 13, 1985; and WHEREAS, that certain Lease Agreement was assigned to Grove Marina Market, Ltd. ("GMM") by virtue of that certain Assignment of Lease dated March 16, 1986, that certain Acceptance of Assignment of Lease dated March 14, 1986, and that certain Consent by and between Landlord and BPI dated March 13, 1986; and WHEREAS, that certain Lease Agreement was amended by that certain Memorandum of Understanding dated August 30, 1991, that certain Memorandum of Understanding dated September 10, 1993, as modified by Correction of Scrivener's Error, recorded on February 24, 1994, in Official Records Book 16258, at Page 494 of the Public Records of Miami -Dade County, Florida and that certain Amendment to Lease Agreement dated November 14, 2001; and WHEREAS, that certain Lease Agreement was further assigned by GMM to Bayshore Landing, LLC ("Landing") by that certain Assignment and Assumption of Master Lease dated August 20, 2004 and that certain Consent to Assignment dated August 23, 2004; and WHEREAS, that certain Lease Agreement was further amended by that certain Second Amendment to Lease Agreement between the Landlord and Landing, dated August 20, 2004; that certain Memorandum of Lease dated August 20, 2004 recorded in Official Records Book 22606 at Page 2426 of the Public Records of Miami -Dade County, Florida; that certain Third Amendment to Lease between Landlord and Landing dated December 27, 2004; and that certain Fourth Amendment to Lease between Landlord and Landing dated as of February 26, 2015; and Page t of 19 WHEREAS, that certain Lease Agreement was further assigned by Landing to the Company by that certain Assignment and Assumption of Master Lease dated April 8, 2015 and that certain Consent to Assigmnent dated April 15, 2015; and WHEREAS, pursuant to Section 29-B of the City Charter entitled "City Owned Property Sale or Lease -Generally", and Subpart A, Section 3(f)(iii), entitled "Powers", the City has ordered and obtained two (2) independent appraisals affirming the fair market value of this Amendment; NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and in consideration of other valuable consideration, the parties covenant and agree as follows: Incorporation of Recitals: The recitals and findings set forth above are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Amendment. 2. Amendment Effective Date: The effective date of this Amendment shall be the first day of the first full calendar month following the date upon which the last of all the conditions precedent to the Amendment Effective Date in Section 5 of this Amendment have occurred (the "Amendment Effective Date"). The date the Amendment Effective Date is achieved shall be memorialized in the form attached as Exhibit A-1. The Lease Agreement is hereby amended as follows: A. A new Section 1 C is hereby added to the Lease Agreement as follows: Section 1 C. No Liability for Submerged Lands Lease and State Waiver of Deed Restrictions: Pursuant to the Lease Agreement, the City has leased part of the Property's submerged land ("Submerged Lands Lease") from the State of Florida (the "State") and subleased such land to the Company with the State's approval ("Submerged Lands Sublease"). Additionally, the City acquired the other parcel of the Property's submerged lands pursuant to a deed which carries a Waiver of Deed Restriction from the State relating to the Company's uses of such submerged City parcel ("Waiver of Deed Restriction"). The State may renew the Submerged Lands Lease and Waiver of Deed Restriction at its sole option; furthermore, the State may consent to and approve the Submerged Lands Sublease at its option. Should the State opt to not renew the Submerged Lands Lease and Waiver of Deed Restrictions, or not consent to and approve renewal of the Submerged Lands Sublease, or otherwise cancel such Submerged Lands Lease and Waiver of Deed Restrictions, or otherwise cancel such consent to and approval of the Submerged Lands Sublease, then the City shall not be liable to the Company for any losses, liabilities, costs, expenses, or damages which may occur as a result thereto unless the State cancels the Submerged Lands Lease and the Waiver of Deed Restrictions as a result of a default thereunder by the City which is not caused by a default by the Company under the Lease Agreement. The Company shall be responsible for securing all submerged Page 2 of 19 lands fees, costs, permits, consents and approvals from the State. Notwithstanding the foregoing, the City shall use best efforts to assist the Company in pursuing the Submerged Lands Lease, Waiver of Deed Restrictions, and Submerged Lands Sublease provided the City shall not be deemed a guarantor of the Company in any liabilities and costs related to the Submerged Lands Lease, Waiver of Deed Restrictions, or Submerged Lands Sublease. B. A new Section 2A is hereby added to the Lease Agreement as follows: Section 2A. Lease Extension Tenn: The tenn of this Lease Agreement shall be extended for a period of thirty-two (32) years, commencing on June 1, 2035 (which is the day following the current expiration date of the Lease Agreement: May 31, 2035) and ending on May 31, 2067. C. A new Section 2B is hereby added to the Lease Agreement as follows: Section 2B. Renewal Options: Subject to approval of this Amendment by a majority of the voters of the City in the Referendum set forth in Section 4 below; and further provided the Company is not in Default of the Lease as amended or any other Agreement with the City or indebted to the City for moneys, the Company shall have the option to renew the Lease Agreement for two (2) additional terms often (10) years each. Each renewal term shall be subject to the same terms and conditions as provided for during the initial teen of the Lease Agreement, except that no additional referendum shall be required for the exercise of the renewal terms. The Company shall provide written notification to the City, no less than six (6) months prior to the commencement of either of the two (2) renewal terns and failure to timely provide such written notification shall effectuate an automatic waiver of such renewal. D. Section 6 is hereby amended and restated as follows: Section 6. Redevelopment Plans: The Company shall be solely responsible for the construction and cost of all improvements to the marina, building, and restaurant located at the Property, including but not limited to labor, supplies, materials, equipment, professional services, any surrounding or adjacent municipal, governmental, regulatory requirements, land development, building, electrical, marine related or similar permits, consents, and approvals or any utility and telecommunications or computer hook-ups. The improvements are more particularly described in Exhibit A- 3, attached hereto. All improvements described in Exhibit A-3 shall be performed at the Company's sole cost, expense, and risk. E. Section 13(IV) is amended to include for, clarification, that any pass through charges such as but not limited to electricity charges or common area maintenance fees collected by the Company or sublessees are included in the definition of Gross Sales and/or Gross Receipts. Page 3 of 19 F. New Section 13(VI) through 13(IX) are hereby added to the Lease Agreement as follows: Section 13(VI). Additional Rent: Notwithstanding the Consideration detailed in paragraphs I -- III, above, the Company also agrees to pay the City a minimum of the greater of Two Hundred Thousand Dollars ($200,000) per Lease Year, or one and three quarters percent (1.75%) of Gross Receipts derived from the Property as Additional Rent due to the City. Additional Rent shall not be subordinated by, pledged, or encumbered by any other fees or expenses related to the Property or Lease Agreement. Additional Rent shall be paid in the same manner as the rents detailed in paragraphs [I — II1, above. The Company shall commence to pay Additional Rent on January 1, 2019, based on the sales of the prior Lease Year. Section 13(VII). Minimum Guaranteed Rent: (i) October 1, 2018 — December 31, 2018. For each month of the period commencing on October 1, 2018 and ending on December 31, 2018, the Minimum Annual Guaranteed Rental payable pursuant to the Lease shall be one -twelfth (1/12th) of the Minimum Annual Guaranteed Rental calculated in accordance with Section 13(1) of the Lease. (ii) January 1 2019 — September 30, 2019. For each month of the period commencing on January 1, 2019 and ending on September 30, 2019, the Company guaranties that the "Total Rent" (as defined in clause (iv) below) payable pursuant to the Lease shall be at least one -twelfth (1112th) of One Million Five Hundred Thousand Dollars ($1,500,000). (iii) Commencing October 1, 2019. Commencing with Lease Year 2020 (i.e., the period commencing on October 1, 2019 and ending on September 30, 2020), the Company guaranties that the "Total Rent" (as defined in clause (iv) below) payable pursuant to the Lease for each Lease Year shall be at least One Million Five Hundred Thousand Dollars ($1,500,000). (iv) Total Rent. For purposes of this Lease, "Total Rent" for any period shall mean and include (without limitation) the rent payable for such period pursuant to Section 13(I), all fixed and percentage rent payable pursuant to Sections 13(I1) through 13(1II), all Additional Rent payable pursuant to Section 13(VI) and the contribution paid by the Company pursuant to Section 13(IX). Page 4 of 19 Section 13(VIII). Additional Rent Report. Along with the payment of the Additional Rent, the Company shall provide the City with a statement of Gross Sales specifically detailing the Gross Sales received for the immediately preceding Lease Year audited by a Certified Public Accountant. Section 13(IX). Low Income Housing Renovation Special Fund. Commencing in Lease Year 2019 (i.e., the period commencing on October 1, 2018 and ending on September 30, 2019) and for each Lease Year thereafter, to the end of the remaining lease term, including any extension options, the Company agrees to pay the City in a lump sum on September 1 of each Lease Year, Twenty -Five Thousand Dollars ($25,000) per Lease Year for the use of a fund to be established by the City, to be known as the Low Income Housing Renovation Special Fund or such other name the City shall designate for such fund. G. Section 21 of the Lease is hereby amended to read as follows: Section 21. Insurance: The Company shall maintain during the term of this Lease Agreement the following insurance subject to the approval of the City of Miami, Department of Risk Management: (a) Property Insurance: "Special Form" property insurance form with extended coverage against loss or damage by earth movement, named stone, windstorm, hail, and flood. Amounts: Such coverage shall be in the following amounts: Replacement cost on the building, leasehold improvements (exclusive of foundation and excavation costs), lessee's alterations, improvements, fixtures, equipment, trade fixtures and floor coverings, including the expense of removal of debris as a result of damage by an insured peril (collectively, the "insured property") on the property with a maximum deductible of one percent (I %) of the insured value on all perils other than windstorm and five percent (5%) of the insured value for the peril of windstorm and hail, earth movement, flood and named storm, and other sub limits or coverage enhancements as applicable. Such perils, including windstorm and flood insurance, is to be provided to the extent commercially available. Notwithstanding the foregoing, the parties acknowledge and agree that coastal properties are often precluded from being insured by private insurers and that any casualty and windstorm insurance may have to be written through the Florida Joint Underwriters Association and/or other governmental or other insurance pool which may include certain prohibitions such as no replacement cost coverage. (b) Business Interruption Insurance: "Special Fonn" coverage with limits not less than the minimum annual rent, remuneration or ordinary Page 5 of 19 payroll and the debt service payments with 180 days extended period of indemnity. City shall be listed as loss payee on this coverage. (c) Equipment Breakdown (Boiler and Machinery): Insurance covering repair and replacement of all boilers and machinery serving or benefiting the leasehold improvements. The policies of insurance shall be endorsed to provide use and occupancy coverage for the leasehold improvements in such amount as may be reasonably acceptable to the City. The City shall be listed as loss payee on this coverage. (d) Commercial General Liability Insurance: Commercial General Liability insurance on a commercial general liability coverage form with "broad form" coverage, or its equivalent, including contingent and contractual liability, products and completed operations, personal and advertising injury, and premises/operations coverage, including parking lot coverage against sums adjudicated to be payable by the insured on account of bodily injury, death or property damage occurring in or about the property. This coverage should be written on a primary and non- contributory basis. Amounts: The limits of such coverage shall not be less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate single limit for bodily injury and property damage. The City must be listed as an additional insured on this coverage. (e) Marine Operators Legal Liability: Insurance with limits not less than One Million Dollars (1,000,000). The City must be included as an additional insured and loss payee. (f) Property Coverage Docks and Piers: All Risk including Windstorm, Hail, and Flood subject to replacement cost with a maximum deductible of five percent (5%) on all perils to the extent and as commercially available. Notwithstanding the foregoing, the parties acknowledge and agree that coastal properties are often precluded from being insured by private insurers and that any casualty and windstorm insurance may have to be written through the Florida Joint Underwriters Association and/or other insurance markets. City should be listed as loss payee on this coverage. (g) Automobile Liability: Automobile Liability insurance covering all owned automobiles, including hired and non -owned auto exposures used in connection with operations covered by this lease. The policy or policies of insurance shall contain limits not less than Five Hundred Thousand ($500,000) combined single limit for bodily injury and property damage. The City shall be named as an additional insured on this coverage. The requirements of this provision in ten -ns of owned autos will be waived upon Page 6 of 19 submission of a written statement from the Company that no automobiles are used to conduct business. (h) Worker's Compensation: Statutory Worker's Compensation and occupational disease coverage in the amounts and types required by Chapter 440, of the Florida Statutes. (i) Umbrella: The Company shall further maintain an umbrella policy with limits of Three Million Dollars ($3,000,000) per occurrence and policy aggregate. This coverage should be in excess over all applicable liability policies contained herein, including liquor. 0) Liquor: The Company shall further maintain liquor liability coverage with limits of S 1,000,000 per occurrence. The City shall be listed as an additional insured on this Coverage. (k) Required Policy Provisions: All policies of insurance required to be provided and obtained may not be amended, cancelled, or materially changed, unless such actions shall be required by the insurance carrier, without thirty (30) days written notice to the City of Miami. Said notice should be delivered to the City of Miami, Division of Risk Management, Attention: Director, 444 S.W. 2"d Avenue, 9t" Floor, Miami, Florida 33130, with a copy to City of Miami, Department of Real Estate and Asset Management, 444 S.W. 2" d Avenue, Miami, Florida 33130, or such address that may be designated from time to time. (1) Delivery; Current evidence of insurance coverage shall be supplied to the City of Miami Department of Risk Management with a copy to City of Miami Department of Real Estate and Asset Management at the commencement of this Agreement, and a new evidence of insurance coverage 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 of Florida, with the following qualifications as to management and financial strength: the company 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 Rating Guide, or the company holds a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and be a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the City or by its representatives, which indicates less coverage than required, does not constitute a waiver of the Company's obligation to fulfill the insurance requirements hereof The insurance coverage required shall include those classifications as listed in standard liability insurance manuals which most nearly reflect the operations of the Company. Page 7 of 19 (m) Right to Amend_ Insurance Requirements: The City reserves the right to reasonably amend the insurance requirements according to usual and customary standards in the insurance industry as circumstances dictate in order to protect the interest of the City in this Lease Agreement, provided that such requirements are uniformly imposed on comparable City -owned waterfront properties. H. Section 22 is hereby amended and restated as follows: Section 22. Indemnification: The Company shall indemnify, defend (at the Company's sole cost and expense), save and hold harmless the City, its officials, employees, instrumentalities, agencies and agents, from and against any and all claims, actions, causes of action, protests, proceedings, damages, liabilities, expenses or proceedings of any nature arising by virtue of this Fifth Amendment; in connection with the approval, granting or recommendation for approval of the Fifth Amendment; in connection with compliance with any applicable laws, codes, ordinances, rules or regulations; in connection with the loss of life, personal injury or damage, loss to or destruction of property arising from or out of any occurrence in, upon or at the Property, or the occupancy or use by the Company, its agents, servants, representatives, and concessionaires and subtenants of the Property, or any part thereof, in connection with any claims related to equipment, material, supplies, services, furnishings, labor, services, or materials for any improvements or modifications to the Property made by the Company or its agents, contractors, servants and representatives; in connection with any ad valorem, income, sales, use, or any other tax, other governmental levy, or imposition made by virtue of occupancy of the Company; in connection with any occurrence in, upon or at the Property by virtue of the occupancy of the Company; or by virtue of any workers compensation, labor, employment, wage, benefit, payroll, or similar claims made by any employee of the Company; or any claim relating to any enviromnental violation, hazardous or toxic materials attributable to the Company or for any violation of any law, codes, rules, regulations, resolutions or order attributable to the Company, its representatives, agents or employees, excluding only claims, actions, damages, liability or expenses arising solely and exclusively from the gross negligence or willful misconduct of the City, its officials, or employees. Each party shall pay all costs, expenses and bear their own reasonable attorneys' fees that may be incurred or paid by each party in any action between them to enforce these provisions, providing, however that the court may award court costs to the prevailing party. The indemnification shall commence from the time the Company is recommended for award and shall continue to through the entire term of the Lease, as amended, and shall survive the cancellation or expiration of the Lease. This indemnification is inclusive of administrative, quasi-judicial, regulatory, litigation, bankruptcy and appellate proceedings. Page 8 of 19 I. A new Section 25A is hereby added to the Lease Agreement as follows: Section 25A. Capital Improvements: The Company shall set aside funds to complete major capital improvements and property improvements above and beyond any repairs and maintenance as more specifically described in Section 25. As the Lease is on municipal property all improvements shall be bonded as required by section 255.05, Florida Statutes and the City Code, as amended. The City shall be named an additional obligee on all such bonds which shall always be maintained on file and be subject to the review and approval of the City Risk Management Director and City Attorney as to legal form. The amounts required to be set aside and the years in which they must be spent are as follows: Lease Year Annual Amount - greater Total To Be Spent In of: Lease Year 6 through 15 $100,000 10% of Average $1,000,000 16 Repair Costs 26 through $100,000 10% of Average $1,000,000 36 35 Repair Costs 51 through $125,000 10% of Average $1,000,000 59 58 Repair Costs 61 through $125,000 10% of Average $1,000,000 69 68 Repair Costs Total $4,000,000 The Company shall set aside, at least, an amount equal to amount specified above or ten percent (10%) per year of Average Repair Costs' into a separate reserve account (until 100% of Average Repair Costs is deposited), in order to fund capital expenditures for the Property ("CapEx Fund"), which is required to be capitalized as an improvement to the Property. The CapEx Fund shall be applied toward major repairs and improvements to both upland components and submerged land marina components, including but not limited to: substantial mechanical and structural repairs, structural improvements, purchases, upgrades, and commercially standard "Average Repair Costs" shall mean the average of the previous five (5) years' "repair and maintenance" line -item costs. Average Repair Costs shall be calculated in order to determine the annual amount due to the CapEx Fund. The Average Repair Cost is subject to being reviewed, inspected, and audited by the City, its agents or representatives as requested, but in no event shall the total amount of CapEx reinvested in the Property in each of the Lease Years sixteen (16), thirty-six (36), fifty-nine (59), and sixty-nine (69) be less than $1,000,000. Page 9 of 19 general improvements, and/or repairs. The CapEx Fund shall not be applied to minor repairs due to regular wear and tear. The CapEx Fund for each period specified above must be spent in the manner required in the preceding paragraph during the specified Lease Year. The CapEx Fund for Lease Years 51 through 58 and 61 through 68 are subject to the Company exercise of its First and Second Renewal Terms, respectively. From and after the Amendment Effective Date, each "Lease Year" shall be deemed to commence on the Amendment Effective Date and on each anniversary thereof. The Company shall maintain financial accounting and "scope of work" records together with any corresponding documentation of amounts placed and amounts used from the CapEx Fund, which shall be subject to review by the City. The Company agrees to maintain the Property in a "best -in -class" condition as compared to comparable marina properties in the City of Miami, Florida, and to consider capital improvements to the Property on a regular basis, but no less than the manner specified herein. J. A new Section 31 A is hereby added to the Lease Agreement as follows: '- "Transfer" means: Section 31A. Transfer Fee: Should the City consent to any Transfer, the City shall be entitled to one percent (1.00%) of the Gross Sale Amount (as hereinafter defined), if the Lease Agreement is assigned or otherwise transferred or sold within Lease Years one (1) through five (5); and, the City shall receive one and one half percent (1.50%) of the Gross Sale Amount if Transferred or sold within Lease Years six (6) through ten (10); and the City shall receive two percent (2.00%) of the Gross Sale Amount if Transferred or sold within Lease Years eleven (11) through fifteen (15), and the City shall receive three percent (3.00%) of the Gross Sale Amount if Transferred or sold within Lease Year sixteen through the end of the Lease Tenn ("Transfer Fee"'-). The same Transfer Fee allocation of three percent 1. Any total or partial sale, or assignment of the Company's business or leasehold estate or any contract, including by entering into a sublease, assignment, transfer agreement, concession agreement, etc. 2. Any transfer of more than forty-nine percent (49%) of the stock of the Company or of the stock of any owner, other than an owner whose shares are publicly traded, if the transfer results in a transfer of more than forty-nine percent (49%) of the beneficial ownership of the Company; Transfers by non -sponsor investors shall be excluded. 3. Any merger, consolidation or sale or lease of all or substantially all of the assets of the Company or of any owner, other than an owner whose shares are publicly traded. Page 10 of 19 (3.00%) of the Gross Sale Amount shall apply to the First Renewal Term and the Second Renewal Term. The Transfer Fee shall apply to all transfers other than those made to affiliated or subsidiary business entities. For purposes hereof, and as is provided in the City's other waterfront leases, the Gross Sale Amount shall mean the gross sale proceeds actually received by the Company upon the consummation of any Transfer. The Company shall furnish to the City a copy of a financial statement, a closing statement, a Transfer document, or other similar documentation in connection therewith as shall reasonably demonstrate the Gross Sale Amount. The City reserves the right to examine the Company's books and records in connection with determining the Transfer Fee. The Company additionally agrees to the applicability of the audit, inspection and resolution of contract dispute provisions set forth in Sections 18-101, 18-102, and 18-105 of the City Code, as amended, which are deemed as supplemental provisions to this Section and as being incorporated by reference herein. The Transfer Fee shall be perpetual and shall apply to any successive Transfer procured by the terms of the Lease Agreement for as long as the Lease Agreement is active, including modifications and extensions, if any. K. A new Section 31 B is hereby added to the Lease Agreement as follows: Section 31 B. Refinancing Fee. If the Company engages in any refinancing with respect to the Property, then the City shall have the right to participate in such refinancing in an amount equal to one percent (M) of the Loan Proceeds (as hereinafter defined). For purposes of this Section 31B, the "Loan Proceeds" shall mean the net proceeds available to the Company from any refinancing after deduction of (i) all third party costs and expenses incurred by the Company in connection with the refinancing transaction, including, without limitation, all fees, costs and expenses imposed by the Company's lender and any rating agencies, as well as title and survey costs, escrow fees, appraisal costs, consultant costs and attorneys' fees and costs and (ii) all amounts required to repay then -existing debt being refinanced. The Company shall furnish to the City a copy of a closing statement or other similar documentation in connection therewith as shall reasonably demonstrate the amount of the Loan Proceeds. The refinancing fee shall be perpetual and shall apply to all refinancings consummated for as long as the Lease Agreement is active, including modifications and extensions, if any. Notwithstanding contrary provisions, this Section 31B shall not apply to the Company's first refinancing following the Amendment Effective Date. 4. Grants of mortgage liens and security interests or any transfer by foreclosure or in lieu of foreclosure are excluded. Page 1l of 19 4. Referendum: Pursuant to Sections 29-B and 3(f)(iii) of the City Charter, this Amendment requires approval by a majority of the voters of the City. if the Amendment is rejected or the proposed transaction does not satisfy the requirements set forth in Section 29-8, and/or 3(0(iii), this Amendment shall be automatically terminated without the requirements of any further action. In the event of such a termination, the Company shall not have any vested, legal, property, commercial, contractual, or equitable rights, or title or interest or claims in the Property - other than those conferred by the existing Lease - or a claim or recourse upon the City, its officials, or employees for any expenses, costs, fees, or other liabilities or debts incurred in this process. The Company hereby covenants not to sue the City and releases the City, its agencies, instrumentalities, officials and employees from any such claims or actions. S. Conditions Precedent: Conditions Precedent to the Amendment Effective Date, as such terms are referenced herein shall be (i) the prior approval of this Amendment by the City Commission, (ii) the referendum approval by the majority of the electors of the City voting in that election, approving this Amendment, authorizing the amendment of Section 29-B of the City Charter entitled "City -Owned Property Sale or Lease -Generally" to authorize the City Commission by a four-fifths (4/5ths) affirmative vote to waive competitive bidding and to execute this Amendment to extend the tern of the Lease Agreement pursuant to this Amendment, (iii) the execution of this Amendment by the City and the Company and (iv) the expiration of any appeal period(s) associated with the approval and referendum so that the extension is final and non - appealable. Failure of any Condition Precedent to occur will automatically void and nullify this Amendment without the necessity of further action. The Company shall have no recourse against the City relative to the failure of any Condition Precedent. Approval by the City Commission, including time for signing and implementing the formal agreement, shall be at the discretion of the City Commission. The City Commission may withhold, delay, or condition such approval at its discretion. 6. Cancellation for Convenience: The City Manager may administratively cancel this Amendment prior to the earlier of the City Commission approving this Amendment or approval by a majority of the electors of the City of Miami for any or no cause or for convenience by giving the Company thirty (30) days written notice of its intent to cancel. The Company shall have no recourse as to such cancellation. Page 12 of 19 7. No Implied Modifications: Except as specifically provided herein, all the terms and provisions of the Lease Agreement, as amended to date, shall remain in effect. IN WITNESS HEREOF, the parties hereto have executed this Fifth Amendment to the Lease Agreement on the day and year first above written. [Remainder of page intentionally left blank; signature page to follow.] Page 13 of 19 ATTEST: Uln Todd B. Hannon City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: CITY OF MIAMI, a municipal corporation of the State of Florida Daniel J. Alfonso City Manager APPROVED AS TO LEGAL FORM & CORRECTNESS: By: By: Ann -Marie Sharpe, Director Risk Management Department Page 14 tnf 19 Victoria Mendez City Attorney Signature:. Name: Signature: Name: Attest: Company Secretary ALIGNED BAYSHORE MARINA LLC, a Florida limited liability company, acting by and through its Manager, to wit: By: ALIGNED BAYSHORE HOLDINGS LLC, a Florida limited liability company, acting by and through its Manager, to wit: Page 15 of 19 By: ALIGNED BAYSHORE MANAGING MEMBER LLC, a Florida limited liability company by and through its Manager, to wit: By: HJK FIFTH AVENUE LLC, a Florida limited liability company Jose Hevia, Managing Member EXHIBIT A-1 All Conditions Precedent to the Amendment Effective Date, as such terms are referenced herein, have been achieved as of Hereinafter, the foregoing date shall be the Amendment Effective Date, Page 16 of 19 W.4.I I WFEW Improvements. The planned capital improvements and operating improvernents totaling minirnurn of $7,500,000 (seven million and five hundred thousand dollars) are generally categorized to the marina, building and Property, and restaurant. Below is abullet point sumrnary within each ofthe three (3) categories. Please note that some of these improvements have already been completed or are currently in progress. Referenced rental rates are not a guarantee of future rental rates. Rental rates vary up or down according to market conditions. Marina A. Capital Improvements i. Dredging the westerly portion of the marina to allow for re -activation of wet slips, fin ther expanding the use by transient visitors and customers to the Property ii. Demolition of existing marina, not designed, nor equipped to deal with anticipated sea level rise. Demolition will include, but not limited to, removal of antiquated concrete fixed in-place docks, piers, and support piles, obsolete and inefficient metal pedestal units, ridged fixed utilities mounted below marina docks, including water, electrical, and fire suppression distribution, lighting, and dock surfaces iii. Installation of a new state of the art "U -Channel Design" reinforced precast concrete fixed dock system; that will employ the use of FDOT rated MMFX steel reinforcement that is three times the strength, and twice the corrosion resistance of conventional steel reinforcement, environmentally friendly, engineered for durability and the strength to meet the challenges of stronger king tides and rising water levels. New U -Channel fixed concrete docks will be installed at the highest allowable elevation to enhance storm and tidal surge protection, and maximize natural sun light exposure to bay bottom to encourage growth of sensitive bay habitat. iv. Installation of new "flexible" utilities infrastructure including water, electrical, and fire suppression distribution systems, utilizing the latest material and technology. New Utilities will be installed inside of a `utility chase", completely protected on three sides by the reinforced precast concrete U -Channel dock. High strength, removable Micro -Mesh panels will be installed on top of the utility chase, flush with the top of New U -Channel dock, creating a safe and attractive walking surface. Micro -Mesh panels are non-conductive, Fire resistant, UV resistant, ADA approved, waterproof, highly slip -resistant, and because they are lightweight and easy to remove, allow for safe and efficient access to utilities for service and maintenance. v. Installation of new, individually metered power pedestals that are UL Rated, and meet ADA, NEC, NFPA and NEMA codes. New power pedestal will be built of non -rusting, non-conductive, UV protected poly -carbonate cases, enhancing safety and efficiency vi. Installation of new "green" renewable energy solar powered dock lighting, efficient gate and security monitoring systems. vii. Installation of 19 new electrical boat lifts of 28,000 lbs., 32,000 lbs., and 40,000 lbs., which will increase specific per -slip income to the City by approximately 20%, offering greater docking choices to marina customers, and proactively enhance water quality by minimizing boat -bottom surface area in contact with water.Installation of Page 17 of 19 44 new piles to allow for 22 new "stern -to" docking positions, offering greater docking choices to marina customers, and increase dockage income to the City in this area by approximately 40% B. Operating Improvements i. Working with State of Florida to achieve Clean Marina designation in 2017, including iunplementation of best management practices that address waste management, stone water control, and emergency preparedness ii. Implementation and use of the new innovative and sustainable "Seabin" water born debris removal system iii. Mark to market marina slip rental rates for an overall increase of income to the City of approximately 11 % iv. Irnplement "slip size pricing" versus "length of vessel pricing" discipline (a 36 foot vessel occupying a 40 foot slip will pay based on the slip size rather than the vessel size), to better optimize the potential of every lineal foot of dockage II. Building & Property A. CapitalItnprovements i. Complete remodeling of building interior common areas ii. Design and reconstruction of new elevator lobby for increased efficiency in. Demolition of monumental staircase and new construction of first floor and second floor rentable area, which will increase net rentable area approximately 1,500 square feet with no change to the existing building's footprint. iv. Design and construction of new buildung facade, main building entrance, new building lobby, signage, and lighting v. Design and new construction of new building Paseo Terrace along the southerly fagade of the building approximately 25 feet wide, which will activate the 45 foot wide Paseo with uninterrupted views from South Bayshore Drive to Biscayne Bay vi. Demolition of the existing Dockmaster building in order to provide uninterrupted views of Biscayne Bay, increase public access, and provide for greater waterfront walking area vii. Remodeling and reconditioning of parking lot surfaces, lighting, signage and landscape B. Operating Improvements i. Mark to market ground floor rental rates, and second floor new tenancy and renewals to be more in line with market rental rates in the general area ii. Implement discipline of charging common area factor C `CAF") on all building leases of 8% on the ground floor and 15% on the second floor iii. Implement consistency of across the board operating expense charges allocated amongst all tenants iv. Introduce new customer dining options via the introduction of new tenant, Sushi - Maki, which is set to open in April 2017. III. Monty's Restaurant A. Capital Improvements i. hlstall new Micros/ME FOS system ii. Remove and replace exterior flooring surfaces in. Remove and replace new exterior table tops Page 18 of 19 iv. Remodel and reconfigure interior restaurant area to accommodate new catering initiative B. Operating Improvements i. Hire new Purchasing Manager ii. Hire new Director of Restaurant Operations iii. Itnplernentation new cash management systems and procedures iv. Streairiline menu and introduce new offerings including "fann to table" items and multiple "health wise" salad choices Page 19 of 19