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Index for Marina Lease AgreementINDEX FOR MARINA LEASE AGREEMENT ~R . ~LE I: MARINA SITE AND TERM l• Description of Marina Site 2• Term for Area 1 3• Term for Areas 3 and' 4 4• Date of Possession ARTICLE II: CONSIDERATION l • 2• Initial Lump Sum Payment Rental 3= Method of Payment ~ ' 4• Reevaluation of Rent S• No Effect for Termination as to Areas 3 and 4 RTIL'I-E III: GROSS RECEIp'f5 1• Gross Receipts Defined 2• Items Excluded 3• Tax Returns tTIC ~ rv: RECORDS, AUDIT, ANNUAL REPORT, VO P~,t2TNERSHIP 1 • Records 2• Annual Report 3• Audit . 4• No Partnership Relationship 'TICLE V: TAXES, ASSESSMENTS, AND UTILITIES 1 • Lessee to Pay 2• Procedure if Taxes Assessed PAC 3 3 4 5 6 7 7 7 9 l0 11 12 12 13 13 14 14 15 16 16 17 17 17 I•ICLE VI: MARINA LICENSES AND PERMITS AND CHALLENGE TO LEASE 1• Marina Licenses and Permits 2• Challenge to Lease << 18 18 20 continued... INDEX FOR MARINA LEASE AGREF~IIIENT PAGE TWO ARTICLE VII; CONSTRUCTION AND IMPROVEMENTS PAGE 1 • Construction Schedule 2 21 • Plan Approval 3. Quality of Construction 21 k. Changes in Plans and Specifications s• Procedures for Ap rov l 22 23 p a or Disapproves 6• Right of Inspection 23 23 ~• Construction at LESSEE'S Sole Expense 8• Improvements to be pr 24 operty of LESSEE During Term 9• Indemnification of CITY ! 0 ~ 25 25 . Cost of Improvements 11. Liens 26 12. Performance Bond 26 27 ARTICLE VIII: SECURITY DEPOSIT 27 ARTICLE IX: ENCUMBRANCE OR ASSIGNMENT OF LEASEHOL D 28 1• Leasehold Mortgage 2 30 • Assignment-Sublease 30 ARTICLE X: USE OF PREMISES 35 ARTICLE XI: NO REPRESENZ-AnONS gY CITY 36 ARTICLE XII: CITY NOT LIABLE FOR FAILURE OF WATER SUPP LY 39 , ETC. 39 ARTICLE XIII: OPERATING PLAN, REPAIR AND ALTERATI ON S 1• Operating Plan k0 2• Repairs 3• Alterations k0 k• Operation of Marina - k0 k2 ARTICLE XIV: MAINTENANCE AND MANAGEMENT OF LANDSC AND PARKING AREAS 43 API NG • k3 'TICLE XV: LESSEE TO COMPLY WITH LAWS 4k continued... INDEX FOR MARINA LEASE AGREEMENT ARTICLE XVI: INSPECTION BY CITY ARTICLE XVII: INSURANCE l • Insurance Certificates 2• Compliance With Insurance Requirements 3• Cooperation on Collection 4• Leasehold Mortgage Requirements S• Deposit of Certificates 6• Resolution of Conflicts Between CITY and Mortgagee 7• Change of Coverage ARTICLE XVIITs DAMAGE AND DESTRUCTION l• Obligations to Rebuild ~• Damage Less Than $200,000 3• Damage $200,000 or More 4• Deficiency Deposit S• No Surrender of Lease 6• Excess Proceeds ~• No Obligation to Rebuild, When 8• Termination, When ARTICLE XIX: CITY MAY CURE DEFAULTS PAGE THREE PAGE 46 46 46 49 SO SO S1 S1 52 52 52 S3 S4 56 56 57 57 S8 . S9 ARTICLE XX: TERMINATION OF AGREEMENT l • Events of Default 2• Right of Re-Entry 3• Right to Relet 4• LESSEE's Continuing Obligations S• No Waiver 6• Remedies Preserved 7• Rights Cumulative 8• LESSEE Responsible For Sub Lessees ARTICLE XXI: ADDITIONAL PROVISIONS RELATING TO LEASEHOLD MORTGAGE 1• City interest in Site ~tVot to be Encumbered 2• Mortgage Requirement as to Insurance Proceeds 3• LESSEE to Comply with Mortgage Requirement 59 59 61 b2 62 63 64 64 65 6S 6S 6S 66 continued... INDEX FOR MARINA LEASE AGREEMENT PAGE FnLm ARTICLE XXII: NOTICES PAGE 66 ARTICLE X)CIII: INDEMNIFICATION 67 ARTICLE XXIY: LIENS 69 ARTICLE XXY: EMINENT DOMAIN ' I • Permanent Taking 70 2• Temporary Taking 70 72 ARTICLE XXVI: WAIVER OF REDEMPTION . 73 ARTICLE XXVII: COVENANT OF QUIET ENJOYMENT' 73 RT7CLE XXVIII: WAIVERS AND SURRENDERS TO BE IN WRITING 74 ARTICLE XXIX: SURRENDER OF THE MARINA SITE 75. ARTICLE XXX: NET LEASE 76 ARTICLE XXXI: CITY AND LESSEE TO FURNLSH STATEMENT 7.7 ARTICLE XXXII: FORCE MAJEURE 77 ARTICLE XXXIII: EQUAL EMPLOYMENT OP~RTIINITY AND NONDISCR IMINATION 78 ARTICLE XXXIV: ADDITIONAL RESPONSIBILITIF_S 1 • Dockage Agreements 2 79 • Dockage Rates 3• Rights of First RefusalJOptions on Wet Slips 79 80 . '~ 80 continued... INDEX FOR MARINA LEASE AGREEMENT ARTICLE XXXY: CONFLICT OF INTEREST ARTICLE XXXVI: HOLDING OVER ARTICLE XXXVII: TIME is OF THE ESSENCE ARTICLE XXXVIII: MISCELLANEOUS 1• Leasehold Mortgage 2• Captions 3• Gender of Words 4• No Broker s• Severabiiity 6• Successors 7• Surviving Covenants 8• Memorandum of Lease 9• Interest 10. Consent 11. Access Concerning Future Development and Utilities 12. Definition of City Manager 13. Applicable Law 14. Definition of Substantial Construction ' 13. Biscayne Street 16. Baywalk Maintenance ARTICLE XXXIX: ENTIRE AGREEMENT PAGE FIVE PAGE 80 81 81 81 81 82 82 82 82 83 83 83 83 84 84 8S 8S 85 85 86 86 LEASE AGREEMENT THIS LEASE AGREEMENT entered into this day of _, 1983 by and between the City of Miami Beach, a municipal corporation of the hereinafter referred to as the CITY, and Carner-Ma State of Florida, son Associates, Ltd., a limited partnership organized and existing under the laws of the State of Florida, hereinafter referred to as LESSEE. WITNESSETH WHEREAS, the City of Miami Beach is desirous of leasing land for the construction and development of the Miami Beach ~Vlarina in order to maximize its use for a boat marina and recreational facili port, ty, offering dockage and other marina related services, for the use of and for the benefit of the general public; and WHEREAS, the City Commission finds it to be in the best interest of the CITY to expand national and international tourism for the City of Miami Beach and to encoura a the redevelopment of South Beach b S Y providing such marina facilities; -and WHEREAS, the CITY has solicited and received proposals pursuant to a certain Request for Proposals, Bid No. 54-83, for the lease of the marina and LESSEE has submitted a ro duly p posal to finance, construct and operate a marina in accordance with said request and FINAL ^aHEZEi--S, by resolution, the City Commission, .after reviewing the ro osal ~bmitted for p p s the marina, authorized and directed the City Manager to negr,~tiate with LESSEE, South Short Marina Joint Venture and Frank Tolin in that order; and WHEREAS, by resolution, the Miami Beach Redevelopment Agency, after reviewin the proposals submitted for the marina, authorised and- directed the City Mana g get to negotiate with LESSEE, South Shore Marina Joint Venture and Frank Tolin in that order; and WHEREAS, by resolution, the Miami Beach Redevelopment A enc has cert' ' g Y ified that this Lease Agreement is in the best interests of the redevelopment of South Beach i furtherance of the Community Redevelopment Act and that the redevelo ment o n marina on Land subject to the regulatory control of the agen ursuan p f the cY p t to said act (and ^~irsuant to permits issued to the Agency by the Department of Environmental Regulation t the Corps of Engineers) furthers the plans and public purpose of said redevelopment; and WHEREAS, the LESSEE has executed this Lease Agreement, which Agreement does not slier. the municipal use of the property and offers fair value to the CITY consideration far this lease; and as WHEREAS, the LESSEE has represented that it is both desirous and capable of financing, constructing and operating the facilities at said marina; NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained, the parties herein covenant and agree as follows: ;. FINAL _ -2- .ll~~\^.. L.L l MARINA SITE AND TERM 1 • Description of Marina Sit~• ' The CI?Y hereby leases unto the LESSEE for the purposes and un hereinafter set forth, the real property (hereinafter cane der the conditions d the "demised premises" or "premises"), located in the City of Miami Beach, Florida, consisting of three together with improvements thereon, designated as Areas 1, 3 and 4 on tracts of land Exhibit A annexed hereto and made part hereof. Appurtenant to Area 1, LESSEE shall have the ri ht tract designated Area 2 in. Exhibit A in accordance with and sub'ect to cer . g to use the l tarn licenses and permits described in Article VI hereof relating to Area 2. Said demised premises and Ar constitute the Miami Beach marina as delineated on Exhibit A (herein ca ea 2 lied the "Marina Site"~. As to Area 1, 3 and 4, the CITY represents and warrants that it has ood and insurable fee simple absolute title, free and clear of all char es liens g ~ marketable g ~ and encumbrances of any nature, except for easements, licenses, rights of way, and other similar res r' of record and except for a Notice of Lis Pendens filed in connection with t actions referred to .in Article XXIII below, sufficient to allow LESSEE to be the litigation able to develop and operate the Marina Site in accordance with this agreement. As to Area 2, the CITY represents and warrants, evidenced by Exhibit C attached hereto, that it has obtained in conjunction with the Miami ` Beach Redevelopment Agency, =a11 licenses and ermits necessary. for LESSEE to be able to develop and operate tt~e 1Aarina Site in accord p this agreement and without necessity for any transfer of such licenses and er ance with p mils which would interfere with LESSEE'S construction, development and operations on the Marina ' LESSEE, and the Original Mortgagee have completely relied, and will continue Site. completely to rely, upon CITY'S representations and warranties contained in this sub-pars ra h as inducement to enter into this Agreement and make the Original yiortga e. CITY an 8 further ~« FINAL - - 3- "~Fre~rnts :.`.at :2 has given notice of termination to the. present manager of the Marina Site, pursuant to_ the- provisions of a certain agreement • with Yachting Center Management Corporation. 2• Term for Area 1 The term of this ~ Lease Agreement for Area. 1 (and LESSEE'S right to operate the marina on Area 2) shall be thirty (30) full Lease Years commencing after the Date of Possession (as defined in this Article) and ending upon the expiration of the thirtieth (30th) consecutive Lease Year on December 31, 2014 (hereinafter called the"Initial Term"), If the LESSEE gives written notice to the CITY not less than nine (9) months prior to the expiration of the Initial Term of this lease and if this lease shall then be in full force and effect and the LESSEE shall have fully performed all of its terms and conditions, or has caused ail of .Its terms and conditions to have, been fully performed, then the LESSEE shall have the option to extend this lease for a first extended term of ten (! 0) years (hereinafter called the "First Extended Term"), commencing on the date immediately succeeding the expiration date of the Initial Term and ending on the date immediately preceding the tenth (10th) anniversary of such date.. If this lease shall have been so extended, ahd if the LESSEE gives written notice to the CITY not less than nine {9) months prior to the expiration of such First Extended Term, and if this lease as so extended shall then be in full force and effect and the LESSEE shall have fully performed all of its terms and conditions or have caused all its terms and conditions to have been fully performed, then the LESSEE shall have the_ option to extend this lease for a second extended term of ten (10) years (hereinafter called the Second Extended Term"), commencing on the date immediately succeeding the expiration date of the First Extended Term and ending nn th~~ date preceding the tenth (10th) anniversary of such date.' ~ •If this lease shall have been so extended, anJ if LESSEE .. FINAL -4- ~i'r'2s written notice to tht CITY not less than nine (9) months prior to the expiration of such Second Extended Term, and if this lease as so extended shall then be in full force and eff ect and the LESSEE shall have fully performed all of its terms and conditions, or has caused all of .lts terms and conditions to have been fully performed, then the LESSEE shall have th e opiton to extend this lease for a third and final extended term of ten (10) years (hereinafter called the '?hird Extended Term"), commencing on the date immediately succeedin the g expiration date of the Second. Extended Term and ending on the date immediately preceding t tenth (10th) annlvecsary of such date. These extensions shall be upon the same terms and conditions hereof. When used herein, "term" or "lease term" shall be deemed to include all extended terms unless the contrary is indicated. 3. Term for Areas 3 and 4 This Lease Agreement for Areas 3 and 4 shall commence upon the Date of Possession (as defined in this Article) and shall be terminable at the will. of the CITY with or ~xithout an Event of DefaWt (as defined in Article XX hereof) thereafter upon the giving of sixty (60) days, written notice; however, LESSEE shall have no right to terminate as to any ,area, Including Areas 3 and 4, without a contemporaneous termination of the Lease Agreement with respect to all Areas. Notwithstanding anything in this paragraph 3 to the contrary, CITY may not so terminate as to Areas 3 and 4 in an arbitrary or capricious manner; or, in any circumstances, except after specific plans have been formulated and completed for development of Areas 3 and 4 which require elimination of the parking area constructed on Bald areas by LESSEE. FINAL - _5_ It is specifically agr~ to and understood by the parties that Areas 3 and 4 are utlllzed b to be Y LESSEE to provide interim, off-street ,parking according to the General Guldellnes for Interim Surface Parking Facilities contained in the exhibits to the for Proposal, Bid No. Sk-83; and, that CITY may, at any time without Requests to LESSEE terminate this lease as to Areas 3 and 4 if ~ liability or obligation the CITY, prior to said termination, provides reasonable access to other parking of like kind or better, at a convenient locati elLher in Areas 3 and 4 and/or lots adjacent to Areas 1 3 4 on ,,and S (as designated on Exhibit A attached hereto). After said termination, and notwithstanding any provision her ' LESSEE shall have no obligation to maintain the parking surface, landsca in or ein, abutti or on P 8 baywalk n8 said Areas 3, 4, and S. LESSEE shall not be entitled to any compensation for the Interim Surface Parking Facilities constructed at LESSEE'S cost; and, the arties her P eto specifically agree that the method of financing for said parking facilities shall be determined by the reasonable discretion of the CITY at the .time said tenancy at will a Areas 3 and 4 is terminated. s to Upon the expiration or earlier termination of such tenancy at will, LESSEE shall surrender Areas 3 and 4 and cell improvements thereon in the manner set forth in Article XXIX hereof. k• Date of Possession LESSEE's Date of Possession of the 1Aarina Site shat! be as designated, in writin b the City Manager of the City of Miami Beach, but no lacer than August 1, 19.83. If fo g' y. reason whatsoever, CITY fails to deliver possession of the Marina Site to LESSEEabY August 1, 1983, then either art y P Y (and as either party's sole remedy in such event) may terminate this lease by giving notice prior to the Date of Possession in which case CITY all have no !lability for failure to'~deliver possession of the Marina Site and each part Y FINAL -6- shall be released from any and all liabili*;, e~"p2 that icjjCr snarl be the Fift ,, entitled to return of y Thousand Dollar ($SQ,000) Lump Sum Payment provided for in Ar ' Puagraph 1 hereof and the Securit t ~cle II, Y Deposit provided for in Article ~/[II hereof. ARTICLE II CONSIDERATION r 1• Initial Lumo Sum Payment As consideration for the lease of said premises and the ri ht to use LESSEE does hereby covenant and agree to pay the CITY an initi g Area 2, the Flity Thousand Dollars ($30,000). The CITY hereb ark al, lump sum payment of Y nowledges receipt of said lump sum payment, said sum having previously been deposited with the CITY :s bid securit by the CITY Y to be held pending execution of this Lease Agreement an.i tc~ be retained by the CITY after execution hereof as a part of the consideration on the !ea se and to cover the CITY's costs in regard to its Request for Proposal, Rid ,yo, Sr~_83. 2• Rental The LESSEE shall pay to the CITY as Base Rent the Nlinimur.z /annual or the Annual Percentage Rent specified below of Gross Rec Guaranteed Rent eipts, whichever may be realer: A• Minimum Annual Guaranteed Rent as follows; - a• From the Date. of Possession to the end of the second (2nd) Lease Year a minimum of One Hundred and Sixty Thousand Dollars ($ 160,000) per year ;. FINAL - -7- b• During the third (3rd) and fourth (4th) Lease Years, a minimum of Two Hundred and Focty Thousand Dollars($240,000) per year c• During the fifth (Sth) and sixth (6th) Lease Years, a minimum of Three Hundred and Twenty Thousand Dollars (.s 320,000) per year d• During the seventh (7th) through the tenth (10th) Lease Years, a minimum of Four Hundred Thousand Dollars ($400,000) pee year ~• During the eleventh (11th) through the twentieth (20th) Lease Years, a minimum of Four Hundred and Cighty Thousand Dollars ($480,000) per year f• During the twee Lease Years, a minlimum21of) Fiveu Hundred Fotrt ft Tho 2Sth) Dollars ($540,000) lxr year Y usand S• During the twenty-sixth (26th) through the last year of the Initial Term or Extended Terms, if any, a minimum of Six Hundred Thousand Dollars ($b00,000) per year, or B• "Annual Percentage Rent", which shall mean, with respect to each Lease Year an amount equal to the following: a• Twenty and six-tenths percent (20.65Y,) ui the Gross Receipts in such Lease Year from operations on Area Z (except as pro~,rided in subparagraphs b-e of this paragraph 8) until one year after the issuance of final certificates of occupancy on Areas 3 and 4; thereafter, the percentage rate Area 2 shall be increased at . the rate of one (1) additional percent per year to a maximum of twenty-five percent (255tS), plus b• Sixteen and six-tenths percent (16.b9i6) of the Gross ^'eczipts in such Lease Year from the dry storage facility un Area i, plus ~• Five cents ($O.OS) per gallon from the sale oI gasoline in such Lease Year, plus d• Two cents ($0.02) per gallon from the sale of diesel fuel in s+~ch Lease Year, plus e- Twenty and six-tenths percent (20.60 o; alt other Gross Receipts in such Lease Year. ;~ FINAL -8- 3. Method of Payment Annual percentage Rent shat! be calculated on a: mont'~ly basis based upon the above stated percentages of Gross Receipts. On or before the fifteenth (15th) day of each month LESSEE shall render to the City Manager, in a form prescribed by the Cit ' reasonably acceptable to LESSEE, a detailed r Y Manager and eport of Gross Receipts for that portion of the Lease Year which ends with and includes the last day of the previous ~:alendar month. T Lease Year shall be twelve (12) full calendar months.. A he partial Lease Year shall begin on the Date of Possession if the Date of Possession shall occur one the first day of a calendar month; otherwise said partial Lease Year shall begin on the first day of the first month following the Date of Possession. The first full Lease Year shall begin on January 1 198k~ and subsequent Lease Years shalt begin upon January 1 of each calendar year thereafter. Each report shall be signed by LESSEE or his responsible agent and shall includin the following: g A• The Total Gross Receipts for said portion of the Lease Year, itemized as to each of the five (3) categories specified in paragraph 2(B){a) _ 2(g)(e) of .this Article for which a separate percentage rental rate is established; B• The resulting Annual Percentage Rent for each of such five {5) categories computed as herein provided and the total thereof; C• The total Base Rent, previously paid by LESSEE for the Lease Year within which the preceding month falls. Concurrently with~the rendering of each monthly report, LESSEE shall pay the greater of the following two (2) amounts as Base Rent: A• The total Annual Percentage Rent computed for chat ,~o~~tion of the Lease Year ending with and including the last day of the preceding calendar month (Item B immediately above), less the total Base Rent previously paid for rnonths prior to the preceding ;Wort th ~~~ring the Le,~se Year (Item C immediately above) or NAL . " _q_ B• Ohc-twelfth (1/12) of the Minimum Annual Guaranteed Rent, multi lied b the number of months from the beginning of the Lease Year t o and including the preceding month, less total _ rentals reviousl Lease Year (Item C immediately aboYe), p Y paid for the in the event LESSEE is delinquent in rendering to the CITY an accounti ng of rent due or in remitting the rent due in accordance with the rental provisions of this Art' Article XX hereof, then the rent not paid when due shall bear interest tcle II and of in Article XXXVIII~ hereof from the date due until i at the rate specified Manager for the CIty of Miami Beach shall ~ d• provided, however, the City have the right to waive for good cause any Interest payment upon written application of LESSEE fors any such Jelin uenc further, if the LESSEE has made an overpayment in Base Rent in remit • q y' provided ling the rent due in accordance with the rental provisions of this lease, then said overpayment, if an sh refunded tq LESSEE and shall bear interest at the rate y' all be specified in Article XXXVII! hereof from the date due until paid; and, provided further, if the LESSEE has made an underpayment in Base Rent in remitting the rent due in arc ` provisions of this tease, then said underpayment, if an s ordance with the rental Y~ hall be paid to CITY and shall bear Interest at the rate specified in Article XXXVIII hereof from the date due until aid P If possession shall occur other than on the first (1st) day of a r_alendar month Ba Rent for that partial month shall be prorated and such prorated Base ~ R ent shall be se the CITY within fourteen (14) days from the date due. Paid to 4• Reevaluation of Rent In order to reflect the then current rental rates for similar propert the ' Annual Guaranteed Rent shall be subject to adjustment by the CITY ac its' Minimum anniversary date of this lease every five (5) years, upon the giving of ~~o less thetlon on the days' advance written notice to LESSEE of such adjustment. In the ever.i the ~ n sixty (60) ESSEE is in 'INAL -l0- disagreement as to the amount of adjustment proposed by the CITY the LESSEE shall h the right to require that such adjustment be determined, by independent a raisal ave that in such event the amount of adjustment shall not exceed ten (lp) PP ' Provided percent more than the the Minimum Annual Guaranteed Rent in effect prior to such adjustment. The LESSE notity the CITY, in writing, that it desires to submit the uest' E must q ion of adjustment to independent appraisal no later than thirty (30) days following receipt of the CITY'S no adjustment in the the Minimum Annual Guaranteed Rent. The •CITY shall lice of then submit to LESSEE the names of ten (10) ualified rofessional M.A.I. a q p ppraisers in Dade County, Florida. No later than ten (!0) days following receipt of such list of ap caisers shall. notify the CITY of its choice of one (1) such appraiser, who wil P 'LESSEE l then be requested to determine the question of adjustment of the Minimum Annual Guaranteed Rent with' !lmlts set forth above, All costs of such appraisal shall be borne b the ~ in the amount of adjustment ro y y LESSEE if the P Posed b the CITY is accepted by the appraiser, otherwise by `:ITY. 3. No Effect for Termination as to Areas 3 and 4 The Base Rent specified in this Article II shall not be affected solely by virtue of the CITY'S termination, if any, of the tenancy at will for Areas 3 ane 4 ~ nor 3nv oth of LESSEE hereunder). er obligation r1NAL ARTICLE lI[ ~• GROSS RECEIPTS 1• Grou Receipts Defined The term "Gross Receipts" is defined to mean: (i) the entire arnount of the ri charged, whether whop or P ce Y partially in cash or on credit (and in the case of sales on credit whether or not payment be actually made therefor), or otherwise, for ail f uel, goods, wares, merchandise and chattels of any kind, sold, leased, licensed or delivered, and all char es for services sold or g performed in, at, upon or from any part of or through the use of the Marina Site or any part thereof by LESSEE or 'by means of any mechanical or other vendin d (other than g ev,ce pay telephones and those soft drink and other similar vending devices operated primarily for the convenience of LESSEE'S employees);. (ii) the recei is from tred or received in the Marina Site , by telephone, mail h P ail orders Dose-to-house or other canvassing by personnel operating from, reporting to or under the supervision of an employee, agent or representative located at or operating. out of the 1~1a; ina Sire or which LESSEE, in the normal and customary course of its operations, would credit or attribute , its business on the Marina Site, or by other means, whether or not filled else where- to deposits received and not refunded to the purchaser in connection ~v; - ~ ' (rri) all th any transaction: {iv) a!! Gross Receipts, including rents, received by LESSEE resulting from oce.upanc or .use the Marina Site or an y of Y part thereof by any independent, third-party sublessee, concessionaire or parties operating through any sublease or concessionaire- and v Receipts received by LESSEE resulting from occupancy or use oft ~ {. ~ all Gross he Marina Site which are neither included in nor excluded from Gross Receipts by ,ether provisions of this Lease but without any duplication, ' F~..AL -12- ~. I2ems Excluded Gross Receipts shall not include, or if included, there shall be deducted (with out interest thereon and only to the extent they have been included), as the ease may be, (i) the net amount of cash or credit refunds made upon Cross Receipts, where the merchandise sold or some part of it is returned by the purchaser to and accepted by LESSEE (but not exceeding in any instance the selling price of the item in question); (ii) the amount of any sales tax, use tax or retail excise tax which is imposed by any duly constituted governmental authority directly on sales and which is both added to the selling price (or absorbed therein) and is paid to the taxing authority by LESSEE (but not any vendor, sublessee or concessionaire of LESSEE); (iii) returns of merchandise to shippers, suppliers or manufacturers; (iv) service, finance and interest charges imposed by LESSEE and paid by customers for extension of credit on sales by LESSEE where such charges are not included in the sales price of the items or services sold; (v) bad debts (on anon-cumulative basis) to the tent of four percent {4916) of LESSEE'S total Gross Receipts in any Lease Year (vi) income from LESSEE'S provision, without profit, of telephone and cable Lelevision services to persons utilizing the Marina Site, so long as this exclusion is susceptable to audit according to generally accepted accounting principles; and (vii) insurance proceeds due to LESSEE. No franchise or capital stock tax and no income or similar tax based upon income or profits as such, no personal property tax, and no applicable Florida State Sales and Use Tax on rental payments due to CITY from LESSEE shall be deducted from Gross Receipts. 3. Tax Returns If LESSEE's Gross Receipts (as defined in paragraphs 1 and 2 of this Article) are required to be reported on any governmental tax or other return, and the Gross Receipts as so reported on any return or as determined by audit thereof shall exceed the Gross Receipts ;~ r'INAL _ ~ 3- ;s reported to the CITY hereunder, then the Gross Receipts snail, for the purpose of this ease, be deemed to be the highest amount so reported or so determined by audit. ARTICLE IV tcECORDS AUDIT ANNUAL DEPOSIT NO PARTNERSHIP 1 • Records LESSEE agrees to prepare true and complete records and accounts of all Gross RecelPts for each Lease Year, in accordance with generally accepted accounting principles consistently followed, itemized as to each of the five (5) categories for which a separate percentage rental rate is established pursuant to Article II, Paragraph 2 (e)(a) _ 2{B)(ej, Bch records and accounts shall include all sales slips (which shall be serially numbered), cash register tapes, bank statements or duplicate. deposit slips, and such..other sales records as an Independent certified public accountant would need to examine in order to •certify LESSEE'S annual statement of Gross Receipts pursuant to generally accepted auditin standards. The LESSEE must rovide g P point-of-sale machines or such other :cash registers or accounting control equipment deemed reasonably necessary and consented to by the City Manager for the proper control of cash and payments. Al! records and accounts for any Lease Year shall be maintained at the Adarina Site or (at LESSEE's option) at LESSEE'S main accounting o#fice, if in Dade County, Florida, for a period of twenty-#our (2k) months after the end of such Lease Year. CITY and its representatives shall have the right, at any reasonable time and under reasonable circumstances, to examine such records and accounts. For the same period of time LESSEE shall also retain copies of all sales and occupation tax - ! k- returns covering its operations on the Marina Site, and any other governmental tax or other return which shows LESSEE's sales therein, and shall upon demand deliver a photo ra hic g P copy thereof to CITY. 2. Annual Reoort On or before the fsfteenth (1Sth) day of April following the close of each Lease Year and following the expiration of the Initial Term or any extension thereof (also on or before that same date), LESSEE shall deliver or shall cause to be delivered to CITY at the place then ilxed for the payment of rent a statement prepared and certified to by an independent certified public accountant employed at LESSEE'S.cost showing Gross Receipts during the preceding Lease Year. Said accountant shall certify that he made a complete examination of the books, state sales lax returns, and federal income tax returns of LESSEE;. and that the statement is prepared in accordance with generally accepted accounting principles and fairly presents the Gross Receipts of LESSEE for the period indicated therein. With each Yearly statement LESSEE shall pay to CITY the unpaid balance of any Annual Percentage Rent, if any, payable for the preceding year and CITY shall refund any overpayments. If LESSEE omits or causes to be omitted to be prepared and delivered promptly any such annual report or statement, CITY may elect to exercise upon fifteen {15) days written notice to LESSEE either or both of the following remedies: A. To treat any such omission continuing after said fifteen (1S) days notice as a breach under this lease entitling CITY, without further notice, to exercise any one or more of the remedies described in Article XX below, or B. To make an audit pursuant to the provisions of Paragraph 3 of this Article. ~:. FINAL -1 S- 3. Au ilt CITY may at any reasonable time and under reasonable circumstances wi ' eighteen {l8) months after the end of an Lease Year cause thin CITY'S audltoro os ~ y an audit to be made by L~SEE s books and records relating to LESSEE'S Gross Receipts for such Lease Year. Ii such audit shall disclose that LESSEE has understated ReoelPts by 3~6 or snore for such Lease year., LESSEE shall, upon demand Gross ~ seasonable cost of such audit in addition to any deficiency in Annual pe to Cp'y Rent, which deficiency shall be rcentage exantini Payable rn any event. If CITY'S auditors, after ~ such records and accounts are unable to verify the Gross Receipts for such Lease Year' or the separate fallure ~ Percentage rates applicable thereto by reason of LESSEE'S ProPer1Y Prepare, keep or make available the same, thin LESSEE shall, upon ~~' and without rmpalring CITY'S other remedies, pay the reasonable cost of audit. such ~• No Partnership Relationship Computation of the Percentage rents specified herein shall be made s ~~ to es~h L eParately with ease Year of the term hereof, it being understood and agreed that the gross 'aoelpts of any Lease Yeas and the percentage rent due thereon, shall have no bearin connection with g on, or ' ~ gross receipts of any other Lease Year of the term hereof. It is further understood and agreed that CITY shall in no event be construed or held to be a associate of LESSEE in the partner or conduct of LESSEE'S business, nor shall CITE' be liable for any debts Incurred by LESSEE in 'the conduct of LESSEE'S business, bur if ~ is unders a6r~ that the relationship is and at all times shall remain that of lessor an LOOd and and LESSEE adcnowled a and ag d lessee. CITY 8 ree that neither shall be subject to any implied obligations by reason of the fact that this lease provides for the payment of percenta a rent. 8 _..AL ~ <: -16- ARTICLE V TAXES ASSESSMENTS AND UTILITIES !• Lessee to Pay LESSEE agrees to and shall . pay before delinquency all taxes and assessments of any kind assessed or levied upon LESSEE or the Marina Site by reason of this le ase or on any btdldings, mays, oc other Improvements of any nature wha tsoever erected, installed or m~ta~ned by LESSEE or by reason of the business or other activities of LESSEE ~~p,~,n~on with upon or in the Marina Slte. LESSEE shall also pay any fees imposed by law foc licenses or permits foc any business ~ activities of LESSEE upon the Marina Site or under this lease, and shall PaY before delinquency any and al! charges for utilities at or on the M ' 't'he applicable Florida State Sales and Use Tax on rental payments shah arena Site. - 1 be added to the 'SSEE's Base Rent and forwarded to the CITY as a part of said payment. 2• Procedure if Taxes Assessed Notwithstanding, the parties agree chat the operation of the Marina Site and operations convenient or necessary therefore, are for public purposes and # those valorem taxes should be assessed by the Dade County Tax A rais ', herefore, no ad pp er. If, however, taxes are assessed by said property appraiser, the parties agree: A• In the event that the property tax raiser ass such portion or portions of the lands subject t ethes ,agreement oasaaren n the Control of concessionaires ' concessionaires are situated (°r sublessees), or upon which - in the performance of any concession agreement hereunder, the parties agree that at the request of and at the expense o1 any such concessionaires, the parties may defend against such assessment on behalf of such concessionaires. The extent of such defense by the parties shall be as reasonabl r . Y equested by such concessionaires; -17- provided further, however, that at all times the parties have first determined that said concessionaires r the joinder in such defense, will full andtcom~lcetelefense or requesting ~xPenses of such defense as may be incurred P Y PaY the costs and them including cot~t costs and reasonable attorn ~ parties or either of Parties or either of ~ f ees incurred by the them m such defense; and provided, further, that the said o~~ requestuig such a contest of completely indemnify and save the parties jointly ~das~essment fully and from any .~ all claims, charges or indebt parately harmless conduct of such defense and contest. ~~ resulting from the agreements entered Into between LESSEE and ~iin~cession (and sublease) aPPi'oPi'iate 1~6~Se incorporate the terms parties shall through covenant. and conditions of this 8. In the event taxes ace assessed against the o ~ Piers. moorL~gs and any other properties devoted to ma i~na uses and upon which ~ marina is located as well as properties upon which the marina administrative facilities are located, as well as all improvements thereto, olio by the property tax appraiser, the parties hereby agree as a. Both parties agree to cooperate fully with each other to contest and defend against said assessment. Said contest and defense shall, at the option of the parties or either of them, be conducted at the administrative level, i.e. before the tax appraiser, the tau appraisal adjustment board, and any successor organization, or before the courts, to such extent and to such level as LESSEE or the CITY shall determine. b• The costs and expenses including reasonable attorneys' fees which arc incurred by the parties as well as such taxes which have accrued and been paid during the course of the litigation contesting said taxes, shall be paid solely by LESSEE; and LESSEE shall fully and completely indemnify and save the CITY harmless from any and all claims, charges or indebtedness resulting from the, conduct of such defense and contest. ARTICLE VI -~••-r• L•~-c,vJCJ I'1rvu PERMITS AND CHALLENGE TO LEA 1. Marina Licenses and permits The parties to this Agreement acknowledge that construction, development and operations on Area 2 may be subject to review and approval by the Corps of Engineers ~~-L ~ `` -IS- (Permit 738-lQ22), the State Department of Environments! Regulation (Permit No. 13-39-1462MM), the Board of Trustees of the`Internal Improvement T and such other g 8 y rust Fund, overnmental a envies as ma have interests and regulatory control over development and operations on Area 2. By execution of this Lease Agreement certifies that it has obtained, in conjunction with the Miami Beach Redevel 'CITY opment Agency, all Ucenses and permits necessary for the development and operations on the Marina Site evidenced by Exhibit C attached hereto. If any such licenses and permits necessa f ' as development and operations on the Marina Site are subs ~'~' or the , equent~ to execution of this Lease Agreement, withdrawn (causing LESSEE to lose its right to operate the wet slips on Area 2 by any governmental agency (unless due to the fault or negligence of LESSEE), LESSEE ma as Its sole and exclusive remedy elect to treat y upon sixty (60) days notice to the CITY, such withdrawal as a breach of this Lease Agreement entitling LESSEE (1) to retucn of the Fif Thousand Dollars ($30,000) Initial Lump Sum Payment (but no interest thereon ~ ~ provided in ArL1Ue II, Paragraph 1 hereof; (2) to reimbursement, upon termination of this Lease Agreement, for LESSEE'S total cost of construction to the extent of one-three hundred sixtieth (1/360th) of the LESSEE'S total cost of construction plus interest thereon at the rate specified in Article XXXVIII hereof plus net losses or minus net profits to LESSEE (with both said interest and said net losses or profits to be computed for the period commencing on the date of execution of this lease and ending upon the date this lease is terminated as provided in this Article) multiplied by the number of months remaining in the Initial Term; and (3) to retucn of its Security Deposit as provided in Article VIII hereof. Upon return of such entitlements, this lease and the term hereby demised and all rights and obligations of CITY and LESSEE under this lease shall expire and terminate as to the Marina Site. INAL ~ " -19- Por purposes of this Article: A•~ "'Total construction costs" shall mean ail reasonable cosu and ex by reason of this lease and actually paid by L• ESSEE (excludin penses incurred LESSEE would have been obligated to pay to , ----~ such COSu which in any event, fwd this lease not been executedor entitles other than CITY, In this para~•aph A, clause ~ xxv) limited to: Y parties except as set forth physical Plant; (11) furniture, fixtures o (i) building and equipping the ro perating equipment and other personal p PN'tYf (~) demolition and site preparation; (iv) sheet llin and ri ra ~~P~Si (vu the baywalk{vii) the dry storage facility P(viil) piers, catwalks 1~~ (ix~ showers and toilets; (x) signage and graphics: (xi) the dockmaster tower structure; (xiij parkingi (xiii) legal fees, including but not limited to those relating to °b~~8 financing, termination of this lease and investor's t (~ f ~8 tom, recording ices, intangible taxes and documen ~ Y' Plana and specifications; (xxi) interest on tart stamps, (xx) engineering ~Ice~ (xxiii) permits and' j~~~' (xiii) architectural and Guaranteed Rent (to the extent said rent exceeds(p~i~Minie Rent); (xxv) the commitment fee of One Hundred and ive housand Dollars103,000) paid by LESSEE to Heller Mortgage Company, and then only to the extent LESSEE does not receive rciund thereof; and (xxvi) other such direct, out-of-pocket organjzatio~ coats (excluding salaries paid to any general or limited partner). g• "Net losses" shall mean operating losses (not covered by CITY's obligations pursuant to paragraph A immediately above) in excess of operat~'-g profits. "Net profits' shall mean operating profits in excess of CITY's obligations Pursuant to paragraph A immed~telmg lose (not covered by extent of the Interest as calculated in accordance with th~isvArticle and A tide XXXYIII. C• LESSEE, contemporaneous with payment of the entitlement s ecified ' Article, shall convey and transfer the title to and/or interest of LESSEE1in the Items listed in paragraph A immediately above to CITY. 2• Challenge to Lease The CITY further agrees that LESSEE shall have the same sole and exclusive remedy provided in paragaph 1 of this Article VI in the event that this lease cannot be performed in accordance with Iu terms (unless due to the fault or negligence of LESSEE) by reason of certain lltlgatlon styled Waterfront Deve_ 1_ o_ p_ S, Incorporated v. Cit of Miami Beach, et.al., Case No. 83-20332, 11th Judicial Circuit, Dade County. NAL << -20- ARTICLE VII CONSTRUCTION AND IMPROVEMENTS i. Construction Schedule On or before fifteen (I3) days after the Date of Possession or after iss uance of a uilding permit toc Area 2, whichever is later, LESSEE shall commence const upon Area 2 and dill entl ruction in or 8 Y Proceed to substantial construction on Area 2 by September 1, 1983 and to completion of development on the Marina Site (in accordance wi of the LESSEE in res th the proposal Pax ~ CI'fl' S Request for Proposes, Bid No. 54-83, copies of which ace on file at the Office of the purchasing Agent, which proposal and R uest are by this Lease Agreement made a ~ for Proposal part hereof). If by August l fl, 1983 LESSEE has eommenc~ ~ y"o~ upon Area 2, or, if by August 2fl, 1983 the stage of work u n Are got to such degree that substantial construction can be reached in the no ~ a 2 is events by September 1, 1983, then, in either case, CITY shall have rural course of own forces or others en ed b the right to utilize its 6a8 y CITY, to cause substantial construction to be reached by September 1, 1983, at LESSEE'S cost (unless either event is ca negligence, in which case the foregoing shall be at CITY used by CITY s own fault or shall preclude CITY from electin y s cost). Nothing contained herein g, at an time, to utilize its own forces or others engaged by CITY to cause substantial construction to be reached by September 1 19 cost; provided, however, CITY shall have no obligation ro do so. 83, at CITY s All work in accordance with said proposal shall be substantially completed b Ma unless the Date of Possession or the issuance of a buildin y y 3~~ 1984, JWY 13, 1983, In which event the completion date shall b permit for Area 2 shall be after e extended by the number of days r qL ~~ -21- between Juiy 1 S, 1983 and the Date of Possession or the :issuance of a building permit for Area 2, whichever is later. If LESSEE, prior to said ;completion date, directs a written request to the City Manager seeking an extension of time for the completion- of construction, the City Manager may consent to such extension, which consent shall not be unreasonably withheld. 2• Plan Approval No construction of an ' y improvement upon the Marina Site shall commence without the prior approval of the City Manager of the City of Miami Beach, as evidenced in writin and g~ ail such construction shall be in accordance with plans and specifications (i) which must be submitted and approved by the City Manager in writing ~ prior to the commencement of any such construction, (ii) which must contain a designation of the architects, engineers, contractors and materialmen to be used by LESSEE, and (iii) which must conform to the Request for Proposal, Bid No. 54-83, (including the requirement that removal of the fuel tanks will be the responsibility of the LESSEE at the time the developer of Area 4 needs the site) and to LESSEE'S proposal in response thereto. Except as to the use of the CITY'S plans and specifications for construction on Area 2, LESSEE shall obtain ail requisite approvals of public authorities (including approvals necessitated by LESSEE'S modifications of CITY'S plans)--other than approval by the Corps of Engineers (Permit 738-1022), the State Department of Environmental Regulation (Permit No. 13-39-1462Mh1), the Board of Trustees of the Internal Improvement Trust Fund and Dade County (DERM Permit)--and provide satisfactory evidence thereof to the CITY. The parties mutually agree to use their best efforts to assist in the obtaining ~of requisite approvals from any and ail public authorities. The parties hereto shall promptly apply for and use due diligence to obtain the requisite approvals previously mentioned and comply with local building code requirements .VAL -22- and promptly rnake~ all changes on plans and drawings that may be requested by said ubli authorities .and otherwise use due diligence to obtain the requisite a royals. p c shall bear the costs, fees and expenses, and only such costs fees pp The CITY ~ and expenses, for obtaining and maintaining approves of the plans and specifications of CITY existing on the date execution of this lease for construction on Area 2, otherwise by LESSEE. of 3• Qualm ty of Construction The quality of construction and development of the Marina Site shall be equal to or bitter than that of other public, privately financed, first-class marinas operated in the State of Florida. LESSEE shall be required to meet the development guidelines, in preparation of its plans and specifications, set forth in the Exhibits to the Request for Proposal, Bid No. 34-83. Plans and specifications for construction and development on the Marina Site shall be delivered to the City Manager by LESSEE with due diligence; and review and a royal b he City Manager shall not be unreasonably withheld or delayed. (J on co pp y P mpletion of construction, the City Manager shall certify, in writing, as to whether or not said construction was done in accordance with said plans and specifications. 4- Changes in Plans and Specifications If, after construction .has begun, LESSEE desires to make material than es in or material additions to, plans, drawings and specifications, LESSEE shall furnish thg ' em to the City Manager for his approval, which approval shall not be unreasonably withheld or Bela ed. Y s. Procedures for Approval or Disapproval In the event any consent or approval is required by LESSEE from the CITY or its agents designees or employees, including the City Mana er, g pursuant to the terms of this Article, ;. . _,~AL -23- and such consent. or approval has not been given within fourteen (14) days followin submission of • • g Pins and specifications by LESSEE, then • in such event said consent or approval, as the case may be, shall be deemed to have been given. In .the event the Cit M er disa y ~a8 pproves oc qualifies approval of said plans or specifications within said fourteen (14) day period, said disapproval or qualification shall be in writing setting forth the s ecif' reasons therefor. LESSEE will revise said plans and specifications in accordan p is ce with the reasons sit forth within thirty (30) days of receipt of the reasons for disapproval or qualification. It is expressly uliderstood by the parties that time is of the essence in meeting the construction schedule specified in Paragraph 1 above; and, further, than no details, changes or additions shall be made to the plans and specifications for Area 2 which would delay substantial construction for Area 2 beyond September 1, 1983 or otherwise cause any governmental agency to revoke or suspend any license or permit for development and operations on Area 2. 6. Rirtht of Inspection During. construction on the Marina Site, CITY, and any architect, en ineer or oth g er representative it may select to act for it, may inspect (but shall have no duty or ~5ligation to inspect) the work being performed upon the Marina Site and the materials being used in, or to be used in the performance of such work. If during construction or. the .t9arina Site, CITY, its architect, engineer or other representative, shall reasonably determine that an materials do not substantially conform to the approved specifications or that construction iy s not substantially in accord with said approved plans, specifications or drawings, notice thereof may be given by CITY to LESSEE specifying the nature of the deficiency or defect or omission. Upon the receipt of any such notice, LESSEE shall promptly take such steps as may be necessary to correct such defect, deficiency or omission. :AL ~~ -24- 7. Construction at LESSEE's Sole Ex erase LESSEE, during the construction .and. upon the completion of development of the Marna Site, at its sole cost and expense, shall construct, furnish, develop, and a ui or s cause to be so furnished and q P hall equipped a!1 improvements of whatever nature and description on the Marina Site together with all the furnishings, facilities and equipment necessar for the operation of a first-class marina, and in accordance with plans and s e y p cifications approved by the City Manager. 8. Improvements to be Property of LESSF E Durine Term For and during the term of this lease ail improvements and related facilities which may be constructed an the Marina Site by LESSEE and all additions, alterations and improvements. thereto, or replacements thereof and appurtenant fixtures, machiner and equipment to be installed therein, and all items of personal property used in o er y' management or maintenance on the Marina Site shall belong to and be the P ations, property of LESSEE. Upon the expiration of this lease at the end of its Initial Term ur extension thereof, or upon sooner termination pursuant to the provisions hereof, said improvements and related facilities shall become the property of CITY and bP surrendered in accordance with the provisions of Article XXIX hereof and LESSEE shall, if CITY so requires, ;ive CITY an appropriate deed to the Marina Site, including all improvements and facilities thereon (excluding LESSEE'S movable personal property unless there is an uncured Event of Defa under the provisions of Article XX hereof) and shall warrant and defend title to ult said Marina Site to be free of all encumbrances and of all rights and Maims of Lessee and ersons claiming by, through or under LESSEE or arising out ~f the failure of LESSEE ~to erform. ' covenants hereunder to the extent a P its ppropriate under the laws of this state. SAL '~ -25- 9. !ndemnific~t:on of CiT'{ [t is .understood and agreed that LESSEE shall have control a Marina Site and that CITY shall have no liabilities, obli ations o nd possession of the g r respons~bllities (other than any measures the CITY may, in its sole discretion, take to enforce the terms of this Lease Agreement) with respect thereto, or with respect to any plans and specifications referred in this Lease Agreement or with respect to any and all other plans, sho dr to p awings and spectfications relating to construction and development of the Marina Site (notwithstandin their approval, if an b g Y, Y CITY). LESSEE covenants and agrees to protect, indemnify, save and keep harmless .CITY from and against any and ail claims of every nature name and description whatsoever, directly or indirectly, arising out of said plans and specification and ~Y and all other plans, shop drawings and specifications relating to or connected w' s, ith construction and development on the Marina Site (except as to CITY's plans and specifications for Arta 2 and then only to the extent the same are not modified by LESSEE). l0. Cost of Improvements LESSEE shall, as partial consideration and as 3 condition of this Lease A ree make an investment for the facilities and improvements to be constructed or fug • ment, Wished as described in LESSEE'S proposal in the approximate amount of Seven •'blillion Eight Hundred Thousand Dollars ($7,800,000). It is expressly understood by the parties that said investment shall be in addition to the cost of improvements by CITY approximating Three Million Five Hundred Thousand Dollars ($3,500,000) completed prior to execution of this Lease Agreement. Within sixty (60) days following completion of any substantial improvement on _ the Marina Stte, LESSEE shall furnish CIT1` an itemized statement of the actual construction cost of such improvements and facilities. The statement of cost shall be sworn to, certified to and signed by LESSEE or his responsible agent under penalty of perjury. F .AL ..'` -26- 11. Liens LESSEE agrees that it will at all times save CITY free and harmless and indemnify it against all claims for labor or materials in connection with irnprovPments, repairs, or alterations on the Marina Site, and the costs of defending against such claims, including reasonable attorneys' fees. In the event that any lien or levy of any nature whatsoever is filed against the Marina Site or the leasehold interests of the LESSEE therein, the LESSEE shall, upon written request of CITY, deposit with CITY a bond conditioned for the payment in full of all claims upon which said lien or levy has been filed (to the extent that said lien or levy, in the reasonable judgment of the City Manager, is not covered by another bond to which the lien or levy attaches). Said bond shall be acknowledged by LESSEE as principal and by a corporation, licensed by the State of Florida to transact the business of a fidelity and surety insurance company, as surety. CITY shall have the right to declare this lease in default in the event the bond required by this subparagraph has not been deposited with the CITY within ten (10) days after written request therefore has been delivered to the LESSEE. Said bond shall also name the Leasehold Mortgagee as its interest shall appear. 12. Performance Bond No major construction shall be commenced on the .Marina .Site by LESSEE until LESSEE has secured and submitted to CITY payment and performa~ice bonds in the amount of one hundred and ten percent (11051), or such other ,percentage required by law, of the total construction costs of improvements to be constructed by LESSEE. CITY will accept the performance and labor and materials bonds supplied by LESSEE'S contractor or subcontractors if allowed by law. All bonds must be issued by a company reasonabl Y acceptable to CITY (including a company approved by *.he original mortgagee) and qualified to do. business in the State of Florida and be in the risuul form acc°ptable to the City FINAL -27- Attorney for CITY and in full conformance with applicable statutory r~ ~quirements. Said yond shall also name the Leasehold Mortgagee as its interest shall appear. ARTICLE VIII SECURITY DEPOSIT LESSEE, prior to the Date of Possession will deposit with the CITY the sum o Thousand Dollars ($50,000.00) (the "Security Deposit"). The 5e'curit pe f Fifty Y posit shall be held by CITY, as security for the faithful performance by LESSEE of any and all of th covenants and conditions of this lease by LESSEE to be performed. An int a terms, Secuclty Deposit shall be deemed to become a part of the Securit De y Brest on the Y posit itself. The Security Deposit shall be invested together with other CITY .funds and th ball add the best interest earned by the CITY to the Security De osit at e CITY +. use Year. LESSEE shall have no right to challen e CITY's p the end of each CITY's mistakes or bad faith. The CITY shall fur 8 Interest earned, except for Wish LESSEE with a statement of the Interest earned at the end of the first Lease Year which sum shall be added ro t Security Deposit and thereafter be considered the Security De osit. he original p This Security Deposit shall then be similarly invested and interest earned added annually to determine th De sit. a Security Po The effect of compounding shall cease when the resulting Security Deposit reache Two Hundred and Fifty Thousand Dollars ($50,000) and thereafter the interest s the CITY shall be paid to LESSEE annually thereafter within thirty (30) da s of earned by each Lease Year. Alternatively, the CITY may, at its option, return t y ter the end of he original Security Deposit of Fifty Thousand Dollars ($50,000) to LESSEE at any time prior to two 2 ()years ' :. -2g- after completion of construction pursuant to the provisions of Article VII hereof), CITY exercises this option, LESSEE shall have no right to recei t of an in if the P y terest thereon, If at any time during the term hereof, any Base Rent, oc additional sums or char e payable by LESSEE shall be overdue, or if LESSEE fails to perform any of the other t g s covenants or conditions to be erms, performed by LESSEE, then CITY, at its option, and upon the .giving of notice as required by Article XX hereof may appropriate and apply all or an portion of the Securi D y ~ emit to the payment of any such overdue Base Rent, or additional wm yr charge and to the compensation of CITY for loss or damage sustained b CITY a breach by LESSEE, or cure by CITY of said breach, as aforesaid y due to ,without prejudice to CITY's other remedies. Should aU or any part of the Security Deposit be duly appro riated and applied by CITY as provided above, ihen LESSEE shall u p pop demand of CITY, forthwith remit to CITY a sufficient amount ~ cash to restore the same to the original sum deposited plus Interest accrued thereon. Should LESSEE comply with all the terms, covenants and conditions of this Lease binding. on LESSEE, the Security Deposit shall be returned in full to LESSEE at the expiration of the .term; provided, however, CITY (and in the case of an Y subsequent conveyances or transfers, the then grantor or transferor) may deliver the funds deposited hereunder to the purchaser of the interest of CITY (or the then raptor or transferor) in the Marina Site in the event that such interest ,is sold, and g thereupon CITY (or the then grantor or transferor) shall be discharged from any and all liabilit and obli ations under this lease y g and from any further liability with respect to such Security Deposit, provided the then grantor or transferor assumes said liability. In the event CITY conveys or transfers the .Marina Site, or any part thereof, during the term hereof to any party whose status is such that the tax exempt status of the Marina Site FINAL ~. -29- is rescinded or withdrawn, then any and all subsequent owners shall be responsible and shall pay, when due, any and all taxes and assessments on al! real estate, buildings, machines or other improvements upon or in connection with the Marina Site, failing which, LESSEE ma Y pay the same and deduct the amounts so paid, plus interest thereon at the rate set forth in Article XXXVIII until such deduction is made, from any amounts due under this lease; and, provided furthtr that any subsequent owner, other than another governmental agency, shall place the Security 'deposit in escrow and the escrow agent shall be required to invest the Security Deposit as dicected by LESSEE. ARTICLE IX ENCUMBRANCE OR ASSIGNMENT OF LEASEHOLD 1• Leasehold Mort aop The City Manager, by prior consent has agreed 'to the encumbrance of the Leasehold Interest of LESSEE including the improvements thereon and all personal property of the LESSEE, by Walter E. Heller do Company Southeast Inc. d/bIa Heller Mortgage Compan to assure the payment of the promisory note of LESSEE, said encumbrance to be substanti-~ ally in the form of Exhibit D attached hereto. LESSEE understands and agrees that it cannot secondarily encumber the lease, leasehold estate and the improvements thereon by ,~ mortgage or other security instrument without first obtaining the prior written consent of the City Manager in each instance; provided that Heiler Mortgage Company may further encumber the leasehold interest of LESSEE, upon providing permanent financing to LESSEE, without first having obtained said consent. If any mortgage or other security instrument that encumbers the lease, leasehold estate and the improvements thereon is entered into b Y FINAL ~ ; -30- LESSEE without the City Manager's prior written consent, the CITY shall have the right to dectace this lease in default pursuant to the provisions of Article XX hereof. If a mortgage or other security instrument which has received said consent should at any time be In default, before LESSEE'S interests under this Lease Agreement may be sold as a part of any foreclosure or trustee sale or be assigned in lieu of foreclosure, the prior written consent of the City Manager shall be obtained in each instance. However, an Original Mort a ee of the most a e ma g g S g~ y purchase the LESSEE s interest at a foreclosure sate or accept an assignment of the lease in lieu of foreclosure, without the requirement of any further consent on the part of the City Manager, provided said party, as a condition pcecedent, agrees in writing to operate the Marina Site subject to each and every obligation of LESSEE expressed in this lease. Provided that an Original Mortgagee may at any time, at its option, be relieved of al! liability under this lease by giving the City Manager ninety (90) days advance written notice of its intention to vacate and surrender the Marina Site and relinquish all of its rights pursuant to this lease. Provided, further, and notwithstanding any other provision of the Lease Agreement, if an Original Mortgagee in the exercise of any of Its rights hereinbefore stated, shall take possession of the :Marina Site or become subrogated to the rights of LESSEE, then the rent payable by said Original Mortgagee each year shall be limited to One Hundred Sixty Thousand Dollars ($160,000). Base Rent from the Marina Site in excess of One Hundred Sixty Thousand Dollars ($160,000) per year shall first be applied to reimburse the Original Mortgagee for all costs and expenses incurred as a result of the default by. the LESSEE, plus all sums currently due pursuant to the terms of the Note and Mortgage Agreement between LESSEE and Original Mortgagee. All Base Rent in excess of One Hundred Sixty Thousand Dollars ($160,000) per year, other than the amounts subordinated to the payments due an Original Mortgagee, shall be remitted to the City .. =INAL -31- •toward Base Rent. At su, time as an Original Mortgagee, its ,;ignees, designees or a new, substituted lessee shall assume this lease as provided herein, rental payments shall revert to those pcovided for in Article II; provided, the term "designee" shat! not be deemed to include ~Y person, firm, or entity having a management agreement (consented to by the City Manager) with Heller Mortgage Company while Heller Mortgage Company is in possession of the Marina Site pursuant to the provisions of this article. Provided further that the ri hts of Bald Original Mortgagee shall not alter or affect the obligations of LESSEE u g p rsuant to this lase. It is expressly understood that both the CITY and any Original Mortgagee in possession. as pcovided above, will use their best efforts to,secure a new tenant, acceptable to both parties, who .will assume all the terms and conditions of this lease and succeed to al! the rights and obligations of the LESSEE in default. Furthermore, before any said Original Mortgagee, or any other consented-to assignee or purchaser may subsequently assign or transfer said mortgage or security instrument or assign or sublet any of the leasehold or LESSEE's interest, it shall obtain the City Manager's prior express written consent. If LESSEE shall have encumbered its leasehold estate create' under this Lease by a Leasehold Mortgage, and the Leasehold Mortgagee shall notify CITY, in writing, of the creation thereof, then CITY, at the same time as it shall give notice of a breach of this Lease to LESSEE shall, in addition, give notice thereof also to the Leasehold Mortgagee, and no such notice shall be deemed to have been given to LESSEi= unless and until a copy thereof shall have been so given to such Leasehold Mortgagee. CITY agrees that said Leasehold Mortgagee {its agents, receivers, and anyone claiming under such Leasehold. 1ortgagee) upon -- the receipt of any such notice of default shall have the immediate right or option to enter into and upon the Marina Site and take possession thereof and to remedy any default within the grace period allowed LESSEE for_ rectification thereof as set out in .yr:icle XX; it bein mderstood that (i) a breach of this~~ g Lease which canner be cured by the payrnerit of money FINAL shall be deemed to have been rectified witnin the period of grace allowed sa• Mortgagee by the terms hereof if rectification thereof shall be id Leasehold before the end thereof, and such correction thereafter s commenced in good faith halt be prosecuted with due diligence to completion; (ii) if the Leasehold ;Mortgagee cannot reasonabl take required to cur such default without been in y the action g possession of the Marina Site, the time within which the Leasehold Mortgagee has to rectify such default, as hereinabove set out deemed extended to include the period of timer ~ shall be equired by it to obtain such possession (including possession by a receiver) with due diligence; and (iii) the time within Leasehold Mortgagee shall be required to obtain possession of the M which such arena Site (including possession by a receiver) shall be deemed extended b y the number of days of delay occasioned by judicial restrictions against the initiation of proceedings to obtain s possession .or occasioned b ~ uch Y y other circumstances beyond such Leasehold Ylortgagee's reasonable control. A1! payments so made and all thins so done and g performed by said Leasehold Mortgagee within the grace period allowed such Leasehold 'Mortgagee for rectifi LESSEE'S bceach, as set forth in the revious cation of P paragraph, shall be as effective to prevent a forfeiture of the rights of LESSEE under this Lease as the same would have been if do performed by LESSEE instead of by said Leashold Mortgagee. Any such Leasehold • ne and so executed by LESSEE may be so conditioned as to provide, as betty Mortgage Mortgagee and LESSEE, that said Leasehold 'Mortgagee, on makin een said Leasehold such default or defaults on the part of LESSEE, shall thereb g good and rectifying any obligations (except as provided herein) of LESSEE under assume any and all rights and Mortgagee shall be considered or become liable to CITY as this Lease. No Leasehold an assignee of this Lease, or otherwise, until such time as said Leasehold Mortgagee shall by foreclosure or oth er FINAL ~ ` -33- aopropriate proceedings in the nature thereof, or as a result of any other action or remedy provided for by such Leasehold Mortgage, acquire the rights, interest and estate of LESSEE under this lease. Upon approya! by prior express written consent of the City Manager of an assignment of the Leasehold estate hereunder by any Leasehold .1AortRagee who succeeds to LESSEE'S Interest hereunder, such Leasehold Mortgagee shall automatically be relieved of all liability under this lease. Without limiting any of the rights granted a Leasehold Mortgagee, as hereinabove set out, it is agreed that if this lease is terminated by reason of the happening of any Event of Default specified in Article XX hereof and CITY obtains or is entitled to obtain possession of the Marina site, then CITY shall give thirty (30) days written notice thereof to such Leasehold Mortgagee, and CITY does hereby agree, at the option of such Leasehold Mortgagee, to enter into a new lease with such Leasehold itilortgagee or an assignee, or 'eslgnee approved by tfie City Manager for the balance of the term remaining as of the date of such termination, on the same terms, covenants and conditions as are set out in this lease, provided such Leasehold Mortgagee advised CITY, within thirty (30) days after service by CITY of such notice of termination, that it desires to enter into said new lease and will pay all delinquent rents and other sums due under this lease upon the execution of said new lease, and will commence rectification of all other prior defaults of LESSEE under this lease within thirty (30) days after 'the execution of said new lease, and will proceed with due diligence to complete the same. In the event of the election by said Leasehold 11Aortgagee to enter into a new lease with CITY as aforesaid, LESSEE shall and it does hereby waive all rights it may have to redeem its leasehold interest hereunder or to reinstate this lease. A new lease executed as aforesaid by CITY and any Leasehold Mortgagee or said assignee or designee and the leasehold estate created thereby shall have the same priority as this lease 1AL -34- with regard to any mortgage, lien, charge oc encumbrance on or other interest in the Marina SIte, whether the same is created or comes into .existence before or after the date of such new lease. All notices by CITY to a Leasehold Mortgagee pursuant to this Article or pursuant to any other provision of this lease, shall be given by registered or certified mail, postage prepaid, return receipt requested, addressed to such Leasehold Mortgagee at the address last specified to CITY by such Leasehold Mortgagee. Notwithstanding the foregoing provisions of this Article, no Leasehold Mortgagee shall have any rights hereunder unless it shall (i) have a book net worth at the time of the making of the Leasehold Mortgage of at least Twelve ,Million dollars ($12,000,000); and (ii) be a bank, savings and loan association, pension trust, mortgage company, insurance company or comparable financial institution, such as the Heller ,'Mortgage Company. Z• Assignment-Sublease LESSEE agrees not to assign or transfer the whole or part of this lease or any interest therein, nor to sublease the whole or any part of the Marina Site, nor to permit the occupancy of any part thereof by any ocher person or entity, nor to permit transfer of the lease or possession of the Marina Site by merger, consolidation, or dissolution, without the consent of the City Manager, first had and obtained in each instance. LESSEE further agrees that no assignment, voluntary or involuntary, in whole or in part of this lease, or any interest therein, and no sublease of the whole or any part of the Marina Site and ~no' permission to any person to occupy the whole or any part of the .Marina Site shall be valid or effective without the consent of the City ,Manager, first had and obtained in each instance; FINAL '~ -35- provided, further, that not mote than five (S) wet slips and storage areas for individual boats in the dry storage facility may be rented to indiv-idual members of the boating public (excluding charter boats) for a period not to exceed three (3) years without first having had and obtained in each instance the consent of the City Manager. ARTICLE X USE OF PREMISES ' LESSEE shall use the Marina Site solely as a boat port, marina and recreation facility offering dockage, mooring and other marina related services for the use of and by the general public. These uses, activities and services may include: A. Dry storage, dockage and mooring of boats. B. Operation of the recreational baywalk, (which LESSEE is obligated to maintain and to which the public must be allowed full and free access). marine exhibits, and marine oriented attractions. C. Sale of bait, tackle, ice and soft drinks. 1~. Genera! minor repairs and servicing of boats. No plan for removal of boats or crafts from the water at the facility for repairs or maintenance shall be implemented without the consent of the City Manager. E. Sale of new and used boats and motors, the display of which shall be limited to not more than five percent (S~6) of the slips, but may be incrFased with the approval of the City Manager. These slips occupied by ~ LESSEE for said purposes shall be assessed at the co.•npara)~le rate of similarly situated boats and made a part of the Gross Receipts as defined in this Lease Agreement. Commissions paid to LESSEE and included in Gross Receipts may be deducted from amounts otherwise to be included in Gross Receipts pursuant to this paragraph E. F. Sale of nautical gifts, mari~~e accessories, hardware and s;~ndries. G. Boat rentals and charter boat facilities. FINAL -36- H. Information center and telephone, mail ana messages services. 1• Sale of fuel. J• Shower and restroom facilities for the use of persons docking and mooring boats. K• Custodial service by LESSEE, including the furnishing of all maintenance supplies. L. Boat shows; provided that the duration of said shows shall not exceed twenty (201 days without approval of the City Manager; and, provided further that said boat shows shall be exempt from the five (5) percent 1 limitation set forth in sub-paragraph E above. The Marina Site shall be used for no other use or purpose whatsoever unless approved pursuant to the provisions of Article XIII, paragraph 1 hereof. It is mutually agreed that a condition for the granting of this tease is the active and r continuous use of the Marina Site as a first class marina by LESSEE (except for failure of use caused by reason of wars, strikes, riots, civil commotion, acts of public enemies and acts God) for the purposes herein described, in that said use provides a needed public service and provides additional employment, taxes and other benefits to the general economy of the area. The LESSEE covenants that all facilities located on the Marina Site shall be made available to the general public, subject to the right of the LESSEE to establish and enforce reasonable rules and regulations (including the establishment of dockage rates and other fees) to provide for the efficient, orderly, and safe operation and security of said facilities. All rules and regulations and any changes occurring therein shall be subject to the approval of :he City Manager. It is the express intent of this Lease Agreement that the marina will be operated as a public facility as a municipal ~ Carina. AL ~~ -37- The LESSEE covenants and agrees that it will not enter into any subleases, subtenancies, licenses or concession agreements relating~to the ~Vfarina Site for a period of time beyond the stated expiration date of this lease, unless said subleases, subtenancies licenses or concession ' agreements are terminable at CITY's option at the expiration or sooner termination of the term of this lease. ~ LESSEE further agrees that, at no cost to the CITY, it will (i) rovide p no more than three (3) wet slips and two (2~ dry storage spaces as chosen by 'LESSEE for use by the ~Viarine Patrol, (ii) assist the Marine Patrol in removing its boats in and out of dry storage, usin LESSEE'S g equipment and personnel, and (iii) make appropriate arrangements to accommodate the offices of the Marine Patrol in any building existing on Areas 3 or 4 on the Date of Possession, unless other arrangements are mutually agreed to by the parties. Provided, however, that this subparagraph shall not preclude LESSEE from chargin and collectin an g g y sums otherwise due from third parties (or from the CITY if CITY collects from third parties or from the proceeds resulting from the sale of confiscated vessels). LESSEE will not, through its own fault or negligence, use or 3!!ow the ~ylarina Site or any improvements thereon, or any part thereof, to be ~~sed or occupied for any unlawful purpose or in violation of any ~ certificate of compliance, license of permit or of an applicable legal or insurance requirement covering or affecting the u.~e of the Marina Si y ie, or my part thereof, and will not suffer any act to be done or any condition 'o exist on the Marina Site, or any part thereof,. or any artic'e to be brought thereon, which may, in law, constitute a nussance, public or private, or which may make void or voidable any insurance thin in force with respect thereto. .AL .'~ -38- ARTICLE XI NO REPRESENTATIONS BY CITY LESSEE acknowledges that it has examined the ,Marina Site and knows the condition •thereof and accepts .the Marina Site in its present condition and without any representations or warranties of any kind or nature whatsoever by CITY (except those expressly made by the CITY in this lease) 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 Marina Site, and al! improvements now or hereafter situated thereon, and the CITY shall not be required to furnish any facilities or services or make any repairs or structural changes, additions or alterations thereto. CITY, however, expressly represents that the two (2) piers completed on Acea 2 prior to the effective date of this agreement are in compliance with the plans and specifications on file with CITY. In the event such representation proves untrue, LESSEE is tlleved from alt obligation to construct, repair or refurbish said piers so as to cause compliance with said plans; and, CITY shall cause compliance to be made therewith within a reasonable period of time and at no expense to LESSEE. ARTICLE XII CITY NOT LIABLE FOR FAILURE OF WATER SUPPLY ETC. CITY shall not be liable for any failure of water supply, gas or electric current, nor for any injury or damage to person or property caused by or resulting from gasoline, oil, steam, gas or electricity or from hurricane, tornado, flood, wind, fire or similar storms or '-VAL . ,'~ -39- disturbances oc from water or rain which may leak or flow upon the streets, sewers, as -gains or any wb-surface area or from an g y part of the Marina Site or improvements thereon and/or its related facilities, or leakage of gasoline or oi!• from pipes, appliances sewer or plumbing works therein, or from any other place, nor for interference with light or other Incorporeal hereditaments caused by any party whatsoever, unless CITY, apart from this lease, would as a matter of law, be liable for its own fault or negligence. ARTICLE XIII OPERATING PLAN REPAIR AND ALTERATIONS 1 • Operating Plan ---~_ The LESSEE shall prepare an Operating Plan within ninety. (90) days followin execution of this lease which shall be consistent with the proposal of the LESSEE and to g the 'quest for Proposal, Bid No. 54-83. The Operating Plan shall require consent by the City ti .gager. The management responsibilities should be distributed (in said Operating Plan) in accordance with those listed by LESSEE (according to areas of expertise) in LESSEE's Attachment Number 1 to the Proposal Form, with Stephen Carter and Irwin H. Mason devoting time thereto no less than on a daily basis, with Spencer Meredith and J. Robert Carter devoting time thereto no less than on alternate days and with ~ Ronald E. Stroud devoting time thereto as needed. Said individuals shall be rep'_aced only if physically unable to perform their duties or upon co~7sent by the City Manager. 2• Re airs The LESSEE shall maintain or shall cause to be maintained the ~larina Site (during the term of this .lease) and any wet slips, buildings, structure, facilities, irprovements and c '_ ~ ' •~ _4~_ ~uctenances now or hereafter erected thereon in a good state of repair, both inside and outside and keep the same and all parts thereof, including without limiting the generality of the foregoing, the roof, foundations, wall, floors, sidewalks, baywalks, curbs, landscaping, parking area (recognizing the temporary nature of said area), water and sewer connections, windows and other glass, plumbing, water, gas and electric fixtures, pipes, wires, and conduits, elevators, escalators, boilers, machinery, fixtures, equipment, furnishings, facilities and appliances, in, on or connected with the Marina Siie or used in its operation, together with any and all alterations, additions and improvements~~ therein or thereto, in good, clean, healthful and safe order and condition, and keep all parking areas well lighted, all in accordance with applicable municipal ordinances, other governmental laws and regulations, and the direction of proper public officers, suffering no waste or injury, and shall, at LESSEE'S sole expense, promptly make or acquire ail needed repairs, replacements, tewals and additions, structural or otherwise, whether ordinary or extraordinary, foreseen or unforeseen, in and to any of the foregoing, all as may be necessary to both maintain the fair market value of the marina and to operate on the Marina Site throughout the term hereof as a high-grade first-class marina. Ali such repairs, replacements, renewals and additions shall be of good quality and sufficient for the proper maintenance and operation of the Marina ,Site and any building, ,structures, facilities, furnishings, equippment, fixtures, improvements and appurtenances hereafter erected thereon or used in the c~eration thereof and shall be constructed and installed in compliance with all requirements of all governmental authorities having jurisdiction thereof and of the appropriate board of fire underwriters or any equivalent thereof. LESSEE shall not permit anything to be done upon the Marina Site or any improvements thereon which would invalidate or prevent the procurement of any insurance policies which may at any time be required pursuant to the ^~ovisions hereof. Further, LESSEE .snail not obstruct or permit the obstruction of the ;~ FINAL - -41- jaywalk, streets oc sidewalks or alleys in or adjoining the Hlarina Site exce t a permitted b P s may be y CITY. 3., Alterations LESSEE shall not, without prioc written consent of CITY, make any alterat' Im~ovements or additions to the improvements and facilities on the Marina Site• lops, however, that LESSEE may undertake its maintenance res nsibilit ' provided Po y and make non- structural. modificatons to the interior of buildings where said modifications do not materially change the use thereof. LESSEE shall furnish CITY with security for the payment for al! costs to be incurced in connection with such work and insurance a ainst liabilities which ma arise out of such work, g y All fees, costs and expenses relating to any such alterations, improvements or additions shall be borne by LESSEE. LESSEE shall "'omptly pay when due al! such fees, costs and expenses and LESSEE shall defend and hold ~ Y and the Marina Site harmless from all costs, damages, liens and expenses related thereto. All work done by LESSEE or its contractors pursuant to this subparagraph shall be done in a first-class workmanlike manner using only good grades of materials ,and shall com ! with all insurance requirements and al! applicable laws and ordinances an~i rul p y cegulations of governmental departments or agencies. All such alterations es and and additions to the Marina Site, whether temporary or permanent in chamProvements immediately become and shall remain the property of LESSEE Burin the terra racier, shall g hereof. <i FilvnL _ -42- 4. Operation of Marina LESSEE shall, subject to its right to temporarily close parts of the marina for regular maintenance and subject to the provisions of Article XXXII (Force Majeure), (i) continuously operate all of the Marina Site in good faith during the term with due diligence and efficiency so as to produce the maximum profitable and practical Gross Receipts which may be ~oduced by such operation; (ii) carry a reasonably complete stock of merchandise and shat! maintain reasonably adequate personnel for efficiently accommodating its customers; (Ui) keep the Marina Site constantly open for business; and (iv) operate the Marina Site as a high Bade, first-class facility in a first-class manner. I# LESSEE, after having once opened the Marina Site for business, shall thereafter fail to carry on its business in the manner required under the provisions of this Lease (including, without limitation, its failure to remain open for business continuously as hereinabove provided) then, without limiting CITY's other remedies, LESSEE shall, in recognition of the difficulty or impossibility of determining CITY's damages, pay to CITY, upon demand, as liquidated damages and not as a penalty and in addition io the monthly Minimum Annual Guaranteed Rent and other charges payable under this lease, a separate charge equal to 1/30th of the Annual Percentage Rent for the last month LESSEE was open for business continuously, for each day or part thereof LESSEE fails to so operate the Marina Site in accordance with the pcovisior,s.of this lease. ARTICLE XIV f,T AND MANAGEMENT OF LANDSCAPING AND PARKING AREAS Notwithstanding any provision to the contrary, from and after the completion of construction of the landscaping and parking areas on the Marina Site, until receipt by :~ FINAL -43- LESSEE of written notice to the contrary and during the term of th ~s lease as to Are as 3 and 4, LESSEE shall opecate and maintain or cause to •be operated and maintained the good order, condition and repair. Without limiting the generality of the fore oin same in in the maim g g, LESSEE, Manse of said areas shall observe the following standards: . A• Maintain the surface of the parking lot and baywalks and sidewalks level, smooth and evenly covered with the type of surfacing material originally installed thereon, or such substitute therefor as shall in all respects be equal m qusllty, appearance and durability. ;f B• Remove all papers, debris, filth and refuse from said areas and wash or thoroughly sweep paved areas as required. C• Maintain such appropriate parking lot entrance, exit and directional signs, maskers and lights in the parkng area as shall be reasonably required and in accordance with the practices prevailing in the operation of similar marinas in the Stare of Florida. ~• Clean lighting fixtures and relamp as needed. ' E• Repair striping, markers, directional signs as necessary to maintain in first-class condition. F• Maintain and replace landscaping as necessary to keep in a first-class condition. G• Employ courteous and uniformed personnel for patrol of the ltilarina Site to provide adequate security. ARTICLE XV LESSEE TO COMPLY WITH LAWS The LESSEE shall, at the LESSEE's sole expense, promptly com 1 • with P y ,and cause its contractors to promptly comply with: :~ FINAL -44- ARTICLE XVI ~ . INSPECTION BY CITY • The LESSEE shall permit or shall cause to be pecm~tted during the term of this lease inspection of, and access to, the Marina Site, from time to time, by the CITY, or the CITY's agents or representatives at such time and in such a manner to cause the least possible [nterference with the conduct. of LESSEE'S business. Durin$ the one (1) year period next preceding the expiration of the term of this lease, LESSEE shall "permit or shall cause to be permitted inspection of the Marina Site at ceasonable periods by or on behalf of prospective lessees or purchasers. If during such times admission to the Marina Site for any of the purposes aforesaid cannot be obtained, or if at any time an entry shall be necessary to protect the .Marina Site or to cure a breach (upon appropriate notice pursuant to Articles XIX and XX hereof), whether foc the benefit of the LESSEE or not, the CITY, or the CITY's sgents or representatives, may enter the Marina Site and accomplish any such purpose. The provisions contained in this Article XVI are not intended to create or increase, and are not to be construed as creating or increasing, any obligations on the CITY's part hereunder. ARTICLE XVII INSURANCE l• Insurance Certificates Insurance -Certificates shall be provided to the CITY showing proof that the following. policies and coverages have been issued at each of the following stages. In addition, al! policies shall provide that the CITY will receive 30 d;~ys prior written notice of cancellation of any of the said policies. (Accord form certificates must be modified accordingly.) All . iNAL - -46- A. Tile requirements of every applicable statute, law, ordinance, regulation or order, now or hereafter made by any federal, state, municipal or other public body, department, bureau, or authority B. Any applicable regulation or order of the appropriate board of fire underwriters, appropriate fire insurance eating organization, or of any liability or fire insurance company, policies oc certificates which have been furnished to CITY by LESSEE pursuant to Actic+e XYII hereof; whether or not such compliance involves structural repairs or changes or is required on account of any particular use to which the Marina Site, oc any part thereof, may be put, and whether or not any such statute, law, ordinance, requirements, regulation or order be of a kind not now within the contemplation of the parties hereto. Provided non-compliance therewith shall not constitute a crime or an offense punishable by fine or imprisonment of CITY, its officers and agents, the LESSEE may, at the LESSEE'S sole expense, contest the validity of any such statute, law, ordinance, regulation, order or requirement, and such non-compliance by the LESSEE during such contest, provided such contest shall be diligently prosecuted, shall not be deemed a breach of this lease. If uch contest seriously jeopardizes the CITY's interest or title to the Marina Site the LESSEE a~~all furnish to the CITY either (i) a bond'of a surety company satisfactory to the CITY, which bond shall be, as to its provisions and form, satisfactory to the CITY, and shall be in an amount at lease equal to one hundred twenty-five percent (1259b) of the estimated cost of such compliance and shall indemnify the CITY against the cost of such compliance and shall indemnify the CITY against all liability and any damages, interest, penalties and expenses (including, but not limited to, court costs and legal fees. and expenses) resulting from or incurred in connection with such contest or non-compliance, or (ii) other security in place of such bond satisfactory to the CITY. The CITY may require such bond or other security to include protection against mechanics' or other liens occasioned or arising out of the doing of _ any work required to be done by the LESSEE pursuant to the terms of this paragraph. ;~ FINAL - _r~ 5_ insurance policies shah be written b y insurance companies ~ with a minimum rate of A:X or its equivalent as per t3est's insurance Guide. A• Lin the Execution of the Lease A Comprehensive General Liability policy in the amount of One Million Dollars ($1,000,000) shall include the following coverages: a• Contractual coverage, if available to LESSEE, as per hold harmless agreement with the CITY and Miami Beach Redevelopment Agency shall be required and provided as follows: LESSEE further covenants that it will indemnify and save CITY harmless in and up to the amount of One Million cellars ($1,000,000) per occurrence against any and all legal llabllity, penalties, damages, expenses and judgments arising from injury or damage during the term hereof to persons or pTOPe~y oc~1O~ by any act or acts, omissions or commissions of LESSEE, or of any employees or agents of LESSEE, growing out of the use and occupancy of the Marina Site, and this shall be construed to include any such liability of CITY by virtue of its ownership of the Marina Site. b. ~ The CITY and the Miami Beach Redevelopment Agency shall be named as additional insured followed by the statement, "This coverage is primary to all other coverages carried by the City and ASencv." c. Cross liability or severability or interest clause endorsement. d. Broad Form property endorsement. ' e. Products and completed operations. f. Independent contractors. g. Personal injury liability. h. Proof of Worker's Compensation shall be provided per Statutory Florida State limits, and proof of Federal Worker's Compensa- tion coverage shall be provided as per the Jones and Longshoremen's Act. i• If the LESSEE shall own any boats of its own, LESSEE must provide: <~ 1•.~JAL -47- (l) Hull, and (2) Protection Indemnity Insurance ~ Coverage in the amount of One Million Dollars ($(,000,000) for each, respectively (Hull and Protection Indemnity). B• Prior to the Breakin of Ground or eP the Followinrt Proof of Insurance Covers Certificate of Construction of an Kind ge Shall Be Provided b~ a• Until construction is completed, an Owners and Contractors Protection liability policy shall be issued naming the CITY and Miami Beach Redevelopment Agency as the insureds foc single limits of One Million Dollars ($1,000,000) for bodily injury and property damage. b• XCU (Explosion, Collapse and Underground) coverage be s eci- fically covered naming the CITY and Miami Beach Redevelop- ment Agency as additional insureds. c• A builder's all risk completed value policy shall be provided to the CITY and Miami Beach Redevelopment Agency with the CITY and Agency being named on it as insureds as their interest may appear and shall cover against fire, extended-coverage, vandalism, and malicious mischief. Under this form, provision shall be made to continue coverage after the building, and/or buildings, marina, wet slips and other facilities and improve- ments to be constructed pursuant to Article YII are completed by permission of the insurance company until an insurance policy is issued. d• Proof of automobile coverage for limits of One Million Dollars ($1,000,000) single limit for bodily injury and for property - damage be provided, naming the CITY and the Miami Beach Redevelopment Agency as additional insureds as their interest may appear. C• As the New Facilities Are Placed into Public O eration the Additional Insurance Coverage Shall Be ProviciPrl :~ FINAL - -48- a. After completion and upon occupancy of ,the Marina, a fire policy shall be provided to the City and Agency (replacing the Builder's Risk) based on replacement cost~of the building and/or buildings, marina, wet slips and .other f8cilities and improve- me~ to ~ ~u'ucted pursuant to Article VII with the CITY and Miami Beach Redevelopment Agency named as insureds on ttKSe policies as their interest may appear, b• Business Interruption coverage shall be provided to the CITY and Miami Beach Redevelopment Agency in amounts pursuant to the contract naming the CITY and the. Agency as insureds as their interest may appear, c• Liquor legal liability be provided with the minimum limit of coverage in the amount of Three Hundred Thousand Dollars ($300,000) is required prior to opening any facility for business. d• Teachers legal liability to cover recreation instructors be provided with the minimum limit of coverage in the amount of 't'hree Hundred Thousand Dollars ($300,000). e• Shoppers repairs and/or stover or building, and/or marina opera- tion Insurance covering property under the care, custody and control of the LESSEE, shall be provided with minimum limits of coverage in the amount of One Million Dollars ($1,000,000) and with Legal Liability for the statutory limits of three (3) to five (S) years. f• Proof of automobile coverage to be provided for auttimobiles owned, hired or leased by the LESSEE, and Garagekeepers Legat Liability to cover vales parkin services shall be provided with limits of One Million Dollars (1,000,000) for Bodily Injury and for Property Damage. NOTE: [n the event the LESSEE does not conduct activities on the premises which would require any of the particular insurance above set for"th the LESSEE shall not be required to carry such insurance upon having obtained the consent of the City Manager in that regard. 2• Compliance With Insurance Reyuirements LESSEE, through its own fault or negligence, shall not violate or permit any occupant of the Marina Site, or any part thereof, to violate any of the conditions or provisions of any such policy, and LESSEE shall so perform and satisfy the requirements ~f the companies ;. FINAL _ -49- writing such policies so that at all times companies of good standing shall be willing to write and/or continue such insurance. 3. Cooperation on Collection LESSEE and. CITY shall cooperate in connection with the collection of any insurance monlies that may become due in the event of a loss, but at the sole expense of LESSEE, and CITY shall execute and deliver to LESSEE, upon written request of LESSEE, such proofs of loss and other instruments as may be reasonably required of CITY for the purpose of obtaining the recovery of any such insurance monies. No apportionment of premiums in respect to insurance policies shall be made at the expiration of the term of this lease. LESSEE may cancel any such .policies as of such expiration and obtain any premium refunds incident thereto. 4. Leasehold MortRaRe Requirements While and so long as LESSEE's interest in the Marina Site shall at any time be encumbered by a Leasehold Mortgage, LESSEE will enter into any and all agreernenis and comply with any and ail requirements as the holder of any Leasehold Mortgage may reasonably request for the protection by insurance of its interest. Al! insurance required by this Article shall be effected under valid and enforceable policies issued by insurers which are permitted to write policies relating to risks in the State of Florida. Such policies shall provide that no change -nay be made therein, and that such policies may not be cancelled as to the interest of the CITY or where such policies cover a mortgagee (including a Leasehold Mortgagee) as to the interest of the holder of such ;~ FINAL - - 50- mortgage, until at least thirty (30) .days from the date of mailing of notice thereof to CITI' or such Mortgagee, as the case may be, by registered or certified mail. 3. DeQosit of Certificates Certificates of insurance evidencing the coverage required to be maintained by LESSEE hereunder shall be delivered to and deposited with CITY. LESSEE shall furnish recelpted bills or other proof, satisfactory to CITY, of the payment of premiums for all Insurance policies at any time required to be effected and maintained under this tease, All such policies shall effectively provide that any loss payable thereunder shall be adjusted by CITY, LESSEE, and any mortgagees, and the proceeds of such insurance shall be paid to and deposited with a bank or trust company of CITY's selection in Dade County, Florida, having assets in excess of $20,000,000 as insurance trustee (herein called "Tr~.stee") which shall old, apply and make available the proceeds of such insurance to the CITY, LESSEE, and any ~~~ortgagees as their respective interests may appear and shall pay the .same to the persons entitled thereto in accordance with the terms of this lease. In connection with all insurance policies required to be maintained by LESSEE in accordance with the provisions of this Article, LESSEE shall, at ieast thirty (30) days prior to the expiration of any such policy, deliver to CITY certified copies of renewal policies evidencing the existence thereof, together with proof :~f payment ~f premiums, in the form and to the patties hereinabove provided. 6. Resolution of Conflicts Between CITY and ;~1ort a ee If the requirements of any mortgagee are stric*_er ~r rnor~ extensive *han the foregoing requirements, LESSEE shall, conform to such requirernPnts ~f s,~~_n ~i,~~rtg3 ;ee in ition to conforming to the requirements of this Artrciz, FINAL _ ~ j Change of Covera¢e Upon written application by either party, the provisions of paragraph 1 of this Article XVII may be altered by written consent of the other party. i ARTICLE XV[II DAMAGE AND DESTRUCTION 1. Obligations to Rebuild If, during the term of this lease, any improvements on, at, in or appurtenant to the Marina Site, or used in connection with the operation of the Marina, are destro ed or Y damaged, in whole or in part, by fire or any other cause, being sometimes hereinafter called "occurrence," LESSEE shall, at its sole cost and expense, and whether or not the Insurance proceeds, if any, shall be sufficient for the purpose, restore, repair, replace, rebuild, modify or alter the same, as promptly as practicable so as to minimize any loss or reduction of Annual Percentage Rent, in such manner so as to enable the continued usage of the Marina Site as contemplated by the provisions of this lease and so that the fair market value of the improvements on the Marina Site after such work is completed is at least equal to the fair market value of improvements on the .tilarina Site immediately prior to the occurrence. CITY shah in no event have any obligation whatsoever concerning restoration, nor to pay any of the costs or expenses thereof. Immediately after an occurrence, LESSEE shall notify CITY thereof and shall state in such notice LESSEE's reasonable estimate of the cost of the necessary restoration, repairs, replacements, rebuilding, modifications, or alterations (all of which are herein called "restoration"). Upon receipt of such notice from ~'~SEE, CITY will notify LESSEE as ,to whether or not it accepts LESScE's estimate. .~ FINAL -52- Should CI7'y not accept LESSEE'S estimate of the cost` of restoration proceed as if the estimate furnished by LESSEE had exceeded Tw 'restoration shall o Hundred Thousand Dollars ($200,000). If the estimate of the cost of restoration is Two Hundred T housand Dollars ($200,000) or more, restoration shall proceed in accordance with the rovision P s of paragraph (3) below. 2. Damage Less Than $200,000 In the event of an occurrence resulting in damage or destruction to the Marina Site or any portion thereof, such that the cost of restoration as estimated by LESSEE, and agreed to by the City Manager, is less than $200,000, the Trustee is hereby authorized to pay over the proceeds of any insurance payable on account of any such occurrence directly to the LESSEE ( !f LESSEE has not defaulted under the provisions of Article XX hereof) upon the recei t o such notice of agreement. LESSEE may proceed with the restoration without p f prior approval of the City Manager, provided that LESSEE will not permit any lien or-charge of any kind or Character to be placed upon or against the A~Iarina Site by reason of any such restoration and that, to secure LESSEE'S performance under this paragraph 2, LESSEE furnishes to CITY prior to the commencement of restoration, a bond guaranteeing completion of the restoration in accordance with the provisions of this lease. All such restoration shall be made and constructed in a good and workmanlike manner in accordance with all applicable statotes, ordinances and regulations. CITY shall be furnished with evidence satisfactory to it that the restoration has been completed free of all liens (or claims of lien) by mechanics or materialmen. - :~ FINAL - 53- 3. Damage $200,000 or More In the event of an occurcence resulting in damage or destruction to the Marina Site, or any portion thereof, such that the cost of restoration as estimated by LESSEE, and agreed to by the City Manager, is Two Hundred Thousand Dollars ($200,000) or more, restoration shall proceed as follows: A. The plans and specifications for the restoration shill first be submitted to and approved in writing by the City Manager, provided that in the City Manager's judgment restoration in accordance with such plans and specifications will enable the continued usage of the Marina Site as contemplated by the provisions of this lease, that the fair market value of the improvements on the Marina Site after restoration is completed will be at least equal to the fair market value thereof immediately prior to the occurrence, and that the exterior design and architecture of the Marina facilities, improvements and buildings will continue to be compatible with the exterior design and architecture of the Marina Site prior to the occurrence. t3. When puns and specifications have been approved and firm bids on the cost of the restoration have been .received (and copies thereof furnished to the CITY), LESSEE shall promptly deposit with the Trustee an amount equal to the excess, if any, of the estimated cost of restoration (based on such bids) over the amount of the insurance proceeds deposited with the Trustee. C. Provided that the Trustee has not received a "Notice of Objection" (hereafter defined) from the City Manager, the proceeds of the insurance, together with any additional amount deposited with the Trustee in accordance with subparagraph B above, shall be paid out by the Trustee from time to time; as restoration progresses, ten (10) days after the Trustee's receipt of LESSEE'S written request (herein called the "Disbursement Requests"), if each of the requests shall be accompanied by the following: a. A certificate signed by the architect or engineer in charge of the restoration, who shall be selected by LESSEE and approved in writing by the City Manager, dated not more than five (5) days prior to such request, setting forth the following: - _ i. That the sum then requested either has been paid by LESSEE, or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration thereir: specified (in.~Fcordance wits p;;,.r;s and specifica- r. ' )4- tions approved by the City Manager), giving a brief description of such services or material and the several amounts so paid or due to~ each of said persons in respect thereof, and stating that no part of such expenditures duplicate payment or cover previous payments made out of the proceeds of any insurance received by LESSEE, and that the sum then requested does not exceed the value of the services and materials described in the certificate; ii. That, (except for the amount, if any, stated pursuant to the foregoing clause "i" of this subparagraph 3.C.a. to be due for services or materials) there is no outstanding indebtedness known to the person signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies, or services in connection with such restoration which, if unpaid, might become the basis of a rendor's, mechanic's, laborer's or materialman's statutory or similar lien upon such restoration or upon the Marina Site, or any part thereof, or upon LESSEE'S leasehold interest therein (unless such lien is adequately bonded or insured against by a surety company bond or title policy free and clear of such liens, by a• company and in form, substance and amount satisfactory_ to the City Manager); iii. That the completion cost, as estimated by the person or persons signing such certificate, of the restoration required to be done subsequent to payment of the sum requested, does not exceed the amount deposited with the Trustee. b. Evidence from LESSEE, satisfactory to the City ililanager, to the effect that there has not been filed with respect ,to the Marina Site, or any part thereof, any vendor's, mechanic's, laborer's, materialmen's or other lien. which has not been discharged of record except such as will be discharged by payment of the amount then requested or have been bonded or insured against as in clause iii, of subparagraph 3.C.a. herein provided. D. A copy of each Disbursement request shall be mailed or delivered to CITY simultaneously with its being mailed or delivered to the Trustee. If the - + City Manager concludes that the disbursement requested is nor proper under the terms of this lease, CITY shall pro,nptly give novice to the Trustee (the "Notice of Objection"), with a copy to LESSEE, of CITY'S objection, specifying in reasonable detail the basis of s~ich objection. Thereafter, the Trustee st~all~ make no disbursements unless ar.~ unril the •« FINAL - -55- Trustee is either directed to do so in writing jointly by LESSEE and the City Manager (after which the procedures of subparagraph C. above s:iall apply to future disbursements unless said ~ joint notice to the Trustee provides to the contrary) or is furnished with a copy of a decree or court order directing the Trustee with respect to the funds held by the Trustee pursuant to this lease. E. Anything herein contained to the contrary notwithstanding, it shall be the duty of LESSEE at the time of the deposit with the Trustee of the t~wance proceeds as aforesaid, and from time to time thereafter until the restoration shall have been completed and paid for, to furnish CITY with additional and adequate evidence of the fact that, at all times, the undisbursed portion of the money so deposited is sufficient to pay for the restoration In its entirety and is sufficient to procwe receipted bills and full and final waivers of lien to be furnished to the Trustee at the time the LESSEE presents the final request for payment. The restoration provided for under this Article XVIII shall be made and constructed in a good and workmanlike manner in accordance with ail applicable statutes, ordinances and regulations and shall be completed free of any liens or charges against the Marina Site arising out of such restoration. To secure LESSEE'S performance under this paragraph, LESSEE shall furnish to the Trustee prior to the commencement or restoration a payment and performance bond (in form and substance satisfactory to the City Manager) guaranteeing such completion, free and clear of all mechanics and other liens arising from such restoration. 4. Deficiency Deposit If the insurance money available for restoration shall, at any time or for any reason, be insufficient to pay the entire cost of such repair and restoration, LESSEE shall promptly deposit with the Trustee an amount sufficient to discharge such deficiency. 3. No Surrender of Lease Subject to the provisions of Article XXV and Article XXXII hereof and paragraphs 7 and 8 of this Article, no destruction of or damage to the ~19arina Site, or any part thereof, however caused, shall permit LESSEE io surrender this lease or shall relieve LESSEE from its liability to pay the full rent and other charges payable under this lease or from any of its other obligations under this lease, and LESSEE waives any rights now or hereafter conferred upon it by statute or otherwise to quit or surrender this lease or the Marina Sitr, :r any part FINAL _ 5~_ +hereof, or to any suspension, diminution, abatement or reduction of rent on account of any such occurrence. 6. Excess Proceeds. If the amount of the insurance proceeds shall exceed the entire cost of restoration, and provided LESSEE is not in default under the provisions of this lease or of the leasehold mortgage, if any, such excess, upon completion of the restoration, may be paid to and appiled by the Leasehold Mortgagee in reduction of the indebtedness secured thereby or may be retained by the LESSEE. 7. No Obligation to Rebuild, When Notwithstanding anything to the contrary in this lease, LESSEE shall have no obligation to rebusld or restore the Marina Site during the last three years of the Initial . erm hereof or at any time during any extended term hereof as a result of (i) any insured casualty that results in the loss of thirty (3046) percent or more of the replacement cost of all facilities and improvements on the Marina Site or {ii) any uninsured casualty that is in excess of Two Hundred Thousand Dollars ($200,000) in darnage to the facilities. If said loss is an insured loss, all insurance proceeds, resulting from said loss shall first go to pay the remainder of any then existing mortgage of LESSEE and then to CITY. and if said loss is an uninsured loss, LESSEE may pay the remainder of any existing leasehold Tortgage of LESSEE and upon written notice from CITY shall raze the remains of the improvements and facilities on the Marina Site and in each instance this lease shall then terminate and _ LESSEE's Security Deposit shall be returned in accordance with the rrovisions of .article V[II hereof. FINAL - -57- Termination. When If after the twenty-seventh (27th) anniversary of the' effective date of this lease, the facilitles and improvements on the Marina Site are damaged by fire oc. any other cause, the iollowing provision of this paragraph shall apply: If;the damage is to such extent that the cost of restoration, as estirnated by CITY and LESSEE, will equal or exceed thirty percent (30916) of the replacement value of the facilities and improvements (exclusive of foundations) in their condition just prior to the occurrence of the damage, LESSEE may within sixty (60) days following the damage give CITY a notice stating that it elects to terminate this lease. [f such notice shall be given: (i) This lease shall terminate on the seventh (7th) day after giving of such notice; (iI) LESSEE shall surrender possession (under Article XXX hereof) of the Marina Site within a reasonable time thereafter; (iii) The rent and all .items _of additional rem and other additional charges shall be apportioned as of the date of such surrender; (iv) CITY and LESSEE will prepare an instrument in farm suitable for recordation acknowledging the termination; and (v) Within a reasonable time but no longer than three (3) months from that date LESSEE at CITY's option, will raze and remove the facilities and improvements on the Marina Slte, according to plans and specifications submitted for approval by LESSEE to the City Manager; (vi) LESSEE'S Security Deposit shall b~ returned thereafter in accordance with the provisions of Article VIII hereof. FINAL _ ~~_ ARTICLE XIX _ CITY MAY CURE DEFAIl~LTS If the LESSEE shall default in the performance of any covenant or condition contained herein on its part to be performed, the CITY, without being under any obligation to do so and ivlthout thereby waiving such default, may after giving the notice specified in Article ' XX hereof, or without notice if, in CITY's discretion, an emergency exists, perform the same for the account and at the expense of the LESSEE. If the CITY should incur any expense, including reasonable attorney's fees, in instituting, prosecuting or defending any action or proceeding instituted by reason of any default of the LESSEE, the LESSEE shall reimburse the CITY for the amount of such expense. The amount thereof shall be deemed additional rent for the purposes of the CITY's rights and remedies under this lease and be immediately due and payable and may, at the option of the CITY, be added to any -subsequent installment of rent due and payable under this lease, in which event the CITY shall have the remedies for default in the payment thereof provided by Article XX of this lease. ARTICLE XX TERMINATION OF AGREE'~1ENT 1. Events of Default If any one or more of the following events (which event or events are herein sometimes called "an Event or Events of Default") shall happen: FINAL - - 59- A. If default shall be made in the due and punctual payment of any installment or monthly payment of Base Rent or other sum or char e LESSEE under this lease when and as the same shall become dueeand payable and such default shall continue for a period of thirty (30) davs after written notice thereof from CITY to LESSEE and to any leasehold mortgagee entitled to such notice, which notice shall state the amount of such rent and other sums oc charges then due and unpaid and the date or dates upon arhich the same was due and payable under the teems and provisions of this lease; or B. , Lt default shall be made by LESSEE in the performance or compliance with, i any of the covenants, agreements or conditions contained in this lease (other than the default referred to in the foregoing subdivision A. of this paragraph 1) which neither jeopardizes the public health, safety, or welfare nor the licenses and pei-mits issued for construction or operation of the marina and such default shall continue for a written notice thereof from CITY to LE SEE oand i to (any dleasehold mortgagee entitled to such notice, describing with reasonable particularity ' the alleged default of LESSEE and the approximate date on which such default occurred; (provided, however, that LESSEE shall not be deemed to be in default if rectification of said default shall be commenced in good faith before the end of said thirty (30) day period of grace, and correction thereof shall be prosecuted with due diligence to completion) or C. If default shall be made by LESSEE in the performance of, or compliance with, any of the covenants, agreements or conditions contained in this lease (other than those referred to in the foregoing subdivision A. of this paragraph) which does jeopardize the public health, safety or welfare or the licenses and permits issued for construction or operation of the Marina. (to the extent that the giving of notice as specified in paragraph B immediately above would result in such jeopardy) and .such default shall continue after written notice thereof from CITY to LESSEE and to anv leasehold mortgagee entitled to such notice, which notice shall describe with reasonable particularity (i) the alleged default of LESSEE., (ii) the approximate date on which such default occurred, and (iii) the date by which LESSEE must cure the same; (provided, however, that. LESSEE shall not be deemed to be in default if rectification of said default shall be commenced immediately and in good faith and correction thereof shall be prosecuted with due diligence to completion); or ~• t If LESSEE shall file a voluntary petition in bankruptcy or shall be adjudicted a bankrupt or insolvent, or shall file any petition or answer seeking LESSEE's reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future law relating to insolvency, or shall seek or consent to or acquiese in the appointment in connection with any of the foregoing of the trustee, receiver or liquidator of LESSEE or of all or any substantial part of its properties or of the Marina Slte (provided there is also an independent finding that the LESSEE cannot give "adequate assurances of future performance"); or :. ?INAL - _6p_ E. If within sixty (60) days after the commencement of any proceeding against LESSEE seeking LESSEE'S reorganization, arrangement, composition, readjustment, liquidation, diuolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law relating to insolvency, such proceeding shall not have been dismissed; or, if, within sixty (60) days after the appointment, without the consent or acquiescence of LESSEE, of any such trustee, receiver oc liquidator of LESSEE or of all or any substantial pact of its properties or of the Marina Site, such appointment shall not have been vacated or superseded; then ahd in any such event, CITY, at any time thereafter during the continuance of such Event of Default, may give written notice to LESSEE and to any leasehold mortgagee entitled to such notice specifying such Event of Default or Events of Default and stating that this lease and the term hereby demised shall expire and terminate on the date specified In such notice, and upon the date specified in such notice, subject to the provisions of paragraph 4 of this Article and to the provisions of Article IX of this lease, this lease and tht term hereby demised and al! rights of LESSEE under this lease shall expire and ~minate. 2. Rl~ht of Re-Entry Upon any such expiration or termination of this lease, LESSEE shall q~;t and peacefully surrender the Marina Site to CITY, and CITY, upon or at any time alter anv such expiration or termination, may without further notice, enter upon and re-e;-ter the `Marina Site and possess and repossess itself thereof, by self-help in any manner (so lung as such action3 by CITY do not constitute or result in a breach of the peace), summary proceedings, ejectment or otherwise, and may dispossess LESSEE .and remove LESSEE and all other _ persons and property from the Marina Site and the right to receive all rental income of and from the same. No re-entry by the CITY shall be deemed an acceptance of a surrender of this lease or shall absolve or discharge LESSEE from any liavility under this lease. FINAL - _~ 1 _ ,. j. Right to Relet At any time and from time to time after any Event of Default, CITY may reiet the Marina Slte, or any part thereof, in the name of CITY or otherwise, for such term or terms (whleh may be greater or lesser than the period which would otherwise have constituted the balance of the term of this lease) and on such conditions (which may include concessions of jj ; frle tent) as CITY, in its reasonable discretion, may determine and may collect and receive the rents therefor. However, in no event shall the CITY be under any obligation to relet the Marina Site, or any partthereof, and CITY shall in no way be responsible or liable for any (allure to relet the Marina Site, or any part thereof, or for any failure to collect any rent due upon any such reletting. Provided, however, after an Event of Default but before any such reletting by CITY id before such expiration or termination, LESSEE may request in writing that the CITY consent to assignment of this lease to another qualified lessee, which consent shall not be unreasonably withheld; and, provided further, that following such expiration or termination CITY in compliance with the provisions of the Community Redevelopment Act and the provisions of any other applicable !aw shall use due diligence to relet the 1Aarina Site. ,: k. LESSEE'S Continuing Obligations jNo such expiration or termination of this lease shall relieve LESSEE of its liability and obligations under this lease; and such liability and obligations shall survive any such expiration or termination. In the event of any such expiration or termination, whether or not the Marina Site, or any part thereof, shall have been relet, LESSE£ shall pay to the CITY the entire rent and all other charges required to be paid by LESSEE up to the time of ~:~ ~h expiration or termination of this lease, and thereafter LESSEE, until the end of what FINAL -62- ~: . w~ have been the term of this lease in the absence of such expiration or termination, shall be liable to CITY, and shall pay CITY, as and for liquidated and agreed current (but not !n waiver of final) damages for LESSEE's default: A. The amount of fixed rent, percentage rent and other charges which would be payable under this lease by LESSEE if this lease were still in effect, less B. The net proceeds of a.ny reletting, after deducting all of CITY's reasonable expenses in connection with such reletting including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys' fees, alteration costs, and expenses of preparation for such reletting. For purposes of this paragraph 4, the amount of the percentage rent that would be payable under this lease by LESSEE if this lease were still in effect shall be computed on the Basis of the highest total Gross Receipts during the consecutive twelve (12) months next ~' ,tding the month in which the occurrence requiring such computation takes place. LESSEE shall pay such current damages to CITY monthly on the days on which rent could have been payable under this lease if the term of this lease were still in effect, and :ITY shall be entitled to recover from LESSEE each monthly deficiency as the sarr:e shall rise. . No .Waiver No ~fallure by either party to insist upon the strict performance of any term, covenant, ~reement, provision or condition of this lease or to exercise any right or remedy _ ~nsequent upon a breach thereof, and no acceptance of full or partial rent during the ~ntlnuance of any such breach, shall constitute a waiver of any such breach or of such arm, Covenant, agreement, provision or condition of this lease to be performed or complied 1._. ~ sither party, and no breach thereof, shall be waived, altered or modified except ~y a NAL -63- ,. . w. • 'n instrument approved, by resolution, by the City Commission of CITY or by LESSEE. No waiver of any breach shall affect or alter this lease, but each and every term, covenant, agreement, provision and condition of this lease shall continue in full force and effect with -eepeet to any other then existing or subsequent breach thereof. i. Remedies Preserved In the event of any breach or threatened breach by either party of any of the terms, :ovenants or agreements contained in this lease, either party shall be entitled to enjoin such reach or threatened breach and shall have the right to invoke any right and remedy allowed y law oc in equity oc by statute or otherwise as though re-entry, summary proceedings, and then remedies were not provided for in this lease, unless another right or remedy is ~ecificaily made the sole right or remcdy of said party. ..,ghts Cumulative Subject to the provisions of paragraph 4 of this Article wi ~h respect to liquidated Images and unless another right or remedy is specifically made the sole right or remedy of id party, each right and remedy of either party provided for in this lease shall be in dltion to every other right or remedy provided for in this lease ~r now ~r hereafter fisting at law or in equity or by statute ~or otherwise, and the exercise ur beginning of the ercise by either party of any one or more of the rights or remedies provided for in this tse or now or hereafter existing at law or in equity or by statute or otherwise shall not ~clude the simultaneous or later exercise by either party of any or all other rights and nedies provided for in this lease or now or hereafter existing at law or in equity ur vy lute or otherwise. JAL -64- ,. ~. ESSEE Responsible For Sub Lessees Any violation of any covenant or provision of this lease, whether by act or omission, by ny sublessee or under-tenant, or their representatives, successors or assigns, or any other ersons occupying space in the Marina Site, shall be deemed a violation of such provision by ~e 'LESSEE and a default under this lease. Any such violation shall not be deemed to be a e~ult if LESSEE cures in accordance with the provisions of Article XX hereof. ARTICLE XXI ADDITIONAL PROVISIONS RELATING TO LEASEHOLD MORTGAGE City Interest in Site Not to be Encumbered QY~ept as herein provided, neither the CITY's interest in the Marina Site nor zrovements thereon, nor the rights of CITY under this lease shall be encumbered by, or ordinated in. any way to, any leasehold mortgage or any other lien or encumbrance to be je or created by LESSEE on its leasehold interest under this lease and/or on the ~1~farina nor otherwise nor shall the LESSEE in any event have any right or authority to create liens or encumbrances on or affecting the CITY's interest in the ,lrlarina site or rovements thereon or any rights of the CITY therein. Mortgage Requirement as to Insurance Proceeds Any leasehold mortgage created pursuant hereto shall provide that all uroceeds of ally insurance required to be maintained in effect by the terms of this lease shall be able for repairs and restoration of the Marina Site and improvement; t~ere~~n. L -6 S- " LESSEE to Comply with MortRaQe Requirement - LESSEE agrees that it will comply with and perform all of its covenants and obligations under any leasehold mortgage. ARTICLE XXII NOTICES All notices, demands, requests or communications by LESSEE to CITY shall be deemed to have been properly served or given, if delivered personally or sent by United States registered or certified mail, return receipt requested, postage prepaid, addressed to: City Manager Rob W. Parkins 1700 Convention Center Drive Miami Beach, FL 33139 and City Attorney Lucia Allen Dougherty 1700 Convention Center Drive Miami Beach, FL 33139 or to such other address and to the attention of such other party as CIT'r~ ;nay 1:rorn tine cu time designate by written notice to LESSEE. All notices, demands, requests or communications by CITE" to LESSEE shall be ~leerned to have been properly served or given if delivered personally or sent by United States registered or certified mail, return receipt -e~uested, postage prepaid, addressed to LESSEE, ' FINAL ~-66- c/o Mr. Irwin Mason S11 West DiLido Drive DiLido Island Miami Beach, FL 33139 and Stephen H. Cypen Cypen, Cypen ~ Dribin 82S Arthur Godfrey Road P. O. Box 402099 Miami Beach, FL 33140 or to such other address and to the attention of such other party as LESSEE may from time to time designate by written:notice to CIT :'. Notwithstanding anything to the r_ontrary contained in this Article, no notice, demand, request or communication by CITY to LESSEE, or by LESSEE to CITY, shall be deemed to have been properly served or given unless a copy thereof shall have been contemporaneously --~d in like manner on any ;leasehold mortgagee of the LESSEE'S interest in the :Marina Site (provided, however, CITY has been notified in writing of such mortgage). A notice, request or other communication to CITY shall not be deemed to have been validly given by personal delivery unless It is delivered, in writing, personally to ttie City ~1.lanager. ARTICLE XXII[ INDE.ti1NIF[CATION The LESSEE shall indemnify and save harmless, except to tt'ie extent of CITE"'s awn :egligence, the CITY against any and ail claims, suits, •3ctior,s, damage• ~~r causes of action ~"-~ected with, related to, by reason of, or arising out of an: personal in~,~ry, ,~s5 ;,I :;iz, ,,- INAL _~7_ ,. iamage to property sustained in or on the Marina Site b reason Y of or as a result of . LESSEE'S construction desi ~ gn, use, activities, and operations relating to said ~~iarina Site, Including, but not limited to all costs, attorneys' fees, expenses and liabilities incurred in the defense of any claim and the investigation thereof. LESSEE further agrees to Indemnify, defend, and save harmless the CITY, its officers, agents and employees from an Y aid claims and losses accruing or resulting to any and all contractors, subcontr actors, materialmen, laborers, and any other person, firm or corporation furnishing or supp(yin work, services, materials, or supplies in connection with the performance of this cont g tact and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by LESSEE in the performance of this agreement. The CITY shall indemnify and save harmless LESSEE, except to the extent of LESSEE's _,vn negligence, against any and ail claims, damages or causes of action connected with, related to, by reason of, or arising out of certain litigation styled South Shore Deveta~ers Inc. et al. v, City of Miami Beach, Florida Pr a i Case No 82-24526, 11th Judicial Circuit, Dade County for any direct injury, loss of profits, or damage to business interests sustained by reason of any judgment or lis pendens in the above styled case, including Uut not limited to all costs, attorneys' fees, expenses and liabilities incurred in the defense of any claim and tie investigation thereof. 1 The foregoing agreements of indemnity are in addition to and riot by ~,vay ~f limitation on any other covenants herein. FINAL -68- ARTICLE XXIV LIENS Notice is hereby given that the CITY (as a municipality) is not nor shall not be liable for any labor or materials furnished or to be furnished to the LESSEE upon credit and that no mechanics' or other lien for any such labor or materials shall attach to or affect the remainder of the stag or interest of the CITY in and to the Marina Site and/or the remainder or other estate or: interest of the CITY in and to the Marina Site. In order to assure the CITY the payment of rent hereunder, the LESSEE covenants that whenever and as often as any mechanics' lien shall have been filed against the Marina Site, based upon any act or interest of the LESSEE or of any one claiming through the LESSEE, or any and ail ~onditionai bills of sale or chattel mortgages or security agreements, and such lien is not barged, of record, for fifteen (1S) days after notice to LESSEE, the CITY may (but has io vpligation to do so) pay the amount of such mechanic's lien, Conditional bill of sale or :hatte! mortgage or security agreement (limited to liens affecting CITY's real estate and he facilities and improvements thereon and excepting liens affecting LESSEE'S movable, trsonal property which result from bona fide transactions for :air value) cr discharge the ame by deposit, and the amount so paid or deposited, with interest thereo~i, shall be deeme•,; dditional rent for the purposes of the CITY'S rights and remedies ::nder this -ease, and shall e payable forthwith with interest at the rate of one percent over prune peg annum (as nnounced by The Chase Manhattan Bank N.A. of New York) from the date of such psyrr~ert deposit, and CITY shall have the remedies herein provided by reason of default in the syment of such amount together with the appropriate amount cf interest. NAL -6y- In order to comply with the provisions of applicable Florida Statutes, it is specificall Y provided that neither the LESSEE nor anyone claiming by, through or under the LESSEE, lnetudtng, but not limited to, contractors, subcontractors, materialmen, mechanics and laborers, shat! have any right to file or place any mechanics' or materiaimen's liens of anv kind whatsoever upon the Marina Site nor upon any building or improvement thereon, nor upon th~ interest of the CITY in the Marina Site or any building or improver-gent thereon, and any' such liens are hereby specifically prohibited. All parties with whom the LESSEE may deal are put on notice that the LESSEE has no power to subject. the CITY's interest to any claim or lien of any kind or character, and all such persons so dealing with the LESSEE must look solely to Lhe credit of the LESSEE, and not to the CITY's interest or assets. ARTICLE XXV EMINENT DOMAIN 1. Permanent Taking In the event all of Areas 1 and 2 of the Marina Site shall be permanently appropriated or taken under the power of eminent domain by any public or quasi-public autherity, this lease shall terminate and expire as ~of the date of such taking, and both CITY and LESSEE shall thereupon be released from any liability thereafter accruing hereunder. In the event more than twenty-five percent (ZS9~6) of the total square footage of Areas 1 and 2, within c :he Marina Site is permanently taken under the power of eminent domain by any public or ~uasl-public authority, or if by reason of any appropriation or taking, regardless of the amount so taken, the remainder of Areas 1 and 2 of the Marina Site is not usable for the purposes for which the premises were leased, then either CITY or LESSEE shall have the '` ' t to terminate this lease, as of the date LESSEE is reU~iired to vacate the portion cif 'INAL -70- .s 1 and 2 so taken, upon giving notice to the other in writing of such election within sixty (60) days after the date of such taking. In the event of such termination, the LESSEE and CITY shall thereupon be released from any liability thereafter accruing hereunder. Ii this lease Is terminated as hereinabove provided, all items of rent, additional rent and other charges for the last month of LESSEE's occupancy shall be procated, and CITY agrees to i refund to LESSEE any Base Rent paid in advance and to return the Security Deposit in accordance with the provisions of Article VIII hereof. For purposes of this Article, a taking for more than six (6) months shall be deemed a permanent taking; and a voluntary sale or conveyance in lieu of condemnation, but under threat of condemnation shall be deemed an appropriation or taking under the power of eminent domain. If this lease is not to so terminated, LESSEE shall remain in that portion of the :Marina Site which shall not have been appropriated or taken as herein provided, and LESSEE, at LESSEE'S costs and expense, shall, as soon as is reasonably possible, restore the remaining portion of the leased premises to the same quality and character of facilities, improvements and operations as existed prior tom such appropriation or taking to the greatest extent possible. Any change to the Base Rent shall be agreed to by CITY and !_ESSEE prior to such •estorat~on; and, failure to agree shall be treated as a termination of this lease pursuant to :he provisions of this Article. In the event Areas 1 and 2 of the Marina Site, or any part thereof, shall be acquired by ,ppropriation or taking at any time during the Initial Term of the Lease, :ne division of the ^-~sation therefor shall be based upon the respective interests at :au~ ;,•* a: p~~rties INAL _~ 1 _ •ing an interest in said .Areas 1 and 2. Any portion of such compensation attributable to the Improvements made by LESSEE pursuant to the provisions of Articles VIl and/or XV[II hereof (and not to improvements made by CITY prior to the effective date hereof) shall be first applied to retire any mortgage indebtedness in the order of its priority and then paid to LESSEE. Provided, however, that LESSEE'S award for improvements it constructs shall be ~mortized so as to compensate LESSEE for said taking to the extent of one-three hundred and sixtieth (1/360th of the LESSEE'S total cost of construction multiplied by the number of months remaining in the Initial Term. CITY shall be entitled to the remainder, if any, of the entire award of compensation, but nothing herein shall be deemed to effect LESSEE'S right to receive compensation or damages for its fixtures and personal property. 2. Temporary Taking If the temporary use of: the whole or any part of the Marina Site shall be taken by any ~dwful power of authority, by the exercise of the right of eminent domain, LESSEE shall give prompt notice thereof to CITY. The term of this lease shall no*. be reduced or affected in any way and LESSEE shall continue to pay in full the Base Rent without setoff, reduction or abatement on account of such .taking, and LESSEE shall be entitled to receive for ::self all awards or payments made in connection therewith, including, without li^iitation, awards for such use during the remaining term of this lease and awards for damages t~~ or restoration of the Marina Site (including damages to any remainder not taken). When possession of the whole or such part of thz :~•tarina Site a5 tif~alt nave b~~^ taken for such temporary use shall revert to the LESSEE ~~~^r to the ex,:.iration :: =prier termination of the term of ''.is lease. LF~-~ =~ - _~: - :T :. -;~~= ~ ~ se, restore thn F ., ,,, •~ ~. . ration be in substantially the condition it was in prior to such taking, ordinary wear and deterioration excepted. LESSEE (without waiving its statutory rights, if any, to receive attorney fees from the condemning authority) shall pay all expenses, including attorneys' lees, incurred by LESSEE in said eminent domain suit with respect to the total award for such taking for temporary use. ARTICLE XXVI WAIVER OF REDEMPTION The LESSEE, for itself and for all persons claiming through or under it, hereby expressly waives (to the extent, permitted by law) any and all rights which are or may be conferred upon the LESSEE by any present or future law to redeem the A~iarina Site, after •ntry thereupon, or upon any part thereof, by the CITY, or after any warrant to :. . ossess, writ of restitution, judgment in ejectment or forcible detainer. The foregoing shall not be deemed to constitute a waiver by LESSEE of any defenses or rights to appeal. ARTICLE XXVII COVENANT OF QUIET E.'V3:JYtitENT If and so long as the LESSEE shall pay the entire rent reserved 5y this lease, ar;d shall erform and observe all the covenants, agreements and conditions herein containea on the in of the LESSEE to be performed and observed, CITY covenants that the LESSEE shall ~ietly enjoy Lhe Marina Site without hindrance or molestation by the C'IT~ , or an~• person ' persons whatsoever, Claiming through or under CITY, siihject, however, to the covenants. ;r~ements and conditions of this lease. • NFL -?3- ARTICLE XXVIII WAVERS AND SURRENDERS TO BE IN WRITING The receipt of rent by the CITY, with knowledge of any breach of this lease by the LESSEE or of any default on the part of the LESSEE in the observance or performance of any of the conditions, agreements or covenants of this lease, shall not be deemed to be a waiver of any provision of this lease. No failure on the part of the CITY to enforce anv covenant or provision herein contained, nor any waiver of any right hereunder by the CITY, mle~s in wciting, shall discharge or invalidate such covenant or provision or affect the right ~f the CITY to enforce the same in the event of any subsequent breach or default. No :ovenant or condition of this lease shall be deemed to have been waived by the CITY unless such waiver be in wciting, signed by the CITY or the CITY's agent duly authorized in writing. '_ ent of the CITY to any act or matter must be in writing and shall apply only with e .ct to the particular act or matter to which such consent is given and shall not relieve he LESSEE from the obligation, wherever required under this lease, to obtain the consent of ~e CITY to any other act or matter. Neither the receipt by the CITY of any rent or any ther sum of money or any other consideration hereunder paid by the LESSEE after the ~rmination, in any manner, of the term herein demised nor acceptance of the keys nor any Cher act or thing done by the CITY or any agent or employee during the term herein ~mised shall be deemed to be an acceptance of a surrender of the Ylarina bite, unless so ;reed to in a writing duly executed by the CITY. V r.L -]!~_ ,. ARTICLE X XIX SURRENDER OF THE ti1ARINA SITE 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 up unto the CITY the 11~larina bite, together with any and all equipment, fixtures, furnishings, appliances or uther personal property located at or on the Marina Site and used by. LESSEE in the maintenance, management or operation of~ the Marina, excluding any trade fixtures or personal property which can be removed without material injury to the Marina Site, .free of all liens, claims and encumbrances and rights of others and free of subleases, subtenancies and license or concession agreements that CITY has terminated pursuant to this tease, broom-clean, together with all structural changes, alterations, additions, and i;nprovements which may eve been made upon the Marina .Site, in good order, condition and repair, reasonable wear a tear excepted, subject, however, to the subsequent provisions of this ,Article. Any property which pursuant to the provisions of this Article is removable by LESSEI= un or at the Marina Site upon the termination of this lease and is not so removed may, at the option of the CITY, be deemed abandoned by the LESSEE, and either may :~e retained by tt:e LITY as its property or may be removed and disposed of at the sole cost ;~f the LESSEE in sucr manner as the CITY may see fit. If the Marina Site and personal property be not surrendered at the end of the term as provided in this ,Article YXI:`C, the LESSEE shall make r good to the CITY all damages which the CITY shall suffer by reas.~n thereof, ar~d shali idemnify the CITY against all claims made by any succeeding tenant or purchaser, so far as ~ - such delay is occasioned by the failure of the LESSEE to s~.~rrendr'r the .tilarina Site as and when herein required. ~• . The LESSEE covenants and agrees that it will not enter into any subleases, subtenancies, licenses or concession agreements relating to the Marina Site for a aeriod of time beyond the stated expiration date of this lease, unless said subleases, subtenancies, licenses or concession agreements ace terminable at CITY's option at the expiration of the term of this lease (whether by acceleration or otherwise). .ARTICLE XXX NET LEASE This lease shall be deemed and construed to be a "net lease" and the LESSEE shall pay to the CITY absolutely net throughout .the term of this lease, the rent and other pa>>ments ~reunder, fcee of any charge, assessments, impositions, expenses or deductions of any kind .d 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 CITY be expected or required to make any payment of any kind whatsoever (unless reimbursed by LESSEE) or be under any other obri~a:ron ~~r liability as to the Marina Site except as otherwise specifically stated in thrs !ease: and the LESSEE agrees to pay all costs and expenses of every kind ar~d nature whatsoever ~r:5:ng out Of or ip connection with the Marina Site which may arrse or become d~~e during the :e; m of this lease, and which except for the execution and delivery Hereof, would or could h~~:e been payable by the CITY. f-.NAL -76- ,. . ARTICLE XXX[ CITY AND LESSEE TO FURNISH STATEMENT The CITY, within twenty (20) days after written request of the LESSEE or of anv holder or prospective holder of a mortgage on this lease, will furnish a written statement. duly acknowledged, as to the following items: (1) the amount of the rent then due; if any; (2) whether or not the insurance required by this lease has been supplied in compliance therewith; (3) whether or not the lease is unmodified and •in full force ana effect (or, if there have been modifications, that the same are in full force and effect as modified and stating the modificatlons); (4) whether or not to CITY's knowledge LESSEE is in default and specifying the nature of such defaults; and (5) such other matters as Li=SSEE or the leasehold mortgagee may reasonably request. The LESSEE, within twenty {20) days after written request of i~Ii'r', will furnish a written statement, duly acknowledged, as to (1) whether the lease is unna odif ied and in f u; t force and effect (or, if there have been modifications, that the same are in iuli force ana effect as modified and stating the modifications); {2) whether there are anv default thereunder on the part of CITY to the knowledge of the LESSEE and specifying the nature •~: such defaults, if any; and (3) such other matters as c:ITY may reasonably request. ARTICLE XXXII FORCE M AJEU RE Either party hereto shall be excused frorn perforrnin~, ,ny of its respective obligati:. • or undertakings provided in• this lease, except as provided in Article :. '.;rs~r~oh 4 here..; FINAL _~~__ .~ 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 obli ations g ~- are prevented or delayed, retarded or hindered (plus such additional tune as mutually ~: consented to by the parties) by act of God, weather of unusual severity, fire, earthquake, ;~_ ~t 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, condemnation, public -, • requisition, laws, order of government 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 occurrence of such event; provided, however, that a party's inability to obtain and retain financing shall bP deemed a cause within the reasonable control of such party. ARTICLE XXXII! 'UAL EMPLOYMENT OPPORTUNITY AND NONDISCRI}.1I'`~ a~'rnr\r LESSEE shall noi~ discriminate against any em !o ee or a ~i i - ; ; o • P Y pj ~a t for _moioy„~~r.t because of race, color, religion, handicap, sex or national origin and shay! :ake ~u~~~ ~ affirmative action as may be required by federal, state, or local law, -;-dinance or ; eg~lat~ur, to assure applicants are employed and that employees are trPatea daring employment without regard to race, color, religion, handicap, sex or national origin. LESSEE will comply with applicable, provisions of Title VII of the Civil Rights Act of 1964, as amended, and anv other applicable federal, state; and local law, regulations and police relating ;o equal FINAL -78- ~. employment opportunity and affirmative action programs, including any such law, regulation, and policy heceinafter enacted. There shall be no discrimination as to race, sex, color, religion, handicap or national origin in the operations referred to by this Lease Agreement; and further, there shall be no ld~scrimination regarding any use, service, maintenance, or operation of the premises. ARTICLE XXXIV ADDITIONAL RESPONSIBILITIES 1. Dockage Agreements The LESSEE shall enforce rules and regulations in its Dockage Agreements as follows: A. Only vessels in good condition will be permitted in the dockage and mooring area. 8. Wet slips will be assigned by the dockmaster or his representative and no changes will be made without his permission. C. The LESSEE will be responsible for keeping the piers clear of atl •reh~cies. small boats, supplies and storage of any items except those that can be stored in the facility that may be supplied with the wet slip. D. The LESSEE will limit the number of vessels that can use each wet slip to one, except that one additional boat may also be berthed, provided it is ~, within the limits of the berth, and does not project beyond the pilings. E. The LESSEE shall obtain prior approval of the C::v ~tilanager as to the location, nature and type of all repair work that may be done at the wet slips. _ F. The LESSEE will enforce rules that prohibit the use of charcoal burners, open flame torches, and any other open flame-producing equipment. G. The LESSEE shall enforce rules -and regulations p:-rtaening *.~ r~;~ ~ae ~; TV sets, musical instruments, hailers, radios and other equipn;e;.t -;,~t ;-ar• create anuisance FINAL _~~_ H. The LESSEE shall enforce rules and regulations prohibiting the throwing overboard of any objects, such as garbage, xrash or human waste, and shall enforce other rules prohibiting swimming, recreational diving or fishing from the a-et slips. 2. Dockage Rates The LESSEE shall recommend dockage cares and rates for the use of other facilities ar~d services for approval by the City Manager. Dockage rates shall be generally consistent with those charged at other privately financed marinas of comparable quality situated on public lands in the State of Florida. 3. Rights of First Refusal/Options on Wet Slips The LESSEE shall submit, within ninety (90) days from and after the execution of this Lease Agreement, a plan for approval by the City ~ylanager for rights of first refusal and/or options for use of marina facilities so as to enable the City of ~Lliami Heach to integrate operation of the Marina with development of the uplands and other public uses. ARTICLE XXXV CONFLICT OF INTEREST ,; No stockholders, directors, partners, or employees of the LESSEE shall have ar,•; interest in any business which supplies the LESSEE with goods or services (other Shan for construction) on the Marina Site without advice to and consent of the City Manager; anaj LESSEE shall not otherwise exercise bad faith, or self-dealing which would subvert LESSEE'S obligations under this lease. FINAL _80- ARTICLE XXXVI - HOLDING OVER In the event LESSEE shall hold over after the expiration of t`tis Lease for any cause, such holding over shall be deemed a tenancy from month to month only at the same rental per month and upon the same terms, conditions and provisions of this lease, unless other terms, conditions, and provisions be agreed upon in writing by CITY and LESSEE; provided, however, nothing hereln set forth shall be construed to allow' LESSEE to hold over without the prior written consent of the CITY. ARTICLE XXXVII TIME IS OF THE ESSENCE Time is of the essence of each and all of the terms and provisions of this lease. „ ARTICLE XXXVIII 1. Leasehold Mortgage MISCELLANEOUS The term "Leasehold Mortgage" or " Original Mortgage" shall mean.a mortgage on the leasehold interest or personal property of LESSEE under this lease ir~, the Marina Site and shall be deemed to include any agreement or instrument under which L ESSEE's interest in this lease shell have been mortgaged. The term "Leasehold '~Aortbagc:: ' .~r "Original FINAL _81 _ ~, . Mortgagee" shah mean the mortgagee under any such Leasehold Mortgage, its successors and assigns approved by the City Manager, including the lender providing permanent financing. 2. Captions ~ The captions of this lease and the index preceding 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. 3. Gender of Words Words of any gender in this lease shall be held to include any other gender and words in the singular number shall be held to include the plural when the sense requires. 4. No Broker LESSEE represents and warrants that LESSEE did not deal w!th any real estate broker, agent or finder in connection with this lease so as to give rise to any liability on the part of CITY, and LESSEE shall hold and save CITY harmless from any and all claims or demands by real estate brokers, agents or finders with whom LESSEE deals r_onirary to the foregoin; i~: warranty and representation. S. Severability If any provision of this lease (other than those relating to (i) payment of rent and other sums or charges to CITY, (ii) to LESSEE'S possession of ,areas 1 and 2 and (iii) the date of . possession) or the application thereof, to any person cr cir•cumsrances sriall to any extent be invalid or unenforceable, the remainder of .his lease, or the application ::= ~,•c:n ;,.--•~-~isie~n to FINAL -82- ~, . persons or circumstances other than those as to which it 'is invalid or unenf arceable, shall not be affected thereby, and each provision of this lease shall be v~lia and 5e ~niorceabie ~r the fullest extent permitted by law. 6. Successors The covenants, agreements; terms, provisions and conditions containea to this lease i shall apply io and inure to the benefit of and be binding upon the (;ITY ana the LESSEE and their respective successors and assigns, except as expressly otherwise i~erein provided, and shall be deemed covenants running with the respective interests of the parties hereto. 7. Surviving Covenants Each provision of this lease which may require performance in any respect by or on behalf of either LESSEE, CITY or third parties alter the expiration of tt~e :er*-, hereof or it.5 earlier termination shall survive such expiration ~~r earlier termination. 8. Memorandum of Lease The parties hereto agree to prepare a short ;7~emorandum cif th:~~ lease suiTable fir filing so as to put third parties on notice as to the e.:istence of tl~iS '_~ use .7L-•°ement. .',:! recording fees, taxes and other expenses relating to the orantrnP of *i,a le~~-~~old rnierest and to the recording of such memorandum of lease shall be b~~rne e~riusi~ely c. ~i=SScF. 9. Interest In the event chat either party shall fail to „~aKe any payment ~~f monies ;_,. :he ~!z•.• that they are due under this lease (and unless a different rate of i~~terest i5 ~oeci:.~~ily ;tatedi. interest at the rate of one perce.m (i~oi over ;;r:,~ie ;;~r s;r~~::t; ~ ~ ~- . ,;~ ~ -~~: FINAL _,g ?_ ,, announced by The Chase Manahattan Bank y.A. cf Vew Yoi^k) shall be added thereon from the day that they were required to be paid under this Lease until the day such payment together with the appropriate amount of interest (computed in accordance with this subparagraph) is paid to the other party. 10.# Consent Where this Agreement requires that consent be given by either party, said consent shall not be unreasonably withheld or delayed. 11. Access Concerning Future Develoornent and Utilities CITY agrees to grant LESSEE, or appropriate public utility companies if : Pquested by LESSEE, rights-of-way (to be located so as to give said utilities and; or LESSEE as convenient access to the Marina Site as is practicable), without unreasonable interference with the use by CITY of its property; provided that the location of such access, ;nsofar as it affects any of the CITY's property within or outside of tine Ntarina Site, shall be approved in writing in advance by the City Manager; provided that such rights-of-way for a~~~ss rnav be granted by the CITY in its discretion only for the duration of the terra ~~i this i:ase .~r an}~ extension thereof; and provided further that LESSEE snail assume .::, -~•,hs. ,~ st; :;r ;;thc;- obligations imposed or incurred as a result of provrsicn of such arse ;~:. It is expressly understood that the i;1TY reserves :he right t:~ i~lst.~ll, or :~ aerm;t the installation, including the right to grant rights-of -viay to others, of utiiit;~ ~zrvrces ana other access (including over and to the baywalk) over, across. througi~, ~r- unoer t`~e ;vlsrina Site provided that such access shall not unreasonaorv interfere ~~::th LLSScE.~. +se ~~`_ t!-~e Marina Site as herein contemplated. This lease a~c~ .ill rigt~ta ,•~ :-.~F~ - ~,_ ~~ ~, FINAL _~q_ ,. . subject to all easements and rights-of-way now existing or reserved by or through CITY in, to or over the Marina Siie, as disclosed in Exhibit 8. 12. Definition of City Manager ~ Wherever the term "City Manager" is used herein it shall 5e deemed to include such 1 employees, representatives, or agents appointed by the City Manager to undertake the rights and obligations of the City Manager pursuant to tine provisions of this Agreement; and, City Manager, in his discretion, may obtain the approval of the City Commission prior to undertaking said rights and obligations. 13. Applicable Law The law applicable to this Agreement shall be that of the State of rlorida. 14. Definition of Substantial Construction The maximum construction or improvement required of LE55EE for "S~vsrantiai Construction" for the purposes of this Agreement shall be the lesser of (:) construction which has been commenced on Area 2, with wooden or other pilings for c:t .PGSI one pier driven in place for the northern breakwater or elsewhere, or the e•.~~~ivalent thereof. wit!'. forces sufficiently mobilized to complete construction on Area 1 within the schedule set forth in this lease; or (ii) construction defined by the governmental agenr_ies -eferreo to in Article VI hereof, including extensions of time for causes Beyond the control of .E~SEE. 15. Biscayne Street CITY agrees, in compliance with law, to u~~ its ~•-esr er:ort; ,,: ~_::.~.e -.•;,,-:.••-:N ~;.-~_et o the extent said closure does not result in public: incorwen~c~;i~•.~. FINAL _g 5_ ,. 16. Baywalk Maintenance ' Notwithstanding any provisions to the contrary, LESSEE shall 'nave ~o duty or obligation to maintain the Baywalk on or abutting Areas 3, 4, or 5 after CITY exercises its right to terminate as to Areas 3 and 4. ' •~RTICLE XXXIX ENTIRE AGREEMENT The Request for Proposal, Bid No. 54-83 (including the addendum :t~eretoi and LESSEE'S proposal in response thereto (which are incorporated herein this tease, excepting provisions therein which conflict with this lease) and this lease contain the enure agreement between the parties and shall not be modified in any manner excet-~t oy a.n instrument in writing executed by the parties or their respective successors or assigns in interes*. This Agreement upon becoming effective shall supersede ano annul anv a ~a ail iease~, management or rental agreements heretofore made or issued for all ter anv :part of the Marina Site between CITY and LESSEE, and any such leases, ~nana~ement ~~r rental agreements shall hereafter be void and of no effect. FINAL -~b- IN WITNESS WHEREOF, the parties, by and through'Xheir duly authorized representa- rives, have executed this lease in their respective names, alp as of the day and year first above written. Signed, sealed and delivered in the presence of: ~z'S~ "CITY" CITY Of h1IAMl BEACH, A Municipal Corporation ~~~~~~~: _ _~~p-~ By: :1r1AYOR ~~. Attest: _ CITY CLER The Miami Beach Redevelopment Agency hereby approves this lease agreement insofar s the Agency, as a separate and distinct entity, is affected o; obligated by the terms hereof and insofar as the Agency has regulatory control of the Marina Site pursuant to the provisions of the Community Redevelopment Act and/or certain licenses and permits which may oe held by said Agency for the construction, developrnent and operation of the Marina. ATTEST: ,`1IA;~~II t3EAC:H REDEVELOPMENT AC;ENCY (.AGENCY} ~~~Q~h.L //~f tr - _ B Y -,- 1 v ._---- - ~ - - - - - SECRETARY CHAII~,MAN 1 FINAL STATE OF FLORIDA COUNTY OF DADS: '~ On this ~L day of 1983, before me came Norman Ciment and Elalne Matthews to me known, who bet by me duly sworn, did depose and say that they are Chairman and Secretary, respectively of the Miami Beach Redevelopment Agency, which is a public agency organized and existing by virtue of the Community Development Act of 1969, Chapter _163 Florida Statutes, and which approved the foregoing instrument; that they know that the Agency duly approved the foregoing instrument by virtue of Resolution No. ~'~;~, a copy of which is attached hereto. NOTARY PUBLIC NOTARY PJBL14 S1AIk OI rIUKIUA A~ v.r,--- MY COMMISSION EhP I aE5 Stet 7 19 8 3 ATTEST: BONDED IF11tU CitNtWLL -I~u . ulvuEicwKl ~uiS STATE OF FLORIDA COUNTY OF DADS: GARNER-MASON ASSOCIATES, LTD. (LESSEE) GENERAL YARTNER BEFORE ME, the undersigned authority, on this day personally appeared -r~u~iN y~ MpSoN ,known to me to be the person whose name is subscribed to the foregoing instrument as General Partner of GARNER-~tiiASON ASSOCIATES, LTD. and acknowledged to me that he executed the same for the purposes and consideration therein expressed in the capacity therein stated and as the act and deed of the Association. GIVEN under my hand and seal of office this the ~. 1 uiy..c_ , 1983. \\J~ - ~ e NOTARY PUBLIC ' Notary Pub!'c, State of Florida st Lame My Cor:~mission Expires June 4. 1985 n~ as - day of FINAL _gg_ C 5 c w A "71 7 1 7 7 7 1 s -- m ~ !n r_ s zr- F :rr^ s n ~r i ~ ~ ' _ ' 31- f i ~ ~F s m o f f' - x ~ iE ` 1; ~ ~i - t~ii i ii+i r z ~ o ~ • r i ; ii ~ ~~ s f 7- =f .i = f l ^ ie ~: i• i ei =~_ ~ - fj - 1=is s s a _:t~ t T^ 's i = r W C C ~O ~'!\! D~ _. ~ '~/ O o~~~~G ~~ a, '~ c ~> ~, - AA < V c r ~\,i o I \sr e < I ~ ? srre 1' 1 if ! ~ 1---, ~ ~ /, :~ - ~i ~ ~ ~~\\ ~~. h SI re®r lttSOLZJTZON ti0. ~3.173lS 11 ~lOLOTION Ol TNL CSTY CO.hMZSSION O! ?!!F CZTY or .l21W2 ssACb, n,oRZD1- ~PltovZNC Aztc l1UTl;ORZZZNG rus sxscvrZON or zx~ LEA.SL: ;itGRtL~tT wzTb CARNLR- ~17~01i AiSOC211TES, LTD. 9'OR TliE COI~ISTRVC?ZOH AND :'J1N- 11GII'1Lli? O! A Mi11tI1~iA AND ~OIt7 STORAGY lJ1CZLZT7 IN TAL• iOL)TIt SbORt 1tSDSVLLOPMLI'PP ARtA. WKER=Ai. the City of tilami leach is desirous of leasing land for the coastruetioa and development ot•the tiiami Leaeb ~lariaa in order to aaxi:aise its we for a marina and seereational facility, offering dockage and other marina related cervices, !or the use of and !or tlu benefit of the general public: and MRZRLi1S, tae CTZ'Y bee solieitsd sad received proposals pursuant to the Cossuai~tY Redevelopment 11et sad pursuant to sad No. S4-i3 !or the least of the marina and Casper-;3asoa Assoeiatas, %td. bas duly. subaitted a proposal to finance, construct and operate a marina is accordance vitb the bid specitieations; and t~15, by sesolution, the City Commission, alter re- vieviriq t.~se proposals subsitted tos the marina, authorised and directed the City tla:sager to negotiate with Greer-'Lsoa associates. South Saose ttarina Joist Veatuse and frank Tolia in that ordsr; and wi~tEA>:115, tjse City sad Garner-lesson 1-ssoeiates, Ltd. anus successfully negotiated a lease agreement; sad ~~ ~RS11S, Garner-sessoa Assoeiatas,`Ltd. bas executed said Lease Agreement, vhieh Agreement does sot altar the municipal use of the psop:rty sad offers fair value to the:CZTY as consideration for this base; sad i71~REAS, Garner-:4asoa Associates, Ltd. has represented tisat it is both desirous sad capable of tiaanciisq, constructing sad opesatinq the taeilities at said marina: t70N, THIRtlORI, DE IT 1tESOLVT.a lY ?HL GZTY CO.~ltiZSSZON O!' T8L CZTY Of' llillM.t 1f.71C8 s That the City Coaaaissioa, pursuant to the Comssunity Redevelopment Act. approves sad authorises the execution of the Lassa Agreement vitas Greer-lSasoa Assoeiates,~ Ltd. !os flee •eon- struetioa sad managsssrnt o! a marina and dry, storage facility in the South ;'sore :~edevelopmeat area. P11SSED sad ADOPTL•'D this__ day of =, 193. (Signed) Moran CSsont MJIYOR ATTt ST: (SL1L) S rod Llaino ltiattl+evs ~~-~~. 4 FORM APPROYEO .u~:ro ~ ~ . LEGAL DEPT. Gl 33C ~ " ~_ ~.,L. ey ~~~-V~'iW ~„~ G • 1 S-F3