HomeMy WebLinkAboutReso 2013-2096 RESOLUTION NO. 2013- 6,
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF SUNNY ISLES BEACH, FLORIDA, APPROVING THE
LEASE AGREEMENT BETWEEN THE CITY OF SUNNY
ISLES BEACH AND AMERICAN FEDERATED TITLE CORP.
AS TRUSTEE UNDER FLORIDA LAND TRUST #3258 FOR
THE RESTAURANT FACILITIES AND BAIT SHOP AT THE
HISTORIC NEWPORT FISHING PIER, IN SUBSTANTIALLY
THE SAME FORM ATTACHED HERETO AS EXHIBIT "A";
AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT; AUTHORIZING THE CITY MANAGER AND
THE CITY ATTORNEY TO DO ALL THINGS NECESSARY
TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, by Letter Agreement dated November 25, 2008, the City and Dr. Robert
Cornfeld or assigns ("Cornfeld") entered into a private/public partnership to rebuild the Historic
Newport Fishing Pier(the "Pier"); and
WHEREAS, in furtherance of the private/public partnership, the City and American
Federated Title Corp. as Trustee under Florida Land Trust #3258 or assigns, ("American
Federated") a company affiliated with Cornfeld, have negotiated a long term Lease Agreement to
operate the restaurant and bait shop at the Pier, in order to offer for sale and sell food, beverages
and other related ancillary products at the Pier; and
WHEREAS, the City wishes to enter into a Lease Agreement with American Federated
to operate the Restaurant Facilities and Bait Shop at the Pier.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of the Lease Agreement. The City Commission hereby approves the a
Lease Agreement with American Federated to operate the Restaurant Facilities and Bait Shop at
the Pier in substantially the same form attached hereto as Exhibit "A".
Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute said
Agreement.
Section 3. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are hereby authorized to do all things necessary to effectuate this Resolution.
Section 4. Effective Date. This Resolution shall become effective upon adoption.
Approving The Lease Agmt With American Federated Title Corporation Page 1 of 2
PASSED AND ADOPTED this 18th day of July 2013.
pyr/l.
•rman S. Edelcup, ayor
ATTEST:
Jane A.'Hines, CMC, City Clerk
APPROVED AS TO FORM
AND LEG• t S ICIENCY:
.i/
H.Ir i ttinot, City Attorney
Moved by: V t
Seconded by: ti b u_
Vote: 5-0
Mayor Edelcup v(Yes) (No)
Vice Mayor Aelion t/(Yes) (No)
Commissioner Gatto ✓(Yes) (No)
Commissioner Levin Yes) (No)
Commissioner Scholl V(Yes) (No)
Approving The Lease Agmt With American Federated Title Corporation Page 2 of 2
Property Search - Report Page 1 of 1
•
MIAMI-DADE COUNTY
.90 OFFICE OF THE PROPERTY APPRAISER
SI _. 0)
COUNTY PROPERTY SEARCH SUMMARY REPORT
� P Carlos Lopez-Cantera
O R% Property Appraiser
Property Information: I
Folio 31-2214-000-0045 '. � * } j` `( �, r°
Property Address 16501 COLLINS AVE • :� - # r J aF #
y i1_ s
Owner Name(s) TRS OF II FUND
CITYOF SUNNY ISLES BCH LESSEE '•F jri: -
Mailing Address 18070 COLLINS AVE
SUNNY ISLES BEACH FL
33160-2723
Primary Zone 5000 HOTELS&MOTELS-GENERAL
Use Code 0040 MUNICIPAL # + 3
Beds/Baths/Half 0/0/0 •
•Floors 0 _
Living Units 0 Fi tr
{'
•
Adj.Sq.Footage 0
Lot Size 0 Y ma=r t9 � • •- -
Year Built 0
Full Legal Description 14 52 42 Aerial Photography 2012
SUB LAND LEASES FROM STATE OF FLA
AKA NEWPORT PIER LYG ELY OF FOL •
•
DESC PARCEL BEG 76FTN&149.23FTE
OF LOT 36 PB 8-128 TH NELY
433.13FT E328.63FT M/L S433.32FT
W351.08FT M/L TO POB
LOT SIZE 19997 SQ FT -
FAU 31 2214 000 0040
OR 20625-2438 0802 1
•
Disclaimer:
The Office of the Property Appraiser and Miami-Dade County are continually editing and updating the tax roll and GIS data to reflect the latest property information and GIS
positional accuracy.No warranties,expressed or implied,are provided for data and the positional or thematic accuracy of the data herein,its use,or its interpretation.Although this
website is periodically updated,this information may not reflect the data currently on file at Miami-Dade County's systems of record.The Property Appraiser and Miami-Dade
County assumes no liability either for any errors,omissions,or inaccuracies in the information provided regardless of the cause of such or for any decision made,action taken,or
action not taken by the user in reliance upon any information provided herein.See Miami-Dade County full disclaimer and User Agreement at
http://www.miamidade.gov/info/disclaimer.asp.
Property information inquiries,comments,and suggestions email:pawebmail @miamidade.gov
GIS inquiries,comments,and suggestions email:gis @miamidade.gov Generated on:Fri Jul 12 2013
EXHIBIT "A"
http://gisweb.miamidade.gov/PropertySearch/printMap.htm 7/12/2013
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EXHIBIT "C
LEASE AGREEMENT
BETWEEN THE CITY OF SUNNY ISLES BEACH (LESSOR OR CITY)
AND
AMERICAN FEDERATED TITLE CORPORATION AS TRUSTEE UNDER FLORIDA
LAND TRUST #3258 (LESSEE)
FOR THE
RESTAURANT FACILITIES AND BAIT SHOP AT THE HISTORIC PIER
LOCATED AT
PIER PARK
16501 COLLINS AVENUE
SUNNY ISLES BEACH, FLORIDA
THIS LEASE AGREEMENT (the "Lease") is made and entered into this '2-64lay of
, 2013, by and between the CITY of SUNNY ISLES BEACH, a municipal
corporation of the State of Florida (hereinafter referred to as "CITY", or "LESSOR") and
AMERICAN FEDERATED TITLE CORP. AS TRUSTEE UNDER FLORIDA LAND TRUST
# 3258 , (hereinafter referred to as "LESSEE").
WITNESSETH:
WHEREAS, pursuant to Letter Agreement dated November 25, 2008, the LESSOR and
DR. ROBERT CORNFELD, President of LESSEE, entered into a public/private partnership
agreement to rebuild the historic Newport Fishing Pier(the "Pier"); and
WHEREAS, the partnership agreement requires President of LESSEE to contribute a
maximum of$2 Million Dollars to rebuild the Pier and the LESSOR to contribute more than $2
Million Dollars towards rebuilding the Pier; and
WHEREAS, the parties wish to amend the terms of the Letter Agreement, to provide the
LESSEE with the exclusive right to manage and operate the Pier, and to lease the restaurant
facilities and bait shop to the LESSEE; and
WHEREAS, LESSOR owns certain real property located in Miami-Dade County,
Florida as more particularly described in Exhibit "A", a copy is attached to this Lease and
incorporated herein by reference (the "Parcel") upon which LESSOR constructed a fishing Pier
as more particularly described in Exhibit "B", a copy of which is also attached to this Lease and
incorporated herein by reference; and
WHEREAS, LESSOR desires to lease to LESSEE, and LESSEE desires to lease from
LESSOR a portion of the Pier as more particularly described on Exhibit "C", a copy of which is
attached to this Lease and incorporated by reference and made a part hereof(the "Premises") for
the purpose stated in this Lease, subject to the terms and conditions of this Lease.
NOW THEREFORE, in consideration of the premises and mutual covenants hereinafter
contained to be observed and performed, the parties hereto do hereby covenant and agree as
follows:
SECTION 1. FUNDMENTAL LEASE PROVISIONS
The provisions in the Section shall be referred to in this Lease as the "Fundamental Lease
Provisions." Unless otherwise defined herein, capitalized terms used in this Lease shall have the
meanings listed in the Fundamental Lease Provisions.
Effective Date: The term Effective Date shall mean the date of mutual execution and
delivery of this Lease.
Rent Commencement Date: The date upon which LESSEE is required to make its initial
rent payment to the LESSOR.
2
Lessor: City of Sunny Isles Beach
Attn: Finance Director
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Lessee: American Federated Title Corp. as Trustee
Attn: Robert M. Cornfeld
3850 Hollywood Boulevard, Suite 400
Hollywood, FL 33021
Lessee's Fed Tax ID No:
Premises: The restaurant facility, bait shop, and second floor of
restaurant facility located at 16501 Collins Avenue, Sunny
Isles Beach, FL 33160, as generally described in Exhibit
"C". Upon delivery of additional "outdoor dining" areas to
LESSEE, the term Premises shall include the outdoor
dining areas located on the North and Northwest/Southwest
areas of the restaurant and bait shop building.
Notwithstanding the foregoing, the term Premises shall not
include outdoor dining areas except if the LESSOR is able
to obtain permission from permitting agency to use such
area for dining purposes and the Rent is adjusted for use of
such areas for dining purposes.
Initial Term: 20 (twenty) years, commencing on the Effective Date.
Renewal Terms: 3 (three) terms of 20 (twenty) years, and another 1 (one)
term of 10 (ten) years as provided in Section 4. The Initial
Term and any Renewal Terms, if exercised, are collectively
referred to herein as the "Term".
Rent: Ten Thousand Dollars ($10,000.00) per month, subject to
adjustment as provided in Section 5. Rent may increase
upon the negotiating of the use of outdoor dining areas.
Permitted Use: Restaurant, bait shop and permitted ancillary uses.
SECTION 2. USE OF PREMISES AND CONDITIONS OF PREMISES.
(a) LESSEE shall use the Leased Premises solely for the Permitted Uses. The
Permitted Uses are retail sale of food items, alcoholic beverages, and fishing supplies to the
patrons of the Pier in compliance with federal, state, and local laws. LESSEE may not use the
Premises for any other purpose without obtaining the prior written consent of LESSOR, which
consent shall not be unreasonably withheld. Lessee shall sell only frozen bait at the bait shop.
Live bait shall not be sold at the bait shop. No outdoor dining shall take place on the Premises
or the Pier unless approved by the City.
3
(b) LESSOR has constructed the foundation, building shell and roof of the restaurant
facility and bait shop and delivered the restaurant facility and bait shop to LESSEE for finish
out, such finish out to be solely at LESSEE's cost.
SECTION 3. TERM OF LEASE AGREEMENT
(a) Term. The term ("Initial Term") of the Lease shall be for a period of Twenty (20)
years beginning on the Effective Date and shall terminate on the same date as the Effective Date
in the Twentieth(20th) year unless sooner terminated or extended as provided in this Lease.
(b) Renewal Terms. The LESSEE shall have the option to renew this Lease for three
(3) additional Twenty (20) year periods and an additional Ten (10) year term, provided that
LESSEE is not in default at the time of renewal of the terms. If LESSEE is not in default,
LESSEE shall have the option to extend by giving LESSOR written notice of its election to
extend the term of this Lease not less than ninety (90) days prior to expiration of the Initial Term
or the then running Renewal Term. If the LESSEE fails after notice, to timely exercise a renewal
in the period or in the manner provided in this Lease, such renewal shall be deemed to have
lapsed and terminated, and shall be of no further force or effect without any action or notice
required on the part of the LESSEE. All of the terms and conditions of this Lease, other than the
amount of Rent, as discussed below, shall remain in full force and effect during each Renewal
Term.
SECTION 4. RENT
(a) Base Monthly Rent. For the right to lease the Premises, the LESSEE shall pay to
the LESSOR a guaranteed monthly payment of Ten Thousand Dollars ($10,000.00). (the "Base
Monthly Rent"). Base Monthly Rent shall be subject to annual increases in the Consumer Price
Index ("CPI") on the first day of the month of every fifth (5th) year anniversary of the Lease
Term and such revised amount shall be referred to herein as the Base Monthly Rent. Rent is due
no later than the Fifteenth (15th) day of each month. Rent shall be made payable to the City of
Sunny Isles Beach CIO the City's Finance Department located at 18070 Collins Avenue, Sunny
Isles Beach, FL 33160. Rent shall commence upon the Rent Commencement Date as discussed
below. If outdoor dining is permitted on the Premises or the Pier, the parties shall negotiate an
additional rent for the use of the outdoor dining areas.
(b) CPI Increases. Commencing with the Base Monthly Rent due for the first month
of the fifth (5th) year anniversary of the Initial Term, and continuing every 5th anniversary
thereof for the Term of the Lease (a "Rent Adjustment Period"), the Base Monthly Rent shall
increase and shall be determined as follows: the Base Monthly Rent payable for the first month
of the Initial Term shall be multiplied by a fraction, the numerator of which shall be the CPI, as
defined below, for the month of the Initial Rent Adjustment Period (and continuing thereafter for
every Rent Adjustment Period, as the case may be), and the denominator of which shall be the
CPI for the Month of the Rent Commencement Date (and the CPI for the first month of the prior
Rent Adjustment Period, as the case may be. The sum so calculated shall constitute the new
monthly Base Monthly Rent until the following Rent Adjustment Period, but in no event shall
such new monthly Base Monthly Rent be less than the Base Monthly Rent for the prior Rent
Adjustment Period or represent an increase of more than fifteen percent (15%) from the Base
4
Monthly Rent of the prior Rent Adjustment Period. The following hypothetical is to be used
solely for illustrative purposed:
$10,000 (Base Monthly X 230.280 (CPI in January 2013/ 5th Year Index) = $10,900
(Rent on Effective Date) 211.080 (CPI in January 2008Base Index) new Base Monthly
Rent
"CPI", as used herein, shall mean the Consumer Price Index for All urban Customers,
U.S. City Average (1982-84=100) published by the United States Department of Labor, Bureau
of Labor Statistics, or such equivalent index as may hereafter be published. If the Consumer
Price Index is discontinued or revised during the Lease year immediately preceding an
adjustment date, such other government index or computation with which it is replaced shall be
used to obtain substantially the same results as would be obtained if the Consumer Price Index
had not been so discontinued or revised. For purposes of computing the percentage increase in
the CPI for any applicable period, the CPI for the month nearest the commencement and
expiration dates of the applicable Term shall be used.
(c) Rent Commencement Date. The Rent Commencement Date shall be one hundred
eighty (180) days from the date the restaurant facility is opened for business or April 1, 2014,
whichever occurs first. Commencing on the Effective Date, LESSEE is obligated to use its best
possible efforts to diligently pursue and obtain on the earliest possible date all necessary building
permits and licenses at LESSEE's sole cost and expense to construct LESSEE's Improvements.
LESSEE's performance of this Lease shall not be excused under any circumstances if the failure
or inability to obtain such licenses or permits is due to the neglect or omission of LESSEE.
LESSOR shall provide LESSEE with all reasonable cooperation in obtaining such building
permits and licenses.
(d) Late Charge. If any installment of the Base Monthly Rent, any Imposition or any
other payment provided for under this Lease which is payable by LESSEE is not received by
LESSOR within fifteen (15) days after notice, LESSEE shall immediately pay LESSOR the
amount of Five Hundred ($500) Dollars as a late charge (the "Late Charge"). LESSOR and
LESSEE agree that the Late Charge represents a fair and reasonable estimate of the costs that
LESSOR will incur by reason of any such late payment by LESSEE. Acceptance of the Late
Charge by LESSOR shall not constitute a waiver of LESSEE's default with respect to the
overdue amount, not prevent LESSOR from exercising any other rights and remedies available to
LESSOR under this Lease.
(e) Interest on Overdue Amounts. The Base Monthly Rent and all other amounts due
LESSOR under this Lease which are not paid when due shall bear interest at a per annum rate
equal to the "Prime Rate" (or substantial equivalent) announced from time to time (as adjusted
monthly) plus 10 %, from the date due until paid; provided, however, that if such rate shall
exceed the lawful rate of interest which LESSOR is entitled to charge under applicable law, then
the per annum rate of interest on any such overdue amounts shall be the maximum rate permitted
by applicable law.
(1) Net Lease. Other than the Lessor's obligations set forth in this Lease, this Lease is
what is commonly called a "net lease", it being understood that LESSOR shall receive the Base
5
Monthly Rent free and clear of any and all taxes, other Impositions, liens, charges, or expenses
of any nature whatsoever incurred in connection with the ownership and operation of the
Premises, other than the Lessor's obligations set forth herein.
(g) Licenses, Fees, Taxes. LESSEE shall pay, on or before their respective due dates,
to appropriate collecting authorities, all federal, State, County, and City taxes, licenses, permits,
assessments, submerged land lease fees, and fees, which are now or may subsequently be levied
upon or apportioned to the Premises or the leasehold estate granted by this Lease, or upon
LESSEE, or upon any of LESSEE's property used in connection with this Lease, or upon any
rentals or other sums payable under this Lease, including, but not limited to any applicable ad
valorem, sales or excise taxes, and shall maintain in current status all federal, State, County and
City licenses and permits, now or subsequently required for the operation of the business
conducted by LESSEE including, but not limited to, occupational licenses.
(h) Payment of Utilities. From and after the Effective Date, LESSEE shall pay when
due all water, wastewater, electric, telephone, solid waste, recycling, and all other utility and
costs of any and all types whatsoever which are now or hereafter charged or assessed with
respect to operations at the Premises. LESSEE shall pay all fees or charges relative to the
foregoing promptly prior to delinquency. LESSOR represents and warrants that the utilities
which will be provided to the Premises are or will be separately metered and will not include any
such utilities consumed on any other portion of the Pier.
SECTION 5. CONSTRUCTION OF IMPROVEMENTS BY LESSEE.
(a) Schedule for Development of Premises. Sixty (60) days from the Effective Date,
LESSEE shall, at its own cost and expense, submit to LESSOR its plans for the commencement
and completion of the construction, and the acquisition and installation of the LESSEE's
Improvements as discussed below (hereinafter referred to "Improvements"). The Improvements
shall be completed no later than December 1, 2013. The restaurant facility shall be opened for
business no later than December 1, 2013 and the opening of restaurant facility may be extended
due to Force Majeure as set forth in Section 25 (f).
(b) Description of Improvements. LESSEE's Improvements shall consist of the
interior electrical and plumbing work for the restaurant facility and bait shop, including the build
out of the interior of the restaurant facility and bait shop. The plans for the restaurant facility and
bait shop shall include: a layout of the Premises, a lighting plan, a depiction of all fixtures to be
added to the Premises, interior finish and material samples, typical display technique, and
interior and exterior signage plan. LESSEE shall be responsible for all costs and expenses for
the planning, design, engineering, installation, and construction of the Improvements. The
completion of the Improvements shall be evidenced by a certificate of occupancy issued by the
City.
(c) Ownership of Improvements. Unless otherwise set forth in the Lease, upon
completion, all Improvements including, but not limited to, all installed and permanently
attached restaurant equipment such as stoves, sinks, coolers, refrigerators, freezers, dishwashers,
and any additions and alterations of a permanent nature made to the Premises by LESSEE, or at
LESSEE's direction (but excluding unattached, movable trade fixtures, furnishings and
equipment owned by LESSEE), shall become and remain LESSOR's property free and clear of
any liens and encumbrances whatsoever upon the expiration or earlier termination of this Lease.
6
(d) Encumbrances. LESSEE represents, warrants and covenants to LESSOR that the
Premises shall be at all times kept free and clear of all liens, claims and encumbrances created by
or through LESSEE (other than those created or consented to by LESSOR). If any claim of lien
or notice of lien shall be filed against the Premises created by or through LESSEE, LESSEE
shall, within forty-five (45) calendar days after notice of any such filing, cause the same to be
discharged of record by payment, deposit, transfer bond, or order of a court of competent
jurisdiction. LESSOR shall not be deemed to be LESSEE's agent so as to confer upon any
contractor or subcontractor providing labor or services to the Premises (whether in connection
with LESSEE's Improvements or otherwise) a construction lien, mechanic's lien or both against
LESSOR's estate under the provisions of Chapters 255 and 713, Florida Statutes, as amended
from time to time. The foregoing shall be contained in a notice or memorandum disclaiming
such liability on the part of the LESSOR which shall be recorded in the Public Records of
Miami-Dade County in accordance with Chapters 255 and 713, Florida Statutes.
(e) Required Governmental Approvals. LESSEE, at its sole cost and expense, shall
obtain all required governmental approvals from all governmental agencies having jurisdiction
over the Premises for any Improvements constructed or to be constructed by LESSEE, including
but not limited to departments, divisions or offices of the State, County, City, and the federal
government.
(f) Contractor Indemnity. LESSEE shall require any contractor performing any work
in connection with its Improvements to indemnify and hold LESSOR (including its elected
officials, officers, employees and agents) harmless from any and all loss, damage, cost, or
expense, including, but not limited to, attorney fees and court costs through all trial and appellate
levels with respect to personal injury, property damage or both caused by such contractor, its
subcontractors, agents and employees in connection with performing such work.
(g) Alterations. Except for the construction of LESSEE's Improvements discussed
herein, LESSEE shall not cut, drill into, disfigure, deface or injure any part of the Premises or
perform or undertake any alteration, addition, improvement or construction to or in the Premises,
other than minor or cosmetic alterations which are interior and nonstructural in nature, without
LESSOR's prior written consent, which consent shall be unreasonably withheld nor delayed
except, however, that LESSOR may withhold or delay consent at LESSOR's sole discretion, for
any alteration or Improvement which (i) will alter or affect any portion of the plumbing, heating,
ventilating, air conditioning, mechanical, electrical and other building systems, installations and
facilities of the Premises or structure, façade, wall, roof, or foundation of the Premises, the Pier
or both; (ii) will detract from the use or character of the Premises or be visible from the exterior
of the Premises; (iii) will require amendment of any certificate of occupancy for the Premises;
(iv) will require the consent of any insurer under any of LESSOR's or LESSEE's policies of
insurance covering the Premises; or (v) void or otherwise adversely impair any applicable
roofing guaranty in effect.
SECTION 6. CONSTRUCTION OF LESSOR'S IMPROVEMENTS.
The LESSOR shall construct the "shell" or structure of the restaurant facilities and bait
shop, which shall consist of exterior and interior walls and utility connections to bring electric
and water into the Premises. The LESSOR shall not at any time undertake or be responsible for
any construction, repair alteration, improvement or maintenance to electrical or plumbing work,
7
interior finish work, decor, furniture, fixtures, and kitchen equipment within the interior of the
restaurant shell and bait shop.
SECTION 7. OPERATIONAL REQUIREMENTS OF LESSEE AND PARKING.
(a) Approval of Restaurant Vendors/Date of Operations. The consent of the
LESSOR is required before LESSEE selects a vendor to sell food and beverages in the restaurant
facility. Consent by the LESSOR shall not be unreasonably withheld if the vendor(s) are deemed
to be in the best interest of the Premises. LESSEE is required to have the restaurant facilities
operational and open to the public no later than one hundred eighty (180) days from the date of
issuance of certificate of occupancy for the Pier.
(b) Operating Schedule. LESSEE shall generally provide its services not less than
six (6) days a week except for any holidays as determined by LESSEE, with daily hours of
operation no less than as follows: 10:00 a.m. (EST) to 10:00 p.m. (EST) and as otherwise
permitted by Applicable Laws. During the Term, such days and hours of operation may be
modified, altered, varied, supplemented, increased or decreased only with the prior written
consent of LESSOR, which consent shall not be unreasonably withheld or delayed since it is the
intent of the parties that the days and hours of operation meet the needs and desires of the
residents of the City and the economic practicality of LESSEE as mutually determined by the
parties.
(c) Quality of Services. LESSEE shall conduct its operations in a first class, neat,
sanitary and professional manner and in accordance with and subject to the terms and conditions
of the Lease and all Applicable Laws. LESSEE shall ensure at all times that its standards of
operation are commensurate with the service, food and quality of other similar restaurants in the
State of Florida. LESSEE shall control the conduct, demeanor, performance and appearance of
its officers, members, employees, agents, volunteers, independent contractors, representatives,
guests, and invitees consistent with the operation of a first class restaurant establishment and
otherwise in accordance with Applicable Laws. LESSEE shall post and enforce strict behavior
and usage policies on and about the Premises, which policies, at a minimum, shall prohibit
fighting, reckless actions, abusive language, and misbehavior.
(d) Parking. LESSEE shall have the non-exclusive right in common with the
general public to utilize the LESSOR's municipal parking lot consisting of twenty nine (29)
parking spaces located at Pier Park and the three hundred (300) plus parking spaces at the soon
to be constructed Gateway Parking Garage located on Sunny Isles Boulevard. Employees of the
LESSEE shall not use the 29 public parking spaces at Pier Park.
(e) Delivery. Food or other delivery trucks shall not use Pier Park to deliver
goods and products except if such deliveries cause disruptions to the Premises or cause loud
noise.
SECTION 8. OBLIGATIONS OF LESSEE.
(a) Garbage. LESSEE shall remove from the Premises or otherwise dispose of
all garbage, debris and other waste materials (whether solid or liquid) arising out of the use and
occupancy of the Premises or out of any operations conducted within or upon the Premises in
accordance the highest standards or sanitary practice and at all times in accordance with
8
Applicable Laws. When removing such waste, LESSEE shall comply with all Applicable Laws
relating to sanitation and waste disposal. Any items shall be kept in suitable garbage and waste
receptacles, as approved in writing by LESSOR. Garbage pick-up shall be between 8:00 a.m. —
9:00 a.m.
(b) Odor. LESSEE shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smoke or noxious gases or vapors which would constitute a
nuisance; provided, however, that fumes resulting from the normal operations of vehicles or
normal business operations shall be excepted from this provision, unless same constitutes a legal
nuisance or as otherwise prohibited by Applicable Law.
(c) Signs. LESSOR shall cooperate with LESSEE to provide directional signage to
the Pier and its restaurant facility from Collins Avenue, provided that such signage is consistent
with LESSOR's sign ordinances, requirements of the State and approved by all applicable
governmental authorities having jurisdiction. Any exterior signage other than the foregoing shall
require the approval of LESSOR and any and all applicable governmental authorities.
Notwithstanding anything in this Lease to the contrary, billboard signs are expressly prohibited.
SECTION 9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.
LESSEE shall comply with all applicable federal, State, County, and City statutes, laws,
ordinances, resolutions and governmental rules, regulations and orders as may be in effect now
or at any time during the Term (collectively "Applicable Laws"), all as may be amended, which
are applicable to LESSEE, the Premises, or the operations conducted at the Premises. A
violation of any such Applicable Laws, not cured within any applicable notice and cure period
shall constitute a material breach of this Lease, and in such event LESSOR shall after 30 days
notice be entitled to exercise any and all rights and remedies provided in this Lease and available
at law and in equity.
SECTION 10. MAINTENANCE AND REPAIR.
(a) LESSEE shall throughout the Term assume the entire responsibility and shall
relieve LESSOR from all responsibility for all repair, maintenance, replacements and capital
improvements whatsoever with respect to the Premises, except for structural and roof repairs
which are the responsibility of LESSOR as set forth in Section 11(b) below. LESSEE shall
perform all maintenance, repairs, replacements and capital improvements in a good and
workmanlike manner in accordance with all Applicable Laws. All materials utilized in any
repairs or replacements shall be of a quality and grade comparable or superior to that in existence
in the Premises as of the Effective Date. Except as otherwise set forth in this Lease, LESSEE
shall be required to keep the Premises in good, tenantable, useable condition throughout the
Term (subject to casualty, condemnation and the other provisions of this Lease with regard to
development and the redevelopment of the Premises), and without limiting the generality of the
foregoing, LESSEE shall:
(1) Keep and maintain the Premises at all times in a clean and orderly
condition and appearance.
(2) Provide and maintain all lights and similar devices, fire protection and
safety equipment and all other equipment of every kind and nature
9
required by Applicable Laws in good working order and condition.
Notwithstanding the foregoing, to the extent the Premises is served by any
shared alarm or fire suppression system that serves other premises on the
Pier and LESSOR maintains the same, LESSOR shall be permitted to
equitably allocate to LESSEE it's pro-rata share of the costs to maintain
and operate such shared systems based on LESSOR's good faith,
reasonable determination of such costs which shall be payable by LESSEE
as Additional Rent.
(3) Be responsible for the maintenance and repair of all utilities servicing the
Premises including but not limited to, service lines for the supply of water,
gas service lines, electrical power and telephone conduits and lines,
sanitary sewers and storm sewers which are now or which may be
subsequently located upon any portion of the Premises which are
controlled by LESSEE.
(4) Provide adequate security for the Premises and all portions of them for the
purpose of protecting person and property.
(5) Be responsible for the cleaning and refuse disposal for refuse generated by
the operation of the LESSEE on the Premises as necessary to keep the
appearance of the Pier in good order and condition. Such cleaning and
refuse disposal shall be performed on a daily basis.
(b) During the Term, subject to the provisions of Section 13 below, the maintenance,
repair or replacement of the existing roof(including repairing leaks not caused by LESSEE, its
agents, contractors and employees) as well as any structural repairs or replacements to the
Premises, Pier or any or all of the foregoing, shall be undertaken by LESSOR, unless such
repairs or replacement are required due to the wrongful acts, negligence or omissions of
LESSEE, its employees, agents, contractors, invitees or guests. LESSEE shall not cause or
permit any penetrations into the roof membrane or otherwise perform any alteration on or about
the roof that may void or limit LESSOR's roofing warranty. To the extent any roofing,
penetration is necessary, LESSEE shall if required by LESSOR, hire LESSOR's designated
roofing contractor to perform or supervise such roof penetration work so as to prevent any
voiding or impairment of LESSOR's roofing warranty.
SECTION 11. INSURANCE REQUIREMENTS FOR LESSOR AND LESSEE.
(a) LESSOR's Casualty Insurance. LESSOR shall, during the Term, insure and
keep insured to the extent of not less than 100% of the insurable replacement value, all buildings,
structures, fixtures and attached equipment (other than LESSEE's equipment which shall be the
responsibility of LESSEE to insure) on the Premises against such hazards and risks as may now
or in the future be included under the Standard Form of Fire and Extended Coverage insurance
policy of the State. The insurance coverages to be provided by LESSOR shall include full
coverage for windstorm and flood. LESSOR may meet the foregoing requirement through a
program of self-insurance or by adding the Premises to its master policy.
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(b) LESSEE's Insurance. During the Term, LESSEE shall pay for and
maintain in effect the following types of insurance policies, placed only with carriers carrying an
A.M. Best or equivalent rating of A-VII or better:
Comprehensive General Liability Insurance to protect against bodily injury,
death and property damage in an amount of not less than One Million Dollars ($1,000,000.00)
per occurrence and Two Million Dollars ($2,000,000.00) annual aggregate. Coverage must be
afforded on a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy, without restrictive endorsements, as filed by the Florida Insurance Services
Office and must include: Premises and Operations, Independent Contractors and Broad Form
Contractual Coverage covering all liability arising out to the terms of this Lease.
Business Automobile Liability Insurance in an amount not less than One
Million Dollars ($1,000,000.00) combined single limit. Coverage must be afforded on a form no
more restrictive than the latest edition of the Business Automobile Liability policy, without
restrictive endorsements, as filed by the Insurance Services Office, and must include: Owned,
Non-owned and Hired vehicles.
Workers' Compensation and Employer's Liability Insurance to apply for all
employees in compliance with the "Workers" Compensation Law" of the State of Florida and all
applicable federal laws with no less than One Hundred Thousand ($100,000.00) in employer
liability.
Rental Loss (Business Interruption) Insurance in an amount equal to twelve (12)
months of not less than eighty percent (80%) of the then applicable Base Monthly Rent, taxes,
insurance and utility charges.
Renter's or Contents Insurance in an amount not less than 100% of the insurable
replacement value of all furnishings, fixtures and equipment owned by LESSEE and located at
the Premises including but not limited to the Improvements.
Liquor Liability Policy in an amount of not less than One Million Dollars
($1,000,000.00)per occurrence and Two Million Dollars ($2,000,000.00) annual aggregate.
Builder's Risk Insurance with respect to all Improvements and alterations
undertaken by LESSEE during the Term.
LESSEE acknowledges and agrees that all insurance policies provided by LESSEE shall
be deemed primary coverage. Additionally, LESSEE acknowledges and agrees that the
monetary coverages specified above are the minimum acceptable coverages applicable solely to
the Premises without regard to any other business operations or locations insured by LESSEE.
In particular, the specified "aggregate" coverages shall apply solely to the Premises.
(c) Certificates. LESSEE shall furnish to LESSOR, certificates of insurance or
endorsements evidencing the insurance coverages specified by this Section prior to the
Commencement Date. The required certified of insurance shall name the types of policies
provided, refer specifically to this Lease, and state that such insurance is as required by this
Lease. All policies of such insurance and renewals of them (except for Workers' Compensation
coverage) required to be provided by LESSEE shall name LESSOR (including its elected
11
•
officials, officers, employees and agents), as additional named insureds as their interests may
appear, and shall provide that the loss, if any, shall be adjusted with and payable to LESSEE and
LESSOR (as their interests may appear), except as otherwise provided in Section 12 of this
Lease.
(d) Cancellation. Coverage is not to cease and is to remain in force (subject to
cancellation notice) throughout the Term. All policies must be endorsed to provide LESSOR
with at least thirty (30) calendar days' notice of cancellation, restriction or both. If any of the
insurance coverages will expire prior to the termination of this Lease, copies of renewal policies
shall be furnished at least sixty (60) calendar days' prior to the date of their expiration.
(e) Deficiencies. When such policies or certificates have been delivered by LESSEE
to LESSOR as aforesaid and anytime thereafter, LESSOR may notify LESSEE in writing that, in
the reasonable opinion of LESSOR the insurance represented does not conform with the
requirements of this Section either because the amount or because the insurance company or for
any other reason does not comply, and LESSEE shall have thirty (30) calendar days to cure such
defect to the extent required pursuant to the Lease.
(f) Review of Coverage. The aforesaid minimum limits of insurance shall be
reviewed from time to time by LESSOR (but not more frequently than every five (5) Lease
Years) and may be adjusted if LESSOR reasonably determines that such adjustments are
necessary to protect LESSOR's interest, provided such coverages shall not exceed the amount of
coverage required at the time of such review by similar quality projects in Miami-Dade County,
Florida.
(g) Service of Process. The insurance shall be written by companies authorized to do
business in the State of Florida and having agents upon whom service of process may be made in
the State of Florida.
(h) Continued Obligations. Compliance with the foregoing requirements shall not
relieve LESSEE of its liability and obligations under any other provision of this Lease
SECTION 12. DAMAGE TO OR DESTRUCTION OF PREMISES.
(a) Removal of Debris/Repair to Ensure Safety. If the Improvements located on the
Premises or any part of them shall be damaged by fire, the elements, or other casualty, LESSEE
shall promptly remove, or cause to be promptly removed, all debris resulting from such damage
from the Premises. LESSEE shall promptly take such actions and cause such repairs to be made
to the Premises as will ensure the safety of persons entering upon the Premises. To the extent, if
any, that the removal of debris under such circumstance is covered by LESSEE's insurance, the
proceeds shall be paid to LESSEE for such purpose.
(b) Minor Damage. If Improvements located on the Premises or any part of them shall
be damaged by fire, the elements, or other casualty but not rendered reasonably untenantable or
unusable, Rent shall continue unabated. The Premises shall be repaired and restored promptly to
the condition they were in prior to such casualty by LESSOR and by LESSEE (the scope of each
such party's obligation to repair being described in Section 11 hereof), and to the extent that such
damage is covered by LESSOR's and LESSEE's insurance, the proceeds shall be made available
for that purpose.
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(c) Damage to or Destruction of the Premises, Pier. If the Premises, Pier, both of
them or any part of them shall be destroyed or so damaged by fire, the elements, or other
casualty as to render either or both untenantable or unusable, nothing in this Lease shall be
deemed or construed to require or obligate LESSOR to repair, rebuild, replace or restore either or
both or any portion of the Premises or Pier provided that all insurance proceeds shall first be
applied to the repair or replacement of the same Pier or Premises. Rent shall resume 60 days
after the Pier and the Premises have been restored to their previous condition, then the Lease
shall be terminated effective as of the date of such casualty. Provided the casualty resulting in
the damage or destruction was not caused by the negligence or wrongful act or omission of
LESSEE, all insurance proceeds payable to LESSEE under its policies shall be retained by
LESSEE without any obligation to pay any portion thereof to LESSOR. Upon termination,
LESSEE shall surrender the Premises to LESSOR immediately and the parties will have no
further obligations to each other hereunder, except as otherwise provided to the contrary in
Section 15 of this Lease.
SECTION 13. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES.
(a) Total or Partial Taking. If the whole of the Premises, or such portion of them as
will make the Premises unusable for the Required Use, shall be taken by any public authority
under the power of eminent domain or sold to public authority under threat or in lieu of such
taking, the Term shall cease as off the day possession or title shall be taken by such public
authority, whichever is earlier ("Taking Date"), whereupon the Rent and all other charges shall
be paid up to the Taking Date with a proportionate refund by LESSOR of any Rent and all other
charges paid for a period subsequent to the Taking Date. If less than the whole of the Premises is
taken, but the Premises may be restored to a configuration in LESSEE's reasonable business
judgment that will enable the continued use of the Premises for the Required Use, then the Term
shall cease only as to the part so taken as of the Taking Date, and LESSEE shall pay Rent and
other charges up to the Taking Date, with appropriate credit by LESSOR (toward the next
installment of Rent due from LESSEE) of any Rent or charges paid for a period subsequent to
the Taking Date. Base Rent, shall be reduced as of the Taking Date in proportion to the amount
of the Premises taken. If the Lease is not terminated then LESSOR shall be responsible to
reconfigure the Premises into one contiguous space from the condemnation proceeds which shall
be accomplished with reasonable diligence after the Taking Date.
(b) Award. All compensation awarded or paid upon a total or partial taking of the
Premises excluding the value of the leasehold estate created by this Lease shall belong to and be
the property of LESSOR without any participation by LESSEE. However, nothing contained in
this Lease shall be construed to preclude LESSEE, at its cost, from independently prosecuting
any claim directly against the condemning authority in such condemnation proceeding for
damage to, or cost of removal of, unattached movable trade fixtures, furniture, and other personal
property belonging to LESSEE.
13
SECTION 14. INDEMNITY.
LESSEE shall indemnify and hold harmless LESSOR (including its elected officials, officers,
employees and agents) from and against any and all claims, costs, losses and damages (including
but not limited to all fees and charges of architects, attorneys, and other professionals, and all
court or other dispute resolution costs), liabilities, expenditures, or causes of action of any kind
(including negligent, reckless, or willful or intentional acts or omissions of LESSEE, any
Subtenant, any subcontractor, any supplier, any person or organization directly or indirectly
employed by any of them to perform or furnish any work or anyone for whose acts any of them
may be liable), arising from, relative to, or caused in connection with this Lease except, and only
to the extent, that such claim is caused by LESSOR's negligence or misconduct (subject to
applicable sovereign immunity). This indemnity includes, but is not limited to, claims
attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible
property, including the. Improvements, and including the loss of use resulting from them.
Payment of any amount due pursuant to this Section shall, after receipt of Notice by LESSEE
from LESSOR that such amount is due, be paid by LESSEE if LESSOR becomes legally
obligated to pay same, or LESSEE agrees that it is responsible for such claim, or in the
alternative, LESSOR, at LESSOR's option, may make payment of an amount so due and
LESSEE shall promptly reimburse LESSOR for same. Where the basis for a claim for damages
brought against LESSOR by a third party is that LESSOR has breached a contract or other duty
to the third party, and the action or inaction which constitutes the breach was a result of the
negligent or wrongful act or omission of LESSEE, then LESSEE agrees, at LESSEE'S expense,
after written notice from LESSOR to defend any action against LESSOR that falls within the
scope of this Section, or LESSOR, at LESSOR's option, may elect not to tender such defense
and may elect instead to secure its own attorney to defend any such action. If the claimant
prevails in a lawsuit on the basis that the breach was a result of the negligent or wrongful act or
omission of LESSEE, then the reasonable costs and expenses of LESSOR incurred in defending
such action shall be payable by LESSEE. If either LESSOR or LESSEE is required to incur
attorney fees and costs to enforce this Section, the prevailing party in any litigation shall recover
all of its attorney fees and costs at both trial and appellate levels. LESSEE agrees to also
indemnify, defend, save and hold harmless LESSOR (including its elected officials, officers,
employees and agents), from all damages, liabilities, losses, claims, fines and fees and from any
and all suits and actions of every type and description that may be brought against LESSOR, its
officers, agents and employees on account of any claims, fees, royalties, or costs for any
infringement of any and all copyrights or patent rights claimed by any person, firm, or
corporation.
The provisions of this Section shall survive the expiration or earlier termination of this
Lease.
SECTION 15. RIGHTS OF ENTRY RESERVED AND RESERVATION OF SPACE.
(a) Access. LESSOR, by its officers, employees, agents, representatives and
contractors shall have the right at all reasonable times and upon reasonable advance notice to
enter upon the Premises for the purpose of inspecting the same, for observing the performance by
LESSEE of its obligations under this Lease and for the doing of any act or thing for which
LESSOR may be obligated or have the right to do under this Lease or otherwise, subject to the
provisions of this Lease, provided that, in connection with such access, such party shall use
reasonable efforts to minimize disruption to the operations being conducted upon the Premises.
14
(b) Maintenance. Without limiting the generality of the foregoing, LESSOR, by its
officers, employees, agents, representatives, contractors and furnishers of utilities and other
Services, shall have the right upon reasonable advance notice (except in case of emergency, in
which case no notice is necessary), at its own cost and expense, for its own benefit or for the
benefit of others than LESSEE, to maintain existing utility systems and to enter upon the
Premises at all reasonable to make such repairs, replacements or alterations as may, in the
reasonable opinion of LESSOR, be deemed necessary or advisable and from time to time to
maintain such systems or parts of them and in connection with such maintenance.
(c) No Eviction. The exercise of any or all of the foregoing rights by LESSOR or
others to the extent permitted by this Lease or the law shall not be or be construed to be an
eviction of LESSEE nor be made the grounds for any abatement of Rent nor any claim or
demand for damages, consequential or otherwise, unless LESSOR breaches its covenants with
respect to such access as provided in this Lease.
(d) Police Powers. Nothing contained in this Lease shall be deemed to in any way
limit LESSOR in the exercise of their police and regulatory powers or their powers of eminent
domain.
(e) Reservation of Space. Without charge to the LESSOR, the LESSEE shall provide
the LESSOR with a working area within the bait shop to monitor activities on the Pier or for any
public purpose.
SECTION 16. ASSIGNMENT AND SUBLETTING.
(a) Assignment. LESSEE shall not sell, convey, transfer or assign (all of the
foregoing being deemed as an "Assignment") all or any portion of its interest in this Lease,
without the prior written consent of LESSOR (which shall not be unreasonably withheld or
delayed, provided that the factors set forth below are fulfilled to LESSOR's reasonable
satisfaction), provided that no such Assignment shall be deemed valid or binding upon LESSOR
and LESSEE shall not be released from its obligations under this Lease. For purposes of this
Section, an "Assignment" will include: (i) any transfer of the Lease by merger, consolidation,
liquidation or by operation of law, or (ii) if LESSEE is or becomes a corporation, any change or
transfer (other than to Affiliates of shareholders or partners of the individuals first named as
LESSEE in the Lease) in ownership or power to vote a majority of the outstanding voting stock
thereof from those controlling the power to vote such stock on the date of the Lease, or (iii) if
LESSEE is or becomes a limited or a general partnership, joint venture, or a limited liability
company, any transfer of an interest in the partnership,joint venture or limited liability company
(other than to an existing partner or member or any Affiliates of existing partners or members)
resulting in a majority of the voting or equity interests of LESSEE being transferred.
The factors upon which LESSOR may base its decision upon whether to grant consent
under this Section will include, but not limited to: (A) whether LESSEE is or has been in default
of this Lease, (B) whether the proposed assignee meets standards of creditworthiness and
financial resources and responsibility as originally expected of the LESSEE, (C) whether the
proposed assignee has the ability to perform the obligations of LESSEE hereunder, and (D)
whether the proposed assignee has prior related business experience for operating or owning
property for the Required Use comparable to that of LESSEE.
15
(b) Subletting. LESSEE shall not sublet portions or the whole of the Premises, or grant
licenses or concessions in any of them (all of the foregoing being deemed a "Sublease") without
the prior written consent of LESSOR in each instance, which consent may be not be
unreasonably withheld by LESSOR, it being expressly understood that the management and
operation of the Premises by LESSEE is material to LESSOR's lease•of the Premises to
LESSEE. The following terms and conditions shall apply in each instance where LESSOR has
consented to a Sublease:
(1) Each Sublease shall contain a self-operative provision that it is subject and
subordinate to this Lease and any amendments, modifications and
extensions of this Lease, including, but not limited to, all use restrictions.
(2) No Sublease shall relieve LESSEE from liability for any of its obligations
under this Lease, and in the event of any such Sublease, LESSEE shall
continue to remain primarily liable for and continue to make payments
required to be made pursuant to this Lease and for the performance and
observance of the other agreements on its part as contained in this Lease.
(3) The form of such Sublease shall be subject to the review and approval of
LESSOR and shall, at a minimum, contain all of the material provisions of
this Lease with respect to the obligations of LESSEE.
(c) Reimbursement of Costs. LESSEE agrees to reimburse LESSOR for LESSOR's
attorney fees and costs incurred in connection with the processing and documentation of any
request made pursuant to this Section 17. LESSEE shall deliver to LESSOR, within five (5)
days after execution by LESSEE, an original counterpart of any executed Sublease or instrument
of Assignment, together with LESSEE's and the subtenant's (or assignee's) affidavit that such
Sublease or Assignment instrument is the true and complete statement of the subletting or
Assignment and reflects all sums and other consideration passing between the parties. LESSEE
shall pay, indemnify and hold LESSOR harmless from and against, any and all cost or expense
(including reasonable attorney fees and disbursements) and liability in connection with any
compensation, commissions or charges claimed by any broker or agent with respect to any
Assignment or Sublease.
SECTION 17. DEFAULT; REMEDIES.
(a) Default. If any one or more of the following events shall occur, same shall be
an event of default under this Lease:
(1) LESSEE shall voluntarily abandon the Premises or discontinue its
operations on the Premises for a period of thirty (30) consecutive calendar
days, other than as a result of casualty, condemnation, major renovation,
or one or more acts of Force Majeure; or
(2) Any lien, claim or other encumbrance which is filed against LESSOR's
fee simple title to the Premises (other than that created by or through
LESSOR) is not removed, or transferred to bond pursuant to Florida law,
16
within thirty (30) calendar days after LESSEE or LESSORs, or both have
received notice of such lien, claim or encumbrance; or
(3) LESSEE shall fail to pay any item constituting Rent when due to LESSOR
and LESSEE shall continue in its failure to make any such payments for a
period of ten (10) calendar days after Notice is given to make such
payments; provided however LESSOR shall not be required to provide
Notice of non-payment of Rent on more than one (1) occasion in any
twelve (12) month period; or
(4) LESSEE shall fail to make any other payment required under this Lease
when due to LESSOR and shall continue in its failure to make any such
other payments required under this Lease for a period of fifteen (15)
calendar days after Notice is given to make such payments; or
(5) LESSEE shall fail to keep, perform and observe each and every non-
monetary promise, covenant and term set forth in this Lease on its part to
be kept, including without limitation all rules and regulations in effect
from time to time in accordance with the terms of this Lease, performed or
observed within thirty (30) calendar days after Notice of default (except
where fulfillment of its obligation required activity over a greater period
of time and LESSEE shall have commenced to perform whatever may be
required for fulfillment within thirty (30) calendar days after Notice and
continues such performance without material interruption); provided,
however, the foregoing shall not apply if LESSEE's failure to perform is
due directly to the willful wrongful acts or omissions of LESSOR; or
(6) LESSEE makes an assignment for the benefit of creditors; or
(7) LESSEE files a voluntary petition under Title 11 of the United States
Code (the "Bankruptcy Code") or if such petition is filed against LESSEE
and an order for relief is entered and not dismissed within sixty (60) days
or if LESSEE files any petition or answer seeking, consenting to or
acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the
Bankruptcy Code or any other present or future applicable federal, state or
other statute or law; or
(8) If, within sixty (60) days after the appointment of any trustee, receiver,
custodian, assignee, sequestrator or liquidator of LESSEE, or of all of any
of the Premises or any interest of LESSEE in the Premises, such
appointment is not vacated or stayed on appeal or otherwise, or if, within
thirty (30) days after the expiration of any such stay, such appointment if
not vacated.
(9) Habitual Default. Notwithstanding the foregoing, in the event that
LESSEE has committed a monetary breach or default three (3) or more
times in a twelve (12) month period, and regardless of whether LESSEE
has cured each individual monetary breach or default, LESSEE may be
determined by LESSOR to be an "habitual violator". At the time that such
17
determination is made, LESSOR shall issue to LESSEE a written notice
advising of such determination and citing the circumstances therefor.
Such notice shall also advise LESSEE that there shall be no further notice
or grace periods to correct any subsequent monetary breaches or defaults
for the balance of such twelve (12) month period and that any subsequent
breaches or defaults for the balance of such (12) month period, shall
constitute a condition of noncurable default and grounds for immediate
termination of the Lease which termination shall be effective upon
delivery of the Notice to LESSEE, subject to the prevailing law in Miami-
Dade County.
(b) Remedies. Upon the occurrence of any event setforth in Section 18(a),
above, or at any time thereafter during the continuance of such event, LESSOR may exercise any
of the following rights and remedies:
(1) LESSOR may, pursuant to written notice to LESSEE, and appropriate
legal proceeding terminate this Lease and, pursuant to appropriate legal
proceedings, re-enter, retake and resume possession of the Premises for
LESSOR's own account and, for LESSEE's breach of and default under
this Lease, recover immediately from LESSEE any and all rents and other
sums and damages due or in existence at the time of such termination,
including without limitation, (i) all Base Monthly Rent and Additional
Rent; (ii) all other sums, charges, payments, costs and expenses agreed,
and required or both to be paid by LESSEE to LESSOR under this Lease;
(iii) all costs and expenses of LESSOR in connection with the recovery of
possession of the Premises, including reasonable attorney fees and court
costs; (iv) all free rent credits and rental abatements, if any, granted to
LESSEE as concessions in connection with this Lease; and (v) all costs
and expenses of LESSOR in connection with any reletting or attempted
reletting of the Premises or any part or parts of them including without
limitation, brokerage fees, attorney fee and the cost of any alterations or
repairs which may be reasonably required to so relet the Premises, or any
part of parts of them; or
(2) LESSOR shall have, receive, and enjoy as LESSOR's sole and absolute
property, any and all sums collected by LESSOR as rent or otherwise
upon reletting Premises after LESSOR shall resume possession of the
Premises as provided by this Lease, including, without limitation, any
amounts by which the sum or sums so collected shall exceed the
continuing liability of LESSEE under this Lease. If LESSOR shall have
accelerated Rent payments and collected same from LESSEE, and
subsequently shall have relet the Premises, then LESSOR, after deducting
all costs related to reletting, including those described or anticipated in this
Section 18 shall pay to LESSEE the net amount remaining at the end of
the Term, which shall have actually been collected as net rent from third
parties, to the extent LESSOR shall have previously received the
applicable Rent form LESSEE.
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(c) No Waiver. If LESSOR shall institute proceedings against LESSEE and a
compromise or settlement of it shall be made, the same shall not constitute a waiver of the future
breach of the same or of any other covenant, condition or agreement set forth in this Lease, nor
of any LESSOR's rights under this Lease, unless expressly set forth in such settlement. Neither
the payment by LESSEE of a lesser amount than the installments of Base Monthly Rent,
Additional Rent or of any sums due under this Lease nor any endorsement or statement on any
check or letter accompanying a check for payment or Rent other sums payable under this Lease
be deemed an accord and satisfaction, and LESSOR may accept such check or payment without
prejudice to LESSOR's right to recover the balance of such Rent or other sums or to pursue any
other remedy available to LESSOR. No re-entry by LESSOR, and no acceptance by LESSOR of
keys from LESSEE shall be considered an acceptance of a surrender of the Lease.
(d) LESSOR May Cure LESSEE's Defaults. If LESSEE defaults in the making of
any payment or in the doing of any act required in this Lease to be made or done by LESSEE,
then LESSOR may, but shall not be required to, make such payment or do such act. If LESSOR
elects to make such payment or do such act, all costs and expense incurred by LESSOR, plus
interest on them at the highest rate allowable under the laws of the State of Florida from the date
paid by LESSOR to the date of payment of them by LESSEE, shall be immediately paid by
LESSEE to LESSOR, provided, however, that nothing contained in this Lease shall be construed
as permitting LESSOR to charge or receive interest in excess of the maximum legal rate then
allowed by law. The taking of such action by LESSORs shall not be considered as a cure of such
default by LESSEE or bar LESSOR from pursuing any remedy to which it is otherwise entitled
on account of such default.
SECTION 18. REMEDIES TO BE NON-EXCLUSIVE.
(a) Cumulative Remedies. All rights and remedies of the parties under this
Lease or at law or in equity are cumulative, and the exercise of any right or remedy shall not be
taken to exclude or waive the right to the exercise of any other, subject to the express limitations
set forth in this Lease, if any.
(b) Survival. Upon termination or expiration of this Lease, LESSEE shall remain
liable for all obligations and liabilities that have accrued prior to the date of termination or
expiration.
SECTION 19. SURRENDER.
LESSEE covenants and agrees to yield and deliver peaceably and promptly to LESSOR,
possession of the Premises, on the Expiration Date or earlier termination of this Lease.
LESSEE shall surrender the Premises in the condition required pursuant to this Lease,
reasonable wear, tear, casualty and condemnation excepted. All maintenance and repairs shall be
completed prior to surrender.
SECTION 20. ACCEPTANCE OF SURRENDER OF LEASE.
No agreement of surrender or to accept a surrender of this Lease shall be valid unless and
until the same shall have been reduced to writing and signed by the duly authorized
representatives of LESSOR and of LESSEE in a document of equal dignity and formality as this
Lease. Except as expressly provided in this Lease, neither the doing of nor any omission to do
19
any act or thing by any of the officers, agents or employees of LESSOR shall be deemed an
acceptance of a surrender of letting under this Lease.
SECTION 21. REMOVAL OF PROPERTY.
(a) Removal. LESSEE shall have the right at any time during the Term to
remove its unattached, movable trade fixtures and other personal property from the Premises
excluding any property owned by LESSOR as set forth in this Lease provided the same is
immediately replaced with no less than comparable personalty of an equal or higher value.
LESSEE shall immediately repair any damage to the structure or any portion of the Premises
caused by its removal of any personal property or unattached, movable trade fixtures. If
LESSEE shall fail to remove its inventories, unattached, movable trade fixtures, and personal
property by the termination or expiration of this Lease, then LESSEE shall be considered to be
holding over and subject to charges under Section 26(m), of this Lease, and after fourteen (14)
calendar days following such termination or expiration, at LESSOR's option: (i) title to same
shall vest in LESSOR, at no cost to LESSOR; or (ii) LESSOR may remove such property to a
public warehouse for deposit; or(iii) LESSOR may retain the same in its own possession and sell
the same at public auction, the proceeds of which shall be applied first to the expenses of
removal, storage and sale, second, to any sums owed by LESSEE to LESSOR, with any balance
remaining to be paid to LESSEE; or LESSOR may dispose of such property in any manner
permitted by law. If the expenses of such removal, storage and sale shall exceed the proceeds of
sale, LESSEE shall pay such excess to LESSOR upon demand.
(b) Transfer of Interest. Upon the termination of this Lease the ownership of all
Improvements shall vest in LESSOR (except for those specific items described herein for which
the ownership will remain in LESSEE) and LESSEE agrees to execute such documentation
required by LESSOR to effectuate the foregoing.
(c) Survival. The provisions of this Section shall survive the expiration or
termination of this Lease.
SECTION 22. ENVIRONMENTAL COMPLIANCE.
LESSEE shall at all times during the Term keep the Premises free of Hazardous Materials
(as defined below), and neither LESSEE nor any of its employees, agents, invitees, licensees,
contractors or subtenants (if permitted) shall use, generate, manufacture, refine, treat, process,
produce, store, deposit, handle, transport, release, or dispose of Hazardous Materials in, on or
about the Premises or the Parcel, or the groundwater of them in violation of any federal, state or
municipal law, decision, statute, rule, ordinance or regulation currently in existence or
subsequently enacted or rendered. LESSEE shall give LESSOR prompt written notice of any
claim received by LESSEE form any person, entity or governmental agency that a release or
disposal of Hazardous Materials has occurred on the Premises, or the parcel. As used in the
Lease, the term "Hazardous Materials" shall mean and be defined as any and all toxics or
hazardous substances, chemicals, materials or pollutants, or any kind or nature, including the
disposal of grease or grease products as a result of LESSEE's restaurant operation which are
regulated, governed, restricted or prohibited by any federal, state or local law, decision, statute,
rule, or ordinance currently in existence or hereafter enacted or rendered. LESSEE shall not
discharge into any sanitary sewer system serving the Premises any toxic or hazardous sewage or
waste which is produced or generated by LESSEE or in connection with the operation of
20
LESSEE's business, including the disposal of grease generated as part of LESSEE's restaurant
operation, shall be handled and disposed of as required by and in compliance with Applicable
Laws or shall be pretreated to the level of domestic wastewater prior to discharge into any
sanitary sewer system serving the Premises.
SECTION 23. NON-DISCRIMINATION.
(a) American with Disabilities Act. LESSEE shall comply with Title I of the
Americans with Disabilities Act regarding nondiscrimination on the basis of disability in
employment and further shall not discriminate against any employee or applicant for
employment because of race, age, religion, color, gender, sexual orientation, national origin,
marital status, political affiliation, familial status or physical or mental disability. In addition,
LESSEE shall take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
(b) Equal Opportunity. LESSEE shall take appropriate action to ensure that
applicants are employed and employees are treated without regard to race, age, religion, color,
gender, sexual orientation, national origin, marital status, political affiliation, familial status or
physical or mental disability during employment. Such actions shall include, but not be limited
to, the followings: employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions
of employment, training (including apprenticeship), and accessibility.
(c) Non-Discrimination. LESSEE shall not engage in or commit any discriminatory
practice in violation of Applicable Laws, statutes, ordinances, rules regulations.
SECTION 24. WRITTEN NOTICES.
LESSOR and LESSEE agree that all notices under this Lease Agreement must be in
writing and shall be deemed to be served when delivered to either party at:
(1) American Federated Title Corp. as Trustee
ATTN: Dr. Robert M. Cornfeld, President
American Federated Title Corporation
3850 Hollywood Boulevard, Suite 400
Hollywood, Florida 33021
(2) CITY OF SUNNY ISLES BEACH
ATTN: City Manager and City Attorney
18070 Collins Avenue, 4th Floor
Sunny Isles Beach, Florida 33160
21
SECTION 25. MISCELLANEOUS
(a) Headings. The section and paragraph headings in this Lease are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe the scope or
intent of any provision of this Lease.
(b) Jurisdiction. This Lease shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida. Disputes shall be resolved in the 11th Judicial
Circuit Court of Miami-Dade County or in the federal courts in the Southern District of Florida,
whichever jurisdiction is appropriate.
(c) Severance. In the event this Lease or a portion of this Lease is found by a
court of competent jurisdiction to be invalid, the remaining provisions shall continue to be
effective to the fullest extent permitted by law.
(d) Relationship of Parties/independent Contractor. It is the intent of the parties
that the relationship of LESSOR and LESSEE under this Lease is the relationship of LESSOR
and LESSEE. Nothing contained in this Lease shall create or be deemed or construed to create a
partnership,joint venture,joint enterprise or any other agency or other similar such relationship
between the parties to this Lease.
(e) Third Party Beneficiaries. Neither LESSEE nor LESSOR intend to directly or
indirectly substantially benefit a third party by this Lease. Therefore, the parties agree that there
are no third party beneficiaries to this Lease and that no third party shall be entitled to assert a
claim against either of them based upon this Lease.
(f) Force Majeure. Notwithstanding anything contained in this Lease to the
contrary, neither LESSOR nor LESSEE shall be considered to be in default of this Lease if
delays in or failure of performance shall be due to Force Majeure, the effect of which, by the
exercise of reasonable diligence, the non-performing party could not avoid and in such event, the
time for performance shall be extended by the period of such Force Majeure event(s).
(g) Negotiated Lease. Both parties have substantially contributed to the
negotiations which resulted in the preparation of this Lease, which shall not, solely as a matter of
judicial construction, be construed more severely against one of the parties than any other. The
parties to this Lease acknowledge that they have thoroughly read this Lease, including all
Exhibits and attachments to it, and have sought and received (or had the means, ability and
ample opportunity to do so) whatever competent advice and counsel, legal or otherwise, which
was necessary for them to form a full and complete understanding of all rights and obligations
contained in this Lease.
(h) Incorporation by Reference. The truth and accuracy of each "Recital" clause set
forth above is acknowledged by the parties.
(i) Estoppel Statement. The parties agree that from time to time, upon not less than
fifteen (15) days prior request by a party to this Lease, the other party may deliver a statement in
writing certifying: (a) that this Lease is unmodified and in full force and effect (or, if there have
been modifications); (b) the dates to which the Rent and other charges have been paid; (c) that
neither party is in default under any provisions of this Lease, or, if in default, the nature of such
22
default, described in detail; and (d) such other information pertaining to this Lease as either party
may reasonably request.
(j) Amendments. No modification, amendment, or alteration in the terms or
conditions contained in this Lease shall be effective unless contained in a written documents
prepared with the same or similar formality as this Lease and executed by LESSOR and
LESSEE.
(k) Prior Agreements. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable to the
matters contained in this Lease and the parties agree that there are no commitments, agreements
or understandings concerning the subject matter of this Lease that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms of the Lease shall be
predicated upon any prior representation or agreements, whether oral or written. It is further
agreed that no modification, amendment or alteration in the terms or conditions contained in this
Lease shall be effective unless contained in a written document in accordance with subparagraph
(J), above.
(1) References. All personal pronouns used in this Lease shall include the other
gender, and the singular shall include the plural, and vice versa, unless the context otherwise
requires. Whenever reference is made to a Section of this Lease, such reference is to the Section
as a whole, including all of the subsections and subparagraphs of such Section, unless the
reference is made to a particular subsection or subparagraph of such Section.
(m) Holdover. It is agreed and understood that any holding over of LESSEE after
the termination of this Lease shall not renew and extend same, but shall operate and be construed
as a license from month to month. At the option of LESSOR, upon written notice to LESSEE,
LESSEE shall be required to pay to LESSOR during any holdover period, monthly license fees
which shall be equal to one and one half(1%) the amount of the monthly installment of rental
that was due and payable for the month immediately preceding the termination date of this
Lease. In addition, LESSEE shall be required to pay to LESSOR any other charges required to
be paid under this Lease during any such holding over against LESSOR'S will after the
termination of this Lease, whether such loss or damage may be contemplated at the execution of
this Lease or not. It is expressly agreed that acceptance of the foregoing payments by LESSOR
in the event that LESSEE fails or refuses to surrender possession shall not operate or give
LESSEE any right to remain in possession nor shall it constitute a waiver by LESSOR of its right
to immediate possession of the Premises.
(Signatures on following page)
23
ATTEST: CITY OF SUNNY ISLES BEACH, FLORIDA, a
Municipal Corporation of the State of Florida
C.
B
JANE HINES, CMC, CITY CLERK N S. EDELCUP, MAYOR
4 I,.
`;P
t:^
AMERICAN FEDERATED TITLE CORP., AS
TRUSTEE UNDER D TRUST #3258
By: ,/
R ii BER M. I RNFELD, PRESIDENT
APPROVED AS TO FORM AND
CORRECT ,%%S:
///
/WA I/
.'S OTTI OT, CITY ATTORNEY
24
sot'" ,s1Fr City Commission
__ City of Sunny Isles Beach NormanS.Edelcup,Mayor
_=' F 18070 Collins Avenue, Suite 250 Isaac Aelion,Vice Mayor
~ n Jeanette Gatto Commissioner
. 1 I Sunny Isles Beach, Florida 33160 Gatto,
* : Jennifer Levin,Commissioner
.mow `'- , (305)947-0606 City Hall George"Bud"Scholl,Commissioner
* . * (305)949-3113 Fax
y 99, _x ."''.\or eP (305)947-2150 Building Department Christopher J. Russo,City Manager
cir * F L ��5 (305)947-5107 Fax Hans Ottinot,City Attorney
OF slit' ° Jane A.Hines,CMC,City Clerk
MEMORANDUM
TO: Honorable Mayor and City Commission
FROM: Hans Ottinot, City Attorney
DATE: July 18, 2013
RE: Resolution for the Lease Agreement for the Restaurant Facilities and Bait Shop at the
Historic Pier
RECOMMENDATION:
This Resolution is presented for your consideration.
REASONS:
The City and Dr. Cornfeld have negotiated the terms for a long term Lease Agreement for the
Restaurant and Bait Shop at the Pier.
The following is a summary of the essential terms in the Lease Agreement between the City of
Sunny Isles Beach (the "City") and American Federated Title Corporation as Trustee under Florida
Land Trust # 3258 (the "Lessee") for the Restaurant Facilities and Bait Shop at the Historic Pier,
located at Pier Park, 16501 Collins Avenue.
KEY TERMS:
Term:
• The Lease Agreement is for the restaurant facility, bait shop and second floor of the
restaurant facility
• The initial lease term is for 20 (twenty) years,
• The renewal terms include 3 (three) terms of 20 (twenty) years and another 1 (one) term of
10 (ten) years
Rent:
• Lessee shall pay the City a guaranteed monthly rent payment of $10,000.00 (ten thousand
dollars)
• Rent shall be subject to a consumer price index ("CPI") annual increase adjustment but shall
take place every fifth year of the lease term
• Upon delivery of the outdoor dining areas, rent shall automatically increase up to
$15,000.00 (fifteen thousand dollars) per month
• Rent shall commence 180 (one hundred and eighty days) following Lessee's receipt of all
necessary building permits required to commence Lessee's improvements within the
restaurant facility and bait shop or 180 days from date of execution of the Lease
• Lessee is responsible for all taxes, licenses, permits, assessments, submerged land lease fees,
or other fees apportioned to the premises
• Lessee is responsible for paying all utilities in connection with the premises
Construction of Improvements by Lessee:
• Within 60 (sixty) days from the Effective Date of the Lease, the Lessee shall submit plans
for the commencement and completion of the construction, acquisition and installation of
the Lessee's Improvements
• The Improvements shall be completed within 180 (one hundred and eighty) days from the
issuance of a building permits for the Improvements or rent commencement date, whichever
occurs first
• The "Improvements" shall consist of all interior electrical and plumbing work for the
restaurant facility and bait shop, including the build out of the interior of the restaurant
facility and bait shop
• Lessee is responsible for all costs and expenses for the Improvements
Operational Requirements of Lessee and parking
• Lessee is required to obtain the consent of the City before selecting a vendor to sell food and
beverages in the restaurant facility
• Lessee is required to have the restaurant facilities operational and open to the public within
180 (one hundred and eighty) days from the date of issuance of certificate of occupancy for
the Pier
• Lessee shall provide their services not less than 6 (six) days a week except for any holidays,
with daily hours of operation no less than 10:00 a.m. to 10:00 p.m.
• Lessee shall have the non-exclusive right to use the City's parking lot consisting of 29
(twenty nine) parking spaces at Pier Park and the 300 (three hundred) plus parking spaces at
the soon to be constructed Gateway Parking Garage; however, the Lessee's employees shall
not use the 29 parking spaces at Pier Park