HomeMy WebLinkAboutMarina Lease
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MARINA LEASE
THIS LEASE is made this olwOday of January, 7002 ("Effective Date"), by and between
the panies named below. .
WIT N E SSE T H:
ARTICLE 1 - BASIC PROVISIONS AND DEFINED TERMS
(a) Landlord:
Miami Beach Marina Associates, Ltd.
(b) Landlord's Address:
300 Alton Road. Suite 303
Miami Beach, Florida 33139
Attention: R\)bert W. Christoph
(c) Tenant: .
Majes~y Enterprises of Florida, LLC, a Florida limited liability company
(d)
Tenant's Address:
1290 5lh StreeL, Miami Beach, Florida 33139
(e)
Tenant's Trade Name: "Majesty," "Majesty Cruises"
(f) Premises: The office space located in the 1290 5th Street building (the "Building")
or .he Marina (defined below) having a floor area of approximately 900 square feet Ohe "Office
t p'ace") (measured from the exterior surface or lease line of store fronts,o\.ltside walls or wall
fronting on service corridors and the' center of any common walls, and 220 linear feet of dock
space (the "Dock Space"), being outlined in red on Exhibit "A-I" attached hereto and made a
part hereof. The Office Space and the Dock Space are located on the land ("Land") and
improvements thereon commonly known as the Miami Beach Marina, which is legally described
on Exhibit "A" a~lached hereto and made a part hereof.
(g) Lease Tenn: Commencing on the later of the approval of this Lease by the City of
Miami ("City") or February 15, 2002 (the "Commencement Date") and continuing until
December 31, 2022, unless terminated earlier as provided herein. Provided the Tenant is not in
default hereunder, Tenant shall have the right Lo extend the Lease Term as provided in Article 33
below.
(h) Minimum Rent: in respect of each full year during the Lease Term, a minimum
guarantecd rental equal to S?jO,OOO ($300,000 for the Office Space and $60,000 for the Dock
Space) payable in advant't" in equal monthly installments of $30,000 commencing on the
Commencement Date. .
The Mipimum Rent shall be increased over the amount payable in ~he immediately
preceding Lease Y ~;:.r in the following manner (the "CPI Increase"): The base for computing the
adjustment shall be the most recent applicable base year Consumer Price Index ("CPT"), as
determined by Landlord for the greater Miami-Dade County, Florida area as published by the
United Statc!' :Jepartrnent of Labor which is published for the month nearest the first day of the
immediatel:: preceding Lease Year (the "Beginning CPT'). If the CPI published 'for the month
nearesl th<~ commencement of the applicable Lease Year (the "Currellt CPT") has increased over
the Begi.ming CPT, then the annual Minimum Rent for that Lease Year shall, be increased by a
ITacti'.;l. the numerator of which is the Current CPI and the denominator of which is the
Bcg;,ming CPl. Notwithstanding anything contained herein 10 Ihe contrary, at a minimum the
nn' .ual CFllncrease shall equal 2%.
In the event the CPT is changed so that the base year differs from that contemplated
herein, the CPI shall be converted in accordance with the conversation factor published by the
United Slates Department of Labor. If the cpr is discontinued or substantially revised, another
government index or computation or the index with which the CPI is replaced shall be used in
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orner 10 obtain essentially the ~;ime result as would hav~ be.en obtained if the CPI had not been
discof'.linued or revised.
Additional Minimum Rent in the amount of $180,000 ("Additional Minimum Rent")
shall be due for the first full month of the first Lel!se Year, as provided in Section 4a, but shall
nol be due and payabl(; for any other month during the Lease Teml.
(i) Prl.;entage Rent: $3.00 per passenger that boards the Vessel in excess of the
Passenger Mini'r~lum for any Lease Year.
U) Passenger Minimum: 120,000 passengers that board the Vessel, which may be
adjusted ~.~ provided in Section 6 (h) below.
(k) Tntentionally qeleted.
(1) Pennitted Use: Ancillary ticketing facility, office space and dockage for the
V'~5sel provided the Vessel is able to safely dock in 220 linear feet of space. The Vessel shall
~rovide day and evening cruises including dining, dancing, entertainment, special events and
casino gaming in international waters. Tenant may also operate a small gift shop selling cruise
related items containing the Tenant's trade name or logo such as hats, T-shirts, glasses, playing
canIs, etc. provided the sale of such items does not violate any of the restrictions set forth in
Section 6(b) below.
(m) Operating Hours: The Vessel shall have at least two cruises daily and twelve
cmises per week (weather and seas pennitting), exclusive ofthe days the Vessel is out of service
for repairs or in dry dock, which number of days for repair and service shall not exceed :30 days
in any Lease Year (the "Repair Period"). There shall be a minimum of two (2) hours between
debarkation and embarkation of subsequent cruises scheduled between the hours of 9:00 a.m.
and 9:00 p.m. A shorter tumllTound time shall be permitted for late evening cruises provided the
debarkation and embarkation of passengers are operated safely taking into account the needs of
passengers and other tenants ~t the Matina. A shorter turnaround time may be permitted for
special events planned by Tr.r.dnt with the Landlord's prior written approval.
(n) Common Area Maintenance Charges: $3,000.00 per month for the first Lease
Year. After the first Lc:ase V ear, the charge shall be increased as of the first day of each
successive Lease Ye:il by the CPT Tncrelise.
(0) "B\.Iilding Facilities" shall mean and include all equipment, machinery, facilities
and other persdllal property located in the Building and/or used or utilized wholly or partially in
or in connection with the operations and/or maintenance of tile Marina or any part thereof.
(p'i "Land" shall mean the real estate described on Exhibit A-I attached hereto and
made a part hereof.
(q) "Rent" shall mean Minimum Rent, Tax payments, Common Area Maintenance
C1.11rges, utility charges and all other amounts due from Tenant hereunder.
(r) "Marina" shall mean the Miami Beach Marina filcility, including but not limited
to the Building, Land, Common Areas, Building Facilities, piers and dock masters office located
at 300 Alton Way, Miami Beach, Florida.
(s) "Vessel" shall mean the "Majesty" of United States registry, which is
approximately 165 feet in length and will be licensed with the United States Coast G'uard to carry
at least 450 passengers plus crew or such other vessel of at least the same size lInd capacity as the
Majesty and otherwise r~bly acceptable to Landlord._ Vessel shall also mean any other
vessel or vessels owned, managed or operated by Tenant which uses the Miami Beach Marina
for any of the Pennitted Uses hereunder. '
Each of the foregoing basic 'provisions and defined terms shall be construed in conjunction' with
and limited by the references thl.'r~to in the other provisions ofthis Lease. .
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l\RTTCLE 2. GRANTfNG CLAUSE
Landlord, in consideration of the obligation of Ten ant to pay Rent as herein provided and
in consideration of the other terms, covenants and conditions hereof, hereby demises and leases
to Tenant and Tenant hereby rents and takes fro~ Landlord the Premises, TO HAVE AN? TO
HOLD the Premises for the term specified in paragraph (g) of Article I, unless sooner termmated
as herein provided, all upon the terms and conditions and subjecL to the limitations restrictions
and reservations herein provided.
. The purpose of attaching composite Exhibit "A" to this Lease is (0 show the approximate
location of the Premises and other improvements constituting a part of the Marina, but Landlord
reserves the unrestricted right at any time to relocate the Common Areas (as defined in Article
8), expand areas within the Marina and to otherwise alter or modi fy the Marina.
Notwithstanding the relocation of the Common Areas or other alteration or modification of the
Marina, Landlord shall provide pedestrian access to the Premises and the number of Parking
Spaces required in Article 29.
Tenant shall. receive by virtue of this Lease only the rights and privileges herein
specifically granted andlor leased to Tenant, and Landlord specifically reserves and excepts unto
itsel r, without limiting the generality of the foregoing, (i) the exclusive use of the roof of the
Building (including, witllout limitation; the installation of antennae, signs, displays, equipmcnt
and/or other objects, as well as the right to construct additional stories if Landlord so elects,
exterior walls, and the area above and below the Premises and (ii) the right to placc in the
Premises (above ceilings, below floors or next to columns and in such manner as to reduce to 8
reasonable minimum the interference with Tenant's use of the Premises), utility lines, pipes and
the like to serve premises other than the Premises and to replace and maintain and repair such
utility lines, pipes and the like in,'over and upon the Premises as may have been installed therei~.
Notwithstanding anything contained in this Article to the contrary, the Tenant
Dck.nowledges that two residential condominium buildings are in the process of being constructed
(or are contemplated to be constructed) at the Marina or adjacent thereto (the "Construction").
Tenant further acknowledges that in connection with the Construction the Building will be
demolished. Prior to the demolition of the Building, the Office Space may be re-Iocated to a
temporary location and upon completion of all of the Construction, the Tenant may be relocated
again to permanent Office Space on the first floor of the parking facility for the last of the two
newly constructed condominium buildings at the north end of the Marina. Prior to each
relocation, Landlord shall provide written notice thereof to Tenant (the "Relocation Notice") at
least 90 days prior to Tenant's required relocation date. All references in this Lease to
"Building," "Office Space" and "Premises" shall, to the extent applicable, refer to the Office
Space and the Building then being occupied by Tenant llnd shall also, where applicable, refer to
the Building and the Office Space previously occupied by Tenant. Tenant shall not be entitled to.
any Rent reduction or other co~cession in connection with the anticipated relocations; Tenant
expressly acknowledges that the relocations 3re a required condition of this Lease and that
Landlord would not have entered into this Lease but for Tenant's agreement to relocate as
provided herein. Any relocation space for the Office Space shall be at least 850 square feel. The
Minimum Rent for the Office Space shall not be increased unless the size of the Office Space is
in excess of9S0 square feet and then it will be increased on a per square foot basis for any square
feet in excess of 950, at the rate of $35.00 per square foot as Minimum Rent and $4.50 per
square foot for Common Area Maintenance Charges, each sum as increased by the CPI Tndex
from and after the first Lease Year of the Lease Term of this Lease. Furthermore, for each new
space that the Tenant is relocated to, Landlord shall only be obligated to deliver to Tenant a
"va.nilla box" space (and not necessarily in the same condition as the original' Premises is
delivered to Tenant) and Tenant shall, at its sole cost and expense, be responsible for
constructing any desired improvements or allerations to such space, in accordance to the terms
and conditions or Article 3. For all purposes hereof a "vanilla box" shall mean that the building
she.11 for the Offi::e Space has been completed (walls and floor), electric and phone lra~smission
mams and condUIts have been brought to the Office Space for distribution throughout the space
by Tenant, and air conditioning and fire sprinklers are installed in the Building to serve the
Office Space in compliance with the minimum requirements of applicable law. The Buiiding in
which the "vanilla box" will be located shall also contain a common bathroom facility which
meets the minimum requirements of applicable Jaw.
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AH. T1CLE 3 - ACCEPTANCE AND CONSTRUCTION OF PREMISES
(a) Landlord's Work. Tenant acknowledges thaI Landlord is only r:quired to deliver
to tenant a "vanilla box" space and that Tenant is solely responsible for making any required
improvements thereto. Landlord shall have no obligation to repair, alter, improve or perform any
work in' or to the Premises prior to delivery thereof to Tenant. Tenant acknowledges that the
Premises are ready for delivery to Tenant for the completion or Tenant's Work (as defined in
paragraph (b) below) and Tenant accepts the Premises in its existing condition without any
representation or warranty as to Llie condition of the Premises.
(b) Completion of Tenant's Work, Except as set forth in Section 3(c) below, all
improvements within the Premises (collectively, the "Tenant's Worktl) shall be completed by
Tenant or Tenant's designated contractor in accordance with plans and speci lications that have
received Ll1e prior written approval of Landlord and the City. The approval by Landlord of plans
and specifications shall not constitute the assumption of liability by Landlord or ilS agents or
employees for their compliance or conformity with applicable building codes and lhe
requirements of this Lease, and Tenant shall be solely responsible for such plans and.
specifications. In addition, the approval by Landlord of any plans and specifications shall not
constilute a waiver by Landlord of the right thereafter to require Tenant to amend them to
provide for any corrections or omissions by Tenant. of items required by building codes or
regulatory or govemmental authorities or the Lease which are later discovered by Landlord.
Landlord's consent may be predicated upon Tenant using contractors acceptable to Landlord, and
upon Tenant's furnishing of acceptable payment and performance bonds. Tenant shall "bear" the
cost of all Tenant Work including the cost and expense of filing such plans and specifications
with the appropriate governmental agencies. Included within Tenant's Work shall be all utility
hook-ups and street lighting upgrades necessary for Tenant to conduct is business' from the
Premises or dock the Vessel in the Dock Space as well as other improvements or mOdificatioJ\s
to the Premises and any fees paid to any contractor or subcontractor, mechanical, electrical or
HV AC engineering consultants, decorating or special design consultants shall be borne by
Tenant. Tenant shall be required to obtain all appropriate governmental permits and approvals at
Tenant's expense prior to commencement of Tenant's Work. Once Tenant has commenced
Tenant's Work, Tenant shall diligently pursue such work to completion and, in any event, shall
complete Tenant's Work within 90 days after the Commencement Date or the date of relocation
of the Office Space, as applicable. Failure to timely complete Tenant's Work shall be deemed a
default by Tenant under the terms of this Lease. Tenant's Work shall generally consist of:
painting, carpeling, installation of a phone reservation system and computers, and construction of
non-structural demising walls.
(c) Electrical Power Source Near Dock Soace. To the extent permitted by law and
the City, Landlord shall, at Tenant's sole cost and expense, install a 150 amp, 240 volt, 3 phase
electrical box (the "Dock Electrical Box") in or adjacent to the Dock Space. Prior to the
commencement of construction of the Dock Electrical Box, Landlord shall provide Tenant with
an estimate for the cost of the same. If the estimate is acceplable to Tenant, it will authorize
Landlord to commence construction of the Dock Electrical Box. If the estimate is not acceptable
to Tenant, Landlord shall not be required to construct and install the Dock Electrical Box as
provided herein. Within 10 days after the Landlord provides Tenant with a written invoice for the
costs and expenses incurred by Landlord to obtain and install the Dock Electrical Box, Tenant
shall reimburse Landlord the cost of the same, even if the actual cost is in excess of the estimate,
and such sum shall be deemed Additional Rent due hereunder. Tenant shall contract directly
with the utility provider for the eiectrical power service to the Dock Electrical Box and shall pay
to have the Dock Electrical Box separately metered.
(d) Delivery of Premises. Tenanl shall have no right to enter or occupy the Premises
until the same are tendered by Landlord.
ARTICLE 4 - RENT
(a) Minimum Rent. Tenant shall pay to Landlord, at such place as shaH be designated
from time to time for nolices to Landlord without any prior demand therefore and without any
deduction or set-cffwhatsoever, monthly Minimum Rent due in advance on the first day of each
month during the Lease Term. If the Commencement Date does not start 0:1 the first of the
month, the Minimum Rent shall be prorated on a per diem basis. For the first full month of the
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lirst Lease Year Tenant shall pay'to Landlord Minimum Rent in the total amount of $210.000
(the $180,000 Additional Minimum Rent and the 30,0000 monLhly Minimum Rent). The
Minimum Rent and Additional Minimum Rent shall be payable to Landlord within one business
day a fter approval of this Lease by the City. For the purposes or calculating the cpr Increase
lor any Lease Year the Additional Minimum Rent of $180,000 shall not be included in such
calculation. For example, for the Second Lease Year the annual Minimum Rent sha!.1 equal
$360,000 mulliplied by the greater of the cpr Increase or 2%. .
(b) Percentage Rent. Tenant shall pay to Landlord for each Lease Year $3.00 for
each passenger in excess of the Passenger Minimum (the "Base Amount") for each Lease Year,
payable monthly on the first day of each month when the Base Amount for the applicable Lease
Year is exceeded. For purposes of calculating the Passenger MinImum, employees and crew of
Tenant sha1l not be oounted as "passengers."
(c) Additional Rent. Arty other sums payable by Tenant to Landlord hereunder shall
be payable as "Additional Rent" hereunder.
(d) Sales and Use Tax. Each payment of Rent due hereunder shall be accompanied
by a )>ayment of any and all applicable Rent tax in the amount required by Miami-Dade County,
tne Slale of Florida, or any other applicable governmental authority. At the time of execution of
this Lease the sales tax is equal to six and one halfpercent (6.5%) oflhe amount of each payment
of Rent. This amount is subject to change by Miami-Dade County, the Stine of Florida or any
olller applicable governmental ;mthority, and Landlord shall notify Tenant and Tenant shall be
liable for any change in this percentage amount.
(e) DelinQuent Rent. Tn the event any Rent is not received within ten (J 0) days after
ils due date for any reason whatsoever (including, without limitation. the payment of Minimum
Rent and the paymenl of Percentage Rent), it is agreed Ihat Ihe amount thus due shall bear
interest a.t the lesser of 18% per annum or the highest lawful rale, such interest to accrue
continuously on any unpaid balance due to Landlord by Tenant until Tenant shall have paid all of
sllch unpaid balance plus the interest that has accrued thereon. Any such interest shall be payable
as Additional Rent hereunder, shall not be considered as a deduction from any other payments of
Rent and shall be payable immediately on demand.
If Tenant fails in two consecutive months to make Rent payments within ten (10) days
after dlle, Landlord in order to reduce its administra.tive costs, may require, by giving writlen
notice to Tenant (and in addition to any interest accruing and any other rights and remedies of
Landlord) Minimum Rent be paid quarterly in advance instead of monthly and that all future
Rent paymenls are to be mace on or before the due date by cash, cashier's check or money order,
and that the delivery of Tenant's personal or corporate check will no longer constitute a payment
of Rent as provided in this Lease. Any acceptance ofa monthly Rent payment or ofa personal or
corporate check thereafter by Landlord shall not be construed as a subsequenl waiver of said
rights. Tenant shall pay 10 Lar.dlord an administrative fee of $250.00 for any check made by
Tenant and returned by Landlord's bank whether for "insufficient funds", "stop payment" or
otherwise.
. (f) Definition of Lease Year. Lease Year means the period from the Commencement
Date through the last day of the 12th full monlh after the Commencement Date and thereafter
each successive twelve (12) month period. The last Lease Year of the Lease Term shall end as
of December 31,.2002.
(g) Minimum Rent Abatement. Notwithstanding anything herein to the contrary,
provided Tenant is not mherwise in default 'under this Lease, Tenant shall not be obiigated to pay
any Minimum Rent for the "last six months of this Lease", which "last six months of this Lease"
shall mean the last six months oflhe lasL Option Term exercised by Tenant or if Tenart fails to
exercise any Options to Extend as provided in Article 33 hereof, July I, 2022 through and
including December 31, 2002. In the event Tenant defaults hereunder and Land lord incurs any
cost or expense incurred in connection therewith, and Tenznt fails to timely reimburse Landlord
for the same, Tenant shall be obligated to pay all Rent due hereunder for the "last six months of
the Lease".
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ART1CLE 5 - RECORDS AND STATEMENTS
(a) Passenger Records. Each day Tenant shall provide Landlord with a copy 0 r the
passenger manifests for all cruises the prior day and copies Of811 reports pertaining 10 passengers
that board the Vessel filed with any governmental agency or entity, (e.g. Unitcd States Coast
Guard. United States Customs) (collectively, the "Passenger Records") which Passenger Records
shall be cer1ified as being true and correct by the captain of the Vessel or other officer of Tenant
reasonably acceptable to Landlord. All Passenger Records shall be retained and presen'ed by
Tenant for at least 24 months after the end oft11e Lease Year to which they relate, and shall be
subject to inspection of audit by Landlord and its agents at all reasonable times.
(b) Quarterlv and Annual Financial Statements. Within 30 days after the end of each
calendar quarter and 90 days after the end of each year, Tenant shall furnish to Landlord the'
financial statements of Tenant for such quarter or year, which Financial Statements shall be
maintained in accordance with generally accepted accounting principles. The annual financial
statements must be audited by a certified public accountant.
(c) Failure to Submit Statements. If Tenant omits to prepare and/or deliver promptly
any statements or olher information required to be deliyered under this Article or Landlord has,
reason to believe that Tenant is violating the radius restriction contained in Section 6(i) below,
Landlord may, in addition to exercising any of the remedies provided to Landlord under this
Lease audit all of Tenant's books and records relating to its business operations. Such audit shall
be made and such statement or statements shall be prepared by a public accountant to be selected
by Landlord. Tenant shall pay all expenses of the audit and other services. IfLandlord's purpose
or the audit is because Landlord believes that Tenant is violating the radius restriction (and not
because of Tenant's failure to timely prepare or deliver said infolmation), Tenant shall not be
obligated to reimburse Landlord the cost oflne audit ifthe'audit does not reveal any violation or
improper information submitled by Tenant.
(d) Confidentiality of Tenant Financial Records. Except for any copies of already
disseminated information, Landlord shall use commercially reasonable efforts to keep
confidential any information concerning Tenant's business and affairs that Landlord may receive
pursuant to this Lease and will not disclose any such information to the public or any competitor
of Tenant; provided, however, Landlord may utilize the information for the following purposes:
(i) Landlord's financing, (ii) furnishing such infonnation to any govemme)1tal entity, agency or
organization or to any holder of a ground lease related 10 the Marina, (iii) furnishing such
information to any court, person, agency or organization as a result of litigation, (iv) furnishing
such information to any prospective bona-fide purchaser of Landlord's interest in the Marina,.(v)
furnishing such information to any attorney, accountant, or professional consultant of Landlord
and (vi) as required by law.
AR rrCLE 6 - USE AND CARE OF PREMISES
(a) !Jg;. The Premises shall be occupied and used only for the purposes set forth in
Article I and for no other purpose whatsoever. Without limiting the generalilyof the foregoing,
Tenant shall not use the Premises, nor permit same to be used, for the manufacture, sale, barter .
or trade of beer, wine, alcohol or other intoxicating liquors of any nature whatsoever, as the same.
shall be defined under the statutes of the United States or the Slate of Florida unless and except
as specificaily stated herein. Tenant shall not conduct or permit to be conducted within the
Premises any fire, auction, "going out of business", bankruptcy sale or similar sales or operate or
pennit to be operated with the Premises a "wholesale" or "factory outlet" store, a cooperate store,
a "secondhand" store, a "surplus" store, a store commonly referred to as a "discount house" or a
store in which customers purchase memberships. Tenant shall not advcr1ise that it sells its
products or services at "discount", "cut-price" or "cut-rate" prices. Tenant shall comply with all
applicable Jaws, ordinances, rules and regulations of any governmental entity or agency having
jurisdiction over the Premises. Notwithstanding the foregoing, provided Tenant comp~ies with
all applicable laws, Tenant may sell food and beverages on tile Vessel for consumption by
passen!?ers on the Vessel and Landlord shall not have the right to restrict any ~enu items.
(b) Restrictions on Use of Premises. Tenant shall not:
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(i) permit any unlawful or immoral practice 10 be carried on or
committed on the Premises;
(ii) make any use or allow the Premises to be used in ~ny m~nn~r or
for any purpose that might invalidate or increase the rate of insurance on any policy malOlamed
by Landlord;
, (iii) keep or use or permit to be kept or used in the Premises any
inflammable nuids, explosives or other materials deemed dangerous by Landlord or Landlord's
insurance carrier without obtaining the prior written consent of Landlord, which consent may be
withheld in Landlord's sole discretion;
(iv) use the Premises for any purpose which might create a nuisance or
injure the reputation of the Premises, Landlord?r the Marina;
(v) deface, or injure the Premises or any part the Marina;
(vi) overload the floors in the Premises;
(vii) commit or suffer any waste in or about the Premises;
(viii) permil any objectionable or unpleasant odors to emanate from the
Premises;
(ix) place or permit any radio or television antennae, loud speakers,
sound broadcasting equipment or amplifiers on the outside of the Premises or where the same.
can be heard or seen outside the Premises without Landlord's consent, which consent. may be
withheld in Landlord's sole discretion;
(x) place any awning or other projection on the exterior of the
Premises except as specifically approved in wriLing by Landlord. Tenant further agrees that if
Landlord permits it to install awnings, said awnings shall only be of the same design, color and
quality of material as specified by the Landlord for the Building; and further agrees to maintain
and keep said awnings in such state of repair llnd renew same at intervals not greater than three
years each. 'so that they present a first-class appearance at all times. If Tenant neglects and does
not maintain or replace awnings as deemed necessary by the Landlord, it is agreed by both
parties hereto that Landlord shall have the right, but not the obligation, after giving Tenant five
days' written notice, to order awnings repaired, replaced or renovated, as is deemed necessary by
Landlord, and to charge the cost of same to the Tenant, said cost shall qe acded 10 and
considered additional Rent, due and payable together with the next monthly installment of
Minimum Rent. Tenant agrees it shall not install equipment o(any kind on the exterior of the
Premises without the prior written approval of Landlord and that Tenant shall assume and agree
to pay for any and all damage resulting from said installation, removal or maintenance or lack of
maintenance thereof;
(xi) use any parts of the Marina other than the Premises for sale or
display of any merchandise or for any other business purpose or for public meetings or for
entertainment, without the previous written consent of Landlord which consent may be withheld
in Landlord's sole discretion;
(xii) display or sell merchandise or allow carts, portable signs or
devices or any other objects to be stored or to remain outside the defined exteripr walls and
permanent doorways or storefTOnt of the Premises, and Tenant shall not solicit in any manner in
any of the automobile parking facilities or Common Area.
Tenant shall pay to Landlord, as additional Rent, any increase in the cost of insurance on l.he
Sui Iding, the Marina, or any improvements located therein as a res1Jlt or any unauthorized use of
the Premises by Tenant, but such payment shall not constitute in any manner a waiver by
Landlord of its right to enforce all of the covenants and provisions of this Lease, including, but
not limited to, the provisions of this Lease requiring that the Premises be used only for the
purpose set forth in Article I.
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(c) COlTlpliance with Laws. Tenant shall promptly comply with all laws, ordinances,
orders and regulations arrecti:1g the Premises and the cleanliness, safely, operation anc use
thereof and with the recommendations of any insurance company, inspection or rating bureau or
simi lar agency, public or private, pertaining to the use and occupancy of the Premises or
insurance- ratcs applicable to the Premises. Tenant sha1\ maintain all required licenses, permits
and governmental approvals for the operation orTenant's business and upon request of.Landlord,
deliver true and correct copies thereof to Landlord, Tenant shall pay particular attenl10n to any
applicable noise ordinances and while the Vessel is docked in the Dock Space Tenant's use orthe
Premises shall not unreasonably interfere with the use of the Marina by other Marina tenants,
especially at night. Landlord acknowledges that Tenant intends to have a live band or other
music on the Vessel while in the Dock Space; however Tenant shall not be permitted to play
amplified music outside the Vessel after 9:00 p,m. while the Vessel is in the Dock Space. .
(d) Exclusive Use. Provided Tenant is not in default h~reunder during the Lease
Term and any Options to Extend exercised by Tenant, Tenant shall have the exclusive right to
operate a Vessel at the Marina for the purposes of dinner cruises and casino gambling in
international waters.
(e) Signs and Advertisements: Display Windows. No sign, advertisement, display,
notice or other lettering shall be exhibited, inscribed, painted or affixed on flny part of the outside
or Ihe Premises or inside, jfvisible from the outside (including but not limited to, signs, affixed
to Ihe exterior or interior surface of the plate glass in the store front or the Premises), the
Building, or the Marina except with the prior written approval of Landlord. which consent may
be withheld in Landlord's sole discretion. All such signs, displays, advertisements and notices of
Tenant so approved by Landlord shall be maintained by Tenant in good and attractive condition
at Tenant's expense and risk. Tenant, at its sole cost and expense, shall be required to obtain any
necessary governmental approvals. permits or the like in connection with such signage, including
but not limited to, the City. Tenant shall include the address and identity of its business activities
in Ihe Premises in all advertisements made by Tenant in which the address and identity of any
similar local business activity of Ten ant is mentioned and shall not divert from the Premises any
business which normally would be transacted there. Use by Tenant in advertising, letterheads or
otherwise of the name of the Marina or pictures or drawings of the Marina or the Building, or
any distinctive trade name or trademark used by Landlord shall be subject (0 such reshictions
and regulations as Landlord may prescribe from time.to time, in its sole discretion.
Subject to: (i) compliance with all applicable laws and regulations and (ii) Tenant
obtaining all necessary approvals, permits and consents from the City, all applicable
governmental authorities and any other interested persons, Tenanl. at its sole cost and expense,
shall have the right to install one sign on the exterior of the Building (and any building to which
Tenant is relocated during the Lease Term and any extensions hereof (lhe "Exterior Sign"). The
size of the Exterior Sign shall be in proportion to the renLable square footage of the Office Space
compared to the rentable square footage of the entire Building in which the Office Space is
located and the Tenant's right to the Exterior Sign provided herein shall not diminish the right of
an other existing tenant or future tenant in the Building to obtain an exterior sign on the Building.
The design, construction and placement of the Exterior Sign by Tenant must be uniform in nature
with other exterior signs on the Building and be aesthetically pleasing. Landlord shall have the
right (0 reasonably review and approve the plans and specifications for the Exterior Sign prior to
submission to any governmental authority and shall also have the right to approve any changes to
the plans and specifications required by such governmental authority. Tenant shall be responsible
for maintaining, repairing and insuring the Exterior Sign throughout the Lease Term and any
extension hereof. Tenant shall, at its' sole cost and expense, also be responsible for r;emoving the
Exterior Sign and the end of the Lease Term or any Option Term, if exercised by l'enant (or any
early termination hereof) and restoring any damage caused by the removal of the same. If
Tenant faits to timely remove the Exterior Sign, Landlord shall have lhe right, bet not the
obli~~tion 10 remove the same, restore any damage caused thereby. and charge T,enant. as
Addlllonal Rent hereunder, the: cost of the removal and the restoration plus a 1 O'Yo administrative
fee. TenanL's inability to obtain the necessary permits. approvals or consents for the Exterior
Sign shall not entitle Tenant to terminate this Lease, seek a reduction in Minimum Rent or obtain
any other concessions from Land~ord. The parties acknowledge that the Tenant's ability to install
the Exterior Sign is at Tenant's sole risk. The obligations of Tenant under this Article of th::
Lease shall survive any expiration or termination hereof.
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Without limiting or otherwise affecting the other provisions of this Lease whereby Tenan!
agrees ~ot to perform certain acts without the prior written consent of Landlord, Tenant
specificRlly covenants and agrees lhat, excepl for signs and lighting permitted in accordance with
Landlord's regulations and pursuant to the requirements set forth in Ihe preceding paragraph.
Tenant shall not (i) paint, ~\ecorate or make any other changes to the exterior of the Premises or
(ii) install any exterior lighting or awnings, or any exterior signs, advenising maller, decoration
or painting in or upon th..: Premises, (iii) install any drapes, blinds, shades, screens or other
coverings on the exterior windows and/or doors of the Premises, (iv) affix any window or door
lettering, sign, decoration or advertising matter on any window or door lettering,. placards,
decorations or advertising media of any type which can be viewed from the extencr or Lhe
Premises without the written consent of Landlord first had and obtained in each case. Tenant
shall kee~ all signs installed in or on the Premises in good condition and in proper operating
order at all times.
Recognizing that it is in the interest of both Landlord and Tenant to have regulated hours
of business for the retail areas,. Tenant shall keep any display windows of th~ Premises
electrically lighted for such periods of time as (i) at least until midnight each day, including
Sundays and holidays or (ii) during such business hours as Landlord shall set by notice to
Tenant, whichever is the latest; provided, however, that Tenant shall keep such windows lighted
during such shorter periods as Landlord shall designate in keeping with any energy conservation
methods or such time periods as may be designated by applicable govemmental regulations.
(I) Care of Premises. Tenant shall take good care of the Premises and keep the same
free from waste, rodents and insects at all times. Tenant shall participate at its expense in any
joint or coordinated extermination efforts of Landlord WiUl respect to the Marina or Lhe Common
Areas and/or other tenants or occupants of the Marina and, in any event, Tenant shall keep the
Premises free of pests and rodents and employ extermination selVices for the Premises at least
once per year. Tenant shall keep the Premises, and sidewalks, serviccways, loading llr~as (if any)
adjacent thereto neat, clean and free of dirt and rubbish at all times, and shall carefully store in an
orderly manner all trash and garbage within the Premises. Tenant shall arrange for regular pickup
of Tenant's trash and garbage, in accordance with tlie rules and regulations promulgated by
Landlord as in effect from time to time, at Tenant's expense.
Receiving and delivery of goods and merchandise and removal of garbage and trash shall be
made only in the manner and areas prescribed by Landlord. and at times prescribed by Landlord.
Tenant specifically agrees not to use any loading areas specifically designated for use by any
other tenants Dr occupants of the Manna. Tenant shall not operate an incinerator or bum trash or
garbage within the Manna. In the event Landlord provides or causes to be provided pickup
service for trash and garbage for all or some of the tenants in the Marina, Tenant agrees to utilize
such service. The cost of Tenant's use of such ~ervice shall be bome by Tenant. Tenant
acknowledges thai Landlord currently provides a trash pickup service for the Premises and the
Vessel and that Tenant shall pay Landlord, as Additional Rent, the sum of $2,800 per month,
plus applicable sales or use tax due thereon, on the 1st day of each month during the Term.
Tenant agrees to pay any increase in such cost of such service upon receipt of notice from
Landlord. Tenant acknowledges that trash pickup service provided by Landlord is at Landlord's
sole election and may be discontinued by Landlord at any time upon written notice to Tenant.
(g) Electrical Eauioment. Tenant shall not install any electrical equipment wl1ich
overloads lines in or to the Premises or the Vessel at the Marina. In connection with the
installation or use of any electrical equipment, Tenant shall at Tenant's own expense. make from
lime to 1ime whatever changes are necessary to comply with the requirements of the insurance
underwriters or insurance inspectors designated by Landlord or Landlord's insurance carriers or
governmental authorities having jurisdiction over the Premises or the Vessel. Tenant agrees not
10 use any electrical equipment containing a heating element unless same is connected and
operated in compliance with the underwriters, specifications.
(h) Operation. Tenant shall keep the Premises open for business and diligently
operate the business conducted therein at least during the Operating Hours as specified in Section
I (m). Tenant shall conduct Tenant's business at an times in a first class, high-grade manner
consistent with reputable' business standards and practices in good faith. Tenant shall operate tIle
Premises under the trade name designated in Article] unless Landlord consents in writing to the
use of another trade name in connection with such business. In the event the Tenant fails to
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provide lhe number of cruises for any period of time in excess of the Annual Repair Period as
provided. in Section 1 (m), the Passenger Minimum shall be decreased by 5,000 passengers far
each fifteen days Lhe Tenant fails to operate its business. For example, if the Tenant has
oLherwise used the Annual Repair period for a particular Lease Year and the Tenant fails to
operate cruises from June IS-July 15, the Passenger Minimum shall be reduced to 110,000 for
that Lease Year. ~f the Tenant has not used any of the days in the Annual Repair Period and
Tenant fails to operate cruises from Apri115-August 1, the Passenger Minimum shall be reduced
10 95,0000 for that Lease Year (5,000 for each of the five IS day periods after the application of
(he Annual Repair Period).
(i) Radius. Except for such operations in existen~e as of the date hereof, Tenant shall
not directly or indirectly engage in or own or operate any business similar to that authorized to
be conducted hereunder, or use the same or similar trade name in connection with the charter or
operation of any other vessel or vessels in Miami-Dade County, Florida during the Lease Term
and any extension of renewal thereof; provided, however, that nothing herein shall be construed
to prevent the continued operation of Tenant's business within such radius existing on the date
hereof. In the event Tenant shall engage in any such business in breach of this section of the
Lease, Landlord shall have the right to elect to include the number of passengers carried by any
vessel owned or operated by Tenant in such area in the number of passengers used to calculate
Percentage Rent due hereunder as though such passengers had been on the Vessel.
G) Promotional Activities. Tenant may elect to participate "with other tenants of the
Marina in promoting the use of trade names and slogans as may be adopted for the Marina and in
promotional and advertising campaigns. ~f Tenant so elects, Landlord will establish an
advertising and promotional service to provide from time to time professional advertising and
sales promotions which, in Landlord's judgment, will benefit the tenants of the Marina. In
conjunction with such service, Landlord shall have the exclusive right to hire a marketing
director and such staff as Landlord deems necessary La carry out the purposes of the service. If
Tenant elects LO participate, Tenant agrees to make pro rata contributions toward the promotional
and advertising service which amounts shall be deemed Addnicnal Rent for purposes of this
Lease.
(k) Rules and Rellulations. Tenant shall comply with all of the rules and reg:llations
pertaining to the Marina and businesses operated therein promulgated by Landlord from time to
time. The rules and regulations in effect on the date of execution of this Lease, if any, are set
forth in Exhibit "B" attached hereto and made a part hereof. Landlord may amend, modify, delcte
or add additional reasonable rules and regulaLions and Tenant shall comply with all such
amended, modified, or additional rules and regulations upon notice to Tenant from Landlord or
upon the posting of same in such place with the Marina as Landlord may designate. In the event
of any breach of any rules and regulations herein set forth or any amendments or additions
thereto, Landlord shall have all remedies in this Lease provided for default or Tenant.
(I) Marina Name. Landlord reserves the right at any time to designate a name for tlle
Marina, change the name of the Marina and to change the address or designation of the Premises.
ARTICLE 7 - UTILITIES
(a) Utilitv Service Lines. Landlord agrees to cause to be provided the necessary
mains, conduits and other facilities necessary to supply water, "(and any relocated office space),
electricity, telephone service and sewage service to the Premises in accordance with and subject
10 the provisions of this Lease.
(b) Utili tv Service Charll.es. Tenanl shall promptly pay all charges-for electricity,
water, gas (if provided), telephone service, sewage service and other utilities Furnished to the
Pr.e~ises. Tenant, at its sole cost or expense shall have the Premises separately metered for all
tlllhllCS and shall pay all such charges directly to the appropriate utility provider. t
(c) . Int.e:ruotion. of Utility Services. Landlord shall not be liable for any intelTUption
whatsoever In utility servIces, nor for interruptions in utility services which are due to fire,
accident, strike, acts of God or other causes beyond the reasonable conLrol of Landlord, or in
order to make alterations, repairs or improvements to the Premises or other parts of the Marina." "
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ARTICLE 8 - OPERATION AND MAINTENANCE OF COMMON AREAS
(a) Definition of Common Area. The term "Common Area" shall mean the
improvements and portions of the Marina which have been designated in this Lease or which are
hereafter so designated by Landlord and provided for common use by or for the benefit of more
than one occupant of the Marina including, without limitation entrances and exists to and from
lhe Marina and to and from the public streets abutting the Marina; parking areas and driveways;
truck passageways, loading courts, loading platforms, truck docks and truck maneuvering areas;
service corridors and stairways andJor loading facilities; landscaped areas; on-site or off-site
signs idenLifying or advertising the Marina; exterior walks, sidewalks and arcades; stairs,
stairways, elevators, }"amps and any other pedestrian direction and control measures; int~ryor
corridors, arcades and balconies; directory signs and equipment, underground storm and sanitary
sewers, utility lines and the link to any junction box,and any of the foregoing which services the
Common Area; sprinkler systems, fire protection and security alann systems; wash rooms,
comfort rooms, drinking fountains, toilets; maintenance areas, and custodial facilities.
(b) Nonexclusive Use. Landlord hereby grants to Tenant, its employees, agents,
customers and inviLees, the nonexclusive right to use during the Lease Term and any permi~ted
extension thereof, of the Common Area from time to time constituted, in common with
Landlord, other tenants in the Marina and their employees, agents, customers and invitees and
other persons permitted by Landlord to use all or part cif the Common Area by Landlord, other
tenants in the Marina qr any other persons having the right to use the Common Area.
(e) Management of Common Area. Landlord agrees to manage. operate and maintain
the Common Area during the Lease Term. The manner in which such areas and facilities shall be
maintained and the expenditures therefor shall be at the sole discretion of Landlord, who shall
have the right to adopt and promulgate reasonable rules and regulations, from time to time,
inchlding the right to designate parking areas for the use of employees of tenants of the Marina.
to restrict such emplo)'ees from parking areas designated exclusively for customers and to
relocate the parking areas to off-site locations provided such off-site locations are in walking
distance 'to the Marina or some foiro of shuttle service is provided. Tenant shall cause its agents,
employees, contractors, license~s, concessionaires and subtel~ants to comply with all rules and
regulations pertaining to the use of the Common Area and the parking of cars therein.
(d) Common Area Maintenance Char~. Tenant hereby agrees to pay Landlord as
Additional Rent due hereunder, on the first day of each month during the Term, its share of
Common Area Maintenance Charges plus any sales or use tax due thereon. During the first
Lease Year, the monthly Common Area Maintenance Charge shall be S3,OOO. The Common
Area Maintenance charge shall increase each year by the CPI Increase.
ARTICLE 9 - TAXES
(a) Tenant's Share of Real and Personal Property Taxes. Real estate and personal
property taxes, including, but not limited to, ad valorem taxes, both general and special, levied or
assessed against the Land, all improvements situated on the Land (including, but not limited to,
the Building) and Building Facilities (collectively, "Taxes") shall be apportioned La the Marina in
accordance with the provisions of this ps;ragraph, and Tenant's share of such apportioned sum
shall be payable by Tenant as Additional Rent under this Lease. Lan.dlord may cnange the
method of allocating the Land or improvements to tenants at Ihe Marina aL any time. Tenant's
share of the Taxes in respect of any year shall be the greater of: $24.000 pcr year or 10% of the
annual Taxes for the Marina. .
Tenant's share of the Taxes shall be paid in advance in monthly instal1men'ts, based upon
Landlord's estimates of the Taxes. Landlord may estimate such Taxes for an entire Lease Ycar or
orher period and may revise any such estimates at anytime and from time to time. Within 90 days
or thc Tceeipl of the aclual Tax bill(s) or at such time as determined by Landlord. Lancilord shall.
furnish to Tenant a statement setting forth the actual amount of Tenant's pro rata share of such
Taxes and the amount paid by Tenant together with copies of the applicable Tax bil!s(s). In the
event the annual statement shall reflect that Taxes due in respect of the period covered by such
s;atement are Jess than the amount actua:!y pald by Tenant, Landlord shall apply such amount to
the next payment of Rent. Provided, however, if no further payments will be due as a result of
the termination of the Lease, Landlord shall n',fund tl~e excess to Tenant within 30 days after the
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dale of receipt of such statement. In the event Ole annual statement shall reOect that Taxes in
respect of lhe period actually covered by such stalement are greater than actually paid by Tenant,
Tenant shall pay such excess to Landlord within 30 days after the date of receipt of such
stalemenL
(b) Taxes on Additions to Premises. Tenant shall pay, as Additional Rent, any and all
increases in the Taxes levied on the Land and/or building by reason of any addition or
improvements to the Premises made by Tenant or any subtenant or other o~cupant of. the
Premises, whether or not such alterations or improvements have been made With the wntten
consent of Landlord. The amount of such additional Taxes levied against the Marina by reason
of such additions or improvements shall be determined by the assessor of the taxing authority. .
(c) Taxes on Leasehold Improvements and Personal Propertv of Tenant. Tenant shall
render to the applicable taxing authority any assessment for leasehold improvements to the
Premises or Tenant's personal property located therein and shall provide any information relating
to such leasehold improvements or personal property requested by such authority. Tenant shall
pay, all taxes levied or assessed by reason of such leasehold improvements and personal property
(including, ,but not limited to, special assessments), prior to lhe time such laxes become
delinquent. Tenant shall, upon request fTom Landlord, furnish 10 Landlord proof of payment of
such taxes. Tn the event any leasehold improvements shall be deem cd 10 be real estate, Tenant
shall reimburse Landlord on demand the amount of any taxes levied as against Landlord's
property by reason thereof.
(d) Other Taxes. Any excise, transaction, sales or privilege tax (except for income'
tax) now or hereafter levied or imposed upon Landlord by any government or governmental
agency on account of, attributed to or measured by rent or other charges or prorations payable
under this Lease shall be paid by Tenant to Landlord, upon demand, along with the rent a!1d
other sums payable under this Lease.
ART1CLE 10 - REPAIR AND MAINTENANCE OF PREMISES
(a) Landlord's Repairs. Landlord shall kecp. the roof, foundation and structural
portion of the exterior walls of the Premises (specifically excluding the store front) in good
rcpair. Tn the event the Premises should become in nced of repairs required to be made by
Landlord hereunder, Tenant shaJl give immediate written notice Lherecif to Landlord, and
Landlord shall not be responsible in any way for failure to. make any such repairs until a
reasonable time sh.a11 have elapsed after delivery of such written notice. If any repairs required to
be made by Landlord under this paragraph are occasioned by any alterations or additions made
by or through Tenant or the act or negligence of Tenant, its employees, subtenants, licensees or
concessionaires, Tenant shall, upon demand from Landlord, reimburse Landlord for all costs
incurred by Landlord in making such repairs. In the event any repairs are required to be made by.
Landlord, Tenant shall, at Tenant's sole cost and expense, promptly remove Tenant's fixtures,'
equipment, inventory and other personal property to the extend required to enable Landlord \0
make such repairs.
(b) Tenant's Rep8ir~. Tenant shall keep the Premises in good, clean condition and
shall, at Tenant's sole cost and expense, make all needed repairs and replacements, including, but
not limited to, repair and replacement of all heating and air conditioning equipment or systems
within the Premises, th~ Dock Electrical Box and replacement of cracked or broken glass, repair
and replacement of all plumbing and electrical service lines within the Premises, repair and
replacement of fixtures, nonstructural portion of exterior walls (including the storefront), interior
walls, 000r5, ceilings. signs (including exterior signs if pennitted), sprinkler sy's~em, interior
building appliances and the like, and any repair, replacements and/or alterations required by any
govcrnmental authority. If any repairs required to be made by Tenant hereunder are not made
within 30 days after delivery of written notice to Tenant by Landlord, Landlord may, at its
option. make such repairs without liability to Tenant for lIny loss or damage which may result to
its stock or business by reason o(such repairs, and Tenant shall pay to Landlord upon demand as
Additional Rent the cost of such repairs, plus interest at the lesser of 18% per annum or the
maximum rate allowed by law. .
Tenant, at Tenant's sole cost and expense, shall repaint, repair and remodel (subject, however, \0
the limitations contained in Article 12) the Premises, or a part thereof as may be required from
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lime 10 time \0 assure that the same are kept i~ a first-class, tenantable and attractive condition
throughout the Lease Tem1. At the expiration of this Lease, Tenant shall surrender the Premises
in good condition, reasonable wear and tear and loss by lire or other casualty covered by
Land lord's insurance exccj"lted.
ARTICLE 11 - DAMAGE AND DESTRUCTION
1n the event (i) the Premises are damaged by fire, explosion or other casualty insured
under Landlord's fire and extended coverage insurance policy (herein called an "Insured
Casualty") to the extent 0[25% or more ofthe insurable value tnereofimmediately preceding the
casualty, (ii) the Building is damaged by an Insured Casualty to the extent of25% or more of the
insurable value thereof immediately preceding the casualty, (iii) the Premises are damaged by a
casually or occurrence other than an Insured Casualty, (iv) 25% or more of the pier on which the
Dock Space is located is damaged, or (v) Landlord's lender requires that any insurance proceeds
be paid to it rather than used to reconstruct the Premises, Landlord may terminate this Lease by
giving Tenant written notice of terminatiOn within 90 days after thc happening of the event
causing the damage. In the event Landlord cannot or docs not elect to terminate this Lease as
provided above, Landlord shall promptly repair and replace the improvements furnished as a part
of Landlord's Work which existed at the time of such damage or destruction, to the condition
existing immediately preceding such fire, explosion or othcr casualty. Upon completion of such
repairs and replacement by Landlord, Tenant shall promptly repair or replace all portions of the
Premises not repaired or replaced by Landlord and repair or replace all furniture, fixtures and
equipment to the condition existing immediately preceding such fire, explosion or other casualty.
Notwithstanding anything contained herein to the contrary, Landlord's obligation to repair shall
be limited to the extent of any insurance proceeds actually received by il.
During any period of reconstruction or repair of the Premises, Tenant shall operate its business in
the Premises to the extent practicable. Landlord shall have the right, in its sole discretion,'to
relocate the damaged Office Space and/or Dock Space to space comparable to Lhat initially
required to be delivered by Landlord hereunder. Ifthis casualty or the repairing or rebuilding
shall render the Premises untenantable in whole or in part, such casualty or damage was not
caused by Tenant and Landlord elects not to temporarily relocate Tenant until such damage is
repaired, a proportionate abatement of the Rent shall be allowed from the date on which the
damage occurred until the date on which the Premises are again made tenantable. The abatement
shall be equal to the ratio that the number of square feet of the space rendered untenantable bears
to the total area of the Premises. Landlord shall not be liable to Tenant for any il}convenience or
annoyance to Tenant or injury to the business of Ten ant resulting in any way from such casualty,
damage or repair thereof. .
If the Vessel, or any portion thereof, shall be damaged or destroyed at any time or times
during the Lease Term by fire, explosion or any other casualty, Tenant, at no expense or risk to
Landlord, shall repair, rebuild or replace the Vessel (such repairing, rebuilding or replacing being
herein called "Restoration") within six months after the casualty so that after such Restoration
the Vessel shall be substantially the same as prior to such damage or destruction. Tenant shall
not be entitled lO any abatement of Rent in connection with the damage or destruction of thc
Vessel, unless such damage or destruction was proximately caused by the gross negligence or
willful misconduct of Landlord.
ARTICLE 12 - ALTERATIONS
(a) Tenant shall not attach any fixtures or articles to the Premises, or make any
substantial, material or structural alteration, addition, improvement or change whatsoever in the
Premises without in each instance s~uring the written consent of Landlord. All improvements
and equipment installed as a part of Ten ant's Work and all alterations, additional, improvements
nnd changes in the Premises shall become upon completion the property of Landlord and, at thc
expiration or earlier lennination of this Lease, the same shall be surrendered to Landlord as a
part of the Premises without distllrbance, molestation or injury. Landlord may, however, require
Tenant to remove such alterations at the end of thc Lease Term and restore any damage caused
by said removal, at Tcnant's Bole cost and expense.
(b) All construction work done by Tenant within the Premises shall be performed in a
good and workIl~anljke manner, in compliance with all governmental requirements and at such
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tirr,es and in such a manner as to cause the minimum of interference with other constr.Jction in
progress and with the transaction of business in the Marina. During any period of such work
Tenant shall have adequate fire extinguishers within the Premises. A l! costs of sucl1'work shall
be naid promptly so as 10 prevent the assertion of any liens for labor Or materials. Tenant agrees
to indemnify Landlord and hold Landlord harmless against any claims, expense, loss, liability or
damage resulting from such work, and Tenant shall, if requested by Landlord, furnish bond or
other securily satisfactory to Landlord against any such claims, expense, loss, liability or
damage. Vv'henever Tenant proposes to do any constT1lction work within the Premises, Tenant
shall first fumish 10 Landlord plans and specifications in such delail as Landlord may requesl
covering all such work. Such plans and specifications shall be reasonably received and approved
by Landlord and shall comply wilh such requirements as Landlord may from time to time
prescribe for construction within the Marina and with all applicable laws. In no evenL sh'al1 any
conslnlction work be commenced within the Premises without Landlord's written approval of
such plans and sp~ci fications.
ARTICLE 13 - TRADE FIXTURES
Tenant shall, at Tenant's expense, install alltrnde fixtures in accordance with Landlord's
requirements and all applicable laws. All unattached movable trade fixtures installed by Tenant
which may be installed and removed without drilling, cutting or otherwise defacing the Premises
shall remain the property of Ten anI. Ali other fixtures shall be the property of Landlord.
ARTICLE 14 - LlENS
Tenant shall promptly pay for any work done or material fumished in or about the
Premises and will not permit or suffer any lien to attach to the Premises, any portion of the
Marina or Land or Tenant's interest in this Lease. Nothing in this Lease shall be deemed or
construed in any way as constituting the consent or request of Landlord, express or implied, by
inference or otherwise. to any person for the performance of any labor or the furnishing of !Iny
materials to the Premises or any part thereof, nor as giving Tenant any right, power, or authority
to contract for or permit the rendering of any services or the fumishing of any materials that
would give rise to any mechanic's or other liens against the Premises, the Land the Building or
the Marina. In Lhe event any lien is placed upon tbe Premises, the Land, the Building or the
Marina Ihat is not discharged or bonded off within 15 days after Tenant first becomes aware of
such lien, Tenant shall be in default hereunder and shall not have any opportunity to cure such
default. In the event anysuch lien is attached to the Premises, the Land, the Building or the
Marina, then, in addition to any ot~er right or remedy of Landlord, Landlord may, but shall not
be obligated to, cause Ihe same to be discharged (including the advancement of monies for such
purpose). Any monies advanced or costs incurred by Landlord for any of the aforesaid purposes
shall be paid by Tenant to Landlord on demand as Additional Rent.
ARTICLE 15 - INSURANCE
(n) Casualty InstlTanc~. Tenant agrees at all times at its expense to keep its
merchandise, fixtures, equipment, leasehold improvements and other property situated within the
Premises insured against fire, with extended coverage, to the extent of 100% of the replacement
value thereof. Tenant further agrees that, at all times, when a "boiler", as that term is defined for
the purposes of boiler insurance, is located within the Premises, it will carry at its expense. boiler
insurance with policy limits of not less than $500,000, insuring both Landlord and Tenant against
loss or liability caused by the operating or malfunction of such boiler. Such insurance shall be
carried with companies au.thorized to transact business in the .State of Florida which arc
satisfactory to Landlord, and shall be in form satisfactory 10 Landlord. Tenant ~Ilall obtain a
written obligation of each insurance company to notify Landlord in writing at least 30 days' prior
10 cancellation of such insurance. Such policies or duly executed certificates of insurance shall
be delivered to Landlord prior to the commencement of Tenant's occupancy hereunder and
renewals thereofas required shall be delivered to Landlord at least 30 days prior to the expirotion
of the respecLive policy terms. The proceeds to Tenant of such insurance shall not be used,
except with the consenl of Landlord, for any purpose othcr than the repair or replacement of
n~erchandise, fixtures, equipment, leasehold improvements and other property situated within the.
Premises.
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(b) Liabilitv Insurance. Tenant agrees to carry Comprel1ensive General Liabilily
Insurance, with Contractual Liability Prote.ction of not less than Five. Million Dollars
($5,000,000), with Bodily Injury Limits of not less than Five Million Dollars ($5,000,000) per
OCCtllTence. Such Liability Insurancc shall be written by an insurance carner acceptable 10
Landlord with a capital and/or surplus of not less than One Hundred Million Dollars
($\ 00.000,000), and shall name the Landlord Insured Parties (defined below). Landlord may
from lime to time, but not more frequently than once every three (3) years, require that the
amount of public liability insurance to be maintained by Tenant under this paragraph be
increased, so that the amount thereof adequately protects Landlord's interest.
(c) yJorkman's Compensation Insurance. 111roughoutthe Term of this Lease, Tenant
shall maintain in full force and effect a policy or policies of workmen's compensation insurance
in the minimum amount required by law, issued by an insurance company authorized to Lransact
husiness in the State of Florida which is acceptable to Landlord.
(d) Dram Shop Insurance. Throughout the Lease Term, Tenant slwll maintain a
policy or policies of insurance protecting the Landlord Insured Parties (defined below) from and
against any and all damages, judgments, claims, liens, costs and expenses, including court costs
and reasonable attorney's fees, arising out of or in any manner connected with any storage, sale,
use, barter, trade or gift of alcoholic beverages on, from or aboiillhe Premises, including but nol
limited to, any and all liability arising out of or in any way connecLed with any local, state or
federal liquor control act or any such legislation of any governmental authority having
jurisdiction over the Premises, such policy or policies to be with companies reasonably
satisfactory to Landlord with bodily injury fatal or non-fatal to anyone period of $5,000,000
combined single limit coverage.
(e) fluilder's Risk Insurance. During any period when Tenant improvements or any
other construction work is being pcrformed within the Premises by or for Tenant, Tenant or'its
COl1tractor(s) shall provide builder's risk insurance equal to the replacement cost of any.
improvements being constructed, naming Landlord as a loss payee, and owners anp cOntractors
protective liability insurance in an amount of not less than $1,000,000; and each contractor shall
maintain worker's compensation insurance as required by law, and Landlord shall be provided
wi th certi (jcates evidencing same.
(f)!:ertifica~es of Insurance. Tenant shall, prior to the commencement of the Lease
Term and at least 15 days prior to any expiration of said policy, furnish to Landlord certificates
of insurance evidencing the coverages required by this Article, which certificates shall statc tha.1
such insurance is in full force and effect, stating the terms thereof coverage may not be changed
or canceled without at least ihirty (30) days prior written notice to Landlord and shall name as
additional insured: (i) Landlord, its affiliates, par:tners, officers, directors, shareholders, agents
.and employees, including but not limited to RCI Marine,lnc. and SoBe Marina, roc.: (ii) the City
and (iii) such othcr persons as Landlord may from time to time designate (collectively "Landlord
Insured Parties").
ARTICLE 16 - WAIVER OF CLAIMS
(a) Limitation of Claims A2ainst Landlord. Landlord and Landlord's agents and
employees shall not be liable for, and Tenant waives all claims for injury to persons or damage to
property s.ustained by Tenant or any person claiming through Tenant resulting from any accident
or occurrerce in or upon the Premises or in the Marina, including, but not IimiLed to, such claims
for damage rcsulting from (i) any equipment or appurtenances becoming out of repair, (ji)
Landlord's failure to keep the Premises or other part of the Marina in repair, (Iii) injury or
damage done or occasioned by wind, water, flooding. freez.ing, fire, explosion, earthquake,
excessive heat or cold, vandalism, riot or disorder or other casualty, (iv) any defect in or failure
of plumbing, heating or air conditioning equipment, electric wiring or installation thereof, gas,
water, steam pipes, stairs, railings or walks, (v) broken glass, the backing up of any sewer pipe or
downspouts, the bursting, leaking or running of any tank tub, washstand, waler closet, waste
pipe, drain or any other pipe or tank in, upon or about the Premises or building in which the
Premises are located, the escape of steam or hot water, it being agreed that all of the slime are
under thc control of Tenant, (vi) water, snow or ice being upon or coming through the roof,
skylight, trapdoor, stairs, walkers or any other place upon or near the Premises or otherwise, (vii)
the falling of any fixture, plaster or stucco and (viii) any act, omission or negligence of Landlord
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or other tenants or occupants of any premises in tfle Madna or adjoining or contiguous buildings
or owners of adjacent or contiguous property, except to the extent sLlch claims arise as a reslJ\t of
Landlord's gross negligence.
(b) lndemnity. Except to the extent liability of Tenant may be waived under
paragraph (c) of this Miele, Tenant shall indemnify, defend and hold harmless the Landlord
Insured Parties from and against all fines, suits, claims, liabilities, losses, darn~.ges and expenses,
including attorneys' fees and court costs, for injury to or deatn of any person or loss of or damage
to property in or upon the Premises or lhe Marina an9 including the person and property of
Tenant, its employees, agents, invilees, licensees or others, it being understood and agreed that
all property kept, stored or maintained in or UpOTl the Premises shall be at the risk of Tenant.
(c) Mutual Waiver of Subrogation. Except as otherwise provided. in Article 15,
Landlord, Tenant and all parties claiming under them mutually release and discharge each other
from all claims and liabilities arising from or caused by fire or other casualty or hazard covered
or required hereunder to be covered in whole or in part by casualty insurance in respect of the
Premises or in connection with property on or activities conducted on the Premises, and wB.ive.
any right of subrogation which might otherwise exist in or accrue to any person on account
thereof (in the case of Landlord, insofar as and to the extend that the provisions of this paragraph
will not invalidate any casualty insurance maintained by Landlord or cause the premiums
therefor 10 be increased). Landlord and Tenant further agree that all fire and extended coverage
insurance, boiler insurance and other casualty insurance carried by each covering losses arising
out of destruction or damage to the Premises or its contents or to other portions of the Marina
shall provide for a waiver of rights of subrogation against Landlord or Tenant, as the case may
be, on the part of the insurance carrier.
ARTICLE 17- CONDEMNATION
Ifany part of the Premises or more than 30% of the Marina shall be taken under eminent
domain, or sale in lieu thereof, Landlord may, at Landlord's option, terminate this Lease as of the
date when possession is taken by sending written notice of termination to Tenant. The entire
compensation awarded in or by reason. of any eminent domain proceedings or sale in lieu thereof
shall belong to Landlord without any deduction therefrom for any present or fi.lture estate or
interest of Tenant, and Tenant hereby assigns to Landlord all of Tenanl's right, title and interest
in and to any and all such compensation together with any and all rights, estate and interest of
Tenant noW existing or hereafter arising in and to the same or any part thereof except for such
part of such amount which by law can only be paid to Tenant. Tenant shall have no claim against
Landlord by reason of such taking or termination and shall not have any claim or right to any
portion of the amount that may be awarded or paid to Landlord as a result of any such taking.
Notwithstanding the foregoing, nothing contained herein shall prevent Tenant from bringing a
separate cause of action for damages against the condemning authority for moving expenses and
the unamortized cost of the Tenant Work or any alterations paid for by Tenant, provided any
award sought by Tenant does not decrease any award made or to be made to Landlord.
ARTICLE 18 - ASSIGNMENT AND SUBLETTING
(a) Tenant's Interest. Tenant shall not, without the prior written consent of Landlord,
which shall not be unreasonably withheld, and the consent of the City: (i) sublet the Premises in
whole or in part (or grant any concession or license in respect to all or part of the Premises), (ii)
sell, assign, mortgage, pledge or in any manner transfer this Lease or any interest Lherein without
in each case the consent in writing of Landlord first had and obtained, (iii) not permit lIny
transfer of Tenant's interest created hereby or allow any lien upon Tenant's inter~t'by operation
.of law, and/or (iv) permit the use or occupancy of tIle Premisc5 or any part thereof by anyone
other than Tenant. In the event Landlord docs consent to an assignment or subletting, Landlord
will release Tenant from its obligations under this Lease provided the proposed assignee or
sublessee has a sound financial history IInd net worth acceptable to Landlord and a 'history of
operating a similar business for at least five (5) yoaTS or hires an operator or. management
company acceptable to Landlord that has substantial experience in the dinner cruise and casino
gaming business, In the event Landlord incurs any attorneys' fees, brokerage commissions, costs
for redecorating the Premises or other costs or expenses in connection wiLh any assignment or
subletting, Tenant shall reimburse Landlord the full amount of such costs and expenses upon
demand. All income pay~ble to Tenant in connection with an assignment or sublease in excess
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or the Rent payable to Landlord hereunder wiLh respect to such space shall be payable to
Landlord; however, Landlord shall not have any right to any profit made by Tenant in connection
with the sale of the assets of its business as opposed to the assignment of the Lease or sublet of
the Premises. For all pUflloses hereof, a transfer of 50% or more of the ownership interest in
Tenant tc a person or entity thaI does not own an ownership interest in Tenant as of the Effective
Dale of Ihis Lease sl1all be deemed an assignment of this Lease requiring the prior written
consent or the Landlord and the City.
. (b) Landlord's 1nteresl. In the event of the transfer and assignment b.y Landlord of its
interest in this Lease to a person or other entity expressly assuming the Landlord's obligations
under this Lease, Landlord shall thereby be released from any further responsibility hereunder,
ard Tenant agrees to look solely to such successor in interest of the Landlord for performance of
such obligations. AJly security given by Tenant to Landlord to secure performance of Tenant's
obligations hereunder which have not previously been used by Landlord may be assigned and
transferred to such successor in interest ofLancilord and Landlord shall thereby be discharged o(
any further obligation relating thereto.
ARTICLE 19 - ACCESS TO PREMISES
Tenant agrees that Landlord, its agents, employees and servants and any other person
authorized by Landlord, may enter the Premises for the purpose of inspecting and making such
repairs (structural or otherwise), additions, improvemenLs, changes or alterations to the Premises
or Lhe Building in which the Premises are located as may be required under this Lease or as
landlord may elect, and to exhibit the same to prospective purchasers or mortgagees of the
Marina or part thereof, and to prospective tenants.. Tenant grants to Landlord the right to.place in
and upon the Premises at such places as Landlord may detennine "for rent" signs or notices,
during the last 90 days of the term hereof and Tenant undertakes and agrees that neither' Tenant
nor any person within Tenant's control will remove or interfere with such signs or notiees. Any
entlY into, inspection of or repairs, additions, improvements, changes or alterations to the
Premises or of the Building in which the Premises are locate.d by Landlord pursuant to this
Anicle shall not constitute eviction of Tenant in whole or in part and the Rent shall not abate
which such work is being done by reason of loss or intemJption of business of Tenant or
otherwise. Except in the case of an emergency, such entry by Landlord shall be limited to
reasonable times and with reasonable notice where possible and Landlord shall use reasonable
efforts practicable to minimize the interference with the operation of Tenant's business.
In the event of any such repairs, additions, improvements, changes or alterations, Tenant
shall, at Tenant's sole cost and expense, remove promptly Tenant's fixtures, equipment, inventory
and other property to the extent required to enable l...andlord to make such repairs, additio!ls,
improvements, changes or alterations. If Tenant or Tenant's agents or employees shall not be
present to permit entry into the Premises at any time and for any reason r;:ntry therein shall be
necessary or permissible under this Lease, Landlord or Landlord's agents or employees may
enter tIle Premises by forcible entry without liability Lherefor and without terminating this Lease
or in any manner affecting the obligations, covenants,. tenns or conditions herein contained
provided that Landlord shall repair any damage caused by such forcible entry.
Nothing herein contained, however, shall he deemed .or construed to impose upon
Landlord any obligation or liability whatsoever for care, supervision, repair, improvements,
additions, change or alteration of the Premises or the Building or any part thereof other Lhan an
expressly provided in this Lease.
ARTICLE 20 - DEFAULT OF TENANT
(a) Event of Default. An Event of Default shall be deemed to have occurred if:
(J) Tenant shall fail to pay when due any installment orRent or any ether sum
payable Ulider this Lease, or
(2) default shall be made in procuring or maintaining any policy of insurance
required under this Lease to be procured and maintained by Tenant, or
(3) default shall be made in the prompt and full performance of a;-,y covenant,
condition or agreement of this Lease to be kept or performed by Tenant, or
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(4) the Premises shall be vacated or abandoned or shall cease to be used for
the purpose permitted under this Lease during the hours and on the days specified in Article 1; or
(5) Tenant notifies Landlord at any lime prior to tbe Commencement Date.
that Tenant does not intend to take occupancy of the Premises on the Commencement Date, or
Tenant shall fail to promptly move into and take possession of the Premises wl1en the Premises
are ready for occupancy; or
(6) Tenant (or any guarantor of this Lease) shall become insolvent or unable
10 pay its debts as they become due, or Tenant (or any guarantor of the Lease) notifies Landlord
that it anticipates either condition; or
(7) Tenant (or any guarantor of this Lease) takes any action to, or notifies
Landlord that Tenant intends to file a petition under any section or chapter of the federal
bankruptcy code, as amended from time to time, or under any similar law or statute of the United
States or any state thereof, or a petition shall be filed against Tenant (or guarantor) under any
such statute, or Tenant (or guarantor) or any creditor of Tenant (or guarantor) notifies Landlord
that it knows such a petition will be filed, or Tenant (or guarantor) notifies Landlord that it
expects such a petition to be filed; or
(8) A reCeiver or trustee shall be appointed for Tenant's leasehold interest in
(he Premises or for all or a substantial part ofthe assets of Ten ant (or guarantor); or
(9) Tenant shall make any assignment of this Lease or sublease of all or any
portion of the Premises without Landlord's prior consent; or
(10) Tenant shall remove or permiL the removal of any furniture, fixtures or
equipment from the Premises other than in the normal course ofbusiness without replacing same
with replacement fumiture, fixtures or equipment of at least equivalent value; or
(II) Tenant shall violate any of the rules and regulations of Landlord, as
adopted from time to time; or
Upon the occurrence of an Event of Default, Landlord may, at its option, and in
compliance with applicable law (including Chapter 83 of the Florida Statutes), exercise the
following described remedies (in addition to all other legal or equitable remedies):
(1) Landlord may enter the Premises, without terminating this Lease, and
perform any covenant or agreement or satisfy or observe any condition creating or giving rise to
a default under this Lease and Tenant agrees to pay to Landlord on demand, as Additional Rent,
Lhe amount expended by Landlord in perfonning such covenant or agreement or satisfying or
observing such condition together with an amount equal to the Rent provided in this Lease to be
paid by Tenant to Landlord for the balance of the stated term of this Lease. Landlord, its agents
or employees, shall hnve the right to enter the Premises and such entry and such performance
shall not terminate this Lease or constitute an eviction of Tenant in whole or in part, nor relieve
Tenanl from the continued performance of all covenants, conditions and agreements of this
Lease, and Tenant further agrees that Landlord Insured Parties shall not be liable for any claims
for loss or damage to Tenant or anyone claiming through or under Tenant.
(2) Landlord may terminate this Lease and the term created hereby in which
e./en! Landlord forthwith may re-enter and repossess the Premises and Tenant shall pay at once
10 Landlord as liquidated damages a sum of money equal to the Rent provided in this Lease to be
paid by Tenant to Landlord, for the balance of the staled term of this Lease. which sum shall be
discounted to the then presenl value at the discount rate of the Federal Reserve Bank o( the
dislrict in which the Marina is located.
(3) Landlord may tenninate Tenant's right of possession, without t~rminating
this Lease, in which event .Tenant agrees to surrender possession and vacate the Premises
immediately and deliver possession thereof to Landlord and Tenant hereby grants to Landlord
Full and free license to enter, into and upon the Premises, in whole or in part, with or without
process of law and to repossess Landlord of the Premises or any'part thereof and to expel or
remove Tenant and any other person, firm or corporation who may be occupying or within the
Premi ses or any part thereof and remove any and all property therefrom, using such force as may
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be necessary, without terminating Ihis Lease or releasing Tenant in whole or in part from
Tenant's obligation to pay Rent and perfonn any of the, covenants, conditions and agreements to
be performed by Tenant as provided in this Lease which do not perla~n :0 the actu~ll1se of the
Premises, without being deemed in any manner guilty of trespass, eVlcl10n o.r forcible entTY. Of
delai ner, and without relinquishing Landlord's right to rental or any other notIce o.f an~ elecl~on
made by Landlord under this Article, demand for payment of Rent or for posseSSion, including
any and every form of demand and notice prescribed by any applicable statute or law.
(4) Landlord may, in its sole and abso!qte discretion, refuse to permit the
Vessel to enler or dock in the Marina.
Prior to exercising any of the foregoing remedies, Landlord shall provide Tenant with written
notice specifying the default(s) in question and provide Tenant with a five (5) day period in
which to cure said default(s). If the default cannot be reasonably cured within said five day
period, Landlord agrees not to exercise its remedies set forth above provided that Tenant
commences to cure such default within said five day period, diligen\1y proceeds to CUTe the same
and completes said cure within 60 days unless Landlord otherwise agrees to extend the cure
period in writing. Any written notice provided by Landlord herein shall run concurrently with
and be deemed notice required to be given by applicable law such that Landlord need not give
the written notice provided above and then an additional notice if wrinen nolice is required by
applicable law.
(b) Relettinll of Premise.s. Upon and after enLry into possession, without terminating
this Lease, Landlord may relet all or any part of the Premises for such rent and tlpon such terms
and to such persons, firm or entity and for such period or periods as Landlord in Landlord's sole
discretion shall determine. Landlord shall not be obligated to accept any tenant offered by
Tenllnt, or to observe any instruction given, by Tenant in respect of stich reletting or to .the
l11i tigation of damages of Landlord. For the purpose of such rcletting, Landlord may decorate or
make repairs, changes, alterations or additions in or to the Premises to the extent deemed by
Landlord desirable or convenient. If the consideration to be collected by Landlord for any such
reletting for Tenant's account is not sufficient to pay the balance of Rent due under this Lease
(including Percentage Rent) and the cost of repairs, changes, alterations or additions, Tenant
agrees ~o pay to Landlord the amount of such deficiency upon demand.
(c) No Waiver. The service of a notice to quit or vacate the Premises, demand for
possession; notice that the tenancy hereby created be terminated on any date, institution of an
action of forcible detainer or ejectment ()T entering of a judgment for possession of the Premises
(as distinguished from termination of this Lease pursuant to an express notice from Landlord)
shall not relieve Tenant from Tenant's obligation to pay the Rent hereunder during the balance of
the Lease Tenn or any extension thereof, except as herein expressly provided. Institution by
Landlord or Landlord's agents or attorneys of a forcible detainer or- ejectment action to reenter
the Premises shall not be construed to be an election of Landlord to terminate this Lease.
Landlord may collect and receive any Rent due from Tenant and the payment thereof shall not
constitute a waiver of or affect any notice or demand given, suit instituted or judgment obtained,
by Landlord, or to be held to waive, affect, change, modify or alter the rights or remedies which
Landlord may have in equity or allaw or by virtue of this Lease at the time of such payment.
(d) [Intentionally Deleted]
(e) ~a1culation of Rent Under Lease. In determining the amount of loss or damage
which Landlord may suffer by reason of tennination of this Lease or the deficiency arising by
reason of any releuing of the Premises by Landlord, there shall be added to the Minimum Rent
for each full year or partiBllease year during (proportionately adjusted for partial Lease Years)
the period from the date of an event of default until the end of the Tenn of this Lease, a slim
eqllal to the average Percentage Rent required to be paid hereunder by Tenant in respect of the
twO full Lease Years immediately preceding Lhe date of such termination or relelting'(or if two
full Lease Years have not then elapsed, then the period between the Commencement Date of this
Lease and the date of such termination or reletting with proportionate adjustment for partial
years) multiplied by the number of Lease Years or portions thereof falling without such p,::riod.
(f) !:osts. Expenses. Attornevs' Fees. In case Landlord shall be made a party to any
litigation commenced by or against Tenant or Landlord shall emi'loy all attorney to enforce the
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covenants and agreements of Temirit under this Lease, then Tenarll shall pay all costs, ex.penses
and reasonable attorneys' fees incurred or paid by Land\crd in connection with such litigation
(whelher at Irial, on any appeal or in bankruptcy) or enforcement of Tenant's covenants and
agreements. The prevailing party in any litigation between Landlord end Tenant shall bear the
cost of the other party's reasonable attorney fees lInd costs,
(g) Subsequent Defaults. The failure of Landlord to insist llpon strict perfmmance by
Tenanl of any of the covenants, conditions and agreements contained in this Lease shall not be
deemed a waiver of any subsequent breach or default by Tenant in any of the covenants,
conditions and agreements of this Lease. No surrender of the Premises shall be effected by
Landlord's acceptance of Rent or by any other means whatsoever unless the same be evidenced
by Landlord's written acceptance of such a surrender.
(11) Remedies Cumulative. All rights and remedies of Landlord herein created or
reserved or otherwise existing at law or cumulative and the exercise of one or more rights or
remedies shall not be taken to exclude or waive the right to the exercise of any other. All such
rights and remedies may be exercised and enforced concurrently and whenever and as often as
Landlord shall deem desirable.
ARTICLE 21 - LANDLORD'S l,.IEN
In addition to any statutory Landlord's lien, Landlord shall have at all times a valid
security interest to secure payment of all Rent and oLher sums of money becoming due hereunder
from Tenant, and to secure payment of any damages or loss which Landlord may suffer by
reason of the breach by Tenant of any covenant. agreement or condition co"ntained herein, upOTl
all goods, wares, equipment, fixtures (including trade fixtures), furniture, improvements and
other personal property of Tenant presently, or which may hereafter be, situated in the Premises,
and all proceeds from the sale or lcase thereof, and such property shall not be removed therefrom
without the consent of Landlord until all arrearages in rent as well 8S any and all olher sums of
money then due to Landlord hereunder shall first have bcen paid and discharged and all the
covenants, agreements and conditions hereof have been fully complied with and performed by
Tenant. Upon the occurrence of an event of default by Tenant, Landlord may, in addition to any
other remedies providcd herein or by law, and in compliance with applicable law, enter upon the
Premises and take possession of any and all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant situated in the Premises, without liability
for trespass or conversion and sell the same al private or public sale, with or without having such
property at the sale, after giving Tenant reasonable notice of the time and place of any public sale
or of the time after which any private sale is to he made.
Unless otherwise required by law, and without intending to exclude any other manner of
giving Tenant reasonable notice, the requirement of reasonable notice to Tenant of a private or
public sale shall be met if such notice is given in the manner prescribed in Article 24 of this
LeOlse at least 10 days before the time of sale, Tenant agreeing that such notice affords Tenant
surticienl opportunity prior to sale to obtain a hearing if desired by Tennnt. Any public sale made
under this Article shall be deemed to have been conducted in a commercially reasonable manner
if held in the Premises or where the Marina is located, after the time, place and method of sale
and a general description of the types of property to be sold have been advertised in a daily
newspaper published in the county in which the Premises are located, for five consecutive days
before the date 'of the sale. Landlord or its assigns may purchase at a public sale and. unless
prohibited by law, al a privale sale. The proceeds from any disposition dealt with in this Article,_
less any and all expenses connected with the taking of possession, holding and selling of the
property (including reasonable attorneys, fees and legal expenses) shall be appJiell as a credit
against the indebtedness secured by the security interest grante'd in this Article. Any surplus snaIl
be paid to Tenant or as otherwise required by law. Tenant shall pay any ~eficiencies forthwith.
Upon the request by Landlord, Tenant sha!! execute and deliver to Landlord a 'financing
statement in fonn sufficient to perfect the security interest of Landlord in the aforementioned
property and proceeds thereof under the provisions of the Uniform Commercial Code in force in
Florida. Any statutory lien for RenL is not hereby waived, the security interest herein granted
being in addition and supplementary thereto.
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ARTfCLE 22 - MORTGAGES
(3) Subordination. This Lease and all rights of Tenant hereunder are subject and
subordinate to any mortgage or mortgagcs and any deed or decds of tnlsl, blanket or otherwise,
which are now or may hereafter be placed on the real property upon which the Building is
located and any and all increases, renewals, modifications, consolidations, replacements and
extensions of any of such mortgages and deeds of trust, unless otherwise elected by Landlord,
mortgagee or beneficiary of deed of trust; provided, however, in the case of any deed of trust or
other lien which is not a first lien, such subordination shall be upon the express condition that
Tenant's possession and enjoyment of the Premises during the tenn hereof shall not be disturbed -
in the event of any foreclosure thereof. This provision shall be self-operative and no further
instrument shall be required to effect such subordination of this Lease. Tenant shall,however,
upon demand at any time or times, execute, acknowledge and deliver ~o Landlord any, and all-
instruments and certificates that may be necessary or proper to more effectively document thc
subordination of this Lease and all rights of Tenant hereunder to any such mortgage or
mortgages and/or deed or deeds oftrust or to confirm or evidence such subordination.
Tn the event Tenant shall fail or neglect to execute, acknowledge and deliver Bny such
subordination instrument or certificate, Landlord, in addition to any other remedies it may have,
may, as the agent and attomey-in-fact of Tenant, execute, acknowledge and deliver the same and
Tenant hereby irrevocably nominates, constitutes and appoints Landlord as Tenant's proper and
legal agent and attomey-in-fact for sucll purposes. Tenant covenants and agrees, in the event any
proceedings are brought for the foreclosure of any such mortgage or if the Building in which the
Premises are located is sold pursuant to any such deed of trust, to attom to the purchaser upon
any such foreclosure sale or truslee's sale ifso req\lested by such purchaser and to recognize such
purchaser as the Landlord under this Lease. Tenant agrees to execute and deliver at any time
from time 10 time upon the request of Landlord or of any holder(s) of any of the indebtedness or
other obligations secured by any such mortgages and deeds of trust any instrument or certificate
which, in the sole judgment of Landlord or of such holder (5), may be necessary or appropriate in
any such foreclosure proceeding or otherwise to evidence such attornment.
Tenant hereby irrevocably appoints Landlord and the holder(s) of the indebtedness or
other obligations secured by the aforesaid mortgages and/or deeds of trust jointly and severally
the agent and attorney-in-fact of Tenant to secure and deliver for and on behalf of Tenant any
such instrument or certificate. Tenant further waives the provisions of any statute or rule of law,
noW Of hereafter in effect, which may adversely affect this Lease and the obligation of Tenant
hereunder in the event any such foreclosure proceeding is brought or trustee's sale occurs and
agrees that this Lease shall not be affected in any way whatsoever by any such foreclosure
proceeding or trustee's sale unless the holder(s) of the indebtedness or other obligations secured
by said mortgages and/or deeds of trust shall declare otherwise.
(b) Notice to Mortgagee. In the event or' any act or omission by Landlord which
would give Tenant the right to terminate this Lease hy reason of a constructive or actual partial
or total eviction or otherwise, Tenant shall not exercise any such right (i) until it shall have given
written notice of such act or omission to the holder(s) of the indebtedness or other obligations
secured by any mortgage or deed of trust affecting the Premises, if the name and address of such
holder(s) shall previously have been fumished to Tenant, and (ii) until a reasonable period of
time for remedying such act or omission shall have elapsed following the giving of such notice
during which Landlord and such holder(s), or either of them, their agents or employees, shall be
entitled to enter upon the Premises and do therein whatever may be necessary to remedy such
action or omission. During the period between the giving of such notice and the remedying of
such act or omission, the Rent payable by Tenant for such period, as provided in this Lease, shall
be abated and apportioned only to the extent that any part of the Premises shall be untenantable.
(c) Estoppel Certificates. Tenant agrees to furnish to Landlord from time to time
when reque~ted by Landlord a certificate signed by Tenant to the effect that: (i) this Lease is then
presently in full force and effect, (ii) Landlord is not then in default under this Lease and Ten811t
does not claim any right of set-off against its obligation to pay Rent hereundcr, if such is thc
case, (iii) Tenant is not in default under this Lease, (iv) Tenant has not prepaid any of the Rent
due hereunder except to the extent expressly provided herein and (v) stating any unexercised
renewal options, expansion options, early tcrmination provisions and other rights of Tenant
hereunder as rcquested by Landlord. TenanL further agrees to furnish to Landlord from time to
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lime when requested by Landlord a lelter of acceptance in conformity with any requir~ments
made'by any lenders which have or which may be conditionally obligated lO make 8 loan secured
in pal1 by a lien against the Building in which the Premises are located, Tenant andior esloppel
certiticates which may be r.equired by any holder of indebtedness who has a lien on the Building.
(d) Tille Enct1mhn\Oc~. This Lease and all righLs of Tenant hereunder (Irc further
subject and subordinate 10 the extent that the same relate 10 the Premises to all applicable
ortlinances oflhc City or Miami Deach, Miami-Dade County, Florida, the Stale of Florida and
any oLher applicable government agency or authority, relating 10 easements, franchises and other
interests or rights upon, acroSS or appurtenant to the Building or any of the Land,
ARTICLE 23 - SURRENDER OF PREMISES
Upon expiration or termination of this Lease, either by lapse of time or otherwise, Tenant
shall peaceably surrender to Landlord the Premises, including the alterations, additions,
improvements, changes .and fixtures, other than Tenant's unattached movable trade liXlUres
remaining the property of Tenllnt, in broom-clean condition and in good repair, except For acts of
God lInd ordiriary use and wear. Tenant agrees at Landlord's request to remove Tenant's trade
lixtures upon any such expiration or termination and to repair all damage to the Premises caused
or revealed by such removal.
ARTICLE 24 - NOTICES
Notices, statements and demands required or permitted to be given hereunder may be
given by: (i) personal delivery to either party or any officer of the party to be notified, (ii)
nationally recognized overnight courier service, or (iii) may be sent by q:rtified mail, retum
receipt requested. addressed, postage prepaid, if to Landlord, to it at the address to which the last
Rent payment witS required to be made, and if to Tenant, addressed to Tenant althe Premises or
Ihe llddl'l':sS specified under Article 1 or to Stich other address as may be specified by wriaen
notice actually received by Landlord. Notices and demands sent in accordance with this Article
shall be deemed to have been delivered"when mailed or if made by personal delivery, Lhen upon
sl1ch delivery. " .
ARTICLE 25 - REPRESENTATIONS
11 is understood and agreed by Tenant that Landlord and Landlord's agent have made no
reprcscntatlons or promises with respect to the Premises or the making or enlry into this Lease
except as in lhis Lease expressly set forth and that no claim or liability. or cause for termination
shall be asserted by Tenant against Landlord for, and Landlord shall not be liable by reason of.
breach of any representations or promises not expressly stated in this Lease. Tenant represents
and warrants tbat Tenant has not dealt with any real estate agent or broker in connection with this
Lease other than Landlord's agent. Tenant hereby agrees 10 indemnify, defend and hold
Landlord hannless from and against any liability, cost, or expense incurred by Landlord in
connection with any claim for a real estate or brokerage commission or other fee due in
connection herewith by or through Tenant. "
ARTICLE 26 - HOLDING OVER
ln lhe event Tenant remains in possession of the Premises after the expira~ion or
termination of this Lease without the execution of a new lease, or fails 10 promptly move into
any relocation space in the lime period required by Landlord in the Relocation Notice, Tenant
shall be deemed to be occupying the Premises as a tenant from month to month .and pay Renl
equal 10 twice the amount of Rent specified in AT1icte 4. Tenanl hereby agrees to indemnify
Landlord from and againsl any claim, loss, damage or liability incurred by Landlord as result of
Tenant holding over in the Premises. T;lis Article shall not constjtule a waiver of Landlord's
right of re"enlry 01'" any other right Dr interest reserved by or granted to Landlord ,under this
Lease.
ARTICLE 27 - HAZARDOUS MATERIALS
Tenant shall nevc:rpermitto be incorporated into, bring inlo, store at, or place at use at, or
otherwise dispose of at, in or under the Premises, or the Building or the Land any Toxic or
Hazardous Materials (as defined hereafter). If Tenant violates this provision or ever has
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knowledge of the presence of Toxic or Hazardous Materials in, al or under the Premi:;es, or the
Building or the Marina, Tenant shall notify Landlord in writing promptly after obtaining such
knowledge. For purposes of this Lease, Hazardous or Toxic Materials shall mean hazardous or
toxic chemicals or any materials containing hazardous or toxic chemicals at levels or cOOlent
which cause such materials to be classified as hazardous or toxic as then prescribed by the
highest industry standards or by the then current levels or content as set from lime to lime by the
U. S. Environmental Protection Agency ("EPA") or the U.S. Occupational Safety and Health
Administration ("OSHA") or as defined under 29 CFR 1910 or 20 CFR 1925 or other applicable
governmental laws, rules or regulations. Upon request of Landlord from lime 10 time, Tenant
shall cause to be perfonned, at Tenant's sole cost and expense, environmental tests and studies
for the Premises and the portions of the Marina utilized by Tenant, to determine the existencf:: of
Hazardous or Toxic Materials. Tenant shall remove and dispose of, in accordance with all
applicable laws, rules and regulations as established from time to time by applicable authority,
any Hazardous or Toxic Materials in, at or under the Premises, ot the Building or the Marina
which are located resulting from, introduced from, arising out of, or the damage from which is
materially expanded as the direct result of Ten anI's acts, negligence or the violation or breach by
Tenant of this provision. Tenant shall notify Landlord of its methods. time and procedure for any
clean-up or removal of Toxic or Hazardous Materials under this provision; and Landlord shall
have Ille righl to require reasonable changes in such methods, time or procedure or to require that
the same be done after normal business hours or when the Building is otherwise closed (i.e.
weekends or holidays).
ARTICLE 28 - PROHIBITED ITEMS
Throughout the Term of this Lease and any extension or renewal hereof, Tenant shall be
prohibited from selling and/or any of the following goods or services at the Premises:
(i) Marine hardware. paints or thinner;
(ii) Mariflc cleaning and waxing supplies;
(iii) Marine plumbing supplies and hose;
(iv) Cordage and rope;
(v) Pumps and pump parts;
(vi) marine electronics;
(vii) Emergency signals and flares;
(viii) Marine charts and navigation supplies;
(ix) Yacht and vessel brokerage, chartering and rentals;
(x)
Automobile, bicycle, scooter and moped rental and the rental of
vehicles;
(xi) Stone crabs;
(xii) sale of food and/or beverages for consumption anywhere but on the
Vessel; and
(xiii) the sale or rental of any skin diving, snorkeling or scuba diving
equipment.
ARTICLE 29 - PARKTNG
Landlord agrees to use its reasonable efforts during the tenn of this Lease, to provide Tenant
with the nonexclusive use of up to one hundred twenty-f:ve (125) parking spaces on an as
aVllilable basis at locations to be detennined by Landlord in its reasonable discretion and upon
the same tems and conditions as such spaces are offered to the public. Subject to approval by
the City, Tenallt, at Tenant's option, may, at its sole cost and expense, provide electric golf cart
or tram type vehicles, if the baywalk is to be utilized, or shuttle buses to facilitate the use parkiilg
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by ils patrons in accordance with rules and regulations promulgated by L~l1dlord rrom ti.me to
time. Tenant f\.1rther acknowledges that the Landlord has Lhe rigl1tlo estab\1sh and, from lIme. to
til1le.,change rules and regulations governing the use and operlltion of parking at the Marina i~ its
sr,le discrelion. Landlord shall provide Tenant with a written copy of such rules and regulations
and any char.ges thereof. Upon prior notice 10 Tenant, Landlord shall be pcn:nitted to relocate
parking spaces for use by Tenant and iLS patrons. Landlord shall not be ob\1gated to prOVide
Tenant with any additional parking spaces if Tenant elects to operate any more Ulan one Vessel
from the Marina. Tenant acknowledges that it shall only be entitled to operate more than one
Vessel from the Marina if Tenant is able to comply with the parking requirements and any other
app licable laws and regulations of the City and any other applicable govemmenta I authority.
ARTICLE 30 - MISCELLANEOUS
(a) Interest. In the event Tenant fails to payor reimburse to Landlord any sum or
money payable under this Lease. Tenant shall be obligated to pay Landlord, as additional rent,
interest on such sum equal to the lesser of 18% per annum or the highest lawful interest rate
which may be charged to Tenant under the laws of the State of Florida. Landlord shall not be
obligated to pay interest on the Security DcposiL, Prepaid Rent or other sum held by Landlord
subjecllo later adjustment.
(b) Time is of the Essence. The time of the perfonnance of all of the covenants,
conditions and agreements of this Lease is oftl1e essence of this agreement.
(c). No Partnership. Nothing herein shall be construed so as 10 constitute a joint
venture or partnership between Landlord and Tenant, it being agreed that Lhe percentage basis for
payment of rental hereunder is only for determining the amount of Rent to be paid.
(d) Waiver or Consent. One or more waivers of any covenants, terms of condition~ of
this Lease by either party shall not be construed as a waiver of a subsequent breach of the same
covenant, term or condition. The consent or approval by either party to or of any act by the other
p<I"y requiring such consent or approval shall not be deemed to waive or render unpecessary
consent to or approval of any subsequent similar act.
(e) Force Maieure. Whenever a period of time is herein prescribed for action to he
taken by Landlord, Landlord shall not be liable or responsible for, and there shall be excluded
from the computation of any such period of time, any delays due to strikes, riots, acts or God,
shortages of labor or materials, war, acts of Lerrorism, governmental laws, regulations, or
restrictions or any other causes of any kind whatsoever which are beyond the reasonable control
of Landlord. At any time when there is outstanding a mortgage, deed of trust or similar security
instrument covering Landlord's interest in the premises, Tenant may not exercise any remedies
for default by Landlord hereunder unless and until the holder, of the indebtedness secured by
sllch mortgage, deed of trust or similar security instrument shall have received written notice of
such default and tl reasonable time for curing such default shall thereafterhave elapsed after such
holder shall have secured possession of the Premises ITom Landlord in order to cure such default.
(f) Effect of Governmental Limitation on Rents and Other Char~es. In the event that
any law, decision, rule orregu\ation of any gqvemmental body having jurisdiction shall have the
effect of limiting for any period of time the amount of Rent or other charges payable by Tenant
to any amount less than that othelWise provided pursuant to this Lease, the following amounts
shall nevertheless be payable by Tenant; (i) throughout such period of limitation, Ten;mt shall
remain liable for the maximum amount of Rent and other charges which are legally payable
1 without regard to any limitation to the amount thereof expressed in this Lease except that all
amounts payable by reason of this paragraph (I) shall not in the aggregate exceed the total 0 fall
amollnts which would otherwise be payable by Tenant pursuant to the terms of this Lease for the
period of limitation), (ii) at the lennination of such period of limiLation, Tenant shall pay to
Landlord, on demand but only to the extent legally collectible by Landlord, any amounts which
would have been due from the Tenant during the period of limitation but which were not paid
because of such limiting law, decision, rule or regulation, <lnd (iii) for the remaining term of this
Lease following the period of limitation, the term of this Lease in accordance with the terms
hereof calculated as though there had been nO intervening period 0 f limitation. -
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(g) No Personal Liabililv of Landlord. Tenant specifically agrees to look solely to
Landlord's interest il1 this Lease and the Marina for the recovery of any judgmenl from Landlord
by reason of a default in the performance of Landlord's obligations under this Lease and that, in
no event, shall Landlord or any partner or principal of Landlord, be personally liable for any such
judgment.
(h) Other Leases and Tenants. Landlord reserves the absolule right \0 effe:::t such
olher tenancies in the Marina as Landlord, in the exercise of its sole business judgment, shall
detemline to best promote the interest of the Marina. Notwithstanding anything in this Lease to
the contrary, Tenant does not rely on the fact, nor does Landlord represent, that any specific
tenant or number of TenanLs shall during the tenn of this Lease occupy any space or any
particular space in the Marina; nor does Landlord represent or warrant tllat any particular space
will be used for any particular purpose during the term of this Lease. This Lease is and shall be
considered to be the only agreement between the parties hereto and their representatives and
agents. All negotiations and oral agreements acceptable to both panies have been merged herein
and are included herein. There are no other representations or warranties between the parties and
all reliance with respect to representations is solely upon the representations and agreements
contained in this document.
(i) Memorandum of Lease. Neither this Lease nor any memorandum orshort form
hereof shall be recorded in any public records.
(j) Quiet Enjovment. Landlord hereby covenants 111ld agrees that if Tenant shall
perfoOll all of the covenants, and agreements herein required to be performed on the part of
Tenant, Tenant shall, subject to the terms ofLhis Lease, at all times during the continuance of this
Lease have the peaceable and quiet enjoyment and possession of the Premises. NOlwithstBf\ding
anything contained in this L~ase 10 the contrary, should Landlord detennine that an emerg~ncy
exists that threatens the Marina, Building or any of the tenants or persons therein, or any of thei.r
property (e.g. an impending hurricane, a bomb threat to the Marina or Building), including but
not limited to emergencies ca1.Jsed by persons or natural conditions outside of Landlord's control,
Landlord shall have the right to close the Marina and/or the Building and require all tenants,
including Tenant, to evacuate the Building and/or Marina until such emergency ceases to exisl.
Such closure shall not affect the payment of any Rent due hereunder or lhe Lease Tenn.
(k) Entire AlITeement and Amendments. This Lease and the Exhibits hereto contain
the entire agreement between the parties, and no agreement shall be effective to change, modify
or temlinate this Lease in whole or in part unless such agreement is in writing and duly signed by
the party against whom enforcement ofsuch change, modification or tennination is sought.
(I) Internretation. The necessary grammatical changes required to make the provi~ion
ni. this Lease, apply to the plural sense where t!lere is more than one tenant and to either
corporations, associations, partnerships or individuals, males or females, shall in all instances be.
assumed as though in each case fully expressed. The laws of the State of Florida shall govern the
validity, perfonnance and enforcement of this Lease. The submission of this Lease for
examination does not constitute an offer to lease, or a reservation of or option for, the Premises,
and this Lease becomes effective only upon execution and delivery thereof by Landlord and
Tenant. The captions used herein are for convenience only and do not deline, limit, describe or .
construe the tenns ofthis Lease.
(m) Severahilitv. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the tenns of this Lease, then and in
that event, it is the intention of the parties hereto that the remainder of this Lease shall not be
affected thereby, and it is also the intention of the parties 10 this Lease that in lieu of each clause.
or provision Ihat is illegal, invalid or unenforceable, there be added as a part of this Lease a
clause or provision as similar in terms to such illegal, invalid or unenforceable clause or
provisions as may be possible and be legal, valid and enforceable.
(n) Acknowledgments of Lease. Tenant agrees that it will from time to lime upon
request by Landlord execute and deliver to the Landlord a statement in recordable fonn setting
forth the Commen::cment Date and certifYing that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and effect as so
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n,odified) and further slating the date to which rent and other charges payable under this Lease
have been paid.
(0) Radon Gas. Radon is a naturally occurring radioactive gas Ihal, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over lime. Levels of radon that exceed federal and state guidelines 11ave been found
in buildings in Florida. Additional information regarding radon and radon Lesting may be
obtained from yom county public heallh unit.
(p) Security. Tenant acknowledges and agrees Landlord may, but will not be
required to, adopt and provide security services for the Marina from Lime Lo Lime. However,
Landlord will noL be required to provide any such services [mIlle Premises or for the' Marina,
and any security services that are voluntarily undertaken by Landlord may be changed or
discontinued from time to time in Landlord's sole and absolute discretion, without liability to
Tenant, its employees, agents, customers and invitees; Tenant waives any claims it may have
against Landlord arising out of any security services provided by Landlord, or the inadequacy or
absence thereof, specifically including Landlord's negligcnce with respect to the providing or
failure to provide such services.
(q) yoveming Law. This Lease and the rights and obligations of the parties hereto
shall be in\erpreted, construed, and enlorced in accordance with the laws of Lhe State 0 r Florida.
(r) WAIVER OF TRJAL BY JURY. IT 15 MuiuALLY AGREED BY AND
BETWEEN LANDLORD AND TENANT THAT THE RESPECTlVE PARTlES HERETO
SHALL AND THEY DO HEREBY WAIVE TRIAL BY ruR Y IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WiTH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT,
AND TENANT'S USE OR OCCUPANCY OF THE PREMISES, WHETHER SUCH CLAIM
IS IN CONTRACT, TORT OR OTHERWISE. TENANT FURTHER AGREES THAT IT
SHALL NOT INTERPOSE ANY NON-MANDATORY COUNTERCLAIM OR
COUNTERCLArMS IN A SUMMARY PROCEEDING OR TN ANY ACTION BASED UPON
NONPA YMENT OF RENT OR ANY OTHER PAYMENT REQUIRED OF TENANT
HEREUNDER.
(s) Authoritv. Landlord and Tenllnt each represents to the other that the person
executing this Lease on its behalf has the full power and authority to execute Ihis 1--ease and bind
Landlord and Tenant, as the case may be.
(t) BankruDtcy. Landlord and Tenant understand. that, notwithstanding certain
provisions to the contrary contained herein, a trustee or debtor in possession under the federal
bankruptcy code may have certain rights to assume or assign this Lease. Landlord and Tenant
further understand that, in any event, Landlord is entitled under the federal bankruptcy code to
adequate assurances of future perfonnance of the provisions of this Lease. The parties agree
that, with respect to any such assumption or assignment, the term "adequate assurance" shall
include at least the following:
(i) In order to assure Landlord that the proposed assignees will have
Ihe resources with which to pay all Minimum Rent and any Additional Rent payable pursuant to
tht: provisions of this Lease, any proposed assignee must have, as demonstrated to Landlord's
satisfaction, a net worth (as defined in accordance with generally accepted accounting principles
consistently applied) of not less than the net worth of Tenant on the date this Lease became
effective, increased by seven percent (7%).. compounded annually, for each year from Lhe
Commencement Date through the date of the proposed assignment. It is understood and agreed
that the financial condition and resources of Tenant were a material inducement to Landlord in
entering inlo this Lease.
(ii) Any proposed assignee must have been engaged in the conduct of
business for the five (5) years prior to any such proposed assignment, which business does not
violate the Permitted Use, and such proposed assignee shall continue to engage in the Permitted
Uses. It is understood and agreed that Landlord's asset will be substantial1y impaired if the
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trustee in barJuuptcy or any assignee of this Lease makes any use of the Premises other than the
pennitted Use.
(iii) Any proposed assignee of this Lease must assume and agree to be
personally bound by the provisions of this Lease. '
(u) Tenns Binding, All covenants, promises, conditions, representations and
agreements herein contained shall be binding upon, apply and inure to the parties hereto and their
respective heirs, executors, administraLors, successors and permitted assigns.
(v) Reservation~. Landlor<:l reserves to itself the right, from time to time, to grant,
without the consent or joinder of Tenant, such easements, rights and dedications that Landlord
deems necessary and to cause the recordation of easements, dedications, parcel maps/plats llnd
restrictions so long as same do not adversely and materially: (a) interfere with the use of the
Premises by Tenant; (b) increase Tenant's obliglltions hereunder; or (c) decrease Tenant's rights
hereunder. Tenant agrees to promptly execute and deliver in recordable form any documents
reasonably requested by Landlord to effectuate any such easements, rights, dedications, parcel
maps/plats and or restrictions.
ART1CLE 31 - GROUND LEASE
This Lease is expressly subject to the terms and conditions of that certain Lease
Agreement dated as of June 24, 1983 by and between the City and Camer-Mason Associates,
Ltd. ("Carner") as amended by the First Amendment to Malina Lease Agreement dated as of
October 23, 1991, Second Amendment to Marina Lease Agreement dated as of August II, 1994,
Third AmendmenL to Marina Lease Agreement dated as of May 27, 1997, and Fourth
Amendment to Marina Lease Agreement dated as of April 15, 1998, and the Settlement
Agreement among the City, Landlord and the "Porto fino Entities" (collectively, the "Ground
Lease"). Landlord is the successor in interest to Carner under the, Ground Lease. In the event: (a)
the Ground Lease is terminated by any reason with respect to the Premises, (b) Landlord's rights
to the Premises are terminated pursuant to any provision in 'lhe Ground Le;l.Se, or (c) the
Landlord fails to extend the Term of the Ground Lease, this Lease shall automatically terminate
as of the end of the Telm of .the Ground Lease or the termination Lhereof and Tenant shall
promptly vacate the Pi'emises. T\mant acknowledges that Tenant has read and understood the
Ground Lease, and ~grees, to be bound by all of the terms and conditions of the Ground Lease
and any subsequent amendments or modifications thereto. In the event the Tenant's use of the
Premises violates any terms and conditions of the Ground Lease or limits the use of any portion
of the premises demised under the Ground Lease, Landlord shall have the right to terminate this
Lease.
ARTJCLE 32 - FUEL CHARGE
Tenant shall pay (0 Landlord monthly, on the first of each month, a fuel charge in the
amount of $500.00, plus any applicable sales, use or similar taxes or surcharges due thereon (the
"fuel Charge"), which Fuel Charge shall increase annually based upon the CPT Increase. In
consideration of Tenant's payment of the Fuel Charge, Tenant shall be entitled to purchase fuel
from the fuel pumps located at the Marina at the price of $,02 per gallon over the cost of the fuel
to Landlord. Upon Tenant's request, Landlord will provide Tenant with evidence of\ho cost of its
fuel. If Tenar.t purchases its fuel from Landlord, Landlord shall determine, in its reasonable
discretion. time for fueling of the Vessel.
ARTICLE 33 - OPTIONS TO EXTEND LEASE TERM
Provided Tonant is not otherwise in default under this Lease, and subject to the last
sentence of this paragraph, Tenant shall have the right to extend the Lease Term (each an
"Option to Extend') for three (3) periods of ten (10) years each (each, an "Option Tetm"). The
Minim~m Rent, Percentage Rent and Additional Rent for each Option Term shall be the then
current market terms and conditions for the Premises, taking into account the Permitted Use of
t11e Premises by Tenant, as reasonably determined by Landlord. In no event shall the Minimum
Rent, Percentage Rent and Additional Rent for any Option Term shall not be less than tho
amount paid by Tenant in tho immediately preceding Lease Year. Landlord shal1 not be required
to make any improvements to the Premises in connection with Tenant exercising any Option to
Extend, Tenant shall exercise each Option to Extend by providing written notice thereof to
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Landlord on. or before J~nuary 1'1 of the year immediately prior to the expiration of \lie Lease
Term or then current Option 'ferm. Within 30 days. aner receipt of Tenant's notice Landlord
, Shall deliver to Tenant a written notice containing the Landlord's determination of the applicable
Rent for tne applicable Option Term (the "Rent 'Notice"). Ir Tenant disagrees with Landlord's
determination of the Rent, Tenant's sole remedy shall be to tem1inate Ihe exercise of Tenan\'s
Option to Extend by providing written notice thereof to Landlord (the "Termination Notice")
within \ 5 days after Tenant's receipt of the Rent Notice. If Landlord fails 10 receive Lhe
Termination Notice, the Rent Notice shall be deemed a part oflhis Lease and the parties shall not
be required La execute any additional amendment to the Lease. If Tenant fails to timel~ and
properly exercise any Option to Extend, all other Options to Extend sha~1 au:omatlcally
termination. 1f Landlord fails or otherwise elects, in its sole and absolute dIscretion, not to
exercise any option to extend the term of the Ground Lease past December 31, Z022, (Landlord
currently has three (3) ten (10) year options to extend the term of the Ground Lease past
December 31, 20Z2),Tenant shall not have any right to extend this Lease past the expiration or
lemlination of tne Ground Lease. 1n the event Landlord is prevented from exercising its right to
extend the term of the Ground Lease because of the use of the Premises by Tenant, Tenant's
Options to Extend shall automatically terminate.
ART1CLE 34 _ SPECIAL PROVISIONS REGARDING VESSEL
Tcnant acknowledges that the'Landlord has, and shall nave a lien upon the Vessel; her
apurtanances and content, for any unpaid sums due to the Landlord for the use ofiLs facililies and
other services, or for any damage to the Landlord caused in whole or in part by the Vessel or the
Tenant. [I is understood and agreed that this Lease does not constitute a bailment. The Tenant
retains and has the exclusive care custody and control of the Vessel and its contents .at all times,
and the ,Tenant is solely responsible for the Vessel, .iLS contents, and the maintenance of the
Vessel. The Tenant acknowledges that the Landlord assumes no responsibility or liability for the
safe dockage and maintenance of t\1e Vessel. Tenant is solely responsible for the maintenance
and tie up of the Vessel and Tenant shall be responsible for the proper operating condition of the
Vessel's equipment and for lhesize and condition of the Dock Space. Tenant agrees to be liable
for any damages caused to the. docks, pilings, or any other damages, cost or expenses incurred by
Landlord as a result of acts or omissions of the Tenant or the Vessel. Tenant acknowledges that
it is solely responsible for preventing the entry of unauthorized persons onto the Vessel. While
the Landlord may take reasonable efforts to control the entry of unauthorized persons onto the
docks, Tenant understands and agrees that the Landlord.does not assure the una~lthorized persons
will not board the Vessel and, accordingly Lhe Tenant is solely responsible for the security oflhe
Vesse!.
Tenant has been informed of the firenghting, first aid and security provlstons and
equipment available at the Marina and Tenanl hereby acknowledges same as being sufficient,
reasonable and adequate and Tenant hereby agrees to and does hereby hold the Landlord
harmless from any lawsuit or insufficiency in said provisions and equipment. Tenant holds
harmless, indemnifies and releases the Landlord from any and all liability, loss, claim or damage.
to any property, person or persons occurring at the Landlord. The Tenant does hold harmless,
indemnify and release the Landlord from any and all liability, lose, damage or claim to property
or like arising u;Jt of fire, or any other casually, theft or vandalism at the Landlord, even if such
loss, damage ;Jr claim results from Landlord's negligence, including but nol limited to Landlord's.
failure to rliVe other additional firefighting, first aid and security provisions or equipment.
Tenant is entering into this Lease with full knowledge and acceptance of the limitations on the
Landlord's firefighting. first aid 2nd security and other such provisions and equipment.
m))9\164&3\. S38J20v]
1/29102 2:S4 PM
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IN WITNESS \V1-lER.FCiF, the parties hereto have executed and delivered this Lease
Agreement on the day and ye(i! first above written.
Wp:yESSES:
JSJjAJ. W
PrintName~f2jJot> UI!JIN-::-
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Print Nl\r~e: _ k!. t,._i ~.(_fJ..1. r;
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Print Name: :J:;j~1" JOK"OCO..d.li'{j
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Print Name: A .;J--
\7J)J~\I648B\ ~ 538320 y 3
1/29102 2:~4 PM
LANDLORD:
MIAMI BEA CH MARINA ASSOCIATES LTD.
TENANT:
MAJESTY ENTERPRISES OF FLORlDA LLC
By' ~ ~=~
Print Name: t? YaYQ/lS: {/~ (j-- .
Title: Manager V1 .
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EXHIBIT "A"
LEGAL OESCRIPTIOH
'.
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}J{J;A 1
^II o{ LOIS 22 HHOU!:" 2', inclusive, ~"d LOI 21. leIS the southerly ~O lcel
IhClcol 01- In eloc:k III of OCE.,',N M.^CH FLORIDA ADDITION /'010. ),
Hcordint ~o Ihe Pial thcr'col 3S recorded in PIal Book 2, P~!;C ~l, 01 \he pu~rlc
R<eords 01 D~dc Caul'll)', Florida; to~clhtr ",ith Po ~o.lool ri&hl-ol.\lIay on Ihc.
Bl)' side 01 the: Hope and Rebecca ro.....er propenYl (bcinr. LoIS I} ItHOU!:" Xl
and the southerly ~o leel of Lol 21 in Bloclc 111,01 OCf.AN !:IE.ACH FLORIDA
^DDITION NO. .3); loetlhcr with an cHemenl over or under ~('Id upon the
"'tlltrl)' 100 IcCI 01 LoIS )0 and 31, all in Block 111..0CE-AN BEACH
FLORID^ ADDITION NO. ), as recorded in P1H Bool( 2; par,e & 1, 0/ II'IC Public
.Records of .Dade Counl)', FIQridl..
TOGETHER \lITH I
T1'10 Willt :z feet of Lot. 15 through 20, inclu.ivo, "su:j
tho YO.torly..(O leot:. of tho .outhorly (0 teot:. ot Lot
H, in Blo<:lc 111, of OCUJ{ Blt.ACHP'LORlOA ADDITION HO.
), according to th8 Plat thllr1)()f a.' n<:ordod in plat
Book 2, PllQ8 91, of the P'\Jbl1c Recon:b of O"dlS Co~n1:Y,
I"lorid.a.
(consisting of 4 Pages)
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Lot!; JO t.hrou9h 42. Inclu,ivl', in 11loclr. )11, 01 Det. ,
~t).OI rLOR'lO,l. )J)OIT10N >l0. J. &t:cordlnQ to. the 1'\ .
the r, 0 1 ..," r reo r 0 r dIn ? 1 . t l! 00 lr. 7. P I 9 ~ Ill. 0 ( l
:>ublic ';lr:coro~ 01 Oldr: County. Tloridl; "nel III of DA..
COUNTY PROPERlY Of HlAHl arAOi. IccordinQ to the PI
thertot ncorded in Plat Book H, It P'9r: 10, of l
Public: Records: ot Dldr: County, rlOricjl, tho dtsc:rib
u the l.Ilundrd Pl H of Lotx 0 throu9h SO. 1ncl ud v
in Uod 111, oC OCrJJ.1 BUD{ n..oRIO.a. 1-.DDJTI0H NO.
tccordlnQ to the Plat thu..of IS rtcordtd In PlIt ao
2" PIQI 81, o! tht Publ ic ~tc:ord~ ot O"dlt Count
Florid..
CP: 178CP1H 70
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EXHIBIT B
RULES fu"'ID REGULATIONS.
I. No sign, advertisement, display, notice or other lettering shall be exhibited,
inscribed painted or affixed on any part of the outside of the Premises or inside, if visible from
the outside, or the building of which they fonn a part, and no symbol design, mark, or insignia
adopted by Landlord for the Marina or any portion thereof or the tenants therein shall be used in
connection with the conduct of Tenant's business in the Premises or elsewhere withou~, in each
instance, the prior written consent of Landlord. All signs, displays, advertisements and notices of
Tenant so approved by Landlord shall be maintained by Tenant in good and attractive condition
at Tenant's expense and risk.
2. No awning or other projections shall be attached to the ouLside walls of the
Premises or the building of which they form a part without, in each instance, the prior written
consent of Landlord.
3. All garbage and refuse shall be kept in the kind of container specified by
Landlord, and shall be placed outside oflhe Premises, prepared for colle.ction in the manner and
at thc times and places specified by I,.andlord. If Landlord shall provide or designate a service for
picking up refuse and garbage, Tenant shall use the same al Tc:nanL's cost, provided such cost
shall be competitive to any similar service available to Tenant .
4.' No radio or television or other similar device shall be installed without, in each
instance, Landlord's consent in writing. No aerial or antenna shall be erected on the roof or
exlerior walls of Ihe Premises, or on the grounds without, in each instance, the prior written
consent of Landlord. Any aerial so installed without such written consent shall be subject to
removal without notice at any time. .
5. No loud speakers. television sets, pnonographs, radios or olher devices shall be
used in 8 manner so as to be heard or seen outside of the Premises without Lhe prior written
consent of Landlord.
6. No auction, fire or bankruptcy sales shall be conducted on or abOul the Premises
without the prior written consent of Landlord.
7. Tenant shall keep Tenant's display wi"ndows illuminated and the signs and exterior
lights lighted cach and every day of the terms hereof during the hours designated by Landlord.
8. Tenant shall keep the Premises at Ii temperature sufficiently high to prevent
rreez.ingofwater in pipes imd fixtures'.
9. The outside areas immediately adjoining the Premises shall be kept clean by
Tenant and Tenant shall not place orpennit any obstructions or merchandise in such areas.
10. 'Tenant and Tenant's employees shall park their cars only in those portions of the
parking area designated for the pmposc by Landlord. Tenant shall furnish Landlord the stale
automobile License numbers assigned to Tenant's car or cars and the cars of Tenant's employees
within five (5) days after taking possession of the Premises and shall. thereafter notify Landlord
of any changes within five (5) days after such changes occur. Tenant has a non-exclusive right (0
offer parking to its customers throughout any oUbe parking areas in the Marina.
II.. Tenant shall use at Tenant's cost such pest extermination contractors as Landlord
may require, provided the cost thereof is competitive to any similar service available to Tenant.
12. Tenant shail not make or permit any noise or odor which LandlQTd deems
objectionable to emanate from the Premises.
13. All deliveries or shipments of any kind to and fTom the Premises, including
I02ding and unloading of merchandise, supplies and other goods, shall be made only by way of
the rear of the Premises (unless the Premises does not have a rear entrance) at a location
designated by Landlord, and only at such times designated for such purpose by Landlord; trailers
. andlor trucks servicing the Premises may only parle in portions of the Marina designated for such
\7))39\16488\ N 5l BJ20 v J
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p\Jtp'~se bj.'Lam:l iord, and on Iy while actively loading/unloading, In n9 event n:ay aj1Y tm,cks be
parked in a manner which may interfere with the use of any Common Areas or any pedestrian aT
vehicular access; and Tenant shall complete or cause to be completed all deliveries, loading,
unloading and services to the Premises prior to 10:00 am each day. There shall not be llsed in
any space, or in the public halls of the Building, either by any Tenant or by jobbers or ethers,;n
Ihe delivery or receil't of merchandise, any hand trucks, e.xcept those equipped with rubber tires
and side guards.
14. Tenant shall not use, permit or suffer the use of any portion of the Premises as
living, sleeping or lodging quarters.
.15. No load will be r:laced on any floor of the,Premises which exceeds the floor load
per square foot area which such floor area was designated to carry.
16. All mechanical equipment and machinery in or serving Lhe Premises will be kept
free ofvibration and noise which may be transmitted beyond the confines oflhe Premises.
17. No live animals will.. be k~pt on or within the Premises, seeing eye dogs excepted.
18. No additional locks shall be placed on any door or changes made to existing locks
in Building without the prior written consent .of Landlord. Landlord will fumish two keys to
each lock on doors in the Premises and Landlord, upon request of Tenan.t, shall provide
additional duplicate keys at tenant's expense. Landlord may at all times keep a pass key to Lhe
Premises. All keys shall be returned to Landlord )Jromptly upon termination of this Lease.
19, Landlord reserve the right to close the \3uilding during non-business hours of the
Marina, subject, howev.cr, Jo . Tenant's right to admittance under regu lations prescribed by
Landlord, and to require Ihe'persons entering the Building to identify themselves and establish
their right to enter or Lo 'Ieave the Building.
20. When a boat enters the Marina, the Tenant, Vessel, creW and its guests musL
comply with all rules and regulations set out herein or as amended by Landlord, from time Lo
time.
21. Only boats, in good condition, and under their own power, shatl be admitted 10
berthing areas. In the event an emergency during Tenant's absence, e.g. breakdown of the bilge
pump, leak, bad lines, the Land\ord is authorized to make necessary repairs as economically as
possible which will be charged to the Tenant.
22. Pets shall be leashed within the confines of the Marina, and toilcted on grass
areas. Pets are permitted only ifthey do notdistllrb other guests.
23. Boats leaving for an extended cruise will so notify the Dockmaster's office. The
Landlord reserves the right to rent all docks when vacant, however transients wili move for boats
on seasonal contracts or on advance reservations.
24. The Rules of the Road and the Navigation Laws ofthe United Slates apply to all
vessels entering or leaving the manna. .
25. . Refuse shall not be thrown overboard. Garbage shall be deposited in cans
(garbins) or other receptacles supplied for that purpose. Tenant shatl notify Landlord of anything
that will not fit in these cans and Landlord shati dispose of same. No person shatl discharge oil,
fuel, spirits, inflammable substances or oily bilges into or near the Marina, Charcoal orgas fires
will not be permitted on the docks.
26. Noise shall be kept to a minimum at all times. Patrons shall use disfretion in
operating engines, generators, radios and television sets, so as not to cause a nuisance or
disturbance. The use of mechanical tools (buffers, .sanders, etc.) outside the boat is prohibited.
All boats must have underwater exhaust in operation. See Rule 29.
\7J339\1 648E\. 538320 v 3
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.27. Except as expressly provided in the Lease, advertising and/or soliciting shall not
be permitted on any boat within the Marina.
28. swimming, diving or fishing shall not be permitted in the Marina,
29. Tenants shall. not store supplies, materials, accessories or debris on walkway,
docks or finger piers and shall not construct or place thereon any lockers, cbests, cabinets, or
similar structures, excepL with written approval from Landlord. Painting, scraping or repairing of
gear of the board shall not be permitted on the walkways, docks, or finger piers. The extent of
repairs and maintenance which shall be permitted shall be at the sole discretion of Landlord.
30. Subleasing of slips, transfer of boats between slips, or from one slip to another
slip. shall not be allowed, except upon prior written approval of Landlord. Tenant agrees that in
case of an emergency, Landlord may move the Vessel from the particular space rented to any
other mooring place if the Vessel is not moved in accordance with the prior notice from the
Landlord. Tenant acknowledges slip assignment is temporary and may be reassigned by
Landlord for any reason Landlord deems valid and reasonable. Boats may be moved to another
slip with 30 days notice to make room for special events a.t the Marina.
31. Laundry shall not bel1Ung on boats, ,wall..:ways, docks, or finger piers in the
marina, nor shall .. for sale" or "for hire" signs be put on boats.
32. Dockage day starts at 6:00 A.M. Any vessel docked prior to 6:00 A.M. will be
charged dockage for the previous day. Check out time shall be 11 :00 A.M. Any vessel that
occupies berth after' 1 :00 A.M. will be charged dockage for the following day.
33. It is suggested that all owners leave a forwarding address in order to permit
prompt handling in the event telephone calls or mail is received for them. However, in any
event, Landlord assumes no responsibility whatsoever for forwarding mail or messages.' All
personal property must be removed from docks when dockage is terminated. Landlord assumes
no responsibility for any personal property that may be remaining.
34. Motorcycles, bicycles, skateboards and roller blades will not be allowed to be
ridden on any docks or piers and must be stored on th~ boat or in the parking lot. Dinghies must
be berthed within the slip assigned to the boat and in such a manner as not to interfere with the
adjoining slip.
35. All lines, rigging and halyards will be secured by the Vessel's owner in order to
eliminate noise. Slotted masts must have noise protection devices.
36. The Tenant agrees not to permit any residence aboard his Vessel while at the
Marina, without the prior writte~ consent of Landlord. which consent shall not be unreasonably
withheld. If the Tenant's vessel contains a sanitation device aboard, it must comply with tbe
most advanced state of the art requirements of the Co~t Guard governing installation and the use
of such device. The sanitation device must be properly functioning at all times while the Vessel
is at its berth. No discharge of sanitation affluent or dumping of trash overboard shall be allowed
at the marina. .
37. Employees of the Marina may not be hired to perform work on any vessels aL the
Marina nor may they be hired to perform any other sort of personal task for or on behalf of any
patrol or guest at the Marina.
38. Unauthorized use of Marina supplied fresh water is prohibited.
TENANT ACKNOWLEDGES HAVING READ A}\,'D UNDERSTOOD ALL OF THE
RULES AND REGULATIONS OF THIS AGREEMENT AND AGREES TO ABillE
THEREBY.
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\l29/0l 2:$~ PM
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