HomeMy WebLinkAboutExhibitAMENDMENT NO. 5 TO LEASE BETWEEN THE CITY OF MIAMI AND MIAMI
OUTBOARD CLUB, INC.
This Amendment is entered into this day of
, 2017,
("Amendment") by and between the City of Miami, a municipal corporation of the State
of Florida ("Lessor"), and Miami Outboard Club, Inc, a non-profit corporation ("Lessee")
for the purpose of further modifying that certain Lease between the Lessor and Lessee
dated June 14, 1996 ("Lease"), as amended, as follows:
WHEREAS, Lessor leased to Lessee a portion of Watson Island for a term of
twenty years commencing on April 1, 1996 and expiring on March 31, 2016 with the
option to renew for two (2) additional five (5) year periods; and
WHEREAS, the parties amended the Lease on December 5, 2000 ("Amendment
#1), June 6, 2005 ("Amendment #2"), May 24, 2011 ("Amendment #3"), and June 4,
2013 ("Amendment #4"); and
WHEREAS, Lessee desires to further amend the Lease to extend their current
term in order to obtain financing to perform substantial improvements to the Lease
Property.
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:
1. 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 5 Effective Date: The effective date of this Amendment
shall be the first day of the first full calendar month following the execution of this
Amendment by Lessee and Lessor. (the "Amendment 5 Effective Date")
3. The Lease Agreement is hereby amended as follows:
A. A new Section 2A is hereby added to the Lease as follows:
2A. Lease Extension Term: The Additional Terms of the Lease
are hereby exercised and the Term of this Lease shall be extended
for a period of twenty-five (25) years, commencing on April 1, 2026
(which is the day following the current expiration date of the
Additional Terms: March 31, 2026) and ending on March 31, 2051.
B. A new Section 2B is hereby added to the Lease as follows:
2B. Renewal Options: Provided the Lessee is not in Default of
the Lease as amended or any other Agreement with the Lessor or
indebted to the Lessor for moneys, the Lessee shall have the
option to renew the Lease for two (2) additional terms of ten (10)
years each. Each renewal term shall be subject to the same terms
and conditions as provided for during the initial term of the Lease.
The Lessee shall provide written notification to the Lessor, no less
than six (6) months prior to the commencement of either of the two
(2) renewal terms and failure to timely provide such written
notification shall effectuate an automatic waiver of such renewal.
C. Section 4.1 of the Lease is hereby amended to add the following
paragraph to the end of the section as follows:
Notwithstanding the foregoing, commencing on April 1St
2026, the Base Monthly Rent for the Lease Property, which Lessee
agrees to pay shall be thirteen thousand dollars ($13,000.00).
D. Section 4.2 of the Lease is hereby amended to add the following
paragraphs to the end of the section as follows:
Notwithstanding the foregoing, commencing on April 1St,
2026 the Percentage Rent payment shall become an annual
payment, due on or before June 151, 2027 for the preceding Lease
Year from April 1St, 2026 through March 315t, 2027, and thereafter
shall become due on or before June 1St of each year for the
preceding Lease Year in an amount equal to ten percent (10%) of
Gross Revenues that are in excess of the Minimum Guarantee for
the preceding Lease Year. Commencing on April 1St, 2026 and
continuing throughout the remaining Lease Term or any extensions
thereof, the Gross Revenues shall be defined as the entire amount
of the revenues and/or percentages of revenues collected or
accrued for the sale of goods and/or services conducted on the
Lease Property, whether such revenues shall be creditor cash or
otherwise, and whether the foregoing be collected or uncollected
and shall include any finance charges or similar payments received
by Lessee as a result of any of the foregoing. Gross Revenues
shall not include alcohol sales and any amount of any sales tax,
use tax, or gross sales tax imposed by any federal, state, or
governmental authority directly on sales and collected from
customer, provided that the amount is added to the selling price
therein and paid by Lessee to such governmental authority.
E. Section 4.5 of the Lease is hereby amended to add the following
paragraph to the end of the section as follows:
Notwithstanding the foregoing, commencing on April 15',
2027 and each year of the Lease Term thereafter, Lessee agrees
that, as provided for below, the Base Monthly Rent and the
Community Service Credit shall be increased on the first day of
each Lease Year by three percent (3%).
F. Section 5.2 of the Lease is hereby amended to read as follows:
5.2 Audit: Within 60 days following the end of each Lease
Year, Lessee shall deliver or cause to be delivered to Lessor's
Department of Real Estate and Asset Management at 444 SW 2nd
Ave, 3rd Floor, Miami, FL 33130, a financial statement for the prior
Lease Year, prepared and certified by a Certified Public Accountant
("CPA") at Lessee's sole cost and expense. Said CPA shall certify
the he/she made a complete examination of the books, state sales
tax returns, and federal income tax returns of Lessee and that such
statement is prepared in accordance with generally accepted
accounting principles and practices and represents that the Gross
Revenues of the Lessee for the period indicated therein.
At its option, Lessor may at any time, upon ten (10) days ' prior
written notice to Lessee, arrange for an auditor selected by Lessor
to conduct a complete audit (including a physical inventory) of the
applicable records and operations of Lessee included in Gross
Revenues from the Lease Property during the period covered by
any statement issued by Lessee. Lessee shall make available to
the Lessor's auditor at the Lease Property or Lessee's main
accounting office on the day set forth in Lessor's notice, requiring
such audit, all of the applicable books, source documents,
accounts and records referred to in Section 5.1 hereof and any
other materials which such auditor reasonably deems necessary or
desirable for the purpose of making such audit. Lessee shall
promptly pay to Lessor the amount of any deficiency in Percentage
Rent payments disclosed by any such audit. If such audit shall
disclose that Lessee's statement of Gross Revenues is understated
to the extent of five percent (5%) or more, then, unless Lessee
shall dispute the results of such audit, Lessor may bill to Lessee
the cost of such audit, which shall be paid by Lessee within thirty
(30) days after Lessee's receipt of Lessor's invoice. In addition to
the foregoing, and in addition to all other remedies available to
Lessor, in the event Lessee's auditor and Lessor's auditor shall
schedule a date for an audit of Lessee's records in accordance with
this Section 5.2, and Lessee shall fail to be available or shall
otherwise fail to comply with the requirements for such audit,
Lessee shall pay all costs and expenses associated with the
canceled audit. In addition to all other remedies available to Lessor,
in the event that any such audit shall disclose that Lessee's records
and other documents as referred to in Section 5.2 hereof and such
other materials provided by Lessee to Lessor's auditor are
inadequate, in the opinion of an independent auditor serving as
Lessor's auditor, to disclose accurately Lessee's Gross Revenues,
then Lessee shall have thirty (30) days to cure any deficiencies
raised by Lessor's auditor and shall then notify Lessor so that
Lessor's auditor can continue its audit. Lessor's exercise of the
foregoing remedy shall in no way limit or otherwise affect Lessor's
ability to exercise other remedies available to it, nor shall Lessee's
obligations pursuant to the terms, covenants and conditions of this
Lease (including, without limitation, Lessee's obligation with respect
to reporting Gross Revenues and payment of Percentage Rent) be
in any manner reduced or diminished by the exercise of such
remedy.
G. A new Section 7.6 is hereby added to the Lease as follows:
7.6 Redevelopment Plans: Lessee will be required to obtain a
master building permit for the improvements more particularly
described in Exhibit D, attached hereto, from the City of Miami (the
"Master Permit") within two (2) years of the Amendment 5 Effective
Date and a temporary certificate of occupancy or a certificate of
occupancy from the City of Miami within six (6) years after
obtaining the master building permit; provided however, the
deadlines specified in this paragraph are subject to delays outside
the reasonable control of Lessee including, hurricanes and other
weather events, labor or materials shortages and other instances of
force majeure. The Lessee shall be solely responsible for the
construction and cost of all improvements to the marina, building,
and restaurant located at the Lease 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. All
improvements described in Exhibit D shall be performed at the
Lessee's sole cost, expense, and risk.
H. Section 12.1 is hereby amended and restated as follows:
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Section 12.1. Indemnification: The Lessee shall indemnify, defend
(at the Lessee's sole cost and expense), save and hold harmless
the Lessor, 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 Lease; in
connection with the approval, granting or recommendation for
approval of the Lease; 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 Lease Property, or the occupancy or use by the
Lessee, its agents, servants, representatives, and concessionaires
and subtenants of the Lease 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 Lease Property made by the
Lessee 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 Lessee; in connection with any occurrence in,
upon or at the Lease Property by virtue of the occupancy of the
Lessee; or by virtue of any workers compensation, labor,
employment, wage, benefit, payroll, or similar claims made by any
employee of the Lessee; or any claim relating to any environmental
violation, hazardous or toxic materials attributable to the Lessee or
for any violation of any law, codes, rules, regulations, resolutions or
order attributable to the Lessee, 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 Lessor, 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
Lessee 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.
Section 12.2 of the Lease is hereby amended to read as follows:
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Section 12.2 Insurance: The Lessee shall maintain during the term
of this Lease Agreement the following insurance subject to the
approval of the Lessor's Department of Risk Management:
(a) Property Insurance: "Special Form" property insurance
form with extended coverage against loss or damage by earth
movement, named storm, 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 (1 %) 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 Form"
coverage with limits not less than the minimum annual rent,
remuneration or ordinary payroll and the debt service payments
with 180 days extended period of indemnity. Lessor 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 Lessor. The
Lessor 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
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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 Lessor 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 Lessor 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. Lessor 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 Lessor shall be named
as an additional insured on this coverage. The requirements of this
provision in terms of owned autos will be waived upon submission
of a written statement from the Lessee 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 Lessee 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
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excess over all applicable liability policies contained herein,
including liquor.
(j) Liquor: The Lessee shall further maintain liquor liability
coverage with limits of $1,000,000 per occurrence. The Lessor
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 Lessor. Said notice should be delivered to the City of
Miami, Division of Risk Management, Attention: Director, 444 S.W.
2nd Avenue, 9t` Floor, Miami, Florida 33130, with a copy to City of
Miami, Department of Real Estate and Asset Management, 444
S.W. 2nd 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 Lease, 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 Lessor or by its representatives, which indicates less coverage
than required, does not constitute a waiver of the Lessee'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 Lessee.
(m) Right to Amend Insurance Requirements: The Lessor
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 Lessor in this Lease Agreement, provided that such
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requirements are uniformly imposed on comparable Lessor -owned
waterfront properties.
Except as specifically provided herein, all of the terms and provisions of the Lease shall
remain in effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
the Lease Agreement on the day and year first above written.
Witness:
By:
Signature
Print Name
By:
Signature
APPROVED AS TO FORM
AND CORRECTNESS
By:
Victoria Mendez
City Attorney
ATTEST:
By:
Todd B. Hannon
City Clerk
LESSEE: Miami Outboard Club, Inc.
Signature
Print Name and Title
APPROVED AS TO INSURANCE
REQUIREMENTS
Ann -Marie Sharpe, Director
Risk Management Department
THE CITY OF MIAMI,
a municipal corporation
of the State of Florida
By:
Daniel J. Alfonso
City Manager
EXHIBIT D
REDEVELOPMENT PLANS
List of Proposed Improvements for Lease Extension and Estimated Costs
Proposed Improvements
(1) Update / Remodel Kitchen
(2) Update Existing Dry Storage
a. Improve water supply access
b. Upgrade electrical system
(3) Update 1 Remodel Existing Building
a. Main room& dining area
b. New fagade
c. New terrace canopy
d. New terrace tile
(4) Update / Remodel Wet Docks
a. Replace wooden planks
b. Upgrade electrical system
c. Improve water supply access
d. Improve lighting
e. Install security cameras
(5) Asphalt Driveways / Parking Lots
a. Repair
b. Overlay
(6) Build New Building
a. Two stories (first floor used for parking)
b. Accessible roof top terrace
(7) Update/Remodel Dock Bathrooms
a. New lockers
b. New tile
c. Update plumbing and electric
d. New fixtures
e. Additional storage area
f. Replacement of roof
(8) HVAC
a. Replace/upgrade existing equipment
(9) Upgrade/Remodel Dock House
a. Upgrade electrical system
b. Install new HVAC unit
(10) Upgrade/Remodel jet ski area
(11) New roof on existing building
(12) Updade refrigeration equipment
a. Walk in cooler
b. Walk in refrigerator
(13) Landscaping upgrades
(14) Upgrade children's playground
(15) Place power lines underground
Total Proposed Improvements $3,850,000
Additional Projects: If approved by The City and applicable agencies (we can possibly
generate income for rent with the following projects)
(16) New Sea Wali
a. Build a promenade area
b. Create additional wet slips
c. Dredge along the sea wall
d. Pump -outstation for public access
(17) Two Tier Dry Storage Racks
a, New perimeter fence to help hide the boats
(18) Advertising Sign
Total Additional Improvements
Sum of All Improvements
t?
$2,150,000.00
$6,000,000.00