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
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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
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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.
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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).
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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
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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
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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.
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(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.
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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.
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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.
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(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.
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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.
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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.]
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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
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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:
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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,
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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
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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
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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
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