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HomeMy WebLinkAboutExhibit13DEFINITION OF MARINA: MARINA APPROVAL PROCEDURES (a) Lessee shall use its "best efforts" (as such term is defined below) to obtain all permits and approvals from Governmental Authorities (collectively, the "Mega -Yacht Marina Permits") which are required to construct and operate a marina substantially similar in size and capacity as the_ marina depicted in the Island Gardens Proposal (a "Mega -Yacht Marina"). (b) In the event Lessee is able to obtain all of the Mega -Yacht Marina Permits, then the term "Marina" as used in this Lease shall mean and refer to such Mega - Yacht Marina, and Lessee shall develop and operate such Mega -Yacht Marina subject to and in accordance with the terms and conditions of this Lease. (c) For purposes hereof, the term "best efforts" shall mean that Lessee shall take all of the following actions: (i) Lessee shall act in good faith, expend commercially reasonable amounts of funds, and use all due diligence (including retaining consultants, professionals and experts and taking their advice) in pursuing all necessary Mega - Yacht Marina Permits (and specifically in taking all of the actions described in clauses (ii) through (v) below). (ii) Lessee shall diligently develop such detailed plans and specifications, drawings, schematics, sketches and other documentation with respect to a Mega -Yacht Marina (as defined above) as may be necessary or appropriate in connection with pursuing the Mega -Yacht Marina Permits (collectively, the "Mega -Yacht Marina Plans"). (iii) Lessee shall submit the Mega -Yacht Marina Plans to the Chief Executive Officer for his or her approval in accordance with the Chief Executive Officer Approval Procedures. (iv) After approval of the Mega -Yacht Marina Plans by the Chief Executive Officer, with whatever modifications are agreed upon, all subject to and in accordance with the Chief Executive Officer Approval Procedures, Lessee shall submit the Mega -Yacht Marina Plans to all Governmental Authorities necessary to obtain the Mega -Yacht Permits (it being understood that the applicable Governmental Authorities include, but are not necessarily limited to, the State of Florida Department of Environmental Protection., the Army Corps of Engineers (the "Corps"), the South Florida Water Management District("SFWMD") and the Miami -Dade County Department of Environmental Resources Management ("DERM"), and respond to and accommodate, in a commercially reasonable manner, any reasonable requests by such Governmental Authorities for modifications to the Mega -Yacht Marina Plans. The Chief Executive Officer shall be informed, in writing, of such modifications by Lessee. The Chief Executive Officer shall have ten (10) Business Days from the date of receipt of such notice to review the modifications and advise Lessee in writing that the modifications are disapproved. If notice of disapproval is not delivered within the ten (10) Business Day period, Lessee shall give a written reminder notice to the Chief Executive Officer. If notice of disapproval is not delivered within five (5) Business Days after such reminder notice is given, the modifications shall be deemed approved. The notice to review and the reminder notice shall each contain legends at the top of the first page, in a typeface larger than that used elsewhere in the request, identifying the applicable required response time. (v) If Lessee is able to obtain consensus among the staff of the applicable Governmental Authorities for the Mega -Yacht Marina Plans, Lessee shall (a) submit the Mega -Yacht Marina Plans (as samemay be modified as described above) and an application for a Class I Permit for the Mega -Yacht Marina (the "Class I Permit Application") to the Miami -Dade County Board of County Commissioners (the "Board") for final approval for the construction and operation of the Mega -Yacht Marina substantially in accordance with such Mega - Yacht Marina Plans, and have its representatives attend the hearing before the Board concerning same and attempt to persuade the Board to approve same; and (b) submit to the other applicable Governmental Authorities, including the SFWMD and the Corps, the Mega -Yacht Marina Plans and the appropriate application(s) required for the issuance of the applicable Mega -Yacht Marina. permits and Lessee shall thereafter follow up with such application(s) including, but not limited to, appearing before the SFWMD Governing Board, until such Mega -Yacht Marina Pennit(s) are issued by such Governmental Authorities. (d) Lessee shall not be required to use such best efforts for more than twenty- four (24) months after the Possession Date or such Iesser period as it takes to complete the steps described in subparagraph (c) above(e) Lessee shall provide Lessor with at least seven (7) days' prior written notice of any meeting with the staff of applicable Governrnental Authorities. Lessor, shall have the right to have a representative present (by telephone or in person) at each such meeting. In addition, Lessee shall provide Lessor with copies of any written correspondences between Lessee and such Governmental Authorities in connection with the "best efforts" steps described in subparagraph (c) above. (f) Lessee hereby agrees to have monthly meetings with Lessor's designated representatives to discuss the status of Lessee's "best efforts", and to keep Lessor regularly apprised through written updates as to what "best efforts" have been and are being taken by Lessee in order to satisfy its obligations in subparagraph (c) above and the status thereof. If, after any such monthly meeting or after Lessor receives any such written update, Lessor believes, reasonably and in good faith, that Lessee is not using its best efforts as described in subparagraph (c) above, Lessor shall, within seven (7) Business Days after any such meeting or receiving any such written update, give written notice to Lessee stating with particularity Lessor's belief and the specific basis for such belief. If Lessor fails to give such written notice within such seven (7) Business Day period, the actions by Lessee which are described in such meeting or written update shall be deemed to constitute best efforts as described in subparagraph (c) above up to the last step taken by Lessee as described in such meeting or written update, and Lessor shall not be entitled to submit to arbitration the question of whether such actions by Lessee constitute best efforts. (g) Notwithstanding the foregoing, Lessee shall not be required to accept any unreasonable conditions for approval which would compromise the feasibility of the proposed Mega -Yacht Marina or place unreasonable financial or economic burdens on Lessee (either in tenns of increased costs or reduced income) or unreasonable covenants, conditions and/or restrictions with respect to the development and operation of the proposed Mega -Yacht Marina. (h) In the event Lessee is unable, after using such best efforts, to obtain all of the Mega -Yacht Marina Permits, then Lessee shall provide written notice thereof to 'Lessor. If Lessor agrees, reasonably and in good faith, that Lessee has used such best efforts and that the Mega -Yacht Marina Permits cannot be obtained, then the term "Marina" as used herein shall mean such marina as Lessee is able to construct and operate based on the existing Marina permits or such other permits and approvals from Governmental Authorities Lessee is able to obtain. If Lessor does not agree that Lessee has used such best efforts to obtain the Mega -Yacht Marina Permits,. and Lessee disputes same, then no later than thirty (30) days after Lessor's receipt of written notice from Lessee, Lessor shall provide written notice to Lessee that Lessor is submitting the matter to arbitration in accordance with subparagraph (i) below; provided, however, that Lessor shall not be entitled to submit the matter to arbitration to the extent subparagraph (f) provides otherwise. (i) If at any time (including, without limitation, at the time Lessee provides written notice to Lessor that Lessee is unable to obtain the Mega -Yacht Marina Permits) Lessor believes, reasonably and in good faith, that Lessee has not or is not using "best efforts" to obtain the Mega -Yacht Marina Permits, then Lessor shall refer such dispute to binding arbitration in accordance with Article VII. In determining whether Lessee has used its best efforts as described in subparagraph (c) above, the Arbitrator may consider whether Lessee should pursue any administrative appeals. In no event shall Lessee be required to pursue litigation (although it may, at its option, elect to do so). (j) Nothing contained herein shall be deemed from preventing Lessee, if Lessee is unable to obtain the Mega -Yacht Marina Permits after using its best efforts as described herein, from later pursuing the Mega -Yacht MarinaPermits, and if Lessee is thereafter able to obtain the Mega -Yacht Marina Permits and elects to develop and operate the Mega -Yacht Marina, then the term "Marina" as used herein shall, from and after the date Lessee obtains the last of the Mega -Yacht Marina Permits, mean and refer to the Mega - Yacht Marina, and Lessee shall develop and operate such Mega -Yacht Marina subject and in accordance with the terms and conditions of this Lease.