HomeMy WebLinkAboutR-88-0764d-"-T 12
9/8/88 88--764
RE80LUTION NO.
A RESOLUTION AUTHORIZINjG THE ISSUANCE OF A
REVOCABLE PERMIT. Ill SUBSTANTIALLY THE FORK
ATTACHED, TO BAYSIDE CENTER LIMITED
PARTNERSHIP (HEREINAFTER "BAYSIDE") FOR THE
USE OF TWO BERTHS LOCATED ADJACENT TO A
PORTION OF THE BISCAYNE BAY SEAWALL ADJACENT
TO BAYSIDE SPECIALTY CENTER FOR THE PURPOSE
OF MOORING TWO LUNCH/DINNER/EXCURSION
SHOWDOAT CHARTER CRUISE COKKRRCIAL VESSELS.
AS MODIFIED BY THE LETTER FROM JAMES F.
DAUSCa TO CITY MANAGER CBSAR H. ODIO, DATED
AUGUST 31, 1988, ATTACHED HERETO AS EXHIBIT
A TO THE RESOLUTION. STATING THAT THE COST
OF THE UTILITY BENCH AND RELATED PHYSICAL
IMPROVEMENTS WILL ONLY BE RECAPTURED FROM
THE ROUSE COMPANY'S SHARE OF THE PERCENTAGE
RENT FOR A PERIOD OF NO MORE THAN FOUR
YEARS, AND SUBJECT TO THE FOLLOWING
CONDITIONS: (a) BAYSIDE SHALL PROVIDE CITY
MANAGER WITH A PROGRESS REPORT EVERY SIX
MONTHS AS TO THE OPERATION OF BAY LADY AND A
PROGRESS REPORT AS TO THE EFFORTS BEING MADE
TO SECURE A BOAT FOR THE SECOND BERTH.
(b) THE MOORING AND DOCKAGE AGREEMENT FOR
THE SECOND BERTH SHALL PROVIDE THAT THE BOAT
OWNER SHALL PAY A DOCKAGE FEE OF NO LESS
THAN 5% OF WHICH 2 1/2% SHALL BE PAID TO THE
CITY (MIAMARINA ENTERPRISE FUND. IN THE
EVENT BAYSIDE CANNOT SECURE A BOAT OWNER TO
USE THE SECOND BERTH AT A DOCKAGE FEE OF AT
LEAST 5% ANY USE OF THE SECOND BERTH SHALL
BE SUBJECT TO THE APPROVAL OF THE CITY
COMMISSION. (o) BAYSIDE ACCEPTS THE DOCKAGE
AND THE BERTHS IN AN "AS IS" CONDITION.
INCLUDING BUT NOT LIMITED TO THE EXISTING
SEAWALL, THE PILES THE CLEATS, THE
BUMPERS, THE RAILINGS, THE BAYWALK AND THE
FIRE EQUIPMENT. ALL IN THEIR EXISTING
CONDITION. (d) WHENEVER THE BERTHS ARE NOT
BEING USED BY THE BAY LADY OR THE OTHER
INITIAL BOAT OWNER FOR THE SECOND BERTH THE
DOCKAGE FEES TO BE CHARGED TO ANYONE ELSE
FOR THE USE OF THE BERTHS MUST BE APPROVED
BY THE CITY MANAGER. (e) IN THE EVENT THE
INITIAL BOAT OWNERS DEFAULT UNDER THEIR
MOORING AGREEMENTS, ANY NEW AGREEMENTS WITH
OTHER BOAT OWNERS MUST BE APPROVED BY THE
CITY MANAGER. (f) BAYSIDE SHALL REQUIRE
BOAT OWNERS TO EMPLOY LOCAL RESIDENTS TO THE
EXTENT POSSIBLE AND TO CONTACT CITY.
WBERSAS, the City and Bdyside Center Limited Partnership
(hereinafter "Bayside") entered into that oertai. Amended and
Restated Lease Agreement dated Ootober 15. 1085 (as amended th+
"Retail Lease") reader vhLoh Bayxide leased oertain laid+e; aao si
to the Marina hnonn as Miamariaa ("Marina"); and
WHEREAS. the City and Bayside have eatesed i it 'fir#
Y:
MEETING OF
ATTACHMMTS' 8EP 8 IM
CONTAME None"
Xi&aarin& Agreement ('xi&Marina Agreement") dated
Ootober 24. 1959 (as &Mended-Ki&Marina Agreement"). Pursuant to
Seotion 6 of the XiaMarin& Agreement. Bayside and the City agreed
to enter into oertain agreements related to the use of the
Bisoayne Bay Seawall adj¢ to the property leased by Bayside
under the Retail Lease. including (without limitation) those two
slips shown and designated on lthibit A to the Revoo&ble Permit
(hereinafter referred to as "the Berths"); and
WHEREAS, beoause of the nature of Bayside's long term
interest under the Retail Lease in the land adj&oent to the
Berths the City has determined that it is not feasible to issue
mooring and dook&ge permits for the Berths to any entity other
than Bayside; and
WHEREAS. Bayside desires to use the Berths for the purpose
of mooring two lunch/dinner/ezoursion/showboat oharter oruise
oommeroi&1 vessels pursuant to flooring and Dook&ge Agreements to
be entered into between Bayside and the owners of suoh vessels.
said agreements to be substantially in the form attached to the
Revooable Permit &s Bzhibit B; and
WHEREAS. the oonduot of such lunoh/dinner/ezoursiou/showboat
sight-seeing ventures out of the Berths would be of eoonomio
benefit to Bayside's waterfront speoialty oenter adj&oent to the
Berths and to the City;
NOW. THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI. FLORIDA:
Seotion 1. The City Manager is authorized to issue a
Revooable Permit, in substantially the form attached. to Bayside
Center Limited Partnership (hereinafter "Bayside") for the
purpose of mooring two lunoh/dinner/ezoursion/showboat oharter
oruiss oommeroial vessels at two Berths adj&oent to a portion of
the Bisoayne say Seawall adjaoent to the property leased by
modified by the letter from Jades ! . DGftft*,1W. 0SPIT ti
U"9*v Cesas = . Woo- "%ad Ax#Wt 51, 108d , atta4h0d
Xxhibit A to the Resolution. s ad( W*t
two DertLs, the cart of the aUU" bSW*"
eos�tAr r only be reasaswt "00. •
share of the peroentage rent for a period of no more than four
years, and subjeot to the following oonditions: (a) Bayside
shall provide City Manager with a progress report every six
months as to the operation of Bay Lady and a progress report at
to the efforts being made to secure a boat for the seoond Berth.
i (b) The mooring and dooYage agreement for the seoond Berth shall
provide that the boat owner shall pay a DooYage Fee of no less
than dx of whioh 2 1/2% shall be paid to the City [Miamarina
Enterprise Fund]. In the event Bayside oannot seoure a boat
owner to use the seoond Berth at a Dootage Fee of at least 5% any
use of the seoond Berth shall be subjeot to the approval of the
City Commission. (o) Bayside sooepts the dooYage and the Berths
in an "as is" oondition. inoluding but not limited to the
existing seawall, the piles, the oleats. the bumpers, the
railings, the BaywalY and the fire equipment, all in their
existing oondition. (d) Whenever the Berths are not being used
by the Bay Lady or the other initial boat owner for the seoond
Berth the Doorage Fees to be ohargod to anyone else for the use
of the Berths must be approved by the City Manager. (a) In the
event the initial boat owners default under their mooring
agreements, any new agreements with other boat owners must be
approved by the City Manager. (f) Baysids shall require boat
owners to employ looal residents to the extent possible and to
oontaot City.
PASSED AND ADOPTED this 8th day p September— 29".
A T: BAVI L. Z. MAYOR
KkftY HIRAI
City Clerk
PREPARED AND APPROVED BY:
ANistau L CityAt
ApM10i/ED AB TO AM 00�f0"lg�M t s 4
City Atto
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Avrost Its lied
Mr. Cesar Odle
City I% na
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City of
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Miami. Florida 11131
peat Mr. DO C your staff. Im+
eith bat ay rttVeeta.
conjito
tfieetolloNingtchangef lnhtheaemccursivte
This letter M111
This, we agreed to make orator will be able to recapture the
boat op (rots Rouse's share
hers is the change: the excursion
A meal improvemsents
the utility bench and related p art. The current draft
rpercentage
cost of or froatrthe entireod of rent M) for tM°
0%) of the percenta9erent
documents permit thisrecapture
years.
the dot"mmmtnts mended t0 reflect this change.
No Mould be Willing to have
SI mrt trel -
IMS F. D MIKh g
Vice Ares/dent and h.
Development Dlrtttoe
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CC! Suar me Kirby, Esq• m .:
Marie Mho, Esa•
Nr. Albert Ruder
ltr. Michael D. Spear
�• 2
MMISIT A
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�rya,fpMwaY f i dtlH.�.ObiY/'wW�
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This Permit ("this Permit") made as of this _ may Of ,
19" by and between the BAYSIN CENTER LIMITED PARTNERSHIP, a Maryland Limited
partnership having an address at 10275 Little Patuxent Parkway, Columbia,
Maryland 21044 (hereinafter referred to as "Bayside") and THE CITY OF MIAMI,
a municipal corporation of the State of Florida ("the City") acting by and
through the City Manager ("the City Manager"), and with the prior approval of
the City COM:aaiOr. of Miami.
WHEREAS, the City and wayside entered into that certain Amended and
Restated Lease Agreement dated October 15, 1985 (as amended the "Retail
Lease") under which Bayside leased certain land adjacent to the Marina known
as Miamarina ("Marina"); and
WHEREAS, the City and Bayside have entered into that certain
Miamrina Agreement ("Miamarina Agreement") dated October 24, 1985 (as aswended
"Miamarin& Agreement"). Pursuant to Section 6 of the Miamarina Agreement,
Bays:de and the City agreed to enter into certain agreements related to the
use of the Biscayne day Seawall adjacent to the property leased by Bayside
under the Retail Lease. including (without limitation) those certain slips
shown and designated in red or. Exhibit A (hereinafter referred to as "the
Berths"); and
WHEREAS, because of the nature of Sayside's long term interest under
the Retail Lease in the land adjacent to the Berths, the City has determined
that it is not feasible to enter into mooring and dockage permits for the
Berths with any entity other than Bayside; and
WHEREAS, Bayside desires to use the Serths for the purpose of the
mooring of charter cruise commercial vessels, including without limitation the
mooring of a vessel known u ky Lady or other similar vessel owned by Harbor
Cruises Limited pursuant to a Mooring and Dockage Agreement to be entered into
between Harbor Cruises Limited and Bayside, substantially in the form attached
as Exhibit 3, and a vessel known as The Galloon and owned by Mikalon, Inc.
pursuant to a Mooring and Aookage Agroement to be entered into between
Mikelon, Inc. and BayeLde, substantially in the form attached as 1Kh1b1t C;
and
W11tREAS, the oonduot of sightseeing ventures out of the Berths would
be of economic benefit to Tayside's waterfront specialty *enter adjacent to
the Bertha (hereinafter "Bayside Marketplace") and to the City;
WN, TH9REFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby soknowledged, Tayside and City agree as follows:
JUL-14-86 THU 15:46 G3 P.02
1J_ I- 'Rs 1°:J: To{ P# COlr-�4, 0 R.e
1. pargit. Subject to the terms and conditions of the provisions
e this Permit, City hereby issues a permit to $&laid* to tree
the Bertha for doekagt of the b, LAdy and The Gallen, as well
as other vessels for eawroercial sightseeing purposes (such use
hereinafter referred to as "Permitted W"). For the purpose of
this permit each of the Vessels mooring from time to time at the
Berths are referred to herein as "Vessel", each Voss*: and eaeh
Berth are hereinafter referred to as "the Promises", and each
Owner of a Vessel from time to time mooring at the Premises is
hereinafter referred to as the "Owner" and each of the
agreements betwetn the Owner and Bayside for the mooring of a
vessel at a Berth is hereinafter referred as the "Mooring
Agreement."
2. Term. This Permit shall be valid for a period of one (1) year
commencing on October 1, 1988 and ending at midnight EST on
September 30, 1989 (hereinafter the "Original Term"). Bayaide
Is granted an option to renew this Permit upon the same terms
and conditions for up to nineteen (19) additions: terms (each
calved a "Renews: Tart:") of one (1) year each, oommencing at the
expiration of the Original Term or the immediately preceding
Renewal Tort, as the case may be, by giving City express written
notice of a renewal not less than sixty (60) days before the
date on which such Renewal Tern is to commence. This Permit
shall automatiea:ly renew each Renewal Term unless there is an
outstanding Evert of Default by Bayside under this Permit or if
the Retail Lease is terminated and a new lease is not entered
Into pursiant to the provisions of Article VI of the Retail
Lease. Within thirty (30) days after commencement of a Renewal
Term, the City and Bayside upon request of either party shall
execute one or more written memoranda setting forth the
beginning and termination dates of the Renewal Term, determined
In accordance with this Permit. for the purpose of this Permit,
"Term" shall mean the Original Term as extended by each Renewal
Term.
3. Dockue fee .
(a) During the Term Sayside shall pay to the City [Miamarina
Enterprise Fund) an amount equal to one-half of the Dockage
Fee (as such term is defined in the Mooring Agreement) and
any additional Dockage Fee under the Mooring Agreement
received by Bayside from owner parsuant to the Mooring
Agreement and one-half of all other payments reoeived by
Bayside for use of the Berths by other boat owners during
any temporary absence of the Owner, excluding, however,
payments related to reimbursing Bsyside for utility usage,
trash removal and repairs to the Berth or pursuant to any
Indemnification provision under a Mooring Agreement
(hereinafter referred to as "Dockage Fee"). As soon as
practicable after the end of each Operating Year, the
Dockage Fee paid or payable for such Operating Year shall
•2-
JUL-14-6e THU 15i47
ALL » 'R: :t!d? T4 PW C:'"P► 41 op P.4
be adjusted between Tayside and Owner, and Bayside and City
hereby agree to pay to the other, or demand, the amount of
any excess or deficiency in Doek&se Fee based upon the
adjustment made between Owner and U)SIde under the Mooring
Agreement. Tayside's share of the Dockage Fee shall be
deemed to be part of "Operating Ircoue" under the Retail
Lease.
(b) The first "Operating Year" shall eomr-once on the first day
of the Tern and shall end at the close of the twelfth full
calendar month following the comrenee 0"t of the Term;
thereafter, each Operating Year shag: consist of successive
periods of twelve calendar months. my portion of the Term
remaining at the and of the last fu;l Operating Year shall
constitute the final Operating Year and the Dockage Fee
shall be apportioned therefor.
(e) "Cross Sales" shall have the mear:ng met forth in the
Mooring Agreement and shall not substantially deviate fror..
the definition of "Gross sales" in the Mooring Agreement
attached hereto as txhibit T.
(d) Tayside shall obtain from Owners ar.d deliver to the City
copies of all reports and state'e,:ts it receives froe
Owners pursuant to the Mooring Agreements and shall pay to
City the Dockage Fee In monthly installment$ within fifteen
(15) days of the receipt of the Dockage Fee from Owner to
Bayside under the Mooring Agreement.
W City acknowledges the initial Owners using a Berth may
offset against the Dockage Fee die under the Mooring
Agreement in the firat two Operating Years, on a dollar for
dollar basis, an amount not to exceed the cost of the
utility bench and sewer facilities, if such facilities are
constructed by laysids and paid by the Owners pursuant to
the Mooring Agreements. such offset shall be applied
against money paid by the Owner to Tayside in accordance
with the Mooring Agreements.
K. 91111ties _and Other Charges. Tayside shall be responsible under
the terms of the Mooring Agreement for initially providing the
Owner with facilities for electrical and water services and, if
requested by Owner, for sanitary sewer service which will enable
Owner to obtain electrical energy for water and sanitary sower
service for use on the Vessel. Tayside shall submit utility
plans (showing the utility servioes and electric benches which
will serve the Bertha) to the City Manager for approval which
approval shall not be unreasonably withheld and if the utility
plans are not disapproved within twenty (20) days of submittal,
they shall be deemed to be approved. Bayside shall require the
Owner of each Vessel to pay for all of tteir utility usage. The
City shall not be responsible for payoert of any utility usage
-3-
Se-,is�;
JJL. 14 'F: 1°:» T►f Ql# a F.!
from the Berth. Bayside shall arrange for the utility services
to be placed either in Bayside's Or in Owner's nUft-
NgpEin& A&rfoments. Bayside shall require all Owners of Vessels
using the Berths to sign Mooring Agreements substartially in the
ferns attached hereto either as Exhibit B or Exhibit C. Sayside
shall be obligated to obtain the City Manager's prior approval,
which approval shall not be unreasonstly withheld, for any
Mooring Agreements between Bayside and O►•ner Of a vessel which
is for the Mooring of a vessel which is not similar in sits,
design, quality of operation as Vessels approved for adoring
pursuant to Section 1 of this Permit, or if with Owners who do
not have comparable management Capabilities as the Amer of the
by If Bayside intenda to enter into a Mooring Agreement
with �inYOwner for use of a Berth, Tayside will submit evidence
to the City Manager in a fore, reasonably satisfactory to the
City Manager of compliance with the preeefing sentence. Bayside
will make available copies of all Mooring Agreements to the
Dockmaster of Miamerins and to the City at the City Manager's
office. Al: Mooring Agreements shall require the Owner to
indemnify the City and Bayside for all claims, losses, personal
Injury and property damage related to use of the Berths and
adjacent property, except for the negligent acts or omissions of
the City or Bayside. Bayside shall require each Owner's
business to be conducted and operated and the Owner's Vessel to
be maintained and insured in the manner prescribed under this
Permit.
6. W ntenance of the Berth. Sitrate and Trast Co::ection.
(a) The City has no responsibility for the maintenance of the
pylons, cleats and fender system. or any utility facilities or
electric benches serving the Berths. Owner and Bayside may not
make any a:terstions, additions or improvements to the Berth or
erect any signage on the pylons, without Bayside's and City
Manager or his designee's approval, and the design of such
proposed alterations, additions, or improvements in or to the
Bertha shall be first submitted to the City Manager for
approval, which approval shall not be unreasonably withheld.
All additions or improvements shall become the property of City.
and shall remain a part of the Berths at the expiration of this
Permit and any extensions or renewals thereof unless City
requests removal of all or part of said improvements in which
event Bayside shall comply with the requirements for removal set
forth in Section Q of this Permit. The cost of improvements of
the Berths requested by Baysids shall be borne by and is the
financial responsibility of Baymide and shall be done in
accordance with and subject to all Federal, Stowe County and
City Law@, Statutes, Codes and Ordinances as the same may be
amended from time to time.
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JUL-14-66 THU 15:49 G3 P
JoL 7 i 'E= )!*A! T44 V CprV-07441 V P. 6
(b) layside aeeepts the lerths in an "as is" Condition. Tayside
acknowledges that the City and its Marina personnel have no duty
to layside or the Owners related to this Permit, including,
without limitation, providing the Owners with 0161ntenanee Or
security.
(e) should Tayside desire that the berths and'or the Channels to the
lerthe be dredged, Tayside may do to at Tayside's expense and
the City will cooperate with Tayside by joining in application•
and permits and cooperate in the processing of necessary
approvals so that bayside nay obtain the appropriate permits and
Approvals. The dredging shall be done in accordance with and
subject to applicable federal, State, County and City laws,
statutes, codes and ordinances, as the sane may be amended from
time to tine.
(0) The City Manager's office shall have s right to approve, which
approval will not be unreasonably withheld, all signage at the
lerth or used in Conjunction with a Vessel and located on the
land leased by Tayside from the City. The City Manager's office
wall iron. time to time, upor. notice to Tayside, designate a
person It the City Manager's office to whom signage proposals
will be submitted for approval. Any disapproval of signage
shall be evidenced by a letter to Tayside noting the reasons for
disapproval; provided, however, any signage proposals not
disapproved within thirty (30) days of subaittal shall be deemed
to be approve:.
(0) The City may require Tayside to require Owners to use the City
garbage and waste collection service at Owner's expense.
(f) Any parking required by Owners shall be the responsibility of
Tayside to provide and not the City.
7. x s. Owner and not City or Tayside shall pay to the
appropriate agency any sales, excise and other taxes levied,
Imposed or assessed by the State of Florida or any political
subdivision thereof or other taxing authority upon the Dockage
Fee or any other Mental payable hereunder. The hoori
Agreeeents shall require the Owner to pay to Myside, It.
required by law, with each payment of the Dockage Fee due
hereunder or under the Mooring Agreement, the Florida sales tax
(or similar charges) on all such amounts, if any. Owner and not
Tayside shall be responsible under the Mooring Agreement for
paying, prior to the tics the sus shall become delinquent or
payable with penalty, (1) all taxes imposed on the Vessel and
the Owner's inventory, furniture, trade fixtures, apparatus,
equipment, installed by Owner or by layside on behalf of Owner,
and any other property of Owner and (11) all fees and charges
related to the lioensing of the Vessel for operation, liquor
lioenses, and other permits necessary for the Vessel to operate
for its intended use. Nothing in this Peralt shall limit the
City's rights under applicable law against the Owner for failure
to pay any taxes.
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JUL-14-88 THU 15:49
Jll 14 ' N 16 : 4Z THE ROUSE COMPANY P . 3
e, This Permit is not assignable by
yside without City Commission's prior express written eonsent,
except that this Permit is assignable by Tayside without the
City's consent to Tayside's Mortgagee, as such term is defined
In the Retail Lease or to a permitted transferee of Tayside's
Interest in the Retail Lease. The City agrees to accept the
performance by Tayside's Mortgagee or bayside's obligations
hereunder.
9. jnsu_n
(a) dayside agrees that, in addition to the insurance Myside is
obligated to carry under the Retail Lease, Tayside &hall carry
Mharffingers liability coverage with respect to the Berths in
amounts of not less than `1,000,000 with a $9,000,000 umbrella
coverage and with the carriers and endorsoments (including
naning the City as additional insured) that dayside is required
to provide under the Retail Lease. Tayside shall obligate the
Owners under any Mooring Agreements to carry liability and
casualty insurance, in the following forms and amounts:
(1) Protection and indemnity coverage with limits of not less
than $S,000,000 for each occurrence.
(11) Comprehensive general liability, including port 'tLsk,
contractual liability coverage, broad form property damage,
endorsement and contractor's proteotive liability *overage,
to afford protection, with limits of each occurrence, of
not less than W 000,000 with respect to personal injury or
death and $5,000,000 with respect to property damage.
(b) Such policies of insurance shall provide that the City shall be
i notified at least thirty (30) days prior to cancellation or
change and all liability coverage shall include the City so an
additional insured. Tayside shall obtain the insurance
certificates from the Owners and require Owners to furnish such
certificates prior to the date each Vessel uses a Perth.
Saysids shall furnish copies of the Owners' insurance
certificates to the City promptly after receipt by Tayside.
Tayside shall notify the City Dookmaster if Tayside refuses to
permit the Owner to moor at a Perth pursuant to the Mooring
Agreement as a result of Owner's failure to provide satisfactory
evidence of the required insuranos. For the City's bonotit,
•ayside shall insert into all Mooring Agre~ts an
Ludemnifioation clause substantially similar to the provisions
oontained in Section 13 of 9xhibit T or in Section 13 of tshibit
C. Tayside shall provide the City with copies of any subsequent
Insurance *ertifioates submitted to Tayside by Owners and in the
event Tayside revised the insurance requirements of Owners,
Tayside will consult with the City's risk manager on the changes
In the amount and types of coverages that Saysids may require
under the Mooring Agreement. City shall have a right within
Tell_-14-88 THU 160.47
1!_ I I 1c:J6 TW V
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twenty (20) days after receipt of information regarding the
proposed adjustments in *overage to approve or disapprove an
adjustment, which approval shall not be unreasonably withheld
and it the proposal is not disapproved within the twenty (20)
day period, the proposed changes shall be deemed to be approved.
(a) Notwithstanding any policy or polices of insurance required of
Tayside, Myside shall indeanify and save harmless the City fror.:
and against any and all actions, claims or demands, suits st
law, in equity or before administrative tribunal&, due to the
negligence of Tayside, its agents, servants, employees or
contractors arising out of this Permit. Sayside shall defend
any and all such actions, claims, demand& or suits on behalf of
the City at Sayside's sole cost and expense.
10. tvqrt gf Refault. The failure of either party hereto to perform
any of the Covenants, conditions and agreements of this Permit
which are to be performed by such party and the Continuance of
such failure for a period of thirty (30) days after notice
thereof in writing from the non -defaulting party (which notice
shall specify the respects in which the non -defaulting party
contends that the defaulting party has failed to perform any of
such covenants, condition and agreements), unless such default
be one which cannot be Cured within thirty (30) days and the
defaulting party within such thirty (30) day period shall have
oomaneed and thereafter shall continue diligently to prosecute
all actions necessary to cure such default, such failure to cure
the default or to eoaeenee to our@ and to diligently pursue the
curing thereof shall constitute an "Event of Default".
11. Bondits -
(a) If or. Event of Default shall occur, the non -defaulting
party shall have the right to pursue any of the following
rowdies:
(i) the right to a writ of mandamw, , injunction or other
similar relief, available to it under Florida law
against the defaulting party, including if the
defaulting party is the City, any or all of the
members of its governing body, and its officers,
agents, or representatives provided, however, that in
no event shall any member of such governing body or
any of its officers, agents or representatives be
personally liable for any of the City's obligations to
Tayside hereunder; and
(Li) the right to maintain, any and all actions at law or
wits in equity or other proper proceedings to obtain
damages resulting from such default.
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JUL-14-89 THU 15:51
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Jul 1= 'F, 1!:47 T�f V
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For the purposes of any of the provisions of
neither party shall be considered it default
obligations hereunder if the eanpliane
obligation is delayed or rendered J"ssible
a result of an Unavoidable Delay (as defined
Lease).
this Permit,
of any of Its
e with such
to perform. as
in the Retail
(b) In addition to the remedies under Section 11(a), in the
Event of Default by Tayside which is not caused directly or
indirectly by the Owner and in the case of an Event of
Default by Tayside pursuant to Section 11(e) of this
Permit, in addition tc all other rights and remedies
available to City under applicable law, City shall have the
right to immediately terminate this Permit by serving a
notice of termination and demand for the vacating of the
berth upon Tayside and the Amer. In the event Tayside or
Amer fails to vacate the berth within six (6) days after
receipt of such notice of termination, then in addition to
all other rights and remedies available to City, City shall
have the right to board the Vessel and place it in tow or
move it under its own power and remove the Vessel from its
dockage or mooring space within the Marina or remove it
from the Marina to a dockage or mooring as may be chosen by
City, in its sole discretion, and Tayside does hereby
Irrevocably appoint City, its managers, agents, servants
and/or employees as its attorney -in -fact for the purpose of
acting in Its place and stead for purposes of such
removal. In such event, Tayside does hereby release and
relieve City, its manager, agents, servants and employees
for any and all loss or damage occurring during such
removal, unless directly caused b) their gross neg:igenoe
or willful misconduct. In addition, Taysids shall be
responsible to pay all costs incurred by the City, its
managers, agents, servants and esployess in so removing the
Vessel, including, but not limited to, wages, insurance
pres•lums, dockage and storage charges and towing costs, all
of which shall be a lien upon and against the Vessel, to
the extent not collected from the Owner. Tayside agrees to
pay all oosts and expenses including reasonable attorney's
tees incurred by City in the collection of any unpaid sum
due under this Permit, or by reason of Tayside's default in
the performance of any of the oovenants of this Permit.
(a) If a default is caused directly or indirectly by an Owner
of a Vessel and not Tayside, then Tayside agrees to
Promptly send the defaulting Owner notice of such default
and to &sort diligent good faith efforts to oause the Owner
to oure the default failing which Tayside may exercise any
and all of its rights under the Mooring Agreement,
Including, without liaitation, terminating the Mooring
Agreement with the defaulting Amer if the Owner is in
default under the respective Mooring Agreement and fails to
.5-
JUL-14-66 THU 15:51
G3
P
ours the default. 1f the Owner f&::s to Cure the default
within the applicable time period under the Mooring
Agreowient, then City, by Living written notice to payside
after the ours period has expired, soy doannd that Bay&ide
praaptly terminate the Owner's %.ring Agreement. if
Mysldo fail& to so toninate the Mooring Agreament within
twenty (20) days of reoeipt of suet demand from the City,
then an Event of Default by 2ayside shall be domed to have
occurred.
12. Pea erul surrander
At the expiration of the Original Term, or any Renewal Term and
renewals hereof, Bayside shall, without demon:, quietly and peaceably
relinquish, surrender and deliver up possession of the Berths in as
good condition as it is now, except for normal wear and tear. In the
event Bayside fails to vacate the Berths within six (6) days after
receipt of such notice of tersination, then it addition to all other
rights and rowdies available to City, City shall have the right to
vacate the Berths on behalf of Bayside by boarding any Vessels which
may be swored or docked therein and placing them in tow or saving
them under their own power and removing the vessels from the Berths
to a dockage or mooring as may be choser. by City, in its sole
discretion, and wayside does hereby irrevocably appoint City, its
managers, agents, servants and/or employees as its attorney -in -fact
for the purpose of acting in its place and stead for the purposes of
removal of the Owner's Vessel. In such event, Bayside does hereby
release and relieve the City, its managers, agents, servants and
employees for loss or damage occurring during such removal, unless
directly caused by the City's gross negligence or willful
misconduct. kyside agrees that its obligations under this Permit
shall survive the termination hereof until such obligations are
fulfilled in their totality. In addition to the foregoing, at time
of tercinstion, City shall have the right to remove any pilings,
moorings or other structures which may be located in the Berths in
the event Bayside does not remove the same upon request of City. Any
costs incurred In such removal shall be paid oy Bayside within thirty
(30) days after written request for such reie:4rsewnt is made by the
City.
13 • Seth
13.1. Effectiveness. This Permit steal: become effective on and
only on its execution and delivery by each party hereto.
13,2. Comclets Understanding. This Permit represents the
complete understanding between the parties hereto as to the
subject utter hereof, and supersedes all prior negotiations,
representations, guaranties, warranties, promises, statements or
agreements, either written or oral, between the parties hereto
as to the saw.
JUL-14-68 TMU 15:52 GE D la
?o- I.: 'Fe 1!"Ae TrC 01V CC*W.144- 0 F.12
13.3. Amendment. This Permit may be amended by and only by an
Instrument executed and delivered by each party hereto.
13.4. Ater. No party hereto shall to deemed to have waives
the exercise of any right which it holds hereunder unless Bush
waiver is made expressl and in writing (and, without limiting
the generality of the lregoing, no delay or omission by any
party hereto in exercising any such right shall be 0eemed a
waiver of its future emeroise). No such waiver made in any
instance involving the exercise of any such right shall be
deemed a waiver as to any other such instance or right.
13.5. aplipabj2JAw. layside accepts this Permit recognizing
that oil laws or the State of Florida, Ordinances of the City of
Miami and Dade County, Florida, pertaining to the operation and
maintenance of the berths, and the erection of pilings, moorings
or other structures therein, including but not limited to,
building codes and Coast Guard requirements are made a part of
We Permit, and bayside agrees to abide therewith as the acne
presently exist and as they may be amended from time to time.
This Parrit shall be given effect and construed by application
of the law of Florida, and any action or proceeding arising
hereunder sha:l be brought in the courts of Florida with venue
In Dade County; provided, that if any such action or proceeding
arises under the Constitution, laws or treaties of the United
States of America, or if there is a diversity of citizenship
between the parties thereto, so that it is to be brought in a
United States District Court, it shall be brought in the United
States District Court for the Southern District of Florida.
Nothing in this Permit is intended to be construed to grant a
lioense or a lease, nor to abrogate any riparian rights mayside
has pursuant to the Retail Lease.
13.6. Time of essence. Time shall be of the essence under thia
Perini t .
13.7. loading*. The headings of the Sections, subsections,
paragraphs and subparagraph& hereof are provided herein for and
only for oonvenience of reference, and shall not be oc sidered
In construing their contents.
13.0. Eth�ibits. Each writing or plat referred to herein as
being attached hereto as an exhibit or otherwise designated
herein as an exhibit hereto is hereby made a part hereof.
MO. Ass_. This Permit shall be binding on and shall
inure to the benefit of the parties beret* and their respective
heirs, personal representatives, successors and assigns here-
under.
JUL-14-
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r
JLIL /k T14 R
13.10. kvtrabil t_v. No determination by any court, govern-
mental body or otherwise that any provision of this Permit or
any standment hereof is invalid or unenforceable in any instance
shall affect the validity or enforceability of (a) any other
Provision thereof, or (b) such provision in any circumstance not
controlled by such determination. taeh sieh Provision shall be
valid and enforceable to the fullest extent allowed by, and
Wall be construed wherever possible as being consistent with,
applicable law. In the event any part of this Permit or the
Mooring Agreements are determined to be invalid or unenforceable
by a court of competent jurisdiction whereby the Owner's Vessel
could be caused to be removed from the berth or the Marina, then
Tayside agrees not to sue the City for any expenses, costs,
losses or other damage, directly or indirectly suffered by
Sayside in any manner whatsoever as a result of such
determination or resoval. bayside shall insert the last
sentence of Section 11 of the Mooring Agreement attached hereto
as txhibit C in any other Mooring Agreement.
13.11, Disclaimer of -Partnershlip Status. Nothing in the
provisions of this Permit shall be deemed in any way to create
!` between the parties hereto any relationship of partnership,
joint venture or association, and the parties hereto hereby
disclaim the existence of any such relationship.
13.12. 3endin[ of Notices. Any notice, request, demand,
approval or consent given or required to be given under this
Permit shall be in writing and shall be deemed to have been
given on the third (3rd) day following the day on which the same
shall have been mailed by United States registered or certified
mail, return receipt requested, with all postage charges
prepaid, addressed, if intended for Bayside, to Bayside,
Attention: General Counsel, c/o The Rouse Company Building,
Columbia, Maryland 21044, with a copy to Bayside's management
office in the Bayside Marketplace, or if intended for City, to
City Manager, 3500 Pan American Drive, Miami, Florida 33133.
13.13. 9stooptl ieates. At any time and from time to
time, within ten 10days after bayside or City shall request
the sage, the other party will execute, acknowledge and deliver
to the requesting party such other parties as may be designated
by the requesting party, a certificate in a form requested by
the requesting party with respect to such matters relating to
this Permit or the status of performance of obligations of the
parties hereunder as may be reasonably requested by the
requesting party. If the other falls to provide such
oertifiate within twenty (20) days after request therefor, the
Party shall be deemed to have approved the oontents of any such
certificate submitted by the requesting party and is hereby
authorised to so certify.
i
-11 • 88-764
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x JUL-14-96 THU 15:53 G3 P.1
OF 1tt:SC 1A Ro cor�'J'
13,111. No ref*rence to any specific right
or resre y��Sayside or City from exercising any
other right Or from having any other rowdy or from maintaining
any action to which it gay otherwise be entitled At law or in
equity. NO failure by faypide or City tc insist upon the striet
perforrnce of any agreement, tars, covenant or condition
hereof, or to exercise any right Or raeedy wbooquent upon a
bMah thereof, and not 60eeptanoe of full er partial payment of
soneys due during the eontinusnee of any Such breach, shall
constitute a waiver by Bayalds or City Of any Such breach,
agreement, covenant or condition.
13.19. City's Ritht of tntry. City, or any of its properly
designated agents, reprosentatIves 0 or stployees, Shall have the
right to enter the Pratte*$ during all reasonable working hours,
to examine and/or Inspect the Berth and the Vessels.
13.16. Inglocrisination. Bayside agrees that Bayside Shall
not discriminate and all Mooring Agreements *hall provide that
the Owners shall not di$oriminate against any person on aeMnt
of race, color, Sex, religious creed, ancestry or national
origin, or handicap in the use of the Promises, nor In
accessibility to any Vessels which my be moored in the
Berths.
IN MITNESS MNEREOF, ROUSE-NIANI, INC., the sole general
UYSIN CDMP LIM:TED PAR':NERSP:P, has caused this Permit to be signed in its
name by its Vice President and its corporate seal to be hereunto affixed and
duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has
amused this Permit to be signed in its nasty by Caesar Olio, the CITY NANAUR,
and duly attested to by Natty Hirai, the CITY CLERK, on the day and year first
hereinabove written.
JUL-14-96
0.14
J,L 14 OK IP:c, THE 00
Cf7PP04,
MITNEM TTEST:
• etant 51141POW7
ratty Hirai, City Clerk
APPROVED AS TO FORM AND CORRECTNESS:
Jorge L. fernwidez, City Attorney
0
DAYSIDE C9MA LIMITED PAVMRNIP
Rouse -Miami, Inc.
General Partner
iN President
TNR CITY Or MIAMIt A MUNICIPAL
Oa MATI% Or THE =?ATE OE
fill DA
tear Bile, City her4ger
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JUL-14-le THU
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EXHIBIT e
This permit Agrooft"t ("the Agr*Went") ma:e this day
of , 19U by and between the BAYSIDE CEh-rEF.:IM/TED PARTNERSHIP, a
Maryland limited partnership having an address at 10275 Little Patuxent
hrirway, Columbia, Maryland 21044 (hereinafter referre_ to as "Sayside") and
HARBOR CRUISES LIMITED, a Maryland corporation, having an address at 6609 Sol
Air Road, Baltimore, Maryland 21NA (hereinafter referred to as "Owner").
WHEREAS, Bayside has entered into a Reva:able Permit ("Master
Permit") dated , lose with the City of Miami, Florida
(hereinafter referred to as ity") for use of that certain slip adjacent to
Miaxstrina (hereinafter referred to as "Marina") Sham a-4 designated in red on
Exhibit A (hereinafter referred to as "the berth"); &nc
WHEREAS, Owner is the owner of the commorcia: diesel vessel known as
" v Lady" and the "Lady Baltimore" which Amer aerates in Baltimore,
Mary:snd and in other locations; and
WHEREAS, Amer desires to use the berth from Myside for the purpose
of conducting a lunchidinner /excursion/showboat charter cruise oammiaroial
vessel Knowr. as the SayLadY which is approxiaate.y 141 feet in Ion th
containing two enclosed decks and which Can a00011s03ate approximately 100
passengers similar in use to that which is conducted 'rem the Owner's vessel
Lady ba:timore out of the Inner Harbor in Baltimore, Maryland or other vessel
similar In also and capacity of the Bay jLady (hereinafter referred to as the
"Vessel"); and
WHEREAS, the conduct of Owner's sightseeing venture and use out of
the Berth would be of economic benefit to Bayside's waterfront specialty
center adjacent to the Borth (hereinafter "Sayside Ile-rstplace") and Sayside
desires to permit the Owner to use the Berth urger certain terns and
conditions;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby soknowledged, Sayside and Owner agree as follows;
I. grant o( Aarsoment. Subject to the tern and conditions of the
Water Permit and provisions of this Agrooimsnt, Sayside hereby
grants to Amer a exclusive permit sutlect to the rights of
Others set forth in this Agreement to use the Berth for dookage
of the Vessel for the solo use of oonduo:ing a lunch/dinner/
excursion/showboat cruise service and other lawful related uses
thereto operated in 1947 on the vessel snows as
which is moored in Baltimore, Maryland (such uses ereina ter
referred to as "Permitted Use"). For the purpose of this
Agreement, the Vessel and the berth are Hereinafter oolleotively
referred to as "the praeeises". 88-764
JUL-14-e$ THU
15:56
o! j 'OF 1 s : `: T►£ P9 c Crlf:V � , F .
�1
(a) The term of this Agreement shall be for a one (1) year tare
"swene i on . ION and ending At OWN`ht Ef?
On 0 / hereinafter the "Original termm" ) .
Provided Owner is not in rterial default under this Agreement
Or the Master Permit or the Master permit has not terminated,
Owner is granted an option to renew this Agreement upon the sane
terns and conditions for up to nineteer (19) additional terns
(oath called a "Renewal Term") of one (1) year Oath, tommanting
at the expiration of the Original Tern, or the immediately
preceding Renewal Term, as the case may be, and terminating on
the anniversary of such expiration, by giving Sayside express
written notice of a reneval not more than one hundred and twenty
(120) days and less than ninety (90) days before the date on
which such Renewal Term is to commence; provided further that,
at Uyside's option, such renew&: request shall not be effective
It at the expiration of the Original Term or the immediately
preceding Renewal Term, as the case may be, an Event of Default
shall exist hereunder or Owner shall be in material default
under this Agreement or a default notice shall have been issued
by the City under the Master Permit due to an act or omission of
Owner. Within thirty (30) days after eommentement of a Renewal
Term, the Owner and Tayside upon request of either party !hall
exeoute one or more written memoranda setting forth the
beg:.ining and termination dates of the Renewal Term,, determined
In accordance with this Agreement. For the purpose of this
Section 2 the tern "material" shall incl64s, without limitation,
monetary defaults, violation of the Permitted Use clause, and
violation of the terms of Sections S and 1S of this Agreement or
defaults pursuant to clauses 18(i)•(vi) of this Agreement. For
the purpose of this Agreement, "Term" shall mean the Original
Term as extended by each Renewal Term.
(b) Owner acknowledges that Tayside has entered into negotiations
with Brian Street for the mooring of a replica sailing vessel at
the remaining unused berth along the Biscayne day seawall.
Should Bayaide not enter into an agreement with Brian (testo or
any corporation or entity under his control, for the use of such
berth, Owner shall have non-excluaive option until September 1,
1993, in accordance with this Section and subject to the terns
of the Master Permit, to negotiate a mooring agreement with
Sayside substantially in the form of this Agreement, except for
the Dockage Pee which shall be negotiable between the parties,
Oxoept for the use of the other berth. If Bayside desires to
negotiate a mooring agreement with a third party for use of such
berth for a period of more than am month, then Sayside shall
notify Owner of such interest. Within thirty (30) days of
receipt of the notice from Bayside, Owner shall notify Bayside
whether or not Owner intends to exercise its option. Owner Ia
failure to give notice shall be deemed to be a rejection of the
JUL-14-96 THU 15:36 G3
70, IJ 'E. �� �: THE Rc CC
option
(e) It is Bayside's intent to have different types of vessels of
varying use and operation boor at the three slips along the
Biscayne Bay seawall adjacent to Sayside Marketplace. If
Tayside permits any vessel to use one of the two other slips
along the Biscayne Say seawall not used by the Owner for the
mooring of a vessel (1) of a also greater than 60 feet in len`th
or a capacity of 200 people or more, ar.d ( ii ) for a term of a
month or longer, and (ill) operating charter cruises which serve
lunch or dinner, and (iv) operating during any portion of the
Original Tort r the first four (4) Renewal Terms of this
Agreement that Ker intends to be operating the vessel out of
the Berth, Owner shall have the Option to terminate this
Agreement by giving Bayside sixty (60) days notios provided the
notice of termination is given no later than one hundred tweet
(120) days after the vessel sleeting the requirements of (11
throi:gh (iv) above commences operation at the other slip. In
the event this Agreement is terainated as provided herein,
Tayside shall reimbjrse Owner for the cost of the electrical
bench and sewage facility, paid by Owner to Ssyside and not
already setoff against the Dockage Fee. The Dockage Fee shall
be apportioned as of the date Owner ceases operation at the
Berth. Owner's obligation to indexmify and hold Sayside and the
City harmless under this Agreement shall survive termination as
to any act or omission or occurrence which took place prior to
such termination and Owner's surrender of the Berth.
3. Dockage Fee.
(a) During the Term, Owner agrees to pay Tayside an Amount -
equal to two percent (2f) of Gross Sales for each Operating
Year, which payment shall be made in monthly installments
on or before the twentieth (2Oth) day following the close
of each month based upon the Gross Sales for such month
(hereinafter referred to as "Dockage Fee"). Mot•
withstanding anything to the contrary contained in this
Agreesment, Owner shall not be obligated to deliver the
VSSaei to the Berth and to open the Vessel for business
before , ION. The first monthly payment of
the Dockage Fee due hereunder shall include Cross Sales
from the date of the earlier to. occur of (1) the
oomwenoeslent of the Term or (11) the date the Vessel is
open for business out of the Berth through the last day of
-3- 88-764
JUL-14-66 THU 15:57 G3 P.iQ
J o- f a W f °: TEE V C L'VV0 4. 0 P. f o
the month iss*distely prior to t!:e first full calendar
month in the Term. As soon as practicable after the end of
each Operating Year, the Dockage fe* paid or payable for
such Operating Year shall be adjusted between layside and
Owner, and each party hereby agrees to pay to the other, on
demand, the amount of any excess cr deficiency in Dockage
Fee paid by Owner to Bayside during the preceding Operating
Year as My be necessary to effect aijustment to the agreed
Dockage Fee.
(b) The first "Operating Year" shall ca=enee on the first day
of the Term and shall end at the *;*so of the twelfth full
calendar month following the o=*—)cem@nt of the Tern;
thereafter, each Operating Year ohs:: consist Of susoessive
period& of twelve calendar months. Any portion of the Term
remaining at the end of the last f6:1 Operating Year shall
constitute the final Operating Yes, and the Dockage Fee
sha:l be apportioned therefor.
(c) "Gross Sales" means the actual tctal sales derived from
sales of all goods, wares and merchandise sold, licensed or
delivered and the actual charges for all services and
privileges performed by Owner or oy any sublicenses or
concessionaire in, at, from, or arising out of the use of
the Promises, whether for wholesale. retail, cash, credit,
trade-in or otherwise, without reserve Or deduction far
inability or failure to collect. Gross Sales shall
Include, without limitation, sales and services (a) where
the orders therefor originate in, at, from, or arising out
of the use of the Barth or Vessel, whether delivery Or
performance is made from the Berth or Vessel or from some
other place, (b) made or performed by means of mechanical
or other vending devices in the Barth or Vessel, or (a)
which Owner or any sublicense@, concessionaire or other
person in the normal and customary course of its business
would credit or attribute to its operations in any part of
the Berth or Vessel. Any deposit not refunded ahall be
included in Gross Sales. Each installment or credit sale
shall be treated as a sale for the full price in the month
during which such sale is made, regardless of whether or
when Owner receives payment therefor. No franchise,
oeoupancy or capital stook tax and no income or similar tax
based on income or profits shall be deducted fros Gross
Sales.
The following shall not be included in Gross Sales: (1)
cash or credit rerunds to customers on transaotions (not to
exceed the actual selling price of the item returned)
otherwise included in Gross sales, (fi) sales of trade
fixtures, rohinery and equipment after use thereof in the
conduct of Owner's business, (111) asiounts collected and
paid by Owner to any government for any nice or exelas
-40
JUL-14-90 THU 15:56 GE
JL&- >> ,ff 1°'v T4 V CL^WAPNV4, P.20
tax, (IV) the amount of any diseourt on sales to employees
and travel agents, and (v) and exeluding up to One-half of
ens percent of Groat Sales for bad debts.
(d) Owner shall deliver to Sayside: (a) within twenty (20)
days after the close of each calendar month of the Toro, a
written report signed by Owner or bl an authorised officer
or agent of Owner, showing the Gross Sales made in the
preceding calendar month and (b) within sixty (60) days
after the close of each Operating Year and after the
termination of this Agreement, a statement of Gross Sales
for the preceding Operating Year which shall conform to and
be in accordance with generally accepted accounting
principles. The annual statement shall be accompanied by
the signed certificate by the chief financial officer and a
copy of a review statement from or independent Certified
Public Accountant stating specifically that (1) he has
examined the report of Gross Sales for the preceding
Operating Year, (11) his examination included such tests of
Owner's books and records as he oonsidored necessary or
appropriate under the circumstances, (111) such report
presents fairly the Gross Sales of the preceding Operating
Year, and (iv) the Gross Sales conform with and are
oceputed in compliance with the definition of Gross
Sales. If Owner shall fall to deliver such annual
statement and certificate to Tayside within said sixty (60)
day period, Tayside or the City shall have the right
thereafter to employ an independent Certified Public
Accountant to examine such books and records as may be
necessary to certify the amount of Owner's Gross Sales for
such Operating Year, and Owner shall pay to Tayside or the
City, as the ease spay be, the coat thereof.
(a) For the purpose of permitting verification by Tayside of
any amounts due as Dockage Fee, Owner will (1) Davos the
business upon the Vessel and at the Barth to be operated so
that a duplicate uls$ slip, invoice or ban-resettable cash
register receipt, serially numbered, or such other device
for recording sales as Tayside approves, shall be issued
with each sale or transaction, whether for oash, credit or
exchange, and (11) preserve for at last two (2) years, and
during the Toro shall keep at the Owner's address for
receipt of notices pursuant to Section 12.12., a general
ledger, required receipts and disbursement journal• and
such ales records and other supporting do&Awtation,
together with original or duplicate books and resorda,
which shall disclose all information required to determine
Oros Sales and which shall conform to and be in asoordanoe
with generally accepted accounting principles. At any time
or from time to ties after advance written notice to Owner,
the City, Sayside or Tayside's mortgages, their aWte and
accountants, shall haw the right during normal business
-S-
.. o •
JU1-14-88 THU 15:58 GE
oo 14 'eE l!:?t Tot V
COMPW4, F.21
Acura to sake any examination or a6:1t of such books and
records which the City, Tayside or such mortgagee .sy
desire. If such audit shall discicse a liability in any
Operating Year for Dockage Foe in excess of the Dockage Fee
theretofore paid by Owner for sue! period, Owner shall
promptly pay such liability. Sh06:O any such liability
*quell or exceeds five percent (SU of Dockage Fat
previously paid for such Operating Year, (1) Owner shall,
In addition, promptly pay the reasonable cost of audit and
Interest at the Default Rate on all s:ch additional Doak&$*
Fee then payable, asoounting from the sate such additional
Dockage Fee was due and payable, and (ii) an gvent of
Default shall be deemed to exist unless, within thirty (30)
days after Tayside shall have give'. owner notice of such
liability, Amer shall furnish Tayside and the City with
satisfactory evidence demonstrating that such liability for
additional Dockage Fee was the res-: t of good faith error
on Owner's part.
(f) Owner shall pay all amounts due Tayside under this
Agrtesient when due and payable, without any setoff, except
as provided in Subsection (g) below. Any amount due which
Is not paid within fifteen (15) days after the same is due
shall bear interest at the rate of the lesser of (1) two
percent (2S) above the prise rate of interest charged from
time to time by The Chase Manhattan Tank (N.A.), on ahort-
term loans to large businesses having the highest credit
rating or (11) the maxiewr rate of interest for which Owner
may lawfully contract in the State of Florida (hereinafter
"the Default Rate") frow the firs: day due until paid.
Amounts due and statements required of Owner shall be paid
and delivered to Tayside at the management office of
Tayside in the Tayside Marketplace during normal business
hours, or at such other place as Tayside may from time to
time designate in a notice to Owner. Any payment by Owner
or acceptance by Tayside of a lesser amount than shall be
due from Owner to Tayside shall be treated as a payment on
account. The acceptance by Tayside of a check for a lesser
amount with an endorsement or statement thereon, or upon
any letter accompanying such check, that such lesser amount
Is payment in full, shall be giver no effect, and Tayside
may accept such cheek without pre)uciot to any other rights
or remedial which Taysidt may have against Owner.
W Owner may offset against the Dockage Fee due in the first
two (2) Operating Years an amount not to exoeed $
which is the eat of installation of the electrical
`
f%oility paid by Amer pursuant to the first aentense of
$action 4, and Owner's proportionate sham of the
Installation eat of the Sewage Facility (hereinafter
defined). Such offset shall be appiled monthly against the
Owner's Gross sales as reported to Tayside until the
88- 764,
i
JUL-14-68 THU 15:59 GS ►.21
Tu 14 .W iT:OSS T#C V 0*rPM4, P.n
earlier to occur of (1) the 1 limit being
reached or (11) the end of the secatz Operating Year.
M. 11t111ties and Other Charles. Sayside ..11 provide at Owner's
at at a point selected by Sayside •tar the Berth utility
facilities in a form reasonably approv#: by Amer which will
enable Amer to obtain electrical energ. and water service for
use on the Vessel in accordance with the plans and
specifications attached hereto as Exhi:it 3. To the extent
possible, Owner's electrical and water _sage shall be measured
by separate meters and Amer shall pa) for such energy to a
public utility or public authority supply:ng the saga.
In addition to the cost of the eleetr::al facility, if Owner
elects to have sanitary sewer pump out facilities available at
the Perth, Amer shall notify Sayside wi:nin thirty (30) days of
the date of the Agreement and Amer shall pay Sayalds its
proportionate share of the cost of installation of a sewage
pumping station and lines (eollective.y "sewage Facility")
serving the Vessel and possibly serving one or more other
touring vessels to be located in Biaeayne Bay near the Berth and
retail uses located on the pier north of Reflections
Resta6rart. Owner's proportionate share sha:l be based upon a
daily usage factor and capacity de:ermined by Sayside's
eonsilting engineer. Owner shall pay Sayside its proportionate
share of the installation cost within. thirty (30) days of
reee:pt of written notice thereof.
With regard to sanitary sewer service a•.d water and eleetrica:
service (if separate metering is not available for water or
electricity) Amer shall pay to Sayside in each, calendar month,
Its proportionate share of the cost of usage which shall be
based upon a daily usage factor deterrined by Sayside's
consalting engineer for sanitary Sewer, water and electricity
based upon, the Vessel's mechanical and system capacity,
multiplied by the number of days during the calendar month in
which, the Vessel is moored at the Sertt. Sayside may elect to
supply Coctricity to the berth and if is Owner agrees to pay to
Saysids, Sayside Owner's sleotricai wage at applicable rates
not to exceed public utility rates for the same service, if
applicable within ten (20) days of Sayside mailing Owner a
statement therefore. Sayside, at its sole discretion, *ball
have the right, from time to time, to alter the method or source
Of supply of electricity and Owner agrees to execute and deliver
to Sayside such documentation as may be required to effect such
alterations. Owner ahall be responsible for trash disposal in
accordance with the procedures established by the City for the
vessels in the Marina or in accordance with the Master Permit
or, absent such procedures, in Accordance with procedures
established by Sayside and Owner ahall pay Sayside the coats
related thereto.
• T-
JUL-14-g6 TMU 16:90 G3
LIB IJ 'NE 7R:25E TK 01* CC"Psv4) F.23
Nyside sho:l not be liable for any damages resulting Bran or
arising out of discontinuanea of utility services unless such
diseontinuence is due to gross negligence or wilINI miseonduet
of Bayside.
In the event there shall be a discontinuance of utilities
services serving the Berth for a period of at least thirty (30)
sonsecutivt days, Owner shall have a right to oanoel this
Agreement by giving Tayside written notice thereof with ten (10)
Gays of the and of the thirty (30) day period in which event
this Agreement shall automatically terminate as of the date the
notice is do"Wd delivered pursuant to Section 22.12 and Owner
shall as of such date vacate the Berth.
S. Lyra of gtration. Owner shall cause its business to be
conducted and operated in good faith and in such manner as shall
assure the transaction Of a U xieuft voluW@ of business in and at
the Premises which shall require the operation of the Vessel out
of the Berth for at least six (6) consecutive moonths between
July 1st and the following June 30th; provided however during
1989, in the first Operating Year, Owner shall only be required
to operate at the Berth for the four consecutive months of
January, febrwry, March and April 1989, with operation from the
Berth resuming no later than NOVOMAr 1, 1989. Unless other
hours are approved by Tayside in writing in its sole discretion,
while Owners Vessel is at the Berth, Owner shall cause the
business at the Premises to be open for business from 9:00 a.m.
until 11:30 p.m. Monday through Thursday and on Sunday, and from
9:00 a.m, until 2:30 a.m. the following morning on Friday and
Saturday, with. not less than two sightseeing cruises on Monday
through Thursday and on Sunday and three sightseeing trips on
Frids) and Saturday subject to the issuance of a hurricane
warning pursuant to Section 9 or Owner vacating of the Borth
pursuant to Section 15. If Owner shall fail to cause its
business to be operated during the hours and in the manner
required in the preceding sentence, or as otherwise required by
Tays:dt, in addition to any other remedy available to Bayside,
Amer shall pay to Saysids a sine, as additional Dockage Fee,
equal to a Hundred and 00/100 Dollars ($100.00) for each Dour
during which Amer shall fail to so operate in such manner.,
Should Owner desire to operate the Vessel at the Depth earlier
than 9 a.m. or later than 11:30 p.m. Sunday through Thursday or
2:30 A.M. the following morning on Friday or Saturday nights,
Owner shall notify Bayside's manager at the management office in
the Tayside Marketplace at least two days to advanoe; provided,
however, in no event may tours be conducted between z a.m. and
t:30 a.m.
Omer shall notify Asyside's manager at the Tayside Marketplace
management office not lass than thirty (30) days in advance, of
the date the Vessel will be departing the berth or returning to
the Berth for an absence of more than three (3) oonsecutive
-g-
JUG-14-eS TMU 16:01
0
[Al
days, and during sueh absences of the vtose, from the forth,
Tayside Or the City shall have the rigs: to moor other vessels
at the berth at no expense to Owner. Eayside agrees to exert
diligent good faith efforts to require any other owner of a
vessel using the berth in the Owner's A:sence to maintain the
berth in the as" condition as the bertt was when Owner left the
forth.
Owner and Tayside shall together oent.:t inspections of the
berth from tine to time to evaluate the e3ndition of the berth.
6, corwalryttion and "ain0ftanctor tbt If_r.L
(a) Subject to delays duo to labor strikes, Acts of Cod,
goverroontal regulations or contro.s, or other conditions
beyond Tayside's control, bayside shall as promptly as
possible and at Owner's oost, desig.. and construct or souse
to be designed and constructed, the electric facility
described in section M and, if Wier elects pursuant to
Sectior. Y, the sewage pumping station stubbed out to the
location shown therefor on Exhibit t at or near the berth
based upon a design approved by Owner, which approval shall
not be unreasonably withhold or 66:ayod. Upon reoslpt Of
monthly invoices therefor Owner sha:l reimburse Tayside for
such costs.
(b) Owner acknowledges that the ■a!"Wenance of the Barth
Including, without limitation, pylons, cleata and fendering
systema, the electric facility, the sewer facilities to the
point of connection at the pumpini station and the ticket
booth, shall be the responsibility solely of the Owner and
not of bayside. Owner may not make any alterations to the
berth, the electrical facility, the sewer facilities or the
ticket booth without Bayside's prior written approval and
the prior written approval of the City if required pursuant
to the Master Permit.
(e) no work performed by Owner, whether in the mature of
erection, construction, elteratiot or repair, shall be
deesad to be for the iwediate use and benefit of M side
so that no mechanic's or other lion shall be allowed
against the @state of Tayside or the City by reason of any.
eoneent given by Tayside or the City to Owner to sake
laprovements. Owner shall place suoh oontraetual
previsions as Tayside my request in all oontraots and
subcontracts for Owner's irprovwe:.t usuring Tayside that
ego meohanics' liens will be asserted against Tayside's
Interest in the Premises or the property of wbish the
Premises are a part. Owner Shall pay promptly all persona
furnishing labor or materials with respect to any work
performed by Owner or its contractors on or about the
Promises. If any m@ehanics' or other lisne Shall at any
time be filed against the Promises or the property of whioh
the Promises are a part by reason of work, labor, servioes
-,- 88-76A
JUL-14-88 TMU 16:81 G3 P.24
�L! fa 'K 1e:!7 T►i a CLVIVN, P.
or materials peribrmed or Mrnishet, or alltged to have
been performed or fLrnished, to Owner or to anyone holding
the Pren►ises through or under Owner, Owner shall forthwith
"use the same to be discharged of record or bonded to the
"tisfaetion of Taysid*. If Owner 9%all fail to "use such
lien forthwith to be so discharge: or bonded after being
notified of the filing thereof, then, in addition to any
Other right or remedy of Tayside, Baysids etay bond Or
discharge the sane by paying the sawn t e is isted to be Out,
and the amount so paid by ayside, including reasonable
attorneys' foes incurred by Bays::# either in defending
against such lion or in procuring t-e bonding or discharge
of such lien, together with interes: thereon at the Default
Rate, shall be due and payable by Tenant to tayside.
7. liclet looth and SltnNLe. During the term of this Agro~t,
Owner shall be responsible for providing a ticket booth for its
use adjacent to the Borth, the desigr. and location of which
shall be subjtot to Tayside's prior written approval at all
times. Owner will not place or sLffer to be placed or
smints:ned on the exterior of the Vesse: or the ticket booth at
the Premises any sign, advertising matter or any other thing of
any kind, and will not place or maintair, any decoration, letter
or advertising matter on the glass of ar.y window or door of the
Vessel or the ticket booth at the Prea:ses unless the sae* is
approved in advance by Tayside in its sole discretion. Owner
will, at its sole cost and expense, mi:ntain the ticket booth
and all signs, decoration, lettering, advertising scatter or
other thing as stay be perQitted hereunder in good condition and
repair at all times.
e.TAx s. Owner shall pay to the appropriate agency any sales,
excise and other Lases levied, imposed or
assessed by the State
of Florida or any political subdivision thereof or other taxing
authority upon the Dockage Pee or any
other Rental payable
hereunder. further, Owner agrees to pay
to Tayside, with each
payment of the Dockage Fee, the Florida
sales tax (or similar
oharges) on all such amounts, if any.
Owner shall also pay,
prior to the time the same shall become
delinquent or payable
with penalty, (1) all taxes imposed on the Vessel and the
Owner's inventory, turniture, trade
fixtures, apparatus,
equipment, installed by Owner or by Tayside on behalf of Owner,
and any other property of Owner and (1)
all fees and oharges
related to the liotnsing of the Vesse:
for operation, liquor
liotnses, and other pormits necessary for
the Vessel to operate
for its intended use.
9.CWQJI&n of VAssol.
The Owner covenants and agraes with the
ys a as ows:(1) Owner shall remove, or cause to be
removed, the Vessel from the Berth, the Marina and all other
City property iseediately upon the issuance of a hurricane
warning for the area by the National Hurricane Center (Owner
acknowledges and agrees that it shall be its own reeponalbility
to be aware of such warning and that neither Tayside nor the
-10- 88-76�(
JUL-14-88 THU 16 •
t!_ 1s 'ES 1!:SE Tot W col"41 f F.cE
City has any duty or obligation to notify it of 0600); (it) if
reavested by Tayside or the doormaster of the Marina (the
"DecMaaster")� Owner will demonstrate the nobility of the Vessel
by maneuvering it under power in the presence Of Tayside, the
Ooolmoter or either party's representative; and (Ili) Owner
shall not permit the Vessel to be wood at any time contrary to
the Permitted Use.
10. lar. The Owner covenants and agrees to oomply
withL i all state, federal and local laws pertaining to marinas
and boating, (11) the Marina rules and regulations set forth on
Exhibit "C" attached hereto and made a part hereof, as such
rules and regulations may be modified, vended or supplemented
from time to time by the City (the "Rules and Regulations"), and
(iii) such other rules and regulations which may be promulgated
from time to time by the City for the Marina. Without limiting
the foregoing, Owner shall not knowingly, willfully or
negligently do, suffer or allow, either individually or in
conjunction with other persons or as a part of an organisation
of persons:
(a) Any unlawful acts;
(b) Any acts which would have the effect, in the sole judgment
of the City or Tayside, of disturbing the peace,
disturbing, inconveniencing or subjecting to physical
jeopardy the Marina premises, other persons or other
vessels docked or moored at the Marina or use by Tayaide
and its tenants of the Tayside Marketplace; or
(c) Any act which would lapdog disrupt or injure the orderly
operation of the Marina, Tayside Marketplace or any portion
of it.
11. lem,notion. This Agreement shall terminate at the election of
yside or Owner in the event that the Berth Or the Marina
becomes unusable or unserviceable for a period of thirty (30)
sonseoutive days, which election must be roads by Diving notice
to the other party within ten (10) days of the thirty (30) day
period. This Agreement shall automatically terminate upon
termination of the Master Permit or upon termination pursuant to
Section ig. In the event any part of this Agreement, or the
Vaster Permit, in determined to be invalid or unenforceable by a
oourt of competent jurisdiction whereby the Vessel could be
mused to be rsmovod from the berth or Marina, Amer agrees not
to sue Sayside or the City for any expenses, oosts, losses, or
other damages, directly or indirectly, which may be suffered b�►
the Owner in any manner whatsoever, as a result of such
determination or removal.
-11-
JUL-14-eE THU
It. 111ak of Less. Owner soknswledges and agrees that this Agrtesisnt
1• a permit for the met of berthing spare only. furtherWro,
Owner acknowledges and agrees that the berth is to be used at
the solo risk of Owner and that neithe! 1ky2lde nor the City
shall be liable for the are, prottotl:� or security of the
Vessel, its appurtenances, or eontents. or for any lose or
damage of any kind or nature to the Vessel, its appurtenances,
or contents, due to fire, theft, vandellas, collision, equipment
failure, windstorm, explosion, hurricanne, rains or other
Calamities, or any other cause.
(a) Owner acknowledges and agrees that neither the City nor
Dayside makes any representation or warranty of any kind as
to the oonditior of the piers, walks, mooring gar or
electrical, water or sewer services located in the Marina
or at or adjacent to the Mrth or the depth of the water at
the Berth or between the Berth and other waterways and that
the City and its marina personnel have no duty whatsoever
to Owner, including without limitation no duty to provide
Owner with maintenance and security. The Owner, for
Itself, licensees, invitees, guests, employees, agents,
heirs, assigns and subrogess, hereby releases and agrees to
Indemnify and hold harmless Tayside and the City and all of
their respective employees, contractors and agents from and
against any and all liability for personal injury, loss of
life and property damage at or near the Berth, an the
vessel, or at or near kyside Marketplace arising from the
uae of the permit granted hereby. This release and
Indemnification shall include, but r.3t be limited to (1) in
connection with the Vessel, its motor and accessories while
It is in the berth or while it is being moved, hauled or
launched or while in the water moored at or near the
marina's dock or bulkheads; (2) loss or damage to the
Vessel or other oraft, motors and accessories or oontents
thereof due to fire, theft, vands:ism, collision, marine
equipment failure, windstorm, rain, or hurricane or other
assualty loss; and (3) any cause s! action arising out of
the use of any adjacent pier or docking fooilities or
walkways giving aooess to such piers, walks, gangways and
ramp. ?he indemnification provide3 herein shall include,
but not be limited to all oasts, expenses and reasonable
attorneys' fees, including but not limited to, reasonable
appellate attorneys' feea, insurrad by Tayside or the
City. The Owner shall defend Tayside and the City against
any such claims ariaing as above stated oseept for the
negligent sots or omissions of Tayside or the City, its
agents, employees or contractors and shall satisfy, pay and
discharge any and all judgments and fines that may be
recovered against gaysids or the City in any such action or
actions prior to the time that suot becomes a lien against
hs_ 14 ' W 1 S : S! T+C C CrMP« 41 & P . 2E
Nyside or subjects Bayside or the city to levy of
gneautiens; provided, however, that lsyside and the City
V all respectively give the owner written notice of any
such elate or demand within such tine as will allow the
owner to appssr and defend or pay and discharge ouch
claim. Owner acknowledges that the City and Dayside each
gay, at its option, actively defend against such claims and
by doing so shall not waive or d:soharge owner ftM its
obligations to defend and indeenify set forth herein.
(b) Neither 3ayside nor Owner shall be liable to the other or
to any insurance company (by way of subrogation or
otherwise) insuring the other party for any loss or damage
to any vessel, bullding, struct6re or other tangible
property, or any resulting loss of income, or losses under
worker's compensation laws and ber-efite, even though such
loss or damage might have been occasioned by the negligence
of such party, its agents or ftp:oysss, If, and to the
extent, that any such loss or damage is covered by
Insurance bensfitting the party siffering such loss or
damage or was required to be covers$ by insurance pursuant
to Section. W
14.
(a) It is expressly agreed by the Owner that neither Sayside nor the
City is in any way an insurer of the Owner's property, family,
invitees, licensees, employees, agents or guests. The Owner
hereby warrants and agrees and covenants to maintain during the
term of this Agreement, liability aid casualty insurance,
providing such coverage covering Owner's obligations under
paragraph 12 and shore and gang plank exposure in the lellowing
amunts:
(1) All Risk Bull coverage written on a market value basis.
U n Protection and Indemnity *overage with limits of not less
than `5,000,000 for each occurrence.
(111) United States Longshorm an and Narborworkers workman's
oompensation coverage or similar coverage with limits of
not less than 01,000,000.
(iv) Jones Act coverage with limits of not less than $1,000,000.
(v) Comprehensive general liability, including port risk,
ocatractual liability ooverage, broad form property daMe,
endorsement and contractor's protective liability soverage,
to afford proteotion, with limits of each ocourrosoe, of
not less than $3,000,000 with respect to personal injury or
death and $5,000,000 with respect to property damage.
-is- vc7 764k
JUL-14-09 THU 16:04
YLIL 1J 'PE If:80 Toc 00--C
IM above as+eunts of *overage &Pall be adjusted peri-
edieally every five (5) years by the ptroentagt change in
the Consumer price index (all urbar consumers) as published
by the 11uresu of Labor Statistic: Of the Department Of
Labor (the "CPI") for such S year period, or in the event
the CFI has changed or is no longer published, such other
appropriate masure Of Changes in the relative purchasing
power of the dollar agreed upon b) the parties, with the
month and year that this Agreemer.. is executed being the
base year.
(b) The company or oompaniss writing any insurance which Owner is
required to carry and maintain or cause to be carried or
maintained pursuant to this Agreement, as well as the fors of
such insurance, shall at all times be subject to Dayside's
approval. Such policies of insurance shall provide that bayside
and the City shall be notified at least thirty (30) days prior
to cancellation or change and all liability coverage shall
Include Dayside and the City as an additional insured and shall
be endorsee to be primary, non-contrib.tory and not in excess
with regard to any other insurance maintained by Tayside or the
City. The Owner shall furnish Dayside and the City (at the
address specified for the City in t e Master Permit) with
certificates of the foregoing insurance no later than thirty
(30) days prior to the date the vessel is to be initially moored
at the berth. Dayside shall be entitled at anytime without
notice to Owner to not permit Owner to use the Promise* at any
time that the required policies of insurance have lapsed or the
required evidence of the required !rajranee has not been
delivered to Dayside as herein provided.
is. Ass Isroantn This Agres=tnt may not be assigned
or sublet by the Owner without bayside's prior expreu written
consent, which my be withheld at its sole and absolute
discretion; provided, however, bayside's consent shall not be
required in the event of an assignment to an entity owned by or
controlled by Mark Lefko and Lawrence Stapler, provided such
assignee expressly assumes all the obligations of the Amer
under this Agreement in a Ton acceptable to Dayside and Amer
guarantees the obligations of the assigres under this Agreement'
and the transfer is permitted under the Muter !emit or
otherwise approved by the City. This Agreement is assignable by
Nyside to any parent, affiliate or subsidiary of Rouse -Miami,
Inc. or to the City of Miami or to bayside's mortgages of any
financing secured by all or part of the bayside Marketplace.
Owner shall accept the performance of bayside's mortgagee of any
obligations of layside.
16. Closing of the Marina. Amer acknowledges that its rights under
this Agreement are subject to the City closing the Marina and
the berth pursuant to the Miasarina Agreement dated October bd,
1985, as amended, to all occupants or licensees for periods not
-14- 88-764
JLL 1W 1E:01 THE pie CO►"4 # P. W
to quoted seventy-two (72) consecutive !aura (and in no event
fqr Sort than seven (7) tare for s e141e calendar year) and
Owner egrets It shall isredistely (but in no event longer than
twelve (12) hours) remove the Veeetl from the berth upon
notiflostion from the City that it wall be so closing the
Marine, and shall at its own oost and etpenae, dock the Vessel
at other facilities until the City reopens tht Marina. If the
Amer shall fell to remove the Vessel within the aforodesoribtd
time period, the City and/or Nyside shall have the right to
board the Vessel and place it In tow, or move it under its own
power, to a dockage or mooring, within or outside of the Marine,
ohosen by Bayside, and the Owner does hereby irrevocably appoint
the City and 2ayside, their smsnagers, &&onto, servants and/or
employees as its attorney -in -fast for the purpose of such
removal. In such event, the Amer does hereby release and
relieve the City, Dayside, its manager, agents, servants and
euployeas for any and all loss or damage occurring during such
removal, unless directly oaused by their gross negligence, or
willful Misconduct. In addition, the Amer shall be responsible
to pay all costs incurred by Myside or the City, their
managers, agents, servants and employees in so removing the
Vessel, including, but not limited to, wages, insurance
prom Was, dockage and storage ehargea and towing costs, all of
which shall be a lien upon and against the Vessel.
It is intended and understood by both parties to this Agreement
that this Agreement 1a also subject to a certain Supplemental
Agreement (which, as heretofore or hereafter amended, is
referred to herein as the "Pace tvent Agreement") between the
City, Miami Motorsports, Inc. and Dayeide dated January 14,
1985, as amended, by which Dayside has agreed, under certain
oiroumstanoes, to restrict access to the Myside Marketplace
during the staging of the Race event (as defined in the Race
event Agreement) to those membsrs of the general public holding
tickets to the Race event. Owner agrees to cooperate, and to
Cause its 011ployess and suppliers to cooperate, with •ayside
during the Aaee Event.
M n n v The Owner sovormts that the Vessel
on
eta to • Coast Guard approved sanitation devise, which'
eemplies with the current state of tho art requirements Of the
Coast Guard governing the installation assd use of such devioss
Upon that particular type of vessel. The Owner oevowts that
this sanitation device •hall be used at all times while the
Vessel is At the Depth and shall be properly mintainod by the
Owner.
1s. . In the event the Amer Violates or fails to
perform any of the oovsnsnts, tents, oonditions, agregents or
obligations of owner in this Agreement or under the Rule and
Regulations, such event or failure to perform shall wmatitute a
default by owner under the terms hereof (hereinafter referred to
-Is- 88"764k
JUG-14-98 TMU 16:95 G3
J U. 1.1 W WO-7 T1E W C CR'Pdi 41 # P . 91
as "tvent of psfault"). Any one or more of the following events
shall constitute an "tvent of Default":
(1) The sale of Owner's interest in the Vessel under
attaohwent, elocrution or similar logal preoee6 or, if Owner
Is adjudicated a bankrupt or insolvent and such
adjudication to not vacated within tr.irty (30) days.
(11) The filing of a voluntary or involuntary petition proposing
the adjudication of Owner or any guarantor of Owner's
obligations hereunder as a bankrupt Or insolvent, or the
reorganisation of Owner or any ejoh guarantor, or an
arrangment by Owner or any such guarantor with its
creditors, whether pursuant to the federal Sankruptey Act
or any similar federal or state proceedings, unless such
petition is filed by a party other than Owner or any such
guarantor and is withdrawn or dismissed within thirty (30)
days after the date of filing; provided, however, in the
tvent of a Default due solely to the threatened bankruptcy
of a guarantor as provided for in this subsection, Owner
shall have a right, within this thirty (30) day grace
period to sock Sayside's approval to a substitute guarantor
which approval shall be at Sayside's sole and absolute
discretion.
(lit) The admission in writing by Owner or any such guarantor of
Its inability to pay its debts when due.
(iv) The appointment of a receiver or tr4stee for the business
or property of Owner or any such guarantor, unless such
appointment shall be vacated within thirty (30) days of its
entry; provided, however, in the tvent of a Default due
solely to the appointment of a receiver, sot or olission of
a guarantor as provided for in this subsection, Owner shall
have a right, within this thirty (30) day graos period to
seek Sayaids's approval to a substitute guarantor which
approval shall be at Eayaids's sole and absolute disore-
tion.
W The asking by Owner or any each guarantor of an assignment
for the benefit of its oreditora, or if in any other canner
Owner's interest in this Agreement shall pass to another by
operation of law.
NO The failure of Owner to pay any am of money due under this
Agreement to Sayside within fifteen (1S) days after the
same to due hereunder.
(eii) Default by Owner in the performance or observance of any
covenant or agrsament of this Agreement or the Master
Permit (other than a default involving the payment of
money), which default is not cured within tan (10) days
•16-
JUL-14-66 TNU 16:
Jet 14 'PC, 16 : 0: THE 66 C(x'P► 41 0 P . 3:
after the giving of notice thereof by baysids, unless such
default is of such nature that it cannot be cured within
such ten (10) day period, in which case no Event of Default
shall occur so long as Owner shall commence the During of
the default within such ten (10) day period and shall
thereafter diligently prosecute the During of easee,
provided, however, if Owner shall default in the
performance of any such covenant or agreement of this
Agreement or the Master Permit three (3) or more time in
any twelve (12) month period, than notwithstanding that
such defaults have each been cured by Owner, any further
similar default shall be deemed an Event of Default without
the ability for cure.
(vi i i ) The vacating or abandonment of the Vessel by Owner at any
time diring the Term of this Agreement.
19. Rowdies. In the Event of Default by Owner, in addition to all
other rights and remedies available to Tayside under applicable
law, Daysids shall have the right to immediately tominate this
Agreement by serving a notice of termination upon the Owner. In
the event Amer fails to vacate the lerth within throe (3) days
after receipt of such notice of termination, then in addition to
all Other rights and remedies available to Dayside or the City,
Myside and/Or the City shall have the right to board the Vessel
and place it in tow or move it under its own power and remove
the Vessel from its dockage or mooring space within the Marina
or remove it from the Marina to a dockage or mooring as may be
chosen at the discretion of tayside or the City, and the Owner
does hereby irrevocably appoint kyside and the City, their
Managers, agents, servants and/or employees as its attorney -in -
fact for the purpose of acting in its place and stead for
purposes of such removal. In such event, the Owner does hereby
release and relieve Dayside, the City, their managers, agents,
servants and employees for loss or damage occurring during such
removal, unless directly caused by Tayside or the City's gross
negligence or willful misconduct. In addition, Owner shall be
responsible to pay all costs insured by Tayside and/or the
City, their managers, agents, servants and employees in removing
the Vessel including but not limited to wages, insurance
premiums, dockage and storage charges and towing costs, all of
which shall be a lien upon and against the Vessel. The Owner
agrees to pay all costs and expenses including reasonable
attorney's fees incurred by Tayside in the collection of any
unpaid sums due under this Agreement, or by reason of Owner's
default under this Agreement or of the Rules and Regulations.
Owner and Tayside agree that their obligations under this
Agreement shall survive the termination hereof until gush
obligations are fulfilled in their totality. The remedies
provided in Florida Statutes 32e.J7 (and any applicable
amendments thereto) for the non judicial sale of a vessel for
-1T-
UL-1a-Fe THI_I 16!PT
?L4 I 'NE 16:02- TfE OE C(VI VO4, 0 P1.2'
20.
am -payment of •oeiage are specifically included and
ineorporated in this Agressiont as an adC::10nal remedy available
top Tayside or the City and the owner sheds to be notified at
the Berth or the address opeelfied for Ow -.or under motion 22.12
III oennection with the llstiee required ut.-er Fla. :tat. 321.17.
In addition to any other obligations
wr:s;n are imposed upon the
Owner under the provisions of this
Agreement, the Owner shall
have all of the same obligations hereunder to Tayside as Tayside
hem to City under the provisions
of the Master Permit, and
aayeide shall have all of the same rights hereunder against the
Owner as the City shall have spinet kyaise under the provi-
sions of the Master Permit, all as
if provisions identical to
such provisions were set forth at
ler4th in this Agroment.
Owner shall further have all the
rigt:a afforded to "Owner«
under the Master Permit ano Owner
acla-wledges that the City
shall have all the rights against
0oner as it does against
Tayside under the Master Permit.
owner oovenants and agrees
that it will not do any act or fail to do any act which would
cause a default by Tayside under the
Masser Permit.
11. Termination of the Maater Permit.
21.1. Tayside shall not amend or consent to any amendow-t of,
the Master Permit in any respect which materially and adversely
affeots the Owner's right to use and erjoy the Berth upon the
terms and subject to the conditions whim are oontained in this
Agreement.
21.2. 1f the Master Permit terminates or is materially ehangod
to adversely effect the Owner without Owner's consent, this
Agreement shall thereupon autafttioally terminate simultaneously
with such termination of the Master Permit, and neither party
hereto shall have any right hereunder against the other party
hereto on account thereof; provided, that nothing in the
foregoing provisions of this sentenoo shall be deemed to any way
to alter or impair any liability which either party hereto may
have to the other accruing before such termination.
22. idl3plll.
22.1. . This Agreement stall boomoffeetive on
and only on is execution and delivery `y each party bersto.
-0-
JUL-14-66 TMU 16:07
?LPL I'd 'aE ICOW T4 ow CCx'P► 4" 0 P.34
al.2. CMIt to lNerstaheiat. This Agreement represents the
eosnpltte understanding between the parties hereto as to the
subject utter hereof, and supersedes all prior negotiations,
representations, guaranties, warranties, promises, statements or
agressiento, either written or oral, between the parties hereto
a& to the same.
:2.I. n • This Agreement may be amended by and only by
an instrument executed and delivered by each party hereto.
22.4. Va_. No party hereto shall be deW&d to have waived
the exercise of any right which it holds hereunder unless such
waiver is made expressly and in writing (and, without limiting
the generality of the foregoing, no delay or mission by any
party hereto in exorcioing any such right shall be de*msd a
waiver of its future exercise). No such waiver made in any
instance involving the exercise of any such right shall be
deemed a waiver as to any other suoh instance or right.
22.S. AwlicableLA .
(a) This Agreement shall be given effect and construed by
application of the law of Florida, and any action or
proceeding arising hereunder shall be brought in the
courts of Florida; provided, that if any such action
or proceeding arises under the Constitution, laws or
treaties of the United States of America, or if there
is a diversity of citizenship between the parties
thereto, so that it is to be brought in a United
States District Court, it shall be brought in the
United States District Court for the District of
Maryland. Nothing in this Agreement is intended to be
construed as a grant of license or a lease.
(b) Owner, at its sole cost and *opens*, shall comply, and
&hail cause the vessel to oompiy with (a) all federal,
state, regional, county, municipal and other
governmental statutes, laws, rules, orders,
regulations and ordinances affecting any part of the
Premises, or the use thereof, ineludiag, but not
1 W Md to, those wh Ioh repu i re the aching of mW
structural, unforeseen or extraordinary changes,
whether or not any such statutes, laws, rules, orders,
regulations or ordinances which may be b*Mftsr
enacted involve a change of policy on the part of the
governmental body *not the same, (b) all
requirements of the Southlorida Regional Planning
Council sat forth in Schedule "t" relating to the
display, storage, sale or us* of hazardous materials,
and (c) all rules, orders and regulations of the
National bard of Fire Underwriters, Sayside's
casualty insurer(&) and other applicable insurance
-1'-
88--'764
JUL-14-
?U_ 14 'PF Wed Tit A CCW'P'V4' 0 P.3S
rating organisations or other bodies exereiainq
similar functions in connection with the prevention or
fire or the correction of hatardous conditions which
apply to the Vessel.
l2.6. Time of essence. Time shall be of the essence under this
Agre&ment.
12.1. Head lrua. The headings of the ScctioW subseotiona,
paragraphs and subparagraphs hereof are provided herein for and
only for convenience of reference, and shall not be considered
in construing their contents.
22.8. Ithi_ . Rath writing or plat referred to herein as
being attached hereto as an exhibit or otherwise designated
herein as an exhibit hereto is hereby Dade a part hereof.
22.9. Assi_=• This Agreement shall be binding on and shall
inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successor* and assigns here-
under.
22.10. avera_eilit-c. No determination by any court, govern-
mental body or otherwise that any provision of this Agreement or
any ameadrent hereof is invalid or unonforoeable in any instance
shall affect the validity or enforoest:lity of (a) any other
provision thereof, or (b) such provision in any eirousetanoe not
Controlled by such determination. Teach such provision shall be
valid and enforceable to the fullest extent allowed by, and
aha:l be construed wherever possible as being Consistent with,
applicable law.
22.11, Disclalmor of PartneeshigNothing in the
provisions of this Agreement shall dessed in any way to
create between the parties hereto any relationship of
partnership, joint venture or association, and the parties
hereto hereby disclaim the existenas of any such relationship.
22.12. AIWIDA or t2tices. Any notice, request, demand;
approval or consent given or required to be given under this
Agreement shall be in writing and shall be deemed to have been
given on the seoond (2nd) day following the day on which the
sane shall have been mailed by United State& registered or
certified sail, return receipt requested, with all postage
oharges prepaid, addressed, if intended for Tayside, to Tayside,
Attention: General Counsel, c/o The Rouse Company Building,
Columbia, Maryland 21044, with a copy to Tayside's management
office in the Tayside Marketplace, or if intended for Owner, to
Owner at the Owner notice address set forth in the introductory
paragraph, except that payownt of the Dockage Pee and sales
reports shall be delivered to Tayaide's management office in the
D yside Marketplaoe during normal business hours.
.200 88-76A
TM -1 A -GO Buie . ♦ 0wen
MgtvIthstanding the foregoing, if an tvent of Default ourawant
to Section IS Mall have Occurred, any aeon notice from Tayside
shall be deemed to have been given on the date actually hand
delivered to Owner if hand delivered provided that Owner's
reselpt thereof is acknowledged in writing.
22.13. At any time and from time to
time, wit in ten 1 days after Tayside shall request the sauna,
Owner will execute, acknowledge and deliver to Tayside and to
Nyside's mortgagee or other party as spay be designated by
Sayside, a certificate in a fors requested by Sgysids with
respect to the utters get forth in Schedile "D" and such other
natters relating to this Agreewnt or the status of performrnoe
of Obligations of the parties hereunder as may be reasonably
requested by laysids. If Owner fail• to provide such
certificate within ten (10) days after request by Sayside
therefor, Amer ghall be deemed to have approved the contents of
any suoh certificate submitted to Owner by Sayside and Tayside
is hereby authorised to so certify.
22.14. Remedies_ Cumulative. No reference to any specific right
or remedy shall preclude Baysidt from exercising any other right
or from having any other remedy or from maintaining any action
to which it may otherwise be entitled at law or in equity. NO
failure by Sayside to insist upon the strict performance of any
agreement, tern, covenant or condition hereof, or to exercise
any right or ready subsequent upon a breach thereof, and not
acceptance of full or partial payment of money& due during the
continuance of any such breach, shall constitute a waiver by
Sayside of any such breach, agreement, covenant or condition.
22.15, Conflicts of t. Owner oovenants and warrants
that, by execution of this Agreement, neither Owner nor any
shareholder, officer or partner of Owner violates, nor during
the Term of this Agreement shall Amer or any shareholder,
officer or partner of Owner violate, the oonflict of laterest
provisions of the City Of Miami Code, the Dade County Code and
the United States Department of !lousing and Urban Development
Grant Agreemant, all as set forth in Sehedule "['", and Chapter.
I % part III of the !'bride Statutes, as the sage ry be
vended from tins to timN, or any other appiloable law.
22.16. Non Discrimination. Owner agrees that it shall not
disoriminate against any person on soot of race, color, sex,
religion, creed, ancestry or national origin or handicap in use
of the Premises, nor accessibility to the Ytssei while using the
North.
•21•
[:I.,.* ,
JUL-14-89 THU 16:09
Nx 14 *IN. w 9p. toe 0& c(v9w 4 , PAP
to V17KU wito 0l, ash party ft"te Ire eeee0ted and srssaled this
At! mmt or soom it to M esseum WA snealed or, its NAalf by its duly
wumis" !Op see nati.es, tM My aM far first Ns•s written.
III' KU/ATMT:
"gistwit reeretary
M:TNM/ATTUT:
`'`K Jtil•i�+�E -T
OATSIX c1ml A LIMITED PARMRINIP
ft: Asuse-Nlao1, Inc.
Osneral Partner
VIZ-90,11iont
NARBOR CRUISES LIMITED
Meek LONO, President
(OMNLR)
Jul 14 Is 16, 96 ht 1 o COMWV,
0.0
mumt a
to /e LawrtN *ties to oa*ntioA
Iv/A seftniM of �lttw 1MrtiM1 by swat
A& 14 OW 144* %C*JK COC,
Milt? a
aUL i• 'IM Mor'' M 10 CIC1~1
matt C
I&Wt simotiM ftl" &M 6"istioOf MOSMiy is 604
.. ♦ tiH .. � f r."h�C°i.�'aa`al i. " ri;
.ux
:F.\-,,'
rl
•t' �;�G�oT
j .. .., h - �: '• .it r i +50 '��i lfi- of f� tRTeIFL y.- 'd aby;i
1b
}yP
g cW
dM��I.. *[ yv 'y {�
4� l�. uiR -M� 'fr �1
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1
a.4 it F.41
LZRISIT D
The undersigned, sayside and Owner, under that certain
Mooring Agreement dated , 101 , hereb certify to the
en
other and to the others er nderv) as to lowes
1. That the Tenn of
the Mooring
Agreement
comences
on
111 that owner
Commenced
using the
Berth
on
108 . That the
Owner has
exercised
Its renewal
options un er the Rooring Agreement
such
that the term
to current
proposed
to expire on
2. That the Mooring
Agreement calls for a
Dockage fee
of
percent of Ocoee
•ales per
operating
Year.
). That no security deposit is being held by sayside.
4. That the owner is entitled to a setoff against the
Dockage fee of up to S and as of the date of this
Estoppel Certificate iremains to be setoff against
the Dockage Fee pursuant to the terms of the Mooring Agreement
5 That all obligations and conditions under the Mooring
Agreement to be performed to date by sayside or Owner have been
satified, free of defenses and setoffs except as noted in this
tatoppel Certificate.
6. That the Mooring Agreement is a valid agreement in
full force and effect and represents the entire agreement between
the partiesf that there is no existing default on the part of
says do or Tenant in any of they terms and conditions thereof and
no event has occured which► with the passage of time or the
giving of notice or both, would constitute an 19vent of Default
under the Mooring Agreement except as expressly noted in this
Estoppel Certificates and that the Mooring Agreement has not been
amended except for the amendments referenced
below:
7. That there are no actions, voluntary or involuntary
pending against Owner under the bankruptcy lava of the United
Mates or any state thereof.
$. That this certification is made knowing that the
other party and its Lender is relying on it.
DATt0:
SAY=IDZ CENTER
LISITSD PARTNERSHIP
Sys Rouse-MiamLe Inc.
JUL-1,-
■
JO. 1J 'a! t6aOe TOC W* co"4N
P.42
An tenant Identified on Attaehi tent I which tine$ the avbstanees identified or
Attathment Iaha11 be obligated to Comply with the following:
al Require that area$ within buildings where hazardous materials or
hatardov$ waste$ are to be vsede diWared, handled, generated, or stoaee
shall be eonstrueted with impervious Mors, without drains. to ensure
Nntainment and facilitate eloonv► of any spill or leakage.
b) prohibit any outside storage of hatardou$ materials or hazardous waste.
Jul-14-00 THU
e) Require all hazardous waste generators to contract with s licensed p6b:�r
or private hasardous waste disposal service or processing facility ant it
Provide to Dade County DER%I copies of one of the following forms c!
documentation of proper hazardous waste management practices:
(1) a hazardous waste manifest;
(11) shipment to a permitted hazardous waste management fac:l!tyl or
(ill) a ton!irmatior. of receipt of materia:s from a recycie' or a waste
exchange operatior..
d) Notify any tenant generating wastes of the pensities for impprope-
disposal of hazardous waste pursuant to ieetior. 403.7270 Filarlds
itatutm
e) Allow reasonable access to faculties for monitoring Oy the City, Dade
County DERMA and Florlds DER to nature compliance wilt. this eondi=iat:
and all applicable laws and regulations.
W4
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Noe
QO•tw
ON""
•twa•.00r [/mp•aeM•. At
ENNWW '
woe" towas f 081660rel. fiR
0%"
Wage
440p•w slrto•••ee
som,t
tao roa/nre• +1ANper
Net
w f
eewe•• • ooveire, lot a" Re
moan
leans• a•.o►.. ep
soft
0.0w lM"000 one ►wwYe lie sr1•pe
fmlt*
flnitemo6m fie.le4ap•l
•n.
�w p s�ielo here and a.••ee.eeea
ow~
avow~
setar..t•eae ne■oin••l
tr•.
SOW" 7
•..Sae ..moo
ftN•rw
!•Mtiaf tepr�p 00 •t onehnifft 1
p.,..pow
w�1•
Il.•Nal la•ete• weao,•neoe. got
t••r
nape
r�A
w40.e-w
......•. t..e.�....A •w....ee•.
wra+w
�e a" trap•• •♦.eMe.o
10.0
go 40•4 Sae
1..••eta •Span en.• •.....�.• •M•I�N a1.
"Roger
*ass ..t Mltoe e0a0000•
F]
-♦/s
=w
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is
►f
to
N
if
w
w
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tip•
�wpsff�wiww
tte ware. tows M.tAr
wR
Mwswtsf�s. !
— -
fw
lsf
wtisspw stN/ M�pstfsf+•
MwrrriM ttiwsp+ lwsiws
t1N/ RlN A.sw� w/ we al tooled
MMoN. M�wwwrt �
N
twm.ss&* &s. wast�•
ft" ��
w...mompw/st Now•swrt. tu«wtfN. swf
n.
�nw
wirwphftlim rnt ttnpwwOwtw t.o..ww
CNN to tlw9tist�
Mt► lrt
1w�.M�i twrw..N.A
9
A•
tL/sssiN one •wwwsw"
rat t1Npp 11riN�+s. w!
Ntt w t��NN. A:
-4
ttt
tlrswrws� sr wtwwtss�sf GAIM N
*up"
wttw.tini.s'i.t "W"wwips
wM
trNiM tow i1 sw% w~&rw
wwwp tam Mw+.s.. Aw.tl+" tsw.4ss
on
fts"d o tam srwsf
Linturwwpr
N
wl: swages ad Msst+. sMr **loops
n
tam
ssltplv twdwww M tbwwrw&oml 906410 swrwal
M
Tm r wtwtw ftvw*w wsM. ow"Msw+Op
lam
ft" snwpsssi.t s.r ft"" slogs, �......+..
tw
tbdm ww". tw..w iw
Nw
spspwNl aswowwbs fouls wage
team
sw. w lam sws/. r/s. 09
IN
saft» t Mwsss/as s1M/w some
W
tpfpltpwas6m t Ms dm"169m t wpw�iw� •
Nam
opows on"
twsswpiwal s ttwevwif am@% mow. We
it
stiwpt+. ef..s. Woo faswwr ow"
Ant
tpsobdwswt we piwaitwr twM/s
to
lb"ias *me"
if
if
Mwww+ swoissft �w
err"* sloe w• t.tst" *wsiwM. We
t i.A.flst tMwsbsasst09
to
smal"m sfbM so noises Pik ON go~ ism
PLO
owes is t+.srww.ws to~ ttwwiw P&G tappet .+
wiswrftswws wwwwN"I swwsirsr
wtRsis thsf tamps"
titlf
09604bpwo1 swwpmpr/ *Sol"*
/tops
iwspmpaw @was
Nt
N.p.srw One swwp+wlw •ttlsla m. We
we
forma/ mows so tltwpsbat am"Goolr
an
wtw46"t 08906tah. /woe MwMwpb
Vf
amoral sabs"twMs
IN
oboes slow" W"o
Vt
str►wwlp.w uwp Imul/lws
tfiw_MM_oN1s�f� flwMll
for fht sir t�Msl�M
f
Rwwawr/wt r ftwooftt `tiwrfr
wt►f
t tlr. *a a !Wm rsofwwlsrA Mw'ts.
oaf /M+w taA lows
PWA
,ttQ
t`ww iw # W%w". omgo lbswlwwt ftt o
bswN. we
�N
%ow.fw awl "WO94+Mf tywweN. st►
RIt
"hige"f'+M4 am** f ttlss��tlswwfws rlMs�iwam
- iM sMrw+.• Ole$ is."
yLL 1, IJ* 16:10 T1{ W
CCIMPIV-+1 0% P.IE
C171 OF KIAM: CL11
ARTICLt V. CON►LICT$ Of
INTLAL1T•
See 1•601. Appliea►illty of *rile)*
This article shall be applicable to and
►indinr typo" ovtty officer, ofhcia: and
emplo)so of the cite. including o%or)• Member
of ant board. seramisoion of agency of the
tit. (Code 1W. 1 1.101)
fee. 1.102 Trasseetia/ bvolaoss •lib
city; opptarssees ►stere tit)
olmmisaiea.
(a1 No person Included In section 2X',
shall onwr into any contract of vwoct •r+)
businew with the oil)* or ant• person or
*gene) acting for the tit) , or *haU appa► ir.
t►ap►esentation of an) third party Wort the
city eorssnission, and any such contract
a "wont or apposronce entered in vicilatior.
of this section shall render the transs:t►or.
voidable .
(►) The word "person" oppearins in subset
%ion (a) of this section shall include office►t.
Officials avid employees as sot forth it oecuor.
2.101 horsof and the foiloa ins farnil> merr.
bets of such-persor."; spouse, son. daughter,
parent. brother or Gists r
(c) The prohlbitior, upon activity ohich is
set firth In subsections Is) and W o! this
section shall remain ir, effect for a period co!
two (2) Years after the officer. offec,a' or
employ" has left city **?Viet ar tetrMnwte
city employment (Cede 10E.. 1 2•1M Ord
No 11M.1 1.11.11-791
$oe. 1•903. Aeeoptiag gift&. ou., fross
persess eostraetiag etc..
t tilb fit) .
tver) o!rcer. 0111cls' at eef,'.ovor of the
city, including eve!) mornber of &r.. Soars
commission r�r agenev of the cite, is esyros%'%
prohibiud lrc+rr. accop:,rg eire:tl: yr rr •
dlfertl.. frvro an; pe►sor eompar% fl? o►
corporation W which any putch"t order or
contract so or srhl be swarded, any ►e bs
lift, ftsnt• or anv%him of value • how r,►
*aeept whim given ter the vse and belie
the oily feed# 11"1. 11.102)
gee.1•!Oe Wsi%or of recvireeos:s c
article.
(s) The reQui►omenv of we wtoc;e me,
waived for a particular Vo••
action or va.'+sacteorts on)) ►t at, Warr.s•.
trots of (oal•-fifths (I IS of the son bert of tr
City cornaiseion alto► Public hoatim Fal. •
084•e1 08) be affoeW onl) alter fsndAr b;
four -A the (t/f) of the •om ern o! the eit)
e Minission, as Worn
(i) An open-to•all sealed sompetitive bid ►w
been submitted 6) a tit) person as w •.
forth in asrtien 1.801 hersef, or
(2) The bid has Aeon submitiad ►) a perear.
of firs offering services Within the scope
of preen* Of architeetu►*, landeeap
orchiteetute, prefeaoieneJ onginoer,a; or
rogiewrod laod ottrveying. as defined b)
Ow love of the •tat* and pursuernt 1e
provisions of the Conoultant's Cospet.
Uwe Negotiation Act sa we awe In force
and sr soy be hereinafter snaetod, wd
who?+ the bid Ma been submitted: ►) a
sit) person as set forth in section 11•3::
►#roof, or
(3) The property or oervises to be in••elved at
the proposed transaction at* unique and
the city aonnot oval) IYo.f of suet
property or services without onwing ins:
* tnnaaetion %hich would violate th.s
section but for aaiver of ito requirements
and
(a) 'rho p►WV#d transaction sill be k the
boat inut at of the city.
(►) SOCK findings shall be spread at. tie
Minvtos of the samssioslon. This section shay
be applicable only to ptosperti••e t►anoa • .
tiono, and the sommsesion may is •o es"
ratify a transaction erntered In %olatior. o!
the seeteot
88—'764
JUL-14-69 THU 16:15
44
1]
be I-M Dkofloo"to of forties w tmeresl
►.% petoont melw"j pros:ti6t1or•
MilwotS.Ole..oft eit) "sovefie"
or ►oardt.
N' All 1artKs DoLwi &IV mum hom- m!
wtltrest a pits" M the ehl sm aw or or..
wt? bwtd Oub retwect w any. "al r!c1f't> ten
eo�o:rff to me%e full dialwWe it K: td ". o
Ilirir o1n►l►f! ►. the cleric e!the city ecs &W-I m
0 ooOetary M She Marl, of all panot savior a
SINreial "V"t, oltAot firm oe ind►w. is tho
WAOM otter or am pnaentot,w, lint•: moo:
R putme Swch dioel"We Moll Mclnle bvt not
be WNW to, diorhowe of all Qotwo, tenon►
MvitK " 9"Orthip metros:. Trott or tml:rett.
to the oiib)oet real pr"Ort�
a) Ue diocloau» nomirod by ovbow:oor to
boat! so% be :sole or tepidewdop ore be not
ooaan , d order ao ohowe that the aft-oiotrot.
dowlooel is oreuraw of the Use of (lilt; ono at
all eruct immej%er atlsi:+ o wommblf ".41 wu?
an) Awe in the d K)nwe trJortns:Ic- ""thee
an! u oocwote as of the thou of tort c:.c b� tho
oil) eow+slaslon or aP;hcoblo Mare
It' MAere the dtocloswo T"-Mrrd ►.% s.nocui r
to' htteof is t+o.. malt. the eft..r�:er. N
opplotal le boavd shall Mt f0rmdet tho =•fNRta
tear. for"? rt4Yfi: or pf.111or are I;"j" a.t!t
oetnior. be occf'ted !oo idiom 10tg %; w;&. 4,
1.1. f•1:aZ Ord No 979f.1 1.1 F4i
irro 14M.IM6. ke"rved
f •)
JUL-14-00 TNU lids 6i
', 4T
Ju. 1.1 'W W tr tot ow COMPa►+. 4 P..f?
111 The IttT "te?val.hht flnlst+eiai stores• 11".:11 Wet
to ov ntr Att, di!. sty of it-Crertt, , It it • I•• r M.: o'
N+t-te of the oststandrng aop-tat sts:k 1! V) terpetao-
tW: at a dnt:t t►t htditect Imetcst o! te• it? tt!: at
tows i in a firR, ptrtaershid, or othtt bus:tess tt+t,t1.
(Al The tarns "ilnmedisto tlamily" aA0 toffy tt► the
sot+u•e. patents Grid children of tM pe*san Mt•ol•ed
whe% at the time in tltsesti" reside grit! said person
% It hen a single household
1101 The terns "t►ansatt any ►amass" 6W refer to the
pwehoee or sale by the "unty of Swific foods or
Services for a consideration (Ord Kc 71-62. 1 1,
11.11 •'M. Ord No 12-23. 6 1, 8.20•73)
(Cl Prohibition on t•v%settind ►re+ness Wi0.0 thr
Nv pert -or. included ir. the totrns defined in oubiectlor. Ib►. )
1h►tru0i 1f - and to subsectton (►)(1) shall on' -at into sn%
esntt►a't .e! iron+art one business in which he or a mirmbr*
of hi. Irrrnt-diste ta+-.t!• has a financial Interest. d ►et: no
Indlior:. Mith nadir Cuunt) or any person or agency acting
(.or Dhee Ctruntt, any sn� such contract. s=reerner.• s+;
pu4int.• en=vF.rr.t;tl on:eted it viula:ion of t► ► tubseeti, r
06% ►erde! Inc IrMIssactton voidabit Will%' tlalatim. el!
ship st:b.ettspl, sha!i eonttitute rnalfessante In offset and
shill: Cote! 1--rfot:u►o of office tot potitlor, tr:hirtg hortir,
slta': pt.-Rib,: W r 011P Illeya: the psYmtM t.► rases. spotm:
s••eas"-,ors• or (weit los atrtleft p►uvide: b) eounl"
i ..e�r�n..n:. ns.r shall a*+'Ihirr In this subso:tion prrrrhaim
sot malo! ill -Pat the ow:/.as• tr! buns!:. snlsc;tv on rime► t r
ssll.►r • •r il•s' tr.►� be Issued b) the thrNoij!
►rnus t%f lei. r.t directi% froRi of of tO t11n:
E►ter+p wr. v Matter 1164 roouiro"Wats of tt..s sub►tctts•r.
Mliv be, Mas•ed fr•r t Particular tronaatts:t only- b�
0111MAI1•.e Vute ts! tMo-thstds 12/3) of the ertl►e board of
team. commissioners. after public bts?Ag Such tssAvi
vw lie effecte-d only after findings b?' two•th.rds (4/3) of Ott
er:r►a• Wore that
fit Ar. optn•to•ot! asolod eompatitivt M hot bear.
ovbrr.ttted b: a count) person as defir+t0 sa suboeetroa
Ib►tyr. 43) on6 W. or
121 Tht• bid hot been submitted ►v a prson of firm
offering ser►'iees within the no" of Practice of
vchsterturs. professitnsal otyineerirsg s! taglatetod
land survn'ini as defs"d h the less V the state of
rie•sdo and purss+am it, the ►ro..1 :-s o! the
CtrA`ou::al.t►' ( %M110et1tto'e N01141411or. Ar: and Mhion
the b;d t.e• boar. submitted b) a rewr.t. p icm deflnod
/tr 1r.,1.64itv! 1. I31 and 14to or
JUL-Iii-RR Tutl ►Aatt
JLL 24 'tom 16; 1Z Tit OW CC,rf^+:rr, ON P./4
it, t;,rr► 1-0-4.4t %t «►nor• inelu'lt - • I" 10►r,iN ti-
lat..; rr. s►6s►rtcr,� t1 t it►revtR It r s!: 1.►rr:'% w► It
Itrtc:q , /N•cat, oeeept or PM." any fill ►4vier o •6lbf t1
tut•:ty•f to AvIlars I12:•.00! or there• who'.1t• N+ t►e form of
aim"). service. Man, travel, oatertaim"ht lasp:tat:t)•, thanr
of li twi►t• or it, ant wther iorR, wade• c.rtusn►L:nNs tt,
S hits, it eveld roawlab►% br it•fetred th:• t►.r rift lost it. -
tended to influer•et kin.. or toum masons• : k arorlet U,
influ►nre hin:, it, the ptrfor►nancc of hit aria► d0ie• o•
was ir!trde: at t rtv.td for any official s•:+on or, his lai•:
Na ptrter. s!.atl, directly' Of ind:reetll. effr c• snot'@' and 1160
lift to on) l+erion intluAtd in the ttvint dc' •tJ it StNw ic'
It•) or to or.). me•r►Let of his Ismnsedit,;e to- :•. Not►•it:r e•►r•.
tsinet htreir owt M die". et to rro►-Wi Wit its' eo:,; •it ►
Cone si•er:firs'') authuri:el b� CP--t7w r: Fivit.• Stw. --r
10:: No 714.2. 11, 11•2)•72►
of. C e,irlc•.•t t, •!►./r0,:�.•t t/i •• ..: l., •• .
&.0 IA; Mi. sir,+ Shwld ati� remn sarluded at :rat lei nit
it subt.tuaris A•I, t%rcv;�. av' be tmji!v�o: a to ;a•
fitn.. pa-tr►c!.'.. r et ► wince. wiq i•, r hi:!• •• toe na: h3%, :.
eo-.;►cll,r+� f�n��eia! antcte�: either h•R•.!� c• thr. .:'. � r
/:' e' his iti-m d,31% fotni!�- Suil ithrt.id to said evr, i,•••
fire, partnership or business entit! ho►Y w!rontial bus:nesr
"n'.' .ltlntnts w of from the coon:% of and or.•2► scene. or bc•
$0,tt: v divert regulation ►.% the eosin%% r i eeun;� agvr,r�.
then said person. shall rut a sv orr+ staunit- disclosing s4cl,.
tn►pl- sntr.! and inures: Mitt the clots, of o t eirettlt coven M
and fo• Dade Cornty (Ord Kc 72•62. f 1.11 • ., T2
fl� Srrloitation of of/iris! positive ply►-�:ted• No persor.
Inelwled in the Senrit dtfinod to subsettiNs (b) (1) througt
(6) sAall use or attompt m use his official peslties is pectin
special privileges or esemptions for himself It otwo Meept
AP may bt spaeifreally permitwd by other wdinswu and
rtseiu:lan• pret•iotisl! ordained or adeptet er hereafter to
Ow iordained of adopted by the baud of tout; eeaitriaieoets
lord No TI.C.1 1.1141•721
M 1rot,ibNor: or: trio o! ro,144(11141 left.-wet•oi.. No per.
so: IvIedo's Ira the terms detantd In s twnions !b)111
thr+arR 16) shalt atcay. employment or ea/age to ally ►tit'.
me or profenionsl setivil). which be 01P.. rose ably ou•
pert •sild reovito or ladate hit. to dw::Wo tatidestial
itiformat#so seowirod by him bt, muss of h:6 official paotu".
at ? OW! ht In tort ever dis:los► eonfidev-s! istemetie►r
torttered or reined throort, ce oitreisl pesitset with the
rbu@44 •. net she'! he ever use suc► infoirnatitr dira;tly or it..
/art. .: !:• ► • ternot.s' o..r. er W-91.. t0:: N� 7:./•, 1
11 • "
fw.
JUL-1e-80 TM
Al 94
?�L !s '1* It:13 Tat -oUK Carfl P.V."P►
101 Co%6ah6'•1s All Petesst of time Ow -iliac p?sfef
jiop ,. ottritea r def/1Nl i oettiota 1•1: 411 140 s*!
it 10! the ONe of Nette►rlitat test C:.-:x. it Lisle
Covent) of asr nwsklOolittes. Nei► W-:Hs or O N—
lnfali 0". oho`t aW61) With the 111:r j ►elvi"wime
of evuee.tios mu a e" Mthite taint' % (101 dad a of
the of4.-%1%V date 6emt. All lemons t- ftml evio.
Mont nt to W offset" act of ail section, which
saw N+ oswllrtitive o>wot Uss qmv ale Owns)
or on) of Its atrnitipalRios, "Wit aOrcios w Mt td.
1ue11tslitise asset and ovrottast to somion 1.10.4 of
Me foie of Notrogiditas Dose Count) "ll Imply
•Itt~ the "Pei lar 1"91 wit aw of outactios (11(11
ON this section whkin Why (80) days of execution of a
osstraet arls!"I oot at void wen0etitive awotiations
and prior to any Paywh"w troth said sound). Ratinifi.
polities or other a=ehtioe er Nntrvtew-ls`itiss Tailors
to "lnP!% with the Nrw Mteof b) aa:l► psnons or
tltlttl shall render ssistlns tontraeta void►►le and shall
automatically void any. wat►eru s1e;0:iate'/ &net ex.
ocrted S.;Wwquert to the otfortive date of this armow.
where 14 ►squired islurma1w.. k sot talrni*ed witt:lt,
thirty (a(' . days of the etecutil.n of 641 cefitrw a:
noted hortif.
IS. Rtp•.r:, f:1ir:; AV dtocurnet+ts req►ired tt be riled Mtryr
d•r t• ccdr.!. sem"P.t t:- cor.PLlt.nti sha' tc read M1:► the.
erp. v fk•::+01.: DwUln.ar.tr rrt;r:ti: as 1r tile! hit,
Yhart 7✓� 1hunit %', PersoN• of r'obsu%a' : t ant all M iiira
•.its• lht tr.yr. t cps' ti►tit of Ikm enlil�
its Tr41,c 01mlosurt Al. dervassts filet nrous•,t t+, 11.4
6.0--ectr.i. PLA46f rear:. M1:i,+a. t►.r
R.fa' .rt t• (iAi; :t! 111'. Fiotiiia Sta!`%do
1:1 Tilt tonstructic.. o! tt.i► s:Lsertior. &)&&V
Ira t,reldrred ♦fi atilt►t,krrier►lil tti snit Mr. tr, oYbp:hvllgw
14 a►,, W.64ttr4ab of Malts? 11:. T1"w& ststau:.
Of L%.v utwo sad rervlstiens Orotalt filed "weawiel.
Kw Nc S7-13 a :. s 117-0 Old xv V :f a 1. 4 IV tj
Cad N& !e 3� t 1. 616 6:
ii 1 Corthrl:co eta►doY"+eat Oro0t6tted. 1►c Oetsdt intlisses
In the tones de:.re: tr. sulowiohp (b1(11 tl.lout!, (t-) ^69
unpi other illnptolrinent rrwkh weW bupo'r 6u Mapos d-
ercr of jvdtw4r.t it.. 4110 Perferslssee of 6:1 WAAse ditties
(Ord NO. "42, t 1. 13•214T . Ord. NO MIS. 111. 6.1.0171
riot 1 t,-1 --- - - --
Y,i� Ia A* WI-T THE W ccwlF*v4. P.S1
arent)•. 1% eMnesttion ulth Yt particYlsr benetlt
"t'l by tl+e third Perser. xv moll sock Ptls:n •i -
past it, 1114) Boon or before a•: t►1•
►o►•al of towastl of kral advia. • It a par. %146 stoke
Iota' re:.1! eta t:.ri) ore"• %. 11.►ft j%
tht awl 10 post►tr
(1 ) NO peract 611011 c it t!•e tenr.1 ttflr•d it 6049019M
(b)(1). (t) and 411 attar.•
jteditis' persote.t:, std advisee. PoTter.rt'1 &..a'I at..
ye.t "Ntt thf te:t:r lotard t• srlt.y n: •t.ld. i►l�
o" Ght #ones, o,:rcr direetly o: Orturr. •+ viv..a:t.
e nd rr,st. o Ote►entAtift Of, 19 .': o! a PA t• •ea:.
It. .0. M", t % 60.) I.f.nat cot.:!..:. test :.c6't. t::.e.� .
docis:c.n opInior, felt a:hadr'. fran:!..f•, e: *1%**
b stf:: eeoOht by 0.0) tlArd Pt•+n ,cr sl•►" a:
10104" ft..•ire d.:8.:1y t! ini t• e~
�:. •• > fur"..' far ott%icts tOP.90.1 tc a tt:••t 0.r�
�•!.: )..' r;',e: It., er it ; s2•re Cant! *. fr1-
li c• c.,6m:� be.srd Cr v e.L.c:. sic► rert—
rtt%er Ir. cc-ne::'rcr. (0.11. N. t!.. 1"a.
t'.t tr..?e pit:)• N:r a).a9 outy. ;Tt1:1: e;%r!69 11, at)*
c»r: e? b•tcre ark• ed*+itlil.w •-t trii:�.►' to tw%st'
or .e,a' a: •IILI tt a third pan; •ho $tail lvrt '
fry►# t1+e bunty board or a►enr+ e- who.. #.cl. rvimi
strm tltcutt. the w:: In QtW:se►n. HtMe�et, th.s
saetlrn aRst: nest Prohibit an are! -le : ser%:r.; u :lhoit
eot:�•er.ss:Ir. tr t1.t Late Co:. •. Sure of Ft,o•n•
Retolation or on any stthltectcrs' beard, whose sell
lonelier. is Is ►sss on the soithe•. a of plans sobmened.
frorr, svbtnittind Plans SO `tRa`: o! a tlitnt to 1951 aA
snub arember Imakes la"M •is rtprasoslation of the
aPPlieant and diooua)Iflsi blow" !feat s peakinj or
Venal or otherwise Parucipatit;t on outb applieatl►z
ford. No. 1242. 1 1. 1141.76 Ord No. 7a•lsi.
i•!0.78 ; Ord No. 7S•111. 11. 6•1108 ; Ord No. 17•19.
1 d. 6.1.77 ; Ord. We 7641,13.6.16•79)
(n1 Altitene r9h(bited who% flu% i' dtsitre#tor dn"h•tL
No Parson iselYded in the tortes #of1W A stsbseeti*us (b) (I)
lbrook (4) shall Partlelpsis in as>r o•.tidal Must dimity
of Isdimt,4 affeetins a ►tssinoas in %Crli he or any tfllttehe r
Of hie Inlreediote fornily has a financ4' Invteat. A flaarcW
latent is defined to a special flnoncla' tnttrest, direct sr in.
dlrl:t, to that alto. Is mad is seater. '.GS of the toual='o
shorter; or as a finai.cisl Worm ore de:tned it. SMic•n 7E:
of the Restatement of the Low of Ton: as an iarestwwr.s c-
sonittl.ir►S in 06 nature of an in•yavlse-:. Tkis secten sh•.:
last Pfailibit sn� offlna', aff"er. Mnl::)tt w ptrsar. tt.
r•II
16,. 1.4 '1* 16:14ht w cl1"41
04
P.0
Itl tew•rll• 0t••d"1111r► to ewrfr► Afaie11111I or. MucV. SUIP.-
we o•.) Rr1or n..Atd M W t ffm Ootr. of in ovuertiot ltcl
fll thtoYrl. it. a•� t kwttom. WIN to in doubt Is to 1A1
b►art r or opol"tiet of 0.11 ow~ of Il4mn
lust todt of e:h.tr ortonanrt ti t'r e►heh"ef ow?
jereen %k te1.J. ► wft.iteo w 0* aortt.r M M+ flout,. 44 1r
Me oO011411J.1 %. if two Mid Wdlnat:ee lot M blualf. be taa.V
e11b•T.it to tht cc;;- :� ottorMa a full vans - etatemeat of IN
hltl ar: /Yts•it•.• ht itat► T. taut:; 8..1ornty 111811 thtl
lead♦? or eZ:t1c.. t: $wet. ►er"m ent ere•• 101161h the►e ed+r•
lase Ik ithoYt met t' tt.t r4mt of 04 }errs ad%loel rnhe► etch
Proof. noven t t►s w of hip amc ford No 19-K. � 1,
a•lMfi. Ord Nc, 1OWS. 14. 9.1•71)
(a) tqI •►f,.. JE•e•) peltc•:. v►1•c it frr:ae: of a Viola;tior.
o: IR.r or:t,c- PA' be purli►hes b1 a ftrt stet to excels fs%►
hvildre: do1w • w5ric- 00; of or-pitowe-1 in tht evert•.•
X! fcr to! R.rc ttin.) W-I derc es b)• bttt. eYt� for.,
am Imprleonmt-: fold No. 1182. 1 1. 11•24442: Ord Kc
T3.2t. E 1• S•21 •': Ord Kt. 01.13. E e. 1.2-TT
It! if ark' autio-•, ec►ee~iat.. elaulf e! prt;-
lrir.v 0_1 t,rd. :•cc Is held irmol.d. IM remainder of this
Iect�r:. a►a': Ir:•. , t a'ftcu' l-)• ou::• IOt: Kt
is•t:. E 1. 11 •:: • :: G:: ?� c i•Z►. 1 6.2c.71. Ord. N c
��t1�''• ����-G�t ••c Sf1: 1 1. t�t�ftt t••► C�!► ►r ferwt� t :•:: 1 r• • • tc ttaru• off,"?$ &fit t�flrlttr Ift"1t+�tthls :rr
r.
•1M•S •. ! Ike rt.• Got "&lied /r IN. t/1`tti a a"
P••
►e.► I t.t is►w►• 1 :•I: I so$ rtr+rtt r►tr. Olt N6 !e•u, u
Sk, it • Li.��E
Inhibit C
MINE AND VOCKAOt PE1M11t AGREEl E
This Permit Agreement ("the Agreement") made this ay
of , it" by and between the bAYSIDt CENTER LIMITED PAR"SRSMIP, a
Maryland Limited partnership having an address at 10275 Little Patuxent
Parkway, Colwbia, Maryland 210114 (hereinafter referred to as "baysids")
and • corporation,
having an address at
(hereinafter referred to as "Amer").
WHEREAS, bayside has entered into a Revocable Permit ("Master
Pera:t") dated , 1966 with the City of Miami, Florida
(hereinafter referred to as or ity" fuse of that certain slip adjacent to
Miwo ring (hereinafter referred to as "Marina") shown and designated in rod on
Inhibit A (hereinafter referred to as "the berth"); and
WHEREAS, Amer is the owner of the commercial vessel known as
« " (hereinafter referred to as "the Vessel"); and
WHEREAS, Owner desires to use the berth froc bayside for the purpose
of condiciong a oosmercial vessel known as
the out of the berth which is approsL■istely feet in
length which can s000sodate approximately passengers iu 1w
be that which la seafteted hem the Owner's •eseel out
of ); and
WHEREAS, the conduct of Owner's sightsesing venture and use out of
the berth would be of economic benefit to bayside's waterfront specialty
center adjacent to the berth (hereinafter "layside Marketplace") and Tayside
desires to permit the Owner to use the . Math under certain tors and
conditions;
MOW, TN9KF0U9 for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, $ayside and Owner agree u follows:
1. t. $object to the terms and ooaditioss of tm
Master Permit and provisions of this Agroement, Myside hereby
grants to Owner a exclusive permit subject to the rights of
others set forth in this Agreement to use the berth for dockage
of the Vessel for the sole use of conducting
and other lawful related uses TER
operated in on the vassal known as
which is moored in such uses ereinafter
referred to as "Permitted Use or the purpose of this
Agreement, the Vessel and the berth are hereinafter collectively
referred to as "the Premises".
70� 14 'E: 16:1° To{ "% :,."MIN 41 0% P.!A
!. ttM. The tone of this AgrooMt shall be for a one (1) year
tors ovemeneing on 19 and ending at
midnight t:T an '9 Thereinafter the
"Orialnal Tenn"). r"ided r is tat material default
Wider this Agreement or the Nastier Perolt or the Nastor Permit
Pees pot Men tor•inated, Owner is granted an option to rsnaw
this Agreement upon the some tams and sonditisnm far up to
niaets" (19) editions terms (sash galled a 'all -am I Term") of
ape (1) year each, soomanoLng at the stpirstion of the Original
Tire or the um"Istely proosding Aenewal Term, as the Mae hay
be, and terminating on the amiverrry of Bush expiration, by
giving Aayside express written notioo of a rsnowal mot more than
one hundred and twenty (120) days and Isom than ninety (90) days
before the date on whloh sweh Asnowal Term If to ooMMsnoa;
provided further that at laysido's optioo, Bush renewal request
shall not be effective it at the expiration of the Original Term
or the immediately prooeding Aenewai Term, as the as" may bat
an wont of Oefsult shall •slot hereunder or Owner shall be to
material default under this Agreement or a def ult eotioo shall
hew been issued by the City unlor the Nestor Permit due to a
act or emission of Owner. Vithin thirty (30) days attar
sommenoes nt of a Asnewai Taro, the Owner and Asyside upon
request of either party shall osscute one or sere written
sa wranda setting forth the beginning and termination dates of
the Renewal Term, determined in s000rdanoe with this
Agreement. for the purpose of this Section ! the term
"material" shall include, without limitation, monetary defaults,
violation of the Permitted Use elsuse, and violation of the
terms of Sections S and iS of this Agreement or defaults
pursuant to *louses 18(1)•(v1) of this Alre moot. for the
purpose of this Agreement, 'Term" shall scan the Origiaai Tsee
as ostendad by sash Renewal Tom.)
I
(a) During the Ten, Owner egross to pay Saysids an amount
equal to percent (`f) of Gross Sales for each
Operating fir, —which payment shall be made in monthly
Installments an or before the twentieth (loth) day
following the close of each montk based upon the Gross
Sales for such month (hereinafter referred to as "Dookage
Fee"). Notwithstanding anything to the contrary oontained
In this Agreement, Owner shall not be obligated to delivsr
the Vessel to the berth and to open the Vessel for business
before , 19_. The first monthly payment of
the Doa'"ge es due hereunder shall include Gross Sales
from the date of the earlier to oewr of (1) the
sommenoement of the Term, or (11) the date the Vessel opens
far business out of the berth, through the last day of the
month imm*diat*ly prior to the first full oalendar month in
the Tom. As soon as practicable after the and of each
-2-
?iIL 14 ' E;E 16 :16 Tr{ R OE C L'V I'«u 4. P . n
A A
Operating Year, the Dockage Fee paid or payable for swab
Operating year shall be adjusted bttween Nayside and Owner,
and each party hereby agrees to pay to the other, on
desiane, the mount of any evetas cr deficiency in Doeka#s
Fee paid by owner to Bayside during the preoeding Operating
Tear as try be neoeasory to effect a>>ustsent to the &gr*ed
Dockage Fee.
(b) The first "Operating Year" shall oecosnce on the first day
of the Term and shall and at the close of the twelfth full
calendar month following the *oWA6-100ent of the Term;
thereafter, each Operating Year cabsI consist of successive
periods of twelve calendar months. Any portion of the Term
remaining at the end of the last f6:1 Operating Tear shall
eanstitute the final Operating Year and the Dockage Fee
shall be apportioned therefor.
(e) "Gross Sales" means the actual total salsa derived frog
sales of all goods, wares and moro Andise sold, licensed or
delivered and the actual charges for all services and
privileges perforsed by Owner or by any sublioensee or
concessionaire in, at, from, or arising out of the use of
the trwloos, whether for wholesale, retail, cash, credit,
trade-in or otherwise, without reserve or deduction for
Inability or failure to collect. Gross sales shall
Include, without limitation, sales and servioes (a) where
the orders therefor originate in, at, from, or arising out
of the use of the Berth or Yeast., whether delivery or
performance is rude from the North or Vessel or frost some
other p ace, (b) made or performed by mans of asohanical
or other vending devices in the tarth or Vessel, or (a)
which Owner or any sublicensea, ooncessionaire or other
persor in the normal and customary *ours@ of its business
would credit or attribute to its operations in any part of
the Borth or Vessel. Any deposit not refunded shall be
Included in Cross kiss. itch installment or oredit sale
shall be treated as a sale for the full price in the month
during which such sale is made, regardle&s of whether or
whoa Owner receives payment therefor. No franchise,
occupancy or capital stook tax and no !noose or similar tax
based on income or profit& shall be deducted from Gross
Sales.
The following *hall not be inaluded in Gross Salts: (1)
sash or credit refunds to owtomers on transaotions (not to
es@eed the actual solling price of the item returned)
otherwise included in Gross !ales, (11) sake of trade
fixtures, machinery and equipment after use thereof in the
*WAuet of Owner's buaineas, (III) mounts *cheated and
paid by Owner to any government for any sales or exei*e
tax, (iv) the amount of any discount on *ales to sisployses
and travel agents, and (v) and ese:uding up to one-half of
one perosnt of Gross Sales for bad debts.
•3-
JUL-1•-9d4 TMU 16:29 G3 0 =t
JLL I- '8E ]6: 16 THE ROM COrea7+, p.S6
(d) Owner Mall deliver to .ayside: (a) Within twenty (10)
says after the close or each calendar month of the Term, a
written report signed by Owner or by an outhorited officer
or agent of Owner, showing the Gross Sales made in the
preceding ealendar month and (b) within sixty (60) days
after the Slogs of "oh Operating Year and after the
termination of this Agreement, a statement of Cross Sales
for the preceding Operating Year which shall conform to and
be in accordance with generally accepted accounting
principles. The annual statement shall be accompanied by
the signed certificate by the chief financial officer and a
copy or a review statement from an independent Certified
Public Accountant stating specifically that (1) he has
exae#ined the report of Gross Sales for the preceding
Operating Year, (!i) his examination included such tests of
Owner's books and records as he considered necessary or
appropriate under the circumstances, (ill) such report
presents fairly the Gross Sales'of the preceding Operating
Year, and (iv) the Cross Sales conform with and are
computed in oompliance with the definition of Gross
Sales. If Owner shall rail to deliver such annual
statement and certificate to Tayside within said sixty (60)
day period, Sayside or the City shall have the ri`ht
thereafter to employ an independent Certified Public
Accountant to examine such books and records as slay be
necessary to certify the amount of Owner's Oross Sales for
such Operating Year, and Owner shall pay to Sayside or the
City, as the oast may be, the mast thereof.
(a) For the purpose of permitting verification by Tayside of
any amounts due u Dockage Fee, Owner will (1) cause the
business upon the Vessel and at the Berth to be operated so
that a duplicate sales slip, invoice or eon-resettable oath
register receipt, aerially numbered, or such other device
for recording sales as Tayside approves, shall be issued
with each sale or transaction, whether for cash, credit or
exchange, and (11) preserve for at least two (2) years, and
during the Tares shall keep at the Owner's address for
receipt of notices pursuant to Section 22.12., a general
ledger, required receipts and disbursement journals and
such sales records and other supporting doourntstion,
together with original or duplicate books and records,
which shall disclose all information required to determine
Gross Sales and which shall conform to and be in s000rdance
with generally accepted accounting principles. At wq tLu
or tree time to time after advance written notice to Owner,
the City, Tayside or Tayside's mortgagee, their agents and
asocuntanta, shall have the right during normal business
hours to make any examination or audit of such books and
records Mich the City, Tayside or such mortgagee may
desire. if such audit shell disclose a liability in any
-N-
J
%L I IOF Ii:1— Tr{ W
C0ta,A 0*4 p.e-
Operating Year for beekage Fee In excel& of the Dockage Pee
theretofore paid by owner for auct, period, Owner shall
promptly pay such liability. Should any such liability
equal& or exceeds five percent (St) of Dockage fee
previously paid for such Operating Year, (1) Owner shall,
In addition, promptly ay the reasonable cost of audit and
interest at the Default Rate on all such additional Dockage
fee then payable, accounting from the sate such additional
Dockage tee was due and payable, and (ii) an 9vent of
Default shall be doomed to exist unle&s, within thirty (30)
days after Tayside shall have giver, Owner notice of such
liability, Owner shall furnish Tayside and the City with
satisfactory evidence demonstrating that such liability for
additional Dockage Poe was the result of good faith error
on owner's part.
(f) owner shall pay all amoints Out Tayside under this
Agreement when due and payable, without any setoff (esoept
" provided in Subsection (g) below). Any amount Out which
is not paid within fifteen (15) days after the sash is due
shall bear interest at the rate of the lesser of (1) two
percent (2%) above the prime rate of interest charged from
time to time by The Chase Manhattan lank (N.A.), on short-
terr. loans to large businesses having the highest credit
rating or (11) the maximum rate of interest for which Owner
may lawfully contract in the State of Florida (hereinafter
"the Default !late") from the first day due until paid.
Axaints due and statements required of Owner shall be paid
and delivered to Tayside at the management office of
Tayside Ir. the Tayside Marketplace during normal business
hours, or at such other place as Tayside may from time to
tine designate in a notice to owner. Any payment by Owner
or acceptance by bayside of a lesser amount than shall be
due from owner to Tayside shall be treated as a payment on
account. The acceptance by Tayside of a check for a lesser
amount with an endorsement or statement thereon, or upon
any letter accompanying such check, that such lesser amount
is payment in full, shall be given no effect, and Tayside
a" accept such check without prejudice to any other rights
or remedies which Tayside may have against Owner,
I (g) Owner offset spinet the Oookage !fe due in the Bret
tw (:rating Years an amount not to esesa0 `
%blob is the seat of installatiea of the iestr-Taal
haility lid by Owner pursuant too the first owl - r ea of
Tsetion I and .Owner's proportionate share of the
10"Wiati0n foot of WO Sewage Rheility (hereinafter
ftfined). lush 0""t shall be applied msatRkly spinet Ww
Owner's Gross labs as reported to ftyside VOW Mae
earl lop to occur of (1) the ` ILsit being
reached or (11) the end of the sesoad rat Vear.j
•s• 88--764
1 _'_ l a ' N i E* 19 THE P(jP% C �VV'AN , C. SE
�. li ias and pthtC owns. Sayside .:11 provide at Owner's
"at at a point selected by BayaiOe rear the Berth utility
facility which will enable Owner to obta:• electrical enemy and
water service for use on the Vessel. the extent possible.
Owner's electrical and water usage shall :e measured by &operate
motors and Owner shall pay for such ene-ty to a public utility
or public authority supplying the sane.
(In addition to the coot of the electrical ftoility, if Owner
elect$ to be" sanitary, sewer pwap out facilities available at
the Berth. Owner ahall notify bayside within thirty (30) deys of
the date of the Agreement and) Owner shall pay Sayside its
proportionate share of the cost of (insta.11&tion of and) use or
a sewage pumping station and lines (*011ectivsly "Sewage
facility") serving the Vessel and possi::y serving one or more
other vessels to be located in Biscayne Ray near the Berth and
retail uses located on the pier !.orth of Reflection$
Restaurant. Owner's proportionate share shall be based upon a
daily usage factor and capacity de:erained by Bayside'$
consulting engineer. Owner shall pay beside its proportionsto
share within thrity (30) days of receipt of written notice
thereof.
With regard to sanitary sewer service a-.3 water and slectrical
service (if separate metering is not available for water or
electricity) Owner shall pay to Tayside :n each calendar month,
Its proportionate share of the *oat o' usage which shall be
bases upon, a daily usage rector dt%omined by Bayside's
consulting engineer for sanitary sewer. water and electricity
based upon the Vessel's mechanical and systesu capacity,
sultiplied by the number of days durini the calendar =nth in
which the Vessel is moored at the Bertr.. Sayside nay elect to
supply electricity to the Berth and if a: Owner agrees to pay to
Tayside, Owner's electrical usage at $;pliable rates not to
exceed public utility rates for the taus service, if applioeble
within ter, (20) days of Tayside mai:ing Owner a statement
therefore. Sayside, at its sole discretion, shall have the
right, rros time to time, to alter tee method or souroo of
supply of electricity and Owner'agrsss tt execute and deliver to
Tayside such documentation u my be required to effeot s"h
alterations. Owner shall be responaib:e for trash disposal in
accordance with the procedures established by the City for the
vessels in the Marina, in accordance with the Master lerait or,
absent such procedures, in acoordance with procedures
established by Bayside and Owner shal: pay Tayside the costs
related thereto.
Tayside shall not be liable for any damage resulting from or
arising out of discontinuance of utility services unless am"
discontinuance is due to gross negligen:e or willful alsoonduot
of Sayside.
S8-764
A"
p,eq
In the event there atoll be s discontinuance of utilities
services serving the Depth for a period of at least thirty (30)
consecutive days, Owner shall have a right to eancel this
Agreament by giving Bayside written notice thereof with ten (10)
days of the end or the thirty (30) day period in which event
this Agreement shall autesatioally terminate as of the date the
notice is deemed deliveped pursuant to section 22.12 and Owner
shall as of such date vacate the Berth.
S. Mours of Operation. Owner shall cause its business to be
eonducted and operated in good faith and in such manner as shall
assure the transaction of a maximw► volume of business in and at
the Promises which shall require the operation of the Vessel out
of the berth for at least (,_ ) oonsecutive months
between and thi7o�owing - Unless
other hours are approved by bayside in writing in ite sole
discretion, while Owner's Vessel is at the Berth, Owner shall
cause the business at the Promises to be open for business from:
9:30 a.m. until 11:30 p.m. Monday through Thursday and on
Sunday, and froe a.m. until a.m. the following
morning on Friday and Saturday, wi— thh not less than two
sightseeing cruises on Monday through Thursday and on Sunday and
three sightseeing trips on Friday and Saturday subject to the
isswance of a hurricane warning pursuant to Section 9 or Owner
vacating of the Berth pursuant to Section W If Owner shall
fail to ause its business to be operated during the hours and
In the manner required in the preceding sentence, or as other-
wise required by Dayside, in additior to any other rowdy
available to bays2ds, Owner shall pay to Saysids a sums as an
additions: Dockage Fee, equal to a Hundred and 00/100 Dollars
($100.00) for each hour during which Owner shall fail to so
operate in such manner. should Owner desire to operate the
Vessel at the Berth earlier than a.m. or later
than p.m. Sunday through Thursday� or a.m. an
following morning on Friday or Saturday nights, shall
notify Bayside's manager at the management office in the Dayside
Marketplace at least two days in advance; provided, however, in
no event way tours be conducted between i a.m. and 7:30 a.m.
Owner shall notify Sayside's manager at the Baysids ftrketplaeq
management office not less than thirty (30) days in advanoo, of
the date the Vessel will be departing the Berth or returning to
the Berth for an absence of more than three (3) consecutive
days, and during such absences of the Vessel from the Berth,
Dayside or the City "I have the right to moor other vessels
at the Berth at no expense to Owner. Daysids agrees to exert
diligent good faith efforts to require any other owner of a
weasel using the Berth in the Owner's absence to maintain the
Berth in the saw oondition as the berth was when Owner left the
Berth.
07-
• • s
JUL-la-AP TWU 11Ls23 r=
'fir;
?Lt 1= 'N ie : 19 T►E 0W CCU:+, P.W
Owner and layside 0411 together eond6:t Inspections of the
Nrth froW time to time to evaluate the e.:ndition of the Berth.
6. Construction and Maintenance of the Bert'.
(a) Subject to Belays due to labor strikes, Acts of Cod,
governmental regulations or oontro.s, or other oonditions
beyond layside's control, layside shall as promptly as
possible and at Owner's cost, design and construct or cause
to be designed and constructed, the electric facility
described in Section Y jamb, if Owner elects pursuant to
Section •, Ides oemSe pumping station stubbed out to the
legation shorn therefor on lshibit 21 at or near the
berth. Upon receipt of monthly 1-voices therefor Owner
Mall reloburse Tayside for such costs.
(b) Owner acknowledges that the mairtenance of the Berth
Insluding, without limitation, pylons, cleats and tendering
systems, the electric facility, the sewer facilities to the
point of connection at the pumping station and the ticket
booth, shall be the responsibility solely of the Owner and
not of Sayside. Owner may not make any alterations to the
Berth, the electrical facility, the sewer facilities or the
ticket booth without Tayside's prior written approval and
the prior written approval of the City if required pursuant
to the Master Permit.
(c) No work performed by Owner, whether 1n the nature of
erection, construction, alterationor repair, shall be
deemed to be for the imediate use and benefit of Tayside
so that no mechanic's or other lien shall be allowed
against the estate of Sayside or tee City by reason of any
oonsent given by bayside or the City to Owner to wake
improvements. Owner shall p:aos such contractual
Provisions as Bayside arty request in all oontraets and
subcontracts for Owner's isprovesort assuring Tayside that
no mreohanies' lien$ will be asserted against Dayside's
interest in the Premises or the property of which the
!remises are a part. Owner shall pay promptly all persons
furnishing labor or materials with respect to any work
performed by Owner or its contractors on or about the
Praises. If any miechanica' or other liens shall at any
time be filed against the Promises or the property of which
the Premiaes are a part by reason of work, labor, services
or materials performed or furnished,, or alleged to have
been performed or furnished, to Omar or to anyone holding
the Premises through or under Owner, Owner shall forthwith
cause the sue to be discharged of record or bonded to the
satisfaction of Dayaids. If Owner shall fail to esuse such
lien forthwith to be so discharged or bonded after being
notified of the filing thereof, then, in addition to any
other right or remedy of Dayside, Baysida may bond or
discharge the "No by paying the amount claimed to be due,
and the amount so paid by Sayside, including reasonable
-d-
JUL-14-96 THU 16:24
Jl.j. 1j 'pf 1c:F@ T4 CCW.V4,
attorneys' fees incurred by Mysife tither in defending
•lnst such limn or in procuring the bonding or discharge
such lien, together with interest thereon at the Default
Note, shall be Out and payable by 7e-ant to sayslde.
1. Tlaket bSjh Lnj(During the term of this Agrcemsnt,
Owner shall be r*sponcible flay providing a ticket both for Its
mast adjacent be the Myth, the design and location of which
shall be mobjest to Tyrsido,s prior written approval at all
tIwo. ) Amer will not place or s_ffer to be placed or
maintained on the exterior of the Vesse: or the ticket booth at
the promises any sign, advertising matter or any other thing of
any kind, and will not place or waintai- any decoration, letter
or advertising matter on the glass of ary window or door of the
Vessel or (the ticket booth) at the treelses unless the sans is
approved in advance by Tayside in its sole discretion. Amer
will, at its sole cost and aspenae, as:r.tain (ti+e ticket both
and) all signs, decoration, lettering, advertising matter or
Other thing as may be permitted hereunder in good condition and
repair at all times.
e.ILit1s. Owner shall pay to the appropriate agency any asks,
excise and other taxes levied, imposed or assessed by the State
of Florida or any political subdivisiot thereof or other taxing
authority upon the Dockage Fee or ary other Rental payable
hereunder. Further, Owner agrees to pay to Myside, with each
payment of the Dockage Fee, the Florida sales tax (or similar
charges) on all such amounts, if any. Owner shall also pay,
prior to the tine the same shall becoae delinquent or payable
with penalty, (i) all taxes imposed on the Vessel and the
Owner's inventory, furniture, trade fixtures, apparatus,
equipment, installed by Owner or by Tayside on behalf of Owner,
and any other property of Owner and (1) all fees and *barges
related to the licensing of the Vessel for operation, liquor
licenses, and other permits necessary for the Vessel to operate
for its intended use.
S.Condition of V$8901. The Owner eavtna.Oits and agrees with the
ystde w follwso. (i) Oiaer shall resow, or eau" to be
removed, the Vessel from the Teeth, tte Marina and all other
City property immediately upon the issuance of a hurricane
warning for the area by the National Hurricane Center (Owner
acknowledges and agrees that it shall be its own responsibility
to be ware of such warning and that neither Tayside nor the
City has any duty or obligation to notify It of amme)i (11) if
requestod by Myside or the docimster of the Narina (the
'DoWmater"), Owner will demonstrate tte mobility of the Vessel
by aw wvoring it under power in the presence of Tayside, the
Doolmrater or either party's representative; and (ifs) Owner
shall not permit the Vessel to be used at any time contrary to
the peroitted Use.
-,- sAJ
JUL-14-66 THU 16:24y ��
J.L 1 a ' 86 16: Z 1 TI-C V%0 E COMN44'
10. SISDA of am. The owner eovenarts and agrees to oW*ly
with 0 all otatc federal and local la►s pertaining to "rings
and beating, (11) the raring rules and regulations set forth on
gahlbit hC" attached hereto and made a part hereof, as such
rules and regulations may be modified, amended or supplemented
free tine to time by the City (the *Rule$ and Reguiatiens"), and
(111) such other rules and regulations woloh say be promulgated
from time to time by the City for the Marina. Vithout limiting
the foregoing, Owner Shall not kr.a.+ingly, willfully or
negligently do, suffer or allow, either individually or in
oon)unetion with other persons or as a ?art of an organization
of persons:
(a) Any unlawful acts;
(b) Any sets which would have the offe:t, in the bole Judgment
of the City or Tayside, of disturbing the peso@,
disturbing, inconveniencing or subjecting to pAysio&l
jeopardy the Marina premises, ocher persons or other
vessels docked or moored at the %Lrina or use by Tayside
and its tenants of the Tayside Marketplace; or
(c) Any get which would impede, disru;t or injure the orderly
operation of the Marina, Tayside Marketplace or any portion
of it.
11. m n i n. This Agreement shall terminate at the election of
yside or Owner in the event that the North or the Marina
becomes unusable or unserviceable for a period of thirty (30)
consecutive days, which election must ce made by giving notice
to the other party within ten (10) days of the thirty (30) gay
period. This Agreement shall automatically terminate upon
tormination of the Master Permit or upor. tormination pursuant to
Section ig. In the event any part of this Agreement, or the
Muter Permit, is determined to be inva:id or unenforosablt by a
court of competent jurisdiction whtre:y the Vessel ovold be
caused to be removed from the North or Marina, Owner &gross not
to sue Tayside or the City for any expenses, oosts, losses, or
other damages, directly or indirectly, which may be suffered by
the Owner in any maeuler whatsoever, as a result of bush
determination or removal.
W. Risk of LM, Owner acknowledges and agrees that this AgresmSnt
is a permit for the use of berthing apace only. furthermore,
Owner acknowledges and agrees that the North is to be used at
the sole risk of Amer and that`nsither Tayside nor the City
shall be liable for the care, protection or seourity of the
Vessel, its appurtananoss, or oontents, or for my less or
damage of any kind or nature to the Vessel, its &ppurt4rdUMS,
or contents, due to fire, theft, vandalism, collision, epuipment
failure, windstorm, explosion, hurricane, rains or other
calamities, or any other cause.
-io-
l= 'ERE iE::i TEE RJigE C"04,
(a) Owner acknewlodges and agrees that neither the City far
Nayside makes any representation or warranty or any kind as
to the condition of the piers, walks, mooring gear or
electrical, water or sewer services located in the Marina
or at or adjacent to the North or the depth of the water at
the North and ether waterways and that the City and its
Marina personnel have no duty whatsoever to Owner,
Including, without limitation, no duty to provide Owner
with maintenance and security. Tne Owner, for itself,
licensees, invitees, guests, employsee, agents, heirs,
assigns and subrogees, hereby releases and agrees to
Indemnify and hold harmless kyaido and the City and all of
their respective employees, contractors and agents from and
against any and all liability for personal injury, lose of
life and property damage at or near the North, on the
Vessel, or at or near Nayside Marketplace arising from the
use of the permit granted hereby. This release and
Indemnification shall include, but not be limited to (1) in
connection with the Vessel, its motor and accessories while
It is in the North or while it is being moved, hauled or
launched or while in the water moored at or near the
marina's dock or bulkheads; (2) loss or damage to the
Vessel or other craft, motors and accessories or contents
thereof due to fire, theft, vandalian, collision, marine
equipment failure, windstorm, rain, or hurricane or other
casualty loss; and (3) any cause of action arising out of
the use of any adjacent pier or docking facilities or
walkways giving access to such piers, walks, gangways and
rasp. The indemnification provided herein shall include,
but not be limited to all costs, expenses and reasonable
attorneys' fees, including but not limited to, reasonable
appellate attorneys' fees, inourred by Naysids or the
My. The Owner shall defend Tayside and the City against
any such claims arising as above -stated except for the
negligent sots or omissions of Tayside or the City, its
agents, employees or contractors and shall satisfy, pay and
discharge any and all judgments and fines that may be
recovered against layside or the City in any such action or
actions prior to the tine that such becomes a lion against
Taysids or sajeots Nayside or the City to levy of
executions; provided, however, that Nayaide and the City
shall respectively give the Owner written notice of any
such claim or demand within suo tints as will allow the
Owner to appear and defend or pay and discharge sweh
alai10. Owner aoknowlsdges that the City and Tayside each
cry, at its option, actively defend against such chits and
by doing so shall not wive or discharge Owner framt its
Obligations to defend and indemnify act forth heroin.
.».
JU1-14-8e
t►) Meither bayside nor Owner shall be liable
a other or
to any insurance company (by way of subr of
otherwise) insuring the other party for any loss or damage
to any vessel, building, structure or other tangible
property, or any resulting loss of income, or losses ender
worktr's compensation laws and benefits, even though such
less or damage might have been occasioned by the negligence
of such party, its agents or employees, if, and to the
extent, that any such lose or 0mge is covered by
Insurance btnefitting the party suffering such loss or
damage or was repaired to be covered by insurance pursuant
to Section 14.
14. Inaurance.
(a) It to expressly agreed by the Owner that neither bayside nor the
City is in any way an insurer of the Owner's property, family,
invitees, licensees, employees, agents or guests. The Owner
hereby warrants and agrees and covenants to Maintain during the
term of this Agreement, liability and casualty insurance,
providing such coverage covering owner's obligations under
paragraph 12 and shore and gang plank exposure in the following
amounts:
(1) All Risk Hull coverage written, on a market value basis.
(ii) Protection and Indemnity coverage with limits of not less
than $5,000,000 for each occurrence.
(III) united States Longshoreman. and Marborworkers workman's
compensation coverage or similar coverage with limits of
not less than $110000000.
(iv) Jones Act coverage with limits of not less than 0,000,000.
(v) Comprehensive general liability, including port risk,
oontractual liability coverage, broad form property damage,
endorsement and contractor's protective liability coverage,
to afford protection, with limits of each occurrenos, of
not less than $3,000,000 with respect to personal injury or
death and $5,0009000 with respect to property damage.
The above amounts of coverage shall be adjusted peri-
odlally every five (5) years by the percentage change in
the Consumer Price Index (all urban oonaumters) N published
by the bureau of Labor Statistics of the nepartmsnt of
Labor (the "CPI") for such 5 year period, or in the event
the CPI has changed or is no longer published, such other
appropriate measure of sbangea in the relative purohaaing
power of the dollar agreed upon by the parties, with the
Month and year that this Agreement is executed being the
base year.
alto
JUL-14-99 THU 16:26
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?lx ii 'Sc. iS:ZP THE ROUSE COtIN 4+ P.SS
(►) The eampony or esmpanits writing any insurance which Owner is
required to carry and maintain or ease to be carried or
maintained pursuant to this Agreement, as well as the forts of
such insurance, shalt at all times be subject to Tayside's
approval. Such policies of insurance sha:l provide that Sayside
and the City shall be notified at least thirty (30) days prior
to cancellation or ohange and all liability coverage shall
Include boyside and the City as an additicnal insurods and shall
be endorsed to be primary, non•oontributory and not in *soots
with regard to any other insurance maintained by Tayside or the
City. The Owner shall furnish Tayside and the City (at the
address specified for the City under t►e Matter Permit) with
certificates of the foregoing insurance no later than thirty
(10) days prior to the date the Vessel is to be initially maoored
at the berth. Tayside shall be entitled at anytime without
notice to Amer to not permit Owner to use the promises at any
time that the required policies of insurance have lapsed or the
required evidence of the required insurance has not been
delivered to Sayside as herein provided.
iS. Assignmint andm ottin . This Agreement Pay not be assign**
or sublet by the owner without Sayside's prior express written
consent, which way be withheld at its sole and absolute
discretion. This Agreement is assignable by Tayside to any
parent, affiliate or subsidiary of Rouse -Miami, Inc. or to the
City of Miami or to Tayside's mortgagee a! any financing secured
by all or part of the Tayside Marketplace. Owner shall accept
the performance of Tayside's mortgages of any obligations of
bayside.
W Closing of the Marina. Owner acknowledges that its rights under
this Agreement are subject to the City closing the Marina and
the Berth pursuant to the Mismarina Agreement dated October 249
1"S, as amended, to all occupants or licensees for periods not
to *xoe*d sevonty-two (72) consecutive hours (and in no event
for more than seven (7) days for a single calendar year) and
Owner agrees it shall Immediately (but in no event longer than
twelve (12) hours) remove the Vessel trams the berth upon
notification from■ the City that it will be so closing the
Marina, and shall at its own cost and expense, dock the Vessel
at other facilities until the City reopens the Narins. It the
Owner shall fail to remove the Vessel within the aforodesoribea
timme period, the City and/or Tayside ahall have the right to
board the Vessel and place it in tow, or move it under its own
power, to a dockage or mooring, within or outside of the Marina,
ohosen by Tayside, and the Owner does hereby irrevocably
appoints the City and bayside, their mangers, agents, servants
and/or =ployces as its attorney -in -loot for the purpose of such
removal. In such event, the Owner does hereby release and
relieve the City and/or Tayside, its manager, agents, servants
WO employees for any and all loss or damage occurring during
a l l-
JUL-14-66 THU 16:27
',
11IL > > ' K 1 E : 2: To{ (CW1PW+)
such r*mevel, unless directly caused by their gross negligence
or willful misconduct. In addition, the Owner shall be
responsible to pay all costs incurred b) Bayaidt, its managers,
agents, servants and ansployees in to removing the Vessel,
including, but not liaited to, wages, insurance premiums,
dockage and storage charges and towing costs, all of which shall
be a lien upon and against the Vessel.
It is intended and understood by both parties to this Agreement
that this Agreement is also subject to a certain 3upplawal tal
Agreement (which, as heretofore or !%reafter amended, is
referred to herein as the "Race Event Agreement") between the
City, Miami Motoreports, Inc. and Bays,.de dated January 14.
105, as amended, by which Baysidt has agreed, under certain
circumstances, to restrict access to t!:e Bayside Marketplace
during the staging of the Race tvent (as defined in the Rao*
Event Agreement) to those members of the general public holding
tickets to the Rao* Event. Owner agrees to cooperate, and to
cause its employees and suppliers to cooperate, with Bayside
during the Raoe Event.
17. Sanitation tv,gg,. The Owner covenants that the Vessel
contains a U. Coast Guard approved sanitation device, which
oomplies with the current state of the art requirements of the
Coast Guard governing the installation aid use of such devices
upon that particular type of vessel. Tte Owner covenants that
this sanitation device shall be used a: all times while the
Vests; is at the Barth and shall be pro;erly maintained by the
Owner.
is. Event of Dertult. In the event the Owner violates or fails to
perform any o the covenants, terms, ooiditions, agreements or
obligations of Owner in this Agreement or under the Rules and
Regulations, such event or failure to perform shall constitute a
defailt by Owner under the terns hereof (hereinafter referred to
as "Event of Default"). Any one or more of the following events
shall constitute an "Event of Default":
(1) the ale of Owner's interest in the Vessel under
attac►ssento eseoution or siailar legal process or, if Owner
Is adjudicated a bankrupt or insolvent and Such
adjudication is not vacated within thirty (30) days.
(11) the filing of a voluntary or involuntary petition proposing
the adjudication of Owner or any guarantor of Owner's
obligations hereunder as a bankrupt or insolvent, or the
reorganization of Owner or any such guarantor, or an
arrangement by Owner or any such guarantor with its
creditors, whether pursuant to the roderal tankruptoy Act
or any sitilar federal or state proceedings, unless such
petition is filed by a party other than Owner or any such
guarantor and Is withdrawn or dismissed within thirty (30)
-14-
JUL
JUX ij 'aE 16:24 T4 Sr C"hvq, P.6'
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days otter the date of tiling; provided$ however, in the
tvent of a atault do solely to the threatened bankruptcy
at s guarantor as provided for in this subsection, Owner
shall have a right, within this thirty (30) day grace
period to seek Tayside's approval to a substitute guarantor
which approval shall be at Tayside's sole and absolute
discretion.
(111) The &Omission in writing by Owner or any such guarantor of
its inability to pay its debts when out.
(iv) The appointment of a receiver or trustee for the business
or property of Owner or any such guarantor, unless such
appointment shall be vacated within thirty (30) do • Of its
entry; provided, however, in the Event of a Default due
solely to the appointment of a receiver, act or omission of
a guarantor as provided for in this subsection, Owner shall
have a right, within this thirty (30) day graoo period to
seek Tayside's approval to a substitute guarantor whieh
approval shall be at Tayside's sole and absolute discre-
tion.
(v) The making by Owner or any such guarantor of an assignment
for the benefit of its creditors, or it in any other manner
Owner's interest in this Agreement shall pass to another by
operation of law.
(VI) The failure of Owner to pay any sus of money due under this
Agreement to Tayside within ten (10) days after the sue is
due hereander.
(vii) Default by Owner in the performance or observance of any
covenant or agreement of this Agreement or the Nestor
Permit (other than a default involving the payment of
money), which default is not cured within ten (10) days
after the giving of notice thereof by •ayside, unless such
default is of such nature that it cannot be cured within
sash ten (10) day period$ in which ease no tvent of Default
shall occur so long as Owner shall commence the curing of
the default within such ton (10) day period and shall.
thereafter diligently prosecute the curing of asno;
provided, however, it Owner shall default in the per-
tormnoe of any such oovenant or agreement of this
Agreement or the Motor Permit three (3) or more tills in
any twelve (12) month period, then notwithstanding that
such defaults have each been cured by Owner, asps further
similar default shall be doomed an tvent of Default without
the ability for sue.
(viii) The vacating or abandonment of the Vessel by Owner at any
time during the Term of this Agreement.
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88'-W9t
1= ' QE 7 E c TEE p _.USE i
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19. gOLUi1. In the tvent of Default by Owner, in addition to all
ether rights and rowdies available to Tayside under applicable
law, hyside shall have the right to tawclistely terminate this
Agreement by serving a notice of terainat:on upon the Owner. In
the event Owner fails to vacate the Bert-. within three (3) days
after receipt of such notice of termination, then in addition to
all other rights and remedies available to hyside or the City,
hyside and/or the City Well have the right to board the vessel
and place it in tow or save it under its own power and remove
the Vessel from its dockage or mooring space within the Marina
or remove it from the Marina to a dockaie or woring as may be
chosen at the discretion of hyside or the City, and the Owner
does hereby irrevocably appoint ssysidl and the City, Moir
managers, agents, servants and/or esployeos As its attorney -in -
fact for the purpose of acting in its place and stead for
purposes of such removal. In such event. the Owner does hereby
release and relieve sayside, the City, their managers, agents,
servants and employees for lose or dam&Se occurring during such
removal, unless directly caused by Tays:de or the City's gross
neg:igenco or willful misconduct. In addition, Owner &hall be
responsible to pay all Dolts incurred by hyside and/or the
City, their managers, agents, servants and smploytes in removing
the vessel including but not liaite! to wages, insurance
pree li mss, dockage and storage charges and towing costs, all of
which shall be a lien upon and against the Vessel. The Owner
agrees to pay all costs and exponses including reasonable
attorney's fees incurred by Tayside ir the collection of any
unpaid sins due under this Agreement, or by reason of Owner's
dofaglt under this Agreement or of the Files and Regulations.
Owner and Tayside agree that their obligations under this
Agreement shall survive the torminat:on hereof until such
obligations are fulfilled in their totality. The PWWdiaa
provided in Florida Statutes 328.17 (and any appiioeble
amendments thereto) for the non -judicial sale of a vessel for
non-payment of dockage are specifically included and
Incorporated in this Agreement as an additional remedy available
for Tayside or the City and the Owner agrees to be notified at
the Terth or the address specified for Owner under Section 22.12
In connection with the notice required w%der Fla. Stat. 328.17.
2o. ghlinti of Mrsider Vith Respect IQ Master
In addition to any other obligations which are imposed upon the
Owner under the provisions of this Agreement, the Owner shall
have all of the same obliptiona herounter to Tayside as Tayside
Me to City under the provisions of the Muter Permit, and
Tayside ahall have all of the apse rights hereunder against the
Owner as the City shall have spinet Tayside under the provi-
sions of the Maeter hrait, all so if provisions identioal to
such provisions were set forth at length in this Agreement.
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•
JUL-14-98 THU 16:29 GI '.68
JJ- 1 j 'PE 1 E : 2! ThC PO4M COP1F ,
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Owner Mali further have ail the rights afforded the "Owner"
under the Master Permit and Owner atknorltdges that the City
shall have all the rights against Owner ae it does against
Bayside under the Master Permit. Owns' eovenslita and agrees
that it will not do any Got or fail to do any act which mold
Cause a default by BGysidt under the Master Permit.
■ .. i i IT r
21.1. Baysidt shall not amend or consent to any SM14Mtnt ef$
the olaster Permit in any respect which Yterially and adversely
affects the Owner'a right to use and arjoy the Berth upon the
terms and subject to the conditions which are contained in this
Agreament.
21.2. if the Master Permit terminatta or is materially changed
to adversely effect the Owner without Owner's consent, this
Agreement &hall thereupon automatically terminate simultaneously
with such ttrmination of the Master Perait, and neither party
hereto #hall have any right hereunder against the other party
hereto on account thereof; provided, that nothing in the
foregoing provisions of this sentenot Shall be 11ee11bed in any way
to alter or impair any liability which either party hereto may
have to the other accruing before such termination.
22. General.
22.1. 2ffectiveness. This agr~nt at -all become effadtive or.
and only on its execution and delivery by each party hereto.
22.2. Cmiete Un r in . This agreement re0reaents the
@Wplets understanding between tht parties hereto as to the
subject matter hereof, and supersedes all prior negotiations•
representations, guaranties, warranties, prdaises, &tat =lets or
agreements, either written or oral, between the parties hereto
as to the same.
22.3. AWdinnt. This Agreement may be vended by and only by
an instrument executed and delivered by each party hereto.
22.M. �v�. go party hereto shall be det�ad to have waived
the e�ceroiae of any right which it holds herewbar unless suroh
waiver is made expeasly and to writing (Aldo without 11111tieg
the generality of the foregoing, no delay or emission by any
party hereto in exercising any such right shall N deSMed a
waiver of its tuture exercise). No s4oh waiver simds in any
instance involving the exercise of any suah right shall be
demur a waiver as to any other such instanoe or right.
07"
'Re W eN T4 WON CCW1F*r,
M $ . Amalieable Law.
(a) This Agreement shall be given effect and construed by
application of the law of Florida, and any action or
proceeding arising hereunder &.all be brought in the
averts of Flerids; provided, teat if any mush action
or proceeding arise& under the Constitution, laws or
trestles of the United States of Aftrioa, or if there
is a diversity of eititenahip betwen the parties
thereto, so that it is to be brought in a United
States District Court, it shall be brought in the
United States District Court for the District of
Naryland. Nothing in this Agreement is intended to be
construed as a grant of iloenst or a lease.
(b) Owner, at its sole Cost and S%Ptnse, shall comply, and
shall cause the Vessel to comply with (a) all federal,
state, regional, county, municipal and other
governmental statutes, less, rules, orders,
regulations and ordinances affecting any part of the
Premises, or the use therec!, including, but not
limited to, those which require the making of any
structural, unforeseen, or extraordinary change&,
whether or not any such statutes, laws, rules, orders,
regulations or ordinances which may be hereafter
enacted involve a change of pc:icy on the part of the
governmental body enacting the same, (b) all
requirements of the South Florida Regional Planning
Council set forth in Schedule "E" relating to the
display, storage, sale or use of hazardous materials,
and (c) all rules, orders and regulations of the
National board of Fire Uhderwriters, Saystie's
casualty insurer(s) and other applicable insuranoe
rating organisations or other bodies exercising
similar functions in connectio- with the prevention of
fire or the correction of hazardous oonditions which
apply to the Vessel.
22.6. ?ire of essence. Timis shall be of the essence under this
Agreement.
22.7. ct The beading& of the Sectional subseions,
paragrapTW subparagraphs hereof are provided heroin for and
only for convenience of reference, and shall not be considered
In construing their contents.
22.0. Itzhibits. tach writing or plat referred to herein as
being attached hereto as an exhibit or otherwise N816nated
herein as an exhibit hereto is hereby aase a part hereof.
se--7s0*
tLl fd 'W 1E: F' Toc IPC'C�-Vvw+, PWN P. T1
&e.g. Me Agreseent shall he binding On and shall
inwre to the of the parties hereto and their rts►setivs
heirs, personal representatives, successors and assigns here-
under.
it.iki. leverability. No determinatior. by any court, govern-
mental body or otherwise that any provision Of this Agreement or
any SDVW Knt hereof is invalid or unenforceable in any instance
shall &treat the validity or enforceability of (a) any other
prevision thereof, or (b) such provision in any circumstance not
omtrolled by such determination. Each such provision shall be
nalid and enforceable to the fullest extent allowed by, and
shall bt oonstrued wherever possible as being consistent with,
applicable law.
22.11, r n Nothing in the
provisions of th • Agreement shall beees►td in any way to
create between the parties hereto any relationship of
partnership, joint venture or association, and the parties
hereto hereby disclaim the existence of any such relationship.
22.12. tending of Notices. Any notice, request, demand,
approval or consent given or required to be given under this
Agreement shall be in writing and shall be deemed to have been
given on the second (2nd) day following the day or, which the
same shall have been riled by United states registered or
certified wail, return receipt requested, with all postage
charges prepaid, addressed, if intended for Tayside, to layside,
Attention: General Counsel, eio The !louse Company luilding,
Columbia, Maryland 21044, with a Dopy to Waldo's management
office in the Tayside Marketplace, or if intended for Owner, to
Owner at the Owner notice address set forth in the introductory
paragraph, except that payment of the Dockage Fee and sales
reports shall be delivered to Tayeide's Management office in the
Taysids Marketplace during Dorsal business hours.
Notwithstanding the foregoing, it an gvent of Default pursuant
to Station 11 shall have occurred, any such notios from Tayside
shall be deemed to have been given on the date actually hand
Nlivared to Owner it hand Delivered provided that Owner's
receipt thereof to acknowledged in writing.
22.13. 51tawel brtirloattal. At any We and free time to
time within ten days after Tayside shall request the same,
Owner will ssocuts, acknowledge and deliver to Tayside and to
Tayside's mortgages, or other party as my be designated by
layside, a oertifioato in a torsi requested by Tayside with
respsot to the matters set forth in an! edule "D" and such other
natters relating to this Agreement or the status of performance
of obligations of the parties berounder am slay be reasonably
requested by Tayside. It Owner tails to provide such
sertifioate within ten (10) days after request by Tayside
therefor, Owner shall be deemed to have approved the oontonts of
any such certificate submitted to Owner by Tayside and Tayside
is hereby authorised to so certify.
-it- W 64k
J.L i j ' F: 1 c r c' T4 O�VK CtVqbQ 4
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.,
any right or remedy ewteowent O+ a breach theroot, and not
aeaptanoo of lull er partial oaymt of meneye due during the
sentimsnee of any eweb breach, shall constitute a waiver by
ayside of any ouch ►reach, agreavient, covenant or condition.
at. is. Owner covenants and warrants
that, by onecution o 4regment,
this neither Owner nor any
shareholder, officer or partner of Owner violates, nor during
the Tern of this Agreement shell Owner or any shareholder,
officer or partner of Owner violate, the conflict of interest
provisions of the City of Missi Code, the Dade County Code and
the United State& Department of Mousing and Urban Development
Grant Agremnt, all as set forth in Schedule "P", and Chapter
III, tart III of the Florida Statutes, as the am may be
amended from time to time, or any other applicable law.
Be.16Nor. DLgerjujUtion. Owner agrees that it shall not
discriminate against any person on account of race, color, son,
relision, speed, ancestry or national origin or handicap in use
of the Promises, nor accessibility to the Vessel while using the
Depth.
IN WITNESS WHEREOF, each party hereto has executed and ensealed this
Agretuent or caused it to be executed and onsealed on its behalf by its duly
authorised representatives, the day and year first above written.
WITNESS/ATTtST:
-lO-
RAYSIDE CEb'TtR LIMITED PARTURSH1P
By: Rouse-Mlami, Inc.
General Partner
(Own)
J� a J • •f w tat toe Rt%m COM►+,
to motors With la hibit • to Of 11ttt![ Ntait
JUL-14+58 THU t ► i 52
CITY OF 04IA141. IL.0*10A
INTER-OIFICt MCMOAANDIjM
11. Honorable Mayor and
Members of City Ommission
i
"000. Cesar H. Odic
City Manager
Recommended
S E P - 1 1988 01S.9
""""' Resolution Authorising a
Xevoeable Permit for Dayside
Charter Cruise vessel
AV"CM40
It is respectfully recamondrd that the City Commission adopt the
attached Resolution authorizing the City Manager to issue a
Revocable permit to wayside Center Limited partnership for the
use of two berths on the Biscayne fay seawall for the purpose of
mooring commercial vessels which rill offer dinner, excursion and
showboat charter cruises.
geleground
This agenda item was prepared jointly by the Law Department and
the Department of Parks. Recreation and Public Taoilities, with
the assistance of City Manager staff attached to the Sayside
Specialty Canter. The proposed legislation would authorize the
City Manager to issue the enclosed Revocable Permit thereby
allowing the Bayslde Specialty Canter to use specified ateas for
two (2) berths along the seawall adjacent to the property they
presently lease. wayside, in turn, would enter into mooring and
dockage permit agreements with commercial vessel owners which
will operate lynch, dinner, excursion and showboat charter
cruises frost the site. Bayside is completing necessary
arrangements for execution of such agresssnte with Harbor Cruises
Limited (owner of Day Lady) and Mikaione Inc. (owner of the
Galleon) subjetot to the City's approval of the attached.
Under the terms of the proposed permit with Sayside, the City
will receive Set of all dockage lees collected by that entity
from vessel owners. The City's share of dockage fees are
designated !or the maintenance and operation of NiA"CiDa.
Additionally, Tayside's portion of this revenue is to be included
in the Operating Income of the Center, with the required 4t..
proportionate payment to be spade to the City -in accordance With,
the provisions of the Retail Lease agreement dated Oat-004 -W l
loss. The draft mooring and dockage a9teemeot betwr"& is `-
and Harbor Craises Ltd., owner of Bay Lady, presently wile �' s
Honorable Mayor and
Members of City Commission
Page 2
dockage fee equal to 2• of gross sales. The dockage fee for the
second berth is subject to neotiations, and may be higher or
lower than the 2i rats for the berth Of Say Lady. The term of
the City• s permit with Tayside is one year, with options tot -
nineteen (19) one-year ext-onsion&.
Other provisions of the permit require Bayside to bear the costs
of maintenance for the berths, improvements to the area and any
required dredging of the channels and berths. Tayside will
provide its standard liability insurance for the berths and
vessel owners will be required to carry additional liability and
casualty coverage. •ubsequently, owners would also be
responsible for applicable taxes, garbage collection, and
utilities. While eayside will provide and construct facilities
for water, electric and sanitary sewer services, such costs will
be borne bThe
the vessel owners, who may than deduct these *oats
only from !buss Company's share of dockage fees for a period
of four (4) years. (9e• attached August 31, 1990 letter from The
!rouse Company.)
to addition to the benefit of a new source of revenue to the
City, other perceived advantages of the proposed boat operations
include the creation of new employment opportunities and the
generation of repeat, resident traffic to the Says ide/Say front
Park area, which should provide additional support to the
project's r.erehants. Lastly, residents, citiscns and visitors to
Miami will benefit from yet another opportunity to enjoy water -
based leisure activities and the vibrant natural resources of
•iseayne say.
i
West Indian American Day Carnival Assoc. 74
of Greater Miami.
August 249 1988
Mr. Lesar H. Udi c
Litv Manger
City o+ Miami
35Oo Pan American Dr1Ve
Miami; Florida 33133
Dear Mr. Od i o:
The o++icers and members of the West lndnCn,Ah�rebynDAY requout
Carnival Association o+ Grealicedionithe Agenda at the next
that the +ollov+inc item be P ,'oval.
meeting of the Citv Commission +or app
the t
The Meat Indian Aaiericaval- fo athevnexts+oiveayears,+ Greater
Miami, Inc. seeks appro Miami Carnival in the City n+
to present West Indian American
t
thereby requesting streeforeclosure therewith1hethe
Miami• Weekend ee adinq Columbus'Day.
festival is held the wee 7th and Ath, 1999. October ®th
dates requested are October 1991, October 10th and
199t), October 9th and loth,
and 9th, 1993.
11th, 1992t October 11th and 12th, y
Thanking you in advance +or Your kind consideration -
Very truly yours+
r
r
Aldwyn C. Thomas
fact
cc: Hon. Mayor. Xavier Suarez
640n, Mayor Rosario Kennedy
Hon, Commi ssi oner Victor De Yurre
Han 0 Cowmi ss i oner J . 1i� �: J r .
Non. Gommi ssioner Miller RA
City Clerk
z
k l'
;a
1
}ter
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