HomeMy WebLinkAbout2002-24922 Reso
RESOLUTION NO.
2002-24922
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE
SECOND AMENDED AND RESTATED CONSOLIDATED LEASE
AGREEMENT WITH MIAMI BEACH W ATERSPORTS CENTER,
INC., AS LESSEE, FOR THE CONTINUED OPERATION AND
MANAGEMENT OF THE CITY-OWNED PROPERTY LOCATED
AT 6S00 INDIAN CREEK DRIVE, MIAMI BEACH, FLORIDA,
CURRENTLY HOUSING THE SHANE ROWING FACILITY;
FURTHER PROVIDING ADDITIONAL TERMS AND
CONDITIONS GOVERNING CONSTRUCTION OF ADDITIONAL
IMPROVEMENTS, INCLUDING A SECOND STORY ON THE
EXISTING FACILITY FOR MEETING AND CONFERENCE
ROOMS AND, ON A PARCEL ADJACENT TO THE FACILITY,
CONSTRUCTION OF A DRY DOCK FACILITY TO REPLACE
THE CURRENT TEMPORARY STORAGE STRUCTURE;
FURTHER WAIVING, BY SnTHS VOTE, THE COMPETITIVE
BIDDING AND APPRAISAL REQUIREMENTS; AS SET FORTH
BY SECTION 82-39 OF THE MIAMI BEACH CITY CODE,
FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF
THE CITY
WHEREAS, the Lessor is the owner of a certain parcel of land with parking lot
facilities, currently zoned as "GU", located at 65th Street and Indian Creek Drive, Miami
Beach, Florida; and
WHEREAS, on December 14, 1988, Lessor and Miami Beach Jewish Community
Center, Inc. (JCC), a not-for-profit corporation, entered into a Lease Agreement forthe use
of a portion of the property located at 65th Street and Indian Creek Drive, herein below
referred to as Parcel "A", to construct, operate, and maintain a rowing facility, at the JCC's
sole cost and expense; and
WHEREAS, on November 21, 1989, Lessor and the JCC entered into a First
Amendment to the Lease Agreement which had the effect of enlarging the leased premises
on Parcel "A"; and
WHEREAS, on February 20, 1991, the Mayor and City Commission adopted
Resolution No. 91-20246, whereby it agreed to appropriate and disburse a matching
contribution, in the amount of $225,000.00, toward construction of additional
improvements for the rowing facility under the Lease Agreement; and
WHEREAS, on November 20, 1991, Lessor and the JCC entered into an Amended
and Restated Lease Agreement primarily for the purpose of extending the term of the
Lease and making other changes relative to securing the City's matching contribution
toward the timely construction of improvements at the rowing facility; and
WHEREAS, under the Amended and Restated Lease Agreement, the Lease
contains an initial term for a period of twenty (20) years, having commenced on May 22,
1991, and terminating on May 21,2011; provided the Lease is not otherwise in default, the
Lease is renewable for one additional term of ten (10) years; and
WHEREAS, on April 17 , 1996, the Mayor and City Commission adopted Resolution
No. 96-21955, approving an Assignment of Lease, assigning all interest in the foregoing
Amended and Restated Lease Agreement from the JCC to Miami Beach Watersports
Center, Inc., as Lessee; and
WHEREAS, Miami Beach Watersports Center, Inc., as the current Lessee, has
approached the City with its intent to commence, at its sole cost and expense, extensive
capital improvements to the existing building on the leased premises on Parcel "A",
consisting of a second story thereto for meeting and conference space, as well as a
proposal to lease and make capital improvements, consisting of the construction of a dry
dock facility, on an additional parcel of land adjacent to Parcel "A" and on the property
located at 65th Street and Indian Creek Drive, herein below referred to as Parcel"B; and
WHEREAS, accordingly, Miami Beach Watersports Center, Inc. has also requested
that, as to its existing Amended and Restated Lease Agreement, the Mayor and City
Commission approve the exercise of the additional ten (10) year option for Parcel "A", and
also approve a new Lease Agreement for Parcel "B"; said term to run concurrent with the
full term on the Amended and Restated Lease Agreement on May 21,2021; and
WHEREAS, the Administration and City Attomey's Office have determined that this
may be effectively accomplished through approval and execution of the attached Second
Amended and Restated/Consolidated Lease Agreement between the City, as Lessor, and
Miami Beach Watersports Center, Inc., as Lessee; said Second Amended and
Restated/Consolidated Lease Agreement having the purpose of consolidating, in one
document, the terms and conditions, as well as the proposed improvements, to the existing
facility on Parcel "A" (the premises currently governed under the Amended and Restated
Lease Agreement, dated November 20, 1991), and the new premises on Parcel "B", on
which Lessee contemplates additional proposed improvements (the dry dock facility); and
WHEREAS, notwithstanding the consolidation (for the existing facilities on Parcel
"A" and the new improvements on Parcel "B") into one document, the resulting Second
Amended and Restated/Consolidated Lease Agreement would not have the effect of
extending Lessee's term beyond that currently provided in the Amended and Restated
Lease of November 20, 1991; and
WHEREAS, additionally, as the Second Amended and Restated/Consolidated
Lease Agreement shall also include Parcel "B", the term for same shall not extend beyond
the date of expiration of the existing November 21, 1991 Agreement, including the renewal
term therein, of May 21, 2021; and
WHEREAS, as required by Section 82-36, et seq. of the City Code, goveming the
sale and/ or lease of City-owned property, the Planning Department has provided the
required analysis, and the required public hearing, to hear public comment on the proposed
Lease Agreement, has been scheduled for July 10, 2002, at 10:45 a.m.; and
WHEREAS, Section 82-39 further provides for the waiver of the competitive bidding
and appraisal requirements, by 5/7ths vote of the Mayor and City Commission, upon a
finding by the Mayor and City Commission that the public interest would be served by
waiving such conditions.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission, following the duly noticed public hearing to hear public comment on same,
herein approve the attached Second Consolidated Amended and Restated Lease
Agreement with Miami Beach Watersports Center, Inc., as Lessee, for the continued
operation and management of the City-owned property located at 6500 Indian Creek Drive,
Miami Beach, Florida, currently housing the Shane Rowing Facility; further providing
additional terms and conditions goveming construction of additional improvements,
including a second story on the existing facility for meeting and conference rooms, and on
a parcel adjacent to the facility, construction of a dry dock facility to replace the current
temporary storage structure; further waiving, by 5/7ths vote, the competitive bidding and
appraisal requirements; as set forth by Section 82-39 of the Miami Beach City Code,
finding such waiver to be in the best interest of the City.
PASSED and ADOPTED this 10th day of
July
,2002.
ATTEST:
~rPtU~
CITY CLERK
JMG\RCM\JD\rlr
F:\DDHP\$ALL\ASSEnshane\SHANE.PHearing.RES.doc
APPRCM!DM1O
FORM & LANGUAGI
& FOR UllOM
1---z.- -1J cL
...
CllY OF MIAMI BEACH
COMVIISSION ITEM SUMMARY
m
-
Condensed Title:
A Resolution Approving The Second Amended And Restated/Consolidated Lease Agreement With Miami
Beach Waters ports Center, Inc., For The Continued Operation And Management Of The City-Property At
6500 Indian Creek Drive (Shane Rowing Facility); Providing Additional Terms And Conditions Governing
Construction Of Additional Improvements. Including A Second Story On The Existing Facility For Meeting
And Conference Rooms And, On A Parcel Adjacent To The Facility, Construction Of A Dry Dock Facility To
Replace The Current Temporary Storage Structure; Waiving, By 5/7ths Vote, The Competitive Bidding And
Appraisal Requirements; Set Forth By Section 82-39 Of The City Code, Finding Such Waiver To Be In The
Best Interest Of The City
Issue:
Should the Second Amended and Restated Consolidated Lease Agreement amending the existing lease
agreement be approved, and the competitive bidding and appraisal requirements be waived?
Item SummarY/Recommendation:
Miam i Beach Watersports Center, Inc. (MBW) currently leases City property at 6500 Indian Creek Drive, use
of which is a rowing facility. MBW is requesting to commence extensive capital improvements to the existing
facility comprising construction of a second story for meeting and conference rooms. They also requested to
lease and construct capital improvements, consisting of a dry dock facility (to house rowing sculls). on an
adjacent City-owned parcel, which is currently being used for temporary facilities.
MBW also requested to exercise the additional ten year option for the original property, and for the City to
approve a new Lease to include the adjacent site. with the term to run concurrent with the full term, including
options, on the existing Lease on the original property, which would expire on May 21, 2021. MBW will
construct improvements valued collectively at no less than $1.000.000. such amount to include a minimum of
$700,000, to be provided by MBW, and $300.000, the amount appropriated by the City, on July 26, 2000, to
replace GoO. Bond funds.
The City Attorney has deemed that this may be accomplished through approval and execution of the
attached Second Amended and Restated/Consolidated Lease Agreement having the purpose of
consolidating, in one document, the terms and conditions, and proposed improvements on both sites. The
Administration recommends the Mayor and City Commissioners:
AdODt the Resolution.
Adviso Board Recommendation:
Planning Board recommended approval, on May 28, 2002.
Desi n Review Board, on Jul 11,2001. and June 18, 2002.
Financiallnfonnation:
Source of Amount Account Approved
Funds: 1
D 2
3
4
Finance Dept. Total
Cit Clerk's OffIce Le islatiw Trackin
Jose Damien, Asset Manager
Assistant City Manager
City Manager
AGENDA ITEM
DATE
R7B
7-t o..{) ,...
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE M[AMI BEACH, FLORIDA 33139
www.ci.miami-beach.f1.us
To:
From:
Subject:
COMMISSION MEMORANDUM
Mayor David Dermer and
Members of the City Commission
Jorge M. Gonzalez \ ~
City Manager d U
Date: July 10, 2002
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE SECOND AMENDED AND
RESTATED/CONSOLIDATED LEASE AGREEMENT WITH MIAMI BEACH
WATERS PORTS CENTER, INC., AS LESSEE, FOR THE CONTINUED
OPERATION AND MANAGEMENT OF THE CITY-OWNED PROPERTY
LOCATED AT 6500 INDIAN CREEK DRIVE, MIAMI BEACH, FLORIDA,
CURRENTLY HOUSING THE SHANE ROWING FACILITY; FURTHER
PROVIDING ADDITIONAL TERMS AND CONDITIONS GOVERNING
CONSTRUCTION OF ADDITIONAL IMPROVEMENTS, INCLUDING A
SECOND STORY ON THE EXISTING FACILITY FOR MEETING AND
CONFERENCE ROOMS AND, ON A PARCEL ADJACENT TO THE
FACILITY, CONSTRUCTION OF A DRY DOCK FACILITY TO REPLACE THE
CURRENT TEMPORARY STORAGE STRUCTURE; FURTHER WAIVING, BY
5/7THS VOTE, THE COMPETITIVE BIDDING AND APPRAISAL
REQUIREMENTS; AS SET FORTH BY SECTION 82-39 OF THE MIAMI
BEACH CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST
INTEREST OF THE CITY
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
ANALYSIS
On December 14, 1988, the City of Miami Beach (City) and the Miami Beach Jewish
Community Center (JCC) entered into a Lease Agreement for the JCC's use of the City-
owned property, with parking lot facilities, located at 6500 Indian Creek Drive (Parcel A) for
the development of a rowing facility, at the JCC's sole cost and expense. The property is
currently zoned as uGU" (Government Use) and is designated as Parking (UP") in the Future
Land Use Map of the City's Comprehensive Plan.
In November of 1989, the City and the JCC entered into a First Amendment to the Lease
Agreement that had the effect of enlarging the leased premises on Parcel UA". On February
20,1991, the Mayor and City Commission adopted Resolution No. 91-20246, whereby it
agreed to appropriate and disburse a matching contribution, in the amount of $225,000.00,
toward construction of additional improvements for the rowing facility on Parcel A.
On November 20, 1991, the City and the JCC entered into an Amended and Restated Lease
Agreement primarily for the purpose of extending the term of the Lease and making other
changes relative to securing the City's matching contribution toward the timely construction of
improvements at the rowing facility. The Amended and Restated Lease Agreement provides
for an initial term of twenty (20) years, having commenced on May 22, 1991, and terminating
on May 21,2011. Provided the Lease is not otherwise in default, the Lease is renewable for
one additional term of ten (10) years.
On April 17, 1996, the Mayor and City Commission adopted Resolution No. 96-21955,
approving an Assignment of Lease, assigning all interest in the Amended and Restated
Lease Agreement from the JCC to Miami Beach Watersports Center, Inc. (MBW).
Over past several years, MBW approached the City with its intent to commence, at its sole
cost and expense, including the funding allocated by the City Commission to replace the
$300,000 G.O. Bond allocation, extensive capital improvements to the existing building on the
leased premises on Parcel "A", consisting of a second story to be used primarily as meeting
and conference space, as well as a proposal to lease and make capital improvements,
consisting of the construction of a dry dock facility (to house the rowing sculls), on an
additional parcel of land adjacent to Parcel "A" which is referred to herein as Parcel "B and
which has been utilized over the past 1 0 years for temporary boat storage facilities by the
watersports center.
Accordingly, MBW has also requested to exercise the additional ten (10) year option for
Parcel "A", and for the City to approve a new Lease Agreement to include Parcel "B"; said
term to run concurrent with the full term on the Amended and Restated Lease Agreement
until May 21, 2021.
The City Attomey's Office has determined that this may be effectively accomplished through
approval and execution ofthe attached Second Amended and Restated/Consolidated Lease
Agreement between the City, and MBW. Said Second Amended and Restated/Consolidated
Lease Agreement having the purpose of consolidating, in one document, the terms and
conditions, as well as the proposed improvements, to the existing facility on Parcel "A" (the
premises currently govemed under the Amended and Restated Lease Agreement, dated
November 20,1991), and the new premises on Parcel "B", on which MBW contemplates
additional proposed improvements (the dry dock facility).
As part of the Second Amended and Restated/Consolidated Lease Agreement, MBW will
construct additional improvements to the buildings and improvements presently located on
Parcel "A" and Parcel "B", valued collectively at no less than One Million ($1 ,000,000) Dollars,
such amount to include a minimum of Seven Hundred Thousand ($700,000) Dollars, to be
provided by MBW, and Three Hundred Thousand ($300,000) Dollars, which is the amount
appropriated by the City, via Resolution No. 2000-24016, dated July 26,2000, to be used
toward the proposed improvements. The Proposed Improvements shall be placed on Parcel
"A" and Parcel "B", and shall not be inconsistent with the plans presented by MBW to the City,
and as approved by the Planning Board May 28, 2002 and the Design Review Board on July
11, 2001 and June 18, 2002.
The Second Amended and Restated/Consolidated Lease Agreement also includes provisions
in Article IV to ensure that the general public continues to have access to the facility, with City
review of rates and programming, and mandates that MBW continue to develop, provide and
enhance annual educational programming for the residents for Miami Beach. The Second
Amended and Restated/Consolidated Lease Agreement also includes additional lease
clauses to ensure the City's interests are protected.
Section 82-36 through 39, of the Miami Beach City Code, governing the sale/lease of public
Property, provides that the lease of any City-owned property for a period of five years or
more, including option periods, requires the following:
. a public bidding process
. a Planning Department analysis
. an independent appraisal to determine the value of the leasehold interest
. a public hearing to obtain citizen input
Section 82-39 further provides for the waiver of the competitive bidding requirement, by
5/7ths vote of the Mayor and City Commission, upon a finding by the Mayor and City
Commission that the public interest would be served by waiving such conditions. There is
also a requirement that there be a minimum fifteen (15) day advertised notice advising ofthe
public hearing.
While Parcel "A" is governed under the original lease and the Amended and Restated Lease
Agreement, which provided for the extension term presented herein, the inclusion of Parcel
"B", would require compliance with the aforementioned sections of the Code. Therefore, on
June 19, 2002, the Mayor and City Commission adopted a resolution setting the public for
July 10, 2002 (at today's Commission Meeting). Furthermore, the resolution presented herein
recommends waiving the competitive bidding and appraisal requirements, finding such
waivers to be in the best interest of the City
Based on the foregoing, the Administration recommends that the Mayor and City Commission
the approve the attached Second Amended and Restated/Consolidated Lease Agreement
with Miami Beach Waters ports Center, Inc., which includes exercising the ten (10) year
renewal option, for the continued operation and management of the City-owned property
located at 6500 Indian Creek Drive, currently housing the Shane Rowing Facility and waive
the competitive bidding and appraisal requirements set forth by Section 82-39 of the City
Code, finding such waiver to be in the best interest of the City.
JMG\CMC\JD\r1r
T:\AGENDA\2002\JUN1902\CONSENT\SHANE.PHearing.MEM.doc
City of Miami Beach
Planning Board
Staff Report and Recommendations
TO:
Chairperson and Members
Planning Board
Jorge G. Gomez, AICP kfI.-
Planning and Zoning Dir~r
May 28, 2002
FROM:
SUBJECT: File No. 1568
6500 Indian Creek Drive, Shane Watersports Center
The applicant, Miami Beach Watersports Center, Inc., is requesting Planning Board review of a
proposed joint government/private use of property zoned GU (Government Use) for an expansion
of an existing building, and addition of a new building. The proposed project is on 1.7 acres of City-
owned property located on the west side of Indian Creek Drive between 65th and 67th Streets.
BACKGROUND
Section 142-423 of the Land Development Regulations of the City Code requires that in all cases
involving the use of GU-zoned property by the private sector, or through a joint government/private
project, the proposed development shall be reviewed by the Planning Board prior to being sent to
the City Commission.
The Shane Watersports Center was originally approved by the Design Review Board (DRB) on
March 12, 1991, and opened for boaters approximately 10 years ago. The existing building has 8,730
square feet of space, consisting of storage facilities for boats, a training room for athletes, and a
conference room. The proposed expansion project was approved by the DRB on July 11, 2001, and
adds a 6,000 square foot second floor to the main building, and a 4,000 square foot storage facility
for boats as a separate building. The site also currently includes a municipal parking lot with 76
metered spaces.
Zonin!! and Future Land Use. The subject property is located in the GU (Government Use) zoning
district. The adjacent property to the east is zoned CD-2 (Commercial Medium Intensity), to the
west lies Indian Creek, and to the north and south are RM-2 (Residential Medium Density) districts.
The Future Land Use Map of the City's Comprehensive Plan designates the site as P (parking)
for purposes of future development.
Planning Board
File No. 1568 - Shane Watersports Center
May 28, 2002
Page 2
Existine: Land Uses - The subject site is occupied by the existing one story Shane Watersports
Center, and a metered, 76 space public parking lot. There are low scale hotels to the north and south,
and an apartment building to the east across Indian Creek Drive.
REVIEW CRITERIA
Sec. 82-38 of the City of Miami Beach requires that any proposed sale or lease of city-owned land
be analyzed from a planning perspective in order that the City Commission and the public are fully
apprised of all conditions relating to the proposed sale or lease. What follows are the eight criteria
prescribed in said ordinance and a response to each:
1. Whether or not the proposed use is in keeping with City goals and objectives and
conforms to the City Comprehensive Plan.
The Future Land Use Map of the City's Comprehensive Plan designates the site as P
(parking) which allows parking lots and commercial uses if the parcel fronts a street across
from another future land use category that allows commercial uses. This site fronts on Indian
Creek Drive, and it is across that street from a parcel with a CD-2 FLU category, and is
therefore consistent with the Comprehensive Plan requirement. As proposed by the
applicant, the portion of the site devoted to parking exceeds 50% of the total area of the
parcel after the new construction is built. There are 76 public parking spaces currently on-
site, and 69 are expected to be retained after the proposed expansion.
2. The impact on adjacent property, including the potential positive or negative impacts
such as diminution of open space, increased traffic, noise level or enhanced property
values, improved development patterns and provision of necessary services. Based on
the proposed use of the property, the City shall determine the potential impact of the
project on City utilities and other infrastructure needs and the magnitude of costs
associated with needed infrastructure improvements. Should it become apparent that
further evaluation of traffic impact is needed, the proponent shall be responsible for
obtaining a traffic impact analysis from a reputable traffic engineer.
One new building will be built on a portion of the existing parking lot and vacant land. No
quality open space will be lost by adding a building at the proposed location on this site.
Traffic may increase due to the increased capacity to store boats, but it is not expected to be
significant. No utility or infrastructure enhancements are necessary as a result of the
proposed project.
Planning Board
File No. 1568 - Shane Watersports Center
May 28, 2002
Page 3
3. A determination as to whether or not the proposed use is in keeping with a public
purpose and community needs, such as expanding the City's revenue base, reducing
City costs, creating jobs, creating a significant revenue stream and improving the
community's overall quality of life.
The applicant is not proposing to change the existing use, merely to expand it, and the
existing use serves a unique niche in the City's service sector. Expanding the use will
encourage an increase in visitors and spectators to the City, and improve the ability of those
residents interested in rowing to enjoy their sport.
4. Determination as to whether or not the development is in keeping with the surrounding
neighborhood, will block views, or create other environmental intrusions, and
evaluation of the design and aesthetic considerations of the project.
This project received approval from the Design Review Board on July 11, 2001 for the
design of the proposed additions, and the specific points addressed by this criterion were
taken into account by the DRB when they reviewed and approved this project.
5. The impact on adjacent properties, whether or not there is adequate parking, street,
and infrastructure needs.
The proposed project is not expected to negatively impact any of the infrastructure, street or
parking conditions in the area. Parking requirements for the expanded space and the existing
gym and storage space totals 69 spaces. Seventy-six (76) spaces exist now, though 7 of those
will be eliminated during the construction.
6. A determination as to whether or not alternatives are available for the proposed
disposition, including assembly of adjacent properties, and whether the project could
be accomplished under a private-ownership assembly.
The proposed project is an expansion of an existing use, so the possibility of private
assembly may be prohibitively expensive to produce the same size and capabilities in a new
facility. Adjacent properties are already developed.
7. Within the constraints of public objectives, the department should examine financial
issues such as job generation, providing housing opportunities, and the return to the
City for its disposition of property.
There will be no housing opportunities created here, and the return to the City will be in the
form of increased revenues from hotel and sales taxes due to increased use of the facility by
visitors from across the country. This proposed expansion has already resulted in one new
Planning Board
File No. 1568 - Shane Watersporls Center
May 28, 2002
Page 4
hire by the Center, one more is in the hiring phase, and the hire of 1-3 other new positions
within a year of completion is expected.
8. Such other items as the Planning Department may deem appropriate in analysis ofthe
proposed disposition.
The Design Review Board already approved the plans for the proposed expansion and
applied a number of conditions that would mitigate the impact this proposal may have on the
surrounding neighborhood and urban environment.
STAFF ANALYSIS
Staffis satisfied that this project meets the criteria listed above, and that this project is a benefit to
the City and community. As an explanation of the parking requirements, the City Code requires 1
space per 60 feet of meeting rooms, 1 space per 300 feet of fitness centers, and 1 space per 1000 feet
of warehouse/storage space. With 3300 square feet of meeting rooms in the new second floor,
roughly 1800 square feet of space in the two training rooms downstairs, and the more than 4,000
square feet in each of the existing and new boat storage areas, the total parking requirement comes
to 69 spaces. The present parking configuration meets this need easily, but the construction plans
call for the removal of7 of the current 76 space, reducing the total to 69, exactly what is required
for this project.
STAFF RECOMMENDATION
This application is presented to the Planning Board for review and comment, with a staff
recommendation for approval.
JGG\ML\SAF
c. Gary Held, First Assistant City Attorney
\\CH2\YOL 1\PLANI$PLB\2002\May\1568 - Watersports Center\1568 - Watersports Center reportdoc
CITY OF MIAMI BEACH
a Florida municipal corporation
Lessor
and
MIAMI BEACH WATERSPORTS CENTER, INC.
a Florida corporation not-for-profit
Lessee
AMENDED AND RESTATED/CONSOLIDATED LEASE
July 10, 2002
TABLE OF CONTENTS
ARTICLE
PAGE
I. DEMISE BYLESSOR .......................................................................................... 3
Paragraph 1.1 Lease of Property .................................................................3
Paragraph 1.1.1 Parcel "A" Legal Description................................................. 4
. Paragraph 1.1.2 Parcel "B" Legal Description................................................. 4
II. DURATION AND TERM ..........................................................................,............ 4
III. AMOUNT OF RENT .............................................................................................4
IV. USE AND POSSESSION OF DEMISED PREMISES .......................................... 5
Paragraph 4.1 Permitted uses defined ........................................................ 5
Paragraph 4.2 Goals and Priorities .............................................................. 6
Paragraph 4.3 Operation and Management of the Watersport Center ........6
V. TERMINATION OF PRIOR AGREEMENTS ........................................................ 7
VI. NET LEASE.......................................................................................................... 7
VII. PROVISIONS REGARDING PAYMENT OF TAXES ........................................... 8
Paragraph 7.1 Lessee Pays All Taxes ......................................................... 8
Paragraph 7.2 Contesting Tax Validity......................................................... 9
Paragraph 7.3 Failure or Refusal to Pay Tax............................................. 10
Paragraph 7.4 Proration................................ .................. ........ ................... 10
VIII. LESSOR'S INTEREST NOT SUBJECT TO MECHANIC'S OR
MATERIALMEN'S LIENS .................................................. 11
Paragraph 8.1 Notice to Third-Parties Regarding Liens ............................ 11
Paragraph 8.2 Releasing and Discharging Liens ....................................... 11
Paragraph 8.3 Leasehold Mortgage........................................................... 12
IX. LESSOR'S RIGHTS AND REMEDIES ............................................................... 13
Paragraph 9.1 Landlord-Tenant Relationship ............................................ 13
Paragraph 9.2 All Rights and Remedies .................................................... 13
Paragraph 9.3 Rights and Remedies Cumulative...................................... 14
X. INDEMNIFICATION OF LESSOR AGAINST LIABILITy.................................... 14
Paragraph 10.1 Indemnification Clause ....................................................... 14
Paragraph 10.2 Commercial General Liability Policies ................................ 14
Paragraph 10.3 Indemnification Clause For Lease Challenges ................... 15
Paragraph 10.4 Compliance With All Laws, Etc ......................................... .16
Paragraph 10.4.1 Rules On Hazardous Materials ........................................... 16
Paragraph 10.4.2 Hazardous Materials Defined ............................................. 17
Paragraph 10.4.3 Further Disclosure of Hazardous Materials ........................ 18
Paragraph 10.4.4
Paragraph 10.4.5
Paragraph 10.4.6
Lessor's Right to Inspect.................................................... 18
Default................................................................................ 18
Lessee Receives Property "As Is" ...................................... 19
XI. FIRE AND WINDSTORM, ETC. INSURANCE PROVISIONS............................ 19
Paragraph 11.1 Property All Risk Coverage Policies ................................... 19
Paragraph 11.2 Builders' Risk Insurance Policies ....................................... 19
Paragraph 11.3 Use Of Insurance Proceeds ............................................... 20
Paragraph 11.4 Financing of Premiums ...................................................... 21
Paragraph 11.5 Default After Casualty........................................................ 21
Paragraph 11.6 Excess Insurance Proceeds............................................... 22
XII. LESSEE'S DUTY TO PAY INSURANCE PREMIUMS ....................................... 23
Paragraph 12.1 Obligation and Proof of Payment ....................................... 23
Paragraph 12.2 Lessor's Option to Pay....................................................... 23
XIII. ASSIG NMENT.................................................................................................... 24
Paragraph 13.1 Right and Conditions of Assignments ................................24
Paragraph 13.2 Notice and Approval........................................................... 24
Paragraph 13.3 Transfers or Assignment By Leasehold Mortgagee ........... 25
XIV. CONDEMNATION CLAUSE............................................................................... 25
Paragraph 14.1 Division of Condemnation Proceeds .................................. 25
Paragraph 14.2 Lessee's Improvements ..................................................... 26
Paragraph 14.3 Taking Rendering Premises Unsuitable for Permitted Uses. 26
XV. ADDITIONAL IMPROVEMENTS........................................................................ 26
Paragraph 15.1 Proposed Improvements .................................................... 26
Paragraph 15.2 Lessee's Responsibility for Design and Approvals............. 27
Paragraph 15.3 Preliminary Plans and Specifications ................................. 27
Paragraph 15.4 Public Facilities and Concurrency...................................... 28
Paragraph 15.5 Construction Plans and Specifications ............................... 28
Paragraph 15.6 Conditions Precedent to Lessees Commencement of
Construction of Proposed Improvements ...........................29
Paragraph 15.7 Lessor's Cooperation in Obtaining Approvals .................... 30
Paragraph 15.8 Commencement of Construction of Proposed Improvements30
Paragraph 15.8.1 Unavoidable Delays ........................................................... 31
Paragraph 15.9 Completion of Construction of Proposed Improvements.... 32
Paragraph 15.10 Licensed Architects and Engineers .................................... 34
Paragraph 15.11 Construction Cost Certification ........................................... 34
Paragraph 15.12 Completion Bond................................................................ 34
Paragraph 15.13 Diligence in Construction.................................................... 34
XVI. DEED RESTRICTIONS CONCERNING THE USE OF THE PROPERTY ........ 35
Paragraph 16.1 Restrictions ................................................. ....................... 35
Paragraph 16.2 Violation of Restriction is Event of Default ......................... 36
XVII. DEFAULT CLAUSE............................................................................................ 36
Paragraph 17.1 Event of Default.................................................................. 36
Paragraph 17.2 Statutory Landlord - Tenant Proceedings Apply................. 37
Paragraph 17.3 Thirty Day Cure Period....................................................... 37
Paragraph 17.4 Lessor's Other Remedies................................................... 38
Paragraph 17.5 Liquidated Damages .......................................................... 38
Paragraph 17.6 Receiver ............................................................................. 39
XVIII. LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR 39
Paragraph 18.1 Lessee's Covenant Regarding Maintenance and Repair 39
Paragraph 18.2 Lessee's Covenant Regarding Utilities............................... 39
XIX. DEMOLITION CLAUSE...................................................................................... 40
Paragraph 19.1 Lessee's Right to Demolish Conditioned............................ 40
Paragraph 19.2 Value of Reconstruction ..................................................... 40
Paragraph 19.3 Expense of Demolition and Right to Salvage..................... 40
XX. ADDITIONAL COVENANTS OF THE LESSEE .................................................41
Paragraph 20.1 Destruction or Casualty No Entitlement to Termination ..... 41
Paragraph 20.2 No Subordination of Lessor's Title ..................................... 41
Paragraph 20.3 Covenant Regarding Surrender ......................................... 41
Paragraph 20.4 Further Covenant Regarding Encumbrances .....................41
XXI. COVENANT OF QUIET ENJOYMENT ..............................................................42
XXII. LESSOR'S RIGHT OF ENTRy.......................................................................... 42
XXIII. NO REPRESENTATIONS BY LESSOR ............................................................ 42
XXIV. LESSEE TO COMPLY WITH ALL LAWS .......................................................... 43
Paragraph 24.1 Lessee's Compliance With All Laws ..................................43
Paragraph 24.2 Lessee's Obligation to Pay Fines, Etc................................ 43
Paragraph 24.3 No Discrimination Clause ................................................... 43
XXV. SURRENDER OF THE PREMISES ................................................................... 43
Paragraph 25.1 Surrender of the Premises .................................................43
Paragraph 25.2 No Subleases, Etc..............................................,............... 44
XXVI. FORCE MAJEURE .......... ....... ............ ...... ... .... ................................. ..................44
XXVII.MISCELLANEOUS PROViSiONS...................................................................... 45
Paragraph 27.1 Grace Periods Run Concurrently....................................... 45
Paragraph 27.2 Arrearages ......................................................................... 45
Paragraph 27.3 Landlord-Tenant Relationship Regarding Collections ........ 45
Paragraph 27.4 Lessor's Remedies Not Otherwise Provided ...................... 45
Paragraph 27.5 Receivers ........................................................................... 46
Paragraph 27.6
Paragraph 27.7
Paragraph 27.8
Paragraph 27.9
Paragraph 27.10
Paragraph 27.11
Paragraph 27.12
Paragraph 27.13
Paragraph 27.14
Paragraph 27.15
Paragraph 27.16
Signature Page
Notary Page
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "0"
Cooperation........................................................................ 46
Captions............................................................................. 46
Index.................................................................................. 46
Laws of Florida Apply......................................................... 47
Covenants Running With the Land .................................... 47
Time Is of The Essence .....................................................47
Notice................................................................................. 47
Attorneys' Fees .................................................................. 48
Venue................................................................................. 48
L 'L"t' L' bOlo
essor s Iml atlon on la Ilty............................................ 49
Recording in the Public Records ........................................ 49
........................................................................................... 50
........................................................................................... 51
...........................................................................................52
...........................................................................................53
.............................................................................................54
...........................................................................................55
SECOND AMENDED AND RESTATED/CONSOLIDATED LEASE
THIS INDENTURE (the "Lease"), made and entered into at Miami Beach, Miami-
Dade County, Florida, this 10th day of Julv. 2002, by and between:
CITY OF MIAMI BEACH,
a Florida municipal corporation
(hereinafter referred to as "Lessor")
and
MIAMI BEACH WATERSPORTS CENTER, INC.
a Florida not-for-profit corporation
(hereinafter referred to as "Lessee")
WIT N E SSE T H:
WHEREAS, the Lessor is the owner of a certain parcel of land with parking lot
facilities, currently zoned as "GU", located at 65th Street and Indian Creek Drive, Miami
Beach, Florida; and
WHEREAS, on December 14, 1988, Lessor and Miami Beach Jewish Community
Center, Inc. (JCC), a not-for-profit corporation, entered into a Lease Agreementforthe use
of a portion of the property located at 65th Street and Indian Creek Drive, herein below
referred to as Parcel "A", to construct, operate, and maintain a rowing facility, at the JCC's
sole cost and expense; and
WHEREAS, on November 21, 1989, Lessor and the JCC entered into a First
Amendment to the Lease Agreement which had the effect of enlarging the leased premises
on Parcel "A"; and
WHEREAS, on February 20, 1991, the Mayor and City Commission adopted
Resolution No. 91-20246, whereby it agreed to appropriate and disburse a matching
1
contribution, in the amount of $225,000.00, toward construction of additional improvements
for the rowing facility under the Lease Agreement; and
WHEREAS, on November 20, 1991, Lessor and the JCC entered into an Amended
and Restated Lease Agreement primarily for the purpose of extending the term of the
Lease and making other changes relative to securing the City's matching contribution
toward the timely construction of improvements at the rowing facility; and
WHEREAS, under the Amended and Restated Lease Agreement, the Lease
contains an initial term for a period of twenty (20) years, having commenced on May 22,
1991, and terminating on May 21, 2011; provided the Lease is not otherwise in default, the
Lease is renewable for one additional term of ten (10) years; and
WHEREAS, on April 17 , 1996, the Mayor and City Commission adopted Resolution
No. 96-21955, approving an Assignment of Lease, assigning all interest in the foregoing
Amended and Restated Lease Agreement from the JCC to Miami Beach Watersports
Center, Inc., as Lessee; and
WHEREAS, Miami Beach Watersports Center, Inc., as the current Lessee, has
approached the City with its intent to commence, at its sole cost and expense, extensive
capital improvements to the existing building on the leased premises on Parcel "A",
consisting of a second story thereto for meeting and conference space, as well as a
proposal to lease and make capital improvements, consisting of the construction of a dry
dock facility, on an additional parcel of land adjacent to Parcel"A" and on the property
located at 65th Street and Indian Creek Drive, herein below referred to as Parcel liB; and
WHEREAS, accordingly, Miami Beach Watersports Center, Inc. has also requested
that, as to its existing Amended and Restated Lease Agreement, the Mayor and City
Commission approve the exercise of the additional ten (10) year option for Parcel"A", and
also approve a new Lease Agreement for Parcel "B"; said term to run concurrent with the
full term on the Amended and Restated Lease Agreement on May 21,2021; and
WHEREAS, the Administration and City Attomey's Office have determined that this
may be effectively accomplished through approval and execution of the attached Second
Amended and Restated/Consolidated Lease Agreement between the City, as Lessor, and
Miami Beach Watersports Center, Inc., as Lessee; said Second Amended and
2
Restated/Consolidated Lease Agreement having the purpose of consolidating, in one
document, the terms and conditions, as well as the proposed improvements, to the existing
facility on Parcel "A" (the premises currently govemed under the Amended and Restated
Lease Agreem~nt, dated November 20, 1991), and the new premises on Parcel "B", on
which Lessee contemplates additional proposed improvements (the dry dock facility); and
WHEREAS, notwithstanding the consolidation (for the existing facilities on Parcel
"A" and the new improvements on Parcel "B") into one document, the resulting Second
Amended and Restated/Consolidated Lease Agreement would not have the effect of
extending Lessee's term beyond that currently provided in the Amended and Restated
Lease of November 20, 1991; and
WHEREAS, additionally, as the Second Amended and Restated/Consolidated
Lease Agreement shall also include Parcel "B", the term for same shall not extend beyond
the date of expiration of the existing November 21, 1991 Agreement, including the renewal
term therein, of May 21,2021.
NOW THEREFORE, the Lessor and the Lessee, for and in consideration of the
mutual covenants, agreements and undertakings herein contained, and in further
consideration of the payments herein mentioned, made and to be made, do by these
presents mutually covenant and agree as follows:
ARTICLE I - DEMISE BY LESSOR
1.1 LEASE OF PROPERTY.
Upon the terms and conditions herein stated, and in consideration of the payment
from time to time of the rents herein stated, and for and in consideration of the
prompt performance by the Lessee of all of the covenants hereinafter contained by
the Lessee to be kept and performed, the performance of which are declared to be
an integral part of the consideration to be fumished by the Lessee, the Lessor does
hereby lease, let and demise unto the Lessee, and the Lessee does hereby lease of
and from the Lessor, the following described property situate, lying and being in
Miami-Dade County, Florida, together with all buildings and other improvements
3
located thereon, to-wit:
1.1.1 Parcel "A" Legal Description - Exhibit "A"
1.1.2 Parcel "B" Legal Description - Exhibit "B"
subject to the following:
(a) Conditions, restrictions and limitations, now appearing of
record;
(b) City and/or County Zoning Ordinances now existing, or which
may hereafter exist during the life of this lease;
(c) All matters shown on the Boundary Survey;
(d) All of the terms, covenants and conditions contained in this
Lease.
Parcel "A" and Parcel"B" shall, collectively, be hereinafter sometimes referred to as
either the "Demised Premises", "Premises", "Property", the "Rowing Facility", orthe
"Facility". The Property, and the respective delineations of Parcel "A" and Parcel "B"
therein, is specifically delineated in the survey attached and incorporated as Exhibit
"C".
ARTICLE II - DURATION AND TERM
The duration and term of this Lease shall be for a period of eighteen (18) years, nine (9)
months, and twenty one (21) days, commencing on the L day of Auqust, 2002 (the
"Commencement Date"), and expiring on the 21s1 day of Mav, 2021 (the "Maturity Date").
Lessor and Lessee herein acknowledge that the Term provided herein in no way extends
or otherwise goes beyond the date of Lessee's option term, as previously provided in the
Amended and Restated Lease Agreement, dated November 20, 1991.
ARTICLE III - AMOUNT OF RENT
The Lessee covenants and agrees to pay to the Lessor an annual rental of Ten Dollars
($10.00), payable annually in advance, the first such annual payment being due and
payable on the 1 sl day of Auqust, 2002, and on the 1 st day of Auqust each and every year
thereafter during the entire term of the Lease.
4
ARTICLE IV - USE AND POSSESSION OF DEMISED PREMISES
4.1 PERMITTED USES DEFINED.
The Demised Premises shall be used by the Lessee solely and exclusively for the
continued operation and maintenance of a Rowing Facility, and any and all activities
related thereto, as well as construction of new improvements to the Facility. Said
improvements shall include, respectively, the construction of a second story on the
building currently located on Parcel "A" and the construction of a new building on
Parcel "8" to replace the temporary structure currently located thereon, for a dry
dock facility (hereinafter collectively referred to as the Rowing Facility or the
Facility). Lessee shall at all times be responsible for operation and maintenance of
the Rowing Facility, and the Facility shall be open to the general public, provided
that users shall meet the minimum safety requirements of the United States Rowing
Association and the operational requirements of Lessee, as same shall be
submitted to Lessor for Lessor's approval. The Rowing Facility shall not be used as
a restaurant or bar; however, there may be catered events (e.g. picnic, barbeque,
dinner, luncheon, etc.), conferences and meetings. In the event that Lessee uses
the Premises for any purposes not expressly permitted herein, such use shall be
considered an Event of Default and the Lessor shall be entitled to all the remedies
set forth in Article XVII hereof, or without notice to Lessee, restrain such improper
use by injunction or other legal action.
Lessee may conduct other activities normally conducted by similar public rowing
facilities on the Property, if approved by the City Manager, or, at the Manager's
option and discretion, by the City Commission. Additional uses not specifically
enumerated above may be approved by the City Commission. In the event uses
are introduced to the Property that are deemed to be nonconforming because such
uses do not fall within the above list of permitted uses, and were introduced by the
Lessee without City Manager and/or City Commission approval as provided for
above, the Lessor may give Lessee notice of default in accordance with Article XVII,
unless the Lessee terminates such uses until it obtains the required City Manager
5
and/or City Commission approval. Failure of Lessee to terminate such
nonconforming uses and request City Manager and/or City Commission approval for
such use within thirty (30) days after notice as provided for herein, unless Lessee
decides,to abandon such nonconforming uses, shall entitle Lessor to pursue the
termination of this Lease as provided for elsewhere in this Lease.
Subject to the terms of this Agreement, the Lessee shall have the primary use and
sole occupation of the Demised Premises and shall be responsible for its
management and maintenance.
4.2 GOAL AND PRIORITIES.
The Rowing Facility shall at all times be operated, maintained, and managed as a
multi-purpose community resource centered on an outstanding waterway which
provides:
Enjoyment of the beautiful Indian Creek Waterway
Education for children and adults
A unique and enjoyable venue for rowing and other watersport related
activities, special events, receptions, and community meetings
A catalyst for community promotion of its waterway usage, and enhancement
of rowing-related water recreational education programs
A popular and memorable destination for rowing enthusiasts
Lessor and the Lessee intend that the activities programmed in and pertaining to
the Rowing Facility continuously increase in scope and number so that the Facility
favorably impacts an increasing number of residents and visitors.
4.3 OPERATION AND MANAGEMENT OF THE WATERSPORT CENTER.
All activities undertaken at the Rowing Facility shall be to advance the purposes set
forth in Paragraph 4.2 above. Subject to the terms, limitations and required
approvals contained in this Agreement, Lessee shall:
(a) Manage, operate, maintain and direct the operations and activities of the
6
Rowing Facility;
(b) Maintain the Property, and all improvements thereto, including but not limited
to, the building, dry dock facility, seawall, docks and piers;
(c) Develop and implement programs and activities which support and promote
the purposes set forth in Paragraph 4.2; and schedule public use of the
Demised Premises pursuant to operating policies and procedures consistent
with those to be submitted by Lessee and approved by Lessor pursuant to
Paragraph 4.1 , which shall include all fees to be charged, as same shall be
approved by Lessor, reflecting the reasonable expense of allowing such use,
including but not limited to the development and implementation of
educational programs and reduced rates for City of Miami Beach residents,
as mutually agreed upon by the City and Lessee. The City shall have the
right to use the Demised Premises, including but not limited to the meeting
and conference rooms, on a space available basis, at no charge. Duly
constituted rowing clubs with membership primarily situated in the City of
Miami Beach shall also have the right to use the Rowing Facility at reduced
rates. With regard to this Subsection (c), the City reserves the right, at its
option and discretion, to evaluate Lessee's programs and activities, as well
as fees to be charged, throughout the term of this Lease but, in any event,
no more than annually during any given lease year herein.
ARTICLE V - TERMINATION OF PRIOR AGREEMENTS
Upon execution of this Lease all prior agreements between the parties hereto, including but
not limited to the Amended and Restated Lease Agreement, dated November 20, 1991
(collectively the Prior Agreements), are hereby terminated and shall be of no further force
or effect, except that liabilities or obligations arising under the Prior Agreements shall
continue to be binding on the Lessee under this Lease.
ARTICLE VI - NET LEASE
Lessee shall pay to the Lessor absolutely net throughout the term of this Lease, the rent
7
and other payments hereunder, free of any charge, assessments, impositions, expenses or
deductions of any kind and without abatement, deduction or setoff, and under no
circumstances or conditions, whether now existing or hereafter arising, or whether within or
beyond the present contemplation of the parties, shall the Lessor be expected or required
to make any payment of any kind whatsoever (unless reimbursed by Lessee) or be under
any other obligation or liability as to the Premises, except as otherwise specifically stated in
this Lease; and the Lessee agrees to pay all costs and expenses of every kind and nature
whatsoever arising out of or in connection with the Premises that may arise or become due
during the term of this Lease.
ARTICLE VII - PROVISIONS REGARDING PAYMENT OF TAXES
7.1 LESSEE PAYS ALL TAXES.
Lessee covenants and agrees with Lessor that as a further consideration for the
making of this Lease, the Lessee is obligated to and will pay all taxes levied or
assessed at any or all times for and after the year in which the Commencement
Date occurs, and during the term hereby demised, by any and all taxing authorities,
and including not only ad valorem and personal property taxes, but also special
assessments and liens for public improvements, and including in general all taxes,
sales taxes, tax liens, or liens in the nature of taxes which may be assessed, levied
or imposed against the Demised Premises or this Lease, including the land and all
buildings, (and such personal property by way of fumishings or equipment which the
Lessee has or may bring upon or be obligated to bring upon the Property), during
the term of this Lease or any of the Prior Agreements; but in the event any of these
taxes and assessments are payable according to their terms in installments, then
the Lessee shall have the right to pay the same as such installments fall due,
provided that the Lessee must effect payment of these taxes not later than thirty
(30) days before the time when the nonpayment thereof would render them
delinquent. The parties agree that in the event any special assessments are
payable in installments, the Lessee shall be responsible for such installments during
8
the term of this Lease, and may pay such sums in installments, and the Lessor shall
be responsible for any such assessments extending beyond the term of this Lease.
7.2 CONTESTING TAX VALIDITY.
If Lessee desires to contest the validity of any tax or tax claim, Lessee may do so
without being in default hereunder as to its obligation to pay taxes, provided Lessee
gives Lessor written notice of its intention to do so and fumishes Lessor with a bond
from a corporate surety qualified to do business in the State of Florida, in one and
one-half times the amount of the tax item or items intended to be contested,
conditioned to pay the tax or tax items when the validity thereof shall finally have
been determined, which written notice and bond shall be given by Lessee to Lessor
not later than a day which is thirty (30) days before the tax item or items proposed to
be contested would otherwise become delinquent. If prior to the giving of such
bond, Lessee shall have paid into the Registry of a court of competent jurisdiction a
sum of money to payor apply on the payment of such taxes, and if such money is
so paid into the Registry of the Court that it may never be withdrawn excepting for
its application upon the payment of the contested taxes without the consent in
writing of the Lessor hereunder first had and obtained, then the amount of the bond
required by the terms of this paragraph may be diminished by the amount so paid
into the Registry of the Court. If there shall have been paid into the Registry of the
Court in the manner prescribed hereinabove a sum equal to one and one-half times
the amount of the tax being contested, then no bond, as otherwise provided for in
this Article, need be given by Lessee to Lessor. None of the provisions of this
Paragraph 7.2 shall be available to Lessee unless and until the enforcement of the
contested tax, whether by way of issuance of Tax Certificates, Tax Deed, reversion
to the taxing authority, or otherwise, is fully enjoined by a court of competent
jurisdiction or is otherwise effectively stayed not later than a day which is thirty (30)
days before the particular tax item or items proposed to be contested shall become
delinquent; if such injunction or other stay is not secured by Lessee within that time,
then the Lessor is authorized as provided for in Paragraph 7.3 of this Article VII, to
9
pay such taxes as then assessed and levied, notwithstanding any pending or
proposed suit to contest those taxes.
7.3 FAILURE OR REFUSAL TO PAY TAX.
In the event the Lessee shall for any reason fail, refuse or neglect to pay any taxes
referred to in Paragraph 7.1 of this Article VII within the time specified therein, or if
the Lessee desires to contest, or by suit contests any such tax, but for any reason
fails, refuses or neglects to comply with the provisions of Paragraph 7.2 of this
Article VII within the time therein specified, then and in any such event, the Lessor
may at its option pay such taxes as then assessed and levied and the amount or
amounts of money so paid, including reasonable attorneysO fees and expenses
which may have been reasonably incurred in connection with such payments or by
reason of the nonpayment thereof by the Lessee, together with interest on all such
amounts at the rate of ten per cent (10%) per annum from the date of payment,
shall be repaid by the Lessee to the Lessor and the payment thereof may be
collected or enforced by Lessor in the same manner as though such amounts were
an installment of rent specifically required by the terms of this Lease to be paid by
Lessee unto Lessor; but the payment of any such taxes by the Lessor shall not
waive the default thus committed by the Lessee.
7.4 PRORATION.
Notwithstanding the foregoing, taxes (after deducting all available discounts if
utilized) for the last year of the term of this Lease occurs, will be prorated as of the
Termination Date of the term of this Lease, Lessee paying such taxes for that
portion of the termination year preceding the date of termination of this Lease, and
Lessor paying the balance of such taxes for such year, if any.
10
ARTICLE VIII - LESSOR'S INTEREST NOT SUBJECT TO MECHANICS' OR
MATERIALMEN'S LIENS
8.1 NOTICE TO THIRD PARTIES REGARDING LIENS.
All persons and parties, corporate and otherwise, are hereby notified of the fact that
the Lessee does not and shall never under any circumstances have the power, right
or authority to subject any interest of the Lessor in the Demised Premises to any
mechanics' or materialmen's liens or liens of any other kind or nature; and all
persons dealing with the Lessee are hereby notified of the fact that they must look
only to the interest of the Lessee in the Demised Premises and not to any interest of
the Lessor.
8.2 RELEASING AND DISCHARGING LIENS.
Lessee covenants and agrees with Lessor that Lessee will not permit or suffer to be
filed or claimed against the interest of the Lessor or the Lessee in the Demised
Premises during the continuance of this Lease any lien or claim of any kind, and if
any such lien is claimed or filed it shall be the obligation of the Lessee, within thirty
(30) days after the lien or claim shall have been filed among the Public Records of
Miami-Dade County, Florida, or within thirty (30) days after the Lessor shall have
been given notice of any such lien or claim and shall have transmitted written notice
of the receipt of notice of such lien or claim unto the Lessee (whichever thirty (30)
day period expires earlier), to cause the Demised Premises to be released and
discharged from such lien or claim, either by payment into court of the amount
necessary to relieve, release and discharge the Demised Premises from such lien
or claim, or in any other manner that as a matter of law will result, within the period
of thirty (30) days, in releasing and discharging the Lessor and the title of the Lessor
from such lien or claim; and Lessee covenants and agrees, within the period of thirty
(30) days, so to cause the Demised Premises and the Lessor's interests therein to
be released from the legal effect of every such lien or claim.
11
8.3 LEASEHOLD MORTGAGE.
Notwithstanding the foregoing paragraph 8.2, Lessee may encumber the Property
with a leasehold mortgage as follows. Lessor agrees to execute a non-disturbance
agreement (containing language reasonably acceptable to the Lessor) for the
benefit of Lessee and the holder of any leasehold mortgage (the "Leasehold
Mortgage") and to cooperate with Lessee's efforts to obtain financing, including the
execution of any necessary documents, so long as such documents are subject to
the reasonable approval of the Lessor's attorney. No leasehold mortgage shall be
valid or of any force or effect unless and until Lessor has consented thereto in
writing (which consent shall be conditioned upon Lessee's compliance with this
Paragraph 8.3) and a true copy of the original of each instrument creating and
effecting such mortgage, certified by Lessee to be a true copy of such instrument,
together with written notice containing the name and post office address of the
Leasehold Mortgagee, has been delivered to the Lessee. Further, the Leasehold
Mortgage shall specifically provide:
(a) That the Leasehold Mortgage is subject to all of the terms, covenants and
conditions of this Lease;
(b) That the Leasehold Mortgage encumbers only the Lessee's interest created
by this Lease in the Property and the Building;
(c) That the rights of the Lessor pursuant to this Lease will not be affected by
the terms of the Leasehold Mortgage;
(d) That the holder of the Leasehold Mortgage shall waive all right and option to
obtain and apply proceeds of any insurance or the proceeds of any
condemnation award toward payment of the sums secured by the Leasehold
Mortgage to the extent such proceeds are required by the terms of this
Lease for the demolition, repair or restoration of the Property;
( e) That the holder of the Leasehold Mortgage shall agree to send Lessor copies
of all notices to Lessee in which such mortgagee claims that there exists one
or more uncured defaults under the terms and provisions of the Leasehold
Mortgage, such notices to be sent simultaneously to Lessor and Lessee;
12
(f) That the Leasehold Mortgage is a leasehold mortgage only and that such
mortgage has obtained no interest whatsoever in the underlying fee of the
Land as a result of the execution of the Leasehold Mortgage by Lessee;
(g) Only the Leasehold Mortgagee may acquire any right, title or interest in or to
this Lease, by acceptance of a deed or other instrument of conveyance
thereof, by purchase at a foreclosure sale or by transfer in lieu of foreclosure,
and will conclusively be deemed to have accepted such right, title or interest
subject to all of the terms, covenants and conditions of this Lease; it being
the specific intent of Lessee and the Leasehold Mortgagee that the
Leasehold Mortgage encumber only Lessee's leasehold interest created by
this Lease in the Property, and that except as specifically set forth in this
Lease, the rights of Lessor shall not be affected by the terms of the
Leasehold Mortgage; and
(h) That the Leasehold Mortgage and all rights thereunder shall be subject and
subordinate to Lessor's interest in the Property. The Leasehold Mortgagee
shall upon demand, at any time, execute, acknowledge and deliver to
Lessor, without expense to Lessor, any instrument that may be necessary or
proper to confirm the subordination of the Leasehold Mortgage to the
Lessor's interests in the Property.
ARTICLE IX - LESSOR'S RIGHTS AND REMEDIES
9.1 LANDLORD-TENANT RELATIONSHIP.
All of the rights and remedies of the respective parties shall be governed by the
provisions of this instrument and by the laws of the State of Florida as they exist
from time to time, as such law relates to the respective rights and duties of landlord
and tenant.
9.2 ALL RIGHTS AND REMEDIES.
During the continuance of this Lease, the Lessor shall have all rights and remedies
13
which this Lease and the law of the State of Florida assures to it.
9.3 RIGHTS AND REMEDIES CUMULATIVE.
All rights and remedies accruing to the Lessor shall be cumulative; that is to say, the
Lessor may pursue such rights as the law and this Lease afford to it in whatever
order the Lessor desire and the law permits, without being compelled to resort to
anyone remedy in advance of any other.
ARTICLE X - INDEMNIFICATION OF LESSOR AGAINST LIABILITY
10.1 INDEMNIFICATION CLAUSE.
Lessee covenants and agrees with Lessor that during the entire term of the Lease
the Lessee will indemnify and save harmless the Lessor against any and all claims,
debts, demands or obligations that may be made against or upon the Lessor, arising
by reason of or in connection with this Lease, or any alleged act or omission of the
Lessee or any person claiming by, through or under the Lessee; and if it becomes
necessary for the Lessor to defend any action seeking to impose any such liability,
the Lessee will pay the Lessor all costs of court and reasonable attorneysO fees
incurred by the Lessor in effecting such defense, including appeals, as and when
such fees and expenses become due and payable, in addition to any other sums
which the Lessor may be called upon to pay by reason of the entry of a judgment
against the Lessor or any of them in the litigation in which such claim is asserted.
10.2 COMMERCIAL GENERAL LIABILITY CLAUSE.
From the time of the commencement of this Lease, the Lessee will cause to be
written and pay all premiums on a policy or policies of insurance in the form
generally known as Commercial General Liability policies, insuring the Lessee, and
naming the Lessor as an additional insured, against any and all claims and
demands made by any person or persons whomsoever for injuries received in
connection with the operation and maintenance of the Demised Premises, including
14
improvements and buildings located thereon, orfor any other reason whatsoever, or
for any other risk insured against by such policies, each class of which policies shall
have been written with limits of not less than One Million ($1,000,000.00) Dollars for
damages incurred or claimed by anyone (1) person, and for not less than Three
Million ($3,000,000.00) Dollars for damages incurred or claimed by more than one
person. All such policies shall name the Lessee and the Lessor as their respective
interests may appear, as the persons insured by such policies. The original or a
true copy of each of such policies shall be delivered by the Lessee to the Lessor
promptly upon the writing of such policies, together with adequate evidence of the
fact that the premiums are paid, and such insurance shall be kept continuously in
full force and effect by the Lessee at Lessee's sole cost and expense. The
insurance shall be placed with an insurance company having a Best Company
rating of "A" or better, if such insurance is available from such company(ies). If such
insurance is not available on the private market, Lessee may obtain insurance
through alternate providers, after approval in writing from Lessor. Lessor may review
insurance coverages and require increased coverage consistent with the value of
improvements to the Property as improvements to the Property are made.
10.3 INDEMNIFICATION CLAUSE FOR LEASE CHALLENGES.
Lessee shall also protect, defend, indemnify and hold Lessor harmless against any
loss or damage, including attorneys fees and costs, arising out of or resulting from
any claim, action or law suit brought by a third party to (i) challenge the validity or
enforceability of this Lease, or any City action relating to this Lease, including the
procedures established for the approval thereof; (ii) challenge the Lessor's title to
the Demised Premises; or (iii) enjoin this Lease. If any litigation is instituted against
the Lessor andlor the Lessee as a result of the approval of this Lease, then the
Lessee shall defend the Lessor and save the Lessor harmless from any and all
reasonable attorneys' fees and court costs that may be incurred, both at the trial
and appellate level. Counsel in such actions shall be selected by Lessee, subject to
approval of Lessor, which approval shall not be unreasonably withheld or delayed.
15
10.4 COMPLIANCE WITH ALL LAWS. ETC.
Lessee, at Lessee's expense, shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and municipal
authorities pertaining to Lessee's use of the Premises and with the recorded
covenants, conditions and restrictions, regardless of when they become effective,
including, without limitation, all applicable federal, state and local laws, regulations
or ordinances pertaining to air and water quality, Hazardous Materials (as
hereinafter defined), waste disposal, air emissions and other environmental matters,
all zoning and other land use matters, and utility availability, and with any direction
of any public officer or officers, pursuant to law, which shall impose any duty upon
Lessor or Lessee with respect to the use or occupation of the Premises.
10.4.1
RULES ON HAZARDOUS MATERIALS.
Lessee shall (i) not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises by Lessee, its
agents, employees, contractors or invitees without the prior written
notice to Lessor, demonstrating to Lessor that such Hazardous
Material is necessary or useful to Lessee's use of the Premises and
will be used, kept and stored in a manner that complies with all laws
regulating any such Hazardous Material so brought upon or used or
kept in or about the Premises. If Lessee breaches the obligations
stated in the preceding sentence, or if the presence of Hazardous
Material on the Premises results in contamination of the Premises, or
if contamination of the Premises by Hazardous Material otherwise
occurs, then Lessee shall indemnify, defend and hold Lessor
harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses (including, without limitation,
diminution in value of the Premises, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of
16
10.4.2
space, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise as a result of such
contamination. This indemnification of Lessor by Lessee includes,
without limitation, costs incurred in connection with any investigation
of site conditions or any cleanup, remedial, removal or restoration
work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present in the soil
or ground water on or under the Premises. Without limiting the
foregoing, if the presence of any Hazardous Material on the Premises
results in any contamination of the Premises, Lessee shall promptly
take all reasonable actions at its sole expense as are necessary to
return the Premises to the condition existing prior to the introduction
of any such Hazardous Material to the Premises; provided that
Lessor's approval of such actions shall first be obtained, which
approval shall not be unreasonably withheld. The foregoing indemnity
shall survive the expiration or earlier termination of this Lease.
HAZARDOUS MATERIALS DEFINED.
"Hazardous materials" mean (a) pesticides and insecticides; (b)
petroleum and its constituents; (c) any substance which is or may
hereafter be defined as or included in the definition of "hazardous
substances," "hazardous materials," "hazardous wastes," "pollutants
or contaminants," "solid wastes" or words of similar import under the
Comprehensive Environmental Response, Compensation and Liability
Act, as amended, 42 U.S.C. 9061, et seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C.. 1801 et seq.; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C.
6901 et seq.; the Federal Water Pollution Control Act, as amended,
33 U.S.C..1251 et seq., Chapters 376 and 403, Florida Statutes;
Chapter 24 of the Code of Metropolitan Dade County; (d) any other
17
10.4.3
10.4.4
10.4.5
substance, the exposure to or release of which is regulated by any
governmental entity having jurisdiction over the Premises or the
operations thereon; and (e) any substance that does or may pose a
hazard to the health or safety of the persons employed at or invitees
on the Premises.
FURTHER DISCLOSURE OF HAZARDOUS MATERIALS.
At the commencement of this Lease, and on January 1 of each year
thereafter (each such date being hereafter called "Disclosure Date"),
including January 1 of the year after the termination of this Lease,
Lessee shall disclose to Lessor the names and amounts of all
Hazardous Materials, or any combination thereof, which were stored,
used or disposed of on the Premises, or which Lessee intends to
store, use or dispose of on the Premises. Notice of Lessee's use of
Hazardous Materials on the Property shall not be a waiver of any of
Lessor's claims, defenses or rights related to Lessee's use of such
materials.
LESSOR'S RIGHT TO INSPECT.
Lessor and its agents shall have the right, but not the duty, to inspect
the Premises at any reasonable time to determine whether Lessee is
complying with the terms of this Lease. If Lessee is not in compliance
with this Lease, Lessor shall have the right to immediately enter upon
the Premises to remedy any contamination caused by Lessee's failure
to comply notwithstanding any other provision of this Lease. Lessor
shall use its best efforts to minimize interference with Lessee's
business but shall not be liable for any interference caused thereby.
DEFAULT.
Any default under this Paragraph shall be a material default enabling
18
Lessor to exercise any of the remedies set forth in this Lease.
10.4.6
LESSEE RECEIVES PROPERTY "AS IS".
Lessee acknowledges it has occupied Parcel "A" of the Property
pursuant to the prior Agreements, since 1988, and has occupied
Parcel "B", pursuant to its installation and maintenance of a temporary
boat storage structure, since 1988, and is receiving the Property in
"as is" condition, and Lessor is not responsible for the existing
condition of the Property.
ARTICLE XI - FIRE AND WINDSTORM. ETC. INSURANCE PROVISIONS
11.1 PROPERTY ALL RISK COVERAGE POLICIES.
Lessee covenants and agrees with Lessor that Lessee will insure and keep insured
any and all buildings and improvements now upon and hereafter placed upon the
Demised Premises and any and all personal property which Lessee brings, or has
brought, or which under the terms of this Lease, the Lessee may be obligated to
bring upon the Demised Premises, all of which insurance shall be written through
insurance companies authorized to do business in the State of Florida, for Property
All Risk Coverage, including protection against all loss or damage by fire, windstorm
and flood, and what is generally termed in the insurance field as "extended
coverage," which insurance will be maintained in an amount that will be sufficient to
prevent any party in interest from being or becoming a co-insurer of any part of the
risk, and all of such policies of insurance shall bear a "Loss payable clause" in
which there shall be included the names of the Lessor as parties insured thereby, as
their interests may appear.
11.2 BUILDERS' RISK INSURANCE POLICIES.
From the inception of any construction which Lessee may effect on the Demised
Premises, the Lessee will cause Builders' Risk insurance policies to be written and
19
maintained throughout such construction in compliance with the provisions of the
foregoing paragraph.
11.3 USE OF INSURANCE PROCEEDS.
In the event of the destruction of or damage to the buildings, or of any of the
improvements, by fire, windstorm or other casualty for which insurance shall be
payable, and as often as such insurance money shall have been paid to the Lessor
and the Lessee, sums so paid shall be deposited in a joint account of the Lessor
and Lessee in a bank in Miami-Dade County, Florida designated by the Lessor, and
shall be available to the Lessee for the reconstruction or repair, as the case may be,
of any building or buildings, damaged or destroyed by fire, windstorm or other
casualty for which insurance money shall be payable, and shall be paid out by the
Lessor and the Lessee from the joint account from time to time on the estimate of
any architect licensed in the State of Florida having supervision of such
reconstruction and/or repair, certifying that the amount of such estimate is being
applied to the payment of the reconstruction and/or repair and at a reasonable cost
therefor; provided, however, that it first be made to appear to the satisfaction of the
Lessor that the amount of money necessary to provide for the complete
reconstruction and/or repair of any, building or buildings destroyed or damaged as
aforesaid, according to the plans adopted therefor and approved by the Lessor, has
been provided by the Lessee for such purpose and its application for such purpose
assured. The proceeds of the Personal Property Insurance covering personal
property belonging to the Lessee shall likewise be deposited in a joint bank account
to the credit of the Lessor and the Lessee, and shall be paid out for the replacement
or repair, as the case may require, of destroyed or damaged personal property. The
Lessee covenants and agrees that in the event of the destruction of or damage to
the buildings and/or improvements or any part thereof, and as often as any buildings
or improvements on the Premises shall be destroyed or damaged by fire,
windstorm, or other casualty, the Lessee shall rebuild or repair (as the case may
require), the same in such manner that the building or improvement so rebuilt ancl/or
20
repaired shall be of the same or greater value as the building and the improvements
upon the Demised Premises were immediately prior to such damage or destruction,
and shall have the same rebuilt and/or repaired and ready for occupancy and have
received the appropriate certificate of occupancy and/or completion from the City's
Building Department within two years from the time when the damage or destruction
occurred, and shall within that period replace and repair as the case may require,
personal property destroyed or damaged; this obligation of the Lessee to rebuild
and repair the buildings and improvements, and to replace and repair the personal
property, shall exist and be enforceable irrespective of the availability of any
insurance funds for any of these purposes. With Lessor's prior written consent, the
two-year period for reconstruction or repair shall be enlarged and extended by
delays caused without fault or neglect on the part of the Lessee, by act of God,
strikes, lockouts or other conditions beyond the Lessee's control.
11.4 FINANCING OF PREMIUMS.
Nothing herein contained shall be construed as prohibiting the Lessee from
financing the premiums on such policies, or from such payments having a
deductible amount not exceeding five percent (5%) of the insurable value of the
improvements.
11.5 DEFAULT OF CASUAL TV.
If at any time any such insurance money comes into the possession of the Lessor
and the Lessee after destruction or damage by fire or windstorm or other casualty
and the Lessee is in default in the payment of rent, taxes, assessments, liens or
other charges which by the terms of this Lease the Lessee is obligated to payor pay
for, or if such default should occur during the time such insurance money or any
part thereof is in the joint bank account, as aforesaid, then the Lessor shall be paid
so much of the insurance money as may be necessary fully to payor discharge any
such sum of money in the payment of which the Lessee is in default, as aforesaid,
and this shall be done whenever and as often as any such default shall occur on the
21
part of the Lessee. Nothing contained herein, however, shall be construed as
permitting the Lessee to default in the payment of rent or other charges herein
stipulated to be paid or in the performance of the other covenants in this Lease.
The Lessor may, at its option, in case of default in the payment of such rent or other
charges or default in the performance of any other covenant in this Lease, proceed
against the Lessee for the collection of such rental and charges, and recover and
take possession of the Premises herein described, and without prejudice to their
rights to the benefit of such insurance money as payment of such rental and other
charges.
11.6 EXCESS INSURANCE PROCEEDS.
It is agreed by and between the Lessor and Lessee that any excess of money
received from insurance or other sources remaining in the joint bank account after
the completion of the reconstruction, replacement or repair of such building or
buildings and personal property, and if there is no default on the part of the Lessee
in the performance of any of the covenants of this Lease, shall be paid to Lessee;
but in the event the Lessee fails for any reason to commence the reconstruction or
repair of such building or buildings within six (6) months after the date of the
damage or destruction occasioned by fire, windstorm or other cause for which
insurance money shall be payable, or the Lessee for any reason fails within that six
(6) month period to provide in the manner required by Paragraph 11.3 of this Article
XI, a sufficient sum of money to prosecute the reconstruction and repair work with
such dispatch as may be necessary to complete the same within eighteen (18)
months after the occurrence of such damage or destruction occasioned as
aforesaid, except in the case of Force Majeure, as provided in Article XXVI, or
Unavoidable Delays under paragraph 15.11.1, then and in every such event, the
Lessee shall be deemed to have refused to carry out its obligation to reconstruct,
replace and repair, and the amount so collected or the balance thereof remaining in
the joint account, as the case may be, shall be paid to the Lessor as liquidated and
agreed upon damages resulting from the failure of the Lessee to reconstruct,
22
replace and repair, and the Lessor shall have the option, notwithstanding its
retention of such sum, to terminate this Lease.
ARTICLE XII- LESSEE'S DUTY TO PAY INSURANCE PREMIUMS
12.1 OBLIGATION AND PROOF OF PAYMENT.
Lessee covenants and agrees with Lessor that Lessee will pay the premiums for all
of the insurance policies which Lessee is obligated to carry under the terms of this
Lease, and will deliver to the Lessor evidence that all such premiums have been
paid on or before the effective date of each such policy or proper evidence of
extended credit and/or evidence of financing the payment of such premiums, and
Lessee will cause renewals of all expiring policies to be written, and the policies or
copies thereof, as the Lease may require, to be delivered to the Lessor at least ten
(10) days before the expiration date of such expiring policies. The parties note that
ill 10.2, Lessor may review insurance coverages and require increased coverage
consistent with the value of improvements to the Property as improvements to the
Property are made.
12.2 LESSOR'S OPTION TO PAY.
Nothing herein contained shall ever be construed as rendering the Lessor
personally liable for the payment of any such insurance premiums, but if at any time
during the continuance of this Lease the Lessee shall fail, refuse or neglect to
procure any of the policies of insurance required in and by this instrument to be
procured by the Lessee, or to keep and maintain the same in full force and effect, or
to pay the premium therefore promptly when due, the Lessor may, at its option,
procure or renew such insurance, and thereupon the amount or amounts of money
paid as the premium or premiums thereon plus interest at the rate of ten per cent
(10%) per annum from date of payment thereof shall be collectible as though it were
rent then matured hereunder, and shall be due and payable forthwith, or in lieu
thereof and notwithstanding the procurement and renewal of such policies by the
23
Lessor, this Indenture and the terms created hereby may, at the option of the
Lessor, be terminated and declared at an end and all of the right, estate and interest
of the Lessee in such event hereunder shall immediately cease and become null
and void.
ARTICLE XIII - ASSIGNMENT
13.1 RIGHT AND CONDITIONS OF ASSIGNMENTS.
This Lease is not freely assignable, and no assignment, transfer, sublease,
subconcession or license agreement shall be valid unless there is a prior written
consent by the Lessor, which consent shall be within the sole discretion of the
Lessor, and such instrument of assignment (the "Assignment") that has been
consented to is in writing, which Assignment must contain an assumption
agreement, duly executed by the Assignee of this Lease and in recordable form,
wherein and whereby the Assignee accepts the assignment and assumes and
agrees to timely and fully perform and comply with all of the Lessee's covenants
and agreements contained in this Lease, and unless and until written notice (the
"Notice") shall have been given to the Lessor by the Assignor and Assignee, (the
Notice to be given in the manner hereinafter prescribed as the manner and method
for giving Notice), enclosing a duplicate-original or photocopy of the original
instrument of Assignment and the address at which Notice may thenceforth be
given to the Assignee. Approval of any assignment or transfer to an entity other
than a not-for-profit corporation shall be conditioned upon the renegotiation of the
rent to be paid under this Lease to reflect a fair market value of the demised
premises. Subleases, subconcessions, or license agreements consistent with the
uses set forth in paragraph 4.1 are subject to the approval of Lessor, which approval
shall not be unreasonably withheld.
13.2 NOTICE AND APPROVAL.
The Lessor covenants and agrees that it will within sixty (60) days after service of
24
Notice upon it of a proposed assignment of this Lease, giving the name and post
office address of the proposed Assignee, advise the Lessee in writing as to whether
the Lessor will consent to the assignment of the Lease and further advise the
Lessee in writing of the existence or nonexistence of any default on the part of the
Lessee under the terms of this Lease, and if there is any default or defaults, a
statement setting forth such default or defaults. Lessor's failure to give such advice
in writing within the time required shall not constitute either notice of the absence of
any default, or consent to the proposed assignment. Only Lessor's response in
writing of the existence or not of a default and permission or not of an assignment
shall be effective with respect to each such item.
13.3 TRANSFERS OR ASSIGNMENT BY LEASEHOLD MORTGAGEE.
Any transfer or assignment of this Lease, as a result of the Leasehold Mortgagee
having acquired title to the leasehold estate of Lessee by foreclosure of the
Leasehold Mortgage, or transfer in lieu of foreclosure, shall require prior written
consent of the Lessor.
ARTICLE XIV - CONDEMNATION CLAUSE
14.1 DIVISION OF CONDEMNATION PROCEEDS.
It is further understood and agreed that if at any time during the continuance of this
Lease the Demised Premises or the improvements and buildings located thereon or
any portion thereof be taken, appropriated or condemned by reason of eminent
domain, there shall be such division of the proceeds and awards in such
condemnation proceedings, and such abatement of rent and other adjustments
made, as shall be just and equitable under the circumstances. If the Lessor and the
Lessee are unable to agree upon what division, annual abatement of rent or other
adjustments are just and equitable within thirty (30) days after such award shall
have been made, then the matters in dispute shall by appropriate proceedings, be
submitted to a court having jurisdiction of the subject matter of such controversy in
25
Miami-Dade County, Florida, for its decision and the determination of the matters in
dispute. If the legal title to the entire Demised Premises is wholly taken by
condemnation, the Lease shall automatically and without notice be canceled. No
allocation of condemnation proceeds between Lessor and Lessee shall be based
upon Lessee's interest in the land; notwithstanding, the Lessee shall be
compensated for Lessee's interest in the improvements under this Lease in
accordance with the condemnation award.
14.2 LESSEE'S IMPROVEMENTS.
Although the title to the buildings and improvements placed by the Lessee upon the
Demised Premises will pass to the Lessor upon the termination of this Lease,
nevertheless, for purposes of condemnation only, the fact that the Lessee placed
such buildings and improvements on the Demised Premises, at Lessee's cost and
expense, shall be taken into account in determining the portion of the condemnation
award to which the Lessee is entitled. In general, it is the intent of this Article that
upon condemnation, the parties shall share in their awards to the extent that their
interests respectively are depreciated, damaged or destroyed by the exercise of the
right of eminent domain.
14.3 TAKING RENDERING PREMISES UNSUITABLE FOR PERMITTED USES.
If a partial taking or a total taking renders the Premises unsuited for the permitted
uses as provided for herein, Lessee, may at its sole option and expense, remove all
of its personal property from the portion of the property taken, however, Lessee
shall continue to be liable under this Lease and continue its rights and obligations as
to the remainder of the Property not so taken, unless released in writing by Lessor.
ARTICLE XV - ADDITIONAL IMPROVEMENTS
15.1 PROPOSED IMPROVEMENTS.
This Lease is made with the understanding and agreement that Lessee will
26
construct additional improvements (the "Proposed Improvements"), to the buildings
and improvements presently located on the Demised Premises, on Parcel "A" and
Parcel "B", respectively, valued collectively at no less than One Million ($1.000,000)
Dollars" such amount to include a minimum of Seven Hundred Thousand
($700,000) Dollars, to be provided by Lessee, and Three Hundred Thousand
($300,000) Dollars, which is the amount appropriated by Lessor, via Resolution No.
2000-24016, dated July 26, 2000, to be used toward the proposed improvements.
The Proposed Improvements shall be placed on Parcel "A" and Parcel "B",
respectively, comprising the Property, and shall not be inconsistent with the plans
presented by Lessee to Lessor, and as approved by Lessor in the manner provided
below. Any and all improvements, shall be at the sole cost and expense of the
Lessee.
15.2 LESSEE'S RESPONSIBILITY FOR DESIGN AND APPROVALS.
Lessee is solely responsible for the design of any improvements to the Property,
and obtaining all approvals from City and other applicable regulatory agencies
therefor, including approvals by City, as Lessor, and approvals by City in its
regulatory capacity under the City Code and other applicable laws. Pursuant to
Miami Beach City Cod~ 142-423, Lessee has submitted its proposed uses and the
plans to the Planning Board for its review. The Planning Board recommended
approval of the uses and supports Lessee's plans, subject to the conditions
approved by the Planning Board, at its regular meeting on May 25, 2002 (Planning
Board File No. 1568).
15.3 PRELIMINARY PLANS AND SPECIFICATIONS.
Lessee has submitted to Lessor preliminary plans and specifications for the
Proposed Improvements, which shall include, but not be limited to, a detailed site
plan, a landscape plan, elevation drawings of each facade, a detailed floor plan for
each of the floors of the Proposed Improvements, a calculation of the floor areas for
each floor, and a calculation of the total floor area dedicated to each use within the
27
Proposed Improvements (the "Preliminary Plans and Specifications"). lessor's
"Preliminary Plans and Specifications" were considered by the City's Design Review
Board (ORB) at its regular meeting on July 11, 2001 (ORB File No. 14437), and
received Final Order and approval. Said Final Order is attached as Exhibit "0",
hereto. (On June 18, 2002, the Design Review Board granted lessee an extension
within which to pull its building permit.)
15.4 PUBLIC FACILITIES AND CONCURRENCY.
lessee shall be solely responsible for obtaining and maintaining current all land use
permits (including the aforestated respective approvals granted by the City's
Planning Board and Design Review Board), including, but not limited to, all permits
and approvals required pursuant to Chapter 122, Miami Beach City Code, with
respect to concurrency requirements for roads, sanitary sewer, solid waste,
drainage, potable water, parks and recreation (the "Concurrency Requirements").
15.5 PLANS AND SPECIFICATIONS.
Following the ORB's approval of the Proposed Improvements, which approval was
given on July 11, 2001 (and as extended on June 18, 2002), and all other City
boards' approvals, as applicable, lessee shall prepare for review by lessor
construction Plans and Specifications for construction of the Proposed
Improvements, consistent with the Preliminary Plans and Specifications, as
approved by the Planning Board and the ORB, and incorporating the conditions
established by these respective boards. The Plans and Specifications shall be
submitted to the lessor (acting in its proprietary capacity as owner of the Property)
within ninety (90) days from the date on which the ORB approved the Proposed
Improvements. The Plans and Specifications, or modifications thereto, shall be
reviewed by the City Manager or, at his discretion, the City's Building Director, as
the Manager's designee, within twenty (20) business days, except for modifications
thereto, which shall be reviewed within ten (10) business days, solely for
consistency with the Preliminary Plans and Specifications as the same may have
28
been modified by the Planning Board, DRB or other City boards, as applicable. If
Lessor disapproves the Plans and Specifications, then Lessee shall submit a
revised modification to the Plans and Specifications to meet Lessor's objections,
which revised modification shall be submitted and reviewed as provided above.
Lessee shall pursue approval by the City of the Plans and Specifications diligently
and in good faith.
15.6 CONDITIONS PRECEDENT TO LESSEE'S COMMENCEMENT OF
CONSTRUCTION OF THE PROPOSED IMPROVEMENTS.
Lessee shall not commence construction of the Proposed Improvements, or any
portion thereof, unless and until Lessor shall have approved the Plans and
Specifications, as provided in this Lease. Lessee shall obtain a final building permit
for the Proposed Improvements as follows:
(a) For improvements to Parcel liB" (dry dock facility) -- on or before November
1. 2002, but in any event, no later than April 30. 2003.
(b) For improvements to Parcel"A" (second story) -- on or before Mav 31.2003,
but in any event, no later than November 28. 2003.
Failure to do so shall constitute a Default under this Lease. Lessor's remedyforthis
Default, and for all defaults under this Article 15 for failure to follow the time
schedule under this Article related to the Proposed Improvements, shall be limited
to a reversion of the duration of the lease term and/or a description of the Demised
Premises, to those provided in the Amended and Restated Lease Agreement, dated
November 21, 1991. In such event, all other remaining provisions of this Lease
shall remain in full force and effect. Lessee shall not commence construction of the
Proposed Improvements unless and until (a) Lessee shall have obtained and
delivered to Lessor copies of all final Permits and Approvals required to commence
construction and (b) Lessee shall have delivered to Lessor original certificates of the
policies of insurance required to be carried pursuant to this Lease.
29
15.7 LESSOR'S COOPERATION IN OBTAINING APPROVALS.
Lessor (solely in its capacity as the owner of the Property and not in its regulatory
capacity) shall reasonably cooperate with Lessee in obtaining the Permits and
Approvals required to construct the Proposed Improvements, shall sign any
application reasonably made by Lessee that is required in order to obtain such
permits and approvals and shall provide Lessee with any information and/or
documentation not otherwise reasonably available to Lessee (if available to Lessor)
that is necessary to procure such permits and approvals. Any such accommodation
by Lessor shall be without prejudice to, and shall not constitute a waiver of, Lessor's
rights to exercise its discretion in connection with its regulatory functions. Lessee
shall reimburse Lessor, within ten (10) days after Lessor's demand, for any
reasonable out-of-pocket cost or expense payable to Lessor's technical consultants
(other than Lessor's employees), such as architects and engineers, so incurred by
Lessor in connection with Lessor's assistance in obtaining the permits and
approvals required by the Proposed Improvements.
15.8 COMMENCEMENT OF CONSTRUCTION OF PROPOSED IMPROVEMENTS.
Lessee shall at its sole cost and expense:
(1) Commence construction of the Proposed Improvement as follows:
(a) Parcel"B" - Auqust 31,2002, but in any event no later than Februarv
28. 2003.
(b) Parcel "A" - Auqust 31. 2003, but in any event no later than Februarv
27. 2004.
(collectively, the "Construction Commencement Dates"); and
(2) Thereafter continue to prosecute construction of the Proposed Improvements
with diligence and continuity to completion. "Commence Construction" or
"Commencement of Construction" means the commencement of major work
(such as pilings or foundations) for construction of the Proposed
Improvements. Promptly after Commencement of Construction, Lessee shall
notify Lessor in writing of the date of such commencement. Any and all
30
15.8.1
preliminary site work (including, without limitation, any environmental
remediation and ancillary demolition) shall not be deemed to be
Commencement of Construction. If, after Lessee has commenced
construction, Lessee fails to diligently prosecute construction of the
Proposed Improvements (subject to unavoidable delays), and such failure
continues (subject to unavoidable delays) for thirty (30) consecutive days
after Lessee's receipt of notice of such failure, Lessor shall, in addition to all
of its other remedies under this Lease, have the right to seek such equitable
relief (either mandatory or injunctive in nature) as may be necessary to cause
diligent and continuous prosecution of construction of the Proposed
Improvements (subject to unavoidable delays) by Lessee, it being
understood that construction of the Proposed Improvements is a material
inducement to Lessor to enter into the Lease and monetary damages shall
be inadequate to compensate Lessor for harm resulting from such failure.
Notwithstanding anything to the contrary contained herein, if Lessee fails to
substantially complete construction of the Proposed Improvements by the
date provided for in this Lease, then the same shall constitute a default
under this Lease.
UNAVOIDABLE DELAYS.
"Unavoidable delays" shall mean delays due to strikes, slowdowns,
lockouts, acts of God, inability to obtain labor or materials, war,
enemy action, civil commotion, fire, casualty, eminent domain,
catastrophic weather conditions, a court order that actually causes a
delay (unless resulting from disputes between or among the party
alleging an unavoidable delay, present or former employees, officers,
members, partners or shareholders of such alleging party or of
affiliates of such alleging party), in the application of any requirement.
The party alleging unavoidable delay shall notify the other within
twenty days of such occurrence, however, failure to do so shall not
31
waive any rights caused by such delay. The times for performance
related to the Proposed Improvements set forth in this Lease shall be
extended to the extent performance is delayed by unavoidable delays.
15.9 COMPLETION OF CONSTRUCTION OF PROPOSED IMPROVEMENTS.
Substantial Completion of the Proposed Improvements shall be accomplished in a
diligent manner, and in any event no later than:
(a) For Parcel "B" - March 31. 2003, but in any event, no later than September
30. 2003.
(b) For Parcel "A" - December31. 2004, but in any event, no later than June30,
2005.
"Substantial Completion" as used herein shall require the issuance of a temporary
or final certificate of occupancy by the City's Building Department. Such date may
be extended for good cause shown upon request in writing to Lessor's City
Manager, which extension by the City Manager shall not be unreasonably withheld.
Final completion of the construction of the Proposed Improvements, shall be
accomplished in a diligent manner, in each case in a good and workmanlike
manner, in substantial accordance with the Plans and Specifications (with no
material deviations except as expressly permitted herein), at Lessee's sole cost and
expense. Upon Substantial Completion of construction of the Proposed
Improvements, Lessee shall furnish Lessor with the following:
(a) A certification of the Architect (certified to Lessor on the standard AlA
certification form) that it has examined the Plans and Specifications and that,
in its professional judgment, after diligent inquiry, construction of the
Proposed Improvements have been Substantially Completed in accordance
with the Plans and Specifications applicable thereto and, as constructed, the
Improvements comply with all applicable codes and laws;
(b) A copy or copies of the temporary and final certificates of occupancy for the
Proposed Improvements (or portion thereof, as applicable) issued by the City
of Miami Beach Building Department;
32
(c) Lien waivers in form and substance reasonably satisfactory to Lessor from
each contractor, subcontractor, supplier or materialman retained by or on
behalf of Lessee in connection with the construction of the Proposed
Il'J1provements, evidencing that such persons have been paid in full for all
work performed or materials supplied in connection with the construction of
the Proposed Improvements;
(d) A complete set of "as built" plans and a survey showing the Improvement(s)
(excluding personalty) for which the construction of the Proposed
Improvements has been completed. Lessor shall have an unrestricted
license to use such "as built" plans and survey for any purpose related to the
Property without paying any additional cost or compensation therefor, subject
to copyright and similar rights of the Architect to prohibit use of designs for
purposes unrelated to the Property, as such rights exist in law or may appear
in the Architect's contract, and subject to applicable public records laws. The
foregoing requirement with respect to "as built" plans shall be satisfied by
Lessee fumishing to Lessor, at Lessee's expense, a complete set of Plans
and Specifications, with all addenda thereto and change orders in respect
thereof, marked to show all changes, additions, deletions and selections
made during the course of the construction of the Proposed Improvements;
and
(e) A Contractor's Final Affidavit in form and substance reasonably satisfactory
to Lessor executed by the General Contractor (i) evidencing that all
contractors, subcontractors, suppliers and materialmen retained by or on
behalf of Lessee in connection with the Construction of the Proposed
Improvements have been paid in full for all work performed or materials
supplied in connection with the Construction of the Proposed Improvements
and (ii) otherwise complying with all of the requirements under the Florida
Construction Lien Law, Chapter 713, Florida Statutes, as amended.
33
15.10 LICENSED ARCHITECTS AND ENGINEERS.
Construction of the Proposed Improvements shall be carried out pursuant to Plans
and Specifications prepared by licensed architects and engineers, with controlled
inspections conducted by a licensed architect or professional engineer as required
by applicable requirements.
15.11 CONSTRUCTION COST CLARIFICATION.
Upon Substantial Completion of the project, Lessee shall certify to Lessor that it
has, in fact, expended not less than said amounts for total construction costs.
15.12 COMPLETION BOND.
Lessee shall deliver to the Lessor a Completion Bond with corporate surety
authorized to do business as such in Miami-Dade County, Florida, and satisfactory
to the Lessor as to the form and surety, guaranteeing the completion of the
Proposed Improvements in accordance with the approved Plans and Specifications,
and have received the appropriate certificate of occupancy and/or completion from
the City's Building Department, and indemnifying and saving harmless the Lessor
and the title of the Lessor against the claims of all parties who furnish work, labor,
services and/or materials to the premises.
15.13 DILIGENCE IN CONSTRUCTION.
Any building operation, once commenced, must be carried through continuously to
completion, but any interruption or delay in the doing and completion of the work
which shall have been caused by act of God, or the public enemy, or strike, or
natural casualty, or other circumstances not occasioned by or attributable to the
fault, default or neglect of the Lessee shall not be deemed to cause the Lessee to
be in default under this paragraph, so long as the Lessee exercises due diligence to
cause the work of construction to be carried through to completion as promptly and
expeditiously after the commencement thereof as possible.
34
ARTICLE XVI - DEED RESTRICTIONS CONCERNING THE USE OF THE PROPERTY
16.1 RESTRICTIONS.
The Demised Premises shall hereby contain the following restrictions, covenants
and limitations:
(a) That the Lessee shall at all times operate, maintain and utilize the
Demised Premises as a rowing facility, and all related uses thereto;
(b) That the Lessee shall at all times remain a not-for-profit corporation;
(c) The Lessee shall affirmatively make the Property and the Lessee's
programs and activities open to the persons of all races, colors,
creeds or national origins.
(d) That the Property shall at no time during the term of the Lease be
assigned, sublet, or in any way shall the dominion and control over
the Property be in any person or entity other than the Lessee, without
the prior written consent of the Lessor, and if such consent is given,
Fair Market Value shall be paid by Lessee or its successor to Lessor
for such space assigned or sublet, unless this provision is waived by
action of the City Commission;
(e) That all fire and extended coverage and flood insurance,
maintenance, and other costs for the improvements and the general
upkeep of the Property, and all replacements necessary in connection
therewith, shall be the sole cost and expense of the Lessee;
(f) That the Lessee shall provide personnel on the Premises during
operating hours during the entire term of the Lease.
(g) That the Lessee shall be obligated to provide public liability insurance
and property damage insurance at its cost and expense to the
Demised Premises during the terms of this Lease.
(h) Exterior signs, if any, will be of a design and form approved by the
Lessor, and in accordance with the Miami Beach City Code and other
applicable laws and codes. Lessee shall assume the cost of any such
35
signs. Lessee shall remove all signs upon the termination of this
Lease and any damage or unsightly condition caused to the Property
because of or due to such signs shall be corrected or repaired by
Lessee to the satisfaction of Lessor.
16.2 VIOLATION OF RESTRICTION IS EVENT OF DEFAULT.
The violation by the Lessee of any of the covenants, restrictions and undertakings
as set forth in Paragraph 16.1 above, shall be considered an Event of Default and
the Lessor shall be entitled to all of the remedies as set forth in Article XVII hereof.
ARTICLE XVII - DEFAULT CLAUSE
17.1 EVENT OF DEFAULT.
It is further covenanted and agreed by and between the parties hereto that in case
at any time default shall be made by the Lessee with regard to any of its obligations
as provided in this Lease, except as specifically elsewhere provided, each of which
shall be an "Event of Default," then, in any of such events, following notice in writing
by certified mail, return receipt requested, or by hand delivery, or such other
conveyance then permitted by law, and an opportunity to cure within the thirty-day
period following delivery of such notice, and Lessee after such notice and
opportunity to cure has failed to cure, as provided for in Paragraph 17.3, it shall and
may be the Lessor's right to declare such demised term ended and to re-enter upon
the Premises and the building or buildings and improvements situate thereon or any
part thereof, either with or without process of law, the Lessee hereby waiving any
demand for possession of the Premises and any and all buildings and
improvements then situate thereon; and the Lessee covenants and agrees that
upon the termination of the demised term, the Lessee will surrender and deliver up
the Premises peaceably to the Lessor, its agents and attorneys, immediately upon
the termination of the demised term; and if the Lessee, its agents, attomeys or other
persons or entities claiming by or through Lessee, shall hold the Premises or any
36
part thereof one (1) day after the same should be surrendered according to the
terms of this Lease, they shall be deemed guilty of forcible detainer of the Premises
under the Statute and shall be subject to eviction or removal, forcibly or otherwise,
with or without process of law.
17.2 STATUTORY LANDLORD - TENANT PROCEEDINGS APPLY.
The parties understand and agree that the relationship between them is that of
landlord and tenant, and the Lessee specifically acknowledges that the statutory
proceedings in the State of Florida relating to the recovery of possession of the
Premises accrues to the landlord hereunder.
17.3 THIRTY DAY CURE PERIOD.
Nothing herein contained shall be construed as authorizing the Lessor to declare
this Lease in default until thirty (30) days after the Lessor shall have given the
Lessee written notice of a violation of this Lease, and Lessee has failed to cure
such violation within such time period. If the default complained of is of such a
nature that it cannot be cured within thirty (30) days, and if the Lessee has
commenced taking all reasonable steps to cure such default and is in the process of
eliminating the facts which are the basis for the declaration of a default, then the
Lessee shall not be deemed to be in default and the Lessor shall not be entitled to
cancel or otherwise enforce the termination of this Lease. Nothing herein contained
shall be construed as precluding the Lessor from having such remedy as may be
and become necessary in order to preserve the rights and the interests of the
Lessor in the Premises and in this Lease even before the expiration of the grace or
notice periods provided for in this paragraph if, under particular circumstances then
existing, the allowance of such grace orthe giving of such notice would prejudice or
endanger the rights and estate of the Lessor in this Lease and in the Demised
Premises, or the public health, safety and welfare.
37
17.4 LESSOR'S OTHER REMEDIES.
In addition to the rights set forth elsewhere in this Lease, Lessor shall have the right
to pursue any or all of the following: (a) the right to injunction or other similar relief
available to it under Florida law against Lessee; and/or (b) the right to maintain any
and all actions at law or suits in equity or other proper proceedings to obtain
damages resulting from Lessee's default.
17.5 LIQUIDATED DAMAGES.
It is further covenanted and agreed by and between the parties hereto, in the event
of the termination of this Lease at any time before the expiration of the term hereby
created, for the breach by the Lessee of any of the covenants herein contained, that
in such case all of the right, estate and interest of the Lessee in and under this
indenture and in the Demised Premises hereinabove described, and all
improvements and buildings then situate on the Demised Premises, together with all
rents, issues and profits of the Premises and the improvements thereon, whether
then accrued or to accrue, and all insurance policies and all insurance monies paid
or payable thereunder, and all of them, shall without any compensation made
therefore unto the Lessee, at once pass to and become the property of the Lessor,
not as a penalty or forfeiture, but as liquidated damages to the Lessor because of
such default by the Lessee and the consequent cancellation of the Lease, each of
the parties acknowledging it to be the fact that for breach and consequent
cancellation of a long-term lease of this character, the Lessor will sustain substantial
damage, being damage of such character as to make it most burdensome and
tedious, if not actually impossible, to ascertain with mathematical precision, and
each of the parties therefore having agreed upon this provision for liquidated
damages in the interests of obviating what would otherwise be burdensome and
difficult litigation to maintain orto defend, as the case may be; and this provision for
liquidated damages has been taken into account by both parties in fixing the term of
and the consideration for the making of this Lease.
38
17.6 RECEIVER.
The Lessee pledges with and assigns unto the Lessor all of the rents, issues and
profits which might otherwise accrue to the Lessee for the use, enjoyment and
operation of the Demised Premises, and in connection with such pledging of the
rents, the Lessee covenants and agrees with the Lessor that if the Lessor, upon the
default of the Lessee, elects to file a suit to enforce the Lease and protect the
Lessor's rights thereunder, then the Lessor may, as ancillary to such suit, apply to
any court having jurisdiction thereof for the appointment of a Receiver of all and
singular the Demised Premises, and the improvements and buildings located
thereon; and thereupon, it is expressly covenanted and agreed that the court shall
forthwith appoint a Receiver with the usual powers and duties of Receivers in like
cases, and such appointment shall be made by such court as a matter of strict right
to the Lessor, and without reference to the adequacy or inadequacy of the value of
the property which is subject to the landlord's lien or to the solvency or insolvency of
the Lessee, and without reference to the commissions of waste.
ARTICLE XVIII - LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR
18.1 LESSEE'S COVENANT REGARDING MAINTENANCE AND REPAIR.
Lessee covenants and agrees with the Lessor that during the Lease term the
Lessee will keep in good state of maintenance and repair any and all buildings and
other improvements constructed upon the Demised Premises; nor will the Lessee
suffer or permit any strip, waste or neglect of any building to be committed; and the
Lessee will repair, replace and renovate the real property, and improvements
located thereon, as often as it may be necessary to keep the building and
improvements on the Property in a good state of repair and condition.
18.2 LESSEE'S CONVENANT REGARDING UTILITIES.
Lessee covenants and agrees with the Lessor that Lessee shall be obligated for all
utilities utilized on the Demised Premises for the entire term of this Lease.
39
ARTICLE XIX - DEMOLITION CLAUSE
19.1 LESSEE'S RIGHT TO DEMOLISH CONDITIONED.
Although it is the Lessee's duty under the terms hereof to keep and maintain any
buildings and improvements on the Demised Premises in good repair, this shall not
be construed as empowering the Lessee to at any time tear down and destroy any
buildings or improvements, on the Demised Premises, or any part thereof, unless
and until the Lessee:
(a) Follows all procedures necessary for development approval as provided for
in this Lease, and causes construction plans and specifications for the new
building or the new construction to be prepared in full accordance with all
applicable laws, building codes, zoning ordinances, statutes and regulations,
and delivers the plans to the Lessor at least ninety (90) days before the work
proposed to be done pursuant thereto is actually commenced; and
(b) Obtains the written approval of the construction plans and specifications by
the Lessor, which shall in writing approve or disapprove such plans and
specifications within twenty (20) days after their delivery to the Lessor, which
approval shall not be unreasonably withheld (It shall not be unreasonable to
disapprove plans not in compliance with the Preliminary or construction
Plans and Specifications, last approved by Lessor); and
(c) Furnishes the Lessor with what is generally known as a Completion Bond
with corporation surety, guaranteeing the doing and completion of the work.
19.2 VALUE OF RECONSTRUCTION.
In any event, the work of reconstruction, repair and replacement must have a value
of not less than the current market value of the buildings or improvements or the
portion thereof then being demolished and replaced and repaired.
19.3 EXPENSE OF DEMOLITION AND RIGHT TO SALVAGE.
The expense of demolition shall be no part of the cost of any subsequent
40
replacement or rebuilding or addition; but by the same token, any salvage resulting
from the demolition shall belong to the Lessee.
ARTICLE XX - ADDITIONAL COVENANTS OF THE LESSEE
20.1 DESTRUCTION OR CASUALTY NO ENTITLEMENT TO TERMINATION.
Lessee covenants and agrees with Lessor that no destruction to any building or
improvement by fire, windstorm or any other casualty shall be deemed to entitle the
Lessee to surrender possession of the Premises or to terminate this Lease or to
violate any of its provisions or to cause any abatement or rebate in the rent then due
or thereafter becoming due under the terms hereof. If the Lease is canceled as the
result of Lessee's default at any time while there remains outstanding any obligation
from any insurance company to pay for the damage or any part thereof, then the
claim against the insurance company shall, upon the cancellation of the within
Lease, be deemed immediately to become the absolute and unconditional property
of the Lessor.
20.2 NO SUBORDINATION OF LESSOR'S TITLE.
Lessee covenants and agrees with Lessor that nothing in this Lease contained shall
ever be construed as empowering the Lessee to encumber or cause the Lessor to
encumber or subordinate the title or interest of the Lessor.
20.3 CONVENANT REGARDING SURRENDER.
Lessee covenants and agrees with Lessor that at the termination of this Lease the
Lessee will peaceably and quietly deliver possession of the Premises and all
improvements thereon unto the Lessor.
20.4 FURTHER CONVENANT REGARDING ENCUMBRANCES.
Lessee shall not mortgage, pledge, hypothecate or otherwise encumber its
leasehold interest without the prior written consent of Lessor, as provided for in this
41
Lease.
ARTICLE XXI - COVENANT OF QUIET ENJOYMENT
Lessor covenants and agrees with Lessee that as long as the Lessee keeps and performs
;3.11 of the covenants and conditions by the Lessee to be kept and performed, the Lessee
shall have quiet and undisturbed and continuous possession of the premises, free from any
claims against the Lessor and all persons claiming under, by or through the Lessor.
ARTICLE XXII - LESSOR'S RIGHT OF ENTRY
The Lessor or its agents shall have the right to enter upon the Premises at all reasonable
times to examine the condition and use thereof, and to assure and safeguard that the
public purposes contemplated in Paragraphs 4.2 and 4.3 are being carried out; provided,
only, that such rights shall be exercised in such manner so as not to interfere with the
Lessee in the conduct of the Lessee's business on the Premises; and if the Premises are
damaged by fire, windstorm or by other casualty that causes the Premises to be exposed
to the elements, then the Lessor may enter upon the Premises to make emergency repairs;
but if the Lessor exercises its option to make emergency repairs, such act or acts shall not
be deemed to excuse the Lessee from his obligation to keep the Premises in repair. If
Lessor makes any emergency repairs pursuant to the terms hereof, Lessee shall reimburse
Lessor for all such repairs upon receipt by Lessee of Lessor's notice of repairs made and
statement and proof of costs incurred.
ARTICLE XXIII- NO REPRESENTATIONS BY LESSOR
Lessee acknowledges that it has examined the Premises and knows the condition thereof
and accepts the Premises in its present condition, "as is," and without any representations
or warranties of any kind or nature whatsoever by Lessor as to its condition or as to the use
or occupancy which may be made thereof. The Lessee assumes, in accordance with
provisions of this Lease, the sole responsibility for the condition, operation, maintenance
and management of the Premises and all improvements now or hereafter situated thereon,
and the Lessor shall not be required to fumish any facilities or services or make any repairs
42
or structural changes, additions or alterations thereto.
ARTICLE XXIV - LESSEE TO COMPLY WITH ALL LAWS
24.1 LESSEE'S COMPLIANCE WITH ALL LAWS.
Lessee shall at all times comply with all laws, ordinances, regulations and orders of
Federal, State, County and municipal authorities pertaining to the Premises and
Lessee's improvements and operations thereon.
24.2 LESSEE'S OBLIGATION TO PAY FINES, ETC.
Lessee shall pay all costs, expenses, fines, penalties and/or damages which may
be imposed because of the failure of Lessee to comply with this Article, and Lessee
shall indemnify Lessor from any and all liability arising from such noncompliance.
24.3 NO DISCRIMINATION CLAUSE.
Lessee covenants and agrees that there will be no discrimination as to race, color,
creed or national origin in its use of the Premises.
ARTICLE XXV - SURRENDER OF THE PREMISES
25.1 SURRENDER OF THE PREMISES.
The Lessee shall, on or before the last day of the term herein demised, or the
sooner termination thereof, peaceably and quietly leave, surrender and yield upon
to the Lessor the Premises, together with any and all equipment, fixtures,
fumishings, appliances or other personal property located at or on the Premises and
used by Lessee in the maintenance, management or operation of the Premises,
excluding any trade fixtures or personal property which can be removed without
material injury to the Premises, free of all liens, claims and encumbrances and
rights of others and broom-clean, together with all structural changes, alterations,
additions, and improvements which may have been made upon the Premises, in
43
good order, condition and repair, reasonable wear and tear excepted, subject,
however, to the subsequent provisions of this Article. Any property which pursuant
to the provisions of this Article is removable by Lessee on or at the Premises upon
the termination of this Lease and is not so removed may, at the option of the
Lessor, be deemed abandoned by the Lessee, and either may be retained by the
Lessor as its property or may be removed and disposed of by Lessor at the sole
cost of the Lessee in such manner as the Lessor may see fit. If the Premises and
personal property are not surrendered at the end of the term as provided in this
Article XXV, the Lessee shall make good to the Lessor all damages which the
Lessor shall suffer by reason thereof, and shall indemnify, the Lessor against all
claims made by any succeeding tenant, or purchaser, so far as such delay is
occasioned by the failure of the Lessee to surrender the Premises as and when
herein required.
25.2 NO SUBLEASES. ETC.
The Lessee covenants and agrees that it will not enter into any subleases,
subtenancies, licenses or concession agreements relating to the Premises for a
period of time beyond the stated expiration date of this Lease.
ARTICLE XXVI - FORCE MAJEURE
Either party hereto shall be excused from performing any of its respective obligations or
undertakings provided in this Lease, except as provided in Article XXV hereof, "Surrender
of the Premises," and excepting any of its respective obligations or undertakings to pay any
sums of money under the applicable provisions hereof, for so long as the performance of
such obligations are prevented or delayed, retarded or hindered (plus such additional time
mutually consented to by the parties) by act of God, weather or unusual severity, fire,
earthquake, flood, hurricane, explosion, action of the elements, war (declared or
undeclared), invasion, insurrection, riot, mob violence, sabotage, malicious mischief,
inability to produce or general shortage of labor, equipment, facilities, materials or supplies
in the open market, failure of transportation, strikes, lockouts, action of labor unions,
44
condemnation, public requisition, laws, order of govemment or any other cause, whether
similar or dissimilar to the foregoing, not within the reasonable control of the respective
party if such party hereto gives notice of such delay to the other party within twenty (20)
days of the ocqurrence of such event.
ARTICLE XXVII- MISCELLANEOUS PROVISIONS
27.1 GRACE PERIODS RUN CONCURRENTLY.
All periods of notice and/or grace, including any periods of notice which the law may
require as conditions precedent to the exercise of any rights by the Lessor against
the Lessee shall, at the option of the Lessor, run concurrently and not successively.
27.2 ARREARAGES.
All arrearages in the payment of rent shall bear interest at the rate of ten percent
(10%) per annum from the date when they became due and payable hereunder until
the date when they are actually paid.
27.3 LANDLORD-TENANT RELATIONSHIP REGARDING COLLECTIONS.
The relationship between the parties is that of landlord and tenant, and all statutory
provisions in the State of Florida regulating the relationship of landlord and tenant,
respecting the collection of rent and other charges, or the repossession of the
Demised Premises, shall accrue to the Lessor hereunder.
27.4 LESSOR'S REMEDIES NOT OTHERWISE PROVIDED.
In the event of a breach or threatened breach by the Lessee of any of the
agreements, conditions, covenants orterms hereof, the Lessor shall have the right
of injunction to restrain the same, and the right to invoke any remedy allowed by law
or in equity as if specific remedies, indemnity or reimbursement were not herein
provided for.
45
27.5 RECEIVERS.
In the event of any default on the part of the Lessee in the performance of or
compliance with any of the terms, covenants, provisions or conditions of this Lease,
and the Lessor is required to bring any action or proceedings as a result thereof,
then it is agreed that the Lessor shall have the right to apply to any court having
jurisdiction for the appointment of a Receiver of all and singular the Demised
Premises, buildings, fixtures, fumishings and improvements located thereon,
together with the rents, issues and profits therefrom, and the Lessee does hereby
expressly consent to the appointment of such Receiver by the court with the usual
powers and duties of Receivers in such cases, and that such appointment be made
by the court as a matter of strict right to the Lessor and without reference to the
adequacy or inadequacy of the value of the property which is subject to the Lessor's
liens, or to the solvency or insolvency of the Lessee, and without reference to the
commissions of waste.
27.6 COOPERATION.
The Lessor and Lessee hereby agree to cooperate fully with each other at all times,
and in addition to those matters hereinabove specifically referred to, to perform
such other and further acts, and sign and deliver such papers and documents, as
may be necessary in the circumstances from time to time during the term of this
Lease to give full effect to all of the terms, covenants, conditions and provisions of
this Lease.
27.7 CAPTIONS.
The captions of this Lease are for convenience and reference only and in no way
define, limit, or describe the scope or intent of this Lease nor in any way affect this
Lease.
27.8 INDEX.
The index preceding this Lease, but under the same cover, is for the purpose of
46
convenience and reference only and is not to be deemed or construed in any way
as part of this Lease, nor as supplemental thereto or amendatory thereof.
27.9 LAWS OF FLORIDA APPLY.
This Agreement shall be govemed by the laws of the State of Florida regardless of
the diversity of citizenship of the parties in interest or the place of execution of this
Lease.
27.10 COVENANTS RUNNING WITH THE LAND.
That all covenants, promises, conditions and obligations herein contained or implied
by law are covenants running with the land and shall attach to and be binding upon
the heirs, executors, administrators, successors, legal representatives and assigns
of each of the parties to this Lease.
27.11 TIME IS OF THE ESSENCE.
Time is of the essence in every particular and particularly where the obligation to
pay money is involved.
27.12 NOTICE.
When the parties desire to give notice unto the other or others in connection with
and according to the terms of this Lease, such notice shall be given by Registered
or Certified Mail, Return Receipt Requested, and shall be deemed given when it
shall have been deposited in the United States Mails with sufficient postage prepaid
thereon to carry it to its addressed destination, or by such conveyance then
permitted by law, and the notice shall be addressed as follows:
To the Lessor:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
47
and with a copy to: City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
To the Lessee: Director
Miami Beach Watersports Center, Inc.
6500 Indian Creek Drive
Miami Beach, FL 33141
Where the parties on either side, Lessor or Lessee, consist of more than one
person, notice unto or default by one of the persons on that side shall constitute
notice unto or default by all of the persons on that side.
27.13 ATTORNEYS' FEES.
If, in connection with the enforcement of this Lease and by reason of the Lessee's
failure to keep and observe all of the covenants and conditions herein contained by
the Lessee to be kept and performed, it shall be necessary for the Lessor to employ
an attomey, then the Lessee shall pay the Lessor all reasonable attomeys' fees and
court costs incurred and/or expended by the Lessor, including all appellate fees and
costs. And conversely, if, in connection with the enforcement of this Lease and by
reason of the Lessor's failure to keep and observe all of the terms, covenants and
conditions herein contained by the Lessor to be kept and performed, it becomes
necessary for the Lessee to employ an attorney, then the Lessor shall pay the
Lessee for all reasonable attomeys' fees and court costs incurred and/or expended
by the Lessee, including all appellate fees and costs. Such fees and costs shall be
awarded only to the prevailing party.
27.14 VENUE.
This Agreement shall be enforceable in Miami.Dade County, Florida, and if legal
48
action is necessary by either party with respect to the enforcement of any or all of
the terms or conditions herein exclusive venue for the enforcement of same shall lie
in Miami-Dade County, Florida. Lessor and Lessee hereby knowingly and
intentionally waive the right to trail by jury in any action or proceeding that
Lessor and Lessee may herein after institute against each other with respect
to any matter arising out of or related to this Agreement or the Demised
Premises.
27.15 LESSOR'S LIMITATION ON LIABILITY.
The Lessor desires to enter into this Agreement only if in so doing the Lessor can
place a limit on Lessor's liability for any cause of action for money damages due to
an alleged breach by the Lessor of this Agreement, so that its liability for any such
breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Lessee
hereby expresses its willingness to enter into this Agreement with the Lessee's
recovery from the Lessor for any damage action for breach of contract, or any other
cause of action for money damages, to be limited to a maximum amount of Ten
Thousand ($10,000.00) Dollars. Accordingly, and notwithstanding any other term or
condition of this Agreement, Lessee hereby agrees that the Lessor shall not be
liable to Lessee for damages in an amount in excess of Ten Thousand ($10,000.00)
Dollars for any action or claim for breach of contract, or any other cause of action
for money damages, arising out of the performance or nonperformance of any
obligations imposed upon the Lessor by this Agreement. Nothing contained in this
subparagraph or elsewhere in this Agreement is in any way intended to be a waiver
of the limitation placed upon Lessor's liability as set forth in Florida Statutes, Section
768.28.
27.16 RECORDING IN THE PUBLIC RECORDS.
A memorandum of agreement reflecting the execution hereof, and any
modifications, assignments or transfers of this Lease, shall be recorded in the public
records of Miami-Dade County, Florida, at Lessee's cost.
49
IN WITNESS WHEREOF, the Lessor and Lessee have hereunto affixed their
respective hands and seals at the place, and on the day and date first hereinabove written.
Signed, sealed and delivered in the presence of:
~P~..
City Clerk
Attest:
Witnesses:
MIAMI BEACH W A TERSPORTS CENTER, INC.
a Florida corporation not-for-profit
~p~
Signature
x'~IJJ. ~~
Signature
~ Nusbc::-v/"V7
Print Name
~IJ!lold w. Sh~
Print NamefTitle
~~~ [I)~
Signature
~~\WA..;)' G~ee..M~
Print Name
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECunON
4J 11I1!JIJI/ ~ - 7-1-0 y
~ Date
50
"
STATE OF FLORIDA
)
)
)
SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this 07;2... day of
,2002, by Mayor David Dermer and Robert Parcher, City Clerk, ortheir
de Ignees respectively, on behalf of the CITY OF MIAMI BEACH, known to me to be the
persons described in and who executed the foregoing instrument, and acknowledged to
and before me that they executed the instrument for the purpo~in expressed.
WITNESS my hand and official seal, this ~.;2 day of J , 2002.
~7!M~
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)
)
OFFIClALNOJ'ARY EAL
LlLUAN BEAUCHAMP
NOJ'ARY PUBUC Sf ATE OF FLORlDA
COMMISSION NO. DDl09289
MY COMMISSION EXP. APR. 29
SS:
^ The foregoing instrument was acknowledged before me this lib... day of
B.~c..~ ,2002, by enwo\& W ~QtJ.e. ,on behalf of the MIAMI
BEAC WATERSPORTS CENTER, INC. a Florida corporatIon not-for-proflt, known to me
to be the persons described in and who executed the foregoing instrument, and
acknowledged to and before me that they executed the instrument for the purposes therein
expressed.
WITNESS my hand and official seal, this 1"" d of t\~w u.~~ , 2002.
otary Public, State of Florida at Large
Commission No.:
My Commission Expires:
_;"JId_JIlt ~
O~~.U).s.r.~
'IbII!I! ,... ,
}6adIc ~Cb" ..
F:\DDHP\$ALL \ASSE1\Shane\SHANE.watersorts.LEASE.doc
51
Exhibit "A"
THIS IS A SKETCH AO.' Fe AN. AS~BUILT\ SURVEY OF:
PA t<.c.E L "1'1 ": \
A Westerly part of Los 17 thr9u~h 21, Block 3, Amended Second Ocean
Front Subdivision, recorded in Plat Book 28 at page 28 of the public
records of Dade County, Florida,. Said Part described as follows:
Comme.:1ce (P.O.C.) at the Sou-cheasterly corner of the above referenced
Lot 17 and run N.89014'30"W. along the Southerly line of said Lot 17, a
distance of 131.364 feet; Thence run N.8003'52"W., a distance of 57.75
feet to a point in Lot 17, ~~id point bftin9~the Point of Beginning
(P.O.B.); Thence continue N,~o03'52"W.,ftofs;'>17 through 21 inclusive of
said Block 3, a distance of 321.74 feet to a point on the Northerly line
of said Lot 21; Thence run N.89014'30"W. along the Northerly line of.",'
said Lot 21, a distance at 47.041 feet to the Northwesterly corner of.
Lot 21: The following 5 courses are along the westgrly line of referenced
Lots 17 through 21 of said Block 3. Thence run S.8 04'57"E., a distance
,of 75.90 feet; Thence run S.9041'26''E., a distance of 76.264 feet; Th~nce
run S.9005'34"E., a distance of 76.123 f~et; ThenCe run S.So58'20"E., a
distance of 76.094 feet; Thence run S.50D7'08"E., a distance of 18.028
feet to a point on the Westerly.line of said Lot 17; Thence run
S.89ol4'30"E., parallel to the Southerly line of said Lot 17, a distance
of 43.163 feet to the Point of Beginning(?O.B.). Area described contains
14,260 square feet, more or less.
PLUS:
A parcel of land in~ndian Creey (Now Pilled) adjacent and contiguous
with the Westerly boundary of Block 3 of the above described subdivision,
conveyed by Deed from the Trustees of the Internal Improvement Fund of
the State of Florida by Deeds 19938 and 19940. Said land described as
follows: r"'"
Commence (P.O.C.) at the Southeasterly corner of referenced Lot 17 and
,run N.890l4'30"W. along the Southerly line of Lot 17 and its production
Westerly, a distance of 213.51 feet to the Westerly line of the land
described in the above referenced deeds.The following 4 courses are
along the said Westerly line. Thence run N.7025'44"W., a distance of
57.654 feet to the point of Beginning (P.O.B.); Thence continue
N.7025'44"W., a distance of 93.89 feet; Thence run N.8039'OO"W., a
distance of 152.045 feet; Thence run N. 7057'12"1'1., _cL}~istance of 75.875
feet to a point on the production Westerly of the Northerly line of the
above referenced Lot 21; Thence run s.e9014'30"E. along the said
westerly production of Lot 21, a distance of 34.827 feet ~o the
Northwesterly corner of said Lot 21. The following 5 courses are along
theqwesterly line of referenced Lots 17 through 21, Block 3. Thence ~un
S.8 04'57"E., a distance of 75.90 feet; Thence run S.9041'26''E., a',.
distance of 76.264 feet; Thenr.;e run S.9005'34''E., a distance of 76.123
fee~; Thence run S.S058'20"E., a distance of 76.094 feet; Thence run
S.5007'08"E., a distance of 18.028 feet to a point in said Lot 1'7;
'l'hence run N.890l4'30"W., parallel to th southerly line of referenced
Lot 17, a distance of 38.336 feet to the point of Beginning (P.O.B.).
Land described contains 11,596 square feet, more or less.
Total Area of the above described Parcel is 25,856 square feet, more or
less, or 0.594 acres, more or less.
52
Exhibit "B"
PARCEL HB"
An Easterly part of Lot 21 and 22, Block 3, AMENDED SECOND OCEAN FRONT
SUBDIVISION, recorded in Plat Book 28 at Page 28 of the Public Records of Miami-Dade
County, Florida, said land described as follows:
Commence (point of commencement) at the Southeasterly comer of Lot 17, Block 3 and
run N. 89"14'30" W. along the Southerly line of Lot 17 a distance of 30.084 feet to the
Westerly Rlght~f-Way line as it now exist of Indian Creek 0rtYe ; Thence continued along
the southerly line of Lot 17, N. 89"14'30" W. a distance of 183.426 feet to the Westerly -.
boundary of that line described In Deeds 19938 and Deed 19940 from the Internal
Improvement Fund, State of Florida. Thence run N. 'r25'44" W. along said Westerly line a
distance of 57.654 feet; thence continued along said line N. 75"25'44" W. a distance of
93.89 feet ; thence continue along said Westerly line N. 8"39'00" W. a distance of 152.045
feet to a point ; Thence continue along the said Westerly boundary N. 'r57'12" W. a
distance of 75.875 feet described in Deed 19940 to the Northerly line of Lot 21, Slock 3 of
the above described subdivision extended Westerly ; Thence run S. 89"14'30" E. along the
Northerly line of Lot 21 on its extension Westerly a distance of 81.868 feet to the
Northwesterly comer of that parcel shown hereon as parcel HS" and the Point of
Beginning (P.O.S.) of parcel "S" ; Thence continue along the Northerly line of Lot 21 a
distance of 127.96 feet to a point 49.002 feet Westerly of the original NE comer of said Lot
21 due to the street widening of Indian Creek Drive; Thence run S. 0"04'00" W. a distance
of 79.50 feet to.. point, said point being 4.50 feet South of the Northerly line of Lot 20 ;
Thence run S. 89"14'30" E. along a line parallel with and 4.50 feet South of the dividing line
between Lots 20 and 21, a distance of 99.60 feet; Thence run S. 31042'18" W. a distance of
24.65 feet to the Easterly line of referenced Parcel "A" ; Thence run N. 8"03'52" W. along
the Easterly line of Parcel "A" a distance of 101.85 feet to the Point of Beginning (P.O.B.).
Parcel HB" contains 9,832 square feet:t or 0.226 :t acres
53
Exhibit "e"
"
/~A
J i
"
..
......
u
......
<;)
o
~S' r '"
...<,:.-
"""'I~!.
t)
~
C\'l
tb
'l\
54
,.
Exhibit "D"
DESIGN REVIEW BOARD
City of Miami Beach, Florida
MEETING DATE: July 11,2001
IN RE: The Application for Design Review Approval for a one (1) story, .
detached addition to an existing rowing center.
FILE NO: 14437
PROPERTY: 6500 Indian Creek Drive
ORDER
The applicant, Miami Beach Watersports Center, Inc., filed an application.with the City of
Miami Beach Planning Department for Design Review Approval..
The City of Miami Beach Design Review Board makes the following FINDtN~SOFFACT,
based upon the evidence, information, testimol'lyand l11aterialspresented at the p~blic
hearing and which are part of the record for this matter: : ..
A. Based on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasonssetf()rth in the Planning
Department Staff Report, the project as submittedis consistent with the Design. .
Review Criteria Nos. 3 & 4 in Section 118-251 ofth~ Miami Beach-Coqe. . .. - ..
B. The project would be consistent with the.-:criteria-and requirer:nentsofsection. He-.
251 if the following conditions are met: . .'
1. Revised elevation, site plan and floor plan drawings shall be submitted t() and
approved by staff; at a minimum, such drawings shall incorporate the
following:
a. The co'mer parapet element on the northeast side of the structure
shall be simplified by eliminating the proposed step,.ina manner to_be
approved by staff.
b. Existing condition and elevation drawings shall ~e submitted.
c. The proposed striped awnings on the new and existing structures-shall .
not be permitted; such awnings shall be replaced with thin, metal
eyebrows, or more shallow pitched, solid awnings.- .
d. The gateway entries at the front of th~ property shall be further
developed, in a manner to be approved by staff."_
55
@
Page 2
DRB File No. 14437
Meeting Date: July 11, 2001
2. A revised landscape plan, prepared by a Professional Landscape Architect,
registered in the State of Florida, and corresponding site plan, shall be
. submitted. The species type, quantity, dimensions, spacing,locationand
overall height of all plant material shall be clearly delineated; at a minimum,
such plan shall incorporate the following:
a. All exterior walkways shall consist of decorative pavers, set in sand or
other semi-pervious material, subject to the review and approval of
staff.
b. All landscape areas which abut driveways and parking spaces shall
be defined by continuous concrete curb.
c. A fully automatic irrigation system with 100% coverage and an
automatic rain sensor in order to render the system inoperative in the
event of rain. ..
3. All building signage shall be consistent intype, composed of flush mounted,
non-plastic individual letters and shall require asePc:lrate 'permit.
4. The final exterior surface color scheme, including col()r samples.~h~Ube
subject to the review and approval of staff and shall require a separate
permit.
5. A traffic mitigation plan, which addresses all roadway. Level of Service (LOS)
deficiencies relative to the concurrency requirements of the. City Code,if
required, shall be submitted prior to the issuance of a Building Permit and the
final building plans shall meet all other requirements of the Land
Development Regulations of the City Code.
6. Manufacturers drawings and Dade County product approval-numbers for all
new windows, doors and glass shall be required, orior to the issuance of a
building permit.
7. All roof-top fixtures, air-conditioning units and mechanical devices shall be
clearly noted on a revised roof plan and shall be screened from view, in a
manner to be approved by staff.
8. All new and altered elements, spaces and areas shall meet the requirements
of the Florida Accessibility Code (FAC).
9. The project shall comply with any landscaping ,or other sidewalk/street
improvement standards as may be prescribed by a relevant Urban Design
56
~
Page 3
DRB File No. 14437
Meeting Date: July 11, 2001
Master Plan approved prior to the completion of the project and the issuance
of a Certificate of Occupancy.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence,
information, testimony and materials presented at the public hearing, which are part of the
record for this matter, and the staff report and analysis, which are adopted herein, including
the staff recommendations which were amended by the Board, that the Application for
Design Review Approval is granted for the above-referenced project subject to those
certain conditions specified in paragraph B of the Findings of Fact hereof (conditions #1-9,
inclusive), to which the applicant has agreed.
No building permit may be issued unless and until all conditions of approval as l)et forth
herein have been met. The issuance of Design Review Approval does not relieve the
applicant from obtaining all other required Municipal, County and/or State reviews and
permits, including zoning approval. If adequate handicapped access is not provided, this -
approval does not mean that such handicapped access is not required or that ~he Board
supports an applicant's effort to seek waivers relating to handicapped accessibility
requirements.
When reauestina a buildina permit. three (3) sets of plans approved bv the Board. modified
in accordance with the above conditions, as .well as annotated floor olans which clearlv
delineate the Floor Area Ratio (FAR) calculations for the proiect. shall be submitted to-the -
Plannina Department. If all of the above-specified conditions are satisfactorily addressed,
the plans will be reviewed for building permit approval. Two (2) sets will be returned to you
for submission for a building permit and one (1) set will be retained f()r the Design Review
Board's file. If the Full Building Permit is not issued within one (1) year of the meeting date
at which this Design Review Approval was granted and-construction does not commence
and continue in accordance with the requirements of the applicable Building Code, the
Design Review Approval will expire and become null and void.
Dated this J., G day of
BY:
THOMAS R. MOONEY, AICP
DESIGN AND PRESERVATION ANAGER
FOR THE CHAIR
Approved N; To Fonn: QM;..:A
Legal Department: ~
Filed with the Clerk of the Design Review Board on {;J
F:\PlAN\$DRB\DRB01\JULDRB01\14437.fo.doc ~
57
MEETING DATE:
IN RE:
DESIGN 'REVIEW BOARD
City of Miami Beach, Florida
June 18, 2002
"
The Application for a one (1) year Extension of Time ,to obtain a Bujlding
Permit for a previously issued Design Review Approval for a one (1) story
roof-top addition to an existing rowing center, as well as a one (1) story ,
detached structure.
FILE NO:
PROPERTY:
14437
6500 Indian Creek Drive
ORDER
The applicant, Miami Beach Waters ports Center,lnc.,filed a requestwiththe City of Miami 'Beach
Planning Department for an extension of time to obtai,na Building Permitfor.~ previously issued
, Design Review Approval..
The City of Miami Beach's Design Review Board makes the following fiNDING OFFACT.t>aS!!d', "
upon the evidence, information, testimony and materia.ls presented at the public heanng and which
are part of the record for this matter:
: .. The applicant submitted information establishing, among, other-things., that there
: 'were delays encountered il'1the ,approval and p~m:litt.ing.prq~.Tb.~'(o~9ing';:
,constitutes good cause Jor granting a one (1) ~ar ~$~ion '.of .tirrle"tothe." ,
','.' requirement that a Full Building Permit be obtained withino[le ~1} year..,af!hEtorigtnal "
, Design Review Approval. ., ..' :"
-'!::.
" IT IS HEREBY ORDERED, based upon the foregoing finQ.i!'l9 .of fa.ct~a!:l(t~e ~~ff:repQr.t and ,
" analysis, which i,s adopted herein, including the recqmrJ1enqation, thata o~e (1) ~r extension of .
time to obtain a full building permit (which one [1] year period shanru~.frOm the expiration date of
the original approval, which is July 11, 2002) is granted-for the above-referenced project concjitiol1ed ' '
upon the following, to which the applicant has agreed: u
1. A full building permit, not a foundation or shell permit, for thepl'Qje<;t shall be.obtained by
July 11, 2003. '
2. Construction shall commence and continue in, accordance ,with the applicable B.lJilciing'Coc!e.
3. The Final Order is not severable, and if any':provision.orconciition hereof,is held void: or
unconstitutional in a final decision by a court of competent jurisdiction. the .order shall be '
retumed to the Board for reconsideration as to whether t~e order meets the criteria foc
approval absent the stricken provision or condition, and/or, it is appropriate to modify the
remaining conditions or impose new conditions.
No building permit may be issued unless and until all cqnditions of approval as set forth in thi$ order.
and the Order for the July 11, 2001 approval have. b~en mElt.: J"he. issLlam:e of Design J~e~w
Approval does not relieve the applicant from obtaining alloth.er required Municipal, County.an~or.~. .
58
~
Page 2 of 2
ORB File No. 14437
Meeting Date: June 18,2002
State reviews and permits, including zoning approval. If adequate handicapped access .is not,
provided, this approval does not mean that such handicapped access is not required or that the
Board supports an applicant's effort to seek waivers relating to handicapped accessibility
requirements:
When reauestina a buildina oermit. three (3) sets of the olans aooroved bv the Board. modified in '
accordance with the conditions set forth in this Order 'and the Final Ordei fo(the 'JiJl"f1: 2<r0'1
meetina. shall be submitted to the Plannina Deoartment. If all of the above-speCified cOnditions are
satisfactorily addressed, the plans will be reviewed for building permit approval. TWo (2) sefS will be ,
returned to you for submission for a building permit and one (1) set will be retained for the Design
Review Board's file. If the Full Building Permit is not issuedby July 11, 2003 and cons,truction does
not commence and continue in accordance with the applicable Building Code, the approval ",!i11
expire and become null and void. '
I~
Dated this
day of ,JuUf
~ 20 D~..
.-
BY: '
THOMAS R. MOO EY, AICP
DESIGN AND.PRESERVATION
.FO~, TM!; GHAIR
..
'-~.'..... '. ....
~e,(
(/
,Filed with' the Clerk of the Design Review Board on,
Approved As To Form:
Legal Department:
(t-2'-e12,..
,,7(02-/0--,<-
I I
)
eo-t,' " ' ' .. ,,,)',,, ,
. -".' ,.- . -,
- . . -' ..
F :\PLAN\$DRB\DRB02IJundrb02\14437 -eJo.doc
59
~
.:-13 THURSDAY, JUNE 27,2002 The Herald
MB
CITY OF MIAMI BEACH
NOTICE OF A PUBLIC HEARING
~
......
NOTICE IS HEREBY given that a public hearing will be held by the
City Commission of the City of Miami Beach, in the Commission
Chambers, 3rd floor, City Hall; 1700 Convention Center Drive, Miami
Beach, Florida, on Wednesday, July 10, 2002 at 10:45 a.m., to hear
public comment regarding a proposed Second Amended and Restated
Lease Agreement with Miami Beach Watersports Center, Inc., for the
continued use of City-owned property located at 6500 Indian Creek
Drive, Miami Beach, Florida, as a rowing facility; further to consider
waiver, by 5/7th vote, of the competitive bidding and appraisal
requirements; as required by Section 82-39 of the Miami Beach City
Code.
INQUIRIES may be directed to the Economic Development Division at
(305) 673-7193.
ALL INTERESTED PARTIES are invited to appear at this hearing, be
represented by an agent, or to express their views in writing
addressed to the City Commission, c/o the City Clerk, 1700
Convention Center Drive, 1 st Floor, City Hall, Miami Beach, FloFida
33139. This meeting may be continued and under such.
circumstances additional legal notice would not be provided.
Robert E. Parcher, City Clerk
City of Miami Beach
Pursuant to Sectlon 286.0105. Fla. Stat. the City hereby advises the public that: If a
person decides to appeal any decision made by the City Commission with respect to any
matter considered at Its meeting or its hearing, such person must ensure that a
verbatim record of the proceedings is made, which record includes the testimony and
evidence upon which the appeal is to be based. This notice does not constitute consent
by the City for the introduction or admission of otherwise inadmissible or irrelevant
evidence, nor does tt authortze challenges or appeals nOt otherwise allowed by law.
In accordance with the Americans with Disabilities Act of 1990, persons needing special
accommodation to participate in this proceeding should contact the City Clerk's office no
later than four days prtllr to the proceeding. Telephone (305) 673-7411 for assistance; if
hearing impaired. telephone the Rorlda Relay Service numbers, (800) 955-8771 (TOO)
or (800) 955-8770 (VOICEl. for assistance. Ad #0115